                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0735n.06

                                           No. 12-4213                                  FILED
                                                                                    Aug 08, 2013
                                                                                DEBORAH S. HUNT, Clerk
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JEFFREY E. EBERLE,                                )
                                                  )
       Petitioner-Appellant,                      )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR
                                                  )    THE SOUTHERN DISTRICT OF
WARDEN, MANSFIELD CORRECTIONAL                    )    OHIO
INSTITUTION,                                      )
                                                  )
       Respondent-Appellee.                       )           OPINION
                                                  )

       Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. In September 2006, Jeffrey Eberle pled guilty in an

Ohio court to aggravated murder and was sentenced to life imprisonment with the possibility of

parole. Eberle did not appeal. Nearly three years later, however, Eberle filed a motion to withdraw

his guilty plea, which the Ohio courts ultimately denied in December 2010. A year later, Eberle

sought habeas relief in federal district court. The state urged that Eberle’s time-barred petition

should be dismissed and the district court agreed. We do too and AFFIRM its order dismissing

Eberle’s habeas petition.

                                      I. BACKGROUND

       Jeffrey Eberle pled guilty in September 2006 to aggravated murder under Ohio state law.

Represented by counsel, Eberle admitted that he “purposely and with prior calculation” caused the

death of Michael Fish. Eberle specifically agreed that on the night of December 14, 2005, he and
Jeffrey Eberle v. Warden, No. 12-4213
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Jason Evick took Fish to a secluded location where Eberle assaulted Fish with a shovel. Fish died

of blunt force trauma. In exchange for his plea, the prosecution dismissed all other charges against

Eberle. Eberle was sentenced to life imprisonment with the possibility of parole after serving 20

years.

         Eberle did not appeal from his sentence or conviction but, nearly three years after he was

sentenced, he filed a motion to withdraw his guilty plea on July 20, 2009. The motion was based

largely on the work of Orrin Nordstrom, a private investigator who tracked down potential leads in

Eberle’s case from May 2007 to December 2008. In it, Eberle complained that his trial counsel

failed to tell him the contents of an allegedly damaging statement that a witness, Ryan Goodman,

planned to make at trial, despite Eberle’s request to learn what Goodman had to say. Eberle also

faulted his counsel for failing to investigate the potential testimony of Amanda Fugate, Evick’s

girlfriend at the time of Fish’s murder, who allegedly told police that Evick admitted to killing Fish.

And springing from this last factual bit, Eberle finally alleged that the prosecution’s failure to

disclose Evick’s admission violated Brady v. Maryland, 373 U.S. 83 (1963). To support his claims,

Eberle attached affidavits from Goodman, the witness, and Nordstrom, the investigator, and

submitted one himself. Eberle’s bottom-line claim was that he would not have pled guilty had he

known of Goodman’s statement and Evick’s admission.

         The trial court denied Eberle’s withdrawal motion on September 23, 2009. Eberle sought

review in the state court of appeals. As before, he claimed only that he would not have pled guilty

but for counsel’s ineffectiveness and the government’s misconduct. During oral arguments, the

appellate panel sua sponte asked whether Eberle’s plea was invalid because the trial court wrongly
Jeffrey Eberle v. Warden, No. 12-4213
Page 3

informed Eberle that he was subject to a mandatory five-year term of postrelease control if and when

he was released from prison. (The court intuited an error because the crime to which Eberle pled

guilty, aggravated murder, is an unclassified felony in Ohio that does not carry a mandatory

postrelease-control term. See State v. Clark, 893 N.E.2d 462, 470 (Ohio 2008)). The court requested

supplemental briefing on the issue, and asked the parties to weigh in on whether Eberle’s case should

be returned to the trial court for further proceedings.

        On the merits of Eberle’s claims, the appellate court affirmed the trial court’s denial on

August 2, 2010. On the postrelease-control issue, however, the court decided that the trial court

erred in its explanation. That error, though, did not necessitate sending the case back down for

resentencing; instead, the reviewing court simply vacated the postrelease-control portion of the lower

court’s sentencing entry. The Ohio Supreme Court denied Eberle leave to appeal on December 15,

2010.

        A year later, on December 13, 2011, Eberle filed his federal habeas corpus petition setting

forth the same grounds of relief raised in his withdrawal motion—constitutionally ineffective

assistance of counsel and governmental misconduct. See 28 U.S.C. § 2254. The magistrate judge

concluded that Eberle’s petition was time-barred under two alternative time-limit provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214 (1996). Under the first, 28 U.S.C. § 2244(d)(1)(A), the statute of limitations expired in

October 2007, one year after the deadline passed to appeal the September 2006 state-court judgment.

