William Neal Moore v. Walter Zant

885 F.2d 1497

Opinions

COX, Circuit Judge:

This case originated in this court as an appeal from a federal district court’s dismissal of petitioner Moore’s second application for federal habeas corpus relief as an abuse of the writ within the meaning of Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 cases. This court, sitting en banc, ultimately reversed in part the district court’s finding of abuse, and remanded the case in part. Moore v. Kemp, 824 F.2d 847 (11th Cir.1987). Subsequently, the State filed a petition for a writ of certiorari with the Supreme Court. Following oral argument, this court’s en banc opinion was vacated and the case was remanded “for further consideration in light of Teague v. Lane, 489 U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).” Zant v. Moore, 489 U.S. -, 109 S.Ct. 1518, 103 L.Ed.2d 922 (1989). We affirm the district court’s decision.

I.

A. Procedural History

Petitioner, William Neal Moore, murdered Fredger Stapleton in Stapleton’s home during the course of an armed robbery on April 2,1974.¹ Moore was indicted on May 13, 1974, by a grand jury in Jefferson County, Georgia, for the murder and robbery of Stapleton. On June 4, 1974, Moore was arraigned in the Superior Court of Jefferson County, waived a trial by jury with respect to both charges, and pled guilty to the charges. Because the State sought the death penalty on the malice murder charge, Moore was entitled, under Georgia law, to have a jury determine whether that penalty, or a sentence of life imprisonment, should be imposed. Moore waived his right to a jury determination, electing, instead, to be sentenced by the court.

On July 17, 1974, the court conducted a bench trial on the penalty issue. After considering the evidence adduced by the prosecution and the defense, including a presentence investigation report which had been prepared by the court’s probation officer and introduced into evidence by the prosecutor without objection, the court found that Moore had committed the Sta-pleton murder during the course of an armed robbery, an aggravating circumstance that rendered Moore subject to the death penalty. See Ga.Code Ann. § 27-2534.1(b)(2) (Harrison 1978) (current version at Ga.Code Ann. § 17-10-30(b)(1) (1982)). Thereafter, the court sentenced Moore to death.

Moore’s conviction and sentence were affirmed by the Supreme Court of Georgia on direct appeal. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975) (per curiam), and the Supreme Court subsequently denied Moore’s petition for a writ of certiorari. Moore v. Georgia, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976). Following the denial of certiorari, Moore petitioned the Superior Court of Jefferson County for a new sentencing proceeding. The court denied his motion, and the Supreme Court of Georgia affirmed. See Moore v. State, 239 Ga. 67, 235 S.E.2d 519 (1977). A petition for a writ of certiorari was denied by the Supreme Court in Moore v. Georgia, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977).

After exhausting all avenues for direct review of his conviction and sentence, Moore initiated collateral proceedings for relief. In early 1978, Moore petitioned the Superior Court of Tattnall County, Georgia, for a writ of habeas corpus, presenting six grounds for relief. Relevant to this appeal was the inclusion of a claim based upon an alleged violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) — that neither Moore nor his attorney was afforded adequate opportunity to review the presentence investigation report prior to the sentencing proceeding. Following an evidentiary hearing, the court rejected his petition, including his Gardner claim, and the Supreme Court of Georgia refused to grant him a certificate of probable cause to appeal.

In November 1978, Moore, represented by James C. Bonner, Jr., filed his first federal petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia, asserting four of the six claims he had presented in his state habeas petition; one of the claims omitted was his Gardner claim. On March 6, 1979, while the petition was pending in the district court, Moore filed a pro se motion to amend his petition to add an ineffective assistance of trial counsel claim.

Thereafter, Bonner, who had represented Moore during the state habeas proceedings, requested and received leave to withdraw as counsel, and the district court appointed H. Diana Hicks as substitute counsel. Hicks immediately moved for leave to amend Moore’s petition to present his Gardner claim. In April 1981, the district court denied both the pro se and Hicks motions for leave to amend, see Blake v. Zant, 513 F.Supp. 772, 804-06 (S.D.Ga.1981), granted the writ as to Moore’s sentence on the basis that “the penalty of death is cruel and unusual as applied to him in light of the circumstances of the crime and other relevant factors,” id. at 803, and denied relief on all of Moore’s remaining claims.

The State appealed the district court’s judgment granting the writ as to Moore’s sentence; Moore cross-appealed, challenging the district court’s rulings on the claims that the district court had rejected and the court’s refusal to allow him to amend his petition. A panel of this court reversed the district court’s grant of relief and affirmed the court’s rejection of his remaining challenges to his guilty pleas and death sentence. Moore v. Balkcom, 716 F.2d 1511, 1518-19, 1527 (11th Cir.1983) (on rehear ing). The panel also concluded that the district court did not abuse its discretion in refusing to grant Moore leave to amend his petition. Id. The Supreme Court subsequently denied Moore’s petition for a writ of certiorari. Moore v. Balkcom, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

Moore thereafter returned to state court for relief, seeking a writ of habeas corpus from the Superior Court of Butts County, Georgia, on the following grounds: (1) the State violated Moore’s Fifth, Sixth, and Fourteenth amendment rights when it failed to advise Moore of his right to remain silent and of his right to counsel prior to or during a presentence interview that was conducted by a probation officer after conviction and before sentencing (a claim based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)); (2) the State denied Moore the right to confront and cross-examine witnesses whose hearsay testimony was contained in the presentence investigation report (a claim based on Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (11th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983)); (3) Moore received ineffective assistance of trial counsel at the sentencing phase of his case; and (4) the death penalty in Georgia was being administered in a racially discriminatory manner.² The superior court rejected each of these claims without an evidentiary hearing. The court concluded that the ineffective assistance of counsel claim had been litigated fully in Moore’s first state habeas proceeding and Moore had offered no reason why it should be relitigated, and Moore had waived his remaining claims by failing to raise them during that initial state proceeding. See Ga.Code Ann. § 9-14-51 (1982). In March 1984, the Supreme Court of Georgia denied Moore’s application for a certificate of probable cause to appeal.

Moore then filed his second federal habe-as petition, presenting the seven claims he had asserted in his second state habeas petition. Moore alleged that the claims were based on either newly discovered facts (the racially discriminatory application of the death penalty claim) or novel legal principles (all remaining claims) that were not “reasonably available” when he filed his first federal habeas petition. Moore also presented his Gardner claim, which he had attempted to raise in his first federal proceeding in a motion for leave to amend his petition and which he had failed to raise in his second state habeas petition.

