GONZALEZ v. THALER

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–895

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RAFAEL ARRIAZA GONZALEZ, PETITIONER v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

on writ of certiorari to the united states court of appeals for the fifth circuit

[January 10, 2012]

Justice Sotomayor delivered the opinion of the Court.

This case interprets two provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The first, 28 U. S. C. §2253(c), provides that a habeas petitioner must obtain a certificate of appealability (COA) to appeal a federal district court’s final order in a habeas proceeding. §2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” §2253(c)(2), and “shall indicate which specific issue” satisfies that showing. §2253(c)(3). We hold that §2253(c)(3) is not a jurisdictional requirement. Accordingly, a judge’s failure to “indicate” the requisite constitutional issue in a COA does not deprive a court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal.

The second provision, 28 U. S. C. §2244(d)(1)(A), establishes a 1-year limitations period for state prisoners to file federal habeas petitions, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” We hold that, for a state prisoner who does not seek review in a State’s highest court, the judgment becomes “final” on the date that the time for seeking such review expires.

I

Petitioner Rafael Gonzalez was convicted of murder in Texas state court. The intermediate state appellate court, the Texas Court of Appeals, affirmed Gonzalez’s conviction on July 12, 2006. Gonzalez then allowed his time for seeking discretionary review with the Texas Court of Criminal Appeals (Texas CCA)—the State’s highest court for criminal appeals—to expire on August 11, 2006. Tex. Rule App. Proc. 68.2(a) (2011). The Texas Court of Appeals issued its mandate on September 26, 2006.

After Gonzalez, proceeding pro se, petitioned unsuccessfully for state habeas relief, he filed a federal habeas petition under 28 U. S. C. §2254 on January 24, 2008, in the U. S. District Court for the Northern District of Texas. His petition alleged, inter alia, that the nearly 10-year delay between his indictment and trial violated his Sixth Amendment right to a speedy trial. The District Court, without discussing Gonzalez’s constitutional claims, dismissed Gonzalez’s petition as time barred by the 1-year statute of limitations in §2244(d)(1)(A). Although Gonzalez argued that his judgment had not become final until the Texas Court of Appeals issued its mandate, the District Court held that Gonzalez’s judgment had become final when his time for seeking discretionary review in the Texas CCA expired on August 11, 2006. Counting from that date, and tolling the limitations period for the time during which Gonzalez’s state habeas petition was pending, Gonzalez’s limitations period elapsed on December 17, 2007—over a month before he filed his federal habeas petition. The District Court denied a COA.

Gonzalez applied to the U. S. Court of Appeals for the Fifth Circuit for a COA on two grounds: (1) his habeas petition was timely, and (2) his Sixth Amendment speedy-trial right was violated. A Court of Appeals judge granted a COA on the question “whether the habeas application was timely filed because Gonzalez’s conviction became final, and thus the limitations period commenced, on the date the intermediate state appellate court issued its mandate.” App. 347. The COA did not mention the Sixth Amendment question.

The Court of Appeals affirmed. 623 F. 3d 222 (2010). Acknowledging that a sister Circuit had run the limitations period from the date of a state court’s issuance of a mandate, the Court of Appeals deemed the mandate’s issuance “irrelevant” to determining finality under §2244(d)(1)(A). Id., at 224, 226 (disagreeing with Riddle v. Kemna, 523 F. 3d 850 (CA8 2008) (en banc)). The Court of Appeals held that because a judgment becomes final at “the conclusion of direct review or the expiration of the time for seeking such review,” §2244(d)(1)(A), the limitations period begins to run for petitioners who fail to appeal to a State’s highest court when the time for seeking further direct review in the state court expires. The Court of Appeals therefore concluded that Gonzalez’s conviction became final on August 11, 2006, and his habeas petition was time barred.

The Court of Appeals did not address Gonzalez’s Sixth Amendment claim or discuss whether the COA had been improperly issued. Nor did the State allege any defect in the COA or move to dismiss for lack of jurisdiction.

Gonzalez petitioned this Court for a writ of certiorari. In its brief in opposition, the State argued for the first time that the Court of Appeals lacked jurisdiction to adjudicate Gonzalez’s appeal because the COA identified only a procedural issue, without also “indicat[ing]” a constitutional issue as required by §2253(c)(3). We granted certiorari to decide two questions, both of which implicate splits in authority: (1) whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal, notwithstanding the §2253(c)(3) defect; 1 and (2) whether Gonzalez’s habeas petition was time barred under §2244(d)(1) due to the date on which his judgment became final. 2 564 U. S. ___ (2011).

II

We first consider whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal.

A

Section 2253, as amended by AEDPA, governs appeals in habeas corpus proceedings. The first subsection, §2253(a), is a general grant of jurisdiction, providing that district courts’ final orders in habeas proceedings “shall be subject to review, on appeal, by the court of appeals.” 28 U. S. C. §2253(a). The second, §2253(b), limits jurisdiction over a particular type of final order. See §2253(b) (“There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant [of] remov[al] . . .”). This case concerns the third, §2253(c), which provides:

“(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals . . .

.     .     .     .     .

“(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

“(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).”

When, as here, the district court denies relief on procedural grounds, the petitioner seeking a COA must show both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U. S. 473, 484 (2000) .

In this case, the Court of Appeals judge granted a COA that identified a debatable procedural ruling, but did not “indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as required by §2253(c)(3). The question before us is whether that defect deprived the Court of Appeals of the power to adjudicate Gonzalez’s appeal. We hold that it did not.

This Court has endeavored in recent years to “bring some discipline” to the use of the term “jurisdictional.” Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5). Recognizing our “less than meticulous” use of the term in the past, we have pressed a stricter distinction between truly jurisdictional rules, which govern “a court’s adjudicatory authority,” and nonjurisdictional “claim-processing rules,” which do not. Kontrick v. Ryan, 540 U. S. 443 –455 (2004). When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented. See United States v. Cotton, 535 U. S. 625, 630 (2002) . Subject-matter jurisdiction can never be waived or forfeited. The objections may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety. “[M]any months of work on the part of the attorneys and the court may be wasted.” Henderson, 562 U. S., at ___ (slip op., at 5). Courts, we have said, should not lightly attach those “drastic” consequences to limits Congress has enacted. Ibid.

We accordingly have applied the following principle: A rule is jurisdictional “[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional.”  Arbaugh v. Y & H Corp., 546 U. S. 500, 515 (2006) . But if “Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional.” Id., at 516. 3 That clear-statement principle makes particular sense in this statute, as we consider—against the backdrop of §2253(a)’s clear jurisdictional grant to the courts of appeals and §2253(b)’s clear limit on that grant—the extent to which Congress intended the COA process outlined in §2253(c) to further limit the courts of appeals’ jurisdiction over habeas appeals.

Here, the only “clear” jurisdictional language in §2253(c) appears in §2253(c)(1). As we explained in Miller-El v. Cockrell, 537 U. S. 322 (2003) , §2253(c)(1)’s plain terms—“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals”—establish that “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Id., at 336. The parties thus agree that §2253(c)(1) is jurisdictional.

The parties also agree that §2253(c)(2) is nonjurisdictional. 4 That is for good reason. Section 2253(c)(2) speaks only to when a COA may issue—upon “a substantial showing of the denial of a constitutional right.” It does not contain §2253(c)(1)’s jurisdictional terms. See Russello v. United States, 464 U. S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally . . .”). And it would be passing strange if, after a COA has issued, each court of appeals adjudicating an appeal were dutybound to revisit the threshold showing and gauge its “substantial[ity]” to verify its jurisdiction. That inquiry would be largely duplicative of the merits question before the court.

It follows that §2253(c)(3) is nonjurisdictional as well. Like §2253(c)(2), it too reflects a threshold condition for the issuance of a COA—the COA’s indication of “which specific issue or issues satisfy the showing required by paragraph (2).” It too “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [appeals] courts.” Arbaugh, 546 U. S., at 515 (internal quotation marks omitted). The unambiguous jurisdictional terms of §§2253(a), (b), and (c)(1) show that Congress would have spoken in clearer terms if it intended §2253(c)(3) to have similar jurisdictional force. Instead, the contrast underscores that the failure to obtain a COA is jurisdictional, while a COA’s failure to indicate an issue is not. A defective COA is not equivalent to the lack of any COA.

It is telling, moreover, that Congress placed the power to issue COAs in the hands of a “circuit justice or judge.” 5 It would seem somewhat counterintuitive to render a panel of court of appeals judges powerless to act on appeals based on COAs that Congress specifically empowered one court of appeals judge to grant. Indeed, whereas §2253(c)(2)’s substantial-showing requirement at least describes a burden that “the applicant” seeking a COA bears, §2253(c)(3)’s indication requirement binds only the judge issuing the COA. Notably, Gonzalez advanced both the timeliness and Sixth Amendment issues in his application for a COA. A petitioner, having successfully obtained a COA, has no control over how the judge drafts the COA and, as in Gonzalez’s case, may have done everything required of him by law. That fact would only compound the “unfai[r] prejudice” resulting from the sua sponte dismissals and remands that jurisdictional treatment would entail. Henderson, 562 U. S., at ___ (slip op., at 5). 6

Treating §2253(c)(3) as jurisdictional also would thwart Congress’ intent in AEDPA “to eliminate delays in the federal habeas review process.” Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 16). The COA process screens out issues unworthy of judicial time and attention and ensures that frivolous claims are not assigned to merits panels. Once a judge has made the determination that a COA is warranted and resources are deployed in briefing and argument, however, the COA has fulfilled that gatekeeping function. Even if additional screening of already-issued COAs for §2253(c)(3) defects could further winnow the cases before the courts of appeals, that would not outweigh the costs of further delay from the extra layer of review. This case, in which the alleged defect would be dispositive, exemplifies those inefficiencies; the State requests that we vacate and remand with instructions to dismiss the appeal based on a §2253(c)(3) defect that it raised for the first time in response to a petition for certiorari. And delay would be particularly fruitless in the numerous cases where, as here, the district court dismissed the petition on procedural grounds and the court of appeals affirms, without having to address the omitted constitutional issue at all.

B

The State, aided by the United States as amicus curiae, makes several arguments in support of jurisdictional treatment of §2253(c)(3). None is persuasive.

First, the State notes that although §2253(c)(3) does not speak in jurisdictional terms, it refers back to §2253(c)(1), which does. The State argues that it is as if §2253(c)(1) provided: “Unless a circuit justice or judge issues a certificate of appealability that shall indicate the specific issue or issues that satisfy the showing required by paragraph (2), an appeal may not be taken to the court of appeals.” The problem is that the statute provides no such thing. Instead, Congress set off the requirements in distinct paragraphs and, rather than mirroring their terms, excluded the jurisdictional terms in one from the other. Notably, the State concedes that §2253(c)(2) is nonjurisdictional, even though it too cross-references §2253(c)(1) and is cross-referenced by §2253(c)(3).

Second, the State seizes on the word “shall” in §2253(c)(3), arguing that an omitted indication renders the COA no COA at all. But calling a rule nonjurisdictional does not mean that it is not mandatory or that a timely objection can be ignored. If a party timely raises the COA’s failure to indicate a constitutional issue, the court of appeals panel must address the defect by considering an amendment to the COA or remanding to the district judge for specification of the issues. 7 This Court, moreover, has long “rejected the notion that ‘all mandatory prescriptions, however emphatic, are . . . properly typed jurisdictional.’ ” Henderson, 562 U. S., at ___ (slip op., at 9); see also Dolan v. United States, 560 U. S. ___, ___ (2010) (slip op., at 5) (statute’s reference to “shall” alone does not render statutory deadline jurisdictional). Nothing in §2253(c)(3)’s prescription establishes that an omitted indication should remain an open issue throughout the case.

Third, the United States argues that the placement of §2253(c)(3) in a section containing jurisdictional provisions signals that it too is jurisdictional. In characterizing certain requirements as nonjurisdictional, we have on occasion observed their “ ‘separat[ion]’ ” from jurisdictional provisions. E.g., Reed Elsevier, Inc. v. Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 7); Arbaugh, 546 U. S., at 515. The converse, however, is not necessarily true: Mere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle. In fact, §2253(c)(3)’s proximity to §§2253(a), (b), and (c)(1) highlights the absence of clear jurisdictional terms in §2253(c)(3).

Finally, the State analogizes a COA to a notice of appeal, pointing out that both a notice and its contents are jurisdictional prerequisites. Federal Rule of Appellate Procedure 3(c)(1) provides that a notice of appeal must: “(A) specify the party or parties taking the appeal”; “(B) designate the judgment, order, or part thereof being appealed”; and “(C) name the court to which the appeal is taken.” We have held that “Rule 3’s dictates are jurisdictional in nature.” Smith v. Barry, 502 U. S. 244, 248 (1992) .

We reject this analogy. We construed the content requirements for notices of appeal as jurisdictional because we were “convinced that the harshness of our construction [wa]s ‘imposed by the legislature.’ ” Torres v. Oakland Scavenger Co., 487 U. S. 312, 318 (1988) . Rule 4, we noted, establishes mandatory time limits for filing a notice of appeal. Excusing a failure to name a party in a notice of appeal, in violation of Rule 3, would be “equivalent to permitting courts to extend the time for filing a notice of appeal,” in violation of Rule 4. Id., at 315. And “time limits for filing a notice of appeal have been treated as jurisdictional in American law for well over a century.” Bowles v. Russell, 551 U. S. 205 , n. 2 (2007). Accordingly, the Advisory Committee Note “makes no distinction among the various requirements of Rule 3 and Rule 4,” treating them “as a single jurisdictional threshold.” Torres, 487 U. S., at 315; see also id., at 316 (“the Advisory Committee viewed the requirements of Rule 3 as jurisdictional in nature”). Here, we find no similar basis for treating the paragraphs of §2253(c) as a single jurisdictional threshold.

