264 F.3d 7 (1st Cir. 2001)
CHARLES C. DELANEY III, Petitioner, Appellant,v.JAMES MATESANZ ET AL., Respondents, Appellees.
No. 99-1972
United States Court of Appeals For the First Circuit
Heard Nov. 9, 2001Decided September 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge][Copyrighted Material Omitted]
Elizabeth L.  Prevett, Federal Defender Office, with whom Owen S. Walker, Federal Defender   and Charles C. Delaney III,  pro se ipso, were on brief, for appellant.
Catherine E. Sullivan, Assistant Attorney General,  Commonwealth of Massachusetts, with whom Thomas F. Reilly,  Attorney General, was on brief, for appellees.
Before  Selya, Circuit Judge, Coffin and Stahl, Senior Circuit Judges,
SELYA, Circuit Judge.


1
Petitioner-appellant Charles C.  Delaney III, a Massachusetts state prisoner, sought a writ of  habeas corpus in the United States District Court for the  District of Massachusetts, but voluntarily withdrew his  application when the Commonwealth pointed out that it contained  unexhausted claims.  After pursuing all available state  remedies, the petitioner returned to federal court.  At that  juncture, the court dismissed his new application as untimely  under the one-year limitation period enacted as part of the  Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L.  No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).


2
The petitioner appeals this order, asseverating that  the district court erred in refusing to toll the limitation  period during the pendency of his original federal habeas  petition; that absent such tolling the statutory limitation  violates the Suspension Clause; and that, in all events, the  district court abused its discretion by failing to resuscitate  his time-barred claim on equitable grounds.  Recent Supreme  Court precedent holding that the relevant statutory provision,  28 U.S.C. § 2244(d)(1), may not be tolled by the pendency of  federal, as opposed to state, post-conviction proceedings  defeats the first of these asseverations.  See Duncan v. Walker,  121 S. Ct. 2120, 2129 (2001).  The second fails on the law.  The  third fails on the facts:  even assuming, for argument's sake,  that equitable tolling is available in the precincts patrolled  by section 2244(d) -- a matter on which we take no view -- the  district court supportably determined that the petitioner had  not established a sufficiently compelling basis for remediation. Consequently, we uphold the district court's dismissal of the  petitioner's application for habeas relief.

I.  BACKGROUND

3
We retrace the relevant portions of the petitioner's  journey through the procedural labyrinth that typifies modern  habeas litigation.  The facts are essentially uncontested.


4
In 1989, a Massachusetts jury found the petitioner  guilty of murder in the second degree.  The trial judge  sentenced him to life imprisonment.  On direct review, his  conviction was sequentially affirmed by the Massachusetts  Appeals Court and the Supreme Judicial Court.  See Commonwealth v. Delaney, 616 N.E.2d 111 (Mass. App. Ct. 1993), aff'd, 639  N.E.2d 710 (Mass. 1994).  The conviction became final on  September 20, 1994.


5
On February 24, 1997, ten months after the AEDPA's  effective date, the petitioner for the first time asked the  federal district court for a writ of habeas corpus.  See 28  U.S.C. § 2254.  In this pro se petition (Petition No. 1), he  reasserted various claims that he had presented to the state  courts and added four new (unexhausted) claims.  The  Commonwealth promptly moved to dismiss this "mixed" petition. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding that a  federal habeas court ordinarily should not adjudicate a "mixed"  petition, i.e., one containing both exhausted and unexhausted  claims); Adelson v. DiPaola, 131 F.3d 259, 261-62 (1st Cir.  1997) (same).  The petitioner countered by moving to dismiss the  action without prejudice.  The district court granted the latter  motion on May 2, 1997.


6
On June 6, 1997, the petitioner returned to state court  and filed a motion for a new trial that raised two ineffective  assistance of counsel claims.  These claims were not the claims  previously asserted in Petition No. 1, but, rather, were newly  minted.  The superior court denied this motion a few weeks later  and, by March 27, 1998, the petitioner had exhausted all  available state appellate remedies.


