Lead Opinion
Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINS and Judges WIDENER, WILKINSON, NIEMEYER, TRAXLER, and SHEDD concurred. Judge DIANA GRIBBON MOTZ wrote a separate dissenting opinion in which Judges MICHAEL, KING, and GREGORY joined.
OPINION
A North Carolina jury convicted Kenneth Rouse of first-degree murder, robbery with a dangerous weapon, and attempted first-degree rape. Following a capital sentencing proceeding, the jury recommended the death penalty. Rouse was then sentenced to death for first-degree murder, forty years’ imprisonment for armed robbery, and twenty years’ imprisonment for attempted first-degree rape. More than one year after exhausting all state remedies, Rouse filed a peti
Rouse appeals the district court’s determination that neither statutory tolling nor equitable tolling of the AEDPA limitations period operated to render his federal habe-as petition timely filed. Sitting en banc, we hold that Rouse’s federal habeas petition was filed after the expiration of the 1-year AEDPA limitations period, including statutory tolling, and that because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the statute of limitations, he is not entitled to equitable tolling. Accordingly, we affirm the district court’s dismissal of Rouse’s petition as untimely.
I.
A.
In March 1992, Rouse was convicted of first-degree murder, armed robbery, and attempted first-degree rape. The relevant facts underlying petitioner’s conviction are succinctly set forth in the Supreme Court of North Carolina’s opinion affirming Rouse’s conviction and sentence on direct appeal.
[Responding to a call,] [s]everal officers soon arrived at The Pantry [in Ashe-boro, North Carolina.] [Officer Hin-shaw] heard a muffled sound coming from a storage room. He and Sergeant York, who had arrived at the scene, entered the room where they found defendant [Rouse] against a wall. Hin-shaw aimed his gun at defendant, and defendant said, “I ain’t got nothing, man.”
Defendant had blood on him, especially on the front of his shirt, his pants, his hands, his waist, his legs and his underwear. There were abrasions on his knees. His pants were unzipped but fastened at the top. His belt was hanging off. Hinshaw ordered defendant to freeze and pinned him behind the door. Defendant was then handcuffed and taken out of the room. Lieutenant Charles Bulla searched defendant in the store and found in defendant’s pocket three rolls of pennies in a plastic container. Defendant was then taken away. Defendant did not resist the officers at this or any time. No odor of alcohol was found on defendant’s breath.
On the floor of the storage room was Hazel Colleen Broadway, lying in a pool of blood. She tried to tell Hinshaw something but soon died. Broadway was covered in blood. There were hand-prints on her body. She was wearing a blouse, and her pants had been pulled down to her feet.... [She had] a knife in [her] neck. The blade part of the knife was bent in a ninety-degree angle just below the handle.
More officers soon arrived at the scene who surveyed the store and collected evidence. The store was in disarray. A cigarette stand was overturned, and cigarettes were strewn about the floor. The cash register was turned sideways. Two empty rolls for pennies were on the floor. There was some other debris on the floor beside a trash can and some other penny rolls which seemed to have been knocked out of the*242 safe. The bar stool behind the cash register had some blood on it. There were also spots of blood near the cash register....
... [B]lood on defendant’s hands, shirt and underwear was consistent with samples of blood taken from the victim ....
[The medical examiner] concluded that the victim died as a result of blood loss caused by a stab wound to the left neck, severing the carotid artery and jugular vein. A person could live ten to fifteen minutes after being stabbed in that location. In addition to the lethal knife wound, there were numerous other wounds to the victim including bruises, stab wounds and abrasions to her neck, chest, stomach, arms, shoulders, thighs, knee, palm, thumb, back, and elbow. Many of these were consistent with a sharp cutting instrument. Other injuries were consistent with a blunt instrument.
State v. Rouse,
B.
On October 2, 1995, the United States Supreme Court denied Rouse’s petition for a writ of certiorari. On April 19, 1996, Rouse filed a motion for appropriate relief (MAR) and over 100 pages of exhibits, including affidavits and interview transcripts, excerpts from the trial transcript, and letters, in the North Carolina Superior Court for Randolph County (the state MAR court). The state MAR court denied relief on the merits. State v. Rouse, Nos. 91-CRS-3316-17, 92-CRS-2 (N.C.Super.Ct. Aug. 2, 1996) (unpublished).
