Roger Lewis COULTER, Petitioner-Appellant, v. Wendy KELLEY, Director, Arkansas Department of Corrections, Respondent-Appellee.
No. 16-1488
United States Court of Appeals, Eighth Circuit.
September 14, 2017
Submitted: January 12, 2017
Black testified at trial. He denied doing anything with his hands after the traffic stop, and denied throwing a firearm out the window during the chase. In cross-examination about his credibility, Black admitted to prior convictions for aiding and abetting a drive-by shooting, aggravated robbery, and twice unlawfully possessing a firearm, in 2011 and 2013. He also admitted to attempting to bribe a prosecution witness to change his testimony in the aggravated robbery case. The jury reasonably could discredit Black‘s denials.
Taking all of this circumstantial evidence together, a rational jury could conclude beyond a reasonable doubt that Black possessed a firearm on April 22, 2014. The jury rationally could infer beyond a reasonable doubt that Black brought a firearm (not an undiscovered phone charger) to Rush‘s car, that the two men fled from police after Black considered whether to conceal the gun under his seat, that Black threw the gun out the window when he knew that he could not be seen by police, and that Black lied at trial when he denied possessing the gun.
In deciding whether there was proof beyond a reasonable doubt, the jury was permitted to consider whether the confluence of all these circumstances—the pledge to carry a gun at all times, the furtive movements after the initial stop, the flight from police, the discovery of the damaged gun on the chase route precisely where the vehicle went out of sight, and the employees’ testimony that no gun was seen earlier—could reasonably be explained as merely an unlucky coincidence for Black. The majority‘s contrary approach of proffering innocent explanations for each piece of evidence in isolation and concluding that there must be reasonable doubt is inconsistent with the proper standard of review. The jury was not irrational to return a verdict of guilty. I would affirm the judgment of conviction in Black‘s case.6
proach of proffering innocent explanations for each piece of evidence in isolation and concluding that there must be reasonable doubt is inconsistent with the proper standard of review. The jury was not irrational to return a verdict of guilty. I would affirm the judgment of conviction in Black‘s case.
Pamela Rumpz, Assistant Attorney General, Eileen W. Harrison, Assistant Attorney General, Attorney General‘s Office, Little Rock, AR, for Respondent-Appellee.
Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Roger Coulter was convicted of murder in Arkansas and sentenced to death. He petitioned for a writ of habeas corpus un-
Under the federal Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner has one year from the latest of four dates to file a habeas petition.
Coulter raises three issues on appeal. First, he contends that the district court erred in considering the State‘s statute-of-limitations defense at all. He contends that the State waived the defense by failing to raise it or, alternatively, that the interests of justice required the district court to forego addressing the defense. Second, Coulter argues that the district court either applied the incorrect provision to measure the one-year period under
I.
In 1989, a jury convicted Coulter in the Ashley County Circuit Court of capital murder for the rape and murder of a five-year-old girl and sentenced Coulter to death by lethal injection. In 1991, the Arkansas Supreme Court affirmed the conviction, and the Supreme Court denied certiorari. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied, 502 U.S. 829, 112 S.Ct. 102, 116 L.Ed.2d 72 (1991).
In December 1991, Coulter sought state post-conviction relief. Almost eight years later, on October 8, 1999, the circuit court denied Coulter‘s petition. The circuit court mailed a copy of the judgment to Coulter‘s attorney, but sent it to an old address. On October 21, the clerk of court received the judgment in return mail; it was marked as “undeliverable as addressed-forwarding order expired.” The record shows no additional attempts by the circuit court to notify Coulter‘s attorney of the denial of post-conviction relief. Under Arkansas Criminal Rule of Appellate Procedure 2(a)(4), Coulter had until November 8, 1999, thirty days after entry of the circuit court‘s judgment, to file a notice of appeal. See also
On January 25, 2000, over two months after the appeal deadline had expired, the Arkansas Attorney General‘s office contacted Coulter‘s attorney and notified him that Coulter‘s request for post-conviction relief had been denied. That day, Coulter‘s attorney filed a notice of appeal with the Arkansas Supreme Court. On February 22, Coulter‘s attorney filed a motion for belated appeal under Arkansas Criminal Rule of Appellate Procedure 2(e). The Arkansas Supreme Court granted the motion on March 30 and considered the appeal. The state supreme court eventually affirmed the denial of Coulter‘s request for post-conviction relief and issued its mandate on December 19, 2000.
