AMENDED OPINION
Pеtitioner-Appellant Alfred DiCenzi appeals the district court’s dismissal of his habeas petition on the ground that the petition was not timely filed. Following a guilty plea to vehicular homicide, DiCenzi was given the maximum sentence under Ohio law, but claims he was never informed by either the trial court or his attorney that Ohio affords those sentenced to a maximum sentence a non-waivable right to a direct apрeal of their sentences. When DiCenzi finally became aware of this right, he filed a motion for delayed direct appeal, but this motion was denied by the Court of Appeals of Ohio and the Supreme Court of Ohio. He then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court, alleging that his constitutional rights had been violated both by the trial court when it did not inform him of his right to appeal, and by the state appellate court when it refused to consider his delayed appeal. The district court determined that the petition was untimely, and dismissed it without reaching the merits. Because we find that the portion of DiCenzi’s petition relating to the Ohio appellate courts’ decisions was timely, and because we find that the district court failed to determine conclusively whether DiCenzi was diligеnt during the time when he claims to have been unaware of his appeal rights, we VACATE the district court’s dismissal of the petition and REMAND for further proceedings consistent with this opinion.
I.
On May 27,1999, in the Cuyahoga County Court of Common Pleas, DiCenzi pleaded guilty to aggravated vehicular homicide and aggravated vehicular assault. He was sentenced to five years imprisonment on the vehicular homicide count and eighteen months on the vehicular assault count, to be served consecutively. This constituted *467 the maximum possible sentence for these convictions, and thus under Ohio law the sentencing judge was required to make certain specific factual findings and inform DiCenzi of his right to appeal his sentence despite his guilty plea. Ohio Rev.Code §§ 2953.08(A)(1)(b); 2953.08(A)(4). At sentencing, however, the trial judge did not inform DiCenzi of his right to appeal his sentence.
Eight months later, in February 2000, DiCenzi’s counsel filed a motion for judicial release in which he argued that good behavior rendered DiCenzi eligible for probation. This motion was denied on April 14, 2000. On March 13, 2001, DiCenzi filed a pro se motion to merge his two convictions for sentencing purposes, to avoid duplicate punishment for the same acts. No court appears to have acted on this motion. Then, in August 2001, DiCenzi contacted the Cuyahoga County Public Defenders’ office (“Public Defender”), who informed him of his right to appeal his sentence. As a result, DiCenzi immediately filed a motion for leave to file a delayed appeal of his sentence on August 23, 2001. This motion was denied by the Ohio Court of Appeals on September 25, 2001.
At this point, the Public Defender independently decided to investigate the case. After examining the sеntencing transcript and determining that DiCenzi had never been notified of his right to appeal, the Public Defender agreed to represent DiCenzi and, pursuant to Ohio Appellate Rule 26, filed a motion for reconsideration in the Court of Appeals for Cuyahoga County on October 5, 2001. The motion was denied without opinion on October 24, 2001. The Public Defender then filed a motion to file a delayed apрeal in the Supreme Court of Ohio on November 16, 2001, arguing that DiCenzi had been denied his right to due process under the U.S. Constitution by the state’s failure to grant him the right to a delayed appeal when he had been unaware of his right to appeal prior to August 2001. Though this motion was granted, the Supreme Court of Ohio later dismissed the appeal.
DiCenzi, still represented by the Public Defender, then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court, alleging: (1) a Sixth Amendment violation arising from his attorney’s failure to notify him of his appeal rights; and also three due process violations arising from (2) the trial court’s failure to afford him the required protections of Ohio law in imposing a maximum sentence, (3) the trial court’s “failure to advise him of his appellate rights,” and (4) the state appellate cоurt’s “refus[al] to allow him to file a delayed appeal.” A magistrate judge recommended dismissal of the petition, finding both that the petition was not timely filed and that equitable tolling was not warranted. Over DiCenzi’s objections and after a de novo review of the record, the district court dismissed the petition as untimely for effectively the same reasons as those found in the magistrate judge’s recommendation, but granted a certificate of appealability as to the timeliness issue. The Public Defender timely appealed on DiCenzi’s behalf.
II.
A Standard of Review
Since the only issue on appeal is whether the district court properly calculated the timeliness of DiCenzi’s habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2244(d)), we review the district court’s interpretation of the statute
de novo. See, e.g., Miller v. Collins,
*468 (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 оn 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 applicablе 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).
