Holland v. Florida

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HOLLAND v. FLORIDA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT

No. 09–5327. Argued March 1, 2010—Decided June 14, 2010
Petitioner Holland was convicted of first-degree murder and sentenced
to death in Florida state court. After the State Supreme Court af
firmed on direct appeal and denied collateral relief, Holland filed a
pro se federal habeas corpus petition, which was approximately five
weeks late under the 1-year statute of limitations set forth in the An
titerrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
U. S. C. §2244(d). The record facts reveal, inter alia, that Holland’s
court-appointed attorney, Bradley Collins, had failed to file a timely
federal petition, despite Holland’s many letters emphasizing the im
portance of doing so; that Collins apparently did not do the research
necessary to find out the proper filing date, despite the fact that Hol
land had identified the applicable legal rules for him; that Collins
failed to inform Holland in a timely manner that the State Supreme
Court had decided his case, despite Holland’s many pleas for that in
formation; and that Collins failed to communicate with Holland over
a period of years, despite Holland’s pleas for responses to his letters.
Meanwhile, Holland repeatedly requested that the state courts and
the Florida bar remove Collins from his case. Based on these and
other record facts, Holland asked the Federal District Court to toll
the AEDPA limitations period for equitable reasons. It refused, hold
ing that he had not demonstrated the due diligence necessary to in
voke equitable tolling. Affirming, the Eleventh Circuit held that, re
gardless of diligence, Holland’s case did not constitute “extraordinary
circumstances.” Specifically, it held that when a petitioner seeks to
excuse a late filing based on his attorney’s unprofessional conduct,
that conduct, even if grossly negligent, cannot justify equitable toll
ing absent proof of bad faith, dishonesty, divided loyalty, mental im
pairment, or the like.
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Syllabus

Held:
1. Section 2244(d), the AEDPA statute of limitations, is subject to
equitable tolling in appropriate cases. Pp. 12–21.
(a) Several considerations support the Court’s holding. First, be
cause AEDPA’s “statute of limitations defense . . . is not ‘jurisdic
tional,’ ” Day v. McDonough, 547 U. S. 198, 205, 213, it is subject to a
“rebuttable presumption” in favor “of equitable tolling,” Irwin v. De
partment of Veterans Affairs, 498 U. S. 89, 95–96. That presump
tion’s strength is reinforced here by the fact that “equitable princi
ples” have traditionally “governed” substantive habeas law. Munaf v.
Geren, 553 U. S. 674, ___, and the fact that Congress enacted AEDPA
after Irwin and therefore was likely aware that courts, when inter
preting AEDPA’s timing provisions, would apply the presumption,
see, e.g., Merck & Co. v. Reynolds, 559 U. S. ___, ___. Second,
§2244(d) differs significantly from the statutes at issue in United
States v. Brockamp, 519 U. S. 347, 350–352, and United States v.
Beggerly, 524 U. S. 38, 49, in which the Court held that Irwin’s pre
sumption had been overcome. For example, unlike the subject mat
ters at issue in those cases—tax collection and land claims—
AEDPA’s subject matter, habeas corpus, pertains to an area of the
law where equity finds a comfortable home. See Munaf, supra, at
___. Brockamp, supra, at 352, distinguished. Moreover, AEDPA’s
limitations period is neither unusually generous nor unusually com
plex. Finally, the Court disagrees with respondent’s argument that
equitable tolling undermines AEDPA’s basic purpose of eliminating
delays in the federal habeas review process, see, e.g., Day, supra, at
205–206. AEDPA seeks to do so without undermining basic habeas
corpus principles and by harmonizing the statute with prior law, un
der which a petition’s timeliness was always determined under equi
table principles. See, e.g., Slack v. McDaniel, 529 U. S. 473, 483.
Such harmonization, along with the Great Writ’s importance as the
only writ explicitly protected by the Constitution, counsels hesitancy
before interpreting AEDPA’s silence on equitable tolling as congres
sional intent to close courthouse doors that a strong equitable claim
would keep open. Pp. 12–16.
(b) The Eleventh Circuit’s per se standard is too rigid. A “peti
tioner” is “entitled to equitable tolling” if he shows “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way” and prevented timely filing. Pace v.
DiGuglielmo, 544 U. S. 408, 418. Such “extraordinary circumstances”
are not limited to those that satisfy the Eleventh Circuit’s test.
Courts must often “exercise [their] equity powers . . . on a case-by
case basis,” Baggett v. Bullitt, 377 U. S. 360, 375, demonstrating
“flexibility” and avoiding “mechanical rules,” Holmberg v. Armbrecht,
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Syllabus

327 U. S. 392, 396, in order to “relieve hardships . . . aris[ing] from a
hard and fast adherence” to more absolute legal rules, Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 248. The Court’s
cases recognize that equity courts can and do draw upon decisions
made in other similar cases for guidance, exercising judgment in light
of precedent, but with awareness of the fact that specific circum
stances, often hard to predict, could warrant special treatment in an
appropriate case. Coleman v. Thompson, 501 U. S. 722, 753, distin
guished. No pre-existing rule of law or precedent demands the Elev
enth Circuit’s rule. That rule is difficult to reconcile with more gen
eral equitable principles in that it fails to recognize that, at least
sometimes, an attorney’s unprofessional conduct can be so egregious
as to create an extraordinary circumstance warranting equitable toll
ing, as several other federal courts have specifically held. Although
equitable tolling is not warranted for “a garden variety claim of ex
cusable neglect,” Irwin, supra, at 96, this case presents far more seri
ous instances of attorney misconduct than that. Pp. 16–19.
2. While the record facts suggest that this case may well present
“extraordinary” circumstances, the Court does not state its conclusion
absolutely because more proceedings may be necessary. The District
Court incorrectly rested its ruling not on a lack of such circum
stances, but on a lack of diligence. Here, Holland diligently pursued
his rights by writing Collins numerous letters seeking crucial infor
mation and providing direction, by repeatedly requesting that Collins
be removed from his case, and by filing his own pro se habeas petition
on the day he learned his AEDPA filing period had expired. Because
the District Court erroneously concluded that Holland was not dili
gent, and because the Court of Appeals erroneously relied on an
overly rigid per se approach, no lower court has yet considered
whether the facts of this case indeed constitute extraordinary cir
cumstances sufficient to warrant equitable tolling. The Eleventh
Circuit may determine on remand whether such tolling is appropri
ate, or whether an evidentiary hearing and other proceedings might
indicate that the State should prevail. Pp. 19–21.
539 F. 3d 1334, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, GINSBURG, and SOTOMAYOR, JJ., joined.
ALITO, J., filed an opinion concurring in part and concurring in the
judgment. SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,
joined as to all but Part I.
 Cite as: 560 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–5327
_________________

ALBERT HOLLAND, PETITIONER v. FLORIDA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 14, 2010]

JUSTICE BREYER delivered the opinion of the Court.
We here decide that the timeliness provision in the
federal habeas corpus statute is subject to equitable toll
ing. See Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U. S. C. §2244(d). We also consider its
application in this case. In the Court of Appeals’ view,
when a petitioner seeks to excuse a late filing on the basis
of his attorney’s unprofessional conduct, that conduct,
even if it is “negligent” or “grossly negligent,” cannot “rise
to the level of egregious attorney misconduct” that would
warrant equitable tolling unless the petitioner offers
“proof of bad faith, dishonesty, divided loyalty, mental
impairment or so forth.” 539 F. 3d 1334, 1339 (CA11
2008) (per curiam). In our view, this standard is too rigid.
See Irwin v. Department of Veterans Affairs, 498 U. S. 89,
96 (1990); see also Lawrence v. Florida, 549 U. S. 327, 336
(2007). We therefore reverse the judgment of the Court of
Appeals and remand for further proceedings.
I
AEDPA states 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
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Opinion of the Court

court.” §2244(d)(1). It also says that “[t]he time during
which a properly filed application for State post-conviction
. . . review” is “pending shall not be counted” against the 1
year period. §2244(d)(2).
On January 19, 2006, Albert Holland filed a pro se
habeas corpus petition in the Federal District Court for
the Southern District of Florida. Both Holland (the peti
tioner) and the State of Florida (the respondent) agree
that, unless equitably tolled, the statutory limitations
period applicable to Holland’s petition expired approxi
mately five weeks before the petition was filed. See Brief
for Respondent 9, and n. 7; Brief for Petitioner 5, and n. 4.
Holland asked the District Court to toll the limitations
period for equitable reasons. We shall set forth in some
detail the record facts that underlie Holland’s claim.
A
In 1997, Holland was convicted of first-degree murder
and sentenced to death. The Florida Supreme Court
affirmed that judgment. Holland v. State, 773 So. 2d 1065
(Fla. 2000). On October 1, 2001, this Court denied Hol
land’s petition for certiorari. 534 U. S. 834. And on that
date—the date that our denial of the petition ended fur
ther direct review of Holland’s conviction—the 1-year
AEDPA limitations clock began to run. See 28 U. S. C.
§2244(d)(1)(A); Jimenez v. Quarterman, 555 U. S. ___, ___
(2009) (slip op., at 6).
Thirty-seven days later, on November 7, 2001, Florida
appointed attorney Bradley Collins to represent Holland
in all state and federal postconviction proceedings. Cf.
Fla. Stat. §§27.710, 27.711(2) (2007). By September 19,
2002—316 days after his appointment and 12 days before
the 1-year AEDPA limitations period expired—Collins,
acting on Holland’s behalf, filed a motion for postconvic
tion relief in the state trial court. Cf. Brief for Respondent
9, n. 7. That filing automatically stopped the running of
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the AEDPA limitations period, §2244(d)(2), with, as we
have said, 12 days left on the clock.
For the next three years, Holland’s petition remained
pending in the state courts. During that time, Holland
wrote Collins letters asking him to make certain that all of
his claims would be preserved for any subsequent federal
habeas corpus review. Collins wrote back, stating, “I
would like to reassure you that we are aware of state-time
limitations and federal exhaustion requirements.” App.
55. He also said that he would “presen[t] . . . to the . . .
federal courts” any of Holland’s claims that the state
courts denied. Ibid. In a second letter Collins added,
“should your Motion for Post-Conviction Relief be denied”
by the state courts, “your state habeas corpus claims will
then be ripe for presentation in a petition for writ of ha
beas corpus in federal court.” Id., at 61.
In mid-May 2003 the state trial court denied Holland
relief, and Collins appealed that denial to the Florida
Supreme Court. Almost two years later, in February
2005, the Florida Supreme Court heard oral argument in
the case. See 539 F. 3d, at 1337. But during that 2-year
period, relations between Collins and Holland began to
break down. Indeed, between April 2003 and January
2006, Collins communicated with Holland only three
times—each time by letter. See No. 1:06–cv–20182–PAS
(SD Fla., Apr. 27, 2007), p. 7, n. 6 (hereinafter District
Court opinion), App. 91, n. 6.
Holland, unhappy with this lack of communication,
twice wrote to the Florida Supreme Court, asking it to
remove Collins from his case. In the second letter, filed on
June 17, 2004, he said that he and Collins had experi
enced “a complete breakdown in communication.” App.
160. Holland informed the court that Collins had “not
kept [him] updated on the status of [his] capital case” and
that Holland had “not seen or spoken to” Collins “since
April 2003.” Id., at 150. He wrote, “Mr. Collins has aban
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Opinion of the Court

