                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANTHONY BERNARD SMITH, JR.,                No. 17-15874
         Petitioner-Appellant,
                                              D.C. No.
               v.                          2:15-cv-01785-
                                              JAM-AC
RON DAVIS,
         Respondent-Appellee.                OPINION

      Appeal from the United States District Court
          for the Eastern District of California
       John A. Mendez, District Judge, Presiding

   Argued and Submitted En Banc September 24, 2019
               San Francisco, California

                    Filed March 20, 2020

 Before: Sidney R. Thomas, Chief Judge, and Ronald M.
Gould, Marsha S. Berzon, Johnnie B. Rawlinson, Carlos T.
 Bea, Sandra S. Ikuta, Mary H. Murguia, Paul J. Watford,
Andrew D. Hurwitz, Mark J. Bennett and Ryan D. Nelson,
                      Circuit Judges.

                 Opinion by Judge Bea;
                Dissent by Judge Berzon
2                        SMITH V. DAVIS

                          SUMMARY *


                         Habeas Corpus

    The en banc court affirmed the district court’s denial of
California state prisoner Anthony Smith’s habeas corpus
petition as untimely, in a case in which Smith argued that he
was entitled to extend the one-year limitations period set
forth in 28 U.S.C. § 2244(d)(1) by equitable tolling for the
66 days between the date his conviction became final in the
state appellate court and the date when his attorney informed
him of that unsuccessful appeal and provided him with the
state appellate record.

    The en banc court affirmed because Smith failed to
exercise reasonable diligence during the 10 months available
after he received his record from his attorney and before the
time allowed by the statute of limitations expired.

     In view of the historic practice of courts of equity and
modern Supreme Court precedent governing equitable
tolling, the en banc court made two related holdings.

    First, for a litigant to demonstrate he has been pursuing
his rights diligently, and thus satisfies the first element
required for equitable tolling, he must show that he has been
reasonably diligent in pursuing his rights not only while an
impediment to filing caused by an extraordinary
circumstance existed, but before and after as well, up to the
time of filing his claim in federal court. In so holding, the
en banc court rejected the “stop-clock” approach under
    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                       SMITH V. DAVIS                        3

which whenever a petitioner is impeded from filing his
petition by extraordinary circumstances while the time
period of a statute of limitations is running out, he may add
the time during which he was so impeded to extend the
limitations period, regardless whether he was reasonably
diligent in filing his petition after the impediment was
removed.

    Second, it is only when an extraordinary circumstance
prevented a petitioner acting with reasonable diligence from
making a timely filing that equitable tolling may be the
proper remedy. In evaluating whether an extraordinary
circumstance stood in a petitioner’s way and prevented
timely filing, a court is not bound by mechanical rules and
must decide the issue based on all the circumstances of the
case before it.

    Applying this framework to Smith’s petition, the en banc
court accepted Smith’s allegations as true and assumed that
his attorney’s failure to contact him for five months after his
state appeal was denied was sufficiently egregious so that it
could qualify as an “extraordinary circumstance” that
created an impediment to filing under the second required
element for equitable tolling. The en banc court nevertheless
concluded that Smith did not exercise the necessary
diligence to satisfy the first element because when given the
opportunity to explain how he had used his time diligently
after receiving his file from his attorney, Smith made no
allegation or claim in his opposition to the motion to dismiss
or his supporting declaration that he had acted diligently but
had not been able to file earlier.

    Dissenting, Judge Berzon, joined by Chief Judge
Thomas and Judges Murguia, Watford, and Hurwitz, wrote
that the central problem with the majority’s approach
4                      SMITH V. DAVIS

concerns its substitution of its own determination of the time
needed to file for Congress’s clear prescription that
petitioners are to be given 365 days to draft and file a federal
habeas petition.


                         COUNSEL

David M. Porter (argued), Assistant Federal Defender;
Heather E. Williams, Federal Defender; Federal Defenders
of the Eastern District of California, Sacramento, California;
for Petitioner-Appellant.

Justain P. Riley (argued), Deputy Attorney General; Tami
Krenzin, Supervising Deputy Attorney General; Michael P.
Farrell, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.
                       SMITH V. DAVIS                        5

                         OPINION

BEA, Circuit Judge:

    Anthony Smith is imprisoned in the custody of the
California Department of Corrections and Rehabilitation
having been convicted of burglary, robbery, and forcible oral
copulation. He appeals the district court’s denial of his
petition for the writ of habeas corpus. The denial was
ordered solely because Smith’s petition was not timely filed.
Smith acknowledges he filed his petition more than two
months after the expiration of the applicable statute of
limitations, see 28 U.S.C. § 2244(d)(1), but argues he was
entitled to extend the limitations period by equitable tolling
for the 66 days between the date his conviction became final
in the state appellate court and the date when his attorney
informed him of that unsuccessful appeal and provided him
the state appellate court record. The district court found
Smith was not diligent in his use of the 10 months remaining
in the limitations period after he received the case file from
his attorney and that the delay in receiving his record had not
been the cause of his untimely filing. The district court
refused to apply equitable tolling to toll the statute of
limitations.

    Smith asks us to reverse the district court and to extend
the period of the statute of limitations by those 66 days. He
asks us to adopt a flat rule: a “stop-clock” approach to
equitable tolling so that whenever a petitioner is impeded
from filing his petition by extraordinary circumstances while
the time period of a statute of limitations is running out, he
may simply add the time during which he was so impeded to
extend the period of the statute of limitations, regardless
whether he was reasonably diligent in filing his petition after
the impediment was removed. What Smith requests is an
application of equitable tolling that is contrary to Supreme
6                     SMITH V. DAVIS

Court precedent and also contrary to traditional principles of
equity, in which “each case as it arises must be determined
by its own particular circumstances.” McQuiddy v. Ware,
87 U.S. (20 Wall.) 14, 19 (1874). The rule he asks us to apply
is something much more akin to the uniform, forward-
looking actions of a legislature. But, of course, we are not a
legislature; we are a court. Because, as a court, we must
follow the precedents that require we employ principles of
traditional equity and evaluate whether Smith was
reasonably diligent in filing his habeas petition before we
equitably toll the statute of limitations, we decline to adopt
his suggested approach. Therefore, we affirm the district
court’s order denying Smith’s habeas petition because Smith
failed to exercise reasonable diligence during the 10 months
available after he received his record from his attorney and
before the time allowed by the statute of limitations expired.

                       I. Background

     Smith was convicted in California state court in 1998 of
one count of residential burglary, two counts of robbery, and
one count of forcible oral copulation. He was sentenced to
25-years-to-life. Smith was granted federal habeas relief in
2010 for the forcible oral copulation conviction, but after a
retrial he was again convicted of forcible oral copulation and
then again sentenced to 25-years-to-life in 2012. Smith
appealed his conviction through the California courts, which
denied his appeals. His state appeals culminated when the
California Supreme Court issued a summary denial of his
petition for review on March 12, 2014. Smith did not seek
review in the United States Supreme Court, and his
conviction became final on June 10, 2014, when the time for
filing a petition for a writ of certiorari expired.

   Smith was represented in his California state appeals by
a court-appointed attorney. After the California Supreme
                       SMITH V. DAVIS                        7

Court denied Smith’s petition for review in March 2014,
Smith alleges the next correspondence he had with his
attorney was a letter received on August 15, 2014, which
informed Smith that his California state appeal had been
denied and that the attorney’s representation of Smith was
complete. Smith’s attorney also returned the appellate record
to Smith in the same mailing. Smith acknowledges that his
attorney’s letter was not the first time he learned that his
appeal had been denied, and that his family had informed
him of the denial three months earlier, around May 10, 2014.
After Smith learned that the California Supreme Court had
denied his appeal, Smith sent his attorney a letter the next
day, requesting an update from the attorney and the
immediate return of his appellate record so that Smith could
prepare a federal habeas petition. When Smith did not
receive a timely response to his letter, he filed a complaint
with the California State Bar in June 2014. It appears that
this complaint prompted Smith’s attorney to contact Smith
and return his appellate record in August 2014.

    Appearing pro se, Smith filed his habeas petition in the
district court for the Eastern District of California on August
14, 2015, asserting nearly identical claims to those he had
made to the California Supreme Court. California moved to
dismiss Smith’s petition as untimely filed. According to the
State, the one-year statute of limitations allowing for state
prisoners to file federal habeas petitions had expired on June
10, 2015, one year after Smith’s conviction became final.
Smith filed an opposition arguing that he was entitled to
equitable tolling from June 10 to August 15, 2014 and
claimed the statute of limitations did not expire until August
15, 2015, the day after his petition was filed. Smith argued
he was entitled to equitable tolling for that 66-day period
because he had been abandoned by his attorney, did not have
8                     SMITH V. DAVIS

access to his appellate record, and had been diligent in his
attempts to contact his attorney to remedy the situation.

     The magistrate judge assigned to Smith’s case in the
district court issued findings and recommended that
California’s motion to dismiss be granted. The magistrate
judge noted that even though Smith did not receive his
appellate record until two months after the time period
prescribed by the statute of limitations had begun to run, he
still had ten months thereafter in which to file his habeas
petition on time. According to the magistrate judge, the
“petitioner has offered no explanation as to why he was
unable to file his federal petition during this ten month
period”; instead it appeared “it was petitioner’s own lack of
diligence during the ten months after he received the
appellate record, and not [the attorney’s] delay in forwarding
the records, that was the cause of petitioner’s untimeliness.”
While the magistrate judge was “convinced that petitioner
acted diligently to obtain his appellate record” from his
attorney, she concluded that “there is no evidence that the
delayed receipt of the file made timely filing impossible.”
The district judge adopted the findings and
recommendations of the magistrate judge and denied the
petition. Smith appealed.

    A three-judge panel affirmed the district court, but we
granted rehearing en banc to resolve a conflict within our
cases about the nature of the diligence required for a
petitioner to be eligible for equitable tolling. See Smith v.
Davis, 740 Fed. App’x 131 (9th Cir. 2018), reh’g en banc
granted, 931 F.3d 829 (9th Cir. 2019).

                  II. Standard of Review

    We review de novo the dismissal of a federal habeas
petition as untimely, including “whether the statute of
                            SMITH V. DAVIS                               9

limitations should be equitably tolled.” Fue v. Biter,
842 F.3d 650, 653 (9th Cir. 2016) (en banc) (quoting
Corjasso v. Ayres, 278 F.3d 874, 877 (9th Cir. 2002)). When,
as here, the district court has not made factual findings “we
accept the facts as alleged by the petitioner” for the purpose
of determining whether, if proven, the allegations are
sufficient to merit equitable tolling. Id. (alteration and
internal quotation marks omitted).

                            III. Discussion

   A. AEDPA and Equitable Tolling

    The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) subjects federal habeas corpus petitions
filed by state prisoners to a one-year statute of limitations.
28 U.S.C. § 2244(d)(1). As relevant here, the time provided
by the statute of limitations begins to run on “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” Id. § 2244(d)(1)(A). 1 The statute does provide that


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

          (B) the date on which the impediment to filing an
          application created by State action in violation of the
          Constitution or laws of the United States is removed,
          if the applicant was prevented from filing by such
          State action;

          (C) the date on which the constitutional right asserted
          was initially recognized by the Supreme Court, if the
          right has been newly recognized by the Supreme Court
          and made retroactively applicable to cases on
          collateral review; or
10                         SMITH V. DAVIS

while “a properly filed application for State post-conviction
or other collateral review . . . is pending,” the time period of
the statute of limitations does not run. Id. § 2244(d)(2). 2

    In addition to this statutory tolling provision, the one-
year statute of limitations is also subject to the doctrine of
equitable tolling. Holland v. Florida, 560 U.S. 631, 634
(2010). A petitioner seeking equitable tolling bears the
burden of establishing two elements: “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented
timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)).

    The parties disagree about how these elements of
equitable tolling should be applied. Smith argues that the
only diligence required of one seeking equitable tolling is
diligence in remedying the impediment to filing caused by
the extraordinary circumstance. He reads Holland’s first
element, “that he has been pursuing his rights diligently,” to
require no more than he pursue his rights diligently up to a
point: the point at which the impediment to filing caused by
the extraordinary circumstances has been abated. As applied
to his case, Smith argues that because he was diligent in
attempting to contact his attorney to obtain his appellate
record after he learned about the denial of his appeal, it is
irrelevant whether he used his time diligently after he

         (D) the date on which the factual predicate of the claim
         or claims presented could have been discovered
         through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(B)–(D).
     2
       Smith did not file a habeas petition or otherwise seek collateral
review in the state court.
                       SMITH V. DAVIS                        11

received that record, and he is entitled to 66 days of equitable
tolling so that he may have a full 365 days, free of any
impediment to filing caused by an extraordinary
circumstance, in which to file his habeas petition. California,
arguing on behalf of the warden, takes an opposite position.
The State argues that because Smith seeks the extraordinary
remedy of equitable tolling of the statute of limitations, he
must prove he was diligent throughout the time from when
the state conviction became final to the filing of the habeas
petition in federal court. Specifically, here, Smith would
need to show that he was diligent in using the time available
to him after he received his file from his attorney until he
filed his habeas petition. The parties also disagree about
what it means for an extraordinary circumstance to prevent
timely filing. Smith argues the relevant question is whether
the extraordinary circumstance prevented timely filing only
while the circumstance existed. Applied to his case, he
argues that his attorney’s failure to return his appellate
record was an extraordinary circumstance and that he could
not prepare his habeas petition without this record, thereby
satisfying the element. California, again, takes the broader
view and argues the question whether an extraordinary
circumstance prevented timely filing requires a fact-specific
analysis to determine whether the extraordinary
circumstance prevented a petitioner acting with reasonable
diligence from filing within the one-year period.

