Cleveland v. Bradshaw (760 F. Supp. 2d 751, 2011)

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

Introduction

This matter comes before the Court on Petitioner Alfred Cleveland’s Petition for Writ of Habeas Corpus (Doc. No. 1). Respondent Margaret Bradshaw, Warden of the Richland Correctional Institution, filed a Motion to Dismiss the Petition as untimely (Doc. No. 10). Petitioner opposed (Doc. No. 13). This Court has jurisdiction under 28 U.S.C. § 2254(a).

The case was referred to Magistrate Judge McHargh for a Report and Recommendation (“R & R”) pursuant to Local Rule 72.2. The Magistrate recommended this Court deny the Petition (Doc. No. 15); Petitioner filed an Objection (Doc. No. 18); and Respondent filed a Response (Doc. No. 19). Pursuant to Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) and 28 U.S.C. § 636(b)(1)(B) & (C), this Court has made a de novo determination of the Magistrate’s findings and adopts the recommendation to deny the Petition.

Background

The R & R accurately recites the relevant factual and procedural background from the record, and this Court adopts them in their entirety (Doc. No. 15, at 2-12). Briefly, Marsha Blakely was murdered in 1991. A witness to the murder eventually came forward, implicating Petitioner and several other men. Petitioner was indicted and, in 1996, convicted of Blakely’s murder. State v. Cleveland, No. 96CA006357, 1997 WL 104653, at *1 (Ohio Ct.App.1997). Petitioner appealed his conviction, which was affirmed by the Ohio court of appeals. A further appeal to the Ohio Supreme Court was denied as not involving any substantial constitutional question. While this direct appeal was pending, Petitioner’s motion for a new trial filed with the trial court was also denied and was affirmed on appeal.

Almost ten years later, Petitioner filed for post-conviction relief and a new trial, based in part on the allegedly recanted testimony of State witness William Avery, Jr. The trial court set the matter for hearing to consider the testimony of Avery. At the hearing, the State declined to grant Avery immunity from prosecution for perjury and Avery refused to testify after invoking his rights under the Fifth Amendment. The trial court denied the motion for a new trial and for post-conviction relief.

Petitioner appealed the denial to the Ohio court of appeals, which affirmed, and to the Ohio Supreme Court, which denied review. Thereafter, he filed this Petition for Writ of Habeas Corpus.

Standard of Review

When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” A federal court may grant habeas relief if the state court arrives at a decision opposite to that reached by the Supreme Court of the United States on a question of law, or if the state court decides a case differently than did the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate measure of whether or not a state court decision unreasonably applied clearly established federal law is whether that state adjudication was “objectively unreasonable,” and not merely erroneous or incorrect. Williams, 529 U.S. at 409-411, 120 S.Ct. 1495; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir.2000).

Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are presumed correct, and rebuttable only by clear and convincing evidence to the contrary. McAdoo v. Elo, 365 F.3d 487, 493-494 (6th Cir.2004). Furthermore, “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).

Discussion

The Magistrate recommended dismissing the Petition as time-barred. Specifically, the Magistrate determined that the one-year statute of limitations expired in May 1999 and that Petitioner is not entitled to a later start date under Section 2244(d)(1)(D) because the factual predicate upon which his claim is based—Avery’s recantation and other evidence—could have been discovered at the time of the trial. Furthermore, the Magistrate found that Petitioner was not entitled to equitable tolling because he did not present any new, reliable evidence to establish a credible claim of actual innocence.

Petitioner now argues the Magistrate erred in the following four ways when he: (1) improperly assessed the reliability of Avery’s 2006 recantation; (2) improperly concluded that the 2006 recantation, as well as additional pieces of evidence, were not new; (3) did not apply the proper probabilistic standard under Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); and (4) did not consider the 2006 recantation in light of all the evidence (Doc. No. 18, at 3-4). Each objection will be addressed in turn.

Avery’s Recantation

Actual innocence equitably tolls the limitations period for filing a habeas petition. Under the standard set forth is Schlwp, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. In determining whether a petitioner has met this standard, a court must consider all the evidence, without regard to its admissibility. House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). “Based on this total record, the court must make ‘a probabilistic determination about what reasonable, properly instructed jurors would do.’ ” Id. (quoting Schlup, 513 U.S. at 329, 115 S.Ct. 851). Therefore, to be entitled to equitable tolling, it is Petitioner’s burden to demonstrate that his is “one of those extraordinary cases where a credible claim of actual innocence has been established by new evidence.” McSwain v. Davis, 287 Fed.Appx. 450, 461 (6th Cir. 2008).

Petitioner must support his claim “with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. Accordingly, “the habeas court must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record.” Doe v. Menefee, 391 F.3d 147, 161 (2d Cir.2004).

Petitioner argues that, contrary to the Magistrate’s conclusion, Avery’s 2006 recantation is reliable because “(1) it was the first time Avery fully explained the reasons behind his changing stories; (2) it was motivated by nothing more than an attempt to clear his conscience; and (3) its veracity was supported by Avery’s behavior afterward” (Doc. No. 18, at 6). This Court is not persuaded.

The record reflects a history of Avery recanting his testimony. The Ohio court of appeals noted at the trial of Lenworth Edwards, a co-defendant convicted of Blakely’s murder, that Avery took the stand but refused to testify. State v. Edwards, No. 92 CA005345, 1992 WL 380611, at *1, 1992 Ohio App. LEXIS 6394, at *2 (Ohio Ct.App.1992). The trial court held him in contempt and ordered that he be incarcerated until he agreed to testify. When Avery returned, he testified that he had lied to the police, recanting his inculpatory statements. The trial court granted Edwards’ motion for a mistrial.

At Edwards’ second trial, Avery testified that his original statements implicating Edwards were in fact true. He then proceeded to testify as to Edwards’ role in the assault and murder of Blakely. Avery explained that the reason he perjured himself during the first trial was that he had been threatened while in the county jail. Avery also testified during Petitioner’s trial that he recanted his testimony given in Edwards’ first trial because he felt threatened (Doc. No. 10-5, at 373).

