concurring in part.
I concur in the end result reached by Judge Clay as well as in the analysis set forth in Parts I.A., II.B., and II.C. of his opinion. Because I believe that the state waived its Teague defense in this case, however, I disagree with the analysis as set forth in Part II.A. of his opinion.1 In addition, I decline to join in Judge Clay’s analysis as set forth in Part I.B. because I find it unnecessary to address hypothetical circumstances that are not present in the instant case.
I. Waiver of the Teague defense
Relying primarily on Goeke v. Branch, 514 U.S. 115, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995) (per curiam), Judge Clay concludes that the state properly preserved its Teague defense. According to Judge Clay, Goeke held that “a federal court’s application of Teague is mandatory, even when raised for the first time at the first hearing on appeal.” I believe that Judge Clay has misapprehended the Goeke holding. The habeas petitioner in Goeke argued in the district court that the state court’s dismissal of her appeal, based upon Missouri’s fugitive dismissal rule, constituted a violation of due process. This *345argument was construed by the district court as a procedural due process claim. In response, the state argued that the petitioner’s claim was barred by Teague: “In the District Court, the State argued that respondent’s due process claim is barred from litigation in federal habeas corpus unless the Court could say, as a threshold matter, that it would make its new rule of law retroactive. Teague v. Lane.” Id. at 117, 115 S.Ct. 1275 (internal quotation marks omitted). The state again raised the Teague defense on appeal, noting that it had also raised this defense at the district court. See id. The Eighth Circuit, after relabeling the petitioner’s due process argument as substantive rather than procedural, ultimately held that the state had waived the Teague defense, and addressed the merits of the case. See id.
The Supreme Court reversed the Eighth Circuit’s opinion, holding that the state had properly preserved its Teague defense. See id. at 118, 115 S.Ct. 1275. Contrary to Judge Clay’s interpretation, the Court did not hold that the state could assert this defense for the first time on appeal. Rather, the Court clearly indicated that Teague was raised at both the district and appellate levels in response to the same issue, regardless of whether it was characterized as procedural or substantive. See id. at 117-18, 115 S.Ct. 1275. The Court’s statement that “[t]he State’s efforts to alert the Eighth Circuit to the Teague problem provided that court with ample opportunity to make a reasoned judgment on the issue,” id. at 118, 115 S.Ct. 1275, is therefore not inconsistent with the undisputed fact that the state first asserted its Teague defense at the district court level.
Judge Clay acknowledges that the Teag-ue defense in Goeke was first raised in the district court, but argues that the substan-tiative due process claim presented on appeal was “legally distinct” from the procedural due process claim presented in the district court. I respectfully disagree. The petitioner in Goeke raised the same issue — that the state court’s dismissal of her appeal based upon Missouri’s fugitive dismissal rule constituted a violation of due process — at both the district and appellate levels. In response, the government raised the Teague defense at both stages of the habeas litigation. I thus find no support in Goeke for the proposition that the Teague defense is properly preserved when raised for the first time on appeal. Nor did the court in Goeke face such a situation. In contrast, the state in the present case did not raise the Teague defense at all until the case reached the appellate level. Goeke, therefore, is not controlling.
In his opinion, Judge Clay cites two cases that he argues are supportive of his interpretation of Goeke — Ciak v. United States, 59 F.3d 296 (2d Cir.1995), and Williams v. Dixon, 961 F.2d 448 (4th Cir.1992). In Ciak, the Second Circuit stated that the Teague defense was waived because the state “did not argue in its brief or at oral argument that Teague bar[red] application" of the new rule. 59 F.3d at 302. Similarly, the Fourth Circuit held in Williams 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.” 961 F.2d at 459.
Judge Clay draws an inference from these statements that both the Second and the Fourth Circuits would have held that the state had preserved its Teague defense even if raised for the first time on appeal. I, on the other hand, find that the above-quoted statements provide faint support for such an inference. Both cases in fact held that the state had waived its Teague defense when belatedly raised for the first time on appeal, and neither faced the factual situation presently before us. Moreover, the Williams court specifically stated that “a state’s failure to raise [its Teague defense to] the issue of retroactivity below constitutes waiver of that defense.” Id.
*346I also note that both Ciak and Williams are cases from other circuits, and are therefore considered only for their persuasive value. As stated above, I do not find them persuasive for the proposition urged by Judge Clay. More importantly, this court has spoken on the very point at issue in Sinistaj v. Burt, 66 F.3d 804 (6th Cir.1995). In Sinistaj, this court held that the state had waived its Teague defense by raising it for the first time in a motion to amend the district court’s judgment. See id. at 805 n. 1. Logic dictates that if the Teague defense is waived when raised for the first time in a motion to amend the district court’s judgment, it is certainly waived when raised for the first time at the appellate level. Sinistaj is therefore the controlling precedent in this circuit and is determinative of the present case.
For all of the reasons stated above, I would find that the state has waived its Teague defense.
