William H. Rehnquist: We will hear argument first this afternoon in Number 86-80, New York against Joseph Burger. Ms. Holtzman, you may proceed whenever you are ready.
Elizabeth Holtzman: Mr. Chief Justice, may it please the Court: The question here is whether the Constitution allows states, as it has allowed the federal government, to regulate a specific industry in order to meet a compelling public need and to enforce that regulatory scheme with warrantless inspections. New York State's effort to regulate the vehicle dismantlers industry for the purpose of curbing the serious problem of auto theft with its attendant economic burdens and physical safety burdens falls squarely under the well settled criteria of Biswell, Colonnade and Donovan versus Dewey. The New York regulatory scheme under 415-a of the Vehicle Traffic law is aimed at vehicle dismantlers and has three interrelated components: registration and re-registration on a periodic basis, comprehensive record keeping requirements, and warrantless inspections. The administrative purposes of the regulatory scheme are as follows: the protection of legitimate vehicle dismantlers; to return more stolen cars to owners, which is an important purpose in and of itself and also to reduce insurance costs; by the record keeping requirement to deter would-be auto thieves; to trace cars back to the auto thieves; and to prevent the vehicle dismantling industry from being used as a mechanism for fencing stolen cars. The statute at issue here has been criticized as being designed to allow police officers to conduct warrantless searches of inventory, and that the statute serves no real administrative purpose. That reasoning is wrong. It is wrong for a number of reasons. It is wrong, first, because of the legislative history of the statute which establishes clearly that New York State first set up a regulatory scheme that included no inspection of inventory. The inspection of inventory was added only six years... was added six years after the statute went into effect. And the purpose of doing that was to make sure that the other components of the regulatory scheme worked; namely, the registration and the record keeping components.
Sandra Day O'Connor: What would the difficulty be, Ms. Holtzman, of getting an administrative warrant, which of course can be obtained more easily than a warrant in a criminal case on probable cause?
Elizabeth Holtzman: Well, the simple answer is there is no scheme allowing that in New York State, but beyond that--
Sandra Day O'Connor: There is no authority--
Elizabeth Holtzman: --Exactly.
Sandra Day O'Connor: --under New York State law to permit obtaining an administrative warrant?
Elizabeth Holtzman: Exactly. And it's also, under the case of Biswell, clear that under a routine administrative search, that with clearly delimited criteria on the basis of which a search can be conducted; in other words, in terms of reasonable time and the place and the scope of the search, that administrative warrant is not necessary under the prior holdings of this Court. The complaint about the inventory inspection is that it was not really done for administrative purposes because there were no records there. Our answer to this is that it is clear that inspections of inventory are crucial to enforce both the registration requirement and the record keeping requirement, first to make sure that the records are accurate, but in this case since there were no records there, the purpose of the administrative examination of the inventory was to make sure that vehicle dismantlers didn't develop this huge loophole. If vehicle dismantlers knew that they could not produce records and thereby forestall a search, inspection of inventory, then clearly unscrupulous vehicle dismantlers would decide not to produce their records at the scene. In addition--
Sandra Day O'Connor: There is some suggestion in cases that one of the factors we would look at would be whether there are limits placed on the discretion of the inspectors, in this case the officers?
Elizabeth Holtzman: --Yes.
Sandra Day O'Connor: And I wonder if you would like to comment on the extent to which you think that these particular statutes have such limits. I guess we have two here, the city of New York and the state law.
Elizabeth Holtzman: Yes.
Sandra Day O'Connor: I don't think I saw any limits at all on the city's ordinance, and I am not sure there are very many in the state statute.
Elizabeth Holtzman: Let me address the state statute first. Under the state statute, there are clear limits as to time. The only times at which the administrative search can take place are during regular and usual business hours. Secondly, with respect to the place, the only place that the administrative inspection can take place is on the premises; with respect to records and inventory or materials covered by the record keeping requirement that are on the premises; with regard to the scope, only with respect to the records and with regard to inventory covered by or required to be kept by the records. There is no suggestion whatsoever in the record, and in fact it doesn't exist, that this search was anything other than a normal, routine administrative search for books and records to ensure compliance with the statute.
William J. Brennan, Jr.: Well, Ms. Holtzman, doesn't the statute limit to six in six months the number of warrantless searches that may be made?
Elizabeth Holtzman: No. There is no maximum limit on the number of searches permissible under the statute. But to answer Justice O' Connor's second question about the New York City ordinance, the city ordinance has been construed by a trial court, not by a higher court, as requiring reasonable... inspections during reasonable business hours. While that statute might need more creative construction to bring it into line with some of the Court's prior precedents, we believe that it could and would be so construed by the New York State courts.
Antonin Scalia: Why don't they use administrative officers, if this is an administrative search? I mean, isn't that part of the problem here, you are using just ordinary law enforcement officials to conduct what you say is an administrative search?
Elizabeth Holtzman: Well, there is nothing in the record, Your Honor, with respect to why New York State used police officers, but they do use Department of Motor Vehicles officers to conduct administrative searches under the statute as well. But in the Biswell case, the statute was the government's licensing scheme with respect to gun owners, was enforced by U.S. Treasury agents who are, in effect, the equivalent of New York City police officers. They were carrying... they have the authority to carry guns and they have the authority to make arrests of all federal crimes, just as a New York City police officer has the authority to make arrests within the limited jurisdiction of crimes under the New York City statute. In addition, under the prior rulings of the Court, the reasonableness of the administrative scheme has to be weighed against the expectations of privacy on the part of the defendant, and the expectations of privacy with respect to the industry or people involved in the industry here.
Antonin Scalia: Who administers this administrative scheme? Who is in charge of overseeing the entire operation of these laws? Is there an administrator? I mean, is there somebody with a title, administrator of chop shops or something?
Elizabeth Holtzman: There is really nothing in the record that completely explains the administrative scheme, to respond to your question, except to say that the scheme is enforced both by Department of Motor Vehicles personnel. It is my understanding that in the past, from time to time Department of Consumer Affairs personnel also enforce the regulatory scheme and then police officers, as part of a special auto crimes unit, would engage in routine inspections under the administrative statute. And indeed the routine... the administrative quality of this inspection is shown by the questions that were asked when the police originally arrived. As the record shows, the police had no hint, suspicion, hunch or anything, or tip that there was any criminal activity going on, on these premises. When they arrived the first questions that they asked were, are you registered as a vehicle dismantler under the registration requirement, and do you have the police book, the records required to be kept. Then when they answered no to that, they went ahead and inspected the inventory which is, as the record shows, the normal procedure whether the records are there or not. With respect to the privacy interests involved here, they are marginal and negligible at best. In the first place you have, in this case, the business of the vehicle dismantler being conducted in an open field, if you can imagine an open field in Brooklyn. There were no structures on the field. Indeed, there was no demarcation of what was public and what was private. This is typical of junk yards. Indeed, the word "junk yards" suggests that much of the business is going to be conducted out in the open as is typical with regard to large vehicles which are dismantled, and the scrap business. In addition, there was a very wide entrance way to this vehicle dismantler's premises, of 20 to 25 feet in width. Moreover, people were admitted to these premises. The public came on to sell the dealer refrigerators, scrap, automobiles, and this is typical of the vehicle dismantlers business. Vehicle dismantlers must do commerce with people coming in for the purpose of buying the vehicles to begin with, and of selling the results of their dismantling. Third, what was the nature of the inspection of inventory that took place? It was simply the inspection of vehicle identification numbers or VINs which, as this Court has recognized in the past, for which the Court has recognized in the past, there is no expectation of privacy. It was at most an extremely unintrusive search of the inventory. And in addition, this is an industry that has been pervasively regulated, so the expectations of a person entering into the vehicle dismantler business, with regard to privacy, are low. With regard to junkyards, a lower court in New York has found that secondhand dealers, junkyard dealers, have been regulated for more than 140 years.
William H. Rehnquist: Do you think the length of time makes a difference, Ms. Holtzman? I mean, does it have to have gone on for a given period of time before the service scheme will be upheld?
Elizabeth Holtzman: Not necessarily, Your Honor. I think, however, in this case where you do have a very lengthy scheme of regulation, both with regard to the secondhand... people who deal in secondhand goods, with regard to people who sell motor vehicles, that you do have a reduced expectation of privacy. In addition, Your Honor, as this Court has mentioned in the past, you have a registration requirement under this administrative scheme, so that the person engaged in the vehicle dismantlers business has, it seems to me for these reasons, a lower expectation of privacy than someone who wasn't in this business. The final--
Antonin Scalia: Ms. Holtzman, before you go on, I am not sure what was the relevance of the factors you mentioned a little bit earlier, that this was an open field in Brooklyn and the entrance was very wide and the public came on. What do you mean to establish by that? Do you assert that the search would have been valid even without the justification of the regulatory scheme?
Elizabeth Holtzman: --No, no.
Antonin Scalia: Well, then how does that have any... how does that have bearing to your case?
Elizabeth Holtzman: The regulatory scheme itself, we argue, is reasonable. But in addition, in this case you have lower expectations of privacy in part because of the nature of the business that was conducted, and in part because of the premises of this defendant, and in part because of the regulation, the pervasive regulation of the industry that the defendant--
Antonin Scalia: Well, are you inviting us to hold that this is okay, at least where what you are doing is going into an open field that has a 20-foot entrance and where the public come on, but it might not be okay if it were walled in, if it were an inside premises, if the public was only admitted through a narrow door and after checking their credentials or whatever? I'm not sure what you want us to do with these, you know, specific factors that you have brought out.
Elizabeth Holtzman: --They are not determinative, Your Honor. They simply suggest... the determinative factor is the nature of the administrative scheme and the pervasive regulation of the industry. But we also think that in addition to that you have other factors affecting the nature of this industry that reduce the level of privacy interest.
