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Habeas Hints
This column is intended to provide habeas hints" to prisoners who are handling habeas corpus petitions as their own attorneys (in pro per). The focus of the column is post-conviction practice under the AEDPA, the 1996 law which now governs habeas corpus practice throughout the U.S.
EXHAUSTION UPDATE
Stay and Abeyance
Stay and abeyance" is the legal name for what happens when the federal court holds onto (stays and abets) a federal habeas petition while the petitioner goes back to state court to exhaust one or more unexhausted claims that were included in the petition. In this column we will look at this important means for timely exhausting habeas corpus claims, and I'll give you some Habeas Hints" for how to most effectively employ stay and abeyance in the wake of the U.S. Supreme Court's recent decision in Rhines v. Weber, 124 S.Ct. 1528 (2005).
A mixed" habeas petition is one which contains at least one exhausted claim and one or more unexhausted claims. A federal court has no power to hear a mixed petition, and must either (1) dismiss the entire petition without prejudice (meaning you can file again in federal court without running into the successive petition bar); or (2) allow the petitioner to dismiss the unexhausted claims and go forward in federal court with an amended petition containing only the exhausted claims. Making either one of these choices creates a dilemma for the federal petitioner: The problem with alternative (2) is that it requires the permanent dismissal of unexhausted claims (or unexhausted facts within otherwise exhausted claims) which might, upon exhaustion, have a better chance of success than the already exhausted claims. The problem with (1) is that, although the dismissal is without prejudice, the time spent in federal court prior to the dismissal is not tolled against the AEDPA statute of limitations. Usually, by the time a federal court gets around to issuing a ruling forcing the petitioner deal with a mixed petition, whatever time remained on the statute of limitations will have been used up, so that it will be impossible to go back to state court, exhaust, and come back to federal court without the new federal petition being barred by the statute of limitations.
In an effort to deal with the dilemma posed above, lower federal courts began offering the petitioner stay and abeyance" as a third alternative: allowing the petitioner to dismiss the unexhausted claims but staying the federal petition instead of dismissing it while the petitioner returned to state court to exhaust his un-exhausted claims. See, e.g., Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Stay and abeyance allows the petitioner to have his cake and eat it, too: The petitioner gets to return to state court to exhaust the un-exhausted claims, but as long as s/he files the state exhaustion petition promptly after dismissing his un-exhausted claims and promptly returns to federal court after exhaustion is completed, the original federal petition, which has been stayed, will be there waiting, and the petitioner can simply move to amend the stayed petition to add the newly exhausted claims.
Given the obvious benefits of the stay and abeyance alternative, most petitioners who were given the option of stay and abeyance elected to use it. Meanwhile, several circuit courts began holding that it was error for a district court not to offer stay and abeyance as an alternative to dismissal. As a result, some petitioners began to abuse stay and abeyance by dragging their feet on exhausting claims in state court until just before the AEDPA statute of limitations was about to run, and then falling back on stay and abeyance as a means of taking several more months or even years to exhaust habeas claims that, with due diligence, could have been exhausted before the federal petition was filed in the first place. This potential for abuse caused the U.S. Supreme Court to grant review.
In Rhines, a federal petitioner had filed his petition several months ahead of the statute of limitations, but by the time the district court got around to finding that it was a mixed petition, all of the remaining time on the AEDPA statute of limitations had been used up. Hence, and because the petitioner did not want to dismiss his un-exhausted claims, the district court granted stay and abeyance of the federal petition while the petitioner returned to state court to complete exhaustion, allowing him to return to federal court after state exhaustion was completed and staying the federal petition in the meantime. Nevertheless, the Eighth Circuit, which had previously held that stay and abeyance was only authorized in truly exceptional circumstances, wiped out the stay and ordered the petitioner to return to district court to pursue his only remaining option to dismiss his un-exhausted claims and proceed without them. The petitioner sought review in the Supreme Court, and the Court took the case.
On the one hand, certain members of the Court were concerned that abuse of the stay and abeyance procedure was encouraging the same kinds of delays and lack of diligence that the AEDPA statute of limitations was designed to do away with. Other justices, however, felt that there was a continued need for stay and abeyance as a safety valve for federal habeas corpus petitioners, most of whom file their petitions without the assistance of lawyers, to timely exhaust claims that, for some good reason, had not been exhausted before it came time to file the federal habeas petition. These competing considerations produced an opinion in Rhines that is a mixed bag for petitioners. The good news is that the Supreme Court upheld the discretion of a district court judge to order stay and abeyance as an alternative to a dismissal. The bad news is that the Court, in an effort to curb abuses, held that stay and abeyance is only to be used henceforth in limited circumstances, namely where the petitioner can show: (a) good cause for the failure to exhaust the un-exhausted claims before filing in federal court; and (b) that the un-exhausted claims are potentially meritorious. Furthermore, the Court held that, where a stay was allowed, it had to be conditional upon a strict time limit (30 days was suggested) within which the petitioner would have go back to state court to exhaust and, after exhaustion is completed, return to federal court.
The Rhines decision should serve as a warning to petitioners that the availability of the stay and abeyance procedure will be more limited than it has been in the past. On the other hand, because stay and abeyance is still a viable option, a petitioner whose AEDPA statute of limitations is about to run should always file a federal habeas corpus petition before the AEDPA time runs out, and then should consider the following suggestions in attempting to obtain stay and abeyance in the wake of the Rhines decision:
Habeas Hints
1. There's no need to address the stay and abeyance issue in the petition. Instead, wait until the Respondent raises the issue in a Motion to Dismiss on the basis that the petition is a mixed petition, containing claims that are unexhausted. Upon receipt of such a motion, the court will typically issue a briefing schedule, giving you a date by which you must file an Opposition to the Motion to Dismiss. Your Opposition (which you must file in the time limits imposed or after timely applying for and receiving an extension of time), is the place to address the stay and abeyance option.
