184
Opinion of Stevens, J.
courts may well conclude that Congress simply overlooked the class of petitioners whose timely filed habeas petitions remain pending in district court past the limitations period, only to be dismissed after the court belatedly realizes that one or more claims have not been exhausted.2 See post, at 186 (Breyer, J., dissenting) (district courts on average take 268 days to dismiss petitions on procedural grounds; 10% remain pending more than 2 years). As a result, equitable considerations may make it appropriate for federal courts to fill in a perceived omission on the part of Congress by tolling AEDPA's statute of limitations for unexhausted federal habeas petitions. Today's ruling does not preclude that possibility, given the limited issue presented in this case and the Court's correspondingly limited holding.3
I concur in the Court's holding on the understanding that it does not foreclose either of the above safeguards against the potential for injustice that a literal reading of § 2244(d)(2) might otherwise produce.
866 (CA7 1996) (en banc), rev'd on other grounds, 521 U. S. 320 (1997); Ford v. Bowersox, 178 F. 3d 522, 523 (CA8 1999); Calderon v. District Court, 128 F. 3d 1283, 1286-1287 (CA9 1997), overruled on other grounds, 163 F. 3d 530, 539-540 (CA9 1998); Hoggro v. Boone, 150 F. 3d 1223, 1225-1226 (CA10 1998); Wilcox v. Florida Dept. of Corrections, 158 F. 3d 1209, 1211 (CA11 1998).
2 The question whether a claim has been exhausted can often be a difficult one, not just for prisoners unschooled in the immense complexities of federal habeas corpus law, see post, at 190-191 (Breyer, J., dissenting), but also for district courts, see, e. g., Morgan v. Bennett, 204 F. 3d 360, 369-371 (CA2 2000) (disagreeing with District Court's conclusion that claim had not been exhausted); Bear v. Boone, 173 F. 3d 782, 784-785 (CA10 1999) (same).
3 Thus the court below, which resolved the case based on its reading of 28 U. S. C. § 2244(d)(2) (1994 ed., Supp. V), and which therefore did not reach the question whether it "should exercise its equitable powers to exclude the [time] during which the first [habeas] petition was pending," 208 F. 3d 357, 362 (CA2 2000), is free to consider the issue on remand.
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