In 2006, Avery once again recanted his initial story given to police. Although Avery attempted to explain the reason for this most recent recantation, that explanation is not internally consistent. According to his affidavit, Avery lied during Petitioner’s trial because Avery’s own father threatened him (Doc. No. 10-2, at 5-6). However, the affidavit also states that on the night of Blakely’s murder, Avery’s father came to Avery and told him that Blakely was dead and that Avery was also going to be killed, so Avery’s father allegedly attempted to get Avery “out of it” by setting up a meeting with police and instructing Avery to fabricate a story implicating Petitioner in the murder. Id. at 4. Avery asserts that he first resisted, but then capitulated after his father threatened to kill him and his family. Therefore, according to Avery’s affidavit, Avery’s father created a story to help his son avoid being killed by the people he believed actually killed Blakely, but his father would nonetheless kill Avery and his family if Avery refused to lie.

But wait, there’s more. Avery also claims he—not his father'—“made up the story of what happened ... based upon the pictures” he was shown while being questioned by police. Id. at 3. This too is contradicted by the record. The “Detective Bureau Report” indicates that Avery was initially interviewed by police on September 11, 1991 and was able to provide information about the crime scene in that initial interview (Doc. No. 11-1, at 155, 157). Avery’s description of the crime scene was then corroborated by photos taken of the sealed apartment on September 18, 1991. Id. Furthermore, at Petitioner’s trial in 1996, Detective Taliano testified that he never showed Avery any photographs of the crime scene during their initial interview, but Avery was still able to provide details about the crime scene that only could have been known by someone present during the murder (Doc. No. 10-4, at 210-11).

The report also indicates that Avery told police that, while in Blakely’s apartment on the day of the murder, Petitioner witnessed Blakely strike Edwards in the face (Doc. No. 11-1, at 155, 157). The police recovered a jacket with blood on the front that Edwards admitted wearing on the night of Blakely’s murder. The blood was identified as belonging to Edwards. The blood on this jacket helped verify Petitioner’s recount of the events surrounding Blakely’s murder shortly after it occurred.

Avery was also subject to cross-examination regarding many of the issues presented here (Doc. No. 10-5, at 334-379). As the Ohio court of appeals noted: “Avery gave consistent lengthy testimony, subject to vigorous cross-examination” in the other Blakely trials before recanting his testimony (Doc. No. 10-4, at 210). On the other hand, Avery’s 2006 recantation was not subject to cross-examination and only consisted of an interview conducted in the presence of a court reporter.

Petitioner argues that Avery’s assertion of his Fifth Amendment rights and refusal to testify at a hearing following his 2006 recantation demonstrates that his recantation is credible and his trial testimony is not. While this may be one inference, it is just as likely that Avery’s refusal to disclose at trial the facts set forth in his affidavit demonstrates his trial testimony was truthful and his recantation false.

This Court does not agree that “the only reasonable conclusion is that the 2006 recantation is credible” (Doc. No. 18, at 6). Given all the evidence, including the facts discussed above, and Petitioner’s history of repeatedly changing his story, Petitioner has not demonstrated that Avery’s recantation is sufficiently reliable to warrant equitable tolling under the Schlup actual innocence standard.

Nothing New

Petitioner must demonstrate that his proffered evidence is not only reliable, but is also “new.” See Schlup, 513 U.S. at 324, 115 S.Ct. 851. Petitioner argues the Magistrate improperly concluded that Avery’s recantation and other pieces of evidence were not new because, for purposes of the Schlup analysis, “new” does not mean “newly discovered,” but rather “not presented to the jury” (Doc. No. 18, at 9). Respondent counters that Petitioner’s evidence is not new because it was available to him at the time of his trial (Doc. No. 14, at 9). Petitioner acknowledges that there is no Sixth Circuit case definitively resolving the distinction, and instead relies on cases from other circuits (Doc. No. 18, at 9-10); see Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir.2003); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.2003).

Although there is conflicting authority on this issue, district courts in this Circuit have held that “new” evidence means “newly discovered” evidence—that is, evidence unavailable to the petitioner at the time of trial—rather than evidence that was simply not presented to a jury. See, e.g., Taylor v. Woods, No. 2:09-CV-00189, 2010 WL 502714, at *3, 2010 U.S. Dist. LEXIS 20420, at *7 (W.D.Mich.2010); Rickard v. Wolfe, No. 3:06-CV-2753, 2007 WL 4526522, 2007 U.S. Dist. LEXIS 92447 (N.D.Ohio 2007); Leggett v. U.S., Nos. 1:05-CV-732, 1:92-CR-233, 2006 WL 3091316, at *2, 2006 U.S. Dist. LEXIS 78436, at *5-6 (N.D.Ohio 2006). Moreover, an unpublished opinion by the Sixth Circuit suggests it has the same understanding of the term. See Connolly v. Howes, 304 Fed.Appx. 412, 418 (6th Cir. 2008) (“Because all of this evidence was available to Connolly when he pled on June 27, 1994 and would have been available to him at trial, none of it is ‘new.’ ”) (citing Souter, 395 F.3d at 590). This Court agrees with this interpretation and, accordingly, Petitioner’s evidence is “new” only if it was unavailable to him at the time of trial.

The Magistrate’s analysis on this point is well-reasoned. The evidence Petitioner argues is “new” was available at the time of trial (Doc. No. 18, at 10). The inconsistencies between Avery’s trial testimony and his deposition testimony given shortly after Blakely’s murder were raised at Petitioner’s trial (Doc. No. 10-5, at 334-342). And, during cross-examination by Petitioner’s counsel, Avery admitted to recanting his story during Edwards’ trial (Doc. No. 10-5, at 373).

Furthermore, most of the evidence Petitioner offers was presented to the jury, albeit in different form. For example, the 1991 flight and probation records were available at the time of trial, though not presented to the jury. However, Petitioner presented alibi testimony at the trial suggesting he was in New York on the day of the murder and that he could not have flown back from New York in time to commit the murder (Doc. No. 10-6, at 74-86). Many of the sworn affidavits submitted by Petitioner are from individuals claiming that Petitioner was in New York on the date of the murder. Again, there was testimony to this effect presented at trial and these statements do not constitute new evidence because they could have been discovered at the time of trial. This evidence is merely cumulative. The R & R also discusses why these statements are also unreliable (Doc. No. 15, at 35-36).

