NOT RECOMMENDED FOR PUBLICATION File Name: 06a0301n.06 Filed: May 2, 2006
No. 04-2487 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Marcus Harvey, Petitioner-Appellant,

v. Kurt Jones, Warden, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: KEITH, MERRITT, and DAUGHTREY, Circuit Judges.
MERRITT, Circuit Judge. Petitioner Marcus Harvey, a Michigan state prisoner, appeals from the district court’s dismissal of his petition for a writ of habeas corpus. The district court concluded that Harvey’s petition was barred by th e one-year statute of limitations imposed by the Antiterrorism and Effective D eath Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). Harvey asserts that the one-year statute of limitations should be equitably tolled either (1) because Harvey has shown that he is actually i nnocent of the crime for which he was convicted, or (2) because, as

a pro se litigant, he reasonably interpreted the one-year statute of limitations to commence at the conclusion of his state collateral proceedings even though his state collateral proceedings commenced after the statute of limitations had expired. For the reasons set forth below, we AFFIRM the judgment of the district court.No. 04-2487 Harvey v. Jones

1 The state trial court gave the following instruction on self-defense: First, at the time of the act the defenda nt must honestly believe that he is in danger of being killed or of receiving serious bodily harm. If he so believes, he may immediately act and defend himself even to the extent of taking a human life if necessary. Although it may now turn out that the appearances were false and that he was mistaken as to the extent of the real danger, he is to be judged by the circumstances as they appeared to him at the time of the act. Second, the degree of danger which must be feared is serious bodily harm or death. A person is not justified in killing or inflicting great bodily injury upon -2- I. Background Harvey admits to killing Wilbert Reid on April 12, 1990, but claims he did so in self-defense. During his trial, Harvey testified that he went to Reid’s apartment on the evening of April 11th to smoke crack cocaine and to drink alcohol. While they were watching a movie, Reid began removing his clothing and touching Harvey. Harvey repeatedly asked Reid to stop and attempted to leave the apartment, but Reid prevented him from leaving and threatened him with a knife. When Harvey resisted Reid’s demands for sex, Reid pushed him and slashed at him withthe knife. A struggle ensued, and at some point during the struggle, Harvey grabbed the knife and repeatedly stabbed Reid. Harvey then bound Reid’s wrists and ankles with a cord. Reid subsequently died of his injuries. Harvey was tried before a jury on first degree murder charges in October of 1990. On October 29, 1990, the Michigan trial court charged th e jury on the question of self-defense, the only defense asserted by Harvey at his trial. The c ourt gave a detailed instru ction on self-defense, but it did not instruct the jury that a defendant may lawfully use deadly fo rce in self-defense to resist an imminent rape. 1 At the end of the court’s instruction, th e court asked, “Are both sides satisfied withNo. 04-2487 Harvey v. Jones

another in order to protect himself from wh at appears to be slight or insignificant injury. In deciding whether at the time the defendant feared for his life or safety, you should consider all of the surrounding circumstances: The condition of the parties, including their relative strength, whether the other party was armed with a dangerous weapon, or had other means to injure the defe ndant, the nature of the threat or attack of the party, previous acts of brutality orthreats of the other party of which the defendant was aware. Third, the act or acts taken by the defendant must have appeared to the defendant at the time to be immediately necessary. A person is justified in using only such an amount of force as may appear necessary at the time to defend himself from danger. In considering whether the degree of force appeared to be necessary, you should consider the excitement of the moment and what alternatives the defendant knew existed. A defendant in a st ate of excitement is not held to fine distinctions of judgment about how much force is necessary for him to use to protect himself. The law requires a person to avoid using deadly force if he can safely do so. If the defendant could have safely retreatedbut did not do so, his failure to retreat is a circumstance which you may consider togeth er with all of the other circumstances in determining whether he went further in repelling the danger that [sic] he was justified in so doing. . . . However, if the defendant believed that he was in immediate danger of death or serious bodily harm and that deadly fo rce was immediately necessary to repel such danger, he was not required to retreat or toconsider whether he could safely retreat. He was entitled to stand his ground and use such force as he believed immediately necessary to protect his person. The defendant is not required to prove th at he acted in lawful self-defense. The prosecution has the burden of proof of guilt beyond a reasonable doubt, and this includes the responsibility of proving a defendant was not acting in self-defense. (J.A. at 255.) -3- the charge?” Harvey’s defense counsel, Mr. Pessi na, answered, “Defense is satisfied, Your Honor.” (J.A. at 259-60.) The jury then returned a verdict of guilty of sec ond degree murder, and the defendant was sentenced to a thirty to fifty year term of imprisonment. The Michigan Court of Appeals affirmed Harvey’s conviction, and the Michigan Supreme Court denied his application for leave to appeal on July 30, 1993. See People v. Harvey , 505 N.W.2d 584 (Mich. 1993).No. 04-2487 Harvey v. Jones

