concurring in part and dissenting in part:
Enmund Issue
The majority misunderstands Enmund and promulgates a rule that deprives defendants in this circuit of their Eighth and Fourteenth Amendment right to a jury resolution of the fact issue of whether a defendant “killed or attempted to kill, and regardless of whether he intended or contemplated that life be taken____” as well as his Eighth Amendment right not to receive the death penalty unless he killed, attempted to kill or intended that a killing take place. Enmund 102 S.Ct. at 3379. At stake is whether a defendant’s right to a jury resolution of the issue of guilt includes the right to a jury determination of the extent of that guilt, if guilt is found.
The majority holds that such a right is subject to proportionality review, indicating a misunderstanding of that principle of *1496law. Proportionality review has been spoken of by courts in two separate ways. First, it has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. The Supreme Court for example has struck down punishments as inherently disproportionate when imposed for a particular crime or category of crime. See, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death penalty disproportionate for the rape of an adult woman); Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (life sentence without parole disproportionate for a habitual offender whose previous criminal record consisted of seven relatively minor property offenses); and Enmund v. Florida, supra. Second, proportionality review has been used in a comparative sense, i.e., is a penalty that is not per se disproportionate, nevertheless unacceptable in a particular case because it is disproportionate to the punishment imposed on others for the same crime? This type of review is triggered when an individual defendant contends that other defendants convicted of the same crime have been punished less severely than he. See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).1 This case, and the inquiry suggested by the majority implicates the first type of proportionality review, i.e. inherent disproportionality; the severity of the penalty is constitutionally out of proportion to the nature of the crime.
*1494An Eighth Amendment claim based on racial discrimination cannot require proof of discriminatory intent because the death penalty heightens the need for consistent *1495and fair decisions while at the same time maintaining the need for the discretion to make individualized judgments. An appellate court can only give searching review to the fairness and consistency of a discretionary decision if it employs evidence of disparate impact because the discretion of state decisionmakers makes evidence of their intent difficult if not impossible to obtain. McCleskey v. Kemp, 753 F.2d 877, 909 (11th Cir.1985) (Johnson, J., dissenting). Since the special nature of the death penalty calls for the use of effects evidence, the evidence proffered by Ross had only to show by a preponderance of the evidence a significant racial influence on the pattern of death sentences; the evidence did not have to compel an inference of purposeful discrimination. The Baldus Study had a reasonable probability of success1 under this standard and the district court erred in refusing to hold a hearing.
*1496The Supreme Court cases dealing with inherent disproportionality lead me to a different conclusion from that reached by the majority. More specifically, in En-mund the Supreme Court, pursuant to the Eighth Amendment held that one who “aids and abets a felony in a course in which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed” cannot receive the death penalty. 458 U.S. 782, 102 S.Ct. 3368, 3376-77, 73 L.Ed.2d 1140 (1982). It was the Court’s conclusion that the death penalty in such a case was not commensurate with the lesser culpability inherent when the evidence did not establish that the accused intended that a life be taken. Admittedly, Enmund was a proportionality review in the sense that the Court examined the history of felony murder rule statutes in the various jurisdictions and the sentencing patterns of juries in similar situations. However, the conclusion that the Supreme Court reached is not one that fluctuates from case to case but rather was a final determination that one who does not kill, attempt to kill or intend to kill cannot receive the death penalty. To allow the imposition of the death penalty in such a case, the Supreme Court concluded, would be a violation of the Eighth Amendment. Id. 102 S.Ct. at 3372.
Therefore, the determination has been made by the highest tribunal in this country that an “Enmund type” defendant cannot under our Constitution be eligible for the death penalty. The determination of whether an accused is an “Enmund type” defendant is a question of fact. The determination is identical to that of a jury decision of whether an accused is guilty of murder, voluntary manslaughter or involuntary manslaughter.
