OCTOBER TERM, 1996
Syllabus
LINDH
v. MURPHY, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 96-6298. Argued April 14, 1997-Decided June 23,1997
Wisconsin tried petitioner Lindh on noncapital murder and
attempted murder charges. In response to his insanity defense, the
State called a psychiatrist who had examined Lindh but who had come
under criminal investigation for sexual exploitation of patients
before the trial began. Lindh's attempt to question the doctor
about that investigation in hopes of showing the doctor's interest
in currying favor with the State was barred by the trial court, and
Lindh was convicted. He was denied relief on his direct appeal, in
which he claimed a violation of the Confrontation Clause. He raised
that claim again in a federal habeas corpus application, which was
denied, and he promptly appealed. Shortly after oral argument
before the Seventh Circuit, the Antiterrorism and Effective Death
Penalty Act of 1996 (Act) amended the federal habeas statute.
Following an en banc rehearing to consider the Act's impact, the
court held that the amendments to chapter 153 of Title 28, which
governs all habeas proceedings, generally apply to cases pending on
the date of enactment; that applying the new version of 28 U. S. C.
§ 2254(d)-which governs standards affecting entitlement to
relief-to pending cases would not have a retroactive effect barring
its application under
Landgraf v.
USI Film Products,
511 U. S. 244,
because it would not attach new legal consequences to events
preceding enactment; and that the statute applied to Lindh's
case.
Held: Since the new provisions of chapter 153 generally
apply only to cases filed after the Act became effective, they do
not apply to pending noncapital cases such as Lindh's. Pp.
324-337.
(a) Wisconsin errs in arguing that whenever a new statute on its
face could apply to the litigation of events preceding enactment,
there are only two alternative sources of rules to determine its
ultimate temporal reach: either Congress's express command or
application of the
Landgraf default rule governing
retroactivity. Normal rules of construction apply in determining a
statute's temporal reach generally and whether a statute's terms
would produce a retroactive effect. Although
Landgraf's rule
would deny application when a retroactive effect would otherwise
result, other construction rules may apply to remove even the
possibility of retroactivity (as by rendering the statutory
provision
321
wholly inapplicable to a particular case), as Lindh argues the
recognition of a negative implication would do here. Pp.
324-326.
(b) The statute reveals Congress's general intent to apply the
chapter 153 amendments only to cases filed after its enactment. The
Act revised chapter 153 for all habeas proceedings. Then § 107 of
the Act created an entirely new chapter 154 for habeas proceedings
in capital cases, with special rules favorable to those States that
meet certain conditions. Section 107(c) expressly applies chapter
154 to pending cases. The negative implication is that the chapter
153 amendments were meant to apply only to cases filed after
enactment. If Congress was reasonably concerned to ensure that
chapter 154 applied to pending cases, only a different intent
explains the fact that it did not enact a similar provision for
chapter 153. Had the chapters evolved separately and been joined
together at the last minute, after chapter 154 had acquired its
mandate, there might have been a possibility that Congress intended
the same rule for each chapter, but was careless in the
roughand-tumble. But those are not the circumstances here: § 107(c)
was added after the chapters were introduced as a single bill.
Section 107(c)'s insertion thus illustrates the familiar rule that
negative implications raised by disparate provisions are strongest
when the portions of a statute treated differently had already been
joined together and were being considered simultaneously when the
language raising the implication was inserted. See
Field v.
Mans, 516 U. S.
59. Respondent's one competing explanation-that § 107(c) was
intended to fix an ambiguity over when a State would qualify for
chapter 154's favorable rules-is too remote to displace the
straightforward inference that chapter 153 was not meant to apply
to pending cases. Finally, while new § 2264(b)-which was enacted
within chapter 154 and provides that new §§2254(d) and (e) in
chapter 153 would apply to pending chapter 154 cases-does not speak
to the present issue with flawless clarity, it tends to confirm the
interpretation of § 107(c) adopted here. It shows that Congress
assumed that in the absence of § 2264(b), new §§ 2254(d) and (e)
would not apply to pending cases. Pp.326-337.
96 F.3d
856, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which SCALIA, KENNEDY, and
THOMAS, JJ., joined,
post, p. 337.
James S.
Liebman argued the cause for petitioner.
With him on the briefs were
Richard C.
Neuhoff and
Keith A. Findley.
322
Sally L. Wellman, Assistant Attorney General of
Wisconsin, argued the cause for respondent. With her on the brief
was
James E. Doyle, Attorney General. *
JUSTICE SOUTER delivered the opinion of the Court.
The Antiterrorism and Effective Death Penalty Act of 1996, 110
Stat. 1214, signed into law on April 24, 1996, enacted the present
28 U. S. C. § 2254(d) (1994 ed., Supp. II). The issue in this case
is whether that new section of the statute dealing with petitions
for habeas corpus governs
*
Judy Clarke and
Lisa Kemler filed a brief for
the National Association of Criminal Defense Lawyers as
amicus
curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio,
Jeffrey S.
Sutton, State Solicitor,
and
Simon B. Karas and
Jon C.
Walden,
Assistant Attorneys General,
Christine O.
Gregoire,
Attorney General of Washington, and
Paul D. Weisser and
John J.
Samson, Assistant Attorneys General,
John
M. Bailey, Chief States Attorney of Connecticut, and
Gus
F.
Diaz, Acting Attorney General of Guam, joined by the
Attorneys General for their respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Grant Woods of Arizona,
Winston Bryant of Arkansas,
Daniel E. Lungren of California,
Gale A. Norton of
Colorado,
M. Jane Brady of Delaware,
Robert
Butterworth of Florida,
Michael J.
Bowers of
Georgia,
Margery S.
Bronster of Hawaii,
Alan
G.
Lance of Idaho,
James E. Ryan of Illinois,
Jeffrey A. Modisett of Indiana,
Carla J.
Stovall of Kansas,
A. B. Chandler III of Kentucky,
Richard P. Ieyoub of Louisiana,
Scott Harshbarger of
Massachusetts,
Frank J.
Kelley of Michigan,
Hubert
Humphrey III of Minnesota,
Mike Moore of Mississippi,
Jeremiah W Nixon of Missouri,
Joseph P. Mazurek of
Montana,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Peter Verniero of New Jersey,
Dennis C.
