Petition for Writ of Certiorari — Lavelle Eugene Marks, Petitioner v. Russ Rurka, Acting Warden

No.

IN THE

SUPREME COURT FOR THE UNITED STATES

LAVELLE EUGENE MARKS,

Petitioner,

-vs-

RUSS RURKA, (Acting Warden),

Respondent.

PETITIONER'S APPENDIXES

Submitted by:

Lavelle Eugene Marks, #499291

Petitioner In Propria Persona

Lakeland Correctional Facility

141 First Street

Coldwater, Michigan 49036

Dated: 4/15/26

APPENDIX CONTENT

Items:

Pages:

US Court of Appeals for the Sixth Circuit rehearing Order on 2/4/26.............................. 1a to 4a

US District Court Order denying the Habeas Petition on 8/19/25 ...... ................... ......5a to 23a

US Court of Appeals for the Sixth Circuit Order on 12/11/23 ..................................... 24a to 27a

o

f--------- -

No. 25-1835

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LAVELLE EUGENE MARKS,

Petitioner-Appellant,

v.

RUSSELL RURKA, Acting Warden,

Respondent-Appellee.

Feb 4, 2026

KELLY L. STEPHENS, Clerk

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Before: MURPHY, Circuit Judge.

Lavelle Eugene Marks, proceeding pro se, appeals the district court’s dismissal of his

petition under 28 U.S.C. § 2254. We construe Marks’s notice of appeal as an application for a

certificate of appealability. Marks also moves for the appointment of counsel. We deny the

ji

application and motion because Marks’s application is untimely. See 28 U.S.C. § 2244(d)(1).

Marks pleaded guilty to second-degree murder, and the trial court sentenced him to thirtyfive to seventy years in prison. See Marks v. Davis, 504 F. App’x 383, 384-85 (6th Cir. 2012).

Michigan state courts rejected Marks’s attempts to withdraw his plea. Id. at 385. Marks then

turned to the federal courts, but the district court denied his habeas petition. Id. at 384-85. We

affirmed. Id. at 387.

(

Years later, Marks acquired an affidavit from James McNeely, a recently released felon

(

-who-had-been4neareerated-with-Marks^JPhe-affidavitTdated- January-14r2020rclaimed-that-Mar-ks---was innocent. So on September 23, 2020, Marks moved the state trial court for relief from its

judgment based on that newly discovered evidence. The trial court denied relief. And the

Michigan Court of Appeals and Michigan Supreme Court both denied Marks leave to appeal. See

People v. Marks, 985 N.W.2d 830 (Mich. 2023) (mem.). Marks moved the Michigan Supreme

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-2Court to reconsider, and it denied that motion on May 30, 2023. People v. Marks, 990 N.W.2d

352 (Mich. 2023) (mem.).

On July 27, 2023, Marks moved this court for authorization to file a second or successive

habeas petition based on the McNeely affidavit. We granted the motion on December 11, 2023.

And on March 10, 2024, Marks filed this second habeas petition in the district court. Marks raised

as grounds for relief that the prosecutor suppressed McNeely’s recorded interview, his counsel

rendered ineffective assistance by not obtaining the interview, he is actually innocent, and he was

improperly forced to pay full restitution. The district court dismissed the petition as untimely and

declined to issue a certificate of appealability.

To obtain a certificate of appealability, a petitioner must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court rejects apetition

on procedural grounds, the petitioner must also show “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

All reasonable jurists would find that Marks’s habeas petition is untimely. The limitations

period began running, at the latest, on January 15,2020, the day after McNeely signed his affidavit.

See 28 U.S.C. § 2244(d)(1)(D); Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 460, 462

n.l (6th Cir. 2012). Marks filed his petition for state post-conviction reliefon September 23,2020,

eight months after he discovered the evidence.

The court can assume that Marks’s state

post-conviction petition tolled the deadline. See 28 U.S.C. § 2244(d)(2); In re Hanserd, 123 F.3d

922, 934 (6th Cir. 1997).

And although the district court held that Marks’s motion for

authorization to file a second-or-successive petition in our court did not toll the statute of

limitations, his case does not require an answer to that question. The court thus can assume that

the statute of limitations was tolled during this period too. But Marks’s petition is still untimely

absent further tolling or an equitable exception to the limitations period. Fifty-eight days elapsed

between the Michigan Supreme Court’s denial of reconsideration on May 30, 2023, and Marks’s

filing of his motion for authorization on July 27, 2023. And another ninety days elapsed between

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-3our grant of the motion for authorization on December 11, 2023, and Marks signing his habeas

petition on March 10,2024. Combined with the initial 252-day delay, Marks filed his petition 400

days after he discovered McNeely’s affidavit: thirty-five days too late.

