concurring in part and dissenting in part:
I.
The petitioner presents to this en banc court the following constitutional claims: (1) petitioner’s oral confession should not have been admitted into evidence during his state court trial; (2) the state sentencing court improperly limited the advisory jury to considering only statutory mitigating factors in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (I will refer to this claim as the “Lockett claim”); (3) the sentencing court, in instructing the advisory jury and in making its own findings, failed to require that the existence of aggravating circumstances, and the finding that aggravating circumstances outweigh mitigating circumstances, be proved beyond a reasonable doubt; (4) petitioner’s counsel was ineffective during the senténcing phase of petitioner’s trial; (5) the Florida Supreme Court, in reviewing petitioner’s capital sentence on direct appeal from the state trial court, violated the rule of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), by considering nonrecord material (I will refer to this claim as the “Brown claim,” see Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981)); (6) the Florida Supreme Court’s direct review of petitioner’s sentence was inconsistent with its review of other capital sentences; and (7) the Florida Supreme Court impermissibly allowed petitioner’s capital sentence to stand on direct appeal despite the sentencing court’s reliance on three improper aggravating circumstances (I will refer to this claim as the “Stephens claim,” see Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982)).
This court should address these claims in the following order: first, those challenging the validity of petitioner’s conviction; second, those challenging the validity only of petitioner’s sentence; and third, those challenging the validity only of the Florida Supreme Court’s review of petitioner’s sentence. I adhere to this procedure because if petitioner were to prevail on any claims in the first category, it would be unnecessary for us to address those in the latter two categories, because he would be entitled to a new trial. Similarly, if petitioner were to prevail on any claims in the second category, we would not have to address those in the third category because resentencing would be required.
Thus, petitioner’s claim regarding the inadmissibility of his oral confession must be decided first because a holding in his favor would require a new trial on the issue of guilt. Next, if necessary, we must consider those claims that attack the validity of petitioner’s sentence: the Lockett claim, the burden of proof claims, and the ineffective assistance of counsel claim. Finally, if necessary, we must consider those claims that attack the validity of the Florida Supreme Court’s review of petitioner’s sentence: the Brown claim, the inconsistency claim, and the Stephens claim.
I resolve these claims as follows: (1) There is no disagreement among the members of this court on the issue of the admissibility of petitioner’s oral confession; therefore, I adopt the conclusion and the reasoning of the panel opinion, Ford v. Strickland, 676 F.2d 434, 437-39 (11th Cir.1982). Wainwright v. Sykes, 433 *825U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars this claim; (2) Sykes bars petitioner’s Lockett claim; (3) Sykes bars petitioner’s claims that the existence of aggravating circumstances, and the finding that aggravating circumstances outweigh mitigating circumstances, must be proved beyond a reasonable doubt; (4) there is no disagreement among the members of this court over the disposition of petitioner’s claim that his counsel was ineffective at the sentencing phase of his trial; therefore, I adopt the panel decision that petitioner failed to prove this claim, 676 F.2d at 443;1 (5) I reach the merits of the Brown claim and hold that the Florida Supreme Court committed no constitutional error; (6) there is no disagreement among the members of this court regarding petitioner’s proportionality claim; therefore, I adopt the panel opinion rejecting this claim on the merits, id. at 442-43;2 (7) concerning petitioner’s claim that the Florida Supreme Court should not have allowed his sentence to stand in light of the sentencing court’s reliance on three improper aggravating circumstances, I find this case indistinguishable from Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), and, therefore, I find it necessary to invoke the Florida certification procedure to obtain a clarification of Florida law.
I make no further mention of claims 1, 4, and 6 above because the panel decided them correctly. In order to decide the remaining claims, it is necessary to examine the procedural history of this case, particularly the stages at which petitioner raised his claims.
II.
Petitioner was convicted in the Circuit Court for Broward County, Florida, of first-degree murder. At the sentencing phase of petitioner’s trial, the jury recommended the death penalty.3 The trial judge found eight aggravating circumstances and no mitigat*826ing circumstances, accepted the jury’s recommendation, and sentenced petitioner to death. Petitioner alleges that the sentencing court committed two constitutional violations: first, it impermissibly restricted the jury to considering only statutory mitigating factors in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and second, it failed to require that both the existence of aggravating circumstances and the finding that aggravating circumstances outweigh mitigating circumstances be proved beyond a reasonable doubt. Petitioner did not call either of these alleged violations to the attention of the trial court.
*827On direct appeal, petitioner presented neither alleged constitutional violation to the Florida Supreme Court. Petitioner raised three other claims, none of which are before this court. The Florida Supreme Court affirmed petitioner’s conviction and sentence, although it held that the sentencing court relied on three improper aggravating circumstances in imposing the death penalty.4 Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).
Petitioner alleges that the Florida Supreme Court committed two constitutional violations on direct review of his conviction and sentence: first, it impermissibly considered nonrecord material; and second, it impermissibly affirmed petitioner’s sentence despite holding that three of the eight aggravating circumstances the sentencing court relied on were invalid. Petitioner brought to the Florida Supreme Court’s attention the first of these alleged constitutional errors when he joined with one hundred and twenty-two other persons in filing a petition for a writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court’s alleged practice of considering nonrecord material in reviewing capital sentences. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). The Florida Supreme Court denied the writs, holding that no constitutional violation had occurred. Id. at 1330-33.
Petitioner next filed a motion in state circuit court for post-conviction relief under Florida Rule of Criminal Procedure 3.850. In support of this motion, petitioner argued for the first time, inter alia, the Lockett claim, and the burden of proof claims.5 The circuit court held that petitioner could not raise these claims on collateral attack of his conviction and sentence.
Petitioner appealed the circuit court’s denial of his motion for post-conviction relief to the Florida Supreme Court. Ford v. State, 407 So.2d 907 (Fla.1981). He sought to have the Florida Supreme Court decide the merits of the Lockett claim and the burden of proof claims by also filing a petition for a writ of habeas corpus. Id. at 908. In support of this petition, petitioner alleged that his appellate counsel was ineffective in failing to raise these claims before the Florida Supreme Court on direct appeal. He asked the court to grant him belated appellate review of these claims. The court rejected the ineffective assistance of appellate counsel claim,6 and affirmed the circuit court’s determination that petitioner could not raise the Lockett claim or the burden of proof claims on a motion for post-conviction relief: “[These claims] were all matters known at the conclusion of the trial which could have been, but were not, raised on direct appeal. Accordingly, collateral attack ... was properly determined by the trial court not to be an appropriate remedy .... ” Id. Thus, the petitioner’s failure to raise these claims either before the circuit court, during the criminal prosecution, or on direct appeal constituted a procedural default.
Next, petitioner filed this application for a writ of habeas corpus in federal district court. Before the district court, the petitioner raised all of the claims that now concern the en banc court: the Lockett claim, the burden of proof claims, the Brown claim, and the Stephens claim. Petitioner raised the first two claims despite his procedural default before the state courts.7
*828The district court ruled that because petitioner had made no showing of cause and prejudice to satisfy the standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), he was barred from challenging in federal court on a petition for a writ of habeas corpus the state court’s instructions to the jury at the sentencing phase of the trial. Therefore, Sykes barred consideration of the Lockett claim and the claim that aggravating circumstances must be proved beyond a reasonable doubt. The district court denied on the merits petitioner’s claim that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt,8 his Brown claim, and his Stephens claim.9
The petitioner then appealed to this court. A panel of this court rejected on the merits each of petitioner’s claims now under consideration.10 The panel reached the merits of the Lockett claim despite the district court’s holding that Sykes was dispositive of this claim and despite the state’s reliance on Sykes in its brief. Answer Brief of Respondents/Appellees at 27-31. The case now comes before this en banc court.
III.
Having recounted the procedural history of the case, I turn to the issues raised by petitioner’s claims. Petitioner’s first claim is that the following jury instruction violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978): “As to aggravating circumstances ... you shall consider only the following: [the court then recited the statutory factors]. As to mitigating circumstances . .. you shall consider the following [the court then recited the statutory factors].”11 State Trial Transcript at 1347^19. Petitioner complains that although the court omitted the. word “only” in connection with reciting the mitigating factors, the instruction was ambiguous enough that a reasonable juror could have thought he was precluded from considering nonstatutory mitigating factors.
