RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0058p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DANTE KEELING,
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Petitioner-Appellant,
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No. 09-4284
v.
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WARDEN, LEBANON CORRECTIONAL
Respondent-Appellee. -
INSTITUTION,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 08-00231—Michael R. Barrett, District Judge.
Argued: January 18, 2012
Decided and Filed: February 14, 2012*
Before: SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for
Appellant. William H. Lamb, OFFICE OF THE OHIO ATTORNEY GENERAL,
Cincinnati, Ohio, for Appellee. ON BRIEF: Blake P. Somers, BLAKE P. SOMERS
LLC, Cincinnati, Ohio, for Appellant. William H. Lamb, OFFICE OF THE OHIO
ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Dante Keeling appeals from the
dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
*
This decision was originally issued as an “unpublished decision” filed on February 14, 2012.
The court has now designated the opinion as one recommended for full-text publication.
1
No. 09-4284 Keeling v. Warden Page 2
district court dismissed Keeling’s petition, finding that it was barred by the one-year
statute of limitations set forth in 28 U.S.C. § 2244(d). Keeling challenges the district
court’s statute of limitations finding, the district court’s decision not to equitably toll the
statute of limitations, and the lack of an evidentiary hearing. For the following reasons,
we affirm.
I.
On March 28, 2001, Troy Davis was the victim of an armed robbery in
Cincinnati, which left Davis a paraplegic due to a gunshot wound to the back. During
a hospital interview shortly after the shooting, Davis described his assailant as a “black
male dressed in dark clothing, with a ‘lazy eye.’” Davis also indicated that he would be
able to identify his attacker. After receiving a tip in an unrelated arrest that Keeling was
responsible for shooting Davis, Cincinnati police presented a photographic array to
Davis who picked Keeling out as his assailant. Keeling was subsequently indicted for
aggravated robbery in violation of Ohio Revised Code § 2911.01(A)(1), robbery in
violation of Ohio Revised Code § 2911.02(A)(2), felonious assault in violation of Ohio
Revised Code §§ 2903.11(A)(1) and 2903.11(A)(2), and possession of cocaine in
violation of Ohio Revised Code § 2925.11(A). Firearm specifications accompanied the
aggravated robbery and felonious assault counts. Keeling pleaded guilty to cocaine
possession, and a jury found him guilty of the remaining charged counts. Keeling was
sentenced in the Hamilton County Court of Common Pleas on September 13, 2001, to
a total of twenty-one years and six months of imprisonment.
A.
Keeling thereafter pursued a direct appeal. In his initial brief, Keeling raised
three claims of error: ineffective assistance of counsel, prejudice due to the failure to
suppress the photographic array identification, and insufficient evidence. Keeling filed
a supplemental brief which raised seven additional claims of error. The Ohio Court of
Appeals affirmed the trial court judgment on June 28, 2002. Keeling did not file a
timely appeal of the Court of Appeals’s decision to the Ohio Supreme Court. However,
on March 6, 2008, almost six years after the Court of Appeals decision, Keeling filed a
No. 09-4284 Keeling v. Warden Page 3
pro se motion for leave to file a delayed appeal with the Ohio Supreme Court. In
support of his motion, Keeling asserted that his appellate counsel failed to provide him
with notice of the Court of Appeals’s decision and “by the time I had discovered that a
decision had been made, it was well past the 45 day period for filing the notice of
appeal.” The Ohio Supreme Court denied the motion and dismissed without opinion.
B.
Keeling also pursued post-conviction relief in the state courts. He first filed a
Rule 29 motion for acquittal/Rule 33 motion for a new trial on September 13, 2001. The
Court of Common Pleas denied the motion on September 19, 2001. Nearly four years
later, on June 20, 2005, Keeling filed a pro se Rule 32.1 motion for reconsideration of
sentence/motion for post-conviction relief pursuant to new constitutional ruling in light
of Blakely v. Washington, 542 U.S. 296, 301–02 (2004), which held that outside of the
fact of a prior conviction, any fact that increases the criminal penalty beyond the
statutory maximum must be found by a jury and proved beyond a reasonable doubt. On
June 24, 2005, the Court of Common Pleas denied Keeling’s motion for reconsideration
because under United States v. Booker, 543 U.S. 220, 268 (2005), Blakely does not apply
retroactively to cases not pending on direct review at the time Blakely was decided.
Keeling did not appeal this ruling.
