                                                  Filed:   September 4, 2003

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                                 No. 01-12
                               (CA-00-137-1)



Kenneth Bernard Rouse,

                                                    Petitioner - Appellant,

           versus


R. C. Lee, etc.,

                                                       Respondent - Appellee.



                                   O R D E R



     The   court    amends   its   opinion     filed   August   11,   2003,   as

follows:

     On page 28, first full paragraph, line 7 -- the phrase “an

African-American man” is changed to read “a man.”

                                               For the Court - By Direction




                                               /s/ Patricia S. Connor
                                                        Clerk
             OPINION ON REHEARING EN BANC

                           PUBLISHED

            UNITED STATES COURT OF APPEALS

                  FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
KENNETH BERNARD ROUSE,
     Petitioner-Appellant,

      v.                                                 No. 01-12

R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
      Respondent-Appellee.
4444444444444444444444444444444444444444444444448

            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
             N. Carlton Tilley, Jr., Chief District Judge.
                           (CA-00-137-1)

                      Argued: April 2, 2003

                    Decided: August 11, 2003

  Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
NIEMEYER,GREGORY,
            WILLIAMS,andMICHAEL,
                           SHEDD, MOTZ,
                                    Circuit Judges.
                                             TRAXLER, KING,

____________________________________________________________

Affirmed by published opinion. Judge Williams wrote the majority
opinion, in which Chief Judge Wilkins and Judges Widener, Wilkin-
son, Niemeyer, Traxler, and Shedd concurred. Judge Motz wrote a
separate dissenting opinion in which Judges Michael, King, and Greg-
ory joined.

____________________________________________________________
                            COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, MAHER,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appel-
lant. Clarence Joe DelForge, III, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Robert M. Hurley, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant. Roy Cooper, Attorney General, William N. Farrell, Jr.,
Senior Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

____________________________________________________________

                              OPINION

WILLIAMS, Circuit Judge:

    A North Carolina jury convicted Kenneth Rouse of first-degree
murder, robbery with a dangerous weapon, and attempted first-degree
rape. Following a capital sentencing proceeding, the jury recom-
mended the death penalty. Rouse was then sentenced to death for
first-degree murder, forty years' imprisonment for armed robbery, and
twenty years' imprisonment for attempted first-degree rape. More
than one year after exhausting all state remedies, Rouse filed a peti-
tion for a writ of habeas corpus in the United States District Court for
the Middle District of North Carolina.1 The district court dismissed
Rouse's petition as untimely pursuant to the one-year statute of limi-
tations in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See 28 U.S.C.A. § 2244(d) (West 1994 & Supp. 2003).
   Rouse appeals the district court's determination that neither statu-
tory tolling nor equitable tolling of the AEDPA limitations period
operated to render his federal habeas petition timely filed. Sitting en
banc, we hold that Rouse's federal habeas petition was filed after the
expiration of the 1-year AEDPA limitations period, including statu-
tory tolling, and that because he has not shown any extraordinary cir-
cumstances beyond his control that prevented him from complying
with the statute of limitations, he is not entitled to equitable tolling.
Accordingly, we affirm the district court's dismissal of Rouse's peti-
tion as untimely.
____________________________________________________________
   1
     Rouse named R.C. Lee, Warden of Central Prison, as the Respondent
in his petition. For ease of reference, we refer to Respondent as "the
State."

                                  2
                                  I.

                                 A.

   In March 1992, Rouse was convicted of first-degree murder, armed
robbery, and attempted first-degree rape. The relevant facts underly-
ing petitioner's conviction are succinctly set forth in the Supreme
Court of North Carolina's opinion affirming Rouse's conviction and
sentence on direct appeal.

         [Responding to a call,] [s]everal officers soon arrived at The
         Pantry [in Asheboro, North Carolina.] [Officer Hinshaw]
         heard a muffled sound coming from a storage room. He and
         Sergeant York, who had arrived at the scene, entered the
         room where they found defendant [Rouse] against a wall.
         Hinshaw aimed his gun at defendant, and defendant said, "I
         ain't got nothing, man."

           Defendant had blood on him, especially on the front of
         his shirt, his pants, his hands, his waist, his legs and his
         underwear. There were abrasions on his knees. His pants
         were unzipped but fastened at the top. His belt was hanging
         off. Hinshaw ordered defendant to freeze and pinned him
         behind the door. Defendant was then handcuffed and taken
         out of the room. Lieutenant Charles Bulla searched defen-
         dant in the store and found in defendant's pocket three rolls
         of pennies in a plastic container. Defendant was then taken
         away. Defendant did not resist the officers at this or any
         time. No odor of alcohol was found on defendant's breath.

          On the floor of the storage room was Hazel Colleen
         Broadway, lying in a pool of blood. She tried to tell Hin-
         shaw something but soon died. Broadway was covered in
         blood. There were handprints on her body. She was wearing
         a blouse, and her pants had been pulled down to her feet. . . .
         [She had] a knife in [her] neck. The blade part of the knife
         was bent in a ninety-degree angle just below the handle.

          More officers soon arrived at the scene who surveyed the
         store and collected evidence. The store was in disarray. A

                                  3
          cigarette stand was overturned, and cigarettes were strewn
          about the floor. The cash register was turned sideways. Two
          empty rolls for pennies were on the floor. There was some
          other debris on the floor beside a trash can and some other
          penny rolls which seemed to have been knocked out of the
          safe. The bar stool behind the cash register had some blood
          on it. There were also spots of blood near the cash register.
          ...

           . . . [B]lood on defendant's hands, shirt and underwear
          was consistent with samples of blood taken from the victim.
          ...

           [The medical examiner] concluded that the victim died as
          a result of blood loss caused by a stab wound to the left
          neck, severing the carotid artery and jugular vein. A person
          could live ten to fifteen minutes after being stabbed in that
          location. In addition to the lethal knife wound, there were
          numerous other wounds to the victim including bruises, stab
          wounds and abrasions to her neck, chest, stomach, arms,
          shoulders, thighs, knee, palm, thumb, back, and elbow.
          Many of these were consistent with a sharp cutting instru-
          ment. Other injuries were consistent with a blunt instrument.
State v. Rouse, 451 S.E.2d 543, 548 (N.C. 1994).

                                   B.

    On October 2, 1995, the United States Supreme Court denied
Rouse's petition for a writ of certiorari. On April 19, 1996, Rouse
filed a motion for appropriate relief (MAR) and over 100 pages of
exhibits, including affidavits and interview transcripts, excerpts from
the trial transcript, and letters, in the North Carolina Superior Court
for Randolph County (the state MAR court). The state MAR court
denied relief on the merits. State v. Rouse, Nos. 91-CRS-3316-17, 92-
CRS-2 (N.C. Super. Ct. Aug. 2, 1996) (unpublished).2 On October 10,
____________________________________________________________
   2
     Rouse raised in the state MAR court the same claim of juror miscon-
duct that he attempts to raise in this federal habeas petition, alleging that

                                   4
1996, Rouse filed an amended MAR based on intervening legislation,3
which was also denied. At the same time, the state MAR court denied
Rouse's Motion for Production of Discovery and his motion for
reconsideration of the dismissal of the original MAR. The Supreme
Court of North Carolina granted Rouse's petition for writ of certiorari
and remanded for reconsideration of Rouse's MAR in light of two
North Carolina cases interpreting the new legislation. State v. Rouse,
510 S.E.2d 669 (N.C. 1998) (citing State v. Bates, 497 S.E.2d 276
(N.C. 1998), and State v. McHone, 499 S.E.2d 761 (N.C. 1998)). On
remand, the state MAR court again denied relief. This time, the
Supreme Court of North Carolina denied the petition for writ of cer-
tiorari by order entered February 5, 1999.4

    On February 8, 2000, Rouse filed a petition for a writ of habeas
____________________________________________________________
a juror failed to volunteer information that his mother had been the vic-
tim of a violent crime and that the same juror falsely answered voir dire
questions regarding his views on race. The state MAR court found that
the juror was never asked any individual questions regarding whether
any member of his family had been a victim of violent crime and that the
acoustics in the trial courtroom made hearing difficult, such that the juror
did not hear the questions directed to the entire group. State v. Rouse,
Nos. 91-CRS-3316-17, 92-CRS-2 (N.C. Super. Ct. Aug. 2, 1996)
(unpublished), (Supp. J.A. at 294, 297). The state MAR court also found
that defense counsel was given an unlimited opportunity to voir dire the
juror about his views on race, the juror answered all questions asked of
him, and no evidence showed that the juror lied in answering the ques-
tions or that the juror was biased at the time of voir dire. Id., (Supp. J.A.
at 294-95, 306-07). Accordingly, the state MAR court denied relief.
   3
     Specifically, the intervening legislation was "An Act to Expedite the
Postconviction Process in North Carolina," ratified by the General
Assembly on June 21, 1996. Among other things, the Act amended
N.C.G.S. § 15A-1415 to add a new subsection regarding the extent of
disclosure of prosecution and law enforcement investigative files
required in the post-conviction process in capital cases. See State v.
Bates, 497 S.E.2d 276 (N.C. 1998).
    4
      Although the date reflected in the published opinion is February 4,
1999, see State v. Rouse, 531 S.E.2d 830 (N.C. 1999), the record reflects,
and the State concedes, that the order was actually entered on February
5, 1999.

                                   5
corpus in the district court. The State filed a motion to dismiss the
petition as untimely. Pursuant to 28 U.S.C.A. § 636 (West 1993 &
Supp. 2003), the petition was referred to a United States magistrate
judge, who recommended that the district court dismiss the petition
as untimely. Rouse filed detailed objections to the magistrate judge's
recommendation, attaching several affidavits and a neuropsychologi-
cal evaluation report. The district court "reviewed [Rouse's] objec-
tions . . . de novo and [found] they do not change the substance of the
United States Magistrate Judge's rulings." (J.A. at 388.) Accordingly,
the district court affirmed and adopted the magistrate judge's rulings
and dismissed Rouse's petition as untimely. Rouse filed a motion to
alter or amend the judgment, which the district court denied. Rouse
filed a timely notice of appeal to this court.

    A panel of this court reversed the district court's dismissal. Rouse
v. Lee, 314 F.3d 698 (4th Cir.), vacated and reh'g en banc granted,
(4th Cir. Feb. 13, 2003). Upon the State's suggestion, a majority of
full-time, active circuit judges voted to rehear the case en banc. As
Judge King granted a certificate of appealability, we proceed to
address Rouse's statutory tolling and equitable tolling arguments
below.

                                   II.

  The timeliness of Rouse's petition is governed by the AEDPA. The
AEDPA was signed into law on April 24, 1996, and became effective
immediately. In pertinent part, it provides that:

           A 1-year period of limitation shall apply to an application
          for a writ of habeas corpus by a person in custody pursuant
          to the judgment of a State court. The limitation period shall
          run from the latest of —

           (A) the date on which the judgment became final by the
          conclusion of direct review or the expiration of the time for
          seeking such review . . . .

