LAWRENCE v. FLORIDA

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
327 OCTOBER TERM, 2006
Syllabus
LAWRENCE v. FLORIDA
certiorari to the united states court of appeals for
the eleventh circuit
No. 05–8820. Argued October 31, 2006—Decided February 20, 2007
The 1-year statute of limitations for seeking federal habeas relief from a
state-court judgment is tolled while an “application for State post
conviction or other collateral review” “is pending. ” 28 U. S. C.
§ 2244(d)(2). Petitioner Lawrence filed a state postconviction relief ap
plication 364 days after his conviction became final. The trial court
denied relief, the State Supreme Court affirmed, and this Court denied
certiorari. While the certiorari petition was pending, Lawrence filed
the present federal habeas application. Then-applicable Eleventh Cir
cuit precedent foreclosed any argument that the limitations period was
tolled by the pendency of the certiorari petition. Thus, the District
Court dismissed Lawrence’s application as untimely because he waited
113 days after the State Supreme Court’s mandate—well beyond the
one day that remained in the limitations period—to file the application.
The Eleventh Circuit affirmed.
Held:
1. Section 2244(d)(2) does not toll the 1-year limitations period during
the pendency of a certiorari petition in this Court. Pp. 331–336.
(a) Read naturally, the statute’s text means that the statute of limi
tations is tolled only while state courts review the application. A state
postconviction application “remains pending” “until the application has
achieved final resolution through the State’s postconviction procedures.”
Carey v. Saffold, 536 U. S. 214, 220. This Court is not a part of those
“procedures,” which end when the state courts have finally resolved the
application. The application is therefore not “pending” after the state
court’s postconviction review is complete. If it were, it is difficult to
understand how a state prisoner could exhaust state postconviction rem
edies without filing a certiorari petition. Yet state prisoners need not
petition for certiorari to exhaust state remedies. Fay v. Noia, 372 U. S.
391, 435–438. Pp. 331–333.
(b) Lawrence argues that § 2244(d)(2) should be construed to have
the same meaning as § 2244(d)(1)(A), which refers to “the date on which
the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” (Emphasis added.)
While “direct review” has long included review by this Court, Clay v.
United States, 537 U. S. 522, 527–528, § 2244(d)(2) refers exclusively to
“State post-conviction or other collateral review,” language not easily

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
328 LAWRENCE v. FLORIDA
Syllabus
interpreted to include participation by a federal court. And although
the “time for seeking” direct review includes the period for filing a
certiorari petition, § 2244(d)(2) makes no reference to the “time for seek
ing” review of a state postconviction court’s judgment. Instead, it
seeks to know when a state review application is pending. A more
analogous statutory provision, § 2263(b)(2), contains a limitations period
that is tolled “from the date on which the first petition for post
conviction review or other collateral relief is filed until the final State
court disposition of such petition. ” Although this differs from
§ 2244(d)(2)’s language, the language used in both sections clearly pro
vides that tolling hinges on the pendency of state review. This inter
pretation of § 2244(d)(2) results in few practical problems. Because
this Court rarely grants review of state postconviction proceedings, it
is unlikely that a federal district court would duplicate this Court’s work
or analysis. In any event, a district court concerned about duplication
can stay a habeas application until this Court acts. Even in the ex
tremely rare case in which a state court grants relief and the State
prevails on certiorari, a prisoner who files a subsequent federal habeas
petition may be entitled to equitable tolling in light of arguably extraor
dinary circumstances and the prisoner’s diligence. See Pace v. DiGug
lielmo, 544 U. S. 408, 418, and n. 8. In contrast to these hypothetical
problems, allowing the statute of limitations to be tolled by certiorari
petitions would provide incentives for state prisoners to file such
petitions as a delay tactic, regardless of the merit of their claims.
Pp. 333–336.
2. Assuming, without deciding, that § 2244(d)(2) allows for equitable
tolling, Lawrence falls far short of showing “extraordinary circum
stances,” Pace, supra, at 418, necessary to support equitable tolling of
his otherwise untimely claims. Pp. 336–337.
421 F. 3d 1221, affirmed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, and Alito, JJ., joined. Ginsburg, J., filed a dis
senting opinion, in which Stevens, Souter, and Breyer, JJ., joined,
post, p. 337.
Mary Catherine Bonner, by appointment of the Court, 547
U. S. 1146, argued the cause for petitioner. With her on the
briefs were Wanda Raiford, Jeffrey T. Green, William M.
Norris, and Diane E. Courselle.
Christopher M. Kise argued the cause for respondent.
With him on the brief were Charles J. Crist, Jr., Attorney

