850
Stevens, J., dissenting
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
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