                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ANTHONY WALDRIP,                         No. 07-55512
             Petitioner-Appellant,
               v.                          D.C. No.
                                         CV-03-05255-JVS
JAMES E. HALL,
                                            OPINION
            Respondent-Appellee.
                                     
       Appeal from the United States District Court
          for the Central District of California
        James V. Selna, District Judge, Presiding

                  Argued and Submitted
         February 11, 2008—Pasadena, California

                Filed November 18, 2008

     Before: Stephen S. Trott, Richard R. Clifton, and
          Consuelo M. Callahan, Circuit Judges.

                 Opinion by Judge Clifton




                          15461
15464                   WALDRIP v. HALL
                          COUNSEL

Gail Ivens, Deputy Federal Public Defender, Los Angeles,
California, for the petitioner-appellant.

Yun K. Lee, Deputy Attorney General, Los Angeles, Califor-
nia, for the respondent-appellee.


                          OPINION

CLIFTON, Circuit Judge:

   In this case we are called upon to apply the Supreme
Court’s decision in Evans v. Chavis, 546 U.S. 189 (2006).
Petitioner Anthony Waldrip, a California state prisoner, filed
a petition for habeas corpus under 28 U.S.C. § 2254. The dis-
trict court dismissed the petition as untimely under the rele-
vant statute of limitations, 28 U.S.C. § 2244(d). The key issue
is whether Waldrip’s state court post-conviction review pro-
ceeding should be considered “pending” under 28 U.S.C.
§ 2244(d)(2) during a period of over eight months between
the denial of a habeas petition by a California state court and
the filing of a new petition on behalf of the same prisoner in
a higher California state court, which was subsequently
denied by the state court without comment as to whether it
was timely filed. If so, then the limitations period for filing a
habeas petition in federal court would not run, or would be
tolled, during that time. Applying Evans, however, we con-
clude that a time gap in excess of six months was too long,
absent sufficient justification based on unique facts pertaining
to the individual petitioner which are not present here. We
thus affirm the dismissal by the district court of Waldrip’s
federal petition as untimely.

I.   Background

  Following a bench trial in California state court, Waldrip
was convicted of being a felon in possession of a firearm in
                           WALDRIP v. HALL                          15465
violation of Cal. Penal Code § 12021(a)(1), on September 11,
2000. The trial court found that he had been convicted of at
least three prior “strike” convictions and sentenced him to
twenty-five years to life in state prison under California’s
“three strikes” law. The California Court of Appeal affirmed
the conviction on October 16, 2001, and Waldrip did not peti-
tion the California Supreme Court for review.

   Three separate habeas petitions were subsequently filed on
behalf of Waldrip in California state courts, albeit in an unor-
thodox pattern. On October 31, 2001, Waldrip’s appellate
counsel filed a habeas petition in the California Court of
Appeal, which argued that trial counsel was ineffective for
failing to raise a defense of momentary possession. That peti-
tion was denied on November 13, 2001 in a reasoned decision.1

   On March 14, 2002, Waldrip filed pro se a second habeas
petition in the Los Angeles County Superior Court, arguing
that trial counsel failed to raise all applicable defenses and
that the “three strikes” sentence violated the Eighth Amend-
ment. That petition was denied on March 28, 2002.

   The third habeas petition was filed on December 11, 2002
in the California Supreme Court by Waldrip’s appellate coun-
sel. This petition raised the same argument set forth in the
first habeas petition, the one filed with the court of appeal,
that trial counsel was ineffective for failing to raise the
defense of momentary possession. Waldrip filed a pro se sup-
plement to that petition on January 14, 2003, arguing that
(1) trial counsel was ineffective for failing to raise a defense
and in advising Waldrip to waive a jury trial, (2) his sentence
  1
    On November 28, 2001, appellate counsel attempted to file a petition
for rehearing from the denial of that habeas petition in the same court of
appeal. It appears that the petition for rehearing was never actually filed
but was instead rejected and returned by the court five days later, on
December 3, 2001. The record is not entirely clear on the reason, but those
five days are immaterial to the decision in this case, so we have not given
further consideration to those events.
15466                   WALDRIP v. HALL
violated the Eighth Amendment, and (3) appellate counsel
was ineffective for failing to raise certain arguments on direct
review. The California Supreme Court denied this third peti-
tion without comment or citation on June 18, 2003.

