CLAY, J., delivered the opinion of the court in Parts I.A., II.B., and II.C. below. GILMAN, J. (pp. 344-347), delivered the opinion of the court in Part I. of his concurring opinion. MOORE, J. (pp. 347-350), delivered a separate dissenting opinion.
OPINION
CLAY, Circuit Judge.Petitioner, Theodore J. Lyons, was convicted in August of 1987 of first-degree criminal sexual assault and sentenced to a term of ten to twenty-five years of imprisonment for the rape of a mentally retarded woman who was confined to a community living facility where Petitioner worked as a staff member. After unsuccessfully appealing his conviction to the Michigan appellate courts, Petitioner filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The district court granted the petition, and ordered that the case be returned to the state forum for a new trial within 180 days. The state appealed, but did not move for a stay of the writ pending appeal. Petitioner moved for release pending the state’s appeal; however, the district court denied Petitioner’s motion based upon the severity of the offense and the strong likelihood of another conviction.
Because we find that Petitioner failed to exhaust his state court remedies, his case is not properly before us. However, in the interest of judicial economy, we will excuse Petitioner’s lack of exhaustion and apparent procedural default because the eviden-tiary issue upon which he bases his federal constitutional claim seeks the retroactive application of a new rule of law which is barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Accordingly, we REVERSE the district court’s order granting Petitioner’s writ of habeas corpus.1
BACKGROUND
In March of 1983, Petitioner began working at the Hull Road Community Living Facility, a home for the mentally retarded, in Belleville, Michigan. Petitioner was shift supervisor and provided direct care to the residents, including feeding, bathroom assistance, and general personal care. At that time, approximately two of the six residents and five of the ten staff members at the home were men. On June 22, 1983, the victim, Evangeline McKenzie, became a resident at the home. Ms. McKenzie was both mentally and physically disabled in that she was profoundly retarded with an IQ below twenty and suffered from muscular dystrophy. She could not talk, feed or bathe herself, or use the bathroom without assistance.
In December of 1983, Dr. Mindy Smith, a family practice physician, examined Ms. McKenzie because it had been reported that Ms. McKenzie was exhibiting unusual behavior such as repeatedly hitting her abdomen while making sounds — inasmuch as she could not speak words — and that Ms. McKenzie had gained weight in her abdominal area. Dr. Smith diagnosed Ms. McKenzie as being pregnant, and opined that Ms. McKenzie was hitting her abdomen likely because she could feel fetal movement. Based upon records kept at the facility indicating that Ms. McKenzie’s last menstrual period had begun on June 15, 1983, as well as upon her physical examination of Ms. McKenzie’s uterus and abdomen, and the results of an ultrasound examination, Dr, Smith determined that as of December 8, 1983, Ms. McKenzie was 20.5 weeks pregnant.
*330Ms. McKenzie gave birth to a boy, Jonathan McKenzie, on March 24, 1984, and she died seven months later. Jonathan, who also was profoundly retarded, died in October of 1984. Dr. Karen Bartscht, a physician who assisted in Jonathan’s delivery, opined that Jonathan was premature' and estimated that conception had taken place between June 15 and June 25, 1983. Dr. Bartscht had examined Ms. McKenzie on February 15, 1994, about six weeks before delivery, and determined that Ms. McKenzie was a few days over thirty weeks pregnant. At the time of delivery, Dr. Bartscht drew blood samples from Ms. McKenzie and Jonathan, and the samples were sent to the state police crime laboratory.
Inasmuch as Ms. McKenzie was unable to communicate, blood samples were taken from the facility’s two male residents, the five male direct-care providers other than Petitioner, as well as from the facility’s director, in an attempt to determine paternity. Comparison of these blood samples with that of Ms. McKenzie and Jonathan excluded these men as being the possible father. Petitioner refused to voluntarily provide a blood sample, so a search warrant was obtained, and a blood sample was drawn. Petitioner’s blood, along with that of Ms. McKenzie and Jonathan, were sent to the National Legal Laboratory where human leukocyte antigen (HLA) tests revealed that the genetic markers in Petitioner’s blood matched the genetic markers found in Jonathan’s blood.2 Based upon these findings, Petitioner was charged with first-degree criminal sexual assault.
At trial, the prosecution presented testimony from two expert witnesses, Dr. Walker and Dr. Gershowitz, to explain the HLA test results that each had performed. The experts each characterized the results of the tests in three different statistical forms: 1) the probability of exclusion, 2) the combined paternity index, and 3) the probability of paternity. Dr. Gershowitz and Dr. Walker opined that the probability of exclusion, which described the strength of the test by indicating its ability to exclude falsely accused men, was 95.5% and 99.5%, respectively. In other words, the experts opined that the results of the tests would exclude a falsely accused man with close to 100% accuracy. Except for Petitioner, the possibility of paternity was excluded as to all of the men tested in connection with this case. According to Dr. Walker, because it is not possible to prove paternity, the fact that Petitioner was not excluded as the father was “the most powerful evidence” in the case. Petitioner did not object to the admittance of the probability of exclusion evidence, and does not do so on appeal.
The combined paternity index expressed the likelihood that Petitioner was the father as opposed to a random man based upon the same genetic markers. Dr. Ger-showitz described this test as an “odds statement.” Specifically, he opined that “[ijt’s the odds that this man is the father of this child compared to any other man in the population who might have been able to contribute the requisite genes.” Dr. Gershowitz’s test results indicated that the combined paternity index for Petitioner in this case was 303.8 to 1; or, put differently, Petitioner was about 304 times more likely to be Jonathan’s father than a random man. Dr. Walker reported that, based upon his testing, Petitioner’s combined paternity index was 429 to 1, or that Petitioner was 429 times more likely to be Jonathan’s father than a random man. Petitioner did not object to the introduction of the combined paternity index statistics, and does not do so on appeal.