2. File the following documents as part of your Opposition: [1] Opposition to Motion to Dismiss; [2] Motion For Stay and Abeyance; [3] Proposed First Amended Petition; and [4] Points and Authorities in Support of Opposition.
3. Document #1 should be a brief summary-type document, stating that Respondent has moved to dismiss and that you are opposing the motion on the grounds that, although the petition does contain un-exhausted claims, you are seeking a stay and abeyance" of the petition so that the federal petition can be stayed while you return to state court to exhaust your un-exhausted claims. Also state in your Opposition that you are filing a proposed First Amended Petition that temporarily deletes the un-exhausted claims; that you are asking the court to file the amended petition, conditional upon the court granting your motion to stay it while you return to state court to exhaust; that you agree both to file your state exhaustion petition and to return to federal court after exhaustion is completed within 30 days or whatever other time limit the court may set; and that, upon returning to federal court after completion of exhaustion, you will promptly submit a Second Amended Petition that will contain both the previously exhausted claims which were stayed, along with the newly-exhausted claims.
4. Document #2 is your Motion for Stay and Abeyance, and is the most important one. It should start out with a Notice of Motion, in which you formally notify Respondent and the court that you are moving for a stay pending exhaustion. Next, you must provide a Declaration in Support of Motion for Stay and Abeyance, which will contain the facts you are alleging in support of the stay. Although the facts contained in the declaration will, of course, vary from case to case, it will always be necessary to state facts which provide good reasons why you did not exhaust the un-exhausted claims before filing in federal court. In providing your reasons, you should mention in a first paragraph that you have been incarcerated since your conviction, that you are indigent, that prison law library services are limited, etc. However, that sort of thing is not going to be enough to get a stay, since every prisoner labors under the same difficulties. Therefore, you must go on in succeeding paragraphs to state reasons specific to your case which made it impossible to exhaust your claims before filing in federal court. Some examples of facts you should always state if you can, supported by as much detail as possible, are: (a) continuing investigation initiated since the trial and/or appeal; (b) delays caused by your appellate attorney's failure to get you all of the files and documents promptly after the appeal was concluded; (c) any other delays caused by ineffective assistance of any of your previous attorneys; (d) claims that have been only recently discovered, for whatever reasons; (e) new evidence coming to light since the trial was over; and (f) new law bearing on your claims. After stating facts explaining good cause for your failure to exhaust previously, state in a separate paragraph that your claims are potentially meritorious" because they raise claims based on the violation of your rights under the U.S. Constitution, and because the facts you have alleged in the petition, if taken as true, are sufficient to merit relief. Last, include a final paragraph stating that any delay in exhausting your claims is solely the result of the facts you have alleged in your declaration, and not the result of any intentionally dilatory (delaying) litigation tactics.
5. To prepare Doc. #3, simply delete the un-exhausted claims from your original petition and entitle it Proposed First Amended Petition for Writ of Habeas Corpus.
6. Doc. #4, the Points and Authorities, should include a citation to Rhines, and should argue that you have satisfied its requirements, namely that there is good cause for your failure to exhaust previously, and that your unexhausted claims are, at the very least, potentially meritorious.
7. If the court grants you a stay, then consider exhausting in the fastest possible way. For example, in California, you need only file in the California Supreme Court to exhaust your claims, rather than starting out at superior court level and working your way up though the Court of Appeal.
8. If the court refuses you a stay, and if you have to dismiss your unexhausted claims to avoid a statute of limitations bar, then be prepared to do so. However, you might want to first consider asking the district court for permission to appeal and for a stay while you are appealing the court's denial of your motion for stay and abeyance.
Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which explains habeas corpus and the AEDPA. The latest edition (Ed. 4.04, revised Dec. 2004) is now shipping and can be purchased with a check or money order for $29.99 (cost is all-inclusive for prisoners, others pay $5 extra for postage and handling; no order form necessary), directly from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115."
EXHAUSTION UPDATE
Stay and Abeyance
Stay and abeyance" is the legal name for what happens when the federal court holds onto (stays and abets) a federal habeas petition while the petitioner goes back to state court to exhaust one or more unexhausted claims that were included in the petition. In this column we will look at this important means for timely exhausting habeas corpus claims, and I'll give you some Habeas Hints" for how to most effectively employ stay and abeyance in the wake of the U.S. Supreme Court's recent decision in Rhines v. Weber, 124 S.Ct. 1528 (2005).
A mixed" habeas petition is one which contains at least one exhausted claim and one or more unexhausted claims. A federal court has no power to hear a mixed petition, and must either (1) dismiss the entire petition without prejudice (meaning you can file again in federal court without running into the successive petition bar); or (2) allow the petitioner to dismiss the unexhausted claims and go forward in federal court with an amended petition containing only the exhausted claims. Making either one of these choices creates a dilemma for the federal petitioner: The problem with alternative (2) is that it requires the permanent dismissal of unexhausted claims (or unexhausted facts within otherwise exhausted claims) which might, upon exhaustion, have a better chance of success than the already exhausted claims. The problem with (1) is that, although the dismissal is without prejudice, the time spent in federal court prior to the dismissal is not tolled against the AEDPA statute of limitations. Usually, by the time a federal court gets around to issuing a ruling forcing the petitioner deal with a mixed petition, whatever time remained on the statute of limitations will have been used up, so that it will be impossible to go back to state court, exhaust, and come back to federal court without the new federal petition being barred by the statute of limitations.
