author: Justice O’Connor Justice Souter, Justice Stevens, Justice Breyer,

text:
    O’SULLIVAN v. BOERCKEL
    No. 97-2048.
    Argued March 30, 1999
    Decided June 7, 1999

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ., joined. Souter, J., filed a concurring opinion, post, p. 849. Stevens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 850. Breyer, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 862.

      William L. Browers, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were James E. Ryan, Attorney General, and Michael M. Glick, Assistant Attorney General.
    cause for respondent. With him on the brief were Richard H. Parsons and Jeffrey T. Green.

        Edward M. Chikofsky and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court. 28 U.S. C. §§ 2254(b)(1), (c) (1994 ed. and Supp. III). In this case, we are asked to decide whether a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement We conclude that he must.

I

In 1977, respondent Darren Boerckel was tried in the Circuit Court of Montgomery County, Illinois, for the rape, burglary, and aggravated battery of an 87-year-old woman. The central evidence against him at trial was his written confession to the crimes, a confession admitted over Boerekel’s objection. The jury convicted Boerckel on all three charges, and he was sentenced to serve 20 to 60 years’ imprisonment on the rape charge, and shorter terms on the other two charges, with all sentences to be served concurrently.

Boerckel of Illinois, raising several issues. He argued, among other things, that his confession should have been suppressed because the confession was the fruit of an illegal arrest, because the confession was coerced, and because he had not knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Boerckel also claimed that prosecutorial misconduct denied him a fair trial, that he had been denied discovery of exculpatory material held by the police, and that the evidence was insufficient to support his conviction. The Illinois Appellate Court, with one justice dissenting, rejected Boerekel’s claims and affirmed his convictions and sentences. People v. Boerckel, 68 Ill. App. 3d 103, 385 N. E. 2d 815 (1979).

Illinois Supreme Court. In this petition, he raised only three issues. Boerckel claimed first that his confession was the fruit of an unlawful arrest because, contrary to the Appellate Court’s ruling, he was under arrest when he gave his confession. Boerckel also contended that he was denied a fair trial by prosecutorial misconduct and that he had been erroneously denied discovery of exculpatory material in the possession of the police. The Illinois Supreme Court denied the petition for leave to appeal, and this Court denied BoerckePs subsequent petition for a writ of certiorari. Boerckel v. Illinois, 447 U. S. 911 (1980).

a pro se petition for a writ of ha-beas corpus under 28 U. S. C. § 2254 in the United States District Court for the Central District of Illinois. The District Court appointed counsel for Boerckel, and BoerckePs counsel filed an amended petition in March 1995. The amended petition asked for relief on six grounds: (1) that Boerckel had not knowingly and intelligently waived his Miranda rights; (2) that his confession was not voluntary; (3) that the evidence against him was insufficient to sustain the conviction; (4) that his confession was the fruit of an illegal arrest; (5) that he received ineffective assistance of counsel at trial and on appeal; and (6) that his right to discovery of exculpatory material under Brady v. Maryland, 373 U. S. 83 (1963), was violated.

In an order dated November 15, 1995, the District Court found, as relevant here, that Boerckel had procedurally defaulted his first, second, and third claims by failing to include them in his petition for leave to appeal to the Illinois Supreme Court. No. 94-3258 (CD Ill.), pp. 4-10. Boerckel attempted to overcome the procedural defaults by presenting evidence that he fell within the “fundamental miscarriage of justice” exception to the procedural default rule. See Coleman v. Thompson, 501 U. S. 722, 750 (1991). At a hearing on this issue, Boerckel argued that he was actually innocent of the offenses for which he had been convicted and he presented evidence that he claimed showed that two other men were responsible for the crimes. In a subsequent ruling, the District Court concluded that Boerckel had failed to satisfy the standards established in Schlup v. Delo, 513 U. S. 298 (1995), for establishing the “fundamental miscarriage of justice” exception, and thus held that Boerckel could not overcome the procedural bars preventing review of his claims. No. 94-8258 (CD Ill., Oct. 28, 1996), pp. 14-15. After rejecting Boerekel’s remaining claims for relief, the District Court denied his habeas petition. Id., at 18.

On appeal, the Court of considered one question, namely, whether Boerekel had procedurally defaulted the first three claims in his habeas petition (whether he knowingly and intelligently waived his Miranda rights, whether his confession was voluntary, and whether the evidence was sufficient to support a verdict) by failing to raise those claims in his petition for leave to appeal to the Illinois Supreme Court. The Court of Appeals reversed the judgment of the District Court denying Boerckel’s habeas petition and remanded for further proceedings. 135 F. 3d 1194 (1998). The court concluded that Boerekel was not required to present his claims in a petition for discretionary review to the Illinois Supreme Court to satisfy the exhaustion requirement. Id., at 1199-1202. Thus, according to the Court of Appeals, Boerekel had not procedurally defaulted those claims. Id., at 1202.

We granted certiorari to resolve a of Appeals on this issue. 525 U. S. 999 (1998). Compare e.g., Richardson v. Procunier, 762 F. 2d 429 (CA5 1985) (must file petition for discretionary review), with Dolny v. Erickson, 32 F. 3d 381 (CA8 1994) (petition for discretionary review not required), cert. denied, 513 U. S. 1111 (1995).

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Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine, first announced in Ex parte Royall, 117 U. S. 241 (1886), is now codified at 28 U. S. C. § 2254(b)(1) (1994 ed., Supp. III). This doctrine, however, raises a recurring question: What state remedies must a habeas petitioner invoke to satisfy the federal exhaustion requirement? See Castille v. Peoples, 489 U. S. 346, 349-350 (1989); Wainwrigkt v. Sykes, 433 U. S. 72, 78 (1977). The particular question posed by this case is whether a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket.

Illinois law provides for a two-tiered appellate review process. Criminal defendants are tried in the local circuit courts, and although some criminal appeals (e. g., those in which the death penalty is imposed) are heard directly by the Supreme Court of Illinois, most criminal appeals are heard first by an intermediate appellate court, the Appellate Court of Illinois. Ill. Sup. Ct. Rule 603 (1998). A party may petition for leave to appeal a decision by the Appellate Court to the Illinois Supreme Court (with exceptions that are irrelevant here), but whether “such a petition will be granted is a matter of sound judicial discretion.” Rule 315(a). See also Rule 612(b) (providing that Rule 315 governs criminal, as well as civil, appeals). Rule 315 elaborates on the exercise of this discretion as follows:

“The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of reasons which will be considered: the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court’s supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed.” Rule 315(a).

Boerckel’s amended federal habeas petition raised three claims that he had not included in his petition for leave to appeal to the Illinois Supreme Court. To determine whether Boerckel was required to present those claims to the Illinois Supreme Court in order to exhaust his state remedies, we turn first to the language of the federal habeas statute. Section 2254(e) 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 presented.” Although this language could be read to effectively foreclose habeas review by requiring a state prisoner to invoke any possible avenue of state court review, we have never interpreted the exhaustion requirement in such a restrictive fashion. See Wilwording v. Swenson, 404 U. S. 249, 249-250 (1971) (per curiam). Thus, we have not interpreted the exhaustion doctrine to require prisoners to file repetitive petitions. See Brown v. Allen, 344 U. S. 443, 447 (1953) (holding that a prisoner does not have “to ask the state for collateral relief, based on the same evidence and issues already decided by direct review”). We have also held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past. See Wilwording v. Swenson, supra, at 249-250 (rejecting suggestion that state prisoner should have invoked “any of a number of possible alternatives to state habeas including ‘a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts,’ or perhaps other relief under the State Administrative Procedure Act”).

Section 2254(e) requires only that state state courts a fair opportunity to act on their claims. See Castille v. Peoples, supra, at 351; Picard v. Connor, 404 U. S. 270, 275-276 (1971). State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and proviole any necessary relief. Rose v. Lundy, 455 U. S. 509, 515-516 (1982); Darr v. Burford, 339 U. S. 200, 204 (1950). This rule of comity reduces friction between the state and federal court systems by avoiding the “unseemfliness]” of a federal district court’s overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance. Ibid. See also Duckworth v. Serrano, 454 U. S. 1, 3-4 (1981) (per curiam); Rose v. Lundy, supra, at 515-516.

the exhaustion doctrine is designed to give the state courts a Ml 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 Ml opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process. Here, Illinois’ established, normal appellate review procedure is a two-tiered system. Comity, in these circumstances, dictates that Boerckel use the State’s established appellate review procedures before he presents his claims to a federal court. Unlike the extraordinary procedures that we found unnecessary in Brown v. Allen and Wilwording v. Swenson, a petition for discretionary review in Illinois’ Supreme Court is a normal, simple, and established part of the State’s appellate review process. In the words of the statute, state prisoners have “the right... to raise” their claims through a petition for discretionary review in the State’s highest court. § 2254(e). Granted, as Boerckel contends, Brief for Respondent 16, he has no right to review in the Illinois Supreme Court, but he does have a “right ... to raise” his claims before that court. That is all § 2254(e) requires.

conclusion with two related arguments. His first argument is grounded in a stylized portrait of the Illinois appellate review process. According to Boerckel, Illinois’ appellate review procedures make the intermediate appellate courts the primary focus of the system; all routine claims of error are directed to those courts. The Illinois Supreme Court, by contrast, serves only to answer “questions of broad significance.” Id., at 4. Boer-ckel’s view of Illinois’ appellate review process derives from Ill. Sup. Ct. Rule 315(a) (1998). He reads this Rule to discourage the filing of petitions raising routine allegations of error and to direct litigants to present only those claims that meet the criteria defined by the Rule. Rule 315(a), by its own terms, however, does not “eontro[l]” or “measur[e]” the Illinois Supreme Court’s discretion. The Illinois Supreme Court is free to take eases that do not fall easily within the descriptions listed in the Rule. Moreover, even if we were to assume that the Rule discourages the filing of certain petitions, it is difficult to discern which eases fall into the “discouraged” category. In this case, for example, the parties disagree about whether, under the terms of Rule 315(a), Boerckel’s claims should have been presented to the Illinois Supreme Court. Compare Brief for Respondent 5 with Reply Brief for Petitioner 5.

