The opinion
TJOFLAT, Circuit Judge,
dissenting:
The court today violates the Supreme Court’s “total exhaustion” rule of Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982), by entertaining the merits of a habeas corpus petition that presents both exhausted and unexhausted claims. I therefore dissent.
I.
28 U.S.C. 2254(b) and (c) (1976) states:
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented, (emphasis added).
In Galtieri v. Wainwright this court held, en banc, that “a federal district court must dismiss without prejudice a ‘mixed’ petition for a writ of habeas corpus [i.e., one containing both exhausted and unexhausted claims] filed by a state prisoner” 1 and that state habeas corpus “petitioners must present all their claims to the state court system before turning to the federal courts.” 2 The Supreme Court subsequently held in Rose v. Lundy that federal district courts must dismiss mixed petitions summarily, 3 and that federal courts of appeals may not review any claims that have been presented in a mixed petition to the district court.
The district court in this case was bound by the statute and our holding in Galtieri. 4 Nevertheless, the district court entertained, on the merits, a twenty-six count petition containing a plethora of unexhausted claims. 5 See infra at 1534-1536. The panel that initially considered this appeal was precluded by Rose and the statute from considering the merits of any of petitioner’s claims. Like the district court, the panel ignored its clear duty to dismiss the petition for want of exhaustion. Today the court, sitting en banc, repeats this error.
II.
The record shows that, after his trial, petitioner unsuccessfully brought eight *1534 claims of error on direct appeal to the Florida Supreme Court, 6 and three claims on collateral attack. 7 The Florida Supreme Court’s opinions disposing of these appeals do not indicate whether petitioner presented these claims of error under the federal Constitution or state law. 8 In any event, the Florida Supreme Court rejected these claims.
On May 21, 1979, petitioner commenced these habeas corpus proceedings in the district court. His petition contained two federal constitutional claims: (1) prosecutorial misconduct and (2) improper pretrial identification. The State answered his petition on May 22, and conceded that these two claims had been exhausted. On July 5 the State moved the court for leave to propound interrogatories to petitioner, indicating that in order to avoid abuse of the writ problems “now is the proper time to fully litigate and resolve all justiciable issues .. . petitioner would be well advised to present all claims at this time....” 9 Petitioner answered the interrogatories and amended his petition to add an ineffective assistance of counsel claim under the sixth and fourteenth amendments. On September 7 petitioner supplemented his answer to the State’s interrogatories, listing twenty-three additional federal constitutional claims, for a total of twenty-six. 10 The parties then *1535 stipulated on September 14 that the twenty-three additional claims should be included in petitioner’s habeas petition. On the same day the magistrate to whom the district court had referred the case entered an order noting that “[t]he Petitioner has added additional claims for habeas corpus relief without objections of the [State], and [the State] has waived any claim that Petitioner has failed to exhaust state court remedies as to any claims presented.” The State then answered these claims on the merits. The magistrate, and subsequently the district court, addressed each of petitioner’s claims on the merits.
Assuming that the eleven claims petitioner presented to the Florida Supreme Court on direct appeal and on collateral attack were claims of federal constitutional error, 11 petitioner raised three types of claims in the district court: claims presented on the merits to the state courts and exhausted; 12 claims not presented to the state courts but — because of some sort of procedural abandonment — no adequate state remedy remained; 13 and claims not presented to the state courts for which state court adjudication on the merits remained available. 14 The district court could properly entertain the first and second categories of petitioner’s claims if they were all the petition contained. 28 U.S.C. § 2254 (b) (1976). The petition, however, contained claims from the third category. These claims, at least nine in number, were unexhausted and would have presented a justiciable controversy in the state courts. The petition was thus a “mixed” one. Anything but a summary dismissal of a mixed petition disregards Rose v. Lundy, the statute, and the *1536 compelling policy arguments behind the statute. This Court has placed itself in the same posture as the Sixth Circuit, which was reversed in Rose v. Lundy.
III.
The plain words of sections 2254(b) and (c) and Rose v. Lundy forbid the entertainment of petitioner’s appeal on the merits. See discussion infra text at 1543-1544. Moreover, the express language of the statute and Rose leave no room for a state attorney general’s waiver of exhaustion. But see Thompson v. Wainwright, 714 F.2d 1495, 1497 (11th Cir.1983). See discussion infra text at 1539-1543. It is true that the drafters of the statute and the authors of Rose , and Galtieri, did not expressly consider whether a state attorney general could waive the exhaustion requirement found in sections 2254(b) and (c); the policy reasons behind the exhaustion rule preclude such a waiver, however, and require us to dismiss the petition.
Exhaustion in state prisoner habeas proceedings was developed a century ago as a consideration of comity, an equitable notion that federal courts hearing state prisoner claims should exercise discretion
in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.
Ex parte Royall, 117 U.S. 241, 251 , 6 S.Ct. 734, 740 , 29 L.Ed. 868 (1886). The courts later refined this concept into the rule that state remedies must be exhausted except in certain limited circumstances. See Rose, 455 U.S. at 515 , 102 S.Ct. at 1202 (citing cases). In 1948, Congress codified this rule in 28 U.S.C. § 2254 . The exhaustion rule found in sections 2254(b) and (c), based on notions of comity, places limitations on the federal courts’ exercise of habeas corpus jurisdiction. It states:
(b) An application for a writ ... shall not be granted unless it appears that the applicant has exhausted ....
(c) An applicant shall not be deemed to have exhausted ... if he has the right under the law of the State to raise, by any available procedure, the question presented, (emphasis added).
These limitations are cast in mandatory, obligatory language. Following a total exhaustion rule does more than further notions of comity, it complies with the dictates of Congress.
Congress codified the exhaustion rule because of the advantages it presents in managing our dual court systems. Exhaustion of state remedies furthers federalism by maintaining the delineation between federal and state court systems and ensuring federal respect for state courts. Comity has been defined as giving proper deference to states, 15 but comity in a federal system cuts both ways; the states may not impose on the federal courts the primary task of reviewing its criminal convictions. The exhaustion rule furthers the efficient working of both federal and state courts.
A. The Exhaustion Rule and State Courts
The strict exhaustion rule defined by Rose v. Lundy furthers a number of interests of the state court systems. First, it pays great respect to state courts, recognizing the integrity of the state court system and its need to assure a complete disposal of each case presentable to it. State judges, just like federal judges, are sworn to uphold the Constitution. The exhaustion rule recognizes this fact by permitting the state system to be the first to adjudicate on the merits each claim a petitioner may later seek to bring into federal court.
*1537 Second, exhaustion ensures that state courts may entertain and decide constitutional claims without interference by federal district courts. 16 See Duckworth v. Ser rano, 454 U.S. 1, 2 , 102 S.Ct. 18, 19 , 70 L.Ed.2d 1 (1981) (per curiam) (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”). As the Supreme Court stated in Engle v. Isaac, 456 U.S. 107, 128 , 102 S.Ct. 1558, 1571 , 71 L.Ed.2d 783 (1982), “[t]he States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good faith efforts to honor constitutional rights.” Cf. Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971) (federal court must normally abstain from deciding issues implicated in ongoing criminal proceedings in state court).
Third, exhaustion enables state courts to address the prisoner’s claims in light of state evidentiary, procedural, and substantive law. This permits the courts to ensure a uniform and accurate application of state law, which in many instances may remove the federal constitutional claims altogether. Even where state law is not dispositive of the case, it is still preferable for the state courts to act first. This enables them to become increasingly familiar with and hospitable toward federal constitutional issues. 17 The need for state court familiarity with federal constitutional principles has grown especially acute given the marked development of criminal procedural rules in recent times. 18
Finally, the total exhaustion required by Rose v. Lundy enhances the possibility that the state court will satisfactorily resolve the petitioner’s constitutional claims and bring his criminal case to a close. Such finality not only preserves the dignity of state courts, but aids deterrence, and assists rehabilitation. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 146 (1970); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 444-62 (1963). It also reduces some of the “significant costs” of the Great Writ. 19
B. The Exhaustion Rule and Federal Courts
Federalism is a two-way street. The concepts of comity and federalism behind the exhaustion rule benefit federal courts as well as state courts. 20 The rule requires a petitioner first to flush out all of his claims in state court, either on direct appeal or collateral attack. Collateral attacks usually occur relatively close in time to the trial; 21 *1538 memories are sharper, and witnesses and evidence are more likely to be available. Thus by the time a petitioner’s constitutional claims reach federal court, the historical facts that underpin his claims should have been ascertained. Accord, Rose, 455 U.S. at 519 , 102 S.Ct. at 1203-04. The state court’s findings of fact are so important to the federal courts that they will be presumed correct, and may well avoid the need for an evidentiary hearing in the district court. 28 U.S.C. § 2254 (d) (1976). This is precisely the opposite of what happened in the case before us. The state courts had no chance to develop the facts that gave rise to many of petitioner’s claims because these claims did not materialize until petitioner arrived in federal court.
