dissenting:
I. I DISSENT
The majority’s decision in this case departs sharply from Supreme Court precedent that requires a petitioner to make a colorable showing of “actual innocence” in order to obtain federal habeas review after an unexcused procedural default. According to today’s decision, a petitioner need only make a colorable showing that a constitutional error probably prejudiced his chances for a more favorable sentence. Thus, so long as he can demonstrate a “reasonable probability” that a constitutional error affected the outcome of his sentencing, a petitioner may ignore state procedural law and obtain an unlimited number of federal habeas hearings, regardless of a state’s interest in enforcing its procedural rules and achieving some semblance of finality in criminal cases.1
In short, the majority replaces the Supreme Court’s “actual innocence” standard with a requirement that the petitioner make a colorable showing of prejudice.2 The majority’s new test “turn[s] the case in which an error results in a fundamental miscarriage of justice, the ‘extraordinary case,’ ... into an all too ordinary one.” Dugger v. Adams, 489 U.S. 401,-, 109 S.Ct. 1211, 1218 n. 6, 103 L.Ed.2d 435 (1989).
Today’s opinion arrives at its startling result by way of a number of significant analytical mistakes and misinterpretations of recent case law. The majority (1) incorrectly translates the concept of “innocence” from the guilt phase of a trial into the capital sentencing context, (2) ignores the crucial distinction expressed in the Supreme Court’s “miscarriage of justice” jurisprudence between “actual ” and “legal ” innocence, and (3) implicitly attempts to justify its standard by referring to arguments that a majority of the Supreme Court rejected in favor of a more limited scope of review for procedurally barred claims.3 I dissent.
*481My remarks in dissent are confined specifically to whether Johnson had made a colorable showing of “actual innocence.” A petitioner need not make a colorable showing of “actual innocence” in order to obtain appropriate relief for timely asserted errors, and much of the majority’s analysis is accurate when applied to the evaluation of timely asserted claims of error.
II. A DIFFERENT VIEW OF THE RECORD
Before turning to each of these points, I will refer briefly to the facts that led to Johnson’s conviction and death sentence. I will also review the evidence that the majority claims would, absent the incompetence of Johnson’s sentencing counsel, almost certainly have precluded a death sentence for Johnson. This reading of the record is not necessary to my conclusion that the majority has misinterpreted the meaning of “actual innocence” in the capital sentencing context;4 however, I take issue with two impressions created in the majority opinion.
First, the record clearly demonstrates that Marvin Johnson did not shoot the victim, Woodrow Moulton, in the course of the gunfire exchanged between the men after Moulton grabbed a gun from behind the counter and fired upon Johnson as Johnson attempted to leave the scene of the armed robbery. The fatal shooting occurred after Moulton had emptied his revolver. According to eyewitness testimony, Johnson did not flee the scene after the gunfire ceased, but instead returned to within a few feet of Moulton, who at this time had dropped his weapon and held his hands in the air. Johnson stated, “You think you you’re a smart son-of-a-bitch don’t you?”, and shot Moulton in the chest at point-blank range.5
Johnson presented a defense at his sentencing hearing to the effect that his decision to shoot Moulton was the product of, inter alia, his extreme emotional disturbance in the face of the gunfire. Both the trial judge and the jury were free to consider this evidence in mitigation of Johnson’s offenses.
I highlight these facts to provide the reader with a contextual appreciation for both the jury’s recommendation of a life sentence and the judge’s decision to impose the death penalty.
Second, the majority construes Johnson’s sentencing counsels’ failure to present certain newly proffered psychiatric evidence as extremely prejudicial. The majority contends that such evidence would have precluded a death sentence. See ante at 461-462.
The majority’s treatment of the psychiatric testimony proffered by Johnson discloses a notable tension. On the one hand, the majority suggests that the evidence of Johnson’s compulsion to obtain drugs indicates with a “high degree of certainty” that the trial judge would not, and by law could not, have overridden the jury in the face of such evidence. Ante at 462. On the other hand, the majority concedes that Johnson’s lawyers may have made a “deliberate, tactical decision” not to pursue this line of evidence. Ante at 463. The majority’s discussion of the possibility of strategic choice is both candid and revealing. One would expect that if the drug compulsion/duress evidence virtually mandated a life sentence for Johnson, the only remaining question would be whether the attorneys were or should have been aware of the evidence, since the decision not to *482pursue such death-preclusive evidence could hardly have been the product of reasonable professional judgment.
The majority's forthright consideration of strategic choice implies, quite correctly, that any testimony that emphasized Johnson’s violent past and his compulsion to obtain drugs might have prejudiced his chances to receive a life sentence. Johnson’s sentencing counsel made a motion in limine to exclude evidence of Johnson’s criminal record and his recent escape from prison prior to the robbery. Counsel expressly stated that he wished to foreclose impeachment by not relying on character evidence. The majority acknowledges the very real prospect that both the judge and the jury might not have accepted the drug compulsion/duress theory as a mitigating factor, but instead would have considered Johnson’s propensity toward violent crime — whether or not the product of drug addiction — as a nonstatutory aggravating circumstance.
Even assuming arguendo that Johnson could have proven that he suffered from an acute psychological compulsion to obtain drugs, and that the gunfire reduced his capacity to control his emotions,6 both the judge and the jury still would have remained free to characterize Johnson’s decision not to flee the store with the stolen drugs (the object of his compulsion), but to linger at the scene of the crime in order to execute the victim, as an aggravating factor in his crime.
I also note that Johnson’s sentencing attorneys obtained a life recommendation from the jury without introducing the drug-related information. There is a strong inference that Johnson’s counsel sought to safeguard the jury recommendation and may well have chosen not to jeopardize its momentum by exposing Johnson to the type of impeachment and prejudice described above.7 The record suggests that Johnson’s attorneys made a strategic choice not to interject a somewhat abstract psychiatric theory of mitigation, and that the failure to develop and introduce the drug-related psychiatric evidence was hardly sine qua non to Johnson’s death sentence.
Although the majority acknowledges the very real possibility of a strategic choice by Johnson’s counsel, it attempts to explain in two ways its conclusion that the newly proffered evidence of drug compulsion/duress would have virtually precluded a sentence of death.
