Petitioner Moore raised in a second federal habeas petition new grounds not raised in his first federal petition and allegedly based upon new principles of law laid down since the first federal petition. The major decision for the en banc court concerns the determination of whether this was an abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases.
Moore was convicted of murder in Georgia after a plea of guilty and sentenced to death. He has filed a first state petition for habeas, followed by a first federal petition, a second state petition, and now the second federal petition. In the present case the district court denied all nine grounds asserted on the basis of abuse of the writ. A divided panel of this court affirmed and adopted the district court opinion. Moore v. Zant, 734 F.2d 585 (11th Cir.1984). Judge Kravitch dissented. 734 F.2d at 601. We set out in the margin a chronology of the key events in this litigation.1
Five issues are pressed before the en banc court:
(1) The state failed to advise Moore of his right to remain silent or of his right to counsel prior to or during a presen-tence interview 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 considered in the presentence 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. 1003, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983).
(3) Neither Moore nor his counsel was afforded adequate opportunity to review the presentence report prior to the sen*850tencing proceeding, in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
(4) Ineffectiveness of trial counsel at sentencing phase.
(5) Racially discriminatory application of the death penalty in the State of Georgia.2
I. The Estelle v. Smith claim
In his second state petition, filed in 1984, Moore raised claim (1) of the list above— the failure to advise him of his right to remain silent and of his right to counsel prior to a presentence interview by a probation officer after conviction and before sentencing. The officer interviewed Moore in connection with the preparation of a pre-sentence report that was introduced by the state at the sentencing phase of Moore’s trial.
This claim was based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which was not decided until three weeks after Moore’s first federal petition was decided by the district court.3 In Smith a court ordered the psychiatric examination of Smith, a Texas state prisoner, while he was in custody. Smith was not advised of his right to remain silent when examined by the psychiatrist nor was he told that any statement he made to the psychiatrist could be used against him at the ensuing sentencing hearing. The Supreme Court held that admission of the interrogating doctor’s testimony at the sentencing phase of Smith’s trial violated his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel as well. Moore seeks to apply Smith to the presen-tence interview conducted of him by a probation officer after his conviction but before his sentencing.
The state court denied the Smith claim. First, it held that Moore had previously litigated the issue unsuccessfully. The court did not mean this literally but rather, as its opinion explains, Moore had known the facts concerning his interview by the probation officer and in the first state ha-beas had raised the issue of opportunity to comment on and explain the report, and therefore, he could have raised the question of failure to advise him of his right to remain silent and his right to counsel; having failed to do so he had “waived the right to do so in this successive habeas petition.” Second, the court held that Smith did not establish a new constitutional principle because the Supreme Court had relied on its prior decisions in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
This issue was then presented in the second federal petition, filed immediately after the second state petition was denied, raising for the first time in the federal court a principle of law alleged to be new and to have been laid down since the first federal petition, and giving rise to an abuse of the writ issue under Rule 9(b). Four *851days after filing, the district court denied the claim on abuse of the writ grounds.4 We hold that the Smith claim in the second petition was not properly dismissed under Rule 9(b) and remand for reconsideration of this issue on the merits.
Absent deliberate withholding or intentional abandonment of a claim in the first federal petition, the inquiry into whether a petitioner has abused the writ in raising a new law claim must consider the petitioner’s conduct and knowledge at the time of the preceding federal application.5 Rule 9(b) allows dismissal of a claim when “the failure of the petitioner to assert those grounds in the prior petition constituted an abuse of the writ.” Accord 28 U.S.C. § 2244. The focus on petitioner’s conduct is mandated by the basic purpose of the abuse of the writ doctrine — to enforce the “equitable principle[ ] ... that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” Sanders v. U.S., 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). An evaluation of a petitioner’s conduct in omitting a claim from his first petition necessarily hinges on the petitioner’s awareness of the factual and legal bases of the claim when the first petition was filed.6 See Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir.1980) (a petitioner may assert in a second petition a claim based on facts or legal theories about which he had no knowledge at the time of his prior habeas petition).
