Carey v. Saffold, 536 U.S. 214, 23 (2002)

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Kennedy, J., dissenting

tainty may vex prisoners as well, for they cannot know whether the federal statute of limitations is running while they prepare their state petitions.

The Court's disposition in this very case proves that the timing question is often unanswerable. Even though this is the rare case where the California Supreme Court made a specific finding of "lack of diligence," the Court does not hold respondent's petition untimely. Instead, the Court concludes that the lack of diligence finding is ambiguous, because it might refer, not to respondent's 4-month delay in filing his final writ, but to his 5-year delay in pursuing any collateral relief at all. Ante, at 226. This ambiguity, however, should not benefit respondent. If the California court held that all of respondent's state habeas petitions were years overdue, then they were not "properly filed" at all, and there would be no tolling of the federal limitations period. See Artuz v. Bennett, 531 U. S., at 8. Our consideration whether respondent's petition was "pending" presupposes that it was "properly filed" in the California courts.

The Court takes a different view, but in delivering the case back to the Court of Appeals, it provides no guidance for resolving the ambiguity. As the question has been thoroughly briefed before our Court, it is difficult to see how the lower court would resolve it, if we could not. The Court says that the Court of Appeals might certify a question to the California Supreme Court, but it gives no indication what that court might ask. Presumably, it is not suggesting that in every case where the California Supreme Court issues a summary denial, the Court of Appeals should certify the factbound question of what it really meant to say.

The Court begins in a hypothetical jurisdiction, and it ends without answering the question presented. Both points are telling. By leaving the text of the federal statute behind and calling California's procedures something they are not, the Court has complicated the disposition of the thousands of petitions filed each year in the federal district courts in

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