EVANS, ACTING WARDEN v. CHAVIS

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Syllabus
EVANS, ACTING WARDEN v. CHAVIS
certiorari to the united states court of appeals for
the ninth circuit
No. 04–721. Argued November 9, 2005—Decided January 10, 2006
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
gives a state prisoner whose conviction has become final one year to
seek federal habeas corpus relief, 28 U. S. C. § 2244(d)(1)(A), but tolls
this 1-year limitations period for the “time during which a properly filed
application for State . . . collateral review . . . is pending,” § 2244(d)(2).
Under California’s collateral review scheme, the equivalent of a notice
of appeal is timely if filed within a “reasonable time.” In Carey v. Saf
fold, 536 U. S. 214, this Court held, inter alia, that (1) only a timely
appeal tolls AEDPA’s limitations period for the time between the lower
court’s adverse decision and the filing of a notice of appeal; (2) in Califor
nia, “unreasonable” delays are not timely; and (most pertinently) (3) a
California Supreme Court order denying a petition “on the merits” does
not automatically indicate that the petition was timely filed.
Respondent Chavis, a California state prisoner, filed a state habeas
petition on May 14, 1993, which the trial court denied. On September
29, 1994, the California Court of Appeal also held against him. He then
waited more than three years before seeking review in the California
Supreme Court. On April 29, 1998, that court issued an order stating
simply that the petition was denied. On August 30, 2000, Chavis filed
a federal habeas petition. After the case reached it, the Ninth Circuit
concluded that the federal petition’s timeliness depended on whether
Chavis’ state postconviction relief application was “pending,” therefore
tolling AEDPA’s limitations period, during the 3-year period between
the time the California Court of Appeal issued its opinion and the time
he sought review in the State Supreme Court. The Ninth Circuit held
that the state application was “pending” because under Circuit prece
dent a denial without comment or citation is treated as a denial on the
merits, and a petition denied on the merits was not untimely.
Held: The Ninth Circuit departed from Saffold’s interpretation of
AEDPA as applied to California’s system. Pp. 197–201.
(a) Contrary to Saffold, the Circuit in this case said in effect that
the California Supreme Court’s denial of a petition “on the merits” did
automatically mean that the petition was timely. More than that, it
treated a State Supreme Court order that was silent on the grounds for

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Syllabus
the court’s decision as equivalent to an order in which the words “on
the merits” appeared. If the appearance of “on the merits” does not
automatically warrant a holding that the filing was timely, the absence
of those words could not automatically warrant such a holding. Absent
(1) clear direction or explanation from the California Supreme Court
about the meaning of “reasonable time” in the present context, or
(2) clear indication that a particular request for appellate review was
timely or untimely, the Ninth Circuit must itself examine the delay in
each case and determine what the state courts would have held in re
spect to timeliness. This is what this Court believes it asked the Cir
cuit to do in Saffold. This is what this Court believes the Circuit
should have done here. Pp. 197–198.
(b) Given the uncertain scope of California’s “reasonable time” stand
ard, it may not be easy for the Ninth Circuit to decide in each of the
several hundred federal habeas petitions from California prisoners it
hears annually whether a prisoner’s state-court review petition was
timely. However, for the reasons given in Saffold, the Circuit’s attempt
to create shortcuts looking to the label the California Supreme Court
applied to the denial order, even where that label does not refer to time
liness, are not true, either to California’s timeliness rule or to AEDPA’s
intent to toll the 1-year limitations period only when the state collateral
review proceeding is “pending.” Saffold, 536 U. S., at 220–221, 225–
226. The California courts might alleviate the problem by clarifying
the scope of “reasonable time” or by indicating, when denying a petition,
whether the filing was timely. And the Ninth Circuit might seek guid
ance by certifying a question to the State Supreme Court in an appro
priate case. Id., at 226–227. Alternatively, the California Legislature
might decide to impose more determinate time limits, conforming Cali
fornia law with that of most other States. Absent any such guidance
from state law, however, the Ninth Circuit’s only alternative is to simply
ask and decide whether the state prisoner’s filing was made within a
reasonable time. In doing so, the Circuit must be mindful that, in Saf
fold, this Court held that timely filings in California fell within the fed
eral tolling provision on the assumption that California’s “reasonable
time” standard would not lead to filing delays substantially longer than
those in States with determinate timeliness rules. Id., at 222–223.
Pp. 198–200.
(c) Chavis did not file his petition for review in the California Su
preme Court within a reasonable time. This Court’s examination of the
record refutes his claim that his 3-year, 1-month, delay was reasonable
because he could not use the prison library to work on his petition dur
ing this period. And since Chavis needs all but two days of that

