4444444444444444444444444444444444444444444444447 Kenneth Bernard Rouse v. R. C. LEE, Warden, Central Prison, Raleigh, North Carolina

Rehearing en banc granted by order filed
2/13/03. Opinion filed 1/7/03 is vacated.

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
KENNETH BERNARD ROUSE,
Petitioner-Appellant,
v. No. 01-12
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-00-137-1)
Argued: September 24, 2002
Decided: January 7, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
____________________________________________________________
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge King joined. Judge Williams wrote a dissent-
ing opinion.
____________________________________________________________
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, MAHER,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appel-
lant. Clarence Joe DelForge, III, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Robert M. Hurley, CENTER FOR

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DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant. Roy Cooper, Attorney General, William N. Farrell, Jr.,
Senior Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
____________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
In this federal habeas petition, his first, Kenneth Bernard Rouse
seeks relief on the ground, inter alia, that a juror who voted to convict
and execute him deliberately concealed bias in order to win a seat on
the jury. The district court held that Rouse's former lawyers filed this
petition one day late and that Rouse presented no grounds for equita-
bly tolling the applicable statute of limitations. Accordingly, the court
dismissed Rouse's petition as untimely, denying him all federal
habeas relief. Rouse appeals, challenging the determination that his
petition was not timely filed and the refusal of equitable tolling.
Although we agree that Rouse filed his petition one day late, given
the exceptional circumstances in this case, we believe that the district
court erred in refusing to toll the limitations period. Accordingly, for
the reasons set forth within, we grant a certificate of appealability,
vacate the judgment of the district court, and remand for further pro-
ceedings consistent with this opinion.
I.
At the outset, we emphasize the extremely early stage and sparse
record of this case as it reaches us. The district court denied Rouse's
petition as untimely on the basis of a record that did not even include
the decision of the state post-conviction court, the dispositive decision
for federal habeas review. We do not suggest any irregularity in this
omission. The habeas rules only require the government to submit the
state post-conviction court's decision at a later stage of the litigation.
See Fed. R. Governing Section 2254 Cases 2, 5. Nevertheless, the
record presented to the district court was sparse indeed.
That limited record reveals that a North Carolina jury convicted
Rouse, an African-American, of the brutal first degree murder, armed
2

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robbery, and attempted rape of a sixty-three-year-old white woman,
Hazel Colleen Broadway. The same all-white jury then sentenced
Rouse to death. On direct appeal, the Supreme Court of North Caro-
lina affirmed Rouse's conviction and sentence. See State v. Rouse,
451 S.E.2d 543 (N.C. 1994).
The record further reveals that, at some time after sentencing,
Rouse discovered new evidence that the mother of one member of the
jury that decided his fate had been sexually assaulted and murdered,
also in connection with a robbery, by a man who was later executed
for her murder.1 When all prospective jurors were asked for such
information at voir dire, the victim's son had remained silent.
After serving on Rouse's jury, this juror allegedly stated that he
had intentionally concealed his mother's tragic death and carefully
crafted his other responses to voir dire questions, because he wanted
to be on the jury that judged Rouse. Moreover, this juror assertedly
expressed intense racial prejudice against African-Americans, calling
them "niggers" and opining that African-Americans care less about
life than white people do, and that African-American men rape white
women in order to brag to their friends. Because the juror did not
reveal his own family's tragedy or his apparent deep-seated racial
prejudice, Rouse had no opportunity to object to the juror or challenge
his ability to judge and sentence Rouse impartially.
Rouse collaterally attacked the state court judgment, citing this
juror bias, inter alia, by timely filing a motion for appropriate relief
in state court. Without a hearing, the state court denied post-
conviction relief, but the Supreme Court of North Carolina granted
certiorari and remanded the case for reconsideration. See State v.
Rouse, 510 S.E.2d 669 (N.C. 1998). The state post-conviction court
again denied relief without holding a hearing, and the Supreme Court
of North Carolina denied Rouse's second petition for certiorari on
February 5, 1999.2 Rouse did not seek rehearing of this second denial
in the state supreme court.
____________________________________________________________
1 In support of his contentions as to juror bias, Rouse submitted with
his habeas petition an affidavit and a reported state case that partially
corroborates a number of the details in the affidavit. See Ezzell v. State,
88 So.2d 280 (Fla. 1956) (en banc).
2 Although the date of the published opinion is February 4, 1999, see
State v. Rouse, 531 S.E.2d 830 (N.C. 1999), the record reflects and the
State concedes that the order was actually entered on February 5, 1999.
3

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On February 8, 2000, Rouse filed a petition for a writ of habeas
corpus in the district court, pursuing a number of claims. In particular,
he contended that the juror's racial bias and personal prejudice based
on his family history had denied Rouse his right to a fair and impartial
jury under the Sixth Amendment.
The State moved to dismiss the petition as untimely, under the one-
year statutory deadline set forth in the Antiterrorism and Effective
Death Penalty Act (AEDPA). See 28 U.S.C.A. § 2244(d) (West Supp.
2002). Reviewing the motion, a magistrate judge noted that because
AEDPA's deadline fell on Saturday, February 5, 2000, see id.
§ 2244(d), Federal Rule of Civil Procedure 6(a) extended the deadline
to the next working day, Monday, February 7, 2000. See Hernandez
v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000). The magistrate judge
therefore concluded that the petition filed on Tuesday, February 8 was
late — but only one day late. The magistrate judge nevertheless
rejected Rouse's equitable tolling arguments, and recommended that
the district court grant the State's motion to dismiss. The district court
accepted the recommendation, dismissed the petition, and denied a
certificate of appealability.
II.
The Supreme Court has directed that when, as here, a district court
"denies a habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA [certificate of
appealability] should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct
in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Thus, "[d]etermining whether a COA should issue where the
petition was dismissed on procedural grounds has two components,
one directed at the underlying constitutional claims and one directed
at the district court's procedural holding;" each is part of a "threshold
inquiry." Id. at 484-85.
Rouse, like the petitioner in Slack, "did not attempt to make a sub-
stantial showing of the denial of a constitutional right, instead arguing
only that the District Court's procedural rulings were wrong." Id. at
4

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485. In Slack, moreover, because the constitutional claim "was neither
briefed nor presented below," the Supreme Court confined its inquiry
to the "second component" of the COA analysis, i.e. "whether jurists
of reason could conclude that the District Court's dismissal on proce-
dural grounds was debatable or incorrect." Id. Given the responsibili-
ties that immediate appellate courts shoulder under the COA
framework, however, it seems prudent to follow the approach of our
sister circuits and take a "quick look" at Rouse's constitutional claims
to determine if any of these claims "facially allege the `denial of a
constitutional right'." Jefferson v. Welborn, 222 F.3d 286, 289 (7th
Cir. 2000); see also Mateo v. United States, 310 F.3d 39, 41 (1st Cir.
2002); Valerio v. Crawford, 306 F.3d 742, 767 (9th Cir. 2002) (en
banc). If we could conclude that all of his underlying constitutional
claims were "utterly without merit, we could affirm the dismissal on
that alternative ground." Jefferson, 222 F.3d at 289. Thus, the "quick
look" approach "reflects the same impulse as Slack to protect nascent
constitutional claims" yet quickly dismiss all habeas petitions that
clearly do not meet the COA standard. Mateo, 310 F.3d at 41.
Applying a "quick look" to the limited record before us reveals that
at least one of Rouse's claims — the allegations of juror bias —
facially alleges the denial of a constitutional right. For this reason, at
the very least, "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,"
Slack, 529 U.S. at 484, and so we cannot deny a COA on the ground
that Rouse has failed to state a valid constitutional claim. Accord-
ingly, we turn our attention to the second threshold inquiry: whether
the district court "was correct in its procedural ruling." Id.
Rouse contends that both the district court's holding that his habeas
petition was not timely and the court's refusal to toll the statute of
limitations were incorrect. We consider each of these contentions in
turn.
III.
According to Rouse, the district court committed two separate legal
errors in ruling that he filed his petition late.
5

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A.
Initially, Rouse maintains that, although the Supreme Court of
North Carolina denied certiorari on February 5, 1999, his state post-
conviction review remained "pending" under the AEDPA past that
date, delaying the start of the one-year period in which he could have
filed a timely petition. See 28 U.S.C.A. § 2244(d)(2); Hernandez, 225
F.3d at 439. He provides two theories to support this view.
Rouse first contends that his motion for appropriate relief remained
pending for twenty days after certiorari was denied, until February 25,
1999, because North Carolina procedural rules state that an appellate
mandate should issue twenty days after an opinion. North Carolina
Rule of Appellate Procedure 32(b) provides that"[u]nless a court
orders otherwise, its clerk shall enter judgment and issue the mandate
of the court 20 days after the written opinion of the court has been
filed with the clerk." N.C. R. App. P. 32(b). Rouse claims that the
mandate did not issue on the Supreme Court's denial of certiorari in
his case until February 25 — but he has submitted no evidence that
any mandate ever issued in his case. In fact, as the clerk of the
Supreme Court of North Carolina explained in an affidavit, the gen-
eral practice of that court is that Rule 32(b) mandates do not issue
after summary denials of certiorari, such as the order in which the
court denied certiorari in Rouse's case. Cf. Felton v. Barnett, 912 F.2d
92, 95 (4th Cir. 1990) (concluding that a "denial of certiorari [from
the Supreme Court of North Carolina] is not to be given the effect of
a judgment on the merits" (internal quotation marks and citation omit-
ted)). We agree with Rouse that the inapplicability of Rule 32(b) is
less than clear, and that he could hardly be expected to know the prac-
tice of the clerk's office. In the absence of evidence that a mandate
issued in Rouse's case, however, and given the uncontroverted testi-
mony that the court generally does not issue a Rule 32(b) mandate
after denying certiorari, Rouse has not shown that Rule 32(b)
extended the period in which his post-conviction motion was "pend-
ing" in state court.
Rouse also argues that his post-conviction review remained pend-
ing during the period in which he could have sought rehearing from
the Supreme Court of North Carolina. North Carolina law does not
support this claim. Petitions for rehearing were not (and are not)
6