Moore was represented by counsel at the time his first federal habeas corpus petition was filed. He is chargeable with counsel’s actual awareness of the factual and legal bases of the claim at the time of the first petition and with the knowledge that would have been possessed by reasonably competent counsel at the time of the first petition. Cf. Daniels v. Blackburn, 763 F.2d 705, 710 (5th Cir.1985) (finding abuse where “[e]ach of the claims that Daniels has asserted in this proceeding is a claim of which competent habeas counsel would have been aware at the time Daniels’ prior federal petition was filed in 1980”).
We turn next to the state of the law in November 1978 — the time of Moore’s first federal petition — with respect to the state’s failure to advise Moore of his fifth amendment right to remain silent and of his sixth amendment right to counsel prior to or during the presentence interview conducted by a probation officer after conviction and before sentencing. We hold that in November 1978, two and a half years before Estelle v. Smith, 451 U.S. 454, 101 5.Ct. 1866, 68 L.Ed.2d 359 (1981), reasonably competent counsel preparing the first petition could not reasonably have been expected to foresee the fifth and sixth amendment implications of Moore’s presen-tence interview. In particular, counsel is not chargeable with an anticipation of the potential intersection of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) with the sentencing phase of a bifurcated Georgia capital murder trial. As a result, Moore’s failure to raise the Miranda claim in his first habeas corpus petition was not an abuse of the writ.
The failure of Moore and counsel in 1978 to anticipate the application of Miranda in the context of the sentencing phase of Georgia’s bifurcated capital proceeding is reasonable in light of the lack of clear guidance in 1978 with respect to constitutional protections that might attach to the *852sentencing phase. Georgia's bifurcated death penalty procedure had been approved by the Supreme Court in 1976. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It was not immediately obvious, however, that the constitutional protections normally accorded to a defendant’s merits trial would be applied to sentencing phases in general, or Georgia’s in particular, much less that Miranda might be so applied. In 1982, four years after the 1978 date as of which we are assaying what Moore and his counsel reasonably should have foreseen, the Eleventh Circuit noted that “[traditionally, sentencing hearings have not been accorded the significance of the guilt-determination portion of the trial.” Proffitt v. Wainwright, 685 F.2d 1227, 1252 (11th Cir.1982), modified, 706 F.2d 311, cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983). This court went on to say in Proffitt that in light of recent Supreme Court decisions, “[t]he view, once prevalent, that the procedural requirements applicable to capital sentencing are no more rigorous than those governing noncapital sentencing decisions ... is no longer valid.” Id. at 1253 (emphasis added).7
Further evidence of a lack of clear guidance in 1978 with respect to sentencing phases is revealed by looking at the cases on which the Supreme Court relied in its opinion in Estelle v. Smith. The Court, in 1981, cited three cases in support of the application of certain constitutional guarantees to the Texas penalty phase: Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Of these, Presnell (decided November 6, 1978) and Green (decided May 29, 1979) were handed down by the Supreme Court after Moore's first federal habeas petition was filed in 1978. The statement in Gardner, a year before Moore's first federal petition, that “the sentencing process, as well as the trial itself, must satisfy the Due Process Clause” appears in a plurality opinion of three justices. 430 U.S. at 358, 97 S.Ct. at 1204. The concurring opinions do not clearly ascribe to this position. See id. at 364, 97 S.Ct. at 1207 (White, J., concurring) (“I see no reason to address in this case the possible application to sentencing proceedings — in death or other cases — of the Due Process Clause, other than as the vehicle by which the strictures of the Eighth Amendment are triggered in this case.”).8
When Moore filed his first federal petition, therefore, the extent to which constitutional protections for criminal defendants would apply to capital sentencing proceedings was not clear — the full panoply of protections, or less than the full array, and if less, what was to be included? Cf. Proffitt, in 1982: “[although the [Supreme] Court has held capital sentencing proceedings must meet certain procedural requirements, it has not yet delineated the exact scope of constitutional procedural protection to which capital defendants are entitled.” 685 F.2d at 1253 (emphasis added). In 1980, two years after Moore filed his first petition, the State of Texas was arguing before the United States Supreme Court in Smith that Smith “was not entitled to the protection of the Fifth Amend-mént because [the] testimony was used only to determine punishment after conviction, not to establish guilt” and that “the Fifth Amendment privilege has no relevance to the penalty phase of a capital murder trial.” Smith, 451 U.S. at 462, 101 S.Ct. at 1872.
