dissenting from the order rejecting the suggestion for rehearing en banc:
The Supreme Court has told us in no uncertain terms that we may not delay federal habeas proceedings so the petitioner can litigate unrelated claims in state court. In re Blodgett, — U.S.-,-, 112 S.Ct. 674, 676, 116 L.Ed.2d 669 (1992). Rather, our duty is “to take all steps necessary to ensure a prompt resolution of the matter....” Id.
The district judge here followed this prescription to the letter: He adjudicated expeditiously the claims Fetterly raised in his ■ federal habeas petition and refused to stay proceedings to let Fetterly exhaust an unrelated claim in state court. On appeal, a panel of our court reverses. Without even a nod to Blodgett, the panel holds that the district judge abused his discretion by doing what the Supreme Court said he must do. Refusing to look at the claims actually decided by the district court, the panel holds the appeal in limbo so Fetterly can litigate a claim he did not raise and could not have raised in his habeas petition. As Yogi Berra is said to have said,- it’s deja vu all over again.
The panel’s cold shoulder to Blodgett is but the first of many errors. The opinion also manages to ignore or misapply Estelle v. McGuire, — U.S. -, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). It’s as if the panel figured that, since it was just remanding, it didn’t need to get the law right. But such wholesale disregard of Supreme Court precedent has no place among the published opinions of the United States Court of Appeals. And, sure enough, the mischief spawned by this opinion has not been long in coming. Like Frankenstein’s monster, its rationale has overtaken even its creator. Compare Hamilton v. Vasquez, slip op. 1515, — F.3d - (9th Cir. Feb. 3, 1994) (majority opinion), with id. at 1551, at - (Trott, J., dissenting) (both opinions relying on Fetterly).
Moreover, this is a remand order with important substantive consequences: The state’s right to prompt adjudication of the habeas petition is permanently impaired and petitioner is allowed to shoehorn into his first habeas petition a claim that wasn’t ripe when he litigated his case in the district court. This is not a case, then, where errors committed now can be corrected later; the panel’s opinion permanently compromises the law of the case and the law of the circuit. It is highly regrettable, therefore, that the full *1473court has not seen fit to take the case en banc.
I
A decade ago, Donald Fetterly was convicted of the first degree murder of Sterling Grammer, an acquaintance of his ex-mother-in-law. After an aggravation and mitigation hearing two months later, an Idaho judge sentenced Fetterly to death. Applying the prevailing interpretation of Idaho’s sentencing statute, the judge weighed the mitigating evidence against all the aggravating factors taken together (instead of against each aggravating factor separately). The sentencing judge found that the aggravating factors predominated. Fetterly appealed his death sentence to the Idaho Supreme Court, State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), and then filed a state request for post-conviction relief, State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988) — all without success.
In an unrelated case decided six years after Fetterly’s conviction and sentencing, the Idaho Supreme Court held, as a matter of state law, that a sentencing judge must weigh all of the mitigating evidence against each aggravating factor separately. State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989).
Soon thereafter, Fetterly filed a federal habeas petition but failed to allege any error involving Charboneau; nor could he, having never raised the issue in state court. Some months later, Fetterly’s new attorney became aware of Charboneau and filed a second state habeas petition, raising the issue and claiming Fetterly’s trial counsel had been ineffective for failing to pursue it earlier. Fetterly also asked the district court to stay his federal habeas proceeding while he went about exhausting state remedies on the Charboneau issue. Fetterly no doubt wanted to keep the case in the district court so he could fold his Charboneau claim into his first federal petition, avoiding the cause and prejudice hurdle of McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
The district court refused to stay the ease, Fetterly v. Paskett, 744 F.Supp. 966, 976 (D.Idaho 1990), proceeded to adjudicate the claims raised in Fetterly’s petition, Fetterly v. Paskett, 747 F.Supp. 594 (D.Idaho 1990), and resolved them all against him. While the case was pending on appeal before us, the Idaho Supreme Court rejected Fetterly’s Charboneau-based state habeas petition, holding that Fetterly’s sentence was consistent with Idaho sentencing law at the time his conviction became final and refusing to apply Charboneau retroactively, Fetterly v. State, 121 Idaho 417, 825 P.2d 1073, 1075 (1991) (“[T]he Charboneau interpretation of I.C. § 19-2515 does not apply to the present case because the present case was final prior to the issuance of Charboneau.”).
