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In the present case, habeas petitioner Saffold waited four and one-half months between denial of his second petition by the state Court of Appeal and filing of his third petition in the California Supreme Court. See Saffold v. Newland, 250 F. 3d 1262, 1266 (CA9 2001). The Ninth Circuit interpreted the California Supreme Court's disposition of this petition as addressing the merits, and it further concluded that this disposition meant that the tolling period included the entire gap. See id., at 1267-1268. In so concluding, the court conflated the statute of limitations with the doctrine of adequate and independent state grounds. "We fail to see why an untimeliness ruling entangled with the federal constitutional merits, which is insufficient to cause a default of a federal claim, should be sufficient to defeat tolling of the AEDPA limitation." Id., at 1267. This is a non sequitur. The two rules have entirely distinct bases, and equating the two is fundamentally erroneous.
On direct review, a state-court holding on an adequate and independent state ground negates the basis of this Court's jurisdiction. That is, if the questions this Court has jurisdiction to review under 28 U. S. C. §1257(a) have no effect on the outcome, then there is no federal question to support jurisdiction. See Sochor v. Florida, 504 U. S. 527, 535, n. * (1992) (procedural default is jurisdictional on direct review). On habeas, procedural default is not jurisdictional, but it is still based on the adequacy of the state ground to support the judgment. See Harris v. Reed, 489 U. S. 255, 260-262 (1989). A prisoner in custody under the authority of a state court judgment is not in custody in violation of the Constitution, see 28 U. S. C. §2254(a), if he has forfeited his attack on the judgment. See Brown v. Allen, 344 U. S. 443, 485-487 (1953).
The new statute of limitations has nothing whatever to do with the basis of the state court's denial of relief. Timely filing of the federal petition is an independent prerequisite for federal habeas relief enacted by Congress as a matter of federal law. The fact that the state may have a more generous rule and may consider on the merits petitions that Congress has barred from federal court cannot and does not lower the federal bar.
If Congress had only wanted to bar in federal court those claims that were untimely under state law, it would have done so by strengthening the procedural default rule. However, the AEDPA actually made few changes to the law of procedural default. AEDPA codified, at least in part, the rule of Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), see 28 U. S. C. §2254(e)(2); Williams v. Taylor, 529 U. S. 420, 434 (2000), but otherwise left the law regarding state procedural defaults largely intact. Instead, Congress enacted the new statute of limitations with the full knowledge that it will bar from federal court claims that may be considered on the merits in state court.
In a state which does not have a statute of limitations on habeas petitions, it is entirely possible for a petition filed more than 12 months after finality on direct review to be considered on the merits. See, e.g., In re Walker, 10 Cal. 3d 764, 774, 518 P. 2d 1129, 1134 (1974) (over 20 years; facts proffered for delay disputed; claim unsupportable on the merits); see also Brief for Criminal Justice Legal Foundation as Amicus Curiae in Lee v. Kemna, No. 00-6933, pp. 20-22 (discussing propriety of denying on the merits claims which are arguably defaulted but clearly meritless). Congress could have authorized federal review of such claims by starting the clock at the time of exhaustion of state remedies, and indeed such a limitation was initially proposed by the same Senators who later sponsored AEDPA. See S. 3, 104th Cong., 1st Sess., §508(a) (1995) ("The limitation period shall run from . . . the date on which State remedies are exhausted . . ."). Congress decided to scrap this language and instead start the clock on the date of finality and stop it during the actual pendency of state collateral review. The important difference in the two approaches is that the petitioner's own delays in initiating state proceedings count against his federal deadline regardless of whether the state and its courts choose to excuse them for the purpose of state collateral review. The prisoner who waits 13 months to initiate state habeas will clearly be barred from federal habeas, even though the state courts may consider his petition timely and address the merits.
