                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 05a0104p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                     X
                             Petitioner-Appellant, -
 SANDRA M. GRIFFIN,
                                                      -
                                                      -
                                                      -
                                                          No. 04-3302
          v.
                                                      ,
                                                       >
 SHIRLEY ROGERS, Warden,                              -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                    No. 99-01127—George C. Smith, District Judge.
                                   Argued: January 27, 2005
                               Decided and Filed: March 3, 2005
                  Before: MERRITT, MOORE, and GILMAN, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Stephen P. Hardwick, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER
COMMISSION, Columbus, Ohio, for Appellant. Thelma Thomas Price, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Stephen P. Hardwick,
PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio,
for Appellant. Thelma Thomas Price, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio,
for Appellee.
         MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN,
J. (pp. 12-13), delivered a separate dissenting opinion.
                                      _________________
                                          OPINION
                                      _________________
        MERRITT, Circuit Judge. Sandra Griffin filed a petition for habeas relief in April of 1997.
In September of 1998, the District Court dismissed her petition without prejudice as she had not
exhausted her state remedies. When she returned to federal court in October of 1999, her re-filed
petition was dismissed as untimely pursuant to the one-year limitations period under 28 U.S.C.
§ 2244(d)(1). In 2002, this Court vacated the District Court’s dismissal of Griffin’s petition and
remanded for further proceedings in order to determine whether the petitioner was entitled to
equitable tolling. Griffin v. Rogers, 308 F.3d 647 (2002). In January of 2004, the District Court,
adopting the Report and Recommendation of the Magistrate Judge, ruled that Griffin was not


                                                1
No. 04-3302            Griffin v. Rogers                                                          Page 2


entitled to equitable tolling and dismissed the case for failure to file within the limitations period.
Griffin timely appealed the District Court’s dismissal.
        In Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002), this Court adopted a stay and abeyance
procedure for habeas petitions that raise both exhausted and unexhausted claims. The exhausted
portions of these petitions were to be stayed while the petitioner returned to state court. These stays
were to be conditioned upon the petitioner’s pursuing state court remedies within a brief interval,
normally 30 days, after the stay is entered and returning to federal court within a similarly brief
interval, normally 30 days after state court exhaustion is completed. Also, in Palmer, this Court
determined that it would be appropriate to apply these stays retroactively to petitioners like Griffin,
whose claims were dismissed rather than stayed.
        When this case was last before this Court, it was unclear whether Griffin had complied with
the 30-day window that Palmer prescribes for pursuing state remedies after a federal dismissal. The
record simply did not include that information. On remand, it was conceded that Griffin did not
proceed to state court for over six months, well beyond the 30-day window suggested by Palmer.
The District Court refused to equitably toll the limitations period as Griffin had not filed within the
30-day time frame. The only issue on appeal is whether the District Court was correct in rejecting
Griffin’s request for equitable tolling.
        While Griffin is not entitled to the mandatory equitable tolling prescribed in Palmer, the
District Court was incorrect to treat the 30-day window as a hard, retroactive deadline that precludes
the court’s consideration of her claims on the merits. Even if Griffin is not entitled to the automatic
equitable tolling under Palmer, she is entitled to relief under this Court’s traditional equitable tolling
analysis. The dismissal of the District Court is therefore REVERSED and the petition is
REMANDED for consideration on the merits.
                                                    I
        This Court thoroughly summarized the factual and procedural history essential to Griffin’s
current appeal in its 2002 opinion:
                In 1990, a trial judge in Ohio state court found Sandra Maxwell Griffin guilty
        of complicity to aggravated murder with specifications, complicity to unlawful
        possession of a dangerous ordnance, complicity to grand theft, and complicity to
        aggravated robbery with a firearm specification. Griffin then obtained new counsel
        and unsuccessfully appealed her case to the Ohio Supreme Court, arguing that the
        trial court had violated her Fifth, Eighth, and Fourteenth Amendment rights by not
        following certain state laws regarding her waiver of trial by jury or by three-judge
        panel and regarding the length of her sentence. She lost her appeals, and her
        conviction became final in 1992.
                The Antiterrorism and Effective Death Penalty Act (AEDPA) became
        effective on April 24, 1996, and prisoners whose state convictions already had
        become final were required to file any petitions for habeas corpus relief within one
        year of that date. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000, cert. denied,
        531 U.S. 1201 (2001). Represented by the Ohio Public Defender's Office, Griffin
        filed for habeas corpus relief on April 22, 1997. The petition was assigned to Judge
        Holschuh. Although in her initial petition Griffin raised just one ground for relief,
        namely the trial court's failure to follow "mandatory statutory requirements of a
        proceeding" in violation of her due process and equal protection rights, J.A. at 16,
        in her reply to the warden's return of writ she expanded her claims. Griffin argued
        that her waiver of trial by jury or by a three-judge panel, as provided under Ohio law,
No. 04-3302           Griffin v. Rogers                                                           Page 3


