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ARGUMENT

I. Unless tolling applies, the last day to file a petition
for writ of habeas corpus was April 24, 1997.

Before discussing the question of tolling, it is necessary to identify precisely the deadline in the absence of tolling. The statute provides:

"A 1-year period of limitation shall apply to an application for a writ of habeas corpus . . . . 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; . . . ." 28 U. S. C. §2244(d)(1).

This language specifies both the date on which the "clock" starts and what the would-be petitioner must do to meet the deadline.

Prior to enactment of the AEDPA, finality on direct review was important for retroactivity. See Griffith v. Kentucky, 479 U. S. 314, 321, n. 6 (1987). Caspari v. Bohlen, 510 U. S. 383, 390 (1994) defined finality for this purpose as "when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." The similarity of the statutory language to the Griffith/Bohlen rule implies that Congress had this date in mind. In any event, there is considerable practical value in having a single, well-defined date of "finality" for both retroactivity and §2244(d)(1) and no compelling argument for a different method of calculation. A petition for writ of certiorari to this Court is not one of the state remedies that must be exhausted, see County Court of Ulster Cty. v. Allen, 442 U. S. 140, 149-150, n. 7 (1979), but the word "State" is conspicuously absent from §2244(d)(1)(A). Cf. 28 U. S. C. §§2244(d)(2) (tolling), 2254(b)(1)(A) (exhaustion). The Court of Appeals applied this rule to Walker's direct appeal and calculated the finality date as April 14, 1996. Walker v. Artuz, 208 F. 3d 357, 358 (CA2 2000).⁽³⁾

This finality date predates the enactment of the statute of limitations. The general rule of construction for this situation was established in Sohn v. Waterson, 17 Wall. (84 U. S.) 596, 600 (1873). When the triggering event occurs prior to enactment of the statute, the clock starts upon enactment, and the moving party has the full statutory time from that date. As there is no contrary indication in the statutory language, the Sohn rule sets April 24, 1997, as the deadline for cases which became final before April 24, 1996. The Court of Appeals applied an equivalent rule in this case. See Walker, supra, 208 F. 3d, at 359.

The final preliminary point is precisely what the petitioner needs to do by the deadline to meet it. The answer is plain on the face of the statute. The limitation expressly applies to the "application for a writ of habeas corpus," which is synonymous with a "petition for a writ of habeas corpus." See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The petition must be filed by the due date. This is consistent with Federal Rule of Civil Procedure 3, which provides, "A civil action is commenced by filing a complaint with the court." Prefiling actions, such as requesting counsel, do not constitute commencement. See Baldwin County Welcome Center v. Brown, 466 U. S. 147, 148, 150-151 (1984) (per curiam) (request for counsel and copy of "right to sue" letter did not constitute commencement of action for statute of limitation purposes); see also West v. Conrail, 481 U. S. 35, 38-39 (1987) (filing complaint is commencement in federal practice).⁽⁴⁾

Taken together, these rules require that Walker file his petition for writ of habeas corpus by April 24, 1997, unless tolling applies to extend that date. We now turn to the tolling question.

II. The language and history of the statute indicate that only state petitions toll the limitations period.

A. Language.

The Antiterrorism and Effective Death Penalty Act, 110 Stat. 1214 (1996) added three statutes of limitation for collateral review of convictions. A one-year limitation applies to state prisoners in cases not subject to Chapter 154. See 28 U. S. C. §2244(d)(1). A 180-day limitation applies to Chapter 154 cases. See 28 U. S. C. §2263(a). A one-year limitation applies to federal prisoners. See 28 U. S. C. §2255, sixth paragraph. The state prisoner limitations have tolling provisions, but the federal prisoner limitation does not:

"(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." 28 U. S. C. §2244(d)(2).

"(2) from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition; . . . ." 28 U. S. C. §2263(b)(2).

