Mark Vroman v. ANTHONY BRIGANO, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0338P (6th Cir.)
File Name: 03a0338p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARK VROMAN,
Petitioner-Appellant,
v.
ANTHONY BRIGANO, Warden,
Respondent-Appellee.
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No. 02-3258
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 99-01277—Algenon L. Marbley, District Judge.
Argued: August 1, 2003
Decided and Filed: September 22, 2003
Before: KENNEDY, GILMAN, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: William R. Gallagher, ARENSTEIN &
GALLAGHER, Cincinnati, Ohio, for Appellant. Stephanie
L. Watson, OFFICE OF THE ATTORNEY GENERAL,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee. ON BRIEF: William R. Gallagher,
ARENSTEIN & GALLAGHER, Cincinnati, Ohio, for
2 Vroman v. Brigano No. 02-3258
Appellant. Stephanie L. Watson, OFFICE OF THE
ATTORNEY GENERAL, CORRECTIONS LITIGATION
SECTION, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Petitioner-
appellant Mark Vroman was convicted on one count of
murder with a firearm specification in Ohio state court.
Vroman appeals the district court’s dismissal of 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), 28 U.S.C. § 2244(d). For the following reasons,
we affirm the judgment of the district court.
I.
On July 28, 1995, an Ohio jury convicted Vroman of
murder with a firearm specification. He was sentenced to a
term of fifteen years to life in prison for the murder
conviction and a term of three years for the use of the firearm
to be served consecutively with and prior to the murder
sentence. Vroman appealed his conviction to the Ohio Court
of Appeals, and on June 24, 1996, the court affirmed the
judgment of the trial court. On December 18, 1996, the Ohio
Supreme Court denied Vroman’s request for leave to appeal
and dismissed the appeal as not involving any substantial
constitutional question.
On August 11, 1997, Vroman filed a delayed application
for reopening his appeal pursuant to Ohio Appellate Rule
26(B), and the application was denied as untimely. Vroman
then filed a pro se appeal of the Ohio Court of Appeals’s
decision with the Ohio Supreme Court on October 31, 1997.
The Ohio Supreme Court dismissed Vroman’s appeal.

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No. 02-3258 Vroman v. Brigano 3
Prior to the above proceedings, on or about September 24,
1996, Vroman filed a delayed petition to vacate or set aside
his sentence. The trial court denied this post-conviction
action as untimely on November 15, 1996. Vroman appealed
and on April 15, 1997, the Ohio Court of Appeals affirmed
the trial court’s judgment. On September 2, 1997, the Ohio
Supreme Court dismissed Vroman’s subsequent appeal.
Finally, on November 12, 1997, Vroman filed a motion for
relief from judgment requesting that the trial court vacate its
November 15, 1996, decision dismissing his post-conviction
action as untimely filed. On December 31, 1997, the trial
court denied Vroman’s motion. On December 10, 1998, the
Ohio Court of Appeals affirmed the judgment of the trial
court. The Ohio Supreme Court declined to hear the case and
dismissed Vroman’s appeal on April 21, 1999.
On November 23, 1999, Vroman, acting pro se, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the Southern
District of Ohio. In his habeas petition, Vroman alleged
sixteen grounds for relief. The Warden, Anthony Brigano,
moved to dismiss the petition for failing to comply with the
one-year statute of limitations imposed by 28 U.S.C.
§ 2244(d). On March 19, 2001, the district court denied the
Warden’s motion to dismiss, concluding that Vroman’s
untimely Ohio post-conviction petition tolled the running of
the statute of limitations under § 2244(d)(2). The Warden
moved for reconsideration and the district court denied the
motion. Thereafter, the Warden filed a Return of Writ, and
on December 17, 2001, the district court dismissed the
petition as time-barred due to the Sixth Circuit’s decision in
Raglin v. Randle, No. 00-3322, 2001 WL 523530 (6th Cir.
May 8, 2001). Vroman moved for reconsideration, and on
January 30, 2002, the district court denied his motion.
