concurring:
I concur in the opinion of the court because this case is controlled by Saffold v. Newland, 250 F.3d 1262 (9th Cir.2000). However, I am concerned that the application of the rule of Sajfold here operates substantially to frustrate the intent of Congress in imposing a one-year limitations period for state prisoners filing federal petitions for habeas corpus in AED-PA. Congress itself recognized tolling during the pendency of post-conviction or collateral review proceeding in state courts, explicitly providing: “The time during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). In accord with Saf-fold, the court today holds that the final order of the California State Supreme Court must be viewed as if it addressed the appellant’s claims on the merits, and all time that went before while state proceedings were invoked, from start to end, and despite lengthy interim delays, is tolled. I agree Sajfold requires us to so hold.
At oral argument, counsel for appellant acknowledged that there is in effect no time limit whatsoever on state court proceedings. That is where Sajfold leads us. Appellant’s counsel urged that the state courts could avoid what seemed to be abusive delays and lack of finality by modifying their system of resolution to rule explicitly that a state habeas proceeding is *1019denied for untimeliness or lack of proper state procedure. Whatever else we may have the power to decide, we cannot decide how the California Supreme Court will manage the pace or form of resolution of matters presented to it under state law. Saffold leaves us with this problem and no apparent way to resolve it.
Perhaps it would be desirable if the rule announced in Saffold were reexamined to determine if that rule should be maintained, modified, or rejected. However, such a task, even if desirable, cannot properly be undertaken by a panel of our court.