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The purpose of the legislation was stated in the committee report for the House version, H. R. 729. In broad terms, "the bill is designed to reduce the abuse of habeas corpus that results from delayed and repetitive filings." Effective Death Penalty Act of 1995, H. Rep. No. 104-23, 104th Cong., 1st Sess., 9 (1995) (emphasis added). A construction which encourages prompt filing and discourages repetitive filing therefore furthers the legislative purpose. Referring specifically to the statute of limitations, the report continued, "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." Ibid. There is no similar report for the Senate version, but the remarks of the sponsors on the floor indicate the same purpose. See 141 Cong. Rec. 15,019 (1995) (statement of Sen. Specter). An additional purpose was to bolster federalism and give renewed respect to state courts and the primacy of state remedies. See id., at 15,037, col. 2 (statement of Sen. Nickles).
The imprint of these purposes shows clearly in the statutory language. The exhaustion requirement is strengthened by making it nondefaultable, 28 U. S. C. §2254(b)(3), yet needless returns to state court are reduced by allowing dismissal on the merits of meritless but unexhausted claims. See §2254(b)(2). The state court proceedings are made more meaningful by the abolition of de novo reconsideration, §2254(d)(1), and by strengthening the requirement to develop the factual basis of the claim in state court. §2254(e)(2). Repetitive filings are reduced by a strengthened successive petition rule. §2244(b).
The statute of limitations provision, properly construed, fits snugly into the legislative purposes. It serves to reduce delay, reduce repetition, bolster the importance of state remedies, and yet keep the federal courthouse door open for the petitioner who diligently pursues state remedies and then files his federal petition promptly upon exhaustion. The smooth flow of the case through each stage once, without backtracking, is encouraged by a generous tolling provision for state petitions and no tolling for an unexhausted federal petition.
Ideally, a convicted defendant makes all of his claims on direct appeal which can be made on the appellate record and all others in the first (and only) state collateral petition. Then he proceeds to federal habeas with fully exhausted claims. The real world, however, is not so tidy. Sometimes the exhaustion status of a claim is not clear. In Castille v. Peoples, 489 U. S. 346, 348, 351 (1989), the District Court concluded the claims had not been fairly presented to the state courts, the Court of Appeals concluded they had, and this Court concluded they had not. Three years after the federal petition was filed, see id., at 347, this Court remanded for still further consideration of the state-law question of whether the claims were procedurally barred. See 142 Cong. Rec. 7798 (1996) (remarks of Sen. Specter) (criticizing this case).
The way to avoid the wastefulness of extended litigation over exhaustion is to encourage petitioners to file claims of doubtful exhaustion status in state court rather than federal court. The state court either decides the merits, clearing the way for federal review under §2254(d), decides the claim is defaulted, requiring the petitioner to meet the "cause and prejudice" standard of Wainwright v. Sykes, 433 U. S. 72, 87 (1977), or both, see Harris v. Reed, 489 U. S. 255, 264, n. 10 (1989), requiring petitioner to clear both hurdles.
The path to this straightforward approach was cleared by this Court's generous interpretation of the tolling provision earlier this term in Artuz v. Bennett, 531 U. S. __ (No. 99-1238, Nov. 7, 2000). Some circuits had held that a state application was not "properly filed," and hence did not toll the statute, if it was untimely under state law. See, e.g., Dictado v. Ducharme, 189 F. 3d 889, 892 (CA9 1999). Bennett held that procedural bars as to the claims in the application did not render the application itself improperly filed. See Bennett, 531 U. S. __ (slip. op., at 5-6). After Bennett, petitioners with claims of dubious exhaustion status can file them in state court and receive a state-court ruling on the state-law procedural bar question without fear of the statute running.(6)
The natural complement to Bennett's encouragement to file these claims in state court is a discouragement to file them in federal court. That discouragement is provided by the statute of limitations, with no tolling for prior, dismissed federal petitions. The Court of Appeals in the present case said, "Our interpretation merely avoids penalizing state prisoners who properly have filed federal habeas petitions and are awaiting a response from the court." Walker v. Artuz, 208 F. 3d 357, 361 (CA2 2000). Unexhausted petitions may be "properly filed" in the broad sense of Bennett, but they are contrary to a strong, century-old federal policy, see Rose v. Lundy, 455 U. S. 509, 515-516 (1982), which Congress has vigorously reaffirmed in the very act in question here. See 28 U. S. C. §2254(b).
