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EVANS v. CHAVIS Stevens, J., concurring in judgment
41⁄2-month delay was unreasonable and therefore that it had considered the petition untimely as a matter of state law. On the other hand, we also recognized that “lack of dili gence” might have referred to the respondent’s earlier fail ure to file his first postconviction petition more promptly, “a matter irrelevant to the question whether his application was ‘pending’ during the 41⁄2-month interval.” Id., at 226. Our opinion requested the Court of Appeals to resolve the ambiguity, noting that it might be “appropriate to certify a question to the California Supreme Court for the purpose of seeking clarification in this area of state law.” Id., at 226–227.2 On remand in Saffold, after reviewing three fairly contem poraneous California Supreme Court orders that involved delays of 7 months, 18 months, and 15 months without men tioning any “lack of diligence,” the Court of Appeals came to the quite reasonable conclusion that the State Supreme Court’s “lack of diligence” notation in the order denying Saf fold’s petition referred to an earlier 5-year delay that was irrelevant to the tolling issue rather than to the 41⁄2-month delay that had preceded his most recent filing. See Saffold v. Carey, 312 F. 3d 1031, 1035 (CA9 2002). It also noted “that we have not been asked to provide any bright-line rule for determining what constitutes ‘unreasonable’ delay under California’s indeterminate timeliness standard. While such a bright-line rule would certainly be welcomed, . . . such an issue is more appropriately decided by the California Su preme Court or the California State Legislature.” Id., at 1036, n. 1. As both Judge O’Scannlain—who wrote for the Court of Appeals—and I understood the rule of law that animated our remand, it was predicated on the assumption that the answer to the timeliness question depended on what the California Supreme Court had actually decided rather than on any con 2
This approach would apparently prove fruitless. See Tr. of Oral Arg. 31.
