Slack v. McDaniel, 529 U.S. 473, 14 (2000)

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Opinion of the Court

court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.

Slack commenced this habeas proceeding in the District Court in 1995, before AEDPA's effective date. Because the question whether Slack's petition was second or successive implicates his right to relief in the trial court, pre-AEDPA law governs, see Lindh v. Murphy, 521 U. S. 320 (1997), though we do not suggest the definition of second or successive would be different under AEDPA. See Stewart v. Martinez-Villareal, 523 U. S. 637 (1998) (using pre-AEDPA law to interpret AEDPA's provision governing "second or successive habeas applications"). The parties point us to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts as controlling the issue. The Rule incorporates our prior decisions regarding successive petitions and abuse of the writ, McCleskey v. Zant, 499 U. S. 467, 487 (1991), and states: "A second or successive petition [alleging new and different grounds] may be dismissed if . . . the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." As the text demonstrates, Rule 9(b) applies only to "a second or successive petition."

The phrase "second or successive petition" is a term of art given substance in our prior habeas corpus cases. The Court's decision in Rose v. Lundy, 455 U. S., at 510, instructs us in reaching our understanding of the term. Rose v. Lundy held that a federal district court must dismiss habeas corpus petitions containing both exhausted and unexhausted claims. The opinion, however, contemplated that the prisoner could return to federal court after the requisite exhaustion. Id., at 520 ("Those prisoners who . . . submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims"). It was only if a prisoner declined to return to state court and decided to proceed with his exhausted

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