Cite as: 523 U. S. 637 (1998)
Thomas, J., dissenting
(AEDPA), 110 Stat. 1218, a federal court could grant relief on a claim in a second or successive application so long as the ground for relief had not already been "presented and determined," 28 U. S. C. § 2244(a) (emphasis added), or "adjudicated," § 2244(b), in a previous application. Claims presented in a petition dismissed for failure to exhaust are neither "determined" nor "adjudicated." Thus, the preAEDPA practice of permitting petitioners to raise claims already presented in applications dismissed for failure to exhaust says nothing about whether those later applications were considered second or successive.
Even if the Court were correct that such an application would not have been considered second or successive, such a case is altogether different from this case, in which only one of many claims was not adjudicated. In the former situation, the federal court dismisses the unexhausted petition without prejudice, see Rose v. Lundy, 455 U. S. 509, 520-522 (1982), so it could be argued that the petition should be treated as if it had never been filed. In contrast, when a court addresses a petition and adjudicates some of the claims presented in it, that petition is certainly an "application," and any future application must be "second or successive." 1 Otherwise, the court would have adjudicated the merits of claims that had not been presented in an "application." 2
Ultimately, the Court's holding is driven by what it sees as the "far reaching and seemingly perverse" implications for federal habeas practice of a literal reading of the statute.
1 If the Court's position is that respondent's May 1997 filing was an "application," but not a "second or successive" one, presumably 28 U. S. C. § 2244(b) (1994 ed., Supp. II) would not have precluded respondent from presenting, along with his claim under Ford v. Wainwright, 477 U. S. 399 (1986), a claim previously adjudicated on the merits, for § 2244(b) operates to bar only those claims presented in "second or successive" applications.
2 Even if a claim dismissed without prejudice could be treated as having never been presented, dismissal, as the Court concedes, would still be required because a Ford claim does not fit within § 2244(b)(2)(B)'s exceptions for claims not presented in prior applications. See ante, at 642.
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