Carey v. Saffold, 536 U.S. 214, 17 (2002)

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Kennedy, J., dissenting

Court has said that it is the preferred practice. See In re Reed, 33 Cal. 3d 914, 918, and n. 2, 663 P. 2d 216, 217, and n. 2 (1983). Section 1506 of the Cal. Penal Code Ann. (West 2000) provides: "[I]n all criminal cases where an application for a writ of habeas corpus has been heard and determined in a court of appeal, either the defendant or the people may apply for a hearing in the Supreme Court." Respondent had 10 days after the Court of Appeal denied his petition to file a petition for review. Cal. App. Rules of Court 28(b), 50(b) (2002). The Court's analysis is thus premised on a mis-interpretation of California law.

Had respondent filed the appeal provided by Cal. Penal Code Ann. 1506 (West 2000), his application might have remained pending during the 10 days while he prepared his appeal and while the appeal was under consideration by the California Supreme Court. This is because an appeal is not a new application; rather, it is a request that the appellate court order the lower court to grant the original application. Congress used the word "application" in precisely this way for federal petitions for habeas corpus—distinguishing between "appeals," see 28 U. S. C. 2253, and second or successive "applications," see 2244. Thus, an application may remain "pending" in the lower court while the prisoner pursues his appeal, because the lower court may grant the original application at some point in the future.

An application does not remain pending, however, once the court that has denied it loses the power to ever grant it. When the Court of Appeal denied respondent's petition and respondent did not appeal, the petition became final and was no longer pending before that court. See Cal. App. Rule of Court 24 (2002) ("When a decision of a reviewing court is final as to that court, it is not thereafter subject to modification or rehearing by that court . . ."). Respondent could not ask the Court of Appeal to grant the application, and respondent could not request that the California Supreme Court order the Court of Appeal to grant the application.

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