Slack v. McDaniel, 529 U.S. 473, 17 (2000)

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

Opinion of the Court

would become a problem, however, it can be countered without upsetting the established meaning of a second or successive petition.

First, the State remains free to impose proper procedural bars to restrict repeated returns to state court for postconviction proceedings. Second, provisions of AEDPA may bear upon the question in cases to which the Act applies. AEDPA itself demonstrates that Congress may address matters relating to exhaustion and mixed petitions through means other than rules governing "second or successive" petitions. E. g., 28 U. S. C. 2254(b)(2) (1994 ed., Supp. III). Third, the Federal Rules of Civil Procedure, applicable as a general matter to habeas cases, vest the federal courts with due flexibility to prevent vexatious litigation. As Slack concedes, in the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rule Civ. Proc. 41(b). In this case, however, the initial petition was dismissed without condition and without prejudice. We reject the State's argument that refusing to give a new meaning to the established term "second or successive" opens the door to the abuses described.


Slack has demonstrated that reasonable jurists could conclude that the District Court's abuse of the writ holding was wrong, for we have determined that a habeas petition filed after an initial petition was dismissed under Rose v. Lundy without an adjudication on the merits is not a "second or successive" petition. Whether Slack is otherwise entitled to the issuance of a COA is a question to be resolved first upon


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