A number of circuits have found that a district court can raise the AEDPA limitations period sua sponte. See, e.g., Jackson v. Secretary for the Department of Corrections, 292 F.3d 1347, 1349 (11^th Cir. 2002); Acosta v. Artuz, 221 F.3d 117, 124 (2^nd Cir. 2000); Hill v. Braxton, 277 F.3d 701, 706 (4^th Cir. 2002); Kiser v. Johnson, 163 F.3d 326, 329 (5^th Cir. 1999); Herbst v. Cook, 260 F.3d 1039, 1042 (9^th Cir. 2001).

On the other hand, at least three circuits have held that the statute of limitations is an affirmative defense that is subject to waiver. See, e.g., Nardi v. Stewart, 354 F.3d 1134 (9^th Cir. 2004) (the state waives its statute of limitations defense by filing a responsive pleading that fails to affirmatively set forth the defense); Robinson v. Johnson, 313 F.3d 128, 137 (3rd Cir. 2002) (opinion on panel rehearing) (affirmative defenses such as the statute of limitations "under the AEDPA should be treated the same as affirmative defenses in other contexts, and, if not pleaded in the answer, they must be raised at the earliest practicable moment thereafter" or be deemed waived.), cert denied, 540 U.S. 826 (2003); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002) (state's failure to raise issue of timeliness resulted in waiver of requirement under AEDPA that petition be filed within reasonable time after effective date of AEDPA). The Eleventh Circuit, in contrast, has rejected the reasoning of Scott and Nardi regarding waiver of the statute of limitation defense. Day v. Crosby, ___ F.3d ___, 2004 WL 2698439 (11^th Cir. Nov. 29, 2004) (district court acted properly in sua sponte dismissing habeas petition as untimely after the state mistakenly conceded the timeliness of the federal habeas petition);

See also Burger v. Scott, 317 F.3d 1133 (10^th Cir. 2003) (finding that limitation period for raising ex post facto challenge to changes in parole process began to run under § 2244(d)(1)(D) when the petitioner first received notice of the change in his parole hearing date).

Similarly, in Giesberg v. Cockrell, 288 F.3d 268 (5^th Cir. 2002), a case involving a § 2254 petition, the Fifth Circuit ruled that the petitioner’s conviction became final when the United States Supreme Court denied his certiorari petition, not when his rehearing petition was denied by the Supreme Court.

In Salinas v. Dretke, 354 F.3d 425 (5^th Cir. 2004), the Fifth Circuit addressed a situation where a petitioner was granted permission to file an "out-of-time" petition for discretionary relief after he failed to timely appeal the affirmance of his conviction. The petitioner argued that his conviction did not become final until the "out-of-time" petition was denied by the highest state court. The Fifth Circuit disagreed, pointing out that petitioner obtained the right to reactivate his direct appeal through a state habeas petition. This led the appeals court to find that petitioner’s conviction became final when his time for filing the petition for discretionary relief originally expired. In reaching this conclusion, it contrasted Orange v. Calbone, 318 F.3d 1167 (10th Cir.2003), where the granting of an "appeal out of time" was found to delay the date on which the conviction became final. But this was because the procedure offered by the Oklahoma Court of Criminal Appeals was part of that state’s direct appeal process. Here, the Texas procedure for an "out-of-time" petition was part of the collateral review process, and thus it did not impact the time at which the conviction became final.

In Foreman v. Dretke, 383 F.3d 336 (5^th Cir. 2004), the Fifth Circuit concluded that the petitioner's timely filed appeal to the state intermediate court, which was dismissed for "want of jurisdiction," and his subsequent timely petition for discretionary review (PDR) were part of "direct review" proceedings for purposes of the AEDPA limitations period. Thus, the AEDPA clock did not begin to run until 90 days after the PDR was denied. The court reasoned that the petitioner had engaged in the direct review process, even though it proved ineffectual. The appeals court refused to read into the AEDPA limitation period a requirement that the attempt at direct review have been "valid." The appeals court further observed that the appeal was dismissed on jurisdictional grounds because the petitioner had sought to challenge the guilt adjudication, which was prohibited under the particular circumstances of the petitioner’s case. But a challenge to the sentence would have been permitted. The court then found that "[i]t would be unnecessarily complicated to make a petitioner's AEDPA timeline depend on the content of his state appellate briefs."

The Sixth Circuit in McClendon v. Sherman, 329 F.3d 490 (6^th Cir. 2003), rejected an argument that because the petitioner raised a claim of ineffective assistance of appellate counsel in post-conviction proceedings, the conviction did not become final until the collateral proceedings were completed. Even in the context of Ohio’s unique law, the filing of an ineffective assistance of appellate counsel claim merely tolls the limitation period, it does not restart it. See also Allen v. Yukins, 366 F.3d 396 (6^th Cir. 2004).

In Moore v. Knight, 368 F.3d 936 (7^th Cir. 2004), the appeals court held that the one year limitation period for petitioner’s claim of constitutional error commenced on the date he received information from his investigator detailing the results of an investigation into the trial judge's ex parte communications with jury. Although the trial judge had disclosed at trial that she had communicated with the jurors ex parte in response to a note she received from them, she had claimed that her response was that she could not answer the jurors’ questions. It was not until early 1997, around the time petitioner’s conviction became final, that petitioner was informed by a friend that there were rumors that petitioner’s jury had been improperly misled or coerced. The friend investigated the allegations and reported back to petitioner in May 1998, with affidavits from two of the jurors. According to the appeals court, petitioner had no reason prior to early 1997 to suspect that a prejudicial constitutional violation had occurred in his case. Once learning of the possible error, he exercised due diligence to ascertain the facts. Therefore, the factual predicate of the claim was not reasonably available to petitioner until May 1998, and that is when the statute of limitations was triggered.

In contrast, in Schlueter v. Varner, 384 F.3d 69 (3^rd Cir. 2004), the appeals court rejected an argument that the limitations period began to run only when recently retained post-conviction counsel discovered a potentially conflicting relationship between one of Schlueter’s trial attorneys and the prosecutor. The Third Circuit concluded that this relationship could have been easily discovered earlier through the exercise of due diligence, simply by interviewing Schlueter’s second trial attorney. Notably to the court, Schlueter had contemplated pursuing post-conviction remedies some six years before he retained an attorney for this purpose. In allowing this amount of time to pass, the court concluded that Schlueter was not diligent. The court did acknowledge that Schlueter was incarcerated during all this time. The record demonstrated, however, that he was receiving assistance from his parents, who were obviously well educated as demonstrated by their titles as "Doctor." Thus, Schlueter’s incarceration did not change the court’s view that he could have discovered the relationship between his trial attorney and the prosecutor through the exercise of due diligence.