doned [me]” and said, “[I have] no idea what is going on
with [my] capital case on appeal.” Id., at 152. He added
that “Collins has never made any reasonable effort to
establish any relationship of trust or confidence with
[me],” id., at 155, and stated that he “does not trust” or
have “any confidence in Mr. Collin’s ability to represent
[him],” id., at 152. Holland concluded by asking that
Collins be “dismissed (removed) off his capital case” or
that he be given a hearing in order to demonstrate Collins’
deficiencies. Id., at 155, 161. The State responded that
Holland could not file any pro se papers with the court
while he was represented by counsel, including papers
seeking new counsel. Id., at 42–45. The Florida Supreme
Court agreed and denied Holland’s requests. Id., at 46.
During this same period Holland wrote various letters to
the Clerk of the Florida Supreme Court. In the last of
these he wrote, “[I]f I had a competent, conflict-free, post
conviction, appellate attorney representing me, I would not
have to write you this letter. I’m not trying to get on your
nerves. I just would like to know exactly what is happen
ing with my case on appeal to the Supreme Court of Flor
ida.” Id., at 147. During that same time period, Holland
also filed a complaint against Collins with the Florida Bar
Association, but the complaint was denied. Id., at 65–67.
Collins argued Holland’s appeal before the Florida
Supreme Court on February 10, 2005. 539 F. 3d, at 1337.
Shortly thereafter, Holland wrote to Collins emphasizing
the importance of filing a timely petition for habeas corpus
in federal court once the Florida Supreme Court issued its
ruling. Specifically, on March 3, 2005, Holland wrote:
“Dear Mr. Collins, P. A.:
“How are you? Fine I hope.
“I write this letter to ask that you please write me
back, as soon as possible to let me know what the
status of my case is on appeal to the Supreme Court of
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Opinion of the Court

Florida.
“If the Florida Supreme Court denies my [postcon
viction] and State Habeas Corpus appeals, please file
my 28 U. S. C. 2254 writ of Habeas Corpus petition,
before my deadline to file it runs out (expires).
“Thank you very much.
“Please have a nice day.” App. 210 (emphasis
added).
Collins did not answer this letter.
On June 15, 2005, Holland wrote again:
“Dear Mr. Collins:
“How are you? Fine I hope.
“On March 3, 2005 I wrote you a letter, asking that
you let me know the status of my case on appeal to the
Supreme Court of Florida.
“Also, have you begun preparing my 28 U. S. C.
§2254 writ of Habeas Corpus petition? Please let me
know, as soon as possible.
“Thank you.” Id., at 212 (emphasis added).
But again, Collins did not reply.
Five months later, in November 2005, the Florida Su
preme Court affirmed the lower court decision denying
Holland relief. Holland v. State, 916 So. 2d 750 (per cu
riam). Three weeks after that, on December 1, 2005, the
court issued its mandate, making its decision final. 539
F. 3d, at 1337. At that point, the AEDPA federal habeas
clock again began to tick—with 12 days left on the 1-year
meter. See Coates v. Byrd, 211 F. 3d 1225 (CA11 2000)
(per curiam) (AEDPA clock restarts when state court
completes postconviction review); Lawrence, 549 U. S. 327
(same). Twelve days later, on December 13, 2005, Hol
land’s AEDPA time limit expired.
B
Four weeks after the AEDPA time limit expired, on
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January 9, 2006, Holland, still unaware of the Florida
Supreme Court ruling issued in his case two months ear
lier, wrote Collins a third letter:
“Dear Mr. Bradley M. Collins:
“How are you? Fine I hope.
“I write this letter to ask that you please let me
know the status of my appeals before the Supreme
Court of Florida. Have my appeals been decided yet?
“Please send me the [necessary information] . . . so
that I can determine when the deadline will be to file
my 28 U. S. C. Rule 2254 Federal Habeas Corpus Pe
tition, in accordance with all United States Supreme
Court and Eleventh Circuit case law and applicable
‘Antiterrorism and Effective Death Penalty Act,’ if my
appeals before the Supreme Court of Florida are de
nied.
“Please be advised that I want to preserve my privi
lege to federal review of all of my state convictions
and sentences.
“Mr. Collins, would you please also inform me as to
which United States District Court my 28 U. S. C.
Rule 2254 Federal Habeas Corpus Petition will have
to be timely filed in and that court’s address?
“Thank you very much.” App. 214.
Collins did not answer.
Nine days later, on January 18, 2006, Holland, working
in the prison library, learned for the first time that the
Florida Supreme Court had issued a final determination
in his case and that its mandate had issued—five weeks
prior. 539 F. 3d, at 1337. He immediately wrote out his
own pro se federal habeas petition and mailed it to the
Federal District Court for the Southern District of Florida
the next day. Ibid. The petition begins by stating,
“Comes now Albert R. Holland, Jr., a Florida death
row inmate and states that court appointed counsel
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Opinion of the Court

has failed to undertake timely action to seek Federal
Review in my case by filing a 28 U. S. C. Rule 2254
Petition for Writ of Habeas Corpus on my behalf.”
App. 181.
It then describes the various constitutional claims that
Holland hoped to assert in federal court.
The same day that he mailed that petition, Holland
received a letter from Collins telling him that Collins
intended to file a petition for certiorari in this Court from
the State Supreme Court’s most recent ruling. Holland
answered immediately:
“Dear Mr. Bradley M. Collins:
. . . . .
“Since recently, the Supreme Court of Florida has
denied my [postconviction] and state writ of Habeas
Corpus Petition. I am left to understand that you are
planning to seek certiorari on these matters.
“It’s my understanding that the AEDPA time limi
tations is not tolled during discretionary appellate re
views, such as certiorari applications resulting from
denial of state post conviction proceedings.
“Therefore, I advise you not to file certiorari if doing
so affects or jeopardizes my one year grace period as
prescribed by the AEDPA.
“Thank you very much.” Id., at 216 (some emphasis
deleted).
Holland was right about the law. See Coates, supra, at
1226–1227 (AEDPA not tolled during pendency of petition
for certiorari from judgment denying state postconviction
review); accord, Lawrence v. Florida, 421 F. 3d 1221, 1225
(CA11 2005), aff’d, 549 U. S., at 331–336.
On January 26, 2006, Holland tried to call Collins from
prison. But he called collect and Collins’ office would not
accept the call. App. 218. Five days later, Collins wrote to
Holland and told him for the very first time that, as
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Opinion of the Court

Collins understood AEDPA law, the limitations period
applicable to Holland’s federal habeas application had in
fact expired in 2000—before Collins had begun to repre
sent Holland. Specifically, Collins wrote:
“Dear Mr. Holland:
“I am in receipt of your letter dated January 20,
2006 concerning operation of AEDPA time limitations.
One hurdle in our upcoming efforts at obtaining fed
eral habeas corpus relief will be that the one-year
statutory time frame for filing such a petition began to
run after the case was affirmed on October 5, 2000
[when your] Judgment and Sentence . . . were af
firmed by the Florida Supreme Court. However, it
was not until November 7, 2001, that I received the
Order appointing me to the case. As you can see, I
was appointed about a year after your case became fi
nal. . . .
“[T]he AEDPA time period [thus] had run before my
appointment and therefore before your [postconvic
tion] motion was filed.” Id., at 78–79 (emphasis
added).
Collins was wrong about the law. As we have said,
Holland’s 1-year limitations period did not begin to run
until this Court denied Holland’s petition for certiorari
from the state courts’ denial of relief on direct review,
which occurred on October 1, 2001. See 28 U. S. C.
§2244(d)(1)(A); Jimenez, 555 U. S., at ___ (slip op., at 6);
Bond v. Moore, 309 F. 3d 770, 774 (CA11 2002). And when
Collins was appointed (on November 7, 2001) the AEDPA
clock therefore had 328 days left to go.
Holland immediately wrote back to Collins, pointing this
out.
“Dear Mr. Collins:
“I received your letter dated January 31, 2006. You
are incorrect in stating that ‘the one-year statutory
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time frame for filing my 2254 petition began to run af
ter my case was affirmed on October 5, 2000, by the
Florida Supreme Court.’ As stated on page three of
[the recently filed] Petition for a writ of certiorari, Oc
tober 1, 2001 is when the United States Supreme
Court denied my initial petition for writ of certiorari
and that is when my case became final. That meant
that the time would be tolled once I filed my [postcon
viction] motion in the trial court.
“Also, Mr. Collins you never told me that my time
ran out (expired). I told you to timely file my 28
U. S. C. 2254 Habeas Corpus Petition before the dead
line, so that I would not be time-barred.
“You never informed me of oral arguments or of the
Supreme Court of Florida’s November 10, 2005 deci
sion denying my postconviction appeals. You never
kept me informed about the status of my case, al
though you told me that you would immediately in
form me of the court’s decision as soon as you heard
anything.
“Mr. Collins, I filed a motion on January 19, 2006
[in federal court] to preserve my rights, because I did
not want to be time-barred. Have you heard anything
about the aforesaid motion? Do you know what the
status of aforesaid motion is?
“Mr. Collins, please file my 2254 Habeas Petition
immediately. Please do not wait any longer, even
though it will be untimely filed at least it will be filed
without wasting anymore time. (valuable time).
“Again, please file my 2254 Petition at once.
“Your letter is the first time that you have ever
mentioned anything to me about my time had run out,
before you were appointed to represent me, and that
my one-year started to run on October 5, 2000.
“Please find out the status of my motion that I filed
on January 19, 2006 and let me know.
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Opinion of the Court

