dissenting:
While I agree with the standard used by the majority to determine whether a petitioner is “actually innocent” of the death penalty, I cannot agree with the majority’s application of that test to the facts of this case. I must, therefore, respectfully dissent.
I
Because this case demonstrates the different mode of analysis we are to undertake once we determine that a subsequent federal habeas corpus petition is abusive, some background is in order. Deutscher was convicted of murder and sentenced to death by a Nevada state court in 1977. After direct and collateral appeals in state and federal courts, Deutscher filed his second federal habeas petition. This panel reviewed that petition in Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989) (Deutscher I).
*1448In Deutscher I, we erroneously held that Deutscher could raise claims for the first time in his second federal habeas petition because he had not “made a conscious decision to withhold claims, engage in piecemeal litigation, vex, harass, or delay.” Id. at 1155-56. We found that two of Deutscher’s claims had merit. First, we found that Deutscher was denied effective assistance of counsel because Deutscher’s lawyer failed to introduce any mitigating evidence at sentencing, despite its availability. Id. at 1159-61. We found this omission, along with counsel’s inept closing argument, to be a result of incompetence rather than of trial tactics. Id. at 1160. Because we found a “reasonable probability” that the result would have been different but for counsel’s errors at sentencing, we held that Deutscher should be resen-tenced. Id. at 1163.
Second, we found in Deutscher I that one of the statutory aggravating circumstances presented to Deutscher’s sentencing jury was unconstitutionally vague. The judge instructed the jury at Deutscher’s sentencing that any one of three aggravating circumstances would qualify Deutscher for the death penalty:- (1) prior conviction of a felony involving the use or threatened use of violence; (2) murder during an attempted sexual assault; or (3) murder involving “torture, depravity of mind, or the mutilation of the victim.” Id. at 1154. The jury found all three of these aggravating factors. Id. We held that the “depravity of mind” instruction was unconstitutionally vague becaüse it lacked objective factors which would restrain arbitrary imposition of the death penalty. Id. at 1162.1
The Supreme Court directed us to reconsider our decision in light of McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). I now turn to that task.
II
The majority correctly holds that Deutscher’s second federal habeas petition is ari abuse of the writ under McCleskey because he cannot show cause for failing to raise the claims in his first federal habeas petition. The majority errs, however, by holding that Deutscher can nonetheless press his claims on habeas because “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 111 S.Ct. at 1470. The “fundamental miscarriage of justice” exception to abuse of the writ is reserved for a petitioner who not only alleges a constitutional error but also makes a showing of factual innocence. Id. at 1471. The exception “serves as ‘an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty.’ ” Id. (quoting Stone v. Powell, 428 U.S. 465, 492-93, 96 S.Ct. 3037, 3051-52, 49 L.Ed.2d 1067 (1976)).
In Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986), the Supreme Court held that the “fundamental miscarriage” exception applies to the sentencing determination in addition to the adjudication of guilt. The Court has recognized that deciding whether a petitioner is “innocent” of a death sentence is problematic, and application of the rule in specific cases is difficult. See Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Smith, 477 U.S. at 537, 106 S.Ct. at 2667. The Court has, however, clearly stated that this exception is reserved for the “extraordinary” case. Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6.
*1449I agree with the majority that the test applied by the Eleventh Circuit in Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir.1991) (en banc), is too stingy to guard against miscarriages of justice. Deutscher has not convinced me, however, that errors at his sentencing “ ‘probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.’ ” Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1989) (quoting Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989)).
I believe that the majority focuses too heavily on whether Deutscher’s sentencing was procedurally perfect rather than whether he has shown that a new jury probably would not sentence him to death. The Supreme Court has cautioned that “[djemonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is ‘actually innocent’ of the sentence he or she received.” Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6 (emphasis added). A “colorable showing,” Smith, 477 U.S. at 538, 106 S.Ct. at 2668, that “a constitutional violation undermined the accuracy of the sentencing decision” is simply not enough. Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6.2 Instead, Deutscher must convince this court that a jury on resentencing probably will not sentence him to death.
