                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 06a0041n.06
                                  Filed: January 13, 2006

                                            No. 05-1358

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



DONALD PAUL BOLTON,                            )
                                               )       ON APPEAL FROM THE UNITED
       Petitioner-Appellant,                   )       STATES DISTRICT COURT FOR THE
                                               )       WESTERN DISTRICT OF MICHIGAN
       v.                                      )
                                               )
MARY BERGHUIS,                                 )
                                               )
       Respondent-Appellee.                    )




       BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge.*

       OLIVER, District Judge: Petitioner-Appellant Donald Bolton (“Appellant” or “Bolton”)

appeals the district court’s dismissal of his petition for writ of habeas corpus. Bolton was convicted

in 1993, for assault with intent to murder a police officer, and sentenced to life imprisonment. The

district court dismissed the petition as untimely and refused to equitably toll the limitations period.

For the reasons stated below, the judgment of the district court is affirmed.

                          I. FACTS AND PROCEDURAL HISTORY

                     A. State Conviction and Post Conviction Proceedings

       A Michigan state court jury convicted Bolton of assault with intent to murder a police officer



       *
               The Honorable Solomon Oliver, Jr., United States District Judge for the Northern
               District of Ohio, sitting by designation.
in 1993, along with six other crimes. Bolton was sentenced to life imprisonment. The Michigan

Court of Appeals affirmed the conviction on July 25, 1995. People v. Bolton, No. 165706 (Mich

Ct. App. July 25, 1995). The Michigan Supreme Court denied leave to appeal on May 31, 1996.

Bolton did not seek a writ of certiorari from the United States Supreme Court.

       Over two and one-half years later, in January 1999, Bolton filed a post-conviction motion

in the Michigan trial court, asserting ineffective assistance of his trial counsel. The basis for the

claim was that Bolton’s trial counsel was a volunteer member of the Kalamazoo County Sheriff’s

Mounted Division, and thus was under a conflict of interest in defending Bolton, who had been

charged with assaulting a police officer. The post-conviction motion also alleged that Bolton’s trial

attorney failed to preserve evidence and voluntarily submitted unfavorable evidence which enhanced

Bolton’s sentence. The trial court denied Bolton’s post-conviction motion on April 17, 2001. The

Michigan Court of Appeals refused to grant leave for Bolton to appeal this decision on August 16,

2001, and the Michigan Supreme Court likewise denied Bolton’s request on March 4, 2002. People

v. Bolton, 640 N.W.2d 875 (Mich. 2002).

                                    B. Federal Habeas Petition

       Bolton filed the instant habeas petition in the Western District of Michigan on April 3, 2002,

less than thirty days after the conclusion of his state post-conviction proceedings. The district court

restated the claims outlined in the habeas petition as follows:

               The trial court’s decision was contrary to clearly established federal law
               and/or an unreasonable application of federal law when the court concluded
               that the Petitioner was required to show an actual rather than a potential
               conflict of interest. The failure of the appellate courts to review also
               violated federal habeas standards.

               Even if actual conflict is the proper standard, the trial judge misapplied
               clearly established federal law and/or made an unreasonable interpretation

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               of that law by concluding that an actual conflict was not shown. The
               appellate courts also violated federal habeas standards when they refused
               discretionary review.

               Even if there was no conflict of interest, it was a contrary application of
               clearly established federal law or an unreasonable application of that law
               to have denied relief because the record showed that the Petitioner had
               received constitutionally ineffective lawyering.

Respondent-Appellee Mary Berghuis (“Appellee” or “Berghuis”) moved to dismiss the petition as

untimely. In response, Bolton contended he had been unable to discover the factual predicate for

the claim until shortly before he filed his motion for state post-conviction relief, and argued that the

statute of limitations should be equitably tolled to permit a ruling on the merits of his petition. On

April 7, 2003, the district court judge adopted the magistrate judge’s report and recommendation that

the motion to dismiss be denied without prejudice, pending a hearing on when Bolton had actually

discovered the factual predicate for his ineffective assistance of counsel claim

       After a hearing, Appellee filed a second motion to dismiss the petition as untimely. In March