The probability of paternity statistics were based upon the same test results from the same genetic markers, but were expressed in terms of percentages as op*331posed to odds. Dr. Gershowitz converted the 303.8 to 1 combined paternity index odds found by his testing to a probability of paternity percentage of 99.7%. Dr. Walker converted the 429 to 1 combined paternity index odds found by his test results into a probability of paternity expression of 99.76%. The experts made it known to the jury that the probability of paternity percentages were calculated on the underlying mathematical assumption that Petitioner had had sexual intercourse with Ms. McKenzie; that the percentages had to be viewed and weighed by the jury in light of the other evidence admitted; and that if it were a known fact that Petitioner did not have sexual intercourse with the victim, the value of the probability of paternity would be zero percent. It is the probability of paternity statistics to which Petitioner objected at trial, and objects to on appeal.
Petitioner was convicted by a jury of first-degree criminal sexual assault and sentenced to a term of ten to twenty-five years’ imprisonment. Petitioner appealed his conviction, and the Michigan Court of Appeals affirmed. Petitioner sought leave to appeal his conviction to the Michigan Supreme Court; however, his application was denied. Petitioner then filed for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan, raising the following two issues:
I. WERE PETITIONER’S RIGHTS TO THE PRESUMPTION OF INNOCENCE AND TO TRIAL BY JURY EVISCERATED BECAUSE OF THE INTRODUCTION OF HIGHLY PREJUDICIAL TESTIMONY AND ARGUMENT REGARDING THE PURPORTED STATISTICAL PROBABILITY OF PETITIONER’S PATERNITY?
II. WERE PETITIONER’S RIGHTS UNDER THE FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS VIOLATED BECAUSE OF THE PROSECUTOR’S CROSS-EXAMINATION WHICH SUGGESTED THAT PETITIONER WAS GUILTY BECAUSE THE POLICE WERE REQUIRED TO SEEK A SEARCH WARRANT TO OBTAIN HIS BLOOD?
United States Magistrate Judge Marc Goldman recommended that the petition be granted because 1) calculation of the so-called “probability of paternity” statistics by the experts depended on an underlying mathematical assumption that Petitioner had had sexual intercourse with Ms. McKenzie, and 2) the prosecutor’s question on cross-examination regarding Petitioner’s refusal to provide a blood sample without a warrant was in violation of Petitioner’s Fourth Amendment rights. On July 30,1997, United States District Judge Barbara Hackett issued an order accepting the magistrate’s report and recommendation, and granting the writ of habeas corpus. . The state filed this timely appeal.
ANALYSIS
I. Failure to Exhaust State Court Remedies
A.
The exhaustion provision of 28 U.S.C. § 2254 reflects a policy of federal-state comity, and requires a federal habeas petitioner to “fairly present” to the state courts the “substance” of his federal habe-as claim prior to seeking such relief. Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); see Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). “The exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). “Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have re*332quired a state prisoner to present the state courts with the same claim he urges upon the federal courts.” Picard, 404 U.S. at 276, 92 S.Ct. 509. “A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.” Rose, 455 U.S. at 518-19, 102 S.Ct. 1198. The exhaustion requirement “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights.” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam).
In Kilby v. Jones, 809 F.2d 324, 325 (6th Cir,1987), this Court found that a petitioner had failed to exhaust his state court remedies when he argued in state court that “his court-appointed trial counsel provided constitutionally ineffective legal assistance because he ‘delegated’ to counsel for a codefendant the ‘factual investigation prior to trial,’ ” but argued in federal court that his counsel was ineffective in conducting the trial itself as well as in handling his motion to suppress. This Court held that because the basis for the petitioner’s ineffective assistance of counsel claim as argued in the federal courts was not the same basis as argued in the state courts, the petitioner had not exhausted his state court remedies. Id.
Similarly, in the instant case, although Petitioner raised the evidentiary claim to the state appellate courts, he argued it on the basis that he was denied his Fourteenth Amendment right to a fair trial because the evidence was more prejudicial than probative, not because the evidence violated the presumption of innocence as he argues to the federal courts.3 As such, the Michigan state appellate courts were denied a fair opportunity to consider and pass on the error that Petitioner claims in federal court—that the use of evidence that assumes guilt violates the presumption of innocence.4 Picard, *333404 U.S. at 276, 92 S.Ct. 509; Kilby, 809 F.2d at 325; see Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir.1987) (finding that the “doctrine of exhaustion requires that the same claim under the same theory be presented to state courts before raising it in a habeas petition,” and that the petitioner had not exhausted his state remedies because he based his claim of ineffective of assistance of counsel in the state courts on different grounds than he asserted in the federal courts).
Normally, Petitioner’s failure to exhaust his state court remedies on the evidentiary claim would require dismissal of his entire petition. See Rose, 455 U.S. at 522, 102 S.Ct. 1198 (holding that a federal district court must dismiss a state habeas petitioner’s writ containing both unexhausted and exhausted claims). However, in Granberry v. Greer, 481 U.S. 129, 131—32, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the Supreme Court held that although there is a strong presumption in favor of requiring a petitioner to exhaust his available state court remedies, the failure to do so is not an absolute bar to appellate consideration of his petition — i.e., the doctrine of exhaustion is discretionary, not jurisdictional. For example, as in this case, where the state fails to raise the defense, the appellate court should “determine whether the interest of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner’s claim.” Id. at 134, 107 S.Ct. 1671. Furthermore, it has been found that where “the federal constitutional claim was plainly meritless and it would be a waste of time and judicial resources to require exhaustion,” nonexhaustion and procedural default should be excused.5 Cain v. Redman, 947 F.2d 817, 820 (6th Cir.1991) (citing Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.1987)).
In Cain v. Redman, this Court held that it was in the-interest of judicial economy for the Court to hear the case before it “in spite of the unresolved issues of exhaustion and procedural default [because,] [a]lthough petitioner’s federal constitutional claim [was] not plainly meritless, ... it [could] not withstand the hurdle of the rule of Teague v. Lane, which forbids retroactive application of new rules of law.” 947 F.2d at 820. The Court reasoned that a remand to the district court for a hearing on exhaustion and procedural default would be a waste of time because even if these issues were decided in the petition*334er’s favor, this Court would still be barred from hearing the merits of the petitioner’s constitutional claim inasmuch as the petitioner relied upon a new rule of law that could not be applied retroactively on federal habeas review.6 Id. Likewise, because Petitioner in this case seeks retroactive application of a new rule of law, in the interest of judicial economy, Petitioner’s lack of exhaustion and apparent procedural default shall be excused where a hearing on cause and prejudice would be futile.