I cannot honestly believe that Deutscher will not again be sentenced to death by the next jury he faces. The murder for which Deutscher was convicted was grisly and barbaric:
On the morning of August 16, 1977, the body of Darlene Joyce Miller, 37, was discovered on the desert road.... She was nude except for a blouse and bra that had been pulled open around her shoulders. Her legs were spread apart and there was smeared blood between her upper thighs. She had superficial lacerations and abrasions on her breasts and abdomen which experts testified represented bite marks. Her neck, face and head were severely bruised, bearing extensive abrasive-type injuries. Her head had a large depression skull fracture two and three-fourths inches in diameter caused by a crushing or blunt type object. A trail of dripped blood led from the crime scene to [a nearby highway],
A forensic pathologist testified as to the extent of injuries which the victim incurred, finding no evidence of recent sexual intercourse. The expert did testify that the victim had been strangled and that all the injuries were inflicted while the victim was still alive with the blow causing the two and three-fourths inch diameter hole to the left side of her head being the last and probable “lethal” injury-
Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979).
That one of the three aggravating factors found by the jury was unconstitutionally vague does nothing to undermine the jury’s finding that two other aggravating circumstances were applicable to Deutscher. Moreover, I believe that the new jury will again find the “depravity” circumstance after it is appropriately limited by the trial judge’s instructions to restrain arbitrary imposition of the death penalty.
Nor do I believe that a new jury probably will not again sentence Deutscher to death when it hears the mitigating evidence Deutscher now proposes to present. Our previous holding that the presentation of the mitigating evidence might have changed the result was based on our analysis of Deutscher’s ineffective assistance of counsel claim. Thus, our conclusion was based on our view that “[w]e cannot say *1450with confidence that the jury's sentencing decision would have been the same in this case had Deutscher’s counsel presented the available mitigating evidence.” Deutscher I, 884 F.2d at 1160. Deutscher had only to convince us that there was a “reasonable probability” that the mitigating evidence would have an effect on the outcome of his sentencing. Id. But, in light of McCles-key, we have now learned that Deutscher is barred from pursuing his ineffective assistance claim in this, his second, federal habe-as petition. The burden of persuasion is now on Deutscher and he has failed to carry it.
McCleskey and other abuse of the writ decisions teach us that once a petitioner is barred from habeas relief due to abuse of the writ, he may find relief in the federal courts only if he demonstrates that he is actually innocent of either the crime or the death penalty. While Deutscher’s claims would be cognizable were they not procedurally barred, they do not suffice to render him “actually innocent” of the death penalty. Because I believe that the jury on remand probably will, contrary to the majority’s view, again condemn Deutscher to death, I respectfully dissent.
. The Supreme Court directed that we reconsider this holding in light of Lewis v. Jeffers, - U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). Lewis held that a statutory aggravating circumstance for.murder committed in an "especially heinous, cruel or depraved manner” was not unconstitutionally vague as long as the trial judge gives sufficiently specific and objective instructions to the sentencing jury. Since the trial judge instructed Deutscher’s sentencing jury in the bare language of the statute, Lewis is inapplicable. See Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990) C'[I]n both Maynard and Godfrey the defendant was sentenced by a jury and the jury either was instructed only in the bare terms of the relevant statute or in terms nearly as vague. Neither jury was given a constitutional limiting definition of the challenged aggravating factor.") (citations omitted).
. Although the Court in McCleskey used the "colorable showing" language, it was merely quoting the plurality decision in Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986). In Smith, decided on the very same day as Kuhlmann, a majority of the Court plainly rejected the argument that a "colorable showing" of error would excuse procedural defaults in state court. Smith, 477 U.S. at 538, 106 S.Ct. at 2668. Moreover, the Court in Adams made clear that a standard allowing evasion of the cause and prejudice standard for errors that “might” have affected the accuracy of a death sentence is too lenient to excuse an abuse of the writ. Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6.