Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Habeas Hints

This column is intended to provide habeas hints" to prisoners who are considering or handling habeas corpus petitions as their own attorneys (in pro per). The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.


U.S. Supreme Court Term:

As 2005 comes to a close, this column takes its annual look at the U.S. Supreme Court decisions that impacted habeas corpus practice during this past term. At the end of each of the summaries, I've included one or more Habeas Hints" based on the Court's decision.

Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005).
Johnson v. United States, 125 S.Ct. 1571 (2005).
Gonzalez v. Crosby, 125 S.Ct. 2641 (2005).

In this trio of procedural decisions, the Court clarified the circumstances under which the AEDPA statute of limitations would be tolled (suspended from running out) because of the pendency of a properly filed" habeas corpus petition in state court.

In Artuz v. Bennett, 531 U.S. 4 (2000), the Court had held that a state petition which was properly filed" would toll the AEDPA statute of limitations, even if the state court ultimately denied the petition on procedural grounds. However, the Court left open the question as to whether a state court habeas corpus petition that was denied for untimeliness" in a state which allowed certain exceptions for to the state's time limit would qualify as a petition that had been properly filed. In Pace, the Court answered that question in the negative, holding that a petition which the state court denied as untimely" was not properly filed, and therefore the petitioner was not entitled to statutory tolling of the AEDPA during the time it had been pending in the state courts.

In Johnson, the petitioner was given an enhanced federal sentence based on a number of prior convictions that he had suffered under Georgia law. More than one year after his conviction became final, he filed a state habeas corpus petition in which he alleged that the priors which had been used to enhance his sentence were the product of constitutionally invalid guilty pleas. The state court agreed, and entered an order reversing the prior convictions. Based on this favorable ruling in state court, the petitioner filed a federal habeas corpus petition attacking his enhanced sentence. Johnson's federal habeas corpus petition was filed only 3 months after the state court had granted him relief by striking his prior convictions, and the Supreme Court agreed with his contention that there was no way of knowing that his federal sentence was invalid until the state court had ruled in his favor. Nevertheless, the Court found that his federal petition was untimely, because more than a year had elapsed before he filed his state habeas corpus petition.

In Gonzalez, the petitioner filed a Rule 60(b) motion arguing that his previous federal habeas corpus petition had been improperly dismissed under the AEDPA statute of limitations. The prior petition had been denied because the federal court had refused to grant statutory tolling for a state petition that was ultimately dismissed on the basis of a state procedural defaulta decision that was later shown to be incorrect in Artuz v Bennett (see above). The petitioner then filed a Rule 60(b) motion to set aside the previous dismissal. The lower federal courts denied the Rule 60(b) motion primarily on the basis that the petitioner had not sought and obtained permission from the Circuit Court of Appeals to file a successive petition permission which is effectively impossible to obtain. The Supreme Court disagreed, holding that a Rule 60(b) motion which attacks only the procedural basis for the earlier dismissal and does not contain any habeas claims" which directly attack the petitioner's conviction and sentence is not a successive" petition, and therefore does not require circuit court approval to be filed. Nevertheless, the Court upheld the denial of the motion on the basis that the petitioner had waited too long to seek review after his first petition had been dismissed.

Habeas Hints:
 Be aware of the difference between state habeas petitions dismissed on the basis of state procedural defaults (statutory tolling of AEDPA is allowed) vs. petitions which the state court dismisses as untimely" (no statutory tolling allowed).

 Don't risk having good claims denied on the basis of untimeliness. Have your case reviewed for potential habeas claims by a lawyer or competent jailhouse lawyer as soon as possible after your direct appeal is over, and in no event beyond the running of the AEDPA statute of limitations.
 In attempting to deal with a previous dismissal of a federal habeas corpus petition that was dismissed on a technicality rather than on the merits, use a Rule 60(b) motion (which does not require prior circuit court approval) rather than federal habeas corpus petition under
§ 2254 (which requires circuit approval you won't be able to get). But don't delay; bring your Rule 60(b) motion as soon as possible after the case is dismissed.

