dissenting:
In this federal habeas petition, his first, Kenneth Bernard Rouse, a prisoner under sentence of death, seeks relief on the basis of evidence that a juror who voted to convict and execute him deliberately concealed contempt for all African-Americans and a particular bias against Rouse in order to serve on Rouse’s jury. The district court held that Rouse’s former lawyers filed his habeas petition one day late and that Rouse presented no grounds for equitably tolling the limitations period and so dismissed Rouse’s habeas petition as untimely. The majority affirms. Thus, Rouse faces his death, denied all federal habeas review and without ever having received a hearing in any court on his disturbing evidence of juror bias. With respect, I must dissent. If equity has any place in our habeas jurisprudence, and the Supreme Court has long “adhered to the principle that habeas corpus is, at its core, an equitable remedy,” Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), then the exceptional circumstances presented in this case demand tolling.
I.
Eleven years ago, a North Carolina all-white jury convicted Rouse, an African-American, of the robbery, attempted rape, and brutal murder of Hazel Colleen Broadway, a sixty-three-year-old white woman. On the jury’s recommendation, the state judge sentenced Rouse to death. After his appeal was denied, Rouse discovered new evidence that the mother of one member of the jury had been robbed, raped, and murdered by a man who was later executed for the crimes. When all prospective jurors were asked for such information at voir dire, the victim’s son had remained silent.
After serving on Rouse’s jury, this juror reportedly stated that he had intentionally concealed his mother’s tragic death and carefully crafted his other responses to voir dire questions, because he wanted to be on the jury that judged Rouse. Moreover, this juror assertedly expressed intense racial prejudice against African Americans, calling them “niggers” and opining that African Americans care less about life than white people do and that African-American men rape white women in order to brag to their friends.
Because the juror did not reveal his own family’s tragedy or his virulent racial prejudice, Rouse had no opportunity to object to the juror or challenge his ability to judge and sentence Rouse impartially. Based on this newly discovered evidence, Rouse asserted a jury bias claim on collateral attack in state court, which twice denied his claim without a hearing. Rouse then filed the petition giving rise to this appeal — his first federal habeas petition— *258but he filed it one day after the Antiterrorism and Effective Death Penalty Act’s (AEDPA) limitations period expired. The district court dismissed the petition as untimely, again without a hearing.
As his appeal reaches us, therefore, Rouse has never received, even post-sentence, any opportunity to explore at a hearing the evidence he proffers of appalling bias on the part of one of his jurors. Of course, a federal court might conclude that this claim lacks merit; but at present, no federal court has ever examined the claim.1
II.
Although Rouse’s former lawyers relied on a facially applicable state procedural rule and federal decisions interpreting Federal Rule of Civil Procedure 6(e) in calculating the filing deadline for his federal habeas petition, they erred and filed that petition late. But the petition was only one day late.2 Given this and the other “extraordinary and unique circumstances in his ease,” Rouse asks us to invoke our equitable power to toll the statute of limitations by one day.
The majority, however, concludes that Rouse has failed to meet the requirements necessary for a court to equitably toll the statute of limitations. According to the majority, a petitioner in Rouse’s position must demonstrate “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time” in order to merit equitable tolling. Ante at 245. Apparently, in the majority’s view, all that we have before us in this case is a “garden variety claim[ ] of excusable neglect.” Id. Dismissing as irrelevant both the nature of Rouse’s underlying claim and the fact that he faces a death sentence, the majority concludes that the district court properly refused to equitably toll the statute of limitations. Id. at 241, 251. I cannot agree.
As the majority properly acknowledges, ante at 300, we have recently joined every other circuit to consider the question to hold that the statute of limitations at issue *259here, 28 U.S.C.A. § 2244(d) (West Supp. 2003), is subject to equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000) (collecting cases); see also Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2129-30, 150 L.Ed.2d 251 (2001) (Stevens, J., joined by Souter, J., (concurring)); Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 338, n. *, 98 S.Ct. 2370 (1978) (Burger, C.J., concurring) (“The authority of a federal court, sitting as a chancellor, to toll a statute of limitations on equitable grounds is a well-established part of our jurisprudence.” (citations omitted)). Thus, in appropriate cases, we clearly have the power to grant the relief Rouse seeks.
