petitioner appellant cameron hope ed has one year statute of limitations as told during a period for appealing a lower court's denial of a state post conviction motion to a higher state court whether or not the petitioner ultimately ends up filing a timely appeal that is the conclusion reached by the third fourth fifth eighth tenth and eleventh circuit no other circuit has held to the contrary in a published opinion this court need not overrule scarboro in order to join that consensus ed statute of limitations is not told during the period for seeking reconsideration in the state's highest court but the period for seeking reconsideration is not a part of the state's ordinary post conviction process that process is complete once the state's highest court has disposed of the petitioners post conviction motion or denied review by contrast a state's post conviction process is not yet complete during the period for seeking leave to appeal because there is a higher court to appeal to but if scarborough really means what the state says it means then the decision changed the rules governing governing the timeliness of federal habeas petitions in the circuit and it would be unfair to retroactively apply those rules especially given the confused state of this court's unpublished case law but like to begin with statutory tolling in the text of twenty two forty four d to twenty two forty four d two says that is told while a state post conviction most in motion is pending in state court the supreme court has held that is the petition remains pending until the application is achieved final resolution through the state's post conviction procedures well the state post conviction process has not reached a final resolution so long as appeal to a higher court remains available otherwise the finality of the state post conviction process would turn on after the fact contingencies so if the petitioner filed a timely application for leave to appeal the underlying post conviction motion would not have achieved a final resolution during the period for seeking leave to appeal on the state's view on the other hand if the petitioner does not end up filing an application a timely application for leave to appeal that very same post conviction potion would not have achieved sorry would have achieved a final resolution during that very same period the texting there is th express even years argument comparing the language of twenty to forty four d one a which sets the time for a one bed clock starts running in twenty four twenty two forty forty two which is the tolling provision no i  have language in one provision and then you have a portion of that language appearing in another provision of the same statute and the omission of another portion of that language so you'd have a very strong as argument against us in this case if you know instead of saying is pending in twenty two forty forty two it said that the state conviction process becomes final by the conclusion of appellate review omitting the phrase or the expiration  of the time for seeking such review which is the other phrase that p it appears in twenty two forty forty one that's not what it sets twenty two forty four d two says that you get tolling while the state post conviction motion is pending in the supreme court has said that that since it's pending until the decision becomes final so it makes sense to simply interpret the meaning of is pending in light of ordinary rules of finality and policy regarding not making decisions retroactively based on that that's that's exactly right your honor in both cases you want to know both the litigant who's actually litigating his post conviction motion and a court that might be considering his timeliness of his federal habeas petition you want to know in the moment is it puts clock really running right now or is it stopped is it possed and on the state's view in the view adopted by the district court but no other of state post conviction remedies the supreme court and this is another important distinction between this case and scarborough in the motion for reconsideration period and probably the easiest way to understand distinction so the supreme court has held in the a sullivan case that to fill at has exhaustion requirement to properly exhaust state post conviction procedures you must file an application for leave to appeal seeking discretionary review in the state's highest court if you haven't done that you're in trouble with you know in terms of procedural default or lack of exhaustion by contrast it's equally obvious that you need not file a motion for reconsideration in the state's highest court to properly exhaust and that just reaffirms that the stay post conviction process has already come to a conclusion and that in the words of scarboro itself you need to take some action to resuscitate the post conviction motion that has already died by conclusion of the state's post conviction process well if sobber is the motion for reconsideration case m r i i mean  motion to reconsider it didn't the statute starts running again two days later you file another motion for reconsideration that tells it i mean you could  going back to your question just rants about the express uniqueness argument and then talking about this notion of resuscitate there really are two lines of reasoning running through scar one is the notion that the motion of the underlying post conviction motion is dead by the time that the state's highest court has rendered his decision that you need to take some action to resuscitate it the other line is this idea of express unius burdening the petitioner with the obligation of kind of keeping his post conviction motion alive throughout the process and we think it you know in order to avoid a circuit split that it's reasonable to focus on the first line of reasoning which makes a lot of sense in the second which frankly doesn't hold much water in this especially true because it is pending that phrase would be such an odd way for congress to burden petitioners it's a passive phrase the the provision is focused on the relationship between the post conviction motion and the state's post conviction process not the relationship between the post conviction motion and what the actual petitioner is doing with it so it just doesn't really make a lot of sense so it's perfectly reasonable and fair for this