concurring in part and dissenting in part:
I do not agree with the majority’s per curiam disposition of this case. In my view it is the responsibility of this court to defer issuance of the opinion pending the Supreme Court’s final disposition in Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reh. denied and modified, 648 F.2d 446 (5th Cir.1981), certified to Supreme Court of Georgia, 456 U.S. 410, 102 S.Ct. 1856, 72 L. Ed.2d 222 (1982) and Barclay v. Florida, 411 So.2d 1310 (Fla.1982), cert. granted,-U.S. -, 103 S.Ct. 340, 74 L.Ed.2d 382 (1982).1
Because, however, the majority has adopted the procedure outlined in the per curiam, I proceed to the merits of Ford’s appeal.
Although I concur in Parts IV, VI,1a and VII of the majority’s opinion *845and its conclusion in Part V,2 I write separately because I disagree with the majority’s resolution of the sentencing issues in Parts I, II, and III. ■ In my view, Supreme Court and former Fifth Circuit precedents3 compel reversal on the claim that the state court considered extra-record information in reviewing petitioner’s sentence and on the aggravating and mitigating circumstances claims.
I.
Brown Issue: Florida Supreme Court’s Consideration of Extra-Record Materials
Petitioner claims the Florida Supreme Court violated his constitutional rights by reviewing reports, evaluations, and other materials relevant to his character that he was unaware were being used and was afforded neither access to nor an opportunity *846to rebut. Petitioner initially raised this claim with 122 other capital defendants in a habeas action in the Florida Supreme Court. 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 court accepted arguendo the “petitioners’ most serious charges,” id. at 1331, but held that as a matter of law petitioners were not entitled to relief, id. at 1331-33. Its reasoning in rejecting the claim was twofold. First, it declared that extra-record materials are “irrelevant” to, and “play no part in,” its review of capital sentences. Id. at 1331, 1332. Second, it held that the rule in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), on which petitioners relied was inapplicable to situations where extra-record information was considered only at the review stage and not during the initial sentencing proceeding. Id. at 1331— 33.
A. Was the Challenged Practice Constitutional?
The state adopts the Florida Supreme Court’s argument that Gardner, which reversed a death sentence imposed by a trial judge after reviewing nonrecord evidence, is inapplicable to an appellate tribunal’s review of nonrecord materials. The majority — although ultimately declining to decide the merits of petitioner’s Gardner claim— alludes to the above argument in an attempt to trivialize petitioner’s constitutional claim.4 The principles the Supreme Court articulated in Gardner, however, which are at the core of its recent constitutional precedents on capital sentencing, condemn with equal force the review of non-record information by appellate and trial courts.
1. Constitutional Underpinnings of Gardner
Despite a long jurisprudential tradition of relaxed procedural requirements and largely discretionary decisionmaking at the sentencing stage, see, e.g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); McGautha v. Maryland, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); see generally Note, The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals, 89 Harv.L.Rev. 356, 359-73 (1975), the last decade has seen substantial change in the constitutional law governing sentencing in capital cases. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) several members of the Supreme Court first articulated the view, now espoused by a majority of the Court,5 that the significance of the sentencing process and its effect on the defendant are greater in cases involving the death penalty, which “differs from all other forms of criminal punishment, not in degree but in kind.” Id. at 306, 92 S.Ct. at 2760 (Stewart, J., concurring). See id. at 286-91, 92 S.Ct. at 2750-53 (Brennan, J., concurring); id. at 314 — 71, 92 S.Ct. at 2764— 93 (Marshall, J., concurring). Furman thus held that imposition of the death penalty violates the eighth amendment where the *847process by which it is imposed is standard-less and arbitrary. Furman’s 1976 progeny6 reaffirmed this principle, emphasizing that capital sentencing procedures must not create “a substantial risk that the death penalty [will] be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Powell, Stewart & Stevens, JJ.); id. at 207, 220-22, 96 S.Ct. at 2941, 2947-48 (White & Rehnquist, JJ. & Burger, C.J., concurring); Jurek v. Texas, 428 U.S. 262, 274, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (opinion of Powell, Stewart & Stevens, JJ.); id. at 277, 279, 96 S.Ct. at 2958, 2959 (White & Rehnquist, JJ. & Burger, C.J., concurring); Proffitt v. Florida, 428 U.S. 242, 252-53, 258, 96 S.Ct. 2960, 2966-67, 2969, 49 L.Ed.2d 913 (1976) (opinion of Powell, Stewart & Stevens, JJ.); id. at 260-61, 96 S.Ct. at 2970 (White & Rehnquist, JJ. & Burger, C.J., concurring). In these cases a majority of the Court held that sentencer discretion in capital cases must be “directed and limited” to provide consistent and rational imposition of the death penalty, Gregg v. Georgia, 428 U.S. at 189, 96 S.Ct. at 2932-33 (opinion of Powell, Stewart & Stevens, JJ.); id. at 220-22, 96 S.Ct. at 2947 (White & Rehnquist, JJ. & Burger, C.J., concurring); Proffitt v. Florida, 428 U.S. at 255-58, 96 S.Ct. at 2968-69 (opinion of Powell, Stewart & Stevens, JJ.); id. 260-61, 96 S.Ct. at 2970 (White & Rehnquist, JJ. & Burger, C.J., concurring); Jurek v. Texas, 428 U.S. at 270-74, 276, 96 5. Ct. at 2955-57, 2958 (opinion of Powell, Stewart & Stevens, JJ.); id. at 279, 96 S.Ct. at 2959-60 (White & Rehnquist, JJ. & Burger, C.J., concurring), and to ensure “reliability in the determination that death is the appropriate punishment in a specific case,” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Powell, Stewart & Stevens, JJ.); see also Gardner v. Florida, 430 U.S. 349, 359, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (plurality opinion); id. at 362, 363-64, 97 S.Ct. at 1206, 1207-08 (White, J., concurring).
The Court’s most recent capital sentencing decisions have continued to focus on minimizing the risk of arbitrary decision-making. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 874-875, 71 L.Ed.2d 1, 8-9 (1982); id. at 118, 102 S.Ct. at 878, 71 L.Ed.2d at 13 (O’Connor, J., concurring); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (plurality opinion); id. at 433, 438-42, 100 S.Ct. at 1767, 1769-72 (Marshall & Brennan, JJ., concurring); Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality opinion); Gardner v. Florida, 430 U.S. at 358, 97 S.Ct. at 1204-05; id. at 363-64, 97 S.Ct. at 1207-08 (White, J., concurring). Whereas earlier cases focused on the quantity of information before the sentencing tribunal, e.g., Williams v. New York, 337 U.S. at 247, 69 S.Ct. at 1083, recently the Court has shown greater concern for the quality of such information. Gardner v. Florida, 430 U.S. at 359, 97 S.Ct. at 1205; id. at 363-64, 97 S.Ct. at 1207-08 (White, J., concurring). The Court has recognized the defendant’s interest both in presenting evidence in his favor, Eddings v. Oklahoma, supra (plurality opinion); Lockett v. Ohio, supra (plurality opinion); id. at 620-21, 98 S.Ct. at 2972-73 (opinion of Marshall, J.), and in being afforded the opportunity to explain or rebut evidence offered against him, Gardner v. Florida, 430 U.S. at 362, 97 S.Ct. at 1206-07; id. at 363-64, 97 S.Ct. at 1207-08 (White, J., concurring). Reliability in the factfinding aspect of sentencing is the cornerstone of the Court’s decisions. See, e.g., Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964 (plurality opinion); Gardner v. Florida, 430 U.S. at 359-60, 362, 97 S.Ct. at 1205; id. at 363-64, 97 *848S.Ct. at 1207-08 (White, J., concurring); Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991 (opinion of Powell, Stewart & Stevens, JJ.).
2. Gardner
In Gardner, the Court reversed a death sentence imposed on the basis of material not disclosed to the defendant,7 holding that procedure unconstitutional under the eighth amendment and the due process clause.8 The plurality rejected the state’s asserted justifications for allowing imposition of the death penalty on the basis of confidential information, reasoning that the risk that such information “may be erroneous, or may be misinterpreted, by the investigator or by the sentencing judge, is manifest,” and “the interest in reliability [in capital sentencing] plainly outweighs the State’s interest in preserving the availability of [such] information.” Id. at 359, 97 S.Ct. at 1205.
3. Application of Gardner
The state’s argument that the Constitution does not prohibit consideration of non-record information at the appellate level must proceed from one or both of the following premises: that rational appellate review is not an essential component of capital sentencing procedures under the eighth amendment, or that use of nonrecord information without notice to the defendant will not undermine the reliability of appellate review in the same way Gardner recognized it would affect the reliability of initial sentencing. Either premise is erroneous.
A meaningful appellate review process is one of the two fundamental requirements of capital sentencing procedures established by the Supreme Court’s 1976 death penalty decisions.9 See Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990 (plurality opinion); Roberts v. Louisiana, 428 U.S. at 335 & n.11, 96 S.Ct. at 3007 & n.11 (plurality opinion). Indeed, the Court relied on the appellate review provision in upholding the Florida statute under which petitioner was sentenced, viewing it as one of the means by which the statute assured that the death penalty would not be imposed on the basis of passion, prejudice, or any other arbitrary factor. Proffitt v. Florida, 428 U.S. at 250-53, 258-59, 96 S.Ct. at 2965-67, 2969-70 (opinion of Powell, Stewart & Stevens, JJ.). Accord Gregg v. Geor*849gia, 428 U.S. at 204-06, 96 S.Ct. at 2939-40 (opinion of Powell, Stewart & Stevens, JJ.); id. at 211-12, 96 S.Ct. at 2942-43 (White & Rehnquist, JJ. & Burger, C.J., concurring) (Georgia statute’s appellate review provision ensures that death penalty will not be imposed capriciously). Cf. Gardner v. Florida, 430 U.S. at 360-61, 97 S.Ct. at 1205-06; id. at 363-64, 97 S.Ct. at 1207-08 (White, J., concurring) (trial judge’s failure to make available to appellate court information he considered in imposing sentence renders sentencing procedure invalid). The careful consideration given by the Supreme Court to the adequacy of the Florida statute’s appellate review procedure belies any suggestion that the Court did not consider appellate review integral to capital sentencing. See Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969-70.
Second, an appellate court’s reliance on nonrecord information, without providing notice to the defendant of the substance of that information or an opportunity to contest its accuracy, risks arbitrary imposition of death such as was condemned in Furman. The state insists that there is no such risk involved here because the appellate court merely reviewed, and did not “impose,” petitioner’s sentence. If in deciding to affirm petitioner’s sentence the Florida court reviewed and relied on undisclosed, and possibly inaccurate, information concerning petitioner’s character and prison record, however, that court’s disregard for the interests of petitioner and society in ensuring that death sentences are predicated on reliable factfinding is no less egregious than the similar actions of the trial judge who imposed the sentence invalidated in Gardner. In both situations the “[assurances of secrecy are conducive to the transmission of confidences which may bear no closer relation to fact than the average rumor or item of gossip”; in both the absence of defense counsel’s participation precludes the adversarial debate our system recognizes as “essential to the truthseeking function.” See Gardner v. Florida, 430 U.S. at 359, 360, 97 S.Ct. at 1205, 1206.
Because the procedure here challenged poses the risk that death sentences may be affirmed on the basis of inaccurate information and because meaningful appellate review that minimizes rather than enhances such risk is constitutionally mandated in capital cases, I cannot conclude, as the majority seems to, that no significant constitutional problem is raised by petitioner’s claim.
B. Did the Florida Supreme Court Engage in the Practice of Which Petitioner Complains
Two allegations form the basis of Ford’s Gardner claim: (1) that the Florida Supreme Court received nonrecord information about petitioner and other capital defendants; and (2) that the court considered that information in deciding to affirm petitioner’s death sentence. Neither the state court nor the district court has resolved these factual contentions.10 The majority, following the pattern of the Brown court, “assume[s] without deciding” the truth of the first allegation. It ultimately skirts the merits of the claim, however, in essence by finding that the Florida court did not consider nonrecord information in affirming *850petitioner’s sentence. In lieu of evidence to support this finding, it relies on statements in the Brown opinion and invokes a “presumption of regularity.” These factors simply do not substantiate the majority’s finding. Its approach can only be characterized as an attempt to evade the difficult questions presented by petitioner’s claim. In rendering its finding, the majority relies •on three subsidiary “facts”: (1) that Florida law does not permit the state supreme court to rely on nonrecord material in affirming capital sentences; (2) that the Florida court would not have relied on such information in contravention of state law; and (3) that the Florida court’s reading of nonrecord information would not have affected its decisions because the court would have disregarded that material. The following section examines these premises to determine whether they support the majority’s conclusion.