DiCenzi’s petition raised four grounds for granting a writ of habeas corpus. Claims (1) through (3) deal with matters that occurred at sentencing, and claim (4) deals specifically with a decision of the Cоurt of Appeals. We will consider the appeal-based claim first, and then proceed to evaluate the sentencing-based claims.
B. Claim Based on the Ohio Court of Appeals’ Denial of Delayed Appeal
DiCenzi first claims that the appellate court improperly refused to allow him to file a delayed appeal. This claim accrued when the Court of Appeals fоr Cuyahoga County denied DiCenzi’s motion for delayed appeal, on September 25, 2001. Therefore, under 28 U.S.C. § 2244(d)(1), the AEDPA “clock” began running on September 25, 2001. 1 See 28 U.S.C. § 2244(d)(1)(D) (initiating the one-year AEDPA requirement on the date upon which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence).
DiCenzi did not file a motion to appeal in the Supreme Court of Ohio until November 16, 2001, fifty-two days after the Court of Appeals denied DiCenzi’s motion for delayed appeal. In DiCenzi’s November 16 motion, he presented, in accordance with Ohio procedural rules, reasons why the Supreme Court of Ohio should hear his appeal despite the fact that the applicable time limit for direct appeals had ended. Such a motion for delayed appeal, even if granted, does not restart the statute of limitations, but if properly filed, it does toll the statute during the time the motion was pending.
See, e.g., Searcy v. Carter,
On December 19, 2001, the Ohio Supreme Court granted DiCenzi’s motion for leave to file the appeal, and ordered the parties to brief the jurisdictional merits of the appeal. On April 3, 2002, the Ohio Supreme Court concluded that DiCenzi’s claim did not merit Ohio Supreme Court jurisdiction because no significant constitutional question was presented. However, the fact that the appeal itself was ultimately denied on its jurisdictional merits does not alter the fact that DiCenzi’s AEDPA statute of limitations was tolled during the consideration of his motion, once it was accepted for filing.
See Bonilla v. Hurley,
Accordingly, ninety days after April 3, 2002, or as of July 2, 2002, the AEDPA clock began running again. From this time, DiCenzi had one year minus fifty-two days to file his federal habeas claim, or until May 11, 2003. His habeas petition was in fact filed on April 3, 2003. Accordingly, at least as to his claim that the Ohio Court of Appeals denied him due process when it dеnied his motion for delayed appeal, DiCenzi’s petition was timely under AEDPA, since the petition was filed before the expiration of the statute of limitations.
C. Claims Based on Errors at Sentencing
DiCenzi’s three other claims, that he was (1) denied his Sixth Amendment rights when his counsel was ineffective by not informing DiCenzi of his appeal rights; and that he was denied due process when the district court (2) sentenced DiCenzi to an illegal sentence under Ohio law, and (3) failed to inform DiCenzi of his right to appeal despite his guilty plea, all relate to events that took place at sentencing on June 30, 1999. Since there was no timely-filed direct appeal, DiCenzi’s sentence became final on July 30, 1999, see Ohio App. R. 4(A), and unless another provision of 28 U.S.C. § 2244(d)(1) applies, he had one year from this date to file a habeas petition under 28 U.S.C. § 2244(d)(1)(A). Obviously, even assuming that all of his later actions tolled the statute for certain periods of time, DiCenzi’s habeas petition, filed on April 3, 2003, was not filed within one year of July 30, 1999. Accordingly, if the statute of limitations did indeed begin running on that date, DiCenzi’s petition was not timely filed.
The main thrust of the non-equitable-tolling portion of DiCenzi’s claim is that he could not have known about his right to a direct appeal of his maximum sentence until he spoke to the Public Defender in the summer of 2001, and thus that the statute of limitations on these claims should have started running only at that time, under 28 U.S.C. § 2244(d)(1)(D). This section of AEDPA starts the statute of limitations running on “the date on which the factual predicate of the claim or claims presented could have been discover *470 ed through the exercise of due diligence.” Id. Despite DiCenzi’s explicit argument in his petition that he could not have reasonably known about his appeal rights before he went to the Public Defender, the district court did not consider what diligence DiCenzi reasonably could have exercised, but rather simply concluded that the AED-PA clock began running on July 30, 1999, 30 days following the imposition of DiCen-zi’s sentence. See D. Ct. Op. at 3-4. DiCenzi argues that he was indeed duly diligent during the time between June of 1999 and August of 2001, and thus that the statute should not have started running until August 2001 when he was informed by the Public Defender that he had the right to an appeal.
