dissenting.

I concur in parts I, 11(A), and 11(B), but respectfully dissent as to part 11(C). There are two things wrong with tolling Gaston’s one year limitations period. First, he was not pursuing anything like the appellate exhaustion process contemplated by AEDPA, when he randomly filed petitions up, down and sideways in the California courts, instead of starting in a lower court and then going to a higher court. Second, his delays between petitions were too long to justify counting non-pending petitions as pending for AEDPA purposes.

Gaston started in the middle, at the California Court of Appeal, went down to the Superior Court, and then jumped up to the Supreme Court. Then he went through a complete second round. That is not the proper course of exhaustion that justifies tolling.

Carey v. Saffold allows tolling for the “intervals between a lower court decision and the filing of a new petition in a higher court.” 1 That’s not what Gaston did. In Saffold, the Supreme Court recognized that a petitioner must “ ‘invok[e] one complete round of the State’s established appellate review process’ ” 2 to exhaust his claim. This general principle presented a problem because of California’s peculiar system. of using original writs to obtain appellate review, because if the time between pétitions were not tolled, the exhaustion requirement of AEDPA would conflict with the statute of limitations in AEDPA. The Court solved the problem by noting that “typically a prisoner will seek habeas review in a lower court and later seek appellate review in a higher court,” 3 so “California’s collateral review process functions very much like that of other states, but for the fact that its timeliness rule is indeterminate.” 4 The Court determined. that California’s system was enough like other states’ procedures “to bring intervals between a lower court decision and a filing of a new petition in a higher court within the scope of the statutory word ‘pending.’ ” 5

The ‘‘intervals between a lower court decision and a filing of a new petition in a higher court,” which are the only intervals deemed “pending” for AEDPA purposes under Saffold can’t save Gaston’s petition because that’s not direction he went. No tolling after his second petition can be justified because the analogy to the usual appellate ladder, set out in Saffold, no longer held: 'The intervals between petitions were no longer what Saffold justifies as “intervals between a lower court decision and the filing of a new petition in a higher court.” 6

Because Gaston was not pursuing anything like the uphill appellate process contemplated in Saffold when he petitioned the' Superior Court after petitioning the Court of Appeal, no application was pending in this case between the first two filings. The clock began running when *1020 AEDPA became effective, April 24, 1996. At that time Gaston’s first petition had already been denied by the California Court of Appeal. His next petition, because he went down the ladder instead of up, did not toll the statute of limitations at all. So the limitations period ran out in April of 1997, a year after AEDPA became effective. At that time he had not filed his third petition, which was the first of his two petitions to the California Supreme Court.

Even if this were not the end of the matter (which I think it is), the time intervals between Gaston’s petitions are still too long for Saffold and for our en banc decision in Welch v. Carey. 7 The majority takes the view that Gaston’s 307 day and 282 day intervals, when he had nothing pending anywhere, should nevertheless toll the statute of limitations because they are “far less than the four-year interval held to have been too long in Welch.” 8 But Saf-fold and Welch cannot be read to mean that anything less than four years is permissible. In Saffold the Supreme Court suggested, in dictum, that the Ninth Circuit’s panel decision in Welch, before we reheard Welch en banc, allowing the four-year delay, was erroneous. 9 The Court held that, even where the state court reached the merits rather than dismissing a petition as untimely, we could not treat that as implying a state determination of timeliness. 10

Nor did the Court in Saffold simply approve the four-and-a-half month delay (much shorter than Gaston’s). Instead, it remanded because it was possible that a special circumstance existed, since Saffold was not notified of the Court of Appeal decision, and filed his petition in the California Supreme Court “within days after receiving notification.” 11 And our unanimous en banc decision in Welch, far from suggesting that anything less than four years was permissible, held that four years was impermissible because “Congress and the courts appropriately built slack into the process by providing a reasonable grace period for pending applications, not for open-ended and unjustified delay in pursuing claims and relief.” 12 Our contrast was with another case where a claim was “pursued up the appropriate ladder and where the petitioner waited no more than six weeks between filing each petition.” 13 307 and 282 days exceed a “reasonable grace period.” Legal deadlines are usually on the order of 7,10, 30, and 60 days.

The point of the play in the joints allowed by Saffold and Welch is to fold California’s unusual procedure into something akin to an ordinary state appellate exhaustion process, with the exception, as the Court noted in Saffold, that instead of the usual fixed and rigid period for filing-notice of appeal, California allows a reasonable time to take a claim “up the ladder” to the next higher court. Expanding this to a petitioner who goes down the ladder instead of up, and who waits the better part of a year between filings, makes a mockery of the statute of limitations that Congress has imposed.

. Carey v. Saffold, 536 U.S. 214, 223 , 122 S.Ct. 2134 , 153 L.Ed.2d 260 (2002).

. Saffold, 536 U.S. at 220 , 122 S.Ct. 2134 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999)).

. Id. at 222 , 122 S.Ct. 2134 .

. Id.

. Id. at 223 , 122 S.Ct. 2134 .

. Saffold, 536 U.S. at 223 , 122 S.Ct. 2134 .

. Welch v. Carey, 350 F.3d 1079 (2003) (en banc).

. Majority Op. at 1018.

. Saffold, 536 U.S. at 226 , 122 S.Ct. 2134 .

. Id. at 225-26 , 122 S.Ct. 2134 .

. Id. at 226 , 122 S.Ct. 2134 .

. Welch, 350 F.3d at 1083 .

. Id. at 1084 (contrasting the factual circumstances in Nino v. Galaza, 183 F.3d 1003 (9th Cir.1999)).