concurring in part and concurring in the judgment:
I concur in the result the majority opinion reaches, and I join in its reasoning, except for parts II and V. I disagree with the majority’s suggestion in part II.A. that the Due Process Clause does not provide an indigent criminal defendant with the right to a court-appointed psychiatrist (or clinical psychologist) who does not commit malpractice when examining the defendant. I also have an uneasy feeling that part H.B., which holds that counsel was not ineffective for failing to second-guess the conclusions of the defense psychologist, might be misinterpreted to mean that counsel is not required to seek a second opinion when a court-appointed psychologist conducts a wholly inadequate mental examination. Further, although I agree with the majority’s conclusion in part V that the petitioner in this case had no due process right to inform the sentencing jury when he would become eligible for parole, I cannot agree with the majority’s characterization of the precedents governing this issue. I therefore write separately to express my views on the right to a psychiatrist, to emphasize that a defense lawyer retains at least some responsibility for ensuring that the psychiatrist does his job, to offer my interpretation of the cases dealing with the parole eligibility issue, and to explain why I would affirm the district court’s denial of the petitioner’s habeas claims.
I.
I have no quarrel with the majority’s observation that “[t]he Constitution does not entitle a criminal defendant to the effective assistance of a [court-appointed] expert [psychiatric] witness,” ante at 401. That is a correct statement of the law in this circuit. See Waye v. Murray, 884 F.2d 765, 766-67 (4th Cir.1989); see also Pruett v. Thompson, 996 F.2d 1560, 1573 n. 12 (4th Cir.1993); Poyner v. Murray, 964 F.2d 1404, 1418-19 (4th Cir.1992). However, the petitioner, Kenneth Wilson, does not say that he was entitled to “effective assistance” from his court-appointed clinical psychologist, Dr. Don Kilhan. Wilson’s argument is more circumscribed. He does not claim that he can challenge every aspect of Dr. Killian’s performance as “ineffective.” Rather, Wilson maintains only that Dr. Killian was required to provide him an “appropriate” examination. This rule, Wilson argues, is compelled by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which held that an indigent defendant has a due process right to psychiatric assistance. See id. at 83, 105 S.Ct. 1087 (“[T]he State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination-”). According to Wilson, Ake required Dr. Kilhan to provide him with a sanity examination that met the minimum standard of care for clinical psychologists.1 *409Wilson also claims that his evidence shows that Dr. Killian’s examination failed to meet that standard. I agree with both arguments.2 However, I would deny Wilson’s claim for other reasons.
The majority expresses some doubt about (but does not squarely reject) Wilson’s claim that he was entitled to an appropriate examination, see ante at 401. The majority’s doubt is based on the point that Ake does not “guarantee[ ] a particular substantive result,” ante at 401. Of course, Ake does not require that a state provide an indigent defendant with a psychiatrist who will come to a favorable conclusion, cf. Poyner, 964 F.2d at 1419, or look for evidence of specific psychiatric afflictions, see Pruett, 996 F.2d at 1573, or make the “correct” diagnosis, see, e.g., Washington, 952 F.2d at 1482. But Wilson does not claim that Dr. Killian should have provided more favorable results, or looked for specific mental disorders, or rendered the “correct” conclusion regarding his (Wilson’s) sanity. Wilson argues only that Ake guaranteed him an examination that was not so flawed that it constituted malpractice. I agree with Wilson’s reading of Ake. Due process required Dr. Killian to give Wilson a thorough examination that met the minimum standard of care set by the clinical psychology profession.3
The majority appears to disagree. Ake’s focus, the majority reminds us, was on “ensuring a defendant access to a psychiatrist or psychologist.” Ante at 401. This statement, while true, gets us nowhere. Of course, Ake did not explicitly decide whether an indigent defendant, is entitled to a court-appointed psychiatrist whose psychiatric examination does not constitute malpractice. The case did not present that question because the defendant there received no sanity examination whatsoever. See Ake, 470 U.S. at 72-74, 105 S.Ct. 1087. However, Ake’s reasoning suggests a broader rule, that a court-appointed psychiatrist cannot commit malpractice when examining a defendant. As Ake explains, the right to a court-appointed psychiatrist is a logical extension of the right-to-counsel cases, which recognize that “meaningful access” to justice under the Due Process Clause means providing all of the “tools” necessary for an adequate defense. See id. at 76-77, 105 S.Ct. 1087 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). Ake’s reference to these cases, which recognize that the right to counsel is really the right to effective assistance of counsel, was no accident: the Ake Court meant for the right to a psychiatrist to operate somewhat like the right to counsel.4 *410By explaining that a psychiatrist was a defense “tool,” the Ake court meant for that tool to be fully functional. Cf Harris v. Vasquez, 949 F.2d 1497, 1530 (9th Cir.1990) (as amended Aug. 21, 1991) (Noonan, J., dissenting) (“The emphasis on tools is an emphasis on function. A non-functioning tool is useless; so is a non-functioning psychiatrist.”) Thus, although Ake ’s“ precise holding” gives an indigent defendant access to a psychiatrist, see ante at 401, Ake’s reasoning is not so confined. And none of the majority’s citations to Ake suggest otherwise.5
