                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0465n.06

                                           No. 14-4279


                          UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE SIXTH CIRCUIT                             Aug 12, 2016
                                                                             DEBORAH S. HUNT, Clerk
CHARLES SHORTER,

       Petitioner-Appellant,
v.
                                                      ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
RHONDA RICHARD,
                                                      SOUTHERN DISTRICT OF OHIO
       Respondent-Appellee.




BEFORE:        KEITH, CLAY, and WHITE, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Charles Shorter appeals the final judgment of the

district court denying him a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons

that follow, we AFFIRM the denial of the writ.

                                        BACKGROUND

                                       Factual Background

       On November 13, 2008, Petitioner Charles Shorter pled guilty to one count of murder

with a three-year firearm specification, one count of having weapons under disability, and one

count of evidence tampering.      Petitioner had apparently negotiated his sentence with state

prosecutors, and at the plea hearing, the trial court indicated that it would agree to Petitioner’s

request, to which the prosecution did not object, to grant community control sanctions to a co-

defendant. After the trial court accepted Petitioner’s guilty plea, Petitioner’s counsel engaged in

the following colloquy with the trial court:
No. 14-4279, Shorter v. Richard


       [DEFENDANT’S COUNSEL]: I would also ask the Court to remind my client
       that there have been various motions and rulings made by the Court during these
       proceedings, and thereby, entering the guilty pleas, those -- there are no appeal
       issues there.
       THE COURT: Right. That is correct, Mr. Shorter. By entering a plea of guilty,
       that will eliminate any and all grounds for appeal that may exist regarding
       previous rulings I have made; do you understand that, sir?
       THE DEFENDANT: Yes.

(Hearing Tr. at 24.) The court did not advise Petitioner of his appellate rights under Ohio law at

any point in the hearing. Although the plea entry form listed several constitutional rights that

Petitioner waived by entering a guilty plea, it made no mention of Petitioner’s right to appeal his

sentence. Defendant was sentenced to eighteen years to life in prison. The termination entry

was filed on November 17, 2008.

       In response to a letter from Petitioner, Petitioner’s trial counsel sent a letter dated

December 8, 2008 that obliquely addressed appellate rights, among other issues:

       You would be entitled to get a free transcript of all hearings if there was an appeal
       due to your indigency. Please keep in mind that you entered into an agreed
       sentence with your special and unique request regarding Joy’s case. One possible
       error you could allege for an appeal is whether your guilty plea was involuntary,
       an unlikely scenario. If you would be able to get your plea set aside, you would
       agaim [sic] face the possibility of the maximum sentence of all charges that do not
       merge and also put [your co-defendant’s] community control at risk and force her
       to testify against you.

       I hope this letter answers your questions and fulfills your requests. Thank you.

(R. 12, Ex. to Resp. to Mot. to Dismiss at Page ID 179.) The record does not show any further

communication between Petitioner and his counsel regarding an appeal.

       In November 2013, Petitioner filed a notice of direct appeal pursuant to Ohio R. App.

4(A) and a motion for leave to seek delayed appeal pursuant to Ohio R. App. 5(A). In the Rule

5(A) motion for delayed appeal, Petitioner argued at length that his appeal should be heard, but

did not state what grounds he would assert if the appeal were granted. Petitioner attached an



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affidavit to this motion claiming that he had learned of his right to appeal only after speaking

with a fellow inmate on October 28, 2013. The Ohio Court of Appeals denied Petitioner’s

request for a delayed appeal in an unreasoned decision on December 23, 2013. Although

Petitioner appealed the denial, the Ohio Supreme Court declined to accept jurisdiction on May

14, 2014.

                                        Procedural History

        On July 10, 2014, Petitioner filed a pro se habeas petition in the United States District

Court for the Southern District of Ohio alleging the following two grounds for relief, both of

which he had included in his brief to the Ohio Supreme Court:

        GROUND ONE: Petitioner was denied due process and equal protection of the
        law, when the trial court did not inform him of his appellate rights and his
        subsequent application for leave to file a delayed appeal was denied, in violation
        of the Fourteenth Amendment to the United States Constitution.

        GROUND TWO: Petitioner was denied effective assistance of trial counsel when
        counsel failed to ensure that petitioner was properly instructed as to his right to
        appeal, and fails [sic] to ensure that a timely notice of appeal is filed, and
        petitioner was denied the effective assistance of counsel as guaranteed by the
        Sixth and Fourteenth Amendments to the United States Constitution.

