          RECOMMENDED FOR FULL-TEXT PUBLICATION
               Pursuant to Sixth Circuit Rule 206                        2      Allen v. Yukins                           No. 03-1078
        ELECTRONIC CITATION: 2004 FED App. 114P (6th Cir.)
                    File Name: 04a114p.06                                ATTORNEY GENERAL, CORRECTIONS DIVISION,
                                                                         Lansing, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                                               _________________
                  FOR THE SIXTH CIRCUIT                                                          OPINION
                    _________________                                                        _________________

 CHARMEL ALLEN,                   X                                        RONALD LEE GILMAN, Circuit Judge. Petitioner
                                                                         Charmel Allen, a Michigan state prisoner, appeals from the
         Petitioner-Appellant, -                                         district court’s dismissal of her petition for a writ of habeas
                                   -
                                   -  No. 03-1078                        corpus. The district court concluded that Allen’s petition was
           v.                      -                                     barred by the one-year statute of limitations imposed by the
                                    >                                    Antiterrorism and Effective Death Penalty Act (AEDPA).
                                   ,                                     Allen contends that the district court erred in dismissing her
 JOAN N. YUKINS, Warden,           -
         Respondent-Appellee. -                                          petition. She first argues that her motion for state
                                                                         postconviction relief, which claimed that her counsel on direct
                                  N                                      appeal had been constitutionally ineffective, should be
      Appeal from the United States District Court                       considered part of the direct appeals process, thus delaying
     for the Eastern District of Michigan at Detroit.                    the start of AEDPA’s statute of limitations. Alternatively,
   No. 01-74002—Victoria A. Roberts, District Judge.                     Allen argues that even if her petition was untimely, the delay
                                                                         should be excused either because she is entitled to equitable
                  Submitted: March 17, 2004                              tolling or because she is actually innocent of the crime for
                                                                         which she was convicted. For the reasons set forth below, we
              Decided and Filed: April 20, 2004                          AFFIRM the judgment of the district court.

  Before: KRUPANSKY and GILMAN, Circuit Judges;                                              I. BACKGROUND
             RUSSELL, District Judge.*
                                                                           A jury convicted Allen of both felony murder and assault
                      _________________                                  with the intent to commit murder on the basis of an incident
                                                                         that occurred in September of 1990. The Michigan Court of
                           COUNSEL                                       Appeals provided the following summary of the facts
                                                                         underlying Allen’s conviction:
ON BRIEF: Craig A. Daly, Detroit, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE                                 Defendant lived in an apartment across the hall from
                                                                             Brian Carson and Larry Wallace, who were roommates.
                                                                             At trial, it was revealed that on the date in question,
                                                                             defendant could not account for approximately $1,200 of
    *
     The Honorable Thomas B. Russell, United States District Judge for       her ex-boyfriend’s money. Testimony revealed that this
the Western District of Kentucky, sitting by designation.

                                  1
No. 03-1078                              Allen v. Yukins      3    4      Allen v. Yukins                             No. 03-1078

  money was derived from the illegal drug trade. The               nolo contendere to the manslaughter charge or the resulting
  prosecution theorized that defendant was fearful of the          sentence.
  probable consequences of her inability to locate the
  missing funds and, thus, desperately plotted to recoup                                    II. ANALYSIS
  them. Hence, on the night in question, defendant,
  accompanied by Anastasia [Allen, the defendant’s sister]         A. Standard of review
  and [Ronald] Light, forcibly entered Carson’s and
  Wallace’s apartment and asked for money—Light                      This case is governed by AEDPA, codified principally at
  possessed a firearm. A struggle ensued. Wallace died as          28 U.S.C. § 2254(d), because Allen filed her habeas petition
  a result of being shot at close range, and Carson was            in October of 2001, well after AEDPA’s effective date of
  severely wounded.                                                April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336
                                                                   (1997). Under AEDPA, factual findings made by a state
  The Michigan Court of Appeals vacated Allen’s conviction         court are presumed correct unless the petitioner rebuts the
for felony murder in May of 1991, but affirmed her                 presumption with clear and convincing evidence. 28 U.S.C.
conviction for assault with the intent to commit murder. Both      § 2254(e)(1). We review the district court’s decision to deny
the prosecution’s application for leave to appeal and Allen’s      a writ of habeas corpus de novo. Gonzales v. Elo, 233 F.3d
application for leave to cross-appeal were subsequently            348, 352 (6th Cir. 2000).
denied by the Michigan Supreme Court.
