862
Breyer, J., dissenting
Justice Souter, ante, at 850 (concurring opinion), that a proper conception of comity obviously requires deference to such a policy. But we should accord such deference under the procedural default doctrine, not by allowing state courts to construe for themselves the federal-law exhaustion requirement in § 2254. No matter how plainly a state court has said that it does not want the opportunity to review certain claims, discretionary review was either "available" to a prisoner when he was in the state system or it was not. And when the prisoner arrives in federal court, either the time for seeking discretionary review has run or it has not. The key point is that federal courts should not find procedural default when a prisoner has relied on a state supreme court's explicit statement that criminal defendants need not present to it every claim that they might wish to assert as a ground for relief in federal habeas proceedings.
I see no compelling reason to require States that already have discretionary docket rules to take this additional step of expressly disavowing any desire to be presented with every such claim. In my view, it should be enough to avoid waiving a claim that a state prisoner in a State like Illinois raised that claim at trial and in his appeal as of right.
I respectfully dissent.
Justice Breyer, with whom Justice Stevens and Justice Ginsburg join, dissenting.
In my view, whether a state prisoner (who failed to seek discretionary review in a state supreme court) can seek federal habeas relief depends upon the State's own preference. If the State does not want the prisoner to seek discretionary state review (or if it does not care), why should that failure matter to federal habeas law? See, e. g., Coleman v. Thompson, 501 U. S. 722, 731-732, 751 (1991) (emphasizing comity interest in federal habeas). Illinois' procedural rules, like similar rules in other States, suggest that the State does not want prisoners to seek discretionary State Supreme Court
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