(Slip Opinion) OCTOBER TERM, 2011 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

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. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

GONZALEZ v. THALER, DIRECTOR, TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION
 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 10–895. Argued November 2, 2011—Decided January 10, 2012 

After the intermediate state appellate court affirmed his state-court

conviction, petitioner Gonzalez allowed his time for seeking discretionary review with the State’s highest court for criminal appeals to

expire. Roughly six weeks later, the intermediate state appellate

court issued its mandate. When Gonzalez subsequently sought federal habeas relief, the District Court dismissed Gonzalez’s petition as

time barred by the 1-year statute of limitations in the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Under 28 U. S. C. 

§2244(d)(1)(A), state prisoners have one year to file federal habeas

petitions running from “the date on which the judgment became final 

by the conclusion of direct review or the expiration of the time for

seeking such review.” The District Court held that Gonzalez’s judgment had become “final” when his time for seeking discretionary review in the State’s highest court expired, and that running the limitations period from that date, his petition was untimely.

Under AEDPA, a habeas petitioner must obtain a certificate of appealability (COA) to appeal a district court’s final order in a habeas

proceeding. 28 U. S. C. §2253(c)(1). The COA may issue only if the 

petitioner has made a “substantial showing of the denial of a constitutional right,” §2253(c)(2), and “shall indicate which specific issue”

satisfies that showing, §2253(c)(3). A Fifth Circuit judge granted 

Gonzalez a COA on the question whether his petition was timely.

The issued COA, however, failed to “indicate” a constitutional issue. 

The Fifth Circuit affirmed, holding that Gonzalez’s petition was

untimely because the limitations period begins to run for petitioners

who fail to appeal to a State’s highest court when the time for seeking 
 

 

 

 

 

2 GONZALEZ v. THALER 

Syllabus 

further direct review in the state court expires. The Fifth Circuit did 

not mention, and the State did not raise, the §2253(c)(3) defect.

When Gonzalez petitioned this Court for review, the State argued for 

the first time that the Fifth Circuit lacked jurisdiction to adjudicate 

Gonzalez’s appeal based on the §2253(c)(3) defect. 

Held: 

1. Section 2253(c)(3) is a mandatory but nonjurisdictional rule. A 

COA’s failure to “indicate” a constitutional issue does not deprive a 

Court of Appeals of jurisdiction to adjudicate the appeal. Pp. 4−13. 

(a) A rule is jurisdictional “[i]f the Legislature clearly states that 

a threshold limitation on a statute’s scope shall count as jurisdictional,” Arbaugh v. Y & H Corp., 546 U. S. 500, 515. Here, the only clear

jurisdictional language in §2253(c) appears in §2253(c)(1). The parties agree that §2253(c)(1)’s plain terms make the issuance of a COA 

a jurisdictional prerequisite. The parties also agree that §2253(c)(2), 

which speaks only to when a COA may issue and does not contain

§2253(c)(1)’s jurisdictional terms, is nonjurisdictional. It follows that 

§2253(c)(3) is also nonjurisdictional. Like §2253(c)(2), it reflects a 

threshold condition for issuing a COA, and “does not speak in jurisdictional terms or refer . . . to the jurisdiction of the [appeals] courts.” 

Arbaugh, 546 U. S., at 515. Jurisdictional treatment also would 

thwart Congress’s intent in AEDPA “to eliminate delays in the federal habeas review process.” Holland v. Florida, 560 U. S. ___, ___. 

Once a judge has determined that a COA is warranted and resources

are deployed in briefing and argument, the COA has fulfilled its

gatekeeping function. Pp. 4−9. 

(b) The State’s contrary arguments are unpersuasive. Section 

2253(c)(3)’s cross-reference to §2253(c)(1) does not mean §2253(c)(3)

can be read as part of §2253(c)(1), as Congress set off the requirements in distinct paragraphs with distinct terms. The word “shall” in 

§2253(c)(3), meanwhile, underscores the rule’s mandatory nature, but 

not all mandatory rules are jurisdictional. Nor does §2253(c)(3)’s

mere proximity to other jurisdictional provisions turn a rule that

speaks in nonjurisdictional terms into a jurisdictional hurdle. Finally, the Court rejects the State’s attempt to analogize a COA to a notice of appeal. Pp. 10−13. 

2. For a state prisoner who does not seek review in a State’s highest court, the judgment becomes “final” for purposes of §2244(d)(1)(A)

on the date that the time for seeking such review expires. Pp. 13−19. 

(a) In Clay v. United States, 537 U. S. 522, the Court held that a 

federal conviction becomes final “when this Court affirms a conviction 

on the merits on direct review or denies a petition for a writ of certiorari,” or, if a petitioner does not seek certiorari, “when the time for filing a certiorari petition expires.” Id., at 527. In Jimenez v. Quarter-
 

 

 

 

Cite as: 565 U. S. ____ (2012) 3 

Syllabus 

man, 555 U. S. 113, the Court adopted Clay’s “most natural reading 

of the statutory text” in construing “the similar language of 

§2244(d)(1)(A).” Id., at 119. The Court made no mention of when 

Jimenez’s appeal concluded and held that his judgment became final

when his time for seeking certiorari expired. Section 2244(d)(1)(A) 

thus consists of two prongs corresponding to two categories of petitioners. For petitioners pursuing direct review all the way to this 

Court, the judgment becomes final at the “conclusion of direct review,” when this Court affirms a conviction on the merits or denies 

certiorari. For all other petitioners, the judgment becomes final at 

the “expiration of the time for seeking such review,” when the time 

for pursuing direct review in this Court, or in state court, expires.

Because Gonzalez did not appeal to the State’s highest court, his 

judgment became final when his time for seeking review with that

court expired. Pp. 13–15.

(b) Gonzalez argues that courts should determine both prongs for 

every petitioner who does not seek certiorari, then start the 1-year

clock from the latest of the two dates. Gonzalez further contends that 

when a petitioner does not seek certiorari, state law should define the

“conclusion of direct review.” The words “latest of,” however, appear

in §2244(d)(1), not §2244(d)(1)(A). Nothing in §2244(d)(1)(A) contemplates any conflict between the two prongs or instructs that the later

of the two shall prevail. Gonzalez’s approach of scouring each State’s 

laws and cases to determine how the State defines finality, moreover, 

would contradict the uniform meaning of “conclusion of direct review”

that Clay and Jimenez accepted. It will be a rare situation in which a 

delay in the mandate’s issuance is so severe as to prevent a petitioner

from filing a federal habeas petition within a year or requesting a 

stay and abeyance. Finally, the Court rejects Gonzalez’s alternative

argument that his petition is timely because it was filed within a

year of when his time for seeking certiorari review expired. Pp.

15−19. 

623 F. 3d 222, affirmed. 

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, 

JJ., joined. SCALIA, J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

 

Cite as: 565 U. S. ____ (2012) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 10–895 

RAFAEL ARRIAZA GONZALEZ, PETITIONER v. RICK
 

THALER, DIRECTOR, TEXAS DEPARTMENT OF
 

CRIMINAL JUSTICE, CORRECTIONAL
 

INSTITUTIONS DIVISION 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[January 10, 2012]

 JUSTICE SOTOMAYOR delivered the opinion of the Court. 

This case interprets two provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). The 

first, 28 U. S. C. §2253(c), provides that a habeas petitioner must obtain a certificate of appealability (COA) to

appeal a federal district court’s final order in a habeas 

proceeding. §2253(c)(1). The COA may issue only if the

petitioner has made a “substantial showing of the denial of 

a constitutional right,” §2253(c)(2), and “shall indicate 

which specific issue” satisfies that showing. §2253(c)(3).

We hold that §2253(c)(3) is not a jurisdictional requirement. Accordingly, a judge’s failure to “indicate” the 

requisite constitutional issue in a COA does not deprive a

court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal.

The second provision, 28 U. S. C. §2244(d)(1)(A), establishes a 1-year limitations period for state prisoners to file 

federal habeas petitions, running from “the date on which

the judgment became final by the conclusion of direct 
 

2 GONZALEZ v. THALER 

Opinion of the Court 

review or the expiration of the time for seeking such review.” We hold that, for a state prisoner who does not 

seek review in a State’s highest court, the judgment becomes “final” on the date that the time for seeking such

review expires. 

I 

Petitioner Rafael Gonzalez was convicted of murder in 

Texas state court. The intermediate state appellate court, 

the Texas Court of Appeals, affirmed Gonzalez’s conviction

on July 12, 2006. Gonzalez then allowed his time for 

seeking discretionary review with the Texas Court of 

Criminal Appeals (Texas CCA)—the State’s highest court

for criminal appeals—to expire on August 11, 2006. Tex. 

Rule App. Proc. 68.2(a) (2011). The Texas Court of Appeals issued its mandate on September 26, 2006.

After Gonzalez, proceeding pro se, petitioned unsuccessfully for state habeas relief, he filed a federal habeas 

petition under 28 U. S. C. §2254 on January 24, 2008, in

the U. S. District Court for the Northern District of Texas. 