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lengthy delay to survive the federal 1-year habeas filing period, he can
not succeed. Pp. 200–201.
382 F. 3d 921, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ.,
joined. Stevens, J., filed an opinion concurring in the judgment, post,
p. 202.
Catherine Baker Chatman, Deputy Attorney General of
California, argued the cause for petitioner. With her on the
briefs were Bill Lockyer, Attorney General, Manuel M.
Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Senior Assist
ant Attorney General, and Janet E. Neeley, Stan Cross, and
Julie A. Hokans, Supervising Deputy Attorneys General.
Peter K. Stris, by appointment of the Court, 545 U. S. 1126,
argued the cause for respondent. With him on the brief
were Jason H. Wilson, Paul J. Loh, and Shaun P. Martin.*
Justice Breyer delivered the opinion of the Court.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA or Act) requires a state prisoner whose con
viction has become final to seek federal habeas corpus relief
within one year. 28 U. S. C. § 2244(d)(1)(A). The Act tolls
this 1-year limitations period for the “time during which a
properly filed application for State post-conviction or other
collateral review . . . is pending.” § 2244(d)(2). The time
that an application for state postconviction review is “pend
ing” includes the period between (1) a lower court’s adverse
determination, and (2) the prisoner’s filing of a notice of ap
peal, provided that the filing of the notice of appeal is timely
under state law. Carey v. Saffold, 536 U. S. 214 (2002).
In most States a statute sets out the number of days for
filing a timely notice of appeal, typically a matter of a few
*Jeffrey L. Fisher and Russell D. Covey filed a brief for the National
Association of Criminal Defense Lawyers as amicus cur iae urging
affirmance.

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days. See id., at 219. California, however, has a special
system governing appeals when prisoners seek relief on col
lateral review. Under that system, the equivalent of a no
tice of appeal is timely if filed within a “reasonable time.”
In re Harris, 5 Cal. 4th 813, 828, n. 7, 855 P. 2d 391, 398, n. 7
(1993); see also Saffold, supra, at 221.
In this case, the Ninth Circuit found timely a California
prisoner’s request for appellate review made three years
after the lower state court ruled against him. Chavis v.
LeMarque, 382 F. 3d 921 (2004). We conclude that the Cir
cuit departed from our interpretation of the Act as applied
to California’s system, Carey v. Saffold, supra, and we there
fore reverse its judgment.
I
We begin with our holding in Carey v. Saffold. In that
case we addressed three questions.
A
We initially considered the question just mentioned: For
purposes of tolling AEDPA’s 1-year limitations period, is a
state habeas application “pending” during the interval be
tween (1) the time a lower state court reaches an adverse
decision, and (2) the day the prisoner timely files an appeal?
We answered this question “yes.” 536 U. S., at 219–221. If
the filing of the appeal is timely, the period between the ad
verse lower court decision and the filing (typically just a few
days) is not counted against the 1-year AEDPA time limit.
B
We then pointed out that in most States a prisoner who
seeks review of an adverse lower court decision must file a
notice of appeal in a higher court, and the timeliness of that
notice of appeal is measured in terms of a determinate time
period, such as 30 or 60 days. Id., at 219. As we explained,
however, California has a different rule. In California, a
state prisoner may seek review of an adverse lower court

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decision by filing an original petition (rather than a notice
of appeal) in the higher court, and that petition is timely
if filed within a “reasonable time.” Id., at 221. We asked
whether this distinction made a difference for AEDPA toll
ing purposes. We answered that question “no.” Id., at
222–223. California’s system is sufficiently analogous to ap
pellate review systems in other States to treat it similarly.
See id., at 222 (“The upshot is that California’s collateral re
view process functions very much like that of other States,
but for the fact that its timeliness rule is indeterminate”).
As long as the prisoner filed a petition for appellate review
within a “reasonable time,” he could count as “pending” (and
add to the 1-year time limit) the days between (1) the time
the lower state court reached an adverse decision, and (2) the
day he filed a petition in the higher state court. Id., at 222–
223. We added, “The fact that California’s timeliness stand
ard is general rather than precise may make it more difficult
for federal courts to determine just when a review applica
tion (i. e., a filing in a higher court) comes too late.” Id., at
223. Nonetheless, the federal courts must undertake that
task.
C
We considered finally whether the state habeas petition at
issue in the case had itself been timely filed. Saffold had
filed that petition (a petition for review by the California
Supreme Court) not within 30 or even 60 days after the
lower court (the California Court of Appeal) had reached its
adverse decision, but, rather, 41⁄ 2 months later. The filing
was not obviously late, however, because the delay might
have been due to excusable neglect—Saffold said he had
taken 41⁄ 2 months because he had not received timely notice
of the adverse lower court decision. Id., at 226.
We sent the case back to the Ninth Circuit to decide
whether the prisoner had filed his California Supreme Court
petition within a “reasonable time,” thus making the filing
timely under California law. We also set forth several legal