The only piece of evidence that could conceivably be considered new is the affidavit of forensic scientist Larry Dehus linking the murders of Floyd Epps and Marsha Blakely. However, as the Magistrate pointed out, this does not demonstrate Petitioner’s actual innocence. It is possible he was involved in one murder without being involved in the other and does not, in light of all the other evidence, demonstrate that “no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327, 115 S.Ct. 851.

Veracity is Unsupported

Next, Petitioner argues the Magistrate did not apply the proper probabilistic analysis required by Schlup. Specifically, Petitioner states that instead of determining what a reasonable juror would have concluded based upon the new evidence, the Magistrate determined what a reasonable juror could have concluded (Doc. No. 18, at 11-12). This argument is unconvincing.

As Petitioner acknowledges, the Magistrate identified the correct standard (Doc. No. 15, at 24): “To establish actual innocence, ‘a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’ ” Souter, 395 F.3d at 590 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). Petitioner has simply isolated one statement from the R & R and concluded from it the Magistrate did not apply the standard set forth in Schlup and Souter. However, reading the R & R as a whole, it is clear the Magistrate properly determined, based on all the evidence, that Petitioner failed to show that “no reasonable juror would have found [him] guilty beyond a reasonable doubt.” As discussed above, Petitioner’s evidence was neither reliable nor new.

Entire Record

Finally, Petitioner argues the Magistrate failed to consider Avery’s recantation in light of all the evidence, but instead analyzed each piece of evidence independently (Doc. No. 18, at 15-17). The Court finds Petitioner’s objection without merit. First, the R & R demonstrates that, contrary to Petitioner’s assertions, the Magistrate did consider Avery’s recantation in light of all the evidence. The R & R states: “After reviewing Avery’s recantation on its own and in light of the preexisting evidence in the record> the court does not find the recantation to be ‘new evidence’ sufficiently reliable or trustworthy to support applying equitable tolling” (Doc. No. 15, at 31).

Second, the R & R discusses the weakness of each piece of Petitioner’s proffered evidence. Petitioner’s evidence is neither new, because it was already presented in some form to the jury during Petitioner’s trial, nor reliable. Petitioner acknowledges that “none of the evidence, taken alone, conclusively establishes [Petitioner’s] innocence ...,” but nonetheless suggests that all the pieces together conclusively demonstrate Petitioner is actually innocent. However, Petitioner’s inferential chain is only as strong as its weakest link. Here, all of Petitioner’s evidence is weak and simply adding up these many weak inferences does not establish that any reasonable juror would find Petitioner innocent.

Conclusion

After conducting a de novo review, Petitioner’s objections are not well taken. Accordingly, this Court adopts the recommendations of the Magistrate and the Petition for Writ of Habeas Corpus is dismissed.

Furthermore, this Court declines to issue a certificate of appealability. “To obtain a certificate of appealability, a prisoner must ‘demonstrate] that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’ ” Banks v. Dretke, 540 U.S. 668, 705, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Petitioner has failed to meet this standard. Even if this Court assumes Petitioner’s proffered evidence qualifies as “new” under the standard of other circuits, he did not demonstrate it is also reliable, and therefore he is not entitled to equitable tolling of the statute of limitations.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

McHARGH, United States Magistrate Judge.

The petitioner Albert Cleveland (“Cleveland”) has filed a petition pro se for a writ of habeas corpus, arising out of his 1996 jury conviction for aggravated murder in the Lorain County (Ohio) Court of Common Pleas. In his petition, Cleveland raises six grounds for relief:

1. Alfred Cleveland is actually innocent of Marsha Blakely’s murder. His conviction violates the U.S. Constitution. U.S. Const. Amend. V, VIII, XIV.

2. Alfred Cleveland’s due process rights were violated because the State presented testimony at trial that it knew or should have known was false in violation of the United States Constitution. U.S. Const. Amend. XIV; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

3. The State violated Alfred Cleveland’s due process rights when it failed to disclose favorable evidence. U.S. Const. Amend. V, XIV; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

4. Afred Cleveland’s substantive and procedural due process rights to a fair trial were violated because the prosecutor committed acts of misconduct during the trial. U.S. Const. VIII, XIV; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

5. Afred Cleveland was prejudiced by his trial counsel’s deficient performance. U.S. Const. Amends. VI and XIV; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

6. Afred Cleveland’s due process rights were violated because appellate counsel failed to render effective assistance in his first appeal of right. U.S. Const. Amend. XIV.

(Doc. 1, § 12.a.)

I. FACTUAL AND PROCEDURAL BACKGROUND

The Ohio Court of Appeals set forth the following factual and procedural background:

Marsha Blakely’s body was discovered in an alley in Lorain during the summer of 1991. She had fractured ribs and a broken neck. Her throat had also been cut, and she had torture-type wounds on the side of her neck and head. A witness to the murder eventually came forward, describing in detail the events of that fateful night. The witness’ statement implicated the group of men responsible, one of whom was Defendant. Defendant was indicted for the aggravated murder of Ms. Blakely. He was arrested and arraigned in May of 1995. The prosecution filed its discovery that same month. A jury trial was set for August, but was later continued until January.

In September, the defense filed a motion to compel discovery of certain enumerated items. The trial court initially granted the motion, but later reconsidered its decision upon the motion of the prosecution and after conducting a hearing. At the hearing on the discovery matter, defense counsel withdrew some of her requests and agreed to resubmit an appropriate evidentiary list. The list was submitted on January 22, 1996, the day before trial. Included on the list was a videotape of the crime scene and photographs of the apartment where the victim had allegedly been beaten prior to her ultimate demise.

On the morning of trial, the court held another discovery hearing. The prosecutor stated that he had just received the list, and averred that the videotape was not in the courthouse. It was agreed, however, that the videotape would be provided to the defense for viewing that evening. No mention was made of the photographs.

Trial began as scheduled. It lasted six days, and included the foregoing witness’ testimony explaining Defendant’s participation in the death of Ms. Blakely. The defense began presenting evidence on the third day of trial. Defense counsel never sought to introduce the videotape which she had watched at the conclusion of the first day. The jury, nevertheless, had the opportunity to view the tape through its admission by the prosecution. Ater two days of deliberations, Defendant was found guilty as charged in the indictment.

(Doc. 10, RX 8, at 1-3; State v. Cleveland, No. 96CA006357, 1997 WL 104653, at *1 (Ohio Ct.App. Mar. 5, 1997).)