On February 8, 2000, Rouse filed a petition for a writ of habeas corpus in the district court. The State filed a motion to dismiss the petition as untimely. Pursuant to 28 U.S.C.A. § 636 (West 1993 & Supp. 2003), the petition was referred to a United States magistrate judge, who recommended that the district court dismiss the petition as untimely. Rouse filed detailed objections to the magistrate judge’s recommendation, attaching several affidavits and a neuropsychological evaluation report. The district court “reviewed [Rouse’s] objections ... de novo 'and [found] they do not change the substance of the United States Magistrate Judge’s rulings.” (J.A. at 388.) Accordingly, the district court affirmed and adopted the magistrate judge’s rulings and dismissed Rouse’s petition as untimely. Rouse filed a motion to alter or amend the judgment, which the district court denied. Rouse filed a timely notice of appeal to this court.
A panel of this court reversed the district court’s dismissal. Rouse v. Lee,
II.
The timeliness of Rouse’s petition is governed by the AEDPA. The AEDPA was signed into law on April 24, 1996, and became effective immediately. In pertinent part, it provides that:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review....
28 U.S.C.A. § 2244(d)(1). For prisoners, like Rouse, whose convictions became final before the AEDPA was enacted, the one-year limitations period began to run on the AEDPA’s effective date, and thus, they had until April 24, 1997, absent tolling, to file their federal habeas petitions. Hernandez v. Caldwell,
A. STATUTORY TOLLING
The AEDPA explicitly provides that its one-year limitations period is tolled for “[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.” 28 U.S.C.A. § 2244(d)(2). “[U]nder § 2244(d)(2) the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review), is tolled from the limitations period for federal habeas corpus petitioners.... ”
The district court held that Rouse’s state post-conviction review was no longer pending once the Supreme Court of North Carolina denied certiorari on February 5, 1999. Accordingly, the one-year statute of limitations period ended on February 5, 2000, which being a Saturday, meant that Rouse had until February 7, 2000, to file his federal habeas petition. See Fed.R.Civ.P. 6(a). Because Rouse did not file his federal habeas petition until February 8, 2000, the district court concluded that the petition was untimely. Rouse argues that his MAR remained pending after February 5, 1999, and thus, that he is entitled to additional statutory tolling. We review the district court’s legal conclusions de novo. Monroe v. Angelone,
1. North Carolina Rule of Appellate Procedure 32(b)
Rouse argues that his MAR remained pending for twenty days after the state court denied certiorari, until February 25, 1999, because North Carolina Rule of Appellate Procedure 32(b) requires that unless “a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the clerk.” N.C. R.App. P. 32(b). One would not expect a mandate to issue from a denial of certiorari, however, as there is no action for the lower court to take once the petition for writ of certiorari is denied. See Black’s Law Dictionary 962 (6th ed.1990) (providing relevant definition of “mandate” as “[a] precept or order issued upon the decision of an appeal or writ of error, directing action to be taken, or disposition to be made of case, by inferior court. Official mode of communicating judgment of appellate court to lower court, directing action to be taken or disposition to be made of cause by trial court.”). Nor would one expect a judgment to be entered, as a denial of certiorari is a refusal to determine the rights and obligations of the parties. See id. at 841-42 (providing relevant definition of “judgment” as “[t]he final decision of the court resolving the dispute and determining the rights and obligations of the parties”); see also Felton v. Barnett,
2. North Carolina Rule of Appellate Procedure 31(g)
Rouse argues that his petition remained pending during the period in which he could have sought rehearing from the Supreme Court of North Carolina. While it is correct that an application for state collateral review remains pending during the time to seek further review in the state courts, “until the application has achieved final resolution through the State’s post-conviction procedures,” Carey v. Saffold,
Under North Carolina law, a MAR is part of the original action, and thus, criminal in nature. N.C. GemStat. § 15A-1411(b). Petitions for rehearing were not (and are not) available in criminal proceedings. N.C.R.App. P. 31(g). Because no rehearing was available, there was no period following the denial of certiorari during which Rouse could have sought rehearing. Rouse contends that, notwithstanding Rule 31(g), rehearing was available because the Supreme Court of North Carolina has “used its discretionary authority to reconsider denials” of such petitions. (Reply Br. at 10.) Rouse, however, did not seek such review. Moreover, the fact that North Carolina sometimes suspends or creates exceptions to its procedural rules does not mean that the state proceeding was “pending.” Cf. Carey,
3. Federal Rule of Civil Procedure 6(e)
Though not an argument for statutory tolling per se, Rouse argues that the “mailbox rule,” Federal Rule of Civil Procedure 6(e), explicitly extends the 1-year AEDPA limitations period by three days. Rouse’s argument has two fatal flaws.
First, Rule 6(e) applies only to parties.