On February 26, 2002, Vroman filed a notice of appeal and
an application for a certificate of appealability. The district
court granted a certificate of appealability on the issues of
whether the statute of limitations expired prior to filing the
4 Vroman v. Brigano No. 02-3258
instant petition and whether Vroman is entitled to an
evidentiary hearing to present evidence that his post-
conviction action was timely filed in state court.
II.
The dismissal of a habeas petition by the district court as
barred by 28 U.S.C. § 2244’s statute of limitations is
reviewed de novo. Cook v. Stegall, 295 F.3d 517, 519 (6th
Cir.), cert. denied, 123 S.Ct. 699 (2002). Where the facts of
the case are undisputed or the district court rules as a matter
of law that equitable tolling is unavailable, this court reviews
the decision de novo. Dunlap v. United States, 250 F.3d
1001, 1007 (6th Cir. 2001).
Under AEDPA, a prisoner has one year from the
completion of the direct review of his case to commence a
collateral attack on his conviction. 28 U.S.C. § 2244(d)(1).
This one year limitation period runs from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
Id. Vroman’s conviction became final on March 18, 1997,
ninety days after the Ohio Supreme Court dismissed his direct

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No. 02-3258 Vroman v. Brigano 5
1Ohio Revised C ode § 29 53.2 3 permits the untimely filing of a
petition for post-conviction relief if (1) the petitioner was unavo idably
prevented from discovering the factual predicate of his claim, or (2) the
United States Supreme Co urt recognized a new federal or state right that
applies retroactively to persons in the petitioner’s situation and the
appeal. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.
2000). Therefore, in the absence of any tolling, Vroman had
until March 18, 1998, to file his habeas petition.
The AEDPA limitations period may be tolled for that
period of time “during which a properly filed application for
State post-conviction relief or other collateral review with
respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2) (emphasis added). “The tolling provision
does not, however, ‘revive’ the limitations period (i.e., restart
the clock at zero); it can only serve to pause a clock that has
not yet fully run. Once the limitations period is expired,
collateral petitions can no longer serve to avoid a statute of
limitations.” Rashid v. Khulmann, 991 F. Supp. 254, 259
(S.D.N.Y. 1998).
On August 11, 1997, during the relevant one-year period,
Vroman filed a delayed Ohio Appellate Rule 26(B) action and
a post-conviction petition. The petition was ultimately
dismissed by the Ohio Supreme Court on January 21, 1998.
Because Vroman filed the Rule 26(B) action 146 days after
his conviction became final, Vroman had 219 days remaining
of his AEDPA one-year statute of limitations as of
January 21, 1998. Therefore, Vroman must also receive
tolling during the time his post-conviction action remained
pending in the state courts to prevent his habeas petition, filed
on November 23, 1999, from being time barred.
Effective September 21, 1995, Ohio amended its post-
conviction statute to include a time limitation period of 180
days from the date the criminal trial transcript is filed in the
appellate court for direct review, subject to several
exceptions.1 Ohio Revised Code § 2953.23(A). Cases in
6 Vroman v. Brigano No. 02-3258
petitioner shows by clear and convincing evidence that no reasonable fact
finder would have fo und him guilty. Vroman did not argue that his post-
conviction petition fell within either of these exceptions in state court and
doe s not argue that either exception ap plies on app eal to this court.
which a sentence was imposed prior to September 21, 1995,
were given a one-year grace period, and, therefore, Vroman’s
deadline for filing any petition seeking post-conviction relief
was September 21, 1996. Ohio Revised Code
§ 2953.21(A)(2). Because that particular date fell on a
Saturday, the actual deadline was Monday, September 23,
1996. Ohio Criminal Rule 45(A).
According to the Ohio trial court, Vroman’s post-
conviction petition was filed on September 24, 1996, one day
late. The Ohio trial court concluded that Vroman’s petition
was not timely filed according to Ohio law. Vroman
appealed, arguing that his petition was timely filed because he
delivered the petition to prison authorities for mailing on
September 19, 1996, within the applicable time limit (the
“mailbox rule”). The appellate court rejected Vroman’s
argument, holding that “[a] filing is timely only if it is filed
with the court within the appropriate time limits; the jailer
does not represent the court for filing purposes.”
