FindLaw > Criminal Law Summaries > 1998 Index > O'Sullivan v. Boerckel

Case: O'Sullivan v. Boerckel

Issue: Has a federal habeas petitioner properly exhausted his state remedies by failing to raise in a state petition for discretionary review the errors complained of in the federal habeas action?

Facts: Respondent Boerckel filed a federal habeas petition, raising grounds of error which he had unsuccessfully presented in his Illinois state criminal trial and on appeal as of right to the state intermediate appellate court, but which he had not raised in front of the Illinois Supreme Court on petition for discretionary review. The United States District Court held that Boerckel had procedurally defaulted his claims by failing to include them in his petition for leave to appeal to the Illinois Supreme Court. The United States Court of Appeals for the Seventh Circuit reversed.

Holding: Federal habeas relief pursuant to 28 U.S.C. §§ 2254(b)(1), (c), is not available to state prisoners whose federal habeas grounds of error were not presented to a state's highest appellate court under that state's system of discretionary review. In this situation, the habeas petitioner has not properly exhausted his state remedies and has thus procedurally defaulted.

Reasoning: Justice O'Connor, writing for a six-member majority, looked to the language of § 2254(c) which provides that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the state . . . if he has the right under the law of the state to raise, by any available procedure, the question present." While conceding that state prisoners are not required to invoke "any possible avenue of state court review" the Court noted that state prisoners must "give state courts a fair opportunity to act on their claims." Since "the exhaustion doctrine is designed to give the state court a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process." Since Illinois's established appellate review procedure is two-tiered, Boerckel had to "use the state's established appellate review procedures before he present[ed] his claims to a federal court." The court noted that "nothing in our decision today requires the exhaustion of any specific state remedy when the state has provided that that remedy is unavailable." Thus, "there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available. We hold today only that the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable." Since the state court remedy that Boerckel should have followed is no longer available, because the time for filing his petition has passed, he has procedurally defaulted on his claims.

Other Opinions: Justice Souter concurred in the Court's opinion with the understanding that it "left open the question . . . whether we should construe the exhaustion doctrine to force the state, in effect, to rule on discretionary review applications when the state has made it plain that it does not wish to require such applications before its petitioners may seek federal habeas relief." Justice Stevens joined by Justices Ginsberg and Breyer dissented, criticizing the majority's confusion of the exhaustion of remedies and procedural default doctrines. Considering the real issue presented by the case to be one of procedural default, Stevens argued that Boerckel gave the state a fair opportunity to pass on his claims by presenting them at trial and on first appeal as of right, and thus had not procedurally defaulted. "It is reasonable to assume that the Illinois Supreme Court, like this Court, has established a discretionary review system in order to reserve its resources for issues of broad significance. Claims of violations of well established constitutional rules, important as they may be to individual litigants, do not ordinarily present such issues." As to the majority's invitation to state courts to make a plain statement "that they do not wish the opportunity to review such claims before they pass into the federal system," Stevens saw "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." Justice Breyer joined by Justices Stevens and Ginsberg also dissented. He noted the small percentage of petitions for discretionary review granted by state courts, and complained that "these courts must now consider additional petitions for review of criminal cases, which petitions will contain many claims raised only to preserve a right to pursue those claims in federal habeas proceedings." According to Breyer, Illinois's rules suggest that it "does not want prisoners to seek discretionary state supreme court review except in unusual circumstances." He thus disagreed with the majority's creation of a "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 [that] the state [can] rebut the presumption through state law clearly expressing a desire to the contrary." Breyer argued that any presumption should have gone the other way given Illinois's own rules and 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 for habeas relief in federal court."

Comment: This decision is unlikely to have any profound long-term affect. Most state courts with discretionary appellate review procedures will undoubtedly follow the implicit suggestion of the majority and the explicit suggestion of the concurrence and the dissent and issue statements to the effect that failure to raise all issues at the discretionary appeal level should not result in federal habeas procedural default.