Leavitt

ORDER AMENDING OPINION, DENYING PETITION FOR REHEARING, AND DENYING PETITION FOR REHEARING AND FOR REHEARING EN BANC AND AMENDED OPINION

ORDER

In light of the decision of the United States Supreme Court in Schriro v. Sum-merlin, — U.S. —, 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004), we amend our opinion filed on June 14, 2004, and commencing at slip op. 7773 1 as follows:

(1) We revoke the introductory paragraph and subparagraph A under part VI SENTENCING ISSUES, which appear at slip op. 7818(688), and substitute the following in their place:

(2) We revoke the last sentence of part VIII, which appears at slip op. 7829(694) and substitute the following in its place:

(3) We revoke the CONCLUSION, which appears at slip op. 7829(694), including footnote 41 thereof, and substitute the following in its place:

CONCLUSION

With the above amendments, A.J. Arave’s petition for rehearing is DENIED. Richard A. Leavitt’s petition for rehearing and for rehearing en banc is also DENIED.

OPINION

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…

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…