28 U.S.C.A. § 2244(d)(1). For prisoners, like Rouse, whose convic-
tions became final before the AEDPA was enacted, the one-year limi-

                                   6
tations period began to run on the AEDPA's effective date, and thus,
they had until April 24, 1997, absent tolling, to file their federal
habeas petitions. Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th
Cir. 2000). Rouse filed his federal habeas petition on February 8,
2000. Although the AEDPA limitations period is subject to both stat-
utory tolling and equitable tolling, see Spencer v. Sutton, 239 F.3d
626 (4th Cir. 2001), for the reasons discussed below, neither operated
to render his petition timely filed.

                      A. STATUTORY TOLLING

    The AEDPA explicitly provides that its one-year limitations period
is tolled for "[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending." 28 U.S.C.A. § 2244(d)(2).
"[U]nder § 2244(d)(2) the entire period of state post-conviction pro-
ceedings, from initial filing to final disposition by the highest state
court (whether decision on the merits, denial of certiorari, or expira-
tion of the period of time to seek further appellate review), is tolled
from the limitations period for federal habeas corpus petitioners . . . ."
Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). As there is no ques-
tion that Rouse's MAR was "properly filed," and it is undisputed that
Rouse's MAR was "pending" as of the AEDPA's effective date, the
issue is when Rouse's MAR ceased to be pending before the highest
state court. See id.
    The district court held that Rouse's state post-conviction review
was no longer pending once the Supreme Court of North Carolina
denied certiorari on February 5, 1999. Accordingly, the one-year stat-
ute of limitations period ended on February 5, 2000, which being a
Saturday, meant that Rouse had until February 7, 2000, to file his fed-
eral habeas petition. See Fed. R. Civ. P. 6(a). Because Rouse did not
file his federal habeas petition until February 8, 2000, the district
court concluded that the petition was untimely. Rouse argues that his
MAR remained pending after February 5, 1999, and thus, that he is
entitled to additional statutory tolling. We review the district court's
legal conclusions de novo. Monroe v. Angelone, 323 F.3d 286, 299
(4th Cir. 2003).

                                   7
        1. North Carolina Rule of Appellate Procedure 32(b)

    Rouse argues that his MAR remained pending for twenty days after
the state court denied certiorari, until February 25, 1999, because
North Carolina Rule of Appellate Procedure 32(b) requires that unless
"a court orders otherwise, its clerk shall enter judgment and issue the
mandate of the court 20 days after the written opinion of the court has
been filed with the clerk." N.C. R. App. P. 32(b). One would not
expect a mandate to issue from a denial of certiorari, however, as
there is no action for the lower court to take once the petition for writ
of certiorari is denied. See Black's Law Dictionary 962 (6th ed. 1990)
(providing relevant definition of "mandate" as"[a] precept or order
issued upon the decision of an appeal or writ of error, directing action
to be taken, or disposition to be made of case, by inferior court. Offi-
cial mode of communicating judgment of appellate court to lower
court, directing action to be taken or disposition to be made of cause
by trial court."). Nor would one expect a judgment to be entered, as
a denial of certiorari is a refusal to determine the rights and obliga-
tions of the parties. See id. at 841-42 (providing relevant definition of
"judgment" as "[t]he final decision of the court resolving the dispute
and determining the rights and obligations of the parties"); see also
Felton v. Barnett, 912 F.2d 92, 94 (4th Cir. 1990) (holding that a "de-
nial of . . . a writ [of certiorari from the Supreme Court of North Caro-
lina] is not a judgment but is simply a refusal to hear the appeal"). In
fact, as the clerk of the Supreme Court of North Carolina explained
in an affidavit, the general practice of that court is that Rule 32(b)
mandates do not issue after summary denials of certiorari. More
importantly, Rouse has submitted no evidence that any mandate ever
issued in his case. Thus, Rule 32(b) clearly did not apply.

        2. North Carolina Rule of Appellate Procedure 31(g)
   Rouse argues that his petition remained pending during the period
in which he could have sought rehearing from the Supreme Court of
North Carolina. While it is correct that an application for state collat-
eral review remains pending during the time to seek further review in
the state courts, "until the application has achieved final resolution
through the State's post-conviction procedures," Carey v. Saffold, 536
U.S. 214, 220 (2002), North Carolina law does not support Rouse's

                                   8
argument that he could have sought rehearing from the Supreme
Court of North Carolina.

    Under North Carolina law, a MAR is part of the original action,
and thus, criminal in nature. N.C. Gen. Stat. § 15A-1411(b). Petitions
for rehearing were not (and are not) available in criminal proceedings.
N.C.R. App. P. 31(g). Because no rehearing was available, there was
no period following the denial of certiorari during which Rouse could
have sought rehearing. Rouse contends that, notwithstanding Rule
31(g), rehearing was available because the Supreme Court of North
Carolina has "used its discretionary authority to reconsider denials" of
such petitions. (Reply Br. at 10.) Rouse, however, did not seek such
review. Moreover, the fact that North Carolina sometimes suspends
or creates exceptions to its procedural rules does not mean that the
state proceeding was "pending." Cf. Carey, 536 U.S. at 223-25 (not-
ing that there would be no tolling of the statute of limitations during
time that a prisoner might file a petition for an original writ of habeas
corpus in a state supreme court where the original writ procedure is
only exercised in extraordinary cases); Allen v. Mitchell, 276 F.3d
183, 185-86 (4th Cir. 2001) (no tolling of statute of limitations for
time after appeal period ended and before untimely petition was actu-
ally under consideration by state court even though "state courts fre-
quently suspend or create exceptions to their procedural rules, and . . .
review may therefore be available even after deadlines have expired"
and even though the state court did in fact consider the untimely peti-
tion for appellate review). Thus, Rule 31(g), like Rule 32(b), does not
extend the pendency of Rouse's state post-conviction review.

                  3. Federal Rule of Civil Procedure 6(e)
    Though not an argument for statutory tolling per se, Rouse argues
that the "mailbox rule," Federal Rule of Civil Procedure 6(e), explic-
itly extends the 1-year AEDPA limitations period by three days.
Rouse's argument has two fatal flaws.

   First, Rule 6(e) applies only to parties.5 During the running of the
____________________________________________________________
   5
       At the time Rouse filed his petition, Rule 6(e) stated in its entirety:

            Whenever a party has the right or is required to do some act or
            take some proceedings within a prescribed period after the ser-

                                      9
statute of limitations, Rouse was not a party to any federal proceed-
ing. See Clay v. United States, 199 F.3d 876, 880 (6th Cir. 1999)
("[B]y its plain language, Rule 6(e) provides additional time only for
`a party.' . . . Rule 6(e) and the three-day extension it provides have
consistently been held to be inapplicable to jurisdictional periods for
commencing a proceeding in the district court.").

    Second, Rule 6(e) provides a party three additional days only when
that party "has the right or is required to [take some action] within a
prescribed period after the service of a notice or other paper upon the
party." The limitations period of the AEDPA, however, runs from
"the date on which the judgment became final," 28 U.S.C.A.
§ 2244(d)(1)(A), not from the date on which Rouse was served with
(or, in this case, merely received) notification of the final judgment.
See Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000); see also Hill
v. Braxton, 277 F.3d 701, 704-05 (4th Cir. 2002); cf. Parker v. Bd.
of Pub. Utils., 77 F.3d 1289, 1291 (10th Cir. 1996) (holding Rule 6(e)
inapplicable to the ten-day period specified by Federal Rule of Civil
Procedure 59(e), because that period is triggered by the entry of judg-
ment, not by service of a notice); Derrington-Bey v. D.C. Dep't of
Corr., 39 F.3d 1224, 1225 (D.C. Cir. 1994) ("Mere quotation of Rule
6(e) shows why it is inapplicable to Rule 59(e) motions. The period
for filing a Rule 59(e) motion does not—in the words of Rule 6(e)—
begin with `service of a notice.'"); Kyle v. Campbell Soup Co., 28
F.3d 928, 930 (9th Cir. 1994) ("Rule 6(e) only enlarge[s] the filing
time when the period for acting runs from the service of a notice by
mail."); 1 James W. Moore, et al., Moore's Federal Practice § 6.05[3],
at 6-35 (3d ed. 1998) ("Rule 6(e) does not apply to time periods that
begin with the filing in court of a judgment or order."). Thus, the
mailbox rule does not extend the AEDPA limitations period.

    Accordingly, Rouse's MAR was no longer pending as of February
5, 1999, and he is not entitled to statutory tolling beyond that date.
We now consider whether the district court should have applied the
doctrine of equitable tolling to deem the petition timely filed.
____________________________________________________________
          vice of a notice or other paper upon the party and the notice or
          paper is served upon the party by mail, 3 days shall be added to
          the prescribed period.

Fed. R. Civ. P. 6(e) (2000) (emphases added).

                                  10
                      B. EQUITABLE TOLLING

    "Congress enacted AEDPA to reduce delays in the execution of
state and federal criminal sentences, particularly in capital cases . . .
and to further the principles of comity, finality, and federalism."
Woodford v. Garceau, ___ U.S. ___, 123 S. Ct. 1398, 1401 (2003)
(internal citations and quotation marks omitted). Nevertheless, we
have held that the AEDPA statute of limitations is subject to equitable
tolling. Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). As
we held in Harris, however, rarely will circumstances warrant equita-
ble tolling:

          [A]ny invocation of equity to relieve the strict application of
          a statute of limitations must be guarded and infrequent, lest
          circumstances of individualized hardship supplant the rules
          of clearly drafted statutes. To apply equity generously
          would loose the rule of law to whims about the adequacy of
          excuses, divergent responses to claims of hardship, and sub-
          jective notions of fair accommodation. We believe, there-
          fore, that any resort to equity must be reserved for those rare
          instances where—due to circumstances external to the
          party's own conduct—it would be unconscionable to
          enforce the limitation period against the party and gross
          injustice would result.
Id. Principles of equitable tolling do not extend to garden variety
claims of excusable neglect. Irwin v. Dep't of Veterans Affairs, 498
U.S. 89, 96 (1990) (equitable tolling did not apply where petitioner's
lawyer was absent from the office when the EEOC notice was
received, and petitioner filed within 30 days of the date he personally
received notice). Equitable tolling "is appropriate when, but only
when, `extraordinary circumstances beyond [the petitioner's] control
prevented him from complying with the statutory time limit.'" Spen-
cer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001) (quoting Harris, 209
F.3d at 330). Accordingly, under our existing "extraordinary circum-
stances" test, Rouse is only entitled to equitable tolling if he presents
(1) extraordinary circumstances, (2) beyond his control or external to
his own conduct, (3) that prevented him from filing on time.

   The district court held that although the 1-year AEDPA limitations
period is subject to equitable tolling, a "mistake of counsel does not

                                   11
serve as a ground for equitable tolling" as a matter of law. (J.A. at
328.) The court held that the circumstance that prevented Rouse from
filing on time, his former counsel's "slight miscalculation by relying
on Fed. R. Civ. P. 6(e)," was not an extraordinary circumstance
beyond Rouse's control, and thus, that equitable tolling did not apply.
(J.A. at 327-31.) The district court also found that Rouse's health dur-
ing the limitations period did not warrant equitable tolling because he
was not in "any way incompetent for a substantial part of the [limita-
tions period]." (J.A. at 331.)

