concurring in part, dissenting in part, in which KRAVITCH, JOHNSON and CLARK, Circuit Judges, join:
I concur in the court’s resolution of all of the claims presented by Johnson, with one exception. With respect to Johnson’s claim of ineffective assistance of counsel at sentencing, I dissent. Respectfully, I submit that the eligibility theory adopted today by the court is inconsistent with the guidance which the Supreme Court has given us on the meaning of the concept “actually innocent of the death penalty.”
A. Supreme Court Precedent
In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), the Supreme Court acknowledged that the concept of actual innocence does not translate easily into the context of an alleged error at the sentencing phase. In concluding that the claim of error there did not result in a fundamental miscarriage of justice, the Supreme Court made three comments which provide guidance with respect to the meaning of the concept. First, the Court said of the alleged error in Smith that it “neither precluded the development of true facts nor resulted in the admission of false ones.” 477 U.S. at 538, 106 S.Ct. at 2668. Second, the Court assumed that as a legal matter the testimony about the prior school bus incident should not have been presented to the jury. Having assumed error in the admission of evidence, the Court nevertheless said that “its admission did not serve to pervert the jury’s deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society.” Id. at 538, 106 S.Ct. at 2668. Finally, the Supreme Court said: “We similarly reject the suggestion that there is anything ‘fundamentally unfair’ about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination.” Id. at 538-39, 106 S.Ct. at 2668. In other words, in Smith the Supreme Court focused on the accuracy of the sentencing determination.
In Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989), the dissent read Smith v. Murray as establishing the following test: “A substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.” 489 U.S. at 415 n. 4, 109 S.Ct. at 1219 n. 4. The dissent went on to argue that the Caldwell1 claim at issue there was precisely the kind of claim that satisfies the test. The majority did not reject the test suggested by the dissent, but rather rejected the dissent’s application of the test as over-broad.
The dissent “assumes arguendo” that a fundamental miscarriage of justice results whenever “there is a substantial claim that the constitutional violation undermined the accuracy of the sentencing decision.” Post, at 1219, n. 4. According to the dissent, since “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined,” Post, at 1223, the standard for showing a fundamental miscarriage of justice necessarily is satisfied. We reject this overbroad view. Demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is “actually innocent” of the sentence he or she received.
489 U.S. at 417 n. 6, 109 S.Ct. at 1217-18 n. 6. In other words, the Supreme Court rejected the notion that the test is satisfied simply because the generic nature of a claim is such that “by its nature” it “might” affect the accuracy of the sentencing decision. The test is not that; rather, the test is whether the error did in fact undermine accuracy — i.e., whether the individual defendant can demonstrate that he is actually innocent of the sentence.
The most explicit elaboration of what the Supreme Court means by “actual innocence” is contained in the plurality opinion in Kuhlmann v. Wilson, 477 U.S. 436, 106 *1197S.Ct. 2616, 91 L.Ed.2d 364 (1986). In the related context of a successive petition for federal habeas corpus, the plurality held that the analogous “ends of justice” test requires a federal court to entertain a successive habeas petition only where the petitioner makes a “colorable showing of factual innocence.” 477 U.S. at 454, 106 S.Ct. at 2627. The plurality borrowed the standard from Judge Friendly’s famous article2 in order to effectuate “the clear intent of Congress that successive federal habeas review should be granted only in rare cases, but that it should be available when the ends of justice so require.” Id. The Supreme Court elaborated upon the meaning of the standard as follows:
As Judge Friendly explained, a prisoner does not make a colorable showing of innocence “by showing that he might not, or even would not, have been convicted in the absence of evidence claimed to have been unconstitutionally obtained.” Friendly, supra, at 160. Rather, the prisoner must “show a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it), and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of facts would have entertained a reasonable doubt of his guilt.” Ibid, (footnote omitted). Thus, the question whether a prisoner can make the requisite showing must be determined by reference to all probative evidence of guilt or innocence.
Id. at 454 n. 17, 106 S.Ct. at 2627 n. 17 (emphasis in original).
I submit that the Supreme Court has clearly indicated what it means by the term “actually innocent.” The focus is. on the accuracy of the sentencing determination. In the guilt phase, Kuhlmann states the test as whether “the trier of facts would have entertained a reasonable doubt of his guilt” based on the true facts. In the sentencing context, I submit that the Supreme Court contemplates a test which focuses on whether the trier of facts would have imposed a life sentence if the true facts had been presented.
