CAREY, WARDEN v. SAFFOLD

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Syllabus
CAREY, WARDEN v. SAFFOLD
certiorari to the united states court of appeals for
the ninth circuit
No. 01–301. Argued February 27, 2002—Decided June 17, 2002
The Antiterrorism and Effective Death Penalty Act of 1996 requires
a state prisoner seeking federal habeas relief to file his petition
within one year after his state conviction becomes final, 28 U. S. C.
§ 2244(d)(1)(A), but excludes from that period the time during which an
application for state collateral review is “pending,” § 2244(d)(2). Re-
spondent Saffold filed a state habeas petition in California seven days
before the federal deadline. Five days after the state trial court denied
his petition, he filed a further petition in the State Court of Appeal.
Four and one-half months after that petition was denied, he filed a fur-
ther petition in the State Supreme Court, which denied the petition on
the merits and for lack of diligence. The Federal District Court dis-
missed his subsequent federal habeas petition as untimely, finding that
the federal statute of limitations was not tolled during the intervals
between the denial of one state petition and the filing of the next be-
cause no application was “pending” during that time. In reversing,
the Ninth Circuit included the intervals in the “pending” period, and
found that Saffold’s petition was timely because the State Supreme
Court based its decision not only on lack of diligence but also on the
merits.
Held:
1. As used in § 2244(d)(2), “pending” covers the time between a lower
state court’s decision and the filing of a notice of appeal to a higher state
court. Most States’ collateral review systems require a prisoner to file
a petition in a trial court; then to file a notice of appeal within a specified
time after entry of the trial court’s unfavorable judgment; and, if still
unsuccessful, to file a further notice of appeal (or request for discretion-
ary review) to the state supreme court within a specified time. Peti-
tioner warden seeks a uniform national rule that a state petition is not
“pending” during the interval between a lower court’s entry of judg-
ment and the timely filing of a notice of appeal in the next court, reason-
ing that the petition is not being considered during that time. Such a
reading is not consistent with the ordinary meaning of “pending,” which,
in the present context, means until the completion of the collateral re-
view process; i. e., until the application has achieved final resolution
through the State’s postconviction proceedings. Petitioner’s reading

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Syllabus
would also produce a serious statutory anomaly. Because a federal ha-
beas petitioner has not exhausted his state remedies as long as he has
“the right under [state] law . . . to raise” in that State, “by any available
procedure, the question presented,” § 2254(c), and because petitioner’s
interpretation encourages state prisoners to file their petitions before
the State completes a full round of collateral review, federal courts
would have to contend with petitions that are in one sense unlawful
(because the claims have not been exhausted) but in another sense re-
quired by law (because they would otherwise be barred by the 1-year
limitations period). Pp. 219–221.
2. The same “pending” rule applies to California’s unique collateral
review system, even though that system involves, not a notice of appeal,
but the filing (within a “reasonable” time) of a further original state
habeas petition in a higher court. California’s system is not as special
in practice as its terminology might suggest. A prisoner typically will
seek habeas review in a lower court and later seek appellate review in
a higher court. Thus, the system functions very much like that in other
States, but for its indeterminate timeliness rule. That rule may make
it more difficult for federal courts to determine when a review appli-
cation comes too late. But the tolling provision seeks to protect the
State’s interests, and the State can explicate timing requirements more
precisely should that prove necessary. In applying a federal statute
that interacts with state procedural rules, this Court looks to how a
state procedure functions, not its particular name. California’s system
functions in ways sufficiently like other state collateral review systems
to bring intervals between a lower court decision and a filing in a higher
court within the scope of “pending.” Pp. 221–225.
3. The words “on the merits” by themselves do not indicate that Saf-
fold’s petition was timely, but it is not possible to conclude that the
Ninth Circuit was wrong in its ultimate conclusion. The State Supreme
Court may have included such words in its opinion for a variety of rea-
sons. And the Ninth Circuit’s willingness to take them as an absolute
bellwether risks the tolling of the federal limitations period even when
it is likely that the state petition was untimely, thus threatening the
statutory purpose of encouraging prompt filings in order to protect the
federal system from being forced to hear stale claims. In reconsidering
the timeliness issue, the Ninth Circuit is left to evaluate any special
conditions justifying Saffold’s delay in filing in the state court and any
other relevant considerations, and to decide whether to certify a ques-
tion to the State Supreme Court to seek clarification of the state law.
Pp. 225–227.
250 F. 3d 1262, vacated and remanded.

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216 CAREY v. SAFFOLD
Opinion of the Court
Breyer, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed a dis-
senting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ.,
joined, post, p. 227.
Stanley A. Cross, Supervising Deputy Attorney General
of California, argued the cause for petitioner. With him on
the brief were Bill Lockyer, Attorney General, Robert R.
Anderson, Chief Assistant Attorney General, and Jo Graves
and Arnold O. Overoye, Senior Assistant Attorneys General.
David W. Ogden argued the cause for respondent. With
him on the brief were Mary Katherine McComb, by appoint-
ment of the Court, 534 U. S. 1053, and Seth P. Waxman.*
Justice Breyer delivered the opinion of the Court.
The federal Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) requires a state prisoner seeking a
federal habeas corpus remedy to file his federal petition
within one year after his state conviction has become “final.”
28 U. S. C. § 2244(d)(1)(A). The statute adds, however, that
the 1-year period does not include the time during which an
*Briefs of amici curiae urging reversal were filed for the State of North
Carolina et al. by Roy A. Cooper III, Attorney General of North Carolina,
Amy C. Kunstling, Assistant Attorney General, and Dan Schweitzer, and
by the Attorneys General for their respective States as follows: Bill Pryor
of Alabama, Janet Napolitano of Arizona, Ken Salazar of Colorado,
M. Jane Brady of Delaware, Earl I. Anzai of Hawaii, James E. Ryan of
Illinois, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland,
Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri,
Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del
Papa of Nevada, John J. Farmer, Jr., of New Jersey, Betty D. Montgomery
of Ohio, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania,
Charles M. Condon of South Carolina, Mark Barnett of South Dakota,
Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, and
Hoke MacMillan of Wyoming; and for the Criminal Justice Legal Founda-
tion by Kent S. Scheidegger.
David M. Porter and Peter Goldberger filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae urging
affirmance.

