concurring in part and dissenting in part:
The question before us is whether the Commonwealth of Virginia must automatically, upon request, provide death row inmates with appointed counsel to prepare and file state or federal post-conviction petitions in order to meet its obligation under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Under the guise of meaningful access, the majority has established a right to appointed counsel where none is required by the Constitution. Therefore, while I concur with the majority that there is no right to assistance of counsel with regard to federal petitions, I respectfully dissent with regard to state petitions.
The district court clearly erred in concluding that the Commonwealth of Virginia was not meeting its obligation under Bounds to provide death row inmates with meaningful access to the courts. Further, there is no factual or legal justification for requiring a per se exception for this class of inmates.
I.
In Bounds, the Supreme Court held that the constitutional right of access to the courts is satisfied by providing inmates “adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. at 828, 97 S.Ct. at 1498. Except as to death row inmates, the fact that Virginia is in full compliance with Bounds is not disputed. Even the inmate who initiated this action, Giarratano, conceded that Virginia provides a “decent” law library which includes Federal Supplement, Federal Reports, United States Supreme Court Re*1126porter, the Federal Digest, Virginia Reports, and the United States Code. Also, death row inmates are provided copies of the transcript, briefs, and state court opinion from the initial automatic appeal of their conviction.
In addition to satisfying the requirements of meaningful access by providing an adequate law library, Virginia also provides a system of institutional attorneys to assist inmates. Although the majority states that Virginia institutional attorneys, approximately two or three per facility, are “attempting to meet the needs of over 2,000 prisoners,” the record does not establish how many of those prisoners are actually involved in post-conviction or other litigation. But the record does clearly establish that all death row inmates have always been represented by counsel in state post-conviction proceedings.
Further, counsel is appointed under Va. Code Ann. § 14.1-183 (1950, Repl.Vol. 1985 & Supp.1987) for any state post-conviction petition which raises a nonfrivolous issue and requires a hearing. Virginia also allows liberal amendment to pro se habeas corpus petitions. Plaintiffs’ expert on Virginia post-conviction proceedings testified that he had no firsthand knowledge of a Virginia Circuit Court ever denying amendment to a habeas corpus petition in a capital case.
A. Meaningful Access and Pennsylvania v. Finley
After the district court rendered its decision the Supreme Court decided Pennsylvania v. Finley, 481 U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In that case the Court held that the procedures articulated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which must be satisfied before appointed counsel may withdraw from a frivolous appeal, do not apply to state post-conviction proceedings because there is no constitutional right to counsel in those proceedings:
Anders did not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures. Rather, Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.
We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks to their convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.
Finley, 481 U.S. at —, 107 S.Ct. at 1993, 95 L.Ed.2d at 545 (citation omitted).
The majority concludes that “[t]he State’s reliance on [Finley ] as authority for their contention that state prisoners are not constitutionally entitled to state-supplied attorneys in post-conviction proceedings is misplaced.” The majority seeks to distinguish Finley because it “was not a meaningful access case, nor did it address the rule enunciated in Bounds v. Smith. Most significantly, Finley did not involve the death penalty.” These distinctions are unpersuasive in light of Finley’s clear statement of existing law.
The decision in Finley relies heavily on Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In Ross, the Supreme Court held that states are not required to appoint counsel for indigents seeking a writ of certiorari. In the plainest language the decision is grounded upon principles of meaningful access: “We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking [discretionary] review in that court.” Id. at 615, 94 S.Ct. at 2446.
The reasoning of Ross effectively compelled the result reached in Finley:
We think that the analysis that we followed in Ross forecloses respondent’s constitutional claim. The procedures followed by respondent’s habeas counsel fully comported with fundamental fairness. Postconviction relief is even further removed from the criminal trial than is discretionary direct review.... States have no obligation to provide this avenue *1127of relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.
Nor was the equal protection guarantee of “meaningful access” violated in this case. ... In Ross, we concluded that the defendant’s access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. We think that the same conclusion necessarily obtains with respect to postconviction review.