Moreover, in explaining why the naming requirement was jurisdictional in Torres, we reasoned that an unnamed party leaves the notice’s “intended recipient[s]”—the appellee and court—“unable to determine with certitude whether [that party] should be bound by an adverse judgment or held liable for costs or sanctions.” Id., at 318. The party could sit on the fence, await the outcome, and opt to participate only if it was favorable. That possibility of gamesmanship is not present here. Unlike the party who fails to submit a compliant notice of appeal, the habeas petitioner who obtains a COA cannot control how that COA is drafted. 8 And whereas a party’s failure to be named in a notice of appeal gives absolutely no “notice of [his or her] appeal,” a judge’s issuance of a COA reflects his or her judgment that the appeal should proceed and supplies the State with notice that the habeas litigation will continue.

Because we conclude that §2253(c)(3) is a nonjurisdictional rule, the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal.

III

We next consider whether Gonzalez’s habeas petition was time barred. AEDPA establishes a 1-year limitations period for state prisoners to file for federal habeas relief, which “run[s] from the latest of” four specified dates. 9 §2244(d)(1). This case concerns the first of those dates: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” §2244(d)(1)(A). The question before us is when the judgment becomes “final” if a petitioner does not appeal to a State’s highest court.

A

In construing the language of §2244(d)(1)(A), we do not write on a blank slate. In Clay v. United States, 537 U. S. 522 (2003) , we addressed AEDPA’s statute of limitations for federal prisoners seeking postconviction relief. See §2255(f)(1) (2006 ed., Supp. III) (beginning 1-year period of limitations from “the date on which the judgment of conviction becomes final”). We held that the federal judgment becomes final “when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,” or, if a petitioner does not seek certiorari, “when the time for filing a certiorari petition expires.” Id., at 527. In so holding, we rejected the argument that, if a petitioner declines to seek certiorari, the limitations period “starts to run on the date the court of appeals issues its mandate.” Id., at 529.

In Jimenez v. Quarterman, 555 U. S. 113 (2009) , we described Clay’s interpretation as comporting “with the most natural reading of the statutory text” and saw “no reason to depart” from it in “construing the similar language of §2244(d)(1)(A).” 555 U. S., at 119. The state court had permitted Jimenez to file an out-of-time direct appeal. We held that this “reset” the limitations period; Jimenez’s judgment would now become final at “the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that [out-of-time] appeal.” Id., at 120–121. Because Jimenez did not seek certiorari, we made no mention of when the out-of-time appeal “conclu[ded].” Rather, we held that his judgment became final when his “time for seeking certiorari review in this Court expired.” Id., at 120. Nor did we mention the date on which the state court issued its mandate. Both Clay and Jimenez thus suggested that the direct review process either “concludes” or “expires,” depending on whether the petitioner pursues or forgoes direct appeal to this Court.

We now make clear what we suggested in those cases: The text of §2244(d)(1)(A), which marks finality as of “the conclusion of direct review or the expiration of the time for seeking such review,” consists of two prongs. Each prong—the “conclusion of direct review” and the “expiration of the time for seeking such review”—relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the “conclusion of direct review”—when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the “expiration of the time for seeking such review”—when the time for pursuing direct review in this Court, or in state court, expires. We thus agree with the Court of Appeals that because Gonzalez did not appeal to the State’s highest court, his judgment became final when his time for seeking review with the State’s highest court expired.

B

Gonzalez offers an alternative reading of §2244(d)(1)(A): Courts should determine both the “conclusion of direct review” and the “expiration of the time for seeking such review” for every petitioner who does not seek certiorari, then start the 1-year clock from the “latest of” the two dates. Gonzalez rejects our uniform definition of the “conclusion of direct review” as the date on which this Court affirms a conviction on the merits or denies a petition for certiorari. In his view, whenever a petitioner does not seek certiorari, the “conclusion of direct review” is the date on which state law marks finality—in Texas, the date on which the mandate issues. Ex parte Johnson, 12 S. W. 3d 472, 473 (Crim. App. 2000) (per curiam). Applying this approach, Gonzalez contends that his habeas petition was timely because his direct review “concluded” when the mandate issued (on September 26, 2006), later than the date on which his time for seeking Texas CCA review “expired” (August 11, 2006). We find his construction of the statute unpersuasive.

First, Gonzalez lacks a textual anchor for his laterin-time approach. The words “latest of” do not appear anywhere in §2244(d)(1)(A). Rather, they appear in §2244(d)(1) and refer to the “latest of” the dates in subparagraphs (A), (B), (C), and (D)—the latter three of which are inapplicable here. Nothing in §2244(d)(1)(A) contemplates any conflict between the “conclusion of direct review” and the “expiration of the time for seeking such review,” much less instructs that the later of the two shall prevail.

Nor is Gonzalez’s later-in-time reading necessary to give both prongs of §2244(d)(1)(A) full effect. Our reading does so by applying one “or” the other, depending on whether the direct review process concludes or expires. Treating the judgment as final on one date “or” the other is consistent with the disjunctive language of the provision.

Second, Gonzalez misreads our precedents. Gonzalez asserts that in Jimenez, we made a later-in-time choice between the two prongs. That is mistaken. Rather, we chose between two “expiration” dates corresponding to different appeals: Jimenez initially failed to appeal to the Texas Court of Appeals and that appeal became final when his “time for seeking discretionary review . . . expired.” 555 U. S., at 117, 119. When Jimenez was later allowed to file an out-of-time appeal, he pursued appeals with both the Texas Court of Appeals and Texas CCA; the out-of-time appeal thus became final when his “[t]ime for seeking certiorari review . . . with this Court expired.” Id., at 116, 120. We adopted the out-of-time appeal’s date of finality over the initial appeal’s date of finality. Id., at 119–121. Critically, by deeming the initial appeal final at the expiration of time for seeking review in state court, and the out-of-time appeal final at the expiration of time for seeking certiorari in this Court, we reinforced Clay’s suggestion that the “expiration” prong governs all petitioners who do not pursue direct review all the way to this Court. 10

Third, Gonzalez argues that AEDPA’s federalism concerns and respect for state-law procedures mean that we should not read §2244(d)(1)(A) to disregard state law. We agree. That is why a state court’s reopening of direct review will reset the limitations period. 555 U. S., at 121. That is also why, just as we determine the “expiration of the time for seeking [direct] review” from this Court’s filing deadlines when petitioners forgo certiorari, we look to state-court filing deadlines when petitioners forgo state-court appeals. Referring to state-law procedures in that context makes sense because such deadlines are inherently court specific. There is no risk of relying on “state-law rules that may differ from the general federal rule.” Clay, 537 U. S., at 531.

By contrast, Gonzalez urges us to scour each State’s laws and cases to determine how it defines finality for every petitioner who forgoes a state-court appeal. That approach would usher in state-by-state definitions of the conclusion of direct review. It would be at odds with the uniform definition we adopted in Clay and accepted in the §2244(d)(1)(A) context in Jimenez. And it would pose serious administrability concerns. Even if roughly “half of the States define the conclusion of direct review as the issuance of the mandate or similar process,” Brief for Petitioner 40, that still leaves half with either different rules or no settled rules at all. 11

Fourth, Gonzalez speculates that our reading will rob some habeas petitioners of the full 1-year limitations period. Gonzalez asserts that our reading starts the clock running from the date that his time for seeking Texas CCA review expired, even though, under Texas law, he could not file for state habeas relief until six weeks later, on the date the Texas Court of Appeals issued its mandate. Tex. Code Crim. Proc. Ann., Art. 11.07, §3(a) (Vernon Supp. 2011). His inability to initiate state habeas proceedings during those six weeks, he argues, reduced his 1-year federal habeas filing period by six weeks. We expect, however, that it will be a rare situation where a petitioner confronting similar state laws faces a delay in the mandate’s issuance so excessive that it prevents him or her from filing a federal habeas petition within a year. 12 A petitioner who has exhausted his or her claims in state court need not await state habeas proceedings to seek federal habeas relief on those claims. To the extent a petitioner has had his or her federal filing period severely truncated by a delay in the mandate’s issuance and has unexhausted claims that must be raised on state habeas review, such a petitioner could file a request for a stay and abeyance from the federal district court. See Rhines v. Weber, 544 U. S. 269, 277 (2005) .

Finally, Gonzalez argues, as an alternative to his later-in-time construction, that his petition should be considered timely because it was filed within a year of when his time for seeking this Court’s review—as opposed to the Texas CCA’s review—expired. We can review, however, only judgments of a “state court of last resort” or of a lower state court if the “state court of last resort” has denied discretionary review. This Court’s Rule 13.1; see also 28 U. S. C. §1257(a) (2006 ed.). Because Gonzalez did not appeal to the Texas CCA, this Court would have lacked jurisdiction over a petition for certiorari from the Texas Court of Appeals’ decision affirming Gonzalez’s conviction. We therefore decline to incorporate the 90-day period for seeking certiorari in determining when Gonzalez’s judgment became final.

*  *  *

In sum, we hold that §2253(c)(3) is a mandatory but nonjurisdictional rule. Here, the COA’s failure to “indicate” a constitutional issue did not deprive the Court of Appeals of jurisdiction to adjudicate Gonzalez’s appeal. We further hold that, with respect to a state prisoner who does not seek review in a State’s highest court, the judgment becomes “final” under §2244(d)(1)(A) when the time for seeking such review expires—here, August 11, 2006. We thus agree with the Court of Appeals that Gonzalez’s federal habeas petition was time barred.

For the reasons stated, the judgment of the Court of Appeals for the Fifth Circuit is

Affirmed.

__________________________________

1  The Circuits have divided over whether a defect in a COA is a jurisdictional bar. Compare, e.g., Phelps v. Alameda, 366 F. 3d 722, 726 (CA9 2004) (no); Porterfield v. Bell, 258 F. 3d 484, 485 (CA6 2001) (no); Young v. United States, 124 F. 3d 794, 798–799 (CA7 1997) (no), with United States v. Cepero, 224 F. 3d 256, 259–262 (CA3 2000) (en banc) (yes).

2  The Circuits have divided over when a judgment becomes final if a petitioner forgoes review in a State’s highest court. Compare, e.g., 623 F. 3d 222, 226 (CA5 2010) (case below) (date when time for seeking such review expires); Hemmerle v. Schriro, 495 F. 3d 1069, 1073–1074 (CA9 2007) (same), with Riddle v. Kemna, 523 F. 3d 850, 855–856 (CA8 2008) (en banc) (date when state court issues its mandate).

3  We have also held that “context, including this Court’s interpretation of similar provisions in many years past, is relevant to whether a statute ranks a requirement as jurisdictional.” Reed Elsevier, Inc. v. Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 13). Here, however, even though the requirement of a COA (or its predecessor, the certificate of probable cause (CPC)) dates back to 1908, Congress did not enact the indication requirement until 1996. There is thus no “long line of this Court’s decisions left undisturbed by Congress” on which to rely. Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region, 558 U. S. ___, ___ (2009) (slip op., at 13). The issuance of a CPC, like the issuance of a COA, was jurisdictional. Contrary to the dissent’s assertions, post, at 8–10 (opinion of Scalia, J.), that fact does not suggest that the indication requirement is jurisdictional as well. If anything, the inference runs the other way. For nearly a century, a judge’s granting or withholding of a CPC, absent any indication of issues, was the fully effective “expression of opinion,” post, at 8, required for an appeal to proceed. AEDPA’s new requirement that judges indicate the specific issues to be raised on appeal has no predecessor provision—indeed, it is the primary difference between a CPC and COA.

4  The United States as amicus curiae contends that §2253(c)(2) is jurisdictional, but the State concedes that it is not. Tr. of Oral Arg. 31.

5  The courts of appeals uniformly interpret “circuit justice or judge” to encompass district judges. See United States v. Mitchell, 216 F. 3d 1126, 1129 (CADC 2000) (collecting cases); Fed. Rule App. Proc. 22(b). Habeas Corpus Rule 11(a) requires district judges to decide whether to grant or deny a COA in the first instance.

6  That fact also distinguishes the indication requirement from every “ ‘similar provisio[n]’ ” that the dissent claims we have deemed jurisdictional. Post, at 5–6. None of our cases addressing those provisions, moreover, recognized or relied on the sweeping “rule” that the dissent now invokes, whereby this Court should enforce as jurisdictional all “procedural conditions for appealing a case from one Article III court to another.” Ibid.; but see, e.g., post, at 6–7, n. 2 (conceding that the “rule” does not apply to criminal appeals); Becker v. Montgomery, 532 U. S. 757, 763 (2001) (failure to sign notice of appeal is a nonjurisdictional omission). All the cases, meanwhile, involved time limits (save one involving Federal Rule of Appellate Procedure 3(c)(1), which we address infra). In Bowles v. Russell, 551 U. S. 205 (2007) , we emphasized our “century’s worth of precedent” for treating statutory time limits on appeals as jurisdictional, id., at 209, n. 2, but even “Bowles did not hold . . . that all statutory conditions imposing a time limit should be con-sidered jurisdictional,” Reed Elsevier, 559 U. S., at ___ (slip op.,at 12). This case, in any event, involves a different type of procedural condition.

7  The dissent’s insistence that there is “no practical, real-world effect” to treating this rule as mandatory, post, at 4, ignores the real world. Courts of appeals regularly amend COAs or remand for specification of issues, notwithstanding the supposed potential to “embarras[s] a colleague.” Post, at 5; see, e.g., Saunders v. Senkowski, 587 F. 3d 543, 545 (CA2 2009) (per curiam) (amending COA to add issue); United States v. Weaver, 195 F. 3d 52, 53 (CADC 1999) (remanding for specification of issues). The government frequently alleges COA defects as grounds for dismissal (as the State did here, at this late stage), apparently not sharing the dissent’s concern that such efforts “yield nothing but additional litigation expenses.” Post, at 5; see, e.g., Porterfield, 258 F. 3d, at 485; Cepero, 224 F. 3d, at 257. Habeas petitioners, too, have every incentive to request that defects be resolved, not only to defuse potential problems later in the litigation, but also to ensure that the issue on which they sought appeal is certified and will receive full briefing and consideration.

