Petitioner Marvin Edwin Johnson, a Florida death row inmate, appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. A panel of this court concluded that Johnson was entitled to an opportunity to prove the ineffective assistance of sentencing counsel claim contained in his second federal habeas petition. This is so, the panel concluded, notwithstanding the fact that the claim is procedurally defaulted because Johnson did not present the claim to Florida courts under Florida's procedural rules, notwithstanding the fact that there was no "cause" for his having failed to do so, and notwithstanding the fact that he did not present the claim in his first federal habeas petition. Johnson v. Dugger, 911 F.2d 440, 444 (11th Cir.), vacated, 920 F.2d 721 (1990). He is entitled to pursue the claim, the panel majority concluded, because he "has proffered evidence which if true would establish that he probably was actually innocent of the death sentence he received." Id. at 477. The en banc court decided to review the case primarily to address the question of what it means to be "actually innocent" of a death sentence. We conclude that Johnson is not actually innocent of the sentence he received and affirm the district court's denial of habeas relief.

In June 1978, Warrington Pharmacy in Pensacola, Florida, was robbed. In the course of that robbery Woodrow Moulton, a pharmacist and the owner of the pharmacy, was shot and killed. Marvin Edwin Johnson was indicted for first-degree murder and armed robbery. The Supreme Court of Florida summarized the State's evidence at trial as follows:

Gary Summitt, an employee of Warrington Pharmacy and an eyewitness to the robbery and the murder, testified that while working at the pharmacy on the evening of June 7, 1978, he went to the back of the store to ask the pharmacist, Woodrow Moulton, a question. There he saw the defendant Johnson holding a gun on Moulton who was at the pharmacy safe putting articles in a bag, and he heard Johnson order Moulton to put certain drugs and money from the safe into the bag. After obtaining the drugs and money, Johnson started towards the front of the store. Moulton then grabbed a gun from behind the prescription counter. There was an exchange of gunfire, and Moulton continued to fire at Johnson until his gun was emptied. No longer able to defend himself, Moulton stood up with his hands in the air. Johnson then walked up to within a foot and a half of the defenseless pharmacist, said "You think you're a smart son-of-a-bitch, don't you?", and shot him in the chest.

Johnson v. State, 393 So. 2d 1069, 1071 (Fla.1980), cert. denied, 454 U.S. 882, 102 S. Ct. 364, 70 L. Ed. 2d 191 (1981).

On December 8, 1978, a jury found Johnson guilty of first-degree murder and armed robbery.1 The next day, the same jury, acting in an advisory role, recommended Johnson be sentenced to life imprisonment on the murder conviction. About one month later, at the close of a sentencing hearing before the trial judge, the judge overrode the advisory jury's recommendation and sentenced Johnson to death.2 In his written findings, the judge found five statutory aggravating circumstances and no statutory mitigating circumstances.3

Johnson appealed his convictions and sentence to the Supreme Court of Florida.4 That court unanimously affirmed his convictions. Johnson v. State, 393 So. 2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S. Ct. 364, 70 L. Ed. 2d 191 (1981). The court also affirmed Johnson's sentence, by a vote of four justices to three.5 Id. The governor of Florida signed a death warrant in May 1982.

Rather than seeking habeas relief in the state courts pursuant to Florida Rule of Criminal Procedure 3.850, Johnson petitioned the district court for the Northern District of Florida for a writ of habeas corpus. Johnson's counsel in that proceeding later told the state supreme court that "they elected to raise only certain claims and assumed that they could always come back to state court and raise others." Johnson v. State, 536 So. 2d 1009, 1011 (Fla.1988).6 The State did not raise the defense of failure to exhaust state remedies7 and thus waived that defense. See Pennington v. Spears, 779 F.2d 1505 (11th Cir.1986). The district court, after initially granting a stay of execution, denied the petition and thereafter denied Johnson's motion to alter or amend the district court's judgment.

Johnson appealed to this court, raising seven issues: (1) whether the state trial court's refusal to consider lingering doubt about the certainty of proof violated the Eighth and Fourteenth Amendments; (2) whether the state trial court improperly refused to consider or weigh nonstatutory mitigating circumstances; (3) whether the state trial court's exclusion of expert testimony on factors affecting the reliability of eyewitness identification was unconstitutional; (4) whether prosecutorial misconduct during the cross-examination of Johnson at trial rendered the trial fundamentally unfair; (5) whether the district court improperly denied discovery regarding Johnson's claim of a due process violation by the Supreme Court of Florida; (6) whether the imposition of a death sentence by a trial court following a jury recommendation of life is unconstitutional; and (7) whether an alleged error of fact in the Supreme Court of Florida's decision, relating to Johnson's use of the term son-of-a-bitch, improperly affected the determination of aggravating circumstances in this case.

Three claims asserted in the district court were not argued on appeal and were deemed abandoned. See Johnson v. Wainwright (Johnson I), 806 F.2d 1479, 1481 n. 5 (11th Cir.1986), cert. denied, 484 U.S. 872, 108 S. Ct. 205, 98 L. Ed. 2d 157 (1987). Those claims were: the claim that the trial judge erred in the application of the Tedder standard (an issue Johnson is raising in the present proceeding); the claim that photographs of the interior of the pharmacy were improperly admitted; and the claim that the Supreme Court of Florida erred in not remanding the case for resentencing after it struck one of the aggravating circumstances found by the trial judge. This court addressed all of Johnson's other claims on the merits, and we affirmed the district court's denial of relief. Johnson I, 806 F.2d at 1482-87. Johnson's second death warrant was signed in March 1988.

On April 10, 1988, three days before his scheduled execution, Johnson petitioned the Supreme Court of Florida for a writ of habeas corpus and a stay of execution. The court denied the requested relief the next day, reaching the merits of all of Johnson's claims. Johnson v. Dugger (Johnson II), 523 So. 2d 161 (Fla.1988).8 On the same day Johnson petitioned the Supreme Court of Florida for habeas relief, he also filed a motion in the state trial court for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.9 There, Johnson for the first time claimed that his sentencing counsel rendered ineffective assistance by failing to present evidence of Johnson's good character and by failing to present and develop available psychological evidence at sentencing.10 The trial court denied the motion for post-conviction relief on April 11, 1988, because the motion had not been filed prior to January 1, 1987, as required by rule 3.850. The Supreme Court of Florida stayed Johnson's impending execution and reviewed the trial court's judgment. The supreme court agreed that the motion had not been timely filed and consequently the court ruled that it was procedurally barred. Johnson v. State (Johnson III), 536 So. 2d 1009, 1011 (Fla.1988). Two justices dissented; they believed that despite the procedural bar, the court should have reached what they believed was a potentially meritorious issue (the ineffective assistance of counsel at sentencing issue) and remanded for an evidentiary hearing. See Johnson III, 536 So. 2d at 1012-13 (Barkett, J., dissenting).

The governor of Florida signed a third death warrant in February 1989. On March 10, 1989, six days before Johnson's scheduled execution, Johnson filed his second federal petition for habeas relief--the one we confront today.11 In his petition, Johnson presents five claims: (1) that his sentencing hearing violated the Supreme Court's decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987), because the trial judge, in overriding the advisory jury's recommendation, failed to consider nonstatutory mitigating circumstances; (2) that his appellate counsel was ineffective in not challenging on direct appeal the denial of his motion to suppress an allegedly unreliable and suggestive photographic identification procedure; (3) that the Florida courts, by permitting the trial judge to override the jury's recommendation in this case, have applied their reviewing standard in such a manner as to result in an arbitrary and capricious imposition of the death sentence, in violation of the Eighth and Fourteenth Amendments; (4) that his trial counsel, by failing to prepare a rebuttal to the state's ballistics and crime-scene reconstruction evidence, was ineffective; and (5) that his trial counsel rendered ineffective assistance both by not ensuring that a proper mental health examination was conducted prior to his sentencing hearing before the advisory jury and by failing to conduct any additional investigation between the initial sentencing hearing and the sentencing hearing before the trial judge.

On March 14, 1989, the district court, without an evidentiary hearing, denied Johnson's petition. The court rejected on the merits Johnson's Hitchcock claim and his claim that appellate counsel was ineffective. The court further held that Johnson's challenge to the jury override constituted an abuse of the writ and that his claims of ineffective assistance of trial and sentencing counsel were procedurally barred. The next day, the court rejected Johnson's motion to alter or amend judgment but granted Johnson's request for a certificate of probable cause. This court granted Johnson's motion for a third stay of execution.

Johnson appealed the district court's denial of relief on all five claims. A panel of this court affirmed the district court's denial of relief on all claims except the claim of ineffective assistance of counsel at sentencing. Johnson v. Dugger, 911 F.2d at 480. With regard to that claim, a two-judge majority vacated the district court's denial of relief and remanded the claim to the district court for an evidentiary hearing. It is the resolution of that claim that is the primary force behind the en banc court's decision to revisit this case. We disagree with the panel majority's resolution of Johnson's ineffective assistance of counsel at sentencing claim, and we will devote our analysis to explaining why the district court's decision to deny relief on that claim should be affirmed. We will then briefly address Johnson's other claims.

II. JOHNSON'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING: CONTENTIONS

Johnson argues he received ineffective assistance of counsel during the sentencing phase of his trial. He contends that his court-appointed counsel at sentencing and the court-appointed psychologist who assisted counsel and testified at the sentencing hearing were unprepared to put on an effective defense. He further asserts that counsel should have and inexplicably failed to inform the psychologist of Johnson's long history of drug abuse and addiction. Had this evidence been developed, he argues, sentencing counsel would have been able to create a record that probably would have influenced the sentencing judge to agree with the jury that life imprisonment was the appropriate sentence. Even if the judge did override the jury verdict, Johnson charges, the Supreme Court of Florida would have reversed that decision pursuant to Florida's Tedder standard. That standard requires that "[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (Fla.1975).

The State argues the claim is procedurally barred and even if the claim is not procedurally barred, the decision not to develop the drug abuse evidence was a strategic one and thus cannot constitute ineffective assistance of counsel. The district court agreed that the claim is procedurally barred. The court noted that Johnson sought to raise the claim in his Florida Rule 3.850 proceedings. The Supreme Court of Florida, however, rejected the claim because Johnson had not filed his rule 3.850 petition within the rule's time constraints. Therefore, the supreme court refused to review the claim on the merits. Johnson III, 536 So. 2d at 1011.

The federal courts' authority to review state court criminal convictions pursuant to writs of habeas corpus is severely restricted when a petitioner has failed to follow applicable state procedural rules in raising a claim, that is, where the claim is procedurally defaulted. Federal review of a petitioner's claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989), and that bar provides an adequate and independent state ground for denying relief. See id. at 262, 109 S.Ct. at 1042-43; Johnson v. Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100 L. Ed. 2d 575 (1988). The doctrine serves to ensure petitioners will first seek relief in accordance with state procedures, see Presnell v. Kemp, 835 F.2d 1567, 1578-79 (11th Cir.1988), cert. denied, 488 U.S. 1050, 109 S. Ct. 882, 102 L. Ed. 2d 1004 (1989), and to "lessen the injury to a State that results through reexamination of a state conviction on a ground that a State did not have the opportunity to address at a prior, appropriate time." McCleskey v. Zant, --- U.S. ----, ----, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991).

