                   NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                              File Name: 14a0270n.06

                                                  No. 11-3784
                                                                                                       FILED
                               UNITED STATES COURT OF APPEALS                                   Apr 10, 2014
                                    FOR THE SIXTH CIRCUIT                                  DEBORAH S. HUNT, Clerk


LAWRENCE ANDERSON,                                   )
                                                     )
        Petitioner-Appellant,                        )
                                                     )
                 v.                                  )        ON APPEAL FROM THE UNITED
                                                     )        STATES DISTRICT COURT FOR THE
TIMOTHY BRUNSMAN,                                    )        NORTHERN DISTRICT OF OHIO
                                                     )
        Respondent-Appellee.                         )


Before: BOGGS and ROGERS, Circuit Judges, and STEEH, District Judge.*

        STEEH, District Judge. Ohio state prisoner Lawrence Anderson appeals the district court’s

denial of his petition for a writ of habeas corpus. In his pro se petition, Anderson claimed

ineffective assistance of trial counsel. The district court entered its judgment dismissing Anderson’s

petition as time-barred on March 8, 2012, and, in that order, declined to issue a certificate of

appealability. This court granted a certificate of appealability as to the issue presented in

Anderson’s habeas petition and appointed counsel for Anderson. Because we agree that the petition

was time-barred, the judgment of the district court is affirmed.

                                                         I.

        The facts from which Anderson’s conviction of rape and kidnapping stem were set forth as

follows by the Ohio Court of Appeals in its decision denying Anderson’s direct appeal:



        *
         Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting
by designation.
No. 11-3784                                                                                      2

              {¶ 8} On February 19, 2007, Melvina J., a health worker, arrived at the
      residence of her client some time shortly after 10:00 p.m. When she arrived at that
      location and got out of her minivan, appellant, who until recently was living with
      Melvina, was standing there. He appeared to be angry. When the victim exited her
      minivan, appellant grabbed her and forced her head through a side window of the
      vehicle. Then, holding Melvina around the neck, he walked her a number of blocks,
      accusing her of “cheating on him” and telling her, “If I can’t have you, nobody can.”
      Appellant also punched Melvina in the face as they walked. Throughout the entire
      incident appellant repeatedly told the victim that he was going to kill her and her
      children. Melvina kept telling appellant that she was not cheating and that she loved
      him. He took her down an alley to an empty garage where he continued raving about
      her alleged cheating. Appellant then picked up a “2x4" and swung it at Melvina’s
      head. She put up her arm to protect her head and the piece of wood struck it,
      breaking her forearm.

              {¶ 9} At this point, Melvina’s testimony at trial diverged from the trial
      testimony of Carrie L. Rawson, a Sexual Assault Nurse Examiner, Toledo Police
      Officer Jeffrey S. Payne, and Detective Gene Dutz of the Toledo Police
      Department’s Special Victim’s Unit, on the issue of whether appellant raped her
      while in the garage. Officer Payne testified that Melvina told him that a man, whom
      she never identified, placed his finger in her vagina, that he licked her genital area,
      and that he placed his penis in her vagina. In short, the victim indicated that this
      individual raped her. When Payne asked Melvina to identify her assailant, she
      refused, stating, “[H]e will kill me and my kids.”

              {¶ 10} Detective Kutz provided similar testimony, but also stated that
      Melvina identified appellant as the rapist. Moreover, Detective Kutz interviewed
      appellant, who admitted putting the victim’s head through the minivan window,
      forcibly taking her to the garage, and breaking her arm with the piece of wood, but
      insisted that he and Melvina then engaged in consensual sexual activity.

              {¶ 11} In her testimony, Nurse Rawson referred to Melvina’s medical chart,
      which was admitted into evidence as a business record. According to the chart and
      Rawson’s testimony, while in the garage, appellant pushed Melvina to the floor of
      the garage, penetrated her with his finger, licked her genital area, and then penetrated
      her with his penis. During this latter act, the chart indicates that appellant
      choked/strangled Melvina until she lost consciousness briefly. Rawson also testified
      that Melvina specifically identified appellant as the individual who attacked and
      raped her and that Melvina reviewed the notes taken by the nurse. Finally, Rawson
      indicated that the victim’s wet and dirty coat was returned to her before she left the
      hospital.

             {¶ 12} When Melvina testified, however, she claimed that appellant never
      penetrated her vagina with his finger but that he put “his mouth on her vagina.” She
No. 11-3784                                                                                           3

       further maintained that she and appellant engaged in consensual sexual intercourse
       on a table in the garage. Melvina also denied ever seeing the notes taken by Nurse
       Rawson or of being provided with the opportunity to review any notes taken by
       Officer Payne and Detective Kurtz in order to determine their accuracy.

State v. Anderson, No. L-07-1351, 2008 WL 4823345, at *1-2.

