OCTOBER TERM, 1998
Syllabus
O'SULLIVAN
v. BOERCKEL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 97-2048. Argued March 30, 1999-Decided June 7,1999
After respondent Boerckel's state convictions were affirmed by
the Illinois Appellate Court and the Illinois Supreme Court denied
his petition for leave to appeal, he filed a federal habeas
petition raising six grounds for relief. In denying the petition,
the District Court found, among other things, that Boerckel had
procedurally defaulted his first three claims by failing to include
them in his petition to the Illinois Supreme Court. The Seventh
Circuit reversed and remanded, concluding that Boerckel had not
procedurally defaulted those claims because he was not required to
present them in a petition for discretionary review to the Illinois
Supreme Court in order to satisfy 28 U. S. C. §§ 2254(b)(1), (c),
under which federal habeas relief is available to state prisoners
only after they have exhausted their claims in state court.
Held: In order to satisfy the exhaustion requirement, a
state prisoner must present his claims to a state supreme court in
a petition for discretionary review when that review is part of the
State's ordinary appellate review procedure. As a matter of comity,
§ 2254(c)-which provides that a habeas petitioner "shall not be
deemed to have exhausted [state court] remedies ... if he has the
right under [state] law ... to raise, by any available procedure,
the question presented"-requires that state prisoners give state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the
federal courts. See,
e. g., Castille v.
Peoples,
489 U. S. 346,
351. State prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process.
Here, Illinois' established, normal appellate review procedure is a
two-tiered system: Most criminal appeals are heard first by the
intermediate appellate courts, and a party may petition for leave
to appeal a decision by the Appellate Court to the Illinois Supreme
Court. Whether to grant such a petition is left to the sound
discretion of the Illinois Supreme Court, Ill. Sup. Ct. Rule
315(a). Although a state prisoner has no right to
review in
the Illinois Supreme Court, he does have a "right ... to raise" his
claims before that court. That is all § 2254(c) requires.
Boerckel's argument that Rule 315(a) discourages the filing of
discretionary petitions raising routine allegations of error, and
instead directs litigants to present to the
839
Supreme Court only those claims that present questions of broad
significance, is rejected. Boerckel's related argument, that a rule
requiring state prisoners to file petitions for review with that
court offends comity by inundating the Illinois Supreme Court with
countless unwanted petitions presenting routine allegations of
error, is also rejected. There is nothing in the exhaustion
doctrine requiring federal courts to ignore a state law or rule
providing that a procedure is unavailable, but the creation of a
discretionary review system does not, without more, make review in
the Illinois Supreme Court unavailable. As the time for filing a
petition for leave to appeal to the Illinois Supreme Court has long
past, Boerckel's failure to present three of his federal habeas
claims to that court in a timely fashion has resulted in a
procedural default of those claims. Pp. 842-849.
135 F.3d
1194, reversed.
O'CONNOR, J., delivered the OpInIOn of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ.,
joined. SOUTER, J., filed a concurring opinion,
post, p.
849. STEVENS, J., filed a dissenting opinion, in which GINSBURG and
BREYER, JJ., joined,
post, p. 850. BREYER, J., filed a
dissenting opinion, in which STEVENS and GINSBURG, JJ., joined,
post, p. 862.
William L. Browers, Assistant Attorney General of
Illinois, argued the cause for petitioner. With him on the briefs
were
James E. Ryan, Attorney General, and
Michael M.
Glick, Assistant Attorney General.
David B. Mote argued the cause for respondent. With him
on the brief were
Richard H. Parsons and
Jeffrey T.
Green. *
JUSTICE O'CONNOR delivered the opinion of the Court. Federal
habeas relief is available to state prisoners only after they have
exhausted their claims in state court. 28 U. s. C. §§ 2254(b)(1),
(c) (1994 ed. and Supp. III). In this case, we are asked to decide
whether a state prisoner must present his claims to a state supreme
court in a petition for
*
Edward M. Chikofsky and
Barbara E. Bergman filed
a brief for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance.
840
discretionary review in order to satisfy the exhaustion
requirement. We conclude that he must.
I
In 1977, respondent Darren Boerckel was tried in the Circuit
Court of Montgomery County, Illinois, for the rape, burglary, and
aggravated battery of an 87-year-old woman. The central evidence
against him at trial was his written confession to the crimes, a
confession admitted over Boerckel's objection. The jury convicted
Boerckel on all three charges, and he was sentenced to serve 20 to
60 years' imprisonment on the rape charge, and shorter terms on the
other two charges, with all sentences to be served
concurrently.
Boerckel appealed his convictions to the Appellate Court of
Illinois, raising several issues. He argued, among other things,
that his confession should have been suppressed because the
confession was the fruit of an illegal arrest, because the
confession was coerced, and because he had not knowingly and
intelligently waived his rights under
Miranda v.
Arizona, 384
U. S. 436 (1966). Boerckel also claimed that prosecutorial
misconduct denied him a fair trial, that he had been denied
discovery of exculpatory material held by the police, and that the
evidence was insufficient to support his conviction. The Illinois
Appellate Court, with one justice dissenting, rejected Boerckel's
claims and affirmed his convictions and sentences.
People v.
Boerckel, 68 Ill. App. 3d 103, 385 N. E. 2d 815 (1979).
Boerckel next filed a petition for leave to appeal to the
Illinois Supreme Court. In this petition, he raised only three
issues. Boerckel claimed first that his confession was the fruit of
an unlawful arrest because, contrary to the Appellate Court's
ruling, he
was under arrest when he gave his confession.
Boerckel also contended that he was denied a fair trial by
prosecutorial misconduct and that he had been erroneously denied
discovery of exculpatory material
841
in the possession of the police. The Illinois Supreme Court
denied the petition for leave to appeal, and this Court denied
Boerckel's subsequent petition for a writ of certiorari.
Boerckel v.
Illinois, 447 U. S. 911 (1980).
