Cooley v. Lamar

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON COOLEY, # 332619, 	*
*
Petitioner, 	*
*
vs. 	* CIVIL ACTION NO. 24-00215-TFM-B
*
DAVID LAMAR, 	*
*
Respondent. 	*
REPORT AND RECOMMENDATION
Petitioner Jason Cooley (“Cooley”), an Alabama prison inmate
proceeding without an attorney (pro se), has petitioned this Court
for 	federal 	habeas 	corpus 	relief 	pursuant 	to 	28 	U.S.C. 	§ 	2254.1
The District Judge assigned to this case referred Cooley’s petition
to 	the 	undersigned 	Magistrate 	Judge 	for 	consideration 	and
recommendation pursuant to 28 U.S.C. § 636(b)(1) and Rule 8(b) of
the 	Rules 	Governing 	Section 	2254 	Cases 	in 	the 	United 	States
District 	Courts. 	(Doc. 	2). 	The 	undersigned 	has 	reviewed 	the
parties’ 	filings 	and 	exhibits 	and 	finds 	there 	is 	sufficient
information 	before 	the 	Court 	to 	resolve 	the 	issues 	presented
without an evidentiary hearing.2 	For the reasons set forth below,
1 Cooley is presently incarcerated at Bullock Correctional Facility
in 	Union 	Springs, 	Alabama, 	where 	Respondent 	David 	Lamar 	is 	the
Warden.
2 Because 	Cooley 	filed 	his 	federal 	habeas 	corpus 	petition 	after
April 	24, 	1996, 	this 	case 	is 	governed 	by 	the 	Antiterrorism 	and
Effective 	Death 	Penalty 	Act 	(“AEDPA”). 	“AEDPA 	expressly 	limits
the extent to which hearings are permissible, not merely the extent
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the undersigned recommends that Cooley’s habeas petition (Doc. 5)
be 	DISMISSED 	with 	prejudice 	as 	time-barred 	pursuant 	to 	28 	U.S.C.
§ 2244(d)(1).
I. 	BACKGROUND
On November 19, 2020, a grand jury in Mobile County, Alabama
indicted 	Cooley 	for 	murder, 	a 	violation 	of 	Alabama 	Code 	§ 	13A-6-
2(a)(1). 	(Doc. 	10-1 	at 	1). 	The 	indictment 	alleged 	that 	Cooley
“did 	intentionally 	cause 	the 	death 	of 	[redacted], 	to 	wit: 	by
shooting her with a gun.” 	(Id.). 	Cooley was apparently released
on bond. 	(See Doc. 10-3 at 1).
In 	December 	2021, 	Cooley 	was 	charged 	with 	and 	arrested 	for
assault 	based 	on 	allegations 	that 	he 	brandished 	a 	handgun 	during
an argument and subsequently shot at and struck the victim multiple
times. 	(Id.). 	On September 23, 2022, a Mobile County grand jury
indicted 	Cooley 	for 	assault 	in 	the 	second 	degree, 	a 	violation 	of
Alabama Code § 13A-6-21.3 	(Doc. 10-2 at 1). 	The indictment alleged
that Cooley “did, on or about December 24, 2021 with the intent to
cause 	physical 	injury 	to 	[redacted], 	cause 	physical 	injury 	to
to which they are required.” 	Kelley v. Sec’y for Dep’t of Corr.,
377 	F.3d 	1317, 	1337 	(11th 	Cir. 	2004). 	Cooley 	has 	failed 	to
establish 	that 	an 	evidentiary 	hearing 	is 	warranted 	in 	this 	case.
See 	Birt 	v. 	Montgomery, 	725 	F.2d 	587, 	591 	(11th 	Cir. 	1984) 	(en
banc) 	(“The 	burden 	is 	on 	the 	petitioner 	in 	a 	habeas 	corpus
proceeding to establish the need for an evidentiary hearing.”).
3 Cooley was indicted for murder in Case No. CC-2020-2599 and was
indicted for second-degree assault in Case No. CC-2022-3051. 	(See,
e.g., Docs. 10-5, 10-12).
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[redacted], 	by 	means 	of 	a 	deadly 	weapon 	or 	dangerous 	instrument,
to-wit: by shooting him with a handgun.” 	(Id.).
On January 17, 2023, Cooley pled guilty to murder and assault
in the second degree, and he was adjudged guilty of those offenses.
(Docs. 	10-5, 	10-6, 	10-12). 	On 	February 	2, 	2023, 	the 	court
sentenced 	Cooley 	to 	twenty 	years 	in 	prison 	on 	the 	murder 	charge
and ten years in prison on the assault charge, with the sentences
to run concurrently. 	(Docs. 10-5, 10-12). 	Cooley did not appeal
his 	convictions 	or 	sentences 	to 	the 	Alabama 	Court 	of 	Criminal
Appeals. 	(Doc. 5 at 3).
On 	June 	20, 	2024,4 Cooley 	commenced 	this 	action 	by 	filing 	a
petition seeking federal habeas corpus relief pursuant to 28 U.S.C.
§ 2254. 	(Doc. 1). 	Cooley’s initial § 2254 habeas petition raised
only the following claim:
GROUNDS RAISE THATS ENTITLED TO RELIEF: (“FOR VIOLATION
OF 	U.S. 	CONSTITUTIONAL 	AMENDMENT 	XIV 	[1868] 	Sec 	1. 	The
Bill of Right”).