While a habeas petitioner should not be "punished" for filing a federal petition with unexhausted claims in violation of this policy, as the Court of Appeals says, neither should he be rewarded. The general rule is that a dismissal of a case without prejudice leaves the plaintiff in, at best, the same position as if no suit had been filed. See United States v. State of California, 932 F. 2d 1346, 1351 (CA9 1991), aff'd, 507 U. S. 746 (1993); Lambert v. United States, 44 F. 3d 296, 298 (CA5 1995); 9 C. Wright & A. Miller, Federal Practice and Procedure §2367, pp. 323-324, and n. 12 (2d ed. 1995) (voluntary dismissal); 8 J. Moore, Moore's Federal Practice §§41.33[6][d] (voluntary), 41.34[6][f] (by stipulation), 41.50[7][b] (involuntary) (3d ed. 1998). As applied specifically to statutes of limitations, the general rule which applies in the absence of a saving statute is that the limitations period is not tolled by a suit which is dismissed. See Willard v. Wood, 164 U. S. 502, 523 (1896); Alexander v. Pendleton, 8 Cranch (12 U. S.) 462, 470 (1814).
"In other words, a suit dismissed without prejudice is treated for statute of limitations purposes as if it had never been filed. [Citations.] Were this not the rule, statutes of limitations would be easily nullified. The plaintiff could file a suit, dismiss it voluntarily the next day, and have forever to refile it. The strongest case for the rule that the running of the statute of limitations is unaffected by a dismissal without prejudice is therefore the case in which the plaintiff procured the dismissal, as by voluntarily dismissing the suit. [Citations.] But that cannot place limits on the scope of the rule, since a plaintiff can almost always precipitate a dismissal without prejudice, for example by failing to serve the defendant properly or by failing to allege federal jurisdiction, even if he does not move to dismiss it. The rule is therefore as we stated it: when a suit is dismissed without prejudice, the statute of limitations is deemed unaffected by the filing of the suit . . . ." Elmore v. Henderson, 227 F. 3d 1009, 1011 (CA7 2000).
In habeas cases, the dismissal of the first petition for nonexhaustion leaves the petitioner in no worse position than if he had never filed it, as the successive petition rule does not bar his return to federal court after exhaustion. See Slack v. McDaniel, 529 U. S. __, 146 L. Ed. 2d 542, 551, 120 S. Ct. 1595, 1601 (2000). The other side of the coin is that the petitioner should be in no better position than if the first petition had never been filed.
The policy discussion in Board of Regents v. Tomanio, 446 U. S. 478 (1980) provides an informative comparison and contrast. That case involved a civil rights action under 42 U. S. C. §1983 and the "borrowed" state statute of limitations. 446 U. S., at 484-485. Plaintiff had pursued a state court action first and then filed in federal court. Id., at 481-482. The borrowed state limitation law had no applicable tolling provision, id., at 486-487, and the question was whether this no-tolling rule was " 'inconsistent' with the policies underlying §1983." Id., at 487.
The Tomanio Court noted that the remedial policies of §1983 were not adversely affected by refusing tolling, as plaintiffs had the ability to protect themselves by filing on time. Id., at 488. This is also true in habeas, as discussed supra, at 16, where petitioners can protect themselves by going to state court first in all doubtful cases. Next, Tomanio noted that Congress had created §1983 as an independent remedy, i.e., not requiring exhaustion, and a no-tolling rule that effectively forbade consecutive litigation was not inconsistent with this choice. See id., at 489. In habeas, Congress has expressly made the opposite choice and expressly provided the type of tolling denied in Tomanio. It is going straight to federal court that Congress has chosen to forbid, or at least severely restrict, and a rule that one who jumps the gun "litigate[s] at risk," id., at 487, is entirely consistent with this policy. The fact that this rule will occasionally cause petitioners to lose the litigation is also entirely consistent with the policy of the statute as a whole, including its limitation period. See id., at 488.