Finley, 481 U.S. at —, 107 S.Ct. at 1994, 95 L.Ed.2d at 547 (citations omitted). In view of this language, I cannot agree with the majority that Finley was not a meaningful access case.
The result in Finley was compelled because there was no fundamental right to counsel in the first instance, a factor that was essential to the result reached. It was this, rather than the potentially distinguishable nature of the proceedings (appellate in Anders versus trial in Finley), which dictated the outcome. We are concerned here with the identical type of proceeding addressed in Finley, state habeas corpus, on the heels of a clear and recent statement by the Supreme Court that there is no previously established constitutional right to counsel in state habeas corpus proceedings.
The majority would additionally distinguish Finley because it did not “address the rule enunciated in Bounds v. Smith” In Bounds the issue was access to “sources of legal knowledge” to prepare meaningful papers, 430 U.S. at 817, 97 S.Ct. at 1493, and the Court explicitly stated that, for inmates seeking to file post-conviction papers, meaningful access to the courts can be satisfied by either providing adequate law libraries or “adequate assistance from persons trained in the law.” Id. at 828, 97 S.Ct. at 1498. The rule of Bounds was not addressed in Finley because Bounds was not intended to imply a broad-based right of counsel as the majority now would have it interpreted. Hooks v. Wainwright, 775 F.2d 1433 (11th Cir.1985), cert. denied, — U.S. —, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986).
The final basis upon which the majority seeks to distinguish Finley is that it did not involve the death penalty and “there is a significant constitutional difference between the death penalty and lesser punishments.” Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). Therefore, the question is essentially whether on the record before us Plaintiffs constitute an exception to Finley, or justify an exceptional application of Bounds.
B. The Death Penalty and Virginia Procedures
It is now settled that a state may impose a sentence of death on a defendant convicted of aggravated murder. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Since Gregg, the Supreme Court has focused on “the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted.” Id. at 179, 96 S.Ct. at 2928. The “significant constitutional difference” of which the majority speaks is invoked out of context. The “constitutional difference” is, under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and subsequent decisions, essentially concerned with a sentencing system which must not be arbitrary and capricious in its application; that is, it must not be “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Furman, 408 U.S. at 309, 92 S.Ct. at 2782 (Stewart, J., concurring).
Under Furman, the sentencing procedures considered were unconstitutional because the death penalty was, by virtue of unguided decision-making, “so wantonly and so freakishly imposed.” Id. at 310, 92 S.Ct. at 2763. Thus, the “significant constitutional difference” mandated the establishment of procedures to ensure that circumstances under which individual sentences of death are imposed demonstrate a principled, consistent basis for the fact-*1128finding decision, and a greater degree of reliability than is required in noncapital sentencing. See Gregg, 428 U.S. at 206-07, 96 S.Ct. at 2940; Beck v. Alabama, 447 U.S. at 637-38, 100 S.Ct. at 2389-90 (“significant constitutional difference” means that the procedural rules by which a sentence of death is imposed must not diminish the reliability of the sentencing phase of the proceeding, or the guilt phase upon which it is predicated); Booth v. Maryland, 482 U.S. —, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (a state statute that requires consideration of a victim impact statement at the sentencing phase of proceedings creates an unconstitutional risk of a death sentence based upon impermissible or irrelevant considerations); Ford v. Wainwright, 477 U.S. 399, 425, 106 S.Ct. 2595, 2610, 91 L.Ed.2d 335 (1986) (Powell, J., concurring) (“heightened procedural requirements on capital trials and sentencing proceedings” do not apply in the context of post-sentencing proceedings). This “difference,” significant as it is, is not a basis upon which we may begin implying a separate panoply of additional constitutional standards only applicable to collateral challenges in death penalty cases. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984) (in both capital and noncapital cases, the same principle governs claims as to effective assistance of counsel).