7
On April 10, 1998, the petitioner refiled for federal  habeas relief, raising only the two ineffective assistance of  counsel claims.  Citing 28 U.S.C. § 2244(d)(1), the district  court dismissed this application (Petition No. 2) as untimely. When the petitioner moved for reconsideration, the court  withheld a ruling and asked us to consider whether Petition No.  2 was a "second or successive" habeas petition, and thus subject  to the gatekeeping requirement of 28 U.S.C. § 2244(b)(3).  See generally Pratt v. United States, 129 F.3d 54, 57-58 (1st Cir.  1997).  Following the reasoning explicated in Slack v. McDaniel,  529 U.S. 473, 487 (2000), we advised the lower court that  Petition No. 2 was not a "second or successive" petition and  that, therefore, the gatekeeping regime did not apply.


8
The district court proceeded to deny the petitioner's  motion for reconsideration on the merits.  The court then  granted a certificate of appealability.  See 28 U.S.C. §  2253(c).  We augmented the issues, appointed counsel for the  petitioner, consolidated the case for argument with a case  containing a similar limitation issue, and heard oral argument  on November 9, 2000.  Four days later, the Supreme Court granted  certiorari to review the decision of the United States Court of  Appeals for the Second Circuit in Walker v. Artuz, 208 F.3d 357  (2d Cir.), cert. granted sub nom. Duncan v. Walker, 121 S. Ct.  480 (2000).  Because Duncan squarely raised the question of  whether section 2244(d)(1) could be tolled by the pendency of  federal, as well as state, post-conviction proceedings, we  stayed our hand.


9
The Supreme Court decided Duncan on June 18, 2001.  By  order entered June 28, 2001, we vacated the stay previously  entered in this case and the companion case.  We resolved the  companion case in an opinion filed on August 20, 2001, see Neverson v. Bissonnette, 261 F.3d 120 (1st Cir. 2001) [No. 00-1044], and now decide the petitioner's appeal.

II.  ANALYSIS

10
Congress enacted the AEDPA on April 24, 1996, in part  to combat increasingly pervasive abuses of the federal courts'  habeas jurisdiction.  Felker v. Turpin, 518 U.S. 651, 664  (1996).  Pertinently, the AEDPA imposed a one-year limitation  period applicable to state prisoners' habeas applications.  See 28 U.S.C. § 2244(d)(1).  This period of limitation normally  begins to accrue on "the date on which the [state court]  judgment became final by the conclusion of direct review or the  expiration of the time for seeking such review."  Id. §  2244(d)(1)(A).


11
The courts have determined that this language  encompasses a one-year grace period within which state prisoners  may file federal habeas petitions to test the correctness of  convictions that became final before the AEDPA's effective date. See Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999) (per  curiam); see also Duncan, 121 S. Ct. at 2130 n.1 (Stevens, J.,  concurring) (collecting cases to like effect from other  circuits).  Accordingly, the petitioner had until April 24,  1997, to file an application for federal habeas relief.  He  docketed Petition No. 1 within that window of opportunity, but  he voluntarily withdrew that petition.  He did not propound  Petition No. 2 until April 10, 1998 (nearly a year after the  grace period had run its course).  Hence, that petition was  time-barred, as the district court ruled, absent some  sufficiently excusatory circumstance.


12
The petitioner's principal attempt to rescue his habeas  application implicates 28 U.S.C. § 2244(d)(2), which provides  that "[t]he time during which a properly filed application for  State post-conviction or other collateral review with respect to  the pertinent judgment or claim is pending shall not be counted  toward any period of limitation under [section 2244(d)]."  But  this provision is of no help to the petitioner:  although it  plainly tolls the limitation period from and after June 6, 1997  (the date upon which he moved for a new trial in state court),  the one-year period already had elapsed by that date.


13
In an attempt to overcome this obstacle, the petitioner  contends that the reference in section 2244(d)(2) to "other  collateral review" includes not only state collateral review  proceedings but also federal habeas proceedings.  If that were  so, the pendency of Petition No. 1 would have tolled the  limitation period from the date of filing (February 24, 1997) to  the date of dismissal (May 2, 1997), and this hiatus, coupled  with the tolling that accompanied the petitioner's pursuit of  post-conviction remedies in the state courts during the period  from June 6, 1997, through March 27, 1998, would have rendered  Petition No. 2 timely (i.e., filed within one year of April 24,  1996, after subtracting "tolled" periods).  As a first fallback  position, the petitioner maintains that the statutory limitation  period, if construed otherwise, violates the Constitution.  As  a second fallback, he asserts that even if his reading of  section 2244(d)(2) proves overly sanguine and the provision  nonetheless is constitutional, the district judge erred in  refusing to apply principles of equitable tolling to assure his  day in court.  We address each of these arguments.


