Lead Opinion
Concurrence by Judge ADELMAN.
Dissent by Judge O’SCANNLAIN.
ORDER AND OPINION
ORDER
The opinion filed on September 10, 2014, and appearing at
OPINION
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year period of limitation within which an individual seeking relief must file an application for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). Once that one-year period begins to run, it may be tolled only in certain circumstances. See id. § 2244(d)(2) (providing for statutory tolling); Holland v. Florida,
I. FACTS
The facts giving rise to this appeal are essential to our tolling analysis. We therefore describe those facts in more detail than we otherwise might.
A. Rudin’s Criminal Trial and Direct Appeal Proceedings
In April 1997, Rudin was charged with murder with the use of a deadly weapon and unauthorized surreptitious intrusion of privacy by listening deviсe, both in violation of Nevada state law. See Nev.Rev. Stat. §§ 200.010; 193.165; 200.650. Those charges arose out of the death of Rudiris husband Ron, whose charred remains had been discovered in Lake Mojave a few years earlier. See Rudin v. State,
Two-and-a-half weeks before trial commenced, it became clear to the court that Amador alone could not adequately defend Rudin. After a series of pretrial delays, the court appointed attorney Thomas Pita-ro to assist Amador with Rudiris defense. Pitaro quickly realized that Amador had not yet reviewed “thousands of pages of discovery,” and Pitaro soon became “concerned about the preparation that had been done for the trial.” Amador had not, for example, interviewed critical witnesses. As a result, the defense team would learn, for the first time at triаl, the content of various witnesses’ testimony. In at least one instance, when a witness was called to the stand, Pitaro “went to get from Mr. Amador the [witness’s] file and found nothing inside.” As Pitaro would later de
But even with Pitaro’s help, Rudin’s trial was replete with alleged errors and professional misconduct on the part of the defense team. Amador, for example, began with an opening statement that had “no cohesive theme.” Over the course of trial, Amador was accused of creating a prejudicial conflict of interest by allegedly negotiating agreements for the literary and media rights to his representation. Rudin,
A jury convicted Rudin on both charges. For her conviction for murder with the use of a deadly weapon, the trial court imposed a sentence of life imprisonment with a possibility of parole after twenty years. For her conviction for unauthorized surreptitious intrusion of privacy by a listening device, the court imposed a one-year sentence, to run concurrently with Rudin’s life sentence. Rudin’s judgment of conviction was entered on September 17, 2001.
On April 1, 2004, the Nevada Supreme Court affirmed both of Rudin’s convictions . on direct appeal. See Rudin v. State,
B. Rudin’s Petitions for Collateral Relief
Around the time that appellate review of Rudin’s judgment of conviction concluded, two statutes of limitation began to run, both relating to her ability to seek collateral review of the errors that she alleged had affected her underlying criminal trial. The first limitations period is defined by state law and requires, except under certain circumstances, that a state-court petition for post-conviction relief be filed within one year of the Nevada Supreme Court issuing its remittitur:
Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or sentence must be filed within 1 year after entry of the judgment of conviction or, if an appeal has been taken from the judgment, within 1 year after the Supreme Court issuesits remittitur. For the purposes of this subsection, good cause for delay exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
Nev.Rev.Stat. § 34.726(1). The second limitations period is defined by AEDPA, and it also establishes a one-year deadline for a state prisoner seeking a federal writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The AEDPA limitations period runs from the latest of four specified dates:
(1) 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or •
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. The AEDPA limitations period may be tolled if a petitioner “properly file[s]” a petition for post-conviction relief in state court; where that occurs, the limitations period will be tolled for the time during which the state-court petition is pending. Id. § 2244(d)(2).
Thus, from the date on which the Nevada Supreme Court issued its remittitur, which was April 27, 2004, Rudin had one year, or until April 27, 2005, to file a petition for post-conviction relief in state court. And from the date on which the deadline passed for seeking a writ of cer-tiorari from the U.S. Supreme Court, which was June 30, 2004, she had one year, or until June 30, 2005, to file an application for a writ of habeas corpus in federal court. If Rudin were “properly” to file her state post-conviction petition, the time for filing an application for federal habeas relief would be statutorily tolled.
