523 U.S.

637
118 S.Ct. 1618
140 L.Ed.2d 849

Terry STEWART, Director, Arizona Department of

Correction, et al., Petitioners,
v.
Ramon MARTINEZ-VILLAREAL.
No. 97-300.

Supreme Court of the United States

Argued Feb. 25, 1998.
Decided May 18, 1998.

Syllabus *
Respondent was convicted of first-degree murder and sentenced to death.
His direct appeals and habeas petitions in the Arizona state courts were
unsuccessful, and his first three federal habeas petitions were denied on
the ground that he had not exhausted his state remedies. In his fourth
federal habeas petition, he claimed, inter alia, that he was incompetent to
be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91
L.Ed.2d 335. The District Court dismissed that claim as premature, but
granted the writ on other grounds. In reversing the granting of the writ,
the Ninth Circuit explained that its ruling was not intended to affect later
litigation of the Ford claim. On remand, respondent moved to reopen his
petition, fearing that review of his Ford claim might be foreclosed by the
newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA),
which establishes a "gatekeeping'' mechanism for the consideration of
"second or successive [federal] habeas corpus applications,'' Felker v.
Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827; 28 U.S.C.A.
2244(b). Under AEDPA, a prisoner must ask the appropriate court of
appeals to direct the district court to consider such an application,
2244(b)(3)(A), and a court of appeals' decision whether to authorize an
application's filing is not appealable and cannot be the subject of a petition
for rehearing or a writ of certiorari, 2244(b)(3)(E). The District Court
denied the motion. Subsequently, Arizona obtained a warrant for
respondent's execution, and the state courts found him fit to be executed.
The District Court denied another motion to reopen his Ford claim,

holding that it lacked jurisdiction under AEDPA. He then asked the Ninth
Circuit for permission to file a successive habeas application. That court
held that 2244(b) did not apply to a petition that raises only a
competency to be executed claim and that respondent did not, therefore,
need authorization to file his petition in the District Court.
Held:
1.Because respondent's claim was not a "second or successive'' petition
under 2244(b), this Court has jurisdiction to review the Ninth Circuit's
judgment on the State's certiorari petition. The fact that this was the
second time that respondent asked the federal courts to provide relief on
his Ford claim does not mean that there were two separate applications,
the second of which was necessarily subject to 2244(b). There was only
one application for habeas relief, and the District Court ruled (or should
have ruled) on each claim when it became ripe. Since respondent was
entitled to an adjudication of all of the claims presented in his earlier,
undoubtedly reviewable, application, the Ninth Circuit correctly held that
he was not required to get authorization to file a "second or successive''
application before his Ford claim could be heard. Accepting the State's
interpretation-that once an individual has one fully litigated habeas
petition, his new petition must be treated as successive-would have far
reaching and seemingly perverse implications for habeas practice. This
Court's cases have never suggested that a prisoner whose habeas petition
was dismissed for failure to exhaust state remedies, and who then did
exhaust those remedies and returned to federal court, was by such action
filing a successive petition. A court would adjudicate those claims under
the same standard as would govern those made in any other first petition.
Respondent's Ford claim-previously dismissed as premature-should be
treated in the same manner, for, in both situations, the habeas petitioner
does not receive an adjudication of his claim. To hold otherwise would
mean that a dismissal of a first habeas petition for technical procedural
reasons, having nothing to do with the claim's merits, would bar the
prisoner from ever obtaining federal habeas review. The State's reliance
on Felker v. Turpin, supra, for a contrary interpretation is misplaced. Pp.
____-____.
2.For the same reasons that this Court finds it has jurisdiction, it finds that
the Ninth Circuit correctly decided that respondent was entitled to a
hearing on the merits of his Ford claim in the District Court. P. ____.
118 F.3d 628, affirmed.

REHNQUIST, C. J., delivered the opinion of the Court, in which

STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which
THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which
SCALIA, J., joined.
Bruce M. Ferg, Tucson, AZ, for petitioners.
Denise L. Young, Lakewood, OH, for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.

In Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d
335 (1986) we held that "the Eighth Amendment prohibits a State from
inflicting the penalty of death upon a prisoner who is insane.'' In this case, we
must decide whether respondent Martinez-Villareal's Ford claim is subject to
the restrictions on "second or successive'' applications for federal habeas relief
found in the newly revised 28 U.S.C.A. 2244 (Supp.1997). We conclude that
it is not.

