Donald Kenneth Fetterly v. David Paskett, Warden, Idaho State Prisons and Jim Jones, Attorney General of the State of Idaho

Donald Fetterly comes to us sentenced to death by the State of Idaho. Among his claims on appeal from a denial by the district court of his petition for a writ of habeas corpus is a claim that he should have been granted a stay to exhaust in state court newly identified Constitutional claims. Fet-terly’s newly appointed counsel had discovered these claims and wanted to include them in Fetterl/s petition. Counsel’s request for a stay was denied, and Fetterly’s petition was not amended. These new claims relate to admitted irregularities in the manner in which the sentencing court determined Fet-terly must die for the murder of Sterling Grammer.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253 (1988), and we order a limited remand to the district court with instructions to permit Fetterly to amend his petition so he may litigate his newly exhausted claims.

I

On December 15, 1983, Donald Fetterly was convicted by a jury in Idaho of the premeditated murder of Sterling Grammer. In a subsequent sentencing hearing, the trial court sitting without a jury found as statutorily aggravating circumstances that (1) the murder was especially heinous, atrocious or…