In 1994, Boerckel filed a
pro se petition for a writ of
habeas corpus under 28 U. S. C. § 2254 in the United States
District Court for the Central District of Illinois. The District
Court appointed counsel for Boerckel, and Boerckel's counsel filed
an amended petition in March 1995. The amended petition asked for
relief on six grounds: (1) that Boerckel had not knowingly and
intelligently waived his
Miranda rights; (2) that his
confession was not voluntary; (3) that the evidence against him was
insufficient to sustain the conviction; (4) that his confession was
the fruit of an illegal arrest; (5) that he received ineffective
assistance of counsel at trial and on appeal; and (6) that his
right to discovery of exculpatory material under
Brady v.
Maryland, 373
U. S. 83 (1963), was violated.
In an order dated November 15, 1995, the District Court found,
as relevant here, that Boerckel had procedurally defaulted his
first, second, and third claims by failing to include them in his
petition for leave to appeal to the Illinois Supreme Court. No.
94-3258 (CD Ill.), pp. 4-10. Boerckel attempted to overcome the
procedural defaults by presenting evidence that he fell within the
"fundamental miscarriage of justice" exception to the procedural
default rule. See
Coleman v.
Thompson, 501 U. S. 722, 750
(1991). At a hearing on this issue, Boerckel argued that he was
actually innocent of the offenses for which he had been convicted
and he presented evidence that he claimed showed that two other men
were responsible for the crimes. In a subsequent ruling, the
District Court concluded that Boerckel had failed to satisfy the
standards established in
Schlup v.
Delo, 513 U. S. 298 (1995), for
establishing the "fundamental miscarriage of justice" exception,
and thus held that Boerckel could not overcome the procedural bars
preventing review
842
of his claims. No. 94-3258 (CD Ill., Oct. 28,1996), pp. 14-15.
After rejecting Boerckel's remaining claims for relief, the
District Court denied his habeas petition.
Id., at 18.
On appeal, the Court of Appeals for the Seventh Circuit
considered one question, namely, whether Boerckel had procedurally
defaulted the first three claims in his habeas petition (whether he
knowingly and intelligently waived his
Miranda rights,
whether his confession was voluntary, and whether the evidence was
sufficient to support a verdict) by failing to raise those claims
in his petition for leave to appeal to the Illinois Supreme Court.
The Court of Appeals reversed the judgment of the District Court
denying Boerckel's habeas petition and remanded for further
proceedings.
135 F.3d
1194 (1998). The court concluded that Boerckel was not required
to present his claims in a petition for discretionary review to the
Illinois Supreme Court to satisfy the exhaustion requirement.
Id., at 1199-1202. Thus, according to the Court of Appeals,
Boerckel had not procedurally defaulted those claims.
Id.,
at 1202.
We granted certiorari to resolve a conflict in the Courts of
Appeals on this issue. 525 U. S. 999 (1998). Compare
e. g.,
Richardson v.
Procunier, 762 F.2d
429 (CA5 1985) (must file petition for discretionary
review), with
Dolny v.
Erickson, 32 F.3d
381 (CA8 1994) (petition for discretionary review not
required), cert. denied, 513 U. S. 1111 (1995).
II
Before a federal court may grant habeas relief to a state
prisoner, the prisoner must exhaust his remedies in state court. In
other words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to
a federal court in a habeas petition. The exhaustion doctrine,
first announced in
Ex parte Royall, 117 U. S. 241 (1886), is
now codified at 28 U. S. C. § 2254(b)(1) (1994 ed., Supp. III).
This doctrine, however, raises a recurring question: What state
remedies must a habeas peti-
843
tioner invoke to satisfy the federal exhaustion requirement? See
Castille v.
Peoples, 489 U. S. 346, 349-350
(1989);
Wainwright v.
Sykes, 433 U. S. 72, 78 (1977).
The particular question posed by this case is whether a prisoner
must seek review in a state court of last resort when that court
has discretionary control over its docket.
Illinois law provides for a two-tiered appellate review process.
Criminal defendants are tried in the local circuit courts, and
although some criminal appeals (e. g., those in which the death
penalty is imposed) are heard directly by the Supreme Court of
Illinois, most criminal appeals are heard first by an intermediate
appellate court, the Appellate Court of Illinois. Ill. Sup. Ct.
Rule 603 (1998). A party may petition for leave to appeal a
decision by the Appellate Court to the Illinois Supreme Court (with
exceptions that are irrelevant here), but whether "such a petition
will be granted is a matter of sound judicial discretion." Rule
315(a). See also Rule 612(b) (providing that Rule 315 governs
criminal, as well as civil, appeals). Rule 315 elaborates on the
exercise of this discretion as follows:
"The following, while neither controlling nor fully measuring
the court's discretion, indicate the character of reasons which
will be considered: the general importance of the question
presented; the existence of a conflict between the decision sought
to be reviewed and a decision of the Supreme Court, or of another
division of the Appellate Court; the need for the exercise of the
Supreme Court's supervisory authority; and the final or
interlocutory character of the judgment sought to be reviewed."
Rule 315(a).
Boerckel's amended federal habeas petition raised three claims
that he had not included in his petition for leave to appeal to the
Illinois Supreme Court. To determine whether Boerckel was required
to present those claims to the Illinois Supreme Court in order to
exhaust his state
844
remedies, we turn first to the language of the federal habeas
statute. Section 2254(c) provides that a habeas petitioner "shall
not be deemed to have exhausted the remedies available in the
courts of the State ... if he has the right under the law of the
State to raise, by any available procedure, the question
presented." Although this language could be read to effectively
foreclose habeas review by requiring a state prisoner to invoke
any possible avenue of state court review, we have never
interpreted the exhaustion requirement in such a restrictive
fashion. See
Wilwording v.
Swenson, 404 U. S. 249,
249-250 (1971)
(per curiam). Thus, we have not interpreted
the exhaustion doctrine to require prisoners to file repetitive
petitions. See
Brown v.
