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[08-22-08 15:44:46] PAGES PGT: OPIN
EVANS v. CHAVIS Stevens, J., concurring in judgment
The Ninth Circuit deals with this situation by applying the presumption that a ruling on the merits, simpliciter, means that the state court has concluded that the petition was timely. The Court today seemingly assumes—incorrectly— that we rejected that presumption in Saffold. Even if we did so sub silentio, however, I am convinced that the Court should now endorse the Ninth Circuit’s presumption because it is both eminently sensible as a matter of judicial adminis tration and entirely sound as a matter of law. Cf. Robbins, 18 Cal. 4th, at 814, n. 34, 959 P. 2d, at 340, n. 34 (explaining that when the State argues that a procedural bar applies, and the California Supreme Court’s order does not cite a case imposing that bar, it means the claim is not barred on the asserted ground). The interest in the efficient processing of the dockets of overworked federal judges provides powerful support for relying on a presumption rather than engaging in de novo review of the questions whether the length of a delay was excessive, whether the petitioner’s explanation for the delay would be considered acceptable by a California court, and whether a nonetheless unreasonable delay should be excused because the petition raises an unusually serious constitutional question. Cf. id., at 779–782, 959 P. 2d, at 317–318. There are, of course, cases in which the Ninth Circuit’s presumption may not be accurate. For example, a state court may find the deficiencies in a claim so clear that it is easier to deny it on the merits than to decide whether ex cuses for an apparently unreasonable delay are sufficient. But whereas California judges may continue to follow the easier route, under today’s holding federal judges apparently must answer the timeliness question no matter how difficult it may be and no matter how easy it is to resolve the merits. A simple rule, applicable to all unambiguous rulings on the merits, is surely far wiser than the novel ad hoc approach that the Court appears to endorse today.
