Lawrence v. Florida

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LAWRENCE v. FLORIDA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 05–8820. Argued October 31, 2006—Decided February 20, 2007

The 1-year statute of limitations for seeking federal habeas relief from

a state-court judgment is tolled while an “application for State post-

conviction or other collateral review” “is pending.” 28 U. S. C.

§2244(d)(2). Petitioner Lawrence filed a state postconviction relief

application 364 days after his conviction became final. The trial

court denied relief, the State Supreme Court affirmed, and this Court

denied certiorari. While the certiorari petition was pending, Law

rence filed the present federal habeas application. Then-applicable

Eleventh Circuit precedent foreclosed any argument that the limita

tions period was tolled by the pendency of the certiorari petition.

Thus, the District Court dismissed Lawrence’s application as un

timely because he waited 113 days after the State Supreme Court’s

mandate—well beyond the one day that remained in the limitations

period—to file the application. The Eleventh Circuit affirmed.

Held:

1. Section 2244(d)(2) does not toll the 1-year limitations period dur

ing the pendency of a certiorari petition in this Court. Pp. 3–8.

(a) Read naturally, the statute’s text means that the statute of

limitations is tolled only while state courts review the application. A

state postconviction application “remains pending” “until the applica

tion has achieved final resolution through the State’s postconviction

procedures.” Carey v. Saffold, 536 U. S. 214, 220. This Court is not a

part of those “procedures,” which end when the state courts have fi

nally resolved the application. The application is therefore not

“pending” after the state court’s postconviction review is complete. If

it were, it is difficult to understand how a state prisoner could ex

haust state postconviction remedies without filing a certiorari peti

tion. Yet state prisoners need not petition for certiorari to exhaust

2 LAWRENCE v. FLORIDA

Syllabus

state remedies. Fay v. Noia, 372 U. S. 391, 435–438. Pp. 3–5.

(b) Lawrence argues that §2244(d)(2) should be construed to have

the same meaning as §2244(d)(1)(A), which refers to “the date on

which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.” (Emphasis

added.) While “direct review” has long included review by this Court,

Clay v. United States, 537 U. S. 522, 527–528, §2244(d)(2) refers ex

clusively to “State post-conviction or other collateral review,” lan

guage not easily interpreted to include participation by a federal

court. And although the “time for seeking” direct review includes the

period for filing a certiorari petition, §2244(d)(2) makes no reference

to the “time for seeking” review of a state postconviction court’s

judgment. Instead, it seeks to know when a state review application

is pending. A more analogous statutory provision, §2263(b)(2), con

tains a limitations period that is tolled “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.” Al

though this differs from §2244(d)(2)’s language, the language used in

both sections clearly provides that tolling hinges on the pendency of

state review. This interpretation of §2244(d)(2), results in few practi

cal problems. Because this Court rarely grants review of state post-

conviction proceedings, it is unlikely that a federal district court

would duplicate this Court’s work or analysis. In any event, a dis

trict court concerned about duplication can stay a habeas application

until this Court acts. Even in the extremely rare case in which a

state court grants relief and the State prevails on certiorari, a pris

oner whose subsequent federal habeas petition may be entitled to eq

uitable tolling in light of arguably extraordinary circumstances and

the prisoner’s diligence. See Pace v. DiGuglielmo, 544 U. S. 408, 418,

and n. 8. In contrast to these hypothetical problems, allowing the

statute of limitations to be tolled by certiorari petitions would provide

incentives for state prisoners to file such petitions as a delay tactic,

regardless of the merit of their claims. Pp. 5–8.

2. Assuming, without deciding, that §2244(d)(2) allows for equita

ble tolling, Lawrence falls far short of showing “extraordinary cir

cumstances,” Pace, supra, at 418, necessary to support equitable toll

ing of his otherwise untimely claims. Pp. 8–9.

421 F. 3d 1221, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. GINSBURG, J., filed a

dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

Cite as: 549 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–8820

_________________

GARY LAWRENCE, PETITIONER v. FLORIDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[February 20, 2007]

JUSTICE THOMAS delivered the opinion of the Court.

