Cite as: 533 U. S. 167 (2001)
Breyer, J., dissenting
Justice Breyer, with whom Justice Ginsburg joins, dissenting.
The federal habeas corpus statute limits the period of time during which a state prisoner may file a federal habeas petition to one year, ordinarily running from the time the prisoner's conviction becomes final in the state courts. See 28 U. S. C. § 2244(d) (1994 ed., Supp. V). Section 2244(d)(2) tolls that 1-year period while "a properly filed application for State post-conviction or other collateral review . . . is pending." The question before us is whether this tolling provision applies to federal, as well as state, collateral review proceedings. Do the words "other collateral review" encompass federal habeas corpus proceedings? I believe that they do.
To understand my conclusion, one must understand why the legal issue before us is significant. Why would a state prisoner ever want federal habeas corpus proceedings to toll the federal habeas corpus limitations period? After all, the very point of tolling is to provide a state prisoner adequate time to file a federal habeas petition. If the prisoner has already filed that petition, what need is there for further tolling?
The answer to this question—and the problem that gives rise to the issue before us—is that a federal court may be required to dismiss a state prisoner's federal habeas petition, not on the merits, but because that prisoner has not exhausted his state collateral remedies for every claim presented in the federal petition. See 28 U. S. C. § 2254(b)(1) (1994 ed., Supp. V) (requiring petitioners to exhaust state remedies before filing federal habeas petition); cf. Rose v. Lundy, 455 U. S. 509, 510 (1982) (holding, under predecessor to current § 2254, that district courts cannot reach the merits of "mixed" petitions containing both exhausted and unexhausted claims). Such a dismissal means that a prisoner wishing to pursue the claim must return to state court,
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