2005, the district judge adopted the magistrate judge’s report and recommendation that the motion

to dismiss be granted. The district court held that a diligent investigation of the facts underlying

Bolton’s ineffective assistance of counsel claims should have been completed no later than July

1995. Since the motion for state post-conviction relief was not filed until more than three years

later, the district court found that the subsequent habeas petition was filed well beyond the one-year

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of limitations. With

respect to equitable tolling, the district court reviewed the five factors governing the doctrine, and

concluded equitable tolling was not applicable. Finally, the court found that inasmuch as the basis

for Bolton’s actual innocence claim was polygraph evidence, such evidence was inadmissible in

criminal trials in Michigan, and thus did not constitute admissible evidence of actual innocence.

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       The district court did grant a certificate of appealability for all grounds asserted, noting that

“the procedural ruling, though resting on a solid legal basis, is objectively debatable because of the

evolving law on the issues of equitable tolling and ‘actual innocence.’”

                                  II. STANDARD OF REVIEW

       A district court’s decision to deny habeas corpus relief is reviewed de novo. E.g., Allen v.

Yukins, 366 F.3d 396, 399 (6th Cir. 2004). Likewise, a district court’s decision not to apply

equitable tolling is reviewed de novo. E.g., King v. Bell, 378 F.3d 550, 553 (6th Cir. 2004).

       A district court’s factual findings are reversible only for clear error. Amadeo v. Zant, 486

U.S. 214, 223 (1988).

                                   III. LAW AND ANALYSIS

                                 A. AEDPA Statute of Limitations

       Bolton contends the district court erred when it found his petition for habeas relief was

untimely filed. Under 28 U.S.C. § 2244(d)(1), a prisoner may file a motion in federal court to vacate

a state court conviction or sentence, but such a motion is subject to a one-year statute of limitation,

which runs from the latest of:

               (A) the date on which the judgment of conviction 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

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               could have been discovered through the exercise of due diligence.

28 U.S.C. § 2241(d)(1). Additionally, the statute indicates that “[t]he time during which a properly

filed application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation under this

subsection.” 28 U.S.C. § 2241(d)(2).

       Bolton’s conviction became final in 1996, when he did not timely seek a writ of certiorari

in the United States Supreme Court to appeal the Michigan Supreme Court’s decision denying him

leave to appeal his conviction. Bolton did not file his federal habeas petition until 2002, nearly six

years after his conviction became final. Thus, the petition was filed more than one year after the

conviction became final, and is untimely under 28 U.S.C. § 2241(d)(1)(A).

       Bolton argues that even if his petition was untimely under § 2241(d)(1)(A), the petition was

timely under § 2241(d)(1)(D). Under this section, Bolton contends the one-year statute of

limitations started in January 1999, the time he maintains he learned of the factual predicate for his

claim and filed his state post-conviction motion. According to his calculation, the limitations period

was stayed pending the state post-conviction proceedings, and his federal habeas filing less than

thirty days from the end of the state proceedings was timely. Appellant contends that he “did not

learn enough information to link the trial attorney’s membership in the police organization to a

conflict of interest” until 1999. Bolton does admit he first learned his trial lawyer was a volunteer

sheriff in 1995. However, he argues that he did not pursue information about the conflict during his

direct appeal, because such an issue could not be raised on direct appeal, and would be moot if the

direct appeal were successful. Moreover, Bolton asserts that the fact his trial counsel was a

volunteer sheriff was not evidence of a conflict of interest per se, and more investigation was


                                                 -5-
necessary before he truly knew the factual predicate for the claim.

       Appellee argues that Bolton knew the factual predicate for his ineffective assistance of

counsel claim in July 1995, and that there was no reason for the forty-one month delay in filing for

state post-conviction relief. The magistrate judge (and the district court) agreed, noting that:

               Counsel has failed, however, to identify what additional facts were
               necessary to properly evaluate Petitioner’s claim. Moreover, counsel has
               failed to identify any investigatory efforts that he undertook subsequent to
               July 1995. The Court is not suggesting that counsel did not undertake any
               such investigatory efforts, but it is relevant that counsel has failed to
               identify the nature of any such efforts or articulate their relevance to
               Petitioner’s habeas claims.