14
A.  Statutory Tolling.


15
The question of what Congress meant when it wrote that  the AEDPA's limitation period, 28 U.S.C. § 2244(d)(1), would be  tolled while a state prisoner pursued "State post-conviction or  other collateral review," id. § 2244(d)(2), is no longer open. The Duncan Court made it crystal clear that the adjective  "State" qualifies both of the phrases that follow.  121 S. Ct.  at 2128.  Accordingly, section 2244(d)(2), properly construed,  "toll[s] the limitation period for the pursuit of state remedies  [but] not during the pendency of applications for federal  review."  Id.  It follows inexorably that "an application for  federal habeas corpus review is not an 'application for State  post-conviction or other collateral review' within the meaning  of 28 U.S.C. § 2244(d)(2)."  Id. at 2129; accord Neverson, 261  F.3d at 125 .  This means, of course, that the  pendency of Petition No. 1 did not toll the limitation period  (and, therefore, did not render Petition No. 2 timeous).


16
B.  The Suspension Clause.


17
The petitioner rejoins that so restrictive an  interpretation of the statutory tolling provision renders the  AEDPA's limitation period constitutionally suspect under the  Suspension Clause.  Duncan does not foreclose this argument --  the Suspension Clause was not raised in that case -- so we  address it here.


18
The Suspension Clause states that "[t]he Privilege of  the Writ of Habeas Corpus shall not be suspended, unless when in  Cases of Rebellion or Invasion the public Safety may require  it."  U.S. Const. art. 1 § 9, cl. 2.  In Felker, 518 U.S. at  663, the Court noted that the purpose of the writ has changed  over time.  In 1789, the writ was designed primarily to protect  against the power of the Executive to hold someone captive  without trial, INS v. St. Cyr, 121 S. Ct. 2271, 2280 (2001), and  it was not until 1867 that Congress extended the writ to include  state prisoners who challenged their convictions on  constitutional or statutory grounds.  See Felker, 518 U.S. at  559-60.  Because the current writ is so different from the one  known to the Framers, some jurists have questioned whether -- and  to what extent -- the Suspension Clause applies to the modern  habeas remedy.  E.g., Freeman v. Page, 208 F.3d 572, 576 (7th  Cir.), cert. denied, 121 S. Ct. 345 (2000).  The Supreme Court  has yet to answer that question,1 and we need not do so today.


19
Even assuming, for purposes of our inquiry, that the  Suspension Clause applies, reasonable limits on the use and  application of the habeas remedy do not work an unconstitutional  suspension of the writ.  See United States v. Barrett, 178 F.3d  34, 53 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000).  The  Court has held, for example, that the AEDPA's stringent  restrictions on second habeas petitions do not run afoul of the  Suspension Clause.  See Felker, 518 U.S. at 664.  We believe  that the same reasoning applies to the AEDPA's time-limiting  provisions.  We therefore join several of our sister circuits in  holding that the AEDPA's one-year limitation period does not, as  a general matter, offend the Suspension Clause.  See Wyzykowski v. Dep't of Corrs., 226 F.3d 1213, 1217-18 (11th Cir. 2000); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d  Cir.), cert. denied, 121 S. Ct. 175 (2000); Turner v. Johnson,  177 F.3d 390, 392-93 (5th Cir.), cert. denied, 528 U.S. 1007  (1999); Miller v. Marr, 141 F.3d 976, 977-78 (10th Cir. 1998).2


20
The question reduces, then, to whether the tolling  provision, 28 U.S.C. § 2244(d)(2), as interpreted by the Duncan Court, renders the AEDPA's limitation period vulnerable to the  petitioner's attack.  We think not.  The AEDPA's one-year  statute of limitation is part of "a complex and evolving body of  equitable principles informed and controlled by historical  usage, statutory developments, and judicial decisions."  Felker,  518 U.S. at 664 (quoting McCleskey v. Zant, 499 U.S. 467, 489  (1991)).  Rather than rendering the limitation period more  onerous, the tolling provision relaxes its rigors.  That the  provision is not as generous as the petitioner might like does  not undermine the reasonableness of the framework that Congress  chose to erect.  It follows that the tolling provision falls  well within the heartland of the evolutionary process described  by the Felker Court.


