NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0853n.06

Filed: October 18, 2005

No. 04-3944

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GERALD MARTIN,

Petitioner-Appellant,

v.

PAT HURLEY, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF OHIO

O P I N I O N

Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Gerald Martin

(“Martin”) appeals the district court’s denial of his petition for a writ of habeas corpus on the basis

that the petition was filed after the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)

one-year statute of limitations had run. Martin concedes that his petition was filed late, but he

argues that the statute of limitations should be equitably tolled in order to allow his claim to go

forward. We AFFIRM the district court’s judgment dismissing the petition.

I. BACKGROUND

On the evening of June 30, 1992, Gerald Martin and his codefendants fired shots into John

H. Smith, Jr.’s (“Smith”) vehicle, killing Smith. Martin was indicted for aggravated murder with

a firearm specification on August 31, 1992. Martin claimed that he and his codefendants believed

that someone else was in the car at the time and that he did not intend to kill Smith, and the State
1

Specifically, Martin argued that an amendment to § 2903.01 of the Ohio Revised Code that

was in effect at the time of his trial should have precluded the use of the transferred-intent doctrine

in his case. The amendment at issue is § 2903.01(D), which states:

No person shall be convicted of aggravated murder unless he is specifically found

to have intended to cause the death of another. In no case shall a jury in an

aggravated murder case be instructed in such manner that it may believe that a

person who commits or attempts to commit any offense listed in division (B) of this

section [felony murder provision] is to be conclusively inferred, because he engaged

in a common design with others to commit the offense by force and violence or

because the offense and the manner of its commission would be likely to produce

death, to have intended to cause the death of any person who is killed during the

commission of, attempt to commit, or flight from the commission of or attempt to

commit, the offense. . . .

This section was effective until July 1, 1996. Martin was convicted under Section 2903.01(A),

which states, “No person shall purposely, and with prior calculation and design, cause the death of

another.”

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accordingly relied on the doctrine of transferred intent in its case against Martin. After a jury trial,

the Hamilton County Court of Common Pleas entered a sentence of life in prison plus three years.

Martin duly appealed the conviction, which was affirmed on August 24, 1994, by the state court of

appeals. Martin did not appeal this decision to the Ohio Supreme Court. Almost three years later,

in April 1997, Martin filed a pro se petition for postconviction relief on the basis of ineffective

assistance of counsel at trial. In his ineffectiveness claim, Martin argued that his lawyer did not

explain that the doctrine of transferred intent cannot be used in the context of aggravated murder and

he was thus effectively without representation at his trial.1 This petition was denied, and after

Martin’s subsequent appeal, the state court of appeals affirmed the trial court. Again, Martin did

not appeal this decision to the Ohio Supreme Court.
2

Ohio Rule of Appellate Procedure 26(B)(1) states as follows:

A defendant in a criminal case may apply for reopening of the appeal from the

judgment of conviction and sentence, based on a claim of ineffective assistance of

appellate counsel. An application for reopening shall be filed in the court of appeals

where the appeal was decided within ninety days from journalization of the appellate

judgment unless the applicant shows good cause for filing at a later time.

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In July 2001, Martin filed a pro se Rule 26(B) application to reopen the appeal.2

 The state

court of appeals denied the motion because it was filed after Rule 26(B)’s ninety-day time limitation

had expired. Martin hired Clyde Bennett II (“Bennett”) to represent him at some point prior to

November 2001, at which time Bennett filed a memorandum with the Ohio Supreme Court asking

it to find proper jurisdiction over Martin’s Rule 26(B) application. Bennett argued that Martin’s

prior counsel failed to inform Martin as to his rights pursuant to Rule 26(B). The state supreme

court dismissed the appeal for failure to raise a substantial constitutional question.

Martin hired new counsel, who assisted him in filing a petition for habeas relief with the

federal district court on January 15, 2003. The memorandum submitted in support of the petition

argued that Martin’s counsel was ineffective during his direct criminal appeal, that Martin is actually

innocent of the crime of aggravated murder, and that he is entitled to an evidentiary hearing. In

March 2004, the magistrate judge assigned to this case filed a report stating that at the latest the

AEDPA statute of limitations began running on April 10, 2000, and the time to file an appeal thus

expired on April 10, 2001. As Martin’s petition was filed almost two years after the statute of

limitations had run, the magistrate judge recommended that the petition be dismissed. The

magistrate judge also rejected Martin’s equitable-tolling and actual-innocence arguments. On June

30, 2004, the district court issued an order adopting the magistrate judge’s recommendations.
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In Richey, we held that “subsection D could not be read to vitiate the incorporation of

transferred intent in subsection A.” Richey, 395 F.3d at 675; see also State v. Sowell, 530 N.E.2d

1294, 1304 (Ohio 1988) (“[W]e hold that if one purposely causes the death of another and the death

is the result of a scheme designed to implement the calculated decision to kill someone other than

the victim, the offender is guilty of aggravated murder in violation of R.C. 2903.01(A).” (citing State

v. Solomon, 421 N.E.2d 139, 142 (Ohio 1981) (internal quotations omitted))); State v. Moorehead,

No. 95APA09-1116, 1996 WL 239643, at *4 (Ohio Ct. App. May 9, 1996) (finding the doctrine of

transferred intent to be “particularly applicable” in a case of aggravated murder). 

