Justice Ginsburg, with whom Justice Breyer joins, dissenting.

The three options the Magistrate Judge gave respondent, see ante, at 2, did not include the three-step stay and abeyance procedure described ante, at 4-5. Under that procedure: (1) unexhausted claims are dismissed from the federal petition; (2) exhausted claims are retained in federal court, but are stayed pending exhaustion in state court of the dismissed unexhausted claims; and (3) post-exhaustion in state court, the original federal petition is amended to reinstate the now exhausted claims, which are then deemed to relate back to the initial filing.1 The Court today does not "addres[s] the propriety of this stay-and-abeyance procedure." Ante, at 5. But that unaddressed issue seems to me pivotal. If the stay and abeyance procedure was a choice respondent could have made, then the Magistrate Judge erred in failing to inform respondent of that option. While I do not suggest that clear statement of the options available to respondent must be augmented by "advisements," ante, at 8, I would not defer, as the Court does, the question at the core of this case.2

Furthermore, as this Court recognizes, ante, at 1, respondent filed his habeas petitions "five days before [the termination of AEDPA's] 1-year statute of limitations." Thus, any new petition by respondent would have been time barred even before the Magistrate Judge dismissed respondent's original petitions. Given that undisputed fact, the Magistrate Judge's characterization of the dismissal orders as "without prejudice" seems to me highly misleading.

Because the Court disposes of this case without confronting the above-described ripe issues, I dissent. Although my reasons differ from those stated in the Ninth Circuit's opinion, I would affirm the Ninth Circuit's judgment to the extent that it vacated the District Court's dismissal of Ford's second petitions.