Antonin Scalia: It's not the whole industry. The factors you have mentioned just apply to this particular yard, and I don't know how that's relevant to your defensive scheme on its face, which is what I assume you are interested in doing here.
Elizabeth Holtzman: Perhaps I didn't make myself clear. I am not sure that... I didn't say that these factors applied only to the defendant. I think it is typical of the vehicle dismantlers industry in general that much of the activity is conducted in the open, that in addition to that there is commerce back and forth of people who come to do business. The final reason that we would urge that the defendant's interest in privacy is low is because of the... is because he cannot create an expectation of privacy by committing an illegal act. A legitimate vehicle dismantler, under New York State, who is obeying the regulatory scheme would have had books and records there and therefore the inventory could have been inspected both for the purpose of checking against the books and records to determine the books and records were accurate, and for the other administrative purposes I have mentioned. This vehicle dismantler would have this Court believe that by violating the law, by removing his books and records or by never keeping them in the first place, he can create a new special privacy interest in an inventory that a law-abiding vehicle dismantler would not have. And I think that position is untenable, as this Court has held in Class, New York versus Class, the artificial creation... the creation of an artificial encumbrance doesn't undo lack of privacy that existed in the inventory to begin with. So, in conclusion, I would say that this--
John Paul Stevens: May I just on that last argument, I'm not really sure I follow it because if, as your opponent contends, the statute is unconstitutional, then the dismantler who keeps the records could show them and say, but I'm not going to let you look at anything.
Elizabeth Holtzman: --That's true.
John Paul Stevens: So then, he's really no better off by not keeping records than if he kept records, so he has not created an additional expectation of privacy by refusing to obey the law?
Elizabeth Holtzman: But the statutory scheme creates a low level of expectation of privacy because vehicle dismantlers are required to keep books and records.
John Paul Stevens: Right.
Elizabeth Holtzman: And can expect that there will be an inspection, not only of the books and records but of the inventory to match against the books and records. This vehicle dismantler says, I have a higher expectation of privacy in my inventory because I am not keeping books and records. I am violating the law and that gives me a higher interest of privacy in this inventory. And I submit, respectfully, that that argument is absurd.
John Paul Stevens: It doesn't give him any higher expectation of privacy than one who keeps records and says, I am going to violate the law by not letting you see the vehicle because I think the statute is unconstitutional?
Elizabeth Holtzman: Well, you could make the argument, the statute is unconstitutional. But that doesn't mean--
John Paul Stevens: It's certainly not a frivolous argument.
Elizabeth Holtzman: --That's not a frivolous argument but it wouldn't depend, therefore, on the privacy interest in an inventory created by not keeping records. And that's the problem with the Court of Appeals decision in this case. The Court of Appeals said that the reason this statute was not a legitimate administrative statute and had no legitimate administrative purposes was because there could be an inspection of an inventory in the absence of records.
John Paul Stevens: I see.
Elizabeth Holtzman: I reserve the balance of my time.
William H. Rehnquist: Thank you, Ms. Holtzman. We will hear now from you, Mr. Mahler.
Stephen R. Mahler: Mr. Chief Justice, and may it please the Court: The facts of this case and the collection of New York State appellate cases that we cite in our brief amply demonstrate the infirmities of the statute under consideration. We submit this was an ordinary type warrantless search by regular New York City police officers without any discernible administrative function, who did not even consult with any administrative agency either before or after they took their action. And petitioner conceded in a New York State Court of Appeals brief that the immediate purpose of the action was to uncover evidence of crime, and that led the New York Court of Appeals, which quoted that concession in their opinion and led them to construe the statutes... it's really convenient devices to enforce the penal law without a warrant.
William H. Rehnquist: Well, don't you think in Colonnade and Biswell, one of the purposes of the law enforcement officers was to discover some evidence of crime?
Stephen R. Mahler: Yes, and Mr. Chief Justice, the petitioner falls back to try to dilute that concession in this Court, falls back on the argument that there may be some secondary administrative value to these so-called inspections. Well, that's true in any case. Any time you have a criminal... a search for criminal evidence where the target is a licensee, it could be a law office and if you go in without probable cause and you search a law office for criminal evidence and you find criminal evidence and you report it to the bar association, conceivably it's going to have some administrative effect secondarily. But this Court in none of the line of cases has ever held that where the immediate purpose, the very immediate purpose--
William H. Rehnquist: Well, what does the word "immediate", modifying the word "purpose", add to the word "purpose"?
Stephen R. Mahler: --Well, it was their prime goal in this case, was to uncover evidence of crime, Mr. Chief Justice, and this Court has never held that when the prime goal was to uncover evidence of crime, that the search warrant requirement of the Fourth Amendment was unnecessary.
Antonin Scalia: Don't you think that's the prime goal of the administrative scheme? Don't you think the administrative scheme would have that as its prime goal even if it were administered not by policemen but by... I don't know, commissioners?
Stephen R. Mahler: Justice Scalia, I don't think that that's their prime goal. I think the prime goal under an administrative scheme is administrative. The petitioner relies heavily, for instance, on Biswell.
Antonin Scalia: Why are they administering this scheme? Is it a health factor, they are worried about contagion from junkyards?
Stephen R. Mahler: No.
Antonin Scalia: The whole purpose of it is to prevent people from chopping up stolen vehicles, isn't that the whole purpose of the entire--
Stephen R. Mahler: That's correct, but that's administrative. Find the evidence that you did it, is criminal. That's the... there's a distinction between what starts out as an administrative scheme and what is directly seeking to recover evidence of criminality.
Antonin Scalia: --I must say, I don't see the distinction. The purpose of the administrative scheme is to make sure that anybody who runs a disassembly operation and is fencing stolen cars can be found out because you make them keep records and you make them allow the things to be inspected. The whole purpose of doing that is to assure that if he has a stolen car there, it will be discovered. Isn't that the whole purpose of the scheme?
Stephen R. Mahler: No. I respectfully disagree. I think it's to... step one I agree with, but I think it's to prevent the traffic in the stolen vehicle. But for step two, to find out if they possessed the stolen vehicle, I think that requires a warrants.
William H. Rehnquist: I think Justice Scalia's question was addressed to the purpose of the administrative scheme, not whether it required a warrant or not.
Stephen R. Mahler: Well, if we can go back to Biswell which is so heavily relied upon by the petitioner, petitioner ignores the evolution of the law in the most recent cases of the Court, by the way, but I'll get back to that. In Biswell and in Colonnade, I believe, the alcohol and tobacco and firearms officers in those cases, they were actually administrative enforcement officers without general police duties, and the--
William H. Rehnquist: --Well, what difference does that make?
Stephen R. Mahler: Because it comes from an administrative agency. It's supposed to be an administrative statute.
William H. Rehnquist: Well, what is an administrative statute? I mean, I think you're just using a lot of terms that may not have a great deal of meaning.
Stephen R. Mahler: Well, Mr. Chief Justice, we're trying to bring out that an administrative statute serves a strictly administrative purpose. It's not to recover evidence of crime. It's perhaps to--
William H. Rehnquist: Well, when these people walk in... when the inspectors walk into the yard here and they say, do you have your police book, the guy answers no. Now, that's evidence of crime right there, isn't it?
Stephen R. Mahler: --Yes. In fact, the person who says that he doesn't have a police book and who is taken to be a dismantler is guilty of a misdemeanor under New York State law.
William H. Rehnquist: So, any time you have an administrative statute or, as you call it, an administrative scheme, the requirement requires the keeping of records and someone is going to come around to see if you have records and they ask you the question, do you have any records, you answer no. There is evidence of crime right there.
Stephen R. Mahler: Yes, but the difference between that and the actual search for evidence of the crime is that the New York Court of Appeals saw fit to draw the line at that point and to say that it would be quite all right for the police to ask to inspect the records, but not to go further to try to seek out criminal evidence.
William H. Rehnquist: In other words, if a man complies with the law and keeps records, they can be inspected but if he doesn't keep records the police are stopped stone cold?
Stephen R. Mahler: Well, they are not. In this particular instance, under these statutes, if the man doesn't keep records he's guilty of a misdemeanor. And conceivably the police at that point can go and seek a search warrant based on the fact that he obviously has a junkyard filled with automobile parts and hasn't catalogued them and hasn't kept the police book.
William H. Rehnquist: Well, they could perhaps get a search warrant. I guess the question here is, does the Constitution require them to. Well, in Biswell it was a Treasury agent, wasn't it?
Stephen R. Mahler: Treasury agent, yes.
Byron R. White: And they are the ones with the authority to enforce that Act?
Stephen R. Mahler: Yes, but Mr. Justice White, again a Treasury agent--
Byron R. White: And furthermore, the agent was accompanied by a policeman.
Stephen R. Mahler: --Well, that's true. In that case he was accompanied by a policeman. But the facts of that case... that case did not turn upon that fact. The agent was still--
Byron R. White: It doesn't turn on... or it didn't seem to me to turn on the fact that he was to be considered an administrative officer--
Stephen R. Mahler: --He was connected--
Byron R. White: --rather than a policeman. The case didn't even mention it.
Stephen R. Mahler: --The Treasury agent again, Mr. Justice White, is someone who is an administrative enforcement agent. He actually comes out of an administrative agency.
Byron R. White: He's got power of arrest.
Stephen R. Mahler: He has power of arrest, but not general police duties. The same way, an Alcohol, Tobacco and Firearms person. He's there to enforce an administrative statute, not to gather evidence of crime, as we had in this case.
Antonin Scalia: You assert that this would be perfectly okay if they had used administrative officers instead of policemen?
Stephen R. Mahler: Well, that gets to part two.
Antonin Scalia: Even though, as I think the whole purpose of the statute is to uncover evidence of crime?
