Cooper v. Upton

Filing 20

OPINION. Signed by Judge Noel L. Hillman on 3/28/2016. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMICA S. COOPER,

Civil Action No. 14-5150 (NLH)

Petitioner,
OPINION

v.
UNITED STATES OF AMERICA,
Respondent.
APPEARANCES:
TOMICA S. COOPER
66 Marboro Lane
Willingboro, NJ 08046
Petitioner Pro Se

ROBERT STEPHEN STIGALL, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
P.O. Box 2098
Camden, NJ 08101
Attorneys for United States of America
HILLMAN, District Judge:
Tomica S. Cooper filed an Amended Motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct a 30-month
sentence entered in this Court on December 19, 2013, in United
States v. Cooper, Crim. No. 11-0111 (NLH) judgment (D.N.J. Dec.
18, 2013), after she pled guilty pursuant to a plea agreement to
one count of bankruptcy fraud.

The United States filed an

Answer and Ms. Cooper filed a reply.
1

For the reasons expressed

below, the Court will deny Cooper’s § 2255 motion and decline to
issue a certificate of appealability.
I.

BACKGROUND

On February 23, 2011, the United States filed an indictment
charging Cooper with fraudulent use of a social security number
(count one), education fraud (count two), bankruptcy fraud
(counts three and four), and fraudulent use of a credit card
(count five).
day.

A warrant for Cooper’s arrest issued the same

Officials arrested her on March 10, 2011, and she was

released on bail.

On November 10, 2011, represented by counsel,

Cooper filed an application for permission to enter a plea of
guilty to bankruptcy fraud pursuant to a plea agreement.
The plea agreement provided that, if Cooper entered a
guilty plea to count four (bankruptcy fraud), was sentenced on
the charge and otherwise fully complied with the agreement, the
United States Attorney for the District of New Jersey would not
initiate further criminal charges relating to her scheme to
defraud creditors and fraudulent use of Social Security numbers
and would move to dismiss the remaining four counts in the
indictment.

The plea agreement further provided that the

bankruptcy fraud charge carried a statutory maximum prison
sentence of five years and a statutory maximum fine, and that
the sentence to be imposed was within the discretion of the
2

sentencing judge, subject to the Sentencing Reform Act and
consideration of the United States Sentencing Guidelines.
Finally, Ms. Cooper stipulated that, if the sentence fell within
or below the Sentencing Guidelines range resulting from a total
offense level of 15, she voluntarily waived the right to file an
appeal or a motion under § 2255 challenging the sentence.
However, Cooper reserved the right to move for a sentencing
reduction pursuant to the factors outlined in 18 U.S.C. §
3553(a)(1) and (2), and both parties reserved any right they may
have under 18 U.S.C. § 3742 to appeal the sentencing court’s
determination of the criminal history category.
Sentencing occurred before this Court on December 18, 2013.
This Court initially accepted the total offense level of 17 a
criminal history category of IV recommended in the Final
Presentence Investigation Report, which carried a guideline
range for imprisonment of 37 to 46 months.

Ultimately, the

Court agreed to the parties request and imposed a sentence based
on an offense level of 15 and a criminal history category of IV.
This Court, accordingly, imposed a 30-month term of imprisonment
(putting the sentence at the low end of the Guideline range for
offense level of 15 and criminal history category of IV) and a
three-year term of supervised release.
either party.
3

No appeal was filed by

On June 25, 2014, while Cooper was incarcerated at FMC
Carswell in Fort Worth, Texas, she signed and placed in the
prison mail system a petition for habeas corpus pursuant to 28
U.S.C. § 2241 addressed to the United States District Court for
the Northern District of Texas.

By Order filed July 31, 2014,

Judge John McBryde notified her pursuant to Castro v. United
States, 540 U.S. 375, 383 (2003), that unless she withdrew her
petition, the court would recharacterize it as a motion under 28
U.S.C. § 2255 and she would be subject to the restrictions on
second or successive § 2255 motions.

