PLILER, WARDEN v. FORD

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Syllabus
PLILER, WARDEN v. FORD
certiorari to the united states court of appeals for
the ninth circuit
No. 03–221. Argued April 26, 2004—Decided June 21, 2004
Five days before the 1-year statute of limitations under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) would have run, re-
spondent filed two pro se “mixed” federal habeas petitions—those con-
taining both unexhausted and exhausted claims—and motions to stay
the petitions while he returned to state court to exhaust the unex-
hausted claims. The Magistrate Judge gave him three options: (1) The
petitions could be dismissed without prejudice and respondent could re-
file after exhausting the unexhausted claims; (2) the unexhausted claims
could be dismissed and he could proceed with only the exhausted claims;
or (3) he could contest the Magistrate Judge’s finding that some claims
were unexhausted. He chose the first option with respect to one peti-
tion and failed to respond with respect to the other. The Federal Dis-
trict Court dismissed his petitions without prejudice. He then filed ha-
beas petitions in the California Supreme Court, which were both denied.
The federal court dismissed his subsequently refiled pro se habeas peti-
tions with prejudice as untimely under AEDPA, see 28 U. S. C. § 2244(d),
and denied him a certificate of appealability (COA). The Ninth Circuit
granted a COA, concluding that his initial petitions were timely under
§ 2244(d) and that his later petitions related back to the initial ones.
The Ninth Circuit determined that although the District Court correctly
concluded that it did not have discretion to stay respondent’s mixed
petitions, it could have acted on his stay motions had he chosen the
Magistrate Judge’s second option and then renewed the prematurely
filed stay motions. It also held that the District Court had to give
respondent two specific warnings: first, that it could not consider his
motions to stay the mixed petitions unless he chose to amend them and
dismiss the then-unexhausted claims; and second, if applicable, that his
federal claims would be time barred, absent cause for equitable tolling,
upon his return to federal court if he opted to dismiss the petitions
without prejudice and return to state court to exhaust all his claims.
Held: The District Court was not required to provide the warnings di-
rected by the Ninth Circuit. Pp. 230–234.
(a) Federal district courts must dismiss “mixed” habeas petitions.
Rose v. Lundy, 455 U. S. 509, 522. The combined effect of Rose and

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226 PLILER v. FORD
Syllabus
AEDPA’s limitations period is that if a petitioner comes to federal court
with a mixed petition toward the end of the limitations period, a dis-
missal of his mixed petition could result in the loss of all his claims—
including those already exhausted—because the limitations period could
expire during the time he returns to state court to exhaust his unex-
hausted claims. To address this, the Ninth Circuit allows a district
court to employ a stay-and-abeyance procedure, which involves
(1) dismissal of any unexhausted claims from the original mixed habeas
petition; (2) a stay of the remaining claims, pending exhaustion of the
dismissed unexhausted claims in state court; and (3) amendment of the
original petition to add the newly exhausted claims that then relate back
to the original petition. Here, the Ninth Circuit held that if a pro se
prisoner files a mixed petition, the district court must give two specific
warnings regarding the stay-and-abeyance procedure. But federal dis-
trict judges have no obligation to act as counsel or paralegal to pro se
litigants. See, e. g., McKaskle v. Wiggins, 465 U. S. 168, 183–184. Ex-
plaining the details of federal habeas procedure and calculating statutes
of limitations are tasks normally and properly performed by trained
counsel. Requiring district courts to advise pro se litigants in such a
manner would undermine district judges’ role as impartial decisionmak-
ers. And the warnings run the risk of being misleading. The first
could encourage the use of stay-and-abeyance when it is not in the peti-
tioner’s best interest. The second would force upon judges the poten-
tially burdensome task of making a case-specific calculation of whether
the AEDPA limitations period has already run or will have run by the
time the petitioner returns to federal court. Because such calculations
depend upon information contained in documents that do not necessarily
accompany the petition, a district judge’s calculation could be in error
and thereby misinform a pro se petitioner. Respondent’s argument
that Rose requires that a prisoner be given “the choice of returning to
state court to exhaust his claims or amending or resubmitting the ha-
beas petition to present only exhausted claims to the district court,” 455
U. S., at 510, is unavailing. Rose requires only that a district court
dismiss mixed petitions, which, as a practical matter, means that the
prisoner must follow one of these two paths if he wants to proceed with
his federal petition. Nothing in Rose requires that both options be
equally attractive, or that district judges give specific advisements as
to the availability and wisdom of these options. Respondent’s reliance
on Castro v. United States, 540 U. S. 375, is misplaced, because Castro
dealt with a District Court’s sua sponte recharacterization of a prison-
er’s pleading and did not address whether a district court is required
to explain a pro se litigant’s options before a voluntary dismissal.
Pp. 230–234.

