Kenneth Bernard Rouse v. R.C. Lee, Warden, Central Prison, Raleigh, North Carolina

339 F.3d 238

Opinions

Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINS and Judges WIDENER, WILKINSON, NIEMEYER, TRAXLER, and SHEDD concurred. Judge DIANA GRIBBON MOTZ wrote a separate dissenting opinion in which Judges MICHAEL, KING, and GREGORY joined.

OPINION

WILLIAMS, Circuit Judge:

A North Carolina jury convicted Kenneth Rouse of first-degree murder, robbery with a dangerous weapon, and attempted first-degree rape. Following a capital sentencing proceeding, the jury recommended the death penalty. Rouse was then sentenced to death for first-degree murder, forty years’ imprisonment for armed robbery, and twenty years’ imprisonment for attempted first-degree rape. More than one year after exhausting all state remedies, Rouse filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of North Carolina.¹ The district court dismissed Rouse’s petition as untimely pursuant to the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA). See 28 U.S.C.A. § 2244(d) (West 1994 & Supp.2003).

Rouse appeals the district court’s determination that neither statutory tolling nor equitable tolling of the AEDPA limitations period operated to render his federal habe-as petition timely filed. Sitting en banc, we hold that Rouse’s federal habeas petition was filed after the expiration of the 1-year AEDPA limitations period, including statutory tolling, and that because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the statute of limitations, he is not entitled to equitable tolling. Accordingly, we affirm the district court’s dismissal of Rouse’s petition as untimely.

I.

A.

In March 1992, Rouse was convicted of first-degree murder, armed robbery, and attempted first-degree rape. The relevant facts underlying petitioner’s conviction are succinctly set forth in the Supreme Court of North Carolina’s opinion affirming Rouse’s conviction and sentence on direct appeal.

[Responding to a call,] [s]everal officers soon arrived at The Pantry [in Ashe-boro, North Carolina.] [Officer Hin-shaw] heard a muffled sound coming from a storage room. He and Sergeant York, who had arrived at the scene, entered the room where they found defendant [Rouse] against a wall. Hin-shaw aimed his gun at defendant, and defendant said, “I ain’t got nothing, man.”

Defendant had blood on him, especially on the front of his shirt, his pants, his hands, his waist, his legs and his underwear. There were abrasions on his knees. His pants were unzipped but fastened at the top. His belt was hanging off. Hinshaw ordered defendant to freeze and pinned him behind the door. Defendant was then handcuffed and taken out of the room. Lieutenant Charles Bulla searched defendant in the store and found in defendant’s pocket three rolls of pennies in a plastic container. Defendant was then taken away. Defendant did not resist the officers at this or any time. No odor of alcohol was found on defendant’s breath.

On the floor of the storage room was Hazel Colleen Broadway, lying in a pool of blood. She tried to tell Hinshaw something but soon died. Broadway was covered in blood. There were hand-prints on her body. She was wearing a blouse, and her pants had been pulled down to her feet.... [She had] a knife in [her] neck. The blade part of the knife was bent in a ninety-degree angle just below the handle.

More officers soon arrived at the scene who surveyed the store and collected evidence. The store was in disarray. A cigarette stand was overturned, and cigarettes were strewn about the floor. The cash register was turned sideways. Two empty rolls for pennies were on the floor. There was some other debris on the floor beside a trash can and some other penny rolls which seemed to have been knocked out of the safe. The bar stool behind the cash register had some blood on it. There were also spots of blood near the cash register....

... [B]lood on defendant’s hands, shirt and underwear was consistent with samples of blood taken from the victim ....

[The medical examiner] concluded that the victim died as a result of blood loss caused by a stab wound to the left neck, severing the carotid artery and jugular vein. A person could live ten to fifteen minutes after being stabbed in that location. In addition to the lethal knife wound, there were numerous other wounds to the victim including bruises, stab wounds and abrasions to her neck, chest, stomach, arms, shoulders, thighs, knee, palm, thumb, back, and elbow. Many of these were consistent with a sharp cutting instrument. Other injuries were consistent with a blunt instrument.

State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 548 (1994).

B.

On October 2, 1995, the United States Supreme Court denied Rouse’s petition for a writ of certiorari. On April 19, 1996, Rouse filed a motion for appropriate relief (MAR) and over 100 pages of exhibits, including affidavits and interview transcripts, excerpts from the trial transcript, and letters, in the North Carolina Superior Court for Randolph County (the state MAR court). The state MAR court denied relief on the merits. State v. Rouse, Nos. 91-CRS-3316-17, 92-CRS-2 (N.C.Super.Ct. Aug. 2, 1996) (unpublished).² On October 10, 1996, Rouse filed an amended MAR based on intervening legislation,³ which was also denied. At the same time, the state MAR court denied Rouse’s Motion for Production of Discovery and his motion for reconsideration of the dismissal of the original MAR. The Supreme Court of North Carolina granted Rouse’s petition for writ of certiorari and remanded for reconsideration of Rouse’s MAR in light of two North Carolina cases interpreting the new legislation. State v. Rouse, 510 S.E.2d 669 (1998) (citing State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998), and State v. McHone, 348 N.C. 254, 499 S.E.2d 761 (1998)). On remand, the state MAR court again denied relief. This time, the Supreme Court of North Carolina denied the petition for writ of certiorari by order entered February 5,1999.⁴

On February 8, 2000, Rouse filed a petition for a writ of habeas corpus in the district court. The State filed a motion to dismiss the petition as untimely. Pursuant to 28 U.S.C.A. § 636 (West 1993 & Supp. 2003), the petition was referred to a United States magistrate judge, who recommended that the district court dismiss the petition as untimely. Rouse filed detailed objections to the magistrate judge’s recommendation, attaching several affidavits and a neuropsychological evaluation report. The district court “reviewed [Rouse’s] objections ... de novo 'and [found] they do not change the substance of the United States Magistrate Judge’s rulings.” (J.A. at 388.) Accordingly, the district court affirmed and adopted the magistrate judge’s rulings and dismissed Rouse’s petition as untimely. Rouse filed a motion to alter or amend the judgment, which the district court denied. Rouse filed a timely notice of appeal to this court.