The court went on to note the facts on the record indicating that Appellant and his family had

learned of the potential conflict of interest in July 1995, and made the following factual finding:

               in the absence of any evidence suggesting otherwise, the Court can envision
               no circumstance in which a diligent investigation of the facts underlying
               Petitioner’s claims would have taken until January 1999 (as Petitioner
               asserts) or even January 30, 1998 (the latest date by which the limitations
               period could have started and still rendered timely Bolton’s petition).

The district court’s finding of fact is not clearly erroneous. There is no dispute that Appellant

learned the underlying facts to support his ineffective assistance of counsel claim in July 1995, but

made no filing in any court until July 1999, well after the one-year statute of limitations had expired.

Therefore, Bolton’s petition for a writ of habeas corpus is time-barred under the one-year AEDPA

statute of limitations in 28 U.S.C. § 2241(d).

                                        B. Equitable Tolling

       Bolton argues that even if his petition is time-barred under the AEDPA, the court should

apply the doctrine of equitable tolling and hear his habeas claims on their merits. Appellant makes

several overlapping arguments for equitable tolling, which essentially fall into three categories: (1)


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mandatory equitable tolling, pursuant to Griffin v. Rogers, 399 F.3d 626 (6th Cir. 2005) and Palmer

v. Carlton, 276 F.3d 777 (6th Cir. 2002); (2) general principles of equitable tolling; and (3) equitable

tolling due to a claim of actual innocence, pursuant to Souter v. Jones, 395 F.3d 577 (6th Cir. 2005).

For the reasons stated below, none of these arguments justify the application of equitable tolling in

this case.

1. Mandatory Equitable Tolling

        Appellant cites two recent Sixth Circuit cases, Griffin and Palmer, to support equitable

tolling in his case. The court finds these cases inapplicable to the current case. Griffin and Palmer

established a doctrine of “mandatory equitable tolling” under specific, narrow circumstances. They

addressed a problem arising out of the Supreme Court’s holding, in Duncan v. Walker, 533 U.S. 167

(2001), that the AEDPA statute of limitations was not tolled during the pendency of federal habeas

proceedings.1 The Duncan holding, combined with the AEDPA’s requirement that all habeas claims

be exhausted by being presented to the state courts prior to filing for federal habeas relief, presented

a problem for state prisoners with mixed petitions seeking federal habeas relief on some claims that

had been exhausted in state court and some that had not been exhausted. In such circumstances, the

federal court would dismiss the petition for containing unexhausted claims. By that time, however,

the statute of limitations on the previously-exhausted claims may well have expired. On the other

hand, if he filed the unexhausted claims in state court first, the statute of limitations would be tolled

for those claims only, and he would likely be precluded by the statute of limitations from pursuing


        1
                In a concurring opinion in Duncan, Justice Stevens identified this problem and
                proposed the stay-and-abeyance procedure which was adopted by the Second
                Circuit in Zarvela v. Artuz, 254 F.3d 374 (2d.Cir. 2001) and later by this court in
                Palmer.


                                                  -7-
the previously-exhausted claims in federal court. Griffin and Palmer addressed this unique situation,

and adopted:

               a stay-and-abeyance procedure, which effects a mandatory form of
               equitable tolling for the narrow group of cases in which a mixed petition
               is dismissed near or after the expiration of the AEDPA limitations period.
               Our Court has determined that if such a petitioner files any unexhausted
               claims in state court within 30 days of dismissal and re-files in federal
               court within 30 days of exhaustion, the re-filed petition will automatically
               be considered timely. If this mandatory equitable tolling does not apply,
               this Court may still equitably toll the limitations period based on the
               traditional equitable factors as outlined by this court in Andrews v. Orr, 851
               F.2d 146 (6th Cir. 1998).

Griffin, 399 F.3d at 631. In both Griffin and Palmer, however, the original date of filing in federal

court for the stay-and-abeyance procedure was timely and within the one-year AEDPA statute of

limitations. By their very terms, the Palmer/Griffin line of cases apply to a habeas petitioner who:

(1) has a mixed case of some exhausted and some unexhausted claims; (2) files a timely petition in

federal court; and (3) thereafter pursues his unexhausted claims in state court within 30 days and

refiles in federal court within 30 days after exhaustion.