With that statutory background in mind, we turn to the series of events that occurred during each of those respective one-year periods in this сase.
1. Attorney Dayvid Figler’s Representation
On April 30, 2004, three days after the Nevada Supreme Court issued its remitti-tur on direct appeal of Rudin’s judgment of conviction, Rudin’s appellate counsel, Craig Creel, moved to withdraw as counsel and asked the trial court to appoint post-conviction counsel. The trial court granted Creel’s motion on June 8, 2004. Rudin, proceeding pro per, filed a similar motion on July 14, 2004, also seeking appointment of post-conviction counsel.
At the November 2004 hearing at which the state court appointed Figler to represent Rudin, Rudin attempted pro per to file with the court a series of papers. In the district court and on appeal, Rudin contends that those papers would have constituted a “properly filed” post-conviction petition had the court accepted them. See 28 U.S.C. § 2244(d)(2). Pursuant to the applicable local rules, however, the court declined to accept them and instead “turned [them] over to Mr. Figler.”
When Rudin’s case was reassigned to another judge on December 29, 2004, 246 days had passed since the Nevada Supreme Court issued its remittitur. Rudin therefore had 119 days left to file a petition for post-conviction relief in state court. With respect to AEDPA, 182 days had passed since that limitations period had begun to run, leaving Rudin with 183 days to file an application for federal habe-as relief. Again, the deadlines for filing those petitions were April 27, 2005, and June 30, 2005, respectively. And although Rudin had once tried to file a petition for relief in state court herself, the post-conviction court rejected that effort because the local rules prohibited Rudin from doing so when she had “counsel of record.”
The record suggests that, after Rudin’s case was reassigned (and perhaps as a result of that reassignment), substantial confusion arose between the parties and the court about whether Rudin had already filed a petition for post-conviction rélief. On January 5, 2005, for example, the state court held a status hearing on Rudin’s “opening brief.” The court’s use of the term “opening brief’ suggested that the parties and the court believed that Rudin’s initial petition for post-conviction
Meanwhile, Rudin became concerned— and we believe rightfully so — that Figler was not adequately representing her in her collateral review proceedings. According to Rudin, at some point in 2005, she requested that Figler provide her with copies of her file. Figler did not immediately respond. Figler visited Rudin only a handful of times that year, but he did not interview the witnesses she identified, and he never informed her that he had requested a series of continuances on the basis of the “complexity” of her case. Fi-gler last visited Rudin in May 2006, which was the first time in almost a year that he had done so.
In November 2005, Rudin began to gather information in support of her soon-to-be-filed motion to substitute counsel. First, she submitted an Inmate Request Form to the prison staff asking for a summary of the attorney visits she had received that past yeаr. In a response dated a few weeks later, the staff informed her that she had received four visits in 2005, occurring on January 4, February 7, February 25, and June 17. In January 2006, after multiple failed attempts to contact Figler, Rudin submitted a second Inmate Request Form notifying prison staff that she had “not been able to call [her] attorney since [December 15, 2005]” and requesting that the staff fix the problem, which she was concerned was “at this facility.” Three weeks later, the prison staff responded, informing Rudin that Figler had a collect call block on his office phone and that Rudin would need to send a letter to Figler requesting that the block be removed. At the same time, Rudin’s friend, who was not in prison, “repeatedly ... requested [that Figler] visit [Rudin]; have the telephone block removed; not postpone [Rudin’s] post conviction brief filing; and send her a copy of the opening brief,” all to no avail.
Figler never filed anything with the state post-conviction court. On April 5, 2006, 511 days after Figler was appointed, Rudin moved to substitute counsel. In her motion, she described Figler’s inadequacies and expressed her “grеa[t] concer[n] that she [was] not receiving adequate representation regarding her post conviction.” At a hearing on July 17, 2006, the court granted her motion and, at the same time, appointed attorney Christopher Oram, who continues to represent Rudin on appeal, to represent her.
