In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), we granted Deutscher’s petition for writ of habeas corpus because he was represented by constitutionally deficient counsel at sentencing and was prejudiced by his counsel’s failure to present mitigating evidence and to challenge an unconstitutional aggravating factor. By order of the United States Supreme Court, we review this ruling in light of McCleskey v. Zant, 499 U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and Lewis v. Jeffers, 497 U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990).
The government sufficiently pleaded abuse of the writ. McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. We determine whether Deutscher is excused from this default by the same standard used to determine whether to excuse state procedural defaults. Id. 111 S.Ct. at 1468.
Deutscher is unable to establish cause for his failure to raise either the ineffective assistance of counsel or the invalid aggravating circumstance claim in his previous petition. Ineffective assistance of counsel establishes cause for default only if the Sixth Amendment guarantees a right to counsel at the proceeding in which the default occurred. Coleman v. Thompson, 499 U.S. -, -, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991). Deutscher did not have a constitutional right to counsel in his first habeas appeal. His failure to raise valid constitutional claims in the original habeas appeal is attributable to the continued deficient representation of his counsel, but that does not establish cause for his default. Id.
Although Deutscher has not shown cause for his default, we retain authority to issue the writ if the petition “implicat[es] a fundamental miscarriage of justice.” McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. Where a constitutional violation has more probably than not resulted in a capital sentence for one who should not have been sentenced to death, issuance of the writ is necessary to ensure that a fundamental miscarriage of justice does not occur. See Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Smith v. Murray, 477 U.S. 527, 537-39, 106 S.Ct. 2661, 2667-69, 91 L.Ed.2d 434 (1986); Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1990).
The Supreme Court has not defined the standard by which the “fundamental miscarriage of justice” exception applies to the sentencing phase of a capital case. Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6. The Eighth and Eleventh Circuits have addressed the issue and reached different conclusions. In the Eighth Circuit, the exception applies to the penalty phase of a capital case “ ‘if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.’ ” Stokes, 893 F.2d 152, 156 (8th Cir.1990) (quoting Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989). The Eleventh Circuit has adopted a more restrictive approach:
The sentenced defendant must demonstrate not merely that the error affected the sentencing outcome, but that the error resulted in a sentencing outcome for which the defendant is not eligible by virtue of his conduct.... That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the [1445]*1445petitioner was ineligible for the death penalty.
Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir.1991) (en banc).
Fundamental fairness, the hallmark of our Constitution, compels us to follow the standard recognized by the Eighth Circuit. The approach adopted by the Eleventh Circuit fails to fulfill the stated purpose of the fundamental miscarriage of justice exception. We recognize that the Constitution does not require that the trial in a capital case be perfect. But in a civilized society, we cannot ignore constitutional violations that have so infected a capital case that an individual has been sentenced to die who, but for constitutional errors during sentencing, would likely not be put to death. The Eleventh Circuit requires not only that a defendant would not have been sentenced to death; it requires that the defendant could not have been sentenced to death. This approach offends the Constitution and fails to comport with Supreme Court precedent.
The death penalty escapes condemnation as cruel and unusual punishment only if its imposition is “at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 465 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). The requirements of consistent application and fairness to the accused necessitate that a sentence of death be based on an informed and accurate decision. See Johnson v. Mississippi, 486 U.S. 578, 584, 108 S.Ct. 1981, 1986, 100 L.Ed.2d 575 (1988) (“The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special ‘need for reliability in the determination that death is the appropriate punishment’ in any capital case.” (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (White, J., concurring in judgment)). Thus, in determining whether the fundamental miscarriage of justice exception applied in Smith v. Murray, the Supreme Court considered whether the defendant presented a “substantial claim that [constitutional] error undermined the accuracy of the ... sentencing determination.” 477 U.S. at 539, 106 S.Ct. at 2668. It is not enough that an error “is by its nature the kind of error that might have affected the accuracy of a death sentence.” Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6 (emphasis added). Rather, the defendant must make a “colorable showing” that constitutional error, in fact, undermined the accuracy of the sentence. Smith, 477 U.S. at 538-39, 106 S.Ct. at 2668-69. Whether such a showing has been made “must be determined by reference to all probative evidence.” Kuhlmann v. Wilson, 477 U.S. 436, 454-55 n. 17, 106 S.Ct. 2616, 2627-28 n. 17, 91 L.Ed.2d 364 (1986) (emphasis in original).
