652
Thomas, J., dissenting
Ante, at 644. Such concerns are not, in my view, sufficient to override the statute's plain meaning. And to the extent concerns about habeas practice motivate the Court's decision, it bears repeating that federal habeas corpus is a statutory right and that this Court, not Congress, has expanded the availability of the writ. Before this judicial expansion, a prisoner seeking a writ of habeas corpus was permitted to challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See Wright v. West, 505 U. S. 277, 285-286 (1992) (opinion of Thomas, J.). A Ford claim obviously does not present such a challenge.3 A statute that has the effect of precluding adjudication of a claim that for most of our Nation's history would have been considered noncognizable on habeas can hardly be described as "perverse."
Accordingly, whether one considers respondent's March 1993 federal habeas petition to have been his first habeas application—because his three previous applications had been dismissed for failure to exhaust—or his fourth—be-cause respondent had already filed three previous habeas applications by that time—his May 1997 request for relief was undoubtedly either a "second" (following his first) or "successive" (following his fourth) habeas application. Respond-ent's Ford claim, presented in this second or successive application, should have been dismissed as a "claim . . . presented in a prior application." § 2244(b)(1).
3 There is an additional reason why a state prisoner's Ford claim may not be cognizable on federal habeas. A state prisoner may bring a federal habeas petition "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. § 2254. A Ford claim does not challenge either the prisoner's underlying conviction or the legality of the sentence; it challenges when (or whether) the sentence can be carried out.
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16Last modified: October 4, 2007