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Opinion of the Court
application for state collateral review is “pending” in the
state courts. § 2244(d)(2).
This case raises three questions related to the statutory
word “pending”:
(1) Does that word cover the time between a lower state
court’s decision and the filing of a notice of appeal to a higher
state court?
(2) If so, does it apply similarly to California’s unique state
collateral review system—a system that does not involve a
notice of appeal, but rather the filing (within a reasonable
time) of a further original state habeas petition in a higher
court?
(3) If so, was the petition at issue here (filed in the Califor-
nia Supreme Court 41 ⁄ 2 months after the lower state court
reached its decision) pending during that period, or was it
no longer pending because it failed to comply with state
timeliness rules?
We answer the first two questions affirmatively, while re-
manding the case to the Court of Appeals for its further
consideration of the third.
I
In 1990 Tony Saffold, the respondent, was convicted and
sentenced in California state court for murder, assault with a
firearm, and robbery. His conviction became final on direct
review in April 1992. Because Saffold’s conviction became
final before AEDPA took effect, the federal limitations pe-
riod began running on AEDPA’s effective date, April 24,
1996, giving Saffold one year from that date (in the absence
of tolling) to file a federal habeas petition.
A week before the federal deadline, Saffold filed a state
habeas petition in the state trial court. The state trial court
denied the petition. Five days later Saffold filed a further
petition in the State Court of Appeal. That court denied his
petition. And 41 ⁄ 2 months later Saffold filed a further peti-
tion in the California Supreme Court. That court also de-
nied Saffold’s petition, stating in a single sentence that it did

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Opinion of the Court
so “on the merits and for lack of diligence.” App. G to Pet.
for Cert. 1.
Approximately one week later, in early June 1998, Saffold
filed a petition for habeas corpus in the Federal District
Court. The District Court noted that AEDPA required Saf-
fold to have filed his petition by April 24, 1997. It recog-
nized that the statute gave Saffold extra time by tolling its
limitations period while Saffold’s application for state collat-
eral review was “pending” in the state courts. But the Dis-
trict Court decided that Saffold’s petition was “pending” only
while the state courts were actively considering it, and that
period did not include the intervals between the time a lower
state court had denied Saffold’s petition and the time he had
filed a further petition in a higher state court. In Saffold’s
case those intervals amounted to five days (between the trial
court and intermediate court) plus 41 ⁄ 2 months (between
the intermediate court and Supreme Court), and those inter-
vals made a critical difference. Without counting the in-
tervals as part of the time Saffold’s application for state
collateral review was “pending,” the tolling period was not
long enough to make Saffold’s federal habeas petition timely.
Hence the District Court dismissed the petition.
The Ninth Circuit reversed. It included in the “pending”
period, and hence in the tolling period, the intervals between
what was, in effect, consideration of a petition by a lower
state court and further consideration by a higher state
court—at least assuming a petitioner’s request for that fur-
ther higher court consideration was timely. Saffold v. New-
land, 250 F. 3d 1262, 1266 (2001). It added that Saffold’s
petition to the California Supreme Court was timely despite
the 41 ⁄ 2 months that had elapsed since the California Court
of Appeal decision. That is because the California Supreme
Court had denied Saffold’s petition, not only because of
“lack of diligence” but also “on the merits,” a circumstance
that showed the California Supreme Court had “applied its
untimeliness bar only after considering to some degree the

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Opinion of the Court
underlying federal constitutional questions raised.” Id., at
1267.
We granted certiorari. We now vacate the judgment and
remand the case.
II
In most States, relevant state law sets forth some version
of the following collateral review procedures. First, the
prisoner files a petition in a state court of first instance, typi-
cally a trial court. Second, a petitioner seeking to appeal
from the trial court’s judgment must file a notice of appeal
within, say, 30 or 45 days after entry of the trial court’s judg-
ment. See, e. g., Ala. Rule App. Proc. 4 (2001); Colo. App.
Rule 4(b)(1) (2001); Ky. Rule Crim. Proc. 12.04(3) (2002).
Third, a petitioner seeking further review of an appellate
court’s judgment must file a further notice of appeal to the
state supreme court (or seek that court’s discretionary re-
view) within a short period of time, say, 20 or 30 days, after
entry of the court of appeals judgment. See, e. g., Ala. Rule
App. Proc. 5 (2001); Colo. Rev. Stat. § 13–4–108 (2001); Conn.
Rule App. Proc. 80–1 (2002); Ky. Rule Civ. Proc. 76.20(2)(b)
(2002). California argues here for a “uniform national rule”
to the effect that an application for state collateral review is
not “pending” in the state courts during the interval be-
tween a lower court’s entry of judgment and the timely filing
of a notice of appeal (or petition for review) in the next court.
Brief for Petitioner 36. Its rationale is that, during this
period of time, the petition is not under court consideration.
California’s reading of the word “pending,” however, is not
consistent with that word’s ordinary meaning. The diction-
ary defines “pending” (when used as an adjective) as “in
continuance” or “not yet decided.” Webster’s Third New
International Dictionary 1669 (1993). It similarly defines
the term (when used as a preposition) as “through the period
of continuance . . . of,” “until the . . . completion of.” Ibid.
That definition, applied in the present context, means that an
application is pending as long as the ordinary state collateral