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Opinion of the Court
(b) The case is remanded for further proceedings given the concern
that respondent had been affirmatively misled. P. 234.
330 F. 3d 1086, vacated and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. O’Connor, J.,
filed a concurring opinion, post, p. 234. Stevens, J., filed an opinion con-
curring in the judgment, in which Souter, J., joined, post, p. 235. Gins-
burg, J., filed a dissenting opinion, in which Breyer, J., joined, post,
p. 235. Breyer, J., filed a dissenting opinion, post, p. 237.
Paul M. Roadarmel, Jr., Deputy Attorney General of Cali-
fornia, argued the cause for petitioner. With him on the
briefs were Bill Lockyer, Attorney General, Manuel M.
Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Senior
Assistant Attorney General, Donald E. De Nicola, Deputy
Attorney General, and Kenneth C. Byrne, Supervising Dep-
uty Attorney General.
Lisa M. Bassis, by appointment of the Court, 540 U. S.
1216, argued the cause and filed a brief for respondent.*
Justice Thomas delivered the opinion of the Court.
Under Rose v. Lundy, 455 U. S. 509 (1982), federal district
courts must dismiss “mixed” habeas corpus petitions—those
containing both unexhausted and exhausted claims. In this
case, we decide whether the District Court erred by dismiss-
ing, pursuant to Rose, a pro se habeas petitioner’s two habeas
petitions without giving him two particular advisements.
Because we hold that the District Court’s failure to provide
these warnings did not make the dismissals improper, we
need not address the second question presented, whether re-
spondent’s subsequent untimely petitions relate back to his
“improperly dismissed” initial petitions.
*Briefs of amici curiae urging affirmance were filed for Federal Defend-
ers in the Ninth Circuit by Maria E. Stratton, Mark R. Drozdowski, Fred-
eric F. Kay, Quin A. Denvir, Barry J. Portman, Peter C. Wolff, Jr., An-
thony R. Gallagher, Roger Peven, and Thomas W. Hillier II; and for the
National Association of Criminal Defense Lawyers by Walter Dellinger,
Pamela Harris, and David M. Porter.

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228 PLILER v. FORD
Opinion of the Court
I
On April 19, 1997, five days before his 1-year statute of
limitations under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110 Stat. 1214, would have
run, respondent signed and delivered to prison authorities
two pro se federal habeas corpus petitions. The first peti-
tion related to respondent’s conviction for, among other
things, conspiring to murder John Loguercio and attempting
to murder Loguercio’s wife; the second related to his convic-
tion for the first-degree murder and conspiracy to commit the
murder of Thomas Weed. Because the petitions contained
unexhausted claims, respondent also filed motions to stay the
petitions so that he could return to state court to exhaust
the unexhausted claims. The Magistrate Judge gave re-
spondent three options: (1) The petitions could be dismissed
without prejudice and respondent could refile after exhaust-
ing the unexhausted claims; (2) the unexhausted claims could
be dismissed and respondent could proceed with only the ex-
hausted claims; or (3) respondent could contest the Magis-
trate Judge’s finding that some of the claims had not been
exhausted. App. 51–52; 81–82.
With respect to his petition in the Loguercio case, re-
spondent chose the first option. With respect to the Weed
case, respondent failed to respond to the Magistrate Judge.
The District Court dismissed respondent’s petitions without
prejudice. In both cases, respondent proceeded by filing ha-
beas corpus petitions in the California Supreme Court, which
were both summarily denied. Respondent subsequently re-
filed his pro se habeas petitions in Federal District Court.
The District Court, in both cases, dismissed the petitions
with prejudice as untimely under AEDPA’s 1-year statute
of limitations, 28 U. S. C. § 2244(d), and denied respondent’s
motions for a certificate of appealability (COA). The Ninth
Circuit consolidated respondent’s motions for a COA, and
then granted a COA on the question whether his federal ha-
beas petitions were timely under § 2244(d). A divided panel