In May 1984, the district court dismissed Moore’s petition and denied a certificate of probable cause to appeal. With respect to all except one of the claims presented,³ the court concluded that the delayed presentation of Moore’s claims constituted an abuse of the writ under Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 Cases; the court found that the claims were based neither on newly discovered facts nor on newly established constitutional principles, and that Moore offered no lawful reason why he should not have asserted them in his previous petition. Adopting the district court’s opinion in full, a divided panel of this court affirmed the decision. Moore v. Zant, 734 F.2d 585 (11th Cir.1984) (per cu-riam).

On Moore’s petition for rehearing, this court, sitting en banc, considered whether Moore’s failure to present in his first federal habeas petition five of the claims presented in the second habeas petition— the Estelle, Proffitt, and Gardner claims, the claim that the death penalty was applied in a racially discriminatory manner, and the ineffective assistance of counsel claim — constituted an abuse of the writ justifying summary dismissal.⁴ A majority of the court was of the opinion that Moore did not abuse the writ by failing to assert his Estelle and Proffitt claims in his first federal habeas petition since he did not intentionally withhold those claims, and neither he nor his counsel reasonably could have anticipated the decisions on which those claims were based. Moore v. Kemp, 824 F.2d 847, 850-54 (11th Cir.1987) (7-5 decision). The majority also concluded that the district court, on remand, should “give fresh consideration to whether the ends of justice require it to consider the merits of Moore’s Gardner claim.” Id. at 857. Finally, the court unanimously affirmed the district court’s dismissal of the two remaining claims as an abuse of the writ. Id. at 857, 858, 877.

The State subsequently sought Supreme Court review of this court’s en banc decision. Certiorari was granted to consider two questions presented by the State, each of which relates to the abuse of the writ doctrine.⁵ Instead of addressing the questions presented by the State, the Supreme Court vacated this court’s judgment and remanded the case “for further consideration in light of Teague v. Lane, 489 U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).” Zant v. Moore, 489 U.S. -, 109 S.Ct. 1518, 103 L.Ed.2d 922 (1989).⁶

B. Scope of Review on Remand

Contested on this remand is, inter alia, the extent to which the Supreme Court’s remand order limits the issues which this court may consider and resolve. At oral argument, Moore strenuously asserted that by vacating this court’s earlier en banc opinion and remanding this case expressly “for further consideration in light of Teague v. Lane,” the Supreme Court did not permit reconsideration of the abuse of the writ issues. Instead, he submits, the evident purpose of the remand order is to direct this court to consider whether the general rule prohibiting the retroactive application of “new” constitutional principles to cases pending on collateral review at the time those constitutional principles are announced should be applied to bar consideration of the merits of those claims which this court, in its earlier en banc decision, determined not to be abusive.⁷ Although he cites no authority in support of the notion that the remand order was thus limiting, Moore emphasizes that the Court did not explicitly solicit further consideration of the specific issues presented before the prior en banc court. The State, in contrast, maintains that the Supreme Court, by issuing the remand order, did not intend to preclude this court from considering all of the issues in the case, including retroactivity, if appropriate, and abuse of writ.⁸ By directing “further consideration in light of Teague,” the State asserts, the Supreme Court was providing this court with guidance as to what constitutes “new law,” such guidance not having been available at the time of this court’s earlier en banc decision.

For reasons more elementary and compelling than those offered by the parties, we conclude that the Supreme Court’s remand order does not preclude our revisitation of the abuse of the writ issues. Inherent in Moore’s argument against reconsideration of those issues is the assumption that the Supreme Court’s remand order constitutes an implicit approval of this court’s earlier en banc disposition of those issues. We reject the basic premise of Moore’s argument. Although the Supreme Court granted certiorari in this case, it vacated our earlier en banc decision, leaving in existence no appellate level disposition of the abuse of the writ issues, offered no comment on the correctness of that earlier decision, and remanded the case to this court with the general instruction that we further consider the case in light of Teag-ue. We conclude that a reconsideration of the abuse of the writ issues is permitted by the Supreme Court’s remand order.

II.

Initially, we should decide whether Moore abused the writ by raising in his second federal habeas petition certain claims which he failed to present in his first federal petition. As noted, supra note 7, on remand Moore presents five additional issues for our consideration, each of which relates to the Teague decision. Because of our disposition of the abuse of the writ issues, we find it unnecessary to address those additional issues.⁹

A. Claims Presented

Moore contends that the district court abused its discretion in dismissing, as an abuse of the writ, his Estelle, Proffitt, and Gardner claims. The State argues, as it did before the district court, that Moore’s failure to assert in his first federal petition those claims which are now before us was inexcusable and, therefore, constituted an abuse of the writ. The State notes that Moore has been represented by counsel throughout all stages of his collateral proceedings, that there are no newly discovered facts in Moore’s case — the facts now being offered in support of his “new” claims having been well known at the time he filed his first federal petition — and that the federal constitutional implications of those facts, now being asserted by Moore, were plainly discernable from relevant case law that was in existence at that time. With respect to the Estelle and Proffitt claims, the State contends that Moore, who was represented by counsel at all times relevant to this appeal, is chargeable with the knowledge — actual and constructive— that counsel possessed at the time Moore filed his first habeas petition, and that counsel, at that time, reasonably should have anticipated those claims. Moore neither disputes that he has been represented by counsel at all stages during his direct and collateral proceedings, nor asserts that he is attempting to rely on newly discovered facts. His disagreement with the State and the district court, at least with respect to his Estelle and Proffitt claims, concerns the legal significance of the facts. Specifically, Moore contends that his claims are based on new principles of constitutional law which were not recognized until after Moore filed his first federal habeas petition; because those principles were established after Moore filed his first petition, he cannot be said to have intentionally abandoned, intentionally withheld, or inexcusably neglected to have asserted those claims in his petition. Instead, Moore submits, the change in the law constitutes a legal excuse justifying the delayed assertion of his claims.

With respect to his third claim — that which is based on Gardner v. Florida — Moore acknowledges that the claim is not based on newly discovered facts or new principles of federal constitutional law. He does maintain, however, that he did not deliberately withhold this claim from his first federal petition (as evidenced by his attempt to amend that petition to include this claim), and therefore, did not abuse the writ with respect to this claim. Alternatively, he asserts that notwithstanding, his failure to include this claim in his earlier petition, the “ends of justice” require an evaluation of the claim on the merits.