8  The dissent claims that we fail to give stare decisis effect to Torres. Post, at 10. Setting aside the fact that Torres involved an unrelated Federal Rule featuring a different textual, contextual, and historical backdrop, the dissent notably fails to grapple with—indeed, its opinion is bereft of quotation to—any supporting reasoning in that opinion. That reasoning is simply not applicable here.

9  Title 28 U. S. C. §2244(d)(1) provides: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— “(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; “(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; “(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or “(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”

10  Gonzalez also argues that Lawrence v. Florida, 549 U. S. 327 (2007) , supports his focus on the state court’s issuance of the mandate because it referred to a mandate in determining when state postconviction proceedings were no longer pending. Lawrence, however, is inapposite. The case involved a different provision, 28 U. S. C. §2244(d)(2), which by its terms refers to “State” procedures.

11  Compare, e.g., PSL Realty Co. v. Granite Inv. Co., 86 Ill. 2d 291, 304, 427 N. E. 2d 563, 569 (1981) (judgment is final “when entered”); Gillis v. F & A Enterprises, 934 P. 2d 1253, 1256 (Wyo. 1997) (judgment is final when “opinion is filed with the clerk”), with Ex parte Johnson, 12 S. W. 3d 472, 473 (Texas CCA 2000) (per curiam) (judgment is final at “issuance of the mandate”).

12  We note that Gonzalez waited four months from the date of the mandate’s issuance before filing a state habeas petition. See 623 F. 3d, at 223. When that petition was dismissed as improperly filed, Gonzalez waited another three months before refiling. Ibid. Even then, his state habeas proceedings concluded several weeks before his 1-year federal deadline elapsed. Id., at 225.

SUPREME COURT OF THE UNITED STATES

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No. 10–895

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RAFAEL ARRIAZA GONZALEZ, PETITIONER v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

on writ of certiorari to the united states court of appeals for the fifth circuit

[January 10, 2012]

Justice Scalia, dissenting.

The obvious, undeniable, purpose of 28 U. S. C. §2253(c) is to spare three-judge courts of appeals the trouble of entertaining (and the prosecution the trouble of defending against) appeals from the denials of relief in habeas and §2255 proceedings, unless a district or circuit judge has identified an issue on which the applicant has made a substantial showing of a constitutional violation. Where no such constitutional issue has been identified, an appeal on other, nonconstitutional, issues (such as the statute of limitations issue that the Court decides today) will not lie.

Today’s opinion transforms this into a provision that allows appeal so long as a district or circuit judge, for whatever reason or for no reason at all, approves it. This makes a hash of the statute. The opinion thinks this alchemy required by the Court’s previously expressed desire to “ ‘bring some discipline’ to the use of the term ‘jurisdictional,’ ” ante, at 5 (quoting Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5)). If that is true, discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction. I would reverse the judgment below for want of jurisdiction.

I Fair Meaning of the Text

Congress amended §2253 to its current form in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In its entirety, the section reads as follows:

“(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.

“(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings.

“(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—

“(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

“(B) the final order in a proceeding under section 2255.

“(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

“(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).”

As the Court acknowledges, ante, at 6–7, all three subsections—(a), (b), and (c)—clearly speak to the jurisdiction of the courts of appeals. Subsection (a) gives appellate jurisdiction to “the court of appeals for the circuit in which the proceeding is held”; subsection (b) carves out certain classes of cases from that appellate jurisdiction; and subsec-tion (c) imposes a procedural hurdle to the exercise of that appellate jurisdiction—a judge’s issuance of a certificate of appealability, see Miller-El v. Cockrell, 537 U. S. 322, 336 (2003) .

Paragraph 2253(c)(3) says that a certificate of appeal-ability must “indicate” which issue or issues in the case involve a substantial showing of a constitutional violation. Everyone agrees that the certificate issued below contains no such indication. See ante, at 5. It appears, in fact, that the issuing judge never considered whether any of Gonzalez’s constitutional claims satisfied paragraph (2). As far as we know, no federal judge has ever determined that Gonzalez “has made a substantial showing of the denial of a constitutional right.” §2253(c)(2). The Court does not even suggest that he has—but it goes on to decide the statute-of-limitations issue in the case.

Its basis for proceeding in this fashion is the remarkable statement that “[a] defective COA is not equivalent to the lack of any COA.” Ante, at 8. That is simply not true with respect to a significant defect in a legal document. Would one say that a deed which lacks the words of conveyance is not equivalent to the lack of a deed? Or that a passport which lacks the Secretary of State’s affirmance of the bearer’s citizenship is not equivalent to the lack of a passport? Minor technical defects are one thing, but a defect that goes to the whole purpose of the instrument is something else. And the whole purpose of the certificate-of-appealability procedure is to make sure that, before a case can proceed to the court of appeals, a judge has made the determination that it presents a substantial showing of the denial of a constitutional right. To call something a valid certificate of appealability which does not contain the central finding that is the whole purpose of a certificate of appealability is quite absurd.

The Court says that “[o]nce a judge has made the determination that a COA is warranted and resources are deployed in briefing and argument, . . . the COA has fulfilled [its] gatekeeping function.” Ante, at 10. But of course it has not done so—it has performed no gatekeeping function whatever—if “the determination that a COA is warranted” has not been accompanied by the issuing judge’s opinion required to support the determination: that there is an issue as to which the applicant has made a “substantial showing of the denial of a constitutional right,” §2253(c)(2). As the very next sentence of today’s opinion discloses, what the Court means by “has fulfilled [its] gatekeeping function” is simply that it will not be worth the trouble of going back, since that would “not outweigh the costs of further delay,” ante, at 9.

That is doubtless true, and it demonstrates the hollowness of the Court’s assurance that “calling a rule nonjurisdictional does not mean that it is not mandatory or that a timely objection can be ignored,” ante, at 10. That statement is true enough as a general proposition: Calling the numerosity requirement in Arbaugh v. Y & H Corp., 546 U. S. 500 (2006) , nonjurisdictional, for example, did not eliminate it, where protest was made, as a continuing mandatory requirement for relief on the merits, id., at 516. Even the time-of-filing requirement in Eberhart v. United States, 546 U. S. 12 (2005) (per curiam), continued to have “bite” even though it was held nonjurisdictional: It prevented relief when the failure to observe it was prop-erly challenged, id., at 19. But the Court has managed to create today a “mandatory” requirement which—precisely because it will not be worth the trouble of going back—has no practical, real-world effect. 1 What is the consequence when the issuing judge, over properly preserved objection, produces a COA like the one here, which does not contain the required opinion? None whatever. The habeas petitioner already has what he wants, argument before the court of appeals. The government, for its part, is either confident in its view that there has been no substantial showing of denial of a constitutional right—in which case it is just as easy (if not easier) to win before three judges as it is before one; or else it is not—in which case a crusade to enforce §2253(c) is likely to yield nothing but additional litigation expenses. As for the three-judge panel of the court of appeals, it remains free, as always, to choose whichever mandatory-but-not-jurisdictional basis it wishes for resolving the case. Cf. Steel Co. v. Citizens for Better Environment, 523 U. S. 83 –94 (1998). Why not choose the one that is sure to be final and that might avoid embarrassing a colleague? No one has any interest in enforcing the “mandatory” requirement. Which is perhaps why, as I proceed to discuss, mandatory requirements for court-to-court appeal are always made jurisdictional.

Past Treatment of Similar Provisions

As the Court acknowledges, “ ‘context, including this Court’s interpretation of similar provisions in many years past, is relevant to whether a statute ranks a requirement as jurisdictional.’ ” Ante, at 6, n. 3 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 13)). Thus, we have said that a requirement prescribed as a condition to obtaining judicial review of agency action is quite different (nonjurisdictional) from a requirement prescribed as a condition to appeal from one court to another (jurisdictional). See Henderson, 562 U. S., at ___ – ___ (slip op., at 7–8). We have always—always, without exception—held that procedural conditions for appealing a case from one Article III court to another are jurisdic-tional. When an appeal is “not taken within the time prescribed by law,” the “Court of Appeals [is] without juris-diction.” George v. Victor Talking Machine Co., 293 U. S. 377, 379 (1934) (per curiam); see also United States v. Robinson, 361 U. S. 220 –230 (1960). When a party’s name is not listed in the notice of appeal, as the Federal Rules of Appellate Procedure require, the court has no jurisdiction over that party’s appeal. Torres v. Oakland Scavenger Co., 487 U. S. 312 –315 (1988).

When this Court reviewed cases by writ of error, the law re quired that the lower-court record be filed with the Court “before the end of the term next succeeding the issue of the writ.” Edmonson v. Bloomshire, 7 Wall. 306, 309 (1869). The Court routinely dismissed cases that did not comply with that requirement. See, e.g., Mesa v. United States, 2 Black 721, 721–722 (1863) (per curiam); Edmonson, supra, at 309–310; Steamer Virginia v. West, 19 How. 182, 183 (1857). The same jurisdictional treatment was accorded to failure to serve notice on the defendant in error within the succeeding term, see, e.g., United States v. Curry, 6 How. 106, 112–113 (1848); Villabolos v. United States, 6 How. 81, 88, 91 (1848), and to failure to file the writ of error with the clerk of the lower court, see, e.g., Credit Co. v. Arkansas Central R. Co., 128 U. S. 258, 261 (1888) ; Scarborough v. Pargoud, 108 U. S. 567 (1883) . Today, when a petition for certiorari in a civil case is not filed within the time prescribed by 28 U. S. C. §2101(c), this Court lacks jurisdiction. Federal Election Comm’n v. NRA Political Victory Fund, 513 U. S. 88, 90 (1994) (citing Missouri v. Jenkins, 495 U. S. 33, 45 (1990) ); see also Matton S. S. Co. v. Murphy, 319 U. S. 412, 415 (1943) (per curiam). 2

So strict has been the rule enforcing as jurisdictional those requirements attached to court-from-court appeals, that we have applied it to a requirement contained in a statute not even addressed to the courts. Section 518(a) of Title 28 charges the Solicitor General with “conduct[ing] and argu[ing] suits and appeals in the Supreme Court . . . in which the United States is interested.” We held that, absent independent statutory authority, an agency’s petition for certiorari filed without authorization from the Solicitor General does not suffice to invoke our jurisdiction. NRA Political Victory Fund, supra, at 98–99. 3

Jurisdictional enforcement of procedural requirements for appeal has deep roots in our jurisprudence. Chief Justice Taney dismissed an appeal in which the citation was not issued and served in time, because “we have no power to receive an appeal in any other mode than that provided by law.” Villabolos, supra, at 90. And Chief Justice Chase wrote, in a case dismissing an appeal for failure to file in time:

“In the Judiciary Act of 1789, and in many acts since, Congress has provided for [appellate courts’] exercise [of jurisdiction] in such cases and classes of cases, and under such regulations as seemed to the legislative wisdom convenient and appropriate. The court has always regarded appeals in other cases as excepted from the grant of appellate power, and has always felt itself bound to give effect to the regulations by which Congress has prescribed the manner of its exercise.” Castro v. United States, 3 Wall. 46, 49 (1866).

Jurisdictional Nature of Predecessor Provision

But similarity to a general type of provision that has always been held jurisdictional is not all that supports the jurisdictional character of §2253(c)(3). Its very predecessor statute made a judge’s expression of opinion a condition of appellate jurisdiction. The certificate of probable cause, of which the COA was born, arrived on the scene over 100 years ago in “An Act Restricting in certain cases the right of appeal to the Supreme Court in habeas corpus proceedings,” Act of Mar. 10, 1908, ch. 76, 35Stat. 40:

“[F]rom a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a State court no appeal to the Supreme Court shall be allowed unless the United States court by which the final decision was rendered or a justice of the Supreme Court shall be of opinion that there exists probable cause for an appeal, in which event, on allowing the same, the said court or justice shall cer-tify that there is probable cause for such allowance.”

The last version of this statute, before it was amended to its current form in AEDPA, provided for issuance of the certificate of probable cause by a circuit judge instead of a justice. See §2253, 62Stat. 967 (codified at 28 U. S. C. §2253). Even applying the Court’s simplistic rule that the jurisdictional restriction must be contained in the very same paragraph as the procedural requirement, there is no doubt that under this statute a judge’s certification that there was probable cause for an appeal was jurisdictional. See, e.g., Ex parte Patrick, 212 U. S. 555 (1908) (per cu-riam); Bilik v. Strassheim, 212 U. S. 551 (1908) (per cu-riam). There is no reason whatever to think that Congress rendered the statement of opinion unnecessary for jurisdiction by (1) extending the requirement for it to §2255 proceedings; (2) requiring the opinion to address a more specific point (not just probable cause for an appeal but presence of an issue presenting a “substantial showing of the denial of a constitutional right”) 4 ; and (3) giving the document in which the judge is required to express the opinion a name (“certificate of appealability”)—so that now a “certificate of appealability” without opinion will suffice. Neither any one of these steps, nor all of them combined, suggest elimination of jurisdictional status for the required expression of opinion. 5 It would be an en-tirely strange way of achieving that result. It was not a strange way, however, of dividing the now more complex and lengthy provision into manageable subsections.

Stare Decisis Effect of Torres

In addition to the fact that conditions attached to court-to-court appeal have always been held jurisdictional, and the fact that this statute’s predecessor was held to be so, we have considered, and found to be jurisdictional, a statute presenting precisely what is at issue here: a provision governing court-to-court appeals which made particular content a required element of a document that the statute said was necessary for jurisdiction; and which did that in a separate section that “excluded the jurisdictional terms,” ante, at 10. That case flatly contradicts today’s holding. In Torres v. Oakland Scavenger Co., 487 U. S. 312 , we dealt with Rule 3(c)(1) of the Federal Rules of Appellate Procedure. Rule 3(a) of those Rules makes a notice of appeal necessary to appellate jurisdiction—just as §2253(c)(1) makes a certificate of appealability necessary. And Rule 3(c)(1), which, like §2253(c)(3), does not contain jurisdictional language, says what the requisite notice of appeal must contain—just as §2253(c)(3) says what the requisite certificate of appealability must contain:

“The notice of appeal must:

“(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice . . . ;

“(B) designate the judgment, order, or part thereof being appealed; and

“(C) name the court to which the appeal is taken.”

