Carey v. Saffold, 536 U.S. 214, 22 (2002)

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

Kennedy, J., dissenting

under submission in a particular court but upon events that may occur at some later time.

The Court's insistence on treating an original writ as an appeal will create serious confusion in California—and else-where—for another reason. Federal courts will have to determine when an original writ is timely under California law because on the Court's holding only timely petitions cause an application to be (retroactively) pending. The problem, however, is that an original writ in California—like original writs elsewhere and unlike appeals in California and most everywhere else—does not have a strict time limit. Under California law the question is not whether a petition is "timely" but whether the prisoner exercised "due diligence" in filing his petition within a reasonable time after he becomes aware of the grounds for relief. In re Harris, 5 Cal. 4th 813, 828, n. 7, 855 P. 2d 391, 398, n. 7 (1993). This equitable concept is designed to be flexible, and it allows California courts to correct miscarriages of justice, even those which happened long ago. E. g., In re Stankewitz, 40 Cal. 3d 391, 396, n. 1, 708 P. 2d 1260, 1262, n. 1 (1985) (hearing the merits despite an 18-month delay); In re Moss, 175 Cal. App. 3d, at 921, 221 Cal. Rptr., at 648 (hearing the merits despite a 9-month delay). Nothing about AEDPA suggests that Congress wanted to inject this degree of unpredictability into the 1-year statute of limitations, and it is hard to see how federal courts are to approach this state-law inquiry.

While there may be cases, like this one, where the California courts expressly deny a petition for lack of diligence, the California courts routinely deny petitions filed after lengthy delays without making specific findings of undue delay. Brief for Respondent 40-41, n. 27. Under the Court's rule, federal courts will be required to assess, without clear guidance from state law, whether respondent exercised due diligence. This inquiry will create substantial uncertainty, and resulting federal litigation, over whether a prisoner had filed his habeas petition within a reasonable time. The uncer-


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