21
To sum up, the one-year limitation period of section  2244(d)(1), as embellished by the tolling provision of section  2244(d)(2), does not suspend the writ because, when read in  tandem, these provisions neither gut the writ of habeas corpus  nor render it impuissant to test the legality of a prisoner's  detention.  See Swain v. Pressley, 430 U.S. 372, 381 (1977)  (describing the contours of the Suspension Clause).  Tolling the  limitation period during the pendency of state post-conviction  proceedings leaves habeas petitioners with a reasonable  opportunity to have their claims heard on the merits.  See Lucidore, 209 F.3d at 113.  From the standpoint of the  Suspension Clause, no more is exigible.3


22
We add a postscript.  The Suspension Clause applies (if  at all) only when Congress totally bars an individual or a group  from access to habeas relief.  See Barrett, 178 F.3d at 53. Here, the petitioner had ample opportunity, both before and  after Congress passed the AEDPA, to exhaust state court remedies  and seek federal habeas review.  That he had those opportunities  and did not seasonably avail himself of them is, in itself,  enough to doom his constitutional challenge.  See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam) (holding  that the Suspension Clause was not violated when nothing  prevented the prisoner from filing his application before the  statute of limitation expired).


23
C.  Equitable Tolling.


24
In the district court, the petitioner argued, in the  alternative, that the court should deem the limitation period  tolled as a matter of equity.  The court entertained this  argument but rejected it on the merits.  The petitioner renews  the argument on appeal, positing that the district court erred  in refusing to rejuvenate his time-barred habeas application.


25
We review the district court's ruling for abuse of  discretion.  See United States v. Patterson, 211 F.3d 927, 931  (5th Cir. 2000); see also Borden v. Paul Revere Life Ins. Co.,  935 F.2d 370, 377 (1st Cir. 1991) ("[F]ashioning or withholding  equitable relief . . . rests uniquely within the discretion of  the trial court.").  This is a highly deferential standard, but  not an unbounded one.  See United States v. Roberts, 978 F.2d  17, 20 (1st Cir. 1992); Indep. Oil & Chem. Workers, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).


26
The concurring opinion in Duncan furnishes at least  some support for the view that, in an appropriate case,  equitable tolling may be available to soften the rigors of  section 2244(d)(1).  There, Justice Stevens, writing for himself  and Justice Souter, took the position that "neither the Court's  narrow holding [in Duncan], nor anything in the text or  legislative history of AEDPA, precludes a federal court from  deeming the limitations period tolled for such a petition as a  matter of equity."  Duncan, 121 S. Ct. at 2130 (Stevens, J.,  concurring).  This is interesting food for thought,4 but we need  not resolve today whether courts ever can apply equitable  tolling to ameliorate the AEDPA's one-year statute of  limitations.  In this case, the district court squarely  confronted the petitioner's equitable tolling claim and rejected  it on the facts.  Assuming, arguendo, the availability of  equitable tolling, the record makes manifest that the district  court acted within its proper province in withholding such  relief.


27
The party who seeks to invoke equitable tolling bears  the burden of establishing the basis for it.  Carter v. W.  Publ'g Co., 225 F.3d 1258, 1265 (11th Cir. 2000); I.V. Servs. of  Am., Inc. v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 54 (1st Cir.  1999).  In the AEDPA environment, courts have indicated that  equitable tolling, if available at all, is the exception rather  than the rule; resort to its prophylaxis is deemed justified  only in extraordinary circumstances.  E.g., United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.), cert. denied, 121 S.  Ct. 188 (2000); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.  1998), cert. denied, 526 U.S. 1074 (1999); Sandvik v. United  States, 177 F.3d 1269, 1271-72 (11th Cir. 1999).  The district  court found that the petitioner did not meet this benchmark, and  the argument to the contrary is not compelling.


