Carey v. Saffold, 536 U.S. 214, 15 (2002)

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Kennedy, J., dissenting

edies available in the California Supreme Court are no different from those available in most other state supreme courts. Like 36 other States, California allows its high court both to reverse the denial of habeas corpus in the lower court and to grant an original petition for habeas outright. In California, as in other States, these procedures differ in more than name. They differ with respect to the question in this case: whether an application was pending in the 4-month period between the denial of respondent's habeas petition in the California Court of Appeal and his filing of a new petition in the California Supreme Court.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. 2244(d)(1), provides a 1-year statute of limitations for filing a federal habeas corpus petition, but it tolls the limitations period while a "properly filed application" for collateral review is "pending" in the state courts. The Court now holds that on the day before respondent filed an original petition in the California Supreme Court, his application was "properly filed" and "pending" somewhere. The Court does not say what that application was, nor does it identify the court in which it was filed. This is because nothing had been under consideration or awaiting the result of an appeal for four months, since the California Court of Appeal had denied respondent's previous application.

Instead of identifying a particular pending application, the Court relies upon an expansive definition of the term. The Court begins by defining "pending," offering one definition for when the word is used as an adjective and another for when used as a preposition. See ante, at 219. As the statute only uses the word as an adjective (tolling while the application "is pending"), the latter definition is irrelevant and misleading. When used as an adjective, the definition does not help the Court. The Court says "pending" means " 'in continuance' or 'not yet decided.' " Ibid. (quoting Webster's Third New International Dictionary 1669 (1993)). The real

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