The procedural default doctrine implicates "concerns flowing from the significant costs of federal habeas corpus review. To begin with, the writ strikes at finality." Id. at ----, 111 S.Ct. at 1468. Finality has added significance in the context of a federal attack on a state conviction. Murray v. Carrier, 477 U.S. 478, 487, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986). "Federal intrusions into state criminal trials frustrate both the state's sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Engle v. Isaac, 456 U.S. 107, 128, 102 S. Ct. 1558, 1572, 71 L. Ed. 2d 783 (1982). Federal collateral review also "places a heavy burden on scarce federal judicial resources, and threatens the capacity of the system to resolve primary disputes." McCleskey v. Zant, --- U.S. at ----, 111 S. Ct. at 1469. Finally, federal habeas review "may give litigants incentives to withhold claims ... and may establish disincentives to present claims when evidence is fresh." Id. Far more severe are the disruptions when a state's procedural rules are bypassed and a claim is presented for the first time in federal court. Cf. id., --- U.S. at ----, 111 S. Ct. at 1469.

The Supreme Court of Florida reviewed Johnson's ineffective assistance of counsel at sentencing claim in Johnson III, 536 So. 2d 1009 (Fla.1988). Johnson first asserted the claim in the trial court in April 1988, more than nine years after the conclusion of his trial and sentencing. The supreme court affirmed the trial court's denial of Johnson's motion for post-conviction relief because it had not been filed prior to January 1, 1987, as required by Florida Rule of Criminal Procedure 3.850.13 This is an adequate and independent state ground for refusing to consider this claim, Whiddon v. Dugger, 894 F.2d 1266, 1267-68 (11th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 102, 112 L. Ed. 2d 73 (1990), and the supreme court clearly and expressly rested its judgment on rule 3.850's procedural bar, see Johnson III, 536 So. 2d at 1011. The state of Florida has a significant and legitimate interest in enforcing the provision in rule 3.850 that limits the time within which challenges to criminal convictions may be brought, and no one argues otherwise.14 We conclude, as did the panel, that federal review of the claim is barred unless Johnson can show that we should apply an exception to the procedural default doctrine.

IV. THE EXCEPTIONS TO THE PROCEDURAL DEFAULT DOCTRINE

There are two exceptions to the procedural default bar. A federal court may still review the merits of Johnson's claim, despite the procedural bar, if Johnson can establish that he meets one of these exceptions. First, a procedural default may be ignored by a federal court if the petitioner can show both "cause for the default and prejudice attributable thereto." Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2644, 91 L. Ed. 2d 397 (1986); see also Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S. Ct. 2497, 2508, 53 L. Ed. 2d 594 (1977). The Supreme Court has created a narrow second exception: "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Carrier, 477 U.S. at 496, 106 S.Ct. at 2649.

We begin our analysis by examining whether Johnson has demonstrated cause to excuse his procedural default. Johnson asserts that he instructed his lawyers who were handling the state post-conviction proceeding to raise all possible grounds for relief, including any potential ineffective assistance of counsel claim.15 Johnson argues that the failure of his attorneys to raise the ineffective assistance of counsel at sentencing claim within the two-year limit imposed by rule 3.850, despite his instructions to do so, constitutes cause for his procedural default. Johnson does not tell us what standard should be applied to determine when post-conviction attorney error will amount to cause. Instead, he argues that in a situation where a prisoner specifically advises his counsel regarding what steps to take in pursuing a habeas corpus petition, and counsel fails to heed those instructions, we should not hold the prisoner to any decisions of his attorney that result in a procedural default.

After this case was briefed and argued, however, the Supreme Court decided precisely this issue adversely to Johnson. In Coleman v. Thompson, --- U.S. ----, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991), the Court held: "[t]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Id., at ----, 111 S.Ct. at 2566 (citations omitted). The Court went on to conclude that because errors of post-conviction counsel cannot be constitutionally ineffective, a petitioner "must 'bear the risk of attorney error that results in a procedural default.' " Id. (quoting Carrier, 477 U.S. at 488, 106 S. Ct. at 2645). Thus, because Johnson had no constitutional right to counsel during his post-conviction proceedings, his attorneys' errors during those proceedings cannot constitute cause to excuse his procedural default. Because Johnson has failed to establish one element of the cause and prejudice exception, he cannot show the exception applies. Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S. Ct. 1558, 1575 n. 43 (1982). To obtain review of his ineffective assistance of sentencing counsel claim, then, Johnson must establish that the second exception to the procedural default doctrine applies.

B. The Second Exception to the Procedural Default Doctrine: Actually Innocent

In certain extraordinary circumstances, a federal court has the equitable power to consider an issue notwithstanding the existence of a procedural bar. See Carrier, 477 U.S. at 495-96, 106 S.Ct. at 2649. A federal court may do so "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496, 106 S. Ct. at 2649. In addition, the Supreme Court, while acknowledging that "the concept of 'actual' as opposed to 'legal' innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense," has concluded that one may be actually innocent of the death penalty. See Smith v. Murray, 477 U.S. 527, 537-38, 106 S. Ct. 2661, 2668, 91 L. Ed. 2d 434 (1986). The actually innocent exception is alternatively known as the fundamental miscarriage of justice exception. Johnson argues that even if we decide he has not established cause for his failure to abide by Florida's procedural rules, the facts of this case demand that we invoke this second exception to the procedural default doctrine. He asserts that but for the procedural bar, his sentence of death would be vacated in favor of a sentence of life imprisonment. Therefore, according to Johnson, we must exercise our equitable powers and consider his claim on the merits in order to prevent a fundamental miscarriage of justice. The State counters that this is not an appropriate case for the invocation of the second exception to the procedural default doctrine and that to do so would be contrary to Supreme Court precedent.

It has been years since the Supreme Court's delineation of the "actually innocent" exception to the procedural default doctrine. In the context of the sentencing phase of a capital trial, however, we still have no workable definition of the exception, either from the Supreme Court or this court. A workable definition is essential to our jurisprudence because we are often faced with procedurally-defaulted claims, and many petitioners claim they meet this second exception. It is crucial that we know when to apply the exception, so as to limit our interference with the states' criminal justice systems and promote finality while simultaneously recognizing the truly extraordinary case in which a petitioner's claim must be reviewed despite a procedural bar in order to avoid a fundamental miscarriage of justice.16

The panel attempted to define the "actually innocent" exception. We reject that definition, however, for reasons which will become apparent. First we must delve a bit deeper into Johnson's allegations regarding why the exception applies here. Next we must describe the panel's holding that those allegations, if true, establish the need to invoke the actually innocent exception and the panel's proposed definition of when a petitioner is actually innocent of the death penalty. Finally, we must propose a workable definition of this exception. In so doing, we will describe why the panel's proposed definition is unacceptable.

1. Johnson's Claim of Ineffective Assistance of Counsel at Sentencing

Johnson alleges his attorneys at sentencing and his court-appointed psychologist failed to conduct a competent investigation of his psychological state. Had they done so, he asserts, they would have discovered psychological problems resulting from a long history of drug abuse and addiction. Johnson contends such an investigation would have enabled sentencing counsel to demonstrate the existence of three statutory mitigating factors, which would have precluded the jury override.17

The testimony presented by Johnson's counsel at the sentencing hearing before the advisory jury consisted of the following. A prison official from Tennessee, who had previously been called by the State, was recalled. He testified regarding Johnson's medium security classification in the Tennessee prison system before his escape from that system.18 Next, sentencing counsel called a local religious leader to testify regarding the morality of the death penalty. The State objected and the judge sustained the objection and refused to allow the witness to testify.19 Sentencing counsel's principal witness, court-appointed psychologist Ronald Yarbrough, was then called.

Yarbrough had interviewed Johnson the night before for about two and one-half hours.20 During the interview he conducted several psychological tests, and he later analyzed the results of those tests.21 From this information, Yarbrough testified, he could "draw some strong hypotheses" regarding Johnson's "behavior in various situations."22 The psychologist testified that Johnson had a "high average range of intelligence" and "an extremely high level of commonsense," but that if Johnson didn't want to apply himself to a task, he wouldn't.23 Yarbrough believed Johnson to be "in contact with reality," and not schizophrenic or psychotic.24 He found "no evidence of organic brain damage,"25 that Johnson probably had problems with authority figures,26 that he had a good relationship with his family,27 and that Johnson perceived himself as "cool" and was probably perceived as a leader within his peer group.28 Finally, Yarbrough opined that Johnson's ability to think and make decisions "deteriorates dramatically" in stressful situations, that in "extremely demanding emotional situation[§ Johnson] breaks down his normal mode of thinking, ... decision making ... [and] responding,"29 but that there was nothing to indicate that on the day of the crime Johnson did not appreciate the criminality of his conduct.30

The next witness was Johnson's sister, who testified regarding Johnson's disadvantaged background.31 Johnson's sister also testified that whatever happened to Johnson would have an effect on her;32 the final witness, Johnson's daughter, testified to the same effect.33 The advisory jury and sentencing judge were also of course free to consider the fact that Johnson did not initiate the gun battle, and were free to consider Johnson's counsels' argument at the advisory sentencing hearing (and at the second sentencing hearing before the trial judge) that Johnson's decision to shoot the pharmacist was the product of, among other things, his extreme emotional disturbance after being shot at by Moulton.

Johnson's sentencing counsel made an effort to exclude evidence regarding the details of Johnson's past and his record of violent crime. Counsel made a motion in limine to exclude such evidence, including evidence of Johnson's recent attempted escape from prison.34 Also, counsel stated that he wished to foreclose impeachment by not relying on character evidence;35 thus testimony from Johnson's sister was limited to showing his background, not his character.

Johnson now claims that Yarbrough's psychological evaluation was seriously flawed by sentencing counsel's failure to instruct Yarbrough to ask Johnson about his long history of drug abuse (and by implication, Yarbrough's failure to ask Johnson about any history of drug abuse and Johnson's failure to mention that history to Yarbrough during the interview) as well as the failure to conduct any further investigation regarding Johnson's psychological state during the month between the advisory jury hearing and the final sentencing hearing before the trial judge.

Attached to Johnson's second federal habeas petition is an affidavit in which Yarbrough indicates that when he testified he was unaware of Johnson's drug problem or the role that problem played in the murder and robbery. After examining affidavits of friends and family members regarding the severity of Johnson's drug addiction, as well as the affidavit of Dr. Peter Macaluso, an addictionologist who interviewed Johnson, Yarbrough's opinion of Johnson's psychological state is now different. He now believes that at the time of the murder Johnson "was under the influence of a totally controlling, extreme drug addiction,"36 and that Johnson's "capacity to appreciate the criminality of his behavior or to conform to the requirements of law were [sic] substantially impaired."37 Also attached to the petition are the affidavits of two doctors (including Dr. Macaluso) who interviewed Johnson in 1988. Their conclusion is similar to that of Yarbrough, that is, that at the time of the murder Johnson was consumed by an overwhelming desire to obtain drugs to feed his drug habit.

Johnson argues, and the panel majority agreed, that if these more recent psychological evaluations are true, they demonstrate that Yarbrough's preliminary conclusions as testified to in the advisory jury sentencing hearing were inaccurate. The panel majority concluded that

[t]his evidence, if true, suggests the existence of three statutory mitigating circumstances under Florida law. See Fla.Stat. Sec. 921.141(6)(b) ("The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance."); Sec. 921.141(6)(e) ("The defendant acted under extreme duress or under the substantial domination of another person."); Sec. 921.141(6)(f) ("The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.").

Johnson v. Dugger, 911 F.2d at 462. The panel majority was of the opinion that "were this case before us unencumbered with concerns of procedural default, we think it is clear that the proffered evidence would support a conclusion that Johnson was prejudiced by his sentencing counsel's failure to develop and present this evidence during sentencing before the trial judge." Id. The majority concluded that "there is a high degree of certainty that the sentencing court would not have overridden the jury verdict," id., and that under the Tedder standard, "there is a high degree of certainty that the Florida Supreme Court would not have permitted such an override had the evidence now before us been timely presented." Id. at 463.