Petitioner Jason Cooley . . . is entitled to relief for
the judgement of conviction and sentence. 	In a case in
1627, 	the 	judges 	decided 	that 	a 	warrant 	of 	the 	privy
4 	Under 	the 	mailbox 	rule, 	a 	prisoner’s 	pro 	se 	federal 	habeas
petition 	is 	deemed 	filed 	on 	the 	date 	it 	is 	delivered 	to 	prison
officials for mailing. 	Washington v. United States, 243 F.3d 1299,
1301 	(11th 	Cir. 	2001) 	(per 	curiam). 	Absent 	evidence 	to 	the
contrary, that date is assumed to be the date the prisoner signed
the motion. 	Id. 	Cooley’s initial petition is dated June 20, 2024.
(Doc. 1 at 2).
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council 	supplied 	sufficient 	proof 	to 	detain 	the
prisoner.5
(Id. at 1).
On 	June 	28, 	2024, 	the 	undersigned 	ordered 	Cooley 	to 	refile
his petition on the form required by this Court for § 2254 habeas
petitions. 	(Doc. 3). 	On July 5, 2024, Cooley filed an amended §
2254 habeas petition on the proper form, which is now his operative
petition in this matter. 	(Doc. 5). 	As best the Court can discern,
Cooley’s 	amended 	§ 	2254 	habeas 	petition 	asserts 	the 	following
grounds for relief:
(1) 	Cooley was forced to plead guilty against his will.
(2) 	Cooley’s 	guilty 	plea 	was 	not 	made 	knowingly, 	intelligently,
and voluntarily.
(3) 	Cooley’s attorney rendered ineffective assistance of counsel
by coercing Cooley into pleading guilty and failing to ensure
that 	his 	guilty 	plea 	was 	made 	knowingly, 	intelligently, 	and
voluntarily.
(See id. at 6-8).
Respondent filed an answer asserting that Cooley’s amended §
2254 	habeas 	petition 	is 	time-barred 	by 	the 	one-year 	statute 	of
limitations 	contained 	in 	28 	U.S.C. 	§ 	2244(d)(1). 	(Doc. 	10 	at 	4-
6). 	Respondent 	further 	contends 	that 	Cooley’s 	claims 	are
procedurally 	defaulted 	because 	Cooley 	failed 	to 	properly 	raise
them in the state courts, and they would now be procedurally barred
5 Unless otherwise indicated, quoted language from Cooley’s pro se
filings 	is 	reproduced 	herein 	without 	modification 	or 	correction
for typographical, grammar, or spelling errors.
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under 	state 	law. 	(Id. 	at 	7-10). 	Cooley 	filed 	a 	reply. 	(Doc.
11). 	Thus, Cooley’s habeas petition is ripe for consideration.
II. 	STANDARD OF REVIEW
The 	Court’s 	review 	of 	Cooley’s 	petition 	is 	governed 	by 	the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Under 	the 	AEDPA, 	“the 	role 	of 	the 	federal 	courts 	is 	strictly
limited.” 	Jones v. Walker, 496 F.3d 1216, 1226 (11th Cir. 2007).
Specifically, 28 U.S.C. § 2254 provides:
(d) An application for a writ of habeas corpus on behalf
of 	a 	person 	in 	custody 	pursuant 	to 	the 	judgment 	of 	a
State 	court 	shall 	not 	be 	granted 	with 	respect 	to 	any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –-
(1) resulted in a decision that was contrary to, or
involved 	an 	unreasonable 	application 	of, 	clearly
established 	Federal 	law, 	as 	determined 	by 	the
Supreme Court of the United States; or
(2) 	resulted 	in 	a 	decision 	that 	was 	based 	on 	an
unreasonable determination of the facts in light of
the 	evidence 	presented 	in 	the 	State 	court
proceeding.
(e)(1) In a proceeding instituted by an application for
a writ of habeas corpus by a person in custody pursuant
to 	the 	judgment 	of 	a 	State 	court, 	a 	determination 	of 	a
factual issue made by a State court shall be presumed to
be 	correct. 	The 	applicant 	shall 	have 	the 	burden 	of
rebutting 	the 	presumption 	of 	correctness 	by 	clear 	and
convincing evidence.
28 U.S.C. § 2254.
Thus, 	a 	federal 	court 	may 	grant 	habeas 	relief 	only 	if 	the
state 	court 	arrives 	at 	a 	conclusion 	contrary 	to 	that 	reached 	by
the United States Supreme Court on a question of law or decides a
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case differently from the way the United States Supreme Court did
on 	a 	set 	of 	materially 	indistinguishable 	facts, 	or 	if 	the 	state
court’s 	decision 	involves 	an 	unreasonable 	factual 	determination.
Williams 	v. 	Taylor, 	529 	U.S. 	362, 	405 	(2000); 	Price 	v. 	Vincent,
538 	U.S. 	634, 	638-41 	(2003) 	(noting 	that 	a 	federal 	habeas 	court
will 	disturb 	a 	state 	court’s 	decision 	on 	the 	merits 	only 	if 	the
petitioner shows that the decision was contrary to, or involved an
unreasonable 	application 	of, 	clearly 	established 	constitutional
law as determined by the Supreme Court, or if the decision rested
upon an unreasonable factual determination).