Stephen R. Mahler: Yes. Well, that gets to part two of the argument, actually. If I just may delineate between the two statutes, clearly there are two statutes at hand here. Clearly the city statute cannot be conceived as being constitutional in any way, shape or form. The city statute merely is authority for the Police Commissioner to conduct his police duties. It really authorizes nobody else but the Police Commissioner. It doesn't speak of anybody in an administrative capacity. And, 415-a of the state law, the Vehicle Dismantler Law, that authorizes any police officer to search. That doesn't really try to even separate out a regular police officer with general police duties from anyone else that wants to use this particular statute to make warrantless searches. The Auto Crime Division in New York State have a wonderful gift in this statute. It certainly separates them from any other police officer. It certainly could be said in that same vein that a drug enforcement officer could... or the Drug Enforcement Administration in New York State could petition the legislature to pass a similar statute and call it administrative and declare that there's a great health problem as far as possessing and using drugs are concerned, and to search any premises administratively to recover evidence of drug trafficking. We think there are two issues in the case, the first being whether the subject matter of the statutes is one to be granted exemption from the warrant requirement of the Fourth Amendment, and two, whether the statutes themselves in this instance are sufficiently tailored to the state's proper objectives to adequately minimize the dangers inherent in the unbridled exercise of administrative discretion. These statutes have really no requirements. There's no strictures at all. They speak not of any target selection. They don't speak of the frequency of the inspection or the scope of the inspection, the duration of the inspection or the prohibition against forcible entry. There is no standard for the industry to guide the licensee. The statutes contain nothing. And under your... the most recent cases by this Court, in Donovan against Dewey and Marshall against Barlows, certainly these statutes in 415-a wouldn't be an adequate substitute for a search warrant.
John Paul Stevens: Mr. Mahler, can I ask you a question? Supposing they amended the statute to provide that these searches shall be conducted by... a police officer should have an administrative warrant in his possession at the time he makes such search, and the Commissioner or Police is authorized to issue administrative warrants designating the order in which searches shall be made, but he can just pick anybody out of a hat and say, I want you to search these five or six people today. But then, you just have them grind out an administrative warrant on a form and sign it. Would that make the statute constitutional?
Stephen R. Mahler: We don't believe so. We would urge that it wouldn't. We would urge that police officers should never be administrative inspectors, police officers with general police duties.
John Paul Stevens: What if they refined it by saying, there shall be created within the police department an auto inspection division... an auto inspection administration headed by a lieutenant who has been on the force in auto work for five years or more, and then he had the authority to give the warrant?
Stephen R. Mahler: Well, we urge that that's to the entire point of this. The Auto Crime Division, that's precisely what their primary function is, to search for criminal evidence of auto crime, and we don't believe that they could ever really be really, truly administrative inspectors. Yes, maybe something secondarily might fall off in an administrative vein.
John Paul Stevens: Well, let me amend it once more. Say they created a new administration which shall be composed of those officers who heretofore have been engaged in work of this kind at the police department and the former lieutenant in charge of that division shall be the new administrator, and that in order to qualify for that job you have to have five years of police work in auto crimes. Would then it be constitutional?
Stephen R. Mahler: As long as the prime focus is not to gather evidence of crime.
John Paul Stevens: Well, it's to conduct a lot of inspections which will discourage people from engaging in this sort of activity, in criminal activity, and catch them if they do engage in it?
Stephen R. Mahler: It's just too fine a line to draw, we would urge, the difference between someone who is basically a cop and someone who is basically an administrator.
John Paul Stevens: So, it's not that the absence of an administrative warrant; it's the fact they used police officers?
Stephen R. Mahler: Well, no. We are urging both. We think that there should be at least an administrative warrant and it shouldn't be by police officers at any time.
Antonin Scalia: And if you asked the administrator, whoever it was, what's your job, what do you think he'd say his job was? "My job is inspecting inventory"? He'd say, "My job is to try to prevent stolen autos from being chopped up. " Isn't he doing the same thing that the police are... in other words, isn't it... although you purport to be objecting only to the fact that this statute is being implemented by police officers, isn't your basic objection that you cannot have... and it may well be a valid one, but isn't basically what you are saying, that you can't have a regulatory statute whose purpose is not somehow to regulate the operations of an industry but whose whole purpose is to determine whether that industry is violating some other laws?
Stephen R. Mahler: I would agree.
Antonin Scalia: So you are... I don't think you'd be contented if there was an administrator who did the same thing that the policeman did here. You'd still say the whole object of--
Stephen R. Mahler: His immediate purpose as--
Antonin Scalia: --But doesn't it have to be his immediate purpose under this law? What else is the law for? It's to uncover stolen cars.
Stephen R. Mahler: --I think that the law is to regulate and not to take the further step of actually gathering the evidence of a crime.
William H. Rehnquist: Well, Mr. Mahler, for many years, I don't know if they're still doing it but I think it was the Harrison Act, required all pharmacies to keep a poison register where you had to sign if you took out any of a number of scheduled substances, and I daresay there were inspections provided to see if the poison registers were kept. Now, would that fall afoul of these strictures that you find in the Constitution? I mean, I'm sure the poison register was just to see whether the pharmacists were complying with the law.
Stephen R. Mahler: Well, the New York State Court of Appeals actually drew that line. They said that there was nothing wrong with merely inspecting the records, but the Judge Friendly case that is cited, Turashiano against Montaigne, dealt with a problem in that field. Judge Friendly emphasized that the New York statute authorizing inspections of druggists, narcotic records, had been amended to restrict the right of inspection to representatives of the Health Department rather than all peace officers within the state. He emphasized that distinction, but I think the New York Court of Appeals was willing to let police officers have the right to come in and actually inspect the books. But what the objection was, was to step two where you try to compare the book with the products in the art.
William H. Rehnquist: Well, here there were no books to compare.
Stephen R. Mahler: Here there was nothing. Here the officer conceded that he had no administrative purpose.
William H. Rehnquist: Well, you know, I don't know who conceded what. You could say equally well the defendant conceded he didn't have any books.
Stephen R. Mahler: But the whole idea of it was, there was no purpose at all. There was nothing administrative. He had no administrative purpose at all. He didn't even have a book. He didn't call any administrative agency, and he was stuck with the fact that when cross examined, as you can see from the record, he was stuck by the fact that all he was in there for was to write down VIN numbers and to call them in to see if the parts that were found in the yard were stolen.
Byron R. White: Did you argue the case in the Court of Appeals?
Stephen R. Mahler: Yes, I did.
Byron R. White: And did you argue it on a state constitutional basis?
Stephen R. Mahler: I did, yes. It was argued on a state constitutional basis.
Byron R. White: And did the state court deal with that at all, or just passed it?
Stephen R. Mahler: Yes, they did.
Byron R. White: And preferred to put it on the Fourth Amendment?
Stephen R. Mahler: Yes. That's what happened. If there are no other questions.
William H. Rehnquist: Thank you, Mr. Mahler. Ms. Holtzman, you have 12 minutes left should you choose to use them.
Elizabeth Holtzman: Mr. Chief Justice, I'll just take one or two minutes simply to point out that the purpose of the statute and the purpose of the administrative scheme is not to uncover evidence of crime in a particular case. The purpose of the scheme is to, in the end, deter auto theft, to make sure that the vehicle dismantlers industry is not a tool for fencing, to trace cars, and to return stolen cars. There is no purpose in the administrative scheme to uncover evidence of crime in a particular case. Indeed, the administrative scheme in Biswell, and as the Chief Justice pointed out, it's hard to envision an administrative scheme that's not enforced in some way with criminal penalties. I would also like to point out that the administrative search here involved no home and involved the inspection of the kind that I noted before. Under the prior precedents of the Court, I believe the administrative scheme is wholly reasonable in terms of the State of New York's desire to deal with the problem of auto theft, to trace problems of stolen cars, and we urge that the statute--
Sandra Day O'Connor: Ms. Holtzman, are you familiar with the laws in other state that deal with this same problem, generally speaking?
Elizabeth Holtzman: --Yes, Justice O'Connor. There are--
Sandra Day O'Connor: Some 33 states?
Elizabeth Holtzman: --Yes, 33 states. It may be more. I can't tell you that our search--
Sandra Day O'Connor: Do most of those statutes have provisions for administrative warrants?
Elizabeth Holtzman: --I don't know the answer to that, but we could provide it for you.
Sandra Day O'Connor: That's all right. Thank you.
Elizabeth Holtzman: Thank you.
William H. Rehnquist: Thank you, Ms. Holtzman. The case is submitted.


William H. Rehnquist: We'll hear argument next in No. 01-301, Tom L. Carey v. Tony Eugene Saffold. Mr. Cross.
Stanley A. Cross: Mr. Chief Justice, and may it please the Court: AEDPA's language, purpose, and legislative history supports the conclusion that the circuit conflict over the meaning of pending in 28 U.S.C., section 2244 (d)(2) can be resolved by reversing the Ninth Circuit for one or more of the following three reasons. First, the Ninth Circuit improperly permits tolling for substantial delay if the State Supreme Court addresses the merits when denying an application for collateral review. Second, under California's system of successive original petitions, nothing is pending under State or Federal law following the denial of an application for collateral review and prior to the proper filing of a new application for review. And third, the gap theory relied upon by the district court more accurately reflects congressional intent and the policy judgments underlying AEDPA's 1-year statute of limitations than does the Ninth Circuit's interpretation of pending--
Sandra Day O'Connor: Mr. Cross, would you explain to us what it is in California... what is the system and the time within which post-conviction relief can be applied for in California courts? Is there any time limit for filing it with the trial court level?