Second, Rule 6(e) provides a party three additional days only when that party “has the right or is required to [take some action] within a prescribed period after the service of a notice or other paper upon the party.” The limitations period of the AEDPA, however, runs from “the date on which the judgment became final,” 28. U.S.C.A. § 2244(d)(1)(A), not from the date on which Rouse was served with (or, in this case, merely received) notification of the final judgment. See Geraci v. Senkowski,
Accordingly, Rouse’s MAR was no longer pending as of February 5, 1999, and he is not entitled to statutory tolling beyond that date. We now consider whether the district court should have applied the doctrine of equitable tolling to deem the petition timely filed.
B. EQUITABLE TOLLING
“Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases ... and to further the principles of comity, finality, and federalism.” Woodford v. Garceau, — U.S. -,
[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for those rare instances where— due to circumstances external to the party’s own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.
Id. Principles of equitable tolling do not extend to garden variety claims of excusable neglect. Irwin v. Dep’t of Veterans Affairs,
The district court held that although the 1-year AEDPA limitations period is subject to equitable tolling, a “mistake of counsel does not serve as a ground for equitable tolling” as a matter of law. (J.A. at 328.) The court held that the circumstance that prevented Rouse from filing on time, his former counsel’s “slight miscalculation by relying on Fed.R.Civ.P.
1. Standard of Review
Before reviewing the district court’s decision, we consider the proper standard of review. We have not squarely addressed the proper standard of review of a district court’s denial of equitable tolling in the habeas context.
The other circuits are divided on the proper standard of review, with some applying abuse of discretion and others applying de novo review.
2. Whether Extraordinary Circumstances Beyond Rouse’s Control Prevented Him From Filing On Time
Turning to Rouse’s arguments, he first argues that his medical condition during the limitations period is an extraordinary circumstance beyond his control that prevented him from filing on time, thus warranting equitable tolling. Because Rouse simply provides no reason why his medical condition barred him from filing his habeas petition at least one day earlier, we hold that the district court did not abuse its discretion in denying equitable tolling on this basis.
Second, Rouse contends that the “gross negligence and unprofessional conduct” of his former habeas counsel in “misinterpreting] the statutory requirements” constitutes an extraordinary circumstance beyond his control that prevented him from filing on time. (Appellant’s Br. at 25, 27-28.) The errors of Rouse’s former counsel, however, were neither extraordinary nor, for purposes of our inquiry, external to Rouse’s own conduct.
We review de novo the district court’s denial of equitable tolling on this basis because the district court held that, as a matter of law, a “mistake of counsel does not serve as a ground for equitable tolling.” (J.A. at 328.) This circuit has held that “a mistake by a party’s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party’s control where equity should step in to give the party the benefit of his erroneous understanding.” Harris,
Moreover, the actions of Rouse’s attorneys are attributable to Rouse, and thus, do not present “circumstances external to the party’s own conduct,” Harris,
In both Carrier and Coleman, the Supreme Court considered whether an attorney’s error constituted cause for a procedural default, which like equitable tolling, requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Carrier,
Similarly, Rouse had no constitutional right to counsel in his federal habeas proceedings. See Pennsylvania v. Finley,
3. Whether We Should Apply A Different Test
Rouse argues that the “significance and magnitude of the potentially barred claim is a primary justification for equitable tolling,” (Appellant’s Br. at 32), and the fact that he “faces a death sentence is an important part of the equitable tolling equation,” (Appellant’s Br. at 31). It is undisputed that neither the nature of Rouse’s claims nor his sentence was a factor “beyond his control” during the limitations period or was a factor that affected his ability to meet the statutory deadline, and thus, these factors do not entitle Rouse to equitable tolling under our existing “extraordinary circumstances” test because that test requires the petitioner to present (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time. Harris,
First, we see no reason why the decision as to whether a court considers the claims in an untimely petition should depend on the nature of the claims in the petition. Allowing consideration of the merits of time-barred claims to creep into the equitable tolling analysis lets petitioners effectively circumvent the statute of limitations because the merits of their claims will always be considered. This would enable petitioners who were in no way prevented from complying with the statute of limitations to create delay and undermine finality — two of the reasons that precipitated enactment of the AEDPA statute of limitations. As discussed below, we reject Rouse’s invitation to apply equitable tolling based on a factor that had nothing to do with his failure to file on time.
