NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0489n.06 No. 10-3997 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DEWI TT McDO NAL D, J R., Petitioner-Appellant,

v. WARDEN, L EBA

NON CORRECTI ONAL I NSTI TUTI ON, Respondent-Appe llee.

__________________________________________ ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; and T HAPAR, District J udg e. * GRI FF I N, Circuit J udg e. Petitioner DeWitt McDona ld, J r. wa s convicted in a n Ohio court of various crimes arising
out of a drive-by shooting that resulted in the death of Vivian J o h n s o n. Krista Har ris’s trial testimony implicated McDona ld in the shooting. More than six y ear s afte r McDona ld’s trial, Har ris decla red in a n aff idavit that she had been coer ced by the prosec utor into providing false testimony reg arding McDona ld’s wher eabouts and conduct the n ig h t o f the shooting. McDona ld soug ht fede ral habea s relief based on the aff idavit, but the district court conclude d that the new claims wer e timebarr ed and that he had not made a cre dible showing of actua l innocenc e that would set aside the bar. We affir m.

The Honora

ble Amul R

. Thapa

r, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

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I

. A. The Ohio Court of Appe als summarized the underly ing f acts a s follows: On the evening of J anuar

y 5, 1994, [McDonald] and companions Shawn Caston and Dar y l Turner wer e drinking at Whit lee’ s Ba r i n Sandusky , Ohio. Whil e at the bar, Caston became involved in a n argument with J erome Caffe y . At the conc lusion of this dispute, Caffe y left Whit lee’ s and Caston rejoined [McDonald] and Turner

. The next morning at approximately 3:00 a.m., Caffe y was in the house he s h are d with Anna Hunt, his aunt. Wit h Ca ff ey was an acquaintanc e, S haron McGill. Caffe y ’s aunt also had g uests. Tammy J ohnson, her sister Vivian J ohnson, and L aurie Henr y wer e returning from a g raduation party for Vivian’s daug ht er when Tammy and L aurie decide d to stop at Anna Hunt’s. Tired, Vivian J o h n s on rema ined i n the car while the other two went inside. As Tammy and L aurie prepa red to leave the house, it was spray ed with multiple gun shots. I n the house, a bullet struck Sharon McGill. Another bullet shattere d the window of the car i n which Vivian J ohnson was sit ting and struck her in the neck. The bull et which struck Sharon McGill lodge d in her abdomen, but she s u rvi ved. Vivian J ohnson died two day s later a s a re sult of her wound. Police investigators sear ched the scene and found twelve spent nine milli meter shell casing s of a ty

pe co m p atible with those used in an I ntertec h nine milli meter semiautomatic wea

pon. I n an initial interview with police, a n ei g hbor acr oss the s tree t stated that he had hear d, but not seen, the shooting. He descr ibed hea ri n g a four c y linder ca

r with a loud muffle r. Police attent i o n q u i ckly focuse d on [McDonald], Caston and Turner

. Wit nesses descr ibed the dispute betwee n Caston a nd Caffe y at Whitl ee’ s Ba

r. One witness at the bar repor

ted over- hear ing a conver sation the trio had afte r the dispute occur red. The witness rela

y ed that [McDonald] told Caston, with ref ere nce to Caffe y , that “he wouldn’t waste his t i m e o n one of them. He’ d cap one of them.” [McDonald], Caston and Turner wer e also seen toge ther just a few minutes befor e the shooting in a ca r at a Shell station a short distance fr om Caffe y ’s house. On J une 6, 1994, late in the afte rn o o n , police first interviewe d [McDonald]. [McDonald] denie d making any statement to Caston to “ca p” any one. When asked of his wherea bouts at the time of the shooting, [McDonald] said he had spent the - 2 -No. 10-3997

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yl Turner at Turner ’s g irlfriend’ s house. When Turner ’s g irlfriend failed to substantiate this alibi, [McDonald] said he had lied to keep secr et an [ex tramarital] aff

air he was having with Krista Har ris. Acc ording to [McDonald], he had spent the nig ht with Harris in a motel. Har ris initially supported [McDonald’s] story and went so far as to provide him with an alibi when she testified befor e a g rand jury

. L at er t h o u gh , Har ris chang ed her testimony

. During [McDonald’s] trial, Har ris stated that [McDonald] was supposed to meet her in a motel room a few b l o ck s from the shooting scene , but he did not show up until sometime afte r 3:15 a.m. When he did arr ive, acc ording to Har ris, he appea red nervous and shaken. Har ris also testified that the next mornin g she overhe ard a telephone conver sation b et ween [McDonald] and Turner in which the s h o o t ing was discussed and [McDonald] stated that they “had to g et the g un.” [McDonald] l eft a

nd returne d with Turner

a short time later; Turner was c arr y ing a duffle ba g . [McDonald] and Turner then went to Columbus, Ohio, wher e they stay ed for the next wee k. In her trial testimony , Har ris repor ted rec eiving numerous telephone calls from [McDonald] during this period. [McDonald] advised Har ris during the phone calls, “*** not to talk to police, [and] that I was g oing to be his alibi so he wouldn’t g o to jail ***.” Ove r [McDonald’s] objection, Har ris also testified that during one of her telephone conver sations with [McDonal d ] he g ave the phone to Turner