To receive the death penalty in Georgia, the state must prove that the defendant with malice aforethought caused the death of the victim (O.C.G.A. § 16-5-l(a) and (b)) or that the defendant in the commission of a felony caused the death of the victim (O.C.G.A. § 16-5-l(c)) (emphasis added). Consideration of this Georgia statute along with the holding in Enmund would require that the evidence show that the defendant “caused” or “intended that a killing take place” and that the jury be so instructed before a defendant could be eligible for the death penalty. The Enmund holding does not limit Georgia’s felony murder statute. The conceptual difficulty arises in a case where there is a conspiracy to commit a felony during the course of which a murder *1497takes place. The law of conspiracy makes each member guilty of the criminal conduct of each other member under an agency theory. The holding in Enmund forbids extension of the death penalty to a co-conspirator who has no intention that a life be taken. The same reasoning would apply if the defendant were an aider or abettor. Nothing in Enmund limits the sentence of death in a typical felony murder case or in a conspiracy to commit murder case. It only forbids a death penalty being based on the imputation of an intent to kill. The Georgia cases are clear that a conspirator to the commission of a felony that results in a murder can be convicted of murder,2 but I find no Georgia case where such a defendant, who did not cause a death or intend that a life be taken, received the death penalty.3
In Georgia, the jury is required to make all factual determinations.4 Therefore, the conclusion is inescapable that an Enmund instruction must be given in a case where the evidence warrants it.
This conclusion is not only consistent with but is compelled by the Supreme Court’s decisions in capital cases. The central mandate of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), has been described by the High Court as being, “ ‘[wjhere discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ ” Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983). In this vein, the Court has been chiefly concerned with the procedures by which the state imposes the death sentence. Ramos v. California, 463 U.S. 992, 103 S.Ct. 3446, 3451, 77 L.Ed.2d 1171 (1983). This is so because the qualitative difference of the death penalty requires "a corresponding difference in the need for 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, *149849 L.Ed.2d 944 (1976). Just last term the Court stated, “We reaffirm our commitment to the demands of reliability in decisions involving death____” Spaziano v. Florida, — U.S. -, -, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340, 349 (1984).
In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Court found that the Constitution required that a defendant in a capital case receive a lesser included offense instruction if the facts supported it. The Court concluded “... if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.” 447 U.S. at 638, 100 S.Ct. at 2390. This result was reached because of the mandate of the Eighth and Fourteenth Amendments which requires the invalidation of procedural rules that diminish the reliability of the life/death determination. Id. Similarly, a state is prohibited from withdrawing the decision whether an accused is an “En-mund type” defendant from the jury. To allow the states to do so is to enhance the risk of an unwarranted death sentence.
The clear holding of Enmund is that one who does not kill, attempt to kill or intend that a killing take place is not “death eligible.” As it is the purpose of a capital statutory scheme to determine who shall receive the death penalty from among those who are “death eligible,” any valid trial process must first properly attempt to narrow the pool. This is, for example, the purpose of aggravating circumstances, “they circumscribe the class of persons eligible for the death penalty.” Zant, 103 S.Ct. at 2743. Likewise, an Enmund instruction is required to remove from the “death eligible” class those who do not kill, attempt to kill or intend that a killing take place.5 The Eighth Amendment cannot and does not require anything less.
The Court’s reasoning in Lockett v. Ohio, 438 U.S. 586, 592, 98 S.Ct. 2954, 2958, 57 L.Ed.2d 973 (1978), is also useful in this ease. In Lockett, the Court held that a state could not preclude the senteneer’s “considering as an independent mitigating factor any aspect of a defendant’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2965. The capital sentencing system at issue in Lockett, the Court continued, “... creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Id. at 605, 98 S.Ct. at 2965.