Despite Eberle’s arguments to the contrary, the magistrate judge found that neither Eberle’s plea-

withdrawal motion nor the state appellate court’s sentence modification served to restart the one-year
Jeffrey Eberle v. Warden, No. 12-4213
Page 4

statute of limitations under § 2244(d)(1)(A). Under the second applicable limitations provision, 28

U.S.C. § 2244(d)(1)(D), the magistrate judge found that the petition was still untimely, even if the

court agreed with Eberle that the clock was tolled while his plea-withdrawal motion wended its way

through the state courts.

        The magistrate judge then considered whether Eberle was entitled to equitable tolling, which

might otherwise save his late-filed petition, finding he was not because his failure to file on time did

not unavoidably arise from circumstances beyond his control. After finally concluding that Eberle’s

claim of actual innocence was untenable, the magistrate judge recommended that Eberle’s time-

barred petition be dismissed.

        The district court adopted the magistrate judge’s report. In doing so, it evaluated a

supplemental affidavit from Nordstrom—narrating Nordstrom’s unsuccessful efforts to obtain an

affidavit from Fugate directly—that Eberle submitted along with his objections to the magistrate

judge’s report. Even with the supplemental affidavit, the court maintained that Eberle still failed to

establish a credible claim of actual innocence that would allow it to consider his otherwise untimely

claims. The district court dismissed Eberle’s petition but granted him a certificate of appealability

that enables review of “the procedural statute of limitations issue” raised in Eberle’s case. We turn

to that now. See 28 U.S.C. § 2253.

                                           II. ANALYSIS

        We review a district court’s dismissal of a time-barred habeas petition de novo, but assess

its factual findings—to the extent it makes any—under the deferential clear-error standard. King v.

Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Souter v. Jones, 395 F.3d 577, 584 (6th Cir. 2005).
Jeffrey Eberle v. Warden, No. 12-4213
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       AEDPA sets a one-year statute of limitations for state prisoners seeking federal habeas corpus

relief, and lays out four ways to count that period. Just two are relevant here. The one-year filing

period may run from “the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

Alternatively, it may begin on “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” Id. § 2244(d)(1)(D).

Under either provision, a running limitations period may be tolled when “a properly filed application

for State post-conviction or other collateral review with respect to the pertinent judgment or claim

is pending.” Id. § 2244(d)(2).

       A. Finality of the judgment

       Analyzed under § 2244(d)(1)(A), Eberle was required to file his petition by October 19, 2007.

Eberle did not appeal his conviction by the trial court, so it became final on October 19, 2006, 30

days after the court entered its judgment. See Ohio App. R. 4(A). His one-year limitations period

thus began to run on October 20, 2006, and expired one year later. Although a tolling action filed

during this time could have extended the period, none was filed. Because Eberle did not file a

habeas petition until December 13, 2011—long after October 2007—his petition is time-barred

under § 2244(d)(1)(A).

       Eberle tries to escape this conclusion in two ways, but neither one helps him. First, he argues

that his conviction was not final in 2006 because the plea-withdrawal motion he filed on July 20,

2009, served to “reset” the one-year clock with respect to the claims made in it. Eberle contends that

as long as a state motion is timely under state law, it is timely for federal-habeas purposes too.
Jeffrey Eberle v. Warden, No. 12-4213
Page 6

       We see it differently. Although this court has not directly addressed whether a motion to

withdraw a guilty plea in Ohio resets AEDPA’s one-year clock or otherwise alters the date on which

a conviction becomes “final” under § 2244(d)(1)(A), Eberle’s answer to these questions cuts against

the grain of AEDPA’s purpose and our precedents. AEDPA sets strict filing deadlines in order to

promote the finality of convictions and curb dilatory tactics. See Carey v. Saffold, 536 U.S. 214, 222

(2002) (the one-year filing rule works to “prevent[] prisoners from delaying their federal filing”);

Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (“AEDPA seeks to eliminate delays in the federal

habeas review process.”). To that end, a conviction is “final” under AEDPA once direct review is

completed or the time for seeking it expires. But if Eberle’s view were the law—if after AEDPA’s

statute of limitations had fully expired it could be restarted when a petitioner filed a motion to

withdraw his guilty plea, even where, as here, the state places no deadline on its filing, see State v.

