Circuit Judge, dissenting:
I believe the majority errs by finding that Boardman had a constitutional right to personally address the court at his sentencing. In my view, the majority transforms the common law right of allocution into a federal constitutional mandate. The majority’s holding is at odds with the wide discretion enjoyed by sentencing judges and the accordingly narrow due process rights of defendants at sentencing. The majority, moreover, cavalierly and unwisely places its stamp of approval upon “hybrid representation” of a criminal defendant by allowing Boardman all the advantages of *1531proceeding pro se and through counsel. With all due respect, I must dissent.
I
At its outset, the majority’s analysis veers onto the wrong track by failing to examine the general contours of due process at sentencing before proceeding to the highly specific question of allocution. To determine what process is due a defendant in a state court sentencing proceeding, we must first look to Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).1 In Williams, the Supreme Court upheld a sentence imposed by a state judge on the basis of a presentence report containing hearsay. The Court sharply distinguished procedures appropriate for the guilt phase of a state criminal trial from those appropriate for the sentencing determination:
Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.
Id. at 246, 69 S.Ct. at 1082. The judge’s wide discretion at sentencing accommodates a state’s policy of tailoring a sentence to the individual defendant’s culpability and capacity for reform. Id. at 247-51, 69 S.Ct. at 1083-85.
In fact, there is no constitutional right to a sentencing hearing at all, but most states do provide for such a hearing. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) (no right to a sentencing hearing or to participate in such a hearing); Richard B. McNamara, Constitutional Limitations on Criminal Procedure § 18.02, at 299 (1982) (constitution does not require hearing but most states provide for one). Part III of the majority’s opinion notes that a sentencing hearing, if provided, is a critical stage for Sixth Amendment right to counsel purposes. That observation, however, does nothing to further our analysis of whether the Due Process Clause mandates a right to allocution. See R. McNamara, supra, § 18.02, at 299.
Stringent evidentiary and procedural protections are unnecessary at sentencing because “[o]nce the reasonable-doubt standard has been applied to obtain a valid conviction, ‘the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.’ ” McMillan v. Pennsylvania, 477 U.S. 79, 92 n. 8, 106 S.Ct. 2411, 2419 n. 8, 91 L.Ed.2d 67 (1986) (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)). Thus, a judge may rely upon hearsay presented within a presentence investigative report. Williams, 337 U.S. at 249-51, 69 S.Ct. at 1084-85; United States v. Wondrack, 578 F.2d 808, 809-10 (9th Cir.1978); see also Farrow v. United States, 580 F.2d 1339, 1353 n. 25 (9th Cir.1978) (dicta) (“[A] defendant has no due process right to cross examine witnesses who supply information relied on in sentencing.”). “We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.” Williams, 337 U.S. at 250, 69 S.Ct. at 1084. Thus, information considered by a judge at sentencing need only be supported by “ ‘some minimum factual basis.’ ” Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir.1987) (quoting United States v. Petitto, 767 F.2d 607, 611 (9th Cir.1985)).
*1532Even though due process does not require a state court to provide a sentencing hearing, the Due Process Clause does provide some limitations on sentencing. These limitations prevent a sentencing judge from relying on materially untrue information. See Brothers, 817 F.2d at 1390. First, a sentencing court may not rely upon prior convictions obtained in violation of the right to counsel. United States v. Tucker, 404 U.S. 443, 449, 92 S.Ct. 589, 593, 30 L.Ed.2d 592 (1972); United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir.1979). Boardman does not argue that his sentencing judge relied upon any such convictions.
Second, due process forbids a defendant’s sentence being based upon “assumptions concerning his criminal record which [are] materially untrue.” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). In Burke, the Court held that due process was violated when a sentencing court mistakenly believed the petitioner to have been, convicted of certain crimes in the past. The court had erroneously recounted three prior “convictions” at sentencing when the petitioner had, in fact, been acquitted of two of those prior charges and the charges were dismissed in the third. Id. at 740, 68 S.Ct. at 1255. The Court emphasized that the unrepresented petitioner was unable to correct the sentencing court’s mistaken information about his criminal history:
It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.