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propositions that set the boundaries within which the Ninth
Circuit must answer this question.
First, we pointed out that if “the California Supreme
Court had clearly ruled that Saffold’s 41⁄ 2-month delay was
‘unreasonable,’ that would be the end of the matter.” Ibid.
Second, we noted that the California Supreme Court order
denying Saffold’s petition had stated that the denial was “ ‘on
the merits and for lack of diligence.’ ” Id., at 225. But, we
added, these words alone did not decide the question. Id.,
at 225–226.
Third, we stated that the words “lack of diligence” did not
prove that the California Supreme Court thought the peti
tion was untimely. That is because those words might have
referred to a totally different, earlier delay that was “irrele
vant” to the timeliness of Saffold’s California Supreme Court
petition. Id., at 226.
Fourth, we stated that the words “on the merits” did not
prove that the California Supreme Court thought the peti
tion was timely. That is because the California Supreme
Court might have decided to address the merits of the peti
tion even if the petition had been untimely. A “court,” we
said,
“will sometimes address the merits of a claim that it
believes was presented in an untimely way: for instance,
where the merits present no difficult issue; where the
court wants to give a reviewing court alternative
grounds for decision; or where the court wishes to show
a prisoner (who may not have a lawyer) that it was not
merely a procedural technicality that precluded him
from obtaining relief.” Id., at 225–226.
We ultimately concluded that the Ninth Circuit must not
take “such words” (i. e., the words “on the merits”) as “an
absolute bellwether” on the timeliness question. Id., at 226
(emphasis added). We pointed out that the Circuit’s con
trary approach (i. e., an approach that presumed that an

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order denying a petition “on the merits” meant that the peti
tion was timely) would lead to the tolling of AEDPA’s limita
tions period in circumstances where the law does not permit
tolling. Ibid. And we gave as an example of the incorrect
approach a case in which the Ninth Circuit had found timely
a petition for review filed four years after the lower court
reached its decision. Ibid. (citing Welch v. Newland, 267
F. 3d 1013 (CA9 2001)).
II
We turn now to the present case. Respondent Reginald
Chavis, a California state prisoner, filed a state habeas cor
pus petition on May 14, 1993. The trial court denied the
petition. He sought review in the California Court of Ap
peal, which also held against him. The Court of Appeal re
leased its decision on September 29, 1994. Chavis then
waited more than three years, until November 5, 1997, before
filing a petition for review in the California Supreme Court.
On April 29, 1998, the California Supreme Court denied the
petition in an order stating simply, “Petition for writ of ha
beas corpus [i. e., review in the California Supreme Court] is
DENIED.” App. G to Pet. for Cert. 1.
Subsequently, on August 30, 2000 (after bringing a second
round of state habeas petitions), Chavis filed a federal habeas
petition. The State asked the federal court to dismiss the
petition on the ground that it was untimely. After all,
AEDPA gives prisoners only one year to file their federal
petitions, and Chavis had filed his federal petition more than
four years after AEDPA became effective. Still, AEDPA
also provides for tolling, adding to the one year those days
during which an application for state collateral review is
“pending.” And the federal courts consequently had to cal
culate how many days Chavis’ state collateral review appli
cations had been “pending” in the state courts and add those
days to the 1-year limitations period.
Ultimately, after the case reached the Ninth Circuit, that
court concluded that the timeliness of the federal petition

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turned upon whether the “pending” period included the 3
year period between (1) the time a lower state court, the
California Court of Appeal, issued its opinion (September 29,
1994), and (2) the time Chavis sought review in a higher state
court, the California Supreme Court (on November 5, 1997).
The Ninth Circuit held that the state collateral review appli
cation was “pending” during this time; hence, it should add
those three years to the federal 1-year limitations period,
and the addition of those three years, along with various
other additions, rendered the federal filing timely.
The Ninth Circuit’s reasoning as to why it should add the
three years consists of the following:
“Under our decision in Saffold, because Chavis’s No
vember 1997 habeas petition to the California Supreme
Court was denied on the merits, it was pending during
the interval between the Court of Appeal decision and
the Supreme Court petition and he is entitled to tolling.
See [Saffold v. Carey, 312 F. 3d 1031, 1034–1036 (2002)].
When the California Supreme Court denies a habeas pe
tition without comment or citation, we have long treated
the denial as a decision on the merits. Hunter v.
Aispuro, 982 F. 2d 344, 348 (9th Cir. 1992). Therefore,
the California Supreme Court’s summary denial was on
the merits, and the petition was not dismissed as un
timely. See id.; see also Delhomme v. Ramirez, 340
F. 3d 817, 819, 820 n. 2 (9th Cir. 2003) (noting that there
was no indication that a state habeas petition was un
timely where the California Supreme Court denied the
petition without comment or citation). As a result,
Chavis is entitled to tolling during [the relevant pe
riod].” 382 F. 3d, at 926 (emphasis added).
California sought certiorari on the ground that the Ninth
Circuit’s decision was inconsistent with our holding in Saf
fold. We granted the writ.

