Willie Grant v. Gary Swarthout , 862 F.3d 914 ( 2017 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    WILLIE ULYSESS GRANT,                     No. 13-55584
    Petitioner-Appellant,
    D.C. No.
    v.                        3:11-cv-03015-
    JAH-JMA
    GARY SWARTHOUT, Warden;
    XAVIER BECERRA, Attorney General,
    Respondents-Appellees.           OPINION
    Appeal from the United States District Court
    for the Southern District of California
    John A. Houston, District Judge, Presiding
    Argued and Submitted December 6, 2016
    Pasadena, California
    Filed July 7, 2017
    Before: Stephen Reinhardt, A. Wallace Tashima,
    and Richard A. Paez, Circuit Judges.
    Opinion by Judge Reinhardt
    2                     GRANT V. SWARTHOUT
    SUMMARY*
    Habeas Corpus
    The panel reversed the district court’s order dismissing as
    untimely California state prisoner Willie Ulysses Grant’s
    federal habeas corpus petition, and remanded for further
    proceedings, in a case involving a prisoner’s right to equitable
    tolling for the period during which he was prevented from
    completing his federal habeas petition by an extraordinary
    circumstance.
    The panel held that a petitioner is entitled to use the full
    one-year statute-of-limitations period for the filing of his state
    and federal habeas petitions and that he need not anticipate
    the occurrence of circumstances that would otherwise deprive
    him of the full 365 days that Congress afforded him for the
    preparation and filing of his petitions. The panel therefore
    held that it was improper for the district court to fault the
    petitioner for filing his state petition for postconviction relief
    late in the statute-of-limitations period in reliance on his
    having a full year to file both his state and federal petitions,
    as promised by AEDPA.
    The panel held that Grant exercised reasonable diligence
    during the 20-odd day duration of an extraordinary
    circumstance, where he requested from the prison trust office,
    on the day he received notice of the California Supreme
    Court’s denial of his state postconviction petition, the prison
    account certificate required to file a federal habeas petition in
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    GRANT V. SWARTHOUT                        3
    forma pauperis and filed a second request when he did not
    hear back from prison officials for two weeks. Because it is
    obvious that Grant was diligent after he received the prison
    account certificate, the panel did not resolve whether a
    petitioner needs to prove that he was diligent after the
    extraordinary circumstance has ended.
    The panel disagreed with the state that Grant did not
    experience an extraordinary circumstance sufficient to justify
    tolling. The panel wrote that where a prisoner is dependent
    on prison officials to complete a task necessary to file a
    federal habeas petition and the staff fails to do so promptly,
    this constitutes an extraordinary circumstance.
    The panel concluded that Grant is entitled to equitable
    tolling from the time he requested the prison account
    certificate until he received the certificate, and that his
    petition was therefore timely.
    COUNSEL
    Tony Faryar Farmani (argued), Farmani APLC, San Diego,
    California, for Petitioner-Appellant.
    Kevin Vienna (argued) and Mathew Mulford, Deputy
    Attorneys General; Julie L. Garland, Senior Assistant
    Attorney General; Office of the Attorney General, San Diego,
    California; for Respondents-Appellees.
    4                  GRANT V. SWARTHOUT
    OPINION
    REINHARDT, Circuit Judge:
    This case involves a prisoner’s right to equitable tolling
    for the period during which he was prevented from
    completing his federal petition for habeas corpus by an
    “extraordinary circumstance.” If equitable tolling applies, his
    habeas petition is timely. If it doesn’t, he will likely spend
    the rest of his life in prison.
    FACTS
    Willie Ulysess Grant was found guilty of committing
    first-degree murder, including an enhancement for personally
    using a firearm in the commission of the crime, on December
    14, 2006. He was sentenced to two consecutive terms of
    twenty-five years to life. The California Court of Appeal
    affirmed his sentence on September 16, 2008. The California
    Supreme Court denied his petition for review on December
    10, 2008. Grant timely filed a petition for certiorari, which
    was denied by the U.S. Supreme Court on October 5, 2009.
    On that date, the one-year statute of limitations for filing a
    federal habeas petition under the Antiterrorism and Effective
    Death Penalty Act of 1996 (“AEDPA”) began to run.
    28 U.S.C. § 2244(d)(1). Grant was also required to file any
    petition for state collateral review within that one-year period,
    but the running of the period was statutorily tolled while the
    state courts were actively processing his petitions.
    On September 25, 2010, 354 days after his petition for
    certiorari was denied, Grant constructively filed a pro se
    petition for state postconviction relief with the San Diego
    County Superior Court. This filing commenced the statutory
    GRANT V. SWARTHOUT                                 5
    tolling of the AEDPA statute of limitations. 
    Id. § 2244(d)(2).