His petition alleged, inter alia, that the nearly 10-year 

delay between his indictment and trial violated his Sixth

Amendment right to a speedy trial. The District Court, 

without discussing Gonzalez’s constitutional claims, dismissed Gonzalez’s petition as time barred by the 1-year 

statute of limitations in §2244(d)(1)(A). Although Gonzalez argued that his judgment had not become final until 

the Texas Court of Appeals issued its mandate, the District Court held that Gonzalez’s judgment had become

final when his time for seeking discretionary review in the 

Texas CCA expired on August 11, 2006. Counting from

that date, and tolling the limitations period for the time 

during which Gonzalez’s state habeas petition was pending, Gonzalez’s limitations period elapsed on December 17, 

2007—over a month before he filed his federal habeas 

petition. The District Court denied a COA. 
 

 

 

Cite as: 565 U. S. ____ (2012) 3 

Opinion of the Court 

Gonzalez applied to the U. S. Court of Appeals for the

Fifth Circuit for a COA on two grounds: (1) his habeas

petition was timely, and (2) his Sixth Amendment speedytrial right was violated. A Court of Appeals judge granted

a COA on the question “whether the habeas application

was timely filed because Gonzalez’s conviction became 

final, and thus the limitations period commenced, on the 

date the intermediate state appellate court issued its

mandate.” App. 347. The COA did not mention the Sixth

Amendment question.

The Court of Appeals affirmed. 623 F. 3d 222 (2010).

Acknowledging that a sister Circuit had run the limitations period from the date of a state court’s issuance of a

mandate, the Court of Appeals deemed the mandate’s

issuance “irrelevant” to determining finality under 

§2244(d)(1)(A). Id., at 224, 226 (disagreeing with Riddle v. 

Kemna, 523 F. 3d 850 (CA8 2008) (en banc)). The Court of 

Appeals held that because a judgment becomes final at

“the conclusion of direct review or the expiration of the

time for seeking such review,” §2244(d)(1)(A), the limitations period begins to run for petitioners who fail to appeal 

to a State’s highest court when the time for seeking further direct review in the state court expires. The Court of 

Appeals therefore concluded that Gonzalez’s conviction

became final on August 11, 2006, and his habeas petition

was time barred. 

The Court of Appeals did not address Gonzalez’s Sixth

Amendment claim or discuss whether the COA had been 

improperly issued. Nor did the State allege any defect in 

the COA or move to dismiss for lack of jurisdiction. 

Gonzalez petitioned this Court for a writ of certiorari.

In its brief in opposition, the State argued for the first

time that the Court of Appeals lacked jurisdiction to adjudicate Gonzalez’s appeal because the COA identified only

a procedural issue, without also “indicat[ing]” a constitutional issue as required by §2253(c)(3). We granted certio-
 

 

4 GONZALEZ v. THALER 

Opinion of the Court 

rari to decide two questions, both of which implicate splits

in authority: (1) whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal, notwithstanding 

the §2253(c)(3) defect;1 and (2) whether Gonzalez’s habeas

petition was time barred under §2244(d)(1) due to the 

date on which his judgment became final.2 564 U. S. ___ 

(2011). 

II 

We first consider whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal. 

A 

Section 2253, as amended by AEDPA, governs appeals 

in habeas corpus proceedings. The first subsection, 

§2253(a), is a general grant of jurisdiction, providing that 

district courts’ final orders in habeas proceedings “shall be 

subject to review, on appeal, by the court of appeals.” 28 

U. S. C. §2253(a). The second, §2253(b), limits jurisdiction 

over a particular type of final order. See §2253(b) (“There

shall be no right of appeal from a final order in a proceeding to test the validity of a warrant [of] remov[al] . . .”). 

This case concerns the third, §2253(c), which provides: 

“(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to 

—————— 

1The Circuits have divided over whether a defect in a COA is a jurisdictional bar. Compare, e.g., Phelps v. Alameda, 366 F. 3d 722, 726 

(CA9 2004) (no); Porterfield v. Bell, 258 F. 3d 484, 485 (CA6 2001) (no); 

Young v. United States, 124 F. 3d 794, 798–799 (CA7 1997) (no), with 

United States v. Cepero, 224 F. 3d 256, 259–262 (CA3 2000) (en banc) 

(yes). 2The Circuits have divided over when a judgment becomes final if a

petitioner forgoes review in a State’s highest court. Compare, e.g., 623 

F. 3d 222, 226 (CA5 2010) (case below) (date when time for seeking

such review expires); Hemmerle v. Schriro, 495 F. 3d 1069, 1073–1074 

(CA9 2007) (same), with Riddle v. Kemna, 523 F. 3d 850, 855–856 (CA8

2008) (en banc) (date when state court issues its mandate). 
 

 

Cite as: 565 U. S. ____ (2012) 5 

Opinion of the Court 

the court of appeals . . . 

. . . . . 

“(2) A certificate of appealability may issue under 

paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 

“(3) The certificate of appealability under paragraph 

(1) shall indicate which specific issue or issues satisfy

the showing required by paragraph (2).” 

When, as here, the district court denies relief on procedural grounds, the petitioner seeking a COA must show both 

“that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable 

whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U. S. 473, 484 (2000). 

In this case, the Court of Appeals judge granted a COA

that identified a debatable procedural ruling, but did not 

“indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as 

required by §2253(c)(3). The question before us is whether 

that defect deprived the Court of Appeals of the power to

adjudicate Gonzalez’s appeal. We hold that it did not. 

This Court has endeavored in recent years to “bring

some discipline” to the use of the term “jurisdictional.” 

Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., 

at 5). Recognizing our “less than meticulous” use of the

term in the past, we have pressed a stricter distinction 

between truly jurisdictional rules, which govern “a court’s

adjudicatory authority,” and nonjurisdictional “claimprocessing rules,” which do not. Kontrick v. Ryan, 540 

U. S. 443, 454–455 (2004). When a requirement goes to

subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or

have not presented. See United States v. Cotton, 535 U. S. 

625, 630 (2002). Subject-matter jurisdiction can never be 
 

 

 

6 GONZALEZ v. THALER 

Opinion of the Court 

waived or forfeited. The objections may be resurrected at

any point in the litigation, and a valid objection may lead

a court midway through briefing to dismiss a complaint in

its entirety. “[M]any months of work on the part of the 

attorneys and the court may be wasted.” Henderson, 562 

U. S., at ___ (slip op., at 5). Courts, we have said, should 

not lightly attach those “drastic” consequences to limits 

Congress has enacted. Ibid. 

We accordingly have applied the following principle: A

rule is jurisdictional “[i]f the Legislature clearly states

that a threshold limitation on a statute’s scope shall count 

as jurisdictional.” Arbaugh v. Y & H Corp., 546 U. S. 500, 

515 (2006). But if “Congress does not rank a statutory 

limitation on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional.” Id., at 516.3 

That clear-statement principle makes particular sense in

this statute, as we consider—against the backdrop of 

§2253(a)’s clear jurisdictional grant to the courts of ap-

—————— 

3We have also held that “context, including this Court’s interpretation of similar provisions in many years past, is relevant to whether a

statute ranks a requirement as jurisdictional.” Reed Elsevier, Inc. v. 

Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 13). Here, however, 

even though the requirement of a COA (or its predecessor, the certificate of probable cause (CPC)) dates back to 1908, Congress did not 

enact the indication requirement until 1996. There is thus no “long line 

of this Court’s decisions left undisturbed by Congress” on which to rely. 

Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. 

Comm. of Adjustment, Central Region, 558 U. S. ___, ___ (2009) (slip 

op., at 13).

The issuance of a CPC, like the issuance of a COA, was jurisdictional. 

Contrary to the dissent’s assertions, post, at 8–10 (opinion of SCALIA, 

J.), that fact does not suggest that the indication requirement is jurisdictional as well. If anything, the inference runs the other way. For 

nearly a century, a judge’s granting or withholding of a CPC, absent

any indication of issues, was the fully effective “expression of opinion,” 

post, at 8, required for an appeal to proceed. AEDPA’s new requirement that judges indicate the specific issues to be raised on appeal has

no predecessor provision—indeed, it is the primary difference between 

a CPC and COA. 
 

Cite as: 565 U. S. ____ (2012) 7 

Opinion of the Court 

peals and §2253(b)’s clear limit on that grant—the extent 

to which Congress intended the COA process outlined in

§2253(c) to further limit the courts of appeals’ jurisdiction 

over habeas appeals. 

 Here, the only “clear” jurisdictional language in §2253(c) 

appears in §2253(c)(1). As we explained in Miller-El v. 

Cockrell, 537 U. S. 322 (2003), §2253(c)(1)’s plain terms—

“Unless a circuit justice or judge issues a certificate of 

appealability, an appeal may not be taken to the court of 

appeals”—establish that “until a COA has been issued 

federal courts of appeals lack jurisdiction to rule on the 

merits of appeals from habeas petitioners.” Id., at 336. 

The parties thus agree that §2253(c)(1) is jurisdictional.

The parties also agree that §2253(c)(2) is nonjurisdictional.4 That is for good reason. Section 2253(c)(2) speaks 

only to when a COA may issue—upon “a substantial showing of the denial of a constitutional right.” It does not 

contain §2253(c)(1)’s jurisdictional terms. See Russello v. 