2. Attorney Christopher Oram’s Representation
Oram’s representation began on August 17, 2006,
A colloquy between Oram, the post-conviction court, and the State at a status conference on August 22, 2007, demonstrates that, even at that late date, the parties were still confused as to whether а petition for post-conviction relief had actually been filed. Oram initially raised the issue by suggesting that he re-label his most recent filing as a petition for “a writ of habeas corpus” as opposed to a “supplement.”, The post-conviction court agreed and proceeded to find “extraordinary circumstances” to excuse the delay in filing:
MR. ORAM: [M]y fear is, as I look at the statute, that — um—the one year deadline to file, I looked at it and it said that — uh—the court can excuse it, and can delay the process, which I assume was going on while Mr. Figler was going through this. But perhaps I should relabel the petition for writ of habeas corpus. I may need to amend it today, just to say where she’s located, because that’s what the statute requires.
THE COURT: Okay. I may say you should probably do that. Just do that as like a one page sheet, like an errata to your deal.
MR. ORAM: Yes.
THE COURT: And the court will find, as a matter of finding today, that [your] filing of the writ for post-conviction relief is timely, based upon — um—the factthat — uh—Mr. Figler had the case for so many years. I believe it was years.
MR. ORAM: It was two years. Yes, it was two years.
THE COURT: It was two years, аnd filed nothing, even though we kept having status checks. So — um—we’re going to find that it was timely filed.
Um — and it was an extensive trial. Didn’t it take several weeks?
MR. ORAM: Ten weeks.
THE COURT: Ten week trial. So that would be the extraordinary circumstance that we would find would allow the petition for post-conviction relief be filed. That, plus the fact that the first attorney didn’t do anything.
At that point, and for the very first time in two years, the State became aware that no petition had been filed and decided to speak up:
[THE STATE]: I think, Judge, that sets a bad precedent, in light of the fact that we can get multiple attorneys, and every attorney that gets this says, well, he had it too long, he had it too long. We’d like to at least address that, before you make that finding.
The post-conviction court obliged, declining to make a finding until the State had the opportunity to address the issue in further briefing. It noted, however, that “I really think that the court is going to find, not only this court, but the next court, is going to find that there were extraordinary circumstances in this case, which would allow the court to extend the one year deadline.” The State never did brief the timeliness question, nor did it ever move to dismiss Rudin’s petition.
On December 19, 2008, the post-conviction court held a hearing to consider the merits of Rudin’s petition for relief. At that hearing, the court questioned whether “the defense ... startled] out so far behind the starting line of this trial that no matter how much time the [c]ourt gave them during the trial ... it ultimately [was] an unfair trial.” The post-conviction court went on to state,
And there’s two standards for Strickland:[12] One is was counsel effective, and then the second standard is even if counsel wasn’t effective was the evidence so overwhelming ... against the defendant [that] it wouldn’t make any difference who defended her and how prepared they were and how many experts they called because the decision would always be guilty of murder.
In this case I can’t say that that is true. I didn’t try the case, but in reviewing the writ filed by Mr. Oram and reviewing the response by the State, and I had commented on the 22nd of October that the case was full of a cast of characters together with witnesses, and the case had a lot of intrigue and spins and loops, and there was a lot of ulterior motives on pеople who testified.
The experts couldn’t agree on much of anything in this case ás I read the dry record. The proof of guilt was not a slam dunk by any stretch of the imagination for the State, so I can’t say — I cannot say in this case that no matter who had defended her that the verdict would have been the same.
After hearing testimony from defense attorneys Pitaro and Momot, the court granted Rudin’s request for post-conviction relief and ordered her a new trial. The post-conviction court described Ru-
The State appealed, arguing for the first time on appeal that Rudin’s petition was untimely. In its brief, the State confirmed what we think is suggested by the record; that “the prosecution and the judge were under the mistaken impression that an initial petition had been timely filed.”
The Nevada Supreme Court reversed the post-conviction court’s judgment. It concluded that neither of that court’s stated reasons for excusing Rudin’s dеlay “affords a factual or legal basis to find that Rudin’s claims were not reasonably available to be raised in a timely manner.” Rudin sought en banc reconsideration, which the Nevada Supreme Court denied on January 20, 2011. It was only after the Nevada Supreme Court denied en banc reconsideration of Rudin’s state post-conviction appeal that Oram filed an application for habeas relief in federal court.