Vacco of New York,
Michael F.
Easley of North Carolina,
Heidi Heitkamp of North
Dakota,
Drew Edmondson of Oklahoma,
D. Michael Fisher
of Pennsylvania,
Jeffrey B. Pine of Rhode Island,
Charles
M. Condon of South Carolina,
Mark Barnett of South
Dakota,
John Knox Walkup of Tennessee,
Jan Graham of
Utah,
James B. Gilmore III of Virginia,
Julio A.
Brady of the Virgin Islands, and
William U. Hill of
Wyoming; for the Criminal Justice Legal Foundation by
Kent
S.
Scheidegger; and for the Washington Legal Foundation by
Daniel J.
Popeo, Paul D. Kamenar, and
Ronald D.
Maines.
323
applications in noncapital cases that were already pending when
the Act was passed. We hold that it does not.
I
Wisconsin tried Aaron Lindh on multiple charges of murder and
attempted murder. In response to his insanity defense, the State
called a psychiatrist who had spoken with Lindh immediately after
the killings but had later, and before Lindh's trial, come under
criminal investigation by the State for sexual exploitation of some
of his patients. Although, at trial, Lindh tried to ask the
psychiatrist about that investigation, hoping to suggest the
witness's interest in currying favor with the State, the trial
court barred the questioning. Lindh was convicted.
On direct appeal, Lindh claimed a violation of the Confrontation
Clause of the National Constitution, but despite the denial of
relief, Lindh sought neither review in this Court nor state
collateral review. Instead, on July 9, 1992, he filed a habeas
corpus application in the United States District Court, in which he
again argued his Confrontation Clause claim. When relief was denied
in October 1995, Lindh promptly appealed to the Seventh Circuit.
Shortly after oral argument there, however, the federal habeas
statute was amended, and the Seventh Circuit ordered Lindh's case
be reheard en banc to see whether the new statute applied to Lindh
and, if so, how his case should be treated.
The Court of Appeals held that the Act's amendments to chapter
153 of Title 28 generally did apply to cases pending on the date of
enactment.
96 F.3d
856, 863 (1996). Since the court did not read the statute as
itself answering the questions whether or how the newly amended
version of § 2254(d) would apply to pending applications like
Lindh's, id., at 861-863, it turned to this Court's recent decision
in
Landgraf v.
USI Film Products, 511 U. S. 244 (1994).
Landgrafheld that, where a statute did not clearly mandate
an application with retroactive effect, a court had to deter-
324
mine whether applying it as its terms ostensibly indicated would
have genuinely retroactive effect; if so, the judicial presumption
against retroactivity would bar its application. The Seventh
Circuit concluded that applying the new § 2254(d) to cases already
pending would not have genuinely retroactive effect because it
would not attach "new legal consequences" to events preceding
enactment, and the court held the statute applicable to Lindh's
case. 96 F. 3d, at 863867 (citing
Landgraf, supra, at 270).
On the authority of the new statute, the court then denied relief
on the merits. 96
The Seventh Circuit's decision that the new version of § 2254(d)
applies to pending, chapter 153 cases conflicts with the holdings
of
Edens v.
Hannigan, 87 F.3d
1109, 1112, n. 1 (CAlO 1996),
Boria v.
Keane,
90 F.3d
36, 37-38 (CA2 1996)
(per curiam), and
Jeffries
v.
Wood, 114 F.3d
1484 (CA9 1997). In accord with the Seventh Circuit is the §
2253(c) case of
Hunter v.
United States, 101 F.3d
1565, 1568-1573 (CAll 1996) (en bane) (relying on
Lindh
to hold certain amendments to chapter 153 applicable to pending
cases). We granted certiorari limited to the question whether the
new § 2254(d) applies to Lindh's case, 519 U. S. 1074 (1996), and
we now reverse.
II
Before getting to the statute itself, we have to address
Wisconsin's argument that whenever a new statute on its face could
apply to the litigation of events that occurred before it was
enacted, there are only two alternative sources of rules to
determine its ultimate temporal reach: either an "express command"
from Congress or application of our
Landgraf default rule.
In
Landgraf, we said:
"When a case implicates a federal statute enacted after the
events in suit, the court's first task is to determine whether
Congress has expressly prescribed the statute's proper reach. If
Congress has done so, of course, there is no need to resort to
judicial default
325
rules. When, however, the statute contains no such express
command, the court must determine whether the new statute would
have retroactive effect .... If the statute would operate
retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a result."
Landgraf, supra, at 280.
Wisconsin insists that this language means that, in the absence
of an express command regarding temporal reach, this Court must
determine that temporal reach for itself by applying its judicial
default rule governing retroactivity, to the exclusion of all other
standards of statutory interpretation. Brief for Respondent 9-14;
see also
Hunter v.
United States, supra, at 1569
(suggesting that
Landgraf may have announced a general
clear-statement rule regarding the temporal reach of statutes).
Wisconsin's reading, however, ignores context. The language
quoted disposed of the question whether the practice of applying
the law as it stands at the time of decision represented a retreat
from the occasionally conflicting position that retroactivity in
the application of new statutes is disfavored. The answer given was
no, and the presumption against retroactivity was reaffirmed in the
traditional rule requiring retroactive application to be supported
by a clear statement.
Landgraf thus referred to "express
command[s]," "unambiguous directive[s]," and the like where it
sought to reaffirm that clear-statement rule, but only there. See
Landgrafv. USI Film Products, 511 U. S., at 263
("[U]nambiguous directive" is necessary to authorize "retroactive
application"); id., at 264 (statutes "will not be construed to have
retroactive effect unless their language requires this result"
(internal quotation marks and citation omitted)); id., at 272-273
("Requiring clear intent assures that Congress itself has
affirmatively considered the potential unfairness of retroactive
application"); id., at 286 (finding "no clear evidence of
congressional intent" to rebut the "presumption
326
against statutory retroactivity"); id., at 286 (SCALIA, J.,
concurring in judgment) (agreeing that "a legislative enactment
affecting substantive rights does not apply retroactively absent
clear statement to the contrary").
In determining whether a statute's terms would produce a
retroactive effect, however, and in determining a statute's
temporal reach generally, our normal rules of construction apply.