B.
If it were not for the application of Teague to this case, in the interest of comity Petitioner’s application for writ of habeas corpus would be dismissed. As noted, the exhaustion requirement is grounded in principles of comity, such that the states should have the first opportunity to adjudicate and possibly correct an alleged violation of a state prisoner’s federal constitutional right. See Rose, 455 U.S. at 515, 102 S.Ct. 1198; Norris v. Schotten, 146 F.3d 314, 323 (6th Cir.1998) (noting that a federal court may issue a writ of habeas corpus to correct a constitutionally infirm state court conviction “[ujpon [the] petitioner’s exhaustion of available state remedies.... ”). The Supreme Court explained the exhaustion doctrine, and the role comity plays in its enforcement, as follows:
Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.
Rose, 455 U.S. at 518, 102 S.Ct. 1198 (internal quotation marks and citations omitted); see Blacks Law Dictionary 267 (6th ed.1990) (defining “comity” as that where “courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and mutual respect”). In Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.1987), we stated that all other considerations aside, such as judicial efficiency, “if we thought that our disposition [of a petition] would negatively impact federal-state comity, we would dismiss for lack of exhaustion.” In this case, the state has continually argued that the evidentiary claim raised by Petitioner is solely a matter of state law.
It is true that where a full trial has been held in the district court and it is evident that a miscarriage of justice has occurred, nonexhaustion should be excused. See Granberry, 481 U.S. at 135, 107 S.Ct. 1671. However, in this case, although the district court granted Petitioner’s application for writ of habeas corpus, the court also refused to release Petitioner from jail pending appeal of the district court’s decision due to the severity of the offense and the strong likelihood of another conviction. Thus, Petitioner’s rights would not be offended by failing to excuse his nonexhaustion. See, e.g., O’Neal v. McAninch, 513 U.S. 432, 442, 115 S.Ct. 992, 130 L.Ed.2d 947 (noting that under habeas review, we “are dealing ... with an error of constitutional dimension — the sort that risks an unreliable trial outcome and the consequent conviction of an innocent person”).
*335In Prather, this Court excused the petitioner’s failure to exhaust and addressed the merits of his constitutional claims for the following reasons:
Because [the petitionér’s] petition is so plainly meritless, addressing the merits of his claim will be efficient and will not offend federal-state comity. Efficiency includes bringing criminal litigation to a final conclusion. To return this case to the district court for a hearing on exhaustion, possible state post-conviction remedies, and perhaps still another ha-beas corpus proceeding, would greatly and wastefully expend judicial resources. Even so, if we thought our disposition would negatively impact federal-state comity, we would dismiss for lack of exhaustion. But where, as here, the petition is meritless, the state’s attorney concedes the issue of exhaustion, and our disposition will not affect the state court’s decision, comity and efficiency are served, not offended.
822 F.2d at 1422. Here, however, any decision to excuse Petitioner’s failure to exhaust is inapposite to Prather in that it supports an inverse proposition. That is to say, a decision to excuse Petitioner’s failure to exhaust and apparent procedural default to find Petitioner’s evidentiary claim meritorious thereby would affect the state court’s decision, and comity and efficiency would be offended, not served. See O’Guinn v. Dutton, 88 F.3d 1409, 1411-13 (6th Cir.1996) (per curiam en banc).
Furthermore, it appears that a hearing to determine cause for and prejudice due to the apparent procedural default would be futile despite the application of Teague. See supra note 5. To satisfy the cause requirement, a habeas petitioner must make “a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). “[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Id.; see Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Here, Petitioner raised a challenge to the evidence in question in the state appellate courts; however, he failed to base his challenge on the grounds upon which he rests on appeal. His failure to recognize these alternative grounds or failure to raise them despite recognizing them below, cannot constitute cause. Carrier, 477 U.S. at 492, 106 S.Ct. 2639. Prejudice may be shown if the constitutional error “had a substantial and injurious effect or influence on the jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Petitioner did not suffer prejudice from the admittance of this evidence. Likewise, the facts of this case do not present the “extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent,” thereby allowing us to excuse the lack of cause and prejudice. Carrier, 477 U.S. at 496, 106 S.Ct. 2639.
Accordingly, it appears that Petitioner’s evidentiary claim would be barred from our review even without the application of Teague v. Lane.
II. Evidentiary Claim Barred by Teague v. Lane
A.
In Teague v. Lane, 489 U.S. 288, 316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held “that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review. ...” The Court has made it clear that the application of Teague, while being a threshold question in a federal habeas case, “is not ‘jurisdictional’ in the sense that [federal courts] ... must raise and decide the issue sua sponte.” Collins v. *336Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Conversely, the Court has also made it clear that, if raised, a federal court must apply Teague:
We have recognized that the nonretroac-tivity principle “is not ‘jurisdictional’ in the sense that [federal courts] ... must raise and decide the issue sua sponte.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990).... But if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim. Graham v. Collins, 506 U.S. 461, 466-67, 113 S.Ct. 892, 897-898, 122 L.Ed.2d 260 (1993).
Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (emphasis added). However, until recently, the Court had not provided the lower courts with guidance as to what procedural formalities were necessary to constitute a properly raised Teague claim. See Marc M. Arkin, The Prisoner’s Dilemma: Life in the Lower Federal Courts After Teague v. Lane, 69 N.C.L.Rev. 371, 416 (1991). Indeed, in the aftermath of Teague, the circuits have grappled with what procedural requirements were necessary for a state to preserve its Teague argument — i.e., what procedural requirements were necessary to render the Court’s application of Teague mandatory. See, e.g., Wilmer v. Johnson, 30 F.3d 451, 454-55 (3rd Cir.1994); Epperly v. Booker, 997 F.2d 1, 9 n. 7 (4th Cir.1993); Jordan v. Ducharne, 983 F.2d 933, 936 (9th Cir.1993); Williams v. Dixon, 961 F.2d 448, 457-59 (4th Cir.1992); Boardman v. Estelle, 957 F.2d 1523, 1534-37 (9th Cir.1992).
