Gonzalez v. Thaler

(Slip Opinion) OCTOBER TERM, 2011 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

GONZALEZ v. THALER, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 10–895. Argued November 2, 2011—Decided January 10, 2012

After the intermediate state appellate court affirmed his state-court

conviction, petitioner Gonzalez allowed his time for seeking discre-

tionary review with the State’s highest court for criminal appeals to

expire. Roughly six weeks later, the intermediate state appellate

court issued its mandate. When Gonzalez subsequently sought fed-

eral habeas relief, the District Court dismissed Gonzalez’s petition as

time barred by the 1-year statute of limitations in the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Under 28 U. S. C.

§2244(d)(1)(A), state prisoners have one year to file federal habeas

petitions running from “the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for

seeking such review.” The District Court held that Gonzalez’s judg-

ment had become “final” when his time for seeking discretionary re-

view in the State’s highest court expired, and that running the limi-

tations period from that date, his petition was untimely.

Under AEDPA, a habeas petitioner must obtain a certificate of ap-

pealability (COA) to appeal a district court’s final order in a habeas

proceeding. 28 U. S. C. §2253(c)(1). The COA may issue only if the

petitioner has made a “substantial showing of the denial of a consti-

tutional right,” §2253(c)(2), and “shall indicate which specific issue”

satisfies that showing, §2253(c)(3). A Fifth Circuit judge granted

Gonzalez a COA on the question whether his petition was timely.

The issued COA, however, failed to “indicate” a constitutional issue.

The Fifth Circuit affirmed, holding that Gonzalez’s petition was

untimely because the limitations period begins to run for petitioners

who fail to appeal to a State’s highest court when the time for seeking

2 GONZALEZ v. THALER

Syllabus

further direct review in the state court expires. The Fifth Circuit did

not mention, and the State did not raise, the §2253(c)(3) defect.

When Gonzalez petitioned this Court for review, the State argued for

the first time that the Fifth Circuit lacked jurisdiction to adjudicate

Gonzalez’s appeal based on the §2253(c)(3) defect.

Held:

1. Section 2253(c)(3) is a mandatory but nonjurisdictional rule. A

COA’s failure to “indicate” a constitutional issue does not deprive a

Court of Appeals of jurisdiction to adjudicate the appeal. Pp. 4−13.

(a) A rule is jurisdictional “[i]f the Legislature clearly states that

a threshold limitation on a statute’s scope shall count as jurisdiction-

al,” Arbaugh v. Y & H Corp., 546 U. S. 500, 515. Here, the only clear

jurisdictional language in §2253(c) appears in §2253(c)(1). The par-

ties agree that §2253(c)(1)’s plain terms make the issuance of a COA

a jurisdictional prerequisite. The parties also agree that §2253(c)(2),

which speaks only to when a COA may issue and does not contain

§2253(c)(1)’s jurisdictional terms, is nonjurisdictional. It follows that

§2253(c)(3) is also nonjurisdictional. Like §2253(c)(2), it reflects a

threshold condition for issuing a COA, and “does not speak in juris-

dictional terms or refer . . . to the jurisdiction of the [appeals] courts.”

Arbaugh, 546 U. S., at 515. Jurisdictional treatment also would

thwart Congress’s intent in AEDPA “to eliminate delays in the feder-

al habeas review process.” Holland v. Florida, 560 U. S. ___, ___.

Once a judge has determined that a COA is warranted and resources

are deployed in briefing and argument, the COA has fulfilled its

gatekeeping function. Pp. 4−9.

(b) The State’s contrary arguments are unpersuasive. Section

2253(c)(3)’s cross-reference to §2253(c)(1) does not mean §2253(c)(3)

can be read as part of §2253(c)(1), as Congress set off the require-

ments in distinct paragraphs with distinct terms. The word “shall” in

§2253(c)(3), meanwhile, underscores the rule’s mandatory nature, but

not all mandatory rules are jurisdictional. Nor does §2253(c)(3)’s

mere proximity to other jurisdictional provisions turn a rule that

speaks in nonjurisdictional terms into a jurisdictional hurdle. Final-

ly, the Court rejects the State’s attempt to analogize a COA to a no-

tice of appeal. Pp. 10−13.

2. For a state prisoner who does not seek review in a State’s high-

est court, the judgment becomes “final” for purposes of §2244(d)(1)(A)

on the date that the time for seeking such review expires. Pp. 13−19.

(a) In Clay v. United States, 537 U. S. 522, the Court held that a

federal conviction becomes final “when this Court affirms a conviction

on the merits on direct review or denies a petition for a writ of certio-

rari,” or, if a petitioner does not seek certiorari, “when the time for fil-

ing a certiorari petition expires.” Id., at 527. In Jimenez v. Quarter-

Cite as: 565 U. S. ____ (2012) 3

Syllabus

man, 555 U. S. 113, the Court adopted Clay’s “most natural reading

of the statutory text” in construing “the similar language of

§2244(d)(1)(A).” Id., at 119. The Court made no mention of when

Jimenez’s appeal concluded and held that his judgment became final

when his time for seeking certiorari expired. Section 2244(d)(1)(A)

thus consists of two prongs corresponding to two categories of peti-

tioners. For petitioners pursuing direct review all the way to this

Court, the judgment becomes final at the “conclusion of direct re-

view,” when this Court affirms a conviction on the merits or denies

certiorari. For all other petitioners, the judgment becomes final at

the “expiration of the time for seeking such review,” when the time

for pursuing direct review in this Court, or in state court, expires.

Because Gonzalez did not appeal to the State’s highest court, his

judgment became final when his time for seeking review with that

court expired. Pp. 13–15.

(b) Gonzalez argues that courts should determine both prongs for

every petitioner who does not seek certiorari, then start the 1-year

clock from the latest of the two dates. Gonzalez further contends that

when a petitioner does not seek certiorari, state law should define the

“conclusion of direct review.” The words “latest of,” however, appear

in §2244(d)(1), not §2244(d)(1)(A). Nothing in §2244(d)(1)(A) contem-

plates any conflict between the two prongs or instructs that the later

of the two shall prevail. Gonzalez’s approach of scouring each State’s

laws and cases to determine how the State defines finality, moreover,

would contradict the uniform meaning of “conclusion of direct review”

that Clay and Jimenez accepted. It will be a rare situation in which a

delay in the mandate’s issuance is so severe as to prevent a petitioner

from filing a federal habeas petition within a year or requesting a

stay and abeyance. Finally, the Court rejects Gonzalez’s alternative

argument that his petition is timely because it was filed within a

year of when his time for seeking certiorari review expired. Pp.

15−19.

623 F. 3d 222, affirmed.

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

C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN,

JJ., joined. SCALIA, J., filed a dissenting opinion.

Cite as: 565 U. S. ____ (2012) 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. 10–895

_________________

RAFAEL ARRIAZA GONZALEZ, PETITIONER v. RICK

THALER, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[January 10, 2012]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

This case interprets two provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). The

first, 28 U. S. C. §2253(c), provides that a habeas peti-

tioner must obtain a certificate of appealability (COA) to

appeal a federal district court’s final order in a habeas

proceeding. §2253(c)(1). The COA may issue only if the

petitioner has made a “substantial showing of the denial of

a constitutional right,” §2253(c)(2), and “shall indicate

which specific issue” satisfies that showing. §2253(c)(3).

We hold that §2253(c)(3) is not a jurisdictional require-

ment. Accordingly, a judge’s failure to “indicate” the

requisite constitutional issue in a COA does not deprive a

court of appeals of subject-matter jurisdiction to adjudi-

cate the habeas petitioner’s appeal.

The second provision, 28 U. S. C. §2244(d)(1)(A), estab-

lishes a 1-year limitations period for state prisoners to file

federal habeas petitions, running from “the date on which

the judgment became final by the conclusion of direct

2 GONZALEZ v. THALER

Opinion of the Court

review or the expiration of the time for seeking such re-

view.” We hold that, for a state prisoner who does not

seek review in a State’s highest court, the judgment be-

comes “final” on the date that the time for seeking such

review expires.

I

Petitioner Rafael Gonzalez was convicted of murder in

Texas state court. The intermediate state appellate court,

the Texas Court of Appeals, affirmed Gonzalez’s conviction

on July 12, 2006. Gonzalez then allowed his time for

seeking discretionary review with the Texas Court of

Criminal Appeals (Texas CCA)—the State’s highest court

for criminal appeals—to expire on August 11, 2006. Tex.

Rule App. Proc. 68.2(a) (2011). The Texas Court of Ap-

peals issued its mandate on September 26, 2006.

After Gonzalez, proceeding pro se, petitioned unsuccess-

fully for state habeas relief, he filed a federal habeas

petition under 28 U. S. C. §2254 on January 24, 2008, in

the U. S. District Court for the Northern District of Texas.