Congress established a 1-year statute of limitations for

seeking federal habeas corpus relief from a state-court

judgment, 28 U. S. C. §2244(d), and further provided that

the limitations period is tolled while an “application for

State post-conviction or other collateral review” “is pend

ing,” §2244(d)(2). We must decide whether a state appli

cation is still “pending” when the state courts have en

tered a final judgment on the matter but a petition for

certiorari has been filed in this Court. We hold that it is

not.

I

Petitioner Gary Lawrence and his wife used a pipe and

baseball bat to kill Michael Finken. A Florida jury con

victed Lawrence of first-degree murder, conspiracy to

commit murder, auto theft, and petty theft. The trial

court sentenced Lawrence to death. The Florida Supreme

Court affirmed Lawrence’s conviction and sentence on

appeal, and this Court denied certiorari on January 20,

1998. 522 U. S. 1080.

On January 19, 1999, 364 days later, Lawrence filed an

application for state postconviction relief in a Florida trial

2 LAWRENCE v. FLORIDA

Opinion of the Court

court.1 The court denied relief, and the Florida Supreme

Court affirmed, issuing its mandate on November 18,

2002. See Lawrence v. State, 831 So. 2d 121 (per curiam).

Lawrence sought review of the denial of state postconvic

tion relief in this Court. We denied certiorari on March

24, 2003. 538 U. S. 926.

While Lawrence’s petition for certiorari was pending, he

filed the present federal habeas application. The Federal

District Court dismissed it as untimely under §2244(d)’s 1

year limitations period. All but one day of the limitations

period had lapsed during the 364 days between the time

Lawrence’s conviction became final and when he filed for

state postconviction relief. The limitations period was

then tolled while the Florida courts entertained his state

application. After the Florida Supreme Court issued its

mandate, Lawrence waited another 113 days—well be

yond the one day that remained in the limitations period—

to file his federal habeas application. As a consequence,

his federal application could be considered timely only if

the limitations period continued to be tolled during this

Court’s consideration of his petition for certiorari. Then-

applicable Eleventh Circuit precedent foreclosed any

argument that §2244’s statute of limitations was tolled by

the pendency of a petition for certiorari seeking review of a

state postconviction proceeding. See Coates v. Byrd, 211

F. 3d 1225, 1227 (2000) (per curiam). Accordingly, the

District Court concluded that Lawrence had only one day

——————

1 Lawrence contends that delays in Florida’s program for appointing

postconviction counsel and other issues outside of his control caused

298 days to pass before Florida appointed an attorney who took an

active role in his postconviction case. These facts have little relevance

to our analysis. Lawrence did not seek certiorari on the question

whether these facts entitle him to equitable tolling. Indeed, Lawrence

was able to file his state postconviction petition on time in spite of these

delays. And before this Court, he argues that his attorney mistakenly

missed the federal habeas deadline, not that he lacked adequate time to

file a federal habeas application.

Cite as: 549 U. S. ____ (2007) 3

Opinion of the Court

to file a federal habeas application after the Florida Su

preme Court issued its mandate. The Eleventh Circuit

affirmed. 421 F. 3d 1221 (2005). We granted certiorari,

547 U. S. ___ (2006), and now affirm.

II

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 110 Stat. 1214, sets a one-year statute of

limitations for seeking federal habeas corpus relief from a

state-court judgment. 28 U. S. C. §2244(d)(1). This limi

tations period is tolled while a state prisoner seeks post-

conviction relief in state court:

“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.” §2244(d)(2).

Based on this provision, the parties agree that AEDPA’s

limitations period was tolled from the filing of Lawrence’s

petition for state postconviction relief until the Florida

Supreme Court issued its mandate affirming the denial of

that petition. At issue here is whether the limitations

period was also tolled during the pendency of Lawrence’s

petition for certiorari to this Court seeking review of the

denial of state postconviction relief. If it was tolled, Law

rence’s federal habeas application was timely. So we must

decide whether, according to §2244(d)(2), an “application

for State post-conviction or other collateral review” “is

pending” while this Court considers a certiorari petition.2

Read naturally, the text of the statute must mean that

——————

2 We have previously held that the word “State” modifies both the

terms “post-conviction” and “other collateral review.” Duncan v.

Walker, 533 U. S. 167, 172–174 (2001). The question, therefore, is

whether “an application for State post-conviction or other [State]

collateral review . . . is pending.” §2244(d)(2) (emphasis added).