First, the majority recognizes the disadvantages in the introduction of character evidence when it observes that the prosecutor had already made the judge and the jury aware, through Johnson’s cross-examination and various other comments, see ante at 465, of Johnson’s prior involvement with drugs and crime. Johnson’s sentencing counsel had no strategic reason to hide Johnson’s drug compulsion since the “damage,” the majority implies, was already done. However, as the references to the record suggest, see ante at 465, these limited allusions to Johnson’s criminal history differed substantially from the sort of emphatic disclosures that would have resulted if counsel had decided to present a theory of mitigation based on Johnson’s past involvement with drugs.
Second, the majority suggests that the decision not to pursue the drug compulsion/duress theory was not the informed “product of careful and deliberate thought.” Ante at 464. Johnson argues that since his sentencing attorneys failed to pursue a more complete psychiatric investigation in the month between the jury recommendation hearing and the sentencing hearing, they were unaware of the psychiatric evidence that Johnson now claims he can present. Thus, Johnson argues, his *483attorneys could not have exercised professional judgment in not presenting such evidence.
The essence of the new psychiatric evidence that Johnson claims his sentencing counsel could not appreciate is that Johnson’s addiction to drugs caused his inability to reason in the face of stressful situations, and that the extent of his disability was greater than his attorneys, as lay persons, could understand. On the other hand, Johnson’s sentencing counsel (and, presumably, Dr. Yarbrough) clearly knew that Johnson was addicted to drugs, and that Johnson killed a man during a robbery of a drugstore in order to obtain drugs. In short, I discern nothing in the record that suggests that Johnson’s attorneys were at all uninformed as to either (1) the nature of a possible drug compulsion/duress theory of mitigation, or (2) the significant risk that this theory of mitigation would backfire on Johnson.
The attorneys hardly needed a more complete psychiatric evaluation to foresee the response had they emphasized Johnson's past and thereby permitted the prosecution to exploit that information for its own purposes. More importantly, it is clear that what Johnson’s sentencing counsel purportedly lacked, and what his collateral counsel now brings before this court, is a psychiatric gloss on a drug problem of which the sentencing attorneys were acutely aware. Indeed, Dr. Yarbrough presented the heart of this psychiatric defense when he testified at the sentencing hearing that Johnson’s ability to control his impulses deteriorates significantly in the face of stressful events. Thus, the attorneys were able to present the duress theory quite effectively without the potentially damaging stress on Johnson’s violent, drug-related criminal history.
My disagreement with the majority’s decision in this case extends well beyond my interpretation of the record, however. I will attempt to illustrate the critical junctures at which I believe the majority has departed from the Supreme Court’s “miscarriage of justice” case law to fashion a rule that entitles a habeas petitioner to virtually unlimited review for prejudicial errors.
m.
A. The Death Penalty Prior to Furman v. Georgia.
The majority undertakes to review the historical development of death penalty jurisprudence over the past twenty years. This review misses, in my opinion, the essence of that history and skews the application of precedent to this case. The Supreme Court’s treatment of the relationship between sentencing discretion, the death penalty, and the Eighth Amendment has resulted in an almost perfect jurisprudential circle.
Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1971), many states authorized the death penalty for any defendant found guilty of what I reluctantly refer to as “simple murder.” The death penalty was not mandatory; the jury or other sentencing authority had unlimited discretion to grant the defendant mercy and impose life imprisonment rather than the death penalty.8 The Supreme Court unequivocally denounced such discretion in Furman, concluding that unguided sentencing led to the discriminatory, arbitrary, and capricious imposition of the death penalty in violation of the Eighth Amendment. In short, The Court found no merit in discretion.
At least thirty states enacted new death penalty statutes in response to Furman’s *484concern for unguided discretion. One group of states, including Louisiana and North Carolina, interpreted Furman to require the removal of all discretion in the capital sentencing context. These states passed laws that mandated the death penalty for certain statutorily defined crimes. The other group of states, including Georgia, opted to provide guided discretion in the sentencing process by listing certain statutorily defined aggravating and mitigating circumstances. These latter states undertook to confine the sentencing body’s discretion within the statutory factors.
The Supreme Court reviewed these two distinct types of statutes during the same term in 1976, struck down mandatory death penalty statutes,9 and upheld statutes that provided for discretion.10 Limited discretion, according to the Court, was both consistent with, and necessary to, the constitutional requirement of an individualized evaluation of the death penalty’s appropriateness. So began the arc back toward discretion. The Furman Court announced a retreat from discretion in capítol sentencing; in Woodson, Roberts, Gregg, Proffitt and Jurek, that retreat arched backward toward a constitutional appreciation of discretion.
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court did not merely tolerate discretion, but mandated it! Death penalty statutes following Furman had apparently confined the exercise of discretion “at both ends.” These statutes generally required the sentencing authority to consider certain statutorily specified aggravating circumstances and statutorily specified mitigating circumstances found to accompany the murder. The trial court in Lockett had apparently concluded that to allow consideration of claimed mitigating circumstances not in the statute would authorize the type of unbridled discretion condemned in Furman. The Supreme Court held, however, that the Constitution required states to afford the sentencing authority the discretion to consider any circumstance claimed to be mitigating, whether encompassed in the statute or not. Thus, the Court constitutionally imposed unbridled discretion in the grant of mercy. It appeared, however, that the Court may have left the consideration of aggravating circumstances to those prescribed in the various state statutes.
The Court then “dropped the other shoe.” In Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).11 In these cases the Court revealed its appreciation of the fact that a defendant is guilty of a murder for which the death penalty could be imposed where it is found that the murder was accompanied by one or more of the statutory aggravating circumstances. Thus, the capital crime is not murder; it may be called aggravated murder or capital murder. Once convicted of such a crime, not only can unlimited mitigating circumstances as per Lockett be shown, but the state can prove facts in aggravation of the capital crime, whether listed as statutory aggravating circumstances or not.
B. The Death Penalty Today: “Aggravated Murder. ”
Prior to Furman, the sentencing authority in a murder case had unfettered discretion to consider virtually anything asserted *485in mitigation. Lockett re-established that practice. Prior to Furman, the sentencer in a capitel case could consider anything, in its unfettered discretion, in aggravation.12 Barclay and Zant have re-established this practice so long as at least one statutory aggravating circumstance accompanies the murder. In practical terms, the Court has reinvigorated discretion in capital sentencing in order to guarantee an individualized sentencing process.