Our panel does not deal with the substantive issues decided by the district court. Instead, it reverses the order denying Fetterly a stay of federal habeas proceedings while he was exhausting his Charboneau claim in state court. The panel remands for the district court to adjudicate Fetterly’s newly exhausted claim, all the while keeping Fetterly’s stay of execution firmly in place.
A. McCleskey, Rose, Blodgett Errors
In McCleskey v. Zant, the Supreme Court held that a state prisoner must raise all available claims in his first federal habeas petition. Claims raised in later petitions must be dismissed as an “abuse of the writ” unless the petitioner can show “cause and prejudice.” McCleskey, 499 U.S. at 493-94, 111 S.Ct. at 1470. Fetterly did raise all of his available claims at the time he brought his federal petition, but later discovered another (his Charboneau claim) that he had not raised and could not raise because he hadn’t yet exhausted it in state court: Had Fetterly amended his petition to add his Charboneau claim, the district court would have had to dismiss the entire petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Thus, at the time petitioner discovered his Charboneau claim (and the related ineffective assistance of counsel claim), he faced three unpalatable choices: He could raise the Charboneau claim in federal court, precipitating an- immediate dismissal of the entire petition under Rose; he could wait and raise it as part of a successive petition, in which *1474ease it might be barred by McCleskey; and, finally, he could ask for dismissal of the first petition without^ prejudice so he could go exhaust his Charboneau claim, in which case he would lose his federal stay of execution, to which he was entitled only so long as his first petition was being adjudicated. See, e.g., Campbell v. Blodgett, 997 F.2d 512, 520 (9th Cir.1993) (stay of execution dissolved once federal petition dismissed).
Fetterly’s only way out of this trilemma was to obtain a stay of the federal proceedings while he exhausted his Charboneau claim and the panel obliges. But, since when is a federal habeas petitioner entitled to put federal proceedings on hold while he finishes up his business in state court? A stay of federal habeas proceedings, after all, is also a stay of defendant’s death sentence, impairing the state’s legitimate interest in carrying out the sentence promptly. In re Blodgett, — U.S. at -, 112 S.Ct. at 676. This interference is justified only so long as the petitioner is busy litigating his federal claims; we have no authority to stay a death sentence while the petitioner is doing nothing at all in federal court.
The panel’s ruling raises a troubling question: May a federal court drag out a stay of execution for no purpose other than to let petitioner pursue a claim that would require immediate dismissal of the petition if it were actually presented? The answer seems obvious to me: If the federal district court was without jurisdiction to consider Fetterly’s Charboneau claim because it was yet unex-hausted, it’s an abuse of the writ — and a blatant end run around McCleskey and Rose — for the same court to maintain a stay of execution solely to support that claim.1
But we need not speculate; the Supreme Court has already given us the answer. In re Blodgett is materially indistinguishable from our case. The panel there effectively stayed federal proceedings on appeal while the petitioner exhausted various claims in state court. An exasperated Supreme Court said no:
The orders by the Ninth Circuit to vacate submission of the case until completion of the state collateral proceeding and then to hold the ease in abeyance pending filing and resolution of the third federal habeas proceeding in the District Court raise the very concerns regarding delay that were part of the rationale for this Court’s decisions in Rose v. Lundy ... and McCleskey v. Zant.... Adherence to those decisions, and their prompt enforcement by the district courts and courts of appeals, will obviate in many cases what the Court of Appeals here seems to perceive to be the necessity for accommodating multiple filings.
— U.S. -, -, 112 S.Ct. 674, 676, 116 L.Ed.2d 669 (1992) (citations omitted). The Court focused particularly on the duty of the federal courts to act swiftly when there is a stay of execution in place:
In a capital case the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case.
Id. (emphasis added).
