United States v. Rodney Cooper , 642 F. App'x 514 ( 2016 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0100n.06
No. 14-6448
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Feb 18, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
RODNEY LYNN COOPER, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. After a jury trial, Rodney Cooper was convicted
of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g), and was sentenced
within the U.S. Sentencing Guidelines range to 120 months of imprisonment. Cooper now
appeals, raising only Sixth Amendment claims asserting that his trial counsel had a conflict of
interest and that both trial and sentencing counsel were ineffective. Because the record is not
sufficient to review these claims, we AFFIRM Cooper’s conviction without prejudice to the
claims being asserted in a proceeding under 28 U.S.C. § 2255.
I.
Cooper’s conviction arises out of the disappearance of a black Ruger .380-caliber pistol
from Shylock’s Pawn, a pawnshop and firearms dealer in Clinton, Tennessee. Before the store
opened at 9:00 AM, an employee removed the handgun inventory from a safe and placed the
new handguns—including the Ruger, a light concealable pistol—in a display case near the front
door. Cooper entered the store at around 9:25 AM and pawned a Sony PlayStation 2. Around
No. 14-6448
United States of America v. Cooper
10:00 AM, a customer asked to see the Ruger, and the store’s owner and an employee discovered
it was gone. A review of surveillance video appeared to show Cooper leaning over the display
case, reaching inside, and putting something in his right pocket. Shylock’s Pawn alerted the
police.
A federal grand jury indicted Cooper on one count of possession of a firearm by a felon.
The court initially appointed counsel from the federal defender’s office, but substituted Donny
M. Young after the federal defender learned of a conflict. As the case progressed, Cooper filed
two pro se motions to appoint new counsel. Each time, Cooper withdrew the motion after
reconciling with Young. When plea negotiations failed, Cooper filed a third pro se motion for
substitute counsel. The magistrate judge held a hearing and concluded, “[R]ight or wrong,
perception or reality, I don’t think Mr. Cooper trusts Mr. Young very far.” R. 81, PID 610–11.
The court appointed Brian J. Hunt to represent Cooper at trial.
The two-day trial began on February 11, 2013. The government called three witnesses
from Shylock’s Pawn and played a recording of a call Cooper made from jail in which he
explained that he stole a starter pistol, not the Ruger. On cross-examination, Hunt sought to
demonstrate that there were other opportunities for the Ruger to disappear and adduced
testimony that Shylock’s Pawn did not keep a written inventory of each firearm’s physical
location. The jury also heard testimony about the store’s DVR surveillance system, which saved
recordings from eight or nine cameras to a hard drive. Hunt elicited testimony that the store
preserved only fifteen minutes of video from the day of the theft—the period when Cooper was
in the store—and no footage of other store activity before and after that short time period. The
defense called one witness: a private investigator hired by Hunt. In his brief testimony, the
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United States of America v. Cooper
investigator called into question the credibility of the store employee working the day the gun
disappeared. The jury found Cooper guilty.
Before sentencing, Cooper filed a pro se motion to substitute counsel, alleging that Hunt
had a conflict of interest. The magistrate judge held a hearing and excused the government
before discussing the alleged conflict with Hunt and Cooper. Without making any findings
about the conflict, the magistrate judge suggested that Hunt should not continue as counsel
because an ineffective-assistance claim was likely. Hunt agreed, and the magistrate judge
appointed Richard Gaines as substitute counsel. At sentencing, the district court denied Gaines’s
request for a downward variance and imposed a within-Guidelines sentence of 120 months of
imprisonment.
II.
On appeal, Cooper argues that Hunt and Gaines provided ineffective assistance, and that
Hunt had a conflict of interest. Ineffective-assistance claims are mixed questions of law and fact
reviewed de novo. United States v. Ferguson, 669 F.3d 756, 761–62 (6th Cir. 2012). The Sixth
Amendment guarantees the right to effective assistance of counsel, Strickland v. Washington,
466 U.S. 668, 686 (1984), and there is “a correlative right to representation that is free from
conflicts of interest,” Wood v. Georgia, 450 U.S. 261, 271 (1981). A defendant claiming
ineffective assistance must show deficient performance and prejudice. United States v. Johnson,
765 F.3d 644, 647 (6th Cir. 2014). However, conflict-of-interest claims are generally subject to
“a modified version” of the ineffective-assistance test, Moore v. Mitchell, 708 F.3d 760, 777 (6th
Cir. 2013); prejudice is presumed if a defendant shows that an “actual conflict of interest
adversely affected his lawyer’s performance,” Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980).