Allen, 344 U. S. 443, 447 (1953)
(holding that a prisoner does not have "to ask the state for
collateral relief, based on the same evidence and issues already
decided by direct review"). We have also held that state prisoners
do not have to invoke extraordinary remedies when those remedies
are alternatives to the standard review process and where the state
courts have not provided relief through those remedies in the past.
See
Wilwording v.
Swenson, supra, at 249-250
(rejecting suggestion that state prisoner should have invoked "any
of a number of possible alternatives to state habeas including 'a
suit for injunction, a writ of prohibition, or mandamus or a
declaratory judgment in the state courts,' or perhaps other relief
under the State Administrative Procedure Act").
Section 2254(c) requires only that state prisoners give state
courts a
fair opportunity to act on their claims. See
Castille v.
Peoples, supra, at 351;
Picard v.
Connor, 404 U.
S. 270, 275-276 (1971). State courts, like federal courts, are
obliged to enforce federal law. Comity thus dictates that when a
prisoner alleges that his continued confinement for a state court
conviction violates federal law, the state courts should have the
first opportunity to review this claim and provide any necessary
relief.
Rose v.
Lundy, 455 U. S. 509, 515-516
(1982);
Darr v.
Burford, 339 U. S. 200, 204
(1950).
845
This rule of comity reduces friction between the state and
federal court systems by avoiding the "unseem[linessJ" of a federal
district court's overturning a state court conviction without the
state courts having had an opportunity to correct the
constitutional violation in the first instance.
Ibid. See
also
Duckworth v.
Serrano, 454 U. S. 1, 3-4 (1981)
(per curiam); Rose v.
Lundy, supra, at 515-516.
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the
federal courts, we conclude that state prisoners must give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process. Here, Illinois' established, normal
appellate review procedure is a twotiered system. Comity, in these
circumstances, dictates that Boerckel use the State's established
appellate review procedures before he presents his claims to a
federal court. Unlike the extraordinary procedures that we found
unnecessary in
Brown v.
Allen and
Wilwording
v.
Swenson, a petition for discretionary review in Illinois'
Supreme Court is a normal, simple, and established part of the
State's appellate review process. In the words of the statute,
state prisoners have "the right ... to raise" their claims through
a petition for discretionary review in the State's highest court. §
2254(c). Granted, as Boerckel contends, Brief for Respondent 16, he
has no right to
review in the Illinois Supreme Court, but he
does have a "right ... to raise" his claims before that court. That
is all § 2254(c) requires.
Boerckel contests this conclusion with two related arguments.
His first argument is grounded in a stylized portrait of the
Illinois appellate review process. According to Boerckel, Illinois'
appellate review procedures make the intermediate appellate courts
the primary focus of the system; all routine claims of error are
directed to those courts. The Illinois Supreme Court, by contrast,
serves only to an-
846
swer "questions of broad significance."
Id., at 4.
Boerckel's view of Illinois' appellate review process derives from
Ill. Sup. Ct. Rule 315(a) (1998). He reads this Rule to discourage
the filing of petitions raising routine allegations of error and to
direct litigants to present only those claims that meet the
criteria defined by the Rule. Rule 315(a), by its own terms,
however, does not "contro[l]" or "measur[eJ" the Illinois Supreme
Court's discretion. The Illinois Supreme Court is free to take
cases that do not fall easily within the descriptions listed in the
Rule. Moreover, even if we were to assume that the Rule discourages
the filing of certain petitions, it is difficult to discern which
cases fall into the "discouraged" category. In this case, for
example, the parties disagree about whether, under the terms of
Rule 315(a), Boerckel's claims should have been presented to the
Illinois Supreme Court. Compare Brief for Respondent 5 with Reply
Brief for Petitioner 5.
The better reading of Rule 315(a) is that the Illinois Supreme
Court has the opportunity to decide which cases it will consider on
the merits. The fact that Illinois has adopted a discretionary
review system may reflect little more than that there are resource
constraints on the Illinois Supreme Court's ability to hear every
case that is presented to it. It may be that, given the necessity
of a discretionary review system, the Rule allows the Illinois
Supreme Court to expend its limited resources on "questions of
broad significance." We cannot conclude from this Rule, however,
that review in the Illinois Supreme Court is unavailable. By
requiring state prisoners to give the Illinois Supreme Court the
opportunity to resolve constitutional errors in the first instance,
the rule we announce today serves the comity interests that drive
the exhaustion doctrine.
Boerckel's second argument is related to his first. According to
Boerckel, because the Illinois Supreme Court has announced (through
Rule 315(a)) that it does not want to hear routine allegations of
error, a rule requiring state pris-
847
oners to file petitions for review with that court offends
comity by inundating the Illinois Supreme Court with countless
unwanted petitions. Brief for Respondent 8-14. See also 135 F. 3d,
at 1201. This point, of course, turns on Boerckel's interpretation
of Rule 315(a), an interpretation that, as discussed above, we do
not find persuasive. Nor is it clear that the rule we announce
today will have the effect that Boerckel predicts. We do not know,
for example, what percentage of Illinois state prisoners who
eventually seek federal habeas relief decline, in the first
instance, to seek review in the Illinois Supreme Court.
We acknowledge that the rule we announce today-requiring state
prisoners to file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the
State-has the
potential to increase the number of filings in
state supreme courts. We also recognize that this increased burden
may be unwelcome in some state courts because the courts do not
wish to have the opportunity to review constitutional claims before
those claims are presented to a federal habeas court. See,
e. g.,
In re Exhaustion of State Remedies in Criminal and
PostConviction Relief Cases, 321 S. C. 563, 471 S. E. 2d 454
(1990); see also
State v.
Sandon, 161 Ariz. 157, 777
P. 2d 220 (1989). Under these circumstances, Boerckel may be
correct that the increased, unwelcome burden on state supreme
courts disserves the comity interests underlying the exhaustion
doctrine. In this regard, we note that nothing in our decision
today requires the exhaustion of any specific state remedy when a
State has provided that that remedy is unavailable. Section
2254(c), in fact, directs federal courts to consider whether a
habeas petitioner has "the right
under the law of the State to
raise, by any available procedure, the question presented."