The eligibility theory adopted today by this court is inconsistent with the foregoing Supreme Court precedent. First, everything the Supreme Court has said indicates that the proper analysis revolves around the accuracy of the sentencing determination. In Smith v. Murray, the Supreme Court inquired whether the alleged error “precluded the development of the true facts or resulted in the admission of false facts,” whether the jury’s deliberations were “perverted,” and whether there was a “substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination.” In Dugger v. Adams, the Supreme Court clarified that it was not the generic nature of the alleged error; there had to be more than a mere claim that the alleged error “by its nature” “might” affect accuracy; rather, there must be a showing that the alleged error did in fact cause an inaccurate result. And in Kuhlmann, the Supreme Court made it clear that the analysis focuses on what the trier of facts would have done on the basis of the true facts. The eligibility theory adopted by the court today ignores Supreme Court precedent. The eligibility theory does not focus on the overall accuracy of the sentencing determination. The only thing relevant to the eligibility theory is whether there is at least one aggravating circumstance to make the defendant eligible for the death penalty.
Second, the eligibility theory is inconsistent with the above quotation from Kuhl-mann, which indicates that the proper analysis considers all probative evidence. The eligibility theory does not consider all of the probative circumstances; rather, it looks only to whether there was at least one untainted aggravating circumstance so that the defendant was eligible for the death penalty.
*1198Third, I submit that the majority’s eligibility theory is inconsistent with Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Referring to the miscarriage of justice concept, the Court said:
However, as we noted in Engle, “in appropriate cases” the principles of comity and finality that inform the concepts of cause and prejudice “must yield to the imperative of correcting a fundamentally unjust incarceration.” 456 U.S. at 135, 102 S.Ct. at 1576. We remain confident that, for the most part, “victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard.” Ibid. But we do not pretend that this will always be true. Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habe-as court may grant the writ even in the absence of a showing of cause for the procedural default.
477 U.S. at 495-96, 106 S.Ct. at 2649. The Supreme Court is talking about a last resort standard which is tied to the imperative of correcting a fundamental miscarriage of justice. To fulfill that role, common sense suggests, and indeed Kuhl-mann expressly holds, that the appropriate standard would have to take into consideration all probative circumstances and would have to focus on what the result would have been based on the true facts. In contrast, the eligibility test ignores the totality of the circumstances and ignores the basic concept of a fundamental miscarriage of justice; instead, it focuses in a rigid and mechanical manner upon a single circumstance, i.e., whether or not at least one aggravating circumstance is present.3
It is instructive to translate the eligibility theory from the sentencing phase to the guilt phase. The majority’s analysis of the historical evolution of death penalty jurisprudence since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), leads it to conclude that the death penalty today is really the equivalent of the new substantive offense of “aggravated murder.” However, even assuming the appropriateness of such an analogy, the state of Florida has defined the “substantive offense” as including the elements of murder plus two other elements — the existence of a statutory aggravating factor and the lack of sufficient mitigating circumstances to outweigh the aggravating factors. See Fla.Stat.Ann. § 921.141(2) (West 1985). The majority’s analysis looks only to the first element. Although it is true that the second element is dependent on discretion, this is certainly also true of other substantive offenses as well. For example, the difference between voluntary manslaughter and murder often turns on the fact-finder’s discretion with respect to whether sufficient provocation exists. The court today wholly ignores the second element and thus produces a fundamentally flawed analysis.4
*1199Finally, the eligibility test is inconsistent with Supreme Court precedent as revealed by a close reading of Smith v. Murray, supra, and Dugger v. Adams, supra. In both of those cases, there were other aggravating circumstances which could not have been tainted by the alleged constitutional error. Had the Supreme Court intended to adopt an eligibility test, it would merely have noted the existence of the untainted aggravating circumstance, concluded that the defendant was still eligible for the death penalty, and thus found that the miscarriage of justice standard was not satisfied. In fact, in Smith v. Murray, the Fourth Circuit had expressly relied on the fact that there were two aggravating circumstances and the alleged error related to only one of the two aggravating factors. The Supreme Court expressly noted this fact and the Fourth Circuit’s reliance on it. 477 U.S. at 532, 106 S.Ct. at 2665. Thus, the fact that is crucial to the eligibility test was apparent to the Supreme Court, but the Supreme Court analysis focused not on eligibility, but rather on the accuracy of the sentencing determination.