Then, in the case of Goeke v. Branch, 514 U.S. 115, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995), the Supreme Court brought clarity to the confusion by definitively announcing the procedural prerequisites necessary for a properly raised Teague claim. In Goeke, the habeas petitioner appealed to the Eighth Circuit, arguing that she had stated a procedural due process violation, and that the district court’s denial of her petition should therefore be reversed. Id. at 117, 115 S.Ct. 1275. At oral argument, the panel suggested that the petitioner’s claim may have actually been based on substantive due process grounds, rather than procedural due process grounds. Id. The petitioner’s counsel “welcomed the suggestion” and argued the substantive due process claim before the court. Id. This was the first time that the substantive due process argument was raised and argued. Id. In turn, the state argued that any substantive due process argument was barred by the application of Teague. Id. The record indicated that several questions and answers were exchanged at oral argument by the state and the panel regarding the application of Teague to the substantive due process claim. Id. at 118, 115 S.Ct. 1275. Thereafter, the Eighth Circuit held that the petitioner’s substantive due process rights had been violated, and reversed the district court’s decision without addressing the state’s Teague claim. Id. at 117, 115 S.Ct. 1275. Then, after denying the state’s motion for rehearing en banc, the majority modified its opinion to explain that it had not confronted the applicability of Teague to the petitioner’s claim because the state had waived the issue. Id. (citing Branch v. Turner, 37 F.3d 371, 374-75 (1994)).
The Supreme Court granted certiorari and reversed the Eighth Circuit, finding that the state had preserved the Teague argument as applied to the petitioner’s substantive due process claim, even though the claim was addressed for the first time at oral argument. Id. at 118, 115 S.Ct. 1275. The Court reasoned that because the state had made efforts to “alert the Eighth Circuit to the Teague problem [so as to] provide[ ] the court with ample opportunity to make a reasoned judgment on the issue, ... the state did not waive the Teague issue.”7 Id. In short, Goeke *337now makes it clear that a federal court’s sua sponte application of Teague is discretionary; however, when raised by the state, a federal court’s application of Teag-ue is mandatory, even when raised for the first time at the first hearing on appeal as long as the state provides the appellate court with ample opportunity to make a reasoned judgment on the issue.
This conclusion is supported by a decision from the Court of Appeals for the Second Circuit. In Ciak v. United States, the Second Circuit was asked to consider whether the district court erred in denying the petitioner a writ of habeas corpus under the automatic reversal rule, where the trial judge failed to inquire into the possible conflicts of interest of the petitioner’s trial counsel. 59 F.3d 296, 301 (2d Cir.1995). The state argued that the automatic reversal rule was not applicable because the rule only applied to cases on direct appeal. Id. The state did not, however, argue that the automatic reversal rule could not be applied to the petitioner’s case under Teague. Id. at 302. In analyzing whether the district court erred in denying the writ, the Second Circuit found that the state had waived a Teague claim under Goeke because it “did not argue in its brief or at oral argument that Teague bar[red] application of the automatic reversal rule.” Ciak, 59 F.3d at 302 (citing Goeke, 514 U.S. at 118, 115 S.Ct. 1275) (emphasis added). In other words, under Goeke, the Ciak Court would not have considered a Teague argument waived had the state raised the claim in its brief on appeal or at oral argument before the Court, even though the state had not raised Teague in the district court.
In fact, authority existed “pre Goeke” to support the same conclusion. In a habeas appeal to the Court of Appeals for the Fourth Circuit, the Court found that the state had waived its Teague argument “by its failure to raise the issue at the district court level or at the first hearing before this court.” Williams v. Dixon, 961 F.2d 448, 459 (4th Cir.), cert. denied, 506 U.S. 991, 113 S.Ct. 510, 121 L.Ed.2d 445 (1992) (emphasis added). By using the disjunctive “or” as opposed to the conjunctive “and,” the Fourth Circuit expressly found that it would have considered a Teague argument raised for the first time at the first hearing before the Court. Therefore, authority existed before Goeke was decided to support the proposition that a state need not necessarily raise a Teague claim at the district court level in order to preserve the issue for appellate review.
Accordingly, in the instant case, the state properly preserved its Teague claim for our review because the state argued in both its brief on appeal to this Court as well as at oral argument that the application of Teague barred the relief sought. For example, at oral argument, the state argued its Teague claim as follows:
THE STATE :[I]t would seem then that if there is no federal ease on point, then this evidence is inadmissible, then under Teague v. Lane, this would be a new rule.
THE COURT:
(Moore, J.)Did you raise your Teague argument earlier?
THE STATE :No, but I would say this about it. In the district court I did not. I say it’s not analogous to a default argument as the petitioner argues because it’s not something that can be waived. It doesn’t involve the questions of federalism and comity. It’s an administrative rule actually. Administrative in the sense that it’s the way that the Supreme Court says that we will handle these cases of new rules. So, I didn’t say that, but I think it’s subsumed in my argument when I say that this is not a federal question and I *338have consistently said that before the magistrate, the district court, this is not a federal question, it is a state evidentiary question. But also, the magistrate when he made his ruling, well the petitioner argued in response to me that the legal landscape would have required application of this rule and the legal landscape that he’s referring to are those four state cases, which was also the basis for the magistrate’s ruling. But three of those four cases were decided as a matter of state evidentiary law, only one of them — a Connecticut case — deals with federal constitutional matters. That was overlooked by the magistrate. Also, the fact that the dissenting justice of the Wisconsin Supreme Court noted that there were various jurisdictions that do permit the admissibility of this probability testimony, at least four of them I think the dissenting justice noted.
THE COURT:
(Moore, J.)Counsel, you’ve used your full 15 minutes.
THE STATE:Thank you.
THE COURT:
(Moore, J.)Thank you.