His petition alleged, inter alia, that the nearly 10-year

delay between his indictment and trial violated his Sixth

Amendment right to a speedy trial. The District Court,

without discussing Gonzalez’s constitutional claims, dis-

missed Gonzalez’s petition as time barred by the 1-year

statute of limitations in §2244(d)(1)(A). Although Gonza-

lez argued that his judgment had not become final until

the Texas Court of Appeals issued its mandate, the Dis-

trict Court held that Gonzalez’s judgment had become

final when his time for seeking discretionary review in the

Texas CCA expired on August 11, 2006. Counting from

that date, and tolling the limitations period for the time

during which Gonzalez’s state habeas petition was pend-

ing, Gonzalez’s limitations period elapsed on December 17,

2007—over a month before he filed his federal habeas

petition. The District Court denied a COA.

Cite as: 565 U. S. ____ (2012) 3

Opinion of the Court

Gonzalez applied to the U. S. Court of Appeals for the

Fifth Circuit for a COA on two grounds: (1) his habeas

petition was timely, and (2) his Sixth Amendment speedy-

trial right was violated. A Court of Appeals judge granted

a COA on the question “whether the habeas application

was timely filed because Gonzalez’s conviction became

final, and thus the limitations period commenced, on the

date the intermediate state appellate court issued its

mandate.” App. 347. The COA did not mention the Sixth

Amendment question.

The Court of Appeals affirmed. 623 F. 3d 222 (2010).

Acknowledging that a sister Circuit had run the limita-

tions period from the date of a state court’s issuance of a

mandate, the Court of Appeals deemed the mandate’s

issuance “irrelevant” to determining finality under

§2244(d)(1)(A). Id., at 224, 226 (disagreeing with Riddle v.

Kemna, 523 F. 3d 850 (CA8 2008) (en banc)). The Court of

Appeals held that because a judgment becomes final at

“the conclusion of direct review or the expiration of the

time for seeking such review,” §2244(d)(1)(A), the limita-

tions period begins to run for petitioners who fail to appeal

to a State’s highest court when the time for seeking fur-

ther direct review in the state court expires. The Court of

Appeals therefore concluded that Gonzalez’s conviction

became final on August 11, 2006, and his habeas petition

was time barred.

The Court of Appeals did not address Gonzalez’s Sixth

Amendment claim or discuss whether the COA had been

improperly issued. Nor did the State allege any defect in

the COA or move to dismiss for lack of jurisdiction.

Gonzalez petitioned this Court for a writ of certiorari.

In its brief in opposition, the State argued for the first

time that the Court of Appeals lacked jurisdiction to adju-

dicate Gonzalez’s appeal because the COA identified only

a procedural issue, without also “indicat[ing]” a constitu-

tional issue as required by §2253(c)(3). We granted certio-

4 GONZALEZ v. THALER

Opinion of the Court

rari to decide two questions, both of which implicate splits

in authority: (1) whether the Court of Appeals had juris-

diction to adjudicate Gonzalez’s appeal, notwithstanding

the §2253(c)(3) defect;1 and (2) whether Gonzalez’s habeas

petition was time barred under §2244(d)(1) due to the

date on which his judgment became final.2 564 U. S. ___

(2011).

II

We first consider whether the Court of Appeals had juris-

diction to adjudicate Gonzalez’s appeal.

A

Section 2253, as amended by AEDPA, governs appeals

in habeas corpus proceedings. The first subsection,

§2253(a), is a general grant of jurisdiction, providing that

district courts’ final orders in habeas proceedings “shall be

subject to review, on appeal, by the court of appeals.” 28

U. S. C. §2253(a). The second, §2253(b), limits jurisdiction

over a particular type of final order. See §2253(b) (“There

shall be no right of appeal from a final order in a proceed-

ing to test the validity of a warrant [of] remov[al] . . .”).

This case concerns the third, §2253(c), which provides:

“(1) Unless a circuit justice or judge issues a certifi-

cate of appealability, an appeal may not be taken to

——————

1 The Circuits have divided over whether a defect in a COA is a juris-

dictional bar. Compare, e.g., Phelps v. Alameda, 366 F. 3d 722, 726

(CA9 2004) (no); Porterfield v. Bell, 258 F. 3d 484, 485 (CA6 2001) (no);

Young v. United States, 124 F. 3d 794, 798–799 (CA7 1997) (no), with

United States v. Cepero, 224 F. 3d 256, 259–262 (CA3 2000) (en banc)

(yes).

2 The Circuits have divided over when a judgment becomes final if a

petitioner forgoes review in a State’s highest court. Compare, e.g., 623

F. 3d 222, 226 (CA5 2010) (case below) (date when time for seeking

such review expires); Hemmerle v. Schriro, 495 F. 3d 1069, 1073–1074

(CA9 2007) (same), with Riddle v. Kemna, 523 F. 3d 850, 855–856 (CA8

2008) (en banc) (date when state court issues its mandate).

Cite as: 565 U. S. ____ (2012) 5

Opinion of the Court

the court of appeals . . .

. . . . .

“(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a sub-

stantial showing of the denial of a constitutional right.

“(3) The certificate of appealability under paragraph

(1) shall indicate which specific issue or issues satisfy

the showing required by paragraph (2).”

When, as here, the district court denies relief on procedur-

al grounds, the petitioner seeking a COA must show both

“that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitution-

al right and that jurists of reason would find it debatable

whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U. S. 473, 484 (2000).

In this case, the Court of Appeals judge granted a COA

that identified a debatable procedural ruling, but did not

“indicate” the issue on which Gonzalez had made a sub-

stantial showing of the denial of a constitutional right, as

required by §2253(c)(3). The question before us is whether

that defect deprived the Court of Appeals of the power to

adjudicate Gonzalez’s appeal. We hold that it did not.

This Court has endeavored in recent years to “bring

some discipline” to the use of the term “jurisdictional.”

Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op.,

at 5). Recognizing our “less than meticulous” use of the

term in the past, we have pressed a stricter distinction

between truly jurisdictional rules, which govern “a court’s

adjudicatory authority,” and nonjurisdictional “claim-

processing rules,” which do not. Kontrick v. Ryan, 540

U. S. 443, 454–455 (2004). When a requirement goes to

subject-matter jurisdiction, courts are obligated to consid-

er sua sponte issues that the parties have disclaimed or

have not presented. See United States v. Cotton, 535 U. S.

625, 630 (2002). Subject-matter jurisdiction can never be

6 GONZALEZ v. THALER

Opinion of the Court

waived or forfeited. The objections may be resurrected at

any point in the litigation, and a valid objection may lead

a court midway through briefing to dismiss a complaint in

its entirety. “[M]any months of work on the part of the

attorneys and the court may be wasted.” Henderson, 562

U. S., at ___ (slip op., at 5). Courts, we have said, should

not lightly attach those “drastic” consequences to limits

Congress has enacted. Ibid.

We accordingly have applied the following principle: A

rule is jurisdictional “[i]f the Legislature clearly states

that a threshold limitation on a statute’s scope shall count

as jurisdictional.” Arbaugh v. Y & H Corp., 546 U. S. 500,

515 (2006). But if “Congress does not rank a statutory

limitation on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional.” Id., at 516.3

That clear-statement principle makes particular sense in

this statute, as we consider—against the backdrop of

§2253(a)’s clear jurisdictional grant to the courts of ap-

——————

3 Wehave also held that “context, including this Court’s interpreta-

tion of similar provisions in many years past, is relevant to whether a

statute ranks a requirement as jurisdictional.” Reed Elsevier, Inc. v.

Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 13). Here, however,

even though the requirement of a COA (or its predecessor, the certifi-

cate of probable cause (CPC)) dates back to 1908, Congress did not

enact the indication requirement until 1996. There is thus no “long line

of this Court’s decisions left undisturbed by Congress” on which to rely.

Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen.

Comm. of Adjustment, Central Region, 558 U. S. ___, ___ (2009) (slip

op., at 13).

The issuance of a CPC, like the issuance of a COA, was jurisdictional.

Contrary to the dissent’s assertions, post, at 8–10 (opinion of SCALIA,

J.), that fact does not suggest that the indication requirement is juris-

dictional as well. If anything, the inference runs the other way. For

nearly a century, a judge’s granting or withholding of a CPC, absent

any indication of issues, was the fully effective “expression of opinion,”

post, at 8, required for an appeal to proceed. AEDPA’s new require-

ment that judges indicate the specific issues to be raised on appeal has

no predecessor provision—indeed, it is the primary difference between

a CPC and COA.

Cite as: 565 U. S. ____ (2012) 7

Opinion of the Court

peals and §2253(b)’s clear limit on that grant—the extent

to which Congress intended the COA process outlined in

§2253(c) to further limit the courts of appeals’ jurisdiction

over habeas appeals.

Here, the only “clear” jurisdictional language in §2253(c)

appears in §2253(c)(1). As we explained in Miller-El v.

Cockrell, 537 U. S. 322 (2003), §2253(c)(1)’s plain terms—

“Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals”—establish that “until a COA has been issued

federal courts of appeals lack jurisdiction to rule on the

merits of appeals from habeas petitioners.” Id., at 336.

The parties thus agree that §2253(c)(1) is jurisdictional.

The parties also agree that §2253(c)(2) is nonjurisdic-

tional.4 That is for good reason. Section 2253(c)(2) speaks

only to when a COA may issue—upon “a substantial show-

ing of the denial of a constitutional right.” It does not

contain §2253(c)(1)’s jurisdictional terms. See Russello v.

