Circuit Judge, with whom W. FLETCHER, Circuit Judge, concurs:
We concur in Judge Pregerson’s opinion as to Parts I through IV. However, we deliver the opinion of the court as to Part V.
Hoffman argues that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Idaho’s capital sentencing statute unconstitutionally deprives him of the right to have a jury — rather than a judge — determine the presence of an aggravating circumstance, a determination that could result in a sentence of death. In Apprendi, the Supreme Court announced a general rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2362-63. Hoffman contends that the presence of an aggravating circumstance should be treated as an element of a capital case to be decided by the jury rather than as a factor in sentence enhancement to be decided by the judge.
In Walton v. Arizona, the Supreme Court addressed a similar sentencing scheme and held that the presence of an aggravating circumstance in a capital case may constitutionally be determined by a judge rather than a jury. 497 U.S. 639, 647-48, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). The Supreme Court in Apprendi did not overrule Walton. It wrote:
Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.
Apprendi, 120 S.Ct. at 2366 (citing Walton, 497 U.S. at 647-49, 110 S.Ct. 3047; Id. at 709-14, 110 S.Ct. 3047 (Stevens, J. dissenting)).
We are aware that four dissenting Justices in Apprendi asserted that Apprendi effectively overruled Walton, and that one concurring Justice stated that Walton could be reexamined on “another day.” But while Apprendi may raise some doubt about Walton, it is not our place to engage in anticipatory overruling. The Supreme Court has specifically directed lower courts to “leav[e] to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 207, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). We therefore conclude that Walton forecloses Hoffman’s Apprendi-based challenge to Idaho’s capital sentencing scheme.
VI.
CONCLUSION
We REMAND to the district court for an evidentiary hearing on petitioner’s inef*543fective assistance of counsel claims in accordance with this opinion. We REVERSE the district court’s ruling that the Fifth and Sixth Amendments did not apply to petitioner’s presentence interview, and defer judgment whether the denial of counsel during petitioner’s presentence interview constitutes harmless error until after the ineffective assistance of counsel hearing. We AFFIRM the district court’s denial of all other claims.
PREGERSON, Circuit Judge,concurring separately in the result of Part V:
I respectfully disagree with the majority’s conclusion that Walton forecloses Hoffman’s Apprendi-based challenge to Idaho’s capital sentencing scheme.
The specific question whether the presence of an aggravating circumstance in a capital case is a matter to be determined by a jury was answered in the negative by the Supreme Court in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), which was decided ten years before Apprendi. Resolution of Hoffman’s claim thus requires consideration of the present viability of Walton in light of Ap-prendi, and analysis of whether the holding of Apprendi extends to the determination of an aggravating circumstance under Idaho’s capital sentencing scheme.
Idaho argues that Hoffman’s Apprendi claim was procedurally defaulted because he failed to exhaust this claim in state court, or alternatively, that requiring a jury to determine the presence of the statutory aggravating circumstance would impose a new rule in violation of Teague. Although the Apprendi claim may have been procedurally defaulted,27 Idaho’s capital appellate sentencing statute requires mandatory review of the entire record for sentencing errors by the Idaho Supreme Court. See Idaho Code § 19-2827; Beam v. Paskett, 3 F.3d 1301, 1306 (1993), overruled on other grounds by Lambright v. Stewart, 191 F.3d 1181 (9th Cir.1999). Sentencing errors are thus treated as implicitly raised, removing the bar of procedural default. Id. As discussed below, I would find that requiring a jury to determine beyond a reasonable doubt the presence of aggravating circumstances in a capital case constitutes a new rule. ' I would conclude, however, that it falls within one of the two exceptions to the Teague non-retroactivity doctrine and would therefore consider the Apprendi claim on the merits.
