90
Stevens, J., dissenting
tain postconviction relief in the state court system were unsuccessful. In 1996 he filed an application for a writ of habeas corpus in the Federal District Court advancing several constitutional claims, two of which raised difficult questions. The first challenged the competency of his trial counsel and the second made serious allegations of prosecutorial misconduct. After hearing extensive evidence on both claims, on April 8, 1998, the District Court entered an order granting relief on the first claim, but holding that the second was procedurally barred because it had not been fully exhausted in the state courts. Abdur'Rahman v. Bell, 999 F. Supp. 1073 (MD Tenn. 1998). The procedural bar resulted from petitioner's failure to ask the Supreme Court of Tennessee to review the lower state courts' refusal to grant relief on the prosecutorial misconduct claim. Id., at 1080-1083.
The District Court's ruling that the claim had not been fully exhausted appeared to be correct under Sixth Circuit precedent 2 and it was consistent with this Court's later holding in O'Sullivan v. Boerckel, 526 U. S. 838 (1999). In response to our decision in O'Sullivan, however, the Tennessee Supreme Court on June 28, 2001, adopted a new rule that changed the legal landscape. See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies. App. 278. That new rule made it perfectly clear that the District Court's procedural bar holding was, in fact, erroneous.3
2 See Silverburg v. Evitts, 993 F. 2d 124 (CA6 1993). Other Circuits had held that the exhaustion requirement may be satisfied without seeking discretionary review in a State's highest court. See, e. g., Dolny v. Erickson, 32 F. 3d 381 (CA8 1994); Boerckel v. O'Sullivan, 135 F. 3d 1194 (CA7 1998).
3 Tennessee Supreme Court Rule 39 reads, in relevant part: "In all appeals from criminal convictions or post-conviction relief matters from and after July 1, 1967, a litigant shall not be required to petition for rehearing or to file an application for permission to appeal to the Supreme Court of Tennessee following an adverse decision of the Court of Criminal Appeals in order to be deemed to have exhausted all available state remedies
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