concurring in part and dissenting in part, in which VANCE, Circuit Judge, joins:
This case comes before the en banc court as an appeal from the district court’s decision to deny petitioner, William Neal Moore, a writ of habeas corpus. As the majority opinion notes, the principal issue *858before the court is whether the district court properly rejected Moore’s petition as an abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases, see 28 U.S.C. § 2254 (1982). The majority holds that Moore’s failure to present his claims based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and 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), did not constitute an abuse of the writ, because Estelle v. Smith and Proffitt are “new law.” I respectfully dissent from these conclusions because a reasonably competent habeas attorney should have anticipated the holdings of Estelle v. Smith and Proffitt. I also dissent from the majority’s disposition of petitioner’s claim under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality), because Moore had a sufficient opportunity to present this claim in his first petition and because it is patently without merit. Finally, I concur in the majority’s analysis and disposition of petitioner’s remaining claims.1
I.
On May 13, 1974, a grand jury in Jefferson County, Georgia, indicted Moore for the April 2, 1974 malice murder and armed robbery of Fredger Stapleton.2 On June 4, 1974, Moore was arraigned in the Superior Court of Jefferson County and pled guilty to both 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. He waived his right to a jury determination, electing instead to be sentenced by the court.
On July 17, 1974, the court held a bench trial on the penalty issue. From the evidence adduced by the prosecution and the defense (including a presentence report, prepared by the court’s probation officer which the prosecutor had introduced into evidence without objection) the court found that Moore had committed the Stapleton murder during the course of an armed robbery, an aggravating circumstance that rendered Moore subject to the death penalty.3 The court further found that this aggravating circumstance outweighed the mitigating circumstances present in the case, and it sentenced Moore to death.
On direct appeal, the Supreme Court of Georgia affirmed Moore’s conviction and sentence. 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). Moore thereafter moved the Superior Court of Jefferson County for a new sentencing proceeding. The court denied his motion. See Moore v. State, 239 Ga. 67, 235 S.E.2d 519, cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977).4 In early 1978, Moore petitioned the Superi- or Court of Tattnall County, Georgia, for a writ of habeas corpus, presenting six *859grounds for relief.5 After an evidentiary hearing, that court rejected his petition, and the Supreme Court of Georgia refused to grant him a certificate of probable cause to appeal.
On November 22, 1978, Moore sought a writ of habeas corpus in the United States District Court for the Southern District of Georgia.6 His petition contained four of the six claims he had asserted in his state habeas petition;7 one of the claims Moore omitted was his Gardner claim — that his trial judge did not give him and his attorney an adequate opportunity to review, supplement, or correct the probation officer’s presentence report before sentencing him to death. On March 6, 1979, while his petition was pending in the district court, Moore filed a pro se motion to amend his petition to add two claims not pertinent to this appeal.8
Moore’s attorney, James C. Bonner, Jr., who had represented Moore in the state habeas court, thereafter requested and received leave to withdraw, and the district court appointed H. Diana Hicks as substitute counsel. Hicks immediately moved the court for leave to amend Moore’s petition, to present his Gardner claim.9 On April 29, 1981, the district court denied both the pro se motion and the Hicks motion 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 ground 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 all of Moore’s remaining claims, id.
The State appealed the district court’s judgment granting the writ as to Moore’s sentence, and Moore cross-appealed, challenging the district court’s rulings on the claims that the district court rejected and the court’s refusal to permit him to amend his petition. A panel of this court reversed the grant of relief, concluding that the district court had improperly engaged in a proportionality review of Moore’s sentence, Moore v. Balkcom, 716 F.2d 1511, 1518-19 (11th Cir.1983) (on rehearing), and affirmed the district court’s rejection of his remaining challenges to his guilty pleas and death sentence, id. at 1527. The panel also held that the district court did not abuse its *860discretion in refusing to grant Moore leave to amend his petition. Id. The Supreme Court 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 in the Superior Court of Butts County, Georgia. His petition contained seven claims. Moore alleged that (1) the State infringed his rights under the fifth, sixth, and fourteenth amendments when his trial judge, in deciding whether to impose the death sentence, relied on a presentence report that contained information the court’s probation officer had obtained from Moore without advising him of his rights not to submit to a presentence interview and to have counsel present during the interview (the Estelle v. Smith claim);10 (2) the pre-sentence report contained inaccurate and incomplete information, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); (3) he was denied his sixth and fourteenth amendment rights to confront the witnesses whose testimony was contained in the presentence report (the Proffitt claim); (4) because of the errors and omissions contained in the presen-tence report, he was denied the right to meaningful appellate review, in violation of Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); (5) because he lacked the specific intent to kill his victim, 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); (6) the death penalty in Georgia was being administered in a racially discriminatory manner; and (7) his trial counsel provided him ineffective assistance during the sentencing phase of his case. The superior court rejected each of Moore’s claims. The court rejected the Enmund and ineffective assistance of counsel claims because they had been fully litigated in Moore’s first state habeas proceeding and Moore gave no reason why they should be relitigated. The court held that Moore had waived his remaining claims by failing to raise them during that first proceeding. See Ga.Code Ann. § 9-14-51 (1982). On May 18, 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, the one now before us, presenting the seven claims he asserted in his second state habeas petition. Moore alleged that these claims were based on newly discovered facts (the sixth claim) or novel legal principles (the six remaining claims) that were not available when he brought his first federal habeas petition. Moore also presented his Gardner claim, which he had raised in his previous federal habeas proceeding in a motion for leave to amend his petition.