Next, we analyze the decision in Smith with particularity, to see what light it sheds on the question of the foreseeability to counsel in 1978 of the possibility that Miranda would have plenary applicability to the sentencing phase of a Georgia-type capital murder trial. In Smith the Court found a violation of Smith’s fifth and sixth amendment rights where the State of Texas introduced, at the sentencing phase of his capital murder trial, the testimony of a psychiatrist who, pursuant to court order, had interviewed him to determine his com*853petency to stand trial. The Court held that in light of Miranda the psychiatrist’s testimony could not be used at the sentencing phase because Smith had not been given Miranda warnings. In Gray v. Lucas, 677 F.2d 1086, 1096 n. 9 (5th Cir.1982) the Fifth Circuit spoke to whether Gray’s counsel should have foreseen the circuit’s own opinion in Smith (handed down in 1979, a year and a half before the Supreme Court decided Smith): “Because our opinion in Smith was delivered three years after Gray’s trial, we do not fault Gray’s counsel for not anticipating our holding.”9
Analysis of why Moore and his first ha-beas counsel, in 1978, could not reasonably have been expected to anticipate a Smith -type10 claim requires understanding the importance to the Smith decision of the special nature of a Texas sentencing proceeding in a bifurcated capital trial.11 This is seen in the Fifth Circuit’s analysis of Smith in Battie v. Estelle, 655 F.2d 692 (5th Cir. Sept. 11, 1981), a decision binding on our court. In connection with the issue of the applicability of Miranda to the sentencing phase of the trial in Smith,12 Bat-tie said:
Smith only held the fifth amendment privilege applicable to the sentencing stage of a capital trial in Texas because the State of Texas must prove a capital defendant’s future dangerousness as an issue separate and distinct from proof of his guilt. The applicability of the privilege to mandatory or discretionary sentencing procedures not requiring proof of such an additional prerequisite to impose a criminal punishment raises different questions not necessarily resolved by Smith.
655 F.2d at 698 n. 10. The Georgia statute under which Moore was sentenced requires only consideration of aggravating and mitigating circumstances and does not require any proof of future dangerousness. See O.C.G.A. § 17-10-30. It would be anomalous for us to charge Moore’s counsel with an awareness in 1978 of a proposition that remained unclear to the Fifth Circuit almost three years later (and four months after it had the benefit of Smith), namely *854that Miranda protections would be applicable to the sentencing phase of a Georgia-type death penalty proceeding.
The Supreme Court has told us that “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); accord Smith v. Murray, 477 U.S. 527, _, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). An attorney’s failure in 1978 to recognize the potential intersection of Miranda and Georgia capital sentencing proceedings, does not cause his performance to fall outside of “the wide range of professionally competent assistance.” See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Consequently, we cannot charge Moore with the knowledge of the legal basis of this claim at the time of his first petition and therefore hold that his conduct in omitting the claim was an not abuse of the writ warranting dismissal under Rule 9(b). Absent such an abuse of the remedy, the federal courts should hear the merits of the claim on habeas corpus. Accordingly we remand to the district court for a consideration of the merits of Moore’s claim regarding his presentence interview.
II. Proffitt v. Wainwright claim
In Moore’s second habeas petition he raised another “new law” claim. He alleged that the state denied him the right to confront and cross-examine witnesses whose hearsay testimony was considered in the presentence report. This claim is based on Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983), which was decided by the Eleventh Circuit on September 10, 1982, five months after the district court decided the first federal petition. In Proffitt this court recognized the specific constitutional right accorded a capital defendant to cross-examine a psychiatrist whose report of a presentence examination of the defendant was considered by the trial court in its sentencing decision. Id. at 1251-55. Moore seeks to apply this case to witnesses whose statements were included in his presentence report.
The state habeas court denied the claim, holding that there was no new factual basis for the claim and that Proffitt did not establish a new constitutional principle because the Eleventh Circuit had relied “on the landmark decisions of the Supreme Court of the United States in Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965) and Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).” In this second federal habeas petition the district court rejected the Proffitt claim under the same abuse analysis that it applied to the Estelle v. Smith claim. As with the Smith claim, we cannot charge Moore with the knowledge of the legal basis of this claim at the time of his first petition and we hold that his conduct in omitting the claim was not an abuse of the writ.
