Rudin

Concurrence by Judge ADELMAN.

Dissent by Judge O’SCANNLAIN.

ORDER AND OPINION

ORDER

The opinion filed on September 10, 2014, and appearing at 766 F.3d 1161 , is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file additional petitions for rehearing or rehearing en banc.

OPINION

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year period of limitation within which an individual seeking relief must file an application for a writ of habeas corpus. See 28 U.S.C. § 2244 (d)(1). Once that one-year period begins to run, it may be tolled only in certain circumstances. See id. § 2244(d)(2) (providing for statutory tolling); Holland v. Florida, 560 U.S. 631, 634 , 130 S.Ct. 2549 , 177 L.Ed.2d 130 (2010) (providing for equitable tolling). The question this case presents is whether Petitioner Margaret Rudin is entitled to statutory or equitable tolling of the AEDPA limitations period, excusing her six-year delay in filing her application. We conclude that she is entitled to equitable tolling sufficient to excuse her delay. We therefore reverse the district court’s order dismissing Rudiris application as…

concurring:

I join the court’s opinion in full. I add only that a contrary result would require “the essentially pointless early filing of federal petitions,” Brooks v. Williams, No. 2:10-cv-00045, 2011 WL 1457739 , at *4 (D.Nev. Apr. 14, 2011), by prisoners who reasonably believe that their claims are properly pending, unexhausted, in state courts. See Gibbs v. Legrand, 767 F.3d *1060 879, 890-91 (9th Cir.2014); see also Pace v. DiGuglielmo, 544 U.S. 408, 416 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005) (indicating that a prisoner’s “reasonable confusion about whether a state filing would be timely” will ordinarily constitute good cause for a protective federal petition).

Requiring a protective filing would be particularly pointless in this case. By August 2007, the federal habeas statute of limitations had long since run. Unlike in Pace , where the prisoner could have filed a protective petition during the state post-conviction proceedings but before the federal statute ran, in the present case any protective petition Rudin might have filed after August 2007 would not have protected anything. See, e.g., Urrizaga v. Attorney General for Idaho, No. CV-07-434, 2008 WL 1701735 , at…