Although
Landgrafs default rule would deny application when
a retroactive effect would otherwise result, other construction
rules may apply to remove even the possibility of retroactivity (as
by rendering the statutory provision wholly inapplicable to a
particular case), as Lindh argues the recognition of a negative
implication would do here. In sum, if the application of a term
would be retroactive as to Lindh, the term will not be applied,
even if, in the absence of retroactive effect, we might find the
term applicable; if it would be prospective, the particular degree
of prospectivity intended in the Act will be identified in the
normal course in order to determine whether the term does apply to
Lindh.
III
The statute reveals Congress's intent to apply the amendments to
chapter 153 only to such cases as were filed after the statute's
enactment (except where chapter 154 otherwise makes select
provisions of chapter 153 applicable to pending cases). Title I of
the Act stands more or less independent of the Act's other titles 1
in providing for the revision of federal habeas practice and does
two main things. First, in §§ 101-106, it amends § 2244 and §§
2253-2255 of chapter 153 of Title 28 of the United States Code,
governing all habeas corpus proceedings in the federal courts.2 110
Stat. 1217-
1 The other titles address such issues as restitution to victims
of crime (Title II), various aspects of international terrorism
(Titles II, III, IV, VII, VIII), restrictions on various kinds of
weapons and explosives (Titles V and VI), and miscellaneous items
(Title IX). See 110 Stat. 1214-1217.
2 Section 103 also amends Rule 22 of the Federal Rules of
Appellate Procedure. 110 Stat. 1218.
327
1221. Then, for habeas proceedings against a State in capital
cases, § 107 creates an entirely new chapter 154 with special rules
favorable to the state party, but applicable only if the State
meets certain conditions, including provision for appointment of
postconviction counsel in state proceedings.3 110 Stat. 1221-1226.
In § 107(c), the Act provides that "Chapter 154 ... shall apply to
cases pending on or after the date of enactment of this Act." 110
Stat. 1226.
We read this provision of § 107(c), expressly applying chapter
154 to all cases pending at enactment, as indicating implicitly
that the amendments to chapter 153 were assumed and meant to apply
to the general run of habeas cases only when those cases had been
filed after the date of the Act. The significance of this provision
for application to pending cases becomes apparent when one realizes
that when chapter 154 is applicable, it will have substantive as
well as purely procedural effects. If chapter 154 were merely
procedural in a strict sense (say, setting deadlines for filing and
disposition, see 28 U. S. C. §§ 2263, 2266 (1994 ed., Supp. II);
110 Stat. 1223, 1224-1226), the natural expectation would be that
it would apply to pending cases.
Landgraf, supra, at 275
(noting that procedural changes "may often be applied in suits
arising before their enactment without raising concerns about
retroactivity"). But chapter 154 does more, for in its revisions of
prior law to change standards of proof and persuasion in a way
favorable to a State, the statute goes beyond "mere" procedure to
affect substantive entitlement to relief. See 28 U. S. C. § 2264(b)
(1994 ed., Supp. II); 110 Stat. 1223 (incorporating revised legal
standard of new § 2254(d)).
Landgraf did not speak to the
rules for determining the temporal reach of such a statute (having
no need to do so). While the statute might not have a true
retroactive effect, neither was it clearly "procedural" so as to
fall within the
3 Section 108 further adds a "technical amendment" regarding
expert and investigative fees for the defense under 21 U. S. C. §
848(q). 110 Stat. 1226.
328
Court's express (albeit qualified) approval of applying such
statutes to pending cases. Since
Landgraf was the Court's
latest word on the subject when the Act was passed, Congress could
have taken the opinion's cautious statement about procedural
statutes and its silence about the kind of provision exemplified by
the new § 2254(d) as counseling the wisdom of being explicit if it
wanted such a provision to be applied to cases already pending.
While the terms of § l07(c) may not amount to the clear statement
required for a mandate to apply a statute in the disfavored
retroactive way,4 they do serve to make it clear as a general
matter that
4 In
United States v.
Nordic Village, Inc.,
503 U. S. 30,
34-37 (1992), this Court held that the existence of "plausible"
alternative interpretations of statutory language meant that that
language could not qualify as an "unambiguous" expression of a
waiver of sovereign immunity. And cases where this Court has found
truly "retroactive" effect adequately authorized by a statute have
involved statutory language that was so clear that it could sustain
only one interpretation. See
Graham &
Foster v.
Goodcell, 282
U. S. 409, 416-420 (1931) (holding that a statutory provision
"was manifestly intended to operate retroactively according to its
terms" where the tax statute spelled out meticulously the
circumstances that defined the claims to which it applied and where
the alternative interpretation was absurd);
Automobile Club of
Mich. v.
Commissioner, 353 U. S. 180, 184 (1957)
(finding a clear statement authorizing the Commissioner of Internal
Revenue to correct tax rulings and regulations "retroactively"
where the statutory authorization for the Commissioner's action
spoke explicitly in terms of "retroactivity");
United States
v.
Zacks, 375
U. S. 59, 65-67 (1963) (declining to give retroactive effect to
a new substantive tax provision by reopening claims otherwise
barred by statute of limitations and observing that Congress had
provided for just this sort of retroactivity for other substantive
provisions by explicitly creating new grace periods in which
otherwise barred claims could be brought under the new substantive
law). Cf.
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 55-57 (1996)
(finding a clear statement of congressional abrogation of Eleventh
Amendment immunity where the federal statute went beyond granting
federal jurisdiction to hear a claim and explicitly contemplated
"the State" as defendant in federal court in numerous provisions of
the Act).
Landgraf suggested that the following language from an
unenacted precursor of the statute at issue in that case might
possibly have qualified as a clear statement for retroactive
effect: "[This Act] shall apply to
all
329
chapter 154 applies to pending cases when its terms fit those
cases at the particular procedural points they have reached. (As to
that, of course, there may well be difficult issues, and it may be
that application of
Landgrafs default rule will be necessary
to settle some of them.)
The next point that is significant for our purposes is that
everything we have just observed about chapter 154 is true of
changes made to chapter 153. As we have already noted, amended §
2254(d) (in chapter 153 but applicable to chapter 154 cases)
governs standards affecting entitlement to relief. If, then,
Congress was reasonably concerned to ensure that chapter 154 be
applied to pending cases, it should have been just as concerned
about chapter 153, unless it had the different intent that the
latter chapter not be applied to the general run of pending
cases.