       was neither knowing nor intelligent and that her sentence exceeded that permitted
       under law. The district court determined that these were "clearly distinct from the
       argument that she presented to the state courts," noted that the new arguments
       "appear to have been procedurally defaulted," and offered Griffin the opportunity to
       demonstrate cause and prejudice before the court would dismiss the claims as
       procedurally defaulted. J.A. at 66-68 (Dist. Ct. Order 3/16/98). Griffin argued that
       the cause of her failure to present the arguments in state court was her counsel's
       ineffective assistance.
               Judge Holschuh ruled that, although ineffective assistance of appellate
       counsel can constitute cause for procedural default, the petitioner must present the
       ineffective assistance claim itself to the state courts before using it to excuse the
       default. Because Griffin had not brought that claim to the state courts, she could not
       yet present it to the federal court in a habeas petition. Judge Holschuh concluded, "If
       she wishes, at some point, to make such an [ineffective assistance] argument here,
       petitioner must present her claim of ineffective assistance of counsel to the state
       courts." J.A. at 99 (Dist. Ct. Order 9/30/98). On September 30, 1998, the court
       denied her petition and dismissed the case without prejudice for her failure "to
       establish cause for her procedural default." J.A. at 101.
308 F.3d at 649-50. After her habeas petition was dismissed, Griffin filed an Application to Reopen
in state court pursuant to Ohio Rule of Appellate Procedure 26(B) in order to pursue her
unexhausted ineffective assistance claim.
       When this case was last before this Court, the record did not indicate when Griffin filed this
Application to Reopen. The current record reflects that Griffin, represented by the Ohio Public
Defender’s Office, filed her Application to Reopen on April 14, 1999, approximately six and one
half months after the District Court’s dismissal on September 30, 1998. J.A. at 216 (Application for
Reopening). This Application was dismissed as untimely by the Ohio Court of Appeals on May 24,
1999. J.A. 229 (Ohio Court of Appeals Judgment). The Ohio Supreme Court dismissed her appeal
without opinion on September 22, 1999.
       After the dismissal of her Application to Reopen, Griffin attempted to return to federal court
to pursue her habeas petition:
               Griffin then returned to Judge Holschuh, filing on October 15, 1999, a habeas
       petition under her previous case number. In her re-filing, she alerted the court to the
       fact that she was filing it "under the original case number," because it merely
       continued her previous attack. She also noted that, because her previous filing had
       been dismissed without prejudice to permit exhaustion, this subsequent filing was not
       a "second or successive" petition prohibited under 28 U.S.C. § 2244(b). J.A. at 102-
       03. In this petition, Griffin also included notice of the claims that she had brought in
       her state Application to Reopen. However, on Friday, October 22, Judge Holschuh
       ordered the clerk to strike Griffin's new filing under the previous case number and
       directed the clerk to file it with a new case number and assign it to a judge using the
       "ordinary selection process." J.A. at 118 (Dist. Ct. Order 10/22/99). Judge Holschuh
       noted that because the previous case had closed and the petitioner had offered no
       grounds to reopen the previous case, the petition should be filed under a different
       case number, and the district judge to which it would then be assigned should
       consider independently whether to entertain the petition or reject it as a second or
       successive petition. Judge Holschuh stated that "[t]he assignment or non-assignment
       of a new civil number to a case is obviously not conclusive on the issue of whether
       the petitioner is entitled to file a second habeas corpus petition," and "[n]othing in
No. 04-3302           Griffin v. Rogers                                                          Page 4