The better reading of Rule 315(a) is that the Illinois Supreme Court has the opportunity to decide which cases it will consider on the merits. The fact that Illinois has adopted a discretionary review system may reflect little more than that there are resource constraints on the Illinois Supreme Court’s ability to hear every ease that is presented to it. It may be that, given the necessity of a discretionary review system, the Rule allows the Illinois Supreme Court to expend its limited resources on “questions of broad significance.” We cannot conclude from this Rule, however, that review in the Illinois Supreme Court is unavailable. By requiring state prisoners to give the Illinois Supreme Court the opportunity to resolve constitutional errors in the first instance, the rule we announce today serves the comity interests that drive the exhaustion doctrine.

Boerekel’s second argument is related to his first. According to Boerekel, because the Illinois Supreme Court has announced (through Rule 315(a)) that it does not want to hear routine allegations of error, a rule requiring state prisoners to file petitions for review with that court offends comity by inundating the Illinois Supreme Court with countless unwanted petitions. Brief for Respondent 8-14. See also 135 F. 3d, at 1201. This point, of course, turns on Boerekel’s interpretation of Rule 315(a), an interpretation that, as discussed above, we do not find persuasive. Nor is it clear that the rule we announce today will have the effect that Boerckel predicts. We do not know, for example, what percentage of Illinois state prisoners who eventually seek federal habeas relief decline, in the first instance, to seek review in the Illinois Supreme Court.

We acknowledge that the rule we announce today — requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State — has the potential to increase the number of filings in state supreme courts. We also recognize that this increased burden may be unwelcome in some state courts because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented to a federal habeas' court. See, e. g., In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S. C. 563, 471 S. E. 2d 454 (1990); see also State v. Sandon, 161 Ariz. 157, 777 P. 2d 220 (1989). Under these circumstances, Boerckel may be correct that the increased, unwelcome burden on state supreme courts disserves the comity interests underlying the exhaustion doctrine. In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has “the right under the law of the State to raise, by any available procedure, the question presented.” (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are “available” under state law. In sum, 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.

claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court. There is no dispute that this state court remedy — a petition for leave to appeal to the Illinois Supreme Court — is no longer available to Boerekel; the time for filing such a petition has long passed. See Ill. Sup. Ct. Rule 315(b). Thus, BoerckeFs failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. See Coleman v. Thompson, 501 U. S., at 731-732; Engle v. Isaac, 456 U. S. 107, 125— 126, n. 28 (1982).

We do not disagree with Justice scription of the law of exhaustion and procedural default. Specifically, we do not disagree with his description of the interplay of these two doctrines. Post, at 853-854 (dissenting opinion). As Justice Stevens notes, a prisoner could evade the exhaustion requirement — and thereby undercut the values that it serves — by “letting the time run” on state remedies. Post, at 853. To avoid this result, and thus “protect the integrity” of the federal exhaustion rule, ibid., we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i. e., whether he has fairly presented his claims to the state courts, see post, at 854. Our disagreement with Justice Stevens in this case turns on our differing answers to this last question: Whether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. Because we answer this question “no,” we conclude that Boerekel has proeedurally defaulted his claims. Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed.

It is so ordered.

Justice Souter,

concurring.

I agree with the Court’s strict holding that “the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable” for purposes of federal habeas exhaustion. Ante, at 848. I understand the Court to have left open the question (not directly implicated by this case) whether we should construe the exhaustion doctrine to force a 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. The Supreme Court of South Carolina, for example, has declared:

“[I]n all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Rather, when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.” In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S. C. 563, 564, 471 S. E. 2d 454 (1990).

The Court is clear that “nothing in the exhaustion doctrine requires] federal courts to ignore a state law or rule providing that a given procedure is not available.” Ante, at 847-848. Its citation of In re Exhaustion of State Remedies, for the proposition that the increased burden on state courts may be unwelcome, should not be read to suggest something more: that however plainly a State may speak its highest court must be subjected to constant applications for a form of discretionary review that the State wishes to reserve for truly extraordinary eases, or else be forced to eliminate that kind of discretionary review.

In construing the exhaustion requirement, . .. held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past.” Ante, at 844 (citing Wilwordmg v. Swenson, 404 U. S. 249, 249-250 (1971) (per curiam)). I understand that we leave open the possibility that a state prisoner is likewise free to skip a procedure even when a state court has occasionally employed it to provide relief, so long as the State has identified the procedure as outside the standard review process and has plainly said that it need not be sought for the purpose of exhaustion. It is not obvious that either comity or precedent requires otherwise.

Justice Stevens,

with whom Justice Ginsburg and Justice Breyer join, dissenting.

The Court’s opinion confuses two analytically distinct judge-made rules: (1) the timing rule, first announced in Ex parte Royall, 117 U. S. 241 (1886), and later codified at 28 U. S. C. § 2254(b)(1) (1994 ed., Supp. III), that requires a state prisoner to exhaust his state remedies before seeking a federal writ of habeas corpus; and (2) the waiver, or so-called procedural default, rule, applied in eases like Francis v. Henderson, 425 U. S. 536 (1976), that forecloses relief even when the petitioner has exhausted his remedies.

Properly phrased, the question not whether respondent’s claims were exhausted; they clearly were because no state remedy was available to him when he applied for the federal writ. The question is whether we should hold that his claims are procedurally defaulted and thereby place still another procedural hurdle in the path of applicants for federal relief who have given at least two state courts a fair opportunity to consider the merits of their constitutional claims. Before addressing that question, I shall briefly trace the history of the two separate doctrines that the Court has improperly commingled.

H-i

[TJhe problem of waiver is separate from the question whether a state prisoner has exhausted state remedies.” Engle v. Isaac, 456 U. S. 107, 125-126, n. 28 (1982). The question of exhaustion “refers only to remedies still available at the time of the federal petition,” ibid.; it requires federal courts to ask whether an applicant for federal relief could still get the relief he seeks in the state system. If the applicant currently has a state avenue available for raising his claims, a federal court, in the interest of comity, must generally abstain from intervening. This time-honored rule has developed over several decades of eases, always with the goal of respecting the States’ interest in passing first on their prisoners’ constitutional claims in order to act as the primary guarantor of those prisoners’ federal rights, and always separate and apart from rules of waiver.

Court reviewed a federal trial judge’s decision dismissing for want of jurisdiction a state prisoner’s application for a writ of habeas corpus. The prisoner, who was awaiting trial on charges that he had violated a Virginia statute, alleged that the statute was unconstitutional. This Court held that the trial court had jurisdiction, but nevertheless concluded that as a matter of comity the court had “discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted.” 117 U. S., at 253. Moreover, we held that, even if the prisoner was convicted, the court still had discretion to await a decision by the highest court of the State.

principle in Urquhart v. Brown, 205 U. S. 179 (1907). We stated that the “exceptional eases in which a Federal court or judge may sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the State are those of great urgency,” id., at 182, that involve the authority of the General Government. Apart from those rare eases presenting “exceptional circumstances of peculiar urgency,” see United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17 (1925), our early cases consistently applied the rule summarized in Ex parte Hawk, 821 U. S. 114, 116-117 (1944) (per curiam): “Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state eourts and in this Court by appeal or writ of certiorari, have been exhausted.”

The 1948 statute changed neither that rule nor its exclusive emphasis on timing. In that year, “Congress codified the exhaustion doctrine in 28 U. S. C. §2254, citing Ex parte Hawk as correctly stating the principle of exhaustion.” Rose v. Lundy, 455 U. S. 509, 516 (1982). The statute as enacted provided that an application for a writ by a state prisoner “shall not be granted” unless the applicant has exhausted his state remedies and, as the amended statute still does today, further provided that the applicant shall not be deemed to have done so “if he has the right under the law of the State to raise, by any available procedure, the question presented.” 62 Stat. 967; 28 U. S. C. § 2254(d) (1994 ed., Supp. III). We interpreted this statute in Rose as requiring “total exhaustion” — that is, as requiring federal courts to dismiss habeas petitions when any of the claims could still be brought in state court. 455 U. S., at 522. Conversely, of course, if no state procedure is available for raising any claims at the time a state prisoner applies for federal relief, the exhaustion requirement is satisfied.

