1

 UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

AGGREY COOPER,

Defendant.

Case No. 08-20464

Honorable Julian Abele Cook, Jr.

ORDER

The Defendant, Aggrey Cooper, has filed a motion to vacate his criminal sentence pursuant

to 28 U.S.C. § 2255. The Government opposes his request for relief. For the reasons that have been

set forth below, the Court denies his motion.

I.

On April 8, 2008, officers from the Detroit Police Department executed a search warrant

at Cooper’s residence. During the search, the police officers recovered, among other things, powder

cocaine, crack cocaine, marijuana, eight firearms, a digital scale, and $1,115 in cash. Cooper’s wife,

who was present at the time of the search, waived her Miranda rights and told police officers that

(1) her husband had been selling cocaine from their home for three years and (2) he was the owner

of the seized weapons. When Cooper subsequently arrived at the home, he (1) waived his Miranda

rights, (2) acknowledged that he had been selling cocaine from the home for two years, and (3)

admitted his ownership of the firearms that were discovered by the officers.

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Franks v. Delaware, 438 U.S. 154 (1978).

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On September 4, 2008, a federal grand jury returned an indictment which charged Cooper

with (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), (2)

possessing with an intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (3) possessing

with an intent to distribute a cocaine base, in violation of 21 U.S.C. § 841(a)(1), and (4) possessing

a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). 

Thereafter, Cooper, through his court-appointed attorney, Nancy McGunn, filed a series of

pretrial motions between December 2008 and April 2009, which included his formal requests (1)

for the Government to produce its confidential informant; (2) for discovery; (3) to obtain a Rule

17(c) subpoena; (4) to suppress the evidence that had been obtained by the officers during their

search of his home on April 8, 2008; and (5) for a Franks hearing.1

 All of Cooper’s motions were

ultimately denied by the Court. 

On August 18, 2009, the Court conducted a hearing to determine the merit, if any, of the

request by Cooper’s counsel who, citing to irreconcilable differences in the existing attorney-client

relationship, sought authority to be relieved of her legal and ethical obligations to her client. On

August 27th, the Court granted McGunn’s motion to withdraw as Cooper’s legal representative.

Thereafter, he retained the legal services of Robert Slameka, who filed his appearance as the

defense counsel in this case on September 22nd. Approximately two months later (November 24th),

Cooper, after reaching an agreement with the Government pursuant to Rule 11(c)(1)(C) of the

Federal Rules of Criminal Procedure (“Rule 11 Agreement”), pled guilty to all four counts of the

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This Rule 11 Agreement contemplated a sentencing guideline range of 70 to 87 months

plus a consecutive 60-month mandatory sentence for Count IV, for a total range of 130 to 147

months. The Government submitted a sentencing memorandum in which it recommended a

sentence of 138 months. 

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indictment.2

On February 22, 2010, without the knowledge or assistance of his retained counsel, Cooper

filed a pro se motion to withdraw his guilty plea. At a hearing that had been convened to resolve

this motion, the Court denied Cooper’s request. Moreover, because of the harsh exchange of words

that took place between Cooper and his retained counsel, the Court granted Slameka’s oral motion

for authority to immediately withdraw from the case. The Court, after having heard statements from

Cooper that he was gainfully employed as a bus driver, denied his request for the appointment of

a substitute counsel. Cooper was encouraged to seek the services of another attorney who would

be willing to represent his interests in connection with his pending sentencing. 

However, on March 23rd, the Court conducted a hearing in an effort to (1) ascertain

Cooper’s financial ability to retain substitute counsel and (2) determine his desire for the

appointment of an attorney by the Court. Cooper, upon an inquiry from the Court, strongly

expressed his desire to forego the appointment of a lawyer and to represent himself in this criminal

matter. For the reasons that were set forth on the record during the hearing, the Court (1) accepted

Cooper’s waiver of an appointed counsel and (2) authorized him to represent himself in this case.

Notwithstanding his unequivocal desire to serve as his own counsel, the Court - acting in

response to the vagaries that were readily apparent in Cooper’s responses to a series of questions

posed to him during the March 23rd hearing - concluded that (1) he lacked formal legal training and

the requisite legal acumen with which to evaluate potential constitutional issues in the criminal

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The Rule 11 Agreement specified that, “[i]f the Court finds: a) that defendant’s criminal

history category is higher than reflected on the attached worksheets, or b) that the offense level

should be higher because, after pleading guilty, defendant . . . demonstrated a lack of acceptance

of responsibility for his offenses . . . and if any such finding results in a guideline range higher

than 130 to 147 months, the higher guideline range becomes the agreed range.” (Plea Agreement

§ 2.B (emphasis omitted)).

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proceeding, and (2) was in need of a lawyer to represent his interests prior to, and during, the

imposition of a sentence in this matter. At the same time, the Court also determined that Cooper

did not have the requisite funds with which to retain an attorney on his own. Thus, the Court

appointed a representative from the Federal Defender’s Office in Detroit, Michigan to serve as the

stand-by counsel for Cooper in this criminal case.

A sentencing hearing was convened on April 8, 2010. The Court calculated a higher

guideline range than had been originally contemplated by the parties in their Rule 11 Agreement

because it (1) agreed, after reviewing the proposed Presentence Investigation Report, with the

Probation Department’s inclusion of criminal history that had not been included in the parties’

calculation, and (2) found that Cooper, subsequent to the execution of the Rule 11 Agreement, had

demonstrated conduct which was inconsistent with a finding that he had accepted responsibility for

his crime.3

 Under this modified calculation, the sentencing range became 97 to 121 months plus the

mandatory 60-month consecutive sentence, for a total of 157 to 181 months. Thereafter, the Court

sentenced Cooper to a period of incarceration of 157 months. 

