Because Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], did not overrule Walton v. Arizona (1990) 497 U.S. 639, it was not error for the district judge, rather than the jury, to determine the aggravating circumstances in a capital case. A presentence interview in a capital case is a “critical stage” for Sixth Amendment purposes, to which the right to counsel attaches, and this is not a new rule within the meaning of Teague v. Lane (1989) 489 U.S. 288. The Court of Appeals could not determine, on this record, whether the error was harmless, and remanded on that issue. Judge Pregerson concurred separately on the Apprendi-Walton issue. The Court of Appeals did not reach the question of whether the “heinous, atrocious or cruel” aggravating test passes constitutional muster, because this factor did not have a “substantial and injurious effect or influence” on the court’s determination. Under Idaho Code § 19-2719, which requires a capital defendant to file, within 42 days of the entry of judgment, any legal or factual challenge to the sentence or conviction that is known or reasonably should be known, petitioner’s ineffective assistance of counsel claims were procedurally defaulted because they were not filed within the 42-day limit. However, the Court of Appeals also held that the operation of this law frustrates the exercise of a federal constitutional right, because during this 42-day period, petitioner had no one to review the record objectively for ineffective assistance of counsel claims, and, in fact, had no record to review because the Idaho statute does not provide for the expedited delivery of the record. Accordingly, the federal court could reach the claim, and the matter was remanded for an evidentiary hearing on the ineffective assistance claims. Although the Fifth Amendment does apply to a presentence interview with the probation department in a capital case, and this is not a new rule within the meaning of Teague v. Lane (1989) 489 U.S. 288, because petitioner was advised that he could exercise his right to remain silent during the presentence interview, his Fifth Amendment rights were not violated. A presentence interview in a capital case is a “critical stage” for Sixth Amendment purposes, to which the right to counsel attaches, and this is not a new rule within the meaning of Teague v. Lane (1989) 489 U.S. 288. The Court of Appeals could not determine, on this record, whether the error was harmless, and remanded on that issue. Although the Fifth Amendment does apply to a presentence interview with the probation department in a capital case, and this is not a new rule within the meaning of Teague v. Lane (1989) 489 U.S. 288, because petitioner was advised that he could exercise his right to remain silent during the presentence interview, his Fifth Amendment rights were not violated.