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available in criminal matters, see N.C. R. App. P. 31(g), and a North
Carolina statute declares that a motion for appropriate relief is part of
the original action. See N.C. Gen. Stat. § 15A-1411(b) (2001). In
Rouse's case, the original action was his criminal trial, and so there
was no period in which he could have sought rehearing. Rouse points
out that the Supreme Court of North Carolina "has used its discretion-
ary authority to reconsider denials of petitions . . . in capital cases."
Reply Brief at 10. In his case, however, he did not seek such review,
and the Supreme Court of North Carolina did not choose to reconsider
its own denial. Rule 31, like Rule 32(b), thus does not extend the pen-
dency of Rouse's motion for state post-conviction review.
B.
Rouse bases his second timeliness argument on the "mailbox rule"
contained in Federal Rule of Civil Procedure 6(e). He argues that this
rule extended by three days the deadline for filing his habeas petition.
Rule 6(e) adds three days to a prescribed period"[w]henever a
party has the right or is required to do some act or take some proceed-
ings within a prescribed period after the service of a notice or other
paper upon the party and the notice or paper is served upon the party"
by mail or other means allowed under the rule. Fed. R. Civ. P. 6(e)
(2002). But the AEDPA's limitations period begins to run when a
state court denies a petition for certiorari, not when a petitioner
receives notice of the denial. See Geraci v. Senkowski, 211 F.3d 6, 9
(2d Cir. 2000); see also Spencer v. Sutton, 239 F.3d 626, 627-29 (4th
Cir. 2001). (Again, we recognize the facial plausibility of Rouse's
theory, as the opinions we cite on this point did not issue until after
Rouse had filed his petition — but that does not limit their applicabil-
ity to his case.) Moreover, although total lack of notice of a state
court's denial of relief may assist a habeas petitioner under some cir-
cumstances, see Knight v. Schofield, 292 F.3d 709, 711 (11th Cir.
2002); Hollins v. Dep't of Corrs., 191 F.3d 1324, 1326-28 (11th Cir.
1999), Rouse had actual notice of the state court's denial in the early
days of the one-year period in which he could have timely filed his
petition.
We thus conclude that the district court correctly held that Rouse's
petition was filed one day late. See 28 U.S.C.A. § 2244(d) (imposing
7

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a one-year statute of limitations); Fed. R. Civ. P. 6(a) (extending a
deadline that falls on a non-working day to the next working day);
Hernandez, 225 F.3d at 437 (noting that "for prisoners whose convic-
tions became final prior to AEDPA's enactment, the limitations
period began to run with AEDPA's effective date"); id. at 439 (apply-
ing Federal Rule of Civil Procedure 6(a) to habeas petitions). Rouse's
counsel apparently relied on two plausible, but ultimately untenable,
legal theories to commit an error with devastating consequences.
IV.
Alternatively, Rouse maintains that, in light of his former counsel's
incompetence, the lack of clarity as to when the limitations period
began, the brevity of the delay in filing the petition, the lack of preju-
dice to the State, the compelling nature of his juror bias claim, and
the death sentence he faces, the district court incorrectly refused to
toll the statute of limitations by one day. "We review de novo the dis-
trict court's decision not to apply the doctrine of equitable tolling
inasmuch as the [relevant] facts in this case are undisputed and the
district court determined as a matter of law that there were no grounds
that would justify equitable tolling in [this] case." Dunlap v. United
States, 250 F.3d 1001, 1007 (6th Cir. 2001) (citation omitted); see,
e.g., Spencer, 239 F.3d at 629-31 (applying de novo review to a legal
issue in equitable tolling analysis and holding that "the district court
erred [rather than abused its discretion] in not tolling the statute of
limitations for the entire period from Spencer's initial filing of his
second MAR on April 23, 1997, until its final disposition on January
13, 1999"); Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir.
2000) (applying de novo review in equitable tolling analysis).3
"Equitable tolling is a background rule that informs . . . construc-
tion of federal statutes of limitations. . . ." Raygor v. Regents of Univ.
____________________________________________________________
3 The dissent notes that in Spencer and Harris, we did not "explicitly
articulate or discuss the proper standard of review" in equitable tolling
cases. Post at n.4. That is true. However, any fair reading of Spencer and
Harris leads to the inescapable conclusion that in both of those habeas
cases we applied de novo review in holding that § 2244(d) should not be
equitably tolled. To apply a different standard here would, therefore, be
clearly contrary to circuit precedent.
8

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of Minn., 534 U.S. 533, 122 S. Ct. 999, 1010 n.5 (2002) (Stevens, J.,
dissenting). In imposing a statute of limitations on federal habeas
petitions in the AEDPA, Congress must have accepted the possibility
that some cases would receive no federal habeas review. See 28
U.S.C.A. § 2244(d). But like every circuit to consider the question,
we have concluded that Congress did not eliminate a court's equitable
power to toll the statute in the interest of justice, and that the
AEDPA's statute of limitations is subject to equitable tolling. See
Harris, 209 F.3d at 329-30 (so holding and collecting cases); see also
Dunlap, 250 F.3d at 1007 (so holding); Allen v. Mitchell, 276 F.3d
183, 187 n.3 (4th Cir. 2001) (noting that "the statute of limitations
established by § 2244(d) is not jurisdictional"). Thus, in appropriate
cases, equitable tolling of the AEDPA's limitations period is within
a court's power.
Several factors would seem to support tolling in this case.4 Rouse
has diligently pursued every previous avenue of review available to
him. Cf., e.g., Spencer, 239 F.3d at 630 (finding "delay[ ] at every
juncture of [Spencer's] post-plea, state and federal proceedings").
Moreover, the record reveals that Rouse himself neither knew of nor
consented to a late filing of his federal habeas petition, and no evi-
dence suggests that the late filing was a tactical decision of counsel.
Rather, Rouse's former counsel confronted last-minute difficulties
and, without Rouse's knowledge, made an appalling error in calculat-
ing the limitations period. Furthermore, the State has made no show-
ing that it has been prejudiced in any way by the one-day delay in the
filing of Rouse's first habeas petition, and it is hard to imagine that
such a showing could be made.
If Rouse had offered only these reasons, however, our precedent
might well have foreclosed the application of equitable tolling in this
case. We have held that a "mistake by a party's counsel in interpreting
a statute of limitations does not present the extraordinary circum-
stance beyond the party's control where equity should step in to give
the party the benefit of his erroneous understanding." See Harris, 209
____________________________________________________________
4 We reject Rouse's claim that his health supports tolling. Rouse's for-
mer counsel filed his habeas petition on February 8, 2000, and Rouse
simply provides no reason why his medical condition barred filing only
one day earlier.
9

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F.3d at 331; accord Spencer, 239 F.3d at 628-29. But we reached this
conclusion in non-capital cases, involving greater delay, and far less
compelling habeas claims that had received at least one hearing in
state court. Id. Moreover, in so holding, we expressly recognized that
equitable tolling is "a discretionary doctrine that turns on the facts and
circumstances of a particular case" and, therefore, "does not lend
itself to bright-line rules." Harris, 209 F.3d at 330 (quoting Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999)). Indeed, we explained
that, although some statutes of limitations "serve[ ] policy interests
that would be adversely affected if the statutory limitations provisions
were not strictly adhered to," the habeas context is different, warrant-
ing greater flexibility in the application of the AEDPA's statute of
limitations. Id. at 329 (emphasis added).
Thus, in determining whether to exercise its equitable power to toll
the statute of limitations here, the district court was required under
Harris to consider the particular "facts and circumstances" of Rouse's
case. They are compelling. Rouse filed his petition only one day late.5
Cf. Spencer, 239 F.3d at 631 (five days late); Harris, 209 F.3d at 328
(six months late). Although the petition was late, his counsel's disas-
trous error rested on plausible, albeit incorrect, legal theories, some
of which have since been clarified. See Fahy v. Horn, 240 F.3d 239,
245 (3d Cir. 2001) (noting lack of clarity in the relevant law and plau-
sibility of a petitioner's legal theory in equitably tolling the AEDPA),
cert. denied, 122 S. Ct. 323 (2001). Moreover, Rouse has never
received a hearing on his habeas claims, in any forum — state or fed-
eral. Cf. Spencer, 239 F.3d at 627-28 (two evidentiary hearings in
state court); Brief for Appellant in Harris, 209 F.3d 325, at 3 (eviden-
tiary hearing in state court). Without equitable tolling, he will lose
any hope of receiving such a hearing and will be afforded no federal
habeas review at all.
____________________________________________________________
5 For reasons implicit in our earlier discussion of prejudice to the State,
we reject a suggestion by the Fifth Circuit that the length of a petitioner's
delay is not a relevant consideration in equitable tolling analysis. See
Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir. 2002), petition
for cert. filed, (U.S. Sept. 17, 2002) (No. 02-6969). A court considering
equitable tolling should consider the length of a petitioner's delay, to
ensure adequate attention to the possibility of prejudice to the State, in
the case of lengthy delays, and to ensure fairness to the petitioner, in the
case of very short ones.
10