On May 22, 1984, the district court entered a memorandum order dismissing Moore’s petition and denying a certificate of probable cause. Except for the En-mund claim,11 the court held that the delayed presentation of Moore’s claims constituted an abuse of the writ; contrary to Moore’s contention, they were neither based on newly discovered facts nor on new constitutional doctrine, and he gave no lawful reason why he should not have asserted them in his previous petition. Adopting the district court’s memorandum order in full, a divided panel of this court affirmed the decision. Moore v. Zant, 734 F.2d 585 (11th Cir.1984) (per curiam).
II.
The doors of the federal courts must always remain open to state prisoners seek*861ing to bring constitutional challenges to the propriety of their confinement. See Sanders v. United States, 373 U.S. 1, 7-8, 83 S.Ct. 1068, 1072-73, 10 L.Ed.2d 148 (1963); cf. Fay v. Noia, 372 U.S. 391, 402, 83 S.Ct. 822, 829, 9 L.Ed.2d 837 (1963) (“[Government must always be accountable to the judiciary for a man’s imprisonment — ”). For this reason, the doctrine of res judicata does not apply to bar successive petitions for habeas corpus relief. Sanders, 373 U.S. at 7, 83 S.Ct. at 1072.12 Habeas corpus is, however, grounded in principles of equity. Accordingly, in deciding whether to entertain the merits of a claim contained in a successive petition, the court must consider the diligence with which the petitioner has pursued the claim. Depending upon the circumstances, a petitioner’s lack of diligence may operate as a bar to relief. Id. at 17, 83 S.Ct. at 1078 (“ ‘[A] suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.’ ”) (citation omitted).
The Supreme Court expounded upon this equitable principle in Sanders and articulated the standard a trial judge should apply in deciding whether to consider the merits of a claim that the petitioner failed to prosecute in an earlier habeas proceeding. The judge must consider the “new” claim on the merits, unless the petitioner’s delay in presenting it constitutes an abuse of the writ. Id. at 17, 83 S.Ct. at 1078. For example, the court may deem the petitioner to have waived the claim if, after raising it in a prior habeas petition, he abandoned the claim during his prosecution of that petition. Similarly, it may hold that the petitioner waived the claim if he deliberately withheld it from his prior petition with the expectation of presenting it in a subsequent petition. Id. at 18, 83 S.Ct. at 1078. As the Court noted in Sanders, these equitable bars to prosecution are unexceptionable because “[njothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.” Id. at 18, 83 S.Ct. at 1078.13
*862A petitioner may also be denied relief even though he did not deliberately bypass an opportunity to litigate his claim in the prior habeas proceeding. The court may refuse to litigate his claim on the merits if it finds that his failure to raise it in the prior proceeding was the result of “inexcusable neglect.”14 See Paprskar v. Estelle, 612 F.2d 1003, 1006 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980);15 see also Funchess v. Wainwright, 788 F.2d 1443, 1445 (11th Cir.1986) (per curiam); Stephens v. Kemp, 721 F.2d 1300, 1303 (11th Cir.1983) (per curiam), cert. denied, 469 U.S. 1043, 105 S.Ct. 530, 83 L.Ed.2d 417 (1984); Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B Feb. 1981), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981); Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir. Unit A 1980). 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 habeas judge that the delay is excusable. The sufficiency of the petitioner’s explanation is a matter committed to the judge’s sound discretion. See supra note 13.
Whether a petitioner’s failure to assert his claim in an earlier habeas proceeding is excusable will depend, of course, on the' reasonableness of his conduct under the circumstances. For example, the court may deem a pro se petitioner to have waived his claim if it can be said that a reasonable person standing in his shoes could have brought the claim.16 See Price *863v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948); Booker v. Wainwright, 764 F.2d 1371, 1376-78 (11th Cir.) (quoting Mays v. Balkcom, 631 F.2d 48, 51 (5th Cir.1980)), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); Haley, 632 F.2d at 1275-76. A petitioner represented by counsel, on the other hand, may be deemed to have waived his claim if a reasonably competent attorney could have recognized and prosecuted the claim. See Jones v. Estelle, 722 F.2d 159, 167 (5th Cir.1983) (en banc) (“Given [the] elemental role of counsel in our adversary system, we think it inevitable that the inquiry into excuse for omitting a claim from an earlier writ will differ depending on whether petitioner was represented by counsel in the earlier writ prosecution.”), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); see also Hamilton v. McCotter, 772 F.2d 171, 178-80 (5th Cir.1985). In sum, if a petitioner fails to prosecute a claim when its factual and legal bases are present, two inferences are permissible: either he is deliberately withholding the claim, perhaps with the idea of asserting it in a subsequent petition, or he is simply neglecting to pursue it.
In this case, the State contends that Moore’s failure to assert in his first petition the claims now before us was inexcus*864able. The State notes that Moore was represented by counsel throughout his collateral attacks on his convictions and death sentence, that there are no newly discovered facts in Moore’s case — the facts supporting each of his claims being well known at the time he brought his first petition — and that the federal constitutional implications of those facts were plainly discernable from the relevant case law. Moore acknowledges that there are no newly discovered facts; his disagreement with the State, the district court, and the panel concerns the legal significance of the facts.17 Moore contends that a reasonably competent lawyer, standing in the shoes of his previous habeas counsel, did not have the tools to fashion the constitutional claims, explicitly recognized in Estelle v. Smith and Proffitt, concerning the sentencing court’s receipt into evidence of the probation officer's presentence report. Moore submits that this contention, if true, constitutes a lawful excuse, which the district court and panel should have accepted as a matter of law, for the delayed assertion of these constitutional claims.
