dissenting:
The threshold question presented by this appeal is whether, in a habeas corpus case presenting multiple claims for relief, a court of appeals has the authority to review an order of the district court which grants relief without disposing of all of the petitioner’s claims. Supreme Court precedent answers this question: we are powerless to review a district court order granting the writ of habeas corpus unless the order finally disposes of all of the claims the petitioner has presented. Andrews v. United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 1240, 10 L.Ed.2d 383 (1963); Collins v. Miller, 252 U.S. 364, 365, 40 S.Ct. 347, 347, 64 L.Ed. 616 (1920). The Supreme Court views the exacting standards of finality that govern appeals under 28 U.S.C. § 1291 (1982)1 as applicable in habeas corpus cases as they are in other proceedings.
In his habeas petition to the district court in this ease, the petitioner presented fifty-nine federal constitutional claims.2 The *539district court, following a brief evidentiary hearing, found that three claims had merit and granted the writ.3 The court expressly declined to rule on petitioner’s remaining claims.
It is clear from the district court’s dispositive order, and the record, that petitioner did not expressly abandon any of the undecided claims. It is equally clear that the district court did not treat them as abandoned or otherwise dispose of them by, for example, dismissing them without prejudice. We are therefore faced with a case in which the trial court entered a “final judgment” without terminating the litigation.
The majority nonetheless holds that the order before us is a final appealable decision. The only way the majority can do so, in the face of the Supreme Court precedent I have cited, is to say that that precedent only governs habeas cases in which the district court has denied the writ or to view the instant case as presenting only one claim. Neither argument has merit, and I therefore dissent.
I also dissent from the majority’s treatment of the merits in this case. Petitioner failed seasonably to present to the Georgia courts two of the three claims the district court decided on the merits; he either asserted them in a “successive” habeas corpus petition or not at all. Because of this “procedural default,” the Georgia courts have not and would not now decide these two claims.4 The district court, and the majority, should have respected Georgia’s enforcement of its procedural default rule by requiring, as a condition precedent to their entertainment of these particular claims on the merits, petitioner to show “cause” for not bringing them to the state courts in a timely fashion and resulting “prejudice.”5 Petitioner has failed to dem*540onstrate such cause and prejudice; accordingly, the two claims in question should have been denied. As for the merits of those claims, I find repugnant to precedent and to logic the majority’s fashioning of new constitutional rules under the sixth amendment’s “assistance of counsel” provision and the “fair trial” component of the Due Process Clause in vacating petitioner’s conviction in this case. With respect to the third claim the district court decided, I would remand that claim to the district court with the instruction that it reconsider the claim under the Supreme Court’s decision in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
I.
The final judgment rule is the dominant rule in federal appellate practice. Di Bella v. United States, 369 U.S. 121, 124-26, 82 5. Ct. 654, 656-57, 7 L.Ed.2d 614 (1962). In criminal cases, the insistence upon finality and the prohibition of piecemeal review is particularly important. Id., 82 S.Ct. at 656-57; see Cobbledick v. United States, 309 U.S. 323, 324-26, 60 S.Ct. 540, 541-42, 84 L.Ed. 783 (1940). The same is true in habeas corpus proceedings. The Supreme Court stated in Andrews v. United States that “[t]he standards of finality to which the Court has adhered in habeas corpus proceedings [is] no less exacting [than in other cases].” 373 U.S. at 340, 83 S.Ct. at 1240. In Collins v. Miller, it held that for a judgment to be appealable it must be final “not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved.” 252 U.S. at 370, 40 S.Ct. at 349 (emphasis added). See also Andrews, 373 U.S. at 340, 83 S.Ct. at 1240.
In Collins v. Miller, the petitioner was being held in federal custody on three extradition warrants based on three separate affidavits. He brought a federal habeas corpus action, and the district court determined that the writ should be denied as to one of the warrants. As to the other two warrants, the court referred the case for further hearing before the district judge who had ordered the petitioner’s detention. The Supreme Court concluded that the district court’s order was not a final appealable order because it disposed of only one of petitioner’s causes of action. The Court stated: “To be appealable, the judgment must be, not only final, but complete.” 252 U.S. at 370, 40 S.Ct. at 349 (emphasis added).
Despite this precedent, the majority finds that the district court’s order, disposing of only three6 of petitioner’s claims, or causes of action, is a final order, ripe for appellate review. As stated above, there are only two ways conceivably to square such a holding with this precedent: either the majority feels that this precedent only applies when the district court denies the writ or it views a habeas petition as one claim regardless of the number of discrete constitutional violations the petitioner alleges. Because this second argument is most quickly disposed of, I address it first.
*541The argument that a habeas petition presents only one “claim” and that the various constitutional errors cited to support the claim constitute merely “grounds” for relief cannot be reconciled with Supreme Court precedent or with prevailing case law distinguishing “claims” from “grounds.” As I have noted in discussing the Court’s decision in Collins v. Miller, the petitioner there alleged that his detention, based on the three affidavits, was unlawful because he had been denied the right to present evidence to rebut the affidavits. The court denied the petition as it related to one of the affidavits and referred it to the judge who had ordered the petitioner’s detention for further proceedings as to the other two affidavits. The Supreme Court held that each of the three deficiencies petitioner alleged in his habeas petition amounted to a separate claim and dismissed his appeal because only one of his claims had been disposed of by the district court. We should hold similarly here and dismiss this appeal, because fifty-eight of petitioner’s claims have not been decided.7
In addition, the characterization of the constitutional violations presented in a habeas petition as separate “grounds” rather than separate “claims” is inconsistent with modern case law on this issue. First, it is clear that separate claims may be based on a single set of operative facts. See Sears, Roebuck and Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956); 10 C. Wright, S. Miller, M. Kane, Federal Practice and Procedure § 2657 (2d ed. 1983). Thus, although some of petitioner’s claims here may have arisen from the same set of operative facts, a characterization of them as “claims” is not negated. Moreover, the position that each constitutional violation presented in a petition constitutes a separate claim is consistent with the oft-cited definition of “claims” stated in Rieser v. Baltimore and Ohio Railroad Co., 224 F.2d 198 (2d Cir.1955), cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956). There, the Second Circuit held that “[t]he ultimate, determination of multiplicity of claims must rest in every case on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced." Id. at 199 (emphasis added). This definition has been cited with approval by this circuit. Pitney Bowes Inc. v. Mestre, 701 F.2d 1365, 1369 n. 8 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983). Indisputably, each of the fifty-nine claims presented by petitioner in the habeas petition before us could have been enforced by petitioner in a separate habeas corpus proceeding.8 Each, therefore, constituted a separate claim for relief9 which the district court was re*542quired to dispose of if it wished to fashion a final appealable order.
Finally, if the majority, in an attempt to support its position that the district court’s order was final, were to characterize the habeas petition before us as “one claim,” with the fifty-nine constitutional violations petitioner alleges being defined as merely “grounds,” it would be required to hold (although it expressly refuses to do so) that a decision of the district court denying a writ, because those constitutional errors it chose to consider were without merit, is a final order. For in such a situation the district court would have disposed of the “one claim” presented. To hold otherwise, the majority would be required to define an alleged constitutional violation as a “claim” when the writ is denied, but as a “ground” when the writ is granted. This would defy logic. Moreover, the treatment of a district court order denying the writ as final, even though it did not reject all of the petitioner’s points of constitutional error as meritless, would directly conflict with the holding in Collins v. Miller, supra. The characterization of a habeas petition as one claim is, therefore, unsupportable.
