concurring.
I concur in the decision and write separately to clarify my view of petitioner’s claim to equitable tolling as a result of a state impediment to the filing of his habeas petition under § 2244(d)(1)(B). Raised for the first time in Dolphin’s supplement to his motion for reconsideration, the evidence on which the claim was based was not new but was known to him at the time the response to the motion for summary judgment was filed. I would find that the district court did not abuse its discretion by refusing to consider the tardy claim to equitable tolling.
I also do not believe that what occurred here falls within the tolling provision relied on by petitioner. First, there is no indication that the state had any improper motive in not transferring the papers when Dolphin was transferred. The papers were apparently kept in a safe place and sealed. Second, as soon as Dolphin filed a proper request for the papers, they were sent to him. Third, Dolphin received the papers on February 8, 1999, and could have filed his habeas petition before the statute of limitations expired on March 3, 1999, even if he later felt he should amend his petition to better state his case. Finally, the “state action” that will toll the statute of limitations has to be “in violation of the Constitution and laws of the United States,” and I am unable to conclude that the action of the state in retaining petitioner’s papers until they were requested amounted to a violation of the constitution or any law.