Slack v. McDaniel, 529 U.S. 473, 15 (2000)

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

Opinion of the Court

claims in federal court that the possibility arose that a subsequent petition would be considered second or successive and subject to dismissal as an abuse of the writ. Id., at 520-521 (plurality opinion) ("[A] prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions").

This understanding of the second or successive rule was confirmed two Terms ago when we wrote as follows: "[N]one of our cases . . . have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition." Stewart v. Martinez-Villareal, supra, at 644. We adhere to this analysis. 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.

The State contends that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. Neither Rose v. Lundy nor Martinez-Villareal requires this result, which would limit a prisoner to claims made in a pleading that is often uncounseled, handwritten, and pending in federal court only until the State identifies one unexhausted claim. The proposed rule would bar the prisoner from raising nonfrivolous claims developed in the subsequent state exhaustion proceedings contemplated by the Rose dismissal, even though a federal court had yet to review a single constitutional claim. This result would be contrary to our admonition that the complete exhaustion rule is not to "trap the unwary pro se prisoner." Rose supra, at 520 (internal quotation marks omitted). It is instead more appropriate to treat the initial mixed petition


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