Charmel Allen v. JOAN N. YUKINS, Warden

*The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 114P (6th Cir.)
File Name: 04a114p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CHARMEL ALLEN,
Petitioner-Appellant,
v.
JOAN N. YUKINS, Warden,
Respondent-Appellee.
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No. 03-1078
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-74002—Victoria A. Roberts, District Judge.
Submitted: March 17, 2004
Decided and Filed: April 20, 2004
Before: KRUPANSKY and GILMAN, Circuit Judges;
RUSSELL, District Judge.*
_________________
COUNSEL
ON BRIEF: Craig A. Daly, Detroit, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE
2 Allen v. Yukins No. 03-1078
ATTORNEY GENERAL, CORRECTIONS DIVISION,
Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Petitioner
Charmel Allen, a Michigan state prisoner, appeals from the
district court’s dismissal of her petition for a writ of habeas
corpus. The district court concluded that Allen’s petition was
barred by the one-year statute of limitations imposed by the
Antiterrorism and Effective Death Penalty Act (AEDPA).
Allen contends that the district court erred in dismissing her
petition. She first argues that her motion for state
postconviction relief, which claimed that her counsel on direct
appeal had been constitutionally ineffective, should be
considered part of the direct appeals process, thus delaying
the start of AEDPA’s statute of limitations. Alternatively,
Allen argues that even if her petition was untimely, the delay
should be excused either because she is entitled to equitable
tolling or because she is actually innocent of the crime for
which she was convicted. For the reasons set forth below, we
AFFIRM the judgment of the district court.
I. BACKGROUND
A jury convicted Allen of both felony murder and assault
with the intent to commit murder on the basis of an incident
that occurred in September of 1990. The Michigan Court of
Appeals provided the following summary of the facts
underlying Allen’s conviction:
Defendant lived in an apartment across the hall from
Brian Carson and Larry Wallace, who were roommates.
At trial, it was revealed that on the date in question,
defendant could not account for approximately $1,200 of
her ex-boyfriend’s money. Testimony revealed that this

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No. 03-1078 Allen v. Yukins 3
money was derived from the illegal drug trade. The
prosecution theorized that defendant was fearful of the
probable consequences of her inability to locate the
missing funds and, thus, desperately plotted to recoup
them. Hence, on the night in question, defendant,
accompanied by Anastasia [Allen, the defendant’s sister]
and [Ronald] Light, forcibly entered Carson’s and
Wallace’s apartment and asked for money—Light
possessed a firearm. A struggle ensued. Wallace died as
a result of being shot at close range, and Carson was
severely wounded.
The Michigan Court of Appeals vacated Allen’s conviction
for felony murder in May of 1991, but affirmed her
conviction for assault with the intent to commit murder. Both
the prosecution’s application for leave to appeal and Allen’s
application for leave to cross-appeal were subsequently
denied by the Michigan Supreme Court.
On remand to the trial court, Allen pleaded nolo contendere
to a charge of manslaughter. The Michigan Court of Appeals
affirmed her manslaughter conviction and sentence on
September 23, 1997. Allen did not seek leave to appeal this
decision to the Michigan Supreme Court.
She later filed a motion for relief from judgment in the trial
court on September 28, 1998, seeking resentencing on the
assault charge. The trial court denied Allen’s motion. She
then filed a delayed application for leave to appeal, which was
denied by both the Michigan Court of Appeals and the
Michigan Supreme Court. The Michigan Supreme Court
denied Allen’s motion for reconsideration on October 30,
2000.
Allen filed her petition for a writ of habeas corpus in the
district court almost a year later, on October 22, 2001. The
petition challenges the constitutionality of her conviction and
sentence on the assault charge. She does not, however,
challenge the constitutionality of either the subsequent plea of
4 Allen v. Yukins No. 03-1078
nolo contendere to the manslaughter charge or the resulting
sentence.
II. ANALYSIS
A. Standard of review
This case is governed by AEDPA, codified principally at
28 U.S.C. § 2254(d), because Allen filed her habeas petition
in October of 2001, well after AEDPA’s effective date of
April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336
(1997). Under AEDPA, factual findings made by a state
court are presumed correct unless the petitioner rebuts the
presumption with clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). We review the district court’s decision to deny
a writ of habeas corpus de novo. Gonzales v. Elo, 233 F.3d
348, 352 (6th Cir. 2000).