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III
A
California argues that the Ninth Circuit’s decision in this
case is inconsistent with our decision in Saffold. Like Cali
fornia, we do not see how it is possible to reconcile the two
cases.
In Saffold, we held that (1) only a timely appeal tolls
AEDPA’s 1-year limitations period for the time between the
lower court’s adverse decision and the filing of a notice of
appeal in the higher court; (2) in California, “unreasonable”
delays are not timely; and (3) (most pertinently) a California
Supreme Court order denying a petition “on the merits” does
not automatically indicate that the petition was timely filed.
In addition, we referred to a Ninth Circuit case holding that
a 4-year delay was reasonable as an example of what the law
forbids the Ninth Circuit to do.
Nonetheless, the Ninth Circuit in this case said in effect
that the California Supreme Court’s denial of a petition “on
the merits” did automatically mean that the petition was
timely (and thus that a 3-year delay was reasonable). More
than that, it treated an order from the California Supreme
Court that was silent on the grounds for the court’s decision
as if it were equivalent to an order in which the words “on
the merits” appeared. 382 F. 3d, at 926. If the appearance
of the words “on the merits” does not automatically warrant
a holding that the filing was timely, the absence of those
words could not automatically warrant a holding that the fil
ing was timely. After all, the fact that the California Su
preme Court did not include the words “on the merits” in its
order denying Chavis relief makes it less likely, not more
likely, that the California Supreme Court believed that
Chavis’ 3-year delay was reasonable. Thus, the Ninth Cir
cuit’s presumption (“that an order decided entirely on the
merits indicates that the state court did not find the petition

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to be untimely,” post, at 205 (Stevens, J., concurring in
judgment)) is not consistent with Saffold. See supra, at
194.
Neither do the cases cited by the Ninth Circuit provide it
with the necessary legal support. The Circuit’s opinion in
Saffold (written on remand from this Court) said nothing
about the significance of the words “on the merits.” Saffold
v. Carey, 312 F. 3d 1031 (2002). Hunter v. Aispuro, 982 F. 2d
344 (CA9 1992), predated AEDPA, not to mention our deci
sion in Saffold, and in any event concerned an entirely differ
ent issue of federal habeas corpus law. Delhomme v. Rami
rez, 340 F. 3d 817 (CA9 2003), addressed the timeliness issue
in one sentence in a footnote, id., at 820, n. 2, and did not
discuss at any length our opinion in Saffold, which must con
trol the result here.
In the absence of (1) clear direction or explanation from
the California Supreme Court about the meaning of the term
“reasonable time” in the present context, or (2) clear indica
tion that a particular request for appellate review was timely
or untimely, the Circuit must itself examine the delay in each
case and determine what the state courts would have held in
respect to timeliness. That is to say, without using a merits
determination as an “absolute bellwether” (as to timeliness),
the federal court must decide whether the filing of the re
quest for state-court appellate review (in state collateral re
view proceedings) was made within what California would
consider a “reasonable time.” See supra, at 193. This is
what we believe we asked the Circuit to do in Saffold. This
is what we believe it should have done.
B
The discrepancy between the Ninth Circuit’s view of the
matter and ours may reflect an administrative problem.
The Ninth Circuit each year must hear several hundred peti
tions by California prisoners seeking federal habeas relief.

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Some of these cases will involve filing delays, and some of
those delays will require the federal courts to determine
whether a petition for appellate review in a related state
collateral proceeding was timely. Given the uncertain scope
of California’s “reasonable time” standard, it may not be easy
for the Circuit to decide in each such case whether the pris
oner’s state-court review petition was timely. And it is con
sequently not surprising that the Circuit has tried to create
rules of thumb that look to the label the California Supreme
Court applied to the denial order, even where that label does
not refer to timeliness. For the reasons we gave in Saffold,
however, we do not believe these shortcuts remain true,
either to California’s timeliness rule or to Congress’ intent
in AEDPA to toll the 1-year limitations period only when
the state collateral review proceeding is “pending.” 536
U. S., at 220–221, 225–226.
The California courts themselves might alleviate the prob
lem by clarifying the scope of the words “reasonable time”
in this context or by indicating, when denying a petition,
whether the filing was timely. And the Ninth Circuit might
seek guidance on the matter by certifying a question to the
California Supreme Court in an appropriate case. Id., at
226–227. Alternatively, the California Legislature might it
self decide to impose more determinate time limits, conform
ing California law in this respect with the law of most other
States. Indeed, either state body might adopt a state-law
presumption of the kind the concurrence here suggests. See
post, at 209. In the absence of any such guidance, however,
we see no alternative way of applying state law to a case
like this one but for the Ninth Circuit simply to ask and to
decide whether the state prisoner made the relevant filing
within a reasonable time. In doing so, the Circuit must keep
in mind that, in Saffold, we held that timely filings in Cali
fornia (as elsewhere) fell within the federal tolling provision
on the assumption that California law in this respect did not

