WILLIAM EMERSON TOWNSEND, Petitioner-Appellant, v. MICHAEL KNOWLES, Warden, Ione State Prison, Respondent-Appellee.

No. 07-15712

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

562 F.3d 1200; 2009 U.S. App. LEXIS 8239

March 9, 2009, Argued and Submitted, San Francisco, California
April 21, 2009, Filed

SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Townsend v. Knowles, 2009 U.S. LEXIS 6193 (U.S., Oct. 5, 2009)

OPINION


[*1202] EDMUNDS, District Judge:

William Emerson Townsend, a California state prisoner, appeals the district court's order denying his 28 U.S.C. § 2254 [*1203] habeas corpus petition, which challenged his conviction for second degree murder. In this appeal, we are asked to decide whether Townsend's petition is untimely based on an intervening change in the law, see Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). We conclude that, although he is ineligible for statutory tolling, Townsend is entitled to equitable tolling. See Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008), [**2] cert. denied sub nom. Brunson v. Harris, 129 S. Ct. 397, 172 L. Ed. 2d 323 (2008). Because equitable tolling renders Townsend's petition timely filed, we consider the merits of his appeal. We affirm the district court's denial of Townsend's habeas petition. The district court correctly concluded that the California Superior Court's rejection of Townsend's due process and ineffective assistance claims was not contrary to or an unreasonable application of clearly established federal law.

I

A. State Court Proceedings

On June 10, 1997, a complaint was filed in Sacramento County Superior Court charging Townsend with one count of murder and alleging an enhancement that he personally used a dangerous weapon, i.e., a knife, during the charged crime of murder. A jury acquitted Townsend of first degree murder but found him guilty of the lesser included crime of second degree murder. Cal. Penal Code § 187. The jury also found true the allegation that Townsend personally used a knife during the murder. Cal. Penal Code § 12022(b).

On September 4, 1998, Townsend was sentenced to 15 years to life for his conviction of second degree murder and was further ordered to serve a one-year consecutive sentence for his personal [**3] use of a knife within the meaning of California Penal Code § 12022(b). That same day, Townsend filed a notice of appeal.

On June 30, 2000, the California Court of Appeal affirmed Townsend's judgment and sentence. Townsend filed a timely petition for review in the California Supreme Court. That petition was denied on October 18, 2000.

On November 20, 2001, Townsend filed a state habeas petition in the Sacramento Superior Court raising for the first time the claims he later raised in his federal habeas petition.

On December 17, 2001, the Superior Court issued a reasoned opinion denying Townsend's habeas petition as both untimely under In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (Cal. 1993), and without merit.

On February 7, 2002, Townsend filed a state habeas petition in the California Court of Appeal reiterating the claims asserted in his Superior Court petition. 1 The California Court of Appeal denied Townsend's petition without explanation on February 21, 2002.

FOOTNOTES

1 Under California law, "a state prisoner may seek review of an adverse lower court decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a 'reasonable time.'" Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008) [**4] (internal quotations and citations omitted).


On June 13, 2002, Townsend filed a state habeas petition in the California Supreme Court reiterating the same claims as those asserted in his Superior Court petition. The California Supreme Court issued a silent denial of Townsend's state habeas petition on January 22, 2003.

B. Federal Court Proceedings

On March 13, 2003, Townsend filed his federal habeas petition in the district [*1204] court, and it was referred to a magistrate judge. The government filed an answer on July 8, 2003 that did not assert, as an affirmative defense, that the one year statute of limitations period under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1), had expired.

On April 21, 2006, the magistrate judge filed findings and recommendations, finding that Townsend's claims were not procedurally defaulted but recommending that Townsend's petition be denied on the merits. Townsend filed objections on May 7, 2006. The district court, after a de novo review, adopted the findings and recommendations in full, and denied Townsend's federal habeas petition on June 5, 2006.

Townsend filed a timely notice of appeal, and this court granted Townsend's [**5] certificate of appealability with respect to the following three issues: (1) whether the trial court erred by instructing the jury with regard to the felony murder rule; (2) whether trial counsel provided ineffective assistance by failing to challenge the instruction; and (3) whether these claims are procedurally barred. 2

FOOTNOTES

2 We decline to address the uncertified issue in this case because Townsend has not satisfied his burden of showing "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right . . ." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).


II

A. Timeliness of Townsend's Federal Habeas Petition

Before addressing the merits of Townsend's petition, we must decide whether that petition is untimely based on an intervening change in the law, see Pace v. DiGuglielmo, 544 U.S. at 413-14. 3 "The facts underlying this claim for tolling of AEDPA's limitations period are undisputed. We review de novo whether the statute of limitations should be tolled." Harris, 515 F.3d at 1054.

FOOTNOTES

3 Townsend argues that the government waived any challenge to the timeliness of his petition by failing to raise the statute of limitations as an affirmative [**6] defense before the district court. Although this court will not generally address issues raised for the first time on appeal, where as here there has been an intervening change in law that we need only apply to an adequately developed record, we may consider the issue. See In re Cellular 101, Inc., 539 F.3d 1150, 1156 (9th Cir. 2008). Because the Supreme Court's decision in Pace changed the controlling law regarding tolling of the statute of limitations for habeas corpus petitions and the record is adequately developed in this regard, we choose to address the timeliness of Townsend's petition.


Townsend's conviction became final on January 16, 2001, and absent tolling, the last day for Townsend to file a federal habeas petition was January 16, 2002. Townsend's judgment of conviction became "final" within the meaning of 28 U.S.C. § 2244(d)(1)(A) when the time for filing a petition for writ of certiorari in the United States Supreme Court expired. "A judgment becomes final for purposes of 28 U.S.C. § 2244(d) when the period for filing a petition for certiorari in the U.S. Supreme Court expires. Petitions for certiorari must be filed in the U.S. Supreme Court within 90 days after the supreme [**7] court of the state in which the prisoner was convicted issues its opinion or denies review." Harris, 515 F.3d at 1053 n.1 (internal citations omitted). As shown below, Townsend is not eligible for statutory tolling but is entitled to equitable tolling.

1. Statutory Tolling

AEDPA imposes a one-year statute of limitations period for federal habeas petitions and also addresses tolling of that [*1205] limitations period. 28 U.S.C. § 2244(d). Section 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." Id. at 2244(d)(2) (emphasis added). The United States Supreme Court has interpreted the statutory term "properly filed." In Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000), it determined that "an application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." It was subsequently determined, in Pace, 544 U.S. at 417, that a state's "time limits, no matter their form, are 'filing' conditions." Accordingly, if "the state court [**8] rejected" a state habeas petition "as untimely, it was not 'properly filed,' and [the petitioner] is not entitled to statutory tolling under § 2244(d)(2)." Id.; accord Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (observing that "[t]he fact that California provides exceptions to its timely filing requirement" and "the fact that the superior court also denied [the petitioner]'s petition on the merits" do not alter the conclusion that an untimely state filing is not properly filed within the meaning of § 2244(d)(2)), opin. amended on other grounds, 439 F.3d 993 (9th Cir. 2006).

Townsend is not entitled to statutory tolling. Because the California Court of Appeal and Supreme Court denied his state habeas petitions without any reasoning, we look to the Sacramento Superior Court's decision denying Townsend's habeas petition as the last reasoned state court decision. Martinez v. Garcia, 379 F.3d 1034, 1037 n.2 (9th Cir. 2004). The California Superior Court held that Townsend's petition was untimely; and, therefore, the petition was not "properly filed" as required by 28 U.S.C. § 2244(d)(2). See Pace, 544 U.S. at 413-14, 417; Bonner, 425 F.3d at 1148-49. Absent equitable tolling, [**9] Townsend's habeas petition is time-barred because AEDPA's one-year statute of limitations period expired on January 16, 2002, and he did not file his federal habeas petition until March 13, 2003.

2. Equitable Tolling

Although he is ineligible for statutory tolling, Townsend is entitled to equitable tolling. The threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (clarifying that this court's standard for equitable tolling is consistent with the standard discussed in Pace). In Harris, this court observed that "[u]ntil the Supreme Court decided Pace on April 27, 2005, our circuit law was different. Our precedent stated that an untimely . . . State post-conviction petition was 'properly filed' for purposes of § 2244(d) and tolled the statute of limitations while the petition was pending in the state courts." Harris, 515 F.3d at 1053 (citing Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001)). Prior to Pace, this court had determined that § 2244(d)'s statute of limitations [**10] was tolled for " 'all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.'" Harris, 515 F.3d at 1053 n.3 (quoting Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)). After Pace, an untimely filed state habeas petition no longer tolls § 2244(d)'s one-year statute of limitations. The petitioner in Harris, similar to [*1206] Townsend here, "argued that he was entitled to equitable tolling of the statute of limitations because he relied on controlling Ninth Circuit precedent in waiting to file his federal habeas petition." Harris, 515 F.3d at 1054. This court found Harris' argument persuasive. It concluded that his "circumstances justify equitable tolling" because he "diligently pursued his rights" in state court and "ensur[ed] that enough time would remain to file a federal habeas petition under the then-existing Dictado rule." Id. at 1055-56. Through no fault of his own, "Harris' petition became time-barred the moment that Pace was decided." Id. at 1056. "The Supreme Court's over-ruling of the Dictado rule made it impossible for Harris to file a timely [**11] petition." Id. This court concluded that "[t]hese are precisely the circumstances in which equitable principles justify tolling of the statute of limitations." Id. The same holds true here.

Townsend asserts that he relied on controlling Ninth Circuit precedent in waiting to file his federal habeas petition. Townsend also diligently pursued his rights in his post-conviction habeas petition in the state courts and ensured that he had enough time remaining to file a federal habeas petition under the then-existing Dictado rule. Under that rule, 308 days had expired between January 17, 2001, when AEDPA's one-year statute of limitations period began to run, and November 20, 2001, when Townsend filed his first state habeas petition. The entire period of time between November 20, 2001 and the California Supreme Court's summary denial of his state habeas petition on January 22, 2003 would have been tolled under the then-existing Dictado rule. An additional 50 days elapsed between that January 22, 2003 date and the day he filed his federal habeas petition on March 13, 2003. Because less than 365 days had expired, Townsend's federal habeas petition would have been considered timely pre-Pace. Accordingly, [**12] we conclude that equitable principles dictate that AEDPA's one-year statute of limitations be tolled here.