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Furthermore, Rouse presents what must be considered on its face
a powerful constitutional claim: that a juror's personal vengeance and
racial bias infected his death sentence. To date, he has never received,
even post-sentence, any opportunity to explore at a hearing — before
any court — the evidence that one of his jurors harbored an invidious
prejudice against African-Americans, the evidence as to the potential
effect of the sexual assault and murder of the juror's mother on his
impartiality, or the evidence that in fact the juror concealed active
bias — all matters that may require credibility determinations. If
proved, these facts support a strong constitutional claim. See Morgan
v. Illinois, 504 U.S. 719, 728 (1992) (reviewing the "strictures dic-
tated by the Sixth and Fourteenth Amendments to ensure the impar-
tiality of any jury that will undertake capital sentencing" (emphasis
omitted)); McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 556 (1984); Rosales-Lopez v. United States, 451 U.S. 182, 190-
91 (1981); Irvin v. Dowd, 366 U.S. 717 (1961). To be sure, the State
presented sufficient evidence to prove Rouse guilty of these terrible
crimes, and a federal court might conclude that Rouse's habeas
claims, including his juror bias claim, lack merit even with respect to
his sentencing — but at present, no federal court has ever examined
any of his habeas claims.6
____________________________________________________________
6 As noted above, the district court did not even have the opportunity
to examine the decision of the state post-conviction court. That decision
was submitted to us late in the appellate litigation of this case, after the
case had been argued once. On examining it, we can only conclude that
even if it had been before the district court, it would not have lessened
the compelling nature of Rouse's juror bias claim at this preliminary
stage. This is so because the state post-conviction court appears to have
disposed of this claim, without a hearing, on the basis of a credibility
determination. After noting "that the acoustics in the courtroom where
defendant was tried sometimes makes hearing difficult," the state court
concluded that the juror "did not hear" a question as to whether any juror
had a relative who had been a victim of a violent crime. Yet the follow-
ing facts contradict this conclusion: (1) the juror's admission that "I
knew that if I disclosed what had happened to my mother, I would be
excused from serving . . . I wanted to serve, . . . so I did not reveal the
information"; (2) the state post-conviction court's acknowledgment of
this admission; (3) the court's express finding (substantiated by the voir
dire transcript) that all prospective jurors were asked if they had "been
a victim of any kind of violent crime or any family members or any close
11

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Moreover, the sentence that is assertedly tainted by racial and per-
sonal bias is a death sentence. Until today, we have not had occasion
to consider equitable tolling in a habeas case involving a sentence of
death. Cf. Spencer, 239 F.3d at 627 (life sentence); Harris, 209 F.3d
at 326 (same). We have, however, implicitly recognized that the pres-
ence of a death sentence affects the equitable tolling analysis. Thus,
in holding that equitable tolling is proper under the AEDPA, we have
cited, with approval, the statement that although in some contexts,
strict limitations rules may have to yield "occasional injustices" "in
order to maintain a workable regime," these "occasional injustices . . .
are decidedly not an acceptable cost of doing business in death pen-
alty cases." Harris, 209 F.3d at 329 (citing Calderon v. United States
Dist. Court for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288
n.4 (9th Cir. 1997) (internal quotation marks and citations omitted;
emphasis added), overruled on other grounds, 163 F.3d 530 (9th Cir.
1998) (en banc)).7
____________________________________________________________
relative ever been a victim of a violent crime"; (4) the court's further
express finding that the transcript reflected no response to that question;
and (5) the court's acknowledgment that immediately after the group
question about family victims, prospective jurors were told that the trial
"involv[ed] a first-degree murder, armed robbery, and rape" (information
the juror plainly took in, based on his knowledge of the nature of the trial
and his resulting admitted desire to serve on the jury). Indeed, the state
court found that the juror "did not hear" the question although not even
the juror himself made this claim directly; instead the juror simply stated
in writing that he was not "congniznant [sic] of any jurors' group ques-
tioning . . . on this subject." Therefore, the state court apparently reached
its dispositive finding, a credibility determination that contradicts the
official written record of the voir dire, without the benefit of face-to-face
consideration of any sort, without a hearing, and without even a direct
assertion by the juror in support of the finding. See 28 U.S.C.A.
§ 2254(d)(2), (e)(1) (West Supp. 2002) (governing federal habeas review
of state-court factual findings under AEDPA).
7 Although other courts have on occasion refused tolling in capital
cases, they have done so in cases involving greater (typically much
greater) delay, or when petitioners have shown less diligence than Rouse,
or both. See Fierro v. Cockrell, 294 F.3d 674, 679-80 (5th Cir. 2002)
(considering a habeas petition filed three months late), petition for cert.
filed, (U.S. Sept. 7, 2002) (No. 02-6336); Lookingbill, 293 F.3d at 264
12

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The fact is that death is different. The phrase itself is timeworn and
familiar — because it is true. Like the Supreme Court, we must recog-
nize that "in its finality," death "differs more from life imprisonment
than a 100-year prison term differs from one of only a year or two."
Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opin-
ion). For this reason, the death penalty presents different and far more
serious concerns than any other sanction. See, e.g., Ring v. Arizona,
122 S. Ct. 2428, 2441 (2002) ("[T]here is no doubt that `[d]eath is dif-
ferent.'" (citation omitted)); Gardner v. Florida, 430 U.S. 349, 357
(1977) (stating that "death is a different kind of punishment") (opin-
ion of Stevens, Stewart, and Powell, JJ.); see also Bracy v. Schomig,
286 F.3d 406, 415 (7th Cir. 2002) (en banc) ("[W]e are again mindful
that death is indeed different."), cert. denied, 123 S. Ct. 169 (2002).
In short, the conclusion "that `death is different' . . . mean[s] that the
firm view of our society demands that it be treated differently in cer-
tain identifiable respects. . . ." Thompson v. Oklahoma, 487 U.S. 815,
877-78 (1988) (Scalia, J., dissenting).
The Supreme Court has emphasized that courts, at all levels, con-
sidering the deliberate infliction of death are to act with particular
care. The Court has insisted that "the qualitative difference of death
from all other punishments requires a correspondingly greater degree
of scrutiny of the capital sentencing determination," that is, "the pro-
cedure by which the State imposes the death sentence," to "ensur[e]
that the death penalty is not meted out arbitrarily or capriciously."
California v. Ramos, 463 U.S. 992, 998-99 (1983) (emphasis in origi-
nal); accord Harmelin v. Michigan, 501 U.S. 957, 995 (1991); Cald-
well v. Mississippi, 472 U.S. 320, 329 (1985); see also Bracy, 286
F.3d at 412 ("Like all others sentenced to death, Bracy and Collins are
____________________________________________________________
(considering a habeas petition filed four days late and excused only by
counsel's somewhat late appointment and "busy docket"); Kreutzer v.
Bowersox, 231 F.3d 460, 461-62 (8th Cir. 2000) (considering a habeas
petition filed two weeks late); Cantu-Tzin v. Johnson, 162 F.3d 295, 297-
99 (5th Cir. 1998) (considering a case in which no habeas petition was
ever filed and a motion for stay was filed two months after the deadline
for a petition had passed). Regardless of diligence, however, we have
found no case in which any circuit refused equitable tolling to a capital
petitioner who filed his first federal habeas petition one day late.
13

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entitled to our painstaking review of their convictions and death sen-
tence because, as the Supreme Court has often recognized, death is
different." (citation omitted)).
Indeed, the Supreme Court itself has been willing "in the interests
of justice" to overlook requirements that it would ordinarily impose
in non-capital cases. Eddings v. Oklahoma, 455 U.S. 104, 117 n.*
(1982) (O'Connor, J., concurring) (quoting Wood v. Georgia, 450
U.S. 261, 265 n.5 (1981)). For example, the Court has treated the
requirement that an argument be raised below, ordinarily a prerequi-
site for appellate review, as merely "technical [ ]." Id. (O'Connor, J.,
concurring in the Court's reversal of a death sentence, despite a dis-
senting argument that the contention had been waived below,
"[b]ecause the trial court's failure . . . risks erroneous imposition of
the death sentence") (citation omitted); see id. at 105, 113 n.9 (major-
ity opinion) (reversing a death sentence while citing Wood, 450 U.S.
at 265 n.5 (overlooking failure to raise an argument below "in the
interests of justice"), in partial response to the dissenting argument of
waiver below); see also Dobbs v. Zant, 506 U.S. 357, 360 (1993)
(Scalia, J., concurring) ("I am willing to make an exception from that
[previously stated `general' internal] rule in capital cases — but only
where there is a realistic likelihood that the `technical error' affected
the conviction or the sentence." (emphasis added)). Confronting the
particular demands of capital cases, the Supreme Court "has gone to
extraordinary measures to ensure that the prisoner sentenced to be
executed is afforded process that will guarantee, as much as is
humanly possible, that the sentence was not imposed out of whim,
passion, prejudice, or mistake." Eddings, 455 U.S. at 118 (O'Connor,
J., concurring).
We look to the Court's example today. Like the Supreme Court, we
acknowledge the special demands of cases in which a defendant
stands sentenced to death. Given that this case, in which Rouse faces
execution, involves the shortest possible delay in filing the habeas
petition, a total lack of prejudice to the State, a petitioner who was
diligent in all other regards, and habeas claims, including at least one
apparently compelling constitutional claim, that will receive no fed-
eral habeas review and no hearing in any court if the limitations
period is not tolled, we conclude that the district court's refusal to toll
the limitations period was indeed "unconscionable." Harris, 209 F.3d
14