4 LAWRENCE v. FLORIDA

Opinion of the Court

the statute of limitations is tolled only while state courts

review the application. As we stated in Carey v. Saffold,

536 U. S. 214, 220 (2002) (internal quotation marks omit

ted), a state postconviction application “remains pending”

“until the application has achieved final resolution

through the State’s postconviction procedures.” This

Court is not a part of a “State’s post-conviction proce

dures.” State review ends when the state courts have

finally resolved an application for state postconviction

relief. After the State’s highest court has issued its man

date or denied review, no other state avenues for relief

remain open. And an application for state postconviction

review no longer exists. All that remains is a separate

certiorari petition pending before a federal court. The

application for state postconviction review is therefore not

“pending” after the state court’s postconviction review

is complete, and §2244(d)(2) does not toll the 1-year limi

tations period during the pendency of a petition for

certiorari.

If an application for state postconviction review were

“pending” during the pendency of a certiorari petition in

this Court, it is difficult to understand how a state pris

oner could exhaust state postconviction remedies without

filing a petition for certiorari. Indeed, AEDPA’s exhaus

tion provision and tolling provision work together:

“The tolling provision of §2244(d)(2) balances the in

terests served by the exhaustion requirement and the

limitation period. . . . Section 2244(d)(1)’s limitation

period and §2244(d)(2)’s tolling provision, together

with §2254(b)’s exhaustion requirement, encourage

litigants first to exhaust all state remedies and then to

file their federal habeas petitions as soon as possible.”

Duncan v. Walker, 533 U. S. 167, 179, 181 (2001) (fi

nal emphasis added).

Yet we have said that state prisoners need not petition for

Cite as: 549 U. S. ____ (2007) 5

Opinion of the Court

certiorari to exhaust state remedies. Fay v. Noia, 372

U. S. 391, 435–438 (1963); County Court of Ulster Cty. v.

Allen, 442 U. S. 140, 149–150, n. 7 (1979). State remedies

are exhausted at the end of state-court review. Fay, su

pra, at 435–438; Allen, supra, at 149–150, n. 7.

Lawrence argues that §2244(d)(2) should be construed

to have the same meaning as §2244(d)(1)(A), the trigger

provision that determines when AEDPA’s statute of limi

tations begins to run. But §2244(d)(1)(A) uses much dif

ferent language from §2244(d)(2), referring to “the date on

which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review.” §2244(d)(1)(A) (emphasis added). When inter

preting similar language in §2255, we explained that

“direct review” has long included review by this Court.

Clay v. United States, 537 U. S. 522, 527–528 (2003).

Indeed, we noted that “[t]he Courts of Appeals have uni

formly interpreted ‘direct review’ in §2244(d)(1)(A) to

encompass review of a state conviction by this Court.” Id.,

at 528, n. 3 (collecting cases). By contrast, §2244(d)(2)

refers exclusively to “State post-conviction or other collat

eral review,” language not easily interpreted to include

participation by a federal court.

Furthermore, §2244(d)(1)(A) refers to the “time for

seeking” direct review, which includes review by this

Court under Clay. By parity of reasoning, the “time for

seeking” review of a state postconviction judgment argua

bly would include the period for filing a certiorari petition

before this Court. However, §2244(d)(2) makes no refer

ence to the “time for seeking” review of a state postconvic

tion court’s judgment. Instead, it seeks to know when an

application for “State . . . review” is pending. The linguis

tic difference is not insignificant: When the state courts

have issued a final judgment on a state application, it is

no longer pending even if a prisoner has additional time

for seeking review of that judgment through a petition for

6 LAWRENCE v. FLORIDA

Opinion of the Court

certiorari.

A more analogous statutory provision is §2263(b)(2),

which is part of AEDPA’s “opt-in” provisions for States

that comply with specific requirements relating to the

provision of postconviction counsel. Under §2263, the

limitations period is tolled “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.” §2263(b)(2). Lawrence concedes that under this

language there would be no tolling for certiorari petitions

seeking review of state postconviction applications. And

although he correctly notes that the language in §2263

differs from the language of §2244(d)(2), it is clear that the

language used in both sections provides that tolling hinges

on the pendency of state review. See §2263(b)(2) (“until

the final State court disposition of such petition”);

§2244(d)(2) (“a properly filed application for State post-

conviction or other collateral review . . . is pending”).