B. Does a state postconviction motion claiming
ineffective assistance of appellate counsel restart
AEDPA’s statute of limitations?
AEDPA imposes a one-year statute of limitations for
habeas petitions that challenge state-court judgments. The
relevant section provides as follows:
(1) A 1-year statute of limitations shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
time for seeking such review . . . .
28 U.S.C. § 2244(d). AEDPA further provides, however, that
the statute of limitations is tolled for “[t]he time during which
a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending . . . .” 28 U.S.C. § 2244(d)(2).

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No. 03-1078 Allen v. Yukins 5
1. When did direct review of Allen’s assault
conviction conclude?
The timeliness of Allen’s petition turns on when the
judgment in her state case became final, thereby starting
AEDPA’s one-year limitations period. According to the
district court, the triggering event occurred when the
Michigan Court of Appeals affirmed Allen’s manslaughter
conviction and sentence on September 23, 1997. The district
court reasoned that Allen’s conviction became final 56 days
later, on November 18, 1997, when her time to appeal to the
Michigan Supreme Court expired. See Michigan Court
Rule 7.302(C)(2).
Although Allen’s brief is not clear on this point, she
appears to argue that her conviction was actually final much
earlier, on October 14, 1994, when the Michigan Supreme
Court denied her application for leave to cross-appeal the
Court of Appeals’s decision affirming her assault conviction.
She argues for this earlier date in the apparent belief that it
bolsters her contention that equitable tolling should be
applied. See Part II.C.1. below. Because Allen’s conviction,
under this theory, would have been final prior to the
enactment of AEDPA, Allen’s time to file her habeas petition
would have expired on April 24, 1997. See Austin v.
Mitchell, 200 F.3d 391, 393 (6th Cir. 1999) (holding that
petitioners whose convictions became final before the
enactment of AEDPA had a one-year grace period after
AEDPA’s effective date to file their federal habeas petitions).
Allen, however, did not file her habeas petition until
October 22, 2001, approximately four years and six months
later.
We do not have to decide, however, whether the district
court was correct in concluding that Allen’s conviction did
not become final until November 18, 1997. Even giving
Allen the benefit of that later date, her petition was still
untimely.
6 Allen v. Yukins No. 03-1078
If Allen’s conviction became final on November 18, 1997,
then AEDPA’s statute of limitations would have begun
running the next day, November 19, 1997. See Fed. R. Civ.
P. 6 (“In computing any period of time prescribed or allowed
by these rules, by the local rules of any district court, by order
of court, or by any applicable statute, the day of the act, event,
or default from which the designated period of time begins to
run shall not be included.”). The statutory period would then
have been tolled from the date that Allen filed her motion for
relief from judgment, September 28, 1998. See 28 U.S.C.
§ 2244(d)(2). At that time, 51 days would have remained of
the one-year limitations period.
The state postconviction review process continued until
October 30, 2000, when the Michigan Supreme Court denied
Allen’s motion for reconsideration. See Carey v. Saffold,
536 U.S. 214, 219-20 (2002) (concluding that an application
for state postconviction relief is pending, and the federal
statute of limitations is therefore tolled, “as long as the
ordinary state collateral review process is ‘in continuance’”).
After Allen’s motion was denied, the statute of limitations
would have continued to be tolled during the 90 days in
which Allen could have sought a writ of certiorari from the
United States Supreme Court. See Abela v. Martin, 348 F.3d
164, 172-73 (6th Cir. 2003) (en banc). That 90-day period
would have expired on January 28, 2001, causing the federal
statute of limitations to resume running the next day, on
January 29, 2001. With 51 days remaining in the statutory
period, Allen would have had until March 20, 2001 to file her
habeas petition in the district court. But Allen did not file her
habeas petition until October 22, 2001, approximately seven
months later.
Thus, whether the direct-review process concluded when
the Michigan Court of Appeals affirmed Allen’s assault
conviction, or when that court subsequently affirmed her
manslaughter conviction, the result is the same: Allen’s
petition was untimely. We therefore will assume without

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No. 03-1078 Allen v. Yukins 7
deciding that the district court’s analysis was correct, and that
Allen’s conviction became final on November 18, 1997.
2. Does a state postconviction motion claiming
ineffective assistance of appellate counsel
restart the one-year limitations period?