Respondent was convicted on two counts of first-degree murder and sentenced

to death. He unsuccessfully challenged his conviction and sentence on direct
appeal in the Arizona state courts. Arizona v. Martinez-Villareal, 145 Ariz. 441,
702 P.2d 670, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324
(1985). He then filed a series of petitions for habeas relief in state court, all of
which were denied. He also filed three petitions for habeas relief in federal
court, all of which were dismissed on the ground that they contained claims on
which the state remedies had not yet been exhausted.

In March 1993 respondent filed a fourth habeas petition in federal court. In

addition to raising other claims, respondent also asserted that he was
incompetent to be executed. Counsel for the State urged the District Court to
dismiss respondent's Ford claim as premature. The court did so but granted the
writ on other grounds. The Court of Appeals for the Ninth Circuit reversed the
District Court's granting of the writ but explained that its instruction to enter
judgment denying the petition was not intended to affect any later litigation of
the Ford claim. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1309, n. 1 (C.A.9
1996).

On remand to the District Court, respondent, fearing that the newly enacted
Antiterrorism and Effective Death Penalty Act (AEDPA) might foreclose

review of his Ford claim, moved the court to reopen his earlier petition. In
March 1997 the District Court denied the motion and reassured respondent that
it had ""no intention of treating the [Ford] claim as a successive petition.'''
Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (C.A.9 1997). Shortly
thereafter, the State obtained a warrant for respondent's execution. Proceedings
were then held in the Arizona Superior Court on respondent's mental condition.
That court concluded that respondent was fit to be executed. The Arizona
Supreme Court rejected his appeal of that decision.
5

Respondent then moved in the Federal District Court to reopen his Ford claim.
He challenged both the conclusions reached and the procedures employed by
the Arizona state courts. Petitioner responded that under AEDPA, the court
lacked jurisdiction. The District Court agreed with petitioner, ruling on May 16,
1997, that it did not have jurisdiction over the claim. Respondent then moved in
the Court of Appeals for permission to file a successive habeas corpus
application. 2244(b)(3).

The Court of Appeals stayed respondent's execution so that it could consider his
request. It later held that 2244(b) did not apply to a petition that raises only a
competency to be executed claim and that respondent did not, therefore, need
authorization to file the petition in the District Court. It accordingly transferred
the petition that had been presented to a member of that court back to the
District Court. Martinez-Villareal, 118 F.3d, at 634-635.

We granted certiorari to resolve an apparent conflict between the Ninth Circuit

and the Eleventh Circuit on this important question of federal law. See, e.g., In
re Medina, 109 F.3d 1556 (C.A.11 1997).

Before reaching the question presented, however, we must first decide whether
we have jurisdiction over this case. In AEDPA, Congress established a
"gatekeeping'' mechanism for the consideration of "second or successive habeas
corpus applications'' in the federal courts. Felker v. Turpin, 518 U.S. 651, ----,
116 S.Ct. 2333, 2337, 135 L.Ed.2d 827 (1996); 2244(b). An individual
seeking to file a "second or successive'' application must move in the
appropriate court of appeals for an order directing the district court to consider
his application. 2244(b)(3)(A). The court of appeals then has 30 days to
decide whether to grant the authorization to file. 2244(b)(3)(D). A court of
appeals' decision whether to grant authorization "to file a second or successive
application shall not be appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.'' 2244(b)(3)(E).

If the Court of Appeals in this case had granted respondent leave to file a

If the Court of Appeals in this case had granted respondent leave to file a
second or successive application, then we would be without jurisdiction to
consider the State's petition and would have to dismiss the writ. This is not,
however, what the Court of Appeals did. The Court of Appeals held that the
2244(b) restrictions simply do not apply to respondent's Ford claim, and that
there was accordingly no need for him to apply for authorization to file a
second or successive petition. We conclude today that the Court of Appeals
reached the correct result in this case, and that we therefore have jurisdiction to
consider the State's petition.
Section 2244(b) provides:

10

" (b)(1) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be dismissed.

11

" (2) A claim presented in a second or successive habeas corpus application

under section 2254 that was not presented in a prior application shall be
dismissed unless-

12

" (A) the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable; or

13

" (B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and

14

" (ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.''