The federal courts also benefit from state court treatment of federal constitutional claims in their established factual setting. Such treatment obviously reduces the potential for erroneous decision making at the federal level, and thus improves the quality of justice. 22
The total exhaustion of a petitioner’s claims should lessen the number of his claims that reach the district court. State courts will ferret out and identify the patently meritless claims. Some federal constitutional claims will be decided on the merits for petitioner and thereby precluded from habeas corpus review. Still others will be decided for the petitioner upon adequate state law grounds. In this last instance, the result of strict exhaustion is akin to Pullman abstention, 23 which enables a federal court to avoid the constitutional adjudication of the validity of state law if the law can be read by the state courts to eliminate the constitutional question from the case.
The total exhaustion rule of Rose aids the district courts because it is far easier and more efficient to administer than a rule, such as the one promulgated by Thompson v. Wainwright, 714 F.2d 1495 (11th Cir. 1983), and Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983), which authorizes a district court to entertain a mixed petition whenever the State waives the exhaustion requirement and the court is inclined to hear the merits of the petitioner’s claims. See infra text at 1540-1543. First, the total exhaustion rule is easy for habeas petitioners to follow. As the Court stated in Rose : “§ 2254(b), (c) [provides] a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” 455 U.S. at 520 , 102 S.Ct. at 1204 (emphasis added). The rule also provides a clear instruction to magistrates and district court judges: mixed habeas petitions must be dismissed summarily. See id. at 520, 102 S.Ct. at 1204 (requiring “strict enforcement of the exhaustion requirement”); id. at 527,102 S.Ct. at 1207 (Black-mun, J., concurring in judgment) (interpreting majority to hold that district court must dismiss entire petition); see also Galtieri, 582 F.2d at 355-56. As Justice Brennan stated in his partial concurrence in Rose , “the exhaustion requirement of 28 U.S.C. §§ 2254 (b), (c) obliges a federal district *1539 court to dismiss, without consideration on the merits, a habeas corpus petition from a state prisoner when that petition contains claims that have not been exhausted in the state courts. 24
This simple, clear, and unyielding rule, when combined with habeas rule 9, 25 means that in the great majority of cases a petitioner must swiftly bring all his claims to the district court in one petition, and all the claims must be exhausted. Galtieri, 582 F.2d at 356-358. These claims, presented first in state court, are likely to be well focused and developed, and the district court can swiftly and accurately adjudicate all constitutional issues. As the Rose Court said, “[rjather than increasing the burden on federal courts, strict enforcement of the exhaustion requirement will encourage ha-beas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition.” 26 A rigorously enforced exhaustion requirement, when combined with- habeas rule 9, will reduce piecemeal litigation, and “both the courts and the prisoners should benefit, for as a result the district court will be more likely to review all of the prisoner’s claims in a single proceeding, thus providing for a more focused and thorough review.” 27 As the en banc court said in Gal-tieri, “[cjonsiderations of comity, 28 avoidance of piecemeal litigation, economy of judicial energy, and the fullest consideration of a petitioner’s claims are best served if all of a petitioner’s claims are presented to the state court system at one time.” 582 F.2d at 356.
C. Waiver of Exhaustion
Two recent decisions of this court have placed the eleventh circuit among the minority of federal judicial circuits that permit the district court or the court of appeals to entertain on the merits a mixed petition whenever the State’s counsel (usually the attorney general) explicitly waives the petitioner’s failure to exhaust all of his claims. Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983); Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983). 29 With due re *1540 spect to the panels in those cases, their holdings were plainly foreclosed by Rose v. Lundy. Today’s case presents this court with an opportunity to set aside those holdings and bring this circuit into compliance with the law.
Thompson held that a district court could, in its discretion, accept or reject the State’s waiver of exhaustion. Thompson relied in part on Westbrook ; it also cited a number of our cases, including prior fifth circuit opinions, in which we considered mixed petitions on the strength of the State’s explicit or implicit waiver of exhaustion. 714 F.2d at 1501 . The Thompson court, in particular, proceeded on the assumption that Rose had not decided the waiver question and reasoned that because comity, the basis for exhaustion, was founded on the relation between federal courts and the states (not merely state courts), comity would not be injured by permitting the attorney general to waive exhaustion on behalf of the State. The court perceived no injury because the Florida Attorney General, as “ ‘the chief state legal officer’ of the executive department,” had the authority to speak for the state and for its court system, as well.
To me, the Thompson rationale is contrary to the clear import of Rose, Galtieri, and the statute. Moreover, it will lead district courts to disregard the policies behind the exhaustion rule, and it will create mischief of its own accord.
First, I see no room in Rose , or Galtieri, for Thompson . Nowhere in any of the Rose opinions, even the dissent, is there even a hint that waiver is permissible. The Rose majority described its rule as a “rigorously enforced total exhaustion rule.” 455 U.S. at 518 , 102 S.Ct. at 1203. Thompson , however, holds that a district judge may enforce the rule only when he sees fit, 714 F.2d at 1509 ; thus, the rule will become neither rigorously enforced nor total. Justice O’Connor, for the Rose majority, and Justice Brennan, partially concurring, read the total exhaustion rule as requiring an immediate sua sponte dismissal of a mixed petition 30 and none of the other opinion writers in Rose differed with that view of the rule. Under Thompson , though, a district court is not required to dismiss a mixed petition sua sponte; rather, it may await the attorney general’s decision whether to insist on prior state court consideration of the unexhausted claims. If the attorney general decides to waive exhaustion, the district court must then address the question of whether it will keep the case or dismiss it.
The Thompson rule is also contrary to the statute, which limits the availability of relief to exhausted petitions and orders that no petition may be “deemed” exhausted unless there are no state remedies or other processes available to protect the petitioner’s rights. 28 U.S.C. § 2254 (b) & (c) (1976). As the third circuit held in United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir.1977), cert. denied, 435 U.S. 928 , 98 S.Ct. 1499 , 55 L.Ed.2d 524 (1978), “neither concession nor waiver relieves the federal court of its responsibility to decide only those habeas claims Congress has authorized it to hear under § 2254(b).... ‘Waiver,’ like ‘concession,’ is not a talisman, the incantation of which will cause the exhaustion requirement to disappear. That requirement remains.” 31
The waiver of exhaustion idea endorsed by Thompson is flatly refuted by Bergman v. Burton, 456 U.S. 953 , 102 S.Ct. 2026, 2027 , 72 L.Ed.2d 478 (1982), a post-Rose decision. In that case the district court dismissed *1541 without prejudice an unexhausted claim from a two-claim mixed petition. The State did not contest, either in the district court or the court of appeals, the district court’s authority to adjudicate the merits of the exhausted claim. See Burton v. Bergman, 649 F.2d 428, 429 (6th Cir.1981). Nonetheless, the Supreme Court, sua sponte, vacated the court of appeals’ judgment on the merits and remanded for dismissal in light of Rose. See discussion infra text at 1544. The Thompson and West-brook panels did not consider this case. 32
It is clear that Rose bars all mixed petitions. Even if Rose left the question open, there are manifold policy reasons why we should enforce this rule. First, Rose defined the exhaustion doctrine as one designed to aid state courts, not states generally. This much the Thompson panel conceded. 714 F.2d at 1507 n. 11. A state attorney general’s decision to waive the exhaustion requirement may not always be compatible with the interests of his own courts; this is no doubt why Rose provides no accommodation for an attorney general’s waiver. In a capital case, for example, where a death warrant has been issued and the petitioner’s execution is scheduled to take place in a matter of days, perhaps even hours, the attorney general, in the hope of avoiding a postponement of the execution, may “waive” the petitioner’s failure to exhaust all of his claims so that the petitioner’s case may be concluded and he can be executed. 33 This is what happened in this case; the attorney general “waived” the formal exhaustion of at least nine claims.
