Edward Avery, Sr. v. Lyneal Wainwright

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0196n.06
Case No. 20-3530
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
FILED
EDWARD B. AVERY, SR., May 12, 2022
)
Petitioner - Appellant, DEBORAH S. HUNT, Clerk
)
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
LYNEAL WAINWRIGHT, Warden, ) SOUTHERN DISTRICT OF OHIO
Respondent - Appellee. )
)
Before: GUY, MOORE, and GIBBONS, Circuit Judges.
GIBBONS, J., delivered the opinion of the court in which MOORE, J., joined. GUY, J.
(pp. 24–34), delivered a separate opinion concurring in the judgment.
JULIA SMITH GIBBONS, Circuit Judge. Edward B. Avery, Sr. appeals the district
court’s denial of his fourth habeas corpus petition as procedurally defaulted. The district court
issued a certificate of appealability limited to Ground 2 of Avery’s petition, which alleges his due
process rights were violated by the presence of an alternate juror during jury deliberations. Avery
filed a motion to expand the certificate of appealability to include Ground 1, which alleges that
Avery’s consecutive rape and kidnapping sentences violate double jeopardy. On appeal, Avery
argues that neither Ground 1 nor 2 is procedurally defaulted. Alternatively, he argues that any
procedural default of Ground 2 is excusable because he can demonstrate cause and prejudice due
to ineffective assistance of appellate counsel. The Warden argues the district court’s judgment
should be affirmed because Avery’s petition is time-barred and he is not entitled to equitable
tolling.
No. 20-3530, Avery v. Wainwright
We deny Avery’s motion to expand the certificate of appealability to include Ground 1,
and we affirm the district court’s denial of Avery’s claims as procedurally defaulted.
I
Avery was convicted of rape, robbery, aggravated burglary, and kidnapping in 1997. The
Ohio Court of Appeals summarized the facts:
The facts leading to appellant’s conviction[s] for the above crimes occurred
on March 14, 1997. That morning appellant returned to an apartment complex in
Marysville, Ohio, after a long night of drinking, to find himself locked out of the
apartment where he was staying. While waiting for the other occupants of the
apartment to return home, appellant sought refuge from the rain on an apartment
patio belonging to Vicky Johnson, another tenant in the complex. From her patio,
appellant watched Vicky Johnson and her boyfriend until they left the building.
While they were gone, appellant entered the apartment through an unlocked door.
Meanwhile, Johnson drove her boyfriend to work and returned home shortly
before 6:00 a.m. As Johnson entered her bedroom, she was attacked by appellant.
A short struggle ensued as appellant covered Johnson’s head with a shirt and threw
her down on the bed. Appellant proceeded to rape Johnson, using a blanket to
further blind her and protect his anonymity. At one point, Johnson did catch a
glimpse of appellant’s fingers and knew her attacker was black. After the rape,
appellant led Johnson to the bathroom, her head still covered, and told her to
shower. Although the door to the restroom did not lock, Johnson was able to brace
her body between the sink and the door to keep appellant from reentering the
bathroom. Appellant finally left Johnson’s apartment through the patio door,
picking up $2 from a coffee table before leaving.
Appellant was subsequently arrested and confessed to the events
surrounding the rape of Vicky Johnson on March 14, 1997. Appellant pled not
guilty to the charges against him, and his case proceeded to trial. Appellant was
subsequently found guilty by a jury of rape, aggravated burglary, robbery, and
kidnapping . . . .
State v. Avery, 709 N.E.2d 875, 878 (Ohio Ct. App. 1998). Avery was sentenced to an aggregate
term of thirty years of imprisonment and adjudicated a sexual predator. See id.Avery appealed, and the state appellate court affirmed the trial court’s judgment. Id. at
887. After failing to timely appeal to the Ohio Supreme Court, Avery filed a motion for a delayed
appeal, which the Ohio Supreme Court denied. State v. Avery, 743 N.E.2d 401 (Ohio 2001).
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No. 20-3530, Avery v. Wainwright
Avery filed an application for reopening of the appeal under Ohio Appellate Rule 26(B), which
the appellate court denied. He then filed a motion for reconsideration, which the appellate court
also denied. The Ohio Supreme Court dismissed the appeal on December 23, 1998.
In 2010, after further motion practice, the trial court conducted a de novo sentencing
hearing because, although it notified Avery of the terms of post-release control at his sentencing
hearing, it failed to include those terms and specify the method of conviction in its Journal Entry
of Sentencing. State v. Avery, No. 14-10-35, 2011 WL 3656470, at *1 (Ohio Ct. App. Aug. 22,
2011). Avery was resentenced to an aggregate sentence of thirty years of imprisonment, with
credit for time served, and correctly informed as to post-release control both orally and in writing.
Id. The method of conviction was also included in the resentencing entry. Id. Avery
unsuccessfully appealed the resentencing judgment. Id. at *4.
This appeal stems from Avery’s fourth federal habeas petition. His first petition was
dismissed without prejudice at his request on June 9, 2000. On January 13, 2003, Avery’s second
petition was dismissed as time-barred. His third petition was transferred to our court as second or
successive on September 13, 2013. On May 21, 2014, our court denied Avery’s motion to
authorize the district court to consider the second or successive habeas petition.
Undeterred, Avery again moved our court for an order authorizing the district court to
consider a second or successive habeas petition. This time, we explained that “a habeas petitioner,
after a full resentencing and the new judgment that goes with it, may challenge his undisturbed
conviction without triggering the ‘second or successive’ requirements.” DE 7-1, Order, Page ID
951 (quoting King v. Morgan, 807 F.3d 154, 156 (6th Cir. 2015)). Avery’s 2010 resentencing
resulted in a new judgment, so we concluded Avery did not need authorization to file a habeas
petition.
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No. 20-3530, Avery v. Wainwright
On April 12, 2018, Avery filed his fourth habeas petition in the Southern District of Ohio,
in which he pursued nine claims for relief.1 The Warden moved to dismiss Avery’s petition,
arguing it was time-barred. On referral, U.S. Magistrate Judge Kimberly Jolson held an
evidentiary hearing and recommended denying the Warden’s motion to dismiss. Although the
one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) had passed, Judge Jolson found that equitable tolling was warranted. After
considering objections from both parties, the district court adopted Judge Jolson’s Report and
Recommendation (“R. &. R.”).
After full briefing on the petition, Judge Jolson recommended dismissing Avery’s claims
as procedurally defaulted. Avery filed objections to the R. & R. The district court overruled
Avery’s objections, adopted the R. & R., and dismissed Avery’s claims as procedurally defaulted.
Avery now appeals, seeking a certificate of appealability for Ground 1, challenging the district
court’s dismissal of his claims as procedurally defaulted, and asking this court to award habeas
relief.
II
Whether the district court properly calculated the timeliness of a habeas corpus petition is
reviewed de novo. DiCenzi v. Rose, 452 F.3d 465, 467 (6th Cir. 2006). A district court’s
determination regarding a habeas petitioner’s procedural default is reviewed de novo. Hicks v.
Straub, 377 F.3d 538, 551 (6th Cir. 2004). The district court’s application of the “cause and
prejudice” test excusing procedural default is also reviewed de novo. Hargrave-Thomas v. Yukins,
374 F.3d 383, 387 (6th Cir. 2004).
1
Where ascertainable, we use as the filing dates of Avery’s petitions and motions the dates on
which he delivered them “to the prison authorities for forwarding to the court clerk.” Houston v.
Lack, 487 U.S. 266, 276 (1988).