In Johnson v. McBride, 381 F.3d 587 (7^th Cir. 2004), a capital case out of Indiana, the appeals court rejected an argument that the limitations period was governed by § 2244(d)(1)(D), and found the federal habeas petition untimely by one day. The claim presented in the federal petition involved an alleged Brady violation. According to petitioner, the prosecution suppressed evidence that another party, Paul Decker, participated in the capital offense. The petitioner based this allegation on the fact that the prosecution had sought a judicial order to obtain hair samples from Decker to compare to hairs found at the crime scene. This, according to petitioner, demonstrated that the prosecution must have suspected Decker and the fact that the State has continued to withhold its application for the order showed that it was still suppressing evidence. Thus, the time to file a federal petition had not, in petitioner’s view, even begun to run. Only after petitioner obtained the application, he contended, would the limitation period be triggered.

The appeals court was unimpressed with this argument noting, among other things, the claim had already been raised and rejected by the state court and so was not new. Additionally, hair from the crime scene had not matched Decker. Further, the court observed that if Decker had been involved in the crime petitioner would have had personal knowledge of this. Thus, his role in the crime could not have been concealed by the prosecution. The court concluded: "A desire to see more information in the hope that something will turn up differs from the ‘factual predicate of [a] claim or claims’ for purposes of § 2244(d)(1)(D)."

In Hasan v. Glaza, 254 F.3d 1150 (9^th Cir. 2001), the appeals court remanded the case to the lower court for further consideration of the timeliness of one of the claims in the federal habeas petition. The claim at issue alleged that trial counsel performed ineffectively in failing to pursue a jury tampering claim. In a motion for new trial, trial counsel had revealed that a prosecution witness from another case had been overheard speaking on a payphone outside the courtroom. During the conversation, petitioner’s name was mentioned. Shortly thereafter, the third party was seen to approach one of the jurors on petitioner’s case and hand him a piece of paper that said "be sure to call me." At the time the new trial motion was filed, trial counsel explained that he had yet to interview the juror in question or other jurors. When argument was heard on the motion, no further mention of the possible jury tampering was made. In the federal habeas petition, petitioner alleged that further investigation would have uncovered the fact that the third party at the time of trial was involved in a long-term relationship with one of the prosecution witnesses at petitioner’s trial.

The district court found that the factual basis for the ineffective assistance of counsel (IAC) claim was in existence at the time of the new trial motion, and so § 2244(d)(1)(A) applied, rendering the claim untimely. The appeals court disagreed. It noted that Strickland v. Washington, 466 U.S. 668 (1984), which governs IAC claims, has two prongs: (1) deficient performance; and (2) prejudice. Thus, to have the factual predicate for an IAC claim, a petitioner must have discovered, or should have been able to discover, facts suggesting both prongs of the test are satisfied. Here, while some facts related to prong one were known at the time of the new trial motion, the prosecutor was successfully able to defeat the new trial motion by pointing to the lack of evidence connecting the third party to petitioner’s trial, or evidence of jury misconduct. It was only when petitioner later learned about the romantic relationship between the third party and the prosecution witness that he had any basis for showing prejudice from counsel’s failure to investigate further. Because the record did not establish when, exercising due diligence, petitioner should have learned about the relationship, the case was remanded for further findings.

In a footnote, the Ninth Circuit expressed agreement with the Seventh Circuit’s finding that the due diligence clock starts to run when new facts are discovered, irrespective of whether the prisoner recognizes the legal significance of the facts at that time. Owens v. Boyd, 235 F.3d 356, 359 (7^th Cir. 2000).

New Retroactive Constitutional Rules

In Stillman v. LaMarque, 319 F.3d 1199 (9^th Cir. 2003), the Ninth Circuit held that the mailbox rule had no application in a case where the state prisoner had his state habeas petition sent by prison authorities to an attorney rather than to the clerk of the court. 

In Custody

The Third Circuit in Fielder v. Varner, 379 F.3d 113 (3^rd Cir. 2004), disagreed with the Eleventh Circuit’s ruling in the Walker case and held that "the statute of limitations set out in § 2244(d)(1) should be applied on a claim-by-claim basis." Id. at 118. The court gave two reasons for its interpretation of the statute. First, "this is the way that statutes of limitations are generally applied, and there is no reason to suppose that Congress intended to make a radical departure from this approach in § 2244(d)(1)." Id. While the Eleventh Circuit placed significance on the statute’s reference to the period within which "an application," rather than "a claim" must be filed, the Third Circuit noted that this is common in statutes of limitations. Second, the Third Circuit found that "a claim-by-claim approach is necessary in order to avoid results that we are confident Congress did not want to produce." Id. at 119-120.

Sometimes prisoners have sought to add a new claim to a timely filed § 2254 petition or § 2255 motion after the one-year limitation period under § 2244(d)(1)(A) or § 2255 subd. (1) has run. Where the claim isn’t newly discovered through the exercise of due diligence (§ 2244(d)(1)(D); § 2255, subd. (4)), or premised on a new rule of constitutional law made retroactively applicable to cases on collateral review (§ 2244(d)(1)(C); § 2255, subd. (3)), the petitioners have generally sought to invoke the relation-back rule found in Rule 15(c)(2) of the Federal Rules of Civil Procedure. That rule states, in part:

Many courts have denied relation back when a new claim rests on a theory or facts within a trial not raised in the original habeas petition. United States v. Hicks, 283 F.3d 380, 388 (D.C.Cir.2002); Davenport v. United States, 217 F.3d 1341, 1344-45 (11th Cir.2000); United States v. Pittman, 209 F.3d 314, 317-18(4th Cir.2000); United States v. Duffus, 174 F.3d 333, 337-38 (3rd Cir.1999); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999).