In his final post-conviction attack on his sentence, Keeling filed a pro se motion
to correct unlawful sentence on June 26, 2006. Keeling argued that under Blakely and
State v. Foster, 845 N.E.2d 470 (Ohio 2006), the sentencing statute used to make the
judicial findings of fact necessary to exceed the maximum sentence for his aggravated
robbery conviction was unconstitutional in violation of the Sixth Amendment, and
therefore his sentence should be amended. The Court of Common Pleas denied the
motion on June 30, 2006. Keeling appealed this decision to the Ohio Court of Appeals.
The Court of Appeals affirmed on June 13, 2007. The Court of Appeals found that the
sole mechanism for collaterally challenging the validity of a criminal conviction or
sentence is pursuant to Ohio Revised Code § 2953.21, which provides that petitions
brought pursuant to section 2953.21(A)(1) must be brought within 180 days after the
No. 09-4284 Keeling v. Warden Page 4
date that the trial transcript is filed with the court of appeals in the direct appeal. See
also Ohio Rev. Code Ann. § 2953.21(A)(2). Because Keeling’s motion was filed in
2006, the Court of Appeals found that his motion was not timely. In addition, the court
found that the Court of Common Pleas did not have jurisdiction to consider Keeling’s
late challenge because Keeling failed to demonstrate that but for the alleged
constitutional violation, no reasonable factfinder would have found him guilty of the
offenses, as required under Ohio Rev. Code § 2953.23(A)(1)(b). Keeling then appealed
to the Ohio Supreme Court, which denied him leave to appeal and dismissed the appeal
as not involving any substantial constitutional question.
C.
After failing to obtain relief in the state courts, Keeling filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254. Keeling’s habeas petition was officially filed
with the district court on April 1, 2008. However, Keeling signed the petition on March
18, 2008, and asserts that he placed it in the prison mailing system on March 19, 2008.
Under the prison mailbox rule, a habeas petition is considered filed when the prisoner
provides the petition to prison officials for filing. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002) (citing Houston v. Lack, 487 U.S. 266, 273 (1988)). The magistrate
judge applied the prison mailbox rule to Keeling’s petition, crediting him with a March
19, 2008 filing date. Keeling’s petition asserted four grounds for relief: (1) ineffective
assistance of trial counsel for failing to present an expert witness to testify as to the
unreliable nature of eyewitness identifications and ineffective assistance of appellate
counsel for failing to provide notice of the Ohio Court of Appeals’s June 2002 decision
in a timely manner; (2) substantial and prejudicial error committed by the trial court
when it failed to suppress the photo identification of Keeling where he was the only one
in the line-up with a “defective” or lazy eye; (3) sufficiency of the evidence/manifest
weight of the evidence where the only evidence presented to convict was that of an
intoxicated eyewitness; and (4) void sentence under the Fifth, Sixth, and Fourteenth
Amendments and in violation of the due process right to notice of charges and
No. 09-4284 Keeling v. Warden Page 5
opportunity to be heard, as well as the right to proof beyond a reasonable doubt by jury
determination.
In response, the Warden filed a motion to dismiss arguing that because the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-
132, 110 Stat. 1214, governed Keeling’s petition, the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d) barred federal court review. Keeling, still proceeding pro
se, opposed the motion, arguing that equitable tolling should apply to his petition due to
the ineffective assistance of his appellate counsel. Keeling alleged that after he filed his
timely direct appeal to the Ohio Court of Appeals, his appointed appellate counsel
informed him that it would take “several years for the appeal and that [Keeling] should
just be patient.” Keeling asserted that he waited several years without hearing from his
counsel and then grew concerned when counsel would not take his calls in the early part
of February 2008. Keeling alleges that he then wrote to the Hamilton County court clerk
in order “to see if he could obtain a copy of the decision (because its attachment is a
prerequisite to filing a delayed appeal to the Supreme Court),” that he received a copy
of the decision on February 12, 2008, and that he then immediately began preparing for
his delayed appeal. The Warden moved for leave to file a sur-reply, alleging that
Keeling had introduced new matter in his opposition memorandum regarding equitable
tolling and the alleged mis-advice he received from his appellate counsel.
The magistrate judge issued a Report and Recommendation (“R&R”) on
February 12, 2009. The R&R concluded that Keeling’s petition was time-barred and that
equitable tolling was not warranted and recommended that the Warden’s motion to
dismiss be granted.