If this ease is at all distinguishable from Blodgett, it presents an even stronger case for refusing the stay. The Blodgett panel held the proceedings in abeyance so the petitioner could file successive petitions after exhausting his claims in state court; such petitions would still have been subject to the cause and prejudice requirement of McCles-key. Here, the panel stays proceedings to help petitioner circumvent McCleskey: “[W]ere we to close the door on Fetterly at this juncture, he would no doubt file a second *1475petition in the district court based on these same claims. If so, we would see the same claims again, but they would be encumbered with all the new issues that come with subsequent petitions.” Fetterly v. Paskett, 997 F.2d 1295, 1302 (9th Cir.1993). Is it really appropriate to use our stay power as an artifice for avoiding the Supreme Court’s rulings?
As the court that drew the Supreme Court’s ire in Blodgett, we have a special responsibility to tread lightly and avoid the same misstep again. At the very least, we must acknowledge Blodgett and try to explain why we think the Supreme Court’s admonitions are inapplicable. The panel’s silence on this point is more than a little remarkable.
B. McGuire, Godfrey Errors
At about the same time as Blodgett, the Supreme Court also reversed us for using habeas review to correct state law errors. “Today,” the Supreme Court told us, “we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions.” Estelle v. McGuire, — U.S. at -, 112 S.Ct. at 480. A state’s failure to apply its laws properly, the Supreme Court said, did not, in and of itself, violate due process. Id. at -, 112 S.Ct. at 482.
Without mentioning McGuire, the panel revives the notion that a federal court may second-guess a state supreme court’s application of state law. The issue here, it will be recalled, is whether Fetterly must be resen-tenced under the Idaho sentencing statute as interpreted by Charboneau — a state law case decided long after Fetterly’s conviction became final. But when and how state law applies to . a particular case is a matter on which the state supreme court has the last word. Here, the Idaho Supreme Court refused to apply Charboneau to Fetterly’s case, holding that it only applied prospectively, i.e., to defendants whose cases had not become final on direct appeal when Charboneau
came down. Fetterly, 825 P.2d at 1074-75. This surely is a judgment a state supreme court is entitled to make in interpreting and applying state law.
The panel faults the Idaho Supreme Court on two grounds. First, the panel says due process is offended whenever state courts do not give a defendant — even one whose conviction and sentence have become final on direct appeal — the benefit of a new interpretation of state law. 997 F.2d at 1301. Second, the panel says that failing to apply Charboneau in Fetterly’s case denies him the proportionality review to which he is entitled under Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). 997 F.2d at 1299. Neither argument holds water.
As to due process, the panel says that “the failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state.” Id. at 1300. This is in direct conflict with Estelle v. McGuire, — U.S. -, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), which held that a. state court’s determination that a defendant is not covered by a particular state law rule is not cognizable on federal habeas, id. at -, 112 S.Ct. at 480, and does not give rise to a due process claim, id. at -, 112 S.Ct. at 482. Is there a way to reconcile this apparent conflict? The panel sayeth naught.2
The panel also relies on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), where the Court found a due process violation based on a state court’s refusal to apply a change in state law to Hicks’s case alone. 997 F.2d at 1300. Hicks precedes McGuire and may have been overruled or narrowed by it. But assuming Hicks is still entirely good law, it only prevents a state court from denying an isolated defendant the benefit of a state law that applies to everyone else.
What does this have to do with Fetterly? The Idaho Supreme Court didn’t single out Fetterly by arbitrarily refusing him, and him alone, the benefit of the new interpretation. *1476No, what the court said is that Charboneau would be applied only to those defendants whose convictions had not yet become final. The distinction between prospective and retrospective application, it noted, is one the U.S. Supreme Court has approved in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and has applied to its own cases, see, e.g., Trevino v. Texas, — U.S. -, -, 112 S.Ct. 1547, 1550, 118 L.Ed.2d 193 (1992) (relying on distinction in Griffith between final and pending cases when applying Batson’s peremptory challenge rule). How, then, can it violate due process for a state supreme court to limit the retroactive sweep of its decisions precisely the same way?