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Opinion of the Court
review process is “in continuance”—i. e., “until the comple-
tion of ” that process. In other words, until the applica-
tion has achieved final resolution through the State’s post-
conviction procedures, by definition it remains “pending.”
California’s reading would also produce a serious statutory
anomaly. A federal habeas petitioner must exhaust state
remedies before he can obtain federal habeas relief. The
statute makes clear that a federal petitioner has not ex-
hausted those remedies as long as he maintains “the right
under the law of the State to raise” in that State, “by any
available procedure, the question presented.” 28 U. S. C.
§ 2254(c). We have interpreted this latter provision to re-
quire the federal habeas petitioner to “invok[e] one complete
round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U. S. 838, 845 (1999). The ex-
haustion requirement serves AEDPA’s goal of promoting
“comity, finality, and federalism,” Williams v. Taylor, 529
U. S. 420, 436 (2000), by giving state courts “the first oppor-
tunity to review [the] claim,” and to “correct” any “constitu-
tional violation in the first instance.” Boerckel, supra, at
844–845. And AEDPA’s limitations period—with its accom-
panying tolling provision—ensures the achievement of this
goal because it “promotes the exhaustion of state remedies
while respecting the interest in the finality of state court
judgments.” Duncan v. Walker, 533 U. S. 167, 178 (2001).
California’s interpretation violates these principles by en-
couraging state prisoners to file federal habeas petitions
before the State completes a full round of collateral review.
This would lead to great uncertainty in the federal courts,
requiring them to contend with habeas petitions that are
in one sense unlawful (because the claims have not been
exhausted) but in another sense required by law (because
they would otherwise be barred by the 1-year statute of
limitations).
It is therefore not surprising that no circuit court has in-
terpreted the word “pending” in the manner proposed by

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Opinion of the Court
California. Every Court of Appeals to consider the argu-
ment has rejected it. Melancon v. Kaylo, 259 F. 3d 401, 406
(CA5 2001); Payton v. Brigano, 256 F. 3d 405, 408 (CA6
2001); Hizbullahankhamon v. Walker, 255 F. 3d 65, 72 (CA2
2001); Nyland v. Moore, 216 F. 3d 1264, 1267 (CA11 2000);
Swartz v. Meyers, 204 F. 3d 417, 421–422 (CA3 2000); Taylor
v. Lee, 186 F. 3d 557, 560–561 (CA4 1999); Nino v. Galaza,
183 F. 3d 1003, 1005 (CA9 1999); Barnett v. LeMaster, 167
F. 3d 1321, 1323 (CA10 1999). Like these courts, we answer
the first question in the affirmative.
III
Having answered the necessarily predicate question of
how the tolling provision ordinarily treats applications for
state collateral review in typical “appeal” States, we turn
to the question whether this rule applies in California. Cal-
ifornia’s collateral review system differs from that of other
States in that it does not require, technically speaking, appel-
late review of a lower court determination. Instead it con-
templates that a prisoner will file a new “original” habeas
petition. And it determines the timeliness of each filing ac-
cording to a “reasonableness” standard. These differences,
it is argued, require treating California differently from “ap-
peal” States, in particular by not counting a petition as
“pending” during the interval between a lower court’s deter-
mination and filing of another petition in a higher court.
See, e. g., Brief for Criminal Justice Legal Foundation as
Amicus Curiae 5–18.
California’s “original writ” system, however, is not as spe-
cial in practice as its terminology might suggest. As inter-
preted by the courts, California’s habeas rules lead a pris-
oner ordinarily to file a petition in a lower court first. In re
Ramirez, 89 Cal. App. 4th 1312, 1316, 108 Cal. Rptr. 2d 229,
232 (2001) (appellate court “has discretion to refuse to issue
the writ . . . on the ground that application has not [first]
been made . . . in a lower court”); Harris v. Superior Court

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Opinion of the Court
of Cal., 500 F. 2d 1124, 1126 (CA9 1974) (same); 6 B. Witkin &
N. Epstein, California Criminal Law § 20, p. 540 (3d ed. 2000)
(describing general policy that reviewing court will require
application to have been made first in lower court). And a
prisoner who files a subsequent and similar petition in an-
other lower court (say, another trial court) will likely find
consideration of that petition barred as successive. See,
e. g., In re Clark, 5 Cal. 4th 750, 767–771, 855 P. 2d 729, 740–
744 (1993). At the same time, a prisoner who files that same
petition in a higher, reviewing court will find that he can
obtain the basic appellate review that he seeks, even though
it is dubbed an “original” petition. See In re Resendiz, 25
Cal. 4th 230, 250, 19 P. 3d 1171, 1184 (2001) (reviewing court
grants substantial deference to lower court’s factual find-
ings). Thus, typically a prisoner will seek habeas review in
a lower court and later seek appellate review in a higher
court—just as occurred in this case.
The upshot is that California’s collateral review process
functions very much like that of other States, but for the
fact that its timeliness rule is indeterminate. Other States
(with the exception of North Carolina, see Allen v. Mitchell,
276 F. 3d 183, 186 (CA4 2001)), specify precise time limits,
such as 30 or 45 days, within which an appeal must be taken,
while California applies a general “reasonableness” standard.
Still, we do not see how that feature of California law could
make a critical difference. As mentioned, AEDPA’s tolling
rule is designed to protect the principles of “comity, finality,
and federalism,” by promoting “the exhaustion of state rem-
edies while respecting the interest in the finality of state
court judgments.” Duncan, supra, at 178 (internal quota-
tion marks omitted). It modifies the 1-year filing rule (a
rule that prevents prisoners from delaying their federal fil-
ing) in order to give States the opportunity to complete one
full round of review, free of federal interference. Inclusion
of California’s “reasonableness” periods carries out that pur-
pose in the same way, and to the same degree, as does inclu-