In Torres we held that the Court of Appeals lacked jurisdiction over the appeal of a party not properly named in the notice of appeal. 487 U. S., at 314–315. The parallel is perfect.

The Court claims that the jurisdictional consequences of Rule 3(c) were “ ‘imposed by the legislature,’ ” ante, at 12 (quoting Torres, supra, at 318), which according to the Court’s analysis “ ‘clearly state[d],’ ” ante, at 6 (quoting Arbaugh, 546 U. S., at 515), that Rule 3(c) is jurisdictional. But the legislature there did precisely what it did here: made a particular document necessary to jurisdiction and then specified what that document must contain. 6 I certainly agree that that is a clear statement that a document with the requisite content is necessary to jurisdiction. But the Court does not. So to distinguish Torres it has to find something else in Rule 3(c) that provided a “clear statement” of what “Congress intended,” ante, at 6–7. The best it can come up with, ante, at 12, is an unclear statement, and that not from Congress but from Advisory Committee Notes referred to in the Torres opinion. Such Notes are (of course) “the product of the Advisory Committee, and not Congress,” and “they are transmitted to Congress before the rule is enacted into law.” United States v. Vonn, 535 U. S. 55 , n. 6 (2002). They are, in other words, a species of legislative history. I know of no precedent for the proposition that legislative history can satisfy a clear-statement requirement imposed by this Court’s opinions. Does today’s distinguishing of Torres mean that legislative history can waive the sovereign immunity of the United States? See United States v. Nordic Village, Inc., 503 U. S. 30 –34 (1992). Or abrogate the sovereign immunity of the States? See Atascadero State Hos-pital v. Scanlon, 473 U. S. 234, 242 (1985) . Or give retroactive effect to new legislation? See Greene v. United States, 376 U. S. 149, 160 (1964) . Or foreclose review of agency actions? See Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967) . Today’s opinion is in this respect a time-bomb.

To make matters worse, the Advisory Committee Note considered by the Torres Court—as “support for [its] view,” 487 U. S., at 315—did not clearly say that Rule 3(c)’s requirements were jurisdictional. It said this:

“ ‘Rule 3 and Rule 4 combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is “mandatory and jurisdictional,” United States v. Robinson, 361 U. S. 220, 224 (1960) , compliance with the provisions of those rules is of the utmost importance.’ ” 487 U. S., at 315 (quoting 28 U. S. C. App., p. 467; alteration omitted and emphasis added).

To say that timely filing of a notice of appeal is jurisdictional, and that placing within the notice of appeal what Rule 3 says it must contain is “of the utmost importance,” does not remotely add up to a clear statement that placing within the notice of appeal what Rule 3 says it must contain is jurisdictional. There is simply no principled basis for saying that Torres satisfies the “clear-statement principle,” ante, at 6, except the commonsense notion that when a document is made jurisdictional, and the required contents of that document specified, a document that does not contain those contents cannot confer jurisdiction. 7

The Court is not willing to say that Torres is no longer good law, but I doubt whether future litigants will be so coy. They know that in the past, to avoid the uncongenial rigidity of the rule that procedures attending court-to-court appeals are jurisdictional, we have performed wondrous contortions to find compliance with those rules. For example, in Smith v. Barry, 502 U. S. 244, 248 (1992) , we held that an “informal brief” filed after a defective notice of appeal counted as a valid notice of appeal. In Foman v. Davis, 371 U. S. 178, 181 (1962) , we held that a notice of appeal from the denial of a motion to vacate the judgment was also a notice of appeal from the underlying judgment. And in Houston v. Lack, 487 U. S. 266, 270 (1988) , we held that a prisoner’s notice of appeal was “filed” when it was delivered to prison authorities for forwarding to the district court. These (shall we say) creative interpretations of the procedural requirements were made necessary by the background principle that is centuries old: “[I]f the mode prescribed for removing cases by writ of error or appeal be too strict and technical, and likely to produce inconvenience or injustice, it is for Congress to provide a remedy by altering the existing laws; not for the court.” United States v. Curry, 6 How. 106, 113 (1848). But if we have been willing to expose ourselves to ridicule in order to approve implausible compliance with procedural prerequisites to appeal, surely we may be willing to continue and expand the process of simply converting those obnoxious prerequisites into the now favored “claims processing rules,” enabling us to avoid unseemly contortions by simply invoking the ever-judge-friendly principles of equity.

What began as an effort to “ ‘bring some discipline’ to the use of the term ‘jurisdictional,’ ” ante, at 5 (quoting Henderson, 562 U. S., at ___ (slip op., at 5)), shows signs of becoming a libertine, liberating romp through our established jurisprudence.

II

A few remaining points raised by the Court’s opinion warrant response.

The Court holds that the requirement imposed by paragraph (c)(2) (that a COA may issue “only if the applicant has made a substantial showing of the denial of a constitution-al right”) is not jurisdictional, and says that “[i]t follows that §2253(c)(3) is nonjurisdictional as well.” Ante, at 7. I need not reach the issue whether (c)(2) is jurisdictional—though it seems to me that the Court disposes rather summarily of the Solicitor General’s view that it is. And I need not confront the Court with the back-at-you argument that if (c)(3) is jurisdictional (as I think) then (c)(2) is as well. For whether one runs it backwards or forwards, the argument is a bad one. Assuming that (c)(2) is nonjurisdictional, it does not at all “follow” that (c)(3) is nonjurisdictional as well. Paragraph (c)(3) is jurisdictional not because it is located in subsection (c), but because it describes the required content of a COA. Paragraph (c)(2) does not; it sets forth the criterion for a COA’s issuance. A judge may apply that criterion erroneously but still produce a COA that (as paragraph (c)(3) requires) “indicate[s] which specific issue or issues satisfy the showing required by paragraph (2).” It no more follows that the erroneousness of the judge’s indication must destroy the jurisdiction that the COA creates, than it followed under the predecessor statute that the erroneousness of the certification of probable cause for an appeal destroyed the jurisdiction that the certification created. 8 The two issues are quite separate: what the judge must find, and what the COA (or certification) must contain.

The Court points out that Gonzalez raised the Sixth Amendment issue in his application for a COA, that “[a] petitioner, having successfully obtained a COA, has no control over how the judge drafts the COA,” and that the petitioner, “as in Gonzalez’s case, may have done everything required of him by law.” Ante, at 8. Perhaps it is true that the defective COA was not at all Gonzalez’s fault—though he could have promptly moved to amend it. But no-fault elimination of jurisdiction is not forbidden. In Bowles v. Russell, 551 U. S. 205 (2007) , we enforced a time limit on notice of appeal where the district court had purported to extend the time to file and the appellant had complied with the court’s order. Id., at 207, 213–214. It did not matter that the fault lay with the court.

Finally, the Court points out that treating §2253(c)(3) as jurisdictional would waste a lot of time. “Even if additional screening of already-issued COAs for §2253(c)(3) defects could further winnow the cases before the courts of appeals, that would not outweigh the costs of further delay from the extra layer of review.” Ante, at 9. But that is not an argument directed to the statute before us; it is an argument directed against enforcement of all jurisdictional requirements (all of which, I suspect, are the object of the Court’s mounting disfavor). And the argument may not even be true, except in the (presumably rare) case where the jurisdictional prescription is disregarded. Over the long term, the time saved to judges and lawyers by an enforceable requirement that appeals be screened by a single judge may vastly outweigh the time wasted by the occasional need for enforcement. That, it seems to me, is what Congress believed.

*  *  *

Terminology is destiny. Today’s holding, and the erosion of our prior jurisprudence that will perhaps follow upon it, is foreshadowed and facilitated by the unfortunate terminology with which we have chosen to accompany our campaign to “bring some discipline” to determinations of jurisdiction. We have said that the universe of rules placing limitations upon the courts is divided into (1) “claims processing rules,” and (2) jurisdiction-removing rules. Unless our prior jurisprudence is to be repudiated, that is a false dichotomy. The requirement that the unsuccessful litigant file a timely notice of appeal, for example, is (if the term is to have any meaning) a claims-processing rule, ordering the process by which claims are adjudicated. Yet as discussed above, that, and all procedures that must be followed to proceed from one court to another, have always been deemed jurisdictional. The proper dichotomy is between claims processing rules that are jurisdictional, and those that are not. To put it otherwise suggests a test for jurisdiction that is not to be found in our cases. 9

At the end of the day, the indication requirement in §2253(c)(3) is “ ‘imposed by the legislature and not by the judicial process.’ ” Torres, 487 U. S., at 318 (quoting Schiavone v. Fortune, 477 U. S., 21, 31 (1986)). Whether or not its enforcement leads to a harsh result, wastes time in this particular case, or (though the Court does not give this as a reason) prevents us from reaching a circuit conflict we are dying to resolve, we are obliged to enforce it. I respectfully dissent.

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1  The Court suggests that I “ignor[e] the real world,” ante, at 11, n. 7, in which litigants and courts have taken steps to correct a defective COA. But these actions are unsurprising in a world in which there was the possibility that this Court would treat §2253(c)(3) as a jurisdictional requirement and a court of appeals had already done so. The New World of the Court’s making, in which it is certain that an issuing judge’s failure to identify any issue justifying a COA will not have jurisdictional consequences, is yet unexplored.

2  Since the time limits for filing petitions for certiorari in criminal cases are “not enacted by Congress but [are] promulgated by this Court under authority of Congress to prescribe rules,” we have held that they may “be relaxed by the Court in the exercise of its discretion when the ends of justice so require.” Schacht v. United States, 398 U. S. 58, 64 (1970) . The indication requirement of §2253(c)(3), of course, has been “imposed by the legislature and not by the judicial process.” Schiavone v. Fortune, 477 U. S. 21, 31 (1986) .

3  The Court cites Becker v. Montgomery, 532 U. S. 757 (2001) , as a counter-example. Ante, at 9, n. 6. We held there that an appellant’s failure to sign his notice of appeal, see Fed. Rule Civ. Proc. 11(a), within the time prescribed for filing a notice of appeal, see Fed. Rule App. Proc. 4(a)(1), did not require dismissal where the notice itself was timely filed. 532 U. S., at 762–763. We did not hold, however, that the signing requirement was nonjurisdictional; we had no occasion to do so. We held that Becker had complied with Civil Rule 11(a) because the error was “ ‘corrected promptly after being called to [his] attention,’ ” id., at 764 (quoting Fed. Rule Civ. Proc. 11(a)).

4  The Court believes that the fact that this “new requirement . . . has no predecessor provision” suggests that it is nonjurisdictional. Ante, at 6, n. 3. To begin with, it is not that new, and it has a predecessor provision; it merely adds detail to the jurisdictional opinion that was previously required. But even if the requirement were entirely unprecedented, when it appears within a textual structure that makes it jurisdictional (as our opinion in Torres v. Oakland Scavenger Co., 487 U. S. 312 (1988) , held, see infra, at 10–12), it would be an entirely unprecedented jurisdictional provision.

5  The Court’s opinion suggests that “[i]t would seem somewhat counterintuitive to render a panel of court of appeals judges powerless to act on appeals based on COAs that Congress specifically empowered one court of appeals judge to grant.” Ante, at 8. To begin with, we do not think that an anomaly. It makes entire sense to enable a single circuit judge to nip improper appeals in the bud, sparing parties the trouble of an appeal, and courts the expenditure of three times as much judicial energy. But if it were an anomaly, it would be one that existed as well under the prior statute, which was held to be jurisdictional.

6  The Court’s claim that “Torres involved . . . a different textual, contextual, and historical backdrop,” ante, at 13, n. 8, does not withstand scrutiny. First, consider the “textual backdrop.” The Court cannot really believe that Rule 3(c)(1)’s statement that a notice of appeal “must . . . specify” the appealing party is “ ‘clear’ jurisdictional language,” ante, at 7, while §2253(c)(3)’s “shall indicate” the issue or issues is not. If it did, it would say as much, since that would readily distinguish Torres. And then consider the “contextual” (whatever that means) and “histor-ical backdrop.” Each provision, in mandatory-but-not-jurisdictional language, specifies what another document, itself jurisdictional in light of statutory text and history, must contain. The two cases are, of course, literally “different,” ante, at 13, n. 8, but not in any legally relevant way.

7  The Court also tries to distinguish Torres on the ground that failure to comply with Rule 3 presented a different “possibility of gamesmanship,” ante, at 13, from that presented here. I fail to see the relevance of that happenstance. The premise of the Court’s opinion is that the question of jurisdiction vel non is governed by a “clear-statement principle,” ante, at 6. The statement here is precisely as clear as the statement in Torres. Do we enforce clear statements only when there is a “possibility of gamesmanship”? The Court’s free-wheeling purposivism defies textual analysis.

8  We held in Nowakowski v. Maroney, 386 U. S. 542, 543 (1967) (per curiam), that “when a district judge grants [a certificate of probable cause], the court of appeals must grant an appeal . . . and proceed to a disposition of the appeal in accord with its ordinary procedure.” See also Carafas v. LaVallee, 391 U. S. 234, 242 (1968) (Nowakowski requires “that the appeal [be] considered on its merits . . . in cases where a certificate of probable cause has been granted”).