Keeling was given notice of the R&R and filed a motion requesting an extension
of time to file objections. The district court granted Keeling an additional forty-five
days to respond; thus any objections were due by April 16, 2009. Despite the extension
of time, Keeling failed to file timely objections to the R&R. On April 20, 2009, the
district court stated that, having reviewed the matter de novo, it found the magistrate
judge’s R&R to be correct, and adopted the R&R, dismissing Keeling’s petition with
No. 09-4284 Keeling v. Warden Page 6
prejudice. On April 21, 2009, Keeling’s second motion for extension of time—in which
Keeling requested a sixty day extension of time to file objections to the R&R on the
grounds that he was incarcerated, acting pro se, and the computers in his correctional
institution had been unusable for the prior six weeks—was docketed with the district
court. The district court denied the second motion on April 23, 2009. The court found
the motion untimely because it was mailed on April 17, 2009, and an extension of time
was unwarranted in light of the prior extension of time. The district court further found
that pro se litigants are not excused from adhering to “readily comprehended court
deadlines of which they are well-aware” and that nothing “prevented [Keeling] from
filing a handwritten motion for additional time.” The district court struck Keeling’s
objections, which were filed on May 14, 2009, from the record as improperly filed.
This court granted Keeling a certificate of appealability (“COA”) on July 12,
2010. Keeling timely appealed.
II.
Keeling requested habeas relief under 28 U.S.C. § 2254. The district court
exercised jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2241. This court has
jurisdiction to hear Keeling’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
The Warden challenges our jurisdiction to hear the appeal because the COA
issued by this court did not comply with AEDPA’s requirements. AEDPA requires that
a COA indicate the specific issue(s) in a habeas application that meet the statutory
burden set forth in 28 U.S.C. § 2253(c)(2), which requires “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §§ 2253(c)(2), (c)(3). The specific content
required to be included in a COA is set forth in section 2253(c)(3), which directs that
“[t]he certificate of appealability under paragraph (1) shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).” 28 U.S.C. § 2253(c)(3). The
Warden is correct that Keeling’s COA did not identify specific issues. However, the
Supreme Court’s recent opinion in Gonzalez v. Thaler, 132 S. Ct. 641 (2012), resolves
the issue in favor of jurisdiction. Gonzalez held that § 2253(c)(3)’s requirement is
mandatory but nonjurisdictional. Id. at 647–51.
No. 09-4284 Keeling v. Warden Page 7
III.
We review a district court’s dismissal of a habeas petition brought pursuant to
28 U.S.C. § 2254 de novo, but the district court’s factual findings are reviewed for clear
error. Hall v. Warden, 662 F.3d 745, 749 (6th Cir. 2011); Thompson v. Bell, 580 F.3d
423, 433 (6th Cir. 2009). Keeling filed his habeas petition in March 2008, so the
substantive and procedural standards set forth in AEDPA, which became effective on
April 24, 1996, govern our review.
IV.
A.
The Warden argues that because Keeling failed to file timely objections to the
R&R, he waived his chance to raise his arguments on appeal. This court has exercised
its supervisory powers to establish a general rule that failure to file objections to an R&R
waives appellate review of the district court judgment. See Thomas v. Arn, 474 U.S.
140, 142 (1985); Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011); United
States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981) (establishing rule that party’s
failure to object to magistrate’s report within specified time operates as waiver of
appeal). However, the general rule is procedural, it “‘is not a jurisdictional rule; the
court of appeals retains subject matter jurisdiction over the appeal regardless of the
untimely filing or nonfiling of objections.’” Cottenham v. Jamrog, 248 F. App’x 625,
631 (6th Cir. 2007) (quoting Kent v. Johnson, 821 F.2d 1220, 1222–23 (6th Cir. 1987)).
As a result, despite this general rule, the untimely filing of objections does not always
bar an appeal, as this court may excuse a default if exceptional circumstances are present
that justify disregarding the rule in the interests of justice. See Thomas, 474 U.S. at 155;
Alspaugh, 643 F.3d at 166 (internal quotation omitted). In addition, “[P]ro se ‘pleadings
are held to a less stringent standard than those prepared by an attorney.’” Alspaugh, 643
F.3d at 166 (quoting Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001)).
Here, the district court specifically noted that although the parties received notice
under 28 U.S.C. § 636(b)(1)(C) that further appeal would be waived if they failed to file
No. 09-4284 Keeling v. Warden Page 8
objections, no objections were timely filed. However, the district court then reviewed
the matter de novo and adopted the magistrate judge’s recommendations set forth in the
R&R. Although the district court could have resolved the matter on the grounds of
waiver, as could we, “because the district court chose to decide this issue on the merits,
we will review it on the merits as well.” See United States v. Robinson, 352 F. App’x
27, 28–29 (6th Cir. 2009); see also Zimmerman v. Cason, 354 F. App’x 228, 230 (6th
Cir. 2009).
