Habeas corpus; Timeliness under 28 USC § 2244(d)(1)(D); “Diligence”; Johnson v. United States; DiCenzi v. Rose; Shorter v. Richard (Unpub. 6th Cir.); “Necessary factual predicate”; Smith v. Meko (Unpub. 6th Cir.)

The court held that the district court erred by dismissing petitioner-Sexton’s habeas petition as untimely where he filed it within one year of the Ohio appeals court’s order denying his application for leave to file a delayed appeal. Sexton filed a direct appeal from his murder and robbery conviction almost 20 years after he was confined, based on an irregularity in Ohio law that was not known to him at the time of his conviction. The Ohio Court of Appeals rejected his appeal as untimely, and the Ohio Supreme Court declined jurisdiction. Three months later, he filed for habeas relief, claiming that the Ohio Court of Appeals denied him due process and equal protection by refusing to let him file a late direct appeal. The district court ruled that his habeas petition was untimely under § 2244(d)(1), which contains a one-year limitation period for state prisoners to file an application in federal court for habeas relief. In this case, the date calculation began to run on the “‘date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.’” Sexton argued that the relevant date was that on which the state appeals court denied his application for leave to file a delayed appeal, which would make his habeas petition timely. The state argued that he failed to “diligently pursue” his rights up to that point so his petition was untimely. The court held that the state appeals court’s denial order was “a necessary factual predicate” for his due process and equal protection claim; thus, because he filed his petition within one year of the order’s entry, his claim was timely under § 2244(d)(1)(D). Accordingly, it remanded the case to the district court for consideration on the merits.