Slack v. McDaniel, 529 U.S. 473, 4 (2000)

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subject, McCleskey v. Zant, 499 U. S. 467, 487, and states: "A second or successive petition [alleging new and different grounds] may be dismissed if . . . the judge finds that the failure . . . to assert those grounds in a prior petition constituted an abuse of the writ." The "second or successive petition" phrase is a term of art given substance in, e. g., Rose v. Lundy, 455 U. S., at 510, which held that a district court must dismiss habeas petitions containing both exhausted and unexhausted claims, but contemplated that the prisoner could return to federal court after the requisite exhaustion, id., at 520-521. Thus, a petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as any other first petition and is not a second or successive petition. Neither Rose v. Lundy nor Stewart v. Martinez-Villareal, 523 U. S. 637 (1998), supports the State's contention that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. It is instead more appropriate to treat the initial mixed petition as though it had not been filed, subject to whatever conditions the court attaches to the dismissal. Accordingly, Slack's 1995 petition should not have been dismissed on the grounds that it was second or successive. To the extent that the Court's ruling might allow prisoners repeatedly to return to state court and thereby inject undue delay into the collateral review process, the problem can be countered under the States' power to impose proper procedural bars and the federal courts' broad powers to prevent duplicative or unnecessary litigation. Pp. 485-489.

(b) Thus, Slack has demonstrated that reasonable jurists could conclude that the District Court's abuse of the writ holding was wrong. Whether Slack is otherwise entitled to the issuance of a COA is a question to be resolved first upon remand. Pp. 489-490.

Reversed and remanded.

Kennedy, J., delivered the opinion of the Court, Part I of which was unanimous, Part II of which was joined by Rehnquist, C. J., and O'Connor, Scalia, Thomas, and Ginsburg, JJ., and Parts III and IV of which were joined by Rehnquist, C. J., and Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter and Breyer, JJ., joined, post, p. 490. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined, post, p. 490.

Michael Pescetta, by appointment of the Court, 526 U. S. 1049, argued and reargued the cause for petitioner. With him on the briefs was Timothy P. O'Toole.

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