Rompilla v. Beard, 125 S.Ct. 2456 (2005).

Rompilla was a capital case in which the state sought to impose the death penalty on the basis of several aggravating factors, one of which was that the defendant had a significant history of prior felony convictions indicating the use of violence. Defense counsel went to trial without checking the court file on the priors, and as a result did not become aware of facts relating to the priors which would have been mitigating. The defendant was convicted and sentenced to death and his conviction was affirmed on direct appeal. He then filed a state habeas corpus petition alleging that his trial counsel had been ineffective. The state court denied the petition on the basis that trial counsel had relied on what their client had told them and that the lawyers had consulted several expert witnesses. However, the Supreme Court reversed, finding that, regardless of whatever else they had done, the defense lawyers were deficient in failing to examine the court file on the prior convictions.
 Where your sentence was enhanced on the basis of prior convictions which you think are of questionable validity (e.g., because you were not represented by counsel at the time of your plea to the prior, the transcript does not reflect the necessary explanation of the consequences of the conviction, etc.), obtain your trial counsel's file and see whether the actual court files containing the prior conviction are in there. If not, order the prior conviction file yourself from the court to see if there is anything in it that is helpful to challenging the prior; if so, bring an IAC claim based on Rompilla.

Shepard v. United States, 125 S.Ct. 1254 (2005).

In its 1998 decision in Apprendi, the Court held that a defendant could not be sentenced in excess of the statutory maximum for an offense unless the factors on which the enhanced sentence was based had been submitted to and found by the jury to be true, beyond a reasonable doubt. However, the Apprendi majority carved out an exception for prior convictions, which could be determined by the judge alone. Shepard held that, despite the exception in Apprendi for prior convictions, a sentencing judge could not look to police reports or complaint applications to determine whether a prior guilty plea supported a conviction for burglary as a violent" crime.

 Where your sentence has been enhanced on the basis of a prior violent" felony, but the prior did not actually involve violence (burglary is the most promising example), check the transcript to see how the prosecution established violence as to the prior. If they did so on the basis of anything other than the statutory definition, charging document, or plea transcript, consider attacking the prior as unconstitutional under Shepard.

Rhines v. Weber, 124 S.Ct. 1528 (2005).

In Rhines, the Court held that a federal district court judge has discretion to order stay and abeyance (that is, granting a motion to stay a mixed" petition containing both exhausted and unexhausted claims while the petitioner goes back to state court to exhaust the latter) as an alternative to a dismissal. However, the Court held that stay and abeyance is only to be used in limited circumstances, namely where the petitioner can show: (a) good cause for the failure to exhaust the un-exhausted claims before filing in federal court; and (b) that the un-exhausted claims are potentially meritorious.

 If the Respondent moves to dismiss your petition because it contains both exhausted and unexhausted claims, file with your Opposition to the dismissal motion a motion to stay and abet the federal proceedings, and agree to dismiss the unexhausted claims if the court will grant your request for a federal stay pending exhaustion back in state court. Support your motion for a stay with a declaration showing good cause for the failure to exhaust the claims earlier (e.g., bad lawyering, newly discovered facts, etc.) and briefly setting out the potential merits of your habeas claim(s) to show that they are not frivolous.
Miller-El v. Dretke, 125 S.Ct. 2317 (2005).

Previously the Court had used Miller-El to broaden the basis for issuance of a Certificate of Appealability, holding that a COA should be granted so long as the issue in question was debatable" among reasonable jurists. In re-visiting the case this past term after a COA had been granted but relief on the merits had been denied, the Court held that in deciding whether a prosecutor had violated the Constitution by striking minorities from the jury, the reviewing court should look at the issue of discrimination cumulatively. Among the numerous factors that the Court looked to in throwing out a Texas conviction where the prosecutor had struck 10 of 11 Black panelists were the past practices of the prosecutor's office in question and differences in the way in which the prosecutor questioned minority jurors it had stricken vs. non-minority jurors who had been accepted on the jury.

