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Cooper v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

November 6, 2017

ARTHUR COOPER, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL., Respondents.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         I. Status

         Petitioner Arthur Cooper, an inmate of the Florida penal system, initiated this action on March 5, 2015, [1] by filing a pro se Motion for Habeas Corpus Relief (Petition; Doc. 1) under 28 U.S.C. § 2254. He filed an Amended Petition (Doc. 8) on July 15, 2016. In the Amended Petition, Cooper challenges a 2010 state court (Suwannee County, Florida) judgment of conviction for lewd and lascivious battery. Respondents have submitted a memorandum in opposition to the Amended Petition. See Respondents' Response to Petition for Writ of Habeas Corpus (Response; Doc. 17) with exhibits (Resp. Ex.) . On October 31, 2016, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. 12), admonishing Cooper regarding his obligations and giving Cooper a time frame in which to submit a reply. On October 19, 2017, Cooper notified the Court that he does not intend to file a reply. See Motion to Rule (Doc. 22). This case is ripe for review.

         II. One-Year Limitations Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations on petitions for writ of habeas corpus. Specifically, 28 U.S.C. § 2244 provides:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         Respondents contend that Cooper has not complied with the one-year period of limitations set forth in 28 U.S.C. § 2244(d). The following procedural history is relevant to the one-year limitations issue. On September 11, 2001, the State of Florida charged Cooper with six counts of lewd and lascivious battery on a child in Suwannee County circuit court case number 2001-CF-256 (Suwannee case) . See Resp. Ex. 2A at 1-3. Pursuant to a negotiated plea agreement, see id. at 5-7, Cooper entered a plea of guilty to counts one, two and three, see Id. at 8.[2] The court sentenced Cooper to seven years of sex offender probation with the first two years on community control. See id. at 8-9, 15-22.

         In another case (Columbia County circuit court case number 2001-CF-465 (Columbia case)), the State of Florida charged Cooper with two counts of lewd and lascivious battery on a child. See Resp. Ex. 1A at 11-12. Pursuant to a negotiated plea agreement, see id. at 96-97, Cooper entered a plea of guilty to count one.[3] The court sentenced Cooper to seven years of sex offender probation with the first two years on community control, to run concurrently with the Suwannee case. See id. at 98-100, 102.

         In early April 2006, a probation officer filed affidavits of probation violation in the Suwannee and Columbia cases. See Resp. Exs. 1A at 117-18; 2D at 12-13. On May 30, 2006, the court revoked Cooper's probation and sentenced him to concurrent three-year terms of imprisonment followed by seven years of sex offender probation. See Resp. Exs. 1A at 128-33, 204-08; 2A at 28-32; 2D at 14-31; 2E.

         In July 2009, a probation officer filed affidavits of probation violation in the Suwannee and Columbia cases. See Resp. Exs. IB at 210; 2A at 35-36. Cooper, with the benefit of counsel, filed a motion to suppress an audio recording of a conversation between him and the victim that was the basis for the violations. See Resp. Ex. 2A at 44. The circuit court held an evidentiary hearing on November 5, 2009, see Resp. Exs. 1C; 2C, and ultimately denied the motion, see Resp. Exs. IB at 231; 2A at 49. On April 8, 2010, circuit court Judge Paul Bryan held an evidentiary hearing on the alleged violations of probation in both cases. See Resp. Exs. ID; 2B. The court found that Cooper violated his probation. In the Suwannee case, the court sentenced him to a term of imprisonment of fifteen years for count one and fifteen-year terms of sex offender probation for counts two and three, to run consecutively to each other and the sentence imposed for count one. See Resp. Exs. ID at 127-28; 2B at 127-28. In the ...


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