Vroman then moved for relief from judgment pursuant to
Ohio Civil Rule 60(B), arguing that the clerk of court actually
received his petition on September 23, 1996, and, therefore,
his petition was timely. In support of his argument, Vroman
submitted two letters he wrote to the postmaster of the post
office that delivers mail to the Ross County Clerk of Courts.
The postmaster made handwritten notes on the letters stating
that mail is delivered to the courthouse at 12:30 p.m. on a
daily basis, and that mail is never delivered prior to 9:00 a.m.
Vroman’s petition was stamped received on September 24,
1996, at 9:04 a.m. Therefore, Vroman claimed that his
petition was received by the clerk on September 23, but was

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No. 02-3258 Vroman v. Brigano 7
not stamped until September 24. The Ohio state courts
rejected Vroman’s argument.
In response to the Warden’s argument that Vroman’s
habeas petition should be dismissed as time-barred, Vroman
claimed the state courts had erroneously determined that his
post-conviction petition was untimely. The district court
deferred to the state courts’ determination that the post-
conviction petition was untimely, and, therefore, the district
court concluded that Vroman’s habeas petition was time-
barred.
On appeal, Vroman argues that the district court erred in
determining that the statute of limitations imposed by
§ 2244(d) was not tolled by his state post-conviction filing
because his post-conviction petition was timely filed with the
Ohio trial court. The United States Supreme Court has held
that an application for post-conviction relief is “properly
filed” within the meaning of § 2244(d)(2) “when its delivery
and acceptance are in compliance with the applicable laws
and rules governing filings. These usually prescribe, for
example, . . . the time limits upon its delivery.” Artuz v.
Bennett, 531 U.S. 4, 8 (2000). Similarly, this court has held
that an application for post-conviction relief is “‘properly
filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings, e.g., . . .
applicable time limits upon its delivery.” Israfil v. Russell,
276 F.3d 768, 771 (6th Cir. 2001), cert. denied, 122 S.Ct.
1985 (2002).
The timeliness of an Ohio prisoner’s post-conviction
petition is governed by state statute. Ohio Revised Code
§§ 2953.21(A)(2) & 2953.23(A). According to the Ohio
Supreme Court, a pleading is considered filed on the day it is
filed with the court. State ex rel. Tyler v. Alexander, 52 Ohio
St.3d 84 (Ohio 1990). The Ohio courts concluded that
Vroman’s post-conviction petition was not timely filed under
Ohio law. “[F]ederal courts . . . defer to a state court’s
judgment on issues of state law and, more particularly, on
8 Vroman v. Brigano No. 02-3258
issues of state procedural law.” Israfil, 276 F.3d at 771; see
also Godfrey v. Beightler, No. 02-3499, 2002 WL 31805606,
at *2 (6th Cir. Dec. 10, 2002) (stating that “federal courts
defer to the state court’s interpretation of state filing
requirements”). In Israfil, the Sixth Circuit held that
“[b]ecause state courts are the final authority on state law,
federal courts must accept a state court’s interpretation of its
statutes and its rules of practice.” 276 F.3d at 771 (citations
omitted). Therefore, the Israfil court concluded that the
district court properly deferred to the Ohio state court’s
finding as to whether the petitioner’s post-conviction motion
had been submitted according to Ohio’s timeliness
requirements. Id. at 771-72; see also Raglin, 2001 WL
523530, at *1 (holding that “untimely state collateral attacks
are not properly filed and do not toll the statute of limitations”
and therefore concluding that the petitioner’s post-conviction
petition did not toll the statute of limitations because it was
dismissed as untimely under Ohio law). Here, as in Israfil,
the district court properly concluded that Ohio’s
determination of whether Vroman’s post-conviction petition
was properly filed governs whether such action tolls the
statute of limitations under § 2244(d)(2).
