1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0338P (6th Cir.)

File Name: 03a0338p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MARK VROMAN,

Petitioner-Appellant,

v.

ANTHONY BRIGANO, Warden,

Respondent-Appellee.

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No. 02-3258

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 99-01277—Algenon L. Marbley, District Judge.

Argued: August 1, 2003

Decided and Filed: September 22, 2003 

Before: KENNEDY, GILMAN, and GIBBONS, Circuit

Judges.

_________________

COUNSEL

ARGUED: William R. Gallagher, ARENSTEIN &

GALLAGHER, Cincinnati, Ohio, for Appellant. Stephanie

L. Watson, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONSLITIGATIONSECTION, Columbus, Ohio,

for Appellee. ON BRIEF: William R. Gallagher,

ARENSTEIN & GALLAGHER, Cincinnati, Ohio, for

2 Vroman v. Brigano No. 02-3258

Appellant. Stephanie L. Watson, OFFICE OF THE

ATTORNEY GENERAL, CORRECTIONS LITIGATION

SECTION, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Petitionerappellant Mark Vroman was convicted on one count of

murder with a firearm specification in Ohio state court.

Vroman appeals the district court’s dismissal of his petition

for a writ of habeas corpus as time-barred under the

applicable one-year statute of limitations set forth in the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2244(d). For the following reasons,

we affirm the judgment of the district court.

I.

On July 28, 1995, an Ohio jury convicted Vroman of

murder with a firearm specification. He was sentenced to a

term of fifteen years to life in prison for the murder

conviction and a term of three years for the use of the firearm

to be served consecutively with and prior to the murder

sentence. Vroman appealed his conviction to the Ohio Court

of Appeals, and on June 24, 1996, the court affirmed the

judgment of the trial court. On December 18, 1996, the Ohio

Supreme Court denied Vroman’s request for leave to appeal

and dismissed the appeal as not involving any substantial

constitutional question.

On August 11, 1997, Vroman filed a delayed application

for reopening his appeal pursuant to Ohio Appellate Rule

26(B), and the application was denied as untimely. Vroman

then filed a pro se appeal of the Ohio Court of Appeals’s

decision with the Ohio Supreme Court on October 31, 1997.

The Ohio Supreme Court dismissed Vroman’s appeal. 
No. 02-3258 Vroman v. Brigano 3

Prior to the above proceedings, on or about September 24,

1996, Vroman filed a delayed petition to vacate or set aside

his sentence. The trial court denied this post-conviction

action as untimely on November 15, 1996. Vroman appealed

and on April 15, 1997, the Ohio Court of Appeals affirmed

the trial court’s judgment. On September 2, 1997, the Ohio

Supreme Court dismissed Vroman’s subsequent appeal.

Finally, on November 12, 1997, Vroman filed a motion for

relief from judgment requesting that the trial court vacate its

November 15, 1996, decision dismissing his post-conviction

action as untimely filed. On December 31, 1997, the trial

court denied Vroman’s motion. On December 10, 1998, the

Ohio Court of Appeals affirmed the judgment of the trial

court. The Ohio Supreme Court declined to hear the case and

dismissed Vroman’s appeal on April 21, 1999. 

On November 23, 1999, Vroman, acting pro se, filed a

petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the Southern

District of Ohio. In his habeas petition, Vroman alleged

sixteen grounds for relief. The Warden, Anthony Brigano,

moved to dismiss the petition for failing to comply with the

one-year statute of limitations imposed by 28 U.S.C.

§ 2244(d). On March 19, 2001, the district court denied the

Warden’s motion to dismiss, concluding that Vroman’s

untimely Ohio post-conviction petition tolled the running of

the statute of limitations under § 2244(d)(2). The Warden

moved for reconsideration and the district court denied the

motion. Thereafter, the Warden filed a Return of Writ, and

on December 17, 2001, the district court dismissed the

petition as time-barred due to the Sixth Circuit’s decision in

Raglin v. Randle, No. 00-3322, 2001 WL 523530 (6th Cir.

May 8, 2001). Vroman moved for reconsideration, and on

January 30, 2002, the district court denied his motion.

On February 26, 2002, Vroman filed a notice of appeal and

an application for a certificate of appealability. The district

court granted a certificate of appealability on the issues of

whether the statute of limitations expired prior to filing the

4 Vroman v. Brigano No. 02-3258

instant petition and whether Vroman is entitled to an

evidentiary hearing to present evidence that his postconviction action was timely filed in state court.

