                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0323p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                     X
                             Petitioner-Appellant, -
 THOMAS ROSS,
                                                      -
                                                      -
                                                      -
                                                          No. 03-2523
         v.
                                                      ,
                                                       >
 MARY BERGHUIS, Warden,                               -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Eastern District of Michigan at Detroit.
                 No. 02-74632—John Corbett O’Meara, District Judge.
                                             Argued: April 21, 2005
                                     Decided and Filed: August 2, 2005
        Before: BOGGS, Chief Judge; ROGERS, Circuit Judge; SHADUR, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Tracy K. Stratford, JONES DAY, Cleveland, Ohio, for Appellant. Raina I. Korbakis,
OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Tracy
K. Stratford, JONES DAY, Cleveland, Ohio, for Appellant. Laura Graves Moody, OFFICE OF
THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
         ROGERS, Circuit Judge. Thomas Ross was convicted in Michigan of first-degree felony
murder, based on the jury’s finding that Ross committed assault with intent to rob while unarmed
(“AWIR-U”). Ross was sentenced to life in prison without the possibility of parole. Ross petitioned
for habeas corpus, arguing that AWIR-U does not form a predicate offense for felony murder, and
that Ross was therefore denied due process when he was convicted of first-degree murder. The State
of Michigan moved for summary judgment, arguing that Ross’s habeas petition was untimely. The
district court granted summary judgment. Ross contends that the district court should have equitably
tolled the limitations period of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), because Ross was actually innocent. Even if one assumes that equitable tolling may


         *
          The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by
designation.


                                                           1
No. 03-2523           Ross v. Berghuis                                                           Page 2


apply to assertions of innocence of the penalty, Ross cannot prove that he was actually innocent,
because Michigan recognizes AWIR-U as a predicate offense for felony murder. We affirm.
       The Michigan Court of Appeals stated the following facts in affirming Ross’s murder
conviction:
               Defendant, Thomas Edward Ross, was convicted by a jury of first-degree
       felony-murder, [Mich. Comp. Laws] 750.316. . . . On August 8, 1986, the
       Washtenaw circuit court imposed a term of imprisonment of ten to fifteen years for
       the underlying assault conviction, which it then vacated upon imposing a life term
       of imprisonment for the felony-murder conviction. On appeal, defendant argues that
       the evidence at trial was insufficient to support his conviction. . . . [T]his case
       involves the fatal shooting of Donald Schroeder on January 25, 1986, just outside a
       Kmart store on Washtenaw Avenue in Ypsilanti Township. Essentially, Mr.
       Schroeder had come to the aid of a woman who was accosted by two purse snatchers,
       including defendant, and, during a struggle, had been shot in the heart by one of the
       assailants. He died instantly.
The trial judge instructed the jury that in order to find Ross guilty of first-degree felony murder, it
must determine that he acted with intent to cause the victim’s death, and that “at the time [of the
killing of Donald Schroeder], [Ross] was committing or attempting to commit or assisting another
in the commission of the crime of Assault with Attempt to Rob being unarmed.”
        On appeal, Ross challenged the sufficiency of the evidence to support the jury’s finding that
he committed AWIR-U, and his conviction for first-degree felony murder. The Michigan Court of
Appeals affirmed the conviction, finding that testimony established that Ross assaulted the owner
of the purse with force, and that he had an intent to rob or steal. Therefore, the court found, the jury
could reasonably find the elements of AWIR-U to be met. Ross did not appeal the decision to the
Michigan Supreme Court.
        Ross first applied for state postconviction relief in 1990. The application, which does not
form part of the record here, was denied. Ross again sought state postconviction relief in March
1999. His application alleged he was wrongfully convicted of first-degree murder because AWIR-U
was not a predicate offense for felony murder. The Michigan trial court granted Ross’s motion for
relief from judgment and directed that Ross be resentenced for second-degree murder. The
Michigan Court of Appeals reversed, holding that AWIR-U was a predicate offense. People v. Ross,
618 N.W.2d 774 (Mich. Ct. App. 2000). At the time of Ross’s conviction, Michigan’s felony-
murder statute provided:
       Murder . . . committed in the perpetration, or attempt to perpetrate arson, criminal
       sexual conduct in the first or third degree, robbery, breaking and entering of a
       dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree,
       and shall be punished by imprisonment for life.
No. 03-2523                 Ross v. Berghuis                                                                    Page 3