The Commonwealth of Virginia allows a sentence of death only in cases of aggravated murder. Va.Code Ann. § 18.2-31 (1950, Repl.Vol. 1982 & Supp.1987). Appeal is automatic from a sentence of death, Va.Code Ann. § 17-110.1A (1950 & Repl. Vol. 1982), and procedural safeguards in excess of that required by the Constitution are provided, such as proportionality review of the sentence imposed in each case. Va.Code Ann. § 17-110.1C.2 (1950 & Repl. Vol.1982); compare Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 879, 79 L.Ed.2d 29 (1984) (“There is thus no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it.”). At trial and on the first appeal of right, the defendant is guaranteed the assistance of appointed counsel as required by the Constitution. The Constitution does not provide a right to counsel appointed at state expense in subsequent proceedings, Ross, 417 U.S. at 610-11, 94 S.Ct. at 2443-44; Finley, 481 U.S. at —, 107 S.Ct. at 1992, 95 L.Ed.2d at 545, although a state may as a matter of legislative choice make counsel available to convicted defendants at all stages of judicial review. Ross, 417 U.S. at 618, 94 S.Ct. at 2447. It is significant that the issue of counsel arose in Finley solely because Finley sought to expand a state policy Pennsylvania has followed since 1967 which “imposes a mandatory requirement upon the trial court to appoint counsel for an indigent post conviction applicant.” Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148, 149 (1967); see Finley, 481 U.S. at —, 107 S.Ct. at 1995, 95 L.Ed.2d at 548. Similarly, Virginia courts may appoint counsel to assist in state post-conviction proceedings, Va.Code Ann. § 14.1-183 (1950, Repl.Vol. 1985 & Supp.1987), and are required to appoint counsel in cases involving nonfrivolous claims that require an evi-dentiary hearing. Darnell v. Peyton, 208 Va. 675, 160 S.E.2d 749 (1968). The Virginia procedure is similar to the procedure followed in the federal courts for review of state prisoner petitions under 28 U.S.C.A. § 2254 (West 1977). Rules Governing Sec. 2254- Cases, Rule 8(a), (c).
II.
In addition to there being no fundamental right to automatic appointment of counsel, there is no factual basis to support the majority’s extension of Bounds. Under Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), we must accept the district court’s findings of fact unless clearly erroneous. The district court’s per se exception to the standards of Bounds is grounded on three premises, none of which are supported by the record: emotional instability of death row inmates as a result of the circumstances of their confinement; the degree of legal complexity unique to death penalty cases; and se*1129vere tíme constraints before execution of sentence.
As to the first premise, the thought of execution may exact an emotional toll. But, the district court’s conclusion that death row inmates are rendered incapable of initiating post-conviction petitions is simply not supported by the facts presented. For example, Giarratano has successfully prosecuted other pro se actions while on death row. See Giarratano v. Bass, 596 F.Supp. 818 (E.D.Va.1984). And counsel for the inmates conceded during oral argument, “the record does not contain evidence of specific inmates, currently or in the past,” where this premise applies.
The record additionally fails to establish that there is a unique legal complexity to death penalty cases. Though the facts and issues of criminal cases are of varying complexity, “the legal standards for constitutionally effective assistance of counsel are constant.” Washington v. Watkins, 655 F.2d 1346, 1357 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982). Indeed, the same argument of “complexity” could be advanced by other inmates to compel appointment of counsel in noncapital post-conviction murder cases to raise complex issues involving burden-shifting presumptions, or by federal inmates prosecuted under 18 U.S.C.A. § 1963 (West 1984 & Supp.1987) (RICO) or 21 U.S. C.A. § 848 (West 1981 & Supp.1987) (Continuing Criminal Enterprise). Further, other than the occasional reference to the “esoteric,” “intricate” or “frequently sophisticated” nature of capital cases, the complexity addressed in this record refers to factual complexity and the need for factual “re-investigation.” This obscures the fact that the standards of assessing the fairness of a capital prosecution are the same as those for other criminal cases, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as well as the fact that the purpose of the right to counsel is not to provide a defendant with a private investigator. United States v. Gouveia, 467 U.S. 180, 191, 104 S.Ct. 2292, 2299, 81 L.Ed.2d 146 (1984). Plaintiffs’ witnesses also described two cases purportedly demonstrating the need for complete factual re-investigation, but later conceded that in each instance the habeas corpus petition was actually based on information gained from the transcript of trial. Finally, during oral argument the inmates’ counsel agreed that the record did not contain a single example of a case or issue which would provide a basis for the district court’s conclusion, nor could one, understandably, be posited by way of illustration.
