dissenting:
The petitioner in this case, David Livingston Funchess, was denied effective assistance of counsel both at sentencing and on appeal when his attorney failed to challenge a jury instruction that placed on him the burden of proving mitigating circumstances beyond a reasonable doubt. Furthermore, his resentencing by the trial judge without the benefit of an advisory jury, under the circumstances of this case, amounted to an arbitrary and unconstitutional imposition of the death sentence. I would therefore reverse the district court’s judgment.
I. Ineffective Assistance of Counsel
The majority states the proper legal standard for resolving this claim. I cannot agree, however, with the majority’s application of either of the two prongs of the analysis described in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In my judgment, trial counsel’s failure to object to the jury instruction placing on the defendant the burden of proving mitigating circumstances beyond a reasonable doubt was unreasonable and deficient performance on his part and not within the range of competence demanded of attorneys in criminal eases according to prevailing professional norms. *697If counsel had not performed deficiently in this regard, there is a reasonable probability that the proper balance of aggravating and mitigating circumstances would not have resulted in the death penalty verdict.
A. Deficient Performance
1. Impropriety of the Instruction
The trial court instructed the jury that Funchess would have to prove mitigating circumstances beyond a reasonable doubt before it could weigh them against the aggravating circumstances. The majority states that it “is not altogether clear” that this instruction is improper because no authority directly supports or negates the charge. Then after a review of the various pronouncements of the Florida Supreme Court regarding Funchess’ claim, the majority finds that the state court has approved the challenged instruction and, “in the absence of a constitutional challenge to the instruction,” defers to that “interpretation of [the] death penalty statute.”
The claim asserted by Funchess does not implicate state law alone. He challenges the effectiveness of trial counsel for failure to object to the jury instruction and at no time does he concede that state law provided the only possible basis for an objection. Where counsel fails to object to a jury instruction that violates the United States Constitution even though it is consistent with Florida law as interpreted by the Florida Supreme Court, that failure may be inadequate as a matter of federal law, regardless of the binding interpretation of the statute announced by the state court.
Such is the case here. The instruction requiring Funchess to prove mitigating circumstances beyond a reasonable doubt before they could be weighed against aggravating circumstances shifted the burden of proof onto Funchess and unduly restricted the discretion of the judge and jury in violation of the Eighth Amendment.
When it comes to the elements of an offense, jury instructions must leave no doubt that the State always retains the burden of proof and that the elements must be proven beyond a reasonable doubt. Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Of course, the same burdens of proof do not always apply to elements of a crime and the mitigating and aggravating circumstances considered during the sentencing phase of a capital trial. The State need not as a matter of federal law prove beyond all reasonable doubt that aggravating circumstances are sufficient and that they outweigh mitigating circumstances. Foster v. Strickland, 707 F.2d 1339, 1345 (11th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); Ford v. Strickland, 696 F.2d 804, 817-19 (11th Cir.) (en banc), cert. denied, — U.S.-, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).
Yet this is not to say that the State may allocate the burden of proof at sentencing in whatever way it chooses. An instruction forcing the defendant to prove beyond a reasonable doubt the existence of mitigating factors violates the Eighth Amendment because it restricts the jury’s ability to “consider” all relevant mitigating evidence, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The instruction commands the jury to give no weight to mitigating evidence until the presence of the mitigating factor is proven beyond a reasonable doubt, even though a reasonable jury might in some cases rely on mitigating factors which, although not established beyond a reasonable doubt, nevertheless indicate to the jury that death is not the appropriate sentence. Lockett protects the individualized nature of sentencing by safeguarding the ability of the jury to consider as a mitigating factor any “aspect of a defendant’s character or record and 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 2964 (emphasis supplied). The operative fact is the proffer of the evidence and not its strength. The instruction in *698question therefore violated the Eighth Amendment’s requirement of individualized sentencing.1
The instruction also violates Florida law as it is now interpreted. The inaugural interpretation of the statute by the Florida Supreme Court in State v. Dixon, 283 So.2d 1 (Fla.1973), established that the State had to prove the existence of aggravating factors beyond a reasonable doubt; the Dixon court did not impose a corresponding requirement on the defendant to prove mitigating circumstances beyond a reasonable doubt. Since that time Florida courts have held, consistent with the requirements of federal law, that mitigating evidence may lead a jury to recommend a life sentence even where the evidence does not prove beyond a reasonable doubt that the mitigating factor existed. Smith v. State, 407 So.2d 894, 901 (Fla.1981) (decision of whether mitigating circumstances exist and weight to be given evidence is within province of judge and jury).
