Slack v. McDaniel, 529 U.S. 473, 7 (2000)

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Cite as: 529 U. S. 473 (2000)

Opinion of the Court

gated in state court. Accordingly, Slack filed a motion seeking to hold his federal petition in abeyance while he returned to state court to exhaust the new claims. Without objection by the State, the District Court ordered the habeas petition dismissed "without prejudice." The order, dated February 19, 1992, further stated, "Petitioner is granted leave to file an application to renew upon exhaustion of all State remedies." Slack v. Director, Nev. Dept. of Prisons, No. CV-N-91-561 (D. Nev.), App. 22.

After an unsuccessful round of state postconviction proceedings, Slack filed a new federal habeas petition on May 30, 1995. The District Court later appointed counsel, directing him to file an amended petition or a notice of intention to proceed with the current petition. On December 24, 1997, counsel filed an amended petition presenting 14 claims for relief. The State moved to dismiss the petition. As its first ground, the State argued that Slack's petition must be dismissed because it was a mixed petition, that is to say a petition raising some claims which had been presented to the state courts and some which had not. As its second ground, the State cited Farmer v. McDaniel, 98 F. 3d 1548 (CA9 1996), and contended that, under the established rule in the Ninth Circuit, claims Slack had not raised in his 1991 federal habeas petition must be dismissed as an abuse of the writ.

The District Court granted the State's motion. First, the court relied on Farmer to hold that Slack's 1995 petition was "[a] second or successive petition," even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. The court then invoked the abuse of the writ doctrine to dismiss with prejudice the claims Slack had not raised in the 1991 petition. This left Slack with four claims, each having been raised in the 1991 petition; but one of these, the court concluded, had not yet been presented to the state courts. The court therefore dismissed Slack's remaining claims because they were in a


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