   Our cases applying the elements of equitable tolling, and
specifically as it applies to habeas petitions brought under
AEDPA, have not been particularly clear and point in
opposite directions. In 2001, a three-judge panel declined to
apply the stop-clock approach sought by Smith to tolling the
AEDPA statute of limitations, but when an en banc court
decided the case on rehearing, that issue was not addressed.
See Allen v. Lewis, 255 F.3d 798, 801 (9th Cir. 2001), rev’d
12                     SMITH V. DAVIS

en banc, 295 F.3d 1046 (9th Cir. 2002) (finding habeas
petition timely filed even absent tolling). Then, later in 2001,
in an immigration case heard by an en banc court, we took
the approach advocated by Smith and held that equitable
tolling in that case applied in a stop-clock manner so that
“the days during a tolled period simply are not counted
against the limitations period,” without evaluating whether
the petitioner had used his available time diligently. Socop-
Gonzalez v. I.N.S., 272 F.3d 1176, 1195 (9th Cir. 2001) (en
banc). We chose this method over an alternative which
would have required us to take a case-specific approach and
evaluate whether a petitioner exercising ordinary diligence
“reasonably could have been expected to bring a claim
within the remainder of the limitations period” after the
extraordinary circumstances ended. Id. at 1194. We found
the stop-clock method easier to administer, more in line with
Supreme Court precedent on equitable tolling, and
consistent with the policy objectives of statutes of
limitations. Id. at 1195.

    In later cases, however, and especially after the Supreme
Court decisions in Pace and Holland, habeas petitioners who
sought to have AEDPA’s statute of limitations equitably
tolled have been required to demonstrate not only
extraordinary circumstances that prevented timely filing
while those circumstances existed but also that the
petitioners, (1) had been diligent in using the time given to
them before and after the extraordinary circumstances were
dispelled, and (2) that the extraordinary circumstances were
the cause of an untimely filing. See, e.g., Fue, 842 F.3d at
656–57; Gibbs v. Legrand, 767 F.3d 879, 884–85 (9th Cir.
2014); Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003);
Lott v. Mueller, 304 F.3d 918, 924–25 (9th Cir. 2002). Our
principal effort to combine these holdings failed to provide
the desired clarity. In Gibbs we declared the applicability of
                       SMITH V. DAVIS                        13

the stop-clock approach to equitable tolling of the AEDPA
statute of limitations. 767 F.3d at 892. However, we
simultaneously acknowledged that “[c]ourts take a flexible,
fact-specific approach to equitable tolling” and required an
evaluation of a petitioner’s diligence before, during, and
after the extraordinary circumstance existed before granting
relief to address the “causation question.” See id. at 885, 892.

     It is because our cases issued in the last two decades on
the proper application of equitable tolling point in opposite
directions that we granted rehearing en banc. To determine
which line of cases controls Smith’s eligibility for equitable
tolling (and therefore which party is correct), we need look
no further than the decisions issued by the Supreme Court in
Pace and Holland. But because it also directs our decision,
we first consider how and why courts have historically
provided equitable relief.

   B. Traditional Equity Jurisprudence

    Equity exists to address specific circumstances and not
to create blanket, prospective rules or applications. See
McQuiddy, 87 U.S. (20 Wall.) at 19 (“There is no artificial
rule on such a subject, but each case as it arises must be
determined by its own particular circumstances.”). As put in
Justice Joseph Story’s Commentaries on Equity
Jurisprudence, because “[i]t is impossible that any code,
however minute and particular, should embrace or provide
for the infinite variety of human affairs, or should furnish
rules applicable to all of them,” equity exists in “every
rational system of jurisprudence” to address the cases in
“which the antecedent rules cannot be applied without
injustice, or to which they cannot be applied at all.” 1 Joseph
Story, Commentaries on Equity Jurisprudence 6–7 (13th ed.
1886); see also The Federalist No. 83 (Alexander Hamilton)
(“[T]he great and primary use of a court of equity is to give
14                     SMITH V. DAVIS

relief in extraordinary cases, which are exceptions to general
rules.”).

    Because equity requires a court to deal with the case
before it, complete with its unique circumstances and
characteristics, courts must take a flexible approach in
applying equitable principles. The Supreme Court has been
clear in this requirement, stating “exercise of a court’s equity
powers . . . . must be made on a case-by-case basis.” Baggett
v. Bullitt, 377 U.S. 360, 375 (1964). And when applying
equitable tolling to the AEDPA statute of limitations in
Holland, the Supreme Court stated “[t]he ‘flexibility’
inherent in ‘equitable procedure’ enables courts ‘to meet
new situations [that] demand equitable intervention, and to
accord all the relief necessary to correct . . . particular
injustices.’” 560 U.S. at 650 (quoting Hazel-Atlas Glass Co.
v. Hartford-Empire Co., 322 U.S. 238, 248 (1944)).

     But despite the flexibility that equity requires, “courts of
equity must be governed by rules and precedents no less than
the courts of law.” Lonchar v. Thomas, 517 U.S. 314, 323
(1996) (citation omitted). As it applies to equitable tolling,
the Supreme Court has been clear that one such rule that
limits a court’s equitable powers is that “a litigant is entitled
to equitable tolling of a statute of limitations only if the
litigant establishes two elements: ‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.’” Menominee Indian Tribe of Wis. v. United
States, 136 S. Ct. 750, 755 (2016) (quoting Holland,
560 U.S. at 649). The first element, requiring diligence on
the part of the litigant, flows from the traditional notion that
“[c]ourts of [e]quity do not sit for the purpose of relieving
parties, under ordinary circumstances, who refuse to
exercise a reasonable diligence or discretion.” 1 Joseph
                       SMITH V. DAVIS                         15

Story, supra, at 226. Put differently, “equity aids the vigilant,
not those who slumber on their rights.” 1 John Norton
Pomeroy, A Treatise on Equity Jurisprudence as
Administered in The United States of America 393 (1881);
see also Pace, 544 U.S. at 419 (“Equity always refuses to
interfere where there has been gross laches in the
prosecution of rights.” (quoting McQuiddy, 87 U.S.
(20 Wall.) at 19)). The second element comes from the fact-
specific inquiry equity demands and the flexible remedies
that it provides. For if an extraordinary circumstance is not
the cause of a litigant’s untimely filing, then there is nothing
for equity to address.

    C. Congressional Intent and Supreme Court Precedent

    The stop-clock method of equitable tolling Smith seeks
runs counter to the traditional notion that “[c]ourts take a
flexible, fact-specific approach to equitable tolling.” Gibbs,
767 F.3d at 885. But he makes two arguments in favor of the
stop-clock approach. First, he claims that applying the stop-
clock approach is consistent with the expressed intent of
Congress. And second, he claims that the Supreme Court has
already decided that the stop-clock approach applies. We
disagree with both points and address them in turn.

        1. Congressional Intent

    In asking us to grant him an additional 66 days to file his
habeas petition, the core of Smith’s argument is that because
Congress established a one-year statute of limitations in
AEDPA, 28 U.S.C. § 2244(d)(1), Congress intended for him
to have 365 days, free of any impediment to filing caused by
an extraordinary circumstance, to draft and file his petition
after his conviction was final. Our dissenting colleagues also
advance this as their principal disagreement with the result
we reach today. Smith urges that the stop-clock remedy he
16                     SMITH V. DAVIS

seeks is merely a fulfillment of obvious congressional intent.
But statutes of limitations are not that simple, and such
congressional intent is not so obvious.

    As the Supreme Court stated in a case relied on heavily
by the dissent, “[s]tatutes of limitations are primarily
designed to assure fairness to defendants.” Burnett v. N.Y.
Cent. R.R. Co., 380 U.S. 424, 428 (1965). The Supreme
Court has also more recently described statutes of limitations
in general as serving the “basic policies of . . . repose,
elimination of stale claims, and certainty about a plaintiff’s
opportunity for recovery and a defendant’s potential
liabilities.” Rotella v. Wood, 528 U.S. 549, 555 (2000). And
more specifically, the Supreme Court has found “[t]he
AEDPA statute of limitation promotes judicial efficiency
and conservation of judicial resources, safeguards the
accuracy of state court judgments by requiring resolution of
constitutional questions while the record is fresh, and lends
finality to state court judgments within a reasonable time.”
Day v. McDonough, 547 U.S. 198, 205–06 (2006) (quoting
Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000)). At their
core, “[s]tatutes of limitations require plaintiffs to pursue
diligent prosecution of known claims,” CTS Corp. v.
Waldburger, 573 U.S. 1, 8 (2014) (internal quotation marks
omitted), and “protect defendants against stale or unduly
delayed claims,” John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133 (2008).

    Requiring a petitioner who files after the deadline
imposed by a statute of limitations has expired to show he
has been diligently pursuing his rights up until the time he
did file his petition does not ignore congressional intent—it
furthers it. The dissent’s contention that the purpose of
AEDPA’s statute of limitations is solely (or primarily) to
protect the time available for the petitioner to file is not one
                       SMITH V. DAVIS                         17

of the purposes for the statute of limitations the Supreme
Court recognized in Day, see 547 U.S. at 205–06, and
ignores the fact that “AEDPA seeks to eliminate delays in
the federal habeas review process,” Holland, 560 U.S. at
648. As the Supreme Court has held, AEDPA’s goal of
elimination of delays does not preclude the operation of
equitable tolling, but it does refute the notion that the
purpose of the limitations period is to protect petitioners
alone. In fact, though we can speculate that Congress
considered the needs of habeas petitioners as a part of its
calculation before enacting a one-year statute of limitations,
all we may say for certain is that Congress intended for states
to have an affirmative defense against habeas petitions filed
more than one year after a conviction became final. See Day,
547 U.S. at 205.

     The dissent would ignore Supreme Court cases
describing statutes of limitations as primarily protecting
defendants—and in the habeas context as ensuring judicial
efficiency and achieving finality for state judgments within
a reasonable time—and elevate an ancillary aim of the
statute of limitations to be its only one. On the other hand,
requiring reasonable diligence through to the moment of
filing protects the rights of all parties without unnecessarily
sacrificing one to the other. Petitioners are able to file habeas
petitions after the limitations period has expired and still
have their claims evaluated on the merits—provided they
were reasonably diligent in using their available time and
showed that an extraordinary circumstance prevented them
from filing within the one-year limitations period. At the
same time, states receive a measure of finality and are not
required to defend against petitions filed after the deadline
by petitioners who have failed to pursue reasonably diligent
prosecution of their claims.
18                     SMITH V. DAVIS

    Though we think our rule best serves the animating
purposes of statutes of limitations, we also dispute the notion
that equitable tolling, practiced consistent with governing
precedent, could undermine the intent of a statute. This is
because as the Supreme Court has recognized, Congress
legislates against the backdrop of the equitable powers of
courts and knows of the rebuttable presumption in favor of
equitable tolling for statutes of limitations. See Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990). In
statutes like AEDPA, where Congress has not acted to
preclude equitable tolling, it intended for equitable tolling to
apply and to be employed consistent with standard equitable
concepts and governing precedent. That is what we do today.

    Insofar as Smith believes Congress’s inclusion of
conditions which reset the start of the one-year limitations
period, or the statutory tolling provision in AEDPA, which
both work to the petitioner’s benefit, see 28 U.S.C.
§ 2244(d)(1)(B)–(D), (d)(2), evinces an intent by Congress
to alter the traditional way equitable tolling applies in
AEDPA and to make its application more favorable to him,
he is mistaken. Equitable tolling operates apart from any
statutory provision. The authority by which courts equitably
toll statutes of limitations comes not from any statute but
instead from our exercise of “[t]he judicial Power . . .
extend[ing] to all Cases, in Law and Equity, arising under
th[e] Constitution, [and] the Laws of the United States.” U.S.
Const. Art. III, § 2. When courts apply equitable tolling to a
statute of limitations, they are exercising that independent
judicial power, consistent with governing law and precedent.
This is distinct from any efforts to interpret a statute or to
effect congressional intent behind statutory language.
                       SMITH V. DAVIS                        19

       2. Supreme Court Precedent

    Smith’s second argument, also favored by the dissent,
that the stop-clock approach to equitable tolling is required
by Supreme Court precedent, fares no better. We find the
proper application of precedent to favor the flexible,
circumstance-specific approach we adopt today.

