Slack v. McDaniel, 529 U.S. 473, 20 (2000)

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Opinion of Scalia, J.

dies' " and refile in federal court, the court " 'could adjudicate these claims under the same standard as would govern those made in any other first petition.' " Ante, at 487 (quoting Martinez-Villareal, 523 U. S., at 644 (emphasis added)). This does not require treating the later filed petition as a "first" petition regardless of whether it bears any resemblance to the petition initially filed. In fact, Martinez-Villareal clearly recognized the potential significance of raising a new claim rather than merely renewing an old one: It held that a petition raising a claim of incompetence to be executed previously dismissed as premature was not second or successive, but expressly distinguished, and left open, the situation where the claim had not been raised in the earlier petition. See id., at 645, n.

The State understandably fears the consequences of the Court's approach, which would allow federal petitions to be repeatedly filed and dismissed for lack of exhaustion, requiring the State repeatedly to appear and expend its resources, with no help in sight from supposed limitations on "second or successive" petitions. The Court reassuringly observes that this problem can be countered in other ways, without "upsetting the established meaning of a second or successive petition." Ante, at 489. But as discussed above, it is not "established" that a first petition ceases to be a first petition when it is dismissed to permit exhaustion. And though the problem of repetitive filings after dismissals for lack of exhaustion can of course be countered in other ways, so can the problem of repetitive filings for all other reasons. It happens to be the whole purpose of the "second or successive" provision to solve precisely that problem—directly checking the "vexatious litigant," ante, at 488, rather than hoping that the courts will use a patchwork of other provisions to achieve the same end. I do not disagree with the Court that district courts may be able to limit repeated filings through appropriate orders pursuant to Federal Rules of Civil Procedure 41(a) and (b). This burden on district courts would not be

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