*

The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0350p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ALFRED L. DICENZI,

Petitioner-Appellant,

v.

NORMAN ROSE, Warden,

Respondent-Appellee.

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No. 04-3571

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 03-00602—Ann Aldrich, District Judge.

Submitted: July 27, 2005

Decided and Filed: August 17, 2005 

Before: MOORE and COLE, Circuit Judges; and WISEMAN, District Judge.*

_________________

COUNSEL

ON BRIEF: Carlos Warner, John T. Martin, Cleveland, Ohio, for Appellant. Stuart A. Cole,

OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION _________________

R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Alfred DiCenzi appeals the district

court’s dismissal of his habeas petition on the ground that the petition was not timely filed.

Following a guilty plea to vehicular homicide, DiCenzi was given the maximum sentence under

Ohio law, but claims he was never informed by either the trial court or his attorney that Ohio affords

those sentenced to a maximum sentence a non-waivable right to a direct appeal of their sentences.

When DiCenzi finally became aware of this right, he filed a motion for delayed direct appeal, but

this motion was denied by the Ohio appellate courts. He then filed a habeas petition in federal

district court, alleging that his constitutional rights had been violated both by the trial court when

it did not inform him of his right to appeal, and by the state appellate court when it refused to hear

his delayed appeal. The district court found that the petition was untimely, and dismissed it without

reaching the merits. Because we find that the portion of the petition relating to the Ohio appellate

courts’ decisions was timely, and because we find that the district court failed to determine

1
No. 04-3571 DiCenzi v. Rose Page 2

conclusively whether DiCenzi was diligent during the time when he claims to have been unaware

of his appeal rights, we VACATE the district court’s dismissal of the petition and REMAND for

further proceedings consistent with this opinion.

I.

On May 27, 1999, in the Cuyahoga County Court of Common Pleas, DiCenzi pleaded guilty

to aggravated vehicular homicide and aggravated vehicular assault. He was sentenced to five years’

imprisonment on the vehicular homicide count and eighteen months on the vehicular assault count,

to be served consecutively. This constituted the maximum possible sentence for these convictions,

and thus under Ohio law the sentencing judge was required to make certain specific factual findings

and inform DiCenzi of his right to an appeal of his sentence despite his guilty plea. Ohio Rev. Code

§§ 2953.08(A)(1)(b); 2953.08(A)(4). At sentencing, however, the trial judge did not inform DiCenzi

of his right to appeal his sentence. J.A. 167-72 (complete sentencing transcript). 

Eight months later, in February 2000, DiCenzi’s counsel filed a motion for judicial release

in which he argued that good behavior rendered DiCenzi eligible for probation. This motion was

denied on April 14, 2000. On March 13, 2001, DiCenzi filed a pro se motion to merge his two

convictions for sentencing purposes, to avoid duplicate punishment for the same acts. No court

appears to have acted on this motion. Then, in August 2001, DiCenzi contacted the Cuyahoga

County Public Defenders’ office (“Public Defender”), who informed him of his right to appeal a

maximum sentence. As a result, DiCenzi immediately filed a motion for leave to file a delayed

appeal of his sentence on August 23, 2001. This motion was denied by the Ohio Court of Appeals

on September 25, 2001. 

At this point, the Public Defender independently decided to investigate the case. After

examining the sentencing transcript and finding that DiCenzi had never been notified of his right

to appeal, the Public Defender accepted representation of DiCenzi and filed a motion for

reconsideration in the Cuyahoga County Court of Appeals on October 5, 2001. The motion was

denied without opinion on October 24, 2001. The Public Defender then filed a motion to file a

delayed appeal in the Ohio Supreme Court on November 16, 2001, arguing that DiCenzi had been

denied due process by the state’s failure to grant him the right to a delayed appeal when he had been

unaware of his right to appeal prior to August 2001. Though this motion was granted, the Ohio

Supreme Court later dismissed the appeal as not involving a substantial constitutional question or

a matter of great public interest. 