A. Idaho’s First Degree Murder Statute
Before 1977, Idaho law imposed the death penalty for all first degree murder convictions. See Idaho Code § 18-4004 (1976) (“[ejvery person guilty of murder in the first degree shall suffer death”). After the Supreme Court invalidated North Carolina’s mandatory death penalty statute in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the Idaho Supreme Court held that the Idaho first degree murder statute was unconstitutional. See State v. Lindquist, 99 Idaho 766, 768, 589 P.2d 101 (1979) (noting that the Idaho statute was “virtually identical” to the North Carolina statute). The Idaho legislature responded to Woodson by making two critical statutory changes: first, the legislature changed the language of § 18^4004 to allow for the option of death or life imprisonment;28 second, the legisla*544ture amended § 18-4004 to incorporate a new statutory section. Under this new section, § 19-2515, the trial judge, before the death penalty can be imposed, is required to find the presence of a statutory aggravating circumstance and then determine that the aggravating circumstance outweighs any mitigating evidence. See id.
As a result of the 1977 statutory changes, a capital defendant’s conviction and imposition of the death sentence by the judge occur in two stages. First, Idaho must obtain a first degree murder conviction from the jury by proving beyond a reasonable doubt that the defendant committed one of the crimes enumerated in Idaho Code § 18-4003(a-f).29 Second, the jury having found the defendant guilty of first degree murder, the judge must hold a separate sentencing hearing. Based on the evidence presented at the hearing, the judge must: (1) find beyond a reasonable doubt that at least one of ten enumerated aggravating circumstances is present; and then (2) determine that the aggravating circumstance(s) outweigh(s) any mitigating evidence. If the state fails to persuade the trial judge beyond a reasonable doubt of the existence of an aggravating circumstance, the defendant cannot be sentenced to death. Idaho Code § 19 — 2515(h). “Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one statutory aggravating circumstance.” Idaho Code § 19 — 2515(f).
In accordance with its statutory scheme, Idaho charged Hoffman with first degree murder on the ground that the murder was perpetrated by willful, deliberate, and premeditated killing. See Idaho Code § 18^4003(a). The jury returned a verdict of guilty on the first degree murder charge. The trial judge then conducted a sentencing hearing without a jury, at which witnesses and the defendant testified. The judge found the presence of two statutory aggravating circumstances in Hoffman’s case, determined that they outweighed the mitigating evidence, and imposed the death sentence.
B. Apprendi v. New Jersey
The Supreme Court in Apprendi considered a challenge to a New Jersey hate crime statute. The statute required the trial judge to determine at sentencing if the crime was motivated by “a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Apprendi, 120 S.Ct. at 2351 (quoting N.J. Stat. Ann. § 2C: 44 — 3(e) West Supp.2000). If the court made such a statutory finding, it could impose an “expanded” prison term. Id. The hate crime statute thus permitted the judge to impose an additional term of imprisonment beyond the maximum sentence prescribed for the offense for which the defendant was convicted. Id.
Although the New Jersey Supreme Court characterized the hate crime enhancement as a “sentencing factor,” the Supreme Court held that the enhancement *545was an element of the offense, which should have been considered by the jury. Id. at 2353, 2363.30 The Supreme Court concluded that all facts which increase the penalty beyond the prescribed statutory maximum must be found by a jury to exist beyond a reasonable doubt.31 Id. at 2363 (“It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt”) (quoting Jones, 526 U.S. at 252-53, 119 S.Ct. 1215 (Stevens, J. concurring)).
The Supreme Court provided clear instructions for distinguishing sentencing factors from elements of an offense: “the relevant inquiry is not one of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 2365. The Court applied the test to the New Jersey hate crime statute, and found that the hate crime enhancement turned a second degree offense into a first degree offense. Id.
Under Idaho’s death penalty scheme, a defendant is not actually “death-eligible” after a jury convicts him of first degree murder.32 Rather, at the conclusion of the first degree murder conviction, the defendant is only eligible for a sentence of life imprisonment. Idaho Code § 19-2515(c). The defendant is not death-eligible until the trial judge finds the presence of an aggravating circumstance. Id. If the trial judge finds an aggravating circumstance, the judge then has the task of weighing the statutory aggravating circumstance against all of the mitigating evidence to determine if the defendant should receive life in prison or the death penalty. Id.