We are thus left with the majority’s only argument for reconciling its opinion with the definition of finality the Supreme Court set forth in Andrews v. United States and Collins v. Miller: that this precedent was intended to apply only when the district court denies the writ. This argument dissolves, however, when one. considers the important federal-state relations policies the final judgment rule fosters in habeas corpus cases; to carve out an exception to the final judgment rule for cases in which the district court grants the writ would do violence to these policies.
Habeas corpus proceedings are, by their nature, disruptive of a state’s administration of its system of criminal justice. Until such proceedings have been concluded, they cast doubt on a prisoner’s conviction and interfere with the state’s administration of its corrections program. Our procedures for handling habeas petitions are designed, in part, to minimize such disruption. For example, our rules discourage untimely and successive petitions, see Rule 9, Delayed or Successive Petitions, Rules Governing Section 2254 Cases, 28 fol. § 2254 (1982), and we emphasize the importance of litigating all of a petitioner’s claims in one habeas proceeding, both at the trial and appellate levels. See Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) (“To the extent that the exhaustion requirement reduces piecemeal litigation, both the courts and the prisoner should benefit, for as a result the district *543court will be more likely to review all of the prisoner’s claims in a single proceeding, thus providing for a more focused and thorough review.”); Galtieri v. Wainwright, 582 F.2d 348, 356 (5th Cir.1978) (en banc).
Obviously, these doctrines facilitate the administration of justice in the federal system as well as in the state’s. First, they enable the federal system to conserve judicial and parajudicial resources, in that the trial and appellate courts need familiarize themselves with a petitioner’s case. but once. Second, as the Court in Rose emphasized, a one-proceeding treatment of a petitioner’s case enables a more thorough review of his claims, thus enhancing the quality of the judicial product. In this respect, the petitioner and the state are the primary beneficiaries.
The majority’s new final judgment rule will, if implemented, plainly impede the attainment of these important goals. In making this statement I acknowledge that the majority’s result in this ease appears, initially at least, to achieve these goals: the petitioner will receive a speedy trial and the finality of his state criminal prosecution will be accelerated. I submit, however, that it might not. There is always the possibility that the majority’s result will be short-lived; it is subject to reversal by this court sitting en banc or the Supreme Court.
The majority apparently has not considered the mischief its rule will work in cases in which the district court’s grant of the writ is reversed.10 In such cases, the district court, on remand, will have to re-familiarize itself with the petitioner’s claims, and it could repeat the process we have here. It could pick and choose among the petitioner’s remaining claims and litigate those appearing to be most meritorious. If it found one justifying the issuance of the writ, it could, in an effort to conserve time and resources for example,11 leave the remainder for another day; hence, the tortuous cycle I have described could begin anew.
The foregoing analysis of the majority’s new final judgment rule, which could be extended, makes it clear, I suggest, that the Supreme Court would apply its definition of finality, as set forth in Andrews v. United States and Collins v. Miller, to cases, like this one, in which the district .court issues the writ on the basis of one or two of many constitutional claims. Accordingly, we should dismiss this petition for want of jurisdiction.
II.
Although I am convinced that we do not have a final judgment before us and therefore lack jurisdiction to entertain this appeal, I must address the majority’s treatment of petitioner’s claims. With respect to the two claims challenging petitioner’s *544conviction, I proceed first to the threshold procedural default — cause and prejudice issue,12 then to the constitutional rules the majority has fashioned. I would not decide the third claim; it should be remanded for further proceedings.
A.
In his habeas petition to the district court, petitioner presented fifty-nine claims; they are set out in the margin. See supra note 2.- The district court decided only one of these, that petitioner was denied the effective assistance of counsel because his attorney failed to uncover and present mitigating evidence at the sentencing phase of his trial.13 The district court also decided two claims petitioner did not present to the Georgia courts or raise in his petition:14 that petitioner had been denied both the effective assistance of counsel and due process of law because, as a direct result of the State’s conduct, the court-appointed psychiatrist’s examination of petitioner and diagnosis of his mental state at the time of the offense were inadequate. Because these two claims had not been presented to the Georgia courts, the district court’s first task, and ours as well, was to inquire whether the claims could be considered “exhausted,” see 28 U.S.C. §§ 2254(b) and (c) (1982); for, if they were not, the dismissal of the petition was in order. See Rose v. Lundy, 455 U.S. 509, 102. S.Ct. 1198, 71 L.Ed.2d 379 (1982) (district courts must dismiss mixed petitions, containing both exhausted and unexhausted claims); Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978) (en banc). This inquiry was not made. Had it been made, it would have disclosed that these claims were exhausted, because it is clear that the Georgia courts would no longer consider them.15 The superior court had already dismissed as successive a habeas corpus petition alleging claims closely akin to these16 and, the Georgia Supreme Court having affirmed, would undoubtedly dismiss as successive another similar petition. In sum, the district court, after concluding the evidentiary hearing in this case, raised sua sponte and without notice to either party17 two exhausted but procedurally defaulted claims.
A federal district court cannot entertain the merits of a procedurally defaulted claim on habeas corpus unless the court first determines that the petitioner had a justifiable reason for not having raised the claim in state court. In the case at hand, neither the district court nor the majority has acknowledged this rule. The Supreme Court has spelled out two ways in which the existence of such a justifiable reason can be established. In Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), the Court held that a justifiable reason will be presumed unless the State proves that the petitioner’s procedural default constituted a “deliberate bypass” or “knowing waiver” of the state court review process. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), it held that a petitioner can be excused for not presenting his claim to the state courts *545if he proves “cause” for his procedural default and resulting “prejudice.” The question here is which of these tests should have dictated the district court’s treatment of the two defaulted claims the district court and the majority have decided.
In Fay v. Noia, the Court held that a defendant who failed to appeal his state court conviction was not barred from prosecuting constitutional claims in a federal habeas action that he could have raised on appeal unless the State established that he had deliberately bypassed or knowingly waived his right to an appeal. Relying on Fay, the Court in Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1074-75 n. 8, 22 L.Ed.2d 227 (1969), said that this deliberate bypass test applied where a federal defendant took an appeal but failed to raise the claim he subsequently presented on collateral attack. This deliberate bypass test appears to have applied, with only rare exception,18 in all procedural default cases until the Court’s decision in Wainwright v. Sykes.19
In Wainwright v. Sykes, the Court reexamined the deliberate bypass test. Sykes, the petitioner, had violated Florida’s contemporaneous objection rule by failing to object at trial to the introduction of his allegedly involuntary confession into evidence. He first raised his objection when, after an unsuccessful appeal, he moved the state trial court to set aside his conviction. That court refused to consider the objection, and thus denied petitioner’s motion, on the ground that petitioner had waived it by not timely raising it at trial. On appeal, the Florida Supreme Court affirmed.
Sykes then sought federal habeas corpus review of the validity of his confession. The district court, applying Fay’s deliberate bypass test, issued the writ, ordering the state trial court to hold a hearing on the voluntariness of his confession. We affirmed. Wainwright v. Sykes, 528 F.2d 522 (5th Cir.1976). On certiorari, the Supreme Court held that Sykes could not litigate the merits of his objection in federal habeas proceedings because he had not shown “cause” for failing to comply with Florida’s contemporaneous objection rule and “prejudice” resulting from the admission of his confession into evidence. The Court rejected the “sweeping language” of Fay v. Noia, which previously might have been thought “to lay down an all-inclusive rule” that state procedural rules were “ineffective to bar review of underlying federal claims in federal habeas proceedings— absent ‘knowing waiver’ or ‘deliberate bypass.’ ” Wainwright v. Sykes, 433 U.S. at 85, 87-88, 97 S.Ct. at 2505, 2507. The Court, however, did not disturb the application of the Fay test to its facts, failure to appeal; it rejected only the deliberate bypass test as it might apply in other contexts. Id. at 87-88 n. 12, 97 S.Ct. 2507 n. 12. The Court limited its Sykes holding to the facts before it, though, stating, in passing, that it would not “paint with a ... broad brush” as it had in Fay v. Noia. Id.