       A Lucas County grand jury issued an indictment charging Anderson with one count of rape

with a violent-offender specification, one count of kidnapping with a sexual-motivation

specification, and one count of felonious assault. Anderson was convicted by a jury of rape,

kidnapping, and felonious assault, and by the trial court of the specifications attached to the rape and

kidnapping charges. Anderson was sentenced to ten years to life for rape, ten years to life for

kidnapping, and eight years for felonious assault. The rape and kidnapping sentences were to be

served concurrently but consecutive to the sentence for felonious assault.

       Anderson secured new counsel and appealed to Ohio’s Sixth District Court of Appeals. His

only claim on direct appeal concerning ineffective assistance of counsel asserted his trial counsel’s

failure to “ascertain from the discovery provided by the state that the coat Melvina was wearing on

the night of February 19, 2007 was in the Toledo Police Department’s property room.” Id. at * 2.

The Court of Appeals affirmed the judgment of the trial court on November 7, 2008. Anderson

asserts, citing his affidavit in support of his request for delayed appeal, that he “did not receive a

time stamped copy of the Judgment Entry and Opinion [of the Ohio Court of Appeals] until April

28, 2009.” Appellant’s Br. At 11. On June 15, 2009, Anderson filed a pro se notice of appeal and

a motion for delayed appeal to the Ohio Supreme Court. That motion was denied on July 29, 2009.
No. 11-3784                                                                                                              4

         Anderson filed his petition for habeas corpus on April 23, 2010.1 In that petition, Anderson

stated only one claim: “Ineffective assistance of counsel. Trial counsel failed to investigate

discovery package concerning exculpatory DNA evidence.” R.1, PageID 5. The government

responded to the petition with a motion to dismiss, asserting that the petition was time-barred. The

magistrate judge to whom the petition was referred for a report and recommendation issued a report

on February 11, 2011, recommending that the court dismiss the petition on that basis. Anderson

filed objections to the report and recommendation in late April 2011, which were considered by the

district court despite their late date. The district court then entered an order overruling Anderson’s

objections, adopting the magistrate judge’s report and recommendation, and dismissing Anderson’s

petition as time-barred. As noted above, the district court declined to issue a certificate of

appealability. Anderson filed a notice of appeal with this court, which was construed as an

application for a certificate of appealability under Federal Rule of Appellate Procedure 22(b)(2).

This court granted that request, appointed counsel for Anderson, and directed the clerk of court to

issue a briefing schedule on the issue of whether Anderson’s trial counsel was ineffective.

                                                           II.

         We are presented on appeal with the same threshold issue found to be dispositive by the

district court: whether or not Anderson’s habeas petition is time-barred. Anderson’s petition, filed

in 2010, is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The

answer to this question boils down to whether the AEDPA’s one-year statute of limitations began

to run 45 days after the ruling of the Ohio Court of Appeals, or whether–as Anderson argues–it




         1
          This appears to be the date Anderson presented his petition to prison officials, which is deemed to be the filing
date under the mailbox rule. See Houston v. Lack, 487 U.S. 266, 273 (1988).
No. 11-3784                                                                                           5

began running after the Ohio Supreme Court’s disposition of his motion for delayed appeal and

notice of appeal on July 29, 2009.

        The district court’s determination that Anderson’s habeas petition was untimely is reviewed

by this court de novo. See DiCenzi v. Rose, 452 F.3d 465, 469-70 (6th Cir. 2006) (citing Miller v.

Collins, 305 F.3d 491, 493-94 (6th Cir. 2002)).

        There is no dispute here that the timeliness of Anderson’s petition is governed by the first

specified limitation period of the AEDPA:

        (d)(1) 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. The
        limitation period shall 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;

AEDPA, 28 U.S.C. § 2244(d)(1)(A) (emphasis added). There is also no dispute that Anderson’s

petition was filed more than one year after the expiration of the time period for filing a timely appeal

with the Ohio Supreme Court. Anderson takes the position, however, that a motion for delayed

appeal can be considered part of the direct review of a conviction, depending on the “underlying

procedural history and facts of the individual case.” Appellant’s Br. at 21.

        Anderson’s argument is not persuasive. Our decision of Searcy v. Carter, 246 F.3d 515 (6th

Cir. 2001), confirms that in the situation where a habeas petitioner fails to timely seek review of a

state appellate court decision, the conviction is final when the time period for filing that appeal

expires. Id. at 519. See also DiCenzi, 452 F.3d at 469-70. As explained in the Searcy decision, to

delay the commencement of the running of the statute of limitations until the resolution of a motion

for delayed appeal, which can be filed years after conviction, would “effectively eviscerate the

AEDPA’s statute of limitations.” Searcy, 246 F.3d at 519 (quoting Raynor v. Dufrain, 28 F. Supp.
No. 11-3784                                                                                           6

2d 896, 898 (S.D.N.Y. 1998)). Consequently, while Anderson attempts to characterize his request

to file a motion for delayed appeal as a part of his direct appeal, this is inaccurate. Searcy, 246 F.3d

at 519.