 II.

A federal prisoner who challenges his sentence under 28 U.S.C. § 2255 must establish “that

the sentence was imposed in violation of the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence, or that the sentence was in excess of the

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maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). If

such a violation is found to exist, a petitioner may ask the court to vacate, set aside, or correct the

sentence. Id. A petitioner’s burden in seeking such relief depends upon the type of error alleged.

If he claims a harm due to a constitutional error, the aggrieved party must “establish an error of

constitutional magnitude which had a substantial and injurious effect or influence on the

proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993)). On the other hand, if the alleged error is nonconstitutional, he must demonstrate “a fundamental defect which inherently results in a complete

miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Id.

(citation and internal quotation marks omitted).

A claim that was not raised at trial or on direct appeal is procedurally defaulted unless the

petitioner shows (1) cause which excuses his failure to raise the issues and actual prejudice, or (2)

actual innocence. United States v. Frady, 456 U.S. 152, 167 (1982). This rule, however, does not

apply to claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504

(2003).

The Sixth Amendment to the United States Constitution guarantees a defendant in a

criminal action the right to counsel. U.S. Const. Am. VI (“In all criminal prosecutions, the accused

shall enjoy the right to . . . have the Assistance of Counsel for his defense.”). In Strickland v.

Washington, 466 U.S. 668 (1984), the Supreme Court held that a defendant is denied the effective

assistance of counsel when his attorney’s representation falls below an objective standard of

reasonableness. The test for determining ineffective assistance is twofold; namely, whether the

“counsel’s performance was deficient,” and if so, whether the “deficient performance prejudiced

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Cooper, while proceeding pro se, filed several documents in February and March of

2011, including (1) a motion to amend, correct, or vacate the sentence in which he asserted six

grounds for relief; (2) a supplement to his motion; and (3) an amended motion in which he

asserted an additional ground for relief. Subsequent to these filings, and pursuant to Cooper’s

request, the Court appointed Sanford A. Schulman to represent his legal interests. On August

4th, Schulman filed a reply brief on Cooper’s behalf. 

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the defense.” Id. at 687. An attorney’s performance is considered to be deficient if it falls below

an objective standard of reasonableness under prevailing professional norms. Id. at 688. A

defendant is deemed to have been prejudiced if “there is a reasonable probability that, but for

counsel’s error, the result of the proceeding would have been different.” Id. at 694. In the context

of a guilty plea, to demonstrate prejudice, the defendant must show that, but for counsel’s

ineffective assistance, he would not have decided to plead guilty, but instead would have insisted

on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). 

In reviewing such a claim, a court must invoke a “strong presumption” that the conduct of

the defendant’s counsel falls within the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 689. Thus, the defendant bears a heavy burden of overcoming the

presumption that the challenged conduct is the result of sound trial strategy. Id. The Strickland

analysis also extends to claims of ineffective assistance during the sentencing process.

III.

In the pro se filings that are now being considered by the Court,4

 Cooper has raised seven

issues for consideration; namely, that (1) his counsel was ineffective for not raising an Ex Post

Facto challenge to his conviction under 18 U.S.C. § 922(g); (2) he is actually innocent of

possessing a firearm in furtherance of a drug trafficking crime; (3) his counsel was ineffective for

not challenging the imposition of mandatory minimum sentences under both the firearm statute, 18

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U.S.C. § 924(c), and the drug statute, 21 U.S.C. § 841(b); (4) his counsel was ineffective for not

appealing the denial of his motion to suppress; (5) the Court should reduce his sentence pursuant

to a retroactive application of the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372

(Aug. 3, 2010) (“FSA”); (6) his Fourth Amendment rights were violated because the search warrant

was not supported by probable cause; and (7) his counsel was ineffective for not raising a violation

of the Speedy Trial Act, 18 U.S.C. § 3161(b). 

The Court will address each claim seriatim.

A.

Cooper first argues that his counsel was ineffective for failing to challenge his conviction

under 18 U.S.C. § 922(g) on the basis of the Ex Post Facto clause. See U.S. Const. Art. I, § 9, cl.

3 (“No Bill of Attainder or ex post facto law shall be passed.”). Section 922(g) provides, in relevant

part, that “[i]t shall be unlawful for any person – (1) who has been convicted in any court of, a

crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting

commerce, any firearm or ammunition . . . .” Section 921(a)(20) excludes from the category of

applicable predicate offenses “[a]ny conviction which has been expunged, or set aside or for which

a person has been pardoned or has had civil rights restored . . . , unless such pardon, expungement,

or restoration of civil rights expressly provides that the person may not ship, transport, possess, or

receive firearms.” Finally, “the law of the State of conviction, not federal law, determines the

restoration of civil rights as a rule.” Caron v. United States, 524 U.S. 308, 316 (1998). 