To be sure, the fact that a prisoner has failed to invoke an available state procedure may provide the basis for a conclusion that he has waived a claim. But the exhaustion inquiry focuses entirely on the availability of state procedures at the time when the federal court is asked to entertain a habeas petition. Our decision in Moore v. Dempsey, 261 U. S. 86 (1923), which was cited with approval in Hawk, 321 U. S., at 118, illustrates this principle. In that ease, the Arkansas Supreme Court had rejected the petitioner’s jury discrimination claim because he had asserted it in a motion for new trial that “came too late.” 261 U. S., at 93. But, in holding that the Federal District Court should have entertained the claim, we obviously found that the state court’s refusal to hear the claim on procedural grounds did not mean that the claim had not been exhausted. When we implicitly overruled Moore several years later in Coleman v. Thompson, 501 U. S. 722 (1991), we did so only on waiver grounds. We explicitly noted that “[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.” Id., at 732.

Neither party argues that respondent currently has any state remedies available to him. The Court recognizes this circumstance, see ante, at 848, but still purports to analyze whether respondent has “exhausted [his] claims in state court.” Ante, at 839, 842. Since I do not believe that this ease raises an exhaustion issue, I turn to the subject of waiver.

II

In order to protect the integrity of our exhaustion rule, we have also crafted a separate waiver rule, or — as it is now commonly known — the procedural default doctrine. The purpose of this doctrine is to ensure that state prisoners not only become ineligible for state relief before raising their claims in federal court, but also that they give state courts a sufficient opportunity to decide those claims before doing so. If we allowed state prisoners to obtain federal review simply by letting the time run on adequate and accessible state remedies and then rushing into the federal system, the comity interests that animate the exhaustion rule could easily he thwarted. We therefore ask in federal habeas cases not only whether an applicant has exhausted his state remedies; we also ask how he has done so. This second inquiry forms the basis for our procedural default doctrine: A habeas petitioner who has concededly exhausted his state remedies must also have 'properly done so by giving the State a fair “opportunity to pass upon [his claims].” Darr v. Burford, 339 U. S. 200, 204 (1950). When a prisoner has deprived the state courts of such an opportunity, he has procedurally defaulted his claims and is ineligible for federal habeas relief save a showing of “cause and prejudice,” Murray v. Carrier, 477 U. S. 478, 485 (1986), or “ ‘a fundamental miscarriage of justice’ ” id., at 495.

In the first of our modern procedural cases, cis v. Henderson, 425 U. S. 536 (1976), we held that a state prisoner had waived his right to challenge the composition of his grand jury because he had failed to comply with a state law requiring that such a challenge be made in advance of trial. Our opinion did not even mention the obvious fact that the petitioner had exhausted his state remedies; rather, it stressed the importance of requiring “‘prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury/ ” Id., at 541.

Similarly, in Wainwright v. Sykes, held that the failure to object at trial to the admission of an inculpatory statement precluded a federal court from entertaining in a habeas proceeding the claim that the statement was involuntary. Our opinion correctly assumed that the petitioner had exhausted his state remedies. Id., at 80-81. Our conclusion that waiver was appropriate rested largely on the importance of treating a trial as “the ‘main event,’ so to speak,” and making the necessary record “with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding.” Id., at 88,90. In Engle v. Isaac, 456 U. S. 107 (1982), another ease in which the prisoner had unquestionably exhausted his state remedies, see id., at 125-126, n. 28, we held that a claimed constitutional defect in the trial judge’s instructions to the jury had been waived because the objection had not been raised at trial.

In Coleman, the Court extended our procedural default doctrine to state collateral appellate proceedings. The Court held that an inmate’s constitutional claims that he had advanced in a state habeas proceeding could not be entertained by a federal court because his appeal from the state trial court’s denial of collateral relief had been filed three days late. The Court, as I noted above, expressly stated that the exhaustion requirement had been satisfied because “there [were] no state remedies any longer ‘available’ to him.” 501 U. S., at 732. But because the State had consistently and strictly applied its timing deadlines for filing such appellate briefs in this and other eases, we concluded that Coleman had effectively deprived the State of a fair opportunity to pass on his claims and thus had procedurally defaulted them.

On the other hand, we have continually recognized, as the Court essentially does again today, ante, at 844, that a state prisoner need not have invoked every conceivably “available” state remedy in order to avoid procedural default. As far back as Brown v. Allen, 344 U. S. 443, 447 (1953), we held that even when a State offers postconvietion procedures, a prisoner does not have “to ask the state for collateral relief, based on the same evidence and issues already decided by direct review.” We later held that prisoners who have exhausted state habeas procedures need not have requested in state courts an injunction, a writ of prohibition, mandamus relief, a declaratory judgment, or relief under the State Administrative Procedure Act, even if those procedures were technically available. Wilwording v. Swenson, 404 U. S. 249 (1971) (per curiam). Federal courts also routinely and correctly hold that prisoners have exhausted their state remedies, and have not proeedurally defaulted their claims, when those prisoners had the right under state law to file a petition for rehearing from the last adverse state-court decision and failed to do so.

The presence or nothing about whether a prisoner has defaulted his constitutional claims. Exhaustion is purely a rule of timing and has played no role in the series of waiver decisions that foreclosed challenges to the composition of the grand jury, evi-dentiary rulings at trial, instructions to the jury, and finally, counsel’s inadvertent error in failing to file a timely appeal from a state court’s denial of collateral relief. The Court’s reasons for progressively expanding its procedural default doctrine were best explained in the cases that arose in a trial setting. By failing to raise their constitutional objections at trial, defendants truly impinge state courts’ ability to correct, or even to make a record regarding the effect of, legal errors. See Engle, 456 U. S., at 128; Wainwright, 433 U. S., at 90. Though I found that reasoning unsatisfactory in the state postconviction context, see Coleman, 501 U. S., at 758 (Blackmun, J., joined by Marshall and STEVENS, JJ., dissenting), at least the Court did not make the analytical error that pervades its opinion today. It did not assume that there was any necessary connection between the question of exhaustion and the question of procedural default.

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I come now to the real issue presented by this case: whether respondent’s failure to include all six of his current claims in his petition for leave to appeal to the Illinois Supreme Court should result in his proeedurally defaulting the three claims he did not raise.

The Court barely answers this question. Even though no one contends that respondent currently has any state remedy available to him, the Court concentrates instead on exhaustion. It states that respondent has not exhausted his claims because he had “‘the right... to raise’ [his] claims through a petition for discretionary review in the [Illinois Supreme Court].” Ante, at 845 (quoting 28 U. S. C. § 2254(c)). The Court adds to this that “the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable.” Ante, at 848. But, as the Court acknowledges almost immediately thereafter, the fact that “the time for filing [a petition to that court] has long passed” most assuredly makes such review unavailable in this ease. Ibid. The Court then resolves this ease’s core issue in a single sentence and two citations: “Thus, Boerckel’s failure to present three of his federal ha-beas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. Coleman v. Thompson, 501 U. S., at 731-732; Engle v. Isaac, 456 U. S. 107, 125-126, n. 28 (1982).” Ibid.

I disagree that respondent has proeedurally defaulted these three claims, and neither Engle nor Coleman suggests otherwise. The question we must ask is whether respondent has given the State a fair opportunity to pass on these claims. This Court has explained that the best way to determine the answer to this question is to “respect... state procedural rules” and to inquire whether the State has denied (or would deny) relief to the prisoner based on his failure to abide by any such rule. Coleman, 501 U. S., at 751. See also Engle, 456 U. S., at 129 (federal courts should avoid “undercutting the State’s ability to enforce its procedural rules”). Thus, we held in Engle that a prisoner defaults a claim by failing to follow a state rule requiring that it be raised at trial or on direct appeal. The Court in Coleman felt so strongly about “the important interests served by state procedural rules at every stage of the judicial process and the harm to the States that results when federal courts ignore these rules,” 501 U. S., at 749, that it imposed procedural default on a death-row inmate for filing his appellate brief in state posteonvietion review just three days after the State’s deadline.

Surely the Illinois Supreme Court’s discretionary review rule and respondent’s attempt to follow it are entitled to at least as much respect. 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.

Discretionary review rules not only- provide an effective tool for apportioning limited resources, but also foster more useful and effective advocacy. We have recognized on numerous occasions that the “process of 'winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail... is the hallmark of effective appellate advocacy.’ ” Smith v. Murray, 477 U. S. 527, 536 (1986) (quoting Jones v. Barnes, 468 U. S. 745, 751-752 (1983)). Ibis maxim is even more germane regarding petitions for certiorari. The most helpful and persuasive petitions for certiorari to this Court usually present only one or two issues, and spend a considerable amount of time explaining why those questions of law have sweeping importance and have divided or confused other courts. Given the page limitations that we impose, a litigant cannot write such a petition if he decides, or is required, to raise every claim that might possibly warrant reversal in his particular case.