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No. 20-3530, Avery v. Wainwright
III
First, we address the Warden’s arguments that Avery’s petition is time-barred and he is not
entitled to equitable tolling. Because Avery diligently pursued his rights and extraordinary
circumstances prevented the timely filing of his fourth habeas petition, we agree with the district
court’s conclusion that Avery was entitled to equitable tolling and that the instant habeas
application is timely.
A
A petition for a writ of habeas corpus must be filed within one year of the latest of four
dates, here, “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). That one-year
period is subject to equitable tolling, which allows a court to toll the statute of limitations where
the petitioner shows (1) he has pursued his rights diligently and (2) some extraordinary
circumstance prevented timely filing. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010)
(citing Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Hall v. Warden, Lebanon Corr.
Inst., 662 F.3d 745, 749–50 (6th Cir. 2011). “[E]quitable tolling is used sparingly by federal
courts. The party seeking equitable tolling bears the burden of proving he is entitled to it.”
Robertson, 624 F.3d at 784 (citation omitted).
The district court must exercise its equitable powers on a case-by-case basis, with an
emphasis on the need for flexibility and for avoiding mechanical rules. Holland, 560 U.S. at 649–
50 (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946)). This means “exercis[ing]
judgment in light of prior precedent, but with awareness of the fact that specific circumstances,
often hard to predict in advance, could warrant special treatment in an appropriate case.” Id. at
650. Where a district court’s ruling on equitable tolling is based on undisputed facts or an issue
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No. 20-3530, Avery v. Wainwright
of law, this court’s review is de novo; in all other cases, it is for an abuse of discretion. Robertson,
624 F.3d at 784. Despite Avery’s argument to the contrary, the facts here are undisputed, and so
we review the district court’s grant of equitable tolling de novo.
B
Avery was resentenced in 2010. This judgment became final on April 17, 2012, ninety
days after the Supreme Court of Ohio dismissed his resentencing appeal, when the time to file a
petition to the United States Supreme Court expired. A new, final judgment “restarts AEDPA’s
one-year window to challenge that judgment.” Crangle v. Kelly, 838 F.3d 673, 678 (6th Cir. 2016).
On January 23, 2013, Avery filed his third habeas petition, which the district court
transferred to our court as second or successive.2 Before a panel of our court, as he had before the
district court, Avery argued that his 2010 resentencing resulted in a “new judgment” and that under
Magwood v. Patterson he was allowed to file a new habeas petition challenging the underlying
conviction. 561 U.S. 320, 341–42 (2010) (explaining that where there is a “‘new judgment
intervening between two habeas petitions,’ an application challenging the resulting new judgment
is not ‘second or successive’ at all” (citation omitted)).
On May 21, 2014, in an unpublished order, the panel rejected Avery’s argument and
concluded Magwood did not allow Avery to raise challenges to his underlying conviction, only his
newly imposed sentence. At this point, Avery “had no further avenue for relief, as he could not
petition for rehearing or for a writ of certiorari on this issue.”3 CA6 R. 22, Reply Br., at 4.
2
This is significant because under the gate-keeping requirements for second-or-successive habeas
petitions, a proposed claim that was previously presented in a prior habeas petition must be
dismissed. 28 U.S.C. § 2244(b)(1).
3
The Warden claims Avery failed to file a motion under Fed. R. Civ. P. R. 60(b) for relief from
the district court’s 2013 decision or seek rehearing from the Sixth Circuit’s 2014 decision. Neither
was available to Avery. First, the district court transferred Avery’s petition to this court as second
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No. 20-3530, Avery v. Wainwright
Following our court’s rejection of his Magwood argument, Avery discontinued his research of this
issue. But, in 2015, our court changed course, adopting the very argument that Avery previously
made and that we previously rejected.
We held that “a habeas petitioner, after a full resentencing and the new judgment that goes
with it, may challenge his undisturbed conviction without triggering the ‘second or successive’
requirements.” King v. Morgan, 807 F.3d 154, 156 (6th Cir. 2015). Then, in 2016, we applied
King to a partial resentencing, holding that “a partial resentencing that results in the imposition of
post-release control is the type of change that creates a new judgment for purposes of the second
or successive bar” because “this type of change alters the sentence ‘pursuant to’ which the
petitioner is ‘in custody.’” In re Stansell, 828 F.3d 412, 419 (6th Cir. 2016). Avery, King, and
Stansell had the same legally relevant facts and made the same legal arguments before our court,
but King and Stansell were granted relief and Avery was not.
After learning of these decisions from a fellow inmate, Avery moved our court for leave to
file a second or successive habeas petition on July 17, 2017. On February 21, 2018, we denied the
motion as unnecessary, explaining that “Avery’s 2010 resentencing resulted in a ‘new judgment,’”
and he “faces no procedural impediment to filing a new § 2254 action in the district court and does
not need the authorization of this court to file such an action.” DE 1-1, 2018 Order, Page ID 24.
We did not address the statute of limitations or equitable tolling.
or successive, so the district court no longer had jurisdiction to hear a Rule 60(b) motion once the
case was docketed in this court. Second, Sixth Circuit precedent makes clear that “once a panel
of this court grants or denies an individual permission to file a second or successive petition in the
district court, § 2244(b)(3)(E) prohibits any party from seeking further review of the panel’s
decision, either from the original panel or from the en banc court.” In re King, 190 F.3d 479, 480
(6th Cir. 1999) (en banc); see also 28 U.S.C. § 2244(b)(3)(E).
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No. 20-3530, Avery v. Wainwright
C
Avery’s fourth habeas petition is entitled to equitable tolling because he diligently pursued
his rights and extraordinary circumstances prevented him from filing his fourth habeas petition
within the statute of limitations. Avery learned of the decisions in King and Stansell in May 20174
when our court applied them to a case involving one of Avery’s fellow inmates, In re Smith, No.
16-4699, Dkt. 9-2 (6th Cir. May 11, 2017). On July 17, 2017, Avery filed a motion in this court
for leave to file a second or successive habeas petition. On February 21, 2018, this court denied
Avery’s motion as unnecessary in light of King and Stansell. Then, on April 12, 2018, Avery filed
his fourth habeas petition. At each step, Avery acted promptly within the constraints of his
confinement.
In Jones v. United States, we held that a petitioner demonstrated diligence when he sought
relief within two months of learning of a court decision affecting his case, despite the case itself
having been decided a year earlier. 689 F.3d 621 (6th Cir. 2012). We determined Jones was
entitled to equitable tolling because he satisfied the “extraordinary circumstances” requirement:
Jones explained in his filings before the district court that he did not learn
of the Supreme Court’s holding in Begay [v. United States, 553 U.S. 137 (2008)]
until May 12, 2009, due in large part to a series of prison transfers immediately
before the case was announced that separated him from his legal materials and made
it difficult for him to acquire access to new legal information from other
prisoners. . . . Jones is partially illiterate and must rely on other prisoners for
knowledge of changes in the legal landscape. He also has a variety of medical
conditions, including seizures, that require frequent medication and impeded his
ability to adequately obtain legal information. Jones averred that throughout this
time he was constantly questioning others for legal advice on how to challenge his
convictions, but did not receive information about Begay until other inmates
4
The Warden does not contest that Avery discovered this information in May 2017; rather, she
takes issue with Avery’s lack of explanation for “why he could not have consulted with other
inmates regarding his case and how to proceed prior to 2017.” CA6 R. 21, Appellee Br., at 27.
