NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0465n.06
No. 14-4279
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Aug 12, 2016
DEBORAH S. HUNT, Clerk
CHARLES SHORTER,
Petitioner-Appellant,
v.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
RHONDA RICHARD,
SOUTHERN DISTRICT OF OHIO
Respondent-Appellee.
BEFORE: KEITH, CLAY, and WHITE, Circuit Judges.
CLAY, Circuit Judge. Petitioner Charles Shorter appeals the final judgment of the
district court denying him a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons
that follow, we AFFIRM the denial of the writ.
BACKGROUND
Factual Background
On November 13, 2008, Petitioner Charles Shorter pled guilty to one count of murder
with a three-year firearm specification, one count of having weapons under disability, and one
count of evidence tampering. Petitioner had apparently negotiated his sentence with state
prosecutors, and at the plea hearing, the trial court indicated that it would agree to Petitioner’s
request, to which the prosecution did not object, to grant community control sanctions to a co-
defendant. After the trial court accepted Petitioner’s guilty plea, Petitioner’s counsel engaged in
the following colloquy with the trial court:
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[DEFENDANT’S COUNSEL]: I would also ask the Court to remind my client
that there have been various motions and rulings made by the Court during these
proceedings, and thereby, entering the guilty pleas, those -- there are no appeal
issues there.
THE COURT: Right. That is correct, Mr. Shorter. By entering a plea of guilty,
that will eliminate any and all grounds for appeal that may exist regarding
previous rulings I have made; do you understand that, sir?
THE DEFENDANT: Yes.
(Hearing Tr. at 24.) The court did not advise Petitioner of his appellate rights under Ohio law at
any point in the hearing. Although the plea entry form listed several constitutional rights that
Petitioner waived by entering a guilty plea, it made no mention of Petitioner’s right to appeal his
sentence. Defendant was sentenced to eighteen years to life in prison. The termination entry
was filed on November 17, 2008.
In response to a letter from Petitioner, Petitioner’s trial counsel sent a letter dated
December 8, 2008 that obliquely addressed appellate rights, among other issues:
You would be entitled to get a free transcript of all hearings if there was an appeal
due to your indigency. Please keep in mind that you entered into an agreed
sentence with your special and unique request regarding Joy’s case. One possible
error you could allege for an appeal is whether your guilty plea was involuntary,
an unlikely scenario. If you would be able to get your plea set aside, you would
agaim [sic] face the possibility of the maximum sentence of all charges that do not
merge and also put [your co-defendant’s] community control at risk and force her
to testify against you.
I hope this letter answers your questions and fulfills your requests. Thank you.
(R. 12, Ex. to Resp. to Mot. to Dismiss at Page ID 179.) The record does not show any further
communication between Petitioner and his counsel regarding an appeal.
In November 2013, Petitioner filed a notice of direct appeal pursuant to Ohio R. App.
4(A) and a motion for leave to seek delayed appeal pursuant to Ohio R. App. 5(A). In the Rule
5(A) motion for delayed appeal, Petitioner argued at length that his appeal should be heard, but
did not state what grounds he would assert if the appeal were granted. Petitioner attached an
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affidavit to this motion claiming that he had learned of his right to appeal only after speaking
with a fellow inmate on October 28, 2013. The Ohio Court of Appeals denied Petitioner’s
request for a delayed appeal in an unreasoned decision on December 23, 2013. Although
Petitioner appealed the denial, the Ohio Supreme Court declined to accept jurisdiction on May
14, 2014.
Procedural History
On July 10, 2014, Petitioner filed a pro se habeas petition in the United States District
Court for the Southern District of Ohio alleging the following two grounds for relief, both of
which he had included in his brief to the Ohio Supreme Court:
GROUND ONE: Petitioner was denied due process and equal protection of the
law, when the trial court did not inform him of his appellate rights and his
subsequent application for leave to file a delayed appeal was denied, in violation
of the Fourteenth Amendment to the United States Constitution.
GROUND TWO: Petitioner was denied effective assistance of trial counsel when
counsel failed to ensure that petitioner was properly instructed as to his right to
appeal, and fails [sic] to ensure that a timely notice of appeal is filed, and
petitioner was denied the effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution.