28
The petitioner maintains that he is entitled to  equitable tolling because he diligently pursued judicial  remedies.  Even if the district court were obligated to apply  equitable tolling for an attentive applicant, the facts of  record here do not corroborate the petitioner's contention that  he was diligent.  He waited over two years after his conviction  became final (and ten months after the AEDPA's effective date)  to promulgate his first federal habeas petition.  He did nothing  during that protracted period to exhaust state remedies as to  the ineffective assistance of counsel claims that he now seeks  to advance.  Indeed, his first habeas application ignored those  claims and, at any rate, he withdrew that application in the  face of the AEDPA's known one-year limitation period, without  asking the district court to retain jurisdiction.5  He did not  file a proper habeas application until April of 1998 -- more than  eleven months after the AEDPA's limitation period had expired.


29
The district court was well aware of these facts and  took them into account in addressing the petitioner's plea for  equitable tolling.  Judge Keeton noted that while the petitioner  had pursued a variety of claims over a nine-year period, he had  not done so in an especially assiduous fashion.  See Delaney v. Matesanz, No. 98-10635-REK, slip op. at 7 (D. Mass. Nov. 6,  1998) (unpublished).  In addition, Judge Keeton found no  extraordinary circumstances that might suffice to excuse the  petitioner's failure to comply with the temporal deadline:  no  one lulled the petitioner into a false belief that he had more  than the allotted time to file, or otherwise misled him.  Id.


30
We need not rehearse all the details of the decision  below.  What matters is that the judge plainly considered all  the pertinent factors and no impertinent ones.  Given his  thorough explanation, we cannot say that his refusal to apply  principles of equitable tolling to salvage the petitioner's  time-barred habeas application constituted a plain mistake in  judgment.  After all, "the principles of equitable tolling . .  . do not extend to what is at best a garden variety claim of  excusable neglect."  Irwin v. Dep't of Veterans Affairs, 498  U.S. 89, 96 (1990).


31
The petitioner makes a final plea.  He says that  because he was a pro se prisoner, ignorant of the applicable  law, the lower court should have tolled the limitation period. We reject this plea.  In the context of habeas claims, courts  have been loath to excuse late filings simply because a pro se  prisoner misreads the law.  E.g., Marsh v. Soares, 223 F.3d  1217, 1220 (10th Cir. 2000), cert. denied, 121 S. Ct. 1195  (2001) (refusing to toll the AEDPA's limitation period because  a pro se petitioner did not understand the dictates of the  statutory scheme); Jones v. Morton, 195 F.3d 153, 159-60 (3d  Cir. 1999) (explaining that misunderstanding the effect of  filing a prior unexhausted federal habeas petition does not  warrant equitable tolling); Fisher v. Johnson, 174 F.3d 710, 714  (5th Cir. 1999), cert. denied, 121 S. Ct. 1124 (2001)  ("[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.").


32
In this instance, the district court had good reason  to follow this line of authority.  The court specifically  remarked that the petitioner was no ordinary pro se litigant;  his submissions, in the court's view, displayed a clear  understanding of the AEDPA amendments.  See Delaney, supra, slip  op. at 7.  We are reluctant to second-guess this fact-sensitive  judgment.  While judges are generally lenient with pro se  litigants, the Constitution does not require courts to undertake  heroic measures to save pro se litigants from the readily  foreseeable consequences of their own inaction.


33
Even where available, equitable tolling is normally  appropriate only when circumstances beyond a litigant's control  have prevented him from filing on time.  Bonilla v. Muebles J.J.  Alvarez, Inc., 194 F.3d 275, 278-79 (1st Cir. 1999) (addressing  equitable tolling in the context of the ADA).  In the usual  case, a court may deny a request for equitable tolling unless  the proponent shows that he was actively misled or prevented "in  some extraordinary way from asserting his rights."  Patterson,  211 F.3d at 930-31 (citation omitted).  In short, equitable  tolling is strong medicine, not profligately to be dispensed.