. Turner , ac cording to Har ris, war ned her that she was too involved to talk to the police. He also told Har

ris that he had provided S hawn Caston with the gun, “*** [t ]o take J erome Caffe y out,” and that he and [McDonald] then, “*** g ot rid of it.” During the course of the investigation another witness changed h i s s t ory . The neig hbor from acr oss the street who previously only re p o rted hear ing the shooting now admitted he had seen t h e s h ooting, but conce aled the information from investigators out of fear of becoming involved. The neighbor told police an d l at er t es t ified that he had seen three black males in a compac t car with a loud muffler shoot into the Caffe y

/Hunt house. He also noted that during the shooting he saw one of t he occupants of the car p as s the gun t o a front seat passeng er who shot it while holding it over

the windshield. The neig hbor’s observation o f t h e g un being fired over the windshield beca me important beca

use whe n investigators examined the car owned by Shawn Caston’s g irlfriend, a compac t car without a muffler , they found another nine milli meter shell casing lodge d in the well betwee n the windshield wiper and the ho o d

. Ex perts

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deter mined that the firing marking s on this shell matched those of the twelve casing s found at the shooting scene . I n ad d i t ion to this evidenc e, Dar y l Turner admitted to police that he owned an I ntertec h nine millim eter

pistol, but the wea

pon was ne ver f

ound. [McDonald], Turner and Caston wer e indicted on char g es arising out of the drive-by shooting. [McDonald] was i ndicted on seven counts: ag g rava ted m urder , murder, and involuntary manslaug hter (all relating to the death of Vivian J ohnson), unlawful discharg e of a firea

rm into an inhabited dwelling , felonious assault o n Sharon M cG ill, and attempted ag g ravated murder and attempted felonious assault (b o t h relating to J erome Caffe y ). The char g es also contained firea rm spec ifications and injury specific ations. [McDonald] plead[ed] not g uilty and the matter proce eded to trial. The thre e men we re trie d separ ately

. At trial, t h e s t ate prese nted evidenc e which included testimony conce rning the alterc ation at Whit lee’ s and [McDonal d’s] comments relative to Caffe y . The neig hbor who witnessed the shooting and Krista Har ri s al s o testified. At the conclusion of the state’s case in chief , the trial court overr

uled [McDonald’s] motion for a judgme nt of acquittal. [McDonald] prese nted no defe nse. On deliberation, the jury found [McDonald] g uilty on all counts ex cept the involuntary manslaug hter char g e. The trial court entered judgment on t he verdict and sentenced appellant t o life imprisonment. State v. Mc

Donald , No. E-95- 046, 1997 WL 51221, at *1-3 (O hio Ct. App. Feb. 7, 1997). The Ohio Court of Appea ls aff irmed McDona ld’s convictions, id

. at *7, and the Ohio Supreme Court d ec l i n ed discretionar y revie w, State v. McD onald , 679 N.E.2d 309 (Ohio 1997) (table)

. A fede ral district court denied habea s relief

. We decl i n ed t o i s sue a cer tificate of appea lability

. On De ce m ber 21, 2001, Krista Harris, a key witness for the prosec ution, filed an aff idavit in the Court of Common Pleas for Erie County , Ohio. The aff idavit stated the following in rele vant part:

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4. I n 1994 Affia

nt at t he ag e of twe nty

was c oerc ed by

threat of false criminal char g es including acc essory to murder by the Erie County Prosecutor Kevin Ba x ter into providing false testimony in the trials of State v. Dar ryl Turner and State v. De witt Mc Donald. 5. I n 1994, Affia

nt was coer ced into a non-conse nsual sexual re lationship with the Erie County Prosecutor Kevin Ba x ter by threat of false criminal char g es including being an acc essory to murder prior to the trials of para g raph four. 6. I n 1 9 9 5 , while under the threat of false criminal char g es including perjury , Affia nt while eng ag ed in a coer ced sexual relationship with the Erie County Prosecutor Kevin Ba x t er o bserve d Kevin Ba x ter

. . . eng ag e in illega l drug use to wit: coca ine on two occ asions at his persona l residenc e . . . . 7. After the trials of para g raph four and while being forc ed to eng ag e[] in a nonconsensua l sexua l r e la

ti o n s h ip w it

h th e Erie County Prosecutor Kevin Ba x ter, Affia nt was ordere d to move t o Cleveland Ohio by Erie Count y Prosecutor Kevin B axter in order to c oncea l the rela tionship. 8. I n order to fac ilitate the move . . . , the Erie County Prosecutor K evin B axter provided a chec k to Kris t a Ha rris draw n on the Erie County Prosecutor’ s Fur thera nce of J ustice F und in order to pa y for a U Haul truc k. 9. I n order to fac ilitate the move . . . , the Erie County Prosecutor Kevin Ba x ter provided a chec k to Krista Har ris made out to J anet Torre s in the amount of $800.00 draw n on the account of the Erie County Prosecutor’ s Fur thera nce of Jus tice F und. The aff idavit was attache d to a motio n t o disqualify the specia l prosec utor appointed in Har ris’s cr i minal case . Har

ris had been indicted in Marc h 2001 on theft char g es, and additional char g es wer e added in November 2001. Dea n Holman, prosec utor for neig hboring Medina County , had been specia lly appointed in J anuar y 2001 by the court to investigate, indict, and prosec ute Har ris