“The federal felon-in-possession statute involves a two-part inquiry: (1) if a convicted

felon’s civil rights have been restored under state law, he shall no longer be considered a felon for

purposes of § 922(g), except (2) if, pursuant to the ‘unless clause’ of § 921(a)(20), the felon

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remains prohibited from firearms possession.” United States v. Campbell, 256 F.3d 381, 393 (6th

Cir. 2001), abrogated on other grounds by Begay v. United States, 553 U.S. 137 (2008). The Sixth

Circuit has determined that, under Michigan law, “essentially all of a former felon’s civil rights,

including the right to vote, hold public office, and sit on a jury, are restored under Michigan law

upon the former felon’s release from custody.” Id. at 391 (citing Hampton v. United States, 191

F.3d 695, 702 (6th Cir. 1999)). However, “even after a person’s civil rights have been restored,

Michigan law restricts a convicted person’s right to possess firearms for a period of time after the

sentence imposed for a particular crime has been served.” Melton v. Hemingway, 40 F. App’x 44,

45 (6th Cir. 2002) (unpublished). Thus, if the individual’s right to possess firearms has not been

restored under Michigan law, the “unless clause” of § 921(a)(20) is implicated and the prior offense

serves as a predicate offense under § 922(g).

Cooper was convicted of a felony in 1990 and released from state custody in 1995. Due to

a parole violation, he was returned to prison and ultimately released in 1998. Under the law as it

existed at the time of Cooper’s conviction, his right to possess firearms would have been restored

eight years after the expiration of his term of incarceration - in 2006, two years prior to the events

here at issue. See Campbell, 256 F.3d at 392-93 (eight-year waiting period in former Mich. Comp.

Laws § 28.422(1) begins running when felon is released from prison). However, the Michigan

Legislature amended § 28.422 and enacted § 750.244f in 1992. Under the new statute, for all but

certain specified felonies, the waiting period is three years after the payment of all fines and the

expiration of all periods of incarceration, probation, and parole. § 750.224f(1). However, with

regard to the so-called “specified felonies,” the Michigan Legislature increased the waiting period

to five years and included a requirement that the “person’s right to possess, use, transport, sell,

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purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to [Mich. Comp.

Laws § 28.424].” § 750.224f(2). Section 28.424, in turn, describes the process whereby an

individual who had been prohibited from possessing a firearm may submit an application to the

concealed weapons licensing board for the restoration of this right. 

Cooper’s prior felony conviction includes at least one count (namely, the possession of

cocaine with the intent to deliver) which is a “specified felony” within the meaning of § 750.224f.

See Mich. Comp. Laws § 750.224f(6)(ii) (specified felonies include those for which an “element

of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or

dispensing of a controlled substance”). Cooper does not contend that he ever applied to, or was

approved by, the concealed weapons licensing board after his release from prison. Therefore, if §

750.224f(2) applies to him, the restoration of his civil rights upon release from prison expressly

excludes the right to possess firearms pursuant to the “unless clause” of 18 U.S.C. § 920(a)(2), and

his prior offense constitutes an applicable predicate offense under 18 U.S.C. § 922(g).

However, Cooper contends that the application of § 750.224f to his prior offense is an ex

post facto violation because this statute was not enacted until after the underlying conviction had

occurred. However, the Sixth Circuit, in two unpublished opinions, has rejected precisely this

claim. See United States v. Haire, 89 F. App’x 551 (6th Cir. 2004) (unpublished) (conviction under

§ 922(g) did not violate ex post facto clause when change in state law, which occurred subsequent

to defendant’s prior conviction and release from prison, permanently prohibited him from

possessing firearms because state statute and § 922(g) were enacted prior to relevant offense

conduct; namely, possessing a firearm); Melton, 40 F. App’x at 45 (“Contrary to [defendant’s]

contention, the provisions of § 750.224f apply to him because that statute became effective prior

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to the date on which he completed his sentence for felonious assault. Furthermore, subjecting [him]

to the provisions of § 750.224f does not offend the Ex Post Facto Clause.”). 

Here, as in Haire, Cooper’s offense conduct in 2008 occurred well after the enactment of

§ 922(g) and § 750.224f. Furthermore, as in Melton, § 750.22f was enacted before Cooper had

completed his term of incarceration. Therefore, the application of these two statutes to his 2008

conduct does not present any ex post facto issues. See United States v. Ballard, No. 09-35-KSF,

2009 WL 12981020 (E.D. Ky. May 7, 2009) (no ex post facto violation where defendant was

convicted in 1976, paroled in 1980, and discharged from parole in 1997, and relevant state law

prohibiting his possession of firearms was enacted in 1994, because the offense conduct -

possession of the firearm - occurred well after the law was enacted); United States v. Clark, No.

05-80810, 2006 WL 2033981, at *3 (E.D. Mich. July 18, 2006) (“[T]he 1992 modifications of the

Michigan law on felon in possession of a firearm do not create an Ex Post Facto violation as to [the

defendant] because the state’s predominant interest in [Mich. Comp. Laws] § 750.224f was not to

punish but to protect the public.” (citing Campbell, 256 F.3d at 393-94; People v. Tice, 558 N.W.2d

245, 246-47 (Mich. Ct. App. 1997)); United States v. Jones, No. 1:05-CR-132, 2006 WL 399234,

at *4 (E.D. Tenn. Feb. 16, 2006) (“The passage of Tenn. Code Ann. § 39-17-1351(j)(3) does not

violate the Ex Post Facto clause as to Defendant. The conduct being punished is that of the recent

act of possessing a firearm. No right was taken from Defendant by the passage of the concealed

carry permit law in Tennessee and Defendant is not being punished for anything he did before

February 2004, when the Government alleges Defendant violated federal § 922(g)(1).” (citation

omitted)). Counsel was not ineffective for failing to raise this meritless claim.

