FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY BERNARD SMITH, JR.,

Petitioner-Appellant,

v.

RON DAVIS,

Respondent-Appellee.

No. 17-15874

D.C. No.

2:15-cv-01785-

JAM-AC

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted En Banc September 24, 2019

San Francisco, California

Filed March 20, 2020

Before: Sidney R. Thomas, Chief Judge, and Ronald M. 

Gould, Marsha S. Berzon, Johnnie B. Rawlinson, Carlos T. 

Bea, Sandra S. Ikuta, Mary H. Murguia, Paul J. Watford, 

Andrew D. Hurwitz, Mark J. Bennett and Ryan D. Nelson, 

Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Berzon
2 SMITH V. DAVIS

SUMMARY*

Habeas Corpus

The en banc court affirmed the district court’s denial of 

California state prisoner Anthony Smith’s habeas corpus 

petition as untimely, in a case in which Smith argued that he 

was entitled to extend the one-year limitations period set 

forth in 28 U.S.C. § 2244(d)(1) by equitable tolling for the 

66 days between the date his conviction became final in the 

state appellate court and the date when his attorney informed 

him of that unsuccessful appeal and provided him with the 

state appellate record. 

The en banc court affirmed because Smith failed to 

exercise reasonable diligence during the 10 months available 

after he received his record from his attorney and before the 

time allowed by the statute of limitations expired.

In view of the historic practice of courts of equity and 

modern Supreme Court precedent governing equitable 

tolling, the en banc court made two related holdings. 

First, for a litigant to demonstrate he has been pursuing 

his rights diligently, and thus satisfies the first element 

required for equitable tolling, he must show that he has been 

reasonably diligent in pursuing his rights not only while an 

impediment to filing caused by an extraordinary 

circumstance existed, but before and after as well, up to the 

time of filing his claim in federal court. In so holding, the 

en banc court rejected the “stop-clock” approach under 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SMITH V. DAVIS 3

which whenever a petitioner is impeded from filing his 

petition by extraordinary circumstances while the time 

period of a statute of limitations is running out, he may add 

the time during which he was so impeded to extend the 

limitations period, regardless whether he was reasonably 

diligent in filing his petition after the impediment was 

removed.

Second, it is only when an extraordinary circumstance 

prevented a petitioner acting with reasonable diligence from 

making a timely filing that equitable tolling may be the 

proper remedy. In evaluating whether an extraordinary 

circumstance stood in a petitioner’s way and prevented 

timely filing, a court is not bound by mechanical rules and 

must decide the issue based on all the circumstances of the 

case before it.

Applying this framework to Smith’s petition, the en banc 

court accepted Smith’s allegations as true and assumed that 

his attorney’s failure to contact him for five months after his 

state appeal was denied was sufficiently egregious so that it 

could qualify as an “extraordinary circumstance” that 

created an impediment to filing under the second required 

element for equitable tolling. The en banc court nevertheless 

concluded that Smith did not exercise the necessary 

diligence to satisfy the first element because when given the 

opportunity to explain how he had used his time diligently 

after receiving his file from his attorney, Smith made no 

allegation or claim in his opposition to the motion to dismiss 

or his supporting declaration that he had acted diligently but 

had not been able to file earlier.

Dissenting, Judge Berzon, joined by Chief Judge 

Thomas and Judges Murguia, Watford, and Hurwitz, wrote 

that the central problem with the majority’s approach 
4 SMITH V. DAVIS

concerns its substitution of its own determination of the time 

needed to file for Congress’s clear prescription that 

petitioners are to be given 365 days to draft and file a federal 

habeas petition.

COUNSEL

David M. Porter (argued), Assistant Federal Defender; 

Heather E. Williams, Federal Defender; Federal Defenders 

of the Eastern District of California, Sacramento, California;

for Petitioner-Appellant.

Justain P. Riley (argued), Deputy Attorney General; Tami 

Krenzin, Supervising Deputy Attorney General; Michael P. 

Farrell, Senior Assistant Attorney General; Xavier Becerra, 

Attorney General; Office of the Attorney General, 

Sacramento, California; for Respondent-Appellee.
SMITH V. DAVIS 5

OPINION

BEA, Circuit Judge:

Anthony Smith is imprisoned in the custody of the 

California Department of Corrections and Rehabilitation 

having been convicted of burglary, robbery, and forcible oral 

copulation. He appeals the district court’s denial of his 

petition for the writ of habeas corpus. The denial was 

ordered solely because Smith’s petition was not timely filed. 

Smith acknowledges he filed his petition more than two 

months after the expiration of the applicable statute of 

limitations, see 28 U.S.C. § 2244(d)(1), but argues he was 

entitled to extend the limitations period by equitable tolling 

for the 66 days between the date his conviction became final 

in the state appellate court and the date when his attorney 

informed him of that unsuccessful appeal and provided him 

the state appellate court record. The district court found 

Smith was not diligent in his use of the 10 months remaining 

in the limitations period after he received the case file from 

his attorney and that the delay in receiving his record had not 

been the cause of his untimely filing. The district court 

refused to apply equitable tolling to toll the statute of 

limitations.

Smith asks us to reverse the district court and to extend 

the period of the statute of limitations by those 66 days. He 

asks us to adopt a flat rule: a “stop-clock” approach to 

equitable tolling so that whenever a petitioner is impeded 

from filing his petition by extraordinary circumstances while 

the time period of a statute of limitations is running out, he 

may simply add the time during which he was so impeded to 

extend the period of the statute of limitations, regardless 

whether he was reasonably diligent in filing his petition after 

the impediment was removed. What Smith requests is an 

application of equitable tolling that is contrary to Supreme 
6 SMITH V. DAVIS

Court precedent and also contrary to traditional principles of 

equity, in which “each case as it arises must be determined 

by its own particular circumstances.” McQuiddy v. Ware, 

87 U.S. (20 Wall.) 14, 19 (1874). The rule he asks us to apply 

is something much more akin to the uniform, forwardlooking actions of a legislature. But, of course, we are not a 

legislature; we are a court. Because, as a court, we must 

follow the precedents that require we employ principles of 

traditional equity and evaluate whether Smith was 

reasonably diligent in filing his habeas petition before we 

equitably toll the statute of limitations, we decline to adopt 

his suggested approach. Therefore, we affirm the district 

court’s order denying Smith’s habeas petition because Smith 

failed to exercise reasonable diligence during the 10 months 

available after he received his record from his attorney and 

before the time allowed by the statute of limitations expired.

I. Background

Smith was convicted in California state court in 1998 of 

one count of residential burglary, two counts of robbery, and 

one count of forcible oral copulation. He was sentenced to 

25-years-to-life. Smith was granted federal habeas relief in 

2010 for the forcible oral copulation conviction, but after a 

retrial he was again convicted of forcible oral copulation and 

then again sentenced to 25-years-to-life in 2012. Smith 

appealed his conviction through the California courts, which 

denied his appeals. His state appeals culminated when the 

California Supreme Court issued a summary denial of his 

petition for review on March 12, 2014. Smith did not seek 

review in the United States Supreme Court, and his 

conviction became final on June 10, 2014, when the time for 

filing a petition for a writ of certiorari expired.

Smith was represented in his California state appeals by 

a court-appointed attorney. After the California Supreme 
SMITH V. DAVIS 7

Court denied Smith’s petition for review in March 2014, 

Smith alleges the next correspondence he had with his 

attorney was a letter received on August 15, 2014, which 

informed Smith that his California state appeal had been 

denied and that the attorney’s representation of Smith was 

complete. Smith’s attorney also returned the appellate record 

to Smith in the same mailing. Smith acknowledges that his 

attorney’s letter was not the first time he learned that his 

appeal had been denied, and that his family had informed 

him of the denial three months earlier, around May 10, 2014. 

After Smith learned that the California Supreme Court had 

denied his appeal, Smith sent his attorney a letter the next 

day, requesting an update from the attorney and the

immediate return of his appellate record so that Smith could 

prepare a federal habeas petition. When Smith did not 

receive a timely response to his letter, he filed a complaint 

with the California State Bar in June 2014. It appears that 

this complaint prompted Smith’s attorney to contact Smith 

and return his appellate record in August 2014.

Appearing pro se, Smith filed his habeas petition in the 

district court for the Eastern District of California on August 

14, 2015, asserting nearly identical claims to those he had 

made to the California Supreme Court. California moved to 

dismiss Smith’s petition as untimely filed. According to the 

State, the one-year statute of limitations allowing for state 

prisoners to file federal habeas petitions had expired on June

10, 2015, one year after Smith’s conviction became final. 

Smith filed an opposition arguing that he was entitled to 

equitable tolling from June 10 to August 15, 2014 and 

claimed the statute of limitations did not expire until August 

15, 2015, the day after his petition was filed. Smith argued 

he was entitled to equitable tolling for that 66-day period 

because he had been abandoned by his attorney, did not have 
8 SMITH V. DAVIS

access to his appellate record, and had been diligent in his 

attempts to contact his attorney to remedy the situation.

The magistrate judge assigned to Smith’s case in the 

district court issued findings and recommended that 

California’s motion to dismiss be granted. The magistrate 

judge noted that even though Smith did not receive his 

appellate record until two months after the time period 

prescribed by the statute of limitations had begun to run, he 

still had ten months thereafter in which to file his habeas 

petition on time. According to the magistrate judge, the 

“petitioner has offered no explanation as to why he was 

unable to file his federal petition during this ten month 

period”; instead it appeared “it was petitioner’s own lack of 

diligence during the ten months after he received the 

appellate record, and not [the attorney’s] delay in forwarding 

the records, that was the cause of petitioner’s untimeliness.” 

While the magistrate judge was “convinced that petitioner 

acted diligently to obtain his appellate record” from his 

attorney, she concluded that “there is no evidence that the 

delayed receipt of the file made timely filing impossible.” 

The district judge adopted the findings and 

recommendations of the magistrate judge and denied the 

petition. Smith appealed.

A three-judge panel affirmed the district court, but we 

granted rehearing en banc to resolve a conflict within our 

cases about the nature of the diligence required for a 

petitioner to be eligible for equitable tolling. See Smith v. 

Davis, 740 Fed. App’x 131 (9th Cir. 2018), reh’g en banc 

granted, 931 F.3d 829 (9th Cir. 2019).

II. Standard of Review

We review de novo the dismissal of a federal habeas 

petition as untimely, including “whether the statute of 
SMITH V. DAVIS 9

limitations should be equitably tolled.” Fue v. Biter, 

842 F.3d 650, 653 (9th Cir. 2016) (en banc) (quoting 

Corjasso v. Ayres, 278 F.3d 874, 877 (9th Cir. 2002)). When, 

as here, the district court has not made factual findings “we 

accept the facts as alleged by the petitioner” for the purpose 

of determining whether, if proven, the allegations are 

sufficient to merit equitable tolling. Id. (alteration and 

internal quotation marks omitted).

III. Discussion

A. AEDPA and Equitable Tolling

The Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”) subjects federal habeas corpus petitions 

filed by state prisoners to a one-year statute of limitations. 

28 U.S.C. § 2244(d)(1). As relevant here, the time provided 

by the statute of limitations begins to run on “the date on 

which the judgment became final by the conclusion of direct 

review or the expiration of the time for seeking such 

review.” Id. § 2244(d)(1)(A).1 The statute does provide that 

1 In other circumstances the limitations period could be restarted on:

(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
10 SMITH V. DAVIS

while “a properly filed application for State post-conviction 

or other collateral review . . . is pending,” the time period of 

the statute of limitations does not run. Id. § 2244(d)(2).2

In addition to this statutory tolling provision, the oneyear statute of limitations is also subject to the doctrine of 

equitable tolling. Holland v. Florida, 560 U.S. 631, 634 

(2010). A petitioner seeking equitable tolling bears the 

burden of establishing two elements: “‘(1) that he has been 

pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way’ and prevented 

timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 

544 U.S. 408, 418 (2005)).

The parties disagree about how these elements of 

equitable tolling should be applied. Smith argues that the 

only diligence required of one seeking equitable tolling is 

diligence in remedying the impediment to filing caused by 

the extraordinary circumstance. He reads Holland’s first 

element, “that he has been pursuing his rights diligently,” to 

require no more than he pursue his rights diligently up to a 

point: the point at which the impediment to filing caused by 

the extraordinary circumstances has been abated. As applied 

to his case, Smith argues that because he was diligent in 

attempting to contact his attorney to obtain his appellate 

record after he learned about the denial of his appeal, it is 

irrelevant whether he used his time diligently after he 

(D) the date on which the factual predicate of the claim 

or claims presented could have been discovered 

through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(B)–(D).

2 Smith did not file a habeas petition or otherwise seek collateral 

review in the state court.
SMITH V. DAVIS 11

received that record, and he is entitled to 66 days of equitable 

tolling so that he may have a full 365 days, free of any 

impediment to filing caused by an extraordinary 

circumstance, in which to file his habeas petition. California, 

arguing on behalf of the warden, takes an opposite position. 

The State argues that because Smith seeks the extraordinary 

remedy of equitable tolling of the statute of limitations, he 

must prove he was diligent throughout the time from when 

the state conviction became final to the filing of the habeas 

petition in federal court. Specifically, here, Smith would 

need to show that he was diligent in using the time available 

to him after he received his file from his attorney until he 

filed his habeas petition. The parties also disagree about 

what it means for an extraordinary circumstance to prevent 

timely filing. Smith argues the relevant question is whether 

the extraordinary circumstance prevented timely filing only 

while the circumstance existed. Applied to his case, he 

argues that his attorney’s failure to return his appellate 

record was an extraordinary circumstance and that he could 

not prepare his habeas petition without this record, thereby 

satisfying the element. California, again, takes the broader 

view and argues the question whether an extraordinary 

circumstance prevented timely filing requires a fact-specific 

analysis to determine whether the extraordinary 

circumstance prevented a petitioner acting with reasonable 

diligence from filing within the one-year period.

