specially concurring, with whom COLEMAN, Circuit Judge, joins;
Although I join fully in Judge Rubin’s able opinion for the court, I write to express a particular view about a possible construction of one aspect of it, its several references to the special circumstance of a death sentence.
Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and continuing through Lockett v. Ohio,-U.S. -, 98 S.Ct. 2981, 57 L.Ed.2d-(1978), and Bell v. Ohio, - U.S. -, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), the Court’s last formal expressions on the subject, questions of how, for what crime, and indeed whether the death penalty can be inflicted have bemused and divided the Court. It may even be that the Court is in process of hedging this penalty about with such obstacles that, as a practical matter, it cannot be carried out. Unless I am mistaken, however, this has not yet happened.
The casting aside of such a measure by such a process would not be foreign to traditions of common-law development, though perhaps somewhat novel in constitutional construction. This present process is *1052attended, however, with a most unfortunate consequence in our time’s particular circumstances: that while, cudgelled by the speedy trial acts, courts process humdrum offenses with ever-increasing speed — the imposition of penalties for their commission not being such as to occasion much judicial squeamishness — that category of crimes which may be dispassionately described as heinous progress ever more slowly from commission to punishment. Intending no comment on ■ appellee Gibson, since I can know little or nothing of what influences, internal or external, may have pressed upon him, it is impossible to describe the act which he undisputedly committed here in terms which do not revolt and horrify. To say no more, as to the facts of the crime the only issue now presented is whether his victim died of the gunshot wounds which he inflicted upon her before, while, or after he completed sexually assaulting her. I do not in the least suggest that this circumstance diminishes by a straw Gibson’s right to the most searching and redoubtable defense. What I do suggest is that we should not be seen as creating a particular category of jurisprudence especially favorable to people who commit such acts because of the consequent imposition upon them of the death penalty.
That penalty either may or may not be constitutionally inflicted. I, for one, confess that I do not know the real answer to that question as matters presently stand. But insofar as our opinion may be read as indicating that the penalty inflicted here triggers application of a special complex of safeguards inapplicable to one who has received a lesser sentence — and I do not think it need be read in this fashion — I do not agree.
ADDENDUM IN WHICH CIRCUIT JUDGES COLEMAN AND GEE DO NOT JOIN:
ALVIN B. RUBIN, Circuit Judge.I add my further views with respect to the observation that abstention will not imperil the petitioner’s substantive rights. If the state court grants the writ sought, then the method by which the relief is obtained will be inconsequential. Petitioner’s ends will have been accomplished. Whether or not the writ is granted, the state may, as the opinion points out, afford petitioner the procedural assistance that he seeks. If the state court not only fails to provide such procedural assistance but also denies a writ, petitioner will have the right to apply to a federal court. At that time, his constitutional claims can be fully heard.
I.
If the failure to provide counsel or other assistance results in less than a full and fair state court proceeding, petitioner will be entitled to an evidentiary hearing de novo in federal court. 28 U.S.C. § 2254; Boyd v. Dutton, 1972, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755; Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Jackson v. Estelle, 5 Cir. 1978, 570 F.2d 546. In this complex matter, petitioner would at that time have a statutory right1 to counsel, 18 U.S.C. § 3006A(g), and, if the need for expert witnesses is shown, federal funds for their services. 18 U.S.C. § 3006A(e)(l).
Even if the denial of counsel does not per se result in less than a full and fair state court hearing, see, e. g., Williams v. Smith, 5 Cir. 1970, 434 F.2d 592, if Gibson is correct in his claims, he will be entitled to an evidentiary hearing de novo in federal court pursuant to 28 U.S.C. § 2254(d)(5), which provides that state fact-finding is not pre-clusive if “the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding.” See Lane v. Henderson, 5 Cir. 1973, 480 F.2d 544, 545. This exception to the conclusive effect of state court fact-finding is distinct from, and in addition to, those provided for failure to provide a full *1053and fair hearing. See 28 U.S.C. § 2254(d)(2), (3) and (6). Presumably, 28 U.S.C. § 2254(d)(7) would compel a new federal hearing if the state failed to provide any other form of constitutionally guaranteed assistance.
II.