Id. at 741, 68 S.Ct. at 1255. Thus, I believe that the only hook that Boardman can hang a due process claim upon is a showing that his sentencing judge relied on materially untrue information in formulating his sentence.
Boardman argues that the sentencing judge acted inappropriately by considering a letter from a parent of one of his victims without allowing Boardman to personally respond to the letter. Boardman does not, and could not, argue that consideration of the letter was itself a due process violation. The parent’s account of the effects of Boardman’s behavior on his victim has a sufficient factual basis to satisfy due process. Indeed, the Supreme Court has held that such “victim impact statements” may be considered by courts at sentencing. See Payne v. Tennessee, — U.S.-, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991) (upholding over eighth amendment challenge admission of victim impact evidence at sentencing phase of capital trial).
Boardman only argues that his inability to personally address the court violated his right to due process at sentencing. Board-man has made no showing whatsoever that the judge relied upon false information or assumptions, and has proffered nothing in his argument to this court that he would have liked to tell the court at sentencing. Cf. Lankford v. Idaho, — U.S.-, 111 S.Ct. 1723, 1730-31, 114 L.Ed.2d 173 (1991) (due process violated when sentencing judge led defense counsel to believe that he was not considering imposition of death penalty and then sentenced defendant to death because defense counsel “would have advanced arguments that addressed these circumstances”). Thus, Burke and Lank-ford teach us that the judge’s refusal to allow Boardman to speak personally did not violate due process because that refusal did not cause the judge to rely upon inaccurate information in sentencing Boardman.
Moreover, Boardman was not rendered unable to respond to the judge or to the letter. Unlike the petitioner in Burke, Boardman was represented by counsel. His counsel could have communicated any of Boardman’s arguments or concerns to the sentencing judge. “Underlying the right to allocution ... is the theme that matters in mitigation of sentence should be fairly presented to a sentencing judge prior to rendition of final sentence.” Katz v. King, 627 F.2d 568, 576 (1st Cir.1980) (noting uncertain parameters of due process at non-capital sentencing without deciding whether right to allocution is constitutional *1533or statutory). Boardman could have corrected any erroneous assumptions held by the judge through his lawyer. Thus, I believe that the refusal of the sentencing judge to allow Boardman to personally address the court did not violate his right to due process.
My conclusion is consistent with the history of the right to allocution. At common law, allocution was not an opportunity for the defendant to plead for mercy because a sentence of death was mandatory for most felonies. Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 821 n. 2, 832 (1968). Instead, its function was “to give the defendant a formal opportunity to present one of the strictly defined legal reasons which required the avoidance or delay of sentencing.” Id. at 832-33. It seems to me, then, that the functional interests served by allo-cution can properly be assigned to counsel by a sentencing judge. See id. at 833 (“Since an affirmative answer to the allo-cutus has to be a showing of a legal ground why sentence should not be pronounced, it would seem appropriate, where the defendant has counsel, to put the question to counsel rather than to the defendant himself.”).
Federal Rule of Criminal Procedure 32(a) now mandates that the right of allocution be afforded in federal criminal trials. The majority relies heavily upon cases interpreting that rule to discover a Constitutional right to allocution. See, e.g., Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). Those cases, however, tell us nothing about what the Constitution mandates in a state court sentencing proceeding. See Note, supra, at 832 (rule 32(a) codifies a common law right). If anything, Hill teaches us that the right to allocution is not embodied in the Constitution. Hill held that the failure of the federal sentencing judge to ask the defendant sua sponte whether he wished to speak was a violation of Rule 32(a). Hill, 368 U.S. at 426, 82 S.Ct. at 470. The Court plainly held that the error was not constitutional in nature. Id. at 428, 82 S.Ct. at 471. Thus, Hill, Green, and other cases interpreting Rule 32(a) are simply immaterial to our determination of what procedures the Due Process Clause mandates in a state court sentencing proceeding.