In Ellzey v. United States, 324 F.3d 521 (7th Cir. 2003), the appeals court examined the timeliness of petitioner’s amendments to his §2255 motion – including at least one that was added after the limitations period expired. The Seventh Circuit interpreted the "conduct, transaction, or occurrence" clause of Fed.R.Civ.P. 15(c) to refer to "the events under analysis, not the legal themes deployed in the analysis." Id. at 526. The court went on to explain:

Id. The court expressly acknowledged that this holding "leaves in its wake a conflict among the circuits" – several other circuits, including the D.C., Third and Fourth Circuits, have held otherwise – but reasoned that "this conflict was created by other circuits’ inattention to [the Seventh Circuit’s decision in] Johnson rather than by our decision today." Id. at 527. Finally, the court cautioned that "[o]ur understanding of Rule 15(c)(2) just permits and does not compel a district judge to accept the amended complaint; amendment still must be appropriate under the criteria of Rule 15(a), which permit the district judge to consider the goals of the AEDPA." Id.

In Felix v. Mayle, 379 F.3d 612, 615 (9th Cir. 2004), cert granted, the Ninth Circuit adopted a broad construction of Rule 15(c)(2), and held that "the proper ‘conduct, transaction, or occurrence’ in a habeas context is the trial and conviction under attack." The Supreme Court granted the Warden’s petition for writ of certiorari to address the question of:

In Artuz v. Bennett, the Supreme Court "express[ed] no view on the question whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed." Id. at 8 n. 2.

In Pace v. DiGuglielmo, 544 U.S. ___, 2005 WL 957194 (April 27, 2005), the Supreme Court addressed the question reserved in Artuz and ruled that a state post-conviction petition that is rejected by the state court as untimely is not "properly filed" under §2244(d)(2). In so ruling, the Court explained that "time limits, no matter their form, are 'filing conditions.'" Id., at *5. In response to Pace's argument that such an interpretation of §2244(d)(2) would be unfair to state prisoners who were uncertain whether their petitions would be found untimely by the state court, and who could lose their right to seek federal habeas relief if it turned out that the state petition had not tolled the federal limitation period, the Court suggested protective federal habeas filings under Rhines v. Weber, 125 S.Ct. 1528 (2005). Uncertainty about whether a state petition would be rejected as untimely would provide the necessary good cause for holding a federal habeas petition in abeyance while the petitioner sought relief in state court.

In order to determine whether an application was "properly filed," the Third Circuit has ruled that the federal court must look to state law. In Douglas v. Horn, 359 F.3d 257 (3^rd Cir. 2004), for example, the appeals court concluded that a nunc pro tunc petition filed by the petitioner in state court was not "properly filed" for purposes of tolling the AEDPA limitation period because Pennsylvania law did not recognize such petitions. Cf. Nara v. Frank, 264 F.3d 310 (3rd Cir. 2001) (a state-court motion to withdraw a guilty plea nunc pro tunc was "properly filed," where it was filed at what reasonably may have been considered the suggestion of the Superior Court and because that motion was denied for substantive reasons, rather than for failing to follow the state's filing rules.)

In Walker v. Smith, 360 F.3d 561 (6^th Cir. 2004), the appeals court concluded that the petitioner had in fact had a "properly filed" state post-conviction application pending between 1995 and 2003, even though the state docket failed to reflect the 1995 filing. In reaching this conclusion, the appeals court looked to petitioner’s exhibits, which showed the motion had been received by the state court in 1995. Further, although a 2003 order denying relief to petitioner referenced a pleading with a different title than appeared on the 1995 motion, close scrutiny of the filings and the docket indicated that the state court had simply changed the title of petitioner’s motion.

In Sibley v. Culliver, 377 F.3d 1196 (11^th Cir. 2004), the Eleventh Circuit held, among other things, that the "Notice" the petitioner sent to the Alabama Supreme Court alerting it to the fact that the petitioner was seeking relief from his convictions and death sentence from Congress, was not "filed" for purposes of tolling the AEDPA limitation period. The appeals court premised this ruling on the fact that the "Notice" was not sent to the appropriate court under state procedural rules.

The Ninth Circuit in Gaston v. Palmer, 387 F.3d 1004 (9^th Cir. 2004), ruled that a state habeas petition that had been dismissed for failing to plead facts with sufficient particularity was "properly filed" for purposes of tolling the AEDPA limitation period. Similarly, it found that another state petition that was dismissed for "lack of an adequate record" had been "properly filed," even though it was procedurally deficient.

On remand, the Ninth Circuit in Saffold v. Carey, 312 F.3d 1031 (9^th Cir. 2002), ruled that the petitioner’s state habeas proceedings had remained "pending" during the entire time he sought post-conviction relief in state court. Although his final filing had been denied for "lack of diligence," the Ninth Circuit concluded that the state supreme court was referring to the petitioner’s initial five-year delay in initiating habeas proceedings, not to the four and one-half month interval between denial by the intermediate appellate court and the filing of the new habeas petition in the state supreme court. Thus, the petitioner was eligible for statutory tolling during the gap between the state court denials of relief and his later filings.  

In Brown v. Poole, 337 F.3d 1155 (9th Cir. 2003), a case involving a claim that the government breached its plea agreement, the Ninth Circuit rejected the state's assertion that petitioner was not entitled to statutory tolling during the period in which her state habeas proceedings had been voluntarily taken "off calendar" while a parole request was pending. The majority stated:

Affirming the district court’s dismissal of petitioner’s § 2254 petition as untimely, the Ninth Circuit in Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003), held that petitioner did not have a state court application "pending," and therefore was not entitled to statutory tolling under § 2244(d)(2), during the time between the conclusion of his first full round of collateral review in California state courts, and the start of a second round of such review in the same courts.

In contast, in Delhomme v. Ramirez, 340 F.3d 817 (9th Cir. 2003) (per curiam), the Ninth Circuit found that petitioner's filing of multiple additional California state habeas petitions while his initial round of state habeas review was pending had no effect on his right to statutory tolling. The court explained:

In Jenkins v. Johnson, 330 F.3d 1146, 1155 (9^th Cir. 2003), the Ninth Circuit reiterated that whenever possible a federal court should defer to a state court’s own determination of whether a petition was "pending." But see Welch v. Carey, 350 F.3d 1079, 1080 (9^th Cir. 2003) (en banc) ("the circumstances under which a state petition will be deemed "pending" for purposes of 28 U.S.C. § 2244(d)(2) is a federal question.") Because it was unclear whether the petitioner’s request to file a late appeal had been rejected by the state court as untimely, the appeals court remanded to the district court to make that determination. If it was found untimely, then petitioner would not have had a post-conviction application "pending" after the denial by the lower court and prior to his filing of a motion to file a delayed appeal.

