RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Vroman v. Brigano No. 02-3258 ELECTRONIC CITATION: 2003 FED App. 0338P (6th Cir.) File Name: 03a0338p.06 Appellant. Stephanie L. Watson, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ MARK VROMAN, X JULIA SMITH GIBBONS, Circuit Judge. Petitioner- Petitioner-Appellant, - appellant Mark Vroman was convicted on one count of - - No. 02-3258 murder with a firearm specification in Ohio state court. v. - Vroman appeals the district court’s dismissal of his petition > for a writ of habeas corpus as time-barred under the , applicable one-year statute of limitations set forth in the ANTHONY BRIGANO , Warden, - Respondent-Appellee. - Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). For the following reasons, N we affirm the judgment of the district court. Appeal from the United States District Court for the Southern District of Ohio at Columbus. I. No. 99-01277—Algenon L. Marbley, District Judge. On July 28, 1995, an Ohio jury convicted Vroman of Argued: August 1, 2003 murder with a firearm specification. He was sentenced to a term of fifteen years to life in prison for the murder Decided and Filed: September 22, 2003 conviction and a term of three years for the use of the firearm to be served consecutively with and prior to the murder Before: KENNEDY, GILMAN, and GIBBONS, Circuit sentence. Vroman appealed his conviction to the Ohio Court Judges. of Appeals, and on June 24, 1996, the court affirmed the judgment of the trial court. On December 18, 1996, the Ohio _________________ Supreme Court denied Vroman’s request for leave to appeal and dismissed the appeal as not involving any substantial COUNSEL constitutional question.

ARGUED: William R. Gallagher, ARENSTEIN & On August 11, 1997, Vroman filed a delayed application GALLAGHER, Cincinnati, Ohio, for Appellant. Stephanie for reopening his appeal pursuant to Ohio Appellate Rule L. Watson, OFFICE OF THE ATTORNEY GENERAL, 26(B), and the application was denied as untimely. Vroman CORRECTIONS LITIGATION SECTION, Columbus, Ohio, then filed a pro se appeal of the Ohio Court of Appeals’s for Appellee. ON BRIEF: William R. Gallagher, decision with the Ohio Supreme Court on October 31, 1997. ARENSTEIN & GALLAGHER, Cincinnati, Ohio, for The Ohio Supreme Court dismissed Vroman’s appeal.

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Prior to the above proceedings, on or about September 24, instant petition and whether Vroman is entitled to an 1996, Vroman filed a delayed petition to vacate or set aside evidentiary hearing to present evidence that his post- his sentence. The trial court denied this post-conviction conviction action was timely filed in state court. action as untimely on November 15, 1996. Vroman appealed and on April 15, 1997, the Ohio Court of Appeals affirmed II. the trial court’s judgment. On September 2, 1997, the Ohio Supreme Court dismissed Vroman’s subsequent appeal. The dismissal of a habeas petition by the district court as Finally, on November 12, 1997, Vroman filed a motion for barred by 28 U.S.C. § 2244’s statute of limitations is relief from judgment requesting that the trial court vacate its reviewed de novo. Cook v. Stegall, 295 F.3d 517, 519 (6th November 15, 1996, decision dismissing his post-conviction Cir.), cert. denied, 123 S.Ct. 699 (2002). Where the facts of action as untimely filed. On December 31, 1997, the trial the case are undisputed or the district court rules as a matter court denied Vroman’s motion. On December 10, 1998, the of law that equitable tolling is unavailable, this court reviews Ohio Court of Appeals affirmed the judgment of the trial the decision de novo. Dunlap v. United States, 250 F.3d court. The Ohio Supreme Court declined to hear the case and 1001, 1007 (6th Cir. 2001). dismissed Vroman’s appeal on April 21, 1999. Under AEDPA, a prisoner has one year from the On November 23, 1999, Vroman, acting pro se, filed a completion of the direct review of his case to commence a petition for writ of habeas corpus pursuant to 28 U.S.C. collateral attack on his conviction. 28 U.S.C. § 2244(d)(1). § 2254 in the United States District Court for the Southern This one year limitation period runs from the latest of: District of Ohio. In his habeas petition, Vroman alleged sixteen grounds for relief. The Warden, Anthony Brigano, (A) the date on which the judgment became final by the moved to dismiss the petition for failing to comply with the conclusion of direct review or the expiration of the time one-year statute of limitations imposed by 28 U.S.C. for seeking such review; § 2244(d). On March 19, 2001, the district court denied the (B) the date on which the impediment to filing an Warden’s motion to dismiss, concluding that Vroman’s application created by State action in violation of the untimely Ohio post-conviction petition tolled the running of Constitution or laws of the United States is removed, if the statute of limitations under § 2244(d)(2). The Warden the applicant was prevented from filing by such State moved for reconsideration and the district court denied the action; motion. Thereafter, the Warden filed a Return of Writ, and (C) the date on which the constitutional right asserted on December 17, 2001, the district court dismissed the was initially recognized by the Supreme Court, if the petition as time-barred due to the Sixth Circuit’s decision in right has been newly recognized by the Supreme Court Raglin v. Randle, No. 00-3322, 2001 WL 523530 (6th Cir. and made retroactively applicable to cases on collateral May 8, 2001). Vroman moved for reconsideration, and on review; or January 30, 2002, the district court denied his motion. (D) the date on which the factual predicate of the claim or claims presented could have been discovered through On February 26, 2002, Vroman filed a notice of appeal and the exercise of due diligence. an application for a certificate of appealability. The district court granted a certificate of appealability on the issues of Id. Vroman’s conviction became final on March 18, 1997, whether the statute of limitations expired prior to filing the ninety days after the Ohio Supreme Court dismissed his direct No. 02-3258 Vroman v. Brigano 5 6 Vroman v. Brigano No. 02-3258