    Grant’s state postconviction relief efforts continued until
    November 16, 2011, when the California Supreme Court
    denied his state habeas petition. This decision ended the
    period of statutory tolling.1
    Grant received notice that his state petition had been
    denied five days later, on November 21, 2011. At that time,
    there were seven days remaining in Grant’s one-year filing
    period under AEDPA.2 Grant then “immediately requested
    a ‘prison account certificate’ from the prison trust office,” on
    November 21. This certificate was required in order to file a
    federal habeas petition in forma pauperis. See Rules
    Governing Section 2254 Cases in the United States District
    Courts, R. 3(a)(2) (requiring a motion, affidavit, and
    “certificate from the warden or other appropriate officer of
    the place of confinement showing the amount of money” in
    the petitioner’s prison account in order to proceed in forma
    pauperis). The certificate was issued to Grant’s correction
    counselor on December 2, 2011. According to Grant, this
    delay “was because of the Thanksgiving holiday weekend.”
    Grant finally received the certificate from his counselor on
    1
    Neither party disputes that the entire period from September 25,
    2010 to November 16, 2011 was tolled by statute.
    2
    Because November 27, 2011 fell on a Sunday, Grant’s petition was
    actually due the next day, November 28, 2011. See Fed. R. Civ. P.
    6(a)(1)(C) (“[I]f the last day [of a filing deadline] is a Saturday, Sunday,
    or legal holiday, the period continues to run until the end of the next day
    that is not a Saturday, Sunday, or legal holiday.”). Grant therefore had
    seven days remaining although this gave him a 366-day period in which
    to file.
    6                      GRANT V. SWARTHOUT
    December 19.3 Grant constructively filed his federal pro se
    petition for a writ of habeas corpus on that same day. Along
    with his petition, he filed the required declaration and prison
    certificate to proceed in forma pauperis. The state moved to
    dismiss the petition, arguing that it was untimely under
    AEDPA’s one-year statute of limitations. Grant contends that
    the period of time between November 21, when he requested
    the prison account certificate, and December 19, the date on
    which he received it, was equitably tolled. If he is correct, his
    federal habeas petition was timely filed.
    The district court adopted the report and recommendation
    of the magistrate judge, which recommended that the petition
    be dismissed as untimely. It held that Grant was not entitled
    to equitable tolling because he had not shown that he was
    diligent throughout the entire 354 days prior to his filing of
    his state petition for postconviction relief and that such a
    showing was necessary to warrant equitable tolling.4
    3
    The date on which Grant received the certificate was disputed
    below, with Grant asserting that he received it on December 19 and the
    state arguing that he received it on December 2. However, the state did
    not argue in its briefs on appeal that Grant received his prison account
    certificate on December 2, and it represented at oral argument that it was
    not disputing that Grant received the prison account certificate on
    December 19. Therefore, we accept as true Grant’s assertion that he
    received the prison account certificate on December 19.
    4
    Grant argued both before the district court and before this court that
    he was entitled to additional equitable tolling during some other portions
    of either the period before he filed his state petition for postconviction
    relief or the period after his state petition was denied. The district court
    made determinations specific to each of Grant’s other arguments in
    concluding that he was not entitled to equitable tolling. Because we
    conclude that Grant is entitled to equitable tolling for the period during
    which he waited to receive his prison account certificate from prison
    GRANT V. SWARTHOUT                                7
    DISCUSSION
    Under AEDPA, state prisoners have a one-year statutory
    period to file a federal application for writ of habeas corpus.
    28 U.S.C. § 2244(d)(1). This period is in effect a statute of
    limitations that commences on the latest of four dates
    designated by statute:
    (A) the date on which the judgment became
    final by the conclusion of direct review or the
    expiration of the time for seeking such
    review;
    (B) the date on which the impediment to filing
    an application created by State action in
    violation of the Constitution or laws of the
    United States is removed, if the applicant was
    prevented from filing by such State action;
    (C) the date on which the constitutional right
    asserted was initially recognized by the
    Supreme Court, if the right has been newly
    recognized by the Supreme Court and made
    retroactively applicable to cases on collateral
    review; or
    (D) the date on which the factual predicate of
    the claim or claims presented could have been
    discovered through the exercise of due
    diligence.
    officials, and his federal habeas petition was therefore timely, we do not
    reach any of these additional claims.
    8                  GRANT V. SWARTHOUT
    
    Id. Here, the
    applicable period commenced as provided in
    paragraph (A). The statutory period is tolled (“statutory
    tolling”) while the prisoner pursues state postconviction
    relief. Specifically, the one-year statute of limitations is
    statutorily tolled from the time a state collateral challenge is
    filed until the state postconviction proceedings are final. See
    Roy v. Lampert, 
    465 F.3d 964
    , 968 (9th Cir. 2006). The
    statute of limitations is not tolled, however, “from the time a
    final decision is issued on direct state appeal [to] the time the
    first state collateral challenge is filed.” 
    Id. (alteration in
    original) (citation omitted).