Nothing, indeed, but a different intent explains the different
treatment. This might not be so if, for example, the two chapters
had evolved separately in the congressional process, only to be
passed together at the last minute, after chapter 154 had already
acquired the mandate to apply it to pending cases. Under those
circumstances, there might have been a real possibility that
Congress would have intended the same rule of application for each
chapter, but in the rough-andtumble no one had thought of being
careful about chapter 153, whereas someone else happened to think
of inserting a
proceedings pending on or commenced after the date of enactment
of this Act." 511 U. S., at 260 (emphasis added; internal quotation
marks omitted). But, even if that language did qualify, its use of
the sort of absolute language absent from § 107(c) distinguishes
it. Cf.
United States v.
Williams, 514 U. S. 527, 531-532
(1995) (finding a waiver of sovereign immunity "unequivocally
expressed" in language granting jurisdiction to the courts over
"[ainy civil action against the United States for the
recovery of
any internal-revenue tax alleged to have been
erroneously or illegally assessed or
collected"
(emphasis in
Williams; internal quotation marks omitted));
id., at 541 (SCALIA, J., concurring) ("The [clear-statement] rule
does not ... ... require explicit waivers to be given a meaning
that is implausible ... ").
330
prOVISIOn in chapter 154. But those are not the circumstances
here. Although chapters 153 and 154 may have begun life
independently and in different Houses of Congress,5 it was only
after they had been joined together and introduced as a single bill
in the Senate (S. 735) that what is now § 107(c) was added.6 Both
chapters, therefore, had to have been in mind when § 107(c) was
added. Nor was there anything in chapter 154 prior to the addition
that made the intent to apply it to pending cases less likely than
a similar intent to apply chapter 153. If anything, the contrary is
true, as the discussion of § 2264(b) will indicate.
The insertion of § 107(c) with its different treatments of the
two chapters thus illustrates the familiar rule that negative
implications raised by disparate provisions are strongest when the
portions of a statute treated differently had already been joined
together and were being considered simultaneously when the language
raising the implication was inserted. See
Field v.
Mans, 516 U. S.
59, 75 (1995) ("The more apparently deliberate the contrast,
the stronger the inference, as applied, for example, to contrasting
statutory sections originally enacted simultaneously in relevant
respects ... "). When § 107(c) was added, that is, a thoughtful
Member of the Congress was most likely to have intended just what
the later reader sees by inference.
The strength of the implication is not diminished by the one
competing explanation suggested, see Brief for Respondent 11-12,
which goes as follows. Chapter 154 provides for expedited filing
and adjudication of habeas
5 See
96 F.3d
856, 861 (CA7 1996). Lindh concedes this much. Brief for
Petitioner 23, n. 15.
6 Amendment 1199, offered by Senator Dole on May 25, 1995, added
what was then § 607(c) and now is § 107(c). See 141 Congo Rec.
14600, 14614 (1995). A comparison of S. 735 as it stood on May 1,
1995, and S. 735 as it passed the Senate on June 7, after the
substitution of Amendment 1199, reveals that the part of the bill
dealing with habeas corpus reform was substantially the same before
and after the amendment in all ways relevant to our interpretation
of § 107(c).
331
applications in capital cases when a State has met certain
conditions. In general terms, applications will be expedited (for a
State's benefit) when a State has made adequate provision for
counsel to represent indigent habeas applicants at the State's
expense. Thus, § 2261(b) provides that "[t]his chapter is
applicable if a State establishes ... a mechanism for the
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in State postconviction proceedings
brought by indigent prisoners .... " 110 Stat. 1221-1222. There is
an ambiguity in the provision just quoted, the argument runs, for
it applies chapter 154 to capital cases only where "a State
establishes ... a mechanism," leaving a question whether the
chapter would apply if a State had already established such a
mechanism before chapter 154 was passed. The idea is that the
present tense of the word "establishes" might be read to rule out a
State that already had "established" a mechanism, suggesting that
when § 107(c) was added to provide that the chapter would apply to
"cases pending" it was meant to eliminate the ambiguity by showing
that all pending cases would be treated alike.
This explanation of the significance of § 107(c) is not,
however, very plausible. First, one has to strain to find the
ambiguity on which the alternative explanation is supposed to rest.
Why would a Congress intent on expediting capital habeas cases have
wanted to disfavor a State that already had done its part to
promote sound resolution of prisoners' petitions in just the way
Congress sought to encourage? It would make no sense to leave such
States on the slower track, and it seems unlikely that federal
courts would so have interpreted § 2261(b). Second, anyone who had
seen such ambiguity lurking could have dispatched it in a far
simpler and straightforward fashion than enacting § 107(c); all the
drafter would have needed to do was to insert three words into §
2261(b), to make it refer to a State that "establishes or has
established ... a mechanism." It simply is not plausible
332
that anyone so sensitive as to find the unlikely ambiguity would
be so delphic as to choose § 107(c) to fix it. Indeed, § 107(c)
would (on the ambiguity hypothesis) be at least as uncertain as the
language it was supposed to clarify, since "cases pending" could be
read to refer to cases pending in States that set up their
mechanisms only after the effective date of the Act. The hypothesis
of fixing ambiguity, then, is too remote to displace the
straightforward inference that chapter 153 was not meant to apply
to pending cases.
Finally, we should speak to the significance of the new §
2264(b), which Lindh cites as confirming his reading of § 107(c) of
the Act. While § 2264(b) does not speak to the present issue with
flawless clarity, we agree with Lindh that it tends to confirm the
interpretation of § 107(c) that we adopt. Section 2264(b) is a part
of the new chapter 154 and provides that "[f]ollowing review
subject to subsections (a), (d), and (e) of § 2254, the court shall
rule on the claims [subject to expedited consideration] before it."
