Rhines v. Weber - Oral Argument

Argument of Roberto A. Lange

Justice Stevens: We'll now... we'll now hear argument in Rhines against Weber.

Mr. Lange.

You may proceed, Mr. Lange.

Mr. Lange: Justice Stevens, and may it please the Court:

Stay and abeyance is the proper way to administer the total exhaustion rule under the unique facts of this case.

Several Justices of this Court already have endorsed stay and abeyance, and seven of the eight circuit courts of appeals that have considered the issue have permitted stay and abeyance under similar circumstances.

Section 2254 and the decisions of this Court in Granberry v. Greer and Strickland v. Washington make clear that exhaustion is not a jurisdictional requirement.

District courts have the inherent authority and the broad discretion to issue stays in cases within their jurisdiction.

Justice Scalia: I think that's unquestionable.

The... the issue really is whether it's an abuse of that discretion to... to grant a stay and abeyance when the... the petitioner comes before the court for habeas without having exhausted in State court.

I mean, that's the question.

I think everybody will stipulate that there's power to... to stay proceedings, but is it an abuse of discretion to do so in these circumstances given the statute that... that wants a 1-year, prompt resort to the Federal courts.

Mr. Lange: Justice Scalia, I agree with your framing of the issue.

Justice Scalia: Okay.

Mr. Lange: And I also believe that a stay under these circumstances is appropriate under the statutes, section 2254 and 2244, and is consistent with those statutes.

There is nothing, as Justice Souter noted in his concurrence in Duncan v. Walker, that prohibits the... the granting of a stay under circumstances such as these.

Indeed--

Justice Kennedy: Well, there's no... there's no abuse of discretion here.

Why?

Because we have an interest in having all of the claims exhausted?

If... if it's no more... if it's as broad as that, then there's no AEDPA statute of limitations.

Mr. Lange: --No, Your Honor.

I believe there is no abuse of the discretion here because if a stay had not--

Justice O'Connor: Well, why shouldn't... why shouldn't the petitioner for habeas have to first go to the State court and exhaust the State court claims?

Here that wasn't done.

The petitioner eventually ended up in Federal court with a laundry list of 30-some unexhausted State claims, for goodness sakes.

Why shouldn't those have been presented in the first instance to the State court?

Mr. Lange: --Well, in an ideal world, they would be presented in the first instance, but we're dealing with a... a world where 93 percent of petitioners are proceeding pro se.

Your Honor, stay and abeyance does force a petitioner to present unexhausted claims in State court--

Justice Kennedy: At the price of suspending the 1-year statute of limitations that Congress thought was central to AEDPA.

Mr. Lange: --No, Your Honor.

I do not see this as a suspension of the statute of limitations.

Mr. Rhines met the AEDPA statute of limitations.

He filed when only, by the State's own admission, 8 to 14 days had run on his 1-year AEDPA statute of limitations.

Justice Scalia: Well, but it's a free ride if you say... so long as you get in within the 1-year period, the court can then give you another 3 years or as long as the court thinks is reasonable for you to go back and... and do what you were supposed to do before you arrived.

I mean, that seems to me is a frustration of the 1-year statute of limitations.

Mr. Lange: I disagree that that is a free ride, and I do not see that as a frustration of the 1-year statute of limitations when a petitioner has met the 1-year statute of limitations.

Your Honor--

Justice O'Connor: But the petitioner--

Justice Souter: No, but the point--

Justice O'Connor: --didn't go to the State court with this enormous laundry list of unexhausted claims.

I mean, what do we do to encourage the procedure to be followed?

Congress did want all this compressed and thought people should apply first to State court and, when those are exhausted, then within the time limit apply to Federal court.

But this... this scheme does something else, it seems to me.

Mr. Lange: --Your Honor, Congress wanted to compress certainly the time between exhaustion of the State remedies and the time when the petitioner came to Federal court.

However, Congress gave unlimited tolling while there is any proceeding going in... in State court.

I... I see this stay and abeyance as a procedure that gets applied somewhat infrequently and at the discretion of a judge to... a district court judge to apply or not apply when it's appropriate to--

Justice Ginsburg: Is there a difference... would you say there's a difference between a case where the petitioner comes into Federal court in the first instance with this laundry list or as, if I recall correctly, this case, goes first to the State court and then, when it's dismissed from the State court, comes to Federal court with the same basic list which has been exhausted, plus others which have not?

Would you distinguish the case on the propriety of stay and abeyance of passing up the State court, going to Federal court first, going to State court with your pro se petition raising a bunch of claims but not all of them, and then coming to Federal court?

Mr. Lange: --I think it truly depends on the circumstances which of those two hypotheticals present a more compelling case for stay and abeyance.

In Mr. Rhines situation, he did go to State court first and exhausted the vast majority of the 35 separate claims that he has raised.

Justice Ginsburg: How many... how many were not exhausted of that... that laundry list?

Mr. Lange: The court... or the State challenged 12 of the claims as unexhausted.

The district court found eight of those claims to be unexhausted, Your Honor, and made that finding after Mr. Rhines' 1-year AEDPA period had run.

The finding... Mr. Rhines had filed in February of 2000 pro se.

The district court's conclusion that he had a mixed petition and that there were eight unexhausted claims was made in July of 2002.

Justice Ginsburg: 16 months.

Mr. Lange: It's actually a little bit... it's longer than 16 months, Your Honor.