34
In this case, the Commonwealth did not mislead the  petitioner, nor has he alleged any exceptional circumstances  that prevented him from filing his habeas petition on time. Accordingly, the lower court acted within its discretion in  declining to excuse the petitioner's non-compliance with the  legislatively-mandated limitation period.

III.  CONCLUSION

35
We need go no further.  The Supreme Court's  interpretation of section 2244(d)(2) permits courts to toll the  limitation period only while state collateral review is pending. See Duncan, 121 S. Ct. at 2128-29; Neverson, 261 F.3d at 125 .  The instant petition therefore fails because  the petitioner did not bring it within this constitutionally  permissible interval.  Moreover, no extraordinary circumstances  prevented him from protecting his own interests, so the district  court did not abuse its discretion in declining to apply  equitable tolling to resuscitate his time-barred habeas case.


36
Affirmed.



Notes:


1
 While the historical puzzle remains unsolved, the Justices  apparently harbor divergent views about the sweep of the  Suspension Clause.  In a set of opinions analyzing the  interaction between the Illegal Immigration Reform and Immigrant  Responsibility Act, Pub. L. No. 104-108, 110 Stat. 3009-546, and  the AEDPA, Justice Stevens, writing for a five-member majority,  interpreted these statutes as allowing habeas relief for certain  aliens, predicting that any other reading would raise serious  constitutional questions under the Suspension Clause.  St. Cyr,  121 S. Ct. at 2282; Calcano-Martinez v. INS, 121 S. Ct. 2268,  2270 (2001) (adopting St. Cyr's Suspension Clause analysis). Justice Scalia, in dissents joined by Chief Justice Rehnquist  and Justice Thomas, posited that the Suspension Clause does not  affirmatively guarantee a right to habeas corpus, but simply  prohibits temporary withholding of the writ.  See St. Cyr, 121  S. Ct. at 2299 (Scalia, J., dissenting); Calcano-Martinez, 121  S. Ct. at 2271 (Scalia, J., dissenting).  Justice O'Connor filed  separate dissents in both cases, taking no position on the  specific meaning and application of the Suspension Clause.  See St. Cyr, 121 S. Ct. at 2293 (O'Connor, J., dissenting); Calcano-Martinez, 121 S. Ct. at 2270 (O'Connor, J., dissenting).


2
 Some courts have suggested that the AEDPA's built-in  limitation period might violate the Suspension Clause if a  prisoner-petitioner could make a showing of actual innocence. See, e.g., Wyzykowski, 226 F.3d at 1218-19; Lucidore, 209 F.3d  at 113-14.  Because Delaney makes no such proffer, we need not  reach this question.


3
 Relatedly, the petitioner asserts that the limitation  period, as embroidered by the tolling provision, has an  impermissibly retroactive effect.  This argument is hopeless, see Rogers v. United States, 180 F.3d 349, 353-55 (1st Cir.  1999), cert. denied, 515 U.S. 1126 (2000) (rejecting similar  retroactivity argument); Libby v. Magnusson, 177 F.3d 43, 46  (1st Cir. 1999) (same); cf. Pratt, 129 F.3d at 58 (discussing  retroactivity in the context of second or successive habeas  petitions), and we reject it out of hand.


4
 Post-Duncan, at least one court of appeals has held that  equitable tolling is available to habeas petitioners in respect  to section 2244(d)(1)'s one-year limitation period.  See Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001).


5
 The petitioner perhaps could have improved his position by  requesting that the district court stay, rather than dismiss,  Petition No. 1.  See Duncan, 121 S. Ct. at 2130 (Stevens, J.,  concurring) (observing that "there is no reason why a district  court should not retain jurisdiction over a meritorious claim  and stay further proceedings pending the complete exhaustion of  state remedies"); Neverson, 261 F.3d at 126 n.3 (describing such an approach as "preferable" in cases  involving "mixed" petitions); see also Zarvela v. Artuz, 254  F.3d 374, 380 (2d Cir. 2001); Freeman, 208 F.3d at 577; Calderon v. United States Dist. Ct., 134 F.3d 981, 986-87 (9th Cir.  1998).  We especially commend such an approach to the district  courts in instances in which the original habeas petition,  though unexhausted, is timely filed, but there is a realistic  danger that a second petition, filed after exhaustion has  occurred, will be untimely.