       this order is intended to convey any opinion as to whether the new petition is or is
       not a successive petition or has otherwise been properly filed." J.A. at 117-18.
                Griffin re-filed her second petition on Monday, October 25, and it was given
       a new case number and assigned to Judge Smith. After briefing, Judge Smith
       dismissed the action for failure to file within the one-year limitation period for
       § 2254 actions. The district court noted that when Griffin filed her first habeas
       petition on April 22, 1997, two days before the one-year deadline was to have run,
       363 days of her statute of limitations had lapsed. That petition had been dismissed
       on September 30, 1998. Without knowing the actual date of her state court filing, the
       district court assumed that Griffin immediately filed her state court application and
       that this filing tolled the running of her federal statute of limitations. The district
       court ruled that when the state court application was resolved on September 22,
       1999, Griffin had two days in which to return to federal court. She did not submit her
       second petition until October 15, 1999, after the statute of limitations had run.
       Therefore, the district court dismissed Griffin's petition.
308 F.3d at 650. Griffin then timely appealed, and this Court vacated the dismissal. Griffin, 308
F.3d at 656. This Court determined that the District Court had not applied the correct standard
regarding Griffin’s re-filing. When the District Court dismissed her petition, Griffin did not have
two days remaining under the statutory limitations period. Instead, her statutory window of
opportunity had already expired. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). But, this
Court found that the District Court should have determined whether or not Griffin was entitled to
equitable tolling under Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002). We found that Griffin’s
limitation period should be tolled during the pendency of her original habeas action, 308 F.3d at
651-52, and for the period between her September 1999 state court dismissal and her return to
federal court in October 1999, id. at 655. But, we were unaware of when Griffin actually filed her
Application to Reopen in the Ohio courts. Concluding that Griffin would certainly be entitled to
equitable tolling if she could show filing in accordance with Palmer, we vacated and remanded for
further consideration. Id.
        On remand, Griffin conceded that she had taken over six months to bring her Application
to Reopen, and the District Court determined that she was not entitled to equitable tolling under
Palmer. The District Court, adopting the recommendation of the magistrate, found that Palmer
created a retroactive deadline for habeas petitioners. J.A. 284 (Report and Recommendation)
(“Petitioner has clearly not met the time limits established by Palmer. Strict application of that case
and of the Sixth Circuit’s mandate in this case militate against equitable tolling”).
                                                  II.
         “Because AEDPA’s one-year statute of limitations is not jurisdictional, a petitioner who
misses the deadline may still maintain a viable habeas action if the court decides that equitable
tolling is appropriate.” Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (citing Dunlap v. United
States, 250 F.3d 1001, 1007 (6th Cir. 2001), cert. denied, 534 U.S. 1057 (2001)); see also Young v.
United States, 535 U.S. 43, 49 (2002) (“It is hornbook law that limitations periods are ‘customarily
subject to “equitable tolling.”’) (citations omitted); id. at 49-50 (“Congress must be presumed to
draft limitations periods in light of this background principle.”). In the present case, there are two
ways that equitable tolling could apply. First, in Palmer v. Carlton, this Court adopted a stay-and-
abeyance procedure, which effects a mandatory form of equitable tolling for the narrow group of
cases in which a mixed petition is dismissed near or after the expiration of the AEDPA limitations
period. Our Court has determined that if such a petitioner files any unexhausted claims in state court
within 30 days of dismissal and re-files in federal court within 30 days of exhaustion, the re-filed
petition will automatically be considered timely. If this mandatory equitable tolling does not apply,
No. 04-3302               Griffin v. Rogers                                                                      Page 5


this Court may still equitably toll the limitations period based on the traditional equitable factors as
outlined by this court in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1998).
                                                           A.
        In the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress added a statute
of limitations for habeas corpus petitions providing in relevant part:
         (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
                                                            ***
         (2) The 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.
28 U.S.C. § 2244(d). AEDPA provided no grace period for habeas corpus claims arising from
convictions such as Griffin’s that became final prior to the statute’s enactment. As the failure to
provide such a grace period would have rendered AEDPA unconstitutional, this Circuit provided
a one-year grace period for convictions that became final prior to April 24, 1996, the effective date
of AEDPA. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000), cert. denied, 531 U.S. 1201
(2001) (citing Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21 (1982)). In the present case, Griffin
filed her habeas petition on April 22, 1997, just two days shy of the grace period’s expiration.
         Since AEDPA’s passage, courts have also struggled to determine how to address the
limitations questions of timely-filed habeas petitions raising unexhausted claims. In a pre-AEDPA
decision, Rose v. Lundy, 455 U.S. 509, 522 (1982), the Supreme Court had directed federal courts
that it was proper to dismiss petitions that contained both exhausted and unexhausted claims (“mixed
petitions”). Before AEDPA, such a dismissal permitted plaintiffs to exhaust their remaining state
claims and return to federal court without a time limitation. In Duncan v. Walker, 533 U.S. 167,
181-82 (2001), however, the Supreme Court determined that the AEDPA limitations period does not
toll during the pendency of the habeas petition itself. While in federal court, tolling is allowed only
during the time the petition is pending in state court. Thus, when a case is dismissed pursuant to
Rose, the limitations period generally will have expired, foreclosing the possibility of a timely re-
filing in accordance with § 2244(d)(1). See id.; see also id. at 186 (Breyer, J., dissenting) (pointing
out that district courts take on average 268 days to dismiss petitions on procedural grounds). In
cases like Griffin’s, where the initial petition is filed at the end (or near the end) of the limitations
period, a Rose dismissal will   effectively preclude the possibility of a re-filing consistent with the
AEDPA limitations period.1
       In Duncan, Justice Stevens wrote a concurring opinion joined by Justice Souter to address
the complications arising from Rose and the new AEDPA limitations period. 533 U.S. at 182


         1
           The fact that Griffin did not file her habeas petition until two days before the expiration of the grace period
is essentially irrelevant. Even if Griffin had filed on the effective date of AEDPA with a full year remaining in the
limitations period, the Rose dismissal did not occur until seventeen months after her initial filing. As the limitations
period would not have tolled during the pendency of her initial federal petition, her subsequent re-filing would still be
barred.
No. 04-3302             Griffin v. Rogers                                                                Page 6