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Opinion of the Court
sion of the more specific appellate filing periods prevalent in
other States. And exclusion of those periods in California
would undermine AEDPA’s statutory goals just as it would
in those States. See Part II, supra.
The fact that California’s timeliness standard is general
rather than precise may make it more difficult for federal
courts to determine just when a review application (i. e., a
filing in a higher court) comes too late. But it is the State’s
interests that the tolling provision seeks to protect, and the
State, through its supreme court decisions or legislation, can
explicate timing requirements more precisely should that
prove necessary.
Ordinarily, for purposes of applying a federal statute that
interacts with state procedural rules, we look to how a state
procedure functions, rather than the particular name that it
bears. See Richfield Oil Corp. v. State Bd. of Equalization,
329 U. S. 69, 72 (1946) (looking to function rather than “desig-
nation” that state law gives a state-court judgment for pur-
poses of determining federal jurisdiction); Department of
Banking of Neb. v. Pink, 317 U. S. 264, 268 (1942) (per cu-
riam) (same). We find that California’s system functions in
ways sufficiently like other state systems of collateral review
to bring intervals between a lower court decision and a filing
of a new petition in a higher court within the scope of the
statutory word “pending.”
The dissent contends that this application of the federal
tolling provision to California’s “original writ” system “will
disrupt the sound operation of the federal limitations period
in at least 36 States.” Post, at 227 (opinion of Kennedy, J.).
This is so, the dissent believes, because the prisoner is given
two choices when his petition has been denied by the inter-
mediate court: He can file a “petition for hearing” in the su-
preme court within 10 days, or he can file a “new petition”
in the supreme court. In re Reed, 33 Cal. 3d 914, 918, and
n. 2, 663 P. 2d 216, 217, and n. 2 (1983). Why is California
different, the dissent asks, from “appeal” States that also

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Opinion of the Court
give their supreme courts the power to entertain original
habeas petitions? Won’t our interpretation of the federal
tolling rule, as it applies to California, apply equally to those
other States, meaning that even after the statutory time to
appeal to the supreme court has expired, the federal limita-
tions period may still be tolled because a prisoner might, at
any time, file an original petition?
The answer to this question is “no.” In “appeal” systems,
the original writ plays a different role. As the Supreme
Court of Idaho (one of the States cited by the dissent)
explains:
“The Supreme Court, having jurisdiction to review on
appeal decisions of the district courts in habeas corpus
proceedings . . . will not exercise its power . . . to grant
an original writ of habeas corpus, except in extraordi-
nary cases.” In re Barlow, 48 Idaho 309, 282 P. 380
(1929).
See also, e. g., Commonwealth v. Salzinger, 406 Pa. 268, 269,
177 A. 2d 619, 620 (1962) (“extraordinary circumstances” re-
quired for exercise of original jurisdiction); La Belle v. Han-
cock, 99 N. H. 254, 255, 108 A. 2d 545 (1954) (per curiam)
(“original authority” to grant habeas relief “not ordinarily
exercised”); Ex parte Lambert, 37 Tex. Crim. 435, 436, 36
S. W. 81, 82 (1896) (“[E]xcept in extraordinary cases, we will
not entertain jurisdiction as a court to grant original writs
of habeas corpus”).
California, in contrast, has engrained original writs—both
at the appellate level and in the supreme court—into its nor-
mal collateral review process. As we have explained, and
as the dissent recognizes, the only avenue for a prisoner to
challenge the denial of his application in the superior court
is to file a “new petition” in the appellate court. And to
challenge an appellate court denial, “[f]urther review [of a
habeas application] may be sought in [the supreme] court

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Opinion of the Court
either by a new petition for habeas corpus or, preferably, by
a petition for hearing.” In re Reed, supra, at 918, n. 2, 663
P. 2d, at 216, n. 2 (emphasis added). Unlike States such as,
say, Idaho, see In re Barlow, supra, the original writ in Cali-
fornia is not “extraordinary”—it is interchangeable with the
petition for hearing, with neither option bringing adverse
consequences to the petitioner. Consequently, we treat Cal-
ifornia both as similar to other States (in that its “original
writ” system functions like the “appeal” systems of those
other States), and differently from other States (in that the
rule we apply to original writs in California does not apply
to original writs in other States, precisely because origi-
nal writs in California function like appeals). And of course,
as we have said, California remains free, through legisla-
tive or judicial action, to adjust its “original writ” system
accordingly.
IV
It remains to ask whether Saffold delayed “unreasonably”
in seeking California Supreme Court review. If so, his ap-
plication would no longer have been “pending” during this
period. Saffold filed his petition for review in the California
Supreme Court 41 ⁄ 2 months after the California Court of Ap-
peal issued its decision. The Ninth Circuit held that this
filing was nonetheless timely. It based its conclusion pri-
marily upon the fact that the California Supreme Court
wrote that it denied the petition “on the merits and for lack
of diligence.” These first three words, the Ninth Circuit
suggested, showed that the California Supreme Court could
not have considered the petition too late, for, if so, why would
it have considered the merits? 250 F. 3d, at 1267.
There are many plausible answers to this question. A
court will sometimes address the merits of a claim that it
believes was presented in an untimely way: for instance,
where the merits present no difficult issue; where the court
wants to give a reviewing court alternative grounds for deci-

