Cray v. United States of America

Filing 13

ORDER granting 6 Motion to Dismiss; adopting 10 Report and Recommendations. Therefore, this civil action shall close and judgment shall be entered in favor of the Respondent. Signed by Judge J. Randal Hall on 4/3/17. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

REGINALD LONNEL CRAY,

Petitioner,
CV 116-135

v.

(Formerly CR 110-075)
UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation ("R&R"), to which objections have been filed. (Doc.
no. 12.) Although nothing in Petitioner's objections undermines the Magistrate Judge's
recommendation, the Court will briefly address Petitioner's arguments.

First, Petitioner argues he meets the standard for actual innocence because he is

factually innocent of Count Two of his indictment. (Doc. no. 12, p. 2.) He charges the
Magistrate Judge with mistakenly focusing on his failure to produce new evidence in support
of his claim rather than acknowledging that "no reasonable juror would have convicted him

[because] no physical images or videos ofchild pornography were found on [his] computer
hard drive." (Id)

Petitioner's argument ignores the conjunctive requirement of actual innocence—

Petitioner must be able "(1) to present 'new reliable evidence . . . that was not presented at

trial,' and (2) to show 'that it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt' in light of the new evidence." Rozzelle v.

Sec'v,Fla. Dep't of Corr.. 672 F.3d 1000, 1011 (11th Cir. 2012) (emphasis added) (citations
omitted), cert denied, 133 S. Ct. 351 (2012). As the Magistrate Judge noted, Petitioner
offers no new evidence but rather makes a legal argument based on testimony adduced at
trial. (See doc. no. 10, p. 7.) This is insufficient to prove actual innocence because "only

providing] new interpretations of existing evidence [is] not ... a sufficient showing of
actual innocence to overcome the procedural default." Claritt v. Kemp, 336 F. App'x 869,
871 (11th Cir. 2009).

Moreover, although no actual images were found on Petitioner's computer and hard

drive, Respondent details ample evidence adduced at trial indicating Petitioner's prior

possession of childpornography on those devices. (See doc. no. 6, pp. 5-6.) Thus, Petitioner
cannot show "it is more likely than not that no reasonable juror would have convicted him in

the light of the new evidence," and his first objection is without merit. McOuiggin v.
Perkins, 569 U.S. -, 133 S. Ct. 1924, 1935 (2013).

Second, Petitioner argues that the Magistrate Judge's reliance upon the Eleventh

Circuit's holdings in Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014), and Chavez v.

Sec'v, Fla. Dep't of Corr., 742 F.3d 940 (11th Cir. 2014), in rejecting his Martinez and
Trevino arguments are misplaced because both of those cases are distinguishable. (Doc. no.

12, pp. 3-4.) Although those cases are factually distinguishable, the Magistrate Judge
properly appliedthe law set forth in those cases to the present case.
In Arthur, the Eleventh Circuit explained at length why Martinez and Trevino do not

apply to federal rules such as the AEDPA statute of limitations,

The Martinez rule arose from the impact of state rules that (1) did not allow
petitioners to raise ineffective-trial-counsel claims on direct appeal (or made it
virtually impossible to do so) and (2) required petitioners to bring such claims
only in their initial-review collateral proceedings. In Martinez and Trevino,
collateral counsel did not raise such claims in the initial-review collateral

proceedings but raised them only in a second state collateral review
proceedings, which resulted in the claims being procedurally barred under
state rules. See Martinez, 132 S.Ct. at 1314; Trevino, 133 S.Ct. at 1915. In

Martinez and Trevino, it was how the state rules operated—the rules precluded
review of, or a meaningful opportunity to raise, ineffective-trial-counsel
claims, triggering a state procedural bar—which created the cause to excuse
the state bar.

In contrast, [Petitioner]'s case does not involve "cause" under the procedural
default doctrine. [Petitioner]'s § 2254 petition was dismissed because he filed
it well after AEDPA's limitations period expired, and he showed no basis for
tolling. See Arthur, 452 F.3d at 1250-54. [Petitioner]'s case concerns only the
operation of a federal rule—namely, the operation of AEDPA's one-year
statute of limitations. It was wholly the operation of AEDPA's federal
limitations period—independent of any state procedural rule—that barred
[Petitioner]'s § 2254 petition. Because [Petitioner]'s § 2254 petition was
denied due to his complete failure to timely file that § 2254 petition, the
Supreme Court's analysis in Martinez and Trevino of when and how "cause"
might excuse noncompliance with a state procedural rule is wholly
inapplicable here.

Arthur, 739 F.3d at 630-31 (emphasis in original); see also Simmons v. Jones, No. 3:14-CV374/MCR/CJK, 2015 WL 5190561, at *4 (N.D. Fla. June 26, 2015), report and

recommendation adopted, No. 3:14-CV-374/MCR/CJK, 2015 WL 5190556 (N.D. Fla. Sept.

4, 2015) (Martinez rule does not apply to the AEDPA's limitations period after Arthur);
Warren v. Crews, No. 3:13-CV-296/RV/EMT, 2014 WL 2050284, at *6 (N.D. Fla. May 19,

2014) (same); Brown v. Crews, No. 3:13-CV-64/MCR/EMT, 2014 WL 4409952, at *4 (N.D.
Fla. Sept. 8, 2014) (same).

In Chavez, the Eleventh Circuit merely reiterated that Martinez and Trevino do not
apply to AEDPA's statute of limitations:

We have emphasized that the equitable rule established in Martinez applies
only to excusing a procedural default of ineffective-trial-counsel claims and,
for that reason, has no application to other matters like the one-year statute of
limitations period for filing a § 2254 petition . . . . And while the federal
limitations period is subject to equitable tolling in certain circumstances, we
have rejected the notion that anything in Martinez provides a basis for
equitably tolling the filing deadline.

Chavez. 742 F.3d at 945-46 (internal quotations omitted). Nothing in Chavez undermined
the Court's rationale in Arthur that Martinez and Trevino do not apply to the operation of
federal rules.

Just as Martinez and Trevino were inapplicable to a federal rule—namely, AEDPA's
statute of limitations—in the context of a § 2254 petition, they are equally inapplicable to
that same federal rule in the context of Petitioner's § 2255 motion. Therefore, Petitioner's
second objection is also without merit.

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, GRANTS Respondent's motion

to dismiss (doc. no. 6), and DISMISSES Petitioner's motion filed pursuant to 28 U.S.C. §
2255.

Further, a federal prisoner must obtain a certificate of appealability ("COA") before

appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules
Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner
makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the Report and Recommendation, and in consideration of the
standards enunciated in Slack v. McDaniel. 529 U.S. 473, 482-84 (2000), Petitioner has

failed to make the requisite showing. Accordingly, the Court DENIES a COA in this case.1
Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not

be taken in good faith. Accordingly, Petitioner is not entitled to appeal in forma pauperis.
See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action and DmECTS the Clerk to
enter final judgment in favor of Respondent.

SO ORDERED this *^d>

day ofApril, 2017, at Augusta, Georgia.

HALL

DISTRICT JUDGE

DISTRICT OF GEORGIA

u,If the court denies a certificate, a party may not appeal the denial but may seek a

certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2255 Proceedings.