B.

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Cooper next argues that his conviction for possessing a firearm in furtherance of a drug

trafficking crime should be vacated by the Court because he is actually innocent of the charge.

Cooper maintains that there was no evidence that (1) he possessed the identified firearms or (2) any

possession of these firearms by him was in furtherance of the suspected drug activity. To establish

actual innocence, Cooper must establish that, “in light of all the evidence, it is more likely than not

that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623

(1998) (citation and internal quotation marks omitted). In responding to Cooper’s claim, the

Government “is not limited to the existing record . . . [but may] present any admissible evidence

of [his] guilt even if that evidence was not presented during [his] plea colloquy . . . .” Id. at 624.

Thus, the Court may look “not just at the facts to which [Cooper] admitted when he pled guilty, but

also at any other evidence of his guilt that the Government has marshaled.” Waucaush v. United

States, 380 F.3d 251, 255 (6th Cir. 2004). This scope of evidence includes “the undisputed

circumstances described in the presentence report.” Vanwinkle v. United States, 645 F.3d 365, 370

(6th Cir. 2011) (citing Luster v. United States, 168 F.3d 913, 915 (6th Cir. 1999)).

Cooper’s possession argument appears to be based upon the incorrect assumption that actual

possession is required. He submits that, since he was not at the residence when the search

uncovered the guns, these weapons could not have been in his possession. However, the possession

element can be satisfied by showing that Cooper either actively or constructively possessed the

seized items. E.g., United States v. Leary, 422 F. App’x 502, 509 (6th Cir. 2011). In order to

establish the latter, the “[G]overnment must simply prove, using either direct or circumstantial

evidence, that the defendant had the ability to exercise knowing dominion and control over the

items in question.” Id. (citation and internal quotation marks omitted). “Dominion and control over

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the premises where the item is found is acceptable, but where evidence of a defendant’s mere

presence near the guns is presented, there must also be some other incriminating evidence, coupled

with presence, . . . [that] serve[s] to tip the scale in favor of sufficiency.” Id. (citations and internal

quotation marks omitted).

Here, Cooper plainly had “dominion and control” over his residence - the premises where

the guns were found. Moreover, he expressly and repeatedly admitted that the guns were owned

by him and did not belong to anyone else who lived in the home. During the plea hearing, the

Government stated that it could prove this charge by showing at trial that, on April 8, 2008, Cooper

“possessed the . . . eight firearms at his residence . . . to protect himself, the narcotics, and the

narcotics proceeds from his various drug transactions.” (Plea Hr’g Tr. 15:22-16:3). When asked if

he disagreed with this statement, Cooper stated, “No, she [making reference to the Assistant United

States Attorney] said it right.” (Id. 16:10-13). When asked if he “accept[ed] her statements as being

correct,” Cooper answered in the affirmative. (Id. 16:14-16). Cooper expressly stated several times

during his plea colloquy that he (1) had the firearms at his house, (2) was responsible for the guns

being there, and (3) he knew it was illegal for him to possess these items. (Id. 16:24-25, 18:23-25,

19:10-20:1, 21:11-14, 24:2-6, 25:6-8, 25:21-26:19, 28:8-11). Similarly, the Rule 11 Plea Agreement

- which bears Cooper’s signature - states that he “knowingly possessed several firearms . . . at [his]

residence on April 8, 2008, namely the eight firearms identified in Counts One and Four of the

indictment.” (Plea Agreement § C). The Guilty Plea Questionnaire, which also bears Cooper’s

signature, states, “I, as a previously convicted felon, possessed cocaine [and more than 5 grams]

of crack cocaine with the intent to distribute same [and] possessed a gun to further said

distribution.” (Guilty Plea Questionnaire ¶ 36). Both Cooper and his wife, after having waived their

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Miranda rights, gave statements to the police that the guns belonged to him. (Gov’t’s Resp. to

Def.’s Mot. to Withdraw Guilty Plea, Exs. A, B). The Court also notes that Cooper has challenged

the felon in possession of a firearm charge on the basis of the ex post facto clause - and not because

he did not actually possess the seized weapons - which further supports the conclusion by the Court

that the possession prong of this charge has been indisputably satisfied.

Cooper is correct that “possession in furtherance” requires something more than mere

possession standing alone. This “something more” aspect of the charge has been described as “a

specific nexus between the gun and the crime charged,” United States v. Mackey, 265 F.3d 457, 462

(6th Cir. 2001), and “requires the [G]overnment to prove a defendant used the firearm with greater

participation in the commission of the crime or that the firearm’s presence in the vicinity of the

crime was something more than mere chance or coincidence,” United States v. Combs, 369 F.3d

925, 933 (6th Cir. 2004). The Sixth Circuit has stated that possession of a firearm will be deemed

to be in furtherance of a drug crime when the weapon is “strategically located so that it is quickly

and easily available for use.” Mackey, 265 F.3d at 462 (citation omitted). The requisite “specific

nexus” can also be shown if “there is a large amount of drugs or money present, such that the very

existence ofthese items on the premises may be seen to warrant a gun for protection.” United States

v. Leary, 422 F. App’x 502, 512 (6th Cir. 2011). “Other factors that may be relevant to a

determination of whether the weapon was possessed in furtherance of the crime include whether

the gun was loaded, the type of weapon, the legality of its possession, the type of drug activity

conducted, and the time and circumstances under which the firearm was found.” Mackey, 265 F.3d

at 462. The Sixth Circuit has explained that this “list of factors is not exclusive, but it helps to

distinguish possession in furtherance of a crime from innocent possession of a wall-mounted

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Even if Cooper’s argument that the weapons and drugs were not found in the same room

were supported by the evidence, it - standing alone - would not preclude a finding that the

weapons were held in furtherance of the drug crime. See United States v. Swafford, 385 F.3d

1026, 1029 (6th Cir. 2004).