As to each of the claims presented by Moore, we must review the district court’s decision for an abuse of discretion. Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1079, 10 L.Ed.2d 148 (1963); Darden v. Dugger, 825 F.2d 287, 292 (11th Cir.1987). After outlining the basic principles governing the abuse of the writ analysis, we shall address each of Moore’s claims in turn.

B. Abuse of the Writ Doctrine

According to Rule 9(b) of the Rules Governing Section 2254 Cases, a federal court may dismiss a second or subsequent petition for federal habeas corpus relief if it finds that the petition “fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, [it] finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” 28 U.S.C. foll. § 2254 Rule 9(b) (1982). This rule is stated in slightly different terms in section 2244, 28 U.S.C. (1982), which provides that a court may dismiss a petition summarily unless the petition “alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.” A principal reason underlying these rules is to promote the finality of criminal proceedings by requiring petitioners to include all of their claims in a single habeas petition in the federal district court. See Kuhlmann v. Wilson, 477 U.S. 436, 451-52, 106 S.Ct. 2616, 2624-26, 91 L.Ed.2d 364 (1986) (plurality opinion). For purposes of this opinion, we must distinguish between the two classes of claims those rules describe: the first consists of “successive” claims — those which were raised and considered on their merits in an earlier federal habeas petition — and the second consists of “new” claims — those which are being raised for the first time in the subsequent petition.¹⁰ Presently, we are concerned only with claims that are included in the latter category.

In evaluating “new” claims to determine whether they should be entertained on their merits, a district court may conclude that the delayed presentation of those claims constitutes an abuse of the writ by finding that either petitioner or his counsel intentionally withheld or intentionally abandoned the claims on the earlier petition, or inexcusably neglected to include those claims in the earlier petition. See Woodard v. Hutchins, 464 U.S. 377, 379 & n. 3, 104 S.Ct. 752, 753 & n. 3, 78 L.Ed.2d 541 (1984) (Powell, J., concurring, joined by four other justices); Demps v. Dugger, 874 F.2d 1385 (11th Cir.1989); Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 470 U.S. 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985); Stephens v. Kemp, 721 F.2d 1300, 1303 (11th Cir.1983); Potts v. Zant, 638 F.2d 727, 740-41 (5th Cir. Unit B), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981); see also Funchess v. Wainwright, 788 F.2d 1443, 1445 (11th Cir.1986) (per curiam); Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir. Unit A 1980); Paprskar v. Estelle, 612 F.2d 1003 (5th Cir.1980), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980). An abuse might not be found where the district court finds that a petitioner was unaware, at the time he filed his first petition, of the specific legal or factual grounds supporting his “new” claim, see Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); cf. Demps, 874 F.2d at 1392 (abuse can occur where petitioner deliberately refrains from asserting one of two grounds for relief in the first petition in an effort to secure two hearings instead of one) (citing Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); Jones v. Estelle, 722 F.2d 159, 163-64 (5th Cir.1983) (en banc) (citing Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924)), or that the law has changed since the earlier petition, Sanders, 373 U.S. at 17, 83 S.Ct. at 1078; Tucker v. Kemp, 818 F.2d 749, 752 (11th Cir.1987); see Demps, 874 F.2d at 1392. In some instances, however, an abuse might be found even if the law has changed since the earlier petition. See, e.g., McCorquodale v. Kemp, 832 F.2d 543, 544 (11th Cir.1987); Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 (11th Cir.), cert. denied, 477 U.S. 910, 106 S.Ct. 3289, 91 L.Ed.2d 576 (1986). Cf. Coleman v. Saffle, 869 F.2d 1377, 1381 (10th Cir.1989). Our task in this case is definitively to decide the standard by which courts of this circuit henceforth will judge the abusive nature of petitions alleging “new law” claims.

Once the abuse of the writ issue has been raised, the petitioner has the burden of answering that allegation by proving, by a preponderance of the evidence, that he has not abused the writ. Sanders, 373 U.S. at 10-11, 83 S.Ct. at 1074-75; Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948); see also Funchess, 788 F.2d at 1445; Jones, 722 F.2d at 164. Hence, once the state contends that the petitioner’s delayed presentation of his claim constitutes an abuse of the writ, the petitioner has the burden of satisfying the district court that the delay is excusable. As noted, determining the sufficiency of the petitioner’s explanation is a matter committed to the sound discretion of the habeas judge. Sanders, 373 U.S. at 18, 83 S.Ct. at 1079; Darden, 825 F.2d at 292.

Notably, there are two exceptions to the application of the foregoing principles. First, the abuse of the writ analysis may be circumvented altogether if the district judge finds, judging strictly from the records and pleadings, that the “new” or potentially abusive claims are conclusively without merit. Sanders, 373 U.S. at 15, 83 S.Ct. at 1077; see also Stephens, 721 F.2d at 1303. Second, notwithstanding a petitioner’s abusive conduct in failing to present a claim in a prior federal habeas petition, the claim may be adjudicated on its merits if the “ends of justice” so require. Sanders, 373 U.S. at 18-19, 83 S.Ct. at 1079; see also Demps, 874 F.2d at 1392; Ritter v. Thigpen, 828 F.2d 662, 666 (11th Cir.1987); Mulligan v. Kemp, 818 F.2d 746, 747 (11th Cir.1987).

C. “New Law” Exception to the Abuse of the Writ Doctrine

As noted, a change in the law which occurs between the filing of a petitioner’s first and subsequent federal habe-as petitions may excuse a petitioner’s failure to assert in his first petition a claim that is based on that change. Sanders, 373 U.S. at 17, 83 S.Ct. at 1078; Tucker, 818 F.2d at 752; see Demps, 874 F.2d at 1392. This court previously has intimated, in dicta, that determination of whether the change is sufficient to excuse the omission of the claim is an objective inquiry, which seeks to ascertain whether petitioner or his counsel reasonably should have known about the claim at the time the earlier habeas petition was filed. See, e.g., McCorquodale v. Kemp, 832 F.2d 543, 544 (11th Cir.1987) (indicating a “new law” claim is one that is based on legal principles “not reasonably known” until after the first federal habeas petition); Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 (11th Cir.), cert. denied, 477 U.S. 910, 106 S.Ct. 3289, 91 L.Ed.2d 576 (1986) (petitioner had reasonable basis upon which to fashion a claim). In this case, the State’s arguments assume that this standard applies. Moore, on the other hand, argues implicitly that the determination is strictly subjective. Today, we expressly adopt the objective standard as the governing standard.¹¹

As with the general rules governing the disposition of subsequent habeas petitions, the standard that is applied to determine whether a change in the law is sufficient to excuse the omission of a claim from an earlier petition must accommodate two competing, though compelling, interests: society’s interest in securing finality to judgments, and a petitioner’s interest in securing a full and fair opportunity to vindicate his constitutional rights. See generally Kuhlmann, 477 U.S. at 451-52, 106 S.Ct. at 2625-26. If the standard were purely subjective, depending on a petitioner’s actual knowledge of the claim at the time of filing of the earlier petition, the “new law” exception would swallow the abuse rules, and society’s interest in finality would be seriously undermined.

