Cite as: 521 U. S. 320 (1997)
Rehnquist, C. J., dissenting
At this point the Court's analysis stops. Based on the weak inference from Congress' designation of chapter 154 as applying to pending cases and a strained reading of § 2264, the Court concludes that Congress impliedly intended for chapter 153 not to apply to pending cases. I would go on, and apply our ordinary retroactivity principles, as Congress no doubt assumed that we would.
First, we have generally applied new procedural rules to pending cases. Landgraf, 511 U. S., at 275; see also Beazell v. Ohio, 269 U. S. 167, 170-171 (1925); Ex parte Collett, 337 U. S. 55, 71 (1949); Dobbert v. Florida, 432 U. S. 282, 293-294 (1977); Collins v. Youngblood, 497 U. S. 37, 45 (1990). This is because "rules of procedure regulate secondary rather than primary conduct." Landgraf, supra, at 275. Here, the primary conduct occurred when Lindh murdered two people in the sheriff's office of the City-County Building in Madison, Wisconsin. Obviously, the AEDPA in no way purports to regulate that past conduct. Lindh's state-court proceedings constituted secondary conduct. Under our retroactivity
tially based. See Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal (Aug. 23, 1989). The Committee's Comment to Proposed § 2259 (which tracks the AEDPA's § 2264) explained as follows: "As far as new or 'unexhausted' claims are concerned, [this section] represents a change in the exhaustion doctrine as articulated in Rose v. Lundy, 455 U. S. 509 (1982). [This section] bars such claims from consideration unless one of the . . . exceptions is applicable. The prisoner cannot return to state court to exhaust even if he would like to do so. On the other hand, if [an exception] is applicable, the district court is directed to conduct an evidentiary hearing and to rule on the new claim without first exhausting state remedies as Rose v. Lundy now requires. Because of the existence of state procedural default rules, exhaustion is futile in the great majority of cases. It serves the state interest of comity in theory, but in practice it results in delay and undermines the state interest in the finality of its criminal convictions. The Committee believes that the States would prefer to see post-conviction litigation go forward in capital cases, even if that entails a minor subordination of their interest in comity as it is expressed in the exhaustion doctrine." Id., at 22-23 (emphasis added).
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