The district court referred to 16 months, but it's almost 2 and a half years, from February of 2000 to July of 2002, Your Honor.

Justice Kennedy: One of the problems is that the statute encourages prompt resolution in... in the Federal system as well, and under a stay and abey procedure, you could have a district judge who lets the matter sit for 9-10 months and all of a sudden issues a stay and abey.

How are we going to control that?

Mr. Lange: Your Honor, I think the alternative that the State proposes presents an even more troubling illustration.

A district court, of course, can proceed at its own... at its own rate, grant a stay, grant the terms of the stay as it sees fit, and I believe that takes care of the consideration that... that Your Honor's question indicated, Justice Kennedy.

The suggestion of the State sets up a situation where, according to the State, they want Rhines to purge his... his claim... his petition of the unexhausted claims and proceed in State court at the same time, which is unseemly to have Mr. Rhines proceeding on 27 exhausted claims in Federal court at the same time that he is proceeding on 8 claims in State court.

Now, South Dakota is a little bit unique.

It... it allows a second State habeas action.

There's no time bar to a second State habeas action.

In fact, the South Dakota legislature has made a policy decision that indigent prisoners are entitled to representation of counsel in their first habeas.

Justice Kennedy: Well, so then he's protected in the State system, and if he needs Federal review, he can come here on direct.

Mr. Lange: Your Honor, the problem is the eight claims that he is now exhausting in State court, if the State's approach is taken, he forever sacrifices, loses the right to Federal review of those eight claims.

Justice Kennedy: No.

He can come to... here... this Court on direct review.

Mr. Lange: Excuse me.

Under direct review?

Is--

Justice Kennedy: He can come to this Court on certiorari after the State decision in the second... in the second habeas.

Mr. Lange: --Your Honor, as a matter of--

Justice Scalia: It's fair for you to say he loses his right to Federal review--

Mr. Lange: --Right.

Your--

Justice Scalia: --because we wouldn't necessarily take that case, whereas you say he'd have a right to go into Federal... Federal habeas.

So--

Mr. Lange: --Thank you for throwing me the life preserver.

I--

[Laughter]

I understand this Court grants fewer than 1 percent of the cases, so as a practical matter, for there to be an independent review, as contemplated by section 2254(a), it does require a district court's involvement.

As a practical matter, this Court on... on cert can't be expected to... to conduct that review.

2254(a), which is the statute that grants jurisdiction, does indicate that a Federal court shall entertain causes of this action.

Now, 2254(b) does contain the exhaustion requirement in (b)(1) and makes clear in (b)(2) and (b)(3) that it is not jurisdictional.

The... the irony--

Justice O'Connor: Would we have to... would we have to reverse in part Rose against Lundy to go with your view?

Mr. Lange: --I don't believe so anymore than you would have to reverse in part Rose v. Lundy to go with the State's view.

And let me explain.

The approach of stay and abeyance is more consistent with the principles of Rose v. Lundy than the... than the State's position.

In Rose, this Court was concerned about comity and federalism.

It... it serves the interests of comity and federalism for a Federal court to suspend consideration of a Federal habeas case while a petitioner has a remedy and is actually pursuing it in State court.

The petitioner may be granted the remedy in State court, which in turn would render the Federal petition moot altogether.

There could be, between the competing State and Federal cases, competition for the transcript or even the exhibits.

Rose v. Lundy also contemplated a process that would not unreasonably impair the petitioner's right and would give the petitioner the choice of either purging the unexhausted claims or going back to State court, exhausting the claims, and then coming back to Federal court with one fully exhausted--

Justice O'Connor: Well, that was at a time before the AEDPA enactment that tried to put limits, time limits, on these things.

Mr. Lange: --The only--

Justice O'Connor: That's what we run into here, is a total frustration almost of Congress' time limiting.

Mr. Lange: --Your Honor, I... I would disagree that this is a total frustration of Congress' time limiting... time limiting.

Again, Congress granted unlimited tolling while a petitioner is pursuing remedies in State court.

Congress was not attempting to frustrate or impede the petitioner's right to seek State court relief or--

Justice O'Connor: Yes, but Congress, I think under the scheme, envisioned having someone make all the State claims the first time around, gather them up and go to State court, and let them take as long as they like... no statute will run until that's complete... and then go to the Federal court.

And this does an end run around that approach.

Mr. Lange: --Your Honor, I don't believe this does an end run because this is different than... than tolling.

First of all, in tolling it's automatic under a statute, and stay and abeyance is always discretionary with the court.

The court can grant or deny the stay and abeyance order, alter it, revoke it, or in this case, put time limits on the petitioner's right to go back and... and forth.

Also, Mr. Rhines has complied with the AEDPA period.

He did file.

The unusual situation that could result here is if you assume a prisoner B who's in Rhines' same position and files at the same time, when only approximately 9 days have elapsed on his AEDPA period.

Petitioner B, let's assume, files three claims: one exhausted, one unexhausted, and one there's a dispute over whether it's exhausted or not.

Because petitioner B had a short trial perhaps or draws a different judge in the District of South Dakota, the judge can rule on that case perhaps within 100 days.

It gives petitioner B, under my scenario, 256 days to go to State court, exhaust his claims, and then come back into Federal court with one fully exhausted petition.

Rhines would be in the position of prisoner B in my scenario but for the fact that his claims are... are much more complicated.

He is serving a... a sentence of death.

He did have a long trial.