 If you are seeking a COA, cite Miller-El to remind the court that you only need to show that the issues which you have raised in objecting to the denial of your petition are debatable.

 If you were convicted by an all-White or nearly all-White jury and the prosecutor struck a number of seemingly eligible minority jurors by using peremptory challenges, obtain and review the transcript of the jury voir dire in order to see whether the jurors who were stricken expressed views close to or identical to the views of non-minority jurors who were accepted by the prosecution. If so, consider using that to mount a Batson" challenge along with any cases or other materials reflecting discriminatory jury selection practices by that same prosecutor's office in other cases.

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which explains habeas corpus and the AEDPA. The latest edition (Ed. 4.04.1, revised in May of 2005) is now shipping, and can be purchased for $29.99 (cost is all-inclusive for prisoners; others pay $5 extra for postage and handling). No particular order form is necessary; just send your check or money order to the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115."

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Pace v. DiGugliemo

[49] At the time Pace filed his PCRA petition, no Pennsylvania court had yet applied the PCRA statute of limitations to a petitioner whose conviction had become final prior to the effective date of the Act.*fn14 Nor had the time in which Pace had a right to file a federal habeas petition expired. Under AEDPA, Pace had until April 24, 1997, to file a federal habeas petition. See Carey v. Saffold, 536 U. S. 214, 217 (2002) (1-year limitations period runs from April 24, 1996, for any prisoner whose conviction became final prior to the effective date of the Act). Pace could not, however, obtain relief in a federal court without first exhausting his state remedies. 28 U. S. C. §2254(b)(1)(A). Thus, as far as Pace knew on November 27, 1996, there was no state or federal statute of limitations that precluded him from obtaining relief, but he was required (1) by AEDPA to go to state court and (2) by state law to demonstrate that his claim was not procedurally barred. Unless Pace's PCRA petition tolled the federal statute of limitations, his claims would be time barred in federal court on April 24, 1997.

[50] Pace's petition was docketed and the court appointed counsel. On July 23, 1997, the state trial court denied relief on the merits. Pace appealed. In May 1998, well after Pace's time to file a federal habeas petition had expired, the Commonwealth filed a brief in the state appellate court, which argued for the first time that Pace's petition was untimely under the PCRA's statute of limitations. On December 3, 1998, the state appellate court agreed, explaining that none of Pace's several claims fell within the three statutory exceptions to untimeliness contained in Pa. Cons. Stat. §9545(b) (1998). The state appellate court's conclusion became final on July 29, 1999. It is that determination that provides the basis for this Court's ruling that, as a matter of federal law, the pleading that generated protracted litigation in the state courts was never "properly filed" in the first place.

[51] III.

[52] In Artuz v. Bennett, 531 U. S. 4 (2000), we held that an application for state post-conviction review may be considered "properly filed" within the meaning of 28 U. S. C. §2244(d)(2) even if the application fails to comply with state-law procedural requirements that preclude relief on the merits of the applicant's claims. 531 U. S., at 8. To construe " `properly filed application' to mean `application raising claims that are not mandatorily procedurally barred,' [would elide] the difference between an `application' and a `claim.' Only individual claims, and not the application containing those claims, can be procedurally defaulted under state law ... ." Id., at 9. Furthermore:

[53] "Ignoring this distinction would require judges to engage in verbal gymnastics when an application contains some claims that are procedurally barred and some that are not. Presumably a court would have to say that the application is `properly filed' as to the nonbarred claims, and not `properly filed' as to the rest. The statute, however, ... does not contain the peculiar suggestion that a single application can be both `properly filed' and not `properly filed.' Ordinary English would refer to certain claims as having been properly presented or raised, irrespective of whether the application containing those claims was properly filed." Id., at 10.

