dissenting:

The district court improperly dismissed petitioner’s second federal habeas petition without offering him an opportunity to amend the petition. This error did not cause petitioner to file his third habeas petition after AEDPA’s statute of limitations had run. It was petitioner’s own doing that caused the late filing.

*820 Petitioner is not entitled to equitable tolling. The opinion of the Ninth Circuit filed today refuses to apply clearly established principles announced by the Supreme Court.

I would affirm the district court.

I

A federal habeas petitioner is required to fully exhaust the claims supporting the federal petition in state court before a federal district court can potentially grant the petition. 1 28 U.S.C. § 2254 (b)(1)(A). Prisoners may fail to present a fully exhausted federal habeas petition on their first attempt, necessitating a return to state court. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir.2002).

Prisoner James Edward Smith (“Smith”) made three attempts to file a fully exhausted petition over a two and a half year period. Five of the seven claims in Smith’s first federal petition were unex-hausted. The district court dismissed this first federal petition and specifically advised Smith which claims he needed to present to the California Supreme Court. Smith exhausted only four of the five unex-hausted claims and resubmitted all five previously unexhausted claims in a second federal petition.

The district court dismissed Smith’s second federal petition for failure to exhaust one of his claims. Smith returned to state court to exhaust the remaining unexhaust-ed claim. Eleven months after the AED-PA statute of limitations ran, Smith filed a third federal habeas petition. 2 The district court rejected Smith’s argument that the filing date of the third federal petition for tolling purposes related back to the date of filing the first or second federal petition. The district court dismissed the third petition as time-barred. Smith appealed the dismissal of his third federal petition, and his appeal is now before us.

II

Smith argues that he is entitled to equitable tolling because the district court erroneously dismissed his mixed second petition without allowing Smith to strike the unexhausted claim. The opinion of the court agrees and holds that the district court’s improper dismissal of Smith’s second federal petition caused the untimely filing of his third federal petition. I disagree.

A

AEDPA imposes a one-year statute of limitations on the filing of all habeas corpus petitions. See 28 U.S.C. § 2244 (d)(1). This rule “serves the well-recognized interest in the finality of state court judgments” and “reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.” Duncan v. Walker, 533 U.S. 167, 179 , 121 S.Ct. 2120 , 150 L.Ed.2d 251 (2001). We are required to enforce AEDPA’s statute of limitations absent some legitimate reason to do otherwise.

Equitable tolling may be considered under limited circumstances. Equitable tolling is permitted only “if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (citation omitted). Equitable tolling is applied “sparingly,” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, *821 96 , 111 S.Ct. 453 , 112 L.Ed.2d 435 (1990), and requires surmounting a “high hurdle.” Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997) overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998). Equitable tolling “will not be available in most cases.” Beeler, 128 F.3d at 1288 . Equitable tolling is not even a possibility until a petitioner submits proof that external forces, and not a petitioner’s lack of diligence, accounted for the failure to file a timely petition. Miles, 187 F.3d at 1107 . The equitable tolling inquiry measures both proximate cause and proportional relief principles. See Fail v. Hubbard, 315 F.3d 1059, 1062 (9th Cir.2002) (holding that petitioner, who continued to press a petition with unexhausted claims that was eventually dismissed, was not entitled to equitable tolling because petitioner caused the untimeliness problem); Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir.2002) (holding that equitable tolling “is appropriate only during the delay caused by the extraordinary circumstances” and applying proportional relief principles).

Smith seeks equitable tolling to sustain a determination that his third federal petition was timely filed. He has not shown that extraordinary circumstances beyond his control caused him to file the third petition late. The opinion of the court, in holding otherwise, fails to adhere to the causation and proportional relief principles required in equitable tolling cases.

B

No external forces caused Smith to make three attempts before filing a fully exhausted federal habeas petition. Smith bears sole responsibility for submitting the second of his mixed petitions.

When Smith’s first petition was dismissed, the district court advised Smith which claims needed to be exhausted. Despite the aid of explicit instructions, Smith submitted only four of the five unexhaust-ed claims to the California Supreme Court. By presenting a second federal petition containing a previously dismissed, yet still unexhausted, claim, Smith chose to press a mixed petition with awareness of the possible consequences. Smith’s pro se status is no excuse for failing to present a fully exhausted federal habeas petition in these circumstances.