                                                                   B. Does a state postconviction motion claiming
   On remand to the trial court, Allen pleaded nolo contendere        ineffective assistance of appellate counsel restart
to a charge of manslaughter. The Michigan Court of Appeals            AEDPA’s statute of limitations?
affirmed her manslaughter conviction and sentence on
September 23, 1997. Allen did not seek leave to appeal this            AEDPA imposes a one-year statute of limitations for
decision to the Michigan Supreme Court.                            habeas petitions that challenge state-court judgments. The
                                                                   relevant section provides as follows:
  She later filed a motion for relief from judgment in the trial
court on September 28, 1998, seeking resentencing on the               (1) A 1-year statute of limitations shall apply to an
assault charge. The trial court denied Allen’s motion. She             application for a writ of habeas corpus by a person in
then filed a delayed application for leave to appeal, which was        custody pursuant to the judgment of a State court. The
denied by both the Michigan Court of Appeals and the                   limitation period shall run from the latest of—
Michigan Supreme Court. The Michigan Supreme Court
denied Allen’s motion for reconsideration on October 30,                 (A) the date on which the judgment became final by
2000.                                                                    the conclusion of direct review or the expiration of
                                                                         time for seeking such review . . . .
  Allen filed her petition for a writ of habeas corpus in the
district court almost a year later, on October 22, 2001. The       28 U.S.C. § 2244(d). AEDPA further provides, however, that
petition challenges the constitutionality of her conviction and    the statute of limitations is tolled for “[t]he time during which
sentence on the assault charge. She does not, however,             a properly filed application for State post-conviction or other
challenge the constitutionality of either the subsequent plea of   collateral review with respect to the pertinent judgment or
                                                                   claim is pending . . . .” 28 U.S.C. § 2244(d)(2).
No. 03-1078                              Allen v. Yukins     5    6     Allen v. Yukins                               No. 03-1078

  1.   When did direct review of Allen’s assault                    If Allen’s conviction became final on November 18, 1997,
       conviction conclude?                                       then AEDPA’s statute of limitations would have begun
                                                                  running the next day, November 19, 1997. See Fed. R. Civ.
   The timeliness of Allen’s petition turns on when the           P. 6 (“In computing any period of time prescribed or allowed
judgment in her state case became final, thereby starting         by these rules, by the local rules of any district court, by order
AEDPA’s one-year limitations period. According to the             of court, or by any applicable statute, the day of the act, event,
district court, the triggering event occurred when the            or default from which the designated period of time begins to
Michigan Court of Appeals affirmed Allen’s manslaughter           run shall not be included.”). The statutory period would then
conviction and sentence on September 23, 1997. The district       have been tolled from the date that Allen filed her motion for
court reasoned that Allen’s conviction became final 56 days       relief from judgment, September 28, 1998. See 28 U.S.C.
later, on November 18, 1997, when her time to appeal to the       § 2244(d)(2). At that time, 51 days would have remained of
Michigan Supreme Court expired. See Michigan Court                the one-year limitations period.
Rule 7.302(C)(2).
                                                                    The state postconviction review process continued until
   Although Allen’s brief is not clear on this point, she         October 30, 2000, when the Michigan Supreme Court denied
appears to argue that her conviction was actually final much      Allen’s motion for reconsideration. See Carey v. Saffold,
earlier, on October 14, 1994, when the Michigan Supreme           536 U.S. 214, 219-20 (2002) (concluding that an application
Court denied her application for leave to cross-appeal the        for state postconviction relief is pending, and the federal
Court of Appeals’s decision affirming her assault conviction.     statute of limitations is therefore tolled, “as long as the
She argues for this earlier date in the apparent belief that it   ordinary state collateral review process is ‘in continuance’”).