United States, 464 U. S. 16, 23 (1983) (“[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally . . .”). And it

would be passing strange if, after a COA has issued, each

court of appeals adjudicating an appeal were dutybound to

revisit the threshold showing and gauge its “substan-

tial[ity]” to verify its jurisdiction. That inquiry would be

largely duplicative of the merits question before the court.

It follows that §2253(c)(3) is nonjurisdictional as well.

Like §2253(c)(2), it too reflects a threshold condition for

the issuance of a COA—the COA’s indication of “which

specific issue or issues satisfy the showing required by

paragraph (2).” It too “does not speak in jurisdictional

terms or refer in any way to the jurisdiction of the [ap-

——————

4 The United States as amicus curiae contends that §2253(c)(2) is

jurisdictional, but the State concedes that it is not. Tr. of Oral Arg. 31.

8 GONZALEZ v. THALER

Opinion of the Court

peals] courts.” Arbaugh, 546 U. S., at 515 (internal quo-

tation marks omitted). The unambiguous jurisdictional

terms of §§2253(a), (b), and (c)(1) show that Congress

would have spoken in clearer terms if it intended

§2253(c)(3) to have similar jurisdictional force. Instead,

the contrast underscores that the failure to obtain a COA

is jurisdictional, while a COA’s failure to indicate an issue

is not. A defective COA is not equivalent to the lack of any

COA.

It is telling, moreover, that Congress placed the power

to issue COAs in the hands of a “circuit justice or judge.”5

It would seem somewhat counterintuitive to render a

panel of court of appeals judges powerless to act on ap-

peals based on COAs that Congress specifically empow-

ered one court of appeals judge to grant. Indeed, whereas

§2253(c)(2)’s substantial-showing requirement at least de-

scribes a burden that “the applicant” seeking a COA

bears, §2253(c)(3)’s indication requirement binds only the

judge issuing the COA. Notably, Gonzalez advanced both

the timeliness and Sixth Amendment issues in his appli-

cation for a COA. A petitioner, having successfully ob-

tained a COA, has no control over how the judge drafts the

COA and, as in Gonzalez’s case, may have done everything

required of him by law. That fact would only compound

the “unfai[r] prejudice” resulting from the sua sponte

dismissals and remands that jurisdictional treatment

would entail. Henderson, 562 U. S., at ___ (slip op., at 5).6

——————

5 The courts of appeals uniformly interpret “circuit justice or judge” to

encompass district judges. See United States v. Mitchell, 216 F. 3d

1126, 1129 (CADC 2000) (collecting cases); Fed. Rule App. Proc. 22(b).

Habeas Corpus Rule 11(a) requires district judges to decide whether to

grant or deny a COA in the first instance.

6 That fact also distinguishes the indication requirement from every

“ ‘similar provisio[n]’ ” that the dissent claims we have deemed jurisdic-

tional. Post, at 5–6. None of our cases addressing those provisions,

moreover, recognized or relied on the sweeping “rule” that the dissent

now invokes, whereby this Court should enforce as jurisdictional all

Cite as: 565 U. S. ____ (2012) 9

Opinion of the Court

Treating §2253(c)(3) as jurisdictional also would thwart

Congress’ intent in AEDPA “to eliminate delays in the

federal habeas review process.” Holland v. Florida, 560

U. S. ___, ___ (2010) (slip op., at 16). The COA process

screens out issues unworthy of judicial time and attention

and ensures that frivolous claims are not assigned to

merits panels. Once a judge has made the determination

that a COA is warranted and resources are deployed in

briefing and argument, however, the COA has fulfilled

that gatekeeping function. Even if additional screening of

already-issued COAs for §2253(c)(3) defects could further

winnow the cases before the courts of appeals, that would

not outweigh the costs of further delay from the extra

layer of review. This case, in which the alleged defect

would be dispositive, exemplifies those inefficiencies; the

State requests that we vacate and remand with instruc-

tions to dismiss the appeal based on a §2253(c)(3) defect

that it raised for the first time in response to a petition for

certiorari. And delay would be particularly fruitless in the

numerous cases where, as here, the district court dis-

missed the petition on procedural grounds and the court of

appeals affirms, without having to address the omitted

constitutional issue at all.

——————

“procedural conditions for appealing a case from one Article III court to

another.” Ibid.; but see, e.g., post, at 6–7, n. 2 (conceding that the “rule”

does not apply to criminal appeals); Becker v. Montgomery, 532 U. S.

757, 763 (2001) (failure to sign notice of appeal is a nonjurisdictional

omission). All the cases, meanwhile, involved time limits (save one

involving Federal Rule of Appellate Procedure 3(c)(1), which we address

infra). In Bowles v. Russell, 551 U. S. 205 (2007), we emphasized our

“century’s worth of precedent” for treating statutory time limits on

appeals as jurisdictional, id., at 209, n. 2, but even “Bowles did not hold

. . . that all statutory conditions imposing a time limit should be con-

sidered jurisdictional,” Reed Elsevier, 559 U. S., at ___ (slip op.,

at 12). This case, in any event, involves a different type of procedural

condition.

10 GONZALEZ v. THALER

Opinion of the Court

B

The State, aided by the United States as amicus curiae,

makes several arguments in support of jurisdictional

treatment of §2253(c)(3). None is persuasive.

First, the State notes that although §2253(c)(3) does not

speak in jurisdictional terms, it refers back to §2253(c)(1),

which does. The State argues that it is as if §2253(c)(1)

provided: “Unless a circuit justice or judge issues a certifi-

cate of appealability that shall indicate the specific issue or

issues that satisfy the showing required by paragraph (2),

an appeal may not be taken to the court of appeals.” The

problem is that the statute provides no such thing. In-

stead, Congress set off the requirements in distinct para-

graphs and, rather than mirroring their terms, excluded

the jurisdictional terms in one from the other. Notably,

the State concedes that §2253(c)(2) is nonjurisdictional,

even though it too cross-references §2253(c)(1) and is

cross-referenced by §2253(c)(3).

Second, the State seizes on the word “shall” in

§2253(c)(3), arguing that an omitted indication renders the

COA no COA at all. But calling a rule nonjurisdictional

does not mean that it is not mandatory or that a timely

objection can be ignored. If a party timely raises the

COA’s failure to indicate a constitutional issue, the court

of appeals panel must address the defect by considering an

amendment to the COA or remanding to the district judge

for specification of the issues.7 This Court, moreover, has

——————

7 The dissent’s insistence that there is “no practical, real-world effect”

to treating this rule as mandatory, post, at 4, ignores the real world.

Courts of appeals regularly amend COAs or remand for specification of

issues, notwithstanding the supposed potential to “embarras[s] a

colleague.” Post, at 5; see, e.g., Saunders v. Senkowski, 587 F. 3d 543,

545 (CA2 2009) (per curiam) (amending COA to add issue); United

States v. Weaver, 195 F. 3d 52, 53 (CADC 1999) (remanding for specifi-

cation of issues). The government frequently alleges COA defects as

grounds for dismissal (as the State did here, at this late stage), appar-

Cite as: 565 U. S. ____ (2012) 11

Opinion of the Court

long “rejected the notion that ‘all mandatory prescriptions,

however emphatic, are . . . properly typed jurisdictional.’ ”

Henderson, 562 U. S., at ___ (slip op., at 9); see also Dolan

v. United States, 560 U. S. ___, ___ (2010) (slip op., at 5)

(statute’s reference to “shall” alone does not render statu-

tory deadline jurisdictional). Nothing in §2253(c)(3)’s

prescription establishes that an omitted indication should

remain an open issue throughout the case.

Third, the United States argues that the placement of

§2253(c)(3) in a section containing jurisdictional provisions

signals that it too is jurisdictional. In characterizing

certain requirements as nonjurisdictional, we have on

occasion observed their “ ‘separat[ion]’ ” from jurisdictional

provisions. E.g., Reed Elsevier, Inc. v. Muchnick, 559 U. S.

___, ___ (2010) (slip op., at 7); Arbaugh, 546 U. S., at 515.

The converse, however, is not necessarily true: Mere prox-

imity will not turn a rule that speaks in nonjurisdictional

terms into a jurisdictional hurdle. In fact, §2253(c)(3)’s

proximity to §§2253(a), (b), and (c)(1) highlights the ab-

sence of clear jurisdictional terms in §2253(c)(3).

Finally, the State analogizes a COA to a notice of ap-

peal, pointing out that both a notice and its contents are

jurisdictional prerequisites. Federal Rule of Appellate

Procedure 3(c)(1) provides that a notice of appeal must:

“(A) specify the party or parties taking the appeal”; “(B)

designate the judgment, order, or part thereof being ap-

pealed”; and “(C) name the court to which the appeal is

taken.” We have held that “Rule 3’s dictates are jurisdic-

tional in nature.” Smith v. Barry, 502 U. S. 244, 248 (1992).

