OCTOBER TERM, 2000
Syllabus
DUNCAN, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY
v. WALKER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No.00-121. Argued March 26, 200l-Decided June 18,2001
The time during which an "application for State post-conviction
or other collateral review" is pending tolls the limitation period
for filing federal habeas petitions. 28 U. S. C. § 2244(d)(2).
Before the April 24, 1996, effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), respondent's state
robbery conviction became final. He filed,
inter alia, a
federal habeas petition under §2254. The District Court dismissed
the petition without prejudice because it was not apparent that
respondent had exhausted available state remedies. On May 20, 1997,
without having returned to state court, respondent filed another
federal habeas petition. The District Court dismissed that petition
because respondent had not filed within a reasonable time from
AEDPA's effective date. In reversing, the Second Circuit found that
respondent's first federal habeas petition was an application for
"other collateral review" that tolled the limitation period under §
2244(d)(2) and made his current petition timely.
Held: A federal habeas petition is not an "application
for State postconviction or other collateral review" within the
meaning of § 2244(d)(2). As a result, § 2244(d)(2) did not toll the
limitation period during the pendency of respondent's first federal
habeas petition. The Court begins with the language of the statute.
See,
e. g.,
Williams v.
Taylor, 529 U. S. 420, 431.
Petitioner's contention that "State" applies to the entire phrase
"post-conviction or other collateral review" is correct. To begin
with, Congress placed "State" before that phrase without
specifically naming any kind of "Federal" review. The fact that
other AEDPA provisions denominate expressly both "State" and
"Federal" proceedings, see,
e. g., § 2254(i), supplies
strong evidence that Congress would have mentioned "Federal" review
expressly had Congress intended to include federal review. See
Bates v.
United States, 522 U. S. 23, 29-30.
Respondent's contrary construction would render the word "State"
insignificant, if not wholly superfluous. This Court's duty to give
effect, where possible, to every word of a statute,
United
States v.
Menasche, 348 U. S. 528, 538-539,
makes the Court reluctant to treat statutory terms as surplusage.
This is especially so when the
168
Syllabus
term occupies so pivotal a place in the statutory scheme as the
word "State" in the federal habeas statute. But under respondent's
rendition, "State" has no operative effect on the scope of §
2244(d)(2). The clause would have precisely the same content were
it to read "postconviction or other collateral review." Contrary to
the Second Circuit's characterization, petitioner's interpretation
does not yield the linguistic oddity "State other collateral
review," but more naturally yields the understanding "other State
collateral review." Further, that court's reasoning that the phrase
"other collateral review" would be rendered meaningless if it did
not refer to federal habeas petitions depends on the incorrect
premise that the only state "collateral" review is
"post-conviction" review. "[O]ther collateral review" could
include,
e. g., a state court civil commitment or civil
contempt order. Congress also may have used "post-conviction or
other collateral" in recognition of the diverse terminology that
different States employ to represent the different forms of
collateral review that are available after a conviction.
Examination of the AEDPA provision establishing the limitation
period for filing § 2254 petitions in state capital cases, §
2263(b)(2), shows that Congress used the disjunctive clause
"post-conviction review or other collateral relief" where the
latter term could not possibly include anything federal within its
ambit. Petitioner's construction is also far more consistent than
respondent's with AEDPA's purpose to further the principles of
comity, finality, and federalism. Respondent contends that
petitioner's interpretation creates the potential for unfairness to
litigants who file timely federal petitions that are dismissed
without prejudice after the limitation period has expired. But the
Court's sole task here is one of statutory construction. And in
light of the facts that respondent never cured the defects that led
to the dismissal of his first federal petition during the remaining
nine months of the limitation period, and that his 1996 and 1997
petitions contained different claims, this Court has no occasion to
address alternative scenarios. Pp. 172-182.
208 F.3d
357, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ.,
joined. SOUTER, J., filed a concurring opinion,
post, p.
182. STEVENS, J., filed an opinion concurring in part and
concurring in the judgment, in which SouTER, J., joined,
post, p. 182. BREYER, J., filed a dissenting opinion, in
which GINSBURG, J., joined,
post, p. 185.
Preeta D. Bansal, Solicitor General of New York, argued
the cause for petitioner. With her on the briefs were
Eliot
169
Spitzer, Attorney General, Daniel Smirlock, Deputy Solicitor
General, and David Axinn, Robert H. Easton, Robin Forshaw, and
Martin A. Hotvet, Assistant Solicitors General.
Deborah Wolikow Loewenberg, by appointment of the Court,
531 U. S. 1066, argued the cause for respondent. With her on the
brief were
John H. Blume and
Keir M. Weyble.*
JUSTICE O'CONNOR delivered the opinion of the Court. Title 28 U.
S. C. § 2244(d)(2) (1994 ed., Supp. V) provides:
"The 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." This case presents
the question whether a federal habeas corpus petition is an
"application for State postconviction or other collateral review"
within the meaning of this provision.
I
In 1992, several judgments of conviction for robbery were
entered against respondent Sherman Walker in the
* A brief of
amici curiae urging reversal was filed for
the Commonwealth of Massachusetts et al. by
Thomas F.
Reilly, Attorney General of Massachusetts, and
Catherine
E. Sullivan and
William J.
Meade, Assistant
Attorneys General, and by the Attorneys General for their
respective States as follows:
Bill Pryor of Alabama,
M.
Jane Brady of Delaware,
Earl Anzai of Hawaii,
Thomas J.
Miller of Iowa, J.
Joseph Curran,
Jr., of Maryland,
Michael C.
Moore of
Mississippi,
Jeremiah W (Jay) Nixon of Missouri,
Mike
McGrath of Montana,
Don Stenberg of Nebraska,
Frankie
Sue Del Papa of Nevada,
Betty D. Montgomery of Ohio,
D. Michael Fisher of Pennsylvania,
Mark Barnett of
South Dakota,
Paul G.