An objective standard that seeks to ascertain if reasonably competent counsel, at the time of filing of the first petition, reasonably should have anticipated a later change in the law, however, would better accommodate the principles of finality and fairness than the subjective standard. The objective standard would promote certainty in the law and uniformity of results from case-to-case, by making characterization of the change in the law depend on the objective unforeseeability of the change and by saddling petitioners with the burden or the benefit of what the “reasonably competent attorney” could anticipate. In cases involving “clear breaks with past precedent,” ¹² or a deliberate breaking of new constitutional ground, a petitioner's failure to include such a claim in an initial federal petition always would be excused under this standard. That is so because such changes, by definition, are virtually unforeseeable, and reasonably competent counsel, therefore, cannot be said to have reasonably anticipated such changes. See also Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984) (a rule requiring petitioners to raise a truly novel issue is not likely to serve any functional purpose). The more difficult, and typical, cases involve changes that are much less marked. The objective “new law” inquiry is intended to facilitate the analysis of claims that are based on those changes.

We recognize, therefore, that the purely objective standard is the one that should control disposition of “new law” abuse of the writ claims. In so doing, we make a few observations. As noted, the rule generally represents an equitable accommodation of two competing, paramount interests: society’s interest in finality of judgments and a petitioner’s interest in securing a full and fair opportunity to vindicate his constitutional rights. Consistent with these general equitable principles is another notion: it is not unreasonable or manifestly inequitable to charge a petitioner with the knowledge of a reasonably competent attorney or, if his attorney fails to anticipate a change which reasonably competent counsel reasonably could have anticipated, to charge him with his attorney’s mistakes. If it is appropriate to charge litigants with their attorneys’ mistakes in situations in which litigants have a Sixth Amendment right to effective assistance of counsel, it certainly is reasonable to charge litigants with their attorneys’ mistakes in situations in which no entitlement to effective assistance of counsel exists. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (citing Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969)) (prisoners do not have a constitutional right to counsel when mounting collateral attacks to their convictions or sentences); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982) (petitioner cannot be deprived of effective assistance of counsel where he has no constitutional right to counsel); see also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (“the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default”); Smith v. Newsome, 876 F.2d 1461, 1466 (11th Cir.1989) (citing Murray, 477 U.S. at 488, 106 S.Ct. at 2645) (“We hold parties represented by counsel responsible for their mistakes.”).

The rule we adopt is analogous to the “new law” standard that, the Supreme Court has adopted and applied in the procedural default context for establishing “cause,” and which the district court in this case relied on in addressing Moore’s abuse of the writ claims. In addressing Moore’s claims, the district court specifically relied on the new law standard for establishing cause which was articulated in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).¹³ Engle, to the extent that it enumerated a general rule, indicated that petitioners might have a duty to anticipate changes in the law at the threat of having later claims based on those changes barred by principles of procedural default. The Engle standard was refined in Reed v. Ross, 468 U.S. 1, 13-16, 104 S.Ct. 2901, 2909-10, 82 L.Ed.2d 1 (1984), a case which was decided three weeks after the district court in this case announced its decision. In Reed, the Court considered whether and to what extent “the novelty of a constitutional issue at the time of a state-court proceeding could ... give rise to cause for defense counsel’s failure to raise the issue in accordance with applicable state procedures.” Reed, 468 U.S. at 13, 104 S.Ct. at 2909. After noting the inequities inherent in a broad rejection of the notion that a “new law” may provide “cause” sufficient to relieve a petitioner’s procedural default, the court concluded that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise a claim in accordance with state procedures.” Reed, 468 U.S. at 16, 104 S.Ct. at 2910 (emphasis added). The court went on to note that the question of whether an attorney has a “reasonable basis” upon which to develop a legal theory can arise in a variety of contexts, and then held that one of those contexts is where the Supreme Court “has articulated a constitutional principle that has not been previously recognized but which is held to have retroactive application.” Id. at 17, 104 S.Ct. at 2911.

Having outlined the basic rules governing the abuse of the writ analysis and determined the standard by which “new law” claims should be judged, we next must evaluate Moore’s claims in light of those rules.

D. Discussion

1. Estelle v. Smith claim.

Moore presents two “new law” claims in his current federal habeas petition. The first claim, based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), is that the state failed to inform him of his right to remain silent and of his right to consult with counsel prior to the probation officer’s presentence interview of him, in violation of the Fifth, Sixth, and Fourteenth amendments.

In Estelle v. Smith, the trial court, sua sponte, ordered that the defendant undergo a psychiatric examination to determine his competency to stand trial for a capital crime. The judge subsequently found the defendant competent and, following a trial, a jury convicted him of the capital crime. At the sentencing stage of the proceeding, the state offered the testimony of the court-appointed psychiatrist, who had interviewed the defendant solely for competency purposes, to prove the defendant’s future dangerousness, a condition precedent to the imposition of the death penalty. Basing his testimony on his competency examination of the defendant, the psychiatrist testified that he believed the defendant always would be dangerous. Relying on this testimony, the jury imposed the death penalty. See Estelle v. Smith, 451 U.S. at 456-60, 101 S.Ct. at 1870-71.

Affirming a unanimous panel of the former Fifth Circuit, the Supreme Court concluded that the State’s use of the psychiatrist’s testimony had violated the defendant’s Fifth, Sixth, and Fourteenth amendment rights. Analogizing the psychiatric examination to the custodial interrogation in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that the defendant should have received a Miranda warning prior to the interview. See Estelle, 451 U.S. at 466-69, 101 S.Ct. at 1875-76. Moreover, the Court unanimously concluded that under the Sixth and Fourteenth amendments, the psychiatric examination was a critical stage of the criminal proceedings; accordingly, the State should have forewarned the defendant’s attorney that the results of the competency examination could be used for reasons other than to determine the defendant’s competency to stand trial. Because the defendant’s attorney had not been so informed, the State had denied the defendant his right to consult with counsel during a critical stage of the proceedings. See id. at 469-72, 101 S.Ct. at 1876-77.