The panel majority considered the meaning of the actually innocent exception. It proposed the following test:

[I]n order to establish a fundamental miscarriage of justice, [a petitioner] must prove that as a result of the alleged constitutional error the sentencing body's deliberative process was affected to such a degree that its ultimate conclusions are probably factually in error. In most cases, we envision that this will necessitate proof that as a result of the alleged constitutional error (1) the sentencing body was under a misperception as to the factual background of either the offender or the offense, and (2) but for those factual misperceptions held by the sentencing body, the petitioner probably would not have received a sentence of death.

Id. at 468-69 (footnote omitted) (emphasis in original).38

The panel majority noted that one method of meeting the actually innocent exception is to establish that absent an alleged constitutional violation, the sentencing body would not have found any aggravating factors. The majority "declined to hold, however, that a petitioner must establish that the constitutional error implicates all of the existing aggravating factors before a federal court should entertain a procedurally defaulted constitutional claim." Id. at 469 (emphasis in original).

Applying its newly-developed test to Johnson's case, the panel majority held that an evidentiary hearing is necessary to prevent a potential fundamental miscarriage of justice. Johnson, the majority decided, has "proffered evidence which if true would establish that he was probably actually innocent of the death sentence." Id. at 477. The dissenting judge offered quite a different view of what it means to be actually innocent of the death penalty, a view with which we agree.39

3. The Death Penalty Prior to Furman v. Georgia

The Supreme Court's treatment of the relationship between sentencing discretion, the death penalty, and the Eighth Amendment has resulted in an almost perfect jurisprudential circle.40 Prior to Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), many states authorized the death penalty for any defendant found guilty of what we reluctantly refer to as "simple murder." The death penalty was not mandatory; the jury or other sentencing authority had unlimited discretion to grant the defendant mercy and impose life imprisonment rather than the death penalty. The Supreme Court unequivocally denounced such discretion in Furman, concluding that unguided sentencing led to the discriminatory, arbitrary, and capricious imposition of the death penalty in violation of the Eighth Amendment. In short, the Court found no merit in discretion.

At least thirty states enacted new death penalty statutes in response to Furman 's concern for unguided discretion. One group of states interpreted Furman to require the removal of all discretion in the capital sentencing context. These states passed laws that mandated the death penalty for certain statutorily defined crimes. The other group of states opted to provide guided discretion in the sentencing process by listing certain statutorily defined aggravating and mitigating circumstances. These latter states undertook to confine the sentencing body's discretion within the statutory factors.

The Supreme Court reviewed these two distinct types of statutes during the same term in 1976 and struck down mandatory death penalty statutes,41 but upheld statutes that provided for discretion.42 Limited discretion, according to the Court, was both consistent with, and necessary to, the constitutional requirement of an individualized evaluation of the death penalty's appropriateness. So began the arc back toward discretion. The Furman Court announced a retreat from discretion in capital sentencing; in Woodson, Roberts, Gregg, Proffitt and Jurek, that retreat arched backward toward a constitutional appreciation of discretion.

In Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), the Court did not merely tolerate discretion, but mandated it! Death penalty statutes following Furman had apparently confined the exercise of discretion "at both ends." These statutes generally required the sentencing authority to consider certain statutorily specified aggravating circumstances and statutorily specified mitigating circumstances found to accompany the murder. The trial court in Lockett had apparently concluded that to allow consideration of claimed mitigating circumstances not in the statute would authorize the type of unbridled discretion condemned in Furman. The Supreme Court held, however, that the Constitution requires states to afford the sentencing authority the discretion to consider any circumstances claimed to be mitigating, whether encompassed in the statute or not. Thus, the Court constitutionally imposed unbridled discretion in the grant of mercy. It appeared, however, that the Court may have left the consideration of aggravating circumstances to those prescribed in the various state statutes.

The Court then "dropped the other shoe." In Barclay v. Florida, 463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983) and Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), the Court revealed its appreciation of the fact that a defendant is guilty of a murder for which the death penalty could be imposed where it is found that the murder was accompanied by one or more of the statutory aggravating circumstances. Thus, the capital crime is not murder; it may be called aggravated murder or capital murder. Once convicted of such a crime, not only can unlimited mitigating circumstances as per Lockett be shown, but the state can prove facts in aggravation of the capital crime, whether listed as statutory aggravating circumstances or not.

4. The Death Penalty Today: "Aggravated Murder"

Prior to Furman, the sentencing authority in a murder case had unfettered discretion to consider virtually anything asserted in mitigation. Lockett re-established that practice. Prior to Furman, the sentencer in a capital case could consider anything, in its unfettered discretion, in aggravation. Barclay and Zant have re-established this practice so long as at least one statutory aggravating circumstance accompanies the murder. In practical terms, the Court has reinvigorated discretion in capital sentencing in order to guarantee an individualized sentencing process.

Engineers and surveyors use the phrase "failure to close" to express the idea that one has measured from a known reference point to certain unknown points without returning to the original reference point. This expression aptly describes the historical progression of death penalty jurisprudence. Shortly after Lockett, we noted the "inherent tension" between the Court's aspiration for "individualized sentencing and objective standards." Moore v. Balkcom, 716 F.2d 1511, 1521 (11th Cir.1983). Justice Scalia has recently denounced this tension as internally contradictory. Walton v. Arizona, --- U.S. ----, ----, 110 S. Ct. 3047, 3051-52, 111 L. Ed. 2d 511 (1990) (Scalia, J., concurring in part).43

The Court seems to have resolved the tension by making one full turn on a "coil spring" or a "spiral staircase" of case law. The Court has returned the law largely to its pre-Furman state but has ratcheted the doctrine up one step from its starting point. Prior to Furman, "simple murder" was a capital crime. Today the level of criminal conduct for a capital crime has been raised; a defendant must commit the new crime of "capital murder" or "aggravated murder" in order to be eligible for the death penalty. This new crime is defined as "murder accompanied by one or more of the statutory aggravating circumstances." The sentencing authority may not impose the death penalty for "simple murder." The essential point of this development in the law, at least with regard to Johnson's claim of actual innocence, is that when the prosecution has proved that the defendant committed aggravated murder, the sentencing authority has very broad discretion to sentence the defendant either to life imprisonment or the death penalty.

Because Johnson's proposed showing of factual error does not cast doubt on his guilt of a crime for which the sentencing authority in his case could impose the death penalty (i.e., "murder accompanied by at least one statutory aggravating circumstance"), he has not made a colorable showing of actual innocence. Therefore, Johnson is not entitled to a review on the merits of his defaulted constitutional claim.

5. The "Eligibility" Test for Actual Innocence

The Supreme Court has not told us what it means to be actually innocent of the death penalty. In Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986), a majority of the Court held that "where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."44 This statement expresses a fundamental tenet of our administration of criminal law: "an innocent person ... in custody or in jeopardy of the execution of a death sentence [must have unlimited opportunities] to repair to a court of justice for relief." Gunn v. Newsome, 881 F.2d 949, 966 (11th Cir.) (Hill, J., dissenting), cert. denied, --- U.S. ----, 110 S. Ct. 542, 107 L. Ed. 2d 540 (1989).

In Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2666, 91 L. Ed. 2d 434 (1986), the Court acknowledged the difficulties in translating the concept of "innocence" from the guilt phase of a capital trial to the sentencing context. The Smith Court also reiterated that, even in the sentencing context, courts must continue to distinguish between actual, as distinct from legal, innocence. Smith, 477 U.S. at 537, 106 S.Ct. at 2666. A more recent majority of the Court expressly reaffirmed that the actual innocence test limits a federal habeas court's authority to reach the merits of defaulted claims for which a petitioner cannot demonstrate cause. Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S. Ct. 1211, 1217-18 n. 6, 103 L. Ed. 2d 435 (1989).

In both Smith and Adams, as in the present case, the Court considered allegations that constitutional errors led to factual inaccuracies in the sentencing process. In Smith the Court considered the importance under the actual innocence standard of certain highly prejudicial statements made by the defendant to his court-appointed psychiatrist. The trial court admitted these statements at Smith's sentencing in violation of Smith's Fifth and Sixth Amendment rights. Like Johnson, Smith had defaulted on these claims. The Court found that the alleged error did not concern a factual inaccuracy in the sentencing process since the inadmissible evidence was both probative and reliable.

The panel majority attempted to distinguish Smith by noting that Johnson's allegations of error do in fact involve claims of factual inaccuracies. Johnson v. Dugger, 911 F.2d at 467-68.45 The panel majority ignored the "critical role" that the alleged constitutional error in Smith "played ... in the determination that death [was] an appropriate penalty"; that error, in fact, "made the difference between life and death in the jury's consideration of [Smith's] fate." Id. 477 U.S. at 539, 106 S. Ct. at 2669 (Stevens, J., dissenting). The Court assumed that Smith was "legally innocent"--that if the trial court had properly suppressed his statements the sentencing body probably would have imposed life imprisonment rather that the death penalty. The Court nevertheless held that the claim was "unrelated to [actual] innocence." Id. at 539, 106 S.Ct. at 2668. The sentencing body in Smith would have remained free, even if the trial court had excluded Smith's statements, to impose the death penalty; thus Smith's claim of error did not implicate his actual innocence of the death penalty.

In other words, although factual inaccuracy in the guilt or sentencing context may well be necessary to a claim of actual innocence, factual inaccuracy is not sufficient unless the inaccuracy demonstrates, at least colorably, that the petitioner is actually innocent, or ineligible for, either an adjudication of guilt or the sentence imposed. If prejudicial factual inaccuracy alone is enough to warrant review of a defaulted claim, then the actual innocence standard is meaningless.

Dugger v. Adams also illustrates this point. In that case, the Court rejected the petitioner's claim that an alleged Caldwell error established a colorable showing of actual innocence. See Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). The petitioner asserted that the trial judge violated the Eighth Amendment when he mistakenly advised the jury that its sentencing recommendation was merely advisory. The statements purportedly misled the jury regarding its role in the capital sentencing process under Florida law. The Adams majority acquiesced in the view (expressed in Justice Blackmun's dissent) that the alleged Caldwell error did not concern merely "the [erroneous] inclusion or exclusion of particular evidence"; the error was "global in scope" and pervasive in its tendency to influence the jury's recommendation. Adams, 489 U.S. at 423, 109 S.Ct. at 1224 (Blackmun, J., dissenting). Rather than refute the dissent's characterization of the facts, the majority instead expressly rejected the idea that "a fundamental miscarriage of justice results whenever 'there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.' " Id. at 410 n. 6, 109 S. Ct. at 1217-18 n. 6 (quoting Blackmun, J., dissenting, id. at 415, 109 S.Ct. at 1219 n. 4). Because, as in the case at hand, the sentencing body was free to impose the death penalty despite the alleged error--regardless of whether it would have done so in the absence of the error--the claim did not implicate Adams's actual innocence of the death penalty.

As we have previously noted, the Supreme Court has not expressly defined actual innocence in the context of the death sentence. Id. at 410 n. 6, 109 S. Ct. at 1217-18 n. 6. In the guilt phase of a trial, a defendant is innocent of the crime if, under the alleged facts, he or she is not eligible for an adjudication of guilt. "Actual eligibility" and "legal eligibility" are distinct; a defendant is innocent of a crime only if he is ineligible for an adjudication of guilt--either by virtue of a (correct or incorrect) finding of innocence, or through objective facts that prove that a guilty verdict was wrong because the defendant did not commit each and every element of the crime charged.

