specially concurring:
I join Judge Johnson’s opinion except for a portion of section IIA (regarding the procedural default of Mann’s involuntary absence claim) and section IIG (regarding the use of Mann’s Mississippi conviction as an aggravating circumstance). As to these two sections, I agree with the result, but for different reasons. I write separately also to express explicitly my reasons for joining in section IIF (regarding Mann’s Caldwell claim).
I. Procedural Default
In his Rule 3.850 motion, Mann raised several claims he had not raised on direct appeal. Among these was a claim that his absence from a jury view of the crime scene violated his constitutional rights. Mann’s attorneys raised objections during the jury view, claiming that the police officer who led the tour of the crime scene provided substantive testimony to the jury. The giving of such testimony allegedly exceeded the proposed scope of the view and thus defendant’s presence was required. Mann’s failure to pursue this claim on appeal constituted a procedural default under Florida law.
In excusing the default, the opinion refers to the following language from the Florida Supreme Court’s opinion affirming Mann’s conviction on direct appeal:
In addition to this claimed trial error we have independently reviewed the record to assure ourselves of the propriety of the conviction. We find the conviction supported by competent, substantial evidence, free from substantive error, and affirm it.
Mann v. State, 420 So.2d 578, 580 (Fla.1982). There is merit to the position that the Florida Supreme Court’s independent review of the record in capital cases constitutes a waiver of the defendant’s procedural default, especially where the claim was raised at trial. Where the objection appears in the trial record, it is much more likely that the Florida Supreme Court came across this issue during its review of the record and denied the claim on its merits. However, adoption of this waiver rule is unnecessary in light of the Florida Supreme Court’s later consideration of the issues in its opinion denying post-conviction relief.
In its opinion on appeal from the denial of Mann’s 3.850 motion, the Florida Supreme Court stated: “[w]e see no need or benefit in discussing in detail the remainder of Mann’s claims in his 3.850 motion.” Mann v. State, 482 So.2d 1360, 1361 (Fla.1986). Thus, the court reviewed but did not address Mann’s argument that his involuntary absence claim was cognizable in a motion for post-conviction relief. The opinion relies on the above language from the Supreme Court’s 3.850 motion in excusing Mann’s procedural default with regard to his Miranda and Enmund claims. I see no reason to rely on a different ground to excuse his default regarding the jury view issue, which stands in the same procedural position as the claims addressed in sections IIB and IIC.
Where the state court does not plainly invoke its procedural default rules, the petitioner should not be barred from seeking federal habeas review. See Oliver v. Wainwright, 795 F.2d 1524, 1528-29 (11th Cir.1986) cert. denied, _ U.S. _, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987). A contrary rule would be inconsistent with the reasoning of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
Long laid down a bright-line rule to determine whether state court opinions relied on independent and adequate state law grounds so as to preclude direct review of state criminal convictions in the Supreme Court. We have in the past recognized that the Court’s decisions in the direct review context are, at the very least, relevant to our consideration of procedural default issues in the habeas context. See Spencer v. Kemp, 781 F.2d 1458, 1470 & n. 21 (11th Cir.1986) (en banc) (“The principles derived from [direct review] cases ... are as applicable on federal collateral review of a state court conviction as they are on direct appeal.”); Francois v. Wainwright, 741 F.2d 1275, 1281 (11th Cir.1984) (only “indepen*1488dent and adequate” state procedural grounds preclude federal habeas review).
In Long, the state court referred twice in its opinion to the state constitution, but otherwise relied exclusively on federal law. Justice O’Connor reviewed and rejected the existing ad hoc methods of dealing with ambiguous state court opinions. These rejected options included: dismissing the case; continuing the case to obtain clarification from the state court; and examining the state law ground to determine whether it has been guided by federal law. In place of these options, the Court announced a “plain statement” rule, which permits direct review unless the state court makes clear in its opinion that the case rests on an independent and adequate state law ground. Although Long involved the independence and adequacy of a state substantive ground, the rule announced in that case is applicable where the state court opinion is ambiguous as to its reliance on an independent and adequate state procedural ground. See Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-39, 86 L.Ed.2d 231 (1985).