In the present case, the Court of Appeals for the Second Circuit interpreted §2244(d)(2) so that " 'State' modifies only the word 'post-conviction,' " Walker v. Artuz, 208 F. 3d 357, 359 (CA2 2000), "and the phrase 'other collateral review' . . . means federal habeas petitions." Id., at 360. This limitation of the word "State" is contrary to the conclusions of the other circuits. Three circuits have rejected this interpretation on the very point at issue here. See Grooms v. Johnson, 208 F. 3d 488, 489 (CA5 1999); Jones v. Morton, 195 F. 3d 153, 159 (CA3 1999); Jiminez v. Rice, 222 F. 3d 1210, 1213 (CA9 2000). Three others have rejected it in the context of tolling for certiorari petitions. Coates v. Byrd, 211 F. 3d 1225, 1227 (CA11 2000) (tolling applies "only so long as the case is in the state courts"); Rhine v. Boone, 182 F. 3d 1153, 1156 (CA10 1999); Isham v. Randle, 226 F. 3d 691, 695 (CA6 2000) ("2244(d)(2) is drafted such that 'State' modifies 'postconviction or other collateral relief' ").

The notion that Congress used the word "other" when it meant "Federal" is odd, to say the least. Congress knows how to say "State or Federal" when that is what it means. See Jiminez, supra, 222 F. 3d, at 1213 (citing 28 U. S. C. §§2254(i), 2261(e), 2264(a)(3)).

The mainstay of the Court of Appeals' interpretation is its belief that "State post-conviction review" must necessarily sweep in all forms of state judicial review of criminal judgments other than direct appeal. See Walker, supra, 208 F. 3d, at 360. From this premise, it concludes "the phrase 'other collateral review' would be meaningless if it did not refer to federal habeas petitions." Ibid.

While the premise might be reasonable looking at §2244(d)(2) in isolation, it cannot be reconciled with §2263(b)(2). That subsection also tolls for "post-conviction review or other collateral relief," and the tolling period ends with "the final State court disposition of such petition." 28 U. S. C. §2263(b)(2) (emphasis added). Beyond question, this subdivision refers only to state judicial remedies. "State court disposition" of a clemency petition or a federal habeas petition would make no sense. Beyond question, Congress thought that the term "post-conviction review" might be interpreted as something less than fully inclusive of all state-court collateral reviews and thought that the term "other collateral" was necessary to preclude a narrower application of the tolling provision. If Congress believed this for §2263(b)(2), there is no logical reason to doubt it also believed it for §2244(d)(2). See infra, at 14 (simultaneous appearance of both provisions in legislative history).

The Court of Appeals is correct that the term "post-conviction review" conventionally refers to all forms of judicial attacks on criminal judgments after finality. See Walker, supra, 208 F. 3d, at 360. However, language changes with time and varies by place, and today the term sometimes, in some places, refers to a specific procedure rather than a broad category of procedures.

Florida is a case in point. In the wake of Gideon v. Wainwright, 372 U. S. 335 (1963), the Florida courts adopted by rule a new collateral review procedure modeled on 28 U. S. C. §2255. See Gideon v. Wainwright, 153 So. 2d 299, 300 (Fla. 1963) (on remand). The new procedure, which is now Florida Rule of Criminal Procedure 3.850, has come to be called a "motion for post-conviction relief." The contemporary usage of this term is illustrated by this passage from Knight v. State, 394 So. 2d 997, 998-999 (Fla. 1981) (per curiam) (emphasis added):

"We have for consideration a petition for writ of habeas corpus by Thomas Knight whose conviction and sentence of death were affirmed by this Court in Knight v. State, 338 So.2d 201 (Fla. 1976). We originally transferred this petition to the Eleventh Judicial Circuit and directed that it be treated as a motion for post-conviction relief. The trial judge in considering the petition properly determined that since petitioner's claim for relief is predicated on the assertion of ineffective assistance of appellate counsel, such relief can only be granted by habeas corpus in the appellate court unless it was caused by an act or omission of the trial court. The ineffective assistance of counsel allegations stem from acts or omissions before this Court, and therefore we have jurisdiction and will consider the petition for habeas corpus on its merits."