The majority interprets the Florida Supreme Court’s decision in Brown v. Wainwright, supra, to hold that state law prohibits reliance by the supreme court on nonrecord information in affirming capital sentences. It cites language in the Brown opinion stating that such material is “irrelevant [ ] to [its] appellate function in capital cases” and “play[s] no part in [its] sentence review role.” Majority Opinion, supra at 810 (quoting Brown v. Wainwright, 392 So.2d at 1331, 1332). Without examining the analysis underlying the Florida court’s conclusion, the majority accepts these remarks as determinative of the matter, which it characterizes as concerned solely with state law. Although federal courts are bound by decisions of the highest state court in deciding issues of state law, the majority’s adoption of the Brown court’s reasoning raises issues of federal as well as state law. The Florida court’s analysis of its role in capital sentence review conflicts with the interpretation of the state’s sentencing statute rendered by the United States Supreme Court in upholding the statute against constitutional challenge. When state law, as interpreted by the state courts, runs head on with principles of federal constitutional law, our foremost responsibility is to the latter.
In Brown, the Florida court concluded that nonrecord information is “irrelevant” to its decisions by reasoning that its function in reviewing capital sentences is very limited. The court disclaimed performing any evidentiary review function in capital cases.11 This characterization of the appellate court’s role contradicts the Supreme Court’s interpretation of Florida’s capital sentencing statute in Proffitt v. Florida, supra, as requiring the state supreme court to “reviewf ] and reweigh[]” the evidence and “determine independently whether the imposition of the ultimate penalty is warranted.” Proffitt v. Florida, 428 U.S. at 253, 96 S.Ct. at 2967 (citing Songer v. State, 322 So.2d 481, 484 (Fla.1975); Sullivan v. State, 303 So.2d 632, 637 (Fla.1974)). To be sure, it is fully within the Florida Supreme Court’s authority, as the ultimate arbiter of state law, to reject the United States Supreme Court’s interpretation of state law and adopt the view it espouses in Brown. In reinterpreting its review function in capital cases to be substantially different from that the state presented and the United States Supreme Court adopted in Proffitt, however, the state court calls into question the continued vitality of the Proffitt holding that capital sentencing as administered under the Florida system meets the requirements of the eighth amendment. Cf. Gardner v. Florida, 430 U.S. 349, 365-70, 97 S.Ct. 1197, 1208-10, 51 L.Ed.2d 393 (1977) (Marshall J., dissenting) (cursory review by Florida Supreme Court undercuts basis for approval of Florida system in Proffitt). Although the Brown court’s interpretation of its role in reviewing sentences is determinative of that question, if such interpretation was operative at the time of petitioner’s direct appeal I would hold that his *851sentence is invalid because he was not accorded the “meaningful appellate review” to which he is entitled under Proffitt v. Florida, 428 U.S. at 251, 96 S.Ct. at 2966. Accord Gregg v. Georgia, 428 U.S. at 204-06, 96 S.Ct. at 2939-40 (Georgia statute’s appellate review provision ensures imposition of death penalty will not be capricious).
The majority’s reading of the Brown decision as proscribing the use of nonrecord materials in sentence review is undermined by the Brown court’s emphasis on distinguishing this case from Gardner v. Florida, supra. The Brown court devoted a substantial portion of its opinion to the argument that Gardner “presents no impediment” to consideration of nonrecord information at the appellate review, rather than sentence imposition, stage. See Brown v. Wainwright, 392 So.2d at 1333.12 The opinion thus indicates that the Florida courts found no federal constitutional deficiency in the process of reviewing nonrecord information at the appellate stage. Moreover, it implies that the court found no state law barrier to such procedure either because, had it held that state law prevented it from considering nonrecord information, it would have had no reason to decide that such procedure was unobjectionable under federal law. In short, the tenor of the Brown opinion suggests the Florida court discerned no defect in the challenged procedure under either state or federal law and. that this was the primary basis for its rejection of the petitioner’s claim.
The majority concludes, however, that Brown holds Florida law precludes the state supreme court from using nonrecord information in reviewing capital cases. The majority next addresses whether the state court may have used nonrecord information despite this proscription. Answering this query in the negative, the majority relies on (1) what it interprets as an affirmative statement by the Brown court that nonrecord information was not used in reviewing capital sentences; and (2) a presumption of regularity in the state court proceedings. In addition, the majority justifies its decision on the ground that probing further into the matter would require questioning of the Florida Supreme Court justices concerning their mental processes, which procedure is abhorrent in our judicial system.
I disagree with the majority’s view of the Brown opinion as unequivocally denying the use of nonrecord information. The Florida court did not deny that it systematically requested and received nonrecord information concerning capital defendants, see Brown v. Wainwright, 392 So.2d at 1330-31; indeed it expressly stated that it did obtain such information, id. at 1333 n.17. Moreover, the Brown court did not specifically disclaim having used the nonrecord information it admittedly obtained; it said only that such information is “irrelevant” to its decisionmaking in view of the narrow functions it performs in reviewing sentences. Even accepting the limited role the Florida court defined for itself in Brown, it is not inconceivable that in performing that role the court might have taken into consideration nonrecord information that it had before it.13 The court itself conceded as *852much by stating that “[t]he ‘tainted’ information we are charged with reviewing was ... in every instance obtained to deal with newly-articulated procedural standards.” Id. (emphasis added).
As a second basis for concluding the Florida court did not consider nonrecord information, the majority states that federal courts must accord a “presumption of regularity” to the state court proceedings — that is, presume that “the state supreme court follows its own law and procedures.” Majority Opinion, supra at 811. As support for this proposition, the majority cites the federal habeas corpus statute, 28 U.S.C. § 2254(d), and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) — a decision interpreting that provision. I agree that there are circumstances in which it is appropriate for federal courts to engage in such a presumption of regularity with respect to state court decisions, but in my view this case does not present such circumstances. First, the authorities cited by the majority are inapposite.14 Second, the Florida court did not acknowledge that the practice of soliciting and reviewing non-record information is legally objectionable. It distinguished Gardner as inapplicable to appellate decisionmaking, remarked that petitioners’ constitutional claims were “unpersuasive,” Brown v. Wainwright, 392 So.2d at 1331, and throughout the opinion maintained the position that appellate consideration of nonrecord material would not violate petitioners’ rights. The majority presumes that the Florida court did not engage in such practice because in its view to do otherwise would offend the Florida court. Under the Florida court’s own interpretation of the governing legal principles, however, there is no impropriety in examining nonrecord information. See text supra at 850-851. Principles of federalism and comity are not violated by inquiring whether a state court has followed, a procedure that it has declared to be legally sound.
As a final rationalization for the presumption in which it engages, the majority flashes the spectre of calling the state supreme court justices to the witness stand to testify about their mental processes. There is no question that such procedure, though it may be the only means of obtaining direct evidence to support petitioner’s allegations, is barred by prior precedents. See Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193 (1904); United States v. Crouch, 566 F.2d 1311 (5th Cir.1978). I agree that it would be impermissible to conduct this type of factual inquiry; I disagree with the majority that we should uphold the Florida Supreme Court’s practice because of a lack of direct evidence. First, because such evidence is wholly within the state’s control, fairness requires that the state rather than petitioner should suffer the adverse consequences of its absence. Cf. Jencks v. United States, 353 U.S. 657, 670-71, 77 S.Ct. 1007, 1014-15, 1 L.Ed.2d 1103 (1957) (government has duty to insure justice is done and thus may invoke evidentiary privileges to suppress evidence in its possession only at price of release of defendant). Second, although we cannot ask the Florida justices directly whether and for what purpose they may have used non-record information in reviewing Ford’s sentence, we are not faced with a record that is utterly silent on this question.15 Petitioner *853proffered circumstantial evidence that the Florida court solicited and received nonrecord evidence in connection with its review of his sentence. See note 10 supra. In its opinion in Brown, the Florida court admitted requesting and receiving such material in some cases. The court did not specifically deny that it considered this information for some purpose, and the logical implication of its comment that it obtained nonrecord material in order to comply with “newly-articulated procedural standards” is that it also used the material for that purpose. Although the Florida court’s opinion is ambiguous, it raises sufficient indicia that the court considered nonrecord material in reviewing capital sentences to negate any presumption to the contrary. Moreover, the material proffered by petitioner, which the district court should have admitted, together with the Brown opinion, in my view is sufficient to raise a contrary presumption: that petitioner’s rights under Gardner were violated. Hence, only if the state can demonstrate that nonrecord information was not requested, received, or used by the state court in connection with Ford’s case should relief be denied. Otherwise petitioner is entitled to a new appellate review of his sentence by the Florida Supreme Court with full disclosure of the materials it will consider.
II.
Unconstitutional Limitation of Mitigating Circumstances
A. Waiver
Ford contends the trial court’s instructions to the jury on aggravating and mitigating factors violated his right under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), to have the sentencer consider nonstatutory mitigating evidence concerning his character and the circumstances of his offense. The majority rejects this challenge purportedly on the ground that petitioner committed procedural default by failing to object to the instructions at trial and on direct appeal and because he has not established prejudice — the second component of the waiver exception recognized in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In reaching this conclusion, the majority confuses the issue of prejudice with the determination whether the challenged instruction was erroneous and hence decides both the procedural issue and the merits of appellant’s claim. I disagree with the majority’s analysis and resolution of both the waiver and substantive issues. Before discussing my disagreements with the majority, however, I will briefly state the bases for my conclusion that petitioner has established cause for his procedural default, which is the first required element of the Sykes exception to waiver.
1. Cause
In Sykes, the Supreme Court adopted the “cause and prejudice” exception to the waiver rule16 but left for later cases the task of more specifically defining that standard. Wainwright v. Sykes, 433 U.S. at 90-91, 97 S.Ct. at 2508-09.17 In the recent decision of Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court resumed the analysis left incomplete in Sykes and gave more “precise content” *854to the term “cause.” In Engle, the Court addressed an assertion of “cause” similar to that raised by Ford. The defendants in Engle, challenging jury instructions as impermissibly shifting the burden of proof, asserted as “cause” for their failure to object to the instructions at trial that certain cases addressing the constitutionality of burden-shifting instructions had not been decided until after their trials and that therefore they could not have known at the time of trial that their constitutional rights were being violated. The Court did “not decide whether the novelty of a constitutional claim ever establishes cause for a failure to object.”18 It rejected the defendants’ argument, however, because although some of the Court’s relevant cases had postdated defendants’ trials, the decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which “laid the basis for their constitutional claim,” had preceded all of their trials by at least four and one-half years. In the years between Winship and defendants’ trials, many defendants had relied on that case to challenge burden-of-proof rules, and numerous courts had upheld such claims. The Court concluded that in light of this substantial post-Winship litigation, “we cannot say that respondents lacked the tools to construct their constitutional claim." Engle v. Isaac, 456 U.S. 107 at 133, 102 S.Ct. at 1574, 71 L.Ed.2d at 804.
Ford argues his failure to challenge the mitigating circumstances instruction at this sentencing hearing is justified by “cause” under Sykes. He bases this argument on the fact that the Lockett decision on which his constitutional challenge is founded was not decided until four years after his trial.19 Under the analysis developed in Engle we must consider whether, even in the absence of the specific holding of Lockett entitling capital defendants to sentencer consideration of nonstatutory mitigating evidence, there were sufficient precedential tools available at the time of petitioner’s trial on which he reasonably could have constructed his eighth amendment claim.
At the district court habeas hearing, the state urged that petitioner had committed procedural default by failing to object to the instructions at trial or to raise the issue on direct appeal. The district judge, although stating Wainwright v. Sykes controlled, without further elaboration proceeded to rule on the merits of the claim. This can be interpreted as an implicit find*855ing that the cause and prejudice standard was satisfied.19a
The constitutional status of the death penalty has undergone substantial evolution in the last decade, beginning with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman signaled an important change in the law governing sentencing in capital cases.20 In Furman, a majority of the Court reversed a death sentence imposed under a discretionary sentencing statute that provided no standards for determining whether a defendant would be sentenced to life imprisonment or death. The five members of the Furman majority issued separate opinions all concurring in the per curiam holding but each stating different reasoning. As noted subsequently by Chief Justice Burger in Lockett v. Ohio, 438 U.S. 586, 599-600, 98 S.Ct. 2954, 2961-62, 57 L.Ed.2d 973 (1978):
Predictably, the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment. Some States responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases. Other States attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the same time, to comply with Furman, by providing standards to guide the sentencing decision.
