dissenting:
By adopting the district court’s order, the majority holds that Moore’s second habeas petition constitutes an abuse of the writ and therefore precludes him from litigating his claims in federal court. Under the precedents of the Supreme Court and this circuit, however, at least two of Moore’s claims fall outside the scope of the abuse of the writ doctrine.1 In holding the contrary, the majority expands the abuse of the writ doctrine in an unwarranted manner. I respectfully dissent.
I. The Abuse of the Writ Doctrine
In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1962), the Supreme Court stated that a successive application for habeas relief raising claims not previously raised or, if raised, not adjudicated on the merits may be avoided only if there has been an abuse of the writ. Id. at 17, 83 S.Ct. at 1078. It is well settled that a successive petition presenting new claims may not be dismissed as an abuse unless the previous omission of these claims resulted from “(1) the intentional withholding or intentional abandonment of those issues on the initial petition or (2) inexcusable neglect.” Stephens v. Kemp, 721 F.2d 1300, 1303 (11th Cir.), granted, — U.S. -, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983); see Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981). Similarly, whether a petition presenting claims previously raised, but not adjudicated, constitutes an abuse depends upon whether the petitioner’s intentional abandonment or inexcusable neglect precluded the original habeas court from reaching the merits. Moreover, whether intentional abandonment or inexcusable neglect has occurred “must be tested under equitable principles,” Potts, 638 F.2d at 743, that is, “the equities of the situation and the conduct of petitioner are relevant to the determination of whether an abuse has occurred,” id. at 741.
Also important in determining whether there has been an abuse is the underlying purpose of the doctrine. In this regard, the former Fifth Circuit observed, “The principle behind Rule 9(b) is to dismiss those petitions that constitute ‘needless piecemeal litigation’ or whose ‘purpose is to vex, harass, or delay,’ ” Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir.1980) (quoting Sanders, 373 U.S. at 18, 83 S.Ct. at 1078).
Attention to these considerations when applying the already narrow standards articulated above promotes flexibility and ensures that “[t]he ‘abuse of the Writ’ doctrine is of rare and extraordinary application.” Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980). In this case, however, the majority not only extends the applicable standards, but also disregards the relevant equitable considerations. The result is an overly broad and excessively rigid application of the doctrine.
II. The Claims Raised in the Proposed Amendment to the Original Petition
In the petition before us, Moore challenges the presentence report on which the sentencing judge relied as containing substantial inaccuracies. Citing Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311, cert. denied, — U.S. -, -, 104 S.Ct. 508, 509, 78 L.Ed.2d 697, 698 (1983), he argues that he was unconstitutionally denied an adequate opportunity to examine, contest and confront the report. Moore’s substitute appointed counsel had attempted to raise these issues in the initial federal petition by way of amendment proffered while the proceeding was pending, seven months prior to the *602district court’s ruling. Moore had raised the claims in his state habeas proceeding, but failed to assert them in the original federal petition. Though granting habeas relief on two other grounds,2 the district court refused to allow the amendment, and a panel of this court upheld the refusal on Moore’s cross appeal as not constituting an abuse of discretion. Moore v. Balkcom, 716 F.2d 1511, 1527 (11th Cir.1983), modified, 722 F.2d 629.
Moore thus has attempted to challenge the presentencing report twice in federal court: once by amendment to his initial federal petition and again in this his second federal petition. It is undisputed that the matter of alleged inaccuracies in the presentencing report and the constitutional claims arising therefrom have not been decided on the merits by a federal court. Indeed, in the order under review, the district court, while finding that the petition was an abuse of the writ, granted a certificate of probable cause, stating:
Petitioner in this case has raised a sufficient question for this Court to hesitate, for if Attorney Pierce did fail to scrutinize the report, then sufficient likelihood would exist for finding that a wrongful sentence was imposed based on inadequate information. Where the interests of justice so require, such a claim should be entertained. It was a similar hesitation that caused Justice O’Connor in Eddings to conclude that “[b]ecause of [sic] the trial court’s failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.” 455 U.S. 104, 117 n., 102 S.Ct. 869, 878 n., 71 L.Ed.2d 1.