It is thus clear that the Court in Wainwright v. Sykes cut back significantly on the application of the “deliberate bypass,” “knowing waiver” test to procedurally defaulted claims. It is also clear that a petitioner who has failed to comply with a state’s contemporaneous objection rule must now demonstrate “cause” and “prejudice” before a federal habeas court can address his objection. The Court has yet to *546decide explicitly, however, whether the “cause” and “prejudice” test applies in the context here, where a petitioner invokes state remedial procedures but prevents the state courts from passing on his claim by failing to raise it seasonably. There is, however, good reason to believe that the Court, in a case such as ours, would apply the Wainwright v. Sykes test, rather than that of Fay v. Noia. Chief Justice Burger’s concurrence in Wainwright v. Sykes and his subsequent opinion for the Court in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), provide some guidance as to how the Court might resolve this issue.
In his concurrence in Wainwright v. Sykes, the Chief Justice stated that the “deliberate bypass,” “knowing waiver” test applied only to fundamental decisions, such as whether to waive counsel, plead guilty, waive a jury, testify, or take an appeal, in which the defendant, with appropriate counseling, is competent to and should participate. 433 U.S. at 92, 97 S.Ct. at 2509. In this type of decision, a waiver test can readily, and feasibly, be applied. These decisions, with perhaps one exception — the decision to testify, are uniformly made after the trial judge has addressed the defendant in open court and are a matter of record, again perhaps with one exception— the decision to appeal. Whether the defendant has waived an objection in these situations is thus an issue that can easily be resolved by consulting the court’s record or conducting a brief evidentiary hearing. By contrast, decisions which are generally entrusted to an attorney, such as what defenses to develop, when to object, which witnesses to examine, and what errors to cite on appeal or in a habeas petition, are either beyond the competence of even a “counseled” layman or must be made so immediately that the defendant could not knowingly and intelligently make a waiver. Thus, to apply the Fay test to these situations would be a useless act; for the State could rarely if ever prove a waiver. The Fay test is therefore unworkable in these instances.
In Jones v. Barnes, the Chief Justice, writing for the Court, expanded on this idea. There, the habeas petitioner claimed that his appellate counsel had been constitutionally ineffective because he had refused to raise on appeal several issues that petitioner felt had merit. The Court denied his claim. Citing his concurrence in Sykes, the Chief Justice stated that, although an accused has the right to make certain fundamental decisions, such as whether to plead guilty, waive a jury, testify on his own behalf, or take an appeal, he does not have the right to make his lawyer press certain claims on appeal, even if they are nonfrivolous. 463 U.S. at —, 103 S.Ct. at 3312. He went on to state that such decisions are a matter of “professional judgment,” id. at-, 103 S.Ct. at 3314; only counsel has the superior ability to examine the record, research the law and marshal his client’s arguments. Id. at -, 103 S.Ct. at 3312. Drawing on the Jones opinion, one could make a cogent argument that the Court would apply the Wainwright v. Sykes “cause” and “prejudice” test to the situation presented in the case now before us because, as the Chief Justice pointed out in Jones, whether to raise a claim on appeal is a decision that only a lawyer is competent to make.
Putting aside, however, the argument that the application of the Wainwright v. Sykes and Fay v. Noia tests hinges on the type of “decision” involved, I believe the Supreme Court would apply the former test to the type of procedural default at hand because it provides a superior method for furthering several important federal-state relations goals implicated in habeas corpus proceedings. The Wainwright v. Sykes test was fashioned in large part to advance these goals; the Fay v. Noia test would frustrate them, especially in the situation here.
State procedural default rules which focus and bear directly on counsel’s exercise of professional judgment, serve a salutary purpose in the a,ciministration of criminal justice. By requiring counsel to present his objections in an adequate and timely manner or else suffer their waiver, these *547rules enable the state trial and appellate courts to deal with a litigant’s objections at the most ideal moment, when the issue is fresh and the least onerous and costly remedy is available. These rules improve the quality of counsel’s professional performance and of justice and bring finality to the cause. It requires no subtle analysis to conclude that the “deliberate bypass,” “knowing waiver” test, applied to the briefing or argument of an appeal or the pleading and prosecution of a habeas petition would encourage unethical conduct and “sandbagging” by counsel, deprive the state courts of valuable tools for surfacing and dealing with federal constitutional issues, and make a mockery of the doctrine of finality in state criminal prosecutions. This prospect is, in my view, why we concluded in Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981), that the “cause” and “prejudice” test is applicable to the sort of lawyer decision making the Chief Justice referred to in Wainwright v. Sykes and Jones v. Barnes. There we held that a state prisoner, absent a showing of “cause” and “prejudice,” could not raise a claim in federal habeas proceedings that he had failed to raise in his direct state court appeal from his conviction, in view of a Florida procedural rule that treated such a failure as a waiver.20
The procedural default rule the Georgia courts applied in the case at hand, the rule against successive petitions, deserves the same respect we gave the Florida waiver rule in Huffman v. Wainwright. Georgia’s treatment of successive petitions is by no means peculiar to Georgia; we treat successive habeas petitions similarly. See Rule 9, Delayed or Successive Petitions, Rules Governing Section 2254 Cases, 28 fol. § 2254 (1982).
In summary, because petitioner has altogether failed to show either any “cause” for failing to raise in his direct appeal and his first state habeas petition the ineffective assistance and due process claims the district court and the majority have decided and, further, because petitioner failed to present one whit of evidence in the evidentiary hearing below that he was “prejudiced” 21 by the State’s failure to appoint or to provide funds for an independent psychiatrist or by the State’s failure to ensure that the court-appointed psychiatrist provided an adequate examination and testimony with respect to petitioner’s sanity at the time of the offense, these claims should be denied.
B.
The starting point of the majority’s analysis of the merits of the first two claims reviewed is that an indigent defendant has a due process right to a psychiatric opinion as to his sanity at the time of the offense for which he stands charged. In this case, the trial judge attempted to accord petitioner that right by appointing a psychiatrist, Dr. Miguel A. Bosch, to examine petitioner to determine both his competency to stand trial and his sanity at the time of the offense. Dr. Bosch examined petitioner and well in advance of trial issued a report in which he stated that petitioner was competent to stand trial. No one takes issue with this opinion. Dr. Bosch also stated, in his report, that he could not determine whether petitioner was sane at the time of the offense. He had been unable to form an opinion on this issue, he said, because, during his examination of petitioner, petitioner told him that he was suffering from a total memory loss; he could not recall any of the events surrounding Tiffany Loury’s homicide, even his act of throwing Tiffany off the Talmadge Memorial Bridge *548into the Savannah River. The occasion of Dr. Bosch’s examination appears to have been the only time petitioner suffered such a memory loss.
At petitioner’s trial, the prosecutor, in the State’s case in chief, put Dr. Bosch on the stand.22 He stated once again that he had no opinion as to petitioner’s sanity at the time of the offense. On cross-examination, petitioner’s attorney handed him the transcript of a confession petitioner had made shortly after the murder and a suicide note he had given his jailer. Dr. Bosch had not seen either of these documents beforehand. Counsel then asked him if petitioner’s utterances in these documents were psychiatrically significant, and he said they were. During the extended colloquy that followed, in which counsel tried to get Dr. Bosch to say that petitioner was insane at the time of the murder, Bosch continued to adhere to his prior statement, that he had no opinion as to petitioner’s sanity at the time of the offense.