Of course, during all this time, had DiCenzi merely inquired of a court or a public defender regarding whether he had the right to an appeal, he could have found out that he did. He argues, however, that it is not reasonable to expect a defendant who pleaded guilty to be aware of mandatory statutory appeal rights from the sentence imposed, especially when neither the court nor his attorney at sentencing informed him of any such rights. In support of this argument, DiCenzi cites
Granger v. Hurt,
Accordingly, as noted by the Second Circuit,
The proper task in a case such as this one is to determine when a duly diligent person in petitioner’s circumstances would have discovered [his right to an appeal]. After that date, petitioner was entitled to further delay (whether in actually making the discovery, or in acting on a previously made discovery, or for any other reason whatsoever), so long as he filed his petition within one year of the date in which the discovery would have been made in the exercise of due diligence.
Wims,
*471 as an appellate court, we cannot say precisely when, in exercising due diligence, [a defendant] would have discovered his [right] to appeal. This is so because the date on which the limitations clock began to tick is a fact-specific issue the resolution of which depends, among other things, on the details of [a defendant’s] pоst-sentence conversation with his lawyer and on the conditions of his confinement in the period after [sentencing].
Wims,
It is worth noting that the State relies significantly on the fact that, in his motion for delayed appeal to the Ohio Court of Appeals, DiCenzi stated that he did “not recall having been advised, either by counsel or by the trial judge of his appellate rights — if in fact, defendant was so advised, he failed to comprehend the trial court’s advice in the wake of his having just received maximum consecutive terms of imprisonment totaling 6 ]é years.”
2
DiCenzi thereafter obtained a copy of the sentencing transcript, included in the record before the Ohio Supreme Court and the district court, in which it is clear that he was not advised of his right to appeal. Further, DiCenzi has always maintained that he was unaware of his appeal rights— in his traverse DiCenzi was explicit in stating that he had not been informed of his right to appeal by either the sentencing court or his counsel at sentencing. Remand will allow the district court to determine both (a) when DiCenzi first learnеd of his right to appeal, and (b) when a reasonably diligent person in DiCenzi’s position could be reasonably expected to learn of his appeal rights.
Wims,
Here, the petitioner bears the burden of proving that he exercised due diligence, in order for the statute of limitations to begin running from the date he discovered the factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D).
See Lott v. Coyle,
We will thus remand this case to the district court, to allow it to determine when a defendant in DiCenzi’s position, acting with due diligence for AEDPA statutory purposes, would have discovered his right to an appeal. The period of time between July 30,1999 and this date should be added to any periods of time thereafter when DiCenzi’s actions would have tolled the statute of limitatiоns. If, after subtracting this total from the time between July 30, 1999 and the filing of the petition on April 3, 2003, the remaining time equals more than one year, then DiCenzi’s petition was not timely filed under 28 U.S.C. § 2244(d)(1)(D). DiCenzi also requests an evidentiary hearing in order to introduce additional evidence regarding his diligence. The district court, of course, may only grant such a hearing in a habeas case if the dictates of 28 U.S.C. § 2254(e) are satisfied, a condition that is more properly addressed by the district court in the fust instance.
D. Other Claims
DiCenzi also disputes the district court’s conclusion that he is not entitled to equitable tolling. However, on remand, it may be found that DiCenzi was duly diligent, for statutory purposes, for a portion of the time at issue. Such a finding could affect any equitable tolling analysis, and we therefore need not address this issue at this time. Further, though DiCenzi does not assert that he is actually innocent of the crime for which he was convicted, on appeal he does argue the merits of his claim that he is somehow “actually innocent” of the sentence imposed upon him. The district court never reached the merits of the petition, so this issue simply is not before us now.
III.
For the preceding reasons, we VACATE the district court’s dismissal of DiCenzi’s petition and REMAND for proceedings consistent with this opinion.
Notes
. The Public Defender filed a motion for reconsideration in the Court of Appeals during this time, and that motion was denied on October 24, 2001. It is unclear whether motions for reconsideration filed pursuant to Ohio App. R. 26(A) toll AEDPA’s statute of limitations.
See Draughon v. DeWitt,
. The district court also relied on this statement in denying DiCenzi equitable tolling. However, because we do not reach the equitable tolling issue, see infra, we express no opinion as to how such a prior statement should affect an equitable tolling claim. Suffice it to note that the district court did not rely on this statement in finding that, "[a]b-sent equitable tolling, DiCenzi’s petition is untimely under AEDPA.” Of course, on remand, the district court may consider this evidence, along with any other evidence, in determining DiCenzi's diligence for statutory purposes.