Bush, 773 N.E.2d 522, 525–26 (Ohio 2002)—habeas petitioners could indefinitely extend the

limitations period by delaying the filing of a withdrawal motion. This reading flushes the meaning

out of AEDPA’s one-year statute of limitations and upends the statute’s goal of heading off

unwarranted delay.

       Our cases similarly reject the view that a plea-withdrawal motion restarts AEDPA’s one-year

clock. In Searcy v. Carter, we held that the denial of a motion for delayed appeal—which enables

a defendant to file a delayed appeal in Ohio’s high court after the time for seeking it expires—does

not “retrigger[]” AEDPA’s statute of limitations. 246 F.3d 515, 519 (6th Cir. 2001). We reasoned

that holding otherwise would “effectively eviscerate” the one-year limitation, since a motion for

delayed appeal, just like a plea-withdrawal motion, can be sought “at any time, even many years after
Jeffrey Eberle v. Warden, No. 12-4213
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conviction.” Id. (internal quotation marks omitted). AEDPA’s statute-of-limitations provision

would thus be “meaningless” and “effectively eliminated.” Id. (internal quotation marks omitted).

A year earlier, in Bronaugh v. Ohio, we similarly concluded that 2244(d)(1)(A)’s one-year clock

does not run anew after an Ohio appellate court denies a defendant’s application to reopen his direct

appeal due to ineffective assistance of appellate counsel. 235 F.3d 280, 286 (6th Cir. 2000); see also

Ohio R. App. P. 26(B).

        The upshot of these cases is twofold. First, they rebut Eberle’s claim that the permanent

availability of state-made avenues to challenge the validity of a conviction or sentence bars a

conviction from ever becoming final for AEDPA purposes. And second, they reflect that resort to

such avenues will not necessarily restart the one-year limitations period. (That said, both Searcy and

Bronaugh recognize that the review procedures in question may toll the limitations period. Tolling,

though, “can only serve to pause a clock that has not yet fully run”; it does not “revive the limitations

period” or “restart the clock at zero.” Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)

(internal quotation marks omitted). So while Eberle’s plea-withdrawal motion could have stopped

the running of the clock had it been filed in the one-year window that closed in October 2007, it was

not filed then. After the window closed, there was nothing left to toll.)

        Eberle responds that he could not litigate his § 2254 petition until fully appealing his plea-

withdrawal motion in state court because he was required to exhaust his state remedies. See 28

U.S.C. § 2254(b)(1)(A). Exhaustion under AEDPA requires a petitioner to “fairly present[]” each

claim in a § 2254 petition to the state courts before a federal court can review it. See Wagner v.

Smith, 581 F.3d 410, 414 (6th Cir. 2009) (internal quotation marks omitted). But we have never
Jeffrey Eberle v. Warden, No. 12-4213
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suggested that a habeas petitioner in Ohio must file a plea-withdrawal motion to properly exhaust

his claims. Put simply, a failure to file this motion does not render a petitioner’s habeas claims

unexhausted.

        To escape the conclusion that his petition is time-barred under § 2244(d)(1)(A), Eberle

presses an alternative argument—that the August 2, 2010 appellate court decision vacating the part

of the trial court’s sentencing entry that imposed postrelease control amounted to a new sentence

that, in turn, restarted the statute of limitations. Eberle’s claim is based on the concept that a

judgment is only “final” under § 2244(d)(1)(A) after direct review of both the conviction and the

sentence. See Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam) (“Final judgment in a

criminal case means sentence. The sentence is the judgment.”) (internal quotation marks omitted).

So, for example, in the case of a petitioner whose conviction is affirmed on direct review but whose

case is remanded for resentencing because his initial sentence is infirm for some reason, the

judgment is “final” only after direct review of the punishment imposed at resentencing. See Rashad

v. Lafler, 675 F.3d 564, 567–69 (6th Cir. 2012). As a result, the AEDPA clock resets then.

        But does any sentencing modification constitute a “resentencing” sufficient to restart the

limitations period? We don’t see how it can. Take two examples. First, we have recognized (albeit

in an unpublished order) that when “a federal prisoner is resentenced following a Rule 35(b) motion

[to reduce a sentence for substantial assistance] . . . , the statute of limitations does not start from the

date of the resentencing judgment.” Reichert v. United States, 101 F. App’x 13, 14 (6th Cir. 2004)

(order). Other circuits have reached a similar conclusion. See, e.g., Murphy v. United States, 634

F.3d 1303, 1313 (11th Cir. 2011); United States v. Sanders, 247 F.3d 139, 142–43 (4th Cir. 2001).
Jeffrey Eberle v. Warden, No. 12-4213
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As well, a modification of a previously imposed sentence to afford presentence credits also does not

affect the date on which finality attaches for statute-of-limitations purposes. See, e.g., Graham v.