We now consider whether Townsend's claims were procedurally defaulted. This court reviews de novo the denial of a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Harris, 515 F.3d at 1054.

B. Procedural Default

The Sacramento County Superior Court denied Townsend's first post-conviction habeas petition as untimely. The government argues, therefore, that Townsend's claims were procedurally defaulted. The district court concluded that the government failed to meet its burden of proving that California's untimeliness rule is an independent and adequate state procedural ground for denying habeas relief. We affirm the district court's decision.

If the state court's denial of Townsend's state habeas petition for untimeliness "rest[ed] on a state law ground that is independent of the federal question and adequate to support the judgment,' " then Townsend "is procedurally barred from pursuing his claims in federal court." Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)). To constitute a procedural bar, the state's [**13] rule had to be independent and adequate at the time Townsend purportedly failed to comply with it. See Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997). We consider whether the California timeliness bar was independent and adequate in 2001, when the state trial court found Townsend's petition to be untimely. This court has recognized that California's timeliness rule became independent of federal law in 1998, [*1207] Bennett, 322 F.3d at 582-83, so we need only consider whether the California timeliness rule was adequate as of 2001.

To be adequate, a state procedural rule must be "well-established and consistently applied." Id. at 583. A procedural rule can be neither well-established nor consistently applied if it is not "clear and certain." King v. LaMarque, 464 F.3d 963, 965 (9th Cir. 2006). State procedural rules allowing the exercise of judicial discretion are not necessarily uncertain, but the exercise of any such discretion must be according to standards that are not vague or ambiguous. Bennett, 322 F.3d at 583; see King, 464 F.3d at 966 ("[S]tate [**14] procedural rules with overly vague standards do not provide petitioners with sufficient notice of how they may avoid violating the rules.").

The government concedes that under the burden-shifting analysis articulated in Bennett, it bears the burden of proving the adequacy of the California rule. See 322 F.3d at 585-86. To do so, the government should present state authority regarding the rule. See id. at 586. Because California's timeliness rule differs for capital and non-capital cases, capital cases should only be considered in non-capital cases insofar as they discuss the aspects of the rule that apply to all state habeas petitions. See id. at 581-83 (considering capital cases to determine whether the state bar was independent of federal law but noting that reliance on a capital case was misplaced in deciding the adequacy of the timeliness rule for a non-capital case). Also, state authority from after the time of the purported default is generally irrelevant in determining whether the rule was adequate at the time in question. Lambright v. Stewart, 241 F.3d 1201, 1203 n.2 (9th Cir. 2001). Thus, to meet its burden, the government in this case should have presented state authority [**15] showing that the timeliness rule was clear and certain, well-established, and consistently applied in non-capital cases as of 2001.

To show that the California timeliness rule was clear at the time of Townsend's purported default, the government offers this court's definition of the state rule and argues that the rule is easily defined. We disagree. In California, a habeas petition is untimely if it is filed after an unjustified, substantial delay. In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 855 P.2d 729, 750, 762-63 (Cal. 1993); see also King, 464 F.3d at 966; Bennett, 322 F.3d at 581. This rule is easily stated, but "substantial delay" has not yet been defined. For capital cases, California has offered some guidance. The California Supreme Court adopted standards for habeas petitions in capital cases in 1986, those standards created "a presumption of timeliness if a [habeas] petition by a capital defendant is filed within 90 days of the final due date for the filing of an appellant's reply brief [on direct appeal] . . . ." Clark, 855 P.2d at 751. At least for capital cases, it seems that anytime within 90 days 4 after the reply brief due date is not "substantial delay."

FOOTNOTES

4 Since deciding Clark, the California Supreme [**16] Court has extended the presumptively timely period for habeas petitions in capital cases to 180 days after the reply brief due date or 36 months after appointment of appellate counsel, whichever is later. See Cal. Supreme Ct., Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, std. 1-1.1 (Jan. 1, 2008), available at http://www.courtinfo.ca.gov/ courts/supreme/aa02f.pdf.


As the government admits, this presumption of timeliness does not apply to non-capital cases. See id. at 751. In King, this court noted that in Clark the California Supreme Court provided no [*1208] standards for determining what constitutes "substantial delay" in a non-capital case, 464 F.3d at 966, and the government here offers no state authority setting forth such standards. The government attempts to prove the certainty of the rule by noting how frequently it is applied, to capital and non-capital cases alike. Frequent application of a vague standard in dispositions that offer no guidance, however, does not serve to clarify that standard. See King, 464 F.3d at 966 ("The rule's ambiguity is not clarified by the California Supreme Court's application of the timeliness bar, in part because the [**17] court usually rejects cases without explanation, only citing Clark and Robbins, as it did here."). The government also urges us to consider the clarity of the exceptions to the general rule, for example, when "substantial delay" is justified. No matter how clear the exceptions may be, they do not lend clarity to the underlying rule. See id.

In a unique argument, the government contends that California's timeliness bar is certain because it is similar to AEDPA's statute of limitations. Both timeliness bars, it argues, begin measuring the passage of time when a petitioner knew or should have known of the factual bases for his claim. Compare In re Robbins, 18 Cal. 4th 770, 77 Cal. Rptr. 2d 153, 959 P.2d 311, 317 (Cal. 1998) ("Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.") with 28 U.S.C. § 2244(d)(1) ("The limitation period shall run from the latest of . . . the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."). The two timeliness bars may share a type of triggering event, but the [**18] government ignores the major distinction: AEDPA requires filing within one year of that event and California requires a petitioner to file without "substantial delay" from that event. Clarity of the triggering event does not make clear what amount of time may pass before a filing is untimely.

Because the government offers no evidence that California operated under clear standards for determining what constituted "substantial delay" in 2001, it failed to meet its burden of proving that California's timeliness bar was sufficiently clear and certain to be an adequate state bar. The district court correctly concluded that the government failed to meet its burden and that Townsend's claims are not procedurally defaulted. We, therefore, address the merits of Townsend's claims.

C. Townsend's Due Process Rights

Townsend claims that he is entitled to habeas relief because the California trial court violated his Fourteenth Amendment due process rights when it instructed the jury on the crime of felony-murder, thus permitting the jury to convict him of second degree murder absent proof of malice aforethought. See Carella v. California, 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989) (observing that "[t]he Due Process Clause of the Fourteenth Amendment [**19] denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense."). We affirm the denial of Townsend's habeas claim based upon a violation of his due process rights.

Federal habeas corpus relief is available to a state prisoner when it is shown that "a state court's adjudication of his constitutional claim was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Middleton v. McNeil, 541 U.S. 433, 436, [*1209] 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004) (quoting 28 U.S.C. § 2254(d)(1)). Here, Townsend challenges "the state court's application of governing federal law," and thus he is required to show that this application is "not only erroneous, but objectively unreasonable." Id. (internal quotation marks and citations omitted).

Due process requires that jury instructions in criminal trials give effect to the prosecutor's burden of proving every element of the crime charged beyond a reasonable doubt. Id. at 437. "Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Id. Federal [**20] habeas relief is available for jury instruction errors that "so infected the entire trial that the resulting conviction violates due process," thus rendering the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). The challenged jury instructions "may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Id. (internal quotation marks and citation omitted). "If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Middleton, 541 U.S. at 437. The law presumes that the jury follows the instructions given. Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987).

Townsend was charged with murder, and the state also alleged with specificity that he personally used a deadly and dangerous weapon, namely a knife, during the commission of the charged murder. Townsend's defense was that he acted at most in the heat of passion or at least in self-defense.

Townsend claims that, after the trial court instructed his jury on the elements of first and second degree murder and voluntary [**21] and involuntary manslaughter, it erroneously instructed the jury on the theory of felony murder. Townsend argues that this erroneous instruction, when combined with instructions given on the enhancement allegation that Townsend personally used a deadly or dangerous weapon, rose to the level of a due process violation because it permitted the jury to convict him of felony murder without finding malice aforethought. We reject Townsend's arguments.

Townsend's jury was instructed on the elements of first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. These instructions expressly informed the jury that the crime of murder is the unlawful killing of a human being with malice aforethought whereas the crime of manslaughter is the unlawful killing of a human being without malice aforethought. The jury was given additional instructions based on California Criminal Jury Instructions 8.50 and 8.51 designed to help them to distinguish between the crimes of murder and manslaughter:

The distinction between murder and manslaughter is that murder requires malice while manslaughter does not.

* * *

To establish that a killing is murder and not manslaughter, the [**22] burden is on the People to prove beyond a reasonable doubt each of the elements of murder, and that the act which caused the death was not done in the heat of passion, or upon a sudden quarrel or in the actual, even though unreasonable belief, in the necessity to defend against imminent peril to life or great bodily injury.

* * *

[*1210] If a person causes another's death, while committing a felony which is dangerous to human life, the crime is murder. If a person causes another's death while committing a misdemeanor or infraction which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter.

There are many acts which are lawful but nevertheless endanger human life. If a person causes another's death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involved, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder.

(Emphasis added).

The jury was also instructed on the enhancement allegation. If the jury found Townsend guilty of the charged crime of murder [**23] or the lesser included crime of manslaughter, they were instructed to then determine whether the government had proven beyond a reasonable doubt that Townsend had personally used a deadly or dangerous weapon during the commission of the crime of murder or manslaughter.

Townsend improperly plucks a sentence that references both "felony" and "murder" from a jury instruction illustrating the difference between murder and manslaughter, combines it with the enhanced allegation instruction, and argues that these instructions permitted the jury to convict him of felony murder absent a finding of malice aforethought because an underlying felony--assault with a deadly weapon--was an integral part of the murder and merged with the charged crime of murder. See People v. Hansen, 9 Cal. 4th 300, 36 Cal. Rptr. 2d 609, 885 P.2d 1022, 1028 (Cal. 1994), overruled by People v. Sarun Chun, 203 P.3d 425, 45 Cal. 4th 1172, 91 Cal. Rptr. 3d 106, 2009 WL 805180 (Cal. 2009). 5 Townsend's argument ignores essential facts. He was not charged with and his jury was not instructed on felony-murder. See Cal. Crim. J. Instr. 8.32. He was not charged with and his jury was not instructed on any felony other than murder and manslaughter. He was not charged with the felony of assault with a deadly [**24] weapon, and his jury was not instructed that an assault with a deadly weapon is a felony that is inherently dangerous to human life. Townsend's jury, therefore, had no basis for imputing malice based upon the uncharged felony of assault with a deadly weapon.