The Long “plain statement” rule is applicable in this case. Where the state court opinion is silent on the default issue, we should presume that the court decided the issue on federal grounds where a federal constitutional question is at issue. First of all, such a bright-line rule fosters the comity and federalism concerns of Sykes by providing a consistent and predictable approach. Such a rule would not be unduly burdensome to the state courts, and those courts would retain their ability to enforce their procedural rules and to preclude federal review in appropriate cases. Cf. (Justice) O’Connor, Our Judicial Federalism, 35 Case W.Res.L.Rev. 1, 8 (1984) (“The Michigan v. Long rule also promotes state court autonomy, by virtue of the simple fact that state courts retain complete control over whether the rule will be applied and whether the case can be reviewed.”) The Long rule simply requires the state courts to be quite clear about their intentions when they desire to preclude review of the merits of the claim because of procedural default. It is not too much to require the state court to be explicit when applying its procedural default rules.
Second, the interest of a defendant, particularly a capital defendant, in having his federal claim heard by a federal habeas court is simply too great to be precluded by our presumption that the state court's silent affirmance was based on procedural default. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court indicated that the “independent and adequate” test applied in direct review cases would unduly restrict federal jurisdiction in habeas cases. Id. at 428-34, 83 S.Ct. at 843-46. The indication was that issues barred from direct review could, in some cases, be heard on habeas. This portion of Fay was implicitly rejected in Sykes, and it now seems clear that the independence and adequacy of the state procedural rule is the first inquiry in procedural default cases. See Spencer, 781 F.2d at 1463. However, declining to apply the Long plain-statement rule in habeas cases would turn Fay on its head by creating a situation where some cases would be amenable to direct Supreme Court review but would not be amenable to review by a federal habeas court. Such a result is not required, nor even permitted, by the cases since Fay. Given the Supreme Court’s crowded docket and nationwide jurisdiction, it would be illogical and unfair to have a rule whereby federal review is permitted but the only path to that review is the rarely granted writ of certiorari. See Coleman v. Balkcom, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981) (Stevens, J. concurring in denial of certiorari).
Finally, the willingness of the Florida Supreme Court to search the record in capital cases should caution us against assuming that silent affirmances by that court indicate enforcement of procedural default rules. The Florida court sometimes considers issues on their merits, even when they are not raised by the defendant. See Davis v. State, 461 So.2d 67 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985); Rose v. State, 425 So.2d 521 (Fla.1982) cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983). *1489It would be an affront to the principles of comity and federalism to presume that the Florida Supreme Court was relying on'procedural default absent express language in that court’s opinion to that effect.
II. Use of the Mississippi conviction as an aggravating circumstance.
I do not join in deciding this issue because it is unnecessary to address the procedural and substantive aspects of this claim, given our holding that Mann is entitled to a new sentencing proceeding. In the meantime, Mann may continue his efforts to attack his Mississippi conviction in the Mississippi courts and, if necessary, in the appropriate federal courts.
III. Caldwell
I concur fully in section IIF of Judge Johnson’s opinion. I write separately to make clear which of the prosecutor’s and trial court’s comments were impermissible and to discuss the circumstances of this case which make it quite likely that these comments affected the advisory jury’s decision to recommend the death penalty.
In explaining the jury’s role in the sentencing process during jury selection, the prosecutor told the venire:
The recommendation that you make to Judge Federico in this portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all of the testimony himself.
Trial Transcript Vol. I at 108 (emphasis added). A short time later, the prosecutor, in the context of questioning the veniremembers about their beliefs regarding the death penalty, again told the panel:
[Y]ou understand you do not impose the death penalty. That is not on your shoulders. The ultimate decision rests with Judge Federico.
Id. at 110 (emphasis added). In response to a question, the prosecutor repeated the inaccurate statement of law to the venire:
[Veniremember Gordon]: What’s the alternative? Is it life in prison?
Mr. Meissner: Yes, it is. Again, that decision rests up here with the law, with Judge Federico. You will have the opportunity after you have heard everything there is to hear to make a recommendation to him. But it is not legally on your shoulders, though. It is not your ultimate decision. You act in that regard in an advisory capacity only. Does that cause you any difficulty?
