Jose Jurado, Jr. v. Sherry Burt

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0243P (6th Cir.)
File Name: 03a0243p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOSE JURADO, JR.,
Petitioner-Appellant,
v.
SHERRY BURT,
Respondent-Appellee.
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No. 02-1133
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor
No. 01-60045—Marianne O. Battani, District Judge.
Submitted: June 11, 2003
Decided and Filed: July 24, 2003
Before: MOORE and GIBBONS, Circuit Judges;
SCHWARZER, Senior District Judge.*
_________________
COUNSEL
ON BRIEF: Sarah E. Hunter, Birmingham, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE
2 Jurado v. Burt No. 02-1133
ATTORNEY GENERAL, CORRECTIONS DIVISION,
Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Jose Jurado, a
Michigan prisoner, appeals from the order of the district court
dismissing his petition for a writ of habeas corpus as time-
barred under the applicable one-year statute of limitations set
forth in the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Jurado concedes that his petition was
untimely under AEDPA. He argues, however, that equitable
tolling should apply to the nineteen months during which he
was investigating and preparing an application for state post-
conviction relief, the filing of which would have tolled
AEDPA’s limitations period. For the following reasons, we
reject this argument and affirm the district court’s decision.
I.
On October 15, 1992, a jury convicted Jurado of criminal
sexual conduct and assault with intent to do great bodily harm
less than murder. Jurado then pled guilty to being a second
felony offender. He was sentenced to concurrent prison terms
of fifty to one hundred years for the criminal sexual conduct
conviction and ten to fifteen years for the assault conviction.
Jurado exhausted his direct appeals in Michigan’s appellate
courts as of December 27, 1995. For AEDPA purposes,
Jurado’s conviction became final on March 27, 1996, after the
ninety-day period during which Jurado could have filed a
petition for certiorari in the Supreme Court of the United
States seeking direct review of his conviction. See, e.g.,
Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
AEDPA establishes a one-year statute of limitations period
for § 2254 petitions. See 28 U.S.C. § 2244(d). The one-year

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No. 02-1133 Jurado v. Burt 3
period begins to run from the latest of four circumstances, one
of which is “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). AEDPA
became effective on April 24, 1996. Because Jurado’s
conviction became final before AEDPA was enacted, he had
a one-year grace period, lasting until April 24, 1997, in which
to file his habeas petition. Cook v. Stegall, 295 F.3d 517, 519
(6th Cir.), cert. denied, 123 S.Ct. 699 (2002).
The one-year period of limitations is tolled by the amount
of time that “a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending” in state court. See 28
U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226-
27 (10th Cir. 1998) (“the one year grace period would be
tolled by any time spent pursuing properly filed
post-conviction proceedings”). Jurado did not, however, file
an application for state post-conviction review within the one-
year period.
Rather, he filed an application for state post-conviction
review in November 1997, approximately one year and seven
months after the one-year grace period began. Jurado retained
his current counsel in the spring of 1996 to assist him in
seeking state post-conviction relief under M.C.R. § 6.500 et
seq. Through counsel, he filed a motion for relief from
judgment on November 12, 1997. The trial court denied the
motion on the merits and then denied Jurado’s motion for
reconsideration. Jurado’s subsequent appeals to the state
courts were denied, and the Michigan Supreme Court denied
his delayed application for leave to appeal on February 29,
2000.
Almost one year later, on February 28, 2001, Jurado filed
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the Eastern
District of Michigan. In his habeas petition, Jurado argued
that equitable tolling should apply to save his petition for
4 Jurado v. Burt No. 02-1133
habeas relief because he was investigating and researching
claims for his request for state post-conviction relief during
the approximately nineteen months that elapsed between
April 24, 1996 (the start of the one-year grace period) and
November 12, 1997 (the date he filed an application for state
post-conviction relief). Alternatively, he argued that his
request for state post-conviction relief was “pending” during
that time under the meaning of the statute, such that the
statute tolled the period for filing for habeas relief.
The district court disagreed. It dismissed Jurado’s habeas
petition with prejudice, holding that equitable tolling did not
apply and that the petition was untimely under the statute.