Given Congress’ clear intent in §2263 to provide tolling for

certiorari petitions on direct review but not for certiorari

petitions following state postconviction review, it is not

surprising that Congress would make the same distinction

in §2244.

Lawrence also argues that our interpretation would

result in awkward situations in which state prisoners

have to file federal habeas applications while they have

certiorari petitions from state postconviction proceedings

pending before this Court. But these situations will also

arise under the express terms of §2263, and Lawrence

admits that Congress intended that provision to preclude

tolling for certiorari petitions. Brief for Petitioner 22.

Because Congress was not concerned by this potential for

awkwardness in §2263, there is no reason for us to con

strue the statute to avoid it in §2244(d)(2).

Contrary to Lawrence’s suggestion, our interpretation of

§2244(d)(2) results in few practical problems. As JUSTICE

Cite as: 549 U. S. ____ (2007) 7

Opinion of the Court

STEVENS has noted, “this Court rarely grants review at

this stage of the litigation even when the application for

state collateral relief is supported by arguably meritorious

federal constitutional claims,” choosing instead to wait for

“federal habeas proceedings.” Kyles v. Whitley, 498 U. S.

931, 932 (1990) (opinion concurring in denial of stay of

execution). Thus, the likelihood that the District Court

will duplicate work or analysis that might be done by this

Court if we granted certiorari to review the state postcon

viction proceeding is quite small. And in any event, a

district court concerned about duplicative work can stay

the habeas application until this Court resolves the case

or, more likely, denies the petition for certiorari.

Lawrence argues that even greater anomalies result

from our interpretation when the state court grants relief

to a prisoner and the state petitions for certiorari. In that

hypothetical, Lawrence maintains that the prisoner would

arguably lack standing to file a federal habeas application

immediately after the state court’s judgment (because the

state court granted him relief) but would later be time

barred from filing a federal habeas application if we

granted certiorari and the State prevailed. Again, this

particular procedural posture is extremely rare. Even so,

equitable tolling may be available, in light of the arguably

extraordinary circumstances and the prisoner’s diligence.

See Pace v. DiGuglielmo, 544 U. S. 408, 418, and n. 8

(2005).3 We cannot base our interpretation of the statute

on an exceedingly rare inequity that Congress almost

certainly was not contemplating and that may well be

cured by equitable tolling.

In contrast to the hypothetical problems identified by

Lawrence, allowing the statute of limitations to be tolled

by certiorari petitions would provide incentives for state

prisoners to file certiorari petitions as a delay tactic. By

——————

3 As discussed below, we assume, as the parties do, the availability of

equitable tolling under §2244.

8 LAWRENCE v. FLORIDA

Opinion of the Court

filing a petition for certiorari, the prisoner would push

back §2254’s deadline while we resolved the petition for

certiorari. This tolling rule would provide an incentive for

prisoners to file certiorari petitions—regardless of the

merit of the claims asserted—so that they receive addi

tional time to file their habeas applications.

III

Lawrence also argues that equitable tolling applies to

his otherwise untimely claims. We have not decided

whether §2244(d) allows for equitable tolling. See ibid.

Because the parties agree that equitable tolling is avail

able, we assume without deciding that it is. To be entitled

to equitable tolling, Lawrence must show “(1) that he has

been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way” and pre

vented timely filing. Id., at 418.

Lawrence makes several arguments in support of his

contention that equitable tolling applies to his case. First,

he argues that legal confusion about whether AEDPA’s

limitations period is tolled by certiorari petitions justifies

equitable tolling. But at the time the limitations period

expired in Lawrence’s case, the Eleventh Circuit and every

other Circuit to address the issue agreed that the limita

tions period was not tolled by certiorari petitions. See,

e.g., Coates, 211 F. 3d, at 1227. The settled state of

the law at the relevant time belies any claim to legal

confusion.

Second, Lawrence argues that his counsel’s mistake in

miscalculating the limitations period entitles him to equi

table tolling. If credited, this argument would essentially

equitably toll limitations periods for every person whose

attorney missed a deadline. Attorney miscalculation is

simply not sufficient to warrant equitable tolling, particu

larly in the postconviction context where prisoners have

no constitutional right to counsel. E.g., Coleman v.