Our cases applying the elements of equitable tolling, and 

specifically as it applies to habeas petitions brought under 

AEDPA, have not been particularly clear and point in 

opposite directions. In 2001, a three-judge panel declined to 

apply the stop-clock approach sought by Smith to tolling the 

AEDPA statute of limitations, but when an en banc court 

decided the case on rehearing, that issue was not addressed. 

See Allen v. Lewis, 255 F.3d 798, 801 (9th Cir. 2001), rev’d 
12 SMITH V. DAVIS

en banc, 295 F.3d 1046 (9th Cir. 2002) (finding habeas

petition timely filed even absent tolling). Then, later in 2001, 

in an immigration case heard by an en banc court, we took 

the approach advocated by Smith and held that equitable 

tolling in that case applied in a stop-clock manner so that 

“the days during a tolled period simply are not counted 

against the limitations period,” without evaluating whether 

the petitioner had used his available time diligently. SocopGonzalez v. I.N.S., 272 F.3d 1176, 1195 (9th Cir. 2001) (en 

banc). We chose this method over an alternative which 

would have required us to take a case-specific approach and 

evaluate whether a petitioner exercising ordinary diligence 

“reasonably could have been expected to bring a claim 

within the remainder of the limitations period” after the 

extraordinary circumstances ended. Id. at 1194. We found 

the stop-clock method easier to administer, more in line with 

Supreme Court precedent on equitable tolling, and 

consistent with the policy objectives of statutes of 

limitations. Id. at 1195.

In later cases, however, and especially after the Supreme 

Court decisions in Pace and Holland, habeas petitioners who 

sought to have AEDPA’s statute of limitations equitably 

tolled have been required to demonstrate not only 

extraordinary circumstances that prevented timely filing 

while those circumstances existed but also that the 

petitioners, (1) had been diligent in using the time given to 

them before and after the extraordinary circumstances were 

dispelled, and (2) that the extraordinary circumstances were 

the cause of an untimely filing. See, e.g., Fue, 842 F.3d at 

656–57; Gibbs v. Legrand, 767 F.3d 879, 884–85 (9th Cir. 

2014); Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003); 

Lott v. Mueller, 304 F.3d 918, 924–25 (9th Cir. 2002). Our 

principal effort to combine these holdings failed to provide 

the desired clarity. In Gibbs we declared the applicability of 
SMITH V. DAVIS 13

the stop-clock approach to equitable tolling of the AEDPA 

statute of limitations. 767 F.3d at 892. However, we 

simultaneously acknowledged that “[c]ourts take a flexible, 

fact-specific approach to equitable tolling” and required an 

evaluation of a petitioner’s diligence before, during, and 

after the extraordinary circumstance existed before granting 

relief to address the “causation question.” See id. at 885, 892.

It is because our cases issued in the last two decades on 

the proper application of equitable tolling point in opposite 

directions that we granted rehearing en banc. To determine 

which line of cases controls Smith’s eligibility for equitable 

tolling (and therefore which party is correct), we need look 

no further than the decisions issued by the Supreme Court in 

Pace and Holland. But because it also directs our decision, 

we first consider how and why courts have historically 

provided equitable relief.

B. Traditional Equity Jurisprudence

Equity exists to address specific circumstances and not 

to create blanket, prospective rules or applications. See 

McQuiddy, 87 U.S. (20 Wall.) at 19 (“There is no artificial 

rule on such a subject, but each case as it arises must be 

determined by its own particular circumstances.”). As put in 

Justice Joseph Story’s Commentaries on Equity 

Jurisprudence, because “[i]t is impossible that any code, 

however minute and particular, should embrace or provide 

for the infinite variety of human affairs, or should furnish 

rules applicable to all of them,” equity exists in “every 

rational system of jurisprudence” to address the cases in 

“which the antecedent rules cannot be applied without 

injustice, or to which they cannot be applied at all.” 1 Joseph 

Story, Commentaries on Equity Jurisprudence 6–7 (13th ed. 

1886); see also The Federalist No. 83 (Alexander Hamilton) 

(“[T]he great and primary use of a court of equity is to give 
14 SMITH V. DAVIS

relief in extraordinary cases, which are exceptions to general 

rules.”).

Because equity requires a court to deal with the case 

before it, complete with its unique circumstances and 

characteristics, courts must take a flexible approach in 

applying equitable principles. The Supreme Court has been 

clear in this requirement, stating “exercise of a court’s equity 

powers . . . . must be made on a case-by-case basis.” Baggett 

v. Bullitt, 377 U.S. 360, 375 (1964). And when applying 

equitable tolling to the AEDPA statute of limitations in 

Holland, the Supreme Court stated “[t]he ‘flexibility’ 

inherent in ‘equitable procedure’ enables courts ‘to meet 

new situations [that] demand equitable intervention, and to 

accord all the relief necessary to correct . . . particular 

injustices.’” 560 U.S. at 650 (quoting Hazel-Atlas Glass Co. 

v. Hartford-Empire Co., 322 U.S. 238, 248 (1944)).

But despite the flexibility that equity requires, “courts of 

equity must be governed by rules and precedents no less than 

the courts of law.” Lonchar v. Thomas, 517 U.S. 314, 323 

(1996) (citation omitted). As it applies to equitable tolling, 

the Supreme Court has been clear that one such rule that 

limits a court’s equitable powers is that “a litigant is entitled 

to equitable tolling of a statute of limitations only if the 

litigant establishes two elements: ‘(1) that he has been 

pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented 

timely filing.’” Menominee Indian Tribe of Wis. v. United 

States, 136 S. Ct. 750, 755 (2016) (quoting Holland, 

560 U.S. at 649). The first element, requiring diligence on 

the part of the litigant, flows from the traditional notion that 

“[c]ourts of [e]quity do not sit for the purpose of relieving 

parties, under ordinary circumstances, who refuse to 

exercise a reasonable diligence or discretion.” 1 Joseph 
SMITH V. DAVIS 15

Story, supra, at 226. Put differently, “equity aids the vigilant, 

not those who slumber on their rights.” 1 John Norton 

Pomeroy, A Treatise on Equity Jurisprudence as 

Administered in The United States of America 393 (1881); 

see also Pace, 544 U.S. at 419 (“Equity always refuses to 

interfere where there has been gross laches in the 

prosecution of rights.” (quoting McQuiddy, 87 U.S. 

(20 Wall.) at 19)). The second element comes from the factspecific inquiry equity demands and the flexible remedies 

that it provides. For if an extraordinary circumstance is not 

the cause of a litigant’s untimely filing, then there is nothing 

for equity to address.

C. Congressional Intent and Supreme Court Precedent

The stop-clock method of equitable tolling Smith seeks 

runs counter to the traditional notion that “[c]ourts take a 

flexible, fact-specific approach to equitable tolling.” Gibbs, 

767 F.3d at 885. But he makes two arguments in favor of the 

stop-clock approach. First, he claims that applying the stopclock approach is consistent with the expressed intent of 

Congress. And second, he claims that the Supreme Court has 

already decided that the stop-clock approach applies. We 

disagree with both points and address them in turn.

1. Congressional Intent

In asking us to grant him an additional 66 days to file his 

habeas petition, the core of Smith’s argument is that because 

Congress established a one-year statute of limitations in 

AEDPA, 28 U.S.C. § 2244(d)(1), Congress intended for him 

to have 365 days, free of any impediment to filing caused by 

an extraordinary circumstance, to draft and file his petition 

after his conviction was final. Our dissenting colleagues also 

advance this as their principal disagreement with the result 

we reach today. Smith urges that the stop-clock remedy he 
16 SMITH V. DAVIS

seeks is merely a fulfillment of obvious congressional intent. 

But statutes of limitations are not that simple, and such 

congressional intent is not so obvious.

As the Supreme Court stated in a case relied on heavily 

by the dissent, “[s]tatutes of limitations are primarily 

designed to assure fairness to defendants.” Burnett v. N.Y. 

Cent. R.R. Co., 380 U.S. 424, 428 (1965). The Supreme 

Court has also more recently described statutes of limitations 

in general as serving the “basic policies of . . . repose, 

elimination of stale claims, and certainty about a plaintiff’s 

opportunity for recovery and a defendant’s potential 

liabilities.” Rotella v. Wood, 528 U.S. 549, 555 (2000). And 

more specifically, the Supreme Court has found “[t]he 

AEDPA statute of limitation promotes judicial efficiency 

and conservation of judicial resources, safeguards the 

accuracy of state court judgments by requiring resolution of 

constitutional questions while the record is fresh, and lends 

finality to state court judgments within a reasonable time.” 

Day v. McDonough, 547 U.S. 198, 205–06 (2006) (quoting 

Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000)). At their 

core, “[s]tatutes of limitations require plaintiffs to pursue 

diligent prosecution of known claims,” CTS Corp. v. 

Waldburger, 573 U.S. 1, 8 (2014) (internal quotation marks 

omitted), and “protect defendants against stale or unduly 

delayed claims,” John R. Sand & Gravel Co. v. United 

States, 552 U.S. 130, 133 (2008).

Requiring a petitioner who files after the deadline 

imposed by a statute of limitations has expired to show he 

has been diligently pursuing his rights up until the time he 

did file his petition does not ignore congressional intent—it 

furthers it. The dissent’s contention that the purpose of 

AEDPA’s statute of limitations is solely (or primarily) to 

protect the time available for the petitioner to file is not one 
SMITH V. DAVIS 17

of the purposes for the statute of limitations the Supreme 

Court recognized in Day, see 547 U.S. at 205–06, and 

ignores the fact that “AEDPA seeks to eliminate delays in 

the federal habeas review process,” Holland, 560 U.S. at 

648. As the Supreme Court has held, AEDPA’s goal of 

elimination of delays does not preclude the operation of 

equitable tolling, but it does refute the notion that the 

purpose of the limitations period is to protect petitioners 

alone. In fact, though we can speculate that Congress 

considered the needs of habeas petitioners as a part of its 

calculation before enacting a one-year statute of limitations, 

all we may say for certain is that Congress intended for states 

to have an affirmative defense against habeas petitions filed 

more than one year after a conviction became final. See Day, 

547 U.S. at 205.

The dissent would ignore Supreme Court cases 

describing statutes of limitations as primarily protecting 

defendants—and in the habeas context as ensuring judicial 

efficiency and achieving finality for state judgments within 

a reasonable time—and elevate an ancillary aim of the 

statute of limitations to be its only one. On the other hand, 

requiring reasonable diligence through to the moment of 

filing protects the rights of all parties without unnecessarily 

sacrificing one to the other. Petitioners are able to file habeas 

petitions after the limitations period has expired and still 

have their claims evaluated on the merits—provided they 

were reasonably diligent in using their available time and 

showed that an extraordinary circumstance prevented them 

from filing within the one-year limitations period. At the 

same time, states receive a measure of finality and are not 

required to defend against petitions filed after the deadline 

by petitioners who have failed to pursue reasonably diligent 

prosecution of their claims.
18 SMITH V. DAVIS

Though we think our rule best serves the animating 

purposes of statutes of limitations, we also dispute the notion 

that equitable tolling, practiced consistent with governing 

precedent, could undermine the intent of a statute. This is 

because as the Supreme Court has recognized, Congress 

legislates against the backdrop of the equitable powers of 

courts and knows of the rebuttable presumption in favor of 

equitable tolling for statutes of limitations. See Irwin v. 

Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990). In 

statutes like AEDPA, where Congress has not acted to 

preclude equitable tolling, it intended for equitable tolling to 

apply and to be employed consistent with standard equitable 

concepts and governing precedent. That is what we do today.

Insofar as Smith believes Congress’s inclusion of 

conditions which reset the start of the one-year limitations 

period, or the statutory tolling provision in AEDPA, which 

both work to the petitioner’s benefit, see 28 U.S.C. 

§ 2244(d)(1)(B)–(D), (d)(2), evinces an intent by Congress 

to alter the traditional way equitable tolling applies in 

AEDPA and to make its application more favorable to him, 

he is mistaken. Equitable tolling operates apart from any 

statutory provision. The authority by which courts equitably 

toll statutes of limitations comes not from any statute but 

instead from our exercise of “[t]he judicial Power . . . 

extend[ing] to all Cases, in Law and Equity, arising under 

th[e] Constitution, [and] the Laws of the United States.” U.S. 

Const. Art. III, § 2. When courts apply equitable tolling to a 

statute of limitations, they are exercising that independent 

judicial power, consistent with governing law and precedent. 

This is distinct from any efforts to interpret a statute or to 

effect congressional intent behind statutory language.
SMITH V. DAVIS 19

2. Supreme Court Precedent

Smith’s second argument, also favored by the dissent, 

that the stop-clock approach to equitable tolling is required 

by Supreme Court precedent, fares no better. We find the 

proper application of precedent to favor the flexible, 

circumstance-specific approach we adopt today.

In Pace, the Supreme Court addressed equitable tolling 

for the first time as it related to the AEDPA statute of 

limitations. See 544 U.S. at 418 n.8. At issue was whether 

the statute of limitations was tolled while the petitioner’s 

untimely, and ultimately procedurally barred, petition for 

post-conviction relief was pending in state court. Id. at 410. 