Rouse claims that Justice Stevens’s concurrence in Duncan v. Walker,
Rouse also relies on Baskin v. United States,
Finally, my dissenting colleagues rely on Lonchar v. Thomas,
At issue in Lonchar was whether “the Court of Appeals properly dismiss[ed][a]
My dissenting colleagues correctly point out that Rouse’s petition was filed only one day late and argue that “the most minor procedural default imaginable” should not bar federal habeas review in light of what they consider to be his “facially strong constitutional claim.” Post at 261. We recognize that “[a]t the margins, all statutes of limitations and filing deadlines appear arbitrary.” Lookingbill v. Cockrell,
Turning to the argument that the nature of Rouse’s sentence should affect the equitable tolling analysis, both Rouse and the dissent argue that we should follow the
Although Rouse’s underlying claims pertain to his trial, we deal here only with the application of the AEDPA limitations period. While it is undeniable that the Supreme Court has treated death differently, any distinctions between the procedures required in capital and noncapital cases “are primarily relevant to trial,” and the Supreme Court “has generally rejected attempts to expand any [such] distinctions further.”
In addition, the Supreme Court has repeatedly declined to treat death differently
The cases cited by my dissenting colleagues are not to the contrary. For example, quoting California v. Ramos,
Moreover, those cases cited by the dissent that discuss appellate decision-making do not support the dissent’s position that, in capital cases, the doctrine of equitable tolling allows courts to rewrite the AED-PA statute of limitations. For example, my dissenting colleagues contend that “the Supreme Court itself has, ‘in the interests of justice,’ been willing to overlook requirements that it would ordinarily impose in non-capital cases.” Post at 263 (citing Eddings v. Oklahoma,
The dissent also quotes Justice Scalia’s concurrence in Dobbs v. Zant,
In fact, relaxing the statute of limitations in capital cases would contradict one of the main purposes of the AEDPA which was “to reduce delays in the execution of state and federal criminal sentences, particularly capital cases.” Woodford v. Garceau, — U.S. -,
Because we deal today with the district court’s decision on habeas review not to toll the AEDPA limitations period, rather than with state capital procedures at trial or sentencing, we hold that Rouse’s death sentence does not change the test we apply to determine if equitable tolling is warranted.
III.
The delay involved in filing this petition may seem small but the principles at issue are large. My dissenting colleagues would abandon our existing extraordinary circumstances test in favor of a wide-ranging inquiry into a variety of factors other than the reasons why the petitioner did not comply with the statutory time limitation. This approach would make application of the statute of limitations to an individual case unpredictable and indeterminate and essentially would disregard the balance that Congress has struck between the need for habeas review and the need for comity, finality, and federalism. In short, we are being asked here not to follow the law, but essentially to recreate it. For these reasons, we held in Harris v. Hutchinson, that “any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes.” Harris, 209 F.3d at
For the foregoing reasons, we hold that Rouse’s state post-conviction review was no longer pending as of February 5, 1999, when the Supreme Court of North Carolina denied his petition for certiorari, and thus, that he is not entitled to 'statutory tolling beyond that date. Because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the AEDPA statute of limitations, he is not entitled to equitable tolling. Accordingly, Rouse’s petition was filed after the expiration of the limitations period, and we affirm the district court’s dismissal of Rouse’s petition as untimely.
AFFIRMED
Notes
. Rouse named R.C. Lee, Warden of Central Prison, as the Respondent in his petition. For ease of reference, we refer to Respondent as “the State.”
. Rouse raised in the state MAR court the same claim of juror misconduct that he attempts to raise in this federal habeas petition, alleging that a juror failed to volunteer information that his mother had been the victim of a violent crime and that the same juror falsely answered voir dire questions regarding his views on race. The state MAR court found that the juror was never asked any individual questions regarding whether any member of his family had been a victim of violent crime and that the acoustics in the trial courtroom made hearing difficult, such that the juror did not hear the questions directed to the entire group. State v. Rouse, Nos. 91-CRS-3316-17, 92-CRS-2 (N.C.Super.Ct. Aug. 2, 1996) (unpublished), (Supp. J.A. at 294, 297). The state MAR court also found that defense counsel was given an unlimited opportunity to voir dire the juror about his views on race, the juror answered all questions asked of him, and no evidence showed that the juror lied in answering the questions or that the juror was biased at the time of voir dire. Id., (Supp. J.A. at 294-95, 306-07). Accordingly, the state MAR court denied relief.
. Specifically, the intervening legislation was "An Act to Expedite the Postconviction Pro- . cess in North Carolina," ratified by the General Assembly on June 21, 1996. Among other things, the Act amended N.C.G.S. § ISA-1415 to add a new subsection regarding the extent of disclosure of prosecution and law enforcement investigative files required in the post-conviction process in capital cases. See State v. Bates,
. Although the date reflected in the published opinion is February 4, 1999, see State v. Rouse,
. At the time Rouse filed his petition, Rule 6(e) stated in its entirety:
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the'prescribed period.
Fed.R.Civ.P. 6(e) (2000) (emphases added).