No reasonable jurist would find that Marks is entitled to additional equitable tolling.

Equitable tolling kicks in only when petitioners show that they have been pursuing their rights

diligently and that an extraordinary circumstance prevented them from timely filing. Holland v.

Florida, 560 U.S. 631, 649 (2010). Marks argues for equitable tolling based on his ignorance of

the limitations period, his lack of legal assistance, library closures, mail delays, his difficulty

obtaining copying services, and the COVID-19 pandemic.

But we have previously held a

prisoner’s pro se status, ignorance of the law, and lack of access to a law library are not the kind

of extraordinary circumstances that call for equitable tolling. See Keeling, 673 F.3d at 464; Hall

v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 752 (6th Cir. 2011); Sloan v. United States, 2023

WL 6296602, at *2 (6th Cir. Mar. 31, 2023) (order). That is especially true here given that Marks

discovered the new evidence four years before the limitations period expired.

Nor would reasonable jurists debate the district court’s conclusion that Marks is not entitled

to a miscarriage-of-justice exception to the limitations period. To qualify for the exception, Marks

needs to show that, in light of the new evidence, it is more likely than not that no reasonable juror

would have found him guilty. McQuiggin v. Perkins, 569 U.S. 383, 394-95 (2013); House v. Bell,

547 U.S. 518, 536-37 (2006). McNeely’s affidavit states that, while he was at Marks’s apartment

with Marks, Glenn Turner, and the victim, Marks and the victim began arguing about drugs. Marks

punched the victim several times before the men shook hands and apologized to each other. Turner

then hit the victim in the head with a wooden statue and tried to hit the victim again, but Marks

stopped him. Turner then told McNeely and Marks that he would kill them or their families if they

snitched on him.

Reasonable jurors would doubt the veracity of McNeely’s affidavit. See House, 547 U.S;

at 538. The affidavit is unreliable because McNeely is a convicted felon, he was in prison with

Marks, and he did not provide his statement to Marks for over 15 years after the murder (despite

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-4allegedly telling his story to the prosecutor before Marks’s trial). See Davis v. Bradshaw, 900 F.3d

315, 326 (6th Cir. 2018). McNeely’s affidavit is also contrary to an affidavit that Marks filed with

his first habeas petition. In that affidavit, Robert Johnson claimed that Turner admitted to attacking

the victim with the wooden statue after Marks had left the apartment. Plus, McNeely’s affidavit

is inconsistent with the medical examiner’s conclusion that the victim’s cause of death was

multiple blows to the head with an object with a sharp edge—not the single blow McNeely

described. Considering “all the evidence,” Marks has not shown that “any reasonable juror would

have reasonable doubt.” House, 547 U.S. at 538 (citation omitted).

Accordingly, Marks’s application for a certificate of appealability and motion to appoint

counsel are DENIED.

ENTERED BY ORDER OF THE COURT

Kelly L. S\ej»hens, Clerk

4a

United States Court of Appeals for the Sixth Circuit

U.S. Mail Notice of Docket Activity

The following transaction was filed on 12/29/2025.

Case Name: Lavelle Marks v. Russell Rurka

Case Number: 25-1835

Docket Text:

ORDER filed: Accordingly, Marks’s application for a certificate of appealability and motion to

appoint counsel [7430169-2] are DENIED. Eric E. Murphy, Circuit Judge.

The following documents(s) are associated with this transaction:

Document Description: Order

Notice will be sent to:

Mr. Lavelle Eugene Marks

Lakeland Correctional Facility

141 First Street

Coldwater, MI 49036

A copy of this notice will be issued to:

Ms. Andrea M. Christensen-Brown

Ms. Kinikia D. Essix

Mr. John S. Pallas

Case 2:24-cv-10736-SJM-PTM

ECF No. 15, PagelD.753 Filed 08/19/25 Page 1 of 19

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAVELLE EUGENE MARKS,

Case No. 2:24-cv-10736

Petitioner,

HONORABLE STEPHEN J. MURPHY, III

v.

ADAM DOUGLAS,

Respondent.

______________________________ /

OMNIBUS ORDER [10, 131

Lavelle Eugene Marks petitioned for a writ of habeas corpus under 28 U.S.C.

§ 2254 and challenged his 2005 plea-based conviction for second-degree murder. ECF

No. 1. On December 11, 2023, the Sixth Circuit granted authorization to file a second

habeas petition based on alleged newly discovered evidence. Id. at PageID.59.