II.

The dismissal of a habeas petition by the district court as

barred by 28 U.S.C. § 2244’s statute of limitations is

reviewed de novo. Cook v. Stegall, 295 F.3d 517, 519 (6th

Cir.), cert. denied, 123 S.Ct. 699 (2002). Where the facts of

the case are undisputed or the district court rules as a matter

of law that equitable tolling is unavailable, this court reviews

the decision de novo. Dunlap v. United States, 250 F.3d

1001, 1007 (6th Cir. 2001).

Under AEDPA, a prisoner has one year from the

completion of the direct review of his case to commence a

collateral attack on his conviction. 28 U.S.C. § 2244(d)(1).

This one year limitation period runs 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.

Id. Vroman’s conviction became final on March 18, 1997,

ninety days after the Ohio Supreme Court dismissed his direct
No. 02-3258 Vroman v. Brigano 5

1

Ohio Revised Code § 2953.23 permits the untimely filing of a

petition for post-conviction relief if (1) the petitioner was unavoidably

prevented from discovering the factual predicate of his claim, or (2) the

United States Supreme Court recognized a new federal or state right that

applies retroactively to persons in the petitioner’s situation and the

appeal. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.

2000). Therefore, in the absence of any tolling, Vroman had

until March 18, 1998, to file his habeas petition. 

The AEDPA limitations period may be tolled for that

period of time “during which a properly filed application for

State post-conviction relief or other collateral review with

respect to the pertinent judgment or claim is pending.” 28

U.S.C. § 2244(d)(2) (emphasis added). “The tolling provision

does not, however, ‘revive’ the limitations period (i.e., restart

the clock at zero); it can only serve to pause a clock that has

not yet fully run. Once the limitations period is expired,

collateral petitions can no longer serve to avoid a statute of

limitations.” Rashid v. Khulmann, 991 F. Supp. 254, 259

(S.D.N.Y. 1998). 

On August 11, 1997, during the relevant one-year period,

Vroman filed a delayed Ohio Appellate Rule 26(B) action and

a post-conviction petition. The petition was ultimately

dismissed by the Ohio Supreme Court on January 21, 1998.

Because Vroman filed the Rule 26(B) action 146 days after

his conviction became final, Vroman had 219 days remaining

of his AEDPA one-year statute of limitations as of

January 21, 1998. Therefore, Vroman must also receive

tolling during the time his post-conviction action remained

pending in the state courts to prevent his habeas petition, filed

on November 23, 1999, from being time barred. 

Effective September 21, 1995, Ohio amended its postconviction statute to include a time limitation period of 180

days from the date the criminal trial transcript is filed in the

appellate court for direct review, subject to several

exceptions.

1

 Ohio Revised Code § 2953.23(A). Cases in

6 Vroman v. Brigano No. 02-3258

petitioner shows by clear and convincing evidence that no reasonable fact

finder would have found him guilty. Vroman did not argue that his postconviction petition fell within either of these exceptions in state court and

does not argue that either exception applies on appeal to this court.

which a sentence was imposed prior to September 21, 1995,

were given a one-year grace period, and, therefore, Vroman’s

deadline for filing any petition seeking post-conviction relief

was September 21, 1996. Ohio Revised Code

§ 2953.21(A)(2). Because that particular date fell on a

Saturday, the actual deadline was Monday, September 23,

1996. Ohio Criminal Rule 45(A). 

According to the Ohio trial court, Vroman’s postconviction petition was filed on September 24, 1996, one day

late. The Ohio trial court concluded that Vroman’s petition

was not timely filed according to Ohio law. Vroman

appealed, arguing that his petition was timely filed because he

delivered the petition to prison authorities for mailing on

September 19, 1996, within the applicable time limit (the

“mailbox rule”). The appellate court rejected Vroman’s

argument, holding that “[a] filing is timely only if it is filed

with the court within the appropriate time limits; the jailer

does not represent the court for filing purposes.” 

Vroman then moved for relief from judgment pursuant to

Ohio Civil Rule 60(B), arguing that the clerk of court actually

received his petition on September 23, 1996, and, therefore,

his petition was timely. In support of his argument, Vroman

submitted two letters he wrote to the postmaster of the post

office that delivers mail to the Ross County Clerk of Courts.