In a series of cases decided in 1976 the Supreme Court substantially clarified Fur-man. Addressing the constitutionality of five states’ post-Furman capital-sentencing statutes, the Court upheld those statutes that provided for individualized sentencing but channelled sentencer discretion by means of legislatively defined sentencing criteria, see Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (opinion of Powell, Stewart & Stevens, JJ.); id. at 260-61, 96 S.Ct. at 2970 (White & Rehnquist, JJ. & Burger, C.J., concurring); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Powell, Stewart & Stevens, JJ.); id. at 220-22, 96 S.Ct. at 2947-48 (White & Rehnquist, JJ. & Burger, C.J., concurring); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (opinion of Powell, Stewart & Stevens, JJ., concurring); id. at 279, 96 S.Ct. at 2959 (White & Rehnquist, JJ. & Burger, C.J., concurring), and invalidated those that eliminated sentencer discretion entirely by making the death penalty mandatory in certain classes of cases, see Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Although the opinions in Furman had focused on limiting the discretion of judges and jurors deciding whether to impose the death penalty, see Furman v. Georgia, 408 U.S. at 248-49 & n. *85611, 253-57, 92 S.Ct. at 2731 & n. 11, 2733-36 (Douglas, J., concurring); id. at 309-10, 92 S.Ct. at 2762 (Stewart, J., concurring); id. at 313-14, 92 S.Ct. at 2764 (White, J., concurring); id. at 365, 92 S.Ct. at 2790 (Marshall, J., concurring); see also id. at 398-99, 92 S.Ct. at 2808-09 (Burger, C.J., dissenting), the 1976 cases rejected an interpretation of Furman as rejecting all discretion in sentencing and reaffirmed the practice of individualized decisionmaking at the sentencing stage. See Woodson v. North Carolina, 428 U.S. at 303-05, 96 S.Ct. at 2990-91 (plurality opinion); Roberts v. Louisiana, 428 U.S. at 333-36, 96 S.Ct. at 3006-3007 (plurality opinion). In Lockett v. Ohio, supra, the Court further extended the requirement of individualized sentencing, establishing a constitutional requirement in capital cases that the sentencing authority consider all mitigating evidence proffered by the defendant relating to his character, record, and the circumstances of the particular offense.
Lockett, which had its roots in the Wood-son and ■ Roberts cases, unambiguously states that the Constitution compels the sentencer to consider all relevant mitigating evidence proffered by the defendant. That rule was in no way foreshadowed by Furman, however, which is the only one of the Supreme Court’s contemporary death-penalty cases that had been decided at the time of petitioner’s trial.21 Because Fur-man was a major reversal of the principles articulated in previous cases challenging the death penalty and because no two of the concurring justices agreed on a rationale for the ruling in that case, the state of the constitutional law governing capital sentencing at the time of petitioner’s trial can only be characterized as one of uncertainty and confusion. More importantly, the focus of the concurring opinions in Furman and the one aspect of its holding as to which everyone agreed was its condemnation of unlimited discretion in capital sentencing.22 Probably the most logical, albeit incorrect, inference to be drawn from this unifying theme in the Furman opinions was that the decision required sentencers’ consideration of both aggravating and mitigating evidence in capital cases to be based on narrowly defined statutory criteria.23 The subsequent contrary holding of the Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) does not undermine this assessment of the state of the law before that case was decided; even the plurality in Lockett recognized its decision was not foreshadowed by Furman. See note 23 supra. See also Lockett v. Ohio, 438 U.S. at 622, 98 S.Ct. at 2973 (White, J., concurring in part and dissenting in part) (Court in Lockett has “completed [an] about-face since Furman v. Georgia ”); id. at 628-29, 631-32, 98 S.Ct. at 2973-74, 2975 (Rehnquist, J., concurring in part and dissenting in part) (“it can scarcely be maintained that today’s decision is the logical application of a coherent doctrine first espoused by the opinions leading to the Court’s judgment in Furman”); Murchison, Toward a Perspective on the Death Penalty Cases, 27 Emory L.J. 469, 545 (1978); Recent Development, New Direction for *857Capital Sentencing or an About-Face for the Supreme Court?— Lockett v. Ohio, 16 Am.Crim.L.Rev. 317, 318, 328-30 & n. 148 (1979); The Supreme Court, 1977 Term, 92 Harv.L.Rev. 57, 99-100, 105-08 (1978); Recent Cases, Sentencer Must Have Some Discretion in Imposing Capital Punishment: Another Retreat from Furman v. Georgia, 44 Mo.L.Rev. 359, 365 (1979).24 Nor, for that matter, was the Lockett holding anticipated by decisions of the Florida Supreme Court rendered prior to appellant’s trial. Although the Florida Legislature’s enactment in 1972 of a new capital sentencing statute went far in clarifying the meaning of Furman, at least as that decision was to be interpreted under Florida law,25 the statute itself was barely a year old at the time of appellant’s trial, and few cases had yet interpreted it or considered its constitutionality. If one can glean from the ]aw existing at the time of appellant’s trial any suggestion as to the scope of admissible mitigating evidence, it is that the Florida statute limited such evidence to that relevant to the enumerated mitigating factors.26 Indeed the Florida Supreme Court’s opinion affirming appellant’s sentence re-*858fleets the view that the sentencer’s role is limited by the statutory criteria.27
In short, review of the case law existing at the time of Ford’s trial leads to the inescapable conclusion not only that the Lockett decision was not presaged by the precedents but that a rule contrary to that eventually established in Lockett was strongly suggested by those decisions. Indeed, in 1974 counsel would have to have been blessed with “extraordinary vision” to have anticipated that the Supreme Court would establish the broad right to sentencer consideration of mitigating evidence sanctioned in Lockett. Engle indicates that counsel is not expected to possess such prophetic powers.28 Because at the time of Ford’s trial the “tools to construct [his] constitutional claim” were unavailable, see Engle v. Isaac, 456 U.S. at 133, 102 S.Ct. at 1574, 71 L.Ed.2d at 804, his failure to object to the mitigating circumstances instructions at the sentencing hearing was justified by cause within the meaning of Wainwright v. Sykes, supra. Further, as established in Lockett and discussed infra under ‘Prejudice,’ the preclusion of consideration of mitigating evidence “render[s] the [sentencing proceeding] fundamentally unfair.” Engle v. Isaac, 456 U.S. at 131, 102 S.Ct. at 1573, 71 L.Ed. at 802.
2. Prejudice
The majority holds that Ford was not prejudiced by the jury instructions on mitigating circumstances. It states four bases for this conclusion. Three of these bases concern whether the instruction operated to preclude the jury from considering nonstatutory mitigating evidence and thus directly address the merits of petitioner’s claim. To the extent the majority subsumes its analysis of the merits within its discussion of prejudice, it confuses two issues that should be treated separately. The notion of prejudice under the Sykes exception to waiver refers to the harm, if any, stemming from a constitutional violation. Because prejudice is thus defined as a product of constitutional error, determining the existence of prejudice might seem to require a preliminary inquiry into whether the error asserted has been committed. Logical though this approach might seem, however, it is not the correct analysis. For prejudice, in this context, is a component of the procedural question whether a habeas petitioner has waived his right to raise a constitutional issue in federal court. As such, prejudice is an issue that, along with the other components of the waiver analysis, must be determined prerequisite to deciding the merits of the substantive constitutional claim. If the federal court determines that the petitioner has waived his claim and either the cause or prejudice element of the exception to waiver is lacking, it must, in the interests of finality and deference to the state courts, *859decline to adjudicate the merits of the constitutional claim. Wainwright v. Sykes, supra. In order to decide whether prejudice exists before deciding the merits of the claim in question, the court must assume, for purposes of resolving the prejudice issue, that constitutional error has been committed.29 Approaching the prejudice issue from this perspective narrows the inquiry. The court need not resolve at this juncture whether the petitioner has shown a deprivation of constitutional right that has in turn caused him harm; rather the court should assume that a constitutional violation occurred and decide only whether such violation worked to “[the petitioner’s] actual and substantial disadvantage,” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982) (emphasis the Court’s).30 If the record reveals actual prejudice, then, and only then, should the court decide whether constitutional error occurred. As the Supreme Court has stated, this approach, which avoids deciding issues not fairly presented to the state courts, minimizes federal intrusion into the states’ criminal adjudication systems and encourages state courts to take seriously their federal constitutional responsibilities. Engle v. Isaac, 456 U.S. at 128, 129, 102 S.Ct. at 1571, 1572, 71 L.Ed.2d at 800, 801.
Applying this approach to the instant case, we must assume for the moment that petitioner has established a constitutional violation, i.e., that the jury instructions reasonably could have been interpreted to limit consideration of mitigating evidence to that falling within the statutory mitigating factors. See Washington v. Watkins, 655 F.2d 1346, 1369 (5th Cir.1981). Assuming such error did occur, we must determine whether actual prejudice resulted.
The majority cites two factors in support of its conclusion that petitioner was not prejudiced by the mitigating circumstances instructions: (1) that the trial judge did not prevent the defense attorney from introducing evidence of nonstatutory mitigating factors, and (2) that defense counsel referred to such evidence in his closing argument.31 In Washington v. Watkins, supra, the former Fifth Circuit rejected both of these factors as bases for holding a Lockett *860error harmless.32 Addressing the contention that admission of nonstatutory mitigating evidence averted the harm from an erroneous mitigating circumstances instruction, the Washington court stated:
[This argument] completely miss[es] the point of the Supreme Court’s holding in Lockett. Sandra Lockett also introduced evidence of nonstatutory mitigating factors, and also argued their relevance to the sentencer. The fatal flaw in Lockett was not the exclusion of evidence relating to nonstatutory mitigating factors, but the limitation on the sentencer’s consideration of that evidence except as it related to the statutory mitigating factors.
Id. at 1375. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) further refutes the majority’s position. In that case the defense attorney had introduced extensive nonstatutory mitigating evidence at the sentencing hearing. See id. at 108 & n.2, 102 S.Ct. at 873 & n.2, 71 L.Ed.2d at 6 & n.2. The trial judge in sentencing the defendant refused to consider that evidence, however, because he interpreted the sentencing statute as precluding consideration of nonstatutory factors. Id. at 108, 112-115, 102 S.Ct. at 873, 875-876, 71 L.Ed.2d at 7, 9-10. The Supreme Court reversed the sentence despite the fact that the Oklahoma statute permitted the defendant to present any mitigating evidence and that the judge had in fact admitted nonstatutory evidence. Id. at 106, 115 & n.10, 102 S.Ct. at 872, 876 & n.10, 71 L.Ed.2d at 6, 11 & n.10. The Court held that the trial court’s refusal to consider the evidence violated Lockett, reasoning:
Just as the state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer, refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.
Id. at 113-115, 102 S.Ct. at 875-876, 71 L.Ed. at 10-11. The argument advanced by the majority that admission of nonstatutory evidence renders a Lockett violation harmless cannot be reconciled with the holdings in Lockett, Eddings and Washington.
The majority’s reliance on the fact that defense counsel referred to the nonstatutory mitigating evidence in his arguments before the jury also conflicts with Washington.
As the Supreme Court has noted in a related context, “arguments of counsel cannot substitute for instructions by the court.” Taylor v. Kentucky, 436 U.S. 478, 488-89, 98 S.Ct. 1930, 1936-37, 56 L.Ed.2d 468 (1978) (concluding that trial court’s omission of instruction on presumption of innocence was not remedied by defense counsel’s explanation of the presumption in opening and closing argument). Only an instruction from the trial court can invest a particular concept — here the jury’s ability to consider nonstatutory mitigating factors — with the authority of the court. See id. at 489, 98 S.Ct. at 1936-37. Indeed, were a jury to consider nonstatutory mitigating factors despite instructions by the court to the effect that it was duty-bound to consider only the two statutory mitigating circumstances, it would be acting “lawlessly,” see Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990 (opinion of Stewart, Powell, and Stevens). “There is an element of capriciousness in making the jurors’ power to avoid the death penalty dependent on their willingness to accept [an] invitation to disregard the trial *861judge’s instructions.” Roberts v. Louisiana, 428 U.S. 325, 335, 96 S.Ct. 3001, 3007, 49 L.Ed.2d 974 (1976) (opinion of Stewart, Powell, and Stevens).
Washington v. Watkins, 655 F.2d at 1375 (emphasis added). See also Bell v. Ohio, 438 U.S. 637, 641-43, 98 S.Ct. 2977, 2980-81, 57 L.Ed.2d 1010 (1978) (reversing death sentence even though defendant had argued nonstatutory mitigating factors justified penalty less than death where sentencing judges believed they were limited to statutory mitigating factors).