Stanley A. Cross: --It's within a reasonable time, Your Honor, the general rule of timeliness. However, within a reasonable time has parameters which I can give you the case of In re Harris, a California Supreme Court case, which addresses that. Specifically, it says the following in footnote 7. That's... the cite is 5 Cal. 4th at 828-829. Footnote 7 says the following. The general rule regarding timeliness is the habeas corpus petition must be filed within a reasonable time after the petitioner counsel knew or with due diligence should have known the facts underlying the claim, as well as the legal basis of the claim. They then follow that up with two significant points. The first is, is that ineffective assistance of counsel claims, which is the claim in this particular litigation, should be filed as a verified... excuse me... a verified petition jointly with the direct appeal. In other words, if you know about the claim, you should file it at that time. Now, as far as how long you should be able to wait, the rules specifically state with regard to capital cases, which are considered to be much more complex than the average non-capital case, they give them a 90-day period in which there is a presumption of timeliness so that there is no substantial delay. You have a presumption that you have not exceeded substantial delay if you do it within 90 days.
Sandra Day O'Connor: All right. Now, here there was a prompt filing in the... at the trial court level.
Stanley A. Cross: Pardon?
Sandra Day O'Connor: Here there was a prompt filing at the trial court level for habeas, State habeas.
Stanley A. Cross: I would... Your Honor, I would respectfully disagree that it was prompt since he waited 5 years--
Sandra Day O'Connor: Well, all right. It was... it was within the statutory period that we have imposed for these situations where it had... AEDPA became effective.
Stanley A. Cross: --He filed his claim with 7 days remaining--
Sandra Day O'Connor: Okay.
Stanley A. Cross: --in the grace period of the statute of limitations.
Sandra Day O'Connor: Now, after the trial court resolved it and denied relief, then there's no review mechanism other than filing an original writ with the court of appeals?
Stanley A. Cross: Correct.
Sandra Day O'Connor: Is that how it's done?
Stanley A. Cross: Correct, in California.
Sandra Day O'Connor: And is that again a reasonable time period within which to seek review by that mechanism in the court of appeals? Or is there a time limit?
Stanley A. Cross: As far as the... the time between each original petition, there is no time limit. You would be looking at the overall time period because you're dealing with... Your Honor, with original petitions here. So he has every right in California to go directly to the California Supreme Court or the Third District Court of Appeal.
William H. Rehnquist: Well, that's the traditional rule in habeas corpus, at least in... in England.
Stanley A. Cross: Correct.
William H. Rehnquist: Wasn't it? That you could go from one court to another and have... have a different judge look at it in a different proceeding and get a different result.
Stanley A. Cross: Absolutely, Your Honor.
David H. Souter: But if he goes... if he's... I take it, under the California system, if he starts in the Supreme Court of California, and there's a fact issue, they're going to say, go back to the trial court and start there. They're not going to have a factual trial, are they?
Stanley A. Cross: In fact, Your Honor, I'd like to correct a misunderstanding that's promoted by the respondent's brief. If you look at the red brief at page 31, it gives the impression that you are indicating that if you were to go directly to the California Supreme Court--
William H. Rehnquist: Whereabouts on page 31?
Stanley A. Cross: --On page 31 at the top paragraph, there's a reference in the third line to In re Hillery. Then there's a reference, the Ninth Circuit case, Harris v. Superior Court, indicating that California appellate courts may refuse to entertain habeas and that it be sent back to the trial court. That's an incorrect statement of law, and I'll refer you to the actual footnote on that page, footnote 19, referring to California Rule of Court 56(a)(1). The problem with respondent's position is that he gives a literal quote of 56(a)(1) and it sounds like that's the proposition that you're referring to, but he ignores to cite to the subsection (h), which is, as of January 1st of this year, is now labeled subsection (i), which specifically states, quote... and the title of the subsection is proceedings not covered by this rule. Quote: the provisions of this rule shall not apply to applications for a writ of habeas corpus or to petitions for review pursuant to rules 57, 58, and 59.
David H. Souter: Well, what happens--
Antonin Scalia: --So, you... you can begin in a higher court.
Stanley A. Cross: Yes.
Antonin Scalia: You don't have to begin--
Stanley A. Cross: Right, correct.
David H. Souter: --What happens if you do begin in a higher court and... and there are disputed factual issues? How do they resolve the factual issues?
Stanley A. Cross: The... that is explained, Your Honor, in Harris v. Superior Court, the Ninth Circuit opinion--
David H. Souter: Well, I haven't read--
Sandra Day O'Connor: --Why don't you tell us?
Stanley A. Cross: --I will tell you, Your Honor. The... the way it is handled is the California Supreme Court around 1969 set up a procedure in which for original petitions in the appellate court that are filed there, either in the... the district court of appeal or the California Supreme Court, they can have a special master, or they can send it back to the trial court, so that there's no prevention from them taking the court and deciding it with or without the hearing. But a prima facie case must be made to them in order for those--
William H. Rehnquist: Did... in the proceedings involved in this particular case, did either of the appellate courts go the... do that?
Stanley A. Cross: --No. There was... the... the district court of appeal is a one-line denial, simply stating denied. And in the California Supreme Court, the petition was denied on the merits and for lack of diligence.
Ruth Bader Ginsburg: But in this--
Anthony M. Kennedy: --What happens just as a practical matter? You go to the superior court on a collateral attack with a... with a petition for a writ, and the court makes lots of findings and rulings of law. Some of those rulings of law are absolutely wrong, but still, the ultimate outcome may be in doubt. And so then the petitioner, the original petitioner, wants to go to the court of appeals. Does... does he annex what happens in... in the superior court just for the enlightenment of the court of appeals as to what the issues are or what the wrong rulings were, what the right rulings were, what the findings were?
Stanley A. Cross: The forms, Your Honor, are in the joint appendix where you are expected to indicate... it's... all three petitions use the same judicial counsel form. California Supreme Court petition... if you want to look, it starts at page 31. And there... I believe there is a question which asks the defendant if they've sought review in another court and to explain what the finding was of that court and what claims were requested. That would be, for example, question 9, did you seek review in the... excuse me.
Anthony M. Kennedy: Well, it's just background. I... I see where to find it now.
Stanley A. Cross: The... that's the extent of it. And so, the purpose of that question is to determine whether or not it's a... it's a successive petition so they cannot... if they had gone to the lower court, it can't be remanded back because the... if the petition has been denied in the lower court, they don't want to send it back for an evidentiary hearing to the same judge or court who has gone through the proceeding before and denied it.
Anthony M. Kennedy: Well, getting to the issue in the case, the respondent's brief points out that under the theory you propose, what would happen if it's the... the State that's appealing or filing a new... not appealing, but filing a new action? The... the prisoner wins in... in the lower court, and then the State files an action. How... how would you count that or not count that so far as the limitations period is concerned?
Stanley A. Cross: That is the most difficult question that is posed, without question, Your Honor. The response I would have is it appears to me that Congress perhaps did not think of that particular scenario other than perhaps that under 2244(d)(1)(B), the State-created impediment issue would take care of the extreme case where the... where the State was trying to prevent the person's time from--
William H. Rehnquist: This is the case where the petitioner prevails--
Stanley A. Cross: --Right.
William H. Rehnquist: --in superior court, and by statute, now California allows the State to appeal that.
Stanley A. Cross: Correct, Your Honor.
William H. Rehnquist: Well, certainly that would be... that would be pending all that time, would it not?
Stanley A. Cross: If you--
William H. Rehnquist: Or would it not?
Stanley A. Cross: --If you take the position that it's not an appellate system in a State like California, I don't think it would be.
William H. Rehnquist: Well, but you know, it can... it could be not an appellate system from the point of view of the petitioner who has to have an original petition each... each time he goes again to a new court. But the legislature said, with respect to the State, if the... if the State loses, it can appeal, then that would be an appellate proceeding, wouldn't it?
Stanley A. Cross: For California... under California law, Your Honor, absolutely. But as far as this statute is concerned, I think we're interested in what the Federal law is and how the Congress would have viewed it.
Stephen G. Breyer: So, looking at how Federal law--
Anthony M. Kennedy: --But I... but... if... if I may, just one moment, Justice Breyer. What the Chief Justice suggests is that I... I did not pose a problem because what happens is is that the State simply appeals the... what it thinks to be the erroneous ruling, and that means the action is still pending. But I... I thought from our earlier interchange that you thought there was a bigger problem than that.
Stanley A. Cross: I think there is a bigger problem because if there is... it depends on when finality occurs, and if... if you have an original proceeding and the decision is final upon that decision, the clock would, I would assume, start at least under California law. The case laws that's referred to in the yellow brief under subsection (c)--
Anthony M. Kennedy: Well, but the Chief Justice suggests it's not rocket science for us to say it's still pending if there's an appeal.
Antonin Scalia: Well, I... I thought your--
Anthony M. Kennedy: --Or am I missing something?
Antonin Scalia: I am confused now. I thought your position was that the case may well be pending, as Justice Kennedy says, but there's no application pending--
Stanley A. Cross: --Correct.
Antonin Scalia: --on the appeal. The application has been disposed of in the first court. There's an appeal, but there's no longer an application pending. And that's how the statute reads, not the case is pending.
Stanley A. Cross: Right.
Stephen G. Breyer: There is an appeal? I thought that what happened... I guess I'm mixed up. Maybe go back to Justice O'Connor. But I thought I understood this. I thought that they... but that there is... first of all, you file in the district court normally. You don't have to in California.
William H. Rehnquist: Superior.