                        1. Standard of Review

     Before reviewing the district court's decision, we consider the
proper standard of review. We have not squarely addressed the proper
standard of review of a district court's denial of equitable tolling in
the habeas context.6 In Harris v. Hutchinson, 209 F.3d 325 (4th Cir.
2000), the case in which we held that a habeas corpus action brought
under § 2244 is subject to equitable tolling, not surprisingly, there is
no mention of the standard of review. In our first habeas case apply-
ing equitable tolling post-Harris, Minter v. Beck, 230 F.3d 663 (4th
Cir. 2000), we held, without any discussion of the proper standard of
review, that "the district court abused its discretion" in tolling the stat-
ute of limitations. Id. at 667. In our next, and most recent, case con-
sidering equitable tolling in a habeas case, Spencer v. Sutton, 239
F.3d 626 (4th Cir. 2001), we held, again with no discussion of the
standard of review, that the district court "erred" in tolling the statute.
Id. at 631. Accordingly, we seem not to have established whether
abuse of discretion or de novo review applies. See Brecht v.
Abrahamson, 507 U.S. 619, 630-31 (1993) ("Although we have
applied the Chapman standard in a handful of federal habeas cases,
we have yet squarely to address its applicability on collateral review.
. . . [S]ince we have never squarely addressed the issue, and have at
most assumed the applicability of the Chapman standard on habeas,
we are free to address the issue on the merits.").
____________________________________________________________
   6
     In the non-habeas context, we review the district court's denial of
equitable tolling for an abuse of discretion. See, e.g., Chao v. Va. Dep't
of Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).

                                   12
    The other circuits are divided on the proper standard of review,
with some applying abuse of discretion and others applying de novo
review.7 Several circuits provide for de novo review in certain cir-
cumstances, for instance where the facts are undisputed8 and the dis-
trict court denied equitable tolling as a matter of law, and abuse of
discretion review in all other circumstances.9 We think this is the bet-
ter course. Accordingly, where the relevant facts are undisputed and
the district court denied equitable tolling as a matter of law, we
review the district court's decision de novo. In all other circum-
stances, we review the denial of equitable tolling for an abuse of dis-
cretion.
____________________________________________________________
   7
     Compare Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir. 2002)
(applying abuse of discretion review), cert. denied, ___ U.S. ___, 123
S. Ct. 1621 (2003); Delaney v. Matesanz, 264 F.3d 7, 13 (1st Cir. 2001)
(same); and Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.
2001) (same), cert. denied, 535 U.S. 973 (2002), with Helton v. Sec'y for
Dep't of Corrections, 259 F.3d 1310, 1312 (11th Cir. 2001) (applying de
novo review); United States v. Saro, 252 F.3d 449, 455 n. 9 (D.C. Cir.
2001) (same), cert. denied, 534 U.S. 1149 (2002); Jihad v. Hvass, 267
F.3d 803, 806 n. 3 (8th Cir. 2001) (same); Dunlap v. United States, 250
F.3d 1001, 1007 n. 2 (6th Cir.) (same), cert. denied, 534 U.S. 1057
(2001); and Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999) (same).
    8
      Because we review this case on appeal from the district court's grant
of the State's motion to dismiss, we, like the district court, must assume
all facts pleaded by Rouse to be true. Trulock v. Freeh, 275 F.3d 391,
399 (4th Cir. 2001).
    9
      See United States v. Saro, 252 F.3d at 455 n.9 (examining "whether
the court was `correct,' rather than whether it`abused its discretion,'
because we employ de novo review when a district court holds . . . that
the facts cannot justify equitable tolling as a matter of law"); Jihad v.
Hvass, 267 F.3d at 806 n.3 (applying de novo review because district
court treated equitable tolling as an issue of law); Dunlap v. United
States, 250 F.3d at 1007 n.2 ("[W]e hold that where the facts are undis-
puted or the district court rules as a matter of law that equitable tolling
is unavailable, we apply the de novo standard of review to a district
court's refusal to apply the doctrine of equitable tolling; in all other
cases, we apply the abuse of discretion standard."); Miles v. Prunty, 187
F.3d at 1105 ("[W]here, as here, the facts are undisputed as to the ques-
tion of equitable tolling, we review de novo.").

                                  13
   2. Whether Extraordinary Circumstances Beyond Rouse's Control
               Prevented Him From Filing On Time

    Turning to Rouse's arguments, he first argues that his medical con-
dition during the limitations period is an extraordinary circumstance
beyond his control that prevented him from filing on time, thus war-
ranting equitable tolling. Because Rouse simply provides no reason
why his medical condition barred him from filing his habeas petition
at least one day earlier, we hold that the district court did not abuse
its discretion in denying equitable tolling on this basis.10

    Second, Rouse contends that the "gross negligence and unprofes-
sional conduct" of his former habeas counsel in "misinterpret[ing] the
statutory requirements" constitutes an extraordinary circumstance
beyond his control that prevented him from filing on time. (Appel-
lant's Br. at 25, 27-28.) The errors of Rouse's former counsel, how-
ever, were neither extraordinary nor, for purposes of our inquiry,
external to Rouse's own conduct.

   We review de novo the district court's denial of equitable tolling
on this basis because the district court held that, as a matter of law,
a "mistake of counsel does not serve as a ground for equitable toll-
ing." (J.A. at 328.) This circuit has held that "a mistake by a party's
counsel in interpreting a statute of limitations does not present the
extraordinary circumstance beyond the party's control where equity
should step in to give the party the benefit of his erroneous under-
standing." Harris, 209 F.3d at 331. A majority of other circuits agree.
See Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003)11 (applying
____________________________________________________________
   10
      Abuse of discretion review applies because the district court found
that, accepting all of the facts Rouse pled about his health to be true, his
medical condition did not amount to an extraordinary circumstance
beyond his control that prevented him from filing because he was not in
"any way incompetent for a substantial part of the [limitations period]."
(J.A. at 331.)
   11
      Although the Third Circuit allowed equitable tolling based on attor-
ney error in Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S.
944 (2001), it was not based on a finding that the attorney error consti-
tuted extraordinary circumstances. Instead, the Third Circuit created a
different test that applies only to capital cases. We address the Third Cir-
cuit's holding in Fahy below.

                                   14
general rule that "attorney error, miscalculation, inadequate research,
or other mistakes have not been found to rise to the`extraordinary'
circumstances required for equitable tolling" (internal quotation
marks omitted)); Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002)
("Ineffective assistance of counsel generally does not warrant equita-
ble tolling."); Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002)
("[C]ounsel's erroneous interpretation of the statute of limitations
provision cannot, by itself, excuse the failure to file [the] habeas peti-
tion in the district court within the one-year limitations period.");
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001)
("[A]ttorney error [is] inadequate to create the `extraordinary' circum-
stances equitable tolling requires."); Frye v. Hickman, 273 F.3d 1144,
1146 (9th Cir. 2001) ("We conclude that the miscalculation of the
limitations period by Frye's counsel and his negligence in general do
not constitute extraordinary circumstances sufficient to warrant equi-
table tolling."); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999)
(holding that a lawyer's miscalculation of the limitation period was
not a valid basis for equitable tolling); Sandvik v. United States, 177
F.3d 1269, 1272 (11th Cir. 1999) (refusing to apply equitable tolling
where late filing was caused by attorney's use of ordinary mail to
send petition less than a week before it was due); Gilbert by Gilbert
v. Sec. of Health & Human Servs., 51 F.3d 254, 257 (Fed. Cir. 1995)
("The negligence of Gilbert's attorney does not justify applying equi-
table tolling."). As further support for the proposition that attorney
error is not an extraordinary circumstance, attorney error during
habeas proceedings is not itself a ground for relief in a § 2254 pro-
ceeding. See 28 U.S.C.A. § 2254(i) (West Supp. 2002) ("The ineffec-
tiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a pro-
ceeding arising under section 2254.").

   Moreover, the actions of Rouse's attorneys are attributable to
Rouse, and thus, do not present "circumstances external to the party's
own conduct," Harris, 209 F.3d at 330. Rouse's argument that the
errors of his former habeas counsel are external to his conduct
because he did not participate in their decisions misses the mark. For-
mer counsel's errors are attributable to Rouse not because he partici-
pated in, ratified, or condoned their decisions, but because they were
his agents, and their actions were attributable to him under standard

                                   15
principles of agency.12 See Coleman v. Thompson, 501 U.S. 722, 753-
54 (1991) (explaining that attorney error, short of ineffective assis-
tance of counsel, is, under standard principles of agency, attributable
to the client); Murray v. Carrier, 477 U.S. 478, 488 (1986) ("[A]
defendant [who] is represented by counsel whose performance is not
constitutionally ineffective . . . bear[s] the risk of attorney error
. . . ."); see also Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 92
(1990) ("Under our system of representative litigation, each party is
deemed bound by the acts of his lawyer-agent and is considered to
have notice of all facts, notice of which can be charged upon the attor-
ney." (internal quotation marks omitted)).13

   In both Carrier and Coleman, the Supreme Court considered
____________________________________________________________
    12
       The dissent contends that Rouse's former habeas counsel were not
his agents because of Rouse's limited mental ability and because of the
"bewildering complexity of the habeas corpus rules." Post at 31 n.3. We
have found no support for the proposition that, during the course of rep-
resentation, lawyers are only sometimes the agents of their clients. Based
on a post-indictment neuropsychological evaluation of Rouse, the state
trial court found that Rouse was competent to stand trial. Rouse does not
challenge this finding, and the dissent does not suggest that Rouse at
some later time became incompetent. It is undisputed that Rouse did not
seek to represent himself in filing his federal habeas petition. Instead,
Rouse knowingly and voluntarily chose to be represented by counsel,
and he bears the risk of the error of that counsel. See Murray v. Carrier,
477 U.S. 478, 482, 487 (1986) (habeas petitioner was bound by court-
appointed attorney's failure to raise argument in state court even though
attorney submitted petition without consulting petitioner and the omis-
sion was inadvertent).
    13
       Rouse argues that he did not "condone, ratify, encourage, or other-
wise agree" with the late filing. (J.A. at 356.) As discussed in the text,
whether Rouse participated in the decision is irrelevant. Moreover, the
costs of undermining the statute of limitations would be the same if the
error "stem[med] from counsel's ignorance or inadvertence rather than
from a deliberate decision." Carrier, 477 U.S. at 487. Thus, viewing the
facts in the light most favorable to Rouse, assuming that he relied on
counsel to timely file his petition and that he did not participate in any
decision to file on February 8, he nonetheless is not entitled to equitable
tolling because he bears the risk of attorney error, and such error is attrib-
utable to him.