Because petitioner never objected to the above instruction at trial or on direct appeal, the cause and prejudice standard of Sykes applies. The question of cause is a factual inquiry on which petitioner has the burden of proof. Petitioner never introduced any evidence, other than the record of the state court prosecution, to prove cause before the district court. Petitioner’s belated attempt to argue cause before this court is no substitute for the introduction of evidence at the district court level. Our appellate function is not to determine legal issues in the abstract or to find facts, but to decide whether the trial court erred. Because the trial court was faced with no direct evidence that would explain why petitioner’s attorney failed to object to the challenged instruction, it cannot be seriously contended that the trial court erred in holding that Sykes bars petitioner’s claim.
Petitioner’s argument that “reasonably effective counsel” would not have foreseen his Lockett claim at the time of his state court trial, Brief for Petitioner-Appellant at 36-37, misses the mark. The relevant ques*829tion is not what “reasonably effective counsel” would have foreseen, but whether petitioner’s attorney had cause not to object to the challenged instruction. This question cannot be answered in the abstract, but must be based on what counsel actually knew and his reasons for not objecting at trial. The possibility the state raises, Answer Brief of Respondents-Appellees at 29-30, that counsel’s choice not to object was based on strategic considerations, cannot be lightly dismissed.
Petitioner admits that he was not precluded from introducing evidence on non-statutory mitigating factors during the sentencing phase of his trial. Furthermore, petitioner admits that he introduced such evidence.12 Supplemental Brief for Petitioner-Appellant on Rehearing En Banc at 19 n. 1. The introduction of such evidence, coupled with counsel’s request that the jury not be instructed at all on aggravating and mitigating factors, State Trial Transcript at 1309, strongly suggests that counsel’s strategy was to direct the jury’s attention away from the instruction and toward the evidence presented, in order to allow himself the widest possible latitude in arguing his case to the jury. Thus, counsel sought to ensure that the jury would receive the issues as he had framed them, rather than as framed by the court in the form of an instruction.
The court declined counsel’s request that the jury not be instructed on such factors. Counsel then asked that the jury not receive a written instruction on such factors, and the court acceded to this request. Thus, counsel was still able to focus the jury’s attention on nonstatutory mitigating evidence. Counsel’s request that the jury not receive a written instruction reinforces the conclusion that counsel’s failure to object to the instruction was a carefully chosen trial stratagem.13
Counsel no doubt thought that had he objected to the instruction, his objection would have been overruled, and the court may have then prevented him from introducing evidence on nonstatutory mitigating factors or from arguing them to the jury. Counsel was faced with the choice of foregoing a favorable jury instruction but being allowed to introduce favorable evidence and to exploit such evidence to the fullest extent before the jury, or of attempting to procure a favorable instruction but, by alerting his opponent and the court to the issue, risk an adverse ruling not only on the instruction, but also on the evidence. Counsel chose the first alternative. This is precisely the type of deliberate tactical choice the Sykes standard is meant to address.
In conclusion, analysis of the state court trial record demonstrates clearly that petitioner’s failure to object was a matter of trial strategy. The petitioner has come forward with no evidence to the contrary. I conclude that, because he has failed to satisfy the “cause” prong of the “cause” and “prejudice” test of Wainwright v. Sykes, his Lockett claim is barred. I concur, there*830fore, in the result the majority reaches on this issue.14
IV.
Next, petitioner claims that both the existence of aggravating circumstances and the finding that aggravating circumstances outweigh mitigating circumstances must be proved beyond a reasonable doubt. He raises these claims now as an attack on the trial court’s failure either to instruct the jury on the proper burden of proof or to apply the proper burden of proof, later, in making its own findings.15 I hold that Sykes bars these claims.
Petitioner failed to raise any of the above attacks at trial or on direct appeal. Aside from that fact, petitioner has been totally inconsistent in raising these claims on state and federal collateral attack of his conviction and sentence. As discussed in Part II supra, petitioner raised his attack on the jury instructions on his motion for state post-conviction relief. The Florida Supreme Court barred this attack because of petitioner’s failure to raise it on direct appeal. Ford v. State, 407 So.2d at 908. The federal district court held that Sykes barred this attack. I would affirm this holding.
In federal district court, petitioner attacked for the first time the trial court’s failure to apply the proper burden of proof in making its own findings. Clearly, this was a “matter known at the conclusion of the trial,” Ford v. State, 407 So.2d at 908, and, therefore, it also should have been raised on direct appeal. Petitioner’s failure to do so is just as clearly a procedural default as is his failure to contest the jury instructions either at trial or on direct appeal. I believe the district court erred in reaching the merits of this claim.
This court is, therefore, faced with a clear state procedural default on these attacks. In reaching the merits of them, the majority adopts the practice, with which I vehemently disagree, of picking and choosing when to apply the Sykes standard.16 It is totally inconsistent for the majority to bar petitioner’s Lockett claim on Sykes grounds but to reach the merits of petitioner’s bur*831den of proof claims, without even acknowledging that a Sykes problem exists as to the latter claims.
Although I concur with the result the court reaches on this issue, I do not adopt its reasoning.17
*832V.
Petitioner’s next claim is that the Florida Supreme Court violated his constitutional rights by considering nonrecord material in reviewing his capital sentence.18 The petitioner argues that such consideration denied him the opportunity to attack the credibility of such materials in an adversarial manner. He bases this argument on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), which held invalid on due process grounds the imposition of a capital sentence based in part on mate rial that the petitioner had no opportunity to challenge. Because I believe Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981) is dispositive, I concur in the majority’s disposition of this claim.
Before addressing petitioner’s constitutional claim, this court must first determine whether the Florida Supreme Court relied on nonrecord material in affirming petitioner’s sentence. The crucial distinction, which I believe is never articulated clearly enough in the majority opinion, is whether the Florida Supreme Court relied on the material or merely read it. If only the latter is true, then I believe this court is faced with no constitutional question. I can fathom no constitutional rule, from Gardner or any other authority, that would preclude an appellate court from merely reviewing nonrecord material without relying on such material in the performance of its appellate function. Because the Brown opinion makes clear that the court indeed did not rely on nonrecord material in reviewing petitioner’s sentence, I find it unnecessary, as does the majority, to address the claimed constitutional violation.
In Brown, the Florida Supreme Court considered the contention of one hundred and twenty-two persons, including petitioner in this case, that the court’s practice of considering nonrecord information in reviewing capital sentences was unconstitutional. For purposes of addressing the claimed violation, the court assumed that it had engaged in the practice of requesting and receiving nonrecord information and that it had reviewed such information. Nevertheless, the court held: “[0]ur view of the nonrecord information petitioners have identified is totally irrelevant either to our appellate function in capital cases as it bears on the operation of the statute, or to the validity of any individual death sentence.” 392 So.2d at 1331.
The court then described its two functions in reviewing capital sentences: “First, we determine if the jury and judge acted with procedural rectitude in applying section 921.141 [the Florida capital punishment statute] and our case law .... The second aspect of our review process is to ensure relative proportionality among death sentences which have been approved statewide.” Id. The court then stated: “The record of each proceeding, and precedent, necessarily frame our determinations in sentence review. Our opinions, of course, then expound our analysis. Factors or information outside the record play no part in our sentence review role.” Id. at 1332. Finally, after discussing Gardner,19 the court stated: “It is evident, once our dual roles in the capital punishment scheme are fully appreciated, that non-record information we may have seen, even though never presented to or considered by the judge, the jury, or counsel, plays no role in capital sentence ‘review.’ ”20 Id. at 1332-33.
*833Not only is the foregoing language a clear statement of state law, as the majority recognizes, but it is also a clear statement of the procedure the court used in reviewing petitioner’s claim. First, Ford was a party in Brown. Second, although the Florida Supreme Court stated that in the future it would deny class status to habeas claims similar to the one before it, id. at 1330, the court considered the claims of all petitioners, not just Brown, and, in explicating a rule of law, effectively stated that it did not rely on nonrecord material in reviewing the sentences of any of the petitioners. The court speaks of petitioners in the plural throughout the Brown opinion. The Florida Supreme Court has thus made clear that it did not rely on nonrecord material in reviewing petitioner’s sentence.