       Appellant argues that if he had the benefit of the Palmer decision earlier, he would have filed

his unexhausted claims in federal court in a timely fashion, obtained a stay, and proceeded to state

court to exhaust the claims. However, assuming Palmer was the law in 1997, it would not have

helped Appellant. First, Palmer applies only to mixed petitions, and Appellant’s petition prior to

the state post-conviction motion was not mixed; it contained only unexhausted claims. Even if the

court read Palmer to apply to unmixed petitions, Appellant’s petition was still not timely filed in the

first case. Bolton’s petition would have had to have been filed in state or federal court by August 31,

1997, to be timely. However, Appellant filed nothing regarding this claim in any court until 1999.

While he contends that if Palmer had been the law at the time, he would have filed in 1997, there

                                                 -8-
is nothing to suggest this is true. His stated reason for failure to file in 1997, which has already been

rejected by the court, was that he had not learned of the factual predicate for his claim at that time.

There is nothing in Palmer to suggest that claims should be filed prior to one year before the date

by which the factual predicate for the claim could have been discovered by the exercise of due

diligence. Mandatory equitable tolling, as contemplated by Palmer and Griffin, is strictly limited

to protect a narrow class of habeas petitioners “whose timely filed habeas petitions remain pending

in district court past the limitations period, only to be dismissed after the court belatedly realizes that

one or more claims have not been exhausted.” Duncan, 533 U.S. at 184. Bolton is not within that

class, and mandatory equitable tolling does not apply in Bolton’s case.

2. Traditional Equitable Tolling: Five Factors

        While Appellant conflates the Palmer/Griffin mandatory equitable tolling discussed above

with the traditional five-factor equitable tolling analysis used by the Sixth Circuit, the court

evaluates the traditional equitable tolling analysis separately. The factors a court should examine

in determining whether equitable tolling applies to waive the AEDPA statute of limitations are:

                (1) lack of actual notice of filing requirement; (2) lack of constructive
                knowledge of filing requirement; (3) diligence in pursuing one's rights; (4)
                absence of prejudice to the defendant; and (5) a plaintiff's reasonableness in
                remaining ignorant of the notice requirement.

E.g., Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1998). Appellant’s argument regarding knowledge

of the filing requirement in elements (1), (2), and (5) is based entirely on the Palmer/Griffin line of

cases discussed above. For the reasons discussed above, these factors do not weigh in favor of

equitable tolling. Regardless of Palmer, Bolton knew or should have known that he had one year

from the date his conviction became final to pursue habeas relief. Indeed, he does not contend that

he did not know of the AEDPA’s filing requirements. Yet, knowing of the underlying facts

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supporting his ineffective assistance of counsel claim, he did nothing to pursue his claim. Inasmuch

as his only argument for lack of notice is based on Palmer, elements (1), (2), and (5) counsel against

equitable tolling.

           In addition, Appellant’s argument regarding his diligence in pursuing his rights is also

flawed, as discussed above. The district court held as a factual matter that Appellant had not been

diligent from 1995 to 1999 in pursuing his rights. Additionally, Appellee cites Jurado v. Burt, 337

F.3d 638 (6th Cir. 2003), in which the Sixth Circuit performed a diligence analysis in a similar

context. In Jurado, a petitioner took nineteen months to file his federal habeas claim, and urged the

court to apply equitable tolling to excuse the delay. The court evaluated the diligence of counsel

in pursuing petitioner’s rights, holding that “AEDPA does not convey a right to an extended delay

while a habeas petitioner gathers every possible scrap of evidence that might support his claim. See

Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). Neither does the doctrine of equitable

tolling grant such a right.” Jurado, 337 F.3d at 644. The court finds Jurado persuasive. The district

court held an evidentiary hearing to determine when Bolton learned the underlying factual predicate

for his habeas claim, and correctly concluded that “these facts were either (a) known to counsel in

July 1995, or (b) through the exercise of due diligence could have been ascertained soon thereafter.