15respondent's current request for relief is a "second or successive'' application, then

If
it plainly should have been dismissed. The Ford claim had previously been
presented in the 1993 petition, and would therefore be subject to dismissal under (b)
(1)(A). Even if we were to consider the Ford claim to be newly presented in the
1997 petition, it does not fit within either of (b)(2)(B)'s exceptions, and dismissal
would still be required.
16

The State contends that because respondent has already had one "fully-litigated
habeas petition, the plain meaning of 2244(b) as amended requires his new
petition to be treated as successive.'' Brief for Petitioner 12. Under that reading
of the statute, respondent is entitled to only one merits judgment on his federal

habeas claims. Because respondent has already presented a petition to the

District Court, and the District Court and the Court of Appeals have acted on
that petition, 2244(b) must apply to any subsequent request for federal habeas
relief.
17

But the only claim on which respondent now seeks relief is the Ford claim that
he presented to the District Court, along with a series of other claims, in 1993.
The District Court, acting for the first time on the merits of any of respondent's
claims for federal habeas relief, dismissed the Ford claim as premature, but
resolved all of respondent's other claims, granting relief on one. The Court of
Appeals subsequently reversed the District Court's grant of relief. At that point
it became clear that respondent would have no federal habeas relief for his
conviction or his death sentence, and the Arizona Supreme Court issued a
warrant for his execution. His claim then unquestionably ripe, respondent
moved in the state courts for a determination of his competency to be executed.
Those courts concluded that he was competent, and respondent moved in the
federal district court for review of the state court's determination.

18

This may have been the second time that respondent had asked the federal
courts to provide relief on his Ford claim, but this does not mean that there
were two separate applications, the second of which was necessarily subject to
2244(b). There was only one application for habeas relief, and the District
Court ruled (or should have ruled) on each claim at the time it became ripe.
Respondent was entitled to an adjudication of all of the claims presented in his
earlier, undoubtedly reviewable, application for federal habeas relief. The Court
of Appeals was therefore correct in holding that respondent was not required to
get authorization to file a "second or successive'' application before his Ford
claim could be heard.

19

If the State's interpretation of "second or successive'' were correct, the

implications for habeas practice would be far-reaching and seemingly perverse.
In Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438
(1971), we said:

20

It has been settled since Ex Parte Royall, 117 U.S. 241, [6 S.Ct. 734, 29 L.Ed.
868] (1886), that a state prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition for habeas corpus . . .
. The exhaustion-of-state-remedies doctrine, now codified in the federal habeas
statute, 28 U.S.C. 2254(b) and (c), reflects a policy of federal-state comity . .
. . It follows, of course, that once the federal claim has been fairly presented to
the state courts, the exhaustion requirement is satisfied.

21

Later, in Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d
379 (1982), we went further and held that "a district court must dismiss habeas
petitions containing both unexhausted and exhausted claims.'' But none of our
cases expounding this doctrine have ever suggested that a prisoner whose
habeas petition was dismissed for failure to exhaust state remedies, and who
then did exhaust those remedies and returned to federal court, was by such
action filing a successive petition. A court where such a petition was filed could
adjudicate these claims under the same standard as would govern those made in
any other first petition.

22

We believe that respondent's Ford claim here-previously dismissed as

premature-should be treated in the same manner as the claim of a petitioner
who returns to a federal habeas court after exhausting state remedies. True, the
cases are not identical; respondent's Ford claim was dismissed as premature,
not because he had not exhausted state remedies, but because his execution was
not imminent and therefore his competency to be executed could not be
determined at that time. But in both situations, the habeas petitioner does not
receive an adjudication of his claim. To hold otherwise would mean that a
dismissal of a first habeas petition for technical procedural reasons would bar
the prisoner from ever obtaining federal habeas review. See, e.g., United States
ex rel. Barnes v. Gilmore, 968 F.Supp. 384, 385 (N.D.Ill.1997) ("If Barnes
continues in his nonpayment of the required $5 filing fee . . . this Court will be
constrained to dismiss his petition''); Marsh v. United States District Court for
the Northern District of California, 1995 WL 23942 (N.D.Cal., Jan. 9, 1995)
("Because petitioner has since not paid the filing fee nor submitted a signed
affidavit of poverty, the petition for writ of habeas corpus is dismissed without
prejudice''); Taylor v. Mendoza, 1994 WL 698493 (N.D.Ill., Dec. 12, 1994). *

23

The State places great reliance on our decision in Felker v. Turpin, 518 U.S.
651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), but we think that reliance is
misplaced. In Felker we stated that the "new restrictions on successive petitions
constitute a modified res judicata rule, a restraint on what used to be called in
habeas corpus practice "abuse of the writ.''' 518 U.S., at 664, 116 S.Ct., at 2340.
It is certain that respondent's Ford claim would not be barred under any form of
res judicata. Respondent brought his claim in a timely fashion, and it has not
been ripe for resolution until now.

