Slack v. McDaniel, 529 U.S. 473, 19 (2000)

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

Opinion of Scalia, J.

(Scalia, J., dissenting), a distortion of the natural meaning of the term "second or successive."

The opinion relies on Martinez-Villareal, together with Rose v. Lundy, 455 U. S. 509 (1982), to conclude that a prisoner whose federal petition is dismissed to allow exhaustion may return to federal court without having his later petition treated as second or successive, regardless of what claims it contains. Neither the holdings nor even the language of those opinions suggest that proposition. As for holdings: Martinez-Villareal did not even involve the issue of exhaustion, and so has no bearing upon the present case. The narrow holding of Rose v. Lundy was that a habeas petition containing both exhausted and unexhausted claims must be dismissed, but it can be fairly said to have embraced the proposition that the petitioner could return with the same claims after they all had been exhausted. This latter proposition could be thought to rest upon the theory that a petition dismissed for lack of exhaustion is a petition that never existed, so that any other later petition would not be second or successive. Or it could be thought to rest upon the theory that the later refiling of the original claims, all of them now exhausted, is just a renewal of the first petition, implicitly authorized by the dismissal to permit exhaustion. The former theory is counterfactual; the latter is quite plausible.

The language the Court quotes from Rose and Martinez-Villareal also does not justify the Court's mixed-petitions-don't-count theory. The quotation from Rose says only that " 'prisoners who . . . submit mixed petitions . . . are entitled to . . . exhaust the remainder of their claims.'" Ante, at 486 (quoting Rose, supra, at 520 (emphasis added)). This does not suggest that they are entitled to add new claims, or to return, once again, without accomplishing the exhaustion that the court dismissed the petition to allow. And the quotation from Martinez-Villareal indicates only that when a prisoner whose habeas petition was dismissed for failure to exhaust state remedies " 'then did exhaust those reme-


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