concurring in part and dissenting in part:
I agree with the majority that the challenged jury instruction is unconstitutional and that the evidence that Gunn intended to kill Williams is not overwhelming. However, because I cannot endorse the majority’s analysis of the abuse of the writ question, I respectfully dissent from that portion of the majority opinion.
The district court's conclusion that the petitioner did not abuse the writ of habeas corpus rests on two, intertwined rationales. First, the district court observed that Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), which was decided after Gunn’s first federal ha-beas corpus petition, constituted an intervening change in the law. Second, the district court found that Gunn’s pro se status, in combination with the emergence of Francis, excused his failure to challenge the jury instruction on intent 'in his first federal petition. The first part of the district court’s rationale has since proved to be erroneous, and I do not believe the fact that Gunn was proceeding without counsel is enough, standing alone, to excuse his failure to make his burden-shifting claim at the time of his first petition in 1982.
It is clear that Francis is “merely an application of the principle that governed [the Supreme Court’s] decision in Sandstrom v. Montana, [442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)].” Yates v. Aiken, — U.S. -, 108 S.Ct. 534, 538, 98 L.Ed.2d 546, 554 (1988); see also Tucker v. Kemp, 819 F.2d 978, 980 (11th Cir.1987). Sandstrom was decided over three years before Gunn filed his first federal habeas corpus petition. The question becomes, then, whether his pro se status in 1982 justifies his failure to raise the Sandstrom issue.
Once the state properly pleads abuse of the writ, the petitioner may avoid dismissal if he demonstrates by a preponderance of the evidence that 1) he was unaware of the facts upon which his newly asserted claims are based or 2) he did not know that those facts constituted a basis for federal habeas corpus relief. Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985). Gunn concedes that he cannot satisfy the first prong of the Booker test. He was present in the courtroom when the trial judge instructed the jury. The crux of Gunn’s response to the state’s allegation of abuse of the writ focuses on the second element of Booker. He argues that he did not appreciate the legal significance of the jury instruction until he learned of the decision in Francis.
The only evidence Gunn offers to support this response is that he was acting as his own attorney at the time of his first petition. From this evidence, he maintains that his lack of knowledge about the law rendered him unable to assert the burden shifting claim until Francis struck down an almost identical jury instruction. For two reasons, I do not agree with the majority’s conclusion that this explanation alone supports the petitioner’s burden under the second part of the Booker test.
First, the record indicates that Gunn “knew of the possibility of making such a claim.” Booker, 764 F.2d at 1377. This is so because Gunn was represented by counsel during his trial and direct appeal to the Supreme Court of Georgia. That appeal *1299was submitted on November 2, 1979, nearly four and a half months after the decision in Sandstrom. His counsel at that point was deemed to have knowledge of Sandstrom, and Gunn should have asserted his challenge to the defective jury instruction at that point.1 Our cases clearly indicate that failure to raise a claim on direct appeal can constitute abuse of the writ. Bowden v. Kemp, 793 F.2d 273, 274 (11th Cir.), cert. denied, 477 U.S. 910, 106 S.Ct. 3289, 91 L.Ed.2d 576 (1986). Goode v. Wainwright, 731 F.2d 1482, 1483-84 (11th Cir.1984).
Second, I fear the majority’s holding severely weakens the doctrine of abuse of the writ. If a pro se habeas corpus petitioner can excuse his failure to pursue a claim that is not novel when he is aware of the facts that form the basis of the claim, then it is difficult to imagine a situation in which a court could conclude, absent an admission of knowledge by the petitioner, that a pro se litigant has abused the writ. Such a rule would encourage the piecemeal litigation of claims that the doctrine was designed to eliminate.
This is not to say that a pro se petition should be held to the same standard as one drafted by counsel; our precedent is to the contrary. Mays v. Balkcom, 631 F.2d 48, 51 (5th Cir.1980).2 However, given the Supreme Court’s decision in Yates, I can only conclude that the majority opinion grants the relief sought by Gunn simply because he was not represented by counsel when he filed his first federal petition. I cannot agree that the petitioner’s pro se status, without more, satisfies the second part of the Booker test.
Gunn cites Haley v. Estelle, 632 F.2d 1273 (5th Cir.1980) for the proposition that a petitioner’s lack of counsel alone excuses his failure to raise an available claim in an earlier petition. Although the language of Haley could be construed to support this position, 632 F.2d at 1276,1 do not read the ease that broadly. In Haley, the court vacated the district court’s order dismissing, as an abuse of the writ, the petitioner’s second federal habeas corpus petition. The court ordered a remand to determine the viability of the petitioner’s claim that he had only recently discovered facts that would support his second petition with the help of another inmate. Id. at 1275-76.3 The Haley court merely granted the petitioner an opportunity to present evidence, which, in combination with his lack of representation by counsel, might excuse his neglect. Gunn cites no other cases which hold that a federal habeas corpus petitioner’s pro se status by itself constitutes excusable neglect, nor have I uncovered any such cases in my independent research.
Accordingly, I would reverse the district court’s judgment and dismiss Gunn’s second federal habeas corpus petition for abuse of the writ.
.There is no procedural default in this case because the Georgia courts declined to apply a procedural bar and considered Gunn’s claim on the merits in the collateral proceedings. See Oliver v. Wainwright, 795 F.2d 1524, 1529-30 (11th Cir.1986), cert. denied, cert. denied sub nom. Oliver v. Dugger, — U.S. —, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987). Interestingly, in the procedural default context, a petitioner’s pro se status alone does not relieve him of the obligation of proving cause and prejudice. Alexander v. Dugger, 841 F.2d 371, 373-74 n. 3 (11th Cir.1988).
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding authority all decisions of the Fifth Circuit rendered prior to October 1, 1981.
. Such evidence would allow the petitioner to avoid dismissal under the first element of the Booker test.