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
329 Cite as: 549 U. S. 327 (2007)
Opinion of the Court
General of Florida, and James A. McKee, Deputy Solicitor
General.*
Justice Thomas delivered the opinion of the Court.
Congress established a 1-year statute of limitations for
seeking federal habeas corpus relief from a state-court judg
ment, 28 U. S. C. § 2244(d), and further provided that the
limitations period is tolled while an “application for State
post-conviction or other collateral review” “is pending,”
§ 2244(d)(2). We must decide whether a state application is
still “pending” when the state courts have entered a final
judgment on the matter but a petition for certiorari has been
filed in this Court. We hold that it is not.
I
Petitioner Gary Lawrence and his wife used a pipe and
baseball bat to kill Michael Finken. A Florida jury con
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by John Holdridge, Steven R. Shapiro, and
Larry W. Yackle; and for the National Association of Criminal Defense
Lawyers by Matthew M. Shors and Pamela Harris.
A brief of amici curiae urging affirmance was filed for the State of
Alabama et al. by Troy King, Attorney General of Alabama, Kevin C.
Newsom, Solicitor General, and James R. Houts, Assistant Attorney Gen
eral, and by the Attorneys General for their respective States as follows:
Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of
Colorado, Carl C. Danberg of Delaware, Thurbert E. Baker of Georgia,
Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan
of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Phill Kline of
Kansas, Gregory D. Stumbo of Kentucky, Jim Hood of Mississippi, Jere
miah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, George J.
Chanos of Nevada, Kelly A. Ayotte of New Hampshire, Wayne Stenehjem
of North Dakota, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma,
Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South
Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennes
see, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Robert F. McDon
nell of Virginia, Rob McKenna of Washington, and Darrell V. McGraw,
Jr., of West Virginia.

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
330 LAWRENCE v. FLORIDA
Opinion of the Court
victed Lawrence of first-degree murder, conspiracy to com
mit murder, auto theft, and petty theft. The trial court sen
tenced Lawrence to death. The Florida Supreme Court
affirmed Lawrence’s conviction and sentence on appeal, and
this Court denied certiorari on January 20, 1998. 522 U. S.
1080.
On January 19, 1999, 364 days later, Lawrence filed an ap
plication for state postconviction relief in a Florida trial
court.1 The court denied relief, and the Florida Supreme
Court affirmed, issuing its mandate on November 18, 2002.
See Lawrence v. State, 831 So. 2d 121 (per curiam). Law
rence sought review of the denial of state postconviction re
lief in this Court. We denied certiorari on March 24, 2003.
538 U. S. 926.
While Lawrence’s petition for certiorari was pending, he
filed the present federal habeas application. The Federal
District Court dismissed it as untimely under § 2244(d)’s 1
year limitations period. All but one day of the limitations
period had lapsed during the 364 days between the time
Lawrence’s conviction became final and when he filed for
state postconviction relief. The limitations period was then
tolled while the Florida courts entertained his state applica
tion. After the Florida Supreme Court issued its mandate,
Lawrence waited another 113 days—well beyond the 1 day
that remained in the limitations period—to file his federal
habeas application. As a consequence, his federal applica
tion could be considered timely only if the limitations period
1 Lawrence contends that delays in Florida’s program for appointing
postconviction counsel and other issues outside of his control caused 298
days to pass before Florida appointed an attorney who took an active role
in his postconviction case. These facts have little relevance to our analy
sis. Lawrence did not seek certiorari on the question whether these facts
entitle him to equitable tolling. Indeed, Lawrence was able to file his
state postconviction petition on time in spite of these delays. And before
this Court, he argues that his attorney mistakenly missed the federal ha
beas deadline, not that he lacked adequate time to file a federal habeas
application.