Vroman contends that the Ohio state courts’ conclusion that
his post-conviction petition was untimely is incorrect and an
unreasonable determination based on the facts presented, and
argues that this court should apply the federal mailbox rule to
his post-conviction filing. This court, however, does not
function as an additional state appellate court reviewing state-
court decisions on state law or procedure. Allen v. Morris,
845 F.2d 610, 614 (6th Cir. 1988). Federal courts are
obligated to accept as valid a state court’s interpretation of
state law and rules of practice of that state. Duffell v. Dutton,
785 F.2d 131, 133 (6th Cir. 1986). In Houston v. Lack, 487
U.S. 266, 270 (1988), the United States Supreme Court
adopted the mailbox rule in holding that when a prisoner is
acting pro se, his notice of appeal is considered “filed” under
federal law when he turns the petition over to the prison
authorities for mailing. The Ohio Supreme Court has

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No. 02-3258 Vroman v. Brigano 9
expressly rejected this rule. Tyler, 52 Ohio St.3d at 85; see
also State v. Hansbro, No. 2001-CA-88, 2002 WL 1332297,
at *4 (Ohio Ct. App. June 14, 2002) (noting that Ohio courts
have “rejected a ‘prison mail rule’”). In addition, the majority
of federal circuits to consider the issue have declined to
extend the mailbox rule to the determination of filing dates
for state post-conviction applications. See Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120
S.Ct. 1564 (2000); Adams v. LeMaster, 223 F.3d 1177, 1181
(10th Cir. 2000); Webster v. Moore, 199 F.3d 1256, 1258-59
(11th Cir. 2000). But see Anthony v. Cambra, 236 F.3d 568,
575 (9th Cir. 2000) (noting that the Ninth Circuit holds that
the federal “mailbox rule applies with equal force to the filing
of state as well as federal petitions”). Accordingly, this court
will not reconsider the Ohio state courts’ determination that
Vroman’s post-conviction petition was untimely or apply the
federal mailbox rule to the present case.
In the alternative, Vroman argues that the doctrine of
equitable tolling should apply to his case. Vroman 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 of equitable tolling is applied sparingly by
federal courts. Graham-Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000).
“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 (citations omitted). The United States 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 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, the Court has “generally been
much less forgiving . . . where the claimant failed to exercise
due diligence in preserving his legal rights.” Id. “Absent
compelling equitable considerations, a court should not
10 Vroman v. Brigano No. 02-3258
2W ith regard to diligence in filing his state court post-conviction
petition, as the district court noted, three months prior to the
September 23, 199 6, deadline, an Ohio ap pellate court expressly advised
Vroman to present his claim of ineffective assistance of trial counsel in a
petition for post conviction relief. The record does not contain any
evidence providing an explanation for Vroman’s decision to delay three
months in presenting this claim to the Ohio state courts. Therefore, the
fact that Vroman waited to petition for post conviction relief three months
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). See
Dunlap v. United States, 250 F.3d 1001, 1010 (6th Cir. 2001)
(applying the five-factor test set forth in Andrews). Pursuant
to Andrews, a court should consider: (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, 495 (6th Cir. 2002).
In the present case, Vroman does not claim that he lacked
either actual or constructive notice of the filing requirement.
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. Vroman contends that he was
diligent in pursuing his rights because he claims that his post-
conviction petition was actually filed on or before the
September 23, 1996, deadline. This argument, however,
focuses on Vroman’s diligence in pursuing his rights in Ohio
state post-conviction proceedings.2 Vroman fails to address

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No. 02-3258 Vroman v. Brigano 11
after being advised to do so demonstrates a lack of diligence in pursuing
his rights.
3In support of his claim that he is entitled to equitable tolling,
Vroman relies on this court’s unpublished Rule 34(j) order in White v.
Curtis, No. 01-1493, 2002 WL 1752272 (6th Cir. July 26, 2002 ). In
White, this court held that equitable tolling app lied to the petitioner’s
federal habe as petition where the petitioner’s direct appeal to the
Michigan Supreme Court would have been timely under the federal
mailbox rule. Id. Apart from the question of whether White was co rrectly
decided, application of the Andrews factors requires an individualized
examination of each petitioner’s showing with respect to his diligence and
knowledge. W hite, whose habeas petition was filed eighteen days late,
displayed far more diligence than Vroman, who filed his habeas petition
over one year after the applicable deadline.
his lack of diligence in timely filing a petition for habeas
relief. While Vroman concentrates his argument on the fact
that at most his state filing was one day late, this court must
determine whether to equitably toll Vroman’s AEDPA statute
of limitations for more than one year.