. In the non-habeas context, we review the district court’s denial of equitable tolling for an abuse of discretion. See, e.g., Chao v. Va. Dep’t of Transp.,
. Compare Fierro v. Cockrell,
. Because we review this case on appeal from the district court's grant of the State’s motion to dismiss, we, like the district court, must assume all facts pleaded by Rouse to be true. Trulock v. Freeh,
. See United States v. Saro,
. Abuse of discretion review applies because the district court found that, accepting all of the facts Rouse pled about his health to be true, his medical condition did not amount to an extraordinary circumstance beyond his control that prevented him from filing because he was not in "any way incompetent for a substantial part of the [limitations period].” (J.A. at 331.)
. Although the Third Circuit allowed equitable tolling based on attorney error in Fahy v. Horn,
. The dissent contends that Rouse's former habeas counsel were not his agents because of Rouse’s limited mental ability and because of the "bewildering complexity of the habeas corpus rules.” Post at 259 n. 3. We have found no support for the proposition that, during the course of representation, lawyers are only sometimes the agents of their clients. Based on a post-indictment neuropsychological evaluation of Rouse, the state trial court found that Rouse was competent to stand trial. Rouse does not challenge this finding, and the dissent does not suggest that Rouse at some later time became incompetent. It is undisputed that Rouse did not seek to represent himself in filing his federal habeas petition. Instead, Rouse knowingly and voluntarily chose to be represented by counsel, and he bears the risk of the error of that counsel. See Murray v. Carrier,
. Rouse argues that he did not "condone, ratify, encourage, or otherwise agree” with the late filing. (J.A. at 356.) As discussed in the text, whether Rouse participated in the decision is irrelevant. Moreover, the costs of undermining the statute of limitations would be the same if the error "stem[med] from counsel’s ignorance or inadvertence rather than from a deliberate decision.” Carrier,
. Rouse relies heavily on McLaughlin v. Lee, No. 5:99-HC-436 (E.D.N.C. Oct. 17, 2000) (unpublished), in which the district court equitably tolled the one-year limitations period. In that case, McLaughlin’s attorneys, as the district court emphasized, "did not make a ‘mistake’ as to the statutory requirements. Instead, they failed to take any action at all.” Id. at 7. The court concluded that McLaughlin's attorneys placed him "in the extraordinary situation of believing that he had counsel when, in fact, he had counsel in name only.” Id.
Even assuming that such utter abandonment constitutes extraordinary circumstances "external to the party's own conduct,” Harris,
. It seems curiously circular to say, as it appears my dissenting colleagues would, that we consider the merits in deciding whether we can consider the merits. We note, however, that even if we were to agree that the strength of the claims in a petition should affect a court’s decision to invoke equitable tolling, Rouse’s claims, evaluated in light of the deference that we statutorily are required to give to state court factual findings and conclusions of law, are far from strong. See 28 U.S.C.A. §§ 2254(d), (e)(1); see also Rouse v. Lee,
. Contrary to the dissent’s assertion, post at 260, Spencer v. Sutton does not suggest that the strength of the claim in a habeas petition affects the decision whether to equitably toll the limitations period.
. As the dissent points out, the Federal Rules Governing Section 2254 Cases support the conclusion that the merits of the underlying claim are not part of the equitable tolling analysis. See post at 258 n. 1. Because the State does not file a. copy of the decision of the state post-conviction court in the federal district court until it files its answer, Fed. R. Governing Section 2254 Cases 5, a motion to dismiss a petition as untimely will often be before the federal district court before the state post-conviction decision is filed. Thus, the Rules contemplate that the federal court may rule without considering the merits because the court certainly could not consider the merits of the underlying claims without the benefit of the state post-conviction decision, to which federal habeas courts owe considerable deference. 28 U.S.C.A. §§ 2254(d), (e)(1).