DiCenzi, still represented by the Public Defender, then filed a petition for writ of habeas

corpus in federal district court, alleging: (1) a Sixth Amendment violation arising from his attorney’s

failure to notify him of his appeal rights; and also three due process violations arising from (2) the

trial court’s failure to afford him the usual protections of Ohio law in imposing a maximum

sentence, (3) the trial court’s “failure to advise him of his appellate rights,” and (4) the state

appellate court’s “refus[al] to allow him to file a delayed appeal.” A magistrate judge recommended

dismissal of the petition, finding both that the petition was not timely filed and that equitable tolling

was not warranted. Over DiCenzi’s objections and after a de novo review of the record, the district

court dismissed the petition as untimely for effectively the same reasons as those found in the

magistrate judge’s recommendation, but granted a certificate of appealability as to the timeliness

issue. The Public Defender timely appealed on DiCenzi’s behalf.
No. 04-3571 DiCenzi v. Rose Page 3

II.

A. Standard of Review

Since the only issue on appeal is whether the district court properly calculated the timeliness

of DiCenzi’s habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2244(d)), we review the

district court’s interpretation of the statute de novo. See, e.g., Miller v. Collins, 305 F.3d 491, 493-

94 (6th Cir. 2002). The relevant AEDPA statute of limitations is as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(D) 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). The burden of proving that the statute of limitations has expired falls upon

the party asserting the defense; in a habeas case, this burden thus falls on the government. See, e.g., Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).

DiCenzi’s petition raised four grounds for granting a writ of habeas corpus: (1) a Sixth

Amendment violation arising from his attorney’s failure to notify him of his appeal rights; and also

due process violations arising from (2) the trial court’s failure to afford him the usual protections

of Ohio law in imposing a maximum sentence, (3) the trial court’s “failure to advise him of his

appellate rights,” and (4) the state appellate court’s “refus[al] to allow him to file a delayed appeal.”

Claims (1) through (3) deal with matters that occurred at sentencing, and claim (4) deals specifically

with a decision of the Ohio Court of Appeals. We will consider this appeal-based claim first, and

then proceed to evaluate the sentencing-based claims. 

B. Claim Based on the Ohio Court of Appeals’ Denial of Delayed Appeal

The Ohio Court of Appeals denied DiCenzi’s motion for delayed appeal on September 25,

2001. DiCenzi had 45 days from this date to continue his direct appeal in the Ohio Supreme Court,

or until November 9, 2001. Ohio Sup. Ct. R. II § 2(A)(1)(a). The Public Defender did file a motion

for reconsideration in the Court of Appeals during this time, and that motion was denied on

October 24, 2001; however, motions for reconsideration do not extend the time allowable for

petitioning the Ohio Supreme Court. Ohio R. App. P. 26(A). DiCenzi did not file a motion to

appeal in the Ohio Supreme Court until November 16, 2001, seven days after the deadline for his

direct appeal. Therefore, under 28 U.S.C. § 2244(d)(1), the AEDPA “clock” began running on
No. 04-3571 DiCenzi v. Rose Page 4

1

Because we find the petition timely even without adding 90 days for United States Supreme Court review of

the Ohio Court of Appeals’s decision, see infra, we express no opinion on whether the addition of such a 90-day period

is appropriate when one fails ever to file a direct appeal in the state’s highest court. See Abela v. Martin, 348 F.3d 164,

172-73 (6th Cir. 2003) (en banc) (tolling AEDPA clock for 90 days from final decision of a state court). But see 28

U.S.C. § 1257 (allowing Supreme Court jurisdiction only over appeals from “the highest court of a state in which a

decision could be had”). Thus we assume, arguendo, that DiCenzi’s “clock” began running on November 9, 2001, and

not 90 days later.

November 9, 2001. 28 U.S.C. § 2244(d)(1)(A) (initiating the one-year AEDPA requirement upon

the expiration of the time for seeking direct review).1

In DiCenzi’s November 16 motion, he presented, in accord with Ohio procedural rules,

reasons why the Ohio Supreme Court should hear his appeal despite the fact that the applicable time

limit for direct appeals had ended. Such a motion for delayed appeal, even if granted, does not

restart the statute of limitations, but if properly filed, it does toll the statute during the time the

motion was pending. See, e.g., Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001) (holding that

motions for delayed appeal toll the AEDPA statute of limitations under 28 U.S.C. § 2244(d)(2), but

that such motions are not part of the direct appeal for the purposes of 28 U.S.C. § 2244(d)(1)).

