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Kevin M. Cooper v. United States of America

December 5, 2012

KEVIN M. COOPER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

Petitioner Kevin M. Cooper, who is currently serving a life sentence in the custody of the Bureau of Prisons, brings this action pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, Petitioner's motion is DENIED.

FACTUAL BACKGROUND

On April 8, 2008, Petitioner Kevin M. Cooper was indicted for one count of conspiracy to distribute and possession with the intent to distribute one hundred grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Mr. Cooper represented himself at trial with standby counsel present. On August 7, 2008, the jury found Mr. Cooper guilty.

The following factual background has been taken from the direct appeal decision in Mr. Cooper's case rendered by the United States Court of Appeals for the Seventh Circuit on January 11, 2010.

Initially, Cooper proceeded with an appointed lawyer, Rodney Holmes. Apparently, he was unhappy with Holmes, and so at a pretrial hearing held on June 18, 2008, he asked the court to dismiss Holmes and permit him to proceed pro se. Although the court did not explore Cooper's reasons for his dissatisfaction with Holmes, it did ask him a series of questions relating to his request for self-representation. Included among those questions were inquires about his understanding of the charges against him, his knowledge of possible penalties, any experience he had with self representation, his education, and his knowledge of trial procedures. The court specifically mentioned the Federal Rules of Evidence and warned Cooper that it would not make exceptions on his behalf. It also told Cooper that it would furnish standby counsel to help him with legal questions. Finally, it cautioned Cooper about the risks of representing himself. Cooper, who noted that he had successfully represented himself in state court in a trial involving charges for attempted murder and aggravated battery, assured the court that he understood all of this and wanted to proceed on his own. The court never mentioned to Cooper that his legs might be shackled.

Although the record does not reflect why, Cooper's legs were shackled throughout the three-day trial. In order to conceal this fact from the jury, Cooper sat at a skirted table. He stood only when the jury entered and left the courtroom, Otherwise, to ensure that the jury did not see the shackles, he avoided moving around while questioning witnesses. He was unable to approach the bench when handling exhibits, and he gave his opening and closing arguments from a seated position.

At the trial, the government introduced a number of witnesses who testified that they had purchased heroin from Cooper, or that they had sold heroin to him, or that they had seen him selling to others. In general, it was the testimony from these witnesses that established Cooper as someone who had dealt in at least 100 grams of heroin . . .

Some of the evidence was highly prejudicial to Cooper. Before trial, fearing the government might bring up the fact that some of his buyers had died from heroin overdoses, Cooper moved to exclude any autopsy reports of those deaths. The court agreed to do so, but at trial it permitted the government to make a number of references to the deaths. Cooper objected repeatedly . . . .

After the jury convicted Cooper, the court ordered the preparation of a Presentence Investigation Report ('PSR'). The PSR . . . . produced a recommended guidelines range of 360 months to life.

At the sentencing hearing, the court heard victim-impact evidence from family members of those who had died from the overdoses. . . . [The court] left no doubt about the way in which it wanted to exercise its discretion, saying 'if there were no guidelines and if I have unfettered discretion, I would give you life.' It justified that decision on several grounds. . . .The court also found . . . a life sentence was necessary to reflect the seriousness of Cooper's offense, to provide adequate deterrence, and to protect the public from him in the future. On that basis, the court imposed a life sentence, and Cooper filed an immediate notice of appeal.

See United States v. Cooper, 591 F.3d 582, 584 (7th Cir. 2010).

PROCEDURAL HISTORY

A. Direct Appeal

On November 17, 2008, this Court sentenced Mr. Cooper to a guideline sentence of life imprisonment, eight years supervised release, and a special assessment of one hundred dollars. Mr. Cooper, with the assistance of counsel, appealed the conviction and sentence. On January 11, 2010, the Seventh Circuit affirmed the conviction and rejected the following of Mr. Cooper's arguments: 1) this Court failed to warn him properly about the dangers of self-representation; 2) he was denied a fair trial because the Court ordered him to be shackled during trial proceedings; and 3) the trial was irreparably tainted by this Court's admission of evidence of five fatal overdoses. United States v. Cooper, 591 F.3d 582, 589 (7th Cir. 2010). On June 28, 2010, the United States Supreme Court denied Mr. Cooper's petition for a writ of certiorari.

B. Federal Habeas Petition

Mr. Cooper filed his pro se petition to vacate, set aside or correct sentence on March 7, 2011. Pursuant to this Court's Order, the Government responded to Mr. Cooper's Section 2255 motion on September 30, 2011. Mr. Cooper raises the following grounds for relief.

Claim One: appellate counsel was ineffective for failing to request an en banc review of the case, failing to raise speedy trial violations, failing to argue Mr. Cooper's due process was violated by his shackling during trial, and failing to argue compulsory clause violations.

Claim Two: the trial court violated Mr. Cooper's due process rights when the trial judge made impermissible statements to a witness and to Mr. Cooper in front of the jury. Claim Three: the trial court violated Mr. Cooper's right to speedy trial by denying his motion to dismiss for speedy trial violations.

Claim Four: Mr. Cooper's due process and confrontation clause rights were violated because the trial court limited the time and scope of his cross examination of witnesses. Claim Five: the Government violated Mr. Cooper's due process rights by withholding exculpatory evidence from him in violation of Brady v. Maryland, 373 U.S. 83 (1963). Claim Six: the trial court violated Mr. Cooper's due process rights by requiring he be shackled to a skirted table during trial.

Claim Seven: standby counsel was ineffective for failing to make objections, failing to advise Mr. Cooper to obtain a jury consultant, failing to assist in the pre-sentence investigation, violating attorney client privilege, and failing to object to certain discovery requests.

Claim Eight: Mr. Cooper's due process rights were violated because the amount of drugs referenced in the indictment varied from the amount of drugs reflected in the jury's verdict.

Claim Nine: Mr. Cooper's due process rights were violated by the trial court's admission of what the court knew to be false evidence and false testimony.

Claim Ten: the trial court violated Mr. Cooper's due process rights by allowing the Government to use irrelevant victim impact witnesses at sentencing.

Claim Eleven: Mr. Cooper's due process rights were violated because the trial court allowed him to be tried on a fraudulent grand jury indictment.

Claim Twelve: the trial court violated Mr. Cooper's due process rights by permitting his conviction when the Government failed to prove the mens rea of the conspiracy charge. Claim Thirteen: Mr. Cooper's due process rights were violated because the jury panel did not represent a fair cross section of the community.

Claim Fourteen: the Government violated Mr. Cooper's due process rights through the selective and vindictive prosecution of Mr. Cooper.

Claim Fifteen: the trial court violated Mr. Cooper's due process rights by imposing a sentence that was illegal because the indictment and jury verdict were inconsistent.

ANALYSIS

A.Legal Standard

1. Collateral review under 28 U.S.C. § 2255

In general, a court must grant a request to vacate, set aside, or correct a federal prison sentence when "the sentence was imposed in violation of the Constitution or laws of the United States[.]" 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary circumstances." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Moreover, "relief under Section 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Therefore, relief under Section 2255 can be granted only if an error is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quoting Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992)).

2. Evidentiary hearing

A Section 2255 motion does not require an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). Mere speculation does not warrant an evidentiary hearing, as the petitioner must file a detailed and specific affidavit showing "the petitioner has actual proof of his allegations beyond mere unsupported assertions." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. ...


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