Stephen G. Breyer: But almost always they'll go to the superior court and file a petition. And then in every other State, the losing party would appeal, but in California, they use different words. The words are not you appeal; the words are you file a new petition in the court of appeals. And indeed, if you lose there, the words are not you have 10 days to seek review in the Supreme Court; the words are you have whatever time you want. You have to file a new petition in the Supreme Court, but if you're too late, they're going to tell you you're too late. So, it functions exactly as if the words were the following. You must appeal within... now, normally it will say 60 days, but in California it says within a reasonable time. Now, those aren't the words of the statute, but that's how it functions. And if we don't read it that way for purposes of Federal law, I guess we'd have to say that in 10,000 case a year in the California superior courts involving State habeas petitions... as soon as those are decided, they have to come here because they're all final decisions of the State Supreme Court. And 5,000 cases in the courts of appeals in California. Once they said final, they have to come here. So, we better have 20,000 new petitions each year from the State of California because California happens to use the word final and new petition instead of using the word appeal. Now, what's wrong with what I said?
Stanley A. Cross: What's wrong with what you said, Your Honor, first of all, is that although California may say that it's final at that level, it does not prevent the individual from going to either of the other two next levels or skipping one and going to the other because they are in fact original and in fact not... it's more than just mere semantics because they can go to California with different claims. It doesn't have to be the same petition at all.
William H. Rehnquist: Justice Breyer suggests that when you go, say, from the superior court to the district court of appeal, it's... it's like an appeal. Well, now, is there a transcript of the record made in the superior court that you have to file with the district court of appeal like you would in other appeals?
Stanley A. Cross: Typically not. There could be some circumstances, under rare circumstances, where the superior court would have some sort of evidentiary hearing. There would be a transcript.
William H. Rehnquist: Do you have to file a notice of appeal in the superior court to go to the district court of appeal?
Stanley A. Cross: No, Your Honor.
Stephen G. Breyer: In other words, in the... I've never heard of this, and I know a lot of California lawyers. I thought when you go to the superior court in California... a prisoner and he says, I raise issues 1, 2, and 3, and they have a record and they decide it. And now you go to the California court of appeals. I thought in the normal case they'll say, and the superior court judge made an error, and the reason he made an error is because of... and then they'll cite witnesses just like an appeal. Now, I grant you they can do some extra things. They can raise extra issues if they want, and they don't have to raise everything below like any other appeal. But aside from that, I don't know the differences. I've been around for a while. I've seen a few cases. I've never noticed some big difference. Now, you'll tell me I'm all wrong about California, and I'm open to hearing that.
Stanley A. Cross: The California case law, in fact, indicates that--
Stephen G. Breyer: I'm not interested in California case law. I want to know what the practice is in California.
Stanley A. Cross: --The practice is quite different from the description that you gave.
Stephen G. Breyer: Fine. That's what I want to know.
Stanley A. Cross: In fact, there are... I don't have the exact statistics, but in my 15 years of experience in practicing, I have seen probably around 40 to 50 percent of the cases not go to the trial court, that in fact, very commonly they go directly to the California Supreme Court, and they are denied. That's a very common experience in California--
Sandra Day O'Connor: Then can they go... start over again and go down to the trial court and the court of appeals?
Stanley A. Cross: --Not... Your Honor, not on those same claims, they certainly can't. California and other States would perhaps bar successive petitions if it's the same claims. It doesn't necessarily prevent them from coming back with something else that they've discovered at a later time--
Sandra Day O'Connor: There's no bar in California to going back as many times as you want if you have a new claim each time?
Stanley A. Cross: --There are escape clauses in California, as well as other States, that... that allow you, if you discover, just like the Federal statute, new claims.
Sandra Day O'Connor: All right. What... what is the general rule in other States that are unlike California that say you go for post-conviction relief first to the trial court? Let them decide it. Then you have 30 days or whatever it is to go to the court of appeals. If that's denied, you have X number of days to go to the State Supreme Court. Now, in a State like that, is it the case that in applying AEDPA in this statute of limitations, that we exclude all of the time for decision making as well as that statutory time within which to file the appeal?
Stanley A. Cross: AEDPA grants--
Sandra Day O'Connor: Is that what a majority of courts are holding?
Stanley A. Cross: --The majority of courts are holding that... and the statute specifically provides for tolling for all the time in which the decision... excuse me... in which the petition is before a court. That's, you know, specifically provided.
Sandra Day O'Connor: Well, yes, but is it... is it the case that most courts are holding, under the scheme I described, that not only while the court is deciding it, but the time allowed to enable them to go to the next higher court is excluded as well?
Stanley A. Cross: The majority of courts are holding that you will get time for the appeal time that's specified by the State, for example, 60 days or 90 days.
Sandra Day O'Connor: Yes, all right. So, the problem with California is we have no time specified. We have a reasonable time. How are we supposed to decide what's reasonable in California? Should we certify a question back to the California Supreme Court and say, was this a reasonable time? How do we know?
Stanley A. Cross: One--
Sandra Day O'Connor: What do we do?
Stanley A. Cross: --One suggestion that was made in the amicus briefs by the Criminal Justice Legal Foundation is to adopt the nearest analogous State rule, which in California under rule 2 or 30 through 31 would be 60 days. That's one thing that could be done by the court which would stretch the statutory language to... to bring California into an appellate system which--
Sandra Day O'Connor: Wouldn't that be up to California to do? What we have is a system that allows a reasonable time. I'm asking you how we determine what is a reasonable time.
Stanley A. Cross: --I think, Your Honor, the way to determine a reasonable time would be to look at the California rules for their original habeas petitions and determine that under California law, we know that... that you are expected to file no longer than 90 days in a capital case without having a presumption of timeliness--
John Paul Stevens: May I just interrupt--
Stanley A. Cross: --And that would be the absolute outside limit for a determination of what would be reasonable.
John Paul Stevens: --But may I just ask this question? If in this case the California court did decide on the merits... apparently... it's a little ambiguous, but it seems to... wouldn't that definitely disclose a decision that it was reasonable? They took jurisdiction.
Stanley A. Cross: No, Your Honor. I... I believe that the... the interpretation would be that even though a... a State Supreme Court decided, at least alternatively on the merits... simply indicates that for one reason or another, they decided to perhaps excuse untimeliness if they didn't have a... an untimeliness finding--
John Paul Stevens: To excuse untimeliness, they're saying in this particular case we think it must have been reasonable. Aren't... isn't that... doesn't that necessarily follow?
Stanley A. Cross: --In this particular case, they said he acted with a lack of diligence.
Ruth Bader Ginsburg: But that might have been--
Antonin Scalia: --No, but it didn't excuse untimeliness. Untimeliness was one of the two bases for their decision, wasn't it?
Stanley A. Cross: In this case, absolutely.
Ruth Bader Ginsburg: We don't know whether that untimeliness was the 5 years that he took to even get started. There's one fact question here that may make the rest of this rather abstract. This petitioner says that he never got notice of the... of the intermediate appellate court's decision and he... when he did... I mean, the only gap here that's relevant for AEDPA... the 5 years is gone. He gets that free. But the only gap we're talking about, as I understand it, is the 4-and-a-half months. And he says, as to that, I never knew. I wrote a letter and finally they told me, and within 3 days after I got notice, I filed in the next court. So, I was diligent from the time I knew of that decision. There is no... there's been no determination by anybody whether that 4-and-a-half-month interval was beyond his control. I mean, you recognize that there would be an exception for situations beyond his control. So, how do we determine whether there was any lack of diligence with respect to that 4-and-a-half months? This record is totally blank on it.
Stanley A. Cross: Your Honor, this situation is even more perplexing than what you set forth because there are three possibilities. One is that it's the 5-year period the California is returning to... referring to. Another possibility it's just the 4-and-a-half-month. And the third possibility is the combination of all of those periods. The question simply is what is meant by timely and what is meant by properly pursuing.
William H. Rehnquist: Well, and also I think what is meant by pending because if... if we were... if it were determined that these separate matters, as you say, before three different courts were pending only during the time those particular courts had them for consideration, it might be quite a different result than if you say look at the reasonableness of the whole series of proceedings together.
Stanley A. Cross: Your Honor, absolutely that is correct. If we look at the language--
Antonin Scalia: Mr. Cross, as... as I understand your submission, it doesn't matter. That was not the ground on which the Ninth Circuit decided the case, you contend. They decided it simply on the ground that the Supreme Court of California addressed the merits. End of case.
Stanley A. Cross: --Right.
Antonin Scalia: Right?
Stanley A. Cross: The California Supreme Court holding and the... the problem it presents for the statute is... is that it eviscerates the statute by holding that as long as... as the State Supreme Court addresses the merits, that regardless of the length of the delay, which could be not just 4-and-a-half months in this case, but 4-and-a-half years or 4-and-a-half decades, they will excuse the delay.
Stephen G. Breyer: But isn't the... the answer that... your... your friends on the other side give a... a good answer. They say, look, the... the point of requiring speed here is to preserve the State interest and make sure States don't have to retry cases years and years later and there's relative finality and so on. If the State wants to allow this kind of, in effect, dilatory proceeding, the State has no claim to be offended by it. It's in the State's power. So, if the State wants to give you 10 years for habeas, the State hasn't got any complaint. It gave the 10 years and it can change its rule if it wants to. What's the answer to that?
Stanley A. Cross: Your Honor, the answer to that is that this is a Federal statute not a State statute. We're not changing the--
Stephen G. Breyer: It is a Federal statute that is keyed to a State statute, and the point of doing this is to preserve the State's interest in... in finality in their own proceedings and to... to protect the State from being forced, in effect, to retry cases years and years in the future after the... the evidence has grown stale.
Stanley A. Cross: --That's--
Stephen G. Breyer: And if that... if those are the objectives of the statute... and I thought they were... then California, in effect, or any State can control the proceedings simply by its own time schedule.
Stanley A. Cross: --Your Honor, that is certainly one of the objectives of the statute, but there are a number of policy interests related to the statute of limitations itself which is part of AEDPA. You're absolutely correct in that finality is one of the three main concerns of AEDPA itself, but there are other concerns and policy concerns related to the statute itself.