Smelser, 422 F. App’x 705, 707 (10th Cir. 2011). These authorities indicate that not every

modification that can be made to a sentence automatically restarts the statute of limitations.

       This case, however, does not require us to sort out where the precise line lies between

sentence modifications that are insufficient to restart the limitations period on the one hand, and new

sentences that are sufficient to do so on the other. Without laying down a rule to distinguish the two

poles, two observations about the alteration made to Eberle’s sentence persuade us that it did not

delay finality for habeas purposes. First, Eberle’s sentence was modified to remedy a technical error.

The change did not pertain to his underlying conviction, nor did it relate to the basis of the plea

bargain Eberle struck with the state. Second, as a technical error, his sentence was not remanded to

the trial court: no resentencing hearing was held, no new sentencing entry was filed, and no new

judgment issued. In these circumstances, a single sentence modification—which, notably, Eberle

did not raise in his withdrawal motion—is not a new sentence that restarts the AEDPA clock.

       Eberle’s petition is time-barred under § 2244(d)(1)(A), unless statutory or equitable-tolling

principles apply. We next consider whether Eberle’s petition fares any better under § 2244(d)(1)(D),

the only other statutory means to measure AEDPA’s limitations period in this case.

       B. Discovery of the factual predicate

       Eberle alternatively argues that his petition is timely under § 2244(d)(1)(D), which allows

the one-year filing period to run from “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” But even if we credit
Jeffrey Eberle v. Warden, No. 12-4213
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Eberle’s contention that his claims could not have been raised earlier, we still can’t see how Eberle’s

petition was filed within the limitations period.

       The timeline is critical to bear in mind. Eberle was convicted and sentenced on September

19, 2006. Beginning in May 2007 and continuing through December 2008, Nordstrom, Eberle’s

private investigator, tracked down potential witnesses with information regarding the murder.

Nordstrom’s affidavit, submitted with Eberle’s habeas petition, provides two facts on which Eberle

heavily relies. The first is that Amanda Fugate, Jason Evick’s girlfriend at the time of Michael

Fish’s death, told Nordstrom that Evick confessed to her that he killed Fish (a confession Fugate

allegedly reported to the police). The second is that Fish and Jeff Weldon, a potential unindicted

coconspirator, had an antagonistic relationship due to their involvement in illegal drug trafficking.

       Although the magistrate judge assumed without deciding that Eberle’s petition began to run

on May 26, 2009, the day that Eberle signed an affidavit recounting the details Nordstrom learned

through his investigation, we cannot do the same. Eberle “bears the burden of proving that he

exercised due diligence” in order for the statute of limitations to run from the date he discovered the

factual predicate of his claim. DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006). Recall that

Nordstrom wrapped up his investigation—which discovered each of the factual predicates of

Eberle’s claims for habeas relief—in December 2008. Yet it took Eberle five months to execute his

own affidavit, and two more months to file the withdrawal motion.

       The problem is less the delay and more Eberle’s failure to explain it. Eberle may not have

been able to file his affidavit or the plea-withdrawal motion sooner for many reasons—a medical

condition, prison transfer, or an inability to communicate with Nordstrom, for example. But Eberle
Jeffrey Eberle v. Warden, No. 12-4213
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has offered no facts for us to decipher the reasons behind the delay. In light of this failure, and the

fact that Eberle was counseled throughout these proceedings, Eberle has not made the showing

necessary to extend the start of the limitations period under § 2244(d)(1)(D) beyond December 31,

2008, the latest date on which Nordstrom completed his investigation.

        If Eberle’s one-year limitations period began on December 31, 2008, 201 days passed before

Eberle filed his plea-withdrawal motion on July 20, 2009. The parties agree that the limitations

period was tolled until the Ohio Supreme Court denied Eberle leave to appeal on December 15,

2010. They disagree, however, as to whether the 90-day period to apply for a writ of certiorari to

the United States Supreme Court following the Ohio Supreme Court’s denial paused the clock. The

underlying question is whether a plea-withdrawal motion under Ohio law is properly characterized

as post-conviction or collateral relief (the state’s position), or part of a defendant’s direct appeal

(Eberle’s view). If such a motion is collateral relief for AEDPA purposes, then there is no tolling

during the 90-day period. See Lawrence v. Florida, 549 U.S. 327, 332 (2007); see also Sherwood

v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009). But if a plea-withdrawal motion is considered part

of direct review, then the 90-day period may be tolled. See Clay v. United States, 537 U.S. 522,

527–28 (2003) (holding that “direct review” of a judgment of conviction is not “final” until the

United States Supreme Court has declined review or decided the case on the merits).