The Court of Appeals for the Seventh Circuit found that these same factors animate the Illinois Supreme Court’s discretionary review rule. See 135 F. 3d 1194, 1200 (1998). It also pointed out that Illinois courts in state habeas proceedings dismiss claims like respondent’s on res judicata— not waiver — grounds once they have been pressed at trial and on direct appeal; it makes no difference whether the prisoner has raised the claim in a petition for review to the Illinois Supreme Court. Id., at 1199 (citing Gomez v. Acevedo, 106 F. 3d 192, 195-196 (CA7 1997) (which cites in turn People v. Coleman, 168 Ill. 2d 509, 522-523, 660 N. E. 2d 919, 927 (1995))). The Illinois courts, in other words, are prepared to stand behind the merits of their decisions regarding constitutional criminal procedure once a trial court and an appellate court have passed on them. No state procedural ground independently supports such decisions, so federal courts do not undercut Illinois’ procedural rules by reaching the merits of the constitutional claims resolved therein. See Coleman, 501 U. S., at 736-738.

We ordinarily defer to a federal court of appeals’ interpretation of state-law questions. See Bishop v. Wood, 426 U. S. 341, 346-347 (1976). The Court today nevertheless refuses to conclude that the Illinois rule “discourages the filing of certain petitions” (or even certain claims in petitions), and surmises instead that the rule does nothing more than announce the State Supreme Court’s desire to decide for itself which eases it will consider on the merits. Ante, at 846. This analysis strikes me as unsatisfactory. I would, consistent with the Seventh Circuit’s view, read the Illinois rule as dissuading the filing of fact-intensive claims of error that fail to present any issue of broad significance. I would also deduce from the rule that Illinois prisoners need not present their claims in discretionary review petitions before raising them in federal court.

The Court’s decision to the contrary is unwise. It will impose unnecessary burdens on habeas petitioners; it will delay the completion of litigation that is already more protracted than it should be; and, most ironically, it will undermine federalism by thwarting the interests of those state supreme courts that administer discretionary dockets. If, as the Court has repeatedly held, the purpose of our waiver doctrine is to cultivate comity by respecting state procedural rules, then I agree with the Court of Appeals that we should not create procedural obstacles when state prisoners follow those rules. In fact, I find these observations by the Court of Appeals far more persuasive than anything in today’s opinion:

“Boerckel provided Illinois state courts with an opportunity to review the matter in his direct appeal. Federal courts do not snatch claims from state courts when they review claims not included in discretionary petitions to state supreme courts. Our refusal to bar Boerckel from habeas review is a recognition of the inequity of penalizing a petitioner for following the requirements a state imposes on its second tier of appellate review. Allowing petitioners to exercise the discretion provided them by the states in selecting claims to petition for leave to appeal does not offend comity.
“We also note that requiring argue of their claims to the state supreme court would turn federalism on its head. If a state has chosen a system that asks petitioners to be selective in deciding which claims to raise in a petition for leave to appeal to the state’s highest court, we seriously question why this Court should require the petitioner to raise all claims to the state’s highest court if he hopes to request habeas review. The exhaustion requirement of § 2254 does not require such a result.
“Moreover, contrary decision will not ‘obliterate any opportunity for a state’s highest court to protect federally secured rights because it will leave state prisoners with little incentive to petition state supreme courts.’ Respondent Br. at 19. It is difficult to imagine that this holding will induce attorneys and defendants in state government custody to withhold an appropriate claim in a petition for leave to appeal to the state’s highest court, knowing that it cannot hurt and could only potentially help their cause. O’Sullivan’s argument assumes a remarkably risk-prone 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 ‘[treating 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 statement — 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 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 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 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 review except in unusual circumstances. See Ill. Sup. Ct. Rule 315(a) (1998); accord, e.g., Colo. Rule App. 49 (1998) (discretionary review granted “only when there are special and important reasons therefor”); Idaho Rule App. 118(b) (1999) (similar); Tenn. Rule App. Proc. 11(a) (1998) (similar). And Justice Stevens has explained how the majority’s view of the matter will force upon state supreme courts many petitions for review that fall outside the scope of their discretionary review and which those courts would likely prefer not to handle. Ante, at 858 (dissenting opinion).

cases actually reviewed by state courts with discretion over their dockets similarly suggests that States such as Illinois have no particular interest in requiring state prisoners to seek discretionary review in every case. In 1997, the latest year for which statistics are available, the Illinois Supreme Court granted review in only 33 of the 1,072 criminal petitions filed (3.1%). See memorandum from Carol R. Flango, National Center for State Courts, to Supreme Court Library (June 11,1999) (available in Clerk of Court’s case file). Nor is Illinois unique among state courts of last resort employing discretionary review. See ibid, (in 1997, ’Virginia’s Supreme Court granted 30 of 1,160 criminal petitions for review (2.6%); California granted 39 of 3,265 (1.2%); Georgia granted 11 of 189 (5.8%); Ohio granted 16 of 595 (2.7%); Connecticut granted 24 of 113 (21.2%); Louisiana granted 127 of 1,410 (9.0%); Minnesota granted 38 of 222 (17.1%); North Carolina granted 23 of 237 (9.7%); Tennessee granted 41 of 549 (7.5%); Texas granted 111 of 1,677 (6.6%)). On the majority’s view, these courts must now consider additional petitions for review of criminal eases, which petitions will contain many claims raised only to preserve a right to pursue those claims in federal habeas proceedings. The result will add to the burdens of already overburdened state courts and delay further a criminal process that is often criticized for too much delay. Cf. Hohn v. United States, 524 U. S. 236, 264 (1998) (Scalia, J., dissenting) (complaining of "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 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 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.


source: Caselaw Access Project

author: Justice Kennedy Justice Ginsburg,

license: Public Domain

text:
    AMOCO PRODUCTION CO., on behalf of itself and the class it represents v. SOUTHERN UTE INDIAN TRIBE et al.
    No. 98-830.
    Argued April 19, 1999
    Decided June 7, 1999

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Scalia, Souter, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, post, p. 880. Breyer, J., took no part in the consideration or decision of the case.

      Carter G. Phillips argued the cause for petitioner. With him on the briefs were Stephen B. Kinnaird, Charles L. Kaiser, Gary L. Paulson, Rebecca S. McGee, and David E. Brody.

      Thomas J. Davidson, Deputy Attorney General of Wyoming, argued the cause for the State of Montana et al. as amici curiae urging reversal. With him on the brief were Gay Woodhouse, Attorney General of Wyoming, and Drake D. Hill and Cynthia Lamb Harnett, Senior Assistant Attorneys General, joined by Jan Graham, Attorney General of Utah, Heidi Heitkamp, Attorney General of North Dakota, Joseph P. Mazurek, Attorney General of Montana, and Patricia A. Madrid, Attorney General of New Mexico.
    argued the cause for the federal respondents. With him on the brief were Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Elizabeth Ann Peterson, and John D. Leshy.

      Thomas H. Shipps argued the cause for respondent Southern Ute Indian Tribe. With him on the brief were Frank E. Maynes, Scott B. McElroy, Alice E. Walker, and Michael T McConnell.

      Briefs of amici curiae urging reversal were filed for Campbell County, Wyoming, by S. Thomas Throne; for the Coal Bed Methane Ad Hoc Committee et al. by L. Poe Leggette; for the Independent Petroleum Association of Mountain States by William B. Rapson and Mary Viviano Laitos; for La Plata County, Colorado, by Michael A Goldman, Jeffery P. Robbins, and Sheryl Rogers; and for the Mountain States Legal Foundation et al. by William Perry Pendley and Steven J. Lechner.

      filed a brief for the National Mining Association as amicus curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

Land patents issued pursuant to the Coal Lands Acts of 1909 and 1910 conveyed to the patentee the land and everything in it, except the “coal,” which was reserved to the United States. Coal Lands Act of 1909 (1909 Act), 35 Stat. 844, 80 U.S.C. §81; Coal Lands Act of 1910 (1910 Act), ch. 318, 36 Stat. 583, 30 U. S. C. §§ 88-85. The United States Court of Appeals for the Tenth Circuit determined that the reservation of ‘‘coal” includes gas found within the coal formation, commonly referred to as coalbed methane gas (CBM gas). See 151 F. 3d 1251, 1256 (1998) (en banc). We granted certiorari, 525 U. S. 1118 (1999), and now reverse.