[54] The same reasoning applies with equal force to the PCRA time bar, which in effect operates in the same manner as the procedural bar in Artuz. Under the PCRA, the state court must determine not whether the entire application is time barred, but rather whether individual claims are time barred given the various exceptions enumerated in §9545(b). See n. 3, supra. Imagine, for example, a Pennsylvania petitioner who states two claims in what is his second state habeas petition. The first claim asserts a violation of due process rights under Brady v. Maryland, 373 U. S. 83 (1963), in which the petitioner demonstrates that his failure to raise the claim during his first round of state post-conviction review was "the result of interference by government officials with the presentation of the claim" under 42 Pa. Cons. Stat. §9545(b)(1)(i) (1998). The second claim asserts an ineffective-assistance-of-counsel claim based on the same evidence raised in the petitioner's first PCRA application. Under the rule announced by the Court today, a federal court would be forced to conclude that the petitioner's first claim was a "properly filed application for ... collateral review" for AEDPA purposes, while his second claim was improperly filed. This is precisely the type of incoherent result that Artuz sought to avoid.

[55] Incoherent results will not be limited to petitions filed in Pennsylvania. Many States provide exceptions from their post-conviction statutes of limitations that apply to applicants' individual claims. See, e.g., Alaska Stat. §12.72.020 (Lexis 2004) (exempting from the statute of limitations, inter alia, any claims "based on newly discovered evidence"); Fla. Rule Crim. Proc. 3.850 (2005 Supp. Pamphlet) (excepting from the general time bar any claim based on newly discovered evidence, newly recognized rights, or neglect of counsel); Ill. Comp. Stat. Ann., ch. 725, §5/122-1(c) (West Supp. 2004) (allowing for late fillings when petitioner can show that delay was not due to negligence and excepting entirely from the limitations period any "claim of actual innocence"); Iowa Code §822.3 (2003) (exception for any "ground of fact or law that could not have been raised within the applicable time period"); Okla. Stat. Ann., Tit. 22, §§1089(D)(4)-(8) (West Supp. 2005) (requiring the reviewing court to examine each claim and permitting late filing if any included claim could not have previously been presented on account of legal or factual unavailability). For all applications originating in such States, federal district courts must now engage in the very "verbal gymnastics" that Artuz condemned. See 531 U. S., at 10.

[56] The Court's interpretation of "properly filed" in this context conflicts with the meaning we gave the phrase in Artuz. Indeed, the Court's rule suggests that the phrase "properly filed" takes on a different meaning when applied to time bars than it does in the context of procedural bars. This Court has generally declined to adopt rules that would give the same statutory provision different meanings in different contexts, see, e.g., Clark v. Martinez, 543 U. S. ___, ___ (2005) (slip op., at 15), and I would decline to do so here.

[57] It would be much wiser simply to apply Artuz's rule to state time bars that, like the PCRA, operate like a procedural bar. In this case, the PCRA time bar's enumerated exceptions, which require state courts to review the claims elucidated in post-conviction petitions and to determine whether particular claims trigger the applicability of the exceptions, plainly function like a procedural bar. Thus, I would hold that Pace's petition was "properly filed" -- it was "delivered to, and accepted by, the appropriate court officer for placement into the official record" and complied with the "applicable laws and rules governing filings." Artuz, 531 U. S., at 8.

[58] Application of the Artuz rule in this context is clearly consonant with the statutory text.*fn15 A time bar is nothing more than a species of the larger category of procedural bars that may preclude consideration of the merits of the state petition, and may raise questions that are equally difficult to decide. Indeed, under Federal Rule of Civil Procedure 8, the contention that a claim is untimely is an affirmative defense that can be waived. Because most state laws respecting untimely filings of post-conviction petitions function in a manner identical to the procedural bar at issue in Artuz, there is no justification for giving special treatment to any state rule based on untimeliness.

[59] IV.

[60] A rule treating statutes of limitations equivalently to procedural bars would accomplish the statutory purposes Congress sought to vindicate in AEDPA. Congress fashioned 28 U. S. C. §2244(d)(2) in order to provide a strong "incentive for individuals to seek relief from the state courts before filing federal habeas petitions." Duncan v. Walker, 533 U. S. 167, 180 (2001). As we explained in Duncan:

[61] "The tolling provision of §2244(d)(2) balances the interests served by the exhaustion requirement and the limitation period. Section 2244(d)(2) promotes the exhaustion of state remedies by protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued. At the same time, the provision limits the harm to the interest in finality by according tolling effect only to `properly filed application[s] ... .' " Id., at 179-180.