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sion; or where the court wishes to show a prisoner (who may
not have a lawyer) that it was not merely a procedural tech-
nicality that precluded him from obtaining relief. Given the
variety of reasons why the California Supreme Court may
have included the words “on the merits,” those words cannot
by themselves indicate that the petition was timely. And
the Ninth Circuit’s apparent willingness to take such words
as an absolute bellwether risks the tolling of the federal limi-
tations period even when it is highly likely that the prisoner
failed to seek timely review in the state appellate courts.
See, e. g., Welch v. Newland, 267 F. 3d 1013 (CA9 2001) (find-
ing limitations period tolled during 4-year gap). The Ninth
Circuit’s rule consequently threatens to undermine the statu-
tory purpose of encouraging prompt filings in federal court
in order to protect the federal system from being forced to
hear stale claims. See Duncan, 533 U. S., at 179.
If the California Supreme Court had clearly ruled that Saf-
fold’s 4 1 ⁄ 2-month delay was “unreasonable,” that would be the
end of the matter, regardless of whether it also addressed
the merits of the claim, or whether its timeliness ruling was
“entangled” with the merits. 250 F. 3d, at 1267. We cannot
say in this case, however, that the Ninth Circuit was wrong
in its ultimate conclusion. Saffold argues that special cir-
cumstances were present here: He was not notified of the
Court of Appeal’s decision for several months, and he filed
within days after receiving notification. And he contends it
is more likely that the phrase “lack of diligence” referred to
the delay between the date his conviction became final and
the date he first sought state postconviction relief—a matter
irrelevant to the question whether his application was “pend-
ing” during the 41 ⁄ 2-month interval. We leave it to the
Court of Appeals to evaluate these and any other relevant
considerations in the first instance. We also leave to the
Court of Appeals the decision whether it would be appro-
priate to certify a question to the California Supreme Court

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Kennedy, J., dissenting
for the purpose of seeking clarification in this area of state
law.
* * *
For the foregoing reasons, we answer the first two issues
presented in this case in the affirmative, vacate the judgment
of the Court of Appeals, and remand the case for further
proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy, with whom The Chief Justice,
Justice Scalia, and Justice Thomas join, dissenting.
Respondent is a California prisoner who did not file a no-
tice of appeal. The Court, however, begins by considering
a question not presented, whether the statute of limita-
tions would have been tolled for a hypothetical prisoner who
filed an appeal somewhere else. This is a strong indication
that the Court is off in the wrong direction. After holding
that tolling applies for its hypothetical appellant, the Court
finally gets to California, where no appeal was filed. On the
Court’s view, California’s procedures are “unique,” ante, at
217, so giving them special treatment under the statute will
affect only that one State. It is quite wrong about this. In
fact, today’s ruling will disrupt the sound operation of the
federal limitations period in at least 36 States. This is what
happens when the Court departs from the text of a nation-
wide statute to reach a result in one particular State.
The Court’s conclusion that an application is pending be-
fore the filing of an original writ in the California Supreme
Court rests on three propositions: First, “application” means
“petition, appeal from the denial of a petition, and anything
else that functions as an appeal.” Second, California’s
procedures are very different from those in other States.
Third, a petition for an original writ in the California Su-
preme Court functions as an appeal. The first is an untena-
ble interpretation of statutory text. The second and third,
however, are wrong on both the facts and the law. The rem-

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228 CAREY v. SAFFOLD
Kennedy, J., dissenting
edies available in the California Supreme Court are no differ-
ent from those available in most other state supreme courts.
Like 36 other States, California allows its high court both to
reverse the denial of habeas corpus in the lower court and
to grant an original petition for habeas outright. In Califor-
nia, as in other States, these procedures differ in more than
name. They differ with respect to the question in this case:
whether an application was pending in the 4-month period
between the denial of respondent’s habeas petition in the
California Court of Appeal and his filing of a new petition in
the California Supreme Court.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U. S. C. § 2244(d)(1), provides a 1-year
statute of limitations for filing a federal habeas corpus peti-
tion, but it tolls the limitations period while a “properly filed
application” for collateral review is “pending” in the state
courts. The Court now holds that on the day before re-
spondent filed an original petition in the California Supreme
Court, his application was “properly filed” and “pending”
somewhere. The Court does not say what that application
was, nor does it identify the court in which it was filed. This
is because nothing had been under consideration or await-
ing the result of an appeal for four months, since the Cali-
fornia Court of Appeal had denied respondent’s previous
application.
Instead of identifying a particular pending application, the
Court relies upon an expansive definition of the term. The
Court begins by defining “pending,” offering one definition
for when the word is used as an adjective and another for
when used as a preposition. See ante, at 219. As the stat-
ute only uses the word as an adjective (tolling while the ap-
plication “is pending”), the latter definition is irrelevant and
misleading. When used as an adjective, the definition does
not help the Court. The Court says “pending” means “ ‘in
continuance’ or ‘not yet decided.’ ” Ibid. (quoting Webster’s
Third New International Dictionary 1669 (1993)). The real