Mich. Comp. Laws § 750.316 (1968), amended by 1980 Mich. Pub. Acts No. 28.1 Michigan’s
AWIR-U offense provides: “Any person, not being armed with a dangerous weapon, who shall
assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony,
punishable by imprisonment in the state prison not more than 15 years.” Mich. Comp. Laws
§ 750.88 (2004). The Michigan Court of Appeals reasoned that, although AWIR-U is classified
under Michigan law as assault rather than as attempted robbery, AWIR-U contains elements similar
to those of attempted unarmed robbery, and is in fact viewed as a more dangerous crime than
attempted unarmed robbery under Michigan law. Ross, 618 N.W.2d at 777. Noting that robbery
is often viewed as an assault offense, the court concluded that the Michigan legislature could not
have intended to exclude AWIR-U as a predicate for felony murder, when it had included the lesser
offense of attempted unarmed robbery. Id.
       The Michigan Supreme Court on November 20, 2001, vacated the Court of Appeals’ opinion,
affirming on different grounds. People v. Ross, 638 N.W.2d 746 (Mich. 2001). The Supreme Court
found that Ross was not entitled to relief because he did not show good cause for failing to raise on
appeal or in a prior postconviction motion his argument that AWIR-U is not a predicate for felony
murder. Id.
       On November 20, 2002, Ross filed a petition for habeas corpus in the United States District
Court for the Eastern District of Michigan. His habeas petition alleges that his conviction for felony
murder denied him due process of law because AWIR-U is not a proper predicate for felony murder.
Further, the petition alleges, Ross “is actually innocent, because the crime for which he is
incarcerated does not exist.” The State of Michigan moved for summary judgment on the grounds
that Ross failed to comply with the AEDPA statute of limitations for prisoners appealing state
convictions, 28 U.S.C. § 2244(d).
        Because Ross’s conviction became final before the AEDPA effective date, the statute of
limitations on Ross’s habeas claim expired on April 24, 1997, one year after the effective date.
Griffin v. Rogers, 399 F.3d 626, 631-632 (6th Cir. 2005). Ross’s March 1999 application for state
postconviction relief did not toll the limitations period, because he applied after the AEDPA
limitations period ended. See 28 U.S.C. § 2244(d)(2). Further, Ross did not argue that the
limitations period should have run from the2 date of a new factual discovery or the recognition of a
new constitutional right creating his claim. Id. § 2244(d)(1)(C)-(D). The district court found that


         1
             Today, the same statute provides:
        A person who commits any of the following is guilty of first degree murder and shall be punished for
        life: . . .
        Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct
        in the first, second, or third degree, child abuse in the first degree, a major controlled substance
        offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or
        second degree, larceny of any kind, extortion, kidnapping, or vulnerable adult abuse in the first and
        second degree under section 145n.
Mich. Comp. Laws § 750.316 (2004). The changes have no bearing on the questions presented in this case.
         2
             The AEDPA statute of limitations for habeas petitions by state prisoners provides:
         (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;
                  (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
No. 03-2523             Ross v. Berghuis                                                                     Page 4