The majority’s failure to focus upon cases interpreting the Due Process Clause in order to discover what process was due Boardman in his state court sentencing proceeding has led it astray. Both Burke and Tucker inform us that no due process violation has occurred here because Boardman was not sentenced based upon inaccurate or unreliable information. Boardman’s asserted right to allocute at sentencing is not grounded upon a desire to correct mistaken factual or assumptive beliefs held by the sentencing judge. Even had Boardman harbored grievances with the sentencing judge’s information or beliefs, Boardman’s counsel provided a ready avenue for him to convey those concerns to the judge. Thus, the majority’s conclusion that due process mandates a right to allocution at sentencing is in error because it ignores the larger due process structure upon which it purports to rely.
II
The majority’s holding effectively grants Boardman a right to hybrid representation by holding that he had the constitutional right to interact directly with the court even though he was represented by counsel. The Supreme Court has cautioned that hybrid representation is not mandated by the Sixth Amendment. See McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984) (appointment of standby counsel does not violate right to self-representation, but pro se defendant may not demand such assistance).
A criminal defendant must expressly and unequivocally waive his Sixth Amendment right to counsel in order to invoke his right to self-representation. Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989). When a defendant equivocates, he is presumed to have requested the assistance of counsel because exercising the right to self-representation is generally believed to be *1534against the best interests of defendants untrained in the law. Jackson v. Ylst, 921 F.2d 882, 889 (9th Cir.1990). Boardman at no time unequivocally expressed a desire to represent himself and forego the assistance of counsel. See, e.g., Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973) (passing statement of defendant invoking right to self-representation was a “prototype of equivocation”). Thus, Boardman cannot claim a right to allocute based upon the right of self-representation because he did not waive his right to representation.
In addition to imperiling criminal defendants’ right to counsel, the majority’s analysis seriously undermines the integrity of criminal trials by creating “a constitutional right to choreograph special appearances by counsel.” Wiggins, 465 U.S. at 183, 104 S.Ct. at 953 (mocking such a result). Under the majority’s analysis, a criminal defendant who vacillates about whether he chooses to be represented by counsel will always be able to argue on appeal either that he was denied the right to assistance of counsel or the right to represent himself. Because I believe that the majority opinion is therefore most unwise, I respectfully dissent.
The slip opinion in this case, Boardman v. Estelle, No. 90-55238, slip op. 105 (9th Cir. Jan. 9, 1992), is supplemented as follows:
PER CURIAM:In our earlier opinion in this case, we held that a criminal defendant has a Constitutional right to speak at his sentencing hearing after he affirmatively requests to do so. Boardman v. Estelle, No. 90-55238, slip op. 105 (9th Cir. Jan. 9, 1992). The state now contends for the first time, in a petition for rehearing, that our holding created a “new rule” on habeas, in violation of the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The state argues it has the right belatedly to avail itself of the Teague (new-rule) defense. We deny the petition for rehearing because the state has waived the Teague defense in this case.
The Supreme Court has not yet decided whether a state may waive the Teague defense by failing timely to raise it. See Marc M. Arkin, The Prisoner’s Dilemma: Life in the Lower Federal Courts After Teague v. Lane, 69 N.C.L.Rev. 371, 415-16 (1991) (“The question of when the government may waive a Teague nonretroactivity defense is not clearly settled.... While the Supreme Court has now decided that the government may explicitly waive a Teague nonretroactivity claim, it has not given the lower courts guidance regarding any other circumstances under which such a waiver should be found.” (footnotes omitted)).