Equally untenable is the panel’s alternate theory that failure to apply the law retroactively violates Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), because “others similarly sentenced in Idaho have been and will necessarily be treated differently” if they benefit from a new sentencing procedure while petitioner here does not. 997 F.2d at 1299. Godfrey and other cases do require that state supreme courts conduct proportionality review, which compares the sentence in each death case with those imposed in other, similar cases. But the need to conduct proportionality review surely does not mean — as the panel seems to say — that all changes in the state’s capital sentencing law must be applied retroactively to all defendants on death row.
This is clear from Arave v. Creech, — U.S. -, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), another recent Supreme Court case the panel ignores. Creech was the first defendant sentenced after the Idaho Supreme Court reinterpreted its sentencing law in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). Creech argued that Osborn did not narrow the statute enough to ensure meaningful proportionality review, and in support he cited cases decided after his own.3 The Supreme Court rejected those cases, noting they were irrelevant for purposes of Godfrey review: “None of the [subsequently decided] decisions on which the dissent relies, or upon which Creech asks us to invalidate his death sentence, influenced either the trial judge who sentenced Creech or the appellate judges who upheld the sentence.” Creech, — U.S. at -, 113 S.Ct. at 1544. This fatally undermines the panel’s rationale: Since Godfrey review may be conducted only by comparison with prior cases, it can be satisfied if Fetterly was sentenced under the same sentencing regime as other pre-Charbo-neau defendants.
He clearly was. The Idaho Supreme Court neatly grouped defendants into two categories: earlier ones who do not get the benefit of Charboneau and later ones who do. Fetterly’s sentence was compared with others sentenced the same way he was. See Fetterly, 825 P.2d at 1074 (“We have not applied the Charboneau decision to any case that was final prior to the issuance of Char-boneau on April 4, 1989.”). This case is thus no different from one where the sentencing statute changed; post-Charboneau defendants will have their proportionality review conducted vis-a-vis other defendants sentenced in accordance with Charboneau, while pre-Charboneau defendants like Fetterly have their review conducted vis-a-vis others in their class.
The panel may be making a subtler argument. It may think Fetterly must be sentenced like later defendants to provide a meaningful pool of cases for comparison under Godfrey. This is a plausible argument but also foreclosed by Creech. Creech was the first defendant to whom the post-Os&o-ra statute was applied; there were thus no prior cases with which to compare his sentence. Subsequent cases, the Court told us, were irrelevant. Creech thus was in a class by himself, yet the Court did not seem to think this rendered Godfrey review impossible or meaningless.
The only rational conclusion to be drawn from Creech is that Godfrey proportionality review does not require identical sentencing schemes. State judges can compare sentences imposed on earlier defendants even *1477when the wording or interpretation of the sentencing statute has changed somewhat. The point, after all, is not to freeze the sentencing law in place, but to ensure that death sentences are carried out only in the most egregious eases. Comparisons for this purpose can be based on the facts and circumstances of the various cases, even though the sentences may have been imposed under different statutory standards.4
Whether its misunderstanding stems from McGuire or Godfrey, the panel’s holding that any new interpretation of the sentencing law must apply retroactively to all inmates on death row has alarming implications. Not only will every reinterpretation or amendment of the capital sentencing statute give each inmate on death row a right to demand resentencing and start the process of collateral and tertiary review from scratch, but it also will make state supreme courts think twice about their rulings. Much as they may want to give the statute a narrowing interpretation or construe it to operate more fairly, state supreme court justices will have to consider that every defendant awaiting execution will have to be resentenced under that new interpretation. Godfrey was never meant to produce such a bizarre result.5
C. Teague Errors
The Supreme Court has told us repeatedly not to apply new constitutional rules on collateral review of state convictions.6 See, e.g., Stringer v. Black, — U.S. -, -, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992); Butler v. McKellar, 494 U.S. 407, 412-14, 110 S.Ct. 1212, 1216-17, 108 L.Ed.2d 347 (1990); Saffle v. Parks, 494 U.S. 484, 487-88, 110 S.Ct. 1257, 1259-60, 108 L.Ed.2d 415 (1990); Penry v. Lynaugh, 492 U.S. 302, 329, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989); Teague v. Lane, 489 U.S. 288, 299-310, 109 S.Ct. 1060, 1069-75, 103 L.Ed.2d 334 (1989). Notwithstanding the Court’s crystal clear pronouncements, the panel rushes headlong to apply a new, incredibly broad rule retroactively to this petitioner without even explaining why it may do so.7
What’s the panel’s new rule? It is that state supreme courts violate due process and *1478the Eighth Amendment when they refuse to apply a new construction of a criminal sentencing statute retroactively to defendants whose decisions have become final.8 Does the panel articulate the rationale for its opinion? Not in so many words. However, the panel’s ruling turns on its disagreement with the Idaho Supreme Court as to whether Fet-terly is entitled to benefit from Charboneau. Since the state supreme court’s refusal to apply Charboneau to Fetterly’s case was based on a particular rationale — that state habeas petitioners are not entitled to the benefit of a new construction of a sentencing statute — the panel must be saying that this rationale violates due process. 997 F.2d at 1300 (describing Idaho Supreme Court’s refusal to apply Charboneau retroactively as. a “failure of a state to abide by its own statutory commands” which violates due process).
