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Cooper v. Fisher

United States District Court, N.D. Mississippi, Oxford Division

June 2, 2017

MANUEL COOPER PETITIONER
v.
MARSHALL FISHER and ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI

          MEMORANDUM OPINION AND ORDER

          Sharion Aycock U.S. DISTRICT JUDGE

         The United States Court of Appeals for the Fifth Circuit remanded this case for a determination as to whether Petitioner Manuel Cooper is entitled to equitable tolling of the one-year limitations period applicable to his federal habeas petition. See 28 U.S.C. § 2244(d). On May 24, 2017, the Court held an evidentiary hearing where it heard witness testimony and received evidence relevant to that issue. The Court now finds, for the reasons that follow, that Cooper is entitled to have the one-year limitations period equitably tolled.

         Statute of Limitations

         Because Cooper filed his § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), his petition is governed by the provisions of the AEDPA. See Lindh v. Murphy, 521 U.S. 320 (1997). A petition filed under the AEDPA must comply with the statute's one-year period of limitations, which runs from the latest of four events, the ordinary triggering event being the date on which the judgment of conviction became final. See 28 U.S.C. § 2244(d)(1)(A). The limitations period is statutorily tolled while a properly filed motion for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). However, statutory tolling aside, the standard is not inflexible, and the limitations period may also be equitably tolled “in rare and exceptional circumstances.” United States v. Patterson, 211 F.3d 927, 928 (5th Cir. 2000).

         Manuel Cooper was convicted of one count of false pretense in the Circuit Court of DeSoto County, Mississippi, and was sentenced on June 2, 2009, as an habitual offender to serve life in the custody of the Mississippi Department of Corrections (“MDOC”). Cooper was represented by the Office of Indigent Appeals on direct appeal, and his conviction and sentence were affirmed by the Mississippi Supreme Court. Cooper's conviction became “final” for purposes of the AEDPA on November 23, 2011 - 90 days after certiorari was denied by the Mississippi Supreme Court on August 25, 2011. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (holding that where a defendant does not seek certiorari review, finality is established by the expiration of the 90 day period to seek such review with the Supreme Court); see also 28 U.S.C. § 2244(d). Cooper did not submit a properly filed post-conviction application to toll the federal limitations period. Therefore, the federal habeas deadline date was November 23, 2012.

         Equitable Tolling

         Cooper's federal habeas petition was signed on May 1, 2014, and it was stamped “filed” on June 2, 2014. Doc. #1 at 1, 14. Either date is well past the one-year deadline. However, Cooper may be entitled to an equitable tolling of this period if he can demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks and citation omitted).

         The diligence required by a petitioner in the equitable tolling consideration is “reasonable diligence, ” which is a “fact-intensive inquiry” resolved by comparing this petitioner's diligence to the diligence shown by other petitioners in similar circumstances. Holland, 560 U.S. at 653-54; Palacios v. Stephens, 723 F.3d 600, 605 (5th Cir. 2013) (comparing petitioner's diligence with that shown of petitioners in similar circumstances). Diligence in pursuit of one's remedies is a requirement independent of his attorney's efforts. See, e.g., Palacios, 723 F.3d 600, 605 (noting petitioner seeking to establish due diligence must exercise diligence even when he receives inadequate legal representation) (citing Manning v. Epps, 688 F.3d 177, 185 (5th Cir. 2012)). Such “[d]iligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize” that he should act. Johnson v. United States, 544 U.S. 295, 308 (2005); see also Palacios, 723 F.3d 600, 605 (noting petitioner's knowledge of deadline and failure to act relevant to reasonable diligence analysis).

         In reviewing whether “extraordinary circumstances” exist, the issue is “not how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for th[is] prisoner[.]” Diaz v, Kelly, 515 F.3d 149, 154 (2nd Cir. 2008). An attorney's deceit concerning his efforts to obtain relief on the client's behalf, and the client's reliance upon the attorney's misrepresentations, may constitute extraordinary circumstances warranting equitable tolling. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (finding attorney deception in convincing prisoner he has filed timely motion for post-conviction relief presents rare and extraordinary circumstance which is beyond prisoner's control and which may warrant equitable tolling of the one-year limitations period); Vineyard v. Dretke, 125 F. App'x 551, 552-54 (5th Cir. 2005) (finding equitable tolling may be appropriate where attorney lied and said that the state motion was pending, and petitioner diligently filed his § 2254 motion within weeks after learning that the attorney had never filed it).

         Additionally, instances of “professional misconduct” by an attorney, such as failure to communicate with his client, may constitute an extraordinary circumstance warranting equitable tolling if the misconduct is not a “garden variety claim of excusable neglect, ” but rather is such that it amounts to “egregious behavior” that amounts to attorney abandonment. See Holland, 560 U.S. at 649-53; Maples v. Thomas, 565 U.S. 266, 283 (2012) (“[U]nder agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his on behalf when he lacks reason to believe his attorneys. . . are not representing him.”).

         Background & Evidence Adduced at Hearing

         Following the denial of certiorari in his case by the Mississippi Supreme Court on August 25, 2011, Cooper filed a pro se “Motion for Leave to Proceed in the Trial Court” in the Mississippi Supreme Court. Doc. #10-3. By order filed September 28, 2011, the Mississippi Supreme Court dismissed the motion without prejudice, finding that Cooper failed to attach to it a motion for post-conviction relief. Doc. #10-4. Cooper did not resubmit his motion with the motion for post-conviction relief attached. At his federal evidentiary hearing, Cooper stated that he had a third grade education, and his attorney argued that Cooper's failed attempt to proceed pro se demonstrated to him his inability to navigate the post-conviction process without an attorney's assistance. Subsequently, on or about November 14, 2011, Cooper's family - his sister, Dovie Girton, and his niece, Carol Harrison - retained the services of John McNeal, an attorney who has been in the practice of law for approximately forty years, to “look into an appeal” on Cooper's behalf. Pl.'s Ex. 1.

         At the evidentiary hearing, Harrison testified that she and Dovie each initially contributed $2, 000 (for a total of a $4, 000 retainer) for McNeal's review of Cooper's file, with the understanding that McNeal would be paid a total of $9, 000 to pursue post-conviction relief on Cooper's behalf. She stated that McNeal advised that he did not require the additional $5, 000 up front, however, and that the additional funds would only be required when the case went to court. McNeal, on the other hand, testified that he requested and received an $8, 000 flat-rate fee for reviewing Cooper's file, with the understanding that additional payment would be required for him to file a post-conviction petition on Cooper's behalf. According to McNeal, and confirmed by Cooper and his family, this fee arrangement was not memorialized in a contract or a letter.

         Cooper claims he first met with McNeal in February 2012, and that he turned over all of his legal documents to McNeal at that time. Doc. #11 at 25. McNeal stated that he initially thought that Cooper might be able to raise an ineffective assistance of counsel claim on post-conviction review, and he stated that Cooper and his family were advised that McNeal's pursuit of the post-conviction action would require additional payment of $5, 000. In a March 15, 2012 letter to Cooper that was copied to Girton, McNeal stated that he was prepared to file a post-conviction application on Cooper's behalf “upon payment of the balance of [the] retainer in the amount of $5, 003.00” Pl.'s Ex. 2. Cooper claimed that he contacted Girton to arrange for McNeal to be paid. On March 28, 2012, Cooper's family ...


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