court to focus on the one line of reasoning that really mattered in scarborough and to distinguish the motion for reconsideration period from the most application for me to appeal period and in fact that's the very distinction that the thirty third circuit drew a narrow be frank at page three nineteen of its opinion and it focused as i said on this  reform the other argument that has come up is that chavis forecloses this reading the supreme court's decision and that's just not the case none of the other circuits have adopted the district court's reading in a published opinion of chavis and in fact at least the third in the lemon circuits have cited chavis in opinions applying their prior opinions granting tolling for this very period that we're talking about here and that makes sense because each time the court have a stated it's holding it refer to the period between the lower court's adverse decision and the filing of a notice of appeal so the question in chavis was when do you get tolling right up to the time when you actually make the final thing of your application for leave to appeal and the answer was chavis well you filing has to have been timely if it wasn't timely you do not get tolling for that entire period but it didn't say anything about whether you might get tolling for a portion of that period if your filing is ultimately untimely and there was just no occasion to consider that in chavis because chavis needed all but two days of a three year in one month delay to count is reasonable under california's system and to give him tolling for that period finally i just want to say that we do raise equitable tolling as an alternative argument obviously the court may not reach equitable toing if it finds that mr holbrooke was a entitle to statutory tolling but at the very least scarper did kind of change the rules about the timeliness of federal h good morning may it please the court bruce edwards michigan assistant attorney general on behalf of the warden just dodger as to the example you gave about you can seek reconsideration of the denial of reconsideration there's a michigan court rule that specifically forbids anybody from filing a motion for reconsideration of the denial of a motion for reconsideration so that could have well it couldn't happen in michigan right might happen somewhere else i have been in ohio i could comment on that but i would be surprised if other states didn't have the same well there is that distinction between a direct appeal motion and a motion for reconsideration i think you would grant me that they are two different birds they are but the petitioners are supposed to be acting diligently and you know the statutes that statute is told when a properly filed application is pending and evidence is that the statute of limitations is told during the period when a lower court's adverse determination and the prisoner's filing of a notice of appeal provided that the filing of the notice of appeal is timely as the language the scar published binding case on this panel so if it can't be distinguished his arguments as to why it was wrongly decided should be ignored by this court because rehearing his not going to be granted in scarborough so i don't think there really is a distinction that  order by a panel of this court apply the scarboro rule in charles quatrain case and in that case the patil her failed to file an appeal from a denial of a motion for relief from judgment in the trial court and this court said well the starboard rule applies you didn't pursue it the fact that you could have when you sat on your hands but you didn't pursue it you don't get the benefit of that period of time and hearkening back to charges if that's so clear and interpret in these  provisions why would all the other circuits in the country go against the interpretation that you're urging on this i don't think all the other circuits in the country do i mean counsel's original brief in this case every single panel or every single  with several other circuits and gave reasons why they disagreed with them and did you look at those two cases see if they were on point here or whether they involved something like this within a reasonable time situation in california i mean that's a whole nother bird and i thought sharper in fact relied on evans and evans i remember a time in tennessee when you could file a post conviction action existence when those file within a reasonable time provisions came about and my guess is that that i haven't looked up the history of the california reasonable time rule but my guess is that it was it fell within that time period a period where there wasn't any statute of limitations as a man as a federal matter i mean everybody was shocked when the when they came down with this thing and and then when the court let me just let me just tell you that it wasn't there when i first came on it was a shocker it was a shocker among judges all over the country so at this point that out is a matter of history for the portion of the time during which the appeal could have been filed as opposed to the four year california deal for reasonable miss which which i think we all agree is is a very different animal why isn't that distinction along with the holding in gonzales dispositive of creating a rule that can actually be applied well where you are how you resolve the rule under your analysis depends on recognizing that something is pending under the definition of pending until the time  pires and if you file then your say and if you don't file then it's retroactive and you have to go back and say all right well now we're going to say it indeed way back here don't you see a problem with with petitioners being concerned about final laying on the deadline or near the deadline time because just the act of having done that ma the make them lose on the ed analysis so won't that discourage people from completing collateral review and and formulating the case to a complete michigan court also he had fifty six days to file an application for leave with the michigan supreme court and had he done if it was six days is a pretty long period of time it's not twenty one days like in scarborough and he had fifty six days and he didn't do anything within those fifty six days he sat on his hands now the if he had filed it on the fifty fifth day yes it would have been timely and he