     In Pace, the Supreme Court addressed equitable tolling
for the first time as it related to the AEDPA statute of
limitations. See 544 U.S. at 418 n.8. At issue was whether
the statute of limitations was tolled while the petitioner’s
untimely, and ultimately procedurally barred, petition for
post-conviction relief was pending in state court. Id. at 410.
Though the case dealt primarily with whether AEDPA’s
statutory tolling provision, 28 U.S.C. § 2244(d)(2), applied
in these circumstances, after it was determined the petitioner
was ineligible for statutory tolling, his claim for equitable
tolling was also addressed. See id. at 418. In addressing the
merits of the equitable tolling claim, the Court stated that to
be eligible for equitable tolling the petitioner was required to
show “(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.”
Id. The Court held that even if it assumed the pendency of
the untimely state court petition “satisfied the extraordinary
circumstance test,” equitable tolling was nevertheless
unavailable because the petitioner had not shown “the
requisite diligence.” Id. To determine whether the petitioner
“has been pursuing his rights diligently,” the Supreme Court
evaluated the petitioner’s diligence both before and after the
20                         SMITH V. DAVIS

existence of the “extraordinary circumstance” and found it
wanting. 3 See id. at 418–19.

     Pace arose in unique circumstances because the state
court conviction became final nearly four years before
AEDPA’s statute of limitations was enacted. However, after
the time period of AEDPA’s statute of limitations had begun
to run in 1996, the petitioner waited nearly seven months
before filing his state court post-conviction relief application
(the pendency of which was assumed to be an “extraordinary
circumstance”), and once that was denied, waited an
additional five months to file for habeas relief in federal
court. Id. at 419. In rejecting Pace’s arguments that he was
entitled to equitable tolling, the Supreme Court emphasized
Pace’s lack of diligence in all time frames, right up to Pace
filing his federal habeas petition. Id. (“Had petitioner
advanced his claims within a reasonable time of their
availability, he would not now be facing any time problem,
state or federal. And not only did petitioner sit on his rights
for years before he filed his [state post-conviction relief]
petition, but he also sat on them for five more months after

     3
       The Supreme Court’s phrasing of the first element required for
equitable tolling is telling. The Court required Pace to demonstrate that
he “has been pursuing his rights diligently”—not that he “pursued,” “had
pursued,” or “has pursued” his rights diligently. This specific phrasing
indicates a need for a petitioner to show his diligence continued up
through the point of filing his habeas petition in federal court. See The
Chicago Manual of Style ¶¶ 5.132, 5.135 (17th ed. 2017). Compare this
to the second element, which is phrased in the simple past tense—“some
extraordinary circumstance stood in his way”—and it is clear the
Supreme Court’s wording is intentional. Coupled with the Court’s
application of the rule for equitable tolling, which evaluated the
petitioner’s diligence before and after the extraordinary circumstance,
and through the date he filed his federal habeas petition, there is no doubt
that diligence is required through the period up to the actual filing of the
petition to merit equitable tolling. See Pace, 544 U.S. at 419.
                           SMITH V. DAVIS                             21

his [state] proceedings became final before deciding to seek
relief in federal court.”) (emphasis in original) (footnote
omitted).

    In addition to laying the foundation for future AEDPA
equitable tolling decisions, a key aspect of Pace is that the
Supreme Court actually had an opportunity to adopt the stop-
clock rule Smith now seeks but refused to do so. Had the
Supreme Court applied the stop-clock approach, the
outcome in Pace would have been reversed, and the federal
petition would have been timely filed, as it was indeed filed
on the 363rd “untolled” day of the limitations period, under
the stop-clock approach. 4 But the Supreme Court did not
apply the stop-clock approach and evaluate only Pace’s
diligence in remedying his extraordinary circumstance. The
Court evaluated Pace’s diligence in all time periods,
including those when he was free from impediments to
preparing and filing his habeas petition that had been caused
by any extraordinary circumstance. The Court found his
“lack of diligence precludes equity’s operation.” Id. Bound

    4
       Pace pleaded guilty to second degree murder in Pennsylvania state
court in February 1986, and in September 1992, the Pennsylvania
Supreme Court denied his appeal. AEDPA was passed on April 24, 1996,
and the newly imposed statute of limitations began to run on April 25,
1996. Pace filed a petition for post-conviction relief in the Pennsylvania
courts on November 27, 1996, which was pending for 974 days, and was
finally denied by the Pennsylvania Supreme Court on July 29, 1999. Pace
then filed a habeas petition in federal district court on December 24,
1999, which was 1337 days after the statute of limitations began to run.
Subtracting the 974 days the state petition for post-conviction relief was
pending from the time it took Pace to file a federal habeas petition after
AEDPA was enacted left potentially 363 “untolled” days had the
Supreme Court chosen to adopt the stop-clock approach and excuse
Pace’s lack of diligence. See 544 U.S. at 410–11. As noted, the Court did
not adopt the stop-clock approach; it noted Pace’s lack of diligence in
filing and affirmed the denial of habeas as untimely.
22                     SMITH V. DAVIS

as we are by the decisions of the Supreme Court, we follow
this same approach today.

    The dissent argues that we misunderstand Pace and that
despite the Supreme Court’s explicit evaluation of Pace’s
lack of diligence in preparing and filing his federal habeas
petition both before and after his state petition was denied,
such evaluation of his diligence was unnecessary to the
decision, if it was even considered at all. The dissent believes
that the Supreme Court put little or no weight on Pace’s lack
of diligence while the limitations period was expiring,
including the seven months before he filed his state petition
for post-conviction relief and the five months following the
rejection of the state petition. See Dissent at 54 (“Essentially,
the Court held that laches already barred Pace’s claim when
AEDPA was enacted, so he was entitled to no additional
consideration after he was accorded an additional year.”).
This is a strange way to read a passage in a Supreme Court
opinion that highlighted this exact lack of diligence. See
Pace, 544 U.S. at 419 (“[Pace] also sat on [his rights] for five
more months after his [state] proceedings became final
before deciding to seek relief in federal court.”) (emphasis
in original). Further, the dissent’s supposition that laches
would have barred Pace’s habeas petition (in the pre-
AEDPA regime) simply because it was filed four years after
his conviction was final finds no support in caselaw. See
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (“[T]here
is no statute of limitations governing federal habeas, and the
only laches recognized is that which affects the State's ability
to defend against the claims raised on habeas.”) (emphasis
added); see also Day, 547 U.S. at 215 (Scalia, J., dissenting)
(“We repeatedly asserted [before AEDPA] that the passage
of time alone could not extinguish the habeas corpus rights
of a person subject to unconstitutional incarceration.”).
Simply put, the dissent’s reading of Pace is too narrow, and
                       SMITH V. DAVIS                        23

we do not adopt such a limited view of the only Supreme
Court case in which the Supreme Court conclusively
determined a habeas petitioner’s eligibility for equitable
tolling.

    It is clear to us that the Court did factor Pace’s lack of
diligence after the statute of limitations was enacted,
including his failure to pursue his rights diligently after the
extraordinary circumstance abated, into its decision to deny
him equitable tolling—a holding as to which no justice
dissented. What relative importance this held when
combined with Pace’s years-long pre-AEDPA delay, and his
additional seven month delay after the statute was enacted,
we cannot say with certainty, but we know it was important
enough for the Court to mention and consider in its opinion.
But whatever relative weight Pace’s various periods of non-
diligence carried, we know for sure that the Supreme Court
did not limit its diligence analysis, as the dissent would have
us do, to the question in Socop-Gonzalez, whether Pace had
been diligent in bringing about the end of his extraordinary
circumstance. See 272 F.3d at 1196. If it had, its decision
would have reversed, rather than affirmed, the judgment
which denied the writ.

    The Supreme Court next considered equitable tolling for
habeas petitions in Holland, where it took an additional step
that weighs against the application of the stop-clock
approach here. In Holland, the Court added an explicit
causation requirement to the rule for equitable tolling
previously stated in Pace. See Holland, 560 U.S. at 649
(“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he
shows ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing.” (emphasis added)
(quoting Pace, 544 U.S. at 418)). As we have previously
24                        SMITH V. DAVIS

described it, whether an impediment caused by extraordinary
circumstances prevented timely filing is a “causation
question” that requires courts to evaluate a petitioner’s
diligence in all time periods—before, during, and after the
existence of an “extraordinary circumstance”—to determine
whether the extraordinary circumstance actually did prevent
timely filing. See Gibbs, 767 F.3d at 892. Though the
causation requirement announced in Holland modified the
extraordinary circumstance prong of the test, it nevertheless
speaks to the diligence required by a petitioner seeking
equitable tolling. This is because the Supreme Court held
that equitable tolling is not available whenever there is an
extraordinary circumstance that impaired the litigant for
some portion of the limitations period. It may apply only
when an extraordinary circumstance prevented a petitioner
from filing before the deadline expired. The only way for a
court to evaluate whether an extraordinary circumstance
caused the untimely filing is to examine and assess the facts
of the case to determine whether a petitioner acting with
reasonable diligence could have filed his claim, despite the
extraordinary circumstance, before the limitations period
expired. This stands in direct contrast to the position we
adopted in Socop-Gonzalez. See 272 F.3d at 1194. 5

   The strongest argument Smith can make against the
weight of this precedent is based on the earlier case of
Burnett v. New York Central Railroad Company, 380 U.S.
424 (1965), which we cited in Socop-Gonzalez when


     5
     We also note that, in Holland, as it had before in Pace, the Supreme
Court evaluated the petitioner’s diligence after the extraordinary
circumstance was dispelled and did not apply a rigid stop-clock rule,
though admittedly, this did not impact the outcome of the case. See
560 U.S. at 653.
                       SMITH V. DAVIS                         25

adopting a stop-clock approach to equitable tolling, see
272 F.3d at 1195–96.

    In Burnett a plaintiff timely filed a Federal Employers’
Liability Act (“FELA”) personal injury claim against his
employer in state court, seeking compensation under the
federal law. The federal claim was subject to a three-year
statute of limitations. Ultimately, the state court dismissed
the claim for improper venue under state law, and the
plaintiff refiled in federal court eight days later but after the
statute of limitations had expired. Burnett, 380 U.S. at 424–
25.

     Addressing the situation, the Supreme Court equitably
tolled the statute of limitations and allowed the plaintiff’s
suit to proceed in federal court. Id. at 434–35. The Supreme
Court commented on the plaintiff’s diligence in bringing the
claim in state court and treated that diligence as a
prerequisite for equitable tolling. See id. at 429 (“Petitioner
here did not sleep on his rights . . . .”). The Court also noted
the plaintiff’s diligence in refiling his claim in federal court
eight days after his state court suit was dismissed, but this
diligence notwithstanding, the Court was clear that it was
tolling the limitations period for the entire period the state
court claim had been pending and not merely for a
“reasonable time.” Id. at 435–36. This holding allowed the
plaintiff to use whatever time remained of the limitations
period when he filed in state court to refile in federal court,
regardless of his diligence in refiling the claim. The
concurrence by Justices Douglas and Black was explicit that
the decision in Burnett to extend the limitations period
automatically, rather than evaluate the plaintiff’s diligence
in refiling in federal court, ran counter to “long-established”
and “familiar” equitable principles. See id. at 437 (Douglas,
J., concurring). We acknowledge that Burnett, absent
26                        SMITH V. DAVIS

subsequent development by the Supreme Court, would seem
to direct a stop-clock approach that allows a plaintiff who
qualifies for equitable tolling through diligence to extend the
limitations period automatically by the full period of time
that the extraordinary circumstance existed, but Pace and
Holland were such developments.

     Whatever the Court’s reason in Burnett for veering from
“long-established” and “familiar” applications of equity,
modern Supreme Court cases citing Burnett have
emphasized the diligence of the petitioner in Burnett, not the
stop-clock application of equitable tolling. See, e.g., Irwin,
498 U.S. at 96 & n.3 (characterizing Burnett as a case “where
the claimant has actively pursued his judicial remedies”);
Int’l Union of Elec., Radio & Mach. Workers v. Robbins &
Myers, Inc., 429 U.S. 229, 238 (1976) (quoting Burnett’s
statement that “[p]etitioner here did not sleep on his rights”);
Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 558 (1974)
(describing Burnett as involving a “suit in a state court
within the three-year time limitation” and being refiled in
federal court “[i]mmediately after the dismissal” in state
court for improper venue). And none of these cases
permitted equitable tolling where a litigant had not been
persistent in pursuing his rights diligently. But most
tellingly, when the Supreme Court explicitly established the
two required elements of equitable tolling in Pace and
Holland—diligence and causation—the Court did not apply
the stop-clock approach, and citations to Burnett were
nowhere to be found. See Holland, 560 U.S. at 634; Pace,
544 U.S. at 418. And since Pace was decided, the only
citation to Burnett by a Supreme Court majority 6 was in


     6
      Burnett was recently cited in a solo dissent in Rotiske v. Klemm,
but the citation served to distinguish equitable tolling from the “fraud-
                          SMITH V. DAVIS                            27

Lozano v. Montoya Alvarez, where the Court cited Burnett,
not for its stop-clock rule, but for the notion that statutes of
limitations are “designed to protect defendants,” an
argument counter to the one Smith and the dissent advance
here. 572 U.S. 1, 14 (2014) (quoting Burnett, 380 U.S.
at 428).