But, as this court has acknowledged, inmates often learn of legal developments through the “prison
grapevine, which is hardly a model of speed or accuracy.” Jones v. United States, 689 F.3d 621,
627 n.4 (6th Cir. 2012).
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No. 20-3530, Avery v. Wainwright
informed him about it in May 2009.4 Within two months of learning of his new
right, he was able to obtain sufficient assistance to submit a motion to vacate under
§ 2255.
4. Even though knowledge of filing deadlines is no longer part of
our inquiry, we note the inherent differences between when the
clock starts upon the conclusion of direct appeal and when the clock
starts upon the issuance of a new Supreme Court case. Although we
expect inmates to have knowledge of both, it would strain credulity
to suggest that a defendant has the same level of access to
information about the issuance of new Supreme Court cases as he
does about his direct appeal. Inmates without attorneys typically
become apprised of Supreme Court developments only through the
prison grapevine, which is hardly a model of speed or accuracy.
Although any one of the above factors may not constitute “extraordinary
circumstances” alone, the combination of all of these factors justifies applying
equitable tolling to Jones’s claims. Furthermore, Jones has met his burden of
demonstrating that he was not sleeping on his rights and was diligent in pursuing
new claims and this claim in particular once he became aware of its existence. The
argument for equitable relief in this case is made all the more compelling by the
United States’s position that Jones should receive the relief he requests.
Id. at 627–28 (citations omitted).
We agree with Magistrate Judge Kimberly Jolson’s analysis that Jones offers two key
lessons here: (1) “when evaluating a pro se prisoner’s diligence in pursuing his rights, courts should
consider the realities of prisoners’ conditions of confinement,” and (2) “in certain circumstances,
a pro se prisoner should not be faulted for failing to stay apprised of new legal developments
through his or her own research.” DE 21, Order and R. & R., Page ID 1559. A petitioner’s
ignorance of the law and pro se status are, of course, not excuses for a lack of diligence. But the
lessons we can learn from Jones comport with Supreme Court’s guidance that inmates are required
to exercise “reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653(2010) (cleaned up). Although a variety of factors weighed into our decision in Jones that are not
present in Avery’s case, Jones provides precedent for granting equitable tolling based in part on
the petitioner seeking relief after his discovery of new law despite some time having passed.
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No. 20-3530, Avery v. Wainwright
Avery learned of King and Stansell from Smith one year and nine months after Stansell
was decided. But it is well-established that prisoners have limited resources and often learn of
new cases from fellow inmates. Moreover, Avery is in the unique position that a panel of our court
specifically rejected Avery’s argument on the exact legal issue addressed in Stansell, suggesting
continuous legal research on Avery’s part would be futile. Even the most experienced of counsel
would likely find it unwise to continue litigating an issue he previously, personally lost in this
court. Instead, Avery spent his limited time researching new avenues for relief. This is not a lack
of diligence. Avery timely filed his 2013 petition. Although we initially concluded in our 2014
order that Avery’s petition was second or successive, Avery, proceeding pro se at the time, made
the same argument we later adopted in King and Stansell. Once Avery learned from his fellow
inmate of potential new grounds to challenge the 2014 order, he quickly filed a motion for leave
to file a second or successive petition. Finding such a petition unnecessary for the reasons
discussed above, the Sixth Circuit directed Avery to file a new habeas petition in the district court,
which he promptly did. Under the unique facts of this case, Avery demonstrated reasonable
diligence in pursuing his rights.
D
To satisfy the extraordinary circumstances element, a petitioner must demonstrate an
external obstacle prevented the timely filing of a habeas petition. Holland, 560 U.S. at 649. This
is a fact-intensive inquiry, and we find that the unique facts of this case satisfy the extraordinary
circumstances requirement because Avery’s delay in filing the instant 2018 petition was due to
external factors beyond his control.
After his 2010 resentencing judgment became final, Avery timely filed the 2013 petition,
which was transferred to this court as second or successive. Then, a panel of our court directly
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No. 20-3530, Avery v. Wainwright
rejected Avery’s arguments, denying him any further avenue for pursuing relief. This 2014 order
was the sole impediment to Avery’s proceeding with his timely 2013 petition. When Avery
learned of new grounds to challenge that order, he promptly filed a motion in this court for leave
to file a second or successive habeas petition, which we deemed unnecessary. Within two months
of that ruling, Avery filed the instant petition. This series of events leads us to the same question
Magistrate Judge Jolson asked: “What more could [Avery] have done to ensure that his current
petition was filed in as timely a manner as possible?” DE 21, Order and R. & R., Page ID 1563.
“[N]ot every interpretation of the federal statutes setting forth the requirements for habeas
provides cause for reopening cases long since final.” Gonzalez v. Crosby, 545 U.S. 524, 536
(2005). However, this court’s 2018 order reopened Avery’s ability to challenge his 2010
resentencing by finding that he faced no procedural bar to filing a new habeas petition in district
court. Avery is not merely claiming that he did not receive notice of a legal rule and therefore he
is entitled to equitable tolling. A panel of this court already concluded that, “in light of” King and
Stansell, Avery “faces no procedural impediment to filing a new § 2254 action in the district court
and does not need the authorization of this court to file such an action.” DE 1-1, 2018 Order, Page
ID 24. Avery is not, therefore, solely relying on a change in the law to support his argument in
favor of equitable tolling. He is relying on a change in the law from which a panel of this court
has already found he should benefit.
Avery’s factual and procedural circumstances are unique. Equitable tolling is a fairness
doctrine, under which neither can petitioner game the system nor will the court fault them for
circumstances outside their control. Avery is not gaming the system. He lost in our court and
understandably believed that was the end of the matter. As soon as he discovered the matter was
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reopened, he moved for relief in our court and was told that he could file his habeas petition. Under
these specific and uncommon circumstances, equitable tolling is warranted.
IV
The district court concluded that Ground 1 and Ground 2 were procedurally defaulted. The
district court granted a certificate of appealability on Ground 2, but Avery also seeks a certificate
of appealability as to Ground 1. To obtain a certificate of appealability, a petitioner must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the district
court dismisses a habeas claim on procedural grounds, a certificate of appealability should be
issued if the petitioner “shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). All reasonable jurists would find that Ground 1 is procedurally
defaulted, so we deny Avery’s motion to expand the certificate of appealability to include his
double jeopardy claim. We likewise find Ground 2 to be procedurally defaulted. We analyze the
procedural default of Grounds 1 and 2 together.
A
Procedural default occurs when a habeas petitioner convicted of a crime in state court fails
to present a claim to the highest court of the state prior to presenting the claim in federal court.
A petitioner must present “‘the same claim under the same theory’ to the state courts before raising
it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting
Pillette v. Foltz, 824 F.3d 494, 497 (6th Cir. 1987)); see also Wainwright v. Sykes, 433 U.S. 72, 87
(1977). A claim is procedurally defaulted if three conditions are met: (1) “there is a state
procedural rule with which the petitioner failed to comply;” (2) “the state courts actually enforced
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the state procedural sanction;” and (3) the state procedural rule is “an adequate and independent
state procedural ground upon which the state could rely to foreclose review of a federal
constitutional claim.” Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). If all these conditions
are met, a federal court may not review the claim unless the petitioner demonstrates “that there
was cause for his failure to follow the rule and that actual prejudice resulted from the alleged
constitutional error.” Id.For Ground 1 and Ground 2, the first three conditions for finding procedural default are
met: First, Avery failed to comply with Ohio’s res judicata rule, which requires all claims to be
raised on direct appeal, by failing to raise Ground 1 and Ground 2 on direct appeal from his 1997
conviction. Avery v. Warden, Marion Corr. Inst., No. 2:18-cv-387, 2020 WL 2126523, at *2 (S.D.
