Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cooper v. Fisher

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

January 29, 2018

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

          MEMORANDUM OPINION AND ORDER

          SHARION AYCOCK, U.S. DISTRICT JUDGE

         Petitioner Manuel Cooper, an inmate in the custody of the Mississippi Department of Corrections, is proceeding pro se in this federal habeas corpus action challenging his State-court conviction of false pretenses, and his resulting life sentence as an habitual offender pursuant to Miss. Code Ann. § 99-18-83.[1]

         I Factual and Procedural History

         On April 24, 2007, Cooper, along with three other males, approached elderly widow Hazel Baker and offered to clean the gutters on her home in exchange for approximately $200.00. Baker testified that she agreed to the price, and the men began working on the exterior of her home. Baker stated that after an hour or two, Cooper told her that the men were finished and stated that the fee was $2, 500. She testified that Cooper agreed to “drop” the price to $2, 000, but that he stated he had to be paid in cash. When Baker told him she had no cash and could not drive to the bank because of a recent surgery, Cooper offered to drive her to the bank. Baker accepted his offer, and she and Cooper drove to the bank where Baker drew out $2, 000.

         Back at her home, Baker gave Cooper the money and requested a receipt. Cooper told her that he did not have any receipts but would bring her a receipt the following day. Baker stated that Cooper wrote the name “Tom Lee” and a telephone number on a piece of paper, representing the name and number as his own. Baker testified that she soon realized that the name and number were fictitious and called her son, who subsequently contacted the Southhaven Police Department.

         Cooper was charged with false pretenses under Miss. Code Ann. § 97-19-39, which, at the time of Cooper's trial, provided in relevant part:

Every person who, with the intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10, 000.00).

         Miss. Code Ann. § 97-19-39(2). Cooper's trial commenced on April 28, 2009, and evidence was produced to demonstrate that the men had not cleaned the gutters and had not, therefore, performed the task for which they had been paid. Cooper testified that he did not personally discuss the work with Baker, as one of the other men made the offer to Baker. Cooper stated that he understood the agreed job to consist of the cleaning and repair of Baker's vinyl siding, not cleaning the gutters. Cooper stated that the vinyl work was completed.

         Following a ten-minute deliberation, the jury found Cooper guilty of false pretenses. Sentencing was continued to allow the defendant an opportunity to prepare evidence to rebut the State's request that Cooper be deemed an habitual offender pursuant to Miss. Code Ann. § 99-19-83.[2] On June 2, 2009, sentencing proceedings were concluded, and Cooper was sentenced to serve life imprisonment as an habitual offender.

         With the assistance of new counsel, Cooper appealed his conviction and sentence to the Mississippi Supreme Court, raising the following issues:

1. Whether the trial court erred in failing to grant [Cooper]'s motion for a directed verdict where the evidence failed to show that [Cooper] intended to cheat or defraud the alleged victim.
2. Whether the trial court erred in failing to grant [Cooper]'s motion for a new trial where the evidence showed that the issue herein was a civil and contractual dispute and not false pretense.
3. Whether the trial court erred in allowing hearsay testimony of police officer Greg Oltremari, offered as the truth of the matter.

         The Mississippi Supreme Court assigned the case to the Mississippi Court of Appeals, which affirmed the trial court's judgment on April 26, 2011. Cooper v. State, 68 So.3d 741 (Miss. Ct. App. 2011) reh'g denied June 27, 2011, cert. denied August 25, 2011 (No. 2009-KA-00924-COA).

         Aggrieved of this decision, Cooper, proceeding pro se, filed on September 15, 2011, in the Mississippi Supreme Court a motion for leave to proceed in the trial court. See Doc. #50-2. By order filed September 29, 2011, the Mississippi Supreme Court dismissed the motion without prejudice after it determined that Cooper failed to attach a motion for post-conviction relief. See Doc. #50-3. On February 18, 2014, Cooper filed a second application for leave to seek post-conviction relief, this time with the motion attached. See Doc. #50-4. In the motion, the following grounds were raised:

Ground One: Whether Cooper was deprived of his constitutional right to confront the witnesses against him at bifurcated trial and less than competent evidence was used to enhance? [Creating an illegal sentence].
Ground Two: Whether Cooper was convicted under the wrong statute? . . . Or, again does this constitute ineffective assistance of counsel?

         By order filed May 14, 2014, the Mississippi Supreme Court denied Cooper's motion, holding that the issues raised therein “lack sufficient merit to warrant an evidentiary hearing, ” and further finding “that these issues are waived because they were not raised on direct appeal.” Doc. #50-5. Cooper filed a petition for rehearing from the decision, but the petition was denied by order filed on June 17, 2014. See Doc. #50-6.

         On or about June 2, 2014, Cooper filed the instant petition pro se, raising the following issues:

Ground One: Whether Cooper was deprived of his constitutional right to confront witness against him at bifurcated trial on less than competent witness was used. The prosecutor was given multiple attempt to bring enhancement of charges. . . the pen pack is testimonial and demands the testimony of the custodian of records. The indictment was amended which is improper because 99-19-83 affects substance not the form. Ineffective assistance of counsel to allow the illegal sentence.
Ground Two: Whether Cooper was convicted under the wrong statute or again does this constitute ineffective assistance of counsel. It appears that prosecutor blended two statutes to satisfy the needs to prosecute of Miss. Code Ann. 97-19-33 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.