    It is well established that a prisoner who files his federal
    petition for writ of habeas corpus after AEDPA’s one-year
    statute of limitations has expired may be entitled to equitable
    tolling. Florida v. Holland, 
    560 U.S. 631
    , 649 (2010). If a
    prisoner can demonstrate that he is entitled to equitable
    tolling for a certain period of time, that period will be
    subtracted from the total number of days that have passed. If,
    after those days are subtracted, less than 365 days have
    passed, the prisoner’s petition for habeas corpus will be
    accepted as timely. The grounds for equitable tolling “are
    highly fact-dependent.” Sossa v. Diaz, 
    729 F.3d 1225
    , 1237
    (9th Cir. 2013) (citation omitted). They do require, however,
    the occurrence of what we label an “extraordinary
    circumstance.” Miles v. Prunty, 
    187 F.3d 1104
    , (9th Cir.
    1999) (“We will permit equitable tolling of AEDPA’s
    limitations period ‘only if extraordinary circumstances
    beyond a prisoner’s control make it impossible to file a
    petition on time.’” (quoting Calderon v. U.S. Dist. Court,
    
    163 F.3d 530
    , 541 (9th Cir. 1998))). We have said, however,
    that we do not require actual impossibility; rather, equitable
    tolling is appropriate where “it would have technically been
    possible for a prisoner to file a petition, but a prisoner would
    GRANT V. SWARTHOUT                         9
    have likely been unable to do so.” Gibbs v. Legrand,
    
    767 F.3d 879
    , 888 (9th Cir. 2014) (quoting Harris v. Carter,
    
    515 F.3d 1051
    , 1054 n.5 (9th Cir. 2008)). “At bottom, the
    purpose of equitable tolling is to ‘soften the harsh impact of
    technical rules which might otherwise prevent a good faith
    litigant from having [her] day in court.’” Rudin v. Myles,
    
    781 F.3d 1043
    , 1055 (9th Cir. 2014) (alteration in original)
    (citation omitted).
    I.
    A.
    The specific question in this case is whether, when a
    petitioner would otherwise be able to file a timely petition for
    federal habeas corpus but an extraordinary circumstance
    occurs that prevents timely filing, the court may deny
    equitable tolling solely because it believes that by scheduling
    his work differently prior to the unanticipated occurrence, the
    petitioner would have been able to file his federal petition
    earlier, specifically within in the one-year statute-of-
    limitations period. Put differently, the question is whether
    equitable tolling may be denied because a court decides that
    the prisoner acted unreasonably by failing to work diligently
    on his case throughout the entire portion of the one-year
    statute-of-limitations period that preceded the occurrence of
    the “extraordinary circumstance”?
    The seminal case on this issue is Valverde v. Stinson,
    
    224 F.3d 129
    (2d Cir. 2000). In that case, the Second Circuit
    held that a federal habeas petitioner was “not ineligible for
    equitable tolling simply because he waited until late in the
    limitations period to file his habeas petition.” 
    Id. at 136.
    The
    court explained that a petitioner “would have acted
    10                  GRANT V. SWARTHOUT
    reasonably by filing his petition any time during the
    applicable one-year period of limitations.” 
    Id. (emphasis added).
    It then reasoned that a petitioner “should not be
    faulted . . . for failing to file early or to take other
    extraordinary precautions early in the limitations period
    against what are, by definition, rare and exceptional
    circumstances that occur later in that period.” Id.; see also
    United States v. Gabaldon, 
    522 F.3d 1121
    , 1126 (10th Cir.
    2008) (“[To hold] that [a habeas petitioner] could and should
    have filed . . . before his documents were seized would not
    only arbitrarily shorten his limitations period, but also would
    unduly penalize him for making the effort to research his
    claims thoroughly and set forth his arguments in as
    compelling a manner as possible.”). We agree with the
    Second Circuit that a petitioner is entitled to use the full one-
    year statute-of-limitations period for the filing of his state and
    federal habeas petitions and that he need not anticipate the
    occurrence of circumstances that would otherwise deprive
    him of the full 365 days that Congress afforded him for the
    preparation and filing of his petitions. We therefore hold that
    it was improper for the district court to fault the petitioner for
    filing his state petition for postconviction relief late in the
    statute-of-limitations period in reliance on his having a full
    year to file both his state and federal petitions, as promised by
    AEDPA.
    Our conclusion follows from the commonsense
    proposition that when Congress enacts a statute of limitations
    for filings (as it did in AEDPA), it has deemed that period as
    a reasonable period of time in which to complete the requisite
    filings, and it is therefore inherently reasonable for a
    petitioner to rely on that statute of limitations and to plan on
    filing at any point within that period. As a result, courts may
    not retroactively assess a petitioner’s actions in order to judge
    GRANT V. SWARTHOUT                       11
    what a petitioner could have done during the running of the
    statutory period prior to the occurrence of an unexpected
    external impediment which tolls the running of the statute.
    See, e.g., Socop-Gonzalez v. INS, 
    272 F.3d 1176
    , 1196 (9th
    Cir. 2001) (en banc) (“[A] court arguably usurps
    congressional authority when it tolls and then rewrites the
    statute of limitations by substituting its own view of how
    much time a plaintiff reasonably needed to file suit.”).
