concurring.
I concur fully in the majority opinion, with the exception of footnote 1 which I consider dictum. I write separately to emphasize one point. As the opinion expressly notes, defense counsel failed to request a second degree murder instruction. Thus, the opinion necessarily holds that in a capital case where the evidence warrants a lesser included offense instruction but counsel fails to request that instruction, due process requires that the court give the instruction sua sponte. This holding does not represent any change in the law in our circuit. We have said essentially the same • thing previously in Miller v. Stagner, 757 F.2d 988, 993, modified, 768 F.2d 1090, 1091 (9th Cir.1985), cert. denied, U.S. 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986). Nevertheless, the principle is important and I believe it desirable to restate it explicitly, The question of whether a similar due process claim would survive any particular state procedural bar is not before us. Arizona raises no claim that any procedural bar exists here.