B. Precedent Other Than Supreme Court
Over 100 cases have considered the miscarriage of justice exception since Smith v. Murray, supra, was handed down. No court has adopted the eligibility theory articulated by this court today. Most of the cases have merely concluded in a rather summary manner that the miscarriage of justice standard was not satisfied. However, the Eighth Circuit has very clearly adopted substantially the same standard that I propose. The Eighth Circuit articulates the standard this way:
In the penalty-phase context this exception will be available if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.
Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1989); Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989). See also Henderson v. Sargent, 926 F.2d 706 (8th Cir.1991).
C. The Appropriate Standard
Certain themes can be culled from the Supreme Court and other precedent discussed above. First, we know that a constitutional claim that challenges only the admissibility of certain evidence without also contesting the reliability of that evidence provides insufficient grounds to excuse a procedural default. Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668. Second, we know that the appropriate standard focuses upon the accuracy of the sentencing determination. Smith v. Murray, 477 U.S. at 38-39, 106 S.Ct. at 2668. (“The alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones”; “its admission did not serve to pervert the jury’s deliberations”; “substantial claim that the alleged error undermined the accuracy of the guilty or sentencing determination”). Third, we know that the appropriate standard does not focus on the generic nature of a claim that “by its nature” “might” affect the accuracy of the sentencing decision; rather, the test is whether the error did in fact undermine accuracy. Dugger v. Adams, 489 U.S. at 417 n. 6, 109 S.Ct. at 1218 n. 6. Fourth, we know that the appropriate standard focuses upon what the trier of fact would have done on the basis of the true facts. Kuhlmann v. Wilson, 477 U.S. at 454 n. 17, 106 S.Ct. at 2627 n. 17 (“the trier of facts would have entertained a reasonable doubt of his guilt” based upon “all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial”). Finally, we know that the standard must be one reserved for the extraordinary case.
Drawing upon the foregoing Supreme Court precedent, I submit that the appro*1200priate standard should be as follows: The miscarriage of justice concept permits consideration of a defaulted claim, even in the absence of a showing of “cause,” where the alleged constitutional error has resulted in a factually inaccurate sentencing profile, and the inaccuracies are so significant that the result would have been different.
The court, in adopting the eligibility test today, is apparently motivated by a desire to implement the Supreme Court mandate that the miscarriage of justice concept be reserved for the extraordinary case. Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. Respectfully, I submit that it is feasible to honor this mandate, without ignoring, as the court does today, the Supreme Court’s mandate that the appropriate standard focus upon the accuracy of the sentencing determination. I submit that the standard I propose will be reserved for the rare case. Over 100 cases have considered the miscarriage of justice concept since Smith v. Murray, supra, was handed down. Almost no case has found that the standard was satisfied.5
Although most of the cases discuss the standard in summary fashion, because the standard I propose reflects the common sense meaning of the language used by the several applicable Supreme Court decisions, I submit that the cases have applied a similar standard. The Eighth Circuit has expressly done so. See Stokes; Smith, supra. No case has given the slightest indication of adopting the novel eligibility test adopted by the majority. Thus, the fact that over 100 cases have applied the standard, and so few have held that the standard was met, including no case in the capital sentencing context, provides strong evidence that the standard does implement the Supreme Court mandate that it be reserved for the extraordinary case.
To further ensure that the standard is reserved for the rare case, I propose an outcome determinative standard under which the reviewing court must conclude that the factual inaccuracies were so significant that it is more likely than not that the result would have been different.6 This is the higher standard which the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rejected in favor of the lower “reasonable probability” standard to govern analysis of the prejudice prong of ineffective assistance of counsel. The Supreme Court described this higher standard as follows:
*1201On the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence.