-- 15 of 36 --

at 330. If ever a case was suitable for an exercise of a court's discre-
tion — the most minor exercise imaginable, a one-day tolling of a
limitations period — surely, this is that case.
In reaching this conclusion, we have considered the limited impact
of such a decision, both on our system of justice as a whole, and
within this circuit. A number of systemic and legal concerns that are
often at the heart of habeas jurisprudence on the merits have no rele-
vance to equitable tolling. In particular, equitable tolling raises none
of the concerns related to constitutional interpretation that are some-
times invoked in opposition to a "`death-is-different' jurisprudence,"
Shafer v. South Carolina, 532 U.S. 36, 55 (2001) (Scalia, J., dissent-
ing); see Simmons v. South Carolina, 512 U.S. 154, 178-79 (1994)
(Scalia, J., joined by Thomas, J., dissenting), and it does not in any
way affect the "`standard of review on federal habeas corpus,'"
because AEDPA's stringent standards of review of course still apply.
Herrera v. Collins, 506 U.S. 390, 405 (1993) (quoting Murray v.
Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion)); see 28 U.S.C.A.
§ 2254(d), (e) (West Supp. 2002). Similarly, equitable tolling of this
federal deadline poses no threat of intrusion on a state's enforcement
of its own procedural rules, cf. Coleman v. Thompson, 501 U.S. 722
(1991), on a state's legislative choices, cf. Murray, 492 U.S. at 13-15
(O'Connor, J., concurring, and Kennedy, J., concurring in the judg-
ment), or on the prerogatives of the executive branch. Cf. Ohio Adult
Parole Auth. v. Woodard, 523 U.S. 272, 276, 284-85 (1998) (plurality
opinion).
Nor do we see any cause to fear that within our own circuit, equita-
ble tolling in Rouse's case might "loose the rule of law to whims
about the adequacy of excuses, divergent responses to claims of hard-
ship, and subjective notions of fair accommodation." Harris, 209 F.3d
at 330. Of course, all non-capital petitions continue to be governed by
Harris. Even in capital cases, the effect of tolling in this case will be
slight, for several reasons.
Before or after a holding that limitations should be tolled in
Rouse's case, a deliberate decision to file late — to gamble any
chance of federal review of a capital petitioner's habeas claims in
hopes that equity would slightly extend the deadline — would consti-
tute recklessness of a nature and a magnitude that we decline to
15

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impute to our Bar. Thus, the limited precedent established by tolling
in this case creates little incentive for habeas petitioners to file after
the deadline. Furthermore, even if this were attempted, equitable toll-
ing is "a discretionary doctrine that turns on the facts and circum-
stances of a particular case," id. at 330 (internal quotation marks and
citation omitted), and application of the doctrine will continue to
depend on a court's confidence that "there is no evidence of abuse of
the process." See Fahy, 240 F.3d at 245. Most importantly, the
strength of the claims in a habeas petition obviously affects a court's
decision to exercise its equitable power to toll limitations, and few
petitioners present claims as facially compelling as Rouse's. See Lon-
char v. Thomas, 517 U.S. 314, 320, 322, 325 (1996) (emphasizing the
distinction between habeas claims suitable for summary dismissal and
those warranting more attention in reversing a lower court's employ-
ment of "special ad hoc `equitable' reasons not encompassed within
the framework" of the Habeas Corpus Rules to bar all consideration
of a first federal capital habeas petition); cf. Spencer, 239 F.3d at 630
n.2 (suggesting that petitioner's underlying habeas claim was weak
when determining whether district court's tolling decision was cor-
rect). Because this is Rouse's first federal habeas petition, moreover,
a court must exercise great care before allowing it to be summarily
dismissed. See Lonchar, 517 U.S. at 324 ("Dismissal of a first federal
habeas petition is a particularly serious matter, for that dismissal
denies the petitioner the protections of the Great Writ entirely, risking
injury to an important interest in human liberty." (emphasis in origi-
nal)). Of course, in this case as in any other, the district court on
remand remains free to dispose promptly of any claim that it deter-
mines lacks merit.
We note that other courts have tolled the AEDPA limitations
period in cases involving more egregious delay. In a capital case
involving a petition that was thirty-five days late due to attorney error
in interpreting debatable procedural provisions, the Third Circuit
tolled the precise statute at issue here. See Fahy, 240 F.3d at 245;
accord Banks v. Horn, 271 F.3d 527, 534-35 (3d Cir. 2001), rev'd on
other grounds, 122 S. Ct. 2147 (2002) (applying equitable tolling in
a capital case involving a petitioner convicted of murdering thirteen
people). The court reasoned that a court "must allow less than
`extraordinary' circumstances to trigger equitable tolling of the
AEDPA's statute of limitations when a [capital] petitioner has been
16

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diligent in asserting his or her claims and rigid application of the stat-
ute would be unfair." Id.; see also Corjasso v. Ayers, 278 F.3d 874
(9th Cir. 2002) (tolling AEDPA's statute of limitations despite a pro-
cedural defect and listing cases); Lagrone v. Cockrell, 2002 WL
1968246, at *8-9 (N.D. Tex. Aug. 19, 2002); DeJesus v. Miller, 215
F. Supp. 2d 410, 412 (S.D.N.Y. Aug. 13, 2002). Like the Third Cir-
cuit, we believe it is appropriate that a court toll limitations "under the
facts of this capital case where there is no evidence of abuse of the
process." Fahy, 240 F.3d at 245; accord Banks, 271 F.3d at 535. In
view of the facts and circumstances of this capital case, including the
brevity of the delay and the apparently compelling nature of an under-
lying constitutional claim, to do otherwise would be "unconscionable"
and might well result in "gross injustice." Harris, 209 F.3d at 330.
V.
Rouse faces his death with reason to believe that one of the twelve
citizens entrusted with doing impartial justice in his case sought so
eagerly to condemn him that the juror deliberately misled the court by
hiding basic facts as to his particular bias against Rouse and his con-
tempt for all African-Americans. In Rouse's interest and in the inter-
est of justice, we will not allow one day's delay to rob a man on death
row of all federal habeas review of such a serious and troubling claim.
Although tolling will remain extremely infrequent even in capital
cases, we must recognize the rare circumstance in which equity
demands tolling.
For these reasons, we believe that the district court was incorrect
in refusing to toll the statute of limitations by one day. Accordingly,
we must grant a certificate of appealability. Whether Rouse can prove
his allegations of juror bias, or any of his other underlying claims,
remains to be seen. The district court must "make the first assessment
of their underlying merit." Jefferson, 222 F.3d at 289; see also Mateo,
310 F.3d at 41-42. Therefore, we vacate the judgment of the district
court and remand the case for further proceedings consistent with this
opinion.
VACATED AND REMANDED
17

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WILLIAMS, Circuit Judge, dissenting:
I agree with the majority's conclusion that Rouse's petition was
untimely because it was filed more than one year after the state court
denied Rouse's petition for certiorari.1 I disagree, however, with the
majority's conclusion that ordinary attorney error coupled with sensa-
tional allegations justifies equitable tolling in capital cases. I would
affirm the district court's decision that equitable tolling is not appro-
priate in this case. Equitable tolling "is appropriate when, but only
when, `extraordinary circumstances beyond [the petitioner's] control
prevented him from complying with the statutory time limit.'" Spen-
cer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001) (quoting Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). Rouse has not shown
extraordinary circumstances beyond his control. By allowing ordinary
attorney error to equitably toll the limitations period, the majority
upsets the careful balance that Congress crafted in the Antiterrorism
and Effective Death Penalty Act (AEDPA) statute of limitations, even
where, as here, it is plain that the petitioner is guilty and properly con-
victed of an extraordinarily heinous crime.2 Thus, I respectfully dis-
sent.
____________________________________________________________
1 For prisoners like Rouse, whose criminal convictions preceded enact-
ment of the Antiterrorism and Effective Death Penalty Act (AEDPA), the
limitations period began to run with the AEDPA's effective date, April
24, 1996. Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).
Because Rouse filed his motion for state post-conviction review before
April 24, 1996, the statute of limitations was tolled until the conclusion
of the state proceeding. 28 U.S.C.A. § 2244(d)(2) (West Supp. 2002).
2 The facts as found by the North Carolina Supreme Court are as fol-
lows:
[Responding to a call,] [s]everal officers soon arrived at The
Pantry [in Asheboro, North Carolina.] [Officer Hinshaw] heard
a muffled sound coming from a storage room. He and Sergeant
York, who had arrived at the scene, entered the room where they
found [Rouse] against a wall. Hinshaw aimed his gun at defen-
dant, and defendant said, "I ain't got nothing, man."
[Rouse] had blood on him, especially on the front of his shirt,
his pants, his hands, his waist, his legs and his underwear. There
were abrasions on his knees. His pants were unzipped but fas-
tened at the top. His belt was hanging off. Hinshaw ordered
18