. Similarly, the cases cited by the dissent, post at 261, for the proposition that "death is different" involve heightened procedures necessary at trial or sentencing. See Ring v. Arizona,
. The dissent also suggests that the majority opinion in Eddings v. Oklahoma stands for the proposition that "the Court has treated the requirement that an argument be raised below ... as merely ‘technical!].’ " Post at 262-263 (citing Eddings majority opinion). The majority opinion in Eddings stands for no such proposition. The Court did not, as is implied by the dissent, waive the requirement that arguments be presented below in order to preserve appellate review. Instead, the Court found "that in his petition to the Court of Criminal Appeals for a rehearing, Eddings specifically presented the issue and at some considerable length.” Eddings v. Oklahoma,
. Other courts have also denied equitable tolling in capital cases, applying the same test as they apply in non-capital cases. See, e.g., Fierro,
Dissenting Opinion
dissenting:
In this federal habeas petition, his first, Kenneth Bernard Rouse, a prisoner under sentence of death, seeks relief on the basis of evidence that a juror who voted to convict and execute him deliberately concealed contempt for all African-Americans and a particular bias against Rouse in order to serve on Rouse’s jury. The district court held that Rouse’s former lawyers filed his habeas petition one day late and that Rouse presented no grounds for equitably tolling the limitations period and so dismissed Rouse’s habeas petition as untimely. The majority affirms. Thus, Rouse faces his death, denied all federal habeas review and without ever having received a hearing in any court on his disturbing evidence of juror bias. With respect, I must dissent. If equity has any place in our habeas jurisprudence, and the Supreme Court has long “adhered to the principle that habeas corpus is, at its core, an equitable remedy,” Schlup v. Delo,
I.
Eleven years ago, a North Carolina all-white jury convicted Rouse, an African-American, of the robbery, attempted rape, and brutal murder of Hazel Colleen Broadway, a sixty-three-year-old white woman. On the jury’s recommendation, the state judge sentenced Rouse to death. After his appeal was denied, Rouse discovered new evidence that the mother of one member of the jury had been robbed, raped, and murdered by a man who was later executed for the crimes. When all prospective jurors were asked for such information at voir dire, the victim’s son had remained silent.
After serving on Rouse’s jury, this juror reportedly stated that he had intentionally concealed his mother’s tragic death and carefully crafted his other responses to voir dire questions, because he wanted to be on the jury that judged Rouse. Moreover, this juror assertedly expressed intense racial prejudice against African Americans, calling them “niggers” and opining that African Americans care less about life than white people do and that African-American men rape white women in order to brag to their friends.
Because the juror did not reveal his own family’s tragedy or his virulent racial prejudice, Rouse had no opportunity to object to the juror or challenge his ability to judge and sentence Rouse impartially. Based on this newly discovered evidence, Rouse asserted a jury bias claim on collateral attack in state court, which twice denied his claim without a hearing. Rouse then filed the petition giving rise to this appeal — his first federal habeas petition—
As his appeal reaches us, therefore, Rouse has never received, even post-sentence, any opportunity to explore at a hearing the evidence he proffers of appalling bias on the part of one of his jurors. Of course, a federal court might conclude that this claim lacks merit; but at present, no federal court has ever examined the claim.
II.
Although Rouse’s former lawyers relied on a facially applicable state procedural rule and federal decisions interpreting Federal Rule of Civil Procedure 6(e) in calculating the filing deadline for his federal habeas petition, they erred and filed that petition late. But the petition was only one day late.
The majority, however, concludes that Rouse has failed to meet the requirements necessary for a court to equitably toll the statute of limitations. According to the majority, a petitioner in Rouse’s position must demonstrate “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time” in order to merit equitable tolling. Ante at 245. Apparently, in the majority’s view, all that we have before us in this case is a “garden variety claim[ ] of excusable neglect.” Id. Dismissing as irrelevant both the nature of Rouse’s underlying claim and the fact that he faces a death sentence, the majority concludes that the district court properly refused to equitably toll the statute of limitations. Id. at 241, 251. I cannot agree.
As the majority properly acknowledges, ante at 300, we have recently joined every other circuit to consider the question to hold that the statute of limitations at issue
In making his case for such relief, Rouse maintains that his court-appointed lawyers “played Russian roulette with [his] rights” in waiting to file his petition, and that their “inexcusable” and “unconscionable” conduct provides grounds for equitable tolling of the statute of limitations in his case. Supplemental Brief of Appellant at 7. He notes that he has diligently pursued every previous avenue of review available to him. Moreover, the record reveals that Rouse personally neither knew of nor consented to a late filing of his federal habeas petition, and no evidence suggests that the late filing was a tactical decision of counsel.
Nevertheless, if Rouse had offered only these reasons, our precedent might well have foreclosed equitable tolling, even in the face of the egregious attorney error at issue here. For we have held that “a mistake by a party’s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party’s control where equity should step in to give the party the benefit of his erroneous understanding.” Harris,
In so holding, we also expressly recognized that equitable tolling is “‘a discretionary doctrine that turns on the facts and circumstances of a particular case’ ” and, therefore, “ ‘does not lend itself to
III.