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differ significantly from the laws of other States, i. e., that
California’s “reasonable time” standard would not lead to
filing delays substantially longer than those in States with
determinate timeliness rules. 536 U. S., at 222–223. Cali
fornia, of course, remains free to tell us if, in this respect, we
were wrong.
IV
As we have pointed out, supra, at 195, Chavis had one
year from the date AEDPA became effective (April 24, 1996)
to file a federal habeas petition. Chavis did not actually file
his petition in federal district court until August 30, 2000,
four years and 128 days after AEDPA’s effective date.
Hence Chavis’ federal petition was timely only if “a properly
filed application for State post-conviction or other collateral
review [was] pending” for at least three years and 128 days
of this time. 28 U. S. C. § 2244(d)(2). Under the Ninth Cir
cuit’s reasoning Chavis’ state collateral review proceedings
were “pending” for three years and 130 days, which period
(when added to the 1-year federal limitations period) makes
the federal petition timely.
As we have explained, however, we find the Ninth Circuit’s
reasoning in conflict with our Saffold holding. And, after
examining the record, we are convinced that the law does
not permit a holding that Chavis’ federal habeas petition was
timely. Chavis filed his state petition for habeas review in
the California Supreme Court approximately three years and
one month after the California Court of Appeal released its
decision denying him relief. Chavis tries to explain this
long delay by arguing that he could not use the prison library
to work on his petition during this time either because (1) his
prison job’s hours coincided with those of the library, or
(2) prison lockdowns confined him to his cell. And, he adds,
his inability to use the library excuses the three year and
one month delay—to the point where, despite the delay, he
filed his petition for California Supreme Court review within
a “reasonable time.”

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Chavis concedes, however, that in March 1996, App. 38,
about a year and a half after the California Court of Appeal
denied his habeas petition, he was given a new prison job.
He nowhere denies California’s assertion, id., at 68, that this
new job’s working hours permitted him to use the library.
And he also concedes that the prison “remained relatively
lockdown free” between February 1997 and August 1997, id.,
at 39, a 6-month period. Thus, viewing every disputed issue
most favorably to Chavis, there remains a totally unex
plained, hence unjustified, delay of at least six months.
Six months is far longer than the “short period[s] of time,”
30 to 60 days, that most States provide for filing an appeal
to the state supreme court. Saffold, supra, at 219. It is
far longer than the 10-day period California gives a losing
party to file a notice of appeal in the California Supreme
Court, see Cal. App. Ct. Rule 28(e)(1) (2004). We have found
no authority suggesting, nor found any convincing reason to
believe, that California would consider an unjustified or un
explained 6-month filing delay “reasonable.” Nor do we see
how an unexplained delay of this magnitude could fall within
the scope of the federal statutory word “pending” as inter
preted in Saffold. See 536 U. S., at 222–223. Thus, since
Chavis needs all but two days of the lengthy (three year and
one month) delay to survive the federal 1-year habeas filing
period, see 382 F. 3d, at 927, he cannot succeed.
The concurrence reaches the same ultimate conclusion in
a different way. Unlike the Ninth Circuit, it would not
count in Chavis’ favor certain days during which Chavis was
pursuing a second round of state collateral review efforts.
See post, at 210. Because, as the Ninth Circuit pointed out,
the parties did not argue this particular matter below, 382
F. 3d, at 925, n. 3, we do not consider it here.
For these reasons, the judgment of the Ninth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.