    The Supreme Court recently considered a related issue
    involving the relationship between a statute of limitations and
    equitable relief in SCA Hygiene Products Aktiebolag v. First
    Quality Baby Products, LLC, 
    137 S. Ct. 954
    (2017). In that
    case, it held that the equitable defense of laches was
    unavailable where a copyright plaintiff filed its claim within
    the statutorily prescribed statute of limitations. The Court
    reasoned that when Congress has determined that a patent
    owner is entitled to three years in which to file a claim,
    allowing courts to shorten that period by deeming a plaintiff
    as having waited too long to file a claim “would give judges
    a ‘legislation-overriding’ role that is beyond the Judiciary’s
    power.” 
    Id. at 960.
    The Court explicitly held that judges
    could not override the statute of limitations period even where
    there were concerns that a plaintiff might try to “game” the
    system, such as by “wait[ing] until an infringing product has
    become successful before suing for infringement.” 
    Id. at 961
    n.4 (“The dissent’s argument implies that, insofar as the lack
    of a laches defense could produce policy outcomes judges
    deem undesirable, there is a ‘gap’ for laches to fill,
    notwithstanding the presence of a statute of limitations. That
    is precisely the kind of ‘legislation-overriding’ judicial role
    that Petrella rightly disclaimed.”). In addition, the Court
    recognized that “[i]f the plaintiff has done only what she is
    permitted to do by statute, . . . the basis for barring the
    12                    GRANT V. SWARTHOUT
    plaintiff seems to have disappeared.” 
    Id. at 961
    (quoting
    1 Dan Dobbs, Law of Remedies § 2.4(4), at 108 (2d ed.
    1993)).
    This rationale applies with equal force in the present case.
    Congress has determined that state prisoners are entitled to
    one full year from the date on which their conviction becomes
    final5 before their federal petition for habeas corpus must be
    filed, and the Supreme Court has rightly held that equitable
    tolling is an available remedy to ensure that prisoners are
    afforded their full statutory entitlement. Equitable tolling
    may not be applied in a manner that would serve to deprive
    prisoners of their right to use the entire statutory period in the
    way they deem fit. One year is not an overly long period in
    which to file both a state petition for postconviction relief and
    a federal habeas petition. From the myriad orders dismissing
    such petitions as untimely, one might even conclude that the
    period is too short to allow many prisoners, especially the
    vast majority who are acting pro se, to investigate, research,
    and fully prepare such complex and lengthy legal documents.
    To use equitable principles to in effect shorten the already-
    short statutory period available to all prisoners by requiring
    them to anticipate extraordinary circumstances and to
    perform the necessary legal work in a shorter period of time
    than the statute requires would deprive them of the
    availability of the full statute-of-limitations period and would
    compel them to meet the additional judge-made requirement
    5
    This can occur either through completion of direct review or the
    expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
    The statute of limitations may begin to run from several other dates, see
    
    id. § 2244(d)(1)(B)–(D),
    but the most common date on which the statute
    of limitations begins running is the date on which the judgment becomes
    final.
    GRANT V. SWARTHOUT                        13
    of performing their legal research and writing on a schedule
    deemed appropriate in hindsight by a judge.
    In holding that AEDPA’s statute of limitations period is
    subject to equitable tolling, the Supreme Court recognized
    that habeas corpus has always been governed by equitable
    principles. See 
    Holland, 560 U.S. at 647
    (“AEDPA’s subject
    matter, habeas corpus, pertains to an area of the law where
    equity finds a comfortable home.”); see also 
    id. at 649
    (“When Congress codified new rules governing this
    previously judicially managed area of law, it did so without
    losing sight of the fact that the ‘writ of habeas corpus plays a
    vital role in protecting constitutional rights.’”). The Court
    also recognized that “AEDPA’s limitations period is not
    particularly long,” and equitable tolling would therefore be
    necessary for prisoners who experienced unforseen obstacles.
    See 
    id. at 647.
    As we have reiterated on numerous occasions, the
    purpose of equitable tolling is to “prevent the unjust technical
    forfeiture of causes of action.” Jones v. Blanas, 
    393 F.3d 918
    , 928 (9th Cir. 2004) (quoting Lantzy v. Centex Homes,
    
    73 P.3d 517
    , 523 (Cal. 2003)). That is, equitable tolling
    entitles a prisoner who experiences an unexpected hardship
    to additional time when he would otherwise be denied his day
    in court. In applying these equitable considerations, we must
    bear in mind that prisoners are generally pro se and are not
    only without the resources to hire counsel but also most often
    without the knowledge or ability to prepare timely and
    adequate habeas petitions by themselves. Allowing courts to
    forfeit a petitioner’s right to equitable tolling because in the
    court’s judgment the prisoner could have filed earlier in the
    statute-of-limitations period had he scheduled his legal work
    14                 GRANT V. SWARTHOUT
    differently would undermine the equitable principles that
    underlie the use of equitable tolling in habeas cases.