In making his case for such relief, Rouse maintains that his court-appointed lawyers “played Russian roulette with [his] rights” in waiting to file his petition, and that their “inexcusable” and “unconscionable” conduct provides grounds for equitable tolling of the statute of limitations in his case. Supplemental Brief of Appellant at 7. He notes that he has diligently pursued every previous avenue of review available to him. Moreover, the record reveals that Rouse personally neither knew of nor consented to a late filing of his federal habeas petition, and no evidence suggests that the late filing was a tactical decision of counsel.3 Nor has the State made any showing that it has been, or would be, prejudiced in any way by the one-day delay in the filing of Rouse’s first habeas petition, and it is hard to imagine that such a showing could be made.
Nevertheless, if Rouse had offered only these reasons, our precedent might well have foreclosed equitable tolling, even in the face of the egregious attorney error at issue here. For we have held that “a mistake by a party’s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party’s control where equity should step in to give the party the benefit of his erroneous understanding.” Harris, 209 F.3d at 331; see also Spencer v. Sutton, 239 F.3d 626, 628-29 (4th Cir.2001). But we reached this conclusion in cases involving greater delay, far less compelling ha-beas claims that had received at least one hearing, and petitioners who did not face execution, that irrevocable and “most ... unfathomable of penalties.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Marshall, J., writing on behalf of four justices).
In so holding, we also expressly recognized that equitable tolling is “‘a discretionary doctrine that turns on the facts and circumstances of a particular case’ ” and, therefore, “ ‘does not lend itself to *260bright-line rules.’” Harris, 209 F.3d at 330 (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999)). As we explained, although some statutes of limitations “serve[ ] policy interests that would be adversely affected if the statutory limitations provisions were not strictly adhered to,” the habeas context is different, warranting greater flexibility in the application of the AEDPA’s statute of limitations. Id. at 329. Thus, in determining whether to exercise its equitable power to toll the statute of limitations, circuit precedent requires a court to consider the “facts and circumstances of a particular case.” Id. at 330. Accordingly, I turn to that inquiry.
III.
Few cases present “facts and circumstances” as compelling as this one. Not only did Rouse file his petition only one day late, but also his court-appointed counsel’s disastrous error rested on plausible, albeit incorrect, legal theories, some of which have since been clarified. See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001) (noting lack of clarity in the relevant law and plausibility of a petitioner’s legal theory in equitably tolling the AEDPA), cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 L.Ed.2d 241 (2001). In addition, Rouse’s mental shortcomings, see supra note 3, rendered his capacity to monitor his counsel marginal at best. And, Rouse has never received an evidentiary hearing on his habeas claims, in any forum — state or federal. Cf. Spencer, 239 F.3d at 627-28 (two evidentiary hearings in state court); Brief of Appellant in Harris, 209 F.3d 325 (evi-dentiary hearing in state court).4 Without equitable tolling, he will lose any hope of receiving such a hearing and will be afforded no federal habeas review at all.
Moreover, Rouse presents what must be considered on its face a powerful constitutional claim: that a juror’s personal vengeance and racial bias infected his death sentence. To date, he has never been afforded an opportunity to explore the evidence that one of his jurors harbored an invidious prejudice against African-Ameri*261cans, the evidence as to the potential effect of the sexual assault and murder of the juror’s mother on his impartiality, or the evidence that in fact the juror intentionally concealed this bias — all matters that would seem to require credibility determinations. If proved, these facts support a strong constitutional claim. See Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (reviewing the “strictures dictated by the Sixth and Fourteenth Amendments to ensure the impartiality of any jury that will undertake capital sentencing” (emphasis omitted)); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984); Rosales-Lopez v. United States, 451 U.S. 182, 190-91, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
Contrary to the majority’s assertion, ante at 251-254, the strength of the claims in a habeas petition must inform a court’s decision to exercise its equitable power to toll limitations at least in cases such as this one, where the evidentiary basis for such claims has never been subjected to judicial scrutiny. See Lonchar v. Thomas, 517 U.S. 314, 320, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996) (emphasizing the distinction between habeas claims suitable for summary dismissal and those warranting more attention in reversing a lower court’s employment of “special ad hoc ‘equitable’ reasons not encompassed within the framework” of the Habeas Corpus Rules to bar all consideration of a first federal capital habeas petition); see also Spencer, 239 F.3d at 630 n. 2 (suggesting that petitioner’s underlying habeas claim was weak when determining whether district court’s tolling decision was correct).5
