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EVANS v. CHAVIS Stevens, J., concurring in judgment
tions filed by respondent in that court were untimely. In one order, the State Supreme Court made its finding of un timeliness explicit; in the other, the 6-month presumption should control. First, as the Court notes ante, at 195, the California Su preme Court entered an order denying respondent habeas relief on April 29, 1998, and respondent did not file his fed eral petition for habeas corpus until August 30, 2000—more than a year later. The Court of Appeals found that the fed eral statute of limitations was tolled during this 16-month period by a second set of state habeas petitions that respond ent initiated in the California trial court on January 25, 1999, and that concluded with the entry of an order by the Califor nia Supreme Court on April 28, 2000. See App. A to Pet. for Cert. 11–12. That finding was erroneous. The California Supreme Court’s April 28, 2000, order, un like its 1998 order, was not silent. Instead, the April 2000 order cited three earlier California Supreme Court cases, two of which stand for the proposition that a petition has been untimely filed. See id., at 5; Robbins, 18 Cal. 4th, at 814, n. 34, 959 P. 2d, at 340, n. 34. Although the State did not argue that respondent’s second habeas filing in the Cali fornia Supreme Court was untimely, see App. A to Pet. for Cert. 8, n. 3, there is not even an arguable basis for disputing that the California Supreme Court found respondent’s sec ond habeas petition to have been untimely filed. Given this finding by the State Supreme Court, the Ninth Circuit clearly erred (although not for the reasons claimed by the Court). Second, respondent’s November 5, 1997, state habeas pe tition was filed with the California Supreme Court more than three years after the California Court of Appeal denied review. Ante, at 195. The State Supreme Court denied that petition without explanation. Ibid. The presumption I described above—that an unexplained order following a delay longer than six months was based on the state court’s
