concurring:
I join the court’s opinion in full. I add only that a contrary result would require “the essentially pointless early filing of federal petitions,” Brooks v. Williams, No. 2:10-cv-00045, 2011 WL 1457739, at *4 (D.Nev. Apr. 14, 2011), by prisoners who reasonably believe that their claims are properly pending, unexhausted, in state courts. See Gibbs v. Legrand, 767 F.3d *1060879, 890-91 (9th Cir.2014); see also Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (indicating that a prisoner’s “reasonable confusion about whether a state filing would be timely” will ordinarily constitute good cause for a protective federal petition).
Requiring a protective filing would be particularly pointless in this case. By August 2007, the federal habeas statute of limitations had long since run. Unlike in Pace, where the prisoner could have filed a protective petition during the state post-conviction proceedings but before the federal statute ran, in the present case any protective petition Rudin might have filed after August 2007 would not have protected anything. See, e.g., Urrizaga v. Attorney General for Idaho, No. CV-07-434, 2008 WL 1701735, at *3 (D.Idaho Apr. 9, 2008) (dismissing as untimely protective petition filed after the statute of limitations had already expired).
O’SCANNLAIN, Circuit Judge, dissenting:
I joined Judge Murguia’s original opinion for the Court, Rudin v. Myles, 766 F.3d 1161 (9th Cir.2014), and regret that she has changed her view. She was right then, and I believe her original view is still correct. We are all agreed that Rudin is entitled to equitable tolling for the period between November 10, 2004 and August 22, 2007. See Majority at 1056-57. During that time period, Rudin faced the extraordinary circumstance of being abandoned by her lawyer, Dayvid Figler, and diligently pursued her rights. See Holland v. Florida, 560 U.S. 631, 652-54, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). However, I cannot join the Court’s new conclusion that Rudin is entitled to equitable tolling after August 22, 2007. In my view, the statute of limitations expired on April 11, 2008, over three years before she filed the instant petition.1 Therefore, I respectfully dissent.
I
Under AEDPA, “equitable tolling is available ‘only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time and the extraordinary circumstances were the cause of [the prisoner’s] untimeliness.’ ” Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir.2013) (emphasis in original) (quoting Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir.2010)). And even if a prisoner can show such extraordinary circumstances, she must also demonstrate that she pursued her rights with “reasonable diligence.” Holland, 560 U.S. at 653, 130 S.Ct. 2549. Indeed, “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Bills, 628 F.3d at 1097. With these principles in mind, I turn to the relevant facts of this case.
II
The majority asserts that the events of a state court status conference, which took place on August 22, 2007, “affirmatively misled” Rudin with respect to the deadlines for her federal habeas petition, Majority at 1057-58, and therefore holds that Rudin’s failure to file a timely federal petition may be excused. That conclusion, however, cannot be squared with the record or our precedents.
*1061Even if the status conference were an “extraordinary circumstance” for AEDPA purposes, Rudin failed to act with reasonable diligence to protect her rights.2 On August 22, 2007, Rudin, her attorney, the prosecution, and the state post-conviction court first became aware that Figler had never filed a post-conviction petition in state court. The court informed the parties, however, that due to the “extraordinary circumstances” of Figler’s failure to file, it would “extend the one year deadline” to file a state habeas petition.3 Based on these events, the majority makes the extraordinary leap that Rudin was excused from doing anything with respect to her federal petition for post-conviction relief for well over three years. See Majority at 1057-58.
In fact, however, Rudin was under a duty to pursue her rights diligently. See Holland, 560 U.S. at 653, 130 S.Ct. 2549. As the majority recognizes, as of the August 22, 2007 conference, Rudin and her new attorney, Christopher Oram, were “put on notice of the fact that nothing had been ‘properly filed’ in either state or federal court on her behalf.” Majority at 1057-58. With such knowledge, Rudin was not excused from taking action. Rather, she needed to act — with “reasonable diligence” — to preserve her right to challenge her conviction. See Holland, 560 U.S. at 653, 130 S.Ct. 2549. Indeed, *1062the Supreme Court has spelled out precisely what steps Rudin should have taken as soon as she and Oram were aware that there were potential timeliness issues with the state petition.
In Pace v. DiGuglielmo, the Court instructed that if a state prisoner is faced with uncertainty about whether her state post-conviction petition is timely, she should “fil[e] a ‘protective’ petition in federal court and ask[ ] the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 U.S. at 416, 125 S.Ct. 1807; see also Lakey v. Hickman, 638 F.3d 782, 787 (9th Cir.2011) (“Pace also explicitly advised state prisoners ... to file a protective federal petition to avoid a possible timeliness bar.”). Rudin not only failed to file such a protective petition, she failed to file anything in federal court over the next three years.