Just as the presence of the hate crime enhancement transformed a second degree offense sentence into a first degree offense sentence under the New Jersey hate crime statute, the presence of an aggravating circumstance here transforms a life sentence into a potential death sentence under the Idaho death penalty scheme. There can be no doubt that a death sentence is *546an increased penalty beyond life imprisonment. It is equally clear that the presence or absence of an aggravating circumstance is a factual determination. I would therefore conclude that the determination of the presence or absence of an aggravating circumstance in a capital case is a factual determination that increases the potential sentence from life imprisonment to capital punishment, and thus must be submitted to the jury under Apprendi. By allowing the judge to determine facts that increased the potential penalty from life imprisonment to death, Idaho Code § 19-2515 deprived Hoffman of his right to a jury trial in violation of the Sixth and Fourteenth Amendments.
C. Walton v. Arizona
The Supreme Court rejected a similar challenge to the trial judge’s role in a state capital sentencing scheme in Walton v. Arizona, 497 U.S. 639, 649, 110 S.Ct. 3047, 111 L.Ed.2d 511. (1990).33 In Walton, the Court held constitutional a statutory scheme in Arizona that permitted the trial judge, rather than a jury, to find the presence of aggravating circumstances. In dissent, Justice Stevens argued that the presence of aggravating circumstances functioned as a necessary element of a death sentence and required a jury trial. See id. at 709, 110 S.Ct. 3047 (Stevens, J., dissenting).
The Supreme Court in Apprendi was divided over whether Walton survives Ap-prendi. The majority opinion, written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg, distinguished Walton from Apprendi. See Apprendi, 120 S.Ct. at 2366. The majority opinion in Apprendi, referring to Walton, suggested that under the bifurcated Arizona scheme, the defendant was “death-eligible” once the jury found him guilty of first degree murder. Id. (describing Walton as holding that “once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed”) (quoting Almendarez-Torres, 523 U.S. at 257, n. 2, 118 S.Ct. 1219. (Scalia, J. dissenting)).
The concurring opinion of Justice Thomas acknowledged the tension between Walton and Apprendi, but found that it was “a question for another day.” See id. at 2380.
Dissenting Justices O’Connor, Rehnquist, Kennedy, and Breyer argued that Apprendi directly conflicts with Walton:
The distinction of Walton offered by the Court today is baffling, to say the least. The key to that distinction is the Court’s claim that, in Arizona, the jury makes all of the findings necessary to expose the defendant to a death sentence. As explained above, that claim is demonstrably untrue. A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty.
Id. at 2388 (O’Connor, J., concurring) (internal citations omitted).
Thus, it appears that four justices considered Walton to survive Apprendi,34 one *547justice deferred the question, and four justices expressed the view that Apprendi overruled Walton. In the absence of a majority position about the continued viability of Walton, I turn for guidance to the Court’s reasoning in Apprendi.
The reasoning of Apprendi, that any assessment of facts that increases the maximum penalty must be submitted to the jury and proved beyond a reasonable doubt, persuades me that a jury must find the presence of an aggravating circumstance beyond a reasonable doubt before a death sentence can be inflicted upon a defendant convicted of first degree murder under Idaho’s bifurcated statutory scheme.
D. The Teague Nem-Retroactwity Exception for Watershed Rules of Criminal Procedure
Apprendi, and its precursor, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), were both decided after Hoffman’s conviction became final. Under Teague, Hoffman, as a petitioner in a federal habeas proceeding, cannot receive the benefit of a new rule of law unless the rule falls within one of two exceptions. The requirement that the jury rather than the trial judge determine the presence of a statutory aggravating factor in a capital case before a death sentence can be imposed is a new rule of law which cannot be applied to this case unless the rule falls within one of the two Teague exceptions.
The Supreme Court in Teague recognized an exception, frequently referred to as the “second exception,” relevant in this case, for “those watershed rules of criminal procedure” that “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague ).35 Thus, the question in Hoffman’s case is whether extending Apprendi to the determination of an aggravating circumstance in a death penalty case constitutes a fundamental rule of criminal procedure sufficient to satisfy the second exception.