Accordingly, the AEDPA clock was stopped, with seven days elapsed, as of November 16, 2001,

pending the Ohio Supreme Court’s consideration of DiCenzi’s motion.

On December 19, 2001, the Ohio Supreme Court granted DiCenzi’s motion for leave to file

the appeal, and ordered the parties to brief the jurisdictional merits of the appeal. On April 3, 2002,

the Ohio Supreme Court concluded that DiCenzi’s claim did not merit Ohio Supreme Court

jurisdiction because no significant constitutional question was presented. However, the fact that the

appeal itself was ultimately denied on its jurisdictional merits does not alter the fact that DiCenzi’s

AEDPA statute of limitations was tolled during the consideration of his motion, once it was accepted

for filing. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (distinguishing between the

denial of a motion to file a delayed appeal in the Ohio Supreme Court, a state procedural decision

that would preclude tolling, and the granting of the motion to file the appeal but subsequent

dismissal on the jurisdictional merits of the case, a decision on the merits that would not preclude

tolling). The statute of limitations was thus tolled until the April 3, 2002 decision of the Ohio

Supreme Court. Further, that court’s decision not to hear DiCenzi’s appeal, like all decisions of

states’ highest courts, could have been appealed to the United States Supreme Court. Following the

April 3, 2002 decision, DiCenzi thus had an additional 90 days’ worth of tolling in order to petition

for certiorari, whether or not he actually did so. See, e.g., Abela v. Martin, 348 F.3d 164, 172-73

(6th Cir. 2003) (en banc).

Accordingly, 90 days after April 3, 2002, or as of July 2, 2002, the AEDPA clock began

running again. From this time, DiCenzi had one year minus seven days to file his federal habeas

claim, or until June 25, 2003. His habeas petition was in fact filed on April 3, 2003. Accordingly,

as least as to his claim that the Ohio Court of Appeals denied him due process when it denied his

motion for delayed appeal, DiCenzi’s petition was timely under AEDPA, since the petition was filed

83 days before the expiration of the statute of limitations. Because the district court incorrectly

determined that DiCenzi’s claim regarding the state appellate court’s decision was untimely, we

VACATE the district court’s ruling as to the timeliness of this claim, and REMAND for

consideration of the merits of the claim. 

C. Claims Based on Errors at Sentencing

DiCenzi’s three other claims, that he was (1) denied his Sixth Amendment rights when his

counsel was ineffective by not informing DiCenzi of his appeal rights; and that he was denied due

process when the district court (2) sentenced DiCenzi to an illegal sentence under Ohio law, and (3)
No. 04-3571 DiCenzi v. Rose Page 5

failed to inform DiCenzi of his right to appeal despite his guilty plea, all relate to events that took

place on June 30, 1999. Since there was no timely filed direct appeal, DiCenzi’s sentence became

final on July 30, 1999, and unless another provision of 28 U.S.C. § 2244(d)(1) applies, under 28

U.S.C. § 2244(d)(1)(A), he had one year from this date to file a habeas petition. Obviously, even

assuming that all of his later actions tolled the statute for certain periods of time, DiCenzi’s habeas

petition, filed on April 3, 2003, was not filed within one year of July 30, 1999. Accordingly, if the

statute of limitations did indeed begin running on that date, DiCenzi’s petition was not timely filed.

The main thrust of the non-equitable-tolling portion of DiCenzi’s claim is that he could not

have known about his right to a direct appeal of his maximum sentence until he spoke to the Public

Defender in the summer of 2001, and thus that the statute of limitations on these claims should have

started running only at that time, under 28 U.S.C. § 2244(d)(1)(D). This section of AEDPA starts

the statute of limitations running on “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” Id. Despite DiCenzi’s

explicit argument in his petition that he could not have reasonably known about his appeal rights

before he went to the Public Defender, the district court did not consider what diligence DiCenzi

reasonably could have exercised, but rather simply concluded that the AEDPA clock began running

on July 30, 1999, 30 days following the imposition of DiCenzi’s sentence. See D. Ct. Op. at 3-4.