I

During the second half of the 19th century, Congress sought to encourage the settlement of the West by providing land in fee simple absolute to homesteaders who entered and cultivated tracts of a designated size for a period of years. See, e. g., 1862 Homestead Act, 12 Stat. 392; 1877 Desert Land Act, ch. 107, 19 Stat. 377, as amended, 43 U. S. C. §§ 321-323. Public lands classified as valuable for coal were exempted from entry under the general land-grant statutes and instead were made available for purchase under the 1864 Coal Lands Act, ch. 205, § 1, 13 Stat. 343, and the 1873 Coal Lands Act, ch. 279, § 1, 17 Stat. 607, which set a maximum limit of 160 acres on individual entry and minimum prices of $10 to $20 an acre. Lands purchased under these early Coal Lands Acts — like lands patented under the Homestead Acts- — were conveyed to the entryman in fee simple absolute, with no reservation of any part of the coal or mineral estate to the United States. The coal mined from the lands purchased under the Coal Lands Acts and from other reserves fueled the Industrial Revolution.

At the turn struck the West. See Hearings on Coal Lands and Coal-Land Laws of the United States before the House Committee on Public Lands, 59th Cong., 2d Sess., 11-13 (1906) (testimony of Edgar E. Clark, Interstate Commerce Commissioner). At the same time, evidence of widespread fraud in the administration of federal coal lands came to light. Lacking the resources to make an independent assessment of the coal content of each individual land tract, the Department of the Interior in classifying public lands had relied for the most part on the affidavits of entrymen. Watt v. Western Nuclear, Inc., 462 U. S. 36, 48, and n. 9 (1983). Railroads and other coal interests had exploited the system to avoid paying for coal lands and to evade acreage restrictions by convincing individuals to falsify affidavits, acquire lands for homesteading, and then turn the land over to them. C. Mayer & G. Riley, Public Domain, Private Dominion 117-118 (1985).

In 1906, President Theodore Roosevelt responded to the perceived crisis by withdrawing 64 million acres of public land thought to contain coal from disposition under the public land laws. Western Nuclear, 462 U. S., at 48-49. As a result, even homesteaders who had entered and worked the land in good faith lost the opportunity to make it their own unless they could prove to the land office that the land was not valuable for coal.

President Roosevelt’s order outraged homesteaders and western interests, and Congress struggled for the next three years to construct a compromise that would reconcile the competing interests of protecting settlers and managing federal coal lands for the public good. President Roosevelt and others urged Congress to begin issuing limited patents that would sever the surface and mineral estates and allow for separate disposal of each. See id., at 49 (quoting Special Message to Congress, Jan. 22, 1909, 15 Messages and Papers of the Presidents 7266). Although various bills were introduced in Congress that would have severed the estates— some of which would have reserved "natural gas” as well as "coal” to the United States — none was enacted. See 41 Cong. Rec. 630 (1907) (bill by Rep. Volstead "reserving coal, lignite, petroleum, and natural-gas deposits from disposal... under existing land laws”); id., at 1483-1484 (bill by Sen. La Follette providing for the sale of surface lands, but “reserving from entry and sale the mineral rights to coal and other materials mined for fuel, oil, gas, or asphalt”); id., at 1788 (bill by Sen. Nelson “to provide for the reservation of the coal, lignite, oil, and natural gas in the public lands”).

Finally, Congress passed the Federal Government, for the first time, to issue limited land patents. In contrast to the broad reservations of mineral rights proposed in the failed bills, however, the 1909 Act provided for only a narrow reservation. The 1909 Act authorized issuance of patents to individuals who had already made good-faith agricultural entries onto tracts later identified as coal lands, but the issuance was to be subject to “a reservation to the United States of all coal in said lands, and the right to prospect for, mine, and remove the same.” 80 U. S. C. §81. The 1909 Act also permitted the patentee to “mine coal for use on the land for domestic purposes prior to the disposal by the United States of the coal deposit.” Ibid. A similar Act in 1910 opened the remaining coal lands to new entry under the homestead laws, subject to the same reservation of coal to the United States. 30 U. S. C. §§88-85.

Among the lands patented to 1910 Acts were former reservation lands of the Southern Ute Indian Tribe, which the Tribe had ceded to the United States in 1880 in return for certain allotted lands provided for their settlement. Act of June 15,1880, eh. 223, 21 Stat. 199. In 1938, the United States restored to the Tribe, in trust, title to the ceded reservation lands still owned by the United States, including the reserved coal in lands patented under the 1909 and 1910 Acts. As a result, the Tribe now has equitable title to the coal in lands within its reservation settled by homesteaders under the 1909 and 1910 Acts.

We are advised that over 20 million acres were patented under the 1909 and 1910 Acts and that the lands— including those lands in which the Tribe owns the coal — contain large quantities of CBM gas. Brief for Montana et al. as Amici Curiae 2. At the time the Acts were passed, CBM gas had long been considered a dangerous waste produet of coal mining. By the 1970’s, however, it was apparent that CBM gas could be a significant energy resource, see Duel & Kimm, Coalbed Gas: A Source of Natural Gas, Oil & Gas J., June 16, 1975, p. 47, and, in the shadow of the Arab oil embargo, the Federal Government began to encourage the immediate production of CBM gas through grants, see 42 U. S. C. §§ 5901-5915 (1994 ed. and Supp. Ill), and substantial tax credits, see 26 U. S. C. §29 (1994 ed. and Supp. III).

gas was hampered, however, by uncertainty over its ownership. “In order to expedite the development of this energy source,” the Solicitor of the Department of the Interior issued a 1981 opinion concluding that the reservation of coal to the United States in the 1909 and 1910 Acts did not encompass CBM gas. See Ownership of and Right to Extract Coalbed Gas in Federal Coal Deposits, 88 I. D. 538, 539. In reliance on the Solicitor’s 1981 opinion, oil and gas companies entered into leases to produce CBM gas with individual landowners holding title under 1909 and 1910 Act patents to some 200,000 acres in which the Tribe owns the coal.

In 1991, the Tribe brought suit in Federal District Court against petitioners, the royalty owners and producers under the oil and gas leases covering that land, and the federal agencies and officials responsible for the administration of lands held in trust for the Tribe. The Tribe sought, inter alia, a declaration that Congress’ reservation of coal in the 1909 and 1910 Acts extended to CBM gas, so that the Tribe— not the successors in interest of the land patentees — owned the CBM gas.

The District Court granted summary judgment for the defendants, holding that the plain meaning of “coal” is the “solid rock substance” used as fuel, which does not include CBM gas. 874 F. Supp. 1142, 1154 (Colo. 1995). On appeal, a panel of the Court of Appeals reversed. 119 F. 3d 816, 819 (CA10 1997). The court then granted rehearing en banc on the question whether the term “coal” in the 1909 and 1910 Acts “unambiguously excludes or includes CBM.” 151 F. 3d, at 1256. Over a dissenting opinion by Judge Tacha, joined by two other judges, the en banc court agreed with the panel. Ibid. The court held that the term “coal” was ambiguous. Ibid. It invoked the interpretive canon that ambiguities in land grants should be resolved in favor of the sovereign and concluded that the coal reservation encompassed CBM gas. Ibid.

The United the rehearing en bane. Instead, it filed a supplemental brief explaining that the Solicitor of the Interior was reconsidering the 1981 Solicitor’s opinion in light of the panel’s decision. Brief for Federal Respondents 14, n. 8. On the day the federal respondents’ response to petitioners’ certio-rari petition was due, see id., at 47, n. 37, the Solicitor of the Interior withdrew the 1981 opinion in a one-line order, see Addendum to Brief for Federal Respondents in Opposition la. The federal respondents now support the Tribe’s position that CBM gas is coal reserved by the 1909 and 1910 Acts.

II

We begin our discussion as the parties did, with a brief overview of the chemistry and composition of coal. Coal is a heterogeneous, nonerystalline sedimentary rock composed primarily of carbonaceous materials. See, e. g., Gorbaty & Larsen, Coal Structure and Reactivity, in 3 Encyclopedia of Physical Science and Technology 437 (R. Meyers ed. 2d ed. 1992). It is formed over millions of years from decaying plant material that settles on the bottom of swamps and is converted by microbiological processes into peat. D. Van Krevelen, Coal 90 (3d ed. 1993). Over time, the resulting peat beds are buried by sedimentary deposits. Id., at 91. As the beds sink deeper and deeper into the earth’s crust, the peat is transformed by chemical reactions which increase the carbon content of the fossilized plant material. Ibid. The process in which peat transforms into coal is referred to as eoalification. Ibid.

The eoalification process generates methane and other gases. R. Rogers, Coalbed Methane: Principles and Practice 148 (1994). Because coal is porous, some of that gas is retained in the coal. CBM gas exists in the coal in three basic states: as free gas; as gas dissolved in the water in coal; and as gas “adsorped” on the solid surface of the coal, that is, held to the surface by weak forces called van der Waals forces. Id., at 16-17,117. These are the same three states or conditions in which gas is stored in other rock formations. Because of the large surface area of coal pores, however, a much higher proportion of the gas is adsorped on the surface of coal than is adsorped in other rock. Id., at 16-17. When pressure on the coalbed is decreased, the gas in the coal formation escapes. As a result, CBM gas is released from coal as the coal is mined and brought to the surface.