Though the case dealt primarily with whether AEDPA’s 

statutory tolling provision, 28 U.S.C. § 2244(d)(2), applied 

in these circumstances, after it was determined the petitioner 

was ineligible for statutory tolling, his claim for equitable 

tolling was also addressed. See id. at 418. In addressing the 

merits of the equitable tolling claim, the Court stated that to 

be eligible for equitable tolling the petitioner was required to 

show “(1) that he has been pursuing his rights diligently, and 

(2) that some extraordinary circumstance stood in his way.” 

Id. The Court held that even if it assumed the pendency of 

the untimely state court petition “satisfied the extraordinary 

circumstance test,” equitable tolling was nevertheless 

unavailable because the petitioner had not shown “the 

requisite diligence.” Id. To determine whether the petitioner 

“has been pursuing his rights diligently,” the Supreme Court 

evaluated the petitioner’s diligence both before and after the 
20 SMITH V. DAVIS

existence of the “extraordinary circumstance” and found it 

wanting.3 See id. at 418–19.

Pace arose in unique circumstances because the state 

court conviction became final nearly four years before 

AEDPA’s statute of limitations was enacted. However, after 

the time period of AEDPA’s statute of limitations had begun 

to run in 1996, the petitioner waited nearly seven months 

before filing his state court post-conviction relief application 

(the pendency of which was assumed to be an “extraordinary 

circumstance”), and once that was denied, waited an 

additional five months to file for habeas relief in federal 

court. Id. at 419. In rejecting Pace’s arguments that he was 

entitled to equitable tolling, the Supreme Court emphasized 

Pace’s lack of diligence in all time frames, right up to Pace 

filing his federal habeas petition. Id. (“Had petitioner 

advanced his claims within a reasonable time of their 

availability, he would not now be facing any time problem, 

state or federal. And not only did petitioner sit on his rights 

for years before he filed his [state post-conviction relief] 

petition, but he also sat on them for five more months after

3 The Supreme Court’s phrasing of the first element required for 

equitable tolling is telling. The Court required Pace to demonstrate that 

he “has been pursuing his rights diligently”—not that he “pursued,” “had 

pursued,” or “has pursued” his rights diligently. This specific phrasing 

indicates a need for a petitioner to show his diligence continued up 

through the point of filing his habeas petition in federal court. See The

Chicago Manual of Style ¶¶ 5.132, 5.135 (17th ed. 2017). Compare this 

to the second element, which is phrased in the simple past tense—“some 

extraordinary circumstance stood in his way”—and it is clear the 

Supreme Court’s wording is intentional. Coupled with the Court’s 

application of the rule for equitable tolling, which evaluated the 

petitioner’s diligence before and after the extraordinary circumstance, 

and through the date he filed his federal habeas petition, there is no doubt 

that diligence is required through the period up to the actual filing of the 

petition to merit equitable tolling. See Pace, 544 U.S. at 419.
SMITH V. DAVIS 21

his [state] proceedings became final before deciding to seek 

relief in federal court.”) (emphasis in original) (footnote 

omitted).

In addition to laying the foundation for future AEDPA 

equitable tolling decisions, a key aspect of Pace is that the 

Supreme Court actually had an opportunity to adopt the stopclock rule Smith now seeks but refused to do so. Had the 

Supreme Court applied the stop-clock approach, the 

outcome in Pace would have been reversed, and the federal 

petition would have been timely filed, as it was indeed filed 

on the 363rd “untolled” day of the limitations period, under 

the stop-clock approach.4 But the Supreme Court did not 

apply the stop-clock approach and evaluate only Pace’s 

diligence in remedying his extraordinary circumstance. The 

Court evaluated Pace’s diligence in all time periods, 

including those when he was free from impediments to 

preparing and filing his habeas petition that had been caused 

by any extraordinary circumstance. The Court found his 

“lack of diligence precludes equity’s operation.” Id. Bound 

4 Pace pleaded guilty to second degree murder in Pennsylvania state 

court in February 1986, and in September 1992, the Pennsylvania 

Supreme Court denied his appeal. AEDPA was passed on April 24, 1996, 

and the newly imposed statute of limitations began to run on April 25, 

1996. Pace filed a petition for post-conviction relief in the Pennsylvania 

courts on November 27, 1996, which was pending for 974 days, and was 

finally denied by the Pennsylvania Supreme Court on July 29, 1999. Pace 

then filed a habeas petition in federal district court on December 24, 

1999, which was 1337 days after the statute of limitations began to run. 

Subtracting the 974 days the state petition for post-conviction relief was 

pending from the time it took Pace to file a federal habeas petition after 

AEDPA was enacted left potentially 363 “untolled” days had the 

Supreme Court chosen to adopt the stop-clock approach and excuse 

Pace’s lack of diligence. See 544 U.S. at 410–11. As noted, the Court did 

not adopt the stop-clock approach; it noted Pace’s lack of diligence in 

filing and affirmed the denial of habeas as untimely.
22 SMITH V. DAVIS

as we are by the decisions of the Supreme Court, we follow 

this same approach today.

The dissent argues that we misunderstand Pace and that 

despite the Supreme Court’s explicit evaluation of Pace’s 

lack of diligence in preparing and filing his federal habeas 

petition both before and after his state petition was denied, 

such evaluation of his diligence was unnecessary to the 

decision, if it was even considered at all. The dissent believes 

that the Supreme Court put little or no weight on Pace’s lack 

of diligence while the limitations period was expiring, 

including the seven months before he filed his state petition 

for post-conviction relief and the five months following the 

rejection of the state petition. See Dissent at 54 (“Essentially, 

the Court held that laches already barred Pace’s claim when 

AEDPA was enacted, so he was entitled to no additional 

consideration after he was accorded an additional year.”). 

This is a strange way to read a passage in a Supreme Court 

opinion that highlighted this exact lack of diligence. See 

Pace, 544 U.S. at 419 (“[Pace] also sat on [his rights] for five 

more months after his [state] proceedings became final 

before deciding to seek relief in federal court.”) (emphasis 

in original). Further, the dissent’s supposition that laches 

would have barred Pace’s habeas petition (in the preAEDPA regime) simply because it was filed four years after 

his conviction was final finds no support in caselaw. See 

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (“[T]here 

is no statute of limitations governing federal habeas, and the 

only laches recognized is that which affects the State's ability 

to defend against the claims raised on habeas.”) (emphasis 

added); see also Day, 547 U.S. at 215 (Scalia, J., dissenting) 

(“We repeatedly asserted [before AEDPA] that the passage 

of time alone could not extinguish the habeas corpus rights 

of a person subject to unconstitutional incarceration.”). 

Simply put, the dissent’s reading of Pace is too narrow, and 
SMITH V. DAVIS 23

we do not adopt such a limited view of the only Supreme 

Court case in which the Supreme Court conclusively 

determined a habeas petitioner’s eligibility for equitable 

tolling.

It is clear to us that the Court did factor Pace’s lack of 

diligence after the statute of limitations was enacted, 

including his failure to pursue his rights diligently after the 

extraordinary circumstance abated, into its decision to deny 

him equitable tolling—a holding as to which no justice 

dissented. What relative importance this held when 

combined with Pace’s years-long pre-AEDPA delay, and his 

additional seven month delay after the statute was enacted, 

we cannot say with certainty, but we know it was important 

enough for the Court to mention and consider in its opinion. 

But whatever relative weight Pace’s various periods of nondiligence carried, we know for sure that the Supreme Court 

did not limit its diligence analysis, as the dissent would have 

us do, to the question in Socop-Gonzalez, whether Pace had 

been diligent in bringing about the end of his extraordinary 

circumstance. See 272 F.3d at 1196. If it had, its decision 

would have reversed, rather than affirmed, the judgment 

which denied the writ.

The Supreme Court next considered equitable tolling for 

habeas petitions in Holland, where it took an additional step 

that weighs against the application of the stop-clock 

approach here. In Holland, the Court added an explicit 

causation requirement to the rule for equitable tolling 

previously stated in Pace. See Holland, 560 U.S. at 649 

(“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he 

shows ‘(1) that he has been pursuing his rights diligently, 

and (2) that some extraordinary circumstance stood in his 

way’ and prevented timely filing.” (emphasis added) 

(quoting Pace, 544 U.S. at 418)). As we have previously 
24 SMITH V. DAVIS

described it, whether an impediment caused by extraordinary 

circumstances prevented timely filing is a “causation 

question” that requires courts to evaluate a petitioner’s 

diligence in all time periods—before, during, and after the 

existence of an “extraordinary circumstance”—to determine 

whether the extraordinary circumstance actually did prevent 

timely filing. See Gibbs, 767 F.3d at 892. Though the 

causation requirement announced in Holland modified the 

extraordinary circumstance prong of the test, it nevertheless 

speaks to the diligence required by a petitioner seeking 

equitable tolling. This is because the Supreme Court held 

that equitable tolling is not available whenever there is an 

extraordinary circumstance that impaired the litigant for 

some portion of the limitations period. It may apply only 

when an extraordinary circumstance prevented a petitioner 

from filing before the deadline expired. The only way for a 

court to evaluate whether an extraordinary circumstance 

caused the untimely filing is to examine and assess the facts 

of the case to determine whether a petitioner acting with 

reasonable diligence could have filed his claim, despite the

extraordinary circumstance, before the limitations period 

expired. This stands in direct contrast to the position we 

adopted in Socop-Gonzalez. See 272 F.3d at 1194.5

The strongest argument Smith can make against the 

weight of this precedent is based on the earlier case of 

Burnett v. New York Central Railroad Company, 380 U.S. 

424 (1965), which we cited in Socop-Gonzalez when 

5 We also note that, in Holland, as it had before in Pace, the Supreme 

Court evaluated the petitioner’s diligence after the extraordinary 

circumstance was dispelled and did not apply a rigid stop-clock rule, 

though admittedly, this did not impact the outcome of the case. See 

560 U.S. at 653.
SMITH V. DAVIS 25

adopting a stop-clock approach to equitable tolling, see 

272 F.3d at 1195–96.

In Burnett a plaintiff timely filed a Federal Employers’ 

Liability Act (“FELA”) personal injury claim against his 

employer in state court, seeking compensation under the 

federal law. The federal claim was subject to a three-year 

statute of limitations. Ultimately, the state court dismissed 

the claim for improper venue under state law, and the 

plaintiff refiled in federal court eight days later but after the 

statute of limitations had expired. Burnett, 380 U.S. at 424–

25.

Addressing the situation, the Supreme Court equitably 

tolled the statute of limitations and allowed the plaintiff’s 

suit to proceed in federal court. Id. at 434–35. The Supreme 

Court commented on the plaintiff’s diligence in bringing the 

claim in state court and treated that diligence as a 

prerequisite for equitable tolling. See id. at 429 (“Petitioner 

here did not sleep on his rights . . . .”). The Court also noted 

the plaintiff’s diligence in refiling his claim in federal court 

eight days after his state court suit was dismissed, but this 

diligence notwithstanding, the Court was clear that it was 

tolling the limitations period for the entire period the state 

court claim had been pending and not merely for a 

“reasonable time.” Id. at 435–36. This holding allowed the 

plaintiff to use whatever time remained of the limitations 

period when he filed in state court to refile in federal court, 

regardless of his diligence in refiling the claim. The 

concurrence by Justices Douglas and Black was explicit that 

the decision in Burnett to extend the limitations period 

automatically, rather than evaluate the plaintiff’s diligence 

in refiling in federal court, ran counter to “long-established” 

and “familiar” equitable principles. See id. at 437 (Douglas, 

J., concurring). We acknowledge that Burnett, absent 
26 SMITH V. DAVIS

subsequent development by the Supreme Court, would seem 

to direct a stop-clock approach that allows a plaintiff who 

qualifies for equitable tolling through diligence to extend the 

limitations period automatically by the full period of time 

that the extraordinary circumstance existed, but Pace and 

Holland were such developments.

Whatever the Court’s reason in Burnett for veering from 

“long-established” and “familiar” applications of equity, 

modern Supreme Court cases citing Burnett have 

emphasized the diligence of the petitioner in Burnett, not the 

stop-clock application of equitable tolling. See, e.g., Irwin, 

498 U.S. at 96 & n.3 (characterizing Burnett as a case “where 

the claimant has actively pursued his judicial remedies”);

Int’l Union of Elec., Radio & Mach. Workers v. Robbins & 

Myers, Inc., 429 U.S. 229, 238 (1976) (quoting Burnett’s 

statement that “[p]etitioner here did not sleep on his rights”); 

Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 558 (1974) 

(describing Burnett as involving a “suit in a state court 

within the three-year time limitation” and being refiled in 

federal court “[i]mmediately after the dismissal” in state 

court for improper venue). And none of these cases 

permitted equitable tolling where a litigant had not been 

persistent in pursuing his rights diligently. But most 

tellingly, when the Supreme Court explicitly established the 

two required elements of equitable tolling in Pace and 

Holland—diligence and causation—the Court did not apply 

the stop-clock approach, and citations to Burnett were 

nowhere to be found. See Holland, 560 U.S. at 634; Pace, 

544 U.S. at 418. And since Pace was decided, the only 

citation to Burnett by a Supreme Court majority6 was in 

6 Burnett was recently cited in a solo dissent in Rotiske v. Klemm, 

but the citation served to distinguish equitable tolling from the “fraud-
SMITH V. DAVIS 27

Lozano v. Montoya Alvarez, where the Court cited Burnett, 

not for its stop-clock rule, but for the notion that statutes of 

limitations are “designed to protect defendants,” an 

argument counter to the one Smith and the dissent advance 

here. 572 U.S. 1, 14 (2014) (quoting Burnett, 380 U.S. 

at 428).

