                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

Cooper v. Price
Precedential or Non-Precedential:

Docket 98-2134




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Recommended Citation
"Cooper v. Price" (2002). 2002 Decisions. Paper 97.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/97


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                                                     NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                              ___________

                              No. 98-2134
                              ___________


                          BRUCE A. COOPER,
                                         Appellant

                                 v.

                      JAMES PRICE, WARDEN;
      THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
       THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                D.C. Civil Action No. 98-cv-03009
                  (Honorable James McGirr Kelly)
                       ___________________


                      Argued January 15, 2002

     Before:   SCIRICA, GREENBERG and BRIGHT*, Circuit Judges

                    (Filed: February 5, 2002)




     *The Honorable Myron H. Bright, United States Circuit Judge for the
Eighth Judicial
Circuit, sitting by designation.
ANTHONY N. IANNARELLI, JR., ESQUIRE (ARGUED)
115 West Allendale Avenue
P.O. Box 200
Allendale, New Jersey 07401-0336

     Attorney for Appellant


JOHN W. GOLDSBOROUGH, ESQUIRE (ARGUED)
DONNA G. ZUCKER, ESQUIRE
MICHELE S. DAVIDSON, ESQUIRE
Office of District Attorney
1421 Arch Street, 5th Floor
Philadelphia, Pennsylvania 19102

     Attorneys for Appellees


                        __________________

                       OPINION OF THE COURT
                        __________________

PER CURIAM.

     Appellant Bruce Cooper was found guilty by a jury of second degree
murder and
robbery in 1985 and sentenced to a mandatory term of life imprisonment.
His direct
appeal was dismissed by the Superior Court for failure to file a brief.
In August 1988 he
filed a state post-conviction petition and counsel was appointed to
represent him. After
several evidentiary hearings, the trial court denied the petition and the
Superior Court
affirmed. The Pennsylvania Supreme Court denied Cooper's petition for
allowance of
appeal on July 12, 1996.
     On June 11, 1998, almost two years later, Cooper filed a petition for
writ of habeas
corpus pursuant to 28 U.S.C.   2254, in which he raised a juror misconduct
claim, a claim
that the prosecutor withheld exculpatory evidence, and a claim that
counsel rendered
ineffective assistance in violation of the Sixth Amendment in failing to
present a
competent defense and in failing to pursue a direct appeal. The District
Attorney of
Philadelphia answered the petition and raised the one-year statute of
limitations defense
under 28 U.S.C.    2244(d)(1). The Magistrate Judge recommended that the
petition be
dismissed as time-barred, and the District Court agreed, adopting the
Magistrate Judge's
report as the opinion of the court. The petition was denied by order
entered on November
23, 1998 and Cooper appealed.
     On June 9, 1999, we granted a certificate of appealability, and
ordered the parties
to show cause why the order should not be vacated and the matter summarily
remanded
for consideration of appellant's equitable tolling arguments, as set forth
in his reply to the
respondent's answer and his objections to the Report and Recommendation,
in light of
this Court's decision in Miller v. New Jersey State Dep't of Corrections,
145 F.3d 616 (3d
Cir. 1998). Following the submission of responses, we appointed counsel
to represent
Cooper and the appeal proceeded to briefing.
     We will vacate the order of the District Court, and remand the matter
for further
proceedings in accordance with Miller v. New Jersey State Dep't of
Corrections, 145 F.3d
616, 618 (3d Cir. 1998) (equitable tolling appropriate where principles of
equity would
make rigid application of habeas statute of limitations unfair). On
remand the District
Court should address Cooper's argument that he was not aware of the
decision denying
his petition for allowance of appeal until September 1997, the copy of a
letter from the
state supreme court dated September 30, 1997 advising him that his
petition had been
denied on July 12, 1996, his argument that prison officials searched his
cell and removed
and destroyed legal materials relating to his criminal case which also
delayed the filing of
his habeas petition, and the grievance-related and other materials
submitted in support of
this argument.
     The District Court appears to have overlooked these arguments, and we
will not
consider them, or the extensive rebuttal offered by the appellees
(Appellees' Brief, at 17-
30), because they involve a mixed question of law and fact and are best
addressed by the
District Court in the first instance. See Meyers v. Gillis, 93 F.3d 1147,
1152 (3d Cir.
1996). We express no view on the merits of Cooper's arguments.
     We will vacate the order of the District Court entered on November
23, 1998, and
remand the matter for further proceedings.
TO THE CLERK:

         Please file the foregoing opinion.




                                       Circuit Judge

DATED:
                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 98-2134
                           ___________


                          BRUCE A. COOPER,
                                         Appellant

                               v.

                      JAMES PRICE, WARDEN;
      THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
       THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                D.C. Civil Action No. 98-cv-03009
                  (Honorable James McGirr Kelly)
                       ___________________

                      Argued January 15, 2002
     Before:   SCIRICA, GREENBERG and BRIGHT*, Circuit Judges

                             JUDGMENT

          This cause came to be heard on the record from the United States
District
Court for the Eastern District of Pennsylvania and was argued by counsel
on January 15,
2002.


     *The Honorable Myron H. Bright, United States Circuit Judge for the
Eighth Judicial
Circuit, sitting by designation.
          On consideration whereof, it is now hereby ORDERED and ADJUDGED
by this Court that the judgment of the District Court entered November 23,
1998, be, and
the same is hereby vacated and the case remanded for proceedings
consistent with this
opinion. All of the above in accordance with the opinion of this Court.

                                    ATTEST:




                                    Clerk
DATED: 5 February 2002
