Concurring in the Order rejecting the suggestion for rehearing en banc:
Estelle v. McGuire, — U.S. -, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), which Judge Kozinski believes has been ignored,1 merely reprises the unremarkable and longstanding proposition that ‘“federal habeas corpus relief does not lie for errors of state law.’ ” Id. at -, 112 S.Ct. at 480 (quoting Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)). Estelle v. McGuire is not a landmark decision. It simply reiterates the settled law and then applies it to a pending case.
Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), appears to be better authority for the instant case than Estelle v. McGuire because the issue in Hicks is more similar to the issues raised by Fetterly. Whereas Estelle v. McGuire deals with the admissibility of evidence and limiting jury instructions, Hicks demonstrates how a state law sentencing error can be a deprivation of a due process interest protected by the Constitution:
It is argued that all that is involved in this case is the denial of a procedural right of exclusively state concern. Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner’s right to liberty is a denial of due process of law.
Id. at 346, 100 S.Ct. at 2229 (citations and footnote omitted). Substitute “life interest” for “liberty interest” in this quotation and it is easy to see that Hicks is apposite.
Estelle v. McGuire does not hold, nor has it ever been held, that a deficiency amounting to a state law error can never violate the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2241 (1988). What is clear from Estelle v. McGuire is that the *1480demonstration of an error under state law does not ipso facto equate to the demonstration of a denial of due process under the Constitution. But a State may not terminally slam the habeas door in a federal court’s face merely by alleging that all it did was break its own axial rules in sentencing someone to death. The incantation by a State of “state law error” certainly should signal caution to a federal court hearing a petitioner’s claim under habeas, but it does not put an end to the inquiry — it begins it.
So the question presented when we confront an error of state law is, “yes, but does what happened to the defendant-petitioner also ascend to the level of a violation of fundamental fairness as protected by the Fourteenth Amendment and, as in this ease, as guarded against by the Eighth Amendment?” One can read Estelle v. McGuire itself to see how this works. See also Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923).
In the case of Donald Fetterly, no one disputes his claim that the judge who sentenced him to death failed to apply the state statute governing how the crucial decision between life and death shall be made. No one can dispute Fetterly’s claim that under Idaho law, the state trial court “did not engage in the balancing procedure mandated by the legislature.” Fetterly v. State, 121 Idaho 417, 825 P.2d 1073, 1081 (1991) (Bist-line, J., dissenting on denial of petition for rehearing). This structural failure is materially different from a misapplication of an aggravating circumstance to the facts of a case. Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102. So the question for us is whether the sentencing judge’s failure to follow an essential element of the controlling state sentencing statute was just a violation of state law, or was it also the kind of breach or defect that violates the Eighth and Fourteenth Amendments?
On the merits of whether Idaho’s sentencing failure was more than just a state law error, i.e., whether it also violated the Eighth and the Fourteenth Amendments, the issue is reasonably straightforward. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court told the States that the Constitution would permit them to impose the death penalty for certain offenses, but only if they regularly followed procedures that would ensure that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Id. at 189, 96 S.Ct. at 2932. Four years later in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the Court repeated the requirement that these procedures provide “a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” Id. at 427, 100 S.Ct. at 1764 (quoting Gregg, 428 U.S. at 188, 96 S.Ct. at 2932) (internal quotations omitted). As Justice Powell said in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), “Beginning with Furman the Court has attempted to provide standards for a constitutional death penalty.... ” Id. at 111, 102 S.Ct. at 875 (emphasis added). Justice Scalia summed up the Court’s jurisprudence on this issue in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring in part and concurring in the judgment):
Over the course of the past 15 years, this Court has assumed the role of rule-making body for the States’ administration of capital sentencing — effectively requiring capital sentencing proceedings separate from the adjudication of guilt, see, e.g., Woodson v. North Carolina, 428 U.S. 280, 301-305 [96 S.Ct. 2978, 2989-2992, 49 L.Ed.2d 944] (1976) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 195 [96 S.Ct. 2909, 2935, 49 L.Ed.2d 859] (1976) (opinion announcing judgment), dictating the type and extent of discretion the sen-tencer must and must not have, see, e.g., Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] (1978) (plurality opinion); Godfrey v. Georgia, 446 U.S. 420 [100 S.Ct. 1759, 64 L.Ed.2d 398] (1980), requiring that certain categories of evidence must and must not be admitted, see, e.g., Skipper v. South Carolina, 476 U.S. 1 *1481[106 S.Ct. 1669, 90 L.Ed.2d 1] (1986); Booth v. Maryland, 482 U.S. 496 [107 S.Ct. 2529, 96 L.Ed.2d 440] (1987), undertaking minute inquiries into the wording of jury instructions to ensure that jurors understand their duties under our labyrinthine code of rules, see, e.g., Caldwell v. Mississippi, 472 U.S. 320 [105 S.Ct. 2633, 86 L.Ed.2d 231] (1985); Mills v. Maryland, 486 U.S. 367 [108 S.Ct. 1860, 100 L.Ed.2d 384] (1988), and prescribing the procedural forms that sentencing decisions must follow, see, e.g., McKoy v. North Carolina, 494 U.S. 433, [110 S.Ct. 1227, 108 L.Ed.2d 369] (1990). The case that began the development of this Eighth Amendment jurisprudence was Furman v. Georgia, 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972) (per curiam), which has come to stand for the principle that a sentencer’s discretion to return a death sentence must be constrained by specific standards so that the death penalty is not inflicted in a random and capricious fashion.