United States, 464 U. S. 16, 23 (1983) (“[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally 

presumed that Congress acts intentionally . . .”). And it 

would be passing strange if, after a COA has issued, each

court of appeals adjudicating an appeal were dutybound to

revisit the threshold showing and gauge its “substantial[ity]” to verify its jurisdiction. That inquiry would be

largely duplicative of the merits question before the court. 

It follows that §2253(c)(3) is nonjurisdictional as well.

Like §2253(c)(2), it too reflects a threshold condition for

the issuance of a COA—the COA’s indication of “which 

specific issue or issues satisfy the showing required by

paragraph (2).” It too “does not speak in jurisdictional

terms or refer in any way to the jurisdiction of the [ap-

—————— 

4The United States as amicus curiae contends that §2253(c)(2) is

jurisdictional, but the State concedes that it is not. Tr. of Oral Arg. 31. 
 

 

 

 

8 GONZALEZ v. THALER 

Opinion of the Court 

peals] courts.” Arbaugh, 546 U. S., at 515 (internal quotation marks omitted). The unambiguous jurisdictional

terms of §§2253(a), (b), and (c)(1) show that Congress

would have spoken in clearer terms if it intended 

§2253(c)(3) to have similar jurisdictional force. Instead, 

the contrast underscores that the failure to obtain a COA 

is jurisdictional, while a COA’s failure to indicate an issue 

is not. A defective COA is not equivalent to the lack of any 

COA. 

It is telling, moreover, that Congress placed the power 

to issue COAs in the hands of a “circuit justice or judge.”5 

It would seem somewhat counterintuitive to render a 

panel of court of appeals judges powerless to act on appeals based on COAs that Congress specifically empowered one court of appeals judge to grant. Indeed, whereas 

§2253(c)(2)’s substantial-showing requirement at least describes a burden that “the applicant” seeking a COA 

bears, §2253(c)(3)’s indication requirement binds only the 

judge issuing the COA. Notably, Gonzalez advanced both

the timeliness and Sixth Amendment issues in his application for a COA. A petitioner, having successfully obtained a COA, has no control over how the judge drafts the

COA and, as in Gonzalez’s case, may have done everything 

required of him by law. That fact would only compound

the “unfai[r] prejudice” resulting from the sua sponte

dismissals and remands that jurisdictional treatment

would entail. Henderson, 562 U. S., at ___ (slip op., at 5).6 

—————— 

5The courts of appeals uniformly interpret “circuit justice or judge” to

encompass district judges. See United States v. Mitchell, 216 F. 3d 

1126, 1129 (CADC 2000) (collecting cases); Fed. Rule App. Proc. 22(b). 

Habeas Corpus Rule 11(a) requires district judges to decide whether to

grant or deny a COA in the first instance. 6That fact also distinguishes the indication requirement from every 

“ ‘similar provisio[n]’ ” that the dissent claims we have deemed jurisdictional. Post, at 5–6. None of our cases addressing those provisions, 

moreover, recognized or relied on the sweeping “rule” that the dissent

now invokes, whereby this Court should enforce as jurisdictional all 
Cite as: 565 U. S. ____ (2012) 9 

Opinion of the Court 

Treating §2253(c)(3) as jurisdictional also would thwart 

Congress’ intent in AEDPA “to eliminate delays in the 

federal habeas review process.” Holland v. Florida, 560 

U. S. ___, ___ (2010) (slip op., at 16). The COA process 

screens out issues unworthy of judicial time and attention 

and ensures that frivolous claims are not assigned to 

merits panels. Once a judge has made the determination

that a COA is warranted and resources are deployed in 

briefing and argument, however, the COA has fulfilled 

that gatekeeping function. Even if additional screening of 

already-issued COAs for §2253(c)(3) defects could further

winnow the cases before the courts of appeals, that would 

not outweigh the costs of further delay from the extra

layer of review. This case, in which the alleged defect

would be dispositive, exemplifies those inefficiencies; the 

State requests that we vacate and remand with instructions to dismiss the appeal based on a §2253(c)(3) defect

that it raised for the first time in response to a petition for

certiorari. And delay would be particularly fruitless in the 

numerous cases where, as here, the district court dismissed the petition on procedural grounds and the court of

appeals affirms, without having to address the omitted

constitutional issue at all. 

—————— 

“procedural conditions for appealing a case from one Article III court to

another.” Ibid.; but see, e.g., post, at 6–7, n. 2 (conceding that the “rule”

does not apply to criminal appeals); Becker v. Montgomery, 532 U. S. 

757, 763 (2001) (failure to sign notice of appeal is a nonjurisdictional

omission). All the cases, meanwhile, involved time limits (save one

involving Federal Rule of Appellate Procedure 3(c)(1), which we address 

infra). In Bowles v. Russell, 551 U. S. 205 (2007), we emphasized our 

“century’s worth of precedent” for treating statutory time limits on 

appeals as jurisdictional, id., at 209, n. 2, but even “Bowles did not hold 

. . . that all statutory conditions imposing a time limit should be considered jurisdictional,” Reed Elsevier, 559 U. S., at ___ (slip op., 

at 12). This case, in any event, involves a different type of procedural

condition. 
 

 

 

10 GONZALEZ v. THALER 

Opinion of the Court 

B 

The State, aided by the United States as amicus curiae, 

makes several arguments in support of jurisdictional

treatment of §2253(c)(3). None is persuasive.

First, the State notes that although §2253(c)(3) does not

speak in jurisdictional terms, it refers back to §2253(c)(1), 

which does. The State argues that it is as if §2253(c)(1) 

provided: “Unless a circuit justice or judge issues a certificate of appealability that shall indicate the specific issue or 

issues that satisfy the showing required by paragraph (2), 

an appeal may not be taken to the court of appeals.” The 

problem is that the statute provides no such thing. Instead, Congress set off the requirements in distinct paragraphs and, rather than mirroring their terms, excluded

the jurisdictional terms in one from the other. Notably,

the State concedes that §2253(c)(2) is nonjurisdictional, 

even though it too cross-references §2253(c)(1) and is 

cross-referenced by §2253(c)(3).

Second, the State seizes on the word “shall” in 

§2253(c)(3), arguing that an omitted indication renders the 

COA no COA at all. But calling a rule nonjurisdictional

does not mean that it is not mandatory or that a timely 

objection can be ignored. If a party timely raises the 

COA’s failure to indicate a constitutional issue, the court 

of appeals panel must address the defect by considering an 

amendment to the COA or remanding to the district judge

for specification of the issues.7 This Court, moreover, has 

—————— 

7The dissent’s insistence that there is “no practical, real-world effect” 

to treating this rule as mandatory, post, at 4, ignores the real world.

Courts of appeals regularly amend COAs or remand for specification of

issues, notwithstanding the supposed potential to “embarras[s] a 

colleague.” Post, at 5; see, e.g., Saunders v. Senkowski, 587 F. 3d 543, 

545 (CA2 2009) (per curiam) (amending COA to add issue); United 

States v. Weaver, 195 F. 3d 52, 53 (CADC 1999) (remanding for specification of issues). The government frequently alleges COA defects as 

grounds for dismissal (as the State did here, at this late stage), appar-
 

 

 

Cite as: 565 U. S. ____ (2012) 11 

Opinion of the Court 

long “rejected the notion that ‘all mandatory prescriptions, 

however emphatic, are . . . properly typed jurisdictional.’ ” 

Henderson, 562 U. S., at ___ (slip op., at 9); see also Dolan 

v. United States, 560 U. S. ___, ___ (2010) (slip op., at 5) 

(statute’s reference to “shall” alone does not render statutory deadline jurisdictional). Nothing in §2253(c)(3)’s

prescription establishes that an omitted indication should 

remain an open issue throughout the case.

Third, the United States argues that the placement of 

§2253(c)(3) in a section containing jurisdictional provisions

signals that it too is jurisdictional. In characterizing 

certain requirements as nonjurisdictional, we have on

occasion observed their “‘separat[ion]’” from jurisdictional 

provisions. E.g., Reed Elsevier, Inc. v. Muchnick, 559 U. S. 

___, ___ (2010) (slip op., at 7); Arbaugh, 546 U. S., at 515. 

The converse, however, is not necessarily true: Mere proximity will not turn a rule that speaks in nonjurisdictional

terms into a jurisdictional hurdle. In fact, §2253(c)(3)’s

proximity to §§2253(a), (b), and (c)(1) highlights the absence of clear jurisdictional terms in §2253(c)(3). 

Finally, the State analogizes a COA to a notice of appeal, pointing out that both a notice and its contents are

jurisdictional prerequisites. Federal Rule of Appellate

Procedure 3(c)(1) provides that a notice of appeal must:

“(A) specify the party or parties taking the appeal”; “(B)

designate the judgment, order, or part thereof being appealed”; and “(C) name the court to which the appeal is 

taken.” We have held that “Rule 3’s dictates are jurisdictional in nature.” Smith v. Barry, 502 U. S. 244, 248 (1992). 

—————— 

ently not sharing the dissent’s concern that such efforts “yield nothing

but additional litigation expenses.” Post, at 5; see, e.g., Porterfield, 258 

F. 3d, at 485; Cepero, 224 F. 3d, at 257. Habeas petitioners, too, have 

every incentive to request that defects be resolved, not only to defuse 

potential problems later in the litigation, but also to ensure that the

issue on which they sought appeal is certified and will receive full

briefing and consideration. 
 

