In The

Supreme Court of the United States




Decided June 21, 2004

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 7–2
Note: No other Justices joined this opinion.
Citation: 542 U.S. 225 Docket: 03–221Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

Next opinion >< Previous opinion

DISCLAIMER: Only United States Reports are legally valid sources for Supreme Court opinions. The text below is provided for ease of access only. If you need to cite the exact text of this opinion or if you would like to view the opinions of the other Justices in this case, please view the original United States Report at the Library of Congress or Justia. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate."


Justice O’Connor, concurring.

I join the Court’s opinion because it is limited to the narrow question whether the notifications crafted by the Ninth Circuit must be given.

The propriety of the stay-and-abeyance procedure generally is not addressed. The District Court did not employ that procedure, nor did the Ninth Circuit hold that it must be applied in every case. There is, therefore, no need for us to pass on it in this case, and the Court properly avoids doing so. I note, however, that the procedure is not an idiosyncratic one; as Justice Breyer describes, post, at 3 (dissenting opinion), seven of the eight Circuits to consider it have approved stay-and-abeyance as an appropriate exercise of a district court’s equitable powers.

For the reasons given by the majority, ante, at 6–7, it is not incumbent upon a district court to establish whether the statute of limitations has already run before explaining the options available to a habeas petitioner who has filed a mixed petition. Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate. This is a question for the Ninth Circuit to consider on remand. See ante, at 8.

Supreme Court icon marking end of opinion

Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.