The reasons why Congress chose to deal with delay through a statute of limitations rather than a beefed-up default rule are not difficult to see. Procedural default is a murky area of the law. It requires federal-court evaluation of whether state laws are "adequate" and "independent" under standards that remain unclear after many decades of litigation. See CJLF Lee Brief, at 5-10; Brief for Criminal Justice Legal Foundation as Amicus Curiae in Support of the Petition for Writ of Certiorari in Stewart v. Smith, No. 01-339, pp. 3-5.
Further, as the present case illustrates, a rule that depends on interpretation of the state court disposition creates perennial difficulties. In the procedural default area, this Court's precedents lay down some rules and presumptions, but the results have been less than fully satisfactory. Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983) created a presumption of disposition on federal grounds in certain direct review cases. That presumption causes little harm on direct review, since, if the presumption turns out to be incorrect, the state court can always reassert the state ground on remand. See, e.g., Commonwealth v. Labron, 547 Pa. 344, 345, 690 A. 2d 228, 228-229 (1997). On habeas, though, there is no remand, and valid judgments that actually rest on independent state grounds are routinely overturned based on a presumption that is doubtful to begin with and easily misapplied. Ten years after Coleman v. Thompson, 501 U. S. 722, 740 (1991) and twelve years after Harris v. Reed, 489 U. S. 255, 264, n. 10 (1989), we still regularly see decisions such as the Ninth Circuit's opinion in the present case, brushing aside the state supreme court's clear statement of both the procedural default and the merits as alternative grounds. See Saffold, 250 F. 3d, at 1267. The real and fabricated interpretive difficulties with independent state grounds should not be exported to the statute of limitations, where the basis of the rule does not require interpretation of the state decision.
Worst of all, procedural default law as applied by the Ninth Circuit creates a perverse incentive for states to adopt severe default rules with narrow or no exceptions. In In re Robbins, 18 Cal. 4th 770, 811-812, and n. 32, 959 P. 2d 311, 338-339, and n. 32 (1998), the California Supreme Court clarified and arguably narrowed its "error of constitutional magnitude" exception in evident response to the Ninth Circuit's dubious decision in Siripongs v. Calderon, 35 F. 3d 1308 (1994). Decisions such as the present case may be expected to result in further curtailment of delayed petitions, either through case law, rule of court, legislative statute, or initiative, if that is the only way to have the federal limitation meaningfully implemented. Cutting off state and federal remedies in one swoop would not be to the benefit of habeas petitioners generally, but it is the natural consequence of a line of decisions that punishes states for generosity.
The principal advantage of a statute of limitations over a "delayed petition" rule is clarity. Shortly before enactment of the AEDPA,Lonchar v. Thomas, 517 U. S. 314, 326-327 (1996) held that even a multi-year delay did not authorize dismissal without a showing of prejudice, a nebulous requirement at best, and noted the debate over the appropriateness of such a rule. Id., at 328. That debate concluded with the enactment of §2244(d).
Clarity in deadlines serves the interest of both the prisoner and the state. The prisoner knows when he must get his papers in. The state knows when its judgment is truly final. The Ninth Circuit's approach robs the state of its finality and simultaneously sets a trap for the prisoner. By false analogy to independent state grounds, an untimely successive petition tolls the statute during the gap period if and only if the state court accepts the untimely filing or if its rejection for untimeliness somehow lacks adequacy or independence. This is not known or knowable to the petitioner at the time when the clock may or may not be running.
The Seventh Circuit called this the "Cheshire cat-like quality" of the Saffold approach. Fernandez v. Sternes, 227 F. 3d 977, 980 (2000). Whatever it is called, it is inimical to the clarity and certainty that a statute of limitations should provide. The complexity and confusion of the independent state grounds doctrine should not be imported into the statute of limitations. State courts can and should accept or reject untimely filings in the exercise of whatever discretion state law gives to them. Their orders should be summary dispositions or full opinions according to the needs of the case and the state judicial system, and not with a glance over the shoulder to federal habeas. Cf. Coleman, 501 U. S., at 738-739 (declining to "tell state courts how they must write their opinions"). The state court's decision to accept or reject an untimely petition should have no bearing on whether the federal limitation clock was ticking in the interim.