Engineers and surveyors use the phrase “failure to close” to express the idea that one has measured from a known reference point to certain unknown points without returning to the original reference point. I believe this expression aptly describes the historical progression of death penalty jurisprudence. Shortly after Lockett, I noted the “inherent tension” between the Court’s aspiration for “individualized sentencing and objective standards.” Moore v. Balkcom, 716 F.2d 1511, 1521 (1983) (en banc). Justice Scalia has recently denounced this tension as internally contradictory. Walton v. Arizona, — U.S. -, -, 110 S.Ct. 3047, 3051-52, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring).13
I suggest that, commencing with Fur-man, jurists of this age have repeated the philosophical, legal and constitutional analysis of death penalty jurisprudence which has been done by jurists in earlier times. The tension between objectivity and individuality is not new.14
The Court seems to have resolved the tension by making one full turn on a “coil spring” or a “spiral staircase” of case law. The Court has returned the law largely to its pre-Furman state but has ratcheted the doctrine up one step from its starting point. As I explained above, prior to Furman “simple murder” was a capital crime. Today the level of criminal conduct for a capital crime has been raised; a defendant must commit the new crime of “capital murder” or “aggravated murder” in order to be eligible for the death penalty. This new crime is defined as “murder accompanied by one or more of the statutory aggravating circumstances.” The sentencing authority may not impose the death penalty for “simple murder.” The essential point of this development in the law, at least with regard to Johnson’s claim of “actual innocence,” is that when the prosecution has proved that the defendant committed aggravated murder, the sentencing authority has very broad discretion to sentence the defendant either to life imprisonment or the death penalty.15
As I explain below, since Johnson’s proposed showing of factual error does not cast doubt on his guilt of a crime for which the sentencing authority in his case could impose the death penalty (i.e., “murder accompanied by at least one statutory aggravating circumstance”), he has not made a colorable showing of “actual innocence.” Therefore, Johnson is not entitled to a review on the merits of his defaulted constitutional claim.
IV. THE MAJORITY’S “ACTUAL PREJUDICE” TEST
Before considering the majority’s proposed test for determining when a defen*486dant is “innocent of the death penalty,” I must clarify my reluctant use of the term “innocence” in connection with a sentence or punishment. To my mind, it makes little sense to say that a defendant is “innocent” or “guilty” of a sentence. The concepts of “innocence” and “guilt” apply only to the commission of a crime. A sentence is not a crime. The Supreme Court has employed this expression as a means of translating from the guilt phase of a trial the idea that a defendant can be “ineligible” for a certain sentence. As I discussed above, a person guilty of a murder not accompanied by at least one statutory aggravating circumstance (i.e\, “simple murder”), is not eligible for a death sentence. I will refer to “innocence of sentence” to mean “innocent of a crime the commission of which makes the offender eligible for the death penalty.”
The majority purports to articulate a standard to determine whether a constitutional error has skewed a “sentencing body’s deliberative process ... to such a degree that its ultimate conclusions are probably factually in error.” Ante at 468. Asking the wrong question necessarily begets the wrong answer. When a defendant is eligible for the death penalty (by virtue of having committed first-degree murder accompanied by at least one statutory aggravating circumstance), it is nearly impossible to determine that the sentencing body’s ultimate conclusion that imprisonment is more appropriate than the death penalty (or vice versa) is “correct” or “accurate,” or “incorrect” or “inaccurate.”
The nature of the question asked by the majority illustrates its misinterpretation of the “actual” or “factual” innocence standard. While factual errors can undermine the factual premises from which the sentencing body reaches its ultimate conclusion, one can never say that the ultimately discretionary choice by the sentencing body is “factually in error.” Other than in the context of a general proportionality review, a court lacks objective criteria by which to divine that it is “factually incorrect” to sentence a particular death-eligible defendant to death, or to life imprisonment instead. So long as the defendant has committed murder accompanied by at least one statutory aggravating circumstance, (and there are no factual errors that undermine this finding), there can be no “correct” or “incorrect” sentencing outcome.
It is, however, possible to determine that a constitutional error led to a factual error, and that the factual error probably influenced the sentencing body to select the death penalty. In fact, courts often define “prejudicial error” in just this fashion. It is within Congress’ power to enable federal courts to review these errors in habeas proceedings, regardless of a litigant’s procedural default or of an abuse of the writ. The Supreme Court has interpreted habeas jurisdictional statutes to require, in such defaulted or abusive cases, more than prejudicial error.16 The Court reached this conclusion in light of certain expressions of congressional intent and a serious concern for comity and finality.
In answering what I perceive to be both a wrong and an unanswerable question, the majority proposes a test that equates “correctness” or “accuracy” of sentence with a deliberative process free from factual er*487rors that affect the exercise of discretion. According to the majority, if the petitioner makes a colorable showing of the following, he is entitled to a hearing on the merits of his claim — regardless of an unex-eused procedural default or an abuse of the writ:
(1) the sentencing body was under a mis-perception as to the factual background of either the offender or the offense, and
(2) but for those factual misperceptions held by the sentencing body, the petitioner probably would not have received a sentence of death.
Ante at 468-69.
The majority’s test has only a slight bearing on the petitioner’s “innocence” of the sentence imposed. It instead looks to the purity of the deliberative process and grants relief for errors that probably affected the outcome. The majority holds that a petitioner is “guilty” of the death penalty only if the process by which he received that sentence is absolutely free from any omissions or presentations of fact that might have influenced the sentencing body’s exercise of discretion. Conversely, a petitioner is “actually innocent” of the death penalty, according to the majority, if any “factual” error with regard to aggravation or mitigation probably influenced the deliberative process. In short, the majority sets forth a roughly accurate description of the standard for evaluating the significance of a timely raised allegation of constitutional error in connection with the sentencing process.17
V. THE “ELIGIBILITY TEST” FOR “ACTUAL INNOCENCE”
The majority points out that under one interpretation of our en banc decision in Moore v. Zant, 885 F.2d 1497 (11th Cir.1989), a petitioner must make a colorable showing that a constitutional error led to a factual mistake with regard to his eligibility for the death penalty. Ante at 470. Under this reading of Moore, the petitioner must demonstrate tenably a factual error in either the conclusion that (1) he committed the underlying murder, or (2) at least one statutory aggravating circumstance accompanied the murder. See id. at 1513. Indeed, this is precisely what we held in Moore.
The majority, apparently reading Moore as holding what the dissent felt it should have held, rejects this interpretation as (1) inconsistent with the common understanding of “innocence of the death penalty,” or as an improper translation of the “actual innocence” test in the capital sentencing context, and (2) contrary to fundamental principles that govern the imposition of capital punishment. I will consider each of these points.