(Stevens, J., concurring). Justice Stevens, recognizing the possibility that Congress had
“overlooked” this potential problem, urged the circuit courts to consider two uses of the equitable
powers of the federal courts to ensure that petitioners who invoke the court’s jurisdiction within the
1-year interval prescribed by AEDPA are not barred from having their federal claims heard. Id. at
182-84. First, Justice Stevens suggested that courts confronted with a mixed petition could stay the
proceedings rather than dismiss them completely. Id. at 182-83. Under this stay and abeyance
procedure, courts retain jurisdiction over the exhausted claims, dismiss the unexhausted claims, and
stay the habeas proceedings pending the complete exhaustion of state remedies. Second, Justice
Stevens urged the federal courts to equitably toll the limitations period for petitioners who initially
invoked the court’s jurisdiction during the statutory one-year period. Id. at 183 (“[N]either the
Court’s narrow holding, nor anything in the text or legislative history of AEDPA, precludes a federal
court from deeming the limitations period tolled for such a petition as a matter of equity.”).
         Shortly thereafter, the Second Circuit addressed the issue raised by Justice Stevens. Zarvela
v. Artuz, 254 F.3d 374 (2d Cir. 2001). The petitioner in Zarvela filed his habeas petition with only
two days remaining in the limitations period. Id. at 377. Subsequently, he sought permission to
withdraw the petition without prejudice so that he could exhaust a new claim in the state courts. Id.
The District Court granted his motion. Id. Nine days later, he filed his new claim in state court;
fourteen days after the state appellate decision was rendered, he re-filed his federal habeas petition.
Id. The District Court dismissed his petition as untimely. Id. The Second Circuit held that the
District Court confronted with Zarvela’s mixed petition should have issued a stay rather than grant
the petitioner’s motion to withdraw. Id.at 380, 383 (noting that a stay “will be the only appropriate
course in cases like Zarvela’s where an outright dismissal ‘could jeopardize the timeliness of a
collateral attack.’”) (citing Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)) (emphasis added).
Such a stay, the court ruled, should have been conditioned upon the petitioner’s “prompt initiation
of state court exhaustion and his prompt return to federal court after completion of exhaustion.” 254
F.3d at 376-77. Thus, the appellate court directed district courts prospectively to “explicitly
condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally
30 days, after the stay is entered and returning to federal curt within a similarly brief interval,
normally 30 days     after state court exhaustion is completed.” Without using the language of
equitable tolling,2 the circuit court found that the petitioner was “entitled to have his petition treated
as if it had been stayed, provided his entry to the state courts and his return occurred promptly.”
Finding that the petitioner would have complied with the timeliness conditions of the stay that
should have been granted, the appellate court reversed and remanded for further proceedings.

      In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), this Court endorsed the stay and
abeyance procedure adopted by the Second Circuit in Zarvela. The court wrote:
        The Second Circuit [stay and abeyance] approach is eminently reasonable. It
        addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the
        interests in comity embraced by Lundy, and prevents the potential abuse of the writ
        perpetrated by some petitioners.
Id. They also embraced this procedure’s retroactive application to petitions that had been dismissed
rather than stayed. Id. The petitioner in Palmer had filed his original habeas petition on the last day
of the limitations period. Id. at 779. His motion for voluntary dismissal without prejudice was
granted by the District Court on March 2, 1999. Id. A previously-filed state proceeding was
dismissed on March 22, 1999. Id. The petitioner re-filed his habeas action on May 24, 1999, and


        2
           In fact, the Zarvela court indicated that equitable tolling analysis might have been necessary had the
petitioner’s case not been held to be timely under the stay-and-abeyance procedure. 254 F.3d at 383 & n.6.
No. 04-3302           Griffin v. Rogers                                                         Page 7


