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Many times in the years preceding 1996, Congress considered whether to enact a statute of limitations for habeas cases. See Loncharv.Thomas, 517 U. S. 314, 333-334 (1996) (80 bills in 1986-1995). In the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress finally adopted 28 U. S. C. §2244(d):
"(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--"(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; "(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; "(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or"(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
"(2) 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."
Reduction of unnecessary delay has been a pivotal part of habeas corpus reform throughout its lengthy legislative history. The Powell Committee's report to the Judicial Conference in 1989 proposed habeas reform in capital cases. The committee noted that reform was needed to cure the "piecemeal and repetitious litigation, and years of delay between sentencing and a judicial resolution as to whether the sentence was permissible under the law." Judicial Conference of the United States Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal 1 (1989), reprinted in 135 Cong. Rec. 24,694 (1989). The committee identified serious problems with the system of collateral review that it broadly categorized as "unnecessary delay and repetition." Id., at 2. A prisoner had "no incentive to move the collateral review process forward until an execution date is set." Id., at 3. The committee concluded that any serious reform proposal "must address the problems of delay and repetitive litigation." Id., at 4.
In 1989-1990 Congress considered the Committee's proposal, including a limitation period of six months for capital cases in qualifying states, with the filing period commencing upon the appointment of counsel or a refusal of the offer of counsel. This proposal tolled the six-month period during the pendency of all state court proceedings. See S. 1760, 101st Cong., 1st Sess., proposed 28 U. S. C. §2256 (1989), reprinted in 135 Cong. Rec. 24,696 (1989). In discussing the proposal's intent, insofar as capital cases are concerned, Justice Powell stated, "The point of the180 day filing requirement is to prompt capital defense attorneys to formulate a habeas petition. Otherwise, in a capital case, there is literally no incentive to file a habeas corpus petition until it becomes absolutely necessary. If a capital defense counsel works diligently from the day of appointment, he or she will get the state habeas petition filed with time to spare." Habeas Corpus Reform: Hearings Before the Senate Committee on the Judiciary on S. 88, S. 1757, and S.1760, 101st Cong., 1st & 2d Sess., S. Hrg. 101-1253, Ser. No. J-101-49, 114 (1991).
Habeas reform did not pass in the 101st Congress or in the two succeeding Congresses. In the 104th Congress, on February 8, 1995, the House passed H. R. 729, the Effective Death Penalty Act of 1995. See 141 Cong. Rec. 4120-4121 (1995). This act carried forward the Powell Committee limitation for capital cases. See Effective Death Penalty Act of 1995, H. Rep. No. 104-23, 104th Cong., 1st Sess., 5, 17 (1995). It also added a statute of limitation for all habeas cases, not just capital cases in qualifying states. This limitation began upon finality of direct review, and tolled the limitation "during the pendency of a properly filed application for State review . . . ." Id., at 2. This was substantially the limitation later incorporated into the AEDPA.
The plain purpose of the limitations statute was stated in the committee report for the House version.
"[T]he bill is designed to reduce the abuse of habeas corpus that results from delayed and repetitive filings. . . . ¶ To help accomplish [this] purpose, the bill imposes periods of limitation on federal habeas corpus petitions filed under 28 U. S. C. section2254 . . . . This reform will curb the lengthy delays in filing that now often occur in federal habeas corpus litigation, while preserving the availability of review when a prisoner diligently pursues state remedies and applies for federal habeas review in a timely manner." H. Rep. No. 104-23,supra, at 9 (emphasis added).
Imposition of a statute of limitations on the filing of state prisoner petitions in federal court was considered an "essential ingredient" to any habeas reform legislation in the Congressional discussion leading up to AEDPA's enactment. See Federal Habeas Corpus Reform: Eliminating Prisoners' Abuse of the Judicial Process, Hearing before the Committee on the Judiciary, United States Senate, S. Hrg. 104-428, 104th Cong., 1st Sess., 28 (1995) (statement of California Attorney General Dan Lungren). "One year for general habeas and 180 days for capital habeas, with tolling periods; that is, periods where you don't count the time while they are going through State review or State collateral review." Id., at 74. Similarly, Gale Norton, Attorney General of Colorado said, "The first major reform is the creation of a statute of limitations for all habeas petitions. Statutes of limitations and time deadlines are common throughout the law, and applying them to habeas petitions is long overdue." Id., at 59. James S. Gilmore, Attorney General of Virginia, noted "the single, most helpful thing the Congress could do to assist . . . in reducing the delay in capital cases is to impose the filing deadlines . . . that I know you are considering." Id., at 202.
