concurring:
I write separately, but briefly, only to raise to the explicit a concern implicit in Judge Thornberry’s scholarly opinion.
My difference with decisions that a state cannot waive the exhaustion requirement is basic. For example, United States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978), reasons that comity vindicates the interest of state courts and, accordingly, may be waived only by the courts and may not be waived by prosecutors. Yet, I understand comity to express federalism by deference to the sovereign interests of a state. In matters of habeas, comity is perforce expressed by allowing the courts of the state to examine habeas petitions first. It does not, however, follow in turn that such deference elevates the judicial branch of state government to sovereign status. That is, comity, in matters of habeas, is expressed by deferring to state courts in the sequence of review, but it does not necessarily follow that only those courts have the power to waive that opportunity first to decide. It is the state that enjoys the sovereign interest, not its courts. Assuming the state, qua sovereign, authorizes it to be made, a decision that its sovereign interests are best served by immediate prosecution of a petition in the federal court can hardly be overturned by the federal courts in the name of comity. Implicit in such reasoning is the idea that the federal government may decide how the state sovereign interest in enforcing its police power should be vindicated. Refusing a state the right to waive a benefit conferred in deference to its sovereignty stands sovereignty on its head. While that statement is concededly an abstraction, it is far more *555relevant than an ipse dixit statement that only the courts may waive the right first to decide.1 Stating that only state courts may waive has, to my ear, a dissembling ring. I am unaware of any process by which a court may do so. The effect is to achieve a rigidity of concept not unlike jurisdiction but calling it by another name.
No one here suggests that the Attorney General of the State of Texas is unauthorized by Texas law to express the state sovereign’s decision. The existence of authority to decide is a relevant inquiry, but it is one thing to ask who speaks for the state, and quite another to say that no one may or that the state cannot decide who may. Nor can it be an answer then to suggest that permitting waiver would allow the state to bypass its own courts to the “detriment of comity.” That approach confuses the means of expressing comity with the essence of comity itself. It is a confusion that timidly refuses to give comity full expression and in doing so strikes at its heart, That is, it undertakes to accept its legitimacy, yet denies its force — namely the sovereign right of a state to decide how, within constitutional limits, it will enforce its police power. It equally follows that to read Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as requiring a contrary result achieves a perverse, and I think unintended, result.
Opportunities for manipulation and abuse, if tolerated, can taunt the principle of federalism comity attempts to express. Yet, these opportunities do not flow from the choice between waiver and non-waiver of exhaustion. The opportunities may not be equally distributed, but either choice pays that price. This is so because any “right to waive” exhaustion is no more absolute than the idea of non-waiver. Instead, a court may require that waiver of exhaustion, as any other non-jurisdictional argument, be asserted in an orderly way by a sovereign, as any other litigant.
In sum, we must take care that we do not confuse the question of who is authorized to decide for the state if it will waive exhaustion with the concept of the right to waive at all. Reading his opinion as taking that care, I join Judge Thornberry.
. I do not attempt to trace the origin of comity and its judicial development. That exercise is instructive, but it has been well done by Judge Thornberry here and Judge Gibbons in Trantino, 563 F.2d 86, 98.