                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0780n.06
                           Filed: December 23, 2008

                                           No. 04-2075


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

DAVID E. CONNOLLY,

       Petitioner-Appellant,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
CAROL HOWES,                                         WESTERN DISTRICT OF MICHIGAN

       Respondent-Appellee.

                                               /


BEFORE:        BATCHELDER, CLAY and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Petitioner David E. Connolly (“Connolly”) appeals the district

court’s order dismissing his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 for

failure to comply with the statute of limitations. On appeal, Connolly argues that he is entitled to

equitable tolling because of actual innocence. For the reasons that follow, this Court AFFIRMS the

district court and dismisses Connolly’s petition.

                                        BACKGROUND

I. Investigation of Alleged Abuse

       In May 1992, Connolly and Linda Stiles (“Stiles”) lived in Grand Rapids, Michigan with their

son and three daughters. On May 22, 1992, during a routine pre-school assessment interview, a

school readiness counselor asked one of Connolly’s daughters, who was four years old, what her
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father does. The girl answered, “[h]e gets up in the middle of the night.” The counselor asked, “[t]o

go to work?” The girl responded no, and when asked again what her father does, she said, “[p]uts his

middle finger in my butt.” (J.A. at 48) When asked if her father hurt her, she nodded. The counselor

reported the girl’s statements to the Kent County Office of Child Protective Services (“Protective

Services”). Debra Benner (“Benner”) investigated the matter for Protective Services, and Christine

Karpowicz (“Karpowicz”), an officer with the Grand Rapids Police Department, investigated as well.

       Upon learning that the girl was scheduled for a pre-kindergarten medical examination, Benner

asked the girl’s physician to give her a gynecological exam. The exam took place on June 8, 1992.

The physician reported that the girl had a one to two millimeter tear in her anus, and that while the

tear was consistent with sexual abuse, it could also have resulted from other causes, including

constipation. Stiles did not view the exam as corroborating the girl’s allegation, because the doctor

estimated that the tear was only two to three days old, and Stiles had kept Connolly away from the

children since the allegations first surfaced on May 22.

       Benner interviewed the girl, who told Benner that “Daddy comes in bedroom” and “[d]oes

something naughty,” and, when asked if it was good or bad when her father hugged her, she said,

“bad.” (J.A. at 49) Benner also interviewed the girl’s six-year-old brother, who said that “there was

no way” his sister’s allegation was true. (J.A. at 49) On June 8, 1992, Benner interviewed Stiles,

who told Benner that Connolly had been accused in 1983 of sexually abusing a four-year-old. Stiles

also told Benner that “if anyone sexually abused the kids, it would have to be their father,” since he

was the only one that ever watched them besides her. (J.A. at 50)




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       Benner then interviewed Connolly, who told her that he had been in prison fourteen years

earlier for attempting to rape a twenty-year old girl in 1978. Connolly said that he attempted to rape

the twenty-year-old because he was on drugs at the time. Connolly acknowledged the child

molestation accusation from 1983 and volunteered that he had actually been accused of molesting two

four-year-olds at the time, but said that he had passed polygraph tests with respect to both incidents.

He also volunteered that he had twice beaten Stiles, but that he was not aware he had done so until

the following mornings and attributed his lack of awareness to alcohol. Connolly told Benner he was

scheduled to take a polygraph test on July 9, 1992 in regard to his daughter’s allegation.

       Benner learned from Karpowicz that the polygraph test Connolly took on July 9, 1992 was

inconclusive. Karpowicz also told Benner that Connolly had not passed either of the polygraph tests

he took in 1983 with regard to the earlier sexual abuse allegations. Benner asked Karpowicz for

documentation of the tests, but never received any.

       In January 1993, Benner wrote a report detailing her investigation, in which she concluded

that she could not substantiate the alleged sexual abuse. She consequently closed Protective Services’

investigation into the matter. In October 1993, Karpowicz submitted to the prosecutor’s office her

police report from her own investigation into the allegation. On November 11, 1993, Karpowicz

requested that Protective Services re-open its investigation into the case. A different investigator at

Protective Services concluded his investigation in January 1994, finding contradictions between

Benner’s findings and Karpowicz’ police report.