(R. 3, Habeas Petition at Page ID 39, 46.) Respondent moved to dismiss the habeas petition,

arguing that the petition was untimely, and that his claims were not cognizable on federal habeas

review and/or procedurally defaulted. The second report and recommendation issued by the

magistrate judge concluded that because Petitioner was not diligent in pursuing his appellate

rights, he could not qualify for a delayed start date of the one-year statute of limitations under the

Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1), and recommended

denying relief. The district court adopted the report and recommendation in full, and denied a

certificate of appealability.




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       After Petitioner timely appealed, this Court initially granted a certificate of appealability

on whether the Ohio Court of Appeals unconstitutionally denied his motion for leave to file a

delayed appeal, and denied a certificate of appealability as to his ineffective assistance of counsel

claim. This Court’s order stated that the district court had concluded that Petitioner’s delayed

appeal claim was timely.       Respondent moved for reconsideration, and the certificate of

appealability was expanded to include whether the claim challenging the denial of his delayed

appeal was timely filed.

                                          DISCUSSION

                                       Standard of Review

       We review de novo the district court’s conclusions regarding the timeliness of a habeas

petition. DiCenzi v. Rose, 452 F.3d 465, 467 (6th Cir. 2006). The Anti-Terrorism and Effective

Death Penalty Act (AEDPA) imposes a one-year statute of limitations for those in custody

pursuant to a state court judgment, which begins running from the latest of the following:

       (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;

       (B) the date on which the impediment to filing an application created by State
           action in violation of the Constitution or laws of the United States is
           removed, if the applicant was prevented from filing by such State action;

       (C) the date on which the constitutional right asserted was initially recognized by
           the Supreme Court, if the right has been newly recognized by the Supreme
           Court and made retroactively applicable to cases on collateral review; or

       (D) the date on which the factual predicate of the claim or claims presented could
           have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).




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No. 14-4279, Shorter v. Richard


                                              Analysis

       Although the trial court’s failure to notify Petitioner of his appellate rights under Ohio

law set the stage for this habeas case, our inquiry today concerns the actions not of the trial court,

but of the Ohio Court of Appeals—and of Petitioner himself. Roughly five years after his

sentencing—and nearly as long after receiving a letter describing possible grounds for an

appeal—Petitioner filed a motion for delayed direct appeal to the Ohio Court of Appeals. After

the thirty-day period for filing a direct appeal, Rule 5(A) allows criminal defendants to bring an

appeal “with leave of the court to which the appeal is taken.” Ohio R. App. 5(A). In general, a

defendant seeking a delayed appeal pursuant to Rule 5(A) must demonstrate cause for both the

delay itself, and the length of delay. Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011). Ohio

places no time limit on bringing such motions. See Board v. Bradshaw, 805 F.3d 769, 773 (6th

Cir. 2015).

       The parties dispute whether Petitioner’s habeas claim challenging the denial of the direct

appeal was timely under AEDPA’s one-year statute of limitations. Relying on this Court’s

decision in DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), Petitioner argues that his habeas claim

challenging the Ohio appellate court’s denial of his appeal accrued when the court denied his

appeal, and he is therefore entitled to a later start date of the AEDPA statute of limitations

pursuant to § 2244(d)(1)(D). Respondent replies that under Johnson v. United States, 544 U.S.

295 (2005), Petitioner cannot avail himself of a delayed start to the limitations period because he

did not show due diligence in seeking a delayed direct appeal.

       By its terms, section 2244(d)(1)(D) “requires diligence.” McQuiggin v. Perkins, 133 S.

Ct. 1924, 1933 (2013). The Supreme Court has cautioned against reading this requirement “out

of the statute.” Johnson, 544 U.S. at 310. Johnson concerned whether the petitioner could avail



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No. 14-4279, Shorter v. Richard


himself of a delayed accrual date under § 2255(f)(4), the similarly worded analog to §

2244(d)(1)(D) applicable to federal convictions, where a petitioner waited over three years to

return to state court to attempt to vacate a state conviction that had supported an enhanced

federal sentence. 544 U.S. 295. The Supreme Court ruled that although the petitioner had filed

his federal habeas petition within one year of the state court’s vacatur order, the petition was

nonetheless untimely because AEDPA “allows the fact of the state-court order to set the 1–year

period running only if the petitioner has shown due diligence in seeking the order,” which it

deemed the petitioner not to have done. Id. at 302.