While such a tactic may suit the attorney general’s and the State executive department’s needs of the moment, it is likely to have a pronounced adverse effect on the needs of the state courts. See Galtieri, 582 F.2d at 358. By countenancing such a tactic, the district court may be interpreted as harboring a lack of respect toward the state judicial system and the view that state judges are not as capable of rendering correct constitutional decisions as are federal judges. As Professor Bator has noted, “nothing is more subversive of a [state] judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by [the federal court].” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 451 (1963). The district court also removes the state court as the primary locus for factfinding in post-conviction relief. 34
A second policy reason for requiring total exhaustion is that it will allow state courts to become more familiar and hospitable to constitutional claims of prisoners. In this circuit, for example, we have recently articulated new standards for judging sixth and fourteenth amendment ineffective assistance of counsel claims. 35 Were we now to commence entertaining such claims without *1542 exhaustion, we would deprive the state courts of the opportunity of becoming familiar with them and, moreover, of disposing of them on state substantive or procedural grounds.
Third, waiver damages the concept of finality in the state court system, with concurrent injury to the rehabilitation and general deterrence purposes of sentencing. 36 See supra text at 1537. The Supreme Court has admonished the federal habeas courts not to “detract from the perception of the trial of a criminal case in state court as a decisive and portentous event.” Wain wright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), cited in Galtieri, 582 F.2d at 359.
Fourth, permitting the district courts to litigate mixed petitions may impair the quality of constitutional decision making. A petitioner’s mere inclusion of unexhaust-ed claims, especially a proffer of evidence in support thereof, might influence the district court’s resolution of the exhausted claims. Accord, id. Such a scenario cannot occur if the district courts dismiss mixed petitions sua sponte, as mandated by Rose .
A fifth reason for requiring total exhaustion is to avoid the type of selective waiver by attorneys general permitted by Thompson and Westbrook . If the petition is assigned to a district judge with whom the attorney general is comfortable, a waiver will be likely; 37 if not, the attorney general may decide to move for dismissal for lack of exhaustion. Such subtle “judge shopping” would be unseemly at best. Any rule that would countenance it, however tacitly, deserves exacting scrutiny.
I foresee other shortcomings with the Thompson-Westbrook approach. One is that the entertainment of mixed petitions will, in time, promote substantial side issues, under habeas rule 9, concerning delayed and successive petitions. Assume that the petitioner brought a total of five claims, with only three exhausted. If previously the attorney general had consistently waived exhaustion but declined to do so in this case, the petitioner, if he desired to go forward with his exhausted claims, would have to amend his petition to dismiss the two unexhausted claims. Later, when he returned to the district court after exhausting the two claims, petitioner might well have a valid defense to the State’s assertion under habeas rule 9 that his claims were successive or unduly delayed. He would contend that his new petition should not be deemed successive because it was caused by a reasonable reliance on the attorney general’s waiver policy. He would contend that he should not be barred by delay because “the state, having [earlier] had notice of the claims, cannot establish prejudicial delay.” Galtieri, 582 F.2d at 358.
These rule 9 issues often involve difficult questions of fact, see Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963); the ones I have posed above could be quite time consuming. A policy that invites a petitioner to prosecute successive petitions, each asserting newly exhausted claims, not only impedes the orderly and complete consideration of his case in state court, it greatly impairs the efficiency of the federal habeas court to dispose of his claims. The Thompson-Westbrook rule also enables a district judge to hear both exhausted and unexhausted claims, even when the petitioner’s unexhausted claims ought to be handled by the state court first. 38 A *1543 rigorously enforced total exhaustion rule would remove the judge’s temptation to hear the case.
D. Noticing Exhaustion on Appeal
Galtieri held that the policy considerations counselling total exhaustion at the district court level were outweighed when this court was presented on appeal with exhausted claims from a mixed petition. We therefore declined to endorse a rule requiring dismissal on appeal of claims from a mixed petition, 582 F.2d at 361, adopting instead a flexible approach that would allow us to pass on the merits of the petitioner’s exhausted claims. This holding of Gal-tieri is no longer correct.
Rose v. Lundy commands “strict enforcement of the exhaustion requirement,” 455 U.S. at 520 ,102 S.Ct. at 1204, at all levels of habeas litigation and permits no flexibility. In his concurrence in the Rose judgment, Justice Blackmun noted that the appellate portion of Galtieri was inconsistent with the mandate of Rose . He stated, id. at 529 n. 7, 102 S.Ct. at 1209 n. 7;
Even the Fifth and Ninth Circuits, which require dismissal of mixed habeas petitions in the typical case, do not follow the extreme position the Court takes today .... The Fifth Circuit will review the merits of exhausted claims contained in a mixed petition if the District Court has considered those claims.
See Galtieri v. Wainwright, 582 F.2d 348, 361-362 (5th Cir.1978) (en banc). Justice Blackmun’s reading of Rose and Galtieri is correct. After Rose we may no longer review exhausted claims from a mixed petition.
The strong medicine Rose prescribes is quite understandable and, when one carefully considers the policies it seeks to vindicate, quite reasonable. This medicine was prescribed to bring an abrupt halt to the practice of the litigation of mixed petitions. In Galtieri , we instructed the district courts not to hear them. At the same time, we said that if they did hear and decide them, we would entertain them on appeal. As it turned out, we thus provided an atmosphere for the ad hoc litigation of mixed petitions and the sub rosa disregard of the very policies that we, in Galtieri , and the Supreme Court, in Rose , sought to further.
To “strictly enforce” Rose’s total exhaustion requirement and properly supervise the processing of habeas petitions by district courts in this circuit, we are bound to notice the lack of exhaustion sua sponte on appeal and to order the dismissal of mixed petitions. Any lesser course of action will not provide the rigor demanded by Rose , and will result in the continuing disregard of exhaustion policies that Galtieri seems to have spawned. The Supreme Court in Isaac, 456 U.S. at 123 n. 25, 102 S.Ct. at 1569 n. 25, strongly intimated that an appellate court that encounters an unexhausted claim is bound by Rose to dismiss the entire habeas petition. 39 Accord, Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983) (en banc); see also United States ex rel. Lockett v. Illinois Parole and Pardon Board, 600 F.2d 116, 118 (7th Cir.1979) (“We conclude that there is no bar to our raising the issue of exhaustion on our own, although it has not been raised by the State either in the district court or in the briefs on appeal.”) See discussion of Bergman v. Burton, infra text at 1544; see also Mattes v. Gagnon, 700 F.2d 1096 , 1098 n. 1 (7th Cir. 1983) (exhaustion raised sua sponte).
In Bowen v. Tennessee, supra, the en banc sixth circuit was presented with a case similar to this one, involving an appeal of exhausted claims from a mixed petition in which lack of exhaustion was waived. The panel had entertained the claims on the merits. The en banc court, following Rose’s command, reversed:
Wherefore, in light on [sic] the emphasis in Rose upon comity as protecting “the *1544 state courts’ role in the enforcement of federal law and prevent[ing] disruption of state judicial proceedings” [adding emphasis to Rose quote], this court concludes that the total exhaustion rule promulgated in Rose may not be waived or conceded in the district court by a state attorney general and may be noticed by this court sua sponte on appeal.
698 F.2d at 243 .
The sixth circuit’s holding was based on Duckworth v. Cowell, 455 U.S. 996 , 102 S.Ct. 1626 , 71 L.Ed.2d 858 (1982) and Rodriquez v. Harris, 455 U.S. 997 , 102 S.Ct. 1627 , 71 L.Ed.2d 858 (1982). In both of these cases the Supreme Court encountered exhausted claims from mixed petitions which the courts of appeals decided on the merits. The Court in each case granted certiorari, cited Rose , vacated the judgments, and remanded to the court of appeals “with directions that it instruct the [district court] to dismiss the petition for a writ of habeas corpus.” 455 U.S. at 996,102 S.Ct. at 1626; 455 U.S. at 997, 102 S.Ct. at 1627.