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II. Connolly’s Legal Proceedings1

       On October 28, 1993, Connolly was arrested and charged with first-degree criminal sexual

conduct in Kent County Circuit Court. On November 9, 1993, Connolly appeared before the circuit

court for a preliminary examination, during which his daughter repeated her allegation that her father

had inserted his middle finger in her anus. On April 12, 1994, the circuit court conducted another pre-

trial hearing, with the prosecutor and defense counsel both present. At the April 12 hearing, Benner

testified that she did not believe Connolly’s daughter had been sexually abused, and defense counsel

was handed a copy of Benner’s January 1993 report.

       On June 21, 1994, the morning of trial, the circuit court delayed ruling on two motions in

limine: one concerning proposed prosecution witnesses who would testify about Connolly’s prior

attempted rape in 1978 and alleged molestations of two four-year-olds in 1983; and one concerning

whether the prosecution could bring up Connolly’s alleged drug and alcohol abuse. However,

because the prosecutor referred to Connolly doing “harmful things when he drinks alcohol” in her

opening statement later that day, the court granted Connolly’s motion for a mistrial.

       Connolly’s trial was rescheduled for June 27, 1994, and on that day, the case was reassigned

to another circuit judge, Judge Dennis C. Kolenda, for immediate jury selection. Connolly appeared

before Judge Kolenda that day with newly appointed counsel, and at that time informed the court of

his intent to enter a no contest plea. Connolly’s appointed counsel now asserts that he advised



       1
         Connolly moves to enlarge the record to provide background into his legal proceedings prior
to his plea. This Court denies his motion, because the additional information would not affect the
outcome of Connolly’s appeal. Nevertheless, this Court recounts herein the additional facts
Connolly alleges to help clarify his actual innocence claim.

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                                            No. 04-2075

Connolly to plead largely because he believed the trial judge would have allowed the victims of

Connolly’s alleged prior sexual abuse to testify at trial.2 At the plea hearing, when Judge Kolenda

asked Connolly if he was prepared to plead, Connolly responded, “in view of circumstances beyond

my control, I will plead no contest. However, I want to state on the record that I am not guilty.” (J.A.

at 65-66) Judge Kolenda asked Connolly if he understood the charges, and that a plea of no contest

would mean a conviction and a sentence of five to twenty years of imprisonment, as per the plea

agreement. Connolly responded that he understood. Connolly’s counsel informed the court that

Connolly’s reason for pleading was that drugs or alcohol impaired his memory of the event.

       On the day of his sentencing, Connolly moved to withdraw his no contest plea. Judge

Kolenda denied the motion and sentenced Connolly to five to twenty years of imprisonment, a

sentence that Connolly is still serving.

III. Post-Conviction History

       Connolly appealed his conviction to the Michigan Court of Appeals, which denied Connolly’s

appeal, and on August 30, 1996, the Michigan Supreme Court denied his application for leave to

appeal. Connolly did not seek to appeal to the United States Supreme Court, and the ninety-day

appeal period to do so expired on November 28, 1996. On April 2, 1997, Connolly filed a petition

for a writ of habeas corpus in the Western District of Michigan. On January 6, 1998, the district court

dismissed Connolly’s petition for failure to exhaust. Connolly finally filed a motion for collateral

relief in Kent County Circuit Court on October 2, 2002, a motion that the circuit court denied on



       2
        Apparently, another judge was expected to preside over the trial itself. Appellant’s Br. at
12-13 n.4.

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October 14, 2002. The Michigan Supreme Court denied him leave to appeal the denial of collateral

relief on October 31, 2003.

        Beginning shortly after he was sentenced, Connolly tried on several occasions to obtain a

transcript from the April 12, 1994 hearing at which Benner stated her belief that he was innocent.

Connolly was repeatedly informed, first by court reporters and then by Judge Kolenda, that because

there was no record on the docket sheet of the April 12 hearing, the hearing must not have taken

place. By order dated May 25, 2000, Judge Kolenda acknowledged that the hearing did in fact take

place and that a transcript was available.

        Connolly filed this petition for habeas relief in the Western District of Michigan on April 8,

2004. In his petition, Connolly raised four claims: (1) that his plea was not made knowingly, because

it was induced by fraud and coercion; (2) that Karpowicz falsified information to secure a warrant;

(3) that he received ineffective assistance of counsel; and (4) that the ineffective assistance of counsel

“causing a due process violation due to missing transcripts.” (J.A. at 10-11) On August 5, 2004, the

district court dismissed Connolly’s habeas petition as time-barred and denied Connolly a certificate

of appealability. On August 3, 2005, this Court granted a rehearing and a certificate of appealability

with respect to the limited question of whether the statute of limitations was equitably tolled in

Connolly’s case due to his actual innocence.