In an effort to deal with the dilemma posed above, lower federal courts began offering the petitioner stay and abeyance" as a third alternative: allowing the petitioner to dismiss the unexhausted claims but staying the federal petition instead of dismissing it while the petitioner returned to state court to exhaust his un-exhausted claims. See, e.g., Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Stay and abeyance allows the petitioner to have his cake and eat it, too: The petitioner gets to return to state court to exhaust the un-exhausted claims, but as long as s/he files the state exhaustion petition promptly after dismissing his un-exhausted claims and promptly returns to federal court after exhaustion is completed, the original federal petition, which has been stayed, will be there waiting, and the petitioner can simply move to amend the stayed petition to add the newly exhausted claims.
Given the obvious benefits of the stay and abeyance alternative, most petitioners who were given the option of stay and abeyance elected to use it. Meanwhile, several circuit courts began holding that it was error for a district court not to offer stay and abeyance as an alternative to dismissal. As a result, some petitioners began to abuse stay and abeyance by dragging their feet on exhausting claims in state court until just before the AEDPA statute of limitations was about to run, and then falling back on stay and abeyance as a means of taking several more months or even years to exhaust habeas claims that, with due diligence, could have been exhausted before the federal petition was filed in the first place. This potential for abuse caused the U.S. Supreme Court to grant review.
In Rhines, a federal petitioner had filed his petition several months ahead of the statute of limitations, but by the time the district court got around to finding that it was a mixed petition, all of the remaining time on the AEDPA statute of limitations had been used up. Hence, and because the petitioner did not want to dismiss his un-exhausted claims, the district court granted stay and abeyance of the federal petition while the petitioner returned to state court to complete exhaustion, allowing him to return to federal court after state exhaustion was completed and staying the federal petition in the meantime. Nevertheless, the Eighth Circuit, which had previously held that stay and abeyance was only authorized in truly exceptional circumstances, wiped out the stay and ordered the petitioner to return to district court to pursue his only remaining option to dismiss his un-exhausted claims and proceed without them. The petitioner sought review in the Supreme Court, and the Court took the case.
On the one hand, certain members of the Court were concerned that abuse of the stay and abeyance procedure was encouraging the same kinds of delays and lack of diligence that the AEDPA statute of limitations was designed to do away with. Other justices, however, felt that there was a continued need for stay and abeyance as a safety valve for federal habeas corpus petitioners, most of whom file their petitions without the assistance of lawyers, to timely exhaust claims that, for some good reason, had not been exhausted before it came time to file the federal habeas petition. These competing considerations produced an opinion in Rhines that is a mixed bag for petitioners. The good news is that the Supreme Court upheld the discretion of a district court judge to order stay and abeyance as an alternative to a dismissal. The bad news is that the Court, in an effort to curb abuses, held that stay and abeyance is only to be used henceforth in limited circumstances, namely where the petitioner can show: (a) good cause for the failure to exhaust the un-exhausted claims before filing in federal court; and (b) that the un-exhausted claims are potentially meritorious. Furthermore, the Court held that, where a stay was allowed, it had to be conditional upon a strict time limit (30 days was suggested) within which the petitioner would have go back to state court to exhaust and, after exhaustion is completed, return to federal court.
The Rhines decision should serve as a warning to petitioners that the availability of the stay and abeyance procedure will be more limited than it has been in the past. On the other hand, because stay and abeyance is still a viable option, a petitioner whose AEDPA statute of limitations is about to run should always file a federal habeas corpus petition before the AEDPA time runs out, and then should consider the following suggestions in attempting to obtain stay and abeyance in the wake of the Rhines decision:
Habeas Hints
1. There's no need to address the stay and abeyance issue in the petition. Instead, wait until the Respondent raises the issue in a Motion to Dismiss on the basis that the petition is a mixed petition, containing claims that are unexhausted. Upon receipt of such a motion, the court will typically issue a briefing schedule, giving you a date by which you must file an Opposition to the Motion to Dismiss. Your Opposition (which you must file in the time limits imposed or after timely applying for and receiving an extension of time), is the place to address the stay and abeyance option.
2. File the following documents as part of your Opposition: [1] Opposition to Motion to Dismiss; [2] Motion For Stay and Abeyance; [3] Proposed First Amended Petition; and [4] Points and Authorities in Support of Opposition.
3. Document #1 should be a brief summary-type document, stating that Respondent has moved to dismiss and that you are opposing the motion on the grounds that, although the petition does contain un-exhausted claims, you are seeking a stay and abeyance" of the petition so that the federal petition can be stayed while you return to state court to exhaust your un-exhausted claims. Also state in your Opposition that you are filing a proposed First Amended Petition that temporarily deletes the un-exhausted claims; that you are asking the court to file the amended petition, conditional upon the court granting your motion to stay it while you return to state court to exhaust; that you agree both to file your state exhaustion petition and to return to federal court after exhaustion is completed within 30 days or whatever other time limit the court may set; and that, upon returning to federal court after completion of exhaustion, you will promptly submit a Second Amended Petition that will contain both the previously exhausted claims which were stayed, along with the newly-exhausted claims.
4. Document #2 is your Motion for Stay and Abeyance, and is the most important one. It should start out with a Notice of Motion, in which you formally notify Respondent and the court that you are moving for a stay pending exhaustion. Next, you must provide a Declaration in Support of Motion for Stay and Abeyance, which will contain the facts you are alleging in support of the stay. Although the facts contained in the declaration will, of course, vary from case to case, it will always be necessary to state facts which provide good reasons why you did not exhaust the un-exhausted claims before filing in federal court. In providing your reasons, you should mention in a first paragraph that you have been incarcerated since your conviction, that you are indigent, that prison law library services are limited, etc. However, that sort of thing is not going to be enough to get a stay, since every prisoner labors under the same difficulties. Therefore, you must go on in succeeding paragraphs to state reasons specific to your case which made it impossible to exhaust your claims before filing in federal court. Some examples of facts you should always state if you can, supported by as much detail as possible, are: (a) continuing investigation initiated since the trial and/or appeal; (b) delays caused by your appellate attorney's failure to get you all of the files and documents promptly after the appeal was concluded; (c) any other delays caused by ineffective assistance of any of your previous attorneys; (d) claims that have been only recently discovered, for whatever reasons; (e) new evidence coming to light since the trial was over; and (f) new law bearing on your claims. After stating facts explaining good cause for your failure to exhaust previously, state in a separate paragraph that your claims are potentially meritorious" because they raise claims based on the violation of your rights under the U.S. Constitution, and because the facts you have alleged in the petition, if taken as true, are sufficient to merit relief. Last, include a final paragraph stating that any delay in exhausting your claims is solely the result of the facts you have alleged in your declaration, and not the result of any intentionally dilatory (delaying) litigation tactics.