FOOTNOTES

5 In Sarun-Chun, the California Supreme Court overruled Hansen, applying a new merger analysis for felony-murder, but under the new analysis we believe assault with a deadly weapon would continue to merge with murder. Sarun-Chun, 45 Cal. 4th 1172, 2009 WL 805180 at *17-18. Given our conclusion, the change is irrelevant.


Townsend was found guilty of second degree murder. 6 The second degree murder instructions required the jury to find that Townsend acted with either express or implied malice aforethought. He was not acquitted of murder and found guilty of the lesser included charge of manslaughter--a charge that did not require proof of malice aforethought. Thus, contrary to Townsend's arguments here, the jury must have found that he acted with malice.

FOOTNOTES

6 The jury also found that the government had proven beyond a reasonable doubt that Townsend had personally used a deadly or dangerous weapon during the commission of the crime of murder.


Townsend's reliance [**25] on Suniga v. Bunnell, 998 F.2d 664, 666 (9th Cir. 1993), is misplaced. Unlike the tangential reference [*1211] at issue here, in Suniga, the trial court did instruct the jury on the separate theory of felony-murder. Unlike here, the jury in Suniga was also instructed that an assault with a deadly weapon is a felony that is inherently dangerous to human life. Id. at 666, 668-70. The Suniga court found a due process violation because, by virtue of being instructed on felony murder as well as the felony of assault with a deadly weapon, the jury could have convicted Suniga of murder by inappropriately relying on his commission of the underlying felony and without considering the element of malice. Id. at 669-70. Because Townsend's jury was not provided with the instructions found objectionable in Suniga, the reasoning and result in that decision do not apply here.

Considering the challenged instruction in the context of all the instructions provided, we conclude that its tangential reference to "felony" and "murder" did not so infect the trial "that the resulting conviction violates due process." Estelle, 502 U.S. at 72. A review of Townsend's jury instructions has not shown that "there is a reasonable [**26] likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Id. (internal quotation marks and citation omitted).

Because the challenged jury instruction did not so infect the entire trial that Townsend's resulting conviction violated due process, we conclude that the district court did not err when it denied Townsend's claim for habeas relief. The district court correctly concluded that the California Superior Court's rejection of Townsend's due process claim was not contrary to or an unreasonable application of clearly established federal law.

D. Ineffective Assistance of Counsel

Townsend claims that his trial counsel rendered ineffective assistance because he failed to object to the jury instruction that made the alleged reference to felony murder. The Sixth Amendment guarantees the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on this claim, Townsend must show that his counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by counsel's conduct. Id. at 687. Because Townsend suffered no prejudice as a result of his trial counsel's inaction, we conclude [**27] that the district court did not err when it denied Townsend's claim for habeas relief.

Prejudice requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Townsend cannot demonstrate prejudice for the same reasons he cannot show error in his direct challenge to the jury instruction that allegedly references felony murder. As discussed above, it was not reasonably likely that the jury based Townsend's second degree murder conviction upon the challenged instruction because the jury was not instructed on any underlying felony, was not instructed that an assault with a deadly weapon was a felony that was inherently dangerous to human life, and was not instructed on the elements of felony murder. When considered in the context of all the instructions provided to Townsend's jury, even if Townsend's counsel had objected and excluded the challenged instruction, "the probability that the result would have been different is far from reasonable." Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). [**28] Because he has not shown that his counsel's silence on this issue prejudiced [*1212] him, Townsend's claim of ineffective assistance fails.

III

We AFFIRM the district court's decision denying Townsend's 28 U.S.C. § 2244 habeas petition. The district court correctly concluded that the California Superior Court's rejection of Townsend's jury instruction and ineffective assistance claims was not contrary to or an unreasonable application of clearly established federal law.

AFFIRMED.

JOHN A. PACE, Petitioner v. DAVID DiGUGLIELMO, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT GRATERFORD, et al.

No. 03-9627

SUPREME COURT OF THE UNITED STATES

544 U.S. 408; 125 S. Ct. 1807; 161 L. Ed. 2d 669; 2005 U.S. LEXIS 3705; 73 U.S.L.W. 4304; 18 Fla. L. Weekly Fed. S 250

February 28, 2005, Argued
April 27, 2005, Decided

SYLLABUS


After the Pennsylvania Superior Court found petitioner's state postconviction petition untimely under the Pennsylvania Post Conviction Relief Act [***673] (PCRA) and the State Supreme Court denied review, petitioner sought federal habeas. The District Court refused to dismiss the petition under the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) statute of limitations, finding that petitioner was entitled to both statutory and equitable tolling while his PCRA petition was pending even though that petition was untimely under state law. Reversing, the Third Circuit held, with regard to statutory tolling, that an untimely PCRA petition is not "a properly filed application for State post-conviction or other collateral review" that tolls AEDPA's limitations period under 28 U.S.C. § 2244(d)(2) [28 USCS § 2244(d)(2)], and that there were no extraordinary circumstances justifying equitable tolling.

Held:

Because petitioner filed his federal habeas petition beyond the deadline and is not entitled to statutory or equitable tolling for any of that time period, his federal petition is barred by AEDPA's statute of limitations.

(a) Petitioner is not entitled to statutory tolling. When this Court held in Artuz v. Bennett, 531 U.S. 4, 8, 11, 148 L. Ed. 2d 213, 121 S. Ct. 361, that time limits on postconviction petitions are "condition[s] to filing," such that an untimely petition would not be deemed "properly filed," it reserved the question "whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed," id., at 8, n. 2, 148 L. Ed. 2d 213, 121 S. Ct. 361. There are no grounds for treating the two differently. Under the common understanding of "properly filed" that guided the Artuz Court, a petition filed after a time limit, which does not fit within any exceptions to that limit, is no more "properly filed" than a petition filed after a time limit permitting no exception. This commonsense reading is confirmed by the purpose of AEDPA's statute of limitations and is supported by Carey v. Saffold, 536 U.S. 214, 153 L. Ed. 2d 260, 122 S. Ct. 2134. Petitioner's counterarguments--that "condition[s] to filing" are merely those conditions necessary to get a clerk to accept the petition, not conditions requiring judicial consideration; that a condition that must be applied on a claim-by-claim basis cannot be a "condition to filing"; and that this Court's interpretation is unfair to petitioners who try in good faith to exhaust their state remedies--are rejected. Artuz does not require a different result. There is an obvious distinction between time limits, which go to the very initiation of a petition and a court' s ability to consider that petition, and the type of rule-of-decision procedural bars at issue in Artuz, which go to the ability to obtain relief.

(b) Because petitioner waited for years after his claims became available to file his PCRA petition and five more months once his PCRA proceedings became final before seeking relief in federal court, he has not established that he pursued his claims diligently. Thus, assuming equitable tolling applies here, he is not entitled to equitable tolling. See, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 112 L. Ed. 2d 435, 111 S. Ct. 453.

71 Fed. Appx. 127, affirmed.

COUNSEL: David Wycoff argued the cause for petitioner.

Ronald Eisenberg argued the cause for respondents.

JUDGES: Rehnquist, C. J., delivered the opinion of the Court, in which [***674] O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined post, p. 419.

OPINION BY: REHNQUIST

OPINION


[*410] [**1810] Chief Justice Rehnquist delivered the opinion of the Court.

[***LEdHR1] [1] The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1) [28 USCS § 2244(d)(1)]. That limitations period is tolled, however, while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." § 2244(d)(2). This case requires us to decide whether a state postconviction petition rejected by the state court as untimely nonetheless is "properly filed" within the meaning of § 2244(d)(2). We conclude that it is not, and hold that petitioner John Pace's federal petition is time barred.

In February 1986, petitioner pleaded guilty to second-degree murder and possession of an instrument of crime in a Pennsylvania state court. He was sentenced to life in prison without the possibility of parole. Petitioner did not file a motion to withdraw his guilty plea, and he did not file a direct appeal. In August 1986, he filed a petition under the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pa. Cons. Stat. § 9541 et seq (1988) (amended and renamed by Act No. 1988-47, §§ 3, 6, 1988 Pa. Laws pp 337-342). These proceedings concluded in September 1992, when the Pennsylvania Supreme Court denied petitioner's untimely request for discretionary review.

Over four years later, on November 27, 1996, petitioner filed another state postconviction petition, this time under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq (1998). The PCRA had replaced the PCHA in 1988 and was amended in 1995 to include, for the first time, a statute of limitations for state postconviction [*411] petitions, with three exceptions. 1 Although petitioner's PCRA petition was filed after the date upon which the new time limits became effective, the petition said nothing about timeliness.

FOOTNOTES

1 The amended statute states that "[a]ny" postconviction petition, "including a second or subsequent petition, shall be filed within one year" from the date the petitioner's conviction becomes final. 42 Pa. Cons. Stat. § 9545(b)(1) (1998). However, three exceptions are provided: if governmental interference prevented filing; if a new constitutional rule is made retroactive; or if new facts arise that could not have been discovered through due diligence. §§ 9545(b)(1)(i)-(iii). A statutory note provides that the 1995 amendments "shall apply to petitions filed after [January 16, 1996]; however, a petitioner whose judgment has become final on or before [January 16, 1996] shall be deemed to have filed a timely petition . . . if the petitioner's first petition is filed within one year of [January 16, 1996]." Statutory Note on § 9545(b).


After reviewing petitioner's PCRA petition, appointed counsel submitted a "no-merit" letter. On July 23, 1997, the Court of Common Pleas dismissed the petition, without calling for a response from the Commonwealth. The court noted that petitioner's claims previously had been litigated and were meritless. Petitioner appealed. On May 6, 1998, the Commonwealth filed a brief in response, asserting that petitioner's [***675] PCRA petition was untimely under the PCRA's time bar, § 9545(b), and citing as support Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). On May 28, 1998, petitioner responded by arguing that the time limit was inapplicable to him. The Superior Court dismissed his petition as untimely on December 3, 1998. The Superior Court reasoned that petitioner's PCRA petition did not come within the statutory [**1811] note following § 9545(b), see ibid., and that petitioner had "neither alleged nor proven" that he fell within any statutory exception, see §§ 9545(b)(1)(i)-(iii). App. 316-317. The Pennsylvania Supreme Court denied review on July 29, 1999. Id., at 372.