Although there are doctrinal particulars that a clear majority of the Justices have not yet accepted,18 the Supreme Court has placed beyond dispute several aspects of its “fundamental miscarriage of justice” doctrine. On June 26, 1986, the Court announced three significant decisions that establish the circumstances under which a federal court may review the merits of a claim that is otherwise procedurally barred or subject to the abuse of the writ doctrine.
In Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (5-4 majority), a majority of the Court held that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” This statement expresses a fundamental tenet of our administration of criminal law: “an inno*488cent person ... in custody or in jeopardy of the execution of a death sentence [must have unlimited opportunities] to repair to a court of justice for relief.” Gunn v. Newsome, 881 F.2d 949, 966 (Hill, J., dissenting).19
In Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986), the same five Justices acknowledged the difficulties in translating the concept of “innocence” from the guilt phase of a capital trial to the sentencing context. See Clark v. Dugger, 901 F.2d 908, 914 (11th Cir.1990). The Smith v. Murray Court also reiterated that, even in the sentencing context, courts must continue to distinguish between “ ‘actual,’ as distinct from ‘legal,’ innocence.” 477 U.S. at 537, 106 S.Ct. at 2666. The majority again rejected the view that certain claims other than those implicating “actual innocence” can rise to the level of a “miscarriage of justice.” 20
A more recent majority of the Court expressly reaffirmed its holding that the “actual innocence” test limits a federal habeas court’s authority to reach the merits of defaulted claims for which a petitioner cannot demonstrate cause. Dugger v. Adams, 489 U.S. 401, - n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989).
In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), a plurality of the Court held that the “ends of justice" require a federal court to entertain successive petitions otherwise barred by the abuse of the writ doctrine “only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Id. at 454, 106 S.Ct. at 2627.21
In both Smith v. Murray and Dugger v. Adams, as in the present case, the Court considered allegations that constitutional errors in those cases led to factual inaccuracies in the sentencing process. In Smith v. Murray the Court considered the importance under the “actual innocence” standard of certain highly prejudicial statements made by the defendant to his court-appointed psychiatrist. The trial court admitted these statements at Smith’s sentencing in violation of Smith’s Fifth and Sixth Amendment rights. Like Johnson, Smith had defaulted on these claims. The Court found that the alleged error did not concern a factual “inaccuracy” in the sentencing process since the inadmissible evidence was both probative and reliable. The majority in the case at hand attempts to distinguish Smith v. Murray by noting that Johnson’s allegations of error do in fact involve claims of factual inaccuracies. Ante at 467-68.22
*489The majority ignores the “critical role” that the alleged error in Smith v. Murray “played ... in the determination that death [was] an appropriate penalty”; that error, in fact, “made the difference between life and death in the jury’s consideration of [Smith’s] fate.” Id. at 539, 106 S.Ct. at 2668 (Stevens, J., dissenting). The Court recognized that Smith was “legally innocent” in the general sense, that if the trial court had properly suppressed his statements the sentencing body probably would have imposed life imprisonment rather than the death penalty. The Court nevertheless held that the claim was “unrelated to [actual] innocence.” Id. at 539, 106 S.Ct. at 2668. The sentencing body in Smith v. Murray would have remained free, even if the trial court had excluded Smith’s statements, to impose the death penalty; thus Smith’s claim of error did not implicate his “actual innocence” of the death penalty.
In other words, while factual inaccuracy in the guilt or sentencing context may well be necessary to a claim of “actual innocence,” factual inaccuracy is not sufficient unless the inaccuracy demonstrates, at least colorably, that the petitioner is “actually innocent,” or ineligible for, either an adjudication of guilt or the sentence imposed. If, as I have explained above, prejudicial factual inaccuracy alone is enough to warrant review of a defaulted claim, then the “actual innocence” standard is meaningless.23
I recognize that the Court has not expressly defined “actual innocence” in the context of the death sentence. Id. 489 U.S. at-n. 6, 109 S.Ct at 1217 n. 6. In the guilt phase of a trial, a defendant is “innocent” of the crime if, under the alleged facts, he or she is not eligible for an adjudication of guilt. As I explain below, “actual eligibility” and “legal eligibility” are distinct; however, a defendant is “innocent” of a crime only if he is ineligible for an adjudication of guilt — either by virtue of a (correct or incorrect) finding of innocence, or through objective facts that prove that a *490guilty finding was wrong because the defendant did not commit each and every element of the crime charged.
A properly convicted defendant’s claim to “innocence” in the sentencing context is likewise tied to eligibility. A convicted defendant is eligible for any punishment within the discretion that the legislature accords the sentencing body. One cannot say that the defendant is “innocent” of the sentence imposed if the defendant actually committed the necessary acts that would make him eligible for the particular punishment chosen. Even if the guilty defendant can demonstrate that a constitutional error led to a factual inaccuracy — which in turn prejudiced the outcome of the sentencing body’s deliberative process — the defendant is not “innocent” of the sentence imposed.
The somewhat narrower scope of “innocence” in the sentencing phase of a trial, as compared to the guilt phase, results from the unique role that discretion plays in sentencing. The discretionary nature of sentencing necessarily reduces the objective criteria by which a court may determine that a particular sentence is “wrong” or “unauthorized.” Only under very limited circumstances is a court competent to determine that a defendant is ineligible for a particular sentence despite the sentencing body’s decision to the contrary. In the guilt phase of a trial, innocence and guilt have an objective existence that a court may under certain circumstances discern— either at trial or in a collateral proceeding. The petitioner may assert new facts (or improperly excluded facts) with regard to guilt, and a court may determine that, given those facts, a finding of guilt was unauthorized.
At sentencing, by contrast, there are few “elements” necessary for a particular sentence. A showing that an erroneous factual premise probably influenced the sentencing body does not necessarily mean that the defendant is “innocent” or ineligible for the sentence imposed. Only under very limited circumstances may a court determine that a factual showing demonstrates the defendant’s ineligibility for the sentence imposed in light of purportedly inaccurate or incomplete facts.24 The sentenced defendant must demonstrate not merely that the error affected the sentencing outcome, but that the error resulted in a sentencing outcome for which the defendant is not eligible by virtue of his conduct.
In the capital sentencing context, the defendant becomes eligible for the death sentence only if the sentencing body correctly finds that he has committed a crime for which the sentencing body could, in its discretion, sentence him to death.