    The added judicial condition imposes an additional
    requirement on the right to use a full 365 days and does so in
    the name of equity, although equitable relief – here, equitable
    tolling – is designed to achieve the precisely opposite
    purpose: to ensure that the prisoner will truly have his full
    statutory period available for the performance of his work.
    No opinion of this court or of the Supreme Court has ever
    upheld the denial of equitable tolling to a prisoner on the
    ground that he had not used the portion of the one-year
    statute-of-limitations period that preceded the event justifying
    tolling in a reasonable manner. Quite the contrary, we have
    on several occasions granted equitable tolling to petitioners
    where the triggering event occurred with only days remaining
    in the one-year filing period. See, e.g., 
    Miles, 187 F.3d at 1107
    (petitioner was entitled to equitable tolling although he
    requested a check and submitted his federal petition with only
    five days remaining in AEDPA’s one-year statute of
    limitations); Stillman v. LaMarque, 
    319 F.3d 1199
    , 1202–03
    (9th Cir. 2003) (petitioner was entitled to equitable tolling
    when his lawyer submitted his federal petition to officials to
    have petitioner sign with only one day left in the AEDPA
    filing period); see also Dickershaid v. Martel, 648 F. App’x
    618, 621 (9th Cir. 2016) (petitioner was entitled to equitable
    tolling when prison officials confiscated his legal materials
    with only two days remaining in one-year statute-of-
    limitations period). In none of these cases did we examine
    what steps the petitioner took toward preparing his petition in
    the portion of the statute-of-limitations period that transpired
    before the extraordinary circumstance triggered equitable
    tolling. Nor did we even suggest in any of those cases that
    GRANT V. SWARTHOUT                              15
    failing to have worked on, or failing to work sufficiently
    diligently on, habeas petitions during a portion of the pre-
    extraordinary circumstances period might prevent the
    petitioner from receiving equitable relief.
    B.
    On appeal, the state relies principally on two separate
    arguments. First, it restates the district court’s analysis that
    a petitioner must show that he was diligent not only during
    the existence of an extraordinary circumstance, but also
    before the extraordinary circumstance occurred.6 Second, the
    state argues that prison officials’ delay in providing the
    petitioner with his prison account certificate was not an
    extraordinary circumstance.
    In support of its first argument, the state asserts that Pace
    v. DiGuglielmo, 
    544 U.S. 408
    (2005), held that courts may
    penalize a habeas petitioner for filing his state collateral
    petition toward the end of the statute-of-limitations period if
    the court believes that the prisoner could have filed this
    petition earlier had he worked harder. However, Pace was a
    case in which the Court denied equitable tolling based on the
    petitioner’s failure to pursue state postcollateral relief for four
    years after his direct appeal was concluded. 
    Id. at 419
    (“Yet
    petitioner waited [over four] years, without any valid
    justification, to assert these claims in his November 27, 1996,
    [state] petition.”).
    6
    We have no quarrel with the first half of the state’s thesis, and we
    conclude here that the petitioner exercised reasonable diligence during the
    duration of the extraordinary circumstance in this case. See infra pages
    18–20.
    16                   GRANT V. SWARTHOUT
    Pace was the product of a problem common before the
    passage of AEDPA. Certain states did not have time
    requirements governing the filing of petitions for
    postconviction relief, and thus did not ensure that such relief
    was pursued within a reasonable period of time. As a result,
    prior to AEDPA prisoners could sometimes wait years before
    filing an initial state petition, and federal habeas petitions
    could be delayed accordingly. See, e.g., 
    Pace, 544 U.S. at 410
    –11 (recognizing that Pennsylvania law “was amended in
    1995 to include, for the first time, a statute of limitations for
    state postconviction petitions”); Carey v. Saffold, 
    536 U.S. 214
    , 221 (2002) (“California’s collateral review system
    differs from that of other States in that it . . . . determines the
    timeliness of each filing according to a ‘reasonableness’
    standard.”). In California, where each state postcollateral
    petition is filed separately in each level of the state courts,
    this delay would be compounded as prisoners could wait
    years before proceeding to the next step of their collateral
    appeal. See 
    Carey, 536 U.S. at 221
    . Prisoners could
    ultimately challenge their convictions in federal court
    upwards of a decade after they were originally convicted.
    See, e.g., 
    Pace, 544 U.S. at 410
    –11 (thirteen years passed
    between petitioner’s guilty plea in 1986 and the filing of his
    federal petition in 1999). Under such circumstances, courts
    found it necessary to inquire whether petitioners had sat on
    their claims for years before seeking relief and then asserted
    that they were further entitled to equitable tolling. The
    problem identified in Pace has been almost entirely solved by
    the passage of AEDPA and its establishment of a one-year
    statute of limitations in which to both exhaust state remedies
    and file a federal petition for habeas corpus.7 Because the
    7
    During this period, statutory tolling is applicable while state
    remedies are pursued in the state courts.