As to the third premise, the evidence presented does not indicate that Virginia death row inmates are given a limited amount of time to prepare and present their petitions to the courts. Rather, the evidence establishes the contrary. For example, the initiating Plaintiff of the class, Giarratano, has been on death row in Virginia for eight years. The record indicates that a substantial period of time passed between the affirmance of his conviction by the Virginia Supreme Court and the initiation of state or federal habeas corpus proceedings. Another inmate in the class, James Clark, has been on death row since 1979. Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). His sentence was vacated on a state habeas corpus petition, based on an initial finding of ineffective assistance of counsel. This finding was reversed by the Supreme Court of Virginia in June, 1984 and the trial court was “directed to fix a date for Clark’s execution.” Virginia Dep’t of Corrections v. Clark, 227 Va. 525, 318 S.E.2d 399, 406 (1984). Testimony of Clark’s counsel established that efforts on his behalf are ongoing.
The history of inmates on death row in the Commonwealth of Virginia is consistent with the histories of capital cases throughout the nation. U.S. Dep’t of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment, 1986 at 1, 8. It is not uncommon to find death penalty cases which have been in litigation for as much as “a full decade, with repetitive and careful reviews by both state and federal courts,” as well as by the Supreme Court. Sullivan v. Wainwright, 464 U.S. 109, 112, 104 S.Ct. *1130450, 451, 78 L.Ed.2d 210 (1983) (application for slay of execution denied); Songer v. Wainwright, 469 U.S. 1133, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985) (Brennan, J., dissenting from denial of petition for certiorari to review sentence of death imposed in 1974). The facts, other reliable data, and common experience all show significant delay rather than a “limited amount of time” in death penalty cases.
III.
Under the majority’s analysis Virginia death row inmates are to be automatically provided counsel upon request for preparing state habeas corpus petitions, but are denied this right for preparation of federal habeas petitions. I concur in the majority’s conclusion that the Constitution does not require automatic appointment of counsel for the latter, but I disagree with the reasoning. The majority bases its distinction in treatment upon the fact that federal habeas proceedings are analogous to the situation in Ross in which a claim for appointed counsel to seek a writ of certiorari was rejected because of availability of appellate briefs, a transcript and state court opinions. The distinction obscures the fact that inmates will also routinely have appellate briefs, a transcript, and state court opinions in mounting a challenge to their conviction in state court. They will also be pursuing claims under liberal pleading and amendment rules that are essentially the same as those followed in the federal courts, and will in fact be provided counsel under essentially the same standard in both the state and federal courts in Virginia.
IV.
In testimony before the district court there was reference to an agency created by the State of Florida to handle post-conviction capital cases in that state. The district court apparently concluded that this would be appropriate for the Commonwealth of Virginia, and has effectively ordered it to create such an agency. While the Commonwealth of Virginia and other states may elect to adopt this procedure, we have no authority to order it. Federal courts are not empowered to act as “a roving commission to impose ... [our] own notions of enlightened policy. ... [T]he question for decision is not whether we applaud or even whether we personally approve the procedures followed in [this case]. The question is whether those procedures fall below the minimum level the [Constitution] will tolerate.” Spencer v. Texas, 385 U.S. 554, 569, 87 S.Ct. 648, 656, 17 L.Ed.2d 606 (1967) (Stewart, J., concurring). The record before us clearly demonstrates that Virginia’s procedures more than satisfy constitutional requirements.
I therefore dissent from the majority’s rule requiring automatic appointment of counsel upon request for assistance in preparing state habeas corpus petitions. I concur in the majority’s decision not to apply this rule with regard to preparation of federal habeas corpus petitions.
Circuit Judges WIDENER, CHAPMAN and WILKINSON have asked to be shown as joining in this separate opinion.