The majority faults the State for not providing Dr. Bosch, prior to trial, with the transcript of petitioner’s confession and sjuicide note because, as it turned out, the contents of these documents were, as Bosch put it, “psychiatrically significant.” To remedy this conduct, both here and in future cases, the majority fashions the following constitutional rule. Whenever the court appoints a psychiatrist to determine the defendant’s sanity at the time of the offense, the State becomes obligated to provide the psychiatrist, on its own initiative, with any information that might prove to be psychiatrically significant on the sanity issue, and this obligation continues throughout the criminal prosecution.23 To ensure the State’s compliance with this rule, the majority holds that, if the State fails to provide the psychiatrist psychiatrically significant information as to the defendant’s sanity at the time of the offense, defense counsel will be deemed ineffective as a matter of law and the defendant’s conviction must be set aside.24
*549The district court, and the majority, have fashioned this rule and remedy out of their concern that the defendant receive a fair trial. In this case, they have concluded that petitioner’s trial was rendered unfair because Dr. Bosch did not have the withheld information sufficiently in advance of testifying to enable him to give it the sort of deliberate consideration the majority thinks was necessary. They have drawn this conclusion purely from their own lay assessment of what was, and is, vital to the rendition of an expert psychiatric opinion of the specie Dr. Bosch was asked to give. I say this because there is nothing whatever in the record indicating that Bosch would have testified any differently than he did had the State made the information in question available to him at an earlier time.25
Dr. Bosch’s opinion was that he could not say with the requisite certainty (the law requires for expert psychiatric opinion testimony to be probative) whether the defendant was sane or insane at the time of the offense. Contrary to what I perceive to be the majority’s view, this constituted an opinion on the issue. It is not unusual for a psychiatrist, or any other expert, to say that he cannot form an opinion about an event he did not witness or experience. The majority observes that “Dr. Bosch was under a court order to express an opinion as to Blake’s sanity at the time of the offense.” Ante at 532. That may be, but a court cannot order an expert witness to give an opinion that he simply cannot give without doing violence to his professional judgment and integrity. It requires no citation of authority to say that competent, well-informed psychiatrists are sometimes Unable to say whether a defendant was insane when he committed his crime.
Petitioner has shown no prejudice of any kind resulting from Dr. Bosch’s examination and opinion testimony. He has never presented any testimony, or even a proffer, from Dr. Bosch — to the Georgia courts or to us — to the effect that he was insane at the time of the offense. Nor has he presented the testimony, or proffer, of any other psychiatrist, psychologist, or even a lay person, that he was insane. Surely petitioner could have made such a presentation.
A psychiatric opinion as to petitioner’s mental or emotional state at the time of the offense, whether given by Dr. Bosch or anyone else, would have to be based on a hypothetical question, since the witness would have no personal knowledge of the criminal episode and thus could not testify about it absent an assumed set of facts. Petitioner was, and is, the only living witness to the murder of Tiffany Loury. Petitioner, alone, was, and is, in control of the facts of the crime. Even today, Dr. Bosch presumably could respond to a hypothetical question as to petitioner’s sanity; Bosch could add whatever facts petitioner cared to have him assume, including the statements contained in his confession and suicide note, to the findings he made when he examined petitioner and attempt to formulate an opinion as to whether petitioner was sane or insane when he committed the offense. Thus, there is no need in this case conclusively to presume prejudice, as the district court and majority have done, either on the ground that the cost of establishing prejudice, or a lack thereof, at this date is too great or it is incapable of demonstration. There are other reasons, however, why we should require the petitioner to show prejudice in a case of this sort. A brief review of the events that took place between the murder, on November 15, 1976, and the trial, which began on February 13, 1977, makes this clear.
The murder occurred at the end of an evening of bar hopping during which petitioner and the victim’s mother had been quarreling. According to the evidence ad*550duced at trial, petitioner kidnapped and killed Tiffany Loury either to get even with her mother or to save Tiffany from her parents, who, petitioner testified, were unfit to raise her. The first reason was quite plausible, for petitioner had previously threatened to kill his two-year-old son, in front of his seven months pregnant wife, the mother of the child, because she had spurned him. He did not carry out this threat; instead, he stabbed his wife.
The record does not inform us as to when the court appointed attorney Reginald Haupt to defend petitioner, but I assume that it was well before December 3, 1976, when Dr. Bosch examined petitioner at the Central State Hospital at Milledgeville, Georgia, pursuant to the trial court’s order. The court apparently entered the order at Haupt’s request, although we do not know whether the court took this action because Haupt filed a special plea of insanity26 or because he informally requested the examination. The record is also silent as to when Haupt learned that his client had confessed to the murder.
What we do know is that Dr. Bosch, following his psychiatric examination, issued a report containing the opinions I have mentioned and a statement that petitioner declined to tell him anything about the murder; petitioner told Bosch that he could not recall the event. It is clear that attorney Haupt received a copy of that report considerably in advance of trial, but we do not know what communication he may have had with Dr. Bosch thereafter.
Though the record is silent on some of these matters, one thing is clear to me; that is, by the time the trial began Haupt was well prepared to try the guilt phase of the case and to present petitioner’s insanity defense. Haupt’s opening statement, his cross-examination of the State’s case — especially Dr. Bosch — and his direct examination of petitioner during his presentation of the defense’s case indicate to me that Haupt had consulted with petitioner, had prepared to examine Dr. Bosch, and knew full well the limitations of his insanity defense.
The following facts, in particular, argue forcefully against the presumed prejudice the majority embraces. After Dr. Bosch testified on cross-examination (by Haupt) that he had not considered the transcript of petitioner’s confession and his suicide note (because they had not been given to him) when diagnosing petitioner’s mental condition at the time of the offense, Haupt did not request a continuance or even a brief recess to allow Bosch to ponder over the new information; instead, he proceeded with his questioning. Haupt obviously felt it in his client’s best interest to proceed; had a continuance been granted to allow Dr. Bosch more time to reflect, Bosch may well have concluded that petitioner was sane at the time of the offense. By foreclosing this damaging scenario from occurring, counsel was able to get Bosch to say that he could not render an opinion with reasonable certainty and to concede that petitioner might have been insane if what he said in his confession was true.
It is also important to note that, when Dr. Bosch left the witness stand, the defense did not ask him to remain in the courtroom to hear the evidence27 or to make himself available to testify as a defense witness. Mr. Haupt could have conferred with Dr. Bosch further and then, after petitioner took the stand and revealed the details of the murder, elicited Dr. Bosch’s opinion as to petitioner’s sanity at the time of the offense. Conceivably, petitioner’s courtroom revelations could have formed the basis of a more complete hypothetical question to the psychiatrist than the one Haupt put to him earlier, in the *551State’s ease in chief. Counsel chose not to pursue this course, however. Once again, he apparently did not want to run the risk of possibly damaging opinion testimony.
We should not presume prejudice in a situation such as this because of the extent to which the defendant has control over the issue. First, as here, the defendant may choose not to tell the psychiatrist anything, especially about the crime.28 Second, his lawyer can keep the psychiatrist in the dark about the facts of the crime and would have every incentive to do so once the psychiatrist has said that the defendant is competent to stand trial and was either sane or of questionable sanity at the time of the offense. For all we know, that occurred here. Third, the defense can ask for a continuance or a recess to give the psychiatrist time adequately to consider the newly disclosed “psychiatrically significant” evidence and to eliminate the fairness problem the majority perceives.