the District Court determined that this filing was untimely. Id. On appeal, this Court determined that
the dismissal should be affirmed:
       Nevertheless, adoption of the Second Circuit’s approach in this case would not afford
       Palmer the relief he seeks. Although his state-court remedies were exhausted on
       March 22, 1999, he waited until May 24, 1999, before he returned to federal court
       and filed a second habeas petition. This wait amounted to more than the “normal”
       30-day period suggested by the Second Circuit as a reasonable period for a petitioner
       to return to federal jurisdiction, and the record offers no reason for the two-month
       delay.
Id. at 781-82. As the petitioner waited sixty days after his state court dismissal to re-file his habeas
petition, he would not have complied with the retroactive stay contemplated by the Zarvela court.
        Like the Zarvela court, the Palmer court did not conduct a traditional equitable tolling
analysis. Instead, it simply determined that had the petitioner’s case been stayed conditionally upon
the two 30-day filing windows, the petitioner would not have complied. 276 F.3d at 781-82.
Notably, the court did not indicate that the failure to comply with this “normal” time period was
dispositive. Indeed, the court suggested that an adequate explanation might have excused the delay.
Id. (“[T]he record offers no reason for the two-month delay.”).
        But, Palmer offered no reason for his delay that would have permitted the court to consider
whether equitable tolling was appropriate. Nor could he have. Between the March 2 habeas
dismissal and the May 24 habeas re-filing, the petitioner does not appear to have filed any additional
proceedings in the state court. Instead, the petitioner was relying on a previously-filed state action
that sought declaratory relief on purely state grounds. Id. at 780 (“[T]his pleading did not present
a federal question for review.”); Palmer v. Tennessee Dep’t of Correction, 1998 WL 870534 (Tenn.
Ct. App. 1998), appeal denied (Mar. 22, 1999) (raising Tennessee statutory and Tennessee
constitutional claims but no federal constitutional claims). Palmer was a poor candidate for
equitable tolling not simply because he waited sixty days after his state proceedings were completely
concluded to re-file his federal habeas action, but because he did not bring any federal challenges
whatsoever during this time period.
         In Hargrove v. Brigano, 300 F.3d 717 (6th Cir. 2002), this Court more fully endorsed the
stay-and-abeyance procedure in the context of AEDPA statute of limitations. In Hargrove, the
petitioner sought habeas relief on the grounds of constitutionally insufficient evidence. Id. at 718.
Since the pro se petitioner had never filed an appeal, the District Court dismissed the petition
without prejudice in order for the petitioner to exhaust his state remedies. Id. Yet, rather than
staying the petition, the District Court, acting prospectively, ordered the tolling of the AEDPA
limitations period conditioned on the petitioner’s pursuing his state remedies within 30 days of the
dismissal and returning to federal court within 30 days after exhaustion. Id. The warden challenged
this prospective order of equitable tolling, arguing that the issue was not within the jurisdiction of
the dismissing court. Id. at 719. Instead, the warden argued that equitable tolling should be decided
by the court receiving the subsequent, untimely petition after exhaustion. Id. This Court found that
the District Court’s prospective equitable tolling was reasonable. Id. at 720, 721 (“Although the
district court did not issue a stay in this case, it achieved the same result reached in Zarvela and
approved in Palmer.”).
No. 04-3302               Griffin v. Rogers                                                                      Page 8


        Again, in Hargrove, our court did not actually conduct an “equitable tolling” analysis.3 It
merely recognized that under the retroactive stay-and-abeyance rule of Palmer equitable tolling was
proper as a matter of law for those petitioners whose petitions are dismissed without prejudice for
the purpose of exhausting state claims. As this Court held previously, “Palmer introduces a new
period of mandatory equitable tolling for petitioners who filed their federal habeas petitions within
the statute of limitations but were forced to return to state court to exhaust certain claims.” Griffin,
308 F.3d at 654 (emphasis added). The Zarvela-Palmer-Hargrove line of cases dictates that
regardless of the equities of the situation, the courts will mechanically permit a re-filing that would
have been available had the case been conditionally stayed rather than dismissed.
        In the present case, Griffin is not entitled to the automatic equitable tolling mandated by
Palmer. As her case was dismissed without prejudice on September 30, 1998 prior to both Duncan
and Palmer, the District Court did not use the stay-and-abeyance procedure. Thus, when the case
was dismissed, her AEDPA limitations period had already expired. Had a stay been issued rather
than a dismissal, the stay would normally be conditioned upon her filing of unexhausted claims in
state court within 30 days and returning to federal court within 30 days of exhaustion. But Griffin
did not file her application for delayed appeal with the Ohio courts until April 14, 1999, nearly six
and one half months after her District Court dismissal. As she did not comply with the 30-day
guideline, she is not entitled to mandatory equitable tolling.
                                                           B.
        As the mandatory equitable tolling rule of Palmer is not applicable in the present case, we
turn to the traditional equitable tolling analysis. This Court reviews de novo the District Court’s
decision not to apply equitable tolling. King v. Bell, 378 F.3d 550, 553 (6th Cir. 2004). “Federal
courts have typically extended equitable relief only sparingly.” Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990). In deciding whether equitable tolling should apply, courts in this Circuit
consider the following factors:
         (1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack
         of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s
         rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s
         reasonableness in remaining ignorant of the legal requirement for filing his claim.
Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001) (citing Andrews v. Orr, 851 F.2d 146,
151 (6th Cir. 1988)). These five factors “are not comprehensive, nor is each of the five factors
relevant in all cases.” Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Instead, courts must
consider equitable tolling on a “case-by-case basis.” Id.; King, 378 F.3d at 553.
       In applying the Andrews factors to the present case, the only filing at issue is Griffin’s
application to reopen her direct appeal in the Ohio courts.4 When her petition was dismissed on

         3
            The Hargrove Court did suggest that equitable tolling cases should be based on a consideration of the factors
put forth by the Court in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). See Hargrove, 300 F.3d at 719-20 & n.4. But,
in its resolution of the case, the Court did not analyze these factors. Rather, it applied Zarvela and Palmer to determine
that prospective equitable tolling would operate as a stay and abeyance. Indeed, given the federal courts’ aversion to
issuing advisory opinions, see Keene Corp. v. U.S., 508 U.S. 200, 217 & n.13 (1993), the Hargrove Court could not have
embarked upon an equitable analysis. Hargrove recognizes that the 30-day windows operate as a matter of law in this
Circuit.
         4
          As this Court has found previously, Griffin returned to the federal courts in a timely manner after exhausting
her claims in state court. Griffin, 308 F.3d at 655. Her application to reopen was dismissed on May 24, 1999. The
Supreme Court dismissed her appeal on September 22, 1999, and Griffin re-filed her habeas petition on October 15,
1999.
No. 04-3302           Griffin v. Rogers                                                         Page 9