The district court held that an application for state post-
conviction relief must be filed in order to be “pending” for the
purposes of tolling under 28 U.S.C. § 2244(d)(2). Further, it
noted that a motion for state post-conviction review that is
filed following the limitations period for seeking federal
habeas relief cannot toll that period because there is no period
remaining to be tolled. See Webster v. Moore, 199 F.3d 1256,
1259 (11th Cir. 2000). The district court declined to toll the
statute during the period in which Jurado’s counsel was
investigating potential claims, attempting to discover facts to
support his claims, and reviewing materials, because no
application for state post-conviction relief had been filed
during those time periods. The district court also noted that
Jurado had failed to allege specific facts as to how he had
“pursued” his state post-conviction relief claims during the
nineteen-month period.
Jurado then filed a motion for reconsideration and attached
an affidavit from his counsel, Sarah E. Hunter. Hunter
described her work on Jurado’s case. She asserted that she
obtained Jurado’s file from trial counsel on April 22, 1996,
and “analyzed his case by looking at every issue my client
identified.” She “did legal research as to the viability of each
issue, and spoke with witnesses and/or experts as needed.”
She made the following statements about her understanding
of AEDPA’s statute of limitations:

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No. 02-1133 Jurado v. Burt 5
In preparing Mr. Jurado’s case . . . I understood that
Michigan did not have a statute of limitations as to when
a petition for post judgment relief under MCR 6.500 et
seq[.] must be filed. However, Michigan did have a rule
indicating that only one such motion could be filed.
Accordingly, when issues came up that my client and I
believed we should look into, we did so. I chose not to
rush and file “anything” to stop the clock under AEDPA,
as many of my colleagues did, because I was concerned
that Mr. Jurado might fail to exhaust his constitutional
claims and fail to try to develop the factual predicates for
those claims in state court. At that time, I was not aware
of the case law that would evolve as to the tolling of the
statute of limitations under AEDPA.
At the time, I believed the AEDPA statue of limitations
was ambiguous as to whether the state court petition was
“properly filed” or “pending”. I do know that I was
confused as to whether I would be required to file the
motion in April, and that I determined that I would not
risk filing prematurely in state court just to stop the clock
and risk defaulting federal issues that we had not yet
analyzed as to their viability. However, I anticipated that
so long as we were steadily preparing Mr. Jurado’s bid
for post conviction relief by investigating potential
claims, we should not file prematurely in state court just
to stop the federal clock, as this would not be in the best
interests of my client and would not serve finality in state
court.
Hunter’s affidavit chronicled her activities related to Jurado’s
case during the nineteen-month period. She asserted that she
located and arranged meetings with various expert witnesses
(including a toxicologist, a neurologist, and a psychologist);
sought an advisory opinion on an undisclosed ethical
question; and attempted to obtain additional evidence, such as
the nurses’ notes from the victim’s hospital stay. She
indicated that she drafted and revised the motion for state
post-conviction relief over a five-month period, from July to
6 Jurado v. Burt No. 02-1133
November 1997. She stated that it was her strategy to
“investigate each and every claim or fact that the client
indicates was not attended to at trial or on direct appeal,” and
that she and her client “honed the issues steadily . . . between
April of 1997 and November of 1997.” As noted, the one-
year grace period expired on April 24, 1997.
The district court denied Jurado’s motion for
reconsideration, stating that “[t]he Court considered in its
original opinion the discovery and research accomplished by
counsel. The details of counsel’s work does not modify the
issues.” It granted a certificate of appealability with respect
to the issue of equitable tolling, and Jurado timely appealed.
II.
Jurado concedes that his habeas petition was untimely. He
also now concedes that his motion for state post-conviction
review was not “properly filed” and “pending” within the
meaning of 28 U.S.C. § 2244(d)(2) during AEDPA’s one-year
grace period, such that it did not toll the grace period under
the statute. Thus, his only claim on appeal is that the doctrine
of equitable tolling should apply to his case. We review this
claim de novo. Dunlap v. United States, 250 F.3d 1001, 1007
(6th Cir. 2001) (where the facts of the case are undisputed and
the district court rules as a matter of law that equitable tolling
is unavailable, this court reviews de novo).
