90
Opinion of the Court
Circuit clearly was not 'required' to sua sponte invoke procedural default." Brief for Respondent 16-17.
Louisiana, however, would like us to go beyond the question presented and hold that the law permitted (though it did not require) the Fifth Circuit to raise the procedural default sua sponte. Cf. Granberry v. Greer, 481 U. S. 129, 133-134 (1987) (appellate court may raise sua sponte petitioner's failure to exhaust state remedies). We recognize some uncertainty in the lower courts as to whether, or just when, a habeas court may consider a procedural default that the State at some point has waived, or failed to raise. Compare Esslinger v. Davis, 44 F. 3d 1515, 1525-1528 (CA11 1995) (sua sponte invocation of procedural default serves no important federal interest), with Hardiman v. Reynolds, 971 F. 2d 500, 502-505 (CA10 1992) (comity and scarce judicial resources may justify court raising state procedural default sua sponte); see also J. Liebman & R. Hertz, 2 Federal Habeas Corpus Practice and Procedure § 26.2, pp. 814-817 (1994) (citing cases). Nonetheless, we do not believe this is an appropriate case in which to examine that question for several reasons. First, the Fifth Circuit's opinion contains language suggesting the court believed that, despite Louisiana's failure to raise the matter, Circuit precedent required the court (and did not simply permit the court) to consider a potential procedural default. See, e. g., 94 F. 3d, at 1007 ("[T]his court's decision in Sones v. Hargett . . . precludes us from reviewing the merits of Trest's habeas challenge").
Second, the language of the question presented in Trest's petition for certiorari, as well as the arguments made in his petition, made clear that Trest intended to limit the question in the way we have described. Yet Louisiana in its response did not object or suggest alternate wording. Nor did Louisiana ask us to consider the question in any broader context.
Third, we cannot now easily answer the broader question in the context of this case, for we are uncertain about mat-
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