A panel of this court reversed the district court’s dismissal. Rouse v. Lee, 314 F.3d 698 (4th Cir.), vacated and reh’g en banc granted, (4th Cir. Feb. 13, 2003). Upon the State’s suggestion, a majority of full-time, active circuit judges voted to rehear the case en banc. As Judge King granted a certificate of appealability, we proceed to address Rouse’s statutory tolling and equitable tolling arguments below.

II.

The timeliness of Rouse’s petition is governed by the AEDPA. The AEDPA was signed into law on April 24, 1996, and became effective immediately. In pertinent part, it provides that:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(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....

28 U.S.C.A. § 2244(d)(1). For prisoners, like Rouse, whose convictions became final before the AEDPA was enacted, the one-year limitations period began to run on the AEDPA’s effective date, and thus, they had until April 24, 1997, absent tolling, to file their federal habeas petitions. Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir.2000). Rouse filed his federal ha-beas petition on February 8, 2000. Although the AEDPA limitations period is subject to both statutory tolling and equitable tolling, see Spencer v. Sutton, 239 F.3d 626 (4th Cir.2001), for the reasons discussed below, neither operated to render his petition timely filed.

A. STATUTORY TOLLING

The AEDPA explicitly provides that its one-year limitations period is tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C.A. § 2244(d)(2). “[U]nder § 2244(d)(2) the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review), is tolled from the limitations period for federal habeas corpus petitioners.... ” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999). As there is no question that Rouse’s MAR was “properly filed,” and it is undisputed that Rouse’s MAR was “pending” as of the AEDPA’s effective date, the issue is when Rouse’s MAR ceased to be pending before the highest state court. See id.

The district court held that Rouse’s state post-conviction review was no longer pending once the Supreme Court of North Carolina denied certiorari on February 5, 1999. Accordingly, the one-year statute of limitations period ended on February 5, 2000, which being a Saturday, meant that Rouse had until February 7, 2000, to file his federal habeas petition. See Fed.R.Civ.P. 6(a). Because Rouse did not file his federal habeas petition until February 8, 2000, the district court concluded that the petition was untimely. Rouse argues that his MAR remained pending after February 5, 1999, and thus, that he is entitled to additional statutory tolling. We review the district court’s legal conclusions de novo. Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir.2003).

1. North Carolina Rule of Appellate Procedure 32(b)

Rouse argues that his MAR remained pending for twenty days after the state court denied certiorari, until February 25, 1999, because North Carolina Rule of Appellate Procedure 32(b) requires that unless “a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the clerk.” N.C. R.App. P. 32(b). One would not expect a mandate to issue from a denial of certiorari, however, as there is no action for the lower court to take once the petition for writ of certiorari is denied. See Black’s Law Dictionary 962 (6th ed.1990) (providing relevant definition of “mandate” as “[a] precept or order issued upon the decision of an appeal or writ of error, directing action to be taken, or disposition to be made of case, by inferior court. Official mode of communicating judgment of appellate court to lower court, directing action to be taken or disposition to be made of cause by trial court.”). Nor would one expect a judgment to be entered, as a denial of certiorari is a refusal to determine the rights and obligations of the parties. See id. at 841-42 (providing relevant definition of “judgment” as “[t]he final decision of the court resolving the dispute and determining the rights and obligations of the parties”); see also Felton v. Barnett, 912 F.2d 92, 94 (4th Cir.1990) (holding that a “denial of ... a writ [of certiorari from the Supreme Court of North Carolina] is not a judgment but is simply a refusal to hear the appeal”). In fact, as the clerk of the Supreme Court of North Carolina explained in an affidavit, the general practice of that court is that Rule 32(b) mandates do not issue after summary denials of certiorari. More importantly, Rouse has submitted no evidence that any mandate ever issued in his case. Thus, Rule 32(b) clearly did not apply.

2. North Carolina Rule of Appellate Procedure 31(g)

Rouse argues that his petition remained pending during the period in which he could have sought rehearing from the Supreme Court of North Carolina. While it is correct that an application for state collateral review remains pending during the time to seek further review in the state courts, “until the application has achieved final resolution through the State’s post-conviction procedures,” Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), North Carolina law does not support Rouse’s argument that he could have sought rehearing from the Supreme Court of North Carolina.

Under North Carolina law, a MAR is part of the original action, and thus, criminal in nature. N.C. GemStat. § 15A-1411(b). Petitions for rehearing were not (and are not) available in criminal proceedings. N.C.R.App. P. 31(g). Because no rehearing was available, there was no period following the denial of certiorari during which Rouse could have sought rehearing. Rouse contends that, notwithstanding Rule 31(g), rehearing was available because the Supreme Court of North Carolina has “used its discretionary authority to reconsider denials” of such petitions. (Reply Br. at 10.) Rouse, however, did not seek such review. Moreover, the fact that North Carolina sometimes suspends or creates exceptions to its procedural rules does not mean that the state proceeding was “pending.” Cf. Carey, 536 U.S. at 223-25, 122 S.Ct. 2134 (noting that there would be no tolling of the statute of limitations during time that a prisoner might file a petition for an original writ of habeas corpus in a state supreme court where the original writ procedure is only exercised in extraordinary cases); Allen v. Mitchell, 276 F.3d 183, 185-86 (4th Cir.2001) (no tolling of statute of limitations for time after appeal period ended and before untimely petition was actually under consideration by state court even though “state courts frequently suspend or create exceptions to their procedural rules, and ... review may therefore be available even after deadlines have expired” and even though the state court did in fact consider the untimely petition for appellate review). Thus, Rule 31(g), like Rule 32(b), does not extend the pendency of Rouse’s state post-conviction review.

3. Federal Rule of Civil Procedure 6(e)

Though not an argument for statutory tolling per se, Rouse argues that the “mailbox rule,” Federal Rule of Civil Procedure 6(e), explicitly extends the 1-year AEDPA limitations period by three days. Rouse’s argument has two fatal flaws.