On October 1, 2001, Coulter filed his petition for habeas corpus in the district court. The district court permitted Coulter to amend his petition twice, in September 2003 and January 2007, to include additional challenges to his conviction. In Sep-
The State then filed a “First Amended Response to Petitioner‘s Second Amended Petition.” In its response, the State stated that it interpreted the court‘s September order as granting the State leave to amend its responsive pleading. Alternatively, the State sought the court‘s leave to amend its pleading under
In its order, the district court first addressed the State‘s motion to amend its response under Rule 15(a)(2) and declined to accept the amended response based on the court‘s briefing order. The court noted that Rule 15 provides that leave to amend is to be freely granted when justice so requires. The court concluded that the State‘s motion to amend its response to Coulter‘s second amended petition was not filed in bad faith, with dilatory motive, or with undue delay, noting that the parties had been actively litigating the procedural defenses and statute-of-limitations arguments since Coulter filed his Second Amended Petition in January 2007. The court also determined that allowing the State to amend its response would not unduly prejudice Coulter, because Coulter had the opportunity to raise his arguments in two rounds of briefing and to present evidence at a hearing. Finally, the district court observed that it had permitted Coulter to amend his petition twice. The court stated that Coulter failed to present any reason why the State “should not enjoy the same consideration and application in the interest of justice.” Accordingly, the court granted the State‘s motion to amend.
The district court then addressed the statute-of-limitations argument and dismissed Coulter‘s petition as untimely. In concluding that the petition was untimely, the court reasoned as follows: Under AEDPA, Coulter‘s limitations period was tolled while his state post-conviction proceedings were pending in the Ashley County Circuit Court. The limitations period began to run after the time for filing an appeal expired on November 8, 1999. The limitations period ran for 106 days until Coulter filed his motion for belated appeal on February 22, 2000. The limitations period was then tolled until December 19, 2000, when the Arkansas Supreme Court issued its mandate affirming the denial of Coulter‘s post-conviction relief. Coulter filed his federal habeas petition 286 days later, on October 1, 2001.
The district court determined that a total of 392 untolled days elapsed before Coulter filed his petition, so with a limitations period of 365 days, his petition was twenty-seven days late. The court also denied Coulter‘s request for equitable tolling, because he failed to show that he was reasonably diligent in pursuing his rights. The court then denied Coulter‘s post-judg-
II.
We consider first whether the district court abused its discretion by considering a statute-of-limitations defense. Coulter argues that the State waived this defense because it repeatedly engaged the merits of Coulter‘s petition, failed to argue that the original petition was untimely in its responsive pleadings, asserted in previous court filings that Coulter‘s petition was timely, and waited several years to raise the limitations defense. Alternatively, Coulter contends that the interests of justice are best served by addressing the merits of his petition. We review the district court‘s decision for abuse of discretion. Hammer v. City of Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003); see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971).
Waiver requires the “intentional relinquishment or abandonment of a known right.” Wood v. Milyard, 566 U.S. 463, 474, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012) (quoting Kontrick v. Ryan, 540 U.S. 443, 458 n.13, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). In Wood, the Court determined that a State waived a statute-of-limitations defense when it said in the district court that “Respondents are not challenging, but do not concede, the timeliness of the petition.” Id. at 467. The Court observed that the State expressed a “clear and accurate understanding of the timeliness issue” and “deliberately steered the District Court away from the question and towards the merits of [the] petition.” Id. at 474. On the other hand, the Court held in Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), that a State did not waive a statute-of-limitations argument when the State committed “merely an inadvertent error” in failing to raise it earlier. Id. at 211.
Coulter has not established that the State waived the statute-of-limitations defense here. Unlike the petitioner in Wood, Coulter has not identified any expression by the State of a clear and accurate understanding of the timeliness issue and a deliberate effort to forego raising a meritorious defense. The State did assume in certain pleadings that Coulter‘s original petition was timely, but there is nothing to show more than negligence by counsel for the State in failing to recognize earlier that Coulter‘s original petition was untimely. The State thus did not knowingly and intelligently waive its statute-of-limitations defense.