Lyons v. Stovall, 188 F.3d 327, Oral Argument by Respondent, June 19, 1998. In addition, Petitioner responded to the state’s Teague claim in his brief on appeal to this Court, and argued why he believed that Teague did not bar his evidentiary claim. See Petitioner-Appellee’s Final Brief on Appeal at 23-31. Accordingly, the record indicates that the state’s efforts to alert this Court to the Teague problem “provided th[e] court with ample opportunity to make a reasoned judgment on the issue.” Goeke, 514 U.S. at 118, 115 S.Ct. 1275. Thus, under Goeke, and as reinforced by Ciak and Williams, it is clear that the state properly raised and preserved its Teague claim, albeit for the first time on appeal; as such, this Court’s application of the rule is mandatory. See Cas-pari, 510 U.S. at 389, 114 S.Ct. 948. Furthermore, as noted infra in this discussion, the improvidence of advancing new rules of law on collateral review provides support for finding that the preservation of Teague’s application should not be limited or held to wooden literalness. See Solem v. Stumes, 465 U.S. 638, 654 n. 4, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (Powell, J., concurring).
However, relying upon Sinistaj v. Burt, 66 F.3d 804, 805 n. 1 (6th Cir.1995) and Kordenbrock, v. Scroggy, 919 F.2d 1091, 1104 n. 4 (6th Cir.1990) (en banc), Petitioner claims that the state waived its Teague argument inasmuch as the state failed to raise this argument either to the magistrate judge or in its objections to the magistrate judge’s report and recommendation that it submitted to the district judge. In light of Supreme Court precedent, the cases relied upon by Petitioner are distinguishable and ill-decided. For example, the case at hand is distinguishable from Kordenbrock. In that case, this Circuit found that the state’s failure to raise a Teague argument at any stage of the proceeding constituted a waiver of the argument. 919 F.2d at 1104 n. 4. True enough, a federal court may exercise its discretion and consider a Teague argument waived if not raised by the state at all; however, it is equally true that, once raised, a federal court must apply Teague. See Caspari, 510 U.S. at 389, 114 S.Ct. 948. Accordingly, although Kordenbrock was properly decided in that Teague was never raised by the state, it is also distinguishable from the facts of the instant case, and Petitioner’s reliance on Kordenbrock is thus misplaced.
Furthermore, Petitioner’s reliance on Sinistaj is misplaced because that case was wrongly decided in light of Goeke. In Sinistaj, a case decided “post-Goeke,” a panel of this Court held that the state waived its Teague argument because it raised the issue for the first time in its motion to amend the district court’s judg*339ment. 66 F.3d at 806 n. 1. The Sinistaj court relied upon Caspari in support of its finding. Id. However, Caspari simply states that a federal court need not raise and decide Teague sua sponte. 510 U.S. at 389, 114 S.Ct. 948. Goeke, on the other hand, specifically states that Teague need only be raised by the state to the extent that it allows the appellate court ample opportunity to make a reasoned judgment before Teague’s application is mandatory — even when the state raises Teague for the first time at the first hearing before the appellate court. 514 U.S. at 117-18, 115 S.Ct. 1275. Therefore, inasmuch as Goeke had already been decided at the time the Sinistaj court rendered its decision, Sinistaj is in direct contravention to Supreme Court precedent, and Petitioner’s reliance on Sinistaj is also misplaced and unfounded.
Accordingly, in the case at hand, having found that the state properly preserved its Teague argument, and that Teague must therefore be applied, it is dispositive. As argued by the state, any decision announcing that the presumption of innocence is violated by the use of evidence which assumes a statistical probability of guilt would be a “new rule” under Teague, and therefore cannot be used as grounds for granting the petition for habe-as relief.8
B.
Under Teague, “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. “To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. In determining whether the relief requested would constitute a new rule, the question becomes “ ‘whether a state court considering [the petitioner’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.’ ” Caspari, 510 U.S. at 390, 114 S.Ct. 948 (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)).
There are two exceptions to Teague’s general proposition that new rules should not be applied retroactively to cases on collateral review. The first exception applies to those rules that “plac[e] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.”9 Teague, 489 U.S. at 307, 109 S.Ct. 1060 (internal quotation marks omitted). The second exception to Teague’s nonretroac-tivity permits the application of “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060). “A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (internal quotation marks and citations omitted). This exception encom*340passes a “small core of rules requiring ‘observance of those procedures that ... are implicit in the concept of ordered liberty.’ ” Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060) (internal quotation marks omitted). The rule espoused in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that a defendant has the right to be represented by counsel in all criminals trials for serious offenses, is often cited as an example of a rule falling within this exception, although the precise contours of this exception may be difficult to discern. See Saffle, 494 U.S. at 495, 110 S.Ct. 1257.
Here, although Petitioner argues that the state waived its Teague argument, he also contends that should the Court find otherwise, the application of Teague does not bar the relief sought because the district court did not state a new rule of law in holding that probability evidence which assumes a statistical probability of guilt violates the presumption of innocence; and that, even assuming that a new rule was espoused, it falls into Teague’s second exception for nonretroactivity. Both of Petitioner’s contentions are meritless.
First, the district court clearly set forth a “new rule” under Teague because the Michigan appellate courts had no legal basis at the time that they adjudicated Petitioner’s case to feel “compelled by existing precedent to conclude that the rule [Petitioner sought] was required by the Constitution.” Saffle, 494 U.S. at 488, 110 S.Ct. 1257. Precedents which “inform or even control or govern” the intervening decision do not keep it from being a new rule if the precedents do not “compel” the decision. Id.
Petitioner argues that if the Michigan appellate courts “had conducted a survey of the legal landscape at the time Mr. Lyons’ conviction became final in April 1995, they would have felt compelled by existing precedent to conclude that the rule he seeks was then required by the Constitution.” Petitioner relies upon case law from other state court jurisdictions in support of his contention. However, the Michigan courts were not bound by decisions from these other state jurisdictions and therefore surely would not have felt “compelled” to embrace them.10
In addition, Petitioner also claims that his legal proposition, that the use of evidence that assumes a statistical probability of guilt violates the presumption of innocence, is not a new rule because it flows directly from bedrock principles stated in long-established federal law cases embracing the presumption of innocence. However, Petitioner’s argument is without merit because those cases did not speak to the specific violation of the presumption of innocence alleged here. See, e.g., Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In Cain v. Redman, 947 F.2d 817, 821-22 (6th Cir.1991), this Court concluded that the rule espoused by Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) — that jury instructions containing a presumption indicating that one intends the consequences of his voluntary actions are unconstitutional because they abridge the principles of presumption of innocence *341and allocation of burden of proof thereby denying a defendant due process of law— was a new rule under Teague despite these long-established federal cases embracing the presumption of innocence.