appeal. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. which a sentence was imposed prior to September 21, 1995, 2000). Therefore, in the absence of any tolling, Vroman had were given a one-year grace period, and, therefore, Vroman’s until March 18, 1998, to file his habeas petition. deadline for filing any petition seeking post-conviction relief was September 21, 1996. Ohio Revised Code The AEDPA limitations period may be tolled for that § 2953.21(A)(2). Because that particular date fell on a period of time “during which a properly filed application for Saturday, the actual deadline was Monday, September 23, State post-conviction relief or other collateral review with 1996. Ohio Criminal Rule 45(A). respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added). “The tolling provision According to the Ohio trial court, Vroman’s post- does not, however, ‘revive’ the limitations period (i.e., restart conviction petition was filed on September 24, 1996, one day the clock at zero); it can only serve to pause a clock that has late. The Ohio trial court concluded that Vroman’s petition not yet fully run. Once the limitations period is expired, was not timely filed according to Ohio law. Vroman collateral petitions can no longer serve to avoid a statute of appealed, arguing that his petition was timely filed because he limitations.” Rashid v. Khulmann, 991 F. Supp. 254, 259 delivered the petition to prison authorities for mailing on (S.D.N.Y. 1998). September 19, 1996, within the applicable time limit (the “mailbox rule”). The appellate court rejected Vroman’s On August 11, 1997, during the relevant one-year period, argument, holding that “[a] filing is timely only if it is filed Vroman filed a delayed Ohio Appellate Rule 26(B) action and with the court within the appropriate time limits; the jailer a post-conviction petition. The petition was ultimately does not represent the court for filing purposes.” dismissed by the Ohio Supreme Court on January 21, 1998. Because Vroman filed the Rule 26(B) action 146 days after Vroman then moved for relief from judgment pursuant to his conviction became final, Vroman had 219 days remaining Ohio Civil Rule 60(B), arguing that the clerk of court actually of his AEDPA one-year statute of limitations as of received his petition on September 23, 1996, and, therefore, January 21, 1998. Therefore, Vroman must also receive his petition was timely. In support of his argument, Vroman tolling during the time his post-conviction action remained submitted two letters he wrote to the postmaster of the post pending in the state courts to prevent his habeas petition, filed office that delivers mail to the Ross County Clerk of Courts. on November 23, 1999, from being time barred. The postmaster made handwritten notes on the letters stating that mail is delivered to the courthouse at 12:30 p.m. on a Effective September 21, 1995, Ohio amended its post- daily basis, and that mail is never delivered prior to 9:00 a.m. conviction statute to include a time limitation period of 180 Vroman’s petition was stamped received on September 24, days from the date the criminal trial transcript is filed in the 1996, at 9:04 a.m. Therefore, Vroman claimed that his appellate court for direct review, subject to several petition was received by the clerk on September 23, but was exceptions.1 Ohio Revised Code § 2953.23(A). Cases in