5. To prepare Doc. #3, simply delete the un-exhausted claims from your original petition and entitle it Proposed First Amended Petition for Writ of Habeas Corpus.
6. Doc. #4, the Points and Authorities, should include a citation to Rhines, and should argue that you have satisfied its requirements, namely that there is good cause for your failure to exhaust previously, and that your unexhausted claims are, at the very least, potentially meritorious.
7. If the court grants you a stay, then consider exhausting in the fastest possible way. For example, in California, you need only file in the California Supreme Court to exhaust your claims, rather than starting out at superior court level and working your way up though the Court of Appeal.
8. If the court refuses you a stay, and if you have to dismiss your unexhausted claims to avoid a statute of limitations bar, then be prepared to do so. However, you might want to first consider asking the district court for permission to appeal and for a stay while you are appealing the court's denial of your motion for stay and abeyance.
Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which explains habeas corpus and the AEDPA. The latest edition (Ed. 4.04, revised Dec. 2004) is now shipping and can be purchased with a check or money order for $29.99 (cost is all-inclusive for prisoners, others pay $5 extra for postage and handling; no order form necessary), directly from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115."
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Related legal case
Rhines v. Weber
| Year | 2005 |
|---|---|
| Cite | 124 S.Ct. 1528 (2005). |
| Level | Supreme Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
Rhines v. Weber, 125 S.Ct. 1528, 161 L.Ed.2d 440 (U.S. 03/30/2005)
[1] SUPREME COURT OF THE UNITED STATES
[2] No. 03-9046
[3] 125 S.Ct. 1528, 161 L.Ed.2d 440, 73 USLW 4263, 2005 Daily Journal D.A.R. 3696, 5 Cal. Daily Op. Serv. 2714, 05 Cal. Daily Op. Serv. 2714
[4] March 30, 2005
[5] CHARLES RUSSELL RHINES, PETITIONER
v.
DOUGLAS WEBER, WARDEN
[6] SYLLABUS BY THE COURT
[7] OCTOBER TERM, 2004
[8] Argued January 12, 2005
[9] After petitioner Rhines' state conviction for first-degree murder and burglary became final and his state habeas petition was denied, he filed a federal habeas petition. Because the 1-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was tolled while his state petition was pending, see 28 U. S. C. §2244(d)(2), he had more than 11 months before the limitations period expired. However, by the time the District Court ruled that eight of his claims had not been exhausted in state court, the limitations period had run. If the court had dismissed his "mixed" petition, Rhines would have been unable to refile after exhausting his claims, so the court decided to hold his federal petition in abeyance while he presented his unexhausted claims in state court, provided that he commenced the state proceedings within 60 days and returned to the District Court within 60 days of completing the exhaustion. The Eighth Circuit, which had previously held that a district court has no authority to hold mixed petitions in abeyance absent truly exceptional circumstances, vacated the stay and remanded the case for the District Court to determine whether Rhines could proceed by deleting unexhausted claims.
[10] Held: A district court has discretion to stay a mixed petition to allow a petitioner to present his unexhausted claims to the state court in the first instance and then to return to federal court for review of his perfected petition. Pp. 3-8.
[11] (a) Fourteen years before Congress enacted AEDPA, this Court held that federal district courts may not adjudicate mixed petitions but must give state courts the first opportunity to decide a petitioner's claims; imposed a "total exhaustion" requirement; and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court. Rose v. Lundy, 455 U. S. 509, 518-519. At the time, there was no statute of limitations on federal habeas petitions. But that changed with AEDPA, which preserved Lundy's total exhaustion requirement while imposing a 1-year limitations period, which is tolled during the pendency of a state, but not a federal, habeas petition. As a result, petitioners such as Rhines run the risk of forever losing their opportunity for federal review of their unexhausted claims. Even a petitioner who files early cannot control when a district court will resolve the exhaustion question. The gravity and difficulty of this problem has led some district courts to adopt the "stay-and-abeyance" procedure at issue. Pp. 3-5.
[12] (b) AEDPA does not deprive district courts of the authority to issue stays that are a proper exercise of their discretion, but it does circumscribe that discretion. Any solution to this problem therefore must be compatible with AEDPA's purposes. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality of state court judgments by allowing a petitioner to delay the resolution of the federal proceedings, and it undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court before filing his federal petition. Thus, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims. Even if good cause existed, the district court would abuse its discretion if it granted a stay when the unexhausted claims are plainly meritless. Where stay and abeyance is appropriate, the district court's discretion is still limited by AEDPA's timeliness concerns. If a district court does not place reasonable time limits on a petitioner's trip to state court and back, petitioners, especially capital petitioners, could frustrate AEDPA's finality goal by dragging out indefinitely their federal habeas review. And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant a stay at all. On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that he engaged in intentionally dilatory litigation tactics. Such a petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if the court determines that stay and abeyance is inappropriate, it should allow the petitioner to delete the unexhausted claims and proceed with the exhausted ones if dismissing the entire petition would unreasonably impair the petitioner's right to obtain federal relief. Pp. 5-8.