Petitioner then filed his petition on March 10, 2024. Id. at PageID.6. In lieu of an

answer, Respondent filed a motion to dismiss the petition as time-barred under 28

U.S.C. § 2244(d)(1). For the reasons stated below, the Court will dismiss the petition

with prejudice, deny the motion to amend and for an evidentiary hearing as moot,

deny a certificate of appealability, but grant leave to appeal in forma pauperis.

BACKGROUND

Petitioner’s convictions arose from the beating death of Mark Carter at

Petitioner’s home in Ypsilanti Township, Washtenaw County on October 6, 2004. See

Marks v. Davis, No. 2:08-cv-13710, 2010 WL 11519612, at *1 (E.D. Mich. Aug. 5,

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2010), aff’d, 504 F. App’x 383 (6th Cir. 2012).1 Petitioner and his co-defendant, Glenn

Turner, forcibly brought the victim to Petitioner’s apartment, where he was beaten

to death. Hours before the murder, Petitioner “broadcasted a $60.00 reward through

the drug community to find and detain the victim.” See Marks v. Davis, Case No. 2:08cv-13710, ECF No. 1-2, PageID.64 (E.D. Mich. Aug. 27, 2008) (Steeh, J.). Petitioner

was later charged with homicide open murder, three counts of kidnapping, and

extortion.

On the eve of trial, Petitioner was offered an agreement to plead guilty to

second-degree murder in exchange for dismissal of the kidnapping and extortion

charges, and an agreement to be sentenced under the non-habitual guidelines. On

September 12, 2005, the day that Petitioner’s trial was scheduled to begin, he

accepted the offer and pleaded guilty. The trial court sentenced Petitioner to 35 to 70

years’ imprisonment.

Later, Petitioner filed a post-conviction motion to withdraw his plea and vacate

the sentence, or, in the alternative, for an evidentiary hearing. Petitioner claimed

that he pleaded guilty because his attorney told him that his plea deal guaranteed

him a sentence of 22 14 to 37 14 years. He argued that his plea was unknowing and

involuntary. On October 3, 2006, the trial court dismissed Petitioner’s motion and

cancelled oral argument as the court determined that the motion was untimely filed.

1 Unless otherwise noted, the Court takes the factual background from the abovementioned district court and Sixth Circuit opinions.

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Petitioner then filed a delayed application for leave to appeal with the

Michigan Court of Appeals. The Michigan Court of Appeals denied Petitioner’s

application in a standard-form order “for lack of merits in the grounds presented.”

People v. Marks, No. 273595 (Mich. Ct. App. Dec. 6, 2006) (unpublished). Petitioner

then filed an application for leave to appeal with the Michigan Supreme Court, which

was denied because the court was “not persuaded that the question presented should

be reviewed.” People v. Marks, 478 Mich. 870 (2007) (Mem.).

On August 27, 2008, Petitioner filed his first federal habeas petition and raised

the following claims:

I.

The trial court abused its discretion in dismissing [Petitioner’s]

motion to withdraw plea and vacate sentence, or in the

alternative, for an evidentiary hearing, and misapplied the

appropriate law as it pertains to the timeliness of the filing of

[Petitioner’s] post conviction motion, therefore, denying

[Petitioner’s] constitutional right to due process of law under the

fifth and fourteenth amendments of the United States

Constitution where [Petitioner] tried to preserve the

involuntariness and coercive nature of his plea to the court.

A. The Plea was involuntary and unknowingly entered.

[Petitioner] should be allowed to withdraw it.

B. The trial court abused its discretion in failing to grant

defendant’s presentence motion to withdraw his plea.

C. The trial court judge failed to apply the proper standard of

review at the initial hearing on the motion to withdraw.

D. An evidentiary hearing was necessary.

E. Defendant’s assertion of innocence and claim of self-defense

are well founded and have been consistently made.

See Marks v. Davis, Case No. 2:08-cv-13710, ECF No. 8, (E.D. Mich. 2010).

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The district court rejected Petitioner’s claims and denied habeas relief, and the

Sixth Circuit affirmed. Marks v. Davis, 504 F. App’x at 387. On April 15, 2013, the

United States Supreme Court denied the petition for writ of certiorari. Marks v.

Warren, 569 U.S. 935 (2013) (Mem.).

In 2016, Petitioner filed a motion for relief from judgment in state court that

challenged defense counsel’s effectiveness during the plea stage and argued that

Petitioner’s lawyer had a conflict of interest. Soon thereafter, the trial court denied

the motion on the basis that Petitioner failed to show cause and actual prejudice for

failing to raise the claims on direct appeal and for lack of merit.