Petitioner has raised a Fourth Amendment claim challenging the admissibility of evidence seized in an allegedly unlawful fashion. The trial court concluded that under Stone v. Powell, 1976, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, the state court determination would be conclusive with respect to his Fourth Amendment claim even if Gibson has no counsel in that proceeding. Gibson v. Jackson, M.D.Ga.1977, 443 F.Supp. 239, 243. However, Stone does not erect such a wall; it provides for conclusive effect only if the petitioner has been afforded “an opportunity for full and fair litigation of [his] Fourth Amendment claim.” 428 U.S. at 482, 96 S.Ct. at 3046.
In O’Berry v. Wainwright, 5 Cir. 1977, 546 F.2d 1204, cert. denied, 1977, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096, we considered whether there is any difference between this standard and the criteria governing state court conclusions with respect to other constitutional claims, set forth in Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. We concluded that, if a difference exists, more exacting standards are required by Stone; hearings that are “full and fair” for purposes of Townsend may not be “full and fair” for purposes of Stone.
Townsend is concerned only with the adequacy of state fact-finding; state conclusions as to federal law may not be given binding effect regardless how perfect the procedure by which they are determined. Townsend, supra, 372 U.S. at 318, 83 S.Ct. at 760; Lockett v. Blackburn, 5 Cir. 1978, 571 F.2d 309. Stone, however, makes state court determinations conclusive with respect both to legal and factual conclusions. Hence, the state procedure must be full and fair with respect to the development of legal contentions as well as with respect to evidentiary determinations. O’Berry, supra, 546 F.2d at 1211.
In O’Berry we concluded that, because of the finality that results from an “opportunity for full and fair litigation” under Stone, it would “be rash indeed for us to borrow wholesale the Townsend formula for use in the Stone situation, simply because the wording of the formulas used in each case is similar.”2 546 F.2d at 1212. We need not paint with a narrower brush here. If the actual hearing is not “full and fair” for purposes of Townsend, a fortiori it is not “full and fair” for purposes of Stone. If petitioner is entitled to a hearing de novo under the Townsend standard, he is entitled to such a hearing with respect to his Fourth Amendment contentions under Stone. If the state court fails to provide him a meaningful opportunity to be heard, he cannot be prejudiced with respect to either.
The court in Stone was concerned only with the “opportunity” for full and fair litigation, not with whether a full and fair hearing was actually had. The difference is concerned only with issues of waiver. Stone dictates that, if there is a deliberate by-pass or waiver of Fourth Amendment contentions, no federal hearing is warranted even if no state hearing whatsoever was held. O’Berry, supra, 546 F.2d at 1213-1214. Compare Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; or, Henry v. Mississippi, 1965, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; see Constitutional Law — Criminal Procedure — Circuits Split over Application of Stone v. Powell’s “Opportunity for Full and Fair Litigation,” 30 Vand.L.Rev. 881 (1977).
It appears from the record that petitioner did not raise his Fourth Amendment contention at trial; for that reason, he may be prevented from raising this claim in federal court by Stone and O’Berry. Additionally, petitioner suggests that he may be barred from raising constitutional claims relating *1054to the composition of the grand jury and the admissibility of his confession because he did not raise them by motion before trial. See Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216; Wainwright v. Sykes, 1977, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594; Francis v. Henderson, 1976, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149; Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U.Pa.L.Rev. 473, 497-514 (1978). It is not readily apparent that those claims may now be raised in the state forum if they are barred in federal court. If they cannot be raised in state court, petitioner will not have been piejudiced by the lack of assistance with respect to them. If they may be raised only in state court and petitioner is entitled, as a matter of constitutional right, to counsel or other assistance, then appropriate relief may be provided through a civil rights action such as the present one.3 Ultimately, petitioner will have the opportunity to attempt to establish in this forum, with the assistance of counsel, that any claim was not waived by the failure to raise it. If a constitutional right exists to assistance of counsel in proving that there is no forfeiture of a claim under a more congenial state standard, this- court can provide appropriate relief. Although “[t]he federal courts are not empowered ... to dictate the type of hearing which is to be conducted by the state courts,” Dixon v. Beto, 5 Cir. 1973, 472 F.2d 598, 599, we are authorized, indeed required, to ensure that constitutional rights are honored in state habeas proceedings. See, e. g., Hart v. Eyman, 9 Cir. 1972, 458 F.2d 334, 340, cert. denied, 1972, 407 U.S. 916, 92 S.Ct. 2441, 32 L.Ed.2d 691; Buchanan v. United States ex rel. Reis, 5 Cir., 1967, 379 F.2d 612; see also Young v. Ragen, 1949, 337 U.S. 235, 238, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333; Note, Effect of the Federal Constitution in Requiring State Post-Conviction Remedies, 53 Col. L.Rev. 1143 (1953). In sum, the chronology of collateral review will not preclude this court from ensuring that petitioner is afforded, either in this forum or another, all that the Constitution guarantees him.