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antique or an unloaded hunting rifle locked in a cupboard.” Id.

The evidence in the record clearly demonstrates that Cooper possessed these firearms in

furtherance of a drug crime. As noted above, he affirmed the correctness of the Government’s

statement that it could prove at trial that, on April 8, 2008, Cooper “possessed the . . . eight firearms

at his residence . . . to protect himself, the narcotics, and the narcotics proceeds from his various

drug transactions.” (Plea Hr’g Tr. 15:22-16:3). Moreover, the Plea Agreement states that Cooper

“knowingly possessed several firearms in furtherance of his drug trafficking at [his] residence on

April 8, 2008, namely the eight firearms specified in Counts One and Four of the indictment. These

firearms were accessible to [him] at his residence . . . to protect himself, the narcotics, and the

narcotics proceeds.” (Plea Agreement § C). Likewise, Cooper affirmed in the Guilty Plea

Questionnaire that he possessed the weapons to further the drug distribution. (Guilty Plea

Questionnaire ¶ 36). 

Finally, the Presentence Investigation Report - the accuracy of which Cooper did not

challenge (Sentencing Hr’g Tr. 30:1-8, Mar. 8, 2010) - states that (1) eight firearms; (2) plastic bags

containing 114.41 grams of marijuana, 63.29 grams of cocaine, and 37.33 grams of crack cocaine;

(3) a digital scale; and (4) $1,115 in United States currency were all found in the same upstairs

bedroom of Cooper’s residence. (Presentence Investigation Report ¶ 9). This alone would be

sufficient to establish the “specific nexus” as stated in Leary. See 422 F. App’x at 512.5

 Moreover,

the factors outlined in Mackey also support the determination by the Court that Cooper possessed

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the weapons “in furtherance” of the drug crime. See 265 F.3d at 462. First, his possession of the

weapons was illegal. Not only was it was illegal for Cooper to possess any firearms under 18

U.S.C. § 922(g) and Mich. Comp. Laws § 750.224f, but it also appears that, based upon his

admission that he bought the weapons on the streets of Detroit (Gov’t’s Resp. to Def.’s Mot. to

Withdraw Guilty Plea, Ex. B), that the weapons were purchased illegally. Second, despite Cooper’s

claim to the contrary, the evidence suggests that at least one of the weapons was loaded. (Gov’t’s

Resp. to Def.’s Mot. to Vacate Sentence Ex. 1). Third, the number and types of weapons (total of

eight, consisting of two pistols, three rifles, and three shotguns) and their location (in the same

room as the drugs, scale, and money) clearly suggest that they had been possessed for the purpose

of protecting Cooper, the drugs, and money derived therefrom. 

Taken together, this evidence clearly distinguishes Cooper’s possession of these weapons

“from innocent possession of a wall-mounted antique or an unloaded hunting rifle locked in a

cupboard,” Mackey, 265 F.3d at 462, and amply supports his conviction of possession of a firearm

in furtherance of a drug crime. Because Cooper has failed to show, “in light of all the evidence,

[that] it is more likely than not that no reasonable juror would have convicted him,” Bousley, 523

U.S. at 623 (citation and internal quotation marks omitted), the Court rejects Cooper’s claim of

actual innocence to this charge.

In his reply brief, Cooper raises a different claim regarding this charge. Specifically, Cooper

argues that the Government has failed to establish that he “used” or “carried” the firearms during

or in relation to the drug trafficking crime, as those terms have been interpreted by the Supreme

Court and the Sixth Circuit. See Bailey v. United States, 516 U.S. 137 (1995); United States v.

Riascos-Suarez, 73 F.3d 616, 623 (6th Cir. 1996); United States v. Moore, 76 F.3d 111 (6th Cir.

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Section 924(c) was amended specifically in response to the interpretation of this statute

by the Supreme Court in Bailey. See, e.g., United States v. Combs, 369 F.3d 925, 931-32 (6th

Cir. 2004).

16

1996). However, these cases predate the amendment of § 924(c) in 1998, which added “possession

of a firearm in furtherance of such a crime” as a distinct offense.6 See United States v. Combs, 369

F.3d 925 (6th Cir. 2004). It was this distinct offense - and not using or carrying a firearm during

or in relation to the crime - with which Cooper was charged and to which he ultimately pled guilty.

Therefore, this prong of Cooper’s argument is without merit.

C.

Cooper next submits that his counsel was ineffective when he did not challenge the

imposition of mandatory minimum sentences under both the firearm statute, 18 U.S.C. § 924(c),

and the drug statute, 21 U.S.C. § 841(b). The firearm statute provides, in relevant part, as follows:

Except to the extent that a greater minimum sentence is otherwise provided by this

subsection or by any other provision of law, any person who, during and in relation

to any crime of violence or drug trafficking crime (including a crime of violence or

drug trafficking crime that provides for an enhanced punishment if committed by

the use of a deadly or dangerous weapon or device) for which the person may be

prosecuted in a court of the United States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years . . . .