    GRANT V. SWARTHOUT                              17
    AEDPA statute of limitations runs from the date that a
    prisoner’s conviction becomes final, in order to be eligible to
    file a federal petition for habeas corpus, petitioners must file
    their state petitions for postcollateral relief within a year
    regardless of whether the state has specifically set a statute of
    limitations for state postcollateral petitions.
    Although we have never denied a prisoner relief for
    failing to act diligently during the portion of the statute-of-
    limitations period that preceded the occurrence of a triggering
    event, there has been some suggestion in two of our cases that
    diligence prior to an extraordinary circumstance may be a
    “relevant” factor. See 
    Gibbs, 767 F.3d at 892
    . First, as
    explained above, examination of diligence prior to an
    unexpected circumstance was important only before AEDPA
    and only in cases in which petitioners waited an unreasonable
    period of time before pursuing postconviction relief. Second,
    neither of these cases stands for the proposition that a
    petitioner lacks the requisite diligence because he failed to act
    expeditiously during the portion of the one-year statute-of-
    limitations period that preceded the occurrence of the
    extraordinary circumstance.8
    8
    In Roy v. Lampert, we noted among other observations that the
    habeas petitioners to whom we granted equitable tolling had “pursued
    their claims within a reasonable period of time before the external
    
    impediment.” 465 F.3d at 972
    . Roy concerned the petitions of two
    prisoners: one prisoner had one week between his conviction becoming
    final and the occurrence of the external impediment, and the other
    prisoner’s conviction became final after the extraordinary circumstance
    had begun. 
    Id. Thus, although
    Roy referred to time within the statutory
    period, it did not comment upon whether such a period could ever have
    been unreasonable and if so under what circumstances. Roy may well
    have been referring to the pre-AEDPA problem of failing to exhaust the
    state collateral remedies in a reasonable period of time and noting that no
    such problem existed in that case. This is supported by the fact that the
    18                    GRANT V. SWARTHOUT
    II.
    A.
    The state is correct, of course, that there is a requirement
    that a petitioner establish reasonable diligence in equitable
    tolling cases. This requirement is primarily concerned,
    however, with whether the petitioner was “diligent in his
    efforts to pursue his appeal at the time his efforts were being
    thwarted.” 
    Gibbs, 767 F.3d at 893
    (quoting 
    Roy, 465 F.3d at 970
    –71). This too makes sense. We do not wish petitioners
    to take undue advantage of equitable tolling by using the time
    during which the extraordinary circumstance exists to stretch
    out unreasonably the period before their petition is due.
    Rather, during the period of equitable tolling, we expect the
    only cases cited in Roy as examples of waiting an unreasonable period of
    time were pre-AEDPA cases in which petitioners had waited well over
    one year to file their state petitions. See 
    id. Most important,
    of course,
    Roy found no bar to equitable relief and indeed granted it to the
    petitioners.
    In Gibbs, when summarizing the law, we merely commented that it
    is “[a]lso relevant” to the equitable tolling inquiry “whether petitioners
    ‘pursued their claims within a reasonable period of time before the
    external impediment . . . came into 
    existence.’” 767 F.3d at 892
    (alteration in original) (quoting 
    Roy, 465 F.3d at 972
    ). Gibbs did not
    suggest or comment on whether a period of time could be unreasonable if
    it fell within the statute of limitations. Rather, the court merely
    commented that Gibbs had been diligent during the entire ten-year period
    between the petitioner’s conviction and the ultimate filing of his habeas
    petition. 
    Id. Because Gibbs
    had affirmatively demonstrated diligence for
    the entire period, the court had no need to consider how much time had
    elapsed before the extraordinary circumstance occurred or whether such
    an inquiry was even relevant in such a post-AEDPA case. In any event,
    in Gibbs as in Roy, the full equitable relief the petitioner sought was
    granted.
    GRANT V. SWARTHOUT                       19
    petitioner to attempt to resolve the impediment preventing
    timely filing so that the courts can consider his petition as
    soon as possible. Undoubtedly, Grant exercised reasonable
    diligence during the twenty-odd-day duration of the
    extraordinary circumstance. He requested his prison account
    certificate on November 21, 2011 on the very same day on
    which he had received notice of the California Supreme
    Court’s denial of his state petition for postconviction relief.
    At that point, he had seven days remaining under AEDPA’s
    one-year statute of limitations. When he did not hear back
    from prison officials for two weeks regarding his prison
    account certificate, he filed a second request.
    Although it would probably have been possible for Grant
    to contact his counselor more often regarding his prison
    account certificate during the twenty odd days, two attempts
    were adequate under the circumstances. See, e.g., Fue v.
    Biter, 
    842 F.3d 650
    , 655 (9th Cir. 2016) (en banc) (holding
    that petitioner would be sufficiently diligent where he
    contacted the California Supreme Court only once in fourteen
    months regarding the status of his state petition); 
    Gibbs, 767 F.3d at 890
    (holding that a prisoner was “adequately
    diligent” when he wrote to his attorney three times over the
    course of seven months to find out if the state supreme court
    had ruled on his state petition); 
    Miles, 187 F.3d at 1105
    , 1107
    (holding that a prisoner was diligent where he waited over six
    weeks to re-submit a petition which prison officials never
    sent to the court). See generally 
    Rudin, 781 F.3d at 1055
    (“The diligence required for equitable tolling purposes is
    ‘reasonable diligence,’ not ‘maximum feasible diligence.’”