We do not have to scrutinize Ake’s reasoning closely to understand why the due process right to a court-appointed psychiatrist necessarily encompasses the right to an appropriate examination by that psychiatrist. Simple logic dictates that without the latter right the former is meaningless. An example is helpful here. In the majority’s view, a state apparently would fulfill its duty under Ake by appointing a competent psychiatrist (with all the right credentials) to examine a defendant, even if the psychiatrist performs a wholly inadequate examination. Let us say, for example, that a psychiatrist saw the defendant for only five minutes, in which time the doctor’s only “diagnostic tests” were to ask the defendant his name and ask him to count to 100.6 This “examination,” where the psychiatrist plainly did not do his job, cannot be all that Ake guarantees. Such an examination is essentially the same as no examination at all. It is a denial of access to a psychiatrist, just as in Ake. See Harris, 949 F.2d at 1531 (Noonan, J., dissenting) (“Ineffective psychiatric aid is no aid at all”). Unless Ake’s guarantee of the assistance of psychiatrist is an empty one, due process must require that a court-appointed psychiatrist provide an indigent defendant with an adequate mental examination. Cf. Strickland., 466 U.S. at 685-86, 104 S.Ct. 2052 (explaining why the right to counsel is the right to effective assistance of counsel); Evitts, 469 U.S. at 394-96, 105 S.Ct. 830 (same). Therefore, I would hold that a defendant has the right to an “appropriate” mental examination, just as Ake said. See Starr v. Lockhart, 23 F.3d 1280, 1289-90 (8th Cir.1994) (“As Ake explains, due process requires access to an expert who will conduct, not just any, but an appropriate examination.”); see, e.g., Ford v. Gaither, 953 F.2d 1296, 1298-99 (11th Cir.1992) (holding that the state-appointed psychiatrist’s examination was inadequate under Ake when the psychiatrist simply interviewed the defendant about the events on the day of the crime); cf., e.g., Cowley v. Stricklin, 929 F.2d 640, 644-45 (11th Cir.1991) (holding that the aid provided by the defense psychiatrist failed to satisfy Ake’s mandate when the psychiatrist did not examine the defendant).7
*411The majority does not squarely decide this issue, though. Instead, it says that “[e]ven if Ake’s use of the term ‘appropriate’ suggests that an examination must satisfy some minimal level of professional competence, Dr. Kil-lian has clearly satisfied it here.” Ante at 402; see also ante at 401 (explaining why the examination supposedly met the standard of care). Therefore, the Ake question appears to be left for another day.
I cannot agree with the majority that Dr. Killian performed an “appropriate” examination. This is fact-finding, and the record does not support it. Dr. Killian’s ninety-minute interview of Wilson (in which Dr. Killian did not perform a single diagnostic test or consult any of Wilson’s medical records) and Dr. Killian’s half-page “report” (which summarily concluded that Wilson was sane at the time of his offense) did not “clearly” meet the standard of care. In fact, my reading of a report by Dr. Brad Fisher, a clinical psychologist who examined Wilson in 1997, suggests that Dr. Killian’s May 1993 examination of Wilson fell short of the standard. Dr. Fisher’s examination of Wilson is a model of professional care, in sharp contrast to Dr. Killian’s examination. Dr. Fisher interviewed Wilson, performed a full battery of tests on him, studied (among other things) Wilson’s medical records, and obtained a full social and medical history (for which he consulted sources independent of Wilson). Further, Dr. Fisher reviewed Dr. Killian’s notes and report from the May 1993 examination. According to Dr. Fisher, “Dr. Killian drew his conclusions without conducting a complete or comprehensive investigation” of Wilson’s mental health history. Further, Dr. Fisher wrote, Dr. Killian should have studied the “considerable available data” concerning Wilson’s mental condition, including Wilson’s medical records and history of substance abuse, “rather than basing opinions strictly on his interview.” “At a minimum,” Dr. Fisher said, Dr. Killian should have considered information regarding “the level of drugs in Mr. Wilson’s system” at the time of the offense. Although the Constitution did not give Wilson the right to an ideal examination like the one provided by Dr. Fisher, it required an examination and diagnosis that reflected an accepted minimum of skill and care. Dr. Fisher’s report suggests that Dr. Killian’s abbreviated interview of Wilson did not meet the relevant standard of care because Dr. Killian failed follow the bare minimum of procedures necessary for an adequate sanity examination. This was enough to create an issue of fact about whether Dr. Killian’s May 1993 examination of Wilson constituted malpractice.8
Despite my disagreement with the majority on the Ake issue, I agree that Wilson’s petition should be denied. I would hold that Wilson’s Ake claim was procedurally defaulted. Wilson argues on appeal that he is not barred from raising the Ake claim because his default was excused. Even if this excuse was valid (it is not; see part II.B.), I would not allow Wilson to raise it to negate the procedural default of his Ake claim. Wilson waived this excuse by failing to mention it in district court. There, Wilson did not respond to the Commonwealth’s argument that he procedurally defaulted his Ake claim by asserting that any default was excused. Rather, Wilson argued that he had presented his Ake argument in state court.
