                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0194p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 CAMERON HOLBROOK,                                     ┐
                               Petitioner-Appellant,   │
                                                       │
                                                       │
        v.                                              >      No. 14-1247
                                                       │
                                                       │
 CINDI CURTIN, Warden,                                 │
                              Respondent-Appellee.     │
                                                       ┘
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                  No. 2:13-cv-11235—Lawrence P. Zatkoff, District Judge..

                                 Argued: December 2, 2014

                            Decided and Filed: August 15, 2016

                  Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Matthew A. Shapiro, HOGAN LOVELLS US LLP, Washington, D.C., for
Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Matthew A. Shapiro, HOGAN LOVELLS US
LLP, Washington, D.C., for Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Cameron Holbrook, Kincheloe,
Michigan, pro se.

                                    _________________

                                         OPINION
                                    _________________

       JANE B. STRANCH, Circuit Judge. This case concerns the tolling of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) statute of limitations during the pendency of




                                              1
No. 14-1247                                    Holbrook v. Curtin                    Page 2


a State post-conviction motion. Cameron Holbrook, a Michigan prisoner, appeals the district
court’s judgment dismissing as untimely his federal habeas corpus petition brought under
28 U.S.C. § 2254. Based on the following reasoning, we REVERSE the order of the district
court and REMAND the case for further proceedings consistent with this opinion.

                                              I. BACKGROUND

       In 2008, Holbrook was convicted by a Michigan jury of first-degree murder and
possession of a firearm during the commission of a felony. As a third habitual offender, he was
sentenced to life imprisonment without the possibility of parole for the murder conviction and
two years’ imprisonment for the felony-firearm conviction. People v. Holbrook, No. 287383,
2010 WL 99010, at *1 (Mich. Ct. App. Jan. 12, 2010).

       AEDPA’s one-year statute of limitations began to run when his conviction became final
on August 23, 2010, 90 days after the Michigan Supreme Court denied his application for leave
to appeal the adverse decision of the Michigan Court of Appeals.              People v. Holbrook,
781 N.W.2d 836, 836 (Mich. 2010); Holbrook, 2010 WL 99010, at *8; see 28 U.S.C. § 2101(c);
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (explaining that a State prisoner’s direct
appeal concludes for the purposes of AEDPA’s one-year limitations period when the
“availability of direct appeal” to both the State courts and the Supreme Court has been
exhausted); Missouri v. Jenkins, 495 U.S. 33, 45 (1990) (explaining that the 90-day limit to
petition for certiorari in a civil case is “mandatory and jurisdictional”).

       On May 19, 2011, 269 days into the one-year limitations period, Holbrook filed a motion
for relief from judgment in State trial court. The trial court denied the motion on June 3, 2011.
Holbrook then filed an application for leave to appeal, which the Michigan Court of Appeals
denied on November 8, 2012. Michigan court rules allowed Holbrook 56 days, or until January
3, 2013, to submit an application for leave to appeal with the Michigan Supreme Court. Mich.
Ct. R. 7.302(C)(2) (2012).1 Holbrook filed his application on January 7, four days after the
deadline. The Michigan Supreme Court denied it as untimely on January 11.



       1
           Currently codified Mich. Ct. R. 7.305(C)(2).
No. 14-1247                                  Holbrook v. Curtin                                 Page 3


        No later than March 18, 2013, Holbrook filed a federal habeas petition in federal district
court under 28 U.S.C. § 2254 in which he raised fifteen counts, generally related to ineffective
assistance of trial and appellate counsel, though also alleging various errors on the part of the
trial judge and prosecutorial misconduct.2 The State moved for summary judgment on the basis
that the petition was time-barred because Holbrook’s post-conviction motion was no longer
“pending” within the meaning of AEDPA’s tolling provision as of November 8, 2012, when his
application for leave to appeal the trial court’s order was denied by the Michigan Court of
Appeals. On this reasoning, the statute of limitations clock resumed running at the time of the
Court of Appeals’ rejection rather than after the 56-day period in which Holbrook could have
sought review by the State Supreme Court, making his federal habeas petition untimely by at
least two months.