A. Direct Appeal

Cleveland filed a timely appeal of his conviction, and set forth the following four assignments of error:

1. The trial court erred by not compelling the State of Ohio to provide the defense with discoverable and exculpatory evidence in a timely manner.

2. The court erred when it failed to declare a mistrial and strike from the record improper statements which referenced Mr. Cleveland’s prior criminal record, illieited [sic] by the state upon direct examination of it’s [sic] witnesses.

3. The judgment and conviction below should be reversed due to blatant prosecutorial misconduct based upon the state withholding exculpatory evidence essential to the defendant’s case and the improper demeanor of the prosecutor.

4. The defendant’s conviction for aggravated murder was against the manifest weight of the evidence presented during trial.

(Doc. 10, RX 6.) On March 5, 1997, the court of appeals affirmed the judgment of the trial court. (Doc. 10, RX 8; State v. Cleveland, No. 96CA006357, 1997 WL 104653, at *1 (Ohio Ct.App. Mar. 5, 1997).)

Cleveland filed a motion for leave to file a delayed appeal to the Supreme Court of Ohio on May 9, 1997, which would have set forth the following four propositions of law:

1. The trial court erred and abused its discretion, to the prejudice of appellant, by failing to compel the State of Ohio to provide the defense with discoverable and exculpatory evidence in a timely manner, which deprived the appellant the right to a fundamental fair trial, and violated his rights protected by the Due Process Clause of the Fifth and Fourteenth Amendments] to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

2. The trial court erred and abused its discretion, to the prejudice of appellant, by failing to declare a mistrial and strike from the record improper statements which referenced appellant’s prior criminal record, illieited [sic] by the state upon direct examination, which deprived appellant the right to a fundamental fair trial, and violated appellant’s rights protected by the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

3. Appellant was denied the right to a fundamental fair trial due to prosecutorial misconduct based upon the state withholding exculpatory evidence essential to the appellant’s case and the improper demeanor of the prosecutor, which violated appellant’s rights protected by the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

4. The defendant’s conviction for aggravated murder was against the manifest weight of the evidence presented during trial, which violated appellant’s rights protected by the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

(Doc. 10, RX 9.) On July 2, 1997, the state supreme court denied leave to file a delayed appeal. (Doc. 10, RX 10; State v. Cleveland, 79 Ohio St.3d 1448, 680 N.E.2d 1021 (1997).)

B. Delayed Rule 26(B) Application

On July 14, 1997, Cleveland filed a delayed application pro se to reopen his appeal, pursuant to Ohio App. Rule 26(B). The application was based on ineffective assistance of appellate counsel on three grounds:

1. Appellant was denied the effective assistance of appellate counsel by appellant counsel’s failure to raise the issue that she, as trial counsel prejudicially deprived appellant of his right to a speedy trial, once appellant had demanded a speedy trial and the trial court had set the trial date to comply with the speedy trial provisions.

2. Appellant was denied his constitutional right to a fair trial due to prosecutorial misconduct in that during trial the prosecutor falsely accused appellant of other criminal acts, having full knowledge that the accusations were untrue, and that such accusations would prejudice the jury.

3. Appellant’s conviction for aggravated murder was against the manifest weight of the evidence presented during trial.

(Doc. 10, RX 11.) The court of appeals found his application to be barred as untimely. (Doc. 10, RX 12.)

Cleveland filed a timely appeal to the Supreme Court of Ohio on Sept. 8, 1997, which set forth the following three propositions of law:

1. Where trial counsel and appellate counsel are the same and appellate counsel fails to raise on appeal the fact that while acting as trial counsel she prejudicially deprived Appellant of his right to a speedy trial, the Appellant is denied the effective assistance of appellate counsel.

2. A defendant is denied his constitutional right to a fair trial, where the prosecutor during trial falsely accuses the defendant of other criminal acts the prosecutor knows to be false.

3. Where on direct appeal appellate counsel raises the claim that the Appellant’s conviction was against the manifest weight of the evidence and appellate counsel fails to order the entire record, and a crucial part of the record is missing from the record on appeal, the Appellant has been denied the effective assistance of appellate counsel.

(Doc. 10, RX 14.)

On Nov. 12, 1997, the state supreme court denied leave to appeal and dismissed the case because it did not involve any substantial constitutional question. (Doc. 10, RX 15) State v. Cleveland, 80 Ohio St.3d 1447, 686 N.E.2d 274 (1997).)

C. Motion for New Trial

On Dec. 3, 1996, while his direct appeal was pending, Cleveland filed a motion for a new trial under Ohio Cr. Rule 33(A)(6), and a motion for leave to file a delayed motion for same. (Doc. 10, RX 16-17.) In his motion for a new trial, Cleveland indicates that he would offer evidence as outlined in the affidavit of Jerimah Abdullah (formerly, Jeremiah A. Charlton). (RX 16, at 4.) In his affidavit, Abdullah presents a lengthy narrative of his version of the events of the day Blakely was murdered, and his opinion that Cleveland was not the murderer. (RX 16, exh. A, Abdullah aff.)

The state responded that the court should treat his motion as a petition for post-conviction relief, and set the matter for a hearing, noting that Abdullah’s trial testimony, as well a former statement, contradicted his affidavit. (Doc. 10, RX 18.)

The court held a hearing on the motion on June 9, 1997, but denied the motion “as defendant failed to produce evidence” at the hearing in support of his motion. (Doc. 10, RX 19.)

Cleveland filed an appeal on July 8, 1997, set forth two assignments of error:

1. The Appellant was denied procedural due process and the trial court abused its discretion and erred to the prejudice of Appellant when it denied Appellant’s motion for a new trial filed pursuant to Cr. Rule 33(A)(6).

2. A defendant is deprived of his constitutional right to due process of law and Ms right to a fair trial when the prosecution withholds from the defense favorable evidence that is material to the outcome of the trial.

(Doc. 10, RX 21.) The court of appeals affirmed the judgment of the trial court, noting that:

The record does not contain a transcript of the hearing on Cleveland’s motion for a new trial. Thus, there is nothing in the record to contradict the trial court’s conclusion that Cleveland failed to produce evidence at the hearing. Additionally, the prosecution claims, and Cleveland does not dispute, that no evidence was offered at this hearing.