As the Court in Cain recognized, “a legal ruling sought by a federal habeas petition will be deemed ‘new’ as long as the correctness of the rule is susceptible to debate among reasonable minds.” 947 F.2d at 821 (citing Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 847 (1990)). Here, it is “susceptible to debate” as to whether the probability of paternity statistics violate the presumption of innocence, inasmuch as courts have allowed the use of these statistics without finding error. See State v. Hartman, 145 Wis.2d 1, 426 N.W.2d 320, 329 (1988) (Steinmetz, J., dissenting) (collecting cases from jurisdictions that allow the use of the statistics in question); see also Coe v. Bell, 161 F.3d 320, 353 (6th Cir. 1998) (finding that a result is not dictated by precedent “when courts have reached divergent results on an issue before resolution by the Supreme Court”); Cain, 947 F.2d at 821 (noting the fact that the jury instructions found to be unconstitutional were routinely given without challenge rendered their correctness “susceptible to debate among reasonable minds”). Therefore, Petitioner’s claim that the rule he advocates is not a “new rule” under Teag-ue is without merit.
Furthermore, Petitioner’s alternative claim that the rule falls under Teag-ue’s second exception to nonretroactivity— those rules which “implicate] the fundamental fairness and accuracy of the criminal proceeding”—is also without merit. Teague, 489 U.S. at 311, 109 S.Ct. 1060. Petitioner argues that the rule falls under Teague’s second exception inasmuch as the rule is based upon protecting a defendant’s presumption of innocence which lies at the cornerstone of this country’s criminal justice system. However, because the new rule lacks the “primacy and centrality of the rule adopted in Gideon,” it does not rise to the level of the second exception. See Saffle, 494 U.S. at 495, 110 S.Ct. 1257.
As noted, the petitioner in Cain v. Red-man sought to apply retroactively the new rule espoused by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), which was also premised upon a defendant’s presumption of innocence; namely, that jury instructions containing a presumption indicating that one intends the consequences of his voluntary actions are unconstitutional because they abridge the principles of the presumption of innocence and the allocation of the burden of proof, thereby depriving a defendant of due process of law. Cain, 947 F.2d 817, 819-22 (6th Cir.1991); see supra note 4 and accompanying text. The district court found that the petitioner could not invoke the Sandstrom rule inasmuch as this new rule did not fall under either of Teague’s exceptions, specifically Teague’s second exception, and this Court agreed. Id. at 822 (citing Cain v. Red-man, 757 F.Supp. 831, 835 (W.D.Mich. 1990)). This Court noted that the new rule was “not within the narrow category of fundamental bedrock procedural elements that come within this exception,” and adopted the district court reasoning as follows:
The second Teague exception is reserved for “ ‘watershed rules of criminal procedure’ that are necessary to the fundamental fairness of the criminal proceeding.” Sawyer v. Smith, [497 U.S. 227], 110 S.Ct. [2822] at 2831 [111 L.Ed.2d 193 (1990) ] (citing Saffle, 494 U.S. at 493-94, 110 S.Ct. at 1263). Although the precise contours of this exception may be difficult to discern, the Supreme Court has “usually cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming with the exception.” Saffle, 494 U.S. at 495, 110 S.Ct. at 1264. To fit within the second exception, a new
*342rule must do more than improve the accuracy of the trial; it must alter the understanding of the “bedrock procedural elements essential to the fairness of a proceeding.” Sawyer, 497 U.S. at 242, 110 S.Ct. at 2831. Against these standards, I conclude that Sandstrom does not represent one of the “watershed” rules envisioned by Teague.
Cain, 947 F.2d at 822 (quoting Cain v. Redman, 757 F.Supp. at 835).
Accordingly, inasmuch as a panel of this Court has held that a new rule which found that a jury instruction is unconstitutional because it violated a defendant’s due process rights by infringing upon the defendant’s presumption of innocence did not fall under Teague’s narrow second exception, the similar new rule proposed in this case — that use of evidence which assumes a statistical probability of guilt infringes upon a defendant’s presumption of innocence — would likewise not rise to the level of one of the “watershed” rules envisioned by Teague. In fact, the Sandstrom rule presents an even more compelling case for finding such an exception, inasmuch as the rule deals with a jury instruction that infringed upon the defendant’s presumption of innocence, as opposed to the situation in this case where it is alleged that evidence which the jury could weigh and consider as it saw fit infringed upon Petitioner’s presumption of innocence.
Furthermore, the new rule proposed by Petitioner is along the lines of that pronounced in Caldwell v. Mississippi 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which the Supreme Court later found to be a new rule that did not fit into either of the two exceptions set forth under Teague. See Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Caldwell held that the Eighth Amendment prohibits the imposition of the death penalty where it was found that the séntencer had been led to believe that the responsibility for determining the appropriateness of the defendant’s capital punishment lie elsewhere. 472 U.S. at 328-29, 105 S.Ct. 2633. The petitioner in Sawyer argued that the rule espoused in Caldwell should fall under the second exception to nonretroactivity. 497 U.S. at 242, 110 S.Ct. 2822. The petitioner contended that the second exception “should be read to include new rules of capital sentencing that ‘preserve the accuracy and fairness of capital sentencing judgments.’ ” Sawyer, 497 U.S. at 242, 110 S.Ct. 2822. The Supreme Court, however, disagreed with the petitioner, because his argument disregarded the second requirement of the exception; namely, that the rule must also “ ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Id. (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060). Inasmuch as the Court found that Caldwell failed to meet this latter requirement, it affirmed the Fifth Circuit’s denial of the writ. Sawyer, 497 U.S. at 242, 110 S.Ct. 2822.
