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Cooper v. United States

United States District Court, S.D. Georgia, Savannah Division

June 7, 2018

JEROME ANTWAN COOPER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Jerome Antwan Cooper was indicted, convicted by a jury of his peers, and sentenced to 120 months' imprisonment as a felon in possession of a firearm. Docs. 1 (indictment), 53 (jury verdict), 75 (judgment), 95 (appeal opinion affirming conviction and sentence). As summarized by the Court of Appeals:

On March 10, 2014, Jeff Hodges, an employee at a Home Depot in Savannah, Georgia, noticed suspicious behavior by two shoppers. After reporting the suspicious behavior to his supervisor and another employee, he approached the two men and identified himself as a Home Depot asset protection employee. One man ran away, but the other man -- later identified as Cooper -- did not. Hodges and Cooper got into a physical altercation, and Hodges “did everything [he] could to control [Cooper's] hands” to prevent Cooper from reaching into his pocket. Hodges called for help and his supervisor and the other Home Depot employee came to his aid.
During this struggle, Officer Brandon Tufts of the Savannah- Chatham Metropolitan Police Department was in the Home Depot parking lot assisting another officer with a traffic accident. A Home Depot employee yelled to Officer Tufts that “loss prevention was taking a shoplifter into custody near the garden entrance.” After arriving on the scene, Officer Tufts saw a group of Home Depot employees on the ground trying to control Cooper by “keeping his hands away from his body.” Tufts identified himself to Cooper, told him to stop resisting, and said “I'm going to place [you] in handcuffs. . . . until I figure [ ] out exactly what's going on.” He then put Cooper in handcuffs and gathered information about what happened from the Home Depot employees.
Next, Officer Tufts asked Cooper whether “he had anything on him that would hurt” Tufts. Tufts could not recall whether Cooper responded in the negative or did not reply at all. But he observed that a heavy object seemed to be in Cooper's right shorts pocket, and suspected that Cooper had a weapon. Thus, Officer Tufts searched Cooper's pocket and found a loaded pistol. At the time, Cooper was a convicted felon.

United States v. Cooper, 689 Fed.Appx. 901, 902 (11th Cir. 2017).

         Cooper, unhappy with his lot, has been arguing counsel was deficient at every stage of the proceedings. Doc. 24 (motion to dismiss counsel); doc. 33 (letter complaining about counsel's performance, particularly her failure to meet with him until the motions deadline had expired and her decision not to file a motion to suppress); docs. 32 & 40 (attorney inquiry hearing denying motion to appoint new counsel); docs. 35 & 41 (reconsideration attorney inquiry hearing again denying motion to appoint new counsel); docs. 57, 59 & 71 (requesting new counsel be appointed to raise his IAC claims on appeal); doc. 63 (counseled motion for new trial preserving his IAC claims); doc. 68 (pro se motion for a new trial on IAC grounds, requesting new counsel be appointed to represent him). Having lost his appeal, which had been largely predicated on trial counsel's alleged failures, he has returned in this collateral proceeding to argue that appellate counsel too was deficient in failing to convince the Eleventh Circuit to see things his way. Doc. 103 at 4-7; doc. 109 at 1-9. The Government moves to dismiss his 28 U.S.C. § 2255 motion, contending that Cooper's IAC claims are all utterly without merit. Doc. 108. The Court agrees.

         I. APPELLATE COUNSEL'S PERFORMANCE

         Cooper faults appellate counsel for failing to convince the Eleventh Circuit that trial counsel was deficient, that the district court erred in failing to appoint new counsel, and that he was prejudiced as a result. Doc. 103. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court created a two-part test for determining whether counsel's assistance was ineffective. First, the movant must demonstrate that his attorney's performance was deficient, which requires a showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. Second, he must demonstrate that the defective performance prejudiced the defense to such a degree that the results of the trial cannot be trusted. Id. Here, Cooper has failed to meet either prong.

         Cooper clearly believes now, as he did from the start, that trial counsel's failure to meet with him in person before the deadline for filing motions had closed comprised ineffective assistance. Had counsel done so, she would certainly have filed a motion to suppress the gun --regardless of whether it was warranted under the case law. That motion, he sincerely believes, would have wrapped up the entire matter long before trial. This argument, of course, has been a loser, both before the Magistrate Judge, the District Judge (docs. 40 & 41), and on appeal (doc. 95).