(Doc. 10, RX 24, at 2-3; State v. Cleveland, No. 97CA006840, 1998 WL 162855, at *1 (Ohio Ct.App. Apr. 8, 1998).)

D. Petition for Post-Conviction Relief

Almost ten years later, Cleveland filed a petition for post-conviction relief, pursuant to Ohio Rev.Code § 2953.21, with the trial court on July 6, 2006. The petition was based on six grounds:

1. Freestanding actual innocence mandating relief under the Federal Constitution and the Ohio Constitution.

2. Use of testimony at trial which the State knew or should have known to be false in violation of the Federal Constitution and the Ohio Constitution.

3. Suppression of favorable evidence in violation of the Federal Constitution and the Ohio Constitution.

4. Prosecutorial misconduct.

5. Ineffective assistance of counsel in violation of the Federal Constitution and the Ohio Constitution.

6. Violations of the Confrontation Clause mandating relief pursuant to the retroactive application of Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.

(Doc. 10, RX 25, 28.) At the same time, Cleveland filed a motion to hold Ohio Rev. Code § 2953.23 unconstitutional (doc. 10, RX 29 ), and a motion for leave to depose William Avery, Jr. (“Avery”) (doc. 10, RX 30). Cleveland subsequently withdrew the sixth ground of the petition for post-conviction relief. (Doc. 10, RX 38.)

The trial court denied in part, and granted in part, his petition for post-conviction relief. The court set a hearing for Jan. 31, 2008, to consider the testimony of Avery. (Doc. 10, RX 39-40.) The court denied the motion to hold Sect. 2953.23 unconstitutional. (Doc. 10, RX 41.) On the date at which the hearing was to take place, the court entered the following journal entry, in part:

The Court had previously limited its consideration ... to a sole ground/claim, that involving the allegedly recanted testimony of the State’s witness, William M. Avery, Jr.

When called as a witness by the Defendant/Petitioner Mr. Avery, after lengthy consideration and consultation with court-appointed counsel, chose to invoke his rights pursuant to the Fifth Amendment ... and did not testify. No other witnesses were called.

(Doc. 10, RX 42; see also RX 49, transcript of hrg.) The parties were granted the opportunity to provide the court with memoranda in support of their positions. Id. Both sides filed memoranda with supporting exhibits. (Doc. 10, RX 43-45.) In addition, Cleveland filed a motion to reopen the hearing. (Doc. 10, RX 46.)

On April 25, 2008, the trial court denied the motion for new trial and petition for post-conviction relief, as well as the motion to reopen the hearing. (Doc. 10, RX 50.) Cleveland appealed this determination. (Doc. 51-52.)

On appeal, Cleveland raised nine assignments of error:

1. The Trial Court erred in hold that claims of freestanding actual innocence are not a cognizable ground for relief under the Federal Constitution and the Ohio Constitution.

2. The Trial Court erred in dismissing Petitioner’s claims for post-conviction relief when Petitioner had satisfied the jurisdictional requirements of Ohio Rev. Code § 2953.23.

3. The Trial Court erred in overruling Petitioner’s motion to hold Ohio Rev. Code § 2953.23 unconstitutional.

4. Petitioner’s rights under the Ohio Constitution and the Federal Constitution to compulsory process, due process of law and due course of law were violated when the prosecution deliberately interfered with the decision of a defense witness to testify.

5. The Trial Court erred in advising William Avery Jr. that he could be subject to criminal liability for perjury, and in permitting Avery Jr. to invoke his right against self-incrimination, when the statute of limitations for the perjury offenses in question had expired.

6. The trial court erred in denying Petitioner’s motion to reopen the evidentiary hearing.

7. Petitioner’s rights under the Ohio Constitution and the Federal Constitution to compulsory process, due process of law and due course of law were violated when the Trial Court questioned William Avery Jr. in an impermissibly coercive manner.

8. The Trial Court erred in denying Petitioner’s motion for leave to bring a motion for new trial with regard to various claims.

9. The Trial Court erred in denying Petitioner’s motion for a new trial.

(Doc. 10, RX 52.) The court of appeals affirmed the judgment of the trial court on Feb. 2, 2009. (Doc. 10, RX 55; State v. Cleveland, No. 08CA009406, 2009 WL 224505 (Ohio Ct.App. Feb. 2, 2009).)

As to Avery, the court of appeals stated the following:

The only evidence of Avery’s recantation is in his affidavit and “deposition.” Consequently, his “recantation” was never subject to cross-examination. Further, when given the opportunity in court, Avery was unwilling to take the witness stand to testify under oath to statements he made in his affidavit. Instead, Avery asserted his Fifth Amendment right not to incriminate himself. The trial court viewed Avery’s affidavit and “deposition” with “the utmost suspicion” and reasonably inferred that the statement contained in the affidavit and/or “deposition” were untrue and that Avery sworn trial testimony was true.

Avery gave consistent lengthy testimony, subject to vigorous cross-examination, in the five Blakely trials before recanting several years later. A careful review of the affidavit and deposition reveals inconsistencies regarding Avery’s explanation of his trial testimony. Avery avers that the trial testimony was based on a story fabricated by his father while also contending that he created his version of the murder after viewing crime scene photos supplied to him by law enforcement officials. These inconsistencies provide yet another basis for the trial court to believe Avery’s trial testimony and disbelieve his recantations.

Furthermore, Detective Taliano’s affidavit further negates the credibility of Avery’s contention that he was only able to describe the crime scene after law enforcement officials showed him photographs. Detective Taliano specifically testified that in his initial meeting with Avery, Avery was able to relate specific details of the crime scene that he could only have known had he been present during the murder. Detective Taliano swore that he never showed Avery any crime scene photos.

In addition, we are mindful that we must give deference to the trial court’s assessment of Avery’s credibility. Upon its review of Avery’s testimony in the five previous trials, his affidavit and “deposition,” the trial court determined that Avery’s recantation was false.

(Doc. 10, BX 55, at 26-27 (citations omitted); Cleveland, 2009 WL 224505, at *15-*16.)

