Robert Frederick Garceau v. Jeanne Woodford, Acting Warden of San Quentin State Prison

ORDER

Despite the fact that it “explicitly declined to invoke Teague,” either in the trial court or in this court, Garceau v. Woodford, 275 F.3d 769 , 781 n. 1 (9th Cir.2001) (O’Scannlain, J., dissenting), the State, in its petition for rehearing, asks us to invoke the rule of Teague v. Lane, 489 U.S. 288, 310 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), that a “new rule” of constitutional law cannot be applied retroactively to cases on collateral review, and to deny relief to petitioner on that ground. We decline the invitation under the law of our circuit. See Boardman v. Estelle, 957 F.2d 1523, 1534 (9th Cir.1992) (“We deny the petition for rehearing because the state has waived the Teague defense in this case ”X Although we there noted that “[t]he Supreme Court has not yet decided whether a state may waive the Teague defense by failing timely to raise it,” id., the Court has since declined to dispose of a ease on the ground that a “new rule” was involved “because petitioner[State warden] did not raise a Teague defense in the lower courts or in his petition for certiorari.” Godinez v. Moran, 509 U.S. 389 , 397 n. 8, 113 S.Ct. 2680 , 125 L.Ed.2d 321 (1993) (citations omitted).…