In formulating the final version of the act, Congress was also cognizant of the suffering of victims' families and friends and sought to cure the painfully traumatic practice of setting an interminable series of execution dates in order to compel capital prisoners to move to the next level of review. Texas Attorney General Dan Morales summarized these concerns, "Establishing statutes of limitations for the filing of Federal habeas applications . . . serves both to streamline litigation and to alleviate the pain of victims' families and friends, who under the current system endure an endless series of execution dates set only to compel the inmate to move to the next stage of litigation." Id., at 34 (emphasis added).
While the problem was most acute in capital cases, Congress did not limit the statute to such cases. It deliberately included the one-year limitation period in Chapter 153, applicable to all habeas cases. The statute serves the purpose of pushing the petitioner along through each stage of review until the federal habeas petition is filed. At that point, the federal courts can conduct their review. After conclusion of the first federal petition, the strict limitations on successive petitions, see 28 U. S. C. §2244(b)(2), will preclude further federal review in all but the rarest cases. Pushing the petitioner to file each stage thus moves the case along to something approaching true finality.
AEDPA's undisputed purpose is to promote "the principles of comity, finality and federalism." Williams v. Taylor, 529 U. S. 420, 436 (2000). The one-year limitation period of §2244(d)(1) "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 review." Duncan v. Walker, 533 U. S. 167, 150 L. Ed. 2d 251, 262-263, 121 S. Ct. 2120, 2128 (2001). Section 2244(d)(2) specifically "promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments." Id., 150 L. Ed. 2d, at 262, 121 S. Ct., at 2127. It also "balances the interests served by the exhaustion requirement and the limitation period." Id., 150 L. Ed. 2d, at 263, 121 S. Ct., at 2128. Finally, the section serves the important function of "protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued."Ibid. The Ninth Circuit's view destroys this careful balance. Instead, its open-ended tolling eliminates any semblance of finality and, consequently, defeats the central purpose of the statute.
Filing of habeas applications in state courts has long been a prerequisite to federal habeas. See 28 U. S. C. §2254(b) (exhaustion rule). It would be unfair to penalize petitioners for their time spent exhausting state court remedies. For this reason, Congress included the tolling provision to insure that the Federal courts would remain accessible to the diligent petitioner. Curtailment of delay in pursuit of post-conviction remedies was a driving force behind the AEDPA legislation. It is unlikely that Congress would enact open-ended tolling that renders the one-year limitation period superfluous and ineffectual.
The limitations period serves important policy interests in the curbing of unnecessary delay by timely presentation of claims. However, Congressional intent does not include punishing petitioners for delays beyond their control. During the 1995 Senate Committee hearings, in response to Senator Biden's question regarding possible time limits on when petitions must be filed, Attorney General Lungren answered:
"The general limitation period of 1 year and the Powell Committee provision both contain tolling provisions which will extend the filing deadlines. This is not meant to be a criticism in that we all agree that the petitioner should not be punished for delay beyond his or her control." Federal Habeas Corpus Reform, S. Hrg. 104-428, supra, at 146 (emphasis added).
Any argument for a lenient interpretation of "pending" based on policy must necessarily be limited to what is necessary to protect thediligent petitioner from circumstances beyond his control. An interpretation that rewards the dilatory petitioner for delays of his own making would be contrary to the purpose of the statute.
The present case does not involve an appeal from the denial of state habeas. Instead, it involves three state habeas petitions, filed in the trial, intermediate appellate, and state supreme courts, respectively. Analysis of the case must begin with the procedure actually invoked in the case.
The traditional rule in both English and in American courts was that an order denying habeas relief is not appealable, absent a statute authorizing such an appeal. The petitioner could instead file another application with another court. See W. Church, Habeas Corpus §386, pp. 570-571 (2d ed. 1893); id., §389, at 580. Throughout most of the nineteenth century, this Court's review of the decision of lower courts in habeas matters was accomplished through successive original petitions in this Court. See Ex parte Yerger, 8 Wall. (75 U. S.) 85, 97-100 (1869) (discussing cases to that point).
By the late nineteenth century, statutes allowing appeals were the clear trend. See Church, supra, §389g, at 601-602. Yet the California Legislature has not authorized such appeals, and the traditional rule remains in force. The defendant cannot appeal a denial of habeas relief by the superior court and must file a new petition with a higher court. See People v. Gallardo, 77 Cal. App. 4th 971, 985-986, 92 Cal. Rptr. 2d 161, 171 (2000); 6 B. Witkin & N. Epstein, Cal. Criminal Law, Criminal Writs §80, p. 611 (3d ed. 2000). This new petition is a successive habeas petition. It is not, of course, subject to the restrictions on successive petitions at the same level, presenting repetitive or piecemeal claims. In re Clark, 5 Cal. 4th 750, 767, n. 7, 855 P. 2d 729, 740, n. 7 (1993).