Lastly, no contention can be made that petitioner failed to present any significant nonstatutory mitigating evidence. Several witnesses testified on his behalf at the sentencing hearing. Ford’s mother testified that his father had been a belligerent alcoholic during his childhood. She described petitioner’s efforts, as a boy, to assume paternal responsibilities toward his younger siblings, including working during high school and after graduation to provide financial support for the family. A psychiatrist testified that Ford was bright and an overachiever but that he suffered from a type of brain damage known as Dyslexia, which results in a difficulty working with numbers. The psychiatrist described Ford’s generally successful endeavors in his employment, which were subsequently thwarted when a promotion placed him in a position requiring mathematical computations. In the psychiatrist’s view, Ford’s actions in committing the robbery and murder stemmed from intense depression and frustration related to his disability rather than from a lack of moral standards. The psychiatrist stated that he believed petitioner could be rehabilitated. Because petitioner has demonstrated a substantial likelihood that the jury’s misunderstanding of its responsibility to consider nonstatutory mitigating evidence critically affected its sentencing decision, I would hold that he has established actual prejudice under Frady and Sykes entitling him to an adjudication of the merits of his Lockett claim.
B. Merits
The majority states three reasons for holding that the mitigating circumstances instructions did not violate the rule of Lockett, none of which are persuasive. The majority recognizes that the standard of review governing constitutional challenges to jury instructions requires the court to determine “the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979) (emphasis added). Yet it relies on a “narrow parsing of language”33 — the omission of the word “only” from the mitigating factors instruction, as compared with its inclusion in the aggravating factors instruction — in concluding that the jurors could not have believed they were limited to the statutory mitigating factors.34 I am aware *862that a plurality of the United States Supreme Court interpreted the similar language of Florida’s sentencing statute35 as not precluding consideration of nonstatutory mitigating factors. See Proffitt v. Florida, 428 U.S. at 250 n.8, 96 S.Ct. at 2965 n. 8. See also Lockett v. Ohio, 438 U.S. at 606, 98 S.Ct. at 2965. The Florida Supreme Court, interpreting the same statutory provision, arrived at the opposite conclusion, however. See Cooper v. State, 336 So.2d 1133, 1139 & n.7 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). See also notes 26-27 and accompanying text supra. If judges reasonably differed on the meaning of the provision, surely rational jurors likewise could have arrived at opposing interpretations. Moreover, even had the courts agreed on the meaning of the statute, the subtle nuances of statutory language on which judicial construction of legislative enactments so often turns are simply inadequate bases for discerning the possible understanding of jurors, who are less familiar with such legal niceties. Moreover, the former Fifth Circuit, in Washington v. Watkins, 655 F.2d at 1370 & nn.45-46, rejected an argument identical to that now espoused by the majority.36 Although the majority purports to *863distinguish Washington on other grounds, its reasoning directly contravenes that of the Washington court.
The instructions given to the jury in this case were identical in most critical respects to those held invalid in Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981). See notes 34 and 36 supra. The majority attempts to distinguish Washington on the basis of (1) the concluding reference by the trial judge in Washington to “the preceding elements of mitigation” and (2) the fact that the charge here listed all the statutory elements of mitigation whereas in Washington the judge listed only two of the statutory factors. The majority’s reliance on the “preceding elements” language is misplaced. While it is true that the Washington court found that language “further supported” the inference that the enumerated factors were the sole factors to be considered by the jury, id. at 1370, the court concluded that “a reasonable juror might well infer” the listed factors were exclusive from the judge’s use of the term “only” with respect to aggravating factors and from the immediately following “almost exactly parallel[]” language pertaining to mitigating circumstances. These two features of the judge’s instruction alone would have supported such inference. See id. The “preceding elements” language present in Washington was supportive, but clearly not the decisive factor in the court’s decision. Id. Nor does the trial judge’s enumeration of all the statutory mitigating factors here in comparison with two listed in Washington provide a basis for distinguishing the two cases. We are concerned solely with whether the jury reasonably may have believed it was limited to considering mitigating evidence that fit within the statutorily enumerated factors. Whether the instructions set forth two, five, or a dozen statutory factors has no bearing on the jury’s understanding of the defendant’s right under Lockett to have it consider nonstatutory factors as well. At petitioner’s sentencing hearing, as in Washington’s and Lockett’s, his attorney presented evidence concerning his character and background. “[N]owhere in the trial court’s charge to the jury in the sentencing phase of [petitioner’s] trial is there any explicit instruction that the jury was free to consider mitigating factors other than [those enumerated in the statute],” however. Washington v. Watkins, 655 F.2d at 1365. In Washington, the court found that no language in the charge rectified the absence of such an instruction by indicating to a reasonable jury that it was not limited to the statutory factors. The court reached this conclusion despite the trial judge’s prefatory instruction that in reaching its decision the jury “must obviously consider the detailed circumstances of the offense for which the defendant was convicted and the defendant himself.” Id. at 1369-70. Here there was lacking even the vague reference to the defendant’s character and circumstances that was present in the Washington case. See note 34 supra. Thus, the instructions given in petitioner’s sentencing hearing were even less likely to effectuate petitioner’s right to have the jury consider evidence of his character and background than *864the instructions invalidated in Washington.37
Finally, the majority ascribes great significance to the sentencing judge’s finding that “[tjhere are no mitigating circumstances existing — either statutory or otherwise— which outweigh any aggravating circumstances.” Majority Opinion, supra at 813 (quoting Trial Court Findings on Sentencing, reprinted in Ford v. State, 374 So.2d 496, 500-02 n.1 (Fla.1979)). From this four-word phrase buried in the middle of the trial judge’s detailed findings concerning the statutory mitigating and aggravating factors, the majority discerns not only an understanding on the part of the judge that nonstatutory mitigating evidence was relevant; the majority additionally “conclude[s]” from these words that the “judge’s perception of what could be considered was conveyed to the jury.” Majority Opinion, supra at 813 (emphasis added). With all due respect, I am unable to follow the majority’s reasoning. It has always been my understanding that jury instructions, not trial court findings, serve the function of informing the jury of the law. For the reasons stated above, I do not believe the instructions in this case adequately informed the jury of its duty to consider nonstatutory mitigating evidence.
III.
Effect of Florida Supreme Court’s Overruling of Aggravating Circumstances Found by Trial Court
Under Florida’s capital sentencing statute, Fla.Stat.Ann. § 921.141 (West Supp. 1982), the judge’s task in deciding whether to impose the death sentence entails several steps. The judge must first determine whether any of the statutory aggravating factors exist. Id. § 921.141(3), (5). He must “weigh” any aggravating factors found to exist and determine whether they are “sufficient” to impose the death penalty. See id. § 921.141(3). If he finds there are “sufficient aggravating factors,” he must then inquire whether sufficient mitigating factors exist to outweigh the aggravating factors. Id.
In Ford’s case, the trial judge found that all eight of the statutory aggravating factors 38 and none of the mitigating ones were *865present and sentenced appellant to death. In his written findings the judge stated that aggravating factor (a) (defendant under sentence of imprisonment at time capital felony committed) was established because “[although the defendant was not imprisoned at the time of the murder, he did actually prevent arrest, prosecution and imprisonment for his other crime, at least temporarily, by the very murder for which he has been convicted.” Trial Court’s Findings on Sentence, reprinted in Ford v. State, 374 So.2d at 499-501 n.1. He specifically concluded that this aggravating circumstance “justifies a sentence of death.” Id. The judge found that aggravating factor (b) (defendant previously convicted of another capital felony or felony involving violence to person) was present because
[T]he defendant has been found guilty of breaking and entering to commit a felony, which would obviously involve the threat of violence to the person of anyone whom he might have confronted on the premises. Further, he has admitted the unlawful sale of narcotic drugs, which likewise involves a threat to the safety of members of the public.
Id. He concluded that this factor also “justifies the imposition of the sentence of death.” Id. Of the six other aggravating factors the judge found, he did not specifically state that any one of them justified the death sentence.39
On appeal, the Florida Supreme Court held the trial court incorrectly found that aggravating factors (a) and (b) were established. Ford v. State, 374 So.2d at 502. The Florida Supreme Court stated only that the trial court had “erred,” but its basis for so holding was obviously the fact that the evidence cited by the trial court in support of factors (a) and (b) did not conform to the terms of the statute. See Peek v. State, 395 So.2d 492, 499 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981) (factor (a) requires that defendant have been incarcerated pursuant to prison sentence at time of offense); Provence v. State, 337 So.2d 783, 786 (Fla.1976) (factor (b) requires actual prior conviction). The Florida Supreme Court also rejected the trial court’s findings that aggravating factors (d) (homicide committed while defendant engaged in attempted robbery) and (f) (homicide committed for pecuniary gain) were both present because the evidence used to support each was the same. The court held that these should have been viewed as a single aggravating factor. Ford v. State, 374 So.2d at 502-03. Although the Florida Supreme Court thus eliminated three of the aggravating factors relied on by the trial judge, it affirmed Ford’s sentence on the ground that “five aggravating circumstances may properly be said to exist in this case” and, “there being no mitigating factors present death is presumed to be the appropriate penalty.” Id. at 503.
As the majority notes, in Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981), vacated on other grounds,-U.S.-, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982), judgment reinstated on remand, 686 F.2d 311 (5th Cir.1982)40 and Stephens v. Zant, 631 F.2d 397 *866(5th Cir.1980), reh. denied and modified, 648 F.2d 446 (5th Cir.1981), certified to Supreme Court of Georgia, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982),41 the former Fifth Circuit held that resentencing was required where the sentencer had considered, respectively, nonstatutory aggravating factors and aggravating factors determined to be unconstitutionally vague. The majority distinguishes those cases, however, on the ground that the trial judge’s errors in this case, which it characterizes as evidentiary insufficiency and multiple consideration of one aspect of Ford’s offense, do not involve “consider[ation] [of] any extraneous or improper evidence.” Majority Opinion, supra at 814. I disagree with the majority’s position for two reasons.
First, the majority’s premise — that the trial judge did not consider any improper evidence in deciding what sentence to impose — is incorrect. The evidence cited by the trial judge in support of aggravating factors (a) and (b) was irrelevant, to those criteria. Moreover, at least some of that evidence was irrelevant to any of the aggravating circumstances enumerated in § 921.141(5).42 The fact that such evidence may have been properly admitted at the guilt phase of trial did not give the judge license to consider it as a basis for imposing the death sentence. Only those factors spe*867cifically delineated in the statute may be considered in the sentencing process, and reliance on information irrelevant to those factors, whether or not properly before the sentencer for other purposes, violates the defendant’s right to channelled sentencer discretion under Furman v. Georgia, 408 U.S. 288, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Nor does the trial judge’s attempt to fit these square pegs of fact into the round holes of the statutory criteria rectify his error. His consideration of these facts was no less a departure from the legislative guidelines than the complete disregard for the limits imposed by the statutory factors committed by the sentencer in Henry.
Second, even if all the evidence considered by the trial judge in imposing sentence was relevant to some of the statutory aggravating criteria, the judge’s reliance on an incorrect legal theory in determining petitioner’s sentence renders the sentence invalid. The cases are legion that have reversed criminal convictions where the jury was permitted to consider an improper legal theory. Even where a general verdict renders impossible the determination whether the jury in fact relied on the improper theory, a conviction possibly predicated on such mistaken interpretation of the law will not stand. Bachellar v. Maryland, 397 U.S. 564, 570-71, 90 S.Ct. 1312, 1315-16, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 585-88, 89 S.Ct. 1354, 1362-64, 22 L.Ed.2d 572 (1969); Yates v. United States, 354 U.S. 298, 311-12, 77 S.Ct. 1064, 1072-73, 1 L.Ed.2d 1356 (1957); Terminiello v. Chicago, 337 U.S. 1, 6, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949); Cramer v. United States, 325 U.S. 1, 36 n.45, 65 S.Ct. 918, 935 n.45, 89 L.Ed. 1441 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 1055-56, 64 S.Ct. 921, 927, 88 L.Ed. 1192 (1944); Williams v. North Carolina, 317 U.S. 287, 291-92, 63 S.Ct. 207, 209-10, 87 L.Ed. 279 (1942); Stromberg v. California, 283 U.S. 359, 369-70, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931). Here there is no uncertainty. It is clear from the trial judge’s findings that he based his sentence at least in part on (1) evidence that did not comprise two of the aggravating factors he cited and (2) two aggravating circumstances that were based on the same facts and were therefore cumulative. Had these factors constituted the sole aggravating circumstances found by the judge, there is little question that the sentence would have been invalid under both state and federal law.43 Hence, the only remaining question is whether the judge’s partial reliance on improper aggravating factors can be viewed as harmless in view of the five valid aggravating factors he found. The Florida Supreme Court answered this question in the affirmative, stating that where some aggravating factors and no mitigating factors44 are found *868death is “presumed to be the appropriate penalty.” This statement, which the majority adopts, is susceptible of either of two interpretations. Neither in my view provides a constitutional basis for affirming a sentence partly predicated on improper aggravating factors.