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“As a general rule, this Court declines to rule on claims of ineffective assistance of
counsel on direct appeal,” United States v. Detloff, 794 F.3d 588, 594 (6th Cir. 2015), “because
the record is generally inadequate to evaluate such a claim,” United States v. Foreman, 323 F.3d
498, 502 (6th Cir. 2003), and “appellate courts are not equipped to resolve factual issues,”
United States v. Garner, 491 F.3d 532, 535 (6th Cir. 2007). However, we will review an
ineffective-assistance claim “in rare cases where the error is apparent from the existing record.”
United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006). In determining whether the
existing record is adequate, we have declined review when “further exploration and findings of
facts would be helpful” to “ensure the record is sufficiently developed before reaching an
answer.” United States v. Ross, 703 F.3d 856, 882 (6th Cir. 2012).
Cooper argues that Hunt had a conflict because a prior confrontation between Cooper’s
family and Hunt’s law firm created an adversarial relationship. The only support for Cooper’s
claim is his own allegations, which he raised in unsworn colloquies with the court during sealed
hearings outside the presence of the government. Although Cooper maintains that his allegations
are unrebutted, the district court made no findings of fact. Because the conflict is not apparent
from the existing record, we decline to resolve this claim. See United States v. Hall, 200 F.3d
962, 965–66 (6th Cir. 2000) (explaining that a defendant must point to specific instances of
actual conflict in the record).
Regardless of any conflict, Cooper asserts that Hunt was ineffective at trial. First,
Cooper contends that Hunt was ineffective because he failed to call an unnamed Shylock’s Pawn
employee. We have no basis to evaluate this claim because this potential witness is not
discussed in the record. See United States v. Sullivan, 431 F.3d 976, 986–87 (6th Cir. 2005).
Next, Cooper asserts that Hunt rendered ineffective assistance because he failed to: (1) object to
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the admission of the surveillance footage; (2) object to the admission of the jail call or request a
limiting instruction; and (3) point out inconsistencies in the testimony of the government’s
witnesses. The record is not sufficiently developed to determine whether Hunt’s decision not to
pursue these issues was deficient performance or a reasonable trial strategy. See, e.g., United
States v. Wells, 623 F.3d 332, 347–48 (6th Cir. 2010); United States v. Caver, 470 F.3d 220, 250
(6th Cir. 2006); United States v. Crowe, 291 F.3d 884, 886 (6th Cir. 2002).
Cooper also argues that Gaines was ineffective because he failed to pursue Hunt’s alleged
conflict and exhibited general neglect. Without an adequate record to review Hunt’s alleged
conflict, we cannot review Cooper’s claim that Gaines was ineffective.
Lastly, Cooper argues that the district court abused its discretion by failing to conduct an
evidentiary hearing on Hunt’s conflict, and requests a remand for that purpose in any event. The
district court was not required to order an evidentiary hearing sua sponte before granting
Cooper’s pro se motion to replace Hunt. Cf. United States v. Giorgio, 802 F.3d 845, 850 (6th
Cir. 2015). And although a remand for further exploration of a conflict-of-interest claim may be
appropriate or even required in some circumstances, see Wood, 450 U.S. at 272–74; United
States v. Taylor, 657 F.2d 92, 94 (6th Cir. 1981) (per curiam), we decline to remand in this case
because the possibility of a conflict is not apparent from the record. Cooper may raise his
conflict-of-interest and ineffective-assistance claims in a collateral challenge to his conviction
under 28 U.S.C. § 2255. See, e.g., Detloff, 794 F.3d at 595; Ross, 703 F.3d at 882.
For these reasons, we AFFIRM Cooper’s conviction without prejudice to his right to
bring his conflict-of-interest and ineffective-assistance claims in a timely proceeding pursuant to
28 U.S.C. § 2255.
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