Summers of Tennessee,
Mark
L. Shurtleff of Utah,
Mark L. Earley of Virginia,
Christine
Leon Friedman and
Joshua L. Dratel filed a brief
for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance.
Kent S.
Scheidegger filed a brief for the Criminal
Justice Legal Foundation as
amicus curiae.
170
New York state courts. The last of these convictions came in
June 1992, when respondent pleaded guilty to robbery in the first
degree in the New York Supreme Court, Queens County. Respondent was
sentenced to 7 to 14 years in prison on this conviction.
Respondent unsuccessfully pursued a number of state remedies in
connection with his convictions. It is unnecessary to describe all
of these proceedings herein. Respondent's last conviction was
affirmed on June 12, 1995. Respondent was later denied leave to
appeal to the New York Court of Appeals. Respondent also sought a
writ of error
coram nobis, which the Appellate Division
denied on March 18, 1996. Respondent's last conviction became final
in April 1996, prior to the April 24, 1996, effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110
Stat. 1214.
In a single document dated April 10, 1996, respondent filed a
complaint under Rev. Stat. § 1979, 42 U. S. C. § 1983, and a
petition for habeas corpus under 28 U. S. C. § 2254 in the United
States District Court for the Eastern District of New York. On July
9, 1996, the District Court dismissed the complaint and petition
without prejudice. With respect to the habeas petition, the
District Court, citing § 2254(b), concluded that respondent had not
adequately set forth his claim because it was not apparent that
respondent had exhausted available state remedies. The District
Court noted that, for example, respondent had failed to specify the
claims litigated in the state appellate proceedings relating to his
robbery convictions.
On May 20, 1997, more than one year after AEDPA's effective
date, respondent filed another federal habeas petition in the same
District Court. It is undisputed that respondent had not returned
to state court since the dismissal of his first federal habeas
filing. On May 6, 1998, the District Court dismissed the petition
as time barred because
171
respondent had not filed the petition within a "reasonable time"
from AEDPA's effective date.
The United States Court of Appeals for the Second Circuit
reversed the District Court's judgment, reinstated the habeas
petition, and remanded the case for further proceedings.
Walker v.
Artuz, 208 F.3d
357 (2000). The Court of Appeals noted at the outset that,
because respondent's conviction had become final prior to AEDPA's
effective date, he had until April 24, 1997, to file his federal
habeas petition. The court also observed that the exclusion from
the limitation period of the time during which respondent's first
federal habeas petition was pending in the District Court would
render the instant habeas petition timely.
The Court of Appeals held that respondent's first federal habeas
petition had tolled the limitation period because it was an
application for "other collateral review" within the meaning of §
2244(d)(2). The court characterized the disjunctive "or" between
"post-conviction" and "other collateral" as creating a "distinct
break" between two kinds of review.
Id., at 359. The court
also stated that application of the word "State" to both
"post-conviction" and "other collateral" would create a "linguistic
oddity" in the form of the construction "State other collateral
review."
Id., at 360. The court further reasoned that the
phrase "other collateral review" would be meaningless if it did not
refer to federal habeas petitions. The court therefore concluded
that the word "State" modified only "post-conviction."
The Court of Appeals also found no conflict between its
interpretation of the statute and the purpose of AEDPA. The court
found instead that its construction would promote the goal of
encouraging petitioners to file their federal habeas applications
as soon as possible.
We granted certiorari, 531 U. S. 991 (2000), to resolve a
conflict between the Second Circuit's decision and the decisions of
three other Courts of Appeals. See
Jiminez v.
Rice,
222 F.3d
1210 (CA9 2000);
Grooms v.
Johnson,
208 F.3d
488
172
(CA5 1999)
(per curiam); Jones v.
Morton,
195 F.3d
153 (CA3 1999). One other Court of Appeals has since adopted
the Second Circuit's view.
Petrick v.
Martin,
236 F.3d
624 (CAlO 2001). We now reverse.
II
Our task is to construe what Congress has enacted. We begin, as
always, with the language of the statute. See,
e. g.,
Williams v.
Taylor, 529 U. S. 420, 431
(2000);
Public Employees Retirement System of Ohio v.
Betts, 492 U.
S. 158, 175 (1989);
Watt v.
Energy Action Ed.
Foundation, 454
U. S. 151, 162 (1981). Respondent reads § 2244(d)(2) to apply
the word "State" only to the term "post-conviction" and not to the
phrase "other collateral." Under this view, a properly filed
federal habeas petition tolls the limitation period. Petitioner
contends that the word "State" applies to the entire phrase
"post-conviction or other collateral review." Under this view, a
properly filed federal habeas petition does not toll the limitation
period.
We believe that petitioner's interpretation of § 2244(d)(2) is
correct for several reasons. To begin with, Congress placed the
word "State" before "post-conviction or other collateral review"
without specifically naming any kind of "Federal" review. The
essence of respondent's position is that Congress used the phrase
"other collateral review" to incorporate federal habeas petitions
into the class of applications for review that toll the limitation
period. But a comparison of the text of § 2244(d)(2) with the
language of other AEDPA provisions supplies strong evidence that,
had Congress intended to include federal habeas petitions within
the scope of § 2244(d)(2), Congress would have mentioned "Federal"
review expressly. In several other portions of AEDPA, Congress
specifically used both the words "State" and "Federal" to denote
state and federal proceedings. For example, 28 U. S. C. § 2254(i)
(1994 ed., Supp. V) provides: "The ineffectiveness or incompetence
of counsel
173
during Federal or State collateral post-conviction proceedings
shall not be a ground for relief in a proceeding arising under
section 2254." Likewise, the first sentence of 28 U. S. C. §
2261(e) (1994 ed., Supp. V) provides: "The ineffectiveness or
incompetence of counsel during State or Federal post-conviction
proceedings in a capital case shall not be a ground for relief in a
proceeding arising under section 2254." The second sentence of §
2261(e) states: "This limitation shall not preclude the appointment
of different counsel, on the court's own motion or at the request
of the prisoner, at any phase of State or Federal post-conviction
proceedings on the basis of the ineffectiveness or incompetence of
counsel in such proceedings." Finally, 28 U. S. C. § 2264(a)(3)
(1994 ed., Supp. V) excuses a state capital prisoner's failure to
raise a claim properly in state court where the failure is "based
on a factual predicate that could not have been discovered through
the exercise of due diligence in time to present the claim for
State or Federal post-conviction review."