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Opinion of the Court
concluded that both of respondent’s initial federal habeas pe-
titions were timely filed and held that his later petitions re-
lated back to the initial petitions. Ford v. Hubbard, 330
F. 3d 1086, 1097 (2003).
Although the District Court correctly concluded that it did
not have discretion to stay respondent’s mixed petitions, see
Rose, supra, at 522, the Ninth Circuit determined that the
District Court could have acted on the stay motions if re-
spondent had chosen the Magistrate Judge’s second option—
dismissal of the unexhausted claims—and then renewed the
prematurely filed stay motions. Under the Ninth Circuit’s
view, the District Court was obligated to advise respondent
that it could consider his stay motions only if he chose this
route. 330 F. 3d, at 1099. The District Court’s failure to
inform respondent was, according to the Court of Appeals,
prejudicial error because it deprived respondent of a “fair
and informed opportunity to have his stay motions heard, to
exhaust his unexhausted claims, and ultimately to have his
claims considered on the merits.” Id., at 1100.
The District Court also committed prejudicial error, ac-
cording to the Ninth Circuit, for failing to inform respondent
that AEDPA’s 1-year statute of limitations had run on both
of his petitions and that, consequently, he would be barred
from refiling his petitions in federal court if he failed to
amend them or if he chose to dismiss the petitions without
prejudice in order to exhaust the unexhausted claims.
Under the Court of Appeals’ view, the District Court “defin-
itively, although not intentionally,” misled respondent by
telling him that if he chose the first option, the dismissal
would be without prejudice. Ibid. The Court of Appeals
concluded that respondent should have been told that, be-
cause AEDPA’s statute of limitations had run with respect
to his claims, a dismissal without prejudice would effectively
result in a dismissal with prejudice unless equitable tolling
applied. Id., at 1101. According to the Court of Appeals,
the District Court’s error in this regard deprived respondent

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230 PLILER v. FORD
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of the opportunity to make a “meaningful” choice between
the two options. Id., at 1102.1 We granted certiorari, 540
U. S. 1099 (2004).
II
Under Rose, federal district courts must dismiss mixed ha-
beas petitions. 455 U. S., at 510, 522. Subsequent to the
Court’s decision in Rose, Congress enacted AEDPA, which
imposed a 1-year statute of limitations for filing a federal
habeas corpus petition. See 28 U. S. C. § 2244(d)(1). The
combined effect of Rose and AEDPA’s limitations period is
that if a petitioner comes to federal court with a mixed peti-
tion toward the end of the limitations period, a dismissal of
his mixed petition could result in the loss of all of his
claims—including those already exhausted—because the lim-
itations period could expire during the time a petitioner re-
turns to state court to exhaust his unexhausted claims. To
address this, the Ninth Circuit has held that a district court
may employ a stay-and-abeyance procedure. See Calderon
v. United States Dist. Court for Northern Dist. of Cal. ex rel.
Taylor, 134 F. 3d 981, 988 (1998). The stay-and-abeyance
procedure involves three steps: first, dismissal of any unex-
hausted claims from the original mixed habeas petition; sec-
ond, a stay of the remaining claims, pending exhaustion of
the dismissed unexhausted claims in state court; and third,
amendment of the original petition to add the newly ex-
1 Finding it impossible to put respondent in the position he had occupied
prior to the District Court’s “erroneous dismissal” of his initial petitions,
the Ninth Circuit concluded that Federal Rule of Civil Procedure 15(c)’s
amendment procedures apply to “ensure that [respondent’s] rights are not
unduly prejudiced as a result of the district court’s errors.” 330 F. 3d, at
1102. Accordingly, it held that “a pro se habeas petitioner who files a
mixed petition that is improperly dismissed by the district court, and who
then . . . returns to state court to exhaust his unexhausted claims and
subsequently re-files a second petition without unreasonable delay,” may
have his second petition relate back to the initial timely petition. Ibid.
As explained above, we need not address whether the Ninth Circuit’s deci-
sion on this ground was correct.