In the face of this clear holding, the petitioner nevertheless argues that the court did rely on such material. The petitioner states: “To conclude that in a judgmental process [of the sort in which the court engages] the intrusion of extra-record psychiatric and psychological assessments of the petitioner and similar materials, especially when solicited by the court from the Department of Corrections in connection with the appeal, ‘play no part in our sentence review role,’ [quoting Brown] is to misconceive reality.” Brief for Petitioner-Appellant at 67-68. Petitioner’s argument is that although the members of the Florida Supreme Court may not have consciously relied on nonrecord material in reviewing his sentence, such information could not have been disregarded by the judges in this case. ' Petitioner argues: “It simply is not part of human nature to ignore what we have asked to see.” Supplemental Brief for Petitioner-Appellant on Rehearing En Banc at 13. Although petitioner recognizes that the premise that judges can disregard that which they must disregard is one of the most basic of our system of justice, petitioner still attacks this premise by asking this court to carve out an exception when judges have requested, rather than passively received, nonrecord materials.
My response to this argument is twofold. First, I see no logical basis for distinguishing between the two situations. If one accepts that judges are capable of disregarding nonrecord information, as this court must, such capability logically does not depend on how this information is obtained. Second, assuming that petitioner’s distinction is conceptually valid, adoption of such a distinction would be totally unworkable. Considering the frequency with which judges view nonrecord information, countless claims would arise that the judge viewed information that he could not disregard. Under petitioner’s analysis, these claims would turn on the factual issue whether the judge requested the information or passively received it. The burden of such a rule on the administration of justice would be staggering. Therefore, petitioner’s argument must be rejected.
Although the premise that judges can and do disregard that which they must disregard is a basic and, indeed, an absolute notion in our system of justice, this premise may in some instances be overridden by the equally fundamental notion that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954). There are circumstances in which the appearance of impropriety arising from the court’s consideration of prejudicial evidence is so great that the judge must step down. The judge steps down not because the judicial system assumes he is incapable of performing but because the appearance of impropriety to society at large is too detrimental to the judicial system.
Petitioner has never made this latter argument, however; rather, he has merely attacked the premise that judges can disregard nonrecord materials. Because petitioner makes no assertion that as a matter of federal constitutional law, members of the Florida Supreme Court should be forced to step down in this situation on the ground of appearance of impropriety, I intimate no view on this claim.
*834Based on the preceding analysis, I concur in the result the majority reaches on this claim.
VI.
The final question petitioner presents to this court is the constitutionality of the Florida Supreme Court’s decision, on direct appeal, to uphold petitioner’s sentence despite holding first, that two of the aggravating circumstances on which the sentencer relied were not supported by the evidence, and second, that two other aggravating circumstances the sentencer found should have been considered as being only one such circumstance. Ford v. State, 374 So.2d at 501-03.21 The court upheld the sentence because there still existed five proper aggravating circumstances and no mitigating circumstances.22 The court stated: “[E]ven though there was error in assessment of some of the statutory aggravating factors, there being no mitigating factors present death is presumed to be the appropriate penalty.” Id. at 503. Because I believe Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), controls the disposition of this claim, I respectfully dissent from Part III of the majority opinion.23
*835In Zant v. Stephens, Stephens had been convicted of murder in Georgia Superior Court. The sentencing jury found three statutory aggravating circumstances and sentenced Stephens to death. On direct appeal, the Georgia Supreme Court affirmed Stephens’ sentence, but held that one of the three aggravating circumstances relied on by the jury was invalid. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261, cert. denied, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 599 (1976). After attempting to exhaust his state remedies,24 Stephens petitioned the federal district court for a writ of habeas corpus. The district court denied the writ, but on appeal this court struck down Stephens’ death sentence because: “It cannot be determined with the degree of certainty required in capital cases that the instruction [which included the improper aggravating circumstance] did not make a critical difference in the jury’s decision to impose the death penalty.” Stephens v. Zant, 631 F.2d 397, 406 (5th Cir.1980), modified, 648 F.2d 446 (5th Cir.1981).
On certiorari to the Supreme Court, the Court stated the issue before it as follows: “Today, we are asked to decide whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence.” Zant v. Stephens, 456 U.S. at 414, 102 S.Ct. at 1857. In deciding this issue, the Court first identified the state law rule on which the Georgia Supreme Court relied in affirming Stephens’ sentence: “ ‘Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon.’” Id. at 414, 102 S.Ct. at 1858, quoting Gates v. State, 244 Ga. 587, 599, 261 S.E.2d 349, 358 (1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1332, 63 L.Ed.2d 772 (1980). The Court then stated: “Despite the clarity of the state rule we are asked to review, there is considerable uncertainty about the state law premises of that rule.” Id. at 414, 102 S.Ct. at 1858 (footnote omitted). Because the Court could not decide the question before it without first determining the state law premises of the rule under consideration, the Court invoked the Georgia certification procedure to ob*836tain clarification on this state law point. Id. at 416, 102 S.Ct. at 1859. As of the date of this opinion, the United States Supreme Court has not ruled further on Zant v. Stephens.
The majority attempts to distinguish Stephens by stating: “This case is appreciably different from Stephens because there the jury may have considered evidence that it could not constitutionally consider. In this case, no evidence considered was inappropriate for consideration.” Majority Opinion at 814. This distinction is totally unpersuasive for several reasons. First, it is abundantly clear that this court did not rely on the admission of improper evidence in finding a constitutional violation in Stephens. The court initially did rely on the admission of improper evidence in finding such a violation, Stephens v. Zant, 631 F.2d at 406, but later modified the opinion to delete any reference to the introduction of improper evidence, Stephens v. Zant, 648 F.2d at 446, although leaving the remainder of the opinion intact. This court’s express disclaimer in Stephens of any reliance on the introduction of improper evidence demonstrates that the majority is merely groping for a basis to distinguish Stephens.
Moreover, a careful reading of the Supreme Court’s opinion in Zant v. Stephens reveals that the Court itself makes no reference to the introduction of improper evidence. Indeed, the Court’s statement of the issue before it demonstrates that the Court was not concerned with improper evidence: “Today we are asked to decide whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence.” 456 U.S. at 414, 102 S.Ct. at 1857.25 This statement makes clear that there is no logical basis for distinguishing the issue presented to the Court in Stephens from the issue presented to this court today.26
The majority’s attempt to distinguish Stephens from this case on the basis whether improper evidence was admitted evinces the majority’s failure to grasp the fundamental problem with both the Georgia Supreme Court’s review in Stephens and the Florida Supreme Court’s review in this case. What concerned this court and the United States Supreme Court in Stephens, and what should concern this court today is how can a reviewing court apply a state law rule, which is, in effect, a conclusive presumption that death is the appropriate penalty in certain situations,27 to affirm a sen*837tence when it cannot tell whether the trial sentencing court would have imposed the same sentence absent the error found on review.28 It is this question which the United States Supreme Court asked the Georgia Supreme Court in Stephens.
By certifying the above question in Stephens, the Court was telling the Georgia Court that unless we misperceive that your role in capital cases is that of a pure reviewing court, the use of a conclusive presumption to affirm a death sentence when you cannot tell whether the same sentence would have been imposed absent the error you found on review, raises serious constitutional problems of arbitrary review. The Court did not, however, exclude the possibility that the Georgia Supreme Court has some resentencing power and that it, therefore, may have acted as a resentencing court. Therefore, the Court invoked the Georgia certification procedure to allow the Georgia Court to explain its sentence-review function.
The notion that an appellate court may act as a resentencing court is by no means foreign to the law, especially in capital cases. The Supreme Court has recognized that state supreme courts have the ultimate state authority to determine sentencing policy by noting, and indeed, requiring, that they ensure relative proportionality in capital sentencing. See Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976). In using this ultimate authority, conferred on it by the legislature, to promulgate state sentencing policy by establishing sentencing norms, see note 17 supra, the state supreme court may, in effect, act as a resentencer.