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229 Cite as: 536 U. S. 214 (2002)
Kennedy, J., dissenting
issue though is not what “pending” means, but when is an
“application . . . pending.” The Court asserts that “an appli-
cation is pending as long as the ordinary state collateral re-
view process is ‘in continuance’ . . . .” Ante, at 219–220.
That is only true, of course, if “application” means the “ordi-
nary state collateral review process,” a proposition that finds
no support in Webster’s Third. Indeed, it is inconsistent
with Artuz v. Bennett, 531 U. S. 4 (2000), which recognized
that an “application” is a “document” distinct from the legal
claims contained within it. Id., at 8, 9. The word, “applica-
tion,” appears in numerous other places in the laws govern-
ing federal habeas corpus. E. g., 28 U. S. C. § 2242 (“applica-
tion for a writ of habeas corpus shall be in writing signed
and verified”); § 2243 (a “judge entertaining an application
for a writ of habeas corpus”). In each place, it is clear that
the statute refers to a specific legal document; in none is the
word used as a substitute for the ordinary collateral review
process. Without discussing Artuz or these many statu-
tory references, the Court gives “application” a new mean-
ing, one that does not even require the existence of any docu-
ment evidencing the “application,” and one that embraces
the multiple petitions, appeals, and other filings that consti-
tute the “ordinary state collateral review process.” Ante,
at 219–220.
The Court explains that the original petition in the Cali-
fornia Supreme Court is part of the ordinary collateral re-
view process because it functions as an appeal under Cali-
fornia law. California, the Court says, “does not require,
technically speaking, appellate review of a lower court deter-
mination. Instead it contemplates that a prisoner will file a
new ‘original’ habeas petition.” Ante, at 221. This is an
incorrect statement of California law. While California does
not permit appeals of the California Superior Court’s denial
of habeas corpus, it does provide for “appellate review” of
the denial of a petition for habeas corpus by the California
Court of Appeal. That appeal is not just available; as the
Court concedes, ante, at 224–225, the California Supreme

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230 CAREY v. SAFFOLD
Kennedy, J., dissenting
Court has said that it is the preferred practice. See In re
Reed, 33 Cal. 3d 914, 918, and n. 2, 663 P. 2d 216, 217, and
n. 2 (1983). Section 1506 of the Cal. Penal Code Ann. (West
2000) provides: “[I]n all criminal cases where an application
for a writ of habeas corpus has been heard and determined
in a court of appeal, either the defendant or the people may
apply for a hearing in the Supreme Court.” Respondent
had 10 days after the Court of Appeal denied his petition to
file a petition for review. Cal. App. Rules of Court 28(b),
50(b) (2002). The Court’s analysis is thus premised on a mis-
interpretation of California law.
Had respondent filed the appeal provided by Cal. Penal
Code Ann. § 1506 (West 2000), his application might have re-
mained pending during the 10 days while he prepared his
appeal and while the appeal was under consideration by the
California Supreme Court. This is because an appeal is not
a new application; rather, it is a request that the appellate
court order the lower court to grant the original application.
Congress used the word “application” in precisely this way
for federal petitions for habeas corpus—distinguishing be-
tween “appeals,” see 28 U. S. C. § 2253, and second or suc-
cessive “applications,” see § 2244. Thus, an application may
remain “pending” in the lower court while the prisoner
pursues his appeal, because the lower court may grant the
original application at some point in the future.
An application does not remain pending, however, once the
court that has denied it loses the power to ever grant it.
When the Court of Appeal denied respondent’s petition and
respondent did not appeal, the petition became final and was
no longer pending before that court. See Cal. App. Rule of
Court 24 (2002) (“When a decision of a reviewing court is
final as to that court, it is not thereafter subject to modifica-
tion or rehearing by that court . . .”). Respondent could
not ask the Court of Appeal to grant the application, and
respondent could not request that the California Supreme
Court order the Court of Appeal to grant the application.

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231 Cite as: 536 U. S. 214 (2002)
Kennedy, J., dissenting
Instead respondent filed a new application, a petition for a
writ of habeas corpus, invoking the original jurisdiction of
the California Supreme Court. See Cal. Const., Art. VI,
§ 10 (Supp. 2001). Under California law, the original peti-
tion began a new proceeding that had no proximate connec-
tion to the proceedings in the California Court of Appeal.
See People v. Romero, 8 Cal. 4th 728, 737, 883 P. 2d 388, 391
(1994). The California Supreme Court had no power to
grant the previous petition, and it did not even have the
power to vacate the judgment of the lower state court. See
In re Michael E., 15 Cal. 3d 183, 192–193, n. 15, 538 P. 2d
231, 237, n. 15 (1975). There is no sense in which, before or
after the filing of a petition for an original writ, an applica-
tion remained pending below.
Even if California recognized an original writ as an equiv-
alent procedure to an appeal for purposes of state law, the
two procedures would differ with respect to the federal stat-
utory question in this case. When a prisoner files an appeal,
the original application remains pending in the lower court,
but when a prisoner files an original writ, there is no applica-
tion pending in any lower court. As it turns out, however,
California law does not regard an appeal and an original writ
as equivalents. California recognizes that a prisoner may
obtain relief through either procedure, but the California Su-
preme Court has said an appeal is preferred. In re Reed,
supra, at 918–919, and n. 2, 663 P. 2d, at 217, n. 2. At the
same time, a prisoner may use an original writ in circum-
stances where an appeal is not available. Although Califor-
nia encourages prisoners to exhaust claims in the lower
courts, the claims within an original petition need not be the
same as those presented earlier. E. g., In re Black, 66 Cal.
2d 881, 428 P. 2d 293 (1967); Cal. App. Rule of Court 56(a)(1)
(2002) (directing prisoners to explain why the exhaustion
rule should not apply). Indeed, the California Supreme
Court may grant relief even if the prisoner has not filed any
petition in the lower courts. E. g., In re Moss, 175 Cal. App.