In Bergman, the Sixth Circuit Court of Appeals entertained on the merits an exhausted claim from a mixed petition; the district court dismissed the unexhausted claim without considering it on the merits. Burton v. Bergman, 649 F.2d 428, 429 (6th Cir.1981). The State did not, apparently, object to either court proceeding to the merits of the exhausted claim. The court of appeals directed that the writ issue on the exhausted claim. The State petitioned the Supreme Court for certiorari, presenting in its certiorari petition only the merits of the exhausted claim. The Supreme Court granted certiorari, vacated the judgment, and remanded “for further consideration” in light of Rose . As Justice Stevens, dissenting, stated,
The petition makes no reference to the unexhausted claim. Ignoring the four questions presented by the [State], the Court grants [its] petition, vacates the judgment of the Court of Appeals, and remands for reconsideration in the light of Rose v. Lundy.
Under Rose v. Lundy— if I read the Court’s opinion correctly — after the case gets back to the District Court, that Court must dismiss the habeas corpus petition that is now a part of the record.
102 S.Ct. at 2027-28 (Stevens, J., joined by Marshall and Blackmun, JJ., dissenting) (footnote omitted).
Bergman instructs us, plainly, that if we fail to notice a lack of exhaustion sua sponte, the Supreme Court may. By taking the step it did, the Court showed that a mixed petition with exhaustion implicitly waived requires remedial dismissal by any federal court which notices it. The en banc court should take such action today.
I realize that this seems to equate the exhaustion rule to a rule of subject matter jurisdiction. Exhaustion is not purely jurisdictional, because federal courts are granted subject matter jurisdiction to hear habe-as corpus claims from state prisoners by 28 U.S.C. § 2241 (c)(3) (1976). 28 U.S.C. §§ 2254 (b) and (c) (1976), however, limit the relief a district court may grant to those “applications” that present only exhausted claims. See supra text at 1533. Sections 2254(b) and (c) also narrowly define which claims may be deemed exhausted. The Supreme Court has given this statute a literal interpretation, to give full effect to the policies Congress sought to enforce. Because no two litigants may stipulate to a district court’s entertaining a habeas petition when the petition does not satisfy section 2254 and Rose , the exhaustion doctrine must be viewed as quasi-jurisdictional. Accordingly, we must notice the lack of exhaustion in this case and remand it to the district court with the instruction to dismiss the petition.
IV.
Realizing that to do so may detract from my argument that Rose mandates the dismissal of this case, I address the merits of petitioner’s Witherspoon claim. The record shows that petitioner’s trial counsel did not properly preserve for state appellate court review the specific issue the court decides today: whether the state trial judge was *1545 correct in concluding that venire members Varney and Murphy were sufficiently biased against the death penalty to be disqualified to serve as jurors. Because this issue was not preserved for appeal and thus, I submit, not decided on the merits by the Florida Supreme Court, petitioner must show cause and prejudice under Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).
Petitioner did make a “ Witherspoon” objection at trial, and that objection was preserved for appellate review. It was a patently unmeritorious objection, however, and as such was rejected out of hand by the Florida Supreme Court. The Witherspoon objection the court recognizes and rules upon today was not made, was therefore not preserved for appeal, and was not dealt with by the Florida Supreme Court. The petitioner has admitted as much; in presenting his Witherspoon claim to the district court he stated that it had not been exhausted. 40 This is why Sykes cause and prejudice must be shown. Since petitioner has not made this showing, I would deny the writ.
The following chain of events makes my thesis clear. Before voir dire of the venire members began, the lawyers for the parties met with the trial judge in chambers to consider a defense motion in limine 41 The following colloquy took place:
THE COURT: All right. We are here to hear a motion. The State and the defendant represented by counsel, the de *1546 fendant is present in person. We are to hear a motion by the defendant to limit the State Attorney of his voir dire examination, arguing the Willie Spoon [sic] case.
All right, sir, I am not inclined to grant it. I will be glad to listen to you on it.
MR. MALONEY [defense counsel]: Your Honor, I do not wish to argue very longly [sic]. The Court held in the Willie Sppon [sic] case the prosecutor could not ask these type of questions. In Florida we now have biforcated [sic] trial. The first part of the trial is used only to determine the question of facts, whether or not this individual committed a capital crime.
THE COURT: Yes, sir.
MR. MALONEY: I think that a question regarding how the jury would be disposed to punishment in the event they found a verdict of guilty would be irrelevant and immaterial to that trial and to their determination of the question of fact, whether or not he did it [i.e., commit murder]. And all we are asking is that such questions first not be asked by either parties, and if, in fact, the Court is going to allow the questions to be asked, that a response in the negative they would not impose the death penalty not constitute a challenge for cause.
THE COURT: No, sir, if, at the conclusion of the trial, the jury should return a verdict of guilty of murder in the first degree, which is a capital offense, the same jury would serve as the jury in the second half of the biforcated [sic] trial and there will not be a re-selection of a jury. At this time on voir dire it is necessary to ask questions of this jury including their attitude on such things and it’s got to be now.
Under the Florida capital punishment law there are certain conditions set up under which the proper penalty is the death penalty. In a prospective jury — It is my ruling if a prospective juror states on his voir dire examination that because of his moral, religious or conscientious principles and belief he would be unwilling to recommend a death penalty, even though the facts and circumstances meet the requirements of law, then he in effect has said he would be unwilling to follow the law the court shall charge upon it and disregard and be unwilling to follow it or if he did follow it, it would be going against his principles, and, therefore, I would rule that would be disqualification. If that exists, I intend to disqualify for cause.
You made your motion and your objection and the motion will be denied. You will, of course, be allowed at the time of the voir dire examination to raise your namely [sic] objection, but would indicate the ruling at this time. I am not cutting you off from objecting when we get to that specific question. Generally, that will be my ruling. I won’t cut them off from inquiring in the general area; the specific questions they ask may be objectionable, I don’t know.
MR. MALONEY: If I raise the objection, which I would, will the Court make it a continuing objection?
THE COURT: Yes, sir.
MR. McDANIEL [State’s attorney]: Is the Court saying it is going to be a continuing objection from here on out?
THE COURT: Continuing objection to that particular line of questions.
MR. McDANIEL: I take it your objection right now is continuing from here on out?
THE COURT: Yes, sir, to the whole general line of questions. Still I am not telling you I will deny your objection on some specific question for some other reason you feel it has gone too far.
MR. MALONEY: Yes, sir.
Trial Record, vol. 3, at 16-19 (emphasis added). It is clear to me that petitioner’s lawyer, at the outset, mistakenly thought 42 *1547 that Witherspoon, applied in the context of Florida’s recently enacted bifurcated trial procedure in capital cases, foreclosed any mention of the death penalty during the jury selection process. 43
Petitioner’s motion in limine asserted two alternative grounds: first, that Wither-spoon prohibited, as “irrelevant and immaterial,” any venire voir dire on the issue of punishment prior to the jury’s determination of guilt; second, that the court could not excuse for cause any venire member who could not vote for the death penalty. The motion was timely but unmeritorious on both grounds. As to the first ground, the motion was timely because it informed the trial judge before voir dire began that any inquiry of a venire member, in advance of the guilt phase of the trial, concerning his or her feelings about the death penalty would be “irrelevant and immaterial” and would constitute federal constitutional error. The motion was unmeritorious because such voir dire inquiry was not only proper, but required.