On December 24, 1999, petitioner filed a federal habeas petition under 28 U.S.C. § 2254 [28 USCS § 2254] in the District Court for the [*412] Eastern District of Pennsylvania. The Magistrate Judge recommended dismissal of the petition under AEDPA's statute of limitations, § 2244(d)(1), but the District Court rejected that recommendation, App. 447-466 (June 7, 2001, memorandum and order), 503-533 (Mar. 29, 2002, memorandum and order). The District Court recognized that, without tolling, petitioner's petition was time barred. 2 But it held that petitioner was entitled to both statutory and equitable tolling for the time during which his PCRA petition was pending--November 27, 1996 to July 29, 1999. Beginning with statutory tolling, the District Court held that, even though the state court rejected his PCRA petition as untimely, that did not prevent the petition from being "properly filed" within the meaning of § 2244(d)(2). It reasoned that because the PCRA set up judicially reviewable exceptions to the time limit, the PCRA time limit was not a "condition to filing" but a "condition to obtaining relief" as we described those distinct concepts in Artuz v. Bennett, 531 U.S. 4, 11, 148 L. Ed. 2d 213, 121 S. Ct. 361 (2000). The District Court alternatively found extraordinary circumstances justifying equitable tolling.

FOOTNOTES

2 The District Court noted that, under Third Circuit precedent, "petitioners whose convictions became final before the enactment of AEDPA's statute of limitations on April 24, 1996 have until one year from the enactment of the habeas statute of limitations to file their petitions." App. 453, 503. Without tolling, therefore, petitioner's federal habeas petition was filed well after the April 1997 deadline.


The Court of Appeals for the Third Circuit reversed. Pace v. Vaughn, 71 Fed. Appx. 127 (2003) (not precedential). With regard to statutory tolling, it relied on a line of Third Circuit cases to conclude that the PCRA time limit constitutes a "condition to filing" and that, when a state court deems a petition untimely, it is not "properly filed." Id., at 128. With regard to equitable tolling, it held that there were not extraordinary circumstances justifying that remedy. Id., at 129. Because Circuits have divided over whether a state postconviction petition that the state court [*413] has rejected as untimely nonetheless may be "properly filed," we granted certiorari. 3 542 U.S. 965, 159 L. Ed. 2d 856, 125 S. Ct. 26 (2004). We now affirm.

FOOTNOTES

3 Compare, e.g., Dictado v. Ducharme, 244 F.3d 724, 726-728 (CA9 2001), with Merritt v. Blaine, 326 F.3d 157, 162-168 (CA3 2003).


In Artuz v. Bennett, supra, we held that time limits on postconviction petitions are "condition[s] to filing," such that an untimely petition would [***676] not be deemed "properly filed." Id., at 8, 11, 148 L. Ed. 2d 213, 121 S. Ct. 361 ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" including "time limits upon its delivery"). However, we reserved the question we face here: "whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed." Id., at 8, n. 2, 148 L. Ed. 2d 213, 121 S. Ct. 361. Having now considered the question, we see no grounds for treating the two differently.

As in Artuz, we are guided by the "common usage" and "commo[n] underst[anding]" of the phrase "properly filed." Id., at 8, 9, 148 L. Ed. 2d 213, 121 S. Ct. 361. In common understanding, [**1812] a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more "properly filed" than a petition filed after a time limit that permits no exception. The purpose of AEDPA's statute of limitations confirms this commonsense reading. On petitioner's theory, a state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto extension mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay.

Carey v. Saffold, 536 U.S. 214, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (2002), points to the same conclusion. In Saffold, we considered whether § 2244(d)(2) required tolling during the 412 months between the California appellate court's denial of Saffold's postconviction petition and his further petition in the California Supreme Court. The California Supreme Court denied the petition "on the merits and for lack of diligence," which raised the [*414] question whether that court had dismissed for lack of merit, for untimeliness, or for both. Id., at 225, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (internal quotation marks omitted). Although we ultimately remanded, we explained that, "[i]f the California Supreme Court had clearly ruled that Saffold's 412-month delay was 'unreasonable,'" i.e., untimely, "that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was 'entangled' with the merits." Id., at 226, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (emphasis added); see also id., at 236, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (Kennedy, J., dissenting) ("If the California court held that all of [Saffold's] state habeas petitions were years overdue, then they were not 'properly filed' at all, and there would be no tolling of the federal limitations period"). What we intimated in Saffold we now hold: When a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of § 2244(d)(2).

Petitioner makes three principal arguments against this reading. First, he asserts that "condition[s] to filing" are merely those conditions necessary to get a clerk to accept the petition, as opposed to conditions that require some judicial consideration. Respondent David DiGuglielmo (hereinafter respondent) characterizes petitioner's position, which the dissent also appears to embrace, see post, at 462, 161 L. Ed. 2d, at 683-684, as a juridical game of "hot potato," in which a petition will be "properly filed" so long as a petitioner is able to hand it to the clerk [***677] without the clerk tossing it back. Brief for Respondent 16. Be that as it may, petitioner's theory is inconsistent with Artuz, where we explained that jurisdictional matters and fee payments, both of which often necessitate judicial scrutiny, are "condition[s] to filing." 4 See 531 U.S., at 9, 148 L. Ed. 2d 213, 121 S. Ct. 361. We [*415] fail to see how timeliness is any less a "filing" requirement than the mechanical rules that are enforceable by clerks, if such rules exist. 5 [**1813] For example, Pennsylvania Rule of Criminal Procedure 901 (2005), which is entitled "Initiation of Post-Conviction Collateral Proceedings," lists two mandatory conditions: (A) the petition "shall" be filed within the time limit, and (B) the proceedings "shall be initiated by filing" a verified petition and "3 copies with the clerk of the court in which the defendant was convicted and sentenced." The natural reading is that (A) is every bit as much of a "condition to filing" as (B).

FOOTNOTES

4 With regard to jurisdiction, see, e.g., Commonwealth v. Judge, 568 Pa. 377, 387-389, 797 A.2d 250, 257 (2002) (Pennsylvania court had jurisdiction over PCRA petition, despite the fact the petitioner was not in Pennsylvania custody). With regard to filing fees, see, e.g., Pa. Rule Crim. Proc. 904(F) (2005) ("When a defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis").

5 Perhaps not unintentionally, petitioner fails to provide us any guidance on exactly which Pennsylvania Rules are subject to a clerk's striking for noncompliance. We doubt there are many such rules, both because few truly mechanical rules exist and because the role of the clerk in refusing petitions in most courts is quite limited. See, e.g., Fed. Rule Civ. Proc. 5(e) ("The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices"); 28 U.S.C. § 2254 Rule 3(b) (2000 ed., Supp. IV) [USCS Court Rules, § 2254 Rules, Rule 3(b)], ("The clerk must file the petition and enter it on the docket"); see also Advisory Committee's Note on Habeas Corpus Rule 3(b), 28 U.S.C. p 42 (2000 ed., Supp. IV) [USCS Court Rules, § 2254 Rules, Notes following Rule 3] ("Rule 3(b) requires the clerk to file a petition, even though it may otherwise fail to comply with Rule 2. This rule . . . is not limited to those instances where the petition is defective only in form; the clerk would also be required, for example, to file the petition even though it lacked the requisite filing fee or an in forma pauperis form"). Indeed, not even filing in the right court would be a "condition to filing" under petitioner's limited theory. See 42 Pa. Cons. Stat. § 5103(a) (2004) (instructing that, when a petition is filed in the wrong court, it is not to be stricken but transferred to the proper court). Under this theory, "filing" conditions may be an empty set.


Petitioner also argues that, because § 2244(d)(2) refers to a "properly filed application," then any condition that must be applied on a claim-by-claim basis, such as Pennsylvania's time limit, cannot be a "condition to filing." (Emphasis added.) Section 2244, however, refutes this position. Section 2244(b)(3)(C), for example, states that the court of appeals [*416] "may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." (Emphases added.) Yet the "requirements" of the subsection are not applicable to the application as a whole; instead, they require inquiry into specific "claim[s]." See § 2244(b)(2)(A) ("claim" relies on a new rule made retroactive); § 2244(b)(2)(B) ("claim" with new factual predicate). 6 In fact, petitioner's argument is inconsistent with § 2244(d)(2) itself, which refers not [***678] just to a "properly filed application," but to a "properly filed application . . . with respect to the pertinent judgment or claim." (Emphasis added.)

FOOTNOTES

6 Similarly, § 2244(d)(1) provides that a "1-year period of limitation shall apply to an application for a writ of habeas corpus." (Emphasis added.) The subsection then provides one means of calculating the limitation with regard to the "application" as a whole, § 2244(d)(1)(A) (date of final judgment), but three others that require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate).


Finally, petitioner challenges the fairness of our interpretation. He claims that a "petitioner trying in good faith to exhaust state remedies may litigate in state court for years only to find out at the end that he was never 'properly filed,'" and thus that his federal habeas petition is time barred. Brief for Petitioner 30. A prisoner seeking state postconviction relief might avoid this predicament, however, by filing a "protective" petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted. See Rhines v Weber, ante, at 278, 544 U.S. 269, 161 L. Ed. 2d 440, 125 S. Ct. 1528. A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute "good cause" for him to file in federal court. Ibid. ("[I]f the petitioner had good cause for his failure [**1814] to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally [*417] dilatory tactics," then the district court likely "should stay, rather than dismiss, the mixed petition").

The dissent suggests that our conclusion in Artuz, that state procedural bars "prescrib[ing] a rule of decision for a court" confronted with certain claims previously adjudicated or not properly presented are not "filing" conditions, requires the conclusion that the time limit at issue here also is not a "filing" condition. Post, at 425-426, 161 L. Ed. 2d at 683-684; see Artuz v. Bennett, 531 U.S., at 10-11, 148 L. Ed. 2d 213, 121 S. Ct. 361 (discussing N. Y. Crim. Proc. Law §§ 440.10(2)(a) and (c) (McKinney 1994)). The dissent ignores the fact that Artuz itself distinguished between time limits and procedural bars. 531 U.S., at 8-10, 148 L. Ed. 2d 213, 121 S. Ct. 361. For purposes of determining what are "filing" conditions, there is an obvious distinction between time limits, which go to the very initiation of a petition and a court's ability to consider that petition, and the type of "rule of decision" procedural bars at issue in Artuz, which go to the ability to obtain relief. 7 Far from requiring "verbal gymnastics," it must be the case that a petition that cannot even be initiated or considered due to the failure to include a timely claim is not "properly filed." Id., at 10, 148 L. Ed. 2d 213, 121 S. Ct. 361.

