                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 05-2497
                                      ___________

Roger Scott Sellers,                       *
                                           *
              Appellant,                   *
                                           * Appeal From the United States
       v.                                  * District Court for the
                                           * Southern District of Iowa.
Jerry Burt, Warden,                        *
                                           *      [UNPUBLISHED]
              Appellee.                    *
                                      ___________

                               Submitted: February 15, 2006
                                  Filed: February 22, 2006
                                   ___________

Before RILEY, HEANEY, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

       Roger Scott Sellers filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his Iowa state-court conviction for first-degree murder.
The district court1 denied the petition as untimely. Sellers appeals, arguing that the
district court erred by failing to equitably toll his filing deadline such that his petition
would be considered timely, and by failing to grant a continuance so that his
appointed counsel had more time to review the discovery provided by the state. We
affirm.

       1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
                                  BACKGROUND

       On May 12, 1997, Sellers was convicted of first-degree murder in Iowa state
court. Sellers’s conviction was affirmed by the Iowa Court of Appeals on
February 24, 1999, and the Iowa Supreme Court denied review on May 14, 1999. On
January 27, 2000, Sellers petitioned for post-conviction relief in state court. His
petition was dismissed, and Sellers appealed. The Iowa Court of Appeals affirmed on
February 28, 2003, and review was denied by the Iowa Supreme Court on May 23,
2003.

       On January 27, 2004, Sellers filed a pro se petition for habeas relief in district
court. The state responded by filing a motion to dismiss, noting that Sellers’s petition
was filed outside the one-year statute of limitations. See 28 U.S.C. § 2244(d)(1).
According to the state, excluding the time during which Sellers’s direct and post-
conviction proceedings were pending, Sellers’s petition was filed 411 days after his
conviction became final.

       Sellers did not dispute the state’s calculations, but instead asked the district
court to equitably toll his petition. Sellers asserted that he diligently pursued
documents in support of his habeas petition from his post-conviction counsel, but that
she failed to provide him with the information he requested. Sellers also sought a
continuance from the district court so that his appointed counsel would have an
opportunity to review 1,150 pages of documents recently provided by the state.

       The district court accepted Sellers’s claims that his post-conviction counsel
failed to respond to him or provide him any documents as true, but nonetheless
dismissed the petition as untimely. According to the district court, no extraordinary
circumstances beyond Sellers’s control kept him from timely filing his petition. The
dismissal of Sellers’s petition as untimely effectively mooted his request for additional
time to review the state’s discovery. This appeal followed.

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                                       ANALYSIS

       Both parties agree that Sellers filed his § 2254 petition outside of the one-year
limitations period, and thus it will be considered time-barred unless the statute of
limitations is equitably tolled. In our circuit, equitable tolling is available for habeas
petitions where “extraordinary circumstances beyond a prisoner’s control make it
impossible to file a petition on time.” Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th
Cir. 2000). Where, as here, the district court grants or denies equitable tolling based
on accepted or undisputed facts, we review that decision de novo. United States v.
Martin, 408 F.3d 1089, 1093 (8th Cir. 2005); Jihad v. Hvass, 267 F.3d 803, 806 n.3
(8th Cir. 2001).

       Sellers asserts that he could not timely file a habeas petition because his state
post-conviction attorney failed to communicate with him and did not send his case
file. We have held that “[i]neffective assistance of counsel generally does not warrant
equitable tolling.” Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002); accord Martin,
408 F.3d at 1093 (“Ineffective assistance of counsel, where it is due to an attorney’s
negligence or mistake, has not generally been considered an extraordinary
circumstance in this regard.”). Having carefully reviewed the record of this case, we
find nothing that would permit us to depart from our general rule here.

       Sellers seems to accept that he cannot prevail under our circuit’s “extraordinary
circumstances” approach to determining whether equitable tolling ought to apply to
a habeas petitioner. (See, e.g., Appellant’s Br. at 10 (“The equitable tolling law in the
Eighth Circuit . . . is not cited here.”).) Rather, he urges us to abandon our precedent
and instead adopt the Sixth Circuit’s framework. See, e.g., Dunlap v. United States,
250 F.3d 1001, 1008 (6th Cir. 2001) (considering five factors in order to determine
whether a petitioner is entitled to equitable tolling). We decline to accept Sellers’s
invitation to adopt the Sixth Circuit position. It is axiomatic that one panel of the
circuit is not at liberty to overrule another, see, e.g., Singleton v. Norris, 108 F.3d 872,

                                            -3-
873 (8th Cir. 1997), and that is precisely what we would have to do by substituting the
Sixth Circuit’s five-factor analysis for our “extraordinary circumstances” approach.



        Sellers asserts that the Supreme Court’s recent opinion in Rhines v. Weber, 125
S. Ct. 1528 (2005), effectively rejects the “extraordinary circumstances” approach to
equitable tolling. We disagree. Rhines did not involve equitable tolling; it concerned
what federal courts should do when presented with habeas petitions that contain both
exhausted and unexhausted claims. 125 S. Ct. at 1531. Justice O’Connor, writing for
the Court, recognized that given the one-year statute of limitations for federal filings,
a habeas petitioner who presents a mixed petition is put in a quandary: if the federal
court dismisses the petition so that the person can litigate the unexhausted claims in
state court, the clock will tick on those claims that are already ripe for federal action;
but if the court considers only the exhausted claims, the petitioner might be losing a
chance for relief on meritorious (but unexhausted) claims. Id. at 1533. Thus, the
Court instituted a “stay and abeyance” procedure, where, if the petitioner can show
good cause for failing to exhaust the unripe claims, the federal district court is
permitted to stay the federal habeas proceeding (which stops the statute of limitations
clock) and let the petitioner litigate the unexhausted claims in state court. Id. at 1535.

       Rhines does not overrule, either explicitly or implicitly, our “extraordinary
circumstances” approach to equitable tolling. It is about exhaustion of habeas claims
and how district courts should handle those issues. There is no argument in Sellers’s
case that he was late in filing because he was attempting to exhaust his state-court
claims. We adhere to our prior decisions on equitable tolling, and accordingly affirm
the district court’s holding that Sellers’s petition was untimely.

      Sellers also argues the district court erred in denying his request for a
continuance to review the state’s discovery. District courts possess “broad discretion”
in determining whether to grant a continuance, Morris v. Slappy, 461 U.S. 1, 11

                                           -4-
(1983), and we review the denial of a motion to continue for an abuse of that
discretion, United States v. Yockel, 320 F.3d 818, 827 (8th Cir. 2003). In considering
whether a continuance is warranted, the court must consider: (1) the nature of the case
and whether the parties have had adequate time to prepare, (2) diligence of the moving
party, (3) whether the opposing party’s actions have contributed to the need for a
continuance, (4) whether the delay will seriously affect the case, and (5) the reason
given for the need to continue matters. Yockel, 320 F.3d at 827.

       The specific reason given by Sellers for his continuance request disposes of this
claim of error. He asserted that he needed additional time to review the state’s
discovery so that he could find more support for his equitable tolling argument. The
district court, however, accepted his assertions in support of equitable tolling that his
previous lawyer failed to communicate or grant him access to case files. Since the
district court assumed all of the facts in Sellers’s favor, he was not prejudiced by the
failure to grant a continuance that he requested solely to find support for his claims.

                                   CONCLUSION

      For the reasons stated above, we affirm the district court.
                       ______________________________




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