The state court’s remark that where some aggravating and no mitigating factors are present “death is presumed appropriate” could be understood to mean that the initial sentencer must impose the death penalty if it finds any aggravating and no mitigating factors. An alternative interpretation is that the appellate court is engaging in a presumption, for review purposes, that when the initial sentencer has found some aggravating factors and no mitigating ones it would have imposed the death sentence even if it had not considered the erroneous aggravating factors. See Zant v. Stephens, 456 U.S. 410, 415, 102 S.Ct. 1856, 1858, 72 L.Ed.2d 222, 227 (1982). I would be hesitant to attribute to the Florida court the first interpretation of the statute, which would make the death penalty mandatory in all cases in which some aggravating and no mitigating factors are found. The statutory language does not support this interpretation. It requires both the advisory jury and the sentencing judge initially to determine “[w]hether sufficient aggravating circumstances exist as enumerated in subsection (5) [of the statute].” Fla. Stat.Ann. § 921.141(2), (3) (West Supp. 1982). Only after finding that there are “sufficient” aggravating factors are the jury and judge instructed to address mitigating factors. Id. The statutory language thus suggests that death is appropriate only where the sentencers make an individualized judgment that the aggravating factors they have identified are sufficiently grave to justify that punishment. Another reason I would not attribute this interpretation of the statute to the Florida Court is that the statute as so interpreted would pose significant constitutional questions. The Supreme Court has held that capital sentencing schemes may not, consistently with eighth amendment principles, eliminate all sentencer discretion by making the death sentence mandatory for certain statutorily defined categories of offenses. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Moreover, the Court has recently reaffirmed the importance of individualized sentencing by holding that the scope of mitigating evidence a defendant may proffer on his own behalf may not be unduly curtailed by statute. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Making the death sentence mandatory in all cases where some aggravating and no mitigating factors are present would not curtail sentencer discretion to the same degree as the statutes condemned in Wood-son and Roberts, nor in the same manner as the statute invalidated in Lockett. Nonetheless such a law would prevent sentencers from declining to impose the death sentence in many cases where the particular facts, though technically within the statutory aggravating criteria, do not in the sentencer’s judgment present sufficient indicia of malice, dangerousness, or other evil to justify the ultimate punishment. Whether such a restriction on sentencer discretion is constitutional may soon be decided by the Supreme Court. See Zant v. Stephens, supra. I will not attempt to predict the holding of the Court on this issue. Suffice it to say that the constitutional difficulties presented by this interpretation of the Florida statute are significant enough that we should not attribute such interpretation to the state court without a clear statement to that effect on its part.45 Cf. id. (certifying case *869to Supreme Court of Georgia for description of state law premises of similar statement by Georgia court).
If the Florida court’s statement is interpreted as a presumption to be applied at the review stage that death is appropriate whenever the sentencer has found some aggravating and no mitigating factors, such state law rule also suffers a constitutional infirmity. As I have already noted, see text supra at 848, meaningful appellate review is a constitutionally required element of capital sentencing schemes. Engaging in the presumption just described falls far short of the type of review that will ensure rationality and consistency in sentencing. Where a judge or jury disregards or misinterprets the procedures or criteria established by the state’s sentencing scheme, the regularity and objectivity in sentencing that the statute is designed to accomplish is defeated. Once such an error has been made, however, there are different possible approaches to correcting it. As the former Fifth Circuit recognized in Henry v. Wainwright, supra and Stephens v. Zant, supra, not all such approaches meet the requirements of the eighth amendment. Superimposing on defective sentencing a review procedure under which the appellate court, having identified the sentencer’s error, then speculates or presumes what the sentencer would have done had the error not been made compounds rather than resolves the problem and is clearly inconsistent with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The Supreme Court also has recognized the infirmity of such a review process. Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam) (imposition of death sentence violated due process where state supreme court rejected jury’s grounds for sentence but affirmed sentence on ground that evidence supported theory not relied on by jury); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (state supreme court’s affirmance of convictions on basis of statutory provision other than that to which proof was directed at trial deprived defendant of due process). Cf. Eddings v. Oklahoma, 455 U.S. 104, 117-19, 102 S.Ct. 869, 877-79, 71 L.Ed.2d 1, 13-14 (1982) (O’Connor, J., concurring) (where it appears trial judge believed he could not consider mitigating evidence, Court will not speculate as to whether he did consider it but found it insufficient; “ Woodson [v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)] and Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the court”).
Presnell v. Georgia establishes that a fundamental element of due process of law is the right to be sentenced by the trial level trier of fact who has heard the proof. “ ‘To conform to due process of law, petitioner[ ] [was] entitled to have the validity of [his] [sentence] appraised on consideration of the case as it was tried and as the issues were determined in the trial court.’ ” Presnell, 439 U.S. at 16, 99 S.Ct. at 236, quoting Cole v. Arkansas, 333 U.S. 196, 202, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). Indeed, the law has appeared clear that “only the trier of fact may impose a death sentence.” Willis v. Balkcom, 451 U.S. 926, 101 S.Ct. 2003, 68 L.Ed.2d 315 (1981) (Marshall, Brennan & Stewart, JJ., dissenting from denial of certiorari). If the trial court declines to im*870pose the death penalty, the appellate court constitutionally could not impose the death sentence on its own initiative on appeal. The same logic requires that the death penalty be affirmed only for the reasons on which the trial court relied in imposing the sentence. Presnell v. Georgia, 439 U.S. at 15-16, 99 S.Ct. at 235-36. Whether or not the appellate court perceives that the ultimate penalty could have been imposed on less than all the circumstances presented to the lower court, the appellate court is not empowered to impose the death sentence on the basis of those lesser circumstances. The crucial question in reviewing a death sentence when some of the circumstances relied on by the lower court are invalidated is not whether the trier of fact constitutionally could have, but whether it would have imposed the death penalty on the basis of those lesser circumstances. Because the question of what the trier of fact would have done can not be answered by an appellate body in any consistent and reliable manner but only through pure speculation, in these circumstances affirmance of the death penalty by the appellate court violates the reliability and consistency requirements of the eighth amendment. See, e.g., Eddings v. Oklahoma, 455 U.S. at 117-19, 102 S.Ct. at 877-879, 71 L.Ed.2d at 12, 13-14 (O’Connor, J., concurring); Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964 (plurality opinion); Gardner v. Florida, 430 U.S. at 359-60, 97 S.Ct. at 1205-06 (opinion of Powell, Stewart & Stevens, JJ.); id. at 363-64, 97 S.Ct. at 1207 (White, J., concurring); Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991 (opinion of Powell, Stewart & Stevens, JJ.); Gregg v. Georgia, 428 U.S. at 188, 96 S.Ct. at 2932 (opinion of Powell, Stewart & Stevens, JJ.); id. at 207, 220-24, 96 S.Ct. at 2941, 2947-49 (White & Rehnquist, JJ. & Burger, C.J., concurring); Jurek v. Texas, 428 U.S. at 276, 96 S.Ct. at 2958 (opinion of Powell, Stewart & Stevens, JJ.); id. at 277, 278-79, 96 S.Ct. at 2958, 2959-60 (White & Rehnquist, JJ. & Burger, C.J., concurring); Proffitt v. Florida, 428 U.S. at 252-53, 258-59, 96 S.Ct. at 2966-67, 2969-70 (opinion of Powell, Stewart & Stevens, JJ.); id. at 260-61, 96 S.Ct. at 2970 (White & Rehnquist, JJ. & Burger, C.J., concurring); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
When it is found on appellate review that any of the aggravating factors on which the trial court relied in initially imposing the death sentence are invalid, the appellate court has no method by which to determine whether those factors were the ones to tip the initial sentencer’s decision in favor of the death penalty. Even when only one circumstance is invalidated on appeal a reviewing court is not equipped to judge the actual significance to a trial judge or jury of that one, now invalid, factor. To speculate as to the degree of significance violates not only the mandate of the eighth amendment as interpreted in Furman and its progeny but also the due process right actually to be sentenced by the trial level judge or jury. Presnell v. Georgia, 439 U.S. at 16, 99 S.Ct. at 236.
The posture of this case is identical to, and therefore poses the same problem raised by, Henry and Stephens. As the majority points out, the trial courts’ errors with respect to aggravating factors in Henry and Stephens were different than those involved here. In my view the difference is not significant. See text supra at 865-866. Moreover, the decisions in Henry and Stephens to remand for resentencing were not predicated on the nature of the trial courts’ errors. Rather, the courts in those cases were concerned with the procedural regularity in capital sentencing that Furman held is mandated by the eighth amendment. The Fifth Circuit's resolution of the Henry and Stephens cases was based directly on the requirement of Furman that juries’ discretion in capital sentencing be guided by objective and rationally reviewable standards. In both of those cases the state appellate courts had found valid aggravating circumstances in addition to unconstitutional ones, and no mitigating factors were present. The Fifth Circuit refused to affirm the death sentences on the basis of the valid aggravating factors, however. It reasoned that even though the juries could rationally have recommended the death sen*871tence on the basis of the permissible factors they had considered, there was no way for the court retrospectively to determine whether they would in fact have done so had they been properly instructed. An attempt to second-guess the jury, in the court’s view, was not the proper role of the reviewing court but was “the antithesis of the rational review of the jury’s application of clear and objective standards contemplated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and its progeny.”46
By attempting to distinguish this case from Henry and Stephens the majority confuses the requirement of Furman that capital sentencing be structured by procedures and criteria that are rationally reviewable with the requirements of other cases imposing substantive constitutional limitations on such criteria.47 I do not suggest that every question of statutory interpretation involving capital sentencing criteria necessarily implicates the Federal Constitution. On the contrary, it is the procedure here employed by the state court, and not its substantive decision, that in my view raises a constitutional issue.
The Supreme Court recently has granted certiorari in Barclay v. Florida, 411 So.2d 1310 (Fla.1982), cert. granted, - U.S. -, 103 S.Ct. 340, 74 L.Ed.2d 382 (1982), on the question of whether consideration of a nonstatutory aggravating circumstance and aggravating factors allegedly unsupported by the evidence requires resentencing. In my view this court should defer decision of petitioner’s aggravating circumstances claim pending the Supreme Court decisions in Stephens and in Barclay. Barring a contrary ruling by the Court in these cases, I would hold that the rational review requirement of Furman compels resentencing in instances, such as this one, in which the sentencer has misapplied the state’s capital sentencing criteria.
Conclusion
Petitioner’s eighth and fourteenth amendment rights have been violated by the Florida Supreme Court’s consideration of nonrecord information and the trial court’s erroneous instructions on mitigating circumstances. The trial court’s reliance on improper evidence and legal theories in support of aggravating circumstances also violated his constitutional rights and may compel resentencing. See note 41 supra. Ac*872cordingly, subject only to the Supreme Court’s decisions in Stephens and Barclay, I would remand this case to the district court with insti’uctions to issue the writ of habeas corpus unless the state court grants petitioner a new sentencing proceeding followed by meaningful review in the state supreme court based solely on evidence in the record.
. Additionally, I have reservations that Fed.R. App.P. 42(b) can be interpreted to preclude appellant’s effort to dismiss his appeal. Rule 42(b) can be interpreted as giving an appellant the right to dismiss an appeal subject only to terms properly fixed by the court or the parties. In my view, no such terms are in force here. I question whether a timeliness restriction is a term that can be “fixed by the court,” particularly subsequent to the filing of the motion to dismiss. Furthermore, there is a possible Article III case or controversy problem, going to the heart of our power to issue this opinion, which is raised by appellant’s effort to dismiss his appeal. See, e.g., United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980), quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973) (“ ‘requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)’ ”). This issue deserves more thorough consideration.
