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College of Law, Ohio State University




The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. The resulting delay is justified on the twin grounds that earlier federal intervention would disrupt the orderly administration of state criminal prosecutions and deprive the state courts of their rightful part in making and enforcing federal law. The working principle, borrowed from the law of nations, is the notion of comity-the recognition that the courts of coordinate systems can and must exercise forbearance in cases in which both are interested, lest they interfere with each other, create confusion and distrust, and sacrifice the utility that comes with cooperation. To be effective, the exhaustion doctrine must be flexible. It must present the federal courts with general guidance, but permit them to appraise the circumstances in each case with sensitivity to competing interests. The doctrine is, or ought to be, a fact-oriented rule of prudence and discretion, applied on a case-by-case basis to orchestrate the exercise of federal jurisdiction in an effective manner without disrupting or displacing the work of the state courts. That, at any rate, is the theory on which the federal habeas courts have operated for a hundred years.

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