Id. at 693-94, 104 S.Ct. at 2068. The higher, more likely than not, standard was not appropriate for the prejudice prong of ineffective assistance of counsel, but it is appropriate for the actual innocence exception. Here the “profound importance of finality in criminal proceedings” must be reflected.7
D. Application of the Standard to the Instant Case
The alleged constitutional error at issue in this case is ineffective assistance of counsel at sentencing. As indicated in the opinion for the court, the record indicates that the attorneys who conducted the sentencing phase were not present during the guilt phase. Petition at 78; Appendix 4 (Affidavit of Terry Terrell). The guilty verdict was returned on December 8, 1978. The penalty phase was to begin at 9 a.m. on December 9, 1978. The record indicates that counsel did not begin to look for a psychiatrist or psychologist to testify at the penalty phase until after the guilty verdict, i.e., until the day before sentencing. However, counsel did locate Dr. Yar-brough and were able to take Dr. Yar-brough to the jail at approximately 11 p.m. the night before sentencing. Record at 1619. However, counsel did not inform Dr. Yarbrough of Johnson’s history of drug addiction. Petition at 25; Appendix 1 (Affidavit of Dr. Ronald Yarbrough). Dr. Yar-brough had IV2 to 2V2 hours to interview, examine, and test defendant Johnson.
Dr. Yarbrough did testify the next morning before the jury. He was candid in saying that because of the time constraints his evaluation was only sufficient to draw a strong hypothesis. We also know from the motion for continuance that Dr. Yar-brough’s evaluation was only preliminary and that additional testing and evaluation were needed.
Dr. Yarbrough told the jury that Johnson had a high average range of intelligence, and an extremely high level of common sense. He testified that Johnson was a survivor, that he thought quickly on his feet, and was a good decision maker. He testified that Johnson had a good sense of humor, had a good perception of things, was in contact with reality, and was not schizophrenic or psychotic. He testified that Johnson had positive feelings about his family. The sole mitigating evidence which Dr. Yarbrough presented to the jury was that Johnson was relatively free of conflicts and did not have significant anxiety until he got into serious difficulty; however, the tests strongly suggested that under states of intense emotional stimuli, Johnson’s normal modes of behavior, of decision making and seeing things would deteriorate. Defense counsel asked Dr. Yarbrough a question which was obviously an attempt to elicit evidence in support of the statutory mitigating circumstance relating to emotional disturbance:
*1202And would his response in those situations — in those stressful situations, be characterized — could it be characterized or would you characterize it as the product of a mental or emotional disturbance?
Dr. Yarbrough’s answer was merely:
Well, I would say that his ability to think and make decisions at a level that he’s capable of functioning in a non-stressful situation deteriorates dramatically.
Record at 1521. On cross-examination, Dr. Yarbrough expressly conceded that there was no evidence of the statutory mitigating circumstance relating to the lack of capacity to appreciate the criminality of his conduct.
It is instructive to compare the foregoing testimony with the proffer in the instant proceedings that Dr. Yarbrough, if he had had appropriate time to evaluate Johnson and if he had known Johnson’s mental health history including in particular his history of drug addiction, would have testified as follows. Dr. Yarbrough would testify that Johnson’s addiction far exceeded that of a normal addict. Based on the newly-adduced evidence of the very severe drug addiction and the evidence of Johnson’s abuse of drugs immediately preceding the instant murder, Dr. Yarbrough’s professional opinion was that Johnson’s “severe addiction was the primary guiding force in his life around the time of June, 1978,” that Johnson was “under the influence of a totally controlling, extreme drug addiction which would have led to his mind being totally controlled by the presence or absence of drugs. In my professional opinion, this would qualify under mitigating circumstances for the F.S.1985, § 921.141(6)(b)” [the extreme mental or emotional disturbance mitigating circumstance].8 Dr. Yarbrough would also give his professional opinion that Johnson
acted under extreme duress, when fired upon, and as indicated from his psychological testing, went into a totally emotional, irrational mode of response. At that instant, my opinion is that, due to his drug abuse and combined emotionality of the moment, Marvin’s [Johnson’s] capacity to appreciate the criminality of his behavior or to conform to the requirements of the law were substantially impaired. This set of circumstances would qualify under F.S.1985, § 921.141(6)(e) and (f) [the extreme duress mitigating circumstance and the capacity to appreciate the criminality or to conform to the law mitigating circumstance].9
Other proffered evidence tends to confirm Dr. Yarbrough’s revised assessment. Johnson has now been evaluated by Dr. Robert A. Fox, Jr. and by Dr. Peter Maca-luso. Both of them conclude that Johnson’s physical and psychological addiction was so overwhelming that it overpowered his capacity for rational thought.10 Both doctors conclude that Johnson’s voracious appetite for drugs together with the fact that he had consumed a large variety of addictive narcotics on the day of the offense and the stress Johnson experienced when the victim began firing at him rendered Johnson unable to curtail his criminal actions or appreciate the nature of his actions.11
Moreover, it is significant that Johnson’s drug addiction began not in the usual way which a fact finder might ordinarily condemn, but as a result of a motorcycle accident. The proffered evidence indicates that Johnson’s drug addiction began as a result of the severe pain Johnson experienced from a serious back injury in a motorcycle accident. When the prescribed pain medication was discontinued, Johnson began self administering illegal narcotics in an attempt to ease the continuing pain.12
*1203The significance of the new evidence is obvious. It is fair to say that there was no such mitigating evidence at sentencing. The sentencing judge so found. Now the proffered evidence indicates the presence of three statutory mitigating circumstances. See Fla.Stat. § 921.141(6)(b) (“The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance”); § 921.141(6)(e) (“The defendant acted under extreme duress or under substantial domination of another person”); § 921.141(6)(f) (“The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired”).