We faced a similar situation in Fail v. Hubbard and held that equitable tolling did not apply. 315 F.3d at 1062 . In Fail , the petitioner was given leave to amend after the district court dismissed the petition because the petition contained unex-hausted claims. Id. at 1060 . The petitioner then deleted some of the unexhausted claims, but not all of them. Id. at 1061 . Following this amendment, the district court dismissed the petition, doing so after AEDPA’s statute of limitations expired. Id. We refused to grant equitable tolling in Fail , because “[b]y continuing to press his petition of entirely unexhausted claims after the district court informed him that he could only bring claims first brought in state court, Fail was the cause of the delay that ultimately made his petition untimely.” Id. at 1062 . Similar reasoning applies to Smith’s actions in pressing his second mixed petition after the district court informed Smith what he needed to do to fix the deficiencies in his first petition.

C

Smith’s conduct is the ultimate reason his claims are time-barred. There would have been no exhaustion issue in the second petition — and no “erroneous” dismissal — if Smith had simply followed the district court’s instructions following dismissal of the first petition. The court’s *822 opinion speculates that Smith would have preserved his claims if the district court had done things differently. The court’s opinion suggests a number of things that the district court should have done. These proposals fail to alter the equitable balance in this case.

The court’s opinion first focuses on the district court’s failure to tell Smith that he could amend his second petition rather than face dismissal after the court found the second petition contained unexhausted claims. Assuming the district court had told Smith that he could amend his second petition, there is no reason to believe that Smith would have taken advantage of this opportunity.

In dismissing the first petition, the district court informed Smith that he could either immediately refile his complaint without the unexhausted claims or he could take the unexhausted claims to state court and file another petition afterward. Smith chose to go back to state court.

Smith also went back to state court when the district court gave him the same choice between resubmission or further exhaustion after dismissing the second petition. 3 It should be noted that Smith knew how to amend his petition; the petition the district court dismissed was Smith’s “Second Amended Petition.” In the face of this history, it is pure speculation to believe that Smith would have opted to amend his petition to delete the unexhaust-ed claim even if the district court had given him yet another opportunity to amend before dismissing the petition.

The opinion of the court then suggests that the real problem in this case was the district court’s failure to inform Smith that any future federal habeas petition would or could be time-barred at the time Smith’s second petition was dismissed. It is difficult to discern how the district court could have been expected to realize that there was a statute of limitations problem. At the time Smith’s second petition was dismissed in 1997, it was still an open question in this circuit whether the time during which a habeas petition was pending in federal court was statutorily tolled.

The Supreme Court did not resolve the circuit split on this issue until June 18, 2001. See Duncan v. Walker, 533 U.S. at 171-72 , 121 S.Ct. 2120 . It is an exercise in hindsight to fault the district court for failing to anticipate the development of the law on an issue that was not briefed or presented to the district court. Similar considerations apply to the opinion’s treatment of the district court’s failure to advise Smith of the withdrawal and abeyance procedure; a procedure we did not endorse until after Smith’s second petition was dismissed. See Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981 , 986-88 (9th Cir.1998). Even if the district court’s failure to anticipate these later developments was error, see Ford v. Hubbard, 305 F.3d 875, 886-87 (9th Cir.2002), they do not justify equitable tolling because Smith’s meandering to and from state court following the district court’s dismissal of his second petition constitutes unreasonable delay. See Ford, 305 F.3d at 888 n. 12 (basing relief from statute of limitations in part on petitioner’s prompt effort in going to and returning from state court following initial dismissal).

The district court’s (1) failure to allow Smith to amend his petition, (2) failure to warn Smith of the looming statute of limi *823 tations, and (3) failure to advise Smith of the withdrawal and abeyance procedure do not entitle Smith to equitable tolling on the facts of this case.

D

The opinion of the court focuses on the district court’s perceived errors and ignores Smith’s role in creating his statute of limitations problem. In addition to Smith’s persistence in bringing unexhaust-ed claims, the statute of limitations would not have barred Smith’s petition if Smith had not, in the face of AEDPA’s statute of limitations, waited over four months after the California Supreme Court denied his July 1996 state petition before filing his second federal petition. 4 If Smith had moved promptly in returning to federal court, i.e. within 30 days, he still would have had 19 days left on the statute of limitations after the district court’s dismissal of the second petition. 5 See Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.2001), ce rt. denied, 534 U.S. 1015 , 122 S.Ct. 506 , 151 L.Ed.2d 415 (2001) (characterizing 30 days as a reasonable interval of time for returning to federal court following exhaustion). Even these calculations do not fully reflect Smith’s lack of diligence because they do not incorporate the additional 140 days that lapsed while Smith amended his second federal petition to address other deficiencies. 6

Finally, the opinion of the court ignores the 109 days (excluding potentially tolled time) that Smith spent going to and returning from state court following dismissal of the second petition. This delay is unreasonable, particularly given the extra 30 days of tolling Smith would be entitled to after the California Supreme Court’s rejection of his last state petition if the statute of limitations had not already run. 7

*824 Smith’s lack of diligence lies at the root of his statute of limitations problem. Smith is directly responsible for at least 421 days of the delay between the starting of the statute of limitations and Smith’s filing of his third federal petition. 8 Cumulatively, Smith’s role in the untimely filing of his third petition makes equitable toiling inappropriate.

