dissenting:
Three things are certain: (1) the prosecutor did exercise peremptories against women on account of their sex and in violation of the Constitution, which is made plain by J.E.B. v. Alabama, 511 U.S. 127, 146, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89 (1994) and United States v. De Gross, 960 F.2d 1433, 1442-43 (9th Cir.1992); (2) Windham procedurally defaulted on that claim; and (3) the State has never asserted the procedural default defense in these proceedings.
While I am concerned about saying that we should grant a writ of habeas corpus to this obviously guilty defendant solely because the State has never bothered to raise a procedural default defense, untoward results often follow the waiver of otherwise good defenses. That is one of the defects (?) of an adversarial, rather than an inquisitorial, system of justice. Moreover, I cannot see how we would offend the State’s dignity, or propagate any other evil, if we did not paternalis-tically raise a defense in which the State has not expressed any interest. Criminals, like Windham, are often held to their waivers; the State should be held to its. We have often done so in the past. See Brown v. Maass, 11 F.3d 914, 914 (9th Cir.1993); Francis v. Rison, 894 F.2d 353, 355 (9th Cir.1990); Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir.1987); Batchelor v. Cupp, 693 F.2d 859, 863-64 (9th Cir.1982); see also Estelle v. Smith, 451 U.S. 454, 468 n. 12, 101 S.Ct. 1866, 1876 n. 12, 68 L.Ed.2d 359 (1981), adopting reasoning of Smith v. Estelle, 602 F.2d 694, 708 n. 19 (5th Cir.1979); Jenkins v. Anderson, 447 U.S. 231, 234 n. 1, 100 S.Ct. 2124, 2127 n. 1, 65 L.Ed.2d 86 (1980). As we said in Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992), “ordinarily,” a claimed procedural default will not be considered, if the state fails to assert an interest in compliance with its procedural rules in the petitioner’s federal habeas proceedings. If there ever could be an extraordinary case at this late stage of proceedings, which I question, this one is not it. The only thing extraordinary about this case is that it is the very paradigm of discriminatory use of peremptories.
I would not bypass our prior cases by relying upon our decision in Boyd v. Thomp*1108son, 147 F.3d 1124 (9th Cir.1998). That case dealt with a situation where the district court saw the existence of a procedural default from reading the habeas corpus petition, and then raised the issue before the petition was ever served upon the state. See id. at 1127. We approved of that. Nevertheless, the state had not, and could not have, waived the issue. To the extent that our decision can be read as extending to cases where the state has waived the issue, it is merely dicta.1 I would not metamorphose that dicta into a holding, and if I did, I would not extend it to appellate courts.2
I realize that the Supreme Court has declined to answer the question of whether a court of appeals can raise the issue sua sponte. See Trest v. Cain, 522 U.S. 87,-, 118 S.Ct. 478, 480, 139 L.Ed.2d 444 (1997). I agree with the Eleventh Circuit that we “should assume that the waiver is justified,” and that “there is no important federal interest” in raising it sua sponte. Esslinger v. Davis, 44 F.3d 1515, 1528 (11th Cir.1995).3 Thus, I would answer no.4 And if we can raise it, but need not, I would not.
Thus, I respectfully dissent.
. Of course, our waiver by silence doctrines may be somewhat academic in the future. See Boyd, 147 F.3d at 1127n. 4.
. I am not especially moved by the fact that the procedural default appears on the face of the state court record. Must not it always so appear, if we are to rely upon that as an independent state ground?
. I realize that the Eleventh Circuit was dealing with a case where the district court raised the waived procedural default issue sua sponte. Also, other courts do not agree with its ultimate holding. See, e.g., Magouirk v. Phillips, 144 F.3d 348, 358-59 & n. 2 (5th Cir.1998).
.Two courts of appeals have held to the contrary. See Hull v. Freeman, 932 F.2d 159, 164-167 (3d Cir.1991); Galowski v. Murphy, 891 F.2d 629, 634 n. 11 (7th Cir.1989). Neither one actually denied relief on procedural default grounds.