                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0020n.06
                           Filed: January 12, 2009

                                           No. 07–1166

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

ALFREDO INGLESIAS,                                )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
BARRY D. DAVIS, Warden,                           )   WESTERN DISTRICT OF MICHIGAN
                                                  )
       Respondent-Appellee.                       )
                                                  )


       Before: SUHRHEINRICH, BATCHELDER and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Alfredo Inglesias challenges the district court’s dismissal of his

petition for habeas corpus. Because the district court correctly concluded that his petition is time-

barred, we affirm.


                                                 I.


       In 2001, Inglesias pleaded guilty in Michigan state court to unarmed robbery, home invasion

and assault with intent to rob while armed. He was sentenced to serve one year in county jail and

60 months probation, but he violated his probation, and so in January 2002 he was sentenced to serve

concurrent terms for the three crimes, creating a new nine-to-twenty-year sentence. He did not

pursue any direct appeals from this probation-violation determination (or sentence), and he has

acknowledged that it became final, for federal habeas-corpus purposes, on January 24, 2003.


       On March 31, 2005, Inglesias filed a state-court motion for relief from the judgment. He lost,

and this time he sought leave to appeal, which was denied. After failing to obtain review in the

Michigan Supreme Court, he filed a federal habeas petition, see 28 U.S.C. § 2254. The magistrate
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judge recommended that the court deny the petition as untimely, and the district court adopted the

recommendation. Inglesias v. Davis, No. 2:06-CV-247, 2007 WL 108303, at *2, 4 (W.D. Mich. Jan.

9, 2007). Inglesias appeals.


                                                   II.


        In prior pleadings in this case, Inglesias has admitted that his parole-revocation determination

became final on January 24, 2003, and that he did not file his state-court motion for relief from
judgment until March 31, 2005. These realities place a serious obstacle in front of his claim, because

habeas petitions are subject to a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1)(A).

Having admitted that more than a year passed between when his probation-violation determination

became final and when he filed his state post-conviction petition, Inglesias is barred from seeking

federal relief under § 2244(d)(1)(A) unless he can establish an exception to the rule.


        Inglesias raises three grounds for overcoming the one-year limitations bar. First, he argues

that, by denying him his right to appointed counsel in pursuing discretionary appellate review

following his guilty plea, see Halbert v. Michigan, 545 U.S. 605, 616–17 (2005), the State placed

a limitation-tolling “impediment” in the way of his federal habeas petition. See § 2244(d)(1)(B).

But even if the denial of appointed counsel impeded Inglesias’s pursuit of direct review, it did not

obstruct his quest for collateral federal habeas relief—and that is the relevant question. Inglesias

has no constitutional right to have the assistance of counsel in bringing a collateral action

challenging his conviction, see Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2005), and thus

this argument offers no basis for sidestepping the one-year bar.


        Second, Inglesias argues that the limitations period should be equitably tolled. Although he

did not raise this claim below, and although the magistrate judge made no recommendations about

it, the district court raised the issue sua sponte, concluding that neither Inglesias’s difficulties with

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the English language nor the lack of counsel supported tolling. See Inglesias, 2007 WL 108303, at

*3. This legal conclusion warrants a fresh look on appeal. See Solomon v. United States, 467 F.3d

928, 932 (6th Cir. 2006).


        We grant equitable tolling “sparingly,” id. at 933, and we do not ordinarily toll the statute

absent “compelling equitable considerations” arising “from circumstances beyond [the] litigant’s

control.” Jurado v. Burt, 337 F.3d 638, 642–43 (6th Cir. 2003) (internal quotation marks omitted).

Five factors guide the inquiry: “(1) the petitioner’s lack of notice of the filing requirement; (2) the
petitioner’s lack of constructive knowledge of the filing requirement; (3) [his] diligence in pursuing

[his] rights; (4) [whether there was] prejudice to the respondent; and (5) the petitioner’s

reasonableness in remaining ignorant of the legal requirement for filing his claim.” Allen v. Yukins,

366 F.3d 396, 401 (6th Cir. 2004) (internal quotation marks omitted). Inglesias does not claim lack

of knowledge or notice, constructive or otherwise, of the filing requirement, and we accept for the

sake of argument that the late filing did not prejudice the State. We therefore “focus[] on . . . his

diligence in pursuing his rights and the reasonableness of his ignorance of the effect of his delay,”

Jurado, 337 F.3d at 643.


        Inglesias insists that he demonstrated diligence by repeatedly requesting transcripts from his

state-court proceedings during the twenty-six-month span between the finality of his conviction and

his state habeas filing. But given his notice of the need to file promptly, that does not constitute

diligence. In the absence of aggravating circumstances “beyond [the petitioner’s] control” that

frustrated his attempt to file on time, Inglesias cannot establish that he diligently pursued his rights.

Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008); see Keenan v. Bagley, 400 F.3d 417, 427–28

(6th Cir. 2005).




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        Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006), illustrates the point. In

accepting the claimant’s equitable-tolling argument, the court noted that the petitioner had made

“request[s] for transcripts” but did not rest its decision on that ground. Id. at 931. The court noted

that Solomon had “worked day and night studying and preparing his [section] 2255 [petition]” but

was prevented from filing on time because of a number of adverse circumstances: Besides lack of

access to the trial transcript, he had restricted access to the prison’s law library, and he was

transferred to another penal institution without his legal materials shortly before the end of the
limitations period. Id. at 933–35. Not only was the petitioner thus making every effort to file on

time, but the prison transfer—an external circumstance—also prevented him from filing on time.

Inglesias has not made an equivalent showing—indeed, he has not even shown that his pursuit of the

transcripts delayed his submission, which ultimately was filed without any such attachments. The

relevant rules, notably, allow petitions to be filed without such transcripts attached. See Rules

Governing § 2254 Cases, at R. 2, 5.


        Inglesias argues that we should view his circumstances differently because English is not his

first language and he lacks a formal education. But “[w]here a petitioner’s alleged lack of

proficiency in English has not prevented the petitioner from accessing the courts, that lack of

proficiency is insufficient to justify an equitable tolling of the statute of limitations.” Cobas v.

Burgess, 306 F.3d 441, 444 (6th Cir. 2002). A “poor education” likewise normally will not excuse

a dilatory filing. Id.


        Third, Inglesias suggests without elaboration that his petition was timely because his

conviction did not occur until later—perhaps as late as January 24, 2004, which would make his

habeas petition timely. His intimations on this point, however, are terminally Janus-faced. On the

one hand, consistent with everything we have said so far, Inglesias’s petition stated that his

probation-violation “conviction” occurred on January 24, 2002, Pet. at 1, and he quoted the state-

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court trial judge to that effect: “On January 24, 2002 after protracted proceedings, this court found

the defendant guilty of a probation violation.” Grounds in Supp. of Pet. at ii. But, on the other hand,

in his objections to the magistrate judge’s recommendation, he seemed to present a different picture,

one not only inconsistent with his petition but also seemingly inconsistent with itself. There, he said

that his “conviction became final on January 24, 2003,” which would be one year after the probation

revocation date he provided in his petition, and suggested a still-later date for the revocation as

well—that he was “found guilty of [a] probation violation on January 24, 2004.” Objs. at 1, 3. He
then repeats this inconsistent claim in his appellate briefing without offering any explanation why.


       Perhaps Inglesias, an indigent petitioner who is not represented by an attorney, has confused

the date when his original conviction became final with the date when his probation revocation

became final—that he means to say that January 24, 2002, was the date of his initial conviction,

while January 24, 2004, was the date of his revocation. But that does not make sense because he

consistently has maintained that his original conviction occurred in May 2001. Or perhaps the

unelaborated January 24, 2004 reference is simply a typo. Either way, the salient point is that these

unelaborated statements provide no basis for ignoring the state-court finding, which consistently has

been described as establishing that the revocation determination occurred “[o]n January 24, 2002.”

Grounds at ii; Br. at 10, 17.


       AEDPA requires us to presume that state-court factual findings are correct and permits

claimants to rebut a finding by introducing “clear and convincing evidence” that the state court erred.

28 U.S.C. § 2254(e)(1); see Clark v. Waller, 490 F.3d 551, 554 (6th Cir. 2007). Inglesias’s naked

(and inconsistent and unexplained) assertion in his brief that he was “found guilty of [a] probation

violation on January 24, 2004” does not constitute “clear and convincing evidence” that the state

court erred about the revocation date. He never addresses the inconsistency between this new

assertion and the claims in his petition, all of which describe a revocation proceeding that begins in

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September 2001 and ends in January 2002. And the argument is not supported by “evidence.”

Unlike his habeas petition, his objections to the magistrate’s recommendation in his brief were not

“declare[d] under penalty of perjury” or otherwise attested to, Pet. at 7, and mere allegations do not

constitute “evidence” until they are sworn or otherwise verified, see Kafo v. United States, 467 F.3d

1063, 1068 (7th Cir. 2006). Inglesias thus has failed to rebut the presumption that his conviction

became final in January 2003, which as we have shown makes his petition untimely.


                                                 III.

       For these reasons, we affirm.




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