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hausted claims that then relate back to the original petition.
Id., at 986.
In this case, the Ninth Circuit held that if a pro se prisoner
files a mixed petition, the district court must give two spe-
cific warnings regarding the stay-and-abeyance procedure:
first, that “it would not have the power to consider [a prison-
er’s] motions to stay the [mixed] petitions unless he opted to
amend them and dismiss the then-unexhausted claims,” 330
F. 3d, at 1092–1093, and, second, if applicable, “that [a prison-
er’s] federal claims would be time-barred, absent cause for
equitable tolling, upon his return to federal court if he opted
to dismiss the petitions ‘without prejudice’ and return to
state court to exhaust all of his claims,” id., at 1093.
Without addressing the propriety of this stay-and-
abeyance procedure, we hold that federal district judges are
not required to give pro se litigants these two warnings.
District judges have no obligation to act as counsel or parale-
gal to pro se litigants. In McKaskle v. Wiggins, 465 U. S.
168, 183–184 (1984), the Court stated that “[a] defendant does
not have a constitutional right to receive personal instruc-
tion from the trial judge on courtroom procedure” and that
“the Constitution [does not] require judges to take over
chores for a pro se defendant that would normally be at-
tended to by trained counsel as a matter of course.” See
also Martinez v. Court of Appeal of Cal., Fourth Appellate
Dist., 528 U. S. 152, 162 (2000) (“[T]he trial judge is under no
duty to provide personal instruction on courtroom procedure
or to perform any legal ‘chores’ for the defendant that coun-
sel would normally carry out”). Explaining the details of
federal habeas procedure and calculating statutes of limita-
tions are tasks normally and properly performed by trained
counsel as a matter of course. Requiring district courts to
advise a pro se litigant in such a manner would undermine
district judges’ role as impartial decisionmakers. And, to
the extent that respondent is concerned with a district
court’s potential to mislead pro se habeas petitioners, the

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warnings respondent advocates run the risk of being mis-
leading themselves.
Specifically, the first warning could encourage the use of
stay-and-abeyance when it is not in the petitioner’s best in-
terest to pursue such a course. This could be the case, for
example, where the petitioner’s unexhausted claims are par-
ticularly weak and petitioner would therefore be better off
proceeding only with his exhausted claims. And it is cer-
tainly the case that not every litigant seeks to maximize judi-
cial process.
The second advisement would force upon district judges
the potentially burdensome, time-consuming, and fact-
intensive task of making a case-specific investigation and cal-
culation of whether the AEDPA limitations period has al-
ready run or will have run by the time the petitioner returns
to federal court. As the dissent below recognized, district
judges often will not be able to make these calculations
based solely on the face of habeas petitions. 330 F. 3d, at
1108. Such calculations depend upon information contained
in documents that do not necessarily accompany the peti-
tions. This is so because petitioners are not required by 28
U. S. C. § 2254 or the Rules Governing § 2254 Cases to attach
to their petitions, or to file separately, state-court records.2
See 1 R. Hertz & J. Liebman, Federal Habeas Corpus Prac-
tice and Procedure § 15.2c, p. 711 (4th ed. 2001) (“Most peti-
tioners do not have the ability to submit the record with
the petition, and the statute and rules relieve them of any
obligation to do so and require the state to furnish the record
with the answer”). District judges, thus, might err in their
2 There is one circumstance where nonindigent petitioners must furnish
the court with portions of the record. See 28 U. S. C. § 2254(f) (“If the
applicant challenges the sufficiency of the evidence . . . to support the
State court’s determination of a factual issue . . . , the applicant, if able,
shall produce that part of the record pertinent to a determination of the
sufficiency of the evidence”; “[i]f the applicant, because of indigency or
other reason is unable to produce such part of the record,” a court must
direct the State to produce it).