HI.
There may be contentions based solely on state law that petitioner will seek to develop in state court. He is rightly concerned that he may be unable properly to do so without a lawyer. Theoretically, such state law claims may not be cognizable should he later attempt to present them as grounds for a federal habeas writ because they do not involve constitutional rights or “fundamental defects.” See Thor v. United States, 5 Cir. 1978, 574 F.2d 215, 218-219. However, it is difficult to hypothesize an alleged error in the trial proceedings of sufficient consequence that it would, if proved, compel release from state custody yet would not be cognizable within the scope of the writ.
The court has held that the denial of counsel in a post-conviction proceeding may not be raised by way of a Section 2254 petition.4 Ardister v. Hopper, 5 Cir. 1974, 500 F.2d 229, 233. This is because the denial of counsel at that stage would not be a basis, in itself, for release from state custody. It could not affect the procedure by which the petitioner was convicted. However, the denial of counsel may be the basis for considering de novo the determinations *1055made by the state court. The denial may be raised in the course of presenting a Section 2254 petition for purposes of determining the effect, if any, to be given to the state court’s conclusions. Additionally, the failure to provide counsel with respect to any contention that is not within the scope of the writ may be raised by way of a civil rights action such as the present one, at the appropriate time. (Whether it can be successfully raised is the question that wé abstain from considering.) Hence, it is difficult to perceive how petitioner can be prejudiced even if we assume that the worst from his perspective will materialize.
IV.
It should be apparent that, for the State of Georgia to require petitioner to proceed at this time without counsel and other assistance may make another full federal proceeding neeessary at further expense to the state and with unavoidable delay. Most states now provide lawyers for indigents in such cases.5 Although Georgia statutes make no provision for counsel, the Georgia bar has, without compensation, often provided most able legal assistance to indigents. Under these circumstances, it appears to me that both justice and prudence point the path that the state prosecutor should suggest and that the state court should take. If, as a result of their failure to do so, the petitioner’s federal constitutional rights are violated, the federal forum will be open.
. Although the appointment of counsel is discretionary under this provision, see Vande-nades v. United States, 5 Cir. 1975, 523 F.2d 1220, 1225, the circumstances of this case would compel appointment.
. We did state, “we see no need to ignore the Townsend standard when it may shed some light on the problem at hand.” 546 F.2d at 1212.
. For example, it may be determined that petitioner has no constitutional right to raise a particular contention in federal or state court, but if either court allows him to raise that contention, he may have a constitutional right to assistance with respect to it. See, e. g., Douglas v. California, 1963, 372 U.S. 353, 355-356, 83 S.Ct. 814, 815-816, 9 L.Ed.2d 811; Smith v. Bennett, 1961, 365 U.S. 708, 713-714, 81 S.Ct. 895, 898, 6 L.Ed.2d 39. I express no opinion with respect to the merits of this view, but note only that, if it is adopted, petitioner will not be prejudiced.
. To the extent that the court in Ardister purported to reach the merits of the right to counsel issue, its decision, like those in Abraham v. Wainwright, 5 Cir. 1969, 407 F.2d 826; Stanley v. Wainwright, 5 Cir. 1969, 406 F.2d 8, and Queor v. Lee, 5 Cir. 1967, 382 F.2d 1017, is not dispositive because it did not consider the effect, if any, of the imposition of the death penalty, or of the Supreme Court decision in Bounds v. Smith, 1977, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72.
. At least 34 states have provided for the appointment of counsel in such cases either by statute or specific court rule. Note, Discretionary Appointment of Counsel at Post-Conviction Proceedings: An Unconstitutional Barrier to Effective Post-Conviction Relief, 8 Ga.L.Rev. 434, 453 (1974).