[13] 346 F. 3d 799, vacated and remanded.
[14] O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg and Breyer, JJ., joined.
[15] On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Court Below: 346 F. 3d 799
[16] Roberto A. Lange, by appointment of the Court, 543 U. S. ___, argued the cause and filed briefs for petitioner.
[17] Lawrence E. Long, Attorney General of South Dakota, argued the cause for respondent. With him on the brief was Craig M. Eichstadt, Deputy Attorney General.
[18] A brief of amicus curiae urging reversal was filed for the National Association of Criminal Defense Lawyers by Pamela Harris and David M. Porter.
[19] A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. de Nicola and Paul M. Roadarmel, Jr., Deputy Attorneys General, and Christopher L. Morano, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Kelly A. Ayotte of New Hampshire, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Gerald J. Pappert of Pennsylvania, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming.
[20] The opinion of the court was delivered by: Justice O'Connor
[21] 544 U. S. ____ (2005)
[22] We confront here the problem of a "mixed" petition for habeas corpus relief in which a state prisoner presents a federal court with a single petition containing some claims that have been exhausted in the state courts and some that have not. More precisely, we consider whether a federal district court has discretion to stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.
[23] I.
[24] Petitioner Charles Russell Rhines was convicted in South Dakota state court of first-degree murder and third-degree burglary and sentenced to death. His conviction became final on December 2, 1996, when we denied his initial petition for certiorari. Rhines v. South Dakota, 519 U. S. 1013. On December 5, 1996, Rhines filed a petition for state habeas corpus. App. 32. The state court denied his petition, and the Supreme Court of South Dakota affirmed on February 9, 2000, Rhines v. Weber, 2002 SD 19, 608 N. W. 2d 303. Rhines filed his pro se petition for federal habeas corpus pursuant to 28 U. S. C. §2254 in the United States District Court for the District of South Dakota on February 22, 2000. App. 3. Because the 1-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was tolled while Rhines' state habeas corpus petition was pending, see 28 U. S. C. §2244(d)(2), he still had more than 11 months left before the expiration of the limitations period.
[25] With the assistance of court-appointed counsel, Rhines filed an amended petition for writ of habeas corpus and statement of exhaustion on November 20, 2000, asserting 35 claims of constitutional defects in his conviction and sentence. App. 39-60. The State challenged 12 of those claims as unexhausted. Id., at 72-79. On July 3, 2002, approximately 18 months after Rhines had filed his amended federal habeas corpus petition, the District Court held that 8 of the 35 claims had not been exhausted. At this time, the AEDPA 1-year statute of limitations had run. See Duncan v. Walker, 533 U. S. 167, 181-182 (2001) (holding that the statute of limitations is not tolled during the pendancy of a federal petition). As a result, if the District Court had dismissed Rhines' mixed petition at that point, he would have been unable to refile in federal court after exhausting the unexhausted claims. Rhines therefore moved the District Court to hold his pending habeas petition in abeyance while he presented his unexhausted claims to the South Dakota courts. On July 3, 2002, the District Court granted the motion and issued a stay "conditioned upon petitioner commencing state court exhaustion proceedings within sixty days of this order and returning to this court within sixty days of completing such exhaustion." App. 136. In compliance with that order, Rhines filed his second state habeas corpus petition on August 22, 2003.
[26] The State appealed the District Court's stay of Rhines' mixed petition to the United States Court of Appeals for the Eighth Circuit. Relying on its decision in Akins v. Kenney, 341 F. 3d 681, 686 (2003) (holding that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances" (internal quotation marks omitted)), the Court of Appeals vacated the stay and remanded the case to the District Court to determine whether Rhines could proceed by deleting unexhausted claims from his petition. 346 F. 3d 799 (2003). We granted certiorari to resolve a split in the Circuits regarding the propriety of the District Court's "stay-and-abeyance" procedure. 542 U. S. ___ (2004). Compare, e.g., Crews v. Horn, 360 F. 3d 146, 152 (CA3 2004); and Zarvela v. Artuz, 254 F. 3d 374, 381 (CA2 2001), with 346 F. 3d 799 (2003) (case below).
[27] II.
[28] Fourteen years before Congress enacted AEDPA, we held in Rose v. Lundy, 455 U. S. 509 (1982), that federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims. We reasoned that the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims. Id., at 518-519. We noted that "[b]ecause `it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' federal courts apply the doctrine of comity." Id., at 518 (quoting Darr v. Burford, 339 U. S. 200, 204 (1950)). That doctrine " `teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' " 455 U. S., at 518.
[29] Accordingly, we imposed a requirement of "total exhaustion" and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court to present the unexhausted claims to that court in the first instance. Id., at 522. When we decided Lundy, there was no statute of limitations on the filing of federal habeas corpus petitions. As a result, petitioners who returned to state court to exhaust their previously unexhausted claims could come back to federal court to present their perfected petitions with relative ease. See Slack v. McDaniel, 529 U. S. 473, 486 (2000) (dismissal without prejudice under Lundy "contemplated that the prisoner could return to federal court after the requisite exhaustion").
[30] The enactment of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions. AEDPA preserved Lundy's total exhaustion requirement, see 28 U. S. C. §2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State"), but it also imposed a 1-year statute of limitations on the filing of federal petitions, §2244(d). Although the limitations period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review," §2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations, Duncan, supra, at 181-182.
[31] As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with "mixed" petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court. Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner's chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim. The problem is not limited to petitioners who file close to the AEDPA deadline. Even a petitioner who files early will have no way of controlling when the district court will resolve the question of exhaustion. Thus, whether a petitioner ever receives federal review of his claims may turn on which district court happens to hear his case.
