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544 U.S. ____ (2005)

SUPREME COURT OF THE UNITED STATES

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No. 03—9046

CHARLES RUSSELL RHINES, PETITIONER v.
DOUGLAS WEBER, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT

[March 30, 2005]

Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring in part and concurring in the judgment.

I join the Court’s opinion with one reservation, not doctrinal but practical. Instead of conditioning stay-and-abeyance on “good cause” for delay, ante, at 7, I would simply hold the order unavailable on a demonstration of “intentionally dilatory litigation tactics,” ante, at 8. The trickiness of some exhaustion determinations promises to infect issues of good cause when a court finds a failure to exhaust; pro se petitioners (as most habeas petitioners are) do not come well trained to address such matters. I fear that threshold enquiries into good cause will give the district courts too much trouble to be worth the time; far better to wait for the alarm to sound when there is some indication that a petitioner is gaming the system.