(Emphasis added.) The exhaustion doctrine, in other words, turns on
an inquiry into what procedures are "available" under state law. In
sum, there is nothing in the exhaustion doctrine requiring federal
courts
848
to ignore a state law or rule providing that a given procedure
is not available. We hold today only that the creation of a
discretionary review system does not, without more, make review in
the Illinois Supreme Court unavailable.
Boerckel's amended federal habeas petition raised three claims
that he had pressed before the Appellate Court of Illinois, but
that he had not included in his petition for leave to appeal to the
Illinois Supreme Court. There is no dispute that this state court
remedy-a petition for leave to appeal to the Illinois Supreme
Court-is no longer available to Boerckel; the time for filing such
a petition has long passed. See Ill. Sup. Ct. Rule 315(b). Thus,
Boerckel's failure to present three of his federal habeas claims to
the Illinois Supreme Court in a timely fashion has resulted in a
procedural default of those claims. See
Coleman v.
Thompson, 501 U. S., at 731-732;
Engle v.
Isaac, 456 U.
S. 107, 125126, n. 28 (1982).
We do not disagree with JUSTICE STEVENS' general description of
the law of exhaustion and procedural default. Specifically, we do
not disagree with his description of the interplay of these two
doctrines.
Post, at 853-854 (dissenting opinion). As JUSTICE
STEVENS notes, a prisoner could evade the exhaustion
requirement-and thereby undercut the values that it serves-by
"letting the time run" on state remedies.
Post, at 853. To
avoid this result, and thus "protect the integrity" of the federal
exhaustion rule, ibid., we ask not only whether a prisoner has
exhausted his state remedies, but also whether he has
properly exhausted those remedies, i.
e., whether he
has fairly presented his claims to the state courts, see
post, at 854. Our disagreement with JUSTICE STEVENS in this
case turns on our differing answers to this last question: Whether
a prisoner who fails to present his claims in a petition for
discretionary review to a state court of last resort has
properly presented his claims to the state courts. Because
we answer this question "no," we conclude that Boerckel has
procedurally defaulted his claims.
849
Accordingly, the judgment of the Court of Appeals for the
Seventh Circuit is reversed.
It is so ordered.
JUSTICE SOUTER, concurring.
I agree with the Court's strict holding that "the creation of a
discretionary review system does not, without more, make review in
the Illinois Supreme Court unavailable" for purposes of federal
habeas exhaustion.
Ante, at 848. I understand the Court to
have left open the question (not directly implicated by this case)
whether we should construe the exhaustion doctrine to force a
State, in effect, to rule on discretionary review applications when
the State has made it plain that it does not wish to require such
applications before its petitioners may seek federal habeas relief.
The Supreme Court of South Carolina, for example, has declared:
"[I]n all appeals from criminal convictions or postconviction
relief matters, a litigant shall not be required to petition for
rehearing and certiorari following an adverse decision of the Court
of Appeals in order to be deemed to have exhausted all available
state remedies respecting a claim of error. Rather, when the claim
has been presented to the Court of Appeals or the Supreme Court,
and relief has been denied, the litigant shall be deemed to have
exhausted all available state remedies." In re Exhaustion of
State Remedies in Criminal and Post-Conviction Relief Cases,
321 S. C. 563, 564, 471 S. E. 2d 454 (1990).
The Court is clear that "nothing in the exhaustion doctrine
requir[es] federal courts to ignore a state law or rule providing
that a given procedure is not available."
Ante, at 847-848.
Its citation of
In re Exhaustion of State Remedies, for the
proposition that the increased burden on state courts may be
unwelcome, should not be read to suggest something more: that
however plainly a State may speak its
850
highest court must be subjected to constant applications for a
form of discretionary review that the State wishes to reserve for
truly extraordinary cases, or else be forced to eliminate that kind
of discretionary review.
In construing the exhaustion requirement, "[w]e have ... held
that state prisoners do not have to invoke extraordinary remedies
when those remedies are alternatives to the standard review process
and where the state courts have not provided relief through those
remedies in the past."
Ante, at 844 (citing
Wilwording v.
Swenson, 404 U. S. 249, 249-250
(1971)
(per curiam)). I understand that we leave open the
possibility that a state prisoner is likewise free to skip a
procedure even when a state court has occasionally employed it to
provide relief, so long as the State has identified the procedure
as outside the standard review process and has plainly said that it
need not be sought for the purpose of exhaustion. It is not obvious
that either comity or precedent requires otherwise.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
The Court's opinion confuses two analytically distinct
judge-made rules: (1) the timing rule, first announced in
Ex
parte Royall, 117
U. S. 241 (1886), and later codified at 28 U. S. C. §
2254(b)(1) (1994 ed., Supp. III), that requires a state prisoner to
exhaust his state remedies before seeking a federal writ of habeas
corpus; and (2) the waiver, or so-called procedural default, rule,
applied in cases like
Francis v.
Henderson, 425 U. S. 536 (1976),
that forecloses relief even when the petitioner has exhausted his
remedies.
Properly phrased, the question presented by this case is not
whether respondent's claims were exhausted; they clearly were
because no state remedy was available to him when he applied for
the federal writ. The question is whether we should hold that his
claims are procedurally defaulted and thereby place still another
procedural hurdle in
851
the path of applicants for federal relief who have given at
least two state courts a fair opportunity to consider the merits of
their constitutional claims. Before addressing that question, I
shall briefly trace the history of the two separate doctrines that
the Court has improperly commingled.
I
"[T]he problem of waiver is separate from the question whether a
state prisoner has exhausted state remedies."
Engle v.
Isaac, 456 U.
