Justice Souter, delivered the opinion of the Court.
The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U. S. C. § 2254(d) (1994 ed., Supp. II). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs
Wisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later, and before Lindh's trial, come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness's interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted.
On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9, 1992, he filed a habeas corpus application in the United States District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh's case be reheard en banc to see whether the new statute applied to Lindh and, if so, how his case should be treated.
The Court of Appeals held that the Act's amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. 96 F.3d 856, 863 (1996). Since the court did not read the statute as itself answering the questions whether or how the newly amended version of § 2254(d) would apply to pending applications like Lindh's, id., at 861-863, it turned to this Court's recent decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Landgraf held that, where a statute did not clearly mandate an application with retroactive effect, a court had to determine
The Seventh Circuit's decision that the new version of § 2254(d) applies to pending, chapter 153 cases conflicts with the holdings of Edens v. Hannigan, 87 F.3d 1109, 1112, n. 1 (CA10 1996), Boria v. Keane, 90 F.3d 36, 37-38 (CA2 1996) (per curiam), and Jeffries v. Wood, 114 F.3d 1484 (CA9 1997). In accord with the Seventh Circuit is the § 2253(c) case of Hunter v. United States, 101 F.3d 1565, 1568-1573 (CA11 1996) (en banc) (relying on Lindh to hold certain amendments to chapter 153 applicable to pending cases). We granted certiorari limited to the question whether the new § 2254(d) applies to Lindh's case, 519 U.S. 1074 (1996), and we now reverse.
Before getting to the statute itself, we have to address Wisconsin's argument that whenever a new statute on its face could apply to the litigation of events that occurred before it was enacted, there are only two alternative sources of rules to determine its ultimate temporal reach: either an "express command" from Congress or application of our Landgraf default rule. In Landgraf, we said:
Wisconsin insists that this language means that, in the absence of an express command regarding temporal reach, this Court must determine that temporal reach for itself by applying its judicial default rule governing retroactivity, to the exclusion of all other standards of statutory interpretation. Brief for Respondent 9-14; see also Hunter v. United States, supra, at 1569 (suggesting that Landgraf may have announced a general clear-statement rule regarding the temporal reach of statutes).
Wisconsin's reading, however, ignores context. The language quoted disposed of the question whether the practice of applying the law as it stands at the time of decision represented a retreat from the occasionally conflicting position that retroactivity in the application of new statutes is disfavored. The answer given was no, and the presumption against retroactivity was reaffirmed in the traditional rule requiring retroactive application to be supported by a clear statement. Landgraf thus referred to "express command[s]," "unambiguous directive[s]," and the like where it sought to reaffirm that clear-statement rule, but only there. See Landgraf v. USI Film Products, 511 U. S., at 263 ("[U]nambiguous directive" is necessary to authorize "retroactive application"); id., at 264 (statutes "will not be construed to have retroactive effect unless their language requires this result" (internal quotation marks and citation omitted)); id., at 272-273 ("Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application"); id., at 286 (finding "no clear evidence of congressional intent" to rebut the "presumption
In determining whether a statute's terms would produce a retroactive effect, however, and in determining a statute's temporal reach generally, our normal rules of construction apply. Although Landgraf `s default rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. In sum, if the application of a term would be retroactive as to Lindh, the term will not be applied, even if, in the absence of retroactive effect, we might find the term applicable; if it would be prospective, the particular degree of prospectivity intended in the Act will be identified in the normal course in order to determine whether the term does apply to Lindh.
The statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases). Title I of the Act stands more or less independent of the Act's other titles
We read this provision of § 107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act. The significance of this provision for application to pending cases becomes apparent when one realizes that when chapter 154 is applicable, it will have substantive as well as purely procedural effects. If chapter 154 were merely procedural in a strict sense (say, setting deadlines for filing and disposition, see 28 U. S. C. §§ 2263, 2266 (1994 ed., Supp. II); 110 Stat. 1223, 1224-1226), the natural expectation would be that it would apply to pending cases. Landgraf, supra, at 275 (noting that procedural changes "may often be applied in suits arising before their enactment without raising concerns about retroactivity"). But chapter 154 does more, for in its revisions of prior law to change standards of proof and persuasion in a way favorable to a State, the statute goes beyond "mere" procedure to affect substantive entitlement to relief. See 28 U. S. C. § 2264(b) (1994 ed., Supp. II); 110 Stat. 1223 (incorporating revised legal standard of new § 2254(d)). Landgraf did not speak to the rules for determining the temporal reach of such a statute (having no need to do so). While the statute might not have a true retroactive effect, neither was it clearly "procedural" so as to fall within the
The next point that is significant for our purposes is that everything we have just observed about chapter 154 is true of changes made to chapter 153. As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases.
Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two chapters had evolved separately in the congressional process, only to be passed together at the last minute, after chapter 154 had already acquired the mandate to apply it to pending cases. Under those circumstances, there might have been a real possibility that Congress would have intended the same rule of application for each chapter, but in the rough-andtumble no one had thought of being careful about chapter 153, whereas someone else happened to think of inserting a
The insertion of § 107(c) with its different treatments of the two chapters thus illustrates the familiar rule that negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See Field v. Mans, 516 U.S. 59, 75 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects . . ."). When § 107(c) was added, that is, a thoughtful Member of the Congress was most likely to have intended just what the later reader sees by inference.
The strength of the implication is not diminished by the one competing explanation suggested, see Brief for Respondent 11-12, which goes as follows. Chapter 154 provides for expedited filing and adjudication of habeas
This explanation of the significance of § 107(c) is not, however, very plausible. First, one has to strain to find the ambiguity on which the alternative explanation is supposed to rest. Why would a Congress intent on expediting capital habeas cases have wanted to disfavor a State that already had done its part to promote sound resolution of prisoners' petitions in just the way Congress sought to encourage? It would make no sense to leave such States on the slower track, and it seems unlikely that federal courts would so have interpreted § 2261(b). Second, anyone who had seen such ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting § 107(c); all the drafter would have needed to do was to insert three words into § 2261(b), to make it refer to a State that "establishes or has established . . . a mechanism." It simply is not plausible
Finally, we should speak to the significance of the new § 2264(b), which Lindh cites as confirming his reading of § 107(c) of the Act. While § 2264(b) does not speak to the present issue with flawless clarity, we agree with Lindh that it tends to confirm the interpretation of § 107(c) that we adopt. Section 2264(b) is a part of the new chapter 154 and provides that "[f]ollowing review subject to subsections (a), (d), and (e) of § 2254, the court shall rule on the claims [subject to expedited consideration] before it." 110 Stat. 1223. As we have said before, § 2254 is part of chapter 153 applying to habeas cases generally, including cases under chapter 154. Its subsection (a) existed before the Act, simply providing for a habeas remedy for those held in violation of federal law. Although § 2254 previously had subsections lettered (d) and (e) (dealing with a presumption of correctness to be accorded state-court factual findings and the production of state-court records when evidentiary sufficiency is challenged, respectively) the Act eliminated the old (d) and relettered the old (e) as (f); in place of the old (d), it inserted a new (d) followed by a new (e), the two of them dealing with, among other things, the adequacy of state factual determinations as bearing on a right to federal relief, and the presumption of correctness to be given such state determinations. 110 Stat. 1219. It is to these new provisions (d) and (e), then, that § 2264(b) refers when it provides that chapter 154 determinations shall be made subject to them.
Continuing on the State's assumption that § 2264(a) replaces rather than complements § 2254's exhaustion provisions, we can see that the function of providing that §§ 2254(d) and (e) be applicable in chapter 154 cases is, in fact,
This analysis is itself consistent, in turn, with Congress's failure in § 2264(b) to make any express provision for applying §§ 2254(f), (g), (h), or (i). Subsections (f) and (g) deal with producing state-court evidentiary records and their admissibility as evidence. Congress would obviously have wanted these provisions to apply in chapter 154 pending cases, but because they were old provisions, which had already attached to "pending" capital habeas cases (only their letter designations had been amended), Congress had no need to make any special provision for their application to pending capital habeas cases that might immediately or later turn out to be covered by chapter 154. Subsections (h) and (i), however, are new; if Congress wanted them to apply to chapter 154 cases from the start it would on our hypotheses have had to make the same special provision that § 2264(b)
There is only one loose end. Section 2254(a) was an old provision, without peculiar relevance to chapter 154 cases, but applicable to them without any need for a special provision; as an old provision it was just like the lettered subsections (f) and (g). Why did § 2264(b) make an express provision for applying it to chapter 154 cases? No answer leaps out at us. All we can say is that in a world of silk purses and pigs' ears, the Act is not a silk purse of the art of statutory drafting.
The upshot is that our analysis accords more coherence to §§ 107(c) and 2264(b) than any rival we have examined. That is enough. We hold that the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective. Because Lindh's case is not one of these, we reverse the
It is so ordered.
Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, dissenting.