Another reason why prejudice should not be presumed is that the burden such a presumption would place on the State would be intolerable. The State has to marshal at its peril the “psychiatrically significant information” on the insanity issue. It must divine what is and is not pertinent, and it must do so until the trial is over.29 To satisfy the State’s burden, the prosecutor must have continuous access to the psychiatrist, and he must compare the psychiatrist’s information with his to ensure that the psychiatrist has all the facts.
If the foregoing practical and policy considerations do not counsel the rejection of the majority’s position, then I suggest that Supreme Court precedent does. United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), decided the same day, reiterate the long standing rule that prejudice is an indispensable element of an ineffective assistance of counsel claim, except in those few situations where the State’s conduct has operated to deny the defendant his right to counsel altogether or has undermined his lawyer’s performance to such an extent “that the trial cannot be relied on as having produced a just result.” Washington, 104 S.Ct. at 2064. We cannot presume that this occurred in petitioner’s case; accordingly, were I to reach the merits of the claims under examination, I would reject them for want of prejudice.30
C.
The district court concluded that Reginald Haupt denied petitioner effective assistance of counsel in the sentencing phase of the case. Haupt’s performance, the court found, was woefully inadequate because he did not prepare in any way to present mitigating evidence in petitioner’s behalf. He “was not functioning as the ‘counsel’ guaranteed [the petitioner] by the Sixth Amendment.” Washington, 104 *552S.Ct. at 2064. This portion of the court’s holding is on sound footing; Haupt admitted that he was unprepared for the sentencing phase.
Having reached this conclusion, the district court next determined whether a showing of prejudice was necessary. It is at this point that the court erred. The court observed that “a credible, if hardly overwhelming showing of prejudice” had been made out because mitigating evidence was available and was not presented. Blake, 513 F.Supp. at 780. It refused to engage in “nice distinctions” about the effect such mitigating evidence might have had, however, concluding that it was sufficient that “[cjounsel’s conduct was clearly not ‘harmless beyond a reasonable doubt.’ ” Id. at 781. As the majority correctly observes, “[t]he district court determined that Haupt’s error was prejudicial per se.” Ante at 533.
The fact that defense counsel failed to develop and present to the sentencer (the jury in this case) mitigating evidence does not create a presumption, much less a con-clusive presumption, that the defendant was prejudiced. Strickland v. Washington, 104 S.Ct. at 2064. The majority agrees. Ante at 533-534. Rather, the defendant must demonstrate that there is a “reasonable probability that, but for counsel’s unprofessional errors, the results of the proceedings would have been different.” Id. 104 S.Ct. at 2068. A court cannot find such a “reasonable probability” without weighing the mitigating evidence against the aggravating evidence that supports the imposition of the death penalty. Because the district court failed to perform this essential task, I would remand this ineffective assistance claim for reconsideration under Washington’s test.31
. 28 U.S.C. § 1291 (1982) provides, in pertinent part:
§ 1291. Final decisions of district courts
The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.
A final decision of the district court granting or denying a writ of habeas corpus is obviously a final decision described in section 1291.
28 U.S.C. § 2253 (1982) also gives the courts of appeals authority to review, on appeal, "the final order” of a district court in a habeas corpus action brought by a state prisoner. The petitioning state prisoner may not prosecute an appeal, however, "unless the justice or judge who rendered the order [sought to be reviewed] or a circuit justice or judge issues a certificate of probable cause.” Id. This requirement operates to limit the court of appeals’ appellate authority under both .sections 1291 and 2253.
. In his petition to the district court, petitioner did not present his claims in separate paragraphs. See Rule 2(c), Form of Petition, Rules Governing Section 2254 Cases (and accompanying Advisory Committee Note and form petition at paragraph 12), 28 U.S.C. fol. § 2254 (1982). See also Fed.R.Civ.P. 10(b); Rule 11, Federal Rules of Civil Procedure; Extent of Applicability, Rules Governing Section 2254 Cases, 28 U.S.C. fol. § 2254 (1982) (Federal Rules of Civil Procedure made applicable to habeas corpus proceedings to extent not inconsistent with the habeas rules and “when appropriate.”) Rather, he combined many of his claims, especially those derived from common operative facts, in *536a single allegation. Petitioner’s habeas petition, as I read it, stated the 59 claims that follow; the first 12 attacked petitioner’s murder conviction, the remainder challenged his sentence.
1. The trial court’s imposition of petitioner’s judgment of conviction denied petitioner due process of law, in violation of the fourteenth amendment, because it was based on evidence from which no rational trier of fact could have found petitioner guilty beyond a reasonable doubt.
2. The trial court denied petitioner a fair trial, in violation of the Due Process Clause of the fourteenth amendment, by refusing to provide petitioner’s court-appointed attorney funds to hire an investigator and expert witnesses to assist in the preparation and presentation of his defense.
3. The trial court denied petitioner the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, by refusing to provide petitioner's court-appointed attorney funds to hire an investigator and expert witnesses to assist in the preparation and presentation of his defense.
4. The trial court denied petitioner a fair trial, in violation of the Due Process Clause of the fourteenth amendment, by refusing to provide petitioner’s court-appointed attorney funds to hire a psychiatrist to examine petitioner for the purpose of determining whether petitioner was insane when he committed the homicide charged and, if so, testifying to that effect at trial.
5. The trial court denied petitioner the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, by refusing to provide petitioner’s court-appointed attorney funds to hire a psychiatrist to examine petitioner for the purpose of determining whether petitioner was insane when he committed the homicide charged and, if so, testifying to that effect at trial.
6. The prosecutor denied petitioner a fair trial, in violation of the Due Process Clause of the fourteenth amendment, by preemptorily challenging, during the voir dire examination of the jury venire, every prospective juror having conscientious or religious scruples against capital punishment.
7. The prosecutor denied petitioner his sixth and fourteenth amendment right to a jury representing a fair cross section of the community by systematically excluding, in the exercise of his preemptory challenges, every prospective juror having conscientious or religious scruples against capital punishment.
8. The trial court denied petitioner a fair trial, in violation of the Due Process Clause of the fourteenth amendment, by excusing for cause, during the voir dire examination of the jury venire, persons having conscientious or religious scruples against capital punishment.
9. The trial court denied petitioner his sixth and fourteenth amendment right to a jury representing a fair cross section of the community by excusing for cause prospective jurors having conscientious or religious scruples against capital punishment.
10. Petitioner was denied the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, because his court-appointed attorney failed timely to present claims 1 through 9 above to the Georgia courts.
11. Petitioner was denied the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, because his court-appointed attorney failed to order counsel’s closing arguments to the jury transcribed for appellate review.
12. The Georgia death penalty sentencing scheme operates as a denial of due process in violation of the fourteenth amendment, and thus could not be applied in petitioner’s case, because it lacks a rational justification as a penal sanction.
13. The Georgia death penalty sentencing scheme is cruel and unusual, in violation of the eighth and fourteenth amendments, and thus could not be applied in petitioner’s case, because it lacks a rational justification as a penal sanction.
14. The Georgia death penalty sentencing scheme is unconstitutional, and thus could not be applied in petitioner’s case, because it systematically results in the imposition of death sentences on account of the accused’s and/or his victim’s race, sex, and socioeconomic status, in violation of the Due Process Clause of the fourteenth amendment.
15. The Georgia death penalty sentencing scheme is unconstitutional, and thus could not be applied in petitioner’s case, because it systematically results in the imposition of the death sentence on account of the accused's and/or his victim's race, sex, and socioeconomic status, in violation of the eighth and fourteenth amendments.
16. The Georgia death penalty scheme is unconstitutional, and thus could not be applied in petitioner's case, because the state applies it in an arbitrary and capricious manner, in violation of the Due Process Clause of the fourteenth amendment.