-4- Five years later, in September 1998, Harvey f iled a petition for post-conviction relief. This petition was denied. People v. Harvey , No. 90-04921-01 (Wayne County Cir. Ct. Apr. 21, 1999). The Michigan Court of Appeals dismissed the app lication for leave to appeal the order denying postconviction relief for failure to pursue the case in conformity with the applicable court rules. People v. Harvey , No. 226504 (Mich. Ct. App. Oct. 11, 2000). The Michigan Supreme Court denied leave to appeal because the application was not timely filed. Harvey then filed a mo tion for reconsideration, which the state trial court construed as a successive petition for post-conviction relief. This motion was denied. People v. Harvey , No. 90- 04921-01 (Wayne County Cir. Ct. Feb. 27, 2001). The Michigan Court of Appeals dismissed the application for leave to appeal on the ground that th e court lacked jurisdiction to review the denial of a second petition for post-conviction relief. People v. Harvey , No. 235736 (Mich. Ct. App. Aug. 22, 2001). On April 29, 2002, the Michigan Supreme C ourt denied Harvey’s application for leave to appeal. People v. Harvey , 643 N.W.2d 575 (Mich. 2002). On April 8, 2003, Harvey filed a pro se petition for a writ of habeas corpus in the Eastern District of Michigan. The district court dismissed Harvey’s petition as time-barred by the one-year statute of limitations established by 28 U.S.C. § 2244(d)(1). Harvey timely appealed, and we granted a Certificate of Appealability on the following issue: whether his petition for a writ of habeas corpus was barred by the one-year statute of limitations.
II. Pursuant to AEDPA, a state prisoner claiming imprisonment in violation of the laws or Constitution of the United States has one year from the completion of direct review of his case toNo. 04-2487 Harvey v. Jones

-5- file for federal habeas relief. See 28 U.S.C. § 2244(d)(1). For those prisoners, like Harvey, whose state conviction became final prior to AEDPA’s effective date, the statute of limitations expires one year from the effective date, on April 24, 1997. See Austin v. Mitchell , 200 F.3d 391, 393 (6th Cir. 1999), overruled on other grounds by Cowherd v. Million , 380 F.3d 909 (6th Cir. 2004). As Harvey failed to file his petition prior to this date, and no state post-conviction or collateral review proceeding was pending during this time to toll the statute of limitations, Harvey’s habeas corpus petition was filed outside the applicable statute of limitations. Although he concedes that his petition was untimely, Harvey contends that he is entitled to equitable tolling of the statute of limitations. “Because AEDPA’s one-year statute of limitations is not jurisdictional, a petitioner who misses the dead line may still maintain a viable habeas action if the court decides that equitable tolling is appropriate.” Allen v. Yukins , 366 F.3d 396, 401 (6th Cir. 2004) (citation omitted). In the present case, there are two arguments for equitable tolling of the limitations period. First, in Souter v. Jones , 395 F.3d 577, 602 (6th Cir. 2005), this Court held that “equitable tolling of the statute of limitations ba sed on a credible showing of actual innocence is appropriate.” If Harvey fails to establish actual innocence under the standard enunciated in Souter , we may still equitably toll the limitations period ba sed on the five factors outlined by this Court in Dunlap v. United States , 250 F.3d 1001 (6th Cir. 2001). A.
In Souter , this Court held that actual innocence is grounds for equitable tolling of AEDPA’s one-year statute of limitations. Relying on Schlup v. Delo , 513 U.S. 298 (1995), we held that “where an otherwise time-barred habeas petitioner can demonstrate that it is more likely than notNo. 04-2487 Harvey v. Jones