A properly convicted defendant's claim to innocence in the sentencing context is likewise tied to eligibility. A convicted defendant is eligible for any punishment within the discretion the legislature accords the sentencing body. One cannot say that the defendant is innocent of the sentence imposed if the defendant actually committed the necessary acts that would make him eligible for the particular punishment chosen. Even if the guilty defendant can demonstrate that a constitutional error led to a factual inaccuracy--which in turn prejudiced the outcome of the sentencing body's deliberative process--the defendant is not innocent of the sentence imposed.

The somewhat narrower scope of innocence in the sentencing phase of a trial, as compared to the guilt phase, results from the unique role that discretion plays in sentencing. The discretionary nature of sentencing necessarily reduces the objective criteria by which a court may determine that a particular sentence is wrong or unauthorized. Only under very limited circumstances is a court competent to determine that a defendant is ineligible for a particular sentence despite the sentencing body's decision to the contrary. In the guilt phase of a trial, innocence and guilt have an objective existence that a court may under certain circumstances discern--either at trial or in a collateral proceeding. The petitioner may assert new facts (or improperly excluded facts) with regard to guilt, and a court may determine that, given those facts, a finding of guilt was unauthorized.

At sentencing, by contrast, there are few "elements" necessary for a particular sentence. A showing that an erroneous factual premise probably influenced the sentencing body does not necessarily mean that the defendant is innocent or ineligible for the sentence imposed. Only under very limited circumstances may a court determine that a factual showing demonstrates the defendant's ineligibility for the sentence imposed in light of purportedly inaccurate or incomplete facts. The sentenced defendant must demonstrate not merely that the error affected the sentencing outcome, but that the error resulted in a sentencing outcome for which the defendant is not eligible by virtue of his conduct.

In the capital sentencing context, the defendant becomes eligible for the death sentence only if the sentencing body correctly finds that he has committed a crime for which the sentencing body could, in its discretion, sentence him to death. Thus, a petitioner may make a colorable showing that he is actually innocent of the death penalty by presenting evidence that an alleged constitutional error implicates all of the aggravating factors found to be present by the sentencing body. That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner was ineligible for the death penalty. In other words, the petitioner must show that absent the alleged constitutional error, the jury would have lacked the discretion to impose the death penalty; that is, that he is ineligible for the death penalty.46

6. The Panel Majority's "Actual Prejudice" Test

The panel majority attempted to articulate a test to determine whether a constitutional error has skewed a "sentencing body's deliberative process ... to such a degree that its ultimate conclusions are probably factually in error." Johnson v. Dugger, 911 F.2d at 468 (emphasis omitted). Asking the wrong question necessarily begets the wrong answer. When a defendant is eligible for the death penalty (by virtue of having committed first-degree murder accompanied by at least one statutory aggravating circumstance), it is nearly impossible to determine that the sentencing body's ultimate conclusion that imprisonment is more appropriate than the death penalty (or vice versa ) is "correct" or "accurate," or "incorrect" or "inaccurate."

The nature of the question asked by the panel majority illustrates its misinterpretation of the "actual" or "factual" innocence standard. Although factual errors can undermine the factual premises from which the sentencing body reaches its ultimate conclusion, one can never say that the ultimately discretionary choice by the sentencing body is "factually in error." Other than in the context of a general proportionality review, a court lacks objective criteria by which to divine that it is "factually incorrect" to sentence a particular death-eligible defendant to death, or to life imprisonment instead. So long as the jury could have imposed the death penalty, there can be no "correct" or "incorrect" sentencing outcome.

It is, however, possible to determine that a constitutional error led to a factual error, and that the factual error probably influenced the sentencing body to select the death penalty. In fact, courts often define "prejudicial error" in just this fashion. It is within Congress' power to enable federal courts to review these errors in habeas proceedings, regardless of a litigant's procedural default or of an abuse of the writ. The Supreme Court has interpreted habeas jurisdictional statutes to require, in such defaulted or abusive cases, more than prejudicial error. The Court reached this conclusion in light of certain expressions of congressional intent and a serious concern for comity and finality.

The panel majority attempted to distinguish its test from the ordinary test for prejudice. The majority was correct that the Supreme Court has admonished courts to apply the test for "actual innocence" in light of all probative evidence, including evidence that was admitted (or excluded) as a result of constitutional error. See Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17, 106 S. Ct. 2616, 2627 n. 17, 91 L. Ed. 2d 364 (1986) (citing Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)); Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668. We recognize that the panel majority applied its test in light of all probative evidence. Our concern is that the panel majority's test seeks to answer the wrong question. The panel majority's test asks whether, but for a factual misimpression with regard to aggravation or mitigation, the sentencing body probably would have exercised its discretion in a different manner. The Supreme Court has made clear that the question is whether, in light of all probative evidence, including evidence that was or was not admitted as a result of the alleged constitutional error, the petitioner has made a colorable showing that he has suffered a conviction or received a punishment that the adjudicator of guilt or the sentencing body was not free to impose under the actual facts.

In answering what is a wrong and an unanswerable question, the panel majority propose a test that equates "correctness" or "accuracy" of sentence with a deliberative process free from factual errors that affect the exercise of discretion. According to the panel majority, if the petitioner makes a colorable showing of the following, he is entitled to a hearing on the merits of his claim--regardless of an unexcused procedural default or an abuse of the writ:

(1) the sentencing body was under a misperception as to the factual background of either the offender or the offense, and

(2) but for those factual misperceptions held by the sentencing body, the petitioner probably would not have received a sentence of death.

Johnson v. Dugger, 911 F.2d at 468-69.

The panel majority's test has only a slight bearing on the petitioner's "innocence" of the sentence imposed. It instead looks to the purity of the deliberative process and grants relief for errors that probably affected the outcome. The panel majority held that a petitioner is "guilty" of the death penalty only if the process by which he received that sentence is absolutely free from any omissions or presentations of fact that probably influenced the sentencing body's exercise of discretion. Conversely, a petitioner is actually innocent of the death penalty, according to the panel majority, if any "factual" error with regard to aggravation or mitigation probably influenced the deliberative process. In short, the panel majority sets forth a roughly accurate description of the standard for evaluating the significance of a timely raised allegation of constitutional error in connection with the sentencing process.47

Aside from being wrong, the panel majority's test is an undesirable one for several reasons. The test is fundamentally offensive to both comity and finality. It requires a federal court to review the merits of a claim whenever an alleged constitutional error probably influenced the sentencing body to impose the death penalty even though a claim is procedurally defaulted, constitutes an abuse of the writ, or is barred under both doctrines. Thus, the panel majority's test abolishes the distinction between a petitioner's first federal habeas petition and all subsequent such petitions. It matters not, under the panel majority's test, that a petitioner is filing his second, third, fourth, or even tenth federal habeas petition. If he can make out a colorable claim of "actual prejudice," he is entitled to have the merits of his claim reviewed. Were this Johnson's first federal habeas petition, he would have to allege and prove both that the performance of his counsel at sentencing was deficient, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). Under the panel majority's test, Johnson need prove no more even though his claim is procedurally defaulted or abusive or both.

The test creates the necessity of holding an evidentiary hearing for the first time in federal court on a claim the petitioner should have presented to a state court long ago. Were we to remand this case, as the panel majority held we should, a federal district court would hear evidence a state court never had the opportunity to hear and evaluate. The panel majority's assertion that its test is reserved for extraordinary cases is of little comfort. This case demonstrates that the panel majority's test "turn[s] the case in which an error results in a fundamental miscarriage of justice, the 'extraordinary case,' ... into an all too ordinary one." Adams, 489 U.S. at 410 n. 6, 109 S. Ct. at 1217-18 n. 6. Johnson's claim is a common one. He claims that his counsel did a poor job--they could have done better, and if they had, he probably would not have received the death penalty. We are faced with similar claims in many capital cases. Thus, the panel majority's test would require evidentiary hearings in many not-so-extraordinary cases.

Lastly, the panel majority's test encourages and rewards "sandbagging." Johnson's habeas counsel admitted they filed first in federal court because they believed they could always go back to state court later. In part, the procedural default doctrine is designed to prevent such practices. Wainwright v. Sykes, 433 U.S. 72, 89, 97 S. Ct. 2497, 2508, 53 L. Ed. 2d 594 (1977). The panel majority's test allows petitioners to circumvent the procedural default doctrine and the policy against intentionally withholding claims all too easily.

7. Is Johnson Actually Innocent of the Death Penalty?

The excluded evidence does not implicate any of the four aggravating factors found by the trial judge and upheld by the Supreme Court of Florida. Johnson, therefore, was convicted of murder accompanied by at least one aggravating factor. Further, the introduction of the now proffered evidence would not have deprived the sentencing judge of the discretion to impose the death penalty. The panel majority uncritically accepted Johnson's claim that the proffered evidence, if true, would have been considered a mitigating factor by the advisory jury and trial judge. We disagree. There is a very real possibility that both the jury and the judge might not have accepted the drug compulsion theory as a mitigating factor, but instead would have considered Johnson's propensity toward violent crime--whether or not the product of a drug addiction--as a nonstatutory aggravating circumstance. Even if the evidence would have established the existence of statutory mitigating circumstances, however, we nevertheless conclude that Johnson has not satisfied the actually innocent exception to the procedural default doctrine. In other words, Johnson has not shown that the trial judge was not free to sentence Johnson to death. We hold that Johnson has not made a colorable showing that he is actually innocent of the death penalty and we should not, therefore, exercise our discretion to review the merits of his ineffective assistance of counsel at sentencing claim.

Because we conclude that Johnson's ineffective assistance of counsel at sentencing claim is procedurally barred, we need not decide whether the claim is also an abuse of the writ.

The district court rejected on the merits both Johnson's Hitchcock claim and his claim that appellate counsel was ineffective. We find no error in those determinations. The district court concluded that Johnson's jury override claim was an abuse of the writ. We agree with the panel majority's conclusion that the claim is successive and that no exception to the abuse of the writ doctrine requires us to address the merits of that claim. Finally, the district court determined that Johnson's ineffective assistance of trial counsel claim is procedurally barred. Again, we agree with the panel majority that the claim is procedurally defaulted and that no exception to the procedural default doctrine requires us to reach the merits of that claim.

The judgment of the district court denying Johnson's petition for a writ of habeas corpus is AFFIRMED.

TJOFLAT, Chief Judge, concurring in part, dissenting in part:

We took this case en banc to decide whether a fundamental miscarriage of justice will occur1 if we enforce the abuse of the writ and state procedural default doctrines and refuse to entertain the petitioner's claim that his counsel rendered ineffective assistance at his sentencing hearing.2 The court now holds that to demonstrate a fundamental miscarriage of justice, the petitioner "must show that absent the alleged constitutional error, the jury would have lacked the discretion to impose the death penalty; that is, he is ineligible for the death penalty." Ante at 1183. Applying this test, the court concludes that no fundamental miscarriage of justice will occur if we refuse to entertain the petitioner's claim because he failed to show that, but for the ineffectiveness of his counsel, the jury would have found no statutory aggravating circumstance to support his death sentence. In my opinion, the court correctly posits an "eligibility" test for a federal habeas court to use in judging when a fundamental miscarriage of justice will occur by its refusal to entertain a claim. By concentrating solely on the existence of statutory aggravating circumstances, however, the court limits this test in a manner that is unfaithful to Supreme Court precedent. As I explain below, I conclude that the petitioner has demonstrated that our failure to entertain his claim will result in a fundamental miscarriage of justice--absent the alleged constitutional error, the trial judge, as a matter of law, could not have sentenced the petitioner to death.