[32] We recognize the gravity of this problem and the difficulty it has posed for petitioners and federal district courts alike. In an attempt to solve the problem, some district courts have adopted a version of the "stay-and-abeyance" procedure employed by the District Court below. Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.
[33] District courts do ordinarily have authority to issue stays, see Landis v. North American Co., 299 U. S. 248, 254 (1936), where such a stay would be a proper exercise of discretion, see Clinton v. Jones, 520 U. S. 681, 706 (1997). AEDPA does not deprive district courts of that authority, cf. 28 U. S. C. §2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State" (emphasis added)), but it does circumscribe their discretion. Any solution to this problem must therefore be compatible with AEDPA's purposes.
[34] One of the statute's purposes is to "reduce delays in the execution of state and federal criminal sentences, particularly in capital cases." Woodford v. Garceau, 538 U. S. 202, 206 (2003). See also Duncan, 533 U. S., at 179. AEDPA's 1-year limitations period "quite plainly serves the well-recognized interest in the finality of state court judgments." Ibid. It "reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Ibid.
[35] Moreover, Congress enacted AEDPA against the backdrop of Lundy's total exhaustion requirement. The tolling provision in §2244(d)(2) "balances the interests served by the exhaustion requirement and the limitation period," "by protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued." Duncan, supra, at 179. AEDPA thus encourages petitioners to seek relief from state courts in the first instance by tolling the 1-year limitations period while a "properly filed application for State post-conviction or other collateral review" is pending. 28 U. S. C. §2244(d)(2). This scheme reinforces the importance of Lundy's "simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." 455 U. S., at 520.
[36] Stay and abeyance, if employed too frequently, has the potential to undermine these twin purposes. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition. Cf. Duncan, supra, at 180 ("[D]iminution of statutory incentives to proceed first in state court would . . . increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce").
[37] For these reasons, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U. S. C. §2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
[38] Even where stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA. A mixed petition should not be stayed indefinitely. Though, generally, a prisoner's "principal interest . . . is in obtaining speedy federal relief on his claims," Lundy, supra, at 520 (plurality opinion), not all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits, petitioners could frustrate AEDPA's goal of finality by dragging out indefinitely their federal habeas review. Thus, district courts should place reasonable time limits on a petitioner's trip to state court and back. See, e.g., Zarvela, 254 F. 3d, at 381 ("[District courts] should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed"). And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all. See id., at 380-381.
[39] On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. See Lundy, 455 U. S., at 522 (the total exhaustion requirement was not intended to "unreasonably impair the prisoner's right to relief"). In such a case, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief. See id., at 520 (plurality opinion) ("[A petitioner] can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims").
[40] The Court of Appeals erred to the extent it concluded that stay and abeyance is always impermissible. We therefore vacate the judgment of the Court of Appeals and remand the case for that court to determine, consistent with this opinion, whether the District Court's grant of a stay in this case constituted an abuse of discretion.
[41] It is so ordered.
[42] Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring.
[43] While I join the Court's opinion, I do so on the understanding that its reference to "good cause" for failing to exhaust state remedies more promptly, ante, at 7, is not intended to impose the sort of strict and inflexible requirement that would " `trap the unwary pro se prisoner.' " Rose v. Lundy, 455 U. S. 509, 520 (1982); see also Slack v. McDaniel, 529 U. S. 473, 487 (2000).
[44] Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring in part and concurring in the judgment.
[45] I join the Court's opinion with one reservation, not doctrinal but practical. Instead of conditioning stay-and-abeyance on "good cause" for delay, ante, at 7, I would simply hold the order unavailable on a demonstration of "intentionally dilatory litigation tactics," ante, at 8. The trickiness of some exhaustion determinations promises to infect issues of good cause when a court finds a failure to exhaust; pro se petitioners (as most habeas petitioners are) do not come well trained to address such matters. I fear that threshold enquiries into good cause will give the district courts too much trouble to be worth the time; far better to wait for the alarm to sound when there is some indication that a petitioner is gaming the system.
[1] SUPREME COURT OF THE UNITED STATES
[2] No. 03-9046
[3] 125 S.Ct. 1528, 161 L.Ed.2d 440, 73 USLW 4263, 2005 Daily Journal D.A.R. 3696, 5 Cal. Daily Op. Serv. 2714, 05 Cal. Daily Op. Serv. 2714
[4] March 30, 2005
[5] CHARLES RUSSELL RHINES, PETITIONER
v.
DOUGLAS WEBER, WARDEN
[6] SYLLABUS BY THE COURT
[7] OCTOBER TERM, 2004
[8] Argued January 12, 2005
[9] After petitioner Rhines' state conviction for first-degree murder and burglary became final and his state habeas petition was denied, he filed a federal habeas petition. Because the 1-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was tolled while his state petition was pending, see 28 U. S. C. §2244(d)(2), he had more than 11 months before the limitations period expired. However, by the time the District Court ruled that eight of his claims had not been exhausted in state court, the limitations period had run. If the court had dismissed his "mixed" petition, Rhines would have been unable to refile after exhausting his claims, so the court decided to hold his federal petition in abeyance while he presented his unexhausted claims in state court, provided that he commenced the state proceedings within 60 days and returned to the District Court within 60 days of completing the exhaustion. The Eighth Circuit, which had previously held that a district court has no authority to hold mixed petitions in abeyance absent truly exceptional circumstances, vacated the stay and remanded the case for the District Court to determine whether Rhines could proceed by deleting unexhausted claims.
[10] Held: A district court has discretion to stay a mixed petition to allow a petitioner to present his unexhausted claims to the state court in the first instance and then to return to federal court for review of his perfected petition. Pp. 3-8.