The postmaster made handwritten notes on the letters stating

that mail is delivered to the courthouse at 12:30 p.m. on a

daily basis, and that mail is never delivered prior to 9:00 a.m.

Vroman’s petition was stamped received on September 24,

1996, at 9:04 a.m. Therefore, Vroman claimed that his

petition was received by the clerk on September 23, but was
No. 02-3258 Vroman v. Brigano 7

not stamped until September 24. The Ohio state courts

rejected Vroman’s argument.

In response to the Warden’s argument that Vroman’s

habeas petition should be dismissed as time-barred, Vroman

claimed the state courts had erroneously determined that his

post-conviction petition was untimely. The district court

deferred to the state courts’ determination that the postconviction petition was untimely, and, therefore, the district

court concluded that Vroman’s habeas petition was timebarred.

On appeal, Vroman argues that the district court erred in

determining that the statute of limitations imposed by

§ 2244(d) was not tolled by his state post-conviction filing

because his post-conviction petition was timely filed with the

Ohio trial court. The United States Supreme Court has held

that an application for post-conviction relief is “properly

filed” within the meaning of § 2244(d)(2) “when its delivery

and acceptance are in compliance with the applicable laws

and rules governing filings. These usually prescribe, for

example, . . . the time limits upon its delivery.” Artuz v.

Bennett, 531 U.S. 4, 8 (2000). Similarly, this court has held

that an application for post-conviction relief is “‘properly

filed’ when its delivery and acceptance are in compliance

with the applicable laws and rules governing filings, e.g., . . .

applicable time limits upon its delivery.” Israfil v. Russell,

276 F.3d 768, 771 (6th Cir. 2001), cert. denied, 122 S.Ct.

1985 (2002).

The timeliness of an Ohio prisoner’s post-conviction

petition is governed by state statute. Ohio Revised Code

§§ 2953.21(A)(2) & 2953.23(A). According to the Ohio

Supreme Court, a pleading is considered filed on the day it is

filed with the court. State ex rel. Tyler v. Alexander, 52 Ohio

St.3d 84 (Ohio 1990). The Ohio courts concluded that

Vroman’s post-conviction petition was not timely filed under

Ohio law. “[F]ederal courts . . . defer to a state court’s

judgment on issues of state law and, more particularly, on

8 Vroman v. Brigano No. 02-3258

issues of state procedural law.” Israfil, 276 F.3d at 771; see

also Godfrey v. Beightler, No. 02-3499, 2002 WL 31805606,

at *2 (6th Cir. Dec. 10, 2002) (stating that “federal courts

defer to the state court’s interpretation of state filing

requirements”). In Israfil, the Sixth Circuit held that

“[b]ecause state courts are the final authority on state law,

federal courts must accept a state court’s interpretation of its

statutes and its rules of practice.” 276 F.3d at 771 (citations

omitted). Therefore, the Israfil court concluded that the

district court properly deferred to the Ohio state court’s

finding as to whether the petitioner’s post-conviction motion

had been submitted according to Ohio’s timeliness

requirements. Id. at 771-72; see also Raglin, 2001 WL

523530, at *1 (holding that “untimely state collateral attacks

are not properly filed and do not toll the statute of limitations”

and therefore concluding that the petitioner’s post-conviction

petition did not toll the statute of limitations because it was

dismissed as untimely under Ohio law). Here, as in Israfil,

the district court properly concluded that Ohio’s

determination of whether Vroman’s post-conviction petition

was properly filed governs whether such action tolls the

statute of limitations under § 2244(d)(2). 

Vroman contends that the Ohio state courts’ conclusion that

his post-conviction petition was untimely is incorrect and an

unreasonable determination based on the facts presented, and

argues that this court should apply the federal mailbox rule to

his post-conviction filing. This court, however, does not

function as an additional state appellate court reviewing statecourt decisions on state law or procedure. Allen v. Morris,