Ohio May 5, 2020). Avery raised Ground 1 and Ground 2 for the first time on direct appeal from
his 2010 resentencing. In 2011, the Ohio Court of Appeals found these claims were barred by the
doctrine of res judicata because they did not pertain to the imposition of post-release control and
could have been raised on direct appeal from Avery’s 1997 conviction. See State v. Avery, No.
14-10-35, 2011 WL 3656470, at *3–4 (Ohio Ct. App. 2011). Second, the Ohio Court of Appeals
enforced its state procedural sanction by barring Avery from raising Ground 1 and Ground 2 on
appeal from his 2010 resentencing. Id. Third, when properly applied, Ohio’s res judicata rule is
an adequate and independent state procedural ground to foreclose review of a constitutional claim.
Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000).
B
Avery argues the Ohio appellate court misapplied its own rule of res judicata. Ohio’s rule
of res judicata requires a “final judgment,” which bars the defendant from later raising any claims
that could have been raised on direct appeal from “that judgment.” State v. Perry, 226 N.E.2d 104,
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No. 20-3530, Avery v. Wainwright
108 (Ohio 1967).5 Avery claims his 2010 resentencing rendered his 1997 conviction void;
therefore, there was no final judgment that could have a preclusive effect and Ohio misapplied its
own rule of res judicata by finding otherwise.
In support of his argument, Avery points to our court’s characterization of his 2010
resentencing as a “new judgment” not requiring a second or successive habeas petition. But
whether Avery was entitled to file a new federal habeas petition is a consideration entirely separate
from whether Ohio correctly applied its own state law of res judicata. Avery is correct that we
have previously declined to find issues procedurally defaulted when an Ohio court’s application
of res judicata was “misplaced.” Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001). That is
because of the long-established rule dictating that the adequacy of a state procedural bar is a federal
question. Lee v. Kemna, 534 U.S. 362, 375 (2002). Our court, however, has only applied Greer’s
holding to cases involving a state court’s failure to consider evidence outside of the record or other
similar factual errors with the state court’s decision.6 Here, Avery is not claiming that the state
court misapprehended the facts; his claim is that the state court misinterpreted state law governing
the application of res judicata by failing to consider his 1997 conviction entirely void. See State
v. Fischer, 942 N.E.2d 332, 336 (Ohio 2010) (characterizing whether a judgment is void or
5
In Ohio, “[u]nder the doctrine of res judicata, a final judgment of conviction bars the convicted
defendant from raising and litigating in any proceeding, except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been raised by the
defendant at the trial which resulted in that judgment of conviction or on an appeal from that
judgment.” Perry, 226 N.E.2d at 108.
6
See Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005) (ineffective assistance of counsel claim
not procedurally defaulted because such claims are not barred by res judicata under Ohio law when
evidence outside the direct appeal record is presented); Post v. Bradshaw, 621 F.3d 406, 423 (6th
Cir. 2010) (Ohio state court misapplied its own res judicata rules when petitioner could not have
brought post-conviction proceedings as to his claim because the supporting evidence was then-
undiscovered); see also Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001); White v. Mitchell,
431 F.3d 517, 527 (6th Cir. 2005); Durr v. Mitchell, 487 F.3d 423, 434 (6th Cir. 2007).
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voidable under Ohio law), overruled on other grounds by State v. Harper, 159 N.E.2d 248 (Ohio
2020).
The state appellate court considered and rejected this argument. Avery, 2011 WL 3656470,
at *2–4. Ohio law requires a judgment of conviction to “set forth the plea, the verdict, or findings
upon which each conviction is based, and the sentence.” United States v. Adkins, 729 F.3d 559,
567 (6th Cir. 2013) (quoting Ohio Crim. R. 32(C)).7 Although Avery’s sentence did not
technically meet these requirements, the state appellate court held that this does not mean his 1997
sentence was a nullity. Avery, 2011 WL 3656470, at *2–4. Instead, Ohio law provides that a
technical failure to comply with Rule 32(C) by failing to include the manner of conviction does
not violate a statutorily mandated term. See id.The state appellate court extended this same reasoning to the other clerical mistakes in
Avery’s judgment. Id. While the remedy for such mistakes is “resentencing,” Ohio courts have
not suggested that this encompasses anything more than “issuing a corrected sentencing entry that
complies with Crim. R. 32(C).” Id. (quoting State ex rel. DeWine v. Burge, 943 N.E.2d 535, 540
(Ohio 2011)). Ultimately, the state appellate court held that
[a]ll of the parties were aware of the fact that Avery was found guilty after a jury
trial and the record reflected this fact in numerous places. The trial court’s
correction of the sentencing entry to reflect what had actually occurred was merely
a nunc pro tunc correction that did not render the previous judgment a nullity.
Avery, having already had the benefit of a direct appeal, cannot raise any and all
claims of error in successive appeals.
Id. at *4.
The state appellate court determined that Avery’s 1997 conviction was not a nullity and,
therefore, had preclusive effect. Because our court treats state court interpretations of state law
7
Ohio Criminal Rule 32(C) has since been amended.
15
No. 20-3530, Avery v. Wainwright
with deference, we will not disturb the Ohio state court’s application of its own res judicata law.
See Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984) (“[S]tate courts are the final authority
on state law.”). Therefore, we find that jurists of reason would not debate whether the district
court correctly rejected Ground 1 as procedurally defaulted. Likewise, we find Ground 2 to be
procedurally defaulted.
V
Avery argues he can establish cause and prejudice to excuse any procedural default of
Ground 2 because of ineffective assistance of appellate counsel during his initial direct appeal. To
do so, Avery must show that his appellate counsel’s failure to raise the alternate-juror argument
on appeal “rose to the level of a constitutional violation” under Strickland v. Washington, 466 U.S.
668 (1984). McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). Strickland sets forth a two-
prong analysis for assessing ineffective assistance of counsel claims: (1) “the defendant must show
that counsel’s performance was deficient” and (2) “the defendant must show that the deficient
performance prejudiced the defense.” 466 U.S. at 687. We affirm the district court’s finding that
Avery has not established deficient performance or prejudice excusing procedural default.
A
First, to find that counsel’s ineffectiveness constitutes cause excusing procedural default,
“that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must
be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668
(6th Cir. 2005). Avery filed a Rule 26(B) application to reopen his initial direct appeal, in which
he argued that his appellate counsel was ineffective for failing to raise the alternate-juror issue.
The state appellate court denied Avery’s Rule 26(B) application as untimely, for exceeding the
page limit, and for failure to state an issue of ineffective assistance of appellate counsel. Avery
16
No. 20-3530, Avery v. Wainwright
then filed a motion to reconsider, which the state appellate court again denied. But in its denial,
the appellate court noted that Avery’s application was denied for numerous reasons, including on
the merits. It failed, however, to specify how the application was denied on the merits.
For procedural default to bar consideration of a claim on habeas review, the last state court
rendering a judgment must clearly and expressly state that its judgment rests on a state procedural
bar. Harris v. Reed, 489 U.S. 255, 262–65 (1989). In Harris, the Supreme Court indicated in a
footnote that if the last state court ruling based its conclusion on the merits and, alternatively, on a
state procedural ground, then the procedural ground ruling prevails. Id. at 264 n.10. Our court
adopted this reasoning in Clifford v. Chandler, in which we held that a discussion of the merits
will not supersede an independent procedural bar to habeas relief. 333 F.3d 724, 728–29 (6th Cir.