Cleveland appealed to the Supreme Court of Ohio, setting forth seven propositions of law:

1. Freestanding claims of actual innocence are cognizable under the Federal Constitution and the Ohio Constitution.

2. A Petitioner who satisfies the jurisdictional requirements of Ohio Rev.Code § 2953.23 is entitled to have his constitutional claims adjudicated on the merits.

3. Ohio Rev.Code § 2953.23 violates the Ohio Constitution and the Federal Constitution.

4. The Ohio and Federal Constitutions prohibit the prosecution from deliberately interfering with the decision of a defense witness to testify.

5. A statute of limitation is not tolled if any competent person has knowledge of the corpus delicti.

6. A defendant must be granted leave to move for a new trial where he has satisfied the jurisdictional requirements of Crim. R. 33(B).

7. A new trial must be granted when newly discovered evidence would unquestionably result in an acquittal.

(Doc. 10, RX 57.)

On June 17, 2009, the state supreme court denied leave to appeal and dismissed the case because it did not involve any substantial constitutional question. (Doc. 10, RX 59; State v. Cleveland, 122 Ohio St.3d 1410, 907 N.E.2d 1194 (2009).)

Cleveland filed this petition for a writ of habeas corpus on Jan. 21, 2010. (Doc. 1.)

II. HABEAS CORPUS REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts must apply when considering applications for a writ of habeas corpus. Under the AEDPA, federal courts have limited power to issue a writ of habeas corpus with respect to any claim which was adjudicated on the merits by a state court. The Supreme Court, in Williams v. Taylor, provided the following guidance:

Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied—the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2002). See also Lorraine v. Coyle, 291 F.3d 416, 421-422 (6th Cir.2002), cert. denied, 538 U.S. 947, 123 S.Ct. 1621, 155 L.Ed.2d 489 (2003).

The task of a federal habeas court is not to overturn state court judgments by substituting the judgment of this court. Neace v. Edwards, No. 02-4079, 2005 WL 1059274, at *6 (6th Cir. May 6, 2005) (citing Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Federal district courts are not simply another level of “appellate tribunals to review alleged errors in state court judgments of conviction.” Baker v. Reid, 482 F.Supp. 470, 471 (S.D.N.Y.1979). Rather, the question before this federal habeas court is whether the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Williams, 529 U.S. at 412-413.

A state court decision is “contrary to” clearly established Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams, 529 U.S. at 405, 120 S.Ct. 1495. See also Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003).

A state court decision is not unreasonable simply because the federal court considers the state decision to be erroneous or incorrect. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Williams, 529 U.S. at 410-12, 120 S.Ct. 1495; Lorraine, 291 F.3d at 422.

III. STATUTE OF LIMITATIONS

The respondent argues that Cleveland’s petition should be barred because it was untimely filed. (Doc. 10, at 11-14.)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking a federal writ of habeas corpus to file his petition within one year after his state conviction has become “final.” Carey v. Saffold, 536 U.S. 214, 216, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (citing 28 U.S.C. § 2244(d)(1)(A)). The conviction becomes 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). Thus, the one-year statute of limitations does not begin to run until all direct criminal appeals in the state system are concluded, followed by either completion or denial of certiorari before the United States Supreme Court, or the expiration of the time allowed (90 days) for filing for certiorari. Clay v. United States, 537 U.S. 522, 528 n. 3, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.2002); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.2001), cert. denied, 534 U.S. 924, 122 S.Ct. 279, 151 L.Ed.2d 205 (2001) (citing cases). However, a habeas petitioner filing for collateral relief does not benefit from the 90 day certiorari period. Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (interpreting 28 U.S.C. § 2244(d)(2)).

A. Direct appeal

The state court of appeals affirmed Cleveland’s conviction on March 5, 1997. (Doc. 10, RX 8; Cleveland, 1997 WL 104653.) Cleveland did not seek timely review by the Ohio Supreme Court within 45 days, pursuant to Ohio Supreme Court Rule of Practice II, Section 2(A)(1). Thus, Cleveland’s conviction became “final” within the ordinary meaning of AEDPA on April 20, 1997. Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.), cert. denied, 534 U.S. 905, 122 S.Ct. 237, 151 L.Ed.2d 171 (2001). Accordingly, the statute of limitations for filing his habeas petition would have expired on April 20,1998.

B. Delayed appeal to state high court

Cleveland filed a motion for leave to file a delayed appeal to the Supreme Court of Ohio on May 9, 1997. (Doc. 10, RX 9.) The filing of the motion for a delayed appeal is considered collateral review, which, if properly filed, tolls the running of the one-year period. DiCenzi v. Rose, 452 F.3d 465, 468 (6th Cir.2006); Searcy, 246 F.3d at 519; Sanders v. Bobby, No. 5:07 CV 682, 2008 WL 276415, at *3 (N.D.Ohio Jan. 31, 2008). See generally Lawrence, 549 U.S. at 332, 127 S.Ct. 1079. The state high court denied leave to file a delayed appeal on July 2, 1997. (Doc. 10, RX 10.) Thus, the statute would have been tolled for 54 days during the pendency of his motion for leave. The statute of limitations as tolled would ordinarily have expired on June 13,1998.

C. Pending motion for new trial

However, Cleveland had filed a motion for a new trial on Dec. 3, 1996 (doc. 10, RX 16-17), which was still pending during this time. The proceedings on that motion, which included a hearing, did not conclude until the court of appeals denied his appeal on April 8, 1998. (Doc. 10, RX 24.) Cleveland did not seek timely review by the Ohio Supreme Court within 45 days (i.e., by May 23, 1998), thus, Cleveland’s conviction became “final” within the meaning of AEDPA at that time, and the limitations period expired one year later, on May 23,1999.

D. Untimely Rule 26(B) application

Cleveland had filed a delayed application to reopen his appeal, pursuant to Ohio App. Rule 26(B) (doc. 10, RX 11), on July 14, 1997, which the court of appeals found to be barred as untimely (doc. 10, RX 12). Subsequently, the Ohio Supreme Court dismissed his appeal of that determination. (Doc. 10, RX 15.) This untimely application does not affect the limitations period.