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Opinion of the Court
calculation of the statute of limitations and affirmatively mis-
inform pro se petitioners of their options.
Respondent nevertheless argues that the advisements are
necessary to ensure that pro se petitioners make informed
decisions and do not unknowingly forfeit rights. Brief for
Respondent 27–32. Respondent reads Rose as mandating
that “a prisoner be given ‘the choice of returning to state
court to exhaust his claims or amending or resubmitting the
habeas petition to present only exhausted claims to the dis-
trict court.’ ” Brief for Respondent 25–26, 27 (quoting Rose,
455 U. S., at 510) (emphasis in brief). But Rose requires
only that “a district court must dismiss . . . ‘mixed petitions,’
leaving the prisoner with the choice” described above. Ibid.
In other words, Rose requires dismissal of mixed petitions,
which, as a practical matter, means that the prisoner must
follow one of the two paths outlined in Rose if he wants to
proceed with his federal habeas petition. But nothing in
Rose requires that both of these options be equally attrac-
tive, much less suggests that district judges give specific ad-
visements as to the availability and wisdom of these options.
As such, any advisement of this additional option would
not “simply implement what this Court already requires.”
Brief for Respondent 27 (emphasis in original).
Respondent also relies heavily upon Castro v. United
States, 540 U. S. 375 (2003). In Castro, we held that a fed-
eral district court cannot sua sponte recharacterize a pro se
litigant’s motion as a first § 2255 motion unless it informs
the litigant of the consequences of the recharacterization,
thereby giving the litigant the opportunity to contest the
recharacterization, or to withdraw or amend the motion.
Id., at 377. Castro dealt with a District Court, of its own
volition, taking away a petitioner’s desired route—namely, a
Federal Rule of Criminal Procedure 33 motion—and trans-
forming it, against his will, into a § 2255 motion. Cf. id., at
386 (Scalia, J., concurring in part and concurring in judg-
ment) (“Recharacterization . . . requires a court deliberately
to override the pro se litigant’s choice of procedural vehicle

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O’Connor, J., concurring
for his claim”). We recognized that although this practice is
often used to help pro se petitioners, it could also harm them.
Id., at 381–382. Because of these competing considerations,
we reasoned that the warning would “help the pro se litigant
understand . . . whether he should withdraw or amend his
motion [and] whether he should contest the recharacteriza-
tion.” Id., at 384 (emphasis in original). Castro, then, did
not address the question whether a district court is required
to explain to a pro se litigant his options before a voluntary
dismissal and its reasoning sheds no light on the question
we confront.
Therefore, we hold that district courts are not required to
give the particular advisements required by the Ninth Cir-
cuit before dismissing a pro se petitioner’s mixed habeas pe-
tition under Rose. We remand the case for further proceed-
ings given the Court of Appeals’ concern that respondent
had been affirmatively misled quite apart from the District
Court’s failure to give the two warnings.
For the foregoing reasons, the judgment of the Court of
Appeals is vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
It is so ordered.
Justice O’Connor, concurring.
I join the Court’s opinion because it is limited to the nar-
row question whether the notifications crafted by the Ninth
Circuit must be given.
The propriety of the stay-and-abeyance procedure gener-
ally is not addressed. The District Court did not employ
that procedure, nor did the Ninth Circuit hold that it must
be applied in every case. There is, therefore, no need for us
to pass on it in this case, and the Court properly avoids doing
so. I note, however, that the procedure is not an idiosyn-
cratic one; as Justice Breyer describes, post, at 239 (dis-
senting opinion), seven of the eight Circuits to consider it
have approved stay-and-abeyance as an appropriate exercise
of a district court’s equitable powers.

