Elvik

dissenting:

Even were we to assume that the failure of Elvik’s state habeas lawyer to inform him of the Nevada Supreme Court’s final action constitutes an “extraordinary circumstance” for equitable tolling purposes, he offers no explanation how this circumstance “caused” the untimeliness of his federal filing or otherwise made it “impossible” for him to file a timely federal petition during or after the three years his limitation period was statutorily tolled. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006) (to receive equitable tolling, a petitioner must show that extraordinary circumstances “ma[d]e it impossible to file a petition on time” and the “extraordinary circumstances ... cause[d] ... [the] untimeliness” (internal quotations omitted)). Nothing prevented Elvik from retaining federal habeas counsel and taking the steps necessary to comply with AEDPA’s one-year filing requirement either during the eighteen months after his state habeas petition was submitted for decision or the 130 days after he received notice of final action by the Nevada Supreme Court.

The district court’s conclusion that Elvik failed to meet the “very high” threshold for equitable tolling should…

MEMORANDUM *

Peter Elvik appeals the district court’s order dismissing his federal habeas corpus petition, filed pursuant to 28 U.S.C. § 2254 , as untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we reverse and remand.

“A litigant seeking equitable tolling of the one-year AEDPA limitations period bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005)) (internal quotation marks and edits omitted). “[Wjhere an attorney’s misconduct is sufficiently egregious, it may constitute an ‘extraordinary circumstance’ warranting equitable tolling of AEDPA’s statute of limitations.” Spit *628 syn v. Moore, 345 F.3d 796, 800 (9th Cir.2003) (citing Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir.2003)).

Elvik is entitled to equitable tolling based on the ineffective assistance of the attorney who represented him during his state post-conviction proceedings.…