concurring in the vacatur:
I concur in much of the majority opinion and in the judgment, but I reach the ultimate result by a route different from that taken in Part D of the Discussion section of that opinion. I would not only vacate the order denying petitioner Donald Green’s extension motions for untimeliness, I would also apply the doctrine of equitable tolling to treat the extension motions as a motion for relief under 28 U.S.C. § 2255 and, as a matter of equity, give him 60 days in which to file an amended motion that states one or more claims under that section.
I agree with the majority that a motion for an extension of time to seek relief under § 2255 (a motion over which the court has no subject matter jurisdiction prior to the filing of a § 2255 motion, see United States v. Leon, 203 F.3d 162, 164 (2d Cir.2000)), may, in appropriate circumstances, be treated as a § 2255 motion itself. I also agree that the extension motions filed in this case did not contain allegations sufficient to state a § 2255 *86claim. However, given (a) that Green’s time to move under § 2255 had not expired when he made his extension motions, (b) that Green later asked that his extension motions be treated as a § 2255 motion, and (c) that his time to move expired during lengthy delays by the government and the district court in the course of reaching their respective erroneous conclusions that Green’s deadline had already passed, I would, as a matter of equity, treat the extension motions as a § 2255 motion and allow its amendment in order to state a claim.
I view this case as an appropriate one for application of equitable tolling — a principle we have indicated may be applied to the filing of a § 2255 motion, see generally Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (so ruling as to petition under 28 U.S.C. § 2254), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000) — for the following reasons. As a matter of law, where a defendant has unsuccessfully petitioned for certiorari, his time to file a § 2255 motion expires one year after the certiorari denial. See 28 U.S.C. § 2255; United States v. Leon, 203 F.3d at 163. In Green’s case, the Supreme Court denied certiorari on October 21, 1996. His one-year § 2255 deadline thus was October 21, 1997, and his June 10, 1997 extension motion was filed four months prior to that deadline. Had the district court ruled promptly on that extension motion, or had it promptly dismissed the motion for lack of a case or controversy (anticipating our subject matter jurisdiction ruling in Leon), Green would have had ample time to file the § 2255 motion itself before the October 21 deadline.
In fact, however, action on Green’s extension motion was quite delayed. On June 25, 1997, some two weeks after receiving Green’s motion, the district court asked the government for its “immediate” view as to whether the motion should be granted. The government did not respond, however, until September 25, i.e., three months later. And the position taken by the government was erroneous, arguing that Green’s time to move under § 2255 had expired in May 1997, one year after this Court’s affirmance of his conviction, rather than in October 1997, one year after the Supreme Court’s denial of certio-rari. .
Further, if the district court, after receiving the government’s response, had quickly acted on Green’s extension motion — either denying it or dismissing it for lack of jurisdiction — Green would have had some four weeks in which to file a timely § 2255 motion. However, the district court did not deliver its decision until December 15, 1997, nearly three months after receiving the government’s response. And the court’s ruling, though rejecting the government’s erroneous view as to Green’s deadline, was itself erroneous, stating that Green’s § 2255 deadline had passed in July 1995, one year after the district court’s entry of the judgment of conviction. By the time the court rendered its decision on Green’s extension motion in December 1997, his actual October 1997 deadline for filing a § 2255 motion had passed.
In sum, the government and the district court combined to consume more than six months in addressing Green’s motion. Perhaps their pace was slow because of their respective views that Green’s time to file a § 2255 motion had expired even before he requested an extension. If either of their views had been correct, I would see no basis for equitable tolling. But given their errors, I do not think their slow pace should be allowed to prejudice Green.
Further, it appears to me that Green acted with reasonable diligence in attempting to pursue relief under § 2255. He did *87not wait until close to his October 21, 1997 deadline to request an extension; his extension motion was made on June 10, 1997. When he had heard nothing from the court on that motion for some three months, he moved again for an extension on September 15, 1997, more than a month prior to his deadline. After the government filed its response to Green’s extension motions on September 25, Green immediately filed a reply on September 30, arguing that he had until October 1997 to move under § 2255. Finally, after seven more weeks with no decision from the court, Green asked the court on November 18, 1997, to treat his prior extension motions as a § 2255 motion.
Although the circumstances of this case do not entirely parallel those in which equitable tolling has previously been applied, equity need not be formulaic. The circumstances here — in which (a) the defendant timely and repeatedly sought to protect his right to file a § 2255 motion, (b) the government’s (erroneous) response was delayed, and (c) the court’s (erroneous) decision was further delayed — seem to me extraordinary and to warrant equitable tolling.
I do not concur in the majority’s view that we cannot apply equitable tolling here because the certificate of appealability granted for this appeal does not mention that concept. One of the questions certified was “whether a timely motion for extension of time can be construed as a § 2255 motion for purposes of timeliness under the AEDPA.” I regard that question as sufficiently broad to allow this Court to determine what remedy to order if the treatment that the district court accorded the extension motion was erroneous.
Nor do I believe, as the majority opinion suggests, that we may grant equitable relief here only because the government has offered to waive the statute of limitations, a defense that it is now in position to assert only because of the delayed treatment of Green’s motion.
In sum, I think this is one of those rare and exceptional cases in which equitable tolling is appropriate.