[62] In construing the words "properly filed," therefore, we must consider not only the "potential for delay in the adjudication of federal law claims," but also the need to avoid overburdening district courts by encouraging "the very piecemeal litigation that the exhaustion requirement is designed to reduce." Id., at 180. AEDPA, after all, was designed to "streamline and simplify" the federal habeas system in order to reduce the "interminable delays" and "shameful overloading" that had resulted from "various aspects of this Court's habeas corpus jurisprudence." Hohn v. United States, 524 U. S. 236, 264-265 (Scalia, J., dissenting). The Court's rule is unfaithful to these legislative goals.

[63] The Court's principal justification for its rule is the fear that allowing statutory tolling in this context would allow prisoners to extend the federal statute of limitations indefinitely by repeatedly filing meritless state petitions. See ante, at 5 ("[A] state prisoner could toll the statute of limitations at will simply by filing untimely state post-conviction petitions"). That fear is misguided for two reasons. First, it ignores a basic fact that we have recognized repeatedly -- a "prisoner's principal interest, of course, is in obtaining speedy federal relief on his claims." Rose v. Lundy, 455 U. S. 509, 520 (1982). Indeed, it is an understatement to say that the vast majority of federal prisoners "have no incentive to delay adjudication of their claims," Duncan, 533 U. S., at 191 (Breyer, J., dissenting). Most prisoners have precisely the opposite incentive because delaying the initiation of federal post-conviction relief will almost assuredly maximize their periods of incarceration.

[64] Second, the Court's concern is premised on the incorrect assumption that the phrase "properly filed" has no meaningful content unless all untimely petitions are by definition improper. The reason that assumption is wrong is because any claim that a state application has tolled the limitations period will always depend on the district court's finding that the petition was "properly filed." In my view, it would be entirely appropriate, and consistent with the text and purposes of AEDPA, to define "properly filed" as excluding any filings deemed by the district court to be repetitious or abusive. If an application for post-conviction review is not filed in good faith -- filed, in other words, explicitly to prolong the federal statute of limitations -- it would be improper under AEDPA, and statutory tolling would not be appropriate. Federal and state courts have considerable experience identifying and preventing the kind of dilatory pleadings that concern the Court today. See, e.g., McCleskey v. Zant, 499 U. S. 467, 479-489 (1991). There is no reason that courts could not engage in similar analyses to prevent state prisoners from prolonging indefinitely the AEDPA statute of limitations.*fn16

[65] Unfortunately, the most likely consequence of the Court's new rule will be to increase, not reduce, delays in the federal system. The inevitable result of today's decision will be a flood of protective filings in the federal district courts. As the history of this case demonstrates, litigants, especially those proceeding pro se, cannot predict accurately whether a state court will find their application timely filed. Because a state court's timeliness ruling cannot be predicted with certainty, prisoners who would otherwise run the risk of having the federal statute of limitations expire while they are exhausting their state remedies will have no choice but to file premature federal petitions accompanied by a request to stay federal proceedings pending the exhaustion of their state remedies. Cf. Rhines v. Weber, ante, at 8. The Court admits that this type of protective filing will result from its holding. See ante, at 8. I fail to see any merit in a rule that knowingly and unnecessarily "add[s] to the burdens on the district courts in a way that simple tolling ... would not." Duncan, 533 U. S., at 192 (Breyer, J., dissenting).