I disagree with Moore’s basic premise regarding what a reasonably competent lawyer should have recognized at the time of Moore’s first federal habeas petition. At the time Moore filed that petition, there was ample precedent for the constitutional objections Moore now makes. This point becomes clear when one analyzes the Georgia capital sentencing scheme, as it existed at the time of Moore’s sentencing proceeding; the procedures that the court, the prosecutor, and defense counsel followed in conducting that proceeding; and the constitutional precedent available to Moore when he first sought federal habeas relief. Accordingly, I find no abuse of discretion in the district court’s refusal to entertain the merits of the claims in question.
III.
Moore presents two “new law” claims in his current 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. The second 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), is that the sentencing judge denied him the right to confront and cross-examine the witnesses upon whose statements the probation officer based his presentence report. To determine whether a reasonable lawyer should have recognized these claims when Moore filed his first federal habeas petition, it is necessary to appreciate the factual context in which they arose. I therefore begin my analysis with an examination of the Georgia death penalty scheme and the manner in which the trial court, the prosecution, and the defense conducted Moore’s sentencing proceeding. In discussing Moore’s claims, we must be aware that his defense counsel did not present them to the sentencing court when given the opportunity to do so; that is, the presentence report, which Moore now contends was prepared and introduced into evidence in violation of the Constitution, was admitted into evidence without objection during an adversary proceeding.18
A.
The Georgia capital sentencing law, as it existed in 1974, was much the same as it is today.19 The Georgia legislature enacted *865this law in light of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which struck down Georgia’s previous death penalty statute. See 1974 Ga.Laws 352 (codified as amended in scattered sections of the Georgia Code); 1973 Ga.Code 159 (codified as amended in scattered sections of the Georgia Code). The new law provided for a bifurcated capital trial. The first part of the trial concerned the defendant’s guilt or innocence. The second part concerned the sentence to be imposed: death or life imprisonment.20 See Ga.Code Ann. § 27-2503(b) (Harrison 1978). As in the case of the guilt phase of the trial, the defendant in the sentencing phase was entitled to a jury proceeding. See id. The defendant could, however, waive his right to a jury in either phase of the case and elect to proceed before the trial judge.
In seeking capital punishment, the state had the burden of proving beyond a reasonable doubt that the defendant’s case was eligible for the death penalty by establishing one or more of ten statutory aggravating circumstances.21 Id. § 26-3102;22 id. § 27-2534.1(b), (c); see Gregg v. Georgia, 428 U.S. 153, 164-66, 96 S.Ct. 2909, 2921-22, 49 L.Ed.2d 859 (1976) (plurality); see also Ga.Code Ann. § 27-2537(c)(2) (Harrison 1978). The state could introduce only that evidence of aggravating circumstances of which it had notified the defendant before trial. Id. § 27-2503(a); see also Potts v. State, 241 Ga. 67, 243 S.E.2d 510, 522 (1978).
*866The defendant could avoid the imposition of the death penalty in any of three ways. The first was to convince the court on motion for directed verdict that the state’s evidence failed to establish an aggravating circumstance.23 The second was to convince the jury that the state failed to carry its burden of proof on that issue. Finally, the defendant could urge the jury not to impose the death penalty because of mitigating circumstances present in the case. Under Georgia law, the defendant had wide latitude in introducing mitigating evidence. Gregg, 428 U.S. at 164, 96 S.Ct. at 2921 (citing Brown v. State, 235 Ga. 644, 647-50, 220 S.E.2d 922, 925-26 (1975)).
The sentencing proceeding I have described was clearly adversarial. Like a criminal trial, it began with the prosecutor’s opening statement, explaining what the state must prove and how it intended to satisfy its burden. After the defense’s opening statement, which could be reserved until the close of the state’s case, the prosecution presented its evidence, which the defense was entitled to cross-examine. When the state rested its case, the defense had the right to seek a directed verdict on the aggravating circumstances issue. If the court did not direct a verdict, the defense could rebut the state's evidence of aggravating circumstances and could present mitigating evidence. The state, in turn, had the right to rebut the defendant’s case. At the close of all 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 death sentence or life imprisonment. The trial judge then imposed the sentence in accordance with the jury’s verdict. Cases tried to the court instead of to the jury followed the same procedures, except that the trial judge replaced the jury as the finder of fact and the sentencer.
B.
Moore’s 1974 sentencing hearing followed these procedures. On June 4, 1974, Moore pled guilty to the charges of malice murder and armed robbery and waived his right to jury sentencing. The court scheduled the sentencing hearing in Moore’s case for July 21,1974, and directed its probation office to prepare a presentence report.24 Following normal procedures, Probation Officer Rachels interviewed Moore, inquiring into the circumstances of the murder and armed robbery offenses he had committed and into his background. Moore contends that Rachels violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by not advising him of his rights to remain silent and to have the presence of counsel during the interview, and that Rachels violated the sixth amendment by interviewing him without notifying his attorney. For purposes of this appeal, I assume the truth of these allegations. At the same time, I note that these constitutional violations were of no consequence until Rachels’ report was received into evidence and thus made available to the trial court.
