                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0362n.06
                                                                                             FILED
                                            No. 09-3379
                                                                                        Apr 04, 2012
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

EDDIE T. LEE,                                      )
                                                   )
       Petitioner-Appellant,                       )       ON APPEAL FROM THE
                                                   )       UNITED STATES DISTRICT
               v.                                  )       COURT FOR THE NORTHERN
                                                   )       DISTRICT OF OHIO
TIM BRUNSMAN, Warden,                              )
                                                   )
       Respondent-Appellee.                        )



Before: BOGGS and MCKEAGUE, Circuit Judges; GOLDSMITH, District Judge.*

       GOLDSMITH, District Judge. Petitioner-Appellant Eddie Lee appeals the district court

order dismissing his habeas petition as time-barred. We AFFIRM.

                           FACTS AND PROCEDURAL HISTORY

       On August 13, 2003, Lee pleaded guilty in Ohio state court to three counts of aggravated

robbery, with a firearm specification for each count. The state court sentenced Lee to seven years’

imprisonment on each of the counts and imposed an additional three-year sentence for the firearm

specification. The court ruled that the sentences were to be served consecutively, for a total sentence

of 24 years. In its sentencing judgment, the trial court specifically stated:

       [T]he shortest prison term is not required under R.C. 2929.14(B) because:

       The Court finds that the shortest term will demean the seriousness of the defendant’s
       conduct.

       *
       The Honorable Mark A. Goldsmith, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 09-3379
Lee v. Brunsman, Warden

       The shortest prison term will not adequately protect the public from future crime by
       the defendant or others.

The court also stated why it sentenced Lee to consecutive terms:

       The prison terms imposed in COUNTS ONE, TWO AND THREE are to be served
       CONSECUTIVE to each other because:

               A gun specification term is imposed.

               Under R.C. 2929.14(E) it is necessary to protect the public and punish the
               defendant, consecutive terms are not disproportionate to the conduct of the
               defendant, the defendant poses danger, and

               The harm done by the defendant was so great or unusual that a single term
               does not adequately reflect the seriousness of the defendant’s conduct.

               The defendant’s criminal history shows that consecutive terms are needed to
               protect the public.

       Lee did not file a timely appeal within the 30-day time period required by Ohio Appellate

Rule 4(a); however, on November 3, 2003, Lee filed a motion for leave to file a delayed appeal with

the Ohio Court of Appeals. The Ohio Court of Appeals denied the motion on December 22, 2003.

Lee did not appeal the denial to the Ohio Supreme Court.

       On June 21, 2005, Lee filed a motion for post-conviction relief in Ohio state court, citing

inter alia, Blakely v. Washington, 542 U.S. 296 (2004), as a basis for relief. The court denied the

motion on the basis of res judicata and also rejected the Blakely argument on the merits. On August

10, 2006, Lee filed a motion for leave to file a delayed appeal with the Ohio Court of Appeals, which

was denied on September 28, 2006. Lee timely appealed this denial to the Ohio Supreme Court, and

on February 7, 2007, the Ohio Supreme Court summarily denied leave to appeal.



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Lee v. Brunsman, Warden

        On January 25, 2008, Lee filed a habeas petition pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Northern District of Ohio. Lee argued that the state court had used

judicial factfinding to enhance his sentence in violation of Blakely. The magistrate judge issued a

report and recommendation concluding that Lee’s petition should be dismissed as time-barred. The

District Court adopted the report and recommendation, thereby not reaching the merits of Lee’s

Blakely argument. This appeal followed.

                                             DISCUSSION

        On appeal, Lee argues that we may consider the merits of his Blakely argument even though

he failed to file a timely habeas petition because (i) his habeas petition is subject to equitable tolling,

and (ii) he is actually innocent of the sentence imposed on him. Lee further argues that the finding

that permitted the court to impose consecutive sentences constituted judicial factfinding in violation

of Blakely, which requires that “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S.

at 301. Lee argues that the minimum sentence allowable for the offense for which he pleaded guilty

is six years, and that the imposition of consecutive sentences, “which were allowable under Ohio law

only after the trial court engaged in judicial fact-finding at sentencing, run[s] afoul of Blakely.”

