Full opinion text
ANDERSON, Circuit Judge: This appeal marks the second time that Marvin Edward Johnson, a convict on Florida’s death row, has appeared before this court challenging his capital murder conviction and death sentence. In his first appeal, we found no constitutional error in the state court proceedings leading to his death sentence and affirmed the district court’s denial of his petition for a writ of habeas corpus. Johnson v. Wainwright (“Johnson I”), 806 F.2d 1479 (11th Cir.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987). In this appeal, he raises five claims: (1) that his sentencing hearing violated the Supreme Court’s admonitions in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the trial judge, in overriding the sentencing jury’s recommendation of life imprisonment, failed to consider nonstatutory mitigating evidence; (2) that his appellate counsel was ineffective in not challenging on direct appeal the denial of his motion to suppress an allegedly unreliable and suggestive photographic identification procedure; (3) that the Florida courts, by allowing the trial judge to override the jury’s life imprisonment recommendation in this case, have applied their reviewing standard in such a manner as to result in an arbitrary and capricious imposition of the death sentence; (4) that his trial counsel rendered ineffective assistance both by not ensuring that a proper mental health examination was conducted prior to his sentencing hearing and by failing to conduct any additional investigation during the time period between the hearing before the sentencing jury and the final hearing before the trial judge; and finally (5) that his trial counsel, by wholly failing to prepare a rebuttal to the state’s ballistic and crime-scene reconstruction evidence, was ineffective. The district court, reviewing these claims without a hearing, denied Johnson’s petition for habeas relief. Although we agree with the district court’s resolution of most of the claims, we hold that a remand is necessary with respect to Johnson’s claim of ineffective assistance of counsel at sentencing. I. PROCEDURAL BACKGROUND In order to fully understand this court’s discussion of the various issues, particularly as they relate to the resolution of whether certain claims have been procedurally defaulted or constitute abuse of the writ, some detail of the procedural history of this case is necessary. On December 8, 1978, Johnson was convicted by a jury of first-degree murder and armed robbery. On December 9, the penalty phase commenced with a hearing before an advisory sentencing jury. This jury returned a recommendation of life imprisonment on the first-degree murder conviction. Approximately one month later, on January 12, 1979, a second hearing before the sentencing judge took place. At the close of this hearing, the trial judge overrode the advisory jury’s recommendation of life imprisonment and sentenced Johnson to death. Johnson appealed his conviction and death sentence to the Florida Supreme Court. In that appeal, he raised five issues. Of those five issues, one — whether the trial judge’s override of the advisory jury’s recommendation of life was inconsistent with the standards set forth in Ted-der v. State, 322 So.2d 908 (Fla.1975) — is also being raised during this appeal. On review of Johnson’s appeal, the Florida Supreme Court rejected Johnson’s claims attacking his conviction and his constitutional challenges to the Florida capital statute. Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Although the Florida Supreme Court did set aside one of the aggravating circumstances found by the sentencing judge, the court, by a vote of four justices to three, affirmed the trial judge’s decision to override the jury’s sentencing recommendation. Rather than seeking habeas relief in the state courts pursuant to Florida Rule Criminal Procedure 3.850, Johnson next petitioned the United States District Court for the Northern District of Florida for a writ of habeas corpus. During this proceeding, Johnson raised all of the issues raised on direct appeal and several new issues as well. Among the various issues he presented was a claim that the trial court did not abide by the Tedder standard and a claim that the trial court failed to consider nonstatutory mitigating circumstances. The district court denied the petition. On appeal to this court, Johnson raised all but three of the claims presented to the district court. These three claims, which included the challenge to the trial judge’s application of the Tedder standard, were deemed abandoned. Johnson I, 806 F.2d at 1481 n. 5. The remaining claims were all addressed on their merits and rejected. See generally Johnson I, supra. Johnson then returned to the Florida Supreme Court where he attempted to obtain a writ of habeas corpus and a stay of execution. During this proceeding he raised five issues, of which two — that the trial judge considered only statutory mitigating circumstances in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and that appellate counsel was ineffective in failing to appeal the denial of a motion to suppress a pretrial photographic identification — are relevant here. With two justices specially concurring, the Florida Supreme Court rejected all of these claims on their merits. Johnson v. Dugger (“Johnson II”), 523 So.2d 161 (Fla.1988). Concurrently with the habeas proceedings, Johnson also filed a motion with the trial court for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Among the claims raised in this motion were allegations (1) that his trial counsel rendered ineffective assistance by failing to obtain an independent ballistics expert and (2) that his sentencing counsel rendered ineffective assistance by failing to develop and present available psychological evidence at sentencing. The Florida Supreme Court found that these claims had not been timely filed; consequently, the court, with two justices dissenting, ruled that they were procedurally barred. Johnson v. State ("Johnson III”), 536 So.2d 1009 (Fla.1988). Johnson next sought relief in the instant case in federal district court. In that proceeding, Johnson raised the same five issues pending on this appeal. The district court rejected the merits of his Hitchcock claim and his claim that appellate counsel was ineffective. The district court did not reach the merits of Johnson’s other three claims, reasoning that his challenge to the jury override constituted an abuse of the writ and that his various claims of ineffective assistance of trial and sentencing counsel were procedurally barred. II. THE HITCHCOCK CLAIM Johnson argues that the Supreme Court’s recent decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), requires us to reconsider our earlier holding in Johnson I that the trial judge did not impermissibly limit his consideration of mitigating evidence to only those factors set forth in Fla.Stat. § 921.141(6). While we agree that Hitchcock “breathed new vitality into claims” raising the issue of whether the sentencing body was precluded from