        The district court granted the State’s motion for summary judgment and dismissed
Holbrook’s habeas petition as untimely. Relying on the Supreme Court’s decision in Evans v.
Chavis, 546 U.S. 189 (2006), the district court agreed that “[b]ecause [Holbrook] did not timely
seek leave to appeal with the Michigan Supreme Court, the tolling of the limitations period
ended when the Michigan Court of Appeals denied leave to appeal on November 8, 2012,” rather
than continuing for the 56-day period to appeal.               Holbrook’s habeas corpus petition was
therefore due on February 12, 2013. Id. The district court also found that Holbrook was not
entitled to equitable tolling.

        It is undisputed by the parties on appeal that the one-year statutory limitations period on
Holbrook’s habeas petition started on August 23, 2010, 90 days after the Michigan Supreme
Court denied his application for leave to appeal his conviction, and stopped 269 days later on
May 19, 2011, when he filed the motion for relief from judgment in State trial court. The
limitations period was tolled until at least November 8, 2012, when the Michigan Court of
Appeals denied Holbrook’s application for leave to appeal. At this point, the parties’ arguments
diverge.


        2
          Holbrook’s petition was dated March 1, 2013, but the district court noted that the attached prison
documents indicated that he gave it to prison officials to be mailed on March 18. The date discrepancy makes no
difference to the question of timeliness on appeal.
No. 14-1247                              Holbrook v. Curtin                          Page 4


       Holbrook contends that his post-conviction motion remained “pending” from the time he
properly filed his motion for relief from judgment in the trial court until January 3, 2013, the
expiration of the period to seek review by the State’s highest court. After January 3, he does not
dispute that the limitations period continued to run without further tolling despite his subsequent
untimely appeal to the Michigan Supreme Court. Because the time in which a properly filed
State court post-conviction motion is pending does not count toward the limitations period,
Holbrook argues that his § 2254 habeas petition was filed in the district court within the AEDPA
limitations period.

       The State responds that, because Holbrook’s appeal to the State Supreme Court was
untimely, his claim was not tolled during the 56 days in which he could have appealed the denial
by the appellate court. The State asks that we look back to the November 8, 2012 denial by the
Michigan Court of Appeals and retroactively start the clock at that point.

       This court granted Holbrook’s application for a certificate of appealability, finding that
“reasonable jurists could debate the district court’s ruling that Holbrook’s petition was untimely”
in light of this court’s conflicting unpublished decisions.

                                          II. ANALYSIS

       We review de novo the district court’s dismissal of a habeas corpus petition as barred by
AEDPA’s statute of limitations. Scarber v. Palmer, 808 F.3d 1093, 1095 (6th Cir. 2015),
petition for cert. filed, 84 U.S.L.W. 3546 (U.S. Mar. 18, 2016) (No. 15-1174). AEDPA sets a
one-year limitations period for federal habeas corpus petitions by “a person in custody pursuant
to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The limitations period runs from the
latest of four dates—the one relevant here is: “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such review[.]”
Id. § 2244(d)(1)(A). AEDPA also contains a tolling provision, which specifies that “[t]he time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.” Id. § 2244(d)(2).
No. 14-1247                              Holbrook v. Curtin                             Page 5


       Examination begins with review of our cases, both controlling and persuasive, that
establish the governing legal framework. We then consider Michigan’s finality rules and the
public policy goals underlying AEDPA’s tolling and limitations provisions. Because we find
that Holbrook is entitled to statutory tolling, we need not address his equitable tolling claim.

       A. AEDPA’s Limitations and Tolling Provisions

       The contours of AEDPA’s limitations and tolling provisions have been the source of
some confusion, as seen in a number of unpublished opinions within our circuit. This case
presents an opportunity to clarify a central question at the intersection of AEDPA’s limitations
and tolling provisions: When is a State post-conviction motion “pending” for purposes of tolling
the limitations period?

       In Whitcomb v. Smith, which presented a scenario similar to the current case, we followed
our sister circuits and determined that the pendency of a State post-conviction motion continued
“until the expiration of the period for further State court review, whether or not the petitioner
actually seeks such review.” 23 F. App’x 271, 273 (6th Cir. 2001). There, the petitioner had
filed a motion for relief from judgment in State court but did not appeal the trial court’s adverse
decision. More than a year later, he filed a federal habeas petition that was dismissed by the
district court for exceeding the AEDPA one-year statute of limitations. On appeal, we explained
that the district court erred when it failed to toll the statute of limitations for the “period during
which [the petitioner] could have appealed the trial court’s denial of his motion for relief from
judgment.” Id.