“[A] 	state 	prisoner 	must 	show 	that 	the 	state 	court’s 	ruling
on 	the 	claim 	being 	presented 	in 	federal 	court 	was 	so 	lacking 	in
justification 	that 	there 	was 	an 	error 	well 	understood 	and
comprehended in existing law beyond any possibility for fairminded
disagreement.” 	Harrington 	v. 	Richter, 	562 	U.S. 	86, 	103 	(2011).
In 	other 	words, 	“if 	some 	fairminded 	jurists 	could 	agree 	with 	the
state 	court’s 	decision, 	although 	others 	might 	disagree, 	federal
habeas 	relief 	must 	be 	denied. 	. 	. 	. 	[T]he 	deference 	due 	is 	heavy
and 	purposely 	presents 	a 	daunting 	hurdle 	for 	a 	habeas 	petitioner
to 	clear.” 	Loggins 	v. 	Thomas, 	654 	F.3d 	1204, 	1220 	(11th 	Cir.
2011); 	see 	also 	Greene 	v. 	Fisher, 	565 	U.S. 	34, 	38 	(2011) 	(noting
that 	the 	AEDPA 	standard 	is 	purposely 	onerous 	because 	“federal
habeas relief functions as a guard against extreme malfunctions in
the 	state 	criminal 	justice 	systems, 	and 	not 	as 	a 	means 	of 	error
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correction”) 	(quotation 	omitted); 	Cullen 	v. 	Pinholster, 	563 	U.S.
170, 181 (2011) (noting that the AEDPA standard “is a difficult to
meet 	. 	. 	. 	and 	highly 	deferential 	standard 	for 	evaluating 	state-
court 	rulings, 	which 	demands 	that 	state-court 	decisions 	be 	given
the benefit of the doubt”) (quotations omitted).
Accordingly, 	in 	evaluating 	Cooley’s 	§ 	2254 	petition, 	the
Court takes care to abide by the stricture that “[a] federal court
may not grant habeas relief on a claim a state court has rejected
on the merits simply because the state court held a view different
from 	its 	own.” 	Hill 	v. 	Humphrey, 	662 	F.3d 	1335, 	1355 	(11th 	Cir.
2011); see also Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277,
1286 (11th Cir. 2012) (“This inquiry is different from determining
whether 	we 	would 	decide 	de 	novo 	that 	the 	petitioner’s 	claim 	had
merit.”). 	Having 	established 	the 	proper 	standard 	of 	review, 	the
Court will proceed to examine the timeliness of Cooley’s claims.
III. 	ANALYSIS
A. 	Timeliness
Pursuant to 28 U.S.C. § 2244(d)(1), a state prisoner seeking
a federal habeas corpus remedy must file his habeas corpus petition
within a one-year period of limitation. 	The statute provides that:
A 	1-year 	period 	of 	limitation 	shall 	apply 	to 	an
application 	for 	a 	writ 	of 	habeas 	corpus 	by 	a 	person 	in
custody pursuant to the judgment of a State court. 	The
limitation period shall run from the latest of--
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(A) 	the 	date 	on 	which 	the 	judgment 	became 	final 	by
the 	conclusion 	of 	direct 	review 	or 	the 	expiration 	of
the time for seeking such review;
(B) 	the 	date 	on 	which 	the 	impediment 	to 	filing 	an
application 	created 	by 	State 	action 	in 	violation 	of
the 	Constitution 	or 	laws 	of 	the 	United 	States 	is
removed, 	if 	the 	applicant 	was 	prevented 	from 	filing
by such State action;
(C) 	the 	date 	on 	which 	the 	constitutional 	right
asserted 	was 	initially 	recognized 	by 	the 	Supreme
Court, if the right has been newly recognized by the
Supreme 	Court 	and 	made 	retroactively 	applicable 	to
cases on collateral review; or
(D) 	the 	date 	on 	which 	the 	factual 	predicate 	of 	the
claim 	or 	claims 	presented 	could 	have 	been 	discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
Where 	a 	petitioner 	asserts 	multiple 	claims 	with 	different
dates 	triggering 	the 	statute 	of 	limitations 	under 	§ 	2244(d)(1),
the 	applicable 	trigger 	date 	is 	determined 	on 	a 	claim-by-claim
basis. 	Zack 	v. 	Tucker, 	704 	F.3d 	917, 	926 	(11th 	Cir. 	2013) 	(en
banc). 	The one-year limitation period “typically begins to run on
the 	date 	on 	which 	the 	petitioner’s 	conviction 	became 	final.”
Wilmore v. United States, 2018 U.S. App. LEXIS 24541, at *4, 2018
WL 	5295886, 	at 	*2 	(11th 	Cir. 	Aug. 	28, 	2018) 	(citing 	28 	U.S.C. 	§
2244(d)(1)(A)).
Here, 	there 	is 	no 	allegation 	or 	information 	suggesting 	that
any 	of 	the 	alternative 	triggering 	dates 	provided 	in 	§
2244(d)(1)(B)-(D) 	apply 	to 	any 	of 	Cooley’s 	claims 	in 	the 	amended
§ 2254 habeas petition. 	Thus, the one-year limitation period for
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Cooley’s claims commenced on “the date on which the judgment became
final by the conclusion of direct review or the expiration of the
time for seeking such review.” 	See 28 U.S.C. § 2244(d)(1)(A).