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beca use Kevin Ba x ter, the targ et of Har ris’s alleg ations, had inte n d ed t o u s e her as a witness at a retria l of Shawn Caston, which c reated a c onflict should Ba x ter prose cute he r for the theft. 1 During her criminal proce eding s, Har ris was repr esente d by at least four differ ent attorney s,

one of whom was Elsebeth Ba umga rtner. Shortly afte r enter ing an appea ranc e, Ba umga rtner moved
to disqualify the s pecia l prosec utor and to quash Harris’s indi ctment. Sh e claimed that Holman’s specia l appointment was invalid, which rendere d the indictment void ab initio . Ba umga rtner a lso claimed that Holman and Ba x ter wer e eng ag ed in “ case fix ing a nd bring ing f

alse c riminal char g es due to Kevin Ba x ter’s enormous interest in silencing Krista Har ris beca use of her knowledg e of his criminal wrong doing.” Har ris’s aff idavit was i n t en ded to substantiate these alleg ations. 2 Ba umga rtner stated in her own aff idavit that she overhe ard Ba x ter and Holman discussing Har ris’s

case and believe d the two committed crimes in the c ourse of the prosec ution. Holman moved, in turn, to disqualify Ba umga rtner on g rounds that she was purporting to be

a witness for Har

ris and beca

use she had a persona l interest in the repr esentation, de monstrated by the content in her aff

idavit about alleg ed corr

uption of various state officia ls. He argued that, “base d

on her aff idavits, it is c lear Ba

umga rtner is attempting to be come counsel in this case to use it as a forum to make false acc usations ag ainst public officia ls and advance her persona l interests and

Caston’s first conviction was vacated on habea s revie w on the basis of ineffe ctive assistance 1 of counsel. See Caston v. Mitchell , 12 F. App’x 208 (6th Cir. 2001) (per curiam). He later pleade d g uilty to voluntary

manslaug hter a

nd serve d an additional eig hteen months in prison. Ba umga rtner had a history of fil i n g p l ea d ings that alleg ed widespre ad corr uption among 2 v ar i o u s Ohio officia ls. She was eventua lly disbarre d by the State of Ohio and the United States District Court for the Nor thern District of O hio.

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age nda. Her actions show that her persona l interest and ag enda have manifestly aff ecte d her profe ssional judgme nt.” The tria l court gra nted Holm an’s moti on and dis qualified Baumg artne r. I t denied Ha

rris’s motion, but gr anted he r leave to re new the motion at a later time if she w ished. I n addition t o fi l i ng Har

ris’s aff idavit in the trial court, Ba umga rtner put Har

ris in contac t with the Ohio Bur eau of Criminal I dentification & I nvestig ation (“B CI ”). BCI Ag ents Rhonda Dending er and Rex Russell interviewe d Har ris reg arding her alleg ations. Har ris told the ag ents that she did not know when exactly McDona ld arr ived at t h e m o t el t he night of the shooting but expressed her pers o n al b el i ef that McDona ld more than likely was prese nt at the shooting. She further told them that she testified the way Ba x ter had told he r to, but she could not rec all whether her testimony was truthful beca use she could not reme mber what she testified to. She did rec all, howeve r, that Ba

x t er told her to say that she overhe ard McDona ld tell Turner on the phone the morning afte r the shooting that they had to get ri d o f t he g un. Ba x ter also told Har

ris to say that Turner had broug ht a bagwith him to t he motel the next morning. B oth of these we re untrue

. I n a letter to D enise Demitt, one of Har ris’s attorney s at the time, A g ent Russell stated that he and Ag ent Dending er had interviewe d Har ris for near ly three hours. Russell stated further that, due to th e p rofound nature of the alleg ations and circ umstances surrounding Har ris’s decision to

come forwa

rd, a polyg raph examination was nece ssary . Har ris had told the ag ents that she wanted the matter fully investigated within wee ks so that any criminal char g es ag ainst Ba x ter could prec ede and potentially aff

ect her own trial. Russell noted that Har ris’s ag g ravation that the age nts would be unable to investigate and indict Ba x ter within that amount of time cre ated a “ca use for conce rn.”

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arden Despite multipl e follow-up phone calls to Har ris reg arding the investigation, the ag ents did not hear from her afte r the intervie w. The news media quickly caug ht wind of Har ris’s alleg ations. On J anuar y 9, 2002, just two

wee ks afte r Har

ris filed her aff

idavit, The News-Messe nger (F remont, Ohio) repor ted that Har

ris had alleg ed criminal wrong doing on the part of Ba x ter and Holman. Most notably , on Fe bruar y 1, 2002, The Columbus Dispatch repor ted on Har

ris’s alleg ations in an article reg arding Ba u m gar tner’s

acc usations ag ainst numerous Ohio officia ls. The article stated that “B en Espy , a Columbus lawy er, said he may ask for a new trial in a client’s murder case b as ed on Ba umga rtner’ s rene wed