       This holding was reinforced the following year by Carey v. Saffold, 536 U.S. 214 (2002),
in which the Supreme Court considered the effect of a State habeas application on the limitations
period for a subsequently filed federal habeas petition. The Court looked to the dictionary
definition of “pending,” as well as the policy interests underlying AEDPA’s exhaustion
requirement, and concluded that tolling extended “until the application has achieved final
resolution through the State’s post-conviction procedures.” Id. at 220; see also Martin v. Wilson,
110 F. App’x 488, 490 (6th Cir. 2004) (citing Saffold, 536 U.S. at 219-20, for the proposition
No. 14-1247                             Holbrook v. Curtin                            Page 6


that the statute of limitations on petitioner’s habeas claim was tolled during the period in which
he could have appealed the denial of his post-conviction motion).

       In 2006, the Supreme Court’s decision in Evans v. Chavis, 546 U.S. 189 (2006), raised
questions regarding this approach. Evans considered the timeliness of a federal habeas petition
filed more than four years after AEDPA’s effective date, where the petitioner did not appeal the
denial of his post-conviction motion for three years. Id. at 195, 200. California employs a
“reasonableness” standard on collateral review rather than observing a predetermined deadline
for appeal. Id. at 192-93. The petitioner argued that he had sought State review within a
reasonable time, thereby tolling the statute of limitations during the entire three-year period. Id.
at 195-96.

       Without commenting on the precise parameters of “reasonable time,” the Court assumed
California’s procedure did not diverge significantly from the timeliness rules of other States and
concluded that the federal habeas petition was obviously untimely. Id. at 199-201. The Court
reasoned that any delay beyond a reasonable time did not properly toll the AEDPA limitations
period, noting that it did not see “how an unexplained delay of this magnitude [over three years]
could fall within the scope of the federal statutory word ‘pending’ as interpreted in Saffold.” Id.
at 201 (citing Saffold, 536 U.S. at 222-23). The Court did not, however, draw any conclusions
about how much of the delay was “reasonable” and therefore implicated AEDPA’s tolling
provision. See id. at 200-01. Nor did the Ninth Circuit consider this question on remand.
Chavis v. Evans, 446 F.3d 923 (9th Cir. 2006) (reinstating the judgment of the district court).

       We once again took up the issue of AEDPA tolling during the pendency of a State
post-conviction motion in Ross v. McKee, 465 F. App’x 469 (2012). This unpublished opinion
diverged from our holding in Whitcomb by noting with approval the district court’s order, which
“held that the limitations period began to run when the Michigan Court of Appeals denied
[petitioner’s] motion for reconsideration” where the appeal of a post-conviction motion was
untimely. Id. at 472. Ross framed this change in approach with reference to Evans, apparently
reading that case to require that the court retroactively reach back through a State post-conviction
motion’s pendency to start the limitations clock at the lower court’s decision when an appeal
from that decision was not timely filed. Id. at 473.
No. 14-1247                              Holbrook v. Curtin                            Page 7


          The Ross panel’s reading of Evans may have been overly broad. As previously noted,
Evans stands only for the proposition that the entire unexplained three-year delay between the
adverse decision of the lower court and an untimely appeal could not be “reasonable” under
California law. Evans, 546 U.S. at 200-01. The Court’s holding was not premised on a finding
that the clock continued to run for the entire three-year period, including the reasonable time for
appeal.

          Soon after Ross, we examined a related but distinct inquiry as to whether AEDPA tolling
continues after final disposition of a post-conviction motion by the State courts in Scarber v.
Palmer, 808 F.3d 1093 (6th Cir. 2015). There, the petitioner challenged the dismissal of his
habeas corpus petition as untimely on the basis that the statute of limitations was tolled “during
the three-week period when he could have moved for reconsideration of the rejection” of his
State post-conviction motion. Id. at 1094-95. This court rejected the petitioner’s argument and
held that “the limitation period resumed running the day after the Michigan Supreme Court
upheld the denial of [petitioner’s] request for leave to appeal.” Id. at 1095. Though the
petitioner could have “resuscitated his petition by seeking reconsideration,” he did not do so and,
therefore, failed to trigger the tolling provision again once the motion’s pendency ended upon
review and final disposition by the State’s highest court. Id. at 1095-96.