Indeed, a facially strong constitutional claim that questions the fundamental fairness of the very process by which a petitioner was convicted and sentenced “compels review regardless of procedural defaults.” Murray v. Carrier, 477 U.S. 478, 501 n. 8, 106 S.Ct. 2639 (1986) (Stevens, J., concurring); see also Hensley v. Mun. Court, 411 U.S. 345, 349-50, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (“[H]a-beas corpus is not a static, narrow, formalistic remedy, but one which must retain the ability to cut through barriers of form and procedural mazes. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” (internal quotation marks and citations omitted)). We should remember, too, the limited relief that Rouse seeks: not that he be granted ha-beas relief, but merely that -he be given the opportunity to explore before a federal district court his evidence of juror bias. I cannot join a decision that would allow the most minor procedural default imaginable to prohibit all evidentiary inquiry into such a serious constitutional claim. To deny the very possibility of habeas relief under such circumstances is to denigrate the power and purpose of the Great Writ. See Carrier, 477 U.S. at 500, 106 S.Ct. 2639 (Stevens, J., concurring) (“[T]he central mission of the Great *262Writ should be the substance of ‘justice,’ not the form of procedures.”); Brown v. Allen, 344 U.S. 443, 453-54, 73 S.Ct. 397 (1953) (Black, J., dissenting) (embracing “the principle that it is never too late for courts in habeas corpus proceedings to look straight through procedural screens in order to prevent forfeiture of life or liberty in flagrant defiance of the Constitution” (citations omitted)).
Rouse’s call on our equitable powers is made all the more urgent by the fact that the sentence that is assertedly tainted by racial and personal bias is a death sentence. Until today, we have not had occasion to consider equitable tolling in a habe-as case involving a sentence of death. Cf. Spencer, 239 F.3d at 627; Harris, 209 F.3d at 326. But we have implicitly recognized that the presence of a death sentence affects the equitable tolling analysis. See Harris, 209 F.3d at 329 (noting that although in some contexts, strict limitations rules may have to yield “occasional injustices ... in order to maintain a workable regime,” these “occasional injustices ... are decidedly not an acceptable cost of doing business in death penalty cases” (quoting Calderon v. United States Dist. Court for the Cent. Dist. Of Cal. (Beeler), 128 F.3d 1283, 1288 n. 4 (9th Cir.1997) (internal quotation marks and citations omitted), overruled on other grounds, 163 F.3d 530 (9th Cir.1998) (en banc))).
The fact is that death is different. The phrase itself is timeworn and familiar— because it is true. Most of us, if we have lived long enough, have seen death. Each of us will face and know death one day. We share therefore in the understanding, though imperfect and incomplete, that “in its finality,” death “differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion). For this reason, the death penalty presents different and far more serious concerns than any other sanction. See, e.g., Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2441, 153 L.Ed.2d 556 (2002) (“[T]here is no doubt that ‘[djeath is different.’ ” (citation omitted)); Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion) (stating that “death is a different kind of punishment”); see also Bracy v. Schomig, 286 F.3d 406, 415 (7th Cir.2002) (en banc) (“[W]e are again mindful that death is indeed different.”), cert. denied, 537 U.S. 894, 123 S.Ct. 169 (2002). In short, the conclusion “that ‘death is different’ ... mean[s] that the firm view of our society demands that it be treated differently in certain identifiable respects.... ” Thompson v. Oklahoma, 487 U.S. 815, 877-78, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (Scalia, J., dissenting).
Accordingly, when we consider the deliberate infliction of death, even on someone who has wantonly dealt it out, we must act with particular care. As the Supreme Court has emphasized, “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,” that is, “the procedure by which the State imposes the death sentence,” to “ensur[e] that the death penalty is not meted out arbitrarily or capriciously.” California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (emphasis in original) (footnote with citations omitted); accord Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (opinion of Scalia, J., joined by Rehnquist, C.J.); Caldwell v. Mississippi 472 U.S. 320, 329, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); see also Bracy, 286 F.3d at 412 (“[L]ike all others sentenced to death, Bracy and Collins are entitled to our painstaking review of their convictions and death sentence *263because, as the Supreme Court has often recognized, death is different.” (citation omitted)).
