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Cray v. United States

United States District Court, S.D. Georgia, Augusta Division

April 3, 2017




         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 of child 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'tof 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 provid[ing] 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 child pornography 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 applied the 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-CV- 374/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 ...

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