acc usations about the Erie County prosec utor,” and that “Espy

. . . said he thinks he might g et a new trial for Dewitt McDona ld ‘if I verify some statements.’” Espy submitt ed an aff idavit in these habea s proce eding s stating that he did not beg in officia lly repr esenting McDona ld in post-conviction eff orts until Aug ust 1, 2002, and that befor e that time, he had only repr esente d McDona ld’s fathe r, DeWitt McDona ld, Sr., in an attempt to obtain money paid to one of McDona ld’s ear lier defe nse attorney s. On May 1, 2003, McDona ld, throug h counsel, filed in the Ohio Court of Common Pleas for Erie County a petition for post-conviction relief and a motion for leave to seek a new trial. The trial
court found that both reque sts wer e untimely and denied them. The Ohio Court of Appea ls aff irmed, and the Ohio Supreme Court denied revie w. Three months later, McDona ld moved ag ain for a new trial in state court. The trial court found the motion untimely as well, and the Ohio Court of Appea ls aff irmed that dec ision.

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B. Whil e McDona ld’s second motion for a new trial was pending , he moved succe ssfully in this
court for permission to file a sec ond or succ essive habe as petition. See In re McD onald , 514 F.3d 539 (6th Cir. 2008). McDona ld then filed his second petition in the di strict court and raised thre e claims: (1) knowing use of perjure d testimony ; (2) failure to disclose impeachme nt materia ls; and (3) denial of the rig ht to prese nt a witness in one’s defe nse. Eac h claim was predic ated on Har ris’s alleg ations reg ardingBa x ter’s c onduct duringMcDona ld’s trial. After permitting the parties to expand the rec ord, a mag istrate judge rec ommended that the petition was untimely , but that McDona ld could set aside the time bar beca use he had made a

cre dible showing of actua l innocenc e. The mag istrate further rec ommended g ranting the petition with r espec t to two of McDona ld’s claims. The war den objected, and the district judge conducte d

an evidentiar

y hear ing to assess the reliability of Har ris’s aff idavit and deter

mine whether McDona ld could make a showing of actua l innocenc e to excuse the time bar. The district court hear d testimony from Krista Har

ris, Kevin Ba x ter, Rhonda Dending er, Roy Prewitt (a detec tive who investiga ted the J ohnson murder) , and Dea n Holman. Of particula

r note, Har

ris testified that she could not rec all any of her alleg ations ag ainst Ba x ter or what she testified to during McDona ld’s criminal proce eding s. Counsel for McD onald and the w arde n made c losing re marks. After the evidentiar

y hear in g, the district court issued an opinion and order reje cting the mag istrate’s rec ommendation and dismiss ing McDona ld’s peti t ion as barr ed by the statute of limit ations. I t concluded t h at the petition was untimely and that McDona ld had not established a

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cre dible claim of actua l innocenc e. I t g rante d a cer tificate of appea lability “on the issues of whether Petitioner’s claim is barr ed by the statute of limit ations and, if so, whether Petiti o n er h as made a showing of ac tual innocenc e.” Mc Donald timely appea led. I I

. The district court conclude d that McDona ld’s claims wer e time-barr ed. I ts leg al conclusions

are revie wed de novo and its fac tual finding s for clea r err or. Cook v. Stegall , 295 F.3d 517, 519 (6th Cir. 2002). A. The Antiterror ism and Effe ctive Death Penalty Act of 1996 (“A EDPA”) imposes a one-y ear limit ations period that beg ins on the latest of “(A ) the date on which the judgme nt beca me final by the conclusion of direc t r eview or the expiration of the time f or seeking such revie w . . . or (D) the date on which the fac tual predic ate of the claim or claims prese nted co u l d h av e b ee n discovere d throug h the exercise of due diligenc e.” 28 U.S.C. § 2244(d)( 1). Be cause McDona ld’s claims rely upon evidenc e discovere d afte r his judgme nt beca me final, subpara g raph D applies. He must show that he filed within one y ear of the time he could have discovere d the aff idavit throug h the exercise of due diligenc e. See DiCenzi v. Rose , 452 F.3d 465, 471 (6th Cir. 2006) (noting the petitione r’ s burden to demonstrate diligenc e). “The proper task

. . . is to deter mine when a duly diligent person in [McDonald’s] circ umstances would have discovere d [Harris’s af fi d avit ].” Id. at 470 (quoting W ims v. United States , 225 F.3d 186, 190 (2d Cir. 2000)). McDona ld g ets a full y ear afte r that date (plus any periods excluded by

statutory tolling) to file.

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The district court found that McDona ld knew or should have known about Har ris’s aff idavit
at the latest by Fe bruar

y 1, 2002, the date the Columbus Dispatch repor ted Be n Espy as saying that he might seek a new trial for McDona ld on the basis of the aff idavit. I t rea soned that it was “unlikely that Espy would announce publicly his intention to seek a new trial on [McDonald’s] behalf but fail
to tell [McDonald] the same.” McDona ld offe red no alternative date on which to start the one-y ear period, nor did he rec ount the steps he took to discover Har ris’s aff idavit, w hich was his bur den to do i f h e wa n t ed a later start date. There fore , using the date of Fe bruar y 1, 2002, the di strict court conclude d that the one-y ear limit ations period expired on Fe bruar y 1, 2003, which was three months befor e McDona ld filed any post-conviction applications in state court that could have conce ivably tolled the one-y ear