In the Welch case, the Ninth Circuit concluded that there was no application for post-conviction relief pending during the four and one-half year gap between the denial of habeas relief by the trial court and the filing of a new habeas petition in the state supreme court where the second state petition raised entirely different grounds than the petition filed in the trial court. In contrast, in Chavis v. LeMarque, 382 F.3d 921 (9^th Cir. 2004), the Ninth Circuit found that a habeas petition was "pending" during the three year gap between denial of relief by the intermediate appellate court and the filing of a new habeas petition in the state supreme court. Presumably, the petitions at issue raised the same claims. As in Saffold v. Carey, 312 F.3d 1031 (9^th Cir. 2002), the appeals court looked to whether the state supreme court denied the petition as untimely in determining whether anything was "pending" during the time when nothing was actually on file. Because Chavis’s habeas petition was denied on the merits by the state supreme court, the Ninth Circuit ruled that the initial petition was indeed "pending" during the three year gap.

In Gaston v. Palmer, 387 F.3d 1004 (9^th Cir. 2004), petition for rehearing pending, a California case involving six separate state habeas petitions filed at different levels (i.e, superior court, intermediate appellate court, state supreme court), over the course of several years, the Ninth Circuit concluded that a habeas proceeding was "pending" from the initial filing, which was dismissed without prejudice for a procedural deficiency, until the denial of the last petition. In reaching this conclusion, the court noted that none of the petitions had been found untimely by the state courts, the petitions contained related claims, and the intervals between the filings were not as long as in Welch.

In King v. Roe, 340 F.3d 821 (9^th Cir. 2003), the Ninth Circuit recognized that a petitioner may be entitled to statutory tolling during subsequent rounds of state habeas filings, but not for the time that elapses between rounds. In Chavis v. LeMarque, the Ninth Circuit rejected the Warden’s argument that the petitioner’s second round of habeas petitions were never "pending" at all because they were ultimately denied as successive and untimely. The Ninth Circuit explained that the holding in Carey v. Saffold, the case on which the Warden relied, was limited to the question of whether a habeas petition was pending between levels of review. That case had no relevance to the question of whether petitions were pending while the state courts were actually considering them. The court found it clear that a petition is "pending" while the state court considers it, whether or not the state court ultimately denies it on procedural grounds.

The Ninth Circuit in Isley v. Arizona Department of Corrections, 383 F.3d 1054 (9^th Cir. 2004), ruled that statutory tolling began when Isley filed his Notice of Post-Conviction Relief, which under state law is the means by which the state right to post-conviction counsel is enforced. Although the actual post-conviction application was not filed until 226 days after the Notice was filed, state law provides that state post-conviction proceedings are commenced by timely filing the Notice of Post-Conviction Relief, which must contain a request for relief from the judgment. This distinguished the case from Voravongsa v. Wall, 349 F.3d 1 (1^st Cir. 2003), where the circuit court ruled that a request for appointment of counsel in state court did not result in a "pending" application for post-conviction relief for purposes of tolling the AEDPA limitation period. This was because Rhode Island law, unlike Arizona law, required the filing of an actual application in order for post-conviction relief proceedings to be commenced. The Ninth Circuit found more analogous the Seventh Circuit’s decision in Ellzey v. United States, 324 F.3d 521 (7^th Cir. 2003). There, the court ruled that a post-conviction petition becomes "pending" when any document requesting relief from a sentence is filed. By asking for relief, Isley’s situation was also distinguishable from Woodford v. Garceau, 538 U.S. 202 (2003), where the Supreme Court ruled that Garceau’s request for counsel did not initiate federal habeas proceedings. Notably, in Garceau’s case, he simply asked for help in preparing a petition, and had not actually requested relief from the judgment.

The Fifth Circuit in Grillette v. Warden, 372 F.3d 765 (5^th Cir. 2004), found that the petitioner’s post-conviction application remained "pending" after the ruling by the trial court despite the fact that petitioner did not seek a supervisory writ from the appellate court for more than one year after the ruling. This was because the petitioner had given timely oral notice of his intent to take the writ, the trial court had orally extended the deadline due to problems in assembling the trial record, and the state appellate court ultimately disposed of the writ application on the merits with no notation that it was time-barred.

In Moore v. Crosby, 321 F.2d 1377 (11^th Cir. 2003), the Eleventh Circuit addressed whether a state court’s granting of a belated appeal meant that the original post-conviction motion should be considered "pending" even after the period for normal appeal had expired. The appeals court concluded it did not. While the granting of a belated appeal could initiate further statutory tolling, it did not result in tolling for the time period after the normal time for seeking appeal expired. See also Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir.2001) (after the appeal period has lapsed, an application for further appellate review ceases to be "pending" for purposes of calculating federal habeas corpus tolling provision even if state appellate court ultimately reviews late appeal on the merits); Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir.2000) (a "state court's grant of leave to appeal out of time cannot erase the time period during which nothing was pending before a state court"); Fernandez v. Sternes, 227 F.3d 977, 981 (7th Cir.2000) (while a state can decide to permit review even after the time to seek further review has expired, "the prospect of revival does not make a case 'pending' in the interim").

In Lookingbill v. Cockrell, 293 F.3d 296 (5^th Cir. 2002), the appeals court rejected an argument that a state habeas petition remained pending until the lower court filed the letter it received from the state appellate court indicating that the petitioner’s reconsideration request had been denied. The Fifth Circuit concluded that nothing was "pending" after the letter itself was sent to the lower court resolving the reconsideration motion.