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
331 Cite as: 549 U. S. 327 (2007)
Opinion of the Court
continued to be tolled during this Court’s consideration of
his petition for certiorari. Then-applicable Eleventh Circuit
precedent foreclosed any argument that § 2244’s statute of
limitations was tolled by the pendency of a petition for cer
tiorari seeking review of a state postconviction proceeding.
See Coates v. Byrd, 211 F. 3d 1225, 1227 (2000) (per curiam).
Accordingly, the District Court concluded that Lawrence had
only one day to file a federal habeas application after the
Florida Supreme Court issued its mandate. The Eleventh
Circuit affirmed. 421 F. 3d 1221 (2005). We granted certio
rari, 547 U. S. 1039 (2006), and now affirm.
II
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 110 Stat. 1214, sets a 1-year statute of limita
tions for seeking federal habeas corpus relief from a state
court judgment. 28 U. S. C. § 2244(d)(1). This limitations
period is tolled while a state prisoner seeks postconviction
relief in state court:
“The time during which a properly filed application for
State post-conviction or other collateral review with re
spect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under
this subsection.” § 2244(d)(2).
Based on this provision, the parties agree that AEDPA’s lim
itations period was tolled from the filing of Lawrence’s peti
tion for state postconviction relief until the Florida Supreme
Court issued its mandate affirming the denial of that peti
tion. At issue here is whether the limitations period was
also tolled during the pendency of Lawrence’s petition for
certiorari to this Court seeking review of the denial of state
postconviction relief. If it was tolled, Lawrence’s federal
habeas application was timely. So we must decide whether,
according to § 2244(d)(2), an “application for State post

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
332 LAWRENCE v. FLORIDA
Opinion of the Court
conviction or other collateral review” “is pending” while this
Court considers a certiorari petition.2
Read naturally, the text of the statute must mean that the
statute of limitations is tolled only while state courts review
the application. As we stated in Carey v. Saffold, 536 U. S.
214, 220 (2002) (internal quotation marks omitted), a state
postconviction application “remains pending” “until the ap
plication has achieved final resolution through the State’s
postconviction procedures.” This Court is not a part of a
“State’s post-conviction procedures.” State review ends
when the state courts have finally resolved an application for
state postconviction relief. After the State’s highest court
has issued its mandate or denied review, no other state ave
nues for relief remain open. And an application for state
postconviction review no longer exists. All that remains is
a separate certiorari petition pending before a federal court.
The application for state postconviction review is therefore
not “pending” after the state court’s postconviction review is
complete, and § 2244(d)(2) does not toll the 1-year limitations
period during the pendency of a petition for certiorari.
If an application for state postconviction review were
“pending” during the pendency of a certiorari petition in this
Court, it is difficult to understand how a state prisoner could
exhaust state postconviction remedies without filing a peti
tion for certiorari. Indeed, AEDPA’s exhaustion provision
and tolling provision work together:
“The tolling provision of § 2244(d)(2) balances the in
terests served by the exhaustion requirement and the
limitation period. . . .
. . . . .
2 We have previously held that the word “State” modifies both the terms
“post-conviction” and “other collateral review.” Duncan v. Walker, 533
U. S. 167, 172–174 (2001). The question, therefore, is whether “an applica
tion for State post-conviction or other [State] collateral review . . . is pend
ing.” § 2244(d)(2) (emphasis added).

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
333 Cite as: 549 U. S. 327 (2007)
Opinion of the Court
Section 2244(d)(1)’s limitation period and § 2244(d)(2)’s
tolling provision, together with § 2254(b)’s exhaustion
requirement, encourage litigants first to exhaust all
state remedies and then to file their federal habeas peti
tions as soon as possible.” Duncan v. Walker, 533 U. S.
167, 179, 181 (2001) (final emphasis added).
Yet we have said that state prisoners need not petition for
certiorari to exhaust state remedies. Fay v. Noia, 372 U. S.
391, 435–438 (1963); County Court of Ulster Cty. v. Allen,
442 U. S. 140, 149–150, n. 7 (1979). State remedies are ex
hausted at the end of state-court review. Fay, supra, at
435–438; Allen, supra, at 149–150, n. 7.
Lawrence argues that § 2244(d)(2) should be construed to
have the same meaning as § 2244(d)(1)(A), the trigger provi
sion that determines when AEDPA’s statute of limitations
begins to run. But § 2244(d)(1)(A) uses much different lan
guage from § 2244(d)(2), referring to “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) (emphasis added). When interpreting simi
lar language in § 2255, we explained that “direct review” has
long included review by this Court. Clay v. United States,
537 U. S. 522, 527–528 (2003). Indeed, we noted that “[t]he
Courts of Appeals have uniformly interpreted ‘direct review’
in § 2244(d)(1)(A) to encompass review of a state conviction
by this Court.” Id., at 528, n. 3 (collecting cases). By con
trast, § 2244(d)(2) refers exclusively to “State post-conviction
or other collateral review,” language not easily interpreted
to include participation by a federal court.
Furthermore, § 2244(d)(1)(A) refers to the “time for seek
ing” direct review, which includes review by this Court
under Clay. By parity of reasoning, the “time for seeking”
review of a state postconviction judgment arguably would
include the period for filing a certiorari petition before this
Court. However, § 2244(d)(2) makes no reference to the