Cite as: 549 U. S. ____ (2007) 9

Opinion of the Court

Thompson, 501 U. S. 722, 756–757 (1991).

Third, Lawrence argues that his case presents special

circumstances because the state courts appointed and

supervised his counsel. But a State’s effort to assist pris

oners in postconviction proceedings does not make the

State accountable for a prisoner’s delay. Lawrence has not

alleged that the State prevented him from hiring his own

attorney or from representing himself. It would be per

verse indeed if providing prisoners with postconviction

counsel deprived States of the benefit of the AEDPA stat

ute of limitations. See, e.g., Duncan, 533 U. S., at 179

(“The 1-year limitation period of §2244(d)(1) quite plainly

serves the well-recognized interest in the finality of state

court judgments”).

Fourth, Lawrence argues that his mental incapacity

justifies his reliance upon counsel and entitles him to

equitable tolling. Even assuming this argument could be

legally credited, Lawrence has made no factual showing of

mental incapacity. In sum, Lawrence has fallen far short

of showing “extraordinary circumstances” necessary to

support equitable tolling.

IV

The Court of Appeals correctly determined that the

filing of a petition for certiorari before this Court does not

toll the statute of limitations under §2244(d)(2). It also

correctly declined to equitably toll the limitations period in

the factual circumstances of Lawrence’s case. For these

reasons, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Cite as: 549 U. S. ____ (2007) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–8820

_________________

GARY LAWRENCE, PETITIONER v. FLORIDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[February 20, 2007]

JUSTICE GINSBURG with whom JUSTICE STEVENS,

JUSTICE SOUTER, and JUSTICE BREYER join, dissenting.

The Court today concludes that an application for state

postconviction review “no longer exists”—and therefore is

not “pending”—once it has been decided by a State’s high

est court. Ante, at 4. What remains, the majority reasons,

is a “separate” certiorari proceeding pending before this

Court. Ibid. But petitions for certiorari do not exist in a

vacuum; they arise from actions instituted in lower courts.

When we are asked to review a state court’s denial of

habeas relief, we consider an application for that relief—

not an application for federal habeas relief. Until we have

disposed of the petition for certiorari, the application

remains live as one for state postconviction relief; it is not

transformed into a federal application simply because the

state-court applicant petitions for this Court’s review.1

I would therefore hold that 28 U. S. C. §2244(d)’s statute

of limitations is tolled during the pendency of a petition

——————

1 It is unclear just what the majority thinks we are considering when

we address a state habeas petition on certiorari. We are certainly not

deciding a petition for federal habeas relief. See 28 U. S. C. §2254

(authorizing applications by persons in state custody for federal habeas

review). And though we can entertain original habeas petitions, see

Felker v. Turpin, 518 U. S. 651, 660 (1996), a petition for certiorari from

a state-court judgment does not fall within that category.

2 LAWRENCE v. FLORIDA

GINSBURG, J., dissenting

for certiorari.2 Congress instructed that the one-year

limitation period for filing a habeas petition in the appro

priate federal district court does not include “[t]he time

during which a properly filed application for State post-

conviction or other collateral review . . . is pending.”

§2244(d)(2). That provision can and should be read to

continue statutory tolling until this Court has either

decided or denied a petition for certiorari addressed to the

state court’s disposition of an application for postconvic

tion relief. See Carey v. Saffold, 536 U. S. 214, 219–220

(2002) (“pending” means “in continuance” or “not yet

decided” (internal quotation marks omitted)). The major

ity’s contrary reading of §2244(d)(2) cuts short the tolling

period before this Court has had an opportunity to con

sider an application for state postconviction relief. That

reading, I conclude, is neither a necessary nor a proper

interpretation of the statute.

I

Two other provisions in the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 110 Stat. 1217, 1223,

§§2244(d)(1) and 2263(b)(2)—bear on the proper interpre

tation of §2244(d)(2). The first of these, §2244(d)(1)(A),

tells us when AEDPA’s statute of limitations begins to

run; it states that the trigger is the “the date on which the

judgment [of conviction] became final by the conclusion of

direct review or the expiration of the time for seeking such

review.” Congress thus explicitly ordered that the clock

starts, following a state conviction, when the time to file a

petition for certiorari expires or, if a petition is filed, when

——————

2 I would not reach in this proceeding cases in which a petitioner does

not seek certiorari review of the state court’s judgment—i.e., cases

presenting the question whether tolling ends with the decision of the

State’s highest court or with the expiration of the time to file a petition

for certiorari. That question is not presented here, for Lawrence timely

sought this Court’s review of the denial of state postconviction relief.

