Fetterly

In 1993, we entertained an appeal by petitioner Fetterly from a denial by the district court of his petition for a writ of habeas corpus. Rather than decide the substantive claims in his petition, however, we deferred submission and issued a limited remand to the district court for further proceedings. We concluded that the district court erred in denying Fetterly a stay he requested in order to exhaust in state court newly identified federal constitutional claims. Our remand included an order to the district court to permit Fetterly to amend his petition to add newly exhausted claims.

On remand, Fetterly’s petition was eventually resolved by the district court as to his sentence of death. The district court ordered resentencing, and the State of Idaho acquiesced in that order. The State correctly points out, however, that Fetterly should not be resentenced until we resolve his pending habeas claims going to the validity of his convictions; and Fetterly agrees. Thus, we have stayed the district court’s resentencing order, and we now proceed to the merits of his claims, each of which was rejected by the district court in 1990. In so doing, we borrow heavily without attribution…