*412Of course, we have the discretion to address issues not raised below to prevent a miscarriage of justice. However, I am convinced that no injustice would result from the refusal to address Wilson’s Ake claim. First, as the majority ably explains, Wilson failed to make out a claim of actual innocence. See ante at 404-05. Thus, the failure to address the claim would not result in the execution of an innocent man. Second, as the majority correctly concludes, the violation of Wilson’s Ake right was harmless beyond a reasonable doubt. Even if Dr. Killian had provided Wilson with an appropriate mental examination, there is no reason to believe that the doctor would have made a different assessment of Wilson’s sanity. See ante at 403-04. Third, Wilson has not convinced me that he would have avoided a death sentence if Dr. Killian’s first examination had been appropriate. Dr. Killian was charged with assessing Wilson’s sanity in that examination, not with finding mitigating evidence. An appropriate examination might have unearthed some mitigating evidence, but Wilson has not said what that might be or how it might have affected his sentence. Therefore, I see no injustice in applying the normal waiver rule to bar Wilson from claiming, for the first time on appeal, that his procedural default was excused.
II.
As an alternative to his Ake claim, Wilson argues that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to (1) explore adequately an insanity defense and (2) file a timely request for a second mental examination (to develop mitigation evidence in anticipation of sentencing). The majority rejects Wilson’s first claim, reasoning that “[t]o be reasonably effective, counsel was not required to second-guess” Dr. Killian’s conclusion from the May 1993 examination that Wilson was not insane at the time of the offense. Ante at 403. The majority rejects Wilson’s second claim on the ground that counsel’s decision not to seek a second examination sooner was not unreasonable because “Dr. Killian already had concluded that Wilson was sane at the time of the offense.” Ante at 408 n. 2. I disagree with both of the majority’s conclusions. For the first claim, our main focus ought to be on the psychologist’s examination, not on counsel’s appraisal of it. Further, defense counsel was ineffective in preparing Dr. Killian for the first examination and, possibly, for failing to obtain a second opinion. For Wilson’s second claim, defense counsel was ineffective for not filing a timely request for a second examination. Still, both claims were procedurally defaulted.
A.
While I would recognize a right to an appropriate mental examination under Ake, the majority has studiously avoided doing that here. The majority seems to say that any Ake right can only be enforced through a claim of ineffective assistance of counsel. The majority goes on to hold that the failure of Wilson’s trial counsel to second-guess Dr. Killian’s sanity evaluation was not constitutionally ineffective. Ante at 403. I read the majority’s holding .to be based solely on the facts of this case: since Dr. Killian’s examination was appropriate, see ante at 402, there was no reason for defense counsel to second-guess the doctor’s methods or his conclusion that Wilson was sane at the time of the offense.9 Therefore, I do not read the majority opinion as creating a general rule that defense counsel is never required to second-guess the court-appointed psychiatrist’s mental evaluation of the defendant. Such a holding would, if there was no independent Ake right to an appropriate examination, effectively insulate a psychiatrist’s poor performance from review and leave an indigent defendant with no recourse when he received an inappropriate mental examination. And that is not the law. Even if I am incorrect to assert (in part I) that Ake grants indigent defendants an independent right to an appropriate mental examination, a defendant must be able to vindicate his Ake right to an *413appropriate examination through a claim of ineffective assistance of counsel.
