           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Jurado v. Burt                              No. 02-1133
     ELECTRONIC CITATION: 2003 FED App. 0243P (6th Cir.)
                  File Name: 03a0243p.06                                 ATTORNEY GENERAL, CORRECTIONS DIVISION,
                                                                         Lansing, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                                             _________________
                  FOR THE SIXTH CIRCUIT
                    _________________                                                            OPINION
                                                                                             _________________
 JOSE JURADO, JR.,                X                                        JULIA SMITH GIBBONS, Circuit Judge. Jose Jurado, a
          Petitioner-Appellant, -                                        Michigan prisoner, appeals from the order of the district court
                                   -                                     dismissing his petition for a writ of habeas corpus as time-
                                   -   No. 02-1133                       barred under the applicable one-year statute of limitations set
            v.                     -
                                    >                                    forth in the Antiterrorism and Effective Death Penalty Act of
                                   ,                                     1996 (AEDPA). Jurado concedes that his petition was
 SHERRY BURT ,                     -                                     untimely under AEDPA. He argues, however, that equitable
         Respondent-Appellee. -                                          tolling should apply to the nineteen months during which he
                                  N                                      was investigating and preparing an application for state post-
       Appeal from the United States District Court                      conviction relief, the filing of which would have tolled
    for the Eastern District of Michigan at Ann Arbor                    AEDPA’s limitations period. For the following reasons, we
   No. 01-60045—Marianne O. Battani, District Judge.                     reject this argument and affirm the district court’s decision.

                   Submitted: June 11, 2003                                                            I.

              Decided and Filed: July 24, 2003                             On October 15, 1992, a jury convicted Jurado of criminal
                                                                         sexual conduct and assault with intent to do great bodily harm
        Before: MOORE and GIBBONS, Circuit Judges;                       less than murder. Jurado then pled guilty to being a second
             SCHWARZER, Senior District Judge.*                          felony offender. He was sentenced to concurrent prison terms
                                                                         of fifty to one hundred years for the criminal sexual conduct
                      _________________                                  conviction and ten to fifteen years for the assault conviction.
                                                                         Jurado exhausted his direct appeals in Michigan’s appellate
                           COUNSEL                                       courts as of December 27, 1995. For AEDPA purposes,
                                                                         Jurado’s conviction became final on March 27, 1996, after the
 ON BRIEF: Sarah E. Hunter, Birmingham, Michigan, for                    ninety-day period during which Jurado could have filed a
Appellant. Debra M. Gagliardi, OFFICE OF THE                             petition for certiorari in the Supreme Court of the United
                                                                         States seeking direct review of his conviction. See, e.g.,
                                                                         Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
                                                                           AEDPA establishes a one-year statute of limitations period
    *
     The Honorable William W Schwarzer, Senior United States District    for § 2254 petitions. See 28 U.S.C. § 2244(d). The one-year
Judge for the Northern District of California, sitting by designation.

                                  1
No. 02-1133                              Jurado v. Burt      3    4    Jurado v. Burt                               No. 02-1133