“Thank you very much.” App. 222–223.
Collins did not answer this letter. Nor did he file a federal
habeas petition as Holland requested.
On March 1, 2006, Holland filed another complaint
against Collins with the Florida Bar Association. See
Record, Doc. 41, Exh. 1, p. 8. This time the bar asked
Collins to respond, which he did, through his own attor
ney, on March 21. Id., at 2. And the very next day, over
three months after Holland’s AEDPA statute of limita
tions had expired, Collins mailed a proposed federal ha
beas petition to Holland, asking him to review it. See id.,
Doc. 20, Exh. W.
But by that point Holland had already filed a pro se
motion in the District Court asking that Collins be dis
missed as his attorney. App. 192. The State responded to
that request by arguing once again that Holland could not
file a pro se motion seeking to have Collins removed while
he was represented by counsel, i.e., represented by Collins.
See id., at 47–51. But this time the court considered
Holland’s motion, permitted Collins to withdraw from the
case, and appointed a new lawyer for Holland. See Re
cord, Docs. 9–10, 17–18, 22. And it also received briefing
on whether the circumstances of the case justified the
equitable tolling of the AEDPA limitations period for a
sufficient period of time (approximately five weeks) to
make Holland’s petition timely.
C
After considering the briefs, the Federal District Court
held that the facts did not warrant equitable tolling and
that consequently Holland’s petition was untimely. The
court, noting that Collins had prepared numerous filings
on Holland’s behalf in the state courts, and suggesting
that Holland was a difficult client, intimated, but did not
hold, that Collins’ professional conduct in the case was at
worst merely “negligent.” See District Court opinion 7–8,
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Opinion of the Court

App. 90–93. But the court rested its holding on an alter
native rationale: It wrote that, even if Collins’ “behavior
could be characterized as an ‘extraordinary circum
stance,’ ” Holland “did not seek any help from the court
system to find out the date [the] mandate issued denying
his state habeas petition, nor did he seek aid from ‘outside
supporters.’ ” Id., at 8, App. 92. Hence, the court held,
Holland did not “demonstrate” the “due diligence” neces
sary to invoke “equitable tolling.” Ibid.
On appeal, the Eleventh Circuit agreed with the District
Court that Holland’s habeas petition was untimely. The
Court of Appeals first agreed with Holland that
“ ‘[e]quitable tolling can be applied to . . . AEDPA’s statu
tory deadline.’ ” 539 F. 3d, at 1338 (quoting Helton v.
Secretary for Dept. of Corrections, 259 F. 3d 1310, 1312
(CA11 2001)). But it also held that equitable tolling could
not be applied in a case, like Holland’s, that involves no
more than “[p]ure professional negligence” on the part of a
petitioner’s attorney because such behavior can never
constitute an “extraordinary circumstance.” 539 F. 3d, at
1339. The court wrote:
“We will assume that Collins’s alleged conduct is neg
ligent, even grossly negligent. But in our view, no al
legation of lawyer negligence or of failure to meet a
lawyer’s standard of care—in the absence of an allega
tion and proof of bad faith, dishonesty, divided loyalty,
mental impairment or so forth on the lawyer’s part—
can rise to the level of egregious attorney misconduct
that would entitle Petitioner to equitable tolling.”
Ibid.
Holland made “no allegation” that Collins had made a
“knowing or reckless factual misrepresentation,” or that
he exhibited “dishonesty,” “divided loyalty,” or “mental
impairment.” Ibid. Hence, the court held, equitable toll
ing was per se inapplicable to Holland’s habeas petition.
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Opinion of the Court

The court did not address the District Court’s ruling with
respect to Holland’s diligence.
Holland petitioned for certiorari. Because the Court of
Appeals’ application of the equitable tolling doctrine to
instances of professional misconduct conflicts with the
approach taken by other Circuits, we granted the petition.
Compare 539 F. 3d 1334 (case below), with, e.g., Bal
dayaque v. United States, 338 F. 3d 145, 152–153 (CA2
2003) (applying a less categorical approach); Spitsyn v.
Moore, 345 F. 3d 796, 801–802 (CA9 2003) (same).
II
We have not decided whether AEDPA’s statutory limita
tions period may be tolled for equitable reasons. See
Lawrence, 549 U. S., at 336; Pace v. DiGuglielmo, 544
U. S. 408, 418, n. 8 (2005). Now, like all 11 Courts of
Appeals that have considered the question, we hold that
§2244(d) is subject to equitable tolling in appropriate
cases. See Neverson v. Farquharson, 366 F. 3d 32, 41
(CA1 2004); Smith v. McGinnis, 208 F. 3d 13, 17 (CA2
2000) (per curiam); Miller v. New Jersey Dept. of Correc
tions, 145 F. 3d 616, 617 (CA3 1998); Harris v. Hutchin
son, 209 F. 3d 325, 329–330 (CA4 2000); Davis v. Johnson,
158 F. 3d 806, 810 (CA5 1998); McClendon v. Sherman,
329 F. 3d 490, 492 (CA6 2003); Taliani v. Chrans, 189
F. 3d 597, 598 (CA7 1999); Moore v. United States, 173
F. 3d 1131, 1134 (CA8 1999); Calderon v. United States
Dist. Ct. for Central Dist. of Cal., 128 F. 3d 1283, 1289
(CA9 1997); Miller v. Marr, 141 F. 3d 976, 978 (CA10
1998); Sandvik v. United States, 177 F. 3d 1269, 1272
(CA11 1999) (per curiam).
We base our conclusion on the following considerations.
First, the AEDPA “statute of limitations defense . . . is not
‘jurisdictional.’ ” Day v. McDonough, 547 U. S. 198, 205
(2006). It does not set forth “an inflexible rule requiring
dismissal whenever” its “clock has run.” Id., at 208. See
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Opinion of the Court

also id., at 213 (SCALIA, J., dissenting) (“We have repeat
edly stated that the enactment of time-limitation periods
such as that in §2244(d), without further elaboration,
produces defenses that are nonjurisdictional and thus
subject to waiver and forfeiture” (citing cases)); Brief for
Respondent 22 (describing AEDPA limitations period as
“non-jurisdictional”).
We have previously made clear that a nonjurisdictional
federal statute of limitations is normally subject to a
“rebuttable presumption” in favor “of equitable tolling.”
Irwin, 498 U. S., at 95–96; see also Young v. United States,
535 U. S. 43, 49 (2002) (“It is hornbook law that limita
tions periods are ‘customarily subject to “equitable toll
ing” ’ ” (quoting Irwin, supra, at 95)).
In the case of AEDPA, the presumption’s strength is
reinforced by the fact that “ ‘equitable principles’ ” have
traditionally “ ‘governed’ ” the substantive law of habeas
corpus, Munaf v. Geren, 553 U. S. 674, 693 (2008), for we
will “not construe a statute to displace courts’ traditional
equitable authority absent the ‘clearest command,’ ” Miller
v. French, 530 U. S. 327, 340 (2000) (quoting Califano v.
Yamasaki, 442 U. S. 682, 705 (1979)). The presumption’s
strength is yet further reinforced by the fact that Congress
enacted AEDPA after this Court decided Irwin and there
fore was likely aware that courts, when interpreting
AEDPA’s timing provisions, would apply the presumption.
See, e.g., Merck & Co. v. Reynolds, 559 U. S. ___, ___
(2010) (slip op., at 12).
Second, the statute here differs significantly from the
statutes at issue in United States v. Brockamp, 519 U. S.
347 (1997), and United States v. Beggerly, 524 U. S. 38
(1998), two cases in which we held that Irwin’s presump
tion had been overcome. In Brockamp, we interpreted a
statute of limitations that was silent on the question of
equitable tolling as foreclosing application of that doctrine.
But in doing so we emphasized that the statute at issue (1)
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Opinion of the Court