It is well established that substandard performance by a court-funded psychiatrist (or clinical psychologist) can be the basis of a claim of ineffective assistance of counsel if, by failing to ensure that the psychiatrist performed adequately, counsel’s performance fell outside of the broad range of conduct that constitutes reasonably effective assistance. See, e.g., United States v. Kauffman, 109 F.3d 186, 190-91 (3rd Cir.1997); Kenley v. Armontrout, 937 F.2d 1298, 1303-08 (8th Cir.1991); Elledge v. Dugger, 823 F,2d 1439, 1445-47 (11th Cir.1987), modified in part, 833 F.2d 250 (11th Cir.1987) (withdrawing unrelated portion of the opinion); see also Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.1992); Washington v. Murray, 952 F.2d at 1472, 1481 (4th Cir.1991). A lawyer is expected to perform competently in all aspects of his representation of a criminal defendant, including (if the case requires) the assertion of an insanity defense at trial or the presentation of mitigation evidence at sentencing. An Ake mandated psychiatrist is an important tool for effective advocacy in both situations, so defense counsel is expected to use this tool with appropriate skill. To do this defense counsel must, to some extent, ensure that a court-funded psychiatrist does his job. This requires that a defense lawyer learn something about how a psychiatrist can assist him in defending a criminal defendant. Thus, the burden of ensuring that a psychiatrist performs adequately for the defense team (as an advisor, consultant, witness, etc.) falls on counsel, just as the burden of ensuring that any other witness or member of the defense team performs adequately falls on counsel. Counsel is the expert on conducting a criminal defense, after all.
Lawyer oversight is unlikely to result in full effectuation of Ake’s mandate, however. Ake held that due process requires an indigent defendant be provided with “access to a competent psychiatrist who will [1] conduct an appropriate examination and [2] assist in evaluation, preparation and presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). But a lawyer usually can be expected to guarantee only the second half of this mandate. As a trained advocate a criminal defense lawyer is expected to know how to defend an accused in a competent manner, by (for example) planning an insanity defense, investigating the defendant’s background for mitigating evidence, and adducing psychiatric testimony. So, a lawyer can be expected to know when an expert’s conclusions would be favorable to the defense, to understand what strategies of mitigation might impress a jury, and to ensure that the psychiatrist’s testimony is presented in a compelling fashion. Still, even the most diligent and informed defense lawyer will often be hard pressed to second-guess the psychiatrist’s methods and diagnosis in an examination of the defendant’s sanity. This is because the mental examination is a part of the psychiatrist’s job that is totally outside the lawyer’s professional competence. A psychiatrist is uniquely qualified to perform a psychiatric examination and render a diagnosis of the defendant’s mental condition. As a result, while defense counsel can be expected to have the know-how to ensure that the court-appointed psychiatrist “assist[s] in evaluation, preparation, and presentation of the defense,” counsel rarely will be qualified to determine whether the psychiatrist has “conduct[ed] an appropriate examination.” Unless the psychiatrist’s report or conclusions are obviously incoherent, inaccurate, incomplete, or the like, a lawyer cannot and should not be expected to second-guess the psychiatrist’s methods and diagnosis. Cf, e.g., Washington, 952 F.2d at 1481-82 (explaining that, on the facts of that case, defense counsel could not have been reasonably expected to second-guess the psychiatrist’s diagnosis).
The majority does not distinguish between the lawyer’s role and the psychiatrist’s role, however. Rather, the majority would place the full burden of spotting psychiatrist malpractice on defense counsel by putting counsel in charge of ensuring that the Ake right is protected. This is a questionable arrangement. The Ake right, derived from the Due Process Clause, is separate from and independent of the Sixth Amendment right to effective assistance of counsel. The former right was first recognized in Ake; the latter *414right has been with us much longer, since Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and has for years governed a lawyer’s use of a psychiatrist as pact of the defense team, see, e.g., United States v. Edwards, 488 F.2d 1154, 1163-64 (5th Cir.1974). Further, these two rights may apply in different circumstances. While I would recognize an independent Ake right where (as here) the defendant’s mental examination is performed by a court-appointed psychiatrist, I am less certain (and I need not say) whether there is an Ake right to an appropriate examination separate from the right to effective assistance of counsel when counsel uses a hand-picked éxpert, paid for by the defense. Moreover, as I have explained, these two rights ereate two different standards of conduct: the right to counsel deals with lawyer malpractice while the right to a psychiatrist deals with psychiatrist malpractice. Lawyers áre not trained as psychiatrists, and they cannot be expected to have the same working knowledge of psychiatry as an expert in the field. A lawyer cannot be expected to recognize a psychiatrist’s malpractice in all eases where another psychiatrist would. Thus, the standard for lawyer malpractice in evaluating a court-appointed psychiatrist’s examination is necessarily lower than the standard for- psychiatrist (or clinical psychologist) malpractice in conducting the examination. Therefore, it would be a dilution of the Ake right to say that an indigent defendant must receive a mental examination that does not constitute psychiatrist malpractice — but only if the examination was so inadequate that the failure to recognize the psychiatrist’s malpractice constituted lawyer malpractice.