In Rouse v. Lee, 339 F.3d 238 (4^th Cir. 2003) (en banc), the appeals court rejected an argument that the petitioner’s state court Motion for Appropriate Relief (MAR) remained pending for an additional twenty days after the state supreme court denied certiorari. The petitioner had relied upon a state rule of appellate procedure that requires the court clerk to enter judgment and issue the mandate of the court 20 days after the written opinion of the court is filed with the clerk. The Fourth Circuit noted, however, that it would not normally be expected that a mandate would issue from the denial of certiorari. Nor would one expect a judgment to be entered in such a circumstance. In fact, the clerk of the Supreme Court of North Carolina provided an affidavit explaining that the general practice of that court is not to issue mandates following summary denials of certiorari. Most importantly, Rouse submitted no evidence that any mandate ever issued in his case.

The Fourth Circuit also rejected an argument that the MAR remained pending during the period in which Rouse could have sought rehearing in the North Carolina Supreme Court. Looking to state law, the federal appeals court concluded that rehearing was not an option because a MAR is a criminal proceeding. That the state court has sometimes exercised its discretion to reconsider denials of MARs did not assist Rouse because: (1) he did not request reconsideration; and (2) "the fact that North Carolina sometimes suspends or creates exceptions to its procedural rules does not mean that the state proceeding was ‘pending.’"

In Serrano v. Williams, 383 F.3d 1181 (10^th Cir. 2004), the Tenth Circuit ruled that the AEDPA limitation period was statutorily tolled during the 15 days that the petitioner could have filed for rehearing of the denial of his petition for writ of certiorari by the New Mexico Supreme Court. In reaching this conclusion, the appeals court followed other circuits that have found that time allowed for appeals tolls the AEDPA limitations period, including the time for filing a motion for rehearing, even if no such filing is made. See, e.g., Jones v. Nagle, 349 F.3d 1305, 1308 (11th Cir. 2003); Williams v. Bruton, 299 F.3d 981, 983-84 (8th Cir. 2002); Swartz v. Meyers, 204 F.3d 417, 421 (3rd Cir. 2000); see also Williams v. Gibson, 237 F.3d 267 (10^th Cir. 2001) (limitation period was tolled for 30 days during which appeal could have been taken where petitioner filed a timely notice of appeal but then failed to perfect his appeal within the 30 day deadline); but see Wilson v. Battles, 302 F.3d 745 (7^th Cir. 2002) (where state law provided that judgment was final upon denial of review by state supreme court, fact that date of finality could be altered if the state supreme court granted rehearing did not mean that petitioner’s post-conviction relief petition remained "pending" during 21 day period in which rehearing petition could be filed.) Although the question of whether a state application was "pending" is a matter of federal law, the Tenth Circuit acknowledged that some inquiry into relevant state procedural rules is required. Cf. Wilson v. Battles, 302 F.3d 745, 747 (7^th Cir. 2002) ("The issue of whether a post-conviction petition is pending for habeas purposes is governed by state law.") Further, in reaching its conclusion about tolling, the court in Serrano chose to interpret the relevant state statutes in a manner that best effectuated exhaustion of state remedies prior to resort to federal court. Citing to Rouse v. Lee, the Tenth Circuit rejected Serrano’s argument that the state supreme court’s denial of review did not become final until a mandate issued, which by state law was to occur 15 days after entry of the disposition. The appeals court noted that one would not expect a mandate to issue from a denial of certiorari review and in fact the Clerk of the New Mexico Supreme Court confirmed that no mandate usually issues in such a situation. In contrast, in Nyland v. Moore, 216 F.3d 1264 (11^th Cir. 2000), the Eleventh Circuit found that the petitioner’s post-conviction relief motions were pending until the mandates were issued by the state appellate court. The appeals court’s conclusion was premised on its understanding of Florida law. Similarly, the Ninth Circuit relied on its understanding of California law in finding that a habeas petition remained "pending" for thirty days after its denial because that was when the judgment became final. See, e.g., Smith v. Duncan, 297 F.3d 809, 814 (9^th Cir. 2002). California subsequently clarified its rules to state that an order by the California Supreme Court summarily denying a habeas petition is final immediately upon issuance. Cal. Rules of Court, Rule 29.4(b)(2)(C).

The Eighth and Tenth Circuits have rejected arguments that the one-year limitation period is tolled during the time an application could properly be filed under state law. In Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851 (8^th Cir. 2003), for example, the petitioner filed an application for post-conviction relief that complied with Iowa law which permits such applications to be filed up to three years following final judgment on direct review. The application was outside of the one-year AEDPA limitation period, however, and so the later federal habeas petition was dismissed as untimely. Acknowledging the Supreme Court’s comity concerns in Saffold, which would be effectuated by tolling the federal limitation period during the time an Iowa inmate could properly exhaust state remedies, the Eighth Circuit nevertheless felt itself bound by prior precedent which rejected tolling other than for the time the state application is actually pending before a court. See also Burger v. Scott, 317 F.3d 1133, 1138 (10^th Cir. 2003)("We recognize that, as a federal statute that interacts with state procedural rules, § 2244(d) will sometimes force a state prisoner to act expeditiously to preserve his federal claims despite the procedural lenience of state law, which may forgive substantial delay.")

In Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003), the Sixth Circuit refused to extend the Houston v. Lack prison mailbox rule to Ohio state court filings. Had the court done so, petitioner's state court application would have been timely by four days (instead of untimely by one), which would have made his federal petition timely as well.

In a Michigan manslaughter case, Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc), cert. denied, 124 S.Ct. 2388 (2004 ), the en banc Sixth Circuit addressed the availability of statutory tolling under § 2244(d)(2) for the time during which a petition for writ of certiorari in the United States Supreme Court seeking review of the denial of state post-conviction relief was pending or could have been filed. By a vote of 6 to 5, the court held that tolling is available in both circumstances.