First, Rule 6(e) applies only to parties.⁵ During the running of the statute of limitations, Rouse was not a party to any federal proceeding. See Clay v. United States, 199 F.3d 876, 880 (6th Cir.1999) (“[B]y its plain language, Rule 6(e) provides additional time only for ‘a party.’ ... Rule 6(e) and the three-day extension it provides have consistently been held to be inapplicable to jurisdictional periods for commencing a proceeding in the district court.”).

Second, Rule 6(e) provides a party three additional days only when that party “has the right or is required to [take some action] within a prescribed period after the service of a notice or other paper upon the party.” The limitations period of the AEDPA, however, runs from “the date on which the judgment became final,” 28. U.S.C.A. § 2244(d)(1)(A), not from the date on which Rouse was served with (or, in this case, merely received) notification of the final judgment. See Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.2000); see also Hill v. Braxton, 277 F.3d 701, 704-05 (4th Cir.2002); cf. Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1291 (10th Cir.1996) (holding Rule 6(e) inapplicable to the ten-day period. specified by Federal Rule of Civil Procedure 59(e), because that period is triggered by the entry of judgment, not by service of a notice); Derrington-Bey v. D.C. Dep’t of Corr., 39 F.3d 1224, 1225 (D.C.Cir.1994) (“Mere quotation of Rule 6(e) shows why it is inapplicable to Rule 59(e) motions. The period for filing a Rule 59(e) motion does not — in the words of Rule 6(e) — -begin with ‘service of a notice.’ ”); Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir.1994) (“Rule 6(e) only enlarge[s] the filing time when the period for acting runs from the service of a notice by mail.”); 1 James W. Moore, et al., Moore’s Federal Practice § 6.05[3], at 6-35 (3d ed.1998) (“Rule 6(e) does not apply to time periods that begin with the filing in court of a judgment or order.”). Thus, the mailbox rule does not extend the AEDPA limitations period.

Accordingly, Rouse’s MAR was no longer pending as of February 5, 1999, and he is not entitled to statutory tolling beyond that date. We now consider whether the district court should have applied the doctrine of equitable tolling to deem the petition timely filed.

B. EQUITABLE TOLLING

“Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases ... and to further the principles of comity, finality, and federalism.” Woodford v. Garceau, — U.S. -, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003) (internal citations and quotation marks omitted). Nevertheless, we have held that the AEDPA statute of limitations is subject to equitable tolling. Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000). As we held in Harris, however, rarely will circumstances warrant equitable tolling:

[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for those rare instances where— due to circumstances external to the party’s own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.

Id. Principles of equitable tolling do not extend to garden variety claims of excusable neglect. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (equitable tolling did not apply where petitioner’s lawyer was absent from the office when the EEOC notice was received, and petitioner filed within 30 days of the date he personally received notice). Equitable tolling “is appropriate when, but only when, ‘extraordinary circumstances beyond [the petitioner’s] control prevented him from complying with the statutory time limit.’ ” Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir.2001) (quoting Harris, 209 F.3d at 330). Accordingly, under our existing “extraordinary circumstances” test, Rouse is only entitled to equitable tolling if he presents (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.

The district court held that although the 1-year AEDPA limitations period is subject to equitable tolling, a “mistake of counsel does not serve as a ground for equitable tolling” as a matter of law. (J.A. at 328.) The court held that the circumstance that prevented Rouse from filing on time, his former counsel’s “slight miscalculation by relying on Fed.R.Civ.P. 6(e),” was not an extraordinary circumstance beyond Rouse’s control, and thus, that equitable tolling did not apply. (J.A. at 327-81.) The district court also found that Rouse’s health during the limitations period did not warrant equitable tolling because he was not in “any way incompetent for a substantial part of the [limitations period].” (J.A. at 331.)

1. Standard of Review

Before reviewing the district court’s decision, we consider the proper standard of review. We have not squarely addressed the proper standard of review of a district court’s denial of equitable tolling in the habeas context.⁶ In Harris v. Hutchinson, 209 F.3d 325 (4th Cir.2000), the case in which we held that a habeas corpus action brought under § 2244 is subject to equitable tolling, not surprisingly, there is no mention of the standard of review. In our first habeas case applying equitable tolling post-Harris, Minter v. Beck, 230 F.3d 663 (4th Cir.2000), we held, without any discussion of the proper standard of review, that “the district court abused its discretion” in tolling the statute of limitations. Id. at 667. In our next, and most recent, case considering equitable tolling in a habeas case, Spencer v. Sutton, 239 F.3d 626 (4th Cir.2001), we held, again with no discussion of the standard of review, that the district court “erred” in tolling the statute. Id. at 631. Accordingly, we seem not to have established whether abuse of discretion or de novo review applies. See Brecht v. Abrahamson, 507 U.S. 619, 630-31, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (“Although we have applied the Chapman standard in a handful of federal habeas cases, we have yet squarely to address its applicability on collateral review.... [Sjince we have never squarely addressed the issue, and have at most assumed the applicability of the Chapman standard on habeas, we are free to address the issue on the merits.”).

The other circuits are divided on the proper standard of review, with some applying abuse of discretion and others applying de novo review.⁷ Several circuits provide for de novo review in certain circumstances, for instance where the facts are undisputed⁸ and the district court denied equitable tolling as a matter of law, and abuse of discretion review in all other circumstances.⁹ We think this is the better course. Accordingly, where the relevant facts are undisputed and the district court denied equitable tolling as a matter of law, we review the district court’s decision de novo. In all other circumstances, we review the denial of equitable tolling for an abuse of discretion.

2. Whether Extraordinary Circumstances Beyond Rouse’s Control Prevented Him From Filing On Time

Turning to Rouse’s arguments, he first argues that his medical condition during the limitations period is an extraordinary circumstance beyond his control that prevented him from filing on time, thus warranting equitable tolling. Because Rouse simply provides no reason why his medical condition barred him from filing his habeas petition at least one day earlier, we hold that the district court did not abuse its discretion in denying equitable tolling on this basis.¹⁰

Second, Rouse contends that the “gross negligence and unprofessional conduct” of his former habeas counsel in “misinterpreting] the statutory requirements” constitutes an extraordinary circumstance beyond his control that prevented him from filing on time. (Appellant’s Br. at 25, 27-28.) The errors of Rouse’s former counsel, however, were neither extraordinary nor, for purposes of our inquiry, external to Rouse’s own conduct.