bolsters her contention that equitable tolling should be          After Allen’s motion was denied, the statute of limitations
applied. See Part II.C.1. below. Because Allen’s conviction,      would have continued to be tolled during the 90 days in
under this theory, would have been final prior to the             which Allen could have sought a writ of certiorari from the
enactment of AEDPA, Allen’s time to file her habeas petition      United States Supreme Court. See Abela v. Martin, 348 F.3d
would have expired on April 24, 1997. See Austin v.               164, 172-73 (6th Cir. 2003) (en banc). That 90-day period
Mitchell, 200 F.3d 391, 393 (6th Cir. 1999) (holding that         would have expired on January 28, 2001, causing the federal
petitioners whose convictions became final before the             statute of limitations to resume running the next day, on
enactment of AEDPA had a one-year grace period after              January 29, 2001. With 51 days remaining in the statutory
AEDPA’s effective date to file their federal habeas petitions).   period, Allen would have had until March 20, 2001 to file her
Allen, however, did not file her habeas petition until            habeas petition in the district court. But Allen did not file her
October 22, 2001, approximately four years and six months         habeas petition until October 22, 2001, approximately seven
later.                                                            months later.
  We do not have to decide, however, whether the district           Thus, whether the direct-review process concluded when
court was correct in concluding that Allen’s conviction did       the Michigan Court of Appeals affirmed Allen’s assault
not become final until November 18, 1997. Even giving             conviction, or when that court subsequently affirmed her
Allen the benefit of that later date, her petition was still      manslaughter conviction, the result is the same: Allen’s
untimely.                                                         petition was untimely. We therefore will assume without
No. 03-1078                               Allen v. Yukins      7    8      Allen v. Yukins                             No. 03-1078

deciding that the district court’s analysis was correct, and that   appellate counsel tolls, but does not restart, AEDPA’s one-
Allen’s conviction became final on November 18, 1997.               year statute of limitations. Allen therefore filed her habeas
                                                                    petition seven months late, unless she is entitled to the
  2.   Does a state postconviction motion claiming                  equitable tolling of AEDPA’s statutory period.
       ineffective assistance of appellate counsel
       restart the one-year limitations period?                     C. Is Allen entitled to the equitable tolling of
                                                                       AEDPA’s one-year statute of limitations?
   In an attempt to demonstrate that her petition was in fact
timely, Allen argues that a state postconviction motion               Because AEDPA’s one-year statute of limitations is not
claiming ineffective assistance of appellate counsel should be      jurisdictional, a petitioner who misses the deadline may still
considered part of the state’s direct-review process. Under         maintain a viable habeas action if the court decides that
this theory, Allen’s habeas petition would have been timely         equitable tolling is appropriate. Dunlap v. United States, 250
because the state courts did not finally dispose of her             F.3d 1001, 1007 (6th Cir.), cert. denied, 122 S.Ct. 649 (2001).
postconviction motion, which claimed ineffective assistance         “The petitioner bears the burden of demonstrating that he [or
of appellate counsel, until October 30, 2000, less than one         she] is entitled to equitable tolling.” McClendon, 329 F.3d at
year before Allen filed her habeas petition in federal court.       494. In a case like the present one, where the facts are
Allen relies on this court’s decision in Payton v. Brigano,         undisputed and the district court decides as a matter of law
256 F.3d 405 (6th Cir. 2001), in which this court observed in       that equitable tolling does not apply, this court reviews the
a footnote that, under Ohio law, a state postconviction motion      district court’s decision de novo. Dunlap, 250 F.3d at 1007-
claiming ineffective assistance of appellate counsel is             08 n.2.
considered part of the state’s direct-review process. Id. at 409
n.4.                                                                 A court must consider the following factors in deciding
                                                                    whether equitable tolling should apply:
  The argument she raises, however, was rejected in
McClendon v. Sherman, 329 F.3d 490 (6th Cir. 2003), where               (1) the petitioner’s lack of notice of the filing
the petitioner was a Michigan state prisoner, as is Allen. In           requirement; (2) the petitioner’s lack of constructive
McClendon, this court stated: “We reject McClendon’s                    knowledge of the filing requirement; (3) diligence in
contention that whenever a prisoner raises an allegation in his         pursuing one’s rights; (4) absence of prejudice to the
state post-conviction proceedings that he was denied the                respondent; and (5) the petitioner’s reasonableness in
effective assistance of counsel on direct appeal, his conviction        remaining ignorant of the legal requirement for filing his
does not become final until those state post-conviction                 claim.
