864
Breyer, J., dissenting
"interminable delays in the execution of state . . . criminal sentences"). I do not believe such a result "demonstrates respect for the state courts." Rose v. Lundy, 455 U. S. 509, 525 (1982) (Blackmun, J., concurring).
I nonetheless see cause for optimism. Justice Souter's concurring opinion suggests that a federal habeas court should respect a State's desire that prisoners not file petitions for discretionary review, where the State has expressed the desire clearly. Ante, at 849-850. On that view, today's holding creates a kind of presumption that a habeas petitioner must raise a given claim in a petition for discretionary review in state court prior to raising that claim on federal habeas, but the State could rebut the presumption through state law clearly expressing a desire to the contrary. South Carolina has expressed that contrary preference. See In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S. C. 563, 471 S. E. 2d 454 (1990). Other States may do the same.
Even were I to take the majority's approach, however, I would reverse the presumption. I would presume, on the basis of Illinois' own rules and related statistics, and in the absence of any clear legal expression to the contrary, that Illinois does not mind if a state prisoner does not ask its Supreme Court for discretionary review prior to seeking habeas relief in federal court. But the presumption to which Justice Souter refers would still help. And I write to emphasize the fact that the majority has left the matter open.
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