Thomas M. KEENAN, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee, 400 F.3d 417

GILMAN, J., delivered the opinion of the court. MERRITT, J. (pp. 422-26), delivered a separate opinion concurring in part and dissenting in part. SILER, J. (pp. 426-28), delivered a separate dissenting opinion. OPINION GILMAN, Circuit Judge. Thomas M. Keenan appeals the district court’s judgment that dismissed as untimely his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons set forth below, we vacate the judgment and remand the case for an evi-dentiary hearing to determine whether Keenan may avail himself of the doctrine of equitable tolling. I.

BACKGROUND Keenan is an Ohio prisoner who has been sentenced to death for the murder of Anthony Klann. The factual background surrounding the crime is extensively detailed in State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929, 935-36 (1998), but is not directly relevant to the issue before us. Procedurally, Keenan was indicted for aggravated burglary along with the kid-naping and aggravated murder of Klann on October 6, 1988. In 1989, Keenan was convicted by a jury and sentenced to death by the trial court. The Ohio Court of Appeals affirmed Keenan’s conviction and death sentence in 1990.

This conviction was reversed, however, and the case remanded for a new trial by the Ohio Supreme Court on the basis of prosecutorial misconduct. State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993). The second trial took place in 1993-94. Keenan was again convicted by the jury and sentenced to death, and the final judgment of the trial court was again affirmed by the Ohio Court of Appeals. On November 6, 1996, Keenan submitted the transcript from this second trial to the Ohio Supreme Court, thus initiating his appeal to that court.

This date is key to the issue before us, because it marks the point at which his 180-day statute of limitations for state postconviction relief began to run under Ohio Rev.Code Ann. § 2953.21. By the time that this statute of limitations expired, on May 5, 1997, Keenan had yet to file a petition for state postconvietion relief. Keenan’s second conviction was affirmed on February 25, 1998 by the Ohio Supreme Court. State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998). The United States Supreme Court denied certiorari on October 5, 1998, another key date in this case. Keenan v.

Ohio, 525 U.S. 860, 119 S.Ct. 146, 142 L.Ed.2d 119 (1998). This denial initiated the one-year statute of limitations for petitioning for federal habeas relief under 28 U.S.C. § 2244(d)(1). The controversy in the present case was precipitated by a so-called Glenn order issued by the Ohio Supreme Court on November 30, 1998. That order provided as follows: IT IS FURTHER ORDERED by the court that, pursuant to State v.

Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, a stay is granted for a period of six months, beginning October 23, 1998 and ending April 23, 1999, to allow appellant an opportunity to file, a petition for post-conviction relief. State v. Keenan, 84 Ohio St.3d 1425, 702 N.E.2d 901 (Ohio 1998) (unpublished). Significantly, Keenan’s 180-day statute of limitations granted by Ohio Rev.Code Ann. § 2953.21 had already expired. Keenan filed a petition for state postcon-viction relief in the Cuyahoga County Court of Common Pleas on March 26, 1999.

This petition was well within the six-month time frame set out by the Ohio Supreme Court in the Glenn order. All of the parties agree, however, that this petition was filed almost two'years after the expiration (on May 5, 1997) of the 180-day statute of limitations specified in Ohio Rev. Code Ann. § 2953.21. The Ohio trial court denied the petition on its merits in 1999.

On appeal, the Ohio Court of Appeals affirmed the trial court’s denial, but based its decision on the ground that Keenan’s petition was untimely under Ohio Rev.Code Ann. § 2953.21, and that Keenan had failed to meet any of the statute’s exceptions for his late filing. State v. Keenan, No. 77480, 2001 WL 91129, at *3 (Ohio Ct.App. Feb. 1, 2001) (unpublished). The Ohio Supreme Court denied leave for a discretionary appeal in State v. Keenan, 92 Ohio St.3d 1429, 749 N.E.2d 756 (Ohio 2001) (unpublished).

On September 7, 2001, almost two years after the one-year statute of limitations under 28 U.S.C. § 2244(d)(1) had expired, Keenan filed a notice of intent to file a § 2254 petition with the federal district court. The district court ordered the parties to submit a procedural timeline to determine whether Keenan’s state post-conviction proceedings had tolled the federal statute of limitations. Keenan filed his federal petition in November of 2001. In January of 2002, the Warden filed a motion to dismiss on the basis, of the statute of limitations.

She argued that since the Court of Appeals had ruled that Keenan’s state postconviction relief petition was time-barred under Ohio law, the federal petition was also time-barred because the petition for state postconviction relief could not have tolled the federal statute of limitations under 28 U.S.C. § 2244(d)(2). The district court agreed with the Warden’s position and dismissed Keenan’s petition as time-barred. It also found that Keenan had not demonstrated a basis for equitable tolling, nor had he demonstrated that he could avail himself of any actual-innocence exception to. the limitations period.

The .court, however, granted a certificate of appealability on the timeliness issue. Keenan also filed a motion to alter or amend the record, arguing that the district court should have certified three questions relating to the timeliness of his petition to the Ohio Supreme Court. The district court denied the motion, but granted a certificate of appealability as to the issues raised within the motion. Keenan’s appeal under these certifications is now before us. II. ANALYSIS The district court’s decision to deny a writ of habeas corpus is reviewed de novo. Allen v.