Few cases present “facts and circumstances” as compelling as this one. Not only did Rouse file his petition only one day late, but also his court-appointed counsel’s disastrous error rested on plausible, albeit incorrect, legal theories, some of which have since been clarified. See Fahy v. Horn,
Moreover, Rouse presents what must be considered on its face a powerful constitutional claim: that a juror’s personal vengeance and racial bias infected his death sentence. To date, he has never been afforded an opportunity to explore the evidence that one of his jurors harbored an invidious prejudice against African-Ameri
Contrary to the majority’s assertion, ante at 251-254, the strength of the claims in a habeas petition must inform a court’s decision to exercise its equitable power to toll limitations at least in cases such as this one, where the evidentiary basis for such claims has never been subjected to judicial scrutiny. See Lonchar v. Thomas,
Indeed, a facially strong constitutional claim that questions the fundamental fairness of the very process by which a petitioner was convicted and sentenced “compels review regardless of procedural defaults.” Murray v. Carrier,
Rouse’s call on our equitable powers is made all the more urgent by the fact that the sentence that is assertedly tainted by racial and personal bias is a death sentence. Until today, we have not had occasion to consider equitable tolling in a habe-as case involving a sentence of death. Cf. Spencer,
The fact is that death is different. The phrase itself is timeworn and familiar— because it is true. Most of us, if we have lived long enough, have seen death. Each of us will face and know death one day. We share therefore in the understanding, though imperfect and incomplete, that “in its finality,” death “differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina,
Accordingly, when we consider the deliberate infliction of death, even on someone who has wantonly dealt it out, we must act with particular care. As the Supreme Court has emphasized, “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,” that is, “the procedure by which the State imposes the death sentence,” to “ensur[e] that the death penalty is not meted out arbitrarily or capriciously.” California v. Ramos,
Thus, the Supreme Court itself has, “ ‘in the interests of justice’,” been willing to overlook requirements that it would ordinarily impose in non-capital cases. Eddings v. Oklahoma,
And, contrary to the majority’s suggestion, ante at 253-255, the Court has not foreclosed the possibility that the fact of a death sentence should inform a court’s consideration of a petitioner’s underlying claims in post-conviction proceedings. Although today we confront “only” a district court’s decision on habeas review not to toll the statute of limitations, upholding that decision denies the possibility of any substantive judicial inquiry into the evidence underlying Rouse’s juror bias claim. We cannot hide behind procedural rules when confronted with such circumstances.
Indeed, the Supreme Court has made clear that a reviewing court must exercise great care before allowing a capital petitioner’s initial claim for federal habeas relief to be summarily dismissed. See Lonchar,
A decision to toll the statute of limitations in this case, moreover, raises none of the concerns related to constitutional interpretation that are sometimes invoked in opposition to a “ ‘death-is-different’ jurisprudence,” Shafer v. South Carolina,
Nor is there any reason to fear that within our own circuit equitable tolling in Rouse’s case might “loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation.” Harris,
Until today, it appears that no appellate court has withheld all federal habeas review from a man under sentence of death, who presents evidence supporting a facially strong constitutional claim, but who filed his federal petition one day late.
Like the Third Circuit, I believe it is appropriate “to exercise this leniency under the facts of this capital case where there is no evidence of abuse of the process.” Fahy, 240 F.3d at 245. Given that this case involves the shortest possible delay in filing a habeas petition, a total lack of prejudice to the State, a petitioner who, despite considerable mental shortcomings, has been diligent in all other regards, evidence of an apparently compelling constitutional claim that has never been explored by any court, and the fact of a death sentence, to refuse tolling here would be “unconscionable” and might well result in “gross injustice.” Harris,
IV.
Today, a majority of this court allows the State of North Carolina to proceed with the execution of a man who may have been convicted and sentenced by a biased jury. When a court asks whether a petitioner in Rouse’s position has a “special claim on equity,” it should look to justice and conscience, calibrated by judicial experience. I believe that a pending death sentence must affect our exercise of conscience and our sense of justice.
Confronting the particular demands of capital cases, the Supreme Court “has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” Eddings,
Less than twenty years ago, Justice Lewis Powell famously expressed his confidence that it is “unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free.” Ford,
As the majority suggests, the principles at issue in this case are indeed “large.” Ante at 256. The Supreme Court has long recognized the writ of habeas corpus as the most powerful of equitable remedies, the “best and only sufficient defence of personal freedom.” Ex Parte Yerger,
Kenneth Rouse faces his death with reason to believe that one of the twelve citizens entrusted with doing impartial justice in his case sought so eagerly to condemn him that the juror deliberately misled the court, hiding basic facts as to his particular bias against Rouse and his contempt for all African Americans. If not in Rouse’s interest then in the interest of justice, our court should not allow one day’s delay to rob a man on death row of all federal habeas review of such a serious and troubling claim.