The new law aspect of Proffitt arises from the court’s resolution of the question of “[wjhether the right to cross-examine adverse witnesses extends to capital sentencing proceedings.” 685 F.2d at 1253. The court extended the cross-examination principles of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); California v. Green, 399 U.S. 149, 158, 90 S.Ct.. 1930, 1935, 26 L.Ed.2d 489 (1970); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965) to the penalty phase of capital proceedings. As we concluded with respect to the Estelle v. Smith claim, the failure of Moore and his counsel in 1978 to anticipate this extension does not render the omission of the claim from the first petition an abuse of the writ. Accordingly we reverse the district court’s dismissal of the Proffitt claim on abuse grounds and remand for reconsideration of the merits of the claim.
III. The Gardner v. Florida claim
The second federal petition alleged that neither Moore nor his counsel had been given a meaningful opportunity to review, correct, or supplement the presentence report, in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 *855(1977). Gardner was decided in 1977; therefore this is not a claim based on alleged “new law” declared since the first federal petition.
This claim comes to us with an unusual procedural history. It was originally raised in Moore’s first state habeas corpus petition in 1978. The first federal petition, filed in the fall of 1978, did not include this claim. Moore sought to raise the claim by amendment to the petition in October 1980, just after he retained new counsel. The district court refused to grant leave to amend the petition, and the Eleventh Circuit affirmed:
The district court found that petitioner had been represented by counsel at all times. Counsel explicitly referred to this issue in the original habeas petition filed approximately two years before the proposed amendment. We cannot say that the district court abused its discretion in denying the proposed amendment in this case where counsel apparently considered and rejected the proposed arguments two years before filing the proposed amendment.16
716 F.2d at 1527 & n. 15. Moore raised the issue again in his second federal petition, and the district court denied the claim as an abuse of the writ. 734 F.2d at 598 (district court opinion).
Rule 9(b) creates two categories of claims in second (or successive) habeas petitions. The first prong concerns cases in which the same ground has previously been presented and decided against petitioner in a prior determination on the merits. Moore’s claim of inadequate opportunity to review the presentence report was never determined on the merits. It is therefore a second prong, or new, claim that must be entertained on the merits unless the failure to raise it in the first petition was an abuse of the writ.
Moore argues that the failure to raise this claim in the first petition cannot be an abuse of the writ in light of Moore’s attempt to add the claim by amendment. Although Moore did attempt to raise this claim before the first federal habeas court, the procedural insufficiency of that attempt has already been litigated, before that court on a motion to amend the petition and before this court on Moore’s cross-appeal of the denial of the motion to amend. 716 F.2d at 1527. We are thus called upon to determine the effect on a second federal habeas corpus petition of a failure to raise a claim adequately on the first petition. On the one hand, the denial of leave to amend cannot stand as a conclusive determination that the failure to raise the claim in the first petition was an abuse of the writ, because the standards applied by a district court in considering amendment are not coterminous with the standards for abuse of the writ. Cf. Paprskar v. Estelle, 612 F.2d 1003 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980) (dismissal of unexhaust-ed claims in first petition does not bar as an abuse the assertion of those claims on a second petition). On the other hand, the mere attempt to raise the claim by amendment in one habeas proceeding cannot by itself be a defense to an assertion of abuse in a subsequent proceeding. It would be anomalous if a petitioner who deliberately and strategically withheld a claim from his petition, cf. Young v. Kemp, 758 F.2d 514, 516 (11th Cir.1985), could insulate that conduct from a later abuse determination by the simple expedient of an untimely attempt to amend the first petition. This result would frustrate Rule 9(b)’s goal of having all claims raised and determined in one petition.
The fact that Moore’s Gardner claim was included in a proposed amendment to a first petition and that the amendment was properly denied is at most a factor to be considered in answering the question of whether that claim may be denied in this petition on abuse of the writ grounds. The appropriate inquiry in the subsequent action is whether the failure to bring the *856claim properly in the first action constituted an abuse of the writ.