By Order filed August 18,

2014, Judge McBryde construed Cooper’s § 2241 petition as a
motion to vacate, pursuant to 28 U.S.C. § 2255, the sentence
imposed by this Court and transferred the matter to this Court.
By Order filed August 21, 2014, this Court notified Cooper
of her right, pursuant to United States v. Miller, 197 F.3d 644
(3d Cir. 1999), to amend the § 2255 motion to include all
available claims.

In response, on August 21, 2014, Cooper filed

an Amended § 2255 Motion presently before the Court which raises
the following grounds:
Ground One: RECALCULATION OF CRIMINAL HISTORY POINTS.
I WAS NOT GIVEN THE PROPER CALCULATION WHEN
DETERMINING OFFENSE LEVELS.
Supporting Facts: Section 4A1.2 provides that
convictions 10 to 15 years old are not to be counted
when calculating a defendant’s criminal history score.
4

I feel that my calculation of my criminal history is
incorrect.
Ground Two: EXTRAORDINARY CIRCUMSTANCES – COUNSEL WAS
INEFFECTIVE. HE WAS PAID BUT DID NOT REPRESENT ME.
Supporting Facts: No proper counsel. Met with my
attorney only twice prior to sentencing. No motion
filed for 5K2.13. No mental health downward
departure. No plea bargain options. I met my
attorney three times, one time for consultation,
second to pay him $5,000.00 and third time at
sentencing. My medical history contains over a
hundred pages which was not presented to the Court.
Ground Three: I AM REQUESTING A ONE LEVEL REDUCTION
FOR MENTAL ILLNESS – DIMINISHED CAPACITY.
Supporting
evaluation
review was
11, 2013.

Facts: My medical review/mental health
was done after my sentencing. My medical
done March 2014. I was sentenced December
Mental health diagnosis: schizophrenia.

(Amended Petition, ECF No. 12 at 6-7.)
On August 8, 2015, the Government filed an Answer, arguing
that the motion should be denied on the merits.1 (Answer, ECF No.
18.)

Cooper filed a Reply on August 13, 2015. (ECF No. 19.)

On

February 10, 2016, she was released from federal custody to

1

The Court notes that in her plea agreement Cooper stipulated
that, if the sentence fell within or below the Guidelines range
resulting from a total offense level of 15, which is what
happened in this case, she voluntarily waived the right to file
an appeal or a motion under § 2255 challenging the sentence.
However, because the Government expressly declines to seek to
enforce this waiver, (ECF No. 18 at 10 n.4), the Court will not
do so sua sponte and will consider the merits of the grounds
raised in the § 2255 motion.
5

serve her three-year term of supervised release.

See Inmate

Locator, https://www.bop.gov/inmateloc/ (March 18, 2015).
II.
A.

DISCUSSION

Jurisdiction
Section 2255 of Title 28 of the United States Code

provides:

“A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”

28 U.S.C. § 2255(a).

Because Cooper was incarcerated on her 30-month sentence when
she filed the § 2255 motion in 2014, she satisfied the “in
custody” jurisdictional requirement of § 2255.

See Maleng v.

Cook, 490 U.S. 488, 490-91 (1989) (“We have interpreted the
statutory language as requiring that the habeas petitioner be
‘in custody’ under the conviction or sentence under attack at
the time his petition is filed.”)
Although Cooper was released from custody on February 10,
2016, her § 2255 motion is not moot because she is presently
serving her three-year term of supervised release.

See United

States v. Doe, 810 F.3d 132, 143 (3d Cir. 2015) (“Because the
6

District court may reduce the duration of Doe’s supervised
release if he prevails [on his § 2255 motion], the case is not
moot.”)
B.

Ground One:

Incorrect Criminal History Category

In Ground One, Cooper argues that this Court incorrectly
calculated her criminal history category as IV by counting
crimes over ten years old.

As explained above, Probation

recommended and this Court found a criminal history category of
IV.