The primary claim of ineffective assistance of counsel in this case is that counsel had a little over one month between the jury sentencing on December 9, and the sentencing hearing before the judge on January 12. Counsel knew that Dr. Yar-brough’s evaluation was preliminary and that further evaluation was needed. However, counsel did not utilize that time to complete the mental health evaluation, and present the substantial mitigating evidence that was available.
It is also significant that the record suggests that the sentencing judge overrode the jury verdict of life imprisonment and imposed the death penalty because he believed that there were no mitigating circumstances. See Record at 1723. The gist of the prosecutor’s argument was that the judge should impose the death penalty because there were no mitigating circumstances. The prosecutor argued that there were no mitigating circumstances, and on that basis urged the sentencing -judge to impose the death penalty.
Your honor, don’t give some defendant who later comes before ... [a court] — to build a record on appeal by sentencing this defendant to life, and they say— “[w]ell look at all the aggravating circumstances this defendant had, and there weren t any mitigating circumstances, and he got life.
Record at 1756. In the written findings to support imposition of the death penalty, the sentencing judge found:
Marvin Edwin Johnson was not under the influence of extreme mental or emotional disturbance on June 7, 1978, when he committed the murder and robbery ... [t]here was no evidence that alcohol or drugs were being used by Marvin Edwin Johnson at the time the murder was committed.
Record at 1722. In rejecting the extreme duress mitigating circumstance, the sentencing court said: “The evidence submitted by the defendant’s psychologist during the penalty phase of the trial clearly established that the defendant was not acting under duress_” Record at 1723. The sentencing judge also found that the “evidence clearly established that Marvin Edwin Johnson fully appreciated the criminality of his conduct and was capable of conforming his conduct to the requirements of law.” Record at 1723. Finally in imposing the death penalty, the sentencing court held:
[A]fter weighing the aggravating and mitigating circumstances in this case, sufficient aggravating circumstances exist, as enumerated in subsection (5) of the statute and set forth in these findings of fact, for the imposition of the death penalty; and that there are no mitigating circumstances, as enumerated in subsection (6) and set forth in these findings of fact, to weigh against the aggravating circumstances....
Record at 1723 (emphasis added).
The question before this court is whether the fundamental miscarriage of justice concept permits consideration of the instant defaulted claim of ineffective assistance of sentencing counsel. Under the standard I propose, the first prong of the inquiry is whether the alleged constitutional error has resulted in a factually inaccurate sentencing profile. It is clear from the fore*1204going discussion that the proffered evidence would establish that the sentencing judge based his decision on a factually inaccurate sentencing profile.13 There was no evidence before the sentencing judge to establish the emotional disturbance mitigating circumstance, the extreme duress mitigating circumstance, or the mitigating circumstance relating to the capacity to appreciate the criminality of his conduct or conform his conduct to the law. The sentencing judge expressly found that these mitigating circumstances were not present. In fact, the sentencing judge found that no mitigating circumstances were present. However, the proffered evidence would establish the presence of three statutory mitigating circumstances, relating to extreme emotional disturbance, extreme duress, and the capacity to appreciate the criminality of the conduct or conform conduct to the law.
