Carey v. Saffold, 536 U.S. 214, 19 (2002)

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Kennedy, J., dissenting

3d 913, 922, 221 Cal. Rptr. 645, 649 (1985). As the new petition constitutes a new application in form and function, the California Supreme Court has long recognized what our Court today refuses to see. After the denial of a habeas petition, there is no application "pending" in any court:

"Where a petitioner was remanded to custody by a superior court, and the proceeding instituted in that court was thus terminated and was no longer a matter pending therein, he could inaugurate a new proceeding for relief in another court and can still do so, but is now limited in the making of a new application by statutory provision to a higher court, either the district court of appeal having jurisdiction, or the supreme court." In re Zany, 164 Cal. 724, 727, 130 P. 710 (1913).

The petition thus is not pending even under state law: Each habeas petition is a "new proceeding for relief," ibid., and is not the same case, let alone the same application. Each time a California court denies a petition, the application is "no longer a matter pending," ibid., before any court, because it can no longer be granted by that court or any other court in the future.

The Court's contrary conclusion does not depend upon any reasonable construction of a "pending application." It depends entirely upon the proposition that when California says "original writ," it means "appeal," and federal courts must not privilege form over substance. But California provides for an appeal, see Cal. Penal Code Ann. 1506 (West 2000), and none was taken here. It is impossible to understand why the Court has ignored this provision by which California provides for an appeal, just like every other State.

The Court also has ignored the fact that most other States provide for original writs, just like California. As a consequence, the Court's error is of substantial significance beyond this case; for the California Supreme Court's original jurisdiction to issue writs of habeas corpus is not some quirk

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