On September 23, 2020,2 Petitioner filed a second motion for relief from

judgment in the state trial court, asserting that he was entitled to post-conviction

relief based on a newly discovered affidavit from witness James McNeely. The

affidavit, signed on January 14, 2020, averred the following key facts: (1) McNeely

was present at Petitioner’s apartment on October 6, 2004 with co-defendant Glenn

Turner and the victim Mark Carter, (2) that he witnessed Petitioner punch the victim

several times over a drug-related dispute, (3) that the victim apologized and shook

hands with Petitioner, (4) moments later Turner took a wooden statue and hit the

victim on the head, while Petitioner intervened to stop Turner, (5) the victim began

bleeding from the head and Petitioner suggested he go to the hospital, (6) before

McNeely left the apartment, Turner threatened to kill him or his family if he ever

2 The date comes from the register of actions in Washtenaw County. ECF No. 11-2,

PageID.182.

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spoke of what happened, (7) Petitioner did not kill the victim, Turner did, (8) McNeely

was interviewed by the prosecutor in 2004, but was never called to testify, and (9)

McNeely was later incarcerated with Petitioner, but did not tell him about the

interview for fear he would get hurt in prison, but upon his release told Petitioner’s

brother what happened. ECF No. 1, PageID.37.

Based on that affidavit, Petitioner argued that he was entitled to relief because

(1) McNeely’s affidavit established newly discovered evidence of his actual innocence,

(2) the prosecution committed misconduct by suppressing evidence of McNeely’s

interview, (3) trial counsel was ineffective for failing to investigate the interview, (4)

appellate counsel was ineffective for failing to raise these claims, and (5) restitution

payments should be returned. ECF No. 11-16, PageID.420—424.

The state trial court rejected Petitioner’s arguments, concluding that he failed

to establish good cause and actual prejudice to overcome the procedural bar set forth

under Mich. Ct. R. 6.508(D)(3). ECF No. 11-17, PageID.426. The trial court further

stated that the “new evidence” argument was without merit. Petitioner filed an

application for leave to appeal. Id. at 428. On May 26, 2022, the Michigan Court of

Appeals denied Petitioner’s delayed application for leave to appeal. ECF No. 11-18,

PageID.431. On March 10, 2023, the Michigan Supreme Court denied Petitioner’s

application for leave because he “failed to meet the burden of establishing entitlement

to relief under MCR 6.508(D).” People v. Marks, 985 N.W.2d 830 (Mich. 2023) (Mem.).

On May 30, 2023, the Michigan Supreme Court denied reconsideration of its order.

People v. Marks, 511 Mich. 970 (2023) (Mem.).

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On July 27, 2023, Petitioner submitted a motion for authorization to file a

second or successive petition in the Sixth Circuit. On December 11, 2023, the Sixth

Circuit granted Petitioner authorization to file a second or successive petition based

on his prima facie showing under 28 U.S.C. § 2244(b)(2), (3)(C) through the McNeely

affidavit. ECF No. 1, PageID.59.

The habeas petition was filed in this Court on March 22, 2024, but signed and

dated on March 10, 2024. ECF No. 1, PageID.6. The Court understands that the

petition alleges that (1) the prosecutor suppressed a recorded witness interview of

McNeeley, (2) Petitioner’s trial and appellate counsel rendered ineffective assistance

by failing to obtain the interview, (3) Petitioner is actually innocent, and (4) Petitioner

was improperly forced to pay the full restitution amount despite the trial court

ordering his co-defendant to pay half. ECF No. 1, PageID.9-13.

Respondent filed a motion to dismiss on the basis that the petition is untimely,

along with Rule 5 materials. ECF No. 10.

DISCUSSION

I.

Timing

The Sixth Circuit’s decision to grant Petitioner authorization to file a second

or successive habeas petition under 28 U.S.C. § 2244(b), ECF No. 1, PageID.59, does

not constitute a finding that his current petition is timely, nor does it preclude this

Court from considering the timeliness of the petition under the one-year statute of

limitations applicable to federal habeas actions. See Davis v. Bradshaw, 900 F.3d 315,

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325 (6th Cir. 2018); In re McDonald, 514 F.3d at 543-44. So, the Court will consider

the timeliness of the petition.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2241 et seq., established a one-year deadline for state prisoners to file a

federal habeas corpus petition. See Wall v. Kholi, 562 U.S. 545, 550 (2011); Sexton v.