And under that situation, it's simply unfair to someone in Rhines' place to have his right to a review of the eight unexhausted claims cut short because he had a complicated case or the district court was slow in getting to a decision.

Justice Scalia: --That... that happens often with time limits.

I mean, it depends on when the court finishes its job and so forth.

What do you do about... about our opinion in... in Duncan v. Walker where we refused to toll the limitation period during the pendency of a... of the Federal proceeding and... and said, in... in justification of that holding, by tolling the limitation period for the pursuit of State remedies and not during the pendency of applications for Federal review, 2244 provides a powerful incentive for litigants to exhaust all available State remedies before proceeding in the lower Federal courts?

You are now urging us to eliminate that incentive entirely.

Mr. Lange: No, Your Honor.

Justice Scalia: Why not?

Mr. Lange: I believe there's always a very powerful incentive to prisoners to exhaust in full because if they file a mixed petition, they're not going to have relief.

Justice Scalia: Sometimes--

Mr. Lange: (b)(1) says it shall not be granted.

Justice Scalia: --Well, you said... you said in your brief that... that it's always in the... with the possible exception of capital cases, it's always in the interest of a habeas applicant to get... get it decided as soon as possible.

That's not really true.

Sometimes it's... it's in his interest to delay it as much as possible.

Witnesses will die.

People will move away.

All sorts of... there are all sorts of reasons why he... he might want to delay the process.

Mr. Lange: I think those illustrations are... are the... very much the exception rather than the rule, as this Court recognized in--

Justice Souter: --Well, what about the exceptional case?

I mean, how do we avoid the exceptional case?

Mr. Lange: --Well, I think that's then the district court's task that has more familiarity with the particular case.

Justice Souter: Which can do what?

Mr. Lange: The district court can refuse to issue a stay and abeyance order.

It can put tight deadlines on a stay and abeyance order.

The district court can revoke a stay and abeyance order.

It can alter it if there is delay.

I believe that is a decision that should be left to the court that's closest to the facts, the district court.

Justice Stevens: Do you think the procedure should be any different between capital cases and noncapital cases?

We're basically talking about what would be an abuse of discretion, as you indicated at the outset.

Do you think the same rule should apply to both, or do you think there might be... because there is a greater incentive to delay in the capital case than there is in the noncapital case.

Mr. Lange: You're right, Justice Stevens.

I... it's difficult to develop a rule that distinguishes between the two classes, but I do believe that's in the realm of the discretion of the district court.

The district court can set very tight deadlines on a petitioner returning to State court to exhaust remaining remedies like the Court here set a deadline of 60 days, and in the circuit courts, more commonly the deadline is 30 days to go back to State court and then 30 days to return once the State proceeding is... is completed.

Justice Scalia: But you... you don't really think we can hold that line, giving less favorable treatment to somebody who's... who's trying to argue against a capital penalty, less favorable treatment to him than somebody who's... who just wants to avoid 10 years in jail?

That's just not going to work.

Mr. Lange: I'm not advocating less favorable treatment or more favorable treatment for that matter.

I believe the rule has to be consistent between the two.

Justice Ginsburg: Could you just replay the order of the proceedings?

The first petition is to the State court.

Was the defendant in that first State habeas represented by counsel?

Mr. Lange: Yes, he was, Your Honor.

Justice Ginsburg: So he's been represented by counsel throughout.

Mr. Lange: Well, he filed his Federal habeas petition pro se.

The counsel was appointed shortly afterwards, yes, Your Honor.

Justice Ginsburg: But the... the State application that preceded that... he was represented there.

Mr. Lange: Yes, Your Honor.

Justice Ginsburg: And then he lost his representation when he came to the Federal court?

Mr. Lange: Justice Ginsburg, a different lawyer gets appointed in the Federal court system than represented him in the... in the State court system.

Justice Scalia: How... how general is... is this problem?

And... and to what extent is it tied to the fact that you can bring a second habeas in South Dakota?

I mean, in... in most States, if this had happened, I presume, when you went back to the State court, the State court would say, you know, you didn't... you didn't put in these claims the last time around and they're procedurally barred.

Isn't that what would happen in... in most other States?

Mr. Lange: I think that's an excellent point and on footnotes 9 and 10 of the yellow brief, there is a litany of the State procedural rules, and many States would bar a second habeas or would put a strict time limit that the petitioner could not meet.

South Dakota is different in that regard.

Justice Scalia: Yes.

Mr. Lange: South Dakota allows a second habeas and, indeed, allows a petitioner in a second habeas to show cause for a default by proving that he received ineffective assistance of habeas counsel, which is unique among the States.

Yes, many States that don't allow a second remedy would... would not... we would not be in this situation that we are here.

However, South Dakota does.

And in fairness to Mr. Rhines, it makes sense to stay the Federal petition and to allow him to exhaust his State court remedies on satisfaction of Rose and to come back with a fully exhausted claim.

Justice Scalia: Unless what would happen in these other States as the... is that the court would grant the... the stay of proceedings in order to let him go back to the State court and be told after however long it takes that... that his... his claims are now procedurally barred.

Do you think the Federal court would simply make its own determination that the claims would be rejected by the State court and therefore it would not stay?

I don't know.

Mr. Lange: I... I believe that would... could be and... and should be a factor in a district court's consideration of whether to grant stay and abeyance, Your Honor.

The State has expressed concerns about delay.

There are four reasons why those concerns are overstated.