Appellant’s Br. at 15.




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No. 09-3379
Lee v. Brunsman, Warden

I.     Standard of Review

       We review de novo the lower court’s determination that Lee’s habeas petition was filed

outside the statute of limitations. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002).1

II.    Timeliness

       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year statute

of limitations for habeas actions. 28 U.S.C. § 2244(d). Petitions for habeas corpus filed after the

limitations period has run are subject to dismissal. See, e.g., Cook v. Stegall, 295 F.3d at 519. Lee

does not challenge the district court’s conclusion that his habeas petition was not timely filed. After

review of the record, we agree that Lee’s habeas petition was not timely, and further conclude that

no recognized exception applies that would save it from dismissal.

       A.      Equitable Tolling

       Lee argues that his habeas petition is subject to equitable tolling. Courts must consider

equitable principles when ruling on a petition’s timeliness. Holland v. Florida, 130 S. Ct. 2549,

2562 (2010). This is because the “writ of habeas corpus plays a vital role in protecting constitutional

rights.” Slack v. McDaniel, 529 U.S. 473, 483 (2000). The equitable-tolling doctrine is to be used

in exceptional circumstances and “relief should only be granted sparingly.” Souter v. Jones, 395

F.3d 577, 588 (6th Cir. 2005) (quoting Cook, 295 F.3d at 521). A petitioner is entitled to equitable

tolling if he shows “(1) that he has been pursuing his rights diligently, and (2) that some


       1
          Where Lee’s equitable tolling argument was arguably raised in the habeas petition, but not
explicitly addressed by the District Court, de novo review is appropriate given that no facts material
to that issue are in dispute. See Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001);
Kincade v. Wolfenbarger, 324 F. App’x 482, 486 n.4 (6th Cir. 2009).

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Lee v. Brunsman, Warden

extraordinary circumstance stood in his way and prevented timely filing.” Holland, 130 S. Ct. at

2562. This Circuit has identified five factors to consider in determining whether a statute of

limitations should be tolled:

       (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, 250 F.3d at 1008 (citing Andrews v. Orr, 851 F.2d 146, 152 (6th Cir. 1988)).

       Lee has not argued that the factors, when applied to his case, weigh in favor of equitable

tolling; in fact, Lee has not analyzed the Andrews factors at all. Instead, Lee argues that he would

suffer a miscarriage of justice were he to be denied equitable tolling. The Supreme Court has

recognized excusing procedural bars to a habeas petition in order to avoid a miscarriage of justice,

but only upon a “strong showing of actual innocence.” Calderon v. Thompson, 523 U.S. 538, 558

(1998); see also Souter, 395 F.3d at 588 (“In the present case, [the appellant] is not arguing for

equitable tolling based on any of the Andrews factors; instead, he argues that because he has made

a credible showing of actual innocence, equitable tolling should be applied to allow a court to

consider his constitutional claims.”). Lee argues that because he is “actually innocent of consecutive

sentences,” we should consider his habeas petition even though it is untimely.

       We reject Lee’s argument that he is entitled to an actual-innocence exception to the

procedural bar for two reasons. First, this Circuit has only applied the exception if a petitioner is

either (i) factually innocent of the crime for which he was convicted, or (ii) innocent of a death

sentence in a capital case. Neither of those circumstances is applicable here. Second, Lee’s


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Lee v. Brunsman, Warden

underlying Blakely argument that he is actually innocent of consecutive sentences is unpersuasive

because Blakely, which was decided after Lee’s conviction became final, does not apply

retroactively. Accordingly, the district court was correct not to review the merits of Lee’s habeas

petition.