Some circuits (including this one) have allowed waiver, and others have not, but none has engaged in any significant analysis on the issue. See Adamson v. Lewis, 955 F.2d 614, 615-16 (9th Cir.1992) (Teague defense argued for the first time on fifth appeal and third en banc proceeding; defense “not appropriate to be raised at this late stage”); Coe v. Thurman, 922 F.2d 528, 533 n. 1 (9th Cir.1990) (authored opinion with per curiam addition in 1991) (court has “discretion” to address Teague defense raised for the first time in petition for rehearing); Maynard v. Dixon, 943 F.2d 407, 418 (4th Cir.1991) (“assuming, without deciding, that the State waived its defense of non-retroactivity ... that may have been available to it under Teague v. Lane”), cert. denied, — U.S.-, 112 S.Ct. 1211, 117 L.Ed.2d 450 (1992); Smith v. Black, 904 F.2d 950, 981 n. 12 (5th Cir.1990) (“we believe the better choice is to reach the Teague issue now pressed by the State”); Kordenbrock v. Scroggy, 919 F.2d 1091, 1104 n. 4 (6th Cir.1990) (en banc) (“The state has waived any argument based on Teague ”), cert. denied, — U.S.-, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991); Hill v. McMackin, 893 F.2d 810, 813 (6th Cir.1989) (“Although the parties did not address the question whether the rule ... may be applied retroactively, we find ourselves compelled to do so in light of ... Teague v. Lane....”), disapproved on other grounds, Ylst v. Nunnemaker, — U.S. *1535-, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), as noted in Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.1991) (per curiam); Hanrahan v. Thieret, 933 F.2d 1328, 1337 n. 19 (7th Cir.), cert. denied, — U.S.-, 112 S.Ct. 446, 116 L.Ed.2d 464 (1991); Hopkinson v. Shillinger, 888 F.2d 1286, 1288 (10th Cir.1989) (en banc) (“We hold that the non-retroactivity defense is not waived, and should be considered”), cert. denied, — U.S.-, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990); Card v. Dugger, 911 F.2d 1494, 1523 n. 30 (11th Cir.1990).
Ordinarily, arguments not timely presented are deemed waived. E.g., Winebrenner v. United States, 924 F.2d 851, 856 n. 7 (9th Cir.1991). This general doctrine of waiver applies to arguments raised for the first time in a petition for rehearing. United States v. Lewis, 798 F.2d 1250, 1250 (9th Cir.1986) (order amending opinion published at 787 F.2d 1318 (9th Cir.1986), and denying petition for rehearing and rehearing en banc).
The state implicitly argues the Teague defense is not subject to this ordinary rule, however, because Teague doctrine is grounded in concerns for comity and federalism. See Teague, 489 U.S. at 308-10, 109 S.Ct. at 1073-75; cf. Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746, 750-55, 27 L.Ed.2d 669 (1971), cited in Teague, 489 U.S. at 310, 109 S.Ct. at 1075. A state may waive Younger only by express statement, not through failure to raise the issue. See Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 573 (1977). Thus, by analogy to Younger, it might appear that silence by the state implies nonwaiver of the Teague defense.
Rather than pursuing the analogy to Younger, however, we follow an analogy that is closer to home: Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), a unanimous Supreme Court decision which discussed waiver by a state of the nonexhaustion defense in habe-as corpus. In Granberry, Illinois filed a Fed.R.Civ.P. 12(b)(6) motion in response to Granberry’s habeas petition. Id. at 130, 107 S.Ct. at 1673. On appeal from the dismissal of the petition, Illinois argued for the first time that Granberry had not exhausted his state remedies; Granberry claimed the issue was waived. Id.
The heart of the Supreme Court’s opinion considered the history and principles behind the exhaustion requirement: “comity and. federalism_” Id. at 134, 107 S.Ct. at 1675. Noting the importance of good federal-state relations, the Court nonetheless instructed the circuits to “take a fresh look at the issue” of waiver when the state had failed to raise the exhaustion defense in the district court. Id.