First, in the 3 and a half years since Duncan v. Walker was decided, there have been cases in circuit courts of appeals that have approved of the stay and abeyance procedure.

None of those cases evidence that it is being misused or is causing undue delay.

Second, the terms of the stay themselves can restrict a petitioner's delay, as I've already recounted the... the district court did here.

Third, this Court in Slack v. McDaniel addressed very similar arguments to what the State is making now about delay through a second habeas filing.

And this... this Court noted that the Rules of Civil Procedure vest courts with flexibility to prevent vexatious or delayed litigation and that there are other reasons why those concerns expressed in Slack v. McDaniel were... were overwrought.

Fourth and finally, on the prospect of delay, as already mentioned in answer to one of Justice Scalia's questions, the vast majority of petitioners are not under a capital sentence.

It is not hyperbole to say that 99.4 percent of Federal section 2254 habeas petitioners are not serving... are not under a capital penalty.

Those are statistics from the year 2000 from the Department of Justice.

And those, I think with the extremely rare exception, are people who believe rightly or wrongly that they're in prison because their constitutional rights have been violated and would not favor delay under any circumstance.

So the delay concern that the State raises is... is overwrought.

Unless there are other questions, I'd reserve my remaining time for rebuttal.

Justice Stevens: Thank you, Mr. Lang.

General Long, we'll hear from you, please.

Argument of Lawrence E. Long

Mr. Long: Justice Stevens, and may it please the Court:

Congress... excuse me.

Congress carefully crafted a scheme designed to encourage State prisoners first to exhaust all of their State post-conviction remedies and then to file their habeas corpus petitions as soon as possible.

The congressional design includes three mutually dependent statutes, including a 1-year statute of limitations, a tolling provision, and a total exhaustion requirement, the combined effect of which is supposed to reduce delay, serve the principles of comity, finality, and federalism.

However, stay and abeyance erodes each side of this triangular statutory design.

Stay and abeyance allows tolling in Federal court when Duncan said there should be none.

It extends the statute of limitations beyond 1 year, and it ignores the total exhaustion requirement of 2254(b).

The result is that State prisoners, especially capital prisoners, are encouraged to file mixed petitions and rewarded with delay if they do so.

Justice Souter: What... what is your answer to... to your... your brother's answer on this, and... and that is, that the... the existence of stay and abey as a possibility is not a right to stay and abey?

And... and if a district judges find that a... there is reason to believe that the defendant is gaming the system, because he's a capital defendant and wants to delay or wants delay for any other reason, there's... there's no requirement that... that there be a stay and... and abeyance order.

And why... why doesn't that take care of what I... I think is a very legitimate issue that you raise?

Why isn't that a... a sufficient answer to it?

Mr. Long: I think that... I think that the... the answer is that Congress designed the system to resolve all those issues in State court first.

I think one of the things that needs to be kept in mind is that an unexhausted claim is, by its very nature and by definition, a claim where there's an available remedy in State court.

Justice Souter: Oh, again, there's no question about that.

And... and in a perfect... sort of in a perfect system, I think your objection would be unanswerable.

The trouble with the system we've got is... is the trouble that... that is... is undisputed here, and that is, that most of these petitions, the overwhelming number of them, are going to be pro se petitions.

Exhaustion can... can be tricky.

The... the statute of limitations is... is going to run and... and an individual can end up in the... in the situation that this one had.

What... what he's asking for, in effect, is how do we tinker with the system, in effect, to prevent its being a... a very unfair burden on people who don't have the sophistication to help themselves.

Mr. Long: I don't think the system needs to be tinkered with, Your Honor.

Justice Souter: Well, I... I know but there's... what... what is your answer on the merits to the fact that most of the people who are going to ask for stay and abey are... are going to be pro ses, or at least have gotten into the mess that they're in as a result of pro se representation, and... and that... that exhaustion in close cases can be a very... very tricky issue?

What... what's your response to that?

Mr. Long: My response is in two parts.

First of all, Your Honor, I agree with you that exhaustion can be a tricky issue, but it's... it's the most tricky in the question about whether or not the question has been fairly presented.

The less tricky portion of the question is whether or not the claim is unexhausted, having been... that means there's an available remedy in State court.

The easy way to sort that out is just to file your claim in State court.

If there is in fact an available remedy, then you get tolling, and that solves the problem.

I--

Justice Scalia: I'm not sure... I'm not sure it's... it's true, are you, that... that the reason people get into these situations is because they were pro se.

That wasn't the case here.

I... I think they probably get into this situation very often because they have a better or at least a different lawyer at the Federal habeas stage than they had at the State habeas stage, and this new lawyer sees additional claims that... that he wants to make.

Isn't... isn't that exactly what happened here?

Mr. Long: --That's... I... I suspect that's the typical case in... in capital cases.

Mr. Rhines is currently--

Justice Breyer: It's typical.

I mean, what I have in the statistics is that about 36 percent of all the habeases are dismissed for failure to exhaust, and 93 percent of all of the habeas petitioners are pro se.

Now, the conclusions I draw for that is it's probably these pro se people... I mean, 93 percent are pro se... that get the procedural dismissals, and certainly a third or so, if we agree with you, of all of the habeas petitions filed in... in Federal court are going to be finished, terminated.

The door is closed because it takes a Federal court about 9 months on average to process a habeas.

Now, you just take that and you say, we've closed the door of the Federal court to a third of all the habeas petitioners.