9  It may well be that what I have called a false dichotomy was indeed meant to revise our jurisprudence. In Kontrick v. Ryan, 540 U. S. 443, 455 (2004) , we said by way of dictum the following: “Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Unless an appeal lacking a timely filing of a notice of appeal can be considered one that falls outside the appellate court’s “subject-matter jurisdiction” (which would be an odd usage), Kontrick’s dictum effectively announced today’s decision, the overruling of Torres and Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257 (1978) , and the elimination of jurisdictional treatment for all procedural requirements for appeal. That the announcement has not been heeded is demonstrated by Bowles v. Russell, 551 U. S. 205 (2007) (decided after Kontrick), which (over the dissent of the author of Kontrick) reaffirmed Browder. I confess error in joining the quoted portion of Kontrick.

Print this transcript Transcript: 

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case No. 10-895, Gonzalez v. Thaler.

Ms. Millett.

Ms Millett: Mr. Chief Justice, and may it please the Court:

The -- the court of appeals in this case had jurisdiction to adjudicate the appeal, but in doing so it decided the case wrongly.

Mr. Gonzalez's petition for habeas corpus was timely because it was filed within a year of the conclusion of direct appellate proceedings in the State court, and at the -- within a year of that court's ending of his appeal process.

With respect to jurisdiction, jurisdiction existed because a certificate of appealability was issued.

It rested upon a substantial showing of the denial of a constitutional right.

To be sure, the judge in issuing that certificate did not identify the substantial constitutional question required by 2253(c)(3).

That is a requirement.

It is mandatory, but it is not jurisdictional.

Chief Justice John G. Roberts: What if he had identified a constitutional issue, speedy trial issue?

Does that give the Court the authority to consider a different constitutional issue, Fourth Amendment issue?

Ms Millett: Yes, it does.

Once -- this is a gatekeeping function to identify which case, which appeal should go forward and claim the attention of the Court.

But the text of the statute and 22 -- that's on page -- excuse me -- page 3a of the appendix to the blue brief.

It provides that an appeal may not go forward and the certificate of appealability may go forward.

The operative language here in (c)(1) is that this is about an appeal going forward.

So once the certificate identifies issues, the appeal goes forward.

It's much like 1292(b), where certification of questions comes to an appellate court, and they decide whether to take interlocutory review.

Once they do, they are not bound to just those questions.

The entire order comes up for review.

Chief Justice John G. Roberts: So what if it identifies something that is not remotely a Federal constitutional issue.

By the terms of the COA, it's quite clear that, where there's a State law issue or something else, there is no constitutional plausibility on the face of it.

Does that still work for you?

Ms Millett: It -- it works in the sense that it's not a jurisdictional bar to going forward.

It is a violation of (c)(3).

If timely raised by the State, then it can either be dismissed or revisited by the original judge.

An appeal from the authorizing judge--

Justice Antonin Scalia: How do -- how do you decide whether it's a jurisdictional bar?

You acknowledge that the issuance by a judge of a certificate of appealability is a jurisdictional step; right?

Ms Millett: --This Court so held--

Justice Antonin Scalia: That is jurisdictional.

If he doesn't do that, there's no jurisdiction.

Ms Millett: --Because this Court held in Miller-El--

Justice Antonin Scalia: Okay.

So -- so the issue is whether (c)(3), which says

"The certificate of appealability shall indicate which specific issue or issues satisfy the showing required. "

whether that provision is a requirement for the validity of the certificate of appealability.

If it is, then there is no jurisdiction, because the certificate of appealability is invalid.

Ms Millett: --Well, I don't--

Justice Antonin Scalia: Isn't that right?

Ms Millett: --I don't agree that the so-called content validity of a document that is post hoc certifying a gatekeeping requirement is itself jurisdictional, because there is a--

Justice Antonin Scalia: Well, let's take the Fourth Amendment, I mean, which says

"No warrant shall issue but upon probable cause. "

Okay?

So -- but then it goes on,

"supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. "

Is a warrant valid if indeed it does not meet those requirements of being supported by oath or affirmation, and particularly describing the--

Ms Millett: --No, a warrant may well not be valid if it doesn't--

Justice Antonin Scalia: --It won't be valid.

It will just be invalid.

Ms Millett: --But the certificate of appealability is invalid is matter of law here.

It's an incorrect -- it's an incorrect action by the court.

That doesn't make it jurisdictional.

Warrants aren't jurisdictional, either, in that sense.

Justice Elena Kagan: Just to take a kind of nutty example, Ms. Millett, suppose that a judge took a piece of paper and typed the words "certificate of appealability" on top and issued it.

Still jurisdiction to take the appeal?

Ms Millett: Still jurisdiction to take the appeal.

Of course, one would expect -- one would expect either the court of appeals judges or the State, which -- both of which have every incentive to check on these things, to raise the issue.

But the question is -- when something happens--

Justice Elena Kagan: So what counts as a certificate of appealability is I guess the question.

All you need is those three words and then you have a certificate of appealability?

Ms Millett: --Well, I think it--

Justice Elena Kagan: --to which jurisdiction attaches?

Ms Millett: --There's more to it.

I mean, it's not issued by a clerk's office, right?

The statute requires a judge to do this, a Federal judge, circuit judge or justice -- circuit justice -- to issue this.

And these are -- these are officials who are sworn to uphold the law and the Constitution.

And when they do this, when they make these determinations, they aren't handing these out like candy; they are deciding that their court, their colleagues, maybe themselves, should invest resources in this process.

So the fact that a certificate is issued is not simply a piece of paper coming out.

I think it is fair to presume that it is a deliberate determination by a judicial officer.

Justice Ruth Bader Ginsburg: Ms. Millett, suppose, instead of having a statute broken down into (c)(1), (2) and (3), Congress had written (c) as just one paragraph that says: You must have a certificate of appealability, and this is what the certificate must contain.

No division into (2) and (3).

Would you still maintain that only the first sentence of the paragraph is jurisdictional and the rest is not?

Ms Millett: Well, my position would be harder for precisely the reason you phrased.

And as Justice Scalia was asking, how do we tell?

These are -- these are jobs of statutory construction, and the fact that Congress broke these two steps out and broke (c)(3) out by itself, and there is a noticeable turn in the language by the time you get to (c)(3) -- (c)(1) says "no appeal shall be taken".

That sounds jurisdictional.

(c)(3) says

"a document shall indicate issues after the fact. "

The important thing to understand here is that you not only have the language shifting materially, but you're starting presumption, the starting presumption here, is that we need a clear direction from Congress before we decide that something is jurisdictional.

And this Court has faced language than (c)(3).

For example, in Reed--

Justice Samuel Alito: Suppose the Petitioner asks for a certificate of appealability on 10 issues, and the circuit judge says I'm granting it on issue 1, I'm denying it on issue 2 through 9, 2 through 10.

Is there jurisdiction to consider 2 through 10?

Ms Millett: --There is jurisdiction to consider.

It's obviously within the discretion of the court.

They could also determine not to.

And I say that again because the language talks -- far more emphatic--

Justice Samuel Alito: Well, in that situation then, if the State moves to dismiss the arguments that are made by Petitioner on issues 2 through 10, would the -- would the panel be obligated to do that?

Ms Millett: --No, it wouldn't.

It would not be obligated to, because what (c)(1) says is this determines when an appeal comes forward, the whole appeal comes forward.

Justice Samuel Alito: It could do that without issuing a new -- without issuing a certificate of appealability, without saying we think that the judge who issued the certificate of appealability was incorrect, that jurists of reason could disagree on issues 2 through 10?

Ms Millett: Well, I think -- I think whether you have to -- the panel would then have to do the paperwork of doing a new certificate of appealability.

Adjusting its own decision in the course of its ruling, explain that we've decided to reach these is not, I don't think, of jurisdictional significance, which--

Justice Antonin Scalia: Ms. Millett, it seems to me you beg the question when you say that the issue is whether the appeal will go forward.

That's precisely what -- what the issue is here, whether -- it is that the appeal will go forward or whether an appeal on an identified issue will go forward.

That's exactly what we are talking about.

Ms Millett: --Well, it's a statutory construction question, but Congress--

Justice Antonin Scalia: And it seems that the structure of the statute wants an appeal to go forward on a particular issue, and -- and not in -- not in general on -- on who knows how many issues.

Ms Millett: --Well, Justice Scalia, with respect, that's not what the statute says.

Congress could have written the statute that way, but I think it would be extraordinary to tell courts that an appeal comes forward but we are only going to allow you to look at this precise issue decided by one judge.

Justice Antonin Scalia: It says it doesn't come forward, doesn't come forward unless there is a certificate of appealability.

Ms Millett: Yes.

Justice Antonin Scalia: And then it says the certificate of appealability shall indicate which specific issues are issues satisfying the showing required.

Ms Millett: But nowhere--

JUSTICE SCALIA, I mean, I read that as saying you -- we are going to have an appeal, but just an appeal on the issue that's identified.

First of all, I mean, courts can certainly do that as a matter of discretion, but whether--

Justice Ruth Bader Ginsburg: Then that would exclude this case, wouldn't it, because there is a constitutional issue.

It's the speedy trial issue.

But that issue was not reached below, because the case was dismissed as untimely.

So the only constitutional issue that's in the case is one that couldn't be adjudicated by the court of appeals.

Isn't that right?

Is there another constitutional issue other than the speedy trial issue?

Ms Millett: --There -- there are other issues that were raised.

I think for our purposes that the strongest one that was most clearly substantial is the speedy trial one.

And that's the one that we identified.

Justice Ruth Bader Ginsburg: It's a little odd that you would identify that issue for the court of appeals when the court of appeals couldn't take it up because it wasn't reached below, because the case was -- was dismissed at an earlier stage.

Ms Millett: Well, I think, Justice Ginsburg, your question actually captures why these mistakes happen by court of appeals judges.

The court of appeals judge presumably -- and again, I'm just presuming here.

This Court's seen this mistake happen before.

And I think what -- the judge that looked at this, didn't make a determination there wasn't a substantial constitutional question, had to know that that was there.

But for the court of appeals' purposes, they are just going to sort out the procedural question, and if it's timely they are not going to address speedy trial in the first instance.

That would go back to the district court.

So that's one of the reasons I think just as a practical matter why this mistake happens sometimes, in this certificate of appealability process.

But the fundamental question here is one of statutory construction: Did Congress make clear, clear at level we require for jurisdiction, clear that we -- at the level we would require for holding -- and I've never seen this anywhere in this Court's precedents -- holding that an individual pro se prisoner who does everything reasonably possible, fully and timely complies with all obligations, will still have his right to first habeas on a substantial constitutional claim irretrievably jurisdictionally foreclosed because the court of appeals judge miswrote a certificate documenting a judgment that the officer made?

Justice Anthony Kennedy: Can you -- can you make the argument -- does it help you -- in distinguishing the notice of appeals section, to -- to say that the notice of appeal had to say the judgment or order that's being appealed?

That's almost clerical.

It doesn't require any -- any discretion on the part of the judge or extensive review of the record, whereas in the COA there has to be an element of judgment in deciding what the constitutional issue is.

Does that help you distinguish the two?

You rely on the fact that the notice of appeals cases were decided before our -- our case indicating that it has to be clear language.

Ms Millett: I think certainly that there is that point.

I think what's important to recognize is that there is actually a similarity between this Court's notice of appeal cases in something like Houston v. Lack, the mail -- prison mailbox rule.

You have a specific textual jurisdictional requirement in the -- in the rules, that requires filing the notice of appeal with the clerk of the district court.

And this Court said look, when it comes to prisoners who have done everything humanly possible within their control to meet the jurisdictional requirements, we are not going to interpret these rules -- as part of the presumption, we don't interpret rules to strip away jurisdiction from individuals who have done everything humanly possible, particularly when the facts on the ground are that the statute was satisfied.

The facts here are that it was met, and there is every reason to think that Judge Garza made that determination--

Justice Antonin Scalia: Well, but--

Ms Millett: --but didn't want to go into the speedy trial--

Justice Antonin Scalia: --Done everything humanly possible and just because of the mistake of a -- of a district judge, it can't go forward.

But that happens.

What if a district judge does -- makes a mistake and -- and he thinks that there has not been a substantial showing of the denial of a constitutional right?

He makes a mistake about that.

What happens?

Ms Millett: --That can be appealed.

Justice Antonin Scalia: The same -- the same terrible result could--

Ms Millett: That can -- that can be appealed.

There are -- you can -- you can -- there are processes for attempting to appeal single-judge orders.

Within every court of appeals, they have rules for that.

The difficulty here is that you have a pro se prisoner who thought he won.

He got something that was hard to get from a court of appeals judge and that's a certificate of appealability, and he did that by providing documentation of a substantial speedy trial claim, a speedy trial claim unlike this Court has ever seen, a 10-year gap between indictment and trial and then conviction on nothing but eyewitness testimony.

He documented that for the court, did everything he could.

And it isn't until this Court that the State says: Hang on; there was never any jurisdiction over this whole case.

They didn't tell the court of appeals judges that.

They didn't say anything until the case came to this Court.

And that type of trap--

Justice Samuel Alito: But is it necessary for you to go -- is it necessary for you to go as far as you seem to be going?

Would it be possible to read (c)(3) as mandatory but not jurisdictional?

Ms Millett: --That's--

Justice Samuel Alito: So if -- well, I understood what you just -- your argument to be that it doesn't even have any effect, that so long as there is any document that's called the certificate of appealability, then anything can be considered by the court of appeals panel without the issuance of a -- of a certificate of appealability covering the issue.

But if it's mandatory but not jurisdictional, then if the State moves or maybe if the court, if the panel sue sponte, identifies the fact that there may be an error, there is an opportunity for a new certificate of appealability.

If nothing is done, then -- then there isn't a problem.

It's not a jurisdictional issue that lingers forever.

Ms Millett: --No, I'm sorry if I misspoke.

I absolutely agree that it's mandatory and if timely raised must be dealt with.

I think it's an open question whether if it's not raised until you're actually before the panel, whether the panel then has to identify one of its judges to issue a certificate or it can simply in the course of its opinion say we've determined that this should go forward, even though the initial -- would you have to go through a formal amendment process?

Or you just do that as part of your decision?

I think either one will accomplish the same result and will comply with the statute, the functional gatekeeping requirement.