Since the Supreme Court decided Teag-ue a decade ago, federal courts have struggled to discern the meaning of this second exception. See Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (“[T]he precise contours of this exception may be difficult to discern.”); Gaines v. Kelly, 202 F.3d 598, 604 (2d Cir.2000) (describing the scope of the second exception as a “difficult question” unaided by the “relatively sparse guidance” of the Supreme Court). Despite ambiguity over the definition, courts have applied the second exception to a range of constitutional rules of criminal procedure. See, e.g., Ostrosky v. Alaska, 913 F.2d 590, 594-95 (9th Cir.1990) (announcing a new due process rule concerning mistake of law defenses and finding that the rule falls within the Teague exception for “procedures implicit in the concept of ordered liberty” ); Hall v. Kelso, 892 F.2d 1541, 1543 n. 1 (11th Cir.1990) (finding as an exception the rule announced in Sand-strom v. Montana regarding burden shifting instructions); Graham v. Hoke, 946 F.2d 982, 994 (2d Cir.1991) (finding as an exception the rule announced in Cruz, that non testifying codefendant’s confession may not be admitted); Williams v. Dixon, 961 F.2d 448, 454-56 (4th Cir.1992) (finding as an exception the Mills rule striking the unanimity requirement in jury findings of mitigating evidence); Gaines, 202 F.3d *548at 604 (finding as an exception the Cage rule that describing reasonable doubt in terms of grave or substantial uncertainty and requiring a “moral certainty” violates due process).
I would find that the issue at stake in this case — the right to have a jury determine facts that increase the potential penalty from life imprisonment to death — is the kind of fundamental rule of criminal procedure that should be applied retroactively under the second Teague exception. The Supreme Court announced in Appren-di that “[a]t stake in this ease are constitutional protections of surpassing importance.” Apprendi, 120 S.Ct. at 2355. The Court characterized the right to a jury trial of every element of the offense and the standard of proof, beyond a reasonable doubt, as “basic principles” of our legal system, noting
there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Id. at 2359, 2366.
I would adhere to the Supreme Court’s characterization of the rule at stake in Apprendi and find that the right to a jury determination of an element of capital murder, the presence of an aggravating circumstance, is a “bedrock right” within the meaning of the second Teague exception. I would thus apply the rule announced in Apprendi to Hoffman’s case and find that he was denied his Sixth and Fourteenth Amendment due process right to a jury trial when the trial judge, rather than the jury, found the presence of the statutory aggravating circumstances, necessary to the imposition of the death penalty.
E. Harmless EiTor
Although I conclude that Idaho Statute § 19-2515 unconstitutionally requires the judge rather than the jury to find the presence of aggravating circumstances, the error appears harmless in Hoffman’s case. See Satterwhite, 486 U.S. at 256, 108 S.Ct. 1792. The error is harmless unless the trial judge’s determination of the presence of the aggravating circumstance had a “substantial and injurious effect” on Hoffman’s sentence. See Bains, 204 F.3d at 964.
The trial judge found that the aggravating circumstance, that the victim was a witness or a potential witness in a legal proceeding, was proved beyond a reasonable doubt. At no point during the trial, sentencing proceeding, or appeal process has Hoffman contested that the victim was a witness or potential witness.
Given the fact that there is no dispute that the aggravating circumstance was present, I would not find that Hoffman’s sentence was adversely affected by the fact that the trial judge, rather than .the jury, made this determination. Accordingly, I would conclude that the trial judge’s determination of the presence of the aggravating circumstance in this case is harmless error.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
. Hoffman filed a motion before sentencing with the trial court to "have a jury empaneled for the purpose of sentencing, or in the alternative, to serve in an advisory capacity to the trial court.” See State of Idaho v. Hoffman, 123 Idaho 638, 643, 851 P.2d 934 (1993). The trial court denied the motion, and Hoffman appealed the denial in his consolidated appeal to the Idaho Supreme Court. Id. The Idaho Supreme Court ruled that the Idaho Constitution does not require that a jury rather than a judge determine sentencing. Id. Because Hoffman appears to have raised the right to a jury trial on state constitutional grounds alone, the federal grounds arguably were defaulted.
