O'Sullivan v. Boerckel, 526 U.S. 838, 15 (1999)

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852

O'SULLIVAN v. BOERCKEL

Stevens, J., dissenting

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

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