          Scarber, our circuit’s only controlling precedent on a related matter, does not preclude
Holbrook’s argument before us today. First, the Scarber panel considered a distinct procedural
posture. While Holbrook’s argument focuses on the period during which a post-conviction
motion could be appealed, Scarber looked beyond to the point after which the State Supreme
Court had issued a final determination on that motion. Our understanding of this distinction is
reinforced by one of two out-of-circuit cases that Scarber cites in support of its holding. See
Saunders v. Senkowski, 587 F.3d 543, 548-49 (2d Cir. 2009) (recognizing that a State court
petition is pending “through the time in which the petitioner could file an application for a
certificate for leave to appeal,” but that petitioner does not benefit from tolling during the period
in which he could have, but did not, file a motion for reconsideration). The facts of the other
persuasive case on which Scarber relies are entirely distinguishable from the present matter. See
Simms v. Acevedo, 595 F.3d 774, 780-81 (7th Cir. 2010) (noting that petitioner’s improperly
No. 14-1247                              Holbrook v. Curtin                            Page 8


filed motion for rehearing of the State court’s denial of a petition for leave to appeal did not toll
the AEDPA limitations period where he never filed the required motion for reconsideration).

       Second, our decision not to blindly apply Scarber to a separate and distinct procedural
posture avoids deepening a circuit split. See e.g., Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80, 85 n.4 (3rd Cir. 2013) (observing the pendency of a State post-conviction motion
during the time petitioner could seek review by the State Supreme Court irrespective of whether
review is actually sought); Drew v. MacEachern, 620 F.3d 16, 21 (1st Cir. 2010) (reaffirming
that a post-conviction motion is pending from the time it is filed until “further appellate review is
unavailable”) (internal quotation marks omitted); Streu v. Dormire, 557 F.3d 960, 966 (8th Cir.
2009) (considering a post-conviction motion pending until “the time for appeal expires, because
until then, the possibility remains that the application will be considered by the appellate court”).
Scarber attributes this disagreement to the fact that the cited cases “rely on precedents that
predate the [Supreme] Court’s delineations of § 2244(d)(2)” in Saffold, Evans, and other cases
distinguishable from the instant matter. Scarber, 808 F.3d at 1097. However, the above-cited
authorities do not predate the Supreme Court’s opinions, and we assume that our sister circuits
considered the relevant decisions of the Supreme Court and determined that they were consistent
with the circuits’ approach to statutory tolling.

       Finally, insofar as Scarber considered issues related to the current appeal, it may support
Holbrook’s argument. Specifically, Scarber’s description of how the petitioner’s motion was
finally determined by the State Supreme Court such that it would need to be “resuscitated” by a
motion for reconsideration, id. at 1096, lends support to Holbrook’s contention that a post-
conviction motion’s pendency ends with review by the highest court.

       We reject the argument that dicta in Scarber should be taken from its procedural context
and read to suggest a petitioner retroactively loses tolling of the time between a lower court’s
denial and the period for seeking higher court review because such an extrapolation would run
afoul of the Supreme Court’s decision in Gonzalez v. Thaler, 132 S. Ct. 641 (2012). That
opinion was not cited by the panel in Scarber, but lends significant support to our holding today.
In Gonzalez, the Supreme Court specified that a judgment does not become “final” on direct
appeal until the “time for seeking review with the State’s highest court expire[s],” even if a
No. 14-1247                              Holbrook v. Curtin                             Page 9


petitioner does not appeal to the State’s highest court. Id. at 653-54; see also id. at 653
(explaining that each of the two prongs of § 2244(d)(1)(A) relates to a “distinct category of
petitioners”). Gonzalez itself based its holding in part on an earlier decision, Clay v. United
States, in which the Supreme Court held that the one-year statute of limitations in 28 U.S.C.
§ 2255 begins to run upon expiration of the time to file a petition for certiorari on direct review,
whether or not a federal prisoner actually files a petition. 537 U.S. 522, 524-25, 532 (2003).

       Because, under Gonzalez, Holbrook would be entitled to tolling if he had not appealed
the Michigan Court of Appeals decision, it makes little sense to deprive him of this time as a
consequence of filing an untimely appeal. Holbrook correctly notes that, were we to depart from
Gonzalez, whenever a question arose as to whether an appeal would be timely, prisoners may opt
to forgo an appeal altogether in order to preserve tolling rather than risk seeking final resolution
before the State Supreme Court and retroactively starting the AEDPA clock through the filing of
an untimely appeal. For the reasons stated above and below, we reject a rule that would
engender so much uncertainty.

