Jason Jagodka v. Blaine Lafler

*The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0627n.06
Filed: July 27, 2005
No. 04-1345
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JASON JAGODKA,
Petitioner-Appellant,
v.
BLAINE LAFLER,
Respondent-Appellee.
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
Before: SILER and DAUGHTREY, Circuit Judges; and MARBLEY, District Judge.*
PER CURIAM. Petitioner Jason Jagodka appeals the district court’s denial of his petition
for a writ of habeas corpus. The issue certified for appeal by the district court is whether Jagodka’s
petition was timely in light of the one-year statute of limitations in the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244(d)(1). We affirm.
BACKGROUND
Jagodka is a Michigan prisoner serving sentences of 25 to 50 years for second degree
murder, and two years for possession of a firearm while in the commission of a felony. He pleaded
no contest to the charges in 1996 and, although he was 16, was sentenced as an adult. The
convictions were finalized on November 14, 1997, one year after sentencing, when the time limit

-- 1 of 5 --

No. 04-1345
Jagodka v. Lafler
- 2 -
for filing a direct appeal in state court expired. See 28 U.S.C. § 2244(d)(1)(A); M.C.R. 7.205(F)(3).
Jagodka did not seek either direct review of his conviction or collateral attack at the state level
before his conviction was finalized.
In 2001, Jagodka filed a motion for relief from judgment in Monroe County Circuit Court.
In denying this motion, the court found that Jagodka had not met his burden of establishing
entitlement to the relief requested, as set forth in M.C.R 6.508(D)(3), which precludes the court from
granting relief to the defendant if “the motion . . . alleges grounds for relief . . . which could have
been raised on appeal from the conviction and sentence.” Id. An exception exists if the defendant
can demonstrate “good cause for failure to raise such grounds on appeal,” but the court concluded
that Jagodka had not met this burden. Jagodka then filed a motion for leave to appeal in the
Michigan Court of Appeals, which was denied in 2002. Similarly, the Michigan Supreme Court
denied Jagodka’s delayed application for leave to appeal in February 2003, stating only that he had
“failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” His motion
for reconsideration was denied in May 2003.
Jagodka filed this petition for a writ of habeas corpus on June 12, 2003, alleging that he was
denied effective assistance of counsel at trial and that his sentence was disproportionately harsh.
He concedes that his petition was untimely; however, he maintains that he did not file the necessary
state appeals because he lacked appellate counsel until 2001, when his grandparents obtained legal
representation for him. The district court granted the respondent Lafler’s motion for summary
judgment, dismissing the petition with prejudice as untimely. The district court then granted

-- 2 of 5 --

No. 04-1345
Jagodka v. Lafler
- 3 -
Jagodka a Certificate of Appealability only on the issue of whether his habeas petition was timely
filed.
DISCUSSION
Federal courts grant equitable tolling sparingly, and the burden is on the petitioner to show
that it is warranted. Griffin v. Rogers, 399 F.3d 626, 635 (6th Cir. 2002) (citing Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990)). We review a district court’s decision to refuse equitable
tolling de novo. Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001).
The one-year limitation period prescribed by AEDPA for habeas actions is a statute of
limitation, not a jurisdictional limitation, and therefore is subject to equitable tolling. Id. at 1007.
To decide whether equitable tolling applies, this court weighs the following five factors: “(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. at1008 (citing Andrews v. Orr, 851 F.2d 146, 151 (6th
Cir.1988)). These factors are not necessarily comprehensive and are not relevant in all cases. Cook
v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).
For brevity, the Andrews factors are combined for analysis. Merging the first, second and
fifth factors, Jagodka argues that he lacked actual and constructive knowledge of the § 2244(d) filing
requirement because he was only 16 years old at the time he pleaded no contest, a probation officer
found him to be relatively immature for his age, and he was sentenced only six months after AEDPA

-- 3 of 5 --

No. 04-1345
Jagodka v. Lafler
- 4 -
became effective. However, Jagodka failed to allege any material impediment to his filing a timely
application.
Jagodka argues that he was too young and immature to understand his rights, disregarding
the findings of fact made at sentencing regarding his maturity and age. We have, in an unpublished
opinion, implicitly rejected this argument. See Starnes v. United States, No. 99-5144, 18 Fed. Appx.
288, 293 (6th Cir. Aug. 22, 2001) (noting that “courts are reluctant to find that a lack of actual notice
of the AEDPA, or ignorance of the law in general, may excuse a late filing.”). Additionally,
although Jagodka asserts that his untimeliness should be excused because only six months passed
between his sentencing and AEDPA’s effective date, this argument is misleading. He had two years
from his sentencing–not six months–to file a timely habeas petition. He was sentenced on
November 14, 1996, and the habeas statute of limitations expired on November 14, 1998. AEDPA
had long been in effect by the time his habeas petition was due.
The third factor to consider is the degree of diligence exhibited by the petitioner in pursuing
his rights. Jagodka delayed from 1996 until 2001 to begin the necessary state appeals. He attempts
to excuse this inactivity by arguing that his grandparents could not afford legal counsel for him
during that time. However unfortunate, this is no excuse, as no constitutional right to an attorney
in state post-conviction proceedings exists. Coleman v. Thompson, 501 U.S. 722, 757 (1991).
Additionally, Jagodka has offered no evidence that he pursued his rights in any way between
sentencing and the filing of this petition – even using appellate counsel the state court offered to
appoint for the purposes of direct review. Because Jagodka was not wrongfully deprived of
appellate counsel, no adequate justification exists for his delay.

-- 4 of 5 --

No. 04-1345
Jagodka v. Lafler
- 5 -
The fourth and final prong, prejudice to respondent, need not be reached “unless the other
factors of the test are met.” See Dunlap, 250 F.3d at 1009. In light of the Andrews factors, Jagodka
has not met his burden to demonstrate entitlement to equitable tolling of the statute of limitations.
AFFIRMED.

-- 5 of 5 --