But the separate question which your question -- your comment leads to is that in looking at this, would Congress have wanted this gatekeeping function to be subject to perpetual review and revision, obligatory perpetual review by the panel?

You couldn't accept that your colleague found that there was a substantial question; all three judges would again have to revisit that and determine that it's substantial.

This was set up as a gatekeeping requirement and it was meant to be a -- a promotion of efficiency, not to cause more work, not to cause more paperwork, to sift out cases, identify the appeals that merit the time and resources of the court.

And once that's identified, the more efficient process is not to make the certificate of appealability a whole side show, a whole other layer of processing ping-ponging back and forth between this Court, courts of appeals; courts of appeals, single judges.

We simply -- we try -- we look at this and we determine that a judgment was made by a judicial officer sworn to uphold the law; a substantial showing was made.

And the fact that it wasn't written down as the statute likes is a problem; it should have been raised, but it wasn't raised, and we don't start all over.

Justice Antonin Scalia: --Ms. Millett, as I understand the State, the State is not contending that (c)(2) is jurisdictional, so you're -- you're arguing against a position they haven't taken.

They -- they don't say that there is no jurisdiction if in fact there has been no substantial showing, so that the court of appeals has to review that.

They are just saying that (c)(3) which describes the content of the -- of the certificate of appealability, is in effect jurisdictional.

Ms Millett: Right.

Justice Antonin Scalia: So I think you're -- you're exaggerating the consequence of what the State is urging us to hold here.

Ms Millett: Well I think this -- my point is that a substantial showing was made, so this Court doesn't even have to determine the status of (c)(2).

Justice Antonin Scalia: Right.

The State wouldn't go into that.

They're--

Justice Sonia Sotomayor: Counsel, before your time expires, I'd like to ask one question on the merits.

In Jimenez, we held that the most natural reading of 2244(d)(1)(A) is to read it like we read 2255.

And we read 2255 to say that finality is reached when direct review, and direct review concludes when the court affirms a conviction or denies a petition, or, if the defendant foregoes direct review, when the time for seeking such review expires.

Isn't that what the Fifth Circuit did--

Ms Millett: With--

Justice Sonia Sotomayor: --with 22 -- with 2244?

It read it exactly the way we read it in Jimenez?

Ms Millett: --No, I think -- in Jimenez is -- we are -- we are happy to take the language of Jimenez which--

Justice Sonia Sotomayor: I know, but you're not taking its holding.

Ms Millett: --I'm sorry?

Justice Sonia Sotomayor: You -- you take language from it.

Ms Millett: No--

Justice Sonia Sotomayor: But I read -- I read Jimenez to say that the court should be reading this alternative "or" language in exactly the way the Fifth Circuit did.

Ms Millett: --This Court said in Jimenez that the -- quote, I'm quoting here,

"the language points to the conclusion of direct appellate proceedings in State court. "

as -- end quote, as a -- as a moment of finality.

And that is the test that we are asking for.

The conclusion of direct appellate proceedings in State court in Texas is the issuance of the mandate.

Clay and Jimenez together prove our point.

Justice Sonia Sotomayor: Jimenez held that it's an either/or.

If you do direct review, you do it from the time that it's final, that it concludes; or if you've foregone direct review, when the time for seeking review expires.

Ms Millett: Two responses to that.

First, that simply begs the question that we're presenting in this case of when the direct review ended.

That's our argument in the case, is that prong.

When did that direct review prong end?

And the second -- the second aspect of this is to understand what happened in Jimenez.

The whole argument there was that you've got to -- by the State, was you're only -- you stopped -- remember, Jimenez had stopped at the intermediate court of appeals as well.

And the State's argument was you stopped at the intermediate court of appeals originally, so you are only in the expiration of review prong.

And this -- but then he went back 4 years later, I think it was, and got the court to reopen, started -- had a whole new direct review process going on.

And this Court said -- rejected the argument that because he didn't go to the intermediate court we don't look at the direct review prong, we only look at expiration or review prong.

We don't look at that.

We stop and we look to see is the State done.

And whichever those two prongs you're in, and it may depend on what time the question is asked, whichever prong you're in, the last -- the last of those will determine when your judgment becomes final.

Justice Elena Kagan: Well, Ms. Millett, let's take a look at the text of 2244(d)(1).

It says limitation shall run from the latest of.

And then it gives four dates essentially, four sections, each of which produces a date, A, B, C and D.

And A is the one that's concerned here.

And A says the date on which the judgment becomes final and then it gives two ways by which a judgment can become final.

And the two ways are basically you lose or you quit, right.

You lose or you abandon your process.

So, I just don't understand your argument, quite honestly, because it seems to me that A says the date, a single date, on which the judgment becomes final.

When is that going to happen?

Well, for some people it's going to happen when they lose and for other people it's going to happen when they quit.

Ms Millett: First of all, the language forks out again, and so it says the date on which the judgment becomes final, and then there is the two options for finality--

Justice Elena Kagan: Right.

Two ways for it to become final: They lose or they quit.

Ms Millett: --Well -- and the question in this case is how do we know when that -- that direct review process, what you're calling the lose prong, ends?

And it's when the State says: Done.

Because the of point of this is not an exhaustion prong.

The point 2244(d)(1) in particular, but 2244(d) generally, is to say, as the Court talked about, is the State done?

This supports Federalism.

Ex parte Johnson, a case that we cite, footnote 2, says until the mandate issues the appeal continues.

And so the notion--

Justice Elena Kagan: There's no suggestion in section (a) that there is ever going to be a conflict between these two ways of a judgment becoming final.

There is no suggestion that one is going to have to pick between them.

Subsection (a) is most naturally read -- again it says "the date" -- as there is just going to be one date.

And some people, the date of finality is going, you know, it becomes final because they lose.

Other people, it becomes final because they quit.

But subsection (a) suggests a single date, not two dates which you then have to choose between.

Ms Millett: --One, I don't think the text compels that one way or the other.

It says when does it become final.

And so let's ask the questions: When did the direct review conclude--

Justice Ruth Bader Ginsburg: But it does, it does suggest, Ms. Millett, that final, two ways -- conclusion of direct review is you've gone up the ladder and that's it.

And the second part is, well, if you don't go up the ladder you would stop.

Then when your time to go up the ladder has ended, that's it.

It -- it seems that there are those two possibilities, as Justice Kagan put it so well: You lose or you quit.

Ms Millett: --And the issue is -- and I hate to call it the "lose prong" -- but when did he lose?

When did the State say, we are done and we've decided this case is over, this appeal is over?

And that was when the mandate issued.

This is only about when that prong happened.

And because you can have--

Justice Ruth Bader Ginsburg: So you would have a difference between 2255 and 2254.

And on the State level you would have a variety of times, because some States, they don't all make it the mandate.

They don't set finality as mandated.

There may be different -- there may be different periods of time before the mandate issues.

So you would have various time periods for State prisoners.

But if you were a Federal prisoner, then you would have -- this would be the one--

Ms Millett: --No.

You would have the exact same test.

The answer is easier in the Federal system, because when direct review is concluded -- this Court said in Clay, look, if all we had to look at was conclusion of direct review -- it didn't say we didn't know it -- there would be no conclusion, because of the mandate.

Justice Ruth Bader Ginsburg: --I'm not talking about test.

I'm talking about time periods.

There's a uniform time period on a 2255 petition.

It would not be a uniform time period for 2254 petitions.

Ms Millett: That's a result -- but that's already a result of Jimenez, which had this whole reopening process that I -- unless the Federal system were to do that, there is -- as this Court noted in Wall v. Kholi, you can have discretionary applications that can be called direct review as well.

Direct review is not the linear process that is tried to be portrayed here.

And the time ultimately is the same.

What happened in Clay -- these things are equivalent.

You have the same test.

Sometimes the outcome is different based on what the individual does and what the State law allows, but you have -- this is supposed to protect Federalism.

And the only way to protect Federalism and comity interests is to respect when the State says it's done.

To have the Federal law tell them you're done and to start the statute of limitations ruling when State law is saying we are not done, the appeal continues and do not start your State post-conviction relief, is to put Federal law at loggerheads with the State law it's supposed to be respecting.

I'd like to reserve the balance of my time.

Justice Antonin Scalia: --Where -- where is 2244(d)(1)?

I looked in your brief.

Ms Millett: 2244(d)(1) is attached to the appendix.

Justice Antonin Scalia: To the petition for cert?

Ms Millett: Petition for cert.--

Justice Antonin Scalia: Why isn't it in your brief?

I mean, it's what your brief's about.

Why isn't it in the appendix of your brief.

It's also not in the appendix of the government's brief.

It's also not in the appendix of the state's brief.

I have to go back to the petition to get it.

I mean it's what we are talking about here.

I don't understand why the text is not in your brief.

Ms Millett: --I apologize for the inconvenience, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Mitchell.

ORAL ARGUMENT OF JONATHAN F. MITCHELL ON BEHALF OF THE RESPONDENT

Mr. Mitchell: Mr. Chief Justice and may it please the Court:

The Fifth Circuit lacked jurisdiction to review the district court's dismissal of Mr. Gonzalez's habeas petition, because the document issued by the circuit judge in this case fails to qualify as to required certificate of appealability under 2253(c)(1).

Justice Kagan asked my opponent how one should determine whether a document counts as a certificate of appealability.

The answer is found in Section 2253(c)(3).

A certificate of appealability under paragraph one shall indicate which specific issue or issues satisfies the substantial showing requirement in paragraph (c)(2).

Chief Justice John G. Roberts: You agree with your friend that the only fault here was on the part of the judge and not the Petitioner.

Mr. Mitchell: We agree that the judge is at fault.

The Petitioner did mention in his application for a COA his speedy trial claim, so I don't believe we can fault Mr. Gonzalez for the way he applied for a COA.

But at the same time, Mr. Chief Justice, Mr. Gonzalez if he had the opportunity to qualify for a COA under 2253 should have the opportunity to seek a new COA, if this Court were to conclude that (c)(3)--

Justice Stephen G. Breyer: What are we arguing about?

It's a -- should have filled in the blank and said is a speedy trial action here and he didn't.

The judge didn't.

He should have done it, he didn't.

So now I'm the Court of Appeals judge, I get this and I say oh, my God, he forgot to fill in the right number.

I'll tell you what, I'll fill it in and I'll sign my name.

Is that legal?

Mr. Mitchell: --If the Court of Appeals judge does it?

Justice Stephen G. Breyer: The judge, in the Court of Appeals.

I have the case, and I say oh, my God.

I've read the appendix.

I don't always read appendices, but sometimes I do.

And I know this is blank here and it's suppose to say speedy trial.

And so I get out my pen and I say Speedy Trial Act, SB, sign it, okay.

Now, is everything okay?

Mr. Mitchell: If he does that before the Court of Appeals issues its judgment, we believe that's permissible under the statute.

Justice Stephen G. Breyer: All right.

So what are we arguing about?

Why not just say look, this is like the Copy Write Act registration requirement.

I mean, it's not jurisdictional, in the sense that the court has to look through all these appendices itself to see that everything is perfect.

It's just something you should do.

And if you didn't do it, then in an appropriate case the judge didn't do it himself or waive it or whatever makes sense in this circumstances.

What's wrong with that?

Mr. Mitchell: Well, the problem in this case, the Court of Appeals did not do that.

They entered judgment without a valid certificate--

Justice Stephen G. Breyer: So they entered judgment without it.

We will assume, nunc pro tunc, they didn't.

Mr. Mitchell: --Okay, because Mr. Gonzalez--

Justice Stephen G. Breyer: What is the horrible thing about that?

Mr. Mitchell: --Mr. Gonzalez can't qualify for a COA under the standards this Court has set forth in Slack and Miller-El.

Because the speedy trial claim encounters an insurmountable procedural obstacle.

This is precisely the type of case that 2253 and Slack and Miller-El are designed to keep out of the Federal appellate court.

Justice Antonin Scalia: Mr. Mitchell, do you think the Federal Court of Appeals could do it nunc pro tunc without first making the determination that the trial judge was supposed to have made it?

Mr. Mitchell: A circuit judge can issue a COA under the statute.

Justice Antonin Scalia: But he would have to make the determination required by (c)(1), no?

Mr. Mitchell: You would have to make the determination, yes.

Justice Antonin Scalia: Yes.

Mr. Mitchell: But, the question--

Justice Antonin Scalia: And that wouldn't necessarily point him just to the Speedy Trial Act.

He would have to see what other Constitutional claims are in the case.

Mr. Mitchell: --That's correct and often the courts of appeal will have their own circuit rules that govern how litigants should seek certificate of appealability.

Justice Stephen G. Breyer: You tell me.

This is a statute that the purpose of which was to speed things up, which was to help courts of appeals by eliminating drawls while focusing on issues that really do have constitutional issues.

Now suddenly what's worrying me, and I don't have the definite answer, is if I adopt your interpretation, this is jurisdictional, I am somehow increasing the workload of the courts of appeals because they will have to have staff people going through to see whether every i is dotted and every t crossed and they did have all the right things there, and the pain of doing that is if you don't do it, then you have to do these things over again, and it will be too late, people get another lawsuit.

Mr. Mitchell: But at the same time any other appeals that should not have been taken will be cut off at the district court as they should be.

Justice Sonia Sotomayor: Counsel, are you accepting Justice Scalia's point that the certificate of appealability doesn't have to jurisdictionally describe the substantial constitutional issue?

Mr. Mitchell: No, it must describe the constitutional issue--

Justice Sonia Sotomayor: So you agreed with the question he posed to your adversary, that you are saying that this was deficient because both, it didn't indicate the issue, and because it didn't describe the substantial constitutional question?

Mr. Mitchell: --Our contention is that a certificate of appealability must indicate a specific constitutional claim under C(3) to qualify as a certificate of appealability under C(1).

Justice Elena Kagan: General Mitchell, but you that C(2) is not jurisdictional, is that correct?