proceedings have ended.” Id. at 493. The McClendon court
emphasized that, even in the unique context of Ohio law,            Id. at 1008. “This list of factors is not necessarily
“upon the filing of an ineffective assistance claim in state        comprehensive, and not all factors are relevant in all cases.”
court, the statute of limitations is not restarted, but merely      Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003). This
tolled.” Id. at 494.                                                court has also emphasized that “[a]bsence of prejudice is a
                                                                    factor to be considered only after a factor that might justify
  McClendon clearly holds that a state petition for                 tolling is identified.” Id.
postconviction review claiming ineffective assistance of
No. 03-1078                               Allen v. Yukins      9    10    Allen v. Yukins                              No. 03-1078

  1.   Allen’s lack of actual or constructive                          Even assuming that Allen’s conviction did not become final
       knowledge of the filing requirement                          until November 18, 1997, as held by the district court, she
                                                                    still had notice of the limitations period. The AEDPA statute
   Allen first contends that she is entitled to equitable tolling   plainly states that the one-year statute of limitations runs from
because she lacked actual or constructive knowledge of the          the “conclusion of direct review” and that the statutory period
filing requirement. This court considered a similar situation       is tolled during the time when a motion for state
in McClendon, where the petitioner’s conviction became final        postconviction review is pending. 28 U.S.C. §§ 2244(d)(1)-
in August of 1995, before the enactment of AEDPA on                 (2). These statutory provisions clearly explained to Allen
April 24, 1996. 329 F.3d at 493. But McClendon did not file         how AEDPA’s statute of limitations would apply to her case.
his habeas petition until November of 2000, eleven months           Notice by means of a statute, moreover, is certainly as
after this court’s decision in Austin v. Mitchell, 200 F.3d 391     adequate as notice through a published court opinion.
(6th Cir. 1999). McClendon, 329 F.3d at 492. The Austin
court held that petitioners whose convictions became final            Allen, however, contends that confusion existed about the
before the enactment of AEDPA had until April 24, 1997 to           application of AEDPA’s statutory period. According to
file their habeas petitions. This court in McClendon                Allen,
concluded that the decision in Austin informed McClendon
that the time for filing his habeas petition had lapsed, and that     [i]n light of the fact that the court’s [sic] were having
McClendon had shown a lack of diligence by waiting eleven             difficulty in interpreting and applying the statute of
months after Austin was decided before filing his habeas              limitations for inmates whose convictions occurred
petition. Id. at 495. McClendon, in other words, had                  before the enactment of AEDPA, it can hardly be said
constructive knowledge of the filing requirement through a            that inmates themselves should have known how the
published opinion of this court.                                      statute would operate.

   As discussed above, Allen’s conviction became final either       But the district court explained the flaw in Allen’s argument
prior to the enactment of AEDPA or, as the district court           as follows:
concluded, on November 18, 1997, more than a year after
AEDPA’s effective date. Allen had notice of AEDPA’s one-              The law was somewhat unsettled as [to] petitioners
year statute of limitations either way. If her conviction             whose convictions became final before the effective date
became final prior to the enactment of AEDPA, then she was            of AEDPA. This Court is not aware, however, of the law
on notice of the limitations period when this court decided           being unsettled regarding when the one year statute of
Austin. But Allen contends that Austin provided insufficient          limitations would begin running for petitioners such as
notice because it was not decided until 1999 and therefore            Allen, whose convictions became final after the effective
“did absolutely nothing for inmates such as Petitioner,               date of AEDPA.
because they could do nothing retroactively to file or toll the
running of the statute.” To the contrary, “a reasonably                Because of this court’s decision in Austin and AEDPA’s
diligent effort to file within a reasonably quick time [after       clear provisions regarding the statute of limitations, Allen
Austin was decided] might have entitled [Allen] to equitable        cannot claim a lack of constructive knowledge regarding the
tolling[,]” despite the fact that the statutory period would        filing deadline. Even if Allen lacked actual knowledge of the
already have lapsed. McClendon, 329 F.3d at 495.                    relevant provisions of AEDPA, this court has repeatedly held
No. 03-1078                               Allen v. Yukins     11    12   Allen v. Yukins                              No. 03-1078

that “ignorance of the law alone is not sufficient to warrant       from the conclusion of direct review.                28 U.S.C.