Unlike Washington, it is arguable in this case that the corrected information “would [not] barely have altered the sentencing profile presented to the sentencing judge.” Id., at -, 104 S.Ct. at 2071.
Given Moore’s attempt to amend his initial federal petition while his claims were still pending before the district court and his cross appeal of the denial of leave to amend, I fail to see how Moore’s actions can be properly characterized as an abuse of the writ. Viewing, as does the majority, the successive petition as raising the Gardner and Proffitt claims for the first time in federal court, I conclude that the omission of these claims may not be attributed to intentional withholding or inexcusable neglect, for it is evident that Moore actively sought to have the district court address the claims during the pendency of his first habeas proceeding. In other words, Moore’s attempt to amend tends to negate any inference that he deliberately or inexcusably omitted the claims from his initial submission to the district court.3
To the extent that Moore’s attempt to amend, albeit unsuccessful, served to present the Gardner and Proffitt claims to *603the district court, the successive petition is perhaps best viewed as raising claims previously raised, but not adjudicated on the merits. If so, the crucial issue is whether the district court's failure to reach the merits is directly attributable to Moore’s intentional abandonment or inexcusable neglect. Moore gave the district court the opportunity, indeed urged the district court, to decide the claims, but the court declined to do so. The petitioner should not be faulted at this stage for the district court’s exercise of its discretion. See Moore, 716 F.2d at 1572.
A finding of abuse under these circumstances is inconsistent with equitable principles and the underlying purpose of the doctrine. Except for his failure to include the Gardner and Proffitt claims in the document which initiated his first habeas proceeding, Moore did all he could to have the claims heard by the first habeas court. Accordingly, this is not an instance of “needless piecemeal litigation,” nor is the purpose of the present petition “to vex, harass, or delay.” Rather, having sought in vain to have his claims litigated in a single proceeding, Moore now seeks a decision on the merits regarding those claims which the district court earlier refused to address. Because in my view no abuse of the writ has occurred, I would reverse and remand for a decision on the merits.
III. The New Law Claim
Moore raises for the first time a claim based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981),4 alleging that the Probation Officer who compiled the presentencing report violated Moore’s fifth amendment rights by not reading him a Miranda warning before the interview. The district court dismissed the claim as constituting an abuse of the writ, finding that Moore’s failure to raise the claim in his first federal petition was unjustifiable because the holding in Smith was a foreseeable development in the law. I am troubled by the majority’s endorsement of the district court’s analysis for a number of reasons.
First, in reaching its conclusion, the district court by its own admission adopted a new standard for judging whether the omission of a “new law” claim is justifiable. Reasoning that our prior abuse of the writ cases “may have had their vitality weakened by recent Supreme Court cases concerning exhaustion,” (emphasis added) the court proceeded to hold that new law claims are to be judged by the standard outlined in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), a procedural default case. Hence, the court found the relevant question to be whether “the tools” necessary to anticipate the change in the law were available. The district court also embraced the holding of the recent Fifth Circuit en banc decision in Jones v. Estelle, 722 F.2d 159 (5th Cir.1983), which held in part that a petitioner who was represented by counsel is held accountable to a higher standard in justifying the omission of a claim from a prior habeas petition. Id. at 167.
However accurate the district court’s predictions as to the future validity of our prior abuse of the writ cases, it is not for either the district court or this panel to overrule precedent. Such abandonment of prior authority can only be accomplished by this court sitting en banc or by the Supreme Court. Indeed, the Fifth Circuit in Jones sat en banc in order to reverse the panel’s holding, which had applied former Fifth Circuit case law in finding that the petitioner’s third petition was not an abuse of the writ. Contrary to the established practice in this circuit, a decision which necessitated en banc consideration in Jones has been imported into this circuit’s law by a district court order and a panel ruling on a motion for an emergency stay of execution.