For the reasons discussed in part II, supra, any tolling in the intervals between successive petitions in California can only be based on inference of the policy Congress intended, and not on the wording of the statute or the common understanding of a proceeding being "pending." If such tolling is to be allowed, it must be limited in duration so as to effectuate and not defeat the purpose of the statute.
Any inference of Congressional "intent" on this point must be made with the understanding that the members of Congress who voted for this Act probably did not think about the precise problem at all. Cf. Beecham v. United States, 511 U. S. 368, 374 (1994) (noting that determining what legislators would have thought about a particular case is a "hopeless" task). Amicus has found no indication in the legislative history that the issue even came up. When Congress specified tolling while a state proceeding was "pending," its members probably envisioned state systems similar to the system for federal prisoners under 28 U. S. C. §2255. Under that system, there is a fixed and relatively short time for appeals in the normal course of procedure. See Fed. Rule App. Proc. 4(a)(1)(B) (60 days when U. S. is a party); Rule 11 of the Rules Governing Section 2255 Proceedings in the United States District Courts ("§2255 Rules") (adopting FRAP 4(a)). If the petitioner is unsuccessful on appeal, the time to seek certiorari review in this Court is also definite. See 28 U. S. C. §2101(c); Heflin v. United States, 358 U. S. 415, 418, n. 7 (1959).
We can also draw some inferences about the meaning of "pending" from cases on 28 U. S. C. §2251 and its predecessor. The predecessor statute provided an automatic stay of state proceedings "against" the petitioner while the federal "proceedings or appeal" were "[p]ending." See In re Jugiro, 140 U. S. 291, 295 (1891) (quoting Rev. Stat. §766). In Rogers v. Peck, 199 U. S. 425, 427 (1905), the governor granted a reprieve immediately after the federal District Court denied relief, to give the petitioner time to appeal. The petitioner then ungratefully attacked this action as violating the automatic stay. This Court rejected the argument on the ground that the action was not "against" the petitioner, not on the ground that no proceeding was pending. See id., at 437. Rogers could be read to imply that a proceeding was pending in the interval. But see Webster v. Fall, 266 U. S. 507, 511 (1925) (no precedent established for questions which are not discussed but "merely lurk in the record").
Jugiro addressed the meaning of "pending" regarding a much more attenuated possibility of further proceedings. In that case, the state court set a new execution date a week after this Court's decision on the first habeas petition, without waiting for the mandate to issue. See 140 U. S., at 292. Jugiro claimed this action was void because the first habeas proceeding was still pending. See id., at 294-295. The Court rejected the argument, holding that "the appeal . . . was no longer pending," id., at 295, notwithstanding the possibility that the Court might yet "suspend or set aside its own judgment." Id., at 296.
From these cases we can infer a principle that a case may be considered pending when further review remains available in the normal course of procedure, i.e., via a timely petition or notice of appeal, but that the mere possibility of further review, such as rehearing in the rendering court or allowance of an untimely petition, does not keep "pending" an otherwise final case. As applied to a system like that governed by Federal Rules of Appellate Procedure 4(a), a case would be pending during the normal time of subdivision (1) or during the actual consideration of a motion under subdivisions (5) or (6), but the mere possibility that a motion could be filed under subdivisions (5) or (6) would not keep an action pending until the motion is actually filed.
The difficult question arises when "timely" and "untimely" are not precisely defined intervals but instead are matters of judgment.Amicus suggests that the guiding principles for this situation may be drawn from the cases involving "borrowed" statutes of limitations.
Congress often creates causes of action without specifying a statute of limitations. See Board of Regents v. Tomanio, 446 U. S. 478, 483 (1980). It is well established that in these circumstances courts will "assume that Congress did not intend to create a right enforceable in perpetuity." Felder v. Casey, 487 U. S. 131, 140 (1988). The usual solution is to borrow the most closely analogous state statute, seeJohnson v. Railway Express Agency, Inc., 421 U. S. 454, 464 (1975), provided that a state limitation will not be adopted if it is "inconsistent with the federal policy underlying the cause of action under consideration." Id., at 465.