The Government correctly argues that Cooper’s criminal

history category was properly calculated at IV because the Court
properly included sentences imposed within 10 years of the
commencement of the instant offense on May 16, 1997.

(ECF No.

18 at 12.)
United States Sentencing Guideline § 4A1.2, entitled
“Definitions and Instructions for Computing Criminal History,”
provides in section (e), entitled “Applicable Time Period,” as
follows:
(1) Any prior sentence of imprisonment exceeding one
year and one month that was imposed within fifteen
years of the defendant's commencement of the instant
offense is counted. Also count any prior sentence of
imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year
period.

7

(2) Any other prior sentence that was imposed within
ten years of the defendant's commencement of the
instant offense is counted.
(3) Any prior sentence not within the time periods
specified above is not counted.
(4) The applicable time period for certain sentences
resulting from offenses committed prior to age
eighteen is governed by § 4A1.2(d)(2).
U.S. Sentencing Guidelines Manual § 4A1.2.
Comment 8 to U.S. Sentencing Guidelines Manual § 4A1.2
provides that, as used in § 4A1.2(d)(2) and (e), “the term
‘commencement of the instant offense’ includes any relevant
conduct.”
cmt.n.8.

U.S. Sentencing Guidelines Manual § 4A1.2(e)(2)
Cooper’s plea agreement states that “Tomica Cooper

specifically agrees that for the purposes of sentencing, the
other offenses in the Indictment will be treated as relevant
conduct pursuant to U.S.S.G. § 1B1.3.”2 United States v. Cooper,
Crim. No. 11-0111 (NLH) plea agreement (ECF No. 23) (D.N.J. Nov.
10, 2011).

Count four of the indictment states that Cooper

filed her first fraudulent bankruptcy petition on May 16, 1997.
See United States v. Cooper, Crim. No. 11-0111 (NLH) indictment
(ECF No. 1 at 9) (D.N.J. Feb. 23, 2011).

2

As set forth above,

Section 1B1.3 of the Sentencing Guidelines is entitled
“Relevant Conduct (Factors that Determine the Guideline Range).”
U.S. Sentencing Guidelines Manual § 1B1.3.
8

U.S. Sentencing Guideline § 4A1.2(e)(2) provides that any prior
sentence which did not include a sentence of imprisonment “that
was imposed within ten years of the defendant's commencement of
the instant offense is counted” to calculate the criminal
history category.

U.S. Sentencing Guideline Manual §

4A1.2(e)(2).
According to the Presentence Investigation Report, Cooper
was sentenced in the Superior Court of New Jersey on August 7,
1992, for fraudulent use of a credit card; on October 18, 1996,
for Conspiracy; on March 28, 2002, for theft by deception; on
September 10, 2002, for hindering apprehension; on July 11,
2005, and March 30, 2007, for issuing bad checks; and on April
28, 2011, for insurance fraud.

Because these sentences were

imposed within ten years of May 16, 1997, this Court properly
counted them in computing Cooper’s criminal history category.
In addition, at the time the offense in count four was
committed, Cooper was on probation and this added two points,
see U.S. Sentencing Guidelines Manual § 4A1.1(d), such that the
total of the criminal history points was 9, which established a
criminal history category of IV.

Because this Court did not

count as criminal history any sentence imposed more than ten
years prior to the commencement of the instant offense on May
16, 1997, Cooper is not entitled to relief on Ground One.
9

C.

Ground Two:

Counsel Was Ineffective at Sentencing

In Ground Two, Cooper asserts that defense counsel was
constitutionally deficient for failing to meet with her more
than two times prior to sentencing, failing to file a motion for
a downward departure based on her mental health pursuant to U.S.
Sentencing Guideline § 5K2.13, and failing to present her
medical records to this Court.

The Government argues that

Cooper has not established an ineffective assistance claim
because she failed to show deficient performance or prejudice.
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.

U.S. Const.

A claim that counsel’s assistance was so defective

as to require reversal of a conviction has two components, both
of which must be satisfied.
U.S. 668, 687 (1984).