At some time prior to the sentencing hearing, the prosecutor informed Moore’s attorney that the state would seek the death penalty based on one aggravating circumstance — that Moore had committed the murder in question while he was engaged in the commission of armed robbery. At the sentencing hearing, the prosecutor presented the state’s case as if he were establishing the defendant’s guilt as well as seeking a death sentence. He called four witnesses: a medical examiner, two Georgia Bureau of Investigation agents, and the sheriff of Jefferson County, Georgia, who collectively established how Moore had committed the crimes. Moore’s trial *867counsel cross-examined each of these witnesses. In addition, the prosecutor offered the presentence report into evidence during the State’s case in chief without calling Officer Rachels to the witness stand. In offering the report, the prosecutor stated that "Counsel for the Defendant has received a copy of the report so that it will be included in the record, which includes reports and letters that have been submitted by Counsel for the Defendant.” In response, Moore’s attorney stated, “That is agreeable, Your Honor, and at the same time, we would like for a copy of the warrants to go in also.”25 The prosecutor also introduced various other exhibits, including photographs of the victim and of the crime scene, diagrams, a crime lab report, and the victim’s shotgun. Moore’s counsel expressly declined to object to the introduction of any of these exhibits, including, as I have noted, the presentence report.26 Af*868ter the State rested, the defense presented its case. Moore’s counsel called four witnesses, including the defendant, to establish mitigating circumstances.
Following a recess for lunch, the trial judge heard the arguments of the prosecution and of the defense, none of which was transcribed. After another recess, the trial judge sentenced Moore to death, finding beyond a reasonable doubt that Moore was engaged in armed robbery at the time of the murder and that there were no mitigating circumstances sufficient to outweigh this aggravating circumstance.27
*869IV.
A review of the state of the law in 1978 demonstrates that the fifth and sixth amendment claims I have described, i.e., Moore’s Estelle v. Smith and Proffitt claims, were available to a reasonably competent attorney. In the next two parts of this opinion, I discuss the specific prece-dential antecedents of Estelle v. Smith and Proffitt. Contrary to the majority’s conclusion, I believe that these antecedents provided Moore with the tools to present his fifth and sixth amendment claims in his first federal habeas corpus petition.
A.
Moore claims that the State infringed his fifth amendment right against self-incrimination and his sixth amendment right to counsel when Probation Officer Rachels interviewed him without giving him a Miranda warning and giving his counsel advance notice of the interview. These infringements subsequently operated to his detriment, Moore contends, when the trial judge relied on information contained in Rachels’ presentence report to determine his sentence. Moore alleges that he was not properly warned that he had a fifth amendment right to remain silent, or that the information he revealed could be used against him. He further alleges that he was not told of his sixth amendment right to consult with counsel. Moore argues, and the majority agrees, that he is excused from having presented these allegations in his earlier petition because the Supreme Court did not explicitly recognize that a defendant’s fifth and sixth amendment rights apply to the penalty stage of a capital proceeding until its decision in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Because I do not believe that the constitutional principles articulated in Estelle v. Smith were the type of “ ‘new’ constitutional rule[s],” Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984), that might excuse a habeas petitioner from failing to invoke them at an earlier time, I believe that Moore’s attempt now to seek relief under those principles is an abuse of the writ. See Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B Feb. 1981), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981).
In Estelle v. Smith, the trial judge, 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 penalty stage of the proceeding, the State offered the testimony of the court-appointed psychiatrist, who had examined 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, the psychiatrist testified that he believed that the defendant would always be dangerous. The jury, relying on this testimony, mandated the death penalty. See Estelle v. Smith, 451 U.S. at 456-60, 101 S.Ct. at 1870-71.
The Supreme Court, affirming a unanimous panel of the former Fifth Circuit, held that the State’s use of the psychiatrist’s testimony had violated the fifth, sixth, and fourteenth amendments. Finding the psychiatric examination analogous to the custodial interrogation in Miranda v. *870Arizona, 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 before the psychiatrist interviewed him. See Estelle v. Smith, 451 U.S. at 466-69, 101 S.Ct. at 1875-76. Furthermore, the Court unanimously concluded that under the sixth and fourteenth amendments, the psychiatric examination was a critical stage of the criminal proceeding, and thus the State should have forewarned the defendant’s attorney that the results of that examination could be used other than for a determination of his client’s competency to stand trial. Because the 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.
Subsequently, our predecessor court held that wé should apply Estelle v. Smith retroactively. See Battie v. Estelle, 655 F.2d 692, 696-99 (5th Cir.1981). The court reached this decision by relying on a two-pronged test, the first part of which is relevant to the issue presently before us. Specifically, the court stated that although “a decision which establishes a new principle of law” will be only prospectively applied, id. at 697 (emphasis added), “[a] decision which merely restates existing law or which simply applies already established law to a set of facts different from those which gave birth to the original principle is given retroactive application,” id. The former Fifth Circuit then traced the state of the law prior to Estelle v. Smith, and concluded that “the holding in Smith followed logically from the Miranda decision itself,” id. at 699, noting that both cases were “concerned with official custodial interrogations of an accused and the use of statements obtained from an accused without an attorney in such circumstances to prove the State's case against the accused.” Id. (footnote omitted). In sum, the court held that “Smith did not establish a new principle of federal constitutional law.” Id.; see also Muniz v. Procunier, 760 F.2d 588, 590 (5th Cir.) (decision of new Fifth Circuit that the Supreme Court, in Estelle v. Smith, saw the State’s conduct “as violating clearly established constitutional law”) (emphasis added), cert. denied, 474 U.S. 934, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985).
Holdings of the former Fifth Circuit are binding upon this court unless overruled by an en banc decision. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,1981). Because we took this case en banc, we have the opportunity to overrule the Battie holding if that step is desirable. I am unconvinced, however, that Battie was decided erroneously, and unlike Judge Godbold, I would therefore reaffirm its holding that Estelle v. Smith did not spring full blown and without warning into the law of criminal procedure.28 Furthermore, even ignoring Battie, an investigation of what Judge Godbold terms “the state of the law in November 1978,” see ante at 851 reveals that case law then existing “laid the basis for [Moore’s] constitutional claim.” Engle v. Isaac, 456 U.S. 107, 131, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982).