B.
The district court found that Keeling’s petition was untimely and therefore barred
by AEDPA’s statute of limitations, 28 U.S.C. § 2244(d)(1), which states 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.” 28 U.S.C. § 2244(d)(1).
AEDPA’s statute of limitations begins to run from the latest of:
(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)(A)–(D). The one-year period of limitations is tolled during the
time that a “properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Keeling argues that the district court erred in its analysis of the effect his motion
for leave to file a delayed appeal before the Ohio Supreme Court had on the statute of
No. 09-4284 Keeling v. Warden Page 9
limitations for his habeas petition. The district court concluded that the motion had no
effect on its statute of limitations findings because the statute had already expired when
the motion was filed on March 6, 2008. Keeling contends that because he was still able
to move for a delayed appeal, his conviction was not yet final under section
2244(d)(1)(A), and thus the one-year limitations period had not yet begun to run.
Keeling argues that under Jimenez v. Quarterman, 555 U.S. 113 (2009), his conviction
was not final until his delayed appeal was resolved, which did not occur until the Ohio
Supreme Court denied his motion to file a delayed appeal. As a result, Keeling argues
that none of his claims are barred by the statute of limitations, because the statute of
limitations did not even begin to run on any of his claims until after the denial of his
motion in April 2008.
In Jimenez, the habeas petitioner was granted leave to file an out-of-time appeal
by the state court. 555 U.S. at 116. The state courts denied relief in that appeal and
additional state post-conviction proceedings. Id. Jimenez then filed a federal habeas
petition, which was dismissed by the district court as untimely under section
2244(d)(1)(A). Id. at 116–18. The Supreme Court found that Jimenez’s direct review
became final when his delayed appeal was resolved and the time for seeking certiorari
review in the Supreme Court expired, and not when his original appeal was dismissed
by the state courts, because the order granting the out-of-time appeal restored the
pendency of his direct appeal. Id. at 120–21. However, the Court stressed that its
holding was a “narrow one” and emphasized that it applied only “where a state court
grants a criminal defendant the right to file an out-of-time direct appeal during state
collateral review, but before the defendant has first sought federal habeas relief.” Id. at
121. Indeed, the Court noted that its decision did not address whether Jimenez would
have been able to timely seek federal habeas relief after the one-year statutory period
expired but before the state court granted his motion to reopen direct review. Id. at 120
n.4. The Court explained that such a petition would not be timely under section
2244(d)(1)(A) under its prior holding “that the possibility that a state court may reopen
direct review ‘does not render convictions and sentences that are no longer subject to
direct review nonfinal.’” Id. (emphasis added).
No. 09-4284 Keeling v. Warden Page 10
The Supreme Court’s recent decision in Gonzalez answers the question left
unaddressed in Jimenez and forecloses Keeling’s argument that the statute of limitations
did not even begin to run until after his motion for leave to file a delayed appeal was
denied by the Ohio Supreme Court. In Gonzalez, the Court considered when a judgment
becomes “final” for the purposes of §2244(d)(1)(A) if a petitioner “does not appeal to
the State’s highest court.” Gonzalez, 132 S. Ct. at 653. For purposes of determining the
finality of judgment, the Court found that § 2244(d)(1)(A) consists of two prongs—“the
‘conclusion of direct review and the expiration of the time for seeking such
review’—[each of which] relate[] to a distinct category of petitioners.” Id. The Court
explained that:
For petitioners who pursue direct review all the way up to this Court, the
judgment becomes final at the “conclusion of direct review”—when this
Court affirms a conviction on the merits or denies a petition for
certiorari. For all other petitioners, the judgment becomes final at the
“expiration of the time for seeking such review”—when the time for
pursuing direct review . . . in state court[] expires.
Id. at 653–54. Because Keeling failed to pursue direct review all the way to the Supreme
Court, his judgment became final at the expiration of the time for pursuing direct review
in state court. Id.