                                   16
whether an attorney's error constituted cause for a procedural default,
which like equitable tolling, requires a showing that "some objective
factor external to the defense impeded counsel's efforts to comply
with the State's procedural rule." Carrier, 477 U.S. at 488. The Court
held that "[a]ttorney ignorance or inadvertence is not `cause' because
the attorney is the petitioner's agent when acting, or failing to act, in
furtherance of the litigation, and the petitioner must `bear the risk of
attorney error.'" Coleman, 501 U.S. at 753 (quoting Carrier, 477 U.S.
at 488). Attorney error that constitutes ineffective assistance of coun-
sel is not attributable to the petitioner. This is so, however, "not
because . . . the error is so bad that `the lawyer ceases to be an agent
of the petitioner,'" but rather, because "`the Sixth Amendment itself
requires that responsibility for the default be imputed to the State.'"
Id. at 754 (quoting Carrier, 477 U.S. at 488). Thus, the Coleman
Court held that attorney error during state habeas proceedings was not
"cause" because "[t]here is no constitutional right to an attorney in
state post-conviction proceedings . . . [and] [c]onsequently, a peti-
tioner cannot claim constitutionally ineffective assistance of counsel
in such proceedings." Id. at 752.

    Similarly, Rouse had no constitutional right to counsel in his fed-
eral habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551,
555-56 (1987) (no constitutional right to counsel beyond first appeal
of right), Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir. 1995) (no consti-
tutional right to counsel during federal habeas). Rouse did have a stat-
utory right to counsel, see 21 U.S.C.A. § 848(q)(4) (West 1999), but
there can only be constitutional ineffective assistance of counsel
where there is a constitutional right to counsel. Coleman, 501 U.S. at
752. In the absence of constitutional ineffective assistance of counsel,
attorney error is attributable to the petitioner. Id. at 753. Accordingly,
because Rouse's former habeas counsel's error cannot be constitu-
tionally ineffective, that error can "fairly be attributable" to Rouse and
is not "external" to his own conduct.14 See Coleman, 501 U.S. at 753.
____________________________________________________________
    14
       Rouse relies heavily on McLaughlin v. Lee, No. 5:99-HC-436
(E.D.N.C. Oct. 17, 2000) (unpublished), in which the district court equi-
tably tolled the one-year limitations period. In that case, McLaughlin's
attorneys, as the district court emphasized, "did not make a `mistake' as
to the statutory requirements. Instead, they failed to take any action at
all." Id. at 7. The court concluded that McLaughlin's attorneys placed

                                  17
   Because Rouse has not shown that extraordinary circumstances
beyond his control prevented him from timely filing his federal
habeas petition, the district court did not err in holding that he is not
entitled to equitable tolling under our existing "extraordinary circum-
stances" test applied in Harris v. Hutchinson and Spencer v. Sutton.
We next consider whether we should apply a different equitable toll-
ing test to this case.

            3. Whether We Should Apply A Different Test

    Rouse argues that the "significance and magnitude of the poten-
tially barred claim is a primary justification for equitable tolling,"
(Appellant's Br. at 32), and the fact that he "faces a death sentence
is an important part of the equitable tolling equation," (Appellant's
Br. at 31). It is undisputed that neither the nature of Rouse's claims
nor his sentence was a factor "beyond his control" during the limita-
tions period or was a factor that affected his ability to meet the statu-
tory deadline, and thus, these factors do not entitle Rouse to equitable
tolling under our existing "extraordinary circumstances" test because
that test requires the petitioner to present (1) extraordinary circum-
stances, (2) beyond his control or external to his own conduct, (3) that
prevented him from filing on time. Harris, 209 F.3d at 330. Thus,
Rouse is essentially arguing that we should apply a different equitable
tolling test to his case. For the reasons set forth below, we decline to
adopt an equitable tolling test that would consider a petitioner's
underlying claim or sentence.

   First, we see no reason why the decision as to whether a court con-
siders the claims in an untimely petition should depend on the nature
____________________________________________________________
him "in the extraordinary situation of believing that he had counsel
when, in fact, he had counsel in name only." Id.
   Even assuming that such utter abandonment constitutes extraordinary
circumstances "external to the party's own conduct," Harris, 209 F.3d at
330, justifying equitable tolling, those circumstances are not present
here. Despite Rouse's attempts to characterize his prior attorneys' con-
duct as "grossly negligent" and thus akin to such abandonment, it is sim-
ply not true that Rouse's attorneys took no action at all. They filed the
petition, albeit one day late. Theirs was an ordinary legal error to which
the principles of equitable tolling do not apply.

                                   18
of the claims in the petition. Allowing consideration of the merits of
time-barred claims to creep into the equitable tolling analysis lets
petitioners effectively circumvent the statute of limitations because
the merits of their claims will always be considered. This would
enable petitioners who were in no way prevented from complying
with the statute of limitations to create delay and undermine finality
— two of the reasons that precipitated enactment of the AEDPA stat-
ute of limitations. As discussed below, we reject Rouse's invitation
to apply equitable tolling based on a factor that had nothing to do with
his failure to file on time.

   Rouse claims that Justice Stevens's concurrence in Duncan v.
Walker, 533 U.S. 167, 182 (2001) (Stevens, J., concurring), suggests
that the seriousness of a potential constitutional violation would be a
sound basis for equitable tolling. The concurrence, however, does not
make any such suggestion. The concurrence notes that when a peti-
tion containing unexhausted claims is filed within the limitations
period, "there is no reason why a district court should not retain juris-
diction over a meritorious claim and stay further proceedings pending
the complete exhaustion of state remedies." Duncan, 533 U.S. at 182-
83 (Stevens, J., concurring). The concurrence also observes that the
Duncan majority did not "preclude[ ] a federal court from deeming
the limitations period tolled [when a petition containing unexhausted
claims is filed within the 1-year limitations period] as a matter of
equity." Id. at 183 (internal citations omitted). In other words, the
concurrence suggests that equitable tolling might be appropriate based
on the filing of a petition, albeit an improper petition containing unex-
hausted claims, within the time period, not that the nature of the
claims is a sound basis for equitable tolling. Rouse did not file any
federal habeas petition within the limitations period, let alone one
containing exhausted and unexhausted claims, so the situation con-
templated by the Duncan concurrence is not before us.

   Rouse also relies on Baskin v. United States, 998 F. Supp. 188,
189-90 (D. Conn. 1998), but it does not provide any more support
than does the Duncan concurrence. In Baskin, the petitioner alleged
that his federal habeas petition was late because his trial counsel
never informed him that the United States Supreme Court denied his
petition for certiorari. The court held that "[i]t would be grossly ineq-
uitable to bar petitioner's ineffective assistance of counsel claim on

                                   19
the basis that counsel's error permitted the statute of limitations to
run." Id. at 190. This is not a suggestion that the merits of the underly-
ing claim is a reason to grant equitable tolling. Instead, the court rec-
ognized that, as we discussed above, if trial counsel's error
constituted constitutional ineffective assistance of counsel, then coun-
sel's error is not attributable to the petitioner pursuant to Coleman and
Carrier. For the reasons discussed in Section B.2, however, Rouse's
former habeas counsel's error is attributable to Rouse.

    Finally, my dissenting colleagues rely on Lonchar v. Thomas, 517
U.S. 314, 320 (1996), to contend that "the strength of the claims in
a habeas petition must inform a court's decision to exercise its equita-
ble power to toll limitations."15 Post at 33. But Lonchar, a pre-
AEDPA case, has nothing at all to do with equitable tolling, and it
certainly does not hold that we should consider the strength of the
claims in a habeas petition when deciding whether equitable tolling
is appropriate.16 To the extent that Lonchar informs the analysis, how-
ever, it reinforces our belief that we should follow our equitable toll-
____________________________________________________________
   15
      It seems curiously circular to say, as it appears my dissenting col-
leagues would, that we consider the merits in deciding whether we can
consider the merits. We note, however, that even if we were to agree that
the strength of the claims in a petition should affect a court's decision to
invoke equitable tolling, Rouse's claims, evaluated in light of the defer-
ence that we statutorily are required to give to state court factual findings
and conclusions of law, are far from strong. See 28 U.S.C.A. §§ 2254(d),
(e)(1); see also Rouse v. Lee, 314 F.3d 698, 719-20 (4th Cir. 2003)
(vacated panel opinion) (Williams, J., dissenting) (discussing factual
findings and conclusions of law of the state MAR court). The dissent
concludes otherwise by relying solely on Rouse's allegations, giving
short shrift to the factual findings of the state MAR court and the defer-
ence federal habeas courts owe to state courts. As noted supra at 4 and
note 2, the state MAR court rejected Rouse's juror misconduct claim
after considering over 100 pages of evidence. Contrary to the dissent's
assertion, post at 32-33 n.4, the state MAR court's factual findings were
based on the evidence that Rouse and the State presented to the court and
judicial notice regarding the acoustics in the trial courtroom. These fac-
tual findings are presumed correct. 28 U.S.C.A. § 2254(e)(1).
   16
      Contrary to the dissent's assertion, post at 33, Spencer v. Suttondoes
not suggest that the strength of the claim in a habeas petition affects the
decision whether to equitably toll the limitations period.

                                   20
ing decisions that restrict equitable tolling to narrow circumstances
not present in this case. See Cantu-Tzin v. Johnson, 162 F.3d 295, 298
(5th Cir. 1998) ("[C]onfirmation that a statutory limitations period
should be enforced appears in the Supreme Court's . . . decision in
Lonchar v. Thomas . . . .").

    At issue in Lonchar was whether "the Court of Appeals properly
dismiss[ed] [a] first habeas petition for special ad hoc `equitable' rea-
sons not encompassed within the framework of [Habeas Corpus] Rule
9." Lonchar, 517 U.S. at 322. In concluding that the court of appeals
had erred, the Supreme Court stressed that "Congress and the framers
of the Rule" undertook a balancing of interests, "which courts may not
undermine through the exercise of background equitable powers." Id.
at 327 (emphasis added); see Cantu-Tzin, 162 F.3d at 298 ("The tenor
of the majority discussion in Lonchar is that federal courts should not
intervene to create equitable reasons for denying stays of execution
when federal law and the habeas rules have prescribed principles
applicable to the complex mix of equities in capital cases."). Here, no
less, by enacting the AEDPA, Congress has balanced the competing
interests — a balance embodied in section 2244(d), which provides
a 1-year limitation period and explicitly specifies conditions under
which that period should be tolled. We may not amend that statute
"through . . . ad hoc judicial exception." Lonchar, 517 U.S. at 328.
While we have already held that equitable tolling applies to the
AEDPA when extraordinary circumstances beyond the petitioner's
control prevent him from filing a timely petition, see Harris, 209 F.3d
at 329-30, we must refrain from ad hoc alteration of the statutory
command. The doctrine of equitable tolling is not a license to suspend
enactments of Congress whenever we happen to believe that enforce-
ment of a limitations period would create a hardship. See id. (caution-
ing that "any invocation of equity to relieve the strict application of
a statute of limitations must be guarded and infrequent, lest circum-
stances of individualized hardship supplant the rules of clearly drafted
statutes").17
____________________________________________________________
   17
      As the dissent points out, the Federal Rules Governing Section 2254
Cases support the conclusion that the merits of the underlying claim are
not part of the equitable tolling analysis. See post at 28-29 n.1. Because
the State does not file a copy of the decision of the state post-conviction

                                  21
    My dissenting colleagues correctly point out that Rouse's petition
was filed only one day late and argue that "the most minor procedural
default imaginable" should not bar federal habeas review in light of
what they consider to be his "facially strong constitutional claim."
Post at 34. We recognize that "[a]t the margins, all statutes of limita-
tions and filing deadlines appear arbitrary." Lookingbill v. Cockrell,
293 F.3d 256, 264-65 (5th Cir. 2002) (declining to equitably toll when
the petition was only four days late); cf. Spencer, 239 F.3d at 631
(declining to equitably toll when the petition was only five days late).
Failure to adhere to the AEDPA's precise filing deadlines, however,
even "by only a few days," "would make navigating [the] AEDPA's
timetable impossible. Such laxity would reduce predictability and
would prevent us from treating the similarly situated equally." Look-
ingbill, 293 F.3d at 265. Accordingly, we look not to the length of the
delay, but to the reasons for delay in determining whether equitable
tolling is appropriate.