Section 2244(d)(2), by contrast, employs the word "State," but
not the word "Federal," as a modifier for "review." It is well
settled that" '[w]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.'"
Bates
v.
United States, 522 U. S. 23, 29-30 (1997)
(quoting
Russello v.
United States, 464 U. S. 16, 23 (1983)).
We find no likely explanation for Congress' omission of the word
"Federal" in § 2244(d)(2) other than that Congress did not intend
properly filed applications for federal review to toll the
limitation period. It would be anomalous, to say the least, for
Congress to usher in federal review under the generic rubric of
"other collateral review" in a statutory provision that refers
expressly to "State" review, while denominating expressly both
"State" and "Federal" proceedings in other parts of the same
statute. The anomaly is underscored by the fact that the words
174
"State" and "Federal" are likely to be of no small import when
Congress drafts a statute that governs federal collateral review of
state court judgments.
Further, were we to adopt respondent's construction of the
statute, we would render the word "State" insignificant, if not
wholly superfluous. "It is our duty 'to give effect, if possible,
to every clause and word of a statute.'"
United States v.
Menasche, 348
U. S. 528, 538-539 (1955) (quoting
Montclair v.
Ramsdell, 107
U. S. 147, 152 (1883)); see also
Williams v.
Taylor, 529 U.
S. 362, 404 (2000) (describing this rule as a "cardinal
principle of statutory construction");
Market Co. v.
Hoffman, 101
U. S. 112, 115 (1879) ("As early as in Bacon's Abridgment,
sect. 2, it was said that 'a statute ought, upon the whole, to be
so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant' "). We are thus
"reluctan[t] to treat statutory terms as surplusage" in any
setting.
Babbitt v.
Sweet Home Chapter, Communities for
Great Ore., 515
U. S. 687, 698 (1995); see also
Ratzlaf v.
United
States, 510 U. S.
135, 140 (1994). We are especially unwilling to do so when the
term occupies so pivotal a place in the statutory scheme as does
the word "State" in the federal habeas statute. But under
respondent's rendition of § 2244(d)(2), Congress' inclusion of the
word "State" has no operative effect on the scope of the provision.
If the phrase "State post-conviction or other collateral review" is
construed to encompass both state and federal collateral review,
then the word "State" places no constraint on the class of
applications for review that toll the limitation period. The clause
instead would have precisely the same content were it to read
"post-conviction or other collateral review."
The most that could then be made of the word "State" would be to
say that Congress singled out applications for "State
post-conviction" review as one example from the universe of
applications for collateral review. Under this approach, however,
the word "State" still does nothing to
175
delimit the entire class of applications for review that toll
the limitation period. A construction under which the word "State"
does nothing more than further modify "postconviction" relegates
"State" to quite an insignificant role in the statutory provision.
We believe that our duty to "give each word some operative effect"
where possible,
Walters v.
Metropolitan Ed. Enterprises,
Inc., 519 U. S.
202, 209 (1997), requires more in this context.
The Court of Appeals characterized petitioner's interpretation
as producing the "linguistic oddity" of "State other collateral
review," which is "an ungainly construction that [the Court of
Appeals did] not believe Congress intended." 208 F. 3d, at 360. But
nothing precludes the application of the word "State" to the entire
phrase "post-conviction or other collateral review," regardless of
the resulting construction that one posits. The term "other
collateral" is easily understood as a unit to which "State" applies
just as "State" applies to "post-conviction." Moreover,
petitioner's interpretation does not compel the verbal formula
hypothesized by the Court of Appeals. Indeed, the ungainliness of
"State other collateral review" is a very good reason why Congress
might have avoided that precise verbal formulation in the first
place. The application of the word "State" to the phrase "other
collateral review" more naturally yields the understanding "other
State collateral review."
The Court of Appeals also reasoned that petitioner's reading of
the statute fails to give operative effect to the phrase "other
collateral review." The court claimed that "the phrase 'other
collateral review' would be meaningless if it did not refer to
federal habeas petitions."
Ibid. This argument, however,
fails because it depends on the incorrect premise that there can be
no form of state "collateral" review "other" than state
"post-conviction" review within the meaning of § 2244(d)(2). To the
contrary, it is possible for "other collateral review" to include
review of a state court judgment that is not a criminal
conviction.
176
Section 2244(d)(1)'s i-year limitation period applies to "an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court." Section 2244(d)(2)
provides for tolling during the pendency of "a properly filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim." Nothing in the
language of these provisions requires that the state court judgment
pursuant to which a person is in custody be a criminal conviction.
Nor does 28 U. S. C. § 2254 (1994 ed. and Supp. V) by its terms
apply only to those in custody pursuant to a state criminal
conviction. See,
e. g., § 2254(a) ("a person in custody
pursuant to the judgment of a State court"); § 2254(b)(1) ("a
person in custody pursuant to the judgment of a State court"); §
2254(d) ("a person in custody pursuant to the judgment of a State
court"); § 2254(e)(1) ("a person in custody pursuant to the
judgment of a State court").
Incarceration pursuant to a state criminal conviction may be by
far the most common and most familiar basis for satisfaction of the
"in custody" requirement in § 2254 cases. But there are other types
of state court judgments pursuant to which a person may be held in
custody within the meaning of the federal habeas statute. For
example, federal habeas corpus review may be available to challenge
the legality of a state court order of civil commitment or a state
court order of civil contempt. See,
e. g.,
Francois
v.