On December 8, 1978, a jury convicted the petitioner of first-degree murder and robbery. The next day, following a hearing, the same jury recommended that the petitioner be sentenced to life imprisonment. One month later, the trial judge, following a sentencing hearing at which the State and the petitioner had the opportunity to present aggravating or mitigating evidence, overrode the jury's recommendation of life imprisonment and sentenced the petitioner to death. On appeal, the Florida Supreme Court unanimously affirmed the petitioner's convictions and, by a vote of four to three, affirmed his death sentence. See Johnson v. State, 393 So. 2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S. Ct. 364, 70 L. Ed. 2d 191 (1981).

On May 12, 1982, the petitioner filed his first petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. The district court denied this petition, and we affirmed. See Johnson v. Wainwright, 806 F.2d 1479 (11th Cir.1986), cert. denied, 484 U.S. 872, 108 S. Ct. 205, 98 L. Ed. 2d 157 (1987). On March 10, 1989, the petitioner filed his second federal habeas corpus petition, the one at issue here; in this petition he claimed, for the first time in federal court, that his counsel had rendered ineffective assistance by failing to investigate fully his mental health and present to the sentencing judge the mitigating evidence this investigation would have disclosed.

The State, in response, argued, in part, that this ineffective assistance of counsel claim constituted an abuse of the writ; alternatively, the State contended that the petitioner had procedurally defaulted this claim in state court and, hence, could not raise it on federal habeas corpus.3 The district court dismissed the petitioner's second petition; with regard to the ineffective assistance of counsel claim, the court held that "even assuming that this claim is not subject to Rule 9(b) [abuse of the writ] dismissal, it is procedurally defaulted through the petitioner's failure to raise it in a [Fla.R.Crim.P.] 3.850 motion in a timely fashion."

This case, then, first and foremost, involves an abuse of the writ: the petitioner raised a claim for the first time in a second federal habeas petition.4 In such cases, federal courts generally should dismiss the claim without addressing its merits. See 28 U.S.C. Sec. 2244(b) (1988); id. Sec. 2254 Rule 9(b); see also McCleskey v. Zant, --- U.S. ----, ----, 111 S. Ct. 1454, 1461-71, 113 L. Ed. 2d 517 (1991) (explaining history of abuse of the writ doctrine). When, however, a petitioner can demonstrate "cause" for his abuse of the writ and prejudice resulting from it, a federal court may excuse the abuse and reach the merits of the claim. See McCleskey, --- U.S. at ----, 111 S. Ct. at 1468. Furthermore, even if the petitioner cannot satisfy this cause-and-prejudice standard, a federal court, in an extraordinary case, may excuse the abuse of the writ if failure to consider the claim will result in a "fundamental miscarriage of justice." Id. at ----, 111 S.Ct. at 1468. We, thus, must analyze this case to determine whether the petitioner's abuse of the writ is excusable.

It is clear that the petitioner is unable to demonstrate cause to excuse his abuse of the writ. The Supreme Court reiterated in McCleskey, --- U.S. at ----, 111 S. Ct. at 1470-74, that the "[a]buse of the writ [doctrine] examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." The petitioner, in an affidavit submitted along with his second federal habeas petition, revealed the following:

Mr. Parnham and Mr. Hammons [his first post-conviction counsel in both the state and federal courts] visited me at the prison at various times. I didn't know a lot about the legal proceedings but I asked them to file everything they possibly could in my case. I ... told them about Dr. Yarbrough [the psychiatrist who examined him] seeing me late at night before my sentencing hearing. I told my lawyers to file a motion for me objecting to what my trial and sentencing lawyers did not do for me. I asked them to raise ineffective assistance of counsel issues in the proper motion.

Thus, the petitioner was aware of the claim at issue when he filed his first federal habeas petition. There is, then, no justification for his failure to bring this claim in that petition.5

The petitioner's failure to demonstrate cause to excuse his abuse of the writ, however, does not end our inquiry. We must determine whether our failure to hear this abusive claim will result in a fundamental miscarriage of justice. As I explain below, in subpart 1, this requires us to determine whether the petitioner, absent the alleged constitutional error, would have been eligible, as a matter of federal or state law, for the death sentence he received. After developing the proper standard to evaluate this issue, I conclude, in subpart 2, that our failure to entertain the petitioner's claim will result in a fundamental miscarriage of justice--but for his sentencing counsel's ineffectiveness, the trial judge would have been obligated, as a matter of law, to accept the jury's recommendation of life imprisonment.

As I state above, federal courts will usually excuse an abuse of the writ only if the petitioner can demonstrate cause for the abuse and prejudice resulting from it. In some cases, however, "victims of a fundamental miscarriage of justice" might not be able to "meet the cause-and-prejudice standard." Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986). In those cases, a federal court may excuse the abuse of the writ despite the petitioner's failure to demonstrate cause for his abuse. McCleskey, --- U.S. at ----, 111 S. Ct. at 1468-71. The Supreme Court enunciated the following principle to aid federal courts in recognizing these exceptional cases: "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause." Carrier, 477 U.S. at 496, 106 S.Ct. at 2649; see also McCleskey, --- U.S. ----, 111 S. Ct. at 1468-71. The Court has made clear that this principle also applies to claims of alleged constitutional error in sentencing. Smith v. Murray, 477 U.S. 527, 537-39, 106 S. Ct. 2661, 2668-69, 91 L. Ed. 2d 434 (1986).

Federal courts, then, may apply the fundamental miscarriage of justice exception only when the petitioner augments his constitutional claim with a showing of actual innocence. Actual innocence is not, on its face, a completely clear concept, even in the guilt/innocence context. The best guidance to its meaning comes from the plurality opinion in Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S. Ct. 2616, 2627, 91 L. Ed. 2d 364 (1986). In Kuhlmann, a plurality of the Court enunciated a standard for federal courts to use in deciding whether the "ends of justice" require them to exercise their discretion to excuse an abuse of the writ. The plurality stated that when a prisoner makes a "colorable showing of factual innocence," a federal court should excuse an abuse of the writ. Id.6 The plurality explained that a prisoner, to demonstrate factual innocence, must show that the trier of fact, based on all of the reliable evidence, regardless of its admissibility or availability at trial, "would have entertained a reasonable doubt of his guilt." Id. at 454 n. 17, 106 S. Ct. at 2627 n. 17 (emphasis added) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)).7

It is thus clear that a prisoner, to show his actual (or factual) innocence of a crime, is not required affirmatively to disprove an element of the crime for which he was convicted. Instead, he must demonstrate, to a high degree of probability,8 that the jury (or, in a bench trial, the court), had it had all the reliable evidence before it, would have entertained reasonable doubt about his guilt as to some element of the crime for which he was convicted; that the jury might have entertained reasonable doubt is insufficient. Furthermore, unlike in a mere prejudice inquiry, federal courts, in determining whether the prisoner is actually innocent, must consider all reliable evidence, regardless of its admissibility or availability at trial; a prisoner cannot demonstrate his actual innocence "by showing that he might not, or even would not, have been convicted in the absence of the evidence claimed to have been unconstitutionally obtained." Id.9

I submit that the only reliable way for a federal habeas court to judge, to a high degree of probability, see supra note 8, whether the jury would have entertained reasonable doubt is for the court to decide whether the jury, as a matter of law, could have done anything but entertain reasonable doubt. While a federal court is able to determine whether a jury, after considering all of the reliable evidence, could have convicted the prisoner (i.e., the prisoner was eligible for a conviction), the court cannot conclude, with any reliability, whether the jury would have found the defendant innocent or guilty. If a defendant is eligible for conviction, a jury has discretion to convict him or not; federal courts simply are unable to read jurors' minds and divine what they probably would have done in a particular situation.10 Therefore, a federal habeas court, in determining whether a prisoner is actually innocent of a crime, must decide, based on all of the reliable evidence, regardless of its admissibility, whether, as a matter of law, the petitioner's conviction could stand. If so, then the federal habeas court cannot conclude that the prisoner is actually innocent of the crime for which he was convicted; if not, then the prisoner is actually innocent of the crime.

This general standard applies with equal force to claims of error in sentencing. Once a defendant is eligible for a sentence, the sentencer is generally afforded broad discretion in choosing the appropriate sanction; indeed, as the court explains, the sentencer in capital cases must have broad discretion in choosing between life and death. Thus, when a prisoner alleges that a constitutional error resulted in his death sentence and asks a federal court to excuse his abuse of the writ, he must supplement the claim with a showing that he is ineligible for the sentence he received; that is, the prisoner must show, in addition to a constitutional violation, that, in light of all the reliable evidence, his death sentence cannot stand as a matter of law. It is not enough for a prisoner to claim that some error may have affected the sentencer's deliberations or that the sentencer likely would have decided the issue differently had it been exposed to all of the reliable evidence; neither a habeas corpus petitioner nor a federal habeas court is able to make such a determination with any reliability, as required by the Supreme Court.

The standard I suggest for determining actual innocence is, as I state, essentially an "eligibility" test. I differ from the court, however, in that I view eligibility as more than simply a question of federal law. The court, in defining eligibility for the death penalty, only focuses on requirements the United States Constitution imposes on the states in fashioning death penalty schemes; it ignores state-law limits on death sentences. In my view, a federal court, in judging whether a fundamental miscarriage of justice will occur by its refusal to entertain an abusive claim on habeas corpus, must look to eligibility as defined both by federal and state law. Thus, a prisoner may demonstrate his actual innocence by bringing forth reliable facts, which, due to an alleged constitutional violation, were not considered at trial or at a sentencing hearing, that show he is, under the United States Constitution, ineligible for the conviction or sentence he received. Or, the prisoner may introduce reliable facts, previously undisclosed because of constitutional error, that demonstrate, as a matter of state law, his ineligibility for the conviction or sentence he received; for example, where the trial court, after examining this newly produced evidence, would be obligated to set aside a jury's sentencing decision.11 A prisoner, however, cannot satisfy this test by showing that absent the illegally obtained, but reliable, evidence, which the state placed in the record, he could not have been found guilty or sentenced to death; nor is this test satisfied by the introduction of new evidence that merely buttresses the prisoner's position.

Judge Anderson, in dissent, argues that an eligibility test is inconsistent with Supreme Court precedent, specifically Smith, 477 U.S. at 527, 106 S.Ct. at 2661, and Dugger v. Adams, 489 U.S. 401, 109 S. Ct. 1211, 103 L. Ed. 2d 435 (1989). The Court has not adopted one clear test to use in deciding whether a petitioner is actually innocent. Careful analysis, however, reveals that the Court, in determining whether the petitioners in these cases were actually innocent, relied on the standard I set forth--whether, examining all reliable evidence, the prisoner, as a matter of federal or state law, was eligible for the conviction or sentence he received.

Generally, claims on habeas corpus fall into two broad categories: (1) those that allege constitutional error that infected the deliberative process as a whole and (2) those that allege constitutional error that affected the determination of a particular material fact. In Adams, 489 U.S. at 401, 109 S.Ct. at 1211, the petitioner presented a procedurally barred "category-one" claim; the petitioner alleged that the trial judge had misinformed the jury as to its responsibility concerning the death sentence, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). The "essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined." Adams, 489 U.S. at 423, 109 S.Ct. at 1224 (Blackmun, J., dissenting). Such a claim, however, even if accepted, does not necessarily undermine the accuracy the jury's material findings; rather, this claim rests on the possibility that the jury, had the trial judge properly instructed it as to its role in the sentencing process, would have sentenced the defendant differently. See Caldwell, 472 U.S. at 340, 105 S.Ct. at 2645 ("Such comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment."). In rejecting the petitioner's claim of actual innocence, the Court held that "[d]emonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is 'actually innocent' of the sentence he or she received." Adams, 489 U.S. at 417 n. 6, 109 S. Ct. at 1217-18 n. 6.