          Under the circumstances presented in the instant case, the AEDPA statute of limitations

began to run on December 22, 2008. With respect to Anderson’s request to file a delayed appeal,

which he filed on June 15, 2009, such a post-conviction or collateral proceeding may toll the statute

of limitations, but does not restart it. DiCenzi at 468 (citing Searcy, 246 F.3d at 519). Under 28

U.S.C. § 2244(d)(2), “[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.” Additionally, the ninety-day period

applicable to petitions for certiorari to the United States Supreme Court does not enter the

calculation in this scenario, for the reason that the motion for delayed appeal was not a part of the

direct review. Searcy, 246 F.3d at 519, Lawrence v. Florida, 549 U.S. 327, 332 (2007) (holding that

“§ 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for

certiorari.”).

          Accordingly, the statute of limitations was tolled for a period of 45 days, from the filing of

Anderson’s motion for delayed appeal on June 15, 2009, until its disposition on July 29, 2009. The

limitations period then expired on February 5, 2010. Anderson’s habeas petition, which he signed

on April 23, 2010 and was filed by the district court on June 2, 2010, was thus untimely, regardless

of whether the April or June date is considered.

          Anderson also asserts that equitable tolling saves his late filing. Under Holland v. Florida,

560 U.S. 631 (2010), to be afforded this relief, a petitioner must first establish that his rights have
No. 11-3784                                                                                                7

been pursued with diligence. Second, the petitioner must show that an extraordinary circumstance

was the cause for the untimely filing. See Hall v. Warden, 662 F.3d 745, 749-50 (6th Cir. 2011)

(discussing Holland’s two-part test). The burden is on Anderson to show he was entitled to this

relief. See McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003).

        Anderson asserts that he did not receive a copy of the decision of the Ohio appellate court

from either the court clerk or his lawyer prior to April 28, 2009. He further states that after he

received his time-stamped copy, he did not have the resources to pay for necessary copies of

documents, and had only limited assistance and time in the library to prepare legal filings.

        As the respondent points out, however, even after Anderson’s motion for delayed appeal was

denied, he had more than six months to file his habeas petition. In fact, the motion for delayed

appeal itself was filed more than 45 days after Anderson acknowledges receiving his “time-stamped

copy.” Anderson does not persuade the court of his diligence or that these are the kind of

extraordinary circumstances entitling a petitioner to such rarely granted relief. See Holland, 130 S.

Ct. at 2562 (holding that counsel’s failure to turn over trial transcript and other documents, as well

as restrictions on visits to the prison’s law library, did not entitle petitioner to equitable tolling).

        Finally, Anderson makes the argument that his actual innocence entitles him to equitable

tolling of the statute. While this court has allowed for equitable tolling on this basis in certain

extraordinary situations, no such circumstances are present here. Under the standard stated in the

landmark case of Schlup v. Delo, 513 U.S. 298, 321 (1995), this claim “requires petitioner to support

his allegations of constitutional error with new reliable evidence– whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence–that was not

presented at trial.” Id. at 324.
No. 11-3784                                                                                          8

       In Anderson’s response to respondent’s motion to dismiss in the district court proceedings,

Anderson asserted that “[t]he record is full with clear and convincing evidence of innocence.”

Anderson recounts trial testimony of Melvina describing both the sex and the walk to the garage as

consensual. Anderson also included the statement that “[f]urthermore and most unusual is that the

DNA taken at the hospital from the alleged victim does not match the petitioner!” R 7, Page ID 161.

Finally, Anderson wrote about a letter Melvina wrote to the prosecutor in April 2007, in which she

requested that the charges against Anderson be dropped, and wrote that she “said things that I

shouldn’t have said. Also in my anger I said things to Lawrence Anderson that provoked him to

behave as he normally wouldn’t have toward me.” See Exhibit A to appellant’s brief on appeal.

       None of this amounts to new evidence or extraordinary circumstances. The letter was an

exhibit at trial. The guilty verdict took this letter into consideration. As respondent emphasizes, the

Ohio appellate court found that “the testimony of the law enforcement officers, Nurse Rawson, and

the physical evidence provide overwhelming evidence of appellant’s guilt.” Anderson, 2008 WL

4823345, at *3. Anderson’s argument for equitable tolling on this basis lacks merit.

                                                 III.

       Because Anderson’s petition is time-barred, we will not address the respondent’s alternative

arguments regarding procedural default and the merits of the petition. Additionally, given our

ruling, Anderson’s motion to take judicial notice of the trial court record and transcripts and to

enlarge the record is denied as moot.
No. 11-3784                                                                                         9

                                                 IV.

       Anderson’s habeas petition was filed after the expiration of the applicable AEDPA

limitations period and we hold he is not entitled to equitable tolling of the statute. The judgment of

the district court is therefore AFFIRMED.