And if I had thought that Congress wanted that, then I might say fine.

But I thought that Duncan... and I know I was on the other side of the case, but I felt the majority had a pretty good point on the language, to tell you the truth.

But what I didn't think they had such a... I mean, I couldn't find much of a congressional purpose one way or the other there.

I thought the purpose of the statute of limitations is really to get people to file their petitions.

Once they file them, they have a year but it's tolled.

You know, I mean, you understand the thing.

I... I'm really looking for you to tell me some tremendously strong congressional purpose that's served so strong that you want to knock a third of the petitioners out of Federal court forever.

Mr. Long: --I think it's less complicated than that, Your Honor.

I think that it--

Justice Breyer: That's pretty simple.

Mr. Long: --I--

Justice Breyer: The door is closed forever.

I mean--

Mr. Long: --I disagree.

I disagree with you, Justice Breyer.

I... I think that even for a pro se petitioner, I do not think it is more difficult for him to find the door of the State courthouse than it is to find the door of the Federal courthouse.

And the key, I think, to your argument is that claims are unexhausted by definition if there's an available State court remedy.

Therefore, by definition, they ought to be going to the State courthouse rather than the Federal courthouse.

Justice Ginsburg: The--

Justice Breyer: --They seem to have made a mistake here quite a lot.

Why do these statistics come out the way they do?

I mean, it is just as easy.

Mr. Long: I... I can't--

Justice Breyer: I agree with you.

Why... why aren't they filing... why... why are they all filing so many, 36 percent filing in the wrong court?

Why is that?

Justice Scalia: You know, it... it could be, I suppose, that these people have nothing else to do sitting around in the jailhouse, and... and having written their State petition, they sit around for a few more months and they say, you know, there are a few more claims I could make.

I think that's... it's as simple as that.

And... and what the statute is designed to do, I... I think you're telling us, is to say, look it, be careful.

Make all your claims in the State court the first time.

That doesn't seem to me to be too much to demand.

Mr. Long: --Justice Scalia, I think that's exactly what the statute... the statutes... the three read together and enforced together--

Justice Ginsburg: --But they're all--

Justice Kennedy: I take it... I take it that one of the answers to the observation that the Federal court is closed to a third of the claims is that that's not true with respect to the exhausted claims.

The... the petition can simply be purged as to unexhausted claims and as to the exhausted claims, the courthouse door remains open.

Mr. Long: --Well, I agree with that.

The... let's... let's deal with the facts in this case.

Justice Ginsburg: --May I ask you--

Mr. Long: Please.

Justice Ginsburg: --with respect to this case?

I thought this case was such a good illustration of the problem.

If claims came into the Federal court neatly labeled, exhausted, unexhausted, then I think that you would have a very strong argument.

But as this case illustrates, the question of whether it's been exhausted or not is something on which people can disagree.

And I suppose why the district court took well over a year to decide this case is the petitioner says, I've exhausted everything, and the prosecutor says, you have not exhausted 12.

And the district court is going by the... going over these one by one and says in the end, you're both wrong.

My list is eight.

And it's that problem of has this claim been exhausted.

Now, if it was a case of deliberately withholding a case from State court and bringing it up fresh in... in the Federal court, that would be a case where the Federal court should say, go away, you didn't even try.

But what do you do with these cases where it's really hard to tell whether the claim has been exhausted?

Mr. Long: That was not the situation in this case, Your Honor.

Justice Ginsburg: Then why did the... the district judge say four on the State's list have been exhausted?

Mr. Long: Well, the... factually the court... the court examined the amended petition and concluded that eight claims in the amended petition were unexhausted.

The problem is this... or... or at least the variance in the facts from what you suggest is this.

Mr. Rhines filed an amended petition in November of 2000 with counsel, after having been through all the record.

He admitted in his amended petition that four of the claims were unexhausted.

He still had 80 days left to run on the statute of limitations.

So he conceded in his amended petition in Federal court that he still had 80 days to run... while there was still 80 days to run on the statute of limitation, that four of the claims he submitted in the petition were unexhausted.

That's not difficult to sort out because defense counsel admitted it, as he pled them.

And so there isn't any tricky question about whether there were unexhausted claims in this petition.

Now, that was in November of 2000.

He waited until the court decided the decision in July of 2002 and didn't pursue his State court remedies until the court ordered him to do that in July of 2002.

And he filed his State habeas to exhaust those admittedly unexhausted claims.

Justice Ginsburg: So that... that would take care of the four claims.

How about the other four?

Mr. Long: Well, it doesn't make any difference at that point, Your Honor.

If there's a single, solitary unexhausted claim, the problem--

Justice Ginsburg: Well, they--

Mr. Long: --is not... is not worse if there gets to be 12 or 15.

Justice Ginsburg: --But those could be... those could be dropped out of the Federal complaint.

There you're saying, district judge, you would be abusing your discretion because admitting that he hadn't exhausted these, he should have gone immediately to do that.

But what about the other four?

Mr. Long: Well, if he... if he goes within the 80 days and immediately files to pursue in State court his unexhausted claims, the statute is tolled.

He doesn't lose the statute.

Justice Scalia: Even without going back to the State court, I don't see anything in this statute which indicates that Congress expected everybody who comes into Federal court with unexhausted claims to have time to remedy that defect by running back to State court and... and filing.

This statute doesn't give any such indication.