[11] (a) Fourteen years before Congress enacted AEDPA, this Court held that federal district courts may not adjudicate mixed petitions but must give state courts the first opportunity to decide a petitioner's claims; imposed a "total exhaustion" requirement; and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court. Rose v. Lundy, 455 U. S. 509, 518-519. At the time, there was no statute of limitations on federal habeas petitions. But that changed with AEDPA, which preserved Lundy's total exhaustion requirement while imposing a 1-year limitations period, which is tolled during the pendency of a state, but not a federal, habeas petition. As a result, petitioners such as Rhines run the risk of forever losing their opportunity for federal review of their unexhausted claims. Even a petitioner who files early cannot control when a district court will resolve the exhaustion question. The gravity and difficulty of this problem has led some district courts to adopt the "stay-and-abeyance" procedure at issue. Pp. 3-5.
[12] (b) AEDPA does not deprive district courts of the authority to issue stays that are a proper exercise of their discretion, but it does circumscribe that discretion. Any solution to this problem therefore must be compatible with AEDPA's purposes. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality of state court judgments by allowing a petitioner to delay the resolution of the federal proceedings, and it undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court before filing his federal petition. Thus, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims. Even if good cause existed, the district court would abuse its discretion if it granted a stay when the unexhausted claims are plainly meritless. Where stay and abeyance is appropriate, the district court's discretion is still limited by AEDPA's timeliness concerns. If a district court does not place reasonable time limits on a petitioner's trip to state court and back, petitioners, especially capital petitioners, could frustrate AEDPA's finality goal by dragging out indefinitely their federal habeas review. And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant a stay at all. On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that he engaged in intentionally dilatory litigation tactics. Such a petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if the court determines that stay and abeyance is inappropriate, it should allow the petitioner to delete the unexhausted claims and proceed with the exhausted ones if dismissing the entire petition would unreasonably impair the petitioner's right to obtain federal relief. Pp. 5-8.
[13] 346 F. 3d 799, vacated and remanded.
[14] O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg and Breyer, JJ., joined.
[15] On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Court Below: 346 F. 3d 799
[16] Roberto A. Lange, by appointment of the Court, 543 U. S. ___, argued the cause and filed briefs for petitioner.
[17] Lawrence E. Long, Attorney General of South Dakota, argued the cause for respondent. With him on the brief was Craig M. Eichstadt, Deputy Attorney General.
[18] A brief of amicus curiae urging reversal was filed for the National Association of Criminal Defense Lawyers by Pamela Harris and David M. Porter.
[19] A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. de Nicola and Paul M. Roadarmel, Jr., Deputy Attorneys General, and Christopher L. Morano, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Kelly A. Ayotte of New Hampshire, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Gerald J. Pappert of Pennsylvania, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming.
[20] The opinion of the court was delivered by: Justice O'Connor
[21] 544 U. S. ____ (2005)
[22] We confront here the problem of a "mixed" petition for habeas corpus relief in which a state prisoner presents a federal court with a single petition containing some claims that have been exhausted in the state courts and some that have not. More precisely, we consider whether a federal district court has discretion to stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.
[23] I.
[24] Petitioner Charles Russell Rhines was convicted in South Dakota state court of first-degree murder and third-degree burglary and sentenced to death. His conviction became final on December 2, 1996, when we denied his initial petition for certiorari. Rhines v. South Dakota, 519 U. S. 1013. On December 5, 1996, Rhines filed a petition for state habeas corpus. App. 32. The state court denied his petition, and the Supreme Court of South Dakota affirmed on February 9, 2000, Rhines v. Weber, 2002 SD 19, 608 N. W. 2d 303. Rhines filed his pro se petition for federal habeas corpus pursuant to 28 U. S. C. §2254 in the United States District Court for the District of South Dakota on February 22, 2000. App. 3. Because the 1-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was tolled while Rhines' state habeas corpus petition was pending, see 28 U. S. C. §2244(d)(2), he still had more than 11 months left before the expiration of the limitations period.
[25] With the assistance of court-appointed counsel, Rhines filed an amended petition for writ of habeas corpus and statement of exhaustion on November 20, 2000, asserting 35 claims of constitutional defects in his conviction and sentence. App. 39-60. The State challenged 12 of those claims as unexhausted. Id., at 72-79. On July 3, 2002, approximately 18 months after Rhines had filed his amended federal habeas corpus petition, the District Court held that 8 of the 35 claims had not been exhausted. At this time, the AEDPA 1-year statute of limitations had run. See Duncan v. Walker, 533 U. S. 167, 181-182 (2001) (holding that the statute of limitations is not tolled during the pendancy of a federal petition). As a result, if the District Court had dismissed Rhines' mixed petition at that point, he would have been unable to refile in federal court after exhausting the unexhausted claims. Rhines therefore moved the District Court to hold his pending habeas petition in abeyance while he presented his unexhausted claims to the South Dakota courts. On July 3, 2002, the District Court granted the motion and issued a stay "conditioned upon petitioner commencing state court exhaustion proceedings within sixty days of this order and returning to this court within sixty days of completing such exhaustion." App. 136. In compliance with that order, Rhines filed his second state habeas corpus petition on August 22, 2003.
[26] The State appealed the District Court's stay of Rhines' mixed petition to the United States Court of Appeals for the Eighth Circuit. Relying on its decision in Akins v. Kenney, 341 F. 3d 681, 686 (2003) (holding that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances" (internal quotation marks omitted)), the Court of Appeals vacated the stay and remanded the case to the District Court to determine whether Rhines could proceed by deleting unexhausted claims from his petition. 346 F. 3d 799 (2003). We granted certiorari to resolve a split in the Circuits regarding the propriety of the District Court's "stay-and-abeyance" procedure. 542 U. S. ___ (2004). Compare, e.g., Crews v. Horn, 360 F. 3d 146, 152 (CA3 2004); and Zarvela v. Artuz, 254 F. 3d 374, 381 (CA2 2001), with 346 F. 3d 799 (2003) (case below).
