FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANTHONY BERNARD SMITH, JR., No. 17-15874 Petitioner-Appellant, D.C. No. v. 2:15-cv-01785- JAM-AC RON DAVIS, Respondent-Appellee. OPINION Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Argued and Submitted En Banc September 24, 2019 San Francisco, California Filed March 20, 2020 Before: Sidney R. Thomas, Chief Judge, and Ronald M. Gould, Marsha S. Berzon, Johnnie B. Rawlinson, Carlos T. Bea, Sandra S. Ikuta, Mary H. Murguia, Paul J. Watford, Andrew D. Hurwitz, Mark J. Bennett and Ryan D. Nelson, Circuit Judges. Opinion by Judge Bea; Dissent by Judge Berzon 2 SMITH V. DAVIS SUMMARY * Habeas Corpus The en banc court affirmed the district court’s denial of California state prisoner Anthony Smith’s habeas corpus petition as untimely, in a case in which Smith argued that he was entitled to extend the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1) by equitable tolling for the 66 days between the date his conviction became final in the state appellate court and the date when his attorney informed him of that unsuccessful appeal and provided him with the state appellate record. The en banc court affirmed because Smith failed to exercise reasonable diligence during the 10 months available after he received his record from his attorney and before the time allowed by the statute of limitations expired. In view of the historic practice of courts of equity and modern Supreme Court precedent governing equitable tolling, the en banc court made two related holdings. First, for a litigant to demonstrate he has been pursuing his rights diligently, and thus satisfies the first element required for equitable tolling, he must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court. In so holding, the en banc court rejected the “stop-clock” approach under * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SMITH V. DAVIS 3 which whenever a petitioner is impeded from filing his petition by extraordinary circumstances while the time period of a statute of limitations is running out, he may add the time during which he was so impeded to extend the limitations period, regardless whether he was reasonably diligent in filing his petition after the impediment was removed. Second, it is only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing that equitable tolling may be the proper remedy. In evaluating whether an extraordinary circumstance stood in a petitioner’s way and prevented timely filing, a court is not bound by mechanical rules and must decide the issue based on all the circumstances of the case before it. Applying this framework to Smith’s petition, the en banc ...
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