 

 

 

12 GONZALEZ v. THALER 

Opinion of the Court 

We reject this analogy. We construed the content requirements for notices of appeal as jurisdictional because 

we were “convinced that the harshness of our construction 

[wa]s ‘imposed by the legislature.’” Torres v. Oakland 

Scavenger Co., 487 U. S. 312, 318 (1988). Rule 4, we 

noted, establishes mandatory time limits for filing a notice 

of appeal. Excusing a failure to name a party in a notice

of appeal, in violation of Rule 3, would be “equivalent to

permitting courts to extend the time for filing a notice of 

appeal,” in violation of Rule 4. Id., at 315. And “time 

limits for filing a notice of appeal have been treated as

jurisdictional in American law for well over a century.” 

Bowles v. Russell, 551 U. S. 205, 209, n. 2 (2007). Accordingly, the Advisory Committee Note “makes no distinction 

among the various requirements of Rule 3 and Rule 4,”

treating them “as a single jurisdictional threshold.” 

Torres, 487 U. S., at 315; see also id., at 316 (“the Advisory

Committee viewed the requirements of Rule 3 as jurisdictional in nature”). Here, we find no similar basis for treating the paragraphs of §2253(c) as a single jurisdictional 

threshold. 

Moreover, in explaining why the naming requirement 

was jurisdictional in Torres, we reasoned that an unnamed 

party leaves the notice’s “intended recipient[s]”—the 

appellee and court—“unable to determine with certitude 

whether [that party] should be bound by an adverse judgment or held liable for costs or sanctions.” Id., at 318. 

The party could sit on the fence, await the outcome, and 

opt to participate only if it was favorable. That possibility 

of gamesmanship is not present here. Unlike the party 

who fails to submit a compliant notice of appeal, the habeas petitioner who obtains a COA cannot control how that

COA is drafted.8 And whereas a party’s failure to be 

—————— 

8The dissent claims that we fail to give stare decisis effect to Torres. 

Post, at 10. Setting aside the fact that Torres involved an unrelated 
 

Cite as: 565 U. S. ____ (2012) 13 

Opinion of the Court 

named in a notice of appeal gives absolutely no “notice of 

[his or her] appeal,” a judge’s issuance of a COA reflects 

his or her judgment that the appeal should proceed and 

supplies the State with notice that the habeas litigation

will continue. 

Because we conclude that §2253(c)(3) is a nonjurisdictional rule, the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal. 

III 

We next consider whether Gonzalez’s habeas petition 

was time barred. AEDPA establishes a 1-year limitations 

period for state prisoners to file for federal habeas relief, 

which “run[s] from the latest of ” four specified dates.9 

§2244(d)(1). This case concerns the first of those dates: 

“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). The question before 

—————— 

Federal Rule featuring a different textual, contextual, and historical

backdrop, the dissent notably fails to grapple with—indeed, its opinion

is bereft of quotation to—any supporting reasoning in that opinion. 

That reasoning is simply not applicable here. 9Title 28 U. S. C. §2244(d)(1) provides: 

“A 1-year period of limitation shall apply to an application for a writ 

of habeas corpus by a person in custody pursuant to the judgment of a 

State court. The limitation period shall run from the latest of— 

“(A) the date on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such review; 

“(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United 

States is removed, if the applicant was prevented from filing by such 

State action; 

“(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases 

on collateral review; or 

“(D) the date on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of due 

diligence.” 
 

 

14 GONZALEZ v. THALER 

Opinion of the Court 

us is when the judgment becomes “final” if a petitioner

does not appeal to a State’s highest court. 

A 

In construing the language of §2244(d)(1)(A), we do not 

write on a blank slate. In Clay v. United States, 537 U. S. 

522 (2003), we addressed AEDPA’s statute of limitations

for federal prisoners seeking postconviction relief. See 

§2255(f)(1) (2006 ed., Supp. III) (beginning 1-year period of

limitations from “the date on which the judgment of conviction becomes final”). We held that the federal judgment

becomes final “when this Court affirms a conviction on the 

merits on direct review or denies a petition for a writ of

certiorari,” or, if a petitioner does not seek certiorari, 

“when the time for filing a certiorari petition expires.” Id., 

at 527. In so holding, we rejected the argument that, if a

petitioner declines to seek certiorari, the limitations period “starts to run on the date the court of appeals issues its 

mandate.” Id., at 529.

 In Jimenez v. Quarterman, 555 U. S. 113 (2009), we 

described Clay’s interpretation as comporting “with the 

most natural reading of the statutory text” and saw “no 

reason to depart” from it in “construing the similar language of §2244(d)(1)(A).” 555 U. S., at 119. The state 

court had permitted Jimenez to file an out-of-time direct 

appeal. We held that this “reset” the limitations period; 

Jimenez’s judgment would now become final at “the conclusion of the out-of-time direct appeal, or the expiration of 

the time for seeking review of that [out-of-time] appeal.” 

Id., at 120–121. Because Jimenez did not seek certiorari, 

we made no mention of when the out-of-time appeal “conclu[ded].” Rather, we held that his judgment became final

when his “time for seeking certiorari review in this Court 

expired.” Id., at 120. Nor did we mention the date on 

which the state court issued its mandate. Both Clay and 

Jimenez thus suggested that the direct review process 
 

Cite as: 565 U. S. ____ (2012) 15 

Opinion of the Court 

either “concludes” or “expires,” depending on whether the

petitioner pursues or forgoes direct appeal to this Court. 

We now make clear what we suggested in those cases: 

The text of §2244(d)(1)(A), which marks finality as of “the 

conclusion of direct review or the expiration of the time 

for seeking such review,” consists of two prongs. Each 

prong—the “conclusion of direct review” and the “expiration of the time for seeking such review”—relates to a 

distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment

becomes final at the “conclusion of direct review”—when 

this Court affirms a conviction on the merits or denies a 

petition for certiorari. For all other petitioners, the judgment becomes final at the “expiration of the time for seeking such review”—when the time for pursuing direct

review in this Court, or in state court, expires. We thus 

agree with the Court of Appeals that because Gonzalez did

not appeal to the State’s highest court, his judgment became final when his time for seeking review with the 

State’s highest court expired. 

B 

Gonzalez offers an alternative reading of §2244(d)(1)(A):

Courts should determine both the “conclusion of direct 

review” and the “expiration of the time for seeking such

review” for every petitioner who does not seek certiorari,

then start the 1-year clock from the “latest of ” the two

dates. Gonzalez rejects our uniform definition of the 

“conclusion of direct review” as the date on which this 

Court affirms a conviction on the merits or denies a petition for certiorari. In his view, whenever a petitioner does

not seek certiorari, the “conclusion of direct review” is the 

date on which state law marks finality—in Texas, the date

on which the mandate issues. Ex parte Johnson, 12 S. W. 

3d 472, 473 (Crim. App. 2000) (per curiam). Applying this 

approach, Gonzalez contends that his habeas petition was 
 

 

16 GONZALEZ v. THALER 

Opinion of the Court 

timely because his direct review “concluded” when the 

mandate issued (on September 26, 2006), later than the 

date on which his time for seeking Texas CCA review 

“expired” (August 11, 2006). We find his construction of 

the statute unpersuasive.

First, Gonzalez lacks a textual anchor for his laterin-time approach. The words “latest of” do not appear

anywhere in §2244(d)(1)(A). Rather, they appear in

§2244(d)(1) and refer to the “latest of” the dates in subparagraphs (A), (B), (C), and (D)—the latter three of which

are inapplicable here. Nothing in §2244(d)(1)(A) contemplates any conflict between the “conclusion of direct review” and the “expiration of the time for seeking such

review,” much less instructs that the later of the two shall 

prevail.

 Nor is Gonzalez’s later-in-time reading necessary to give

both prongs of §2244(d)(1)(A) full effect. Our reading does

so by applying one “or” the other, depending on whether 

the direct review process concludes or expires. Treating

the judgment as final on one date “or” the other is consistent with the disjunctive language of the provision.

Second, Gonzalez misreads our precedents. Gonzalez 

asserts that in Jimenez, we made a later-in-time choice 

between the two prongs. That is mistaken. Rather, we 

chose between two “expiration” dates corresponding to

different appeals: Jimenez initially failed to appeal to the

Texas Court of Appeals and that appeal became final 

when his “time for seeking discretionary review . . . expired.” 555 U. S., at 117, 119. When Jimenez was later 

allowed to file an out-of-time appeal, he pursued appeals 

with both the Texas Court of Appeals and Texas CCA; the 

out-of-time appeal thus became final when his “[t]ime for 

seeking certiorari review . . . with this Court expired.” Id., 

at 116, 120. We adopted the out-of-time appeal’s date of

finality over the initial appeal’s date of finality. Id., at 

119–121. Critically, by deeming the initial appeal final at 
 

 

Cite as: 565 U. S. ____ (2012) 17 

Opinion of the Court 

the expiration of time for seeking review in state court, 

and the out-of-time appeal final at the expiration of time 

for seeking certiorari in this Court, we reinforced Clay’s 

suggestion that the “expiration” prong governs all petitioners who do not pursue direct review all the way to this

Court.10 

Third, Gonzalez argues that AEDPA’s federalism concerns and respect for state-law procedures mean that we

should not read §2244(d)(1)(A) to disregard state law. We 

agree. That is why a state court’s reopening of direct 

review will reset the limitations period. 555 U. S., at 121. 