Analyzing when the statute of limitations began to run and the effect of any
applicable statutory tolling period for each of the claims in Keeling’s federal habeas
petition confirms that Keeling’s petition is untimely. In his direct appeal to the Ohio
Court of Appeals, Keeling raised the ineffective assistance of trial counsel claim asserted
in ground one of his petition; as well as ground two of his petition, which asserted that
the trial court erred by failing to suppress the identification from the photographic line-
up; and ground three of his petition, which asserted that there was insufficient evidence
to support his conviction. Because Keeling was aware of the factual predicate of those
claims at the time of his direct appeal, and the claims do not implicate sections
2244(d)(1)(B) or 2244(d)(1)(C), the one-year statute of limitations began to run on the
date that his judgment became final, at the expiration of the time for seeking direct
review. 28 U.S.C. § 2244(d)(1)(A); Gonzalez, 132 S. Ct. at 653–54. The Ohio Court
No. 09-4284 Keeling v. Warden Page 11
of Appeals affirmed Keeling’s conviction on June 28, 2002. Keeling had forty-five days
from the date of that decision to seek direct review before the Ohio Supreme Court. See
Ohio S. Ct. Prac. R. 2.2(A)(1)(a). Because Keeling did not seek further review of the
decision within the forty-five day period, the Court of Appeals judgment became final
on August 12, 2002. Thus, the statute of limitations began to run on these grounds on
August 13, 2002. See Fed. R. Civ. P. 6(a)(1) (“[I]n computing any time period . . .
exclude the day of the event that triggers the period.”); Bronaugh v. Ohio, 235 F.3d 280,
285 (6th Cir. 2000) (applying Rule 6(a) standards to computation of time for section
2244(d) statute of limitations purposes).
Section 2244(d)(2) provides for statutory tolling of the limitations period during
the pendency of properly filed motions for state post-conviction relief or other collateral
review. 28 U.S.C. § 2244(d)(2). But Keeling did not file any further post-conviction
motions until June 20, 2005, when he filed his pro se motion for reconsideration/motion
for post-conviction relief. At that time, the one-year statute of limitations period had
run; thus, statutory tolling did not apply and the statute of limitations for these claims
expired on August 13, 2003.
In ground four of his petition, Keeling asserts that his sentence is void due to a
constitutional error under the Apprendi/Blakely line of cases as well as under Foster, a
decision of the Ohio Supreme Court, because the sentencing court found facts that
increased his minimum sentence. Keeling argues that the sentencing court should not
have sentenced him to consecutive sentences unless the additional facts that increased
his penalty were proven beyond a reasonable doubt to a jury. At the time he was
sentenced, Keeling knew that he was receiving consecutive sentences, and thus he was
aware of the factual predicate of his claim. Thus, unless one of the other provisions of
section 2244(d) provided a later date for the statute of limitations to begin running, the
statute of limitations began to run on the date that the judgment became final. See 28
U.S.C. § 2244(d)(1). The same start date for the running of the statute of limitations that
was applied to the ineffective assistance of trial counsel claim in ground one, and to
grounds two and three therefore applies to this claim. Keeling does not argue that state
No. 09-4284 Keeling v. Warden Page 12
action prevented him from timely filing; thus section 2244(d)(1)(B) does not apply. Nor
can Keeling take advantage of section 2244(d)(1)(C), because Keeling has not identified
a new constitutional rule recognized by the Supreme Court and made retroactively
applicable to cases on collateral review. Apprendi v. New Jersey was decided on June
26, 2000, before Keeling’s conviction became final, and it therefore did not set forth a
new constitutional right. 530 U.S. 466 (2000). Blakely v. Washington, 542 U.S. 296
(2004), was decided on June 24, 2004—after the judgment in Keeling’s direct appeal
became final—and is not retroactively applied to cases that were not pending on direct
appeal at the time of the decision. See Humphress v. United States, 398 F.3d 855,
860–63 (6th Cir. 2005). Finally, Foster, a decision of the Ohio Supreme Court, is not
retroactively applied to cases that were not pending on direct review at the time of the
decision in 2006. State v. Foster, 845 N.E.2d 470, 499 (Ohio 2006). As a result, the
statute of limitations for ground four of the petition also started to run on August 13,
2002 and expired one year later, on August 13, 2003.