FOOTNOTES

7 Compare, e.g., Pa. Rule Crim. Proc. 901(A) (2005) (titled "Initiation of Post-Conviction Collateral Proceedings" and listing compliance with the time limit as one mandatory condition); 42 Pa. Cons. Stat. § 9545(b) (2002) (titled "Jurisdiction and proceedings" and listing the time limit); Commonwealth v. Fahy, 558 Pa. 313, 328, 737 A.2d 214, 222 (1999) (describing the time limit as "jurisdictional"); 2 Ala. Rule Crim. Proc. 32.2(c) (2004-2005) (stating that a court "shall not entertain" a time-barred petition), with 42 Pa. Cons. Stat. § 9543(a) (2002) (titled "Eligibility for relief" and listing procedural bars, like those at issue in Artuz); 2 Ala. Rule Crim. Proc. 32.2(a) (2004-2005) (stating that a "petitioner will not be given relief" if certain procedural bars, like those at issue in Artuz, are present).


For these reasons, we hold that time limits, no matter their form, are [***679] "filing" conditions. Because the state court rejected petitioner's PCRA petition as untimely, it was not "properly filed," and he is not entitled to statutory tolling under § 2244(d)(2).

[***LEdHR2A] [2A] [***LEdHR3] [3] [***LEdHR4A] [4A] [*418] We now turn to petitioner's argument that he is entitled to equitable tolling for the time during which his untimely PCRA petition was pending in the state courts. 8 Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. See, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 112 L. Ed. 2d 435, 111 S. Ct. 453 (1990). Petitioner argues that he has satisfied the extraordinary circumstance test. He reasons that Third Circuit law at the time he sought relief required him to exhaust his state remedies and thus seek PCRA relief, even if it was unlikely the state court would reach the merits of his claims, and that state law made it appear as though he might gain relief, despite the petition's untimeliness. Thus, he claims, "state law and Third Circuit exhaustion law created a trap" on which he detrimentally relied as [**1815] his federal time limit slipped away. Brief for Petitioner 34. Even if we were to accept petitioner's theory, he would not be entitled to relief because he has not established the requisite diligence.

FOOTNOTES

8 [***LEdHR2B] [2B] We have never squarely addressed the question whether equitable tolling is applicable to AEDPA's statute of limitations. Cf. Pliler v. Ford, 542 U.S. 225, 159 L. Ed. 2d 338, 124 S. Ct. 2441 (2004). Because respondent assumes that equitable tolling applies and because petitioner is not entitled to equitable tolling under any standard, we assume without deciding its application for purposes of this case.


[***LEdHR4B] [4B] Petitioner's PCRA petition set forth three claims: that his sentence was "illegal"; that his plea was invalid because he did not understand his life sentence was without the possibility of parole; and that he received ineffective assistance of counsel at "all levels of representation." App. 202, 220. The first two of these claims were available to petitioner as early as 1986. Indeed, petitioner asserted a version of his invalid plea claim in his August 21, 1986, PCHA petition. See id., at 144. The third claim--ineffective assistance of [*419] counsel--related only to events occurring in or before 1991. See id., at 191.

Yet petitioner waited years, without any valid justification, to assert these claims in his November 27, 1996, PCRA petition. 9 Had petitioner advanced his claims within a reasonable time of their availability, he would not now be facing any time problem, state or federal. 10 And not only did petitioner sit on his rights for years before he filed his PCRA petition, but he also sat on them for five more months after his PCRA proceedings became final before deciding to seek relief in federal court. See id., at 372, 373. Under long-established principles, petitioner's lack of diligence precludes equity's [***680] operation. See Irwin v. Department of Veterans Affairs, supra, at 96, 112 L. Ed. 2d 435, 111 S. Ct. 453; McQuiddy v. Ware, 87 U.S. 14, 20 Wall. 14, 19, 22 L. Ed. 311 (1874) ("Equity always refuses to interfere where there has been gross laches in the prosecution of rights").

FOOTNOTES

9 Petitioner's PCRA petition did cite allegedly "new" evidence to support his claims that he received ineffective assistance of counsel and that his plea was invalid because he did not understand his life sentence was without the possibility of parole. However, this new evidence was not new at all: It consisted of affidavits from petitioner's parents and brother regarding a meeting they attended with petitioner's counsel and petitioner in 1985 or 1986. App. 195-199.

10 As noted previously, the PCRA time limit only came into effect in January 1996, see n 1, supra, and petitioner's federal habeas petition was due in April 1997, see n 2, supra.


Because petitioner filed his federal habeas petition beyond the deadline, and because he was not entitled to statutory or equitable tolling for any of that period, his federal petition is barred by the statute of limitations. The judgment of the Court of Appeals is affirmed.

It is so ordered.

DISSENT BY: STEVENS

DISSENT


Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), prisoners in state custody have a 1-year [*420] window in which they may file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1) [28 USCS § 2244(d)(1)]. The statute provides, however, for tolling of the statute of limitations during the pendency of any "properly filed application for State post-conviction or other collateral review." § 2244(d)(2). Under the interpretation of that statutory provision adopted by the Court today, a petition for state postconviction relief does not constitute a "properly filed application for . . . collateral review," even if the application has been accepted, filed, and reviewed in full by the state court. The Court's chosen rule means that a state application will not be deemed properly filed--no matter how long the state court has held the petition, how carefully it has reviewed the merits of the petition's claims, or how it has justified its decision--if the court ultimately [**1816] determines that particular claims contained in the application fail to comply with the applicable state statute of limitations. The Court's interpretation of § 2244(d)(2) is not compelled by the text of that provision and will most assuredly frustrate its purpose. 1

FOOTNOTES

1 Because I would hold that Pace was entitled to statutory tolling, I need not answer the question whether the Court of Appeals erred by reversing the District Court's decision to grant Pace equitable tolling.


I

The words "properly filed application for . . . collateral review" are not defined in AEDPA. We did, however, interpret those words in Artuz v. Bennett, 531 U.S. 4, 148 L. Ed. 2d 213, 121 S. Ct. 361 (2000), by considering their ordinary meaning in the context of the statutory scheme in which they appear. This Court has long understood that a "paper is filed when it is delivered to the proper official and by him received and filed." United States v. Lombardo, 241 U.S. 73, 76, 60 L. Ed. 897, 36 S. Ct. 508 (1916). In Artuz, we expanded upon that understanding, explaining that an "application is 'filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an [*421] application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." 531 U.S., at 8, 148 L. Ed. 2d 213, 121 S. Ct. 361 (citations omitted). Because applications and claims are distinct, we held that a petitioner's application for [***681] postconviction review is "properly filed" even when his legal claims are procedurally barred under state law.

Artuz left open the question presented here--whether a state statute of limitations that allows certain categories of petitioners to file otherwise late applications is comparable to a general precondition to filing (such as the payment of a filing fee) or is instead more akin to a procedural bar that prevents a court from considering particular claims. Id., at 8-9, n. 2, 148 L. Ed. 2d 213, 121 S. Ct. 361. If the state time bar at issue here is more like the former, Pace's failure to comply with it would make his application improperly filed under AEDPA. If, however, the state time bar is more like the procedural bar in Artuz, Pace's failure to comply with it would not change the fact that his application was "properly filed." Before answering that question, it is useful to explain why the state court ultimately found Pace's application to be untimely.

II

Pace filed the application in question--his second request for state postconviction review--pro se on November 27, 1996, under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq (1998). 2 Pace's [*422] PCRA petition raised two claims that he alleged had not been presented during his first round of postconviction review: first, that his life-without-parole sentence was unconstitutional under state and federal law; and second, that his guilty plea colloquy violated due process. Pace provided new evidence that he had not presented during his [**1817] first round of postconviction review, see App. 191, 195-201, and explained to the court that his two new claims should not be procedurally barred because they had not been "fully litigated or waived" under state law, id., at 191. Pace's justifications for raising these two new claims make plain that he was attempting to fit his application within the commonly recognized judicial exceptions to Pennsylvania's then-applicable state procedural bars. 3

FOOTNOTES

2 Pace's conviction became final in 1986, long before the Pennsylvania Legislature adopted the PCRA's current statute of limitations. Pace's original petition for postconviction relief was filed under the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pa. Cons. Stat. § 9541 et seq. (1988) (amended and renamed by Act No. 1988-47, §§ 3, 6, 1988 Pa. Laws pp 337-342), which did not include a statute of limitations. The Pennsylvania Supreme Court denied Pace's request for review on September 3, 1992. The PCRA time bar did not become effective until January 16, 1996. See Act No. 1995-32, § 9579, 1995 Pa. Laws pp. 1125-1126 (Spec. Sess. 1).

3 For instance, Pace argued that his failure to raise the claims below should be excused because of ineffective assistance of counsel. See App. 191-194, 220-226. Pace also argued that a failure to consider the new claim would constitute a "miscarriage of justice," id., at 192, 217-219, and that his new claims challenged the legality of his sentence, id., at 189, 192. To support each of these arguments, Pace cited state cases demonstrating the existence of judicial exceptions to procedural default.


At the time Pace filed his PCRA petition, no Pennsylvania court had yet applied the PCRA statute of limitations to a petitioner whose conviction had become final prior to the effective date of the Act. 4 Nor had the time in which Pace had a right to file a federal habeas petition expired. [***682] Under [*423] AEDPA, Pace had until April 24, 1997, to file a federal habeas petition. See Carey v. Saffold, 536 U.S. 214, 217, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (2002) (1-year limitations period runs from April 24, 1996, for any prisoner whose conviction became final prior to the effective date of the Act). Pace could not, however, obtain relief in a federal court without first exhausting his state remedies. 28 U.S.C. § 2254(b)(1)(A) [28 USCS § 2254(b)(1)(A)]. Thus, as far as Pace knew on November 27, 1996, there was no state or federal statute of limitations that precluded him from obtaining relief, but he was required (1) by AEDPA to go to state court and (2) by state law to demonstrate that his claim was not procedurally barred. Unless Pace's PCRA petition tolled the federal statute of limitations, his claims would be time barred in federal court on April 24, 1997.