24

Thus, respondent's Ford claim was not a "second or successive'' petition under
2244(b) and we have jurisdiction to review the judgment of the Court of
Appeals on the State's petition for certiorari. But for the same reasons that we
find we have jurisdiction, we hold that the Court of Appeals was correct in
deciding that respondent was entitled to a hearing on the merits of his Ford

claim in the District Court. The judgment of the Court of Appeals is therefore
25

Affirmed.

26

Justice SCALIA, with whom Justice THOMAS joins, dissenting.

27

It is axiomatic that "the power to award the writ [of habeas corpus] by any of
the courts of the United States, must be given by written law.'' Ex parte
Bollman, 4 Cranch 75, 94, 2 L.Ed. 554 (1807) (Marshall, C. J.). And it is
impossible to conceive of language that more clearly precludes respondent's
renewed competency-to-be-executed claim than the written law before us here:
a "claim presented in a second or successive habeas corpus application . . . that
was presented in a prior application shall be dismissed.'' 28 U.S.C.A. 2244(b)
(1) (Supp.1997) (emphasis added). The Court today flouts the unmistakable
language of the statute to avoid what it calls a "perverse'' result. Ante, at __.
There is nothing "perverse'' about the result that the statute commands, except
that it contradicts pre-existing judge-made law, which it was precisely the
purpose of the statute to change.

28

Respondent received a full hearing on his competency-to-be-executed claim in

state court. The state court appointed experts and held a 4-day evidentiary
hearing, after which it found respondent "aware that he is to be punished for the
crime of murder and . . . aware that the impending punishment for that crime is
death . . . . '' App. 172. Respondent appealed this determination to the Supreme
Court of Arizona, which accepted jurisdiction and denied relief. He sought
certiorari of that denial in this Court, which also denied relief. To say that it is
"perverse'' to deny respondent a second round of time-consuming lower-federalcourt review of his conviction and sentence-because that means forgoing
lower-federal-court review of a competency-to-be-executed claim that arises
only after he has already sought federal habeas on other issues-is to say that
state-court determinations must always be reviewable, not merely by this Court,
but by federal district courts. That is indeed the principle that this Court's
imaginative habeas-corpus jurisprudence had established, but it is not a
principle of natural law. Lest we forget, Congress did not even have to create
inferior federal courts, U.S. Const., Art. I, 8, cl. 9; Art. III, 1, let alone invest
them with plenary habeas jurisdiction over state convictions. And for much of
our history, as Justice THOMAS points out, post, at __, prisoners convicted by
validly constituted courts of general criminal jurisdiction had no recourse to
habeas corpus relief at all. See Wright v. West, 505 U.S. 277, 285-286, 112
S.Ct. 2482, 2486-2487, 120 L.Ed.2d 225 (1992) (opinion of THOMAS, J.).

29

It seems to me much further removed from the "perverse'' to deny second-time

29

It seems to me much further removed from the "perverse'' to deny second-time

collateral federal review than it is to treat state-court proceedings as nothing
more than a procedural prelude to federal lower-court review of state supremecourt determinations. The latter was the regime that our habeas jurisprudence
established and that AEDPA intentionally revised-to require extraordinary
showings before a state prisoner can take a second trip around the extended
district-court-to-Supreme-Court federal track. It is wrong for us to reshape that
revision on the very lathe of judge-made habeas jurisprudence it was designed
to repair.

30

Today's opinion resembles nothing so much as the cases of the 1920s which
effectively decided that the Clayton Act, designed to eliminate federal-court
injunctions against union strikes and picketing, "restrained the federal courts
from nothing that was previously proper.'' T. Powell, The Supreme Court's
Control Over the Issue of Injunctions in Labor Disputes, 13 Acad. of Pol. Sci.
Proc. 37, 74 (1928). In criticizing those cases as examples of
Gefuhlsjurisprudenz (and in insisting upon "the necessity of preferring . . . the
Gefuhl of the legislator to the Gefuuhl of the judge''), Dean Landis recalled
Dicey's trenchant observation that ""judge-made law occasionally represents
the opinion of the day before yesterday.''' Landis, A Note on "Statutory
Interpretation,'' 43 Harv. L.Rev. 886, 888 (1930), quoting A. Dicey, Law and
Opinion in England 369 (1926). As hard as it may be for this Court to swallow,
in yesterday's enactment of AEDPA Congress curbed our prodigality with the
Great Writ. The words that Landis applied to the Clayton Act fit very nicely the
statute that emerges from the Court's decision in the present case: "The
mutilated [AEDPA] bears ample testimony to the "day before yesterday' that
judges insist is today.'' 43 Harv. L.Rev., at 892. I dissent.