The weight of court of appeals authority is to the contrary, either as to both circumstances, or at least as to where no certiorari petition was actually filed. (See, e.g., Rhine v. Boone, 182 F.3d 1153 (10^th Cir. 1999); Ott v. Johnson, 192 F.3d 510 (5^th Cir, 1999); Coates v. Byrd, 211 F.3d 1225 (11^th Cir, 2000); Guttierez v. Schomig, 233 F.3d 490 (7^th Cir. 2000); Snow v. Ault, 238 F.3d 1033 (8^th Cir. 2001); Stokes v. District Attorney of the County of Philadelphia, 247 F.3d 539 (3^rd Cir. 2001); Crawley v. Catoe, 257 F.3d 395 (4^th Cir. 2001); Smaldone v. Senkowski, 273 F.3d 133 (2^nd Cir. 2001). Nevertheless, the majority followed the reasoning of Judge Berzon's dissenting opinion in White v. Klitzkie, 281 F.3d 920 (9th Cir. 2002), and, relying on Clay v. United States, 537 U.S. 522 (2003), Carey v. Saffold, 536 U.S. 214 (2002), and Duncan v. Walker, 533 U.S. 167 (2001), explained as follows with respect to cases in which a certiorari petition is actually filed in the Supreme Court:

Although the question was not presented in this case, the majority also addressed whether tolling is similarly available "where no [certiorari] petition is actually filed [in the Supreme Court]." Relying on Clay's holding that a federal conviction does not become "final" until the expiration of time for filing a certiorari petition even if no such petition is filed, and Carey's determination that a case remains "pending" between the time of one court's ruling and the subsequent filing in the next court, the majority reasoned and concluded as follows:

Finally, the majority summed up its holding as follows: "[W]e hold that under section 2244(d)(2), the statute of limitations is tolled from the filing of an application for state post-conviction or other collateral relief until the conclusion of the time for seeking Supreme Court review of the state's final judgment on that application independent of whether the petitioner actually petitions the Supreme Court to review the case."

The dissent acknowledged that "[t]he position espoused by the majority sounds good," but characterized it as "a stretch of the law." The dissent went on to emphasize that "there is no Circuit authority in Abela's favor," and briefly touched upon the distinctions between the issues in this case and in Duncan and Clay.

In 1999 the Sixth Circuit had ruled in Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999), that the AEDPA limitations period is tolled only if a prisoner includes in his state post-conviction petition a federal or constitutional law issue which also is raised in his federal habeas petition. Sitting en banc, the Sixth Circuit reversed Austin in Cowherd v. Million, 380 F.3d 909 (6^th Cir. 2004) (en banc), and adopted the majority position which does not require the presence of federal claims for statutory tolling.

The Eleventh Circuit in Sibley v. Culliver, 377 F.3d 1196 (11^th Cir. 2004), rejected the petitioner’s argument that he was entitled to statutory tolling during the pendency of his "Notice" to the Alabama Supreme Court, which was never acted upon. This "Notice" informed the state court that the petitioner was challenging his conviction and death sentence in Congress and expressly stated that the document was not to be construed as a motion or pleading. (The petitioner, along with his co-defendant wife, had mailed certain members of Congress a "petition for orders commanding release from unlawful restraint of liberty." In this "petition," the Sibleys contended that the entire judicial system is illegal.)

The Eleventh Circuit held that the "Notice" did not constitute "an application for State post-conviction or other collateral relief" for three reasons. First, the "Notice" did not actually request any relief from the court. See, e.g., Voravongsa v. Wall, 349 F.3d 1, 6 (1^st Cir. 2003) (noting that a filing must seek review of the judgment to constitute an "application" for purposes of statutory tolling). Second, even if the "Notice" were construed to request some form of review, it failed to even attempt a good faith effort to offer a plausible basis for granting relief. In the view of the appeals court, there is no statutory tolling where the document filed in state court is devoid of "something vaguely approaching legitimate, relevant, coherent legal analysis." Finally, the various disclaimers in the "Notice" established that it was not an application for post-conviction or other collateral review.

In Pace v. DiGuglielmo, 03-9627, now pending before the Supreme Court, one of the questions presented concerns equitable tolling:

In Neverson v. Farquharson, 366 F.3d 32 (1^st Cir. 2004), the First Circuit agreed with the other circuits and ruled that the AEDPA limitation period is subject to equitable tolling. See also, Smith v. McGinnis, 208 F.3d 13 (2nd Cir. 2000); Miller v. N.J. State Department of Corrections, 145 F.3d 616 (3rd Cir. 1998); Harris v. Hutchinson, 209 F.3d 325 (4^th Cir. 2000); Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998); McClendon v. Sherman, 329 F.3d 490 (6th Cir. 2003); Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999); Kreutzer v. Bowersox, 231 F.3d 460 (8th Cir. 2000); Calderon v. United States District Court, 128 F.3d 1283 (9^th Cir. 1997); Miller v. Marr, 141 F.3d 976 (10th Cir. 1998); Helton v. Department of Corrections, 259 F.3d 1310 (11th Cir. 2001).

The court of appeals in Neverson found, however, that the petitioner was not entitled to such tolling. The case involved a federal habeas petition that was dismissed pursuant to Rose v. Lundy before the Supreme Court ruled in Duncan v. Walker, 533 U.S. 167 (2001), that there is no statutory tolling for the time a "mixed" habeas petition is pending in federal court prior to dismissal without prejudice. The district court had equitably tolled the limitation period for the 118 days that petitioner’s original federal petition had been pending, thereby rendering his post-exhaustion federal petition timely. The appeals court ruled this was an abuse of discretion because neither the district court's decision to dismiss rather than stay the "mixed" petition, nor its failure to advise petitioner of his options under Rose v. Lundy actually prevented petitioner from filing a timely habeas petition. The court pointed out that petitioner’s final direct appeal had been rejected in October 1993 and yet it wasn’t until August of 1996 that he initiated a further challenge to his conviction by filing a habeas petition in federal court. Petitioner offered no justification for this three year delay. Had he acted with diligence, he could easily have exhausted state remedies and filed a perfected federal petition long before the one-year limitation period ran. And even if there was some fair excuse for the delay just discussed, petitioner still waited an inexplicable seven months after his initial federal habeas petition was dismissed before taking action in state court. Had petitioner acted promptly following the dismissal, his post-exhaustion amended federal petition would have been timely. See also Guillory v. Roe, 329 F.3d 1015 (9^th Cir. 2003) (petitioner was not entitled to equitable tolling for the three years his initial timely federal petition was pending in district court, even though the court erred in denying petitioner's motion to strike the unexhausted portions of his petition as an alternative to suffering dismissal of the initial petition, where the initial petition was filed three days before expiration of the habeas limitations period, and where petitioner allowed over eight months to pass after the initial petition was dismissed before filing his first subsequent petition in state court, waited even longer to attempt to exhaust the claims deemed unexhausted in the initial petition, and waited seven months after the final state court determination before filing the subsequent federal habeas petition).