    (quoting 
    Holland, 560 U.S. at 653
    )). As we have recognized,
    determining whether an inmate was diligent is inherently “a
    fact-specific inquiry,” 
    Fue, 842 F.3d at 654
    , and we do not
    believe that waiting two weeks before contacting prison
    20                     GRANT V. SWARTHOUT
    officials a second time while awaiting the completion of an
    administrative task in a prison of approximately 4,000
    inmates was unreasonable.
    In such circumstances, it is appropriate for a prisoner to
    rely on his counselor to give him his prison account
    certificate as soon as it becomes available rather than to
    check in continuously with the counselor to see if the
    certificate has become available; the latter course would
    burden both the inmate and the counselor. Cf. 
    Fue, 842 F.3d at 655
    –56 (“We also doubt that the California Supreme Court
    would welcome the flood of status-update requests that would
    likely follow were we to require all habeas petitioners to
    engage in a ‘steady stream of correspondence’ with the court
    to show their diligence.”). As this court recently reiterated,
    “We do not require petitioners to engage in such ‘overzealous
    or extreme’ conduct to show their diligence.” 
    Id. at 655
    (quoting Doe v. Busby, 
    661 F.3d 1001
    , 1015 (9th Cir. 2011)).
    B.
    Although there is considerable confusion in our case law
    regarding whether a petitioner may need to prove that he was
    diligent after an extraordinary circumstance has ended,9 we
    9
    This court adopted a stop-clock approach, under which diligence is
    required only during the existence of an extraordinary circumstance, when
    considering equitable tolling in immigration cases in Socop-Gonzalez v.
    INS, an immigration 
    case. 272 F.3d at 1194
    –96. The en banc court
    reasoned that requiring diligence after filing would “do[] away with the
    major advantages of statutes of limitations: the relative certainty and
    uniformity with which a statutory period may be calculated and applied,”
    as well as displace “Congress’ intended policy . . . to permit plaintiffs to
    take a specified amount of time (even if they don’t ‘need it’)” in
    investigating and preparing their claims. 
    Id. at 1195–96
    (citation omitted).
    GRANT V. SWARTHOUT                                 21
    We recognized that the stop-clock rule similarly applies to equitable
    tolling for petitions for writs of habeas corpus in 
    Gibbs, 767 F.3d at 892
    .
    Although some language exists in our cases suggesting that, contrary
    to the stop-clock approach, diligence may be required for the remainder
    of the filing period, it bears emphasizing that we have never denied relief
    to a petitioner because he did not exercise diligence after the relevant
    extraordinary circumstance had ended. The closest case, Spitsyn v.
    Moore, 
    345 F.3d 796
    (9th Cir. 2003), merely remanded to the district court
    to determine whether the petitioner had exercised reasonable diligence
    during any period of time that would then be equitably tolled because the
    issue before the court on appeal related only to whether an extraordinary
    circumstance had occurred. We find the analysis of one of our colleagues
    in a recent memorandum disposition persuasive in its assessment of this
    case: “Spitsyn only addresses the diligence prong of equitable tolling in
    dicta. . . . While the Court simply noted in its concluding paragraph that
    ‘the record [did] not indicate why Spitsyn did not file his petition until
    September, when [his counsel] returned his files in April,’ the Court did
    not indicate that Spitsyn’s lack of diligence during this time period would
    necessarily preclude his entitlement to equitable tolling.” Bobadilla v.
    Gipson, No. 14-56461, 
    2017 WL 908550
    , at *2 n.1 (9th Cir. Mar. 8, 2017)
    (Murguia, J., dissenting) (alterations in original) (citations omitted).
    Recent cases have not altered our conclusion. In Luna v. Kernan, 
    784 F.3d 640
    , 651 (9th Cir. 2015), we suggested that Spitsyn had established
    a diligence-through-filing requirement. This suggestion, however, was
    mere dicta: at issue in Luna was only whether the petitioner had exercised
    diligence during the existence of an extraordinary circumstance –
    specifically, the grossly deficient performance of his attorney. See 
    id. at 649
    –50. The court was not presented with an instance in which it needed
    to consider a post-extraordinary circumstances period. Similarly, in Fue,
    we asserted that “[o]rdinarily, a petitioner must act with reasonable
    diligence” both during and after an extraordinary circumstance, citing only
    a decision of the Sixth Circuit in support of this proposition. 
    See 842 F.3d at 655
    . Fue was chiefly a case about what level of diligence was required
    for a prisoner waiting to receive delayed notice about the outcome of his
    state petition for postconviction relief (in other words, during the existence
    of an extraordinary circumstance). See 
    id. at 654–56.