Cooley 	did 	not 	appeal 	his 	convictions 	or 	sentences. 	(See
Doc. 5 at 3). 	Therefore, his convictions became final for purposes
of § 2244(d)(1)(A) on March 16, 2023, when the time for filing an
appeal 	expired. 	See 	Ala. 	R. 	App. 	P. 	4(b)(1); 	Bonner 	v. 	Daniels,
2017 	U.S. 	App. 	LEXIS 	27809, 	at 	*4, 	2017 	WL 	5068422, 	at 	*2 	(11th
Cir. 	Mar. 	30, 	2017). 	Thus, 	in 	the 	absence 	of 	a 	tolling 	event,
Cooley 	had 	one 	year 	from 	March 	16, 	2023, 	within 	which 	to 	file 	a
federal habeas petition.
Once 	the 	federal 	statute 	of 	limitations 	is 	triggered 	and
begins 	to 	run, 	it 	can 	be 	tolled 	in 	two 	ways: 	through 	statutory
tolling 	or 	equitable 	tolling. 	Brown 	v. 	Barrow, 	512 	F.3d 	1304,
1307 (11th Cir. 2008) (per curiam). 	Statutory tolling is codified
at 	28 	U.S.C. 	§ 	2244(d)(2), 	which 	tolls 	the 	one-year 	limitation
period 	during 	the 	pendency 	of 	“a 	properly 	filed 	application 	for
State 	post-conviction 	or 	other 	collateral 	review” 	of 	the
underlying judgment. 	See 28 U.S.C. § 2244(d)(2).
The limitation period in this case was not statutorily tolled.
Although Cooley filed various pro se motions in the circuit court
after he was convicted and sentenced,6 none of those motions was a
6 In 	his 	amended 	§ 	2254 	habeas 	petition, 	Cooley 	denies 	having
“previously 	filed 	any 	petitions 	(Rule 	20, 	Rule 	32, 	Error 	Coram
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“properly 	filed 	application 	for 	State 	post-conviction 	or 	other
collateral review” within the meaning of 28 U.S.C. § 2244(d)(2).
“An 	application 	is 	properly 	filed 	‘when 	its 	delivery 	and
acceptance 	are 	in 	compliance 	with 	the 	applicable 	laws 	and 	rules
governing 	filings.’” 	Green 	v. 	Sec’y, 	Dep’t 	of 	Corr., 	877 	F.3d
1244, 1247 (11th Cir. 2017) (quoting Artuz v. Bennett, 531 U.S. 4,
8 	(2000)). 	“The 	laws 	and 	rules 	governing 	filings 	‘usually
prescribe, for example, the form of the document, the time limits
upon its delivery, the court and office in which it must be lodged,
and 	the 	requisite 	filing 	fee.’” 	Id. 	“[U]nder 	Artuz, 	[courts]
look to the state procedural rules governing filings to determine
whether 	an 	application 	for 	state 	post-conviction 	relief 	is
‘properly filed.’” 	Wade v. Battle, 379 F.3d 1254, 1260 (11th Cir.
2004) 	(per 	curiam). 	Therefore, 	this 	Court 	must 	rely 	upon 	the
applicable 	laws 	and 	rules 	of 	Alabama 	to 	determine 	whether 	any 	of
Nobis, 	Habeas 	Corpus), 	applications, 	or 	motions 	with 	respect 	to
this 	judgment 	in 	any 	state 	court.” 	(Doc. 	5 	at 	3). 	However, 	the
record 	reflects 	that 	Cooley 	filed 	a 	pro 	se 	“Motion 	to 	Amend,
Modify, or Vacate Judgment of Sentence” on May 3, 2023, which the
circuit court denied on May 9, 2023. 	(Docs. 10-8, 10-9). 	He also
filed a pro se “Motion for Reconsideration of Split Sentence” and
a pro se “Motion for Resentencing” on September 29, 2023, both of
which the circuit court denied on October 3, 2023. 	(Docs. 10-10,
10-11). 	Cooley additionally filed a pro se “Motion: Alter, Amend
or 	Vacate 	Judgment 	of 	Sentence” 	on 	October 	19, 	2023, 	which 	the
circuit court denied on October 30, 2023. 	None of Cooley’s pro se
post-conviction 	motions 	was 	accompanied 	by 	a 	filing 	fee 	or 	by 	a
motion 	to 	proceed 	in 	forma 	pauperis. 	See
https://v2.alacourt.com/frmCaseDetail.aspx?Code=IztYsUPYee4lLWwT
k%2fLh%2f1Z7ZodiMU8JJy97GXhDi1MvHnwTp01%2bP%2b%2bcL1a7zKbu 	(last
visited Sept. 23, 2024).
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Cooley’s pro se post-conviction motions was “properly filed” under
§ 2244(d)(2).
“[A] Rule 32 petition in the court of conviction is the only
post-conviction 	petition 	allowed 	under 	Alabama 	law.” 	Averett 	v.