‡ ‡ ‡ ❖ ❖ sH
On April 25, 2011, Rudin, still represented by Oram, applied for habeas relief in federal court. By that time, almost seven years had passed since the deadline for seeking a writ of certiorari from the U.S. Supreme Court, see 28 U.S.C. § 2244(d)(1)(A), making her application almost six years too late under AEDPA. In her application, Rudin contended that the Nevada Supreme Court erred in finding her state-court petition for post-conviction relief time-barred because either (1) the petition was timely, or (2) the State had waived any argument to the contrary when it failed to make a timeliness argument before taking its appeal. For those reasons, acсording to Rudin, the federal district court should have considered her state-court petition to be “properly filed” and given her the benefit of statutory tolling of the AEDPA limitations period. See 28 U.S.C. § 2244(d)(2). In the alternative, Rudin argued that equitable tolling pursuant to Holland v. Florida,
II. DISCUSSION
We review de novo the question whether a petitioner’s application for federal habeas relief was timely filed. Noble v. Adams,
A. Statutory Tolling
We begin with Rudin’s argument that she is entitled to statutory tolling of the AEDPA limitations period. On this point, Rudin appears to argue that the Nevada Supreme Court erred when it found her state post-conviction petition untimely, and that had it not so erred, her petition would be considered “properly filed” under 28 U.S.C. § 2244(d)(2), enti
While we may not have made the same decision as the Nevada Supreme Court, we are not at liberty to second guess that court’s decision when it was acting on direct appeal of the state post-conviction court’s judgment. The state supreme court concluded that Rudin’s petition was untimely under state law, and “[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2).” Pace v. DiGuglielmo,
B. Equitable Tolling
We turn, therefore, to Rudin’s argument that she is entitled to equitable tolling under Holland v. Florida. A petitioner is entitled to equitable tolling if she can establish that (1) she was pursuing her rights diligently, but (2) some extraordinary circumstance stood in her way. Pace,
In Holland, the Supreme Court held that AEDPA’s limitations period may be tolled for equitable reasons.
To be entitled to equitable tolling of the AEDPA limitations period, Ru-din thus bears the burden to prove that she hаs been pursuing her rights diligently but that extraordinary circumstances made it impossible for her to file her application on time. See Pace,
Between July 1, 2004, the day the AED-PA limitation period began to run, and November 10, 2004, the day that Figler was appointed to represent Rudin, Rudin was not represented by counsel. During that time, Rudin cannot establish that “extraordinary circumstances” existed to equitably toll the AEDPA limitation period. See Roy v. Lamport,
2. November 10, 200k, Through August 22, 2007
On November 10, 2004, Figler was appointed to represent Rudin in her collateral review proceedings.
Rudin was also diligent in pursuing her rights during that time, beginning with her attempt to file pro per a petition for post-conviction relief on November 10, 2004. Over the course of Figler’s representation, Rudin made repeated attempts to contact him, providеd him with witness information relevant to her case, and requested that he provide her with copies of her files so that she could take additional steps on her own behalf. When Figler repeatedly failed to respond, Rudin prepared and filed her own motion to substitute counsel, which had a “brief opening supplement” attached to it. Until she filed that motion, Rudin had done everything short of filing her own “opening brief,” which, as the state court had. already made clear, the local rules prohibited her from doing. We conclude that Rudin was “reasonably diligent” during the period of Figler’s representation, which is all that is required for equitable tolling purposes. See Holland,
Rudin is therefore entitled to equitable tolling of the AEDPA statute of limitations during the time in which Figler was representing her and up until the point at which Oram became aware that Figler had never filed anything on Rudiris behalf.