                                             DISCUSSION

I. Standard of Review

        “The dismissal of a habeas petition by the district court as barred by 28 U.S.C. § 2244’s statute

of limitations is reviewed de novo.” Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002).


                                                    6
                                           No. 04-2075

II. Equitable Tolling

       Federal habeas petitioners in custody pursuant to a judgment in a state court must file their

petitions within one year of the date judgment becomes final on direct review or the time to seek such

review expires, unless circumstances not relevant here exist. 28 U.S.C. § 2244(d)(1)(A). Connolly’s

one-year limitations period to seek habeas relief began on November 28, 1996, when his time to

appeal his conviction to the United States Supreme Court expired. Although Connolly filed a federal

habeas petition on April 2, 1997, a federal habeas petition does not toll the limitations period.

Duncan v. Walker, 533 U.S. 167, 172 (2001). The limitations period therefore expired on November

27, 1997, and Connolly did not file this habeas petition until April 8, 2004.

       “Because [the] 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. 2001). “[E]quitable tolling of the one-year

limitations period based on a credible showing of actual innocence is appropriate.” Souter v. Jones,

395 F.3d 577, 599 (6th Cir. 2005). However, “[t]his Circuit has repeatedly cautioned that equitable

tolling relief should only be granted sparingly.” Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).

“‘[A]ctual innocence means factual innocence, not mere legal insufficiency.’” Souter, 395 F.3d at

590 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). “The petitioner bears the burden

of demonstrating that he is entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494

(6th Cir. 2003). A petitioner may claim actual innocence for the purposes of equitable tolling, even

if his conviction was the result of a plea. Bousley, 523 U.S. at 623; see also Waucaush v. United




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States, 380 F.3d 251, 258 (6th Cir. 2004) (finding petitioner actually innocent of charge to which he

pled guilty).

        However, “[w]ithout any new evidence of innocence, even a concededly meritorious

constitutional violation is not in itself sufficient” to reach the merits of a time-barred claim. Schlup

v. Delo, 513 U.S. at 298, 316 (1995). Therefore, to demonstrate the actual innocence that would

allow a court to consider a time-barred constitutional claim, a habeas petitioner must present

“evidence of innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of nonharmless constitutional error[.]” Id. The

petitioner’s evidence must include “new reliable evidence–whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence–that was not presented at

trial.” Schlup, 513 U.S. at 324. Although the examples of new evidence cited in Schlup “were not

meant to be an exhaustive list of everything upon which an actual innocence claim may be based,”

Souter, 395 F.3d at 595 n.8, “the Schlup standard is demanding and permits review only in the

‘extraordinary’ case,” House v. Bell, 547 U.S. 518, 538 (2006) (citation omitted). A court presented

with new evidence must consider it in light of “‘all the evidence,’ old and new, incriminating and

exculpatory,’ without regard to whether it would necessarily be admitted under rules of admissibility

that would govern at trial.” House, 547 U.S. at 538 (citation omitted). After viewing all of the

evidence, if “it is more likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt,” the petitioner’s gateway claim of actual innocence is granted. Schlup,

513 U.S. at 327.




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                                             No. 04-2075

        Connolly’s evidence in support of his claim of actual innocence includes: (1) Benner’s January

1993 investigative report, in which she concluded that the girl’s allegations were unsubstantiated; (2)

Benner’s testimony at the April 12, 1994 hearing in which she stated her conclusion that the girl had

never been abused; and (3) Protective Services’ January 1994 report, in which its investigator notes

contradictions between Karpowicz’ police report and Benner’s investigative report. Because all of

this evidence was available to Connolly when he pled on June 27, 1994 and would have been

available to him at trial, none of it is “new.” See Souter, 395 F.3d at 590.

        Connolly argues that Benner’s testimony at the April 12, 1994 hearing should be considered

“new” evidence because it never appeared on the trial court’s docket sheet and no transcript of the

hearing was obtainable until 2000. However, there is no evidence that the hearing took place outside

Connolly’s presence, and Connolly’s counsel was certainly present. Accordingly, the substance of

Benner’s testimony was available to Connolly from the moment she gave it at the hearing. Further,

Connolly’s counsel was handed a copy of Benner’s January 1993 report detailing her investigation

and containing all of the facts to which Benner could have testified at the hearing. While the

examples of new evidence cited in Schlup “were not meant to be an exhaustive list,” Souter, 395 F.3d

at 593 n.8, Connolly offers no authority for finding that a long-lost transcript of an evidentiary hearing

that he presumably attended could constitute such evidence. Because Connolly has not presented any

new evidence, his claim of actual innocence must fail. See Souter, 395 F.3d at 590.