In Smith, 477 U.S. at 527, 106 S.Ct. at 2661, the petitioner brought a procedurally barred "category-two" claim; the petitioner alleged that the trial court erroneously allowed a psychiatrist, appointed to assist the petitioner's defense, to testify in the sentencing phase of his murder trial about incriminating statements the petitioner made during his psychiatric interview, in violation of his fifth amendment right against self-incrimination. The psychiatrist's testimony, which divulged "prior incidents of deviant sexual conduct" by the petitioner, id. at 530, 106 S.Ct. at 2664, established that the petitioner constituted a continuing threat to society, one of two statutory aggravating circumstances under Virginia's death penalty scheme. The petitioner claimed that the jury would not have found, absent the unconstitutional admission of the incriminating statements, this aggravating circumstance and that, absent this aggravating circumstance, he would not have received a death sentence. The Court, after concluding that there was no cause to excuse the procedural default,12 analyzed whether the petitioner was actually innocent of the death sentence he had received.

The jury, in sentencing the petitioner to death, had found that both statutory aggravating circumstances provided for under state law--(1) continuing threat to society and (2) outrageously or wantonly vile conduct in committing the offense--existed. The Virginia Supreme Court, assuming the existence of both statutory aggravating circumstances, affirmed the petitioner's death sentence on direct review; it did not consider whether the jury had properly found these circumstances to exist and did not indicate that it would have affirmed the petitioner's death sentence in the absence of one of these statutory aggravating circumstances. See Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978). Thus, the United States Supreme Court assumed that the challenged testimony by the psychiatrist, which established one of the statutory aggravating circumstances, "made the difference between life and death in the jury's consideration of his fate," Smith, 477 U.S. at 539, 106 S. Ct. at 2669 (Stevens, J., dissenting);13 in other words, the Court assumed that state law required, for that case, both statutory aggravating circumstances to support the death sentence.14 Thus, in determining whether the petitioner was actually innocent of the death sentence he had received, the Court examined whether the alleged constitutional error had undermined the accuracy of the jury's finding of a necessary statutory aggravating circumstance; the Court inquired, in light of all reliable evidence, "whether in fact petitioner constituted a continuing threat to society." Id. at 538, 106 S. Ct. at 2668.15

The Court, in conducting this inquiry, noted that the petitioner did not allege that the psychiatrist's testimony was "false or misleading in any way"--though he contended that it had been erroneously presented to the jury. Id. Nor did the alleged constitutional violation preclude the admission of other reliable facts that would have demonstrated the inaccuracy of the jury's factual finding that the petitioner constituted a continuing threat to society. Therefore, the petitioner did not prove he was actually innocent of the death sentence; he failed to demonstrate that his death sentence could not stand as a matter of law.

These cases thus support the eligibility test I set forth. Smith makes clear that a petitioner can demonstrate his actual innocence only if he shows that, under either federal or state law, his conviction or sentence cannot stand; it is not enough to suggest that the outcome would have been different absent the constitutional violation, see supra note 8. To satisfy this burden, a petitioner usually must bring a "category-two" claim, alleging that a constitutional error either "precluded the development of true facts [ ]or resulted in the admission of false ones," id. at 538, 106 S. Ct. at 2668, with respect to a material issue; then he must demonstrate, in light of all the reliable evidence, that the jury's or trial court's finding as to the ultimate material fact was inaccurate. By doing this, the petitioner would demonstrate that, as a matter of law, his conviction or sentence could not be sustained because a necessary element could not be established. It is, however, as Adams explains, unlikely that a petitioner will be able to demonstrate his actual innocence if he brings only a "category-one" claim, alleging that a constitutional violation corrupted the deliberative process as a whole. Such a claim does not demonstrate his ineligibility for the conviction or sentence he received because the claim does not necessarily undermine the accuracy of any finding that is required, under federal or state law, to sustain his conviction or sentence. Such claims are premised on the notion that, absent the alleged error, the judge or jury might have viewed things differently.16 While this may be true, and may suffice to demonstrate prejudice, it is insufficient to demonstrate actual innocence.

Applying the standard I set forth, it is clear that a fundamental miscarriage of justice will occur if we refuse to entertain the petitioner's abusive claim. As the petition before us alleges, the sentencing judge, because of the ineffectiveness of petitioner's counsel, was not presented with evidence that would have established the existence of three statutory mitigating circumstances. As I explain below, under Florida's death penalty scheme, the judge, if presented with this additional evidence, would not have been able to override the jury's life recommendation and sentence the petitioner to death; in other words, taking into account all the reliable evidence defense counsel should have presented at sentencing, the judge, as a matter of law, could not have sentenced the petitioner to death.

Under Florida law, the jury, based on the evidence presented to it during the sentencing phase of a trial, renders an advisory sentence to the court, recommending life imprisonment or death. Fla.Stat. Sec. 921.141(2) (Supp.1990). This recommendation is based on the jury's evaluation of the statutory aggravating circumstances and the mitigating circumstances presented by the state and the defendant. Id. The court then reviews the jury's recommendation, reweighing the aggravating and mitigating circumstances, id. Sec. 921.141(3); in so doing, the sentencing judge may consider evidence not presented to the jury, see, e.g., Cochran v. State, 547 So. 2d 928, 931 (Fla.1989) ("Under our law, it was proper for the trial court to take into consideration appellant's previous conviction ..., even though that conviction was not presented to the jury."). The jury's recommendation, however, is entitled to great weight; indeed, if the jury recommends life imprisonment, its recommendation is presumed correct and the court can only overcome this presumption and impose a death sentence if "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (Fla.1975). The Florida Supreme Court has strictly enforced the Tedder standard, see Mann v. Dugger, 844 F.2d 1446, 1451 (11th Cir.1988) (en banc) ("That the court meant what it said in Tedder is amply demonstrated by the dozens of cases in which it has applied the Tedder standard to reverse a trial judge's attempt to override a jury recommendation of life."); the court has explained that the sentencing judge may not override the jury's life recommendation if there is any reasonable basis in fact to support it, Barfield v. State, 402 So. 2d 377, 382 (Fla.1981).17

In the present case, the jury recommended life imprisonment for the petitioner. One month later, the trial judge held a hearing to consider any evidence the parties wished to present and to hear their arguments as to the sentence that the court should impose. Defense counsel presented no additional evidence--for example, evidence that would have established the three statutory mitigating circumstances the petitioner alleges were available. Rather, he simply urged the court to accept the jury's recommendation. Counsel's "strategy" failed; the trial judge overrode the jury's recommendation of life imprisonment, finding "no mitigating circumstances ... to weigh against the aggravating circumstances," and sentenced the petitioner to death. I think it is clear that had the evidence the petitioner now proffers been introduced, the judge would have had to accept, as a matter of state law, the jury's recommendation of life imprisonment. The judge, faced with a record establishing at least three statutory mitigating circumstances, would have been unable to conclude that the jury's recommendation of life imprisonment was unreasonable.18 Furthermore, had the trial judge overridden the jury's recommendation, the Florida Supreme Court, in accordance with its precedent, would have vacated the judge's override and reimposed the jury's life recommendation. The record, supplemented with the reliable evidence of mitigating circumstances proffered by the petitioner, simply does not demonstrate that death is the only reasonable sentence and, thus, as a matter of Florida law, a trial judge could not override a jury's life recommendation.19

Because, absent the alleged constitutional violation, the trial judge, as a matter of law, could not properly have sentenced the petitioner to death, I conclude that our refusal to entertain the petitioner's abusive ineffective assistance of counsel claim will result in a fundamental miscarriage of justice. Coincidentally, this conclusion applies with equal force to the petitioner's request that we excuse his state procedural default, see supra note 3; therefore, it is unnecessary for us to examine whether he can demonstrate cause to excuse his state procedural default. Accordingly, I would excuse both the abuse of the writ and the state procedural default in this case and remand the case to the district court for an evidentiary hearing on petitioner's ineffective assistance of counsel claim. Because the court holds otherwise, I respectfully dissent.

ANDERSON, Circuit Judge, concurring in part, dissenting in part, in which KRAVITCH, JOHNSON and CLARK, Circuit Judges, join:

I concur in the court's resolution of all of the claims presented by Johnson, with one exception. With respect to Johnson's claim of ineffective assistance of counsel at sentencing, I dissent. Respectfully, I submit that the eligibility theory adopted today by the court is inconsistent with the guidance which the Supreme Court has given us on the meaning of the concept "actually innocent of the death penalty."

In Smith v. Murray, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986), the Supreme Court acknowledged that the concept of actual innocence does not translate easily into the context of an alleged error at the sentencing phase. In concluding that the claim of error there did not result in a fundamental miscarriage of justice, the Supreme Court made three comments which provide guidance with respect to the meaning of the concept. First, the Court said of the alleged error in Smith that it "neither precluded the development of true facts nor resulted in the admission of false ones." 477 U.S. at 538, 106 S. Ct. at 2668. Second, the Court assumed that as a legal matter the testimony about the prior school bus incident should not have been presented to the jury. Having assumed error in the admission of evidence, the Court nevertheless said that "its admission did not serve to pervert the jury's deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society." Id. at 538, 106 S. Ct. at 2668. Finally, the Supreme Court said: "We similarly reject the suggestion that there is anything 'fundamentally unfair' about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination." Id. at 538-39, 106 S.Ct. at 2668. In other words, in Smith the Supreme Court focused on the accuracy of the sentencing determination.

In Dugger v. Adams, 489 U.S. 401, 109 S. Ct. 1211, 103 L. Ed. 2d 435 (1989), the dissent read Smith v. Murray as establishing the following test: "A substantial claim that the constitutional violation undermined the accuracy of the sentencing decision." 489 U.S. at 415 n. 4, 109 S. Ct. at 1219 n. 4. The dissent went on to argue that the Caldwell1 claim at issue there was precisely the kind of claim that satisfies the test. The majority did not reject the test suggested by the dissent, but rather rejected the dissent's application of the test as overbroad.

The dissent "assumes arguendo" that a fundamental miscarriage of justice results whenever "there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision." Post, at 1219, n. 4. According to the dissent, since "the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined," Post, at 1223, the standard for showing a fundamental miscarriage of justice necessarily is satisfied. We reject this overbroad view. Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is "actually innocent" of the sentence he or she received.

489 U.S. at 417 n. 6, 109 S. Ct. at 1217-18 n. 6. In other words, the Supreme Court rejected the notion that the test is satisfied simply because the generic nature of a claim is such that "by its nature" it "might" affect the accuracy of the sentencing decision. The test is not that; rather, the test is whether the error did in fact undermine accuracy--i.e., whether the individual defendant can demonstrate that he is actually innocent of the sentence.

The most explicit elaboration of what the Supreme Court means by "actual innocence" is contained in the plurality opinion in Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). In the related context of a successive petition for federal habeas corpus, the plurality held that the analogous "ends of justice" test requires a federal court to entertain a successive habeas petition only where the petitioner makes a "colorable showing of factual innocence." 477 U.S. at 454, 106 S.Ct. at 2627. The plurality borrowed the standard from Judge Friendly's famous article2 in order to effectuate "the clear intent of Congress that successive federal habeas review should be granted only in rare cases, but that it should be available when the ends of justice so require." Id. The Supreme Court elaborated upon the meaning of the standard as follows:

As Judge Friendly explained, a prisoner does not make a colorable showing of innocence "by showing that he might not, or even would not, have been convicted in the absence of evidence claimed to have been unconstitutionally obtained." Friendly, supra, at 160. Rather, the prisoner must "show a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it), and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of facts would have entertained a reasonable doubt of his guilt." Ibid. (footnote omitted). Thus, the question whether a prisoner can make the requisite showing must be determined by reference to all probative evidence of guilt or innocence.