Mr. Gordon: No.
Id. at 110-11 (emphasis added).
The trial court’s preliminary instructions to the jury prior to the beginning of the penalty phase similarly misled the jury as to the importance of its advisory role. The court charged the jury:
The punishment for this crime is either death or life imprisonment. The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury render to the court an advisory sentence as to what sentence should be imposed on the defendant.
Trial Transcript Yol. X at 1252 (emphasis added).
This instruction to the jury followed the court’s denial of a defense motion for a specific instruction that the jury’s recommendation of life or death is given great weight. Id. at 1248.1
*1490Again, at the close of the penalty phase in giving instructions to the jury prior to the time they retired to recommend the sentence, the court again told the jury:
Ladies and Gentlemen of the jury, it is now your duty to advise the court as to what punishment should be imposed on the defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the court and render to the court an advisory opinion based upon your determination____
Trial Transcript Vol. I at 1344-45. After the jury’s recommendation, the court finally said it would give the jury’s opinion great weight. Id. at 1354.
Whether prosecutorial and judicial comments create the “intolerable danger” that the advisory jury chose to minimize the importance of its role depends on the particular facts and circumstances of each case. The trial court may explain to the jury its advisory role, “as long as the significance of the [the jury’s] recommendation is adequately stressed.” Harich v. Wainwright, 813 F.2d 1082, 1101 (11th Cir.1987) (quoting Pope v. Wainwright, 496 So.2d 798 (Fla.1986)). Although the trial court in this case believed the jury understood that its recommendation was entitled to great weight, see n. 1, supra, the court took no steps to “adequately stress” to the jury that its recommendation was entitled to deference, although a specific request to do so had been made.
The circumstances of this case indicate there was an intolerable danger that the jury recommended the death penalty because it did not understand that its recommendation would, to some extent, bind the trial court to a particular result. The victim in this case was a young child. After she disappeared, members of the community joined in a search of the area where her bicycle was found. Certainly, there is community pressure upon the jury in such a case to recommend the strictest penalty allowed by law. On the other hand, the jurors heard compelling mitigating evidence that Mann suffered from psychotic depression, and that he committed this crime during a fit of pedophilic rage. They were told that Mann attempted to commit suicide by slashing his forearms shortly after the crime had been committed. He had attempted suicide several times in the past. When the police came to his aid on the day of the murder, Mann said he had done something stupid and needed help. At the sentencing hearing, a psychiatrist testified that Mann committed the crime while under the influence of an extreme mental or emotional disturbance. In fact, the psychiatrist suggested that Mann was on his way home to commit suicide when he encountered the victim. The victim, a 10 year-old girl, intensified his feelings of guilt regarding his pedophilic instincts, thus channeling his self-destructive rage into an act of violence. Faced with a difficult decision, the jurors were quite susceptible to a suggestion that the sentencing decision was “not on [their] shoulders.” On these facts, and given the statements of the prosecutor and the court’s instructions to the jury, the trial court was required to explain to the jury that its recommendation for life imprisonment would be adopted unless the facts justifying a death sentence were so clear and convincing that virtually no reasonable person could differ as to the appropriateness of the death penalty. See Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Absent such an instruction, the improper comments in this case created the “intolerable danger” that the advisory jury gave its recommendation without truly understanding its proper role. Accordingly, Mann’s death sentence (which was based in part on the jury’s recommendation) cannot stand.
. The following discussion took place upon defense counsel’s request for this specific instruction:
MR. DOHERTY: Number three just says that the jury recommendation is entitled to great weight.
THE COURT: Well, I think that goes without saying. I don’t know if I need to instruct them that that is so.
MR. DOHERTY: I think it is. The reason we would ask—
THE COURT: That’s something that I need to do after they make their recommendation, and I will give it great weight.
MR. DOHERTY: I know, but they need to know that so they know we’re not up there just—
*1490THE COURT: I think the standard instructions bring home to them that it is very important that they, you know, to not act hastily or without due regard to the gravity of these proceedings, that they should carefully weigh and sift and consider the evidence. I think that's sufficient. I will deny number three.