The Court in this case conducts a truncated inquiry into a question of congressional intent, and, I believe, reaches the wrong result. The Court begins, uncontroversially enough, by observing that application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to pending cases depends upon congressional intent, and that our inquiry into that intent should rely upon the "normal rules" of statutory construction. Ante, at 326. The Court then proceeds, however, to disregard all of our retroactivity case law—which it rather oddly disparages as manifestations of "Landgraf `s default rule," ibid. —in favor of a permissible, but by no means controlling, negative inference that it draws from the statutory text. I would instead interpret the AEDPA in light of the whole of our long standing retroactivity jurisprudence, and accordingly find that the amended 28 U. S. C. § 2254(d) (1994 ed., Supp. II) applies to pending cases.
The first question we must ask is whether Congress has expressly resolved whether the provision in question applies to pending cases. Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Here, the answer is plainly no. The AEDPA does not clearly state, one way or the other, whether chapter 153 applies to pending cases. Given congressional silence, we must still interpret that statute, and that interpretation is in turn guided by the retroactivity principles we have developed over the years. The Court relies on one canon of statutory interpretation, expressio unius est exclusio alterius, to the exclusion of all others.
The Court's opinion rests almost entirely on the negative inference that can be drawn from the fact that Congress expressly made chapter 154, pertaining to capital cases, applicable
First, because chapter 154's applicability is conditioned upon antecedent events—namely, a State's establishing qualifying capital habeas representation procedures—Congress could have perceived a greater likelihood that, absent express provision otherwise, courts would fail to apply that chapter's provisions to pending capital cases. Second, because of the characteristically extended pendency of collateral attacks on capital convictions,
None of these competing inferences is clearly superior to the others. The Court rejects the first, ante, at 330-332, as an "implausible" solution to an "unlikely" ambiguity. But
The Court finds additional support for its inference in the new 28 U. S. C. § 2264(b) (1994 ed., Supp. II), which it believes "tends to confirm," ante, at 332, its analysis. Section 2264 is part of chapter 154 and forbids (subject to narrow exceptions) federal district courts to consider claims raised by state capital defendants unless those claims were first raised and decided on the merits in state court. Section 2264(b) provides, "[f]ollowing review subject to subsections (a), (d), and (e) of section 2254 [contained within chapter 153], the court shall rule on the claims properly before it." This section, I believe, is irrelevant to the question before us.
The Court's somewhat tortured interpretation of this section, as a backhanded way of making §§ 2254(a), (d), and (e) (but not the rest of chapter 153) apply to pending cases, is not convincing. For one thing, § 2264(b) is not phrased at all as a timing provision; rather than containing temporal language applying select sections to pending cases, § 2264(b) speaks in present tense, about how review should be conducted under chapter 154. Even more tellingly, as the Court implicitly concedes when it blandly describes this provision as a "loose end," ante, at 336, the AEDPA did not alter § 2254(a), and so there is no need for an express provision making it applicable to pending cases.
Chapter 154 establishes special procedures for capital prisoners. Section 2264(b), by its terms, makes clear that
Petitioner protests that to read § 2264(a) as supplanting §§ 2254(b) and (c) would produce "outlandish" results, Brief for Petitioner 26, a conclusion that the Court finds plausible, ante, at 333-334, and n. 7 (although it ultimately assumes otherwise). The result would have to be "outlandish," indeed, before a court should refuse to apply the language chosen by Congress, but no such result would obtain here. Petitioner and the Court both fail to appreciate the different litigating incentives facing capital and non capital defendants. Non capital defendants, serving criminal sentences in prison, file habeas petitions seeking to be released, presumably as soon as possible. They have no incentive to delay. In such circumstances, §§ 2254(b) and (c) quite reasonably require that their habeas claims be filed first in state courts, so that the state judicial apparatus may have the first opportunity to address those claims. In contrast, capital defendants, facing impending execution, seek to avoid being executed. Their incentive, therefore, is to utilize every means possible to delay the carrying out of their sentence. It is, therefore, not at all "outlandish" for Congress to have concluded that in such circumstances §§ 2254(b) and (c) exhaustion would needlessly prolong capital proceedings and that § 2264(a)'s requirement that a claim have been raised and decided on the merits in state court was a sufficient protection of States' interests in exhaustion.