Thus, the Supreme Court itself has, “ ‘in the interests of justice’,” been willing to overlook requirements that it would ordinarily impose in non-capital cases. Eddings v. Oklahoma, 455 U.S. 104, 117 n. *, 102 S.Ct. 869 (1982) (O’Connor, J., concurring) (quoting Wood v. Georgia, 450 U.S. 261, 265 n. 5, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)). For example, the Court has treated the requirement that an argument be raised below and in the certiorari petition, ordinarily prerequisites for Supreme Court review, as merely “technical[ ].” Id. (O’Connor, J., concurring in the Court’s reversal of a death, sentence (despite a dissenting argument that the ground for reversal had been waived) “[bjecause the trial court’s failure ... risks erroneous imposition of the death sentence” (citation omitted)); see id. at 105, 113 n. 9, 102 S.Ct. 869 (majority opinion) (reversing death sentence on basis of an argument habeas petitioner failed to raise below (pri- or to petition for rehearing) or even “expressly present” in his petition for certiorari, and citing Wood, 450 U.S. at 265 n. 5, 101 S.Ct. 1097 which notes that a court may overlook such failures “in the interests of justice”); see also Dobbs v. Zant, 506 U.S. 357, 360, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993) (Scalia, J., concurring) (“I am willing to make an exception from that [previously stated ‘general’ internal] rule in capital cases — but only where there is a realistic likelihood that the ‘technical error’ affected the conviction or the sentence.” (emphasis added)).
And, contrary to the majority’s suggestion, ante at 253-255, the Court has not foreclosed the possibility that the fact of a death sentence should inform a court’s consideration of a petitioner’s underlying claims in post-conviction proceedings. Although today we confront “only” a district court’s decision on habeas review not to toll the statute of limitations, upholding that decision denies the possibility of any substantive judicial inquiry into the evidence underlying Rouse’s juror bias claim. We cannot hide behind procedural rules when confronted with such circumstances.
Indeed, the Supreme Court has made clear that a reviewing court must exercise great care before allowing a capital petitioner’s initial claim for federal habeas relief to be summarily dismissed. See Lonchar, 517 U.S. at 324, 116 S.Ct. 1293 (noting in a capital case that “[dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty” (emphasis in original) (citation omitted)). This is particularly so when, as here, the petitioner discovers the evidence underlying his claim after he has exhausted his direct appeal and without receiving any eviden-tiary hearing on the matter in state court. Sitting in equity to determine whether a federal limitations period should be tolled for a single day to afford a prisoner facing execution any federal habeas review, or any evidentiary hearing at all, we should follow the Supreme Court and recognize that the finality of death heightens our responsibility to ensure that the matter is disposed of “as law and justice require.” 28 U.S.C.A. § 2243 (West 1994). “Given the irreversibility of capital punishment,” a claim that does “not surface until after the direct review is complete, ... deserves searching, adversarial scrutiny.” Murray v. Giarratano, 492 U.S. 1, 24-25, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (Stevens, J., dissenting). Because this is the posture in which Rouse’s claim of juror bias reaches us, to confine even the possibility of habeas relief -within rigid formalistic boundaries ties the hand of equity in a manner funda*264mentally at odds with our Nation’s commitment to fair process.
A decision to toll the statute of limitations in this case, moreover, raises none of the concerns related to constitutional interpretation that are sometimes invoked in opposition to a “ ‘death-is-different’ jurisprudence,” Shafer v. South Carolina, 532 U.S. 36, 55, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (Scalia, J., dissenting); see Simmons v. South Carolina, 512 U.S. 154, 178-79, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (Scalia, J., joined by Thomas, J., dissenting), and it would not alter the “ ‘standard of review on federal habeas corpus,’ ” because AEDPA’s stringent standards of review would of course still apply. Herrera v. Collins, 506 U.S. 390, 405, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (quoting Giarratano, 492 U.S. at 9, 109 S.Ct. 2765 (plurality opinion)); see 28 U.S.C.A. § 2254(d), (e) (West Supp.2003). Similarly, equitable tolling of this federal deadline poses no threat of intrusion on a state’s enforcement of its own procedural rules, cf. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), on a state’s legislative choices, cf. Giarratano, 492 U.S. at 13-15, 109 S.Ct. 2765 (O’Connor, J., concurring, and Kennedy, J., concurring in the judgment), or on the prerogatives of the executive branch. Cf. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276, 284-85, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (plurality opinion).