FOOTNOTES

4 That time bar provides that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim . . .; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively." 42 Pa. Cons. Stat. § 9545(b) (1998) (emphasis added).


Pace's petition was docketed and the court appointed counsel. On July 23, 1997, the state trial court denied relief on the merits. Pace appealed. In May 1998, well after Pace's time to file a federal habeas petition had expired, the Commonwealth filed a brief in the state appellate court, which argued for the first time that Pace's petition was untimely under the PCRA's statute of limitations. On December 3, 1998, the state appellate court agreed, explaining that none of Pace's several claims fell within the three statutory exceptions to untimeliness contained in 42 Pa. Cons. Stat. § 9545(b) (1998). The state appellate court's conclusion became final on July 29, 1999. It is that determination that provides the basis for this Court's ruling that, as a matter of federal law, the pleading that generated protracted litigation in the state courts was never "properly filed" in the first place.

III

In Artuz v. Bennett, 531 U.S. 4, 148 L. Ed. 2d 213, 121 S. Ct. 361 (2000), we held [**1818] that an application for state postconviction review may be considered "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2) [28 USCS § 2244(d)(2)] even if the application fails to comply with state-law procedural requirements that preclude relief on the merits [*424] of the applicant's claims. 531 U.S., at 8, 148 L. Ed. 2d 213, 121 S. Ct. 361. To construe "'properly filed application' to mean 'application raising claims that are not mandatorily procedurally barred,' [would elide] the difference between an 'application' and a 'claim.' Only individual claims, and not the application containing those claims, can be procedurally defaulted under state law . . . ." Id., at 9, 148 L. Ed. 2d 213, 121 S. Ct. 361. Furthermore:

"Ignoring this distinction would require judges to engage in verbal gymnastics when an application contains some claims that are procedurally barred and some that are not. Presumably a court would have to say that the application is 'properly filed' as to the nonbarred claims, and not 'properly filed' as to the rest. The statute, however, . . . does not contain the [***683] peculiar suggestion that a single application can be both 'properly filed' and not 'properly filed.' Ordinary English would refer to certain claims as having been properly presented or raised, irrespective of whether the application containing those claims was properly filed." Id., at 10, 148 L. Ed. 2d 213, 121 S. Ct. 361.



The same reasoning applies with equal force to the PCRA time bar, which in effect operates in the same manner as the procedural bar in Artuz. Under the PCRA, the state court must determine not whether the entire application is time barred, but rather whether individual claims are time barred given the various exceptions enumerated in § 9545(b). See n 3, supra. Imagine, for example, a Pennsylvania petitioner who states two claims in what is his second state habeas petition. The first claim asserts a violation of due process rights under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), in which the petitioner demonstrates that his failure to raise the claim during his first round of state postconviction review was "the result of interference by government officials with the presentation of the claim" under 42 Pa. Cons. Stat. § 9545(b)(1)(i) (1998). The second claim asserts an ineffective-assistance-of-counsel claim based on the same evidence [*425] raised in the petitioner's first PCRA application. Under the rule announced by the Court today, a federal court would be forced to conclude that the petitioner's first claim was a "properly filed application for . . . collateral review" for AEDPA purposes, while his second claim was improperly filed. This is precisely the type of incoherent result that Artuz sought to avoid.

Incoherent results will not be limited to petitions filed in Pennsylvania. Many States provide exceptions from their postconviction statutes of limitations that apply to applicants' individual claims. See, e.g., Alaska Stat. § 12.72.020 (Lexis 2004) (exempting from the statute of limitations, inter alia, any claims "based on newly discovered evidence"); Fla. Rule Crim. Proc. 3.850 (2005 Supp. Pamphlet) (excepting from the general time bar any claim based on newly discovered evidence, newly recognized rights, or neglect of counsel); Ill. Comp. Stat. Ann., ch. 725, § 5/122-1(c) (West Supp. 2004) (allowing for late fillings when petitioner can show that delay was not due to negligence and excepting entirely from the limitations period any "claim of actual innocence"); Iowa Code § 822.3 (2003) (exception for any "ground of fact or law that could not have been raised within the applicable time period"); Okla. Stat. Ann., Tit. 22, §§ 1089(D)(4)-(8) (West Supp. 2005) (requiring the reviewing court to examine each claim and permitting late filing if any included claim could not have [**1819] previously been presented on account of legal or factual unavailability). For all applications originating in such States, federal district courts must now engage in the very "verbal gymnastics" that Artuz condemned. See 531 U.S., at 10, 148 L. Ed. 2d 213, 121 S. Ct. 361.

The Court's interpretation of "properly filed" in this context conflicts with the meaning we gave the phrase in Artuz. Indeed, the Court's rule suggests that the phrase "properly filed" takes on a different meaning when applied to time bars than it does in the context of procedural bars. This Court [*426] has generally declined to adopt rules that would give [***684] the same statutory provision different meanings in different contexts, see, e.g., Clark v. Martinez, 543 U.S. 371, 386, 160 L. Ed. 2d 734, 125 S. Ct. 716 (2005) and I would decline to do so here.

It would be much wiser simply to apply Artuz's rule to state time bars that, like the PCRA, operate like a procedural bar. In this case, the PCRA time bar's enumerated exceptions, which require state courts to review the claims elucidated in postconviction petitions and to determine whether particular claims trigger the applicability of the exceptions, plainly function like a procedural bar. Thus, I would hold that Pace's petition was "properly filed"--it was "delivered to, and accepted by, the appropriate court officer for placement into the official record" and complied with the "applicable laws and rules governing filings." Artuz, 531 U.S., at 8, 148 L. Ed. 2d 213, 121 S. Ct. 361.

Application of the Artuz rule in this context is clearly consonant with the statutory text. 5 A time bar is nothing more than a species of the larger category of procedural bars that may preclude consideration of the merits of the state petition, and may raise questions that are equally difficult to decide. Indeed, under Federal Rule of Civil Procedure 8, the contention that a claim is untimely is an affirmative defense that can be waived. Because most state laws respecting untimely filings of postconviction petitions function in a manner identical to the procedural bar at issue in Artuz, there is no justification for giving special treatment to any state rule based on untimeliness.

FOOTNOTES

5 The majority claims that this interpretation of "properly filed" is inconsistent with the text of § 2244(d)(2). See ante, at 416, 161 L. Ed. 2d, at 683-684. But the rule I favor relies on the same interpretation, of the same statutory text, that we adopted in Artuz. See 531 U.S., at 10, 148 L. Ed. 2d 213, 121 S. Ct. 361. Unless the Court means implicitly to overrule Artuz, its rule compels the conclusion that the singular phrase "properly filed" takes on different meanings in different contexts. That is the same interpretive exercise we unequivocally rejected in Clark v Martinez, 543 U.S. 371, 386, 160 L. Ed. 2d 734, 125 S. Ct. 716 (2005).


[*427] IV

A rule treating statutes of limitations equivalently to procedural bars would accomplish the statutory purposes Congress sought to vindicate in AEDPA. Congress fashioned 28 U.S.C. § 2244(d)(2) [28 USCS § 2244(d)(2)] in order to provide a strong "incentive for individuals to seek relief from the state courts before filing federal habeas petitions." Duncan v. Walker, 533 U.S. 167, 180, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (2001). As we explained in Duncan:

"The tolling provision of § 2244(d)(2) balances the interests served by the exhaustion requirement and the limitation period. Section 2244(d)(2) promotes the exhaustion of state remedies by protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued. At the same time, the provision limits the harm to the interest in finality by according tolling effect only to 'properly [**1820] filed application[s] . . . .'" Id., at 179-180, 150 L. Ed. 2d 251, 121 S. Ct. 2120.



In construing the words "properly filed," therefore, we must consider not only the "potential for delay in the adjudication of federal law [***685] claims," but also the need to avoid overburdening district courts by encouraging "the very piecemeal litigation that the exhaustion requirement is designed to reduce." Id., at 180, 150 L. Ed. 2d 251, 121 S. Ct. 2120. AEDPA, after all, was designed to "streamline and simplify" the federal habeas system in order to reduce the "interminable delays" and "shameful overloading" that had resulted from "various aspects of this Court's habeas corpus jurisprudence." Hohn v. United States, 524 U.S. 236, 264-265, 141 L. Ed. 2d 242, 118 S. Ct. 1969 (1998) (Scalia, J., dissenting). The Court's rule is unfaithful to these legislative goals.

The Court's principal justification for its rule is the fear that allowing statutory tolling in this context would allow prisoners to extend the federal statute of limitations indefinitely by repeatedly filing meritless state petitions. See ante, at 413, 161 L. Ed. 2d, at 676 ("[A] state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction [*428] petitions"). That fear is misguided for two reasons. First, it ignores a basic fact that we have recognized repeatedly--a "prisoner's principal interest, of course, is in obtaining speedy federal relief on his claims." Rose v. Lundy, 455 U.S. 509, 520, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (plurality opinion). Indeed, it is an understatement to say that the vast majority of federal prisoners "have no incentive to delay adjudication of their claims," Duncan, 533 U.S., at 191, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (Breyer, J., dissenting). Most prisoners have precisely the opposite incentive because delaying the initiation of federal postconviction relief will almost assuredly maximize their periods of incarceration.

Second, the Court's concern is premised on the incorrect assumption that the phrase "properly filed" has no meaningful content unless all untimely petitions are by definition improper. The reason that assumption is wrong is because any claim that a state application has tolled the limitations period will always depend on the district court's finding that the petition was "properly filed." In my view, it would be entirely appropriate, and consistent with the text and purposes of AEDPA, to define "properly filed" as excluding any filings deemed by the district court to be repetitious or abusive. If an application for postconviction review is not filed in good faith--filed, in other words, explicitly to prolong the federal statute of limitations--it would be improper under AEDPA, and statutory tolling would not be appropriate. Federal and state courts have considerable experience identifying and preventing the kind of dilatory pleadings that concern the Court today. See, e.g., McCleskey v. Zant, 499 U.S. 467, 479-489, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). There is no reason that courts could not engage in similar analyses to prevent state prisoners from prolonging indefinitely the AEDPA statute of limitations. 6

FOOTNOTES

6 Such an inquiry is consistent with Artuz, which distinguished between properly filed applications and individual claims contained within those applications. An application filed intentionally to prolong the federal statute of limitations would be improper in its entirety. Indeed, it is difficult to imagine how one particular claim in an application could be improperly motivated to delay federal proceedings, while another claim was "properly filed" under AEDPA.