DiCenzi argues that he was indeed duly diligent during the time between June of 1999 and August

of 2001, and thus that the statute should not have started running until August 2001 when he was

informed by the Public Defender that he had the right to an appeal. 

Of course, during all this time, had DiCenzi merely inquired of a court or a public defender

regarding whether he had the right to an appeal, he could have found out that he did. He argues,

however, that it is not reasonable to expect a defendant who pleaded guilty to be aware of mandatory

statutory appeal rights from the sentence imposed, especially when neither the court nor his attorney

at sentencing informed him of any such rights. In support of this argument, DiCenzi cites Granger

v. Hurt, 90 Fed. Appx. 97, 99-101 (6th Cir. Jan. 23, 2004) (unpublished opinion), wherein an Ohio

prisoner (Granger) had been told by his attorney that the attorney would appeal Granger’s

conviction. The attorney then failed to do so, and Granger did not discover this failure until he

called the attorney to check on the status of his appeal two months after the deadline for filing the

appeal had passed. The district court held that the proper date for starting the statute of limitations

was the deadline for filing a notice of appeal of his sentence, since Granger could have discovered

his attorney’s failure on that date. We reversed, holding that the district court’s decision “ignores

the reality of the prison system and imposes an unreasonable burden on prisoners seeking to appeal,”

and noting that § 2244(d)(1)(D) “does not require the maximum feasible diligence, only ‘due,’ or

reasonable, diligence.” Granger, 90 Fed. Appx. at 100 (citing Wims v. United States, 225 F.3d 186,

190 n.4 (2d Cir. 2000)); see also, e.g., Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)

(evaluating a prisoner’s due diligence in investigating trial errors, and noting the difficulties inherent

in the prison environment); Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002) (same).

Finding that “the two months that Granger waited before inquiring about his appeal was, under the

circumstances, not unreasonable,” we held that Granger had exercised due diligence and thus that

the AEDPA statute of limitations began running on the date he learned from his attorney that the

appeal had not been filed. Granger, 90 Fed. Appx. at 100. 

Accordingly, as noted by the Second Circuit,

The proper task in a case such as this one is to determine when a duly diligent person

in petitioner’s circumstances would have discovered [his right to an appeal]. After

that date, petitioner was entitled to further delay (whether in actually making the

discovery, or in acting on a previously made discovery, or for any other reason

whatsoever), so long as he filed his petition within one year of the date in which the

discovery would have been made in the exercise of due diligence.
No. 04-3571 DiCenzi v. Rose Page 6

2

The district court also relied on this statement in denying DiCenzi equitable tolling. However, because we

do not reach the equitable tolling issue, see infra, we express no opinion as to how such a prior statement should affect

an equitable tolling claim. Suffice it to note that the district court did not rely on this statement in finding that, “[a]bsent

equitable tolling, DiCenzi’s petition is untimely under AEDPA.” Of course, on remand, the district court may consider

this evidence, along with any other evidence, in determining DiCenzi’s diligence for statutory purposes. 

Wims, 225 F.3d at 190 (footnotes omitted). In the instant case, the district court simply did not

develop a record as to whether DiCenzi was duly diligent for statutory purposes. Accordingly, the

record does not reflect what information DiCenzi had between July of 1999 and August of 2001.

Indeed, 

[a]s an appellate court, we cannot say precisely when, in exercising due diligence,

[a defendant] would have discovered his [right] to appeal. This is so because the

date on which the limitations clock began to tick is a fact-specific issue the resolution

of which depends, among other things, on the details of [a defendant’s] post-sentence

conversation with his lawyer and on the conditions of his confinement in the period

after [sentencing].

Wims, 225 F.3d at 190-91 (citing Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000)

(taking into account “the realities of the prison system” in determining due diligence)); see also

cases cited supra at 5 (involving detailed factual analyses of each defendant’s circumstances).

Absent such information, we can only speculate whether DiCenzi exercised due diligence.