31

Justice THOMAS, with whom Justice SCALIA joins, dissenting.

32

From 1986 to 1991, respondent filed three petitions for federal habeas relief;
each was dismissed on the ground that respondent had not yet exhausted his
state remedies. In March 1993, respondent filed his fourth federal habeas
petition presenting, inter alia, his claim under Ford v. Wainwright, 477 U.S.
399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), that he was not competent to be
executed. Finding that some of respondent's claims were procedurally
defaulted, that others were without merit, and that respondent's Ford claim was
not ripe for decision, the Court of Appeals held that the fourth petition should
be denied. In May 1997, after the Arizona state courts rejected his Ford claim,
respondent returned for a fifth time to federal court, again arguing that he was
incompetent to be executed. Because this filing was a "second or successive
habeas corpus application,'' respondent's Ford claim should have been
dismissed. I therefore respectfully dissent.

33

Unlike the Court, I begin with the plain language of the statute. Section
2244(b)(1) provides that a "claim presented in a second or successive habeas
corpus application . . . that was presented in a prior application shall be
dismissed.'' 28 U.S.C.A. 2244(b)(1) (Supp.1998). An "application'' is a
"putting to, placing before, preferring a request or petition to or before a person.
The act of making a request for something.'' Black's Law Dictionary 98-99 (6th
ed. 1990); see also Webster's Ninth New Collegiate Dictionary 97 (1991)
(application is a "request, petition . . . a form used in making a request'').
Respondent's March 1993 federal habeas petition was clearly a habeas
"application'' (the Court concedes as much), because it placed before the
District Court respondent's request for a writ of habeas corpus. Once this
application was denied, however, none of respondent's claims for reliefincluding his claim that he was incompetent to be executed-remained before the
Court. It was thus necessary for respondent to file a new request for habeas
relief so that his Ford claim would again be "pu[t] to'' or "plac[ed] before'' the
District Court. (The Court certainly did not raise respondent's Ford claim sua
sponte.) Respondent's May 1997 request for relief was therefore a habeas
application distinct from his earlier requests for relief, and it was thus
undoubtedly "second or successive.''

34

Respondent's Ford claim was also "presented'' in both his March 1993 and his
May 1997 habeas applications. To "present'' is "to bring or introduce into the
presence of someone'' or "to lay (as a charge) before a court as an object of
inquiry.'' Webster's Ninth New Collegiate Dictionary 930 (1991). Respondent
clearly "presented'' his Ford claim in both his 1993 and his 1997 habeas
applications, for in each he introduced to the District Court his argument that he
is not competent to be executed. Under the plain meaning of the statute,
therefore, respondent's Ford claim was a "claim presented in a second or
successive habeas corpus application . . . that was presented in a prior
application.'' 2244(b)(1).

35

The reasons offered by the Court for disregarding the plain language of the
statute are unpersuasive. Conceding that " [t]his may have been the second time
that respondent had asked the federal courts to provide relief on his Ford
claim,'' ante, at __, the Court nevertheless concludes that respondent has really
filed only "one application for habeas relief.'' Ibid. (emphasis added). The
District Court, however, did not hold respondent's Ford claim in abeyance when
it denied his March 1993 habeas petition, so that claim was no longer before
the District Court in May 1997. At best, then, respondent's May 1997 filing was
an effort to reopen his Ford claim. But that filing (which is most definitely an
"application'') is subject to the statutory requirements for second or successive
habeas applications. As we have recently stated in a closely related context:

36

" [A]prisoner's motion to recall the mandate on the basis of the merits of the
underlying decision can be regarded as a second or successive application for
purposes of 2244(b). Otherwise, petitioners could evade the bar against
relitigation of claims presented in a prior application, 2244(b)(1), or the bar
against litigation of claims not presented in a prior application, 2244(b)(2).''
Calderon v. Thompson, 523 U.S. ----, ----, 118 S.Ct. 1489, 1500, --- L.Ed.2d ---(1998).

37

In just the same way, habeas petitioners cannot be permitted to evade

2244(b)'s prohibitions simply by moving to reopen claims already presented in
a prior habeas application.