The Eleventh Circuit also found equitable tolling undeserved in Diaz v. Secretary for the Department of Corrections, 362 F.3d 698 (11^th Cir. 2004). The petitioner in Diaz had requested that his timely filed federal habeas petition be dismissed without prejudice so that he could exhaust newly discovered facts and claims. At the time his request was granted, the Supreme Court had not yet ruled that the time the federal petition had been pending would not have tolled the limitation period. As a result of the dismissal, the petitioner’s post-exhaustion federal habeas petition was untimely. In concluding that the petitioner was not entitled to equitable tolling, the Eleventh Circuit observed that the petitioner had waited 258 days before filing his initial federal petition, and then an additional 274 days after exhausting state remedies before filing the second federal petition. Thus, even without considering the time the initial federal petition had been pending, the second petition was untimely. No excuse was offered for this delay, which established a lack of diligence on the petitioner’s part which disentitled him to equitable tolling. As for the petitioner’s assertion that his actual innocence provided a basis for tolling the statute, the appeals court found that the argument was beyond the scope of the certificate of appealability and so refused to address it. Further, the court noted that the alleged innocence could not provide a basis for equitable tolling since the supporting evidence was in the petitioner’s possession at least at the time his filed his initial federal habeas petition.

In Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), the Ninth Circuit vacated the district court's dismissal of petitioner's §2254 petition as untimely and remanded for a determination of his entitlement to equitable tolling on the ground that his retained attorney failed to discharge his obligations. After noting that it had not previously granted equitable tolling on these grounds, the court found that "the misconduct of Spitsyn's attorney was sufficiently egregious to justify equitable tolling," summarized the situation as follows:

The court went on to reject the state's contentions that petitioner should have filed a timely petition pro se, reasoning that "it seems unrealistic to expect Spitsyn to prepare and file a meaningful petition on his own within the limitations period." The court likewise rejected the assertion that petitioner should have retained a different attorney, observing that "it does not appear unreasonable to us that Spitsyn did not do so, on the facts available from the current record." Despite these findings, however, the court concluded by remanding the case to the district court for a determination of whether petitioner acted with "reasonable diligence in ultimately filing his petition" approximately five months after retained counsel returned his files.

In Baldayaque v. United States, 338 F.3d 145 (2nd Cir. 2003), the Second Circuit vacated the district court's order dismissing petitioner's §2255 motion as untimely, which had been entered as a result of the district court's reluctant and mistaken belief that Smaldone v. Senkowski, 273 F.3d 133 (2nd Cir. 2001), "always precludes . . . equitable tolling . . . where a habeas petition is untimely because of the extraordinary actions of the petitioner's attorney." The Second Circuit began by recounting the facts as presented at an evidentiary hearing before the district court: at the time of his arrest and guilty plea to a federal drug offense, petitioner was an illegal alien; his conviction was affirmed on direct appeal by the Second Circuit on February 14, 1997, and he did not file a petition for writ of certiorari; in March, 1997, petitioner, through his non-English-speaking wife and an interpreter, had retained a local attorney and specifically instructed him to file "a 2255"; on March 25, 1997 - nearly two months before petitioner's conviction became final - his retained counsel informed petitioner's wife that "it was too late to file a 2255," but went on to say that he had "good news," namely that petitioner had a chance to be deported relatively quickly; in November, 1995, the attorney filed a motion seeking petitioner's immediate deportation, but citing no authority; on June 9, 1998, the district court denied that motion as untimely; one week later, retained counsel sent a letter to petitioner informing him of the denial, and stating that he saw "no basis for an appeal"; the letter was returned to counsel as undeliverable, but counsel made no additional effort to apprise petitioner of the status of his case.

Against this factual background, the Second Circuit that its earlier decision in Smaldone "does not dictate that the actions of a petitioner's attorney could never constitute 'extraordinary circumstances.'" The court explained that "[i]t is not inconsistent to say that attorney error normally will not constitute the extraordinary circumstances required to toll the AEDPA limitations period while acknowledging that at some point, an attorney's behavior may be so outrageous or so incompetent as to render it extraordinary." In this case, the court determined that counsel's "actions were far enough outside the range of behavior that reasonably could be expected by a client that they may be considered 'extraordinary.'" After observing that, "while the normal errors made by attorneys may not justify equitable tolling, extreme situations such as the one presented here require a different result, the court held that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of 'extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA."

The court went on to remand the case to the district court for consideration of whether petitioner had acted with diligence, and whether his attorney's actions prevented him from filing a timely §2255 motion.

Judge Jacobs concurred, but wrote separately to explain that the issues in this and similar cases would be better addressed using agency law, rather than difficult distinctions between "ordinary" and "extreme" attorney errors.

In Schlueter v. Varner, 384 F.3d 69 (3^rd Cir. 2004), the Third Circuit rejected an argument that retained counsel’s failure to file a timely post-conviction relief application, as he had promised to do, was grounds for equitable tolling. In so ruling, the appeals court noted that the attorney had assured Schlueter and his parents that he would file the application by years end. Had Schlueter checked on the status of the application at the time the attorney had said it would be filed, he would have discovered that no application was pending and would still have had time to prepare a timely application. Instead, he waited until the state statute of limitations had run before inquiring about the application. Further, the court placed weight on the eleven years that had elapsed following Schlueter’s conviction and his initiation of post-conviction remedies in determining that equitable tolling was not warranted in this case. The petitioner’s lack of diligence distinguished his case from Spitsyn v. Moore, 345 F.3d 796 (9^th Cir. 2003) and Baldayaque v. United States, 338 F.3d 145 (2^nd Cir. 2003), where the courts recognized that egregious attorney malfeasance could constitute an extraordinary circumstance warranting equitable tolling, but only where the petitioner further established due diligence.