    All of this is to say that any attempt by Smith to claim
Burnett dictates the outcome of this case and excuses his lack
of diligence after he received his files from his attorney is
unavailing. Smith’s argument ignores the fact that, even in
Burnett, the plaintiff exercised diligence consistent with the
rule we announce today, and more importantly, it ignores
recent Supreme Court cases that have rejected the stop-clock
approach and instead meticulously examined petitioner
diligence when determining whether equitable tolling was
warranted.

    Smith’s citation to the recent case of Artis v. District of
Columbia, 138 S. Ct. 594 (2018), likewise does not support
the outcome he seeks. For there, the Supreme Court was
asked to decide the scope of the statutory tolling provision
contained in 28 U.S.C. § 1367, the federal supplemental
jurisdiction statute, and accordingly, was not asked to decide
how to apply equitable tolling or determine whether the
plaintiff had exercised any measure of diligence. See Artis,
138 S. Ct. at 600–01 (describing the case as “resolv[ing] the
division of opinion among State Supreme Courts on the
proper construction of § 1367(d)”).

    Artis addressed a narrow question, whether
section 1367(d)—not the doctrine of equitable tolling—

based discovery rule” and does not provide support to Smith’s arguments
here. See 140 S. Ct. 355, 363–64 (2019) (Ginsburg, J., dissenting).
28                     SMITH V. DAVIS

functioned to suspend state periods of limitations for the
entire time state claims were pending in federal court, plus
thirty days, or whether the law provided merely a thirty-day
grace period for a litigant to refile in state court after a
federal court declined supplemental jurisdiction over the
state-law claim. Id. The answer to this question has nothing
to do with the issue we address today. The Supreme Court’s
decision that the proper way to read section 1367(d) is to
suspend the running of the statute of limitations, and not
merely to grant litigants a 30-day grace period, was based on
a plain text reading of section 1367(d), not principles of
equity. See id. at 603–04. However, in rendering its decision,
the Court noted that it commonly uses the “terms ‘toll’ and
‘suspend’ interchangeably,” id. at 601–02, and that prior
decisions of the Court had described equitable tolling as
“paus[ing] the running of” a statute of limitations, id. at 602
(quoting CTS Corp. v. Waldburger, 573 U.S. 1, 9 (2014)). It
is based on these statements that Smith and the dissent argue
Artis supports the position that Smith is entitled to equitable
tolling even if he did not use the time available to him
diligently after he received his appellate record from his
attorney.

     Smith asks us to read the statement in Artis that equitable
tolling may serve to pause the period of a statute of
limitations as excusing him from the requirements for
equitable tolling explicitly described in Pace and Holland.
Artis does not support such an argument. Artis had almost
nothing to say about equitable tolling, and what it did say did
not alter the rule that “a petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Holland, 560 U.S. at 649 (internal quotation marks omitted).
The cases Artis cited for the idea that equitable tolling
                            SMITH V. DAVIS                                29

pauses, or suspends, a statute of limitations do not suggest
otherwise and do not support an application of equitable
tolling in a circumstance where a litigant has not diligently
pursued his rights before, during, and after the existence of
an extraordinary circumstance. 7



    7
       Artis characterized CTS Corp. as “describing equitable tolling as
‘a doctrine that pauses the running of, or ‘tolls’ a statute of limitations.’”
Artis, 138 S. Ct. 602 (quoting CTS Corp., 573 U.S. at 9). This is true, but
CTS Corp. is explicit that equitable tolling applies only “when a litigant
has pursued his rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.” 573 U.S. at 9 (quoting
Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)). Artis also quotes
United States v. Ibarra, which predates Pace and Holland, but states,
“[p]rinciples of equitable tolling usually dictate that when a time bar has
been suspended and then begins to run again upon a later event, the time
remaining on the clock is calculated by subtracting from the full
limitations period whatever time ran before the clock was stopped.”
502 U.S. 1, 4, n.2 (1991) (per curiam). Ibarra addressed when the
government’s 30-day window to appeal district court orders in criminal
cases began and did not involve an application of equitable tolling. It
thus provides little guidance on how to determine eligibility for equitable
tolling, but the opinion cited a Seventh Circuit opinion by Judge Posner,
Cada v. Baxter Healthcare Corporation, 920 F.2d 446 (7th Cir. 1990),
as standing for the “principles of equitable tolling.” Ibarra, 502 U.S. at
4, n.2. Cada is explicit that equitable tolling is available only when the
plaintiff exercises “all due diligence,” including the diligence required to
“bring suit within a reasonable time after” an extraordinary circumstance
ends and that the period of limitations is not tolled automatically.
920 F.2d at 451, 453; id. at 452 (“We do not think equitable tolling
should bring about an automatic extension of the statute of limitations
by the length of the tolling period or any other definite term. It is, after
all, an equitable doctrine. It gives the plaintiff extra time if he needs it.
If he doesn’t need it there is no basis for depriving the defendant of the
protection of the statute of limitations.” (citation omitted)); see also
Socop-Gonzalez, 272 F.3d at 1194 (citing Cada as rejecting a stop-clock
approach that ignored a lack of diligence after the removal of the
extraordinary circumstance that impeded filing).
30                     SMITH V. DAVIS

     Artis did not involve a determination of whether a
litigant was eligible for tolling (equitable or otherwise) and
addressed no more than the mechanical calculation of the
new litigant-specific limitations deadline, after a court
makes the determination that the litigant qualifies for tolling.
See Artis, 138 S. Ct. at 598–99. The case sheds no light on
the underlying question of which litigants are eligible for
such extended limitations deadlines. In cases involving
equitable tolling, Pace and Holland still govern that inquiry.
At most, the effect of Artis’s observation that equitable
tolling may serve to “pause[] the running of . . . a statute of
limitations,” id. at 602, was to confirm that the maximum
additional time, beyond the period of limitations, available
to a litigant otherwise eligible for equitable tolling, is equal
to the amount of time that the extraordinary circumstance
that impeded timely filing existed. As far as we know, this
was not in dispute.

     D. The Proper Rule of Equitable Tolling of Statutes of
        Limitations

     In view of the historic practice of courts of equity and
modern Supreme Court precedent governing equitable
tolling, we make two related holdings. First, for a litigant to
demonstrate “he has been pursuing his rights diligently,”
Holland, 560 U.S. at 649, and thus satisfies the first element
required for equitable tolling, he must show that he has been
reasonably diligent in pursuing his rights not only while an
impediment to filing caused by an extraordinary
circumstance existed, but before and after as well, up to the
time of filing his claim in federal court. This rule is in accord
with the traditional concept that equity requires diligence
and is also consistent with recent Supreme Court practice.
Though we today reject the stop-clock approach we took in
Socop-Gonzalez for evaluating when a petitioner must be
                           SMITH V. DAVIS                              31

diligent, 8 this does not alter what it means for a petitioner to
exercise diligence. On that issue the rule remains that “[t]he
diligence required for equitable tolling purposes is
‘reasonable diligence,’ not ‘maximum feasible diligence.’”
Holland, 560 U.S. at 653 (citations omitted). In determining
whether reasonable diligence was exercised courts shall
“consider the petitioner’s overall level of care and caution in
light of his or her particular circumstances,” Doe v. Busby,
661 F.3d 1001, 1013 (9th Cir. 2011), and be “guided by
‘decisions made in other similar cases . . . with awareness of
the fact that specific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate
case.’” Fue, 842 F.3d at 654 (quoting Holland, 560 U.S.
at 650). What we make clear is that it is not enough for a
petitioner seeking an exercise of equitable tolling to attempt
diligently to remedy his extraordinary circumstances; when

    8
       As mentioned previously, Socop-Gonzalez rested its decision to
apply equitable tolling in a manner that ignored a litigant’s diligence
after remedying an extraordinary circumstance on three factors:
(1) congressional intent; (2) Supreme Court precedent; and (3) ease of
administration. 272 F.3d at 1195. Today we explicitly reject the first two
rationales and hold that diligence only up to the point of the removal of
the impediment caused by the extraordinary circumstances is not enough
to merit equitable tolling. In 2001, we did not have the benefit of the
Supreme Court’s decisions in Pace and Holland, which undermine the
continued validity of the first two reasons we gave for adopting the stop-
clock approach. This leaves just the third rationale: ease of
administration. Standing alone, whether the stop-clock approach is easier
to administer than the rule we announce today is debatable but ultimately
of no consequence. Pace and Holland illustrate that in application of the
extraordinary remedy of equitable tolling, individual, and perhaps
painstaking, analysis of the specific case overcomes considerations of
convenience. If ease of administration is indeed a better policy, it is one
for Congress, not the courts, to adopt. But we have no doubt that district
courts will be able to apply equitable tolling consistent with the
traditional concepts of equity, Supreme Court precedent, and the rule we
announce today.
32                          SMITH V. DAVIS

free from the extraordinary circumstance, he must also be
diligent in actively pursuing his rights. 9


     9
       Contrary to the belief of the dissent we make no holding “that
364 days is always too long a period within which to prepare a federal
habeas petition.” Dissent at 65. Nor do we announce a rule that any time
long stretches of time pass without a petitioner acting on a habeas
petition is it necessarily a situation where a petitioner failed to exercise
reasonable diligence. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir.
2001) (finding a petitioner’s wait of 21 months before seeking an update
on his petition from a state court was an exercise of reasonable
diligence).

     The dissent’s characterization of our court’s application of equitable
tolling as based on such arbitrary considerations as “the length of each
chancellor’s foot,” Dissent at 41, not only disserves our judiciary, it
ignores our safeguard against such arbitrariness: our standard of review
in habeas cases is de novo. See ante at 8–9. Such characterization is
particularly inept here where the magistrate judge carefully weighed the
evidence and fully explained her decision.

      We also find the dissent’s criticism that today’s decision provides
no guidance for future district courts or three-judge panels to decide
cases involving requests for equitable tolling misplaced. As an initial
matter, our precedents, Socop-Gonzalez notwithstanding, already require
courts to go through the general diligence analysis we outline today. See
Gibbs, 767 F.3d at 892. And as discussed previously, one of the benefits
of equitable doctrines is that they allow courts to fashion remedies
tailored to the circumstances of the case, within the bounds of governing
precedent. Further, the evaluation of diligence is hardly new territory for
trial courts. For example, in evaluating motions for new criminal trials
or relief from civil judgments, courts must regularly evaluate whether
newly discovered evidence could have been discovered earlier with
reasonable diligence. See Fed. R. Civ. P. 60(b)(2); United States v.
Harrington, 410 F.3d 598, 601 (9th Cir. 2005). And finally, both our
approach and the one favored by the dissent, require courts to evaluate
whether a petitioner, who is imprisoned and usually filing pro se,
exercised the required diligence. The difference between our rule and the
dissent’s, as it relates to a court’s evaluation of a petitioner’s diligence,
                           SMITH V. DAVIS                             33

    Second, and relatedly, it is only when an extraordinary
circumstance prevented a petitioner acting with reasonable
diligence from making a timely filing that equitable tolling
may be the proper remedy. This rule aligns with the flexible
and fact-specific nature of equity and is directed by Supreme
Court precedent. To be clear, this rule does not impose a
rigid “impossibility” standard on litigants, and especially not
on “pro se prisoner litigants—who have already faced an
unusual obstacle beyond their control during the AEDPA
limitation period.” Fue, 842 F.3d at 657 (quoting Sossa v.
Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013)). In evaluating
whether an “extraordinary circumstance stood in [a
petitioner’s] way and prevented timely filing,” a court is not
bound by “mechanical rules” and must decide the issue
based on all the circumstances of the case before it. Holland,
560 U.S. at 649–50 (internal quotation marks omitted).

    E. Equitable Tolling Applied to Smith’s Petition

    Accepting Smith’s allegations as true, and assuming that
his attorney’s failure to contact him for five months after his
state appeal was denied 10 was sufficiently egregious so that
it could qualify as an “extraordinary circumstance” that
created an impediment to filing under the second required
element for equitable tolling, we nevertheless conclude
Smith has not exercised the necessary diligence to satisfy the


is that one requires an evaluation of a petitioner’s diligence across the
whole time involved, and the other conducts the same inquiry but for just
part of the time.
    10
        This includes three months after the California Supreme Court
denied Smith’s appeal but before the decision was finalized, and an
additional 66 days after the decision was final and the time period of the
statute of limitations began to run.
34                         SMITH V. DAVIS

first element and may not have the statute of limitations
tolled to excuse his late filing.

    Smith’s appeal was denied by the California Supreme
Court on March 12, 2014 and became final on June 10, 2014.
According to Smith, he learned from his family that his
appeal had been denied on May 10, 2014, and he received
his appellate record from his attorney on August 15, 2014.
Smith’s habeas petition was filed in the district court on
August 14, 2014, 364 days after Smith received his appellate
record and 65 days after the limitations period expired.
Smith’s habeas petition was a 48-page document consisting
of 20 pages of facts and background and 28 pages of legal
analysis and argument. The petition consisted almost
exclusively of items written previously by Smith’s court-
appointed attorney and submitted in briefs to the California
appellate courts. The facts and background were copied with
only minor alterations from Smith’s brief to the California
Court of Appeal. 11 And the legal argument section was taken
nearly verbatim from the legal arguments previously
submitted by Smith to the California Supreme Court, though
Smith omitted from his federal habeas petition a challenge
to jury instructions he had raised to the state supreme court.