The limitations period is tolled while “properly filed” state post-conviction or collateral proceedings are pending. Souter v. Jones, 395 F.3d 577, 585 (6th Cir.2005); Searcy, 246 F.3d at 517-518; 28 U.S.C. § 2244(d)(2). However, an untimely post-conviction or collateral motion is not considered “properly filed” so as to toll the running of the statute of limitations. Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (per curiam) (affirming Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)); Williams v. Wilson, No. 03-4404, 2005 WL 2175914, at *3 (6th Cir. Aug. 9, 2005), cert. denied, 547 U.S. 1152, 126 S.Ct. 2299, 164 L.Ed.2d 822 (2006).

Under Ohio law, a Rule 26(B) motion to reopen must be filed in the court of appeals within 90 days of the appellate judgment. State v. LaMar, 102 Ohio St.3d 467, 468, 812 N.E.2d 970 (2004) (per curiam), cert. denied, 543 U.S. 1168, 125 S.Ct. 1349, 161 L.Ed.2d 144 (2005); State v. Reddick, 72 Ohio St.3d 88, 90, 647 N.E.2d 784, 786 (1995) (per curiam). The appellate judgment at issue was entered on March 6, 1997. (Doc. 10, RX 8; Cleveland, 1997 WL 104653.) The motion to reopen should have been filed by June 3, 1997. (Doc. 10, RX 12, at 1.) Cleveland’s application to reopen was not filed until July 14, 1997. (Doc. 10 ,RX 11.)

Cleveland’s application was rejected as untimely. (Doc. 10, RX 12.) Cleveland’s untimely Rule 26 motion to re-open his appeal does not toll the limitations period. Siebert, 552 U.S. at 7, 128 S.Ct. 2; Kimble v. Gansheimer, No. 4:08CV01048, 2009 WL 4676959, at *14 (N.D.Ohio Dec. 4, 2009).

The statute of limitations period (as properly tolled) ran until May 23, 1999.

E. Petition for post-conviction relief and motions filed in July 2006

Cleveland filed a petition for post-conviction relief, a motion for a new trial, and related motions, on July 6, 2006. (Doc. 10, RX 25, 28-30.) Although filing a post-conviction or collateral motion may toll the running of a pending, unexpired one-year limitations period, Souter, 395 F.3d at 585, it will not “revive” the statute, or cause it to begin running anew. Cordle v. Guarino, 428 F.3d 46, 48 n. 4 (1st Cir. 2005); Hill v. Randle, No. 00-4168, 2001 WL 1450711, at *2 (6th Cir. Nov. 7, 2001); Searcy, 246 F.3d at 519. The statute of limitations period had expired several years previously, in May 1999.

In summary, the statute of limitations, as tolled by the 1996 motion for a new trial, expired in May 1999. Because Cleveland did not file his petition for a writ of habeas corpus until Jan. 21, 2010, he did not file his habeas petition within the one year limitation period. The petition was untimely filed.

IV. SECTION 2244(d)(1)(D)

Cleveland also argues that he should be entitled to a later start date of the limitations period under Section 2244(d)(1)(D). (Doc. 13, at 18-19.)

Under 28 U.S.C. § 2244(d)(1)(D), the limitations period begins on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The limitations period under Section 2244(d)(1)(D) does not begin “when a prisoner actually understands what legal theories are available.” Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.2000). Accord Townsend v. Lafler, No. 02-2151, 2004 WL 1098757 (6th Cir. May 14, 2004), cert. denied, 543 U.S. 1062, 125 S.Ct. 884, 160 L.Ed.2d 792 (2005). Rather, the year “begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.” Id. See also Earls v. Hernandez, 403 F.Supp.2d 985, 989 (C.D.Cal.2005) (citing cases).

In cases involving an affidavit of a recanting witness, “the limitations period begins when the petitioner knew or could have discovered that the witness was willing to recant his or her testimony, not when the affidavit is executed.” Bates v. Metrish, No. 07-11073, 2010 WL 1286413, at *9 (E.D.Mich. Mar. 30, 2010) (citing cases). See, e.g., Deloney v. McCann, No. 06-2297, 2007 WL 1175758, at *2 (7th Cir. Apr. 18, 2007) (limitations period began running when petitioner became aware of facts underlying claim, not when he obtained evidence to support it); Sistrunk v. Rozum, Civ. No. 06-5630, 2009 WL 1089557, at *4 (E.D.Penn. Apr. 21, 2009).

To benefit from Section 2244(d)(1)(D), the habeas petition must be filed within one year from the date of the discovery. Coldiron v. Timmerman-Cooper, No. 3:04cv7750, 2007 WL 1813201, at *4 (N.D.Ohio June 19, 2007) (citing DiCenzi v. Rose, 419 F.3d 493, 497-500 (6th Cir. 2005)); Mosley v. Petro, No. 5:04cv726, 2006 WL 2640958, at *5 (N.D.Ohio Sept. 13, 2006).

Cleveland asserts that the factual predicate here is Avery’s recantation of his trial testimony, “which occurred on February 9, 2006.” (Doc. 13, at 18.) First of all, most of the grounds of the petition are not implicated. Cleveland states that Avery’s “recantation occurred on the date that Avery Jr. met with Cleveland’s representative and signed an affidavit—February 9, 2006.” Id. at 19. Clearly, an occurrence which allegedly did not occur until February 2006 would not be a factual predicate for a claim that the state failed to disclose favorable evidence (Ground 3) at the time of Cleveland’s jury trial ten years earlier, in January 1996. Nor could this event be a factual predicate for a claim of prosecutorial misconduct at that same trial (Ground 4), ineffective assistance of trial counsel (Ground 5), or ineffective assistance of appellate counsel (Ground 6).

More importantly, the respondent argues that the date on which the factual predicate (Avery’s willingness to recant) could have been discovered through the exercise of due diligence was actually much earlier than February of 2006. (Doc. 14, at 4.) The respondent notes that the issue of Avery’s recantation of his testimony arose during Cleveland’s trial itself. Id., citing Trial Transcript (“Tr. ”), at 329-332.

Counsel for Cleveland, in cross-examination of Avery during Cleveland’s January 1996 trial, asked “isn’t it a fact that you have testified at least on three different occasions under oath concerning this matter?” (Doc. 10, Tr., Vol. 3, at 324-325.) In addition, counsel referenced Avery’s Sept. 26, 1991, deposition. Id. at 325-326. Counsel also noted that Avery testified at the related trial of Lenworth Edwards, in March 1992, and at the trial of Benson Davis, in September 1994. Id. at 327.