That is also why, just as we determine the “expiration of 

the time for seeking [direct] review” from this Court’s

filing deadlines when petitioners forgo certiorari, we look

to state-court filing deadlines when petitioners forgo statecourt appeals. Referring to state-law procedures in that 

context makes sense because such deadlines are inherently court specific. There is no risk of relying on “state-law

rules that may differ from the general federal rule.” Clay, 

537 U. S., at 531. 

By contrast, Gonzalez urges us to scour each State’s 

laws and cases to determine how it defines finality for 

every petitioner who forgoes a state-court appeal. That approach would usher in state-by-state definitions of the conclusion of direct review. It would be at odds with the 

uniform definition we adopted in Clay and accepted in the 

§2244(d)(1)(A) context in Jimenez. And it would pose 

serious administrability concerns. Even if roughly “half of 

the States define the conclusion of direct review as the 

issuance of the mandate or similar process,” Brief for 

—————— 

10Gonzalez also argues that Lawrence v. Florida, 549 U. S. 327 

(2007), supports his focus on the state court’s issuance of the mandate

because it referred to a mandate in determining when state postconviction proceedings were no longer pending. Lawrence, however, is inapposite. The case involved a different provision, 28 U. S. C. §2244(d)(2),

which by its terms refers to “State” procedures. 
 

 

18 GONZALEZ v. THALER 

Opinion of the Court 

Petitioner 40, that still leaves half with either different 

rules or no settled rules at all.11 

Fourth, Gonzalez speculates that our reading will rob 

some habeas petitioners of the full 1-year limitations period. Gonzalez asserts that our reading starts the clock 

running from the date that his time for seeking Texas

CCA review expired, even though, under Texas law, he 

could not file for state habeas relief until six weeks later, 

on the date the Texas Court of Appeals issued its mandate. Tex. Code Crim. Proc. Ann., Art. 11.07, §3(a) 

(Vernon Supp. 2011). His inability to initiate state habeas 

proceedings during those six weeks, he argues, reduced his 

1-year federal habeas filing period by six weeks. We 

expect, however, that it will be a rare situation where a 

petitioner confronting similar state laws faces a delay in

the mandate’s issuance so excessive that it prevents him

or her from filing a federal habeas petition within a year.12 

A petitioner who has exhausted his or her claims in state 

court need not await state habeas proceedings to seek

federal habeas relief on those claims. To the extent a 

petitioner has had his or her federal filing period severely

truncated by a delay in the mandate’s issuance and has

unexhausted claims that must be raised on state habeas 

review, such a petitioner could file a request for a stay and 

abeyance from the federal district court. See Rhines v. 

—————— 

11Compare, e.g., PSL Realty Co. v. Granite Inv. Co., 86 Ill. 2d 291, 

304, 427 N. E. 2d 563, 569 (1981) (judgment is final “when entered”); 

Gillis v. F & A Enterprises, 934 P. 2d 1253, 1256 (Wyo. 1997) (judgment

is final when “opinion is filed with the clerk”), with Ex parte Johnson, 

12 S. W. 3d 472, 473 (Texas CCA 2000) (per curiam) (judgment is final

at “issuance of the mandate”). 12We note that Gonzalez waited four months from the date of the 

mandate’s issuance before filing a state habeas petition. See 623 F. 3d, 

at 223. When that petition was dismissed as improperly filed, Gonzalez

waited another three months before refiling. Ibid. Even then, his state 

habeas proceedings concluded several weeks before his 1-year federal 

deadline elapsed. Id., at 225. 
 

Cite as: 565 U. S. ____ (2012) 19 

Opinion of the Court 

Weber, 544 U. S. 269, 277 (2005).

Finally, Gonzalez argues, as an alternative to his laterin-time construction, that his petition should be considered timely because it was filed within a year of when his

time for seeking this Court’s review—as opposed to the 

Texas CCA’s review—expired. We can review, however, 

only judgments of a “state court of last resort” or of a lower

state court if the “state court of last resort” has denied 

discretionary review. This Court’s Rule 13.1; see also 28 

U. S. C. §1257(a) (2006 ed.). Because Gonzalez did not 

appeal to the Texas CCA, this Court would have lacked

jurisdiction over a petition for certiorari from the Texas 

Court of Appeals’ decision affirming Gonzalez’s conviction. 

We therefore decline to incorporate the 90-day period for 

seeking certiorari in determining when Gonzalez’s judgment became final. 

* * * 

In sum, we hold that §2253(c)(3) is a mandatory but 

nonjurisdictional rule. Here, the COA’s failure to “indicate” a constitutional issue did not deprive the Court of 

Appeals of jurisdiction to adjudicate Gonzalez’s appeal. 

We further hold that, with respect to a state prisoner who

does not seek review in a State’s highest court, the judgment becomes “final” under §2244(d)(1)(A) when the time

for seeking such review expires—here, August 11, 2006. 

We thus agree with the Court of Appeals that Gonzalez’s

federal habeas petition was time barred.

For the reasons stated, the judgment of the Court of

Appeals for the Fifth Circuit is 

Affirmed. 
_________________ 

_________________ 

Cite as: 565 U. S. ____ (2012) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 10–895 

RAFAEL ARRIAZA GONZALEZ, PETITIONER v. RICK
 

THALER, DIRECTOR, TEXAS DEPARTMENT OF
 

CRIMINAL JUSTICE, CORRECTIONAL
 

INSTITUTIONS DIVISION 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[January 10, 2012]

 JUSTICE SCALIA, dissenting. 

The obvious, undeniable, purpose of 28 U. S. C. §2253(c) 

is to spare three-judge courts of appeals the trouble of 

entertaining (and the prosecution the trouble of defending

against) appeals from the denials of relief in habeas and 

§2255 proceedings, unless a district or circuit judge has

identified an issue on which the applicant has made a

substantial showing of a constitutional violation. Where 

no such constitutional issue has been identified, an appeal

on other, nonconstitutional, issues (such as the statute of 

limitations issue that the Court decides today) will not lie.

Today’s opinion transforms this into a provision that 

allows appeal so long as a district or circuit judge, for 

whatever reason or for no reason at all, approves it. This 

makes a hash of the statute. The opinion thinks this

alchemy required by the Court’s previously expressed

desire to “‘bring some discipline’ to the use of the term

‘jurisdictional,’” ante, at 5 (quoting Henderson v. Shinseki, 

562 U. S. ___, ___ (2011) (slip op., at 5)). If that is true, 

discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction. I would reverse the judgment below for want of jurisdiction. 
 

2 GONZALEZ v. THALER 

SCALIA, J., dissenting 

I 

Fair Meaning of the Text 

Congress amended §2253 to its current form in the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). In its entirety, the section reads as follows: 

“(a) In a habeas corpus proceeding or a proceeding 

under section 2255 before a district judge, the final

order shall be subject to review, on appeal, by the 

court of appeals for the circuit in which the proceeding 

is held. 

“(b) There shall be no right of appeal from a final

order in a proceeding to test the validity of a warrant 

to remove to another district or place for commitment

or trial a person charged with a criminal offense 

against the United States, or to test the validity of 

such person’s detention pending removal proceedings.

“(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken 

to the court of appeals from— 

“(A) the final order in a habeas corpus proceeding 

in which the detention complained of arises out of

process issued by a State court; or 

“(B) the final order in a proceeding under section

2255. 

“(2) A certificate of appealability may issue under 

paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 

“(3) The certificate of appealability under paragraph 

(1) shall indicate which specific issue or issues satisfy

the showing required by paragraph (2).” 

As the Court acknowledges, ante, at 6–7, all three subsections—(a), (b), and (c)—clearly speak to the jurisdiction of

the courts of appeals. Subsection (a) gives appellate jurisdiction to “the court of appeals for the circuit in which 

the proceeding is held”; subsection (b) carves out certain 
 

Cite as: 565 U. S. ____ (2012) 3 

SCALIA, J., dissenting 

classes of cases from that appellate jurisdiction; and subsection (c) imposes a procedural hurdle to the exercise of that 

appellate jurisdiction—a judge’s issuance of a certificate of

appealability, see Miller-El v. Cockrell, 537 U. S. 322, 336 

(2003).

Paragraph 2253(c)(3) says that a certificate of appealability must “indicate” which issue or issues in the case 

involve a substantial showing of a constitutional violation.

Everyone agrees that the certificate issued below contains

no such indication. See ante, at 5. It appears, in fact, that 

the issuing judge never considered whether any of Gonzalez’s constitutional claims satisfied paragraph (2). As far 

as we know, no federal judge has ever determined that

Gonzalez “has made a substantial showing of the denial of 

a constitutional right.” §2253(c)(2). The Court does not 

even suggest that he has—but it goes on to decide the 

statute-of-limitations issue in the case. 