States remain free, for the purpose of their own consideration of federal claims, to adopt open-ended rules of timeliness along the lines of Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Congress has made no attempt to preempt these rules. Cf. Felder, supra, at 138. However, these rules do not control when the clock is running for the purpose of the statute governing the subsequent filing in federal court. As discussed, supra, at 15, it is beyond dispute that a claim considered timely in state court may be barred from federal review for delay preceding the initial filing. By the same token, it would be inconsistent with the policy of the federal statute to permit a state's open-ended timeliness rule for the intervals between state courts to permit indefinite delay.
Amicus suggests that where state law provides no definite time period to initiate review in a higher court, the federal statute be tolled for the period prescribed by state law for the most closely analogous procedure which does have a definite limit. Where a successive petition is used as a de facto appeal from the trial court to the intermediate appellate court, the habeas petitioner should have as much time as regular appellants in civil cases, and no more. Cf. §2255 Rule 11 (adopting civil case limit). The general rule in California is 60 days. See Cal. Rules of Court 2(a). As applied to the present case, this would easily cover the gap between the Superior Court's denial of relief on June 9, 1997, and Saffold's application to the Court of Appeal only five days later.
For the next level, the proper tolling period is even more obvious. Saffold had the same right as any other unsuccessful Court of Appeal litigant to ask the California Supreme Court for discretionary review. See Cal. Penal Code §1506. (4) For a summary denial of an original habeas petition not consolidated with the appeal, the petitioner has ten days. See Cal. Rules of Court 28(b) (10 days from finality in Court of Appeal), 24(a) (summary writ denials final immediately, with exception for habeas consolidated with appeal); Peoplev.Pendleton, 25 Cal. 3d 371, 382-383, n. 2, 599 P. 2d 649, 656, n. 2 (1979) (finality rules, predates exception noted above); Fisher, Writs in California State Courts §2.146, p. 321, in Appeals and Writs in Criminal Cases (CEB J. Bishop ed., 1st ed. 1982); id., at 172 (1998 Supp.). This is a tight deadline, to be sure, but not an unreasonable one.
Instead of petitioning for review, Saffold waited four and one-half months and filed an original writ petition, which the California Supreme Court denied for lack of diligence as well as lack of merit. App. to Pet. for Cert. G-1. Not only did the Ninth Circuit hold that the entire period was tolled in this case, but in a subsequent case that court held that its decision in the present case required tolling the entire time for a petitioner who waited over four years to file a successive original petition raising different grounds. Welch v. Newland, 267 F. 3d 1013 (CA9 2001). (5) A rule more contrary to the purpose of this statute is difficult to imagine.
There is no reason to toll the statute any longer for one mode of review than for the other. Although filing an original petition remains a proper procedure, see In re Clark, 5 Cal. 4th 750, 767, n. 7, 855 P. 2d 729, 740, n. 7 (1993), the policies underlying the federal statute do not depend on the choice. The definition of "pending" may be stretched to give the prisoner who files a successive writ applicationas much time as the one who files a petition for review; there is no justification in language or policy for giving him more time.
When a California prisoner has been denied habeas relief by the Court of Appeal, the federal limitation period should begin running again when the time to petition for review in the California Supreme Court expires. The time should continue to run until an original writ petition has actually been filed with that court. In the present case, Saffold's 12 months had long expired by the time he filed his petition. Regardless of how the California Supreme Court's disposition of the petition is interpreted, Saffold did not meet the deadline established by Congress for a federal habeas petition. The District Court correctly dismissed it.
The decision of the Court of Appeals for the Ninth Circuit should be reversed.
November, 2001
Respectfully submitted,
Kent S. Scheidegger
Counsel of Record
Maritza B. Meskan
Attorneys for Amicus Curiae
Criminal Justice Legal Foundation