Wainwright, 968 F.3d 607, 609-10 (6th Cir. 2020). The one-year limitation period

ordinarily runs from the latest of the following four dates:

(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).

A habeas petition filed outside the allotted time period must be dismissed. See

Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (dismissing case filed thirteen

days late); Wilson v. Birkett, 192 F. Supp. 2d 763, 765 (E.D. Mich. 2002).

Here, the timeliness of the habeas petition depends on when Petitioner

discovered or could have discovered the factual predicate for his new claims through

the exercise of due diligence. Under § 2244(d)(1)(D), the limitations period begins to

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run when a petitioner knows, or through due diligence, could have discovered, the

important facts for a habeas claim—not when the petitioner recognizes the legal

significance of those facts. Smith v. Meko, 709 F. App’x 341, 344 (6th Cir. 2017);

Redmond v. Jackson, 295 F. Supp. 2d 767, 771 (E.D. Mich. 2003). “The question under

the provision is not when prisoners first learned of the new evidence; it is when they

should have learned of the new evidence had they exercised reasonable care.”

Townsend v. Lafler, 99 F. App’x 606, 608 (6th Cir. 2004); see also Brooks v. McKee,

307 F. Supp. 2d 902, 905-06 (E.D. Mich. 2004). The start of the limitations period

“does not await the collection of evidence which supports the facts.” Brooks, 307 F.

Supp. at 906. A habeas petitioner bears the burden of showing due diligence in

discovering the factual predicate for his or her claims. DiCenzi v. Rose, 452 F.3d 465,

471 (6th Cir. 2006).

Crediting the Sixth Circuit’s discussion of Petitioner’s inability to previously

discover McNeely’s statements through the exercise of due diligence, it appears the

latest date Petitioner could have learned of McNeely’s statements was January 14,

2020, when McNeely signed the affidavit. See ECF No. 1, PageID.37. So, the one-year

period would have started running the next day, January 15, 2020. When Petitioner

initiated his post-conviction proceedings on September 23, 2020, 252 days had passed,

and 113 days remained on the clock. The clock resumed when the Michigan Supreme

Court entered its decision denying reconsideration on May 30, 2023.

Although Petitioner filed his motion for authorization to file a second or

successive petition in the Sixth Circuit on July 27, 2023, statutory tolling does not

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apply to the time period when the petitioner’s motion to the Sixth Circuit Court of

Appeals for authorization to file a second or successive petition was pending. The

United States Supreme Court has held that the filing of an application for habeas

corpus review does not fall within the language of Section 2244(d)(2) because it is not

an “application for State post-conviction or other collateral review.” Duncan v.

Walker, 533 U.S. 167, 181-82 (2001). If the filing of an actual habeas petition does

not provide a basis for statutory tolling under Section 2244(d)(2), then the filing of a

motion to file a second or successive habeas petition necessarily cannot provide a

basis for statutory tolling under Section 2244(d)(2). Accordingly, Petitioner’s habeas

petition became due on September 20, 2023. He filed his petition on March 10, 2024,3

after the one-year limitations period expired. AEDPA’s statute of limitations bars

him from pursuing his habeas claims, unless Petitioner can show that equitable

tolling applies.

AEDPA’s statute of limitations is subject to equitable tolling “when a litigant’s

failure to meet a legally-mandated deadline unavoidably arose from circumstances

beyond that litigant’s control.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749

(6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). But

equitable tolling is granted “sparingly.” Id. (quoting Robertson, 624 F.3d at 784). A

habeas petitioner is entitled to equitable tolling only if he establishes that (1) “he has

3 Under the prison mailbox rule, the filing date is assumed to be the day that the pro

se prisoner plaintiff handed the filing to prison officials; that day, in turn, is assumed

to be the date on the complaint absent evidence to the contrary. See Brand v. Motley,

526 F.3d 921, 925 (6th Cir. 2008). Petitioner’s petition is signed and dated March 10,

2024. ECF No. 1, PageID.6.

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been pursuing his rights diligently;” and (2) “some extraordinary circumstance stood

in his way and prevented timely filing.” Id. (quoting Holland v. Florida, 560 U.S. 631,

649 (2010)).

While the time in which a habeas case has been pending in federal court is not

statutorily tolled, see Duncan, 533 U.S. at 181—82, such time is equitably tolled. See

Johnson v. Warren, 344 F. Supp. 2d 1081, 1088—89 (E.D. Mich. 2004). So, the Court

will equitably toll the time when Petitioner’s motion for authorization to file a second

or successive petition was pending in the Sixth Circuit, allotting Petitioner 55 days

remaining on the limitations clock as of December 11, 2023, when the Sixth Circuit

granted authorization. Petitioner then had until February 4, 2024, to file his petition

absent other justifications for equitable tolling. But he failed to do so.