Its basis for proceeding in this fashion is the remarkable

statement that “[a] defective COA is not equivalent to the

lack of any COA.” Ante, at 8. That is simply not true with

respect to a significant defect in a legal document. Would 

one say that a deed which lacks the words of conveyance is 

not equivalent to the lack of a deed? Or that a passport

which lacks the Secretary of State’s affirmance of the 

bearer’s citizenship is not equivalent to the lack of a passport? Minor technical defects are one thing, but a defect

that goes to the whole purpose of the instrument is something else. And the whole purpose of the certificate-ofappealability procedure is to make sure that, before a case

can proceed to the court of appeals, a judge has made the 

determination that it presents a substantial showing of 

the denial of a constitutional right. To call something a

valid certificate of appealability which does not contain 

the central finding that is the whole purpose of a certificate of appealability is quite absurd. 

The Court says that “[o]nce a judge has made the de-
 

 

 

 

4 GONZALEZ v. THALER 

SCALIA, J., dissenting 

termination that a COA is warranted and resources are 

deployed in briefing and argument, . . . the COA has fulfilled [its] gatekeeping function.” Ante, at 10. But of 

course it has not done so—it has performed no gatekeeping

function whatever—if “the determination that a COA is 

warranted” has not been accompanied by the issuing 

judge’s opinion required to support the determination:

that there is an issue as to which the applicant has made

a “substantial showing of the denial of a constitutional

right,” §2253(c)(2). As the very next sentence of today’s

opinion discloses, what the Court means by “has fulfilled 

[its] gatekeeping function” is simply that it will not be 

worth the trouble of going back, since that would “not 

outweigh the costs of further delay,” ante, at 9. 

That is doubtless true, and it demonstrates the hollowness of the Court’s assurance that “calling a rule nonjurisdictional does not mean that it is not mandatory or that a

timely objection can be ignored,” ante, at 10. That statement is true enough as a general proposition: Calling the 

numerosity requirement in Arbaugh v. Y & H Corp., 546 

U. S. 500 (2006), nonjurisdictional, for example, did not 

eliminate it, where protest was made, as a continuing 

mandatory requirement for relief on the merits, id., at 

516. Even the time-of-filing requirement in Eberhart v. 

United States, 546 U. S. 12 (2005) (per curiam), continued 

to have “bite” even though it was held nonjurisdictional: It 

prevented relief when the failure to observe it was properly challenged, id., at 19. But the Court has managed to 

create today a “mandatory” requirement which—precisely 

because it will not be worth the trouble of going back—has 

no practical, real-world effect.1 What is the consequence 

—————— 

1The Court suggests that I “ignor[e] the real world,” ante, at 11, n. 7, 

in which litigants and courts have taken steps to correct a defective 

COA. But these actions are unsurprising in a world in which there was

the possibility that this Court would treat §2253(c)(3) as a jurisdictional

requirement and a court of appeals had already done so. The New 
Cite as: 565 U. S. ____ (2012) 5 

SCALIA, J., dissenting 

when the issuing judge, over properly preserved objection, 

produces a COA like the one here, which does not contain

the required opinion? None whatever. The habeas petitioner already has what he wants, argument before the

court of appeals. The government, for its part, is either 

confident in its view that there has been no substantial 

showing of denial of a constitutional right—in which case

it is just as easy (if not easier) to win before three judges

as it is before one; or else it is not—in which case a crusade to enforce §2253(c) is likely to yield nothing but 

additional litigation expenses. As for the three-judge

panel of the court of appeals, it remains free, as always, to

choose whichever mandatory-but-not-jurisdictional basis it 

wishes for resolving the case. Cf. Steel Co. v. Citizens for 

Better Environment, 523 U. S. 83, 93–94 (1998). Why not

choose the one that is sure to be final and that might avoid

embarrassing a colleague? No one has any interest in 

enforcing the “mandatory” requirement. Which is perhaps

why, as I proceed to discuss, mandatory requirements for 

court-to-court appeal are always made jurisdictional. 

Past Treatment of Similar Provisions 

As the Court acknowledges, “‘context, including this

Court’s interpretation of similar provisions in many years

past, is relevant to whether a statute ranks a requirement 

as jurisdictional.’” Ante, at 6, n. 3 (quoting Reed Elsevier, 

Inc. v. Muchnick, 559 U. S. ___, ___ (2010) (slip op., at 13)). 

Thus, we have said that a requirement prescribed as a

condition to obtaining judicial review of agency action 

is quite different (nonjurisdictional) from a requirement

prescribed as a condition to appeal from one court to another (jurisdictional). See Henderson, 562 U. S., at ___ – 

___ (slip op., at 7–8). We have always—always, without 

—————— 

World of the Court’s making, in which it is certain that an issuing

judge’s failure to identify any issue justifying a COA will not have 

jurisdictional consequences, is yet unexplored. 
 

6 GONZALEZ v. THALER 

SCALIA, J., dissenting 

exception—held that procedural conditions for appealing a

case from one Article III court to another are jurisdictional. When an appeal is “not taken within the time 

prescribed by law,” the “Court of Appeals [is] without jurisdiction.” George v. Victor Talking Machine Co., 293 U. S. 

377, 379 (1934) (per curiam); see also United States v. 

Robinson, 361 U. S. 220, 229–230 (1960). When a party’s

name is not listed in the notice of appeal, as the Federal

Rules of Appellate Procedure require, the court has no

jurisdiction over that party’s appeal. Torres v. Oakland 

Scavenger Co., 487 U. S. 312, 314–315 (1988).

When this Court reviewed cases by writ of error, the law 

re quired that the lower-court record be filed with the

Court “before the end of the term next succeeding the

issue of the writ.” Edmonson v. Bloomshire, 7 Wall. 306, 

309 (1869). The Court routinely dismissed cases that did 

not comply with that requirement. See, e.g., Mesa v. 

United States, 2 Black 721, 721–722 (1863) (per curiam); 

Edmonson, supra, at 309–310; Steamer Virginia v. West, 

19 How. 182, 183 (1857). The same jurisdictional treatment was accorded to failure to serve notice on the defendant in error within the succeeding term, see, e.g., 

United States v. Curry, 6 How. 106, 112–113 (1848); Villabolos v. United States, 6 How. 81, 88, 91 (1848), and to 

failure to file the writ of error with the clerk of the lower 

court, see, e.g., Credit Co. v. Arkansas Central R. Co., 128 

U. S. 258, 261 (1888); Scarborough v. Pargoud, 108 U. S. 

567 (1883). Today, when a petition for certiorari in a civil 

case is not filed within the time prescribed by 28 U. S. C.

§2101(c), this Court lacks jurisdiction. Federal Election 

Comm’n v. NRA Political Victory Fund, 513 U. S. 88, 90 

(1994) (citing Missouri v. Jenkins, 495 U. S. 33, 45 (1990)); 

see also Matton S. S. Co. v. Murphy, 319 U. S. 412, 415 

(1943) (per curiam).2 

—————— 

2Since the time limits for filing petitions for certiorari in criminal 
Cite as: 565 U. S. ____ (2012) 7 

SCALIA, J., dissenting 

So strict has been the rule enforcing as jurisdictional

those requirements attached to court-from-court appeals,

that we have applied it to a requirement contained in a

statute not even addressed to the courts. Section 518(a) of 

Title 28 charges the Solicitor General with “conduct[ing]

and argu[ing] suits and appeals in the Supreme Court . . .

in which the United States is interested.” We held that, 

absent independent statutory authority, an agency’s petition for certiorari filed without authorization from the 

Solicitor General does not suffice to invoke our jurisdiction. NRA Political Victory Fund, supra, at 98–99.3

 Jurisdictional enforcement of procedural requirements

for appeal has deep roots in our jurisprudence. Chief 

Justice Taney dismissed an appeal in which the citation

was not issued and served in time, because “we have no 

power to receive an appeal in any other mode than that 

provided by law.” Villabolos, supra, at 90. And Chief 

Justice Chase wrote, in a case dismissing an appeal for 

failure to file in time: 

“In the Judiciary Act of 1789, and in many acts since, 

Congress has provided for [appellate courts’] exercise 

—————— 

cases are “not enacted by Congress but [are] promulgated by this Court 

under authority of Congress to prescribe rules,” we have held that they

may “be relaxed by the Court in the exercise of its discretion when the 

ends of justice so require.” Schacht v. United States, 398 U. S. 58, 64 

(1970). The indication requirement of §2253(c)(3), of course, has been

“imposed by the legislature and not by the judicial process.” Schiavone 

v. Fortune, 477 U. S. 21, 31 (1986). 3The Court cites Becker v. Montgomery, 532 U. S. 757 (2001), as a 

counter-example. Ante, at 9, n. 6. We held there that an appellant’s 

failure to sign his notice of appeal, see Fed. Rule Civ. Proc. 11(a),

within the time prescribed for filing a notice of appeal, see Fed. Rule

App. Proc. 4(a)(1), did not require dismissal where the notice itself was

timely filed. 532 U. S., at 762–763. We did not hold, however, that the 

signing requirement was nonjurisdictional; we had no occasion to do so. 

We held that Becker had complied with Civil Rule 11(a) because the 

error was “ ‘corrected promptly after being called to [his] attention,’ ” 

id., at 764 (quoting Fed. Rule Civ. Proc. 11(a)). 
 