With appeals, there is some ambiguity as to whether the filing of the appeal is the commencement of a new case. Compare Slackv.McDaniel, 529 U. S. 473, 482 (2000), with Mackenzie v. A. Engelhard & Sons Co., 266 U. S. 131, 142-143 (1924). With successive petitions, there is none. This can be seen clearly from the fact that the successive petition in the higher court is not necessarily limited to review of the issues considered in the lower court. The statute expressly contemplates addition of new issues. See Cal. Penal Code §1475.
To be sure, this Court did hold in Yerger that review through a successive petition was an exercise of appellate jurisdiction. See 8 Wall., at 102-103. That was a stretch made necessary by the peculiarities of this Court's constitutional jurisdiction, i.e., the Marbury problem. See Ex parte Bollman, 4 Cranch (8 U. S.) 75, 100-101 (1807) (distinguishing Marbury v. Madison, 1 Cranch (5 U. S.) 137, 175 (1803)); but see id., at 104-105 (Johnson, J., dissenting). In other jurisdictions where this was not an obstacle, the de facto review via a successive petition was understood to be original and not appellate jurisdiction. See Church, supra, §389g, at 601.
In Yerger, the term "appellate" in Article III of the Constitution was stretched to accommodate the imperative necessity of full habeas review, given the importance of freedom from illegal detention in our system of constitutional values and the role of habeas corpus in enforcing that freedom. See 8 Wall., at 95-96. Similarly, in McFarland v. Scott, 512 U. S. 849, 858 (1994), the concept of when a habeas corpus proceeding is "pending" within the meaning of 28 U. S. C. §2251 was stretched nearly to the breaking point because of the perceived necessity to avoid execution of a capital defendant before counsel could prepare a habeas petition. Absent such compelling considerations, this Court has refused to stretch statutory language, has turned aside diffuse claims of "unfairness," and enforced the habeas statutes as written, including the very statute at issue here. See Duncan v. Walker, 533 U. S. 167, 150 L. Ed. 2d 251, 263-264, 121 S. Ct. 2120, 2129 (2001).
Nothing in the statutory language requires or even suggests that a successive petition is "pending" in the interval between its filing and the dismissal of the prior petition by a lower court. "Pending" means "[r]emaining undecided; awaiting decision." Black's Law Dictionary 1154 (7th ed. 1999). A case cannot be considered remaining undecided when it has been decided and there is no appeal, merely because the decision is not res judicata and the issue may be redecided in another proceeding. If such a gap-covering mechanism is to be created, it can only be as a stretch of statutory language to cover a perceived necessity or to implement an unexpressed intention of Congress. If such a stretch is to be made, amicus submits that the Court should recognize it as such and stretch no further than the exigency requires.
The Ninth Circuit believed that its approach was necessary to "permit state courts to address the merits of the petitioner's claim." Saffoldv. Newland, 250 F. 3d 1262, 1267 (2001). Tolling the limitation period between successive petitions is not necessary for this purpose. The petitioner himself has the ability to get his case before the state courts in a timely manner. He need only file his Superior Court petition within ten months of finality on direct review. Even if there is no tolling in the gaps at all, he would still have as much time as appellants have to file in the state Court of Appeal. See Cal. Rules of Court 2(a) (60 days from notice). If denied there, he has the same right as any other appellant to file a petition for review with the California Supreme Court, rather than a new original petition as Saffold chose to file. See Cal. Penal Code §1506. If he runs out of time, it is the result of his own delay.
Another reason asserted for unlimited tolling in the gaps is that failure to toll would force the petitioner to file a premature federal petition before exhaustion to preserve his eventual federal review. See Saffold, 250 F. 3d, at 1267. For the reasons just noted, the diligent petitioner is not forced to do so. To implement the purpose of the statute to push petitioners along to each stage, see supra, at 9, the dilatory petitioner should not be permitted to do so. Instead, Rose v. Lundy, 455 U. S. 509, 522 (1982) should be applied to dismiss any such attempt to do an end run around the statute.
In part IV, infra, we will propose a rule that is congruent with the purpose of the statute and more than sufficient to meet the legitimate needs of diligent petitioners. First, though, it is necessary to dispose of a red herring in the Ninth Circuit's opinion in the present case.
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