-- 19 of 36 --

I.
We may not entertain Rouse's appeal unless we grant a certificate
____________________________________________________________
defendant to freeze and pinned him behind the door. Defendant
was then handcuffed and taken out of the room. Lieutenant
Charles Bulla searched defendant in the store and found in
defendant's pocket three rolls of pennies in a plastic container.
Defendant was then taken away. Defendant did not resist the
officers at this or any time. No odor of alcohol was found on
defendant's breath.
On the floor of the storage room was Hazel Colleen Broad-
way, lying in a pool of blood. She tried to tell Hinshaw some-
thing but soon died. Broadway was covered in blood. There were
handprints on her body. She was wearing a blouse, and her pants
had been pulled down to her feet. . . . [She had] a knife in [her]
neck. The blade part of the knife was bent in a ninety-degree
angle just below the handle.
More officers soon arrived at the scene who surveyed the store
and collected evidence. The store was in disarray. A cigarette
stand was overturned, and cigarettes were strewn about the floor.
The cash register was turned sideways. Two empty rolls for pen-
nies were on the floor. There was some other debris on the floor
beside a trash can and some other penny rolls which seemed to
have been knocked out of the safe. The bar stool behind the cash
register had some blood on it. There were also spots of blood
near the cash register. . . .
. . . [B]lood on defendant's hands, shirt and underwear was
consistent with samples of blood taken from the victim. . . .
[The medical examiner] concluded that the victim died as a
result of blood loss caused by a stab wound to the left neck, sev-
ering the carotid artery and jugular vein. A person could live ten
to fifteen minutes after being stabbed in that location. In addition
to the lethal knife wound, there were numerous other wounds to
the victim including bruises, stab wounds and abrasions to her
neck, chest, stomach, arms, shoulders, thighs, knee, palm,
thumb, back, and elbow. Many of these were consistent with a
sharp cutting instrument. Other injuries were consistent with a
blunt instrument.
State v. Rouse, 451 S.E.2d 543, 548 (N.C. 1994) (direct appeal).
19

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of appealability (COA). 28 U.S.C.A. § 2253(c)(1) (West Supp. 2002);
Slack v. McDaniel, 529 U.S. 473, 482 (2000); cf. Soto v. United
States, 185 F.3d 48, 51 (2d Cir. 1999) (noting that a COA is a juris-
dictional prerequisite to appeal in a § 2254 case). "Under AEDPA, a
COA may not issue unless `the applicant has made a substantial
showing of the denial of a constitutional right.'" Slack, 529 U.S. at
483 (quoting 28 U.S.C.A. § 2253(c)(2)). In Slack, the Supreme Court
clarified the showing required to satisfy § 2253(c) where the district
court dismisses the petition based on procedural grounds. See id. at
484. Where a district court "denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct
in its procedural ruling." Id. "Section 2253 mandates that both show-
ings be made before the court of appeals may entertain the appeal."
Id. at 485. I do not believe that the district court's procedural ruling
is debatable, and thus, do not believe that Rouse has made the
required showing. Because my friends in the majority, however, have
concluded that Rouse has made a substantial showing of the denial of
a constitutional right, the COA has been granted.3 Therefore, I, too,
reach the merits of the district court's procedural ruling.4
____________________________________________________________
3 I do not read the majority opinion, ante at 4, as suggesting that, where
the district court denied the petition on procedural grounds, a court of
appeals can grant a COA without considering whether the petition states
a valid claim of the denial of a constitutional right. I agree that in deter-
mining whether this threshold inquiry is satisfied, a court may choose to
take only a "quick look" at the petition to determine if it facially alleges
the denial of a constitutional right.
4 The majority reviews the district court's decision under a de novo
standard of review. Ante at 8. In neither Harris v. Hutchinson, 209 F.3d
325 (4th Cir. 2000), nor Spencer v. Sutton, 239 F.3d 626 (4th Cir. 2001),
did we explicitly articulate or discuss the proper standard of review, and
thus, I question whether de novo review was established as binding cir-
cuit precedent. See Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)
("[S]ince we have never squarely addressed the issue, and have at most
assumed the applicability of [the standard], we are free to address the
issue on the merits.") In the non-habeas context, we review the district
20

-- 21 of 36 --

The district court dismissed Rouse's petition as untimely because
it was filed after the one-year limitations period and "[t]he extant case
law does not provide for equitable tolling" based on a "miscalculation
by counsel" about the statute of limitations.5 (J.A. at 330-33.) Rouse
argues that equitable tolling should apply because the conduct of his
____________________________________________________________
court's equitable tolling decision for an abuse of discretion. Chao v. Va.
Dep't of Transp., 291 F.3d 276, 279-80 (4th Cir. 2002).
I note that there is a split among the circuits as to the proper standard
of review. Compare Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir.
2002) ("We review the district court's denial of equitable tolling for an
abuse of discretion."); Delaney v. Matesanz, 264 F.3d 7, 13 (1st Cir.
2001) (same); Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.
2001) (same), and cert. denied, 122 S. Ct. 1442 (2002), with United
States v. Saro, 252 F.3d 449, 455 n.9 (D.C. Cir.) (holding that de novo
review applies when the district court holds that the facts cannot justify
equitable tolling as a matter of law), cert. denied, 534 U.S. 1149 (2001);
Dunlap v. United States, 250 F.3d 1001, 1007 n.2 (6th Cir.) ("[W]e hold
that where the facts are undisputed or the district court rules as a matter
of law that equitable tolling is unavailable, we apply the de novo stan-
dard of review to a district court's refusal to apply the doctrine of equita-
ble tolling; in all other cases, we apply the abuse of discretion
standard."), cert. denied, 122 S. Ct. 649 (2001); Jihad v. Hvass, 267 F.3d
803, 806 n.3 (8th Cir. 2001) (applying de novo review because district
court treated equitable tolling as an issue of law); Helton v. Sec'y for
Dep't of Corrections, 259 F.3d 1310, 1312 (11th Cir. 2001) ("We review
the district court's application of equitable tolling de novo, as the ques-
tion is `solely one of law.'" (quoting Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999))); and Miles v. Prunty, 187 F.3d 1104, 1105
(9th Cir. 1999) ("[W]here, as here, the facts are undisputed as to the
question of equitable tolling, we review de novo."). Applying either stan-
dard, I would affirm the district court's decision that equitable tolling
was inappropriate on the facts of this case. I do not know whether apply-
ing the abuse of discretion standard would affect the majority's disposi-
tion.
5 The district court referred Rouse's petition to a magistrate judge, pur-
suant to 28 U.S.C.A. § 636 (West 1993), who submitted a recommenda-
tion that the petition be dismissed as untimely. After a de novo review
of the magistrate's recommendation, the district court adopted and
affirmed the magistrate judge's ruling. (J.A. at 388).
21

-- 22 of 36 --

former attorneys was "grossly negligent" and "unprofessional."6
(Appellant's Br. at 27-28.) Equitable tolling "has been applied in `two
generally distinct kinds of situations. In the first, the plaintiffs were
prevented from asserting their claims by some kind of wrongful con-
duct on the part of the defendant. In the second, extraordinary circum-
stances beyond plaintiffs' control made it impossible to file the claims
on time.'" Harris, 209 F.3d at 330 (quoting Fisher v. Johnson, 174
F.3d 710, 713 (9th Cir. 1999)). "As a consequence, neither `excusable
neglect' nor ignorance of the law is sufficient to justify equitable toll-
ing." Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (quoting
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)). As in Har-
ris, there is no allegation in this case that the State of North Carolina
contributed in any way to Rouse's delay in filing his petition. "There-
fore, to invoke equitable tolling, [Rouse] must be about to point to
some other extraordinary circumstance beyond his control that pre-
vented him from complying with the statutory time limit." Harris,
209 F.3d at 330.
We recently held, in the context of a habeas petition, that "a mis-
take by a party's counsel in interpreting a statute of limitations does
not present the extraordinary circumstance beyond the party's control
where equity should step in to give the party the benefit of his errone-
ous understanding." Harris, 209 F.3d at 331; see also Fierro, 294
F.3d at 683 ("[C]ounsel's erroneous interpretation of the statute of
limitations provision cannot, by itself, excuse the failure to file [the]
habeas petition in the district court within the one-year limitations
period."); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001)
("[A]ttorney error [is] inadequate to create the `extraordinary' circum-
stances equitable tolling requires."); Sandvik v. United States, 177
F.3d 1269, 1272 (11th Cir. 1999) (refusing to apply equitable tolling
where late filing was caused by attorney's use of ordinary mail to
send petition less than a week before it was due); Taliani v. Chrans,
189 F.3d 597, 598 (7th Cir. 1999) (holding that a lawyer's miscalcula-
tion of the limitation period was not a valid basis for equitable toll-
ing). As further support for the proposition that attorney error is not
____________________________________________________________
6 Rouse also argues that tolling should apply because of his medical
condition during the limitations period. I agree with the majority that
Rouse's medical condition does not entitle him to equitable tolling. See
ante at 9 n.4.
22