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
334 LAWRENCE v. FLORIDA
Opinion of the Court
“time for seeking” review of a state postconviction court’s
judgment. Instead, it seeks to know when an application
for “State . . . review” is pending. The linguistic difference
is not insignificant: When the state courts have issued a final
judgment on a state application, it is no longer pending even
if a prisoner has additional time for seeking review of that
judgment through a petition for certiorari.
A more analogous statutory provision is § 2263(b)(2), which
is part of AEDPA’s “opt-in” provisions for States that comply
with specific requirements relating to the provision of post
conviction counsel. Under § 2263, the limitations period is
tolled “from the date on which the first petition for post
conviction review or other collateral relief is filed until the
final State court disposition of such petition.” § 2263(b)(2).
Lawrence concedes that under this language there would be
no tolling for certiorari petitions seeking review of state
postconviction applications. And although he correctly
notes that the language in § 2263 differs from the language of
§ 2244(d)(2), it is clear that the language used in both sections
provides that tolling hinges on the pendency of state review.
See § 2263(b)(2) (“until the final State court disposition of
such petition”); § 2244(d)(2) (“a properly filed application for
State post-conviction or other collateral review . . . is pend
ing”). Given Congress’ clear intent in § 2263 to provide toll
ing for certiorari petitions on direct review but not for cer
tiorari petitions following state postconviction review, it is
not surprising that Congress would make the same distinc
tion in § 2244.
Lawrence also argues that our interpretation would result
in awkward situations in which state prisoners have to file
federal habeas applications while they have certiorari peti
tions from state postconviction proceedings pending before
this Court. But these situations will also arise under the
express terms of § 2263, and Lawrence admits that Congress
intended that provision to preclude tolling for certiorari peti
tions. Brief for Petitioner 22. Because Congress was not

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
335 Cite as: 549 U. S. 327 (2007)
Opinion of the Court
concerned by this potential for awkwardness in § 2263, there
is no reason for us to construe the statute to avoid it in
§ 2244(d)(2).
Contrary to Lawrence’s suggestion, our interpretation of
§ 2244(d)(2) results in few practical problems. As Justice
Stevens has noted, “this Court rarely grants review at this
stage of the litigation even when the application for state
collateral relief is supported by arguably meritorious federal
constitutional claims,” choosing instead to wait for “federal
habeas proceedings.” Kyles v. Whitley, 498 U. S. 931, 932
(1990) (opinion concurring in denial of stay of execution).
Thus, the likelihood that the District Court will duplicate
work or analysis that might be done by this Court if we
granted certiorari to review the state postconviction pro
ceeding is quite small. And in any event, a district court
concerned about duplicative work can stay the habeas appli
cation until this Court resolves the case or, more likely, de
nies the petition for certiorari.
Lawrence argues that even greater anomalies result from
our interpretation when the state court grants relief to a
prisoner and the state petitions for certiorari. In that hypo
thetical, Lawrence maintains that the prisoner would argua
bly lack standing to file a federal habeas application immedi
ately after the state court’s judgment (because the state
court granted him relief) but would later be time barred
from filing a federal habeas application if we granted certio
rari and the State prevailed. Again, this particular proce
dural posture is extremely rare. Even so, equitable tolling
may be available, in light of the arguably extraordinary cir
cumstances and the prisoner’s diligence. See Pace v. Di-
Guglielmo, 544 U. S. 408, 418, and n. 8 (2005).3 We cannot
base our interpretation of the statute on an exceedingly rare
inequity that Congress almost certainly was not contemplat
ing and that may well be cured by equitable tolling.
3 As discussed below, we assume, as the parties do, the availability of
equitable tolling under § 2244.

