concurring.
I concur in the judgment, and in Parts II and III of the opinion. As far as Part I is concerned, I agree that it would be appropriate for us to waive the exhaustion requirement if the remedies available in the courts of Kentucky were not exhausted. It appears to me that Mr. Prather probably did exhaust his state remedies, but I do not believe this is a question we are required to decide.
The record before us includes a copy of the brief Mr. Prather filed in the Kentucky Court of Appeals. The first two issues raised in that brief were the same jury instruction issues presented in this habeas corpus proceeding. The alleged instructional error was claimed to violate Mr. Prather’s constitutional due process rights, and a number of federal decisions were cited in support of that proposition.
Finessing the jury instruction issues, the Kentucky Court of Appeals decided that the trial court had erred in denying Mr. Prather’s motion for a directed verdict. The Commonwealth appealed to the Kentucky Supreme Court, arguing that the trial court was correct in allowing the case to go to the jury. Most of Mr. Prather’s brief in the Supreme Court was devoted to an effort to refute the Commonwealth’s argument and defend the decision of the Court of Appeals. In the concluding section of his brief, however, Mr. Prather pointed out that he had raised four separate issues in the Court of Appeals, and he noted that the Court of Appeals had “reversed on the issue of insufficiency of the evidence [and] did not address the other three issues in any way.” Mr. Prather’s brief requested the Kentucky Supreme Court to remand *1426the case to the Court of Appeals for consideration of the other issues — including the jury instruction issues with which we are concerned here — should the Supreme Court decide to reverse on the sufficiency of the evidence question. Mr. Prather’s suggestion was not, adopted.
With that history, I would be reluctant to conclude that Mr. Prather failed to exhaust his state remedies. Given our decision to address the merits as a matter of discretion, however, it is not essential to decide whether the exhaustion requirement was, in fact, satisfied.