Next, Coulter argues that in determining whether to address the State‘s statute-of-limitations defense, the district court was required to apply a more stringent standard than the rule of civil procedure that governs leave to amend pleadings. See
Rule 15(a)(2) states that “a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave.” The Rule further provides that “[t]he court should freely give leave when justice so requires.”
Coulter first argues that the district court abused its discretion in granting leave because the State‘s delay in raising the limitations defense prejudiced him. Coulter asserts that if the State had raised the defense earlier, then he would have been able to establish a better case for equitable tolling. He asserts that his legal counsel, although present at the evidentiary hearing, was unable to recall certain facts about his case. But Coulter did not present this concern to the district court, so the State had no opportunity to present evidence or argument about it, and the district court had no occasion to address it. Coulter‘s evidence of prejudice, moreover, was vague and speculative. He points only to his post-conviction counsel‘s answer, when asked whether there were things that he could not remember about the representation, that “I‘m sure there are a lot of things I can‘t remember, I‘m 76.” This evidence is insufficient to establish that the district court abused its discretion in concluding that there was no undue prejudice to Coulter from granting the State leave to amend its response.
Coulter‘s second contention is that the district court abused its discretion because the State had several opportunities to assert the defense earlier. Delay alone, however, is an insufficient reason to deny a litigant‘s motion to amend under Rule 15(a)(2). Moore-El v. Luebbers, 446 F.3d 890, 902 (8th Cir. 2006). Here, the district court found that there was no evidence that the State withheld the limitations argument strategically or in bad faith. The court also noted that the State and Coulter had been actively litigating the issues of procedural defense and limitations arguments during the two years between Coulter‘s second amended petition and the State‘s motion to amend its response; the amended response was thus compatible with the status of the litigation. There is no per se rule against even sua sponte consideration of a statute of limitations in a capital case, see Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008), so the nature of the case did not preclude the court from granting leave to amend. The court ensured that Coulter was able to state his position on the limitations issue in two rounds of briefing and at an evidentiary hearing. The court‘s ruling also aligned with its previous orders granting Coulter leave to amend his original 2001 petition twice, in 2003 and 2007. We see no abuse of discretion in the district court‘s evenhanded application of Rule 15(a)(2).
III.
For the first time on appeal, Coulter argues that the district court incorrectly applied
We ordinarily do not consider an argument for reversal that is raised for the first time on appeal. Williams v. Clarke, 40 F.3d 1529, 1535 (8th Cir. 1994). Coulter contends that the rule is inapplicable here, because an argument about the proper trigger date for the statute of limitations—like the standard of review under AEDPA, see Ward v. Stephens, 777 F.3d 250, 257 n.3 (5th Cir. 2015)—cannot be waived. Wood already established, however, that a State can waive a statute-of-limitations defense, and Day said that a court is not “obliged” to raise the issue sua sponte. 547 U.S. at 209. There is no merit, therefore, to Coulter‘s suggestion that ordinary procedural rules requiring presentation in the district court cannot apply to a statute-of-limitations argument.
Coulter next suggests that vigorous litigation in the district court about equitable tolling provided the court with an opportunity to apply
Coulter contends that he is raising only a new “argument” on appeal, not a new “issue,” and that we have not refused to consider “each nuance or shift in approach urged by a party simply because it was not similarly urged below.” See Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991). Coulter raised one statutory argument before the district court: whether
Coulter also urges us to exercise our discretion to consider the new issue for the first time on appeal. We typically do so only when a party presents a question of law and refusing to determine the issue could lead to injustice. In re Modern Textile, Inc., 900 F.2d 1184, 1191 (8th Cir. 1990). On the legal issue here, we are skeptical that a court clerk‘s failure to send notice of a judgment to counsel is a state-created “impediment” that “prevented” Coulter from filing a habeas petition. He was free to file a petition at any time. Equitable tolling is available to address delayed notice that leads a prisoner to believe that filing was not necessary or ripe, but
IV.
Coulter next challenges the district court‘s application of
The district court concluded that Coulter‘s state post-conviction proceedings ceased to be “pending” when his time to appeal expired on November 8, 1999. See
Coulter contends that his petition was timely because his state post-conviction proceedings remained “pending” between November 8, 1999 (the date when the time for filing a notice of appeal expired) and February 22, 2000 (the date when Coulter filed his motion for belated appeal with the state supreme court). If that were correct, then there would be another 106 days of tolling under
Coulter‘s argument is based on Arkansas Criminal Rule of Appellate Procedure 2(e). That rule provides that an appellant who failed to take a timely notice of appeal may move for belated appeal within eighteen months of the “date of entry of judgment or entry of the order denying post-conviction relief from which the appeal is taken.” Upon such a motion, the Arkansas Supreme Court “may act upon and decide a case . . . when a good reason for the omission is shown by affidavit.”