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Stevens, J., concurring in judgment
Justice Stevens, concurring in the judgment.
Today the Court holds that, in the absence of a clear state
ment by a California state court that a petition for habeas
corpus was timely or untimely, a federal court “must itself
examine the delay in each case” to determine whether the
filing “was made within what California would consider a
‘reasonable time.’ ” Ante, at 198. Contrary to the Court’s
admonition in its next sentence, this is not what we “asked
the Circuit to do in Saffold,” and it is not what “it should
have done.” Ibid. (citing Carey v. Saffold, 536 U. S. 214
(2002)).
The Ninth Circuit’s decision in this case was both faithful
to our decision in Saffold and consistent with our prior juris
prudence. Instead of endorsing an ad hoc approach to the
interpretation of ambiguous judgments entered by Califor
nia courts in the future, I believe we should direct the Ninth
Circuit to apply the straightforward presumptions that I de
scribe below. Rather than a de novo review of the record
and California law, see ante, at 200–201, it is the application
of these presumptions, buttressed by an independent error
made by the Ninth Circuit, that convinces me that the judg
ment must be reversed.
I
As the Court has explained, both in Saffold and in its opin
ion today, California’s postconviction procedures are unlike
those employed by most other States. See 536 U. S., at 221–
222; ante, at 191–193. California’s time limit for the filing of
a habeas corpus petition in a noncapital case is more forgiv
ing and more flexible than that employed by most States.
See Saffold, 536 U. S., at 222. Generally, such a petition
“must be filed within a reasonable time after the petitioner
or counsel knew, or with due diligence should have known,
the facts underlying the claim as well as the legal basis of
the claim.” In re Harris, 5 Cal. 4th 813, 828, n. 7, 855 P. 2d
391, 398, n. 7 (1993). And the State Supreme Court appar
ently may exercise its jurisdiction to decide the merits of
a petition for habeas corpus at any time whatsoever. See

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Cal. Const., Art. VI, § 10 (giving California Supreme Court
original jurisdiction over habeas petitions); In re Clark, 5
Cal. 4th 750, 764–765, 855 P. 2d 729, 738 (1993) (noting
procedural rules governing habeas petitions are judicially
created).
It is the existence of this flexible, discretionary timeliness
standard in noncapital cases 1 that gave rise to both the issue
presented in Saffold and the issue the Court addresses
today. In Saffold, we considered whether a habeas petition
filed in the California Supreme Court 41⁄ 2 months after the
lower state court made its decision was “pending” (and
therefore tolled the federal statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)) during that period. See 536 U. S., at 217. After
concluding that a state habeas application is pending during
the interval between an adverse lower court decision and the
filing in the California Supreme Court, and that California’s
virtually unique system made no difference for purposes of
tolling AEDPA’s statute of limitations, we were faced with
the question whether the state habeas petition in that case
had been timely filed. See id., at 221, 223, 225.
Rather than answering the question ourselves, we re
manded the case to the Court of Appeals with instructions
that it do so. Id., at 226. We also explained why the an
swer was not entirely clear. In its order the California Su
preme Court had stated that it had denied the petition both
“on the merits and for lack of diligence.” Id., at 218 (inter
nal quotation marks omitted). We pointed out that the fact
that the State Supreme Court had reached the merits did
not preclude the possibility that its alternative basis for deci
sion—“lack of diligence”—expressed a conclusion that the
1 As California’s Deputy Attorney General pointed out at oral argument,
this problem does not arise in capital cases because the California Su
preme Court has adopted separate rules for such cases. See Tr. of Oral
Arg. 63. This is significant because, while prisoners on death row often
have an incentive to adopt delaying tactics, those serving a sentence of
imprisonment presumably want to obtain relief as promptly as possible.

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41⁄ 2-month delay was unreasonable and therefore that it had
considered the petition untimely as a matter of state law.
On the other hand, we also recognized that “lack of dili
gence” might have referred to the respondent’s earlier fail
ure to file his first postconviction petition more promptly,
“a matter irrelevant to the question whether his application
was ‘pending’ during the 41⁄ 2-month interval.” Id., at 226.
Our opinion requested the Court of Appeals to resolve the
ambiguity, noting that it might be “appropriate to certify
a question to the California Supreme Court for the purpose
of seeking clarification in this area of state law.” Id., at
226–227.2
On remand in Saffold, after reviewing three fairly contem
poraneous California Supreme Court orders that involved
delays of 7 months, 18 months, and 15 months without men
tioning any “lack of diligence,” the Court of Appeals came
to the quite reasonable conclusion that the State Supreme
Court’s “lack of diligence” notation in the order denying Saf
fold’s petition referred to an earlier 5-year delay that was
irrelevant to the tolling issue rather than to the 41⁄ 2-month
delay that had preceded his most recent filing. See Saffold
v. Carey, 312 F. 3d 1031, 1035 (CA9 2002). It also noted
“that we have not been asked to provide any bright-line rule
for determining what constitutes ‘unreasonable’ delay under
California’s indeterminate timeliness standard. While such
a bright-line rule would certainly be welcomed, . . . such an
issue is more appropriately decided by the California Su
preme Court or the California State Legislature.” Id., at
1036, n. 1.
As both Judge O’Scannlain—who wrote for the Court of
Appeals—and I understood the rule of law that animated our
remand, it was predicated on the assumption that the answer
to the timeliness question depended on what the California
Supreme Court had actually decided rather than on any con
2 This approach would apparently prove fruitless. See Tr. of Oral
Arg. 31.