period unde r § 2244(d) (2). Using Fe bruar

y 1, 2002, as the start date for the limit ations period was entirely rea sonable, espec ially in the absenc e of any evidenc e or argument by McDona ld that he could not have lear ned of the aff idavit sooner throug h the exercise of due diligenc e. That a petitioner does not in fac t lear n

sooner of the fac tual predic ate of his new claim does not, ipso facto , establish that a diligent person in the petit ioner’s shoes also would not have done so sooner. See Stokes v. Leonard , 36 F. App’x 801, 804 (6th Cir. 2002) (noting that a petitioner who mere ly asser ts that he did not discover the fac ts underlying his c laim until a certa in time has not demonstrated due diligenc e). McDona ld now arg

ues (for the first time) that he co u l d n o t h ave known about Har ris’s aff idavit until Aug ust 1, 2002, when Ben Espy beg an officially repr esenting him. Yet, he has not explained why this is so, g iven the district court’s rea soning. Specifica lly , how is it that the attorney

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who repr esente d McDona ld’s fathe r in a matter related to McDona ld’s criminal case , and who later repr esente d McDona ld in post-conviction proce eding s b as ed u p o n the aff idavit, knew about the aff idavit sometime befor e Februa ry 1, 2002, and knew it might be enoug h to g et M cDona ld some relief , but failed to mention it to McDona ld or his fathe r (who assure dly would have told McDona ld) for f ive months? McDona ld has no answe r. But reg ardle ss, even if a rea sonably diligent person in McD o n al d’s shoes would not have lear ned of the aff

idavit until August 1, 2002, it does not chang e matter s. Using that date, the oney ear period expired Aug ust 1, 2003. Although the period is tolled while “a proper ly filed application for State post-conviction or other collater al revie w” rema ins pending , 28 U.S.C. § 2244(d)( 2), none of McDona ld’s state post-conviction petitions and motions wer e “prope rly filed” for purposes of statutory tolling beca

use they wer e all denied as untimely

. See Pace v. DiGuglielmo , 544 U.S. 408, 3 414 (2005) (holding that an untimely application for post-conviction relief i n s t ate court is not “prope rly filed” f or purpose s of s tatutory tolling). And we may not second gue ss the state cour t’s application of its own law. See Vroman v. Brigano , 346 F.3d 598, 6 0 4 (6th Cir. 2003) (“F eder al
courts are obligated to acc ept as valid a state court’s interpre tation of state law and rules of prac tice of that s t at e. ”) ; e.g. , id. (“A ccor dingly , this court will not rec onsider the Ohio state courts’ deter mination that Vroman’ s post-conviction petition was untimely

. . . .”). As the Supreme Court

The Ohio courts conclude d that McDona ld filed well outside the require d period and could 3 not excuse the untimeliness by showing that he was preve nted from discovering the fac tual predic ate for his claim and that, but for the constitutional violation, no rea sonable fac tfinder would have found him guilty

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made clea r in Pace , “[w]hen a postconviction petition is untimely under state law, ‘that [i s] the end of the matter’ for purposes of § 2244(d)( 2).” Pace , 544 U.S. at 414 (quoting Carey v. Saffold , 536 U.S. 214, 226 (2002))

. And this is so, even if, as here , the dete rm i n at ion of timeliness require s judicial consideration. Id. at 4 1 4 -15; see also id. at 420 (Stevens, J ., dissenting) (“The Court’s 4 chosen r ule means that a state a

pplication will not be deemed properly filed – no m atter howlong the state court has held the petition, how car efully it has revie wed the merits of the petition’s claims,

o r h o w i t has justified its decision – if the court ultimately deter mines that particula

r clai m s

co n t ained in the application fail to comply with the applicable state statute of limit ations.”); cf. W illiams v. Birkett , 670 F.3d 729, 734 (6th Cir. 2012) (“The ref ore, even though M.C.R. 6.502(G)( 2) may require judicial scrutiny

to determine w hether

an exception applies, that does not requir e this
court to hold that a succe ssive motion in Michig an may be co nsidered ‘prope rly filed.’” ). Acc ording ly , even if the one-y ear period be g an to run on August 1, 2002, as McDonald contends, it ex pired on Aug

ust 1, 2003, well befor e McD onald filed the instant petition. W i thout equitable tolling or a cre dible showing of actua l innocenc e, McDona ld’s second habea s petition is barred by the statute of limitations. W e conside r these possibilities nex t.

B. AEDPA’s one-year limit ation period may be equitably tolled if a petitioner shows that: (1) he has been pursuing his rig hts diligently , and (2) some extraordinary circ umstance stood in his way and preve nted a timely filing. Holland v. Florida , 130 S. Ct. 2549, 2562 (2010); see Hall v. W arden,

See Ohio Rev. Code § 2953.23(A) and Ohio R. Crim. P. 33(B). 4 - 13 -No. 10-3997

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Lebanon Corr. Inst. , 662 F.3d 745, 749-50 (6th Cir. 2011) (n oting that Holland ’s two-par t test superse des our previously -used five-pa rt test). The district court conclude d that McDona ld was not entitled to equitable tolling beca use he failed to make a showing with respe ct to any of the five fac tors we used befor e Holland to consider reque sts for eq u i t ab l e tolling. See Dunlap v. United States , 250 F.3d 1001, 1008- 10 (6th Cir. 2001). On appea l, McDona ld arg ues that he can meet Holland ’s two-par t test for equitable tolling. Wit h respe ct to the first part