We review de novo the district court’s denial of equitable tolling on this basis because the district court held that, as a matter of law, a “mistake of counsel does not serve as a ground for equitable tolling.” (J.A. at 328.) This circuit has held that “a mistake by a party’s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party’s control where equity should step in to give the party the benefit of his erroneous understanding.” Harris, 209 F.3d at 331. A majority of other circuits agree. See Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir.2003)¹¹ (applying general rule that “attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the'extraordinary’ circumstances required for equitable tolling” (internal quotation marks omitted)); Beery v. Ault, 312 F.3d 948, 951 (8th Cir.2002) (“Ineffective assistance of counsel generally does not warrant equitable tolling.”); Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir.2002) (“[Counsel's erroneous interpretation of the statute of limitations provision cannot, by itself, excuse the failure to file [the] habeas petition in the district court within the one-year limitations period.”); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001) (“[Attorney error [is] inadequate to create the ‘extraordinary’ circumstances equitable tolling requires.”); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (“We conclude that the miscalculation of the limitations period by Frye’s counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.”); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999) (holding that a lawyer’s miscalculation of the' limitation period was not a valid basis for equitable tolling); Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir.1999) (refusing to apply equitable tolling where late filing was caused by attorney’s use of ordinary mail to send petition less than a week before it was due); Gilbert by Gilbert v. Sec. of Health & Human Servs., 51 F.3d 254, 257 (Fed.Cir.1995) (“The negligence of Gilbert’s attorney does not justify applying equitable tolling.”). As further support for the proposition that attorney error is not an extraordinary circumstance, attorney error during habeas proceedings is not itself a ground for relief in a § 2254 proceeding. See 28 U.S.C.A. § 2254(i) (West Supp.2002) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”).

Moreover, the actions of Rouse’s attorneys are attributable to Rouse, and thus, do not present “circumstances external to the party’s own conduct,” Harris, 209 F.3d at 330. Rouse’s argument that the errors of his former habeas counsel are external to his conduct because he did not participate in their decisions misses the mark. Former counsel’s errors are attributable to Rouse not because he participated in, ratified, or condoned their decisions, but because they were his agents, and their actions were attributable to him under standard principles of- agency.¹² See Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (explaining that attorney error, short of ineffective assistance of counsel, is, under standard principles of agency, attributable to the client); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[A] defendant [who] is represented by counsel whose performance is not constitutionally ineffective ... bear[s] the risk of attorney error .... ”); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“Under our system of representative litigation, each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.” (internal quotation marks omitted)).¹³

In both Carrier and Coleman, the Supreme Court considered whether an attorney’s error constituted cause for a procedural default, which like equitable tolling, requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Carrier, 477 U.S. at 488, 106 S.Ct. 2639. The Court held that “[attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’” Coleman, 501 U.S. at 753, 111 S.Ct. 2546 (quoting Carrier, 477 U.S. at 488, 106 S.Ct. 2639). Attorney error that constitutes ineffective assistance of counsel is not attributable to the petitioner. This is so, however, “not because ... the error is so bad that ‘the lawyer ceases to be an agent of the petitioner,’” but rather, because “‘the Sixth Amendment itself requires that responsibility for the default be imputed to the State.’ ” Id. at 754, 111 S.Ct. 2546 (quoting Carrier, 477 U.S. at 488, 106 S.Ct. 2678). Thus, the Coleman Court held that attorney error during state habeas proceedings was not “cause” because “[tjhere is no constitutional right to an attorney in state post-conviction proceedings ... [and][c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Id. at 752, 111 S.Ct. 2546.

Similarly, Rouse had no constitutional right to counsel in his federal habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (no constitutional right to counsel beyond first appeal of right), Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir.1995) (no constitutional right to counsel during federal habeas). Rouse did have a statutory right to counsel, see 21 U.S.C.A. § 848(q)(4) (West 1999), but there can only be constitutional ineffective assistance of counsel where there is a constitutional right to counsel. Coleman, 501 U.S. at 752, 111 S.Ct. 2546. In the absence of constitutional ineffective assistance of counsel, attorney error is attributable to the petitioner. Id. at 753, 111 S.Ct. 2546. Accordingly, because Rouse’s former habeas counsel’s error cannot be constitutionally ineffective, that error can “fairly be attributable” to Rouse and is not “external” to his own conduct.¹⁴ See Coleman, 501 U.S. at 753, 111 S.Ct. 2546.

Because Rouse has not shown that extraordinary circumstances beyond his control prevented him from timely filing his federal habeas petition, the district court did not err in holding that he is not entitled to equitable tolling under our existing “extraordinary circumstances” test applied in Harris v. Hutchinson and Spencer v. Sutton. We next consider whether we should apply a different equitable tolling test to this case.

3. Whether We Should Apply A Different Test

Rouse argues that the “significance and magnitude of the potentially barred claim is a primary justification for equitable tolling,” (Appellant’s Br. at 32), and the fact that he “faces a death sentence is an important part of the equitable tolling equation,” (Appellant’s Br. at 31). It is undisputed that neither the nature of Rouse’s claims nor his sentence was a factor “beyond his control” during the limitations period or was a factor that affected his ability to meet the statutory deadline, and thus, these factors do not entitle Rouse to equitable tolling under our existing “extraordinary circumstances” test because that test requires the petitioner to present (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time. Harris, 209 F.3d at 330. Thus, Rouse is essentially arguing that we should apply a different equitable tolling test to his case. For the reasons set forth below, we decline to adopt an equitable tolling test that would consider a petitioner’s underlying claim or sentence.