An application for post-conviction review is pending “as long as the ordinary state collateral review process is in continuance—i.e., until the completion of that process.” Carey v. Saffold, 536 U.S. 214, 219-20, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (internal quotation marks omitted). The Supreme Court derived this conclusion from the common meaning of the term: “The dictionary defines ‘pending’ (when used as an adjective) as ‘in continuance’ or ‘not yet decided.’ It similarly defines the term (when used as a preposition) as ‘through the period of continuance . . . of,’ ‘until the completion of.‘” Id. at 219, 122 S.Ct. 2134 (citation omitted) (quoting Webster‘s Third New International Dictionary 1669 (1993)).
Applying Saffold, this court held in Streu v. Dormire, 557 F.3d 960 (8th Cir. 2009), that once a petitioner‘s deadline for filing a notice of appeal passed without action by the petitioner, the state post-conviction application ceased to be “pending.” Id. at 966. We explained that once the deadline passes, there is nothing “in continuance” or “not yet decided.” We therefore concluded that the petitioner‘s state post-conviction proceedings were not pending between the expiration of the time for appeal and the filing of a motion for belated appeal in Missouri. Id.
Coulter argues that Streu is inapposite, because the Arkansas rule specifically allows an appellant eighteen months in which to file a motion for belated appeal, while Missouri had no such rule in Streu and simply adjudicated the motions on an ad hoc basis. Whether the appeal was “pending” before the motion was filed, however, does not depend on whether a State has codified the procedure for belated appeals. Missouri (through decisional law) and Arkansas (through Rule 2(e)) both allow for belated appeals based on motions that are filed months after the ordinary time for filing an appeal has expired. Streu established that even when the court grants a motion to proceed with a belated appeal, the application for post-conviction relief is not considered “pending” during the period after the original deadline and before the motion for belated appeal is granted. Accord Gibson v. Klinger, 232 F.3d 799, 806-07 (10th Cir. 2000) (holding that despite state rules that allow a petitioner to file an appeal out of time, a petitioner‘s state post-conviction relief was not “pending” until the petitioner complied with those state procedures to seek an appeal). The district court thus ruled correctly that Coulter‘s application was not pending between November 8, 1999, and February 22, 2000.
Alternatively, Coulter argues that his state post-conviction proceedings were “pending” again when he filed a notice of appeal with the county clerk on January 27, 2000. But the time for filing a notice of appeal had expired on November 8, 1999, and the “notice” filed on January 27, 2000, was a nullity. It could not revive the state post-conviction application or make it pending. At that point, Coulter‘s only recourse was to file the motion for belated appeal with the state supreme court. Nothing was “pending” before Coulter filed his motion on February 22.2
V.
Coulter‘s final argument is that he is entitled to equitable tolling of the statute of limitations. To receive equitable tolling, a petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). The diligence required for equitable tolling is reasonable diligence, not “maximum feasible diligence.” Id. at 653, 130 S.Ct. 2549 (quotation omitted). The district court concluded that although Coulter had shown an extraordinary circumstance in the State‘s failure to provide notice of the judgment in his post-conviction proceeding, he did not show that he diligently pursued his rights. The court therefore declined to apply equitable tolling. We review this decision de novo. See English v. United States, 840 F.3d 957, 958 (8th Cir. 2016).