– du e d i l ige nce in pursuing rig hts – we have alre ady explained that McDona ld has not s h o wn diligenc e. To repe at, McDona ld has not identified the steps he took to lear n of Har ris’s aff idavit. Nor does he explain why he did not lear n about it until August 1, 2002,

even though the lawy er he hired to seek post-conviction relief on his behalf stated five months befor e that time that he was mulling McDona ld’s options for relief

. And to further repe at, it is McD onald’s burden to demonstrate due diligenc e. DiCenzi , 452 F.3d at 471; see also Ata v. Scutt , 662 F.3d 736, 741 (6th Cir. 2011) (“ [T] he petiti oner bears the ultimate burden of persua ding the court that he or she is entitled to equitable tolling.” ). He has not done so. As for extraordinary circ umstances that preve nted a timely filing, McDona ld offe rs us two: (1) incar cer ation; and (2) that the district court would not have believed him had he testified that he did not learn of

the af fidavit until August 1, 2002. The first asser ted re ason is not extraordinary

– the vast majority of habea s petitioners are incar cer ated. The second rea son makes littl e sense – that the district court might have disbelieved McDona ld ha d he testified that he lear ned of the aff

idavit only on Aug ust 1, 2002, does not spe ak to a ny circ umstance that stood in his way of timely filing.

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Whil e a statement to this eff ect might have spoken to when the limit ations period beg an to run, see § 2244(d)( 1)(D) , it is not rele vant to whether the limit ations period, once trig g ere d, should be tolled in equity due to extraordinar

y circ umstances. Mc Donald is not entitled to equitable tolling.

C. Next, McDona ld argues that t h e district court err ed in finding that he failed to establish a claim of actua l innocenc e so as to excuse the untimeliness of his habea s petition. I n Souter v. Jones , 395 F.3d 577 (6th Cir. 2005), we held t hat “whe re a n otherwise time- barr ed habe as petitioner can demonstrate that it is more likely than n o t that no rea sonable juror would have found him g uilty bey ond a rea sonable doubt [i n light of new evidenc e], the petitio n er s h o u l d be allowed to pass throug h the g atewa

y and argue the merits of his underly ing constitutional claims.” Id. at 602. Under this “ac tual innocenc e” exception to the statute of limit ations, a court must ask “whe ther new fac ts 5 raise sufficie nt doubt about the petitioner’s g uilt to undermine confide nce in the result of the trial.” Id. at 590 (quotation m arks and alterations omitted). “To be cre dible, such a claim require s [a] petitioner to suppor

t his alleg ations of constitutional error with new re liable evidenc e – whe ther it

Since Souter , we have descr ibed a claim of actua l innocenc e as a specie s of “equitable 5 tolling.” Howeve r, equitable tolling has historically require d a showing of due diligenc e, see Pace , 544 U.S. at 419 (“U nder long- established principles, petitioner’s lack of diligenc e prec ludes equity ’s operation.” ), an d the Supreme Court rec ently held that equitable tolling in habea s case s is no differ ent in this respe ct, see Holland , 130 S. Ct. at 2562. We also rec ently rea ffirme d that a cre dible claim of actua l innocenc e excuses the time bar even without a showing of due diligenc e. See Perkins v. McQ uiggin , 670 F.3d 665, 672-76 (6th Cir. 2012). I n light of these developments, we find it more appropr iate to think of a claim of actua l innocenc e as a way to set aside t h e t i m e b ar , or as an exc ep t i o n to the proce dural barr ier, rathe r than as a vehicle for equitably tolling the limit ations period. See id. at 675 n.3. - 15 -No. 10-3997

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be exculpatory scientific evidenc e, trustworthy ey ewitness acc ounts, or critica l phy sical evidenc e

– that was not prese nted at trial.” Id. (quoting Schlup v. Delo , 513 U.S. 298, 324 (1995))

. We consider all new evidenc e bear ing on the question of actua l innocenc e, without reg ard to whether it would be admitted at trial. Schlup , 513 U.S. at 327-28. Sufficient showing s of actua l innocenc e are rar e and the exception rese rved f

or extraordinar

y case s. Souter , 395 F.3d at 590. The district court conclude d that Har ris’s aff idav i t and interview with BCI ag ents did not constitute new, reliable evidenc e that raised sufficie nt doubt ab o ut M c D o n a ld ’ s g u il t a n d u n d e r mi n e d confide nce in the verdic t. L ooking past t h e co n tent of Har ris’s alleg ations, the district court considere d the context in which they wer e made to assess their reliability