Nor is there any reason to fear that within our own circuit equitable tolling in Rouse’s case might “loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation.” Harris, 209 F.3d at 330. Of course, all non-capital petitions would continue to be governed by Harris. And even in capital cases, the precedential effect of tolling in this case would be slight. A deliberate decision to file late — to gamble any chance of federal review of a capital petitioner’s habeas claims in hopes that equity would slightly extend the deadline — would constitute recklessness of a nature and a magnitude that an appellate court cannot consciously impute to its Bar. Even if such tactics were employed, equitable tolling is “a discretionary doctrine that turns on the facts and circumstances of a particular case,” id. (internal quotation marks and citation omitted). Application of the doctrine would thus continue to depend on a court’s confidence that “there is no evidence of abuse of the process.” See Fahy, 240 F.3d at 245.
Until today, it appears that no appellate court has withheld all federal habeas review from a man under sentence of death, who presents evidence supporting a facially strong constitutional claim, but who filed his federal petition one day late.6 In fact, other courts have tolled the very limitations period at issue here in cases involv*265ing more egregious delay. In a capital case involving a petition that was thirty-five days late due to attorney error in interpreting debatable procedural provisions, the Third Circuit tolled the precise statute at issue here. See Fahy, 240 F.3d at 245; accord Banks v. Horn, 271 F.3d 527, 534-35 (3d Cir.2001) (applying equitable tolling in a capital case involving a petitioner convicted of murdering thirteen people), rev’d on other grounds, 536 U.S. 266, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). The Fahy court reasoned that a court “must allow less than ‘extraordinary1 circumstances to trigger equitable tolling of the AEDPA’s statute of limitations when a [capital] petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair.” Fahy, 240 F.3d at 245; see also Corjasso v. Ayers, 278 F.3d 874 (9th Cir.2002) (tolling AEDPA’s statute of limitations despite a procedural defect and listing cases); Lagrone v. Cockrell, 2002 WL 1968246, at *8-9 (N.D.Tex. Aug.19, 2002); De Jesus v. Miller, 215 F.Supp.2d 410, 412 (S.D.N.Y.2002).7
Like the Third Circuit, I believe it is appropriate “to exercise this leniency under the facts of this capital case where there is no evidence of abuse of the process.” Fahy, 240 F.3d at 245. Given that this case involves the shortest possible delay in filing a habeas petition, a total lack of prejudice to the State, a petitioner who, despite considerable mental shortcomings, has been diligent in all other regards, evidence of an apparently compelling constitutional claim that has never been explored by any court, and the fact of a death sentence, to refuse tolling here would be “unconscionable” and might well result in “gross injustice.” Harris, 209 F.3d at 330. If ever a case was suitable for an exercise of a court’s discretion — the most minor exercise imaginable, a one-day tolling of a limitations period — surely, this is that case.
IV.
Today, a majority of this court allows the State of North Carolina to proceed with the execution of a man who may have been convicted and sentenced by a biased jury. When a court asks whether a petitioner in Rouse’s position has a “special claim on equity,” it should look to justice and conscience, calibrated by judicial experience. I believe that a pending death sentence must affect our exercise of conscience and our sense of justice.
Confronting the particular demands of capital cases, the Supreme Court “has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” Eddings, 455 U.S. at 118, 102 S.Ct. 869 (O’Connor, J., concurring) (emphasis added); see also Gardner, 430 U.S. at 358, 97 S.Ct. 1197 (plurality opinion) (“It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”). A strong showing that a death sentence may have been imposed out of pure bias *266should weigh more heavily with us than one day’s non-prejudicial delay, and the vague risk, entirely within our control, that we ourselves will succumb to whim or prejudice in the future.
Less than twenty years ago, Justice Lewis Powell famously expressed his confidence that it is “unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free.” Ford, 477 U.S. at 420, 106 S.Ct. 2595 (Powell, J., concurring in part and in the judgment). By imposing a statute of limitations on federal habe-as petitions in the AEDPA, Congress struck a new balance, accepting a higher likelihood of such cases, and of cases in which undiscovered trial error had infected a sentence. Under the AEDPA, undoubtedly, some capital petitioners will be denied all federal habeas review for the sake of finality. But Congress did not eliminate our equitable power to toll the statute in the interest of justice.