H-Í H-< H-i

While the modern science of coal provides a useful backdrop for our discussion and is consistent with our ultimate disposition, it does not answer the question presented to us. The question is not whether, given what scientists know today, it makes sense to regard CBM gas as a constituent of coal but whether Congress so regarded it in 1909 and 1910. In interpreting statutory mineral reservations like the one at issue here, we have emphasized that Congress “was dealing with a practical subject in a practical way” and that it intended the terms of the reservation to be understood in “their ordinary and-popular sense.” Burke v. Southern Pacific R. Co., 234 U. S. 669, 679 (1914) (rejecting “scientific test” for determining whether a reservation of “mineral lands” included “petroleum lands”); see also Perrin v. United States, 444 U. S. 37, 42 (1979) (“[Ujnless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” at the time Congress enacted the statute). We are persuaded that the common conception of coal at the time Congress passed the 1909 and 1910 Acts was the solid rock substance that was the country’s primary energy resource.

A

At the time the Acts were passed, most dictionaries defined coal as the solid fuel resource. For example, one contemporary dictionary defined coal as a “solid and more or less distinctly stratified mineral, varying in color from dark-brown to black, brittle, combustible, and used as fuel, not fusible without decomposition and very insoluble.” 2 Century Dictionary and Cyclopedia 1067 (1906). See also American Dictionary of the English Language 244 (N. Webster 1889) (defining “coal” as a “black, or brownish black, solid, combustible substance, consisting, like charcoal, mainly of carbon, but more compact”); 2 New English Dictionary on Historical Principles 549 (J. Murray ed. 1893) (defining coal as a “mineral, solid, hard, opaque, black, or blackish, found in seams or strata in the earth, and largely used as fuel”); Webster’s New International Dictionary of the English Language 424 (W. Harris & F. Allen eds. 1916) (defining coal as a “black, or brownish black, solid, combustible mineral substance”).

In contrast, dictionaries of the day defined CBM gas— then called “marsh gas,” “methane,” or “fire-damp” — as a distinct substance, a gas “contained in” or “given off by” coal, but not as coal itself. See, e. g., 3 Century Dictionary and Cyclopedia 2229 (1906) (defining “fire-damp” as “[t]he gas contained in coal, often given off by it in large quantities, and exploding, on ignition, when mixed with atmospheric air”; noting that “[f]ire-damp is a source of great danger to life in coal-mines”).

As these dictionary definitions suggest, the common understanding of coal in 1909 and 1910 would not have encompassed CBM gas, both because it is a gas rather than a solid mineral and because it was understood as a distinct substance that escaped from coal as the coal was mined, rather than as a part of the coal itself.

B

As a practical matter, moreover, it is clear that, by reserving eoal in the 1909 and 1910 Act patents, Congress intended to reserve only the solid rock fuel that was mined, shipped throughout the country, and then burned to power the Nation’s railroads, ships, and factories. Cf. Leo Sheep Co. v. United States, 440 U. S. 668, 682 (1979) (public land statutes should be interpreted in light of “the condition of the country when the acts were passed” (internal quotation marks omitted)). In contrast to natural gas, which was not yet an important source of fuel at the turn of the century, coal was the primary energy for the Industrial Revolution. See, e.g., D. Yergin, The Prize 548 (1991). See also Brief for Federal Respondents 30 (recognizing that the three primary sources of energy in the United States at the turn of the century were eoal, oil, and wood, and that natural gas — even from conventional reservoirs — was not yet an important energy resource).

As the history recounted in Part I, supra, establishes, Congress passed the 1909 and 1910 Acts to address concerns over the short supply, mismanagement, and fraudulent acquisition of this solid rock fuel resource. Rejecting broader proposals, Congress chose a narrow reservation of the resource that would address the exigencies of the crisis at hand without unduly burdening the rights of homesteaders or impeding the settlement of the West.

viewed CBM gas not as part of the solid fuel resource it was attempting to conserve and manage but as a dangerous waste product, which escaped from coal as the coal was mined. Congress was well aware by 1909 that the natural gas found in coal formations was released during coal mining and posed a serious threat to mine safety. Explosions in coal mines sparked by CBM gas occurred with distressing frequency in the late 19th and early 20th centuries. Brief for National Mining Association as Amicus Curiae 7. Congress was also well aware that the CBM gas needed to be vented to the greatest extent possible. Almost 20 years prior to the passage of the 1909 and 1910 Acts, Congress had enacted the first federal coalmine-safety law which, among other provisions, prescribed specific ventilation standards for coal mines of a certain depth “so as to dilute and render harmless . .. the noxious or poisonous gases.” 1891 Territorial Mine Inspection Act, §6, 26 Stat. 1105. See also 3 Century Dictionary and Cyclopedia, supra, at 2229 (explaining the dangers associated with fire-damp).

That CBM gas was a which escaped from coal, rather than part of the valuable coal fuel itself, is also confirmed by the fact that coal companies venting the gas to prevent its accumulation in the mines made no attempt to capture or preserve it. The more gas that escaped from the coal once it was brought to the surface, the better it was for the mining companies because it decreased the risk of a dangerous gas buildup during transport and storage. Cf. E. Moore, Coal: Its Properties, Analysis, Classification, Geology, Extraction, Uses and Distribution 308 (1922) (noting that the presence of gases such as methane in the coal increases the risk of spontaneous combustion of the coal during storage).

(The fact that gas was from coal distinguishes it from the “producer gas” that was generated from coal in the 1800’s. Brief for Federal Respondents 30. Producer gas was produced by “destructive distillation, that is, by heating the coal to a temperature where it decomposed chemically.” App. 531 (reproducing Perry, The Gasification of Coal, Scientific American 230, (Mar. 1974)). The natural escape of CBM gas from the coal also distinguishes CBM gas from other “volatile matter,” expelled when coal is heated, or liquid “coal extracts,” which “can be extracted through the use of appropriate solvents.” Brief for Federal Respondents 26-27. The federal respondents’ expressed concern that if the coal reservation does not encompass CBM gas it does not encompass these “components” of coal, see ibid., is unfounded.)

There is some evidence of limited and sporadic exploitation of CBM gas as a fuel prior to the passage of the 1909 and 1910 Acts. See, e. g., E. Craig & M. Myers, Ownership of Methane Gas in Coalbeds, 24 Rocky Mt. Min. L. Inst. 767, 768 (1978) (“As early as 1746, methane was being drained from an English coal mine through pipes and used for heating”); see also United States Steel Corp. v. Hoge, 503 Pa. 140, 146, 468 A. 2d 1380, 1383 (1983) (noting that as early as 1900, “certain wells were drilled [into coalbeds in Pennsylvania, which] produced coalbed gas”). It seems unlikely, though, that Congress considered this limited drilling for CBM gas. To the extent Congress had an awareness of it, there is every reason to think it viewed the extraction of CBM gas as drilling for natural gas, not mining coal.

That distinction is significant because the question before us is not whether Congress would have thought that CBM gas had some fuel value, but whether Congress considered it part of the coal fuel. When it enacted the 1909 and 1910 Acts, Congress did not reserve all minerals or energy resources in the lands. It reserved only coal, and then only in lands that were specifically identified as valuable for coal. It chose not to reserve oil, natural gas, or any other known or potential energy resources.

The limited nature of the 1909 and 1910 Act reservations is confirmed by subsequent congressional enactments. When Congress wanted to reserve gas rights that might yield valuable fuel, it did so in explicit terms. In 1912, for example, Congress enacted a statute that reserved “oil and gas” in Utah lands. Act of Aug. 24, 1912, 37 Stat. 496. In addition, both the 1912 Act and a later Act passed in 1914 continued the tradition begun in the 1909 and 1910 Acts of reserving only those minerals enumerated in the statute. See ibid.; Act of July 17, 1914, 38 Stat. 509, as amended, 30 U. S. C. §§ 121-123 (providing that “[l]ands withdrawn or classified as phosphate, nitrate, potash, oil, gas, or asphaltic minerals, or which are valuable for those deposits,” eould be patented, subject to a reservation to the United States of “the deposits on account of which the lands so patented were withdrawn or classified or reported as valuable”). It was not until 1916 that Congress passed a public lands Act containing a general reservation of valuable minerals in the lands. See Stock-Raising Homestead Act, ch. 9,39 Stat. 862, as amended, 43 U. S. C. §299 (reserving “all the coal and other minerals in the lands” in all lands patented under the Act). See also Western Nuclear, 462 U. S., at 49 (“Unlike the preceding statutes containing mineral reservations, the [1916 Stock-Raising Homestead Act] was not limited to lands classified as mineral in character, and it did not reserve only specifically identified minerals”).

C

Respondents contend that Congress did not reserve the solid coal but convey the CBM gas because the resulting split estate would be impractical and would make mining the coal difficult because the miners would have to capture and preserve the CBM gas that escaped during mining. See, e. g., Brief for Respondent Southern Ute Indian Tribe 46; see also id., at 25-26 (emphasizing that the reservation includes the right to “mine” the coal, indicating that “Congress reserved all rights needed to develop the underlying coal” including the right to vent CBM gas during mining). We doubt Congress would have given much consideration to these problems, however, because — as noted above — it does not appear to have given consideration to the possibility that CBM gas would one day be a profitable energy source developed on a large scale.