18 U.S.C. 924(c)(1)(A). In United States v. Almany, 598 F.3d 238, 242 (6th Cir. 2010) (citing

United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), the Sixth Circuit adopted the reasoning of

the Second Circuit, and held that the “except clause” of this statute “plainly forbade the imposition

of the mandatory minimum contained in the firearm statute in conjunction with another greater

mandatory minimum sentence.”

Assuming, arguendo, that Cooper can raise an ineffective assistance of counsel claim

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The Court notes that Almany had not been vacated when Cooper was sentenced.

17

relating to the sentencing proceedings - during which he was exercising his right to proceed as a

pro se litigant, notwithstanding the repeated suggestion by the Court that he accept the appointment

of counsel - this argument fails for two independently sufficient reasons. First, Almany was

promptly abrogated by the holding of the Supreme Court in Abbott v. United States, 131 S. Ct. 19,

23 (2010), which held that “a defendant is subject to a mandatory, consecutive sentence for a §

924(c) conviction, and is not spared from [it] by virtue of receiving a higher mandatory minimum

on a different count of conviction.” Rather, the “except clause” of § 924(c) “refers only to other

provisions imposing longer mandatory sentences for the conduct § 924(c) proscribes.” United

States v. Ham, 628 F.3d 801, 812 (6th Cir. 2011) (citation and internal quotation marks omitted);

see also United States v. Thomas, No. 09-3827, 2011 WL 6183514 (6th Cir. Dec. 13, 2011) (“The

law is now clear that 18 U.S.C. § 924(c) mandates a consecutive five-year minimum sentence

regardless of whether the defendant is subject to a greater mandatory minimum sentence for the

underlying drug-trafficking offence.”). Thus, this Section only prevents the imposition of multiple

consecutive minimum sentences where both or all of the sentences are based upon the possession

of a firearm in connection with a predicate crime. There is no such bar when the other mandatory

minimum derives from an unrelated crime. United States v. Adkins, 429 F. App’x 471 (6th Cir.

2011).

Second, even if Almany had been controlling,7

 it would not have helped Cooper because he

was not subject to a “greater” mandatory minimum sentence for the drug charge. Count 3

(possession with intent to distribute more than five grams of crack cocaine) carries a mandatory

minimum sentence of five years, which is not “greater” than the five-year minimum found in the

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Moreover, his ninety-seven month sentence for Counts 1-3 - and, as it turns out, his

Guideline range would have been the same (offense level 28 and criminal history III) for Count 3

alone as it was for the grouped Counts 1-3 - was based upon the Guidelines and exceeded the

sixty-month mandatory minimum for Count 3. Thus, arguably, Cooper was not subjected to two

consecutive mandatory minimum sentences at all. Almany recognized this distinction when it

distinguished two prior Sixth Circuit cases, United States v. Baldwin, 41 F. App’x 713 (6th Cir.

2002) and United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001), on the basis that the

defendants were not subject to two mandatory minimum sentences when they were sentenced to

Guidelines-based sentences plus consecutive five-year sentences under § 924(c). Noting that “a

guidelines sentence is obviously not the same as a mandatory minimum sentence,” the court

stated that, in those circumstances, “neither of the defendants were subject to two mandatory

minimum sentences.” Almany, 598 F.3d at 241. However, unlike § 921(a), the statutes for which

the Guidelines-based sentences were imposed in Baldwin and Jolivette did not contain any

mandatory minimum provision. In light of the other bases for this ruling, the Court need not

resolve whether a court would violate Almany’s command by sentencing a defendant to a

Guidelines-based sentence for a non-§ 924(c) offense that is higher than the mandatory minimum

for that offense followed by a consecutive § 924(c) sentence.

18

firearms statute.8

 Thus, even if this Court adopted Almany’s reading of § 924(c), the “except clause”

would not have been implicated here.

For these reasons, the failure of Cooper’s attorney to raise this argument does not support

an ineffective assistance of counsel claim. 

D.

The Court will consider both of Cooper’s Fourth Amendment-based claims together. He

argues that (1) his counsel was ineffective for not appealing the denial of his motion to suppress

and (2) his Fourth Amendment rights were violated because the search warrant was not supported

by probable cause. 

Because Cooper did not raise the latter claim on direct appeal, he has procedurally defaulted

it. Moreover, he has neither shown good cause nor demonstrated any meaningful prejudice that will

justify his default. Although Cooper contends that good cause was shown because he was

prohibited from pursuing an appeal under the “waiver of appeal” provisions within his Plea

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The Court also notes that this Fourth Amendment claim may not be cognizable on

collateral review in any case. In Stone v. Powell, 428 U.S. 465 , 494 (1976), the Supreme Court

held that Fourth Amendment claims were not cognizable in § 2254 actions where the defendant

had a full and fair opportunity to litigate the issue in the state court. Subsequently, in United

States v. Johnson, 457 U.S. 537, 563 (1982), the Court appeared to suggest that this rule also

applies in § 2255 actions challenging a federal conviction. E.g., Boone v. United States, 100 F.3d

956 (6th Cir. 1996) (unpublished table decision) (citing Stone for the proposition that

defendant’s Fourth Amendment claim was not cognizable in a § 2255 action); United States v.

Chapman, No. No. 06-CV-11127, 2006 WL 2160967, at *1 (E.D. Mich. July 31, 2006) (same);

see also, e.g., Hunt v. United States, No. No. 2:09-cv-419, 2010 WL 3703205, at *5 (S.D. Ohio

Sept. 17, 2010) (same, and citing cases from other circuits). Here, Cooper had a full and fair

opportunity to litigate his Fourth Amendment claim - and, in fact, this claim was fully litigated.