110 Stat. 1223. As we have said before, § 2254 is part of chapter
153 applying to habeas cases generally, including cases under
chapter 154. Its subsection (a) existed before the Act, simply
providing for a habeas remedy for those held in violation of
federal law. Although § 2254 previously had subsections lettered
(d) and (e) (dealing with a presumption of correctness to be
accorded state-court factual findings and the production of
state-court records when evidentiary sufficiency is challenged,
respectively) the Act eliminated the old (d) and relettered the old
(e) as (f); in place of the old (d), it inserted a new (d) followed
by a new (e), the two of them dealing with, among other things, the
adequacy of state factual determinations as bearing on a right to
federal relief, and the presumption of correctness to be given such
state determinations. 110 Stat. 1219. It is to these new provisions
(d) and (e), then, that § 2264(b) refers when it provides that
chapter 154 determinations shall be made subject to them.
333
Leaving aside the reference to § 2254(a) for a moment, why would
Congress have provided specifically in § 2264(b) that chapter 154
determinations shall be made subject to §§ 2254(d) and (e), given
the fact that the latter are part of chapter 153 and thus
independently apply to habeas generally? One argument is that the
answer lies in § 2264(a), which (in expedited capital cases)
specially provides an exhaustion requirement (subject to three
exceptions), restricting federal habeas claims to those "raised and
decided on the merits in the State courts .... " 110 Stat. 1223.
See 96 F. 3d, at 862-863. The argument assumes (and we will assume
for the sake of the argument) that in expedited capital cases, this
provision of § 2264(a) supersedes the requirements for exhaustion
of state remedies imposed as a general matter by §§2254(b) and
(C).7 The argument then goes
7 There are reasons why the position that § 2264(a) replaces
rather than complements §§ 2254(b) and (c) is open to doubt: Lindh
argues with some force that to read § 2264(a) as replacing the
exhaustion requirement of §§ 2254(b) and (c) would mean that in
important classes of cases (those in the categories of three §
2264(a) exceptions), the State would not be able to insist on
exhaustion in the state courts. In cases raising claims of newly
discovered evidence, for example, the consequence could be that the
State could not prevent the prisoner from going directly to federal
court and evading § 2254(e)'s presumption of correctness of
state-court factual findings as well as § 2254(d)'s new, highly
deferential standard for evaluating state-court rulings. It is true
that a State might be perfectly content with the prisoner's choice
to go straight to federal court in some cases, but the State has
been free to waive exhaustion to get that result. The State has not
explained why Congress would have wanted to deprive the States of
the § 2254 exhaustion tools in chapter 154 cases, and we are hard
pressed to come up with a reason, especially considering the Act's
apparent general purpose to enhance the States' capacities to
control their own adjudications. It would appear that the State's
reading of § 2264(a) would also eliminate from chapter 154 cases
the provisions of § 2254 that define the exhaustion requirement
explicitly as requiring a claim to be raised by any and every
available procedure in the State, 28 U. S. C. § 2254(c), that newly
authorize federal courts to deny unexhausted claims on the merits,
§ 2254(b)(2), and that newly require a State's waiver of
334
on, that § 2264(b) is explicit in applying §§ 2254(d) and (e) to
such capital cases in order to avoid any suggestion that when
Congress enacted § 2264(a) to supersede §§ 2254(b) and (c) on
exhaustion, Congress also meant to displace the neighboring
provisions of §§ 2254(d) and (e) dealing with such things as the
status of state factual determinations. But we find this unlikely.
First, we find it hard to imagine why anyone would read a
superseding exhaustion rule to address the applicability not just
of the other exhaustion requirement but of provisions on the effect
of state factual determinations. Anyone who did read the special
provision for exhaustion in capital cases to supersede not only the
general exhaustion provisions but evidentiary status and
presumption provisions as well would have had to assume that
Congress could reasonably have meant to leave the law on expedited
capital cases (which is more favorable to the States that fulfill
its conditions) without any presumption of the correctness of
relevant state factual determinations. This would not, we think, be
a reasonable reading and thus not a reading that Congress would
have feared and addressed through § 2264(b). We therefore have to
find a different function for the express requirement of § 2264(b)
that chapter 154 determinations be made in accordance with §§
2254(d) and (e).
Continuing on the State's assumption that § 2264(a) replaces
rather than complements § 2254's exhaustion provisions, we can see
that the function of providing that §§ 2254(d) and (e) be
applicable in chapter 154 cases is, in fact,
exhaustion to be shown to be express, §2254(b)(3). No
explanation for why Congress would have wanted to deny the States
these advantages is apparent or offered by the parties, which
suggests that no such effects were intended at all but that §
2264(a) was meant as a supplement to rather than a replacement for
§§ 2254(b) and (c).
Nevertheless, as stated in the text, we assume for the sake of
argument that the State's understanding of § 2264(a) as replacing
rather than complementing the chapter 153 exhaustion requirements
for chapter 154 is the correct one. Forceful arguments can be made
on each side, and we do not need to resolve the conflict here.
335
supportive of the negative implication apparent in § 107(c).
There would have been no need to provide expressly that subsections
(d) and (e) would apply with the same temporal reach as the
entirely new provisions of chapter 154 if all the new provisions in
both chapters 153 and 154 were potentially applicable to cases
pending when the Act took effect, as well as to those filed later.
If the special provision for applying §§ 2254(d) and (e) in cases
under chapter 154 has any utility, then, it must be because
subsections (d) and (e) might not apply to all chapter 154 cases;
since chapter 154 and the new sections of chapter 153
unquestionably apply alike to cases filed after the Act took
effect, the cases to which subsections (d) and (e) from chapter 153
would not apply without express provision must be those cases
already pending when the Act took effect. The utility of § 2264(b),
therefore, is in providing that when a pending case is also an
expedited capital case subject to chapter 154, the new provisions
of §§ 2254(d) and (e) will apply to that case. The provision thus
confirms that Congress assumed that in the absence of such a
provision, §§ 2254(d) and (e) (as new parts of chapter 153) would
not apply to pending federal habeas cases.
This analysis is itself consistent, in turn, with Congress's
failure in § 2264(b) to make any express provision for applying §§
2254(f), (g), (h), or (i). Subsections (f) and (g) deal with
producing state-court evidentiary records and their admissibility
as evidence. Congress would obviously have wanted these provisions
to apply in chapter 154 pending cases, but because they were old
provisions, which had already attached to "pending" capital habeas
cases (only their letter designations had been amended), Congress
had no need to make any special provision for their application to
pending capital habeas cases that might immediately or later turn
out to be covered by chapter 154. Subsections (h) and (i), however,
are new; if Congress wanted them to apply to chapter 154 cases from
the start it would on our hypotheses have had to make the same
special provision that § 2264(b)
336
made for subsections (d) and (e). But there are reasons why
Congress need not have made any special provisions for subsections
(h) and (i) to apply to the "pending" chapter 154 cases.