We cannot say that the district court, in ruling on Moore s second petition, erred in finding that the failure to include this claim in the first petition was an abuse of the writ.13 Moore raised the claim in his first state habeas petition, see 734 F.2d at 597 (district court opinion), and his original federal habeas petition made explicit reference to the presentence report issue. See Moore v. Balkcom, 716 F.2d 1511, 1527 (11th Cir.1983). He failed even to attempt to raise the claim for almost two years after the first petition was filed. This extended failure to raise a claim previously raised in the state courts is analogous to the situation in Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984) (per curiam). In that case the Supreme Court upheld a finding of abuse where the “applicant had presented each of these claims to the state courts before the first petition for habeas was filed (and, indeed, the substance of these claims may have been presented in the first habeas petition)....” Id. at 206, 104 S.Ct. at 965.
Even where abuse is found, however, a federal court should not dismiss, under Rule 9, a claim in a successive petition if the “ends of justice” require consideration of the claim on the merits. See Potts v. Zant, 638 F.2d 727, 751-52 (5th Cir. Unit B), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981); Sanders v. U.S., 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963). The district court in Moore acknowledged this principle, noting that “[w]here the interests of justice so require, such a claim should be entertained,” 734 F.2d at 597. The court apparently concluded, however, that the ends of justice did not require a consideration of Moore’s Gardner claim on the merits because petitioner had had “repeated opportunities to litigate this issue.” Id.
It is not certain what standards should guide a district court in determining whether the “ends of justice” require the consideration on the merits of an otherwise dismissable successive habeas petition. In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), a four-justice plurality of the Supreme Court suggested that the ends of justice will demand consideration of the merits of claims only where there is “a colorable showing of factual innocence.” Id. at 2627. We need not decide at this time whether a colorable showing of factual innocence is a necessary condition for the application of the ends of justice exception. We merely hold that, at a minimum, the ends of justice will demand consideration of the merits of a claim on a successive petition where there is a color-able showing of factual innocence.
Some adjustment is required to apply this test, phrased as it is in terms of “innocence,” to alleged constitutional errors in capital sentencing. We find some guidance in the Supreme Court’s opinion in Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In the context of alleged errors in a capital sentencing proceeding the Court in that case sought to apply an analogous standard—that governing when fundamental principles of justice would require the consideration of procedurally defaulted claims in the absence of a showing of cause for the default. The standard was announced in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) which held that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id. at 2650.
The Smith v. Murray Court refused to consider a claim on the merits, finding that “the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. *857Thus, even assuming [error in the allowance of certain testimony], its admission did not serve to pervert the jury’s deliberations concerning whether in fact petitioner constituted a continuing threat to society.” 106 S.Ct. at 2668.
The district court in the present case did not have available to it the guidance given by the Supreme Court in Smith v. Murray. In our consideration of whether “the alleged constitutional error [either] precluded the development of true facts [or] resulted in the admission of false ones” we are faced with a fundamental inconsistency in the decision of the district court. The court found that the ends of justice did not require consideration of the Gardner claim on the merits. Yet its own statements arguably require the opposite finding. The court stated that if there had been a Gardner violation, “then sufficient likelihood would exist for finding that a wrongful sentence was imposed based on inadequate information.” The court also found that “it is arguable that the corrected information ‘would [not] barely have altered the sentencing profile presented to the sentencing judge,’ ” that is, that corrected information would have materially altered the profile before the judge. 734 F.2d at 597 (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under these circumstances we vacate the denial of the Gardner claim and remand in order that the district court can give fresh consideration to whether the ends of justice require it to consider the merits of this claim.
IV. Ineffectiveness of trial counsel
Moore’s second federal habeas petition alleges that his trial attorney rendered ineffective assistance at the sentencing phase of his trial. By a pro se motion to amend his first habeas petition, Moore attempted to raise the issue of ineffectiveness of counsel at the merits trial in numerous respects, set out in the margin.14 The only reference to the sentencing phase concerned failure to transcribe petitioner’s arguments concerning punishment and mitigation and aggravating circumstances.