        Even if this Court were to consider all of the purportedly exculpatory evidence Connolly

presents on this appeal, this Court still would not be able to conclude that “it is more likely than not

that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” See Schlup,


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                                            No. 04-2075

513 U.S. at 327. Because Connolly is claiming actual innocence after having entered a no-contest

plea, this Court considers “any admissible evidence of petitioner’s guilt even if that evidence was not

presented during petitioner’s plea colloquy[.]” Bousley, 523 U.S. at 624. This Court looks not just

at the facts to which Connolly admitted when he pled, but also at “any other evidence of his guilt that

the Government has marshaled.” Waucaush, 380 F.3d at 255. Connolly’s evidence essentially boils

down to Benner’s testimony that she was unable to substantiate the allegation and possible testimony

from the second investigator at Protective Services that Karpowicz’ findings were questionable.

While the extent of the government’s evidence is unclear from the record, the government could have

offered Karpowicz’ testimony detailing her own investigation. More importantly, the government

could have called the alleged victim, who had already testified at a preliminary examination that

Connolly had abused her. Stiles could also have testified that Connolly was the only person who

“watched” his daughter and had the opportunity to molest her.

       Moreover, if the testimony of the victims of Connolly’s alleged prior sexual assaults were

admissible, such evidence would have been extremely damaging to Connolly; one of the witnesses

would have testified that Connolly molested her when she was the same age as Connolly’s daughter.

Connolly’s counsel believed the trial judge would have permitted the testimony. While such evidence

probably would not have been admissible pursuant to M.R.E. 404(b), this Court cannot say

definitively that the state trial would not, or should not, have exercised its discretion to admit the

testimony, without knowing the details of the proposed testimony.3


       3
         Under M.R.E. 404(b), evidence of prior bad acts may be admissible to show “proof of
motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge,
identity, or absence of mistake or accident when the same is material, whether such other crimes,

                                                  10
                                            No. 04-2075

        Regardless, because the case would have turned on the credibility of the respective parties’

witnesses, this Court cannot find it likely that no reasonable juror would have found Connolly guilty.

In sum, not only does the evidence Connolly offers on this appeal fail to constitute “new reliable

evidence,” but it also is not “so strong that a court cannot have confidence in the outcome” of the

plea. See Schlup, 513 U.S. at 316. Accordingly, the statute of limitations cannot be equitably tolled.

                                          CONCLUSION

       For the reasons set forth above, the judgment of the district court is AFFIRMED and the

petition is dismissed.




wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.”
However, “where the conduct offered consists merely in the doing of other similar acts, it is obvious
that something more is required than that mere similarity, which suffices for evidencing intent.”
People v. Sabin, 614 N.W.2d 888, 899 (Mich. 2000) (quotations and citations omitted). Determining
whether such evidence should be considered here exemplifies the problems with analyzing the
“actual innocence” of a petitioner who pled before trial. See Smith v. Baldwin, 510 F.3d 1127, 1140
n.9 (9th Cir. 2007) (en banc) (“We are aware of a potential incongruity between the purpose of the
actual innocence gateway announced in Schlup and its application to cases involving guilty (or no
contest) pleas.”).

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                                          No. 04-2075

       SUTTON, Circuit Judge, concurring. I concur in Judge Clay’s thoughtful opinion and write

only to mention two additional points. One concerns the question of “new evidence.” Given the

weaknesses in Connolly’s “new evidence” argument, we need not address a problem that has

concerned the other circuits—namely, whether there is a meaningful difference between “newly

discovered” and “newly presented” evidence. See Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir.

2006); United States v. Davies, 394 F.3d 182, 191 n.8 (3d Cir. 2005); Gomez v. Jaimet, 350 F.3d 673,

679 (7th Cir. 2003); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003); see also Osborne v.

Purkett, 411 F.3d 911, 920 (8th Cir. 2005). The second point relates to the Rule 404(b) question.

Connolly, I would add, has declined to argue that we may not consider this evidence in deciding

whether he has established an actual-innocence claim.




                                                12
                               No. 04-2075

BATCHELDER, Circuit Judge, concurring and also joins in the separate concurrence.




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