The majority apparently recognizes that, due to lack of medical and technical expertise, defense counsel often will have difficulty finding fault in a court-appointed psychiatrist’s examination or in challenging its conclusions. Cf. ante at 404 (citing Washington, 952 F.2d at 1482). However, the majority seems content to leave the entire burden of protecting the Ake right on counsel. If protection of the Ake right does fall entirely on defense counsel, then counsel will be expected to do better than I have just described in evaluating the court-appointed psychiatrist’s mental examination. In order to be effective, counsel will have to do some homework and know much more than any layman about the symptoms and effect of various mental disorders. Counsel also will have to study the psychiatrist’s report carefully (and ask follow-up questions if necessary) to make sure he understands its conclusions and the doctor’s reasons therefor (just as counsel would if he were using the report to put on an insanity defense). Further, counsel will have to request a second opinion when he has any reason to believe that the psychiatrist bungled the job. Only such heightened vigilance will allow counsel to ensure that the psychiatrist has conducted an appropriate mental examination of the defendant. In my view such heightened vigilance is necessary for counsel to discharge his duty to effectively represent his client.
I would prefer a different route, however. I would not give defense counsel the whole burden of ensuring that the psychiatrist’s examination is appropriate. I would give this task, which only a psychiatrist is properly qualified to do, to the psychiatrist. This would create a division of labor that best effectuates both parts of Ake’s mandate. The psychiatrist, the expert on mental examinations, would be responsible for providing the “appropriate examination,” Ake, 470 U.S. at 83, 105 S.Ct. 1087, while the lawyer, the expert at defending the accused, would be responsible for ensuring that the psychiatrist “assist[s] in the evaluation, preparation, and presentation of the defense,” id. This rule also squares with the rule I endorse in part I, that there is a constitutional right to an appropriate examination from the psychiatrist but no general right to effective assistance of a psychiatrist. Further, this rule best reconciles our cases, which say that counsel is responsible for ensuring that the psychiatrist assists in the defense, see Poyner, 964 F.2d at 1418, but also imply that counsel cannot normally be expected to second-guess a psychiatrist’s diagnosis, cf. e.g., Washington, 952 F.2d at 1481-82. (Of course, in those infrequent cases where the psychiatrist’s examination is so flawed that any competent defense lawyer should notice, *415both the lawyer and the psychiatrist would be responsible.)
Since I would place the brunt of the burden of ensuring that a court-appointed psychiatrist’s examination was appropriate on the psychiatrist (or clinical psychologist), not on counsel, I do not agree that the central question before us here is whether counsel was reasonable to rely on Dr. Killian’s report, see ante at 403. The key question we should ask is whether Dr. Killian’s first examination was appropriate. It was not, assuming that the facts alleged in Wilson’s petition are true. See part I, above.
Our inquiry does not end there, however. As I have said, in some cases defense counsel’s failure to recognize a court-appointed psychiatrist’s obvious malpractice and request a second opinion can constitute ineffective assistance of counsel.10 Further, counsel can be ineffective for causing the psychiatrist to perform an appropriate examination, by (for example) failing to provide the psychiatrist with access to all the materials necessary for an adequate examination. Here, Wilson’s petition suggests that trial counsel was ineffective for both reasons. First, despite a court order to provide Dr. Killian with all “available psychiatric, psychological, medical or social records,” counsel did not provide Dr. Killian with access to any relevant records. Counsel did not provide Dr. Killian with hospital records which showed that, at the time of Wilson’s arrest, he was suffering from rhabdomyolysis, a condition produced by severe drug intoxication. Nor did counsel provide Dr. Killian with any documentation of Wilson’s history of substance abuse. These records were obviously essential to a proper determination of Wilson’s mental condition at the time of the offense, and counsel was ineffective for failing to obtain them for Dr. Killian. Second, I am not sure that it was reasonable for defense counsel to decide against an insanity defense (or at least, to decide against consulting a second clinical psychologist) based on Dr. Killian’s report. Here, even a layman might have questioned the conclusions reached by Dr. Killian’s short examination and conclusory report.11
However, even if trial counsel was ineffective with regard to Wilson’s May 1993 examination, Wilson’s claim does not succeed. First, Wilson did not argue in state court that trial counsel should have obtained a second mental examination, and this procedural default was not excused. See part II.B. Second, even if trial counsel was ineffective for failing to provide Dr. Killian with Wilson’s medical records, Wilson suffered no prejudice from that mistake. Wilson has not proved that Dr. Killian would have testified that he was insane if the doctor had performed an appropriate first examination. See ante at 403-04.