The second prong of the proposed standard is whether the factual inaccuracies in the sentencing profile were so significant that it is more likely than not that the result would have been different. The posture of the sentencing decision in this case is significant. In this case, the jury had returned a verdict recommending life imprisonment. Under Florida law, the sentencing judge is permitted to override the jury’s recommendation of life only in cases in which it is determined that the facts suggesting death are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Should a reasonable basis in fact exist which would support the jury’s recommended sentence, then a judicial decision to override that recommendation will be vacated. See, e.g., Freeman v. State, 547 So.2d 125, 129 (Fla.1989); Brown v. State, 526 So.2d 903, 907-08 (Fla.), cert. denied, 488 U.S. 944, 109 S.Ct. 371, 102 L.Ed.2d 361 (1988); Hawkins v. State, 436 So.2d 44, 47 (Fla.1983); Webb v. State, 433 So.2d 496, 499 (Fla.1983); Barfield v. State, 402 So.2d 377, 382 (Fla.1981); Jacobs v. State, 396 So.2d 713, 717 (Fla.1981); Brown v. State, 367 So.2d 616, 625 (Fla.1979); Provence v. State, 337 So.2d 783, 787 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). See generally Mann v. Dugger, 844 F.2d 1446, 1451 (11th Cir.1988) (collecting additional cases), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989).
Thus the question before the court is whether the sentencing judge would have overridden the jury’s recommendation of life if counsel had adduced the evidence now proffered establishing the three statutory mitigating circumstances, and whether the Florida Supreme Court would have vacated any such override.14 Relevant to this *1205inquiry is the fact that the Florida Supreme Court “frequently has reversed jury overrides where the jury could have found alcohol or drug abuse as a mitigating circumstance.” Fead v. State, 512 So.2d 176, 178 (Fla.1987). See Holswortk v. State, 522 So.2d 348 (Fla.1988) (override improper in light of mitigating evidence that capacity to appreciate the criminality of his conduct or conform his conduct to the law was impaired as a result of drugs and alcohol); Masterson v. State, 516 So.2d 256 (Fla. 1987) (override improper in light of mitigating evidence of alcohol and drug problems dating back to injuries in Vietnam and evidence that defendants consumed substantial amounts of drugs and alcohol on the day of the murder); Cannady v. State, 427 So.2d 723 (Fla.1983) (jury had reasonable basis for recommending life sentence in light of testimony concerning the psychological effects caused by defendant’s history of indiscriminate drug use); see also Burch v. State, 522 So.2d 810 (Fla.1988); Amazon v. State, 487 So.2d 8 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986); Huddleston v. State, 475 So.2d 204 (Fla.1985); Norris v. State, 429 So.2d 688 (Fla.1983). The proffered mitigating evidence in this case is very similar to that which precluded the override in Holswortk, supra, and Masterson, supra. It is more substantial than the mitigating evidence of intoxication or drug abuse which was instrumental in precluding the override in the other cases cited. In addition, the proffered evidence in this case indicates that Johnson’s addiction had a more benign origin — i.e., the motorcycle accident — thus providing additional mitigating impact. See Masterson, supra (noting that the defendant had been introduced to drugs in Vietnam).
Also relevant to this inquiry is the fact that the override issue was an extremely close question even in the absence of the new mitigating evidence now proffered. Five different justices of the Florida Supreme Court — including four who are currently sitting on that court — have at various times questioned the appropriateness of the original override in this case. On direct appeal, three justices dissented as to imposition of the death penalty on the ground that the override of the jury’s recommendation of life was improper. Johnson v. State, 393 So.2d 1069, 1075-76 (Fla. 1980) (Sundberg, C.J., Overton and McDonald, JJ., dissenting from the sentence in various opinions). Two other members of the Supreme Court of Florida, Justices Barkett and Kogan, agreed with the majority in Johnson v. Dugger, 523 So.2d 161 (Fla.1988), that the “law of the case” precluded further consideration of the jury override issue, but expressed their disagreement with the prior determination on direct appeal which upheld the jury override. 523 So.2d at 163 (Barkett, J., specially concurring) (“I agree that we are bound by the law of the case on the jury override issue. However, I believe there was a reasonable basis for the jury’s recommendation of life and thus that the court originally erred in sustaining the jury override”). Thus, a majority of the present Justices of the Supreme Court of Florida have expressed the view, even without the benefit of the newly proffered evidence, that the jury override was improper.