B.
The state of the law in 1978, when Moore filed his first federal habeas petition, demonstrates that he cannot be excused for having failed to recognize and allege his Estelle v. Smith claim. Estelle v. Smith was merely the refinement of constitutional principles that the Supreme Court had already established; Moore therefore had ample thread from which to weave the fifth and sixth amendment claims recognized in *871that case when he first sought federal ha-beas relief.
Fifteen years before its Estelle v. Smith decision, the Supreme Court established safeguards to protect fifth amendment rights during custodial questioning. In Miranda v. Arizona, 384 U.S. 486, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), the Court announced the well known “Miranda warning” and stated that “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Following Miranda, in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Supreme Court further extended the protection of the fifth amendment. In that case, the state argued that the right against self-incrimination should not apply in juvenile courts, because proceedings in those areas were “civil” rather than “criminal.” The Court, however, refused to accept such a mechanical view of the fifth amendment, finding it “clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” Id. at 49, 87 S.Ct. at 1455.
The Supreme Court’s expansion of the fifth amendment right against self-inerimi-nation described above, along with its decisions broadening the sixth amendment right to counsel, see, e.g., Mempa v. Rhay, 389 U.S. 128, 134-37, 88 S.Ct. 254, 256-58, 19 L.Ed.2d 336 (1967) (right to counsel applies to “every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” including sentencing and probation revocation); In re Gault, 387 U.S. at 34-42, 87 S.Ct. at 1447-51 (right to counsel during juvenile delinquency proceedings); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (plurality) (majority of Court agreeing that sixth amendment right to counsel attaches at “critical stage” of proceedings), provided Moore with the tools from which he could have crafted his claim that his fifth and sixth amendment rights attached at the penalty stage of his trial as well as at the guilt stage. I cannot agree with Judge Godbold’s view that in 1978 a reasonable attorney could not have recognized and presented a non-frivolous argument that the standards these cases established should also apply during the sentencing stage of a bifurcated capital trial.29
My conclusion is supported by two other factors especially significant in deciding whether Moore can be excused for failing to argue his Estelle v. Smith claim in his first federal habeas petition. First, Moore’s claim arose in the context of a capital case. Following the Supreme Court’s decisions in, among others, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality); and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality), a reasonable lawyer could have recognized that constitutional claims that might be unmeritorious in a non-capital proceeding could be tenable if a sentence of death was involved.30 Indeed, even before Moore *872filed his first habeas petition, the Supreme Court had explicitly recognized that a majority of its members acknowledged the special concerns of capital sentencing and agreed that “death is a different kind of punishment from any other which may be imposed in this country.” Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plurality). Second, the Court’s opinion in Gardner, decided well over a year before Moore first sought habeas relief, eliminated any doubt that a defendant’s constitutional rights apply to the sentencing stage as well as to the guilt stage of a capital case. See id. at 358, 97 S.Ct. at 1204-05 (sentencing process is a “critical stage” and it “must satisfy the requirements of the Due Process Clause”).31 With Miranda and Gardner, and the Court’s intervening decisions, a lawyer in 1978 easily could have discerned the constitutional infirmities Moore now raises.32
V.
In his second federal habeas petition, Moore also presented, for the first time in federal court, a claim that the admission into evidence of the presentence report violated his sixth amendment right to confront and cross-examine the witnesses whose statements the report memorialized. Specifically, he alleged that an opportunity to confront and cross-examine, those witnesses “could have corrected the misimpressions about his financial, military and marital circumstances, clarified the circumstances of the crime, and presented the truth about his prior juvenile record.” The majority today holds that Moore’s failure to raise this claim in his earlier petition was excused because confrontation rights were not explicitly extended to capital-sentencing proceedings until this court’s decision in Proffitt v. Wainwright, 685 F.2d 1227 *873(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). Because I believe that Proffitt, like Estelle v. Smith, did not articulate a new constitutional rule, I would affirm the district court’s judgment that Moore’s omission of this claim in his earlier petition was not excusable.
In Proffitt, the defendant submitted to examination by two psychiatrists prior to sentencing. One of the psychiatrists was subsequently unable to attend the defendant’s sentencing hearing before the trial judge, and 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 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). 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 Prof-fitt was entitled, under the sixth amendment, to cross-examine the psychiatrist at his sentencing hearing. Id. at 1255.
Proffitt was presaged by a long line of cases extending sixth amendment protections in a variety of contexts, as well as by cases addressing the special safeguards constitutionally mandated in capital cases. In 1965, the Supreme Court held that the sixth amendment secures the right to cross-examine adverse witnesses in state criminal proceedings. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The High Court has repeatedly 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. 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 noted in Proffitt, 685 F.2d at 1252 (citations omitted), the right to cross-examination only applies to “critical stages of the trial.” During the 1960s and 1970s, the extent to which various phases in the criminal process, including sentencing hearings, constituted “critical stages” for purposes of the sixth amendment was an unsettled question. See, e.g., United States v. Fatico, 579 F.2d 707, 713-14 (2d Cir.1978); Taparauskas, An Argument for Confrontation at Sentencing: Bringing the Offender into the Sentencing Process, 8 Cumb.L.Rev. 403, 426-40 (1977); Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex.L.Rev. 1, 1-6 (1968).