The start date for the running of the statute of limitations for Keeling’s claim of
ineffective assistance of appellate counsel based on his counsel’s alleged failure to
timely inform him of the Ohio Court of Appeals decision, asserted in ground one of his
petition, differs from the other claims because Keeling could not have been aware of the
factual predicate of the claim at the time that the Court of Appeals’s judgment became
final. Thus, the statute of limitations for this claim began to run when the factual
predicate for the claim became discoverable through the exercise of due diligence. See
28 U.S.C. § 2244(d)(1)(D). Although Keeling has not set forth a specific date upon
which he learned of the Court of Appeals decision, the record demonstrates that Keeling
knew of the decision prior to his June 20, 2005, pro se motion for reconsideration in
which he referred to the decision. Upon learning of the Court of Appeals’s decision in
his direct appeal, the factual predicate for Keeling’s ineffective assistance of appellate
counsel claim would clearly have been discoverable with due diligence, as the forty-five
day period for appealing to the Ohio Supreme Court had expired. Although Keeling
necessarily learned of the Court of Appeals decision prior to filing his June 20, 2005
motion to reconsider, starting the statute of limitations from the date—more favorable
No. 09-4284 Keeling v. Warden Page 13
to Keeling—that his motion was denied by the state court compels the conclusion that
Keeling’s ineffective assistance of appellate counsel claim is untimely under section
2244(d)(1)(D). Assuming that the statute of limitations began to run on June 25, 2005,1
three-hundred and sixty-six days elapsed before Keeling filed his motion to correct
unlawful sentence on June 26, 2006. Because the one year statute of limitations period
had already expired when Keeling filed the motion, statutory tolling does not apply. As
a result, Keeling’s claim of ineffective assistance of appellate counsel was also untimely,
and the motion for delayed appeal could not toll the already expired statute of
limitations. Thus, unless equitable tolling applies, Keeling’s habeas petition is time-
barred under § 2244.
C.
AEDPA’s limitations period is subject to equitable tolling. See Hall, 662 F.3d
at 749 (citing Holland v. Florida, 130 S. Ct. 2549, 2560 (2010)); Ata v. Scutt, 662 F.3d
736, 741 (6th Cir. 2011). Equitable tolling allows courts to review time-barred habeas
petitions “provided that ‘a litigant’s failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.’” Robinson v.
Easterling, 424 F. App’x 439, 442 (6th Cir. 2011) (quoting Robertson v. Simpson, 624
F.3d 781, 783 (6th Cir. 2010)). Both ineffective assistance of counsel and “a
substantial, involuntary delay in learning about the status of their appeals” may
constitute extraordinary circumstances sufficient to warrant relief. See id. Despite the
presence of such circumstances, the statute of limitations will only be tolled if the
circumstances were both beyond the control of the litigant and unavoidable with
reasonable diligence. Id. Thus, to demonstrate that he is entitled to equitable tolling, a
habeas petitioner must establish: (1) that he has diligently pursued his rights; and
1
The Court of Common Pleas order was signed on June 24, 2005. Thus, the limitations period
began to run one day after the date of disposition, June 25, 2005. See Fed. R. Civ. P. 6(a). The R&R used
the date of filing, June 27, 2005, as the date of disposition, and accordingly found that only three-hundred
and sixty-three days elapsed before the statute of limitations was tolled by Keeling’s filing of his motion
to correct unlawful sentence on June 26, 2006. As a result, the statute was tolled until the Ohio Supreme
Court concluded the appeal proceedings from the denial of the motion, with its October 24, 2007 order.
By the R&R’s calculation, the statute then began to run again on October 25, 2007, and expired two days
later, on October 27, 2007.
No. 09-4284 Keeling v. Warden Page 14
(2) “that some extraordinary circumstance stood in his way and prevented timely filing.”
Holland, 103 S. Ct. at 2562 (internal quotation marks omitted); see also Hall, 662 F.3d
at 749. Equitable tolling is granted sparingly and is evaluated on a case-by-case basis,
with the petitioner retaining the “ultimate burden of persuading the court that he or she
is entitled to equitable tolling.” Ata, 662 F.3d at 741.