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Ginsburg, J., dissenting
For the reasons given by the majority, ante, at 232–233, it
is not incumbent upon a district court to establish whether
the statute of limitations has already run before explaining
the options available to a habeas petitioner who has filed a
mixed petition. Nevertheless, if the petitioner is affirma-
tively misled, either by the court or by the State, equitable
tolling might well be appropriate. This is a question for the
Ninth Circuit to consider on remand. See ante, at 234.
Justice Stevens, with whom Justice Souter joins, con-
curring in the judgment.
While I fully agree with the views expressed by Justice
Ginsburg, post this page, and Justice Breyer, post, p. 237
(dissenting opinions), I am persuaded that the judgment en-
tered by the Court—remanding to the Ninth Circuit to de-
termine the propriety of equitable tolling—is both consistent
with those views and correct. I therefore concur in that
judgment.
Justice Ginsburg, with whom Justice Breyer joins,
dissenting.
The three options the Magistrate Judge gave respondent,
see ante, at 228, did not include the three-step stay and abey-
ance procedure described ante, at 230–231. Under that pro-
cedure: (1) unexhausted claims are dismissed from the fed-
eral petition; (2) exhausted claims are retained in federal
court, but are stayed pending exhaustion in state court of
the dismissed unexhausted claims; and (3) postexhaustion in
state court, the original federal petition is amended to rein-
state the now exhausted claims, which are then deemed to
relate back to the initial filing.1 The Court today does not
“addres[s] the propriety of this stay-and-abeyance proce-
1 The Ninth Circuit here allowed relation back of amendments although
no pleading remained before the federal court. See ante, at 230, n. 1. In
contrast, under the stay and abeyance procedure, the original habeas peti-
tion, although shorn of unexhausted claims, remains pending in federal
court, albeit stayed.

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236 PLILER v. FORD
Ginsburg, J., dissenting
dure.” Ante, at 231. But that unaddressed issue seems to
me pivotal. If the stay and abeyance procedure was a choice
respondent could have made, then the Magistrate Judge
erred in failing to inform respondent of that option. While
I do not suggest that clear statement of the options available
to respondent must be augmented by “advisements,” ante,
at 234, I would not defer, as the Court does, the question at
the core of this case.2
Furthermore, as this Court recognizes, ante, at 228, re-
spondent filed his habeas petitions “five days before [the ter-
mination of AEDPA’s] 1-year statute of limitations.” Thus,
any new petition by respondent would have been time barred
even before the Magistrate Judge dismissed respondent’s
original petitions. Given that undisputed fact, the Magis-
trate Judge’s characterization of the dismissal orders as
“without prejudice” seems to me highly misleading.
Because the Court disposes of this case without confront-
ing the above-described ripe issues, I dissent. Although my
reasons differ from those stated in the Ninth Circuit’s opin-
ion, I would affirm the Ninth Circuit’s judgment to the ex-
2 A related question also postponed by the Court’s opinion is whether
the solution in Rose v. Lundy, 455 U. S. 509 (1982), to a mixed petition—
dismissal without prejudice—bears reexamination in light of the one-year
statute of limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), on the time to file federal habeas petitions.
See Duncan v. Walker, 533 U. S. 167, 182–183 (2001) (Stevens, J., concur-
ring in part and concurring in judgment) (“[A]lthough the Court’s pre-
AEDPA decision in Rose v. Lundy prescribed the dismissal of federal ha-
beas corpus petitions containing unexhausted claims, in our post-AEDPA
world there is no reason why a district court should not retain jurisdiction
over a meritorious claim and stay further proceedings pending the com-
plete exhaustion of state remedies.” (citation omitted)); Crews v. Horn,
360 F. 3d 146, 154, and n. 5 (CA3 2004) (holding that both exhausted and
unexhausted claims “should be stayed,” and noting that a stay, “as effec-
tively as a dismissal, . . . is a traditional way to defer to another court
until that court has had an opportunity to exercise its jurisdiction over a
habeas petition’s unexhausted claims” (internal quotation marks omitted)).