    Turning to the argument that the nature of Rouse's sentence should
affect the equitable tolling analysis, both Rouse and the dissent argue
that we should follow the Third Circuit's decision in Fahy v. Horn,
240 F.3d 239 (3d Cir. 2001), and allow "`less than "extraordinary"
circumstances to trigger equitable tolling'" in capital cases because
"death is different." (Appellant's Br. at 31 (quoting Fahy, 240 F.3d
at 245)); post at 38-39. Neither Supreme Court precedent nor prece-
dent from this court supports applying a different test to capital cases
on collateral review.

    Although Rouse's underlying claims pertain to his trial, we deal
here only with the application of the AEDPA limitations period.
While it is undeniable that the Supreme Court has treated death differ-
____________________________________________________________
court in the federal district court until it files its answer, Fed. R. Govern-
ing Section 2254 Cases 5, a motion to dismiss a petition as untimely will
often be before the federal district court before the state post-conviction
decision is filed. Thus, the Rules contemplate that the federal court may
rule without considering the merits because the court certainly could not
consider the merits of the underlying claims without the benefit of the
state post-conviction decision, to which federal habeas courts owe con-
siderable deference. 28 U.S.C.A. §§ 2254(d), (e)(1).

                                  22
ently, any distinctions between the procedures required in capital and
noncapital cases "are primarily relevant to trial," and the Supreme
Court "has generally rejected attempts to expand any [such] distinc-
tions further."18 Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,
281 (1998) (plurality opinion); see, e.g., Herrera v. Collins, 506 U.S.
390, 405 (1993); Murray v. Giarratano, 492 U.S. 1, 8-10 (1989) (plu-
rality opinion); Satterwhite v. Texas, 486 U.S. 249, 256-58 (1988);
Smith v. Murray, 477 U.S. 527, 538-39 (1986). The Court has, for
example, refused to create a special death penalty exception to the tra-
ditional harmless error standard of appellate review set forth in Chap-
man v. California, 386 U.S. 18 (1967). See Satterwhite, 486 U.S. at
256-58. Satterwhite illustrates that even though capital defendants
might be entitled to heightened procedural safeguards at trial, the
standard of appellate review does not change solely because a capital
sentence has been imposed. While recognizing that capital defendants
have a constitutional right to consult with counsel prior to submitting
to a psychiatric examination that would determine future dangerous-
ness, see id. at 254, when addressing a violation of this constitutional
____________________________________________________________
    18
       Similarly, the cases cited by the dissent, post at 35, for the proposi-
tion that "death is different" involve heightened procedures necessary at
trial or sentencing. See Ring v. Arizona, ___ U.S. ___, 122 S. Ct. 2428,
2441-42 (2002) (declining to "differentiate capital cases from all others"
and holding that "facts increasing punishment beyond the maximum
authorized by a guilty verdict standing alone . . . must be found by a
jury"); Thompson v. Oklahoma, 487 U.S. 815, 877-78 (1988) (Scalia, J.,
dissenting) (considering whether capital punishment of fifteen year old
violates Eighth Amendment); Caldwell v. Mississippi, 472 U.S. 320, 323
(1985) (holding that capital sentence is not valid "when the sentencing
jury is led to believe that responsibility for determining the appropriate-
ness of a death sentence rests not with the jury but with the appellate
court which later reviews the case"); Gardner v. Florida, 430 U.S. 349,
358 (1977) (holding that the judge cannot "impose the death sentence on
the basis of confidential information which is not disclosed to the defen-
dant or his counsel"); Woodson v. North Carolina, 428 U.S. 280, 305
(1976) (plurality opinion) (holding that mandatory death sentences for
first-degree murder are unconstitutional); Bracy v. Schomig, 286 F.3d
406, 415 (7th Cir. 2002) (en banc) (evaluating judge's actions during
sentencing phase of trial), cert. denied, ___ U.S. ___, 123 S. Ct. 169
(2002); see also Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (hold-
ing that individualized sentencing is not required for non-capital cases).

                                   23
right, the Court held that traditional harmless error analysis applied
even in the capital context. See id. at 258. That is, death made a dif-
ference in terms of what procedures the state had to employ at trial
but not in the appellate standard of review.

    In addition, the Supreme Court has repeatedly declined to treat
death differently in the post-conviction context. In Smith v. Murray,
a capital case, the Court specifically rejected the claim that the princi-
ples governing procedural default "apply differently depending on the
nature of the penalty a State imposes for the violation of its criminal
laws." Smith, 477 U.S. at 538. Similarly, in Giarratano, the Court
concluded that "the rule of Pennsylvania v. Finley [that there is no
constitutional right to counsel in state post-conviction proceedings]
should apply no differently in capital cases than in noncapital cases."
Giarratano, 492 U.S. at 10 (plurality opinion); see also Herrera, 506
U.S. at 405 (holding that claims of actual innocence are not grounds
for habeas relief even in a capital case and noting that "we have
`refused to hold that the fact that a death sentence has been imposed
requires a different standard of review on federal habeas corpus'"
(quoting Giarratano, 492 U.S. at 9 (plurality opinion))); cf. Coleman
v. Thompson, 501 U.S. 722, 750 (1991) (applying, in a capital case,
the general requirement of cause and prejudice to overcome a state
procedural bar).

   The cases cited by my dissenting colleagues are not to the contrary.
For example, quoting California v. Ramos, 463 U.S. 992, 998-99
(1983), the dissent states that "the Supreme Court has emphasized
[that] `the qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the capital
sentencing determination,' that is, `the procedure by which the State
imposes the death sentence,' to `ensur[e] that the death penalty is not
meted out arbitrarily or capriciously.'" Post at 36. As this quotation
reveals, "the Court's principal concern has been more with the proce-
dure by which the State imposes the sentence." Ramos, 463 U.S. at
999. This fits nicely with the decisions quoted above, which acknowl-
edge that heightened procedural safeguards may be necessary at trial.

   Moreover, those cases cited by the dissent that discuss appellate
decision-making do not support the dissent's position that, in capital
cases, the doctrine of equitable tolling allows courts to rewrite the

                                   24
AEDPA statute of limitations. For example, my dissenting colleagues
contend that "the Supreme Court itself has, `in the interests of justice,'
been willing to overlook requirements that it would ordinarily impose
in non-capital cases." Post at 36 (citing Eddings v. Oklahoma, 455
U.S. 104, 117 n. * (1982) (O'Connor, J., concurring)). Justice
O'Connor's discussion, however, as the dissent notes, pertained to the
question of whether an argument had been waived below, not the far
more serious matter of whether to apply a narrow equitable exception
to a statutory limitations period enacted by Congress and absolute by
its terms.19

    The dissent also quotes Justice Scalia's concurrence in Dobbs v.
Zant, 506 U.S. 357, 360 (1993): "I am willing to make an exception
from that [previously stated `general' internal] rule in capital cases —
but only where there is a realistic likelihood that the `technical error'
affected the conviction or the sentence." Post at 36 (emphasis and
alterations supplied by dissent). The "previously stated `general'
internal" rule to which the quoted passage refers, however, is simply
the Court's internal presumption against granting certiorari in cases
that have little importance beyond the parties involved; Justice Scalia
certainly did not say that exceptions should be made to the equitable
tolling analysis on habeas review of capital cases.

   In fact, relaxing the statute of limitations in capital cases would
contradict one of the main purposes of the AEDPA which was "to
reduce delays in the execution of state and federal criminal sentences,
particularly capital cases." Woodford v. Garceau, ___ U.S. ___, 123
S. Ct. at 1401 (emphasis added); see also Carey v. Saffold, 536 U.S.
214, 226 (2002) (noting the AEDPA's "statutory purpose of encour-
____________________________________________________________
   19
      The dissent also suggests that the majority opinion in Eddings v.
Oklahoma stands for the proposition that "the Court has treated the
requirement that an argument be raised below . . . as merely `techni-
cal[ ].'" Post at 36 (citingEddings majority opinion). The majority opin-
ion in Eddings stands for no such proposition. The Court did not, as is
implied by the dissent, waive the requirement that arguments be pre-
sented below in order to preserve appellate review. Instead, the Court
found "that in his petition to the Court of Criminal Appeals for a rehear-
ing, Eddings specifically presented the issue and at some considerable
length." Eddings v. Oklahoma, 455 U.S. 104, 113 n.9 (1982).

                                   25
aging prompt filings in federal court in order to protect the federal
system from being forced to hear stale claims"). An equitable tolling
analysis that encouraged judicial subversion of Congress's limitation
on federal habeas and devolved into a wide ranging inquiry into the
proceedings of the state trial court and habeas court would undermine
the "principles of comity, finality, and federalism" that animate the
AEDPA. See Williams v. Taylor, 529 U.S. 420, 436 (2000).
   Because we deal today with the district court's decision on habeas
review not to toll the AEDPA limitations period, rather than with
state capital procedures at trial or sentencing, we hold that Rouse's
death sentence does not change the test we apply to determine if equi-
table tolling is warranted.20

                                 III.

    The delay involved in filing this petition may seem small but the
principles at issue are large. My dissenting colleagues would abandon
our existing extraordinary circumstances test in favor of a wide-
ranging inquiry into a variety of factors other than the reasons why
the petitioner did not comply with the statutory time limitation. This
approach would make application of the statute of limitations to an
individual case unpredictable and indeterminate and essentially would
disregard the balance that Congress has struck between the need for
habeas review and the need for comity, finality, and federalism. In
short, we are being asked here not to follow the law, but essentially
to recreate it. For these reasons, we held in Harris v. Hutchinson, that
____________________________________________________________
    20
       Other courts have also denied equitable tolling in capital cases,
applying the same test as they apply in non-capital cases. See, e.g.,
Fierro, 294 F.3d at 682-84 (denying equitable tolling based on "mistaken
assumption" regarding statute of limitations); Lookingbill v. Cockrell,
293 F.3d 256, 263-65 (5th Cir. 2002) (denying equitable tolling for "gar-
den variety claim[s] of excusable neglect"), cert. denied, ___ U.S. ___,
123 S. Ct. 878 (2003); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.
2000) (holding that "counsel's confusion about the applicable statute of
limitations does not warrant equitable tolling"); Cantu-Tzin v. Johnson,
162 F.3d 295, 299-300 (5th Cir. 1998) (concluding that equitable tolling
of the AEDPA limitations period was not available to a petitioner who
was responsible for missing the deadline).