Antonin Scalia: Mr. Cross, a State Supreme Court that had that attitude, that didn't care that you were late, would not... would not have dismissed this case on two grounds, one of which is it's untimely. That's not what we have here. We don't have a situation in which the California Supreme Court said, we don't care how late it is; we're going to decide it on the merits. It decided on two grounds, one of which is you... you are too late under our... under our rules. And... and the Ninth Circuit just ignored that. Isn't that right?
Stanley A. Cross: That's absolutely right, Your Honor.
Stephen G. Breyer: Isn't the counter argument equally possible? A State that was really concerned about timeliness would not have decided the case also on the merits as an alternative ground. Therefore, if it does decide that it's significant enough to get into the merits, we ought to take the... the State Supreme Court at its word and say, if there was a merits determination, it obviously was not untimely in... in any dispositive sense. Why isn't that an equally good interpretation?
Stanley A. Cross: I think, Your Honor, this Court has stated before in Coleman v. Thompson that we... that you don't want to direct the State courts how to issue their rulings for whatever State reasons they have for doing it.
Stephen G. Breyer: No, but when the State says two things and they seem to be in contradiction... if it's untimely, then you don't get to the merits. It's... it's unreasonable in time. If you do get to the merits, it suggests that there is something timely about it. And all, I think, the Ninth Circuit was saying and all I'm suggesting is we're not mind readers. We can't say, well, we guess they really meant the first part of... the first reason they gave or they really meant the second reason. We're simply going to come up with a... with a rule that everyone will understand and that the State courts can understand. And if they get to the merits, we're going to deem it timely because we... we assume these people are not going to be reaching merits decisions on... on matters that are totally untimely under their law. Why... why doesn't that respect the State courts, give a rule that everybody pretty much can follow and know where he stands?
Stanley A. Cross: Your Honor, because it would, in effect, eviscerate the statute of limitations under Federal law. If you have unlimited tolling for 20 or 30 years, there is not much left of the 1-year Federal statute of limitations. And under Harris v. Reed, alternative--
Stephen G. Breyer: What's left is a 1-year Federal statute of limitations after the conclusion of the State proceedings, and if the State proceedings were begun in a timely fashion, I don't know what else the statute is supposed to accomplish.
Stanley A. Cross: --Well, Your Honor, the statute... statutory schemes across the country... there's a wide variety, of which there are over 20 States that have no statute of limitations.
Ruth Bader Ginsburg: Do you know how the California Supreme Court operates generally with respect to petitions of this kind, post-conviction petitions? Is it common for them to say on the merits, but anyway it's untimely, or do they often say it's untimely, that's the end of it without going on to the merits?
Stanley A. Cross: It's usually a combination, Your Honor. There's in fact, a dispute between the members of the California Supreme Court as to whether to even pose procedural bars. Justice Brown has argued that it only should be addressed on the merits. So, there's a combination usually or sometimes just a denial on the merits. If you don't mind, Your Honor, I'd like to reserve the remainder of my time.
William H. Rehnquist: Very well, Mr. Cross. Mr. Ogden, we'll hear from you.
David W. Ogden: Mr. Chief Justice, and may it please the Court: I would like to go directly to the two most difficult questions that I need to answer this morning and which have been addressed extensively thus far. First, that the rule adopted by the... by the unanimous courts of appeals that any gaps between stages of the State habeas process should be tolled so long as the next stage is initiated in a timely fashion should apply to California. And second--
Antonin Scalia: What happens if it... go on. Give us your second--
David W. Ogden: --And... and the second point that I'd like to address is that under that rule on the record in this case, there is an insufficient basis to conclude that the filing in the State Supreme Court was late and therefore that the judgment below should be affirmed.
William H. Rehnquist: --Are you going to cover the question of whether these various actions were pending and for how long?
David W. Ogden: Yes, Your Honor. That's the first... that's... that's the first subject that I'd like to cover because I know that one of the concerns and one of the difficulties of this case is applying the concepts of the statute to California's unique system. Now, California's system of original writ should be subject to the rule that tolls the entire period of time for two reasons. First, that is the best understanding of the text of the statute because California's system--
William H. Rehnquist: The text of AEDPA or the text of California's statute?
David W. Ogden: --Of AEDPA, Your Honor, of... of section 2244(d)(2). Because California's system functions as an integrated appellate style process for prisoners seeking to exhaust State remedies. And second, because just as in other States, the so-called gap theory espoused by the State would discourage prisoners from making full use of California's process and encourage premature Federal filings. Now, turning to the text of the statute... and Justice Scalia asked about the... about the word application in particular... Congress wrote a statute in general terms intended to apply nationwide. It does not turn on the particular form of pleading or the nature of the action. To the contrary, an application within the meaning of the statute is simply a request for relief so long as it is submitted in the context of, as the statute phrases it, State post-conviction or other collateral review. Now, that request for relief is distinct from the claims that support it, and it is pending so long as it... as it is unresolved in the State system.
William H. Rehnquist: You... you say the... the application is distinct from the claim. Granted, both words... how does that work out?
David W. Ogden: The claims are the arguments that support the request for relief in... in a habeas or post-conviction context. Typically the request is to be released from an unconstitutional confinement. That request is supported by... by a set of claims. And... and it's the request that constitutes the application.
Antonin Scalia: But, you know, we were confronted with precisely the same argument in Artuz which dealt with what constitutes a properly filed application. And the argument was if the claim is not a proper claim, if it does not lie under the State law, it is not a properly filed application. And we held, no, that's not so. An application is an application and a claim is... is a claim. And the... the application is properly filed so long as it's given to the... you know, to the proper clerk in the proper court and... and so forth. Now, dealing with the very same... very same provision of law.
David W. Ogden: Yes, Your Honor. I believe my argument is entirely consistent with Artuz. Indeed, it's... it's really based on the reasoning there. Artuz makes a distinction between bars that go to claims and bars that go to the form of the... of the application itself. My submission is that the application is the request for relief, that is, regardless of what form it takes and what kind of proceeding, it is a request that contains claims in the same way that an application contains claims. A request is an application. And that request, the request for relief, continues to be pending within the meaning of the statute until the... until it is resolved within the State system. Now, in the California system, that request for relief, that request to be released from confinement, continues to be unresolved so long as there is another court to which one can bring a... a petition to review a decision.
William H. Rehnquist: Or presumably you could go back and forth to a number of California courts, if you come up with, you know, a different argument and that sort of thing.
David W. Ogden: Yes, Your Honor, you could present different claims. But the way the California system functions is that the... the design of it where factual development is required, quite naturally, is that that claim should be brought in the superior court. As we say in our brief, if you attempt to file an original petition initially in a higher court and factual development is required, typically if it's a non-capital case, what that court will do is to issue an order to show cause, returnable in the superior court. And once you are there as a... as a petitioner, if you lose, your only recourse for further review is to file an original petition yet again above. Now, critically from the standpoint of understanding whether this is an appellate system or a system of completely independent free-standing applications, it's important to understand that when one goes from the superior court where one develops a record, Your Honor, to... to the court of appeal, that... that next filing is not considered a successive petition under California law. It's not considered a second--
William H. Rehnquist: What do you mean... what do you mean by a... do you mean the same thing as an original petition?
David W. Ogden: --It's called an original writ.
William H. Rehnquist: Yes. So, what... what do you mean by the term successive?
David W. Ogden: Successive petition is a procedural bar under California law, which if you bring a second petition that contains claims that could have been, but were not, contained in your first petition or that contains the same claims as were contained in your first petition, it's dismissed as a matter of procedural law in California as a successive petition. That successive petition bar does not apply--
Stephen G. Breyer: What does it look like in practice? I mean, I had thought, as you were saying, that whatever they call it, they call the trial court original, they call the court of appeals original, they call the supreme court original. But despite that, to an outside observer who wasn't looking at the names, it would look pretty much like any other State where you get an initial hearing and then you get some appeals. Now, there's obviously the difference, you could file new claims at the second level, but leaving that aside, it would look... now, the attorney general said I'm wrong on that, absolutely wrong, that that isn't what it looks like, that sometimes at least it's random, sometimes they... they... just as many might likely file, I guess, in the court of appeals as the district court. They might file in the supreme court. Maybe they look for appeal in the... in the trial court. I don't know. But it's a random and... and, indeed, if you go to the court of appeals, you'll see they don't even look at the record in the trial court. All right. Now, he says that's how it's worked. He's been around a long time. And at that point, I'm not sure what to do frankly.
David W. Ogden: --Well... well, it's... it is difficult because so much of this turns on California law. But--
Stephen G. Breyer: I mean, what does it look like? I don't know how you get to that question.
David W. Ogden: --Well, what... what it looks like, as described in a case called In re Resendez, which is not cited in our brief is--
William H. Rehnquist: You didn't--
David W. Ogden: --19 P. 2d, Pacific Second, 1171.
William H. Rehnquist: --What's the date of that case?
David W. Ogden: It's 2001, Your Honor.
Antonin Scalia: Pacific Second?
David W. Ogden: Pacific Third, 1171 at 1184. That... that case makes clear in discussing the situation in which a subsequent original writ is filed... originally filed in the superior court and you have findings of fact made by the superior court. It is then filed subsequently in the court of appeal and then--
William H. Rehnquist: When you say it is then filed, what do you mean by it?
David W. Ogden: --A petition encompassing the same claims is filed in the court of appeal and then again in the supreme court. First of all, the record is... the record generally forms the basis for that review. And in Gardner against California in 1969, looking at this very system for... for handling habeas petitions on original writ, this Court decided that the system was sufficiently similar to an appellate process that a habeas petitioner filing an original writ in the court of appeal was entitled at State expense to a transcript of the proceeding in the... in the superior court because the procedure in the court of appeal is essentially record review.