Still, Petitioner argued that the time before he filed his motion for relief from

judgment in state court should be tolled because the 2020 pandemic caused prison

lockdowns preventing him from filing his motion any sooner. ECF No. 12, PageID.71.

He also argued that the period after the Sixth Circuit’s order should be tolled because

law library closures (and mailing delays) prevented him from filing his petition. Id.

Such circumstances, however, do not justify equitable tolling.

Mailing delays, lockdowns, delays related to legal assistance, and limited law

library access are normal aspects of prison life, not extraordinary ones. See, e.g., Hall,

662 F.3d at 750-52 (rejecting petitioner’s argument that he was entitled to equitable

tolling due to lack of access to transcripts, pro se status, and limited law library

access); United States v. Cherry, No. 04-90040, 2010 WL 3958679, *2 (E.D. Mich. Oct.

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8, 2010) (citing cases holding that lack of access to legal materials during prison

lockdowns, transfers, and administrative segregation are not extraordinary

circumstances that warrant tolling); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir.

2002) (“[A]n inmate’s lack of legal training, his poor education, or even his illiteracy

does not give a court reason to toll the statute of limitations.”).

Further, while the pandemic itself was certainly unusual, the associated

effects on prison life are not exceptional circumstances that warrant equitable tolling.

This is especially true where, as here, the petitioner has not explained or presented

evidence to show how his circumstances actually prevented him from filing his state

post-conviction motion. United States v. West, 578 F. Supp. 3d 962, 967 (N.D. Ohio

2022) (concluding that petitioner was not entitled to equitable tolling where he only

made general allegation about pandemic-related lockdown and lack of law library

access and failed to show that he acted diligently during the one-year period);

Shoening v. Christianson, No. 2:21-cv-11955, 2021 WL 4290242, at *3—4 (E.D. Mich.

Sept. 21, 2021) (same). Accordingly, Petitioner is not entitled to additional tolling for

any of these reasons.

IL

Actual Innocence

Petitioner next argues that his actual innocence excuses the procedural bar of

the statute of limitations. The Court disagrees.

A habeas petitioner who can show actual innocence under the rigorous

standard of Schlup v. Delo, 513 U.S. 298 (1995) is excused from the procedural bar of

the statute of limitations under the miscarriage-of-justice exception. McQuiggin v.

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Perkins, 569 U.S. 383, 392 (2013). “[A]ctual innocence’ means factual innocence, not

mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998). To make

a showing of actual innocence under Schlup, a petitioner must present new evidence

showing that “it is more likely than not that no reasonable juror would have convicted

the petitioner.” McQuiggin, 569 U.S. at 399 (citation modified). To do so, a court must

survey “all the evidence, old and new, incriminating and exculpatory, without regard

to whether it would necessarily be admitted under rules of admissibility that would

govern at trial.” House v. Bell, 547 U.S. 518, 538 (2006) (citation modified). With “all

the evidence” in mind, a court’s “function is not to make an independent factual

determination about what likely occurred, but rather to assess the likely impact of

the evidence on reasonable jurors.” Id.

Because actual innocence provides an exception to the statute of limitations

rather than a basis for equitable tolling, a petitioner who can make a showing of

actual innocence need not demonstrate reasonable diligence in bringing his claim,

though a court may consider the timing of the claim in determining the credibility of

the evidence of actual innocence. McQuiggin, 569 U.S. at 399-400. Critically, a

showing of actual innocence must be based on “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup, 513 U.S. at 324; see also Hubbard

v. Reverts, 98 F.4th 736, 743 (6th Cir. 2024). And so, a petitioner who presents a

credible claim of actual innocence is entitled to equitable tolling of AEDPA’s statute

of limitations. Souter v. Jones, 395 F.3d 577, 601 (6th Cir. 2005).

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When a petitioner has pleaded guilty, as here, the question of whether the

actual innocence exception applies is more complex. Courts in this circuit have held

that the actual-innocence exception does not apply when the petitioner pleaded

guilty. See Shofner v. Green, No. 0:20-cv-23, 2020 WL 8475034, at *4—5 (E.D. Ky. Apr.

16, 2020) (collecting cases), report and recommendation adopted, 2021 WL 472911

(E.D. Ky. Feb. 9, 2021). After all, “a valid guilty plea relinquishes any claim that

would contradict the ‘admissions necessarily made upon entry of a voluntary plea of

guilty.’” Class v. United States, 583 U.S. 174, 183 (2018) (quoting United States v.