                                 26
"any invocation of equity to relieve the strict application of a statute
of limitations must be guarded and infrequent, lest circumstances of
individualized hardship supplant the rules of clearly drafted statutes."
Harris, 209 F.3d at 330. Because Rouse's attorneys could have filed
his petition on time, but simply failed to do so, he is not entitled to
equitable tolling.

   For the foregoing reasons, we hold that Rouse's state post-
conviction review was no longer pending as of February 5, 1999,
when the Supreme Court of North Carolina denied his petition for
certiorari, and thus, that he is not entitled to statutory tolling beyond
that date. Because he has not shown any extraordinary circumstances
beyond his control that prevented him from complying with the
AEDPA statute of limitations, he is not entitled to equitable tolling.
Accordingly, Rouse's petition was filed after the expiration of the
limitations period, and we affirm the district court's dismissal of
Rouse's petition as untimely.

                                                            AFFIRMED

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

    In this federal habeas petition, his first, Kenneth Bernard Rouse, a
prisoner under sentence of death, seeks relief on the basis of evidence
that a juror who voted to convict and execute him deliberately con-
cealed contempt for all African-Americans and a particular bias
against Rouse in order to serve on Rouse's jury. The district court
held that Rouse's former lawyers filed his habeas petition one day late
and that Rouse presented no grounds for equitably tolling the limita-
tions period and so dismissed Rouse's habeas petition as untimely.
The majority affirms. Thus, Rouse faces his death, denied all federal
habeas review and without ever having received a hearing in any
court on his disturbing evidence of juror bias. With respect, I must
dissent. If equity has any place in our habeas jurisprudence, and the
Supreme Court has long "adhered to the principle that habeas corpus
is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298,
319 (1995), then the exceptional circumstances presented in this case
demand tolling.

                                   27
                                   I.

   Eleven years ago, a North Carolina all-white jury convicted Rouse,
an African-American, of the robbery, attempted rape, and brutal mur-
der of Hazel Colleen Broadway, a sixty-three-year-old white woman.
On the jury's recommendation, the state judge sentenced Rouse to
death. After his appeal was denied, Rouse discovered new evidence
that the mother of one member of the jury had been robbed, raped,
and murdered by a man who was later executed
for the crimes. When all prospective jurors were asked for such infor-
mation at voir dire, the victim's son had remained silent.

    After serving on Rouse's jury, this juror reportedly stated that he
had intentionally concealed his mother's tragic death and carefully
crafted his other responses to voir dire questions, because he wanted
to be on the jury that judged Rouse. Moreover, this juror assertedly
expressed intense racial prejudice against African Americans, calling
them "niggers" and opining that African Americans care less about
life than white people do and that African-American men rape white
women in order to brag to their friends.

   Because the juror did not reveal his own family's tragedy or his
virulent racial prejudice, Rouse had no opportunity to object to the
juror or challenge his ability to judge and sentence Rouse impartially.
Based on this newly discovered evidence, Rouse asserted a jury bias
claim on collateral attack in state court, which twice denied his claim
without a hearing. Rouse then filed the petition giving rise to this
appeal — his first federal habeas petition — but he filed it one day
after the Antiterrorism and Effective Death Penalty Act's (AEDPA)
limitations period expired. The district court dismissed the petition as
untimely, again without a hearing.

    As his appeal reaches us, therefore, Rouse has never received, even
post-sentence, any opportunity to explore at a hearing the evidence he
proffers of appalling bias on the part of one of his jurors. Of course,
a federal court might conclude that this claim lacks merit; but at pres-
ent, no federal court has ever examined the claim.1
____________________________________________________________
   1
     Indeed, the district court could not have examined the claim in any
depth, because it rejected Rouse's petition at such an early stage that the

                                  28
                                    II.

    Although Rouse's former lawyers relied on a facially applicable
state procedural rule and federal decisions interpreting Federal Rule
of Civil Procedure 6(e) in calculating the filing deadline for his fed-
eral habeas petition, they erred and filed that petition late. But the
petition was only one day late.2 Given this and the other "extraordi-
nary and unique circumstances in his case," Rouse asks us to invoke
our equitable power to toll the statute of limitations by one day.

    The majority, however, concludes that Rouse has failed to meet the
requirements necessary for a court to equitably toll the statute of limi-
tations. According to the majority, a petitioner in Rouse's position
must demonstrate "(1) extraordinary circumstances, (2) beyond his
____________________________________________________________

decision of the state post-conviction court, the dispositive decision for
federal habeas review, was not even part of the record before the district
court. Moreover, I note that procedural decisions on limitations grounds
typically occur early, and in considering equitable tolling an appellate
court should take account of this, rather than assume that a district court
will be able to undertake a full review in considering tolling. After all,
it is the State's burden to file the state-court opinion, not the petitioner's,
and a State need not file the state-court opinion until the State files its
answer to the habeas petition in federal court. See Fed. R. Governing
Section 2254 Cases 2, 5. Thus, if a State moves to dismiss on timeliness
grounds before ever filing an answer, as North Carolina officials did
here, the habeas court may well not have the state-court opinion in the
record before it.
   2
     The North Carolina Supreme Court denied certiorari on February 5,
1999. Rouse's petition would thus have been due on February 5, 2000.
See Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000). In 2000,
however, February 5 was a Saturday. By application of Federal Rule of
Civil Procedure 6(a), see id., Rouse had until the next working day to file
his petition. The petition was therefore due on Monday, February 7, 2000
— one day before Rouse filed it. Despite the magistrate judge's clear rul-
ing on this point, see J.A. 320 (concluding that "the petition filed on Feb-
ruary 8, 2000 was one day late"), which was undisturbed by the district
court, the State — perhaps because of its unease with this fact — omits
any mention of the length of the default in its brief. Nonetheless, it is
clear, as the majority concedes, ante at 17-18, n.14; 22, that we confront
today a first federal habeas petition that was just one day late.

                                    29
control or external to his own conduct, (3) that prevented him from
filing on time" in order to merit equitable tolling. Ante at 11. Appar-
ently, in the majority's view, all that we have before us in this case
is a "garden variety claim[ ] of excusable neglect." Id. Dismissing as
irrelevant both the nature of Rouse's underlying claim and the fact
that he faces a death sentence, the majority concludes that the district
court properly refused to equitably toll the statute of limitations. Id.
at 2, 18. I cannot agree.

    As the majority properly acknowledges, ante at 11, we have
recently joined every other circuit to consider the question to hold that
the statute of limitations at issue here, 28 U.S.C.A. § 2244(d) (West
Supp. 2003), is subject to equitable tolling. See Harris v. Hutchinson,
209 F.3d 325, 329-30 (4th Cir. 2000) (collecting cases); see also Dun-
can v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 2129-30 (2001) (Ste-
vens, J., joined by Souter, J., (concurring); Greyhound Corp. v. Mt.
Hood Stages, Inc., 437 U.S. 322, 338 n.* (1978) (Burger, C.J., con-
curring) ("The authority of a federal court, sitting as a chancellor, to
toll a statute of limitations on equitable grounds is a well-established
part of our jurisprudence." (citations omitted)). Thus, in appropriate
cases, we clearly have the power to grant the relief Rouse seeks.

   In making his case for such relief, Rouse maintains that his court-
appointed lawyers "played Russian roulette with [his] rights" in wait-
ing to file his petition, and that their "inexcusable" and "unconsciona-
ble" conduct provides grounds for equitable tolling of the statute of
limitations in his case. Supplemental Brief of Appellant at 7. He notes
that he has diligently pursued every previous avenue of review avail-
able to him. Moreover, the record reveals that Rouse personally nei-
ther knew of nor consented to a late filing of his federal habeas
petition, and no evidence suggests that the late filing was a tactical
decision of counsel.3 Nor has the State made any showing that it has
____________________________________________________________
    3
      I agree that Rouse's health does not warrant tolling. Rouse's habeas
lawyers were able to file his habeas petition on February 8, and Rouse
provides no reason why his medical condition barred filing one day ear-
lier. However, I note that Rouse's ability to monitor his court-appointed
counsel, who, according to the majority, bound Rouse by their errors
"not because he participated in, ratified, or condoned their decision, but
because they were his agents," can hardly be considered normal under

                                  30
been, or would be, prejudiced in any way by the one-day delay in the
filing of Rouse's first habeas petition, and it is hard to imagine that
such a showing could be made.

    Nevertheless, if Rouse had offered only these reasons, our prece-
dent might well have foreclosed equitable tolling, even in the face of
the egregious attorney error at issue here. For we have held that "a
mistake by a party's counsel in interpreting a statute of limitations
does not present the extraordinary circumstance beyond the party's
control where equity should step in to give the party the benefit of his
erroneous understanding." Harris, 209 F.3d at 331; see also Spencer
v. Sutton, 239 F.3d 626, 628-29 (4th Cir. 2001). But we reached this
conclusion in cases involving greater delay, far less compelling
habeas claims that had received at least one hearing, and petitioners
who did not face execution, that irrevocable and "most . . . unfathom-
able of penalties." Ford v. Wainwright, 477 U.S. 399, 411 (1986)
(Marshall, J., writing on behalf of four justices).

    In so holding, we also expressly recognized that equitable tolling
is "`a discretionary doctrine that turns on the facts and circumstances
of a particular case'" and, therefore, "`does not lend itself to bright-
line rules.'" Harris, 209 F.3d at 330 (quoting Fisher v. Johnson, 174
F.3d 710, 713 (5th Cir. 1999)). As we explained, although some stat-
utes of limitations "serve[ ] policy interests that would be adversely
affected if the statutory limitations provisions were not strictly
adhered to," the habeas context is different, warranting greater flexi-
____________________________________________________________
any traditional understanding of "standard principles of agency." See
ante at 15-16. As the State acknowledges, Rouse's mental ability,
although one category "above mental retardation," was classified as
"`borderline intellectual functioning.'" Supplemental Brief of Appellee at
3. Psychiatric evaluations revealed that during the 1980s and 1990s
Rouse had an IQ of between 70 and 80, and that, due to a combination
of "minimal brain dysfunction," "pediatric head injury," "a severely dys-
functional family," and "early substance abuse," he reached adulthood
"with an extremely compromised psychological and neuropsychological
functioning." See J.A. 193-201. These facts render it impossible to con-
clude that Rouse could meaningfully participate in an agency relation-
ship with his lawyers, especially one concerning the bewildering
complexity of the habeas corpus rules.

                                  31
bility in the application of the AEDPA's statute of limitations. Id. at
329. Thus, in determining whether to exercise its equitable power to
toll the statute of limitations, circuit precedent requires a court to con-
sider the "facts and circumstances of a particular case." Id. at 330.
Accordingly, I turn to that inquiry.

                                   III.