Keeling argues that he is entitled to equitable tolling because he has diligently
pursued his rights with the exception of the almost three-year period between the Court
of Appeals’s June 28, 2002 decision in his direct appeal and when he filed his pro se,
post-conviction motion for reconsideration on June 23, 2005—a delay which he asserts
is attributable to the alleged failure of his appellate counsel to inform him of the Court
of Appeals’s decision. Keeling also argues that the failure of his appellate counsel to
inform him about the result of his appeal constituted an extraordinary circumstance that
prevented him from bringing his petition in a timely manner.2
Keeling’s equitable tolling argument is not well taken. Keeling has not
established that an extraordinary circumstance prevented him from filing a timely habeas
petition or that he has been reasonably diligent. In his pro se motion for reconsideration
of sentence/motion for post-conviction relief, filed June 20, 2005, Keeling referred to
the 2002 Court of Appeals’s decision affirming his conviction and sentence.3 In his
motion for leave to file a delayed appeal to the Ohio Supreme Court, Keeling explained
that he did not timely appeal the Court of Appeals’s decision because “my appeal
attorney failed to notify me of th[e] decision.” In his memorandum in opposition to the
Warden’s motion to dismiss, Keeling claimed for the first time that his delay was due
2
Keeling also submits that an analysis of the five factors from Dunlap v. United States, 250 F.3d
1001, 1008 (6th Cir. 2001), establishes that he is entitled to equitable tolling; however, this court has
adopted the two-part test set forth in Holland as the governing framework. Hall, 662 F.3d at 750 (“[W]e
conclude that Holland’s two-part test has replaced Dunlap’s five-factor inquiry as the governing
framework in this circuit for determining whether a habeas petitioner is entitled to equitable tolling.”); see
also Robinson, 424 F. App’x at 442 n.1. As a result, analysis of Keeling’s equitable tolling argument is
conducted under Holland’s two-part test.
3
Although Keeling inaccurately referred to the date of the decision as March 22, 2002, and the
length of the decision as eleven pages instead of the correct date of June 28, 2002, and length of fourteen
pages, Keeling used the correct appeal number (C-010610), indicating that by June 2005 he was aware of
the Court of Appeals’s decision.
No. 09-4284 Keeling v. Warden Page 15
to his attorney’s instruction to him that it “would take several years for the appeal and
that he should just be patient.” Keeling then asserted that after several years passed
without word from his appellate counsel, he became concerned, so in February 2008 he
attempted to obtain a copy of the decision so that he could file a motion for a delayed
appeal to the Ohio Supreme Court.
Keeling himself admits that he waited almost three years after the decision in his
original appeal to the Ohio Court of Appeals before filing his first pro se post-conviction
motion. “While this Court has recognized that attorney assurances and the realities of
incarceration may justifiably delay a petitioner’s request for a case status update, . . . this
Court has never granted equitable tolling to a petitioner who sat on his rights for a year
and a half.” Robinson, 424 F. App’x at 443. In Robinson, the petitioner requested case
updates from his attorney, who failed to provide them, and the petitioner waited eighteen
months between his last two update requests. Id. at 440–41, 443. This court found that
the petitioner failed to exercise the required diligence in pursuing his rights and affirmed
the district court decision declining to equitably toll the statute of limitations, even
though the petitioner’s attorney failed to inform him of the appellate decision for more
than one year after it issued. Id. at 440–43. Further, we have declined to allow equitable
tolling where a petitioner’s attorney misled him into believing that his appeal was still
pending before the state court because the petitioner failed to diligently monitor the
progress of his appeal. Winkfield v. Bagley, 66 F. App’x 578, 583–84 (6th Cir. 2003).
Similarly, this court has declined to equitably toll the statute of limitations where a
petitioner alleged that the state court and his attorney failed to inform him that a decision
had been rendered affirming his conviction. Elliott v. Dewitt, 10 F. App’x 311, 312–13
(6th Cir. 2001).
Here, Keeling’s delay exceeds that which has previously been found excessive
and inappropriate for the application of equitable tolling. See Robinson, 424 F. App’x
at 443. Keeling did not diligently monitor the status of his appeal. See Winkfield, 66 F.
App’x at 583–84; Elliott, 10 F. App’x at 313. Even after learning of the Court of
Appeals’s decision, Keeling did not diligently pursue his delayed appeal or file a timely
No. 09-4284 Keeling v. Warden Page 16
federal habeas petition. Despite Keeling’s argument to the contrary, he has not acted
with the sufficient diligence to warrant equitable tolling of the statute of limitations.
Finally, we note that Keeling’s pro se status and lack of knowledge of the law
are not sufficient to constitute an extraordinary circumstance and to excuse his late
filing. See Hall, 662 F.3d at 751–52; Winkfield, 66 F. App’x at 583.
D.
Keeling argues that the district court erred in failing to hold an evidentiary
hearing on his habeas petition to allow Keeling to fully present his claims for relief.
Keeling contends that he is entitled to a evidentiary hearing because his habeas petition
alleges sufficient grounds for release, there are relevant facts in dispute, and the state
courts failed to hold a full and fair evidentiary hearing by declining to hold any hearing
at all on his claims. The Warden argues in response that the district court did not err by
not conducting a hearing where Keeling did not request an evidentiary hearing, either
before the state courts or in his habeas petition, and the relevant facts relating to the
statute of limitations issues are not in dispute.