   On July 16, 2003, Waldrip constructively filed a federal
habeas petition in the district court. The state moved to dis-
miss the petition as time-barred. After Waldrip filed an oppo-
sition arguing that under existing caselaw the various state
petitions filed on his behalf entitled him to tolling, the state
withdrew the motion and filed an answer instead. After the
Supreme Court decided Evans v. Chavis, in 2006, however,
the state moved for leave to amend its answer and to file a
motion to dismiss based on that decision. The district court
granted leave to amend and appointed counsel for Waldrip.
The state then moved to dismiss Waldrip’s federal habeas
petition, arguing that it was time-barred. Adopting a magis-
trate judge’s recommendation, the district court granted the
motion to dismiss the federal petition as untimely, on March
29, 2007. This timely appeal followed.

II.    Discussion

  A.    Motion to Amend the Answer

   Waldrip argues that the district court abused its discretion
by granting the state leave to amend its answer to assert a stat-
ute of limitation defense. We disagree.

   [1] A party may amend its pleading once within 20 days
after a responsive pleading has been served, or if that period
has passed, then by leave of the court or by consent of the
other party. Fed. R. Civ. P. 15(a). Courts may freely grant
leave when justice so requires, and public policy strongly
encourages courts to permit amendments. Fed. R. Civ. P.
15(a); Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614
(9th Cir. 1993). The policy of allowing amendments “is to be
applied with extreme liberality.” Owens v. Kaiser Found.
                       WALDRIP v. HALL                    15467
Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). We
review a district court’s decision to grant leave to amend an
answer for abuse of discretion. Id.

   [2] In determining whether a court abused its discretion in
allowing an amendment, “we often consider: bad faith, undue
delay, prejudice to the opposing party, futility of the amend-
ment, and whether the party has previously amended his
pleadings.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.
1995). Here, nothing in the record indicates that the state
sought the amendment in bad faith or that the amendment
would have been futile. Any prejudice Waldrip may have suf-
fered as a result of the amendment was mitigated by the
opportunity afforded to him to respond to the amended
answer. Further, the state had not previously amended the
answer. Thus, whether the district court abused its discretion
in granting leave to amend turns on whether the state’s motion
to amend was unduly delayed.

   The district court concluded that “the delay in raising the
statute of limitations defense is due to the recent decision in
Evans, and not due to lack of diligence.” Waldrip challenges
that conclusion, arguing that Hall should have known when he
filed his initial answer that then-existing Supreme Court pre-
cedent in Carey v. Saffold, 536 U.S. 214 (2002), supported the
argument that the federal petition was time-barred.

   [3] In Saffold, the Supreme Court held that, where a state
court denies a state habeas petition using the words “ ‘on the
merits,’ those words cannot by themselves indicate that the
petition was timely.” 536 U.S. at 226. The Court noted that
a state court may address the merits of a claim even if it was
presented in an untimely way when the merits present no dif-
ficult issue, where the court wants to identify potential alter-
native grounds for decision, or where the court wants to
explain to a prisoner that his claim failed for substantive rea-
sons, not simply based on some procedural technicality.
Because the state supreme court in Saffold denied the state
15468                   WALDRIP v. HALL
petition by “stating in a single sentence that it did so ‘on the
merits and for lack of diligence,’ ” the Court held that those
words did not necessarily establish that the state petition was
timely. Id. at 217-18 & 226.