considering all mitigating evidence, Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987) (in banc), cert. denied, — U.S. -, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989), we do not find that Hitchcock mandates a reversal in this case. On his prior appeal, Johnson argued that the sentencing court refused to either consider or weigh nonstatutory mitigating circumstances. In evaluating this claim, the panel defined its task on review as follows: “we must determine whether there is any indication that the sentencing judge felt himself bound as a matter of law not to consider the mitigating circumstances offered by Johnson.” Johnson I, 806 F.2d at 1484. After examining the transcripts during the sentencing hearing and reviewing the trial judge’s comments both during the hearing and in his final order imposing death, the panel concluded that Johnson’s claim was without merit: In the instant case there is no indication that the trial court felt itself legally bound not to consider the mitigating evidence presented by the defendant. It is true that Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976), the case cited by the trial judge, limited the Florida courts in their consideration of nonstatutory circumstances. However, the trial court was also aware of and acted upon the decision in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), which effectively overruled Alford. Moreover, the trial judge allowed Johnson to present evidence of all these mitigating circumstances to the jury for its consideration, Record on Appeal, vol. 9 at 1651, and expressly noted that he had not “disregarded any of the mitigating circumstances that were offered in evidence, either at the penalty phase or during the trial itself,” id. at 1767. For example, the sentencing judge expressly considered the proffered factor that Johnson did not kill everyone in the store. It is of no constitutional moment that the sentencing judge evaluated the factor as having little or no mitigating value. Johnson I, 806 F.2d at 1484 (footnote omitted). To assess the impact that the Supreme Court’s decision in Hitchcock has on this analysis, we must review Hitchcock in the context of both this court’s in banc opinion in that case and the Supreme Court decision reversing that opinion. In Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985), the in banc court, after having determined that the petitioner had not been restricted in presenting mitigating evidence during the sentencing hearing, concluded that the petitioner was not denied an individualized sentencing hearing. In reversing this conclusion, the Supreme Court held that although the petitioner might have been afforded the opportunity to present mitigating evidence at the sentencing hearing, this fact, by itself, was not sufficient. Rather, a reviewing court’s inquiry must focus upon (1) whether/ in light of all the circumstances, the sentencing jury was instructed that it could consider all mitigating evidence, whether statutory or nonstat-utory, and (2) whether the sentencing judge actually did consider both statutory and nonstatutory evidence. Hitchcock, 481 U.S. at 397, 107 S.Ct. at 1824. See Boyde v. California, — U.S. -, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990) (“The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner.”); Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir.1989) (“The eighth amendment, which is applicable to the states through the fourteenth amendment, requires that a jury in a capital case not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record that the defendant proffers as a basis for a sentence less than death.”) (emphasis in original). In cases decided subsequent to Hitchcock, we have approached the issue of whether a defendant received an individualized sentencing hearing on a case-by-ease basis, looking to all of the surrounding circumstances. Delap v. Dugger, 890 F.2d 285, 304 (11th Cir.1989); Demps v. Dugger, 874 F.2d 1385, 1389 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990); Knight v. Dugger, 863 F.2d 705, 708 (11th Cir.1988). In conducting this assessment, we have focused not on whether the defendant was allowed to present all mitigating evidence during the sentencing hearing, but rather on whether the sentencing jury and judge were free to, and actually did, consider any nonstatutory mitigating evidence that was presented. Delap v. Dugger, 890 F.2d at 304; Demps v. Dugger, 874 F.2d at 1389 & n. 9; Jones, 867 F.2d at 1280. Admittedly, there is some language in Johnson I that suggests too much concentration upon the former consideration. See id. at 1484 (“ 'Our review is completed once it is established that a full hearing was conducted in which appellant’s counsel was given an opportunity to present all the mitigation evidence’ ”) (quoting Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984)). It is clear, however, that the panel did not rely solely upon this ground. Instead, the panel also held that the sentencing judge understood the principle of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and that the sentencing judge expressly stated that he was considering nonstat-utory as well as statutory mitigating circumstances. This assessment remains unaffected by Hitchcock. III. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL Petitioner asserts that his appellate counsel was ineffective for not challenging the trial court’s denial of his motion to suppress the in-court identification of the eyewitness, Gary Summitt. The Florida Supreme Court rejected this argument, holding that Johnson had demonstrated neither sub-standard performance nor prejudice. Johnson II, 523 So.2d at 163. Similarly, the district court, finding that appellate counsel’s performance was not deficient, rejected this claim. Pursuant to the fourteenth amendment, a criminal defendant has the right to receive assistance of counsel on a direct appeal of a state conviction. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This right encompasses the entitlement to receive effective representation by counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). In assessing whether a defendant actually received effective assistance of appellate counsel, the standard of review is the same standard used to evaluate the performance of trial counsel. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987). Thus, to bring a successful claim of ineffective assistance of appellate counsel, petitioner must prove both that his appellate counsel’s performance was deficient and that counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Matire v. Wainwright, 811 F.2d at 1435. Only when counsel performs in an objectively unreasonable manner that falls below the wide range of competence demanded of attorneys in criminal cases can it be said that counsel’s actions were deficient. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.1990). This deficient performance leads to a finding of prejudice upon a showing that it is reasonably probable that the result of the proceedings would have been different absent counsel’s unprofessional errors. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; Cross v. United States, 893 F.2d at 1290. An assessment of either the alleged deficiency in appellate counsel’s performance or the resulting prejudice arising therefrom requires an initial evaluation of the merits of petitioner’s claims that the trial testimony concerning eyewitness Gary Summitt’s identification of a photograph of Johnson and Summitt’s own in-court identification of Johnson were both so unreliable as to violate due process. See Cross v. United States, 893 F.2d at 1290; Matire v. Wainwright, 811 F.2d at 1435. See also Funchess v. Wainwright, 772 F.2d 683, 695 (11th Cir.1985) (“the best way to evaluate this issue is to examine the alleged trial errors to see if they contain sufficient merit to justify faulting appellate counsel for not having raised them”), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986). In other words, if the underlying motion to suppress was without merit, then Johnson cannot demonstrate either deficient performance or prejudice. We, therefore, proceed with an analysis of Johnson’s claim that the identification should have been suppressed. The facts, as testified to during the suppression hearing, were uncontested. Within fifteen to thirty minutes of the offense, Summitt at least three times gave similar descriptions of the individual who committed the crime. He was then shown four photographs, three of Johnson and a fourth that did not meet his description. From the photographs, Summitt identified Johnson. There is no question that the manner in which Summitt was presented with the photographs and made his identification was unduly suggestive. See Marsden v. Moore, 847 F.2d 1536, 1545 (11th Cir.) (procedure unduly suggestive when witness shown only three pictures — one of the defendant, one of the defendant and his wife, one of the defendant’s wife), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir.1986) (photographic identification procedure unduly suggestive where one victim only shown four photographs of the defendant and other witness shown 12 photographs, four of which were of the defendant and two of which were of individuals of a different race), modified on reh’g, 809 F.2d 750 (11th Cir.), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). However, that fact in and of itself is not sufficient to constitute reversible error. Rather, in order to prove that eyewitness testimony identifying the defendant as the individual who committed the crime was so tainted as to be unreliable, Johnson must also establish that the officers’ actions in showing Summitt the photographs created a substantial risk of mis-identification. Dobbs v. Kemp, 790 F.2d at 1506; United States v. Cannington, 729 F.2d 702, 711 (11th Cir.1984). In other words, notwithstanding an unduly suggestive photograph identification procedure, testimony concerning an eyewitness’s identification of the defendant is admissible if, under all of the circumstances, the witness’s identification of the defendant is reliable. Manson v. Brathwaite, 432 U.S. 98, 114-17, 97 S.Ct. 2243, 2253-54, 53 L.Ed.2d 140 (1977); Hudson v. Blackburn, 601 F.2d 785, 788 (5th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1980); United States v. Gidley, 527 F.2d 1345, 1350 (5th Cir.), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). Looking to some of the relevant factors to be considered in evaluating the reliability of the identification — “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation,” Hudson v. Blackburn, 601 F.2d at 788; see Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972)—we find that there was no likelihood of mis-identification in this case. Summitt was able to view Johnson’s face several times from a distance of no more than one and a half feet. He gave consistent detailed descriptions of Johnson’s facial appearance and attire. When presented with Johnson’s photographs within thirty minutes of the offense, he confidently identified Johnson as the offender. Similarly, without hesitation, he rebuffed a rather difficult trial cross-examination which challenged his physical and mental condition immediately after the offense and identified Johnson as the individual who committed the crime. These factors indicate that the testimony concerning Summitt’s identification of Johnson was sufficiently reliable to outweigh the corruptive effect of the suggestive identification procedure. See Allen v. Estelle, 568 F.2d 1108, 1113 (5th Cir.1978) (final step of analysis is to weigh the factors supporting reliability of the evaluation against the corrupting effect of the suggestive identification). Given this conclusion, Johnson’s claim that his appellate counsel was ineffective for not raising this claim on direct appeal must fail. See Cross v. United States, 893 F.2d at 1292; Funchess v. Wainwright, 772 F.2d at 695 (“counsel is not to be faulted for failing to raise issues reasonably considered to be without merit”). IV. MISAPPLICATION OF THE TEDDER STANDARD Johnson contends that the trial court’s decision to override the jury’s recommendation of life imprisonment was unauthorized under Florida law, and that if not set aside, this decision represents an arbitrary application of the death penalty. He premises this claim on the standard announced in Tedder v. State, 322 So.2d 908, 910 (Fla.1975), which mandates that “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Twice the Florida courts have reviewed this claim. On direct appeal of his conviction and sentence, the Florida Supreme Court by a bare majority upheld the trial court’s override of the jury’s recommendation, reasoning that while “the jury recommendation is to be accorded great weight,” the facts in Johnson’s case supported imposition of the death penalty. Johnson v. State, 393 So.2d at 1074 (“There are no mitigating circumstances, statutory or otherwise, and there are four valid aggravating circumstances. We conclude that death is the appropriate sentence to be imposed for this 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”). The Florida Supreme Court again rejected this claim when Johnson raised it in his application for a writ of habeas corpus and a stay of execution. Johnson II, 523 So.2d at 162. Without reaching the merits, the district court rejected Johnson’s claims concerning the jury override issue. The court noted that this was Johnson’s second federal ha-beas petition and that Johnson should have pursued the issue during the pendency of his prior federal proceedings. We agree. Johnson raised this claim in his first habeas corpus petition filed in federal district court, but abandoned the claim on appeal. With no explanation for his prior conduct, he now argues that the “ends of justice" require consideration of this issue on this appeal. Although the exact contours of what constitutes the “ends of justice” sufficient to excuse an abuse of the writ are somewhat illusory, see Section V.D.2, infra, a review of the merits of Johnson’s claims convinces us that no proper showing has been made concerning