Estes, 	2018 	U.S. 	Dist. 	LEXIS 	110856, 	at 	*6 	n.2, 	2018 	WL 	3238675,
at *2 n.2 (N.D. Ala. July 3, 2018); see Ala. R. Crim. P. 32.4 (“A
proceeding 	under 	this 	rule 	displaces 	all 	post-trial 	remedies
except 	post-trial 	motions 	under 	Rule 	24 	and 	appeal. 	Any 	other
post-conviction 	petition 	seeking 	relief 	from 	a 	conviction 	or
sentence 	shall 	be 	treated 	as 	a 	proceeding 	under 	this 	rule.”).
“Alabama 	law 	requires 	that 	a 	Rule 	32 	petition 	‘be 	accompanied 	by
the 	filing 	fee 	prescribed 	by 	law 	or 	rule 	in 	civil 	cases 	in 	the
circuit court unless the petitioner applies for and is given leave
to 	prosecute 	the 	petition 	in 	forma 	pauperis.’” 	Smith 	v. 	Comm’r,
Alabama 	Dep’t 	of 	Corr., 	703 	F.3d 	1266, 	1270 	(11th 	Cir. 	2012)
(quoting 	Ala. 	R. 	Crim. 	P. 	32.6(a)). 	“Alabama 	courts 	have
unequivocally 	required 	that 	one 	of 	these 	formalities, 	either 	the
payment 	of 	the 	filing 	fee 	or 	the 	filing 	of 	an 	in 	forma 	pauperis
motion, 	be 	completed 	in 	order 	for 	a 	Rule 	32 	petition 	to 	be
considered properly filed.” 	Id.; see, e.g., Ex parte Carter, 807
So. 2d 534, 537 (Ala. 2001) (holding that “the circuit court never
had jurisdiction to rule on [inmate’s] Rule 32 petition” when the
inmate 	“never 	paid 	a 	filing 	fee, 	and 	the 	circuit 	court 	never
approved 	an 	in 	forma 	pauperis 	declaration 	for 	his 	Rule 	32
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petition”); Kister v. Jones, 2021 U.S. Dist. LEXIS 223426, at *11,
2021 WL 5411213, at *5 (N.D. Ala. Oct. 26, 2021) (“Alabama’s Rules
of Criminal Procedure provide two options for submitting a properly
filed 	petition 	for 	collateral 	review: 	(1) 	payment 	of 	‘the 	filing
fee prescribed by law or rule in civil cases in the circuit court’
or 	(2) 	‘leave 	to 	prosecute 	the 	petition 	in 	forma 	pauperis.’”)
(quoting 	Ala. 	R. 	Crim. 	P. 	32.6(a)), 	report 	and 	recommendation
adopted, 2021 U.S. Dist. LEXIS 222981, 2021 WL 5395910 (N.D. Ala.
Nov. 18, 2021).
As noted, Cooley filed several pro se post-conviction motions
in 	2023, 	but 	those 	motions 	were 	not 	accompanied 	by 	payment 	of 	a
filing 	fee 	or 	by 	a 	request 	to 	proceed 	in 	forma 	pauperis.
Consequently, 	Cooley’s 	motions 	were 	not 	“properly 	filed”
applications 	for 	state 	post-conviction 	relief 	for 	purposes 	of 	28
U.S.C. 	§ 	2244(d)(2), 	and 	they 	had 	no 	tolling 	impact 	on 	the 	one-
year limitation period. 	See, e.g., Robinson v. Carter, 2024 U.S.
Dist. 	LEXIS 	121980, 	at 	*10-11, 	2024 	WL 	3462417, 	at 	*4 	(S.D. 	Ala.
Apr. 22, 2024) (finding that “statutory tolling under § 2244(d)(2)
[was] 	inapplicable” 	where 	petitioner 	did 	not 	pay 	the 	filing 	fee
and was not granted IFP status to pursue his Rule 32 petition).
Thus, 	Cooley’s 	one-year 	limitation 	period 	began 	to 	run 	on
March 16, 2023, and it expired a year later, in March 2024. 	Cooley
did 	not 	file 	his 	initial 	federal 	habeas 	petition 	until 	June 	20,
2024, 	more 	than 	three 	months 	after 	the 	limitation 	period 	had
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expired. 	Moreover, 	even 	if 	Cooley’s 	initial 	petition 	had 	been
timely, 	none 	of 	the 	claims 	asserted 	in 	Cooley’s 	amended 	§ 	2254
habeas petition dated July 5, 2024, relate back to the generalized
Fourteenth Amendment claim asserted in the initial petition. 	See
Jenkins v. Greene, 646 F. Supp. 2d 615, 621 (S.D.N.Y. 2009) (noting
that 	for 	claims 	asserted 	in 	an 	amended 	habeas 	petition 	to 	relate
back to the original petition for statute of limitation purposes,
it 	is 	“insufficient 	for 	a 	newly 	asserted 	claim 	to 	simply 	derive
from 	the 	same 	trial, 	conviction, 	or 	sentence 	as 	those 	claims
asserted 	in 	the 	original 	petition” 	or 	“for 	an 	untimely 	amendment
merely 	to 	assert 	the 	same 	general 	type 	of 	legal 	claim 	as 	in 	the
original [habeas petition]”) (quotations omitted), aff’d, 630 F.3d
298 (2d Cir. 2010). 	Accordingly, Cooley’s claims are untimely and
barred by the statute of limitations, unless Cooley can demonstrate
that he is entitled to equitable tolling or make a credible showing
of actual innocence.