B.
The majority also rejects Wilson’s claim that defense counsel’s failure to obtain a second mental examination constituted ineffective assistance, reasoning that no second examination was needed because Dr. Killian concluded that Wilson was sane. See ante at 403 n. 2. I disagree. Even if counsel thought that Wilson was sane, counsel ought to have requested mitigation evidence from a psychologist. Dr. Killian’s May 1993 examination of Wilson dealt with just one potential mitigating factor, Wilson’s mental state. However, a second psychiatric evaluation could have unearthed other kinds of mitigating information about Wilson (such as his childhood exposure to physical abuse) that had little to do with his sanity. (Here, defense counsel admitted that a second examination by Dr. Killian might uncover mitigating factors that would be helpful at Wilson’s sentencing.) Thus, even if it was reasonable for counsel to decide, in reliance on Dr. Killi-an’s report, not to obtain a further evaluation of Wilson’s mental state, see, e.g., Gilbert v. Moore, 134 F.3d 642, 654-55 (4th Cir.1998), *416cert. denied, — U.S.-, 119 S.Ct. 103, — L.Ed.2d - (1998), that was no reason for counsel to forego a second psychiatric evaluation.
I would hold that counsel erred by waiting to move for a second examination until two days after notifying the trial court that the defense planned to use mental health evidence at trial. Counsel’s delay was error because under Virginia law the report from any second examination was discoverable by the prosecution as soon as the defense notified the court of its intent to use mental health evidence. See Va.Code Ann. § 19.2-264.3:1(D) (Michie 1995). The result of counsel’s failure to request and obtain a second examination before notifying the court that the defense planned to use mental health evidence was that the defense team lost the opportunity to keep the results of Wilson’s proposed second examination confidential. Once counsel realized this mistake and told Wilson that they would have to choose between a non-confidential examination and no examination at all, Wilson chose the latter option. Therefore, counsel’s failure to obtain a confidential examination forced Wilson to forego a second examination and miss an opportunity to obtain psychiatric mitigation evidence at sentencing. This was ineffective lawyering.
The majority concludes that counsel’s failure to obtain a confidential second examination was harmless, however, because “counsel would have been required to disclose the results of such an examination” at trial anyway. Ante at 403 n. 2. Again, I disagree. Wilson does not claim that he was harmed directly by the prospect of the report’s disclosure. The harm from counsel’s mistake, Wilson argues, was that it placed him between a rock and a hard place. Not knowing whether the examination would unearth helpful or harmful information for the defense, Wilson had to decide whether to forego the examination or take the chance that detrimental information would come out in the examination and fall into the Commonwealth’s hands. And, although Wilson’s decision to forego the second examination was voluntary, Wilson never would have had to make this tough decision if counsel had not put him in the unenviable situation of choosing a confidential examination or no examination at all. As a result of counsel’s mistake, Wilson never had the opportunity to obtain a confidential psychological examination and decide whether to use that evidence on its own merit (based on an informed assessment of whether the benefit of the report outweighed any harm of its disclosure). This hindered Wilson’s ability to develop mitigating evidence for sentencing.
Despite the merit of Wilson’s ineffective assistance of counsel claim, I would hold that it is procedurally barred. In his state habeas petition, Wilson raised a substantive claim that he was denied a second examination, but he made no allegation that his problem arose due to bad lawyering. And, Wilson fails to convince me that this default is excused because the “state corrective processes” were either absent or inadequate to vindicate his right, see 28 U.S.C. § 2254(b)(1)(B) (1994). First, Wilson is simply wrong to say that he could not raise his claim in state habeas proceedings. In Virginia it is possible to raise an effective assistance of counsel claim in a habeas petition, even though the claim was not raised at trial or on appeal. Cf. Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698, 699-700 (1983). Second, Wilson was not prejudiced when the state court did not notify habeas counsel of his appointment until two months prior to the deadline for filing the state petition. This mistake (which cut counsel’s time to file in half) is troubling, but it did not prejudice Wilson’s ability to file a state habeas petition. Indeed, Wilson’s ha-beas counsel eventually filed a substantial petition. And, even if counsel was ineffective for filing to include all the points in the petition that Wilson wanted to raise, this does not excuse Wilson’s procedural default. See Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir.1997) (en banc), cert. denied, ■— U.S. -, 118 S.Ct. 907, 139 L.Ed.2d 922 (1998).
III.