Is this rule new? You bet it is. I am aware of no authority for the proposition that a state supreme court violates due process by choosing to apply a new interpretation of a state (sentencing) statute only to cases not yet final on appeal. Everything the Supreme Court has said on the subject has been to the contrary. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 326-28, 107 S.Ct. 708, 715-16, 93 L.Ed.2d 649 (1987); Trevino v. Texas, — U.S. -, -, 112 S.Ct. 1547, 1550, 118 L.Ed.2d 193 (1992).
This portion of the panel’s ruling, incidentally, is not limited to death cases. As best I can tell, its holding — that a state violates due process by refusing to apply one of its decisions retroactively to prisoners whose conviction and sentence have become final — is generally applicable in all criminal cases. The effect of this ruling on the prison population in the nine states of this circuit is difficult to predict, but it surely will not be trivial.
The panel also announces a narrower rule applicable to death cases only: that Godfrey requires a state to apply any changes in its death sentencing statute to all inmates on death row. This too is new and different; this too requires application of Teague.
Moreover, the panel seems to think it may put off the Teague issue until remand:
[T]he Charboneau issue is shrouded by other legal issues that are best litigated in district court.... Does Teague v. Lane stand in Fetterly’s way as claimed by Idaho’s Attorney General?
997 F.2d at 1302 (citations omitted).
This is one of the panel’s most obvious mistakes. The Teague inquiry is a threshold question, not the stuff of remands or subsequent determinations. In announcing a new rule, courts must first determine whether— pursuant to Teague — the rule will be applied retroactively. So the Supreme Court has thrice told us:
In our view, the question “whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision. ” Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross section requirement should be extended to the petit jury, we should ask whether such a rule would be applied retroactively to the case at issue.
Teague, 489 U.S. at 300-01, 109 S.Ct. at 1070 (plurality opinion) (citations omitted) (emphasis added) (brackets inserted by the Court). Again: “Under Teague, we address the ret-roactivity issue as a threshold matter because Penry is before us on collateral review.” Penry v. Lynaugh, 492 U.S. 302, 329, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989). And yet again: “As he is before us on collateral review, we must first determine whether the relief sought would create a new rule under our holding in Teague ... and Pen-ry.... If so, we will neither announce nor *1479apply the new rule sought by Parks unless it would fall into one of the two narrow [Teag-ue ] exceptions.” Saffle v. Parks, 494 U.S. 484, 487-88, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990) (citations omitted).9
Parks is of particular significance and underscores why the announcement of the substantive rule may not be divorced from the Teague analysis: If the rule the habeas petitioner seeks is barred by Teague, the federal court may “neither announce nor apply the new rule.” 494 U.S. at 487, 110 S.Ct. at 1260. The panel here both announces a new rule in a published opinion and applies it to petitioner by reversing the district court for legal error. In so doing, the panel overlooks yet another body of Supreme Court case law.