Although the law in this field was in a state of disarray, the clear trend was toward expanding the full panoply of sixth amendment rights, including the confrontation rights. See, e.g., Clements v. Turner, 364 F.Supp. 270, 275 (D.Utah 1973); Taparauskas, supra, p. 873, at 426-40 (discussing trend toward expanded right to confrontation). For example, in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Supreme Court recognized the sixth amendment right to counsel in a sentencing and probation revocation hearing, noting as follows:
There was no occasion in Gideon [v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963),] to enumerate the various stages in a criminal proceeding at which counsel was required, but [several Supreme Court cases] clearly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. In particular, [Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948),] illus*874trates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to counsel applies at sentencing. Many lower courts have concluded that the Sixth Amendment right to counsel extends to sentencing in federal cases.
Mempa, 389 U.S. at 134, 88 S.Ct. at 256-57 (citations and footnotes omitted). In Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), the Supreme Court noted that parole revocation— unlike sentencing — “is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Nonetheless, the Court held that due process requires that parolees in these proceedings receive an array of procedural protections, including “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 489, 92 S.Ct. at 2604; see Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973) (applying Morrissey to probation revocation proceedings).
By themselves, these cases probably foreshadowed our court’s holding in Prof-fitt and provided a reasonable basis for the confrontation clause claim Moore seeks to present at this time. Indeed, this type of claim was recognized by many commentators and attorneys well before Moore filed his first federal habeas corpus petition in late 1978. See, e.g., United States v. Fischer, 381 F.2d 509, 511 (2d Cir.1967) (rejecting petitioner’s confrontation clause claim involving non-capital sentencing hearing, but acknowledging that “there is a certain amount of persuasiveness to his argument”), cert. denied, 390 U.S. 973, 88 S.Ct. 1064, 19 L.Ed.2d 1185 (1968); People v. Perry, 36 N.Y.2d 114, 119, 324 N.E.2d 878, 880, 365 N.Y.S.2d 518, 520-21 (1975) (noting and rejecting defendants’ confrontation clause challenge involving non-capital sentencing); State v. Short, 12 Wash. App. 125, 528 P.2d 480, 483-84 (1974) (same), review denied, 85 Wash.2d 1002 (1975); Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex.L.Rev. 1, 1-16 (1968) (viewing Mempa v. Rhay as the precursor to expanded constitutional protections at the sentencing stage of criminal trials); Taparauskas, An Argument for Confrontation at Sentencing: Bringing the Offender into the Sentencing Process, 8 Cumb.L.Rev. 403, 426-38 (1977) (contending that Supreme Court decisions of the 1960s and 1970s foreshadowed the extension of confrontation rights to sentencing); see also Clements v. Turner, 364 F.Supp. 270, 275 (D.Utah 1973) (“On the heels of [Mempa v. Rhay,] which held that appointed counsel is required in deferred sentencing situations, has come an expansion of the right to counsel beyond even the broad limits placed upon it in that case and an expanded application of the procedural safeguards of notice, hearing, confrontation and cross-examination in the context of post-conviction proceedings.”); State v. Ortez, 60 Haw. 107, 588 P.2d 898, 908 (1978) (noting that defendant had made no request for confrontation and cross-examination at sentencing proceeding); ABA Standards Relating to the Administration of Criminal Justice, Sentencing Alternatives and Procedures 348, 367 (Comp.1974) (discussing right to confrontation at sentencing), cited in Taparauskas, supra p. 873, at 439-40.33
Even if these lower court cases, commentaries, and arguments of counsel, along with the Supreme Court’s decisions in Mempa, Morrissey, and Gagnon, were not sufficient by themselves to provide any reasonable attorney with the tools to fashion a Proffitt claim, two additional factors compel the conclusion that a Proffitt claim was available in 1978. As I noted in discussing Moore’s Estelle v. Smith claim, see supra Part IV.B., Moore’s habeas attorney should also have been prompted to raise a Proffitt claim (1) because Moore was con*875victed of a capital crime and (2) because the Supreme Court handed down Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), more than one year before Moore brought his habeas petition in federal court.
In light of the special nature of capital punishment, a reasonable attorney would have been more likely to press a confrontation clause argument with regard to capital sentencing than with regard to non-capital sentencing. See supra Part IV.B. Given the consequences of a capital sentencing proceeding, Moore could readily have argued that he must have the right to cross-examine a witness whose testimony might determine whether he receives the death penalty or life imprisonment. Moreover, Gardner invited this claim through its careful reading of the 1949 decision in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Williams held that due process does not require confrontation and cross-examination protections during sentencing proceedings, at least when no objection was made on this ground and background information in the defendant’s presentence report was disclosed to the defendant during the proceeding. Id.; see also Gardner, 430 U.S. at 355-56, 97 S.Ct. at 1203-04 (plurality). Significantly, Gardner noted that the constitutional protections applicable to capital sentencing were evolving, a fact recognized in Williams. See Gardner, 430 U.S. at 356-57, 97 S.Ct. at 1204 (quoting Williams, 337 U.S. at 247-48, 69 S.Ct. at 1083); see also Note, Gardner v. Florida: The Application of Due Process to Sentencing Procedures, 63 Va.L.Rev. 1281, 1283 (1977) (hereinafter Note, Due Process in Sentencing). The Court in Gardner then proceeded to discuss cases recognizing the unique nature of capital punishment, and the post-Williams cases — including Mempa — that extended due process protections to sentencing. In light of this discussion in Gardner, and its holding that due process requires that defendants be given an opportunity to explain, rebut, or deny information contained in presentence reports, Gardner, 430 U.S. at 362, 97 S.Ct. at 1207, a confrontation clause challenge to capital-sentencing proceedings should have been obvious to any reasonably competent attorney.34 See Note, Due Process in Sentencing, supra, at 1291 (discussing confrontation and cross-examination as rights that Gardner may mandate in capital-sentencing proceedings). Thus, I respectfully dissent from the majority’s holding that Moore’s Proffitt claim is novel.
