Carey v. Saffold, 536 U.S. 214, 21 (2002)

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Kennedy, J., dissenting

many, if not all, of the States mentioned above, a prisoner like respondent, relying upon today's decision, will be able to extend the federal tolling period, perhaps indefinitely, by filing a petition for an original writ of habeas corpus in a state supreme court many months after his state appeal has been denied. See Welch v. Newland, 267 F. 3d 1013 (CA9 2001) (tolling the federal limitations for a 4-year gap).

In those jurisdictions the Court will create a strange anomaly. Now an application can be both pending and not pending, taking on what the Seventh Circuit has described as a "Cheshire-cat like quality, both there and not there at the same time." Fernandez v. Sternes, 227 F. 3d 977, 980 (2000). If, for instance, the Court's hypothetical prisoner declined to file an appeal to the State's highest court, and he went to federal court more than a year later, his petition would be dismissed as time barred. As no application had been on the docket of any court for a year, and no petition that he had addressed to any state court could ever be granted, no "properly filed application" was "pending" anywhere. Under the Court's view, however, it would be premature to say that the federal statute of limitations had expired. The prisoner could file a new petition invoking the original jurisdiction of the state high court, and if the court denied it on the merits (or without comment), a subsequent federal application could be timely even though the earlier one was too late.

Under today's ruling, the federal court would be required to rule that the state petition, which was not pending before, had retroactively become so, and the prisoner's new federal application was timely. This is not a sensible way of determining when an application is "pending" under the federal tolling provision. Whether an application is pending at any given moment should be susceptible of a yes or no answer. On the Court's theory the answer will often be "impossible to tell," because it depends not on whether an application is

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