(R. 3, Habeas Petition at Page ID 39, 46.) Respondent moved to dismiss the habeas petition,
arguing that the petition was untimely, and that his claims were not cognizable on federal habeas
review and/or procedurally defaulted. The second report and recommendation issued by the
magistrate judge concluded that because Petitioner was not diligent in pursuing his appellate
rights, he could not qualify for a delayed start date of the one-year statute of limitations under the
Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1), and recommended
denying relief. The district court adopted the report and recommendation in full, and denied a
certificate of appealability.
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After Petitioner timely appealed, this Court initially granted a certificate of appealability
on whether the Ohio Court of Appeals unconstitutionally denied his motion for leave to file a
delayed appeal, and denied a certificate of appealability as to his ineffective assistance of counsel
claim. This Court’s order stated that the district court had concluded that Petitioner’s delayed
appeal claim was timely. Respondent moved for reconsideration, and the certificate of
appealability was expanded to include whether the claim challenging the denial of his delayed
appeal was timely filed.
DISCUSSION
Standard of Review
We review de novo the district court’s conclusions regarding the timeliness of a habeas
petition. DiCenzi v. Rose, 452 F.3d 465, 467 (6th Cir. 2006). The Anti-Terrorism and Effective
Death Penalty Act (AEDPA) imposes a one-year statute of limitations for those in custody
pursuant to a state court judgment, which begins running from the latest of the following:
(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).
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Analysis
Although the trial court’s failure to notify Petitioner of his appellate rights under Ohio
law set the stage for this habeas case, our inquiry today concerns the actions not of the trial court,
but of the Ohio Court of Appeals—and of Petitioner himself. Roughly five years after his
sentencing—and nearly as long after receiving a letter describing possible grounds for an
appeal—Petitioner filed a motion for delayed direct appeal to the Ohio Court of Appeals. After
the thirty-day period for filing a direct appeal, Rule 5(A) allows criminal defendants to bring an
appeal “with leave of the court to which the appeal is taken.” Ohio R. App. 5(A). In general, a
defendant seeking a delayed appeal pursuant to Rule 5(A) must demonstrate cause for both the
delay itself, and the length of delay. Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011). Ohio
places no time limit on bringing such motions. See Board v. Bradshaw, 805 F.3d 769, 773 (6th
Cir. 2015).
The parties dispute whether Petitioner’s habeas claim challenging the denial of the direct
appeal was timely under AEDPA’s one-year statute of limitations. Relying on this Court’s
decision in DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), Petitioner argues that his habeas claim
challenging the Ohio appellate court’s denial of his appeal accrued when the court denied his
appeal, and he is therefore entitled to a later start date of the AEDPA statute of limitations
pursuant to § 2244(d)(1)(D). Respondent replies that under Johnson v. United States, 544 U.S.
295 (2005), Petitioner cannot avail himself of a delayed start to the limitations period because he
did not show due diligence in seeking a delayed direct appeal.
By its terms, section 2244(d)(1)(D) “requires diligence.” McQuiggin v. Perkins, 133 S.
Ct. 1924, 1933 (2013). The Supreme Court has cautioned against reading this requirement “out
of the statute.” Johnson, 544 U.S. at 310. Johnson concerned whether the petitioner could avail
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himself of a delayed accrual date under § 2255(f)(4), the similarly worded analog to §
2244(d)(1)(D) applicable to federal convictions, where a petitioner waited over three years to
return to state court to attempt to vacate a state conviction that had supported an enhanced
federal sentence. 544 U.S. 295. The Supreme Court ruled that although the petitioner had filed
his federal habeas petition within one year of the state court’s vacatur order, the petition was
nonetheless untimely because AEDPA “allows the fact of the state-court order to set the 1–year
period running only if the petitioner has shown due diligence in seeking the order,” which it
deemed the petitioner not to have done. Id. at 302.
Emphasizing the petitioner’s role in bringing about the vacatur order, the majority held
that “[t]he requirement of due diligence must therefore demand something more than the
dissent’s willingness to accept no diligence at all.” Id. at 309. It continued:
Where one “discovers” a fact that one has helped to generate, however, whether it
be the result of a court proceeding or of some other process begun at the
petitioner’s behest, it does not strain logic to treat required diligence in the
“discovery” of that fact as entailing diligence in the steps necessary for the
existence of that fact.