. In Part VI, the majority addresses petitioner’s claim that the Florida Supreme Court failed to apply a consistent standard of review in affirming the trial court’s findings on aggravating and mitigating factors. Having reviewed petitioner’s claim, I agree with the majority that the Florida Supreme Court’s affirmance of these findings was consistent with its prior decisions and was not arbitrary, capricious, or otherwise in violation of petitioner’s eighth amendment rights. Although I am in basic agreement with the majority’s reasoning on this issue, one point needs clarification. The majority’s statement that federal courts “will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court,” Majority Opinion, supra at 819 (citing Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)), correctly articulates the fundamental principle that federal courts do not sit to review state courts’ decisions on matters of state law. This statement should not be understood to deny the federal courts *845authority to review state courts’ application of capital sentencing criteria for compliance with federal constitutional requirements, however. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) demonstrates that such review is proper and that federal courts will reverse death sentences that — though based on proper statutory criteria — reflect an interpretation of such criteria so vague or broad as to violate the eighth amendment requirement of channelled sentencer discretion. Comparison of the case in which such federal challenge is being made to other cases in which the state court has applied the statutory criteria, albeit not conclusive, is relevant to the determination whether the criteria are being constitutionally applied. See id. at 429-33, 100 S.Ct. at 1765-67. The language in the Spinkellink opinion reflecting a contrary view is no longer valid after Godfrey.
. In Part V of its opinion, the majority states three reasons for rejecting petitioner’s argument that his rights under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) were violated by the state courts’ failure to require that the sentencer find beyond a reasonable doubt that there were insufficient mitigating factors to outweigh the aggravating factors. I join in the majority’s conclusion that petitioner’s claim must be rejected for the third reason stated in the opinion: Ford’s argument confuses the process of finding facts, to which the Winship case was addressed, with the altogether different process of weighing circumstances. The weighing process, which occurs only after the relevant facts have been found, necessarily involves, subjective, normative judgments on the part of the sentencing tribunal. To apply the standard that was designed to govern the quantum of proof to the process of normative judgment simply does not make sense. For this reason only, I concur in the majority’s rejection of petitioner’s fifth claim.
I do not agree with the other reasons articulated by the majority for rejecting this claim, however. The first reason the majority states is that the due process standard established in Winship governing burden of proof in criminal cases has no bearing on the sentencing phase of a capital trial. Such statement in effect decides petitioner’s alternative argument — that proof of the existence of aggravating and mitigating factors must be sufficient to meet the Winship beyond-a-reasonable-doubt standard. As the majority notes, Majority Opinion, supra at 819, this latter assertion was not made before the panel and is not properly before the en banc court. For this reason, and because the extent of due process protection to which capital defendants are entitled at sentencing is an open and difficult question that should not be reached without full briefing and argument, see Gardner v. Florida, 430 U.S. 349, 358 & n. 9, 97 S.Ct. 1197, 1204 & n. 9, 51 L.Ed.2d 393 (1977), I would not dispose of petitioner’s claim on such broad grounds. Nor do I agree with the majority’s reliance on Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), in which the Supreme Court upheld Florida’s capital sentencing statute on its face, as a basis for rejecting petitioner’s Winship claim. The Supreme Court in Proffitt was not asked to decide the issue raised by petitioner here; nor did it decide that issue gratuitously. It held only that the statutory aggravating and mitigating factors, as related in the trial court’s instructions in that case, were sufficiently narrow and well-defined to overcome the problems of arbitrary and unguided sentencing identified in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). An approach to constitutional decisionmaking that construes the Supreme Court’s approval of a statute on certain constitutional grounds as validating the enactment against any other constitutional challenge, though an easy method of avoiding difficult questions, in my view constitutes a serious abdication of judicial responsibility. Hence, I do not join in that part of the majority’s reasoning.
. This court is bound by prior decisions of the former Fifth and Eleventh Circuits unless the en banc court expressly overrules them. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc).
. The argument that Gardner is inapplicable originated in the Florida Supreme Court, Brown v. Wainwright, 392 So.2d at 1331-33, and was adopted in toto by the panel majority, Ford v. Strickland, 676 F.2d at 444. The en banc majority refers to it approvingly. See Majority Opinion, supra at 810 & n. 2 (emphasizing Gardner’s holding that “death sentence may not be imposed ... on nonrecord, unchallengeable information” and noting that determination whether use of nonrecord information in this case was unconstitutional “[t]o some extent ... turns on whether the Florida Supreme Court is ‘imposing’ sentence or doing something qualitatively different. See Brown v. Wainwright, 392 So.2d at 1331”).
. See Gardner v. Florida, 430 U.S. at 357, 97 S.Ct. at 1204 (citing various concurring and dissenting opinions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)). See also Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878, 71 L.Ed.2d 1, 13 (1982) (O’Connor, J., concurring); Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964 (Burger, C.J., joined by Stewart, Powell, and Stevens, JJ.) (“qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed”).
. In 1976 the Court considered constitutional challenges to five states’ post-Furman capital sentencing statutes. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
. In Gardner, the trial judge had ordered a presentence investigation after the jury had returned an advisory verdict recommending a life sentence. The judge had then disclosed part, but not all, of the presentence investigation report to the defendant’s counsel and, apparently on the basis of the report, had rejected the jury’s advisory verdict and sentenced the defendant to death. Gardner v. Florida, 430 U.S. at 352-53, 97 S.Ct. at 1201-02.
. The plurality opinion in Gardner expressly held that the sentencing procedure at issue violated the due process clause of the fourteenth amendment. Gardner v. Florida, 430 U.S. at 351, 358, 97 S.Ct. at 1201, 1204. The opinion’s emphasis on the difference in kind between the death penalty and other punishments, id. at 357-58, 97 S.Ct. at 1204-05, rejection of some arguments that it conceded might have merit in noncapital cases, id. at 360, 97 S.Ct. at 1205-06, and heavy reliance on Fur-man and other death penalty decisions, id. at 360-61, 97 S.Ct. at 1205-06, however, indicate that the plurality’s reasoning involved a cross-section of eighth amendment and due process concerns. Justice White’s concurring opinion expressed the view that the procedure at issue clearly violated the eighth amendment and thus that there was no need to address the dué process issue. Id. at 362-64, 97 S.Ct. at 1207 (White, J., concurring). Justice Blackmun concurred in the judgment on the basis of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) — decisions based on the eighth amendment. Gardner v. Florida, 430 U.S. at 364, 97 S.Ct. at 1207 (Blackmun, J., concurring). Justice Brennan agreed with the plurality that the procedure at issue violated the due process clause but adhered to his prior opinions stating that the death penalty violates the eighth amendment in all circumstances. Id. at 364-65, 97 S.Ct. at 1207-08 (Brennan, J., concurring).
. The other requirement established in the 1976 cases, having been preordained by Furman, was the provision of standards and procedures to limit and direct sentencer discretion. E.g., Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990; Gregg v. Georgia, 428 U.S. at 196-98, 199, 206-07, 96 S.Ct. at 2936, 2937, 2940-41; Proffitt v. Florida, 428 U.S. at 253, 258, 96 S.Ct. at 2967, 2969.
. As noted above, the Florida Supreme Court in deciding the Brown issue assumed arguendo that the petitioners’ factual allegations were true. In the district court, petitioner proffered evidence indicating that at the time of his appeal to the Florida Supreme Court that court was engaged in the regular practice of soliciting, receiving, and reviewing extra-record materials of this type — without notifying the parties involved — in connection with its review of capital sentences. Petitioner alleged that much of this material, along with the court’s letters requesting it in particular cases, was purged from the court’s files, rendering verification that the practice was engaged in in particular cases very difficult. He offered proof that materials of the type routinely solicited by the Florida Supreme Court were contained in his prison files, however, and sought discovery to obtain evidence that the state court had requested nonrecord information in his case. The district court refused to admit the evidence petitioner proffered and denied his request for discovery. It then rejected his claim on the merits because of the absence of direct evidence that the Florida court had viewed any nonrecord information in’reviewing Ford’s sentence.
. The court described its role as limited merely to “determining] if the jury and judge acted with procedural rectitude” and “comparing] the case under review with all past capital cases to determine whether or not the punishment is too great.” Brown v. Wainwright, 392 So.2d at 1331-33.
. The Florida court did
not find it possible to believe that in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States meant to lay down a principle so pervasive as to require an appellate court to lay out for inspection by the appellant, even in a capital case, all of .the information in its hands from which it may seek perspective and guidance in reviewing the propriety of his sentence.
Brown v. Wainwright, 392 So.2d at 1332 (quoting Ex Parte Farley, 570 S.W.2d 617, 625-27 (Ky.1978)).
. See Brown v. Wainwright, 454 U.S. 1000, 1002-03, 102 S.Ct. 542, 544, 70 L.Ed.2d 407, 409 (1981) (Marshall, J., dissenting from denial of certiorari):
When reviewing a sentence for procedural regularity, the court might uphold or vacate the sentence in part on grounds not considered by the trial court, or on factually erroneous grounds, because it has viewed ex parte unreliable, nonrecord information concerning the appellant. And when reviewing sentences for proportionality, the court’s comparison of the sentences of other capital defendants with that of the appellant is rendered meaningless if the court has upheld or vacated the death sentences of other individuals after viewing this kind of information, or if the court used possibly erroneous informa*852tion only as background data for its proportionality determination. The more systematic the practice of reviewing such information, the greater the danger of this second form of distortion.
. Section 2254(d) requires federal courts addressing collateral attacks on state court judgments to defer to determinations of fact made by a state court “after a hearing on the merits of the factual issue.” The Brown court neither received evidence nor held a hearing; instead, it decided the case on the basis of the petitioners’ allegations. The Florida court thus rendered no factual finding to which the presumption of correctness under § 2254 applies. Nor does anything in the Sumner decision suggest that § 2254 is broader in scope than its terms or encompasses aspects of state court decision other than factual determinations made on the basis of evidence.
. Compare this case with Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) (mere inconsistency in verdicts insufficient basis for inferring that judge relied on impermissible evidence or nonrecord informa- . tion).
. The cause and prejudice standard was first enunciated in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), in which it was applied to bar a challenge to the makeup of a federal grand jury asserted for the first time on collateral attack. In Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), the Supreme Court extended the cause and prejudice standard to bar a similar challenge to a state’s grand-jury composition. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which applied the standard in a case challenging admission of inculpatory statements, was the first case to state that the standard is a generally applicable limitation on federal habeas review where defendants fail to comply with states’ contemporaneous objection rules.
. In Sykes the respondent had “advanced no explanation whatever for his failure to object at trial” thus precluding a finding of cause, and the Court found that evidence at respondent’s trial other than the allegedly unconstitutional evidence “negate[d] any possibility of actual prejudice.” Wainwright v. Sykes, 433 U.S. at 91, 97 S.Ct. at 2509.
. Prior to the Supreme Court decision in Engle, two circuits had addressed whether unforeseeability of a change in constitutional law occurring after trial may constitute cause under Sykes. In Cole v. Stevenson, 620 F.2d 1055 (4th Cir.) (en banc), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the Fourth Circuit held that a change in the constitutional law governing burden of proof did not constitute cause under Sykes for failure to raise a constitutional objection to burden-of-proof instructions in accordance with state procedural requirements. In Isaac v. Engle, 646 F.2d 1129 (6th Cir.1980) (en banc), rev’d, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed. 783 (1982), the Sixth Circuit reached the opposite conclusion. The only former Fifth Circuit case addressing whether a change in law constitutes cause is Dumont v. Estelle, 513 F.2d 793 (5th Cir.1975). (Although Dumont preceded the Supreme Court decision in Sykes, it applied the waiver standard on the basis of Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). See note 17 supra.) Dumont held that unawareness of constitutional precedent supporting an assertion of error is not cause for failure to raise such error in the state courts where the defe^ant seeks through his collateral challenge to establish the doctrine vindicating the constitutional right he claims. Dumont did not “present an appropriate context for determining the circumstances, if any, under which the supervening declaration of a right not previously known to exist might warrant relief from a [ ] procedural waiver .... ” Dumont v. Estelle, 513 F.2d at 800.
The Supreme Court, in reversing the Engle decision, did not resolve when unforeseeability of a post-trial constitutional development is sufficient cause to justify a procedural default because it found the development at issue was foreseeable. See Engle v. Isaac, 456 U.S. at 129-35, 102 S.Ct. at 1572-75, 71 L.Ed.2d at 802-04. The Court noted, however, that it “might hesitate to adopt a rule that would require trial counsel either to exercise extraordinary vision or to object to every aspect of the proceedings in the hope that some aspect might mask a latent constitutional claim.” Id. 456 U.S. at 131, 102 S.Ct. at 1573, 71 L.Ed.2d at 802.
. Appellant’s trial took place in December 1974. The Supreme Court decided Lockett in December 1978.