8 GONZALEZ v. THALER 

SCALIA, J., dissenting 

[of jurisdiction] in such cases and classes of cases, and 

under such regulations as seemed to the legislative

wisdom convenient and appropriate. The court has 

always regarded appeals in other cases as excepted 

from the grant of appellate power, and has always felt 

itself bound to give effect to the regulations by which

Congress has prescribed the manner of its exercise.” 

Castro v. United States, 3 Wall. 46, 49 (1866). 

Jurisdictional Nature of Predecessor Provision 

But similarity to a general type of provision that has

always been held jurisdictional is not all that supports the 

jurisdictional character of §2253(c)(3). Its very predecessor statute made a judge’s expression of opinion a condition of appellate jurisdiction. The certificate of probable 

cause, of which the COA was born, arrived on the scene 

over 100 years ago in “An Act Restricting in certain cases

the right of appeal to the Supreme Court in habeas corpus

proceedings,” Act of Mar. 10, 1908, ch. 76, 35 Stat. 40: 

“[F]rom a final decision by a court of the United 

States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued 

out of a State court no appeal to the Supreme Court 

shall be allowed unless the United States court by 

which the final decision was rendered or a justice of 

the Supreme Court shall be of opinion that there exists probable cause for an appeal, in which event, on 

allowing the same, the said court or justice shall certify that there is probable cause for such allowance.” 

The last version of this statute, before it was amended to 

its current form in AEDPA, provided for issuance of the 

certificate of probable cause by a circuit judge instead of a

justice. See §2253, 62 Stat. 967 (codified at 28 U. S. C. 

§2253). Even applying the Court’s simplistic rule that the 

jurisdictional restriction must be contained in the very 
Cite as: 565 U. S. ____ (2012) 9 

SCALIA, J., dissenting 

same paragraph as the procedural requirement, there is

no doubt that under this statute a judge’s certification that 

there was probable cause for an appeal was jurisdictional. 

See, e.g., Ex parte Patrick, 212 U. S. 555 (1908) (per curiam); Bilik v. Strassheim, 212 U. S. 551 (1908) (per curiam). There is no reason whatever to think that Congress 

rendered the statement of opinion unnecessary for jurisdiction by (1) extending the requirement for it to §2255

proceedings; (2) requiring the opinion to address a more

specific point (not just probable cause for an appeal but 

presence of an issue presenting a “substantial showing of 

the denial of a constitutional right”)4; and (3) giving the 

document in which the judge is required to express the 

opinion a name (“certificate of appealability”)—so that 

now a “certificate of appealability” without opinion will 

suffice. Neither any one of these steps, nor all of them

combined, suggest elimination of jurisdictional status for 

the required expression of opinion.5 It would be an entirely strange way of achieving that result. It was not a 

strange way, however, of dividing the now more complex 

—————— 

4The Court believes that the fact that this “new requirement . . . has 

no predecessor provision” suggests that it is nonjurisdictional. Ante, at 

6, n. 3. To begin with, it is not that new, and it has a predecessor 

provision; it merely adds detail to the jurisdictional opinion that was

previously required. But even if the requirement were entirely unprecedented, when it appears within a textual structure that makes it

jurisdictional (as our opinion in Torres v. Oakland Scavenger Co., 487 

U. S. 312 (1988), held, see infra, at 10–12), it would be an entirely

unprecedented jurisdictional provision. 5The Court’s opinion suggests that “[i]t would seem somewhat counterintuitive to render a panel of court of appeals judges powerless to act

on appeals based on COAs that Congress specifically empowered one 

court of appeals judge to grant.” Ante, at 8. To begin with, we do not 

think that an anomaly. It makes entire sense to enable a single circuit

judge to nip improper appeals in the bud, sparing parties the trouble of 

an appeal, and courts the expenditure of three times as much judicial 

energy. But if it were an anomaly, it would be one that existed as well

under the prior statute, which was held to be jurisdictional. 
 

 

10 GONZALEZ v. THALER 

SCALIA, J., dissenting 

and lengthy provision into manageable subsections. 

Stare Decisis Effect of Torres 

In addition to the fact that conditions attached to courtto-court appeal have always been held jurisdictional, and 

the fact that this statute’s predecessor was held to be so, 

we have considered, and found to be jurisdictional, a statute presenting precisely what is at issue here: a provision 

governing court-to-court appeals which made particular 

content a required element of a document that the statute

said was necessary for jurisdiction; and which did that in a 

separate section that “excluded the jurisdictional terms,” 

ante, at 10. That case flatly contradicts today’s holding. 

In Torres v. Oakland Scavenger Co., 487 U. S. 312, we 

dealt with Rule 3(c)(1) of the Federal Rules of Appellate

Procedure. Rule 3(a) of those Rules makes a notice of 

appeal necessary to appellate jurisdiction—just as 

§2253(c)(1) makes a certificate of appealability necessary. 

And Rule 3(c)(1), which, like §2253(c)(3), does not contain

jurisdictional language, says what the requisite notice of

appeal must contain—just as §2253(c)(3) says what the

requisite certificate of appealability must contain: 

“The notice of appeal must: 

“(A) specify the party or parties taking the appeal 

by naming each one in the caption or body of the notice . . . ; 

“(B) designate the judgment, order, or part thereof

being appealed; and

“(C) name the court to which the appeal is taken.” 

In Torres we held that the Court of Appeals lacked jurisdiction over the appeal of a party not properly named in 

the notice of appeal. 487 U. S., at 314–315. The parallel

is perfect.

The Court claims that the jurisdictional consequences of

Rule 3(c) were “‘imposed by the legislature,’” ante, at 12 
Cite as: 565 U. S. ____ (2012) 11 

SCALIA, J., dissenting 

(quoting Torres, supra, at 318), which according to the 

Court’s analysis “‘clearly state[d],’” ante, at 6 (quoting 

Arbaugh, 546 U. S., at 515), that Rule 3(c) is jurisdictional. 

But the legislature there did precisely what it did here: 

made a particular document necessary to jurisdiction and 

then specified what that document must contain.6 I certainly agree that that is a clear statement that a document with the requisite content is necessary to jurisdiction. But the Court does not. So to distinguish Torres it 

has to find something else in Rule 3(c) that provided a 

“clear statement” of what “Congress intended,” ante, at 6– 

7. The best it can come up with, ante, at 12, is an unclear 

statement, and that not from Congress but from Advisory 

Committee Notes referred to in the Torres opinion. Such 

Notes are (of course) “the product of the Advisory Committee, and not Congress,” and “they are transmitted to Congress before the rule is enacted into law.” United States v. 

Vonn, 535 U. S. 55, 64, n. 6 (2002). They are, in other 

words, a species of legislative history. I know of no precedent for the proposition that legislative history can satisfy 

a clear-statement requirement imposed by this Court’s

opinions. Does today’s distinguishing of Torres mean that 

legislative history can waive the sovereign immunity of 

the United States? See United States v. Nordic Village, 

—————— 

6The Court’s claim that “Torres involved . . . a different textual, contextual, and historical backdrop,” ante, at 13, n. 8, does not withstand 

scrutiny. First, consider the “textual backdrop.” The Court cannot 

really believe that Rule 3(c)(1)’s statement that a notice of appeal “must

. . . specify” the appealing party is “ ‘clear’ jurisdictional language,” ante, 

at 7, while §2253(c)(3)’s “shall indicate” the issue or issues is not. If it 

did, it would say as much, since that would readily distinguish Torres. 

And then consider the “contextual” (whatever that means) and “historical backdrop.” Each provision, in mandatory-but-not-jurisdictional

language, specifies what another document, itself jurisdictional in light

of statutory text and history, must contain. The two cases are, of 

course, literally “different,” ante, at 13, n. 8, but not in any legally 

relevant way. 
 

12 GONZALEZ v. THALER 

SCALIA, J., dissenting 

Inc., 503 U. S. 30, 33–34 (1992). Or abrogate the sovereign immunity of the States? See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). Or give retroactive effect to new legislation? See Greene v. United 

States, 376 U. S. 149, 160 (1964). Or foreclose review of 

agency actions? See Abbott Laboratories v. Gardner, 387 

U. S. 136, 141 (1967). Today’s opinion is in this respect a 

time-bomb. 