It may be true, nonetheless, that the right to mine the coal implies the right to release gas incident to coal mining where it is necessary and reasonable to do so. The right to dissipate the CBM gas where reasonable and necessary to mine the coal does not, however, imply the ownership of the gas in the first instance. Rather, it simply reflects the established common-law right of the owner of one mineral estate to use, and even damage, a neighboring estate as necessary and reasonable to the extraction of his own minerals. See, e. g., Williams v. Gibson, 84 Ala. 228, 4 So. 350 (1888); Rocky Mountain Mineral Law Foundation, 6 American Law of Mining §200.04 (2d ed. 1997). Given that split estates were already common at the time the 1909 and 1910 Acts were passed, see, e. g., Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 A. 597 (1893), and that the common law has proved adequate to the task of resolving the resulting conflicts between estates, there is no reason to think that the prospect of a split estate would have deterred Congress from reserving only the coal.

Were a case to arise in which there are two commercially valuable estates and one is to be damaged in the course of extracting, the other, a dispute might result, but it could be resolved in the ordinary course of negotiation or adjudication. That is not the issue before us, however. The question is one of ownership, not of damage or injury.

In all events, even were we to construe the coal reservation to encompass CBM gas, a split estate would result. The United States concedes (and the Tribe does not dispute) that once the gas originating in the coal formation migrates to surrounding rock formations it belongs to the natural gas, rather than the coal, estate. See Brief for Federal Respondents 35; Brief for Respondent Southern Ute Indian Tribe 3, n. 4. Natural gas from other sources may also exist in the lands at issue. Including the CBM gas in the coal reservation would, therefore, create a split gas estate that would be at least as difficult to administer as a split coal/CBM gas estate. If CBM gas were reserved with the coal estate, those developing the natural gas resources in the land would have to allocate the gas between the natural gas and coal estates based on some assessment of how much had migrated outside the coal itself. There is no reason to think Congress would have been more concerned about the creation of a split coal/CBM gas estate than the creation of a split gas estate.

Because we conclude that the most natural interpretation of “coal” as used in the 1909 and 1910 Acts does not encompass CBM gas, we need not consider the applicability of the canon that ambiguities in land grants are construed in favor of the sovereign or the competing canons relied on by petitioners.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Breyer took no part in the consideration or decision of this case.

Justice Ginsburg,

dissenting.

I would affirm the judgment below substantially for the reasons stated by the Court of Appeals and the federal respondents. See 151 F. 3d 1251, 1256-1267 (CA10 1998) (en banc); Brief for Federal Respondents 14-16. As the Court recognizes, in 1909 and 1910 coalbed methane gas (CBM) was a liability. See ante, at 870-871,875-876. Congress did not contemplate that the surface owner would be responsible for it. More likely, Congress would have assumed that the coal owner had dominion over, and attendant responsibility for, CBM. I do not find it clear that Congress understood dominion would shift if and when the liability became an asset. I would therefore apply the canon that ambiguities in land grants are construed in favor of the sovereign. See Watt v. Western Nuclear, Inc., 462 U. S. 36, 59 (1983) (noting “established rule that land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it” (internal quotation marks omitted)).


text:
    March 3, 1999
    No. 98-1412 (A-735).
    Stewart, Director, Arizona Department of Corrections, et al. v. LaGrand.
   C. A. 9th Cir. Application to lift the restraining order entered by the United States Court of Appeals for the Ninth Circuit on March 3, 1999, presented to Justice O’Connor, and by her referred to the Court, granted. Certiorari granted, and judgment summarily reversed. A per curiam opinion will follow [ante, p. 115].


author: Justice Breyer,

text:
    No. 98-8343 (A-734).
    LaGrand v. Arizona.
   Sup. Ct. Ariz. Application for stay of execution of sentence of death, presented to Justice O’Connor, and by her referred to the Court, denied. Certiorari denied.

Justice Breyer,

with whom Justice Stevens joins,

dissenting.

For the reasons set forth in my opinion dissenting from the denial of a stay in Federal Republic of Germany v. United States, ante, p. 111, and because this petition for certiorari in part raises similar issues, I would grant a stay of execution.


text:
    March 8, 1999
    No. 98-836.
    No. 98-1011.
    Immigration and Naturalization Service et al. v. Magana-Pizano; and Magana-Pizano v. Immigration and Naturalization Service et al.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (1999). Reported below: 152 F. 3d 1213 and 159 F. 3d 1217.


text:
    No. A-584.
    Monroe v. Bading, Sheriff, Caldwell County.
   Application for certificate of appealability, addressed to Justice Ginsburg and referred to the Court, denied.


text:
    No. D-2013.
    In re Disbarment of Rehberger.
    [For earlier order herein, see 525 U. S. 998.]
   Disbarment entered.


text:
    No. D-2049.
    In re Disbarment of McGee.
   Charles A. McGee, of Fort Payne, Ala., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2050.
    In re Disbarment of Phillips.
   Edward Hamilton Phillips, of Chicago, Ill., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-2051.
    In re Disbarment of Burgess.
   John All Burgess, of South Burlington, Vt., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 98-231.
    Grupo Mexicano de Desarrollo, S. A., et al. v. Alliance Bond Fund, Inc., et al.
   C. A. 2d Cir. [Certiorari granted, 525 U. S. 1015.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 98-387.
    Greater New Orleans Broadcasting Assn., Inc., et al. v. United States et al.
   C. A. 5th Cir. [Certiorari granted, 525 U. S. 1097.] Motion of petitioners to dispense with printing the joint appendix granted.


text:
    No. 98-436.
    Alden et al. v. Maine.
   Sup. Jud. Ct. Me. [Certiorari granted, 525 U. S. 981.] Motion of the Solicitor General for divided argument granted.


text:
    No. 98-7547.
    No. 98-7548.
    No. 98-7550.
    No. 98-7551.
    Cross v. Pelican Bay State Prison et al. Cross v. Cambra, Warden. Cross v. Pelican Bay State Prison et al. Cross v. Pelican Bay State Prison et al.
   C. A. 9th Cir.;

C. A. 9th Cir.;

C. A. 9th Cir.; and

C. A. 9th Cir. Motions of petitioner for leave to proceed informa pauperis denied. See this Court’s Rule 39.8. Petitioner is allowed until March 29, 1999, within which to pay the docketing fees required by Rule 38(a) and to submit petitions in compliance with Rule 33.1 of the Rules of this Court.


text:
    No. 98-8092.
    In re Richards.
   Petition for writ of habeas corpus denied.


text:
    No. 98-896.
    Rotella v. Wood et al.
   C. A. 5th Cir. Cer-tiorari granted.


text:
    No. 98-1037.
    Smith, Warden v. Robbins.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 97-526.
    Ramallo v. Reno, Attorney General, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 97-9553.
    Williams v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-512.
    Davis et al. v. Bush, Governor of Florida, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 98-704.
    Sommerdyke Estate v. City of Kentwood.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 98-724.
    Cunningham v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 98-730.
    Reno, Attorney General, et al. v. Walters et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-751.
    Hecla Mining Co. v. Washington Wilderness Coalition et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-764.
    Morton Community Unit School District No. 709 v. J. M., A Minor, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 98-835.
    Reno, Attorney General, et al. v. Pereira Goncalves.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 98-932.
    LaRosa et ux. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-959.
    Precision Cutting Services, Inc. v. King Ocean Central America, S. A.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 98-970.
    Ridder et al. v. Office of Thrift Supervision et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 98-996.
    No. 98-1160.
    Reno, Attorney General, et al. v. Navas et al.; and Navas et al. v. Reno, Attorney et al.
   C. A. 2d Cir. Certiorari denied. Reported below: 157 below: 157 F. 3d 106.


text:
    No. 98-1007.
    Wallin v. Minnesota Department of Corrections et. al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-1025.
    No. 98-1074.
    Edwards et al. v. City of Santa Barbara; and City of Santa Barbara v. Edwards et al.
   C. A. 9th Cir. Certiorari denied. Reported below: 150 F. 3d 1213.


text:
    No. 98-1055.
    Edwards v. Clarke.
   Sup. Ct. R. I. Certiorari denied.


text:
    No. 98-1063.
    No. 98-1228.
    Shade v. Great Lakes Dredge & Dock Co.; and Great Lakes Dredge & Dock Co. v. Shade.
   C. A. 3d Cir. Certiorari denied. Reported below: 154 F. 3d 143.


text:
    No. 98-1064.
    American Academy of Pain Management et al. v. Joseph, Executive Director, Medical Board of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-1065.
    Indianapolis Power & Light Co. v. Pennsylvania Public Utility Commission et al.
   Commw. Ct. Pa. Certiorari denied.