-6- that no reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims.” Souter , 395 F.3d at 602. To establish actual innocence, a habeas petitioner must support his allegations of constitutional error “with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness account s, or critical physical evidence -- that was not presented at trial.” Schlup , 513 U.S. at 324. Harvey asserts that he is actually innocent and that his due process rights were violated because his conviction was based on jury instructions that failed to inform the jury, as required by Michigan law, that force, even deadly force, may be used to repel an imminent sexual assault. To support his argument of actual innocence, Harvey relies on Barker v. Yukins , 199 F.3d 867 (6th Cir. 1999). In Barker , we reviewed the Michigan Supreme Court’s decision in People v. Barker , 468 N.W.2d 492 (Mich. 1991), finding that the trial court erre d in refusing to instruct the jury that deadly force may be used to resist an imminent sexual assault. The Michigan Supreme Court, however, found that the error was harmless because no reas onable juror would have believed the petitioner’s claim of self-defense. When the Sixth Circuit reviewed the challenged state court decision, our Court held that the state trial court’s error in failing to specifically in struct the jury that deadly force may be used to stop an imminent rape “had a substantial and injurious effect or influence in determining the jury’s verdict.” Barker , 199 F.3d at 872-74. We reasoned that the error was not harmless because the given instruction on self-defen se simply stated that the defendant is entitled to use deadly force when he is in danger of death or bodily harm, “leav[ing] the door open for a juror to decide that forcible rape in a given case w ould have caused neither death nor great bodily harm.”No. 04-2487 Harvey v. Jones

-7- Id. at 873. We also ruled that the Michigan Supreme Court’s finding of harmless error violated the petitioner’s due process right to present a full defense and the right of trial by jury. We reasoned that the instructions given undermined the petitioner’s defense because a juror may have reasonably interpreted the instructions to require the petiti oner to demonstrate both that a rape was imminent and that rape would have led to death or serious bodily injury. Michigan law, however, requires only that a defendant who used self-defense to resi st an imminent rape demonstrate that a rape was imminent. Id. at 875. We further reasoned that the Mi chigan Supreme Court improperly invaded the province of the jury because the court necessarily weighed the evidence and made credibility determinations in determining that the erroneous jury instruction was harmless. Id. at 874-75. Contrary to Harvey’s contentions, our decision in Barker does not constitute “new evidence” of innocence, see Schlup , 513 U.S. at 324 (requiring petitioner to present new reliable evidence, such as exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence, to establish actual innocence), and Harvey has o ffered no such evidence in support of his claim of actual innocence. Harvey does not claim that new evidence shows he is factually innocent of killing Wilbert Reid. Rather, he claims thathe is innocent under our decision in Barker because the jury was erroneously instructed on self-defense and we have no way of knowing what effect the erroneous instruction had on the verdict. However, Harvey’s challenge to the jury instructions rests upon asserted legal innocence. See Ellis v. Hargett , 302 F.3d 1182, 1186 n.1 (10th Cir. 2002) (finding that the actual innocence exception did not apply to petitioner’s claim that he is legally innocent because his conduct was justified by the doc trine of self-defense, on which the jury was not accurately instructed); Beavers v. Saffle , 216 F.3d 918, 923 (10th Cir. 2000) (rejecting asNo. 04-2487 Harvey v. Jones

-8- arguments going to legal innocence petitioner’s claim that he was not guilty of first degree murder because he was intoxicated and acted in self-defense); Jones v. Hanks , 1997 WL 355515, at *2 (7th Cir. June 24, 1997) (unpublished opinion) (finding th at petitioner’s assertion that he was innocent because his conviction was based on erroneous jury instructions merely raised a claim of legal innocence); Williams v. Delo , 82 F.3d 781, 784 (8th Cir. 1996) (holding that petitioner’s challenge to jury instructions, in light of some new cases, did not demonstrate his actual innocence because petitioner “only asserts legal innocence, not actual innocence”); Canaan v. Davis , 2003 WL 118003, at *30 (S.D. Ind. Jan. 10, 2003), rev’d in part on other grounds , Canaan v. McBride , 395 F.3d 376 (7th Cir. 2005) (holding that petitioner’s challenge to jury instructions did not demonstrate his actual innocence because it rested upon asserted “legal error”); Fleming v. Olson , 1998 WL 34093762, at *5 (S.D.W. Va. Oct. 14, 1998) (unpublished opinion) (“[E]ven if the [jury] instruction was erroneous, it resulted in legal error and is therefore irrelevant to our review on a claim of actual innocence.”). The Supreme Court has made clear that the term “actual innocence” means factual , as opposed to legal , innocence. Sawyer v. Whitley , 505 U.S. 333, 339 (1992). Because he has no new evidence with which to demonstrate that he is factually innocent of the crime for which he was convicted, Harvey has not established that he is entitled to equitable tolling based on actual innocence.
B. Having concluded that the actual innocence excep tion to the statute of limitations articulated
in Souter does not warrant equitable tolling in the present case, we turn to Harvey’s argument for equitable tolling based on the five factors outlined in Dunlap v. United States . In determiningNo. 04-2487 Harvey v. Jones