    In the district court, after California moved to dismiss
Smith’s petition as untimely, Smith filed an opposition brief
and supporting declaration. In his opposition papers Smith
argued that he was diligent in attempting to maintain contact
with his attorney and in seeking the return of his case file
after he learned his California Supreme Court appeal had

     11
       Smith’s brief to the California Supreme Court is part of the record
before us, but his brief to the California Court of Appeal is not. However,
we may take judicial notice of this document and do so. See Trigueros v.
Adams, 658 F.3d 983, 987 (9th Cir. 2011).
                           SMITH V. DAVIS                               35

been denied. Citing Gibbs, Smith acknowledged that our
cases have evaluated “[d]iligence after an extraordinary
circumstance is lifted” 12 in making determinations about
equitable tolling. But Smith alleged no facts, argued no
circumstances, and made no claim that he had been diligent
in preparing his habeas petition after he had received his file
from his attorney. The only diligence with which Smith
claimed to have acted was in contacting his attorney to
remedy the extraordinary circumstance that he lacked his
case file. As we have now held, this was not enough.

    The problem with Smith’s request for equitable tolling is
not simply that he took 364 days after receiving his case file
to file his habeas petition. We have no trouble imaging a
circumstance where a petitioner is impeded by extraordinary
circumstances from working on a habeas petition for two
months, but after those circumstances are dispelled, uses the
next 364 days diligently, files his petition, and has the entire
two months during which the extraordinary circumstances
existed equitably tolled. What reasonable diligence would
look like in those circumstances varies based on the specifics
of the case, but in every instance reasonable diligence
seemingly requires the petitioner to work on his petition with
some regularity—as permitted by his circumstances—until
he files it in the district court. The problem with Smith’s

     12
        Smith also noted that in Gibbs we stated a lack of diligence after
an extraordinary circumstance ended was “not alone determinative” in
deciding eligibility for equitable tolling. See 767 F.3d at 892. But despite
this statement in Gibbs, Smith was on notice by other statements in Gibbs
that we would consider his diligence after the extraordinary circumstance
ended as part of our overall assessment to determine whether he was
entitled to equitable tolling. See id. When responding to the State’s
motion to dismiss, Smith had the necessary notice and incentives to
claim he had diligently pursued his rights after he received his case file
from his attorney, but he did not do so.
36                     SMITH V. DAVIS

request for equitable tolling is that when given the
opportunity to explain how he had used his time diligently
after receiving his file from his attorney and thus merited
equitable tolling, Smith made no allegation or claim in his
opposition to the motion to dismiss or his supporting
declaration that he had acted diligently but had not been able
to file earlier.

     Nor is the only trouble with Smith’s request for equitable
tolling the fact that his habeas petition consisted almost
exclusively of materials that had been prepared and filed in
state courts years earlier. We agree with the Seventh Circuit
that when a petitioner acts diligently to prepare a habeas
petition, it matters not if he recycles arguments previously
made by counsel to state courts. See Socha v. Boughton,
763 F.3d 674, 688 (7th Cir. 2014). But again, the petitioner
must act with diligence in preparing his petition to warrant
equitable tolling; Smith has not alleged that he was diligent
in this manner.

     In the absence of any claim by Smith that he was diligent
in preparing his habeas petition after he received his case
file, we fail to see how Smith exercised reasonable diligence
and why, if he had, Smith would have been unable to file a
habeas petition in the district court before the time period of
the statute of limitations expired on June 10, 2015. The
district court correctly held Smith had not met the criteria for
equitable tolling and denied Smith’s habeas petition as
untimely.

     AFFIRMED.
                        SMITH V. DAVIS                          37

BERZON, Circuit Judge, joined by THOMAS, Chief Judge,
and MURGUIA, WATFORD, and HURWITZ, Circuit
Judges, dissenting:

    Anthony Smith’s state court convictions became final on
June 10, 2014. 1 For the sixty-six days that followed, Smith’s
former attorney failed to deliver Smith’s appellate record to
him despite repeated requests. Smith filed his federal
petition for habeas corpus 364 days after his record arrived.

    The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) contains a statute of limitations of 365 days for
the filing of a federal petition for habeas corpus challenging
a state conviction. 28 U.S.C. § 2244(d). Congress could, of
course, have opted for more time or less. But it determined
that 365 days is the number of days reasonably required for
habeas petitioners to prepare their petitions. In doing so,
Congress required habeas petitioners to exercise a certain
level of diligence: the diligence required to file within
365 days.

     Holland v. Florida held that Congress intended that the
doctrine of equitable tolling apply to this 365-day limitations
period. 560 U.S. 631, 645 (2010). To obtain equitable
tolling, a habeas petitioner must show “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented
timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). The majority today holds that
under this standard, if an extraordinary circumstance existed
for a part (or all) of the 365 days Congress prescribed as the
period available for preparing a federal habeas petition, the

    1
      Smith was convicted of one count of residential burglary, two
counts of robbery, and one count of forcible oral copulation.
38                         SMITH V. DAVIS

petitioner may have less than 365 days to complete the
petition, based on a free-floating judicial determination of
whether, notwithstanding the impediment, the petitioner was
sufficiently diligent during the less-than-365 day period
available to him. 2

    The central problem with the majority’s approach
concerns its substitution of its own determination of the time
needed to file for Congress’s clear prescription that
petitioners are to be given 365 days to draft and file a federal
habeas petition. In the majority’s view, if equitable tolling is
invoked, no deference is owed to Congress’s determination
of the amount of time reasonably required to prepare a
petition. 3 For the majority, “the judicial Power” furnishes
authority to impose, on an ad hoc basis, individual judges’
own views as to the time it should take to prepare and file a
habeas petition. Maj. Op. at 18 (citing U.S. Const. Art. III,
§ 2).

   In the absence of a statute of limitations, of course,
judges have no choice but to draw discretionary lines as to
when a particular claim should be time-barred. 4 But where a

     2
       The majority assumes that Smith’s attorney’s wrongful
withholding of his records constituted an extraordinary circumstance,
and so we do as well. Majority Opinion (“Maj. Op.”) at 33.
     3
        The majority views the congressionally established limitations
period as a one-way ratchet where equitable tolling is at issue, such that
judges can provide less total time than the statutory limitations period
once the time covered by the extraordinary circumstance is subtracted
but not more. See Maj. Op. at 30. On this view, the congressional
determination of the time needed to file merits deference when equitable
relief is to be denied but not when it is to be granted. We are not told
why that should be the case.
   4
     That is how the laches doctrine operates. See, e.g., Int’l Tel. & Tel.
Corp. v. Gen. Tel. & Elecs. Corp., 518 F.2d 913, 926 (9th Cir. 1975).
                          SMITH V. DAVIS                            39

legislature has determined the time it should reasonably take
to file an initial pleading, there is no need for such ad hoc,
inevitably inconsistent, decision-making, and so no excuse
for it. Here, Congress has spoken—the period of time a
petitioner may devote to preparing a federal habeas petition
is one year, or 365 days. As one of our colleagues put it some
time ago with regard to the issue before us, “[a] year is a year
is a year.” Lott v. Mueller, 304 F.3d 918, 927 (9th Cir. 2002)
(McKeown, J., concurring). The majority’s insistence to the
contrary notwithstanding, we are bound to respect
Congress’s policy judgment to the degree that we can even
when applying an equitable doctrine.

     This fundamental precept was at the core of this Court’s
carefully considered en banc opinion in Socop-Gonzalez v.
I.N.S., 272 F.3d 1176 (9th Cir. 2001). There, we rejected an
interpretation of equitable tolling’s diligence requirement
which would have empowered judges to deny equitable
relief whenever they believed that a claimant reasonably
could have filed faster—that is, the version of equitable
tolling the majority now enthusiastically adopts. Id. at 1194–
95. Socop-Gonzalez held instead that where a petitioner is
prevented from timely filing because an extraordinary
circumstance stood in his way for part of the limitations
period and is otherwise eligible for equitable tolling, he is
afforded the time he lost during the extraordinary
circumstance. Id. at 1195–96. That is, the extraordinary
circumstance “stops the clock until the occurrence of a later
event that permits the statute to resume running.” 5 Id.

    5
      As I discuss later, the Supreme Court has recently explained that
this understanding of what “tolling” means comports with both the
ordinary legal meaning of the word of the word “tolling” and its use in
the equitable tolling context. Artis v. District of Columbia, 138 S. Ct.
594, 601–02 (2018).
40                     SMITH V. DAVIS

at 1195. The stop-clock approach to equitable tolling, as we
said in Socop-Gonzalez, is more respectful of congressional
intent, more compatible with the common understanding of
“tolling” and with Supreme Court precedent, and more
sensitive to the realities of judicial administration than one
which depends on the judge’s “subjective view of how much
time a plaintiff reasonably needed to file suit.” Id. at 1195–
96.

     After Socop-Gonzalez, some opinions of this court
muddled Socop-Gonzalez’s clarity by focusing on whether a
petitioner could have filed faster than he did after an
extraordinary circumstance had abated in deciding whether
a statute of limitations was equitably tolled. See Gibbs v.
Legrand, 767 F.3d 879, 890–91 (9th Cir. 2014). Gibbs noted
the tension between examining a petitioner’s post-
extraordinary-circumstance diligence in the abstract and
Socop-Gonzalez’s teaching that “courts should not take it
upon themselves to decide how much time a claimant needs
to file a federal case.” Id. at 891–92. Attempting to reconcile
these two strains, Gibbs explained that equitable tolling’s
diligence requirement ensures that the allegedly
extraordinary circumstance actually prevented timely
filing—that is, helps establish causation—but does not invite
judges to substitute a judicial determination of the time it
should take to file for a legislative one. Id. at 892.

    Starting anew and purporting to return to “principles of
traditional equity,” the majority opinion overrules Socop-
Gonzalez and holds that equitable tolling may be denied
whenever a judge concludes—on an entirely ad hoc basis—
that a claimant reasonably could have filed his lawsuit faster
than he did once the extraordinary circumstance was
removed. Maj. Op. at 6. The majority’s analysis—and its
excuse for overruling Socop-Gonzalez—rests in large part
                      SMITH V. DAVIS                       41

on its limited understanding of equity’s history, portraying
that history as establishing little more than the proposition
that equity is flexible and fact-specific. That proposition is
accurate, as far as it goes. But the majority’s version of
“traditional equity” is incomplete, disregarding a strong and
competing development in American equity jurisprudence:
the effort to restrain the discretion courts of equity once
wielded and to roundly reject a view in which equity depends
on “the length of each chancellor’s foot.” Lonchar v.
Thomas, 517 U.S. 314, 323 (1996) (citing 1 J. Story,
Commentaries on Equity Jurisprudence 16 (13th ed. 1886)).
With regard to equitable tolling in particular, that restraint
has been effectuated in large part through respect for
legislative determinations of the total period of time a
plaintiff or petitioner should have to prepare initial
pleadings. By brushing aside any need to incorporate that
legislative determination into its equitable tolling analysis,
and by substituting a pure chancellor’s-foot approach to
determining whether the plaintiff or petitioner worked
quickly enough, the majority flaunts the understanding of
equity jurisprudence that has developed in this country since
its founding.

    Incorporating its one-sided understanding of the place of
judicial discretion in American equity jurisprudence, the
majority opinion goes on to misapply or disregard the three
considerations on which Socop-Gonzalez rested its stop-
clock approach—congressional intent, Supreme Court
precedent, and administrability. As to Supreme Court
precedent in particular, the majority insists that that
precedent has fundamentally changed since Socop-
Gonzalez. It decidedly has not.

   At the end of its opinion, the majority applies its new
non-standard to the facts of this case. In doing so, the
42                     SMITH V. DAVIS

majority makes clear that its talk of “the fact-specific inquiry
equity demands” serves largely to obfuscate an approach that
plucks from the air—or measures by the chancellor’s foot—
the conclusion that, despite a congressionally-enacted 365-
day limitations period, 364 days is too long a period within
which to prepare a habeas petition. With Socop-Gonzalez
abandoned, such arbitrary judgments, disregarding both the
legislative judgment about the total time period that should
be available to file a lawsuit and the facts of the particular
case, will come to predominate applications of equitable
tolling.

 I. American Equity Jurisprudence and Judicial Restraint

    The majority begins its analysis with a discussion of
“Traditional Equity Jurisprudence,” purporting to undertake
a historical analysis. Maj. Op. at 13–15. I therefore begin as
well with some history concerning equity jurisprudence, but
with an emphasis absent from the majority’s approach—the
care taken in this country to ensure that judicial exercise of
its equitable authority comfortably coexists with closely
related legislative enactments. This discussion will prove
helpful, I hope, in explaining why the majority’s paean to
principles of traditional equity offers no reason to abandon
Socop-Gonzalez’s well-considered en banc holding.