. In his separate concurrence and dissent Judge Tjoflat states that because “[pjetitioner never introduced any evidence, other than the record of the state court prosecution, to prove cause before the district court ... it cannot be seriously contended that the trial court erred in holding that Sykes bars petitioner’s claim.” (Tjoflat, J., concurring and dissenting at 828). The district judge’s findings of fact and conclusions of law reveal that he did not hold that petitioner’s claim was barred by Sykes. To the contrary, he stated that "Wainwright v. Sykes controls” and then directly proceeded to the merits of petitioner’s challenges to the sentencing phase instructions and rejected them on the merits. Findings of Fact and Conclusions of Law at 4, Record Excerpts at 113-18. While the district judge did not give highly individualized consideration to each of the subparts of the petitioner’s claim raised in the habeas petition under the general heading “E. Sentencing Phase Instructions to the Jury: Permitting the Arbitrary, Unguided Imposition of the Death Penalty,” I construe his rejection on the merits as applying to all aspects of the claim, including the Lockett claim. See Record Excerpts 113-18.
. Lockett v. Ohio, 438 U.S. at 598, 98 S.Ct. at 2961. See id. at 597-99, 98 S.Ct. at 2960-62; Comment, First Degree Murder Statutes and Capital Sentencing Procedures: An Analysis and Comparison of Statutory Systems for the Imposition of the Death Penalty in Georgia, Florida, Texas, and Louisiana, 24 Loyola L.Rev. 709, 710-15 (1978).
. The 1976 cases were the first decisions by the Supreme Court interpreting Furman. Appellant’s trial preceded these decisions by two years.
. Hertz & Weisberg, In Mitigation of the Penalty of Death: Lockett v. Ohio and the Capital Defendant’s Right to Consideration of Mitigating Circumstances, 69 Calif.L.Rev. 317, 319 & nn. 7-8 (1981); Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690, 1690-91, 1692-99 (1974).
. Indeed, the provisions of the Ohio death penalty statute invalidated in Lockett as unconstitutionally limiting consideration of mitigating factors were enacted in direct response to Furman. As the Supreme Court noted, the Ohio legislature was debating death penalty legislation that would have permitted broader consideration of mitigating evidence at the time of the Furman adjudication. Lockett v. Ohio, 438 U.S. at 599 n. 7, 98 S.Ct. at 2962 n. 7. Once Furman was decided Ohio’s legislators, “ [confronted with what reasonably would have appeared to be the questionable constitutionality of permitting discretionary weighing of mitigating factors añer Furman,” amended the pending legislation to restrict consideration of mitigating criteria from “any circumstance ‘tending to mitigate the offense’ ” to three specific statutory mitigating circumstances. Id. (emphasis added).
. In addition to post-Lockett commentary such as that cited in the text, pre-Lockett analyses of the impact of Furman reflect an interpretation that would preclude the wide discretion in consideration of mitigating factors subsequently held to be required in Lockett. See, e.g., Note, supra note 23, at 1702, 1703-04, 1707; Note, Furman to Gregg: The Judicial and Legislative History, 22 How.L.J. 53, 91-93 (1979) (article completed before Lockett though published thereafter).
. Prior to Furman, Florida’s death penalty statutes provided that defendants convicted of capital felonies would be punished by death unless the verdict included a recommendation of mercy concurred in by a majority of the jury. See Fla.Stat.Ann. § 921.141 Note (West 1973); Dobbert v. Florida, 432 U.S. 282, 288 & n. 3, 97 S.Ct. 2290, 2296 & n. 3, 53 L.Ed.2d 344 (1977). The recommendation of leniency was held within the exclusive province of the jury to be determined on the facts of the particular case, Whitney v. Cochran, 152 So.2d 727 (Fla.), cert. denied, 375 U.S. 888, 84 S.Ct. 166, 11 L.Ed.2d 118 (1963), and the jury decision, whether it recommended mercy or not, was binding on the trial judge. State v. Miller, 231 So.2d 260 (1970). The statutes provided no guidance concerning what evidence could be considered by the jury nor otherwise indicated in what circumstances a recommendation of mercy would be appropriate. Cf. North v. State, 65 So.2d 77, 100 (Fla.1952) (en banc), affirmed per curiam, 346 U.S. 932, 74 S.Ct. 322, 98 L.Ed. 423 (1954) (jury may recommend mercy when any extenuating facts or circumstances appeal to them as justifying such recommendation).
Shortly after Furman was decided, the Florida Supreme Court held these statutes unconstitutional under Furman. Donaldson v. Sack, 265 So.2d 499 (Fla.1972). The new Florida death penalty statute enacted in late 1972 set forth procedures under which the jury was to make its (now advisory) sentence and specific aggravating and mitigating criteria it could consider in sentencing. See Fla.Stat.Ann. § 775.082 (West 1976); id. § 921.141 (West 1973 & Supp.1982). It thus appears that the Florida Legislature read Furman as requiring standards or guidelines to confine the jury’s discretion in capital sentencing. See also Proffitt v. Florida, 428 U.S. at 247-53, 96 S.Ct. at 2964-2967 (describing how Florida procedures meet constitutional deficiencies identified in Furman ).
. The first case considering the constitutionality of the new Florida statute was decided prior to Proffitt’s trial. State v. Dixon, 283 So.2d 1 (1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). The majority interpreted Furman as not abolishing discretion in capital sentencing entirely but as concerned with “the quality of discretion and the manner in which it [is] applied.” State v. Dixon, 283 So.2d at 6. The opinion discusses the specific provisions of the new Florida death penalty statute and the extent to which they control sentencing discretion but does not expressly state whether the state’s mitigating circumstances provision is an exclusive list of the factors juries may consider in mitigation. The opinion’s focus on the issue of control over sentencer discretion, however, coupled with its statement that “the propounding of aggravating and mitigating circumstances” is the “most important safeguard” the statute employs to restrain and guide such discretion, id. at 8-9, would have supported an interpretation of § 921.141 as limiting sentencer consideration of both aggravating and mitigating circumstances to the factors expressly described in the statute. The dissenting opinion of Justice Ervin, which argues that the statute allows the jury too much discretion to satisfy the dictates of Furman, see id. at 13-14 (Ervin, J., dissenting), expressly interprets the statute to limit the aggravating and mitigating circumstances judges and juries may consider to those enumerated in the statute. Id. at 17.
In Cooper v. State, 336 So.2d 1133, 1139 (1976), the Florida Supreme Court strongly suggested that the only factors relevant to sen*858tencing under the Florida scheme are the statutory aggravating and mitigating circumstances. This holding was followed until, after the Supreme Court’s decision in Lockett, the Florida court reassessed its prior decisions and held that all mitigating evidence, statutory or non-statutory, is admissible. Songer v. State, 365 So.2d 696, 700 (1978) (on rehearing). Although the Songer court attempted to reconcile Cooper, see id. at 700, it has recognized that Cooper was interpreted as precluding consideration of nonstatutory mitigating evidence. See Perry v. State, 395 So.2d 170, 174 (1980).
. The opinion states:
We have not overlooked the testimony favorable to appellant’s character and prior behavior presented by the defense in mitigation during the sentencing trial. We do not pretend to know what motivated Alvin Bernard Ford to take the life of Dimitri Walter Ilyankoff. Our duty under section 921.141, Florida Statutes (1975), as upheld by the United States Supreme Court in Proffitt v. State, supra, is to apply fairly the aggravating and mitigating circumstances duly enacted by the representatives of our citizenry to the facts of the capital cases which come before us.
Ford v. State, 374 So.2d at 503 (emphasis added). A comparison of the Florida court’s opinion in Ford with its opinion in Songer v. State, supra suggests that it considers the Lockett holding as narrowly confined to the question of admissibility of evidence and not as affecting the sentencers’ or reviewing court’s roles. Washington v. Watkins, 655 F.2d at 1375 and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) repudiate this view. See text infra at 859-860.
. Engle v. Isaac, 456 U.S. at 131, 102 S.Ct. at 1573, 71 L.Ed.2d at 802. See note 18 supra.
. In cases where the constitutional claim raised by the petitioner is obviously lacking in merit it may be appropriate to dispose of the substantive claim without first addressing waiver, particularly where the latter issue involves legal or factual questions that will be difficult to resolve. Because this approach undercuts the interests served by the waiver rule, however, it should be used sparingly.
. In United States v. Frady, the petitioner had asserted that the state trial court violated his constitutional rights by instructing the jury incorrectly on malice. 456 U.S. at 158, 162, 102 S.Ct. at 1589, 1592, 71 L.Ed.2d at 824, 827. Frady had waived his claim by failing to raise it at trial or on direct appeal, id. at -, 102 S.Ct. at 1589, 71 L.Ed.2d at 824, and the Court declined to recognize an exception to the waiver rule under Sykes because it held petitioner had not established that he was actually prejudiced by the allegedly erroneous instruction. Id. at 168, 102 S.Ct. at 1594, 71 L.Ed.2d at 830. The harm asserted by Frady — that the instructions relieved the government of its burden of proving malice and thus discouraged the jury from considering the lesser included offense of manslaughter — the Court found was neutralized by the “overwhelming” evidence of malice “coupled with Frady’s utter failure to come forward with a colorable claim that he acted without malice.” Id. at 170, 172, 102 S.Ct. at 1596, 1597, 71 L.Ed.2d at 832, 833. Moreover, the fact that the jury had convicted Frady not merely of second degree murder, which required only malice, but of first degree murder, which required a finding of premeditation and deliberation, showed that the jury’s view of the facts was inconsistent with the mitigating factors that would have reduced the offense to manslaughter and with an absence of malice. Id. at 174 & n. 19, 102 S.Ct. at 1597-98 & n. 19, 71 L.Ed.2d at 833-34 & n. 19. See also Wainwright v. Sykes, 433 U.S. at 91, 97 S.Ct. at 2508 (other evidence of guilt negated possibility that admission of petitioner’s inculpatory statement prejudiced him).
. As noted above, the majority opinion presents four reasons for denying petitioner relief on the mitigating circumstances claim, three of which address the merits. I will address the majority’s third reason, which pertains to the prejudice issue, at this juncture. The majority’s first, second, and fourth bases will be treated in my discussion of the merits of petitioner’s Lockett claim. See section II.B infra.
. Washington was decided by a Unit A panel of the former Fifth Circuit on September 14, 1981, prior to the division of that Circuit into the new Fifth and Eleventh Circuits. Thus the decision in Washington is binding on the Eleventh Circuit until expressly overruled by the en banc court. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). Compare id. with Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1981) (decisions by Unit A panels of former Fifth Circuit after October 1, 1981 not binding on Eleventh Circuit).
. Washington v. Watkins, 655 F.2d at 1370.
. The jury instructions given by the trial judge at Ford’s trial provided:
Ladies and gentlemen, you have heard the evidence and argument of counsel necessary to enable you to render an advisory sentence to the Court as to whether the defendant should be sentenced to death or to life imprisonment.
Your advisory sentence will have three parts.
First: Whether sufficient aggravating circumstances exist to justify a sentence of death.
Second: Whether sufficient mitigating circumstances exist which outweigh any aggravating circumstances to justify a sentence of life imprisonment rather than a sentence of death.
Third: Based on those considerations whether the defendant should be sentenced to life imprisonment or to death.
* * * * * *
As to aggravating circumstances, in considering whether sufficient aggravating circumstances exist to justify a sentence of death, you shall consider only the following:
A, whether the defendant was under sentence of imprisonment when the defendant committed the murder of which he has just been convicted by you;
B, whether the defendant has previously been convicted of another capital felony or of a felony involving the use of or threat of violence to the person;
C, whether in committing the murder of which the defendant has just been convicted by you, the defendant knowingly created a great risk of death to many persons;
*862D, whether the murder of which you have convicted the defendant was committed while the defendant was engaged in the commission of or attempt to commit, or flight after committing, or attempting to commit any robbery, rape, arson, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb;
E, whether the murder of which the defendant has just been convicted by you was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
F, whether the murder of which the defendant has just been convicted by you was committed for pecuniary gain;
G, whether the murder of which the defendant has just been convicted by you was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;
H, whether the murder of which the defendant has just been convicted by you was especially heinous, atrocious, or cruel.
As to mitigating circumstances, in considering whether sufficient mitigating circumstances exist which outweigh any aggravating circumstances to justify a sentence of life imprisonment rather than a sentence of death, you shall consider the following:
A, whether the defendant has no significant history of prior criminal activity;
B, whether the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
C, whether the victim was a participant in the defendant’s conduct or consented to the act;
D, whether the defendant was an accomplice in the murder committed by another person and the defendant’s participation was relatively minor;
E, whether the defendant acted under extreme duress or under the substantial domination of another person;
F, whether the capacity of the defendant to appreciate the criminality of his conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired;
G, the age of the defendant at the time of the crime.
. The Florida statute provides that “Aggravating circumstances shall be limited to the following: [listing nine criteria],” Fla.Stat.Ann. § 921.141(5) (West Supp.1982), and that “Mitigating circumstances shall be the following: [listing seven criteria],” id. § 921.141(6).