Moreover, without citing any direct authority from any circuit, the district court in this case took the novel step of applying the Engle holding to successive petitions, a step which the Jones majority expressly declined to address. 722 F.2d at 159 n. 5. Under the law of this circuit prior to today, a habeas court was not required to engage *604in an objective inquiry into whether “the basis of a constitutional claim [was] available, and other defense counsel [had] perceived and litigated that claim.” Engle, 456 U.S. at 134, 102 S.Ct. at 1575. Instead, a subjective inquiry into the petitioner’s actual awareness was necessary. As the court in Haley stated:
[I]t is clear that a petitioner cannot be charged with having abused the writ of habeas corpus if, at the time of his earlier petition, he was unaware of the facts on which his newly asserted claims are based, or was unaware that those facts constituted a basis for which federal habeas corpus relief could be granted.
632 F.2d at 1275. By adopting the heightened “cause” standard developed by the Engle Court in the procedural default context for evaluating new law claims in successive petitions, the majority significantly modifies our present abuse of the writ case law. Whatever the wisdom of such a drastic step, it is a matter inappropriate for a panel of this court to decide, especially in a proceeding of an emergency nature.
For the foregoing reasons, I would also remand this claim to the district court with instructions to apply the abuse of the writ standards under existing Eleventh Circuit precedent.
IV. Conclusion
Unquestionably, genuine abuses of the writ must be prevented, but we must not adopt measures so broad that legitimate claims will not be heard. I fear that the majority’s approach today loses sight of the fact that the doctrine “is not intended to automatically foreclose each petitioner who fails to claim every ground for relief in his first application in federal court.” Haley, 632 F.2d at 1276.
. These claims concern the presentencing report relied upon by the sentencing court. I agree with the majority that Moore's other claims constitute an abuse of the writ.
. The district court had granted relief because it found: (1) the death penalty in this case "shocked the conscience" and thus the Georgia Supreme Court had erred in performing its statutory duty to conduct a proportionality review, and (2) the trial court had improperly relied on a non-statutory aggravating circumstance. A panel of this court reversed on both grounds. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983), modified, 722 F.2d 629.
. The Ninth Circuit has noted in the context of a petitioner attempting to amend his petition to include an unexhausted claim that, “[the petitioner’s] attempt to amend his petition (which negates any inference that [the petitioner] was deliberately withholding the issue) ... convinces us that [the petitioner] would not be barred by the abuse-of-the-writ doctrine from raising the issue in a subsequent federal habeas petition....’’ Powell v. Spalding, 679 F.2d 163, 165 n. 2 (9th Cir.1982). The Supreme Court is evenly divided over whether unexhausted issues later resubmitted would constitute an abuse of the writ. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 1213 n. *, 71 L.Ed.2d 379 (1982) (Brennan, J., concurring in part and dissenting in part).
This petitioner’s attempt to amend presents a far more compelling case for negating an inference of deliberate withholding. Whereas a petitioner in the exhaustion situation under Lundy must amend to withdraw the unexhausted claims and then later attempt to have them decided in a successive petition, here the petitioner’s proffered amendment was for the express purpose of raising the issues so that the district court could address all of his claims in one proceeding.
. Moore also alleges that he has a new law claim based on our decision in Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (1983), cert. denied, - U.S. -, - 104 S.Ct. 508, 509, 78 L.Ed.2d 697, 698 (1983). In Proffitt, we held that the sixth amendment right of confrontation and cross examination extended to witnesses in capital sentencing proceedings. 685 F.2d at 1251-55. Because part of Moore’s argument in his first state habeas proceeding and his attempted amendment was that he was not allowed to examine and contest the presentence report, I would treat this claim as one already raised but not adjudicated, see supra Part II.