In an attempt to demonstrate that her petition was in fact
timely, Allen argues that a state postconviction motion
claiming ineffective assistance of appellate counsel should be
considered part of the state’s direct-review process. Under
this theory, Allen’s habeas petition would have been timely
because the state courts did not finally dispose of her
postconviction motion, which claimed ineffective assistance
of appellate counsel, until October 30, 2000, less than one
year before Allen filed her habeas petition in federal court.
Allen relies on this court’s decision in Payton v. Brigano,
256 F.3d 405 (6th Cir. 2001), in which this court observed in
a footnote that, under Ohio law, a state postconviction motion
claiming ineffective assistance of appellate counsel is
considered part of the state’s direct-review process. Id. at 409
n.4.
The argument she raises, however, was rejected in
McClendon v. Sherman, 329 F.3d 490 (6th Cir. 2003), where
the petitioner was a Michigan state prisoner, as is Allen. In
McClendon, this court stated: “We reject McClendon’s
contention that whenever a prisoner raises an allegation in his
state post-conviction proceedings that he was denied the
effective assistance of counsel on direct appeal, his conviction
does not become final until those state post-conviction
proceedings have ended.” Id. at 493. The McClendon court
emphasized that, even in the unique context of Ohio law,
“upon the filing of an ineffective assistance claim in state
court, the statute of limitations is not restarted, but merely
tolled.” Id. at 494.
McClendon clearly holds that a state petition for
postconviction review claiming ineffective assistance of
8 Allen v. Yukins No. 03-1078
appellate counsel tolls, but does not restart, AEDPA’s one-
year statute of limitations. Allen therefore filed her habeas
petition seven months late, unless she is entitled to the
equitable tolling of AEDPA’s statutory period.
C. Is Allen entitled to the equitable tolling of
AEDPA’s one-year statute of limitations?
Because AEDPA’s one-year statute of limitations is not
jurisdictional, a petitioner who misses the deadline may still
maintain a viable habeas action if the court decides that
equitable tolling is appropriate. Dunlap v. United States, 250
F.3d 1001, 1007 (6th Cir.), cert. denied, 122 S.Ct. 649 (2001).
“The petitioner bears the burden of demonstrating that he [or
she] is entitled to equitable tolling.” McClendon, 329 F.3d at
494. In a case like the present one, where the facts are
undisputed and the district court decides as a matter of law
that equitable tolling does not apply, this court reviews the
district court’s decision de novo. Dunlap, 250 F.3d at 1007-
08 n.2.
A court must consider the following factors in deciding
whether equitable tolling should apply:
(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.”
Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003). This
court has also emphasized that “[a]bsence of prejudice is a
factor to be considered only after a factor that might justify
tolling is identified.” Id.

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No. 03-1078 Allen v. Yukins 9
1. Allen’s lack of actual or constructive
knowledge of the filing requirement
Allen first contends that she is entitled to equitable tolling
because she lacked actual or constructive knowledge of the
filing requirement. This court considered a similar situation
in McClendon, where the petitioner’s conviction became final
in August of 1995, before the enactment of AEDPA on
April 24, 1996. 329 F.3d at 493. But McClendon did not file
his habeas petition until November of 2000, eleven months
after this court’s decision in Austin v. Mitchell, 200 F.3d 391
(6th Cir. 1999). McClendon, 329 F.3d at 492. The Austin
court held that petitioners whose convictions became final
before the enactment of AEDPA had until April 24, 1997 to
file their habeas petitions. This court in McClendon
concluded that the decision in Austin informed McClendon
that the time for filing his habeas petition had lapsed, and that
McClendon had shown a lack of diligence by waiting eleven
months after Austin was decided before filing his habeas
petition. Id. at 495. McClendon, in other words, had
constructive knowledge of the filing requirement through a
published opinion of this court.
As discussed above, Allen’s conviction became final either
prior to the enactment of AEDPA or, as the district court
concluded, on November 18, 1997, more than a year after
AEDPA’s effective date. Allen had notice of AEDPA’s one-
year statute of limitations either way. If her conviction
became final prior to the enactment of AEDPA, then she was
on notice of the limitations period when this court decided
Austin. But Allen contends that Austin provided insufficient
notice because it was not decided until 1999 and therefore
“did absolutely nothing for inmates such as Petitioner,
because they could do nothing retroactively to file or toll the
running of the statute.” To the contrary, “a reasonably
diligent effort to file within a reasonably quick time [after
Austin was decided] might have entitled [Allen] to equitable
tolling[,]” despite the fact that the statutory period would
already have lapsed. McClendon, 329 F.3d at 495.
