       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.

                            1
No. 02-3258                         Vroman v. Brigano        3    4      Vroman v. Brigano                          No. 02-3258

  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.