period begins to run from the latest of four circumstances, one   habeas relief because he was investigating and researching
of which is “the date on which the judgment became final by       claims for his request for state post-conviction relief during
the conclusion of direct review or the expiration of the time     the approximately nineteen months that elapsed between
for seeking such review.” 28 U.S.C. § 2244(d)(1). AEDPA           April 24, 1996 (the start of the one-year grace period) and
became effective on April 24, 1996. Because Jurado’s              November 12, 1997 (the date he filed an application for state
conviction became final before AEDPA was enacted, he had          post-conviction relief). Alternatively, he argued that his
a one-year grace period, lasting until April 24, 1997, in which   request for state post-conviction relief was “pending” during
to file his habeas petition. Cook v. Stegall, 295 F.3d 517, 519   that time under the meaning of the statute, such that the
(6th Cir.), cert. denied, 123 S.Ct. 699 (2002).                   statute tolled the period for filing for habeas relief.
  The one-year period of limitations is tolled by the amount         The district court disagreed. It dismissed Jurado’s habeas
of time that “a properly filed application for State              petition with prejudice, holding that equitable tolling did not
post-conviction or other collateral review with respect to the    apply and that the petition was untimely under the statute.
pertinent judgment or claim is pending” in state court. See 28    The district court held that an application for state post-
U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226-        conviction relief must be filed in order to be “pending” for the
27 (10th Cir. 1998) (“the one year grace period would be          purposes of tolling under 28 U.S.C. § 2244(d)(2). Further, it
tolled by any time spent pursuing properly filed                  noted that a motion for state post-conviction review that is
post-conviction proceedings”). Jurado did not, however, file      filed following the limitations period for seeking federal
an application for state post-conviction review within the one-   habeas relief cannot toll that period because there is no period
year period.                                                      remaining to be tolled. See Webster v. Moore, 199 F.3d 1256,
                                                                  1259 (11th Cir. 2000). The district court declined to toll the
  Rather, he filed an application for state post-conviction       statute during the period in which Jurado’s counsel was
review in November 1997, approximately one year and seven         investigating potential claims, attempting to discover facts to
months after the one-year grace period began. Jurado retained     support his claims, and reviewing materials, because no
his current counsel in the spring of 1996 to assist him in        application for state post-conviction relief had been filed
seeking state post-conviction relief under M.C.R. § 6.500 et      during those time periods. The district court also noted that
seq. Through counsel, he filed a motion for relief from           Jurado had failed to allege specific facts as to how he had
judgment on November 12, 1997. The trial court denied the         “pursued” his state post-conviction relief claims during the
motion on the merits and then denied Jurado’s motion for          nineteen-month period.
reconsideration. Jurado’s subsequent appeals to the state
courts were denied, and the Michigan Supreme Court denied            Jurado then filed a motion for reconsideration and attached
his delayed application for leave to appeal on February 29,       an affidavit from his counsel, Sarah E. Hunter. Hunter
2000.                                                             described her work on Jurado’s case. She asserted that she
                                                                  obtained Jurado’s file from trial counsel on April 22, 1996,
  Almost one year later, on February 28, 2001, Jurado filed       and “analyzed his case by looking at every issue my client
a petition for writ of habeas corpus pursuant to 28 U.S.C.        identified.” She “did legal research as to the viability of each
§ 2254 in the United States District Court for the Eastern        issue, and spoke with witnesses and/or experts as needed.”
District of Michigan. In his habeas petition, Jurado argued       She made the following statements about her understanding
that equitable tolling should apply to save his petition for      of AEDPA’s statute of limitations:
No. 02-1133                                Jurado v. Burt         5   6     Jurado v. Burt                                No. 02-1133

  In preparing Mr. Jurado’s case . . . I understood that              November 1997. She stated that it was her strategy to
  Michigan did not have a statute of limitations as to when           “investigate each and every claim or fact that the client
  a petition for post judgment relief under MCR 6.500 et              indicates was not attended to at trial or on direct appeal,” and
  seq[.] must be filed. However, Michigan did have a rule             that she and her client “honed the issues steadily . . . between
  indicating that only one such motion could be filed.                April of 1997 and November of 1997.” As noted, the one-
  Accordingly, when issues came up that my client and I               year grace period expired on April 24, 1997.
  believed we should look into, we did so. I chose not to
  rush and file “anything” to stop the clock under AEDPA,                The district court denied Jurado’s motion for
  as many of my colleagues did, because I was concerned               reconsideration, stating that “[t]he Court considered in its
  that Mr. Jurado might fail to exhaust his constitutional            original opinion the discovery and research accomplished by
  claims and fail to try to develop the factual predicates for        counsel. The details of counsel’s work does not modify the
  those claims in state court. At that time, I was not aware          issues.” It granted a certificate of appealability with respect
  of the case law that would evolve as to the tolling of the          to the issue of equitable tolling, and Jurado timely appealed.
  statute of limitations under AEDPA.
                                                                                                     II.
  At the time, I believed the AEDPA statue of limitations
  was ambiguous as to whether the state court petition was               Jurado concedes that his habeas petition was untimely. He
  “properly filed” or “pending”. I do know that I was                 also now concedes that his motion for state post-conviction
  confused as to whether I would be required to file the              review was not “properly filed” and “pending” within the
  motion in April, and that I determined that I would not             meaning of 28 U.S.C. § 2244(d)(2) during AEDPA’s one-year
  risk filing prematurely in state court just to stop the clock       grace period, such that it did not toll the grace period under
  and risk defaulting federal issues that we had not yet              the statute. Thus, his only claim on appeal is that the doctrine
  analyzed as to their viability. However, I anticipated that         of equitable tolling should apply to his case. We review this
  so long as we were steadily preparing Mr. Jurado’s bid              claim de novo. Dunlap v. United States, 250 F.3d 1001, 1007
  for post conviction relief by investigating potential               (6th Cir. 2001) (where the facts of the case are undisputed and
  claims, we should not file prematurely in state court just          the district court rules as a matter of law that equitable tolling
  to stop the federal clock, as this would not be in the best         is unavailable, this court reviews de novo).
  interests of my client and would not serve finality in state
  court.                                                                 Jurado bears the burden of demonstrating that he is entitled
                                                                      to equitable tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th
Hunter’s affidavit chronicled her activities related to Jurado’s      Cir. 2002). The doctrine is used sparingly by federal courts.
case during the nineteen-month period. She asserted that she          Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
located and arranged meetings with various expert witnesses           209 F.3d 552, 560 (6th Cir. 2000) (citations omitted).
(including a toxicologist, a neurologist, and a psychologist);        “Typically, equitable tolling applies only when a litigant’s
sought an advisory opinion on an undisclosed ethical                  failure to meet a legally-mandated deadline unavoidably arose
question; and attempted to obtain additional evidence, such as        from circumstances beyond that litigant’s control.” Id. at
the nurses’ notes from the victim’s hospital stay. She                560-61. The Supreme Court has explained that “[w]e have
indicated that she drafted and revised the motion for state           allowed equitable tolling in situations where the claimant has
post-conviction relief over a five-month period, from July to         actively pursued his judicial remedies by filing a defective
No. 02-1133                                 Jurado v. Burt       7    8       Jurado v. Burt                                      No. 02-1133