First, we see no reason why the decision as to whether a court considers the claims in an untimely petition should depend on the nature of the claims in the petition. Allowing consideration of the merits of time-barred claims to creep into the equitable tolling analysis lets petitioners effectively circumvent the statute of limitations because the merits of their claims will always be considered. This would enable petitioners who were in no way prevented from complying with the statute of limitations to create delay and undermine finality — two of the reasons that precipitated enactment of the AEDPA statute of limitations. As discussed below, we reject Rouse’s invitation to apply equitable tolling based on a factor that had nothing to do with his failure to file on time.

Rouse claims that Justice Stevens’s concurrence in Duncan v. Walker, 533 U.S. 167, 182, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (Stevens, J., concurring), suggests that the seriousness of a potential constitutional violation would be a sound basis for equitable tolling. The concurrence, however, does not make any such suggestion. The concurrence notes that when a petition containing unexhausted claims is filed within the limitations period, “there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.” Duncan, 533 U.S. at 182-83, 121 S.Ct. 2120 (Stevens, J., concurring). The concurrence also observes that the Duncan majority did not “preclude[ ] a federal court from deeming the limitations period tolled [when a petition containing unexhausted claims is filed within the 1-year limitations period] as a matter of equity.” Id. at 183, 121 S.Ct. 2120 (internal citations omitted). In other words, the concurrence suggests that equitable tolling might be appropriate based on the filing of a petition, albeit an improper petition containing unexhausted claims, within the time period, not that the nature of the claims is a sound basis for equitable tolling. Rouse did not file any federal habeas petition within the limitations period, let alone one containing exhausted and unexhausted claims, so the situation contemplated by the Duncan concurrence is not before us.

Rouse also relies on Baskin v. United States, 998 F.Supp. 188, 189-90 (D.Conn.1998), but it does not provide any more support than does the Duncan concurrence. In Baskin, the petitioner alleged that his federal habeas petition was late because his trial counsel never informed him that the United States Supreme Court denied his petition for certiorari. The court held that “[i]t would be grossly inequitable to bar petitioner’s ineffective assistance of counsel claim on the basis that counsel’s error permitted the statute of limitations to run.” Id. at 190. This is not a suggestion that the merits of the underlying claim is a reason to grant equitable tolling. Instead, the court recognized that, as we discussed above, if trial counsel’s error constituted constitutional ineffective assistance of counsel, then counsel’s error is not attributable to the petitioner pursuant to Coleman and Carrier. For the reasons discussed in Section B.2, however, Rouse’s former habeas counsel’s error is attributable to Rouse.

Finally, my dissenting colleagues rely on Lonchar v. Thomas, 517 U.S. 314, 320, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), to contend that “the strength of the claims in a habeas petition must inform a court’s decision to exercise its equitable power to toll limitations.”¹⁵ Post at 33. But Lonchar, a pre-AEDPA case, has nothing at all to do with equitable tolling, and it certainly does not hold that we should consider the strength of the claims in a habeas petition when deciding whether equitable tolling is appropriate.¹⁶ To the extent that Lonchar informs the analysis, however, it reinforces our belief that we should follow our equitable tolling decisions that restrict equitable tolling to narrow circumstances not present in this case. See Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir.1998) (“[Confirmation that a statutory limitations period should be enforced appears in the Supreme Court’s ... decision in Lonc-har v. Thomas_”).

At issue in Lonchar was whether “the Court of Appeals properly dismiss[ed][a] first habeas petition for special ad hoc ‘equitable’ reasons not encompassed within the framework of [Habeas Corpus] Rule 9.” Lonchar, 517 U.S. at 322, 116 S.Ct. 1293. In concluding that the court of appeals had erred,- the Supreme Court stressed that “Congress and the framers of the Rule” undertook a balancing of interests, “which courts may not undermine through the exercise of background equitable powers.” Id. at 327, 116 S.Ct. 1293 (emphasis added); see Cantu-Tzin, 162 F.3d at 298 (“The tenor of the majority discussion in Lonchar is that federal courts should not intervene to create equitable reasons for denying stays of execution when federal law and the habeas rules have prescribed principles applicable to the complex mix of equities in capital cases.”). Here, no less, by enacting the AEDPA, Congress has balanced the competing interests — a balance embodied in section 2244(d), which provides a 1-year limitation period and explicitly specifies conditions under which that period should be tolled. We may not amend that statute “through ... ad hoc judicial exception.” Lonchar, 517 U.S. at 328, 116 S.Ct. 1293. While we have already held that equitable tolling applies to the AEDPA when extraordinary circumstances beyond the petitioner’s control prevent him from filing a timely petition, see Harris, 209 F.3d at 329-30, we must refrain from ad hoc alteration of the statutory command. The doctrine of equitable tolling is not a license to suspend enactments of Congress whenever we happen to believe that enforcement of a limitations period would create a.hardship. See id. (cautioning that “any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes”).¹⁷

My dissenting colleagues correctly point out that Rouse’s petition was filed only one day late and argue that “the most minor procedural default imaginable” should not bar federal habeas review in light of what they consider to be his “facially strong constitutional claim.” Post at 261. We recognize that “[a]t the margins, all statutes of limitations and filing deadlines appear arbitrary.” Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir.2002) (declining to equitably toll when the petition was only four days late); cf. Spencer, 239 F.3d at 631 (declining to equitably toll when the petition was only five days late). Failure to adhere to the AED-PA’s precise filing deadlines, however, even “by only a few days,” “would make navigating [the] AEDPA’s timetable impossible, Such laxity would reduce predictability and would prevent us from treating the similarly situated equally.” Lookingbill, 293 F.3d at 265. Accordingly, we look not to the length of the delay, but to the reasons for delay in determining whether equitable tolling is appropriate.

Turning to the argument that the nature of Rouse’s sentence should affect the equitable tolling analysis, both Rouse and the dissent argue that we should follow the Third Circuit’s decision in Fahy v. Horn, 240 F.3d 239 (3d Cir.2001), and allow “‘less than “extraordinary” circumstances to trigger equitable tolling’ ” in capital cases because “death is different.” (Appellant’s Br. at 31 (quoting Fahy, 240 F.3d at 245)); post at 264-265. Neither Supreme Court precedent nor precedent from this court supports applying a different test to capital cases on collateral review.