In Florida, then, "post-conviction relief" refers specifically to Rule 3.850, and habeas corpus is something else. The drafter of §2244(d)(2) could legitimately have been concerned that if the tolling provision referred only to "post-conviction relief" it might be misinterpreted to not toll for a subsequent habeas petition such as Knight's. Language included to head off an anticipated misinterpretation may be redundant, but the canon of construction against superfluity ought not preclude such an interpretation. In drafting, as in engineering, redundancy can be a necessary safety measure, providing vital backup protection in the event that the primary structure fails.

Another problem with the Court of Appeals' interpretation can be seen by comparing the provisions for state and federal prisoners. The language added in the new sixth paragraph of 28 U. S. C. §2255 is substantially the same as §2244(d)(1), but the tolling language of §2244(d)(2) is omitted entirely. As interpreted by the Court of Appeals, the state prisoner provision tolls for any previous federal petition dismissed for any reason, not just for nonexhaustion. Is there any logical reason Congress would provide such tolling for state and not federal prisoners?

To illustrate, suppose two hypothetical prisoners, state and federal, file §2254 and §2255 petitions, respectively, only to see them denied on the merits a year later. Both then promptly file second petitions, which must face the formidable barriers to such petitions. Assuming they can surmount these barriers, if the Second Circuit is correct then the federal prisoner would be barred by the statute of limitations while the state prisoner would not. That makes no sense. Congress has pointed in the opposite direction by placing a lower hurdle for successive petitions by federal prisoners than for state prisoners. See 6 W. LaFave, J. Israel, & N. King, Criminal Procedure §28.9(b), p. 136 (2d ed. 1999). A more generous remedy for federal prisoners is consistent with the role of §2255 as the primary remedy for federal prisoners' claims outside the record, while §2254 is a "secondary and limited," see Barefoot v. Estelle, 463 U. S. 880, 887 (1983), backup to be invoked only when state remedies fail. This policy would be contradicted by a more strict statute of limitations for federal prisoners than for state prisoners.

A more sensible interpretation is that Congress omitted the tolling provision from §2255 altogether because its subject matter is completely inapplicable to federal prisoners. That is, §2244(d)(2) tolls for the sole purpose of allowing state prisoners to exhaust state remedies. Federal prisoners do not have that requirement and hence do not need the tolling.

The language of the AEDPA as a whole indicates quite strongly that the tolling provision is only for state judicial remedies which follow affirmance on direct appeal. The Court could very well stop at this point. See King v. St. Vincent's Hospital, 502 U. S. 215, 222, n. 14 (1991). However, if resort to legislative history is thought necessary, further confirmation lies there.

B. History.

Legislative proposals for a statute of limitations have been considered for a number of years, see Vasquez v. Hillery, 474 U. S. 254, 265 (1986), but the movement took firm shape with the publication of the Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal (1989), reprinted in 135 Cong. Rec. 24,694-24,698 (1989). This report is commonly known as the Powell Committee Report, see, e.g., Lonchar v. Thomas, 517 U. S. 314, 328 (1996), because retired Justice Powell chaired the committee.

Under the committee proposal, which Senator Thurmond introduced as S. 1760, the clock started with the appointment of post-conviction counsel, see 135 Cong. Rec., at 24,693-24,694 (proposed §2258(a)), which followed affirmance on direct review in state court. See id., at 24,693, col. 2 (proposed §2256(b)). Without a statute of limitation, states had been forced to the drastic step of setting execution dates for death row inmates who had not completed review of their sentences, as this was the only way to force them to the next stage of proceedings. See id., at 24,697, col. 3. The limitation period was tolled for the certiorari petition on direct review but not state collateral review. Id., at 24,698, col. 1. It was also tolled for state post-conviction review. Ibid. Tolling for a prior federal petition is not mentioned, and apparently no one ever thought that such a tolling rule would apply.