September 30, 1998, her statutory limitations period under AEDPA had already expired. See
Duncan, 533 U.S. at 181-82. But, under the operation of Palmer, if Griffin had returned to state
court within 30 days, her petition would proceed to the merits. Thus, in applying the five-factor test,
this Court must consider only Griffin’s failure to file her application for delayed appeal by October
30, 1998 and whether her untimely filing on April 14, 1999, evidences such neglect on the part of
the petitioner as to preclude equitable tolling.
        1. Lack of Actual or Constructive Knowledge of the Filing Requirement and Reasonable
Ignorance. The Supreme Court has acknowledged that equitable tolling is sometimes appropriate
when a litigant has received inadequate notice. Baldwin County Welcome Center v. Brown, 466 U.S.
147, 151 (1984). Indeed, “[e]quitable tolling focuses primarily on the plaintiff’s excusable
ignorance of the limitations period.” Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir. 1998)
(emphasis in original). Along these lines, Griffin contends that she had no reason to know that she
was required to file within 30 days of her dismissal from federal court. This contention is difficult
to rebut. This 30-day window was adopted by the Palmer Court in January 2002, drawing on the
Second Circuit’s 2001 opinion in Zarvela. Yet Griffin failed to file within this 30-day window in
October 1998, over three years before the time frame was adopted in this circuit. Moreover, nothing
in the District Court’s dismissal indicated that Griffin need bring her state proceeding by a certain
deadline or within a certain time frame. The order of dismissal without prejudice was entirely silent
as to how Griffin should proceed in order to bring a timely habeas petition. See J.A. 100 (Opinion
and Order, Sept. 30, 1998); see also Geeter v. Bouchard, 293 F. Supp. 2d 773 (E.D. Mich. 2003)
(dismissing the petition with explicit instructions to file state proceedings within 30 days and return
to federal court within 30 days of exhaustion). To the contrary, in the dismissal without prejudice,
Judge Holschuh indicated that Griffin could proceed to exhaust her state claims and return to federal
court:
       Petitioner has a remedy in state court if she can re-open her direct appeal to assert
       these claims. She has not filed an application to reopen her appeal under Rule 26(B),
       Ohio R. App. P. In State v. Murnahan, the Ohio Supreme Court held that a person
       must bring a claim of ineffective assistance of appellate counsel through an
       application for delayed reconsideration in the court where the alleged error took
       place. In order to fully exhaust state remedies, if delayed reconsideration is denied,
       the person must appeal that denial to the Ohio Supreme Court. Murnahan, 63 Ohio
       St. 3d 60, 66 (1992); see also, Rust v. Zent, 17 F.3d at 159-60. Since petitioner has
       not yet filed an application to reopen her appeal with the state court of appeals that
       remedy is still available to her, and she has not exhausted her state remedies.
               ...
              If she wishes at some point, to make such an argument here, petitioner must
       present her claim of ineffective assistance of counsel to the state courts.
JA 103-04, 105. While the dismissal did not mislead Griffin into believing that she would have six
months or any other stated amount of time for the trip to state court and back, the dismissal does
explain how she could procedurally exhaust her claims before returning “to make such an argument
here” in federal court.
        The AEDPA statute itself did not provide notice as to how Griffin should proceed. Pursuant
to the 2001 Supreme Court opinion in Duncan, Griffin’s limitations period had already expired when
her petition was dismissed in September 1998. Even had Griffin filed her Murnahan application
instantaneously, she would not have been able to take advantage of the statutory tolling provisions.
But at the time of dismissal, Griffin and her attorney were ignorant of this expiration just as was the
District Court that dismissed the petition. From the get-go, she was in the middle of a process with
No. 04-3302           Griffin v. Rogers                                                        Page 10