pleading during the statutory period, or where the                    AEDPA’s one-year limitations period. Rather, they made a
complainant has been induced or tricked by his adversary’s            tactical decision to continue investigating claims for his state
misconduct into allowing the filing deadline to pass.” Irwin          post-conviction relief application although they were aware
v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).                 that his time in which to file for habeas relief would expire.
However, “[w]e have generally been much less forgiving . . .
where the claimant failed to exercise due diligence in                   Where the litigant does not claim lack of knowledge or
preserving his legal rights.” Id.; cf. Baldwin County Welcome         notice of the filing requirement, this court’s inquiry is focused
Ctr. v. Brown, 466 U.S. 147, 151 (1984) (“One who fails to            on examining his diligence in pursuing his rights and the
act diligently cannot invoke equitable principles to excuse           reasonableness of his ignorance of the effect of his delay. See
that lack of diligence.”). “Absent compelling equitable               Andrews, 851 F.2d at 151. Jurado contends that he was
considerations, a court should not extend limitations by even         diligent in pursuing his rights. In support, he offers Hunter’s
a single day.” Graham-Humphreys, 209 F.3d at 561.                     affidavit, which details her work on his case. She states that
                                                                      she received his file on April 22, 1996, and met with Jurado
  This court determines whether to equitably toll AEDPA’s             and his family several times thereafter. She sought an
statute of limitations using the five-factor test set forth in        opinion from the state bar regarding an undisclosed ethics
Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). Dunlap,            question and received the opinion on June 20, 1996. She
250 F.3d at 1010. The court considers: (1) the petitioner’s           contacted an undisclosed expert in June 1996, met with him
lack of notice of the filing requirement; (2) the petitioner’s        in October 1996, and determined in December 1996 that he
lack of constructive knowledge of the filing requirement;             would not benefit Jurado’s case. In January 1997, Hunter
(3) diligence in pursuing one’s rights; (4) absence of prejudice      spoke to a toxicologist about the effects of the drugs that the
to the respondent; and (5) the petitioner’s reasonableness in         victim received in the emergency room where the victim gave
remaining ignorant of the legal requirement for filing his            statements about the crime. She also spoke to a psychologist
claim. Id. at 1008. This list of factors is not necessarily           about the effect of drugs, alcohol, and pain medication on a
comprehensive, and not all factors are relevant in all cases.         person’s ability to remember or contrive. She reviewed the
Miller v. Collins, 305 F.3d 491 (6th Cir. 2002).                      DNA evidence in Jurado’s case but determined that there was
                                                                      no meritorious issue to raise with regard to it. In April 1997,
  In this case, the first two factors – petitioner’s lack of notice   she sent a subpoena to the hospital where the victim was
and lack of constructive knowledge of the filing requirement          treated, in order to obtain nurses’ notes.1 In April 1997,
– weigh against equitable tolling of the limitations period.          AEDPA’s one-year grace period expired. Though aware of
Jurado stated in his brief that he “had to choose between             the language of the statute’s tolling provision, Hunter “chose
prematurely filing a petition for post-conviction relief in state     not to rush” to file the request for state post-conviction relief.
court that was not adequately supported by facts, or waiting           Hunter’s affidavit accounts for the additional seven months
to file until all facts had been reasonably investigated and
evaluated, even if the grace period under AEDPA expired.”
At the time, his counsel “believed it was more important to
                                                                          1
develop Petitioner’s case in accord with standards of                       The hospital declined to honor the subpoena beca use there was no
professional conduct” than it was to comply with AEDPA’s              pending case. As the district court pointed out, Hunter could have filed
statute of limitations, according to his brief. Thus, Jurado          the motion for relief from judgm ent at that time with an affidavit attesting
                                                                      to her unsuccessful attempts to obtain the medical records. The hospital
does not contend that he or his counsel was unaware of                then would have likely provided the records in light of the pending case.
No. 02-1133                               Jurado v. Burt      9    10    Jurado v. Burt                               No. 02-1133