The majority’s bare assertion that Rudin diligently pursued her rights does not make it so. That “Rudin waited only three months after the Nevada Supreme Court denied her relief — from January 20[, 2011] to April 25, 2011 — before filing her federal petition” is completely beside the point. Majority at 1058-59. Indeed, even if the August 22, 2007 conference were an “extraordinary circumstance” that would qualify for equitable tolling purposes, Rudin must still show she acted with reasonable diligence between August 22, 2007 and April 25, 2011. See Pace, 544 U.S. at 418, 125 S.Ct. 1807. The majority fails to demonstrate — nor could it, in light of the record — how Rudin acted with reasonable diligence for the duration of the relevant time period.
The August 22, 2007 conference did not excuse Rudin from acting, but rather armed her with knowledge that should have spurred her to protect her rights. Rudin did not file anything in federal court until April 25, 2011, over three years and eight months later. “Such a delay does not demonstrate the diligence required for application of equitable tolling.” White v. Martel, 601 F.3d 882, 885 (9th Cir.2010). Thus, even if the status conference were an extraordinary circumstance, as the majority asserts, Rudin is not entitled to equitable tolling beyond that date.
Ill
For the foregoing reasons, I would affirm the judgment of the district court.
. As the majority points out, Rudin is not entitled to equitable tolling between July 1, 2004 — the date the AEDPA limitations period began to run — and November 10, 2004 — the date Figler was appointed. See Majority at 1056. Thus, as of August 23, 2007, Rudin ha'd 232 days to file. her federal petition. When she failed to file by April 11, 2008, the statute of limitations expired.
. The majority conflates the concepts of statutory tolling and equitable tolling. Here, there is no dispute that Rudin is not entitled to statutory tolling. Thus, the majority’s attempt to recast a losing statutory tolling argument in terms of equitable tolling is unpersuasive.
. The majority says that such a ruling, "coupled with the state’s failure to brief the timeliness question or move to dismiss Rudin’s petition, 'affirmatively misled’ Rudin.” Majority at 1057-58 (emphasis added). It is unclear, however, what authority supports the position that the state’s failure to do something can amount to affirmative misleading. The majority cites Sossa but Sossa actually suggests that a state, as an opposing party, has ■ no authority to extend the statutory deadline established by Congress and therefore the state’s actions (or, in this case, inactions) should not influence the petitioner. See Sossa, 729 F.3d at 1235 n. 9 (citing Johnson v. Quarterman, 483 F.3d 278 (5th Cir.2007)). In any event, the state’s failure to object to the timeliness question applied to the state petition and thus would not affect Rudin’s assessment of her federal petition.
For that same reason, the majority is incorrect in relying on Sossa to assert that the events of the August 22, 2007 conference were an extraordinary circumstance under AEDPA. In Sossa, we held that when a prisoner is “affirmatively misled” by a federal magistrate judge regarding AEDPA’s deadlines, the petitioner may be entitled to equitable tolling. 729 F.3d at 1232 (citing Pliler v. Ford, 542 U.S. 225, 235, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (O’Connor, J., concurring)). We determined that when a federal magistrate judge granted multiple extensions for the prisoner to file his federal habeas petition, such extensions effectively instructed the prisoner that if he followed the court’s schedule, his federal filing would be deemed timely. Id. at 1235.
In contrast, the majority here focuses on a state court’s instruction regarding a state habeas petition. Unlike Sossa, neither the parties nor the court discussed the federal petition. Thus, rather than "affirmatively misle[ading]” Rudin in any way as to the AEDPA statute of limitations, if anything the status conference made Rudin aware that her state petition had not been properly filed and notified her that she should file a ■ protective federal petition. See Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Moreover, the majority does not explain what inaccuracy actually affirmatively misled Rudin. Sossa holds that " ’[i]n order to show that he was affirmatively misled, [a habeas petitioner] need[s] to point to some inaccuracy in the district court’s instructions' to him, not merely to his 'misunderstanding of accurate information.’ ” Sossa, 729 F.3d at 1233 (quoting Ford v. Pliler, 590 F.3d 782, 788 (9th Cir.2009)). Whereas Sossa identified such an inaccuracy, see id., Rudin — and the majority— cannot. Sossa, in short, does not govern here.