2003), overruled in part on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003).
In denying Avery’s motion to reconsider, the state appellate court held that the timeliness
of the 26(B) application is “irrelevant to the ultimate conclusion that said application did not give
rise to a genuine issue as to whether appellant was deprived of the effective assistance of counsel
on appeal.” DE 5, Ex. 19, Page ID 340. But the Warden argues that the state appellate court
“never retracted its determination that Avery’s 26(B) application exceeded the page limits.” CA6
R. 21, Appellee Br., at 40. Although a discussion of the merits will not automatically supersede a
procedural bar, because both the initial denial and the denial of reconsideration addressed the
merits, the last state court judgment was not one that clearly and expressly rested on a procedural
bar. Therefore, we find that Avery’s ineffective assistance of appellate counsel claim is not itself
procedurally defaulted.
17
No. 20-3530, Avery v. Wainwright
B
The next issue is whether Avery has demonstrated that his appellate counsel was deficient.
Under this first prong of Strickland, we assess whether “counsel’s representation fell below an
objective standard of reasonableness.” 466 U.S. at 68–88. The Warden argues that appellate
counsel’s performance was not deficient because the alternate juror claim is meritless, and it is not
deficient performance to fail to raise a meritless claim.
Avery argues that his appellate counsel was ineffective for failing to raise the alternate
juror claim on direct appeal. At Avery’s trial, the trial court released the alternate juror before the
jury began deliberations. The trial judge told the alternate juror:
I’m going to release you, but I want you to know that you’re not allowed to discuss
this case with anyone, or indicate to anyone how you would have voted, or what
your ideas are on the matter, until this jury has come back and reported their
findings. . . . You’re free to go or stay as you please . . . .
DE 45, Trial Tr., Vol. V, Page ID 2325.
Unbeknownst to the trial court and the parties, the alternate juror remained and was present
in the jury room during deliberations. After deliberating for two hours, the jury submitted a
question and returned to the courtroom. At this point, the trial court discovered the alternate juror’s
presence and Avery moved for a mistrial. The trial court questioned both the alternate juror and
the jury foreperson, who both stated that the alternate juror did not participate in the jury
deliberations. The jury foreperson further stated that the alternate juror was seated away from the
table of jurors and at the other end of the room during deliberations. Based on this information,
the trial court overruled Avery’s motion for a mistrial, dismissed the juror again, and instructed
the jury to begin their deliberations anew. The jury deliberated for an additional hour before
delivering its verdict.
18
No. 20-3530, Avery v. Wainwright
The Supreme Court has held that the mere presence of alternate jurors in jury deliberations
does not affect a defendant’s substantial rights. See United States v. Olano, 507 U.S. 725, 741
(1993). But “the presence of alternate jurors during jury deliberations might prejudice a defendant
in two different ways: either because the alternates actually participated in the deliberations,
verbally or through ‘body language’; or because the alternates’ presence exerted a ‘chilling’ effect
on the jurors.” Id. at 739 (citations omitted). The Ohio Supreme Court has held that “reversible
error occurs where, over objection, an alternate juror participates in jury deliberations resulting in
an outcome adverse to a defendant and either (1) the state has not shown the error to be harmless,
or (2) the trial court has not cured the error.” State v. Gross, 776 N.E.2d 1061, 1099 (Ohio 2002).
Avery argues that because the trial court failed to question all the jurors and the record does
not indicate whether the alternate nonverbally participated or exerted a chilling effect, then the
state failed to show the error was harmless. But the state is not required to show harmless error
when the trial court cures the error. See Gross, 776 N.E.2d at 1099. The record reflects that the
trial court cured the error by dismissing the juror again and instructing the jury to begin
“deliberations all over again, just as though you just started.” DE 45, Trial Tr. Vol. V, Page ID
2335. The record further reflects that the jury likely did so by deliberating for approximately an
additional hour. By comparison, in Gross, the Ohio Supreme Court found error because of the
presence of alternates in jury deliberations where there was “specific evidence of active disruption
of the deliberative process that pose[d] a significant risk of affecting jury functions . . . [and] the
trial court accepted the jury’s verdict regarding the death sentence without making any attempt to
cure the apparent error.” 776 N.E.2d at 1099 (describing participation by the alternate jurors and
their disruptive behavior, like throwing objects in the jury room). As the trial court cured the error
19
No. 20-3530, Avery v. Wainwright
of the presence of an alternate in jury deliberations, Avery’s claim of error on appeal likely had
limited merit.
It is notable, however, that the trial court judge made a problematic comment to the jury
after denying the motion for a mistrial prior to releasing the jury to redeliberate. He stated:
Before I answer your question—and I apologize, because obviously, I didn’t
make it clear what had to happen, and I want you to know, you know, I’m just a
country boy like the rest of you, or country girls, but at any rate, I serve on the Ohio
Judicial Conference Civil Law and Procedure Committee, and we just got done
discussing a pending bill in the Legislature right now that we have heartily
endorsed, and kind of asked for, and it is to allow the alternate to do exactly as you
did, to go back, not to participate, but be able to listen to what is being said, so that
if they get to arguing, and one has a heart attack, and have to carry him out, and
you have to replace them, that we don’t have to send the Sheriff out after you, then
start deliberations all over again, you not knowing what went on, and what the
thoughts were of the other persons.
Unfortunately, that has not passed yet. They’re still fooling around with
school bills, and all that business, and so, and they say that it has every chance of
passing. There’s not much opposition to it. But there are a lot of good things to it,
and just about no bad things about it. So I say that to you.
DE 45, Tr., Page ID 2334–35. Avery argues that “the trial court may have compounded any
prejudice by sharing with the jury its personal views of the merits of the Ohio alternate-juror rule.”
CA6 R. 18, Appellant Br., at 51.8 But the trial judge acknowledged that this bill had not passed
and was not the rule. More importantly, the judge’s comment has no bearing on the fact that the
judge corrected and cured the error by excusing the alternate and directing the jurors to start
deliberations anew, which he did before the jury redeliberated and delivered its verdict.
8
Avery suggests that the trial court may have denied Avery’s mistrial motion due to his personal
views, but this speculation is unsupported by the record beyond the trial judge’s general remarks
about the rule.
20
No. 20-3530, Avery v. Wainwright
“Counsel’s performance is strongly presumed to be effective,” and it is not deficient
performance to decline to raise issues that lack merit on appeal. Scott v. Mitchell, 209 F.3d 854,
880 (6th Cir. 2000); see Jones v. Barnes, 463 U.S. 745, 753–54 (1983). Given the record and Ohio
case law, we cannot conclude that Avery’s appellate counsel’s performance was constitutionally
deficient. See Strickland, 466 U.S. at 687; Goff v. Bagley, 601 F.3d 445, 469 (6th Cir. 2010).
C
Even if appellate counsel’s performance was constitutionally deficient, Avery cannot
establish prejudice. To establish prejudice, Avery relies on State v. Miley and State v. Locklear to
argue that but for appellate counsel’s failure to raise the alternate-juror issue he would have
prevailed on appeal. In State v. Miley, the Ohio Court of Appeals held that a failure “to discharge
the alternate juror at the time the jury retired for deliberations” violates “the express mandate of
Crim. R. 24(F).” 603 N.E.2d 1070, 1072 (Ohio Ct. App. 1991). Similarly, in State v. Locklear,
the Ohio Court of Appeals concluded that when a defendant properly objects to a Rule 24 violation,
the “only” remedy is to declare a mistrial. 401 N.E.2d 457, 458–59 (Ohio Ct. App. 1978). But
these cases are distinguishable because both involve the substitution of a juror during deliberations,
which was not the case at Avery’s trial. In the cases cited by Avery, the jurors were impermissibly
substituted and impermissibly participated, which is distinguishable from an impermissibly
present, but silent, alternate juror.