All of this is to say that any attempt by Smith to claim 

Burnett dictates the outcome of this case and excuses his lack 

of diligence after he received his files from his attorney is 

unavailing. Smith’s argument ignores the fact that, even in 

Burnett, the plaintiff exercised diligence consistent with the 

rule we announce today, and more importantly, it ignores 

recent Supreme Court cases that have rejected the stop-clock 

approach and instead meticulously examined petitioner 

diligence when determining whether equitable tolling was 

warranted.

Smith’s citation to the recent case of Artis v. District of 

Columbia, 138 S. Ct. 594 (2018), likewise does not support 

the outcome he seeks. For there, the Supreme Court was 

asked to decide the scope of the statutory tolling provision 

contained in 28 U.S.C. § 1367, the federal supplemental 

jurisdiction statute, and accordingly, was not asked to decide 

how to apply equitable tolling or determine whether the 

plaintiff had exercised any measure of diligence. See Artis, 

138 S. Ct. at 600–01 (describing the case as “resolv[ing] the 

division of opinion among State Supreme Courts on the 

proper construction of § 1367(d)”).

Artis addressed a narrow question, whether 

section 1367(d)—not the doctrine of equitable tolling—

based discovery rule” and does not provide support to Smith’s arguments 

here. See 140 S. Ct. 355, 363–64 (2019) (Ginsburg, J., dissenting).
28 SMITH V. DAVIS

functioned to suspend state periods of limitations for the 

entire time state claims were pending in federal court, plus 

thirty days, or whether the law provided merely a thirty-day 

grace period for a litigant to refile in state court after a 

federal court declined supplemental jurisdiction over the 

state-law claim. Id. The answer to this question has nothing 

to do with the issue we address today. The Supreme Court’s 

decision that the proper way to read section 1367(d) is to 

suspend the running of the statute of limitations, and not 

merely to grant litigants a 30-day grace period, was based on 

a plain text reading of section 1367(d), not principles of 

equity. See id. at 603–04. However, in rendering its decision, 

the Court noted that it commonly uses the “terms ‘toll’ and 

‘suspend’ interchangeably,” id. at 601–02, and that prior 

decisions of the Court had described equitable tolling as 

“paus[ing] the running of” a statute of limitations, id. at 602 

(quoting CTS Corp. v. Waldburger, 573 U.S. 1, 9 (2014)). It 

is based on these statements that Smith and the dissent argue 

Artis supports the position that Smith is entitled to equitable 

tolling even if he did not use the time available to him 

diligently after he received his appellate record from his 

attorney.

Smith asks us to read the statement in Artis that equitable 

tolling may serve to pause the period of a statute of 

limitations as excusing him from the requirements for 

equitable tolling explicitly described in Pace and Holland. 

Artis does not support such an argument. Artis had almost 

nothing to say about equitable tolling, and what it did say did 

not alter the rule that “a petitioner is entitled to equitable 

tolling only if he shows (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 (internal quotation marks omitted). 

The cases Artis cited for the idea that equitable tolling 
SMITH V. DAVIS 29

pauses, or suspends, a statute of limitations do not suggest 

otherwise and do not support an application of equitable 

tolling in a circumstance where a litigant has not diligently 

pursued his rights before, during, and after the existence of 

an extraordinary circumstance.7

7 Artis characterized CTS Corp. as “describing equitable tolling as 

‘a doctrine that pauses the running of, or ‘tolls’ a statute of limitations.’” 

Artis, 138 S. Ct. 602 (quoting CTS Corp., 573 U.S. at 9). This is true, but 

CTS Corp. is explicit that equitable tolling applies only “when a litigant 

has pursued his rights diligently but some extraordinary circumstance 

prevents him from bringing a timely action.” 573 U.S. at 9 (quoting 

Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)). Artis also quotes 

United States v. Ibarra, which predates Pace and Holland, but states, 

“[p]rinciples of equitable tolling usually dictate that when a time bar has 

been suspended and then begins to run again upon a later event, the time 

remaining on the clock is calculated by subtracting from the full 

limitations period whatever time ran before the clock was stopped.” 

502 U.S. 1, 4, n.2 (1991) (per curiam). Ibarra addressed when the 

government’s 30-day window to appeal district court orders in criminal 

cases began and did not involve an application of equitable tolling. It 

thus provides little guidance on how to determine eligibility for equitable 

tolling, but the opinion cited a Seventh Circuit opinion by Judge Posner, 

Cada v. Baxter Healthcare Corporation, 920 F.2d 446 (7th Cir. 1990), 

as standing for the “principles of equitable tolling.” Ibarra, 502 U.S. at 

4, n.2. Cada is explicit that equitable tolling is available only when the 

plaintiff exercises “all due diligence,” including the diligence required to 

“bring suit within a reasonable time after” an extraordinary circumstance 

ends and that the period of limitations is not tolled automatically. 

920 F.2d at 451, 453; id. at 452 (“We do not think equitable tolling 

should bring about an automatic extension of the statute of limitations 

by the length of the tolling period or any other definite term. It is, after 

all, an equitable doctrine. It gives the plaintiff extra time if he needs it. 

If he doesn’t need it there is no basis for depriving the defendant of the 

protection of the statute of limitations.” (citation omitted)); see also 

Socop-Gonzalez, 272 F.3d at 1194 (citing Cada as rejecting a stop-clock 

approach that ignored a lack of diligence after the removal of the 

extraordinary circumstance that impeded filing).
30 SMITH V. DAVIS

Artis did not involve a determination of whether a 

litigant was eligible for tolling (equitable or otherwise) and 

addressed no more than the mechanical calculation of the 

new litigant-specific limitations deadline, after a court 

makes the determination that the litigant qualifies for tolling. 

See Artis, 138 S. Ct. at 598–99. The case sheds no light on 

the underlying question of which litigants are eligible for 

such extended limitations deadlines. In cases involving 

equitable tolling, Pace and Holland still govern that inquiry. 

At most, the effect of Artis’s observation that equitable 

tolling may serve to “pause[] the running of . . . a statute of 

limitations,” id. at 602, was to confirm that the maximum 

additional time, beyond the period of limitations, available 

to a litigant otherwise eligible for equitable tolling, is equal 

to the amount of time that the extraordinary circumstance 

that impeded timely filing existed. As far as we know, this 

was not in dispute.

D. The Proper Rule of Equitable Tolling of Statutes of 

Limitations

In view of the historic practice of courts of equity and 

modern Supreme Court precedent governing equitable 

tolling, we make two related holdings. First, for a litigant to 

demonstrate “he has been pursuing his rights diligently,” 

Holland, 560 U.S. at 649, and thus satisfies the first element 

required for equitable tolling, he must show that he has been 

reasonably diligent in pursuing his rights not only while an 

impediment to filing caused by an extraordinary 

circumstance existed, but before and after as well, up to the 

time of filing his claim in federal court. This rule is in accord 

with the traditional concept that equity requires diligence 

and is also consistent with recent Supreme Court practice. 

Though we today reject the stop-clock approach we took in 

Socop-Gonzalez for evaluating when a petitioner must be 
SMITH V. DAVIS 31

diligent,8 this does not alter what it means for a petitioner to 

exercise diligence. On that issue the rule remains that “[t]he 

diligence required for equitable tolling purposes is 

‘reasonable diligence,’ not ‘maximum feasible diligence.’” 

Holland, 560 U.S. at 653 (citations omitted). In determining 

whether reasonable diligence was exercised courts shall 

“consider the petitioner’s overall level of care and caution in 

light of his or her particular circumstances,” Doe v. Busby, 

661 F.3d 1001, 1013 (9th Cir. 2011), and be “guided by

‘decisions made in other similar cases . . . with awareness of 

the fact that specific circumstances, often hard to predict in 

advance, could warrant special treatment in an appropriate 

case.’” Fue, 842 F.3d at 654 (quoting Holland, 560 U.S.

at 650). What we make clear is that it is not enough for a 

petitioner seeking an exercise of equitable tolling to attempt 

diligently to remedy his extraordinary circumstances; when 

8 As mentioned previously, Socop-Gonzalez rested its decision to 

apply equitable tolling in a manner that ignored a litigant’s diligence 

after remedying an extraordinary circumstance on three factors: 

(1) congressional intent; (2) Supreme Court precedent; and (3) ease of 

administration. 272 F.3d at 1195. Today we explicitly reject the first two 

rationales and hold that diligence only up to the point of the removal of 

the impediment caused by the extraordinary circumstances is not enough 

to merit equitable tolling. In 2001, we did not have the benefit of the 

Supreme Court’s decisions in Pace and Holland, which undermine the 

continued validity of the first two reasons we gave for adopting the stopclock approach. This leaves just the third rationale: ease of 

administration. Standing alone, whether the stop-clock approach is easier 

to administer than the rule we announce today is debatable but ultimately 

of no consequence. Pace and Holland illustrate that in application of the 

extraordinary remedy of equitable tolling, individual, and perhaps 

painstaking, analysis of the specific case overcomes considerations of 

convenience. If ease of administration is indeed a better policy, it is one 

for Congress, not the courts, to adopt. But we have no doubt that district 

courts will be able to apply equitable tolling consistent with the 

traditional concepts of equity, Supreme Court precedent, and the rule we 

announce today.
32 SMITH V. DAVIS

free from the extraordinary circumstance, he must also be 

diligent in actively pursuing his rights.9

9 Contrary to the belief of the dissent we make no holding “that 

364 days is always too long a period within which to prepare a federal 

habeas petition.” Dissent at 65. Nor do we announce a rule that any time 

long stretches of time pass without a petitioner acting on a habeas 

petition is it necessarily a situation where a petitioner failed to exercise 

reasonable diligence. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 

2001) (finding a petitioner’s wait of 21 months before seeking an update 

on his petition from a state court was an exercise of reasonable 

diligence).

The dissent’s characterization of our court’s application of equitable 

tolling as based on such arbitrary considerations as “the length of each 

chancellor’s foot,” Dissent at 41, not only disserves our judiciary, it 

ignores our safeguard against such arbitrariness: our standard of review 

in habeas cases is de novo. See ante at 8–9. Such characterization is 

particularly inept here where the magistrate judge carefully weighed the 

evidence and fully explained her decision.

We also find the dissent’s criticism that today’s decision provides 

no guidance for future district courts or three-judge panels to decide 

cases involving requests for equitable tolling misplaced. As an initial 

matter, our precedents, Socop-Gonzalez notwithstanding, already require 

courts to go through the general diligence analysis we outline today. See 

Gibbs, 767 F.3d at 892. And as discussed previously, one of the benefits 

of equitable doctrines is that they allow courts to fashion remedies 

tailored to the circumstances of the case, within the bounds of governing 

precedent. Further, the evaluation of diligence is hardly new territory for 

trial courts. For example, in evaluating motions for new criminal trials 

or relief from civil judgments, courts must regularly evaluate whether 

newly discovered evidence could have been discovered earlier with 

reasonable diligence. See Fed. R. Civ. P. 60(b)(2); United States v. 

Harrington, 410 F.3d 598, 601 (9th Cir. 2005). And finally, both our 

approach and the one favored by the dissent, require courts to evaluate 

whether a petitioner, who is imprisoned and usually filing pro se, 

exercised the required diligence. The difference between our rule and the 

dissent’s, as it relates to a court’s evaluation of a petitioner’s diligence, 
SMITH V. DAVIS 33

Second, and relatedly, it is only when an extraordinary 

circumstance prevented a petitioner acting with reasonable 

diligence from making a timely filing that equitable tolling 

may be the proper remedy. This rule aligns with the flexible 

and fact-specific nature of equity and is directed by Supreme 

Court precedent. To be clear, this rule does not impose a 

rigid “impossibility” standard on litigants, and especially not 

on “pro se prisoner litigants—who have already faced an 

unusual obstacle beyond their control during the AEDPA 

limitation period.” Fue, 842 F.3d at 657 (quoting Sossa v. 

Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013)). In evaluating 

whether an “extraordinary circumstance stood in [a 

petitioner’s] way and prevented timely filing,” a court is not 

bound by “mechanical rules” and must decide the issue 

based on all the circumstances of the case before it. Holland, 

560 U.S. at 649–50 (internal quotation marks omitted).

E. Equitable Tolling Applied to Smith’s Petition

Accepting Smith’s allegations as true, and assuming that 

his attorney’s failure to contact him for five months after his 

state appeal was denied10 was sufficiently egregious so that 

it could qualify as an “extraordinary circumstance” that 

created an impediment to filing under the second required

element for equitable tolling, we nevertheless conclude 

Smith has not exercised the necessary diligence to satisfy the 

is that one requires an evaluation of a petitioner’s diligence across the 

whole time involved, and the other conducts the same inquiry but for just 

part of the time.

10 This includes three months after the California Supreme Court 

denied Smith’s appeal but before the decision was finalized, and an 

additional 66 days after the decision was final and the time period of the 

statute of limitations began to run.
34 SMITH V. DAVIS

first element and may not have the statute of limitations 

tolled to excuse his late filing.

Smith’s appeal was denied by the California Supreme 

Court on March 12, 2014 and became final on June 10, 2014. 

According to Smith, he learned from his family that his 

appeal had been denied on May 10, 2014, and he received 

his appellate record from his attorney on August 15, 2014. 

Smith’s habeas petition was filed in the district court on 

August 14, 2014, 364 days after Smith received his appellate 

record and 65 days after the limitations period expired. 