Finally, I would also reject Wilson’s claim that he should have been allowed to inform the sentencing jury he was ineligible for parole for 25 years. As the majority explains, Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), held that when the only alternative sentence to *417death is life in prison without the possibility of parole (and the state puts future dangerousness at issue), due process requires that the defendant be allowed to inform the sentencing jury that he is parole ineligible. See ante at 407 (citing Simmons, 512 U.S. at 178, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment)). I agree with the majority’s conclusion that Simmons does not control in Wilson’s ease because the alternative sentence to death for Wilson was life in prison with the possibility of parole after 25 years.12 As a result, the extension of Simmons to Wilson’s case would be a new rule. Cf. O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 1971, 138 L.Ed.2d 351 (1997).
However, I hesitate to join the majority’s discussion of Simmons. The majority is wrong to say that our decisions, either pre or TpostSimmons, govern the substantive question presented by Wilson.13 Were we squarely presented with the question whether to extend the Simmons rule as Wilson argues, we would not be constrained from doing so by our own precedents. Further, I disagree with the majority’s dicta discussing of the scope of Simmons. See ante at 407 (“[T]he Constitution does not entitle defendants to an instruction about when they would become eligible for parole.”). We do not address the full scope of Simmons today, just the question before us. Thus, we do not decide whether in some other case Simmons might compel a sentencing court to allow a capital defendant to inform the jury of the true effect of an alternative sentence, even if that sentence has the possibility of parole. For example, if Wilson had established that his term of 25 years of parole ineligibility extended beyond his reasonable life expectancy, so that the actual effect of the sentence would be that the only alternative to death was life without any possibility of parole, that might have brought Wilson’s case within the rule of Simmons. Wilson has not made this argument, so I have no difficulty in rejecting his Simmons claim.
. None of our cases have dealt with a claim that a court-appointed psychiatrist (or clinical psy*409chologist) committed malpractice in his examination of the defendant. Rather, we have addressed a claim that a psychiatrist should have performed better on the witness stand, see Waye, 884 F.2d at 766, 767, a claim that defense counsel could have chosen a better-qualified psychiatrist to examine the defendant, see Pmett, 996 F.2d at 1573 n. 12, 1574 n. 13, a claim that counsel should have shopped for a psychiatrist who would give a different diagnosis, see Washington v. Murray, 952 F.2d 1472, 1481 (4th Cir.1991), and a claim that counsel should have employed a psychiatrist who was more adept at developing imaginative theories of mitigation, see Poyner, 964 F.2d at 1418, 1419. Thus, none of our cases control the narrow issue raised by Wilson, whether an indigent defendant has a right to an appropriate examination that meets the standard of care set by the psychiatric profession.
.Further, even if Ake does not give an indigent defendant a right to an "appropriate examination” that is independent of the right to effective assistance of counsel, I would hold that the Constitution places a heightened responsibility on counsel to ensure that the defendant receives an appropriate examination. See part II.A., below.
. This would have included a careful analysis of Wilson’s medical records, compilation of an accurate social history (including any history of mental illness or substance abuse), and a complete mental and physical examination (employing whatever diagnostic tests were appropriate under the circumstances). See generally Comprehensive Textbook of Psychiatry/IV 543-48, 836-37 (Harold I. Kaplan & Benjamin J. Sadock eds., 4th ed.1985).
. However, I believe that the Ake right cannot and should not function exactly like the right to effective assistance of counsel. As I explain in part II.A., below, I would recognize the existence of a narrow right to an appropriate examination and require that all other challenges to the psychiatrist’s performance as a member of the defense team be brought as challenges to the ade*410quacy of counsel's representation. Due process provides defendants with a right to an appropriate examination, see Ake, 470 U.S. at 83, 105 S.Ct. 1087, but it provides no right to effective assistance of a psychiatrist generally, see Waye, 884 F.2d at 767.
. If the Ake Court had viewed the right to a psychiatrist as providing mere access to a psychiatrist, I expect that more Justices would have joined the Chief Justice's concurring opinion in that case. See Ake, 470 U.S. at 87, 105 S.Ct. 1087 (Burger, C.J., concurring in the judgment) (reading the majority opinion to address only the narrow question of whether a capital defendant may be denied "any opportunity whatsoever” to consult with a psychiatrist). However, no other Justice joined the Chief Justice's opinion.
. This hypothetical may be extreme, but I can imagine many other situations in which a psychiatrist might perform a grossly inadequate examination. The doctor could botch the exam (since no one is perfect) or he could be tired, be having a bad day, or simply be in a hurry to make some appointment outside the office.