[*429] Unfortunately, the most likely consequence of the Court's new rule will be to increase, not reduce, delays in [***686] the federal system. The inevitable result of today's [**1821] decision will be a flood of protective filings in the federal district courts. As the history of this case demonstrates, litigants, especially those proceeding pro se, cannot predict accurately whether a state court will find their application timely filed. Because a state court's timeliness ruling cannot be predicted with certainty, prisoners who would otherwise run the risk of having the federal statute of limitations expire while they are exhausting their state remedies will have no choice but to file premature federal petitions accompanied by a request to stay federal proceedings pending the exhaustion of their state remedies. Cf. Rhines v Weber, ante, at 278, 161 L. Ed. 2d 440, 125 S. Ct. 1528. The Court admits that this type of protective filing will result from its holding. See ante, at 416, 161 L. Ed. 2d, at 678. I fail to see any merit in a rule that knowingly and unnecessarily "add[s] to the burdens on the district courts in a way that simple tolling . . . would not." Duncan, 533 U.S., at 192, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (Breyer, J., dissenting).

Beyond increasing the burdens faced by district courts, the Court's tacit encouragement of countless new protective filings will diminish the "statutory incentives to proceed first in state court" and thereby "increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce." Id., at 180, 150 L. Ed. 2d 251, 121 S. Ct. 2120. Congress enacted § 2244(d)(2), along with § 2254(b), to "encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible." Id., at 181, 150 L. Ed. 2d 251, 121 S. Ct. 2120. The Court's rule turns that statutory goal on its head--in essence, encouraging all petitioners who have doubts regarding the timeliness of their state petitions to file simultaneously for relief in federal and state court. Artuz appropriately prevented such a result with respect to procedural [*430] bars. Because I see no reason to depart from that sound approach, I would hold that Pace's application was "properly filed" under AEDPA. I respectfully dissent.

425 F.3d 1145, *; 2005 U.S. App. LEXIS 21630, **

SAMUEL QUINTON BONNER, Petitioner-Appellant, v. TOM CAREY, Warden, Respondent-Appellee.

No. 02-56022

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

425 F.3d 1145; 2005 U.S. App. LEXIS 21630

August 7, 2003 *, Submitted; October 6, 2005, Resubmitted, Pasadena, California


* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
October 6, 2005, Filed

OPINION


[*1146] T.G. NELSON, Circuit Judge:

Samuel Quinton Bonner appeals the district court's dismissal of his habeas petition. We have jurisdiction under 28 U.S.C. § 1291, and vacate and remand for further proceedings. We conclude that the California Superior Court denied Bonner's petition as untimely when it said that he could have raised the petition's claims in an earlier petition and that there "was no reason stated for any delay in this regard." Under Pace v. DiGuglielmo, 1 this means that Bonner's petition was never "properly filed" for [**2] purposes of the tolling provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 2 Accordingly, Bonner is not entitled to statutory tolling for the period from April 24, 1996, when the one-year statutory period began to run, 3 to September 24, 1998, when he filed his federal petition. Thus, regardless of whether the district court misled Bonner concerning his options as to how to proceed with his "mixed" petition, 4 the statute of limitations bars his petition unless he can show that he is entitled to equitable tolling. We remand to allow the district court to consider his arguments for equitable tolling.

FOOTNOTES

1 U.S. , 161 L. Ed. 2d 669, 125 S. Ct. 1807 (2005).

2 Id. at 1812; 28 U.S.C. § 2244(d)(2).

3 See 28 U.S.C. § 2244(d)(1).

4 By "mixed," we mean that Bonner's petition contained both claims that were exhausted in state court and claims that were not.


I

Background

[**3] Bonner was convicted of first degree murder in 1983. He unsuccessfully sought habeas relief in the California courts in 1990 and 1991. In 1995, he filed a new habeas petition in Los Angeles Superior Court. Based on what he deemed newly discovered evidence, Bonner alleged that [*1147] he was deprived of the effective assistance of counsel.

For some reason not apparent from the record, the superior court did not act on Bonner's 1995 petition for two years. In the intervening time, Congress passed AEDPA. AEDPA's one year statute of limitations began running on April 24, 1996, 5 while Bonner was waiting for the superior court to act.

FOOTNOTES

5 28 U.S.C. § 2244(d)(1).


In 1997, apparently frustrated by the court's delay, Bonner re-filed the claims from his 1995 petition in a new document that he entitled "request for a rehearing." Although the superior court still had not ruled on his 1995 petition, the court denied the 1997 petition for rehearing in a minute entry dated February 25, 1997. It offered [**4] the following four reasons for the denial: (1) the petition presented no legally cognizable claim; (2) no new evidence suggested that there was a reasonable probability that Bonner would have received a more favorable result at trial had his counsel handled the case better; (3) Bonner's claims were either raised in his 1990 petition or they could have been raised then, and there "was no reason stated for any delay in this regard;" and (4) Bonner did not verify his petition. The third reason given by the superior court determines the outcome of this appeal. 6

FOOTNOTES

6 The superior court ultimately denied Bonner's 1995 petition in May 1997, stating that it did so for the reasons stated in its February 25, 1997 minute order denying the petition for rehearing. There is no explanation in the record for the court's late action.


Two months after the superior court's denial of his petition for rehearing, on April 15, 1997, Bonner filed a petition in the California Court of Appeal. That court denied his petition on May 5, 1997 "for [**5] the reasons stated in the superior court's February 25, 1997 minute Order." Approximately six months later, Bonner filed a petition in the California Supreme Court. That court denied his petition on May 27, 1998 without citation to authority. Accordingly, the superior court's minute entry is the only reasoned state court decision addressing Bonner's petition.

Bonner filed the federal petition that led to this appeal on September 24, 1998. The Government moved to dismiss the petition, pointing out that, absent tolling, AEDPA's limitations period had expired on April 24, 1997. The district court concluded that Bonner was entitled to tolling while he "was attempting to pursue his state remedies," a period that began when he filed his petition in the superior court in 1995 and ended when the California Supreme Court denied his petition on May 27, 1998. The district court also noted that, "through no fault on the petitioner's part, the Superior Court failed to rule on the [1995] petition" for nearly two years.

The district court nonetheless denied Bonner's federal petition because it was "mixed," after a confusing exchange in which Bonner attempted to seek the stay and abeyance procedure [**6] and the court may have misinterpreted his request. Bonner then filed this appeal.

We deferred submission of Bonner's appeal until the Supreme Court ruled on Pliler v. Ford, 7 sought further briefing, and now conclude that Bonner is not entitled to statutory tolling as the district court held. 8 Accordingly, we vacate and remand to allow the district court to determine if he is entitled to equitable tolling.

FOOTNOTES

7 542 U.S. 225, 124 S. Ct. 2441, 159 L. Ed. 2d 338 (2004).

8 Because we conclude that Bonner is not entitled to statutory tolling, we do not reach the issue he raises on appeal: whether the district court erred when it dismissed his petition as mixed.


[*1148] II

Discussion

Section 2244(d)(2) provides for tolling during the time a "properly filed" state court petition is pending. 9 "Properly filed" means the petition's "delivery and acceptance are in compliance with the applicable laws and rules governing filings" in that state. 10 In Pace v. DiGuglielmo, 11 the United [**7] States Supreme Court held that "when a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)." 12

FOOTNOTES

9 28 U.S.C. § 2244(d)(2).

10 Artuz v. Bennett, 531 U.S. 4, 8, 148 L. Ed. 2d 213, 121 S. Ct. 361 (2000). The Supreme Court has distinguished between "a condition to filing" -- which must be satisfied to be eligible for tolling under AEDPA -- and "a condition to obtaining relief," which need not be satisfied to be eligible for tolling under AEDPA. Id. at 11. State timeliness rules are conditions to filing. Id. at 8.

11 U.S. , 161 L. Ed. 2d 669, 125 S. Ct. 1807 (2005).

12 Id. at 1812 (second alteration in original) (internal quotation marks omitted).


In its order dated February 25, 1997, the California Superior Court explained that it was denying Bonner's petition because, among other reasons, Bonner had either made the same claims in his 1990 [**8] petition or could have done so, and that there "was no reason stated for any delay in this regard." 13 Examining the court's words against the backdrop of California law regarding untimeliness, it is clear that the court was denying Bonner's petition as untimely.

FOOTNOTES

13 We must determine what the superior court's order means because that was the last -- and only -- reasoned decision as to Bonner's 1995 petition. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991); see also Sandgathe v. Maass, 314 F.3d 371, 377-78 nn. 4-5 (9th Cir. 2002) (where state supreme court "incorporated court of appeals briefs," and court of appeals affirmed trial court's denial without opinion, Ylst requires "looking through the second level of mute decision as well as the first" (internal quotation marks and citation omitted)). The California Court of Appeal affirmed for the reasons given by the superior court. The California Supreme Court summarily denied Bonner's petition without citation to any authority.


[**9] The superior court's language tracks California's requirement that, to avoid the state's untimeliness bar, a petitioner bears the burden of establishing: (i) the absence of substantial delay, (ii) good cause for such delay, or (iii) that his claims fall within one of four exceptions to such bar. 14 In this case, Bonner had waited over four years to file his second petition. California courts have deemed shorter periods substantial. 15 Thus, Bonner had to establish good cause for his delay. 16 When the court noted that Bonner had asserted no reason for his delay, then, the court was explaining that he had not met his burden of establishing good cause. Absent good cause, the state's untimeliness bar applied to him. 17

FOOTNOTES

14 In re Gallego, 18 Cal. 4th 825, 77 Cal.Rptr.2d 132, 137, 959 P.2d 290 (Cal. 1998).

15 In re Sanders, 21 Cal. 4th 697, 87 Cal.Rptr.2d 899, 905, 981 P.2d 1038 (Cal. 1999) (3 years); Gallego, 77 Cal.Rptr.2d at 134 (3 years, 9 months).

16 Id.

17 No one argues that Bonner falls into the other exceptions to the bar. Id.


[**10] The fact that California provides exceptions to its timely filing requirement does not "prevent a late application from being considered improperly filed." 18 Neither does the fact that the [*1149] superior court also denied Bonner's petition on the merits save his petition. 19 Because the California courts dismissed Bonner's petition as untimely, his petition was not "properly filed" under AEDPA. Accordingly, he is not entitled to tolling under § 2244(d)(2).