Henderson, 850 F.2d
231 (CA5 1988) (entertaining a challenge brought in a federal
habeas petition under § 2254 to a state court's commitment of a
person to a mental institution upon a verdict of not guilty by
reason of insanity);
Leonard v.
Hammond, 804 F.2d
838 (CA4 1986) (holding that constitutional challenges to civil
contempt orders for failure to pay child support were cognizable
only in a habeas corpus action). These types of state court
judgments neither constitute nor require criminal convictions. Any
state collateral review that is available with respect to these
judgments, strictly speak-
177
ing, is not post-conviction review. Accordingly, even if "
'''State post-conviction review" means all collateral review of a
conviction provided by a state,'" 208 F. 3d, at 360 (quoting
Barrett v.
Yearwood, 63 F. Supp. 2d 1245, 1250 (ED
Cal. 1999)), the phrase "other collateral review" need not include
federal habeas petitions in order to have independent meaning.
Congress also may have employed the construction "postconviction
or other collateral" in recognition of the diverse terminology that
different States employ to represent the different forms of
collateral review that are available after a conviction. In some
jurisdictions, the term "postconviction" may denote a particular
procedure for review of a conviction that is distinct from other
forms of what conventionally is considered to be postconviction
review. For example, Florida employs a procedure that is officially
entitled a "Motion to Vacate, Set Aside, or Correct Sentence." Fla.
Rule Crim. Proc. 3.850 (2001). The Florida courts have commonly
referred to a Rule 3.850 motion as a "motion for post-conviction
relief" and have distinguished this procedure from other vehicles
for collateral review of a criminal conviction, such as a state
petition for habeas corpus. See,
e. g.,
Bryant v.
State, 780 So. 2d 978, 979 (Fla. App. 2001) ("[A] petition
for habeas corpus cannot be used to circumvent the two-year period
for filing motions for post-conviction relief");
Finley v.
State, 394 So. 2d 215, 216 (Fla. App. 1981) ("[T]he remedy
of habeas corpus is not available as a substitute for
post-conviction relief under Rule 3.850"). Congress may have
refrained from exclusive reliance on the term "post-conviction" so
as to leave no doubt that the tolling provision applies to all
types of state collateral review available after a conviction and
not just to those denominated "post-conviction" in the parlance of
a particular jurisdiction.
Examination of another AEDPA provision also demonstrates that
"other collateral" need not refer to any form of
178
federal review in order to have meaning. Title 28 U. S. C. §
2263 (1994 ed., Supp. V) establishes the limitation period for
filing § 2254 petitions in state capital cases that arise from
jurisdictions meeting the "opt-in" requirements of § 2261. Section
2263(b)(2) provides that the limitation period "shall be tolled
from the date on which the first petition for postconviction review
or other collateral relief is filed until the final State court
disposition of such petition." The reference to "the final State
court disposition of such petition" makes it clear that only
petitions filed in state court, and not petitions for federal
review, toll the limitation period in capital cases. Congress
therefore used the phrases "postconviction review" and "other
collateral relief" in a disjunctive clause where the term "other
collateral," whatever its precise content, could not possibly
include anything federal within its ambit. This illustration
vitiates any suggestion that "other collateral" relief or review
must include federal relief or review in order for the term to have
any significance apart from "post-conviction" review.
Consideration of the competing constructions in light of AEDPA's
purposes reinforces the conclusion that we draw from the text.
Petitioner's interpretation of the statute is consistent with
"AEDPA's purpose to further the principles of comity, finality, and
federalism."
Williams, 529 U. S., at 436. Specifically,
under petitioner's construction, § 2244(d)(2) promotes the
exhaustion of state remedies while respecting the interest in the
finality of state court judgments. Under respondent's
interpretation, however, the provision would do far less to
encourage exhaustion prior to seeking federal habeas review and
would hold greater potential to hinder finality.
The exhaustion requirement of § 2254(b) ensures that the state
courts have the opportunity fully to consider federallaw challenges
to a state custodial judgment before the lower federal courts may
entertain a collateral attack upon that
179
judgment. See,
e. g., O'Sullivan v.
Boerckel,
526 U. S. 838,
845 (1999) ("[T]he exhaustion doctrine is designed to give the
state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the
federal courts");
Rose v.
Lundy, 455 U. S. 509, 518-519
(1982) ("A rigorously enforced total exhaustion rule will encourage
state prisoners to seek full relief first from the state courts,
thus giving those courts the first opportunity to review all claims
of constitutional error"). This requirement "is principally
designed to protect the state courts' role in the enforcement of
federal law and prevent disruption of state judicial proceedings."
Id., at 518. The exhaustion rule promotes comity in that"
'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.'"
Ibid. (quoting
Darr v.
Burford,
339 U. S. 200,
204 (1950)); see also
O'Sullivan, supra, at 844 ("Comity
thus dictates that when a prisoner alleges that his continued
confinement for a state court conviction violates federal law, the
state courts should have the first opportunity to review this claim
and provide any necessary relief").
The i-year limitation period of § 2244(d)(1) quite plainly
serves the well-recognized interest in the finality of state court
judgments. See generally
Calderon v.
Thompson, 523 U.
S. 538, 555-556 (1998). This provision 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.
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
180
harm to the interest in finality by according tolling effect
only to "properly filed application[s] for State post-conviction or
other collateral review."
By tolling the limitation period for the pursuit of state
remedies and not during the pendency of applications for federal
review, § 2244(d)(2) provides a powerful incentive for litigants to
exhaust all available state remedies before proceeding in the lower
federal courts. But if the statute were construed so as to give
applications for federal review the same tolling effect as
applications for state collateral review, then § 2244(d)(2) would
furnish little incentive for individuals to seek relief from the
state courts before filing federal habeas petitions. The tolling
provision instead would be indifferent between state and federal
filings. While other statutory provisions, such as § 2254(b)
itself, of course, would still provide individuals with good reason
to exhaust, § 2244(d)(2) would be out of step with this design. At
the same time, respondent's interpretation would further undermine
the interest in finality by creating more potential for delay in
the adjudication of federal law claims.
