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Cite as: 546 U. S. 189 (2006)

203

Stevens, J., concurring in judgment

Cal. Const., Art. VI, § 10 (giving California Supreme Court original jurisdiction over habeas petitions); In re Clark, 5 Cal. 4th 750, 764–765, 855 P. 2d 729, 738 (1993) (noting procedural rules governing habeas petitions are judicially created). It is the existence of this ﬂexible, discretionary timeliness standard in noncapital cases 1 that gave rise to both the issue presented in Saffold and the issue the Court addresses today. In Saffold, we considered whether a habeas petition ﬁled in the California Supreme Court 41⁄2 months after the lower state court made its decision was “pending” (and therefore tolled the federal statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)) during that period. See 536 U. S., at 217. After concluding that a state habeas application is pending during the interval between an adverse lower court decision and the ﬁling in the California Supreme Court, and that California’s virtually unique system made no difference for purposes of tolling AEDPA’s statute of limitations, we were faced with the question whether the state habeas petition in that case had been timely ﬁled. See id., at 221, 223, 225. Rather than answering the question ourselves, we re­ manded the case to the Court of Appeals with instructions that it do so. Id., at 226. We also explained why the an­ swer was not entirely clear. In its order the California Su­ preme Court had stated that it had denied the petition both “on the merits and for lack of diligence.” Id., at 218 (inter­ nal quotation marks omitted). We pointed out that the fact that the State Supreme Court had reached the merits did not preclude the possibility that its alternative basis for deci­ sion—“lack of diligence”—expressed a conclusion that the 1

As California’s Deputy Attorney General pointed out at oral argument, this problem does not arise in capital cases because the California Su­ preme Court has adopted separate rules for such cases. See Tr. of Oral Arg. 63. This is signiﬁcant because, while prisoners on death row often have an incentive to adopt delaying tactics, those serving a sentence of imprisonment presumably want to obtain relief as promptly as possible.