The omission of a premeditation charge from a state court attempted murder information, combined with its inclusion in the jury instruction, constituted a variance. Although premeditation was a sentence-enhancing provision under California law on the date petitioner’s conviction became final, the discrepancy between the information and the jury instructions was a variance and was harmless beyond a reasonable doubt. Had the omission required an amendment of the information, the omission would have been prejudicial per se. After Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], California’s treatment of premeditation as a sentencing factor in People v. Bright (1996) 12 Cal.4th 652, 669, is open to question. That issue is avoided here, however, under the non-retroactivity principle of Teague v. Lane (1989) 489 U.S. 288. The district court erred in finding that petitioner had failed to exhaust his state remedies by neglecting to present his claims as a federal constitutional violation. Here, petitioner invoked his Sixth Amendment right to be informed of the nature and cause of the accusation during his state court habeas proceedings, and the invocation of the Sixth Amendment’s text was sufficient to keep the issue alive in state court, even though the briefs predominately cited state court cases. The fact that the certificate of appealability (COA) does not mention the district court’s finding on the exhaustion issue does not prevent the appellate court from reviewing the issue. Absent an explicit statement by the district court to the contrary, the reviewing court should construe the district court’s order granting a COA as having granted it with respect to procedural and substantive rulings on the constitutional claim. After Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], California’s treatment of premeditation as a sentencing factor in People v. Bright (1996) 12 Cal.4th 652, 669, is open to question. That issue is avoided here, however, under the non-retroactivity principle of Teague v. Lane (1989) 489 U.S. 288. Petitioner’s trial counsel was not ineffective in failing to earlier detect the variance, because the failure to detect it did not prejudice the defense.