The State’s primary contention with respect to his claim is that Moore’s counsel, in 1978 (when Moore’s first federal habeas petition was filed), reasonably should have anticipated the holding in Estelle (i.e., the application of the Miranda protections to capital sentencing proceedings). In support of its position that counsel should have anticipated the Estelle holding, the State refers to Battie v. Estelle, 655 F.2d 692 (5th Cir.1981), in which the former Fifth Circuit held, for purposes of retroactivity, that Estelle did not constitute a new constitutional principle and, therefore, was to be applied retroactively to cases pending collateral review at the time Estelle was announced. The State’s reference to Battie is specifically intended to support the argument that Estelle did not represent a clear break with past precedent — a condition that almost always would excuse a petitioner’s failure to raise a claim in an earlier petition — but was a natural and foreseeable extension of existing constitutional principles into a new factual context. The State’s argument seeks to charge Moore with a duty to anticipate that extension and to characterize that claim as having been “reasonably available" to Moore’s counsel at the time Moore filed his first federal habeas petition.

Moore, in contrast, asserts that Estelle is “new law” for purposes of the abuse of the writ analysis. Moore’s position is, therefore, fundamentally at odds with the State’s position regarding the standard governing “new law” claims. Moore insists that this court must evaluate his “knowledge” of a potential Estelle claim at the time of filing of his first federal petition. The court, he maintains, must ascertain whether he intentionally or deliberately refrained from presenting the Estelle claim in his first petition (i.e., did he have knowledge of a potential Estelle claim yet refrain from presenting the claim until it was explicitly available?). Moore’s proposed inquiry essentially is subjective, with the “newness” of a constitutional claim depending not on the objective foreseeability of a “change” in the law, but, instead, depending on the foreseeability of the claim to a particular petitioner.¹⁴ In support of his position, Moore asserts that the equitable considerations inherent in Rule 9(b) of the Rules Governing Section 2254 Cases disallow a bar of this claim by the abuse of the writ doctrine.

As noted, in analyzing Moore’s claims for an abuse of the writ, the district court analogized the “new law” standard articulated in Engle for establishing “cause” sufficient to excuse a petitioner’s procedural default. The court concluded that Moore was under a duty to raise in his first habe-as petition constitutional claims, based on intervening changes in the law, which could have been anticipated by Moore’s counsel. Because, according to the court, Estelle could have been anticipated by Moore’s counsel, Moore’s omission of the Estelle claim from his earlier petition was inexcusable.

Applying to the facts of this case the “new law” standard we have articulated for analyzing potentially abusive claims, it is evident that the district court did not abuse its discretion in concluding that Moore’s failure to raise the Estelle claim in his first federal habeas petition constituted an abuse of the writ. Estelle is significant to Moore’s case not simply because it extended the Fifth and Sixth amendment rights recognized in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to interrogations conducted by court-appointed psychiatrists; instead, it is significant because it recognized the applicability of the protections described in Miranda to the sentencing phase of capital proceedings. Our inquiry seeks not to determine whether, in 1978, reasonably competent counsel reasonably could have anticipated the application of Miranda protections to interrogations conducted by probation officers. Instead, the “new law” inquiry, described above, seeks to determine whether, in November, 1978 — the time of filing of Moore’s first federal habeas petition — reasonably competent counsel reasonably could have anticipated the eventual application of Miranda to the sentencing phase of Georgia’s bifurcated capital proceedings. Relevant to that determination is the status of Georgia’s capital punishment scheme in 1978, the adversarial nature of the sentencing phase of the capital scheme, and the extent to which constitutional protections other than those recognized in Miranda had been recognized and applied to capital sentencing proceedings. Hence, we must determine whether reasonably competent counsel, searching the legal horizon in 1978, could have been expected to argue in favor of the application of Miranda to the sentencing proceedings in this case.

In 1972 and pursuant to the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which held unconstitutional Georgia’s death penalty statute, the Georgia legislature enacted new legislation governing capital trial proceedings. The new law, which was held constitutional by the Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), provided for bifurcated capital proceedings, with the stages being devoted to guilt determination and to sentencing, respectively. Each stage clearly was intended to be adversarial.¹⁵

It was not immediately obvious following the Supreme Court’s Gregg decision that the full panoply of constitutional protections normally accorded to a defendant’s merits trial would be applied to capital sentencing phases in general or to Georgia’s in particular. By 1977, however, the Supreme Court had recognized that some of those protections would apply. For example, the Court, in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), recognized the applicability of certain Eighth and Fourteenth amendment protections to capital sentencing proceedings, stating “the sentencing process, as well as the trial itself, must satisfy the Due Process Clause.” Gardner, 430 U.S. at 358, 97 S.Ct. at 1204.

In light of the Supreme Court’s clear recognition, by 1978, that some of the constitutional protections afforded to capital defendants during their merits trials applied as well to sentencing proceedings, a reasonably competent attorney reasonably could have anticipated the eventual application of the protections established in Miranda to capital sentencing proceedings. Moore’s failure to make an Estelle-tyge claim in his first federal habeas petition, therefore, is inexcusable.

2. Proffitt v. Wainwright claim.

In his second federal habeas petition Moore also presented for the first time in federal court a claim, based on this court’s decision in Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (11th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983), that the admission into evidence of the presentence investigation report violated his Sixth Amendment right to confront and cross-examine the witnesses whose statements the report memorialized. Applying the “new law” analysis enumerated in Section 11(c), we conclude that Moore abused the writ with respect to this claim, too.

In Proffitt, the defendant submitted to examination by two psychiatrists prior to sentencing. One of the psychiatrists subsequently was unable to attend the defendant’s sentencing hearing; hence, his views concerning the defendant’s competence and mental state were submitted solely in a written report. The defendant requested, but did not receive, an opportunity to cross-examine the psychiatrist concerning the report. Proffitt, 685 F.2d at 1250-51 & n. 36a.