    Few cases present "facts and circumstances" as compelling as this
one. Not only did Rouse file his petition only one day late, but also
his court-appointed counsel's disastrous error rested on plausible,
albeit incorrect, legal theories, some of which have since been clari-
fied. See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001) (noting lack
of clarity in the relevant law and plausibility of a petitioner's legal
theory in equitably tolling the AEDPA), cert. denied, 534 U.S. 944
(2001). In addition, Rouse's mental shortcomings, see supra note 3,
rendered his capacity to monitor his counsel marginal at best. And,
Rouse has never received an evidentiary hearing on his habeas claims,
in any forum — state or federal. Cf. Spencer, 239 F.3d at 627-28 (two
evidentiary hearings in state court); Brief of Appellant in Harris, 209
F.3d 325 (evidentiary hearing in state court).4 Without equitable toll-
____________________________________________________________
    4
      The state post-conviction court (the MAR court), whose ruling, of
course, was not even before the district court, see supra n. 1, disposed
of Rouse's claim, apparently on the basis of a credibility determination
but without a hearing. After noting "that the acoustics in the courtroom
where defendant was tried sometimes makes hearing difficult," the state
MAR court concluded that the assertedly biased juror "did not hear" a
question as to whether any juror had a relative who had been a victim of
a violent crime. Yet the following facts contradict this conclusion: (1) the
juror's admission that "I knew that if I disclosed what had happened to
my mother, I would be excused from serving . . . I wanted to serve, . . .
so I did not reveal the information"; (2) the state post-conviction court's
acknowledgment of this admission; (3) the court's express finding (sub-
stantiated by the voir dire transcript) that all prospective jurors were
asked if they had "been a victim of any kind of violent crime or any fam-
ily members or any close relative ever been a victim of a violent crime";
(4) the court's further express finding that the transcript reflected no
response to that question; and (5) the court's acknowledgment that
immediately after the group question about family victims, prospective
jurors were told that the trial "involv[ed] a first-degree murder, armed

                                   32
ing, he will lose any hope of receiving such a hearing and will be
afforded no federal habeas review at all.

    Moreover, Rouse presents what must be considered on its face a
powerful constitutional claim: that a juror's personal vengeance and
racial bias infected his death sentence. To date, he has never been
afforded an opportunity to explore the evidence that one of his jurors
harbored an invidious prejudice against African-Americans, the evi-
dence as to the potential effect of the sexual assault and murder of the
juror's mother on his impartiality, or the evidence that in fact the juror
intentionally concealed this bias — all matters that would seem to
require credibility determinations. If proved, these facts support a
strong constitutional claim. See Morgan v. Illinois, 504 U.S. 719, 728
(1992) (reviewing the "strictures dictated by the Sixth and Fourteenth
Amendments to ensure the impartiality of any jury that will undertake
capital sentencing" (emphasis omitted)); McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 556 (1984); Rosales-Lopez v.
United States, 451 U.S. 182, 190-91 (1981); Irvin v. Dowd, 366 U.S.
717 (1961).

    Contrary to the majority's assertion, ante at 18-22, the strength of
the claims in a habeas petition must inform a court's decision to exer-
cise its equitable power to toll limitations at least in cases such as this
one, where the evidentiary basis for such claims has never been sub-
jected to judicial scrutiny. See Lonchar v. Thomas, 517 U.S. 314, 320
(1996) (emphasizing the distinction between habeas claims suitable
for summary dismissal and those warranting more attention in revers-
____________________________________________________________
robbery, and rape" (information the juror plainly took in, based on his
knowledge of the nature of the trial and his resulting admitted desire to
serve on the jury). State MAR Court, Post-Argument Supp. to Appellate
Record, App. 3 at 3, 4, 15. Therefore, the state court apparently reached
its dispositive finding, a credibility determination that contradicts the
official written record of the voir dire, without the benefit of face-to-face
consideration of any sort, without a hearing, and without even a direct
assertion by the juror in support of the finding. Thus, the MAR court's
"findings" would be due no deference even if they had been before the
district court. See 28 U.S.C.A. § 2254(d)(2), (e)(1) (West Supp. 2003)
(governing federal habeas review of state-court factual findings under
AEDPA).

                                   33
ing a lower court's employment of "special ad hoc`equitable' reasons
not encompassed within the framework" of the Habeas Corpus Rules
to bar all consideration of a first federal capital habeas petition); see
also Spencer, 239 F.3d at 630 n. 2 (suggesting that petitioner's under-
lying habeas claim was weak when determining whether district
court's tolling decision was correct).5

    Indeed, a facially strong constitutional claim that questions the fun-
damental fairness of the very process by which a petitioner was con-
victed and sentenced "compels review regardless of procedural
defaults." Murray v. Carrier, 477 U.S. 478, 501 n.8 (1986) (Stevens,
J., concurring); see also Hensley v. Mun. Court, 411 U.S. 345, 349-50
(1973) ("[H]abeas corpus is not a static, narrow, formalistic remedy,
but one which must retain the ability to cut through barriers of form
and procedural mazes. The very nature of the writ demands that it be
administered with the initiative and flexibility essential to insure that
miscarriages of justice within its reach are surfaced and corrected."
(internal quotation marks and citations omitted)). We should remem-
ber, too, the limited relief that Rouse seeks: not that he be granted
habeas relief, but merely that he be given the opportunity to explore
before a federal district court his evidence of juror bias. I cannot join
a decision that would allow the most minor procedural default imag-
inable to prohibit all evidentiary inquiry into such a serious constitu-
tional claim. To deny the very possibility of habeas relief under such
circumstances is to denigrate the power and purpose of the Great
Writ. See Carrier, 477 U.S. at 500 (Stevens, J., concurring) ("[T]he
central mission of the Great Writ should be the substance of `justice,'
not the form of procedures."); Brown v. Allen, 344 U.S. 443, 553-54
(1953) (Black, J., dissenting) (embracing "the principle that it is never
too late for courts in habeas corpus proceedings to look straight
____________________________________________________________
    5
      There is nothing "circular, " ante at 20 n. 15, in taking into account the
merits of a petitioner's claim when determining whether that claim
deserves full consideration. Cf. Miller-El v. Cockrell, 537 U.S. 322, 123
S. Ct. 1029, 1039 (2003) and Slack v. McDaniel, 529 U.S. 473, 484
(2000) (following precisely this approach in determining whether a cer-
tificate of appealability should issue under 28 U.S.C.A. § 2253(c)).
Clearly, if Rouse's underlying claims did not even facially allege the
denial of a constitutional right, the district court's decision not to toll the
statute of limitations would not be an issue.

                                   34
through procedural screens in order to prevent forfeiture of life or lib-
erty in flagrant defiance of the Constitution" (citations omitted)).

   Rouse's call on our equitable powers is made all the more urgent
by the fact that the sentence that is assertedly tainted by racial and
personal bias is a death sentence. Until today, we have not had occa-
sion to consider equitable tolling in a habeas case involving a sen-
tence of death. Cf. Spencer, 239 F.3d at 627; Harris, 209 F.3d at 326.
But we have implicitly recognized that the presence of a death sen-
tence affects the equitable tolling analysis. See Harris, 209 F.3d at
329 (noting that although in some contexts, strict limitations rules
may have to yield "occasional injustices . . . in order to maintain a
workable regime," these "occasional injustices. . . are decidedly not
an acceptable cost of doing business in death penalty cases" (quoting
Calderon v. United States Dist. Court for the Cent. Dist. Of Cal.
(Beeler), 128 F.3d 1283, 1288 n.4 (9th Cir. 1997) (internal quotation
marks and citations omitted), overruled on other grounds, 163 F.3d
530 (9th Cir. 1998) (en banc))).

    The fact is that death is different. The phrase itself is timeworn and
familiar — because it is true. Most of us, if we have lived long
enough, have seen death. Each of us will face and know death one
day. We share therefore in the understanding, though imperfect and
incomplete, that "in its finality," death "differs more from life impris-
onment than a 100-year prison term differs from one of only a year
or two." Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plu-
rality opinion). For this reason, the death penalty presents different
and far more serious concerns than any other sanction. See, e.g., Ring
v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2441 (2002) ("[T]here is
no doubt that `[d]eath is different.'" (citation omitted)); Gardner v.
Florida, 430 U.S. 349, 357 (1977) (plurality opinion) (stating that
"death is a different kind of punishment"); see also Bracy v. Schomig,
286 F.3d 406, 415 (7th Cir. 2002) (en banc) ("[W]e are again mindful
that death is indeed different."), cert. denied, ___ U.S. ___, 123 S. Ct.
169 (2002). In short, the conclusion "that `death is different' . . .
mean[s] that the firm view of our society demands that it be treated
differently in certain identifiable respects. . . ." Thompson v. Okla-
homa, 487 U.S. 815, 877-78 (1988) (Scalia, J., dissenting).

   Accordingly, when we consider the deliberate infliction of death,
even on someone who has wantonly dealt it out, we must act with par-

                                   35
ticular care. As the Supreme Court has emphasized, "the qualitative
difference of death from all other punishments requires a correspond-
ingly greater degree of scrutiny of the capital sentencing determina-
tion," that is, "the procedure by which the State imposes the death
sentence," to "ensur[e] that the death penalty is not meted out arbitrar-
ily or capriciously." California v. Ramos, 463 U.S. 992, 998-99
(1983) (emphasis in original) (footnote with citations omitted);
accord Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (opinion of
Scalia, J., joined by Rehnquist, C.J.); Caldwell v. Mississippi, 472
U.S. 320, 329 (1985); see also Bracy, 286 F.3d at 412 ("[L]ike all
others sentenced to death, Bracy and Collins are entitled to our pains-
taking review of their convictions and death sentence because, as the
Supreme Court has often recognized, death is different." (citation
omitted)).

    Thus, the Supreme Court itself has, "`in the interests of justice',"
been willing to overlook requirements that it would ordinarily impose
in non-capital cases. Eddings v. Oklahoma, 455 U.S. 104, 117 n.*
(1982) (O'Connor, J., concurring) (quoting Wood v. Georgia, 450
U.S. 261, 265 n.5 (1981)). For example, the Court has treated the
requirement that an argument be raised below and in the certiorari
petition, ordinarily prerequisites for Supreme Court review, as merely
"technical[ ]." Id. (O'Connor, J., concurring in the Court's reversal of
a death sentence (despite a dissenting argument that the ground for
reversal had been waived) "[b]ecause the trial court's failure . . . risks
erroneous imposition of the death sentence" (citation omitted)); see
id. at 105, 113 n.9 (majority opinion) (reversing death sentence on
basis of an argument habeas petitioner failed to raise below (prior to
petition for rehearing) or even "expressly present" in his petition for
certiorari, and citing Wood, 450 U.S. at 265 n.5, which notes that a
court may overlook such failures "in the interests of justice"); see also
Dobbs v. Zant, 506 U.S. 357, 360 (1993) (Scalia, J., concurring) ("I
am willing to make an exception from that [previously stated `gen-
eral' internal] rule in capital cases — but only where there is a realis-
tic likelihood that the `technical error' affected the conviction or the
sentence." (emphasis added)).

   And, contrary to the majority's suggestion, ante at 22-24, the Court
has not foreclosed the possibility that the fact of a death sentence
should inform a court's consideration of a petitioner's underlying

                                   36
claims in post-conviction proceedings. Although today we confront
"only" a district court's decision on habeas review not to toll the stat-
ute of limitations, upholding that decision denies the possibility of
any substantive judicial inquiry into the evidence underlying Rouse's
juror bias claim. We cannot hide behind procedural rules when con-
fronted with such circumstances.