Nevada law requires jurors to weigh mitigating and aggravating circumstances in determining whether a death sentence is warranted. The existence of a valid aggravating circumstance, standing alone, does not mandate death. It is the presence of a valid aggravating circumstance that invokes the “individualized capital sentencing doctrine” and requires that valid mitigating factors be considered. See Harmelin v. Michigan, 499 U.S. -, 111 S.Ct. 2680, 2701-02, 115 L.Ed.2d 836 (1991). Constitutional errors can skew this required balancing to an extent that a “colorable showing” can be made that a defendant would not have received the death penalty despite the underlying presence of a valid aggravating circumstance.
We do not ignore the discretion accorded the sentencing authority in weighing aggravating and mitigating circumstances.
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In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), we granted Deutscher’s petition for writ of habeas corpus because he was represented by constitutionally deficient counsel at sentencing and was prejudiced by his counsel’s failure to present mitigating evidence and to challenge an unconstitutional aggravating factor. By order of the United States Supreme Court, we review this ruling in light of McCleskey v. Zant, 499 U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and Lewis v. Jeffers, 497 U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990).
The government sufficiently pleaded abuse of the writ. McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. We determine whether Deutscher is excused from this default by the same standard used to determine whether to excuse state procedural defaults. Id. 111 S.Ct. at 1468.
Deutscher is unable to establish cause for his failure to raise either the ineffective assistance of counsel or the invalid aggravating circumstance claim in his previous petition. Ineffective assistance of counsel establishes cause for default only if the Sixth Amendment guarantees a right to counsel at the proceeding in which the default occurred. Coleman v. Thompson, 499 U.S. -, -, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991). Deutscher did not have a constitutional right to counsel in his first habeas appeal. His failure to raise valid constitutional claims in the original habeas appeal is attributable to the continued deficient representation of his counsel, but that does not establish cause for his default. Id.
Although Deutscher has not shown cause for his default, we retain authority to issue the writ if the petition “implicat[es] a fundamental miscarriage of justice.” McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. Where a constitutional violation has more probably than not resulted in a capital sentence for one who should not have been sentenced to death, issuance of the writ is necessary to ensure that a fundamental miscarriage of justice does not occur. See Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Smith v. Murray, 477 U.S. 527, 537-39, 106 S.Ct. 2661, 2667-69, 91 L.Ed.2d 434 (1986); Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1990).
The Supreme Court has not defined the standard by which the “fundamental miscarriage of justice” exception applies to the sentencing phase of a capital case. Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6. The Eighth and Eleventh Circuits have addressed the issue and reached different conclusions. In the Eighth Circuit, the exception applies to the penalty phase of a capital case “ ‘if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.’ ” Stokes, 893 F.2d 152, 156 (8th Cir.1990) (quoting Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989). The Eleventh Circuit has adopted a more restrictive approach:
The sentenced defendant must demonstrate not merely that the error affected the sentencing outcome, but that the error resulted in a sentencing outcome for which the defendant is not eligible by virtue of his conduct.... That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the [1445]*1445petitioner was ineligible for the death penalty.
Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir.1991) (en banc).
Fundamental fairness, the hallmark of our Constitution, compels us to follow the standard recognized by the Eighth Circuit. The approach adopted by the Eleventh Circuit fails to fulfill the stated purpose of the fundamental miscarriage of justice exception. We recognize that the Constitution does not require that the trial in a capital case be perfect. But in a civilized society, we cannot ignore constitutional violations that have so infected a capital case that an individual has been sentenced to die who, but for constitutional errors during sentencing, would likely not be put to death. The Eleventh Circuit requires not only that a defendant would not have been sentenced to death; it requires that the defendant could not have been sentenced to death. This approach offends the Constitution and fails to comport with Supreme Court precedent.