In general, errors by attorneys have not been found to justify equitable tolling of the AEDPA limitation period. See, e.g., Wilson v. Battles, 302 F.3d 745 (7^th Cir. 2002) (attorney’s confusion about statutory tolling did not justify equitable tolling); see also Modrowski v. Mote, 322 F.3d 965 (7^th Cir. 2003) (in non-capital case, attorney’s physical and mental impairments did not justify equitable tolling); Jurado v. Burt, 337 F.3d 638, 644-45 (6th Cir. 2003) (a petitioner’s reliance on the unreasonable and incorrect advice of his or her attorney is not a ground for equitable tolling.); Steed v. Head, 219 F.3d 1298 (11^th Cir. 2000) (attorney’s miscalculation of the limitation period or mistake could not be the basis for equitable tolling); Brown v. Shannon, 322 F.3d 768 (3^rd Cir. 2003) (where attorney advised petitioner to forgo state appeal and agreed to prepare and file federal habeas petition instead, but then withdrew from representation shortly before one-year limitation period expired due in part to his inability to obtain the trial transcripts, petitioner was not entitled to equitable tolling).

In Rouse v. Lee, 339 F.3d 238 (4^th Cir. 2003) (en banc), a case where an error by federal habeas counsel resulted in a federal petition filed one day too late, a split Fourth Circuit ruled that the petitioner was not entitled to equitable tolling. This was true despite the fact that the petitioner is on death row in North Carolina.

Similarly, in Johnson v. McBride, 381 F.3d 587 (7^th Cir. 2004), the Seventh Circuit refused to grant equitable tolling to an Indiana death row inmate whose attorney missed the AEDPA deadline by one day. The court identified two key mistakes by the attorney: (1) she relied on first-class mail rather than utilize a guaranteed delivery service; and (2) she apparently believed that use of the mail would add three days to the time available even though Fed. Rule Civ. Pro. 6(e) applies only to documents "served" on opposing counsel rather than complaints filed in a court. These errors were attributable to the petitioner because his attorney was his agent. In so ruling, the appeals court expressed agreement with Rouse, and skepticism towards the Third Circuit’s suggestion that errors by attorneys in death penalty cases related to the statute of limitations should be treated differently than in non-capital cases.

In Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851 (8^th Cir. 2003), the Eighth Circuit rejected an argument that the Iowa Supreme Court’s failure to act on a pro se legal malpractice suit filed by the petitioner somehow lulled him into inactivity, justifying his delay in filing for post-conviction relief. The appeals court noted, among other things, that the petitioner had not been diligent in checking on the status of his law suit

The Ninth Circuit in Laws v. LaMarque, 351 F.3d 919, 923 (9^th Cir. 2003), remanded for factual findings after reiterating the following principle: "Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an ‘extraordinary circumstance beyond [his] control,’ and the deadline should be equitably tolled." In Gaston v. Palmer, 387 F.3d 1004 (9^th Cir. 2004), the appeals court found no clear error in the district court’s conclusion that the petitioner’s physical and mental condition had not prevented him from timely filing a federal habeas petition. Notably, the petitioner in that case had filed state petitions around the time the federal limitation period purportedly expired, thereby evidencing the petitioner’s ability to file in federal court.

In Hollins v. Knowles, 2003 WL 21640479 (N.D.Cal. July 9, 2003), the district court dismissed the petition as untimely. Hollins had filed an earlier, timely motion that contained only exhausted claims. He made a voluntary request for and received a dismissal without prejudice in order to exhaust new claims in state court that he wanted to add to his petition. In granting the dismissal, the district court did not warn Hollins that a subsequent federal petition could be untimely. In dismissing the second petition as untimely, the court found that the grounds for equitable tolling present in the Ninth Circuit's recent decision in Brambles v. Duncan, 330 F.3d 1197 (9th Cir. 2003), were not applicable here. In Brambles, the Ninth Circuit held that equitable tolling was warranted because the district court dismissed without prejudice a mixed habeas petition without any warning concerning the timeliness of a future petitions and the AEDPA limitations period had already expired during the pendency of the petition. In contrast, the district court found that here, forty days were remaining on the limitations period, which gave Hollins ample time to exhaust his claims in state court and return to federal court. The court also found that, unlike in Brambles, the dismissal here did not violate Ford v. Hubbard (holding that it was error to dismiss a mixed petition when the statute of limitations had already run without informing the petitioner that he could request a stay of the petition while exhausting his unexhausted claims). Finally, the court also noted that the untimeliness of the second petition was within Hollins' control. The court stated that "the six months petitioner took to exhaust his unexhausted claims in state court and to return to federal court, excluding the time the state petition was pending in the state court, is sufficiently excessive to demonstrate a lack of diligence."

In Benn v. Greiner, 275 F.Supp.2d 371 (E.D.N.Y. 2003), the district court determined that Benn’s psychiatric problems made it impossible for Benn to file a timely petition and that equitable tolling was warranted. During the time that was equitably tolled, Benn required treatment that included antipsychotic medication for a condition involving hallucinations, paranoia, depression, and anxiety. He was also hospitalized and remained in the prison mental health ward for much of his sentence.

Equitable tolling was found appropriate in King v. Bell, 378 F.3d 550 (6^th Cir. 2004), a capital case, where the district court had extended the filing deadline due to the government’s delay in producing certain transcripts. Equitable tolling was also found to be appropriate in Stillman v. LaMarque, 319 F.3d 1199 (9^th Cir. 2003), a non-capital case, where the prison litigation coordinator had promised the petitioner’s lawyer that he would obtain the petitioner’s signature by a certain time, but then broke the promise, causing the state habeas petition to be filed too late to statutorily toll the AEDPA limitation period. Equitable tolling was granted in Knight v. Schofield, 292 F.3d 709 (11^th Cir. 2002), where a court clerk failed to notify the petitioner when the Georgia Supreme Court denied his CPC application. In finding that the petitioner had exercised appropriate diligence to justify tolling, it was noted that the petitioner had contacted the clerk’s office to inquire about his application and had been assured he would be notified as soon as a decision was issued. Also receiving equitable tolling was the petitioner in Burger v. Scott, 317 F.3d 1133 (10^th Cir. 2003). The appeals court concluded that equitable tolling was justified for the four-month period between the date the petitioner delivered his state habeas petition to prison officials and the date it was stamped "filed" in state court, given the absence of evidence indicating that the petitioner did not diligently pursue his claim or that the four month delay was otherwise due to circumstances within his control.

In Jones v. Nagle, 349 F.3d 1305 (11th Cir. 2003), the appeals court ruled that the state had waived its opportunity to contest a grant of equitable tolling by failing to dispute the petitioner’s equitable tolling argument in the district court.