Although Rouse’s underlying claims pertain to his trial, we deal here only with the application of the AEDPA limitations period. While it is undeniable that the Supreme Court has treated death differently, any distinctions between the procedures required in capital and noncapital cases “are primarily relevant to trial,” and the Supreme Court “has generally rejected attempts to expand any [such] distinctions further.”¹⁸ Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 281, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (plurality opinion); see, e.g., Herrera v. Collins, 506 U.S. 390, 405, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Murray v. Giarratano, 492 U.S. 1, 8-10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (plurality opinion); Satterwhite v. Texas, 486 U.S. 249, 256-58, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Smith v. Murray, 477 U.S. 527, 538-39, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). The Court has, for example, refused to create a special death penalty exception to the traditional harmless error standard of appellate review set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Satterwhite, 486 U.S. at 256-58, 108 S.Ct. 1792. Satterwhite illustrates that even though capital defendants might be entitled to heightened procedural safeguards at trial, the standard of appellate review does not change solely because a capital sentence has been imposed. While recognizing that capital defendants have a constitutional right to consult with counsel prior to submitting to a psychiatric examination that would determine future dangerousness, see id. at 254, 108 S.Ct. 1792, when addressing a violation of this constitutional right, the Court held that traditional harmless error analysis applied even in the capital context. See id. at 258, 108 S.Ct. 1792. That is, death made a difference in terms of what procedures the state had to employ at trial but not in the appellate standard of review.

In addition, the Supreme Court has repeatedly declined to treat death differently in the post-conviction context. In Smith v. Murray, a capital case, the Court specifically rejected the claim that the principles governing procedural default “apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws.” Smith, 477 U.S. at 538, 106 S.Ct. 2661. Similarly, in Giarratano, the Court concluded that “the rule of Pennsylvania v. Finley [that there is no' constitutional right to counsel in state post-conviction proceedings] should apply no differently in capital cases than in non-capital cases.” Giarratano, 492 U.S. at 10, 109 S.Ct. 2765 (plurality opinion); see also Herrera, 506 U.S. at 405, 113 S.Ct. 853 (holding that claims of actual innocence are not grounds for habeas relief even in a capital case and noting that “we have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habe-as corpus’ ” (quoting Giarratano, 492 U.S. at 9, 109 S.Ct. 2765 (plurality opinion))); cf. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (applying, in a capital case, the general requirement of cause and prejudice to overcome a state procedural bar).

The cases cited by my dissenting colleagues are not to the contrary. For example, quoting California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the dissent states that “the Supreme Court has emphasized [that] ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,’that is, ‘the procedure by which the State imposes the death sentence,’ to ‘ensur[e] that the death penalty is not meted out arbitrarily or capriciously.’ ” Post at 36. As this quotation reveals, “the Court’s principal concern has been more with the procedure by which the State imposes the sentence.” Ramos, 463 U.S. at 999, 103 S.Ct. 3446. This fits nicely with the decisions quoted above, which acknowledge that heightened procedural safeguards may be necessary at trial.

Moreover, those cases cited by the dissent that discuss appellate decision-making do not support the dissent’s position that, in capital cases, the doctrine of equitable tolling allows courts to rewrite the AED-PA statute of limitations. For example, my dissenting colleagues contend that “the Supreme Court itself has, ‘in the interests of justice,’ been willing to overlook requirements that it would ordinarily impose in non-capital cases.” Post at 263 (citing Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 71 L.Ed.2d 1 n. * (1982) (O’Connor, J., concurring)). Justice O’Connor’s discussion, however, as the dissent notes, pertained to the question of whether an argument had been waived' below, not the far more serious matter of whether to apply a narrow equitable exception to a statutory limitations period enacted by Congress and absolute by its terms.¹⁹

The dissent also quotes Justice Scalia’s concurrence in Dobbs v. Zant, 506 U.S. 357, 360, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993): “I am willing to make an exception from that [previously stated 'general’ internal] rule in capital cases — but only where there is a realistic likelihood that the ‘technical error’ affected the conviction or the sentence” Post at 262-263 (emphasis and alterations supplied by dissent). The “previously stated ‘general’ internal” rule to which the quoted passage refers, however, is simply the Court’s internal presumption against granting certiorari in cases that have little importance beyond the parties involved; Justice Scalia certainly did not say that exceptions should be made to the equitable tolling analysis on habeas review of capital cases.

In fact, relaxing the statute of limitations in capital cases would contradict one of the main purposes of the AEDPA which was “to reduce delays in the execution of state and federal criminal sentences, particularly capital cases.” Woodford v. Garceau, — U.S. -, 123 S.Ct. at 1401 (emphasis added); see also Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (noting the AEDPA’s “statutory purpose of encouraging prompt filings in federal court in order to protect the federal system from being forced to hear stale claims”). An equitable tolling analysis that encouraged judicial subversion of Congress’s limitation on federal habeas and devolved into a wide ranging inquiry into the proceedings of the state trial court and habeas court would undermine the “principles of comity, finality, and federalism” that animate the AEDPA. See Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

Because we deal today with the district court’s decision on habeas review not to toll the AEDPA limitations period, rather than with state capital procedures at trial or sentencing, we hold that Rouse’s death sentence does not change the test we apply to determine if equitable tolling is warranted.²⁰

III.

The delay involved in filing this petition may seem small but the principles at issue are large. My dissenting colleagues would abandon our existing extraordinary circumstances test in favor of a wide-ranging inquiry into a variety of factors other than the reasons why the petitioner did not comply with the statutory time limitation. This approach would make application of the statute of limitations to an individual case unpredictable and indeterminate and essentially would disregard the balance that Congress has struck between the need for habeas review and the need for comity, finality, and federalism. In short, we are being asked here not to follow the law, but essentially to recreate it. For these reasons, we held in Harris v. Hutchinson, that “any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes.” Harris, 209 F.3d at . Because Rouse’s attorneys could have filed his petition on time, but simply failed to do so, he is not entitled to equitable tolling.