Subsections (h) and (i) deal, respectively, with the appointment of
counsel for the indigent in the federal proceeding, and the
irrelevance to habeas relief of the adequacy of counsel's
performance in previous postconviction proceedings. See 110 Stat.
1219-1220. There was no need to make subsection (h) immediately
available to pending cases, capital or not, because 21 U. S. C. §
848(q)(4)(B) already authorized appointment of counsel in such
cases. And there was no reason to make subsection (i) immediately
available for a State's benefit in expedited capital cases, for
chapter 154 already dealt with the matter in § 2261(e), see 110
Stat. 1222. There is, therefore, a good fit of the § 2264(b)
references with the inference that amendments to chapter 153 were
meant to apply only to subsequently filed cases; where there was a
good reason to apply a new chapter 153 provision in the litigation
of a chapter 154 case pending when the Act took effect, § 2264(b)
made it applicable, and when there was no such reason it did no
such thing.
There is only one loose end. Section 2254(a) was an old
provision, without peculiar relevance to chapter 154 cases, but
applicable to them without any need for a special provision; as an
old provision it was just like the lettered subsections (f) and
(g). Why did § 2264(b) make an express provision for applying it to
chapter 154 cases? No answer leaps out at us. All we can say is
that in a world of silk purses and pigs' ears, the Act is not a
silk purse of the art of statutory drafting.
The upshot is that our analysis accords more coherence to §§
107(c) and 2264(b) than any rival we have examined. That is enough.
We hold that the negative implication of § 107(c) is that the new
provisions of chapter 153 generally apply only to cases filed after
the Act became effective. Because Lindh's case is not one of these,
we reverse the
337
judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE
KENNEDY, and JUSTICE THOMAS join, dissenting.
The Court in this case conducts a truncated inquiry into a
question of congressional intent, and, I believe, reaches the wrong
result. The Court begins, uncontroversially enough, by observing
that application of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) to pending cases depends upon congressional
intent, and that our inquiry into that intent should rely upon the
"normal rules" of statutory construction.
Ante, at 326. The
Court then proceeds, however, to disregard all of our retroactivity
case law-which it rather oddly disparages as manifestations of
"Landgrafs default rule,"
ibid.-in favor of a
permissible, but by no means controlling, negative inference that
it draws from the statutory text. I would instead interpret the
AEDPA in light of the whole of our longstanding retroactivity
jurisprudence, and accordingly find that the amended 28 U. S. C. §
2254(d) (1994 ed., Supp. II) applies to pending cases.
The first question we must ask is whether Congress has expressly
resolved whether the provision in question applies to pending
cases.
Landgraf v.
USI Film Products, 511 U. S. 244, 280
(1994). Here, the answer is plainly no. The AEDPA does not clearly
state, one way or the other, whether chapter 153 applies to pending
cases. Given congressional silence, we must still interpret that
statute, and that interpretation is in turn guided by the
retroactivity principles we have developed over the years. The
Court relies on one canon of statutory interpretation,
expressio
unius est exclusio alterius, to the exclusion of all
others.
The Court's opinion rests almost entirely on the negative
inference that can be drawn from the fact that Congress expressly
made chapter 154, pertaining to capital cases, ap-
338
plicable to pending cases, but did not make the same express
provision in regards to chapter 153. That inference, however, is by
no means necessary, nor is it even clearly the best inference
possible. Certainly, Congress might have intended that omission to
signal its intent that chapter 153 not apply to pending cases. But
there are other, equally plausible, alternatives.
First, because chapter 154's applicability is conditioned upon
antecedent events-namely, a State's establishing qualifying capital
habeas representation procedures-Congress could have perceived a
greater likelihood that, absent express provision otherwise, courts
would fail to apply that chapter's provisions to pending capital
cases. Second, because of the characteristically extended pendency
of collateral attacks on capital convictions,l and because of
Congress' concern with the perceived acquiescence in capital
defendants' dilatory tactics by some federal courts (as evidenced
by chapter 154's strict time limits for adjudication of capital
cases and, indeed, by the very title of the statute, the
"Antiterrorism and
Effective Death Penalty Act of 1996"),
Congress could very well have desired to speak with exacting
clarity as to the applicability of the AEDPA to pending capital
cases. Or third, Congress, while intending the AEDPA definitely to
apply to pending capital cases, could have been uncertain or in
disagreement as to which of the many portions of chapter 153 should
or should not apply to pending cases. Congress could simply have
assumed that the courts would sort out such questions, using our
ordinary retroactivity presumptions.
None of these competing inferences is clearly superior to the
others. The Court rejects the first,
ante, at 330-332, as an
"implausible" solution to an "unlikely" ambiguity. But
1 See,
e. g., Pet. for Habeas Corpus in
In re
Mata, O. T. 1995, No. 965679, p. 7 (describing how it took nine
years and three months for a Federal District Court to deny, and
the Ninth Circuit to affirm, petitioner's first federal capital
habeas petition).
339
the solution is not nearly as implausible as the Court's
contention that, in order to show that it wished chapter 153 not to
apply to pending cases, Congress chose to make chapter
154
expressly applicable to such cases. If Congress wanted to make
chapter 153 inapplicable to pending cases, the simplest way to do
so would be to say so. But, if Congress was instead concerned that
courts would interpret chapter 154, because of its contingent
nature, as not applying to pending cases, the most direct way to
solve that concern would be the solution it adopted: expressly
stating that chapter 154 did indeed apply to pending cases.
The Court finds additional support for its inference in the new
28 U. S. C. § 2264(b) (1994 ed., Supp. II), which it believes
"tends to confirm,"
ante, at 332, its analysis. Section 2264
is part of chapter 154 and forbids (subject to narrow exceptions)
federal district courts to consider claims raised by state capital
defendants unless those claims were first raised and decided on the
merits in state court. Section 2264(b) provides, "[fJollowing
review subject to subsections (a), (d), and (e) of section 2254
[contained within chapter 153], the court shall rule on the claims
properly before it." This section, I believe, is irrelevant to the
question before us.