    Equitable tolling dates from an era in English history
when the separation of legislative and judicial power was
incomplete. Until the Glorious Revolution of 1688, the
Crown “had pretensions to independent legislative
authority,” and the authority of English judges derived from
their status as agents of the Crown. John F. Manning,
Textualism and the Equity of the Statute, 101 Colum. L. Rev.
1, 36–37 (2001). Such judges would not have had any sense
that their application of principles of equity might “usurp[]
the responsibilities of a different branch” of government. Id.
                      SMITH V. DAVIS                       43

at 42–43, 53; see also McQuiggin v. Perkins, 569 U.S. 383,
409–10 (2013) (Scalia, J., dissenting).

    In the American system, by contrast, fears of judicial
usurpation of legislative authority have driven equity
jurisprudence from the first. During the debates over the
Constitution’s ratification, prominent anti-federalists
objected to Article III’s extension of the judicial power to
cases in equity on precisely such grounds. “It is a very
dangerous thing to vest in the same judge power to decide
on the law, and also general powers in equity; for if the law
restrain him, he is only to step into his shoes of equity, and
give what judgment his reason or opinion may dictate.”
Letters from the Federal Farmer No. III (Oct. 10, 1787), in 2
The Complete Anti-Federalist 234, 244 (H. Storing ed.
1981). In particular, the anti-federalists worried that the
grant of powers in equity would enable judges to avoid
“being confined to the words or letter” of the Constitution or
of legislative enactments. Brutus No. XI (Jan. 31, 1788), in
id. at 417, 419.

     Those who favored ratification of the Constitution
shared these concerns to some extent. They responded to
critiques of federal equity jurisdiction by emphasizing that
Article III judges would be “bound down by strict rules and
precedents, which serve to define and point out their duty in
every case that comes before them.” The Federalist No. 78
(Alexander Hamilton). “Although the purpose of a court of
equity was ‘to give relief in extraordinary cases, which are
exceptions to general rules,’ ‘the principles by which that
relief is governed are now reduced to a regular system.’”
Trump v. Hawaii, 138 S. Ct. 2392, 2426 (2018) (Thomas, J.,
concurring) (quoting The Federalist No. 83 (Alexander
Hamilton)).
44                    SMITH V. DAVIS

    After the ratification of the Constitution—with Article
III’s grant of jurisdiction over “all Cases, in Law and
Equity,” U.S. Const. Art. III, § 2—concerns remained that
judges would exercise their powers in equity to undermine
legislative and executive authority. Alarmed at (what he saw
as) a tendency to treat equity “as a source of nearly
unbounded judicial discretion,” Justice Joseph Story—
quoted by the majority several times, but without
acknowledgement of his disquiet about the exercise of
unbridled judicial power in the guise of equity
jurisprudence—devoted himself to developing equity
jurisprudence into a “science.” Gary L. McDowell, Equity
and the Constitution 74–76 (1982). Justice Story’s purpose
in doing so was to assure that the discretion equity confers
would be used “not to act arbitrarily, according to men’s
wills and private affections” but would rather “be governed
by the rules of law and equity, which are not to oppose, but
each in its turn to be subservient to the other.” J. Story, 1
Commentaries on Equity Jurisprudence § 13 (14th ed.
1918).

    Attention to congressional intent proved critical to the
effort in this country to restrain the exercise of powers in
equity and thereby to guard against judicial usurpation of the
coordinate branches of government. So, although Article III
endows the judiciary with equity jurisdiction, American
courts have (until now) never viewed equitable relief as
purely a matter of judicial discretion, created anew for each
case and each circumstance. Rather, federal courts have
avoided the separation-of-powers problems that might
otherwise be posed by the broad and idiosyncratic powers
English courts of equity once wielded by recognizing that
legislatures understand that they act against the backdrop of
existing law, including equitable principles. Concomitantly,
judges exercising their equitable authority endeavor to
                       SMITH V. DAVIS                         45

incorporate legislative enactments to the degree consistent
with equitable doctrines. Given that dual dynamic, whether
equitable relief is appropriate in a particular instance
necessarily incorporates considerations of legislative intent.

    In the famous case of Riggs v. Palmer, for example, a
statute governing wills was interpreted to incorporate the
equitable doctrine of unclean hands on the ground that the
legislature intended for the doctrine to apply, because the
legislature could not have meant to allow murderers to
inherit the estates of those they murdered. 115 N.Y. 506,
510–12 (1889). Similarly, the Supreme Court has repeatedly
declared that whether to apply equitable tolling is
“fundamentally a question of statutory intent.” Lozano v.
Montoya Alvarez, 572 U.S. 1, 10 (2014). It was on this basis
that Holland held that Congress intended AEDPA’s statute
of limitations to be equitably tolled in appropriate
circumstances. 560 U.S. at 645–46; see also McQuiggin,
569 U.S. at 398 n.3; id. at 409–10 (Scalia, J., dissenting).

    If a statute of limitations has been adopted, legislative
intent determines not only whether equitable tolling is
available, but also, if it is available, how it is to be applied.
Statutes of limitation reflect policy judgments as to the
length of time within which plaintiffs or petitioners should
reasonably be expected to file. To take one early English
example, a statute codified a common law limitations period
based on “a reasonable time” that it would take a party,
“wheresoever he dwelt in England,” to reach the court of
justice “wheresoever” it sat. Edward Coke, The Second Part
of the Institutes of the Laws of England 567 (1642).

    Equity jurisprudence has long been sensitive to such
legislative determinations of the time it should take a
claimant to file. As early as 1767, English courts recognized:
46                           SMITH V. DAVIS

         Expedit reipublicae ut sin finis litum [it is in
         the public interest that lawsuits come to an
         end] is a maxim that has prevailed in this
         court in all times without the help of an act of
         Parliament. But as the court has no
         legislative authority, it could not properly
         define the time of bar by a positive rule to an
         hour, a minute, or a year. It was governed by
         circumstances. But as often as Parliament had
         limited the time of actions or remedies to a
         certain period of legal proceedings, the Court
         of Chancery adopted that rule, and applied it
         to similar cases in equity.

J. Story, 3 Commentaries on Equity Jurisprudence § 1972
n.2 (14th ed. 1918) (quoting Smith v. Clay, Ambl. R. 645
(1767)) (emphasis added). To put the same point another
way: In the absence of a statute of limitations, courts engage
in a free-wheeling, independent assessment of how much
time a claimant reasonably should take to pursue his claim,
and how much delay should bar relief. 6 But once the
legislature has made a policy determination as to the precise
amount of time a claimant reasonably should have to file
under ordinary circumstances, that policy determination sets
a baseline for equity’s operation. So, where a limitations
period has been fixed by statute, courts of equity have acted
“positively in obedience to such statute,” 2 J. Story,


     6
       “Equity, when there is no statute of limitations applicable to suits,
fashions its own time limitations through laches.” Int’l Tel. & Tel. Corp.,
518 F.2d at 926. But even in that circumstance, courts usually shy away
from making their own policy judgments as to the time it should take to
file: “Although analogous statutes do not necessarily control, equity will
look to the statute of limitations relating to actions at law of like character
and usually act or refuse to act in comity with such statutes.” Id. (citation
omitted).
                       SMITH V. DAVIS                        47

Commentaries on Equity Jurisprudence § 705 (14th ed.
1918).

    Against this long tradition of restraining equitable
discretion out of respect for the separation of powers, the
majority relies on “[t]he judicial Power” alone for the
proposition that its application of equitable principles need
not attend to congressional intent. Maj. Op. at 18 (citing U.S.
Const. Art. III, § 2). Once equitable tolling is invoked, the
majority insists, judges are free to determine for themselves,
in the name of equity, how long a filing should take to
prepare, entirely disregarding the period of time chosen by
Congress in the course of determining how long the
functional limitations period should be. Id.

    The fundamental problem with the majority’s bald
invocation of “[t]he judicial Power” is that it proves the anti-
federalists’ original point. Maj. Op. at 18 (citing U.S. Const.
Art. III, § 2). Equitable tolling’s place in the American
system has been justified on the assumption that Congress
acts against a stable backdrop of equity jurisprudence and
common law. That assumption makes sense only if the
background doctrines Congress assumes to apply are
effectuated so that they coexist with rather than flaunt
legislative determinations. In the equitable tolling context,
that coexistence requires respect for the filing periods
Congress has deemed reasonable. By instead invoking the
judicial power as a source of raw authority to declare, on a
blank slate, how much time a “diligent” habeas petitioner
needs to file a federal habeas petition, the majority interprets
Article III to be the very judicial supremacy provision its
opponents feared.
48                         SMITH V. DAVIS

              II. AEDPA and Congressional Intent

     Consistently with the applicable principles of equity,
Socop-Gonzalez invoked congressional intent as one of three
considerations counseling in favor of the “stop-clock” rule.
Pausing the limitations period, rather than replacing it with
one invented by judges, avoids the separation-of-powers
problem posed when a court “usurps congressional authority
. . . [by] rewrit[ing] the statute of limitations” and
“substituting its own subjective view of how much time a
plaintiff reasonably needed to file suit.” 272 F.3d at 1196.
By reversing that well-considered holding, the majority
institutes a new regime in this Circuit—a regime which
sanctions the very judicial usurpation of congressional
authority we warned against in Socop-Gonzalez.

     Congress made a considered judgment in AEDPA that
365 days is the period of time a prisoner should have to
prepare and file a habeas petition. As Congress intended
AEDPA’s limitations period to be subject to equitable
tolling, Holland, 560 U.S. at 645, it necessarily set the length
of the limitations period with the understanding that, when
extraordinary circumstances arise, a longer period is
permitted for filing. How much longer? As we explained in
Socop-Gonzalez, under the stop-clock approach to equitable
tolling, when an extraordinary circumstance prevents a
claimant from timely filing, the claimant receives the full
time Congress determined he may take to file—365 days—
but not more. The statute of limitations resumes running for
any time remaining in it after the extraordinary circumstance
that precluded filing has ended. 7 At the same time, the

     7
     I note that the stop-clock rule provides the rationale absent from
the majority’s approach, see n.3, supra, for ending the limitations period
on a day certain even when there is equitable tolling. Here, the
                          SMITH V. DAVIS                             49

diligence requirement ensures that the claimed extraordinary
circumstance actually denied the claimant the full time
Congress intended he have to file, such that equity offers
only relief, not a windfall. See Doe v. Busby, 661 F.3d, 1001,
1012–13 (9th Cir. 2011); Roy v. Lampert, 465 F.3d 964, 973
(9th Cir. 2006); Spitsyn v. Moore, 345 F.3d 796, 802 (9th
Cir. 2003); Valverde v. Stinson, 224 F.3d 129, 134 (9th Cir.
2000); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
Under the majority’s approach, in contrast, the congressional
determination that 365 days is to be allowed is ignored, and
one judge—or three, or eleven—may decide for themselves
how much time a plaintiff or petitioner should have to put
together an initial pleading.

    The majority avoids grappling with the focus on
congressional intent underlying Socop-Gonzalez in part by
insisting that statutes of limitation are generally seen as
protecting the rights of defendants, not plaintiffs. Maj. Op.
at 16–17. The congressional determination whether to
impose a statutory limitations period surely does turn largely
on the perceived strength of defendants’ interests in repose.
But the question of how long a statute of limitations should




extraordinary circumstance existed on the day the limitations period
began running, so Smith would have 365 days, not more, from the end
of the extraordinary circumstance within which to file. And if, for
example, Smith’s extraordinary circumstance—say, a debilitating
illness—had not arisen until midway through the limitations period, he
still would have had, under the stop-clock approach, the number of days
left in the limitations period after his recovery, not more, within which
to file his petition.
50                        SMITH V. DAVIS

be necessarily includes the consideration of how much time
a plaintiff should have to file. 8

     In sum, the majority follows Holland, as it must, as to
whether equitable tolling is available. But it does so
begrudgingly, resisting Holland’s recognition that equitable
tolling is available under AEDPA because it is fully
consistent with, not at odds with, congressional intent.
Instead of using the congressional determination of the
applicable limitations period—a total of 365 days—the
majority proclaims that once equitable tolling is invoked,
“[t]he judicial Power” takes over, empowering judges to
second-guess Congress’s judgment of the time claimants
should be given to file. Maj. Op. at 18 (citing U.S. Const.
Art. III, § 2). I would reinstate Socop-Gonzalez’s preference
for respecting rather than ignoring Congress’s determination
of the number of days available to prepare and file a lawsuit
by stopping the clock for the period of the extraordinary
circumstance.