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, using the language ultimately adopted, and tolled the limitation "during the pendency of a properly filed application for State review . . . ." Id., at 2. "[T]he limitation period . . . would be tolled . . . in the course of state collateral review, and would run following the conclusion of state collateral review." Id., at 17. The bill clearly did not contemplate tolling for prior federal petitions.

H. R. 729 modified the Powell Committee proposal by accommodating "unitary review" in states such as California, where the state habeas proceeding overlaps the direct appeal. See id., at 6 (§2261(a)); see also id., at 18 (California specifically cited as example of "unitary review"). Starting the clock with appointment of "post-conviction" counsel might have been workable in such states, as the statute would have been tolled during the pendency of "unitary review," see id., at 5-6 (§§2258(2), 2261(c)), but it would have been awkward.

In the Senate, there followed "very extended negotiations" between Senator Specter and Senator Hatch. See 141 Cong. Rec. 15,018, col. 3 (1995) (statement of Sen. Specter). They finally agreed on, and jointly sponsored, S. 623, the Habeas Corpus Reform Act of 1995, which was later incorporated into S. 735. See ibid. This bill saw the debut of the language ultimately adopted for the Chapter 154 triggering event and for tolling in both chapters. The standard Chapter 153 statute of limitation began at the conclusion of direct review. 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., 118 (1995). The special Chapter 154 limit began with finality in state court but was tolled during pendency of a certiorari petition. See id., at 132-133.

In the committee hearing on S. 623, neither the committee members nor the witnesses indicated that the change in wording of these provisions altered the tolling. On the contrary, California Attorney General Dan Lungren, one of the major proponents of habeas reform, summarized the statute of limitation by stating, "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.

In Lindh v. Murphy, 521 U. S. 320, 330 (1997), this Court found significance in the fact that the language making Chapter 154 retroactive appeared after that new chapter and the amendments to Chapter 153 had been combined in the same bill. An even stronger inference can be drawn from the fact that the terms "post-conviction" and "other collateral" appeared simultaneously in the tolling provisions of §2244 and §2263.

As H. R. 729 passed the House, both tolling provisions unambiguously applied only to state court proceedings and not to prior federal petitions. As proposed in S. 623 and as ultimately enacted, §2263(b)(2) also unquestionably applies only to state court proceedings. See supra, at 9. The conclusion that "other collateral review" in §2244(d)(2) refers to federal petitions would require two highly unlikely premises. First, one would have to accept that the drafter of the section intended to extend tolling where none of the prior proposals had extended it. Second, one would have to accept that the mechanism of this extension was the use of a phrase that is essentially identical⁽⁵⁾ to a phrase placed simultaneously in another provision of the same bill, where it unquestionably does not have that meaning. Each of these premises is unlikely in itself. Together, they border on impossible. The history of the statute thus reinforces the most natural reading of the language, i.e., that "State" modifies both "post-conviction" and "other collateral."

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3. This calculation includes a ten-day period after the state high court decision, but see Supreme Court Rule 13.3, and overlooks the fact that April 14, 1996, was a Sunday. Cf. Supreme Court Rule 30.1. For the reasons discussed in the next paragraph, these issues are not material to the present case.

4. The Ninth Circuit's holding in Calderon v. United States District Court (Kelly), 163 F. 3d 530, 540 (CA9 1998) (en banc), that a case becomes "pending" upon the filing of a request for counsel for the purpose of applying the AEDPA, has not been well received in other circuits. See Williams v. Coyle, 167 F. 3d 1036, 1039 (CA6 1999); Gosier v. Welborn, 175 F. 3d 504, 506 (CA7 1999); Moore v. Gibson, 195 F. 3d 1152, 1162-1163 (CA10 1999).

5. The difference between "application for . . . review" in §2244(d)(2) and "petition for . . . relief" in §2263(b)(2) is not significant.