his jury override claims. See Messer v. Kemp, 831 F.2d 946, 958-59 (11th Cir.1987) (in banc) (“Because we conclude, as a matter of law, that the record in this case fails to disclose [the alleged constitutional violation], our ‘ends of justice’ analysis need not proceed any further.”), cert. denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988). In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Supreme Court held that Florida’s statutory scheme in which a sentencing judge can override an advisory sentencing jury’s recommendation of life imprisonment is constitutionally permissible. In reaching this conclusion, the Court rejected the notion that an individual has a constitutional right to have a jury determine the appropriateness of the imposition of a capital sentence. Id. at 460-65, 104 S.Ct. at 3162-65. See also Clemons v. Mississippi, — U.S. -, 110 S.Ct. 1441, 1446-47, 108 L.Ed.2d 725 (1990) (summarizing holdings). The fact that the Supreme Court has approved the structural framework of the Florida sentencing process does not mean, however, that a trial judge’s decision to override an advisory jury’s recommendation of life imprisonment is wholly insulated from federal habeas review. Federal courts still maintain the responsibility for ensuring that the trial court’s decision to override the jury’s recommendation in any particular case does not result in an arbitrary or discriminatory application of the death penalty. Spaziano v. Florida, 468 U.S. at 465, 104 S.Ct. at 3165; Lusk v. Dugger, 890 F.2d 332, 342 (11th Cir.1990); Parker v. Dugger, 876 F.2d 1470, 1474-75 (11th Cir.1989), cert. granted, — U.S. -, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990). Federal court review in this area, however, is not without limitation; to the contrary, our review is quite circumscribed: It is not our function to decide whether we agree with the advisory jury or with the trial judge and the Supreme Court of Florida. Our review, rather, is limited to ascertaining whether the result of the override scheme is arbitrary or discriminatory. Lusk v. Dugger, 890 F.2d at 342 (emphasis in original). In other words, 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. See Lusk v. Dugger, 890 F.2d at 342; Parker v. Dugger, 876 F.2d at 1475. The answer to that question is solely an issue of state law and it is not within our province to second-guess that result. Spaziano v. Florida, 468 U.S. at 465, 104 S.Ct. at 3154. Instead, our review of a particular case challenging the state court’s approval of trial court override of jury’s life recommendation is limited to whether the imposition of the death penalty in that given case is either arbitrary or discriminatory. Id. Johnson points to four factors which he contends warrant a conclusion that the “ends of justice” mandate setting aside the death penalty in his case: First, he points to the fact that only a bare majority of the Florida Supreme Court thought the trial court’s override of the jury’s recommendation was proper on direct appeal. Johnson v. State, 393 So.2d at 1074; id. at 1075 (Sundberg, C.J., concurring in part and dissenting in part); id. at 1075 (McDonald, J., dissenting). Second, he contends that in Johnson II, the Florida Supreme Court intimated that his jury override would not be acceptable if presented today, but that the court, invoking the “law of the case” doctrine, refused to reverse the death penalty. See Johnson II, 523 So.2d at 162 (“even though the jury override might not have been sustained today, it is the law of the case. In view of the Court’s prior consideration of this issue, there has been no showing of prejudice”). Third, he argues that a majority of the present Florida Supreme Court has clearly stated that imposition of the death penalty is improper in his case. And finally, he points to Cochran v. State, 547 So.2d 928, 933 (Fla.1989) (per curiam), in which he argues that the Florida Supreme Court has expressly conceded that it currently applies the Tedder standard in a manner differently from the manner in which it was applied during the pendency of his direct appeal. These four factors, he argues, inextricably lead to the conclusion that his sentence of death represents an arbitrary imposition of death. Although Johnson’s arguments have considerable force, to the extent that they are directed to the federal courts, they ultimately must fail. Admittedly, the fact that there is an indication that the jury override decision might not be sustained had it been appealed to the Florida Supreme Court today is some indication of arbitrariness. However, we cannot conclude that the decision not to set aside the trial court’s decision rises to the required constitutional level of arbitrariness. "A state imposes punishment arbitrarily ‘when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.’ ” Parker v. Dugger, 876 F.2d at 1476 (quoting Furman v. Georgia, 408 U.S. 238, 274, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring)). Here, the Florida Supreme Court, by invoking “law of the case,” determined that it would not revisit its earlier determination that not only were there no mitigating circumstances to support the jury’s recommendation of life imprisonment, but that there were four aggravating circumstances present. Given those facts, the court concluded on direct appeal “that the facts suggesting the death sentence are so clear and convincing that virtually no reasonable person could differ.” Johnson, 393 So.2d at 1074. The court’s invocation of the “law of the case” doctrine in Johnson II was not constitutionally arbitrary. The Florida courts have relied upon the “law of the case” doctrine “in order to lend stability to judicial decisions and the jurisprudence of the state, as well as to avoid ‘piecemeal’ appeals and to bring litigation to an end as expeditiously as possible.” Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965). We have ourselves recognized that this doctrine “operates to create efficiency, finality and obedience within the judicial system.” Litman v. Massachusetts Mutual Life Insurance Co., 825 F.2d 1506, 1511 (11th Cir.1987) (in banc), cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 652 (1988). In refusing to review claims on habeas that it has already determined adversely to the petitioner on direct appeal, the Florida Supreme Court has emphasized the state’s significant interest in obtaining finality of judgments. See, e.g., Porter v. Dugger, 559 So.2d 201 (Fla.1990); Kennedy v. Wainwright, 483 So.2d 424, 426 (Fla.), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986). Given the recognized and significant interest that a state has in reaching finality in its criminal judgments, cf. Butler v. McKellar, — U.S. -, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Saffle v. Parks, — U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1074-75, 103 L.Ed.2d 334 (1989), we cannot conclude in this case that the state’s invocation of the “law of the case” doctrine constitutes an arbitrary decision justifying federal court intervention. In Johnson v. State, 393 So.2d at 1074, the Florida Supreme Court affirmed the trial court’s determination that there were four statutory aggravating factors and no mitigating factors whatsoever. In light of the foregoing, we find that imposition of the death penalty in this case was not unconstitutionally arbitrary. See Spaziano v. Florida, 104 S.Ct. at 3166; Lusk v. Dugger, 890 F.2d at 342; Parker v. Dugger, 876 F.2d at 1475-76. V. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING Johnson claims that he received ineffective assistance of counsel during the sentencing phase of his state court trial. He contends that the counsel employed at sentencing and the psychiatrist who assisted counsel were woefully unprepared to put on an effective defense. He also alleges that counsel inexplicably failed to inform his psychiatrist of his 25-year history of multiple drug abuse and addiction. Had this evidence been developed, he charges, sentencing counsel would have been able to create a record that probably would have influenced the sentencing judge to honor the jury verdict and, in any event, would have prompted the Florida Supreme Court to implement the Tedder standard precluding the override. Without a hearing, the district court rejected this claim as being procedurally barred. The court noted that Johnson sought to raise this claim in his Florida Rule 3.850 proceedings. The Florida Supreme Court, however, rejected this claim, finding that Johnson had not filed his Rule 3.850 petition within the rule’s time constraints, and that consequently, review on the merits was barred. Johnson III, supra. A. Procedural Default The doctrine of procedural default is grounded upon considerations of comity and concerns for the orderly administration of criminal justice. Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 2646-47, 91 L.Ed.2d 397 (1986); Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.1990). The doctrine was developed as a means to ensure that petitioners would first seek relief in accordance with existing state procedures. See Presnell v. Kemp, 835 F.2d 1567, 1578-79 (11th Cir.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1004 (1989). By channeling petitioners’ claims initially into the state courts for resolution, the doctrine vindicates the state’s interest in the integrity of its proceedings and gives due recognition to state rules designed to promote accuracy, efficiency, and finality of judicial decisions. Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1984). In practice, the procedural default rule creates an incentive for petitioners to utilize state rules and proceedings by imposing a severe limitation on petitioners’ ability to present claims in federal courts that were not initially raised in accordance with state rules of procedure. For example, petitioners who fail to abide by state court rules requiring a timely objection at trial will find that their ability to raise such claims in federal courts is severely circumscribed. See, e.g., Engle v. Isaac, 456 U.S. 107, 124-29, 102 S.Ct. 1558, 1570-72, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977). Similarly, petitioners who fail to raise appropriate issues on direct appeal, see Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2665-66, 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. at 490-92, 106 S.Ct. at 2646-47, or who fail to abide by a state rule governing the manner in which claims should be presented in a state collateral attack, see Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir.1990); Presnell v. Kemp, 835 F.2d at 1580, may also find that federal court review of their constitutional claims is not available. However, the constraints that the procedural default doctrine place on federal court review of federal constitutional claims are not without limit. In recognition of the important role that federal courts play in vindicating the constitutional rights of state prisoners, see Reed v. Ross, 468 U.S. at 10, 104 S.Ct. at 2907 (“There can be no doubt that in enacting § 2254, Congress sought to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action”) (quotation and citation omitted), certain criteria have been established which must be met before federal judicial review will be barred. First, the last state court to review the petitioner’s claim must clearly and expressly rely upon its state procedural rule in its explanation why it is refusing to hear the petitioner’s claim. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Richardson v. Thigpen, 883 F.2d 895 (11th Cir.), cert. denied, — U.S. -, 110 S.Ct. 17, 106 L.Ed.2d 631 (1989). A state court’s failure to give a “plain statement” explicitly relying upon a state law ground will result in the procedural default doctrine being inapplicable. Harris v. Reed, 489 U.S. at -, 109 S.Ct. at 1045; see Oliver v. Wainwright, 795 F.2d 1524, 1529 (11th Cir.1986), cert. denied, 480 U.S. 921, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987). Second, the procedural rule relied upon by the state court must serve as an independent state law ground for denying relief. Harris v. Reed, 489 U.S. at -, 109 S.Ct. at 1042. Although a state court may reach the merits of the petitioner’s federal law claim in an alternative holding, id., 489 U.S. at -, 109 S.Ct. at 1044 n. 10; Dobbert v. Strickland, 718 F.2d 1518, 1524-25 (11th Cir.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984), its invocation and reliance upon a state procedural rule must be premised solely on an interpretation of state law. See Caldwell v. Mississippi, 472 U.S. 320, 328, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985); Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985). And finally, the state procedural rule must be adequate: that is, it must not be one that has been inconsistently interpreted or irregularly applied, see Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); Francois v. Wainwright, 741 F.2d 1275, 1281 (11th Cir.1984), or that is manifestly unfair in its treatment of petitioner’s constitutional claim, see Oliver v. Wainwright, 795 F.2d at 1529; Spencer v. Kemp, 781 F.2d 1458, 1470-71 (11th Cir.1986) (in banc); rather, it must be a rule that the state court has faithfully applied in relevant cases. See Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Smith v. Dugger, 840 F.2d 787, 796 (11th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 1511, 108 L.Ed.2d 647 (1990). Additionally, in recognition of the fact that the procedural default rule is an equitable rule that should not preclude the correction of a fundamental miscarriage of justice, the Supreme Court has carved out two exceptions to the doctrine’s applicability. Under the first exception, an adequate and independent finding of state law procedural default will not bar federal habeas review of federal claims if the petitioner can show both “ ‘cause’ for the default and ‘prejudice attributable thereto.’ ” Harris v. Reed, 489 U.S. at -, 109 S.Ct. at 1043 (quoting Murray v. Carrier, 477 U.S. at 495, 106 S.Ct. at 2649); Engle v. Isaac, 456 U.S. at 129, 102 S.Ct. at 1573; Wainwright v. Sykes, 433 U.S. at 90-91, 97 S.Ct. at 2508. Although the Supreme Court believed that application of this “cause and prejudice” standard would correct the vast majority of instances in which a state petitioner was a victim of a fundamental miscarriage of justice, the Court recognized that in certain extraordinary cases, that might not be so. Accordingly, the Court carved a second, significantly more narrow exception to encompass those cases in which an individual was subjected to a fundamentally unjust incarceration: “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.” Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. B. Johnson Cannot Establish Cause for his State Procedural Default Johnson first raised this ineffective assistance of counsel claim in Johnson III, supra. The Florida Supreme Court did not address the claim on the merits; instead, it concluded that because Johnson had failed to file his motion for postconviction relief within the two-year time limit imposed by Fla.R.Crim.P. 3.850, this claim was untimely filed. 536 So.2d at 1011. The Florida court’s invocation of its two-year statute of limitations for commencing a state collateral proceeding constitutes an “adequate and independent state ground” for refusing to consider this federal claim. Whiddon v. Dugger, 894 F.2d at 1267-68. Thus, before we can review Johnson’s claim, he must either establish cause and prejudice or show that refusal to consider the claim would result in a fundamental miscarriage of justice. Id. at 1267-68 and n. 2 (failure to comply with Rule 3.850’s time limitations is reviewed under the “cause and prejudice” standard and not the “deliberate bypass” standard set forth in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). See generally Presnell v. Kemp, 835 F.2d 1567 (11th Cir.1988) (“cause and prejudice” standard for evaluating claims that are procedurally barred due to petitioner’s failure to present claims seasonably to state habeas court), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1004 (1989). Johnson first argues that he can establish cause for his procedural default in state court. He claims that he instructed his attorneys handling his state court collateral challenges to raise all possible grounds including an ineffective assistance of counsel claim premised upon a lack of investigation into his psychological well-being. The Florida Supreme Court found that Johnson’s post-conviction counsel’s failure to file a timely Rule 3.850 motion was attributable to an exercise of what, at least in retrospect, was a badly flawed exercise in judgment. See Johnson III, 536 So.2d at 1011 (“counsel in the postconviction hearing candidly stated that when Johnson’s lawyers decided to go to federal court, they elected to raise only certain claims and assumed that they could always come back to state court and raise others”). These errors on the part of collateral counsel, he contends, amount to ineffective assistance of counsel which constitutes the necessary cause to excuse his procedural default. Although the Supreme Court has declined “to essay a comprehensive catalog of the circumstances that would justify a finding of cause,” Smith v. Murray, 477 U.S. at 533-34, 106 S.Ct. at 2666, the Court has given some indications as to what does and does not constitute cause. For example, claims that compliance with a state procedural rule would be futile given the state court’s past treatment of a particular issue cannot constitute cause. Engle v. Isaac, 456 U.S. at 130, 102 S.Ct. at 1573. Similarly, actions of counsel, be they motivated by tactical or deliberate thought, see Smith v. Murray, 477 U.S. at 535-36, 106 S.Ct. at 2666-67; Reed v. Ross, 468 U.S. at 14, 104 S.Ct. at 2909, or through inadvertence or error, see Murray v. Carrier, 477 U.S. at 487-88, 106 S.Ct. at 2644-45, will not constitute cause. On the other hand, if a petitioner can show that the procedural default is the result of ineffective assistance of trial or appellate counsel, then cause for the default will be established. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Similarly, cause will be found in instances in which a petitioner can “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. Thus, cause for failure to comply with a procedural rule may be established by a showing that the factual or legal basis for a claim was not reasonably available to the petitioner, see Amadeo v. Zant, 486 U.S. 214, 222-24, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988); Reed v. Ross, 468 U.S. at 15-16, 104 S.Ct. at 2910, that interference by state officials made compliance impossible, see Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 263-64, 95 L.Ed. 215 (1951), or that the procedural default was caused by some other factors outside of either the petitioner’s or his counsel’s control. See, e.g., Alexander v. Dugger, 841 F.2d 371, 374 (11th Cir.1988) (delays in mail); Meagher v. Dugger, 861 F.2d 1242, 1245-46 (11th Cir.1988) (same). The Supreme Court has not yet addressed the precise claim of cause alleged here: namely, whether cause may be established with proof that the procedural default was a result of the errors of counsel in state court collateral proceedings. A recent panel of this court, however, has addressed this very contention and rejected it. Toles v. Jones, 888 F.2d 95, 99-100 (11th Cir.1989) (per curiam) (rejecting argument that cause for procedural default may be attributed to the inadequate assistance of court-appointed counsel during state court collateral proceedings: “Since [petitioner] had no constitutional right to coram nobis counsel, he cannot excuse a procedural default based upon ineffective assistance rendered by that counsel”) (citations omitted); see also Whiddon v. Dugger, 894 F.2d at 1267 (“[bjecause there is no right to legal counsel in collateral proceedings, poor advice about such proceedings from a state-provided lawyer or inmate law clerks will not establish petitioner’s claim of ‘cause’ ”). Accord Coleman v. Thompson, 895 F.2d 139, 144 (4th Cir.1990). Thus, while we recognize the fact that one of our sister circuits has applied an ineffective assistance analysis to determine whether the failure of an attorney to raise an issue on a state collateral challenge constitutes cause, see Harper v. Nix, 867 F.2d 455, 457 (8th Cir.1989), Stokes v. Armontrout, 851 F.2d 1085, 1092-93 (8th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989), and that the Seventh Circuit has in dicta expressed conflicting views as to whether such a showing may constitute cause, compare Madyun v. Young, 852 F.2d 1029, 1033 n. 2 (7th Cir.1988) (may constitute cause); Buelow v. Dickey, 847 F.2d 420, 426 (7th Cir.1988) (cannot establish cause), cert, denied sub nom. Buelow v. Bablitch, — U.S. -, 109 S.Ct. 1168, 103 L.Ed.2d 227 (1989); Morrison v. Duckworth, 898 F.2d 1298 (7th Cir.1990) (might sometimes constitute cause), we are constrained by prior precedent to reject this proffer of cause. C. A Remand is Necessary to Determine Whether Johnson’s Claims Must be Heard to Avoid a Fundamental Miscarriage of