I use the following examples to illustrate the resentencing power of state supreme courts. To the extent such a court takes into account sentencing decisions occurring between the trial court’s original sentence and its review of that sentence in ensuring proportionality, the court must be acting as a resentencer because it is considering sentencing standards about which the original sentencer could not have known. In addition, a state supreme court may act as a resentencer when it reverses a sentence of death even though the record fully supports the trial court’s imposition of such sentence. In doing so, the court is promulgating a new sentencing norm which is contrary to the norm the trial court applied. Finally, such a court may act as a resentencer in cases like Ford. In such cases, the court reimposes the death penalty in circumstances different from, and less egregious than, those on which the trial sentencer relied. The court does this by applying a sentencing norm that the trial sentencer did not need to consider. Having stated these possible examples, I need express no opinion on the constitutional limitations of this resentencing power.
The Supreme Court in Stephens was asking the Georgia Court, therefore, whether it affirmed Stephens’ sentence in its capacity merely as a reviewing court or whether it used its resentencing power first to promulgate a sentencing standard controlling Stephens’ case, and then to resentence Stephens to death. Without knowing which of the above was true, the Supreme Court could not decipher, as I discuss at 842-843 infra, Stephens’ constitutional claim because the nature of his claim depended on what the state law premises, i.e., the rationale, for the conclusive presumption rule at issue were.
This case is identical to Stephens in that this court also cannot decipher petitioner’s constitutional claim. Although the state law rule on which the Florida Supreme Court relied in affirming petitioner’s sentence is clear, the state law premises of that rule are unclear. In Ford v. State, the Florida Court stated: “[Eijven though there was error in assessment of some of the statutory aggravating factors, there being no mitigating factors present death is presumed to be the appropriate penalty.” 374 So.2d at 503. Despite the clarity of this conclusive presumption rule, the Florida Supreme Court, like the Georgia Supreme *838Court in Stephens, has never explained the rationale for this rule.29 Therefore, this court must adhere to Stephens and invoke the Florida certification procedure to seek clarification from the Florida Supreme Court on its sentence-review function in Ford.30
The majority appears to believe that there is no need for certification because the Florida Supreme Court has explained the rationale for its conclusive presumption in two cases cited in Ford: Elledge v. State, 346 So.2d 998 (Fla.1977), and State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). In deciding that we need not certify the state law question at issue, the majority errs in the following respects. First, it is impossible to discern from Elledge and Dixon the rationale for the rule invoked in Ford that death was presumed to be the appropriate penalty because Elledge is largely inconsistent with Ford, and Dixon provides us with' little guidance. As I discuss later, Elledge, Dixon, and Ford provide at least four possibilities for the rationale for the rule. Second, I believe the majority fails to understand clearly that until we can determine the state law premises for the rule in question, we cannot frame petitioner’s constitutional claim. In fact, the majority does not frame petitioner’s constitutional claim in explicit terms because it is not really sure what that claim is. This court accomplishes nothing in attempting to adjudicate a claim the nature of which we cannot know. The majority’s decision is, therefore, a futile exercise in provisional decision making. It is provisional because the Florida Supreme Court, as the ultimate interpreter of state law, would always be free to reject the rationale that the majority imputes to that court for the Ford presumption. Third, the majority fails to perceive that the rationale it discerns, out of the many possible rationales, is the one that frames petitioner’s constitutional claim in the light most favorable to him. Under the majority’s interpretation of the Florida Supreme Court’s rationale, petitioner presents a serious constitutional claim which the majority fails to address adequately. I now discuss the majority’s three failures in greater detail.
To understand the possible rationales presented by Dixon, Elledge, and Ford it is necessary to examine those cases. Dixon was a case in which the Florida Supreme Court used four consolidated cases, three of which were before the court on questions certified from circuit courts, to determine the constitutionality of certain aspects of the Florida death penalty statute. The presumption language, which the Florida Court seized on in Ford to state that death is presumed to be the appropriate penalty when there are some statutory aggravating circumstances and no mitigating circumstances, began in Dixon when the Florida Supreme Court, in the course of describing the death penalty statute, turned from discussing aggravating circumstances to discussing mitigating circumstances, and stated, by way of transition: “When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances .... ” 283 So.2d at 9. This statement *839was unnecessary to the court’s disposition of any of the consolidated cases before it, none of which presented the question this court confronts today, and was, therefore, dicta.
The above language may be read in the context in which it was stated in one of two ways, the first of which I consider the much more likely. First, it is almost beyond question that this statement is nothing more than the Florida Court’s interpretation of general legislative intent. The court was merely interpreting the language of the Florida statute providing that the judge and jury, if they have found sufficient aggravating circumstances, must determine whether mitigating circumstances outweigh aggravating circumstances. Fla.Stat. § 921.141(2)(b) & (3)(b). See note 3 supra. The court’s statement in Dixon amounts probably to nothing more than an abstract reference to the legislature’s intent that if the sentencer finds some aggravating circumstances, it will usually impose the death penalty, unless it also finds some mitigating circumstances to balance against the aggravating circumstances.31 The statement is, therefore, nothing more than the court’s recognition that the legislature devised a balancing test for sentencing in capital cases. As such, and because this statement was not applied to any of the cases consolidated in Dixon, the court did not mean to state a rule of law to be applied in cases like Ford. Viewed as such, Dixon provides this court with no positive guidance in determining the rationale in question, and therefore, provides the majority with no basis for imputing a rationale to the Florida Supreme Court.
A second, very remote interpretation of this statement is that the court in Dixon was using its supervisory power over circuit courts to send to them the following message: if you have found more than one aggravating circumstance and no mitigating circumstances, and you impose the death penalty, we will presume that you intended to impose the death penalty based on each aggravating circumstance standing alone unless you have stated otherwise in your findings of fact and conclusions of law. This second possibility amounts to the Florida Supreme Court’s pronouncement of an instruction to the circuit courts that it will construe their findings and conclusions in the manner prescribed. Although the court may have meant so to instruct the circuit courts, no language in Ford even suggests that they were doing so. Consequently, the statement in Dixon is most likely a mere interpretation of general legislative intent that a balancing test be applied in capital cases. As such, Dixon is of little use to this court because it provides no rationale for the presumption in question.
In Elledge the Florida Supreme Court was faced with a case in which there were some proper aggravating circumstances, some improper aggravating circumstances, and, most important in distinguishing Elledge from Ford, some mitigating circumstances.32 In dicta, the court stated that had there been no mitigating circumstances present, “there [would have been] no danger that nonstatutory [aggravating] circumstances have served to overcome the miti*840gating circumstances in the weighing process which is dictated by our statute.” 346 So.2d at 1003. It is this dicta on which the majority seizes in finding the rationale for the rule invoked in Ford that death was presumed to be the appropriate penalty.
The majority makes the mistake of looking no further than this Elledge dicta. Had the majority also considered the Elledge holding, it would have seen that the rationale for the rule of presumption applied ip Ford is confused to say the least. After determining that the sentencing court had found some mitigating circumstances, the Elledge court framed the inquiry thus:
Would the result of the weighing process by both the jury and the judge have been different had the impermissible aggravating factor not been present? We cannot know. Since we cannot know and since a man’s life is at stake, we are compelled to return this case to the trial court for a new sentencing trial at which the [impermissible] factor ... shall not be considered.
Id. (citations omitted).
The above language is a clear holding, which, as I discuss at 843 infra, is based on federal constitutional grounds, that when the Florida Supreme Court cannot tell from the sentencer’s findings and conclusions whether it would have imposed the death sentence absent any invalid aggravating circumstance, it is “compelled to return [the] case to the trial court for a new sentencing trial.” This language suggests that the Florida Supreme Court, in reviewing death sentences, acts as a pure reviewing court and does not act as a resentencing court. However, Elledge does not preclude the possibility that the court has some re-sentencing power, but that it must restrain itself from resentencing when it cannot tell whether the trial court would have imposed the death sentence absent any invalid circumstance.