In keeping with the Supreme Court’s teaching that capital cases are different, I would toll the statute of limitations in the rare circumstances presented in this case. Judge Michael, Judge King, and Judge Gregory join in this dissent.
. Indeed, the district court could not have examined the claim in any depth, because it rejected Rouse’s petition at such an early stage that the decision of the state post-conviction court, the dispositive decision for federal habeas review, was not even part of the record before the district court. Moreover, I note that procedural decisions on limitations grounds typically occur early, and in considering equitable tolling an appellate court should take account of this, rather than assume that a district court will be able to undertake a full review in considering tolling. After all, it is the State's burden to file the state-court opinion, not the petitioner’s, and a State need not file the state-court opinion until the State files its answer to the habeas petition in federal court. See Fed. R. Governing Section 2254 Cases 2, 5. Thus, if a State moves to dismiss on timeliness grounds before ever filing an answer, as North Carolina officials did here, the habeas court may well not have the state-court opinion in the record before it.
. The North Carolina Supreme Court denied certiorari on February 5, 1999. Rouse’s petition would thus have been due on February 5, 2000. See Hernandez v. Caldwell,
. I agree that Rouse's health does not warrant tolling. Rouse’s habeas lawyers were able to file his habeas petition on February 8, and Rouse provides no reason why his medical condition barred filing one day earlier. However, I note that Rouse’s ability to monitor his court-appointed counsel, who, according to the majority, bound Rouse by their errors "not because he participated in, ratified, or condoned their decision, but because they were his agents,” can hardly be considered normal under any traditional understanding of "standard principles of agency." See ante at 248-249. As the State acknowledges, Rouse’s mental ability, although one category "above mental retardation,” was classified as " 'borderline intellectual functioning.’ ” Supplemental Brief of Appellee at 3. Psychiatric evaluations revealed that during the 1980s and 1990s Rouse had an IQ of between 70 and 80, and that, due to a combination of "minimal brain dysfunction,” "pediatric head injury,” "a severely dysfunctional family,” and "early substance abuse,” he reached adulthood "with an extremely compromised psychological and neuropsychological functioning.” See J.A. 193-201. These facts render it impossible to conclude that Rouse could meaningfully participate in an agency relationship with his lawyers, especially one concerning the bewildering complexity of the habeas corpus rules.
. The state post-conviction court (the MAR court), whose ruling, of course, was not even before the district court, see supra n. 1, disposed of Rouse's claim, apparently on the basis of a credibility determination but without a hearing. After noting "that the acoustics in the courtroom where defendant was tried sometimes makes hearing difficult,” the state MAR court concluded that the assertedly biased juror "did not hear” a question as to whether any juror had a relative who had been a victim of a violent crime. Yet the following facts contradict this conclusion: (1) the juror’s admission that "I knew that if I disclosed what had happened to my mother, I would be excused from serving ... I wanted to serve, ... so I did not reveal the information”; (2) the state post-conviction court's acknowledgment of this admission; (3) the court's express finding (substantiated by the voir dire transcript) that all prospective jurors were asked if they had "been a victim of any kind of violent crime or any family members or any close relative ever been a victim of a violent crime”; (4) the court's further express finding that the transcript reflected no response to that question; and (5) the court's acknowledgment that immediately after the group question about family victims, prospective jurors were told that the trial "involv[ed] a first-degree murder, armed robbery, and rape” (information the juror plainly took in, based on his knowledge of the nature of the trial and his resulting admitted desire to serve on the jury). State MAR Court, Post-Argument Supp. to Appellate Record, App. 3 at 3, 4, 15. Therefore, the state court apparently reached its dispositive finding, a credibility determination that contradicts the official written record of the voir dire, without the benefit of face-to-face consideration of any sort, without a hearing, and without even a direct assertion by the juror in support of the finding. Thus, the MAR court's "findings” would be due no deference even if they had been before the district court. See 28 U.S.C.A. § 2254(d)(2), (e)(1) (West Supp. 2003) (governing federal habeas review of state-court factual findings under AEDPA).
. There is nothing "circular,” ante at 252 n. 15, in taking into account the merits of a petitioner's claim when determining Whether that claim deserves full consideration. Cf. Miller-El v. Cockrell,
. Although other courts have on occasion refused tolling in capital cases, they have done so in cases involving greater (typically much greater) delay, or when petitioners have shown less diligence than Rouse, or both. See Fierro v. Cockrell,
. No one quarrels with the AEDPA’s intent to "reduce delays ... and to further the principles of comity, finality and federalism.” Ante at 246 (quoting Woodford v. Garceau, - U.S. -,