In the second federal petition Moore alleged ineffective counsel at sentencing, on numerous grounds. Moore urges that he did not withhold the issue, stating that it was omitted from the first federal petition because of differences between him and his counsel. The ineffectiveness issue, including the performance of counsel at the sentencing phase, had been examined in detail in the order denying the first state petition. Ineffectiveness at sentencing was not asserted in petitioner’s pro se amendment or in the Hicks amendment. The court did not err in finding that it was barred under abuse of the writ principles.
V. Racially discriminatory application of death penalty in Georgia
This claim was not raised in the first state petition or the first federal petition. Petitioner has sought the benefit of the Baldus study. The district court held it was barred on abuse grounds. We do not examine this in detail because the Baldus study was rejected in McCleskey v. Kemp, — U.S. -, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
AFFIRMED in part, REVERSED in part and REMANDED.
. 1974: Plea of guilty and sentence; affirmed on merits by Georgia Supreme Court. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975) (per curiam), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976).
January 1978: First state habeas petition filed. Relief denied July 13, 1978, after eviden-tiary hearing.
November 22, 1978: Federal habeas petition filed.
March 19, 1979: Habeas counsel moved to withdraw.
April 1979: Petitioner pro se moved to amend to assert several new grounds, including ineffectiveness of counsel.
June 18, 1979: Hearing before magistrate. Petitioner asserted that his attorney referred to conflict between him and Moore on whether ineffective counsel claim should be asserted and magistrate refused to take evidence on issue or to permit petitioner to file an affidavit.
September 30, 1980: New habeas counsel Hicks retained.
October 1, 1980: Motion to amend by new counsel Hicks to add five grounds. State objected to proposed amendments by petitioner and Hicks.
April 8, 1981: Present (third) habeas counsel retained.
April 29, 1981: District court denied relief from conviction, granted writ as to sentence on ground of no proportionality review by Georgia Supreme court. The court also denied both motions to amend (by Moore, pro se, and by Hicks). Blake v. Zant, 513 F.Supp. 772, 803-18 (S.D.Ga.1981).
1981-1983: Appeal by state to Eleventh Circuit. Moore cross-appealed on refusal to allow his pro se amendment. Granting of writ reversed and relief denied on cross-appeal on ground of no abuse of discretion. 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).
May 11, 1984: Second state habeas petition filed. Dismissed without hearing. Review denied by Georgia Supreme Court.
May 18, 1984: Second federal habeas petition filed. District court denied relief May 22 on abuse of writ grounds.
June 4, 1984: A panel of the Eleventh Circuit affirmed on district court opinion. Moore v. Zant, 734 F.2d 585 (11th Cir.1984).
. The district court also rejected four other grounds for relief in Moore’s federal habeas corpus petition:
2) Petitioner was sentenced on the basis of materially false and misleading information contained in the presentence report.
5) The presentence report defects prevented petitioner from obtaining a meaningful appellate review in violation of his [sic] Eighth and Fourteenth Amendments.
6) Petitioner's death sentence is excessive and disproportionate under the Eighth and Fourteenth Amendments since it was imposed despite his repeated and uncontradicted denial of any intent to kill the victim.
9) Since the sentencing judge expressly relied on the prospect of appellate review or the United States Supreme Court’s invalidation of Georgia's capital statutes, [he] attached diminished consequences to the sentence of death as imposed and thus took less than full responsibility for the sentencing decision in violation of petitioner’s Eighth and Fourteenth Amendment right.
734 F.2d at 589 (district court opinion).
. The district court decision granting relief in Smith was decided December 10, 1977, shortly after Moore’s first state petition was filed. The Fifth Circuit affirmed September 13,1979, more than a year after the first federal petition was filed but more than a year before the proposed Hicks amendment was filed. See n. 1, supra. The decision by the Supreme Court in Smith was entered May 18, 1981, three weeks after the district court ruled on the first federal petition.
. It impliedly rejected the state court’s statement that Moore had previously litigated the Smith claim and proceeded directly to the conclusion that Smith was not "new law."