A diminution of statutory incentives to proceed first in state
court would also increase the risk of the very piecemeal litigation
that the exhaustion requirement is designed to reduce. Cf.
Rose, 455 U. S., at 520. We have observed that "strict
enforcement of the exhaustion requirement will encourage habeas
petitioners to exhaust all of their claims in state court and to
present the federal court with a single habeas petition."
Ibid. But were we to adopt respondent's construction of §
2244(d)(2), we would dilute the efficacy of the exhaustion
requirement in achieving this objective. Tolling the limitation
period for a federal habeas petition that is dismissed without
prejudice would thus create more opportunities for delay and
piecemeal litigation without advancing the goals of comity and
federalism that the exhaustion requirement serves. We do not
believe that Congress designed the statute in this manner.
181
The Court of Appeals reasoned that its interpretation of the
statute would further Congress' goal "to spur defendants to file
their federal habeas petitions more quickly." 208 F. 3d, at 361.
But this view fails to account sufficiently for AEDPA's clear
purpose to encourage litigants to pursue claims in state court
prior to seeking federal collateral review. See,
e. g., §§
2254(b), 2254(e)(2), 2264(a). Section 2244(d)(1)'s limitation
period and § 2244(d)(2)'s tolling provision, together with §
2254(b)'s exhaustion requirement, encourage litigants
first
to exhaust all state remedies and
then to file their federal
habeas petitions as soon as possible.
Respondent contends that petitioner's construction of the
statute creates the potential for unfairness to litigants who file
timely federal habeas petitions that are dismissed without
prejudice after the limitation period has expired. But our sole
task in this case is one of statutory construction, and upon
examining the language and purpose of the statute, we are convinced
that § 2244(d)(2) does not toll the limitation period during the
pendency of a federal habeas petition.
We also note that, when the District Court dismissed
respondent's first federal habeas petition without prejudice,
respondent had more than nine months remaining in the limitation
period in which to cure the defects that led to the dismissal. It
is undisputed, however, that petitioner neither returned to state
court nor filed a nondefective federal habeas petition before this
time had elapsed. Respondent's May 1997 federal habeas petition
also contained claims different from those presented in his April
1996 petition. In light of these facts, we have no occasion to
address the alternative scenarios that respondent describes. We
also have no occasion to address the question that JUSTICE STEVENS
raises concerning the availability of equitable tolling.
We hold that an application for federal habeas corpus review is
not an "application for State post-conviction or other collateral
review" within the meaning of 28 U. S. C. § 2244(d)(2). Section
2244(d)(2) therefore did not toll the
182
Opinion of STEVENS, J.
limitation period during the pendency of respondent's first
federal habeas petition. The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE SOUTER, concurring.
Although I join the Court's opinion in full, I have joined
JUSTICE STEVENS'S separate opinion pointing out that nothing bars a
district court from retaining jurisdiction pending complete
exhaustion of state remedies, and that a claim for equitable
tolling could present a serious issue on facts different from those
before us.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, concurring in
part and concurring in the judgment.
For substantially the reasons stated in the Court's opinion,
ante, at 172-178, I agree that the better reading of 28 U.
S. C. § 2244(d)(2) (1994 ed., Supp. V) is that it encompasses only
"State" applications for "post-conviction or other collateral
review." Thus, as the Court holds, "an application for federal
habeas corpus review is not an 'application for State
post-conviction or other collateral review' within the meaning of
28 U. S. C. § 2244(d)(2)."
Ante, at 181. I write separately
to add two observations regarding the equitable powers of the
federal courts, which are unaffected by today's decision construing
a single provision of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 110 Stat. 1214.
First, although the Court's pre-AEDPA decision in
Rose v.
Lundy, 455 U.
S. 509, 522 (1982), prescribed the dismissal of federal habeas
corpus petitions containing unexhausted claims, in our post-AEDPA
world there is no reason why a district court should not retain
jurisdiction over a meritorious claim and stay further proceedings
pending the complete
183
exhaustion of state remedies. Indeed, there is every reason to
do so when AEDPA gives a district court the alternative of simply
denying a petition containing unexhausted but nonmeritorious
claims, see 28 U. S. C. § 2254(b)(2) (1994 ed., Supp. V), and when
the failure to retain jurisdiction would foreclose federal review
of a meritorious claim because of the lapse of AEDPA's i-year
limitations period.
Second, despite the Court's suggestion that tolling the
limitations period for a first federal habeas petition would
undermine the "purposes" of AEDPA, see
ante, at 178-182,
neither the Court's narrow holding, nor anything in the text or
legislative history of AEDPA, precludes a federal court from
deeming the limitations period tolled for such a petition as a
matter of equity. The Court's opinion does not address a federal
court's ability to toll the limitations period apart from §
2244(d)(2). See
ante, at 181. Furthermore, a federal court
might very well conclude that tolling is appropriate based on the
reasonable belief that Congress could not have intended to bar
federal habeas review for petitioners who invoke the court's
jurisdiction within the i-year interval prescribed by AEDPA.
After all, federal habeas corpus has evolved as the product of
both judicial doctrine and statutory law. See generally E.
Chemerinsky, Federal Jurisdiction § 15 (3d ed. 1999). In the
context of AEDPA's i-year limitations period, which by its terms
runs from "the date on which the judgment became final," see §
2244(d)(1)(A), the Courts of Appeals have uniformly created a
i-year grace period, running from the date of AEDPA's enactment,
for prisoners whose state convictions became final prior to AEDPA.l
Similarly, federal
1 See,
e. g., Gaskins v.
Duval, 183 F.3d
8, 9
(CA1 1999);
Ross v.
Artuz, 150 F.3d
97, 100-103
(CA2 1998);
Burns v.
Morton,
134 F.3d
109, 111-112
(CA3 1998);
Brown v.