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clusion that the Court of Appeals itself might reach concern
ing the reasonableness of the 41⁄ 2-month delay under Califor
nia law. See id., at 1034. That assumption, also applied by
the Ninth Circuit here, was consistent with the unequivocal
assertion in our opinion that if the California Supreme Court
had “clearly ruled” that the 41⁄ 2-month delay was unreason
able, “that would be the end of the matter,” even if the court
had also ruled on the merits. Saffold, 536 U. S., at 226.
Similarly, there is no inconsistency between our conclusion
in Saffold that the merits ruling “does not automatically
indicate that the petition was timely filed,” ante, at 197, and
the presumption applied by the Court of Appeals in this
case that an order decided entirely on the merits indicates
that the state court did not find the petition to be untimely,
see App. A to Pet. for Cert. 9, particularly when California
allows the petitioner to advance a variety of reasons to ex
cuse a late filing, see, e. g., In re Robbins, 18 Cal. 4th 770,
780–782, 959 P. 2d 311, 318 (1998). Our rejection of the
words “ ‘on the merits’ ” as “an absolute bellwether” was
made in a case in which the order itself indicated that the
state court might have considered the petition untimely.
Saffold, 536 U. S., at 226. Given that ambiguous order, Saf
fold did not foreclose the Court of Appeals’ presumption
that, by dismissing a petition solely on the merits, the state
court necessarily found the filing to be timely. The Court
of Appeals’ opinion in this case was therefore completely con
sistent with both our holding and our reasoning in Saffold.
II
The Court of Appeals’ opinion was also consistent with
our prior habeas jurisprudence. While the present question
requires us to apply the tolling provision of a federal statute,
application of that provision ultimately rests on state-law
procedural rules. See 28 U. S. C. § 2244(d)(2) (tolling federal
statute while “properly filed” application for state postcon
viction relief is pending). To the extent that a possibly

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decisive state-law requirement is at issue, application of
AEDPA’s tolling provision is analogous to the question
whether denial of a state postconviction petition rested upon
an adequate and independent state ground.
Faced with such a question, it has been our general prac
tice to try to determine the actual basis for the state court’s
decision rather than to resolve the state-law issue ourselves.
The mere fact that a federal petitioner failed to abide by a
state procedural rule does not prevent a federal court from
resolving a federal claim unless the state court actually re
lied on the state procedural bar “as an independent basis for
its disposition of the case.” Harris v. Reed, 489 U. S. 255,
261–262 (1989) (internal quotation marks omitted). This
practice is consistent with the rule of Michigan v. Long, 463
U. S. 1032, 1042 (1983), that unless it is “clear from the opin
ion itself ” that the state court’s decision rested on an ade
quate and independent state ground, we have appellate juris
diction to review its resolution of a federal constitutional
question. And in cases in which a state-court order is silent
as to the basis for its decision, we have resorted to a pre
sumption to reflect the role intended for such orders by the
state court that issued it. See Ylst v. Nunnemaker, 501
U. S. 797, 803–804 (1991).
Until today, however, we have not directed the lower fed
eral courts to decide disputed issues of state procedural law
for themselves instead of focusing on the actual basis for a
state-court ruling. The Ninth Circuit’s decision in this case
was entirely consistent with our past practice, and I would
adhere to that practice in confronting the question whether
habeas petitions advancing federal claims in California
courts were filed within a reasonable time as a matter of
California law. Cf. Brooks v. Walls, 279 F. 3d 518, 522
(CA7 2002) (Easterbrook, J.) (applying Harris and Ylst to
AEDPA’s “properly filed” requirement). The inquiry, then,
should focus on what the state court actually decided rather

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than what a federal court believes it could, or should, have
done.
III
Determining what the California Supreme Court has “ac
tually” decided is sometimes easy and sometimes difficult.
Its rulings denying habeas corpus petitions generally fall
into three broad categories: those expressly deciding the
timeliness question, those deciding the merits without com
ment on timeliness, and those that do not disclose the basis
for the decision.3 To simplify the inquiry, a straightforward
rule can be applied to each type of order.
The easiest cases, of course, are those in which the state
court order expressly states that a petition was either un
timely or timely. As we have explained, if the state court’s
untimeliness ruling is clear, “that would be the end of the
matter,” even if the court had also ruled on the merits. Saf
fold, 536 U. S., at 226. Conversely, an unequivocal holding
that a delay was not unreasonable should be respected even
if a federal judge would have decided the issue differently.4
The decision that a petition has been untimely filed need
not be explicitly stated; citation to a case in which a petition
was dismissed as untimely filed certainly would suffice.5
Cf. Brief for Petitioner 27; Robbins, 18 Cal. 4th, at 814, n. 34,
959 P. 2d, at 340, n. 34 (explaining California’s practice of
citing certain cases for certain propositions).
More difficult are those cases in which the state court
rules on the merits without any comment on timeliness.
3 Orders resting on alternative grounds, such as the one in Carey v.
Saffold, 536 U. S. 214 (2002), may require special consideration.
4 At oral argument, California’s Deputy Attorney General agreed that if
the California Supreme Court had expressly decided that respondent
Chavis’ state habeas petition included a satisfactory explanation for the
3-year delay preceding his filing in that court, but decided against him on
the merits, the federal statute of limitations would have been tolled. See
Tr. of Oral Arg. 19–20.
5 As I point out, infra, at 210, this is such a case.