And it's clear that will never happen if he files on the 364th day after the conclusion of the State proceedings.

Right?

I mean, his year is up already.

Even if the judge decides the question the next morning, it's too late.

So I... I don't know why we have to be concerned about giving him some entitled second chance to go back to... to State court.

I don't see anything in the statute that... that guarantees or that even envisions that.

And I... I--

Mr. Long: I'm sorry, Your Honor.

Justice Breyer: But I don't agree with that you were saying or you do agree with that, I know.

The... but the... the question that I would have is, is there anything the other way?

I mean, in Duncan, you know, I was dissenting and the thing that sort of moved me is I couldn't imagine Congress really cared about this.

I mean, what they do is they want to have you file within a year.

And they say, well, but if you filed within a year and you're in State court, we don't care anymore.

You're being... if you file in the wrong State court, you're tolled.

We don't really care once you're proceeding.

And now, however, if you go in... into Federal court by mistake instead of State court by mistake, well, you're out of luck on a random basis.

Some judges will get you back in on time.

Other judges won't.

Is there anything in the history or anywhere... I... I'm interested in the history from your point of view, as much as the other.

Is there anything that suggests that Congress cared about that?

Mr. Long: Not that I've found, Your Honor.

Justice Breyer: Either way.

Justice Ginsburg: If that's so, then why isn't a system like the one that the Second Circuit described the most reasonable thing to do, that is, to put very tight deadlines both on the petitioner and on the Federal court, that is, to deny... deny the stay and abey when the prisoner has not been diligent, to put a tight time line on when that prisoner has to go to State court, and a similarly tight line on returning to the Federal court after the State court is done?

And you could check against repeatedly abusing this by saying, and you get only one opportunity to do it.

Mr. Long: I think the answer to the question, Your Honor, is that in order to follow the Second Circuit as you've described, this Court would have to rewrite the interpretation of the exhaustion statute that they issued in Rose v. Lundy.

That's my belief because Rose v. Lundy... or the statute, as interpreted by Rose v. Lundy indicates that at a minimum, the unexhausted claims ought to be dismissed without prejudice and sent back for exhaustion in State court.

Justice Souter: But Rose and Lundy also assumed that they could go back to State court and... and in... in fact this could be done without wiping out the claims.

And the difference between the situation in Rose and Lundy and the situation we've got now is the difference which is focused, I think, in... in Justice Ginsburg's four claims as to which there was disagreement even between the district court and... and the State as to whether there was exhaustion.

There... there isn't a... a... as a... as a systemic matter across the United States, there simply isn't a way for most of these people to go back and litigate their State claims.

Rose and Lundy assumed there was.

Now there isn't.

Mr. Long: Your Honor, if the petitioner is not capable of going back to litigate the State claim, the claim is not unexhausted by definition.

And--

Justice Souter: It may not be... it... it will be waived.

I mean, if... if... on your theory, he... he jumps from the frying pan of nonexhaustion into the fire of waiver.

That's... that's no answer to the problem.

Justice Ginsburg: See, you could... there are two things in Rose v. Lundy, and everybody agrees with the one, you must exhaust in State court.

You cannot have the Federal court take a first view at that question.

You... you must exhaust.

And... but then Rose v. Lundy also said without prejudice, and your reading strikes out without prejudice not based on the defendant's conduct, not based on the petitioner's conduct, but because it took the district court more than the limitation period just to sort out which claims were exhausted and which weren't.

Mr. Long: --I think there are two responses to that, Your Honor.

First of all, the... the fact of whether it is without prejudice in fact or in law is driven by how much time is left on the statute of limitations.

A dismissal without prejudice at the time the amended petition was filed in this case would have left 80 days on the statute and he could have pursued his... his remedy in State court and tolled the statute.

Now, in the... in the more common situation with the habeas petitioner, I think the answer has to be Congress has changed the landscape.

They have changed the landscape relying upon the total exhaustion rule in... that they enacted and that this Court has interpreted.

And they have added the statute of limitations and they've added the tolling provisions, and that has to be entered into the computation.

Now, I think that that simply raises the bar for all petitioners to make doubly sure that if they have a claim, they have presented it to a State court judge because they... they--

Justice Ginsburg: Well, the... the troublesome thing is some petitioners will be able to do just what you said in South Dakota, go back to the State court a second time, because they had a swift district judge, and some won't because the district judge was slow.

So to treat identically situated petitioners differently not because of any lapse on the petitioner's part but solely because one had the luck to get before a swift district judge and the other, the bad luck to get before a procrastinator, that seems arbitrary and not anything that Congress built into the statute.

Mr. Long: --Your Honor, I... I struggle with the... one of the premises of your hypothetical, and the portion I struggle with is the... is the situation where the petitioner, through no fault of his own, either... and I think that's implied in your hypothetical... doesn't go to State court.

I... I think that that is... I think that that's the--

Justice Ginsburg: No, did go.

Did.

Every one of these cases, I say if they came rushing to the Federal court first, no Federal judge would even consider giving them a stay so they can go to the first... first time.

But these... these come up where someone has gone to the State court and then they come to the Federal court with a new petition and there's arguments about what they exhausted and what they didn't.

I'm... I'm leaving out the person who never went to the Federal... State court at all.

That person is... is not the category that this case represents.

This case represents the one who goes to State court and comes to the Federal court and he has arguably some additional claims.