         As he has been told at each stage of the proceedings, searches by private citizens “do[ ] not implicate the Fourth Amendment” unless they are acting “as an instrument or agent of the government.” United States v. Steiger, 318 F.3d 1039, 1045 (11th Cir. 2003). Cooper was nabbed by Home Depot loss prevention agents on his way out into the parking lot. They are private citizen, not government actors within the meaning of the Fourth Amendment.[1] Because any motion to suppress the gun would have been denied, Cooper was not prejudiced in any way by counsel's refusal to file a hopeless motion to suppress. See Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (the Sixth Amendment does not require counsel to raise every non-frivolous argument on a client's behalf); Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2015) (“If a search was constitutional, then counsel is not obligated to move to suppress the evidence . . . and a defendant is not prejudiced by counsel's failure to do so.”).

         Moreover, trial counsel's failure to meet with Cooper sooner does not prove anything about the sufficiency of her evaluation of the merits of such a motion. Chandler v. United States, 218 F.3d 1305, 1318 (11th Cir. 2000) (“[C]ounsel need not always investigate before pursuing or not pursuing a line of defense. Investigation (even a nonexhaustive, preliminary investigation) is not required for counsel reasonably to decline to investigate a line of defense thoroughly.”); Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999) (to be effective, counsel is not required to “pursue every path until it bears fruit or until all hope withers.”); see also Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994) (the requirement to “investigate” a case “reflects the reality that lawyers do not enjoy the benefit of endless time, energy, or financial resources.”). As Cooper is aware, “a court should be highly deferential to those choices . . . that are arguably dictated by a reasonable trial strategy.” Devier v. Zant, 3 F.3d 1445, 1450 (11th Cir.1993). Indeed, trial counsel's “plausible tactical reasons for why she did not file a motion to suppress, ” including not wanting Cooper to admit under oath that he had a gun in his pocket and wanting to hold her trial cross-examination strategy close to the vest, formed the basis of the Court of Appeals' denial of Cooper's IAC claim on appeal. Cooper, 689 Fed.Appx. at 904 (explaining that “Cooper has not defeated the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'”).

         But Cooper has doubled down, arguing that appellate counsel too was ineffective for failing to win that argument on appeal. Doc. 103 at 5-6. He contends appellate counsel should have better argued that trial counsel could not possibly have learned all the facts she needed without seeing him in person, and that she clearly did not do the research necessary to evaluate the merits of the desired suppression motion until after meeting him (after the deadline to file the motion had passed, and the window for raising such an argument had closed[2]). Had she done so, she would have filed a winning suppression motion because she would have known the facts: that no “probable cause” existed for his warrantless arrest where “Officer Tufts arrested [him] without having witnessed him commit a crime, without a warrant, and without eye witness testimony that a crime had occurred.” Doc. 1 at 47.

         This language, of course, is raised verbatim from the argument already resoundingly rejected on appeal: that the arresting officer lacked probable cause, having “arrested [ ] Cooper without a warrant, without having witnessed him commit a crime, and without eyewitness testimony that a crime had occurred.” Doc. 108, Exh. B (Cooper Appeal Brief) at 21-22. Beyond mere dissatisfaction with the outcome -- which does not comprise ineffective assistance of counsel -- Cooper does not actually point to anything appellate counsel failed to do or ought to have argued differently. That appellate counsel argued that trial counsel's performance was deficient to the best of his abilities, and lost, does not render his performance deficient. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (there is no “constitutional right to compel appointed counsel to press [even] nonfrivolous points”).[3]

         Cooper also argues that appellate counsel was ineffective for failing to convince the Court of Appeals that trial counsel was profoundly, generally ineffective. Doc. 1 at 8 (arguing that trial counsel failed to apprise him of the risks of trial and strength of the Government's case). He lists the Government's “11th hour ‘Perry Mason' style witness, ” Michael Claxton, as being key to his refusal to accept the Government's plea offer.[4]Id. at 32, 52-53. Had Cooper known the Government would call one of the three Home Depot employees who ...


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