Jurado bears the burden of demonstrating that he is entitled
to equitable tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th
Cir. 2002). The doctrine is used sparingly by federal courts.
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 560 (6th Cir. 2000) (citations omitted).
“Typically, equitable tolling applies only when a litigant’s
failure to meet a legally-mandated deadline unavoidably arose
from circumstances beyond that litigant’s control.” Id. at
560-61. The Supreme Court has explained that “[w]e have
allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective

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No. 02-1133 Jurado v. Burt 7
pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
However, “[w]e have generally been much less forgiving . . .
where the claimant failed to exercise due diligence in
preserving his legal rights.” Id.; cf. Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 151 (1984) (“One who fails to
act diligently cannot invoke equitable principles to excuse
that lack of diligence.”). “Absent compelling equitable
considerations, a court should not extend limitations by even
a single day.” Graham-Humphreys, 209 F.3d at 561.
This court determines whether to equitably toll AEDPA’s
statute of limitations using the five-factor test set forth in
Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). Dunlap,
250 F.3d at 1010. The court considers: (1) the petitioner’s
lack of notice of the filing requirement; (2) the petitioner’s
lack of constructive knowledge of the filing requirement;
(3) diligence in pursuing one’s rights; (4) absence of prejudice
to the respondent; and (5) the petitioner’s reasonableness in
remaining ignorant of the legal requirement for filing his
claim. Id. at 1008. This list of factors is not necessarily
comprehensive, and not all factors are relevant in all cases.
Miller v. Collins, 305 F.3d 491 (6th Cir. 2002).
In this case, the first two factors – petitioner’s lack of notice
and lack of constructive knowledge of the filing requirement
– weigh against equitable tolling of the limitations period.
Jurado stated in his brief that he “had to choose between
prematurely filing a petition for post-conviction relief in state
court that was not adequately supported by facts, or waiting
to file until all facts had been reasonably investigated and
evaluated, even if the grace period under AEDPA expired.”
At the time, his counsel “believed it was more important to
develop Petitioner’s case in accord with standards of
professional conduct” than it was to comply with AEDPA’s
statute of limitations, according to his brief. Thus, Jurado
does not contend that he or his counsel was unaware of
8 Jurado v. Burt No. 02-1133
1The hospital declined to honor the subpoena beca use there was no
pending case. As the district court pointed out, Hunter could have filed
the motion for relief from judgm ent at that time with an affidavit attesting
to her unsuccessful attempts to obtain the medical records. The hospital
then would have likely provided the records in light of the pending case.
AEDPA’s one-year limitations period. Rather, they made a
tactical decision to continue investigating claims for his state
post-conviction relief application although they were aware
that his time in which to file for habeas relief would expire.
Where the litigant does not claim lack of knowledge or
notice of the filing requirement, this court’s inquiry is focused
on examining his diligence in pursuing his rights and the
reasonableness of his ignorance of the effect of his delay. See
Andrews, 851 F.2d at 151. Jurado contends that he was
diligent in pursuing his rights. In support, he offers Hunter’s
affidavit, which details her work on his case. She states that
she received his file on April 22, 1996, and met with Jurado
and his family several times thereafter. She sought an
opinion from the state bar regarding an undisclosed ethics
question and received the opinion on June 20, 1996. She
contacted an undisclosed expert in June 1996, met with him
in October 1996, and determined in December 1996 that he
would not benefit Jurado’s case. In January 1997, Hunter
spoke to a toxicologist about the effects of the drugs that the
victim received in the emergency room where the victim gave
statements about the crime. She also spoke to a psychologist
about the effect of drugs, alcohol, and pain medication on a
person’s ability to remember or contrive. She reviewed the
DNA evidence in Jurado’s case but determined that there was
no meritorious issue to raise with regard to it. In April 1997,
she sent a subpoena to the hospital where the victim was
treated, in order to obtain nurses’ notes.1 In April 1997,
AEDPA’s one-year grace period expired. Though aware of
the language of the statute’s tolling provision, Hunter “chose
not to rush” to file the request for state post-conviction relief.