Id., 497 U.S. at 657, 110 S.Ct. at 3059 (citations omitted). “No adequate procedures, no death penalty” has been the constant message from the Court.
To comply with these instructions, Idaho enacted very specific statutes. One of these statutes, Idaho Code § 19-2515(c), prescribes unequivocally the exact manner in which the pivotal life or death decision shall be made by the sentencing judge. What could be of more importance in the process than the life or death decision itself? This statute was not followed when Fetterly was sentenced to die. Stripped to its essentials, Idaho’s argument amounts to a claim that it is currently empowered to impose the death penalty because it has adopted adequate procedures to eliminate arbitrariness, procedures mandated by the Constitution as interpreted by the Supreme Court in Gregg and its progeny, but it is also free at the moment of making the life or death decision not to follow those procedures in a given case.
Informed by Hicks, I believe Fetterly’s claim eolorably implicates both a life and a liberty interest specifically protected by both the Eighth and Fourteenth Amendments. What good are crucial Constitutional rules established in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Gregg if the States are free not to follow them in their essentials once they are on their books? Just a state law problem? The Supreme Court has advised us that
under the Eighth Amendment “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” Accordingly, many of the limits that this Court has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion.
Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983)). In Caldwell, the Court overturned a séntence of death because a prosecutor’s remarks misled the sentencing jury to believe that the responsibility for determining the appropriateness of the defendant’s death lay with an appellate court. In discussing the importance of the life and death decision itself, the Court said:
Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an “awesome responsibility” has allowed this Court to view sentencer discretion as consistent with — and indeed as indispensable to — the Eighth Amendment’s “need for reliability in the determination that death is the appropriate punishment in a specific ease.”
Id., 472 U.S. at 330, 105 S.Ct. at 2640 (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2998, 49 L.Ed.2d 944 (1976)). Woodson could not be clearer on this issue:
[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
*1482This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
Woodson, 428 U.S. at 304-05, 96 S.Ct. at 2991 (citations omitted) (emphasis added).
In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Justice Stewart focused on the Constitutional importance of properly weighing the pertinent circumstances reflecting on the appropriate penalty. Justice Stewart said about that Case — which cannot be said about what occurred in the instant case — that “[t]he directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” Id. at 258, 96 S.Ct. at 2969. In Fetterly’s case the instructions given by the Idaho statute to the sentencing judge were not followed, period.
No matter where one looks, the answer is the same. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Court said it this way:
From the point of view of society, the action of the sovereign in taking the life of one of its citizens ... differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.
Second, it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.
Id. at 357-58, 97 S.Ct. at 1204-05 (citations omitted) (emphasis added).
Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), picks up this theme: “Thus, although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.” Id. at 885, 103 S.Ct. at 2747.
In Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), then Justice Rehnquist made this observation: “One question that has arisen is whether defendants must be resentenced when trial courts erroneously consider improper aggravating factors. If the trial court found that some mitigating circumstances exist, the case will generally be remanded for resentencing.” Id. at 954-55, 103 S.Ct. at 3427.
This analysis also finds support in Mills v. Maryland 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), a ease in which a sentence of death was reversed because the Court found a “barrier” to the sentencer’s proper “consideration of all mitigating evidence”:
Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case. The possibility that petitioner’s jury conducted its task improperly certainly is great enough to require resentencing.
Id. at 383-84, 108 S.Ct. at 1870 (emphasis added). In Fetterly’s case, there is more than a possibility that his sentencer conducted his task improperly vis-a-vis the mitigating evidence: we know this is precisely what happened. In the words of Zant, this presents a “colorable claim” of Constitutional error. See also Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 *1483(1978) (“[T]he risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.... is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.”).