For the resolution of this case, Granber-ry provides a better analogue than Younger. Like this case, and unlike Younger, Granberry deals with a waiver by the state of a habeas corpus defense. Further, the Teague defense at issue in this case, like the exhaustion defense at issue in Gran-berry, is grounded in concerns for comity and federalism. Compare Collins v. Youngblood, 497 U.S. 37, -, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) (“the Teague rule is grounded in important considerations of federal-state relations”) with Granberry, 481 U.S. at 134, 107 S.Ct. at 1675 (discussing “the interests of comity and federalism” as the basis for the exhaustion doctrine).
Of course Granberry is distinguishable from this case because a habeas petitioner who fails to exhaust his state remedies may return to federal court once he has exhausted those remedies. Thus, the issue in Granberry was whether to reach the merits of the habeas petition now, or later. See Granberry, 481 U.S. at 134-35, 107 S.Ct. at 1675-76. The rule is one of timing and therefore controls when, not if, federal courts will review a state court conviction. Here, the issue is whether to reach the merits now, or never. But the reasoning of Granberry on the nonexhaustion defense applies fully to the Teague defense. Granberry is distinguishable, but not in a meaningful way.1
*1536Following the imperfect analogy to Granberry, its approach is instructive here:
How an appellate court ought to handle a nonexhausted habeas petition when the State has not raised this objection in the district court is a question that might be answered in three different ways. We might treat the State’s silence on the matter as a procedural default precluding the State from raising the issue on appeal. At the other extreme, we might treat nonexhaustion as an inflexible bar to consideration of the merits of the petition by the federal court, and therefore require that a petition be dismissed when it appears that there has been a failure to exhaust. Or, third, we might adopt an intermediate approach and direct the courts of appeals to exercise discretion in each case to decide whether the administration of justice would be better served by insisting on exhaustion or by reaching the merits of the petition forthwith.
Id. at 131, 107 S.Ct. at 1673 (footnotes omitted).
The same three possibilities apply to a state’s failure to raise an objection to a habeas petitioner’s reliance on a new Constitutional rule. And here, as in Granber-ry, the Court already has excluded the first two possibilities.
At the first extreme, the state’s failure to raise the exhaustion or Teague defenses is not a “procedural default” by the state, and does not absolutely bar appellate courts from raising sua sponte those defenses. Compare Saffle v. Parks, 494 U.S. 484, 496 n. 1, 110 S.Ct. 1257, 1264 n. 1, 108 L.Ed.2d 415 (1990) (Brennan, J., dissenting) (“Although [this] case was briefed and argued after Teague, neither of the parties nor any amicus briefed the retroactivity issue”) and Zant v. Moore, 489 U.S. 836, 837, 109 S.Ct. 1518, 1519, 103 L.Ed.2d 922 (Blackmun, J., dissenting) (“petitioner did not raise retroactivity as a defense to respondent’s claim for federal habeas relief, and that defense therefore should be deemed waived”) with Granberry, 481 U.S. at 133, 107 S.Ct. at 1674 (“The appellate court ... is not obligated to regard the State’s [failure to argue nonexhaustion] as an absolute waiver of the claim”).
At the other extreme, a petitioner’s failure to exhaust state remedies, like a petitioner’s reliance on a new Constitutional rule, is not “an inflexible bar to consideration of the merits.” Compare Youngblood, 110 S.Ct. at 2718 (“Although the Teague rule is grounded in important consideration of federal-state relations, we think it is not ‘jurisdictional’ in the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte ”) with Granberry, 481 U.S. at 131, 107 S.Ct. at 1673 (“We have already decided that the failure to exhaust state remedies does not deprive an appellate court of jurisdiction to consider the merits of a habeas corpus application”).
With the two extremes eliminated, Gran-berry articulates a “middle course” for appellate courts confronting a habeas defense raised by the state for the first time on appeal. Granberry, 481 U.S. at 133, 107 S.Ct. at 1674. When the state
fails, whether inadvertently or otherwise, to raise an arguably meritorious non-exhaustion defense[,].... [t]he court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith. ...
[I]f a full trial has been held in the district court and it is evident that a miscarriage of justice has occurred, it may ... be appropriate for the court of appeals to hold that the nonexhaustion defense has been waived....