               1.      Actual Innocence

        In extraordinary cases, a petitioner may raise a claim of actual innocence “to avoid a

procedural bar to the consideration of the merits of his constitutional claims.” Schlup v. Delo, 513

U.S. 298, 326-27 (1995). To establish actual innocence, “a petitioner must show that it is more

likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable

doubt.” Id. The actual-innocence exception is “not itself a constitutional claim, but instead a

gateway through which a habeas petitioner must pass to have his otherwise barred constitutional

claim considered on the merits.” Id. at 315. “[A]ctual innocence means factual innocence, not mere

legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Similarly, a claim of legal

innocence is insufficient to raise a miscarriage-of-justice claim. Calderon, 523 U.S. at 559 (“[T]he

miscarriage of justice exception is concerned with actual as compared to legal innocence.”) (quoting

Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).

        In the capital-sentencing context, the Supreme Court has recognized “a narrow exception”

by allowing the application of the actual-innocence exception where constitutional errors result in

a death sentence for one who is actually innocent or the aggravating circumstances that render him

eligible for the death penalty. Dretke v. Haley, 541 U.S. 386, 388 (2004) (citing Sawyer, 505 U.S.



                                                 6
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Lee v. Brunsman, Warden

333).2 The Supreme Court has not extended the actual-innocence exception to include constitutional

sentencing errors in non-capital cases. Id. at 393-94. Like the Supreme Court, this Circuit has not

applied the actual-innocence exception to non-capital cases. Gibbs v. United States, 655 F.3d 473,

477-78 (6th Cir. 2011) (citing Flahardy v. United States, No. 95-5281, 1995 WL 570925, at *2 (6th

Cir. Sept. 27, 1995) and Black v. United States, No. 95-5041, 1995 WL 445718, at *2 (6th Cir. July

26, 1995)).

       Lee argues that we should follow the Second and Third Circuits, which, Lee argues, apply

the exception in contexts similar to this case. Lee cites in support Cristin v. Brennan, 281 F.3d 404

(3d Cir. 2002) and Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162 (2d Cir.

2000). However, these cases are inapposite.

       The Cristin court declined to take a position on whether the actual-innocence exception

might apply in non-capital cases. Cristin, 281 F.3d at 422. Rather, the court simply rejected the

petitioner’s argument that he was actually innocent of the excessively long sentence that he received

because the petitioner had provided no basis “for concluding that some factual finding at sentencing

was erroneous.” Id. The court noted that the “courts that have extended Sawyer’s holding on the

‘actual innocence’ of a sentence have uniformly done so in the context of testing the factual findings

on which a particular non-capital sentence is based, such as prior convictions.” Id.




2
 Specifically, the Supreme Court has held that “to show ‘actual innocence’ one must show by clear
and convincing evidence that, but for a constitutional error, no reasonable juror would have found
the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505
U.S. 333, 336 (1992).

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No. 09-3379
Lee v. Brunsman, Warden

        The Spence decision, too, emphasizes that the actual-innocence exception concerns

challenges to erroneous factual findings. In Spence, the sentencing court concluded that the

petitioner had committed an act that was a prerequisite to his receiving a sentence of jail time rather

than probation. In his habeas petition, the petitioner challenged the sentencing court’s erroneous

factual determination that he had actually committed the act. The court concluded that the petitioner

met the actual-innocence exception. Spence, 219 F.3d at 171-72 (“Where a sentencing court relies

on the commission of an act subsequent to trial or to a guilty plea as grounds for raising the

defendant’s sentence for the original conviction, a petitioner may properly challenge the conclusion

that he committed the subsequent act on the ground that he was actually innocent of it.”).

        Both Cristin and Spence are consistent with the idea that – if the actual-innocence exception

applies in the non-capital context – a legitimate actual-innocence argument is a challenge to the

correctness of a factual conclusion that was a prerequisite to the petitioner’s sentence. In contrast,

Lee does not challenge the correctness of the factual conclusions reached by the sentencing court.