In addition, the Supreme Court has found it unlikely that a new rule will emerge in modern jurisprudence which alters our understanding of the criminal procedure essential to the accuracy and fairness of a trial. See Teague, 489 U.S. at 313, 109 S.Ct. 1060 (finding that it is “unlikely that many such components of basic due process have yet to emerge”). Accordingly, the new rule purported here fails to alter our basic understanding of the “bedrock procedural elements” essential to the fairness of the proceeding, particularly where this Court has found that a similar new rule did not fall under this narrow exception and where it is rare to find such a rule in today’s jurisprudence.
The “[ajpplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Teague, 489 U.S. at 309, 109 S.Ct. 1060 (citing Friendly, Is Innocence Irrelevant'.I Collateral Attacks on Criminal Judgments, 38 U.Chi.L.Rev. 142, 150 (1970)). Perhaps Justice Powell best summarized the improvidence of advancing *343new rules on collateral review in his con-currenee in Solem:
Retroactive application on habeas corpus of constitutional rules governing criminal procedure is unnecessary to advance the purposes of habeas corpus, even under a regime that permits the federal courts on habeas to vacate a final conviction on any properly preserved ground of federal constitutional error. Review on habeas to determine that the conviction rests upon correct application of the law in effect at the time of conviction is all that is required to “forc[e] trial and appellate courts ... to toe the constitutional mark.” Nor will fundamental fairness require complete retro-activity, except in rare instances. Because retroactive application of new rules of constitutional law generally does little to advance the purposes of collateral relief on habeas, it is particularly difficult in such cases to justify imposing upon the state the costs of collateral review. These are not insubstantial. They include “the burden on judicial and prosecutorial resources entailed in retrial” and “the miscarriage of justice that occurs when a guilty offender is set free only because effective retrial is impossible years after the offense.” Retroactive application of constitutional rules frustrates the state’s enforcement of its criminal law despite the state’s careful adherence to the federal constitutional standards that governed at the time of the prisoner’s conviction.
Solem, 465 U.S. at 653-54, 104 S.Ct. 1338 (Powell, J., concurring) (citations and footnotes omitted). For the reasons set forth herein and best summarized by Justice Powell, retroactive application of the new rule proposed by Petitioner is barred by Teague v. Lane.
c.
In the dissent, Judge Moore begins her analysis with the presumption that “the state, like any other litigant, loses a defense it fails to raise,” and notes that “[t]his presumption is consistent with our general approach to waivers of claims and defenses in civil litigation, and is consistent with our strict enforcement of the procedural requirements imposed on criminal defendants and habeas petitioners.”11 However, in making this presumption, and ultimately finding that the state waived its Teague defense, Judge Moore fails to hold Petitioner to this presumptive standard. In other words, Judge Moore focuses on the state’s failure to raise the exhaustion and Teague defenses; however, in doing so, she palliates Petitioner’s failure to exhaust his state court remedies on his evidentiary claim, as well as what would likely be his apparent procedural default. Therefore, it appears that Judge Moore is using the procedural requirements in this case as both a sword and a shield, where she holds the state and Petitioner to a double standard. On the one hand she excuses the Petitioner’s failure to exhaust his state court remedies and apparent procedural default; and yet, on the other hand, she refuses to excuse the state’s failure to raise the exhaustion and Teague defenses. Under the facts of this case, such an outcome is particularly unsettling.
Furthermore, when applying the factors such as federalism, comity, and finality to determine whether to apply Teague sua sponte in this case, as suggested by Judge Moore, it is clear that these factors weigh in favor of Teague’s, application. As noted *344in Section L, there are strong comity concerns in this case, and it would serve in the best interests of finality to apply Teague inasmuch as the district court itself — the court which granted Petitioner’s application for the writ — found that there is a strong likelihood of reconviction here. This is likewise true for the factor that Judge Moore believes weighs particularly in favor of declining to apply Teague sua sponte — the interests of justice. Judge Moore notes in her dissent that the interests of justice include “actual innocence, whether the proper resolution of the merits of the claim is clear, and whether the district court granted habeas relief.” However, a thorough application of these factors weighs in favor of applying Teague here. First, as noted, there is a strong likelihood that Petitioner would be convicted of this crime again; therefore, his innocence is highly questionable. Second, the resolution of the merits of Petitioner’s claim is far from clear as indicated by the case law from the several jurisdictions which allow the use of the statistical data in question. See State v. Hartman, 426 N.W.2d at 329 (collecting cases from jurisdictions which allow the use of the statistics in question). Third, although it is true that the district court granted habeas relief, it also refused to release Petitioner from prison pending this appeal. Accordingly, in the interests of justice, Teague should be applied sua sponte in this case.12
CONCLUSION
In summary, because Petitioner failed to exhaust his state remedies regarding the legal basis upon which the evidentiary claim is made in federal court, this case is not properly before us on habeas review. However, in the interest of judicial economy, we will excuse the lack of exhaustion because Petitioner’s evidentiary claim is barred under the doctrine of Teague v. Lane, and thus dispositive of this case.
Accordingly, the district court’s order granting Petitioner’s writ of habeas corpus is REVERSED.
. Judge Clay writes for the majority in reversing the district court's order granting Petitioner's application for writ of habeas corpus, and is joined by Judge Gilman in Parts I.A., II.B., and II.C. of the majority opinion.
. The genetic markers were described to the jury as "attributes that we inherit from our parents much like eye color, hair color, but they are invisible factors in the blood that we can detect with laboratory tests.” (J.A. at 360, testimony by Dr. Walker.)
. Specifically, Petitioner framed his question presented on this issue in his brief to the Michigan Court of Appeals, as well as in his brief for application for leave to appeal to the Michigan Supreme Court, as follows:
Whether defendant was deprived of his right to due process and to a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution 1963 when the trial court admitted into evidence over objection testimony concerning the statistical probability of defendant’s paternity of the child.