The death penalty escapes condemnation as cruel and unusual punishment only if its imposition is “at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 465 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). The requirements of consistent application and fairness to the accused necessitate that a sentence of death be based on an informed and accurate decision. See Johnson v. Mississippi, 486 U.S. 578, 584, 108 S.Ct. 1981, 1986, 100 L.Ed.2d 575 (1988) (“The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special ‘need for reliability in the determination that death is the appropriate punishment’ in any capital case.” (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (White, J., concurring in judgment)). Thus, in determining whether the fundamental miscarriage of justice exception applied in Smith v. Murray, the Supreme Court considered whether the defendant presented a “substantial claim that [constitutional] error undermined the accuracy of the ... sentencing determination.” 477 U.S. at 539, 106 S.Ct. at 2668. It is not enough that an error “is by its nature the kind of error that might have affected the accuracy of a death sentence.” Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6 (emphasis added). Rather, the defendant must make a “colorable showing” that constitutional error, in fact, undermined the accuracy of the sentence. Smith, 477 U.S. at 538-39, 106 S.Ct. at 2668-69. Whether such a showing has been made “must be determined by reference to all probative evidence.” Kuhlmann v. Wilson, 477 U.S. 436, 454-55 n. 17, 106 S.Ct. 2616, 2627-28 n. 17, 91 L.Ed.2d 364 (1986) (emphasis in original).
Nevada law requires jurors to weigh mitigating and aggravating circumstances in determining whether a death sentence is warranted. The existence of a valid aggravating circumstance, standing alone, does not mandate death. It is the presence of a valid aggravating circumstance that invokes the “individualized capital sentencing doctrine” and requires that valid mitigating factors be considered. See Harmelin v. Michigan, 499 U.S. -, 111 S.Ct. 2680, 2701-02, 115 L.Ed.2d 836 (1991). Constitutional errors can skew this required balancing to an extent that a “colorable showing” can be made that a defendant would not have received the death penalty despite the underlying presence of a valid aggravating circumstance.
We do not ignore the discretion accorded the sentencing authority in weighing aggravating and mitigating circumstances. However, if, as a consequence of constitutional error, (1) the sentencing body never considered evidence critical to the exercise of its discretion and (2) it is more probable than not that the death penalty would not have been imposed had the evidence been considered, the writ must issue. To allow such a sentence to stand would violate the precepts of the Eighth and Fourteenth Amendments and belie principles of fundamental fairness.
Efforts to eliminate abuse of the writ are long overdue. But three factors must be [1446]*1446foremost in our review. First, the “abuse of the writ” is a federal procedural doctrine based on principles of equity. McCleskey, 499 U.S. at -, 111 S.Ct. at 1468-69. Second, this is a death sentence:
“The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”
Harmelin v. Michigan, 499 U.S. at -, 111 S.Ct. at 2702 (1991) (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring)). Third, though resentencing implicates concerns of finality, judicial economy, and comity, a resentencing proceeding is a far less onerous task than a retrial. Fundamental fairness requires that the equitable doctrine of abuse of the writ yield when constitutional errors at sentencing undermine the propriety of a death sentence.
To establish a fundamental miscarriage of justice at sentencing, a defendant must establish that constitutional error substantially undermined the accuracy of the capital sentencing determination. See Smith v. Murray, 477 U.S. 527, 538-39, 106 S.Ct. 2661, 2668-69, 91 L.Ed.2d 434 (1986). This requires a showing that constitutional error infected the sentencing process to such a degree that it is more probable than not that, but for constitutional error, the sentence of death would not have been imposed.