You say that C(1) and C(3) are but C(2) is not?

Mr. Mitchell: That's correct.

Justice Elena Kagan: If that's right, why?

Mr. Mitchell: C(2) is phrased differently from C(3).

C(3) describes the essential content of what a certificate of appealability must contain.

C(2) by contrast simply says that a certificate of appealability may issue under paragraph 1 only if the applicant has made a substantial showing of the denial of a constitutional right.

It's defining the conditions under which a COA may issue.

A wrongly issued COA is not necessarily one that is patently defective so that it no longer deserves the title of certificate of appealability.

Justice Elena Kagan: But C(3) says: Shall indicate which specific issues satisfy the showing required by C(2).

It just seems as if all of these are a little bit of a piece and, you know, you can stop it at 1 or you can go on to 2 and 3.

But it seems to me sort of hard to make the jump here and leave 2 out of it.

Mr. Mitchell: Well, perhaps analogy from other areas of appellate jurisdiction -- sometimes a district court may issue a final judgment for the wrong party.

Perhaps he entered summary judgment and he shouldn't.

That final judgment may be erroneous, it may be wrongly issued, but it doesn't mean it deprives the appellate court of jurisdiction to review what the district court did.

And we--

Justice Ruth Bader Ginsburg: Can we back up and tell me why the statute we are dealing with 2253, why does jurisdictional, if jurisdiction means, as we have said, that class of cases that the Court is competent to hear.

So I look at 2254.

That's State habeus.

Mr. Mitchell: --Right.

Justice Ruth Bader Ginsburg: Federal petition by a State prisoner.

And 2255 is a petition by Federal prisoner.

So those are the classifications.

The classifications are habeas cases, 54 state prisoners, 55, Federal prisoners.

Mr. Mitchell: Yes.

Justice Ruth Bader Ginsburg: 2253, it seems to me, is a processing rule that applies to both categories.

It applies to 54 and it applies to 55, but the classes of cases identified in 54 and 55.

So I would write 2253 as a mandatory processing but not, not a rule that tells us what class of cases the Court is competent to hear.

Mr. Mitchell: Well, 2253(a) reads as though it's a grant of appellate jurisdiction.

It says that in either the habeas corpus proceeding or in a 2255, the final order shall be subject to review on appeal by the court of appeals.

It doesn't mention the word jurisdiction but it's phrased in the way that is, seems as though it's conferring appellate jurisdiction in cases where a habeas petition or a 2255 motion precedes the finality in the district court.

Justice Ruth Bader Ginsburg: So is it doubles the -- 2254 is jurisdictional; 2255 and then 2253, which tells how you are to proceed under either one of those, is not simply a mandatory how you do it but jurisdictional.

Mr. Mitchell: Right, 2253(a) is the provision that establishes appellate jurisdiction in habeas cases.

And then subsections (b) and (c) narrow that jurisdictional ground and define the conditions under which a litigant cannot take an appeal and in which cases the court of appeals cannot exercise appellate jurisdiction.

This Court also has held in Miller-El that the issuance of certificate of appealability is a jurisdictional prerequisite to an appeal.

And in holding that, it relied on a long history of treating both the COA and the earlier certificate of probable cause.

Justice Ruth Bader Ginsburg: The feature of this case that I think is very unsettling is there is an issue for the court of appeals to decide.

It's the timeliness issue.

The court of appeals could not decide the speedy trial.

If the -- if this case were to fail because the trial judge didn't identify the speedy-trial issue, when the court of appeals in no way could reach that issue in this case, isn't that something only a, a distinction only a lawyer could love?

Mr. Mitchell: Well, we view the purpose of 2253(c) as keeping cases out of the courts of appeals when habeas petitioners have no chance of obtaining ultimate habeas relief.

It's designed to keep out petitions that may present interesting statute of limitations issues but--

Justice Ruth Bader Ginsburg: If you say -- if you say that, here's Judge Gaza, and he says: Yes, there's a statute of limitations question here.

It has to be decided before we get to the speedy trial.

But if the judge felt that the speedy trial issue was not meritorious, then why would he grant a certificate of appealability on the threshold question that you'd have to decide before?

Because it seems to me it would be a waste of everyone's time if the judge thought that the speedy trial issue had no merit.

Mr. Mitchell: --He can't grant the COA under Slack.

If the constitutional claim has no merit then--

Justice Elena Kagan: But then presume, General Mitchell, that he thinks that it does but he just forgot to write down speedy trial.

And the question is: Why that forgetting to write down speedy trial should make a difference here given that as Justice Ginsburg said, in any event the court of appeals couldn't reach it because of the procedural issue that it had to reach first.

Mr. Mitchell: --Well the first problem is the speedy trial in this case encounters a procedural bar.

If we put that to one side--

Justice Sonia Sotomayor: Put that to one side.

Mr. Mitchell: --And assume that this were a case where he had a substantial Constitutional claim and the circuit judge simply forgot to write it down, the statute requires that the Constitutional claim has to be indicated in writing in the certificate.

That first--

Justice Sonia Sotomayor: Counsel, I'm a little confused, okay?

And I think it's what Justice Ginsburg was trying to get at, and Justice Breyer, which is: What you are requiring in you're saying the statute requires, if for the district court to always reach the merits of any argument presented in a habeas petition, to figure out whether it's a substantial argument before it dismisses on a procedural ground.

Mr. Mitchell: --He doesn't have to--

Justice Sonia Sotomayor: And that seems to be what you're, you're wanting to happen because a judge would have to say: I'm dismissing on a procedural ground and I believe that the claim is more than non-frivolous, that it has a substantial basis.

Mr. Mitchell: --He doesn't have to--

Justice Sonia Sotomayor: Doesn't that speed the habeas process in the normal cases?

I mean, in my experience, what district court judges do is find the easiest way to dismiss something.

If the speedy trial ground is the easiest, they go that way.

I'm sorry.

If it's not and it's a procedural bar, they use a procedural bar.

They don't create extra work for themselves.

Mr. Mitchell: --Right.

He doesn't have to decide the merits of the speedy trial claim.

He just needs to take a peek at the constitutional claim and see if it has some chance of being substantial.

And if it encounters a procedural bar, as it does in this case, because Mr. Gonzalez never sought direct review in the Texas court of criminal appeals--

Justice Sonia Sotomayor: So what do we do then--

Chief Justice John G. Roberts: Maybe it's a good time.

You're a bit more than halfway through your argument.

Maybe it's a good time to switch to the merits.

Mr. Mitchell: --Thanks.

On a statute of limitations question, this case turns on the meaning of section 2244(d)(1)(A) which first establishes the date on which the conviction, the judgment became final as a potential starting point for the one-year limitations period and then establishes two prongs for determining when that date of finality occurs.

Finality under the statute can occur either at the conclusion of direct review or it can occur at the expiration of time for seeking such review.

And Fifth Circuit correctly held that the conclusion of direct review prong applies only when the habeas applicant pursues direct review to its natural conclusion, by obtaining either a judgment or a denial of certiorari from the Supreme Court of the United States.

The expiration of time prong should govern all other cases, those in which the habeas applicant allows the time for seeking direct review to expire before reaching this Court.

Justice Elena Kagan: General, it seems to me that Ms. Millett's best argument is an argument just about the oddity of what would happen if we adopt your construction of the statute, which is that the time begins to run before a habeas petitioner actually can file a State habeas petition, and whether that's so odd as to make this a -- a wrong way to construe the statute.

Mr. Mitchell: In some cases, that will happen.

There will be habeas petitioners who have concluded their direct review process, or they've, in this case, they have allowed the time to expire.

But the statute of limitations will start running for Federal habeas, yet they won't be able to quite yet go to State court.

But--

Justice Ruth Bader Ginsburg: In -- in this very case, that was so, right?

Because the -- the period for discretionary review expired in August.

Mr. Mitchell: --Yes.

Justice Ruth Bader Ginsburg: And the mandate issued September -- some date in September.

Mr. Mitchell: Right.

Justice Ruth Bader Ginsburg: So there could be no State habeas until the mandate issued.

So the days in between would count against the defendant on the speedy trial clock -- even though he would -- could not have filed a State habeas; he could not have stopped the clock by filing a State habeas.

Mr. Mitchell: That's correct.

And it's only a 45-day window or so in this particular case.

And in most cases, it should only be a few weeks or months.

No one is going to lose their entire one-year clock waiting for their ability to seek State post-conviction review to begin.

Justice Sonia Sotomayor: --What happens if it happens?

Mr. Mitchell: Well, if that were to happen, then the prisoner should file a protective habeas petition under Rhines v. Weber.

He should file it in Federal district court and then ask the district judge to use the stay-and-abeyance procedure that this Court used in Rhines, and then wait for his opportunity to seek State post-conviction review and return to Federal court.

Justice Sonia Sotomayor: Does that -- does that make any sense?

Isn't it easier to read it -- the statute the way your adversary suggests, which would protect both the right to direct review and the right to collateral review?

Mr. Mitchell: Well, the Fifth Circuit has had this regime now for almost 8 years, since Roberts was decided.

And as far as we know, no habeas petitioner has had to file a protected habeas petition.

And even if it occasionally will happen, it's not much different than what we currently deal with on mixed petitions, when a habeas petitioner needs to use the stay-and-abeyance mechanism in Rhines.

One other point back on jurisdiction.

It's important that we emphasize we asked for this Court to vacate and remand with instructions to dismiss the appeal, but the only reason we requested a dismissal of the appeal is because Mr. Gonzalez should not get a certificate of appealability under the standards of Slack and Miller-El.

If there are other habeas applicants who are victims of (c)(3) errors committed by circuit judges, and that error is discovered later in the appellate process, the proper remedy should be normally to allow that habeas applicant to seek a new certificate of appealability--

Justice Stephen G. Breyer: Well, why then -- I mean, you can read the statute differently.

You can say I'm now the court of appeals judge.

I look at it.

Lo and behold, there are two blanks.

But on the basis of what I read in the briefs and the record, I can say that the appellant has made a substantial showing of a denial of a constitutional right.

I know the record, and he has these things there.

And also, I know what they are.

Okay?

So I fill in the blanks, or the chief judge of the circuit fills in the blanks, with the panel's approval.

Now, the only reason for doing that is that it saves everybody a lot of time, and it costs nobody anything.

So -- so why not, since the language permits it, do that?

Mr. Mitchell: --Because it would also -- Your Honor's proposal would allow habeas applicants such as Mr. Gonzalez to take appeals when the statute precludes them from taking them.

And--

Justice Stephen G. Breyer: But no, you're giving the conclusion.

I've just said the statute doesn't.

They can take the appeal and they are not going to get anywhere because of this error of the lower court judge unless the court of appeals, having looked at the record a little bit, discovers that there is a substantial constitutional question and they know what it is, and then they fill in the blanks.

Mr. Mitchell: --It doesn't necessarily--

Justice Stephen G. Breyer: And then the language -- it allows that, I believe -- and the purpose would allow it, for after all, the purpose is to be more efficient, not less efficient.

And I can't think of any harm that's done reading it that way.

So you tell me what is the harm that's done.

Mr. Mitchell: --Several harms.

One of the functions of 2253(c) is to protect the habeas applicants who have substantial constitutional claims, and avoid their habeas petitions from being crowded out in a sea of meritless petitions, all of which can go up on appeal--

Justice Stephen G. Breyer: They really can't.

I'd have to be able to fill in those blanks, or goodbye.

So it doesn't get any meritless ones up there.

The only ones that come up are merit -- merited.

Mr. Mitchell: --Well, it would have to be both merited and also not encounter an insurmountable procedural obstacle, which is the problem that plagues Mr. Gonzalez.

Justice Stephen G. Breyer: Well, if there is an insurmountable obstacle -- although, as in this case perhaps we don't reach the constitutional issue -- there is one there, so it is appealable, but we say we do not reach it because there is this impossible procedural obstacle that here blocks it.

There we have a system that seems more efficient, and seems what is being argued, and all we have to do is say this is not a jurisdictional requirement in (2) or (3), and there we have it.

What's wrong with that?

Mr. Mitchell: If States are allowed to waive (c)(3), it will open opportunities for gamesmanship.

For example, a State lawyers could decide whether to invoke (c)(3) based on the strength of opposing counsel.

I see my time has expired.

Thank you.

Chief Justice John G. Roberts: Do you want to finish your sentence?

Mr. Mitchell: We ask the Court to vacate and remand, or in the alternative, affirm.

Thank you.

Chief Justice John G. Roberts: That's a different sentence.

[Laughter]

Ms. O'Connell.

ORAL ARGUMENT OF ANN O'CONNELL ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

Ms O'Connell: Mr. Chief--

Justice Sonia Sotomayor: Do you have any idea of how much the jurisdictional question plagues the courts below?

Meaning, is it -- is it so complicated that people below don't really know what district courts are granting COAs on?

Do -- circuit courts don't understand what the issues are somehow by the opinion below?

Ms O'Connell: --No.

I think that the -- the court of appeals in this case understood exactly what the issue was.

In footnote one of its opinion, it said the petitioner has briefed these four other -- these four constitutional claims in addition to the procedural claim that was in the certificate of appealability.

A COA was not granted on any of those issues, so we don't have jurisdiction to consider them.

Nobody has made a determination in this case that there is a single constitutional issue that could potentially warrant habeas relief for Petitioner.

I don't think it's a matter of the courts being confused.

It's a matter of what the -- what the statute is trying to do is getting everybody to focus up front on why this case should go forward in the court of appeals--

Justice Ruth Bader Ginsburg: So if someone on the court of appeals noticed that yes, the certificate pinpoints the only case, only question that the panel can decide at this juncture, but there is a lurking constitutional question, then isn't 28 U.S.C. 1653 exactly what the panel would do then, is 1653 says that detective jurisdictional allegations can be amended in the trial or the appellate court.

And so all that would have had to have happened is very much in line with Justice Breyer's questions, is that the judge on the panel said oh, certificate of appealability didn't make it a speedy trial issue.