As to the second ground, the motion was timely because it informed the trial judge that it would be improper and would constitute federal constitutional error for him to excuse for cause any venire member who indicated that he or she “would not impose the death penalty.” In other words, regardless of the extent of the venire member’s bias against the death penalty, an excusal for cause would be error. Had the judge agreed with petitioner’s view of the law, he would have granted petitioner’s motion instanter, since a contemporaneous objection at the time of the venire member’s challenge for cause would have added nothing to petitioner’s motion in limine and thus would have been unnecessary. The judge did not agree, however, and properly so, because petitioner’s view of the Wither-spoon rule was in error. Witherspoon does not entitle a capital defendant to jurors who “would not vote to impose the death penalty.” Witherspoon only insulates from a challenge for cause a prospective juror who could vote for the death penalty under some circumstances. 44
A Witherspoon objection must be made contemporaneously, after the prospective juror has been examined about his views on the death penalty. The objection is addressed to the juror’s state of mind. In ruling on the objection, the trial judge must of course consider the questions put to the prospective juror and his responses. The judge is not restricted to these naked statements, however. The judge may also consider any evidence that bears on the venire member’s bias: his demeanor, tone of voice, nonverbal communications, and comprehension of the questions asked of him and other venire members. Unless a defendant’s objection is properly stated and contemporaneous, the judge may be deprived of the opportunity to make further inquiry of the venire member and to state on the record what, if anything beyond the naked words that have been spoken, he may have considered in determining that the venire member is disqualified to serve on the jury.
After denying petitioner’s motion in li-mine, the trial judge, recognizing the contemporaneous nature of a Witherspoon objection, invited counsel to make timely and specific Witherspoon objections during voir dire to any questions put to any individual venire member concerning his or her feelings about the death penalty. The judge also invited counsel to object to the excusal for cause of anyone demonstrating a bias against the death penalty sufficient to dis *1548 qualify him or her for jury service. As the record of the ensuing voir dire indicates, counsel never made such objections. Instead, counsel merely requested the court to treat his unmeritorious pretrial motion in limine as a “continuing objection.” The court granted his request.
After the court and counsel returned to the courtroom to begin the venire voir dire, petitioner’s counsel, in a final effort to insulate the venire from any examination about the death penalty, renewed the motion in limine he had just argued in chambers. He said:
Your Honor, pursuant to the motion I filed beforehand I object to this ques-tionpng]. I believe that it is irrelevant to the matter at hand and I think that the discussion of this at this time prejudices the defendant’s right to a fair and impartial trial.
Trial Record, vol. 3, at 43-44. The court denied counsel’s motion, and the venire voir dire commenced.
Throughout the voir dire the trial judge’s attention was obviously focused on petitioner’s motion in limine as petitioner had stated it in his formal pretrial pleading, supra note 41, and in chambers. As the colloquy on voir dire shows, petitioner’s counsel said nothing to indicate that he intended his “continuing objection” to mean anything more than what he had presented to the court prior to trial. 45 His “continuing objection” did not grow into its present form until his final amendment to his habeas petition in the district court.
The second venire member to be examined, and the first to be excused for Witherspoon cause, was Mr. Varney. Venire member Varney was excused for cause after the court’s Witherspoon inquiry. Id., at 45. When the court announced that it would excuse Varney for cause, petitioner’s counsel stated “I renew the objection. I do not think he should be challenged for cause.” By this the lawyer meant that he renewed his motion in limine. The court replied, correctly, “Yes, sir, the objection will be noted and overruled.” Moments later the court excused venire member Mays for cause, stating “Mr. Maloney, I assume you wish the same objection to apply to him.” Maloney replied, “Yes, your honor,” id., at 46, again referring to his motion in limine. The third excusal for cause under Wither-spoon took place following the examination of venire member Carn. After a long colloquy with her, the court excused her. Id., at 107. Counsel objected, stating “Your hon- or, once again I object, I don’t think that is relevant” (emphasis added), an obvious reference to the first ground of his motion in limine. The court stated, “Objection will be noted.” Counsel’s objection, here, shows that he continued to challenge the relevancy of the line of questioning rather than the sufficiency of the bias shown by excused venire members. The court next excused for cause venire member Maher. Id., at 110. After her negative answer to the proper Witherspoon questions, the court said, “Very well, over the objections of the defendant she will be excused.” Counsel said nothing, apparently satisfied that his continuing objection was being honored.
The last venire member excused for cause under Witherspoon was Murphy. After Murphy was excused, id. at 165, counsel said nothing, and the clerk called the next ve-nire member. The court then spoke to the court reporter, “Mrs. Horne, you will note the defendant object [sic] to him [Murphy] being excused for cause.” This was nothing more than the court’s acknowledgement that it had considered petitioner’s motion in limine as having been renewed and denied. At no time did the defense counsel object to Murphy’s excusal on the ground that Murphy had not made it unmistakably clear *1549 that he would automatically vote against the death penalty (the issue brought to the district court, and decided by us today) or that his feelings against the death penalty would impair his ability to find guilt.
By failing to state a proper contemporaneous objection, counsel denied the trial judge the opportunity to question Murphy further or to state the reasons why he concluded that Murphy was disqualified. Those reasons might have gone beyond Murphy’s naked responses to the questions put to him. As I have indicated, supra text at 1547, the judge may have relied on Murphy’s demeanor, nonverbal communications, tone of voice, his comprehension of the Witherspoon inquiry directed to him and other venire members, and any other evidence that may have indicated the extent of Murphy’s bias.
Florida law is settled that if a capital defendant wishes to object to the exclusion of a venire member for cause he must make a timely and proper objection. Brown v. State, 381 So.2d 690, 693-94 (Fla.), cert. denied, 449 U.S. 1118 , 101 S.Ct. 931 , 66 L.Ed.2d 847 (1980); Paramore v. State, 229 So.2d 855 (Fla.1969), vacated on other grounds, 408 U.S. 935 , 92 S.Ct. 2857 , 33 L.Ed.2d 751 (1972). Failure to make a timely and proper objection waives the issue. Id.; see also 33 Fla.Jur.2d, Juries § 109 (1982); Fla.Stat.Ann. § 913.03 (1983). Because petitioner failed to object to Murphy’s excusal for cause on the ground that Murphy did not unequivocally indicate that he would automatically vote against the death penalty, petitioner waived that issue. Consequently, the Florida courts would not, and apparently did not, 46 consider the issue decided here: whether Murphy was excluded for showing the type of bias justifying a Witherspoon excusal for cause.
In summary, petitioner has brought us an objection he did not raise in state court. Failure to follow Florida’s clear, and unambiguous, contemporaneous objection rule constituted a “procedural default” under Wainwright v. Sykes, supra. Accordingly, petitioner must show cause for failing to object, and actual prejudice resulting from the forfeiture. 47 See Douglas v. Wainwright, 714 F.2d 1532, 1547 (11th Cir.1983).
“Cause and prejudice” is a conjunctive standard, both prongs of which must be satisfied by the petitioner before a court is free to ignore the procedural default and hear the merits of the petitioner’s claim. Isaac, 456 U.S. at 134 n. 43, 102 S.Ct. at 1575 n. 43. A petitioner may not raise a procedurally defaulted claim without meeting the standard. See United States v. Frady, 456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982) ( 28 U.S.C. § 2255 ); Douglas, 714 F.2d at 1547 . This petitioner has not shown cause and prejudice; Wainwright v. Sykes requires us to deny the writ. Sykes, 433 U.S. at 85 , 97 S.Ct. at 2505 ; Sullivan v. Wainwright, 695 F.2d 1306 (11th Cir.1983) (procedural default on Witherspoon; burden to show cause and prejudice on petitioner); see also Estelle v. Williams, 425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976) (prisoner forced to wear prison garb at trial must preserve objec *1550 tion). See generally C. Wright, Federal Courts 339-43 (4th ed. 1983).
The Sykes opinion identified important interests advanced by requiring compliance with a state’s contemporaneous objection rule as a precondition to obtaining federal habeas relief. Such a requirement “enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest” and “enables the judge [such as the one in petitioner’s case] who observed the demeanor of those witnesses to make the factual determination necessary for properly deciding the federal constitutional question.” 433 U.S. at 88 , 97 S.Ct. at 2507 . See discussion supra text at 1547, 1548. Failure to enforce the contemporaneous objection rule, the Court stated, “may encourage ‘sandbagging’ on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off.” Id. at 89, 97 S.Ct. at 2508 . Further, insisting on a contemporaneous objection is desirable because it “encourages the result that [state trial] proceedings be as free of error as possible.” Id. at 90 , 97 S.Ct. at 2508 . The policy considerations expressed in Sykes apply fully to petitioner’s case.