His counsel filed motions to suppress the evidence and for a Franks hearing, both of which were

denied.

19

Agreement,such a clause does not constitute a legitimate basis underthe circumstances ofthis case.

E.g., Bryant v. United States, No. 2:06-CV-210, 2007 WL 4376099, at *5 (E.D. Tenn. Dec. 13,

2007) (waiver of right to appeal does not constitute just cause excusing default nor could such

waiver be attributed to counsel - ineffective or otherwise - where it was defendant, not counsel, who

personally waived that right in writing and during statements made in plea colloquy); Owens v.

United States, No. 4:06-cv-123, 2007 WL 1041121, at *6 (W.D. Mich. Apr. 4, 2007) (“[W]here a

criminal defendant’s failure to appeal is based upon his knowing and voluntary abandonment of

the right to appeal, he cannot possibly show cause.”). Because this claim has been defaulted, and

cause has not been shown, Cooper is precluded from raising it in this § 2255 motion.9

Cooper fares no better in the alternative formulation of his Fourth Amendment argument -

to wit, that his counsel was ineffective for failing to appeal the denial of his suppression motion

and/or advise him of his right to appeal that denial. In his reply brief, he suggests that counsel was

ineffective for failing to advise him to reserve the right to appeal by entering into a conditional

guilty plea specifically reserving that right. See Fed. R. Crim. P. 11(a)(2) (“With the consent of the

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court and the [G]overnment, a defendant may enter a conditional plea of guilty or nolo contendere,

reserving in writing the right to have an appellate court review an adverse determination of a

specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.”).

The Government contends - and Cooper does not dispute - that it could have filed a

Previous Conviction Information pursuant to 21 U.S.C. § 851, which would have subjected him to

defend against a ten-year mandatory minimum for the crack offense under § 841 as opposed to the

five-year minimum that was contemplated by the Guilty Plea Agreement. The Government

correctly argues that Cooper’s counsel was not unreasonable for counseling his client to enter a

guilty plea - thereby waiving his right to appeal the denial of the suppression motion - rather than

to risk going to trial and facing a mandatory minimum of fifteen years (ten years for the crack

offense and five years for the weapons offense under § 924(c)). See Strickland, 466 U.S. at 689

(defendant must overcome strong presumption that counsel’s conduct was outside the wide range

of reasonable professional assistance and was not the result of sound strategy). This conclusion is

bolstered by the fact that - for the reasons that were outlined in (1) the magistrate judge’s

recommendation that the Court deny the first suppression motion; (2) the adoption of this

recommendation by the Court over Cooper’s objections; (3) the denial of Cooper’s subsequent

motion to suppress the evidence; and (4) the rejection of Cooper’s application for a Franks hearing

- the underlying claim was a weak one. Thus, Cooper has failed to successfully advance either

prong of Strickland. See, e.g., Worthington v. United States, 726 F.3d 1089, 1093-94 (Contie, J.,

concurring) (where suppression motion would likely fail, “counsel may not be criticized for having

accurately assessed his client’s chances of successfully challenging the warrant”). 

With respect to Cooper’s claim that his counsel was ineffective when he failed to negotiate

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the entry of a conditional guilty plea, it suffices to note that such a plea requires the consent of the

Court and the Government. Fed. R. Crim. P. 11(a)(2); Simmons v. United States, No. 01-80527,

2010 WL 4973730, at *2 (E.D. Mich. Dec. 1, 2010). Cooper has neither alleged nor shown that

such consent would have been granted. See Stamper v. United States, Nos. 1:05-cv-317, 1:03-cr-86,

2008 WL 2811902, at *10 (E.D. Tenn. July 18, 2008) (rejecting identical claim where there was

no allegation or evidence that the Government offered or would have assented to conditional plea).

Furthermore, Cooper does not allege that he would have rejected an unconditional plea if he had

known of the possibility of entering a conditional plea, as required to show prejudice under

Strickland, 466 U.S. 668, and Hill, 474 U.S. at 58-59. Finally, as noted above, Cooper has not

demonstrated - and cannot demonstrate - that he would have been likely to prevail on the Fourth

Amendment claim on appeal. For all of these reasons, Cooper’s fourth and sixth claims must be

rejected.

E.

Cooper next argues that the Court should reduce his sentence pursuant to a retroactive

application of the Fair Sentencing Act of 2010 (“FSA”), Pub. L. 111-220, 124 Stat. 2372 (Aug. 3,

2010). The FSA, in relevant part, amended the sentencing provision that is applicable to the

criminal offense to which Cooper pled guilty (namely, 21 U.S.C. § 841(b)(1)(B)(iii)) by increasing

from 5 grams to 28 grams the amount of crack cocaine that is necessary to trigger a five-year

mandatory minimum sentence of incarceration. 

