Marlon Scarber v. Carmen Palmer , 808 F.3d 1093 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0297p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARLON SCARBER, ┐
Petitioner-Appellant, │
│
│ No. 14-2364
v. │
>
│
CARMEN DENISE PALMER, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:13-cv-15074—Stephen J. Murphy III, District Judge.
Decided and Filed: December 22, 2015
Before: BOGGS and McKEAGUE, Circuit Judges; and BERTELSMAN, District Judge.
_________________
COUNSEL
ON BRIEF: Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Respondent. Marlon Scarber, Ionia, Michigan, pro se.
_________________
OPINION
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BOGGS, Circuit Judge. Marlon Scarber appeals the district court’s judgment dismissing
as untimely his petition for a writ of habeas corpus. He argues that the statute of limitations
provided in the Antiterrorism and Effective Death Penalty Act (AEDPA) was tolled for two
three-week periods when he could have filed motions for reconsideration of adverse Michigan

The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
1
No. 14-2364 Scarber v. Palmer Page 2
Supreme Court orders. We hold that the statute ran during those periods when Scarber had the
opportunity to, but did not, move for reconsideration, and we therefore affirm.
In 2006, Scarber was sentenced to life imprisonment and the Michigan Court of Appeals
affirmed. People v. King, Nos. 273443, 273543, 273955, 2007 WL 4209366 (Mich. Ct. App.
Nov. 29, 2007) (per curiam). The Michigan Supreme Court denied his application for leave to
appeal. People v. Taylor, 759 N.W.2d 361 (Mich. 2008). On November 12, 2009, Scarber filed
a motion to dismiss the charges against him for lack of jurisdiction, which the court took as a
post-conviction motion for relief. See Mich. Ct. R. 6.500 et seq. The trial court denied the
motion, the Michigan Court of Appeals affirmed, and on March 8, 2011, the Michigan Supreme
Court denied his application for leave to appeal that decision. People v. Scarber, 794 N.W.2d
581 (Mich. 2011). On August 4, 2011, he filed a state habeas petition that was ultimately
unsuccessful. See People v. Scarber, 839 N.W.2d 481 (Mich. 2013).
Soon thereafter, Scarber filed a federal habeas petition. The district court dismissed it as
untimely but granted a certificate of appealability on the issue of whether AEDPA’s statute of
limitations was tolled during the three-week period when he could have moved for
reconsideration of the rejection of his application for leave to appeal the denial of his motion to
dismiss. We review de novo the dismissal of a habeas petition as barred by AEDPA’s statute of
limitations. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011).
This case has three inflection points: when AEDPA’s statute of limitations began to run
(March 20, 2009), when it was tolled (November 12, 2009), and when it started up again (subject
to debate). The limitation period began to run on March 20, 2009, after the ninety days when
Scarber could have sought review of the merits judgment against him with the United States
Supreme Court. See Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000). The limitation period
is tolled when “a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). It was
tolled with 128 days remaining from November 12, 2009 (when Scarber filed the motion to
dismiss) until March 8, 2011 (when the Michigan Supreme Court rejected his request to appeal
its denial). According to the district court, the limitation period resumed running the next day
and expired on July 15, 2011. By Scarber’s counting, it was tolled for the next three weeks,
No. 14-2364 Scarber v. Palmer Page 3
during which time he could have filed a motion to reconsider as well as for the same period after
the Michigan Supreme Court denied review of his August 2011 petition. See Mich. Ct. R.
7.311(G).
We hold that the limitation period resumed running the day after the Michigan Supreme
Court upheld the denial of Scarber’s request for leave to appeal. AEDPA’s limitation period
begins to run after “the expiration of the time for seeking [direct review].” § 2244(d)(1)(A)
(emphasis added). In contrast, it is tolled when “a properly filed application for State post-
conviction or other collateral review . . . is pending.” § 2244(d)(2) (emphasis added). “The
linguistic difference is not insignificant.” Lawrence v. Florida, 549 U.S. 327, 334 (2007).
Congress instructed that the limitation period commences only after “the time for seeking” direct
review has expired. That language covers situations where a defendant may, but does not,
petition for certiorari. Id. at 333. Such was the case here. Congress was less forgiving when it
came to tolling during collateral review, requiring a “properly filed application” to be “pending”
before the state court. Such was not the case here. If Scarber had resuscitated his petition by
seeking reconsideration, the limitation period would have been tolled because an application for
state review would still have been pending. See Sherwood v. Prelesnik, 579 F.3d 581, 587 (6th
Cir. 2009) (petitioner “actually filed a timely motion for reconsideration”). However, the
AEDPA limitation period does not stop running for a petitioner who had the opportunity to, but
did not, file a motion for reconsideration.
We have in dicta and an unpublished order reached the opposite conclusion. See Martin
v. Wilson, 110 F. App’x 488, 490 (6th Cir. 2004); Abela v. Martin, 348 F.3d 164, 171–73
(6th Cir. 2003) (en banc), overruled in part by Lawrence v. Florida, 549 U.S. 327 (2007).