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232 CAREY v. SAFFOLD
Kennedy, J., dissenting
3d 913, 922, 221 Cal. Rptr. 645, 649 (1985). As the new peti-
tion constitutes a new application in form and function, the
California Supreme Court has long recognized what our
Court today refuses to see. After the denial of a habeas
petition, there is no application “pending” in any court:
“Where a petitioner was remanded to custody by a supe-
rior court, and the proceeding instituted in that court
was thus terminated and was no longer a matter pend-
ing therein, he could inaugurate a new proceeding for
relief in another court and can still do so, but is now
limited in the making of a new application by statutory
provision to a higher court, either the district court of
appeal having jurisdiction, or the supreme court.”
In re Zany, 164 Cal. 724, 727, 130 P. 710 (1913).
The petition thus is not pending even under state law: Each
habeas petition is a “new proceeding for relief,” ibid., and is
not the same case, let alone the same application. Each time
a California court denies a petition, the application is “no
longer a matter pending,” ibid., before any court, because it
can no longer be granted by that court or any other court in
the future.
The Court’s contrary conclusion does not depend upon any
reasonable construction of a “pending application.” It de-
pends entirely upon the proposition that when California
says “original writ,” it means “appeal,” and federal courts
must not privilege form over substance. But California pro-
vides for an appeal, see Cal. Penal Code Ann. § 1506 (West
2000), and none was taken here. It is impossible to under-
stand why the Court has ignored this provision by which
California provides for an appeal, just like every other State.
The Court also has ignored the fact that most other States
provide for original writs, just like California. As a conse-
quence, the Court’s error is of substantial significance be-
yond this case; for the California Supreme Court’s original
jurisdiction to issue writs of habeas corpus is not some quirk

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233 Cite as: 536 U. S. 214 (2002)
Kennedy, J., dissenting
of California law. At least 36 other States grant their su-
preme courts original jurisdiction over petitions for habeas
corpus as well as appellate jurisdiction over a habeas deter-
mination in the lower courts. See Appendix, infra. Con-
gress, of course, understands this distinction, since it has
provided both procedures for our own Court. A state pris-
oner seeking to challenge the validity of his sentence may
seek review of a lower court’s decision by filing a petition for
certiorari, 28 U. S. C. § 1257, or he may file a petition for an
original writ of habeas corpus, § 2241. While the prisoner
may obtain relief through either procedure, there is a clear
distinction between an appeal—which requests that we
order the lower court to grant an application pending before
it—and a petition for a writ of habeas corpus—which re-
quests that we grant the relief ourselves. Before this case
no one thought that distinction to be merely one of form and
not substance.
The Court is thus quite mistaken to conclude that its de-
cision concerns only the procedures within California. The
Court distinguishes California from other States because
California “has engrained original writs—both at the appel-
late level and in the supreme court—into its normal collat-
eral review process.” Ante, at 224. This statement is not
correct even for California. See supra, at 231–232. It may
or may not be true for the four other States the Court cites,
but even so the federal courts will have to test that point
for dozens more. The Court’s distinction between “appeal
States” and “original writ States” is its own creation with
no clear meaning under state law, not to mention a tie to
the law Congress has enacted. Having departed from the
sensible meaning of application, and the well-understood dis-
tinction between an appeal and an original writ, the Court
now requires federal courts to define the ordinary collateral
review procedures in each State. It may not be clear in how
many States original writs will fall on the side of the ordi-
nary, but it is clear that the question will be litigated. In

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234 CAREY v. SAFFOLD
Kennedy, J., dissenting
many, if not all, of the States mentioned above, a prisoner
like respondent, relying upon today’s decision, will be able to
extend the federal tolling period, perhaps indefinitely, by fil-
ing a petition for an original writ of habeas corpus in a state
supreme court many months after his state appeal has been
denied. See Welch v. Newland, 267 F. 3d 1013 (CA9 2001)
(tolling the federal limitations for a 4-year gap).
In those jurisdictions the Court will create a strange
anomaly. Now an application can be both pending and not
pending, taking on what the Seventh Circuit has described
as a “Cheshire-cat like quality, both there and not there at
the same time.” Fernandez v. Sternes, 227 F. 3d 977, 980
(2000). If, for instance, the Court’s hypothetical prisoner
declined to file an appeal to the State’s highest court, and he
went to federal court more than a year later, his petition
would be dismissed as time barred. As no application had
been on the docket of any court for a year, and no petition
that he had addressed to any state court could ever be
granted, no “properly filed application” was “pending” any-
where. Under the Court’s view, however, it would be pre-
mature to say that the federal statute of limitations had ex-
pired. The prisoner could file a new petition invoking the
original jurisdiction of the state high court, and if the court
denied it on the merits (or without comment), a subsequent
federal application could be timely even though the earlier
one was too late.
Under today’s ruling, the federal court would be required
to rule that the state petition, which was not pending before,
had retroactively become so, and the prisoner’s new federal
application was timely. This is not a sensible way of deter-
mining when an application is “pending” under the federal
tolling provision. Whether an application is pending at any
given moment should be susceptible of a yes or no answer.
On the Court’s theory the answer will often be “impossible
to tell,” because it depends not on whether an application is