VI.
Finally, I write separately with regard to the majority’s analysis of petitioner’s claim based on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, .51 L.Ed.2d 393 (1977). Moore’s claim is that his sentencing judge imposed the death penalty in part based on a presentence report that petitioner and his counsel did not have “any meaningful opportunity to review, correct or supplement,” in violation of the eighth and fourteenth amendments. As the majority notes, this claim is obviously not based on any new legal development, because Gardner was decided before Moore filed his first federal habeas petition. In fact, Moore presented this claim in his first state habeas petition (in 1978), and the state court rejected the claim on the merits, finding that Moore’s trial counsel had received a copy of the presentence report prior to his sentencing hearing.
When Moore brought his first federal habeas petition, on November 22, 1978, he did not include a Gardner claim. This omission appears to have been deliberate, and not an oversight, because the claim is noted in the procedural history portion of that petition and because Moore was represented by the attorney, James C. Bonner, Jr., who had prosecuted his state collateral *876attack. Moore did not seek to add his Gardner claim to his petition until October 1, 1980, when his newly appointed substitute counsel sought leave to amend his petition. The district court denied Moore’s motion for leave to amend his petition to add the Gardner claim, citing his delay in bringing the claim to federal court, his explicit reference to the claim, in the procedural portion of his original petition (which indicated that he was fully aware of it when he filed that petition), and his continuous representation by counsel during his state and federal collateral attacks. Blake v. Zant, 513 F.Supp. 772, 805 (S.D.Ga.1981). Another ground upon which the district court relied in denying Moore’s motion to amend was that his Gardner claim was meritless:
[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). Although the district court did not couch this finding as an alternative basis for rejecting Moore’s Gardner claim, it clearly viewed that claim as having been fully and correctly litigated in the state court. Moreover, it noted that Moore admittedly could produce no evidence to cast any doubt on the state court’s disposition.35
In these circumstances, I believe we should view the district court’s denial of Moore’s motion to amend his habeas petition to add his Gardner claim as a disposition on the merits. Accordingly, we can treat his attempt to raise this claim anew as a successive petition. Because Moore has presented no reason why he is entitled to relitigate his Gardner claim, the claim should be denied as successive pursuant to Rule 9(b) of the Rules Governing Section 2254 Cases, see 28 U.S.C. § 2254 (1982).36
Alternatively, I believe we can affirm the dismissal of Moore’s Gardner claim on the ground that it is conclusively without merit. As the Supreme Court noted in Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (citations omitted), the abuse of the writ rules “are not operative in cases where the sec*877ond or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. In such a case the application should be denied without a hearing.”
For the reasons described herein, I would affirm the district court’s dismissal of the petitioner’s Gardner claim.
VII.
In sum, I respectfully dissent from the majority’s analysis and disposition of Moore’s Estelle v. Smith and Proffitt claims. In my view, these claims are not based on “new law,” excusing his failure to present them in his first federal habeas petition; the district court acted well within its lawful discretion in concluding that Moore’s lack of diligence in prosecuting the claims constituted an abuse of the writ. I also dissent from the court’s disposition of Moore’s Gardner claim, for the reasons expressed herein. Finally, I fully concur in the majority’s disposition of Moore’s remaining claims.
. Petitioner’s remaining claims concern the ineffectiveness of trial counsel during the sentencing phase of his case and the alleged racially discriminatory application of the death penalty in Georgia. The district court dismissed both of these claims as an abuse of the writ.
. The facts underlying 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).
. See Ga.Code Ann. § 27-2534.1(b)(2) (Harrison 1978); see also infra note 21.
.Moore contended that he was entitled to a new sentencing proceeding on two grounds: (1) the court had imposed the death penalty under "a mistaken belief that such sentence would never be upheld by the U.S. Supreme Court,” and (2) the court, in deciding to impose the death penalty, had relied on information (contained in the probation officer's presentence report) which Moore "had no opportunity to deny or explain" (the Gardner claim). See Moore v. State, 235 S.E.2d at 519. The Supreme Court of Georgia affirmed the trial court’s denial of Moore’s motion for a new sentencing proceeding on the ground that a habeas corpus action was the sole avenue for such relief. Id.
. In his habeas petition, Moore claimed that his conviction and sentence violated the eighth amendment proscription against cruel and unusual punishment and the due process clause of the fourteenth amendment for the following reasons: (1) his prior arrest record was presented to the sentencing judge in a presentence report "without the Petitioner or his counsel being afforded a fair opportunity to explain or rebut it” (the Gardner claim); (2) his direct appeal to the Supreme Court of Georgia was not properly conducted, because the prosecutor’s arguments at the close of the sentencing proceeding were not transcribed and included in the record on appeal; (3) a brutal murder of an elderly couple in rural Jefferson County that occurred shortly before Moore was indicted improperly influenced the district attorney and the trial judge in Moore’s case; (4) his guilty plea to malice murder was involuntary and unintelligent because he lacked specific intent to kill his victim; (5) his sentence was disproportionate, given the mitigating circumstances present in his case; and (6) he never voluntarily waived his absolute right under Georgia law, see Ga. Code Ann. § 27-1404 (1933) (current version at Ga.Code Ann. § 17-7-93 (1982)), to withdraw his two guilty pleas prior to the court’s entry of judgment against him.
. The discussion in the text omits reference to a federal habeas petition that Moore filed earlier in 1978 and then voluntarily dismissed without prejudice after the Supreme Court of Georgia granted a stay of his execution. That aborted petition has no relevance to this appeal.