Under Ohio law, the trial court may cure the error of an alternate juror’s presence in
deliberations. See Gross, 776 N.E.2d at 1099. This is exactly what occurred in Avery’s case. The
trial court ensured that the alternate did not participate in deliberations (confirmed by the alternate
and the foreperson), dismissed the alternate, and then directed the jury to start deliberations anew.
21
No. 20-3530, Avery v. Wainwright
It is not clear what more the trial court could have done to cure the error. Therefore, Avery has
not shown he would have prevailed on appeal with his alternate-juror claim.
The parties disagree about whether a showing of actual prejudice, beyond the prejudice
required to prove Strickland prejudice, is required to excuse procedural default. Avery points to
Chase v. MaCauley, in which this court noted that “ineffective assistance of appellate counsel . . .
is a well-recognized basis for showing cause and prejudice” sufficient to excuse procedural default.
971 F.3d 582, 592 (6th Cir. 2020). Similarly, in Joseph v. Coyle, we explained that “establishing
Strickland prejudice likewise establishes prejudice for the purposes of cause and prejudice.”
469 F.3d 441, 462–63 (6th Cir. 2006).
The Warden relies on Ambrose v. Booker, 684 F.3d 638 (6th Cir. 2012), and Jones v. Bell,
801 F.3d 556 (6th Cir. 2015), to support her argument that a separate showing of prejudice is
necessary. But, as Avery correctly points out, Ambrose did not involve a Strickland claim.
Therefore, we had no choice but to conduct a separate inquiry into prejudice. Avery further
correctly argues that the court in Jones then misread dicta from Ambrose in reaching its conclusion
that procedural default requires a showing of prejudice beyond that required by Strickland.
A separate finding of actual prejudice beyond Strickland prejudice is not required. See
Joseph, 469 F.3d at 462–63; Hall v. Vasbinder, 563 F.3d 222, 237 (6th Cir. 2009); Ege v. Yukins,
485 F.3d 364, 379 (6th Cir. 2007). We affirm, however, the district court’s finding that Avery has
not demonstrated cause and prejudice from ineffective assistance of appellate counsel excusing
Ground 2’s procedural default.
22
No. 20-3530, Avery v. Wainwright
VI
We affirm the district court’s holding that Avery is entitled to equitable tolling. We deny
Avery’s motion to expand the certificate of appealability to include Ground 1 of his federal habeas
corpus petition. We affirm the district court’s holding that Ground 2 is procedurally defaulted and
that Avery cannot demonstrate cause and prejudice to excuse Ground 2’s procedural default.
23
No. 20-3530, Avery v. Wainwright
RALPH B. GUY, JR., Circuit Judge, concurring in the judgment. If Avery’s habeas
petition were timely, I would agree that his claims are procedurally defaulted. (Maj. Op. Parts IV
and V). But I would not reach that question because Avery is not entitled to equitable tolling.
(But see Maj. Op. Part III). This case begins and ends with the one-year statute of limitations
under 28 U.S.C. § 2244(d)(1). All agree that Avery filed the instant habeas petition just shy of six
years after the limitations period began to run on April 17, 2012—and over one year and nine
months after the nonretroactive legal development announced in In re Stansell, 828 F.3d 412 (6th
Cir. 2016), which Avery invoked in order to file his instant petition. The only reason Avery offers
for permitting this delay is his contention that he should benefit from Stansell’s nonretroactive
change in the law and that he did not learn about Stansell until he was personally informed by a
fellow inmate. This has never been sufficient to constitute the “extraordinary circumstances”
required to warrant equitable tolling under well-established precedent and the undisputed facts.
Because the warden is correct that the instant petition is time-barred and Avery is not entitled to
equitable tolling, I would leave it at that and affirm the district court’s judgment.
I
The timeline here is telling. In 1997, Avery was convicted and sentenced to thirty years in
prison for rape, aggravated burglary, robbery, and kidnapping. State v. Avery, 709 N.E.2d 875,
878 (Ohio Ct. App. 1998) (affirming the judgment). The Ohio Supreme Court declined to allow
an appeal. State v. Avery, 703 N.E.2d 327 (Ohio 1998).
On June 9, 2000, Avery’s first federal habeas corpus petition was dismissed without
prejudice at Avery’s request in order to allow him to exhaust state court remedies. R. 23, Avery v.
Brigano, No. 99-cv-459 (S.D. Ohio June 9, 2000). On January 13, 2003, Avery’s second petition
was dismissed as time-barred. (R. 5-2, PgID 864).
24
No. 20-3530, Avery v. Wainwright
In 2010, the Ohio trial court granted Avery’s motion for resentencing because, when Avery
was sentenced in 1997, the trial court did not properly advise Avery of the five-year mandatory
term of post-release control. (R. 5-1, PgID 572). That is, the court told Avery at sentencing that
he would be subject to “up to five years of mandatory post-release control” and the sentencing
entry noted that Avery was subject to post-release control under Ohio Rev. Code § 2967.28, but
the court did not specifically note the applicable five-year mandatory term of post-release control
under § 2967.28(B)(1). (R. 10-3, PgID 1176-77; see R. 5-1, PgID 567). The trial court conducted
a de novo sentencing hearing and again imposed a thirty-year sentence. State v. Avery, No. 14-10-
35, 2011 WL 3656470, at *1 (Ohio Ct. App. Aug. 22, 2011). Avery appealed, challenging his
conviction; the court of appeals affirmed, id.; and on January 18, 2012, the Ohio Supreme Court
declined to allow an appeal. State v. Avery, 959 N.E.2d 1056 (Ohio 2012).
On January 23, 2013, Avery filed his third federal habeas petition, and the petition was
transferred to this court on September 13 to decide whether Avery may file a successive habeas
petition under 28 U.S.C. § 2244(b). (R. 5-2, PgID 865-70, 884-85). Avery argued that his 2010
resentencing resulted in a new judgment that restarted the petition count under Magwood v.
Patterson, 561 U.S. 320 (2010), which held that where “there is a new judgment intervening
between the two habeas petitions,” as a result of “a full resentencing,” a habeas petition
“challenging the resulting new judgment is not second or successive at all.” 561 U.S. at 331, 339-
42 (cleaned up).
On May 21, 2014, this court concluded that Avery’s habeas petition was successive and
denied him authorization to file it. In re Avery, No. 13-4098, 2014 U.S. App. LEXIS 25220, at
*5-7 (6th Cir. May 21, 2014). In rejecting Avery’s argument, this court reasoned that:
25
No. 20-3530, Avery v. Wainwright
The Supreme Court noted, without overruling or casting doubt upon, this court’s
prior ruling “that a petitioner who succeeds on a first habeas application and is
resentenced may challenge only the ‘portion of a judgment that arose as a result of
a previous successful action.’” [Magwood, 561 U.S. at 342] n.16 (quoting Lang v.
United States, 474 F.3d 348, 351-52 (6th Cir. 2007)).
Id. at *5-6.