    Indeed, the Supreme Court has made clear that a reviewing court
must exercise great care before allowing a capital petitioner's initial
claim for federal habeas relief to be summarily dismissed. See Lon-
char, 517 U.S. at 324 (noting in a capital case that "[d]ismissal of a
first federal habeas petition is a particularly serious matter, for that
dismissal denies the petitioner the protections of the Great Writ
entirely, risking injury to an important interest in human liberty"
(emphasis in original) (citation omitted)). This is particularly so
when, as here, the petitioner discovers the evidence underlying his
claim after he has exhausted his direct appeal and without receiving
any evidentiary hearing on the matter in state court. Sitting in equity
to determine whether a federal limitations period should be tolled for
a single day to afford a prisoner facing execution any federal habeas
review, or any evidentiary hearing at all, we should follow the
Supreme Court and recognize that the finality of death heightens our
responsibility to ensure that the matter is disposed of "as law and jus-
tice require." 28 U.S.C.A. § 2243 (West 1994). "Given the irrevers-
ibility of capital punishment," a claim that does "not surface until
after the direct review is complete, . . . deserves searching, adversarial
scrutiny." Murray v. Giarratano, 492 U.S. 1, 24-25 (1989) (Stevens,
J., dissenting). Because this is the posture in which Rouse's claim of
juror bias reaches us, to confine even the possibility of habeas relief
within rigid formalistic boundaries ties the hand of equity in a manner
fundamentally at odds with our Nation's commitment to fair process.

    A decision to toll the statute of limitations in this case, moreover,
raises none of the concerns related to constitutional interpretation that
are sometimes invoked in opposition to a "`death-is-different' juris-
prudence," Shafer v. South Carolina, 532 U.S. 36, 55 (2001) (Scalia,
J., dissenting); see Simmons v. South Carolina, 512 U.S. 154, 178-79
(1994) (Scalia, J., joined by Thomas, J., dissenting), and it would not
alter the "`standard of review on federal habeas corpus,'" because
AEDPA's stringent standards of review would of course still apply.

                                   37
Herrera v. Collins, 506 U.S. 390, 405 (1993) (quoting Giarratano,
492 U.S. at 9 (plurality opinion)); see 28 U.S.C.A. § 2254(d), (e)
(West Supp. 2003). Similarly, equitable tolling of this federal dead-
line poses no threat of intrusion on a state's enforcement of its own
procedural rules, cf. Coleman v. Thompson, 501 U.S. 722 (1991), on
a state's legislative choices, cf. Giarratano, 492 U.S. at 13-15
(O'Connor, J., concurring, and Kennedy, J., concurring in the judg-
ment), or on the prerogatives of the executive branch. Cf. Ohio Adult
Parole Auth. v. Woodard, 523 U.S. 272, 276, 284-85 (1998) (plurality
opinion).

    Nor is there any reason to fear that within our own circuit equitable
tolling in Rouse's case might "loose the rule of law to whims about
the adequacy of excuses, divergent responses to claims of hardship,
and subjective notions of fair accommodation." Harris, 209 F.3d at
330. Of course, all non-capital petitions would continue to be gov-
erned by Harris. And even in capital cases, the precedential effect of
tolling in this case would be slight. A deliberate decision to file late
— to gamble any chance of federal review of a capital petitioner's
habeas claims in hopes that equity would slightly extend the deadline
— would constitute recklessness of a nature and a magnitude that an
appellate court cannot consciously impute to its Bar. Even if such tac-
tics were employed, equitable tolling is "a discretionary doctrine that
turns on the facts and circumstances of a particular case," id. (internal
quotation marks and citation omitted). Application of the doctrine
would thus continue to depend on a court's confidence that "there is
no evidence of abuse of the process." See Fahy, 240 F.3d at 245.

    Until today, it appears that no appellate court has withheld all fed-
eral habeas review from a man under sentence of death, who presents
evidence supporting a facially strong constitutional claim, but who
filed his federal petition one day late.6 In fact, other courts have tolled
____________________________________________________________
   6
     Although other courts have on occasion refused tolling in capital
cases, they have done so in cases involving greater (typically much
greater) delay, or when petitioners have shown less diligence than Rouse,
or both. See Fierro v. Cockrell, 294 F.3d 674, 679-80 (5th Cir. 2002)
(considering a habeas petition filed three months late), cert. denied, ___
U.S. ___, 123 S.Ct. 1621 (2003); Lookingbill v. Cockrell, 293 F.3d 256,
263-64 (5th Cir. 2002) (considering a habeas petition filed four days late

                                  38
the very limitations period at issue here in cases involving more egre-
gious delay. In a capital case involving a petition that was thirty-five
days late due to attorney error in interpreting debatable procedural
provisions, the Third Circuit tolled the precise statute at issue here.
See Fahy, 240 F.3d at 245; accord Banks v. Horn, 271 F.3d 527, 534-
35 (3d Cir. 2001) (applying equitable tolling in a capital case involv-
ing a petitioner convicted of murdering thirteen people), rev'd on
other grounds, 536 U.S. 266 (2002). The Fahy court reasoned that a
court "must allow less than `extraordinary' circumstances to trigger
equitable tolling of the AEDPA's statute of limitations when a [capi-
tal] petitioner has been diligent in asserting his or her claims and rigid
application of the statute would be unfair." Fahy, 240 F.3d at 245; see
also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) (tolling
AEDPA's statute of limitations despite a procedural defect and listing
cases); Lagrone v. Cockrell, 2002 WL 1968246, at *8-9 (N.D. Tex.
Aug. 19, 2002); De Jesus v. Miller, 215 F. Supp. 2d 410, 412
(S.D.N.Y. 2002).7

   Like the Third Circuit, I believe it is appropriate "to exercise this
leniency under the facts of this capital case where there is no evidence
of abuse of the process." Fahy, 240 F.3d at 245. Given that this case
involves the shortest possible delay in filing a habeas petition, a total
____________________________________________________________
and excused only by counsel's somewhat late appointment and "busy
docket"); Kreutzer v. Bowersox, 231 F.3d 460, 461-62 (8th Cir. 2000)
(considering a habeas petition filed two weeks late); Cantu-Tzin v. John-
son, 162 F.3d 295, 297-99 (5th Cir. 1998) (considering a case in which
no habeas petition was ever filed and a motion for stay was filed two
months after the deadline for a petition had passed). Regardless of dili-
gence, however, I have found no case in which any circuit refused equi-
table tolling to a capital petitioner who filed his federal habeas petition
one day late.
    7
      No one quarrels with the AEDPA's intent to "reduce delays . . . and
to further the principles of comity, finality and federalism." Ante at 11
(quoting Woodford v. Garceau, ___ U.S. ___, 123 S. Ct. 1398, 1401
(2003) (internal citation and quotation marks omitted). But allowing an
execution to proceed without any exploration of the evidence that the
conviction and sentence may be infected by racial bias renders the Great
Writ a paper tiger and is fundamentally at odds with this nation's com-
mitment to fair process and justice for all.

                                   39
lack of prejudice to the State, a petitioner who, despite considerable
mental shortcomings, has been diligent in all other regards, evidence
of an apparently compelling constitutional claim that has never been
explored by any court, and the fact of a death sentence, to refuse toll-
ing here would be "unconscionable" and might well result in "gross
injustice." Harris, 209 F.3d at 330. If ever a case was suitable for an
exercise of a court's discretion — the most minor exercise imagin-
able, a one-day tolling of a limitations period — surely, this is that
case.

                                  IV.

   Today, a majority of this court allows the State of North Carolina
to proceed with the execution of a man who may have been convicted
and sentenced by a biased jury. When a court asks whether a peti-
tioner in Rouse's position has a "special claim on equity," it should
look to justice and conscience, calibrated by judicial experience. I
believe that a pending death sentence must affect our exercise of con-
science and our sense of justice.

   Confronting the particular demands of capital cases, the Supreme
Court "has gone to extraordinary measures to ensure that the prisoner
sentenced to be executed is afforded process that will guarantee, as
much as is humanly possible, that the sentence was not imposed out
of whim, passion, prejudice, or mistake." Eddings, 455 U.S. at 118
(O'Connor, J., concurring) (emphasis added); see also Gardner, 430
U.S. at 358 (plurality opinion) ("It is of vital importance to the defen-
dant and to the community that any decision to impose the death sen-
tence be, and appear to be, based on reason rather than caprice or
emotion."). A strong showing that a death sentence may have been
imposed out of pure bias should weigh more heavily with us than one
day's non-prejudicial delay, and the vague risk, entirely within our
control, that we ourselves will succumb to whim or prejudice in the
future.

   Less than twenty years ago, Justice Lewis Powell famously
expressed his confidence that it is "unlikely indeed that a defendant
today could go to his death with knowledge of undiscovered trial
error that might set him free." Ford, 477 U.S. at 420 (Powell, J., con-
curring in part and in the judgment). By imposing a statute of limita-

                                   40
tions on federal habeas petitions in the AEDPA, Congress struck a
new balance, accepting a higher likelihood of such cases, and of cases
in which undiscovered trial error had infected a sentence. Under the
AEDPA, undoubtedly, some capital petitioners will be denied all fed-
eral habeas review for the sake of finality. But Congress did not elim-
inate our equitable power to toll the statute in the interest of justice.

    As the majority suggests, the principles at issue in this case are
indeed "large." Ante at 26. The Supreme Court has long recognized
the writ of habeas corpus as the most powerful of equitable remedies,
the "best and only sufficient defence of personal freedom." Ex Parte
Yerger, 75 U.S. (8 Wall.) 85, 95 (1868). Thus,"[t]here is no higher
duty of a court, under our constitutional system, than the . . . adjudica-
tion of petitions for writs of habeas corpus." Harris v. Nelson, 394
U.S. 286, 292 (1969). Yet, invoking principles of comity, finality, and
federalism, the majority determines to deny any habeas relief to a
petitioner under penalty of death who has filed his first federal habeas
petition one day late. The majority believes that strict adherence to a
statutory deadline must be maintained, even in the face of compelling
new evidence of juror bias in a death penalty case, lest the future
application of the AEDPA limitations period unravel into an "unpre-
dictable and indeterminate" inquiry. Ante at 26. As explained above,
such fears are baseless given the extraordinary facts of this case.
Moreover, although comity, finality, and federalism are certainly
important, no principle is more fundamental and no "duty of a court"
is "higher," in "our constitutional system" than "adjudication of peti-
tions for writs of habeas corpus, for it is in such petitions that a person
in custody" can challenge his "unlawful confinement," Nelson, 394
U.S. at 292, and through such adjudication that courts ensure that the
imposition of death by public authority occurs only after fair process.

    Kenneth Rouse faces his death with reason to believe that one of
the twelve citizens entrusted with doing impartial justice in his case
sought so eagerly to condemn him that the juror deliberately misled
the court, hiding basic facts as to his particular bias against Rouse and
his contempt for all African Americans. If not in Rouse's interest then
in the interest of justice, our court should not allow one day's delay
to rob a man on death row of all federal habeas review of such a seri-
ous and troubling claim.

                                   41
   In keeping with the Supreme Court's teaching that capital cases are
different, I would toll the statute of limitations in the rare circum-
stances presented in this case. Judge Michael, Judge King, and Judge
Gregory join in this dissent.

                                 42