S. 107, 125-126, n. 28 (1982). The question of exhaustion
"refers only to remedies still available at the time of the federal
petition," ibid.; it requires federal courts to ask whether an
applicant for federal relief could still get the relief he seeks in
the state system. If the applicant currently has a state avenue
available for raising his claims, a federal court, in the interest
of comity, must generally abstain from intervening. This
time-honored rule has developed over several decades of cases,
always with the goal of respecting the States' interest in passing
first on their prisoners' constitutional claims in order to act as
the primary guarantor of those prisoners' federal rights, and
always separate and apart from rules of waiver.
In
Ex parte Royall this Court reviewed a federal trial
judge's decision dismissing for want of jurisdiction a state
prisoner's application for a writ of habeas corpus. The prisoner,
who was awaiting trial on charges that he had violated a Virginia
statute, alleged that the statute was unconstitutional. This Court
held that the trial court had jurisdiction, but nevertheless
concluded that as a matter of comity the court had "discretion,
whether it will discharge him, upon habeas corpus, in advance of
his trial in the court in which he is indicted." 117 U. S., at 253.
Moreover, we held that, even if the prisoner was convicted, the
court still had discretion to await a decision by the highest court
of the State.
We clarified this abstention principle in
Urquhart v.
Brown, 205
U. S. 179 (1907). We stated that the "excep-
852
tional cases in which a Federal court or judge may sometimes
appropriately interfere by
habeas corpus in advance of final
action by the authorities of the State are those of great urgency,"
id., at 182, that involve the authority of the General Government.
Apart from those rare cases presenting "exceptional circumstances
of peculiar urgency," see
United States ex rel. Kennedy v.
Tyler, 269 U.
S. 13, 17 (1925), our early cases consistently applied the rule
summarized in
Ex parte Hawk, 321 U. S. 114, 116-117
(1944)
(per curiam): "Ordinarily an application for habeas
corpus by one detained under a state court judgment of conviction
for crime will be entertained by a federal court only after all
state remedies available, including all appellate remedies in the
state courts and in this Court by appeal or writ of certiorari,
have been exhausted."
The 1948 statute changed neither that rule nor its exclusive
emphasis on timing. In that year, "Congress codified the exhaustion
doctrine in 28 U. S. C. § 2254, citing
Ex parte Hawk as
correctly stating the principle of exhaustion."
Rose v.
Lundy, 455 U.
S. 509, 516 (1982). The statute as enacted provided that an
application for a writ by a state prisoner "shall not be granted"
unless the applicant has exhausted his state remedies and, as the
amended statute still does today, further provided that the
applicant shall not be deemed to have done so "if he has the right
under the law of the State to raise, by any available procedure,
the question presented." 62 Stat. 967; 28 U. S. C. § 2254(d) (1994
ed., Supp. III). We interpreted this statute in
Rose as
requiring "total exhaustion"-that is, as requiring federal courts
to dismiss habeas petitions when any of the claims could still be
brought in state court. 455 U. S., at 522. Conversely, of course,
if no state procedure is available for raising any claims at the
time a state prisoner applies for federal relief, the exhaustion
requirement is satisfied.
To be sure, the fact that a prisoner has failed to invoke an
available state procedure may provide the basis for a
853
conclusion that he has waived a claim. But the exhaustion
inquiry focuses entirely on the availability of state procedures at
the time when the federal court is asked to entertain a habeas
petition. Our decision in
Moore v.
Dempsey, 261 U. S. 86 (1923), which
was cited with approval in
Hawk, 321 U. S., at 118,
illustrates this principle. In that case, the Arkansas Supreme
Court had rejected the petitioner's jury discrimination claim
because he had asserted it in a motion for new trial that "came too
late." 261 U. S., at 93. But, in holding that the Federal District
Court should have entertained the claim, we obviously found that
the state court's refusal to hear the claim on procedural grounds
did not mean that the claim had not been exhausted. When we
implicitly overruled
Moore several years later in
Coleman v.
Thompson, 501 U. S. 722 (1991), we
did so only on waiver grounds. We explicitly noted that "[a] habeas
petitioner who has defaulted his federal claims in state court
meets the technical requirements for exhaustion; there are no state
remedies any longer 'available' to him."
Id., at 732.
Neither party argues that respondent currently has any state
remedies available to him. The Court recognizes this circumstance,
see
ante, at 848, but still purports to analyze whether
respondent has "exhausted [his] claims in state court."
Ante, at 839, 842. Since I do not believe that this case
raises an exhaustion issue, I turn to the subject of waiver.
II
In order to protect the integrity of our exhaustion rule, we
have also crafted a separate waiver rule, or-as it is now commonly
known-the procedural default doctrine. The purpose of this doctrine
is to ensure that state prisoners not only become ineligible for
state relief before raising their claims in federal court, but also
that they give state courts a sufficient opportunity to decide
those claims before doing so. If we allowed state prisoners to
obtain federal review simply by letting the time run on adequate
and accessible
854
state remedies and then rushing into the federal system, the
comity interests that animate the exhaustion rule could easily be
thwarted. We therefore ask in federal habeas cases not only whether
an applicant has exhausted his state remedies; we also ask how he
has done so. This second inquiry forms the basis for our procedural
default doctrine: A habeas petitioner who has concededly exhausted
his state remedies must also have
properly done so by giving
the State a fair "opportunity to pass upon [his claims]."
Darr v.
Burford, 339 U. S. 200, 204
(1950). When a prisoner has deprived the state courts of such an
opportunity, he has procedurally defaulted his claims and is
ineligible for federal habeas relief save a showing of "cause and
prejudice," Mur
ray v.
Carrier, 477 U. S. 478, 485
(1986), or "'a fundamental miscarriage of justice'" id., at
495.
In the first of our modern procedural default cases,
Francis v.
Henderson, 425 U. S. 536 (1976), we
held that a state prisoner had waived his right to challenge the
composition of his grand jury because he had failed to comply with
a state law requiring that such a challenge be made in advance of
trial. Our opinion did not even mention the obvious fact that the
petitioner had exhausted his state remedies; rather, it stressed
the importance of requiring "'prompt assertion of the right to
challenge discriminatory practices in the make-up of a grand
jury.'"