The Proffitt court initially noted that the rights secured by the Sixth Amendment, including the right to cross-examine adverse witnesses, apply only to critical stages of the trial. Id. at 1252 (citations omitted). Next, acknowledging that the protections of the Sixth Amendment do not apply with full force in all sentencing proceedings, the court noted that the applicability of cross-examination rights to capital sentencing hearings “has not been specifically addressed by the Supreme Court and is an issue of first impression in this Circuit.” Id. at 1253. The court concluded that Proffitt was entitled, under the Sixth Amendment, to cross-examine the psychiatrist at his sentencing hearing. Id. at 1255.

The State asserts that the parties’ contentions with respect to this claim are essentially identical to those raised with respect to the Estelle claim. The State asserts that Moore’s counsel, in 1978, reasonably should have anticipated the holding in Proffitt (i.e., the extension of an existing constitutional principle — the right to confront witnesses — into the context of capital sentencing proceedings). The State maintains that the Proffitt holding was part of a foreseeable trend toward extending various constitutional protections to capital sentencing proceedings, and, as such, did not constitute a clear, unanticipatable break with past precedent. Because Moore’s counsel, scanning the legal horizon in 1978, reasonably could have anticipated the Proffitt holding, the State argues, Moore should be found to have been inexcusably neglectful in omitting the claim from his first federal petition. Moore, in contrast, asserts that Proffitt is “new law” for purposes of the abuse analysis precisely because he did not have knowledge of a potential Proffitt claim at the time he filed his first federal petition. Again, Moore insists that this court, in determining whether he had knowledge of a possible Proffitt claim, must ascertain whether Moore was aware of the potential claim (i.e., recognized the factual and legal underpinnings of the claim) yet deliberately refrained from presenting the claim in his first petition.

For the same reasons we concluded Moore abused the writ by failing to raise his Estelle claim in his first petition, we conclude that his failure to raise his Prof-fitt claim in that petition is inexcusable. Presaging Proffitt was a long line of cases in which Sixth Amendment protections were extended in a variety of circumstances and another line which addressed the special safeguards that are constitutionally mandated in capital proceedings. For example, in 1965, the Supreme Court held, in two separate cases, that the Sixth Amendment provides defendants with the right to cross-examine adverse witnesses in state criminal proceedings. See Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Moreover, the Court repeatedly has recognized that the right to cross-examine adverse witnesses, like the right to counsel, is a fundamental requirement for a fair trial and for ensuring due process of law. See Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Pointer, 380 U.S. at 405, 85 S.Ct. at 1068; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948).

As this court recognized in Proffitt, the right to cross-examination applies only to “critical stages of the trial.” Proffitt, 685 F.2d at 1252. During the 1960s and 1970s, the extent to which various phases of the criminal process, including sentencing proceedings, constituted “critical stages” for purposes of the Sixth Amendment was unsettled. See, e.g., United States v. Fatico, 579 F.2d 707, 713-14 (2d Cir.1978). The clear trend, however, was toward expanding the full panoply of Sixth Amendment protections, including confrontation rights, into new contexts. See, e.g., Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967) (recognizing the Sixth Amendment right to counsel during a sentencing and probation revocation hearing); see also Taparauskas, An Argument for Confrontation at Sentencing: Bringing the Offender into the Sentencing Process, 8 Cumb.L.Rev. 403, 426-40 (1977) (discussing trend toward expanded confrontation right). In light of that trend, we conclude that, in 1978, reasonably competent counsel reasonably could have anticipated the extension of Sixth Amendment rights, including the right of confrontation, to capital sentencing proceedings. The district court did not abuse its discretion by concluding that Moore’s failure to include this claim in his first federal petition constituted an abuse of the writ.

3. Gardner v. Florida claim.

Moore’s claim, based on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), is that the sentencing judge imposed the death penalty based in part on a presentence investigation report that neither petitioner nor his counsel had “any meaningful opportunity to review, correct, or supplement,” in violation of the Eighth and Fourteenth amendments. This claim obviously is not based on any alleged new legal development because Gardner was decided before Moore filed his first federal petition.

This claim has an unusual procedural history. Moore presented this claim in his first state habeas petition and the state court rejected the claim on the merits, finding that Moore’s trial counsel had received a copy of the report prior to his sentencing hearing. When Moore filed his first federal petition in November 1978, he did not include a Gardner claim. This omission appears to have been deliberate because the claim is noted in the procedural history portion of his petition and because, at the time he filed his first federal petition, Moore was represented by the same attorney, James C. Bonner, Jr., who had prepared Moore’s first state habeas petition. Moore did not attempt to add his Gardner claim to his first federal petition until October 1980, when his newly appointed habeas counsel sought leave to amend the petition. The district court denied Moore’s motion for leave to amend the petition to add the Gardner claim, citing in support thereof Moore’s delay in bringing the claim to federal court, explicit reference to the claim in the procedural history portion of his original petition which indicated that Moore was fully aware of it when he filed his first petition, and continuous representation by counsel during his state and federal collateral attacks. Blake v. Zant, 513 F.Supp. 772, 805 (S.D.Ga.1981). Without specifically addressing the issue, the district court, in denying Moore’s motion, indicated its belief that the Gardner claim was merit-less:

[Cjounsel made explicit reference to the presentencing report issue in the original habeas petition, thus demonstrating beyond doubt that this matter had been considered by him and rejected as a basis for relief before this Court. Counsel’s decision cannot be seen as unfounded. This question was considered at length by the state habeas tribunal. Testimony was received from [Moore’s trial counsel] and an affidavit was introduced from the officer who prepared the report. Upon examining this evidence and the trial transcript, which appears to show that the report was turned over to [Moore’s] trial counsel, the Court ruled adversely to the petitioner. No new evidence has been suggested which would cast doubt on this determination.

Id. (citation omitted). Clearly, the court viewed the claim as having been litigated fully and correctly in the state court. The Eleventh Circuit affirmed the district court’s denial. Moore v. Balkcom, 716 F.2d 1511, 1527 & n. 15 (11th Cir.1983) (on rehearing). Moore raised the issue again in his second federal petition, and the district court denied the claim as an abuse of the writ. Moore v. Zant, 734 F.2d 585, 598 (11th Cir.1984) (district court opinion attached).

Moore argues that his failure to raise this claim in his first federal petition cannot be considered an abuse of the writ in light of his attempt to amend that petition to add the claim. Alternatively, he asserts that even if his conduct were to be considered abusive, the “ends of justice” mandate consideration of this claim on its merits. In contrast, the State contends that Moore did abuse the writ by failing to raise this issue properly before the district court and that, in any event, the “ends of justice” do not require consideration of its merits.