17. The Georgia death penalty sentencing scheme is unconstitutional, and thus could not be applied in petitioner’s case, because the state applies it in an arbitrary and capricious manner, in violation of the eighth and fourteenth amendments.
18. The Georgia death penalty sentencing scheme is unconstitutional, and thus could not be applied in petitioner’s case, because its provisions for appellate review are fundamentally unfair, in violation of the Due Process Clause of the fourteenth amendment.
19. The Georgia death penalty sentencing scheme is unconstitutional, and thus could not be applied in petitioner’s case, because its provisions for appellate review are fundamentally *537unfair, in violation of the eighth and fourteenth amendments.
20. The trial court's imposition of petitioner’s death sentence denied petitioner due process of law in violation of the fourteenth amendment, because it was based on evidence from which no rational trier of fact could have found the aggravating circumstance described in Ga.Code § 27-2534.1(b)(7) (now codified at Ga.Code Ann. § 17-10-30(b)(7).
21. The trial court’s imposition of petitioner’s death sentence was cruel and unusual, in violation of the eighth and fourteenth amendments, because it was based on evidence from which no rational trier of fact could have found the aggravating circumstance described in Ga. Code § 27-2534.1(b)(7) (now codified at Ga. Code Ann. § 17-10-30(b)(7).
22. Ga.Code § 27-2534.1(b)(7) (now codified at Ga.Code Ann. § 17-10-30(b)(7) ("The offense of murder ... was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim”), which provided the aggravating circumstance on which the jury based its recommendation that petitioner receive the death penalty, is vague and overbroad, thus rendering petitioner’s death sentence cruel and unusual, in violation of the eighth and fourteenth amendments.
23. Ga.Code § 27-2534.1(b)(7) (now codified at Ga.Code Ann. § 17-10-30(b)(7) (“The offense of murder ... was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim”), which provided the aggravating circumstance on which the jury based its recommendation that petitioner receive the death penalty, is vague and overbroad, thus rendering petitioner’s death sentence arbitrary and capricious, in violation of the Due Process Clause of the fourteenth amendment.
24. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, in refusing to provide petitioner’s court-appointed attorney funds to hire an investigator and expert witnesses to assist in the preparation and presentation of mitigating evidence.
25. The trial court denied petitioner the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, by refusing to provide petitioner’s court-appointed attorney funds to hire an investigator and expert witnesses to assist in the preparation and presentation of mitigating evidence.
26. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by refusing to provide petitioner's court-appointed attorney funds to hire a psychiatrist to examine petitioner for the purpose of preparing and presenting mitigating evidence.
27. The trial court denied petitioner the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, by refusing to provide petitioner’s court-appointed attorney funds to hire a psychiatrist to examine petitioner for the purpose of preparing and presenting mitigating evidence.
28. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by refusing to grant petitioner a continuance following the rendition of his guilty verdict so as to allow his court-appointed attorney time to prepare for the penalty phase of the trial.
29. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court refused to grant petitioner a continuance following the rendition of his guilty verdict so as to allow his court-appointed attorney time to prepare for the penalty phase of the trial.
30. The prosecutor denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by peremptorily challenging, during the voir dire examination of the jury venire, every prospective juror having conscientious or religious scruples against capital punishment.
31. The prosecutor denied petitioner his sixth and fourteenth amendment right to a jury representing a fair cross section of the community by systematically excluding, in the exercise of his peremptory challenges, every prospective juror having conscientious or religious scruples against capital punishment.
32. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by excusing for cause, during the voir dire examination of the jury venire, persons having conscientious or religious scruples against capital punishment.
33. The trial court denied petitioner his sixth and fourteenth amendment right to a jury representing a fair cross section of the community by excusing for cause prospective jurors having conscientious or religious scruples against capital punishment.
34. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by imposing the petitioner’s death sentence without considering mitigating evidence.
35. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because it was imposed without the jury’s or the court’s consideration of mitigating evidence.
36. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by failing to instruct the jury as to the mitigating circumstances disclosed by the evidence.
37. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court *538failed to instruct the jury as to the mitigating circumstances disclosed by the evidence.
38. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by failing to instruct the jury as to the relationship between aggravating and mitigating circumstances.
39. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court failed to instruct the jury as to the relationship between aggravating and mitigating circumstances.
40. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by failing to instruct the jury that mitigating circumstances could outweigh aggravating circumstances and thus require the jury to recommend the imposition of a life sentence rather than the death penalty.
41. Petitioner's death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court failed to instruct the jury that mitigating circumstances could outweigh aggravating circumstances and thus require the jury to recommend the imposition of a life sentence rather than the death penalty.
42. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by failing to instruct the jury that its sentencing recommendation was not advisory but, instead, was binding on the trial court or sentencer.
43. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court failed to instruct the jury that its sentencing recommendation was not advisory but, instead, was binding on the trial court or sentencer.
44. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, because its charge to the jury indicated that petitioner would not be executed if the jury recommended the death penalty.
45. Petitioner's death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court’s charge to the jury indicated that petitioner would not be executed if the jury recommended the death penalty.
46. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, because its charge to the jury, considered as a whole, was so inadequate as to render petitioner's sentencing proceeding arbitrary and capricious.
47. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court's charge to the jury, considered as a whole, was so inadequate as to render petitioner's sentencing proceeding arbitrary and capricious.
48. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, because it gave petitioner a disproportionate sentence, one more severe than the sentences received by similarly situated offenders committing similar homicides.
49. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because it is disproportionate and more severe than the sentences received by similarly situated offenders committing similar homicides.
50. The trial court denied petitioner a fair sentencing proceeding, in violation of the Due Process Clause of the fourteenth amendment, by sentencing petitioner to death on account of his and/or his victim’s race, sex, and poverty.
51. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the trial court sentenced petitioner to death on account of his and/or his victim's race, sex, and socioeconomic status.
52. The Georgia Supreme Court denied petitioner a fair and adequate proportionality review of his sentence, in violation of the Due Process Clause of the fourteenth amendment.
53. Petitioner’s death sentence is cruel and unusual, in violation of the eighth and fourteenth amendments, because the Georgia Supreme Court denied petitioner a fair and adequate proportionality review of his sentence.
54. The State of Georgia will deny petitioner due process of law, in violation of the fourteenth amendment, by putting him to death by electrocution.
55. The State of Georgia will impose cruel and unusual punishment upon petitioner by putting him to death by electrocution.
56. Petitioner was denied the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, because his court-appointed attorney failed timely to present claims 12 through 55 above to the Georgia courts.
57. The petitioner was denied the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, because his court-appointed attorney failed to move the trial court for a continuance after the rendition of the verdict of guilt so that he could prepare for the sentencing proceedings that followed.
58. The petitioner was denied the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, because his court-appointed attorney failed to uncover and present to the jury and sentencing judge available evidence in mitigation.
59. Petitioner was denied the effective assistance of counsel, guaranteed him by the sixth and fourteenth amendments, because his court-appointed attorney failed to order the prosecutor’s closing arguments to the jury transcribed for appellate review.