845 F.2d 610, 614 (6th Cir. 1988). Federal courts are

obligated to accept as valid a state court’s interpretation of

state law and rules of practice of that state. Duffell v. Dutton,

785 F.2d 131, 133 (6th Cir. 1986). In Houston v. Lack, 487

U.S. 266, 270 (1988), the United States Supreme Court

adopted the mailbox rule in holding that when a prisoner is

acting pro se, his notice of appeal is considered “filed” under

federal law when he turns the petition over to the prison

authorities for mailing. The Ohio Supreme Court has
No. 02-3258 Vroman v. Brigano 9

expressly rejected this rule. Tyler, 52 Ohio St.3d at 85; see

also State v. Hansbro, No. 2001-CA-88, 2002 WL 1332297,

at *4 (Ohio Ct. App. June 14, 2002) (noting that Ohio courts

have “rejected a ‘prison mail rule’”). In addition, the majority

of federal circuits to consider the issue have declined to

extend the mailbox rule to the determination of filing dates

for state post-conviction applications. See Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120

S.Ct. 1564 (2000); Adams v. LeMaster, 223 F.3d 1177, 1181

(10th Cir. 2000); Webster v. Moore, 199 F.3d 1256, 1258-59

(11th Cir. 2000). But see Anthony v. Cambra, 236 F.3d 568,

575 (9th Cir. 2000) (noting that the Ninth Circuit holds that

the federal “mailbox rule applies with equal force to the filing

of state as well as federal petitions”). Accordingly, this court

will not reconsider the Ohio state courts’ determination that

Vroman’s post-conviction petition was untimely or apply the

federal mailbox rule to the present case.

In the alternative, Vroman argues that the doctrine of

equitable tolling should apply to his case. Vroman bears the

burden of demonstrating that he is entitled to equitable

tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).

The doctrine of equitable tolling is applied sparingly by

federal courts. Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000).

“Typically, equitable tolling applies only when a litigant’s

failure to meet a legally-mandated deadline unavoidablyarose

from circumstances beyond that litigant’s control.” Id. at

560-61 (citations omitted). The United States Supreme Court

has explained that “[w]e have allowed equitable tolling in

situations where the claimant has actively pursued his judicial

remedies by filing a defective pleading during the statutory

period, or where the complainant has been induced or tricked

by his adversary’s misconduct into allowing the filing

deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89, 96 (1990). However, the Court has “generally been

much less forgiving . . . where the claimant failed to exercise

due diligence in preserving his legal rights.” Id. “Absent

compelling equitable considerations, a court should not

10 Vroman v. Brigano No. 02-3258

2With regard to diligence in filing his state court post-conviction

petition, as the district court noted, three months prior to the

September 23, 1996, deadline, an Ohio appellate court expressly advised

Vroman to present his claim of ineffective assistance of trial counsel in a

petition for post conviction relief. The record does not contain any

evidence providing an explanation for Vroman’s decision to delay three

months in presenting this claim to the Ohio state courts. Therefore, the

fact that Vroman waited to petition for post conviction relief three months

extend limitations by even a single day.” GrahamHumphreys, 209 F.3d at 561. 

This court determines whether to equitably toll AEDPA’s

statute of limitations using the five-factor test set forth in

Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). See

Dunlap v. United States, 250 F.3d 1001, 1010 (6th Cir. 2001)

(applying the five-factor test set forth in Andrews). Pursuant

to Andrews, a court should consider: (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. Id. at 1008. This list of factors is not necessarily

comprehensive, and not all factors are relevant in all cases.

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

In the present case, Vroman does not claim that he lacked

either actual or constructive notice of the filing requirement.

Where the litigant does not claim lack of knowledge or notice

of the filing requirement, this court’s inquiry is focused on

examining his diligence in pursuing his rights and the

reasonableness of his ignorance of the effect of his delay. See

Andrews, 851 F.2d at 151. Vroman contends that he was

diligent in pursuing his rights because he claims that his postconviction petition was actually filed on or before the

September 23, 1996, deadline. This argument, however,

focuses on Vroman’s diligence in pursuing his rights in Ohio

state post-conviction proceedings.

2

 Vroman fails to address
No. 02-3258 Vroman v. Brigano 11

after being advised to do so demonstrates a lack of diligence in pursuing

his rights.

3

In support of his claim that he is entitled to equitable tolling,

Vroman relies on this court’s unpublished Rule 34(j) order in White v.