So counsel, would you like to amend, or we on our own will amend to put that question in?

Ms O'Connell: --That could certainly happen.

There should be a presumption -- if the court of appeals amended the certificate of appealability, an appeal could go forward on that issue.

That didn't happen in this case.

Justice Ruth Bader Ginsburg: Well, the appeal couldn't go forward on that issue, because that issue hasn't been decided below.

One thing we know is with speedy trial issues, the case cannot go forward on the speedy trial issue.

Isn't that right?

Ms O'Connell: Justice Ginsburg, I don't -- I think that, first of all, I don't think that's right.

just because the district court kicked this case out on a procedural issue doesn't mean that the court of appeals couldn't reach the substantive issue if it reversed the procedural issue.

Justice Ruth Bader Ginsburg: Then how common is it for courts of appeals to reach substantive issues in the first instance?

There's no decision of the district court.

Ms O'Connell: Well, it certainly could send it back.

But if that issue was briefed, and if it was briefed again in the court of appeals -- the court of appeals certainly could decide it.

There's no bar to the court of appeals--

Justice Ruth Bader Ginsburg: Wouldn't -- wouldn't the most sensible procedure be -- let's forget the efficacies of 2244 and 53, but you -- you have a case where there is a statute of limitations question and that has come up for review.

Wouldn't the court of appeals 99 out of 100 times say now the substantive -- since we have decided that the case is timely, this is district court's function to resolve the substantive issue?

Ms O'Connell: --Even if the court of appeals would normally do that, this Court said in Slack that if the court of appeals -- or if the district court kicks the case out on a procedural ground, the certificate of appealability has to indicate at least that the procedural issue is debatable and also that a constitutional issue in the case is debatable.

Nobody has ever made that determination in this case.

If -- if a court of appeals judge would have noticed it and -- and reissued a new certificate that certified that constitutional question, that would be fine, and the case could go forward, but if this--

Chief Justice John G. Roberts: But if a court of appeals -- if a court of appeals judge can do that, can we do that?

Ms O'Connell: --This Court could do that.

Section 2253(c)(1) gives circuit justices the authority to issue amended certificates of appealability.

Chief Justice John G. Roberts: You read -- you read that to be any circuit justice, or only the circuit justice from the circuit in which the case comes from?

Ms O'Connell: Well, the court has procedures in place where like, an application for a certificate of appealability would normally go to the circuit justice, and then I suppose could be referred to the Court.

Justice Stephen G. Breyer: It doesn't say that--

Ms O'Connell: Well, but this Court's procedures indicate that.

I think that under the statute, sure, any circuit justice could issue a certificate of appealability.

That might--

Justice Sonia Sotomayor: Circuit judge -- or circuit judge or judge.

Ms O'Connell: --A circuit justice or judge.

Justice Sonia Sotomayor: Yes.

Ms O'Connell: Right.

Justice Stephen G. Breyer: --So I could just sign this tomorrow and that would moot this case and get rid of it.

[Laughter]

Ms O'Connell: I don't think so.

Chief Justice John G. Roberts: No.

Because Justice Breyer is not the circuit justice for the Fifth Circuit.

Ms O'Connell: Under this Court's procedures the application I think would have to go to Justice Scalia--

Justice Antonin Scalia: Right.

[Laughter]

Ms O'Connell: --and then come back.

Justice Antonin Scalia: So there !

Ms O'Connell: However, even if this Court were to issue a certificate of appealability, if the -- if the Court determined that there was actually a debatable constitutional issue in this case, which no Federal judge has done to this point, I don't think that it could still reach the procedural issue that's presented in the second question.

The court of appeals didn't have jurisdiction to issue a decision on that, on that question; so the only remedy would be for this Court to vacate that opinion and either send it back with an order to dismiss, if it didn't think there was a debatable constitutional issue, or let the court of appeals reissue its opinion or redecide the case how it wants to.

I don't think the Court should issue a certificate of appealability in this case.

Because it has to go back anyway, it makes more sense to let the court of appeals tell us if -- if what they thought is that there was a debatable constitutional issue here on the speedy trial claim.

It's not clear at all that they did think that.

Footnote a of their opinion says they -- the Petitioner briefed the speedy trial claim but we don't have jurisdiction to consider it.

Justice Elena Kagan: Ms.--

Ms O'Connell: It indicates that -- that they didn't think that the speedy trial claim was implicitly included in the certificate of appealability.

Justice Elena Kagan: --Ms. O'Connell, could I just clarify your argument?

You disagree with the State of Texas, isn't that right?

Because you think (c)(1), (c)(2) and (c)(3) are all jurisdictional; is that correct?

Ms O'Connell: That's right.

Justice Elena Kagan: So, I mean, (c)(2) is -- it appears to be a substantive inquiry jurisdictional, that in any case the court is going to have to make this -- is going to have to ask itself whether a substantial showing of the denial of a constitutional right has been made, and that would seem to be a very odd thing to do for jurisdictional purposes.

Ms O'Connell: I -- I don't think it is, Justice Kagan.

It's no different than under section 1331, a court would have to take a peek at the merits to see if there is a -- a Federal question in the case before letting it move forward.

It's just looking at what the class of cases is that section 2253--

Justice Elena Kagan: But in most cases the Federal question inquiry is just look, I'm looking at your complaint; do you cite a Federal statute?

Do you cite a Federal constitutional provision?

If so, there's a Federal question in the case.

What (c)(2) says is have you made a substantial showing of the denial of a constitutional right?

That's a very different inquiry.

Ms O'Connell: --It is, and -- and once a -- a judge issues a certificate of appealability on that question it should be presumed that it's been satisfied.

What we are saying in -- when we say that (c)(2) is jurisdictional is that if it becomes--

Justice Elena Kagan: Well is it a jurisdictional rule that we're -- rule that we're going to presume that it's been satisfied?

That's a sort of odd thing to do for jurisdictional rules.

Right?

Jurisdictional rules, we sua sponte have to look at them and we have to be serious about them.

Ms O'Connell: --Yes.

But if a -- if a district judge or a court of appeals judge has made a determination that there's a constitutional issue that's debatable, going forward that seems to be something that would be extremely hard to overturn.

Justice Samuel Alito: So if the panel looks at the merits of constitutional issue, as to which there is a reference in the certificate of appealability when it -- when it writes its opinion it first has to ask itself, was there a substantial showing?

And if there wasn't, then it will say we'll dismiss this claim.

And then -- but if it says well, there was a substantial showing but it's wrong, then we'll affirm.

Is that -- is that right?

Ms O'Connell: I mean.

I think that could happen.

In most cases it's not going to be an issue.

If somebody certified that it's debatable, then somebody has made that showing.

If it turns out -- like for example, if there was, if the Petitioner had said my right to testify at trial was violated; they wouldn't let me testify; and then that issue is certified and then it turns out when it gets to the merits panel that he did in fact testify and it was a totally frivolous claim -- yes, I think that the court of appeals should dismiss the case at that point for lack of jurisdiction.

Justice Elena Kagan: Then let's go on to (c)(3), because (c)(3) seems to be just a documentation requirement.

In other words, let's presume that (c)(2) has been satisfied; there was a substantial showing made; and there is a documentation error and (c) -- under (c)(3).

Why should that be jurisdictional?

As sort of -- you know, there has been a substantial showing made.

There is a documentation error.

It's an error that the habeas Petitioner has absolutely no control over.

Why should we view that as a jurisdictional bar?

Ms O'Connell: Justice Kagan, I think it's because we don't actually know that a substantial showing has been made until a Federal judge tells us that.

We could -- you know you could assume that a substantial showing was made.

It's not clear that -- that Judge Garza that or that any judge on the court of appeals thought that.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Millett, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER

Ms Millett: Thank you, Mr. Chief Justice.

Justice Kagan, the question is whether State prisoners now should be worse off than Federal prisoners.

It is not some prisoners that will fall in this gap.

It is 99 plus percent of prisoners; because in Texas -- in Texas only about 1 percent file discretionary petitions for review.

Far less than that -- 99.7, 99.8 percent do not seek cert on direct review from this Court.

So we are now in some backwards world where we -- Clay is going to drive the rule for Federal prisoners, is going to--

Justice Elena Kagan: I don't understand that, Miss Millett.

I mean the situation in this case is presented because the Petitioner here didn't seek review in the highest State court.

The situation is not presented because the Petitioner did not file a cert petition.

Ms Millett: --Well, the question is what one means by the so-called natural conclusion of direct review.

Now statistically, this is a statutory provision written for State prisoners by Congress, to address State prisoners; and if the natural thing that happens in the world is 99 percent do not even seek review in the State's highest court.

And I'm extrapolating from Texas; I don't know all 50 States but I have no reason to think that's anomalous.

99 percent don't file petitions for discretionary review.

What kind -- why would Congress have written this statute in a way that's going to create a gap, that is going to cause prisoners who wouldn't otherwise file to now file?

Instead of 2000, they are now going to have 102,000 petitions for discretionary review, and the Texas courts--

Justice Elena Kagan: Let me make sure I understand you.

You're saying 99 percent don't file petitions in Texas's highest court?

Ms Millett: --Correct.

Correct.

And I'm -- this is -- the Texas judicial reports are -- are available on line that record this.

I'm -- I'm looking at the number of petitions each year.

Roughly the last 3 years, in the 2000-ish range.

Convictions in the State.

More than 100,000 range.

And so--

Justice Samuel Alito: You're saying 99 percent of the -- of the defendants who take an appeal through the Texas system don't file a petition with the Texas Court of Criminal Appeals?

Or is it 99 percent of those who don't do that and then file a Federal habeas petition?

I would imagine it's the former, right?

Ms Millett: --I'm talking about the former.

But the point--

Justice Samuel Alito: Yes.

Ms Millett: --The point is, that--

Justice Elena Kagan: The argument is that under habeas review these petitioners are not going to be in good shape, right?

They are going to have their claims unexhausted or defaulted?

Ms Millett: --They -- they may or may not.

As we pointed out in the Kinsey case, the Texas Court of -- the Texas courts have actually entertained a speedy trial claim in -- at both levels.

It was raised on direct review and then it wasn't -- but -- right.

It was also -- they have raised in both forums.

So it casts some doubt on the procedural default argument advanced here, but you're right.

Of course there -- there are issues here, but the question is whether Congress wanted a gap.

In Johnson v. United States, this Court construed 2255, I think it was subsection 4 there, the one on -- if a conviction is overturned it was used to enhance.

And then what is the timing to come back and file a habeas claim to change your sentence that relied on a now-vacated prior conviction.

And this Court said we are not going to construe this language to create a gap between when the -- when the finality attaches and when the time that you can actually file for post-conviction review commences.

The whole point of this, of 2244, was to respect State processes.

It's not another exhaustion requirement; it's respect the State.

And Texas couldn't be clear; in ex parte Johnson footnote 2, it says the appeal continues -- sorry, may I finish the sentence?

The appeal continues until the mandate issues.

Federal law shouldn't change that.

Chief Justice John G. Roberts: I just have a -- I don't understand the 99 percent figure.

That includes people who entered a plea bargain and presumably gave up the right to appeal?

Ms Millett: It's 99 percent of -- the way--

Chief Justice John G. Roberts: So 99 percent of the convictions that were entered.

So that would include all the plea bargains; those people obviously didn't appeal, is what--

Ms Millett: --Some of them did.

Mr. Jimenez was a plea bargain.

Some of them do.

Chief Justice John G. Roberts: --Okay.

Thank you, counsel, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: We have opinions this morning beginning with the opinion by Justice Sotomayor in case 10-895, Gonzalez versus Phelan.

Justice Sonia Sotomayor: Petitioner Gonzalez was convicted in Texas state court.

After the intermediate state appellate court affirmed his conviction, Gonzalez allowed his time for seeking review with the State's highest court for criminal appeals to expire.

The intermediate state appellate court, however, did not issue its mandate until roughly six weeks later.

When Gonzalez later filed a federal habeas petition, the District Court dismissed Gonzalez's petition as time barred by the one year statute of limitations in the Antiterrorism and Effective Death Penalty Act, AEDPA, it's easier to say that, of 1996.

The District Court so held based on its determination that Gonzalez's judgment had become final when his time for seeking review in the State's highest court expired not when the intermediate state court issued its mandate.

Gonzalez then sought a certificate of appealability, known as COA, to appeal the District Court's order.

A Sixth Circuit judge granted Gonzalez a COA on the timeliness issue.

The COA, however, failed to indicate a constitutional issue.

The Fifth Circuit affirmed.

It agreed with the District Court that Gonzalez's petition was time barred.

The Fifth Circuit did not mention and the State did not raise any defect in the COA.

When Gonzalez petitioned this Court for review, the State argued for the first time that the Fifth Circuit lacked jurisdiction to adjudicate the appeal based on a defect in the COA.

This case requires us to interpret two provisions of AEDPA.

The first provision, 28 U.S.C. 2253(c)(3) requires that the COA “shall indicate which specific issue” on which the petitioner has made a substantial showing of the denial of a constitutional right.

For the reasons we explain in our opinion filed today, we hold that 2253(c)(3) is a mandatory, but nonjurisdictional requirement.

Accordingly, a judge's failure to indicate the requisite constitutional issue in a COA does not deprive a Court of Appeals of subject matter jurisdiction to adjudicate the habeas petitioner's appeal.

The second provision, 28 U.S.C. 2244(d)(1)(A) establishes a one year limitations period for state prisoners to file federal habeas petitions running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."

As explained in our opinion, we hold that for a state prisoner who does not seek review in the State's highest court, the judgment becomes final on the date that the time for seeking such review expires.

Accordingly, Gonzalez's judgment became final on the date that his time for seeking review in the State's highest court for criminal appeals expired.

Gonzalez's federal habeas petition was therefore untimely.

The judgment of the Court of Appeals for the Fifth Circuit is affirmed.

Justice Scalia has filed dissenting opinion.