The Eighth and Fourteenth Amendments to the Constitution, together with the pertinent state law capital punishment statute, afford the capital defendant a number of protections against an arbitrary and capricious imposition of the death penalty. If the defendant raises an error in a timely fashion (or furnishes a sufficient legal excuse for untimeliness), a federal habeas court will grant an appropriate remedy for a violation of the defendant's statutory or constitutional rights that probably affected the outcome of the sentencing body’s deliberative process. The defendant is afforded numerous opportunities to have a court consider the merits of his claims.25
*491Nevertheless, any error that does not affect the defendant’s eligibility for the death sentence does not implicate his “innocence” of that sentence. If, despite the alleged error, a reasonable sentencing body could impose death as a punishment for the crime committed, the defendant is not “innocent of the death penalty.”
The Supreme Court has expressly acknowledged that there are two distinct types of eligibility for a finding of guilt or the imposition of a particular sentence. I speak here of “ ‘actual,’ as distinct from ‘legal,’ innocence.” Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at 2666. At trial, the defendant is legally innocent if the state fails to present legally competent evidence sufficient to prove beyond a reasonable doubt that the defendant committed every element of the crime charged. If a convicted defendant demonstrates that a constitutional error influenced the jury to find that the state proved its case beyond a reasonable doubt where, absent the error, the state could not have, the defendant has made a colorable showing of legal innocence. If, for example, the state convicts a defendant largely on the weight of a confession that the defendant alleges the state obtained in violation of his Fifth Amendment right against self-incrimination, and it appears that the jury would necessarily have entertained a reasonable doubt in the absence of such evidence, the defendant's alleged constitutional error makes-a color-able showing of legal innocence.26 If the judge had excluded such evidence at trial, the prosecution could not have carried its burden of proving each element of the crime beyond a reasonable doubt. This claim would afford the petitioner relief if he asserted it in a timely fashion. The same is not the case if, like Johnson, the petitioner defaults on the claim.27
After the petitioner has defaulted on the claim, the focus of review narrows and a federal habeas court may not hear the claim unless the petitioner overcomes the jurisdictional bar by making a colorable showing that he is “actually innocent” of the crime. If the confession is reliable, then the defendant is not “actually innocent” of the crime — even if the state could not have proven him guilty without the confession.28
VI. THE MAJORITY’S CRITIQUE OF THE “ELIGIBILITY TEST”
The majority claims that a definition of “actual innocence” that depends upon the petitioner’s ineligibility for the sentence “transform[s] the accepted meaning of being innocent of the death penalty.” Ante at 473. A defendant is “innocent of the death penalty” if, the majority observes, see ante at 473, the sentencing body determines that under the circumstances *492presented by the prosecution and the defendant, life imprisonment is the more appropriate punishment.29 Likewise, if a jury finds a defendant innocent of a particular crime, he is “innocent” in the general sense that no court can reweigh the evidence and impose a guilty verdict. Even if the defendant did in fact commit each element of the crime, the state failed to prove its case to the jury beyond a reasonable doubt.
The majority's observation is irrelevant to an analysis of “innocence of the death penalty” when the sentencing body has found, as in Johnson’s case, that the death penalty is the appropriate punishment for the crime committed. I submit that so long as the petitioner has made no showing that the alleged error deprived the sentencing body of discretion to impose the sentence of death, the petitioner has not made a showing of “actual innocence.” If the petitioner demonstrates that an alleged constitutional error probably influenced the sentencing body to choose the death penalty where it otherwise would not have done so, he has made a colorable showing of prejudicial error, or perhaps “legal innocence.” These observations do not “transform” what it means to be “innocent of the death penalty”; they merely clarify the distinction between “legal” and “actual” innocence.30
According to today’s majority opinion, a colorable showing of “legal innocence” is tantamount to a showing of “actual innocence.” Even if, despite the alleged constitutional error, the sentencing body could have chosen the death penalty, the defendant is “actually innocent” of the death penalty if the error probably influenced the sentencing choice. Ante at 472-73. “[I]t is not necessary,” according to the majority, “to establish that one is innocent of all aggravating circumstances” in order to demonstrate that one is innocent of the death penalty. Ante at 473 (emphasis added). Similarly, a defendant need not disprove each and every element of the crime charged in order to establish his innocence. The majority’s observation merely clarifies that even if the state could prove the defendant guilty of at least one statutory aggravating circumstance, the petitioner remains free to prove that but for the alleged error, the sentencing body probably would have chosen life imprisonment despite the existence of one or more statutory aggravating circumstances.
As with its earlier observation, the majority’s analysis is inapplicable to the question at hand. The test that I propose for determining “actual innocence” of the death penalty only requires the petitioner to disprove one essential element of the crime for which the sentencing body has imposed the death penalty. As I explained above, under current Supreme Court case law, a sentencing body may impose the death penalty for what I term “aggravated murder,” or “first-degree murder accompanied by at least one statutory aggravating circumstance.” To require the petitioner to make a colorable showing that (1) he did not commit the underlying murder, or (2) no statutory aggravating circumstances accompanied the murder, is to demand no more than that the petitioner demonstrate an absence of at least one of the elements of a crime for which he is eligible to receive *493death as a punishment.31
The majority’s final critique of the standard that I have outlined is that it conflicts with a fundamental principle of the Supreme Court’s modern capital jurisprudence — the requirement of an individualized sentencing process. The majority suggests that to review the merits of Johnson’s claim, despite his unexcused default, would further protect his constitutional right to an individualized consideration of all relevant mitigating circumstances.
Virtually every petitioner could argue that reviewing the merits of his constitutional claim despite a default would further protect the right at issue. The petitioner in Smith v. Murray, for example, argued that the Due Process Clause entitled him to a sentencing process free of constitutionally inadmissible and highly prejudicial statements made in confidence to his psychiatrist. By the same token, the petitioner in Dugger v. Adams, maintained that the Eighth Amendment entitled him to a sentencing process free from the taint of jury instructions that distorted the jury’s understanding of its responsibility. In fact, every petitioner could marshal the same argument in favor of infinite opportunities for review each time a habeas court refuses to reach the merits of a waived or defaulted claim. The dissenters in Murray v. Carrier, Kuhlmann, Smith v. Murray, and Dugger v. Adams have argued for this broader reading of “miscarriage of justice” that would vindicate the interest in protecting these rights despite procedural default. See footnotes 19 and 20 above. A majority of the Supreme Court has consistently rejected this position. The Court has steadfastly held that neither the Constitution nor federal statutes support this expansive notion of habeas jurisdiction.