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Breyer, J., dissenting
tent that it vacated the District Court’s dismissal of Ford’s
second petitions.
Justice Breyer, dissenting.
I join Justice Ginsburg’s dissent. But I write sepa-
rately to “addres[s] the propriety of ” the Ninth Circuit’s
“stay-and-abeyance procedure.” Ante, at 231 (majority
opinion). That procedure would have permitted Richard
Ford, the respondent, to ask the federal court to stay pro-
ceedings and hold his federal habeas petition (in abeyance)
on its docket while he returned to state court to exhaust his
unexhausted federal claims. Thus Ford would not have had
to bring his federal petition again, after expiration of the
1-year limitations period. California’s courts thereby could
have considered his unexhausted claims without forcing him
to forfeit his right to ask a federal court for habeas relief.
What could be unlawful about this procedure? In Rose v.
Lundy, 455 U. S. 509 (1982), the Court, pointing to considera-
tions of comity, held that federal habeas courts must give
state courts a first crack at deciding an issue. Id., at 518–
519. It prohibited the federal courts from considering unex-
hausted claims. The Court added that, where a habeas peti-
tion is “mixed” (containing both exhausted and unexhausted
claims), the federal habeas court should dismiss the petition.
Id., at 520. Rose reassured those prisoners (typically acting
pro se), however, that the dismissal would not “unreasonably
impair the prisoner’s right to relief.” Id., at 522. That re-
assurance made sense at that time because the law did not
then put a time limit on refiling. It thereby permitted a
prisoner to return to federal court after he had exhausted
his state remedies. Id., at 520. Of course, the law prohibits
a prisoner from “abusing the writ,” but ordinarily a petition-
er’s dismissal of his mixed petition, his presenting unex-
hausted claims to the state courts, and his subsequent return
to federal court would not have constituted an abuse.

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238 PLILER v. FORD
Breyer, J., dissenting
Fourteen years after Rose, Congress enacted the Antiter-
rorism and Effective Death Penalty Act of 1996 (AEDPA).
AEDPA imposed a 1-year statute of limitations for filing a
habeas petition. 28 U. S. C. § 2244(d)(1). One might have
thought at first blush that the 1-year limitations period
would not make much practical difference where an
exhaustion-based dismissal of a mixed petition was at issue,
for AEDPA tolls the limitations period while “a properly
filed application for State post-conviction or other collateral
review . . . is pending.” § 2244(d)(2). In Duncan v. Walker,
533 U. S. 167, 181–182 (2001), however, this Court held that
the words “other collateral review” do not cover a federal
habeas proceeding. And that fact means that a pro se ha-
beas petitioner who mistakenly files a mixed petition in fed-
eral court may well find that he has no time to get to state
court and back before his year expires. Hence, after Dun-
can, the dismissal of such a petition will not simply give state
courts a chance to consider the unexhausted issues he raises;
it often also means the permanent end of any federal habeas
review. Ante, at 230; see also Duncan, supra, at 186, 191
(Breyer, J., dissenting) (citing statistics that 93% of habeas
petitioners are pro se; 63% of all habeas petitions are dis-
missed; 57% of those are dismissed for failure to exhaust;
and district courts took an average of nearly nine months to
dismiss petitions on procedural grounds). Indeed, in this
very case—a not atypical scenario—the limitations period
expired while the petition was pending before the District
Court.
I dissented in Duncan, arguing that Congress could not
have intended to cause prisoners to lose their habeas rights
under these circumstances. 533 U. S., at 190. Although the
majority reached a different conclusion, it did so primarily
upon the basis of the statute’s language. See id., at 172–178.
Accepting the majority’s view of that language, I none-
theless believe that the other considerations that I raised in
Duncan support the lawfulness of the Ninth Circuit’s stay-