equitable tolling.” Rose v. Dole, 945 F.2d 1331, 1335 (6th          § 2244(d)(1)(A). The advice of the attorney, therefore, could
Cir. 1991). We therefore conclude that Allen’s purported lack       not have affected Allen’s federal rights. Even if Allen had
of actual or constructive knowledge does not make equitable         followed the attorney’s suggestion and delayed her decision
tolling appropriate.                                                of whether to appeal the pretrial order, the federal statute of
                                                                    limitations still would not have started until the conclusion of
  2.   Allen’s lack of diligence in pursuing her                    both the trial proceedings and direct review.
       rights
                                                                      The second letter to Allen from her attorney is dated
   Allen next contends that equitable tolling is appropriate        March 24, 1997, which was after Allen was sentenced on the
because she was diligent in pursuing her rights. Using the          manslaughter charge, but before Allen had appealed that
district court’s analysis of the date on which Allen’s              conviction and sentence to the Michigan Court of Appeals.
conviction became final, however, she filed her habeas              In the second letter, Allen’s attorney states: “I know you have
petition approximately seven months late. Under the                 asked about federal habeas corpus relief. I’m not an expert on
alternative analysis, her petition would have been filed            that procedure, but it would seem to me that you are a long
approximately four years and six months late. Even giving           way from exhausting your state court remedies, a prerequisite
Allen the benefit of the shorter period, she still has offered no   typically to federal relief.” Allen contends that the attorney’s
adequate reason for the delay.                                      “lack of knowledge of the statute of limitations” is a factor
                                                                    that supports the application of equitable tolling in this case.
   Allen contends, however, that one reason for her delay is
that she received mistaken advice contained in two letters            This court has held, however, that a petitioner’s reliance on
written to her by her attorney. The first is dated                  the unreasonable and incorrect advice of his or her attorney is
September 20, 1995, when the cases of Allen’s codefendants          not a ground for equitable tolling. Jurado v. Burt, 337 F.3d
were still pending in the Michigan Supreme Court. Allen’s           638, 644-45 (6th Cir. 2003). Although not directly on point,
case had returned to the trial court, where she eventually pled     Jurado suggests that equitable tolling is not appropriate in
nolo contendere to a charge of manslaughter. In the first           this case. In Jurado, the attorney (unintentionally) misled the
letter, the lawyer advised Allen to wait and see how the            petitioner; in the present case, Allen’s attorney simply
Supreme Court decided her codefendants’ cases before she            admitted that he was not an expert in federal habeas
decided whether to appeal a pretrial order in her remanded          procedures. The advice that Allen’s attorney did provide,
proceeding.                                                         moreover, was correct: Allen could not file a habeas petition
                                                                    until she had exhausted her state remedies.                 See
   Assuming, once again, that Allen’s conviction was not final      28 U.S.C.§ 2254(b)(1) (“An application for a writ of habeas
until soon after the Michigan Court of Appeals affirmed her         corpus on behalf of a person in custody pursuant to the
manslaughter conviction and sentence, the attorney’s advice         judgment of a State court shall not be granted unless it
to Allen in the first letter is not relevant to Allen’s delay in    appears that—(A) the applicant has exhausted the remedies
filing her federal habeas petition. At the time the attorney        available in the courts of the State . . . .”).
wrote the letter, Allen had not yet pled guilty to manslaughter,
much less started the process of direct review. AEDPA,                If equitable tolling was not appropriate in Jurado, where
however, clearly states that the statute of limitations runs        the petitioner detrimentally relied on the unintentionally
No. 03-1078                                Allen v. Yukins     13    14    Allen v. Yukins                              No. 03-1078

incorrect advice from his attorney, then tolling is certainly not    D. Does Allen’s claim of actual innocence allow her
appropriate here, where Allen’s attorney simply admitted that           to circumvent AEDPA’s statute of limitations?