The Court's somewhat tortured interpretation of this section, as
a backhanded way of making §§ 2254(a), (d), and (e) (but not the
rest of chapter 153) apply to pending cases, is not convincing. For
one thing, § 2264(b) is not phrased at all as a timing provision;
rather than containing temporal language applying select sections
to pending cases, § 2264(b) speaks in present tense, about how
review should be conducted under chapter 154. Even more tellingly,
as the Court implicitly concedes when it blandly describes this
provision as a "loose end,"
ante, at 336, the AEDPA did not
alter § 2254(a), and so there is no need for an express provision
making it applicable to pending cases.
Chapter 154 establishes special procedures for capital
prisoners. Section 2264(b), by its terms, makes clear that
340
§§ 2254(a), (d), and (e) apply to chapter 154 proceedings. That
clarification makes sense in light of § 2264(a), which replaces the
exhaustion requirement of §§ 2254(b) and (c) with a requirement
that federal courts consider (subject to narrow exceptions) only
those claims "raised and decided on the merits in the State
courts." Without that clarification, doubt might exist as to
whether the rest of § 2254 still applied in capital
proceedings.
Petitioner protests that to read § 2264(a) as supplanting §§
2254(b) and (c) would produce "outlandish" results, Brief for
Petitioner 26, a conclusion that the Court finds plausible,
ante, at 333-334, and n. 7 (although it ultimately assumes
otherwise). The result would have to be "outlandish," indeed,
before a court should refuse to apply the language chosen by
Congress, but no such result would obtain here. Petitioner and the
Court both fail to appreciate the different litigating incentives
facing capital and noncapital defendants. Noncapital defendants,
serving criminal sentences in prison, file habeas petitions seeking
to be released, presumably as soon as possible. They have no
incentive to delay. In such circumstances, §§ 2254(b) and (c) quite
reasonably require that their habeas claims be filed first in state
courts, so that the state judicial apparatus may have the first
opportunity to address those claims. In contrast, capital
defendants, facing impending execution, seek to avoid being
executed. Their incentive, therefore, is to utilize every means
possible to delay the carrying out of their sentence. It is,
therefore, not at all "outlandish" for Congress to have concluded
that in such circumstances §§ 2254(b) and (c) exhaustion would
needlessly prolong capital proceedings and that § 2264(a)'s
requirement that a claim have been raised and decided on the merits
in state court was a sufficient protection of States' interests in
exhaustion.2
2 This conclusion would also be consistent with the conclusions
of the Powell Committee, which was convened to address the problems
in capital habeas cases and upon whose recommendations chapter 154
was substan-
341
At this point the Court's analysis stops. Based on the weak
inference from Congress' designation of chapter 154 as applying to
pending cases and a strained reading of § 2264, the Court concludes
that Congress impliedly intended for chapter 153 not to apply to
pending cases. I would go on, and apply our ordinary retroactivity
principles, as Congress no doubt assumed that we would.
First, we have generally applied new procedural rules to pending
cases.
Landgraf, 511 U. S., at 275; see also
Beazell
v.
Ohio, 269
U. S. 167, 170-171 (1925);
Ex parte Collett, 337 U. S.
55, 71 (1949);
Dobbert v.
Florida, 432 U. S. 282, 293-294
(1977); Collins v.
Youngblood, 497 U. S. 37, 45 (1990).
This is because "rules of procedure regulate secondary rather than
primary conduct."
Landgraf, supra, at 275. Here, the primary
conduct occurred when Lindh murdered two people in the sheriff's
office of the City-County Building in Madison, Wisconsin.
Obviously, the AEDPA in no way purports to regulate that past
conduct. Lindh's state-court proceedings constituted secondary
conduct. Under our retroactivity
tially based. See Judicial Conference of the United States, Ad
Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee
Report and Proposal (Aug. 23, 1989). The Committee's Comment to
Proposed §2259 (which tracks the AEDPA's §2264) explained as
follows: "As far as new or 'unexhausted' claims are concerned,
[this section] represents a change in the exhaustion doctrine as
articulated in
Rose v.
Lundy, 455 U. S. 509 (1982).
[This section] bars such claims from consideration unless one of
the ... exceptions is applicable. The prisoner cannot return to
state court to exhaust even if he would like to do so. On the other
hand, if [an exception] is applicable, the district court is
directed to conduct an evidentiary hearing and to rule on the new
claim without first exhausting state remedies as
Rose v.
Lundy now requires. Because of the existence of state
procedural default rules,
exhaustion is futile in the great
majority of cases. It serves the state interest of comity in
theory, but in practice it results in delay and undermines the
state interest in the finality of its criminal convictions.
The
Committee believes that the States would prefer to see
post-conviction litigation go forward in capital cases, even if
that entails a minor subordination of their interest in comity as
it is expressed in the exhaustion doctrine." Id., at 22-23
(emphasis added).
342
precedents, were his state proceedings in federal court, we
would have then applied existing procedural law, even though
Lindh's primary conduct occurred some time earlier. The federal
habeas proceeding at issue here is, in a sense, tertiary conduct.
It is not the actual criminal conduct prohibited by law, nor is it
the proceeding to determine whether the defendant in fact committed
such conduct. Rather, it is a collateral proceeding that, in
effect, attacks the judgment of the prior state proceeding. Section
2254(d), the precise section at issue here, simply alters the
standard under which that prior judgment is evaluated, and is in
that sense entirely procedural. Cf.
Horning v.
District
of Columbia, 254
U. S. 135, 139 (1920) (applying newly enacted harmlesserror
statute, which changed the standard under which prior judgments
were evaluated, to pending case).
Second, we have usually applied changes in law to prospective
forms of relief.
Landgraf, supra, at 273; see also
Duplex
Printing Press Co. v.
Deering, 254 U. S. 443, 464
(1921);
American Steel Foundries v.
Tri-City Central
Trades Council, 257 U. S. 184, 201
(1921);
Hall v.
Beals, 396 U. S. 45, 48 (1969)
(per curiam); Kaiser Aluminum &
Chemical Corp. v.