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The Ninth Circuit deals with this situation by applying the
presumption that a ruling on the merits, simpliciter, means
that the state court has concluded that the petition was
timely. The Court today seemingly assumes—incorrectly—
that we rejected that presumption in Saffold. Even if we
did so sub silentio, however, I am convinced that the Court
should now endorse the Ninth Circuit’s presumption because
it is both eminently sensible as a matter of judicial adminis
tration and entirely sound as a matter of law. Cf. Robbins,
18 Cal. 4th, at 814, n. 34, 959 P. 2d, at 340, n. 34 (explaining
that when the State argues that a procedural bar applies,
and the California Supreme Court’s order does not cite a case
imposing that bar, it means the claim is not barred on the
asserted ground). The interest in the efficient processing of
the dockets of overworked federal judges provides powerful
support for relying on a presumption rather than engaging
in de novo review of the questions whether the length of a
delay was excessive, whether the petitioner’s explanation for
the delay would be considered acceptable by a California
court, and whether a nonetheless unreasonable delay should
be excused because the petition raises an unusually serious
constitutional question. Cf. id., at 779–782, 959 P. 2d, at
317–318.
There are, of course, cases in which the Ninth Circuit’s
presumption may not be accurate. For example, a state
court may find the deficiencies in a claim so clear that it is
easier to deny it on the merits than to decide whether ex
cuses for an apparently unreasonable delay are sufficient.
But whereas California judges may continue to follow the
easier route, under today’s holding federal judges apparently
must answer the timeliness question no matter how difficult
it may be and no matter how easy it is to resolve the merits.
A simple rule, applicable to all unambiguous rulings on the
merits, is surely far wiser than the novel ad hoc approach
that the Court appears to endorse today.

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

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tions filed by respondent in that court were untimely. In
one order, the State Supreme Court made its finding of un
timeliness explicit; in the other, the 6-month presumption
should control.
First, as the Court notes ante, at 195, the California Su
preme Court entered an order denying respondent habeas
relief on April 29, 1998, and respondent did not file his fed
eral petition for habeas corpus until August 30, 2000—more
than a year later. The Court of Appeals found that the fed
eral statute of limitations was tolled during this 16-month
period by a second set of state habeas petitions that respond
ent initiated in the California trial court on January 25, 1999,
and that concluded with the entry of an order by the Califor
nia Supreme Court on April 28, 2000. See App. A to Pet.
for Cert. 11–12. That finding was erroneous.
The California Supreme Court’s April 28, 2000, order, un
like its 1998 order, was not silent. Instead, the April 2000
order cited three earlier California Supreme Court cases,
two of which stand for the proposition that a petition has
been untimely filed. See id., at 5; Robbins, 18 Cal. 4th, at
814, n. 34, 959 P. 2d, at 340, n. 34. Although the State did
not argue that respondent’s second habeas filing in the Cali
fornia Supreme Court was untimely, see App. A to Pet. for
Cert. 8, n. 3, there is not even an arguable basis for disputing
that the California Supreme Court found respondent’s sec
ond habeas petition to have been untimely filed. Given this
finding by the State Supreme Court, the Ninth Circuit
clearly erred (although not for the reasons claimed by the
Court).
Second, respondent’s November 5, 1997, state habeas pe
tition was filed with the California Supreme Court more
than three years after the California Court of Appeal denied
review. Ante, at 195. The State Supreme Court denied
that petition without explanation. Ibid. The presumption
I described above—that an unexplained order following a
delay longer than six months was based on the state court’s

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conclusion that the petition was untimely—provides me with
a sufficient reason for concluding that respondent’s state ha
beas petition was not pending during that 3-year interval.
Consequently, respondent’s federal habeas petition was also
untimely and should have been denied.
Accordingly, despite my profound disagreement with the
reasoning in the Court’s opinion, I concur in its judgment.