See Strickland v. Washington, 466

First, the defendant must “identify the

acts or omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.” Id. at 690.
The court must then determine whether, in light of all the
circumstances at the time, the identified errors fell “below an
objective standard of reasonableness[.]” Hinton v. Alabama, 134
S.Ct. 1081, 1083 (2014) (per curiam).

To establish prejudice,

the defendant must show that “there is a reasonable probability

10

that the result of the trial would have been different absent
the deficient act or omission.” Id. at 1083.
Cooper asserts that counsel was deficient because she paid
him $5,000 and he met with her only two times prior to
sentencing.

She is not entitled to relief on this claim because

she does not assert that, but for counsel’s failure to meet with
her more than three times, there is a reasonable probability
that she would not have pleaded guilty and would have insisted
on going to trial, see Hill v. Lockhart, 474 U.S. 52, 59 (1985),
or that her sentence would have been lower than the 30 months
this Court imposed.
Next, Cooper asserts that counsel was deficient in failing
to move for a downward departure pursuant to U.S. Sentencing
Guideline § 5K2.133 based on her mental health and diagnosis of

3

U.S. Sentencing Guideline § 5K2.13 authorizes a court to grant
a downward departure if the defendant committed the offense
while suffering from a significantly reduced mental capacity and
that reduced capacity contributed substantially to the
commission of the offense. See U.S. Sentencing Guideline Manual
§ 5K2.13. However, the Court may not grant a diminished
capacity departure under this section if the reduced mental
capacity was caused by the voluntary use of drugs or
intoxicants, id., and Cooper’s Presentence Investigation Report
states that Cooper had consumed significant amounts of alcohol
since her late 20’s, she last consumed alcohol and used cocaine
on July 4, 2010, and at the time of the preparation of the
report she was attending 12 step meetings approximately three
times per week, as required by PTS and drug court.
11

schizophrenia and failing to present her health records.
However, Cooper's attorney did move for a downward departure
based on her physical condition, together with her mental
illness, pursuant to U.S. Sentencing Guideline § 5H1.4.4
presented health records to this Court.5

He also

Counsel filed a 12-page

sentencing memorandum in which he sought a downward departure
or, in the alternative, a sentencing variance based on her
physical and mental health, referring to the Presentence
Investigation Report and Cooper’s mental and physical health
records which were attached to the memorandum.

The Presentence

Investigation Report included a two and one-half page singlespaced section describing Cooper’s mental and emotional health
history and a section on her physical health and condition.

For

example, the Presentence Investigation Report states that Ms.
Cooper began hearing voices while she was in high school, the
voices got progressively worse after her daughter was born, she

4

Section 5H1.4 states that physical condition may be relevant in
determining whether a departure is warranted, if the condition,
individually or in combination with other offender
characteristics, is present to an unusual degree. See U.S.
Sentencing Guidelines Manual §5H1.4.
5

The health records included treatment records from Drenk
Behavioral Health Center, as well as Penn Medicine records, a
Burlington County Drug Court Probation Officer’s Report dated
February 8, 2012, and the Pretrial Services Memorandum dated
October 12, 2012.
12

sought mental health treatment in part because she heard voices,
she was taken to the emergency room in March 2000 because she
had been hearing voices, she cut her wrists at age 22 because
the voices told her to do so, she was diagnosed by Drenk
Behavioral Health Center in 2010 as suffering from
schizoaffective disorder, and she was undergoing treatment for
this condition at the time of the preparation of the Presentence
Investigation Report.

The report also states that Cooper had

six abdominal hernia repair surgeries and abdominoplasty
surgery, and that she has a large ovarian cyst and needs gastric
bypass surgery for obesity.
Cooper’s attorney sought a downward departure based on
Cooper’s mental and physical health and he presented her health
records to this Court.