Smith’s habeas petition was a 48-page document consisting 

of 20 pages of facts and background and 28 pages of legal 

analysis and argument. The petition consisted almost 

exclusively of items written previously by Smith’s courtappointed attorney and submitted in briefs to the California 

appellate courts. The facts and background were copied with 

only minor alterations from Smith’s brief to the California 

Court of Appeal.11 And the legal argument section was taken 

nearly verbatim from the legal arguments previously 

submitted by Smith to the California Supreme Court, though 

Smith omitted from his federal habeas petition a challenge 

to jury instructions he had raised to the state supreme court.

In the district court, after California moved to dismiss 

Smith’s petition as untimely, Smith filed an opposition brief 

and supporting declaration. In his opposition papers Smith 

argued that he was diligent in attempting to maintain contact 

with his attorney and in seeking the return of his case file 

after he learned his California Supreme Court appeal had 

11 Smith’s brief to the California Supreme Court is part of the record 

before us, but his brief to the California Court of Appeal is not. However, 

we may take judicial notice of this document and do so. See Trigueros v. 

Adams, 658 F.3d 983, 987 (9th Cir. 2011).
SMITH V. DAVIS 35

been denied. Citing Gibbs, Smith acknowledged that our 

cases have evaluated “[d]iligence after an extraordinary 

circumstance is lifted”12 in making determinations about 

equitable tolling. But Smith alleged no facts, argued no 

circumstances, and made no claim that he had been diligent 

in preparing his habeas petition after he had received his file 

from his attorney. The only diligence with which Smith 

claimed to have acted was in contacting his attorney to 

remedy the extraordinary circumstance that he lacked his 

case file. As we have now held, this was not enough.

The problem with Smith’s request for equitable tolling is 

not simply that he took 364 days after receiving his case file 

to file his habeas petition. We have no trouble imaging a 

circumstance where a petitioner is impeded by extraordinary 

circumstances from working on a habeas petition for two 

months, but after those circumstances are dispelled, uses the 

next 364 days diligently, files his petition, and has the entire 

two months during which the extraordinary circumstances 

existed equitably tolled. What reasonable diligence would 

look like in those circumstances varies based on the specifics 

of the case, but in every instance reasonable diligence 

seemingly requires the petitioner to work on his petition with 

some regularity—as permitted by his circumstances—until

he files it in the district court. The problem with Smith’s 

12 Smith also noted that in Gibbs we stated a lack of diligence after 

an extraordinary circumstance ended was “not alone determinative” in 

deciding eligibility for equitable tolling. See 767 F.3d at 892. But despite 

this statement in Gibbs, Smith was on notice by other statements in Gibbs

that we would consider his diligence after the extraordinary circumstance 

ended as part of our overall assessment to determine whether he was 

entitled to equitable tolling. See id. When responding to the State’s 

motion to dismiss, Smith had the necessary notice and incentives to 

claim he had diligently pursued his rights after he received his case file 

from his attorney, but he did not do so.
36 SMITH V. DAVIS

request for equitable tolling is that when given the 

opportunity to explain how he had used his time diligently 

after receiving his file from his attorney and thus merited 

equitable tolling, Smith made no allegation or claim in his 

opposition to the motion to dismiss or his supporting 

declaration that he had acted diligently but had not been able 

to file earlier.

Nor is the only trouble with Smith’s request for equitable 

tolling the fact that his habeas petition consisted almost 

exclusively of materials that had been prepared and filed in 

state courts years earlier. We agree with the Seventh Circuit 

that when a petitioner acts diligently to prepare a habeas 

petition, it matters not if he recycles arguments previously 

made by counsel to state courts. See Socha v. Boughton, 

763 F.3d 674, 688 (7th Cir. 2014). But again, the petitioner 

must act with diligence in preparing his petition to warrant 

equitable tolling; Smith has not alleged that he was diligent 

in this manner.

In the absence of any claim by Smith that he was diligent 

in preparing his habeas petition after he received his case 

file, we fail to see how Smith exercised reasonable diligence 

and why, if he had, Smith would have been unable to file a 

habeas petition in the district court before the time period of 

the statute of limitations expired on June 10, 2015. The 

district court correctly held Smith had not met the criteria for 

equitable tolling and denied Smith’s habeas petition as 

untimely.

AFFIRMED.
SMITH V. DAVIS 37

BERZON, Circuit Judge, joined by THOMAS, Chief Judge, 

and MURGUIA, WATFORD, and HURWITZ, Circuit 

Judges, dissenting:

Anthony Smith’s state court convictions became final on 

June 10, 2014.1 For the sixty-six days that followed, Smith’s 

former attorney failed to deliver Smith’s appellate record to 

him despite repeated requests. Smith filed his federal 

petition for habeas corpus 364 days after his record arrived.

The Antiterrorism and Effective Death Penalty Act 

(“AEDPA”) contains a statute of limitations of 365 days for 

the filing of a federal petition for habeas corpus challenging 

a state conviction. 28 U.S.C. § 2244(d). Congress could, of 

course, have opted for more time or less. But it determined 

that 365 days is the number of days reasonably required for 

habeas petitioners to prepare their petitions. In doing so, 

Congress required habeas petitioners to exercise a certain 

level of diligence: the diligence required to file within 

365 days.

Holland v. Florida held that Congress intended that the 

doctrine of equitable tolling apply to this 365-day limitations 

period. 560 U.S. 631, 645 (2010). To obtain equitable 

tolling, a habeas 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.” Id. at 649 (quoting Pace v. DiGuglielmo, 

544 U.S. 408, 418 (2005)). The majority today holds that 

under this standard, if an extraordinary circumstance existed 

for a part (or all) of the 365 days Congress prescribed as the 

period available for preparing a federal habeas petition, the 

1 Smith was convicted of one count of residential burglary, two 

counts of robbery, and one count of forcible oral copulation.
38 SMITH V. DAVIS

petitioner may have less than 365 days to complete the 

petition, based on a free-floating judicial determination of

whether, notwithstanding the impediment, the petitioner was 

sufficiently diligent during the less-than-365 day period 

available to him.2

The central problem with the majority’s approach 

concerns its substitution of its own determination of the time 

needed to file for Congress’s clear prescription that 

petitioners are to be given 365 days to draft and file a federal 

habeas petition. In the majority’s view, if equitable tolling is 

invoked, no deference is owed to Congress’s determination 

of the amount of time reasonably required to prepare a 

petition.3 For the majority, “the judicial Power” furnishes 

authority to impose, on an ad hoc basis, individual judges’ 

own views as to the time it should take to prepare and file a 

habeas petition. Maj. Op. at 18 (citing U.S. Const. Art. III, 

§ 2).

In the absence of a statute of limitations, of course, 

judges have no choice but to draw discretionary lines as to 

when a particular claim should be time-barred.4 But where a 

2 The majority assumes that Smith’s attorney’s wrongful 

withholding of his records constituted an extraordinary circumstance, 

and so we do as well. Majority Opinion (“Maj. Op.”) at 33.

3 The majority views the congressionally established limitations 

period as a one-way ratchet where equitable tolling is at issue, such that 

judges can provide less total time than the statutory limitations period 

once the time covered by the extraordinary circumstance is subtracted 

but not more. See Maj. Op. at 30. On this view, the congressional 

determination of the time needed to file merits deference when equitable 

relief is to be denied but not when it is to be granted. We are not told 

why that should be the case.

4 That is how the laches doctrine operates. See, e.g., Int’l Tel. & Tel. 

Corp. v. Gen. Tel. & Elecs. Corp., 518 F.2d 913, 926 (9th Cir. 1975).
SMITH V. DAVIS 39

legislature has determined the time it should reasonably take 

to file an initial pleading, there is no need for such ad hoc, 

inevitably inconsistent, decision-making, and so no excuse 

for it. Here, Congress has spoken—the period of time a 

petitioner may devote to preparing a federal habeas petition 

is one year, or 365 days. As one of our colleagues put it some 

time ago with regard to the issue before us, “[a] year is a year 

is a year.” Lott v. Mueller, 304 F.3d 918, 927 (9th Cir. 2002) 

(McKeown, J., concurring). The majority’s insistence to the 

contrary notwithstanding, we are bound to respect 

Congress’s policy judgment to the degree that we can even 

when applying an equitable doctrine.

This fundamental precept was at the core of this Court’s 

carefully considered en banc opinion in Socop-Gonzalez v. 

I.N.S., 272 F.3d 1176 (9th Cir. 2001). There, we rejected an 

interpretation of equitable tolling’s diligence requirement 

which would have empowered judges to deny equitable 

relief whenever they believed that a claimant reasonably 

could have filed faster—that is, the version of equitable 

tolling the majority now enthusiastically adopts. Id. at 1194–

95. Socop-Gonzalez held instead that where a petitioner is 

prevented from timely filing because an extraordinary 

circumstance stood in his way for part of the limitations 

period and is otherwise eligible for equitable tolling, he is 

afforded the time he lost during the extraordinary 

circumstance. Id. at 1195–96. That is, the extraordinary 

circumstance “stops the clock until the occurrence of a later 

event that permits the statute to resume running.”5

 Id. 

5 As I discuss later, the Supreme Court has recently explained that 

this understanding of what “tolling” means comports with both the 

ordinary legal meaning of the word of the word “tolling” and its use in 

the equitable tolling context. Artis v. District of Columbia, 138 S. Ct. 

594, 601–02 (2018).
40 SMITH V. DAVIS

at 1195. The stop-clock approach to equitable tolling, as we 

said in Socop-Gonzalez, is more respectful of congressional 

intent, more compatible with the common understanding of 

“tolling” and with Supreme Court precedent, and more 

sensitive to the realities of judicial administration than one 

which depends on the judge’s “subjective view of how much 

time a plaintiff reasonably needed to file suit.” Id. at 1195–

96.

After Socop-Gonzalez, some opinions of this court 

muddled Socop-Gonzalez’s clarity by focusing on whether a 

petitioner could have filed faster than he did after an 

extraordinary circumstance had abated in deciding whether 

a statute of limitations was equitably tolled. See Gibbs v. 

Legrand, 767 F.3d 879, 890–91 (9th Cir. 2014). Gibbs noted 

the tension between examining a petitioner’s postextraordinary-circumstance diligence in the abstract and 

Socop-Gonzalez’s teaching that “courts should not take it 

upon themselves to decide how much time a claimant needs 

to file a federal case.” Id. at 891–92. Attempting to reconcile 

these two strains, Gibbs explained that equitable tolling’s 

diligence requirement ensures that the allegedly 

extraordinary circumstance actually prevented timely 

filing—that is, helps establish causation—but does not invite 

judges to substitute a judicial determination of the time it 

should take to file for a legislative one. Id. at 892.

Starting anew and purporting to return to “principles of 

traditional equity,” the majority opinion overrules SocopGonzalez and holds that equitable tolling may be denied 

whenever a judge concludes—on an entirely ad hoc basis—

that a claimant reasonably could have filed his lawsuit faster 

than he did once the extraordinary circumstance was 

removed. Maj. Op. at 6. The majority’s analysis—and its 

excuse for overruling Socop-Gonzalez—rests in large part 
SMITH V. DAVIS 41

on its limited understanding of equity’s history, portraying 

that history as establishing little more than the proposition 

that equity is flexible and fact-specific. That proposition is 

accurate, as far as it goes. But the majority’s version of 

“traditional equity” is incomplete, disregarding a strong and 

competing development in American equity jurisprudence: 

the effort to restrain the discretion courts of equity once 

wielded and to roundly reject a view in which equity depends 

on “the length of each chancellor’s foot.” Lonchar v. 

Thomas, 517 U.S. 314, 323 (1996) (citing 1 J. Story, 

Commentaries on Equity Jurisprudence 16 (13th ed. 1886)). 

With regard to equitable tolling in particular, that restraint 

has been effectuated in large part through respect for 

legislative determinations of the total period of time a 

plaintiff or petitioner should have to prepare initial 

pleadings. By brushing aside any need to incorporate that 

legislative determination into its equitable tolling analysis, 

and by substituting a pure chancellor’s-foot approach to 

determining whether the plaintiff or petitioner worked 

quickly enough, the majority flaunts the understanding of 

equity jurisprudence that has developed in this country since 

its founding.

Incorporating its one-sided understanding of the place of 

judicial discretion in American equity jurisprudence, the 

majority opinion goes on to misapply or disregard the three 

considerations on which Socop-Gonzalez rested its stopclock approach—congressional intent, Supreme Court 

precedent, and administrability. As to Supreme Court 

precedent in particular, the majority insists that that 

precedent has fundamentally changed since SocopGonzalez. It decidedly has not.

At the end of its opinion, the majority applies its new 

non-standard to the facts of this case. In doing so, the 
42 SMITH V. DAVIS

majority makes clear that its talk of “the fact-specific inquiry 

equity demands” serves largely to obfuscate an approach that 

plucks from the air—or measures by the chancellor’s foot—

the conclusion that, despite a congressionally-enacted 365-

day limitations period, 364 days is too long a period within 

which to prepare a habeas petition. With Socop-Gonzalez 

abandoned, such arbitrary judgments, disregarding both the 

legislative judgment about the total time period that should 

be available to file a lawsuit and the facts of the particular 

case, will come to predominate applications of equitable 

tolling.

I. American Equity Jurisprudence and Judicial Restraint

The majority begins its analysis with a discussion of 

“Traditional Equity Jurisprudence,” purporting to undertake 

a historical analysis. Maj. Op. at 13–15. I therefore begin as 

well with some history concerning equity jurisprudence, but 

with an emphasis absent from the majority’s approach—the 

care taken in this country to ensure that judicial exercise of 

its equitable authority comfortably coexists with closely 

related legislative enactments. This discussion will prove 

helpful, I hope, in explaining why the majority’s paean to 

principles of traditional equity offers no reason to abandon 

Socop-Gonzalez’s well-considered en banc holding.