B. 	Equitable Tolling
Equitable tolling is available only where a petitioner “shows
‘(1) that he has been pursuing his rights diligently, and (2) that
some 	extraordinary 	circumstance 	stood 	in 	his 	way’ 	and 	prevented
timely 	filing.” 	Holland 	v. 	Florida, 	560 	U.S. 	631, 	649 	(2010)
(citation 	omitted). 	“Equitable 	tolling 	is 	an 	extraordinary
remedy, which is typically applied sparingly.” 	Steed v. Head, 219
F.3d 	1298, 	1300 	(11th 	Cir. 	2000). 	“The 	burden 	of 	proving
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circumstances 	that 	justify 	the 	application 	of 	the 	equitable
tolling doctrine rests squarely on the petitioner.” 	San Martin v.
McNeil, 	633 	F.3d 	1257, 	1268 	(11th 	Cir. 	2011). 	A 	petitioner’s
“allegations supporting equitable tolling must be specific and not
conclusory.” 	Hutchinson 	v. 	Florida, 	677 	F.3d 	1097, 	1099 	(11th
Cir. 2012).
Cooley 	appears 	to 	claim 	entitlement 	to 	equitable 	tolling
based 	on 	a 	bare 	allegation 	of 	“[i]neffective 	assistance 	of
counsel.” 	(See 	Doc. 	5 	at 	11). 	However, 	“[m]ere 	conclusory
allegations 	are 	insufficient 	to 	raise 	the 	issue 	of 	equitable
tolling.” 	San 	Martin, 	633 	F.3d 	at 	1268. 	To 	the 	extent 	Cooley’s
argument 	is 	based 	on 	his 	counsel’s 	alleged 	failure 	to 	inform 	him
of the time limits for filing a direct appeal or Rule 32 petition,
Cooley offers nothing to indicate that counsel’s alleged omissions
rose 	above 	the 	level 	of 	negligence. 	And 	“attorney 	negligence,
even gross or egregious negligence, does not by itself qualify as
an ‘extraordinary circumstance’ for purposes of equitable tolling
. . . .” 	Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1227 (11th
Cir. 	2017) 	(emphasis 	in 	original). 	Cooley 	also 	fails 	to 	show 	a
causal 	connection 	between 	his 	counsel’s 	omissions 	and 	his 	own
failure to file a federal habeas petition on time. 	In particular,
Cooley 	fails 	to 	explain 	how 	his 	attorney’s 	alleged 	failure 	to
advise 	him 	of 	state 	post-conviction 	deadlines 	prevented 	him 	from
timely 	filing 	a 	petition 	seeking 	federal 	habeas 	corpus 	relief.
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See, e.g., Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010)
(“Counsel’s failure to perfect an appeal simply meant that Randle
had 	one 	year 	from 	the 	expiration 	of 	his 	time 	to 	file 	a 	notice 	of
appeal 	in 	which 	to 	initiate 	a 	federal 	habeas 	action—it 	did 	not
prevent him from filing the [federal habeas] petition. 	Similarly,
counsel’s incorrect advice with respect to the time frame in which
to file a state habeas case did not prevent Randle from filing his
federal 	habeas 	petition 	on 	time.”) 	(emphasis 	in 	original); 	Couch
v. Talladega Cir. Cts., 2013 WL 3356908, at *4 (N.D. Ala. July 3,
2013) (“Alleged impediments to state post-conviction relief do not
constitute 	‘extraordinary 	circumstances’ 	that 	warrant 	equitable
tolling of the statute of limitations.”). 	Further, to the extent
Cooley’s petition can be read to suggest that equitable tolling is
warranted based on his general lack of understanding of the law or
its procedural requirements or deadlines, it is well-settled that
a prisoner’s pro se status and/or attendant lack of legal knowledge
do 	not 	constitute 	extraordinary 	circumstances 	sufficient 	to
warrant 	equitable 	tolling 	of 	the 	limitation 	period. 	See, 	e.g.,
Turner 	v. 	Boyd, 	2013 	WL 	6145539, 	at 	*2 	(M.D. 	Ala. 	Nov. 	21, 	2013)
(“[A]n inmate’s pro se status, lack of legal knowledge, failure to
understand 	legal 	principles, 	and 	failure 	to 	recognize 	potential
claims 	for 	relief 	at 	an 	earlier 	juncture 	do 	not 	constitute
extraordinary 	circumstances 	sufficient 	to 	warrant 	equitable
tolling 	of 	the 	limitation 	period.”). 	“As 	with 	any 	litigant, 	pro
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se 	litigants 	‘are 	deemed 	to 	know 	of 	the 	one-year 	statute 	of
limitations.’” 	Perez v. Florida, 519 F. App’x 995, 997 (11th Cir.
2013) (per curiam) (quoting Outler v. United States, 485 F.3d 1273,
1282 	n.4 	(11th 	Cir. 	2007)). 	In 	addition, 	Cooley 	has 	not
demonstrated 	that 	he 	exercised 	reasonable 	diligence 	in 	pursuing
his 	rights. 	Thus, 	Cooley 	has 	failed 	to 	establish 	any 	basis 	for
equitable tolling of the statutory limitation period.