“se[t] forth its time limitations in unusually emphatic
form”; (2) used “highly detailed” and “technical” language
“that, linguistically speaking, cannot easily be read as
containing implicit exceptions”; (3) “reiterate[d] its limita
tions several times in several different ways”; (4) related
to an “underlying subject matter,” nationwide tax collec
tion, with respect to which the practical consequences of
permitting tolling would have been substantial; and (5)
would, if tolled, “require tolling, not only procedural limi
tations, but also substantive limitations on the amount of
recovery—a kind of tolling for which we . . . found no
direct precedent.” 519 U. S., at 350–352. And in Beggerly
we held that Irwin’s presumption was overcome where (1)
the 12-year statute of limitations at issue was “unusually
generous” and (2) the underlying claim “deal[t] with own
ership of land” and thereby implicated landowners’ need to
“know with certainty what their rights are, and the period
during which those rights may be subject to challenge.”
524 U. S., at 48–49.
By way of contrast, AEDPA’s statute of limitations,
unlike the statute at issue in Brockamp, does not contain
language that is “unusually emphatic,” nor does it “re
iterat[e]” its time limitation. Neither would application of
equitable tolling here affect the “substance” of a peti
tioner’s claim. Moreover, in contrast to the 12-year limita
tions period at issue in Beggerly, AEDPA’s limitations
period is not particularly long. And unlike the subject
matters at issue in both Brockamp and Beggerly—tax
collection and land claims—AEDPA’s subject matter,
habeas corpus, pertains to an area of the law where equity
finds a comfortable home. See Munaf, supra, at 693. In
short, AEDPA’s 1-year limit reads like an ordinary, run-of
the-mill statute of limitations. See Calderon, supra, at
1288.
Respondent, citing Brockamp, argues that AEDPA
should be interpreted to foreclose equitable tolling because
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Opinion of the Court

the statute sets forth “explicit exceptions to its basic time
limits” that do “not include ‘equitable tolling.’ ” 519 U. S.,
at 351; see Brief for Respondent 27. The statute does
contain multiple provisions relating to the events that
trigger its running. See §2244(d)(1); Clay v. United States,
537 U. S. 522, 529 (2003); see also Cada v. Baxter Health
care Corp., 920 F. 2d 446, 450 (CA7 1990) (“We must . . .
distinguish between the accrual of the plaintiff’s claim and
the tolling of the statute of limitations . . .”); Wims v.
United States, 225 F. 3d 186, 190 (CA2 2000) (same);
Wolin v. Smith Barney Inc., 83 F. 3d 847, 852 (CA7 1996)
(same). And we concede that it is silent as to equitable
tolling while containing one provision that expressly refers
to a different kind of tolling. See §2244(d)(2) (stating that
“[t]he time during which” a petitioner has a pending re
quest for state postconviction relief “shall not be counted
toward” his “period of limitation” under AEDPA). But the
fact that Congress expressly referred to tolling during
state collateral review proceedings is easily explained
without rebutting the presumption in favor of equitable
tolling. A petitioner cannot bring a federal habeas claim
without first exhausting state remedies—a process that
frequently takes longer than one year. See Rose v. Lundy,
455 U. S. 509 (1982); §2254(b)(1)(A). Hence, Congress had
to explain how the limitations statute accounts for the
time during which such state proceedings are pending.
This special need for an express provision undermines any
temptation to invoke the interpretive maxim inclusio
unius est exclusio alterius (to include one item (i.e., sus
pension during state-court collateral review) is to exclude
other similar items (i.e., equitable tolling)). See Young,
supra, at 53 (rejecting claim that an “express tolling provi
sion, appearing in the same subsection as the [limitations]
period, demonstrates a statutory intent not to toll the
[limitations] period”).
Third, and finally, we disagree with respondent that
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Opinion of the Court

equitable tolling undermines AEDPA’s basic purposes.
We recognize that AEDPA seeks to eliminate delays in the
federal habeas review process. See Day, 547 U. S., at 205–
206; Miller-El v. Cockrell, 537 U. S. 322, 337 (2003). But
AEDPA seeks to do so without undermining basic habeas
corpus principles and while seeking to harmonize the new
statute with prior law, under which a petition’s timeliness
was always determined under equitable principles. See
Slack v. McDaniel, 529 U. S. 473, 483 (2000) (“AEDPA’s
present provisions . . . incorporate earlier habeas corpus
principles”); see also Day, 547 U. S., at 202, n. 1; id., at
214 (SCALIA, J., dissenting); 2 R. Hertz & J. Liebman,
Federal Habeas Corpus Practice and Procedure §24.2, pp.
1123–1136 (5th ed. 2005). 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 constitu
tional rights.” Slack, 529 U. S., at 483. It did not seek to
end every possible delay at all costs. Cf. id., at 483–488.
The importance of the Great Writ, the only writ explicitly
protected by the Constitution, Art. I, §9, cl. 2, along with
congressional efforts to harmonize the new statute with
prior law, counsels hesitancy before interpreting AEDPA’s
statutory silence as indicating a congressional intent to
close courthouse doors that a strong equitable claim would
ordinarily keep open.
For these reasons we conclude that neither AEDPA’s
textual characteristics nor the statute’s basic purposes
“rebut” the basic presumption set forth in Irwin. And we
therefore join the Courts of Appeals in holding that
§2244(d) is subject to equitable tolling.
III
We have previously made clear that a “petitioner” is
“entitled to equitable tolling” only if he shows “(1) that he
has been pursuing his rights diligently, and (2) that some
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Opinion of the Court

extraordinary circumstance stood in his way” and pre
vented timely filing. Pace, 544 U. S., at 418 (emphasis
deleted). In this case, the “extraordinary circumstances”
at issue involve an attorney’s failure to satisfy professional
standards of care. The Court of Appeals held that, where
that is so, even attorney conduct that is “grossly negligent”
can never warrant tolling absent “bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the
lawyer’s part.” 539 F. 3d, at 1339. But in our view, the
Court of Appeals’ standard is too rigid.
We have said that courts of equity “must be governed by
rules and precedents no less than the courts of law.”
Lonchar v. Thomas, 517 U. S. 314, 323 (1996) (internal
quotation marks omitted). But we have also made clear
that often the “exercise of a court’s equity powers . . . must
be made on a case-by-case basis.” Baggett v. Bullitt, 377
U. S. 360, 375 (1964). In emphasizing the need for “flexi
bility,” for avoiding “mechanical rules,” Holmberg v. Arm
brecht, 327 U. S. 392, 396 (1946), we have followed a tradi
tion in which courts of equity have sought to “relieve
hardships which, from time to time, arise from a hard and
fast adherence” to more absolute legal rules, which, if
strictly applied, threaten the “evils of archaic rigidity,”
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S.
238, 248 (1944). The “flexibility” inherent in “equitable
procedure” enables courts “to meet new situations [that]
demand equitable intervention, and to accord all the relief
necessary to correct . . . particular injustices.” Ibid. (per
mitting postdeadline filing of bill of review). Taken to
gether, these cases recognize that courts of equity can and
do draw upon decisions made in other similar cases for
guidance. Such courts exercise judgment in light of prior
precedent, but with awareness of the fact that specific
circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case.
We recognize that, in the context of procedural default,
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Opinion of the Court

we have previously stated, without qualification, that a
petitioner “must ‘bear the risk of attorney error.’ ” Cole
man v. Thompson, 501 U. S. 722, 752–753 (1991). But
Coleman was “a case about federalism,” id., at 726, in that
it asked whether federal courts may excuse a petitioner’s
failure to comply with a state court’s procedural rules,
notwithstanding the state court’s determination that its
own rules had been violated. Equitable tolling, by con
trast, asks whether federal courts may excuse a peti
tioner’s failure to comply with federal timing rules, an
inquiry that does not implicate a state court’s interpreta
tion of state law. Cf. Lawrence, 549 U. S., at 341
(GINSBURG, J., dissenting). Holland does not argue that
his attorney’s misconduct provides a substantive ground
for relief, cf. §2254(i), nor is this a case that asks whether
AEDPA’s statute of limitations should be recognized at all,
cf. Day, supra, at 209. Rather, this case asks how equity
should be applied once the statute is recognized. And
given equity’s resistance to rigid rules, we cannot read
Coleman as requiring a per se approach in this context.
In short, no pre-existing rule of law or precedent de
mands a rule like the one set forth by the Eleventh Circuit
in this case. That rule is difficult to reconcile with more
general equitable principles in that it fails to recognize
that, at least sometimes, professional misconduct that
fails to meet the Eleventh Circuit’s standard could none
theless amount to egregious behavior and create an ex
traordinary circumstance that warrants equitable tolling.
And, given the long history of judicial application of equi
table tolling, courts can easily find precedents that can
guide their judgments. Several lower courts have specifi
cally held that unprofessional attorney conduct may, in
certain circumstances, prove “egregious” and can be “ex
traordinary” even though the conduct in question may not
satisfy the Eleventh Circuit’s rule. See, e.g., Nara v.
Frank, 264 F. 3d 310, 320 (CA3 2001) (ordering hearing as
 Cite as: 560 U. S. ____ (2010) 19

Opinion of the Court

to whether client who was “effectively abandoned” by
lawyer merited tolling); Calderon, 128 F. 3d, at 1289
(allowing tolling where client was prejudiced by a last
minute change in representation that was beyond his
control); Baldayaque, 338 F. 3d, at 152–153 (finding that
where an attorney failed to perform an essential service,
to communicate with the client, and to do basic legal
research, tolling could, under the circumstances, be war
ranted); Spitsyn, 345 F. 3d, at 800–802 (finding that “ex
traordinary circumstances” may warrant tolling where
lawyer denied client access to files, failed to prepare a
petition, and did not respond to his client’s communica
tions); United States v. Martin, 408 F. 3d 1089, 1096 (CA8
2005) (client entitled to equitable tolling where his attor
ney retained files, made misleading statements, and en
gaged in similar conduct).
We have previously held that “a garden variety claim of
excusable neglect,” Irwin, 498 U. S., at 96, such as a sim
ple “miscalculation” that leads a lawyer to miss a filing
deadline, Lawrence, supra, at 336, does not warrant equi
table tolling. But the case before us does not involve, and
we are not considering, a “garden variety claim” of attor
ney negligence. Rather, the facts of this case present far
more serious instances of attorney misconduct. And, as
we have said, although the circumstances of a case must
be “extraordinary” before equitable tolling can be applied,
we hold that such circumstances are not limited to those
that satisfy the test that the Court of Appeals used in this
case.
IV
The record facts that we have set forth in Part I of this
opinion suggest that this case may well be an “extraordi
nary” instance in which petitioner’s attorney’s conduct
constituted far more than “garden variety” or “excusable
neglect.” To be sure, Collins failed to file Holland’s peti
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Opinion of the Court

tion on time and appears to have been unaware of the date
on which the limitations period expired—two facts that,
alone, might suggest simple negligence. But, in these
circumstances, the record facts we have elucidated suggest
that the failure amounted to more: Here, Collins failed to
file Holland’s federal petition on time despite Holland’s
many letters that repeatedly emphasized the importance
of his doing so. Collins apparently did not do the research
necessary to find out the proper filing date, despite Hol
land’s letters that went so far as to identify the applicable
legal rules. Collins failed to inform Holland in a timely
manner about the crucial fact that the Florida Supreme
Court had decided his case, again despite Holland’s many
pleas for that information. And Collins failed to communi
cate with his client over a period of years, despite various
pleas from Holland that Collins respond to his letters.
A group of teachers of legal ethics tells us that these
various failures violated fundamental canons of profes
sional responsibility, which require attorneys to perform
reasonably competent legal work, to communicate with
their clients, to implement clients’ reasonable requests, to
keep their clients informed of key developments in their
cases, and never to abandon a client. See Brief for Legal
Ethics Professors et al. as Amici Curiae (describing ethical
rules set forth in case law, the Restatements of Agency,
the Restatement (Third) of the Law Governing Lawyers
(1998), and in the ABA Model Rules of Professional Con
duct (2009)). And in this case, the failures seriously preju
diced a client who thereby lost what was likely his single
opportunity for federal habeas review of the lawfulness of
his imprisonment and of his death sentence.
We do not state our conclusion in absolute form, how
ever, because more proceedings may be necessary. The
District Court rested its ruling not on a lack of extraordi
nary circumstances, but rather on a lack of diligence—a
ruling that respondent does not defend. See Brief for
 Cite as: 560 U. S. ____ (2010) 21