The ruling of the Florida Supreme Court in this case was not necessarily addressed to the propriety of the instruction: it held simply that defense counsel was not ineffective for failing to object to this instruction or to challenge it on appeal. That ruling could have been based on a lack of prejudice or the unsettled nature of the law at that time. If the Florida Supreme Court had indeed determined that this instruction was consistent with state law, it is difficult to understand why the State has conceded before this Court that the instruction was incorrect as a matter of state law.
2. Anticipating Unsettled Law
The failure to object to improper instructions will not automatically mean that representation at sentencing or on appeal is deficient, particularly where the impropriety of the instruction is not completely settled at the time. Nevertheless, some developments in the law should be anticipated by reasonably competent counsel. If for no other reason, counsel must anticipate legal developments because a failure to raise an objection or an issue on appeal can result in procedural default even when the legal merits of the objection are uncertain. En-gle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
Of course, as the Supreme Court stated in Engle, competent counsel need not anticipate every decision that could be lost through procedural default. Otherwise, a defendant could always avoid the cause- and-prejudice standard in this setting simply by reframing the claim in terms of ineffective assistance. 456 U.S. 132-34, 102 S.Ct. 1574-75. A new development in the law might be both novel enough to justify counsel’s failure to raise an objection or challenge on appeal and foreseeable enough to sustain a procedural bar under Engle v. Isaac. See Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, — U.S.-, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983) (failure to advance certain errors on appeal later gaining judicial recognition did not constitute ineffective assistance where law concerning capital sentencing was in state of reformation); Alvord v. Wainwright, 725 F.2d 1282, 1291-93 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (counsel on appeal not ineffective for failure to challenge admissibility of testimony because (1) testimony might have been admissible, (2) counsel need not anticipate all new developments, and (3) another circuit had held that failure to anticipate case excluding similar testimony did not constitute ineffective assistance).
Turning to this ease, it appears that the legal basis for challenging this instruction *699existed at the time of trial and appeal in a form sufficient to conclude that defense counsel was unreasonable in his failure to object or appeal. Particularly under state law, there was reason to question the propriety of the instruction. It had long been established that the prosecution had to prove all aggravating circumstances beyond a reasonable doubt. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The cases did not imply in any way that mitigating circumstances had to be proven beyond a reasonable doubt; they suggested that mitigating evidence of different strengths could all influence a jury’s recommendation. 283 So.2d at 9. Under federal law, the burden of proof applicable to elements of an offense, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), should have prompted counsel to object to this instruction, particularly in light of the analogies that could have been drawn at the time between the capital sentencing determination and a guilt-innocence trial. See Furman v. Georgia, 408 U.S. 238, 247-49, 313, 92 S.Ct. 2726, 2730-2731, 2764, 33 L.Ed.2d 346 (1972) (Douglas, White, JJ., concurring) (capital sentencer may not exercise untrammeled discretion). In short, it cannot be considered reasonable representation under prevailing professional norms to conclude from the statute and existing state and federal case law that mitigating circumstances had to be proven beyond a reasonable doubt. Hence, defense counsel’s failure to object was deficient.
B. Prejudice
The district court assumed that defense counsel was deficient in his failure to object on this ground but found that Fun-chess suffered no prejudice. It based this finding on the fact that (1) counsel’s argument at the penalty phase was “primarily legal rather than factual” and (2) the resen-tencing court reweighed all the mitigating and aggravating circumstances and thereby cured any error infecting the jury recommendation. Neither of these two factors lessens the prejudice suffered by Funchess.