undefined rules. Neither the District Court’s dismissal, the statute, nor the case law gave her any
notice of what deadlines should be observed in order to preserve the timeliness of her federal
petition. To be certain, “ignorance of the law alone is not sufficient to warrant equitable tolling.”
Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991). But, Griffin’s ignorance of the filing deadline
given the unstable and unsettled nature of AEDPA at the crucial time of mistake was reasonable and
supports her argument for tolling.
        2. Diligence in Pursuing Her Rights. After considering a petitioner’s claim of ignorance,
this Court turns to the reasonableness of the petitioner’s actions in seeking relief. The proper
considerations are Griffin’s diligence in pursuing her rights and the reasonableness of her ignorance
of the effect of her delay. See King, 378 F.3d at 553. After her habeas claim was dismissed on
September 30, 1998, Griffin, represented by her attorney did not file in federal court until six and
one half months later on April 14, 1999. This delay certainly does not indicate an “extraordinarily
long period of unexplained idleness,” Cook, 295 F.3d at 522. Griffin had not simply stopped
pursuing relief. Instead, she was represented by counsel, who was acting on her behalf. And, under
the circumstances, she was reasonably active in responding to the dismissal.
        To be certain, the principles of equitable tolling do not extend to “garden variety” claims of
excusable neglect on the part of a litigant’s attorney. Irwin, 498 U.S. at 96. Equitable tolling might
not be appropriate had Griffin’s attorney been aware of a deadline and negligently failed to file on
time or if Griffin’s attorney was negligent in not ascertaining the filing deadline. But, where the law
is unclear, constitutional review should not be forfeited unless there has been a lack of good faith
diligence on the part of the petitioner herself. Here counsel had to prepare and file a complex record
and research complex questions of law before filing her petition in state court. In the absence of any
known deadline, six months for preparation and filing by a busy public defender’s office is not
unreasonable. Counsel could not know that the state would argue that “equity” would require the
retroactive application of deadlines created by cases decided two or three years later.
         3. Absence of Prejudice. “Absence of prejudice is a factor to be considered only after a
factor that might justify tolling is identified.” Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir.
2003); Dunlap, 250 F.3d at 1009 (“Prejudice may only be considered if other factors of the test are
met and therefore can only weigh in the government’s favor.”). As Griffin has made a plausible case
for equitable tolling based on the first four factors, it is appropriate to consider whether equitably
tolling the statute of limitations will prejudice the respondent. In Dunlap, this Court rejected the
notion that “the government is always prejudiced when there is a collateral attack.” Dunlap, 250
F.3d at 1009. It is difficult to claim that forcing the warden to make an argument on the merits of
Griffin’s petition will be prejudicial to the state’s cause. In fact, the warden addresses the merits of
Griffin’s underlying claim in its brief. Appellee’s Br. at 28-29. As this is not a death penalty case,
there is no support for the argument that Griffin is simply trying to drag out the proceedings. In this
case, it does not appear that equitably tolling the one-year statute of limitations would prejudice the
state in any way.
No. 04-3302                 Griffin v. Rogers                                                                        Page 11


                                                             III.
         Equitable tolling under the Andrews factors is appropriate in this case, despite Griffin’s
failure to adhere strictly to the 30-day window of Palmer. None of this Court’s precedents indicate5
that Palmer established a retroactive equitable tolling deadline for petitioners in Griffin’s situation.
The starting point of these cases is the fact that the deadline has already passed. There is no question
that Griffin’s case was time-barred by § 2244(d)(1). Dismissal on the grounds of such untimeliness
is certainly within the power of the courts. To avoid injustice, however, we have adopted a stay-
and-abeyance procedure conditional on the 30-day time limits for cases where a dismissal might
preclude a timely re-filed petition. Applied retroactively to dismissed cases, this stay-and-abeyance
procedure effects mandatory equitable tolling when petitioners would have complied with the stay’s
conditions. This procedure outlined in Palmer and Hargrove is followed uniformly. Beyond this
stay-and-abeyance procedure and its retroactive application prescribed in Palmer, our cases neither
require nor prohibit a court from determining whether the limitations period should be equitably
tolled under Andrews.
        The notion that the operation of equitable tolling is dependent upon a litigant’s compliance
with an unknown, retroactive, hard 30-day deadline is inimical to equity itself. Equitable tolling is
a “discretionary doctrine” that “does not lend itself to bright line rules.” Harris v. Hutchison, 209
F.3d 325, 328 (4th Cir. 2000). Thus, we refuse to adopt the strict 30-day rule relied upon by the
District Court that would reject all litigants in Griffin’s position regardless of the equities involved.
It should also be noted that we announce no general rule of equitable tolling that will sweep in all
similarly-situated litigants. It remains a case-by-case determination. “The virtue of relying on
equitable tolling lies in the very nature of such tolling as the exception, not the rule.” Rotella v.
Wood, 528 U.S. 549, 561 (2000).
        For the reasons stated above, Griffin is not entitled to the mandatory tolling of the one-year
limitations period prescribed by Palmer. But, her failure to comply with a retroactive time window
does not support the conclusion that equitable tolling is unavailable. Griffin and her counsel were
reasonably ignorant of the relevant filing time lines and the consequences of their delay. Thus, we
REVERSE the dismissal of the District Court, equitably toll the limitations period, and REMAND
this case for further proceedings in the District Court.




