Bruce X. Cooper v. James Price, Warden

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4274
BRUCE X. COOPER
v.
JAMES PRICE, WARDEN; THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA PA; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA
Bruce A. Cooper,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 98-cv-03009
District Judge: The Honorable James McGirr Kelly
Argued: September 8, 2003
Before: BARRY, BECKER, and GREENBERG, Circuit Judges
(Opinion Filed: October 10, 2003)
Edward F. Borden, Jr., Esq. (Argued)
Earp Cohn
222 Haddon Avenue
The Rohrer Building
Westmont, NJ 08108

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Attorney for Appellant
John W. Goldsborough, Esq. (Argued)
Office of the District Attorney
1421 Arch Street
Philadelphia, PA 19102
Attorney for Appellees
OPINION
BARRY, Circuit Judge
The parties are familiar with the facts of this case. As a result, we will provide only
a brief summary of those facts at the outset and will incorporate additional facts as they are
relevant to our discussion of the issues.
The Pennsylvania Superior Court affirmed the denial of appellant Bruce Cooper’s
third PCRA petition on August 24, 1995, Commonwealth v. Cooper, 669 A.2d 408 (Pa.
Super. Ct. 1995) (table), and the Pennsylvania Supreme Court denied his petition for
allocatur on July 12, 1996. Commonwealth v. Cooper, 679 A.2d 227 (Pa. 1996) (table).
On June 11, 1998, almost two years later and eleven months after the one-year limitations
period imposed by 28 U.S.C. § 2244(d) had expired, Cooper filed his petition for a writ of
habeas corpus in the U.S. District Court for the Eastern District of Pennsylvania pursuant to
28 U.S.C. § 2254. The habeas petition raised three issues: juror misconduct, a claim that
the prosecutor withheld exculpatory evidence, and a claim of ineffective assistance of trial

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and appellate counsel. Cooper’s petition was dismissed as time-barred by virtue of the
one-year limitations period of 28 U.S.C. § 2244(d)(1).
Two arguments as to why the statute of limitations should have been equitably tolled
are before us. First, Cooper argues that equitable tolling is warranted because he did not
receive notice from the Pennsylvania Supreme Court of its denial of his petition for
allocatur. According to Cooper, he made many attempts to ascertain the status of his
appeal between 1996 and September of 1997; indeed, it appears that he wrote to and
received a response from a legal intern in the Administrative Office of Pennsylvania Courts
(“AOPC”) on February 14, 1997, erroneously indicating that his petition was still pending
but suggesting that Cooper contact the correct court office himself. He finally learned on
September 30, 1997 that the Court had denied his petition on July 12, 1996, well over a
year earlier. He did not, however, file his habeas petition until June 11, 1998, eleven
months late and over eight months after he learned that his petition for allocator had been
denied.
Second, Cooper argues that equitable tolling is warranted because “essential” legal
documents consisting of evidence concerning the ineffective assistance of his trial
counsel, Adam Renfroe, were taken from his cell on January 11, 1997. These documents
included affidavits from fellow inmates of Cooper who had been represented by Renfroe
telling of Renfroe’s drug abuse while representing them as well as newspaper articles
documenting Renfroe’s conviction for bribing a witness. Cooper states that he did “every
thing humanly possible to replace the destroyed documents,” including filing numerous

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complaints with prison officials and complaining to State Senate officials.
In reviewing the District Court’s determinations, first, that Cooper’s petition was
time-barred and, second, that the one-year period was not subject to equitable tolling, we
exercise plenary review. Johnson v. Hendricks, 314 F.3d 159, 161 (3d Cir. 2002). We will
affirm.
Parenthetically, given the fact that we have reached the equitable tolling issue, it
goes without saying that we have rejected the Commonwealth’s contention that we lack
jurisdiction over Cooper’s appeal. 28 U.S.C. § 2253(c)(2) and (3) provide, respectively,
that a certificate of appealability (“COA”) may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right” and that the COA “shall indicate
which specific issue or issues satisfy the showing required . . . .” In clarifying section
2253(c)’s requirements in cases where a habeas petition was dismissed on procedural
grounds, the Supreme Court has held that “a COA should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Contrary to the Commonwealth’s assertion, the District Court’s
November 5, 2002 Memorandum and Order accurately and sufficiently explains how
Cooper has made a substantial showing of a possible violation of a constitutional right and
why reasonable jurists could reach differing conclusions on his equitable tolling claim. We
have jurisdiction.