Rather, Lee’s claim is that the sentencing court violated Blakely by the very act of engaging in

factfinding, regardless of the correctness of that factfinding. In other words, Lee’s complaint is that

his sentencing was procedurally defective, not that he was actually innocent of any of the acts

underlying his conviction. Because Cristin and Spence provide no support for the view that such a

procedural defect satisfies the actual-innocence exception, Lee’s reliance on these authorities is

misplaced. Nor has Lee presented any case from any circuit that supports the proposition that the

actual-innocence exception described in Sawyer may be extended to apply to procedural sentencing

errors, particularly outside of the capital context.

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No. 09-3379
Lee v. Brunsman, Warden

        Accordingly, Lee has not established that an actual-innocence exception to the AEDPA is

applicable under the circumstances present in his case.

                 2.     Blakely

        Even if this court were to entertain Lee’s actual-innocence argument, it is meritless. Lee

bases his actual-innocence argument on Blakely, where the Supreme Court applied and extended the

rule set out in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held

that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490. In Blakely, the Court explained:

        [T]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge
        may impose solely on the basis of the facts reflected in the jury verdict or admitted
        by the defendant. In other words, the relevant “statutory maximum” is not the
        maximum sentence a judge may impose after finding additional facts, but the
        maximum he may impose without any additional findings. When a judge inflicts
        punishment that the jury’s verdict alone does not allow, the jury has not found all the
        facts “which the law makes essential to the punishment,” and the judge exceeds his
        proper authority.

542 U.S. at 303-04 (citations omitted).

        Related to the consecutive nature of Lee’s sentence, the trial court found the following facts

at sentencing:

        The prison terms imposed in COUNTS ONE, TWO AND THREE are to be served
        CONSECUTIVE to each other because:

                 A gun specification term is imposed.

                 Under R.C. 2929.14(E) it is necessary to protect the public and punish the
                 defendant, consecutive terms are not disproportionate to the conduct of the
                 defendant, the defendant poses danger, and


                                                   9
No. 09-3379
Lee v. Brunsman, Warden

                The harm done by the defendant was so great or unusual that a single term
                does not adequately reflect the seriousness of the defendant’s conduct.

                The defendant’s criminal history shows that consecutive terms are needed to
                protect the public.

Lee argues that these findings by the trial court constitute constitutional error because, under Blakely,

these facts should have been presented to a jury to decide.

        Blakely relief is not available to Lee because Lee’s conviction was final prior to Blakely.

“Generally speaking, federal habeas corpus petitioners may not rely on new rules of criminal

procedure handed down after their convictions have become final on direct appeal.” Humphress v.

United States, 398 F.3d 855, 860 (6th Cir. 2005). Applying this general rule to Blakely, this Circuit

has consistently held that the decision does not apply retroactively. See, e.g., Hicks v. United States,

258 F. App’x 850, 854 (6th Cir. 2007) (“It is soundly established that Blakely and [United States v.]

Booker [543 U.S. 220 (2005)] do not apply retroactively to cases on collateral review.”); Taniguchi

v. United States, 262 F. App’x 714, 715 (6th Cir. 2008) (“In Humphress, we held that Blakely and

Booker do not apply retroactively to cases pending on collateral review.”).3 Lee’s conviction became

final on September 13, 2003 – 30 days after he was convicted when he did not timely appeal to the

Allen County Court of Appeals, pursuant to Ohio Rule of Appellate Procedure 4(a). See Applegarth

v. Warden, 377 F. App’x 448, 449 (6th Cir. 2010) (conviction final under Ohio law after 30-day time

period expires, even where petitioner later filed a motion for a delayed appeal). Blakely was decided

on March 23, 2004.

        3
         Petitioner argues in his reply that the instant case is distinguishable from Humphress, which
primarily dealt with the retroactivity of Booker. However, as demonstrated by Hicks and Taniguchi,
this Circuit has not distinguished Blakely from Booker with respect to retroactivity.

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No. 09-3379
Lee v. Brunsman, Warden

       Accordingly, even if we were to consider Lee’s Blakely argument under the actual-innocence

exception, Lee would not be entitled to relief.

                                         CONCLUSION

       For the reasons set forth above, the district court order denying the habeas petition as time-

barred was correct. We AFFIRM.




                                                  11