10 Allen v. Yukins No. 03-1078
Even assuming that Allen’s conviction did not become final
until November 18, 1997, as held by the district court, she
still had notice of the limitations period. The AEDPA statute
plainly states that the one-year statute of limitations runs from
the “conclusion of direct review” and that the statutory period
is tolled during the time when a motion for state
postconviction review is pending. 28 U.S.C. §§ 2244(d)(1)-
(2). These statutory provisions clearly explained to Allen
how AEDPA’s statute of limitations would apply to her case.
Notice by means of a statute, moreover, is certainly as
adequate as notice through a published court opinion.
Allen, however, contends that confusion existed about the
application of AEDPA’s statutory period. According to
Allen,
[i]n light of the fact that the court’s [sic] were having
difficulty in interpreting and applying the statute of
limitations for inmates whose convictions occurred
before the enactment of AEDPA, it can hardly be said
that inmates themselves should have known how the
statute would operate.
But the district court explained the flaw in Allen’s argument
as follows:
The law was somewhat unsettled as [to] petitioners
whose convictions became final before the effective date
of AEDPA. This Court is not aware, however, of the law
being unsettled regarding when the one year statute of
limitations would begin running for petitioners such as
Allen, whose convictions became final after the effective
date of AEDPA.
Because of this court’s decision in Austin and AEDPA’s
clear provisions regarding the statute of limitations, Allen
cannot claim a lack of constructive knowledge regarding the
filing deadline. Even if Allen lacked actual knowledge of the
relevant provisions of AEDPA, this court has repeatedly held

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No. 03-1078 Allen v. Yukins 11
that “ignorance of the law alone is not sufficient to warrant
equitable tolling.” Rose v. Dole, 945 F.2d 1331, 1335 (6th
Cir. 1991). We therefore conclude that Allen’s purported lack
of actual or constructive knowledge does not make equitable
tolling appropriate.
2. Allen’s lack of diligence in pursuing her
rights
Allen next contends that equitable tolling is appropriate
because she was diligent in pursuing her rights. Using the
district court’s analysis of the date on which Allen’s
conviction became final, however, she filed her habeas
petition approximately seven months late. Under the
alternative analysis, her petition would have been filed
approximately four years and six months late. Even giving
Allen the benefit of the shorter period, she still has offered no
adequate reason for the delay.
Allen contends, however, that one reason for her delay is
that she received mistaken advice contained in two letters
written to her by her attorney. The first is dated
September 20, 1995, when the cases of Allen’s codefendants
were still pending in the Michigan Supreme Court. Allen’s
case had returned to the trial court, where she eventually pled
nolo contendere to a charge of manslaughter. In the first
letter, the lawyer advised Allen to wait and see how the
Supreme Court decided her codefendants’ cases before she
decided whether to appeal a pretrial order in her remanded
proceeding.
Assuming, once again, that Allen’s conviction was not final
until soon after the Michigan Court of Appeals affirmed her
manslaughter conviction and sentence, the attorney’s advice
to Allen in the first letter is not relevant to Allen’s delay in
filing her federal habeas petition. At the time the attorney
wrote the letter, Allen had not yet pled guilty to manslaughter,
much less started the process of direct review. AEDPA,
however, clearly states that the statute of limitations runs
12 Allen v. Yukins No. 03-1078
from the conclusion of direct review. 28 U.S.C.
§ 2244(d)(1)(A). The advice of the attorney, therefore, could
not have affected Allen’s federal rights. Even if Allen had
followed the attorney’s suggestion and delayed her decision
of whether to appeal the pretrial order, the federal statute of
limitations still would not have started until the conclusion of
both the trial proceedings and direct review.
The second letter to Allen from her attorney is dated
March 24, 1997, which was after Allen was sentenced on the
manslaughter charge, but before Allen had appealed that
conviction and sentence to the Michigan Court of Appeals.
In the second letter, Allen’s attorney states: “I know you have
asked about federal habeas corpus relief. I’m not an expert on
that procedure, but it would seem to me that you are a long
way from exhausting your state court remedies, a prerequisite
typically to federal relief.” Allen contends that the attorney’s
“lack of knowledge of the statute of limitations” is a factor
that supports the application of equitable tolling in this case.