The district court did not err by not conducting an evidentiary hearing on
Keeling’s claims. Keeling does not appear to have requested an evidentiary hearing
before the district court; Keeling does not cite to or appeal from a denial of a request for
an evidentiary hearing by the district court. Cf. United States v. Montanez, 82 F.3d 520,
523 (1st Cir. 1996) (holding that defendant’s failure to request an evidentiary hearing in
district court largely disposed of his claim on appeal that the district court should have
given him one).
Even assuming that Keeling requested an evidentiary hearing, AEDPA restricts
the availability of federal evidentiary hearings. See Davis v. Lafler, 658 F.3d 525, 539
(6th Cir. 2011) (en banc) (Martin, J., concurring in part). For a claim that was
adjudicated on the merits in a state court proceeding, sections 2254(d)(1) and (d)(2) of
AEDPA apply, and the district court is limited to the record that was before the state
court at the time. See Pinholster, 131 S. Ct. at 1398; 28 U.S.C. § 2254(d)(2). If a claim
No. 09-4284 Keeling v. Warden Page 17
has not been adjudicated on the merits in a state court proceeding, 28 U.S.C.
§ 2254(e)(2) applies. This section provides:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
Id. “The requirements of Subsections (A) and (B) apply only if the petitioner ‘has failed
to develop the factual basis of a claim,’ § 2254(e)(2), only if in other words ‘there is a
lack of diligence, or some greater fault attributable to the prisoner or the prisoner’s
counsel[.]’” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 420, 432 (2000)). The Supreme Court has explained that “[d]iligence
will require in the usual case that the prisoner, at a minimum, seek an evidentiary
hearing in state court in the manner prescribed by state law.” Williams, 529 U.S. at 437.
With the exception of Keeling’s ineffective assistance of appellate counsel claim,
the grounds for relief in Keeling’s petition were adjudicated on the merits by the Ohio
state courts. As a result, in light of Cullen v. Pinholster, we are limited to the state court
record, and the district court did not err in failing to hold an evidentiary hearing on these
claims. See Jackson v. Lafler, No. 09-1771, 2011 WL 6382099, at *4 (6th Cir. Dec. 21,
2011); Robinson v. Howes, 663 F.3d 819, 823–24 (6th Cir. 2011).
Because Keeling’s ineffective assistance of appellate counsel claim was not
adjudicated on the merits in state court, the district court could not grant an evidentiary
hearing on the claim unless the requirements of 28 U.S.C. § 2254(e)(2) were satisfied.
No. 09-4284 Keeling v. Warden Page 18
See Robinson, 663 F.3d at 823. Keeling does not argue that a new constitutional rule
applied to his claim of ineffective assistance of appellate counsel, 28 U.S.C.
§ 2254(e)(2)(A)(i), or that the factual predicate of the claim was previously
undiscoverable with the exercise of due diligence, 28 U.S.C. § 2254(e)(2)(A)(ii), and
therefore he must demonstrate that he attempted to develop the factual basis for his
claims in state court with the requisite diligence. See Pinholster, 131 S. Ct. at 1400 n.4.
Keeling did not request an evidentiary hearing in state court, nor did he pursue the state
statutory methods that would provide the basis for an evidentiary hearing in state court.
Keeling essentially concedes this fact in a footnote in his brief, where he acknowledges
that he was “arguably require[d] . . . to have sought an evidentiary hearing on claims
previously presented” in state court, but then attempts to argue that “it is not fully clear
on the status of the record in this case that Mr. Keeling would have been entitled to a
hearing, even if one had been requested.” Keeling’s motion for reconsideration of
sentence/motion for post-conviction relief, filed on June 20, 2005 with the Hamilton
County Court of Common Pleas, did not request an evidentiary hearing. As a result,
Keeling fails to clear the initial hurdle posed by section 2254(e)(2) for his ineffective
assistance of appellate counsel claim, because he did not request an evidentiary hearing
in state court. Cf. Bowling v. Parker, 344 F.3d 487, 511–12 (6th Cir. 2003) (finding that
petitioner met burden of developing factual basis of claim imposed by section 2254(e)(2)
where he “repeatedly sought an evidentiary hearing in state court”).
V.
For the foregoing reasons, we affirm the judgment of the district court.