Cite as: 526 U. S. 838 (1999)
Stevens, J., dissenting
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-
851
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