In light of the strict Tedder standard governing jury overrides, in light of the fact that the override issue was a close question even in the absence of the proffered mitigating circumstances, in light of the substantial force of the proffered mitigating evidence, and in light of the indication that the sentencing judge overrode the jury verdict because he believed that there were “no mitigating circumstances ... to weigh against the aggravating circumstances,” I conclude that it is more likely than not that the sentencing judge would not have overridden the jury verdict had counsel adduced before him the evidence now proffered. Indeed, the totality of the circumstances, including the proffered statutory mitigating circumstances, persuade me that there is an even higher degree of certainty in this regard. Moreover, the Florida case law cited above demonstrates *1206that the Florida Supreme Court would have vacated any override under such circumstances, thus increasing the degree of certainty that the result in this case would have been different but for the failure of sentencing counsel to present the mitigating evidence.
For the foregoing reasons, I respectfully dissent. The majority’s analysis and conclusion will result in a fundamental miscarriage of justice. Because the test for fundamental miscarriage of justice is the same, whether the context is excuse for a state procedural default or for abuse of the writ, McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), both should be excused in this case and the case should be remanded to the district court to afford Johnson the opportunity at an evi-dentiary hearing to prove the facts he now proffers.
. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
. Friendly, Is Innocence Irrelevant, Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 146-48 (1970).
. A panel of this court recently summed up the foregoing Supreme Court precedent as follows:
While the Supreme Court has not provided extensive guidelines to guide the application of the actual innocence exception, a few things are clear. The Court has held that the actual innocence exception applies to those who were wrongly sentenced to death. See Smith v. Murray, supra. The exception should be used only in extraordinary cases. See Murray v. Carrier, supra. And in addition the exception should be used only when three factors are present: first, the error precluded the development of true facts or resulted in the admission of false facts, see Smith v. Murray, supra; second, the error casts significant doubts upon the accuracy of the conviction or sentence, see Murray v. Carrier, supra; and third, the error is specifically tied to the individual case and does not merely raise the possibility that the sentence was inaccurate. See Dugger v. Adams, supra.
Aldridge v. Dugger, 925 F.2d 1320, 1328 (11th Cir.1991).
. Furthermore, the majority's analysis is likely to produce anomalous results that could not have been intended by the Supreme Court. For example, under the majority’s eligibility theory, a criminal defendant made death-eligible by a conviction for felony-murder during the guilt phase of trial, see Fla.Stat.Ann. § 921.141(5)(d), would be forever unable to obtain relief from a procedural default regardless of the extent, nature, or gravity of an error at the sentencing phase. The majority’s test would force this result even if every prosecution witness at the sentencing phase lied on the stand or every statutory mitigating factor listed in Fla.Stat.Ann. § 921.141(6) was supported by actual fact but had not been presented by incompetent counsel. Indeed, even a circumstance as egregious as a *1199jury which had been bribed could not circumvent the unimpeachable statutory aggravating factor that the murder was committed in the course of a felony listed in § 921.141(5)(d). Nevertheless, such results would be dictated by the majority’s eligibility test.
. One district court opinion found the standard satisfied in a case not involving the death penalty. See Pilchak v. Camper, 741 F.Supp. 782, 796-97 (W.D.Mo.1990). See also Jones v. Arkansas, 929 F.2d 375, 380-81 (8th Cir.1991) (relief granted; non-capital case). In addition, the Eighth Circuit suggested that the standard was satisfied in two cases, neither of which involved a sentencing determination. See Henderson v. Sargent, 926 F.2d 706 (8th Cir.1991); Bliss v. Lockhart, 891 F.2d 1335, 1342 (8th Cir.1989). See also Bode v. Lockhart, 675 F.Supp. 491 (E.D.Ark. 1987). In United States ex rel. Williams v. Lane, 645 F.Supp. 740, 748 (N.D.Ill.1986), a non-capital case, the court found that a fundamental miscarriage of justice had resulted from the prosecutor’s improper commentary on the petitioner’s failure to testify. However, the Seventh Circuit reversed that determination, finding that the “prosecutor’s allegedly improper remarks 'neither precluded the development of true facts nor resulted in the admission of false ones’’’ and that such remarks did not sufficiently pervert the jury's deliberations. Williams v. Lane, 826 F.2d 654, 664 (7th Cir.1987) (quoting Smith v. Murray, 106 S.Ct. at 2668).