Id., at 541.
Similarly, in
Wainwright v.
Sykes, 433 U. S. 72 (1977), we
held that the failure to object at trial to the admission of an
inculpatory statement precluded a federal court from entertaining
in a habeas proceeding the claim that the statement was
involuntary. Our opinion correctly assumed that the petitioner had
exhausted his state remedies.
Id., at 80-81. Our conclusion
that waiver was appropriate rested largely on the importance of
treating a trial as "the 'main event,' so to speak," and making the
necessary record "with respect to the constitutional claim when the
recollections of witnesses are freshest, not years later in a
federal habeas proceeding."
855
Id., at 88,90. In
Engle v.
Isaac, 456 U. S. 107 (1982),
another case in which the prisoner had unquestionably exhausted his
state remedies, see id., at 125-126, n. 28, we held that a claimed
constitutional defect in the trial judge's instructions to the jury
had been waived because the objection had not been raised at
trial.
In
Coleman, the Court extended our procedural default
doctrine to state collateral appellate proceedings. The Court held
that an inmate's constitutional claims that he had advanced in a
state habeas proceeding could not be entertained by a federal court
because his appeal from the state trial court's denial of
collateral relief had been filed three days late. The Court, as I
noted above, expressly stated that the exhaustion requirement had
been satisfied because "there [were] no state remedies any longer
'available' to him." 501 U. S., at 732. But because the State had
consistently and strictly applied its timing deadlines for filing
such appellate briefs in this and other cases, we concluded that
Coleman had effectively deprived the State of a fair opportunity to
pass on his claims and thus had procedurally defaulted them.
On the other hand, we have continually recognized, as the Court
essentially does again today,
ante, at 844, that a state
prisoner need not have invoked every conceivably "available" state
remedy in order to avoid procedural default. As far back as
Brown v.
Allen, 344 U. S. 443, 447
(1953), we held that even when a State offers postconviction
procedures, a prisoner does not have "to ask the state for
collateral relief, based on the same evidence and issues already
decided by direct review." We later held that prisoners who have
exhausted state habeas procedures need not have requested in state
courts an injunction, a writ of prohibition, mandamus relief, a
declaratory judgment, or relief under the State Administrative
Procedure Act, even if those procedures were technically available.
Wilwording v.
Swenson, 404 U. S. 249 (1971)
(per curiam). Federal courts also routinely and cor-
856
rectly hold that prisoners have exhausted their state remedies,
and have
not procedurally defaulted their claims, when those
prisoners had the right under state law to file a petition for
rehearing from the last adverse state-court decision and failed to
do so.
The presence or absence of exhaustion, in sum, tells us nothing
about whether a prisoner has defaulted his constitutional claims.
Exhaustion is purely a rule of timing and has played no role in the
series of waiver decisions that foreclosed challenges to the
composition of the grand jury, evidentiary rulings at trial,
instructions to the jury, and finally, counsel's inadvertent error
in failing to file a timely appeal from a state court's denial of
collateral relief. The Court's reasons for progressively expanding
its procedural default doctrine were best explained in the cases
that arose in a trial setting. By failing to raise their
constitutional objections at trial, defendants truly impinge state
courts' ability to correct, or even to make a record regarding the
effect of, legal errors. See
Engle, 456 U. S., at 128;
Wainwright, 433 U. S., at 90. Though I found that reasoning
unsatisfactory in the state postconviction context, see
Coleman, 501 U. S., at 758 (Blackmun, J., joined by Marshall
and STEVENS, JJ., dissenting), at least the Court did not make the
analytical error that pervades its opinion today. It did not assume
that there was any necessary connection between the question of
exhaustion and the question of procedural default.
III
I come now to the real issue presented by this case: whether
respondent's failure to include all six of his current claims in
his petition for leave to appeal to the Illinois Supreme Court
should result in his procedurally defaulting the three claims he
did not raise.
The Court barely answers this question. Even though no one
contends that respondent currently has any state remedy available
to him, the Court concentrates instead on
857
exhaustion. It states that respondent has not exhausted his
claims because he had "'the right ... to raise' [his] claims
through a petition for discretionary review in the [Illinois
Supreme Court]."
Ante, at 845 (quoting 28 U. S. C. §
2254(c)). The Court adds to this that "the creation of a
discretionary review system does not, without more, make review in
the Illinois Supreme Court unavailable."
Ante, at 848. But,
as the Court acknowledges almost immediately thereafter, the fact
that "the time for filing [a petition to that court] has long
passed" most assuredly makes such review unavailable in this case.
Ibid. The Court then resolves this case's core issue in a
single sentence and two citations:
"Thus, Boerckel's failure to present three of his federal habeas
claims to the Illinois Supreme Court in a timely fashion has
resulted in a procedural default of those claims.
Coleman v.
Thompson, 501 U. S., at 731-732;
Engle v.
Isaac,
456 U. S. 107, 125-126, n. 28 (1982)."
Ibid.
I disagree that respondent has procedurally defaulted these
three claims, and neither
Engle nor
Coleman suggests
otherwise. The question we must ask is whether respondent has given
the State a fair opportunity to pass on these claims. This Court
has explained that the best way to determine the answer to this
question is to "respect ... state procedural rules" and to inquire
whether the State has denied (or would deny) relief to the prisoner
based on his failure to abide by any such rule.
Coleman, 501
U. S., at 751. See also
Engle, 456 U. S., at 129 (federal
courts should avoid "undercutting the State's ability to enforce
its procedural rules"). Thus, we held in
Engle that a
prisoner defaults a claim by failing to follow a state rule
requiring that it be raised at trial or on direct appeal. The Court
in
Coleman felt so strongly about "the important interests
served by state procedural rules at every stage of the judicial
process and the harm to the States that results when federal courts
ignore these rules," 501 U. S., at 749, that it imposed procedural
default on a death-row inmate for filing his appellate
858
brief in state postconviction review just three days after the
State's deadline.