Counsel cannot be found deficient

because he did not specifically ground the request for a
downward departure on § 5K2.13 where there was no dispute that
Cooper had consumed large amounts of alcohol while she was
committing bankruptcy fraud. See Ross v. District Attorney of
the County of Allegheny, 672 F.3d 198, 211 n.9 (3d Cir. 2012)
(“[C]ounsel cannot be deemed ineffective for failing to raise a
meritless claim.”)(quoting Werts v. Vaughn, 228 F.3d 178, 202
(3d Cir. 2000)).

In addition, Cooper has not shown that she was

prejudiced, as she has not shown that there is a reasonable
13

probability that this Court would have imposed a lower term of
imprisonment if counsel had specifically referred to § 5K2.13,
instead of § 5H1.4 when seeking a downward departure.
D.

Ground Three: Request for Downward Departure Based on
Diagnosis of Schizophrenia
In Ground Three, Cooper is “requesting a one level

reduction for mental illness – diminished capacity” based on her
diagnosis of schizophrenia that was made three months after this
Court sentenced her.

(ECF No. 12 at 7.)

This Court must deny her request to reduce her sentence
based on her diagnosis of schizophrenia made three months after
sentencing.

Section 2255 authorizes a federal prisoner to claim

that the sentence was imposed in violation of federal law, that
the court was without jurisdiction to impose the sentence, that
the sentence was in excess of the maximum authorized by law or
is otherwise subject to collateral attack, see 28 U.S.C. § 2255,
but in this ground Cooper is not challenging the sentence
imposed.

Rather, she seeks an order modifying a previously

imposed sentence.

However, "[a] district court does not have

inherent authority to modify a previously imposed sentence; it
may do so only pursuant to a statutory authorization."

United

States v. Smartt, 129 F. 3d 539, 540 (10th Cir. 1997) (quoting
United States v. Mendoza, 118 F. 3d 707, 709 (10th Cir. 1997)).
14

The Sentencing Reform Act specifies that a court may not modify
a term of imprisonment once it has been imposed, except pursuant
to a motion for reduction of sentence under 18 U.S.C. § 3582(c)6.

6

Section 3582(c) provides:
(c) Modification of an imposed term of imprisonment.-The court may not modify a term of imprisonment once
it has been imposed except that--(1) in any case-(A) the court, upon motion of the Director of the
Bureau of Prisons, may reduce the term of imprisonment
. . . after considering the factors set forth in
section 3553(a) to the extent that they are
applicable, if it finds that-(i) extraordinary and compelling reasons warrant such
a reduction; or
(ii) the defendant is at least 70 years of age, has
served at least 30 years in prison . . . ; and
(B) the court may modify an imposed term of
imprisonment to the extent otherwise expressly
permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure; and
(2) in the case of a defendant who has been sentenced
to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion
of the defendant or the Director of the Bureau of
Prisons, or on its own motion, the court may reduce
the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is
consistent with applicable policy statements issued by
the Sentencing Commission.

18 U.S.C. § 3582.

15

See United States v. Higgs, 504 F. 3d 456, 464 (3d Cir. 2007)
(18 U.S.C. § 3582(c) limits the jurisdictional authority of
sentencing courts to entertain a motion for reduction of
sentence).

Cooper’s request to modify the sentence imposed is

denied for lack of jurisdiction under 28 U.S.C. § 2255.7
E.

Certificate of Appealability
Because Cooper has not made a substantial showing of the

denial of a constitutional right, no certificate of
appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B).
See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
III.

CONCLUSION

This Court denies the amended § 2255 motion and denies a
certificate of appealability.

/s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
DATED:

March 28, 2016

At Camden, New Jersey

7

This Court will not construe ground three as a motion to modify
the sentence because Cooper has not established any basis for
relief under 18 U.S.C. § 3582(c). See United States v. Smartt,
129 F. 3d at 541 ("Unless the basis for resentencing falls
within one of the specific categories authorized by section
3582(c), the [sentencing] court lacked jurisdiction to consider
Mr. Smartt’s request").
16