. The several applicable Supreme Court cases have referred to the standard in terms of whether the petitioner is "probably” actually innocent of the death sentence. Dugger v. Adams, 489 U.S. at 417 n. 6, 109 S.Ct. at 1217-18 n. 6 ("probably is 'actually innocent’ of the sentence”); Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at 2667 ("probably resulted in the conviction of one who is actually innocent,” quoting from Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2469); Kuhlmann v. Wilson, 477 U.S. at 454 n. 17, 106 S.Ct. at 2627 n. 17 ("fair probability that ... the trier of the facts would have entertained a reasonable doubt of his guilt,” quoting from Judge Friendly’s article). I recognize that the term “probably” could have two meanings: the lower "reasonable probability” standard or the higher "more likely than not” standard. I propose adoption of the higher standard in order to ensure that the miscarriage of justice concept be reserved for the extraordinary case. Moreover, the higher standard also creates another sharp difference between this standard and that governing the prejudice prong of the “cause and prejudice” standard, which is identical to the prejudice necessary to show ineffective assistance of counsel.
. The opinion for the court misunderstands the standard I propose; the majority opinion mistakenly characterizes my proposed standard as being the same as the standard governing the prejudice prong (i.e., of the "cause and prejudice” analysis and of the ineffective assistance of counsel analysis). My proposed standard differs from the prejudice prong in two important respects. First, the actual innocence exception excludes the “all too ordinary cases” where the petitioner’s claim is based on the admission of illegal evidence. Unlike the prejudice prong, my actual innocence standard requires actual factual inaccuracy. Second, and significantly, my proposed standard employs the higher “more likely than not" test rather than the lower "reasonable probability” test which is utilized in the prejudice prong analysis. As the Supreme Court said in Strickland v. Washington, this higher test "reflects the profound importance of finality in criminal proceedings.” Moreover, as indicated in the text above, the experience in the cases to date demonstrates that the standard I propose will properly implement the Supreme Court mandate that the actual innocence exception be reserved for the extraordinary case.
. Petition at 124; Appendix 1 (Affidavit of Dr. Ronald Yarbrough).
. Id.
. Petition at 130, 135-36; Appendix 2 (Affidavit of Dr. Robert A. Fox, Jr.); Appendix 3 (Affidavit of Dr. Peter Macaluso).
. Id.; Petition at 128, 130, 134, 136; Appendix 2, Appendix 3.
. Petition at 127; Appendix 2 (Affidavit of Dr. Robert A. Fox); Petition at 133; Appendix 3 (Affidavit of Dr. Peter Macaluso); Appendix 8(e) (Affidavit of Sherrie Inez Koehler); Appendix 8(d) (Affidavit of Gwendolyn Gayle Millicin); *1203Appendix 8(c) (Affidavit of Jerry Mitchell Lawrence); Appendix 8(b) (Affidavit of Terry Wayne Gayle).
. There has been no evidentiary hearing on this claim either in state court or in federal court. A federal habeas petitioner is entitled to an evidentiary hearing only if the proffered facts would, if proved, entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). No serious argument could be made in this case that the record conclusively demonstrates that the proffered facts are untrue. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
The opinion for the court suggests that the fact finder might not have accepted Dr. Yar-brough’s testimony that there were three statutory mitigating circumstances. However, the majority ignores the standard set out in Townsend and Blackledge governing the circumstances which require an evidentiary hearing. We cannot know whether the fact finder would have accepted Dr. Yarbrough’s testimony without an evidentiary hearing.
The appropriate procedure in a case like this, where there has been no evidentiary hearing, is to assume the truth of the proffered facts, and determine whether the habeas petitioner can satisfy the high standard necessary to obtain relief. Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986). If the petitioner surmounts that hurdle, then the case is remanded to the district court where petitioner will have an opportunity to prove the proffered facts.
. The Florida Supreme Court has held that the Tedder standard applies even in cases where evidence is presented to the sentencing judge which was not presented to the jury. Cochran v. State, 547 So.2d 928, 931-32 (Fla.1989). The Cochran court stated that under Florida law, the fact that evidence not heard by the jury is presented to the sentencing judge:
does not alter this Court’s responsibility to review the sentence under the Tedder standard. When the sentencing judge is presented with evidence not considered by the jury, the jury’s recommendation still retains great weight.
See also Richardson v. State, 437 So.2d 1091, 1095 (Fla.1983) (judge should have applied Ted-*1205der standard even though the sentencing jury had not heard all of the facts and circumstances because a different jury had been used during the guilt phase).