he lacked the relevant legal knowledge and gave Allen advice
that was, in fact, correct. The attorney’s second letter to            Allen finally contends that, even if her habeas petition was
Allen therefore provides no basis for the application of             untimely, her claims should still be considered because she is
equitable tolling.                                                   actually innocent of the assault-with-the-intent-to-commit-
                                                                     murder charge. Although one district court within this circuit
  3.   Length of Allen’s delay in filing her habeas                  has held that the United States Constitution requires an
       petition                                                      actual-innocence exception to AEDPA’s statute of
                                                                     limitations, see Holloway v. Jones, 166 F. Supp. 2d 1185,
  Allen also claims that she is entitled to equitable tolling        1190 (E.D. Mich. 2001), this court has never endorsed that
because the seven-month delay between the conclusion of the          view. One case that provides useful guidance, however, is
state postconviction proceedings and the time she filed her          Whalen v. Randle, 2002 WL 409113 (6th Cir. March 12,
habeas petition was reasonable. But this court has declined to       2002) (unpublished opinion), where this court declined to
apply equitable tolling where the delay was far less than            decide whether an actual-innocence exception exists because
seven months. See, e.g., Cook v. Stegall, 295 F.3d 517, 518          the petitioner in that case was “unable to demonstrate that he
(6th Cir. 2002) (concluding that equitable tolling was not           was actually innocent of the charges for which he was
appropriate where the petitioner filed his habeas petition one       convicted.” Id. at *7.
month late); Dunlap v. United States, 250 F.3d 1001, 1010
(6th Cir. 2002) (holding that the petitioner was not entitled to       Although the Whalen court declined to adopt an actual-
equitable tolling where he filed his habeas petition more than       innocence exception, the court suggested the likely
two months late). In light of Cook and Dunlap, the length of         requirements of such a claim:
Allen’s delay does not support the application of equitable
tolling; in fact, the length of her delay actually suggests that       Other circuits that have considered such an exception
equitable tolling is not appropriate in this case.                     have set a very high bar for actual innocence claims,
                                                                       since a substantial claim that constitutional error has
  4.   Lack of prejudice to the respondent                             caused the conviction of an innocent person should be
                                                                       extremely rare. The exception requires petitioner to
  Allen finally argues that equitable tolling is appropriate           “show that it is more likely than not” that no reasonable
because the state has not been prejudiced by the delay. As             juror would have found [him] guilty beyond a reasonable
noted above, however, this court has held that the “[a]bsence          doubt in light of all the evidence. The petitioner must
of prejudice is a factor to be considered only after a factor that     produce evidence of innocence so strong that the court
might justify tolling is identified.” Vroman v. Brigano,               can not “have confidence in the outcome of the trial
346 F. 3d at 605. Because Allen has failed to demonstrate the          unless the court is also satisfied that the trial was free of
existence of a factor that justifies tolling, we may not consider      nonharmless constitutional error.”
the alleged lack of prejudice.
                                                                     Id. at *6 (citations omitted).
No. 03-1078                              Allen v. Yukins     15    16    Allen v. Yukins                              No. 03-1078

  In the present case, Allen first contends that the evidence        Anastasia’s affidavit in essence states that (1) Allen did not,
presented at trial was insufficient to demonstrate that she        in the presence of Anastasia, encourage Light to shoot
aided and abetted the gunman, Ronald Light, in committing          Carson, and (2) Allen and Anastasia did not jointly encourage
the crime of assault with the intent to commit murder. But         Light to shoot Carson. But the affidavit does not eliminate
this evidence was actually presented to a jury, which found        the possibility that Allen, outside of the presence of
Allen guilty. Allen therefore cannot credibly contend that no      Anastasia, encouraged Light to shoot Carson. Anastasia’s
hypothetical reasonable juror, after hearing the trial evidence,   affidavit is therefore insufficient to demonstrate actual
would have found Allen guilty beyond a reasonable doubt; an        innocence.
entire jury did exactly that.