Rather than using the Ford opinion to explain its function in reviewing capital cases, the Florida Supreme Court confused matters further by affirming petitioner’s sentence with a brief statement of the rule at issue: “[E]ven though there was error in assessment of some of the statutory aggravating factors, there being no mitigating factors present death is presumed to be the appropriate penalty” (citing Elledge and Dixon). The affirmance of petitioner’s sentence, in conjunction with the Elledge holding, raises at least three possible rationales, in addition to those Dixon raises, for the court’s use of the above presumption.
The first possible rationale is that the Florida Supreme Court, acting in its capacity as a reviewing court, was able to tell from the trial court’s order that the trial court would have imposed the death sentence absent the invalid circumstances. This possibility is consistent with Elledge but it is unlikely for two reasons. First, the Florida Supreme Court, in examining the findings of fact and conclusions of law of the sentencing court, did not, and could not, point to any statement in which the court indicated what it would have done absent the invalid circumstances. It is possible that in such a situation the sentencing court would have given petitioner a life sentence. Without a statement from the sentencer about what it would have done absent the invalid circumstances, we would have to assume that the Florida Supreme Court is able to read the mind of the sentencing judge. Obviously, we cannot make this assumption. Second, the Florida Supreme Court itself has lent support to the proposition that it could not tell in Ford whether the sentencing court would have imposed the same sentence absent the invalid circumstances, because it relied on a presumption that death is the appropriate penalty when there are some aggravating circumstances and no mitigating circumstances. If the Florida Court was able to tell whether the sentencing court would have imposed the death sentence absent the invalid circumstances, it would have had no need to invoke any presumption. The court’s presumption logically should come into play only when the court cannot tell what the sentencing court would have done absent the invalid circumstances. The first possibility I pose is, therefore, unlikely.
*841A second possible rationale is that the Florida Supreme Court in Ford could not tell whether the trial court would have imposed the same sentence, but acted in its capacity as a resentencing court, rather than merely as a reviewing court, to resentence petitioner to death.33 This alternative is not totally inconsistent with Elledge if we interpret the court in Elledge as not precluding the possibility that it may sometimes act as a resentencing court. It is clear, however, that the court in Ford, by affirming the sentence rather than remanding the case for resentencing, did not show the same restraint as did the Elledge court, which, assuming it acted as a resentencer, felt compelled not to resentence because it could not tell whether the original sentencer would have imposed the death penalty absent the invalid circumstance.
There is some language in Ford to support this second interpretation. The court stated: “We ... make the specific finding that the killing was ‘especially heinous, atrocious, or cruel’ under [the Florida statute]” (emphasis added). This statement implies that the court exercises some resentencing power because if it did not exercise such power, it would be irrelevant what it finds. If it was acting purely as a reviewing court, the only relevant inquiry would be what the sentencing court found. Moreover, to the extent the Ford court relied on the dicta in Elledge in affirming petitioner’s sentence, it, in effect, acted as a resentencer because Elledge was decided after the trial court imposed petitioner’s sentence and, therefore, that court could not have known about Elledge. Nevertheless, we still must seek clarification from the Florida Supreme Court, because the above language is not strong enough to negate a third possibility, which I read the majority opinion as embracing.34
The third possible rationale is that, although the Florida Court in Ford could not tell whether the sentencer would have imposed the death sentence absent the invalid circumstances, it acted in its capacity as a pure reviewing court, and “logically presumed the weighing process would have reached the same outcome even had the sentencing court not added to the scales those aggravating circumstances found impermissible.” Majority Opinion at 815. This possibility requires this court to conclude that the Florida Supreme Court in Ford overruled sub silentio Elledge, the holding of which is based on federal constitutional grounds, as I discuss at 843 infra, and which holding compels the court to return for resentencing cases in which it cannot tell whether the trial court would have imposed the death sentence ab*842sent any invalid circumstances. Although the Florida Supreme Court is free to overrule its own interpretation of the Federal Constitution, the likelihood that the court overruled sub silentio the federal constitutional holding of a case the dicta of which— that when there are some aggravating circumstances and no mitigating circumstances there is no danger that invalid aggravating circumstances have skewed the weighing process in favor of death — it cited in direct support of its holding appears unlikely. The majority fails to address this problem.
Nevertheless, for purposes of argument, I concede that the third possibility is, in fact, a valid possibility. It is arbitrary, however, for this court to choose this possible rationale out of the variety of rationales previously discussed, not to mention any other rationales that the Florida Supreme Court may explicate, especially in light of the confusion engendered by the interplay of Dixon, Elledge, and Ford. The majority’s failure to allow the Florida Supreme Court the chance to alleviate this confusion reflects its lack of understanding of the various possible rationales for the rule in question.
Having described the majority’s first major failure, that it does not perceive the numerous possible rationales for the presumption rule in question, I now turn to the majority’s failure to perceive clearly that until this court knows the rationale for the presumption, we cannot frame petitioner’s constitutional claim. Indeed, petitioner cannot frame his own claim at this point for his claim takes a different form depending on which of the possible rationales is the true one.
The United States Supreme Court certified the state law question in Zant v. Stephens because it could not frame petitioner’s constitutional claim without knowing the role of the Georgia Supreme Court in reviewing death sentences. We are in the same posture in this case. For example, if the Florida Supreme Court acted in Ford only as a reviewing court, petitioner’s claim is that it is unconstitutional for a reviewing court arbitrarily to affirm sentence when it cannot tell whether the sentencing court would have imposed the same sentence absent the error found on review. However, if the Florida Court acted also as a resentencing court, petitioner would have to rely on a claim, for example, that the Florida Supreme Court unconstitutionally overstepped its power as a resentencing court by affirming sentence in this case. We cannot know exactly what petitioner’s claim is, and therefore we obviously cannot decide this case, until we know exactly what the Florida Supreme Court did in Ford.
The majority’s attempt to decide a claim the basis for which we cannot decipher is an exercise in total futility. In fact, the majority never describes petitioner’s claim in explicit terms. At the outset, it is important to note that we are dealing with an unexhausted claim, the significance of which escapes the majority. Had petitioner properly exhausted his claim in state court, the Florida Supreme Court would have had a chance to explain the rationale for the rule in question, and this court would not now be in the position of being asked to adjudicate a claim whose form cannot be determined. Unfortunately, we must do the best we can with this claim because Zant v. Stephens also involved an unexhausted claim and the Supreme Court, instead of dismissing the claim for want of exhaustion, attempted to determine the merits of the claim. Reluctantly, this court must do the same.35
The best this court can do in this case, however, is to seek clarification from the Florida Supreme Court. By rejecting petitioner’s amorphous claim on the merits and denying the writ, the majority accomplishes nothing. The petitioner will merely petition the Florida Supreme Court for a writ of habeas corpus36 and require the Florida *843Supreme Court to explain its presumption rule by presenting the same constitutional challenge to that court he now presents to this court. The Florida Supreme Court will then have to address squarely the constitutionality of its challenged practice, and in doing so explain the rationale for the rule. Assuming that court holds against petitioner, he would be free to come back to federal court with a properly crystallized constitutional claim. If the state suggests that the federal courts have already rejected petitioner’s claim by this court’s decision today, the petitioner will assert merely that this court could not have rejected petitioner’s claim, because at this point no one knows what that claim is. Therefore, the majority’s premature attempt to rid this court of petitioner’s claim will only come back to haunt this court at some future time. The circuitous path the majority takes in deciding this claim is totally at odds with the notion of finality, which notion is of utmost importance in the area of federal habeas review. We can avoid the needless litigation described above merely by asking the Florida Supreme Court directly to explain its use of the Ford presumption.37
Finally, the majority fails to recognize that the rationale it imputes to the Florida Supreme Court, which rationale the Florida Court is free to reject, presents petitioner with his strongest constitutional claim. In fact, Justice Sundberg of the Florida Supreme Court held in favor of such a claim in Elledge. Under the majority’s interpretation of the proper rationale, petitioner’s claim is that it is unconstitutional in a capital case for a reviewing court that finds error and that cannot tell from the findings of fact and conclusions of law of the sentencing court whether that court would have imposed the death penalty absent the error, to affirm the death sentence by invoking an arbitrary presumption that death is the “proper” penalty when there are some statutory aggravating ^circumstances and no mitigating circumstances. Certainly, this claim is not to be taken lightly. I need go no further than to quote the following language of Justice Sundberg in support of the Florida Court’s holding in Elledge that it was constitutionally “compelled” to return a case for resentencing when it could not tell what the sentencer would have done absent the invalid circumstance:
This result is dictated because, in order to satisfy the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentencing authority’s discretion must be “guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” (Emphasis supplied) Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913.