This is a more compelling issue than Lockett. In Lockett, the jury was denied access to information which may in the jury’s discretion have resulted in a sentence less than death. The Enmund decision, however, if resolved in the defendant’s favor is determinative of eligibility for the life/death decision and therefore the failure to so instruct the jury creates the risk that the death penalty will be imposed despite a factor which constitutionally removes a defendant from the class of those who are death eligible. This is simply not a decision to be left for a reviewing court in the first instance. The risk of error is too great in a capital case.6
*1499The majority’s refusal to acknowledge this is to abandon our responsibility to “carefully scrutinize capital sentencing schemes to minimize the risk that the penalty will be imposed in error or in an arbitrary and capricious manner.” Spaziano, supra, — U.S. at-n. 7, 104 S.Ct. at 3162 n. 7, 82 L.Ed.2d at 349 n. 7. Instead of a procedure that removes “Enmund type” defendants from the pool of death eligible persons before the penalty is imposed, the majority places the federal courts in the position of making a post-trial determination that a particular accused was- or was not within the parameters of the Court’s holding in Enmund.
The substantive limitation placed upon capital sentencing by the Eighth Amendment in Enmund prohibits the imposition of the death penalty upon one who does not kill, attempt to kill or intend that a killing take place. The procedural component of the Eighth Amendment requires that the discretion of the jury be focused upon the individual’s culpability by an appropriate instruction. Contrary to the majority, I would conclude that not only is an En-mund instruction useful or necessary, but that it is Constitutionally required. This conclusion is consistent with that reached by the Fifth Circuit in Reddix v. Thigpen, 728 F.2d 705 (5th Cir.1984), and Clark v. Louisiana State Penitentiary, 694 F.2d 75 (5th Cir.1982).7
The majority reaches out to formulate a holding to deny “Enmund type” defendants a jury determination of an issue that determines whether he is elgible to even be considered for a possible penalty of death. It arrogates to the federal courts in habeas corpus cases the authority to conduct a case by case proportionality review in death cases, an authority we do not have.8 In this case, sentence review is not even implicated. An Enmund issue is directed to determining whether an accused charged with first degree or felony murder is guilty to the extent that he should be subjected to death penalty consideration by a jury and/or judge. The three states in this circuit grant a person charged with murder a bifurcated trial to determine first whether the accused is guilty (the guilt phase) and should be considered for the death penalty, and if so, a secondary trial on the issue of whether the sentence is death or a life sentence (the sentencing phase).9
While I completely disagree with the rationale of the majority opinion, I do agree that the judgment of the district court should be affirmed. Ross was not entitled *1500to an Enmund instruction.10 The majority opinion reviews the evidence and I shall not repeat it. There is no doubt that Ross contemplated that a life would be taken if a policeman entered the house, and there is only a whimsical doubt as to whether Ross was the actual killer. He either killed Meredith or his gun misfired while he was trying to kill him. Even accepting the latter version, Enmund is merely a straw-man in this case.
Therefore, I would affirm the district court’s denial of the writ insofar as this particular issue is concerned. I concur with the remaining portions of the opinion.
. I agree with the majority that a petitioner must proffer evidence that has a "reasonable possibility” of establishing a basis for relief. This is a natural consequence of the requirement that a petitioner allege a "material" fact in order to obtain an evidentiary hearing in federal habeas corpus proceedings. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Thomas v. Zant, 697 F.2d 977, 983-85 (11th Cir. 1983).
. In Pulley, the Supreme Court held that comparative proportionality review of death sentences by a court of statewide jurisdiction was not constitutionally required.
. See, e.g., Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975) holding that intent in a felony murder or malice murder was imputable to Burke who conspired with the slayer to commit a robbery during which a person was killed regardless of whether murder was part of the original design. Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976) (defendant who was part of a conspiracy to commit armed robbery was equally responsible for the murder even though he was not present when the killing took place). See also Carter v. State, 252 Ga. 502, 315 S.E.2d 646 (1984) (all of the participants in a plan to rob are criminally responsible for the acts of each other).