We need not determine whether Moore’s attempt to amend his earlier petition excused his omission of the Gardner claim, because we conclude that the claim is mer-itless. Moore had a full and fair opportunity to litigate the claim in his state habeas proceedings, but presented no evidence in support of it. Instead, the record developed in the state habeas proceedings demonstrates that Moore’s counsel was presented with a copy of the presentence investigation report prior to his sentencing hearing; that his counsel requested and was given a recess to review the report; and that, upon reconvening, neither Moore nor his counsel voiced any objection to the contents of the report. Moore now seeks in his second habeas petition in federal court to present evidence that certain information upon which the trial court relied in sentencing him to death was erroneous, but he asserts no reason why he failed to present such evidence when he had a full and fair opportunity to do so in the state collateral proceedings. Accordingly, we conclude that the district court did not abuse its discretion in dismissing the claim.

Additionally, assuming that Moore’s failure to include the Gardner claim in his first federal habeas petition was abusive, we observe that the “ends of justice” do not entitle Moore to relief on the Gardner claim even had he not had an opportunity to present it. Historically, to prove that the “ends of justice” require consideration of an otherwise abusive claim, a petitioner had to show that the “alleged error precluded the development of true facts or resulted in the admission of false ones on a material question involving the sentence.” See Ritter v. Thigpen, 828 F.2d 662, 666 (11th Cir.1987). In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), however, a plurality of the Supreme Court suggested that a petitioner must make a “colorable showing of factual innocence,” id. 106 S.Ct. at 2627, in order to prove that the “ends of justice” required a consideration of the abusive claim. We need not decide which of these tests governs, for we conclude that Moore has failed to satisfy either test. Under Georgia law, a defendant may be sentenced to death even if the only aggravating circumstance present is that the murder was committed during the course of an armed robbery. See Jones v. State, 243 Ga. 820, 256 S.E.2d 907, 914 (1979). By attacking only that portion of the presentence investigation report which dealt with the accuracy of facts supporting the finding that nonstatutory aggravating circumstances were present, Moore has not successfully demonstrated that his sentence would not have been the same even if he prevailed on his argument regarding the nonstatutory aggravating circumstances. See Dugger v. Adams, 489 U.S. -, -, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989). Without such proof, Moore cannot make a “colorable showing of factual innocence” of the death sentence imposed in this case, nor can he demonstrate that the error in the sentencing proceeding which he challenges affected a “material question involving the sentence.” Consequently, we reject his argument that the “ends of justice” require consideration of his otherwise abusive Gardner claim.¹⁶

III.

For the foregoing reasons, the district court’s order dismissing Moore’s second federal habeas petition as an abuse of the writ is AFFIRMED.

Footnotes

1

. The facts of this case have been recounted elsewhere. See, e.g., Blake v. Zant, 513 F.Supp. 772, 803-04 (S.D.Ga.1981), aff’d in part and rev’d in part sub nom. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984); Moore v. State, 233 Ga. 861, 213 S.E.2d 829, 830-31 (1975), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976).

2

. Moore raised three additional claims, none of which is relevant on this appeal.

3

. In his second state and federal habeas petitions, Moore asserted that he was sentenced to death in violation of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), because he lacked the specific intent to kill his victim. Observing that it had rejected the En-mund claim on the merits in Moore’s previous •federal habeas proceeding, the district court held that the claim was meritless and that the ends of justice did not require its relitigation.

4

.In his en banc brief and during oral argument before this court, Moore addressed only five of the claims that were presented in his second federal petition. We deem those claims not advanced on appeal abandoned. E.g., Roberts v. Wainwright, 666 F.2d 517, 518 (11th Cir.1982).

5

. The questions presented were: (1) what type of proof establishes a “new law” exception to the abuse of the writ doctrine sufficient to excuse a habeas petitioner’s abusive conduct in failing to assert the claim in a prior federal habeas corpus petition; and (2) what type of proof establishes that "ends of justice" would be served by relitigating death penalty sentencing phase claims previously adjudicated adversely to a habeas petitioner?

6

. In Teague v. Lane, 489 U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), petitioner, a black man, was convicted by an all-white Illinois jury of attempted murder, armed robbery, and aggravated battery. During jury selection for petitioner’s trial, the prosecutor used all of his peremptory challenges to exclude blacks. Petitioner’s counsel moved for a mistrial, arguing that the prosecutor’s use of peremptory challenges to strike blacks denied him the right to be tried by a jury that was representative of the community. The Illinois Appellate and Supreme Courts denied relief, and the Supreme Court denied certiorari.

Petitioner then initiated federal habeas proceedings pursuant to 28 U.S.C. § 2255, repeating his fair cross section claim. The district court denied relief. On appeal, a panel of the Seventh Circuit Court of Appeals agreed with petitioner’s argument that the Sixth Amendment's fair cross section guarantee applied to the petit jury, as well as to the jury venire, and held that petitioner had made out a prima facie case of discrimination. On rehearing en banc, the court rejected petitioner’s fair cross section claim, holding that the fair cross section protection was limited to the jury venire.

On certiorari to the Supreme Court, petitioner urged the adoption of a new rule which would extend the fair cross section protection to the petit jury. The Court declined to address the merits of petitioner’s contention, holding, instead, that if the Court were to adopt a new principle of constitutional law, petitioner could not benefit from that rule because the rule would not be available to petitioners whose cases were pending collateral review at the time the rule was announced. In an effort to clarify existing law relating to the rules of retroactivity, the Court announced a general rule prohibiting the retroactive application of “new laws” to cases that are "final” at the time those laws are announced, and enumerated two exceptions to that general rule.

7

. Specifically, Moore contends that the Supreme Court’s remand order presents this court with the following five issues, each of which relates to the Teague decision: (1) has the State, who has not asserted a retroactivity defense at any stage of these second federal habeas proceedings, waived its opportunity to assert the nonre-troactivity of Moore’s claims at this stage of the proceedings; (2) should the Teague retroactivity rule be applied in the capital sentencing context; (3) assuming that the Teague rule is generally applicable to capital cases, should it be applied retroactively to capital inmates whose cases were pending collateral review at the time Teag-ue was announced; (4) do some of Moore’s claims fall outside the reach of the Teague rule {i.e., do any of the claims involve issues which do not constitute "new law” for purposes of a retroactivity analysis); and (5) assuming that all or some of Moore’s claims fall within the reach of Teague {i.e., are based on principles which constitute "new law” for purposes of a retroac-tivity analysis), do any of those "new law” claims fall within either of the exceptions to the Teague rule?