To make matters worse, the Advisory Committee Note 

considered by the Torres Court—as “support for [its] 

view,” 487 U. S., at 315—did not clearly say that Rule

3(c)’s requirements were jurisdictional. It said this: 

“‘Rule 3 and Rule 4 combine to require that a notice

of appeal be filed with the clerk of the district court

within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is “mandatory and jurisdictional,” United States v. Robinson, 

361 U. S. 220, 224 (1960), compliance with the provisions of those rules is of the utmost importance.’” 487 

U. S., at 315 (quoting 28 U. S. C. App., p. 467; alteration omitted and emphasis added). 

To say that timely filing of a notice of appeal is jurisdictional, and that placing within the notice of appeal what

Rule 3 says it must contain is “of the utmost importance,” 

does not remotely add up to a clear statement that placing

within the notice of appeal what Rule 3 says it must contain is jurisdictional. There is simply no principled basis 

for saying that Torres satisfies the “clear-statement principle,” ante, at 6, except the commonsense notion that 

when a document is made jurisdictional, and the required 

contents of that document specified, a document that does 

not contain those contents cannot confer jurisdiction.7 

—————— 

7The Court also tries to distinguish Torres on the ground that failure 

to comply with Rule 3 presented a different “possibility of gamesman-
 

Cite as: 565 U. S. ____ (2012) 13 

SCALIA, J., dissenting 

The Court is not willing to say that Torres is no longer 

good law, but I doubt whether future litigants will be so 

coy. They know that in the past, to avoid the uncongenial 

rigidity of the rule that procedures attending court-tocourt appeals are jurisdictional, we have performed wondrous contortions to find compliance with those rules. For 

example, in Smith v. Barry, 502 U. S. 244, 248 (1992), we 

held that an “informal brief” filed after a defective notice 

of appeal counted as a valid notice of appeal. In Foman v. 

Davis, 371 U. S. 178, 181 (1962), we held that a notice of 

appeal from the denial of a motion to vacate the judgment

was also a notice of appeal from the underlying judgment. 

And in Houston v. Lack, 487 U. S. 266, 270 (1988), we held 

that a prisoner’s notice of appeal was “filed” when it was 

delivered to prison authorities for forwarding to the district court. These (shall we say) creative interpretations of

the procedural requirements were made necessary by the 

background principle that is centuries old: “[I]f the mode

prescribed for removing cases by writ of error or appeal 

be too strict and technical, and likely to produce inconvenience or injustice, it is for Congress to provide a remedy

by altering the existing laws; not for the court.” United 

States v. Curry, 6 How. 106, 113 (1848). But if we have 

been willing to expose ourselves to ridicule in order to 

approve implausible compliance with procedural prerequisites to appeal, surely we may be willing to continue and 

expand the process of simply converting those obnoxious 

prerequisites into the now favored “claims processing

rules,” enabling us to avoid unseemly contortions by simp-

—————— 

ship,” ante, at 13, from that presented here. I fail to see the relevance 

of that happenstance. The premise of the Court’s opinion is that the

question of jurisdiction vel non is governed by a “clear-statement 

principle,” ante, at 6. The statement here is precisely as clear as the 

statement in Torres. Do we enforce clear statements only when there is 

a “possibility of gamesmanship”? The Court’s free-wheeling purposivism defies textual analysis. 
 

 

14 GONZALEZ v. THALER 

SCALIA, J., dissenting 

ly invoking the ever-judge-friendly principles of equity. 

What began as an effort to “‘bring some discipline’ to the

use of the term ‘jurisdictional,’” ante, at 5 (quoting Henderson, 562 U. S., at ___ (slip op., at 5)), shows signs of 

becoming a libertine, liberating romp through our established jurisprudence. 

II 

A few remaining points raised by the Court’s opinion 

warrant response. 

The Court holds that the requirement imposed by paragraph (c)(2) (that a COA may issue “only if the applicant has

made a substantial showing of the denial of a constitutional right”) is not jurisdictional, and says that “[i]t follows 

that §2253(c)(3) is nonjurisdictional as well.” Ante, at 7. 

I need not reach the issue whether (c)(2) is jurisdictional—

though it seems to me that the Court disposes rather 

summarily of the Solicitor General’s view that it is. And I 

need not confront the Court with the back-at-you argument that if (c)(3) is jurisdictional (as I think) then (c)(2) is 

as well. For whether one runs it backwards or forwards, 

the argument is a bad one. Assuming that (c)(2) is nonjurisdictional, it does not at all “follow” that (c)(3) is nonjurisdictional as well. Paragraph (c)(3) is jurisdictional not 

because it is located in subsection (c), but because it describes the required content of a COA. Paragraph (c)(2)

does not; it sets forth the criterion for a COA’s issuance. A 

judge may apply that criterion erroneously but still produce a COA that (as paragraph (c)(3) requires) “indicate[s] 

which specific issue or issues satisfy the showing required 

by paragraph (2).” It no more follows that the erroneousness of the judge’s indication must destroy the jurisdiction

that the COA creates, than it followed under the predecessor statute that the erroneousness of the certification of 

probable cause for an appeal destroyed the jurisdiction 
 

 

Cite as: 565 U. S. ____ (2012) 15 

SCALIA, J., dissenting 

that the certification created.8 The two issues are quite

separate: what the judge must find, and what the COA (or 

certification) must contain.

The Court points out that Gonzalez raised the Sixth

Amendment issue in his application for a COA, that “[a] 

petitioner, having successfully obtained a COA, has no 

control over how the judge drafts the COA,” and that the 

petitioner, “as in Gonzalez’s case, may have done everything required of him by law.” Ante, at 8. Perhaps it is

true that the defective COA was not at all Gonzalez’s 

fault—though he could have promptly moved to amend it.

But no-fault elimination of jurisdiction is not forbidden.

In Bowles v. Russell, 551 U. S. 205 (2007), we enforced a

time limit on notice of appeal where the district court had

purported to extend the time to file and the appellant had

complied with the court’s order. Id., at 207, 213–214. It 

did not matter that the fault lay with the court.

Finally, the Court points out that treating §2253(c)(3) as

jurisdictional would waste a lot of time. “Even if additional screening of already-issued COAs for §2253(c)(3) defects

could further winnow the cases before the courts of appeals, that would not outweigh the costs of further delay 

from the extra layer of review.” Ante, at 9. But that is not 

an argument directed to the statute before us; it is an

argument directed against enforcement of all jurisdictional requirements (all of which, I suspect, are the object of

the Court’s mounting disfavor). And the argument may 

not even be true, except in the (presumably rare) case

where the jurisdictional prescription is disregarded. Over 

—————— 

8We held in Nowakowski v. Maroney, 386 U. S. 542, 543 (1967) (per 

curiam), that “when a district judge grants [a certificate of probable

cause], the court of appeals must grant an appeal . . . and proceed to a 

disposition of the appeal in accord with its ordinary procedure.” See 

also Carafas v. LaVallee, 391 U. S. 234, 242 (1968) (Nowakowski 

requires “that the appeal [be] considered on its merits . . . in cases 

where a certificate of probable cause has been granted”). 
 

 

16 GONZALEZ v. THALER 

SCALIA, J., dissenting 

the long term, the time saved to judges and lawyers by an 

enforceable requirement that appeals be screened by a 

single judge may vastly outweigh the time wasted by the 

occasional need for enforcement. That, it seems to me, is 

what Congress believed. 

* * * 

Terminology is destiny. Today’s holding, and the erosion of our prior jurisprudence that will perhaps follow 

upon it, is foreshadowed and facilitated by the unfortunate

terminology with which we have chosen to accompany our

campaign to “bring some discipline” to determinations of

jurisdiction. We have said that the universe of rules 

placing limitations upon the courts is divided into (1) 

“claims processing rules,” and (2) jurisdiction-removing

rules. Unless our prior jurisprudence is to be repudiated,

that is a false dichotomy. The requirement that the unsuccessful litigant file a timely notice of appeal, for example, is (if the term is to have any meaning) a claimsprocessing rule, ordering the process by which claims are

adjudicated. Yet as discussed above, that, and all procedures that must be followed to proceed from one court to 

another, have always been deemed jurisdictional. The 

proper dichotomy is between claims processing rules that 

are jurisdictional, and those that are not. To put it otherwise suggests a test for jurisdiction that is not to be found 

in our cases.9 

—————— 

9 It may well be that what I have called a false dichotomy was indeed

meant to revise our jurisprudence. In Kontrick v. Ryan, 540 U. S. 443, 

455 (2004), we said by way of dictum the following: “Clarity would be

facilitated if courts and litigants used the label ‘jurisdictional’ not for 

claim-processing rules, but only for prescriptions delineating the 

classes of cases (subject-matter jurisdiction) and the persons (personal

jurisdiction) falling within a court’s adjudicatory authority.” Unless an 

appeal lacking a timely filing of a notice of appeal can be considered one 

that falls outside the appellate court’s “subject-matter jurisdiction”

(which would be an odd usage), Kontrick’s dictum effectively announced 
 

 

 

 

Cite as: 565 U. S. ____ (2012) 17 

SCALIA, J., dissenting 

At the end of the day, the indication requirement in

§2253(c)(3) is “‘imposed by the legislature and not by 

the judicial process.’” Torres, 487 U. S., at 318 (quoting 

Schiavone v. Fortune, 477 U. S., 21, 31 (1986)). Whether 

or not its enforcement leads to a harsh result, wastes time 

in this particular case, or (though the Court does not give

this as a reason) prevents us from reaching a circuit

conflict we are dying to resolve, we are obliged to enforce it.

I respectfully dissent. 

—————— 

today’s decision, the overruling of Torres and Browder v. Director, Dept. 

of Corrections of Ill., 434 U. S. 257 (1978), and the elimination of
 

jurisdictional treatment for all procedural requirements for appeal.

That the announcement has not been heeded is demonstrated by
 

Bowles v. Russell, 551 U. S. 205 (2007) (decided after Kontrick), which

(over the dissent of the author of Kontrick) reaffirmed Browder. 

confess error in joining the quoted portion of Kontrick. 

I