       Emphasizing the petitioner’s role in bringing about the vacatur order, the majority held

that “[t]he requirement of due diligence must therefore demand something more than the

dissent’s willingness to accept no diligence at all.” Id. at 309. It continued:

       Where one “discovers” a fact that one has helped to generate, however, whether it
       be the result of a court proceeding or of some other process begun at the
       petitioner’s behest, it does not strain logic to treat required diligence in the
       “discovery” of that fact as entailing diligence in the steps necessary for the
       existence of that fact.

Id. at 310 (internal citations omitted). The Court expressly rejected the petitioner’s arguments,

comparable to those advanced by Petitioner here, that he was acting pro se and had sought

vacatur immediately upon receiving help from an inmate law clerk. Id. at 301, 311. In the final

section of the opinion, the majority subjected the petitioner to a reasonableness test, holding that

he had “delayed unreasonably” and that “on this record . . . [the petitioner] fell far short of

reasonable diligence.” Id. at 311.

       Like this case, DiCenzi v. Rose, which postdated but did not cite or discuss Johnson,

involved an Ohio defendant who pled guilty but was not notified of his right to appeal at

sentencing. 452 F.3d 465. Two years later, after he had filed motions for judicial release and to



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No. 14-4279, Shorter v. Richard


merge his convictions, he contacted a public defender, who informed him of his right to appeal;

immediately thereafter, he filed a motion for delayed appeal, which the Ohio Court of Appeals

denied. Id. at 467. The petitioner subsequently sought federal habeas relief pursuant to 28

U.S.C. § 2254 alleging, among other things, that the Ohio Court of Appeals had

unconstitutionally denied his request to file a delayed appeal. Id. DiCenzi discussed the accrual

date of the claim related to the denial of appeal in the briefest of terms:

        This claim accrued when the Court of Appeals for Cuyahoga County denied
        DiCenzi’s motion for delayed appeal, on September 25, 2001. Therefore, under
        28 U.S.C. § 2244(d)(1), the AEDPA “clock” began running on September 25,
        2001.    See 28 U.S.C. § 2244(d)(1)(D) (initiating the one-year AEDPA
        requirement on the date upon which the factual predicate of the claim or claims
        presented could have been discovered through the exercise of due diligence).

Id. at 468. The citation to § 2244(d)(1)(D) and the parenthetical mention of due diligence

suggest that the DiCenzi court considered due diligence in seeking delayed appeals; whatever the

due diligence inquiry for appeal-based claims, it appears to have been satisfied on the facts of

that case.

        Reading DiCenzi for the proposition that appeal-based claims entail no diligence inquiry,

as Petitioner seems to do, likely misconstrues that case, and certainly misconstrues the statute, to

which we are obliged to give full effect. Section 2244(d)(1)(D) allows a delayed accrual date

beginning with “the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence” (emphasis added). Johnson requires

this Court to give meaning to the latter part of this clause, subjecting a petitioner to a duty of

reasonable diligence in pursuing appeals as well as attacking sentences directly. See 544 U.S. at

310–11. With respect to Petitioner’s delayed appeal claim, the factual predicate was the Ohio

Court of Appeals’ declining to hear his delayed direct appeal, and Petitioner indeed filed a

habeas petition within a year of that denial. However, it is not at all clear whether that denial

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No. 14-4279, Shorter v. Richard


could have come sooner.       The burden of showing due diligence rests with the petitioner.

McSwain v. Davis, 287 F. App’x 450, 454–55 (6th Cir. 2008).

       In this case, Petitioner’s sentencing—at which the district court failed to notify him of his

appellate rights under Ohio law—triggered the duty of due diligence. Petitioner has given no

explanation for the five-year delay in filing a Rule 5(A) motion, and has not mentioned anything

he did to inquire about his potential appellate rights—after receiving the 2008 letter from his

lawyer in mentioning the possibility of an appeal—save attach an affidavit claiming that he first

learned of the possibility of appeal in 2013 from another inmate. For his petition to be timely,

Petitioner would have to convince this Court that a duly diligent person in his circumstances

would have delayed a full five years in filing his motion for direct appeal. See Johnson, 544 U.S.

at 310–11. We agree with the district court that on this record, Petitioner did not meet his burden

of demonstrating due diligence to discover his appellate rights in the five-year period between

his sentencing (and receiving the letter from his attorney), and the conversation with a fellow

inmate in 2013 that spurred Petitioner’s motion for delayed appeal. We therefore decline to

reach the merits of Petitioner’s claim.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief.