Opinion of the Court

Respondent 38, n. 19; Tr. of Oral Arg. 43, 52. We think
that the District Court’s conclusion was incorrect. The
diligence required for equitable tolling purposes is “ ‘rea
sonable diligence,’ ” see, e.g., Lonchar, 517 U. S., at 326,
not “ ‘ “maximum feasible diligence,” ’ ” Starns v. Andrews,
524 F. 3d 612, 618 (CA5 2008) (quoting Moore v. Knight,
368 F. 3d 936, 940 (CA7 2004)). Here, Holland not only
wrote his attorney numerous letters seeking crucial in
formation and providing direction; he also repeatedly
contacted the state courts, their clerks, and the Florida
State Bar Association in an effort to have Collins—the
central impediment to the pursuit of his legal remedy—
removed from his case. And, the very day that Holland
discovered that his AEDPA clock had expired due to
Collins’ failings, Holland prepared his own habeas petition
pro se and promptly filed it with the District Court.
Because the District Court erroneously relied on a lack
of diligence, and because the Court of Appeals erroneously
relied on an overly rigid per se approach, no lower court
has yet considered in detail the facts of this case to deter
mine whether they indeed constitute extraordinary cir
cumstances sufficient to warrant equitable relief. We are
“[m]indful that this is a court of final review and not first
view.” Adarand Constructors, Inc. v. Mineta, 534 U. S.
103, 110 (2001) (per curiam) (internal quotation marks
omitted). And we also recognize the prudence, when faced
with an “equitable, often fact-intensive” inquiry, of allow
ing the lower courts “to undertake it in the first instance.”
Gonzalez v. Crosby, 545 U. S. 524, 540 (2005) (STEVENS,
J., dissenting). Thus, because we conclude that the Dis
trict Court’s determination must be set aside, we leave it
to the Court of Appeals to determine whether the facts in
this record entitle Holland to equitable tolling, or whether
further proceedings, including an evidentiary hearing,
might indicate that respondent should prevail.
The judgment below is reversed, and the case is re
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Opinion of the Court

manded for further proceedings consistent with this
opinion.
It is so ordered.
 Cite as: 560 U. S. ____ (2010) 1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–5327
_________________

ALBERT HOLLAND, PETITIONER v. FLORIDA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 14, 2010]

JUSTICE ALITO, concurring in part and concurring in the
judgment.
This case raises two broad questions: first, whether the
statute of limitations set out in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C.
§2244(d), is subject to equitable tolling; and second, as
suming an affirmative answer to the first question,
whether petitioner in this particular case has alleged facts
that are sufficient to satisfy the “extraordinary circum
stances” prong of the equitable tolling test. I agree with
the Court’s conclusion that equitable tolling is available
under AEDPA. I also agree with much of the Court’s
discussion concerning whether equitable tolling is avail
able on the facts of this particular case. In particular, I
agree that the Court of Appeals erred by essentially limit
ing the relevant inquiry to the question whether “gross
negligence” of counsel may be an extraordinary circum
stance warranting equitable tolling. As the Court makes
clear, petitioner in this case has alleged certain facts that
go well beyond any form of attorney negligence, see ante,
at 3–4, 19, and the Court of Appeals does not appear to
have asked whether those particular facts provide an
independent basis for tolling. Accordingly, I concur in the
Court’s decision to reverse the judgment below and re
mand so that the lower courts may properly apply the
correct legal standard.
2 HOLLAND v. FLORIDA

Opinion of ALITO, J.

Although I agree that the Court of Appeals applied the
wrong standard, I think that the majority does not do
enough to explain the right standard. It is of course true
that equitable tolling requires “extraordinary circum
stances,” but that conclusory formulation does not provide
much guidance to lower courts charged with reviewing the
many habeas petitions filed every year. I therefore write
separately to set forth my understanding of the principles
governing the availability of equitable tolling in cases
involving attorney misconduct.
I
“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraor
dinary circumstance stood in his way.” Pace v. DiGug
lielmo, 544 U. S. 408, 418 (2005). The dispute in this case
concerns whether and when attorney misconduct amounts
to an “extraordinary circumstance” that stands in a peti
tioner’s way and prevents the petitioner from filing a
timely petition. I agree with the majority that it is not
practical to attempt to provide an exhaustive compilation
of the kinds of situations in which attorney misconduct
may provide a basis for equitable tolling. In my view,
however, it is useful to note that several broad principles
may be distilled from this Court’s precedents.
First, our prior cases make it abundantly clear that
attorney negligence is not an extraordinary circumstance
warranting equitable tolling. In Lawrence v. Florida, 549
U. S. 327, 336 (2007), the Court expressly rejected the
petitioner’s contention that “his counsel’s mistake in mis
calculating the limitations period entitle[d] him to equita
ble tolling.” “Attorney miscalculation,” the Court held, “is
simply not sufficient to warrant equitable tolling, particu
larly in the postconviction context where prisoners have no
constitutional right to counsel.” Id., at 336–337 (citing
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Opinion of ALITO, J.

Coleman v. Thompson, 501 U. S. 722, 756–757 (1991)
(emphasis added)).
The basic rationale for Lawrence’s holding is that the
mistakes of counsel are constructively attributable to the
client, at least in the postconviction context. The Law
rence Court’s reliance on Coleman is instructive. In Cole
man, the Court addressed whether attorney error provided
cause for a procedural default based on a late filing. See
501 U. S., at 752. Because “[t]here is no constitutional
right to an attorney in state post-conviction proceedings,”
the Court explained, “a petitioner cannot claim constitu
tionally ineffective assistance of counsel in such proceed
ings.” Ibid. In such circumstances, the Court reasoned,
there was “ ‘no inequity in requiring [the petitioner] to
bear the risk of attorney error that results in a procedural
default.’ ” Ibid. (quoting Murray v. Carrier, 477 U. S. 478,
488 (1986)); accord, Coleman, 501 U. S., at 753 (“ ‘[C]ause’
under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be
attributed to him”); ibid. (“Attorney ignorance or inadver
tence 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 attor
ney error’ ”); id., at 754 (what matters is whether “the
error [of counsel] must be seen as an external factor, i.e.,
‘imputed to the State’ ”); ibid. (“In the absence of a consti
tutional violation, the petitioner bears the risk in federal
habeas for all attorney errors made in the course of the
representation”); id., at 757 (“Because Coleman had no
right to counsel to pursue his appeal in state habeas, any
attorney error that led to the default of Coleman’s claims
in state court cannot constitute cause to excuse the default
in federal habeas”). As Lawrence makes clear, the same
analysis applies when a petitioner seeks equitable tolling
based on attorney error in the postconviction context. See
549 U. S., at 336–337 (citing Coleman).
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Opinion of ALITO, J.

While Lawrence addressed an allegation of attorney
miscalculation, its rationale fully applies to other forms of
attorney negligence. Instead of miscalculating the filing
deadline, for example, an attorney could compute the
deadline correctly but forget to file the habeas petition on
time, mail the petition to the wrong address, or fail to do
the requisite research to determine the applicable dead
line. In any case, however, counsel’s error would be con
structively attributable to the client.
Second, the mere fact that a missed deadline involves
“gross negligence” on the part of counsel does not by itself
establish an extraordinary circumstance. As explained
above, the principal rationale for disallowing equitable
tolling based on ordinary attorney miscalculation is that
the error of an attorney is constructively attributable to
the client and thus is not a circumstance beyond the liti
gant’s control. See Lawrence, supra, at 336–337; Coleman,
supra, at 752–754; see also Powell v. Davis, 415 F. 3d 722,
727 (CA7 2005); Johnson v. McBride, 381 F. 3d 587, 589–
590 (CA7 2004); Harris v. Hutchinson, 209 F. 3d 325, 330
(CA4 2000). That rationale plainly applies regardless
whether the attorney error in question involves ordinary
or gross negligence. See Coleman, 501 U. S., at 754 (“[I]t
is not the gravity of the attorney’s error that matters, but
that it constitutes a violation of petitioner’s right to coun
sel, so that the error must be seen as an external factor,
i.e., ‘imputed to the State’ ”); id., at 752 (rejecting the
contention that “[t]he late filing was . . . the result of
attorney error of sufficient magnitude to excuse the de
fault in federal habeas”).
Allowing equitable tolling in cases involving gross
rather than ordinary attorney negligence would not only
fail to make sense in light of our prior cases; it would also
be impractical in the extreme. Missing the statute of
limitations will generally, if not always, amount to negli
gence, see Lawrence, 549 U. S., at 336, and it has been
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Opinion of ALITO, J.