.The criminal justice system would not be put under strain if we were to recognize a defendant's right to a psychiatrist who does his job. That psychiatrists sometimes disagree with each other about diagnoses is no reason to worry that the finality of convictions will be undermined, see ante at 401. Implementing a malpractice standard would not allow a defendant to challenge his conviction just because some other psychiatrist disagrees with the court-appointed psychiatrist’s diagnosis. Rather, the petitioner would have to prove (with the assistance of a new psychiatrist) that the court-appointed expert's examination totally failed to meet the relevant standard of care. Of course, such claims would rarely succeed. Just as with the claim of ineffective assistance of counsel, a defendant will rarely be able to prove that his psychiatrist conducted an examination that was constitutionally deficient.
*411I also am not concerned that allowing a defendant to challenge his psychiatrist’s performance will lead to "an endless battle of ... experts,” ante at 401. Since there is no right to the effective assistance of counsel on habeas review, see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), there surely would be no right under Ake to an appropriate examination on habeas review. Also, the limitations on successive habeas petitions will ensure that defendants do not try to raise this claim repeatedly with a succession of experts.
. If the majority is suggesting, ante at 402, that Dr. Killian conducted a second mental examination of Wilson, I disagree. Dr. Killian did not perform a second examination of Wilson during their brief second meeting in November 1993. In any event, whether Wilson had a second examination is irrelevant to his claim that Dr. Killi-an committed malpractice in his first examination in May 1993. After the first examination Dr. Killian concluded that Wilson was sane at the time of the offense. This examination was entirely unrelated to the second meeting between Dr. Killian and Wilson, which was scheduled by Wilson’s counsel in an attempt to develop mitigation evidence for the sentencing phase of Wilson's trial.
. Of course, I disagree with the majority’s finding that Dr. Killian’s examination was appropriate. See part I, above.
. This would, I believe, give rise to two independent constitutional violations: a violation of Ake and a violation of Gideon.
. I also cannot agree that counsel "reasonably chose not to develop a mental health defense at trial” because that defense was inconsistent with Wilson's testimony that he did not commit the crime, see ante at 403. We should not speculate that if Dr. Killian had conducted an appropriate examination, defense counsel would have decided not to put on an insanity defense.
. But cf. Brown v. Texas, - U.S. -, -, 118 S.Ct. 355, 355, 139 L.Ed.2d 276 (1997) (Stevens, J., respecting the denial of certiorari, joined by Souter, Ginsburg and Breyer, J.J.) (explaining that when the alternate sentence to death is life without the possibility of parole for 35 years, a rule prohibiting a defendant from informing the sentence jury of his parole ineligibility is in “obvious tension” with Simmons); id. at 356 n. 2 (suggesting that "the life-without-parole option considered in Simmons is different in degree, but not in kind, from the sentencing options at issue here"); Simmons, 512 U.S. at 163, 114 S.Ct. 2187 (Blackman, J., joined by Stevens, Souter and Ginsburg, J.J.) (“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.”); id. at 184-85, 114 S.Ct. 2187 (Scalia, J., dissenting, joined by Thomas, J.) ("I see no more reason why the United States Constitution should compel the admission of evidence showing that ... the defendant would be nonparolable, than that it should compel the admission of evidence showing that ..., though under current law the defendant will be parolable in 20 years, the recidivism rate for elderly prisoners released after long incarceration is negligible. All of this evidence may be thought relevant to whether the death penalty should be imposed....”).
. Peterson v. Murray, 904 F.2d 882 (4th Cir.1990), held that the Eighth Amendment was not violated when a court refused to allow the defendant to inform the sentencing jury he was ineligible for parole for 20 years. See id. at 886-87. Peterson did not decide the due process claim that Wilson makes. Turner v. Bass, 753 F.2d 342 (4th Cir.1985), rev'd on other grounds sub nom., Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), and Townes v. Murray, 68 F.3d 840, 849 (4th Cir.1995), cert. denied, 516 U.S. 1100, 116 S.Ct. 831, 133 L.Ed.2d 830 (1996), also did not address the question Wilson raises. Rather, they dealt with the issue of whether (pre and post-Simmons, respectively) due process requires a sentencing court to instruct the jury, sua sponte, that a defendant is ineligible for parole. See Turner, 753 F.2d at 353-54; Townes, 68 F.3d at 849-50. Further, although the petitioner in Arnold v. Evatt, 113 F.3d 1352 (4th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 715, 139 L.Ed.2d 655 (1998), made a claim similar to the one Wilson makes (that the jury must be informed, at the defendant's request, of "the actual effect of a life sentence or a death sentence,” id. at 1363), that case did not explicitly decide the issue Wilson asks us to decide. The Arnold court said that, on the record before it, the defendant had not showed that he was ineligible for parole. Id. Although the Arnold court did not say what the alternative sentence to death had been, we can assume that the petitioner there failed to show that he was parole ineligible at any time after his conviction. Thus, Arnold is distinguishable from this case because Wilson was parole ineligible for 25 years.