346 So.2d at 1003. The majority is, of course, free to reject Justice Sundberg’s interpretation of the Federal Constitution. I quote from Justice Sundberg only to emphasize the seriousness of petitioner’s constitutional claim. The majority handles this claim in three brief paragraphs which simply do not deal with petitioner’s claim.
In sum, the majority opinion is deficient in the three important respects enumerated above. First, it fails to realize that it is arbitrary for us to choose one possible rationale for the presumption in question from among the various possibilities. Second, and most important for purposes of the result in this case, it fails to recognize that because there exists numerous possible *844rationales for the Ford presumption, and because each rationale provides petitioner with a different constitutional claim, we cannot decide the amorphous claim with which we are now presented. Finally, the majority fails to realize that the rationale it imputes to the Florida Supreme Court provides petitioner with a serious constitutional claim, the merit of which the majority does not address.
Because the state law premises for the presumption in question are unclear, Stephens, which involved a similar and indistinguishable rule of presumption, compels this court to certify to the Florida Supreme Court almost the identical question the United States Supreme Court certified to the Georgia Supreme Court: “What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of [three] of the statutory aggravating circumstances found by the [sentencing judge]?” 456 U.S. at 416, 102 S.Ct. at 1859.
Based on the preceding analysis, I respectfully dissent from Part III of the majority opinion.
VII.
In conclusion, I adopt the decision of the panel on issues 1, 4, and 6, as those issues are stated in this opinion, supra at 824. I concur in the result this court reaches on issues 2, 3, and 5. My disposition of the Stephens issue, issue 7, is that this court must await the resolution of a state law question by the Florida Supreme Court before ruling on petitioner’s application for a
writ of habeas corpus.
. Furthermore, I note that petitioner does not contend that he received an improper hearing either before the state circuit court on his motion for post-conviction relief or before the federal district court, on his claim of ineffective assistance of counsel. On the contrary, the state circuit court conducted an exhaustive hearing on this claim. The federal district court would have been well within its discretion merely to adopt the findings of the state court and deny petitioner the opportunity to present further evidence. In an abundance of caution, the federal district court did entertain such evidence. Petitioner asserts no reason for this court to question the findings and conclusions of the federal district court or of the state circuit court, both of which were able to judge the credibility of the witnesses who testified for petitioner regarding his claim of ineffective assistance of counsel.
. I note that petitioner never presented his proportionality claim to the state courts and therefore never exhausted it. Because the state has not raised the exhaustion issue, however, it has waived it. Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1982). See note 23 infra.
. The Florida death penalty statute in force at the time of petitioner’s offense and sentence provided:
921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.—
(1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY. — Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.-082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigáting circumstances enumerated in subsections [5] and [6]. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Florida. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.
(2) ADVISORY SENTENCE BY THE JURY. — After hearing all the evidence, the *826jury shall deliberate and render an advisory sentence to the court, based upon the following matters:
(a) Whether sufficient aggravating circumstances exist as enumerated in subsection ;
• (b) Whether sufficient mitigating circumstances exist as enumerated in subsection
, which outweigh the aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.
(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH. — Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:
(a) That sufficient aggravating circumstances exist as enumerated in subsection , and
(b) That there are insufficient mitigating circumstances, as enumerated in subsection , to outweigh the aggravating circumstances.
In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections [5] and [6] and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082.
(4) REVIEW OF JUDGMENT AND SENTENCE. — The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within 60 days after certification by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed 30 days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
(5) AGGRAVATING CIRCUMSTANCES. —Aggravating circumstances shall be limited to the following:
(a) The capital felony was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital felony was especially heinous, atrocious, or cruel.
(6) MITIGATING CIRCUMSTANCES.— Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(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.
(g) The age of the defendant at the time of the crime.
Fla.Stat. § 921.141 (1975).
. See note 21 infra.
. In his motion for post-conviction relief before the circuit court, the petitioner also claimed that his trial counsel was ineffective. See note 1 supra. Petitioner did not raise the claim that the Florida Supreme Court impermissibly failed to require resentencing despite the invalidity of three out of eight aggravating circumstances, i.e., the Stephens claim; he never raised this claim in any state proceeding. See note 23 infra.
. The court also affirmed the circuit court’s holding that petitioner did not prove ineffective assistance of his trial counsel.
. Petitioner raised the Stephens claim despite his failure to exhaust his state remedies. See note 23 infra.
. The district court did not apply Sykes to bar petitioner’s claim that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt because petitioner did not raise this claim in district court as an attack on the state court jury instructions. As discussed in Part IV infra, the district court erred in failing to apply Sykes to this claim.
. The state did not raise petitioner’s failure to exhaust the lattermost claim in state court. See note 23 infra.
. The panel did not reach the merits, however, of the constitutionality of petitioner’s oral confession because petitioner had committed a procedural default and because he did not satisfy the Sykes cause and prejudice standard.
In addition, before the panel, the petitioner argued only that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt. He did not argue, at least in his initial brief, that aggravating circumstances must be proved beyond a reasonable doubt. The panel opinion does not address the latter claim. Technically, therefore, this claim is not properly before this en banc court.
. See note 3 supra.
. My resolution of the cause issue makes it unnecessary for me to decide the question of prejudice. Nevertheless, I note that petitioner’s introduction of evidence on nonstatutory mitigating factors, and the trial court’s allowance of argument on such evidence, strongly suggests that petitioner could not have been prejudiced by the challenged instruction, which at worst was merely an ambiguous instruction to an advisory jury. The state never even attempted to exploit this ambiguity. Petitioner’s claim that this perhaps ambiguous instruction, which enabled his attorney to present his case to the jury in the best light possible, resulted in a “miscarriage of justice,” Supplemental Brief for Petitioner-Appellant on Rehearing En Banc at 24 n. 11, borders on the frivolous.
. Also supporting this conclusion is petitioner’s failure ever to ask his trial attorney why he had failed to object to the challenged instruction. At petitioner’s state hearing on his motion for post-conviction relief, he called other attorneys to testify about his former counsel’s incompetence but he never called his former counsel, who was present at the hearing. At his federal habeas hearing, petitioner did call his state trial counsel, but still avoided questioning him about his failure to object to the Lockett instruction. Thus, petitioner’s failures at both the state and federal levels to question his former counsel about counsel's reasons for not objecting further support the conclusion that counsel’s failure to object was a deliberate trial stratagem.
. Because of the importance of applying the proper analysis to determine “cause” under Sykes, I must comment on Judge Kravitch’s dissenting opinion. We have stated: “One of the major concerns expressed by the Court [in Sykes] was to eliminate ‘sandbagging’ by defense lawyers who consciously chose to raise constitutional claims for the first time in a federal habeas proceeding.” Huffman v. Wainwright, 651 F.2d 347, 351 (5th Cir.1981) (citation omitted). Judge Kravitch’s opinion, however, actually would encourage sandbagging. Judge Kravitch decides that petitioner need not have objected to an instruction that he now challenges, because state law was unfavorable to the merits of his claim and no authoritative, federal pronouncement on the constitutional basis for the challenge existed, at the time of trial. Opinion of Kravitch, Circuit Judge, at 858. This approach would relieve the defense lawyer of any obligation to object to the law the trial court has determined to apply, although such law is unfavorable to his client, and although an objection at trial is the only way the issue can properly be preserved for appeal to the state appellate courts. Indeed, Judge Kravitch’s approach, by allowing counsel to forego an objection in state court and later to raise it in federal court, would implicitly instruct counsel not to object unless the federal constitutional right is already well established. This interpretation of “cause” would render a state’s contemporaneous objection rule wholly inapplicable when there was no authoritative constitutional pronouncement from a federal court to tell the lawyer he has a basis for an objection. It also would discard the lawyer’s traditional obligation to object when he thinks error detrimental to his client is being committed. Moreover, it would ensure that the state courts would be precluded from interpreting the Federal Constitution because such courts would be confronted only with those constitutional claims on which a federal court has spoken authoritatively. This result would fly in the face not only of Sykes, but of every case ever to recognize that in our federal system, it is a basic notion that state judges are obligated to, and do, uphold the Constitution in the same manner as do their federal counterparts.