Id. at 454 n. 17, 106 S. Ct. at 2627 n. 17 (emphasis in original).

I submit that the Supreme Court has clearly indicated what it means by the term "actually innocent." The focus is on the accuracy of the sentencing determination. In the guilt phase, Kuhlmann states the test as whether "the trier of facts would have entertained a reasonable doubt of his guilt" based on the true facts. In the sentencing context, I submit that the Supreme Court contemplates a test which focuses on whether the trier of facts would have imposed a life sentence if the true facts had been presented.

The eligibility theory adopted today by this court is inconsistent with the foregoing Supreme Court precedent. First, everything the Supreme Court has said indicates that the proper analysis revolves around the accuracy of the sentencing determination. In Smith v. Murray, the Supreme Court inquired whether the alleged error "precluded the development of the true facts or resulted in the admission of false facts," whether the jury's deliberations were "perverted," and whether there was a "substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination." In Dugger v. Adams, the Supreme Court clarified that it was not the generic nature of the alleged error; there had to be more than a mere claim that the alleged error "by its nature" "might" affect accuracy; rather, there must be a showing that the alleged error did in fact cause an inaccurate result. And in Kuhlmann, the Supreme Court made it clear that the analysis focuses on what the trier of facts would have done on the basis of the true facts. The eligibility theory adopted by the court today ignores Supreme Court precedent. The eligibility theory does not focus on the overall accuracy of the sentencing determination. The only thing relevant to the eligibility theory is whether there is at least one aggravating circumstance to make the defendant eligible for the death penalty.

Second, the eligibility theory is inconsistent with the above quotation from Kuhlmann, which indicates that the proper analysis considers all probative evidence. The eligibility theory does not consider all of the probative circumstances; rather, it looks only to whether there was at least one untainted aggravating circumstance so that the defendant was eligible for the death penalty.

Third, I submit that the majority's eligibility theory is inconsistent with Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). Referring to the miscarriage of justice concept, the Court said:

However, as we noted in Engle, "in appropriate cases" the principles of comity and finality that inform the concepts of cause and prejudice "must yield to the imperative of correcting a fundamentally unjust incarceration." 456 U.S. at 135, 102 S.Ct. at 1576. We remain confident that, for the most part, "victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard." Ibid. But we do not pretend that this will always be true. Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.

477 U.S. at 495-96, 106 S. Ct. at 2649. The Supreme Court is talking about a last resort standard which is tied to the imperative of correcting a fundamental miscarriage of justice. To fulfill that role, common sense suggests, and indeed Kuhlmann expressly holds, that the appropriate standard would have to take into consideration all probative circumstances and would have to focus on what the result would have been based on the true facts. In contrast, the eligibility test ignores the totality of the circumstances and ignores the basic concept of a fundamental miscarriage of justice; instead, it focuses in a rigid and mechanical manner upon a single circumstance, i.e., whether or not at least one aggravating circumstance is present.3

It is instructive to translate the eligibility theory from the sentencing phase to the guilt phase. The majority's analysis of the historical evolution of death penalty jurisprudence since Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), leads it to conclude that the death penalty today is really the equivalent of the new substantive offense of "aggravated murder." However, even assuming the appropriateness of such an analogy, the state of Florida has defined the "substantive offense" as including the elements of murder plus two other elements--the existence of a statutory aggravating factor and the lack of sufficient mitigating circumstances to outweigh the aggravating factors. See Fla.Stat.Ann. Sec. 921.141(2) (West 1985). The majority's analysis looks only to the first element. Although it is true that the second element is dependent on discretion, this is certainly also true of other substantive offenses as well. For example, the difference between voluntary manslaughter and murder often turns on the fact-finder's discretion with respect to whether sufficient provocation exists. The court today wholly ignores the second element and thus produces a fundamentally flawed analysis.4

Finally, the eligibility test is inconsistent with Supreme Court precedent as revealed by a close reading of Smith v. Murray, supra, and Dugger v. Adams, supra. In both of those cases, there were other aggravating circumstances which could not have been tainted by the alleged constitutional error. Had the Supreme Court intended to adopt an eligibility test, it would merely have noted the existence of the untainted aggravating circumstance, concluded that the defendant was still eligible for the death penalty, and thus found that the miscarriage of justice standard was not satisfied. In fact, in Smith v. Murray, the Fourth Circuit had expressly relied on the fact that there were two aggravating circumstances and the alleged error related to only one of the two aggravating factors. The Supreme Court expressly noted this fact and the Fourth Circuit's reliance on it. 477 U.S. at 532, 106 S.Ct. at 2665. Thus, the fact that is crucial to the eligibility test was apparent to the Supreme Court, but the Supreme Court analysis focused not on eligibility, but rather on the accuracy of the sentencing determination.

Over 100 cases have considered the miscarriage of justice exception since Smith v. Murray, supra, was handed down. No court has adopted the eligibility theory articulated by this court today. Most of the cases have merely concluded in a rather summary manner that the miscarriage of justice standard was not satisfied. However, the Eighth Circuit has very clearly adopted substantially the same standard that I propose. The Eighth Circuit articulates the standard this way:

In the penalty-phase context this exception will be available if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.

Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1989); Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989). See also Henderson v. Sargent, 926 F.2d 706 (8th Cir.1991).

Certain themes can be culled from the Supreme Court and other precedent discussed above. First, we know that a constitutional claim that challenges only the admissibility of certain evidence without also contesting the reliability of that evidence provides insufficient grounds to excuse a procedural default. Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668. Second, we know that the appropriate standard focuses upon the accuracy of the sentencing determination. Smith v. Murray, 477 U.S. at 38-39, 106 S.Ct. at 2668. ("The alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones"; "its admission did not serve to pervert the jury's deliberations"; "substantial claim that the alleged error undermined the accuracy of the guilty or sentencing determination"). Third, we know that the appropriate standard does not focus on the generic nature of a claim that "by its nature" "might" affect the accuracy of the sentencing decision; rather, the test is whether the error did in fact undermine accuracy. Dugger v. Adams, 489 U.S. at 417 n. 6, 109 S. Ct. at 1218 n. 6. Fourth, we know that the appropriate standard focuses upon what the trier of fact would have done on the basis of the true facts. Kuhlmann v. Wilson, 477 U.S. at 454 n. 17, 106 S. Ct. at 2627 n. 17 ("the trier of facts would have entertained a reasonable doubt of his guilt" based upon "all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial"). Finally, we know that the standard must be one reserved for the extraordinary case.

Drawing upon the foregoing Supreme Court precedent, I submit that the appropriate standard should be as follows: The miscarriage of justice concept permits consideration of a defaulted claim, even in the absence of a showing of "cause," where the alleged constitutional error has resulted in a factually inaccurate sentencing profile, and the inaccuracies are so significant that the result would have been different.

The court, in adopting the eligibility test today, is apparently motivated by a desire to implement the Supreme Court mandate that the miscarriage of justice concept be reserved for the extraordinary case. Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. Respectfully, I submit that it is feasible to honor this mandate, without ignoring, as the court does today, the Supreme Court's mandate that the appropriate standard focus upon the accuracy of the sentencing determination. I submit that the standard I propose will be reserved for the rare case. Over 100 cases have considered the miscarriage of justice concept since Smith v. Murray, supra, was handed down. Almost no case has found that the standard was satisfied.5

Although most of the cases discuss the standard in summary fashion, because the standard I propose reflects the common sense meaning of the language used by the several applicable Supreme Court decisions, I submit that the cases have applied a similar standard. The Eighth Circuit has expressly done so. See Stokes; Smith, supra. No case has given the slightest indication of adopting the novel eligibility test adopted by the majority. Thus, the fact that over 100 cases have applied the standard, and so few have held that the standard was met, including no case in the capital sentencing context, provides strong evidence that the standard does implement the Supreme Court mandate that it be reserved for the extraordinary case.

To further ensure that the standard is reserved for the rare case, I propose an outcome determinative standard under which the reviewing court must conclude that the factual inaccuracies were so significant that it is more likely than not that the result would have been different.6 This is the higher standard which the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), rejected in favor of the lower "reasonable probability" standard to govern analysis of the prejudice prong of ineffective assistance of counsel. The Supreme Court described this higher standard as follows:On the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence.

Id. at 693-94, 104 S.Ct. at 2068. The higher, more likely than not, standard was not appropriate for the prejudice prong of ineffective assistance of counsel, but it is appropriate for the actual innocence exception. Here the "profound importance of finality in criminal proceedings" must be reflected.7

D. Application of the Standard to the Instant Case

The alleged constitutional error at issue in this case is ineffective assistance of counsel at sentencing. As indicated in the opinion for the court, the record indicates that the attorneys who conducted the sentencing phase were not present during the guilt phase. Petition at 78; Appendix 4 (Affidavit of Terry Terrell). The guilty verdict was returned on December 8, 1978. The penalty phase was to begin at 9 a.m. on December 9, 1978. The record indicates that counsel did not begin to look for a psychiatrist or psychologist to testify at the penalty phase until after the guilty verdict, i.e., until the day before sentencing. However, counsel did locate Dr. Yarbrough and were able to take Dr. Yarbrough to the jail at approximately 11 p.m. the night before sentencing. Record at 1619. However, counsel did not inform Dr. Yarbrough of Johnson's history of drug addiction. Petition at 25; Appendix 1 (Affidavit of Dr. Ronald Yarbrough). Dr. Yarbrough had 1 1/2 to 2 1/2 hours to interview, examine, and test defendant Johnson.

Dr. Yarbrough did testify the next morning before the jury. He was candid in saying that because of the time constraints his evaluation was only sufficient to draw a strong hypothesis. We also know from the motion for continuance that Dr. Yarbrough's evaluation was only preliminary and that additional testing and evaluation were needed.

Dr. Yarbrough told the jury that Johnson had a high average range of intelligence, and an extremely high level of common sense. He testified that Johnson was a survivor, that he thought quickly on his feet, and was a good decision maker. He testified that Johnson had a good sense of humor, had a good perception of things, was in contact with reality, and was not schizophrenic or psychotic. He testified that Johnson had positive feelings about his family. The sole mitigating evidence which Dr. Yarbrough presented to the jury was that Johnson was relatively free of conflicts and did not have significant anxiety until he got into serious difficulty; however, the tests strongly suggested that under states of intense emotional stimuli, Johnson's normal modes of behavior, of decision making and seeing things would deteriorate. Defense counsel asked Dr. Yarbrough a question which was obviously an attempt to elicit evidence in support of the statutory mitigating circumstance relating to emotional disturbance:And would his response in those situations--in those stressful situations, be characterized--could it be characterized or would you characterize it as the product of a mental or emotional disturbance?

Well, I would say that his ability to think and make decisions at a level that he's capable of functioning in a non-stressful situation deteriorates dramatically.

Record at 1521. On cross-examination, Dr. Yarbrough expressly conceded that there was no evidence of the statutory mitigating circumstance relating to the lack of capacity to appreciate the criminality of his conduct.

