|RHINES V. WEBER (03-9046) 544 U.S. 269 (2005)
346 F.3d 799, vacated and remanded.
[ OConnor ]
[ Stevens ]
[ Souter ]
CHARLES RUSSELL RHINES, PETITIONER
DOUGLAS WEBER, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES
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 Courts 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.