Justice O’Connor’s reflection in her concurrence in Eddings v. Oklahoma, 455 U.S. 104 at 118, 102 S.Ct. at 878, (1982), is pertinent: “[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” Here, the sentence imposed was unquestionably determined by a sentencing judge who made a crucial organic mistake as to the manner in which he was required to use the various circumstances to make his decision.
Gregg is reduced to a hollow promise if a State may ignore the essentials of its own Greggr-required rules regarding the manner in which the core decision of who shall live and who shall die is made. What other core death penalty decision-making deviations will be tolerated in the name of state law error? If this one, why not all? Do we only care about what is in a state’s statutes and not what actually happened to a defendant? Where is the product of the “‘meaningful basis for distinguishing the few eases in which [the death penalty] is imposed from the many in which it is not’” in circumstances where the sentencing judge fails to follow the critical statute? Where does the judge get the authority to sentence a person to die if not from a statute? By definition, the life or death decision necessarily becomes arbitrary if the manner in which it is made is not authorized by the controlling law. The relevant definition of “arbitrary” is, “established by a court or judge rather than by a specific law or statute.” Webster’s II New Riverside University Dictionary (1984). Once a state has chosen a Constitutionally valid approach, it must stick to the script. It would appear that this kind of a violation is precisely what habeas is designed to address.
Judge Kozinski is concerned that our holding will spill over into other areas. I do not have that fear. This is a death penalty case, and it involves the life or death decision itself. It is a mistake to assume that our holding could be successfully cited for the proposition that all state law sentencing errors amount to a denial of due process. See Zant v. Stephens, 462 U.S. at 885, 103 S.Ct. at 2747 (“[N]ot every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment. ...”).
Judge Kozinski also says we must turn away Fetterly’s sentencing claim because of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which prohibits the application of a new Constitutional rule on collateral review of state convictions. The point Judge Kozinski appears to have missed is that Fetterly asks only that he be sentenced in conformity with the statute on the books at the time he was sentenced. He seeks neither the retroactive application of a “new” holding nor the benefit of a “new rule.” Judge Kozinski miscasts Charboneau as involving a “new construction of a state sentencing statute” (emphasis added). Not so. In Charboneau the Idaho Supreme Court clearly said that all it was doing was reading the controlling statute word for word as it was written. There was nothing “new” in Charboneau, just a recognition of what was already there in the form of direction from the legislature. I repeat here what was quoted in our panel opinion as the basis for the Idaho Supreme Court’s decision granting a new sentencing hearing to Charboneau: “If the legislature had intended the mitigating circumstances to be weighed against all the aggravating circumstances found as a group, it would have referred ‘to the aggravating circumstances found.’ The plain meaning of the statute dictates our conclusion on this issue.” 774 P.2d at 323 (emphasis added).
No rule “dictated ” by anything is a “new rule.” How do we know this? Because the Supreme Court said so in Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990): “[A] decision announces a new rule ‘ “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” ’ ” Id. at 412, 110 S.Ct. at 1216 (quoting Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) (quoting Teague, 489 U.S. *1484at 301, 109 S.Ct. at 1070)) (emphasis in original).
Moreover, our panel opinion has neither fashioned nor applied a “new rule.” Furman, Gregg, Godfrey, Woodson, Proffitt, Eddings, Gardner, and Hicks all predate Fet-terly’s conviction, and certainly dictate the result in this case.
Judge Kozinski complains we have given In re Blodgett, — U.S. -, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992), the “cold shoulder.” But I respectfully believe he misstates Blod-gett when he claims we have been told by the Court “we may not delay federal habeas proceedings so the petitioner can litigate unrelated claims in state court.” What the Court said was as follows:
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. at -, 112 S.Ct. at 676 (emphasis added).
The procedural complexities in the case of Charles Rodman Campbell and the delays as detailed in Blodgett are not comparable to the instant case. Moreover, unlike the instant case, Blodgett involved a second petition in federal court, not a first filing. The handling of Fetterly’s case has been fully consistent with our duty to give full and fair consideration to all of the issues presented in the case, and consistent with the sworn responsibility of federal judges to guard against a State’s wish to execute a prisoner who may well have been denied his rights as a citizen of the United States to the due process of law guaranteed by the Fourteenth Amendment, and whose sentence of death may have been arbitrary in violation of the Eighth Amendment. Because of the unusual posture in which this issue comes to us — it was not heard on its merits by the district court — we are unable to render a final decision on it, but it does appear that it constitutes a “colorable claim” deserving of a hearing, and that it was error for the district court to have denied Fetterly the stay he requested.
. Because this opinion attempts to answer Judge Kozinski's dissenting opinion from the rejection of the suggestion for rehearing en banc, the reader would be well advised to read Judge Ko-zinski’s opinion first.