   Waldrip contends that, in light of Saffold, the state “knew
full well that any decision that (either by express statement as
in Saffold or by silence) could be construed to be ‘on the mer-
its’ did not necessarily indicate that the petition was timely
filed” and that the state should have known when it filed its
initial answer to assert as a defense that the petition was time-
barred. But Ninth Circuit cases following Saffold reflect that
the law then was not so clear as Waldrip now contends. For
example, in King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003),
we cited Saffold but nevertheless noted that courts must deter-
mine whether a state habeas petition is denied “on the merits”
in deciding whether a petition is time-barred or whether the
limitations period should be tolled. In Delhomme v. Ramirez,
340 F.3d 817, 819-21 & n.2 (9th Cir. 2003), where the state
supreme court denied a state habeas petition without com-
ment, we inferred from the court’s silence that there was “no
indication that any of [the] petitions were untimely” and con-
cluded that tolling was therefore proper. Later, in Chavis v.
LeMarque, 382 F.3d 921, 926 (9th Cir. 2004), overruled by
Evans v. Chavis, 546 U.S. 189 (2006), we again ruled that
where a state petition was denied on the merits, tolling was
appropriate. These cases suggested that tolling the time to file
a federal petition was proper where a state court denies a state
petition “on the merits” or without comment. After the state
filed a motion to dismiss Waldrip’s federal petition as
untimely, Waldrip responded with an argument to the con-
trary. At the time, Waldrip appeared to have the better of the
argument, and it must be assumed that the district court would
have denied the state’s motion had it followed existing Ninth
Circuit precedent when the motion was originally filed. We
cannot fault the state for not pursuing a motion which would
have been futile at the time.
                          WALDRIP v. HALL                   15469
   [4] It was not until Evans that the Supreme Court clarified
that the Ninth Circuit cases were “not consistent with Saf-
fold.” 546 U.S. at 197-98. Further, the Evans Court expressly
addressed the effect of a state court’s silence as to whether a
petition is denied on the merits:

       If the appearance of the words “on the merits” does
       not automatically warrant a holding that the filing
       was timely, the absence of those words could not
       automatically warrant a holding that the filing was
       timely. After all, the fact that the California Supreme
       Court did not include the words “on the merits” in its
       order denying Chavis relief makes it less likely, not
       more likely, that the California Supreme Court
       believed that Chavis’ 3-year delay was reasonable.

Id. at 197 (emphases in original). Given that Evans reversed
our court in clarifying the effect of the California Supreme
Court’s unexplained denial of a state habeas petition, the
state’s decision in this case to move for leave to amend in
light of Evans was reasonable and not unduly delayed. See
Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir.
1990) (noting that “whether the moving party knew or should
have known the facts and theories raised by the amendment
in the original pleading” is “relevant to evaluating” whether
the party “unduly delayed in filing their motion”). Accord-
ingly, the district court did not abuse its discretion in granting
Hall’s motion to amend his answer. See Bonin, 59 F.3d at
845.

  B.     Statutory Tolling of the Limitations Period

   Waldrip next contends that the district court erred in con-
cluding that his federal habeas petition was time-barred. We
review de novo the district court’s dismissal of the petition as
untimely. See Shannon v. Newland, 410 F.3d 1083, 1087 n.3
(9th Cir. 2005); Delhomme, 340 F.3d at 819.
15470                   WALDRIP v. HALL
   [5] The Antiterrorism and Effective Death Penalty Act of
1996 “requires a state prisoner whose conviction has become
final to seek federal habeas corpus relief within one year.”
Evans, 546 U.S. at 191 (citing 28 U.S.C. § 2244(d)(1)(A)).
AEDPA “tolls this 1-year limitations period for the ‘time dur-
ing which a properly filed application for State post-
conviction or other collateral review is pending.’ ” Id. (citing
28 U.S.C. § 2244(d)(2)) (ellipses points omitted). An applica-
tion for post-conviction review is pending “while a California
petitioner ‘completes a full round of state collateral review,’ ”
Delhomme, 340 F.3d at 819 (brackets omitted), including dur-
ing the “period between (1) a lower court’s adverse determi-
nation, and (2) the prisoner’s filing of a notice of appeal,
provided that the filing of the notice of appeal is timely under
state law.” Evans, 546 U.S. at 191 (emphasis in original). In
California, “a state prisoner may seek review of an adverse
lower court decision by filing an original petition (rather than
a notice of appeal) in the higher court, and that petition is
timely if filed within a ‘reasonable time.’ ” Id. at 192-93.
Thus, in California, “[a]s long as the prisoner filed a petition
for appellate review within a ‘reasonable time,’ he could
count as ‘pending’ (and add to the one-year time limit) the
days between (1) the time the lower state court reached an
adverse decision, and (2) the day he filed a petition in the
higher state court.” Id. at 193.

