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

209

Stevens, J., concurring in judgment

A general rule could also apply to the most difﬁcult situa­ tion, which arises when the state court denies a petition with no explanation or citation whatsoever. Unlike an order that indicates that a state court has ruled on the merits, a silent order provides no evidence that the state court considered and passed upon the timeliness issue. To resolve such cases, I would adopt a presumption that, if a California court issues an unexplained order denying a petition ﬁled after a delay of less than six months, the court considered that petition to be timely; unexplained orders following a longer delay should be presumed to be decisions on timeliness grounds. Califor­ nia’s use of a 6-month period for determining presumptive timeliness in postconviction capital litigation—the only spe­ ciﬁc time period mentioned in California’s postconviction ju­ risprudence—provides a principled basis for such a double­ barreled presumption. See Cal. Rules of Court Policy Statement 3, std. 1–1.1 (Deering 2005) (“A petition for a writ of habeas corpus [in a capital case] will be presumed to be ﬁled without substantial delay if it is ﬁled within 180 days after the ﬁnal due date for the ﬁling of appellant’s reply brief on the direct appeal . . . ”). Moreover, a 6-month presump­ tion would be fully consistent with our holding in Saffold that the 41⁄2-month delay in that case was not necessarily unreasonable.6 IV The above standards provide me with two independently sufﬁcient reasons for concluding that the California Supreme Court actually decided—not once, but twice—that the peti­ 6

The fact that a 6-month presumption would probably lead to the result that noncapital habeas petitions ﬁled by California prisoners would be pending for somewhat longer periods than those ﬁled in other States is attributable to the peculiar features of California’s postconviction review procedures. It is far wiser to place the responsibility for that conse­ quence on the State, which can readily modify its procedures, than unnec­ essarily to complicate the work of federal judges.