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
336 LAWRENCE v. FLORIDA
Opinion of the Court
In contrast to the hypothetical problems identified by
Lawrence, allowing the statute of limitations to be tolled by
certiorari petitions would provide incentives for state pris
oners to file certiorari petitions as a delay tactic. By filing a
petition for certiorari, the prisoner would push back § 2244’s
deadline while we resolved the petition for certiorari. This
tolling rule would provide an incentive for prisoners to file
certiorari petitions—regardless of the merit of the claims as
serted—so that they receive additional time to file their ha
beas applications.
III
Lawrence also argues that equitable tolling applies to his
otherwise untimely claims. We have not decided whether
§ 2244(d) allows for equitable tolling. See ibid. Because
the parties agree that equitable tolling is available, we as
sume without deciding that it is. To be entitled to equitable
tolling, Lawrence must show “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circum
stance stood in his way” and prevented timely filing. Id.,
at 418.
Lawrence makes several arguments in support of his con
tention that equitable tolling applies to his case. First, he
argues that legal confusion about whether AEDPA’s limita
tions period is tolled by certiorari petitions justifies equita
ble tolling. But at the time the limitations period expired
in Lawrence’s case, the Eleventh Circuit and every other
Circuit to address the issue agreed that the limitations pe
riod was not tolled by certiorari petitions. See, e. g., Coates,
211 F. 3d, at 1227. The settled state of the law at the rele
vant time belies any claim to legal confusion.
Second, Lawrence argues that his counsel’s mistake in mis
calculating the limitations period entitles him to equitable
tolling. If credited, this argument would essentially equita
bly toll limitations periods for every person whose attorney
missed a deadline. Attorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
337 Cite as: 549 U. S. 327 (2007)
Ginsburg, J., dissenting
postconviction context where prisoners have no constitu
tional right to counsel. E. g., Coleman v. Thompson, 501
U. S. 722, 756–757 (1991).
Third, Lawrence argues that his case presents special cir
cumstances because the state courts appointed and super
vised his counsel. But a State’s effort to assist prisoners in
postconviction proceedings does not make the State account
able for a prisoner’s delay. Lawrence has not alleged that
the State prevented him from hiring his own attorney or
from representing himself. It would be perverse indeed if
providing prisoners with postconviction counsel deprived
States of the benefit of the AEDPA statute of limitations.
See, e. g., Duncan, 533 U. S., at 179 (“The 1-year limitation
period of § 2244(d)(1) quite plainly serves the well-recognized
interest in the finality of state court judgments”).
Fourth, Lawrence argues that his mental incapacity justi
fies his reliance upon counsel and entitles him to equitable
tolling. Even assuming this argument could be legally cred
ited, Lawrence has made no factual showing of mental inca
pacity. In sum, Lawrence has fallen far short of showing
“extraordinary circumstances” necessary to support equita
ble tolling.
IV
The Court of Appeals correctly determined that the filing
of a petition for certiorari before this Court does not toll the
statute of limitations under § 2244(d)(2). It also correctly
declined to equitably toll the limitations period in the factual
circumstances of Lawrence’s case. For these reasons, the
judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens, Jus
tice Souter, and Justice Breyer join, dissenting.
The Court today concludes that an application for state
postconviction review “no longer exists”—and therefore is

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
338 LAWRENCE v. FLORIDA
Ginsburg, J., dissenting
not “pending”—once it has been decided by a State’s highest
court. Ante, at 332. What remains, the majority reasons,
is a “separate” certiorari proceeding pending before this
Court. Ibid. But petitions for certiorari do not exist in a
vacuum; they arise from actions instituted in lower courts.
When we are asked to review a state court’s denial of habeas
relief, we consider an application for that relief—not an ap
plication for federal habeas relief. Until we have disposed
of the petition for certiorari, the application remains live as
one for state postconviction relief; it is not transformed into
a federal application simply because the state-court applicant
petitions for this Court’s review.1
I would therefore hold that 28 U. S. C. § 2244(d)’s statute
of limitations is tolled during the pendency of a petition for
certiorari.2 Congress instructed that the one-year limita
tion period for filing a habeas petition in the appropriate
federal district court does not include “[t]he time during
which a properly filed application for State post-conviction or
other collateral review . . . is pending.” § 2244(d)(2). That
provision can and should be read to continue statutory toll
ing until this Court has either decided or denied a petition
for certiorari addressed to the state court’s disposition of an
application for postconviction relief. See Carey v. Saffold,
536 U. S. 214, 219–220 (2002) (“pending” means “in continu
1 It is unclear just what the majority thinks we are considering when
we address a state habeas petition on certiorari. We are certainly not
deciding a petition for federal habeas relief. See 28 U. S. C. § 2254 (au
thorizing applications by persons in state custody for federal habeas re
view). And though we can entertain original habeas petitions, see Felker
v. Turpin, 518 U. S. 651, 660 (1996), a petition for certiorari from a state
court judgment does not fall within that category.
2 I would not reach in this proceeding cases in which a petitioner does
not seek certiorari review of the state court’s judgment—i. e., cases pre
senting the question whether tolling ends with the decision of the State’s
highest court or with the expiration of the time to file a petition for certio
rari. That question is not presented here, for Lawrence timely sought
this Court’s review of the denial of state postconviction relief.