For the foregoing reasons, we hold that Rouse’s state post-conviction review was no longer pending as of February 5, 1999, when the Supreme Court of North Carolina denied his petition for certiorari, and thus, that he is not entitled to 'statutory tolling beyond that date. Because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the AEDPA statute of limitations, he is not entitled to equitable tolling. Accordingly, Rouse’s petition was filed after the expiration of the limitations period, and we affirm the district court’s dismissal of Rouse’s petition as untimely.

AFFIRMED

1

. Rouse named R.C. Lee, Warden of Central Prison, as the Respondent in his petition. For ease of reference, we refer to Respondent as “the State.”

2

. Rouse raised in the state MAR court the same claim of juror misconduct that he attempts to raise in this federal habeas petition, alleging that a juror failed to volunteer information that his mother had been the victim of a violent crime and that the same juror falsely answered voir dire questions regarding his views on race. The state MAR court found that the juror was never asked any individual questions regarding whether any member of his family had been a victim of violent crime and that the acoustics in the trial courtroom made hearing difficult, such that the juror did not hear the questions directed to the entire group. State v. Rouse, Nos. 91-CRS-3316-17, 92-CRS-2 (N.C.Super.Ct. Aug. 2, 1996) (unpublished), (Supp. J.A. at 294, 297). The state MAR court also found that defense counsel was given an unlimited opportunity to voir dire the juror about his views on race, the juror answered all questions asked of him, and no evidence showed that the juror lied in answering the questions or that the juror was biased at the time of voir dire. Id., (Supp. J.A. at 294-95, 306-07). Accordingly, the state MAR court denied relief.

3

. Specifically, the intervening legislation was "An Act to Expedite the Postconviction Pro- . cess in North Carolina," ratified by the General Assembly on June 21, 1996. Among other things, the Act amended N.C.G.S. § ISA-1415 to add a new subsection regarding the extent of disclosure of prosecution and law enforcement investigative files required in the post-conviction process in capital cases. See State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998).

4

. Although the date reflected in the published opinion is February 4, 1999, see State v. Rouse, 350 N.C. 104, 531 S.E.2d 830 (1999), the record reflects, and the State concedes, that the order was actually entered on February 5, 1999.

5

. At the time Rouse filed his petition, Rule 6(e) stated in its entirety:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the'prescribed period.

Fed.R.Civ.P. 6(e) (2000) (emphases added).

6

. In the non-habeas context, we review the district court’s denial of equitable tolling for an abuse of discretion. See, e.g., Chao v. Va. Dep’t of Transp., 291 F.3d 276, 279-80 (4th Cir.2002).

7

. Compare Fierro v. Cockrell, 294 F.3d 674, 679 (5th Cir.2002) (applying abuse of discretion review), cert. denied, - U.S. -, 123 S.Ct. 1621, 155 L.Ed.2d 489 (2003); Delaney v. Matesanz, 264 F.3d 7, 13 (1st Cir.2001) (same); and Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.2001) (same), cert. denied, 535 U.S. 973, 122 S.Ct. 1442, 152 L.Ed.2d 385 (2002), with Helton v. Sec’y for Dep’t of Corrections, 259 F.3d 1310, 1312 (11th Cir.2001) (applying de novo review); United States v. Saro, 252 F.3d 449, 455 n. 9 (D.C.Cir.2001) (same), cert. denied, 534 U.S. 1149, 122 S.Ct. 1111, 151 L.Ed.2d 1005 (2002); Jihad v. Hvass, 267 F.3d 803, 806 n. 3 (8th Cir.2001) (same); Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir.) (same), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001); and Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) (same).

8

. Because we review this case on appeal from the district court's grant of the State’s motion to dismiss, we, like the district court, must assume all facts pleaded by Rouse to be true. Trulock v. Freeh, 275 F.3d 391, 399 (4th Cir.2001).

9

. See United States v. Saro, 252 F.3d at 455 n. 9 (examining “whether the court was 'correct,’ rather than whether it ‘abused its discretion,' because we employ de novo review when a district court holds ... that the facts cannot justify equitable tolling as a matter of law”); Jihad v. Hvass, 267 F.3d at 806 n. 3 (applying de novo review because district court treated equitable tolling as an issue of law); Dunlap v. United States, 250 F.3d at 1007 n. 2 ("[W]e hold that where the facts are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, we apply the de novo standard of review to a district court’s refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse of discretion standard.”); Miles v. Prunty, 187 F.3d at 1105 ("[W]here, as here, the facts are undisputed as to the question of equitable tolling, we review de novo.”).

10

. Abuse of discretion review applies because the district court found that, accepting all of the facts Rouse pled about his health to be true, his medical condition did not amount to an extraordinary circumstance beyond his control that prevented him from filing because he was not in "any way incompetent for a substantial part of the [limitations period].” (J.A. at 331.)

11

. Although the Third Circuit allowed equitable tolling based on attorney error in Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 L.Ed.2d 241 (2001), it was not based on a finding that the attorney error constituted extraordinary circumstances. Instead, the Third Circuit created a different test that applies only to capital cases. We address the Third Circuit’s holding in Fahy below.

12

. The dissent contends that Rouse's former habeas counsel were not his agents because of Rouse’s limited mental ability and because of the "bewildering complexity of the habeas corpus rules.” Post at 259 n. 3. We have found no support for the proposition that, during the course of representation, lawyers are only sometimes the agents of their clients. Based on a post-indictment neuropsychological evaluation of Rouse, the state trial court found that Rouse was competent to stand trial. Rouse does not challenge this finding, and the dissent does not suggest that Rouse at some later time became incompetent. It is undisputed that Rouse did not seek to represent himself in filing his federal habeas petition. Instead, Rouse knowingly and voluntarily chose to be represented by counsel, and he bears the risk of the error of that counsel. See Murray v. Carrier, 477 U.S. 478, 482, 487, 106 S.Ct. 2639 (1986) (habeas petitioner was bound by court-appointed attorney’s failure to raise argument in state court even though attorney submitted petition without consulting petitioner and the omission was inadvertent).