E

In another situation where a pro se party failed to follow explicit instructions as to how to preserve a claim, the Supreme Court held:

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 , 104 S.Ct. 1723 , 80 L.Ed.2d 196 (1984). The same principle applies here, as does the Supreme Court’s admonition that “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin County, 466 U.S. at 152 , 104 S.Ct. 1723 ; see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 , 122 S.Ct. 2061, 2072 , 153 L.Ed.2d 106 (2002) (quoting Baldwin County).

F

The record in this case establishes that: (1) Smith knew the claims he needed to exhaust after the first petition was dismissed, but did not immediately proceed to exhaust all of these claims; (2) Smith used up over three months of the limitations period before filing his second petition; (3) Smith used up another four months of the limitations period fixing deficiencies in his second petition; (4) Smith failed to request another opportunity to amend his petition even after he knew his second petition was subject to dismissal, and then (5) Smith unreasonably took his time going to and returning from state court following dismissal of his second petition. Smith is not entitled to equitable tolling for his third petition. The conduct of proceedings in the district court are insufficient to shift responsibility for the untimely third federal petition from Smith’s shoulders.

Ill

In its zeal to modify the district court’s judgment dismissing Smith’s second federal petition, the court’s opinion wrongly applies equitable tolling and overlooks the facts demonstrating that Smith’s own actions and lack of diligence caused the untimely filing of his third federal petition. Equitable tolling principles need not be applied to cure Smith’s neglect.

I respectfully dissent.

. A district court has the option of denying a petition containing unexhausted claims on the merits. 28 U.S.C. § 2254 (b)(2).

. The statute of limitations expired on August 13, 1997.

. If Smith had opted to immediately resubmit another petition with the unexhausted claim deleted we would be facing a very different situation. See Anthony v. Cambra, 236 F.3d 568, 571 , 574 & n. 1 (9th Cir.2000), cert. denied, 533 U.S. 941 , 121 S.Ct. 2576 , 150 L.Ed.2d 739 (2001). But that is not our case.

. During the first 30 days following the California Supreme Court's denial of Smith's state habeas petition, the statute of limitations was statutorily tolled. See Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001). Smith filed his second federal petition 101 days after this thirty-day "grace” period expired and 131 days after the California Supreme Court's ruling.

. Smith had 294 days left on the statute of limitations when the California Supreme Court dismissed his July 1996 state petition. Smith’s second federal petition was pending before the district court for 275 days. This is about average for a habeas petition dismissed on procedural grounds. See Duncan, 533 U.S. at 186 , 121 S.Ct. 2120 (Breyer, J., dissenting) (on average district courts take 268 days to dismiss petitions on procedural grounds, nearly half of these petitions are pending in district court for six months or longer).

. The court's opinion holds that the entire time the petition was pending is subject to equitable tolling, relying on Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001). This rote application of Tillema is inconsistent with the fact-intensive nature of equitable tolling, see Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc), and the holding in Corjasso, 278 F.3d at 878-79 , which only excludes the period of time during the pendency of a federal petition that is attributable to "extraordinary circumstances." In Tillema there is no indication that the petitioner had any fault in the failure to comply with AEDPA’s statute of limitations. That cannot be said in this case.

.See Palmer v. Carlton, 276 F.3d 777, 781-82 (6th Cir.2002) (refusing to use equitable tolling where petitioner took more than two months to return to federal court); Bunney, 262 F.3d at 974 (holding that habeas petitioners are entitled to an additional 30 days tolling following dismissal of their state petitions by the California Supreme Court); see also Zarvela, 254 F.3d at 381 (characterizing 30 days as "reasonable” time for each leg of trip to and from state court); Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir.2003) (stating that 30 days to return to federal court "seems reasonable"); Ford v. Hubbard, 305 F.3d 875 , 888 n. 12 (9th Cir.2001) (endorsing test of "reasonable” time announced in Zarvela).

. This figure represents the 71 days of the limitations period that elapsed before Smith filed his July 1996 state petition, supra at n. 3, the 101 further days that elapsed before Smith filed his second federal petition, the 140 days of delay attributable to Smith during the pendency of the second petition, and the 109 days during which the limitations clock was running following dismissal of Smith's second petition before he filed his third federal petition.