*539These claims, though not framed precisely as I have stated them, have been exhausted within the meaning of 28 U.S.C. §§ 2254(b) and (c) (1982). Claims 1, 16, 17, 20, 48, and 50 were presented to and decided by the Supreme Court of Georgia on petitioner's direct appeal from his conviction and death sentence. Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977). Petitioner raised claims 12 through 19, 28 through 33, 48 through 51, 52, and 53 in his petition for a writ of habeas corpus to the Superior Court for Tattnall County, Georgia on March 7, 1978. That court, after an evidentiary hearing, denied the petition in a written order on August 17, 1978, and the Georgia Supreme Court, on January 11, 1979, refused to issue a certificate of probable cause to appeal. Petitioner presented claims 1, 6, 8, 12, 13, 16 through 20, 32, 48, 49, 52, and 53 to the Chatham County Superior Court (where he had been convicted and sentenced) in an extraordinary motion for a new trial on April 2, 1979. The court denied his motion following an evidentiary hearing on April 13, 1979, and the Georgia Supreme Court affirmed. Blake v. State, 244 Ga. 466, 260 S.E.2d 876 (1979). Petitioner’s remaining claims were presented to the Georgia courts in his petition for a writ of habeas corpus to the Butts County Superior Court. That court refused to consider these claims on their merits, dismissing the petition as successive on September 2, 1980. The Georgia Supreme Court declined to review this disposition by denying petitioner a certificate of probable cause to appeal on September 4, 1980.
Two of the three claims decided by the district court in this case have never been raised by petitioner in any court. Petitioner did not present them to the Georgia courts or set them forth in his petition to the district court. And he did not raise them at the evidentiary hearing below. They were not articulated, as far as I can discern, until the district court entered the order now before us. Nonetheless, these two claims, (1) that petitioner was denied due process of law because his state-provided psychiatrist’s examination and resulting opinion as to his sanity at the time of the offense were inadequate and (2) that petitioner was denied effective assistance of counsel because the State's conduct prevented counsel from developing an insanity defense, must be deemed to have been exhausted for it is clear that the Georgia courts would not hear them on their merits.
. See supra note 2.
. See supra note 2.
. The two procedurally defaulted claims are (1) that petitioner was denied due process of law because his court-appointed psychiatrist’s examination and resulting opinion as to his sanity at the time of the offense were inadequate and (2) that petitioner was denied effective assistance of counsel because the State’s conduct prevented counsel from developing an insanity defense. These claims were never presented to the Georgia courts, and petitioner did not raise them in his petition to the district court. See supra note 2. They first appeared in the district court’s memorandum order granting the writ, Blake v. Zant, 513 F.Supp. 772 (S.D.Ga.1981).
The majority asserts that petitioner need not show "cause” for failing to present these two claims to the Georgia courts (and thus defaulting them) or resulting "prejudice," see Wain*540wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because the State has not pled petitioner’s procedural default as a defense to those claims. The State could not have pled this defense below because the claims did not surface until the district court issued the writ. See infra notes 11 and 17. In fact, one could argue that the first claim did not surface until the majority fashioned its opinion. Under these circumstances, I suggest that the important federal-state policies served by the "cause” and "prejudice” rule, see Part II.B. infra, require us to apply the rule on our initiative.
. The majority apparently reads the district court’s dispositive opinion as deciding only two claims, both questioning the effective assistance of counsel. This is quite understandable because the district court stated that it was only deciding two ineffective assistance of counsel claims. Blake v. Zant, 513 F.Supp. 772, 776 (S.D.Ga.1981). But after demonstrating how the state-appointed psychiatrist's inadequate examination and opinion testimony had rendered petitioner’s attorney ineffective, the district court went on to conclude that petitioner's “denial of expert psychiatric assistance was 'effectively a suppression of evidence violating the fundamental right of due process of law.’ ’’ Id. at 786. I therefore conclude that, in addition to the two ineffective assistance claims it mentioned, the district court also decided one of the due process claims petitioner had alleged, see supra note 2, claim 4, though framing it somewhat differently than petitioner did.
. The Supreme Court’s Collins holding puts to rest the majority's contention that an order is final when the relief requested is finally settled. Ante, al 525. In Collins, the district court’s denial of one of petitioner’s claims meant that petitioner would remain incarcerated even if the district court were to decide that his other two claims had merit. Despite the fact that petitioner’s custodial status could not possibly have been affected by the district court passing on the remaining two claims, the Supreme Court dismissed the case for want of a final order, pending the district court’s determination on these two claims. So too here, despite the fact that the district court would have ultimately granted the writ, even if it had found petitioner’s remaining 58 claims to be without merit, it was still required to dispose of these claims before the order became final. There is nothing in the Supreme Court’s opinion in Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945), cited by the majority to support its final judgment rationale, ante, at 525, that would counsel a different result.
. Of course, the State would no doubt have moved the district court to dismiss every petition subsequent to the first one on the ground the petition was untimely, successive, or an abuse of the writ. See Rule 9, Delayed or Successive Petitions, Rules Governing Section 2254 Cases, 28 U.S.C. fol. § 2254 (1982).
. The 59 constitutional claims stated in petitioner’s habeas petition, see supra note 2, have a variety of factual bases, some mutually exclusive. For example, one claim challenges on due process grounds the sufficiency of the evidence to support petitioner’s murder conviction. Two others challenge the sufficiency of the evidence to support the aggravating circumstance which triggered the imposition of petitioner's death penalty. Eight claims are based on the trial court’s failure to provide petitioner’s counsel *542funds to employ an investigator, expert witnesses and a psychiatrist to assist counsel in the preparation and presentation of petitioner’s insanity defense during the guilt phase of his trial and mitigating evidence in the sentencing phase. Eight other claims deal with the impaneling of the petit jury; petitioner contends that Wither-spoon violations occurred and that, in addition, he was denied a jury representing a fair cross-section of the community.
Petitioner attacks the court’s jury charge at the close of the sentencing phase of the trial on several discrete grounds, each of which, if valid, would require the vacation of his death sentence. He also attacks his sentencing and the Georgia Supreme Court’s review thereof.
Petitioner raises several claims that are not even rooted in his criminal prosecution in the state superior court. He challenges the validity of the Georgia death penalty sentencing scheme on the basis of events that took place in other cases prior to his trial. Finally, petitioner contends that he was denied the effective assistance of counsel because the performance of his court-appointed attorney failed to measure up to the minimum performance required under the Constitution.
It is true that some of petitioner’s 59 claims share a common nucleus of facts, or stem from one transaction, and that one could argue that multiple claims stemming from one set of facts or transaction ought to be treated as one claim for our purposes. For example, petitioner alleges a denial of the effective assistance of counsel and of due process in the trial court’s refusal to give him funds to hire a private psychiatrist. These are separate claims, however. They are not alternative; though their underlying facts are nearly identical, each states an independent claim for relief. But many of petitioner’s claims do not stem from a common nucleus of facts or the same transaction. His attacks on the sufficiency of the evidence to support his conviction and on the Georgia death penalty scheme could not be more illustrative of this point. To treat these claims as one would be to ignore the precedent I have cited.
. In such a case, one might label the court of appeals’ treatment of the merits tentative or provisional, especially if the district court, on remand, found, on reconsideration of the record previously compiled or following a new evidentiary hearing, that the facts on which the court of appeals’ decision was based differed and called for a different conclusion of law. Tentative or provisional decision making by appellate courts has always been disfavored.
. This is precisely what I believe happened in this case. The allegations of Blake’s habeas corpus petition were framed in such a way that it was difficult for the district court to discern what his claims actually were. See supra note 2. From what I can determine from the record, the district court did not hold a pretrial conference, or employ any of the other techniques trial judges use to focus or narrow the issues, in an effort to define petitioner’s claims. The case simply proceeded to an evidentiary hearing. The hearing was brief. As I indicate in the text infra, petitioner’s habeas counsel elicited the testimony of petitioner’s trial attorney, Reginald Haupt, about the state superior court’s policy, at the time of the murder trial, of not providing court-appointed defense counsel with funds to employ a psychiatrist to determine the defendant’s sanity at the time of the offense. Habeas counsel also got Haupt to speculate that a privately hired psychiatrist probably would have helped him fashion and establish petitioner’s insanity defense. But nowhere during the hearing did the court or, for that matter, the parties seek to define petitioner’s claims more clearly. One thing is clear, though; no one articulated the ineffective assistance-due process claims concerning Dr. Bosch’s examination and testimony that the district court, and the majority, have seized upon to vacate petitioner's conviction. See supra note 5.