[27] II.
[28] Fourteen years before Congress enacted AEDPA, we held in Rose v. Lundy, 455 U. S. 509 (1982), that federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims. We reasoned that the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims. Id., at 518-519. We noted that "[b]ecause `it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' federal courts apply the doctrine of comity." Id., at 518 (quoting Darr v. Burford, 339 U. S. 200, 204 (1950)). That doctrine " `teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' " 455 U. S., at 518.
[29] Accordingly, we imposed a requirement of "total exhaustion" and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court to present the unexhausted claims to that court in the first instance. Id., at 522. When we decided Lundy, there was no statute of limitations on the filing of federal habeas corpus petitions. As a result, petitioners who returned to state court to exhaust their previously unexhausted claims could come back to federal court to present their perfected petitions with relative ease. See Slack v. McDaniel, 529 U. S. 473, 486 (2000) (dismissal without prejudice under Lundy "contemplated that the prisoner could return to federal court after the requisite exhaustion").
[30] The enactment of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions. AEDPA preserved Lundy's total exhaustion requirement, see 28 U. S. C. §2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State"), but it also imposed a 1-year statute of limitations on the filing of federal petitions, §2244(d). Although the limitations period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review," §2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations, Duncan, supra, at 181-182.
[31] As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with "mixed" petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court. Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner's chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim. The problem is not limited to petitioners who file close to the AEDPA deadline. Even a petitioner who files early will have no way of controlling when the district court will resolve the question of exhaustion. Thus, whether a petitioner ever receives federal review of his claims may turn on which district court happens to hear his case.
[32] We recognize the gravity of this problem and the difficulty it has posed for petitioners and federal district courts alike. In an attempt to solve the problem, some district courts have adopted a version of the "stay-and-abeyance" procedure employed by the District Court below. Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.
[33] District courts do ordinarily have authority to issue stays, see Landis v. North American Co., 299 U. S. 248, 254 (1936), where such a stay would be a proper exercise of discretion, see Clinton v. Jones, 520 U. S. 681, 706 (1997). AEDPA does not deprive district courts of that authority, cf. 28 U. S. C. §2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State" (emphasis added)), but it does circumscribe their discretion. Any solution to this problem must therefore be compatible with AEDPA's purposes.
[34] One of the statute's purposes is to "reduce delays in the execution of state and federal criminal sentences, particularly in capital cases." Woodford v. Garceau, 538 U. S. 202, 206 (2003). See also Duncan, 533 U. S., at 179. AEDPA's 1-year limitations period "quite plainly serves the well-recognized interest in the finality of state court judgments." Ibid. It "reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Ibid.
[35] Moreover, Congress enacted AEDPA against the backdrop of Lundy's total exhaustion requirement. The tolling provision in §2244(d)(2) "balances the interests served by the exhaustion requirement and the limitation period," "by protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued." Duncan, supra, at 179. AEDPA thus encourages petitioners to seek relief from state courts in the first instance by tolling the 1-year limitations period while a "properly filed application for State post-conviction or other collateral review" is pending. 28 U. S. C. §2244(d)(2). This scheme reinforces the importance of Lundy's "simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." 455 U. S., at 520.
[36] Stay and abeyance, if employed too frequently, has the potential to undermine these twin purposes. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition. Cf. Duncan, supra, at 180 ("[D]iminution of statutory incentives to proceed first in state court would . . . increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce").
[37] For these reasons, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U. S. C. §2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
[38] Even where stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA. A mixed petition should not be stayed indefinitely. Though, generally, a prisoner's "principal interest . . . is in obtaining speedy federal relief on his claims," Lundy, supra, at 520 (plurality opinion), not all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits, petitioners could frustrate AEDPA's goal of finality by dragging out indefinitely their federal habeas review. Thus, district courts should place reasonable time limits on a petitioner's trip to state court and back. See, e.g., Zarvela, 254 F. 3d, at 381 ("[District courts] should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed"). And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all. See id., at 380-381.
[39] On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. See Lundy, 455 U. S., at 522 (the total exhaustion requirement was not intended to "unreasonably impair the prisoner's right to relief"). In such a case, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief. See id., at 520 (plurality opinion) ("[A petitioner] can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims").
[40] The Court of Appeals erred to the extent it concluded that stay and abeyance is always impermissible. We therefore vacate the judgment of the Court of Appeals and remand the case for that court to determine, consistent with this opinion, whether the District Court's grant of a stay in this case constituted an abuse of discretion.
[41] It is so ordered.
[42] Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring.
[43] While I join the Court's opinion, I do so on the understanding that its reference to "good cause" for failing to exhaust state remedies more promptly, ante, at 7, is not intended to impose the sort of strict and inflexible requirement that would " `trap the unwary pro se prisoner.' " Rose v. Lundy, 455 U. S. 509, 520 (1982); see also Slack v. McDaniel, 529 U. S. 473, 487 (2000).
[44] Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring in part and concurring in the judgment.
[45] I join the Court's opinion with one reservation, not doctrinal but practical. Instead of conditioning stay-and-abeyance on "good cause" for delay, ante, at 7, I would simply hold the order unavailable on a demonstration of "intentionally dilatory litigation tactics," ante, at 8. The trickiness of some exhaustion determinations promises to infect issues of good cause when a court finds a failure to exhaust; pro se petitioners (as most habeas petitioners are) do not come well trained to address such matters. I fear that threshold enquiries into good cause will give the district courts too much trouble to be worth the time; far better to wait for the alarm to sound when there is some indication that a petitioner is gaming the system.