It is worth noting that the State relies significantly on the fact that, in his motion for delayed

appeal to the Ohio Court of Appeals, DiCenzi stated that he did “not recall having been advised,

either by counsel or by the trial judge of his appellate rights — if in fact, defendant was so advised,

he failed to comprehend the trial court’s advice in the wake of his having just received maximum

consecutive terms of imprisonment totaling 6 1⁄2 years.”2

 DiCenzi thereafter obtained a copy of the

sentencing transcript, included in the record before the Ohio Supreme Court and the district court,

in which it is clear that he was not advised of his right to appeal. Further, DiCenzi has always

maintained that he was unaware of his appeal rights — in his traverse DiCenzi was explicit in stating

that he had not been informed of his right to appeal by either the sentencing court or his counsel at

sentencing. Remand will allow the district court to determine both (a) when DiCenzi first learned

of his right to appeal, and (b) when a reasonably diligent person in DiCenzi’s position could be

reasonably expected to learn of his appeal rights. Wims, 225 F.3d at 190-91.

The burden on remand, as in all cases regarding civil statutes of limitations, will fall on the

party asserting that the limitations period has expired — here, this party is the government. See,

e.g., Griffin, 308 F.3d at 653. While it is true that we stated in Griffin that “[i]n the habeas context,

the party asserting that the statute has run will usually be able to meet this burden by pointing to

materials already before the district court, namely, by pointing out that the petition itself was filed

after the statute had run,” id., Griffin did not involve a dispute over when the statute began to run,

but instead involved a dispute over when the petition was filed. Further, the Griffin court was

careful to state only that the party asserting the defense will usually be able to meet the burden by

citing to materials already before the district court. 

Here, it is not clear when the statute began running. The State notes the long periods of time

during which DiCenzi apparently took no action, and the fact that his habeas petition was not filed

until just over four years after his sentence became final. DiCenzi highlights both the sentencing

transcript, in which there is an absence of any notice of appeal rights, and his repeated pleadings

noting that he was never informed of his right to an appeal. The district court never reached the

issue of diligence for the purposes of 28 U.S.C. § 2244(d)(1)(D), and thus did not weigh this

evidence with regard to the statutory timeliness of DiCenzi’s petition. As an appellate court, absent
No. 04-3571 DiCenzi v. Rose Page 7

factual findings below, we cannot ourselves determine what DiCenzi knew or what a reasonable

person in DiCenzi’s position might reasonably be expected to do. “We can, however, say that the

[several month period during which DiCenzi did not have some sort of motion pending that would

have tolled the statute of limitations] is not so clearly unreasonable [for a prisoner in the position

DiCenzi claims he was in] that it plainly appears from the face of appellant’s petition and supporting

papers that he is barred from habeas relief. . . . Accordingly, the district court’s dismissal of

appellant’s petition cannot stand.” Wims, 225 F.3d at 190-91. 

We therefore VACATE the judgment of the district court with regard to the sentencingbased claims, and REMAND for a determination of when a defendant in DiCenzi’s position, acting

with due diligence for AEDPA statutory purposes, would have discovered his right to an appeal.

The period of time between July 30, 1999 and this date should be added to any periods of time

thereafter when DiCenzi’s actions would have tolled the statute of limitations. If, after subtracting

this total from the time between July 30, 1999 and the filing of the petition on April 3, 2003, the

remaining time equals more than one year, then DiCenzi’s petition was not timely filed under 28

U.S.C. § 2244(d)(1)(D). DiCenzi also requests an evidentiary hearing in order to introduce

additional evidence regarding his diligence. The district court, of course, may only grant such a

hearing in a habeas case if the dictates of 28 U.S.C. § 2254(e) are satisfied, a condition that is more

properly addressed by the district court in the first instance.

D. Other Claims

DiCenzi also disputes the district court’s conclusion that he is not entitled to equitable

tolling. However, on remand, it may be found that DiCenzi was duly diligent, for statutory purposes,

for a portion of the time at issue. Such a finding could affect any equitable tolling analysis, and we

therefore need not address this issue at this time. Further, though DiCenzi does not assert that he

is actually innocent of the crime for which he was convicted, on appeal he does argue the merits of

his claim that he is somehow “actually innocent” of the sentence imposed upon him. The district

court never reached the merits of the petition, so this issue simply is not before us now.

III.

For the preceding reasons, we VACATE the district court’s dismissal of DiCenzi’s petition

and REMAND for proceedings consistent with this opinion.