——————

ently not sharing the dissent’s concern that such efforts “yield nothing

but additional litigation expenses.” Post, at 5; see, e.g., Porterfield, 258

F. 3d, at 485; Cepero, 224 F. 3d, at 257. Habeas petitioners, too, have

every incentive to request that defects be resolved, not only to defuse

potential problems later in the litigation, but also to ensure that the

issue on which they sought appeal is certified and will receive full

briefing and consideration.

12 GONZALEZ v. THALER

Opinion of the Court

We reject this analogy. We construed the content re-

quirements for notices of appeal as jurisdictional because

we were “convinced that the harshness of our construction

[wa]s ‘imposed by the legislature.’ ” Torres v. Oakland

Scavenger Co., 487 U. S. 312, 318 (1988). Rule 4, we

noted, establishes mandatory time limits for filing a notice

of appeal. Excusing a failure to name a party in a notice

of appeal, in violation of Rule 3, would be “equivalent to

permitting courts to extend the time for filing a notice of

appeal,” in violation of Rule 4. Id., at 315. And “time

limits for filing a notice of appeal have been treated as

jurisdictional in American law for well over a century.”

Bowles v. Russell, 551 U. S. 205, 209, n. 2 (2007). Accord-

ingly, the Advisory Committee Note “makes no distinction

among the various requirements of Rule 3 and Rule 4,”

treating them “as a single jurisdictional threshold.”

Torres, 487 U. S., at 315; see also id., at 316 (“the Advisory

Committee viewed the requirements of Rule 3 as jurisdic-

tional in nature”). Here, we find no similar basis for treat-

ing the paragraphs of §2253(c) as a single jurisdictional

threshold.

Moreover, in explaining why the naming requirement

was jurisdictional in Torres, we reasoned that an unnamed

party leaves the notice’s “intended recipient[s]”—the

appellee and court—“unable to determine with certitude

whether [that party] should be bound by an adverse judg-

ment or held liable for costs or sanctions.” Id., at 318.

The party could sit on the fence, await the outcome, and

opt to participate only if it was favorable. That possibility

of gamesmanship is not present here. Unlike the party

who fails to submit a compliant notice of appeal, the habe-

as petitioner who obtains a COA cannot control how that

COA is drafted.8 And whereas a party’s failure to be

——————

8 The dissent claims that we fail to give stare decisis effect to Torres.

Post, at 10. Setting aside the fact that Torres involved an unrelated

Cite as: 565 U. S. ____ (2012) 13

Opinion of the Court

named in a notice of appeal gives absolutely no “notice of

[his or her] appeal,” a judge’s issuance of a COA reflects

his or her judgment that the appeal should proceed and

supplies the State with notice that the habeas litigation

will continue.

Because we conclude that §2253(c)(3) is a nonjurisdic-

tional rule, the Court of Appeals had jurisdiction to adju-

dicate Gonzalez’s appeal.

III

We next consider whether Gonzalez’s habeas petition

was time barred. AEDPA establishes a 1-year limitations

period for state prisoners to file for federal habeas relief,

which “run[s] from the latest of ” four specified dates.9

§2244(d)(1). This case concerns the first of those dates:

“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). The question before

——————

Federal Rule featuring a different textual, contextual, and historical

backdrop, the dissent notably fails to grapple with—indeed, its opinion

is bereft of quotation to—any supporting reasoning in that opinion.

That reasoning is simply not applicable here.

9 Title 28 U. S. C. §2244(d)(1) provides:

“A 1-year period of limitation shall apply to an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of a

State court. The limitation period shall run from the latest of—

“(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review;

“(B) the date on which the impediment to filing an application creat-

ed by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

“(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recog-

nized by the Supreme Court and made retroactively applicable to cases

on collateral review; or

“(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.”

14 GONZALEZ v. THALER

Opinion of the Court

us is when the judgment becomes “final” if a petitioner

does not appeal to a State’s highest court.

A

In construing the language of §2244(d)(1)(A), we do not

write on a blank slate. In Clay v. United States, 537 U. S.

522 (2003), we addressed AEDPA’s statute of limitations

for federal prisoners seeking postconviction relief. See

§2255(f)(1) (2006 ed., Supp. III) (beginning 1-year period of

limitations from “the date on which the judgment of con-

viction becomes final”). We held that the federal judgment

becomes final “when this Court affirms a conviction on the

merits on direct review or denies a petition for a writ of

certiorari,” or, if a petitioner does not seek certiorari,

“when the time for filing a certiorari petition expires.” Id.,

at 527. In so holding, we rejected the argument that, if a

petitioner declines to seek certiorari, the limitations peri-

od “starts to run on the date the court of appeals issues its

mandate.” Id., at 529.

In Jimenez v. Quarterman, 555 U. S. 113 (2009), we

described Clay’s interpretation as comporting “with the

most natural reading of the statutory text” and saw “no

reason to depart” from it in “construing the similar lan-

guage of §2244(d)(1)(A).” 555 U. S., at 119. The state

court had permitted Jimenez to file an out-of-time direct

appeal. We held that this “reset” the limitations period;

Jimenez’s judgment would now become final at “the con-

clusion of the out-of-time direct appeal, or the expiration of

the time for seeking review of that [out-of-time] appeal.”

Id., at 120–121. Because Jimenez did not seek certiorari,

we made no mention of when the out-of-time appeal “con-

clu[ded].” Rather, we held that his judgment became final

when his “time for seeking certiorari review in this Court

expired.” Id., at 120. Nor did we mention the date on

which the state court issued its mandate. Both Clay and

Jimenez thus suggested that the direct review process

Cite as: 565 U. S. ____ (2012) 15

Opinion of the Court

either “concludes” or “expires,” depending on whether the

petitioner pursues or forgoes direct appeal to this Court.

We now make clear what we suggested in those cases:

The text of §2244(d)(1)(A), which marks finality as of “the

conclusion of direct review or the expiration of the time

for seeking such review,” consists of two prongs. Each

prong—the “conclusion of direct review” and the “expira-

tion of the time for seeking such review”—relates to a

distinct category of petitioners. For petitioners who pur-

sue direct review all the way to this Court, the judgment

becomes final at the “conclusion of direct review”—when

this Court affirms a conviction on the merits or denies a

petition for certiorari. For all other petitioners, the judg-

ment becomes final at the “expiration of the time for seek-

ing such review”—when the time for pursuing direct

review in this Court, or in state court, expires. We thus

agree with the Court of Appeals that because Gonzalez did

not appeal to the State’s highest court, his judgment be-

came final when his time for seeking review with the

State’s highest court expired.

B

Gonzalez offers an alternative reading of §2244(d)(1)(A):

Courts should determine both the “conclusion of direct

review” and the “expiration of the time for seeking such

review” for every petitioner who does not seek certiorari,

then start the 1-year clock from the “latest of ” the two

dates. Gonzalez rejects our uniform definition of the

“conclusion of direct review” as the date on which this

Court affirms a conviction on the merits or denies a peti-

tion for certiorari. In his view, whenever a petitioner does

not seek certiorari, the “conclusion of direct review” is the

date on which state law marks finality—in Texas, the date

on which the mandate issues. Ex parte Johnson, 12 S. W.

3d 472, 473 (Crim. App. 2000) (per curiam). Applying this

approach, Gonzalez contends that his habeas petition was

16 GONZALEZ v. THALER

Opinion of the Court

timely because his direct review “concluded” when the

mandate issued (on September 26, 2006), later than the

date on which his time for seeking Texas CCA review

“expired” (August 11, 2006). We find his construction of

the statute unpersuasive.

First, Gonzalez lacks a textual anchor for his later-

in-time approach. The words “latest of” do not appear

anywhere in §2244(d)(1)(A). Rather, they appear in

§2244(d)(1) and refer to the “latest of” the dates in subpar-

agraphs (A), (B), (C), and (D)—the latter three of which

are inapplicable here. Nothing in §2244(d)(1)(A) contem-

plates any conflict between the “conclusion of direct re-

view” and the “expiration of the time for seeking such

review,” much less instructs that the later of the two shall

prevail.

Nor is Gonzalez’s later-in-time reading necessary to give

both prongs of §2244(d)(1)(A) full effect. Our reading does

so by applying one “or” the other, depending on whether

the direct review process concludes or expires. Treating

the judgment as final on one date “or” the other is con-

sistent with the disjunctive language of the provision.

Second, Gonzalez misreads our precedents. Gonzalez

asserts that in Jimenez, we made a later-in-time choice

between the two prongs. That is mistaken. Rather, we

chose between two “expiration” dates corresponding to

different appeals: Jimenez initially failed to appeal to the

Texas Court of Appeals and that appeal became final

when his “time for seeking discretionary review . . . ex-

pired.” 555 U. S., at 117, 119. When Jimenez was later

allowed to file an out-of-time appeal, he pursued appeals

with both the Texas Court of Appeals and Texas CCA; the

out-of-time appeal thus became final when his “[t]ime for

seeking certiorari review . . . with this Court expired.” Id.,

at 116, 120. We adopted the out-of-time appeal’s date of

finality over the initial appeal’s date of finality. Id., at

119–121. Critically, by deeming the initial appeal final at

Cite as: 565 U. S. ____ (2012) 17

Opinion of the Court

the expiration of time for seeking review in state court,

and the out-of-time appeal final at the expiration of time

for seeking certiorari in this Court, we reinforced Clay’s

suggestion that the “expiration” prong governs all peti-

tioners who do not pursue direct review all the way to this

Court.10

Third, Gonzalez argues that AEDPA’s federalism con-

cerns and respect for state-law procedures mean that we

should not read §2244(d)(1)(A) to disregard state law. We

agree. That is why a state court’s reopening of direct

review will reset the limitations period. 555 U. S., at 121.

