14
O'Connor, J., dissenting
petition is one with a long history behind it, a history that did not begin with Townsend v. Sain.
II
A
The availability and scope of habeas corpus have changed over the writ's long history, but one thing has remained constant: Habeas corpus is not an appellate proceeding, but rather an original civil action in a federal court. See, e. g., Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 269 (1978). It was settled over a hundred years ago that "[t]he prosecution against [a criminal defendant] is a criminal prosecution, but the writ of habeas corpus . . . is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right." Ex parte Tom Tong, 108 U. S. 556, 559-560 (1883). Any possible doubt about this point has been removed by the statutory procedure Congress has provided for the disposition of habeas corpus petitions, a procedure including such nonappel-late functions as the allegation of facts, 28 U. S. C. § 2242, the taking of depositions and the propounding of interrogatories, § 2246, the introduction of documentary evidence, § 2247, and, of course, the determination of facts at evidentiary hearings, § 2254(d).
To be sure, habeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court. The petitioner must, in general, exhaust available state remedies, § 2254(b), avoid procedural default, Coleman v. Thompson, 501 U. S. 722 (1991), not abuse the writ, McCleskey v. Zant, 499 U. S. 467 (1991), and not seek retroactive application of a new rule of law, Teague v. Lane, 489 U. S. 288 (1989). For much of our history, the hurdles were even higher. See, e. g., Ex parte Watkins, 3 Pet. 193, 203 (1830) (habeas corpus available only to challenge jurisdiction of trial court). But once they have been surmounted—once the claim is properly before the dis-
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