Bonjorno, 494
U. S. 827, 852 (1990) (SCALIA, J., concurring). Unlike damages
actions, which are "quintessentially backward looking,"
Landgraf, supra, at 282, the writ of habeas corpus is
prospective in nature. Habeas does not compensate for past wrongful
incarceration, nor does it punish the State for imposing it. See
Lane v.
Williams, 455 U. S. 624, 631
(1982). Instead, habeas is a challenge to unlawful custody, and
when the writ issues it prevents further illegal custody. See
Preiser v.
Rodriguez, 411 U. S. 475, 489, 494
(1973).
Finally, we have regularly applied statutes ousting jurisdiction
to pending litigation.3
Landgraf, supra, at 274; see
3 Although in
Hughes Aircraft Co. v.
United States ex
rel. Schumer, 520 U. S. 939 (1997), we recently rejected a
presumption favoring retroactivity for
jurisdiction-creating
statutes, see
id., at 950-951, nothing in
Hughes
343
also
Bruner v.
United States, 343 U. S. 112, 116-117,
and n. 8 (1952) ("Congress has not altered the nature or validity
of petitioner's rights or the Government's liability but has simply
reduced the number of tribunals authorized to hear and determine
such rights and liabilities");
Hallowell v.
Commons,
239 U. S. 506,
508 (1916);
Sherman v.
Grinnell, 123 U. S. 679, 680
(1887);
Assessors v.
Osbornes, 9 Wall. 567, 575
(1870); Ex parte McCardle, 7 Wall. 506, 514 (1869);
Insurance Co. v.
Ritchie, 5 Wall. 541, 544-545
(1867). This is because such statutes "'speak to the power of the
court rather than to the rights or obligations of the parties.'''
Landgraf, supra, at 274 (quoting
Republic Nat. Bank of
Miami v.
United States, 506 U. S. 80, 100 (1992)
(THOMAS, J., concurring)); see also 511 U. S., at 293 (SCALIA, J.,
concurring in judgment) ("Our jurisdiction cases are explained, I
think, by the fact that the purpose of provisions conferring or
eliminating jurisdiction is to permit or forbid the exercise of
judicial power-so that the relevant event for retroactivity
purposes is the moment at which that power is sought to be
exercised"). This is the principle most relevant to the case at
hand.
There is a good argument that § 2254(d) is itself
jurisdictional. See
Brown v.
Allen, 344 U. S. 443, 460 (1953)
("Jurisdiction over applications for federal habeas corpus is
controlled by statute");
Sumner v.
Mata, 449 U. S. 539, 547, n. 2
(1981) ("The present codification of the federal habeas statute is
the successor to 'the first congressional grant of jurisdiction to
the federal courts,' and the 1966 amendments embodied in § 2254(d)
[now codified, as amended by the AEDPA, at § 2254(e)] were intended
by Congress as limitations on the exercise of that jurisdiction"
(quoting
Preiser v.
Rodriguez, supra, at 485)); cf.
Arkansas v.
Farm Credit Servs. of Central Ark.,
520 U. S. 821,
826 (1997) (explaining that the Tax Injunction Act-which has
operative language similar to
disparaged our longstanding practice of applying
jurisdiction-ousting statutes to pending cases.
344
§ 2254(d) ("The district courts shall not enjoin ... ")-is
"first and foremost a vehicle to limit drastically federal district
court jurisdiction to interfere with so important a local concern
as the collection of taxes" (internal quotation marks omitted)).
But even if it is not jurisdictional, it shares the most salient
characteristic of jurisdictional statutes: Its commands are
addressed to courts rather than to individuals. Section 2254(d)
does not address criminal defendants, or even state prosecutors; it
prescribes or proscribes no private conduct. Instead, it is
addressed directly to federal courts, providing, "[a]n application
for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted
... unless .... " (Emphasis added.)
Whether the approach is framed in terms of "retroactive effect,"
as the
Landgraf majority put it, 511 U. S., at 280, or in
terms of "the relevant activity that the rule regulates," as
JUSTICE SCALIA'S concurrence put it, see id., at 291 (opinion
concurring in judgment), our longstanding practice of applying
procedural, prospective, and jurisdiction-ousting statutes to
pending cases must play an important part in the decision. These
principles all favor application of § 2254(d) to pending cases.
It is a procedural statute, regulating prospective relief, and
addressed directly to federal courts and removing their power to
give such relief in specified circumstances. Our cases therefore
strongly suggest that, absent congressional direction otherwise, we
should apply § 2254(d) to pending cases. This is not because of any
peculiar characteristic intrinsic to the writ of habeas corpus, but
rather because modifications to federal courts' authority to issue
the writ are necessarily of that stripe-procedural, prospective,
and addressed to courts. It is therefore not surprising that the
parties have not pointed us to a single case where we have found a
modification in the scope of habeas corpus relief inapplicable to
pending cases. To the contrary, respondent and
345
amici have pointed instead to the uniform body of our
cases applying such changes to all pending cases. This has been
true both of statutory changes in the scope of the writ, see,
e.
g., Gusik v.
Schilder, 340 U. S. 128, 131-133,
and n. 4 (1950) (applying 1948 habeas amendments to pending
claims);
Smith v.
Yeager, 393 U. S. 122, 124-125
(1968)
(per curiam) (applying 1966 habeas amendments to
pending claims);
Carafas v.
La Vallee, 391 U. S. 234, 239 (1968)
(same);
Felker v.
Turpin, 518 U. S. 651 (1996)
(applying different section of the AEDPA to pending case), and of
judicial changes, see,
e. g.,
Stone v.
Powell,
428 U. S. 465,
495, n. 38 (1976) (rejecting petitioner's contention that change in
law should apply prospectively);
Sumner v.
Mata,
supra, at 539, 549-551 (applying presumption of correctness of
state-court findings of fact to pending case);
Wainwright v.
Sykes, 433 U.
S. 72 (1977) (applying the cause and prejudice doctrine to
pending case);
Brecht v.
Abrahamson, 507 U. S. 619, 638-639
(1993) (applying actual prejudice standard to pending case).
Because the Court's inquiry is incomplete, I believe it has
reached the wrong result in this case. I would affirm the judgment
of the Court of Appeals.
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