Yukins, 366 F.3d 396, 399 (6th Cir.2004). “[W]here the facts are undisputed and the district court decides as a matter of law that equitable tolling does not apply, this court reviews the district court’s decision de novo.” Id. at 401. However, “[t]he petitioner bears the burden of demonstrating that he is entitled to equitable tolling.” Id. (quoting McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir.2003)). Keenan argues at length that his petition for state postconviction relief was indeed timely filed. For the purposes of Keenan’s petition for federal habeas relief, this is the central issue before us.

There is a one-year limitations period during which a state prisoner may file for a writ of habeas - corpus in federal court. 28 U.S.C. § 2244(d)(1). In Keenan’s case, the statute of limitations began to run on October 5, 1998, the date that the United States Supreme Court denied certiorari and his conviction became “final” under the statute. See Clay v. United States, 537 U.S. 522, 528 n. 3, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). Under ordinary circumstances, Keenan would have had until October 5, 1999 to file for relief in federal district court. He did not file, however, until November 21, 2001.

Nonetheless, “[t]he time during which a properly filed application for State post-conviction or other collateral review .... is pending shall-not be counted” toward the limitations period. 28 U.S.C. § 2244(d)(2). “[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, ... time limits upon its delivery.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (emphasis in original).

In Keenan’s case, if his petition for state postconviction relief had been “properly filed,” the federal one-year period to file under 28 U.S.C. § 2244(d)(1) would have been tolled, thus rendering timely Keenan’s federal petition. We are unable, however, to reach a conclusion on the timeliness issue at this time. Even if Keenan’s petition for state postconviction relief was improperly filed, he may be able to proceed on the basis of his equitable-tolling argument. “Equitable tolling is permissible under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) [28 U.S.C. § 2254], although rare.” King v.

Bell, 378 F.3d 550, 553 (6th Cir.2004). Our focus on AEDPA causes us to respectfully disagree with the dissent’s statement that “we are asked to toll the statute of limitations under Ohio law, after the Ohio Court of Appeals has determined that the petition was untimely.” (Dissenting Op. at 427) To the contrary, the application of equitable tolling is a question of federal law. Our present discussion impacts only Keenan’s filing for federal habe-as relief, not the timeliness of his petition for state postconviction relief.

In essence, the doctrine of equitable tolling allows federal courts to toll a statute of limitations 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). This circuit has adopted a straightforward test for analyzing equitable-tolling claims.

The factors to be considered are “(1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiffs reasonableness in remaining ignorant of the notice requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988). Furthermore, these factors “are not necessarily comprehensive or always relevant; ultimately every court must consider an equitable tolling claim on a case-by-case basis.” King, 378 F.3d at 553.

In the present case, the Ohio Supreme Court issued its Glenn order on November 30, 1998, a year and a half after Keenan’s time for filing for state postconviction relief had expired under Ohio Rev.Code Ann. § 2953.21. Keenan, however, still had over 10 months from that point in which to file for habeas relief in federal district court. But, for reasons impossible to determine from the record before us, he chose to file for postconviction relief not in federal court — which was still a venue properly available to him — but in state court.

Had he instead filed a petition for habeas relief in federal court, the state would have been unable to argue, as it does now, that his petition is barred by the statute of limitations. The key question for the purposes of equitable tolling, therefore, is why Keenan filed for state postconviction relief, as opposed to federal habeas relief, on March 26, 1999. If Keenan indeed relied on the literal language of the Ohio Supreme Court’s Glenn order in structuring his legal strategy, then his argument for equitable tolling might be very strong. For example, the petitioner in King v.

Bell, 378 F.3d 550 (6th Cir.2004), was prevented from filing a timely federal habeas petition because of governmental delay in providing him with the trial transcript. In all other respects, however, the petitioner had completely complied with the court-approved timetable. This court applied the doctrine of equitable tolling and concluded that the petitioner “had no reason to anticipate any procedural difficulties: he had complied with the court-approved

schedule ... and with the court’s original order to include all his arguments in one petition.” Id. at 553. Indeed, based on the evidence before us, Keenan might have reasonably viewed the Ohio Supreme Court’s order as granting him extra time to properly file a petition for state postconviction relief. He might have assumed that any time spent pursuing this avenue would toll his federal statute of limitations. Thus, given the Glenn order, he might have believed that filing for state postconviction relief would not prevent him from later filing for federal habeas relief.

The record before us, however, contains no mention of Keenan’s motivation in filing for state postconviction relief instead of federal habeas relief. We cannot determine with any certainty whether he relied on the Glenn order when deciding to file for state postconviction relief. Without more information, we cannot ascertain if Keenan may avail himself of equitable tolling. Whether this case presents one of those rare occasions in which equitable tolling under AEDPA is proper is an issue appropriately handled by the district court in the course of an evidentiary hearing.

In so, remanding, we note that the district court must consider the “(1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiffs reasonableness in remaining ignorant of the notice requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988).

Keenan might claim that he did indeed rely on the Glenn order in postponing his claim for federal habeas relief, but the district court must then decide whether such a reliance, in light of all the Andrews factors, was reasonable. The answer to this question, we believe, will determine whether there is merit to Keenan’s argument that equitable tolling should be applied to the case before us. III. CONCLUSION For all of the reasons set forth above, we VACATE the judgment of the district court and REMAND the case to the district court for an evidentiary hearing in accordance with this opinion.