546US1
Unit: $U16
[08-22-08 15:44:46] PAGES PGT: OPIN
Cite as: 546 U. S. 189 (2006)
205
Stevens, J., concurring in judgment
clusion that the Court of Appeals itself might reach concern ing the reasonableness of the 41⁄2-month delay under Califor nia law. See id., at 1034. That assumption, also applied by the Ninth Circuit here, was consistent with the unequivocal assertion in our opinion that if the California Supreme Court had “clearly ruled” that the 41⁄2-month delay was unreason able, “that would be the end of the matter,” even if the court had also ruled on the merits. Saffold, 536 U. S., at 226. Similarly, there is no inconsistency between our conclusion in Saffold that the merits ruling “does not automatically indicate that the petition was timely filed,” ante, at 197, and the presumption applied by the Court of Appeals in this case that an order decided entirely on the merits indicates that the state court did not find the petition to be untimely, see App. A to Pet. for Cert. 9, particularly when California allows the petitioner to advance a variety of reasons to ex cuse a late filing, see, e. g., In re Robbins, 18 Cal. 4th 770, 780–782, 959 P. 2d 311, 318 (1998). Our rejection of the words “ ‘on the merits’ ” as “an absolute bellwether” was made in a case in which the order itself indicated that the state court might have considered the petition untimely. Saffold, 536 U. S., at 226. Given that ambiguous order, Saf fold did not foreclose the Court of Appeals’ presumption that, by dismissing a petition solely on the merits, the state court necessarily found the filing to be timely. The Court of Appeals’ opinion in this case was therefore completely con sistent with both our holding and our reasoning in Saffold. II The Court of Appeals’ opinion was also consistent with our prior habeas jurisprudence. While the present question requires us to apply the tolling provision of a federal statute, application of that provision ultimately rests on state-law procedural rules. See 28 U. S. C. § 2244(d)(2) (tolling federal statute while “properly filed” application for state postcon viction relief is pending). To the extent that a possibly