Justice Johnson also argues that the errors of his trial counsel in not presenting relevant mitigating evidence are of such a magnitude that the second exception to the procedural default doctrine must be invoked. He argues that to do otherwise would be to condone the imposition of the death sentence on an individual who, under Florida state law, would otherwise not be put to death. Therefore, he asserts, this court must exercise its equitable powers and consider his claim in order to prevent a fundamental miscarriage of justice. It is well-recognized that, in certain extraordinary circumstances, a federal court has the inherent, equitable power to consider an issue notwithstanding the existence of a procedural bar. See Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at 2668; Murray v. Carrier, 477 U.S. at 495-96, 106 S.Ct. at 2649. The more difficult determination is delineating what circumstances are sufficiently compelling to authorize federal court intervention. See 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4266.1 at 467 (1988 & Supp.1989). Because prior precedent suggests that the ultimate determination as to whether federal intervention is warranted is inextricably linked to the actual allegations raised in the petitioner’s claim, see Dugger v. Adams, 489 U.S. at -, 109 S.Ct. at 1217 n. 6; Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668, we find it advisable, before inquiring whether Johnson’s allegations and proffer of proof are sufficient to warrant federal consideration, to first examine the substantive content of his claim. Cf. Messer v. Kemp, 831 F.2d at 958-59. 1. Johnson’s Claim of Ineffective Assistance of Sentencing Counsel Johnson’s claim of ineffective assistance of sentencing counsel is premised upon the alleged failure of his attorney and court-appointed psychologist to conduct a competent investigation concerning his mental and psychological state prior to sentencing. Had they done so, he alleges, they would have discovered severe psychological disabilities resulting from his prolonged and obsessive history of drug consumption. Relying upon Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which guarantees a criminal defendant the right to effective assistance of counsel, Johnson contends that had his counsel and psychologist developed an adequate psychological profile of his condition, they would have discovered more than sufficient evidence to support findings of at least three statutory mitigating factors. These findings, he charges, would have precluded the trial court’s jury override. Johnson’s counsel at sentencing were not involved in his defense during any of the preliminary proceedings, the jury voir dire, or the actual trial, nor did they attend those proceedings. Although the sentencing hearing took place the day after the conviction was announced, sentencing counsel did not attempt to procure the services of a psychologist to examine Johnson until after conviction. Upon locating a psychologist, Dr. Ronald Yarbrough, they then proceeded to the jail where Johnson was being held. It was not until 11:00 p.m. that night that Dr. Yarbrough was finally able to meet with Johnson at the jail. Given the lateness of the hour and the fact that the sentencing proceeding was scheduled for the next day, Dr. Yarbrough was able to conduct only a brief two and one-half hour diagnostic interview in which he administered various psychological tests. This interview was to form the sole basis of Dr. Yarbrough’s testimony at the sentencing hearing. The testimony Dr. Yarbrough gave at the jury sentencing hearing, Johnson charges, was premised upon a woefully incomplete psychological examination. At the hearing, Dr. Yarbrough, although unable to offer any conclusions concerning Johnson’s mental and psychological stability, testified that from his very brief diagnostic interview with Johnson he was able to develop “some strong hypotheses” concerning Johnson’s condition. He testified that Johnson probably had a high average range of intelligence and an extremely high level of common sense. He further offered his impression that Johnson appeared in touch with reality and was capable of immediately grasping situations that confront him. According to Dr. Yarbrough’s testimony, Johnson evidenced no signs of organic brain damage, and there was no evidence that he lacked the capacity to appreciate the criminality of his conduct. The only evidence that Dr. Yarbrough was effectively able to offer in mitigation was an opinion that Johnson’s normal ability to function deteriorates significantly when confronted with a stressful situation. This psychological assessment was severely flawed, Johnson now charges, by his sentencing counsel’s failure to provide Dr. Yarbrough with any information indicating Johnson’s almost 25-year history of severe, multiple drug addiction. As Dr. Yar-brough concedes in an affidavit filed with Johnson’s petition for federal habeas corpus, at the time that he testified before the sentencing jury, he had no indication of Johnson’s drug affliction, much less the totally pervasive nature of his addiction. Dr. Yarbrough’s affidavit reveals that, at the time of the sentencing hearing, he was not aware that Johnson was suffering from an extraordinarily severe “physical, psychological and financial dependency to a poly-drug use habit” which had developed several years earlier when Johnson began taking painkillers after having been seriously injured in a motorcycle accident. Nor was he aware that Johnson regularly consumed large quantities of various narcotics simultaneously or that in the days immediately prior to the offense Johnson had obtained and been continuously consuming narcotics and other stimulants. After having been thoroughly apprised of Johnson’s drug abuse and having reviewed affidavits not only from Johnson’s friends and family members attesting to Johnson’s history of severe drug problems, but also from Dr. Peter Macaluso, an expert addictionologist who has since conducted an extensive interview with Johnson concerning his substantial consumption of alcohol and narcotics, Dr. Yarbrough now concludes that much of his testimony before the sentencing jury was erroneous. Dr. Yarbrough’s current assessment of Johnson’s psychological condition at the time of the offense is radically different from his sentencing testimony. Dr. Yar-brough’s evaluation of Johnson now describes an individual wholly and completely consumed with the thought of obtaining drugs. Johnson’s addiction, according to Dr. Yarbrough, lead to an absolute psychological obsession with drug consumption. Knowing that Johnson had been regularly consuming narcotics in the days leading up to the offense and having been provided information concerning Johnson’s “addiction to drugs, which was the sole motivation for the drugstore robbery that resulted in an unplanned gun battle and the victim’s death,” Johnson III, 536 So.2d at 1013 (Barkett, J., dissenting), Dr. Yar-brough now opines that Johnson “was under the influence of a totally controlling, extreme drug addiction which