Antonin Scalia: Mr.... Mr. Cross said... and it would be extraordinary if it's record review, but you don't have to file the record. When... when you go into the court of appeals, do you have to file the record of... of the decision below?
David W. Ogden: You certainly can file the record and the clerk can request it.
William H. Rehnquist: Do you have to?
Antonin Scalia: Do you have to?
David W. Ogden: I don't know the answer to that, Your Honor, as to whether it's required.
Antonin Scalia: Is it ordinarily done?
David W. Ogden: I... I think ordinarily there... the record consists of the petition and the decision below. But if there is a hearing where witnesses are presented, I believe it is ordinarily done, and that's why--
Antonin Scalia: That's not what the... that's not what Mr. Cross said.
David W. Ogden: --That's--
William H. Rehnquist: What is your... I mean, Mr. Cross apparently has been practicing in California for 15 years. I think if you're going to make... you don't claim to be personally familiar with California law, do you?
David W. Ogden: --No, I don't, Your Honor.
William H. Rehnquist: Okay. Then I think perhaps you should cite some authority.
David W. Ogden: Well, I... I cite for the proposition that... that the record is part of the... the process in the court of appeal, both the Resendez case--
William H. Rehnquist: But you say the record is part of the process in the court of appeal. That's a very, very vague statement.
David W. Ogden: --Well--
William H. Rehnquist: What we want to know is typically in an appeal, you'd have a record from the superior court. You're appealing from the superior court or the district court of appeal, you have to... you must file the record. It's a part of the... before the court of appeals will hear your claim.
David W. Ogden: --The best I can do, Your Honor, is to refer to these three cases... the Resendez case, the California Supreme Court decision at... which I've given the cite for; In re Wright, which is 78 Cal. App. 3d at 801 to 802; People against Singer, which is 226 Cal. App. 3d at 32... which make clear that the process of reviewing these matters coming from the superior court where there's been a prior petition there and the same claims are brought in the next court is a process of reviewing the record, and where what is presented are findings of fact by the superior court that are based on credibility determinations, great weight is given to those credibility determinations by the reviewing court. And... and that is the... the fundamental functionality, the way the system works. It can be used in other ways without question. A petitioner can attempt to file, you know, claims at a higher level.
Stephen G. Breyer: You've practiced here a lot. I mean, if the... if the superior court decision in a State habeas matter is a final decision and there's no more review of it in the State, I guess then we have jurisdiction to review that. But I have never seen someone come here directly from the decision of the superior court of California in a State habeas matter. Maybe they just haven't thought of it.
David W. Ogden: Well, no, Your Honor, they're not permitted to, and I think that's a very important--
Antonin Scalia: We wouldn't issue habeas when... when you have failed to exhaust all of your State remedies whether it's by appeal or not by appeal. If you still have State remedies available, we wouldn't issue Federal habeas. It... it would be useless to come here.
David W. Ogden: --This... this Court's decision in the O'Sullivan case has been applied by the Ninth Circuit in... in the case called James against Giles, which states that it is a requirement, in order to fully exhaust one's State remedies, that one file and submit one's claims to the California Supreme Court.
Antonin Scalia: Of course, and that applies whether it's an appeal or whether it's an independent action. I mean, it... it sheds no light upon... upon the central issue here.
David W. Ogden: Well, I--
Antonin Scalia: Whichever one it is, you have to exhaust those remedies before you apply for Federal habeas.
David W. Ogden: --I think it sheds substantial light on it, Your Honor, because as was made clear in Duncan against Walker by this Court, the very purpose of this tolling provision is to facilitate and to, indeed, promote the full and complete exhaustion of State remedies.
Sandra Day O'Connor: Okay. Well, let me ask you this. Suppose that a... a prisoner has filed in California for State post-conviction review in the superior court and then in the court of appeals and then makes no filing in the State supreme court, could but years go by. Then there's a petition filed for habeas in the Federal court. Now, the Federal court under your view presumably would have to say, no, it's still pending in the State court.
David W. Ogden: I believe the appropriate course for the Federal court in that situation--
Sandra Day O'Connor: What would you do?
David W. Ogden: --would be to apply this Court's decision in O'Sullivan against Boerckel and deem the petition to be unexhausted. At that point, the petitioner could apply to the California Supreme Court.
Sandra Day O'Connor: And say it is unexhausted and... and the... a Federal statute of limitations hasn't run.
David W. Ogden: Because simply it's unknowable. You asked the question earlier whether... who decides whether it's a reasonable time or not, and I think it's very clear the design of the statute of... of 2244(d)(2) is that the State of California decides. Whether something continues to be pending in exhaustion law is a question of whether it is possible whether there is a... an available procedure under State law to raise the claim to a higher level.
Anthony M. Kennedy: Okay. Let's... let's continue that hypothetical that Justice O'Connor gives. There's a long wait, years of wait. They go to the... the prisoner goes to the California Supreme Court. The California Supreme Court said, you are late. You have lacked diligence. We will not rule on the merits. Dismissed. When does the Federal statute... how does the Federal statute apply there?
David W. Ogden: That implicates a... a circuit split that's not presented in this case, Your Honor. There is a difference of opinion among the circuits about how to apply the... the endpoint of... of the tolling process. In the majority of circuits, tolling terminates at the point it is no longer possible to file a--
Anthony M. Kennedy: What is the position that you urge upon us here in that instance?
David W. Ogden: --Your Honor, I don't believe it's... it is important for my client what the answer to that question is because the second point I want to make this morning is that the submission to the California Supreme Court was not late under California law.
Anthony M. Kennedy: I'm trying to... I'm trying to interpret the statute, and so I imagined this case and I want to know how it would come out--
David W. Ogden: I think the most--
Anthony M. Kennedy: --under your view.
David W. Ogden: --I'm sorry. I think the most natural interpretation of the statute is the majority of the court's view which is that it continues to be pending until it is too late to file a submission, and then the opportunity to file... if you file for leave to file out of time, that would then resume the tolling if that motion were granted. In California, that--
Antonin Scalia: Retroactively. I mean, there's a split. There are real problems and... and those problems, as well as the problems with the California system, seem to me good reason to read the statute the way it's written so that there has to be an application pending, not... not a case pending, but an application. On appeal, it could be the application of either the petitioner or the government if it lost, but the only time counted is the... is the time during the pending application. Then you would not have to worry about these problems. What happens if they accept a... you know, a late petition? Does it automatically toll retroactively for the... for the period after the due date and so forth?
David W. Ogden: --Your Honor--
Antonin Scalia: None of those problems exist if you... if you say it's pending when it's pending.
David W. Ogden: --I think those problems are more complicated in a system like California's or North Carolina's which is an appellate system that involves an unreasonable delay standard than they are in a... in a system that has clear time lines. And California and North Carolina, if they don't like the way it's playing out under their provisions, can simply create time lines--
Ruth Bader Ginsburg: Mr. Ogden--
Anthony M. Kennedy: --Just so... just so I understand your answer. In the case that I put that I didn't quite get the whole... the California court says, you've waited 4 years. That's too late. How do I apply the statute of limitations to that context or the pending rule that we're discussing?
David W. Ogden: --I... I believe there are about three different ways that you can--
Anthony M. Kennedy: And what is... what is your submission as to how we ought to interpret the rule in that instance?
David W. Ogden: --My submission would be that until the California Supreme Court indicates how long the time period is that... that he would have had to file, the best thing to do is to look to evidence of other cases that have been decided by California to determine what is an acceptable gap in the process. And that's why in this case the evidence is absolutely overwhelming that the 4-and-a-half-month period that the State relies on simply wasn't the basis for the California Supreme Court's decision.
Ruth Bader Ginsburg: How is that? It seems to me the record is a blank on that, and with all this talk, if you don't count those 4-and-a-half months, he's timely no... no matter whether it's discrete applications. So, what do we do? He says, I never got that notice. And it's not established in the record whether he did or he didn't.
David W. Ogden: Well, the only evidence in the record is that he did not. He submitted a sworn statement to that effect in the California Supreme Court in his petition. But as the Ninth Circuit said, there are two possible bases for the lack of diligence finding in the record. One is 5 years before he filed his initial claim. The other is this 4-and-a-half-month period in which he says and swears that he did not receive notice. The... when you look at the record of the minute orders that have been entered by California on the very day and in the very weeks... the California Supreme Court... around when Mr. Saffold's case was dismissed, you see that cases... for example, the Davis case. There was an 18-month gap between the decision in the court of appeal and the petition in the California Supreme Court, and the California Supreme Court simply denied it, which under the Ylst standard, looking through, goes back to the merits determination before. No lack of diligence, no untimeliness. In the Sampson case, over 9 months had elapsed between the court of appeal decision and the supreme court decision. Again, absolutely no indication of a lack of diligence or untimeliness. In the Viegas case, over 7 months elapsed between the court of appeal and the decision... and the petition. No explanation from Mr. Viegas, as there wasn't from Davis and nothing meaningful from Sampson for the delay again. And the Saenz case is another. So, there are those four--
William H. Rehnquist: Is... is there any... some possibility that those perhaps inconsistent rulings coming from the Supreme Court of California might be based on what Mr. Cross referred to as the division of opinion within that court as to whether they should give any sort of an explanation?
David W. Ogden: --Your Honor, I think anything is possible because, as... as somebody said, we're in a mind-reading mode here, and so certainly that's possible. And I can't stand here and tell you it is impossible that they simply acted in an... in an irrational and inconsistent fashion. The fact is while Mr. Saffold submitted a... an explanation which, at least on the surface, has some appeal to it, none of these others did, and yet much longer periods of time--
Antonin Scalia: That's not the basis on which the Ninth Circuit decided the case. It did not resolve whether, you know, the 4-and-a-half or the other one. It... it did not do it. It just simply said, since the Supreme Court of California alternatively addressed the merits, that's the end of it. And so you're... you're not defending their basis for... for deciding the case?