If the petitioner cannot demonstrate either an excuse for the default or a color-able theory of “actual innocence,” the damage to comity and finality, and the need to avoid the “sporting theory of justice” that has arisen from virtually ceaseless criminal appeals and repetitive habeas review, outweighs the benefit of expanded review.32 The Court has also made clear that the limitations on habeas jurisdiction over defaulted claims apply in capital cases despite the irrevocable nature of the death penalty. Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2667.
VII. CONCLUSION
As the majority observes, the Constitution and state death penalty statutes protect the process by which the capital defendant is sentenced. Any violation of these protections will afford the petitioner relief if the error is timely raised and the defendant suffered prejudice as a result.33
However, a court must look to the present definition of capital murder to de*494termine whether the petitioner has made a colorable showing of “actual innocence” of the death penalty, as Johnson has failed to do so in this case. A “fundamental miscarriage of justice” arises only when the sentencing body exercises its otherwise unre-viewable discretion to impose the death penalty on a person who committed no crime for which the state could sentence him to death.
Because the majority has decided this case in conflict with that fundamental principle of habeas jurisdiction, I respectfully dissent.
. The majority's new standard, which requires a federal court to review the merits of a claim whenever an alleged constitutional error probably influenced the sentencing body to impose the death penalty, applies as a general “miscarriage of justice” exception to claims that are otherwise (1) procedurally barred, (2) an abuse of the writ, or, as in the case under review, (3) barred under both doctrines. Review under the majority’s standard is therefore unlimited.
. I have noted elsewhere the dangerous tendency of federal courts to manipulate the jurisprudence of federal habeas review in order to vindicate constitutional claims that petitioners have long since waived and that do not affect the petitioner’s underlying guilt or his eligibility for a particular punishment. See Gunn v. Newsome, 881 F.2d 949, 966 (11th Cir.1989) (Hill, J., dissenting) ("Our [federal judges'] yearning for finality does not often equal our delight in insinuating our own ideas of right and wrong into the judgments of state courts. We tip our hats to finality, but create most ingenious contrivances to avoid it.”)
.My disagreement with the majority’s decision in this case assumes for the sake of argument that, as the majority holds, Johnson has failed to demonstrate sufficient legal cause for his failure to make a timely assertion of his claims. Thus, my comments concerning the need to show actual innocence presupposes that the pe*481titioner in question cannot demonstrate cause and prejudice.
. In other words, even if I (1) agreed with the majority’s impression of Johnson’s culpability under the facts of this case, and (2) shared the majority's enthusiastic assessment of the prejudice suffered by Johnson through the failure to present his newly proffered psychological evidence, I would conclude that Johnson has asserted at best a colorable claim of legal innocence or actual prejudice, rather than the demonstration of actual innocence necessary to overcome an unexcused procedural default.
. There was some dispute as to whether Johnson actually used the term "son-of-a-bitch” before shooting Moulton; however, the Florida Supreme Court and a prior panel of this court rejected this claim as meritless. See Johnson v. Wainwright, 806 F.2d 1479, 1487 (11th Cir.1986).
. The record reflects that Johnson's court-appointed psychiatrist did in fact testify that Johnson suffered from an inability to control his emotions in high stress situations.
. A remand to determine whether Johnson’s counsel did in fact make a strategic choice not to pursue and develop drug compulsion/duress theory of mitigation is unnecessary since this issue relates to a question on the merits that neither the district court nor this court can reach in light of the procedural default and the absence of a colorable showing of "actual innocence.”
. See, e.g., Ga.Code Ann. § 26-1005 (Supp.1971) (effective prior to July 1, 1969). The jury’s "recommendation of mercy” was both mandatory and unlimited in Georgia. Id. The court had no discretion to impose the death penalty if the jury recommended mercy. The trial court could impose absolutely no limits on the jury’s ability to grant mercy for any reason whatsoever. Wyatt v. State, 220 Ga. 867, 142 S.E.2d 810 (1965) (trial court committed reversible error by limiting the jury’s discretion to grant mercy according to "the evidence and circumstances” of the case); Jennings v. State, 212 Ga. 58, 90 S.E.2d 401 (1955) ("any instruction which tends to qualify th[e] right [to grant mercy], or point to the manner of its exercise, is cause for setting aside a verdict where no recommendation [for mercy] is made”); Hill v. State, 72 Ga. 131 (1883).
. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (mandatory death penalty statute unconstitutional); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (same). See also, Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977) (mandatory death sentence for killing of police officer unconstitutional).
. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (upholding guided discretion statute that requires the establishment of certain aggravating circumstances); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (upholding guided discretion statute that requires establishment of certain aggravating circumstances and a balancing of circumstances); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (upholding guided discretion statute that includes, among other factors, future dangerousness in the determination of whether to impose death).
.I suggest that for a full understanding of Zant v. Stephens it is well to review the Supreme Court of Georgia's response to the Court’s certified question found in the full bench decision of the court in Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982).
. To my knowledge, the pre-Furman statutes rarely employed the term "aggravating circumstance.” See, e.g., Ga.Code Ann. § 26-1005 (Supp.1971) (effective prior to July 1, 1969). Sentencing authorities implicitly gave effect to the concept of an "aggravating circumstance," however, by factoring in such a condition as a "reason not to recommend mercy.”
. Justice Scalia argues that Lockett "completely exploded whatever coherence the notion of 'guided discretion' once had.” Walton v. Arizona, — U.S. at -, 110 S.Ct. 3047, 3051-52.
. The debate with regard to the ideal level of discretion in capital sentencing predates Fur-man. State jurists have long recognized the strain that develops when attempts to confine discretion in sentencing collide with the need for individualized sentencing. Compare Wyatt v. State, 220 Ga. 867, 142 S.E.2d 810 (1965) (Chief Justice of Georgia Supreme court critical of rule that forbids any limits on jury’s discretion to grant mercy and makes it error for trial judge even to require sentencing jury, in deciding between death and life imprisonment, to take "into consideration all the facts and circumstances of the case.”), with Chatterton v. Dutton, 223 Ga. 243, 154 S.E.2d 213 (1967) (upholding unlimited discretion in granting mercy against due process challenge).
.Of course, the state could not urge race, sex, or constitutionally protected activity as an aggravating factor. See footnote 11 above.
