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Cooper v. Kelly

United States District Court, W.D. Arkansas, Hot Springs Division

February 2, 2017

VINCENT COOPER PETITIONER
v.
WENDY KELLY, Director, Arkansas Department of Correction RESPONDENT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Petitioner, VINCENT COOPER (“Cooper”), an inmate confined in the Arkansas Department of Correction (ADC), Ouachita River Unit, Malvern, Arkansas, filed a “Petition for Writ of Habeas Corpus” pursuant to 28 U.S.C. § 2241 on August 27, 2015. ECF No. 1. The Petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case. The Respondent, Director, filed her Response on September 30, 2015. ECF No. 8. For the reasons set forth below the Petition should be DENIED.

         A. Procedural Background [1]:

         Cooper brings this action challenging his sentence from the Circuit Court of Miller County, Arkansas. ECF No. 1. According to Petitioner, he was sentenced to 48 months in the ADC on January 19, 1999, in Miller County following a conviction for hot checks and theft. ECF No. 1, pp 3-4. He was later sentenced on April 6, 2005, to a term of 360 months in the ADC for attempted robbery and aggravated robbery. ECF No. 1, p. 4. He claims he filed one prior state court habeas corpus petition challenging these sentences but the state court has not ruled. He states he is not challenging the convictions or sentences rather he is challenging Respondent and the ADC's failure to give him some 472 days of “jail time credit” toward his eligibility for early release or parole. He claims in his Reply to the Response that his current petition challenges the convictions from 1999 and not the 2005 conviction. ECF No. 9, p. 1. He also states his sentences on the two 1999 convictions have “long been completed and the petitioner discharged.” ECF No. 9, p. 2. It is apparent he is currently in the custody of the Respondent pursuant to the 360 month sentence imposed in 2005. ECF No. 8, pgs. 2-3.

         The Respondent, through her response and attached exhibits, shows Cooper was convicted in Miller County in 2005 and sentenced to a term of imprisonment of 360 months for aggravated robbery and attempted robbery. ECF No. 8-3, p. 2. This conviction and sentence was affirmed on appeal by the Arkansas Court of Appeals. See Cooper v. State, 2006 WL 477634 (Ark. App. March 1, 2006) (unpublished). Following his direct appeal, Cooper filed several proceedings in state court including petitions for Relief pursuant to Ark. R. Crim. P. 37, for scientific testing, for writ of error coram nobis, for writ of certiorari, and for a writ of habeas corpus. All were unsuccessful.

         Cooper filed a petition pursuant to 28 U.S.C. § 2254 in the Eastern District of Arkansas in 2007. See Cooper v. Norris, No. 5:07-cv-00046, 2008 W.L. 2115218 (E.D. Ark. 2008). In this proceeding he raised several instances of ineffective assistance of counsel and several errors made by the trial court regarding his conviction and sentence in the Miller County Circuit Court in 2005.

         B. Instant Petition:

         Cooper filed the instant Petition, pursuant to § 2241, on August 27, 2015. ECF No. 1. In this Petition he claims the state trial court failed to award him 472 jail time credit for the period from February 17, 2002 to April 14, 2003. The Respondent asserts the instant Petition should be dismissed as a successive petition, filed without permission of the Court of Appeals pursuant to 28 U.S.C. 2244(b)(3). ECF No. 8. In his Reply Cooper says he is not challenging the 2005 conviction. Instead he claims he is challenging the 1999 sentence and the way it was imposed. ECF No. 9.

         Regarding the 1999 convictions, Cooper was sentenced to a term of 120 months with 84 months suspended for each. On January 23, 2003, the suspended sentences were revoked and Cooper was sentenced to a period of 48 months imprisonment. According to the ADC information provided by the Respondent, these 48 month sentences have expired. Had Petitioner served the entire 48 months these terms would have expired on January 22, 2007. It is clear he is no longer in custody pursuant to the 1999 convictions.

         C. Discussion:

         As a preliminary matter, I note Cooper has presented the instant Petition as one seeking relief pursuant to § 2241. The rules restricting relief pursuant to § 2254 are applicable here. Section 2254 refers “to applications by ‘person[s] in custody pursuant to the judgment of a State court ... on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.' . . . [T]he focus is on the fact of custody, not necessarily on flaws in the underlying judgment or sentence that brought the person there.” Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (citations omitted). Not only is §2254 the appropriate vehicle for Cooper's claims here, “it is, as a practical matter, the only vehicle. This is because [Cooper] is a ‘person in custody pursuant to the judgment of a state court' and can only obtain habeas corpus relief through § 2254, no matter how his pleadings are styled.” Id. Accordingly, §2254 and its associated statutory requirements apply to the Petition in this case.

         Further, Cooper clearly filed an earlier petition seeking habeas corpus relief. He claims his current petition raises issues about a conviction (1999) not challenged in the prior suit seeking habeas corpus relief. However, he is no longer in custody pursuant to the 1999 convictions. I find his current Petition can only be construed as attacking his current custody from the 2005 conviction.

         1. Successive Petition: Cooper challenged the 2005 conviction in a prior federal habeas corpus proceeding. Further, it is not disputed that he failed to request and receive permission from the United States Court of Appeals for the Eighth Circuit to file the instant second petition as required by § 2244 (b)(3). Title 28 United States Code Section 2244 states in pertinent part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior ...

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