aptly said that gross negligence is ordinary negligence
with a vituperative epithet added. Therefore, if gross
negligence may be enough for equitable tolling, there will
be a basis for arguing that tolling is appropriate in almost
every counseled case involving a missed deadline. See
ibid. (argument that attorney miscalculation is an ex
traordinary circumstance, if credited, “would essentially
equitably toll limitations periods for every person whose
attorney missed a deadline”). This would not just impose
a severe burden on the district courts; it would also make
the availability of tolling turn on the highly artificial
distinction between gross and ordinary negligence. That
line would be hard to administer, would needlessly con
sume scarce judicial resources, and would almost certainly
yield inconsistent and often unsatisfying results. See
Baldayaque v. United States, 338 F. 3d 145, 155 (CA2
2003) (Jacobs, J., concurring) (noting that the “distinction
between ordinary and extraordinary attorney malpractice
. . . is elusive, hard to apply, and counterintuitive”).
Finally, it is worth noting that a rule that distinguishes
between ordinary and gross attorney negligence for pur
poses of the equitable tolling analysis would have demon
strably “inequitable” consequences. For example, it is
hard to see why a habeas petitioner should be effectively
penalized just because his counsel was negligent rather
than grossly negligent, or why the State should be penal
ized just because petitioner’s counsel was grossly negligent
rather than moderately negligent. Regardless of how one
characterizes counsel’s deficient performance in such
cases, the petitioner is not personally at fault for the
untimely filing, attorney error is a but-for cause of the late
filing, and the governmental interest in enforcing the
statutory limitations period is the same.
II
Although attorney negligence, however styled, does not
6 HOLLAND v. FLORIDA

Opinion of ALITO, J.

provide a basis for equitable tolling, the AEDPA statute of
limitations may be tolled if the missed deadline results
from attorney misconduct that is not constructively at
tributable to the petitioner. In this case, petitioner alleges
facts that amount to such misconduct. See ante, at 19
(acknowledging that ordinary attorney negligence does not
warrant equitable tolling, but observing that “the facts of
this case present far more serious instances of attorney
misconduct”). In particular, he alleges that his attorney
essentially “abandoned” him, as evidenced by counsel’s
near-total failure to communicate with petitioner or to
respond to petitioner’s many inquiries and requests over a
period of several years. See ante, at 3–4. Petitioner also
appears to allege that he made reasonable efforts to ter
minate counsel due to his inadequate representation and
to proceed pro se, and that such efforts were successfully
opposed by the State on the perverse ground that peti
tioner failed to act through appointed counsel. See ante,
at 4; Brief for Petitioner 50–51 (stating that petitioner
filed “two pro se motions in the Florida Supreme Court to
remove Collins as counsel (one which, if granted, would
have allowed [petitioner] to proceed pro se)” (emphasis
deleted)).
If true, petitioner’s allegations would suffice to establish
extraordinary circumstances beyond his control. Common
sense dictates that a litigant cannot be held constructively
responsible for the conduct of an attorney who is not oper
ating as his agent in any meaningful sense of that word.
See Coleman, supra, at 754 (relying on “well-settled prin
ciples of agency law” to determine whether attorney error
was attributable to client); Baldayaque, supra, at 154
(Jacobs, J., concurring) (“[W]hen an ‘agent acts in a man
ner completely adverse to the principal’s interest,’ the
‘principal is not charged with [the] agent’s misdeeds’ ”).
That is particularly so if the litigant’s reasonable efforts to
terminate the attorney’s representation have been
 Cite as: 560 U. S. ____ (2010) 7

Opinion of ALITO, J.

thwarted by forces wholly beyond the petitioner’s control.
The Court of Appeals apparently did not consider peti
tioner’s abandonment argument or assess whether the
State improperly prevented petitioner from either obtain
ing new representation or assuming the responsibility of
representing himself. Accordingly, I agree with the major
ity that the appropriate disposition is to reverse and re
mand so that the lower courts may apply the correct stan
dard to the facts alleged here.
 Cite as: 560 U. S. ____ (2010) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–5327
_________________

ALBERT HOLLAND, PETITIONER v. FLORIDA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 14, 2010]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to
all but Part I, dissenting.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), establishes a 1-year limitations period for
state prisoners to seek federal habeas relief, subject to
several specific exceptions. 28 U. S. C. §2244(d). The
Court concludes that this time limit is also subject to
equitable tolling, even for attorney errors that are ordinar
ily attributable to the client. And it rejects the Court of
Appeals’ conclusion that Albert Holland is not entitled to
tolling, without explaining why the test that court applied
was wrong or what rule it should have applied instead. In
my view §2244(d) leaves no room for equitable exceptions,
and Holland could not qualify even if it did.
I
The Court is correct, ante, at 13, that we ordinarily
presume federal limitations periods are subject to equita
ble tolling unless tolling would be inconsistent with the
statute. Young v. United States, 535 U. S. 43, 49 (2002).
That is especially true of limitations provisions applicable
to actions that are traditionally governed by equitable
principles—a category that includes habeas proceedings.
See id., at 50. If §2244(d) merely created a limitations
period for federal habeas applicants, I agree that applying
equitable tolling would be appropriate.
2 HOLLAND v. FLORIDA

SCALIA, J., dissenting

But §2244(d) does much more than that, establishing a
detailed scheme regarding the filing deadline that ad
dresses an array of contingencies. In an ordinary case, the
clock starts when the state-court judgment becomes final
on direct review. §2244(d)(1)(A).1 But the statute delays
the start date—thus effectively tolling the limitations
period—in cases where (1) state action unlawfully im
peded the prisoner from filing his habeas application, (2)
the prisoner asserts a constitutional right newly recog
nized by this Court and made retroactive to collateral
cases, or (3) the factual predicate for the prisoner’s claim
could not previously have been discovered through due
diligence. §2244(d)(1)(B)–(D). It also expressly tolls the
limitations period during the pendency of a properly filed
application for state collateral relief. §2244(d)(2). Con
gress, in short, has considered and accounted for specific
circumstances that in its view excuse an applicant’s delay.
The question, therefore, is not whether §2244(d)’s time
——————
1 Title
28 U. S. C. §2244(d) provides:
“(1) 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;
“(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 recog
nized 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.
“(2) The 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 shall not be counted toward any period of
limitation under this subsection.”
 Cite as: 560 U. S. ____ (2010) 3

SCALIA, J., dissenting

bar is subject to tolling, but whether it is consistent with
§2244(d) for federal courts to toll the time bar for addi
tional reasons beyond those Congress included.
In my view it is not. It is fair enough to infer, when a
statute of limitations says nothing about equitable tolling,
that Congress did not displace the default rule. But when
Congress has codified that default rule and specified the
instances where it applies, we have no warrant to extend
it to other cases. See United States v. Beggerly, 524 U. S.
38, 48–49 (1998). Unless the Court believes §2244(d)
contains an implicit, across-the-board exception that
subsumes (and thus renders unnecessary) §2244(d)(1)(B)–
(D) and (d)(2), it must rely on the untenable assumption
that when Congress enumerated the events that toll the
limitations period—with no indication the list is merely
illustrative—it implicitly authorized courts to add others
as they see fit. We should assume the opposite: that by
specifying situations in which an equitable principle ap
plies to a specific requirement, Congress has displaced
courts’ discretion to develop ad hoc exceptions. Cf. Lon
char v. Thomas, 517 U. S. 314, 326–328 (1996).
The Court’s responses are unpersuasive. It brushes
aside §2244(d)(1)(B)–(D), apparently because those subdi
visions merely delay the start of the limitations period but
do not suspend a limitations period already underway.
Ante, at 15. But the Court does not explain why that
distinction makes any difference,2 and we have described a
——————
2 The Court cites several Court of Appeals cases that support its trig

gering-tolling distinction, ante, at 15, but no case of ours that does so.
Clay v. United States, 537 U. S. 522, 529 (2003), described
§2244(d)(1)(A) as containing “triggers” for the limitations period, but it
did not distinguish delaying the start of the limitations period from
tolling. The Court of Appeals cases the Court cites, Cada v. Baxter
Healthcare Corp., 920 F. 2d 446, 450 (CA7 1990), Wolin v. Smith
Barney Inc., 83 F. 3d 847, 852 (CA7 1996), and Wims v. United States,
225 F. 3d 186, 190 (CA2 2000), rely on a distinction between accrual
rules and tolling that we have since disregarded, see TRW Inc. v.
4 HOLLAND v. FLORIDA

SCALIA, J., dissenting

rule that forestalls the start of a limitations period as
“effectively allow[ing] for equitable tolling.” Beggerly,
supra, at 48.
The Court does address §2244(d)(2), which undeniably
provides for poststart tolling, but dismisses it on the basis
that Congress had to resolve a contradiction between
§2244(d)’s 1-year time bar and the rule of Rose v. Lundy,
455 U. S. 509 (1982), that a federal habeas application
cannot be filed while state proceedings are pending. But
there is no contradiction to resolve unless, in the absence
of a statutory tolling provision, equitable tolling would not
apply to a state prisoner barred from filing a federal ha
beas application while he exhausts his state remedies.
The Court offers no reason why it would not, and our
holding in Young, 535 U. S., at 50–51, that tolling was
justified by the Government’s inability to pursue a claim
because of the Bankruptcy Code’s automatic stay, 11
U. S. C. §362, suggests that it would.3
II
A
Even if §2244(d) left room for equitable tolling in some
situations, tolling surely should not excuse the delay here.
Where equitable tolling is available, we have held that a
——————
Andrews, 534 U. S. 19, 27, 29 (2001).
3 The Court reads Young as support for disregarding the specific toll

ing provisions Congress included in §2244(d). Ante, at 15. But in the
pertinent passage, Young explained only that the inclusion of an
express tolling rule in a different provision regarding a different limita
tions period, 11 U. S. C. §507(a)(8)(A)(ii) (2000 ed.)—albeit a provision
within the same subparagraph as the provision at issue,
§507(a)(8)(A)(i)—did not rebut the presumption of equitable tolling.
See 535 U. S., at 53. Moreover, Young stressed that §507(a)(8)(A)(ii)
authorized tolling in instances where equity would not have allowed it,
which reinforced the presumption in favor of tolling. Ibid. Here, the
Court does not suggest that any of §2244(d)’s exceptions go beyond
what equity would have allowed.
 Cite as: 560 U. S. ____ (2010) 5

