                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0286n.06
                            Filed: April 23, 2007

                                           No. 05-1821

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DAVID CRAIG,                                      )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
HAROLD WHITE, Warden,                             )   EASTERN DISTRICT OF MICHIGAN
                                                  )
       Respondent-Appellee.                       )




       Before: ROGERS and COOK, Circuit Judges; and O’MALLEY, District Judge.*


       PER CURIAM. David Smith Craig asks this court to equitably toll the one-year 28 U.S.C.

§ 2244(d) statute of limitations for his untimely habeas petition. After pleading no contest to three

felonies in state court, Craig was sentenced under Michigan’s habitual offender statute to eight to

twenty years in prison. Craig appealed his sentence, but he did not challenge the application of the

habitual offender statute. The Michigan Court of Appeals denied his leave to appeal on September

29, 1999, and Craig did not appeal to the Michigan Supreme Court. Craig filed his federal petition

for habeas corpus on November 11, 2004, claiming that his prior convictions did not warrant




       *
         The Honorable Kathleen McDonald O’Malley, United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 05-1821
Craig v. White

application of the habitual offender statute under Michigan state law. The district court held that

Craig’s petition was untimely and that he was not entitled to equitable tolling.


       We review de novo a district court’s decision to deny equitable tolling where the facts are

undisputed. See Solomon v. United States, 467 F.3d 928, 932 (6th Cir. 2006). Craig “bears the

burden of demonstrating that he is entitled to equitable tolling.” Jurado v. Burt, 337 F.3d 638, 642

(6th Cir. 2003).


       Craig claims that he is actually innocent of being a habitual offender because the sentencing

judge misapplied Michigan’s habitual offender statute. We have held that actual innocence can be

a basis for equitable tolling when a petitioner “can present new evidence which undermines this

court’s confidence in the outcome of the trial.” Souter v. Jones, 395 F.3d 577, 600 (6th Cir. 2005);

see also Knickerbocker v. Wolfenbarger, No. 05-1556, 2007 U.S. App. LEXIS 279, at *13-15 (6th

Cir. Jan. 5, 2007); Stoker v. Watson, 184 F. App’x 496, 497 (6th Cir. 2006); Bolton v. Berghuis, 164

F. App’x 543, 549-50 (6th Cir. 2006). Where a petitioner asserts actual innocence solely based on

his interpretation of the law, however, Souter’s actual innocence exception does not apply. See Ross

v. Berghuis, 417 F.3d 552, 555 (6th Cir. 2005) (“[T]his case does not fit within the actual innocence

equitable tolling rule recognized in Souter v. Jones . . . because he has not provided new exculpatory

evidence.”); see also Harvey v. Jones, 179 F. App’x 294, 298 (6th Cir. 2006); Nelloms v. Jackson,

129 F. App’x 933, 936 (6th Cir. 2005). Craig does not claim that any new evidence undermines our

confidence in his sentence, but rather argues actual innocence based only on his new reading of



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No. 05-1821
Craig v. White

Michigan law. Under Ross, Souter does not provide us with a basis to equitably toll the § 2244(d)

statute of limitations.


        Nor is Craig entitled to equitable tolling under the standard Sixth Circuit test. See Dunlap

v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001) (explaining the five factors this circuit uses

to analyze equitable tolling under § 2244(d)). He does not establish that he has been pursuing his

rights diligently, nor does he allege any extraordinary circumstance that would excuse his failure to

file. Craig’s entire argument is based on his ignorance of the law, which we have held is not a basis

for equitable tolling. Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004).


        Craig has failed to carry his burden to demonstrate that his untimely petition should be

equitably tolled. We affirm.




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