. My review of the Georgia law consisted of an examination of both pre and post-Enmund cases dealing with conspirators to the commission of a felony during which a killing occurs. I also examined the Georgia Supreme Court cases discussing Enmund. There are several Georgia cases discussing Enmund in which a death sentence was upheld but those cases concern fact situations in which the defendant was actually involved in the killing. See, e.g., Jones v. Francis, 252 Ga. 60, 312 S.E.2d 300 (1984); Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982); Buttrum v. State, 249 Ga. 652, 293 S.E.2d 334 (1982). In Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), the defendant raised the identical issue presented in this case, i.e. that he was entitled to an Enmund instruction. However, because the defendant was actually involved in the killing (there was his own testimony that he struck the victim at least once) and the fact that the jury specifically found him guilty of malice murder following an instruction that advised the jury that intent to kill was an essential element of the crime, the court found no error. 300 S.E.2d at 309. Likewise, in Jones v. Francis, supra, the defendant complained of the failure to give an Enmund instruction. The court found that the defendant participated in the killing and that the evidence was overwhelming ' that he either killed, intended to kill or that lethal force would be employed. 312 S.E.2d at 303. The court concluded therefore, looking at the instructions as a whole that the jury could not have been confused in finding intent to kill. Therefore, any Enmund error in the charge was nonprejudicial. 312 S.E.2d at 304. As I will discuss later in the opinion, I reach a similar result in this case, because of the particular facts here, i.e. Ross was actually involved in the killing even if he did not actually take the victim's life, Enmund was not at issue.
. The Georgia Constitution of 1976 § 2-108 states "... [T]hejury in all criminal cases, shall be the judges of the law and the facts.” O.C.G.A. § 27-2301 states in pertinent part, "On the trial of all criminal cases the jury shall be the judge of the law and the facts____”
. In Georgia, for example, a jury cannot impose the death penalty unless and until it finds the existence of at least one statutory aggravating circumstance beyond a reasonable doubt. If no aggravating circumstance is found, the convicted person is not death eligible. O.C.G.A. § 17-10-30 et seq. An Enmund instruction in the proper case would work the same way. If an Enmund instruction is given, and the jury finds that the defendant did not kill, attempt to kill, or intend that a killing take place, then that person likewise would not be death eligible.
. Several other concerns suggest that reviewing courts should not have the sole burden of this decision. First, we review cases from a "cold record.” The jury on the other hand is there to hear and assess the credibility of the witnesses and the defendant. The Enmund decision is frequently one of assessing credibility of conflicting versions as to the culpability of one of several defendants. Second, comity between the state and federal courts suggests that the states be given the first opportunity to remove an accused from the class of "death eligible" *1499persons. The tension that frequently manifests itself when federal habeas courts review state imposed death sentences would thus be party alleviated. The majority’s resolution of this issue, however, can only augment the problem by forcing federal courts to evaluate in the first instance a case for an Enmund problem. The Supreme Court recognized similar difficulties in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (death penalty invalidated because part of a presentence report was not shown to defense counsel). In Gardner, the Court acknowledged that it could remand the case to the Florida Supreme Court and have them evaluate the record to determine if the presentence report had any effect on the sentence but chose to require that the decision be made at the trial court level. The Court said that review by the Supreme Court of Florida "could not fully correct the error. For it is possible that full disclosure ... would have caused the trial judge to accept the jury’s advisory verdict [of life].” 430 U.S. at 362, 97 S.Ct. at 1207.
. In Reddix, the court stated, "The eighth amendment, then, allows the state to impose the death penalty only if it first proves that the defendant either participated directly in the killing or personally had an intent to commit murder.” 728 F.2d at 708. In Clark, the court held, "Before the Constitution will allow this conviction and sentence, however, we must know that the jury found beyond any reasonable doubt that Clark, personally, did have that mind to kill." 694 F.2d at 78.
. Of course, however, we still retain the power pursuant to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), to review the sufficiency of the evidence when a petitioner collaterally attacks an adverse jury determination on the Enmund issue.
. Code of Alabama § 13A-5-45; F.S.A. § 921.-141; O.C.G.A. § 17-10-31.
. In all pve-Enmund habeas corpus cases I would review them pursuant to the Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) standard. If the failure to give an Enmund instruction is harmless beyond a reasonable doubt, there would be no reason for a retrial. Apparently the Georgia Supreme Court, see note 3, takes the same view. I assume the state trial courts are giving an Enmund instruction where the evidence warrants one.