^ 4s ^ ^ ‡
Any one of the errors discussed here — the panel’s flouting of Blodgett, its circumvention of McCleskey, its disregard of McGuire, its misreading of Godfrey or its refusal to abide by Teague — would, by itself, render this opinion untenable. An opinion that commits all these errors has no place in the case law of this circuit. We have a responsibility to put our own house in order. I dissent.
. The case would be different had the defendant overlooked an available claim and later asked the district court for leave to amend the petition to include that claim. Under our liberal amendment rules, the district court would probably have abused its discretion in refusing leave to amend. Even if petitioner had finished exhausting a previously unexhausted claim while the case was still in district court, he might well have been entitled to amend the petition to include the newly-exhausted claim. But what the defendant here wanted — and what the panel gives him — is a federal stay of his death sentence while he exhausts an unexhausted state claim. Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993).
. The panel does say that "Ninth Circuit precedent generally supports this proposition," 997 F.2d at 1300, but the two Ninth Circuit cases it cites — Ballard v. Estelle, 937 F.2d 453 (9th Cir. 1991), and Hernandez v. Ylst, 930 F.2d 714 (9th Cir. Apr. 1991) — both precede McGuire. To the extent they may have once supported the panel’s conclusion, they’ve been overtaken by McGuire.
. He could cite no prior cases because all such cases had been decided under the pre-Osborn interpretation of the statute.
. If this were not the case, it would be impossible to conduct proportionality review as to the first defendant sentenced after a death sentencing jstatute is amended. Worse, it could preclude the imposition of any death sentence under such a statute: Once the first death sentence is knocked 'out on this basis, there would no longer be anyone with whom to compare the second death sentence, so it too would have to be vacated, ad infinitum.
. Judge Trott’s concurrence suggests that the procedure of Idaho Code section 19-2315(c), as interpreted by Charboneau, is constitutionally required because it was adopted in response to Supreme Court cases such as Gregg and Godfrey. See generally Trott concurrence at 1481-83. But the panel’s opinion says the contrary: "There is, of course, nothing in the Constitution of the United States that requires Idaho's legislature to approach balancing as it has done in Idaho Code § 19-2515(c).” 997 F.2d at 1300. This means that Idaho was free to adopt either a death penally sentencing procedure that balances all mitigating factors against each aggravating factor or balances all aggravating and mitigating factors against each other. Since, according to the panel's own ruling, either of these procedures would satisfy Gregg, Godfrey, etc., I fail to understand how Fetterly’s Eighth Amendment rights were violated because he was sentenced in accordance with one constitutionally acceptable procedure rather than another.
. This rule has two exceptions, neither of which applies here. The panel’s rule does not "placet ] ‘certain kinds of primary, private conduct beyond the power of the criminal law-making authority to proscribe.’ ” Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 1073, 103 L.Ed.2d 334 (1989) (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)). After all, the panel's opinion doesn’t make the murder Fetterly committed legal. Nor is the panel's new rule the sort “without which the likelihood of an accurate conviction is seriously diminished.” Id., 489 U.S. at 313, 109 S.Ct. at 1077. Whether changes in sentencing jurisprudence apply retroactively is not "central to an accurate determination of innocence or guilt.” Id. The defendant is still guilty (or innocent, for that matter) regardless of how the sentencing judge weighs the mitigating evidence.
. The panel mentions Teague only long enough to observe that Teague did not mandate the state supreme court's refusal to apply Charboneau retroactively. See 997 F.2d at 1298 n. 1. True but irrelevant. The question is not whether Teague required the state court’s ruling, but whether Teague permits our ruling. On the latter issue, the panel is pretty much mum.
. The new federal rule the panel announces is not Charboneau itself, of course. Charboneau is an interpretation of state law which was not in any way influenced by federal constitutional concerns. The rule of decision in our court is the applicability of Charboneau to Fetterly's case. The panel here is saying that Fetterly is entitled to have Charboneau applied to his case because failure to do so violates due process and the Eighth Amendment. This is the new federal rule, and a mighty sweeping one at that.
. The only exception to this rule was announced in Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990), where the Supreme Court held that it need not raise the Teague issue sua sponte when the parties did not raise it. Here, as the panel notes, the State has raised Teague vigorously. See 997 F.2d 1302.