dissenting:
Because I disagree with the majority’s interpretation of Nino v. Galaza, 183 F.3d 1003 (9th Cir.1999), I must respectfully dissent from its application of the federal statute of limitations to state habeas relief and the court’s judgment that the district court erred in denying the federal petition.
I
Even if we assume that the majority’s newly announced adoption of the “mailbox” rule is appropriate, many additional difficulties persist in its interpretation of Nino. Saffold contends, and the majority agrees, that the statute of limitations should be deemed tolled for the entire process of state collateral challenge. I cannot agree. In a case involving such dilatory behavior as this, the tripartite process cannot be treated as one solid block of tolled time; rather, the clock must continue to run in the periods of excessive delay between the three separate habeas petitions.
In Nino, this court held that “the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral challenge.” Id. at 1006. While at a superficial level, this statement may appear to lend support to the majority’s argument that the interstitial periods between Saffold’s state petitions are irrelevant, a more careful analysis of that precedent exposes the flaws in the majority’s interpretation.
After setting out that general pronouncement, the court in Nino was careful to mention that “it express[ed] no opinion as to whether tolling pursuant to AEDPA should be applied if the California state courts have dismissed a state habeas petition as untimely because the petitioner engaged in substantial delay in asserting habeas claims.” Id. at 1006 n. 4. When Saffold waited four months from the date that his petition to the California Court of Appeal was denied until the date that he handed his California Supreme Court petition to prison officials, he was not “properly pursuing” his appeal. Indeed, the California Supreme Court’s dismissal “for lack of diligence” is just the sort of thing that the panel in Nino was exempting when it declined to toll “substantial delay[s] in asserting habeas claims.” 1
*1270Unlike the petitioner in Nino, who pursued his state claims diligently through all three avenues of potential relief, Saffold left a glaring gap between two of his collateral appeals. The language of Nino expressly contemplated the possibility that the clock could run during periods in which the petitioner was “not properly pursuing his state post-conviction remedies.” 183 F.3d at 1006 n. 4. Nino exempts from its holding instances in which “the California state courts have dismissed a state habeas petition as untimely because the petitioner engaged in substantial delay in asserting habeas claims.” Id. Under the California court rule governing the “strongly preferred” method of appeal, id. at 1006 n. 3, Saffold had ten days in which to file his petition for review to the California Supreme Court after the Court of Appeal’s decision became final. Cal. Rules of Court, rule 28(b). He waited several months; and when he did eventually file his petition, it was dismissed “for lack of diligence.” Under any method of review, Saffold’s delay falls substantially outside the period that Nino tolls for “properly pursu[ed]” state post-conviction remedies. 183 F.3d at 1006. The majority ignores the California Supreme Court’s dismissal, stating that it should have justified its decision by providing “additional explanation or citation to authority.” Maj. Op. at 1267. I cannot participate in the majority’s attempt to tell the California Supreme Court how to deal with dilatory petitions. Saffold had obviously dallied months longer than the time allotted under California rules. Regrettably, the majority presumptuously and inappropriately purports to trump the procedural rules of the highest court of a sovereign state. By overlooking Saffold’s delay in this case, the majority eviscerates the language in the fourth footnote of the Nino decision. What, if not a case such as this, pray tell, would satisfy the majority that a petitioner had violated Nino?
II
The magistrate judge provided specific findings and recommendations on the argument that Saffold should not be held accountable for the four-month delay because during that time he was not made aware that the California Court of Appeal had denied his claim. There was “no state created impediment” to prevent Saffold from having filed his petitions to the California Supreme Court and to the United States District Court in a timely fashion, regardless of the California Court of Appeal’s ruling. Furthermore, neither the prison nor the California Court of Appeal did anything to prevent Saffold from receiving notice of the decision.
There simply is no authority for the proposition that Saffold is entitled to relief for not receiving prompt notice of the denials by the various California state courts. Saffold surely could have inquired about the status of his petition once during those four months. He knew that he could ascertain the status of his petition by contacting the court, as he had done so before,2 and by choosing to wait so long, he ran the risk of seeing his one-year period evaporate.
*1271III
Equitable tolling does not apply to Saf-fold because this court has applied that doctrine “only if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” See, e.g., Miles, 187 F.3d at 1107 (quoting Calderon (Kelly), 163 F.3d at 541) (internal quotation marks omitted). The Supreme Court echoed this sentiment, ruling out equitable tolling for “what is at best a garden variety claim of excusable neglect.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Here, the magistrate judge properly rejected petitioner’s delayed notice argument, finding no authority “for the proposition that a court document is not effective until a prisoner receives notice of it.”
IV
The court in Nino specifically carved out an exception to the language upon which the majority rests its decision. That exception clearly dictates that Saffold’s dilatory petitions fall outside the scope of properly pursued state post-conviction appeals. The district court properly dismissed the petition. I therefore dissent.
. My reading of Nino is consistent with the approach taken to the 28 U.S.C. § 2244(d)(2) "pending” requirement by the Second Circuit in Bennett v. Artuz, 199 F.3d 116 (2d Cir.1999). In Bennett, the Second Circuit held that "a state-court petition is ‘pending’ from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state’s procedures.” Bennett, 199 F.3d at 120 (emphasis added), aff’d on other grounds, Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). In this case, review by the California Supreme Court of Saffold's petition was unavailable due to, as the California Supreme Court itself said, Saffold's "lack of diligence” in pursuing that review. Thus, Saffold’s petition was not "pending” under § 2244(d)(2) while he waited for several months to decide whether to seek California Supreme Court review.
It is utterly irrelevant that, as the majority notes in footnote 8, Saffold's procedural default was with regard to a "condition for obtaining relief” rather than with regard to a "condition to filing.” The fact that the procedural bar was not with regard to a "condition to filing” simply means that Saffold's petition was "properly filed” under § 2244(d)(2). Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 365, 148 L.Ed.2d 213 (2000). By contrast, the question before us in this case, unlike the *1270question before either the Supreme Court in Bennett, or this court in Dictado v. Ducharme, 244 F.3d 724 (9th Cir.2001), is whether Saf-fold's petition was "pending” under § 2244(d)(2), not whether it was "properly filed.”
. Previously, Saffold wrote to the San Joaquin County Superior Court to determine the status of his petition even before the court had ruled on it.