. The instructions invalidated in Washington were as follows:
Members of the jury, as the court explained to you in the beginning of the trial, you have heard some evidence in aggravation put on by the State and you have heard evidence in mitigation put on by the defendant. You must in your sentencing find at least one item present of aggravation before you could impose the death penalty. If you find an item in aggravation present beyond a reasonable doubt, then you must consider any evidence in mitigation. And unless the evidence in mitigation could overcome the aggravation, of course, then you could return the death penalty ....
You have found the defendant guilty of the crime of capital murder. You must now decide whether the defendant will be sentenced to death or to life imprisonment. In reaching your decision you must obviously consider the detailed circumstances of the offense for which the defendant was convicted and the defendant himself. To return the death penalty you must find that the aggravating circumstances, those which tend to warrant the death penalty, outweigh the mitigating circumstances, which are those which tend to warrant the lesser [sic] severe penalty. Now consider only the following elements of aggravation in determining whether the death *863penalty should be imposed: One, the capital murder was committed while the defendant Johnny Lewis Washington was engaged in the commission of the crime of robbery. Two, the defendant Johnny Lewis Washington committed this capital murder in an especially heinous, atrocious, or cruel manner. Those are your elements of aggravation.
You must unanimously find beyond a reasonable doubt that one or more of these existed in order to return the death penalty .... Now if one or more of those elements of aggravation is found to exist, then you must consider whether there are mitigating circumstances which outweigh the aggravat-
ing circumstances. Now consider the following elements of mitigation in determining whether the death penalty should not be imposed: One, that the defendant has no significant history of prior criminal activity and two, the defendant’s age at the time of the capital murder.
If you unanimously find from the testimony that one or more of the preceding elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances you previously found and you must return one of the following verdicts ...
Washington v. Watkins, 655 F.2d at 1367-68.
Compare above with note 34 supra.
. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), applied in the context of a Lockett -based challenge to jury instructions, requires remand for resentencing if the trial court’s instructions, taken in their entirety, could have led a reasonable juror to believe he could consider only the statutory mitigating circumstances. See Washington v. Watkins, 655 F.2d at 1369, 1370-71. Our inquiry is thus an objective one that focuses on the judge’s instructions, and petitioner is not required to prove actual subjective misunderstanding of the law by the jurors. Although petitioner need not establish the actual state of mind of the jurors, evidence of their subjective understanding if available may support a conclusion that the instructions could reasonably have engendered their misunderstanding of the law. In this case, there is evidence in addition to the judge’s instructions suggesting that the jurors actually considered themselves limited to the statutory mitigating circumstances. At the sentencing hearing, the judge read to the jury the charge concerning aggravating and mitigating circumstances. See note 34 supra. He did not give the jury a copy of that portion of the charge, however, because petitioner’s attorney requested that he not do so. Shortly after the jury began its sentencing deliberations, the foreman submitted a request to the judge, which stated: “Judge Lee, we would like the list of charges regarding the definitions of aggravating circumstances and mitigating circumstances. Signed L. Pati, foreman.” The defense attorney objected to the judge’s reinstructing the jury on this point, but stated that if the court was to do so he would prefer the instruction be given orally rather than in writing. The judge informed the foreman that he would not provide the jury with a written charge but would again read it if the jury wished. The foreman then said to the other jurors: “You want to hear them again; what they consider the aggravating circumstances; what they consider the mitigating circumstances. They can’t give us the things to take in. He will read them again for us; okay?” The judge then repeated the instruction previously given concerning aggravating and mitigating factors. The foreman’s request for reinstruction concerning “what [the court] considers] the mitigating circumstances” indicates that he understood the circumstances enumerated by the court to be exclusive.
. The current version of the statute lists nine aggravating factors. See Fla.Stat.Ann. § 921.-141(5)(a)-(i) (West Supp.1982). The ninth aggravating factor was added by amendment in 1979. 1979 Fla.Laws, c. 79-353, § 1.
. The concluding paragraph of the judge’s findings indicates that the judge may have considered factor (h) (murder especially heinous, atrocious, and cruel) alone sufficient to support the death penalty. The finding pertaining specifically to that factor does not, in contrast to the findings on factors (a) and (b), state that it justifies the death sentence, however. Whether the judge would have imposed the death sentence absent his error in applying the statutory aggravating factors thus cannot be determined from the findings, and any attempt to answer that question would be sheer speculation.
. In our first opinion in Henry, we indicated that the petitioner had failed to object at trial to the jury instructions that were the subject of his habeas challenge. Henry v. Wainwright, 661 F.2d at 57. The state argued that by violating Florida’s contemporaneous objection rule Henry had waived his claim of error in the instructions under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Henry court rejected this argument, however, on the ground that an objection would have been futile.
The Supreme Court vacated the former Fifth Circuit decision in Henry for reconsideration in light of Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Henry v. Wain*866wright, - U.S. -, 102 S.Ct. 2976, 73 L.Ed.2d 1361 (1982). In Engle, the Supreme Court held that “the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial.” Engle v. Isaac, 456 U.S. at 130, 102 S.Ct. at 1572, 71 L.Ed.2d at 802. The Supreme Court’s decision to vacate Henry presumably was based on the Henry court’s articulation of a standard for cause that may conflict with that adopted in Engle.
After remand from the Supreme Court, this court clarified the earlier opinion and concluded that defendant had objected to the instructions at trial, but simply had not belabored the objection. Henry v. Wainwright, 686 F.2d 311 at 313. Alternatively, because the Florida courts “must have excused any default in order to reach the merits” of Henry’s claim, any default was forgiven. Id. at 314. Thus, there was no waiver under Engle or Wainwright v. Sykes. Consequently, the panel reinstated the prior judgment, holding that consideration of nonstatutory aggravating circumstances rendered the sentence constitutionally infirm and mandated vacation of the sentence. Henry v. Wainwright, 686 F.2d 311 at 314.
The waiver issue involved in Henry is not present with respect to Ford’s aggravating circumstances claims, which are aimed not at the jury instructions but rather at the trial judge’s findings on aggravating circumstances. Obviously no objection to the findings could have been raised at trial because the judge did not make the findings until after the trial. On his direct appeal to the Florida Supreme Court, petitioner objected to the findings concerning aggravating circumstances, and that court ruled on the merits of such challenge.
. The Supreme Court’s order certifying the Stephens case to the state supreme court for clarification of the state law premises for that court’s decision does not address the appropriateness of the relief ordered by the Fifth Circuit. Thq three dissenting justices were clearly of the view that resentencing was constitutionally required. See Zant v. Stephens, 456 U.S. 410, 417, 102 S.Ct. 1856, 1859, 72 L.Ed.2d 222, 228 (1982) (Marshall, J., joined by Brennan, J., dissenting); id. at 428, 102 S.Ct. at 1865, 72 L.Ed.2d at 235 (Powell, J., dissenting). The Supreme Court has received an answer to its certification to the state supreme, court, Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982), but has not yet issued a final decision in the case. Thus, the issue is still pending before the Court. Even more significant is the Court’s recent grant of certiorari in Barclay v. Florida, 411 So.2d 1310 (Fla.1982), cert. granted, - U.S.-, 103 S.Ct. 340, 74 L.Ed.2d 382 (1982), which appears to present virtually the identical issue as is raised in this case. There, in addition to considering aggravating factprs’allegedly unsupported by the evidence, a nonstatutory aggravating circumstance was considered. Because in my opinion Ford’s case cannot, on a principled basis, be distinguished from Stephens, or Barclay, the Supreme Court’s decision in either of these cases will probably affect the outcome of this case. For this reason, decision of the aggravating circumstances issue should be deferred until the Supreme Court has decided the merits of Stephens and Barclay.
. The evidence cited in support of factor (a), see text supra at 864, is relevant to, and indeed was relied on by the judge in support of, aggravating factor (e) (murder committed for purpose of avoiding lawful arrest or effecting escape from custody). Trial Court Findings on Sentence, reprinted in Ford v. State, 374 So.2d at 501-02 n. 1. The evidence cited in support of factor (b), however, particularly the defendant’s “admi[ssion] [of] the unlawful sale of narcotics drugs,” is irrelevant to any of the other statutory factors.
. The Florida Supreme Court has reversed death sentences in cases in which it has invalidated the only aggravating factor(s) found by the sentencing judge. E.g., Perry v. State, 395 So.2d 170, 172, 174-75 (Fla.1981); Purdy v. State, 343 So.2d 4 (Fla.1977). Moreover, it has reversed death sentences partially predicated on improper aggravating circumstances when any mitigating factors were established. E.g., Gafford v. State, 387 So.2d 333, 337 (Fla.1980); Lewis v. State, 377 So.2d 640, 646-47 (Fla.1980); Fleming v. State, 374 So.2d 954, 957-59 (Fla.1979).
The United States Supreme Court has reversed a death sentence on federal constitutional grounds where the state supreme court rejected all three of the theories relied on by the sentencing jury in support of an aggravating factor. Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam). The Court held the defendant’s right to due process was violated by the state supreme court’s affirmance of his sentence on the basis of a theory that the sentencing jury had not been instructed to consider. Id. at 16-17, 99 S.Ct. at 236-237. See also Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (holding sentencer’s application of “outrageously or wantonly vile, horrible and inhuman” aggravating factor to particular case unconstitutional and invalidating death sentence based solely on that factor).
. An essential premise of the Majority’s and the Florida court’s harmless-error analysis— that there are no mitigating factors — cannot, in my view, be established in this case because the trial judge and jury erroneously believed they could not consider nonstatutory mitigating evidence. See Section II.B. supra. In the following section of this opinion I will assume that no mitigating circumstances could have been established, however, because the outcome of petitioner’s aggravating factors claim, *868correctly analyzed, does not depend on the existence of mitigating circumstances.
. The Florida cases do not make clear which of these two interpretations underlie the rule. The state cites Elledge v. State, 346 So.2d 998 (Fla.1977), as the seminal Florida Supreme Court case discussing the application of the harmless error rule to erroneously considered aggravating factors. The Elledge court reasoned that improper aggravating factors could have affected the initial sentencing decision *869only if the sentencer found some mitigating factor(s). Id. at 1002-03. The court’s suggestion that the “weighing process” takes place only if the sentencer finds both aggravating and mitigating factors, see id. at 1003, implies that the statute does not allow the sentencer to evaluate the sufficiency of aggravating factors in cases where it finds no mitigating factors. But cf. Williams v. State, 386 So.2d 538, 543 (Fla.1980) (reversing death sentence predicated partially on invalid aggravating factors despite presence of one valid aggravating factor and no mitigating factors because jury recommended life sentence). The court’s holding in Williams indicates that the advisory jury may, consistently with the Florida sentencing statute, decline to impose the death penalty if it views the aggravating factors as insufficient to justify such sentence. See id. at 543. See also Demps v. State, 395 So.2d 501, 506 (Fla.1981) (trial judge may “tak[e] into consideration the quality of aggravating circumstances applicable to each defendant”).
. Henry v. Wainwright, supra, 661 F.2d at 60 n. 8 (citing Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976)). The Henry panel rejected the reasoning of the Florida court that the sentence would be affirmed as long as no mitigating circumstances were found because “there is no danger that the unauthorized [aggravating] factor tipped the scale in favor of death.” Henry v. Wainwright, 661 F.2d at 59. Henry held that the reviewing court’s role in capital sentencing was not to second-guess the motives of the jury in recommending the death penalty:
Guarding against the arbitrary and discriminatory imposition of the death penalty must not become simply a guessing game played by a reviewing court in which it tries to discern whether the nonstatutory aggravating factors exerted a decisive influence on the sentence determination. The guarantee against cruel and unusual punishment demands more.
Id. at 60.
Similarly, in Stephens the court held the sentence unconstitutional because it was “impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance.” Stephens v. Zant, 631 F.2d at 406. The constitutional deficiency in the sentence was not only that “the jury’s discretion here was not sufficiently channelled,” but also “that the process in which the death penalty was imposed in this case was not ‘rationally reviewable.’ ” Id. at 406. See also id. (as modified by 648 F.2d 446).
. E.g., Enmund v. Florida,-U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (eighth amendment prohibits imposition of death penalty on defendants who aid and abet felony during which murder occurs but do not themselves kill or intend that killing take place); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (aggravating criterion that offense was “outrageously or wantonly vile, horrible, or inhuman” unconstitutional as applied to crime reflecting no more “depravity” of mind than that of anyone guilty of murder); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (aggravating circumstances will not justify death sentence where such penalty is disproportionate to offense).