As the majority suggests, the principles at issue in this case are indeed “large.” Ante at 256. The Supreme Court has long recognized the writ of habeas corpus as the most powerful of equitable remedies, the “best and only sufficient defence of personal freedom.” Ex Parte Yerger, 75 U.S. (8 Wall.) 85, 95, 19 L.Ed. 332 (1868). Thus, “[t]here is no higher duty of a court, under our constitutional system, than the ... adjudication of petitions for writs of habeas corpus.” Harris v. Nelson, 394 U.S. 286, 292, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Yet, invoking principles of comity, finality, and federalism, the majority determines to deny any habeas relief to a petitioner under penalty of death who has filed his first federal habeas petition one day late. The majority believes that strict adherence to a statutory deadline must be maintained, even in the face of compelling new evidence of juror bias in a death penalty case, lest the future application of the AEDPA limitations period unravel into an “unpredictable and indeterminate” inquiry. Ante at 256. As explained above, such fears are baseless given the extraordinary facts of this case. Moreover, although comity, finality, and federalism are certainly important, no principle is more fundamental and no “duty of a court” is “higher,” in “our constitutional system” than “adjudication of petitions for writs of habeas corpus, for it is in such petitions that a person in custody” can challenge his “unlawful confinement,” Nelson, 394 U.S. at 292, 89 S.Ct. 1082, and through such adjudication that courts ensure that the imposition of death by public authority occurs only after fair process.
Kenneth Rouse faces his death with reason to believe that one of the twelve citizens entrusted with doing impartial justice in his case sought so eagerly to condemn him that the juror deliberately misled the court, hiding basic facts as to his particular bias against Rouse and his contempt for all African Americans. If not in Rouse’s interest then in the interest of justice, our court should not allow one day’s delay to rob a man on death row of all federal habeas review of such a serious and troubling claim.
In keeping with the Supreme Court’s teaching that capital cases are different, I would toll the statute of limitations in the rare circumstances presented in this case. Judge Michael, Judge King, and Judge Gregory join in this dissent.
. Indeed, the district court could not have examined the claim in any depth, because it rejected Rouse’s petition at such an early stage that the decision of the state post-conviction court, the dispositive decision for federal habeas review, was not even part of the record before the district court. Moreover, I note that procedural decisions on limitations grounds typically occur early, and in considering equitable tolling an appellate court should take account of this, rather than assume that a district court will be able to undertake a full review in considering tolling. After all, it is the State's burden to file the state-court opinion, not the petitioner’s, and a State need not file the state-court opinion until the State files its answer to the habeas petition in federal court. See Fed. R. Governing Section 2254 Cases 2, 5. Thus, if a State moves to dismiss on timeliness grounds before ever filing an answer, as North Carolina officials did here, the habeas court may well not have the state-court opinion in the record before it.
. The North Carolina Supreme Court denied certiorari on February 5, 1999. Rouse’s petition would thus have been due on February 5, 2000. See Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir.2000). In 2000, however, February 5 was a Saturday. By application of Federal Rule of Civil Procedure 6(a), see id., Rouse had until the next working day to file his petition. The petition was therefore due on Monday, February 7, 2000 — one day before Rouse filed it. Despite the magistrate judge’s clear ruling on this point, see J.A. 320 (concluding that "the petition filed on February 8, 2000 was one day late”), which was undisturbed by the district court, the State— perhaps because of its unease with this fact— omits any mention of the length of the default in its brief. Nonetheless, it is clear, as the majority concedes, ante at 250-251, n. 14; 253, that we confront today a first federal habeas petition that was just one day late.