We should consider the Sykes issue even though the state did not raise it in the district court or on appeal. Isaac is the latest full Supreme Court exposition on state procedural default and federal habeas relief. That case presented to the Supreme Court three consolidated habeas proceedings in which the petitioners had failed to object to improper jury instructions. The constitutional issue concerning their claims was fairly novel. Even though the State never raised the procedural default issue against one of the petitioners, the Supreme Court stated that both the district court and the court of appeals had properly considered the issue. Id. 456 U.S. at 124 n. 26, 102 S.Ct. at 1570 n. 26. The Isaac Court distinguished two prior cases, neither of which bar our consideration of the issue sua sponte. 48 Moreover, policy considerations stated by Sykes favor our raising the issue. Petitioner sandbagged his claims and dumped them in the district court. Had he made a proper Witherspoon objection at trial, the putative error could have been *1551 resolved, or at least clarified. Petitioner is not entitled to the writ.
. 582 F.2d 348, 355 (5th Cir.1978), citing West v. Louisiana, 478 F.2d 1026, 1034 (5th Cir. 1973), aff’d regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. 582 F.2d at 351 .
. Justice O’Connor, speaking for the Court, explained the “rigorously enforced total exhaustion rule,” 455 U.S. at 518, 102 S.Ct. at 1203, in parts III A and B of her opinion. She was joined in those sections by Chief Justice Burger and Justices Rehnquist and Powell. Justice Brennan, joined by Justice Marshall, concurred in the rule, id. at 532, 102 S.Ct. at 1210 ("I agree with the Court’s holding that the exhaustion requirement of 28 U.S.C. § 2254 (b), (c) obliges a federal district court to dismiss, without consideration on the merits, a habeas corpus petition from a state prisoner when that petition contains claims that have not been exhausted in the state courts.”). Justice White agreed with Justice Blackmun’s concurrence in the judgment, which opined that a district court need not dismiss every mixed petition, but could consider exhausted claims. Justice Stevens dissented.
. The district court’s order preceded Rose v. Lundy by 10 months.
. Judge Fay, infra at 1551, states that the petitioner has exhausted all his state remedies. I suggest that the record is to the contrary. See infra notes 9-13 and accompanying text.
. According to the Florida Supreme Court, petitioner alleged the following grounds for reversal: (1) the racial composition of the jury ve-nire was improper; (2) improper exclusion of prospective jurors because of their expressed attitudes toward the death penalty; (3) the alleged unconstitutionality of the sentencing provisions of the applicable Florida statutes; (4) the State’s eliciting from a State witness a comment regarding other murder cases in which petitioner was a suspect; (5) and (6) in-court identifications by two victims were tainted by improper pretrial show-ups; (7) erroneous admission into evidence of a gun allegedly used by petitioner in committing the holdup and murder; and (8) prosecutorial misconduct concerning closing argument. Darden v. State, 329 So.2d 287, 288 (Fla. 1976).
. Petitioner collaterally attacked his conviction under Fla.R.Crim.P. 3.850 (1984), alleging ineffective assistance of counsel and newly discovered evidence. Darden v. State, 372 So.2d 437 (Fla.1979). Additionally, he attacked the executive department’s clemency procedures in a separate suit. Darden v. Graham, 372 So.2d 436 (Fla.1979). The Florida Supreme Court rejected all three claims on the merits.
. The record does not contain the briefs the petitioner and the State filed with the Florida Supreme Court in these appeals; thus we have no definitive means of determining whether petitioner’s claims of error were grounded on federal or state law. This problem would not have arisen had the Florida Attorney General complied with his duty under the federal habeas corpus rules by attaching copies of petitioner’s briefs to the Florida Supreme Court to his answer to petitioner’s habeas petition. See rule 5, Rules Governing § 2254 cases, 28 U.S.C. foll. § 2254 (1976): “If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner’s brief on appeal and of the opinion of the appellate court, if any, shall also be filed by the respondent with the answer.”
. This is a tactic the State should have pursued in the state collateral attack court, since under the exhaustion doctrine the state courts have the initial responsibility to address and dispose of a petitioner’s federal constitutional attack on his conviction. See infra text at 1536-1539.
. The first three claims, stated in the original petition or by the initial amendment, were (1) prosecutorial misconduct, primarily in closing argument; (2) improper pretrial identifications; and (3) ineffective assistance of counsel. The remaining claims, stated in the interrogatories, were (4) that petitioner’s execution would constitute excessive punishment in violation of due process and the eighth amendment because the justifications asserted to support the death penalty were insufficient to take his life; (5) the death sentence violated the eighth amendment because it would inflict unnecessary pain and torment; (6) prosecutorial misconduct in the penalty phase; (7) petitioner’s counsel rendered ineffective assistance of counsel at the penalty stage of his trial; (8) petitioner’s execution would violate due process and equal protection because the Office of Executive Clemency operated in an unfair, irregular, and arbitrary manner; (9) the jury was selected using procedures that systematically excluded persons having conscientious or religious scruples against the death penalty; (10) petitioner’s sixth amendment rights were violated because persons with scruples against the death penalty were excluded from the jury so that it did not represent a cross-section of the community; (11) because of petitioner’s poverty he was denied the opportunity to prepare and present evidence against the death penalty; (12) petitioner was not given adequate notice or oppor *1535 tunity to present evidence and argument addressed to the sentence; (13) petitioner was denied timely notice of, and fair opportunity to meet, prejudicial evidence presented at his penalty trial; (14) the sentence was based upon facts not established beyond a reasonable doubt; (15) because of petitioner’s poverty he was denied a chance to present a defense to the capital charge; (16) the grand and petit juries were selected through procedures which systematically excluded racial minorities from jury service; (17) considering the circumstances of the offense and offender, the death penalty was grossly disproportionate and excessive; (18) petitioner’s death sentence was the result of the selective prosecution in Polk County and the Tenth Judicial Circuit of capital defendants who refused to plead guilty; (19) petitioner’s sentence was imposed pursuant to a system of arbitrary and capricious capital sentencing; (20) his sentence was imposed pursuant to racial discrimination in capital sentencing; (21) his sentence was imposed pursuant to wealth discrimination in capital sentencing; (22) his sentence was imposed pursuant to gender discrimination in capital sentencing; (23) given the circumstances surrounding petitioner and his offense, the sentence imposed was disproportionate and excessive when compared to similar cases; (24) the Florida Supreme Court denied petitioner notice and opportunity to be heard concerning its proportionality review of his sentence and because of his indigency denied him facts regarding similar cases; (25) because of his indigency the state denied petitioner opportunity for commutative relief; and (26) petitioner was legally incompetent [time unspecified] and the state denied him funds to prove same.
. See supra note 8 and accompanying text.
. See supra note 10 claims 1-3, 6-8.
. This type of claim is usually one that is not adequately preserved at trial, or is abandoned by failure to bring it on appeal. In either case, the state courts generally will not hear the claim further. See, e.g., Hargrave v. State, 396 So.2d 1127 (Fla.1981); Fla.R.Crim.P. 3.850 (1984). A Florida court will not recognize such a procedurally defaulted claim and grant relief thereon; therefore, a federal district court may hear such a claim on habeas without the petitioner first presenting the claim to state court. See § 2254(b) (“absence of available State corrective processes ... ”). Accord, Engle v. Isaac, 456 U.S. 107 , 125 n. 28, 102 S.Ct. 1558 , 1570 n. 28, 71 L.Ed.2d 783 (1982). See also Galtieri, 502 F.2d at 354. Of course, no habeas petitioner may bring a procedurally defaulted claim into federal court without showing cause and prejudice under Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977) and its progeny. See, e.g., Isaac, supra, 456 U.S. at 129, 102 S.Ct. at 1572 (“when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice”).
The habeas petition in this case alleged a number of claims not presented to a state court but permissible under § 2254(b) — with a showing of cause and prejudice — because no adequate state remedy existed at the time of filing. See supra note 10 (claims 4-5, 9-16, and possibly claim 18).
. See supra note 10 (claims 17, 19-26, and possibly claim 18).
. Thompson discussed comity as it served “the interests of the state and its sovereignty....” 714 F.2d at 1506. Rose , however, described the role of exhaustion in “protecting] the state courts’ role in the enforcement of federal law and ... state judicial proceedings.” 455 U.S. at 518, 102 S.Ct. at 1203 (emphasis added). See, e.g., Thompson, 714 F.2d at 1507 n. 11; Rose, 455 U.S. at 518 , 102 S.Ct. at 1203 (1982).
