Carey v. Saffold, 536 U.S. 214, 16 (2002)

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Cite as: 536 U. S. 214 (2002)

Kennedy, J., dissenting

issue though is not what "pending" means, but when is an "application . . . pending." The Court asserts that "an application is pending as long as the ordinary state collateral review process is 'in continuance' . . . ." Ante, at 219-220. That is only true, of course, if "application" means the "ordi-nary state collateral review process," a proposition that finds no support in Webster's Third. Indeed, it is inconsistent with Artuz v. Bennett, 531 U. S. 4 (2000), which recognized that an "application" is a "document" distinct from the legal claims contained within it. Id., at 8, 9. The word, "application," appears in numerous other places in the laws governing federal habeas corpus. E. g., 28 U. S. C. 2242 ("application for a writ of habeas corpus shall be in writing signed and verified"); 2243 (a "judge entertaining an application for a writ of habeas corpus"). In each place, it is clear that the statute refers to a specific legal document; in none is the word used as a substitute for the ordinary collateral review process. Without discussing Artuz or these many statutory references, the Court gives "application" a new meaning, one that does not even require the existence of any document evidencing the "application," and one that embraces the multiple petitions, appeals, and other filings that constitute the "ordinary state collateral review process." Ante, at 219-220.

The Court explains that the original petition in the California Supreme Court is part of the ordinary collateral review process because it functions as an appeal under California law. California, the Court says, "does not require, technically speaking, appellate review of a lower court determination. Instead it contemplates that a prisoner will file a new 'original' habeas petition." Ante, at 221. This is an incorrect statement of California law. While California does not permit appeals of the California Superior Court's denial of habeas corpus, it does provide for "appellate review" of the denial of a petition for habeas corpus by the California Court of Appeal. That appeal is not just available; as the Court concedes, ante, at 224-225, the California Supreme

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