-- 23 of 36 --

an extraordinary circumstance, I note that attorney error during
habeas proceedings is not itself a ground for relief in a § 2254 pro-
ceeding. See 28 U.S.C.A. § 2254(i) (West Supp. 2002) ("The ineffec-
tiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a pro-
ceeding arising under section 2254."). Moreover, the actions of
Rouse's attorneys are attributable to Rouse, see Coleman v. Thomp-
son, 501 U.S. 722, 753-54 (1991) (explaining that attorney error,
short of ineffective assistance of counsel, is, under standard principles
of agency, attributable to the client),7 and thus, do not present "cir-
cumstances external to the party's own conduct," Harris, 209 F.3d at
330.8
____________________________________________________________
7 In Coleman v. Thompson, the Supreme Court explained that attorney
error that constitutes ineffective assistance of counsel is not attributable
to the petitioner, "not because . . . the error is so bad that `the lawyer
ceases to be an agent of the petitioner,'" but rather, because "`the Sixth
Amendment itself requires that responsibility for the default be imputed
to the State.'" 501 U.S. 722, 754 (1991) (quoting Murray v. Carrier, 477
U.S. 478, 488 (1986)). Rouse did not have a constitutional right to coun-
sel in his federal habeas proceedings; thus, he cannot establish constitu-
tional ineffective assistance of counsel. See Hunt v. Nuth, 57 F.3d 1327,
1340 (4th Cir. 1995) ("Because Hunt had no constitutional right to an
attorney during his federal habeas proceeding, . . . he could not establish
constitutional ineffective assistance of counsel . . . ."). The statutory right
to counsel in habeas proceedings under 21 U.S.C.A. § 848(q)(4) (West
1999) does not change this result because Rouse bears the risk of attor-
ney error absent a constitutional violation. Id. at 1340 n.22 ("Although
Hunt correctly claims that he has a statutory right to counsel in habeas
proceedings under 21 U.S.C. § 848, the Supreme Court has held that `[i]n
the absence of a constitutional violation, the petitioner bears the risk in
federal habeas for all attorney error made in the course of the representa-
tion . . . .'" (quoting Coleman, 501 U.S. at 754)).
8 Rouse relies heavily on McLaughlin v. Lee, No. 5:99-HC-436
(E.D.N.C. Oct. 17 2000) (unpublished) (Attachment 4, Appellant's Br.),
in which the district court equitably tolled the one-year limitations
period. In that case, McLaughlin's attorneys, as the district court empha-
sized, "did not make a `mistake' as to the statutory requirements. Instead,
they failed to take any action at all." Id. at 7. The court concluded that
McLaughlin's attorneys placed him "in the extraordinary situation of
believing that he had counsel when, in fact, he had counsel in name
only." Id.
23

-- 24 of 36 --

Because Rouse does not point to any circumstance that was either
extraordinary or external to his own conduct, I am satisfied that he is
not "a petitioner with a special call on equity," and I would affirm the
district court's ruling that equitable tolling is inappropriate on the
facts of this case.
II.
My colleagues in the majority reach a contrary result by concluding
that we need not follow our equitable tolling decisions in Harris v.
Hutchinson and Spencer v. Sutton because this is a capital case. See
ante at 15 (noting that Harris would continue to apply in "all non-
capital petitions"). After casting aside the restrictions of Harris, the
majority concludes that the length of Rouse's delay, the lack of an
evidentiary hearing, the "plausibility" of Rouse's counsel's legal
error, and the "strength" of Rouse's claim justify equitable tolling. See
ante at 10. I must disagree with the majority on both of these conclu-
sions. The procedural rules for post-conviction review of capital and
noncapital cases are the same. Even if we were allowed to create spe-
cial exceptions for capital cases, by the majority's own criteria, this
case would not warrant such treatment because Rouse's claim, which
must be evaluated in light of the deference that we are statutorily
required to give to state court factual findings and conclusions of law,
is far from strong.
A.
The majority initially lists several reasons why our recent cases
applying equitable tolling in the habeas context do not control this
case, see ante at 10 (noting that Harris and Spencer were "non-capital
____________________________________________________________
Even assuming that such utter abandonment constitutes extraordinary
circumstances "external to the party's own conduct," Harris, 209 F.3d at
330, justifying equitable tolling, those circumstances are not present
here. Despite Rouse's attempts to characterize his prior attorneys' con-
duct as "grossly negligent" and thus akin to such abandonment, it is sim-
ply not true that Rouse's attorneys took no action at all. They filed the
petition, albeit one day late. Theirs was an ordinary legal error to which
the principles of equitable tolling do not apply.
24

-- 25 of 36 --

cases, involving greater delay, and far less compelling habeas claims
that had received at least one hearing in state court"), but concludes
that Harris continues to apply to all noncapital cases, see ante at 15
("Of course, all non-capital petitions continue to be governed by Har-
ris."). To support its position that the equitable tolling analysis should
be radically different in capital cases, the majority cites a number of
Supreme Court cases for the abstract proposition that "death is differ-
ent," but the majority ignores the specific holdings of those cases.
While it is undeniable that the Court has treated death differently, it
has done so primarily by requiring heightened procedural safeguards
at trial.9
Any distinctions between the procedures required in capital and
noncapital cases "are primarily relevant to trial," and the Supreme
Court "has generally rejected attempts to expand any [such] distinc-
tions further." Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,
281 (1998) (plurality opinion); see, e.g., Herrera v. Collins, 506 U.S.
390, 405 (1993); Murray v. Giarratano, 492 U.S. 1, 8-10 (1989) (plu-
rality opinion); Satterwhite v. Texas, 486 U.S. 249, 256-58 (1988);
Smith v. Murray, 477 U.S. 527, 538-39 (1986). The Court has, for
example, refused to create a special death penalty exception to the tra-
ditional harmless error standard of appellate review set forth in Chap-
man v. California, 386 U.S. 18 (1967). See Satterwhite, 486 U.S. at
256-58. Satterwhite illustrates that even though capital defendants
might be entitled to heightened procedural safeguards at trial, the
standard of appellate review does not change solely because a capital
sentence has been imposed. The Court first explained that capital
defendants have a constitutional right to consult with counsel prior to
submitting to a psychiatric examination that would determine future
dangerousness. See id. at 254. In addressing the error in failing to
allow the defendant to consult with his counsel, however, the Court
held that traditional harmless error analysis applied even in the capital
context. See id. at 258. That is, death made a difference in terms of
what procedures the state had to employ at trial but not in the appel-
late standard of review.
____________________________________________________________
9 Although Rouse's underlying claims pertain to his trial, we deal here
only with the AEDPA limitations period.
25

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In addition, the Supreme Court has repeatedly declined to treat
death differently in the post-conviction context. In Smith v. Murray,
a capital case, the Court specifically rejected the claim that the princi-
ples governing procedural default "apply differently depending on the
nature of the penalty a State imposes for the violation of its criminal
laws." Smith, 477 U.S. at 538. Similarly, in Giarratano, the Court
concluded that "the rule of Pennsylvania v. Finley [that there is no
constitutional right to counsel in state post-conviction proceedings]
should apply no differently in capital cases than in noncapital cases."
Giarratano, 492 U.S. at 10 (plurality opinion); see also Herrera, 506
U.S. at 405 (holding that claims of actual innocence are not grounds
for habeas relief even in a capital case and noting that "we have
`refused to hold that the fact that a death sentence has been imposed
requires a different standard of review on federal habeas corpus'"
(quoting Giarratano, 491 U.S. at 9 (plurality opinion))); cf. Coleman
v. Thompson, 501 U.S. 722, 750 (1991) (applying, in a capital case,
the general requirement of cause and prejudice to overcome a state
procedural bar).
The cases cited by the majority are not to the contrary. For exam-
ple, quoting California v. Ramos, 463 U.S. 992, 998-99 (1983), the
majority states that "[the Court has insisted that `the qualitative differ-
ence of death from all other punishments requires a correspondingly
greater degree of scrutiny of the capital sentencing determination,'
that is, `the procedure by which the State imposes the death sen-
tence,' to `ensur[e] that the death penalty is not meted out arbitrarily
or capriciously.'" Ante at 13. As this quotation reveals, "the Court's
principal concern has been more with the procedure by which the
State imposes the sentence." Ramos, 463 U.S. at 999. This fits nicely
with the decisions quoted above, which acknowledge that heightened
procedural safeguards may be necessary at trial.10 We deal today with
____________________________________________________________
10 Similarly, the cases cited by the majority, ante at 13, for the proposi-
tion that "death is different" involve heightened procedures necessary at
trial or sentencing. See Ring v. Arizona, ___ U.S. ___, 122 S. Ct. 2428,
2441-42 (2002) (declining to "differentiate capital cases from all others"
and holding that "facts increasing punishment beyond the maximum
authorized by a guilty verdict standing alone . . . must be found by a
jury"); Thompson v. Oklahoma, 487 U.S. 815, 877-78 (1988) (Scalia, J.,
dissenting) (considering whether capital punishment of fifteen year old
26