It is instructive to compare the foregoing testimony with the proffer in the instant proceedings that Dr. Yarbrough, if he had had appropriate time to evaluate Johnson and if he had known Johnson's mental health history including in particular his history of drug addiction, would have testified as follows. Dr. Yarbrough would testify that Johnson's addiction far exceeded that of a normal addict. Based on the newly-adduced evidence of the very severe drug addiction and the evidence of Johnson's abuse of drugs immediately preceding the instant murder, Dr. Yarbrough's professional opinion was that Johnson's "severe addiction was the primary guiding force in his life around the time of June, 1978," that Johnson was "under the influence of a totally controlling, extreme drug addiction which would have led to his mind being totally controlled by the presence or absence of drugs. In my professional opinion, this would qualify under mitigating circumstances for the F.S.1985, Sec. 921.141(6)(b)" [the extreme mental or emotional disturbance mitigating circumstance].8 Dr. Yarbrough would also give his professional opinion that Johnson

acted under extreme duress, when fired upon, and as indicated from his psychological testing, went into a totally emotional, irrational mode of response. At that instant, my opinion is that, due to his drug abuse and combined emotionality of the moment, Marvin's [Johnson's] capacity to appreciate the criminality of his behavior or to conform to the requirements of the law were substantially impaired. This set of circumstances would qualify under F.S.1985, Sec. 921.141(6)(e) and (f) [the extreme duress mitigating circumstance and the capacity to appreciate the criminality or to conform to the law mitigating circumstance].9

Other proffered evidence tends to confirm Dr. Yarbrough's revised assessment. Johnson has now been evaluated by Dr. Robert A. Fox, Jr. and by Dr. Peter Macaluso. Both of them conclude that Johnson's physical and psychological addiction was so overwhelming that it overpowered his capacity for rational thought.10 Both doctors conclude that Johnson's voracious appetite for drugs together with the fact that he had consumed a large variety of addictive narcotics on the day of the offense and the stress Johnson experienced when the victim began firing at him rendered Johnson unable to curtail his criminal actions or appreciate the nature of his actions.11

Moreover, it is significant that Johnson's drug addiction began not in the usual way which a fact finder might ordinarily condemn, but as a result of a motorcycle accident. The proffered evidence indicates that Johnson's drug addiction began as a result of the severe pain Johnson experienced from a serious back injury in a motorcycle accident. When the prescribed pain medication was discontinued, Johnson began self administering illegal narcotics in an attempt to ease the continuing pain.12

The significance of the new evidence is obvious. It is fair to say that there was no such mitigating evidence at sentencing. The sentencing judge so found. Now the proffered evidence indicates the presence of three statutory mitigating circumstances. See Fla.Stat. Sec. 921.141(6)(b) ("The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance"); Sec. 921.141(6)(e) ("The defendant acted under extreme duress or under substantial domination of another person"); Sec. 921.141(6)(f) ("The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired").

The primary claim of ineffective assistance of counsel in this case is that counsel had a little over one month between the jury sentencing on December 9, and the sentencing hearing before the judge on January 12. Counsel knew that Dr. Yarbrough's evaluation was preliminary and that further evaluation was needed. However, counsel did not utilize that time to complete the mental health evaluation, and present the substantial mitigating evidence that was available.

It is also significant that the record suggests that the sentencing judge overrode the jury verdict of life imprisonment and imposed the death penalty because he believed that there were no mitigating circumstances. See Record at 1723. The gist of the prosecutor's argument was that the judge should impose the death penalty because there were no mitigating circumstances. The prosecutor argued that there were no mitigating circumstances, and on that basis urged the sentencing judge to impose the death penalty.

Your honor, don't give some defendant who later comes before ... [a court]--to build a record on appeal by sentencing this defendant to life, and they say--"[w]ell look at all the aggravating circumstances this defendant had, and there weren't any mitigating circumstances, and he got life.

Record at 1756. In the written findings to support imposition of the death penalty, the sentencing judge found:

Marvin Edwin Johnson was not under the influence of extreme mental or emotional disturbance on June 7, 1978, when he committed the murder and robbery ... [t]here was no evidence that alcohol or drugs were being used by Marvin Edwin Johnson at the time the murder was committed.

Record at 1722. In rejecting the extreme duress mitigating circumstance, the sentencing court said: "The evidence submitted by the defendant's psychologist during the penalty phase of the trial clearly established that the defendant was not acting under duress...." Record at 1723. The sentencing judge also found that the "evidence clearly established that Marvin Edwin Johnson fully appreciated the criminality of his conduct and was capable of conforming his conduct to the requirements of law." Record at 1723. Finally in imposing the death penalty, the sentencing court held:

[A]fter weighing the aggravating and mitigating circumstances in this case, sufficient aggravating circumstances exist, as enumerated in subsection (5) of the statute and set forth in these findings of fact, for the imposition of the death penalty; and that there are no mitigating circumstances, as enumerated in subsection (6) and set forth in these findings of fact, to weigh against the aggravating circumstances....

Record at 1723 (emphasis added).

The question before this court is whether the fundamental miscarriage of justice concept permits consideration of the instant defaulted claim of ineffective assistance of sentencing counsel. Under the standard I propose, the first prong of the inquiry is whether the alleged constitutional error has resulted in a factually inaccurate sentencing profile. It is clear from the foregoing discussion that the proffered evidence would establish that the sentencing judge based his decision on a factually inaccurate sentencing profile.13 There was no evidence before the sentencing judge to establish the emotional disturbance mitigating circumstance, the extreme duress mitigating circumstance, or the mitigating circumstance relating to the capacity to appreciate the criminality of his conduct or conform his conduct to the law. The sentencing judge expressly found that these mitigating circumstances were not present. In fact, the sentencing judge found that no mitigating circumstances were present. However, the proffered evidence would establish the presence of three statutory mitigating circumstances, relating to extreme emotional disturbance, extreme duress, and the capacity to appreciate the criminality of the conduct or conform conduct to the law.

The second prong of the proposed standard is whether the factual inaccuracies in the sentencing profile were so significant that it is more likely than not that the result would have been different. The posture of the sentencing decision in this case is significant. In this case, the jury had returned a verdict recommending life imprisonment. Under Florida law, the sentencing judge is permitted to override the jury's recommendation of life only in cases in which it is determined that the facts suggesting death are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So. 2d 908, 910 (Fla.1975). Should a reasonable basis in fact exist which would support the jury's recommended sentence, then a judicial decision to override that recommendation will be vacated. See, e.g., Freeman v. State, 547 So. 2d 125, 129 (Fla.1989); Brown v. State, 526 So. 2d 903, 907-08 (Fla.), cert. denied, 488 U.S. 944, 109 S. Ct. 371, 102 L. Ed. 2d 361 (1988); Hawkins v. State, 436 So. 2d 44, 47 (Fla.1983); Webb v. State, 433 So. 2d 496, 499 (Fla.1983); Barfield v. State, 402 So. 2d 377, 382 (Fla.1981); Jacobs v. State, 396 So. 2d 713, 717 (Fla.1981); Brown v. State, 367 So. 2d 616, 625 (Fla.1979); Provence v. State, 337 So. 2d 783, 787 (Fla.1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2929, 53 L. Ed. 2d 1065 (1977). See generally Mann v. Dugger, 844 F.2d 1446, 1451 (11th Cir.1988) (collecting additional cases), cert. denied, 489 U.S. 1071, 109 S. Ct. 1353, 103 L. Ed. 2d 821 (1989).

Thus the question before the court is whether the sentencing judge would have overridden the jury's recommendation of life if counsel had adduced the evidence now proffered establishing the three statutory mitigating circumstances, and whether the Florida Supreme Court would have vacated any such override.14 Relevant to this inquiry is the fact that the Florida Supreme Court "frequently has reversed jury overrides where the jury could have found alcohol or drug abuse as a mitigating circumstance." Fead v. State, 512 So. 2d 176, 178 (Fla.1987). See Holsworth v. State, 522 So. 2d 348 (Fla.1988) (override improper in light of mitigating evidence that capacity to appreciate the criminality of his conduct or conform his conduct to the law was impaired as a result of drugs and alcohol); Masterson v. State, 516 So. 2d 256 (Fla.1987) (override improper in light of mitigating evidence of alcohol and drug problems dating back to injuries in Vietnam and evidence that defendants consumed substantial amounts of drugs and alcohol on the day of the murder); Cannady v. State, 427 So. 2d 723 (Fla.1983) (jury had reasonable basis for recommending life sentence in light of testimony concerning the psychological effects caused by defendant's history of indiscriminate drug use); see also Burch v. State, 522 So. 2d 810 (Fla.1988); Amazon v. State, 487 So. 2d 8 (Fla.), cert. denied, 479 U.S. 914, 107 S. Ct. 314, 93 L. Ed. 2d 288 (1986); Huddleston v. State, 475 So. 2d 204 (Fla.1985); Norris v. State, 429 So. 2d 688 (Fla.1983). The proffered mitigating evidence in this case is very similar to that which precluded the override in Holsworth, supra, and Masterson, supra. It is more substantial than the mitigating evidence of intoxication or drug abuse which was instrumental in precluding the override in the other cases cited. In addition, the proffered evidence in this case indicates that Johnson's addiction had a more benign origin--i.e., the motorcycle accident--thus providing additional mitigating impact. See Masterson, supra (noting that the defendant had been introduced to drugs in Vietnam).

Also relevant to this inquiry is the fact that the override issue was an extremely close question even in the absence of the new mitigating evidence now proffered. Five different justices of the Florida Supreme Court--including four who are currently sitting on that court--have at various times questioned the appropriateness of the original override in this case. On direct appeal, three justices dissented as to imposition of the death penalty on the ground that the override of the jury's recommendation of life was improper. Johnson v. State, 393 So. 2d 1069, 1075-76 (Fla.1980) (Sundberg, C.J., Overton and McDonald, JJ., dissenting from the sentence in various opinions). Two other members of the Supreme Court of Florida, Justices Barkett and Kogan, agreed with the majority in Johnson v. Dugger, 523 So. 2d 161 (Fla.1988), that the "law of the case" precluded further consideration of the jury override issue, but expressed their disagreement with the prior determination on direct appeal which upheld the jury override. 523 So. 2d at 163 (Barkett, J., specially concurring) ("I agree that we are bound by the law of the case on the jury override issue. However, I believe there was a reasonable basis for the jury's recommendation of life and thus that the court originally erred in sustaining the jury override"). Thus, a majority of the present Justices of the Supreme Court of Florida have expressed the view, even without the benefit of the newly proffered evidence, that the jury override was improper.

In light of the strict Tedder standard governing jury overrides, in light of the fact that the override issue was a close question even in the absence of the proffered mitigating circumstances, in light of the substantial force of the proffered mitigating evidence, and in light of the indication that the sentencing judge overrode the jury verdict because he believed that there were "no mitigating circumstances ... to weigh against the aggravating circumstances," I conclude that it is more likely than not that the sentencing judge would not have overridden the jury verdict had counsel adduced before him the evidence now proffered. Indeed, the totality of the circumstances, including the proffered statutory mitigating circumstances, persuade me that there is an even higher degree of certainty in this regard. Moreover, the Florida case law cited above demonstrates that the Florida Supreme Court would have vacated any override under such circumstances, thus increasing the degree of certainty that the result in this case would have been different but for the failure of sentencing counsel to present the mitigating evidence.

For the foregoing reasons, I respectfully dissent. The majority's analysis and conclusion will result in a fundamental miscarriage of justice. Because the test for fundamental miscarriage of justice is the same, whether the context is excuse for a state procedural default or for abuse of the writ, McCleskey v. Zant, --- U.S. ----, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991), both should be excused in this case and the case should be remanded to the district court to afford Johnson the opportunity at an evidentiary hearing to prove the facts he now proffers.