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235 Cite as: 536 U. S. 214 (2002)
Kennedy, J., dissenting
under submission in a particular court but upon events that
may occur at some later time.
The Court’s insistence on treating an original writ as an
appeal will create serious confusion in California—and else-
where—for another reason. Federal courts will have to
determine when an original writ is timely under California
law because on the Court’s holding only timely petitions
cause an application to be (retroactively) pending. The
problem, however, is that an original writ in California—like
original writs elsewhere and unlike appeals in California and
most everywhere else—does not have a strict time limit.
Under California law the question is not whether a petition
is “timely” but whether the prisoner exercised “due dili-
gence” in filing his petition within a reasonable time after he
becomes aware of the grounds for relief. In re Harris, 5
Cal. 4th 813, 828, n. 7, 855 P. 2d 391, 398, n. 7 (1993). This
equitable concept is designed to be flexible, and it allows Cal-
ifornia courts to correct miscarriages of justice, even those
which happened long ago. E. g., In re Stankewitz, 40 Cal.
3d 391, 396, n. 1, 708 P. 2d 1260, 1262, n. 1 (1985) (hearing
the merits despite an 18-month delay); In re Moss, 175 Cal.
App. 3d, at 921, 221 Cal. Rptr., at 648 (hearing the merits
despite a 9-month delay). Nothing about AEDPA suggests
that Congress wanted to inject this degree of unpredictabil-
ity into the 1-year statute of limitations, and it is hard to
see how federal courts are to approach this state-law inquiry.
While there may be cases, like this one, where the Califor-
nia courts expressly deny a petition for lack of diligence, the
California courts routinely deny petitions filed after lengthy
delays without making specific findings of undue delay.
Brief for Respondent 40–41, n. 27. Under the Court’s rule,
federal courts will be required to assess, without clear guid-
ance from state law, whether respondent exercised due dili-
gence. This inquiry will create substantial uncertainty, and
resulting federal litigation, over whether a prisoner had filed
his habeas petition within a reasonable time. The uncer-

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236 CAREY v. SAFFOLD
Kennedy, J., dissenting
tainty may vex prisoners as well, for they cannot know
whether the federal statute of limitations is running while
they prepare their state petitions.
The Court’s disposition in this very case proves that the
timing question is often unanswerable. Even though this is
the rare case where the California Supreme Court made a
specific finding of “lack of diligence,” the Court does not hold
respondent’s petition untimely. Instead, the Court con-
cludes that the lack of diligence finding is ambiguous, be-
cause it might refer, not to respondent’s 4-month delay in
filing his final writ, but to his 5-year delay in pursuing any
collateral relief at all. Ante, at 226. This ambiguity, how-
ever, should not benefit respondent. If the California court
held that all of respondent’s state habeas petitions were
years overdue, then they were not “properly filed” at all, and
there would be no tolling of the federal limitations period.
See Artuz v. Bennett, 531 U. S., at 8. Our consideration
whether respondent’s petition was “pending” presupposes
that it was “properly filed” in the California courts.
The Court takes a different view, but in delivering the
case back to the Court of Appeals, it provides no guidance
for resolving the ambiguity. As the question has been thor-
oughly briefed before our Court, it is difficult to see how the
lower court would resolve it, if we could not. The Court
says that the Court of Appeals might certify a question to
the California Supreme Court, but it gives no indication
what that court might ask. Presumably, it is not suggesting
that in every case where the California Supreme Court is-
sues a summary denial, the Court of Appeals should certify
the factbound question of what it really meant to say.
The Court begins in a hypothetical jurisdiction, and it ends
without answering the question presented. Both points are
telling. By leaving the text of the federal statute behind
and calling California’s procedures something they are not,
the Court has complicated the disposition of the thousands
of petitions filed each year in the federal district courts in

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237 Cite as: 536 U. S. 214 (2002)
Appendix to opinion of Kennedy, J.
California. See U. S. Dept. of Justice, Bureau of Justice Sta-
tistics, Prisoner Petitions Filed in U. S. District Courts, 2000,
with Trends 1980–2000, p. 3 (Jan. 2002) (California state pris-
oners filed 4,017 federal petitions in 2000). The Court also
raises these questions in the numerous jurisdictions that per-
mit original writs in addition to appeals. Applying the clear
words of the statute to the clear law in California would have
been much easier.
I would reverse the judgment of the Court of Appeals.
APPENDIX TO OPINION OF KENNEDY, J.
Ala. Code § 12–2–7(3) (1995); Ariz. Const., Art. VI, § 5(1);
Ark. Const., Art. VII, § 4; Colo. Const., Art. VI, § 3; Fla. Rule
App. Proc. 9.030(a)(3) (2002); Haw. Rev. Stat. § 660–3 (1993);
Idaho Code § 19–4202(1) (Supp. 2001); Ill. Const., Art. VI,
§ 4(a); Iowa Const., Art. V, § 4; Kan. Const., Art. III, § 3; La.
Const., Art. V, § 2; Me. Rev. Stat. Ann., Tit. 14, § 5301 (1980);
Md. Cts. & Jud. Proc. Code Ann. § 3–701 (1974–1998); Mich.
Comp. Laws Ann. § 600.4304(1) (West 2000); Mo. Const.,
Art. V, § 4(1); Mont. Const., Art. VII, § 2(1); Neb. Rev. Stat.
§ 24–204 (1995); Nev. Const., Art. VI, § 4; N. H. Rev. Stat.
Ann. § 490:4 (1997); N. M. Const., Art. VI, § 3; N. C. Gen.
Stat. § 7A–32(a) (1999); N. D. Cent. Code § 27–02–04 (1991);
Ohio Const., Art. IV, § 2; Okla. Const., Art. VII, § 4; Ore.
Const., Art. VII, § 2; 42 Pa. Cons. Stat. § 721(1) (1981); R. I.
Gen. Laws § 8–1–2 (1997); S. C. Code Ann. § 14–3–310 (1977);
S. D. Const., Art. V, § 5 (1978); Tex. Const., Art. V, § 3 (Supp.
2002); Utah Code Ann. § 78–2–2 (2001 Supp.); Vt. Stat. Ann.,
Tit. 4, § 2(b) (1999); Va. Const., Art. VI, § 1; Wash. Rev. Code
§ 2.04.010 (1994); W. Va. Code § 51–1–3 (2000); Wyo. Const.,
Art. V, § 3.