Curtis, No. 01-1493, 2002 WL 1752272 (6th Cir. July 26, 2002). In

White, this court held that equitable tolling applied to the petitioner’s

federal habeas petition where the petitioner’s direct appeal to the

Michigan Supreme Court would have been timely under the federal

mailbox rule. Id. Apart from the question of whether White was correctly

decided, application of the Andrews factors requires an individualized

examination of each petitioner’s showing with respect to his diligence and

knowledge. White, whose habeas petition was filed eighteen days late,

displayed far more diligence than Vroman, who filed his habeas petition

over one year after the applicable deadline.

his lack of diligence in timely filing a petition for habeas

relief. While Vroman concentrates his argument on the fact

that at most his state filing was one day late, this court must

determine whether to equitably toll Vroman’s AEDPA statute

of limitations for more than one year. 

The Ohio trial court informed Vroman on November 15,

1996, that his September 24, 1996, petition was untimely.

Therefore, when Vroman’s one-year federal habeas statute of

limitations began to run on March 17, 1997, Vroman knew

that he would not be entitled to toll the time period for his

September 24, 1996, petition unless he prevailed on appeal.

Vroman’s appeal was denied by an Ohio appellate court on

April 15, 1997, thereby informing Vroman more than eleven

months prior to his habeas filing deadline that the Ohio courts

did not consider his September 24, 1996, petition properly

filed. Vroman’s decision to proceed solely to the Ohio

Supreme Court, rather than filing his federal habeas petition

and protecting his federal constitutional rights, demonstrates

a lack of diligence.3 

The fourth factor, whether respondent was prejudiced by

the delay in filing, is irrelevant here. Absence of prejudice is

a factor to be considered only after a factor that might justify

12 Vroman v. Brigano No. 02-3258

tolling is identified. Andrews, 851 F.2d at 151. The final

factor is petitioner’s reasonableness in remaining ignorant of

the legal requirement for filing his claim. Vroman does not

argue that he was ignorant of the legal requirement for filing

his claim. Accordingly, application of the five-factor test

indicates that equitable tolling is not appropriate in this case.

The district court denied Vroman’s request for an

evidentiary hearing without discussion. This court reviews a

district court’s decision whether to hold an evidentiary

hearing for an abuse of discretion. See Lott v. Coyle, 261

F.3d 594, 602 (6th Cir. 2001). Under AEDPA, evidentiary

hearings are not mandatory. Instead, AEDPA contains

express limitations on a federal court’s discretion to grant an

evidentiary hearing. The statute provides:

(e)(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim, unless the

applicant shows that – 

(A) the claim relies on:

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable fact-finder would have found the

applicant guilty of the underlying offense.

28 U.S.C. § 2254(e). If the petitioner has not failed to

develop the factual basis of a claim in state court, the federal
No. 02-3258 Vroman v. Brigano 13

court may hold a hearing if the petitioner’s factual allegations,

if proved, would entitle him to relief. See Byrd v. Collins,

209 F.3d 486, 550 (6th Cir. 2000) (citing McMillan v.

Barksdale, 823 F.2d 981, 983-84 (6th Cir. 1987)); Rector v.

Johnson, 120 F.3d 551, 562-63 (5th Cir. 1997) (“[A] federal

habeas court must allow discovery and an evidentiary hearing

only where a factual dispute, if resolved in the petitioner’s

favor, would entitle him to relief and the state has not

afforded the petitioner a full and fair evidentiary hearing.”).

AEDPA addresses state prisoners’ federal constitutional

claims. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.

1999). Therefore, any reference to a “claim” in AEDPA is to

a federal constitutional claim. AEDPA thus permits

evidentiary hearings regarding federal constitutional claims

under limited circumstances as set forth in the statute. While

Vroman’s habeas petition sets forth federal constitutional

claims, he seeks an evidentiary hearing on a state procedural

law issue. Specifically, he requests that the district court

allow him to submit evidence to conclusively prove the state

court ruling that his post-conviction petition was untimely

was unreasonable in light of the facts presented to it. Vroman

does not request an evidentiary hearing to allow him to

present evidence regarding a federal constitutional claim.

Instead, Vroman seeks to revisit the Ohio state courts’

determination that he failed to comply with Ohio law

regarding time limits for filing a post-conviction petition. As

previously discussed, state courts are the final authority on

state law and federal courts must accept a state court’s

interpretation of its rules of practice. Israfil, 276 F.3d at 771.

Accordingly, the district court did not abuse its discretion in

denying Vroman’s request for an evidentiary hearing. 

III.

For all of the foregoing reasons, we affirm the district

court’s dismissal of the petition.