Leavitt

concurring:

I concur in the per curiam opinion, but as to parts I and IV, I do so for somewhat different reasons.

I. THE INNOCENCE INSTR UCTION

The Idaho trial court gave numerous instructions on the state’s burden of persuasion, 2 and, while it was at it, gave an instruction on the presumption of innocence, which Leavitt neither objected to nor presented as a separate issue to the Idaho Supreme Court. 3 That instruction read as follows:

The State essentially argues that even if the instruction injected a note of ambiguity into the trial performance, issuance of a writ of habeas corpus on that account is barred by Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). When a state argues “that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 , 114 S.Ct. 948, 953 , 127 L.Ed.2d 236 (1994). Thus, I shall do that.

As is well known, the Teague rule provides that: “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before…

Richard A. Leavitt, a State of Idaho prisoner under sentence of death, brought a petition for habeas corpus in the district court. 28 U.S.C. § 2254 . He filed a myriad of attacks on his conviction and sentence, ranging from alleged evidentiary errors through instructional errors and onto attacks on the Idaho death penalty scheme. He also asserted ineffective assistance of counsel. The district court granted habeas corpus relief on one claim: the assertion that a burden of proof instruction violated Leavitt’s due process rights. However, it denied relief as:to all of his other claims.

The State of Idaho appeals the former, and Leavitt appeals the latter. We reverse as to the former, affirm as to all of the latter, with the exception of an ineffective assistance of counsel claim, and remand for further proceedings.

BACKGROUND

In the small town of Blackfoot, Idaho, on July 17, 1984, the victim ’ of this brutal crime, Danette Elg, was viciously attacked in her own bedroom by a knife-wielding assailant. The relentless and merciless assault took place on her waterbed and with such implacable force that the bed itself was punctured and torn, while the victim sustained numerous cuts…