David W. Ogden: --I think it's somewhat unclear what the Ninth Circuit's basis was, Your Honor. I concede that. To the extent that the Ninth Circuit held that a... a ruling on the merits would trump a clear finding by the... by the California Supreme Court that the petition to it was untimely, I think that would be an... an incorrect interpretation of the statute. That's my view.
John Paul Stevens: What would you say to the possibility that we might certify the question to the California Supreme Court whether this case was dismissed because it was untimely?
David W. Ogden: The critical question would be whether the case was dismissed based on the gap between the court of appeal and the supreme court as opposed to the... the portion that preceded the original filing in the... in the trial court which obviously could not make the case stop pending once it began to pend. But I believe that certification would not fit the profile in California for certified questions. They... they certify questions of law, and this is... this is an--
Sandra Day O'Connor: Have... have any courts considering this AEDPA statute applied it in the way Justice Scalia suggests that we look at pending and place all the emphasis there and exclude all time after a decision by a State court until the next filing?
David W. Ogden: --11 courts of appeals have considered that issue to this point, Your Honor, and all 11 have adopted the view that the entire period of time should be tolled.
William H. Rehnquist: Were any of them dealing with a system like California's?
David W. Ogden: The Ninth Circuit in this case and in the Nino case previously, but no other... no other... none of the other cases really deal with that--
Stephen G. Breyer: Can we use Justice Scalia... he just suggested an idea that... that... if this is right factually as to how it works. Suppose you go into the district court... the superior court, trial court. All right. Now I get a decision there. Now, I take it, under California law, I cannot file a complaint about how the judge decided it, i.e., an appeal, quotes, in any other superior court, but I can do it in a higher court. Am I right? Because they'll treat it as successive if I go to the parallel level, but if I go to the next level, they won't treat it as successive.
David W. Ogden: --That's my understanding.
Stephen G. Breyer: But then if in fact I wait too long, I'm beyond a reasonable time.
David W. Ogden: That's correct.
Stephen G. Breyer: And so, to put in terms of exhausted, unexhausted as if he did... as he did, you'd say the only unexhausted remedy you have left to you, once you're in the superior court, is to go up, as long as you do it within a reasonable time. But once you exceed the reasonable time, you're out.
David W. Ogden: That's correct.
Stephen G. Breyer: All right. So, what we would have to say is that that system, looking to the exhausted instead of the technical word appeal, we'd get to approximately the same place, and then our issue would be, well, was this beyond a reasonable time or not. And then I'd have to say maybe we don't know. We'd have to find out in some way or other. That... that--
David W. Ogden: Well, I think the general description is fine and I think it's true that we don't know whether it was considered unreasonable by the California Supreme Court.
Stephen G. Breyer: --I mean, I can't see how we can accept the Ninth Circuit's reasoning frankly because they said the very fact that they say both, the very fact that they say we'll consider it on the merits but it's untimely, that that means that it wasn't untimely. Of course, they didn't use the word untimely. They used a different word which is harder to understand.
David W. Ogden: Your Honor, I think that we... it's... while we don't know, I think that a fair reading of this record would lead one to the conclusion that it was not the 4-and-a-half months. When we have four other cases, two of them decided the same day, one of them decided--
Stephen G. Breyer: But it's way beyond what any other State would have, isn't it? 4-and-a-half months? Unless there's some excuse here that he didn't get the record or he didn't know about it.
David W. Ogden: --Well, North Carolina has an undue delay standard. Massachusetts, until just very recently, as the First Circuit explained in the Curry case just last week, previously had no time limit, has now imposed a 30-day time limit presumably to deal with some of these problems. The times in other States vary. 4-and-a-half months is... is somewhat longer than the certiorari time in this Court, but it's not by an entire order of magnitude. And the point is that the California Supreme Court routinely seems to reach the merits despite this period. And in this case we have a 5-year delay staring us in the face in which the only justification offered by Mr. Saffold was that he needed to hire a private investigator to... essentially to interview the jurors. The magistrate judge in this case, applying the due diligence standard of Federal law, which is in 2244--
William H. Rehnquist: This was a Federal magistrate?
David W. Ogden: --The Federal magistrate, yes, Your Honor, in... in this case applying the Federal due diligence standard. Mr. Saffold suggested that the time should be tolled for... for the running of the entire period because he had not discovered these claims. And the Federal magistrate, looking at it, said, well, you should have discovered these claims long before. you didn't exercise due diligence. I think looking at the face... at the... at the joint appendix at 38, looking at the face of the application Mr. Saffold submitted to the California Supreme Court where he attempts to justify the 5 years on that basis and notes, with respect to the 4-and-a-half months, that he only received notice the very day he filed, the only reasonable interpretation is that they relied on the 5 years, a period of time irrelevant to the question of whether review in the supreme court was unavailable. And therefore, it is... it is... it would be unreasonable for this Court to suppose that... that the period was the 4-and-a-half months. This is somewhat similar to the approach to questions of... of... related to procedural bars that this Court adopted and modified in the Coleman against Thompson case where... where an underlying State decision leaves reason to question whether the Federal bar is applicable, this Court has gone ahead and decided the... the merits of the Federal claim because it's entirely within the power of the State, the State of California or in the Coleman v. Thompson circumstance, to be clear about the fact that what was the period and when did it expire, or alternatively, simply like most States, to have a clear, definable period of time in which--
Antonin Scalia: Didn't the... didn't the superior court here, or at least the magistrate did, made a specific finding to the effect that the 4-month delay was not excusable, that it was an excessive delay? Wasn't there that finding below?
David W. Ogden: --The magistrate did not find that he received notice earlier than he says. What the magistrate said was that he should have been more diligent in calling the court and contacting them and so forth.
Antonin Scalia: But it was a finding that the 4-month period was the... was a period of inexcusable delay.
David W. Ogden: He indicated... suggested that he would not--
Antonin Scalia: So, to say that that couldn't have been what the supreme court was thinking of strikes me as implausible.
David W. Ogden: --Your Honor, I'm not saying that it couldn't be. I'm saying it's far less likely that it was.
Ruth Bader Ginsburg: But that wasn't reviewed by the Ninth Circuit.
David W. Ogden: No. Indeed, the Ninth Circuit left open the question of equitable tolling which depends on that... on that fact. And furthermore, again, it doesn't go to whether he received notice. It's simply the opinion of the magistrate that he should have called the court or sent a letter to the court or done something within that 4-and-a-half-month period.
Anthony M. Kennedy: I do... I do want, if I can, very quickly to get to the question that Mr. Cross said was very difficult and you raise it at pages 24 and 25 of your brief. You say what... what happens if the... under the theory that the petitioner proposes, if the State files an appeal when the State has lost. And the Chief Justice said, well, that shouldn't be a problem because we can then easily say that the application is still pending. How long does the State have to appeal generally?
David W. Ogden: I believe it's 30 days in California.
Anthony M. Kennedy: So, then... so, then it seems to me that isn't a problem. A, it's just 30 days, and B, you can say that it's still pending. So, that's not a big problem. Mr. Cross, whose right of rebuttal we've demolished, so I can't ask him, has said that that's a very hard question.
David W. Ogden: Well, I think it's a very hard question for him because his... his gap theory taken to its literal extreme, taken to... to the application that it would... that... that gaps are not tolled, even in a... an appeals situation, would cause that entire period of time on the State's clock to run.
Anthony M. Kennedy: But why can't we easily say the application is pending so long as the State has an appeal--
David W. Ogden: Well, that--
Anthony M. Kennedy: --prevail?
David W. Ogden: --That would... that would undermine the so-called gap theory in every State but... but California where typically you do have appeals on both sides. In California, you have a State appeal and a functional appeal on the petitioner's side. And so, the argument could be made... I think it's a hyper-technical argument. I think it's an argument that's inconsistent with the purpose of this statute, but you could make the hyper-technical argument that because California gives unequal rights to the two sides, an appeal on the one hand and a functional appeal on the other, we're going to treat the functional appeal in a different way for Federal purposes. I would submit there is no way that Congress intended to take a functional appeal that has the purpose of... of presenting claims that are required for exhaustion and said, we want to treat that differently because it's merely a functional appeal, not a real appeal. That makes no sense. All of the reasons why tolling should apply in the gaps prescribed by the State, the period the State believes is appropriate for the presentation of these claims, the period the State believes prisoners should have in order to prepare and present their claims, that we're not going to toll that, the consequence of that will be that petitioners will not wait for the transcript. They will file their... their motions in the... in the court of appeal without transcripts. They will not develop their arguments well, and then those arguments will finally be made for the first time effectively in the Federal court. That is not what was intended by the statute.
William H. Rehnquist: Thank you, Mr. Ogden. Mr. Cross, you have 1 minute remaining.
Stanley A. Cross: I think the answer to Mr. Ogden, Your Honor, is that the reason would be that Congress was concerned about undue delay. In the last 10 years before AEDPA was passed, over 80 bills were attempted to... to deal with this problem. And lack of diligence by petitioners was the main concern of Congress, and they dealt with that by writing into the statute the following phrase. 2244(d)(2) at page 3 of the blue brief. Quote, the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any limitation under this subsection. They did not choose to use the... the language petition in 2263(b)(2), nor did they choose to use the language in 2244(d)(1)(A) of the time for seeking such review. They chose application for the reason that Justice Scalia was talking about. They were concerned that there would be undue delay in between applications.
William H. Rehnquist: Thank you, Mr. Cross. The case is submitted.