This court has held, however, that a petitioner’s reliance on
the unreasonable and incorrect advice of his or her attorney is
not a ground for equitable tolling. Jurado v. Burt, 337 F.3d
638, 644-45 (6th Cir. 2003). Although not directly on point,
Jurado suggests that equitable tolling is not appropriate in
this case. In Jurado, the attorney (unintentionally) misled the
petitioner; in the present case, Allen’s attorney simply
admitted that he was not an expert in federal habeas
procedures. The advice that Allen’s attorney did provide,
moreover, was correct: Allen could not file a habeas petition
until she had exhausted her state remedies. See
28 U.S.C.§ 2254(b)(1) (“An application for a writ of habeas
corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it
appears that—(A) the applicant has exhausted the remedies
available in the courts of the State . . . .”).
If equitable tolling was not appropriate in Jurado, where
the petitioner detrimentally relied on the unintentionally

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No. 03-1078 Allen v. Yukins 13
incorrect advice from his attorney, then tolling is certainly not
appropriate here, where Allen’s attorney simply admitted that
he lacked the relevant legal knowledge and gave Allen advice
that was, in fact, correct. The attorney’s second letter to
Allen therefore provides no basis for the application of
equitable tolling.
3. Length of Allen’s delay in filing her habeas
petition
Allen also claims that she is entitled to equitable tolling
because the seven-month delay between the conclusion of the
state postconviction proceedings and the time she filed her
habeas petition was reasonable. But this court has declined to
apply equitable tolling where the delay was far less than
seven months. See, e.g., Cook v. Stegall, 295 F.3d 517, 518
(6th Cir. 2002) (concluding that equitable tolling was not
appropriate where the petitioner filed his habeas petition one
month late); Dunlap v. United States, 250 F.3d 1001, 1010
(6th Cir. 2002) (holding that the petitioner was not entitled to
equitable tolling where he filed his habeas petition more than
two months late). In light of Cook and Dunlap, the length of
Allen’s delay does not support the application of equitable
tolling; in fact, the length of her delay actually suggests that
equitable tolling is not appropriate in this case.
4. Lack of prejudice to the respondent
Allen finally argues that equitable tolling is appropriate
because the state has not been prejudiced by the delay. As
noted above, however, this court has held that the “[a]bsence
of prejudice is a factor to be considered only after a factor that
might justify tolling is identified.” Vroman v. Brigano,
346 F. 3d at 605. Because Allen has failed to demonstrate the
existence of a factor that justifies tolling, we may not consider
the alleged lack of prejudice.
14 Allen v. Yukins No. 03-1078
D. Does Allen’s claim of actual innocence allow her
to circumvent AEDPA’s statute of limitations?
Allen finally contends that, even if her habeas petition was
untimely, her claims should still be considered because she is
actually innocent of the assault-with-the-intent-to-commit-
murder charge. Although one district court within this circuit
has held that the United States Constitution requires an
actual-innocence exception to AEDPA’s statute of
limitations, see Holloway v. Jones, 166 F. Supp. 2d 1185,
1190 (E.D. Mich. 2001), this court has never endorsed that
view. One case that provides useful guidance, however, is
Whalen v. Randle, 2002 WL 409113 (6th Cir. March 12,
2002) (unpublished opinion), where this court declined to
decide whether an actual-innocence exception exists because
the petitioner in that case was “unable to demonstrate that he
was actually innocent of the charges for which he was
convicted.” Id. at *7.
Although the Whalen court declined to adopt an actual-
innocence exception, the court suggested the likely
requirements of such a claim:
Other circuits that have considered such an exception
have set a very high bar for actual innocence claims,
since a substantial claim that constitutional error has
caused the conviction of an innocent person should be
extremely rare. The exception requires petitioner to
“show that it is more likely than not” that no reasonable
juror would have found [him] guilty beyond a reasonable
doubt in light of all the evidence. The petitioner must
produce evidence of innocence so strong that the court
can not “have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of
nonharmless constitutional error.”
Id. at *6 (citations omitted).

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No. 03-1078 Allen v. Yukins 15
In the present case, Allen first contends that the evidence
presented at trial was insufficient to demonstrate that she
aided and abetted the gunman, Ronald Light, in committing
the crime of assault with the intent to commit murder. But
this evidence was actually presented to a jury, which found
Allen guilty. Allen therefore cannot credibly contend that no
hypothetical reasonable juror, after hearing the trial evidence,
would have found Allen guilty beyond a reasonable doubt; an
entire jury did exactly that.