   Evans noted that the California Supreme Court had not yet
provided “clear direction or explanation . . . about the mean-
ing of the term ‘reasonable time’ in the present context.” See
id. at 198. But Evans also observed that six months appeared
to be too long:

       Six months is far longer than the “short periods of
    time,” 30 to 60 days, that most States provide for fil-
    ing an appeal to the state supreme court. Saffold,
    [536 U.S.] at 219. It is far longer than the 10-day
    period California gives a losing party to file a notice
    of appeal in the California Supreme Court, see
                       WALDRIP v. HALL                    15471
    Cal.App.Ct. Rule 28(e)(1) (2004). We have found no
    authority suggesting, nor found any convincing rea-
    son to believe, that California would consider an
    unjustified or unexplained 6-month filing delay “rea-
    sonable.”

Id. at 201 (brackets omitted).

  Moreover, in Evans the Supreme Court noted that the issue
was not purely one of state law:

    [I]n Saffold, we held that timely filings in California
    (as elsewhere) fell within the federal tolling provi-
    sion on the assumption that California law in this
    respect did not differ significantly from the laws of
    other States, i.e., that California’s “reasonable time”
    standard would not lead to filing delays substantially
    longer than those in States with determinate timeli-
    ness rules. 536 U.S. at 222-223.

546 U.S. at 199-200 (emphasis in original). After making the
observation quoted above that the Court did not believe that
California would consider a 6-month delay reasonable, the
Court in Evans went on to say:

    Nor do we see how an unexplained delay of this
    magnitude [(six months)] could fall within the scope
    of the federal statutory word “pending” as inter-
    preted in Saffold.

Id. at 201.

   [6] Whether based on the Court’s expectation of what time
delay the California Supreme Court would view as “reason-
able” or on its interpretation of the word “pending” in the fed-
eral statute of limitations, Evans made clear that an
unexplained delay of six months between the denial by one
California state court and a new filing in a higher California
15472                  WALDRIP v. HALL
court was too long to permit tolling of the federal limitations
period on the ground that state court proceedings were “pend-
ing.” That conclusion dooms Waldrip’s federal petition.

  The critical dates for Waldrip may be summarized as fol-
lows:

    October 16, 2001       Conviction affirmed by state
                           court of appeal

    October 31, 2001       Habeas petition filed in state
                           court of appeal (by Waldrip’s
                           state appellate counsel)

    November 13, 2001 Habeas petition denied by
                      state court of appeal

    November 26, 2001 Conviction final (40 days after
                      conviction affirmed by state
                      court of appeals when no peti-
                      tion for review was filed with
                      state supreme court)

    March 14, 2002         Habeas petition filed in state
                           superior court (by Waldrip pro
                           se)

    March 28, 2002         Habeas petition denied by
                           state superior court

    December 11, 2002 Habeas petition filed in state
                      supreme court (by Waldrip’s
                      state appellate counsel)

    January 14, 2003       Supplement to habeas petition
                           filed in state supreme court
                           (by Waldrip pro se)
                          WALDRIP v. HALL                       15473
      June 28, 2003           Habeas petition denied by
                              state supreme court

      July 16, 2003           Habeas petition deemed filed
                              in federal district court

   The California Court of Appeal affirmed Waldrip’s convic-
tion on October 16, 2001. Waldrip did not petition the Cali-
fornia Supreme Court for review, and his conviction became
final forty days later, on November 26, 2001.2 Waldrip there-
fore had one year from that date to file a federal habeas peti-
tion. See Evans, 546 U.S. at 200. Waldrip did not file his
petition in district court until July 16, 2003, one year and 233
days after his conviction became final. Therefore, his “fed-
eral petition was timely only if ‘a properly filed application
for State post-conviction or other collateral review was pend-
ing’ for at least” 233 days of this time. See id. (citing 28
U.S.C. § 2244(d)(2)) (brackets omitted). Stated differently,
because the federal petition was filed more than one year after
Waldrip’s conviction became final, it is untimely unless the
limitations period is tolled for at least 233 days.