Angelone, 150 F.3d
370, 374-376
(CA4 1998);
United States v.
Flores, 135 F.3d
1000, 1002, n.7, 1006
(CA5 1998);
Austin v.
Mitchell, 200 F.3d
391, 393
(CA6 1999);
Lindh v.
Murphy,
96 F.3d
856,
184
Opinion of STEVENS, J.
courts may well conclude that Congress simply overlooked the
class of petitioners whose timely filed habeas petitions remain
pending in district court past the limitations period, only to be
dismissed after the court belatedly realizes that one or more
claims have not been exhausted.2 See
post, at 186 (BREYER,
J., dissenting) (district courts on average take 268 days to
dismiss petitions on procedural grounds; 10% remain pending more
than 2 years). As a result, equitable considerations may make it
appropriate for federal courts to fill in a perceived omission on
the part of Congress by tolling AEDPA's statute of limitations for
unexhausted federal habeas petitions. Today's ruling does not
preclude that possibility, given the limited issue presented in
this case and the Court's correspondingly limited holding.3
I concur in the Court's holding on the understanding that it
does not foreclose either of the above safeguards against the
potential for injustice that a literal reading of § 2244(d)(2)
might otherwise produce.
866 (CA71996) (en bane), rev'd on other grounds,
521 U. S. 320 (1997);
Ford v.
Bowersox, 178 F.3d
522, 523
(CA8 1999);
Calderon v.
District
Court, 128 F.3d
1283, 1286-1287
(CA9 1997), overruled on other grounds,
163 F.3d
530, 539-540
(CA9 1998);
Hoggro v.
Boone,
150 F.3d
1223, 1225-1226 (CAlO 1998);
Wilcox v.
Florida Dept.
of Corrections, 158 F.3d
1209, 1211 (CAll 1998).
2 The question whether a claim has been exhausted can often be a
difficult one, not just for prisoners unschooled in the immense
complexities of federal habeas corpus law, see
post, at
190-191 (BREYER, J., dissenting), but also for district courts,
see,
e. g., Morgan v.
Bennett, 204
F.3d 360,
369-371 (CA2 2000) (disagreeing with District
Court's conclusion that claim had not been exhausted);
Bear
v.
Boone, 173 F.3d
782, 784-785 (CAlO 1999) (same).
3 Thus the court below, which resolved the case based on its
reading of 28 U. S. C. § 2244(d)(2) (1994 ed., Supp. V), and which
therefore did not reach the question whether it "should exercise
its equitable powers to exclude the [time] during which the first
[habeas] petition was pending,"
208 F.3d
357, 362
(CA2 2000), is free to consider the issue on
remand.
185
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
The federal habeas corpus statute limits the period of time
during which a state prisoner may file a federal habeas petition to
one year, ordinarily running from the time the prisoner's
conviction becomes final in the state courts. See 28 U. S. C. §
2244(d) (1994 ed., Supp. V). Section 2244(d)(2) tolls that i-year
period while "a properly filed application for State
post-conviction or other collateral review ... is pending." The
question before us is whether this tolling provision applies to
federal, as well as state, collateral review proceedings. Do the
words "other collateral review" encompass federal habeas corpus
proceedings? I believe that they do.
To understand my conclusion, one must understand why the legal
issue before us is significant. Why would a state prisoner ever
want federal habeas corpus proceedings to toll the federal habeas
corpus limitations period? After all, the very point of tolling is
to provide a state prisoner adequate time to file a federal habeas
petition. If the prisoner has already filed that petition, what
need is there for further tolling?
The answer to this question-and the problem that gives rise to
the issue before us-is that a federal court may be required to
dismiss a state prisoner's federal habeas petition, not on the
merits, but because that prisoner has not exhausted his state
collateral remedies for every claim presented in the federal
petition. See 28 U. S. C. § 2254(b)(1) (1994 ed., Supp. V)
(requiring petitioners to exhaust state remedies before filing
federal habeas petition); cf.
Rose v.
Lundy, 455 U. S. 509, 510 (1982)
(holding, under predecessor to current § 2254, that district courts
cannot reach the merits of "mixed" petitions containing both
exhausted and unexhausted claims). Such a dismissal means that a
prisoner wishing to pursue the claim must return to state
court,
186
pursue his state remedies, and then, if he loses, again file a
federal habeas petition in federal court. All this takes time. The
statute tolls the i-year limitations period during the time the
prisoner proceeds in the state courts. But unless the statute also
tolls the limitations period during the time the defective petition
was pending in federal court, the state prisoner may find, when he
seeks to return to federal court, that he has run out of time.
This possibility is not purely theoretical. A Justice Department
study indicates that 63% of all habeas petitions are dismissed, and
57% of those are dismissed for failure to exhaust state remedies.
See U. S. Dept. of Justice, Office of Justice Programs, Bureau of
Justice Statistics, Federal Habeas Corpus Review: Challenging State
Court Criminal Convictions 17 (1995) (hereinafter Federal Habeas
Corpus Review). And it can take courts a significant amount of time
to dispose of even those petitions that are not addressed on the
merits; on the average, district courts took 268 days to dismiss
petitions on procedural grounds.
Id., at 23-24; see also
id., at 19 (of all habeas petitions, nearly half were pending in
the district court for six months or longer; 10% were pending more
than two years). Thus, if the words "other collateral review" do
not include federal collateral review, a large group of federal
habeas petitioners, seeking to return to federal court after
subsequent state-court rejection of an unexhausted claim, may find
their claims time barred. Moreover, because district courts vary
substantially in the time they take to rule on habeas petitions,
two identically situated prisoners can receive opposite results. If
Prisoner A and Prisoner B file mixed petitions in different
district courts six months before the federal limitations period
expires, and the court takes three months to dismiss Prisoner A's
petition, but seven months to dismiss Prisoner
B's petition,
Prisoner
A will be able to return to federal court after
exhausting state remedies, but Prisoner B-due to no fault of his
own-may not.