text:
    No. 98-1079.
    Halicki v. Louisiana Casino Cruises, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-1085.
    Gumbhir v. Curators of the University of Missouri et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-1091.
    Time Warner Entertainment Co., L. P., et al. v. Byers et al.
   Ct. App. La., 1st Cir. Certiorari denied.


text:
    No. 98-1103.
    Hazzard v. Howard et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-1104.
    Davidson v. Hubbard et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 98-1108.
    Schachter v. Schachter.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 98-1119.
    Jones v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 98-1123.
    Carmona v. Department of the Treasury.
   Treasury. C. A. Fed. Cir. Certiorari denied.


text:
    No. 98-1126.
    Cass v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 98-1136.
    Easley et al. v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 98-1141.
    de Larracoechea Azumendi v. Pan American World Airways, Inc., et al.
   Dist. Ct. App. Fla., 3d Dist. Cer-tiorari denied.


text:
    No. 98-1150.
    Berry et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-1162.
    Sumrell v. Virginia.
   Sup. Ct. Va. Certio-rari denied.


text:
    No. 98-1184.
    Hosey v. Hosey.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 98-1199.
    Stavroff v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 98-1200.
    Zee, Plan Administrator of Lighting World, Inc., Employees Profit-Sharing Plan, et al. v. Belfer, Executrix of the Estate of Belfer, Deceased.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-1208.
    Beyena v. Henderson, Postmaster General.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-1214.
    Punke v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 98-1221.
    No. 98-1222.
    In re Murphy; and Murphy v. Planned Parenthood of Greater Iowa, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-1233.
    Chavis v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 98-1249.
    Cowhig v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 98-1254.
    Peeler v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 98-1259.
    Pattilo v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-1263.
    Estate of Rinaldi, Deceased v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 98-7182.
    Bolin v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 98-7437.
    Soltesz v. Diversitec Image Technology, Inc., et al.
   Ct. App. Ohio, Lucas County. Certiorari denied.


text:
    No. 98-7438.
    Rodriguez v. Cambra, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7451.
    Reynolds v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 98-7452.
    Hernandez v. Ayers, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7453.
    Rhoden v. Campbell, Commissioner, Tennessee Department of Correction, et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 98-7459.
    Baba v. Silverman et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 98-7460.
    Baba v. Gi Ung Kim et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 98-7462.
    Scott v. Mayle, Warden.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 98-7463.
    Scarbrough v. Aetna Life Insurance Co.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 98-7476.
    MacPhee v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 98-7477.
    Majors v. California.
   Sup. Ct. Cal. Certio-rari denied.


text:
    No. 98-7487.
    Kinney v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 98-7490.
    Oliver v. Kolody.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-7491.
    Jackson v. Whittle et al.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 98-7500.
    McVeigh v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 98-7505.
    Pennington v. Oglesby et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-7506.
    Pennington v. Huckabee, Governor of Arkansas, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-7511.
    Daddazio v. New York.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 98-7514.
    Ford v. Hubbard, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7515.
    Gonzalez v. Wallis et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-7518.
    DeBardeleben v. Hedrick, Warden, et al. (two judgments).
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-7521.
    Shroff v. Fabulous Vacations.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7522.
    Rodriguez v. Onwards Inc. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-7526.
    Browning v. Matusinka, Judge, Superior Court of Los Angeles County-Southwest District.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7528.
    Cousino v. Nowicki et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 98-7538.
    Cureton v. Alford, Superintendent, Gulf Correctional Institution.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 98-7542.
    White v. Colorado et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 98-7546.
    Butler v. Grigas, Warden.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 98-7549.
    Cross v. Ayers, Warden.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 98-7593.
    Jackson v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 98-7594.
    Johnson v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 98-7673.
    Thurman v. Kentucky.
   Sup. Ct. Ky. Certio-rari denied.


text:
    No. 98-7678.
    Armstrong v. Illinois.
   Sup. Ct. Ill. Certio-rari denied.


text:
    No. 98-7687.
    Daugherty v. Page, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 98-7748.
    Esparza v. Trijjilo.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7801.
    Sowers v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 98-7802.
    Stewart v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-7803.
    Barr v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-7847.
    Jones v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 98-7849.
    Wilson v. Corcoran, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-7856.
    Bourgeois v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7859.
    Caldwell v. Maloney, Commissioner, Massachusetts Department of Correction.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 98-7863.
    Dennis et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7865.
    Frank v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-7877.
    Williams v. Morton, Administrator, New Jersey State Prison, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-7882.
    Washington v. South Carolina et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-7884.
    Jordan v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 98-7885.
    Lidman v. Department of State et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-7893.
    No. 98-8035.
    Stephens v. United States; and Woods v. United States.
   C. A. 11th Cir. Certiorari denied. Reported below: 162 F. 3d 1177


text:
    No. 98-7899.
    Norris v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-7907.
    Skipper v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-7935.
    Deaton v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 98-7941.
    Williams v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 98-7956.
    Muhammad v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 98-7957.
    Murdock v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 98-7961.
    Macon v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-7962.
    Marsh v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 98-7963.
    Martin v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-7966.
    Carmona v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7968.
    Mays v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 98-7969.
    Burch v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 98-7980.
    Robinson v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 98-7984.
    South v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 98-7988.
    Delgado-Munoz v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 98-7991.
    Fitzgerald v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-7995.
    Hao Hoang Ho v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-7997.
    Devorkin v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 98-7998.
    Raney v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 98-8001.
    Rich v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-8003.
    Landon v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 98-8005.
    Lyons v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 98-8009.
    Santoyo v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 98-8010.
    Rashid v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 98-8021.
    Bounds v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-8029.
    Saunders v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-8031.
    Clay v. United States.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 98-8032.
    Cooper v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 98-8036.
    Talley v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 98-8037.
    Watts v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 98-8038.
    Thomas v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-8040.
    Wiggins v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 98-684.
    No. 98-706.
    Idaho v. United States; and Hoagland et al. v. United States.
   Sup. Ct. Idaho. Certiorari denied.

Justice O’Connor would grant cer-tiorari.

Reported below: 131 Idaho 468, 959 P. 2d 449.


text:
    No. 98-983.
    Lacks v. Ferguson-Florissant Reorganized School District R-2.
   C. A. 8th Cir. Motion of Pen American Center et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 98-6177.
    No. 98-6178.
    No. 98-6518.
    No. 98-6599.
    No. 98-6605.
    No. 98-6720.
    No. 98-6873.
    No. 98-7011.
    No. 98-7044.
    Montford v. Metropolitan Dade County et al., Montford v. Metropolitan Dade County Police Department et al., Baldwin v. Superior Court of the District of Columbia, Boulineau v. Wozniak et al., McClanahan v. Wellmore Coal Corp., Peck v. Chafin, Judge, Circuit Court of West Virginia, Wayne County, et al., West v. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Sumter v. National Labor Relations Board, Thomas v. Department of the Navy,
   525 U. S. 1022;

525 U. S. 1022;

525 U. S. 1057;

525 U. S. 1076;

525 U. S. 1045;

525 U. S. 1078;

525 U. S. 1082;

525 U. S. 1111; and

525 U. S. 1111. Petitions for rehearing denied.


text:
    March 9, 1999
    No. 98-8405 (A-757).
    In re Roberts.
   Application for stay of execution of sentence of death, presented to Justice Thomas, and by him referred to the Court, denied. Petition for writ of habeas corpus denied.


text:
    No. 98-8295 (A-724).
    Quesinberry v. Taylor, Warden.
   C. A. 4th Cir. Application for stay of execution of sentence of death and for leave to file amended petition for writ of certiorari, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied. Justice Stevens and Justice Ginsburg would grant the application for stay of execution and for leave to file amended petition for writ of certiorari.


text:
    No. 98-8404 (A-756).
    Roberts v. Bowersox, Superintendent, Potosi Correctional Center.
   Sup. Ct. Mo. Application for stay of execution of sentence of death, presented to Justice Thomas, and by him referred to the Court, denied. Certiorari denied.


text:
    March 10, 1999
    No. 98-739.
    Louisiana et al. v. Ussery.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 46.1.


text:
    No. 98-7497.
    McCray v. United States.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 46.


text:
    March 16, 1999
    No. 98-8476 (A-768).
    Kokoraleis v. Illinois.
   Sup. Ct. Ill. Application for stay of execution of sentence of death, presented to Justice Stevens, and by him referred to the Court, denied. Certiorari denied.


text:
    MARCH 19, 1999
    No. 98-8046.
    In re Rector.
   Petition for writ of habeas corpus denied.


text:
    March 22, 1999
    No. A-648 (98-1441).
    Roe, Warden v. Flores-Ortega.
   C. A. 9th Cir. Application for stay, addressed to Justice Kennedy and referred to the Court, denied.


text:
    No. D-2026.
    In re Disbarment of Freydl.
   Thomas Patrick Freydl, of Bloomfield Hills, Mich., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The rule to show cause, issued on January 19, 1999 [525 U. S. 1100], is discharged.