That is also why, just as we determine the “expiration of

the time for seeking [direct] review” from this Court’s

filing deadlines when petitioners forgo certiorari, we look

to state-court filing deadlines when petitioners forgo state-

court appeals. Referring to state-law procedures in that

context makes sense because such deadlines are inherent-

ly court specific. There is no risk of relying on “state-law

rules that may differ from the general federal rule.” Clay,

537 U. S., at 531.

By contrast, Gonzalez urges us to scour each State’s

laws and cases to determine how it defines finality for

every petitioner who forgoes a state-court appeal. That ap-

proach would usher in state-by-state definitions of the con-

clusion of direct review. It would be at odds with the

uniform definition we adopted in Clay and accepted in the

§2244(d)(1)(A) context in Jimenez. And it would pose

serious administrability concerns. Even if roughly “half of

the States define the conclusion of direct review as the

issuance of the mandate or similar process,” Brief for

——————

10 Gonzalez also argues that Lawrence v. Florida, 549 U. S. 327

(2007), supports his focus on the state court’s issuance of the mandate

because it referred to a mandate in determining when state postconvic-

tion proceedings were no longer pending. Lawrence, however, is inap-

posite. The case involved a different provision, 28 U. S. C. §2244(d)(2),

which by its terms refers to “State” procedures.

18 GONZALEZ v. THALER

Opinion of the Court

Petitioner 40, that still leaves half with either different

rules or no settled rules at all.11

Fourth, Gonzalez speculates that our reading will rob

some habeas petitioners of the full 1-year limitations pe-

riod. Gonzalez asserts that our reading starts the clock

running from the date that his time for seeking Texas

CCA review expired, even though, under Texas law, he

could not file for state habeas relief until six weeks later,

on the date the Texas Court of Appeals issued its man-

date. Tex. Code Crim. Proc. Ann., Art. 11.07, §3(a)

(Vernon Supp. 2011). His inability to initiate state habeas

proceedings during those six weeks, he argues, reduced his

1-year federal habeas filing period by six weeks. We

expect, however, that it will be a rare situation where a

petitioner confronting similar state laws faces a delay in

the mandate’s issuance so excessive that it prevents him

or her from filing a federal habeas petition within a year.12

A petitioner who has exhausted his or her claims in state

court need not await state habeas proceedings to seek

federal habeas relief on those claims. To the extent a

petitioner has had his or her federal filing period severely

truncated by a delay in the mandate’s issuance and has

unexhausted claims that must be raised on state habeas

review, such a petitioner could file a request for a stay and

abeyance from the federal district court. See Rhines v.

——————

11 Compare, e.g., PSL Realty Co. v. Granite Inv. Co., 86 Ill. 2d 291,

304, 427 N. E. 2d 563, 569 (1981) (judgment is final “when entered”);

Gillis v. F & A Enterprises, 934 P. 2d 1253, 1256 (Wyo. 1997) (judgment

is final when “opinion is filed with the clerk”), with Ex parte Johnson,

12 S. W. 3d 472, 473 (Texas CCA 2000) (per curiam) (judgment is final

at “issuance of the mandate”).

12 We note that Gonzalez waited four months from the date of the

mandate’s issuance before filing a state habeas petition. See 623 F. 3d,

at 223. When that petition was dismissed as improperly filed, Gonzalez

waited another three months before refiling. Ibid. Even then, his state

habeas proceedings concluded several weeks before his 1-year federal

deadline elapsed. Id., at 225.

Cite as: 565 U. S. ____ (2012) 19

Opinion of the Court

Weber, 544 U. S. 269, 277 (2005).

Finally, Gonzalez argues, as an alternative to his later-

in-time construction, that his petition should be consid-

ered timely because it was filed within a year of when his

time for seeking this Court’s review—as opposed to the

Texas CCA’s review—expired. We can review, however,

only judgments of a “state court of last resort” or of a lower

state court if the “state court of last resort” has denied

discretionary review. This Court’s Rule 13.1; see also 28

U. S. C. §1257(a) (2006 ed.). Because Gonzalez did not

appeal to the Texas CCA, this Court would have lacked

jurisdiction over a petition for certiorari from the Texas

Court of Appeals’ decision affirming Gonzalez’s conviction.

We therefore decline to incorporate the 90-day period for

seeking certiorari in determining when Gonzalez’s judg-

ment became final.

* * *

In sum, we hold that §2253(c)(3) is a mandatory but

nonjurisdictional rule. Here, the COA’s failure to “indi-

cate” a constitutional issue did not deprive the Court of

Appeals of jurisdiction to adjudicate Gonzalez’s appeal.

We further hold that, with respect to a state prisoner who

does not seek review in a State’s highest court, the judg-

ment becomes “final” under §2244(d)(1)(A) when the time

for seeking such review expires—here, August 11, 2006.

We thus agree with the Court of Appeals that Gonzalez’s

federal habeas petition was time barred.

For the reasons stated, the judgment of the Court of

Appeals for the Fifth Circuit is

Affirmed.

Cite as: 565 U. S. ____ (2012) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–895

_________________

RAFAEL ARRIAZA GONZALEZ, PETITIONER v. RICK

THALER, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[January 10, 2012]

JUSTICE SCALIA, dissenting.

The obvious, undeniable, purpose of 28 U. S. C. §2253(c)

is to spare three-judge courts of appeals the trouble of

entertaining (and the prosecution the trouble of defending

against) appeals from the denials of relief in habeas and

§2255 proceedings, unless a district or circuit judge has

identified an issue on which the applicant has made a

substantial showing of a constitutional violation. Where

no such constitutional issue has been identified, an appeal

on other, nonconstitutional, issues (such as the statute of

limitations issue that the Court decides today) will not lie.

Today’s opinion transforms this into a provision that

allows appeal so long as a district or circuit judge, for

whatever reason or for no reason at all, approves it. This

makes a hash of the statute. The opinion thinks this

alchemy required by the Court’s previously expressed

desire to “ ‘bring some discipline’ to the use of the term

‘jurisdictional,’ ” ante, at 5 (quoting Henderson v. Shinseki,

562 U. S. ___, ___ (2011) (slip op., at 5)). If that is true,

discipline has become a code word for eliminating incon-

venient statutory limits on our jurisdiction. I would re-

verse the judgment below for want of jurisdiction.

2 GONZALEZ v. THALER

SCALIA, J., dissenting

I

Fair Meaning of the Text

Congress amended §2253 to its current form in the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). In its entirety, the section reads as follows:

“(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a district judge, the final

order shall be subject to review, on appeal, by the

court of appeals for the circuit in which the proceeding

is held.

“(b) There shall be no right of appeal from a final

order in a proceeding to test the validity of a warrant

to remove to another district or place for commitment

or trial a person charged with a criminal offense

against the United States, or to test the validity of

such person’s detention pending removal proceedings.

“(c)(1) Unless a circuit justice or judge issues a cer-

tificate of appealability, an appeal may not be taken

to the court of appeals from—

“(A) the final order in a habeas corpus proceeding

in which the detention complained of arises out of

process issued by a State court; or

“(B) the final order in a proceeding under section

2255.

“(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a sub-

stantial showing of the denial of a constitutional right.

“(3) The certificate of appealability under paragraph

(1) shall indicate which specific issue or issues satisfy

the showing required by paragraph (2).”

As the Court acknowledges, ante, at 6–7, all three subsec-

tions—(a), (b), and (c)—clearly speak to the jurisdiction of

the courts of appeals. Subsection (a) gives appellate juris-

diction to “the court of appeals for the circuit in which

the proceeding is held”; subsection (b) carves out certain

Cite as: 565 U. S. ____ (2012) 3

SCALIA, J., dissenting

classes of cases from that appellate jurisdiction; and subsec-

tion (c) imposes a procedural hurdle to the exercise of that

appellate jurisdiction—a judge’s issuance of a certificate of

appealability, see Miller-El v. Cockrell, 537 U. S. 322, 336

(2003).

Paragraph 2253(c)(3) says that a certificate of appeal-

ability must “indicate” which issue or issues in the case

involve a substantial showing of a constitutional violation.

Everyone agrees that the certificate issued below contains

no such indication. See ante, at 5. It appears, in fact, that

the issuing judge never considered whether any of Gonza-

lez’s constitutional claims satisfied paragraph (2). As far

as we know, no federal judge has ever determined that

Gonzalez “has made a substantial showing of the denial of

a constitutional right.” §2253(c)(2). The Court does not

even suggest that he has—but it goes on to decide the

statute-of-limitations issue in the case.