Cite as: 549 U. S. ____ (2007) 3

GINSBURG, J., dissenting

it is decided or denied. See Clay v. United States, 537

U. S. 522, 527–529, and n. 3 (2003).

According to the majority, §2244(d)(2) cannot be inter

preted similarly to encompass this Court’s review because

the text of that provision “refers exclusively to ‘State post-

conviction or other collateral review.’ ” Ante, at 5 (empha

sis in original). In fact, §2244(d)(2) refers to an “applica

tion for State post-conviction or other collateral review.”

(Emphasis added.) And it tolls the limitation period while

the application is “pending,” not while it is “pending in

State court.” See §2244(d)(2). Just as a judgment of con

viction is not “final” until we have declined review or

decided the case on the merits, see Clay, 537 U. S., at 527–

530 (interpreting §2255), so an application for state ha

beas relief is sensibly understood to remain “pending”

until we have disposed of the case. It is a fundamental

characteristic of our federal system that this Court has

appellate jurisdiction over state-court decisions implicat

ing federal law or the Constitution. Until we have exer

cised that jurisdiction or declined to do so the case is not

finally decided. See supra, at 1, and n. 1.3

In support of its opposing view, the majority emphasizes

that §2244(d)(2) does not include the words “time for

seeking . . . review,” words included in §2244(d)(1)(A).

This difference in phrasing, the majority reasons, indi

cates that Congress intended to cut off tolling as soon as

the highest state court renders its judgment, well before a

petition for review is filed in this Court.4 But the wording

——————

3 The majority inappropriately relies on Carey v. Saffold, 536 U. S.

214, 220 (2002), for the proposition that a state postconviction applica

tion remains pending only until the State’s postconviction procedures

are complete. Ante, at 4. Though Carey affirmed that tolling continues

throughout the State’s own postconviction procedures, it did not hold

that (or even consider whether) the time for seeking certiorari from this

Court was excluded from the tolling period.

4 Notably, in Clay v. United States, 537 U. S. 522, 527–530 (2003), we

4 LAWRENCE v. FLORIDA

GINSBURG, J., dissenting

of §2244(d)(2), I am persuaded, is more appropriately

contrasted with §2263(b)(2), which prescribes a parallel

tolling rule for “opt-in” capital cases. Section 2263(b)(2),

unlike the provision at issue here, leaves no doubt that

Congress intended to exclude from the tolling period the

time for filing a petition for certiorari. It provides that the

statute of limitations tolls “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.” (Emphasis added.) Section 2263(b)(2) thus

demonstrates that when Congress wanted to cut off tolling

immediately upon the final state court decision—i.e., to

exclude this Court’s review from the tolling period—it

simply said so.

One can understand why Congress might have chosen

an uncommon rule for the special capital cases covered by

§§2261–2263, a separate chapter of the statute. By termi

nating tolling upon final state-court disposition, rather

than extending the period during the pendency of a certio

rari petition, Congress eliminated one source of delay in

implementing the death penalty. But Congress provided

that the shortened tolling period would apply only to

petitions brought by prisoners in States that have estab

lished a mechanism for providing counsel in postconviction

proceedings. See §2261. An attorney, of course, is better

equipped than a pro se petitioner to clear procedural hur

dles, including shortened timelines.5 Given the excep

——————

rejected the contention that the absence of the phrase “time for seeking

. . . review” from another provision changed the meaning of “final.”

Section 2255, ¶6(1), refers simply to “the date on which the judgment of

conviction becomes final” and not to “the date on which the judgment

became final by the conclusion of direct review or the expiration of the

time for seeking such review.” Nevertheless, we held that a judgment

of conviction becomes final when the time expires for filing a petition

for certiorari. Id., at 525, 528.