To the extent that Cooper seeks relief from the mandatory minimum sentence imposed

under the pre-FSA law, this argument fails for several reasons. First, because Cooper was held

accountable for possessing 37 grams of crack cocaine, he would be subject to the five-year

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minimum sentence under either the pre- FSA or the post-FSA provisions. Second, the Sixth Circuit

has held that the provisions of the FSA are not retroactive with respect to those defendants, like

Cooper, who were sentenced prior to its enactment. United States v. Carradine, 621 F.3d 575 (6th

Cir. 2010). Third, his sentence for this count - based on the Guidelines - was well above the

mandatory minimum sentence. Thus, even if the new mandatory minimum trigger had been applied

in this case, it would have had no effect on his sentence. The Court notes that Cooper may be

eligible for a sentencing reduction under Amendments 748 and 750 to the United States Sentencing

Guidelines. Amendment 748 - which was enacted in response to the directive in the FSA that the

Sentencing Commission promulgate emergency amendments to bring the Guidelines into

conformity with the statute, FSA § 8(2) - was a temporary, emergency amendment that included

a downward adjustment in the base offense levels for possession of crack cocaine. Amendment 748

was re-promulgated as permanent in April 2011. Amendment 750, which became effective on

November 1, 2011, gave Amendment 748 full retroactive effect. The Court, with recognition that

Cooper has filed a separate motion which seeks a sentence reduction pursuant to 18 U.S.C. § 3582

based upon these Guideline changes, will resolve the issues raised therein in a separate order.

In his reply brief, Cooper seeks to be resentenced under Amendment 706 to the United

States Sentencing Guidelines, which reduced the base offense level applicable to most crack

cocaine sentences by two levels. U.S.S.G. app. C, amend. 706 (Nov. 1, 2007). However, Cooper

was sentenced after this amendment went into effect and according to the 2009 Sentencing

Guidelines. Thus, the guideline calculation that was utilized by the Court had already included this

two-level reduction. He is not entitled to any further reduction pursuant to this amendment. 

F.

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10After the police officers had executed the search warrant and Cooper returned to his

residence, he was handcuffed and read his Miranda rights. But these facts - standing alone - do

not necessarily establish that he was arrested. See, e.g., United States v. Williams, 170 F. App’x

399, 403 n.4 (6th Cir. 2006) (noting that circuit courts have “struggled to find a workable

definition of the term ‘arrest,’” but concluding that the common thread among these cases is that

“they all depend on a fact-specific analysis of the degree of force the officers used on the

occasion in question”). 

23

Finally, Cooper argues that his counsel was ineffective for failing to seek the dismissal of

the indictment for a violation of the Speedy Trial Act, 18 U.S.C. § 3161. This statute provides, in

relevant part, that “[a]ny information or indictment charging an individual with the commission of

an offense shall be filed within thirty days from the date on which such individual was arrested or

served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). Cooper contends

that, because more than thirty days elapsed between his arrest on April 8, 2008, and the filing of

the indictment on September 4, 2008, his counsel was ineffective for failing to seek dismissal on

this ground.

For the purposes of this argument, the Court assumes - without deciding - that Cooper was

arrested, as defined in the ordinary, constitutional sense of the word, on April 8th.10 However, it is

well-settled that a “defendant is not ‘arrested’ for purposes of the Speedy Trial Act until formal

federal charges are pending, that is, when a formal complaint or charge is issued.” United States

v. Salgado, 250 F.3d 438, 454 (6th Cir. 2001); see also United States v. Graef, 31 F.3d 362, 364

(6thCir. 1994) (“[C]ourts[have] unanimously . . . conclude[d]that the arrest ‘trigger’for § 3161(b)

applies only to arrests made either on a complaint or which were immediately followed by a

complaint.”); United States v. Blackmon, 874 F.3d 378 (6th Cir. 1989) (“A defendant is not

‘arrested’for purposes ofthe Speedy Trial Act until formalfederal charges are pending. An ‘arrest’

refers to the point at which a defendant is charged with the crime; therefore, a defendant is not

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‘arrested’ until a formal complaint or formal charge is issued.” (citations omitted)). 

Here, inasmuch as no complaint had been filed against Cooper, the thirty-day clock within

which to indict him never started. Graef, 31 F.3d at 364 (“[B]ecause no complaint was ever filed

against [defendant], there could be no ‘arrest’ for purposes of beginning the 30-day pre-indictment

clock.”). Therefore, Cooper’s counsel was not ineffective for failing to raise this meritless

argument.

IV.

For the reasons that have been set forth above, the Court denies Cooper’s § 2255 motion

in its entirety and without prejudice to his separately-filed § 3582 motion.

When a district judge enters a final order which is adverse to a defendant in a § 2255 action,

it must also issue or deny a certificate of appealability. See Rule 11 of the Rules Governing Section

2255 Proceedings; see also 28 U.S.C. § 2253(c)(1)(B) (prohibiting defendant from appealing final

order in § 2255 proceeding unless court issues certificate of appealability); Fed. R. App. P. 22(b)

(same). A certificate of appealability may be issued only if the defendant has “made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to satisfy this

burden, the defendant must establish “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or that the issues

presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529

U.S. 473, 484 (2000). Thus, a petitioner - such as Cooper -must demonstrate that reasonable jurists

would find the assessment of the constitutional claims by this Court to be debatable or wrong. Id.

In light of the facts of this case, especially when considered against settled and controlling

precedent of the Supreme Court and the Court of Appeals for the Sixth Circuit, reasonable jurists

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would not find the resolution of the constitutional issues that have been raised by Cooper to be

debatable or wrong. Therefore, the Court denies a certificate of appealability to Cooper.

IT IS SO ORDERED.

Date: January 4, 2012 s/Julian Abele Cook, Jr. 

JULIAN ABELE COOK, JR.

U.S. District Court Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective

email addresses or First Class U.S. mail to the non-ECF participants on January 4, 2012.

s/ Kay Doaks 

Case Manager

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