Surely the Illinois Supreme Court's discretionary review rule
and respondent's attempt to follow it are entitled to at least as
much respect. It is reasonable to assume that the Illinois Supreme
Court, like this Court, has established a discretionary review
system in order to reserve its resources for issues of broad
significance. Claims of violations of well-established
constitutional rules, important as they may be to individual
litigants, do not ordinarily present such issues.
Discretionary review rules not only provide an effective tool
for apportioning limited resources, but also foster more useful and
effective advocacy. We have recognized on numerous occasions that
the "process of 'winnowing out weaker arguments on appeal and
focusing on' those more likely to prevail ... is the hallmark of
effective appellate advocacy.'"
Smith v.
Murray,
477 U. S. 527,
536 (1986) (quoting
Jones v.
Barnes, 463 U. S. 745, 751-752
(1983)). This maxim is even more germane regarding petitions for
certiorari. The most helpful and persuasive petitions for
certiorari to this Court usually present only one or two issues,
and spend a considerable amount of time explaining why those
questions of law have sweeping importance and have divided or
confused other courts. Given the page limitations that we impose, a
litigant cannot write such a petition if he decides, or is
required, to raise every claim that might possibly warrant reversal
in his particular case.
The Court of Appeals for the Seventh Circuit found that these
same factors animate the Illinois Supreme Court's discretionary
review rule. See
135 F.3d
1194, 1200 (1998). It also pointed out that Illinois courts in
state habeas proceedings dismiss claims like respondent's on res
judicatanot waiver-grounds once they have been pressed at trial and
on direct appeal; it makes no difference whether the prisoner has
raised the claim in a petition for review to
859
the Illinois Supreme Court.
Id., at 1199 (citing
Gomez v.
Acevedo, 106 F.3d
192, 195-196
(CA7 1997) (which cites in turn
People v.
Coleman, 168 Ill. 2d 509, 522-523, 660 N.
E. 2d 919, 927 (1995))). The Illinois courts, in other words, are
prepared to stand behind the merits of their decisions regarding
constitutional criminal procedure once a trial court and an
appellate court have passed on them. No state procedural ground
independently supports such decisions, so federal courts do not
undercut Illinois' procedural rules by reaching the merits of the
constitutional claims resolved therein. See
Coleman, 501 U.
S., at 736-738.
We ordinarily defer to a federal court of appeals'
interpretation of state-law questions. See
Bishop v.
Wood, 426 U.
S. 341, 346-347 (1976). The Court today nevertheless refuses to
conclude that the Illinois rule "discourages the filing of certain
petitions" (or even certain claims in petitions), and surmises
instead that the rule does nothing more than announce the State
Supreme Court's desire to decide for itself which cases it will
consider on the merits.
Ante, at 846. This analysis strikes
me as unsatisfactory. I would, consistent with the Seventh
Circuit's view, read the Illinois rule as dissuading the filing of
fact-intensive claims of error that fail to present any issue of
broad significance. I would also deduce from the rule that Illinois
prisoners need not present their claims in discretionary review
petitions before raising them in federal court.
The Court's decision to the contrary is unwise. It will impose
unnecessary burdens on habeas petitioners; it will delay the
completion of litigation that is already more protracted than it
should be; and, most ironically, it will undermine federalism by
thwarting the interests of those state supreme courts that
administer discretionary dockets. If, as the Court has repeatedly
held, the purpose of our waiver doctrine is to cultivate comity by
respecting state procedural rules, then I agree with the Court of
Appeals that we should not create procedural obstacles when state
prison-
860
ers follow those rules. In fact, I find these observations by
the Court of Appeals far more persuasive than anything in to day's
opinion:
"Boerckel provided Illinois state courts with an opportunity to
review the matter in his direct appeal. Federal courts do not
snatch claims from state courts when they review claims not
included in discretionary petitions to state supreme courts. Our
refusal to bar Boerckel from habeas review is a recognition of the
inequity of penalizing a petitioner for following the requirements
a state imposes on its second tier of appellate review. Allowing
petitioners to exercise the discretion provided them by the states
in selecting claims to petition for leave to appeal does not offend
comity.
"We also note that requiring petitioners to argue all of their
claims to the state supreme court would turn federalism on its
head. If a state has chosen a system that asks petitioners to be
selective in deciding which claims to raise in a petition for leave
to appeal to the state's highest court, we seriously question why
this Court should require the petitioner to raise all claims to the
state's highest court if he hopes to request habeas review. The
exhaustion requirement of § 2254 does not require such a
result.
"Moreover, contrary to O'Sullivan's suggestion, this decision
will not 'obliterate any opportunity for a state's highest court to
protect federally secured rights because it will leave state
prisoners with little incentive to petition state supreme courts.'
Respondent Br. at 19. It is difficult to imagine that this holding
will induce attorneys and defendants in state government custody to
withhold an appropriate claim in a petition for leave to appeal to
the state's highest court, knowing that it cannot hurt and could
only potentially help their cause. O'Sullivan's argument assumes a
remarkably risk-prone
861
group of defendants and attorneys, especially given the fact
that 'the success rate at trial and on appeal, while low, is
greater than the success rate on habeas corpus.' See Judith
Resnik, Tiers, 57 S. Cal. L. Rev. 837, 894 (1984). We do not
believe that it accurately predicts the effect our holding will
have on the incentives to petition the Illinois Supreme Court.
"Finally, we reiterate our concern that '[t]reating an omission
from a petition for a discretionary hearing as a conclusive bar to
federal review under § 2254 could create a trap for unrepresented
prisoners, whose efforts to identify unsettled and important issues
suitable for discretionary review would preclude review of errors
under law already established.' Hogan [v. McBride],
74 F. 3d [144,] 147 [(CA7 1996)]." 135 F. 3d, at 1201-1202.
The Court of Appeals, in effect, held that federal courts should
respect state procedural rules regardless of whether applying them
impedes access to federal habeas review or signals the availability
of such relief. The Court today, on the other hand, admits that its
decision may "disserv[e] ... comity" and may cause an "unwelcome"
influx of filings in state supreme courts.