         5
               In Godbolt v. Russell, 82 Fed. Appx. 447, 2003 WL 22734743 (6th Cir. 2003) (per curiam) (unpublished), the
petitioner was dismissed for failure to exhaust state remedies. When the petitioner attempted to return to federal court,
his action was dismissed as untimely. Id. at 448-49. On appeal, the petitioner argued that the District Court should have
stayed rather than dismissed the original petition. Id. at 449. This Court affirmed the District Court’s dismissal, finding
that no error had been committed. Id.; see also Barnard v. Conley, 36 Fed Appx. 813, 815, 2002 WL 535787 (6th Cir.
2002) (unpublished) (affirming District Court’s dismissal of an untimely habeas petition). The Godbolt Court further
found that any error resulting from the dismissal was harmless as the petitioner did not comply with the 30-day time
windows that would have accompanied such a stay. 82 Fed. Appx. at 452. Importantly, non-mandatory equitable tolling
was not at issue, and as such was neither considered nor decided. Since those decisions, the Supreme Court has
impliedly held that district courts indeed have the power to dismiss mixed petitions even if that dismissal endangers a
petitioner’s ability to re-file a habeas petition within the statutory limitations period. Pliler v. Ford, 124 S.Ct. 2441,
2446-47(2004). But, while these cases indicate that dismissal for mixed petitions remains appropriate under the AEDPA
limitations period, they in no way block a court from considering whether equitable tolling is appropriate. In fact, in
Pliler, the court indicated that on remand the court could conduct an equitable tolling analysis. Id. at 2447 (“We remand
the case for further proceedings given the Court of Appeals’ concern that respondent had been affirmatively misled
. . . .”); id. at 2448 (O’Connor, J., concurring) (“Nevertheless, if the petitioner is affirmatively misled, either by the court
or by the State, equitable tolling might well be appropriate.”).
No. 04-3302           Griffin v. Rogers                                                       Page 12


                                          ________________
                                              DISSENT
                                          ________________
         RONALD LEE GILMAN, Circuit Judge, dissenting. Although I have no problem with the
legal principles laid out by the majority, I disagree with its application of those principles in the
present case. Specifically, I believe that the majority’s decision is contrary to the holding in Palmer
v. Carlton, 276 F.3d 777 (6th Cir. 2002), the very case upon which the majority relies. This court
in Palmer denied equitable tolling to a defendant who had waited approximately two months to
refile in federal court after exhausting his state-court remedies:
       [A]doption of the Second Circuit’s approach [of allowing a 30-day safe harbor] in
       this case would not afford Palmer the relief he seeks. Although his state-court
       remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before
       he returned to federal court and filed a second habeas petition. This wait amounted
       to more than the “normal” 30-day period suggested by the Second Circuit as a
       reasonable period for a petitioner to return to federal jurisdiction, and the record
       offers no reason for the two-month delay.
Id. at 781-82. Similarly, the record in the present case offers no reason for Griffin’s delay, and the
delay at issue here was six and a half months—over three times as long as the one in Palmer.
        The majority’s point that Palmer was a poor candidate for equitable tolling because he raised
no federal constitutional claims, Maj. Op. at 7, appears to me to be irrelevant. Diligence is the key
to equitable tolling, not the nature of the defendant’s claims, and neither Palmer nor Griffin were
diligent in pursuing the remedies available to them.
         Furthermore, I believe that the majority’s distinction between “mandatory equitable tolling”
and “traditional equitable tolling,” Maj. Op. at 8, is an artificial one not justified by any prior
caselaw. The 30-day Palmer rule is better viewed as a safe haven—“a brief, reasonable time limit
upon the petitioner to present claims to state courts and return to federal court . . . .” Palmer, 276
F.3d at 781. Under this analysis, the factors set out in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.
1988), and reaffirmed in Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001), are the same
for all equitable tolling claims; but any delay beyond 30 days places the burden on the defendant to
show reasonable diligence.
        I acknowledge the majority’s point that Griffin had no set deadline to return to state court,
but she had to have been aware that AEDPA’s one-year time limit had already expired. So she knew
or should have known that time was of the essence in going to and from state court. Waiting six and
a half months to go to state court—with no reasonable explanation—indicates to me a complete lack
of diligence.
        The majority’s statement that the delay “certainly does not indicate ‘an extraordinarily long
period of unexplained idleness,’” Maj. Op. at 10, quoting Cook v. Stegall, 295 F.3d 517, 522 (6th
Cir. 2002), confounds me. It certainly does! The only point being made by the court in Cook was
that “nearly twelve years” was “an extraordinarily long period of unexplained idleness” after the
expiration of the applicable statute of limitations. Id. Cook therefore provides no support for the
majority’s statement.
        Furthermore, I find no basis to conclude that Griffin “was reasonably active in responding
to the dismissal,” Maj. Op. at 10, and I am unpersuaded by the majority’s declaration that “six
months for preparation and filing by a busy public defender’s office is not unreasonable.” Id.
No. 04-3302           Griffin v. Rogers                                                        Page 13


Counsel’s lack of diligence, moreover, is not a basis for equitable tolling. See Andrews, 851 F.2d
at 151 (listing five factors to take into account in determining whether equitable tolling is justified,
including the litigant’s own diligence, but not including counsel’s lack of diligence).
       In sum, I find even less justification for the six-and-a-half-month delay in this case than for
the two-month delay that was found to be unacceptably long in Palmer. I therefore believe that
Palmer is controlling, and thus would AFFIRM the judgment of the district court.