as well. In May 1997, she considered and abandoned an issue        tolling is identified. Baldwin County, 466 U.S. at 152;
related to Jurado’s habitual offender charge. In June, she         Andrews, 851 F.2d at 151.
gave a draft of the motion for post-conviction relief to Jurado
and his family. In July, Hunter revised the draft’s sufficiency       The final factor is petitioner’s reasonableness in remaining
of the evidence argument. Also, she obtained and reviewed          ignorant of the legal requirement for filing his claim.
Jurado’s medical records from Mexico. She attempted to             Jurado’s counsel was aware of the section of AEDPA that
contact several neurologists and spoke to two, Drs. Sid            provides for tolling, 28 U.S.C. § 2244, which states that,
Broder and John Blase. In August 1997, Hunter met with             “[t]he time during which a properly filed application for State
Jurado and they finally determined which issues to raise in the    post-conviction or other collateral review . . . is pending shall
motion for state post-conviction relief. On November 12,           not be counted toward any period of limitation under this
1997, she filed the motion.                                        subsection.” She states that she believed this section was
                                                                   ambiguous as to whether an application that had not been
   Although Jurado’s counsel certainly undertook                   filed with any court was “properly filed” and “pending.” She
investigatory and preparatory actions in Jurado’s case during      “was not aware of the case law that would evolve as to the
the nineteen-month period, these actions did not constitute        tolling of the statute of limitations under AEDPA.” Thus, she
due diligence in pursuit of his rights. Jurado’s trial lasted      “was confused as to whether [she] would be required to file
three days and involved three trial transcripts, plus a fourth     the motion in April.” Id.
transcript where Jurado then pled guilty to being a habitual
offender. The district court found that the case was not              Generally, “a lawyer’s mistake is not a valid basis for
complex and that the factual bases for the three claims raised     equitable tolling.” Whalen v. Randle, 37 Fed. Appx. 113, 120
in the habeas petition (sufficiency of evidence, confrontation     (6th Cir. 2002); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
clause, and ineffective assistance of counsel) “could all have     2001) (“attorney error, miscalculation, inadequate research,
been readily apparent after reading the transcripts.” A            or other mistakes have not been found to rise to the
reasonably diligent attorney could have pursued these claims       ‘extraordinary’ circumstances required for equitable tolling”);
within one year’s time. Arguably, counsel’s activities amount      Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000)
to due (and perhaps excessive) diligence in pursuing every         (attorney’s misreading of AEDPA did not require equitable
possible theory, no matter how feeble. They do not, however,       tolling). “[T]he remedy for negligence by a party’s lawyer is
amount to diligence in pursuing his rights, where counsel was      generally a legal malpractice suit or an ineffective assistance
on notice of AEDPA’s one-year grace period and failed to act       of counsel claim, not forcing the opposing party to defend
within the period. As the district court stated, AEDPA does        against a stale claim.” Whalen, 37 Fed. Appx. at 120 (citing
not convey a right to an extended delay while a habeas             Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999)).
petitioner gathers every possible scrap of evidence that might     Jurado’s brief cites no authority showing that it was
support his claim. See Flanagan v. Johnson, 154 F.3d 196,          reasonable to believe that a motion that was merely being
199 (5th Cir. 1998). Neither does the doctrine of equitable        investigated and drafted was “properly filed.” In view of the
tolling grant such a right.                                        plain language of the statute, this belief was not reasonable.

   The fourth factor, whether respondent was prejudiced by           Accordingly, application of the five-factor test indicates
the delay in filing, is irrelevant here. Absence of prejudice is   that equitable tolling is not appropriate in this case. We
a factor to be considered only after a factor that might justify   therefore affirm the district court’s decision.