. I agree that Rouse's health does not warrant tolling. Rouse’s habeas lawyers were able to file his habeas petition on February 8, and Rouse provides no reason why his medical condition barred filing one day earlier. However, I note that Rouse’s ability to monitor his court-appointed counsel, who, according to the majority, bound Rouse by their errors "not because he participated in, ratified, or condoned their decision, but because they were his agents,” can hardly be considered normal under any traditional understanding of "standard principles of agency." See ante at 248-249. As the State acknowledges, Rouse’s mental ability, although one category "above mental retardation,” was classified as " 'borderline intellectual functioning.’ ” Supplemental Brief of Appellee at 3. Psychiatric evaluations revealed that during the 1980s and 1990s Rouse had an IQ of between 70 and 80, and that, due to a combination of "minimal brain dysfunction,” "pediatric head injury,” "a severely dysfunctional family,” and "early substance abuse,” he reached adulthood "with an extremely compromised psychological and neuropsychological functioning.” See J.A. 193-201. These facts render it impossible to conclude that Rouse could meaningfully participate in an agency relationship with his lawyers, especially one concerning the bewildering complexity of the habeas corpus rules.
. The state post-conviction court (the MAR court), whose ruling, of course, was not even before the district court, see supra n. 1, disposed of Rouse's claim, apparently on the basis of a credibility determination but without a hearing. After noting "that the acoustics in the courtroom where defendant was tried sometimes makes hearing difficult,” the state MAR court concluded that the assertedly biased juror "did not hear” a question as to whether any juror had a relative who had been a victim of a violent crime. Yet the following facts contradict this conclusion: (1) the juror’s admission that "I knew that if I disclosed what had happened to my mother, I would be excused from serving ... I wanted to serve, ... so I did not reveal the information”; (2) the state post-conviction court's acknowledgment of this admission; (3) the court's express finding (substantiated by the voir dire transcript) that all prospective jurors were asked if they had "been a victim of any kind of violent crime or any family members or any close relative ever been a victim of a violent crime”; (4) the court's further express finding that the transcript reflected no response to that question; and (5) the court's acknowledgment that immediately after the group question about family victims, prospective jurors were told that the trial "involv[ed] a first-degree murder, armed robbery, and rape” (information the juror plainly took in, based on his knowledge of the nature of the trial and his resulting admitted desire to serve on the jury). State MAR Court, Post-Argument Supp. to Appellate Record, App. 3 at 3, 4, 15. Therefore, the state court apparently reached its dispositive finding, a credibility determination that contradicts the official written record of the voir dire, without the benefit of face-to-face consideration of any sort, without a hearing, and without even a direct assertion by the juror in support of the finding. Thus, the MAR court's "findings” would be due no deference even if they had been before the district court. See 28 U.S.C.A. § 2254(d)(2), (e)(1) (West Supp. 2003) (governing federal habeas review of state-court factual findings under AEDPA).
. There is nothing "circular,” ante at 252 n. 15, in taking into account the merits of a petitioner's claim when determining Whether that claim deserves full consideration. Cf. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) and Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (following precisely this approach in determining whether a certificate of appealability should issue under 28 U.S.C.A. § 2253(c)). Clearly, if Rouse's underlying claims did not even facially allege the denial of a constitutional right, the district court's decision not to toll the statute of limitations would not be an issue.
. Although other courts have on occasion refused tolling in capital cases, they have done so in cases involving greater (typically much greater) delay, or when petitioners have shown less diligence than Rouse, or both. See Fierro v. Cockrell, 294 F.3d 674, 679-80 (5th Cir.2002) (considering a habeas petition filed three months late), cert. denied, - U.S. -, 123 S.Ct. 1621, 155 L.Ed.2d 489 (2003); Lookingbill v. Cockrell, 293 F.3d 256, 263-64 (5th Cir.2002) (considering a habeas petition filed four days late and excused only by counsel’s somewhat late appointment and “busy docket”); Kreutzer v. Bowersox, 231 F.3d 460, 461-62 (8th Cir.2000) (considering a habeas petition filed two weeks late); Cantu-Tzin v. Johnson, 162 F.3d 295, 297-99 (5th Cir.1998) (considering a case in which no habeas petition was ever filed and a motion for stay was filed two months after the deadline for a petition had passed). Regardless of diligence, however, I have found no case in which any circuit refused equitable tolling to a capital petitioner who filed his federal habeas petition one day late.
. No one quarrels with the AEDPA’s intent to "reduce delays ... and to further the principles of comity, finality and federalism.” Ante at 246 (quoting Woodford v. Garceau, - U.S. -, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003) (internal citation and quotation marks omitted)). But allowing an execution to proceed without any exploration of the evidence that the conviction and sentence may be infected by racial bias renders the Great Writ a paper tiger and is fundamentally at odds with this nation’s commitment to fair process and justice for all.