. Of course, the court may not have to consider whether a new law claim on a successive petition is abusive if it determines that the new claim is wholly without merit. The Court in Sanders provided that the abuse of the writ rules "are not operative in cases where the second or successive application is shown, on the basis of the application, files and records of the case alone, conclusively to be without merit.” Sanders v. U.S., 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). This policy is incorporated into Rule 4 of the Rules Governing Section 2254 Cases (authorizing summary dismissal "[i]f it plainly appears from the face of and any exhibits annexed to it that the petitioner is not entitled to relief’).
. Awareness of the factual basis for a claim at the time of a prior federal habeas petition is a question not before us.
. See Part II, infra, for a discussion of Moore’s Proffitt claim.
. The other concurrences did not consider the issue.
. The Fifth Circuit’s opinion in Smith could not have given Moore's counsel any guidance, for it came a year after Moore’s first federal petition.
. Because we hold that Moore’s counsel is not chargeable with an awareness of the Smith principle, we need not decide whether he would also have been expected to discern the possible application of the Smith principle to investigations conducted by a probation officer, who is in a sense a representative of and officer of the court, having a specialized function in the processes of the court, instead of a psychiatrist, who has a different function but is not an arm of the court itself.
. It is by no means clear, even now, that Smith would apply in non-capital cases where a trial judge has wide discretion to consider information in imposing sentence. See Baumann v. U.S., 692 F.2d 565, 576 (9th Cir.1982) (distinguishing Smith as involving a bifurcated death proceeding where discretion on sentencing is channelled whereas Baumann involved a “routine presentence interview[ ] conducted for the benefit of a district judge in the exercise of his substantial discretion at sentencing").
. Battie also considered a different aspect of the relationship of Smith to the state of the law before Smith was announced. The Fifth Circuit held that the ruling of Smith that the pretrial psychiatric competency examination was an official custodial interrogation of the type protected by Miranda would apply retroactively because it did not announce a new principle of constitutional law. This does not speak to the issue before us, namely whether the intersection in Smith of Miranda and capital sentencing proceedings conducted under the Georgia statutory scheme should have been anticipated by counsel in 1978.
The Eleventh Circuit has pointed out that a determination of the retroactivity of a decision is a different inquiry than the question of what counsel should have foreseen before the decision was handed down. In Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984), the court observed that different answers could be given to the questions of whether Smith applied retroactively and whether counsel should have anticipated Smith. The court contrasted Battie with the holding of the new Fifth Circuit in Gray v. Lucas, 677 F.2d 1086, 1096 n. 9 (5th Cir.1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983) that counsel was not deficient in failing to anticipate Smith. Alvord, 725 F.2d at 1293. See also Francois v. Wainwright, 741 F.2d 1275, 1285 (11th Cir.1984) (the failure to raise an issue that only later gains judicial recognition does not render counsel ineffective); Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983) (same).
Mr. James C. Bonner who had represented petitioner at the prior state habeas petition, filed the initial habeas petition in federal court. At the time the proposed amendment was filed, Ms. H. Diana Hicks represented Moore. Since Moore was represented at all times by counsel, though not by the same individual, we cannot say that the district court abused its discretion in refusing to. allow the amendment.15
. The district court stated that
Because Petitioner himself could have raised the claim on direct appeal to the Georgia Supreme Court, because he did raise it in his first state habeas petition, and because he failed to properly present the issues in his federal petition, this Court is warranted under the “abuse of the writ" doctrine to deny [this] claim.
734 F.2d at 598 (district court opinion).
. (1) Counsel’s failure to investigate and challenge the composition of the grand jury; (2) failure to inform petitioner that he could challenge the composition of the grand jury; (3) failure to investigate prejudice in the county of trial and to seek a change of venue; (4) failure to request that the district attorney’s closing arguments be transcribed; (5) use by the Georgia Supreme Court of unconstitutional cases in its appellate review; and (6) failure to follow up on investigation of the offense.
As with the proposed Hicks amendment discussed in the previous section, the first federal habeas court denied the motion to amend. See 513 F.Supp. at 806.
. Arguably, a petitioner could be considered as having proceeded pro se in his previous habeas action if his counsel performed so ineptly as to have effectively rendered him without counsel. In this case, Moore does not contend, or even suggest, that his prior habeas counsel were inept.