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the district court's decision on habeas review not to toll the AEDPA
limitations period, not with state capital procedures at trial or sentenc-
ing.
Those cases cited by the majority that discuss appellate decision-
making do not support the majority's position that, in capital cases,
the doctrine of equitable tolling allows courts to rewrite the AEDPA
statute of limitations. The majority, for example, quotes Justice
O'Connor's concurrence in Eddings v. Oklahoma, 455 U.S. 104, 117
n.* (1982): "Indeed, the Supreme Court itself has been willing `in the
interests of justice' to overlook requirements that it would ordinarily
impose in non-capital cases. . . . For example, the Court has treated
the requirement that an argument be raised below, ordinarily a prereq-
uisite for appellate review, as merely `technical [ ].'" Ante at 14 (alter-
ation supplied by majority). Justice O'Connor's discussion, however,
pertained to the question of whether an argument had been waived
below, not the far more serious matter of whether to apply a narrow
equitable exception to a statutory limitations period enacted by Con-
gress and absolute by its terms.
The majority also quotes Justice Scalia's concurrence in Dobbs v.
Zant, 506 U.S. 357, 360 (1993): "I am willing to make an exception
from that [previously stated `general' internal] rule in capital cases —
but only where there is a realistic likelihood that the `technical error'
affected the conviction or the sentence." Ante at 14 (emphasis and
alterations supplied by majority). The majority fails to note, however,
that the "previously stated `general' internal" rule to which the quoted
passage refers is simply the Court's internal presumption against
granting certiorari in cases that have little importance beyond the par-
ties involved; Justice Scalia certainly did not say that exceptions
should be made to rules of law in capital cases.
____________________________________________________________
violates Eighth Amendment); Gardner v. Florida, 430 U.S. 349, 358
(1977) (holding that the judge cannot "impose the death sentence on the
basis of confidential information which is not disclosed to the defendant
or his counsel"); Woodson v. North Carolina, 428 U.S. 280, 305 (1976)
(plurality opinion) (holding that mandatory death sentences for first-
degree murder are unconstitutional); Bracy v. Schomig, 286 F.3d 406,
415 (7th Cir. 2002) (en banc) (evaluating judge's actions during sentenc-
ing phase of trial), cert. denied, 123 S. Ct. 169 (2002).
27

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Again, it is true that the Supreme Court has treated death differ-
ently in the sense that capital cases call for heightened procedural
safeguards at trial. But the majority establishes a special capital-case-
only rule for determining whether to toll the AEDPA's limitations
period. And, as we have explained, the Court has generally refused
to apply different standards to capital cases in the habeas context. The
majority fails to cite even a single Supreme Court case applying dif-
ferent standards to capital cases on habeas review.11
B.
Even if I were to agree with the majority that the fact that a death
sentence has been imposed changes the equitable tolling analysis, the
factors that the majority considers do not justify equitable tolling in
this case. First, the length of Rouse's delay is irrelevant. "At the mar-
gins, all statutes of limitations and filing deadlines appear arbitrary.
The AEDPA relies on precise filing deadlines to trigger specific
accrual and tolling provisions. Adjusting the deadlines by only a few
days in both state and federal courts would make navigating the
AEDPA's timetable impossible. Such laxity would reduce predictabil-
ity and would prevent us from treating the similarly situated equally."
Lookingbill v. Cockrell, 293 F.3d 236, 264-65 (5th Cir. 2002) (declin-
____________________________________________________________
11 The majority suggests that a decision not to toll the limitations period
on the facts of this case would be unprecedented. See ante at 12-13 n.7.
As the majority notes, however, other circuits have refused to invoke
equitable tolling in capital cases, holding steady to their previously artic-
ulated standards. See, e.g., Fierro v. Cockrell, 294 F.3d 674, 682-84 (5th
Cir. 2002) (denying equitable tolling based on "mistaken assumption"
regarding statute of limitations), petition for cert. filed (Sept. 7, 2002)
status available at www.supremecourtus.gov/docket/02-6336.htm; Look-
ingbill v. Cockrell, 293 F.3d 256, 263-65 (5th Cir. 2002) (denying equita-
ble tolling for "garden variety claim[s] of excusable neglect"), petition
for cert. filed (Sept. 17, 2002), status available at
www.supremecourtus.gov/docket/02-6969.htm; Kreutzer v. Bowersox,
231 F.3d 460, 463 (8th Cir. 2000) (holding that "counsel's confusion
about the applicable statute of limitations does not warrant equitable toll-
ing"), cert. denied, 122 S. Ct. 145 (2001); Cantu-Tzin v. Johnson, 162
F.3d 295, 299-300 (5th Cir. 1998) (concluding that equitable tolling of
the AEDPA limitations period was not available to a petitioner who was
responsible for missing the deadline), cert. denied, 525 U.S. 1091 (1999).
28

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ing to equitably toll when the petition was only four days late); cf.
Spencer, 239 F.3d at 631 (declining to equitably toll when the petition
was only five days late). Second, the lack of a hearing on Rouse's
claims cannot be relevant because, as the majority notes, "[i]n impos-
ing a statute of limitations on federal habeas petitions in the AEDPA,
Congress must have accepted the possibility that some cases would
receive no federal habeas review." Ante at 9.
The majority also states that equitable tolling should apply because
Rouse's "disastrous error rested on plausible, albeit incorrect, legal
theories." Ante at 10. The majority cites Fahy v. Horn, 240 F.3d 239
(3d Cir. 2001), for the proposition that reasonable, but incorrect, inter-
pretations of law support equitable tolling. See ante at 10, 16. In
Fahy, however, the law that the petitioner misinterpreted was "inhibi-
tively opaque." Fahy, 240 F.3d at 245. Further, the court noted that
it had previously decided that it "could not confidently determine"
how the state court would rule; thus, the petitioner's misjudgment was
reasonable because "[i]f we could not predict how the Pennsylvania
court would rule on this matter, then surely we should not demand
such foresight from the petitioner." Id. The law underlying Rouse's
incorrect theories, as discussed below, was not unclear or inhibitively
opaque. Nor had any court in this circuit issued a decision indicating
that the law was unclear. Thus, Fahy does not support the majority's
position that ordinary attorney error justifies equitable tolling if the
error was plausible. Cf. Fierro, 294 F.3d at 683 ("Although the appli-
cation and interpretation of the AEDPA statute of limitations was
somewhat unsettled during this period, we think that such uncertainty
should have militated against taking an unnecessary risk by waiting
to file a . . . habeas petition.").
Moreover, unlike the majority, I do not believe that Rouse's legal
theories were plausible. Rouse first argues that, under North Carolina
Rule of Appellate Procedure 32(b), the North Carolina Supreme
Court's denial of certiorari did not become final until twenty days
after the denial was filed when the mandate issued. The majority finds
that "the inapplicability of Rule 32(b) is less than clear." Ante at 6.
As the majority notes, however, mandates do not issue after summary
denials of certiorari in North Carolina, and more importantly, Rouse
has submitted no evidence that any mandate issued in his case. See
ante at 6. Thus, Rule 32(b) clearly did not apply. Rouse also argues
29

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that the "mailbox rule" contained in Federal Rule of Civil Procedure
6(e) extended the time for filing his habeas petition. (Appellant's Br.
at 13-15.) The majority "[a]gain, . . . recognize[s] the facial plausibil-
ity of Rouse's theory." Ante at 7; see also ante at 7. I cannot agree
that this theory was plausible because Rule 6(e) clearly applies only
to parties in a federal proceeding and only when "a party has the right
or is required to do some act or take some proceedings within a pre-
scribed period after the service of a notice or other paper upon the
party." Fed. R. Civ. P. 6(e). Rouse was not a party to any federal pro-
ceeding during the running of the statute of limitations, and the
AEDPA statute of limitations runs from "the date on which the judg-
ment became final," 28 U.S.C.A. § 2244(d)(1)(A), not from the date
of the service of notice on the party. The tolling of the statute of limi-
tations while a properly filed application for state post-conviction
review is pending does not change the fact that the AEDPA limita-
tions period does not begin on the date of service of notice on a party.
Thus, even if I agreed that plausible misinterpretations justified equi-
table tolling, Rouse's theories were not plausible and do not justify
equitable tolling.
Finally, the majority contends that "[m]ost importantly, the strength
of the claims in a habeas petition obviously affects a court's decision
to exercise its equitable power to toll limitations." Ante at 16 (citing
Lonchar v. Thomas, 517 U.S. 314, 320, 322, 325 (1996)). But Lon-
char, a pre-AEDPA case, has nothing at all to do with equitable toll-
ing, and it certainly does not hold that we should consider the strength
of the claims in a habeas petition when deciding whether equitable
tolling is appropriate.12 To the extent that Lonchar informs the analy-
sis, however, it reinforces my belief that we should follow our equita-
ble tolling decisions that restrict equitable tolling to narrow
circumstances not present in this case. See Cantu-Tzin v. Johnson,
162 F.3d 295, 298 (5th Cir. 1998) ("[C]onfirmation that a statutory
limitations period should be enforced appears in the Supreme Court's
. . . decision in Lonchar v. Thomas . . . .").
____________________________________________________________
12 Contrary to the majority's assertion, ante at 16, Spencer v. Sutton
does not suggest that the strength of the claim in a habeas petition affects
the decision whether to equitably toll the limitations period.
30