8

. Both parties concede that they conceive of the abuse of the writ and retroactivity issues as being two separate analyses which must be conducted pursuant to a petitioner's filing of a successive federal habeas petition. Moore characterizes the issues as two procedural hurdles which must be cleared before a court will address the merits of the claims presented. The State asserts that the abuse of the writ issue involves essentially a procedural analysis, the conduct of which is a prerequisite to any disposition of claims on their merits. Further, the State maintains that the issue of retroactivity is one addressed to the merits of claims presented and, hence, cannot be resolved until the abuse of the writ issue has been determined. The parties’ conception of the interrelationship between the two issues is irrelevant to the present discussion; Moore urges this court to adhere to its prior finding of no abuse of the writ as to the Proffitt, Estelle, and Gardner claims — to declare Moore as having successfully cleared that procedural hurdle — and to proceed immediately to judging his attempt to clear the second hurdle— retroactivity — on his course to relief. The State, in contrast, asserts that both "hurdles” remain in Moore’s path.

9

. Because we conclude that Moore abused the writ by failing to include in his initial federal habeas petition the issues which he presents for the first time in his second federal habeas petition, we need not address whether the Teague rule should be applied to preclude an evaluation of the merits of Moore’s claims.

10

. Also, for purposes of this opinion, we must distinguish between "new" claims and so-called "new law” claims. "New” claims are those which are presented for the first time in a second or subsequent federal habeas petition and which are subject to summary dismissal if a petitioner's failure to present them in his initial federal habeas petition constituted an abuse of the writ. "New law” claims are a particular type of "new” claim — those which are based on an intervening change in the law that occurred between the filing of a petitioner's first and subsequent federal habeas petitions. As discussed, infra pp. 1506-08, "new law" claims will survive abuse of the writ scrutiny only if a reasonably competent attorney (assuming that petitioner is represented by counsel), at the time of filing petitioner’s first federal habeas petition, could not reasonably have anticipated the changes in the law on which those claims are based.

11

. Because the petitioner in this case was represented by counsel at all times relevant to this appeal, our discussion is limited to the “new law” inquiry as it relates to petitioners who were represented by counsel at the time their first federal petition was filed.

12

. A case involves a "clear break with past precedent” when it explicitly overrules a past precedent of the Supreme Court, disapproves a practice the Supreme Court arguably sanctioned in prior cases, or overturns a longstanding and widespread practice to which the Supreme Court has not spoken, but which a near-unanimous body of lower court authority expressly has approved. See United States v. Johnson, 457 U.S. 537, 551-52, 102 S.Ct. 2579, 2587-88, 73 L.Ed.2d 202 (1982).

13

. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), Isaac, a state prisoner, raised in his federal habeas petition a claim that one of the jury instructions given at trial violated his due process rights. At the time of Isaac’s conviction, Ohio law required defendants to prove an affirmative defense by a preponderance of the evidence. Ten months later, however, the Ohio Supreme Court held that jury instructions to that effect were unconstitutional. The district court summarily dismissed his claim, holding that it was procedurally barred because Isaac had failed to comply with an Ohio court rule mandating contemporaneous objections to jury instructions.

Reversing the district court, the Sixth Circuit Court of Appeals concluded that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), did not preclude consideration of Isaac’s due process claim. Instead, the court found that Ohio courts consistently had upheld the constitutionality of the complained-of jury instructions prior to holding them unconstitutional, that any attempt by Isaac to object to the instructions at trial probably would have been futile, and the futility of objecting to the instructions would- have supplied adequate cause for Isaac’s waiver.

Reversing the Sixth Circuit’s decision, the Supreme Court reaffirmed the Sykes rule, and held that Isaac had waived his claim by failing to object to the jury instructions at trial. The Court found that "cause” for Isaac’s default could not be based on Isaac’s assertion that, he could not have known at that time that the state jury instructions were constitutionally infirm. In so doing, the Court emphasized that numerous defendants previously had relied on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), in objecting to similar jury instructions, despite the fact that the defendants' claims often countered well-established principles of law. Engle, 456 U.S. at 132, 102 S.Ct. at 1574. In light of the many challenges made by other defendants, the Court "could not say that state prisoners, such as Isaac, lacked the tools necessary to construct their constitutional claim." Without defining the precise scope of its rule, the Court thus established some duty on the part of habeas petitioners to anticipate future changes in the law at the threat of having claims barred by principles of procedural default.

14

. Because, as Moore asserts, the focus is on a petitioner’s conduct, conceivably, under this inquiry, a petitioner could avoid having a claim barred by abuse principles if he had no knowledge of the "new law" but his attorney did have knowledge of it. This implication of Moore’s argument is clearly contrary to law of this and other circuits, which looks at what counsel knew or should have known at the time the first petition was filed to determine whether a petitioner's conduct was abusive.

15

. During the sentencing phase, for example, opening statements were to be made by the prosecution and the defense. Thereafter, both sides were given the opportunity to present evidence of aggravating and mitigating circumstances in an effort to establish an appropriate sentence — death or life imprisonment. Following the close of all of the evidence, both sides argued their case to the jury, the court instructed the jury on the law, and the jury retired to deliberate its verdict. The judge then imposed the appropriate sentence in accordance with the jury's verdict. Cases tried to the court, instead of to a jury, followed the same procedures, except that the judge replaced the jury as the finder of fact and the sentence.

16

. On appeal, Moore also challenges the district court’s disposition of two additional claims. First, Moore asserts that the district court abused its discretion in concluding that he abused the writ by failing to include in his first federal petition his claim that he was denied effective assistance of trial counsel at the sentencing phase of his proceedings. An examination of the record in this case reveals that the ineffectiveness issue, including the performance of counsel at the sentencing phase, was examined in detail by the trial court in its order denying the first state habeas petition. Moreover, Moore offers no proof that would excuse his neglect in failing to raise this claim in his first federal petition. Accordingly, we hold that the court did not abuse its discretion in finding that the claim was barred under abuse of the writ principles.

Second, Moore challenges the district court’s rejection of his claim that the death penalty is applied in Georgia in a racially discriminatory manner. Moore’s claim, which is based on the Baldus study, was not raised in Moore's first state or first federal habeas petitions. The district court held that the claim was barred on abuse grounds. Pretermitting discussion of whether the claim was barred on grounds of either procedural default or abuse of the writ, we decline to examine this claim in detail because the Baldus study was rejected in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).