would have lead to his mind being totally controlled by the presence or absence of drugs.” In another reversal of his earlier preliminary findings as testified to the advisory jury, Dr. Yarbrough now concludes that Johnson “acted under extreme duress, when fired upon [by the victim], 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 capacity to appreciate the criminality of his behavior or to conform to the requirements of the law were [sic] substantially impaired.” Other affidavits offered by Johnson establish that two other experts who personally interviewed Johnson in 1988, Dr. Maca-luso and Dr. Robert A. Fox, Jr., a psychiatrist, concur with Dr. Yarbrough’s revised assessment. They report that until he suffered a serious back injury in 1974, Johnson had been vocally opposed to narcotic drug abuse. After the injury, however, Johnson began using narcotics to ease the pain. Although initially these drugs were prescribed by his treating physician, when the prescription was discontinued, Johnson began self-administering illegal narcotics in an attempt to ease the continuing pain. Unfortunately, they report, what commenced as a treatment for pain soon manifested itself as an obsessive addiction transforming Johnson into an individual “with an extraordinarily severe drug dependence personality” who used drugs “in an obsessive and compulsive manner.” As with Dr. Yarbrough’s current assessment, many of the current conclusions offered by Drs. Fox and Macaluso stand directly contrary to Dr. Yarbrough’s sentencing testimony. According to Drs. Fox and Macaluso, Johnson’s physical and psychological addiction was so overwhelming that it overpowered his capacity for rational thought. In their opinion, 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 left Johnson unable to curtail his criminal actions or appreciate the nature of his actions. And finally, in yet another contradiction of Dr. Yarbrough’s sentencing testimony, their interviews revealed evidence that Johnson suffered from both “metabolic and chemical organic brain syndrome.” The results from these more recent comprehensive psychological examinations are extremely significant. The results, if true, demonstrate that Dr. Yarbrough’s preliminary conclusions as testified to in the advisory jury sentencing hearing were woefully inaccurate. More importantly, this evidence, if true, suggests the existence of three statutory mitigating factors under Florida law. 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 the 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.”). Thus, were this case before us unencumbered with concerns of procedural default, we think it is clear that the proffered evidence would support a conclusion that Johnson was prejudiced by his sentencing counsel’s failure to develop and present this evidence during sentencing before the trial judge. See Porter v. Wainwright, 805 F.2d 930, 935-36 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987); Stevens v. State, 552 So.2d 1082, 1086 (Fla.1989). Here, the sentencing court in overriding the jury’s recommendation of life imprisonment emphasized the fact that he found no mitigating circumstances to support the jury’s recommendation. On the basis of this factual finding, he determined that since he could adduce no facts upon which a reasonable person could suggest a sentence other than death, a jury override was appropriate. However, the evidence that Johnson has submitted now suggests that the sentencing judge was operating under a fundamental misconception as to the existence of mitigating factors. Given these facts, we find our observations in Porter v. Wainwright, supra, a case involving an almost identical scenario, to be particularly apropos: “[I]n light of the fact that the sentencing judge viewed this case as one without mitigating circumstances when in fact, assuming [petitionerj’s allegations to be true as we must in this posture, there were mitigating circumstances which cannot be characterized as insubstantial, our confidence in the outcome — the outcome being the trial judge’s decision to reject the jury recommendation — is undermined.” 805 F.2d at 936 (footnote omitted). See also Douglas v. Wainwright, 714 F.2d 1532, 1554-58 (11th Cir.1983), vacated, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874 (1984), reinstated, 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985); Heiney v. Dugger, 558 So.2d 398 (Fla.1990); Stevens v. State, 552 So.2d at 1085-88. We conclude that there is a reasonable probability that the sentencing judge would not have overridden the jury verdict had he been presented with the evidence now proffered. Indeed, we conclude that there is a high degree of certainty that the sentencing court would not have overridden the jury verdict. Moreover, under Florida law, a trial judge may override a jury’s life recommendation only when “the facts suggesting a sentence of death” are “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d at 910. Had the three statutory mitigating factors supported by Johnson's proffer been established during the sentencing hearing before the judge, we conclude that there is a reasonable probability that the Florida Supreme Court would not have permitted an override. Indeed, when reviewed in context of the sharp differences in opinion concerning the propriety of the sentencing judge’s jury override on the existing record — i.e., absent consideration of the newly proffered evidence — see Johnson II, 523 So.2d at 161 (Barkett, J., specially concurring); Johnson v. State, 393 So.2d at 1074; id. at 1075 (Sundberg, C.J., concurring in part and dissenting in part); id. at 1075 (McDonald, J., dissenting), we conclude that there is a high degree of certainty that the Florida Supreme Court would not have permitted such an override had the evidence now before us been timely presented. Without conceding the prejudice prong of the Strickland formula, the state at oral argument suggested that the entire inquiry is unnecessary because the decision not to develop this evidence concerning the manifestation of Johnson’s drug obsession was the product of a tactical decision by Johnson’s sentencing counsel. According to the state, Johnson’s sentencing counsel determined that the most expedient manner in which to protect the jury’s life recommendation was to do nothing that would draw the sentencing judge’s attention away from the jury’s verdict. The state also suggests that there was a strong tactical reason for not introducing evidence of Johnson’s drug addiction: doing so would have allowed the state to introduce the details of Johnson’s extensive record of violent criminal behavior exhibited in his pursuit of obtaining more and more narcotics. Johnson’s attorneys, the state argues, were extremely concerned that the advisory sentencing jury would learn about Johnson’s history of criminal violence. As evidence of this concern, the state points to the fact that Johnson’s attorneys successfully convinced the sentencing judge to enter a motion in li-mine prohibiting the introduction of character evidence. Add