The State argues that Rudin cannot avail herself of the benefit of equitable tolling during that time because Figler
For all Rudin knew — and, indeed, until August 22, 2007, for all the State knew— Rudin’s state-court petition had already been filed, making her eligible for statutory tolling under § 2244(d)(2). During the period that Figler had represented her, almost every reference to the pending filing was to an “opening” or “supplemental brief,” suggesting that the court had already received her initial petition. Even the State concedes that it believed that to be the case. During the period in which Rudin “lacked a clue” of any need to protect herself, we decline to impute to her knowledge that neither the State nor the court possessed. See Lott v. Mueller,
3. August 23, 2007, Through January 20, 2011
On August 22, 2007, at the status conference in the state post-conviction court, the parties first became aware of the fact that Figler had never filed a post-conviction petition in state court. From that point forward, Rudin was put on notice of the fact that nothing had been “properly filed” in either state or federal court on her behalf. However, immediately upon discovering Figler’s failure to file, the post-conviction court found “extraordi
This finding, coupled with the state’s failure to brief the timeliness question or move to dismiss Rudin’s petition, “affirmatively misled” Rudin into believing that the state court had excused her late filing and that her federal limitations period would be statutorily tolled. See Sossa,
Under Sossa, therefore, the inaccuracy of a state post-conviction court’s extension of time may constitute an “extraordinary circumstance” making it “impossible” to file a petition on time, see Gibbs,
The post-conviction court’s timeliness finding was integrated into a final adjudication on December 31, 2008, when the state post-conviction relief court issued an order granting Rudin’s state habeas petition. Rudin therefore continued to benefit from the post-conviction court’s finding of “extraordinary circumstances” until the Nevada Supreme Court reversed the grant of habeas relief on January 20, 2011.
Following the post-conviction court’s initial finding of extraordinary circumstances, Rudin diligently pursued her then-“properly filed” state petition, and pursued her
To the contrary, once the state post-conviction relief court excused Rudin’s delay and deemed her petition “properly filed,” Rudin remаined entitled to statutory tolling in federal court. See Pace,
* ‡
In sum, we conclude that Rudin has satisfied her burden to show that she is entitled to equitable tolling of the AEDPA limitations period until January 20, 2011, when the extraordinary circumstances making it impossible for her to file her federal petition on time were removed. See Sossa,
III. CONCLUSION
We REVERSE the district court’s dismissal of Rudin’s petition and REMAND for further proceedings consistent with this opinion. For the reasons explained earlier, we DENY the State’s motion to expand the record on appeal.
Notes
. By the time Rudin's trial ended, the court had actually appointed a third attorney, John Momot, to assist with the defense. Rudin,
. Two of the six justices dissented. They concluded that
there is sufficient evidence in the record, without the necessity of post-trial proceedings, to establish that the defense was totally unprepared to try this case and that Amador had a substаntial conflict of interest with his client. This was prejudicial to Rudin, and the result reached was unreliable.
Rudin,
.Rudin had ninety days from the date of the Nevada Supreme Court’s decision, which was issued on April 1, 2004, to petition for a writ of certiorari. Sup.Ct. R. 13(3).
. We assume that the state court was required, under Nevada Rule of Appellate Procedure 46(d)(3)(C), to wait to set a hearing date until after Rudin had filed her pro per motion for appointment of post-conviction counsel. Under that rule, in a post-conviction appeal, an attorney’s motion to withdraw as counsel "shall be accompanied by ... a mo
. The record is not clear as to the reason, if any, that the post-conviction court delayed four months in hearing Rudin’s pro per motion for appointment of post-conviction counsel. Cf. Nev.Rev.Stat. §§ 34.740 (requiring “expeditious judicial examination” of petitions for post-conviction relief); 34.726 (limiting the period for filing a petition to one year). In the district court, Rudin argued in passing that the state court’s four-month delay was “unnecessarily long” and was a part of the "extraordinary circumstances” that gave rise to her filing delay. She does not renew that argument on appeal.
. We take November 10, 2004, not November 24, 2004, as the date on which Figler's representation commenced.
. Rule 3.70 of the Rules of Practice for the Eighth Judicial District Court of the State of Nevada provides that papers “delivered to the clerk of the court by a defendant who has counsel of record will not be filed [but will be] forwarded to that attorney for such consideration as counsel deems appropriate.”