   Although there are a number of different issues regarding
the timeliness of Waldrip’s petition potentially raised by the
events here, one factor is controlling: Waldrip took too long
to file his petition to the California Supreme Court.

   The first state habeas petition, filed in the California Court
of Appeal by Waldrip’s state appellate counsel, was filed and
denied before the effective date of his conviction, 40 days
after the Court of Appeal affirmed the conviction on direct
appeal. Although its filing would otherwise have tolled the
running of the federal limitations period, since it was denied
before that period had started to run, it had no effect on the
timeliness of the ultimate federal filing.
  2
   The fortieth day was in fact a Sunday, November 25, 2001, so we con-
sider the next day, November 26, 2001, as the day Waldrip’s conviction
became final. See Fed. R. Civ. P. 6(a)(3).
15474                   WALDRIP v. HALL
   The third habeas petition was filed in the California
Supreme Court by Waldrip’s appellate counsel on December
11, 2002. As noted above, that filing raised the same argu-
ment that was raised in the first petition filed with the state
court of appeal. Waldrip filed a pro se supplement to that Cal-
ifornia Supreme Court petition on January 14, 2003, in which
he included the argument presented in his pro se habeas peti-
tion filed with the superior court. Although it might be diffi-
cult to characterize the filing by Waldrip’s attorney as an
effort to seek review of the superior court’s denial, since it did
not present the same argument that was presented in the supe-
rior court petition, Waldrip’s supplemental filing did, which
means that the peculiar path followed by Waldrip in state
court leading up to his petition to the California Supreme
Court could be viewed in two different ways.

   [7] That final state court petition could be treated as an
effort to seek review by the California Supreme Court of the
denial by the state court of appeal of the habeas petition filed
in October 2001, in effect disregarding the petition filed by
Waldrip pro se in superior court. The problem is that more
than a year passed between the date Waldrip’s conviction
became final on November 16, 2001, and December 11, 2002,
the date that the petition was filed with the California
Supreme Court. Under Evans, that is too long to permit the
time in between those dates to be tolled, and if the federal
limitations period was running during that time, it ran out
even before the California Supreme Court petition was filed.

   [8] Alternatively, the petition to the California Supreme
Court can be viewed as an attempt to obtain review by a
higher court of the denial of Waldrip’s petition to the superior
court. Viewed this way, the period of delay prior to the Cali-
fornia Supreme Court filing is shorter—a period of 258 days,
or something over eight months, instead of a period over one
year—but that is still not short enough to survive under
Evans. Moreover, the time period leading up to the filing of
the petition to the superior court would not be tolled, either.
                           WALDRIP v. HALL                        15475
On its face, that petition was not an effort to seek review of
the court of appeal’s denial, because it was filed in a lower
state court, so the time period between the conviction effec-
tive date and this filing could not be tolled on the theory that
the first petition was “pending” because Waldrip was still in
the process of seeking appellate review of its denial. The
superior court petition commenced a new “round” of collat-
eral review. See Delhomme, 340 F.3d at 820 (“each time a
petitioner files a new habeas petition at the same or lower
level, . . . the subsequent petition has no effect on the already
pending application, but triggers an entirely separate round of
review”).

   Under this view of Waldrip’s effort in state court, state pro-
ceedings were “pending” for 15 days in the superior court
(between March 14, 2002 and March 28, 2002, inclusive) and
arguably for 200 days, at most, in the state supreme court
(between December 11, 2002 and June 28, 2003, inclusive).3
That adds up to only 215 days, and as noted above, his federal
filing was too late unless he can toll 233 days.