Mr. Long: --The... there's the... the difficulty in the stay and abeyance procedure, as it is currently practiced, I think, is that there is no set of standards, other than the three statutes that we've... that we have discussed, to guide the district court's discretion in when they give stay and abeyance.

Justice Scalia: --General Long, do... do those States that apply stay and abey make a distinction between whether the person who comes with unexhausted claims has exhausted some claims in State court and ones who haven't?

Mr. Long: Well, I think the predicate to getting stay and abeyance, Your Honor, is that there has to be at least the presence of one exhausted claim and one unexhausted--

Justice Scalia: Why should that be?

Mr. Long: --Well, I think that that follows from... I think that follows from Rose v. Lundy which talked about a mixed petition and that's the... that's the factual background.

Justice Scalia: If you get a second bite, why shouldn't you get a first bite?

I mean, I... I don't see... I don't see any reason for treating preferentially the... the person who files in State court but does not file new claims, which he should have known to file at that time, and treating the person who comes to the Federal court with those new claims but doesn't have... doesn't have even one that he took to State court.

I... I don't see any reason to be merciful to one and not the other.

Mr. Long: Well, I think the--

Justice Ginsburg: The... the--

Justice Scalia: But you're... but you're telling me the States do draw a distinction.

Mr. Long: --Well, I don't think--

Justice Scalia: I mean... I mean--

Mr. Long: --it's not the States who draw a distinction.

I'm sorry.

The Federal court--

Justice Ginsburg: --Well, hasn't the second--

Justice Stevens: But the difference is that one of those petitions could be totally dismissed and the other one would not be.

If there were no exhaustion whatsoever, they... they'd plainly dismiss the Federal case.

Mr. Long: --I think so, yes, Your Honor.

Justice Stevens: Whereas, if there's one exhausted claim, they could... they could keep the Federal... petition in Federal court and stay it and let the unexhausted claim be exhausted.

Mr. Long: Well, that's... that's the... it's the stay that we're having the problem with, Justice Stevens.

But... but if there is the presence of one unexhausted claim, the... the total exhaustion requirement--

Justice Stevens: And the judge could dismiss the others.

Mr. Long: --He... he can dismiss the unexhausted one and move forward.

And... and, of course, what has happened in the... since the... the landscape has changed since 1982 and because now the 1-year statute and the tolling provisions, there is more sanction for that dismissal under the total exhaustion requirement than there used to be.

Justice O'Connor: General Long, if you were designing a system to set standards to guide the Federal judge in deciding how to treat these, what standards would you set?

Mr. Long: That's a hard question, Your Honor, because--

Justice O'Connor: Do your best.

[Laughter]

Mr. Long: --I... I think this, Your Honor.

I... I think the court, faced with a mixed petition, ought to first ask why have you not... if... if there is truly an unexhausted claim in this petition, why did you not present that claim previously in State court.

And after that, if... if the... if the answer to that is not satisfactory, I think that the... I think that that ought to be tested on, for example, the cause and prejudice standard or the actual innocence or fundamental miscarriage of justice standards which this Court has announced to cure procedural defaults in extreme cases.

But in the absence of those type of standards, I think that stay and abeyance has been simply applied too broadly and this case is a classic example of the misapplication of stay and abeyance.

Justice Kennedy: Well, are you suggesting then that we could have a rule, oh, somewhat like the grant of a preliminary injunction?

If it's a likelihood of success on the merits, if it's a fundamental right, if there's reason for maybe mistake and not having exhausted, then... then you'd allow us to innovate?

Mr. Long: Well, I--

Justice Kennedy: Because if you have that, we then have a new Gothic jurisprudence where we're reviewing discretion on a collateral issue.

Mr. Long: --Well, but--

Justice Scalia: --Rococo I think.

Mr. Long: --Well, the... the difficulty with the way it is now, Your Honor, is there is no review of the discretion of the district courts at all.

I mean, they simply do it, and--

Justice Kennedy: Well, I suppose the suggestion I made--

Mr. Long: --and it's--

Justice Kennedy: --is preferable than the one I gave.

Would you adopt that or would you insist just that there be no stay and abey at all?

Mr. Long: --Well, our first position, obviously, is no stay and abey at all, that the unexhausted claims ought to be dismissed, as the Eighth Circuit said in this case.

And if they... if they are truly unexhausted, then there is going to be a remedy in State court, and State courts are perfectly capable of identifying constitutional remedies and... and meting out the requirements.

I've had... I've had South Dakota judges send murder cases back to me to try after 12 years, and it's... it's a burdensome thing, and those cases need to move forward.

But what I would envision, Justice Kennedy, is this, that the rule ought to be that... that the... the... that the case is sent back to State court if there is truly, as... as the name implies, an unexhausted claim, implying that there is an available State remedy.

If... if resolution in the State courts does not resolve it, if the case comes back in some fashion, then the court needs to apply some standards like cause and prejudice or fundamental miscarriage of justice, which... which is what is applied in... in procedural default cases, and... and deal with it on that basis.

But the... the current lack of discretion with reference to how stay and abeyance is applied is in my judgment the... that is the... that is the most fundamental problem with--

Justice Ginsburg: --But again--

Mr. Long: --stay and abeyances.

Justice Ginsburg: --I come... I come back to the... the Second Circuit tried to deal with that problem and why isn't that adequate?

They didn't leave the district judges to do whatever was their will.