. Judge Bonaventure recused himself as a result of personal biases that he had against Rudin’s previous appellate counsel, Craig Creel. See Matt Pordum, Bonaventure Won’t Hear Rudin Appeal, Las Vegas Sun, Dec. 28, 2004, http://www.lasvegassun.com/news/2004/ dec/28/bonaventure-wont-hear-rudin-appeal/ (" 'My blood boils every time I hear the name Craig Creel.... Whether I look at him or think of him, my blood- boils. I’m getting á headache thinking of him right now.’ ” (quoting Bonaventure, J.)).
. Attached to Petitioner's motion to substitute сounsel was what she called a "brief opening supplement,” presumably to her petition for post-conviction relief. When the post-conviction court ruled on her motion, however, it appears to have construed the filing solely as a motion to substitute counsel, not as a petition for post-conviction relief.
. We consider Figler’s representation to have extended until the date on which the court entered its order substituting counsel, which was August 17, 2006.
. We assume that the post-conviction court’s reference to “extraordinary circumstances” is equivalent to, or was intended to mean, “good cause,” which is the standard to excuse a filing delay under Nevada Revised Statute section 34.726.
12. Strickland v. Washington,
. In Coleman v. Thompson,
To state a claim for ineffective assistance of counsel, a habeas petitioner must show both (1) deficient performance, and (2) stemming from that deficient performance. Strickland,
. We likewise reject Rudin's argument that she can claim the benefit of equitable tolling in state court, thereby entitling her to statutory tolling in federal court. Equitable tolling under Holland v. Florida is a federal doctrine entirely separate from state law. See
. Mere negligence on the part of a prisoner’s post-conviction counsel does not warrant equitable tolling. Holland,
. It is significant that Figler’s representation commenced before June 30, 2005 — the last day of Rudiris AEDPA limitation period. That is so because extraordinary circumstances cannot toll a statute of limitations that has already run.
. Regrettábly, this Court has become familiar with Figler’s repeated abandonment of his habeas clients. See, e.g., Gibbs v. Legrand,
. The State filed a motion in this court to expand the record on appeal to include various state-court documents that it had not, for whatever reason, made a part of the record in the district court. As a general rule, documents not filed with the district court cannot be made part of the record on appeal. See Fed. R.App. P. 10(a) ("[T]he original papers and exhibits filed in the district court; the transcript of proceedings, if any; and a certified copy of the docket entries prepared by the district clerk ... constitute the record on appeal.''); Kirshner v. Uniden Corp. of Am.,
The State offers no compelling reason for its failure to make these documents part of the record in the district court. Ironically, the reasons it offers for doing so are the same reasons to which it objected when the state post-conviction court found that Rudin had established good cause for her filing delay: that "this is not a typical case,” that "Rudin's trial was one of the longest in Nevada history,” and that, overall, the proceedings below were complex.
We do not need the documents that the State seeks to make part of the record on appeal in order to decide this case. Thus, we decline to depart from our general rule. The State's motion to expand the record on appeal is DENIED.
. Contrary to the dissent, that Sossa considered the inaccuracy of a federal magistrate judge’s instructions', rather than a state court judge’s instructions, is immaterial. Sossa does not limit its reasoning to actions by federal forums. See id. at 1235 (reasoning that the state bears responsibility for objecting to extensions of time, lest it "lie in wait ... and only thereafter oppose a petition as untimely”); see also Pliler,
Similarly, that Sossa dealt with the inaccurate extension of a federal limitations period, rather than a state limitations period, is also immaterial. Because the federal limitations period is automatically extended by a "properly filed” state limitations period, 28 U.S.C. § 2244(d)(2), a federal habeas petitioner may be entitled to equitable tolling where, as here, a state court erroneously extends the state limitations period and, by extension, the federal statutory limitations period.