5 Matching §2263(b)(2)’s abbreviated tolling period, §2263(a) provides

for a shorter statute of limitations. Compare §2244(d)(1) (“A 1-year

Cite as: 549 U. S. ____ (2007) 5

GINSBURG, J., dissenting

tional character of the opt-in category, §2244(d)(2) is more

appropriately aligned with §2244(d)(1)(A), the provision

immediately preceding it, than with §2263(b)(2).

The majority maintains that if an application for state

postconviction review were considered to be “pending”

while a certiorari petition remained before this Court,

then a state prisoner could not exhaust state postconvic

tion remedies without filing a petition for certiorari. Ante,

at 4–5. But exhaustion and tolling serve discrete func

tions and need not be synchronized. The former is a pre

requisite to filing for habeas relief in federal court. Ex

haustion promotes principles of comity and federalism by

giving state courts the first opportunity to adjudicate

claims of state prisoners; that doctrine, however, does not

necessitate this Court’s review of the state court’s deter

mination. See O’Sullivan v. Boerckel, 526 U. S. 838, 844

(1999) (“Comity . . . dictates that when a prisoner alleges

that his continued confinement for a state court conviction

violates federal law, the state courts should have the first

opportunity to review this claim and provide any neces

sary relief.”). Tolling, in contrast, concerns the time

within which a procedural move must be made, not the

issues that must be raised before a particular tribunal.

And while one purpose of tolling is to allow adequate time

for exhaustion, that is not the sole objective. Tolling in the

context here involved also protects a litigant’s ability to

pursue his or her federal claims in a federal forum and

avoids simultaneous litigation in more than one court—

objectives undercut by today’s decision. See infra, at 6–8.

Duncan v. Walker, 533 U. S. 167 (2001), does not sug

gest a different result. Cf. ante, at 4. In Duncan, we held

that a federal habeas petition does not toll §2244(d)(1)’s

——————

period of limitation shall apply to an application for a writ of habeas

corpus . . . .”) with §2263(a) (establishing a 180-day period of

limitation).

6 LAWRENCE v. FLORIDA

GINSBURG, J., dissenting

limitation period because “an application for federal ha

beas corpus review is not an application for State post-

conviction or other collateral review within the meaning of

28 U. S. C. §2244(d)(2).” 533 U. S., at 181 (internal quota

tion marks omitted). But, unlike a federal habeas peti

tion, an application for state habeas review undoubtedly is

“an application for State post-conviction review.” This is

so whether the application is under review in a state

appellate court or is the subject of a petition seeking cer

tiorari from this Court.

II

Not only is the majority’s reading of §2244(d)(2) unwar

ranted, it will also spark the simultaneous filing of two

pleadings seeking essentially the same relief. A petitioner

denied relief by a State’s highest court will now have to

file, contemporaneously, a petition for certiorari in this

Court and a habeas petition in federal district court. Only

by expeditiously filing for federal habeas relief will a

prisoner ensure that the limitation period does not run

before we have disposed of his or her petition for certio

rari. Protective petitions will be essential, too, when we

grant review of a state court’s ruling on a state habeas

petition, for many months can elapse between the date we

agree to hear a case and the date we issue an opinion.6

Consequently, the same claims will be pending in two

courts at once, and the duplication will occasion adminis

trative problems; for example, no decision, law, or rule

tells us in which court the record in the case should be

lodged. See this Court’s Rule 12, ¶7 (“The clerk of the

court having possession of the record shall keep it until

notified by the Clerk of this Court to certify and transmit

——————

6 See,

e.g., Sanchez-Llamas v. Oregon, 548 U. S. ___ (2006) (certiorari

petition filed on June 7, 2005, and decided 386 days later on June 28,

2006); Deck v. Missouri, 544 U. S. 622 (2005) (certiorari petition filed on

July 15, 2004, and decided 312 days later on May 23, 2005).

Cite as: 549 U. S. ____ (2007) 7

GINSBURG, J., dissenting

it.”). There is no indication that Congress intended to

burden the court system or litigants with such premature

filings.7

The anticipatory filing in a federal district court will be

all the more anomalous when a habeas petitioner prevails

in state court and the State petitions for certiorari. Under

the majority’s decision, it appears, the petitioner will be

obliged to file a protective petition in federal court even

though he gained relief from the state tribunal. Lawrence

questions whether the federal courts would even have

jurisdiction over such a bizarre petition. See ante, at 7.