. I t was rig ht to do so. See Schlup , 513 U.S. at 332 (“[T]he court may consider how the timing of the submissi on and the likely

cre dibilit y of the aff

iants bear on the probable reliability of that evidenc e.”) ; see also House v. Bell , 547 U.S. 518, 557 (2006) (Roberts, C.J ., concur ring in the judgme nt in part and dissenting in part) (“In short, the new evidenc e is not simply taken at fac e value; its reliability h as to be tested.”) ; Brooks v. Tennesse e , 6 26 F.3d 878, 897 (6th Cir. 2010) (“[T] his court views with g reat suspicion the rec antation testimony of trial witnesses in postconviction proce eding s.”); W illiams v. Coyle , 260 F.3d 684, 708 (6th Cir. 2001) (“L eg ally , rec anting aff idavits are alway s viewed wi t h ‘extreme suspicion.’” (quoting United States v. Chambers , 944 F.2d 1253, 1264 ( 6th Cir. 1991))). We g ive defe renc e to the district court’s fac tual assessments reg arding the reliability of new evidenc e pres en ted at the evidentiar y hear ing. See House , 547 U.S. at 539. And that defe renc e applies equally to cre dibilit y deter minations. Brooks , 626 F.3d at 897. Howeve r, the district court’s

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ultimate deter

mination reg arding actua l innocenc e, i.e., whether the new fac ts raise sufficie nt doubt about the petitioner’s g uilt to undermine confide nce in the result of the trial, is a leg al question we revie w de novo. See House , 547 U.S. at 539-40; McSwain v. Davis , 287 F. App’x 450, 459 (6th Cir. 2008). The district court g ave persua sive rea sons for finding Har ris’s statements unreliable

. I t noted first that Har

ris h ad a persona l motive for making her alleg ations ag ainst Ba x ter – she was under criminal char g es for theft at the time and had filed the aff idavit in support of her motion to disqualify the s p ec i al prosecutor and quash her indictment. In addition, Ag ent Dendinge r’s testim ony at t he evidentiar y hear ing and Ag ent Russell’s letter to Har ris’s counsel following Har ris’s interview with the two ag ents further indicate that Har ris’s purpose for submitt ing the aff idavit was to substantiate her arguments for dismiss al of her own then-pe nding indictment. Dending er testified at the evidentiar y hear ing that Harris wanted to control the interview and was insistent that the investigation a

nd indictment of Ba x ter be completed within a few wee ks of the interview so that it could potentially aff

ect her criminal proce eding s. Russell’s post-interview letter indicated that Har ris’s insistence on a tight t i m e- fr am e was conce rning

. McDona ld contends that Har ris came forwa rd shortly afte r the statute of limit ations for perjury had expired, and that the p o s s i b i l i t y of 6 being prosec uted was the rea l rea son she did not come forwa rd sooner. Whil e one could rea sonably draw t h i s infere nce, the district court implicitl y reje cted it, and we cannot say that its finding is

Ohio’s limit ations period for perjury is six y ear s. See Ohio Rev. Code § 2901.13(A)( 1)(a ); 6 State ex re l. Dominguez v. State , 951 N.E.2d 77, 78 (Ohio 2011) (per curiam). - 17 -No. 10-3997

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clea rly err oneous. Moreove r, the circ umstantial evidenc e supporting the finding that Har ris’s own criminal prosec ution motivated her to come forwa rd is strong , and McDona ld has not pointed to any direc t evidence to the contra ry . The district court also considere d that Har ris had made her alleg ations shortly afte r coming into contac t with Elsebeth Ba umga rtner and that Ba

umga rtner had a leng thy history of making false and sca ndalous ac cusations ag ainst Ohio officia ls, thereby casting further

doubt on the vera city

of Har ris’s alleg ations. Denise Demitt, Har ris’s counsel befor e Ba

umga rtner, testified in disciplinary proce e d in g s c oncer

ning Ba umga rtner that, despite not being a criminal defe nse lawy er, Ba umga rtner “sig ned on to [Harris’s] case beca use she saw a host. She saw a chanc e that she [could further ] her ag enda throug h

. . . this woman [now] sitti ng in prison. I t is a trave st y . ” T h i s al l sug g ests that Ba umga rtner put Ha

rris up to the whole thing and ca lls int o doubt the aff idavit’s reliability

. Finally , the district cour t ci t ed Harris’s g ener al lack of cre dibilit y as a rea son why her aff idavit was unreliable. The court noted that Har ris had told three differ ent stories reg arding McDona ld’s wher eabouts the night of the shooting: (1) she told the first g rand jury that McDona ld

was with her at the time; (2) she told the second g rand jury and the petit jury that McDona ld showed up afte r the shooting and appea red nervous and shaken; and (3) she to l d Age n t s Ru s sell and Dending er that she did not know if McDona ld was involved, but expressed her persona l fee ling that he was. Finally , at the evidentiar y hear ing, she was unable or unwilling to r eca ll a ny details of her

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ear lier st atements, or say whether the allega tions in her affidavit were true. Although McDonald 7 surmises that Ba x ter ha d threatened Ha rris into silence, the c laim is unsubst antiated a nd belied by the fac t that Har

ris came forwa

rd in 2001, when she would have harbor ed the same fea r of Ba x ter. The district court rec o gn i z ed that some evidenc e in the rec ord corr oborate s Har ris’s alleg ations, but found that it was of littl e value in deter mining the reliability of Har ris’s alleg ations reg arding McDona ld’s trial. We ag ree . First of all, Har ris claimed that Ba x ter used h is office ’s funds t o move her from S andusky to Cleveland to cove r up their illicit relationship. Checks from Ba x ter’s office issued to pay for the move do exis t, and Ba x ter does not dispute that he helped Har ris

move. Ba x ter and Prewitt testified, howeve r, that Har ris was reloc ated beca

use she fea

red reta liation from McDona ld’s family , not to cover up an illicit relationship. I t was the district court’s prer og ative
to cre dit Baxter’s explanation; doing so wa s not clear ly err oneous. Additionally , Har

ris disclosed to t h e BC I ag ents various details reg arding the inside of Ba x ter’s house, which supports her alleg ation that she visited his home on various occa sions during their relationship. Some of Har ris’s descr iption was acc urate an d s o m e was not, and she left out

some signific ant features. The court found that, even if Har ris’s acc ount of the home wer e acc urate , she easily could have lear ned the details from someone familiar with the home, such as Ba x ter’s