    The en banc court
    explicitly concluded that no post-extraordinary circumstance period
    22                     GRANT V. SWARTHOUT
    need not resolve that question in this case because it is
    obvious that Grant was diligent after the extraordinary
    circumstance had ended: he received his prison account
    certificate on December 19 and constructively filed his
    petition the same day. Thus, while we note that the stop-
    clock approach to equitable tolling is consistent with a court’s
    obligation to give effect to Congress’s intent to provide
    prisoners with a full 365 days to file their state and federal
    petitions, we also recognize that we have not clearly resolved
    the question whether diligence is required after an
    extraordinary circumstance has ended. Although we would
    be inclined to hold that diligence is not required after the
    termination of an extraordinary circumstance because
    petitioners are entitled to use all 365 days afforded them by
    Congress, since the issue is not before us, we leave its
    determination for another day.
    III.
    The state’s second argument is that Grant did not
    experience an extraordinary circumstance sufficient to justify
    equitable tolling. We disagree. Grant was entirely dependent
    on prison officials to provide him with the requested
    document and could not file his petition for habeas corpus
    without it. See Rules Governing Section 2254 Cases in the
    United States District Courts, R. 3(a) (“An original and two
    existed because the petitioner had never received sufficient notice that his
    state petition for postconviction relief had been denied. 
    Id. at 656.
    It
    thereafter suggested that even if Fue had received notice of the denial of
    his state petition, he had also diligently prepared and filed his federal
    petition after that notice. See 
    id. In no
    way does this discussion establish
    a new rule that diligence is required after an extraordinary circumstance
    has ended; nor could it possibly have applied that rule in the case before
    it.
    GRANT V. SWARTHOUT                              23
    copies of the petition must be filed with the clerk and must be
    accompanied by (1) the applicable filing fee, or (2) a motion
    for leave to proceed in forma pauperis, the affidavit required
    by 28 U.S.C. § 1915, and a certificate from the warden or
    other appropriate officer of the place of confinement showing
    the amount of money or securities that the petitioner has in
    any account in the institution.” (emphasis added)).10 Where
    a prisoner is dependent on prison officials to complete a task
    necessary to file a federal habeas petition and the staff fails to
    do so promptly, this constitutes an extraordinary
    circumstance. Miles v. Prunty is dispositive of this 
    issue. 187 F.3d at 1107
    (“Here, as an incarcerated pro se litigant,
    Miles depended on prison authorities to draw on his trust
    account and to prepare a check for the filing fee. He further
    relied on these same authorities to mail his check and petition
    to the district court. Once Miles made his request, any delay
    on the part of prison officials in complying with Miles’
    instructions was not within Miles’ control.” (emphasis
    added)); see also 
    Stillman, 319 F.3d at 1202
    –03 (holding that
    extraordinary circumstances outside of the petitioner’s
    10
    The state asserts that Grant could have filed his habeas petition
    without the account certificate because “district courts regularly impose
    a conditional dismissal, which results in a dismissal without prejudice and
    with leave to amend.” The state does not explain how a pro se prisoner
    would be expected to know that this was the “actual practice” of district
    courts. Moreover, this assertion misconstrues circuit precedent: the
    habeas petitioner need not prove that no prisoner could ever successfully
    file a timely petition under the extraordinary circumstances, only that it
    would be unlikely that a petitioner could do so. See 
    Gibbs, 767 F.3d at 888
    & n.8. That some pro se prisoner would take the risk of filing a
    petition without an account certificate and have the good fortune of
    receiving a conditional dismissal is insufficient to overcome the equitable
    principle that inmates should not be forced to choose between submitting
    an incomplete petition or an untimely one because of prison officials’
    failure to provide prisoners with needed documents.
    24                 GRANT V. SWARTHOUT
    control existed where the prison’s litigation coordinator
    promised the petitioner’s lawyer that he would “obtain
    [petitioner’s] signature in time for filing, but then broke his
    promise, causing the filing to be late”). And, Grant has
    shown that the delay of his petition until even December 2
    was unexpected and that the prison account certificate was
    delayed because of the long Thanksgiving weekend, budget
    cuts, and unusually heavy employee workloads. In addition,
    the record demonstrates that prison officials’ delay was the
    cause of Grant’s petition being untimely: Grant sent his
    request to prison officials on November 21, 2011, the same
    day that he received the California Supreme Court’s denial of
    state postconviction relief. At that point, he still had seven
    days left in the one-year filing period. Grant received his
    prison account certificate on December 19, 2011, and
    constructively filed his petition that same day. Therefore,
    absent prison officials’ delay, Grant would have filed his
    petition within the AEDPA statute of limitations.
    CONCLUSION
    We therefore conclude that Grant is entitled to equitable
    tolling from the time he requested his prison account
    certificate on November 21, 2011 until he received that
    certificate on December 19, 2011. His petition was therefore
    timely. The district court’s order granting respondent’s
    motion to dismiss is therefore reversed, and the case is
    remanded for further proceedings consistent with this
    opinion.
    REVERSED and REMANDED.