Cite as: 526 U. S. 838 (1999)
Stevens, J., dissenting
group of defendants and attorneys, especially given the fact that 'the success rate at trial and on appeal, while low, is greater than the success rate on habeas corpus.' See Judith Resnik, Tiers, 57 S. Cal. L. Rev. 837, 894 (1984). We do not believe that it accurately predicts the effect our holding will have on the incentives to petition the Illinois Supreme Court.
"Finally, we reiterate our concern that '[t]reating an omission from a petition for a discretionary hearing as a conclusive bar to federal review under § 2254 could create a trap for unrepresented prisoners, whose efforts to identify unsettled and important issues suitable for discretionary review would preclude review of errors under law already established.' Hogan [v. McBride], 74 F. 3d [144,] 147 [(CA7 1996)]." 135 F. 3d, at 1201-1202.
The Court of Appeals, in effect, held that federal courts should respect state procedural rules regardless of whether applying them impedes access to federal habeas review or signals the availability of such relief. The Court today, on the other hand, admits that its decision may "disserv[e] . . . comity" and may cause an "unwelcome" influx of filings in state supreme courts. Ante, at 847. It takes no issue with the Court of Appeals' finding that Illinois would not invoke an independent state procedural ground as an alternative basis for denying relief to prisoners in respondent's situation. The Court today nevertheless requires defendants in every criminal case in States like Illinois to present to the state supreme court every federal issue that the defendants think might possibly warrant some relief if brought in a future federal habeas petition.
Thankfully, the Court leaves open the possibility that state supreme courts with discretionary dockets may avoid a deluge of undesirable claims by making a plain state-ment—as Arizona and South Carolina have done, see ibid.— that they do not wish the opportunity to review such claims before they pass into the federal system. I agree with
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