00-121 Duncan v. Walker

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“Section 2244(d)(2) … employs the word ‘State,’ but not the word ‘Federal,’ as a modifier for ‘review.’ It is well settled that ‘ ‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ‘ Bates v. United States, 522 U. S. 23, 29-30 (1997) (quoting Russello v. United States, 464 U. S. 16, 23 (1983)). We find no likely explanation for Congress’ omission of the word ‘Federal’ in §2244(d)(2) other than that Congress did not intend properly filed applications for federal review to toll the limitation period. It would be anomalous, to say the least, for Congress to usher in federal review under the generic rubric of ‘other collateral review’ in a statutory provision that refers expressly to ‘State’ review, while denominating expressly both ‘State’ and ‘Federal’ proceedings in other parts of the same statute. The anomaly is underscored by the fact that the words ‘State’ and ‘Federal’ are likely to be of no small import when Congress drafts a statute that governs federal collateral review of state court judgments.”

Reversed and remanded.

Local Effect:

The issue has not previously been considered by the Seventh Circuit.

O’Connor, J.; Souter, J., concurring; Stevens, J; concurring in part and concurring in the judgment; Breyer, J., dissenting.

Certiorari to the United States Court of Appeals for the Second Circuit, 208 F.3d 357.