1 Ohio Revised C ode § 29 53.2 3 permits the untimely filing of a petition for post-conviction relief if (1) the petitioner was unavo idably petitioner shows by clear and convincing evidence that no reasonable fact prevented from discovering the factual predicate of his claim, or (2) the finder would have fo und him guilty. V roman did not argue that his post- United States Supreme Co urt recognized a new federal or state right that conviction petition fell within either of these exceptions in state court and applies retroactively to persons in the petitioner’s situation and the doe s not argue that either exception ap plies on app eal to this court. No. 02-3258 Vroman v. Brigano 7 8 Vroman v. Brigano No. 02-3258

not stamped until September 24. The Ohio state courts issues of state procedural law.” Israfil, 276 F.3d at 771; see rejected Vroman’s argument. also Godfrey v. Beightler, No. 02-3499, 2002 WL 31805606, at *2 (6th Cir. Dec. 10, 2002) (stating that “federal courts In response to the Warden’s argument that Vroman’s defer to the state court’s interpretation of state filing habeas petition should be dismissed as time-barred, Vroman requirements”). In Israfil, the Sixth Circuit held that claimed the state courts had erroneously determined that his “[b]ecause state courts are the final authority on state law, post-conviction petition was untimely. The district court federal courts must accept a state court’s interpretation of its deferred to the state courts’ determination that the post- statutes and its rules of practice.” 276 F.3d at 771 (citations conviction petition was untimely, and, therefore, the district omitted). Therefore, the Israfil court concluded that the court concluded that Vroman’s habeas petition was time- district court properly deferred to the Ohio state court’s barred. finding as to whether the petitioner’s post-conviction motion had been submitted according to Ohio’s timeliness On appeal, Vroman argues that the district court erred in requirements. Id. at 771-72; see also Raglin, 2001 WL determining that the statute of limitations imposed by 523530, at *1 (holding that “untimely state collateral attacks § 2244(d) was not tolled by his state post-conviction filing are not properly filed and do not toll the statute of limitations” because his post-conviction petition was timely filed with the and therefore concluding that the petitioner’s post-conviction Ohio trial court. The United States Supreme Court has held petition did not toll the statute of limitations because it was that an application for post-conviction relief is “properly dismissed as untimely under Ohio law). Here, as in Israfil, filed” within the meaning of § 2244(d)(2) “when its delivery the district court properly concluded that Ohio’s and acceptance are in compliance with the applicable laws determination of whether Vroman’s post-conviction petition and rules governing filings. These usually prescribe, for was properly filed governs whether such action tolls the example, . . . the time limits upon its delivery.” Artuz v. statute of limitations under § 2244(d)(2). Bennett, 531 U.S. 4, 8 (2000). Similarly, this court has held that an application for post-conviction relief is “‘properly Vroman contends that the Ohio state courts’ conclusion that filed’ when its delivery and acceptance are in compliance his post-conviction petition was untimely is incorrect and an with the applicable laws and rules governing filings, e.g., . . . unreasonable determination based on the facts presented, and applicable time limits upon its delivery.” Israfil v. Russell, argues that this court should apply the federal mailbox rule to 276 F.3d 768, 771 (6th Cir. 2001), cert. denied, 122 S.Ct. his post-conviction filing. This court, however, does not 1985 (2002). function as an additional state appellate court reviewing state- court decisions on state law or procedure. Allen v. Morris, The timeliness of an Ohio prisoner’s post-conviction 845 F.2d 610, 614 (6th Cir. 1988). Federal courts are petition is governed by state statute. Ohio Revised Code obligated to accept as valid a state court’s interpretation of §§ 2953.21(A)(2) & 2953.23(A). According to the Ohio state law and rules of practice of that state. Duffell v. Dutton, Supreme Court, a pleading is considered filed on the day it is 785 F.2d 131, 133 (6th Cir. 1986). In Houston v. Lack, 487 filed with the court. State ex rel. Tyler v. Alexander, 52 Ohio U.S. 266, 270 (1988), the United States Supreme Court St.3d 84 (Ohio 1990). The Ohio courts concluded that adopted the mailbox rule in holding that when a prisoner is Vroman’s post-conviction petition was not timely filed under acting pro se, his notice of appeal is considered “filed” under Ohio law. “[F]ederal courts . . . defer to a state court’s federal law when he turns the petition over to the prison judgment on issues of state law and, more particularly, on authorities for mailing. The Ohio Supreme Court has No. 02-3258 Vroman v. Brigano 9 10 Vroman v. Brigano No. 02-3258