The law later changed in this jurisdiction. In 2015, this court held that “a habeas petitioner,
after a full resentencing and the new judgment that goes with it, may challenge his undisturbed
conviction without triggering the ‘second or successive’ requirements.” King v. Morgan, 807 F.3d
154, 156 (6th Cir. 2015). Then, on July 1, 2016, this court held that “a partial resentencing that
results in the imposition of post-release control is the type of change that creates a new judgment
for purposes of the second or successive bar.” In re Stansell, 828 F.3d 412, 416-17, 419 (6th Cir.
2016).
On July 17, 2017, Avery moved this court for authorization to file his fourth habeas
petition. (CA6 No. 17-3769, R. 1 at 1). He cited as a “new rule of constitutional law” Magwood
and In re Smith, No. 16-4699 (6th Cir. May 11, 2017), and asserted that he “only recently became
aware of Magwood applying” to his situation because Smith is a fellow inmate. (Id. at 5-6). This
court concluded: “Avery’s 2010 resentencing resulted in a ‘new judgment,’ and his motion for an
order authorizing the district court to consider a second or successive motion to vacate is therefore
unnecessary. Avery faces no procedural impediment to filing a new § 2254 action in the district
court and does not need the authorization of this court to file such an action.” In re Avery, No. 17-
3769, 2018 U.S. App. LEXIS 4228, at *4-5 (6th Cir. Feb. 21, 2018). But this court “did not address
the statute of limitations or equitable tolling.” (Maj. Op. 7).
On April 12, 2018, Avery filed the instant petition—his fourth habeas petition. (R. 1, PgID
16). After the district court denied the petition, this court granted Avery a certificate of
26
No. 20-3530, Avery v. Wainwright
appealability (COA) on one of his fifteen claims. Avery v. Wainwright, No. 20-3530, 2020 U.S.
App. LEXIS 33423, at *4, *9 (6th Cir. Oct. 22, 2020). Again, this court did not mention the statute
of limitations or equitable tolling in granting the COA.
II
Avery’s petition is barred by the statute of limitations and he is not entitled to equitable
tolling. Congress set a one-year statute of limitations for filing a federal habeas petition. See
28 U.S.C. § 2244(d)(1). This limitations period “run[s] from the latest of” four trigger dates,
§ 2244(d)(1)(A)-(D)—and the majority agrees that the relevant start date for Avery’s petition is
“the date on which [his] judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” See § 2244(d)(1)(A); see also Gonzalez v. Thaler, 565 U.S.
134, 150 (2012); (Maj. Op. 5-6). “A new, worse-than-before sentence . . . amounts to a new
judgment,” which “not only permits a challenge to either the new sentence or the undisturbed
conviction, but also restarts [the] one-year window to challenge that judgment.” Crangle v. Kelly,
838 F.3d 673, 678 (6th Cir. 2016) (per curiam); see also Freeman v. Wainwright, 959 F.3d 226,
230 (6th Cir. 2020) (“[W]e are not bound by the label a state court places on its actions” in deciding
whether there is new judgment for purposes of § 2244.).1
Accepting that Avery’s 2010 resentencing created a new judgment, the majority agrees that
Avery’s resentencing judgment became final on April 17, 2012—when the time for filing a petition
for certiorari with the United States Supreme Court expired ninety days after the Ohio Supreme
Court dismissed Avery’s resentencing appeal. Gonzalez, 565 U.S. at 150; (Maj. Op. 6).
1
Although the warden notes that as a result of Avery’s 2010 “resentencing,” “Avery’s sentence
did not change” because it “has always included a 30-year prison term with a 5-year term of
postrelease control,” the warden does not appear to contest that the resentencing restarted the one-
year clock. (Appellee Br. 10, 22-31).
27
No. 20-3530, Avery v. Wainwright
Accordingly, the limitations period started on April 17, 2012. And without equitable
tolling, it expired one year later on April 17, 2013. Avery, the magistrate judge, the district judge,
and the majority opinion agree on this much. (Reply Br. 6; R. 21, PgID 1557; R. 27, PgID 1606;
Maj Op. 6). But Avery filed the instant petition on April 12, 2018. (R. 1, PgID 16). Without
nearly six years of equitable tolling, this action is time-barred.
III
The majority agrees that “the facts here are undisputed, and so we review the district court’s
grant of equitable tolling de novo.” (Maj. Op. 6); see also Solomon v. United States, 467 F.3d 928,
932 (6th Cir. 2006). “[E]quitable tolling is used sparingly by federal courts. The party
seeking equitable tolling bears the burden of proving he is entitled to it.” Robertson v. Simpson,
624 F.3d 781, 784 (6th Cir. 2010) (citation omitted).
“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (cleaned up; emphasis added)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “[T]he diligence prong . . . covers those
affairs within the litigant’s control; the extraordinary-circumstances prong, by contrast, is meant
to cover matters outside its control.” Menominee Indian Tribe v. United States, 577 U.S. 250, 257
(2016). Even assuming Avery has shown diligence, he has not met his burden.
Nine months and six days after the limitations period started, Avery filed his third federal
habeas petition on January 23, 2013. (R. 5-2, PgID 865-70). But “the filing of a petition for
habeas corpus in federal court does not toll the statute of limitations.” Rhines v. Weber, 544 U.S.
269, 274-75 (2005). Over thirteen months after the expiration of the limitations period, this court
denied Avery authorization to file his third habeas petition. In re Avery, No. 13-4098, 2014 U.S.
28No. 20-3530, Avery v. Wainwright
App. LEXIS 25220, at *5-6 (6th Cir. May 21, 2014). By that time, the limitations period had long
since expired. But even if his 2013 petition did toll the clock until this court’s 2014 ruling, Avery
had less than three months to file his instant petition.
Avery has not established an “extraordinary circumstance.” Avery’s sole basis for
equitable tolling is that he “learned about the decisions in King and Stansell in May 2017 when
this court applied them to a case involving one of Avery’s fellow inmates.” (Reply Br. 5.) The
majority opinion represents, however, that “Avery is not merely claiming that he did not receive
notice of a legal rule and therefore he is entitled to equitable tolling. . . . He is relying on a change
in the law from which a [2018] panel of this court has already found he should benefit.” (Maj. Op.
11). These semantics do not change reality. And as the majority opinion candidly admits, this
court’s 2018 order “did not address the statute of limitations or equitable tolling.” (Maj. Op. 7);
see also In re Avery, No. 17-3769, 2018 U.S. App. LEXIS 4228.
Avery’s argument is not enough for several reasons.
First, as a fundamental matter, the majority opinion conflates the “diligence” prong and
the “extraordinary circumstance” prong, treating the two as the same. In finding that extraordinary
circumstances exist here, the majority opinion essentially repeats its diligence analysis and asks:
“What more could [Avery] have done to ensure that his current petition was filed in as timely a
manner as possible?” (Maj. Op. 11). But that pertains to the diligence prong, not the extraordinary
circumstances prong. These “two requirements” are “distinct elements.” Menominee Indian
Tribe, 577 U.S. at 255-56. “[T]he second prong of the equitable tolling test is met only where the
circumstances that caused a litigant’s delay are both extraordinary and beyond its control.” Id.
(relying on Holland, Pace, and Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)).
29
No. 20-3530, Avery v. Wainwright
Second, it is not extraordinary that, on July 1, 2016, this court in Stansell announced a
different interpretation of § 2244(b) than was previously applied in Avery’s case in 2014. As the
Supreme Court has explained:
It is hardly extraordinary that subsequently, after petitioner’s case was no longer
pending, this Court arrived at a different interpretation. Although our constructions
of federal statutes customarily apply to all cases then pending on direct review,
see, e.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993), not every
interpretation of the federal statutes setting forth the requirements for habeas
provides cause for reopening cases long since final. If Artuz justified reopening
long-ago dismissals based on a lower court’s unduly parsimonious interpretation of
§ 2244(d)(2), then Pace v. DiGuglielmo, 544 U.S. 408 (2005), would justify
reopening long-ago grants of habeas relief based on a lower court’s
unduly generous interpretation of the same tolling provision.