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Turning to the heart of this appeal, we have held that, as a general matter, equitable
tolling is proper only “when the petitioner has ‘in some extraordinary way . . . been
prevented from asserting his or her rights.’” Miller v. New Jersey State Dep’t of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quoting Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1380 (3d Cir. 1994)). Additionally, equitable relief is only
available where the petitioner can show “that he or she ‘exercised reasonable diligence in
investigating and bringing [the] claims.’ Mere excusable neglect is not sufficient.” Id.
(quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir.
1997)). “In the final analysis . . . ‘a statute of limitations should be tolled only in the rare
situation where equitable tolling is demanded by sound legal principles as well as the
interests of justice.’” Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (quoting United
States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). The burden rests on the petitioner to
prove all facts, both procedural and substantive, entitling him or her to relief. Brown v.
Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
We reject Cooper’s argument that the fact that the Pennsylvania Supreme Court did
not timely notify him (as opposed to his attorney) that his petition for allocatur had been
denied should afford him relief. Cooper relies on an Eleventh Circuit case which held that
equitable tolling was warranted in a somewhat similar circumstance. Knight v. Schofield,
292 F.3d 709, 711 (11th Cir. 2002). In Knight, the petitioner had received assurances from
the clerk of the Georgia Supreme Court that he would be notified as soon as his petition for
certiorari was decided. Id. Despite these assurances, the petitioner did not learn of the

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1Cooper’s attorney had apparently been timely notified by the Court that the petition had
been denied but the attorney did not notify Cooper of this fact. We have held, however, that
an attorney’s miscalculation of habeas filing deadlines under the AEDPA is not the sort of
extraordinary circumstance that warrants equitable tolling. See Johnson v. Hendricks, 314
F.3d 159, 162-63 (3d Cir. 2002) (citing court of appeals cases); see also Fahy v. Horn, 240
F.3d 239, 244 (3d Cir. 2001) (“In non-capital cases, attorney error, miscalculation,
inadequate research or other mistakes have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling.”). Similarly, Cooper’s failure to receive
timely notice from his attorney fails the “extraordinary circumstance” test.
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Supreme Court’s denial until he inquired about the status of his case, and was informed by
the clerk that his petition had been denied nearly eighteen months earlier. In this
circumstance, the Eleventh Circuit held that equitable tolling was justified. The Court
reasoned that Knight had demonstrated reasonable diligence because the clerk had assured
him that he would be notified as soon as a decision was reached. The Court cautioned,
however, “that not in every case will a prisoner be entitled to equitable tolling until he
receives notice. Each case turns on its own facts.” Id.
The District Court correctly recognized that Cooper’s case was distinguishable from
Knight, and that Cooper had not demonstrated reasonable diligence in pursuing his habeas
claims. Importantly, unlike the petitioner in Knight, Cooper did not receive assurances
from the Supreme Court – or from anyone – that he would be notified as soon as his
petition for allocatur had been adjudicated.1 Moreover, although Cooper claims to have
made various attempts prior to September 30, 1997 to find out the status of his appeal,
when he learned on September 30th that allocatur had been denied, he did nothing for eight
months, finally filing his petition on June 11, 1998. These facts do not support any finding

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that Cooper was prevented in any “extraordinary way” from asserting his rights or that he
acted with the requisite due diligence.
We similarly reject Cooper’s argument as to the “evidence” removed from his cell.
As the District Court noted, Cooper ultimately filed his habeas petition without the benefit
of the materials concerning Renfroe’s ineffectiveness. Moreover, Cooper fails to
adequately explain why he could not have reproduced or regained the allegedly confiscated
materials in the six months between the confiscation on January 11, 1997 and the filing
deadline of July 11, 1997.
The judgment of the District Court will be affirmed.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge

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