187
On the other hand, if the words "other collateral review"
include federal collateral review, state prisoners whose federal
claims have been dismissed for nonexhaustion will simply add to the
i-year limitations period the time they previously spent in both
state and federal proceedings. Other things being equal, they will
be able to return to federal court after pursuing the state
remedies that remain available. And similarly situated prisoners
will not suffer different outcomes simply because they file their
petitions in different district courts.
The statute's language, read by itself, does not tell us whether
the words "State post-conviction or other collateral review"
include federal habeas proceedings. Rather, it is simply unclear
whether Congress intended the word "State" to modify
"post-conviction" review alone, or also to modify "other collateral
review" (as the majority believes). Indeed, most naturally read,
the statute refers to two distinct kinds of applications: (1)
applications for "State postconviction" review and (2) applications
for "other collateral review," a broad category that, on its face,
would include applications for federal habeas review. The
majority's reading requires either an unusual intonation-"State
postconviction-or-other-collateral
review"-or a slight
rewrite of the language, by inserting the word "State" where it
does not appear, between "other" and "collateral." Regardless, I
believe that either reading is possible. The statute's words, by
themselves, have no singular "plain meaning."
Neither do I believe that the various interpretive canons to
which the majority appeals can solve the problem. Invoking the
principle that "'Congress acts intentionally and purposely in the
disparate inclusion or exclusion' " of particular words,
Bates v.
United States, 522 U. S. 23, 29-30 (1997)
(quoting
Russello v.
United States, 464 U. S. 16, 23 (1983)),
the majority attempts to ascertain Congress' intent by looking to
the tolling provision's statutory neighbors. It points to other
provisions where Congress explicitly used the
188
words "State" and "Federal" together, expressing its intent to
cover both kinds of proceedings. See
ante, at 172-173
(citing 28 U. S. C. § 2254(i) (1994 ed., Supp. V); § 2261(e); §
2264(a)(3)). And it reasons that Congress' failure to do so here
displays a different intent.
But other statutory neighbors show that, when Congress wished
unambiguously to limit tolling to state proceedings, "it knew how
to do so."
Custis v.
United States, 511 U. S. 485, 492
(1994). In the special tolling provision governing certain capital
cases, Congress said explicitly that the limitations period is
tolled "from the date on which the first petition for
post-conviction review or other collateral relief is filed
until
the final State court disposition of such petition," thus
making it clear that federal proceedings, for example, petitions
for certiorari, do not count. 28 U. S. C. § 2263(b)(2) (1994 ed.,
Supp. V) (emphasis added). Does Congress' failure to include a
similar qualification in § 2244's tolling provision show that it
means that provision to cover both federal and state proceedings?
In fact, the "argument from neighbors" shows only that Congress
might have spoken more clearly than it did. It cannot prove the
statutory point.
The majority also believes that only its interpretation gives
effect to every word in the statute-in particular the word "State."
It asks: If Congress meant to cover federal habeas review, why does
the word "State" appear in the statute? Federal habeas proceedings
are a form of postconviction proceedings. So, had Congress meant to
cover them, it would have just said "post-conviction and other
collateral review." See
ante, at 174.
But this argument proves too much, for one can ask with equal
force: If Congress intended to exclude federal habeas proceedings,
why does the word "post-conviction" appear in the statute? State
postconviction proceedings are a form of collateral review. So, had
Congress meant to exclude federal collateral proceedings, it could
have just said "State col-
189
lateral review," thereby clearly indicating that the phrase
applies only to state proceedings.
In fact, this kind of argument, viewed realistically, gets us
nowhere. Congress probably picked out "State postconviction"
proceedings from the universe of collateral proceedings and
mentioned it separately because state postconviction proceedings
are a salient example of collateral proceedings. But to understand
this is not to understand whether the universe from which Congress
picked "State post-conviction" proceedings as an example is the
universe of
all collateral proceedings, or the universe of
state collateral proceedings. The statute simply does not
say.
Indeed, the majority recognizes that neither the statute's
language nor the application of canons of construction is
sufficient to resolve the problem. It concedes that the phrase
"other collateral review," if construed as "other [state]
collateral review," would add little to the coverage that the words
"State post-conviction ... review" would provide in its absence.
See
ante, at 176 (noting that a state criminal conviction is
"by far the most common" basis for seeking federal habeas review).
The majority resolves this difficulty by noting that "other
collateral review" could also include either review of state civil
confinement proceedings or state postconviction review to which a
State refers by some other name, such as state "habeas"
proceedings. See
ante, at 176-177.
But it is difficult to believe that Congress had state civil
proceedings in mind, given that other provisions within § 2244
indicate that Congress saw criminal proceedings as its basic
subject matter. For instance, the exceptions to the bar against
successive petitions in § 2244(d) seem to presume that the petition
at issue challenges a criminal conviction. See 28 U. S. C. §
2244(b)(2)(A) (1994 ed., Supp. V) (requiring a "new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court"); § 2244(b)(2)(B) (requiring new evidence
establishing that,
190
"but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense"). Nor
does it seem likely that Congress would have expected federal
courts applying the tolling provision to construe "post-conviction"
review to exclude state "habeas" petitions challenging convictions.
The statute in which the words "State post-conviction proceedings"
appear is a
federal statute, and federal courts would be
likely to apply those words to whatever state proceedings in fact
fall within this federal description, whatever different labels
different States might choose to attach. It is simpler, more
meaningful, and just as logical to assume that Congress meant the
words "other collateral review" to cast a wider net-a net wide
enough to include federal collateral proceedings such as those that
precede a dismissal for nonexhaustion.
Faced with this statutory ambiguity, I would look to statutory
purposes in order to reach a proper interpretation. And, while I
agree that Congress sought to "'further the principles of comity,
finality, and federalism,'"
ante, at 178 (quoting
Williams v.