Equitable tolling dates from an era in English history 

when the separation of legislative and judicial power was 

incomplete. Until the Glorious Revolution of 1688, the 

Crown “had pretensions to independent legislative 

authority,” and the authority of English judges derived from 

their status as agents of the Crown. John F. Manning, 

Textualism and the Equity of the Statute, 101 Colum. L. Rev. 

1, 36–37 (2001). Such judges would not have had any sense 

that their application of principles of equity might “usurp[] 

the responsibilities of a different branch” of government. Id. 
SMITH V. DAVIS 43

at 42–43, 53; see also McQuiggin v. Perkins, 569 U.S. 383, 

409–10 (2013) (Scalia, J., dissenting).

In the American system, by contrast, fears of judicial 

usurpation of legislative authority have driven equity 

jurisprudence from the first. During the debates over the 

Constitution’s ratification, prominent anti-federalists 

objected to Article III’s extension of the judicial power to 

cases in equity on precisely such grounds. “It is a very 

dangerous thing to vest in the same judge power to decide 

on the law, and also general powers in equity; for if the law 

restrain him, he is only to step into his shoes of equity, and 

give what judgment his reason or opinion may dictate.” 

Letters from the Federal Farmer No. III (Oct. 10, 1787), in 2 

The Complete Anti-Federalist 234, 244 (H. Storing ed. 

1981). In particular, the anti-federalists worried that the 

grant of powers in equity would enable judges to avoid 

“being confined to the words or letter” of the Constitution or 

of legislative enactments. Brutus No. XI (Jan. 31, 1788), in 

id. at 417, 419.

Those who favored ratification of the Constitution 

shared these concerns to some extent. They responded to 

critiques of federal equity jurisdiction by emphasizing that 

Article III judges would be “bound down by strict rules and 

precedents, which serve to define and point out their duty in 

every case that comes before them.” The Federalist No. 78 

(Alexander Hamilton). “Although the purpose of a court of 

equity was ‘to give relief in extraordinary cases, which are 

exceptions to general rules,’ ‘the principles by which that 

relief is governed are now reduced to a regular system.’” 

Trump v. Hawaii, 138 S. Ct. 2392, 2426 (2018) (Thomas, J., 

concurring) (quoting The Federalist No. 83 (Alexander 

Hamilton)).
44 SMITH V. DAVIS

After the ratification of the Constitution—with Article 

III’s grant of jurisdiction over “all Cases, in Law and 

Equity,” U.S. Const. Art. III, § 2—concerns remained that 

judges would exercise their powers in equity to undermine 

legislative and executive authority. Alarmed at (what he saw 

as) a tendency to treat equity “as a source of nearly 

unbounded judicial discretion,” Justice Joseph Story—

quoted by the majority several times, but without 

acknowledgement of his disquiet about the exercise of 

unbridled judicial power in the guise of equity 

jurisprudence—devoted himself to developing equity 

jurisprudence into a “science.” Gary L. McDowell, Equity 

and the Constitution 74–76 (1982). Justice Story’s purpose 

in doing so was to assure that the discretion equity confers 

would be used “not to act arbitrarily, according to men’s 

wills and private affections” but would rather “be governed 

by the rules of law and equity, which are not to oppose, but 

each in its turn to be subservient to the other.” J. Story, 1 

Commentaries on Equity Jurisprudence § 13 (14th ed. 

1918).

Attention to congressional intent proved critical to the 

effort in this country to restrain the exercise of powers in 

equity and thereby to guard against judicial usurpation of the 

coordinate branches of government. So, although Article III 

endows the judiciary with equity jurisdiction, American 

courts have (until now) never viewed equitable relief as 

purely a matter of judicial discretion, created anew for each 

case and each circumstance. Rather, federal courts have 

avoided the separation-of-powers problems that might 

otherwise be posed by the broad and idiosyncratic powers 

English courts of equity once wielded by recognizing that 

legislatures understand that they act against the backdrop of 

existing law, including equitable principles. Concomitantly, 

judges exercising their equitable authority endeavor to 
SMITH V. DAVIS 45

incorporate legislative enactments to the degree consistent 

with equitable doctrines. Given that dual dynamic, whether 

equitable relief is appropriate in a particular instance 

necessarily incorporates considerations of legislative intent.

In the famous case of Riggs v. Palmer, for example, a 

statute governing wills was interpreted to incorporate the 

equitable doctrine of unclean hands on the ground that the 

legislature intended for the doctrine to apply, because the 

legislature could not have meant to allow murderers to 

inherit the estates of those they murdered. 115 N.Y. 506, 

510–12 (1889). Similarly, the Supreme Court has repeatedly 

declared that whether to apply equitable tolling is 

“fundamentally a question of statutory intent.” Lozano v. 

Montoya Alvarez, 572 U.S. 1, 10 (2014). It was on this basis 

that Holland held that Congress intended AEDPA’s statute 

of limitations to be equitably tolled in appropriate 

circumstances. 560 U.S. at 645–46; see also McQuiggin, 

569 U.S. at 398 n.3; id. at 409–10 (Scalia, J., dissenting).

If a statute of limitations has been adopted, legislative 

intent determines not only whether equitable tolling is 

available, but also, if it is available, how it is to be applied. 

Statutes of limitation reflect policy judgments as to the 

length of time within which plaintiffs or petitioners should 

reasonably be expected to file. To take one early English 

example, a statute codified a common law limitations period 

based on “a reasonable time” that it would take a party, 

“wheresoever he dwelt in England,” to reach the court of 

justice “wheresoever” it sat. Edward Coke, The Second Part 

of the Institutes of the Laws of England 567 (1642).

Equity jurisprudence has long been sensitive to such 

legislative determinations of the time it should take a 

claimant to file. As early as 1767, English courts recognized:
46 SMITH V. DAVIS

Expedit reipublicae ut sin finis litum [it is in 

the public interest that lawsuits come to an 

end] is a maxim that has prevailed in this 

court in all times without the help of an act of 

Parliament. But as the court has no 

legislative authority, it could not properly 

define the time of bar by a positive rule to an 

hour, a minute, or a year. It was governed by 

circumstances. But as often as Parliament had 

limited the time of actions or remedies to a 

certain period of legal proceedings, the Court 

of Chancery adopted that rule, and applied it 

to similar cases in equity.

J. Story, 3 Commentaries on Equity Jurisprudence § 1972 

n.2 (14th ed. 1918) (quoting Smith v. Clay, Ambl. R. 645 

(1767)) (emphasis added). To put the same point another 

way: In the absence of a statute of limitations, courts engage 

in a free-wheeling, independent assessment of how much 

time a claimant reasonably should take to pursue his claim, 

and how much delay should bar relief.6 But once the 

legislature has made a policy determination as to the precise 

amount of time a claimant reasonably should have to file 

under ordinary circumstances, that policy determination sets 

a baseline for equity’s operation. So, where a limitations 

period has been fixed by statute, courts of equity have acted 

“positively in obedience to such statute,” 2 J. Story, 

6 “Equity, when there is no statute of limitations applicable to suits, 

fashions its own time limitations through laches.” Int’l Tel. & Tel. Corp., 

518 F.2d at 926. But even in that circumstance, courts usually shy away 

from making their own policy judgments as to the time it should take to 

file: “Although analogous statutes do not necessarily control, equity will 

look to the statute of limitations relating to actions at law of like character 

and usually act or refuse to act in comity with such statutes.” Id. (citation 

omitted).
SMITH V. DAVIS 47

Commentaries on Equity Jurisprudence § 705 (14th ed. 

1918).

Against this long tradition of restraining equitable 

discretion out of respect for the separation of powers, the 

majority relies on “[t]he judicial Power” alone for the 

proposition that its application of equitable principles need 

not attend to congressional intent. Maj. Op. at 18 (citing U.S. 

Const. Art. III, § 2). Once equitable tolling is invoked, the 

majority insists, judges are free to determine for themselves, 

in the name of equity, how long a filing should take to 

prepare, entirely disregarding the period of time chosen by 

Congress in the course of determining how long the 

functional limitations period should be. Id.

The fundamental problem with the majority’s bald 

invocation of “[t]he judicial Power” is that it proves the antifederalists’ original point. Maj. Op. at 18 (citing U.S. Const. 

Art. III, § 2). Equitable tolling’s place in the American 

system has been justified on the assumption that Congress 

acts against a stable backdrop of equity jurisprudence and 

common law. That assumption makes sense only if the 

background doctrines Congress assumes to apply are 

effectuated so that they coexist with rather than flaunt 

legislative determinations. In the equitable tolling context, 

that coexistence requires respect for the filing periods 

Congress has deemed reasonable. By instead invoking the 

judicial power as a source of raw authority to declare, on a 

blank slate, how much time a “diligent” habeas petitioner 

needs to file a federal habeas petition, the majority interprets 

Article III to be the very judicial supremacy provision its 

opponents feared.
48 SMITH V. DAVIS

II. AEDPA and Congressional Intent

Consistently with the applicable principles of equity, 

Socop-Gonzalez invoked congressional intent as one of three 

considerations counseling in favor of the “stop-clock” rule. 

Pausing the limitations period, rather than replacing it with 

one invented by judges, avoids the separation-of-powers 

problem posed when a court “usurps congressional authority 

. . . [by] rewrit[ing] the statute of limitations” and 

“substituting its own subjective view of how much time a 

plaintiff reasonably needed to file suit.” 272 F.3d at 1196. 

By reversing that well-considered holding, the majority 

institutes a new regime in this Circuit—a regime which 

sanctions the very judicial usurpation of congressional 

authority we warned against in Socop-Gonzalez.

Congress made a considered judgment in AEDPA that 

365 days is the period of time a prisoner should have to 

prepare and file a habeas petition. As Congress intended 

AEDPA’s limitations period to be subject to equitable 

tolling, Holland, 560 U.S. at 645, it necessarily set the length 

of the limitations period with the understanding that, when 

extraordinary circumstances arise, a longer period is 

permitted for filing. How much longer? As we explained in 

Socop-Gonzalez, under the stop-clock approach to equitable 

tolling, when an extraordinary circumstance prevents a 

claimant from timely filing, the claimant receives the full 

time Congress determined he may take to file—365 days—

but not more. The statute of limitations resumes running for 

any time remaining in it after the extraordinary circumstance 

that precluded filing has ended.7 At the same time, the 

7 I note that the stop-clock rule provides the rationale absent from 

the majority’s approach, see n.3, supra, for ending the limitations period 

on a day certain even when there is equitable tolling. Here, the 
SMITH V. DAVIS 49

diligence requirement ensures that the claimed extraordinary 

circumstance actually denied the claimant the full time 

Congress intended he have to file, such that equity offers 

only relief, not a windfall. See Doe v. Busby, 661 F.3d, 1001, 

1012–13 (9th Cir. 2011); Roy v. Lampert, 465 F.3d 964, 973 

(9th Cir. 2006); Spitsyn v. Moore, 345 F.3d 796, 802 (9th 

Cir. 2003); Valverde v. Stinson, 224 F.3d 129, 134 (9th Cir. 

2000); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). 

Under the majority’s approach, in contrast, the congressional 

determination that 365 days is to be allowed is ignored, and 

one judge—or three, or eleven—may decide for themselves 

how much time a plaintiff or petitioner should have to put 

together an initial pleading.

The majority avoids grappling with the focus on 

congressional intent underlying Socop-Gonzalez in part by 

insisting that statutes of limitation are generally seen as 

protecting the rights of defendants, not plaintiffs. Maj. Op. 

at 16–17. The congressional determination whether to 

impose a statutory limitations period surely does turn largely 

on the perceived strength of defendants’ interests in repose. 

But the question of how long a statute of limitations should 

extraordinary circumstance existed on the day the limitations period 

began running, so Smith would have 365 days, not more, from the end 

of the extraordinary circumstance within which to file. And if, for 

example, Smith’s extraordinary circumstance—say, a debilitating 

illness—had not arisen until midway through the limitations period, he 

still would have had, under the stop-clock approach, the number of days 

left in the limitations period after his recovery, not more, within which 

to file his petition.
50 SMITH V. DAVIS

be necessarily includes the consideration of how much time 

a plaintiff should have to file.8

In sum, the majority follows Holland, as it must, as to 

whether equitable tolling is available. But it does so 

begrudgingly, resisting Holland’s recognition that equitable 

tolling is available under AEDPA because it is fully 

consistent with, not at odds with, congressional intent. 

Instead of using the congressional determination of the 

applicable limitations period—a total of 365 days—the 

majority proclaims that once equitable tolling is invoked, 

“[t]he judicial Power” takes over, empowering judges to 

second-guess Congress’s judgment of the time claimants 

should be given to file. Maj. Op. at 18 (citing U.S. Const. 

Art. III, § 2). I would reinstate Socop-Gonzalez’s preference 

for respecting rather than ignoring Congress’s determination 

of the number of days available to prepare and file a lawsuit 

by stopping the clock for the period of the extraordinary 

circumstance.