Id. at 134-35, 107 S.Ct. at 1675-76.
Here too, the “middle course” is the best course: courts of appeals have discre*1537tion, but are not required, to address a Teague defense raised for the first time on appeal (or, perhaps, even in a petition for rehearing). As the Court noted in Gran-berry,
[w]e have also expressed our reluctance to adopt rules that allow a party to withhold raising a defense until after the ‘main event’ — in this case, the proceeding in the District Court — is over. Although the record indicates that the State’s failure to raise the nonexhaustion defense in this case was the result of inadvertence, rather than a matter of tactics, it seems unwise to adopt a rule that would permit, and might even encourage, the State to seek a favorable ruling on the merits in the district court while holding the exhaustion defense in reserve for use on appeal if necessary.
Granberry, 481 U.S. at 132, 107 S.Ct. at 1674 (citations and footnote omitted). Substituting “Teague” for “exhaustion” and “non-exhaustion” above yields a perfectly tailored argument in favor of allowing a court to find waiver of the Teague defense. Indeed, in this case, not only is the “main event” completed, the rematch is finished as well, because we are dealing with a petition for rehearing.
Following Granberry, we have discretion to reject the Teague defense. The question then becomes: how should we exercise that discretion in this case? In Granberry, the Supreme Court advised:
That discretion should be exercised 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.
Id. at 133, 107 S.Ct. at 1674 (quotations omitted); see Paradis v. Arave, 954 F.2d 1483, 1488 (9th Cir.1992) (petitioner’s “failure to exhaust his remedies is waived”); Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir.1990) (“Where, as here, the state failed to raise an exhaustion argument before the district court, we may consider it waived if the interests of comity, federalism and justice would be served.”); cf. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir.1991) (finding waiver by state of argument that petitioner raised nonconsti-tutional claims on habeas corpus, and citing cases).
We will follow Stone, where this court held the exhaustion defense waived because:
The district court has already held a full trial, and the state has not adequately justified its failure to raise the issue at that time. Moreover, reversal of the district courtf’s grant of habeas relief] would force Stone to return to prison on a sentence that a federal court has declared unconstitutional. The interests of federalism and comity do not require such an injustice.
Stone, 894 F.2d at 1135. As noted above, the reasoning of Stone applies with even greater force here because California inexplicably failed to raise the Teague defense both in the district court and on appeal.
We will not save the state from such a gaffe. The Supreme Court has enforced strict procedural forfeitures on habeas petitioners in the interests of efficient and final adjudication. Why should not the state be similarly held to a pedestrian rule of appellate procedure? Concerns of federalism and respect for a state’s criminal judgments are marginal here because the state brought the problem on itself.
In short, Granberry provides the best analogy — and consequently the best guidance — for the resolution of this case. Granberry held courts of appeal have discretion to find waiver, and on facts analogous to those presented here, this circuit has found waiver. Accordingly, we will not entertain the state’s new rule claim.
The state’s other arguments lack merit. The petition for rehearing is DENIED.
. Because the Supreme Court’s attention has been focused upon the process due to defendants in capital cases, we must be careful not to confuse the rules applicable to capital and non-capital sentencing. See Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977) (plurality opinion) (Williams was decided before the Court recognized that “death is a different kind of punishment from any other"). Williams appears to remain the starting point for analyzing sentencing hearings in non-capital cases. See Creech v. Arave, 947 F.2d 873, 880 (9th Cir.1991); Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir.1987).
. In Youngblood, the Court noted the Teague rule is not "jurisdictional.” Youngblood, 110 *1536S.Ct. at 2718. As authority for this proposition, the Court provided the following citation: "Cf. Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 ... (Eleventh Amendment defense need not be raised and decided by the Court on its own motion)." Id. This might suggest the Court sees the Eleventh Amendment as the best analogy for the resolution of this case. Without more explicit guidance from the Court, however, we will not delve into the Eleventh Amendment when Granberry is so close at hand.