FOOTNOTES

18 Pace, 125 S. Ct. at 1811.

19 See Carey v. Saffold, 536 U.S. 214, 225-26, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (2002) (holding that state court alternative rulings did not make petition timely, and thus "properly filed," under state law).


We recognize the harshness of the result of our decision. Because of the California Superior Court's long delay in ruling on his petition, Bonner lost more than 270 of the 365 days that he had to file his federal petition. Pace, however, expressly held that such a result -- "a petitioner trying [**11] in good faith to exhaust state remedies may litigate in state court for years only to find out at the end that he was never 'properly filed'" -- did not justify a different rule. 20

FOOTNOTES

20 125 S. Ct. at 1813. The Supreme Court further remarked that:

A prisoner . . . might avoid this predicament . . . by filing a "protective" petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted. A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute "good cause" for him to file in federal court.

Id. (citation omitted). It is ironic indeed that the need for this complicated procedure derives from AEDPA, a statute designed to "streamline and simplify" the complicated habeas process. See Hohn v. United States, 524 U.S. 236, 265, 141 L. Ed. 2d 242, 118 S. Ct. 1969 (1998) (Scalia, J., dissenting).


We also acknowledge that Pace implicitly overruled one (and perhaps [**12] two) of our prior holdings concerning AEDPA's statute of limitations. In Saffold v. Carey, 21 we concluded that the phrase "lack of diligence" in a California Supreme Court order referred to the prisoner's five-year delay in initiating the state habeas process, not to his four and one-half month delay in seeking review after the lower court denied his petition. 22 As a result, we held that Saffold's petition was "properly filed" in the California Supreme Court and that he was entitled to tolling of that four and one-half month period. 23 We so held because we determined that the initial five-year delay in filing his petition was irrelevant to whether his petition was "properly filed" under AEDPA because "California's timeliness rule is not a 'condition to filing.'" 24 After Pace, however, it is clear that "time limits, no matter their form, are 'filing' conditions" for purposes of AEDPA. 25 Thus, it is clear that the five-year delay in Carey was relevant to our analysis. Under Pace, if the petition was untimely under California law, it was never properly filed. In such a situation, § 2244(d)(2) does not allow for tolling.

FOOTNOTES

21 312 F.3d 1031, 1035-36 (9th Cir. 2002). [**13]

22 Id.

23 Id. at 1036.

24 Id. at 1035.

25 125 S. Ct. at 1814 (emphasis added).


Likewise, in Chavis v. LeMarque, 26 we held that petitions are "pending" for purposes of AEDPA while state courts are considering them, even if they are ultimately denied for "procedural reasons." 27 To the extent that we meant to include untimeliness as a "procedural reason," we were mistaken. Under Pace, if a state court denies a petition as untimely, none of the time before or during the court's consideration of that petition is statutorily tolled.

FOOTNOTES

26 382 F.3d 921 (9th Cir. 2004), cert. granted, 125 S. Ct. 1969, 161 L. Ed. 2d 855 (2005).

27 Id. at 925-26.


[*1150] Although we hold that Bonner's federal petition was untimely, we nonetheless remand this case to the district court so that Bonner can argue his eligibility for equitable [**14] tolling, as he has not yet had an adequate opportunity to do that. If the district court determines that Bonner is eligible for equitable tolling, Bonner can then argue his eligibility for the stay and abeyance procedure so he can exhaust his unexhausted claims in state court. 28

FOOTNOTES

28 See Rhines v. Weber, 161 L. Ed. 2d 440, 544 U.S. 269, 125 S. Ct. 1528, 1535 (2005) ("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," then the district court likely "should stay, rather than dismiss, the mixed petition.").


VACATED AND REMANDED.
_______________________________________

SAMUEL QUINTON BONNER, Petitioner-Appellant, v. TOM CAREY, Warden, Respondent-Appellee.

No. 02-56022

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

439 F.3d 993; 2006 U.S. App. LEXIS 5704


March 7, 2006, Filed

[*993] ORDER

The opinion filed October 6, 2005, and published at 425 F.3d 1145 (9th Cir. 2005), is amended as follows:

425 F.3d at 1147, fn 6: Delete in its entirety and replace with the following:

[*994] The superior court ultimately denied Bonner's 1995 petition in May 1997. The denial contained no reasoning, and gave no explanation for the court's late action. We thus look through the May 1997 denial to the February 1997 denial, and presume the two petitions were denied for the same reasons. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991).



With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judge Kozinski has voted to deny the petition for rehearing en banc, and Judges T.G. [**2] Nelson and Restani recommended denial.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.

No subsequent petitions for rehearing or petitions for rehearing en banc may be filed.

CHARLES RUSSELL RHINES, Petitioner v. DOUGLAS WEBER, WARDEN

No. 03-9046

SUPREME COURT OF THE UNITED STATES

544 U.S. 269; 125 S. Ct. 1528; 161 L. Ed. 2d 440; 2005 U.S. LEXIS 2930; 73 U.S.L.W. 4263; 18 Fla. L. Weekly Fed. S 209

January 12, 2005, Argued
March 30, 2005, Decided

SYLLABUS


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) [28 U.S.C.S. § 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.

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.

[***447] (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, 71 L. Ed. 2d 379, 102 S. Ct. 1198. 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.

(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 [***448] ones if dismissing the entire petition would unreasonably impair the petitioner's right to obtain federal relief. 346 F.3d 799

, vacated and remanded.

OPINION


[*271] [**1531] Justice O'Connor delivered the opinion of the Court.

[***LEdHR1A] [1A] [***LEdHR2A] [2A] [***LEdHR3A] [3A] [***LEdHR4A] [4A] [***LEdHR5A] [5A] [***LEdHR6A] [6A] 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 [*272] court in the first instance, and then to return to federal court for review of his perfected petition.

[**1532] I

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, 136 L. Ed. 2d 410, 117 S. Ct. 522. 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, 2000 SD 19, 608 N.W.2d 303. Rhines filed his pro se petition for federal habeas corpus pursuant to 28 U.S.C. § 2254 [28 U.S.C.S. § 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) [28 U.S.C.S. § 2244(d)(2)], he still had more than 11 months left before the expiration of the limitations period.

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, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (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 [*273] have been unable to refile in federal court after exhausting the unexhausted claims. [***449] 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.

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. 936, 159 L. Ed. 2d 811, 124 S. Ct. 2905 (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).

II

[***LEdHR1B] [1B] [***LEdHR7] [7] Fourteen years before Congress enacted AEDPA, we held in Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), that federal district courts may not adjudicate mixed petitions [**1533] 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, 71 L. Ed. 2d 379, 102 S. Ct. 1198. We [*274] 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, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (quoting Darr v. Burford, 339 U.S. 200, 204, 94 L. Ed. 761, 70 S. Ct. 587 (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, 71 L. Ed. 2d 379, 102 S. Ct. 1198.

[***LEdHR1C] [1C] 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, 71 L. Ed. 2d 379, 102 S. Ct. 1198. 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. [***450] See Slack v. McDaniel, 529 U.S. 473, 486, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000) (dismissal without prejudice under Lundy "contemplated that the prisoner could return to federal court after the requisite exhaustion").

[***LEdHR1D] [1D] [***LEdHR8] [8] 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) [28 U.S.C.S. § 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 [*275] corpus in federal court does not toll the statute of limitations, Duncan, 533 U.S. at 181-182, 150 L. Ed. 2d 251, 121 S. Ct. 2120.

[***LEdHR1E] [1E] 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 [**1534] 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.

[***LEdHR1F] [1F] [***LEdHR2B] [2B] [***LEdHR3B] [3B] [***LEdHR4B] [4B] [***LEdHR5B] [5B] [***LEdHR6B] [6B] 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 [*276] his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.

[***LEdHR1G] [1G] [***LEdHR9] [9] District courts do ordinarily have authority to issue stays, see Landis v. North American Co., 299 U.S. 248, 254, 81 L. Ed. 153, 57 S. Ct. 163 (1936), where such a stay would be a proper exercise of discretion, see Clinton v. Jones, 520 U.S. 681, 706, 137 L. Ed. 2d 945, 117 S. Ct. 1636 (1997). AEDPA does not deprive district [***451] courts of that authority, cf. 28 U.S.C. § 2254(b)(1)(A) [28 U.S.C.S. § 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.

[***LEdHR10] [10] [***LEdHR11] [11] 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, 155 L. Ed. 2d 363, 123 S. Ct. 1398 (2003). See also Duncan, 533 U.S., at 179, 150 L. Ed. 2d 251, 121 S. Ct. 2120. 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.

[***LEdHR12] [12] 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, 150 L. Ed. 2d 251, 121 S. Ct. 2120. 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) [28 U.S.C.S. § 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, [*277] be sure that you first have taken each one to state court." 455 U.S., at 520, 71 L. Ed. 2d 379, 102 S. Ct. 1198.

[***LEdHR1H] [1H] 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, 533 U.S., at 180, 150 L. Ed. 2d 251, 121 S. Ct. 2120 ("[D]iminution of statutory incentives to proceed first in state court would . . . increase the risk of the very piecemeal [**1535] litigation that the exhaustion requirement is designed to reduce").

[***LEdHR1I] [1I] [***LEdHR2C] [2C] [***LEdHR6C] [6C] 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) [28 U.S.C.S. § 2254(b)(2)] ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the [***452] failure of the applicant to exhaust the remedies available in the courts of the State").

[***LEdHR3C] [3C] 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, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (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 [*278] 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.

[***LEdHR4C] [4C] [***LEdHR5C] [5C] 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, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (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, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (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").

[*279] [***LEdHR6D] [6D] 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, [**1536] whether the District Court's grant of a stay in this case constituted an abuse of discretion.

It is so ordered. [***453]

CONCUR BY: STEVENS; SOUTER

CONCUR


Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring.

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 277, 161 L. Ed. 2d, at 452, 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, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); see also Slack v. McDaniel, 529 U.S. 473, 487, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000).

Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring in part and concurring in the judgment.

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 277, 161 L. Ed. 2d, at 452, I would simply hold the order unavailable on a demonstration of "intentionally dilatory litigation tactics," ante, at 278, 161 L. Ed. 2d, at 452. 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.