dissenting.
The majority refuses to consider Dolphin’s equitable tolling argument on appeal because that issue was not litigated in the district court. This refusal fails, in my opinion, to appreciate that Dolphin actually raised this issue below, in a supplement to his motion to reconsider filed on May 5, 2000. The district court, however, denied Dolphin’s motion to reconsider on May 9, 2000, without, it appears from the record, having taken the equitable tolling argument into account. Similarly, the district court failed to mention the equitable tolling issue in granting Dolphin a certificate of appealability.
The majority correctly concludes that it would not have been an abuse of discretion for the district court to have denied Dolphin’s motion, had that court been aware *500of the equitable tolling argument raised for the first time in the supplement to that motion. After all, the facts supporting Dolphin’s equitable tolling argument were known to Dolphin at the time the State moved for summary judgment based on the AEDPA statute of limitations, and thus the argument could have been raised at that time. But, on the other hand, had Dolphin’s equitable tolling argument been before it, the district court might have exercised its discretion to grant Dolphin’s motion. Given that the district court appears to have failed to exercise its discretion in this case, it is inappropriate for the members of this court to exercise, in effect, that discretion themselves. Thus, I think that we should remand to the district court to permit it to consider Dolphin’s equitable tolling argument in the first instance.
For this reason, I respectfully dissent.