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        HELENE N. WHITE, Circuit Judge, concurring in the judgment. DiCenzi v. Rose

addressed the same delayed-appeal claim that Shorter raises here and held that the AEDPA clock

begins to run on this claim at the time the Ohio Court of Appeals denies the motion for delayed

appeal. 452 F.3d 465, 468 (6th Cir. 2006). The majority distinguishes DiCenzi by suggesting

that the DiCenzi panel considered the petitioner’s due diligence in seeking his delayed appeal.

Maj. Op. at 7. But DiCenzi held that the delayed-appeal claim accrued when the Ohio Court of

Appeals denied the petitioner’s motion for delayed appeal without reference to the petitioner’s

diligence in filing the motion. 452 F.3d at 468. Further, the majority’s suggestion contradicts

DiCenzi’s explanation addressing the petitioner’s other claims. When reviewing the timeliness

of those claims, the court concluded that it could not find, based on the record, that the petitioner

was diligent in bringing his delayed appeal, and accordingly remanded to the district court to

determine whether the petitioner was diligent in pursuing his appeal rights.          See DiCenzi,

452 F.3d at 470 (“In the instant case, the district court simply did not develop a record as to

whether DiCenzi was duly diligent for statutory purposes.”); id. at 471 (“[W]e can only speculate

whether DiCenzi exercised due diligence.”); id. (remanding to determine when the petitioner

“first learned of his right to appeal” and when he could be “reasonably expected to learn of his

appeal rights”). Although Johnson admittedly casts some doubt on the soundness of DiCenzi’s

categorical holding that the § 2244(d)(1) clock begins to run on delayed-appeal claims upon the

denial of the motion for delayed appeal, DiCenzi remains binding on this panel. See United

States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016). Bound by DiCenzi, I would find Shorter’s

delayed-appeal claim timely. Nevertheless, I concur in the judgment because Shorter’s claim

fails on the merits.




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No. 14-4279, Shorter v. Richard


        The Ohio Court of Appeals denied Shorter’s motion for delayed appeal without

explanation. Shorter then appealed to the Ohio Supreme Court, arguing that the denial of his

motion for delayed appeal was unconstitutional because he was not informed and was unaware

of his appeal rights.       The Ohio Supreme Court declined to accept jurisdiction without

explanation. Giving Shorter the benefit of doubt whether the Ohio Supreme Court’s decision

rested on an independent and adequate state procedural bar, see Lovins v. Parker, 712 F.3d 283,

296 (6th Cir. 2013), and assuming the Ohio Supreme Court denied Shorter’s claim on the merits,

the denial is not an unreasonable application of clearly established federal law. The state argued

in response to Shorter’s motion for delayed appeal that Shorter was not unaware of his appeal

rights, and pointed out that Shorter had requested judicial release and modification of his

sentences in previous cases where Shorter had pled guilty. The government also noted that

Shorter was college educated and was represented by experienced counsel. Further, in response

to inquiries from Shorter shortly after his guilty plea, Shorter’s counsel informed him that he had

at least one ground for appeal—that his guilty plea was not knowing and voluntary. Thus, there

is evidence in the record suggesting that Shorter knew that he could appeal.

        The United States Supreme Court has held that a defendant’s habeas claim based on not

being informed of his appellate rights in violation of Federal Rule of Criminal Procedure 32 fails

if he otherwise had knowledge of his appeal rights. Peguero v. United States, 526 U.S. 23, 29-30

(1999). Here, there is evidence that Shorter was informed by counsel of his appeal rights. 1 The


        1
          Ohio law, similar to the federal rules, requires that the trial court inform the defendant of his
right to appeal his conviction after “imposing sentence in a serious offense that has gone to trial,” Ohio
Crim. R. 32 (B)(1), but notice of appellate rights is not always mandatory after a guilty plea, as in
Shorter’s case, see Ohio Crim. R. 32(B)(2) (“After imposing sentence in a serious offense, the court shall
advise the defendant of the defendant’s right, where applicable, to appeal or to seek leave to appeal the
sentence imposed.”). Shorter’s sentence is not subject to appellate review because Ohio law specifically
prohibits an appeal of a sentence where the defendant pleads guilty and receives a sentence that is jointly
recommended, as here. See Ohio Rev. Code § 2953.08(D)(1).
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No. 14-4279, Shorter v. Richard


Ohio courts’ denial of Shorter’s delayed appeal premised on the trial court’s failure to inform

him of his appellate rights therefore was not an unreasonable application of clearly established

federal law.

       Accordingly, I concur in the judgment.




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