                  III. Supreme Court Precedent

    Aside from its expansive invocation of judicial power,
the majority’s argument for abandoning Socop-Gonzalez
rests on the assertion that the Supreme Court’s decisions in
     8
        The majority extensively quotes cases recognizing that the
legislative decision to impose a statute of limitations reflects a policy
judgment that defendants should be protected against claims of a certain
age. Maj. Op. at 16. That recognition is correct. But the majority does
not grapple with a basic point: if Congress were really exclusively
concerned with protecting defendants, every limitations period would be
extremely short. That is not the case. Congress determined, for example,
that habeas petitioners should have 365 days to prepare and file their
petitions, not ten or thirty or ninety or one hundred eighty days, all
periods that would be more defendant protective. That determination is
the legislative judgment that the majority refuses to respect.
                       SMITH V. DAVIS                       51

Pace and Holland overturned (sub silentio) the Supreme
Court cases Socop-Gonzalez relied upon as a basis for
adopting the stop-clock rule for equitable tolling. The
majority does not explicitly say that these cases overrule
Socop-Gonzalez, only that they “undermine” its “continued
validity.” Maj. Op. at 31 n.8. And the majority is not clear as
to whether the rule it extracts from these cases controls only
in “future AEDPA equitable tolling decisions,” or whether it
sweeps more broadly. Maj. Op. at 21 (emphasis added).
Either way, Pace and Holland are perfectly compatible with
Socop-Gonzalez, and with a key Supreme Court case post-
dating Pace and Holland—Artis v. District of Columbia,
138 S. Ct. 594 (2018)—which the majority seeks to sweep
aside.

    In establishing the stop-clock standard, Socop-Gonzalez
relied principally on Burnett v. New York Central Railroad
Company, 380 U.S. 424 (1965), and American Pipe &
Construction Company v. Utah, 414 U.S. 538 (1974). In
Burnett, the plaintiff timely filed a Federal Employers’
Liability Act claim in state court; the claim was dismissed
for improper venue. The plaintiff refiled in federal court
eight days later, but the three-year statute of limitations had
by then expired. 380 U.S. at 424–25. The Supreme Court
held that the limitations period “was tolled during the
pendency of the state action,” and that the plaintiff could
have taken the full time remaining under the tolled statute
when the state court dismissal became final—the limitations
period minus the time the state court suit was pending—to
refile. Id. at 434–35.

     American Pipe rested on a similar understanding of
tolling. 414 U.S. at 541, 561. The Court there held that the
institution of a class action suspends the running of the
limitations period for individual class members’ claims until
52                     SMITH V. DAVIS

the suit is stripped of its class-action character. Id. at 561.
Subtracting the tolled period from the time since the original
statute of limitations had been running, the Court concluded
that individual class members had eleven days remaining
within which to file at the time that the tolled period ended:
“The class suit brought by Utah was filed with 11 days yet
to run in the [limitations] period . . . , and the intervenors
thus had 11 days after the entry of the order denying them
participation in the suit as class members in which to move
for permission to intervene.” Id. Because the plaintiffs filed
within eight days of the class action order, their individual
claims were not time-barred—that is, they could have taken
the full eleven days they had to file, regardless of any judge’s
subjective views as to whether they really needed all eleven
days. See id.

    The majority recognizes that Burnett “would seem to
direct [the] stop-clock approach” of Socop-Gonzalez. Maj.
Op. at 25–26. (American Pipe is barely discussed. Maj. Op.
at 26.) But, the majority asserts, “subsequent
developments”—namely, Pace and Holland—have silently
abrogated Burnett. Id.

    Equitable tolling’s diligence requirement was not
elaborated upon in the Court’s opinion in Burnett; given the
speed with which the plaintiff refiled, diligence was not a
live issue. The fact that diligence was not at issue in Burnett
is no reason to assume that the diligence requirement is in
any tension with the stop-clock principle. In fact, Socop-
Gonzalez recognized and applied the Ninth Circuit’s
longstanding diligence requirement. “The question is
whether, despite due diligence, Socop was prevented during
this period [the period for which equitable tolling is sought]
by circumstances beyond his control and going beyond
‘excusable neglect,’ from discovering that his order of
                       SMITH V. DAVIS                       53

deportation had become effective—the vital information he
needed in order to determine that a motion to reopen was
required in order to preserve his status.” 272 F.3d at 1194;
see also id. at 1185 (“[a]ll one need show is that by the
exercise of reasonable diligence the proponent of tolling
could not have discovered essential information bearing on
the claim” (quoting In re Gardenshire, 220 B.R. 376, 382
(B.A.P. 9th Cir. 1998))); Miles, 187 F.3d at 1107; Valverde,
224 F.3d at 134. The question, then, is whether and how
Pace and Holland disturbed this settled understanding of the
dual roles of diligence and the stop-clock calculation—
especially when, as I shall show, a recent Supreme Court
case reiterated the stop-clock understanding of equitable
tolling.

    Pace arose in a distinctive context. Pace’s state
conviction became final four years before AEDPA’s one-
year statute of limitations was enacted, at a time when courts
applied a laches analysis to the timeliness of federal habeas
petitions because there was no limitations statute. 544 U.S.
at 410–11; see also Gratzer v. Mahoney, 397 F.3d 686, 690
(9th Cir. 2005) (“In pre-AEDPA practice, the equitable
doctrine of laches as applicable to habeas petitions was
codified in Rule 9(a) of the Rules Governing Section 2254
Cases.”). Indeed, before AEDPA, some states had no, or had
only recently passed, deadlines for filing state post-
conviction petitions. Grant v. Swarthout, 862 F.3d 914, 922
(9th Cir. 2017). Thus, petitioners sometimes waited years
before filing state post-conviction petitions, leaving federal
habeas courts to determine “whether petitioners had sat on
their claims for years before seeking relief and then asserted
that they were further entitled to equitable tolling.” Id. With
AEDPA’s passage, all prisoners to whom AEDPA applied
and who had not yet filed petitions were given 365 days
within which to file one. Pace missed that deadline and
54                      SMITH V. DAVIS

sought statutory and, as a backup, equitable tolling. 544 U.S.
at 410, 417–18.

     The Court rejected Pace’s principal, statutory tolling
argument. Id. at 417. In a brief discussion denying equitable
tolling, the Court stressed that Pace “waited years, without
any valid justification” to file his petition in Pennsylvania.
Id. at 419 (emphasis added). Had he “advanced his claims
within a reasonable time of their availability,” the Court
stated, Pace would not have “fac[ed] any time problem, state
or federal.” Id. It also noted (but seemingly placed no weight
upon) the fact that, after the rejection of his state court
petition became final, Pace waited five more months to file
in federal court. Id. The Court gave no indication that, if Pace
had filed five months earlier, it would have been any more
inclined to grant equitable relief, given the years-long prior
delay. Indeed, the passage of AEDPA gifted Pace a year he
would not otherwise have had within which to file.
Essentially, the Court held that laches already barred Pace’s
claim when AEDPA was enacted, so he was entitled to no
additional consideration after he was accorded an additional
year. Id. at 419 (citing McQuiddy v. Ware, 20 Wall. 14, 19
(1874) (“Equity always refuses to interfere where there has
been gross laches in the prosecution of rights) (emphasis
added)). In light of the transition worked by AEDPA—from
a regime in which courts assessed filing delays in the
absence of any statute of limitations to one in which they
defer to a congressional determination of the time it should
take to file—Pace’s distinct factual context is unlikely to
recur. See Grant, 862 F.3d at 922 (“Pace was a case in which
the Court denied equitable tolling based on the petitioner’s
failure to pursue state postcollateral relief for four years after
his direct appeal was concluded. . . . Pace was the product of
a problem common before the passage of AEDPA.”)
                          SMITH V. DAVIS                             55

     The Court also emphasized that Pace’s pre-AEDPA
multiple-year delay lacked “any valid justification,” because
the facts underlying the claims in his habeas petition were
available by 1991, long before his eventual filing. Id. at 418–
19. Pace was not denied equitable tolling on the basis of his
delay alone; it was the availability, even before the
limitations period began, of the facts he needed to file,
together with the five years that lapsed before AEDPA’s
passage, that precluded a finding that the asserted
extraordinary circumstance during the additional year the
new limitations period provided actually prevented timely
filing. Id.

    Given this history, Pace is best understood as an
application of pre-AEDPA principles in the context of a
prisoner whose conviction became final well before
AEDPA. Otherwise, Pace’s lack of diligence before
AEDPA’s statute of limitations began to run would have had
no bearing on whether he was entitled to equitable tolling
under the statute thereafter. Pace thus offers no support for
the rule that the majority ultimately endorses: that a post-
extraordinary-circumstance delay alone can be seized upon
to deny relief for an otherwise diligent petitioner. Although
Pace reaffirmed that equitable tolling requires diligence, it
does not suggest that the diligence requirement displaces,
rather than operates in conjunction with, the stop-clock
approach to determining the amount of time available to the
plaintiff or petitioner. 9


     9
       The majority asserts that if the stop-clock approach had been
applied to the facts of Pace, the outcome would have been different. Maj.
Op. at 21 n.4. Not so. Again, under the stop-clock approach, diligence is
a separate inquiry and can independently bar the application of equitable
tolling, obviating the need to apply the stop-clock calculation—which is
56                         SMITH V. DAVIS

     The majority next relies on Holland, which it asserts
“took an additional step that weighs against” retaining
Socop-Gonzalez by adding “an explicit causation
requirement to the rule for equitable tolling.” Maj. Op. at 23.
But this Court had already recognized a causation
requirement for equitable tolling before Socop-Gonzalez,
and it has focused its diligence analysis on precisely that
requirement. See Miles, 187 F.3d at 1107; Valverde,
224 F.3d at 134. Moreover, to the extent the Holland Court
modified Pace at all, it modified only the extraordinary-
circumstance element of equitable tolling—not the diligence
element—by adding four words (“and prevented timely
filing”) to the requirement that “some extraordinary
circumstance stood in [the petitioner’s] way.” 560 U.S.
at 649 (“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only
if he shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.”) (quoting
Pace, 544 U.S. at 418). 10 The case does nothing to heighten
the diligence requirement, nor does it invite judicial second-
guessing of congressional determinations of the time
ordinarily needed to file.



what happened in Pace. See pp. 52–53 (discussing the diligence prong
as applied in Socop-Gonzalez).
     10
        The majority makes much of the Pace and Holland Courts’
phrasing of the diligence requirement as requiring that the petitioner
demonstrate “that he ‘has been pursuing his rights diligently’—not that
he ‘pursued,’ ‘had pursued,’ or ‘has pursued’ his rights diligently.” Maj.
Op. at 20 n.3. But as the majority itself recognizes in a separate footnote,
the Supreme Court elsewhere has more recently phrased the diligence
requirement to require only that the petitioner “has pursued his rights
diligently.” Maj. Op. at 29 n.7 (quoting CTS Corp. v. Waldburger,
573 U.S. 1, 9 (2014)).
                       SMITH V. DAVIS                        57

    The majority also suggests that Holland further
undermined Socop-Gonzalez by remarking on a petitioner’s
diligence after the extraordinary circumstance had
dissipated. But as the majority acknowledges, this remark
had no effect on the outcome of the case. Maj. Op. at 24 n.5.
So, like Pace, Holland does not stand for the proposition that
a delay in filing after an extraordinary circumstance has
abated, standing alone, can justify denying a petitioner
equitable relief. Rather, Pace and Holland made explicit
what the Ninth Circuit had already recognized about
equitable tolling’s diligence requirement, see Miles,
187 F.3d at 1107; Valverde, 224 F.3d at 134; Spitsyn,
345 F.3d at 802; Roy, 465 F.3d at 973; Doe, 661 F.3d
at 1012–13, and did not discuss—much less disapprove—
the well-established stop-clock principle. Much more would
be needed to conclude—as does the majority—that Pace and
Holland silently abrogated Burnett and American Pipe.

    Were there any doubt that the stop-clock approach to
equitable tolling survived Pace and Holland, the Supreme
Court eliminated it in Artis v. District of Columbia, 138 S.
Ct. 594 (2018). Artis discussed at length the meaning of
“tolling” in the limitations period context generally and in
the equitable tolling context in particular, explaining that the
stop-clock approach applies in both contexts. Id. at 601–02.

    The equitable tolling discussion in Artis was an integral
part of a larger discussion of the legal meaning of “tolling”
in the context of statutory time prescriptions generally. The
Court in Artis adopted a stop-clock interpretation of the word
“tolled” within the meaning of 28 U.S.C. § 1367(d) on the
understanding that “‘tolled’ in the context of a time
prescription . . . means that the limitations is suspended
(stops running) . . . then starts running again when the tolling
period ends, picking up where it left off.” Id. at 601. Artis
58                     SMITH V. DAVIS

confirmed that understanding by quoting Black’s Law
Dictionary 1488 (6th ed. 1990) for the proposition that
“‘toll,’ when paired with the grammatical object ‘statute of
limitations,’ means “to suspend or stop temporarily,” 138 S.
Ct. at 601, and also by quoting American Pipe for the
proposition that “a ‘tolling’ prescription . . . ‘suspend[s] the
applicable statute of limitations,” id. at 602 (quoting
414 U.S. at 554). The Court then turned to its understanding
of equitable tolling as further indication of the stop clock
meaning of “tolling”:

        We have similarly comprehended what
        tolling means in decisions on equitable
        tolling. See, e.g., CTS Corp. v. Waldburger,
        573 U.S. —, —, 134 S.Ct. 2175, 2183, 189
        L.Ed.2d 62 (2014) (describing equitable
        tolling as “a doctrine that pauses the running
        of, or ‘tolls’ a statute of limitations” (some
        internal quotation marks omitted)); United
        States v. Ibarra, 502 U.S. 1, 4, n. 2, 112 S.Ct.
        4, 116 L.Ed.2d 1 (1991) (per curiam)
        (“Principles of equitable tolling usually
        dictate that when a time bar has been
        suspended and then begins to run again upon
        a later event, the time remaining on the clock
        is calculated by subtracting from the full
        limitations period whatever time ran before
        the clock was stopped.”).

