808 F.3d 1093
6th Cir.2015Background
- Marlon Scarber was convicted and sentenced to life; state appeals and post-conviction proceedings spanned 2007–2013.
- AEDPA limitations period began running on March 20, 2009 (90 days after state-court judgment).
- Scarber filed a post-conviction motion on November 12, 2009; the Michigan Supreme Court denied leave to appeal on March 8, 2011.
- District court tolled AEDPA while state collateral review was pending, then concluded the limitations period resumed the next day and Scarber’s federal habeas petition was untimely.
- Scarber argued the limitations period remained tolled for two additional three-week windows when he could have filed motions for reconsideration under Michigan Court Rules.
- Sixth Circuit held that AEDPA tolling does not extend through periods when a petitioner had the opportunity but did not timely file a properly filed application (e.g., motion for reconsideration).
Issues
| Issue | Scarber's Argument | State's Argument | Held |
|---|---|---|---|
| Whether AEDPA tolls during a period when petitioner could have but did not file a motion for reconsideration in the state high court | Tolling should cover the three-week windows to file reconsideration, so limitations remained paused | Tolling ends when the state court issues a final order if no timely, properly filed application is pending | Court held tolling does not cover periods when petitioner could have filed but did not; limitations resumed the day after the Michigan Supreme Court denied leave |
| Whether the statute begins after the time to seek direct review has expired even if petitioner could have sought further relief | Statute should remain tolled until potential state reconsideration deadlines expire | AEDPA runs after direct-review period expires; collateral-review tolling requires a properly filed application to be pending | Held statute runs after time to seek direct review expires; collateral tolling requires a properly filed, pending application |
| Whether untimely or unfiled state filings can make an application "pending" under § 2244(d)(2) | Untimely opportunity or mere potential avenues should toll | Only timely, properly filed applications render review "pending" for tolling | Held untimely or unfiled actions do not make an application pending; petitioner must act to preserve tolling |
| Whether later events (mandate effect or notice) control tolling resumption | Tolling resumes only after petitioner receives notice or mandate | Tolling resumes when state court issues final order denying review | Held tolling resumes upon issuance of the final state-court order, not upon receipt of mandate or notice |
Key Cases Cited
- Bronaugh v. Ohio, 235 F.3d 280 (6th Cir. 2000) (AEDPA limitations start after time to seek certiorari expires)
- Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745 (6th Cir. 2011) (standard of review and discussion of Lawrence’s impact)
- Lawrence v. Florida, 549 U.S. 327 (2007) (state-court application is not pending after final judgment)
- Carey v. Saffold, 536 U.S. 214 (2002) (collateral application is pending while timely appeal is filed)
- Evans v. Chavis, 546 U.S. 189 (2006) (pending status requires timely filing of appeal to toll)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (untimely state postconviction petitions do not toll AEDPA)
- Sherwood v. Prelesnik, 579 F.3d 581 (6th Cir. 2009) (example where reconsideration was timely filed and tolled AEDPA)
- McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (discusses actual innocence and diligence for newly discovered evidence)