Counsel has advanced neither argument nor evidence suggesting otherwise.” Thus, Appellant knew

of the underlying factual predicate for his habeas claim in July 1995, and there is no right to an

extended delay to gather every possible additional detail to support the habeas claim. The third

factor also counsels against equitable tolling. For these reasons, the court declines to apply equitable

tolling.

3. Equitable Tolling for Actual Innocence


                                                 -10-
       The Sixth Circuit recently codified that equitable tolling will apply to claims of actual

innocence by otherwise time-barred habeas petitioners. Souter v. Jones, 395 F.3d 577 (6th Cir.

2005). Souter, relying on Schlup v. Delo, 513 U.S. 298 (1995), held:

               where an otherwise time-barred habeas petitioner can demonstrate that it
               is more likely than not that no reasonable juror would have found him
               guilty beyond a reasonable doubt, the petitioner should be allowed to pass
               through the gateway and argue the merits of his underlying constitutional
               claims.


395 F.3d at 602. Actual innocence must be proven by “‘new reliable evidence -- whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that

was not presented at trial.’” Id. at 590 (quoting Schlup, 513 U.S. at 324).

       In the instant case, Appellant contends that polygraph test results support his innocence.

However, polygraph examinations are not admissible evidence in Michigan state courts, which have

held that they are not scientifically valid and thus not reliable. E.g., People v. Ray, 430 N.W.2d 626,

628 (Mich. 1988). While Appellant spends substantial pages of his brief arguing that New Mexico

and Georgia have recently changed course and admitted polygraph evidence, as of this date,

Michigan has not done so, and has shown no indication of doing so. It is not for this court to

speculate on what Michigan may do in the future, or when it may do so. Furthermore, the

admissibility of polygraph evidence is a state law issue, and thus not an issue of clearly established

federal law. No federal court has held that as a constitutional matter, polygraph evidence must be

admitted in any criminal trial, or that polygraph evidence is reliable. See United States v. Sheffer,

523 U.S. 303 (1998) (finding there is no consensus among jurisdictions that polygraph evidence is

reliable). Therefore, since any polygraph results would not be admissible or reliable evidence, the

actual innocence exception to the statute of limitations contemplated in Souter v. Jones is

                                                 -11-
inapplicable here. Appellant has not shown admissible, reliable evidence of his actual innocence.

Consequently, the court affirms the district court’s denial of his claim for equitable tolling on this

ground.

       Even if the court assumed that the polygraph results were reliable evidence2, the polygraph

test results do not support a claim of actual innocence. If believed, the polygraph evidence only

suggests that Appellant did not shoot or attempt to shoot Officer Briney, did not hold a gun to

Officer Briney’s head, and did not fire any shots while in the police cruiser. The evidence does not

contradict Officer Briney’s testimony that Appellant shouted “kill him, kill the fucking pig” to his

cousin-accomplice. Moreover, Appellant does not contest that he physically attacked Officer

Briney, that he obtained Officer Briney’s gun during the course of the incident, or that he fired his

own gun while fleeing the scene. In light of these uncontested facts, a reasonable jury could easily

find that Appellant intended to murder Officer Briney. Therefore, Appellant has not established a

claim of actual innocence.

                                        IV. CONCLUSION



       2
               The Supreme Court, in Schlup v. Delo, 513 U.S. 298, 327-28 (1995) counseled:

               In assessing the adequacy of petitioner's showing, therefore, the district
               court is not bound by the rules of admissibility that would govern at trial.
               Instead, the emphasis on "actual innocence" allows the reviewing tribunal
               also to consider the probative force of relevant evidence that was either
               excluded or unavailable at trial. Indeed, with respect to this aspect of the
               Carrier standard, we believe that Judge Friendly's description of the inquiry
               is appropriate: The habeas court must make its determination concerning the
               petitioner's innocence "in light of all the evidence, including that alleged to
               have been illegally admitted (but with due regard to any unreliability of it)
               and evidence tenably claimed to have been wrongly excluded or to have
               become available only after the trial.”


                                                -12-
       Bolton’s petition for a writ of habeas corpus was untimely under the AEDPA, and Bolton

has failed to set forth a justification to support equitable tolling. The decision of the district court

dismissing Bolton’s petition is AFFIRMED.




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