[66] Beyond increasing the burdens faced by district courts, the Court's tacit encouragement of countless new protective filings will diminish the "statutory incentives to proceed first in state court" and thereby "increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce." Id., at 180. Congress enacted §2254(d)(2), along with §2254(b), to "encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible." Id., at 181. The Court's rule turns that statutory goal on its head -- in essence, encouraging all petitioners who have doubts regarding the timeliness of their state petitions to file simultaneously for relief in federal and state court. Artuz appropriately prevented such a result with respect to procedural bars. Because I see no reason to depart from that sound approach, I would hold that Pace's application was "properly filed" under AEDPA. I respectfully dissent.

Opinion Footnotes

[67] *fn1 The amended statute states that "[a]ny" post-conviction petition, "including a second or subsequent petition, shall be filed within one year" from the date the petitioner's conviction becomes final. 42 Pa. Cons. Stat. §9545(b)(1) (1998). However, three exceptions are provided: if governmental interference prevented filing; if a new constitutional rule is made retroactive; or if new facts arise that could not have been discovered through due diligence. §§9545(b)(1)(i)-(iii). A statutory note provides that the 1995 amendments "shall apply to petitions filed after [January 16, 1996]; however, a petitioner whose judgment has become final on or before [January 16, 1996] shall be deemed to have filed a timely petition . . . if the petitioner's first petition is filed within one year of [January 16, 1996]." Statutory Note on §9545(b).

[68] *fn2 The District Court noted that, under Third Circuit precedent, "petitioners whose convictions became final before the enactment of AEDPA's statute of limitations on April 24, 1996 have until one year from the enactment of the habeas statute of limitations to file their petitions." App. 453, 503. Without tolling, therefore, petitioner's federal habeas petition was filed well after the April 1997 deadline.

[69] *fn3 Compare, e.g., Dictado v. Ducharme, 244 F. 3d 724, 726-728 (CA9 2001), with Merritt v. Blaine, 326 F. 3d 157, 162-168 (CA3 2003).

[70] *fn4 With regard to jurisdiction, see, e.g., Commonwealth v. Judge, 377 Pa. 387-389, 797 A. 2d 250, 257 (2002) (Pennsylvania court had jurisdiction over PCRA petition, despite the fact the petitioner was not in Pennsylvania custody). With regard to filing fees, see, e.g., Pa. Rule Crim. Proc. 904(F) (2005) ("When a defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis").

[71] *fn5 Perhaps not unintentionally, petitioner fails to provide us any guidance on exactly which Pennsylvania Rules are subject to a clerk's striking for noncompliance. We doubt there are many such rules, both because few truly mechanical rules exist and because the role of the clerk in refusing petitions in most courts is quite limited. See, e.g., Fed. Rule Civ. Proc. 5(e) ("The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices"); 28 U. S. C. §2254 Rule 3(b), available at WESTLAW, United States Code Annotated database (Apr. 20, 2005) ("The clerk must file the petition and enter it on the docket"); see also Advisory Committee Note on Habeas Corpus Rule 3(b), 28 U. S. C. p. ___ ("Rule 3(b) requires the clerk to file a petition, even though it may otherwise fail to comply with Rule 2. This rule . . . is not limited to those instances where the petition is defective only in form; the clerk would also be required, for example, to file the petition even though it lacked the requisite filing fee or an in forma pauperis form"). Indeed, not even filing in the right court would be a "condition to filing" under petitioner's limited theory. See 42 Pa. Cons. Stat. §5103(a) (2004) (instructing that, when a petition is filed in the wrong court, it is not to be stricken but transferred to the proper court). Under this theory, "filing" conditions may be an empty set.

[72] *fn6 Similarly, §2244(d)(1) provides that a "1-year period of limitation shall apply to an application for a writ of habeas corpus." (Emphasis added.) The subsection then provides one means of calculating the limitation with regard to the "application" as a whole, §2244(d)(1)(A) (date of final judgment), but three others that require claim-by-claim consideration, §2244(d)(1)(B) (governmental interference); §2244(d)(1)(C) (new right made retroactive); §2244(d)(1)(D) (new factual predicate).