        We are not the first court to confront this question. In Bush, the Ohio Supreme Court held

that because a plea-withdrawal motion “targets the withdrawal of a plea” and is “not a collateral

challenge to the validity of a conviction or sentence,” it is properly seen as a part of the direct-review

process. 773 N.E.2d at 526 (internal quotation marks omitted); see also Colwell v. Tanner, 79 F.
Jeffrey Eberle v. Warden, No. 12-4213
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App’x 89, 91 (6th Cir. 1993) (stating in dicta that a plea-withdrawal motion falls within direct

review). Bush, however, is “authoritative only as a matter of state law,” not AEDPA. Lopez v.

Wilson, 426 F.3d 339, 351 (6th Cir. 2005) (en banc).

        We don’t have to delve too deeply into the issue here, however, since Eberle’s petition is

untimely whether or not the AEDPA clock paused during the 90-day period. As noted, Eberle used

up 201 of the 365 days he had to file his petition between the time he discovered the factual predicate

of his claims on December 31, 2008, and when he submitted his plea-withdrawal motion on July 20,

2009. The Ohio Supreme Court denied Eberle leave to appeal on December 15, 2010. Even if we

were to hold that the limitations period was tolled for the next 90 days, this only takes Eberle through

to March 15, 2011, after which the clock began to tick again. From that point until Eberle filed his

petition on December 13, 2011, 273 days passed. Put otherwise, Eberle had until August 26, 2011,

to file his petition under § 2244(d)(1)(D). Because he did not do so, his petition is time-barred.

        C. Equitable tolling

        That is true, of course, unless Eberle is entitled to equitable tolling. This doctrine, which

applies to AEDPA’s limitations period, see Holland, 130 S. Ct. at 2560, may serve to save an

otherwise untimely petition if “a litigant’s failure to meet a legally-mandated deadline unavoidably

arose from circumstances beyond that litigant’s control,” Hall v. Warden, Lebanon Corr. Inst., 662

F.3d 745, 749 (6th Cir. 2011) (internal quotation marks omitted), cert. denied, 133 S. Ct. 187 (2012).

To be eligible, Eberle must show that (1) “he has been pursuing his rights diligently” and (2) “some

extraordinary circumstance stood in his way” to foreclose timely filing. Holland, 130 S. Ct. at 2562

(internal quotation marks omitted).
Jeffrey Eberle v. Warden, No. 12-4213
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       Eberle says he couldn’t file his claims earlier because “he only learned of the evidence

proving his innocence” after Nordstrom’s investigation. But that was in December 2008. The issue

is Eberle’s quiescence afterwards—the nearly five months it took to submit his own affidavit, and

the two additional months to file the plea-withdrawal motion. Absent an explanation for these

delays, Eberle’s diligence is difficult to spot. Because Eberle’s equitable-tolling argument fails at

Holland’s first step, we move on without looking into the second.

       D. Actual innocence

       Notwithstanding that, Eberle insists that he can successfully pass through the actual-

innocence gateway. If that were so—and it is not—Eberle’s lack of diligence would not stand in the

way of our consideration of his otherwise untimely petition. In McQuiggin v. Perkins, the Supreme

Court recently held that a showing of actual innocence works to “overcome” AEDPA’s statute of

limitations, and not simply to excuse late filing. 133 S. Ct. 1924, 1930–31 (2013). When faced with

a “convincing” actual-innocence claim, McQuiggin makes clear, a court cannot consider a petition’s

untimeliness as “an absolute barrier to relief.” Id. at 1928. Although a petitioner who asserts a

convincing actual-innocence claim does not have to “prove diligence to cross a federal court’s

threshold,” timing remains “a factor relevant in evaluating the reliability of a petitioner’s proof of

innocence.” Id. at 1935 (“Unexplained delay in presenting new evidence bears on the determination

whether the petitioner has made the requisite showing.”).

