concurring:
I concur in the majority opinion, but write separately to emphasize that this case should not be interpreted as establishing a bright line rule that a pro se habeas petitioner is always excused from failing to raise claims in a first petition simply because of his or her pro se status. The dissent mischaracterizes our opinion as holding that Gunn’s pro se status, standing alone, excused his failure to raise the Franklin claim in his first federal habeas petition. Our opinion, however, is not based on the mere fact that Gunn was not represented by counsel when he filed his first federal habeas petition. More precise*1300ly, it is Gunn’s pro se status, coupled with the technical nature of his claim, that compels us to conclude that he did not abuse the writ.
As the dissent has noted, Gunn can avoid dismissal of his second habeas petition if he demonstrates by a preponderance of the evidence that he either was unaware of the facts upon which his newly asserted claim is based or that 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 argues that his second petition should not be dismissed because when he filed his first petition he was not aware that the jury charge given at his trial constituted a basis for federal habeas relief. Although it is true that if Gunn had been represented by counsel on his first habeas petition, his delay in raising the Franklin claim would have been an abuse of the writ, Tucker v. Kemp, 819 F.2d 978, 980 (11th Cir.1987) {Franklin is not new law for abuse of the writ purposes where petitioner represented by counsel), a layman unschooled in the law should not be penalized for failing to discern legal intricacies that evaded even federal judges and members of the Georgia Supreme Court. See, e.g., Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (three justices dissenting from holding that Franklin charge violates Sandstrom );1 Franklin v. Francis, 720 F.2d 1206 (11th Cir.1983) (reversing district court order that Franklin charge did not violate Sand-strom ); Skrine v. State, 244 Ga. 520, 260 S.E.2d 900, 900-01 (1979) {Franklin charge does not violate Sandstrom). The dissent’s insistence that Gunn’s pro se status does not excuse his initial failure to raise the Franklin claim disregards precedent of this circuit holding that a pro se petitioner “should not be penalized because his inexperience in jurisprudence left him unaware of claims he had not considered at the time of his first application for habeas corpus.” Haley v. Estelle, 632 F.2d 1273, 1276 (5th Cir.1980)2; accord Mays v. Balkcom, 631 F.2d 48, 51 (5th Cir.1980) (because a pro se habeas petitioner “will more than likely not be aware of all the possible set of facts which could result in a granting of relief by way of habeas corpus,” a pro se habeas petition filed by a prisoner “should be examined more liberally than one drawn up by an attorney”).
The dissent argues that Gunn “knew of the possibility of making” a Franklin claim because when Gunn was represented by counsel on his direct appeal in 1979 Sandstrom had already been decided, and thus, Gunn’s counsel was deemed to have knowledge of Sandstrom. In other words, the dissent attributes appellate counsel’s constructive knowledge of Sandstrom to Gunn and insists that this knowledge sup*1301plied Gunn with the basis for making a Franklin claim in his first pro se habeas petition. The dissent offers no support for this argument, and we have found none. Indeed, the fact that Gunn’s counsel on direct appeal had constructive knowledge of Sandstrom is irrelevant in determining whether Gunn himself, acting pro se, abused the writ by not including his Franklin claim in his first petition.3
For these reasons, I join the majority in holding that Gunn’s failure to raise the Franklin claim in his first federal habeas petition does not constitute an abuse of the writ.
. Justice Rehnquist, joined by Chief Justice Burger and Justice O’Connor, dissented on the ground that the majority "needlessly extends our holding in Sandstrom v. Montana to cases where the jury was not required to presume conclusively an element of a crime under state law.” Francis, 105 S.Ct. at 1980 (citation omitted). Justice Rehnquist further noted that “even assuming the one or two sentences singled out by the Court might conceivably mislead [a reasonable juror], I do not believe that a reasonable person reading that language 'in the context of the overall charge,’ could possibly arrive at the Court’s conclusion here." Id. (citation omitted). Justice Powell also dissented, but only on the ground that the challenged language, in combination with the remainder of the jury charge, satisfied Sandstrom. Id. at 1977-80. Justice Powell agreed with the majority that "'[standing alone,' the challenged language could be viewed as ‘an unconstitutional burden-shifting presumption with respect to the element of intent.’ ’’ Id. at 1978.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
The dissent attempts to minimize the importance of Haley by pointing out that the Haley court remanded the case to the district court to hold an evidentiary hearing on the abuse of the writ issue. According to the dissent, ”[t]he 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.” The Haley court, however, in no way indicated that petitioner’s pro se status alone was not enough to defeat the state’s accusation of abuse of the writ. Instead, it merely found the record below inadequate to make a decision on the abuse of the writ issue.
. The dissent maintains that "[o]ur cases clearly indicate that failure to raise a claim on direct appeal can constitute an abuse of the writ.” To support this assertion, the dissent cites 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). Neither of these cases, however, holds that a petitioner abuses the writ by raising a claim in a federal habeas petition that he could have raised on direct appeal. Although both Bowden and Goode mention that the petitioners failed to raise their claims on direct appeal, the basis for finding an abuse of the writ in those cases was that the petitioners, acting with counsel, had unjustifiably failed to raise their claims in their first habeas petitions. The failure to raise these claims on direct appeal had nothing to do with the determination of abuse of the writ in either case. Rule 9(b) provides that "[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior petition constituted an abuse of the writ.” The rule simply does not provide for a holding of abuse of the writ based on a petitioner’s failure to raise claims on direct appeal. The state may address that shortcoming by raising the issue of procedural default, which the state did not do in this case.