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At issue in Lonchar was whether "the Court of Appeals properly
dismiss[ed] [a] first habeas petition for special ad hoc `equitable' rea-
sons not encompassed within the framework of [Habeas Corpus] Rule
9." Lonchar, 517 U.S. at 322. In concluding that the court of appeals
had erred, the Supreme Court stressed that "Congress and the framers
of the Rule" undertook a balancing of interests, "which courts may not
undermine through the exercise of background equitable powers." Id.
at 327 (emphasis added); see Cantu-Tzin, 162 F.3d at 298 ("The tenor
of the majority discussion in Lonchar is that federal courts should not
intervene to create equitable reasons for denying stays of execution
when federal law and the habeas rules have prescribed principles
applicable to the complex mix of equities in capital cases."). Here, no
less, by enacting the AEDPA, Congress has balanced the competing
interests — a balance embodied in section 2244(d), which provides
a one-year limitation period and explicitly specifies conditions under
which that period should be tolled. We may not amend that statute
"through . . . ad hoc judicial exception." Lonchar, 517 U.S. at 328.
While we have already held that equitable tolling applies to the
AEDPA when extraordinary circumstances beyond the petitioner's
control prevent him from filing a timely petition, see Harris, 209 F.3d
at 329-30, we must refrain from ad hoc alteration of the statutory
command. The doctrine of equitable tolling is not license to suspend
enactments of Congress whenever we happen to believe that enforce-
ment of a limitations period would create a hardship. See id. (caution-
ing that "any invocation of equity to relieve the strict application of
a statute of limitations must be guarded and infrequent, lest circum-
stances of individualized hardship supplant the rules of clearly drafted
statutes").
Even if I were to agree with the majority that the strength of the
claims in a petition should affect a court's decision to invoke equita-
ble tolling, Rouse's claims, which must be evaluated in light of the
deference that we statutorily are required to give to state court factual
findings and conclusions of law, are far from strong.13 See 28
____________________________________________________________
13 A "strong" or "compelling" claim, presumably, must mean one that
is at least likely to result in the granting of a writ. Although a court may
choose to only take a "quick look" at the constitutional claim in the peti-
tion in determining whether a COA should be granted, once the COA is
31

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U.S.C.A. §§ 2254(d) (directing that the writ should not be granted for
claims adjudicated in state court unless the "decision . . . was contrary
to, or involved an unreasonable application of, clearly established
Federal law"), 2254(e)(1) ("[A] determination of a factual issue made
by a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear
and convincing evidence."). The majority concludes that Rouse pre-
sents a "compelling" claim by relying on Rouse's allegations, see ante
at 11 ("Rouse presents what must be considered on its face a powerful
constitutional claim . . . ."), giving short shrift to the factual findings
of the state court that considered Rouse's motion for appropriate relief
(MAR) and the deference federal habeas courts owe to state courts,
see ante at 11-12 n.6.
The majority reports that after the trial, Rouse learned that the
mother of one of his jurors was murdered, and that"[w]hen all pro-
spective jurors were asked for such information at voir dire, the vic-
tim's son had remained silent." Ante at 3. Next, on the strength of
Rouse's bare allegations and the affidavit of a law student who spoke
with the juror four years after Rouse's trial ended, the majority states
that "this juror assertedly expressed intense racial prejudice against
African-Americans." Ante at 3; see also ante at 17 ("[T]he juror delib-
erately . . . hid[ ] . . . his contempt for all African-Americans.").
The majority does not provide the clear and convincing evidence
necessary for disturbing the State MAR court's specific finding that
the juror did not hear the question asked at voir dire about connec-
tions to victims of violent crimes. See North Carolina v. Rouse, No.
91-CRS-3316-17 (N.C. Super. Ct. Aug. 2, 1996) (unpublished) (MAR
Court) at 6-7, 15.14 Nor, of course, does the majority so much as
____________________________________________________________
granted and the appeal entertained, this "quick look" procedure no longer
applies. Thus, if the strength of a petitioner's claims is relevant to an
equitable tolling analysis, the strength of the claims must be evaluated in
light of the deference a court is required to give to state court factual
findings and conclusions of law.
14 Similarly, the majority notes that "this juror allegedly stated that he
had intentionally concealed his mother's tragic death and carefully
crafted his other responses to voir dire questions, because he wanted to
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allude to the State MAR court's finding that the juror "was questioned
extensively during voir dire about his views on race [ ] [and that] [h]is
responses unequivocally indicate that he was not biased toward mem-
bers of defendant's race." MAR Court at 16. Further, the majority
does not mention the State MAR Court's findings that the law student
affidavit does not indicate that the juror concealed information on voir
dire because the affidavit does not show that the juror was biased at
the time of the trial, and thus, that the law student affidavit is inadmis-
sible under N.C. Gen. Stat. § 8C-1, Rule 606(b) (2001). See MAR
Court at 17 (citing State v. Robinson, 443 S.E.2d 306, 330 (N.C. 1994)).15
Moreover, the majority does not and cannot show that the State
MAR court decision "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C.A. § 2254(d)(1).16 But
that is precisely what the majority must do to maintain that Rouse has
____________________________________________________________
be on the jury." Ante at 3. It is true, as the juror admitted in his own affi-
davit, that he did not volunteer information. But the State MAR court
found that the record did not support the contention that the juror "delib-
erately failed to answer honestly a material question on voir dire." See
North Carolina v. Rouse, No. 91-CRS-3316-17, 14-15 (N.C. Super. Ct.
Aug. 2, 1996) (unpublished) (internal quotation omitted).
15 I note here that I do not mean to intimate a cavalier attitude toward
racially biased jurors. Rather, I recognize that Rouse's attorneys had the
opportunity to, and in fact did, explore the jurors' racial biases during
voir dire. Where there is no evidence that the juror deliberately lied dur-
ing voir dire, the state MAR court held that North Carolina law does not
admit evidence of the juror's internal ideas and belief. See MAR Court
at 17; see also N.C. Gen. Stat. § 8C-1, Rule 606(b); State v. Robinson,
443 S.E.2d 306, 330 (N.C. 1994) ("This Court has unequivocally held
that `[a]llowing jurors to impeach their verdict by revealing their `ideas'
and `beliefs' influencing their verdict is not supported by case law, nor
is it sound public policy.'" (quoting State v. Quesinberry, 381 S.E.2d
681, 688 (N.C. 1989), sentence vacated on other grounds, 494 U.S. 1022
(1990))). Although the state evidentiary rule cannot serve as an adequate
basis for the court's decision if the state evidentiary rule is contrary to
the federal Constitution, see Doan v. Brigano, 237 F.3d 722, 728 (6th
Cir. 2001), I do not believe that the Constitution requires admission of
evidence that, four years after the juror was questioned on voir dire and
served on the jury, the juror is allegedly biased.
16 Certainly no Supreme Court case cited by the majority stands for the
proposition that relief is warranted on grounds of juror misconduct when
a potential juror, who has truthfully answered every question directly
asked of him, does not answer a question that he did not hear asked.
33

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presented a strong claim for relief; the district court would have had
to answer this question affirmatively in order to consider granting the
writ.
The majority cites Morgan v. Illinois, 504 U.S. 719, 728 (1992),
and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984), in support of its assertion that Rouse has advanced a strong
juror misconduct claim, but the state court decision was not contrary
to, or an unreasonable application of, these cases. Morgan dealt with
whether a trial court, conducting voir dire, may "refuse inquiry into
whether a potential juror would automatically impose the death pen-
alty upon conviction," 504 U.S. at 721; the Court held that it could
not, see id. at 735. In Rouse's case, the attorneys, rather than the
court, conducted voir dire, and nothing prevented them from under-
taking such inquiries.
In McDonough, the Court "h[eld] that to obtain a new trial [in light
of an honest though mistaken answer given by a juror during voir
dire], a party must first demonstrate that a juror failed to answer hon-
estly a material question on voir dire, and then further show that a
correct response would have provided a valid basis for a challenge for
cause." 464 U.S. at 556. As noted above, under the facts as found by
the State MAR court, it cannot be said that the juror "failed to answer
honestly." As to the second prong, after carefully analyzing the law,
including McDonough, see MAR Court at 9-14, the State MAR court
found that "[t]he record and the defendant's affidavits . . . demon-
strate" that the "mere disclosure by [the juror] of the fact that his
mother had been murdered in 1954 would not have been a valid basis
for a challenge for cause," id. at 15, 16. In light of actual Supreme
Court precedent and the facts as found by the State MAR court, it
strains credulity to conclude, as the majority does, that Rouse's claims
are strong.
Thus, I disagree with the majority's conclusion that a different
equitable tolling analysis should apply to this case because it is a capi-
tal case. Moreover, even were I to consider all of the factors that the
majority claims should affect the equitable tolling analysis in capital
cases, I would still affirm the district court's decision that equitable
tolling was inappropriate on the facts of this case.
34

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III.
Because Rouse has failed to show any extraordinary circumstances
external to his own conduct that would justify equitable tolling, I
would affirm the district court.
35

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