       In addition to clarifying that there are no temporal limitations to presenting evidence in

support of an actual-innocence claim, McQuiggin also reiterated the standard needed to make one

out. Id. at 1931. The touchstone of the inquiry is whether a petitioner’s “new evidence shows ‘it
Jeffrey Eberle v. Warden, No. 12-4213
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is more likely than not that no reasonable juror would have convicted [him].’” Id. at 1933 (quoting

Schlup v. Delo, 513 U.S. 298, 329 (1995)). To assess that question, a court must survey “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 v. Bell, 547 U.S. 518,

538 (2006) (internal quotation marks omitted). With “all the evidence” thus in mind, the court’s

final task is “to assess the likely impact of the evidence on reasonable jurors”; it is not to work

through an “independent factual determination” to divine “what likely occurred.” Id. (internal

quotation marks omitted).

       Does Eberle’s new evidence, taken together with the old, establish “that it is more likely than

not that no reasonable juror would have found [him] guilty beyond a reasonable doubt”? Schlup, 513

U.S. at 327. We cannot say it does. The new evidence Eberle presents consists of three core facts.

The first is a statement Ryan Goodman made that Eberle mistakenly believes is exculpatory. The

second is Nordstrom’s report that Fugate revealed to him that she told the police that Evick

confessed to killing Fish. And the last is Nordstrom’s remark that Fish and Jeff Weldon had an

antagonistic relationship due to their involvement in drug trafficking.

       We begin with Goodman’s statement. Eberle claims that had he had known of it before he

pled guilty, he would not have taken the plea deal. Goodman, it turns out, planned to testify that

Eberle said only one thing to Goodman about Fish: “Motherfucker tried to play us so we got him.”

If anything, Goodman’s statement supports Eberle’s guilt. It blinks reality to suggest that Eberle’s

statement—“we got him”—makes it “more likely than not that no reasonable juror would have

convicted” Eberle. McQuiggin, 133 S. Ct. at 1933 (internal quotation marks omitted).
Jeffrey Eberle v. Warden, No. 12-4213
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       Fugate’s statement to Nordstrom gets a bit closer, but just barely. While Eberle alleges it

exonerates him, we disagree for three reasons (all of which apply with equal force to Nordstrom’s

supplemental affidavit). First, Fugate’s statement in Nordstrom’s affidavit is hearsay-within-hearsay

evidence. See Ohio R. Evid. 805. While that isn’t disqualifying in itself—a court, after all, must

consider “all the evidence . . . without regard to whether it would necessarily be admitted under rules

of admissibility,” House, 547 U.S. at 538 (internal quotation marks omitted)—a juror could

reasonably discount Fugate’s statement insofar as it is less reliable than direct testimony. See

Knickerbocker v. Wolfenbarger, 212 F. App’x 426, 433 (6th Cir. 2007). Second, Fugate’s statement,

even if reliable, stands against Eberle’s admission that he “purposely and with prior calculation”

caused Fish’s death. Eberle stipulated that he and Jason Evick took Fish to a secluded location

where Eberle assaulted Fish with a shovel. Third, Fugate’s statement at most supports the view that

Eberle was only complicit in Fish’s death. Even if that were so, Eberle could still be convicted as

the principal offender. See Ohio Rev. Code § 2923.03(F) (a complicit defendant “shall be prosecuted

and punished as if he were a principal offender”). Eberle notably does not argue that Fugate’s

statement undermines any element of the offense he pled guilty to, and that is fatal to his actual-

innocence claim.

       The final fact Eberle relies on to prove his claim is Nordstrom’s remark that Fish and Jeff

Weldon somehow clashed over their involvement in drug trafficking. Ignore for the moment that

the source of Nordstrom’s report is unknown and the statement is otherwise vague. (What

involvement did the parties have in drug trafficking? When did it occur? Why was the relationship

antagonistic?) The bigger problem is that this statement suggests no more than that another person
Jeffrey Eberle v. Warden, No. 12-4213
Page 16

quarreled with Fish and so may have had a motive to harm him. Finally, the first and second reasons

for rejecting Fugate’s statement as evidence of actual innocence apply to the Weldon story as well.

       To wrap it up, then, Eberle’s actual-innocence evidence, even if new, is not adequate to show

that no reasonable juror would have convicted him. See McQuiggin, 133 S. Ct. at 1936.

                                      III. CONCLUSION

       Because no statutory basis exists to save Eberle’s time-barred petition, and Eberle is unable

to make a credible claim of actual innocence or demonstrate his entitlement to equitable tolling, we

AFFIRM the district court’s judgment.