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
339 Cite as: 549 U. S. 327 (2007)
Ginsburg, J., dissenting
ance” or “not yet decided” (internal quotation marks omit
ted)). The majority’s contrary reading of § 2244(d)(2) cuts
short the tolling period before this Court has had an oppor
tunity to consider an application for state postconviction re
lief. That reading, I conclude, is neither a necessary nor a
proper interpretation of the statute.
I
Two other provisions in the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1217, 1223—
§§ 2244(d)(1) and 2263(b)(2)—bear on the proper interpreta
tion of § 2244(d)(2). The first of these, § 2244(d)(1)(A), tells
us when AEDPA’s statute of limitations begins to run; it
states that the trigger is “the date on which the judgment
[of conviction] became final by the conclusion of direct re
view or the expiration of the time for seeking such re
view.” Congress thus explicitly ordered that the clock
starts, following a state conviction, when the time to file a
petition for certiorari expires or, if a petition is filed, when
it is decided or denied. See Clay v. United States, 537 U. S.
522, 527–529, and n. 3 (2003).
According to the majority, § 2244(d)(2) cannot be inter
preted similarly to encompass this Court’s review because
the text of that provision “refers exclusively to ‘State post
conviction or other collateral review.’ ” Ante, at 333 (em
phasis in original). In fact, § 2244(d)(2) refers to an “appli
cation for State post-conviction or other collateral review.”
(Emphasis added.) And it tolls the limitation period while
the application is “pending,” not while it is “pending in State
court.” See § 2244(d)(2). Just as a judgment of conviction
is not “final” until we have declined review or decided the
case on the merits, see Clay, 537 U. S., at 527–530 (interpret
ing § 2255), so an application for state habeas relief is sensi
bly understood to remain “pending” until we have disposed
of the case. It is a fundamental characteristic of our federal
system that this Court has appellate jurisdiction over state

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
340 LAWRENCE v. FLORIDA
Ginsburg, J., dissenting
court decisions implicating federal law or the Constitution.
Until we have exercised that jurisdiction or declined to do so
the case is not finally decided. See supra, at 338, and n. 1.3
In support of its opposing view, the majority emphasizes
that § 2244(d)(2) does not include the words “time for seeking
. . . review,” words included in § 2244(d)(1)(A). This dif
ference in phrasing, the majority reasons, indicates that
Congress intended to cut off tolling as soon as the high
est state court renders its judgment, well before a petition
for review is filed in this Court.4 But the wording of
§ 2244(d)(2), I am persuaded, is more appropriately con
trasted with § 2263(b)(2), which prescribes a parallel tolling
rule for “opt-in” capital cases. Section 2263(b)(2), unlike the
provision at issue here, leaves no doubt that Congress in
tended to exclude from the tolling period the time for filing
a petition for certiorari. It provides that the statute of limi
tations tolls “from the date on which the first petition for
post-conviction review or other collateral relief is filed until
the final State court disposition of such petition.” (Empha
sis added.) Section 2263(b)(2) thus demonstrates that when
Congress wanted to cut off tolling immediately upon the final
3 The majority inappropriately relies on Carey v. Saffold, 536 U. S. 214,
220 (2002), for the proposition that a state postconviction application re
mains pending only until the State’s postconviction procedures are com
plete. Ante, at 332. Though Carey affirmed that tolling continues
throughout the State’s own postconviction procedures, it did not hold that
(or even consider whether) the time for seeking certiorari from this Court
was excluded from the tolling period.
4 Notably, in Clay v. United States, 537 U. S. 522, 527–530 (2003), we
rejected the contention that the absence of the phrase “time for seeking
. . . review” from another provision changed the meaning of “final.” Sec
tion 2255, ¶ 6(1), refers simply to “the date on which the judgment of
conviction becomes final” and not to “the date on which the judgment
became final by the conclusion of direct review or the expiration of the
time for seeking such review.” Nevertheless, we held that a judgment of
conviction becomes final when the time expires for filing a petition for
certiorari. Id., at 525, 528.