Id. at 310 (internal citations omitted). The Court expressly rejected the petitioner’s arguments,
comparable to those advanced by Petitioner here, that he was acting pro se and had sought
vacatur immediately upon receiving help from an inmate law clerk. Id. at 301, 311. In the final
section of the opinion, the majority subjected the petitioner to a reasonableness test, holding that
he had “delayed unreasonably” and that “on this record . . . [the petitioner] fell far short of
reasonable diligence.” Id. at 311.
Like this case, DiCenzi v. Rose, which postdated but did not cite or discuss Johnson,
involved an Ohio defendant who pled guilty but was not notified of his right to appeal at
sentencing. 452 F.3d 465. Two years later, after he had filed motions for judicial release and to
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merge his convictions, he contacted a public defender, who informed him of his right to appeal;
immediately thereafter, he filed a motion for delayed appeal, which the Ohio Court of Appeals
denied. Id. at 467. The petitioner subsequently sought federal habeas relief pursuant to 28
U.S.C. § 2254 alleging, among other things, that the Ohio Court of Appeals had
unconstitutionally denied his request to file a delayed appeal. Id. DiCenzi discussed the accrual
date of the claim related to the denial of appeal in the briefest of terms:
This claim accrued when the Court of Appeals for Cuyahoga County denied
DiCenzi’s motion for delayed appeal, on September 25, 2001. Therefore, under
28 U.S.C. § 2244(d)(1), the AEDPA “clock” began running on September 25,
2001. See 28 U.S.C. § 2244(d)(1)(D) (initiating the one-year AEDPA
requirement on the date upon which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence).
Id. at 468. The citation to § 2244(d)(1)(D) and the parenthetical mention of due diligence
suggest that the DiCenzi court considered due diligence in seeking delayed appeals; whatever the
due diligence inquiry for appeal-based claims, it appears to have been satisfied on the facts of
that case.
Reading DiCenzi for the proposition that appeal-based claims entail no diligence inquiry,
as Petitioner seems to do, likely misconstrues that case, and certainly misconstrues the statute, to
which we are obliged to give full effect. Section 2244(d)(1)(D) allows a delayed accrual date
beginning with “the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence” (emphasis added). Johnson requires
this Court to give meaning to the latter part of this clause, subjecting a petitioner to a duty of
reasonable diligence in pursuing appeals as well as attacking sentences directly. See 544 U.S. at
310–11. With respect to Petitioner’s delayed appeal claim, the factual predicate was the Ohio
Court of Appeals’ declining to hear his delayed direct appeal, and Petitioner indeed filed a
habeas petition within a year of that denial. However, it is not at all clear whether that denial
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could have come sooner. The burden of showing due diligence rests with the petitioner.
McSwain v. Davis, 287 F. App’x 450, 454–55 (6th Cir. 2008).
In this case, Petitioner’s sentencing—at which the district court failed to notify him of his
appellate rights under Ohio law—triggered the duty of due diligence. Petitioner has given no
explanation for the five-year delay in filing a Rule 5(A) motion, and has not mentioned anything
he did to inquire about his potential appellate rights—after receiving the 2008 letter from his
lawyer in mentioning the possibility of an appeal—save attach an affidavit claiming that he first
learned of the possibility of appeal in 2013 from another inmate. For his petition to be timely,
Petitioner would have to convince this Court that a duly diligent person in his circumstances
would have delayed a full five years in filing his motion for direct appeal. See Johnson, 544 U.S.
at 310–11. We agree with the district court that on this record, Petitioner did not meet his burden
of demonstrating due diligence to discover his appellate rights in the five-year period between
his sentencing (and receiving the letter from his attorney), and the conversation with a fellow
inmate in 2013 that spurred Petitioner’s motion for delayed appeal. We therefore decline to
reach the merits of Petitioner’s claim.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief.
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HELENE N. WHITE, Circuit Judge, concurring in the judgment. DiCenzi v. Rose
addressed the same delayed-appeal claim that Shorter raises here and held that the AEDPA clock
begins to run on this claim at the time the Ohio Court of Appeals denies the motion for delayed
appeal. 452 F.3d 465, 468 (6th Cir. 2006). The majority distinguishes DiCenzi by suggesting
that the DiCenzi panel considered the petitioner’s due diligence in seeking his delayed appeal.