Taylor, 529 U. S. 420, 436
(2000)), I would also ask whether Congress would have intended to
create the kind of "unexhausted petition" problem that I described
at the outset. The answer is no. Congress enacted a statute that
all agree gave state prisoners a full year (plus the duration of
state collateral proceedings) to file a federal habeas corpus
petition. Congress would not have intended to shorten that time
dramatically, at random, and perhaps erase it altogether,
"den[ying] the petitioner the protections of the Great Writ
entirely,"
Lonchar v.
Thomas, 517 U. S. 314, 324
(1996), simply because the technical nature of the habeas rules led
a prisoner initially to file a petition in the wrong court.
The majority's argument assumes a congressional desire to
strengthen the prisoners' incentive to file in state court first.
But that is not likely to be the result of to day's holding. After
all, virtually every state prisoner already
191
knows that he must first exhaust state-court remedies; and I
imagine that virtually all of them now try to do so. The problem
arises because the vast majority of federal habeas petitions are
brought without legal representation. See Federal Habeas Corpus
Review 14 (finding that 93% of habeas petitioners in study were
pro se). Prisoners acting
pro se will often not know
whether a change in wording between state and federal petitions
will be seen in federal court as a new claim or a better way of
stating an old one; and they often will not understand whether new
facts brought forward in the federal petition reflect a new claim
or better support for an old one. Insofar as that is so, the
Court's approach is likely to lead not to fewer improper federal
petitions, but to increased confusion, as prisoners hesitate to
change the language of state petitions or add facts, and to greater
unfairness. And it will undercut one significant purpose of the
provision before us-to grant state prisoners a fair and reasonable
time to bring a first federal habeas corpus petition.
Nor is it likely that prisoners will deliberately seek to delay
by repeatedly filing unexhausted petitions in federal court, as the
Court suggests. See
ante, at 180. First, prisoners not under
a sentence of death (the vast majority of habeas petitioners) have
no incentive to delay adjudication of their claims. Rather, "[t]he
prisoner's principal interest ... is in obtaining speedy federal
relief."
Rose v.
Lundy, 455 U. S., at 520. Second,
the prisoner who chooses to go into federal court with unexhausted
claims runs the risk that the district court will simply deny those
claims on the merits, as it is permitted to do, see 28 U. S. C. §
2254(b)(2) (1994 ed., Supp. V), before the prisoner has had the
opportunity to develop a record in state court. Third, district
courts have the power to prevent vexatious repeated filings by, for
instance, ordering that a petition filed after a mixed petition is
dismissed must contain only exhausted claims. See
Slack v.
McDaniel, 529
U. S. 473, 489 (2000). Thus,
192
the interest in reducing "piecemeal litigation,"
ante, at
180, is not likely to be significantly furthered by the majority's
holding.
Finally, the majority's construction of the statute will not
necessarily promote comity. Federal courts, understanding that
dismissal for nonexhaustion may mean the loss of any opportunity
for federal habeas review, may tend to read ambiguous earlier
state-court proceedings as having adequately exhausted a federal
petition's current claims. For similar reasons, wherever possible,
they may reach the merits of a federal petition's claims without
sending the petitioner back to state court for exhaustion. To that
extent, the majority's interpretation will result in a lesser, not
a greater, respect for the state interests to which the majority
refers. In addition, by creating pressure to expedite consideration
of habeas petitions and to reach the merits of arguably exhausted
claims, it will impose a heavier burden on the district courts.
(While JUSTICE STEVENS' sound suggestions that district courts hold
mixed petitions in abeyance and employ equitable tolling, see
ante, at 182-184 (opinion concurring in part and concurring
in judgment), would properly ameliorate some of the unfairness of
the majority's interpretation, they will also add to the burdens on
the district courts in a way that simple tolling for federal habeas
petitions would not.)
In two recent cases, we have assumed that Congress did not want
to deprive state prisoners of first federal habeas corpus review,
and we have interpreted statutory ambiguities accordingly. In
Stewart v.
Martinez-Villareal, 523 U. S. 637 (1998),
we held that a federal habeas petition filed after the initial
filing was dismissed as premature should not be deemed a "second or
successive" petition barred by § 2244, lest "dismissal ... for
technical procedural reasons ... bar the prisoner from ever
obtaining federal habeas review."
Id., at 645. And in
Slack v.
McDaniel, we held that a federal habeas
petition filed after dismissal of an initial filing for
nonexhaustion should not be deemed a "second
193
or successive petition," lest "the complete exhaustion rule"
become a "'trap'" for" 'the unwary
pro se prisoner.'" 529 U.
S., at 487 (quoting
Rose, supra, at 520). Making the same
assumption here, I would interpret the ambiguous provision before
us to permit tolling for federal habeas petitions.
In both
Martinez-Villareal and
Slack, the Court
discerned the purpose of an ambiguous statutory provision by
assuming that (absent a contrary indication) congressional purpose
would mirror that of most reasonable human beings knowledgeable
about the area of the law in question. And the Court kept those
purposes firmly and foremost in mind as it sought to understand the
statute. See
Slack, supra, at 486-487;
Martinez-Villareal, supra, at 644 (refusing to adopt an
interpretation whose "implications for habeas practice would be far
reaching and seemingly perverse"). Today it takes a different
approach-an approach that looks primarily, though not exclusively,
to linguistic canons to dispel the uncertainties caused by
ambiguity. Where statutory language is ambiguous, I believe these
priorities are misplaced. Language, dictionaries, and canons,
unilluminated by purpose, can lead courts into blind alleys,
producing rigid interpretations that can harm those whom the
statute affects. If generalized, the approach, bit by bit, will
divorce law from the needs, lives, and values of those whom it is
meant to serve-a most unfortunate result for a people who live
their lives by law's light. The Court was right in
Martinez-Villareal and
Slack to see purpose as key to
the statute's meaning and to understand Congress as intending the
same; it is wrong to reverse its interpretive priorities here.
With respect, I dissent.
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