. The majority attempts in vain to distinguish its standard from the ordinary test for prejudice. The majority is correct that the Supreme Court's has admonished courts to apply the test for "actual innocence" in light of all probative evidence, including evidence that was admitted (or not brought before the sentencing body) as a result of constitutional error. See ante at 467-469. See Kuhlman, 477 U.S. at 454 n. 17, 106 S.Ct. at 2627 n. 17, (citing Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)); Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668. I recognize that the majority applies its test in light of all probative evidence. My concern is that the majority's test seeks to answer the wrong question. The majority's standard asks whether, but for a factual misimpression with regard to aggravation or mitigation, the sentencing body probably would have exercised its discretion in a different manner. The Supreme Court has made clear that the question is whether, in light of all probative evidence, including evidence that was or was not admitted as a result of the alleged constitutional error, the petitioner has made a colorable showing that he has suffered a conviction or received a punishment that the adjudicator of guilt or the sentencing body was not free to impose under the actual facts.
. The majority’s heavy reliance on Porter v. Wainwright, 805 F.2d 930, 936 (11th Cir.1986), and similar cases, see ante at 462, makes clear that it seeks to replace the Supreme Court's "actual innocence" test with the standard presently used to determine prejudice in the sentencing context. Porter did not involve either a procedural default or an abuse of the writ, both of which the majority concedes are present in this case. In simple terms, Porter explains the method by which a court determines whether a petitioner is entitled to relief for a constitutional error that is timely asserted (or an untimely assertion of error for which a sufficient legal excuse exists).
. See footnote 21 below.
. The Murray v. Carrier majority made clear that the "actual innocence" test defines the limits of federal habeas jurisdiction to review defaulted claims. Id. 477 U.S. at 493-94, 106 S.Ct. at 2646-47. Cf. id. at 497, 106 S.Ct. at 2650 (Stevens, J., concurring in the judgment) (arguing for a broader standard to determine "fundamental injustice” that warrants a review of the merits; criticizing the "actual innocence” test as unduly restrictive); id. 106 S.Ct. at 2678 (Brennan, J., dissenting) (making similar arguments to the effect that the Court should employ a balancing test to determine whether review of a defaulted claim is appropriate). The test announced by the majority today pays lip service to the "actual innocence test” as a limiting principle of habeas jurisdiction, but has the practical effect of making reviewable the broader class of defaulted claims urged by the dissenters in Murray v. Carrier and the other cases discussed in the text below.
. Id. 477 U.S. at 542, 106 S.Ct. at 2670 (Stevens, J., dissenting) (questioning "why Carrier's clearly correct holding about the propriety of the writ in a case of innocence must also be a limiting principle on the federal court’s ability to exercise its statutory [habeas] authority”) (emphasis in original).
. Justice White voted with the majority in Murray v. Carrier and Smith v. Murray, but neither Justice White nor Justice Blackmun joined either Justice Powell’s plurality opinion or Justice Brennan’s dissent in Kuhlmann. Two members of a panel of this court have suggested in dicta that the Kuhlmann plurality was incorrect to limit federal habeas review of an otherwise barred successive petition only to instances in which the petitioner can demonstrate a color-able showing of "actual innocence.” Martin v. Dugger, 891 F.2d 807, 808-10 (11th Cir.1989).
. Even if I agreed with the majority's characterization of the potential value to Johnson of introducing his proffered psychiatric evidence, I could not agree that the failure to present such evidence resulted in the admission of false “facts” and "precluded" the development of true *489"facts.” See ante at 475. First, even assuming arguendo that the sentencing attorneys did not exercise reasonable professional judgment in failing to apprise Dr. Yarbrough adequately regarding Johnson’s prior involvement with drugs, or to pursue this theory after the jury recommended life, it seems odd to say that the error "precluded” the development of true facts. I think it fair to presume that Dr. Yarbrough knew that Johnson was convicted for killing a person in the course of robbing a drugstore for drugs, and that the attorneys could expect an examining psychiatrist to have inquired into the patient's involvement with drugs. Second, I submit that neither the judge nor the jury were required to find that the speculative opinion testimony proffered by Johnson today establishes as a matter of law either the statutory or nonstatutory mitigating circumstances suggested by the majority. See ante at 477. Finally, and most importantly, the Supreme Court has made clear that courts must apply the "admission of false facts/preclusion of true facts” test to determine whether the defendant is actually, not legally, innocent of the crime charged or sentence imposed. Thus, even if one could characterize Johnson’s new psychiatric evidence as having caused the admission of false "facts” or “precluded" the admission of true "facts,” such evidence suggests prejudice, not “actual innocence.” See the discussion in the text below.
. Dugger v. Adams also illustrates this point. In that case, the Court rejected the petitioner’s claim that an alleged Caldwell error established a colorable showing of "actual innocence.” See Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The petitioner asserted that the trial judge violated the Eighth Amendment when he mistakenly advised the jury that its sentencing recommendation was merely advisory. The statements purportedly misled the jury as to its role in the capital sentencing process under Florida law. The Dugger v. Adams majority acquiesced in the view (expressed in Justice Blackmun’s dissent) that the alleged Caldwell error did not concern merely "the [erroneous] inclusion or exclusion of particular evidence”; the error was "global in scope” and pervasive in its tendency to influence the jury’s recommendation. 489 U.S. at -, 109 S.Ct. at 1224 (Blackmun, J., dissenting). Rather than refute the dissent’s characterization of the facts, the majority instead expressly rejected the idea that "a fundamental miscarriage of justice results whenever 'there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.’” Id. at-n. 6, 109 S.Ct. at 1218 n. 6 (quoting Blackmun, J., dissenting, id. at -, 109 S.Ct. at 1219 n. 4). Since, as in the case at hand, the sentencing body was free to impose the death penalty despite the alleged error — regardless of whether it would have done so in the absence of the error — the claim did not implicate Adams’ "actual innocence" of the death penalty.
. At risk of belaboring the obvious, I repeat that my comments are confined to an analysis of “innocence," not prejudicial error.
. Roughly speaking, the defendant has at least the following opportunities to obtain relief for an error regardless of his guilt or innocence of the underlying crime: (1) a motion before the trial court to correct or avoid the error, (2) a motion for a new trial in light of the error, (3) a motion to set aside the conviction, (4) a motion to modify his sentence, (5) direct appeal, (6) appeal or petition for review to the state supreme court, (7) petition for certiorari to the United States Supreme Court for denial of direct appeal, (8) collateral attack in a state court, (9) appeal of the denial of collateral relief in state court, (10) a petition for certiorari to the United States Supreme Court for the denial of state collateral relief, (11) a collateral attack in federal district court, (12) appeal of the denial of federal habeas relief in a federal court of appeals, and (13) a petition for certiorari to the United States Supreme Court for the denial of federal habeas relief.