C. 	Actual Innocence
A habeas petitioner’s actual innocence, if proved, may serve
as 	a 	gateway 	to 	consideration 	of 	constitutional 	claims 	otherwise
time-barred 	under 	§ 	2244(d)(1). 	McQuiggin 	v. 	Perkins, 	569 	U.S.
383, 	386 	(2013). 	To 	successfully 	assert 	actual 	innocence 	as 	a
gateway 	to 	review 	of 	time-barred 	claims, 	a 	habeas 	petitioner 	is
required “(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’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012)
(per 	curiam) 	(internal 	quotation 	marks 	and 	citations 	omitted).
This 	“standard 	is 	demanding 	and 	permits 	review 	only 	in 	the
‘extraordinary’ 	case.” 	House 	v. 	Bell, 	547 	U.S. 	518, 	538 	(2006)
(quoting 	Schlup 	v. 	Delo, 	513 	U.S. 	298, 	327 	(1995)). 	The 	actual
innocence 	gateway 	requires 	a 	petitioner 	to 	show 	“factual
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innocence, 	not 	mere 	legal 	insufficiency.” 	Bousley 	v. 	United
States, 523 U.S. 614, 623 (1998).
Cooley’s 	habeas 	petition 	makes 	no 	direct 	allegation, 	much
less 	a 	credible 	showing, 	of 	actual 	innocence. 	Therefore, 	the
actual 	innocence 	exception 	cannot 	serve 	as 	a 	gateway 	to
consideration of Cooley’s time-barred claims.
In 	summary, 	Cooley’s 	habeas 	petition 	is 	untimely 	filed, 	and
he has failed to demonstrate his entitlement to equitable tolling
or 	that 	is 	he 	actually 	innocent 	of 	the 	crimes 	for 	which 	he 	was
convicted. 	Accordingly, 	the 	undersigned 	recommends 	that 	the
instant habeas petition be dismissed as time-barred pursuant to §
2244(d)(1), and that judgment be entered in favor of Respondent.7
IV. 	CERTIFICATE OF APPEALABILITY
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	Section 	2254
Cases, 	“[t]he 	district 	court 	must 	issue 	or 	deny 	a 	certificate 	of
appealability 	when 	it 	enters 	a 	final 	order 	adverse 	to 	the
applicant.” 	Rules 	Governing 	§ 	2254 	Cases, 	R. 	11(a). 	The 	habeas
corpus statute makes clear that an applicant is entitled to appeal
a district court’s denial of his habeas corpus petition only where
a circuit justice or judge issues a certificate of appealability.
See 	28 	U.S.C. 	§ 	2253(c)(1). 	A 	certificate 	of 	appealability 	may
7 Because 	the 	Court 	finds 	that 	Cooley’s 	petition 	is 	time-barred,
it 	is 	not 	necessary 	to 	reach 	any 	other 	arguments 	raised 	by 	the
Respondent.
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issue only where “the applicant has made a substantial showing of
the denial of a constitutional right.” 	Id. at § 2253(c)(2).
Where, as here, a habeas petition is dismissed on procedural
grounds 	without 	reaching 	the 	merits 	of 	any 	underlying
constitutional claim, a certificate of appealability “should issue
[only] 	when 	the 	prisoner 	shows, 	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.” 	Slack 	v. 	McDaniel, 	529 	U.S. 	473, 	484
(2000). 	A 	prisoner 	seeking 	a 	certificate 	of 	appealability 	“must
prove something more than the absence of frivolity or the existence
of 	mere 	good 	faith 	on 	his 	or 	her 	part.” 	Miller-El 	v. 	Cockrell,
537 	U.S. 	322, 	338 	(2003) 	(quotations 	omitted). 	However, 	a
certificate of appealability “does not require a showing that the
appeal will succeed.” 	Id. at 337.
After 	reviewing 	the 	issues 	presented 	in 	light 	of 	the
applicable 	standards, 	the 	undersigned 	submits 	that 	reasonable
jurists 	would 	not 	conclude 	that 	this 	Court 	is 	in 	error 	in
dismissing the instant petition, or that Cooley should be allowed
to 	proceed 	further. 	See 	Slack, 	529 	U.S. 	at 	484 	(“Where 	a 	plain
procedural 	bar 	is 	present 	and 	the 	district 	court 	is 	correct 	to
invoke 	it 	to 	dispose 	of 	the 	case, 	a 	reasonable 	jurist 	could 	not
conclude 	either 	that 	the 	district 	court 	erred 	in 	dismissing 	the
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petition 	or 	that 	the 	petitioner 	should 	be 	allowed 	to 	proceed
further”). 	As 	a 	result, 	it 	is 	recommended 	that 	Cooley 	be 	DENIED
a 	certificate 	of 	appealability 	in 	conjunction 	with 	the 	dismissal
of the present § 2254 habeas petition.8
V. 	APPEAL IN FORMA PAUPERIS
“An 	appeal 	may 	not 	be 	taken 	in 	forma 	pauperis 	if 	the 	trial
court 	certifies 	in 	writing 	that 	it 	is 	not 	taken 	in 	good 	faith.”