Cleveland was aware of contradictory statements made by Avery in his deposition and at Cleveland’s trial. (Doc. 10, Tr., Vol. 3, at 332-333.) Counsel also brought out that Avery had earlier recanted his testimony in the related Edwards trial:

Q. Isn’t it true that you recanted your story ... when you were testifying in Edwards’ trial?

A. Yes, I did.

(Tr., at 363.)

In fact, Avery’s previous recantation, and the issues concerning his testimony could have been discovered, through the exercise of due diligence, simply by viewing the court of appeals’ 1992 opinion in the Edwards case:

At Edwards’s [1992] trial, Avery took the stand but refused to testify. The trial court held Avery in contempt, and ordered that he be incarcerated in the county jail until he agreed to testify. Avery later returned to the courtroom, testified that he had lied to the police, and recanted his inculpatory statements. Consequently, the trial court granted Edwards’s motion for a mistrial.

At Edwards’s second trial, Avery took the witness stand and explained that his original statements which implicated Edwards had in fact been true. He further explained that he had perjured himself during the first trial because he had been threatened by someone while in the county jail. Avery proceeded to testify, and described in detail how Edwards had participated in the assault and murder of Blakely.

State v. Edwards, No. 92CA005345, 1992 WL 380611, at *1 (Ohio Ct.App. Dec. 16, 1992).

Additional information could have been gleaned from the 1996 appellate opinion in the Davis case:

On the day of Edwards’ trial, Avery stated that he was not going to testify unless he received $10,000. The prosecutor would not agree to pay Avery any more money, so Avery refused to testify. The trial court held Avery in contempt, and ordered that he be incarcerated in the county jail until he agreed to testify. Avery later returned to the courtroom, testified that he had lied to the police and recanted his testimony. Avery claimed that he made everything up in order to collect the reward money. As a result, the trial court granted Edwards’ motion for a mistrial.

At Edwards’ second trial, Avery took the witness stand and explained that his original statements which implicated Edwards were in fact true. He further explained that he had perjured himself during the first trial because he had been threatened by Edwards while in the county jail. Avery proceeded to testify, describing in detail how Edwards had participated in the assault and murder of Blakely.

State v. Davis, No. 94CA005989, 1996 WL 121998, at *2 (Ohio Ct.App. Mar. 20, 1996). As mentioned earlier, counsel for Cleveland was clearly aware that Avery had testified in these two cases. (Doc. 10, Tr., Vol. 3, at 327, 363.) Thus, the court finds that the date on which the factual predicate of the claim (Avery’s recantation, and related issues with the credibility or veracity of his trial testimony) could have been discovered through the exercise of due diligence was no later than January 1996, when counsel for Cleveland demonstrated knowledge of this issue at trial.

Cleveland argues that the Feb. 2006 recantation is “substantively different” from the other versions of Avery’s story. (Doc. IS, at 22.) The February 2006 affidavit was merely the most recent version of Avery’s recantation(s). The factual predicate of Cleveland’s claim of innocence, that is, Avery’s various recantations, and issues with the veracity of his trial testimony, was known to Cleveland at trial, and long before the year 2006. See, e.g., Sistrunk, 2009 WL 1089557, at *4, *7.

The court finds that Cleveland has not demonstrated that Section 2244(d)(1)(D) is applicable to support a later start date for the statute of limitations.

V. EQUITABLE TOLLING

Cleveland contends that his untimely filing should be excused through the doctrine of equitable tolling. (Doc. 13, at 24.) The Supreme Court has held that the habeas statute of limitations may be subject to equitable tolling in appropriate cases. Holland v. Florida, — U.S. -, -, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (June 14, 2010). Cleveland bears the burden of persuading the court that he is entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir.2002); Day v. Konteh, No. 1:08CV0212, 2009 WL 3321388, at *10 (N.D.Ohio Oct. 13, 2009).

To benefit from equitable tolling, the petitioner ordinarily must show that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his way. Holland, 130 S.Ct. at 2562 (citing Pace, 544 U.S. at 418, 125 S.Ct. 1807); Lawrence, 549 U.S. at 335, 127 S.Ct. 1079. Sixth Circuit case law has consistently held that the circumstances which will lead to equitable tolling are rare. Souter, 395 F.3d at 590 (quoting Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)); King v. Bell, 378 F.3d 550, 553 (6th Cir. Aug. 3, 2004) (citing Dunlap v. United States, 250 F.3d 1001, 1009 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001)); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000) (rare and exceptional).

A. Extraordinary Circumstances

The Sixth Circuit has allowed for equitable tolling based on actual innocence under certain limited and extraordinary circumstances. McSwain v. Davis, 287 Fed. Appx. 450, 458-59 (6th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 2824, 174 L.Ed.2d 552 (2009); Souter, 395 F.3d at 597-599. In Souter, the petitioner was able to point to new evidence, unavailable at the time of his trial, supporting a credible claim of actual innocence. See, e.g., Souter, 395 F.3d at 583-584, 591-592. The threshold inquiry was whether the new facts raised sufficient doubt about the petitioner’s guilt to undermine confidence in his conviction. Souter, 395 F.3d at 590 (quoting Schlup, 513 U.S. at 317, 115 S.Ct. 851). Souter stated:

To establish actual innocence, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” [Schlup, 513 U.S. at 327, 115 S.Ct. at 867], The [Supreme] Court has noted that “actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court counseled however, that the actual innocence exception should “remain rare” and “only be applied in the ‘extraordinary case.’ ” Id. at 321, 115 S.Ct. 851, 130 L.Ed.2d 808.

Souter, 395 F.3d at 590; see also Maag v. Konteh, No. 3:05CV1574, 2006 WL 2457820, at *1 (N.D.Ohio Aug. 23, 2006).

It is Cleveland’s burden to show that this is “one of those extraordinary cases where a credible claim of actual innocence has been established by new evidence.” McSwain, 2008 WL 2744640, at *9. The Supreme Court has emphasized that “the Schlup standard is demanding and permits review only in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (citing Schlup, 513 U.S. at 327, 115 S.Ct. 851).

B. New reliable evidence of innocence

To support his claim of equitable tolling, Cleveland must present “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851; Souter, 395 F.3d at 590, 395 F.3d 577. The Schlup standard