In a case in which counsel prosecuted the petitioner's first habeas petition so ineptly that the petitioner could be considered as having proceeded pro se, the petitioner may have little difficulty in demonstrating that his failure to include a particular claim in his first petition was justified or excusable in the circumstances. I do not, however, endorse the majority’s attempt to engraft analysis of ineffective assistance of counsel, in the sixth amendment sense, into the doctrine of abuse of the writ. In the majority’s view, for example, Moore did not abuse the Great Writ when he failed to present his Estelle v. Smith claim in his first federal habeas petition, because "[a]n attorney’s failure in 1978 to recognize the potential intersection of Miranda and Georgia capital sentencing proceedings, does not cause his performance to fall outside of 'the wide range of professionally competent assistance.’” Ante at 854 (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)).
This approach emasculates the doctrine of abuse of the writ because the failure to include *863a claim will almost always be excused. It will be excused under either of two theories, one of which will apply in nearly every case. The first excuse is that petitioner’s previous habeas attorney was ineffective; the attorney should have prosecuted the omitted claim — its legal basis being readily available — but failed to do so because of his incompetence. This incompetence, in turn, effectively rendered petitioner without counsel. Thus, in deciding whether inexcusable neglect should preclude petitioner from litigating the omitted claim in the successive petition, the district court must treat petitioner’s prior omission as that of a pro se litigant. Under the relaxed standard applicable to such litigants, the court will probably allow the petitioner to litigate his claim on the merits.
The rationale for the second excuse, contrary to that of the first excuse, assumes that the petitioner’s previous habeas attorney was not ineffective; the attorney failed to prosecute the omitted claim because its legal basis was unavailable. Under these circumstances, the court will entertain the claim because it is based on "new law.”
Following the majority’s approach, a wise petitioner will assert both theories, alternatively, in response to the state's contention that his failure to present the omitted claim earlier is inexcusable. If the petitioner satisfies the court, as Moore has satisfied the majority in this case, that his claim is founded on new law, the court must adjudicate his claim on the merits. If he fails to convince the court that his theory of relief is new — because the theory was extant at the time of the previous habeas proceeding-then, petitioner will argue, the court must find that his attorney was "ineffective.” In either case the result is the same: the court entertains the claim on the merits. The concept of inexcusable neglect ceases to exist.
The majority's approach to abuse of the writ analysis defies logic. It also lacks any support from precedent or policy. First, there is no constitutional right to effective assistance of counsel in habeas corpus proceedings. See U.S. Const. amend. VI ("/« all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”) (emphasis added); see also Daniels v. Blackburn, 763 F.2d 705, 710 (5th Cir.1985) (per curiam) ("[T]here is no constitutional right to the assistance of counsel in a collateral attack on a conviction.”); Williams v. Missouri, 640 F.2d 140, 144 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981) (“[Habeas corpus proceedings] are civil proceedings not covered by the Sixth Amendment which applies only during the pendency of the criminal case.”); Ganz v. Bensinger, 480 F.2d 88, 89 (7th Cir.1973) (sixth amendment inapplicable outside the context of criminal trial); see also Pennsylvania v. Finley, — U.S. -, -, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (no right to counsel on collateral attack).
Second, the policies of federal habeas corpus do not require that a habeas counsel’s "ineffectiveness” excuse the petitioner’s failure to present a claim in a timely manner. The petitioner has an obvious interest in the just resolution of his constitutional claims, but he does not have a constitutionally guaranteed right to effective habeas counsel. Countervailing considerations — such as finality of conviction, deterring counsel’s sandbagging of established claims, and the doctrine that a habeas petitioner must be held accountable for the actions of his attorney — outweigh the petitioner’s interest, assuming, at least, that his counsel was not so ineffective as to render his presence in the case irrelevant. Indeed, if attorney ineffectiveness constitutes an excuse for Rule 9(b) purposes, the only deterrent to the piecemeal litigation of claims will be counsel’s self-interest in avoiding a charge, brought by the lawyer prosecuting the petitioner’s successive petition, that he was professionally incompetent.
Finally, inherent in the "inexcusable neglect” standard is the notion that lawyer negligence is not a ground for excusing the failure to present a constitutional claim in a timely fashion.