Its basis for proceeding in this fashion is the remarkable

statement that “[a] defective COA is not equivalent to the

lack of any COA.” Ante, at 8. That is simply not true with

respect to a significant defect in a legal document. Would

one say that a deed which lacks the words of conveyance is

not equivalent to the lack of a deed? Or that a passport

which lacks the Secretary of State’s affirmance of the

bearer’s citizenship is not equivalent to the lack of a pass-

port? Minor technical defects are one thing, but a defect

that goes to the whole purpose of the instrument is some-

thing else. And the whole purpose of the certificate-of-

appealability procedure is to make sure that, before a case

can proceed to the court of appeals, a judge has made the

determination that it presents a substantial showing of

the denial of a constitutional right. To call something a

valid certificate of appealability which does not contain

the central finding that is the whole purpose of a certifi-

cate of appealability is quite absurd.

The Court says that “[o]nce a judge has made the de-

4 GONZALEZ v. THALER

SCALIA, J., dissenting

termination that a COA is warranted and resources are

deployed in briefing and argument, . . . the COA has ful-

filled [its] gatekeeping function.” Ante, at 10. But of

course it has not done so—it has performed no gatekeeping

function whatever—if “the determination that a COA is

warranted” has not been accompanied by the issuing

judge’s opinion required to support the determination:

that there is an issue as to which the applicant has made

a “substantial showing of the denial of a constitutional

right,” §2253(c)(2). As the very next sentence of today’s

opinion discloses, what the Court means by “has fulfilled

[its] gatekeeping function” is simply that it will not be

worth the trouble of going back, since that would “not

outweigh the costs of further delay,” ante, at 9.

That is doubtless true, and it demonstrates the hollow-

ness of the Court’s assurance that “calling a rule nonjuris-

dictional does not mean that it is not mandatory or that a

timely objection can be ignored,” ante, at 10. That state-

ment is true enough as a general proposition: Calling the

numerosity requirement in Arbaugh v. Y & H Corp., 546

U. S. 500 (2006), nonjurisdictional, for example, did not

eliminate it, where protest was made, as a continuing

mandatory requirement for relief on the merits, id., at

516. Even the time-of-filing requirement in Eberhart v.

United States, 546 U. S. 12 (2005) (per curiam), continued

to have “bite” even though it was held nonjurisdictional: It

prevented relief when the failure to observe it was prop-

erly challenged, id., at 19. But the Court has managed to

create today a “mandatory” requirement which—precisely

because it will not be worth the trouble of going back—has

no practical, real-world effect.1 What is the consequence

——————

1 The Court suggests that I “ignor[e] the real world,” ante, at 11, n. 7,

in which litigants and courts have taken steps to correct a defective

COA. But these actions are unsurprising in a world in which there was

the possibility that this Court would treat §2253(c)(3) as a jurisdictional

requirement and a court of appeals had already done so. The New

Cite as: 565 U. S. ____ (2012) 5

SCALIA, J., dissenting

when the issuing judge, over properly preserved objection,

produces a COA like the one here, which does not contain

the required opinion? None whatever. The habeas peti-

tioner already has what he wants, argument before the

court of appeals. The government, for its part, is either

confident in its view that there has been no substantial

showing of denial of a constitutional right—in which case

it is just as easy (if not easier) to win before three judges

as it is before one; or else it is not—in which case a cru-

sade to enforce §2253(c) is likely to yield nothing but

additional litigation expenses. As for the three-judge

panel of the court of appeals, it remains free, as always, to

choose whichever mandatory-but-not-jurisdictional basis it

wishes for resolving the case. Cf. Steel Co. v. Citizens for

Better Environment, 523 U. S. 83, 93–94 (1998). Why not

choose the one that is sure to be final and that might avoid

embarrassing a colleague? No one has any interest in

enforcing the “mandatory” requirement. Which is perhaps

why, as I proceed to discuss, mandatory requirements for

court-to-court appeal are always made jurisdictional.

Past Treatment of Similar Provisions

As the Court acknowledges, “ ‘context, including this

Court’s interpretation of similar provisions in many years

past, is relevant to whether a statute ranks a requirement

as jurisdictional.’ ” Ante, at 6, n. 3 (quoting Reed Elsevier,

Inc. v. Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 13)).

Thus, we have said that a requirement prescribed as a

condition to obtaining judicial review of agency action

is quite different (nonjurisdictional) from a requirement

prescribed as a condition to appeal from one court to an-

other (jurisdictional). See Henderson, 562 U. S., at ___ –

___ (slip op., at 7–8). We have always—always, without

——————

World of the Court’s making, in which it is certain that an issuing

judge’s failure to identify any issue justifying a COA will not have

jurisdictional consequences, is yet unexplored.

6 GONZALEZ v. THALER

SCALIA, J., dissenting

exception—held that procedural conditions for appealing a

case from one Article III court to another are jurisdic-

tional. When an appeal is “not taken within the time

prescribed by law,” the “Court of Appeals [is] without juris-

diction.” George v. Victor Talking Machine Co., 293 U. S.

377, 379 (1934) (per curiam); see also United States v.

Robinson, 361 U. S. 220, 229–230 (1960). When a party’s

name is not listed in the notice of appeal, as the Federal

Rules of Appellate Procedure require, the court has no

jurisdiction over that party’s appeal. Torres v. Oakland

Scavenger Co., 487 U. S. 312, 314–315 (1988).

When this Court reviewed cases by writ of error, the law

re quired that the lower-court record be filed with the

Court “before the end of the term next succeeding the

issue of the writ.” Edmonson v. Bloomshire, 7 Wall. 306,

309 (1869). The Court routinely dismissed cases that did

not comply with that requirement. See, e.g., Mesa v.

United States, 2 Black 721, 721–722 (1863) (per curiam);

Edmonson, supra, at 309–310; Steamer Virginia v. West,

19 How. 182, 183 (1857). The same jurisdictional treat-

ment was accorded to failure to serve notice on the de-

fendant in error within the succeeding term, see, e.g.,

United States v. Curry, 6 How. 106, 112–113 (1848); Vil-

labolos v. United States, 6 How. 81, 88, 91 (1848), and to

failure to file the writ of error with the clerk of the lower

court, see, e.g., Credit Co. v. Arkansas Central R. Co., 128

U. S. 258, 261 (1888); Scarborough v. Pargoud, 108 U. S.

567 (1883). Today, when a petition for certiorari in a civil

case is not filed within the time prescribed by 28 U. S. C.

§2101(c), this Court lacks jurisdiction. Federal Election

Comm’n v. NRA Political Victory Fund, 513 U. S. 88, 90

(1994) (citing Missouri v. Jenkins, 495 U. S. 33, 45 (1990));

see also Matton S. S. Co. v. Murphy, 319 U. S. 412, 415

(1943) (per curiam).2

——————

2 Since the time limits for filing petitions for certiorari in criminal

Cite as: 565 U. S. ____ (2012) 7

SCALIA, J., dissenting

So strict has been the rule enforcing as jurisdictional

those requirements attached to court-from-court appeals,

that we have applied it to a requirement contained in a

statute not even addressed to the courts. Section 518(a) of

Title 28 charges the Solicitor General with “conduct[ing]

and argu[ing] suits and appeals in the Supreme Court . . .

in which the United States is interested.” We held that,

absent independent statutory authority, an agency’s peti-

tion for certiorari filed without authorization from the

Solicitor General does not suffice to invoke our jurisdic-

tion. NRA Political Victory Fund, supra, at 98–99.3

Jurisdictional enforcement of procedural requirements

for appeal has deep roots in our jurisprudence. Chief

Justice Taney dismissed an appeal in which the citation

was not issued and served in time, because “we have no

power to receive an appeal in any other mode than that

provided by law.” Villabolos, supra, at 90. And Chief

Justice Chase wrote, in a case dismissing an appeal for

failure to file in time:

“In the Judiciary Act of 1789, and in many acts since,

Congress has provided for [appellate courts’] exercise

——————

cases are “not enacted by Congress but [are] promulgated by this Court

under authority of Congress to prescribe rules,” we have held that they

may “be relaxed by the Court in the exercise of its discretion when the

ends of justice so require.” Schacht v. United States, 398 U. S. 58, 64

(1970). The indication requirement of §2253(c)(3), of course, has been

“imposed by the legislature and not by the judicial process.” Schiavone

v. Fortune, 477 U. S. 21, 31 (1986).

3 The Court cites Becker v. Montgomery, 532 U. S. 757 (2001), as a

counter-example. Ante, at 9, n. 6. We held there that an appellant’s

failure to sign his notice of appeal, see Fed. Rule Civ. Proc. 11(a),

within the time prescribed for filing a notice of appeal, see Fed. Rule

App. Proc. 4(a)(1), did not require dismissal where the notice itself was

timely filed. 532 U. S., at 762–763. We did not hold, however, that the

signing requirement was nonjurisdictional; we had no occasion to do so.

We held that Becker had complied with Civil Rule 11(a) because the

error was “ ‘corrected promptly after being called to [his] attention,’ ”

id., at 764 (quoting Fed. Rule Civ. Proc. 11(a)).

