(defining “express” as “directly and distinctly stated or expressed ... not dubious or ambiguous ... definite, clear, explicit, unmistakable ... ”). Here, the State conceded exhaustion before the District Court by stating in its answer to Sharrieffs habeas petition that it “appears that [Sharrieff] has exhausted his state court remedy as to [the Blakely] issue, since he presented it to the state’s highest court in his petition for certification.” The fact that the State based its concession on a flawed legal conclusion is of no consequence; its concession clearly, explicitly, and unambiguously relinquished and abandoned its right to assert the nonexhaustion defense. That is enough to expressly waive the exhaustion requirement under Section 2254(b)(3). See Kerns, 408 F.3d at 449 n. 3 (<HOLDING>); Dorsey, 262 F.3d at 1187 (concluding that the
holding that the warden expressly waived the exhaustion requirement because her counsels conduct during the district court proceedings manifested a clear and unambiguous intent to waive the requirement recognizing that issue exhaustion requirement and requirement exhaustion of remedies are different holding that issue exhaustion is mandatory even if not a statutory jurisdictional requirement holding exhaustion requirement inapplicable when requiring exhaustion would be futile holding that the state expressly waived the exhaustion requirement with a concession in its district court briefing even though the concession was made in error