Notably , howeve r, Har

ris was able to rec all the details surrounding her criminal case 7 pending at the time she made the alleg ations. She testified that a prison psy chiatrist h ad re ce n tly diag nosed her with post-traumatic stress disorder and sug g ested that the disorder had contributed to her lapse of memory . She was unable to explain why she could rec all the details of her own criminal case but not those surrounding her alleg ations ag ainst Ba x ter made contempora neously

. The district judge asked f

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estrang ed brother, Edwar d Ba x ter, who had spoken to Har ris wee ks prior to her BCI interview. Specifica lly , in a disciplinary hear ing conce rning Elsebeth Ba umga r tn e r , E d w a r d B axte r te s ti f

ie d th a t Har ris called him afte r Ba

umga rtner told Har

ris that he (Edwa

rd) was g oing throug h a simil ar situation with Kevin. Although Edwar d testified that Har ris descr ibed to him the inside of Kevin’s home, Edwar d’s cre dibilit y is a serious question. He pled g uilty in April 2003 to one char g e of obstruction of justice in a case involving his brother and admitted under oath that he “fa cilitated the

co m m unication of false information reg arding my brother, Kevin J

. Ba x ter to other indi viduals

. ” Fur thermore , Edwar d had a motive to lie about his brother, having been embroiled in a bitter probate dispute reg ardingtheir par ents’ estate. Apar t from Har

ris’s aff idavit, McDona ld offe rs further new evidenc e that he believes supports his innocenc e. He o ff er ed this evidenc e in the district court, but the district court conclude d, without explan at i o n , that the evidenc e was not new or reliable and did not cast doubt upon McDona ld’s g uilt. A lt h oug h such an explanation would have been helpful, we ultimately ag ree with the district court on the issue. First, McDonald offe rs that Shawn Caston, one of the other defe ndants char g ed in the J ohnson shooting, passed a poly g raph examination in Fe bruar y 2002, in which he stated he (Caston)

was the shooter and did not mention that McDona ld was with him at the time. McDona ld considers
t h i s s t ro n g evidenc e that he was not at the shooting. But it does not appea r from the poly g raph results that Caston ever said McDona ld did not participate in the shooting or that Caston acte d alone. Those questions, it appea rs, wer e neve r aske d. Moreove r, on Marc h 19, 2002, afte r the polyg raph

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a couple of times at the house. There fore , Caston’s poly g raph examination does not cast doubt upon McDona ld’s g uilt. Second, McDona ld asser ts that another person has co n fe s s ed to killing Vivian J ohnson. Specifica lly , J erma ine J ohnson, Vivian’s son, signe d a sworn aff idavit sta t i n g t hat J erome Caffe y told him, “I killed [y our] m o m m a. ” Howeve r, Caffe y ’s statement to J ohnson can hardly be considere d a reliable confe ssion to J ohnson’s killing. Acc ording to the aff idavit, the statement was

m ad e d u ri n g a heate d alterc ation betwee n Caffe y and J erma ine at a bar and seems to have b ee n intended ent i re l y to g oad J erma ine into fig hting. I ndeed, a state trial court found the statement unreliable for this rea son when McD onald ra ised it as a basis for a new trial. For all these rea sons, McDona ld has failed to demonstrate by a preponde ranc e of the evidenc e, on the basis of new and reliable evidenc e, that no rea sonable juror would have found him g uilty bey ond a rea sonable doubt. He cannot excuse the untimeliness of his petition, and the district court prope rly

dismiss ed it. I I I

. Finally , McDona ld argues that the district court err ed by not letting various other individuals testify at the evidentiar

y hear ing, an d b y d eny ing his reque st to expand the rec ord to include the results of a future investigation into a potentia l mo ti v e b y Ba x ter to wrong fully prosec ute McDona ld. The district court did not cer tify this issue for appea l, and McDona ld has not asked us to expand the

cer tificate to include the issue. We do not consider issues not cer tified for appea l. See Bug h v.

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Mitchell , 329 F.3d 496, 502 n.1 (6th Ci r. 2003). Although we have the power to expand the

cer tificate on our own, see, e.g. , Humphrey s v. Un i t ed S tates , 238 F. App’x 134, 138-39 (6th Cir. 2007); Mack v. Ho l t , 62 F. App’x 577, 578 (6th Cir. 2003) (per curiam), we decline to do so here beca use the district court’s rul i ng s on these proce dural matters are not debata ble. See Slack v. McD aniel , 529 U.S. 473, 484 (2000); see 28 U.S.C. § 2253(c)(2)

. I V. For these re asons, we a ffirm the judg ment of the district cour t.

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