The State argues that the lack of notice to Coulter from the state circuit court was not an extraordinary circumstance that prevented Coulter from filing a timely petition, because Coulter‘s attorney was at fault for failing to change his address on file with the clerk of court. We need not decide that question, because we discern no error in the district court‘s conclusion that Coulter was not reasonably diligent. When the Arkansas Supreme Court issued its mandate in the post-conviction proceeding, approximately four months had run on Coulter‘s one-year limitations period. Coulter thus had over eight months remaining to file a timely habeas petition. That he failed to proceed promptly with preparing and filing a petition evidences a lack of diligence. See Pace, 544 U.S. at 419, 125 S.Ct. 1807; Earl, 556 F.3d at 724. Coulter argues for the first time on appeal that he showed diligence by filing two motions during the eight months—a motion to appoint federal habeas counsel in January 2001 and a motion to authorize an investigator in June 2001. Merely acquiring legal representation, however, is not sufficient to establish reasonable diligence. Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004); see Muhammad v. United States, 735 F.3d 812, 816-17 (8th Cir. 2013). After counsel was appointed, Coulter still had approximately seven months to file his petition, but he did not move to authorize an investigator until five months later. Where a petitioner has not made good use of the time available to him within the limitations period, he has not demonstrated the diligence required to justify equitable tolling. See Williams v. Kelley, 830 F.3d 770, 773 (8th Cir. 2016); Gordon v. Arkansas, 823 F.3d 1188, 1195-96 (8th Cir. 2016); Nelson v. Norris, 618 F.3d 886, 893 (8th Cir. 2010); Earl, 556 F.3d at 724-25.
Coulter argues that he is not required to show diligence during the eight-month period, and that the district court should have started the one-year limitations period no earlier than January 25, 2000, when he learned of the judgment in his state post-conviction proceeding. He urges us to apply the so-called “stop-clock approach” recently adopted by the Second Circuit in Harper v. Ercole, 648 F.3d 132, 139-42 (2d Cir. 2011). Under this approach, the clock is stopped during the extraordinary circumstance that justifies equitable tolling: “[A] court may suspend the statute of limi-
Even assuming for the sake of analysis that our precedent does not foreclose the “stop-clock” approach, the Harper decision is not as forgiving as Coulter suggests. To secure equitable tolling, a petitioner also must show that the extraordinary circumstance caused him to miss the original filing deadline. Id. at 137. “A court may conclude that such causation is lacking where the identified extraordinary circumstances arose and concluded early within the limitations period. In such circumstances, a diligent petitioner would likely have no need for equity to intervene to file within the time remaining to him.” Id.
That is precisely the situation here. Coulter‘s extraordinary circumstance ended with eight months remaining in the limitations period. He or his attorney could have calculated the remaining time just as we and the district court have calculated it, and the availability of equitable tolling does not turn on the ease or difficulty of a discernable time computation. In any event, the dissent‘s contention that it was supposedly unclear that eight months remained, post, at 627, is irrelevant to whether Coulter was prevented from filing a timely petition, because the causation requirement means that he must proceed with reasonable diligence. See Harper, 648 F.3d at 138 n.5. Coulter has not demonstrated that he was incapable, with the exercise of reasonable diligence, of filing a timely petition within the remaining eight months, so equity will not intervene. Whether or not we apply the “stop-clock” approach, Coulter is not eligible for equitable tolling. See Hizbullahankhamon v. Walker, 255 F.3d 65, 76 (2d Cir. 2001) (Sotomayor, J.) (concluding that even if petitioner established an extraordinary circumstance based on twenty-two days when he was denied access to legal materials at the beginning of his one-year limitations period, petitioner was not entitled to equitable tolling for those days because this circumstance did not prevent him from filing a timely petition).3
* * *
The judgment of the district court is affirmed.
KELLY, Circuit Judge, dissenting.
After Roger Coulter‘s conviction became final, he filed a petition seeking state post-conviction relief, which remained pending in the state trial court for almost eight years. That petition was denied on November 8, 1999, but, because he was not properly notified, Coulter did not effectuate his appeal until February 22, 2000—a period of 106 days during which the federal stat-
In September 2009, almost eight years after Coulter filed his federal habeas petition, the district court requested briefing to address various procedural matters, including the statute of limitations. On October 29, 2009, the state filed its “First Amended Response to Petitioner‘s Second Amended Petition,” raising for the first time the issue of whether Coulter‘s 2001 petition was filed outside the one-year statute of limitations. After an evidentiary hearing and briefing from the parties, the district court denied Coulter‘s petition as untimely without addressing the merits. In my view, Coulter‘s petition satisfies the requirements for equitable tolling, and I would reverse the judgment of the district court and remand the petition for a decision on the merits. See English, 840 F.3d at 958 (“We review a denial of equitable tolling de novo, but review underlying fact findings for clear error.“).