Brief for Defendant-Appellant on Appeal to the Michigan Court of Appeals at v, 20-29, People v. Lyons, No. 147006 (Mich. Ct.App. April 13, 1994); Brief for Defendant-Appellant on Application for Leave to Appeal to the Michigan Supreme Court at vii, 38-46, People v. Lyons, No. 99452 (Mich. Jan. 13, 1995). Furthermore, in the body of his briefs to the Michigan appellate courts, Petitioner argued that his right to due process and a fair trial was violated solely on the basis that the evidence was more prejudicial than probative. See id.
Although Petitioner’s briefs which were submitted to the state appellate courts were not included in the Joint Appendix submitted in connection with this appeal, it is well-settled that "[fjederal courts may take judicial notice of proceedings in other courts of record” and we have done so here by obtaining Petitioner's state appellate briefs from the Michigan appellate courts. See Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir.1969) (collecting cases), cert. denied, 397 U.S. 1065, 90 S.Ct. 1503, 25 L.Ed.2d 686 (1970); see also Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.1980).
. Petitioner does not claim that the alleged violation of his presumption of innocence infringed upon his Fourteenth Amendment right to a fair trial. Rather, Petitioner’s habe-as claim on this issue is based solely on the alleged violation of his presumption of innocence, standing alone. Because this Court will grant habeas relief only when the petitioner demonstrates actual prejudice in a state court proceeding to the extent that his trial “was rendered fundamentally unfair by a violation of the Constitution,” Norris v. Schotten, 146 F.3d 314, 323 (6th Cir.1998), in Judge Clay's view, it is questionable whether Petitioner's evidentiary claim, even if considered on the merits and found to be meritorious, would constitute grounds for reversible error because the presumption of innocence is not, in and of itself, an express constitution*333al right. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979).
. Under Michigan law, Petitioner has procedurally defaulted on his evidentiary claim inasmuch as he “may not file an application for leave to appeal from a judgment of conviction and sentence if [he] has previously taken an appeal from that judgment by right or leave granted or has sought leave to appeal that was denied.” Mich. Ct. R. 7.205(F); see Harris v. Reed, 489 U.S. 255, 269-70, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (O'Connor, J„ concurring) (stating that "where a claim raised on federal habeas has never been presented to the state courts at all, ... federal courts quite properly look to, and apply, state procedural default rules in making the con-gressionally mandated determination whether adequate remedies are available in state court”); see also Lambrix v. Singletary, 520 U.S. 518, 522-25, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (noting that "[a] State's procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system,” and therefore, it is wise to consider a procedural bar first in adjudicating a habeas petition except where judicial economy would be served in giving a Teague issue priority). Because Petitioner previously appealed his conviction as of right to the Michigan Court of Appeals and filed an application for leave to appeal to the Michigan Supreme Court, he would be procedurally barred from appealing his evidentiary claim to the Michigan appellate courts at this time. See Mich. Ct. R. 7.205(F). As such, further review of his claim in the federal system would be barred in the absence of cause and prejudice. See Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). See discussion infra Part I.B.
. The "new rule” of law the petitioner in Cain sought to be retroactively applied was that espoused by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); namely, that jury instructions containing a presumption indicating that one intends the consequences of his voluntary actions are unconstitutional because they abridge the principles of presumption of innocence and allocation of burden of proof thereby depriving a defendant due process of law. See Cain, 947 F.2d at 819-22. Petitioner in the instant case seeks retroactive application of a similar new rule based upon an abridgment of the presumption of innocence.
. Although the state had raised its Teague claim as applied to the procedural due pro*337cess claim in the district court, it did not raise or argue its application to the legally distinct substantive due process claim at the district court level. Goeke, 514 U.S. at 118, 115 S.Ct. 1275.
. Furthermore, irrespective of the state's preservation of its Teague defense, based upon the new rule proposed by Petitioner, if ever there was a time for this Court to raise and decide a Teague claim sua sponte, surely it is here. See Caspari, 510 U.S. at 389, 114 S.Ct. 948 (citing Schiro v. Farley, 510 U.S. 222, 228-29, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)) (“a federal court may, but need not, decline to apply Teague if the State does not argue it,” i.e., a federal court’s decision whether to apply Teague when not raised by the state is discretionary).
. It is undisputed that this exception is inapplicable here. The new rule proposed by Petitioner, that the use of evidence that assumes a statistical probability of guilt violates the presumption of innocence, does not "decriminalize” any class of proscribed conduct. See Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993).
. Petitioner criticizes the Michigan Court of Appeals opinion in this case claiming that the case law upon which the court relied in adjudicating this issue was inapposite. See People v. Lyons, No. 147006, slip op. at 2 (Mich. Ct.App. April 13, 1994) (J.A. at 133-34). Petitioner argues that: "Inexplicably, the Michigan Court of Appeals failed to recognize any of the problems inherent in the State’s probability testimony,” and notes that the case relied upon by the court did not involve the probability of paternity statistics nor the presumption of innocence. However, as noted at the outset of this opinion, Petitioner never raised the presumption of innocence violation at the state court level. His claim before the state appellate courts on this issue was strictly based upon the contention that the evidence was more prejudicial than probative, thereby denying him of his right to a fair trial. As such, the Michigan court’s failure to address the claim on the grounds that the evidence infringed on Petitioner's presumption of innocence is quite "explicable.”
. Notably, the new statutory requirement in the Antiterrorism Effective Death Penalty Act of 1996 ("AEDPA"), that “[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement,” casts doubt upon Judge Moore’s presumption that a state loses a defense that it fails to raise, at least as it pertains to habeas petition from a state court prisoner. See 28 U.S.C.A. § 2254(b)(3) (West Supp.1998). However, the AEDPA does not apply to Petitioner here because he filed his petition for writ of habeas corpus prior to the enactment of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
. Indeed, it may be argued that in enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress somewhat codified Teague to the extent that under the auspices of the AEDPA, federal habeas review is limited to determining whether a state court's decision on the merits of a petitioner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” See 28 U.S.C.A. § 2254(d)(1) (West Supp.1998). As such, it appears that the trend in the law in reviewing a state prisoner’s habeas petition is to apply Teague. See id.