Concurrence Opinion
concurring:
I join the court’s opinion in full. I add only that a contrary result would require “the essentially pointless early filing of federal petitions,” Brooks v. Williams, No. 2:10-cv-00045,
Requiring a protective filing would be particularly pointless in this case. By August 2007, the federal habeas statute of limitations had long since run. Unlike in Pace, where the prisoner could have filed a protective petition during the state post-conviction proceedings but before the federal statute ran, in the present case any protective petition Rudin might have filed after August 2007 would not have protected anything. See, e.g., Urrizaga v. Attorney General for Idaho, No. CV-07-434,
O’SCANNLAIN, Circuit Judge, dissenting:
I joined Judge Murguia’s original opinion for the Court, Rudin v. Myles,
I
Under AEDPA, “equitable tolling is available ‘only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time and the extraordinary circumstances were the cause of [the prisoner’s] untimeliness.’ ” Sossa v. Diaz,
II
The majority asserts that the events of a state court status conference, which took place on August 22, 2007, “affirmatively misled” Rudin with respect to the deadlines for her federal habeas petition, Majority at 1057-58, and therefore holds that Rudin’s failure to file a timely federal petition may be excused. That conclusion, however, cannot be squared with the record or our precedents.
In fact, however, Rudin was under a duty to pursue her rights diligently. See Holland,
In Pace v. DiGuglielmo, the Court instructed that if a state prisoner is faced with uncertainty about whether her state post-conviction petition is timely, she should “fil[e] a ‘protective’ petition in federal court and ask[ ] the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.”
The majority’s bare assertion that Rudin diligently pursued her rights does not make it so. That “Rudin waited only three months after the Nevada Supreme Court denied her relief — from January 20[, 2011] to April 25, 2011 — before filing her federal petition” is completely beside the point. Majority at 1058-59. Indeed, even if the August 22, 2007 conference were an “extraordinary circumstance” that would qualify for equitable tolling purposes, Rudin must still show she acted with reasonable diligence between August 22, 2007 and April 25, 2011. See Pace,
The August 22, 2007 conference did not excuse Rudin from acting, but rather armed her with knowledge that should have spurred her to protect her rights. Rudin did not file anything in federal court until April 25, 2011, over three years and eight months later. “Such a delay does not demonstrate the diligence required for application of equitable tolling.” White v. Martel,
Ill
For the foregoing reasons, I would affirm the judgment of the district court.
. As the majority points out, Rudin is not entitled to equitable tolling between July 1, 2004 — the date the AEDPA limitations period began to run — and November 10, 2004 — the date Figler was appointed. See Majority at 1056. Thus, as of August 23, 2007, Rudin ha'd 232 days to file. her federal petition. When she failed to file by April 11, 2008, the statute of limitations expired.
. The majority conflates the concepts of statutory tolling and equitable tolling. Here, there is no dispute that Rudin is not entitled to statutory tolling. Thus, the majority’s attempt to recast a losing statutory tolling argument in terms of equitable tolling is unpersuasive.
. The majority says that such a ruling, "coupled with the state’s failure to brief the timeliness question or move to dismiss Rudin’s petition, 'affirmatively misled’ Rudin.” Majority at 1057-58 (emphasis added). It is unclear, however, what authority supports the position that the state’s failure to do something can amount to affirmative misleading. The majority cites Sossa but Sossa actually suggests that a state, as an opposing party, has ■ no authority to extend the statutory deadline established by Congress and therefore the state’s actions (or, in this case, inactions) should not influence the petitioner. See Sossa,
For that same reason, the majority is incorrect in relying on Sossa to assert that the events of the August 22, 2007 conference were an extraordinary circumstance under AEDPA. In Sossa, we held that when a prisoner is “affirmatively misled” by a federal magistrate judge regarding AEDPA’s deadlines, the petitioner may be entitled to equitable tolling.
In contrast, the majority here focuses on a state court’s instruction regarding a state habeas petition. Unlike Sossa, neither the parties nor the court discussed the federal petition. Thus, rather than "affirmatively misle[ading]” Rudin in any way as to the AEDPA statute of limitations, if anything the status conference made Rudin aware that her state petition had not been properly filed and notified her that she should file a ■ protective federal petition. See Pace v. DiGuglielmo,
Moreover, the majority does not explain what inaccuracy actually affirmatively misled Rudin. Sossa holds that " ’[i]n order to show that he was affirmatively misled, [a habeas petitioner] need[s] to point to some inaccuracy in the district court’s instructions' to him, not merely to his 'misunderstanding of accurate information.’ ” Sossa,