expressly rejected this rule. Tyler, 52 Ohio St.3d at 85; see extend limitations by even a single day.” Graham- also State v. Hansbro, No. 2001-CA-88, 2002 WL 1332297, Humphreys, 209 F.3d at 561. at *4 (Ohio Ct. App. June 14, 2002) (noting that Ohio courts have “rejected a ‘prison mail rule’”). In addition, the majority This court determines whether to equitably toll AEDPA’s of federal circuits to consider the issue have declined to statute of limitations using the five-factor test set forth in extend the mailbox rule to the determination of filing dates Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). See for state post-conviction applications. See Coleman v. Dunlap v. United States, 250 F.3d 1001, 1010 (6th Cir. 2001) Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120 (applying the five-factor test set forth in Andrews). Pursuant S.Ct. 1564 (2000); Adams v. LeMaster, 223 F.3d 1177, 1181 to Andrews, a court should consider: (1) the petitioner’s lack (10th Cir. 2000); Webster v. Moore, 199 F.3d 1256, 1258-59 of notice of the filing requirement; (2) the petitioner’s lack of (11th Cir. 2000). But see Anthony v. Cambra, 236 F.3d 568, constructive knowledge of the filing requirement; 575 (9th Cir. 2000) (noting that the Ninth Circuit holds that (3) diligence in pursuing one’s rights; (4) absence of prejudice the federal “mailbox rule applies with equal force to the filing to the respondent; and (5) the petitioner’s reasonableness in of state as well as federal petitions”). Accordingly, this court remaining ignorant of the legal requirement for filing his will not reconsider the Ohio state courts’ determination that claim. Id. at 1008. This list of factors is not necessarily Vroman’s post-conviction petition was untimely or apply the comprehensive, and not all factors are relevant in all cases. federal mailbox rule to the present case. Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002).

In the alternative, Vroman argues that the doctrine of In the present case, Vroman does not claim that he lacked equitable tolling should apply to his case. Vroman bears the either actual or constructive notice of the filing requirement. burden of demonstrating that he is entitled to equitable Where the litigant does not claim lack of knowledge or notice tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). of the filing requirement, this court’s inquiry is focused on The doctrine of equitable tolling is applied sparingly by examining his diligence in pursuing his rights and the federal courts. Graham-Humphreys v. Memphis Brooks reasonableness of his ignorance of the effect of his delay. See Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000). Andrews, 851 F.2d at 151. Vroman contends that he was “Typically, equitable tolling applies only when a litigant’s diligent in pursuing his rights because he claims that his post- failure to meet a legally-mandated deadline unavoidably arose conviction petition was actually filed on or before the from circumstances beyond that litigant’s control.” Id. at September 23, 1996, deadline. This argument, however, 560-61 (citations omitted). The United States Supreme Court focuses on Vroman’s diligence in pursuing his rights in Ohio has explained that “[w]e have allowed equitable tolling in state post-conviction proceedings.2 Vroman fails to address situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked 2 W ith regard to diligence in filing his state court post-conviction by his adversary’s misconduct into allowing the filing petition, as the district court noted, three months prior to the deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 September 23, 199 6, deadline, an Ohio ap pellate court expressly advised U.S. 89, 96 (1990). However, the Court has “generally been Vroman to present his claim of ineffective assistance of trial counsel in a much less forgiving . . . where the claimant failed to exercise petition for post conviction relief. The record does not contain any due diligence in preserving his legal rights.” Id. “Absent evidence providing an explanation for Vroman’s decision to delay three months in presenting this claim to the Ohio state courts. Therefore, the compelling equitable considerations, a court should not fact that Vroman waited to petition for post conviction relief three months No. 02-3258 Vroman v. Brigano 11 12 Vroman v. Brigano No. 02-3258