Hunter’s affidavit accounts for the additional seven months

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No. 02-1133 Jurado v. Burt 9
as well. In May 1997, she considered and abandoned an issue
related to Jurado’s habitual offender charge. In June, she
gave a draft of the motion for post-conviction relief to Jurado
and his family. In July, Hunter revised the draft’s sufficiency
of the evidence argument. Also, she obtained and reviewed
Jurado’s medical records from Mexico. She attempted to
contact several neurologists and spoke to two, Drs. Sid
Broder and John Blase. In August 1997, Hunter met with
Jurado and they finally determined which issues to raise in the
motion for state post-conviction relief. On November 12,
1997, she filed the motion.
Although Jurado’s counsel certainly undertook
investigatory and preparatory actions in Jurado’s case during
the nineteen-month period, these actions did not constitute
due diligence in pursuit of his rights. Jurado’s trial lasted
three days and involved three trial transcripts, plus a fourth
transcript where Jurado then pled guilty to being a habitual
offender. The district court found that the case was not
complex and that the factual bases for the three claims raised
in the habeas petition (sufficiency of evidence, confrontation
clause, and ineffective assistance of counsel) “could all have
been readily apparent after reading the transcripts.” A
reasonably diligent attorney could have pursued these claims
within one year’s time. Arguably, counsel’s activities amount
to due (and perhaps excessive) diligence in pursuing every
possible theory, no matter how feeble. They do not, however,
amount to diligence in pursuing his rights, where counsel was
on notice of AEDPA’s one-year grace period and failed to act
within the period. As the district court stated, AEDPA does
not convey a right to an extended delay while a habeas
petitioner gathers every possible scrap of evidence that might
support his claim. See Flanagan v. Johnson, 154 F.3d 196,
199 (5th Cir. 1998). Neither does the doctrine of equitable
tolling grant such a right.
The fourth factor, whether respondent was prejudiced by
the delay in filing, is irrelevant here. Absence of prejudice is
a factor to be considered only after a factor that might justify
10 Jurado v. Burt No. 02-1133
tolling is identified. Baldwin County, 466 U.S. at 152;
Andrews, 851 F.2d at 151.
The final factor is petitioner’s reasonableness in remaining
ignorant of the legal requirement for filing his claim.
Jurado’s counsel was aware of the section of AEDPA that
provides for tolling, 28 U.S.C. § 2244, which states that,
“[t]he time during which a properly filed application for State
post-conviction or other collateral review . . . is pending shall
not be counted toward any period of limitation under this
subsection.” She states that she believed this section was
ambiguous as to whether an application that had not been
filed with any court was “properly filed” and “pending.” She
“was not aware of the case law that would evolve as to the
tolling of the statute of limitations under AEDPA.” Thus, she
“was confused as to whether [she] would be required to file
the motion in April.” Id.
Generally, “a lawyer’s mistake is not a valid basis for
equitable tolling.” Whalen v. Randle, 37 Fed. Appx. 113, 120
(6th Cir. 2002); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
2001) (“attorney error, miscalculation, inadequate research,
or other mistakes have not been found to rise to the
‘extraordinary’ circumstances required for equitable tolling”);
Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000)
(attorney’s misreading of AEDPA did not require equitable
tolling). “[T]he remedy for negligence by a party’s lawyer is
generally a legal malpractice suit or an ineffective assistance
of counsel claim, not forcing the opposing party to defend
against a stale claim.” Whalen, 37 Fed. Appx. at 120 (citing
Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999)).
Jurado’s brief cites no authority showing that it was
reasonable to believe that a motion that was merely being
investigated and drafted was “properly filed.” In view of the
plain language of the statute, this belief was not reasonable.
Accordingly, application of the five-factor test indicates
that equitable tolling is not appropriate in this case. We
therefore affirm the district court’s decision.

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