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At oral argument, Martin’s counsel conceded that our decision in Richey v. Mitchell, 395

F.3d 660 (6th Cir. 2005), was dispositive of the actual-innocence claim.3

 Therefore, the only

remaining issue to be decided by this court is whether to apply the doctrine of equitable tolling.

II. ANALYSIS

A. Standard of Review

When there are no issues of fact to be determined, we review de novo a district court’s

determination that equitable tolling does not apply. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir.),

cert. denied, 125 S. Ct. 200 (2004).

B. Equitable Tolling

Martin argues that we should apply the doctrine of equitable tolling to the period of time that

he was represented by Bennett and Bennett apparently did not advise him to file a federal habeas

petition. Martin bears the burden of demonstrating that he is entitled to equitable tolling. Griffin

v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). “Typically, equitable tolling applies only when a

litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond

that litigant’s control.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,

560-61 (6th Cir. 2000). In determining whether to apply the doctrine, we consider the following

factors:
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(1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack

of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s

rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s

reasonableness in remaining ignorant of the legal requirement for filing his claim.

Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir.), cert. denied, 534 U.S. 1057 (2001). “These

factors are not necessarily comprehensive and they are not all relevant in all cases.” Miller v.

Collins, 305 F.3d 491, 495 (6th Cir. 2002).

Martin first argues that this court should equitably toll his habeas claim because of Bennett’s

failure to advise him of the deadline. However, attorney error is an inadequate justification for

equitable tolling in this circuit. See Jurado v. Burt, 337 F.3d 638, 644-45 (6th Cir. 2003)

(“Generally, ‘a lawyer’s mistake is not a valid basis for equitable tolling.’” (quoting Whalen v.

Randle, 37 F. App’x 113, 120 (6th Cir. 2002))); see also Colwell v. Tanner, 79 F. App’x 89, 92-93

(6th Cir. 2003) (holding that an attorney’s “unwise” choice to file a habeas petition late was “not

grounds for tolling the statutorily mandated one-year limitations period”), cert. denied, 541 U.S. 974

(2004); Elliott v. Dewitt, 10 F. App’x 311, 313 (6th Cir. 2001) (“[A]n attorney’s mistake which

results in missing the filing deadline imposed by the AEDPA is not a basis for equitable tolling.”).

Martin also claimed that he was unaware of the AEDPA statute of limitations. However, in

a case presenting similar issues to this one, we held as follows:

Because of . . . AEDPA’s clear provisions regarding the statute of limitations, Allen

cannot claim a lack of constructive knowledge regarding the filing deadline. Even

if Allen lacked actual knowledge of the relevant provisions of AEDPA, this court has

repeatedly held that “ignorance of the law alone is not sufficient to warrant equitable

tolling.” We therefore conclude that Allen’s purported lack of actual or constructive

knowledge does not make equitable tolling appropriate.
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Allen, 366 F.3d at 403 (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)). According to

this precedent, Martin’s lack of knowledge of the filing deadline is an unpersuasive factor in

determining whether to allow equitable tolling.

Finally, Martin argues that he diligently attempted to pursue his claims. He explains that he

did not know about the transferred-intent argument for some time and that Bennett’s failure to file

the Rule 26(B) claim meant that he had to file it himself. However, Martin has offered no reason

for the delay in bringing his habeas petition: even if he still had time remaining after the Rule 26(B)

appeal was denied, almost a full year passed after the denial of that appeal and before the habeas

petition was filed. The length of time that passed and the lack of a reason for the delay undermine

Martin’s claim that he acted diligently. See, e.g., McClendon v. Sherman, 329 F.3d 490, 495 (6th

Cir. 2003) (holding that the petitioner “point[ed] to no diligent effort” and the eleven-month extra

delay was not justified); see also Miller v. Cason, 49 F. App’x 495, 497 (6th Cir. 2002) (noting that

the petitioner “did not explain why he waited three years after the conclusion of his direct appeal

before seeking collateral relief in state court”); Brown v. United States, 20 F. App’x 373, 375 (6th

Cir. 2001) (noting that the petitioner “offers no explanation for his failure to file during this period”).

III. CONCLUSION

For the reasons discussed above, we AFFIRM the district court’s judgment.