Ante, at 847. It
takes no issue with the Court of Appeals' finding that Illinois
would not invoke an independent state procedural ground as an
alternative basis for denying relief to prisoners in respondent's
situation. The Court today nevertheless requires defendants in
every criminal case in States like Illinois to present to the state
supreme court every federal issue that the defendants think might
possibly warrant some relief if brought in a future federal habeas
petition.
Thankfully, the Court leaves open the possibility that state
supreme courts with discretionary dockets may avoid a deluge of
undesirable claims by making a plain statement-as Arizona and South
Carolina have done, see
ibid.that they do not wish the
opportunity to review such claims before they pass into the federal
system. I agree with
862
JUSTICE SOUTER,
ante, at 850 (concurring opinion), that a
proper conception of comity obviously requires deference to such a
policy. But we should accord such deference under the procedural
default doctrine, not by allowing state courts to construe for
themselves the federal-law exhaustion requirement in § 2254. No
matter how plainly a state court has said that it does not want the
opportunity to review certain claims, discretionary review was
either "available" to a prisoner when he was in the state system or
it was not. And when the prisoner arrives in federal court, either
the time for seeking discretionary review has run or it has not.
The key point is that federal courts should not find
procedural
default when a prisoner has relied on a state supreme court's
explicit statement that criminal defendants need not present to it
every claim that they might wish to assert as a ground for relief
in federal habeas proceedings.
I see no compelling reason to require States that already have
discretionary docket rules to take this additional step of
expressly disavowing any desire to be presented with every such
claim. In my view, it should be enough to avoid waiving a claim
that a state prisoner in a State like Illinois raised that claim at
trial and in his appeal as of right.
I respectfully dissent.
JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
In my view, whether a state prisoner (who failed to seek
discretionary review in a state supreme court) can seek federal
habeas relief depends upon the State's own preference. If the State
does not want the prisoner to seek discretionary state review (or
if it does not care), why should that failure matter to federal
habeas law? See,
e. g., Coleman v.
Thompson,
501 U. S. 722, 731-732,
751 (1991) (emphasizing comity interest in federal habeas).
Illinois' procedural rules, like similar rules in other States,
suggest that the State does not want prisoners to seek
discretionary State Supreme Court
863
review except in unusual circumstances. See Ill. Sup. Ct. Rule
315(a) (1998); accord,
e. g., Colo. Rule App. 49 (1998)
(discretionary review granted "only when there are special and
important reasons therefor"); Idaho Rule App. 118(b) (1999)
(similar); Tenn. Rule App. Proc. l1(a) (1998) (similar). And
JUSTICE STEVENS has explained how the majority's view of the matter
will force upon state supreme courts many petitions for review that
fall outside the scope of their discretionary review and which
those courts would likely prefer not to handle.
Ante, at 858
(dissenting opinion).
The small number of cases actually reviewed by state courts with
discretion over their dockets similarly suggests that States such
as Illinois have no particular interest in requiring state
prisoners to seek discretionary review in every case. In 1997, the
latest year for which statistics are available, the Illinois
Supreme Court granted review in only 33 of the 1,072 criminal
petitions filed (3.1%). See memorandum from Carol R. Flango,
National Center for State Courts, to Supreme Court Library (June
11, 1999) (available in Clerk of Court's case file). Nor is
Illinois unique among state courts of last resort employing
discretionary review. See
ibid. (in 1997, Virginia's Supreme
Court granted 30 of 1,160 criminal petitions for review (2.6%);
California granted 39 of 3,265 (1.2%); Georgia granted 11 of 189
(5.8%); Ohio granted 16 of 595 (2.7%); Connecticut granted 24 of
113 (21.2%); Louisiana granted 127 of 1,410 (9.0%); Minnesota
granted 38 of 222 (17.1%); North Carolina granted 23 of 237 (9.7%);
Tennessee granted 41 of 549 (7.5%); Texas granted 111 of 1,677
(6.6%)). On the majority's view, these courts must now consider
additional petitions for review of criminal cases, which petitions
will contain many claims raised only to preserve a right to pursue
those claims in federal habeas proceedings. The result will add to
the burdens of already overburdened state courts and delay further
a criminal process that is often criticized for too much delay. Cf.
Hohn v.
United States, 524 U. S. 236, 264 (1998)
(SCALIA, J., dissenting) (complaining of
864
"interminable delays in the execution of state ... criminal
sentences"). I do not believe such a result "demonstrates respect
for the state courts."
Rose v.
Lundy, 455 U. S. 509, 525 (1982)
(Blackmun, J., concurring).
I nonetheless see cause for optimism. JUSTICE SOUTER'S
concurring opinion suggests that a federal habeas court should
respect a State's desire that prisoners
not file petitions
for discretionary review, where the State has expressed the desire
clearly.
Ante, at 849-850. On that view, to day's holding
creates a kind of presumption that a habeas petitioner must raise a
given claim in a petition for discretionary review in state court
prior to raising that claim on federal habeas, but the State could
rebut the presumption through state law clearly expressing a desire
to the contrary. South Carolina has expressed that contrary
preference. See
In re Exhaustion of State Remedies in Criminal
and PostConviction Relief Cases, 321 S. C. 563, 471 S. E. 2d
454 (1990). Other States may do the same.
Even were I to take the majority's approach, however, I would
reverse the presumption. I would presume, on the basis of Illinois'
own rules and related statistics, and in the absence of any clear
legal expression to the contrary, that Illinois does not mind if a
state prisoner does not ask its Supreme Court for discretionary
review prior to seeking habeas relief in federal court. But the
presumption to which JUSTICE SOUTER refers would still help. And I
write to emphasize the fact that the majority has left the matter
open.
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