his lack of diligence in timely filing a petition for habeas tolling is identified. Andrews, 851 F.2d at 151. The final relief. While Vroman concentrates his argument on the fact factor is petitioner’s reasonableness in remaining ignorant of that at most his state filing was one day late, this court must the legal requirement for filing his claim. Vroman does not determine whether to equitably toll Vroman’s AEDPA statute argue that he was ignorant of the legal requirement for filing of limitations for more than one year. his claim. Accordingly, application of the five-factor test indicates that equitable tolling is not appropriate in this case. The Ohio trial court informed Vroman on November 15, 1996, that his September 24, 1996, petition was untimely. The district court denied Vroman’s request for an Therefore, when Vroman’s one-year federal habeas statute of evidentiary hearing without discussion. This court reviews a limitations began to run on March 17, 1997, Vroman knew district court’s decision whether to hold an evidentiary that he would not be entitled to toll the time period for his hearing for an abuse of discretion. See Lott v. Coyle, 261 September 24, 1996, petition unless he prevailed on appeal. F.3d 594, 602 (6th Cir. 2001). Under AEDPA, evidentiary Vroman’s appeal was denied by an Ohio appellate court on hearings are not mandatory. Instead, AEDPA contains April 15, 1997, thereby informing Vroman more than eleven express limitations on a federal court’s discretion to grant an months prior to his habeas filing deadline that the Ohio courts evidentiary hearing. The statute provides: did not consider his September 24, 1996, petition properly filed. Vroman’s decision to proceed solely to the Ohio (e)(2) If the applicant has failed to develop the factual Supreme Court, rather than filing his federal habeas petition basis of a claim in State court proceedings, the court shall and protecting his federal constitutional rights, demonstrates not hold an evidentiary hearing on the claim, unless the a lack of diligence.3 applicant shows that –

The fourth factor, whether respondent was prejudiced by (A) the claim relies on: the delay in filing, is irrelevant here. Absence of prejudice is a factor to be considered only after a factor that might justify (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or after being advised to do so demonstrates a lack of diligence in pursuing (ii) a factual predicate that could not have been his rights. previously discovered through the exercise of due 3 diligence; and In support of his claim that he is entitled to equitable tolling, Vroman relies on this court’s unpublished Rule 34(j) order in White v. Curtis, No. 01-1493, 2002 WL 1752272 (6th Cir. July 26, 2002 ). In (B) the facts underlying the claim would be Wh ite, this court held that equitable to lling app lied to the petitioner’s sufficient to establish by clear and convincing federal habe as petition where the p etitioner’s direct appeal to the evidence that but for constitutional error, no Michigan Supreme Court would have been timely under the federal reasonable fact-finder would have found the mailbox rule. Id. Apart from the question of whether White was co rrectly applicant guilty of the underlying offense. decided, application of the Andrews factors requires an individualized examination of each petitioner’s showing with respect to his diligence and knowledge. W hite, whose habeas petition was filed eighteen days late, 28 U.S.C. § 2254(e). If the petitioner has not failed to displayed far more diligence than Vroman, who filed his habeas petition develop the factual basis of a claim in state court, the federal over one year after the applicable deadline. No. 02-3258 Vroman v. Brigano 13

court may hold a hearing if the petitioner’s factual allegations, if proved, would entitle him to relief. See Byrd v. Collins, 209 F.3d 486, 550 (6th Cir. 2000) (citing McMillan v. Barksdale, 823 F.2d 981, 983-84 (6th Cir. 1987)); Rector v. Johnson, 120 F.3d 551, 562-63 (5th Cir. 1997) (“[A] federal habeas court must allow discovery and an evidentiary hearing only where a factual dispute, if resolved in the petitioner’s favor, would entitle him to relief and the state has not afforded the petitioner a full and fair evidentiary hearing.”). AEDPA addresses state prisoners’ federal constitutional claims. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). Therefore, any reference to a “claim” in AEDPA is to a federal constitutional claim. AEDPA thus permits evidentiary hearings regarding federal constitutional claims under limited circumstances as set forth in the statute. While Vroman’s habeas petition sets forth federal constitutional claims, he seeks an evidentiary hearing on a state procedural law issue. Specifically, he requests that the district court allow him to submit evidence to conclusively prove the state court ruling that his post-conviction petition was untimely was unreasonable in light of the facts presented to it. Vroman does not request an evidentiary hearing to allow him to present evidence regarding a federal constitutional claim. Instead, Vroman seeks to revisit the Ohio state courts’ determination that he failed to comply with Ohio law regarding time limits for filing a post-conviction petition. As previously discussed, state courts are the final authority on state law and federal courts must accept a state court’s interpretation of its rules of practice. Israfil, 276 F.3d at 771. Accordingly, the district court did not abuse its discretion in denying Vroman’s request for an evidentiary hearing. III. For all of the foregoing reasons, we affirm the district court’s dismissal of the petition.