N.D. Ohio Notes Split Re Whether a Petitioner Must Show that He Has Good Cause for a Delay in Filing His Habeas Petition
Per Hudach v. Money, Slip Copy, 2007 WL 1560551 (N.D. Ohio May 25, 2007):
The question of whether a petitioner must show that he has good cause for a delay in filing his habeas petition and that he has a supportable claim of actual innocence has divided the circuits.FN63 Nonetheless, the Sixth Circuit has consistently held that actual innocence is a separate, independent “gateway” by which a habeas petitioner may obtain equitable tolling of the limitations period of the statute.FN64
FN63. The Eighth Circuit in Flanders v. Graves, 299 F.3d 974 (8th Cir.2002), has concluded that a petitioner must still show he was diligent in pursuing his claims of actual innocence in addition to establishing the merits of that claim. Accord, Araujo v. Chandler, 435 F.3d 678, 682 (7th Cir.2005).
FN64. See, Harvey v. Jones, 179 F. App'x 294, 297 (6th Cir.2006) ( “In the present case, there are two arguments for equitable tolling ... If [petitioner] fails to establish actual innocence under the standard enunciated in Souter, he may still equitably toll the limitations period based on the five factors outlined by this Court in Dunlap.”).