Because Deutscher’s counsel was constitutionally deficient, no mitigating evidence was presented at sentencing. Had Deutscher been competently represented, the sentencing jury would have considered mental health records of Deutscher showing diagnoses of scizophrenia, pathological intoxication, and organic brain damage, commitments to mental institutions, and a history of good behavior in institutional settings. The records would also have shown that Deutscher had asked for, but had not received, treatment for episodes of uncontrollable violence. Deutscher’s family would have testified that Deutscher suffered fetal injury and was born prematurely due to a beating his mother received from his father, that Deutscher’s father beat and occasionally seriously injured Deutscher, and that Deutscher was often beaten while trying to protect his mother and sisters. Dr. O’Gorman, an experienced psychiatrist who examined Deutscher in 1977, would have testified that premature children, such as Deutscher, can develop a mental disorder characterized by episodes of uncontrollable violence often accompanied by a temporary loss of memory and that Deutscher’s story was consistent with the symptoms of this disorder.
The Supreme Court has repeatedly stated that the Constitution prohibits imposition of the death penalty without adequate consideration of factors that might evoke mercy. See, e.g., California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987); Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347 (1987); Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982). In this case, no mitigating evidence was provided to the jurors even though the available mitigating evidence suggests that Deutscher suffers from a congenital mental illness that responds well to institutional treatment. Responsibility for the failure to present this evidence to the jury is imputed to the State through the ineffective assistance of Deutscher’s Sixth Amendment counsel. Coleman, 499 U.S. at -, 111 S.Ct. at 2567.
Counsel’s failure to present mitigating evidence was compounded by his failure to challenge the “depravity of mind” aggravating factor applied at Deutscher’s sentencing. The definition of depravity of mind given at Deutscher’s sentencing did not restrain arbitrary imposition of the death penalty. See Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). The depravity instruction, although it contained more words, suffered some of the defects of the “especially [1447]*1447heinous, atrocious, or cruel” instruction rejected in Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372 (1988), and the “outrageously or wantonly vile, horrible or inhuman” rejected in Godfrey. It failed to include objective indicia analogous to the instructions approved in Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). The depravity of mind instruction was unconstitutionally vague as applied to Deutscher. Nothing in Lewis v. Jeffers, 497 U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), leads to a contrary conclusion.
Judge Hall argues in dissent that the fact that “one of the three aggravating factors found by the jury was unconstitutionally vague does nothing to undermine the jury’s finding that two other aggravating circumstances were applicable to Deutscher.” Infra at 1449-1450. It is the compounding of constitutional errors at Deutscher’s sentencing, however, that infected the sentencing process to such a degree that the risk of Deutscher being wrongly put to death requires issuance of the writ in order to prevent a fundamental miscarriage of justice. Nevada law requires the jury to balance mitigating and aggravating circumstances in determining whether a death sentence is warranted. The jury cannot fulfill this responsibility when a proper mitigating factor is not considered and an improper aggravating factor is considered. A new balancing between mitigating and aggravating factors is necessary. See Creech v. Arave, 928 F.2d 1481, 1492-93 (9th Cir.1991).
In directing that abuse of the writ be governed by the procedural default standard, the Supreme Court did not intend to turn death penalty cases into a deadly game of procedures. The McCleskey standard recognizes the need to prevent wasteful, repetitive habeas petitions designed only to delay. However, a civilized society cannot take the life of a defendant who presents a valid claim that his death sentence was entered in a proceeding that precluded a proper, informed exercise of discretion. Unlike the violation in McCles-key,1 the failings that Deutscher asks us to consider go directly to the propriety of his death sentence. The Constitution will not permit Deutscher’s life to be taken on the basis of a sentencing proceeding in which constitutionally inadequate counsel failed to present available mitigating evidence and did not challenge a constitutionally infirm aggravating factor. These errors so undermine the foundation for Deutscher’s death sentence that the cornerstone principles of Eighth Amendment jurisprudence require that the sentence be set aside.
We remand to the district court for entry of an order granting the writ of habeas corpus unless the state resentences Deutscher within a reasonable time.
REVERSED and REMANDED.