. 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. at 1203 , citing Darr v. Burford, 339 U.S. 200, 204 , 70 S.Ct. 587, 590 , 94 L.Ed. 761 (1950).
. Rose, 455 U.S. at 519 , 102 S.Ct. at 1203-04; Galtieri, 582 F.2d at 354 (without exhaustion “state court system would be isolated from federal constitutional issues and would not have an impetus to develop and apply federal constitutional law”).
. Accord, Isaac, 456 U.S. at 128 n. 33, 102 S.Ct. at 1571 n. 33.
. “We have always recognized ... that the Great Writ entails significant costs.” Isaac, 456 U.S. at 126 , 102 S.Ct. at 1571 .
. Thompson failed to acknowledge this point; it only analyzed the exhaustion principle in depth from the standpoint of state courts. See 714 F.2d at 1505-07.
. In capital cases, however, the collateral attack is usually delayed until a death warrant issues, scheduling the prisoner’s execution. In this case, petitioner was convicted in 1974, but *1538 the Governor did not issue the death warrant until 1979. The Florida collateral attack rule, Fla.R.Crim.P. 3.850 (1983), allowed petitioner to challenge his conviction and death sentence “at any time.” Most likely, he waited until the eleventh hour to challenge his conviction in the state courts, and then in the district court, because he thought this would give him the best chance to obtain a stay of his execution. Moreover, the more complicated a petitioner’s claims are, especially if they need an evidentia-ry hearing to be resolved, the greater the chance is that a stay will be forthcoming, at least until his claims are determined.
. Cf. Hill & Baker, Dam Federal Jurisdiction!, 32 Emory L.J. 3 , 80 (1983):
We submit that no federal jurist would seriously maintain that the federal courts are quite adequate to the enforcement of constitutional guarantees and that state courts are not needed. Therefore, it is important that whatever cleavage may have developed be bridged as soon as possible. This will require that the state courts assume full responsibility in these areas and that the federal courts recognize the important role of the States....
. See Railroad Comm’n v. Pullman Co., 312 U.S. 496 , 61 S.Ct. 643 , 85 L.Ed. 971 (1941).
. 455 U.S. at 532, 102 S.Ct. at 1210. (Brennan, J., joined by Marshall, J., concurring in part and dissenting in part).
. Rule 9, Delayed or Successive Petitions, Rules Governing § 2254 Cases. 28 U.S.C. foll § 2254 (1976).
. 455 U.S. at 520, 102 S.Ct. at 1204.
. Id
. One of the economies of the total exhaustion rule is that the district court should be spared the often difficult task of determining, for example, whether, under the Thompson-Westbrook rule, see infra text at 1539-1543, it should entertain a mixed petition, or whether there has been an abuse of the writ or undue delay within the meaning of Rule 9, 28 U.S.C. foll. § 2254 (1976). This latter determination may require an evidentiary hearing. See, e.g., Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1973).
. See also Lamb v. Jernigan, 683 F.2d 1332 , 1325 n. 1 (11th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1276 , 75 L.Ed.2d 496 (1983). The fourth circuit also permits explicit waiver. Sweezy v. Garrison, 694 F.2d 331, 333 (4th Cir.1982) (per curiam), cert. denied, — U.S. —, 103 S.Ct. 1882 , 76 L.Ed.2d 812 (1983). The fifth circuit seems to have not yet made up its mind, although the Thompson panel indicated otherwise, 714 F.2d at 1502. Compare Felder v. Estelle, 693 F.2d 549, 554 (5th Cir. 1982) (citing Galtieri permitting explicit waiver) with Scott v. Maggio, 695 F.2d 916 , 919 n. 4 (5th Cir.), cert. denied — U.S. —, 103 S.Ct. 3544 , 77 L.Ed.2d 1393 (1983) (not clear after Rose whether waiver permissible). Courts of Appeal for the first, second, third, sixth, and tenth circuits have refused to permit waiver. E.g. Bowen v. Tennessee, 698 F.2d 241, 243 (6th Cir.1983) (en banc); Navanjo v. Ricketts, 696 F.2d 83 , 87 (10th Cir.1982) (per curiam); Slotnick v. O’Lone, 683 F.2d 60, 61 (3d Cir.1982), cert. denied — U.S. —, 103 S.Ct. 1206 , 75 L.Ed.2d 447 (1983); Sostre v. Festa, 513 F.2d 1313 , 1314 n. 1 (2d Cir.), cert. denied, 423 U.S. 841 , 96 S.Ct. 72 , 46 L.Ed.2d 60 (1975); Needel v. Scafati, 412 F.2d 761, 766 (1st Cir.), cert. denied 396 U.S. 861 , 90 S.Ct. 133 , 24 L.Ed.2d 113 (1969). The Seventh Circuit has all but adopted a no-waiver rule, Mattes v. Gagnon, 700 F.2d 1096 , 1098 n. 1 (7th Cir.1983) (federal habeas court must consider exhaustion even if not raised by parties). See also Ventura v. Cupp, 690 F.2d 740, 741 (9th Cir.1982) (per curiam) (district court must dismiss unexhausted petition unless petitioner shows no other remedies or good cause); Batten v. Scurr, 649 F.2d 564, 567-68 (8th Cir. 1981) (court will not raise exhaustion when state conceded exhaustion, considerable time invested in case, and exhaustion not challenged in appeals court).
*1540 Of the foregoing cases, all are post-l?ose with the exception of Sostre, Needel, and Batten .
. See supra note 24 and accompanying text. The seriousness with which the Supreme Court views the exhaustion requirement is also evident from Anderson v. Harless, 459 U.S. 4 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982), rev’g 664 F.2d 610 (6th Cir.1982), where the Court granted certiorari and reversed on exhaustion alone. See 459 U.S. at 8 , 103 S.Ct. at 280 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). See also Duckworth v. Serrano, 454 U.S. 1 , 102 S.Ct. 18 , 70 L.Ed.2d 1 (1981) (seventh circuit, when presented with obvious constitutional claim, should have dismissed because claim unexhausted).
. This strong admonition, of course, is even more cogent after Rose .
. Thompson and Westbrook also did not address the similar cases discussed infra text at 1544.
. In noncapital cases the attorney general may have just the opposite incentive. If it is in his interest to delay as long as possible the petitioner’s release from custody on a federal habeas writ, the attorney general will likely urge the district court to dismiss the petition for want of exhaustion.
. Judge Hill and Professor Baker have observed this fact in arguing the need for more federal deference to state court decision making:
[Tjhe protection of the constitutional rights of the citizens is not, ought not be, and cannot be the exclusive business of the federal courts. There simply are not enough federal judges and federal courts to see to the protection of all the people and all their rights. That is reason enough for the fact that state jurists are obligated to apply federal law and federal constitutional guarantees in their work. Indeed, how else can one expect the state judiciary to identify with and protect federal rights than by having a hand in their evolution?
Hill & Baker, supra note 22, at 79.
. See Washington v. Strickland, 693 F.2d 1243 (5th Cir. Unit B 1982) (en banc), cert. granted, — U.S. —, 103 S.Ct. 2451 , 77 L.Ed.2d 1332 (1983).
. In Galtieri we noted a similar difficulty caused by mixed petitions. When a prisoner is required to be brought before a federal tribunal only once there is less disruption in his custodial status. We noted that complete exhaustion lessened the possibility of intermittent interruptions of a petitioner’s prison sentence, thus aiding the state’s correctional system, especially its rehabilitative programs. 582 F.2d at 360 .
. Under Thompson’s rationale, the district judge may have discretion not to accept the waiver, in which event he would, presumably, dismiss the mixed petition.
. For example, the unexhausted claims may involve novel questions of state law, better handled in state court, which may be disposi-tive of the petitioner’s case. Such a case was presented to the district court in Washington v. Strickland, 693 F.2d 1243, 1265 (5th Cir. Unit B 1982) (en banc) (Tjoflat, J., concurring), cert. *1543 granted — U.S. —, 103 S.Ct. 2451 , 77 L.Ed.2d 1332 (1983).