The Congressional policy is clear. Exhaust state remedies first, then and only then go to federal court. The policy is advanced by denying tolling for a prior, dismissed federal petition.
The rule suggested in the preceding sections of this brief, in combination with the rule of Artuz v. Bennett, 531 U. S. __ (No. 99-1238, Nov. 7, 2000), lays out a clear path for petitioners to follow. That is, file all claims in state court first until they are clearly exhausted, even if arguably defaulted, and only then file in federal court. Amicus acknowledges, however, that this path was not clear before Bennett in some circuits.
Before Bennett, a prisoner in a Ninth Circuit state might not have filed in state court a claim he had not "fairly presented" to any state court, but which he believed was procedurally defaulted. Under Dictado v. Ducharme, 189 F. 3d 889 (CA9 1999), the clock would continue to run while the state court considered the "exhaustion" petition if it ultimately decided that the petition was untimely. Such a petition was not deemed "properly filed" after Dictado and before Bennett. See id., at 892. With this state of the law, the petitioner would go ahead and file in federal court, trying to meet one of the exceptions to the procedural default rule. If the federal court disagreed with the petitioner's assessment of the state default rule, he could find his petition dismissed for nonexhaustion with no time to file another.
This is where equitable tolling comes in. There is a "rebuttable presumption" that equitable tolling applies to most statutes of limitation, see Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95-96 (1990), although it "is not permissible where it is inconsistent with the text of the relevant statute." United States v. Beggerly, 524 U. S. 38, 48 (1998).
In most cases, equitable tolling for a prior federal petition would be inconsistent with at least the purpose, if not the text, of the statute. By providing tolling for state petitions, Congress has implicitly decided to exclude it for prior federal petitions. Cf. Beggerly, supra, 524 U. S., at 48 ("knew or should have known" language in statute precluded equitable tolling for plaintiffs who did know). The "already generous" nature of the state petition tolling rule, as construed in Bennett, further points away from piling on additional, court-created tolling rules. Cf. id., at 49. Finally, to the extent that equitable tolling is deemed to reflect Congressional intent, Congress presumably acted with the awareness that "Federal courts have typically extended equitable relief only sparingly," Irwin, supra, 498 U. S., at 96, and that tolling principles "do not extend to . . . a garden variety claim of excusable neglect." Ibid.
Detrimental reliance on since-overruled precedent would seem to be one of the few occasions for this sparingly granted relief. It is analogous, at least from the petitioner's side, to the circumstance of the party misled by the other party. Cf. Irwin, supra, 498 U. S., at 96. Although tolling should not be allowed in this situation from the date of Bennett forward, it should be allowed to petitioners who relied to their detriment on contrary precedent in their circuits before Bennett. The purpose of the statute is to move these cases along, see supra, at 15, not to set "springes" for petitioners following the path apparently marked by then-controlling precedent. Cf. Davis v. Wechsler, 263 U. S. 22, 24 (1923).
In the present case, the Court of Appeals did not consider Walker's equitable tolling argument. See Walker v. Artuz, 208 F. 3d 357, 361-362 (CA2 2000). It seems highly unlikely he could qualify. "The equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners' 'failure to take the minimal steps necessary' to preserve their claims." Hallstrom v. Tillamook County, 493 U. S. 20, 27 (1989) (quoting Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 466 (1975)). The reasons given by the District Court in its "reasonable time" analysis appear to preclude equitable tolling. Compare App. to Pet. for Cert. 15a-16a, with Elmore v. Henderson, 227 F. 3d 1009, 1013 (CA7 2000). Even so, that question should not be addressed initially in this Court but should instead remain open on remand.
The decision of the United States Court of Appeals for the Second Circuit should be vacated and the case remanded for consideration of the equitable tolling argument.
January, 2001
Respectfully submitted,
Kent S. Scheidegger
Attorneys for Amicus Curiae|
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6. The problem of pre-Bennett cases in circuits which followed the contrary rule is addressed in part IV, infra.