The first argument, suggesting that a defense based purely on legal considerations does not rely to a significant degree on mitigating factors, does not apply here. Defense counsel stressed the possibility that Funchess might be innocent and suggested that it would be improper to impose the death penalty where there remained a “possible doubt” or “whimsical doubt” of guilt. He reinforced that position with evidence that Funchess had never been convicted of a violent crime. These contentions presented questions for the jury and were not strictly legal questions; an assessment of mitigating factors was critical to Funchess’ defense.
Indeed, to the extent that the “whimsical doubt” defense did stress the legal standards guiding the jury’s factfinding task, the instruction that mitigating factors had to be proven beyond a reasonable doubt all but foreclosed any chance that the defense would succeed. Where the primary mitigating factor is the lingering possibility of innocence, forcing the defendant to establish that fact beyond a reasonable doubt is roughly comparable to requiring that he establish a reasonable doubt regarding guilt, a task that the defendant has already failed to accomplish. A confusion of the burden of proof in sentencing deliberations is most prejudicial when the chosen defense itself depends so heavily on the burden of proof.
The second argument, the curative influence of resentencing, cannot be accepted either. The advisory jury in a Florida capital case is free to weigh the evidence differently than the trial court would. The court may override a recommendation of mercy only if “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Hence, if there is a reasonable probability that the jury could have reached a recommendation of mercy that would have been carried out by the trial court, it does not matter that another fact-finder, the resentencing court, weighed the factors in another way. See Adams v. Wainwright, 764 F.2d 1356, 1364-65 (1985).
*700It seems clear that the instruction prejudiced Funchess’ chances of obtaining a recommendation of life from the jury because his defense depended so heavily upon the proper standard of proof. Hence, he has shown that his counsel performed inadequately and that the constitutionally inadequate performance created a reasonable probability that the jury would have weighed mitigating and aggravating circumstances differently if counsel had performed adequately by insisting on proper instructions regarding the burden of proof. The district court should be reversed on this ground.
II. Resentencing without Advisory Jury
Pursuant to the dictates of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Florida Supreme Court ordered the trial judge in Funchess’ case to resentence the defendant “without the necessity of an advisory jury,” but with directions to provide counsel for all parties an opportunity to explain, contradict, and argue regarding the relevance of the confidential information relied upon by the court during the first sentencing, as well as other matters properly considered by the trial court during the original sentencing. 367 So.2d 1007. On remand, the trial court received new mitigating evidence and reweighed the aggravating and mitigating circumstances in the case after reviewing the original jury recommendation.
Funchess asserts that the resentencing trial should not have given any weight to the findings of the original jury because its recommendation was tainted by the erroneous jury instructions. Under Proffitt v. Wainwright, 756 F.2d 1500 (11th Cir.1985), resentencing may take place without the benefit of a new jury recommendation only when the original proceeding was free from “serious error.”2 See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (vacating death sentence based on unrebutted pre-sentence report, stressing need for reliable information in capital sentencing). For reasons already discussed, the fact that the defendant was required to prove the existence of mitigating factors beyond a reasonable doubt was a serious error that infected the original proceeding; it should have prevented the trial court from relying on that recommendation at resentencing. This claim therefore provides an additional basis for granting habeas corpus relief, wholly apart from the question of whether counsel at the time was deficient in failing to anticipate legal developments.
Because this death sentence was imposed in a manner inconsistent with the Sixth and Eighth Amendments, I would reverse the district court’s judgment.
. In addition, the instruction concerns a part of the sentencing proceeding most like the liability trial, where it is most appropriate to adopt the due process requirements of the liability trial. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (due process aspects of Eighth Amendment require opportunity for rebuttal of evidence by defendant). The existence of mitigating circumstances is a fact that is susceptible to standards of proof, unlike the relative weight to be assigned to aggravating and mitigating factors. Cf. Ford v. Strickland, 696 F.2d 804, 817-19 (11th Cir.) (en banc), cert. denied, — U.S.-, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).
. Funchess also challenges the power of the resentencing judge to hear new evidence of mitigating and aggravating circumstances without the benefit of an advisory jury. Proffitt did not address this problem, for the resentencing judge in that case considered no new evidence. Since there was a "serious error” affecting the original jury deliberations in this case, there is no need to resolve the question of whether (or to what extent) a judge on resentencing can hear new evidence.