would have got the benefit of that time but the burden is on him to act in an expeditious in a timely manner and you know they don't want us there period of time why doesn't consolidate analysis say that you have pending includes any time for seeking relief even if no appeal most well why doesn't that why doesn't that undercut your argument wasn't gonzales a direct appeal and not a collateral appeal yes but arbor says they're totally different separate statutes separate analysis well they do under or under a doctrine analysis that you're opposing counsel says analysis that seeks to extend to determine that the statute intentionally made a distinction between collateral and direct review all the wording of the two statutes is different and scarboro is a published case has construed the statutes i think it's binding on the panel because unless you know a panel on bob overwhelms it that's that's the rule now in the six or ok but they construed the statute the two statues they said the direct appeal statute is worded differently than the collateral appeal statute and you can't get the benefit of time when you sit on your hands and don't file a timely appeal  resuscitation language work that you can file and resuscitate if it's within the appropriate time that is correct you have fifty six days to do something if you do it within fifty six days you're all set if you file on fifty seventh day the court clerk rejects it and you don't get any of those days because you didn't act in a timely manner and that goes back to charges saying provided that is filed in a timely manner you get the benefit of those days i would like to briefly address the equitable tolling argument i have several arguments first i believe it's outside the scope of the certificate of appeal ability if you read the order granting a certificate of appeal ability the court basically says well there's a two thousand one on publish case that says he might get statutory tolling there's a two thousand and twelve unpublished cases as he wouldn't get statutory tolling therefore we're going to grant a certificate of appeal ability no mention or discussion of tolling at all in the order granting a certificate  ability further in the district court holbrook did not argue anything is saying i'm entitled to equitable tolling he didn't say i knew about this on published case from two thousand and one has if you read his response he basically because my motion for summary judgment says judge please grant summary judgment but if if you think i'm wrong please give me sixty more days to file an answer his entire answer is basically why should the state get sixty more days they should have filed their answer now he didn't say i'm entitled to equitable tolling came up with an argument as to why he should get equitable tolling but hall versus warden case i mention in my twenty eight jail letter specifically says that the six circuits function is to review the case that was presented to the district court rather than the better case fashioned after a district court's unfavorable order and there just was no argument in the district court as to why equitable tolling should apply so i've asked this court to follow the logic of earth the holding and all versus war and also find that equitable tolling is outside the scope of the certificate of appeal ability and if there are any other questions if not all all right thank you very much and ask that your firm the district  was wrongly decided you did not get tolling for the period for seeking for up filing a motion for reconsideration if you don't actually file the motion the necessary reasoning to that conclusion was that a motion f resuscitate the underlying post conviction motion that means that the underlying post conviction motion was dead or final by the time that's just not the case for the period for filing an application for leave to scarboro we're just asking the court to draw the very same distinction the circuit third circuit has drawn this court want to make a different question makes no difference first of all it's obviously unpublished and not binding on this panel and second it's not even persuasive court's analysis frankly reflects that fact that there was no adversarial presentation on the question it doesn't take account of any possible distinctions between the two i think if you it had an adversarial presentation it would have been a different case and it would have at least had to with with these kinds of counter arguments and i also just want to be clear one last point about scarborough that this court would definitely be creating the circuit split if it ruled for the state in this case my friend pointed to two cases that's gerber cited those were cases from the second and seven circuits if you look at those cases it's at page ten ninety seven of the scarboro opinion they were both had to do with motions for reconsideration they were not about the period at issue in this case which is the period for filing an application for leave to appeal turning to chavis i mean we've already discussed that he quoted from the opinion in chavis each time the court says the provided that fair phrase provided that there is a timely filing of an application for leave to appeal the court is referring expressly to the period between the lower court's adverse decision and again the filing so the question is when do you get tolling right up until the time of the filing in the answer is provided it is timely but that says nothing about whether you're entitled to some portion of the period when you file an untimely application for leave to appeal and then i think judge stretches question the my opponent doesn't take issue with the fact that on the state's reading and on the district court's reading of the statute you would have tolling and the running of the statute of limitations turn on ex post contingencies and that's just a facade her way for the snot the way that statutes of limitations and tolling provisions are supposed summary judgment motion the district court it addressed equitable tolling at length and this court's coa says hope works application for a certificate of appeal ability is granted for claims one through fourteen and its motion to proceed in forma popper's is granted there's no been denied access to a state transcript during the state process so it's clearly within the scope of the