United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL DISTRICT JUDGE
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 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.)
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.
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).
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.
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
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).
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.
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 ...