Broce, 488 U.S. 563, 573-74 (1989)). “[A] counseled plea of guilty is an admission of

factual guilt so reliable that, where voluntary and intelligent, it quite validly removes

the issue of factual guilt from the case.” Menna v. New York, 423 U.S. 61, 62 n.2

(1975). And any “attack on the sufficiency of the evidence that might have been

produced at trial [is] clearly waived by [a] defendant’s guilty plea.” United States v.

Manni, 810 F.2d 80, 84 (6th Cir. 1987).

That said, the Sixth Circuit, in an unpublished opinion, has noted that “[a]

petitioner may claim actual innocence for the purposes of equitable tolling, even if his

conviction was the result of a plea.” Connolly v. Howes, 304 F. App’x 412, 417 (6th

Cir. 2008). There are also some district-court cases in this Circuit that applied Souter

after a guilty plea. See, e.g., Eads v. Bottom, No. 6:13-cv-29, 2014 WL 2742581, at *5

(E.D. Ky. June 12, 2014) (“[A] defendant [who] pled guilty still may assert a Schlup

claim. . . . [but] the application of Schlup in the plea context creates a host of

analytical difficulties.”); Miles v. Ohio, No. l:09-cv-262, 2010 WL 5899288, at *4 (S.D.

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Ohio Mar. 11, 2010) (applying Souter when the petitioner had pleaded guilty, but

finding he did not “meet his burden of establishing actual innocence”), report and

recommendation adopted, 2011 WL 799847 (S.D. Ohio Mar. 2, 2011).

But even if actual innocence applies in guilty-plea cases,4 the Court finds that

Petitioner has not satisfied the “high bar” of Schlup to warrant tolling. While the

McNeely affidavit may qualify as new evidence because it emerged after the guilty

plea and sentencing, Petitioner has not shown that the affidavit is reliable evidence.

The court in Schlup did not provide an exhaustive list of what could be considered

reliable evidence, but it did provide examples which are instructive. See Schlup, 513

U.S. at 324 (listing exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence as examples of support for petitioner’s claim). The

McNeeley affidavit does not meet the Schlup criteria.

First, the affidavit is highly suspect. McNeely is a convicted felon and avers

that he was incarcerated with Petitioner. ECF No. 1, PageID.37 (“While I was in

prison with [Petitioner], I never told him about the statement I made to the Sheriff

and Prosecutor because I would be hurt in prison for telling.”). Statements by fellow

prisoners are viewed with suspicion. Cf. Milton v. Secretary, Dep’t of Corr., 347 F.

App’x 528, 531-532 (11th Cir. 2009) (concluding that an affidavit from the family

member of a fellow inmates created after trial is not sufficiently reliable evidence to

support a claim of actual innocence).

4 The Court acknowledges that Petitioner argued his innocence during sentencing.

See ECF No. 11-12, PageID.390. (“I feel sorry for Mark and his family, but I didn't

kill Mark.”).

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Second, the affidavit is inconsistent with evidence from the state-court record

and the other affidavits submitted in support of Petitioner’s initial habeas petition.

To begin, the affidavit conflicts with witness testimony from the preliminary

investigation. Chris Whisenant testified that, hours before the crime, he drove

Petitioner and Turner to the victim’s apartment. ECF No. 11-4, PageID.250.

Whisenant further testified that when Petitioner, Turner, and the victim were in his

car, he drove them back to Petitioner’s apartment, while Petitioner and the victim

argued about money. Id. at PagelD.253-254. When they arrived at Petitioner’s

apartment, no one else was present. Id. at PagelD.256. Before Whisenant left the

apartment, the argument between Petitioner and the victim continued. Id. at

PagelD.255. The testimony plainly contradicts McNeely’s statement that, while he

was at Petitioner’s apartment, “an argument broke out between [Petitioner and the

victim] over some crack.” ECF No. 1, PagelD.37. According to Whisenant, an

argument between Petitioner and the victim had been ongoing and McNeeley was not

at the apartment.

The affidavit also conflicts with some of the sworn affidavits attached to

Petitioner’s earlier habeas petition. For instance, Jeffery Irby’s affidavit states that,

on October 6, 2004, he saw the victim near Petitioner’s apartment, beaten and badly

injured after getting jumped near his apartment complex. The victim then informed

Irby that he was going to stay the night at Petitioner’s. See Marks v. Davis, Case No.

