context: .The conclusion that a court cannot dismiss a habeas petition sua sponte based on an unpleaded affirmative defense except as a matter of preliminary review is consistent with the Supreme Court's holding that a "court of appeals is not 'required' to raise the issue of procedural default sua sponte."
citation_a.signal: no signal
citation_a.parenthetical: refusing to consider the broader question of whether a court of appeals may raise a procedural default sua sponte
citation_a.sentence: Trest v. Cain, 522 U.S. 87, 89, 90-91, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (refusing to consider the broader question of whether a court of appeals may raise a procedural default sua sponte); see also Fisher, 169 F.3d at 301 ("We conclude, however, that even if we do have discretion in some circumstances to apply the procedural bar where the state has waived the defense in the district court, we will not exercise such discretion in this case.").
citation_b.signal: see also
citation_b.identifier: 169 F.3d 301, 301
citation_b.parenthetical: "We conclude, however, that even if we do have discretion in some circumstances to apply the procedural bar where the state has waived the defense in the district court, we will not exercise such discretion in this case."
citation_b.sentence: Trest v. Cain, 522 U.S. 87, 89, 90-91, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (refusing to consider the broader question of whether a court of appeals may raise a procedural default sua sponte); see also Fisher, 169 F.3d at 301 ("We conclude, however, that even if we do have discretion in some circumstances to apply the procedural bar where the state has waived the defense in the district court, we will not exercise such discretion in this case.").