Ross was not eligible for equitable tolling under the standard of Dunlap v. United States, 250 F.3d
1001, 1008 (6th Cir. 2001), which takes into account, inter alia, whether the petitioner lacked notice
of the filing requirement, and whether late filing does not prejudice the respondent. The court also
found that, assuming that proof of actual innocence may form a second situation authorizing
equitable tolling, Ross had not made this showing. The court, citing Schlup v. Delo, 513 U.S. 298,
324 (1995), found that Ross had provided no “new reliable evidence” proving actual innocence.
Further, the court assumed that if an actual innocence exception existed, the petitioner must show
(as he must under Dunlap equitable tolling) reasonable diligence in pursuing his claim. The court
found that Ross could not make this showing since he first contended that AWIR-U could not
support a felony-murder conviction in his second postconviction application, ten years after his
conviction became final. Ross then waited a full year after the conclusion of that matter to petition
for habeas corpus. Therefore, the court granted the State’s motion for summary judgment. Ross
timely appealed.
         Ross’s petition is untimely, and the district court properly granted summary judgment. Ross
does not argue that he has complied with AEDPA’s statute of limitations; further, Ross does not
contend that Dunlap tolling applies. Therefore, the only issue is whether the district court should
have equitably tolled the limitations period because Ross was actually innocent. First, this case does
not fit within the actual innocence equitable tolling rule recognized in Souter v. Jones, 395 F.3d 577
(6th Cir. 2005), because Ross does not claim that he did not commit the acts forming the basis for
his conviction, and because he has not provided new exculpatory evidence. Second, even if one
assumes that Souter’s rule extends to claims of innocence of a non-capital penalty, Ross has not
proven he was innocent of the penalty of life imprisonment. A Michigan court has held that
attempted robbery is a lesser-included offense within assault with intent to rob, and therefore assault
with intent to rob may form a predicate offense for felony murder. People v. Akins, 675 N.W.2d 863
(Mich. Ct. App. 2003).
         Two distinct categories of actual innocence grew out of habeas corpus cases, permitting a
court to reach the merits of defaulted, successive, or abusive habeas claims. Ross seeks to invoke
a theory of equitable tolling grounded in one category, when, as he concedes in his brief, the facts
of his case more closely resemble the second category. Where a habeas petitioner fails to show cause
and prejudice for procedural default, a habeas court may still consider the barred claim “in an
extraordinary case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (dictum). Under one form
of actual innocence, the petitioner must demonstrate that “new reliable evidence” proves that “it is
more likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” Schlup, 513 U.S. at 327 (applying this rule to a claim barred as abusive). Such actual
innocence does not form a claim in itself, but instead only a “gateway” showing that permits an
otherwise-barred abusive or successive petition, or lifts a procedural bar. Id. at 315. In Souter v.
Jones, 395 F.3d 577 (6th Cir. 2005), this court recognized an actual innocence ground for equitably




                           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.
        (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).
No. 03-2523                Ross v. Berghuis                                                                        Page 5


tolling AEDPA’s statute of limitations, with the same contours as the Schlup rule.3 Following
Schlup, Souter requires the petitioner to prove that new reliable evidence establishes his innocence
by a more-likely-than-not standard. Id. at 602.
        Ross’s case falls outside Souter, and precedent therefore does not require equitably tolling
the statute of limitations on his petition. Ross does not claim to have provided new evidence, as
required by Souter; he does not argue that he did not commit the acts giving rise to his conviction.
See Calderon v. Thompson, 523 U.S. 538, 560 (1998). Instead, Ross contends that his conviction
is void because AWIR-U does not form a predicate for felony murder.
        Ross nonetheless encourages us to extend Souter’s rule to claims of “innocence of the
penalty.” Appellant’s Br. at 24. The Supreme Court held in Sawyer v. Whitley, 505 U.S. 333
(1992), that habeas courts may reach the merits of defaulted, successive, or abusive habeas claims
when a capital petitioner is “innocent of death.” Id. at 335-336, 341. In Sawyer, the petitioner
alleged that the jury improperly determined that he committed arson, and therefore improperly found
him eligible for the death penalty. Arson was the predicate felony allowing the petitioner’s
conviction for first-degree murder, and it also formed an aggravating factor in the sentencing phase
of the petitioner’s trial. The Court held that, to show actual innocence, a petitioner must prove “by
clear and convincing evidence that, but for a constitutional error, no reasonable juror would 4have
found the petitioner eligible for the death penalty under the applicable state law.” Id. at 336. Id.
at 336. Significantly, Sawyer created a steeper burden of proof on the petitioner than the standard
Schlup imposed for assertions of actual innocence based on new facts. See Calderon, 523 U.S. at
560 (distinguishing Sawyer and Schlup tests). In requiring clear and convincing evidence, the Court
in Sawyer sought to maintain the “narrow” and “objective” nature of the actual innocence standard.
Sawyer, 505 U.S. at 341. Sawyer’s “innocence of the penalty” test applies to the finding of any
special factor making the petitioner eligible for the death penalty, whether the factor forms an
element of the offense of first-degree murder, or a sentencing enhancer. Id. at 345; Calderon,
523 U.S. at 560. As the petitioner did in Sawyer, Ross is challenging the validity of the finding that
a felony, AWIR-U, made Ross eligible for first-degree murder, and therefore also made Ross
eligible for the severest punishment Michigan law imposes. Thus, ruling for Ross would require us
to apply Souter equitable tolling for a type of actual innocence claim that the Supreme Court has