28 U.S.C. § 1915(a)(3).
A 	party 	demonstrates 	good 	faith 	by 	seeking 	appellate
review of any issue that is not frivolous when examined
under 	an 	objective 	standard. 	See 	Coppedge 	v. 	United
States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed.
2d 	21 	(1962). 	An 	issue 	is 	frivolous 	when 	it 	appears
that 	“the 	legal 	theories 	are 	indisputably 	meritless.”
Carroll 	v. 	Gross, 	984 	F.2d 	392, 	393 	(11th 	Cir. 	1993)
(citations 	omitted). 	In 	other 	words, 	an 	IFP 	action 	is
frivolous, and thus not brought in good faith, if it is
“without 	arguable 	merit 	either 	in 	law 	or 	fact.” 	Bilal
v. 	Driver, 	251 	F.3d 	1346, 	1349 	(11th 	Cir. 	2001). 	More
specifically, 	“arguable 	means 	capable 	of 	being
convincingly 	argued.” 	Sun 	v. 	Forrester, 	939 	F.2d 	924,
925 (11th Cir. 1991) (internal quotations and citations
omitted). 	Nevertheless, where a “claim is arguable, but
ultimately 	will 	be 	unsuccessful,” 	it 	should 	be 	allowed
to proceed. 	Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d
8 Rule 	11(a) 	of 	the 	Rules 	Governing 	Section 	2254 	Cases 	provides
for 	the 	following 	procedure: 	“The 	district 	court 	must 	issue 	or
deny 	a 	certificate 	of 	appealability 	when 	it 	enters 	a 	final 	order
adverse 	to 	the 	applicant. 	Before 	entering 	the 	final 	order, 	the
court 	may 	direct 	the 	parties 	to 	submit 	arguments 	on 	whether 	a
certificate should issue.” 	Rules Governing § 2254 Cases, R. 11(a).
Accordingly, 	if 	there 	is 	an 	objection 	to 	this 	recommendation 	by
Cooley, he may bring his argument to the attention of the District
Judge 	in 	the 	objections 	permitted 	to 	this 	report 	and
recommendation. 	Should 	this 	Court 	deny 	a 	certificate 	of
appealability, 	Cooley 	“may 	not 	appeal 	the 	denial 	but 	may 	seek 	a
certificate 	from 	the 	court 	of 	appeals 	under 	Federal 	Rule 	of
Appellate Procedure 22.” 	Id.
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512, 515 (11th Cir. 1991).
Ghee 	v. 	Retailers 	Nat. 	Bank, 	271 	F. 	App’x 	858, 	859-60 	(11th 	Cir.
2008) (per curiam).
Considering this legal standard, and for the reasons outlined
above, it is recommended that the Court CERTIFY that any appeal by
Cooley 	of 	the 	dismissal 	of 	the 	present 	§ 	2254 	petition 	would 	be
without merit and therefore not taken in good faith, thus denying
him entitlement to appeal in forma pauperis.9
VI. 	CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	RECOMMENDS
that Cooley’s amended § 2254 habeas petition (Doc. 5) be DISMISSED
with 	prejudice 	as 	time-barred 	pursuant 	to 	§ 	2244(d)(1), 	and 	that
judgment be entered in favor of Respondent Warden David Lamar and
against 	Petitioner 	Cooley. 	The 	undersigned 	further 	RECOMMENDS
that 	Petitioner 	Cooley 	be 	DENIED 	a 	certificate 	of 	appealability,
and that the Court CERTIFY that any appeal by Petitioner Cooley of
the 	dismissal 	of 	the 	present 	§ 	2254 	habeas 	petition 	would 	be
without merit and therefore not taken in good faith, thus denying
him entitlement to appeal in forma pauperis.
9 Cooley 	may 	still 	file 	a 	motion 	to 	proceed 	in 	forma 	pauperis 	on
appeal 	with 	the 	Eleventh 	Circuit 	Court 	of 	Appeals 	in 	accordance
with Federal Rule of Appellate Procedure 24(a)(5).
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NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to 	this 	recommendation 	or 	anything 	in 	it 	must, 	within 	fourteen
(14) 	days 	of 	the 	date 	of 	service 	of 	this 	document, 	file 	specific
written objections with the Clerk of this Court. 	See 28 U.S.C. §
636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72(b); 	S.D. 	Ala. 	GenLR 	72(c). 	The
parties 	should 	note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a]
party 	failing 	to 	object 	to 	a 	magistrate 	judge’s 	findings 	or
recommendations 	contained 	in 	a 	report 	and 	recommendation 	in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to 	factual 	and 	legal 	conclusions 	if 	the 	party 	was
informed of the time period for objecting and the consequences on
appeal 	for 	failing 	to 	object. 	In 	the 	absence 	of 	a 	proper
objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 	11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific 	finding 	or 	recommendation 	to 	which 	objection 	is 	made,
state 	the 	basis 	for 	the 	objection, 	and 	specify 	the 	place 	in 	the
Magistrate 	Judge’s 	report 	and 	recommendation 	where 	the 	disputed
determination is found. 	An objection that merely incorporates by
reference 	or 	refers 	to 	the 	briefing 	done 	by 	the 	Magistrate 	Judge
is not specific.
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DONE this 18th day of October, 2024.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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