13

. Rouse argues that he did not "condone, ratify, encourage, or otherwise agree” with the late filing. (J.A. at 356.) As discussed in the text, whether Rouse participated in the decision is irrelevant. Moreover, the costs of undermining the statute of limitations would be the same if the error "stem[med] from counsel’s ignorance or inadvertence rather than from a deliberate decision.” Carrier, 477 U.S. at 487, 106 S.Ct. 2639. Thus, viewing the facts in the light most favorable to Rouse, assuming that he relied on counsel to timely file his petition and that he did not participate in any decision to file on February 8, he nonetheless is not entitled to equitable tolling because he bears the risk of attorney error, and such error is attributable to him.

14

. Rouse relies heavily on McLaughlin v. Lee, No. 5:99-HC-436 (E.D.N.C. Oct. 17, 2000) (unpublished), in which the district court equitably tolled the one-year limitations period. In that case, McLaughlin’s attorneys, as the district court emphasized, "did not make a ‘mistake’ as to the statutory requirements. Instead, they failed to take any action at all.” Id. at 7. The court concluded that McLaughlin's attorneys placed him "in the extraordinary situation of believing that he had counsel when, in fact, he had counsel in name only.” Id.

Even assuming that such utter abandonment constitutes extraordinary circumstances "external to the party's own conduct,” Harris, 209 F.3d at 330, justifying equitable tolling, those circumstances are not present here. Despite Rouse’s attempts to characterize his prior attorneys’ conduct as "grossly negligent” and thus akin to such abandonment, it is simply not true that Rouse’s attorneys took no action at all. They filed the petition, albeit one day late. Theirs was an ordinary legal error to which the principles of equitable tolling do not apply.

15

. It seems curiously circular to say, as it appears my dissenting colleagues would, that we consider the merits in deciding whether we can consider the merits. We note, however, that even if we were to agree that the strength of the claims in a petition should affect a court’s decision to invoke equitable tolling, Rouse’s claims, evaluated in light of the deference that we statutorily are required to give to state court factual findings and conclusions of law, are far from strong. See 28 U.S.C.A. §§ 2254(d), (e)(1); see also Rouse v. Lee, 314 F.3d 698, 719-20 (4th Cir.2003) (vacated panel opinion) (Williams, J., dissenting) (discussing factual findings and conclusions of law of the state MAR court). The dissent concludes otherwise by relying solely on Rouse's allegations, giving short shrift to the factual findings of the state MAR court and the deference federal habeas courts owe to state courts. As noted supra at 242 and note 2, the state MAR court rejected Rouse’s juror misconduct claim after considering over 100 pages of evidence. Contrary to the dissent’s assertion, post at 32-33 n. 4, the state MAR court’s factual findings were based on the evidence that Rouse and the State presented to the court and judicial notice regarding the acoustics in the trial courtroom. These factual findings are presumed correct. 28 U.S.C.A. § 2254(e)(1).

16

. Contrary to the dissent’s assertion, post at 260, Spencer v. Sutton does not suggest that the strength of the claim in a habeas petition affects the decision whether to equitably toll the limitations period.

17

. As the dissent points out, the Federal Rules Governing Section 2254 Cases support the conclusion that the merits of the underlying claim are not part of the equitable tolling analysis. See post at 258 n. 1. Because the State does not file a. copy of the decision of the state post-conviction court in the federal district court until it files its answer, Fed. R. Governing Section 2254 Cases 5, a motion to dismiss a petition as untimely will often be before the federal district court before the state post-conviction decision is filed. Thus, the Rules contemplate that the federal court may rule without considering the merits because the court certainly could not consider the merits of the underlying claims without the benefit of the state post-conviction decision, to which federal habeas courts owe considerable deference. 28 U.S.C.A. §§ 2254(d), (e)(1).

18

. Similarly, the cases cited by the dissent, post at 261, for the proposition that "death is different" involve heightened procedures necessary at trial or sentencing. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2441-42, 153 L.Ed.2d 556 (2002) (declining to "differentiate capital cases from all others” and holding that "facts increasing punishment beyond the maximum authorized by a guilty verdict standing alone ... must be found by a jury”); Thompson v. Oklahoma, 487 U.S. 815, 877-78, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (Scalia, J., dissenting) (considering whether capital punishment of fifteen year old violates Eighth Amendment); Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (holding that capital sentence is not valid "when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case”); Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (holding that the judge cannot "impose the death sentence on the basis of confidential information which is not disclosed to the defendant or his counsel”); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion) (holding that mandatory death sentences for first-degree murder are unconstitutional); Bracy v. Schomig, 286 F.3d 406, 415 (7th Cir.2002) (en banc) (evaluating judge's actions during sentencing phase of trial), cert. denied, 537 U.S. 894, 123 S.Ct. 169 (2002); see also Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding that individualized sentencing is not required for non-capital cases).

19

. The dissent also suggests that the majority opinion in Eddings v. Oklahoma stands for the proposition that "the Court has treated the requirement that an argument be raised below ... as merely ‘technical!].’ " Post at 262-263 (citing Eddings majority opinion). The majority opinion in Eddings stands for no such proposition. The Court did not, as is implied by the dissent, waive the requirement that arguments be presented below in order to preserve appellate review. Instead, the Court found "that in his petition to the Court of Criminal Appeals for a rehearing, Eddings specifically presented the issue and at some considerable length.” Eddings v. Oklahoma, 455 U.S. 104, 113 n. 9, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

20

. Other courts have also denied equitable tolling in capital cases, applying the same test as they apply in non-capital cases. See, e.g., Fierro, 294 F.3d at 682-84 (denying equitable tolling based on "mistaken assumption” regarding statute of limitations); Lookingbill v. Cockrell, 293 F.3d 256, 263-65 (5th Cir.2002) (denying equitable tolling for "garden variety claim[s] of excusable neglect”), cert. denied, 537 U.S. 1116, 123 S.Ct 878, 154 L.Ed.2d 793 (2003); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.2000) (holding that "counsel’s confusion about the applicable statute of limitations does not warrant equitable tolling”); Cantu-Tzin v. Johnson, 162 F.3d 295, 299-300 (5th Cir.1998) (concluding that equitable tolling of the AEDPA limitations period was not available to a petitioner who was responsible for missing the deadline).