2:08-cv-13710, ECF No. 1-2, PagelD.48 (E.D. Mich. Aug. 27, 2008). Additionally,

Robert Johnson’s affidavit states that Glenn Turner told him that the victim arrived

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at Petitioner’s apartment already injured and that Petitioner tried to take the victim

to the hospital, but he refused to go. Johnson further averred that, after Petitioner

left to go to the store, a fight broke out between Turner and the victim over crack

cocaine and Turner beat the victim with a wood statue. Id. at PageID.46.

But McNeely’s affidavit tells a different tale. McNeely states that Petitioner

and the victim fought over cocaine at the apartment and Petitioner hit the victim

several times, but that Turner hit the victim on the head with a wood statue. When

Turner tried to hit the victim a second time, McNeely claims Petitioner stopped him.

ECF No. 1, PageID.37. Petitioner’s filing of multiple habeas petitions with multiple

conflicting affidavits calls the reliability of the McNeeley affidavit into question.

Third, the Court finds that the affidavit does not establish factual innocence.

As discussed, McNeely states that Petitioner “punched [the victim] several times.” Id.

During the preliminary examination, the coroner testified that the victim’s cause of

death was multiple blunt force injuries to the head. ECF No. 11-4, PageID.224—226.

The affidavit is silent as to where Petitioner hit the victim but is clear that Turner

hit the victim on the head only once with the statue. Therefore, a jury could find both

Petitioner and Turner caused the victim’s death. The affidavit does not exonerate

Petitioner.

Finally, the Court finds the timing of the affidavit highly suspicious. It was

signed approximately 16 years after the murder. New statements from witnesses

years after a crime are inherently suspect and are viewed with “a fair degree of

skepticism.” Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J., concurring).

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For these reasons, Petitioner fails to make a persuasive showing of actual

innocence. The affidavit is suspect, contains inconsistencies with other evidence, and

fails to establish factual innocence. Considering the available evidence, Petitioner

fails to establish that it is more likely than not no reasonable juror would have

convicted him based on the McNeely affidavit.

His petition is, therefore, untimely and will be dismissed. Petitioner’s motion

to amend and for an evidentiary hearing, ECF No. 13, will also be denied.

III.

Certificate of Appealability

Before petitioner may appeal this Court’s dispositive decision, a certificate of

appealability must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A

certificate of appealability may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal

district court denies a habeas claim on procedural grounds without addressing the

claim’s merits, a certificate of appealability should issue, and an appeal of the district

court’s order may be taken, if the petitioner shows that jurists of reason would find it

debatable whether the petitioner states a valid claim of the denial of a constitutional

right, and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

When a plain procedural bar is present and the district court is correct to invoke it to

dispose of the matter, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petition should be allowed to

proceed. In such a case, no appeal is warranted. Id. “The district court must issue or

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deny a certificate of appealability when it enters a final order adverse to the

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foil. § 2254; see also

Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).

Here, the Court will deny petitioner a Certificate of Appealability. Reasonable

jurists would not find it debatable whether this Court was correct in determining that

petitioner did not file his habeas petition within the one-year limitations period.

Grayson, 185 F. Supp. 2d at 753.

Although jurists of reason would not debate this Court’s resolution of

petitioner’s claims, the issues are not frivolous; therefore, an appeal could be taken

in good faith and petitioner may proceed in forma pauperis on appeal. See Foster v.

Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. 2002).

ORDER

WHEREFORE, it is hereby ORDERED that Respondent’s Motion to Dismiss

[10] is GRANTED, and the Petition is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the motion to amend and for an evidentiary

hearing [13] is DENIED.

IT IS FURTHER ORDERED a certificate of appealability is DENIED. Leave

to appeal in forma pauperis is GRANTED.

This is a final order that closes the case.

SO ORDERED.

s/Stephen J. Murphy, III______

STEPHEN J. MURPHY, III

United States District Judge

Dated: August 19, 2025

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAVELLE EUGENE MARKS,

Case No. 2:24-cv-10736

Petitioner,

HONORABLE STEPHEN J. MURPHY, III

v.

ADAM DOUGLAS,

Respondent.

_____________________________ I

JUDGMENT

IT IS ORDERED AND ADJUDGED that, pursuant to the Court’s order

dated August 19, 2025, Petitioner’s claims are dismissed with prejudice.

KINIKIA ESSIX

CLERK OF THE COURT

BY: s/ R, Loury

Dated: August 19, 2025

APPROVED:

s/ Stephen J. Murphy, III

STEPHEN J. MURPHY, III

U.S. DISTRICT JUDGE

1

Additional material

from this filing is

available in the

Clerk's Office.