III. Supreme Court Precedent

Aside from its expansive invocation of judicial power, 

the majority’s argument for abandoning Socop-Gonzalez 

rests on the assertion that the Supreme Court’s decisions in 

8 The majority extensively quotes cases recognizing that the 

legislative decision to impose a statute of limitations reflects a policy 

judgment that defendants should be protected against claims of a certain 

age. Maj. Op. at 16. That recognition is correct. But the majority does 

not grapple with a basic point: if Congress were really exclusively 

concerned with protecting defendants, every limitations period would be 

extremely short. That is not the case. Congress determined, for example, 

that habeas petitioners should have 365 days to prepare and file their 

petitions, not ten or thirty or ninety or one hundred eighty days, all 

periods that would be more defendant protective. That determination is 

the legislative judgment that the majority refuses to respect.
SMITH V. DAVIS 51

Pace and Holland overturned (sub silentio) the Supreme 

Court cases Socop-Gonzalez relied upon as a basis for 

adopting the stop-clock rule for equitable tolling. The 

majority does not explicitly say that these cases overrule 

Socop-Gonzalez, only that they “undermine” its “continued 

validity.” Maj. Op. at 31 n.8. And the majority is not clear as 

to whether the rule it extracts from these cases controls only 

in “future AEDPA equitable tolling decisions,” or whether it 

sweeps more broadly. Maj. Op. at 21 (emphasis added). 

Either way, Pace and Holland are perfectly compatible with 

Socop-Gonzalez, and with a key Supreme Court case postdating Pace and Holland—Artis v. District of Columbia, 

138 S. Ct. 594 (2018)—which the majority seeks to sweep 

aside.

In establishing the stop-clock standard, Socop-Gonzalez 

relied principally on Burnett v. New York Central Railroad 

Company, 380 U.S. 424 (1965), and American Pipe & 

Construction Company v. Utah, 414 U.S. 538 (1974). In 

Burnett, the plaintiff timely filed a Federal Employers’ 

Liability Act claim in state court; the claim was dismissed 

for improper venue. The plaintiff refiled in federal court 

eight days later, but the three-year statute of limitations had 

by then expired. 380 U.S. at 424–25. The Supreme Court 

held that the limitations period “was tolled during the 

pendency of the state action,” and that the plaintiff could 

have taken the full time remaining under the tolled statute 

when the state court dismissal became final—the limitations 

period minus the time the state court suit was pending—to 

refile. Id. at 434–35.

American Pipe rested on a similar understanding of 

tolling. 414 U.S. at 541, 561. The Court there held that the 

institution of a class action suspends the running of the 

limitations period for individual class members’ claims until 
52 SMITH V. DAVIS

the suit is stripped of its class-action character. Id. at 561. 

Subtracting the tolled period from the time since the original 

statute of limitations had been running, the Court concluded 

that individual class members had eleven days remaining 

within which to file at the time that the tolled period ended: 

“The class suit brought by Utah was filed with 11 days yet 

to run in the [limitations] period . . . , and the intervenors 

thus had 11 days after the entry of the order denying them 

participation in the suit as class members in which to move 

for permission to intervene.” Id. Because the plaintiffs filed 

within eight days of the class action order, their individual 

claims were not time-barred—that is, they could have taken 

the full eleven days they had to file, regardless of any judge’s 

subjective views as to whether they really needed all eleven 

days. See id.

The majority recognizes that Burnett “would seem to 

direct [the] stop-clock approach” of Socop-Gonzalez. Maj. 

Op. at 25–26. (American Pipe is barely discussed. Maj. Op. 

at 26.) But, the majority asserts, “subsequent 

developments”—namely, Pace and Holland—have silently 

abrogated Burnett. Id.

Equitable tolling’s diligence requirement was not 

elaborated upon in the Court’s opinion in Burnett; given the 

speed with which the plaintiff refiled, diligence was not a 

live issue. The fact that diligence was not at issue in Burnett 

is no reason to assume that the diligence requirement is in 

any tension with the stop-clock principle. In fact, SocopGonzalez recognized and applied the Ninth Circuit’s 

longstanding diligence requirement. “The question is 

whether, despite due diligence, Socop was prevented during 

this period [the period for which equitable tolling is sought] 

by circumstances beyond his control and going beyond 

‘excusable neglect,’ from discovering that his order of 
SMITH V. DAVIS 53

deportation had become effective—the vital information he 

needed in order to determine that a motion to reopen was 

required in order to preserve his status.” 272 F.3d at 1194; 

see also id. at 1185 (“[a]ll one need show is that by the 

exercise of reasonable diligence the proponent of tolling 

could not have discovered essential information bearing on 

the claim” (quoting In re Gardenshire, 220 B.R. 376, 382 

(B.A.P. 9th Cir. 1998))); Miles, 187 F.3d at 1107; Valverde, 

224 F.3d at 134. The question, then, is whether and how 

Pace and Holland disturbed this settled understanding of the 

dual roles of diligence and the stop-clock calculation—

especially when, as I shall show, a recent Supreme Court 

case reiterated the stop-clock understanding of equitable 

tolling.

Pace arose in a distinctive context. Pace’s state 

conviction became final four years before AEDPA’s oneyear statute of limitations was enacted, at a time when courts 

applied a laches analysis to the timeliness of federal habeas 

petitions because there was no limitations statute. 544 U.S. 

at 410–11; see also Gratzer v. Mahoney, 397 F.3d 686, 690 

(9th Cir. 2005) (“In pre-AEDPA practice, the equitable 

doctrine of laches as applicable to habeas petitions was 

codified in Rule 9(a) of the Rules Governing Section 2254 

Cases.”). Indeed, before AEDPA, some states had no, or had 

only recently passed, deadlines for filing state postconviction petitions. Grant v. Swarthout, 862 F.3d 914, 922 

(9th Cir. 2017). Thus, petitioners sometimes waited years 

before filing state post-conviction petitions, leaving federal 

habeas courts to determine “whether petitioners had sat on 

their claims for years before seeking relief and then asserted 

that they were further entitled to equitable tolling.” Id. With 

AEDPA’s passage, all prisoners to whom AEDPA applied 

and who had not yet filed petitions were given 365 days 

within which to file one. Pace missed that deadline and 
54 SMITH V. DAVIS

sought statutory and, as a backup, equitable tolling. 544 U.S.

at 410, 417–18.

The Court rejected Pace’s principal, statutory tolling 

argument. Id. at 417. In a brief discussion denying equitable 

tolling, the Court stressed that Pace “waited years, without 

any valid justification” to file his petition in Pennsylvania. 

Id. at 419 (emphasis added). Had he “advanced his claims 

within a reasonable time of their availability,” the Court 

stated, Pace would not have “fac[ed] any time problem, state 

or federal.” Id. It also noted (but seemingly placed no weight 

upon) the fact that, after the rejection of his state court 

petition became final, Pace waited five more months to file 

in federal court. Id. The Court gave no indication that, if Pace 

had filed five months earlier, it would have been any more 

inclined to grant equitable relief, given the years-long prior 

delay. Indeed, the passage of AEDPA gifted Pace a year he 

would not otherwise have had within which to file. 

Essentially, the Court held that laches already barred Pace’s 

claim when AEDPA was enacted, so he was entitled to no 

additional consideration after he was accorded an additional 

year. Id. at 419 (citing McQuiddy v. Ware, 20 Wall. 14, 19 

(1874) (“Equity always refuses to interfere where there has 

been gross laches in the prosecution of rights) (emphasis 

added)). In light of the transition worked by AEDPA—from 

a regime in which courts assessed filing delays in the 

absence of any statute of limitations to one in which they 

defer to a congressional determination of the time it should 

take to file—Pace’s distinct factual context is unlikely to 

recur. See Grant, 862 F.3d at 922 (“Pace was a case in which 

the Court denied equitable tolling based on the petitioner’s 

failure to pursue state postcollateral relief for four years after 

his direct appeal was concluded. . . . Pace was the product of 

a problem common before the passage of AEDPA.”)
SMITH V. DAVIS 55

The Court also emphasized that Pace’s pre-AEDPA 

multiple-year delay lacked “any valid justification,” because 

the facts underlying the claims in his habeas petition were 

available by 1991, long before his eventual filing. Id. at 418–

19. Pace was not denied equitable tolling on the basis of his 

delay alone; it was the availability, even before the 

limitations period began, of the facts he needed to file, 

together with the five years that lapsed before AEDPA’s 

passage, that precluded a finding that the asserted 

extraordinary circumstance during the additional year the 

new limitations period provided actually prevented timely 

filing. Id.

Given this history, Pace is best understood as an 

application of pre-AEDPA principles in the context of a 

prisoner whose conviction became final well before 

AEDPA. Otherwise, Pace’s lack of diligence before 

AEDPA’s statute of limitations began to run would have had 

no bearing on whether he was entitled to equitable tolling 

under the statute thereafter. Pace thus offers no support for 

the rule that the majority ultimately endorses: that a postextraordinary-circumstance delay alone can be seized upon 

to deny relief for an otherwise diligent petitioner. Although 

Pace reaffirmed that equitable tolling requires diligence, it

does not suggest that the diligence requirement displaces, 

rather than operates in conjunction with, the stop-clock 

approach to determining the amount of time available to the 

plaintiff or petitioner.9

9 The majority asserts that if the stop-clock approach had been 

applied to the facts of Pace, the outcome would have been different. Maj. 

Op. at 21 n.4. Not so. Again, under the stop-clock approach, diligence is 

a separate inquiry and can independently bar the application of equitable 

tolling, obviating the need to apply the stop-clock calculation—which is 
56 SMITH V. DAVIS

The majority next relies on Holland, which it asserts 

“took an additional step that weighs against” retaining 

Socop-Gonzalez by adding “an explicit causation 

requirement to the rule for equitable tolling.” Maj. Op. at 23. 

But this Court had already recognized a causation 

requirement for equitable tolling before Socop-Gonzalez, 

and it has focused its diligence analysis on precisely that 

requirement. See Miles, 187 F.3d at 1107; Valverde, 

224 F.3d at 134. Moreover, to the extent the Holland Court 

modified Pace at all, it modified only the extraordinarycircumstance element of equitable tolling—not the diligence 

element—by adding four words (“and prevented timely 

filing”) to the requirement that “some extraordinary 

circumstance stood in [the petitioner’s] way.” 560 U.S. 

at 649 (“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only 

if he shows ‘(1) that he has been pursuing his rights 

diligently, and (2) that some extraordinary circumstance 

stood in his way’ and prevented timely filing.”) (quoting 

Pace, 544 U.S. at 418).10 The case does nothing to heighten 

the diligence requirement, nor does it invite judicial secondguessing of congressional determinations of the time 

ordinarily needed to file.

what happened in Pace. See pp. 52–53 (discussing the diligence prong 

as applied in Socop-Gonzalez).

10 The majority makes much of the Pace and Holland Courts’ 

phrasing of the diligence requirement as requiring that the petitioner 

demonstrate “that he ‘has been pursuing his rights diligently’—not that 

he ‘pursued,’ ‘had pursued,’ or ‘has pursued’ his rights diligently.” Maj. 

Op. at 20 n.3. But as the majority itself recognizes in a separate footnote, 

the Supreme Court elsewhere has more recently phrased the diligence 

requirement to require only that the petitioner “has pursued his rights 

diligently.” Maj. Op. at 29 n.7 (quoting CTS Corp. v. Waldburger, 

573 U.S. 1, 9 (2014)).
SMITH V. DAVIS 57

The majority also suggests that Holland further 

undermined Socop-Gonzalez by remarking on a petitioner’s 

diligence after the extraordinary circumstance had 

dissipated. But as the majority acknowledges, this remark 

had no effect on the outcome of the case. Maj. Op. at 24 n.5. 

So, like Pace, Holland does not stand for the proposition that 

a delay in filing after an extraordinary circumstance has 

abated, standing alone, can justify denying a petitioner 

equitable relief. Rather, Pace and Holland made explicit 

what the Ninth Circuit had already recognized about 

equitable tolling’s diligence requirement, see Miles, 

187 F.3d at 1107; Valverde, 224 F.3d at 134; Spitsyn, 

345 F.3d at 802; Roy, 465 F.3d at 973; Doe, 661 F.3d 

at 1012–13, and did not discuss—much less disapprove—

the well-established stop-clock principle. Much more would 

be needed to conclude—as does the majority—that Pace and 

Holland silently abrogated Burnett and American Pipe.

Were there any doubt that the stop-clock approach to 

equitable tolling survived Pace and Holland, the Supreme 

Court eliminated it in Artis v. District of Columbia, 138 S. 

Ct. 594 (2018). Artis discussed at length the meaning of 

“tolling” in the limitations period context generally and in 

the equitable tolling context in particular, explaining that the 

stop-clock approach applies in both contexts. Id. at 601–02.

The equitable tolling discussion in Artis was an integral 

part of a larger discussion of the legal meaning of “tolling” 

in the context of statutory time prescriptions generally. The 

Court in Artis adopted a stop-clock interpretation of the word 

“tolled” within the meaning of 28 U.S.C. § 1367(d) on the 

understanding that “‘tolled’ in the context of a time 

prescription . . . means that the limitations is suspended 

(stops running) . . . then starts running again when the tolling 

period ends, picking up where it left off.” Id. at 601. Artis
58 SMITH V. DAVIS

confirmed that understanding by quoting Black’s Law 

Dictionary 1488 (6th ed. 1990) for the proposition that 

“‘toll,’ when paired with the grammatical object ‘statute of 

limitations,’ means “to suspend or stop temporarily,” 138 S. 

