COOK v. CREWS

Filing 14

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The 11 REPORT AND RECOMMENDATION is ACCEPTED. The clerk must enter judgment stating, "The petition is DENIED with prejudice." A certificate of appealability is DENIED. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 9/18/2014. (sac)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

MONTRAIL COOK,
Petitioner,
v.

CASE NO. 4:13cv596-RH/CAS

MICHAEL CREWS,
Respondent.
_________________________________/

ORDER DENYING THE PETITION AND
DENYING A CERTIFICATE OF APPEALABILITY

By a petition for a writ of habeas corpus under 28 U.S.C. § 2254, Montrail
Cook seeks relief from a Florida state-court conviction. The petition is before the
court on the magistrate judge’s report and recommendation, ECF No. 11, and the
objections, ECF No. 13. I have reviewed de novo the issues raised by the
objections.
The report and recommendation correctly concludes that the petition was
filed after expiration of the one-year statute of limitations, see 28 U.S.C. § 2244(d),
and that the limitations period was not equitably tolled.

Case No. 4:13cv596-RH/CAS

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In arguing the contrary, Mr. Cook cites Martinez v. Ryan, 132 S. Ct. 1309
(2012). Martinez held that in limited circumstances, inadequate assistance of
counsel during an initial collateral proceeding in state court may constitute cause
for a procedural default in that proceeding, allowing a corresponding federal claim
to proceed on the merits under § 2254. But as the report and recommendation
correctly notes, the law of the circuit is that Martinez does not affect the statute of
limitations. See Arthur v. Thomas, 739 F.3d 611 (11th Cir. 2014). More recently,
the Eleventh Circuit reiterated that holding and extended it to the issue of equitable
tolling:
[T]he equitable rule in Martinez “applies only to the issue of cause to
excuse the procedural default of an ineffective assistance of trial
counsel claim that occurred in a state collateral proceeding” and “has
no application to the operation or tolling of the § 2244(d) statute of
limitations” for filing a § 2254 petition. Chavez v. Sec'y, Fla. Dep't of
Corr., 742 F.3d 940, 943 (11th Cir.2014) (citing Arthur v. Thomas,
739 F.3d 611, 629–31 (11th Cir.2014)).
Lambrix v. Sec’y, Dep’t of Corr., 756 F.3d 1246 (11th Cir. 2014).
This does not mean that equitable tolling never applies to ineffectiveassistance claims of this kind. But as correctly set out in the repot and
recommendation, Mr. Cook has not alleged facts sufficient to support equitable
tolling.
Rule 11 of the Rules Governing § 2254 Cases requires a district court to
“issue or deny a certificate of appealability when it enters a final order adverse to

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the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting
out the standards applicable to a § 2254 petition on the merits). As the Court said
in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing 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, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in
order to obtain a certificate of appealability when dismissal is based on procedural
grounds, a petitioner must show, “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.” Id. at 484.
The petitioner has not made the required showing. This order thus denies a
certificate of appealability.
For these reasons,

Case No. 4:13cv596-RH/CAS

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IT IS ORDERED:
1. The report and recommendation is ACCEPTED.
2. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
3. A certificate of appealability is DENIED.
4. The clerk must close the file.
SO ORDERED on September 18, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv596-RH/CAS