8 GONZALEZ v. THALER

SCALIA, J., dissenting

[of jurisdiction] in such cases and classes of cases, and

under such regulations as seemed to the legislative

wisdom convenient and appropriate. The court has

always regarded appeals in other cases as excepted

from the grant of appellate power, and has always felt

itself bound to give effect to the regulations by which

Congress has prescribed the manner of its exercise.”

Castro v. United States, 3 Wall. 46, 49 (1866).

Jurisdictional Nature of Predecessor Provision

But similarity to a general type of provision that has

always been held jurisdictional is not all that supports the

jurisdictional character of §2253(c)(3). Its very predeces-

sor statute made a judge’s expression of opinion a condi-

tion of appellate jurisdiction. The certificate of probable

cause, of which the COA was born, arrived on the scene

over 100 years ago in “An Act Restricting in certain cases

the right of appeal to the Supreme Court in habeas corpus

proceedings,” Act of Mar. 10, 1908, ch. 76, 35 Stat. 40:

“[F]rom a final decision by a court of the United

States in a proceeding in habeas corpus where the de-

tention complained of is by virtue of process issued

out of a State court no appeal to the Supreme Court

shall be allowed unless the United States court by

which the final decision was rendered or a justice of

the Supreme Court shall be of opinion that there ex-

ists probable cause for an appeal, in which event, on

allowing the same, the said court or justice shall cer-

tify that there is probable cause for such allowance.”

The last version of this statute, before it was amended to

its current form in AEDPA, provided for issuance of the

certificate of probable cause by a circuit judge instead of a

justice. See §2253, 62 Stat. 967 (codified at 28 U. S. C.

§2253). Even applying the Court’s simplistic rule that the

jurisdictional restriction must be contained in the very

Cite as: 565 U. S. ____ (2012) 9

SCALIA, J., dissenting

same paragraph as the procedural requirement, there is

no doubt that under this statute a judge’s certification that

there was probable cause for an appeal was jurisdictional.

See, e.g., Ex parte Patrick, 212 U. S. 555 (1908) (per cu-

riam); Bilik v. Strassheim, 212 U. S. 551 (1908) (per cu-

riam). There is no reason whatever to think that Congress

rendered the statement of opinion unnecessary for juris-

diction by (1) extending the requirement for it to §2255

proceedings; (2) requiring the opinion to address a more

specific point (not just probable cause for an appeal but

presence of an issue presenting a “substantial showing of

the denial of a constitutional right”)4; and (3) giving the

document in which the judge is required to express the

opinion a name (“certificate of appealability”)—so that

now a “certificate of appealability” without opinion will

suffice. Neither any one of these steps, nor all of them

combined, suggest elimination of jurisdictional status for

the required expression of opinion.5 It would be an en-

tirely strange way of achieving that result. It was not a

strange way, however, of dividing the now more complex

——————

4 The Court believes that the fact that this “new requirement . . . has

no predecessor provision” suggests that it is nonjurisdictional. Ante, at

6, n. 3. To begin with, it is not that new, and it has a predecessor

provision; it merely adds detail to the jurisdictional opinion that was

previously required. But even if the requirement were entirely unprec-

edented, when it appears within a textual structure that makes it

jurisdictional (as our opinion in Torres v. Oakland Scavenger Co., 487

U. S. 312 (1988), held, see infra, at 10–12), it would be an entirely

unprecedented jurisdictional provision.

5 The Court’s opinion suggests that “[i]t would seem somewhat coun-

terintuitive to render a panel of court of appeals judges powerless to act

on appeals based on COAs that Congress specifically empowered one

court of appeals judge to grant.” Ante, at 8. To begin with, we do not

think that an anomaly. It makes entire sense to enable a single circuit

judge to nip improper appeals in the bud, sparing parties the trouble of

an appeal, and courts the expenditure of three times as much judicial

energy. But if it were an anomaly, it would be one that existed as well

under the prior statute, which was held to be jurisdictional.

10 GONZALEZ v. THALER

SCALIA, J., dissenting

and lengthy provision into manageable subsections.

Stare Decisis Effect of Torres

In addition to the fact that conditions attached to court-

to-court appeal have always been held jurisdictional, and

the fact that this statute’s predecessor was held to be so,

we have considered, and found to be jurisdictional, a stat-

ute presenting precisely what is at issue here: a provision

governing court-to-court appeals which made particular

content a required element of a document that the statute

said was necessary for jurisdiction; and which did that in a

separate section that “excluded the jurisdictional terms,”

ante, at 10. That case flatly contradicts today’s holding.

In Torres v. Oakland Scavenger Co., 487 U. S. 312, we

dealt with Rule 3(c)(1) of the Federal Rules of Appellate

Procedure. Rule 3(a) of those Rules makes a notice of

appeal necessary to appellate jurisdiction—just as

§2253(c)(1) makes a certificate of appealability necessary.

And Rule 3(c)(1), which, like §2253(c)(3), does not contain

jurisdictional language, says what the requisite notice of

appeal must contain—just as §2253(c)(3) says what the

requisite certificate of appealability must contain:

“The notice of appeal must:

“(A) specify the party or parties taking the appeal

by naming each one in the caption or body of the no-

tice . . . ;

“(B) designate the judgment, order, or part thereof

being appealed; and

“(C) name the court to which the appeal is taken.”

In Torres we held that the Court of Appeals lacked juris-

diction over the appeal of a party not properly named in

the notice of appeal. 487 U. S., at 314–315. The parallel

is perfect.

The Court claims that the jurisdictional consequences of

Rule 3(c) were “ ‘imposed by the legislature,’ ” ante, at 12

Cite as: 565 U. S. ____ (2012) 11

SCALIA, J., dissenting

(quoting Torres, supra, at 318), which according to the

Court’s analysis “ ‘clearly state[d],’ ” ante, at 6 (quoting

Arbaugh, 546 U. S., at 515), that Rule 3(c) is jurisdictional.

But the legislature there did precisely what it did here:

made a particular document necessary to jurisdiction and

then specified what that document must contain.6 I cer-

tainly agree that that is a clear statement that a docu-

ment with the requisite content is necessary to jurisdic-

tion. But the Court does not. So to distinguish Torres it

has to find something else in Rule 3(c) that provided a

“clear statement” of what “Congress intended,” ante, at 6–

7. The best it can come up with, ante, at 12, is an unclear

statement, and that not from Congress but from Advisory

Committee Notes referred to in the Torres opinion. Such

Notes are (of course) “the product of the Advisory Commit-

tee, and not Congress,” and “they are transmitted to Con-

gress before the rule is enacted into law.” United States v.

Vonn, 535 U. S. 55, 64, n. 6 (2002). They are, in other

words, a species of legislative history. I know of no prece-

dent for the proposition that legislative history can satisfy

a clear-statement requirement imposed by this Court’s

opinions. Does today’s distinguishing of Torres mean that

legislative history can waive the sovereign immunity of

the United States? See United States v. Nordic Village,

——————

6 The Court’s claim that “Torres involved . . . a different textual, con-

textual, and historical backdrop,” ante, at 13, n. 8, does not withstand

scrutiny. First, consider the “textual backdrop.” The Court cannot

really believe that Rule 3(c)(1)’s statement that a notice of appeal “must

. . . specify” the appealing party is “ ‘clear’ jurisdictional language,” ante,

at 7, while §2253(c)(3)’s “shall indicate” the issue or issues is not. If it

did, it would say as much, since that would readily distinguish Torres.

And then consider the “contextual” (whatever that means) and “histor-

ical backdrop.” Each provision, in mandatory-but-not-jurisdictional

language, specifies what another document, itself jurisdictional in light

of statutory text and history, must contain. The two cases are, of

course, literally “different,” ante, at 13, n. 8, but not in any legally

relevant way.

12 GONZALEZ v. THALER

SCALIA, J., dissenting

Inc., 503 U. S. 30, 33–34 (1992). Or abrogate the sover-

eign immunity of the States? See Atascadero State Hos-

pital v. Scanlon, 473 U. S. 234, 242 (1985). Or give retro-

active effect to new legislation? See Greene v. United

States, 376 U. S. 149, 160 (1964). Or foreclose review of

agency actions? See Abbott Laboratories v. Gardner, 387

U. S. 136, 141 (1967). Today’s opinion is in this respect a

time-bomb.

To make matters worse, the Advisory Committee Note

considered by the Torres Court—as “support for [its]

view,” 487 U. S., at 315—did not clearly say that Rule

3(c)’s requirements were jurisdictional. It said this:

“ ‘Rule 3 and Rule 4 combine to require that a notice

of appeal be filed with the clerk of the district court

within the time prescribed for taking an appeal. Be-

cause the timely filing of a notice of appeal is “manda-

tory and jurisdictional,” United States v. Robinson,

361 U. S. 220, 224 (1960), compliance with the provi-

sions of those rules is of the utmost importance.’ ” 487

U. S., at 315 (quoting 28 U. S. C. App., p. 467; altera-

tion omitted and emphasis added).

