Carey v. Saffold, 536 U.S. 214, 20 (2002)

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

Kennedy, J., dissenting

of California law. At least 36 other States grant their supreme courts original jurisdiction over petitions for habeas corpus as well as appellate jurisdiction over a habeas determination in the lower courts. See Appendix, infra. Congress, of course, understands this distinction, since it has provided both procedures for our own Court. A state prisoner seeking to challenge the validity of his sentence may seek review of a lower court's decision by filing a petition for certiorari, 28 U. S. C. 1257, or he may file a petition for an original writ of habeas corpus, 2241. While the prisoner may obtain relief through either procedure, there is a clear distinction between an appeal—which requests that we order the lower court to grant an application pending before it—and a petition for a writ of habeas corpus—which requests that we grant the relief ourselves. Before this case no one thought that distinction to be merely one of form and not substance.

The Court is thus quite mistaken to conclude that its decision concerns only the procedures within California. The Court distinguishes California from other States because California "has engrained original writs—both at the appellate level and in the supreme court—into its normal collateral review process." Ante, at 224. This statement is not correct even for California. See supra, at 231-232. It may or may not be true for the four other States the Court cites, but even so the federal courts will have to test that point for dozens more. The Court's distinction between "appeal States" and "original writ States" is its own creation with no clear meaning under state law, not to mention a tie to the law Congress has enacted. Having departed from the sensible meaning of application, and the well-understood distinction between an appeal and an original writ, the Court now requires federal courts to define the ordinary collateral review procedures in each State. It may not be clear in how many States original writs will fall on the side of the ordinary, but it is clear that the question will be litigated. In

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