The Ohio trial court informed Vroman on November 15,
1996, that his September 24, 1996, petition was untimely.
Therefore, when Vroman’s one-year federal habeas statute of
limitations began to run on March 17, 1997, Vroman knew
that he would not be entitled to toll the time period for his
September 24, 1996, petition unless he prevailed on appeal.
Vroman’s appeal was denied by an Ohio appellate court on
April 15, 1997, thereby informing Vroman more than eleven
months prior to his habeas filing deadline that the Ohio courts
did not consider his September 24, 1996, petition properly
filed. Vroman’s decision to proceed solely to the Ohio
Supreme Court, rather than filing his federal habeas petition
and protecting his federal constitutional rights, demonstrates
a lack of diligence.3
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
12 Vroman v. Brigano No. 02-3258
tolling is identified. Andrews, 851 F.2d at 151. The final
factor is petitioner’s reasonableness in remaining ignorant of
the legal requirement for filing his claim. Vroman does not
argue that he was ignorant of the legal requirement for filing
his claim. Accordingly, application of the five-factor test
indicates that equitable tolling is not appropriate in this case.
The district court denied Vroman’s request for an
evidentiary hearing without discussion. This court reviews a
district court’s decision whether to hold an evidentiary
hearing for an abuse of discretion. See Lott v. Coyle, 261
F.3d 594, 602 (6th Cir. 2001). Under AEDPA, evidentiary
hearings are not mandatory. Instead, AEDPA contains
express limitations on a federal court’s discretion to grant an
evidentiary hearing. The statute provides:
(e)(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim, unless the
applicant shows that –
(A) the claim relies on:
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable fact-finder would have found the
applicant guilty of the underlying offense.
28 U.S.C. § 2254(e). If the petitioner has not failed to
develop the factual basis of a claim in state court, the federal

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No. 02-3258 Vroman v. Brigano 13
court may hold a hearing if the petitioner’s factual allegations,
if proved, would entitle him to relief. See Byrd v. Collins,
209 F.3d 486, 550 (6th Cir. 2000) (citing McMillan v.
Barksdale, 823 F.2d 981, 983-84 (6th Cir. 1987)); Rector v.
Johnson, 120 F.3d 551, 562-63 (5th Cir. 1997) (“[A] federal
habeas court must allow discovery and an evidentiary hearing
only where a factual dispute, if resolved in the petitioner’s
favor, would entitle him to relief and the state has not
afforded the petitioner a full and fair evidentiary hearing.”).
AEDPA addresses state prisoners’ federal constitutional
claims. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.
1999). Therefore, any reference to a “claim” in AEDPA is to
a federal constitutional claim. AEDPA thus permits
evidentiary hearings regarding federal constitutional claims
under limited circumstances as set forth in the statute. While
Vroman’s habeas petition sets forth federal constitutional
claims, he seeks an evidentiary hearing on a state procedural
law issue. Specifically, he requests that the district court
allow him to submit evidence to conclusively prove the state
court ruling that his post-conviction petition was untimely
was unreasonable in light of the facts presented to it. Vroman
does not request an evidentiary hearing to allow him to
present evidence regarding a federal constitutional claim.
Instead, Vroman seeks to revisit the Ohio state courts’
determination that he failed to comply with Ohio law
regarding time limits for filing a post-conviction petition. As
previously discussed, state courts are the final authority on
state law and federal courts must accept a state court’s
interpretation of its rules of practice. Israfil, 276 F.3d at 771.
Accordingly, the district court did not abuse its discretion in
denying Vroman’s request for an evidentiary hearing.
III.
For all of the foregoing reasons, we affirm the district
court’s dismissal of the petition.

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