To say that timely filing of a notice of appeal is jurisdic-

tional, and that placing within the notice of appeal what

Rule 3 says it must contain is “of the utmost importance,”

does not remotely add up to a clear statement that placing

within the notice of appeal what Rule 3 says it must con-

tain is jurisdictional. There is simply no principled basis

for saying that Torres satisfies the “clear-statement prin-

ciple,” ante, at 6, except the commonsense notion that

when a document is made jurisdictional, and the required

contents of that document specified, a document that does

not contain those contents cannot confer jurisdiction.7

——————

7 The Court also tries to distinguish Torres on the ground that failure

to comply with Rule 3 presented a different “possibility of gamesman-

Cite as: 565 U. S. ____ (2012) 13

SCALIA, J., dissenting

The Court is not willing to say that Torres is no longer

good law, but I doubt whether future litigants will be so

coy. They know that in the past, to avoid the uncongenial

rigidity of the rule that procedures attending court-to-

court appeals are jurisdictional, we have performed won-

drous contortions to find compliance with those rules. For

example, in Smith v. Barry, 502 U. S. 244, 248 (1992), we

held that an “informal brief” filed after a defective notice

of appeal counted as a valid notice of appeal. In Foman v.

Davis, 371 U. S. 178, 181 (1962), we held that a notice of

appeal from the denial of a motion to vacate the judgment

was also a notice of appeal from the underlying judgment.

And in Houston v. Lack, 487 U. S. 266, 270 (1988), we held

that a prisoner’s notice of appeal was “filed” when it was

delivered to prison authorities for forwarding to the dis-

trict court. These (shall we say) creative interpretations of

the procedural requirements were made necessary by the

background principle that is centuries old: “[I]f the mode

prescribed for removing cases by writ of error or appeal

be too strict and technical, and likely to produce inconven-

ience or injustice, it is for Congress to provide a remedy

by altering the existing laws; not for the court.” United

States v. Curry, 6 How. 106, 113 (1848). But if we have

been willing to expose ourselves to ridicule in order to

approve implausible compliance with procedural prerequi-

sites to appeal, surely we may be willing to continue and

expand the process of simply converting those obnoxious

prerequisites into the now favored “claims processing

rules,” enabling us to avoid unseemly contortions by simp-

——————

ship,” ante, at 13, from that presented here. I fail to see the relevance

of that happenstance. The premise of the Court’s opinion is that the

question of jurisdiction vel non is governed by a “clear-statement

principle,” ante, at 6. The statement here is precisely as clear as the

statement in Torres. Do we enforce clear statements only when there is

a “possibility of gamesmanship”? The Court’s free-wheeling purposiv-

ism defies textual analysis.

14 GONZALEZ v. THALER

SCALIA, J., dissenting

ly invoking the ever-judge-friendly principles of equity.

What began as an effort to “ ‘bring some discipline’ to the

use of the term ‘jurisdictional,’ ” ante, at 5 (quoting Hen-

derson, 562 U. S., at ___ (slip op., at 5)), shows signs of

becoming a libertine, liberating romp through our estab-

lished jurisprudence.

II

A few remaining points raised by the Court’s opinion

warrant response.

The Court holds that the requirement imposed by para-

graph (c)(2) (that a COA may issue “only if the applicant has

made a substantial showing of the denial of a constitution-

al right”) is not jurisdictional, and says that “[i]t follows

that §2253(c)(3) is nonjurisdictional as well.” Ante, at 7.

I need not reach the issue whether (c)(2) is jurisdictional—

though it seems to me that the Court disposes rather

summarily of the Solicitor General’s view that it is. And I

need not confront the Court with the back-at-you argu-

ment that if (c)(3) is jurisdictional (as I think) then (c)(2) is

as well. For whether one runs it backwards or forwards,

the argument is a bad one. Assuming that (c)(2) is nonju-

risdictional, it does not at all “follow” that (c)(3) is nonju-

risdictional as well. Paragraph (c)(3) is jurisdictional not

because it is located in subsection (c), but because it de-

scribes the required content of a COA. Paragraph (c)(2)

does not; it sets forth the criterion for a COA’s issuance. A

judge may apply that criterion erroneously but still pro-

duce a COA that (as paragraph (c)(3) requires) “indicate[s]

which specific issue or issues satisfy the showing required

by paragraph (2).” It no more follows that the erroneous-

ness of the judge’s indication must destroy the jurisdiction

that the COA creates, than it followed under the predeces-

sor statute that the erroneousness of the certification of

probable cause for an appeal destroyed the jurisdiction

Cite as: 565 U. S. ____ (2012) 15

SCALIA, J., dissenting

that the certification created.8 The two issues are quite

separate: what the judge must find, and what the COA (or

certification) must contain.

The Court points out that Gonzalez raised the Sixth

Amendment issue in his application for a COA, that “[a]

petitioner, having successfully obtained a COA, has no

control over how the judge drafts the COA,” and that the

petitioner, “as in Gonzalez’s case, may have done every-

thing required of him by law.” Ante, at 8. Perhaps it is

true that the defective COA was not at all Gonzalez’s

fault—though he could have promptly moved to amend it.

But no-fault elimination of jurisdiction is not forbidden.

In Bowles v. Russell, 551 U. S. 205 (2007), we enforced a

time limit on notice of appeal where the district court had

purported to extend the time to file and the appellant had

complied with the court’s order. Id., at 207, 213–214. It

did not matter that the fault lay with the court.

Finally, the Court points out that treating §2253(c)(3) as

jurisdictional would waste a lot of time. “Even if addition-

al screening of already-issued COAs for §2253(c)(3) defects

could further winnow the cases before the courts of ap-

peals, that would not outweigh the costs of further delay

from the extra layer of review.” Ante, at 9. But that is not

an argument directed to the statute before us; it is an

argument directed against enforcement of all jurisdiction-

al requirements (all of which, I suspect, are the object of

the Court’s mounting disfavor). And the argument may

not even be true, except in the (presumably rare) case

where the jurisdictional prescription is disregarded. Over

——————

8 We held in Nowakowski v. Maroney, 386 U. S. 542, 543 (1967) (per

curiam), that “when a district judge grants [a certificate of probable

cause], the court of appeals must grant an appeal . . . and proceed to a

disposition of the appeal in accord with its ordinary procedure.” See

also Carafas v. LaVallee, 391 U. S. 234, 242 (1968) (Nowakowski

requires “that the appeal [be] considered on its merits . . . in cases

where a certificate of probable cause has been granted”).

16 GONZALEZ v. THALER

SCALIA, J., dissenting

the long term, the time saved to judges and lawyers by an

enforceable requirement that appeals be screened by a

single judge may vastly outweigh the time wasted by the

occasional need for enforcement. That, it seems to me, is

what Congress believed.

* * *

Terminology is destiny. Today’s holding, and the ero-

sion of our prior jurisprudence that will perhaps follow

upon it, is foreshadowed and facilitated by the unfortunate

terminology with which we have chosen to accompany our

campaign to “bring some discipline” to determinations of

jurisdiction. We have said that the universe of rules

placing limitations upon the courts is divided into (1)

“claims processing rules,” and (2) jurisdiction-removing

rules. Unless our prior jurisprudence is to be repudiated,

that is a false dichotomy. The requirement that the un-

successful litigant file a timely notice of appeal, for exam-

ple, is (if the term is to have any meaning) a claims-

processing rule, ordering the process by which claims are

adjudicated. Yet as discussed above, that, and all proce-

dures that must be followed to proceed from one court to

another, have always been deemed jurisdictional. The

proper dichotomy is between claims processing rules that

are jurisdictional, and those that are not. To put it other-

wise suggests a test for jurisdiction that is not to be found

in our cases.9

——————

9 It may well be that what I have called a false dichotomy was indeed

meant to revise our jurisprudence. In Kontrick v. Ryan, 540 U. S. 443,

455 (2004), we said by way of dictum the following: “Clarity would be

facilitated if courts and litigants used the label ‘jurisdictional’ not for

claim-processing rules, but only for prescriptions delineating the

classes of cases (subject-matter jurisdiction) and the persons (personal

jurisdiction) falling within a court’s adjudicatory authority.” Unless an

appeal lacking a timely filing of a notice of appeal can be considered one

that falls outside the appellate court’s “subject-matter jurisdiction”

(which would be an odd usage), Kontrick’s dictum effectively announced

Cite as: 565 U. S. ____ (2012) 17

SCALIA, J., dissenting

At the end of the day, the indication requirement in

§2253(c)(3) is “ ‘imposed by the legislature and not by

the judicial process.’ ” Torres, 487 U. S., at 318 (quoting

Schiavone v. Fortune, 477 U. S., 21, 31 (1986)). Whether

or not its enforcement leads to a harsh result, wastes time

in this particular case, or (though the Court does not give

this as a reason) prevents us from reaching a circuit

conflict we are dying to resolve, we are obliged to enforce it.

I respectfully dissent.

——————

today’s decision, the overruling of Torres and Browder v. Director, Dept.

of Corrections of Ill., 434 U. S. 257 (1978), and the elimination of

jurisdictional treatment for all procedural requirements for appeal.

That the announcement has not been heeded is demonstrated by

Bowles v. Russell, 551 U. S. 205 (2007) (decided after Kontrick), which

(over the dissent of the author of Kontrick) reaffirmed Browder.

I

confess error in joining the quoted portion of Kontrick.