                                                                     Light’s affidavit, on the other hand, has the potential to
  Beyond the trial evidence, Allen also claims that affidavits     exculpate Allen. As the district court noted, however,
by her codefendants, Anastasia Allen and Light, demonstrate        postconviction statements by codefendants are inherently
her innocence. Her sister Anastasia’s affidavit states:            suspect because codefendants may try to assume full
                                                                   responsibility for the crime without any adverse
  1. That I, Anastasia Allen, did not hear Charmel Allen           consequences. But Allen contends that the district court’s
  ask, nor encourage, instigate, express nor imply to              analysis was incorrect because “Mr. Light has effectively
  Ronald Light that she desired him to assault Brian               deprived himself of any opportunity to seek legal recourse for
  Carson, and;                                                     his release by signing the affidavit and disclosing the truth.”
                                                                   The flaw in Allen’s argument, however, is that Light’s
  2. That I, Anastasia Allen and Charmel Allen never               affidavit exculpates Allen, but does not actually inculpate
  discussed, planned nor intended for Ronald Light to              Light in any way. Thus, the district court correctly concluded
  assault Brian Carson before, during, after nor in the            that Light’s affidavit was inherently suspect because Light
  presence [sic].                                                  could have signed the affidavit in order to help his
                                                                   codefendant Allen without endangering his own interests.
In a similar vein, Light’s affidavit reads:
                                                                      Aside from its lack of reliability, Light’s affidavit is
  1. That I, Ronald Light, did not receive any assistance,         insufficient to demonstrate that Allen is innocent because
  encouragement, nor counseling from Charmel C. Allen,             Light’s assertions are inconsistent with the evidence presented
  and;                                                             at trial. According to the Michigan Court of Appeals, the
                                                                   evidence introduced at trial demonstrated the following:
  2. That there was not a common design or purpose
  between Charmel Allen and I, and;                                  • On the date of the incident, Allen could not account for
                                                                       $1,200 of her ex-boyfriend’s money;
  3. That Charmel Allen and I did not share any criminal
  intent on the assault against Brian Carson, and;                   • Allen “orchestrated the plan to bring Anastasia and Light
                                                                       to Wallace’s and Carson’s apartment”;
  4. That no advice or advisement was given to me by
  Charmel Allen during, before, in between nor after the             • After arriving at the apartment, Allen “coaxed Carson
  assault on Brian Carson.                                             into unlocking his door”;
No. 03-1078                              Allen v. Yukins    17    18   Allen v. Yukins                           No. 03-1078

  • Allen, Anastasia, and Light then “forcibly entered” the       question of whether the Constitution requires an actual-
    apartment;                                                    innocence exception to [28 U.S.C.] § 2244(d)(1).” Id. at *7.
  • “[W]hile Light pointed the gun at Carson and Wallace,                            III. CONCLUSION
    [Allen] demanded money.”
                                                                    For all of the reasons set forth above, we AFFIRM the
We must presume that these factual findings by the Michigan       judgment of the district court.
Court of Appeals are correct unless Allen rebuts that
presumption with clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
  Light’s affidavit essentially asserts that Allen never
encouraged him to participate in either the attempt to get
money from Carson and Wallace or the shooting. This
assertion is inconsistent with the evidence presented at trial
demonstrating that Allen, not Light, had the motive to obtain
money from Carson and Wallace. Light’s affidavit is also
contrary to the Michigan Court of Appeal’s finding that Allen
“orchestrated the plan to bring Anastasia and Light to
Wallace’s and Carson’s apartment.”
  This court noted in Whalen that the actual-innocence
exception “requires petitioner to ‘show that it is more likely
than not’ that no reasonable juror would have found [him]
guilty beyond a reasonable doubt in light of all the evidence.”
2002 WL at *6 (citing Schlup v. Delo, 513 U.S. 298, 327
(1995)). In the present case, Allen’s evidence of her alleged
innocence consists of two postconviction affidavits from her
codefendants. One affidavit is facially insufficient to
establish that Allen is innocent; the other is inherently
unreliable and contradicted by the evidence presented at trial.
In light of the foregoing, we conclude that a reasonable juror
could easily find beyond a reasonable doubt that Allen is
guilty of assault with the intent to commit murder.
  Because the affidavits are legally insufficient to establish
that Allen is actually innocent of the assault charge, we will
follow the lead of the Whalen court and “decline to reach the