The defendant/petitioner can of course (1) lose on the merits in all of the forums, (2) procedurally default or waive the claim, or (3) abuse the writ and lose the opportunity to assert *491the claim. If the case does not involve the loss of life or liberty, when the petitioner has exhausted or waived his opportunity for review, the result becomes final. Where the petitioner’s life or liberty is involved, however, he is always entitled to obtain review of a colorable claim of "actual innocence."
. See Friendly, supra footnote 16, at 163-64 (making a similar point but distinguishing involuntary confessions).
. The analysis is the same if the alleged error involves the exclusion or failure to present evidence on behalf of the defendant rather than the erroneous admission of evidence. That is, the same logic applies if, as in Johnson’s case, the error concerns the erroneous exclusion of probative and admissible evidence. The fact that the evidence probably would have influenced the jury to make a finding or choose a sentence favorable to the defendant is at best a showing of "legal innocence." If, even in light of the new evidence, a reasonable jury still could have convicted the defendant — or, in the capital sentencing context — if the sentencing body still could have exercised its discretion to impose the death penalty, the defendant is not "actually innocent” of the sentence imposed.
. See Kuhlmann v. Wilson, 477 U.S. at 454, 106 S.Ct. at 2627 (even assuming arguendo that use of cellmate informant violated petitioner’s Sixth Amendment rights, and even though cellmate’s testimony was sine qua non to conviction, petitioner failed to make out colorable showing of "factual innocence”); Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2667 (error in admitting highly prejudicial statements made by petitioner to psychiatrist was “unrelated to [actual] innocence”). Cf. Murray v. Carrier, 477 U.S. at 495-97, 106 S.Ct. at 2649-50 (conditionally dismissing petitioner’s defaulted claim unless trial court determined on remand that victim’s statements established petitioner’s "actual innocence" of rape).
. Note that I refer to the “sentencing authority," not simply “the jury.” In states like Florida, a jury’s recommendation is not mandatory and the "sentencing body’s” responsibility for sentencing in capital cases is shared between the jury and the trial judge. See footnote 33 below.
. The majority seems to acknowledge, see ante at 467-68 that the Supreme Court held in Smith v. Murray that even if the petitioner demonstrates his "legal innocence” of the death penalty (i.e., but for the error the jury would necessarily have chosen life imprisonment), the petitioner is not entitled to relief if he is not "actually innocent” of a death-eligible crime (i.e., the jury still could have, even if it might not in fact have, chosen the death penalty). I reiterate that a colorable showing that the error led to the conviction of one whom the jury would not have convicted, or a punishment that the sentencing body would not have imposed, will entitle the habeas petitioner to relief when he has not defaulted on the claim or abused the writ. Nevertheless, if the untimely claim fails to make a colorable showing that the petitioner was not eligible for such treatment, the petitioner has not demonstrated a “miscarriage of justice" as defined under Murray v. Carrier, Smith v. Murray, Kuhlmann, and Dugger v. Adams.
. I note that under the test I propose today, even a petitioner who is actually guilty of first-degree murder is entitled to the review of a defaulted claim if he can make a colorable showing that the crime of which he is guilty is not a crime that makes him eligible for the death penalty.
. The judicial and scholarly acknowledgement of the institutional costs of the more expansive theory of habeas review, and its drain on the finite judicial capacity to review meritorious claims, is universal. See the authorities cited in Gunn v. Newsome, 881 F.2d at 966 (Hill, J., dissenting).
. The myriad different requirements for the death penalty in various states are irrelevant to whether a petitioner has made a showing of "actual innocence” through his alleged claim of error. In Johnson’s case, Florida requires the sentencing body to balance the aggravating circumstances against the mitigating circumstances. Florida also requires a two-part sentencing process in which the jury makes a recommendation but the trial judge enters the actual sentence. Under Florida law, the court must accord the jury’s recommendation great weight. Tedder v. State, 322 So.2d 908, 910 (Fla.1975). See ante at at 451-52 (describing the Florida override process and its constitutionality).
The balancing and override mechanisms are important in determining whether the sentencing body actually imposes the death penalty where the defendant has been found guilty of a crime which makes the defendant eligible for such a sentence. Likewise, the Caldwell error in Dugger v. Adams and the Fifth Amendment violation in Smith v. Murray were crucial to the sentencing body’s decision to impose the death penalty in those cases. An error in applying these safeguards can provide a basis for relief if the error is timely asserted. However, when the focus narrows to whether the petitioner has demonstrated his potential "actual innocence of the death penalty,” these errors do not suffice to overcome the jurisdictional bar that their default imposes.
*494As the majority stated in disposing of the original Tedder issue in this case,
“federal court review does not encompass an inquiry as to whether the trial judge's decision to override the jury’s recommendation of life imprisonment is consistent with the state law standards established in Tedder and its progeny.... The answer to that question is solely an issue of state law and it is not within our province to second-guess that result_ Instead, our review ... is limited to whether the imposition of the death penalty in that given case is either arbitrary or discriminatory.
Ante at 452.
It follows that our only inquiry with regard to the possible interplay between Johnson's ineffective assistance of counsel claim and Florida's standards for a jury override is whether the Florida Supreme Court’s refusal to reach the merits of Johnson’s claim will result in an arbitrary imposition of the death penalty. See the cases cited ante at 452. The facts persuade me that the imposition of the death penalty is not arbitrary and capricious in light of Johnson’s claim. Johnson was eligible for the death penalty by having committed first-degree murder accompanied by four statutory aggravating circumstances: his crime was "an atrocious and cruel execution murder committed during the commission of an armed robbery by an escaped convict who previously had been convicted of felonies involving the use or threat of violence,” Johnson v. State, 393 So.2d 1069, 1074 (Fla.1980). Moreover, the newly-proffered evidence offered in mitigation is speculative and it may have little relevance to Johnson’s decision to return to the interior of the store and execute his victim. The record simply does not suggest that this is an "extraordinary case” in which an alleged error has resulted in a “fundamental miscarriage of justice.” Dugger v. Adams, 489 U.S. at -, 109 S.Ct. at 1218 n. 6. The Dugger v. Adams Court in fact held that even where “the trial judge ... found an equal number of aggravating and mitigating circumstances!,]’’ an alleged Caldwell error did not result in a fundamental miscarriage of justice. Id. (emphasis added).