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
341 Cite as: 549 U. S. 327 (2007)
Ginsburg, J., dissenting
state-court decision—i. e., to exclude this Court’s review
from the tolling period—it simply said so.
One can understand why Congress might have chosen an
uncommon rule for the special capital cases covered by
§§ 2261–2263, a separate chapter of the statute. By termi
nating tolling upon final state-court disposition, rather than
extending the period during the pendency of a certiorari
petition, Congress eliminated one source of delay in imple
menting the death penalty. But Congress provided that
the shortened tolling period would apply only to petitions
brought by prisoners in States that have established a mech
anism for providing counsel in postconviction proceedings.
See § 2261. An attorney, of course, is better equipped than
a pro se petitioner to clear procedural hurdles, including
shortened timelines.5 Given the exceptional character of
the opt-in category, § 2244(d)(2) is more appropriately aligned
with § 2244(d)(1)(A), the provision immediately preceding it,
than with § 2263(b)(2).
The majority maintains that if an application for state
postconviction review were considered to be “pending” while
a certiorari petition remained before this Court, then a state
prisoner could not exhaust state postconviction remedies
without filing a petition for certiorari. Ante, at 332–333.
But exhaustion and tolling serve discrete functions and need
not be synchronized. The former is a prerequisite to filing
for habeas relief in federal court. Exhaustion promotes
principles of comity and federalism by giving state courts
the first opportunity to adjudicate claims of state prisoners;
that doctrine, however, does not necessitate this Court’s re
view of the state court’s determination. See O’Sullivan v.
Boerckel, 526 U. S. 838, 844 (1999) (“Comity . . . dictates that
when a prisoner alleges that his continued confinement for a
5 Matching § 2263(b)(2)’s abbreviated tolling period, § 2263(a) provides
for a shorter statute of limitations. Compare § 2244(d)(1) (“A 1-year pe
riod of limitation shall apply to an application for a writ of habeas cor
pus . . . .”) with § 2263(a) (establishing a 180-day period of limitation).

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
342 LAWRENCE v. FLORIDA
Ginsburg, J., dissenting
state court conviction violates federal law, the state courts
should have the first opportunity to review this claim and
provide any necessary relief.”). Tolling, in contrast, con
cerns the time within which a procedural move must be
made, not the issues that must be raised before a particular
tribunal. And while one purpose of tolling is to allow ade
quate time for exhaustion, that is not the sole objective.
Tolling in the context here involved also protects a litigant’s
ability to pursue his or her federal claims in a federal forum
and avoids simultaneous litigation in more than one court—
objectives undercut by today’s decision. See infra this
page and 343–345.
Duncan v. Walker, 533 U. S. 167 (2001), does not suggest
a different result. Cf. ante, at 332–333. In Duncan, we
held that a federal habeas petition does not toll § 2244(d)(1)’s
limitation period because “an application for federal habeas
corpus review is not an application for State post-conviction
or other collateral review within the meaning of 28 U. S. C.
§ 2244(d)(2).” 533 U. S., at 181 (internal quotation marks
omitted). But, unlike a federal habeas petition, an applica
tion for state habeas review undoubtedly is “an application
for State post-conviction review.” This is so whether the
application is under review in a state appellate court or is
the subject of a petition seeking certiorari from this Court.
II
Not only is the majority’s reading of § 2244(d)(2) unwar
ranted, it will also spark the simultaneous filing of two plead
ings seeking essentially the same relief. A petitioner denied
relief by a State’s highest court will now have to file, con
temporaneously, a petition for certiorari in this Court and a
habeas petition in federal district court. Only by expedi
tiously filing for federal habeas relief will a prisoner ensure
that the limitation period does not run before we have dis
posed of his or her petition for certiorari. Protective peti
tions will be essential, too, when we grant review of a state