   Waldrip attempts to explain or justify the delay in his state
court filing by asserting that his counsel at that time was busy
because he had changed employment, believed there was no
specific deadline for seeking appellate review, and was wait-
ing for the Supreme Court to decide Lockyer v. Andrade, 538
U.S. 63 (2003). That counsel was busy and did not know of
a specific deadline does not justify the delay. Further, counsel
filed the December 11 petition before the Court decided
Andrade, so waiting until Andrade was decided does not
explain the delay. Additionally, the December 11 petition was
  3
    It could be argued that January 14, 2003, rather than December 11,
2002, should properly be treated as the starting date, because it was not
until the pro se supplement was filed on the latter date that the issues
raised in the superior court petition were presented to the state supreme
court, but for this discussion we use the date more favorable to Waldrip
as it makes no difference to the end result here.
15476                  WALDRIP v. HALL
nearly identical to the October 31, 2001 petition and counsel
could easily have filed it sooner than December 2002.

   Waldrip also justifies the delay by arguing that he could not
use the prison library to work on his petition because a prison
lockdown prohibited access to the law library. Waldrip
explains that Calipatria State Prison “was on lock-down or
modified lock-down status, which meant I did not have access
to the law library” from December 3, 2001 to March 27, 2002.
Waldrip was represented by counsel at that time, so it is not
clear that Waldrip’s personal access to a law library should be
significant, but the excuse is unpersuasive in any event. The
superior court did not rule on the pro se petition until March
28, 2002, and by that date Waldrip had access to the library.
The prison lockdown does not explain or justify the eight
month delay in filing his petition to the state supreme court.

   [9] In sum, the one-year limitations period was tolled under
the statute for at most 215 days, while petitions were pending
in superior court and in the California Supreme Court. His
federal petition was filed on July 18, 2003, one year and 233
days after the conviction became final. Giving him credit for
215 days of tolling still makes his federal filing too late.
Because that petition was filed outside of the limitations
period, the district court did not err in dismissing it as
untimely.

  C.    Evidentiary Hearing

   Waldrip contends that the district court erred in denying his
request for an evidentiary hearing. Waldrip’s sole contention
on this point is that an evidentiary hearing “was required in
this case to determine how the California courts have treated
delays of similar duration alleged here.” We review the dis-
trict court’s denial of an evidentiary hearing for abuse of dis-
cretion. See Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.
2005).
                             WALDRIP v. HALL                           15477
   [10] Evans indicated that the California courts might
relieve the uncertainty by clarifying what “reasonable time”
means in this circumstance,4 546 U.S. at 199, but nothing in
Evans suggested that this should be treated by the federal
court as a factual issue, with past California decisions consti-
tuting “evidence” of what the state courts took to be a reason-
able time. The district court did not abuse its discretion by
denying an evidentiary hearing.5

III.   Conclusion

   We affirm the district court’s dismissal of Waldrip’s habeas
petition. Under Evans v. Chavis, the one-year federal limita-
tions period runs—is not tolled—during an unjustified delay
of more than six months between the denial of habeas relief
by a California state court and the filing of a subsequent peti-
tion in a higher California court.

   AFFIRMED.




  4
     Evans also noted the possibility that our court seek guidance by certify-
ing a question in an appropriate case to the California Supreme Court. 546
U.S. at 199. We recently did so in Chaffer v. Prosper, 542 F.3d 662 (9th
Cir. 2008). The delay in question in that case was 115 days, between the
denial of a first state habeas petition and the filing of a subsequent petition
in the state court of appeal. Id. at 663. That time period was shorter than
the six-month gap discussed in Evans, while Waldrip’s time gap, in con-
trast, was longer than six months.
   5
     Waldrip also contends that, in Evans, the Supreme Court “crossed [the]
line” by “overstep[ping] federal authority to control the inner workings of
state statutory and judicial procedure.” We reject this argument for we are
not free to overrule the Supreme Court’s decision in Evans. See Agostini
v. Felton, 521 U.S. 203, 207 (1997) (noting that courts of appeals shall
“leav[e] to this Court the prerogative of overruling its own decisions”).
We note, moreover, that Evans made clear that the interpretation of the
federal statute of limitation, notably the word “pending” in that statute,
was part of what was at issue, and that is a matter of federal law.