Mr. Long: The... well, the... the Second Circuit followed very closely to what the... what the district court did here, Your Honor, but what I did not see in the Second Circuit opinions and frankly haven't seen in any of the opinions except the Eighth Circuit opinion was any type of analysis about an explanation of why the petitioner hadn't been prudent and hadn't been diligent in State court.

And... and in the absence of any kind of inquiry like that, I think that stay and abeyance simply is... is... it's unguided.

There are no standards.

If there are no questions, thank you very much.

Justice Stevens: Thank you, General Long.

Mr. Lange, you have 7 minutes left, and normally I wouldn't intrude on your rebuttal time, but I would like to ask you to comment on one thought.

Do you think it would be appropriate before a district judge ever grants a stay and... and abeyance procedure, to make some kind of a preliminary, not exactly a probable cause determination, but some kind of a determination as to whether or not there is arguable merit to the State claim that he wants to stay the proceedings to... to allow him to exhaust?

Rebuttal of Roberto A. Lange

Mr. Lange: Yes, I do, Justice Stevens.

I believe that a district court, in evaluating a request for stay and abeyance, should look to make sure that the petition meets the standards of section 2254(b)(2) which is the provision that allows a district court to reach the merits of unexhausted claims to deny them.

It's similar to what the Court has now promulgated as rule 4 of the rules governing habeas corpus cases.

I think it makes sense for the district court first to look at... at whether there's merit to the petition because there really is no sense to hold in abeyance, pending exhaustion in State court, claims that lack merit.

Obviously, to get stay and abeyance, the petitioner will have had to file timely within his AEDPA period, and the court will have had to have held the case either through the expiration of the AEDPA period or you can imagine some scenarios where on the 364th day--

Justice Kennedy: Well, it's one thing to say that there's... it's utterly without merit and he can deny it, which he's entitled to do under the statute.

It's another thing to say that there's a high probability of success on the merits.

I'm afraid that most of the claims are going to fall in between.

The district judge just doesn't know absent testimony, et cetera, et cetera.

Mr. Lange: --Right, and those should be circumstances where the State court is left to judge whether the claim has merit while the Federal court proceedings are suspended, are abeyed or held in abeyance.

It makes sense, under the exhaustion norms of this Court, to let the State courts pass judgment first on claims that have sufficient merit where they can't be disposed of under rule 4 of the rules governing habeas corpus.

Justice Scalia: Mr.... Mr. Lange, why... why isn't... gee, you have Lange and Long.

Why isn't Attorney General Long's assertion sensible?

That is to say, it's an extraordinary thing to have Federal district courts in all criminal cases reviewing the work of State supreme courts.

We... we got into this in an era when we couldn't trust State supreme courts, especially in racial cases.

But that's where we are now.

But why is it unreasonable to say, look, you get one shot at coming to Federal court?

And if... if you... if you bungle that and you haven't exhausted first, we're not denying your claims.

Go back to State court.

We're just not going to reintervene as Federal courts.

Your... your claims are not dead.

Justice is not denied.

You just have to go back through the State system and we're not going to blue pencil the work of the State system a second time.

That's all.

Why isn't that reasonable?

Mr. Lange: Well, this is Mr. Rhines' one opportunity.

Congress did give in section 2254(a) jurisdiction to the courts and said the Federal courts shall entertain petitions of this... of this nature.

So this is a... a right that Mr. Rhines has to have these entertained.

He filed timely.

Justice O'Connor: Well, to have exhausted claims entertained.

Right?

Is there some... do you say there is some absolute right to have the Federal court hear unexhausted claims?

Mr. Lange: Well, under (b)(1), a claim must be exhausted to support relief from a Federal court.

That is right, Your Honor.

And these claims... if under the petitioner B scenario, the court had ruled promptly or the claims were less complex, allowing them to be disposed of earlier, Mr. Rhines could have had or... and should have all of his claims before the district court to be resolved.

The Court needs to be watchful here not to penalize Mr. Rhines and people who are in similar situations because they have complex claims.

Justice O'Connor: Well, this is not a pro se petitioner.

Mr. Lange: No.

He is represented by counsel, obviously, Your Honor.

I... I think it inappropriate to draw lines between pro se and represented counsel, though, in the realm of habeas.

That I think invites trouble.

So the rule you formulate is obviously not only for Rhines but for pro se litigants as well that... that deserve consideration.

This exhaustion rule is not to be an... a trap for the unwary pro se petitioner.

The whole purpose of the exhaustion rule, as this Court said in Keeney v. Tamayo-Reyes, is to... not to erect a hurdle on the path to Federal habeas court, but to channel claims into an appropriate forum.

And stay and abeyance does just that.

It prohibits further proceeding on a mixed petition in Federal court and channels, indeed requires, as a term of the order that the petitioner go and exhaust the remaining State remedy and come back to court with one exhausted claim.

That is what Rose v. Lundy contemplated and allowed with the dismissal without prejudice.

Justice O'Connor: Earlier you... you suggested that in your view the district court could deny it.

Mr. Lange: If under section 2254(b)(2) it does not meet the standard, yes.

Congress has allowed, because exhaustion is not jurisdictional, for district courts to reach the merits, albeit it to deny exhausted claims.

That's--

Justice Stevens: Mr. Lange, you were appointed by the Court, and on behalf of the Court, I want to thank you for your services and for the quality of your services.

Mr. Lange: --Thank you.

Justice Stevens: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Tuesday, the eighteenth of January at ten o'clock.