         3
            The AEDPA statute of limitations allows the filing period to restart from “the date on which the factual
predicate of the claim or claims could have been discovered through the exercise of due diligence,” or from the date a
new, retroactively applicable constitutional right is announced, if these dates are later than the date the judgment becomes
final. Id. § 2244(d)(1)(C)-(D). The statute does not explicitly permit equitable tolling for assertions of actual innocence,
as a gateway assertion unrelated to the substantive habeas claims. Souter concluded that Congress did not foreclose such
a tolling rule either by codifying narrower actual innocence exceptions in AEDPA’s second-or-successive-petition and
evidentiary-hearing provisions, or by specifying certain events that would delay the start of the limitations period. Id.
at 599-600.
         4
           Both Schlup and Sawyer involved whether actual innocence may excuse the bar on successive or abusive
habeas petitions; however, the language of those holdings made clear that they also apply more broadly to procedurally
defaulted claims. See Schlup, 513 U.S. at 318; Souter, 395 F.3d at 599 (“Following the passage of AEDPA, the courts
of appeals . . . have continued to apply the Schlup actual innocence exception to cases involving other types of procedural
default, such as where the default is based on adequate and independent state-law grounds.”). Subsequently, AEDPA
codified an actual innocence exception to the bar on second or successive petitions, in 28 U.S.C. § 2244(b)(2)(B). This
section adopts Sawyer’s strenuous requirement of “clear and convincing evidence” of actual innocence, rather than
Schlup’s required showing that it is “more likely than not” that a jury would not convict the petitioner. At the same time,
the provision requires the petitioner to prove that “no reasonable factfinder would have found the applicant guilty of the
underlying offense” but for constitutional error. Id. § 2244(b)(2)(B)(ii) (emphasis added). The circuits are split as to
whether § 2244(b)(2)(B)(ii) bars a petitioner from proving that, but for an error, a jury would not have imposed an
aggravating factor warranting the death penalty. See LaFevers v. Gibson, 238 F.3d 1263, 1267-1268 (10th Cir. 2001).
AEDPA’s provision barring evidentiary hearings on habeas claims whose factual basis the state court has not reviewed,
contains an identically worded “actual innocence” exception. 28 U.S.C. § 2254(e)(2).
No. 03-2523               Ross v. Berghuis                                                                      Page 6