SCALIA, J., dissenting

litigant is entitled to it only if he has diligently pursued
his rights and—the requirement relevant here—if “ ‘some
extraordinary circumstance stood in his way.’ ” Lawrence
v. Florida, 549 U. S. 327, 336 (2007) (quoting Pace v.
DiGuglielmo, 544 U. S. 408, 418 (2005)). Because the
attorney is the litigant’s agent, the attorney’s acts (or
failures to act) within the scope of the representation are
treated as those of his client, see Link v. Wabash R. Co.,
370 U. S. 626, 633–634, and n. 10 (1962), and thus such
acts (or failures to act) are necessarily not extraordinary
circumstances.
To be sure, the rule that an attorney’s acts and over
sights are attributable to the client is relaxed where the
client has a constitutional right to effective assistance of
counsel. Where a State is constitutionally obliged to
provide an attorney but fails to provide an effective one,
the attorney’s failures that fall below the standard set
forth in Strickland v. Washington, 466 U. S. 668 (1984),
are chargeable to the State, not to the prisoner. See
Murray v. Carrier, 477 U. S. 478, 488 (1986). But where
the client has no right to counsel—which in habeas pro
ceedings he does not—the rule holding him responsible for
his attorney’s acts applies with full force. See Coleman v.
Thompson, 501 U. S. 722, 752–754 (1991).4 Thus, when a
state habeas petitioner’s appeal is filed too late because of
attorney error, the petitioner is out of luck—no less than if
he had proceeded pro se and neglected to file the appeal
himself.5
——————
4 The Court dismisses Coleman as “a case about federalism” and
therefore inapposite here. Ante, at 18 (internal quotation marks
omitted). I fail to see how federalism concerns are not implicated by
ad hoc exceptions to the statute of limitations for attempts to overturn
state-court convictions. In any event, Coleman did not invent, but
merely applied, the already established principle that an attorney’s acts
are his client’s. See 501 U. S., at 754.
5 That Holland’s counsel was appointed, rather than, like counsel in
6 HOLLAND v. FLORIDA

SCALIA, J., dissenting

Congress could, of course, have included errors by state
appointed habeas counsel as a basis for delaying the limi
tations period, but it did not. Nor was that an oversight:
Section 2244(d)(1)(B) expressly allows tolling for state
created impediments that prevent a prisoner from filing
his application, but only if the impediment violates the
Constitution or federal law.
If there were any doubt that equitable tolling is un
available under §2244(d) to excuse attorney error, we
eliminated it in Lawrence. The petitioner there asserted
that his attorney’s miscalculation of the limitations period
for federal habeas applications caused him to miss the
filing deadline. The attorney’s error stemmed from his
mistaken belief that—contrary to Circuit precedent (which
we approved in Lawrence)—the limitations period is tolled
during the pendency of a petition for certiorari from a
state postconviction proceeding. 549 U. S., at 336; see also
Brief for Petitioner in Lawrence v. Florida, O. T. 2006, No.
05–8820, pp. 31, 36. Assuming arguendo that equitable
tolling could ever apply to §2244(d), we held that such
attorney error did not warrant it, especially since the
petitioner was not constitutionally entitled to counsel.
Lawrence, supra, at 336–337.
Faithful application of Lawrence should make short
work of Holland’s claim. Although Holland alleges a wide
array of misconduct by his counsel, Bradley Collins, the
only pertinent part appears extremely similar, if not iden
——————
Coleman, retained, see Brief for Respondent in Coleman v. Thompson,
O. T. 1990, No. 89–7662, pp. 33–34, 40, is irrelevant. The Sixth
Amendment right to effective assistance of counsel, we have held,
applies even to an attorney the defendant himself hires. See Cuyler v.
Sullivan, 446 U. S. 335, 342–345 (1980). The basis for Coleman was
not that Coleman had hired his own counsel, but that the State owed
him no obligation to provide one. See 501 U. S., at 754. It would be
utterly perverse, of course, to penalize the State for providing habeas
petitioners with representation, when the State could avoid equitable
tolling by providing none at all.
 Cite as: 560 U. S. ____ (2010) 7

SCALIA, J., dissenting

tical, to the attorney’s error in Lawrence. The relevant
time period extends at most from November 10, 2005—
when the Florida Supreme Court affirmed the denial of
Holland’s state habeas petition6—to December 15, 2005,
the latest date on which §2244(d)’s limitations period
could have expired.7 Within that period, Collins could
have alerted Holland to the Florida Supreme Court’s
decision, and either Collins or Holland himself could have
filed a timely federal habeas application. Collins did not
do so, but instead filed a petition for certiorari several
months later.
Why Collins did not notify Holland or file a timely fed
eral application for him is unclear, but none of the plausi
ble explanations would support equitable tolling. By far
the most likely explanation is that Collins made exactly
the same mistake as the attorney in Lawrence—i.e., he
assumed incorrectly that the pendency of a petition for
certiorari in this Court seeking review of the denial of
Holland’s state habeas petition would toll AEDPA’s time
bar under §2244(d)(2). In December 2002, Collins had
explained to Holland by letter that if his state habeas
petition was denied and this Court denied certiorari in
that proceeding, Holland’s claims “will then be ripe for
presentation in a petition for writ of habeas corpus in
federal court.” App. 61 (emphasis added). Holland him
self interprets that statement as proof that, at that time,
“Collins was under the belief that [Holland’s] time to file

——————
6 The Florida Supreme Court did not issue its mandate, and the limi

tations period did not resume, see Lawrence, 549 U. S., at 331, until
December 1, 2005. But once the Florida Supreme Court issued its
decision (with the mandate still to come), Collins could have notified
Holland, who in turn could have filed a pro se federal application.
7 The parties dispute when Holland’s state habeas petition was filed,

and thus when the limitations period expired. Brief for Petitioner 4–5,
and n. 4; Brief for Respondent 8, 9, n. 7. The discrepancy is immaterial,
but I give Holland the benefit of the doubt.
8 HOLLAND v. FLORIDA

SCALIA, J., dissenting

his federal habeas petition would continue to be tolled
until this Court denied certiorari” in his state postconvic
tion proceeding. Pet. for Cert. 12, n. 10. That misunder
standing would entirely account for Collins’s conduct—
filing a certiorari petition instead of a habeas application,
and waiting nearly three months to do so. But it would
also be insufficient, as Lawrence held it was, to warrant
tolling.
The other conceivable explanations for Collins’s failure
fare no better. It may be that Collins believed—as he
explained to Holland in a January 2006 letter, after Hol
land had informed him that a certiorari petition in a state
postconviction proceeding would not stop the clock—that
the certiorari petition in Holland’s direct appeal also did
not toll the time bar. Consequently, Collins wrote, Hol
land’s time to file a federal application had expired even
before Collins was appointed. App. 78–79. As the Court
explains, ante, at 8, this view too was wrong, but it is no
more a basis for equitable tolling than the attorney’s
misunderstanding in Lawrence.
Or it may be that Collins (despite what he wrote to
Holland) correctly understood the rule but simply ne
glected to notify Holland; perhaps he missed the state
court’s ruling in his mail, or perhaps it simply slipped his
mind. Such an oversight is unfortunate, but it amounts to
“garden variety” negligence, not a basis for equitable
tolling. Irwin v. Department of Veterans Affairs, 498 U. S.
89, 96 (1990). Surely it is no more extraordinary than the
attorney’s error in Lawrence, which rudimentary research
and arithmetic would have avoided.
The Court insists that Collins’s misconduct goes beyond
garden-variety neglect and mine-run miscalculation.
Ante, at 19. But the only differences it identifies had no
effect on Holland’s ability to file his federal application on
time. The Court highlights Collins’s nonresponsiveness
while Holland’s state postconviction motions were still
 Cite as: 560 U. S. ____ (2010) 9

SCALIA, J., dissenting

pending. Ante, at 19–20. But even taken at face value,
Collins’s silence prior to November 10, 2005, did not pre
vent Holland from filing a timely federal application once
the Florida courts were finished with his case. The Court
also appears to think significant Collins’s correspondence
with Holland in January 2006, after the limitations period
had elapsed. Ante, at 5–10, 20. But unless Holland can
establish that the time-bar should be tolled due to events
before December 15, 2005, any misconduct by Collins after
the limitations period elapsed is irrelevant. Even if
Collins’s conduct before November 10 and after December
15 was “extraordinary,” Holland has not shown that it
“stood in his way and prevented timely filing.” Lawrence,
549 U. S., at 336 (internal quotation marks omitted).
For his part, Holland now asserts that Collins did not
merely forget to keep his client informed, but deliberately
deceived him. As the Court of Appeals concluded, how
ever, Holland did not allege deception in seeking equitable
tolling below. See 539 F. 3d 1334, 1339 (CA11 2008) (per
curiam).8 In any event, the deception of which he com
plains consists only of Collins’s assurance early in the
representation that he would protect Holland’s ability to
assert his claims in federal court, see App. 55, 62, coupled
with Collins’s later failure to do so. That, of course, does
not by itself amount to deception, and Holland offers no
evidence that Collins meant to mislead him. Moreover,
Holland can hardly claim to have been caught off guard.
Collins’s failures to respond to Holland’s repeated requests
for information before the State Supreme Court ruled gave
Holland even greater reason to suspect that Collins had
fallen asleep at the switch. Holland indeed was under no
——————
8 Holland insists that he did allege deception below, see Brief for Peti

tioner 31, n. 29, but cites only a conclusory allegation in an unrelated
motion (a motion for appointment of new counsel). See App. 194. His
reply to the State’s response to the order to show cause, drafted by new
counsel, did not allege deception. 1 Record, Doc. 35.
10 HOLLAND v. FLORIDA