38

The Court also reasons that respondent's "Ford claim here-previously

dismissed as premature-should be treated in the same manner as the claim of a
petitioner who returns to a federal habeas court after exhausting state remedies,''
for "in both situations, the habeas petitioner does not receive an adjudication of
his claim.'' Ante, at __. Implicit in the Court's reasoning is its assumption that a
prisoner whose habeas petition has been dismissed for failure to exhaust state
remedies, and who then exhausts those remedies and returns to federal court,
has not then filed a "second or successive habeas corpus application.'' 2244(b)
(1). To be sure, "none of our cases . . . ha[s] ever suggested'' that a prisoner in
such a situation was filing a successive petition. See ante, at __. But that is
because, before enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 110 Stat. 1218, a federal court could grant relief on a
claim in a second or successive application so long as the ground for relief had
not already been "presented and determined, '' 28 U.S.C. 2244(a) (emphasis
added), or "adjudicated,'' 2244(b), in a previous application. Claims presented
in a petition dismissed for failure to exhaust are neither "determined'' nor
"adjudicated.'' Thus, the pre-AEDPA practice of permitting petitioners to raise
claims already presented in applications dismissed for failure to exhaust says
nothing about whether those later applications were considered second or
successive.

39

Even if the Court were correct that such an application would not have been
considered second or successive, such a case is altogether different from this
case, in which only one of many claims was not adjudicated. In the former
situation, the federal court dismisses the unexhausted petition without
prejudice, see Rose v. Lundy, 455 U.S. 509, 520-522, 102 S.Ct. 1198, 12041205, 71 L.Ed.2d 379 (1982), so it could be argued that the petition should be
treated as if it had never been filed. In contrast, when a court addresses a
petition and adjudicates some of the claims presented in it, that petition is
certainly an "application,'' and any future application must be "second or

successive.''1 Otherwise, the court would have adjudicated the merits of claims
that had not been presented in an "application.''2
40

Ultimately, the Court's holding is driven by what it sees as the "far-reaching

and seemingly perverse'' implications for federal habeas practice of a literal
reading of the statute. Ante, at __. Such concerns are not, in my view, sufficient
to override the statute's plain meaning. And to the extent concerns about habeas
practice motivate the Court's decision, it bears repeating that federal habeas
corpus is a statutory right and that this Court, not Congress, has expanded the
availability of the writ. Before this judicial expansion, a prisoner seeking a writ
of habeas corpus was permitted to challenge only the jurisdiction of the court
that had rendered the judgment under which he was in custody. See Wright v.
West, 505 U.S. 277, 285-286, 112 S.Ct. 2482, 2486-2487, 120 L.Ed.2d 225
(1992) (opinion of THOMAS, J.). A Ford claim obviously does not present
such a challenge.3 A statute that has the effect of precluding adjudication of a
claim that for most of our Nation's history would have been considered
noncognizable on habeas can hardly be described as "perverse.''

41

Accordingly, whether one considers respondent's March 1993 federal habeas

petition to have been his first habeas application-because his three previous
applications had been dismissed for failure to exhaust-or his fourth -because
respondent had already filed three previous habeas applications by that time-his
May 1997 request for relief was undoubtedly either a "second'' (following his
first) or "successive'' (following his fourth) habeas application. Respondent's
Ford claim, presented in this second or successive application, should have
been dismissed as a "claim . . . presented in a prior application.'' 2244(b)(1).

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.

This case does not present the situation where a prisoner raises a Ford claim for
the first time in a petition filed after the federal courts have already rejected the
prisoner's initial habeas application. Therefore, we have no occasion to decide
whether such a filing would be a "second or successive habeas corpus
application'' within the meaning of AEDPA.

If the Court's position is that respondent's May 1997 filing was an

"application,'' but not a "second or successive'' one, presumably 28 U.S.C.A.
2244(b) (Supp.1998) would not have precluded respondent from presenting,

along with his Ford claim, a claim previously adjudicated on the merits, for
2244(b) operates to bar only those claims presented in "second or successive''
applications.
2

Even if a claim dismissed without prejudice could be treated as having never

been presented, dismissal, as the Court concedes, would still be required
because a claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91
L.Ed.2d 335 (1986), does not fit within 2244(b)(2)(B)'s exceptions for claims
not presented in prior applications. See ante, at __.

There is an additional reason why a state prisoner's Ford claim may not be
cognizable on federal habeas. A state prisoner may bring a federal habeas
petition "only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.'' 28 U.S.C. 2254. A Ford
claim does not challenge either the prisoner's underlying conviction or the
legality of the sentence; it challenges when (or whether) the sentence can be
carried out.