. See note 10 supra. I note that petitioner could have raised these claims in state court either on state grounds, State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), or on federal grounds. This court is concerned, howr ever, only with petitioner’s federal grounds. Whether petitioner’s claims are supported by state law is irrelevant to whether the Federal Constitution compels the result for which petitioner contends.
. The district court’s failure to apply Sykes to the claim that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt does not excuse the majority’s failure to do so.
. Because of the majority’s resolution on the merits of the question whether aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt, and in response to the dissent of my brother Anderson, I am compelled to state my own preliminary views on this issue.
I believe Judge Anderson’s characterization of the process of weighing aggravating circumstances against mitigating circumstances as a “finding of fact,” Opinion of Anderson, Circuit Judge, at 878, is “clearly erroneous.” In determining whether aggravating circumstances outweigh mitigating circumstances, the sentencer makes no finding of fact, but rather engages in a normative determination whether the circumstances of the case are such that the death penalty may properly be imposed. By determining that one set of circumstances outweighs the other, the sentencer makes a normative, policy decision. The sentencer in effect determines state sentencing policy by formulating a norm, based on the facts of the case before it, to be followed by other sentencers in similar cases. The sentencer, therefore, acts not as factfinder, but as policymaker.
The Supreme Court has made it clear that such decisions as whether aggravating circumstances outweigh mitigating circumstances are normative determinations that must be consistent with each other. For example, in upholding the constitutionality of the Florida capital punishment scheme, the Court stated:
Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is “ ‘no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ ”
Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (quoting prior decisions). And in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Court stated:
[O]ne of the most important functions any jury can perform in making such a selection [as whether to impose capital punishment] is to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect “the evolving standards of decency that mark the progress of a maturing society.”
Id. at 519 n. 15, 88 S.Ct. at 1775-76 n. 15, quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958).
The inquiry does not end, however, with a determination that whether aggravating circumstances outweigh mitigating circumstances is a normative, policy decision rather than a finding of fact. The majority states: “The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party.” Majority Opinion at 818. The majority seems to believe that this statement ends the inquiry. Although I believe the court’s statement that one does not apply a standard of proof to a weighing process is correct, it is possible to apply a standard of confidence to such a process. Therefore, the court does not adequately address my brother Anderson’s argument that there is no logical obstacle to requiring the jury to have “a high degree of confidence” in its determination that aggravating circumstances outweigh mitigating circumstances. Opinion of Anderson, Circuit Judge, at 879.
Having determined that one could impose a high standard of conviction on a sentencing, policy decision, the question becomes whether there is any constitutional requirement that this court do so in this case. It is this question which I do not answer because of my disposition of this claim on Sykes grounds. Preliminarily, I am inclined to believe that relevant to this inquiry would be the significant due process protections already embedded in the Florida capital punishment scheme, many of which the Supreme Court recognized in holding in Proffitt, 428 U.S. at 259, 96 S.Ct. at 2970, that the Florida scheme “passes constitutional muster.” These protections include: a separate evidentiary hearing before an advisory jury and the sentencing judge to determine the appropriate sentence, Fla.Stat. § 921.141(1); a recommended sentence by an advisory jury, id. § 921.141(2); the requirement that the trial court, in imposing the death sentence, “set forth in writing -its findings upon which the sentence ... is based,” including the existence of aggravating and mitigating circumstances and the determination that aggravating circumstances outweigh mitigating circumstances, id. § 921.141(3); and independent appellate review to determine that the capital sentence is warranted and is not disproportionate, id. § 921.141(4). See note 3 supra.
. This material allegedly included “pre-sentence investigations, psychiatric evaluations or contact notes made in the corrections system after conviction, and psychological screening reports made after conviction by corrections personnel.” Brown, 392 So.2d at 1330 (footnote omitted).
. I cannot agree with Judge Kravitch that the Florida Supreme Court’s discussion of Gardner implies that the court believed there was “no state law barrier” to its reliance on nonrecord material. Opinion of Kravitch, Circuit Judge, at 851. This statement ignores all of the language quoted above. Rather, the court clearly held that under state law it did not rely on nonrecord material. I do not believe the court’s obligatory reference to Gardner alters that holding.
. I note now that although the Florida Supreme Court explained its sentence review function in Brown, this court, to decide petitioner’s Stephens claim, still needs further cla*833rification of that court’s role in reviewing capital sentences. See Part VI infra.
. The court held that the evidence did not support the following circumstances: “[t]he capital felony was committed by a person under sentence of imprisonment,” Fla.Stat. § 921.141(5)(a); and “[t]he defendant was previously convicted of another capital felony involving the use or threat of violence to the person,” id. § 921.141(5)(b). The court held that the following two aggravating circumstances were in fact only one such circumstance: “[t]he capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of . . . any [robbery or certain other enumerated crimes], id. § 921.141(5)(d); and “[t]he capital felony was committed for pecuniary gain,” id. § 921.-141(5)(f).
. See note 3 supra.
. Initially, I note that petitioner never raised this claim in state court. I assume the state provided this court with all of petitioner’s “briefs on appeal,” as mandated by 28 U.S.C. § 2254, Federal Habeas Rule 5, including any briefs filed in support of petitioner’s motion for rehearing in the Florida Supreme Court. I can discern no Stephens claim from any of these materials.
Petitioner could have raised his Stephens claim in state court by petitioning the Florida Supreme Court for rehearing, Fla.R.App.P. 9.330, or by filing a petition for a writ of habeas corpus invoking the Florida Supreme Court’s original jurisdiction, Fla.R.App.P. 9.100. Had the state opposed petitioner’s claim in the district court for want of exhaustion, we would be required to dismiss the claim. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Under Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1982), the state waives the exhaustion requirement by failing to raise it, which is what occurred here. Therefore, under Lamb this court should consider petitioner’s Stephens claim. Moreover, the Stephens case itself implicitly compels this court to reach the merits of petitioner’s claim despite petitioner’s failure to exhaust. As discussed in the text, Stephens controls this case because it presented the same issue to the Supreme Court that now faces this court. In Stephens, Stephens attempted to exhaust his state remedies by filing a petition for writ of habeas corpus in the Georgia Supreme Court. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 55 L.Ed.2d 667 (1978). In that petition, Stephens’ complaint was that that court’s affirmance of his sentence despite the invalidity of one aggravating circumstance was impermissible “because presenting evidence to the jury to support that invalid aggravating circumstance was prejudicial error.” 241 Ga. at 603, 247 S.E.2d at 97. Stephens did not argue, however, that the Georgia Supreme Court’s earlier action in affirming his sentence “create[d] such potential for the intrusion of arbitrary influences into his sentence as to violate his constitutional rights . ... ” Stephens v. Zant, 631 F.2d 397, 405 (5th Cir.1980), modified, 648 F.2d 446 (5th Cir.1981). Instead, this amorphous claim was first raised in federal court on Stephens’ application for a writ of habeas corpus. Although these claims are related, they are very different; the Georgia Supreme Court could not have been apprised of petitioner’s federal constitutional claim by his invocation of his state evidentiary claim. Therefore, Stephens also involved a case of failure to exhaust state remedies.