A habeas corpus petitioner is entitled to equitable tolling on the basis of a showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at 649, 130 S.Ct. 2549 (quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807). The district court determined that Coulter had satisfied the second prong because “the [c]ircuit [c]ourt [c]lerk‘s failure to send . . . notice to the proper address constitutes an extraordinary delay beyond [Coulter]‘s control.” I agree that these facts constitute an extraordinary circumstance that stood in the way of Coulter‘s timely filing his petition. See Earl, 556 F.3d at 723-24 (“[A] significant state created delay in providing a prisoner with notice that his state judgment of conviction has become final amounts to an extraordinary circumstance beyond a prisoner‘s control which can equitably toll the AEDPA statute of limitations if the prisoner has pursued his rights with diligence.“).
The district court determined, however, that Coulter had not “diligently pursued his rights during the 286 days that elapsed between December 19, 2000 and October 1, 2001.”5 On that basis, the court denied Coulter‘s petition, finding him ineligible for equitable tolling. However, I do not believe that the 286 days are the relevant period during which diligence should be assessed. Rather—under facts such as these—I would apply what has been called the
Under the stop-clock approach, the “clock” (the one-year statute of limitations) is “stopped” (tolled) during the extraordinary circumstance so long as the petitioner demonstrates diligence during the time he is seeking to have tolled. The petitioner is not additionally required to demonstrate diligence during the untolled period that follows. See Luna, 784 F.3d at 651 (explaining that, under this approach, “[a]ny period during which both extraordinary circumstances and diligence are shown does not count toward the statute of limitations, just as any period during which a properly filed application for state post-conviction relief is pending does not count toward the statute of limitations” (citing Wood, 566 U.S. at 468-69 & n.3, 132 S.Ct. 1826)). Such an approach is consistent with the Supreme Court‘s recognition that “AEDPA‘s limitations period is not particularly long,” Holland, 560 U.S. at 647, 130 S.Ct. 2549, and the goal of giving “state prisoners . . . the full year allowed them by Congress to consider and prepare their federal habeas petitions.” Harper, 648 F.3d at 140 (quoting Zarvela v. Artuz, 254 F.3d 374, 382 (2d Cir. 2001)); see also Luna, 784 F.3d at 651 (“If the objective of the stop-clock approach is to give petitioners one full year of unobstructed time to prepare a federal habeas petition, a separate diligence-through-filing requirement appears to thwart that objective.“).
What diligence is reasonable must be assessed in light of the specific extraordinary circumstance that occurred. Cf. Holland, 560 U.S. at 650, 130 S.Ct. 2549 (quoting Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) for the proposition that “the exercise of a court‘s equity powers . . . must be made on a case-by-case basis“). In this case, I do not see how Coulter‘s diligence could be viewed as anything less than reasonable, as he still believed he was waiting for a disposition from a state court and that his competent counsel would inform him of such. See Luna, 784 F.3d at 649-50 (“Under some circumstances, communicating with one‘s lawyer and relying on the lawyer‘s assurances that everything is proceeding apace can suffice to demonstrate diligence.“). Coulter‘s state petition had been pending for almost eight years, and it was reasonable for him to believe it might remain pending for a bit longer. Without any indication from the state court that his petition had been resolved, Coulter was exercising reasonable diligence by continuing to wait. Cf. Holland, 560 U.S. at 650, 130 S.Ct. 2549 (“The ‘flexibility’ inherent in ‘equitable procedure’ enables courts ‘to meet new situations that demand equitable intervention and to accord all the relief
Finally, under the stop-clock approach, a petitioner still must show that the extraordinary circumstance was the cause for the failure to file the petition within the statute of limitations. See Harper, 648 F.3d at 137 (citing both Hizbullahankhamon, 255 F.3d at 76 (requiring a showing of causation) and Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (same)). Coulter has made this showing.7 In this case, the extraordinary circumstance itself—the clerk‘s failure to notify Coulter that his petition had been denied—made the one-year statute-of-limitations deadline virtually impossible to calculate with any certainty. Once he received notice, Coulter‘s counsel submitted multiple filings, ultimately reviving Coulter‘s state post-conviction appeal. But when the appeal was denied, it remained unclear how much time, if any, had run off Coulter‘s one-year clock. Even the State believed—or “assume[d]“—that Coulter‘s
For the foregoing reasons, I would find equitable tolling appropriate in Coulter‘s case and remand to the district court with instructions to address the merits of his petition. I respectfully dissent.