concurring in part and dissenting in part:
I join Judge Wilkins’ concurring and dissenting opinion. He demonstrates well that the majority’s holding is impossible to square with the Supreme Court’s decisions in Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). This creation of a right sans constitutional basis not only contravenes Supreme Court precedent but also disregards the independence of state judicial systems and the respective spheres of legislative and judicial competence.
*1124The federal interest in the form of state post-conviction review is an attenuated one. It is beyond question that a state has no constitutional obligation to provide post-conviction review. E.g., Finley, 107 S.Ct. at 1994. This is so because post-conviction relief is not a part of the criminal trial itself, but a separate civil proceeding. Id. The plaintiffs in this case do not seek to have lawyers appointed at state expense in order to defend themselves from state allegations of which they are presumed innocent. Rather, they seek the services of a lawyer as a sword to overturn a prior determination of guilt that is presumed to be valid. Ross, 417 U.S. at 610-11, 94 S.Ct. at 2443-44.
This analysis applies with equal force in capital cases. “[D]irect appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). Once the direct appeal process is complete, a presumption of legality and finality attaches to the conviction and sentence. Id. Although the Constitution requires that the death penalty may be imposed only through procedures that provide the highest degree of reliability, there is no support for the view that death penalty cases are subject to a separate set of standards for post-conviction review. See, e.g., Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986) (rejecting a separate standard for procedural foreclosure in capital cases).
The limited scope of federal habeas corpus further demonstrates that the federal interest in the form of state post-conviction relief is minimal. The intrusion on state interests that federal habeas entails may be exercised only for a narrow purpose, to challenge unconstitutional confinement. Thus the Courts of Appeals overwhelmingly hold that federal habeas corpus is not available to challenge alleged defects in state post-conviction proceedings. See Kirby v. Dutton, 794 F.2d 245 (6th Cir.1986); Vail v. Procunier, 747 F.2d 277 (5th Cir.1984); Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.1984). The principle expressed in these habeas cases is directly applicable to the section 1983 claims presented here. The plaintiffs’ claims have drawn the federal courts into an area where the federal interest is small and the costs to federal-state relations will be great.
The majority has lost sight of the fact that in our dual system, the states no less than the federal government are responsible for the protection of constitutional rights. Where a state criminal proceeding is involved, the Supreme Court has emphasized that the state’s role is paramount. See, e.g., Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Federal courts should act with caution where they are asked to create novel rights that intrude significantly on state functions. The lack of such caution is all the more startling here, where Virginia provides unit attorneys at its prison facilities to assist death row inmates and where Virginia courts are required to appoint counsel to represent such inmates in presenting non-frivolous claims. Darnell v. Peyton, 208 Va. 675, 160 S.E.2d 749 (Va.1968).
I can perceive no basis for the district court’s decision other than a policy judgment that it would be a good idea to provide state inmates counsel at state expense to pursue state post-conviction remedies. That policy judgment may well be correct, but the judgment is for the state legislature, the state Attorney General’s office, and the state courts to make, not the federal judiciary. We have been presented with much stimulating argument on the benefits that state-provided counsel would bring, but far less on the constitutional basis for requiring it. We have been invited to issue what is at bottom a legislative proclamation of displeasure with a controversial penalty which the Supreme Court has held is within the province of the states to impose.
The nature of the factual findings on which this proclamation would be based does not lessen my objections. The majority relies on the deference that is accorded *1125to particularized findings of fact by trial courts. Yet the findings of fact in this case are broad generalizations. Indeed, if this case turns on the individual state of mind of the condemned prisoner, or the amount of time between conviction and imposition of a particular sentence, it is difficult to see how the commonality requirement of Fed.R.Civ.P. 23 could ever have been met. The class action device undoubtedly widens the focus of a case, but it should not be taken as a grant of unlimited federal judicial authority.
Judicial legislation brings with it unique costs. By purporting to base the requirement of state post-conviction counsel in the Constitution, the court has created a rigid rule that may not readily be altered in the event of unforeseen results. Although the new right to post-conviction counsel does not appear to arise from the Sixth Amendment, it will presumably carry with it some entitlement to “effective assistance.” Provision of counsel on constitutional grounds also brings with it a panoply of procedural requirements such as those at issue in Finley, supra (addressing procedural requirements for withdrawal of counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). What is more, by analogy to previous “meaningful access” cases, future plaintiffs are likely to argue that they are entitled to counsel in section 1983 suits as well. Cf. Wolff v. McDonnell, 418 U.S. 539, 577-80, 94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935 (1974). It is hard to imagine a more fertile ground for litigation than that provided by these entitlements. The likely result will be additional cycles of prisoner litigation in every capital case, each ever further removed from the proper focus of criminal adjudication — the trial itself.
State post-conviction remedies will now move one step closer to the status of a federal protectorate. The irony is that the development of state post-trial remedies has always held substantial promise that the states themselves would assume the primary responsibility for collateral review of state criminal convictions. If every state initiative is to involve yet another blanket of federal administrative oversight, the capacity and incentives for the states to undertake meaningful reforms will disappear. The guarantees of our Bill of Rights provide important federal safeguards for state criminal trials; they have not to this point been thought to impose a federal model of state post-conviction review.
Circuit Judge CHAPMAN has asked to be shown as joining in this opinion.