treated differently from the type of actual innocence claim presented in Souter. It would also require
us to extend Sawyer’s “innocence of the penalty” analysis to non-capital penalties, inasmuch as Ross
was not sentenced to death. See Dretke v. Haley, 541 U.S. 386, 396 (2004) (noting that “[w]hether
and to what extent the [actual innocence] exception extends to non-capital sentencing error” is a
difficult unanswered question).
        It is however not necessary for us to decide whether Souter’s equitable tolling rule should
be extended to “innocence of the penalty” assertions of the sort addressed in Sawyer and, if so,
whether the rule should encompass non-capital cases such as this one. Because Michigan recognizes
assault with intent to rob as a predicate for felony murder, Ross has not demonstrated that he is
actually innocent of life imprisonment. Michigan law does not provide a basis for the assertion of
innocence of the penalty here.
         Ross’s argument that he was actually innocent of the penalty of first-degree murder fails,
because the Michigan Court of Appeals has recognized that assault with intent to rob is a predicate
for first-degree murder. Both the version of Michigan’s first-degree murder statute in effect in 1986
and the current version include attempted robbery as a predicate offense for felony murder. Mich.
Comp. Laws § 750.316 (1968), amended by 1980 Mich. Pub. Acts No. 28; Mich. Comp. Laws
§ 750.316(b) (2004). In People v. Akins, 675 N.W.2d 863 (Mich. Ct. App. 2003), the Michigan
Court of Appeals held that assault with intent to rob while armed is a proper predicate offense for
felony murder. Id. at 869. The court noted that the State relied on the Michigan Court of Appeals’
vacated opinion in People v. Ross, 618 N.W.2d 774 (Mich. Ct. App. 2000), this petitioner’s second
state postconviction application, to argue that assault with intent to rob was a felony-murder
predicate. (The Michigan Supreme Court ultimately vacated this opinion when it found Ross’s
claim procedurally barred.) Akins noted in dicta that Ross reached the right result in holding that
assault with intent to rob (unarmed) was a predicate offense. The Ross court had, however,
inappropriately speculated about the legislature’s intent when it concluded that, because AWIR-U
was a more dangerous offense than attempted robbery unarmed, it was impossible that the legislature
wished for only the latter to form a predicate to felony murder. Id. at 871 n.9.
        Akins reasoned that the Michigan felony-murder statute unambiguously included attempted
armed robbery as a predicate offense. The court acknowledged        that attempted armed robbery and
assault with intent to rob while armed are different offenses.5 Id. at 872. However, as early as
1972, the Michigan Supreme Court had decided that “attempted armed robbery is a lesser included
offense of assault with intent to rob while armed.” Id. (quoting People v. Patskan, 199 N.W.2d 458
(Mich. 1972)). Thus, Akins concluded, “attempted robbery is established every time assault with
intent to rob is established.” Id. The only element distinguishing the two is that assault with intent
to rob requires, in addition to all the elements of attempted robbery, assault with force and violence.
Id. (citing Gardner, 265 N.W.2d at 5). Therefore, the court reasoned, if attempted robbery is a
predicate offense for felony murder, then the assault offense must also be. While Akins directly
addressed only the armed variant of assault with intent to rob, the opinion’s reasoning applies with
equal force to AWIR-U, since attempted unarmed robbery is also a lesser-included offense of
AWIR-U, and attempted robbery, even unarmed, forms a predicate for felony murder. The
applicability of Akins to this case is even more apparent since Akins embraced the result reached in


         5
           At oral argument, counsel for Ross conceded that, if Akins properly determined that assault with intent to rob
is a predicate offense for felony murder, then Ross is not entitled to equitable tolling. Counsel asserted, however, that
Akins is incorrect. Counsel noted that the Michigan Supreme Court, in People v. Gardner, 265 N.W.2d 1 (Mich. 1978),
concluded that AWIR-U is a different offense from attempted unarmed robbery. Gardner does not cast doubt on the
Michigan Court of Appeals’ reasoning in Akins. In Gardner, the Michigan Supreme Court held that the chief difference
between AWIR-U and attempted unarmed robbery is that an assault is essential to AWIR-U. Id. at 5. This, the court
reasoned, accounted for the fact that attempted robbery unarmed carries a five-year term of imprisonment, while AWIR-
U carries a fifteen-year term. Id. at 5 n.1. This reasoning is consistent with Akins.
No. 03-2523           Ross v. Berghuis                                                       Page 7


the Michigan Court of Appeals’ vacated Ross opinion. See 675 N.W.2d at 871 n.9. The Michigan
Supreme Court denied review. People v. Akins, 682 N.W.2d 87 (Mich. 2004).
         While Akins is a recent decision, it applied principles in place at the time Ross was
convicted. The Akins conclusion that assault with intent to rob forms a predicate to felony murder
did not rely on modifications to Michigan’s felony-murder statute subsequent to Ross’s 1986
conviction. Further, the cornerstone of the Akins analysis—the conclusion that attempted robbery
is a lesser-included offense within assault with intent to rob—appeared in People v. Patskan, a 1972
Michigan Supreme Court case. As noted above, Akins provides no reason to distinguish between
the unarmed and armed variants of assault with intent to rob, in concluding that the offense forms
a predicate for felony murder. Therefore Ross’s claim of innocence of the penalty fails because, both
now and at the time of Ross’s conviction, the offense of assault with intent to rob, either armed or
unarmed, supports a conviction for first-degree felony murder in Michigan.
        For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to
the State of Michigan.