II. Sua sponte application of the Teag-ue defense
Although the Teague defense was not properly preserved by the state, we may exercise our discretion to raise the defense sua sponte. See Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (“[A] federal court may, but need not, decline to apply Teague if the State does not argue it.”). In making the determination of whether to apply the Teague principle sua sponte, we should primarily focus on the fundamental policies underlying Teague. The Supreme Court has held that, with two narrow exceptions, a criminal defendant may not benefit from a new rule of constitutional law after direct review of his or her case. See Teague, 489 U.S. 288, 305-10, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This ruling is based upon the “interests of comity and finality.” Id. at 308, 109 S.Ct. 1060. The habeas corpus process should “protect the finality of state court judgments and ensure comity between the federal and state court systems.” Jones v. Page, 76 F.3d 831, 850-51 (7th Cir.1996); see also Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.1999) (“In the interests of finality and judicial economy, we choose to exercise our discretion and consider whether [petitioner’s] claim is barred.”). In light of these fundamental principles, I believe that a federal court should presumptively apply the Teague analysis sua sponte whenever a defendant tries to raise a new constitutional rule for the first time on collateral review.
This presumption, however, is not irre-buttable, and a federal court must consider whether the concerns of finality, federalism, and comity support Teague’s application on a case-by-case basis. For instance, a federal appellate court should be particularly vigilant to any indication that the state intentionally neglected to raise the Teague defense at the district court level in the hope of getting a favorable determination on the merits, with the idea that it could then raise the issue for the first time at the appellate level if the ruling on the merits was adverse to its interests. Permitting such a practice would allow the state to “sandbag” the appellate court and benefit from its own strategic pleading. In the present case, however, there is no indication that the state is sandbagging this court.
Although Judge Moore agrees that courts may raise the Teague defense sua sponte, she argues that courts should not invoke the defense sua sponte unless there are particularly strong reasons to overlook the state’s neglect. In support of her position, she cites various cases in which this court has declined to raise the defense in the face of the state’s waiver. See Coe v. Bell, 161 F.3d 320, 337 n. 1, 339 n. 3 (6th Cir.1998), petition for cert. filed, No. 98-9606 (May 24, 1999); Sinistaj v. Burt, 66 F.3d 804, 805 n. 1 (6th Cir.1995); Kordenbrock v. Scroggy, 919 F.2d 1091, 1104 n. 4 (6th Cir.) (en banc), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991). These cases, however, fail to provide any analysis or reasoning for the *347court’s decision not to raise the Teague defense sua sponte, and thus provide us with little guidance.
Furthermore, I disagree with the implication in Judge Moore’s dissent that courts rarely if ever raise the defense sua sponte. The Teague rule itself was not briefed by the parties and yet was fashioned by the Supreme Court sua sponte. Moreover, the defense has been raised by courts sua sponte in subsequent cases, including Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.1999), and Spaziano v. Singletary, 36 F.3d 1028, 1041-42 (11th Cir.1994). See James S. Liebman, More than “Slightly Retro:” The Rehnquist Court’s Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537, 635 n. 247 (1990-91).
Judge Moore further argues that it is particularly unfair for the court of appeals to apply Teague once another federal court has declared that a constitutional violation has occurred. I respectfully disagree for two reasons. First, the entire thrust of Teague is to limit the issues that can be raised on habeas review, irrespective of the “fairness” of the outcome. Second, Congress expressed a policy choice in enacting AEDPA, as partially codified in 28 U.S.C. § 2254(d)(1), to have the public interest in finality outweigh a criminal defendant’s interest in gaining the benefit of a new constitutional rule. See 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 30.2c, at 1240-41 (3d ed. 1998) (“In this way, section 2254(d)(1) ... makes the state court ‘decision,’ and not the petitioner’s ‘independent’ complaint, the focus of the federal court review ... [Selection 2254(d)(1) unqualifiedly limits federal review to legal rules that actually were in effect when the state court decided the case ... ”) (emphasis in original); see also Zuern v. Tate, 938 F.Supp. 468, 475-76 (S.D.Ohio 1996) (“Congress intended by [§ 2254(d)(1)] to shield convictions which complied with federal law when entered from reversal by later habeas courts applying ‘new’ law.”).
To the extent that the Supreme Court considered “fairness” in its Teague decision, such concern was encapsulated in the analysis itself that allows a habeas corpus defendant to gain the benefit of a new constitutional rule if the rule either (1) “places a class of private conduct beyond the power of the State to proscribe” or (2) is one of the “ ‘watershed rules of criminal procedure’ impheating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, 494 U.S. at 494-95, 110 S.Ct. 1257 (citing Teague, 489 U.S. at 311, 109 S.Ct. 1060).
For these reasons, I believe that the presumption in favor of the sua sponte application of Teague should apply in the instant case. Once raised, I concur with Judge Clay’s conclusion in Part II.B. that retroactive application of the new constitutional rule Lyons proposes is barred by Teague.
. Because Judge Moore concurs in the analysis set forth in Part I below, this reflects the panel's majority opinion as to the issue there discussed.