Beyond the trial evidence, Allen also claims that affidavits
by her codefendants, Anastasia Allen and Light, demonstrate
her innocence. Her sister Anastasia’s affidavit states:
1. That I, Anastasia Allen, did not hear Charmel Allen
ask, nor encourage, instigate, express nor imply to
Ronald Light that she desired him to assault Brian
Carson, and;
2. That I, Anastasia Allen and Charmel Allen never
discussed, planned nor intended for Ronald Light to
assault Brian Carson before, during, after nor in the
presence [sic].
In a similar vein, Light’s affidavit reads:
1. That I, Ronald Light, did not receive any assistance,
encouragement, nor counseling from Charmel C. Allen,
and;
2. That there was not a common design or purpose
between Charmel Allen and I, and;
3. That Charmel Allen and I did not share any criminal
intent on the assault against Brian Carson, and;
4. That no advice or advisement was given to me by
Charmel Allen during, before, in between nor after the
assault on Brian Carson.
16 Allen v. Yukins No. 03-1078
Anastasia’s affidavit in essence states that (1) Allen did not,
in the presence of Anastasia, encourage Light to shoot
Carson, and (2) Allen and Anastasia did not jointly encourage
Light to shoot Carson. But the affidavit does not eliminate
the possibility that Allen, outside of the presence of
Anastasia, encouraged Light to shoot Carson. Anastasia’s
affidavit is therefore insufficient to demonstrate actual
innocence.
Light’s affidavit, on the other hand, has the potential to
exculpate Allen. As the district court noted, however,
postconviction statements by codefendants are inherently
suspect because codefendants may try to assume full
responsibility for the crime without any adverse
consequences. But Allen contends that the district court’s
analysis was incorrect because “Mr. Light has effectively
deprived himself of any opportunity to seek legal recourse for
his release by signing the affidavit and disclosing the truth.”
The flaw in Allen’s argument, however, is that Light’s
affidavit exculpates Allen, but does not actually inculpate
Light in any way. Thus, the district court correctly concluded
that Light’s affidavit was inherently suspect because Light
could have signed the affidavit in order to help his
codefendant Allen without endangering his own interests.
Aside from its lack of reliability, Light’s affidavit is
insufficient to demonstrate that Allen is innocent because
Light’s assertions are inconsistent with the evidence presented
at trial. According to the Michigan Court of Appeals, the
evidence introduced at trial demonstrated the following:
• On the date of the incident, Allen could not account for
$1,200 of her ex-boyfriend’s money;
• Allen “orchestrated the plan to bring Anastasia and Light
to Wallace’s and Carson’s apartment”;
• After arriving at the apartment, Allen “coaxed Carson
into unlocking his door”;

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No. 03-1078 Allen v. Yukins 17
• Allen, Anastasia, and Light then “forcibly entered” the
apartment;
• “[W]hile Light pointed the gun at Carson and Wallace,
[Allen] demanded money.”
We must presume that these factual findings by the Michigan
Court of Appeals are correct unless Allen rebuts that
presumption with clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
Light’s affidavit essentially asserts that Allen never
encouraged him to participate in either the attempt to get
money from Carson and Wallace or the shooting. This
assertion is inconsistent with the evidence presented at trial
demonstrating that Allen, not Light, had the motive to obtain
money from Carson and Wallace. Light’s affidavit is also
contrary to the Michigan Court of Appeal’s finding that Allen
“orchestrated the plan to bring Anastasia and Light to
Wallace’s and Carson’s apartment.”
This court noted in Whalen that the actual-innocence
exception “requires petitioner to ‘show that it is more likely
than not’ that no reasonable juror would have found [him]
guilty beyond a reasonable doubt in light of all the evidence.”
2002 WL at *6 (citing Schlup v. Delo, 513 U.S. 298, 327
(1995)). In the present case, Allen’s evidence of her alleged
innocence consists of two postconviction affidavits from her
codefendants. One affidavit is facially insufficient to
establish that Allen is innocent; the other is inherently
unreliable and contradicted by the evidence presented at trial.
In light of the foregoing, we conclude that a reasonable juror
could easily find beyond a reasonable doubt that Allen is
guilty of assault with the intent to commit murder.
Because the affidavits are legally insufficient to establish
that Allen is actually innocent of the assault charge, we will
follow the lead of the Whalen court and “decline to reach the
18 Allen v. Yukins No. 03-1078
question of whether the Constitution requires an actual-
innocence exception to [28 U.S.C.] § 2244(d)(1).” Id. at *7.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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