[73] *fn7 Compare, e.g., Pa. Rule Crim. Proc. 901(A) (2005) (titled "Initiation of Post-Conviction Collateral Proceedings" and listing compliance with the time limit as one mandatory condition); 42 Pa. Cons. Stat. §9545(b) (2002) (titled "Jurisdiction and proceedings" and listing the time limit); Commonwealth v. Fahy, 558 Pa. 313, 328, 737 A. 2d 214, 222 (1999) (describing the time limit as "jurisdictional"); 2 Ala. Rule Crim. Proc. 32.2(c) (2004-2005) (stating that a court "shall not entertain" a time-barred petition), with 42 Pa. Cons. Stat. §9543(a) (2002) (titled "Eligibility for relief" and listing procedural bars, like those at issue in Artuz); 2 Ala. Rule Crim. Proc. 32.2(a) (2004-2005) (stating that a "petitioner will not be given relief" if certain procedural bars, like those at issue in Artuz, are present).

[74] *fn8 We have never squarely addressed the question whether equitable tolling is applicable to AEDPA's statute of limitations. Cf. Pliler v. Ford, 542 U. S. 225 (2004). Because respondent assumes that equitable tolling applies and because petitioner is not entitled to equitable tolling under any standard, we assume without deciding its application for purposes of this case.

[75] *fn9 Petitioner's PCRA petition did cite allegedly "new" evidence to support his claims that he received ineffective assistance of counsel and that his plea was invalid because he did not understand his life sentence was without the possibility of parole. However, this new evidence was not new at all: It consisted of affidavits from petitioner's parents and brother regarding a meeting they attended with petitioner's counsel and petitioner in 1985 or 1986. App. 195-199.

[76] *fn10 As noted previously, the PCRA time limit only came into effect in January 1996, see n. 1, supra, and petitioner's federal habeas petition was due in April 1997, see n. 2, supra.

[77] *fn11 Because I would hold that Pace was entitled to statutory tolling, I need not answer the question whether the Court of Appeals erred by reversing the District Court's decision to grant Pace equitable tolling.

[78] *fn12 Pace's conviction became final in 1986, long before the Pennsylvania Legislature adopted the PCRA's current statute of limitations. Pace's original petition for post-conviction relief was filed under the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pa. Cons. Stat. §9541 et seq. (1988) (amended and renamed by Act No. 1988-47, §§3, 6, 1988 Pa. Laws pp. 337-342), which did not include a statute of limitations. The Pennsylvania Supreme Court denied Pace's request for review on September 3, 1992. The PCRA time bar did not become effective until January 16, 1996. See Act No. 1995-32, §9579, 1995 Pa. Laws p. 1126 (Spec. Sess. 1).

[79] *fn13 For instance, Pace argued that his failure to raise the claims below should be excused because of ineffective assistance of counsel. See App. 191-194, 220-226. Pace also argued that a failure to consider the new claim would constitute a "miscarriage of justice," id., at 192, 217-219, and that his new claims challenged the legality of his sentence, id., at 189, 192. To support each of these arguments, Pace cited state cases demonstrating the existence of judicial exceptions to procedural default.

[80] *fn14 That time bar provides that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim . . . ; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively." 42 Pa. Cons. Stat. §9545(b) (1998) (emphasis added).

[81] *fn15 The majority claims that this interpretation of "properly filed" is inconsistent with the text of §2244(d)(2). See ante, at 7-8. But the rule I favor relies on the same interpretation, of the same statutory text, that we adopted in Artuz. See 531 U. S., at 10. Unless the Court means implicitly to overrule Artuz, its rule compels the conclusion that the singular phrase "properly filed" takes on different meanings in different contexts. That is the same interpretive exercise we unequivocally rejected in Clark v. Martinez. See 543 U. S. ___, ___ (2005) (slip op., at 15).

[82] *fn16 Such an inquiry is consistent with Artuz, which distinguished between properly filed applications and individual claims contained within those applications. An application filed intentionally to prolong the federal statute of limitations would be improper in its entirety. Indeed, it is difficult to imagine how one particular claim in an application could be improperly motivated to delay federal proceedings, while another claim was "properly filed" under AEDPA.