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
343 Cite as: 549 U. S. 327 (2007)
Ginsburg, J., dissenting
court’s ruling on a state habeas petition, for many months
can elapse between the date we agree to hear a case and the
date we issue an opinion.6 Consequently, the same claims
will be pending in two courts at once, and the duplication
will occasion administrative problems; for example, no deci
sion, law, or rule tells us in which court the record in the
case should be lodged. See this Court’s Rule 12, ¶ 7 (“The
clerk of the court having possession of the record shall keep
it until notified by the Clerk of this Court to certify and
transmit it.”). There is no indication that Congress in
tended to burden the court system or litigants with such pre
mature filings.7
The anticipatory filing in a federal district court will be all
the more anomalous when a habeas petitioner prevails in
state court and the State petitions for certiorari. Under the
6 See, e. g., Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006) (certiorari
petition filed on June 7, 2005, and decided 386 days later on June 28, 2006);
Deck v. Missouri, 544 U. S. 622 (2005) (certiorari petition filed on July 15,
2004, and decided 312 days later on May 23, 2005).
7 The majority regards the practical problems as inconsequential for we
rarely grant certiorari in state habeas proceedings. Ante, at 335. For
this proposition, the Court cites a pre-AEDPA case in which Justice Ste
vens noted that federal habeas proceedings were generally the more ap
propriate avenue for our consideration of federal constitutional claims.
See Kyles v. Whitley, 498 U. S. 931, 932 (1990) (opinion concurring in denial
of stay of execution). Since AEDPA, however, our consideration of state
habeas petitions has become more pressing. Under AEDPA’s standard of
review, a petitioner who has suffered a violation of a constitutional right
will nonetheless fail on federal habeas unless the state court’s decision
“was contrary to, or involved an unreasonable application of, clearly estab
lished Federal law, as determined by [this] Court,” § 2254(d)(1), or “was
based on an unreasonable determination of the facts,” § 2254(d)(2). Even
if rare, the importance of our review of state habeas proceedings is evi
dent. See, e. g., Deck, 544 U. S., at 624 (granting review of state habeas
petition and holding that the Constitution forbids the use of visible shack
les during guilt and penalty phase unless justified by an essential state
interest); Roper v. Simmons, 543 U. S. 551, 578 (2005) (granting review of
state habeas petition and holding that execution of individuals under age
of 18 is prohibited by the Eighth and Fourteenth Amendments).

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
344 LAWRENCE v. FLORIDA
Ginsburg, J., dissenting
majority’s decision, it appears, the petitioner will be obliged
to file a protective petition in federal court even though he
gained relief from the state tribunal. Lawrence questions
whether the federal courts would even have jurisdiction over
such a bizarre petition. See ante, at 335. While I incline
to the view that a prisoner in such a position would have
standing, Lawrence’s concerns are at least plausible and
raise the specter of a habeas petitioner prevailing in state
court, yet losing the right to pursue constitutional claims
in federal court altogether: By the time we have ruled on
the State’s petition, the statute of limitations likely would
have run.
Though recognizing this problem, the majority suggests
that equitable tolling may provide a solution. But in the
next breath, the majority hastens to clarify that the Court
does not hold that equitable tolling is available under
AEDPA. Ante, at 335, and n. 3.8
By contrast, no similar problems, practical or jurisdic
tional, would result from a determination that an application
for state postconviction review remains “pending” while a
petition for certiorari from the state court’s decision is before
this Court. Nor would such a determination create an unto
ward opportunity for abuse of the writ. The majority’s sug
gestion that prisoners would have an incentive to petition
for certiorari as a delay tactic has no basis in reality in the
mine run of cases. Most prisoners want to be released from
custody as soon as possible, not to prolong their incarcera
tion. They are therefore interested in the expeditious reso
lution of their claims.9
As earlier indicated, see supra, at 342–343 and this page,
under the majority’s rule, a petitioner could achieve the
8 Satisfied that statutory tolling covers this case, I do not address peti
tioner’s alternative argument for equitable tolling.
9 Though capital petitioners may be aided by delay, they are a small
minority of all petitioners. In this case, moreover, there is no indication
that Lawrence was intentionally dilatory. See ante, at 330, n. 1.

549US2 Unit: $U16 [03-28-10 12:22:07] PAGES PGT: OPIN
345 Cite as: 549 U. S. 327 (2007)
Ginsburg, J., dissenting
equivalent of tolling by filing a protective petition in federal
court and seeking a stay while a certiorari petition is pend
ing. See ante, at 335; cf. Rhines v. Weber, 544 U. S. 269,
278–279 (2005) (a prisoner seeking state postconviction relief
may file a protective petition in federal court and ask the
court to stay and abey the federal proceedings until state
remedies are exhausted). In that event, today’s decision
does nothing to promote the finality of state-court determi
nations or the expeditious resolution of claims. Rather, it
imposes an unnecessary administrative burden on federal
district judges who must determine whether to grant a re
quested stay, and it sets a trap for those pro se litigants
unaware of the need to file duplicative petitions.
In sum, the majority’s reading is neither compelled by the
text of § 2244(d)(2) nor practically sound. By cutting off toll
ing before this Court has had an opportunity to consider a
pending petition for certiorari, the Court’s holding will un
necessarily encumber the federal courts with anticipatory
filings and deprive unwitting litigants of the opportunity to
pursue their constitutional claims—all without furthering
the purposes of AEDPA.
* * *
For the reasons stated, I would hold that petitioner Law
rence qualifies for statutory tolling under § 2244(d)(2), and
would therefore reverse the Eleventh Circuit’s judgment.