Despite Stephens’ failure to exhaust the claim he presented to the federal courts, and, as I discuss in the text at 842-843 infra, although the Supreme Court could not decipher petitioner’s claim because such claim had not been exhausted, the Supreme Court noted that Stephens had “exhausted] his state post-conviction remedies,” 456 U.S. at 413, 102 S.Ct. at 1857 (emphasis added), and proceeded to address the merits of his claim. Apparently, the Court believed it was enough that Stephens *835had exhausted his state post-conviction remedies, and that he did not have to exhaust each of his claims. The following considerations negate any suggestion that the Court believed that Stephens had exhausted his claim: first, the Court’s failure to say so explicitly; second, both this court’s and the Supreme Court’s failure to mention, in discussing the merits of his claim, the Georgia Supreme Court’s opinion in Stephens v. Hopper, the only case in which Stephens may have exhausted his claim. Presumably, if petitioner had exhausted his claim before the Georgia Supreme Court, that court’s decision would have been relevant to this court and to the Supreme Court; and third, the Supreme Court’s need to invoke the Georgia certification procedure to obtain clarification on a state law question. As discussed below, such clarification probably would have been unnecessary had the Georgia Supreme Court had a chance to rule on petitioner’s claim. In sum, one must conclude that the Supreme Court did not believe that petitioner had exhausted his claim.
Because Stephens did not exhaust his claim, and because the Court reached the merits of that claim, Stephens compels this court also to reach the merits of petitioner’s claim, despite his failure to exhaust. If Stephens did not require this court to reach the merits of petitioner’s claim, I would be inclined to dismiss the petition without prejudice to petitioner exhausting his claim in state court, despite the state’s failure to raise the exhaustion issue. Had petitioner in this case, and respondent in Stephens, properly exhausted their claims, this court, and the Supreme Court, might have had the benefit of a much clearer presentation of the constitutional issue. Indeed, in Stephens the Court was compelled to invoke the Georgia certification procedure in order to seek clarification on a state law question. 456 U.S. at 417, 102 S.Ct. at 1859. Had the Georgia Supreme Court initially had a chance to rule on the claim, and in so ruling, the chance to explain its rationale, the United States Supreme Court may have found it unnecessary to invoke the state certification procedure. This court is now faced with the same problem. Because of unclear state law, which might have been clarified had petitioner properly exhausted his claim, I believe it is necessary to invoke the Florida certification procedure, which this court is compelled to do under Zant v. Stephens.
. See note 23 supra.
. In Stephens, the jury imposed the death sentence. In this case the jury was only advisory, and the trial court imposed the sentence. This difference is not a basis for distinguishing Stephens, and the majority makes no attempt to state otherwise. The issue in both Stephens and in this case involves the function of the reviewing court. On this issue, it makes no difference whether the sentence is imposed by a judge or by a jury.
. Although I believe that' Stephens is indistinguishable from this case, I do not agree with Judge Kravitch’s reasoning that the two cases are indistinguishable because in both cases the sentencing court considered improper evidence. Opinion of Kravitch, Circuit Judge, at 866. Judge Kravitch states, in connection with petitioner’s sentencing, that “the defendant’s ‘ad-mi[ssion] [of] the ■ unlawful sale of narcotics drugs,’ is irrelevant to any [proper statutory aggravating factors].” Id. at 866 n. 42. First, as I state in the text, I believe that neither this court nor the Supreme Court was concerned with the admission of improper evidence in Stephens. Second, I believe that Judge Kravitch overlooks that the sentencing court in this case considered the above evidence not only in support of the improper aggravating circumstance that “defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person,” Fla.Stat. § 921.141(5)(b), but also to rebut the mitigating circumstance petitioner sought to prove, that “defendant has no significant history of prior criminal activity,” Fla.Stat. § 921.141(6)(a), Ford v. State, 374 So.2d at 500 n. 1. Therefore, this evidence was properly before the sentencing judge, despite the invalidity of the above aggravating circumstance.
. The reason the rule amounts to a conclusive rather than a rebuttable presumption is that it is employed on review and, therefore, the defendant has no opportunity to meet the presumption. The fact that a presumption employed on review must be conclusive highlights that presumptions were meant to be used as an evidentiary tool at trial, and not on review. See Fed.R.Evid. 301.
. As I discuss in the text at 843 infra, Justice Sundberg of the Florida Supreme Court foresaw this problem in Elledge v. State, 346 So.2d 998 (Fla.1977).
. The Florida Supreme Court has invoked the rule at issue in the following cases: Enmund v. State, 399 So.2d 1362, 1373 (Fla.1981); Armstrong v. State, 399 So.2d 953, 962-63 (Fla.1981); Sireci v. State, 399 So.2d 964, 971 (Fla.1981); Demps v. State, 395 So.2d 501, 506 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Brown v. State, 381 So.2d 690, 696 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981); Dobbert v. State, 375 So.2d 1069, 1071 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); LeDuc v. State, 365 So.2d 149, 152 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979).
. Florida Rule of Appellate Procedure 9.150(a) provides: “Upon either its own motion or that of a party, the Supreme Court of the United States or the United States Court of Appeals may certify a question of law to the Supreme Court of Florida whenever the answer is determinative of the cause and there is no controlling precedent of the Supreme Court of Florida.”
. I use the word “usually” because the sentencer clearly has the discretion to impose a sentence of life imprisonment even if it finds many aggravating circumstances and no mitigating circumstances. Fla.Stat. § 921.141(2)(c) &(3).
. I note that although petitioner introduced mitigating evidence at his sentencing trial, apparently this evidence did not rise to the level of any mitigating circumstances, statutory or otherwise, because the Florida Supreme Court, in applying its presumption rule in Ford, explicitly stated that there were “no mitigating factors present.” 374 So.2d at 503. It is not clear to me from the sentencing court’s order whether this was in fact the case. The sentencing court concluded: “There are no mitigating circumstances existing — either statutory or otherwise — which outweighs any aggravating circumstances, to justify a sentence of life imprisonment rather than a sentence of death.” Id. at 501 n. 1. This statement is ambiguous. It may mean that no mitigating circumstances existed at all, or that those that did exist did not outweigh the aggravating circumstances present. Nevertheless, the Florida Supreme Court adopted the former interpretation, and I accept that interpretation for purposes of adjudicating petitioner’s claim.
. Although the supreme court’s statement of its role in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), tends to negate that it acts as a pure resentencing court, I do not believe that Brown, in which the court was faced with a claim totally different from the one here, see Part V supra, eliminates this possibility. The court may in some instances act as a resentencing court, yet still have no discretion, under state law, to consider nonrecord material in performing its resentencing function.
. Similarly, I read Chief Judge Godbold also as embracing the third possibility. He suggests that the Florida Supreme Court in Ford applied a rule of “harmless error.” If the Florida Court acted as a resentencer, the second possibility I have posed, it would probably not apply a rule of harmless error because the error most likely would be irrelevant, rather than harmless. The term “harmless” connotes harmless to the trial court’s sentence. If the court used a harmless error rule as a resentencer in Ford, it would have had to explain what relevance the trial court’s original sentence had to its resentence. Because no such explanation exists, it is unlikely that the court applied a rule of harmless error as a resentencing court. The first possibility I have posed, that the court, as a reviewing court, knew what the sentencer would have done is so at odds with reality, as discussed in the text at 840 supra, that I cannot read the chief Judge’s opinion as embracing it. Therefore, he must be embracing the third possibility, as does the majority. Although the Chief Judge recognizes the seriousness of the petitioner’s claim as framed by the third rationale, which the majority does not, he fails, as does the majority, to recognize that the rationale he imputes to the Florida Supreme Court is only one of many possibilities and that until we can determine conclusively the proper rationale, we cannot decipher petitioner’s constitutional claim, and, therefore, cannot decide this case.
. See note 23 supra.
. At this point, a petition for a writ of habeas corpus would probably be the only way in which petitioner could present this claim di*843rectly to the Florida Supreme Court. A rehearing would almost certainly not be available. See Fla.R.App.P. 9.330(a) & (b).
. As I describe at note 23 supra, the notion of finality would best be served if courts were careful to dismiss unexhausted claims. This case is the ultimate example of a claim the form of which no one can determine because of petitioner’s failure to exhaust his state remedies. The courts should not, however, accept total blame for the quandary we are in today. The state, which is often heard to complain that federal courts are not sensitive enough to the finality of state proceedings, must share some of the blame because of its failure to raise in federal court the petitioner’s failure to exhaust.