Gonzalez v. Crosby, 545 U.S. 524, 36-537 (2005) (first emphasis added; footnote omitted). For
better or worse, nonretroactive legal developments are not “extraordinary” circumstances for a do-
over. Id.; cf. United States v. Hunter, 12 F.4th 555, 562-69 (6th Cir. 2021); United States v.
McKinnie, 24 F.4th 583, 587-88 (6th Cir. 2022).
But even assuming Avery should be able to benefit from Stansell’s clarification of the law,
Avery did not file the instant petition until April 12, 2018. (R. 1, PgID 16). And the majority
agrees that was more than “one year and nine months after Stansell was decided.” (Maj. Op. 10).
Yet even after Stansell, Avery has not pointed to any “extraordinary circumstance that stood in his
way” of filing his petition. Holland, 560 U.S. at 649.
Second, Avery did not file the instant habeas petition in May 2017. Instead—two months
later—on July 17, 2017, Avery moved this court for authorization to file his fourth habeas petition.
(CA6 No. 17-3769, R. 1 at 1). That motion did not toll the limitations period. See Rhines, 544 U.S.
at 274-75. Avery made “a garden variety” procedural mistake—there was no obstacle outside his
control to justify equitable tolling. It is well established that his “pro se status and lack of
30
No. 20-3530, Avery v. Wainwright
knowledge of the law are not sufficient to constitute an extraordinary circumstance and to excuse
his late filing.” Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012).
Third, recall that this court decided Stansell on July 1, 2016. It is irrelevant that Avery did
not have actual notice of the case and its relevance to his situation until May 2017. Again, Avery’s
“pro se status and lack of knowledge of the law are not sufficient to constitute an extraordinary
circumstance and to excuse his late filing.” Id. Indeed, this court “has repeatedly held that
‘ignorance of the law alone is not sufficient to warrant equitable tolling.’” Allen v. Yukins,
366 F.3d 396, 403 (6th Cir. 2004) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991));
see also Martin v. Hurley, 150 F. App’x 513, 516 (6th Cir. 2005). Similarly, “an inmate’s lack of
legal training, his poor education, or even his illiteracy does not give a court reason to toll the
statute of limitations,” where these obstacles have “not prevented the petitioner from accessing the
courts.” Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). And “pro se status and limited law-
library access” do not merit equitable tolling. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745,
751 (6th Cir. 2011). Even a petitioner’s alleged lack of access to state court records and his case
file does not warrant equitable tolling. See id. (“If anything, the rules [governing habeas petitions]
seem to envision that petitioners may at times have to file their petitions without having had access
to the state-court record.”). If a petitioner need only make the bald assertion that he did not receive
notice of a new, nonretroactive legal rule—without more—every habeas applicant would be
entitled to equitable tolling and the limitations period set by Congress would be a nullity.
Neither Avery nor the majority opinion has cited a case where equitable tolling applied
based solely on a change in the law and further delay until a petitioner allegedly received actual
notice of the change.
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No. 20-3530, Avery v. Wainwright
Avery and the majority offer only the divided-panel decision in Jones v. United States,
689 F.3d 621, 626-28 (6th Cir. 2012). (Reply Br. 8; Maj. Op. 8-10). But this case is nothing like
Jones. There, this court held that Begay v. United States, 553 U.S. 137 (2008), announced “a new,
substantive rule,” that “applies retroactively.” Jones, 689 F.3d at 624-26. On the issue of equitable
tolling, Jones noted that “[g]enerally, to qualify as ‘extraordinary circumstances,’ the petitioner
must show more than just his status as pro se or his limited access to a law library.” Id. at 627
(citing Hall, 662 F.3d at 751). The court reasoned that: “Jones missed the one-year deadline by
less than three months”; Jones “did not learn of the Supreme Court’s holding in Begay until May
12, 2009”; “before Begay was announced, Jones . . . was transferred without his legal materials to
a new facility following medical treatment”; Jones was transferred “to yet another [facility] in
West Virginia, but he did not arrive until September 2008 after spending time in holding facilities
in Georgia and Oklahoma, still without his legal materials”; “Jones [was] partially illiterate and
. . . rel[ied] on other prisoners for knowledge of changes in the legal landscape”; he also had “a
variety of medical conditions, including seizures, that require frequent medication and impeded
his ability to adequately obtain legal information”; and “[w]ithin two months of learning of his
new right [under Begay],” he filed his “motion to vacate under § 2255.” Id. at 627. In concluding
that equitable tolling applied, Jones states: “Although any one of the above factors may not
constitute ‘extraordinary circumstances’ alone, the combination of all of these factors justifies
applying equitable tolling to Jones’s claims.” Id. at 627 (emphasis added). Jones acknowledged
our decision in Hall but makes no mention of the host of other binding precedent. See, e.g.,
Keeling, 673 F.3d at 464; Allen, 366 F.3d at 403; Cobas, 306 F.3d at 444.2
2
The concurrence in Jones did not find equitable tolling appropriate but concurred in the result
only “because the [government] waived the one-year procedural bar.” Jones, 689 F.3d at 628.
Here, the warden has not forfeited the statute of limitations argument. (R. 20, PgID 1526-37; R.
32
No. 20-3530, Avery v. Wainwright
This case does not involve any of the factors in Jones. Stansell is not a new, substantive
rule that applies retroactively. Avery does not have a serious mental or physical condition that
prevented him from filing on time. See Watkins v. Deangelo-Kipp, 854 F.3d 846, 851-52 (6th Cir.
2017); Ata v. Scutt, 662 F.3d 736, 742-45 (6th Cir. 2011). Avery was not separated from his legal
materials, he is not illiterate, and he did not miss the filing deadline by a mere three months.
The majority opinion even admits that “a variety of factors weighed into [the] decision in
Jones that are not present in Avery’s case.” (Maj. Op. 9). Yet it concludes, nonetheless, that
“Jones provides precedent for granting equitable tolling” here. Id. That is implausible. To the
extent Jones can be viewed as consistent with the binding decisions pre-dating Jones, its holding
was based on “the combination of all of th[e] factors” present in Jones. 689 F.3d at 627 (emphasis
added). Here, we do not have even a single factor that was present in Jones.
So what reason is there to grant equitable tolling here? We are left with only Avery’s mere
conclusory assertion that he did not file the instant petition until April 12, 2018—nearly six years
after his resentencing judgment became final, and more than one year and nine months after
Stansell—because the law did not change until July 2016 and Avery did not actually learn about
the change until he was personally informed by another inmate in May 2017. But as explained, a
change in the law, ignorance of that change, and pro se status are not grounds for equitable tolling.
The grant of equitable tolling here makes this case a first. No matter how you slice the
timeline here, Avery is not entitled to equitable tolling. In concluding otherwise, this case stands
as a marked, liberal expansion of equitable tolling in this jurisdiction.
24, PgID 1573-85; Appellee Br. 19-31.)
33
No. 20-3530, Avery v. Wainwright
* * *
I would affirm the district court’s dismissal of Avery’s habeas petition because it is barred
by the statute of limitations and Avery is not entitled to equitable tolling.
34