. Rose applies to pending appeals, such as this one. Bergman v. Burton, 456 U.S. 953 , 102 S.Ct. 2026 , 72 L.Ed.2d 478 (1982); Rodriquez v. Harris, 455 U.S. 997 , 102 S.Ct. 1627 , 71 L.Ed.2d 858 (1982); Duckworth v. Cowell, 455 U.S. 996 , 102 S.Ct. 1626 , 71 L.Ed.2d 858 (1982).
. Petitioner’s Witherspoon claim was made a part of his habeas petition on September 14, 1979. See, e.g., supra text at 1534. The claim first surfaced in petitioner’s answers to the State’s interrogatories that asked the petitioner to disclose any federal constitutional claims that he had in addition to the three claims he presented in his original and first amended ha-beas petitions. Id., at 1534-1536. He stated that he had 23 additional claims, including the Witherspoon claim here in issue, and that none of these additional claims had been exhausted. App.Rec., vol. 1, ex. 20. Several of these 23 claims, including the Witherspoon claim, were, of course, technically exhausted, in that petitioner had failed seasonably to raise them either at trial or on appeal, and he was consequently barred from presenting them to the state courts for consideration on the merits. See supra note 13 and accompanying text. Accord, Engle v. Isaac, 456 U.S. 107 , 125 n. 28, 102 S.Ct. 1558 , 1570 n. 28, 71 L.Ed.2d 783 (1982).
. Fifty days before petitioner’s case was called for trial he moved the court to foreclose both the prosecution and the defense (and presumably the court) from examining any prospective juror, during the voir dire of the ve-nire, as to his or her views about capital punishment and to deny all challenges for cause based on such views. Petitioner’s motion read as follows:
COMES NOW the Defendant, by and through his undersigned counsel, and moves this Court for an order limiting the voir dire examination of the prospective jurors, and alleges:
1. That under the Supreme Court’s ruling in Witherspoon v. Illinois, 389 U.S. 1035 , 88 S.Ct. 793 , 19 L.Ed. [sic] 822, the Supreme Court ruled that in a non-bifurcated trial, the prosecutor could be allowed to ask whether or not a juror would ever consider imposing the death penalty.
2. That subsequent to the enactment of Florida Session Law 72-724, Florida Statute 921.141 provides for two (2) deliberations by a Florida jury — one to consider guilt or innocence, and a subsequent deliberation to consider mercy or no mercy.
3. That any questions asked by a prosecutor relating to whether or not a juror would even consider capital punishment in no way relates to, is not reasonably related to nor relevant to a decision on the defendant’s guilt or innocence and an answer by a juror that the juror could not consider the death penalty would not in any way affect the ability of the juror to participate fully and freely in deliberations on the questions of innocence or guilt.
4. That to allow the prosecutor to ask Witherspoon-type questions and be granted challenges for cause on the basis that the juror could not consider the death penalty unduly prejudices the defendant’s right to a fair trial, in violation of his right to a fair and impartial jury trial and to due process in violation of the Fifth and Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 16 and 22 of the Florida State Constitution.
WHEREFORE, the defendant requests that this Honorable Court enter an order limiting both the prosecution and the defense from asking any questions of the prospective jurors relating to their belief either for or against the death penalty and to deny any and all challenges for cause based upon Witherspoon-type questions.
Trial Record, vol. 1, at 106-107.
. His mistake was understandable, perhaps, given the fact that this was the first post Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), capital case tried in Polk County, Florida, and counsel did not know until the morning the trial was to begin that he would be the defense attorney (petitioner had *1547 two lawyers) who would conduct the jury voir dire.
. Precisely when, if at all, counsel thought the jurors were to be qualified for service during the sentencing stage of the trial does not appear in the record.
. Witherspoon authorizes the excusal for cause of:
(1) a venire member who makes unmistakably clear that he would automatically vote against the imposition of capital punishment without regard to the evidence presented or
(2) a venire member whose attitude toward the death penalty would prevent him from making an impartial determination as to the defendant’s guilt.
See Adams v. Texas, 448 U.S. 38, 44 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581 (1980).
. We have considered in a related context the inadequacy of a motion in limine to serve the purposes of a contemporaneous objection. “[M]otions in limine are frequently made in the abstract and in anticipation of some hypothetical circumstance that may not develop at trial.... [A contemporaneous objection] will give the trial court an opportunity to reconsider the grounds of his motion in light of the actual — instead of hypothetical — circumstances at trial.” Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980). See Annot., 63 A.L.R.3d 311 , 333 (1975) (citing cases).
. Petitioner’s motion in limine, based on a faulty interpretation of Witherspoon, is in the trial record. See supra note 41 and accompanying text. It, and the trial court’s ruling thereon, was before the Florida Supreme Court on direct appeal. That court, in describing the claims presented to it, stated that petitioner sought reversal because of “the exclusion of prospective jurors because of their expressed attitudes toward the death penalty.” 329 So.2d at 288 . That is all the court had to say on the matter. Had petitioner raised the precise Witherspoon claims he presents here as to ve-nire members Murphy and Varney’s bias, the Florida Supreme Court would have been bound by its contemporaneous objection rule to reject those claims on procedural grounds. See supra note 41 and accompanying text.
. It is a settled rule that where a state court in a post-conviction proceeding rules on the merits of a procedurally defaulted claim, the federal court may proceed to the merits of the claim without inquiring as to the existence of cause and prejudice. Douglas, 714 F.2d at 1547 n. 19; Thomas v. Blackburn, 623 F.2d 383, 386 (5th Cir.1980), cert. denied, 450 U.S. 953 , 101 S.Ct. 1413 , 67 L.Ed.2d 380 (1981). No state court ruled on the merits of the Witherspoon claims petitioner presents here. See supra notes 41 & 46. Accordingly, he must overcome the cause and prejudice hurdles.
. The Court distinguished Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981) and Jenkins v. Anderson, 447 U.S. 231 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 (1980). Although Smith and Jenkins have been cited for the proposition that a court should not entertain a procedural default sua sponte, see Thompson, 714 F.2d at 1503, neither case fully considered the issue. In Smith the Court simply said:
For the reasons stated by the Court of Appeals, we reject the State’s argument that respondent waived his Fifth Amendment claim by failing to make a timely, specific objection to Dr. Grigson’s testimony at trial. See 602 F.2d, at 708, n. 19. In addition, we note that the State did not present the waiver argument in its petition for certiorari. See this Court’s Rule 40(l)(d)(2) (1970).
451 U.S. at 468 n. 12, 101 S.Ct. at 1876 n. 12. The Jenkins Court limited its discussion to raising the procedural default sua sponte in the Supreme Court:
The petitioner did not raise his constitutional claims during his state-court trial. Thus, the respondent argues that the rule of Wainwright v. Sykes, 433 U.S. 72 , 53 L.Ed.2d 594 , 97 S.Ct. 2497 (1977), bars consideration of the petitioner’s habeas petition. But the respondent failed to raise the Sykes question in either the District Court or the Court of Appeals. Ordinarily, we will not consider a claim that was not presented to the courts below. See Dorszynski v. United States, 418 U.S. 424, 431, n. 7 , 41 L.Ed.2d 855 , 94 S.Ct. 3042 [3047, n. 7] (1974). Considerations of judicial efficiency demand that a Sykes claim be presented before a case reaches this Court. The applicability of the Sykes “cause”-and-“prejudice” test may turn on an interpretation of state law. See Rummel v. Estelle, 445 U.S. 263, 267, n. 7 , 63 L.Ed.2d 382 , 100 S.Ct. 1133 [1135, n. 7] (1980). This Court’s resolution of such a state-law question would be aided significantly by the views of other federal courts that may possess greater familiarity with Michigan law. Furthermore, application of the “cause”-and-“prejudice” standard may turn on factual findings that should be made by a district court. Accordingly, we do not consider the Sykes issue in this case.
447 U.S. at 234 n. 1, 100 S.Ct. at 2127 n. 1. Application of the cause and prejudice standard in the instant case requires no fact-finding. Accordingly, Smith and Jenkins do not militate against our proceeding sua sponte, and Isaac encourages us to do so.