Slack v. McDaniel, 529 U.S. 473, 16 (2000)

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Opinion of the Court

as though it had not been filed, subject to whatever conditions the court attaches to the dismissal. Rose v. Lundy dictated that, whatever particular claims the petition contained, none could be considered by the federal court.

Slack's 1991 petition was dismissed under the procedure established in Rose v. Lundy. No claim made in Slack's 1991 petition was adjudicated during the three months it was pending in federal court. As such, the 1995 petition should not have been dismissed on the grounds that it was second or successive. Reasoning to the contrary found in the Court of Appeals' Farmer decision, rendered before Martinez-Villareal, is incorrect. See also In re Turner, 101 F. 3d 1323 (CA9 1997) (refusing to apply rules governing second or successive petitions to a petitioner whose prior habeas petition had been dismissed for failure to exhaust). Our view that established practice demonstrates that Slack's 1995 petition is not second or successive is confirmed as well by opinions of the Courts of Appeals which have addressed the point under similar circumstances. E. g., Carlson v. Pitcher, 137 F. 3d 416, 420 (CA6 1998) ("We join with every other court to consider the question, and hold that a habeas petition filed after a previous petition has been dismissed on exhaustion grounds is not a 'second or successive' petition"); Turner, supra; Christy v. Horn, 115 F. 3d 201, 208 (CA3 1997); Dickinson v. Maine, 101 F. 3d 791 (CA1 1996); Camarano v. Irvin, 98 F. 3d 44, 45-46 (CA2 1996).

The State complains that this rule is unfair. The filing of a mixed petition in federal court requires it to appear and to plead failure to exhaust. The petition is then dismissed without prejudice, allowing the prisoner to make a return trip through the state courts to exhaust new claims. The State expresses concern that, upon exhaustion, the prisoner would return to federal court but again file a mixed petition, causing the process to repeat itself. In this manner, the State contends, a vexatious litigant could inject undue delay into the collateral review process. To the extent the tactic

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