-9- whether a petitioner for a writ of habeas corpus is entitled to equitable tolling, we consider the following five factors: (1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap , 250 F.3d at 1008. By satisfying the five Dunlap factors, a petitioner demonstrates good cause for the procedural default. Souter , 395 F.3d at 588. We have st ated, however, that “[t]hese factors are not necessarily comprehensive and they are not all relevant in all cases. Ultimately, the decision whether to equitably toll a period of limitations must be decided on a case-by-case basis.” Miller v. Collins , 305 F.3d 491, 495 (6th Cir. 2002) (citing Cook v. Stegall , 295 F.3d 517, 521 (6th Cir. 2002)). Upon consideration of the Dunlap factors, we conclude that Ha rvey has failed to demonstrate that he is entitled to equitable tolling. Harvey firs t contends that he is entitled to equitable tolling because he was unaware that AEDPA’s statutory period applied to his case. This argument is without merit because ignorance of th e law, even for an incarcerated pro se petitioner, “is not sufficient to warrant equitable tolling.” Allen , 366 F.3d at 403 (citing Rose v. Dole , 945 F.2d 1331, 1335 (6th Cir. 1991)); Warren v. Lewis , 365 F.3d 529, 532 n.2 (6th Cir. 2004). Neither is a petitioner’s unfamiliarity with the legal process nor his lack of education. See, e.g., Cobas v. Burgess , 306 F.3d 441, 444 (6th Cir. 2002); Felder v. Johnson , 204 F.3d 168, 171 (5th Cir. 2000); Turner v. Johnson , 177 F.3d 390, 392 (5th Cir. 1999).No. 04-2487 Harvey v. Jones

-10- Harvey also asserts that he is entitled to equ itable tolling because he mistakenly believed that the one-year limitations period does not commence until after both direct review and post-conviction review have been exhausted. Harvey argues th at this mistake was reasonable given the numerous district courts holding that the one-year statute of limitations imposed by § 2244(d)(1) does not commence until the conclusion of state post-conviction proceedings. See Erdman v. Tessmer , 69 F. Supp. 2d 955, 959 n.4 (E.D. Mich. 1999); Martin v. Jones , 969 F. Supp. 1058, 1061 (M.D. Tenn. 1997); Valentine v. Senkowski , 966 F. Supp. 239, 241 (S.D.N.Y. 1997); Parisi v. Cooper , 961 F. Supp. 1247, 1248-49 (N.D. Ill. 1997). Harvey’s argumen t is without merit since “even reasonable mistakes of law are not a ba sis for equitable tolling.” Williams v. Sims , 390 F.3d 958, 963 (7th Cir. 2004). Moreover, Harvey could not have reasonabl y remained ignorant of the date on which the statute of limitations commences until 2003 because our decision inPayton v. Brigano , 256 F.3d 405 (6th Cir. 2001), informed Harvey that the limitations period begins to run upon conclusion of direct review. Harvey, in other words, had constructive knowledge that the one-year statute of limitations begins to run from the conclusion of direct review through a published opinion of this
Court. See also McClendon v. Sherman , 329 F.3d 490, 492 (6th Cir. 2003). In light of the Dunlap factors, Harvey has not met his burden to demonstr ate entitlement to equitable tolling of the statute of limitations. III. Conclusion For all of the reasons set forth above, we AFFIRM the judgment of the district court.