SCALIA, J., dissenting

illusion to the contrary, as his repeated efforts to replace
Collins reflect.9
B
Despite its insistence that Lawrence does not control
this case, the Court does not actually hold that Holland is
entitled to equitable tolling. It concludes only that the
Eleventh Circuit applied the wrong rule and remands the
case for a re-do. That would be appropriate if the Court
identified a legal error in the Eleventh Circuit’s analysis
and set forth the proper standard it should have applied.
The Court does neither. It rejects as “too rigid,” ante, at
17, the Eleventh Circuit’s test—which requires, beyond
ordinary attorney negligence, “an allegation and proof of
bad faith, dishonesty, divided loyalty, mental impairment
or so forth on the lawyer’s part,” 539 F. 3d, at 1339. But
the Court never explains why that “or so forth” test, which
explicitly leaves room for other kinds of egregious attorney
——————
9 The concurrence argues that Holland’s allegations suffice because
they show, if true, that Collins “essentially ‘abandoned’ ” Holland by
failing to respond to Holland’s inquiries, and therefore ceased to act as
Holland’s agent. Ante, at 6 (ALITO, J., concurring in part and concur
ring in judgment). But Collins’s failure to communicate has no bearing
unless it ended the agency relationship before the relevant window.
The concurrence does not explain why it would—does not contend, for
example, that Collins’s conduct amounted to disloyalty or renunciation
of his role, which would terminate Collins’s authority, see Restatement
(Second) of Agency §§112, 118 (1957). Collins’s alleged nonresponsive
ness did not help Holland’s cause, but it was no more “adverse to
[Holland’s] interest” or “beyond [Holland’s] control,” ante, at 6, 7 (inter
nal quotation marks omitted), and thus no more a basis for holding
Holland harmless from the consequences of his counsel’s conduct, than
mine-run attorney mistakes, cf. Irwin v. Department of Veterans Af
fairs, 498 U. S. 89, 96 (1990). The concurrence also relies upon Hol
land’s requests to replace Collins with new appointed counsel. But if
those requests could prevent imputing Collins’s acts to Holland, every
habeas applicant who unsuccessfully asks for a new state-provided
lawyer (but who does not seek to proceed pro se when that request is
denied) would not be bound by his attorney’s subsequent acts.
 Cite as: 560 U. S. ____ (2010) 11

SCALIA, J., dissenting

error, is insufficiently elastic.
Moreover, even if the Eleventh Circuit had adopted an
entirely inflexible rule, it is simply untrue that, as the
Court appears to believe, ante, at 17, all general rules are
ipso facto incompatible with equity. We have rejected that
canard before, see, e.g., Grupo Mexicano de Desarrollo,
S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 321–322
(1999), and we have relied on the existence of general
rules regarding equitable tolling in particular, see, e.g.,
Young, 535 U. S., at 53. As we observed in rejecting
ad hoc equitable restrictions on habeas relief, “the alterna
tive is to use each equity chancellor’s conscience as a
measure of equity, which alternative would be as arbitrary
and uncertain as measuring distance by the length of each
chancellor’s foot.” Lonchar, 517 U. S., at 323.
Consistent with its failure to explain the error in the
Eleventh Circuit’s test, the Court offers almost no clue
about what test that court should have applied. The Court
unhelpfully advises the Court of Appeals that its test is
too narrow, with no explanation besides the assertion that
its test left out cases where tolling might be warranted,
and no precise indication of what those cases might be.
Ante, at 18 (“[A]t least sometimes, professional misconduct
that fails to meet the Eleventh Circuit’s standard could
nonetheless amount to egregious behavior and create an
extraordinary circumstance that warrants equitable toll
ing”). The Court says that “courts can easily find prece
dents that can guide their judgments,” ibid., citing several
Court of Appeals opinions that (in various contexts) permit
tolling for attorney error—but notably omitting opinions
that disallow it, such as the Seventh Circuit’s opinion in
Powell v. Davis, 415 F. 3d 722, 727 (2005), which would
have “guide[d] . . . judgmen[t]” precisely where this court
arrived: “[A]ttorney misconduct, whether labeled negli
gent, grossly negligent, or willful, is attributable to the
client and thus is not a circumstance beyond a petitioner’s
12 HOLLAND v. FLORIDA

SCALIA, J., dissenting

control that might excuse an untimely petition.” Ibid.
(internal quotation marks omitted).
The only thing the Court offers that approaches sub
stantive instruction is its implicit approval of “fundamen
tal canons of professional responsibility,” articulated by an
ad hoc group of legal-ethicist amici consisting mainly of
professors of that least analytically rigorous and hence
most subjective of law-school subjects, legal ethics. Ante,
at 20. The Court does not even try to justify importing
into equity the “prevailing professional norms” we have
held implicit in the right to counsel, Strickland, 466 U. S.,
at 688. In his habeas action Holland has no right to coun
sel. I object to this transparent attempt to smuggle Strick
land into a realm the Sixth Amendment does not reach.
C
The Court’s refusal to articulate an intelligible rule
regarding the only issue actually before us stands in sharp
contrast to its insistence on deciding an issue that is not
before us: whether Holland satisfied the second prerequi
site for equitable tolling by demonstrating that he pursued
his rights diligently, see Pace, 544 U. S., at 418–419. As
the Court admits, only the District Court addressed that
question below; the Eleventh Circuit had no need to reach
it. More importantly, it is not even arguably included
within the question presented, which concerns only
whether an attorney’s gross negligence can constitute an
“extraordinary circumstance” of the kind we have held
essential for equitable tolling. Pet. for Cert. i. Whether
tolling is ever available is fairly included in that question,
but whether Holland has overcome an additional, inde
pendent hurdle to tolling is not.
The Court offers no justification for deciding this dis
tinct issue. The closest it comes is its observation that the
State “does not defend” the District Court’s ruling regard
ing diligence. Ante, at 20. But the State had no reason to
 Cite as: 560 U. S. ____ (2010) 13

SCALIA, J., dissenting

do so—any more than it had reason to address the merits
of Holland’s habeas claims. Nor, contrary to the Court’s
implication, has the State conceded the issue. The foot
note of the State’s brief which the Court cites did just the
opposite: After observing that only the extraordinary
circumstance prong of the equitable-tolling test is at issue,
the State (perhaps astutely apprehensive that the Court
might ignore that fact) added that “to the extent the Court
considers the matter” of Holland’s diligence, “Respondent
relies on the findings of the district court below.” Brief for
Respondent 38, n. 19. The Court also cites a statement by
the State’s counsel at oral argument, Tr. of Oral Arg. 43,
and Holland’s counsel’s characterization of it as a conces
sion, id., at 52. But the remark, in context, shows only
that the State does not dispute diligence in this Court,
where the only issue is extraordinary circumstances:
“Well, that goes to the issue . . . of diligence, of course,

which is not the issue we’re looking at. We’re looking

at the extraordinary circumstances, not the dili

gence. . . .

“[W]e’ll concede diligence for the moment . . . . ” Id.,

at 43.

Notwithstanding the Court’s confidence that the District
Court was wrong, it is not even clear that Holland acted
with the requisite diligence. Although Holland repeatedly
contacted Collins and the state courts, there were other
reasonable measures Holland could have pursued. For
example, as we suggested in Pace, supra, at 416—decided
while Holland’s state habeas petition was still pending—
Holland might have filed a “ ‘protective’ ” federal habeas
application and asked the District Court to stay the fed
eral action until his state proceedings had concluded. He
also presumably could have checked the court records in
the prison’s writ room—from which he eventually learned
of the state court’s decision, 539 F. 3d, at 1337—on a more
14 HOLLAND v. FLORIDA

SCALIA, J., dissenting

regular basis. And he could have sought permission from
the state courts to proceed pro se and thus remove Collins
from the equation.10 This is not to say the District Court
was correct to conclude Holland was not diligent; but the
answer is not as obvious as the Court would make it seem.
* * *
The Court’s impulse to intervene when a litigant’s law
yer has made mistakes is understandable; the temptation
to tinker with technical rules to achieve what appears a
just result is often strong, especially when the client faces

——————
10 Holland made many pro se filings in state court (which were

stricken because Holland was still represented), and he sought to have
new counsel appointed in Collins’s place, but did not seek to proceed
pro se. The Court does not dispute this, nor does Holland. The most he
asserts is that one of the pro se motions he filed, if granted, would have
entitled him to proceed pro se, see Brief for Petitioner 50–51—an
assertion he appears not to have made in the District Court, see 1
Record, Doc. 35, at 15. The concurrence equates that assertion with an
allegation that he actually sought to litigate his case on his own behalf.
Ante, at 6. It is not the same. The filing Holland refers to, see Brief for
Petitioner 12, and n. 13, like his earlier filings, requested that Collins
be replaced by new counsel. App. 149–163. The motion also asked for a
hearing pursuant to Nelson v. State, 274 So. 2d 256, 259 (Fla. App.
1973), to show Collins’s poor performance, App. 149–150, but that did
not amount to a request to proceed pro se. Nelson held that a defendant
facing trial who seeks to discharge his court-appointed counsel for
ineffectiveness is entitled to a hearing to determine if new counsel is
required. 274 So. 2d, at 259. If the defendant fails to make that
showing, but “continues to demand a dismissal of his court appointed
counsel,” Nelson explained that “a trial judge may in his discretion
discharge counsel and require the defendant to proceed to trial without
representation by court appointed counsel.” Ibid.; see also Hardwick v.
State, 521 So. 2d 1071, 1074–1075 (Fla. 1988). There is no reason why
requesting that procedure in state habeas proceedings should be
construed as a request to proceed pro se. Holland, unlike a defendant
still facing trial, did not need permission to fire Collins, since there was
no right to representation to waive. Once his request for a new attor
ney was denied, Holland himself could have informed Collins that his
services were no longer required.
 Cite as: 560 U. S. ____ (2010) 15

SCALIA, J., dissenting

a capital sentence. But the Constitution does not em
power federal courts to rewrite, in the name of equity,
rules that Congress has made. Endowing unelected
judges with that power is irreconcilable with our system,
for it “would literally place the whole rights and property
of the community under the arbitrary will of the judge,”
arming him with “a despotic and sovereign authority,” 1 J.
Story, Commentaries on Equity Jurisprudence §19, p. 19
(14th ed. 1918). The danger is doubled when we disregard
our own precedent, leaving only our own consciences
to constrain our discretion. Because both the statute
and stare decisis foreclose Holland’s claim, I respectfully
dissent.