. The amended statute remains the same today. See Idaho Code § 18-4004 ("Punishment for murder. Subject to the provisions *544of § 19-2515, Idaho Code, every person guilty of murder of the first degree shall be punished by death or by imprisonment for life.”).
. Idaho Code § 18-4003 defines the following offenses as first degree murder: murder perpetrated by means of poison, lying in wait, torture; murder perpetrated by willful, deliberate and premeditated killing; murder of any peace officer, executive officer, officer of the court, fireman, judicial officer or prosecuting attorney; murder committed by a person under a sentence for murder of the first or second degree; murder committed in the perpetration of or attempt to perpetrate, aggravated battery on a child under 12 years of age, arson, rape, robbery, burglary, kidnaping or mayhem; any murder committed by a person incarcerated in a penal institution upon a person employed by the penal institution, another inmate of the penal institution or a visitor to the penal institution; any murder committed by a person while escaping or attempting to escape from a penal institution. Idaho Code § 18-4003(a)-(f).
. Apprendi extended the Court’s previous ruling in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court held that the provisions of a federal car jacking statute that permitted the imposition of greater penalties are elements of the offense, and require a jury to determine the underlying facts. See Jones, 526 U.S. at 252, 119 S.Ct. 1215. The Court found that a contrary interpretation would raise constitutional questions, because the Fifth and Sixth Amendments require submission to the jury of facts that increase the punishment beyond that authorized by the statute. Id. at 240-49, 119 S.Ct. 1215.
. The Supreme Court qualified this holding by declining to overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi, 120 S.Ct. at 2355. In Almendarez-Torres, the Supreme Court considered the statutory scheme for sentencing aliens once deported who return to the United States without permission. Although the general penalty for violating the applicable statute is two years of incarceration, the statute authorizes an additional prison term of up to twenty years for aliens who were removed subsequent to a felony conviction. Almendarez-Torres, 523 U.S. at 226, 118 S.Ct. 1219. The Supreme Court found that the provision authorizing the additional prison term was a penalty provision, rather than a separate crime, and therefore concluded that the indictment did not need to list the prior conviction as an element of the offense. Id. The Supreme Court described this holding as “at best, an exceptional departure.” Apprendi, 120 S.Ct. at 2361. In Apprendi, the Court noted that "it is arguable that Almenda-rez-Torres was incorrectly decided,” and stressed the fact that the petitioner in Almen-darez-Torres did not contest the underlying convictions. Id.
.As discussed earlier, the first degree murder conviction alone does not sufficiently guide the discretion of the sentencer to allow for the imposition of the death penalty. See, e.g., State v. Lindquist; see also Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)("North Carolina's mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die.”)
. The Supreme Court granted certiorari in Walton because the Ninth Circuit ruled en banc in Adamson v. Ricketts, 865 F.2d 1011 (1988), that the Arizona death penalty was unconstitutional on the same grounds asserted by Walton. See Walton, 497 U.S. at 647, 110 S.Ct. 3047.
. Included in this count is Justice Stevens, the author of Apprendi. It is questionable, however, whether Justice Stevens considers Walton still good law, given his concurring opinion in Jones v. United States. In Jones, Justice Stevens explained that "in [his] view, a proper understanding of this principle [that it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties] encompasses ... facts that must be established before a defendant may be put to *547death.” Jones, 526 U.S. at 253, 119 S.Ct. 1215. Justice Stevens continued, ‘‘[i]f ... the Court’s opinion in Walton v. Arizona departed from that principle, as I think [it] did, [it] should be reconsidered in due course." Id. (internal citations omitted).
. The Court described two categorical exceptions in Teague: (1) rules that place primary individual conduct outside of the power of criminal law to proscribe, and (2) watershed rules of criminal procedure. Teague, 489 U.S. at 307, 109 S.Ct. 1060. The "watershed rules of criminal procedure” is thus sometimes referred to as the “second exception” to Teague.