O'Sullivan v. Boerckel, 526 U.S. 838, 18 (1999)

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Cite as: 526 U. S. 838 (1999)

Stevens, J., dissenting

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-

855

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