Id. at 602.

     The majority emphasizes that Artis and some of the cases
upon which it relied did not directly involve equitable
tolling; instead, the issue in Artis was what a statute meant
by “toll.” Maj. Op. at 27–29. But it would have been
                       SMITH V. DAVIS                       59

puzzling for the Court to describe the stop-clock rule of
equitable tolling exactly as it was framed in Socop-Gonzalez
if Pace and Holland had genuinely wrought the revolution
in the jurisprudence of equitable tolling imagined by the
majority.

    Moreover, where a precedent “confronts an issue
germane to the eventual resolution of the case, and resolves
it after reasoned consideration in a published opinion, that
ruling becomes the law of the circuit, regardless of whether
doing so is necessary in some strict logical sense.” Miranda
B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003)
(quoting United States v. Johnson, 256 F.3d 895, 914 (9th
Cir. 2001)). And, in any event, “[w]e do not treat considered
dicta from the Supreme Court lightly.” McCalla v.
MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir.
2004) (quoting United States v. Montero-Camargo, 208 F.3d
1122, 1132 n.17 (9th Cir. 2000) (en banc)). Here, the
Supreme Court invoked its stop-clock understanding of
equitable tolling as an integral part of its reasoning for
adopting its stop-clock interpretation of the statute at issue.
Artis thus made clear that Pace and Holland did not silently
overrule Burnett and American Pipe and thereby undermine
Socop-Gonzalez.

            IV. Administrability and Uniformity

   The majority does not engage at all with the third
consideration underlying Socop-Gonzalez: that the approach
the majority today adopts is “needlessly difficult to
administer,”    and     promotes     “inconsistency”     and
“uncertainty.” 272 F.3d at 1195; see also Maj. Op. at 31 n.8.
But, if more were needed, that consideration remains a
powerful reason to retain Socop-Gonzalez’s stop-clock
approach to equitable tolling.
60                     SMITH V. DAVIS

     Given its “chancellor’s foot” approach to deciding the
total filing period available to a petitioner when the other
equitable tolling requisites are met, the Court’s opinion
today provides no guidance to district courts or three-judge
panels for determining, retrospectively, the filing period
required in the various circumstances in which equitable
tolling can be invoked. This case is one in which the
extraordinary circumstance impeded filing during the first
part of the statutory limitations period. But that is not always
the case. Extraordinary circumstances are often
extraordinary precisely because they arise at an unexpected
time and involve widely varying circumstances. By
committing this Circuit to the business of deciding how long
one should take to prepare and file a federal claim, the
majority requires judges to decide whether claimants should
receive more, less, or the same amount of time to file
depending on what the extraordinary circumstance is and
whether it arises sooner or later during the running of the
limitations period.

    To illustrate: Suppose that a six-month coma befalls one
petitioner exactly at the moment that an applicable one-year
limitations period would ordinarily begin to run. And
suppose that a second petitioner succumbs to an
indistinguishable six-month coma with exactly six months
remaining on the applicable limitations clock. Both
petitioners file exactly 366 days after the applicable
limitations period would ordinarily have begun—that is,
both petitioners took six conscious months plus an additional
conscious day to prepare their respective filings. Must the
second petitioner exhibit more, less, or the same level
diligence as the first to prove worthy of equitable tolling?

   Under the stop-clock rule, of course, equitable tolling
would provide the full period Congress determined should
                       SMITH V. DAVIS                        61

be available, 365 days, so each petitioner would receive six
months of tolling and both filings would be timely. But
without such a rule, courts are left free to decide, on a case-
specific basis, whether six months and a day was too long a
period within which to file for the first petitioner but not the
second (perhaps on the ground that, once the first petitioner
awoke, he had an uninterrupted preparation period, while the
second petitioner could not have foreseen the barrier to
filing), or vice versa (perhaps because the second petitioner
could have been working diligently all along and, if she did,
could have finished before disaster struck). Suppose, further,
that a third unfortunate petitioner survives a 365-day coma
which began on the day that his limitations period started.
Could six conscious months (plus a day) be deemed too long
a period within which to prepare and file a claim in his case,
even though Congress provided a 365-day limitations
period?

    Consider, too, the dilemmas the majority’s approach
creates for petitioners. The majority effectively requires
petitioners to be prepared, in advance of filing, to
demonstrate precisely how they used their time, even if they
do not yet know that an extraordinary circumstance that gets
in their way may arise. This new requirement is particularly
troubling given the majority’s assertion—unnecessary to
decide this case—that diligence before the extraordinary
circumstance arises must also be demonstrated. See, e.g.,
Maj. Op. at 30. Under the majority’s approach, a petitioner
who fears that an extraordinary circumstance might arise
would be well-advised to prepare a journal, demonstrating
just how diligently they have used each month, day, or hour
available, to prevent a judge from seizing upon delay that
seems to her excessive as an excuse to deny relief.
62                     SMITH V. DAVIS

    Then there is the problem of what the journal must show
to reflect diligence: If the petitioner attends classes provided
by the prison for three hours when he could be working on
his petition, is he insufficiently diligent? If a non-prisoner
plaintiff takes a week-long vacation with his family when he
could be working on his complaint, is he insufficiently
diligent? Should the petitioner’s reading level or minor
illnesses affect the determination of how long he should have
taken to file once the extraordinary circumstance abated?

    Any answers to these questions will be unpredictable and
come after the fact. As a result, a petitioner will have the
incentive “to rush to court without fully considering his or
her claim—a policy that serves none of the parties involved.”
Socop-Gonzalez, 272 F.3d at 1196. Socop-Gonzalez was
correct to regard the ease of administration of the stop-clock
rule as an additional reason for affirming it. I would do so
again today.

               V. Equitable Tolling as Applied

   The strength of Socop-Gonzalez’s administrability
consideration is well demonstrated by the majority’s
application of its approach to the facts of this case.

    It is undisputed that Smith’s lawyer wrongfully withheld
Smith’s appellate record, despite Smith’s diligent efforts in
seeking it, for 66 days. Smith filed his federal habeas petition
65 days after the statute of limitations would ordinarily have
expired. He requests equitable tolling for the 66 days for
which his record was wrongfully withheld. Applying the
stop-cock rule (and assuming, again, that the withholding of
the record was an extraordinary circumstance), Smith filed
his petition with a day to spare.
                       SMITH V. DAVIS                       63

    It is unclear on the present record how Smith used the
364 days it took him to prepare and file his petition.
Although his legal arguments on federal habeas are largely
the same as those asserted in his state court appellate briefs,
he deleted one claim. Why, and whether his decision to do
so depended on his review of the case files, the record does
not disclose. Also, Smith’s federal habeas petition contained
20 pages of factual background copied, with a number of
alterations, from a brief he submitted on direct appeal. The
record does not tell us whether the fact section he revised
was included in the records he received.

     This factual ambiguity illustrates why this Court has long
tethered equitable tolling’s diligence inquiry to its causation
requirement. Suppose, for example, that, after receiving the
records wrongfully withheld, Smith never opened the box
containing them. If that were so, it could not be said that the
66-day delay in receiving those records prevented his timely
filing, as he evidently did not need those records to prepare
his petition. To put it another way: for a petitioner who
would make no use of his record, the unavailability of that
record is not an extraordinary circumstance that prevents
timely filing.

    But suppose, instead, that Smith did review the
wrongfully withheld records to determine whether his
petition might be strengthened by them. That effort could
take considerable time. As the Seventh Circuit has
recognized in a similar context,

       [S]ometimes it takes a longer time to review
       the possibilities, discard the least promising,
       and write a concise pleading than it would to
       write a kitchen-sink petition. Perhaps a
       review of his entire record indicated to
       [petitioner] that he was best served by
64                     SMITH V. DAVIS

       repeating claims made by a member of the
       bar, instead of trying to craft legal arguments
       from scratch. He could not have known until
       he had the chance to review his file.

Socha v. Boughton, 763 F.3d 674, 688 (7th Cir. 2014).
Exactly how much time should be allowed for that reviewing
process and for the preparation of a habeas petition based on
it? Congress has been clear: a petitioner is permitted to take
up to 365 days to prepare and file a federal habeas petition.
Again, “[a] year is a year is a year.” Lott, 304 F.3d at 927
(McKeown, J., concurring).

     The difference between these two scenarios explains
why, even if Smith’s federal habeas petition had been a
verbatim copy of what he submitted for state habeas review,
the 364-day delay between his receipt of the records and his
filing, standing alone, cannot support the denial of relief. In
the first scenario, Smith’s lack of diligence once he received
his record would have illustrated that the absence of his
records did not affect his ability to meet the statutory
deadline, so his lack of diligence would preclude equitable
tolling. But in the second scenario, in which Smith did need
and use his case files, his overall diligence should be
measured against the 365-day period provided by Congress.
Under these circumstances, the causal link would be
unbroken: had Smith’s attorney not prevented him from
beginning his reviewing process sooner, he would have had
the full statutory period in which to prepare a timely filing.

   The majority does not and cannot say which of these two
scenarios more accurately reflects Smith’s drafting process.
Previously, when we have been unsure about the relationship
between the asserted extraordinary circumstance and the
impact of the plaintiff’s diligence, or lack thereof, on his
                            SMITH V. DAVIS                               65

ability to use the time ordinarily available under the
limitations deadline, we have remanded for the fact-finding
necessary to resolve that uncertainty. Spitsyn, 345 F.3d at
802. This the majority refuses to do. On the one hand, the
majority instructs courts to be “fact-specific”; on the other,
the majority’s reasoning provides no guidance as to which
sorts of facts—say, variations in petitioners’ reading levels,
in the scheduling demands of their wardens, or in the quality
of their prison libraries—might have made a difference for
Smith. Compare Maj. Op. at 11–15 with Maj. Op. at 33–36.
So, the majority’s ruling is really that 364 days is always too
long a period within which to prepare a federal habeas
petition, whatever the petitioner was doing for those days—
even though Congress provided a 365-day limitations
period. From whence that judicially decreed benchmark
came we are not told. 11

    The majority rejects this characterization of its holding,
insisting that it has “no trouble imagining” cases in which
taking 364 days to prepare and file a habeas petition after an
extraordinary circumstance abates does not disqualify a
petitioner from receiving equitable tolling. Maj. Op. 35. But
it makes no effort to distinguish its imaginings from the case
at hand, saying only that petitioners must work on their
petitions “with some regularity.” Maj. Op. at 35. We are left
to wonder what sort of regularity must be demonstrated—


    11
        This indifference to the factual record—or in this case, to the
silence of the record as to the pertinent considerations—creates, I note,
a split with the Sixth and Seventh Circuits, which have both recognized
that “the mere passage of time—even a lot of time—. . . does not
necessarily mean [a claimant] was not diligent.” Gordillo v. Holder,
640 F.3d 700, 705 (6th Cir. 2011); see also Pervaiz v. Gonzalez, 405
F.3d 488, 490 (7th Cir. 2005) (“[T]he test for equitable tolling . . . is not
the length of the delay.”).
66                     SMITH V. DAVIS

that is, what the journal Smith is retroactively expected to
have prepared must show. See p.62, supra.

                         Conclusion

    Under the new regime, plaintiffs and petitioners who file
their habeas petitions free from any extraordinary
impediments will enjoy the full 365 days that Congress
provided within which to complete and file their initial
pleadings. But if an extraordinary circumstance—say, grave
illness, see, e.g., Arbas v. Nicholson, 403 F.3d 1379, 1381
(Fed. Cir. 2005), serious attorney misconduct, Holland,
560 U.S. at 652, or misinformation from a court or
government office, Socop-Gonzalez, 272 F.3d at 1184–85—
precludes a potential litigant from drafting or filing his
lawsuit during part or all of the limitation period, the ground
shifts. Now, the litigant has only the number of days for
drafting and filing deemed adequate after the fact by the
judge or judges who happen to be assigned to his case. We
decided otherwise in Socop-Gonzalez, and Artis reaffirmed
the stop-clock approach to equitable tolling there adopted.
Neither the majority’s extravagant view of judicial
discretion in equity nor its misreading of Supreme Court
precedent can justify abandoning that approach.

    I therefore respectfully dissent. I would remand for the
district court to apply the correct, stop-clock standard, after
deciding (rather than assuming, as both the majority and I
have done) whether Smith did in fact face an extraordinary
circumstance and met the diligence standard as it relates to
that circumstance.