Maj. Op. at 7. But DiCenzi held that the delayed-appeal claim accrued when the Ohio Court of
Appeals denied the petitioner’s motion for delayed appeal without reference to the petitioner’s
diligence in filing the motion. 452 F.3d at 468. Further, the majority’s suggestion contradicts
DiCenzi’s explanation addressing the petitioner’s other claims. When reviewing the timeliness
of those claims, the court concluded that it could not find, based on the record, that the petitioner
was diligent in bringing his delayed appeal, and accordingly remanded to the district court to
determine whether the petitioner was diligent in pursuing his appeal rights. See DiCenzi,
452 F.3d at 470 (“In the instant case, the district court simply did not develop a record as to
whether DiCenzi was duly diligent for statutory purposes.”); id. at 471 (“[W]e can only speculate
whether DiCenzi exercised due diligence.”); id. (remanding to determine when the petitioner
“first learned of his right to appeal” and when he could be “reasonably expected to learn of his
appeal rights”). Although Johnson admittedly casts some doubt on the soundness of DiCenzi’s
categorical holding that the § 2244(d)(1) clock begins to run on delayed-appeal claims upon the
denial of the motion for delayed appeal, DiCenzi remains binding on this panel. See United
States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016). Bound by DiCenzi, I would find Shorter’s
delayed-appeal claim timely. Nevertheless, I concur in the judgment because Shorter’s claim
fails on the merits.
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The Ohio Court of Appeals denied Shorter’s motion for delayed appeal without
explanation. Shorter then appealed to the Ohio Supreme Court, arguing that the denial of his
motion for delayed appeal was unconstitutional because he was not informed and was unaware
of his appeal rights. The Ohio Supreme Court declined to accept jurisdiction without
explanation. Giving Shorter the benefit of doubt whether the Ohio Supreme Court’s decision
rested on an independent and adequate state procedural bar, see Lovins v. Parker, 712 F.3d 283,
296 (6th Cir. 2013), and assuming the Ohio Supreme Court denied Shorter’s claim on the merits,
the denial is not an unreasonable application of clearly established federal law. The state argued
in response to Shorter’s motion for delayed appeal that Shorter was not unaware of his appeal
rights, and pointed out that Shorter had requested judicial release and modification of his
sentences in previous cases where Shorter had pled guilty. The government also noted that
Shorter was college educated and was represented by experienced counsel. Further, in response
to inquiries from Shorter shortly after his guilty plea, Shorter’s counsel informed him that he had
at least one ground for appeal—that his guilty plea was not knowing and voluntary. Thus, there
is evidence in the record suggesting that Shorter knew that he could appeal.
The United States Supreme Court has held that a defendant’s habeas claim based on not
being informed of his appellate rights in violation of Federal Rule of Criminal Procedure 32 fails
if he otherwise had knowledge of his appeal rights. Peguero v. United States, 526 U.S. 23, 29-30
(1999). Here, there is evidence that Shorter was informed by counsel of his appeal rights. 1 The
1
Ohio law, similar to the federal rules, requires that the trial court inform the defendant of his
right to appeal his conviction after “imposing sentence in a serious offense that has gone to trial,” Ohio
Crim. R. 32 (B)(1), but notice of appellate rights is not always mandatory after a guilty plea, as in
Shorter’s case, see Ohio Crim. R. 32(B)(2) (“After imposing sentence in a serious offense, the court shall
advise the defendant of the defendant’s right, where applicable, to appeal or to seek leave to appeal the
sentence imposed.”). Shorter’s sentence is not subject to appellate review because Ohio law specifically
prohibits an appeal of a sentence where the defendant pleads guilty and receives a sentence that is jointly
recommended, as here. See Ohio Rev. Code § 2953.08(D)(1).
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Ohio courts’ denial of Shorter’s delayed appeal premised on the trial court’s failure to inform
him of his appellate rights therefore was not an unreasonable application of clearly established
federal law.
Accordingly, I concur in the judgment.
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