. See supra note 5.
. See supra note 2, claim 58.
. See supra note 2.
. For an explanation of the difference between waiver and exhaustion, see Engle v. Isaac, 456 U.S. 107, 125-26, 102 S.Ct. 1558, 1570-71, 71 L.Ed.2d 783 (1982), and Darden v. Wainwright, 725 F.2d 1526, 1535 n. 13 (11th Cir.1984) (en banc) (Tjoflat, J., dissenting).
. See supra note 2, claims 2 through 5 and 24 through 27.
. These two claims first appeared in the district court’s dispositive order, 513 F.Supp. 772 (S.D.Ga.1981). See supra note 5. I find no indication in the record, including the transcript of the evidentiary hearing, that, prior to publishing its opinion, the court gave the parties any notice that it was considering these claims. The State therefore had no opportunity prior to the entry of the court’s dispositive order to argue that the court should not consider these procedurally defaulted claims without a demonstration by petitioner of justifiable reason for not having given the Georgia courts an opportunity to pass on them. Of course, the State could have raised this objection in a Fed.R.Civ.P. 59 motion to the district judge, but it apparently chose to appeal instead.
. In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Court held that the petitioner must show "cause" and "prejudice" before a federal habeas court reviewing an application under 28 U.S.C. § 2255 (1982) will hear a claim with regard to which there had been a Fed.R.Crim.P. 12(b)(2) default (failure to challenge by motion before trial). In Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), the Court applied the Davis rule to the parallel case of a state procedural requirement.
. See, e.g., United States ex rel. Kenny v. Follette, 410 F.2d 1276, 1278 (2d Cir.1969), cert. denied, 397 U.S. 940, 90 S.Ct. 951, 25 L.Ed.2d 120 (1970); United States v. Pinto, 394 F.2d 470, 474 (3d Cir.1968); Hale v. Boles, 419 F.2d 389, 389 (4th Cir.1969); Pamplin v. Mason, 364 F.2d 1, 6 (5th Cir.1966); United States ex rel. Miner v. Erickson, 428 F.2d 623, 625 (8th Cir.1970); Curry v. Wilson, 405 F.2d 110, 111 (9th Cir.1968), cert. denied, 397 U.S. 973, 90 S.Ct. 1090, 25 L.Ed.2d 268 (1970).
. The Seventh Circuit has similarly held in Norris v. United States, 687 F.2d 899 (7th Cir. 1982), although the Second Circuit has held that the "deliberate bypass,” "knowing waiver” test remains the standard to be applied. Pacelli v. United States, 588 F.2d 360, 363-65 (2d Cir. 1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979).
. See infra text at 549-551. In this case, the prejudice required under the Wainwright v. Sykes test is, I submit, the same as that required to prove a sixth amendment-due process claim concerning Dr. Bosch’s psychiatric examination and opinion testimony.
. The record does not indicate why the prosecutor called Dr. Bosch as part of the State’s case in chief; the lawyers’ closing arguments to the jury were not made a part of the record in the district court and no explanation appears in the evidentiary hearing held before the district judge. I speculate that the prosecutor simply called Bosch in anticipation of petitioner’s defense, to get the insanity issue out of the way early in the trial, although he ran a substantial risk, which indeed materialized, that petitioner's lawyer, having Bosch on cross-examination, could make some points through leading questions that he could not make on direct examination.
. The majority makes this point unambiguously clear. It states that ”[t]he judge’s order of a psychiatric examination placed a duty upon the prosecution to provide [Dr. Bosch] and the defense with the transcript of [petitioner’s] confession and ... suicide note” even though the defense had not requested such provision, citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Ante ai 532 n. 10. The prosecutor breached this duty, according to the majority, simply by withholding evidence from the psychiatrist which was "psychiatrically significant.” Ante at 531 n. 8.
Brady and Agurs, I submit, are inapposite in this context. First, they deal with evidence "favorable to the defense"; I have considerable difficulty concluding that "psychiatrically significant” material is evidence favorable to the defense. Second, assuming the applicability of this precedent, I would not hold a prosecutor to have denied a defendant due process by failing to produce the defendant’s own statements, especially where, as here, the defendant has made no request for his statements or even for evidence favorable to the defense.
The majority states that the prosecutor’s failure to provide the defense and Dr. Bosch the materials in question "is indicative of bad faith on the pari of the prosecution.” Ante at 532 n. 10. Petitioner has never charged the prosecution with bad faith, and petitioner produced no evidence of bad faith. Prosecutorial bad faith is, simply, not an issue in this case.
. The majority's rule would seem to apply in all cases in which the defendant's guilt turns on his mental status at the time of the offense. If the State withholds "psychiatrically significant” evidence from a psychiatrist hired to determine the defendant's mental capacity to commit the crime, what difference should it make whether the psychiatrist is court appointed, hired with State funds, or privately employed by the defendant; the question is, under the majority’s test, whether the defendant’s trial was unfair in a due process sense because, in the federal habeas court’s opinion, the psychiatrist’s examination and resulting opinion were "inadequate.”
. The majority has acknowledged this point: "We, of course, do not know whether the psychiatrist, if he had these statements [i.e., the withheld information] before him and an opportunity further to question the accused, would have found them accurately to state [petitioner’s] belief and, if so, whether he would have determined that [petitioner] was insane at the time of the act.” Ante at 530.
. See generally Ga.Code §§ 27-1502 and 27-1504 (1976) (superseded by Ga.Code Ann. § 17-7-130 (1982)).
. Frequently, trial judges waive the witness sequestration rule to allow an expert to observe the proceedings. Later, when the expert is called to testify, he can use any pertinent information he has observed in formulating his opinion testimony, thus perhaps rendering unnecessary the lengthy, convoluted, and typically argumentative, hypothetical questions lawyers would otherwise be forced to utilize.
. Indeed, under the fifth amendment privilege against compelled self-incrimination, a defendant has a constitutional right to refuse to submit to a psychiatric examination, unless he raises the issue of sanity and introduces supporting expert psychiatric testimony of his own. Estelle v. Smith, 451 U.S. 454, 465-66, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981). If a defendant were to invoke this privilege, the State, under the majority’s rule, would be found to have denied the defendant due process of law and effective assistance of counsel if it was later found that the State had withheld any psychiatrically significant information from the examining psychiatrist.
. This conclusion is implicit, if not explicit, in the majority’s discussion of the prosecutor’s duty to provide the defense and defense psychiatrist with material that may have a bearing on the accused's state of mind. Ante at 532 n. 10. Arguably, the prosecutor's duty extends beyond the issue of the accused’s sanity at the time of the offense.to the issues of his competency to stand trial and the sentence to be imposed.
. A final observation should be made about the sweep of the majority's new rule. The majority implies that its new rule is limited to those cases in which the defendant’s sole defense is the defense of insanity. In practically every case in which the defendant pleads insanity, that is his only defense. The new rule therefore will apply in virtually every insanity defense case.
. The majority, on its own initiative, has weighed the aggravating and mitigating evidence in this case and concluded that the "probability that [petitioner] would have received a lesser sentence but for his counsel's error is sufficient to undermine our confidence in the outcome.” Ante at 535. This, in my view, constitutes appellate fact finding, a function the Supreme Court has cautioned us not to perform. See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).