First, we have generally applied new procedural rules to pending cases. Landgraf, 511 U. S., at 275; see also Beazell v. Ohio, 269 U.S. 167, 170-171 (1925); Ex parte Collett, 337 U.S. 55, 71 (1949); Dobbert v. Florida, 432 U.S. 282, 293-294 (1977); Collins v. Youngblood, 497 U.S. 37, 45 (1990). This is because "rules of procedure regulate secondary rather than primary conduct." Landgraf, supra, at 275. Here, the primary conduct occurred when Lindh murdered two people in the sheriff's office of the City-County Building in Madison, Wisconsin. Obviously, the AEDPA in no way purports to regulate that past conduct. Lindh's state-court proceedings constituted secondary conduct. Under our retroactivity
Second, we have usually applied changes in law to prospective forms of relief. Landgraf, supra, at 273; see also Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464 (1921); American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201 (1921); Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam); Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 852 (1990) (Scalia, J., concurring). Unlike damages actions, which are "quintessentially backward looking," Landgraf, supra, at 282, the writ of habeas corpus is prospective in nature. Habeas does not compensate for past wrongful incarceration, nor does it punish the State for imposing it. See Lane v. Williams, 455 U.S. 624, 631 (1982). Instead, habeas is a challenge to unlawful custody, and when the writ issues it prevents further illegal custody. See Preiser v. Rodriguez, 411 U.S. 475, 489, 494 (1973).
Finally, we have regularly applied statutes ousting jurisdiction to pending litigation.
There is a good argument that § 2254(d) is itself jurisdictional. See Brown v. Allen, 344 U.S. 443, 460 (1953) ("Jurisdiction over applications for federal habeas corpus is controlled by statute"); Sumner v. Mata, 449 U.S. 539, 547, n. 2 (1981) ("The present codification of the federal habeas statute is the successor to `the first congressional grant of jurisdiction to the federal courts,' and the 1966 amendments embodied in § 2254(d) [now codified, as amended by the AEDPA, at § 2254(e)] were intended by Congress as limitations on the exercise of that jurisdiction" (quoting Preiser v. Rodriguez, supra, at 485)); cf. Arkansas v. Farm Credit Servs. of Central Ark., 520 U.S. 821, 826 (1997) (explaining that the Tax Injunction Act—which has operative language similar to
Whether the approach is framed in terms of "retroactive effect," as the Landgraf majority put it, 511 U. S., at 280, or in terms of "the relevant activity that the rule regulates," as Justice Scalia's concurrence put it, see id., at 291 (opinion concurring in judgment), our longstanding practice of applying procedural, prospective, and jurisdiction-ousting statutes to pending cases must play an important part in the decision. These principles all favor application of § 2254(d) to pending cases.
It is a procedural statute, regulating prospective relief, and addressed directly to federal courts and removing their power to give such relief in specified circumstances. Our cases therefore strongly suggest that, absent congressional direction otherwise, we should apply § 2254(d) to pending cases. This is not because of any peculiar characteristic intrinsic to the writ of habeas corpus, but rather because modifications to federal courts' authority to issue the writ are necessarily of that stripe—procedural, prospective, and addressed to courts. It is therefore not surprising that the parties have not pointed us to a single case where we have found a modification in the scope of habeas corpus relief inapplicable to pending cases. To the contrary, respondent and
Because the Court's inquiry is incomplete, I believe it has reached the wrong result in this case. I would affirm the judgment of the Court of Appeals.
Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas and Jon C. Walden, Assistant Attorneys General, Christine O. Gregoire, Attorney General of Washington, and Paul D. Weisser and John J. Samson, Assistant Attorneys General, John M. Bailey, Chief States Attorney of Connecticut, and Gus F. Diaz, Acting Attorney General of Guam, joined by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, John Knox Walkup of Tennessee, Jan Graham of Utah, James B. Gilmore III of Virginia, Julio A. Brady of the Virgin Islands, and William U. Hill of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Ronald D. Maines.
Landgraf suggested that the following language from an unenacted precursor of the statute at issue in that case might possibly have qualified as a clear statement for retroactive effect: "[This Act] shall apply to all proceedings pending on or commenced after the date of enactment of this Act." 511 U. S., at 260 (emphasis added; internal quotation marks omitted). But, even if that language did qualify, its use of the sort of absolute language absent from § 107(c) distinguishes it. Cf. United States v. Williams, 514 U.S. 527, 531-532 (1995) (finding a waiver of sovereign immunity "unequivocally expressed" in language granting jurisdiction to the courts over "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected " (emphasis in Williams; internal quotation marks omitted)); id., at 541 (Scalia, J., concurring) ("The [clear-statement] rule does not . . .require explicit waivers to be given a meaning that is implausible . . .").
Nevertheless, as stated in the text, we assume for the sake of argument that the State's understanding of § 2264(a) as replacing rather than complementing the chapter 153 exhaustion requirements for chapter 154 is the correct one. Forceful arguments can be made on each side, and we do not need to resolve the conflict here.