Of course, neither dicta nor an unpublished decision is binding precedent. See United States v.
Sanford, 476 F.3d 391, 396 (6th Cir. 2007); Asmo v. Keane, Inc., 471 F.3d 588, 600 (6th Cir.
2006). But more to the point, those rulings did not have the benefit of later Supreme Court
opinions that provided additional clarity regarding the meaning of “pending” in § 2244(d)(2).
In Evans v. Chavis, the Court reiterated its holding from Carey v. Saffold: a claim is “pending”
during the time between an adverse lower-court determination and “the prisoner’s filing of a
notice of appeal,” but only if “the filing of the appeal is timely.” 546 U.S. 189, 191 (2006)
No. 14-2364 Scarber v. Palmer Page 4
(citing Carey, 536 U.S. 214 (2002)). By negative implication, the period between an adverse
lower-court decision and an untimely appeal does count toward the AEDPA limitation period.
And by the same logic, if no timely petition for rehearing is filed, the limitation period runs from
after the date when a state’s highest court denies collateral relief. Just as “a state prisoner
c[annot] toll the statute of limitations at will simply by filing untimely state postconviction
petitions,” Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), he cannot do so by sitting on his
hands.
Then in Lawrence v. Florida, the Court held that “[w]hen the state courts have issued a
final judgment on a state application, it is no longer pending.” 549 U.S. 327, 334 (2007)
(emphasis added). In so doing, the Court overruled Abela in pertinent part, as recognized in
Hall, 662 F.3d at 753, thereby undercutting Martin’s reliance on Abela, see 110 F. App’x at 491.
Review of Scarber’s post-conviction motion ended when the Michigan Supreme Court issued a
final order denying his application for leave to appeal—but only because he had appealed the
intermediate court’s earlier final order. See Mich. Ct. R. 7.202(6)(a)(i) (defining “final order”
and “final judgment” as “the first judgment or order that disposes of all the claims and
adjudicates the rights and liabilities of all the parties, including such an order entered after
reversal of an earlier final judgment or order”).
Section § 2244(d)(2) burdens the petitioner with the responsibility of preserving a
“pending” status of review by appealing (or, as was the case here, moving for reconsideration of)
an otherwise final state-court order. Its language instructs on how to do so: “properly fili[ing]”
an application for review. The requirement of a properly filed application is not undermined by
the Court’s earlier holding that a collateral-review application is pending until it “has achieved
final resolution through the State’s post-conviction procedures.” Carey, 536 U.S. at 220. In
Carey, it was the petitioner’s “timely filing of a notice of appeal”—not the expiration of the time
for seeking appellate review—that rendered California’s collateral-review process incomplete
(and the application for review, therefore, “pending”). Id. at 219. Scarber chose a different path.
Since Scarber did not move for reconsideration, the Michigan Supreme Court’s order was a final
judgment when it issued on March 8, 2011, after which his application for review was no longer
pending.
No. 14-2364 Scarber v. Palmer Page 5
Several of our sister circuits agree. See Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir.
2010); Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir. 2009). Most of those that do not agree
rely on precedents that predate the Court’s delineations of § 2244(d)(2) in Pace, Carey, Evans,
and Lawrence. See, e.g., Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 n.4 (3d
Cir. 2013) (quoting Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000)); Santini v. Clements,
498 F. App’x 807, 809 (10th Cir. 2012) (citing Serrano v. Williams, 383 F.3d 1181, 1185 (10th
Cir. 2004)); Escalante v. Watson, 488 F. App’x 694, 702 (4th Cir. 2012) (Davis, J., dissenting)
(quoting Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999)); Drew v. MacEachern, 620 F.3d 16,
21 (1st Cir. 2010) (quoting Currie v. Matesanz, 281 F.3d 261, 263 (1st Cir. 2002)); Streu v.
Dormire, 557 F.3d 960, 966 (8th Cir. 2009) (citing Williams v. Bruton, 299 F.3d 981 (8th Cir.
2002)); Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001). And, as discussed above, we are
not persuaded by the argument that, absent a challenge to a final court order, a properly filed
application is pending “until there is no other avenue the prisoner could pursue.” Cramer v.
Sec’y, Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006).
Scarber makes several “alternative arguments” on reply that were not raised in his
opening brief. “We have consistently held, however, that arguments made to us for the first time
in a reply brief are waived.” Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010). In any
event, they are without merit. The limitation period runs from “the date on which the factual
predicate of the claim . . . could have been discovered,” but only if the petitioner through due
diligence alleges newly discovered evidence. § 2244(d)(1)(D); see also McQuiggin v. Perkins,
133 S. Ct. 1924, 1929 (2013). After it has been tolled, the AEDPA statute-of-limitations clock
resumes when a final order issues, not when the court’s mandate takes effect or the petitioner
receives notice. Lawrence, 549 U.S. at 334.
For the foregoing reasons, we AFFIRM the dismissal of Scarber’s untimely habeas
petition.