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239 Cite as: 542 U. S. 225 (2004)
Breyer, J., dissenting
and-abeyance procedure. That procedure recognizes the
comity interests that Rose identified, and it reconciles those
interests with the longstanding constitutional interest in
making habeas corpus available to state prisoners. There is
no tension between the two. It is thus not surprising that
nearly every circuit has adopted a similar procedure. E. g.,
Crews v. Horn, 360 F. 3d 146, 152 (CA3 2004) (“[V]irtually
every other Circuit that has considered this issue has held
that, following AEDPA, while it usually is within a district
court’s discretion to determine whether to stay or dismiss a
mixed petition, staying the petition is the only appropriate
course of action where an outright dismissal could jeopardize
the timeliness of a collateral attack” (internal quotation
marks omitted)); Nowaczyk v. Warden, 299 F. 3d 69, 79 (CA1
2002); Palmer v. Carlton, 276 F. 3d 777, 781 (CA6 2002); Zar-
vela v. Artuz, 254 F. 3d 374, 381 (CA2 2001); Freeman v.
Page, 208 F. 3d 572, 577 (CA7 2000); Brewer v. Johnson, 139
F. 3d 491, 493 (CA5 1998); cf. Mackall v. Angelone, 131 F. 3d
442, 445 (CA4 1997); but cf. Akins v. Kenney, 341 F. 3d 681,
685–686 (CA8 2003) (refusing to stay mixed petitions). See
also Duncan, 533 U. S., at 182–183 (Stevens, J., concurring
in part and concurring in judgment) (“[T]here is no reason
why a district court should not retain jurisdiction over a
meritorious claim and stay further proceedings pending the
complete exhaustion of state remedies”); id., at 192 (Breyer,
J., dissenting) (noting “Justice Stevens’ sound suggestions
that district courts hold mixed petitions in abeyance”).
I recognize that the Duncan majority also noted the im-
portance of respecting AEDPA’s goals of “comity, finality,
and federalism.” Id., at 178 (internal quotation marks omit-
ted). But I do not see how the Ninth Circuit’s procedure
could significantly undermine those goals. It is unlikely to
mean that prisoners will increasingly file mixed petitions.
A petitioner who believes that he is wrongly incarcerated
would not deliberately file a petition with unexhausted
claims in the wrong (i. e., federal) court, for that error would

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240 PLILER v. FORD
Breyer, J., dissenting
simply prolong proceedings. Those under a sentence of
death might welcome delays, but in such cases deliberate
misfiling would risk a finding that the filer has abused the
writ and a consequent judicial refusal to hold the petition in
abeyance. Moreover, a habeas court may fashion a stay to
prevent abusive delays; for example, by providing a time
limit within which a prisoner must exhaust state-court reme-
dies. See, e. g., Zarvela, supra, at 381.
Nor does the Ninth Circuit procedure seriously undermine
AEDPA’s 1-year limitations period. That provision re-
quires a prisoner to file a federal habeas petition with at
least one exhausted claim within the 1-year period, and it
prohibits the habeas petitioner from subsequently including
any new claim. These requirements remain.
Given the importance of maintaining a prisoner’s access to
a federal habeas court and the comparatively minor interfer-
ence that the Ninth Circuit’s procedure creates with comity
or other AEDPA concerns, I would find use of the stay-
and-abeyance procedure legally permissible. I also believe
that the Magistrate Judge should have informed Ford of this
important rights-preserving option. See ante, at 236 (Gins-
burg, J., dissenting). For these reasons, I respectfully
dissent.