Ct. at 601, and also by quoting American Pipe for the 

proposition that “a ‘tolling’ prescription . . . ‘suspend[s] the 

applicable statute of limitations,” id. at 602 (quoting 

414 U.S. at 554). The Court then turned to its understanding 

of equitable tolling as further indication of the stop clock 

meaning of “tolling”:

We have similarly comprehended what 

tolling means in decisions on equitable 

tolling. See, e.g., CTS Corp. v. Waldburger, 

573 U.S. —, —, 134 S.Ct. 2175, 2183, 189 

L.Ed.2d 62 (2014) (describing equitable 

tolling as “a doctrine that pauses the running 

of, or ‘tolls’ a statute of limitations” (some 

internal quotation marks omitted)); United 

States v. Ibarra, 502 U.S. 1, 4, n. 2, 112 S.Ct. 

4, 116 L.Ed.2d 1 (1991) (per curiam) 

(“Principles of equitable tolling usually 

dictate that when a time bar has been 

suspended and then begins to run again upon 

a later event, the time remaining on the clock 

is calculated by subtracting from the full 

limitations period whatever time ran before 

the clock was stopped.”).

Id. at 602.

The majority emphasizes that Artis and some of the cases 

upon which it relied did not directly involve equitable 

tolling; instead, the issue in Artis was what a statute meant 

by “toll.” Maj. Op. at 27–29. But it would have been 
SMITH V. DAVIS 59

puzzling for the Court to describe the stop-clock rule of 

equitable tolling exactly as it was framed in Socop-Gonzalez

if Pace and Holland had genuinely wrought the revolution 

in the jurisprudence of equitable tolling imagined by the 

majority.

Moreover, where a precedent “confronts an issue 

germane to the eventual resolution of the case, and resolves 

it after reasoned consideration in a published opinion, that 

ruling becomes the law of the circuit, regardless of whether 

doing so is necessary in some strict logical sense.” Miranda 

B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) 

(quoting United States v. Johnson, 256 F.3d 895, 914 (9th 

Cir. 2001)). And, in any event, “[w]e do not treat considered 

dicta from the Supreme Court lightly.” McCalla v. 

MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir. 

2004) (quoting United States v. Montero-Camargo, 208 F.3d 

1122, 1132 n.17 (9th Cir. 2000) (en banc)). Here, the 

Supreme Court invoked its stop-clock understanding of 

equitable tolling as an integral part of its reasoning for 

adopting its stop-clock interpretation of the statute at issue. 

Artis thus made clear that Pace and Holland did not silently 

overrule Burnett and American Pipe and thereby undermine 

Socop-Gonzalez.

IV. Administrability and Uniformity

The majority does not engage at all with the third 

consideration underlying Socop-Gonzalez: that the approach 

the majority today adopts is “needlessly difficult to 

administer,” and promotes “inconsistency” and 

“uncertainty.” 272 F.3d at 1195; see also Maj. Op. at 31 n.8. 

But, if more were needed, that consideration remains a 

powerful reason to retain Socop-Gonzalez’s stop-clock 

approach to equitable tolling.
60 SMITH V. DAVIS

Given its “chancellor’s foot” approach to deciding the 

total filing period available to a petitioner when the other 

equitable tolling requisites are met, the Court’s opinion 

today provides no guidance to district courts or three-judge 

panels for determining, retrospectively, the filing period 

required in the various circumstances in which equitable 

tolling can be invoked. This case is one in which the 

extraordinary circumstance impeded filing during the first 

part of the statutory limitations period. But that is not always 

the case. Extraordinary circumstances are often 

extraordinary precisely because they arise at an unexpected 

time and involve widely varying circumstances. By 

committing this Circuit to the business of deciding how long 

one should take to prepare and file a federal claim, the 

majority requires judges to decide whether claimants should 

receive more, less, or the same amount of time to file 

depending on what the extraordinary circumstance is and 

whether it arises sooner or later during the running of the 

limitations period.

To illustrate: Suppose that a six-month coma befalls one 

petitioner exactly at the moment that an applicable one-year 

limitations period would ordinarily begin to run. And 

suppose that a second petitioner succumbs to an 

indistinguishable six-month coma with exactly six months 

remaining on the applicable limitations clock. Both 

petitioners file exactly 366 days after the applicable 

limitations period would ordinarily have begun—that is, 

both petitioners took six conscious months plus an additional 

conscious day to prepare their respective filings. Must the 

second petitioner exhibit more, less, or the same level 

diligence as the first to prove worthy of equitable tolling?

Under the stop-clock rule, of course, equitable tolling 

would provide the full period Congress determined should 
SMITH V. DAVIS 61

be available, 365 days, so each petitioner would receive six 

months of tolling and both filings would be timely. But 

without such a rule, courts are left free to decide, on a casespecific basis, whether six months and a day was too long a 

period within which to file for the first petitioner but not the 

second (perhaps on the ground that, once the first petitioner 

awoke, he had an uninterrupted preparation period, while the 

second petitioner could not have foreseen the barrier to 

filing), or vice versa (perhaps because the second petitioner 

could have been working diligently all along and, if she did, 

could have finished before disaster struck). Suppose, further, 

that a third unfortunate petitioner survives a 365-day coma 

which began on the day that his limitations period started. 

Could six conscious months (plus a day) be deemed too long 

a period within which to prepare and file a claim in his case, 

even though Congress provided a 365-day limitations 

period?

Consider, too, the dilemmas the majority’s approach 

creates for petitioners. The majority effectively requires 

petitioners to be prepared, in advance of filing, to 

demonstrate precisely how they used their time, even if they 

do not yet know that an extraordinary circumstance that gets 

in their way may arise. This new requirement is particularly 

troubling given the majority’s assertion—unnecessary to 

decide this case—that diligence before the extraordinary 

circumstance arises must also be demonstrated. See, e.g., 

Maj. Op. at 30. Under the majority’s approach, a petitioner 

who fears that an extraordinary circumstance might arise 

would be well-advised to prepare a journal, demonstrating 

just how diligently they have used each month, day, or hour 

available, to prevent a judge from seizing upon delay that 

seems to her excessive as an excuse to deny relief.
62 SMITH V. DAVIS

Then there is the problem of what the journal must show 

to reflect diligence: If the petitioner attends classes provided 

by the prison for three hours when he could be working on 

his petition, is he insufficiently diligent? If a non-prisoner 

plaintiff takes a week-long vacation with his family when he 

could be working on his complaint, is he insufficiently 

diligent? Should the petitioner’s reading level or minor 

illnesses affect the determination of how long he should have 

taken to file once the extraordinary circumstance abated?

Any answers to these questions will be unpredictable and 

come after the fact. As a result, a petitioner will have the 

incentive “to rush to court without fully considering his or 

her claim—a policy that serves none of the parties involved.” 

Socop-Gonzalez, 272 F.3d at 1196. Socop-Gonzalez was 

correct to regard the ease of administration of the stop-clock 

rule as an additional reason for affirming it. I would do so 

again today.

V. Equitable Tolling as Applied

The strength of Socop-Gonzalez’s administrability 

consideration is well demonstrated by the majority’s 

application of its approach to the facts of this case.

It is undisputed that Smith’s lawyer wrongfully withheld 

Smith’s appellate record, despite Smith’s diligent efforts in 

seeking it, for 66 days. Smith filed his federal habeas petition 

65 days after the statute of limitations would ordinarily have 

expired. He requests equitable tolling for the 66 days for 

which his record was wrongfully withheld. Applying the 

stop-cock rule (and assuming, again, that the withholding of 

the record was an extraordinary circumstance), Smith filed 

his petition with a day to spare.
SMITH V. DAVIS 63

It is unclear on the present record how Smith used the 

364 days it took him to prepare and file his petition. 

Although his legal arguments on federal habeas are largely 

the same as those asserted in his state court appellate briefs, 

he deleted one claim. Why, and whether his decision to do 

so depended on his review of the case files, the record does 

not disclose. Also, Smith’s federal habeas petition contained 

20 pages of factual background copied, with a number of 

alterations, from a brief he submitted on direct appeal. The 

record does not tell us whether the fact section he revised 

was included in the records he received.

This factual ambiguity illustrates why this Court has long 

tethered equitable tolling’s diligence inquiry to its causation

requirement. Suppose, for example, that, after receiving the 

records wrongfully withheld, Smith never opened the box 

containing them. If that were so, it could not be said that the 

66-day delay in receiving those records prevented his timely 

filing, as he evidently did not need those records to prepare 

his petition. To put it another way: for a petitioner who 

would make no use of his record, the unavailability of that 

record is not an extraordinary circumstance that prevents 

timely filing.

But suppose, instead, that Smith did review the 

wrongfully withheld records to determine whether his 

petition might be strengthened by them. That effort could 

take considerable time. As the Seventh Circuit has 

recognized in a similar context,

[S]ometimes it takes a longer time to review 

the possibilities, discard the least promising, 

and write a concise pleading than it would to 

write a kitchen-sink petition. Perhaps a 

review of his entire record indicated to 

[petitioner] that he was best served by 
64 SMITH V. DAVIS

repeating claims made by a member of the 

bar, instead of trying to craft legal arguments 

from scratch. He could not have known until 

he had the chance to review his file.

Socha v. Boughton, 763 F.3d 674, 688 (7th Cir. 2014). 

Exactly how much time should be allowed for that reviewing 

process and for the preparation of a habeas petition based on 

it? Congress has been clear: a petitioner is permitted to take 

up to 365 days to prepare and file a federal habeas petition. 

Again, “[a] year is a year is a year.” Lott, 304 F.3d at 927 

(McKeown, J., concurring).

The difference between these two scenarios explains 

why, even if Smith’s federal habeas petition had been a 

verbatim copy of what he submitted for state habeas review, 

the 364-day delay between his receipt of the records and his 

filing, standing alone, cannot support the denial of relief. In 

the first scenario, Smith’s lack of diligence once he received 

his record would have illustrated that the absence of his 

records did not affect his ability to meet the statutory 

deadline, so his lack of diligence would preclude equitable 

tolling. But in the second scenario, in which Smith did need 

and use his case files, his overall diligence should be 

measured against the 365-day period provided by Congress. 

Under these circumstances, the causal link would be 

unbroken: had Smith’s attorney not prevented him from 

beginning his reviewing process sooner, he would have had 

the full statutory period in which to prepare a timely filing.

The majority does not and cannot say which of these two 

scenarios more accurately reflects Smith’s drafting process. 

Previously, when we have been unsure about the relationship 

between the asserted extraordinary circumstance and the 

impact of the plaintiff’s diligence, or lack thereof, on his 
SMITH V. DAVIS 65

ability to use the time ordinarily available under the 

limitations deadline, we have remanded for the fact-finding 

necessary to resolve that uncertainty. Spitsyn, 345 F.3d at 

802. This the majority refuses to do. On the one hand, the 

majority instructs courts to be “fact-specific”; on the other, 

the majority’s reasoning provides no guidance as to which 

sorts of facts—say, variations in petitioners’ reading levels, 

in the scheduling demands of their wardens, or in the quality 

of their prison libraries—might have made a difference for 

Smith. Compare Maj. Op. at 11–15 with Maj. Op. at 33–36. 

So, the majority’s ruling is really that 364 days is always too 

long a period within which to prepare a federal habeas 

petition, whatever the petitioner was doing for those days—

even though Congress provided a 365-day limitations 

period. From whence that judicially decreed benchmark 

came we are not told.11

The majority rejects this characterization of its holding, 

insisting that it has “no trouble imagining” cases in which 

taking 364 days to prepare and file a habeas petition after an 

extraordinary circumstance abates does not disqualify a 

petitioner from receiving equitable tolling. Maj. Op. 35. But 

it makes no effort to distinguish its imaginings from the case 

at hand, saying only that petitioners must work on their 

petitions “with some regularity.” Maj. Op. at 35. We are left 

to wonder what sort of regularity must be demonstrated—

11 This indifference to the factual record—or in this case, to the 

silence of the record as to the pertinent considerations—creates, I note, 

a split with the Sixth and Seventh Circuits, which have both recognized 

that “the mere passage of time—even a lot of time—. . . does not 

necessarily mean [a claimant] was not diligent.” Gordillo v. Holder, 

640 F.3d 700, 705 (6th Cir. 2011); see also Pervaiz v. Gonzalez, 405 

F.3d 488, 490 (7th Cir. 2005) (“[T]he test for equitable tolling . . . is not 

the length of the delay.”).
66 SMITH V. DAVIS

that is, what the journal Smith is retroactively expected to 

have prepared must show. See p.62, supra.

Conclusion

Under the new regime, plaintiffs and petitioners who file 

their habeas petitions free from any extraordinary 

impediments will enjoy the full 365 days that Congress 

provided within which to complete and file their initial 

pleadings. But if an extraordinary circumstance—say, grave 

illness, see, e.g., Arbas v. Nicholson, 403 F.3d 1379, 1381 

(Fed. Cir. 2005), serious attorney misconduct, Holland, 

560 U.S. at 652, or misinformation from a court or 

government office, Socop-Gonzalez, 272 F.3d at 1184–85—

precludes a potential litigant from drafting or filing his 

lawsuit during part or all of the limitation period, the ground 

shifts. Now, the litigant has only the number of days for 

drafting and filing deemed adequate after the fact by the 

judge or judges who happen to be assigned to his case. We 

decided otherwise in Socop-Gonzalez, and Artis reaffirmed 

the stop-clock approach to equitable tolling there adopted. 

Neither the majority’s extravagant view of judicial 

discretion in equity nor its misreading of Supreme Court 

precedent can justify abandoning that approach.

I therefore respectfully dissent. I would remand for the 

district court to apply the correct, stop-clock standard, after 

deciding (rather than assuming, as both the majority and I 

have done) whether Smith did in fact face an extraordinary 

circumstance and met the diligence standard as it relates to 

that circumstance.