       B. Michigan’s Finality Rules

       As further persuasive authority for our holding that Holbrook’s motion was “pending”
during the entire period for appeal, we note that this approach is supported by Michigan’s finality
rules. See Payne v. Kemna, 441 F.3d 570, 571-72 (8th Cir. 2006) (explaining that while the
meaning of “pending” regarding a federal habeas petition is a matter of federal law, federal
courts should look to State law to determine when a post-conviction motion has been finally
resolved through the State’s post-conviction procedures) (citing Saffold, 536 U.S. at 219-20).
Pursuant to Michigan’s Appellate Rules, a judgment by the Court of Appeals that is not appealed
is generally “effective after the expiration of the time for filing an application for leave to appeal
to the Supreme Court . . . .” Mich. Ct. R. 7.215(F)(1)(a). On this basis, a Michigan court would
likely toll the statute of limitations on Holbrook’s habeas corpus petition until January 3, 2013,
the last day for appeal to the State Supreme Court, rather than November 8, 2012, the date of the
Court of Appeals decision.
No. 14-1247                                     Holbrook v. Curtin                                      Page 10


         C. Policy Support for Holbrook’s Argument

         While Gonzalez considered the AEDPA limitations provision as it related to a direct
appeal, it is applicable in equal force to the post-conviction context, where the policy interests
enumerated by the Supreme Court in Saffold apply. This is because the approach put forward by
Holbrook “promotes the exhaustion of state remedies while respecting the interest in the finality
of state court judgments.” Saffold, 536 U.S. at 220 (internal quotation marks omitted).

         In Abela v. Martin, this court observed that “[a] statute of limitations should be clear”
such that, “[a]t any given point, courts and litigants should be able to determine whether the
limitations period has begun, is running, is tolled, or has expired[.]” 348 F.3d 164, 172 (6th Cir.
2003) (en banc). Though that opinion has been called into question on other grounds,3 Abela’s
explanation of the policy interest undergirding its decision—that “whether a limitations period is
running should not depend on events that happen only at a later date,” id.—remains applicable
and was subsequently affirmed by Gonzalez when the Supreme Court refused to retroactively
adjust AEDPA tolling based on whether or not the petitioner appealed, Gonzalez, 132 S. Ct. at
653-54.

         Reversing the district court’s order in this case promotes finality in State court review and
clarity in subsequent federal habeas actions without jeopardizing AEDPA’s additional goals of
comity and federalism. See Williams v. Taylor, 529 U.S. 420, 436 (2000). Our present holding
does not require us to take up the question of whether the Michigan Supreme Court erred in
dismissing Holbrook’s post-conviction motion as untimely. See Vroman v. Brigano, 346 F.3d
598, 604 (6th Cir. 2003) (“This court . . . does not function as an additional state appellate court
reviewing state-court decisions on state law or procedure.”). Instead, we interpret the term
“pending” as used in a federal statute by relying on controlling precedent from the Supreme


         3
           Abela may have been overruled in part by Lawrence v. Florida, in which the Supreme Court determined
that because it was not a “State” court, and the AEDPA tolling provision specifically referenced “State post-
conviction or other collateral review,” the tolling period ended with the issuance of a final determination by a State’s
highest court, rather than extending for the 90-day period in which a petitioner could have filed a petition for
certiorari before the United States Supreme Court. 549 U.S. 327, 329, 331-32 (2007). The holding in Lawrence
appears to conflict with Abela, which had previously held that “‘pending’ also refers to the time allowed an inmate
to file a certiorari petition [to the United States Supreme Court] regardless of whether such filing actually occurs.”
Abela, 348 F.3d at 172. However, Lawrence does not affect our decision in this case.
No. 14-1247                             Holbrook v. Curtin                        Page 11


Court and this circuit. Based on these authorities, we hold that Holbrook’s federal habeas
petition was timely filed because AEDPA’s one-year statute of limitations was tolled during the
period in which he could have, but did not, appeal the Michigan Court of Appeals’ denial of his
motion for post-conviction relief.

                                         CONCLUSION

       For these reasons, we REVERSE the order of the district court and REMAND the case
for further proceedings consistent with this opinion.