While I incline to the view that a prisoner in such a posi

tion would have standing, Lawrence’s concerns are at least

plausible and raise the specter of a habeas petitioner

prevailing in state court, yet losing the right to pursue

constitutional claims in federal court altogether: By the

time we have ruled on the State’s petition, the statute of

limitations likely would have run.

——————

7 The majority regards the practical problems as inconsequential for

we rarely grant certiorari in state habeas proceedings. Ante, at 6–7.

For this proposition, the Court cites a pre-AEDPA case in which

JUSTICE STEVENS noted that federal habeas proceedings were generally

the more appropriate avenue for our consideration of federal constitu

tional claims. See Kyles v. Whitley, 498 U. S. 931, 932 (1990) (opinion

concurring in denial of stay of execution). Since AEDPA, however, our

consideration of state habeas petitions has become more pressing.

Under AEDPA’s standard of review, a petitioner who has suffered a

violation of a constitutional right will nonetheless fail on federal habeas

unless the state court’s decision “was contrary to, or involved an unrea

sonable application of, clearly established Federal law, as determined

by [this] Court,” §2254(d)(1), or “was based on an unreasonable deter

mination of the facts,” §2254(d)(2). Even if rare, the importance of our

review of state habeas proceedings is evident. See, e.g., Deck, 544 U. S.,

at 624 (granting review of state habeas petition and holding that the

Constitution forbids the use of visible shackles during guilt and penalty

phase unless justified by an essential state interest); Roper v. Simmons,

543 U. S. 551, 578 (2005) (granting review of state habeas petition and

holding that execution of individuals under age of 18 is prohibited by

the Eighth and Fourteenth Amendments).

8 LAWRENCE v. FLORIDA

GINSBURG, J., dissenting

Though recognizing this problem, the majority suggests

that equitable tolling may provide a solution. But in the

next breath, the majority hastens to clarify that the Court

does not hold that equitable tolling is available under

AEDPA. Ante, at 7–8, and n. 3.8

By contrast, no similar problems, practical or jurisdic

tional, would result from a determination that an applica

tion for state postconviction review remains “pending”

while a petition for certiorari from the state court’s deci

sion is before this Court. Nor would such a determination

create an untoward opportunity for abuse of the writ. The

majority’s suggestion that prisoners would have an incen

tive to petition for certiorari as a delay tactic has no basis

in reality in the mine run of cases. Most prisoners want to

be released from custody as soon as possible, not to pro

long their incarceration. They are therefore interested in

the expeditious resolution of their claims.9

As earlier indicated, see supra, at 6–7, under the major

ity’s rule, a petitioner could achieve the equivalent of

tolling by filing a protective petition in federal court and

seeking a stay while a certiorari petition is pending. See

ante, at 7; cf. Rhines v. Weber, 544 U. S. 269, 278–279

(2005) (a prisoner seeking state postconviction relief may

file a protective petition in federal court and ask the court

to stay and abey the federal proceedings until state reme

dies are exhausted). In that event, today’s decision does

nothing to promote the finality of state-court determina

tions or the expeditious resolution of claims. Rather, it

imposes an unnecessary administrative burden on federal

district judges who must determine whether to grant a

requested stay, and it sets a trap for those pro se litigants

——————

8 Satisfied that statutory tolling covers this case, I do not address

petitioner’s alternative argument for equitable tolling.

9 Though capital petitioners may be aided by delay, they are a small

minority of all petitioners. In this case, moreover, there is no indication

that Lawrence was intentionally dilatory. See ante, at 2, n. 1.

Cite as: 549 U. S. ____ (2007) 9

GINSBURG, J., dissenting

unaware of the need to file duplicative petitions.

In sum, the majority’s reading is neither compelled by

the text of §2244(d)(2) nor practically sound. By cutting

off tolling before this Court has had an opportunity to

consider a pending petition for certiorari, the Court’s

holding will unnecessarily encumber the federal courts

with anticipatory filings and deprive unwitting litigants of

the opportunity to pursue their constitutional claims—all

without furthering the purposes of AEDPA.

* * *

For the reasons stated, I would hold that petitioner

Lawrence qualifies for statutory tolling under §2244(d)(2),

and would therefore reverse the Eleventh Circuit’s judg

ment.