. Moore’s federal petition contained claims two, four, five, and six of his state habeas petition. See supra note 5. Although his federal petition recited the facts underpinning claim one of his state habeas petition (the Gardner claim), it did not present that claim as a ground for relief.
. Moore’s pro se amendment alleged that his trial attorney provided him ineffective assistance of counsel because he (1) failed to investigate and challenge the composition of Moore’s grand jury; (2) failed to inform Moore that he could challenge the grand jury; (3) failed to seek a change of venue for Moore’s trial; and (4) failed to request that counsel’s closing arguments to the sentencing judge be transcribed for review on appeal. Moore also alleged that the Supreme Court of Georgia relied on ‘‘[ujnconsti-tutional cases ... in comparing his] death sentence [to prior cases]."
. Hicks’ proposed amendment, which was filed on October 1, 1980, included still other claims not relevant to this appeal.
. The Estelle v. Smith claim actually consists of two claims, one based on the fifth and fourteenth amendments and another based on the sixth and fourteenth amendments. Throughout this opinion, I frequently refer to these claims as the Estelle v. Smith claim and, for convenience, omit reference to the fourteenth amendment.
. The district court, observing that it had rejected the Enmund claim on the merits in Moore’s previous' federal habeas proceeding, held that the claim was meritless and that the ends of justice did not require its relitigation.
. Even though the federal courts may have previously rejected the petitioner’s claim on the merits, a habeas judge will entertain it if the petitioner establishes that the ends of justice would be served by relitigation of the claim. Sanders, 373 U.S. at 16, 83 S.Ct. at 1078. The Sanders Court elaborated on this "ends of justice” test as follows:
If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair.... If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Two further points should be noted. First, the foregoing enumeration is not intended to be exhaustive; the test is "the ends of justice” and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground.
Id. at 16-17, 83 S.Ct. at 1078 (citation omitted). For further discussion of the standard applicable to successive petitions, see Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Although Sanders involved habeas corpus relief for federal prisoners, its standards apply to habeas corpus cases brought by state prisoners.
. Congress codified the general principles of Sanders in Rule 9(b) of the Rules Governing Section 2254 Cases (hereinafter Rule 9(b)), see 28 U.S.C. § 2254 (1982); see abo 28 U.S.C. § 2244(b) (1982). Rule 9(b) provides as follows:
A second or successive petition may be dismissed if the judge finds that it 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, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
The initial burden of pleading an abuse of the writ under Rule 9(b) rests on the state, see Sanders, 373 U.S. at 17, 83 S.Ct. at 1078; Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948), although a district court may raise the issue sua sponte, see Jones v. Estelle, 722 F,2d 159, 164 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984). Once the abuse of the writ issue has been raised, the petitioner “has the burden of answering that allegation and of proving that he has not abused the writ.” Price, 334 U.S. at 292, 68 S.Ct. at 1063; see also Funchess v. Wainwright, 788 F.2d 1443, 1445 (11th Cir.1986) (per curiam); Jones v. Estelle, 722 F.2d at 164. As the Supreme Court noted in Sanders, *862"[t]he principles [for determining an abuse of the writ] are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.” Sanders, 373 U.S. at 18, 83 S.Ct. at 1079; see also Jones v. Estelle, 722 F.2d at 165.
.Equity has never countenanced contumacious conduct. Thus, a federal court will not entertain a claim that the petitioner deliberately withheld — or, if asserted, deliberately withdrew — with the idea of bringing it later if his attempt to obtain habeas relief is unsuccessful. Nor will equity countenance inexcusable neglect. If the petitioner possessed the ingredients of his claim (the facts and the law) but simply neglected to bring it in his prior petition, a federal court, pursuant to Rule 9(b), may decline to consider the claim. There are sound policy reasons for this rule: (1) the need for finality of state court convictions; (2) the need to aid enforcement of state procedural rules barring the consideration on the merits of claims not seasonably presented (when the state has declined to decide the claim on the merits' because of petitioner’s procedural default); (3) the federal courts constitute a scarce resource and thus piecemeal litigation, which needlessly taxes the courts’ dockets and prevents other litigants from having a speedy determination of their claims, should be avoided; and (4) federal court consideration of successive petitions harasses the state. See Haley v. Estelle, 632 F.2d 1273, 1276 (5th Cir. Unit A 1980) ("Rule 9(b) was intended to eliminate the repetition of identical claims and the prolongation of litigation by the presentation of claims in a piecemeal fashion.”); Rule 9(b) advisory committee’s note ("This subdivison is aimed at screening out the abusive petitions from [the] large volume [of second petitions], so that the more meritorious petitions can get quicker and fuller consideration.”).
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. Moore’s disagreement with the State on the "new law” point concerns his Estelle v. Smith and Proffitt claims. I discuss the parties’ dispute over Moore’s Gardner claim in Part VI infra.
. Moore’s failure to object at the sentencing hearing may constitute a procedural default. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This issue is, however, not before the court.
.The statutory citations in Part III of my opinion are to the provisions that were in effect at the time of Moore’s trial in 1974. These provisions continue in force with few substantive changes, none of which are relevant here.
. The Supreme Court, in Gregg v. Georgia, 428 U.S. 153, 163-64, 96 S.Ct. 2909, 2920-21, 49 L.Ed.2d 859 (1976) (plurality), viewed this sentencing phase as an integral part of the trial of a death penalty case.
. The ten statutory aggravating circumstances enumerated in section 27-2534.1(b) were as follows:
(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
.Section 26-3102 stated as follows:
Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. The provisions of this section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty.
. The trial judge’s determination as to the sufficiency of the evidence supporting the aggravating circumstances was subject to judicial review. See Ga.Code Ann. § 27-2537(c)(2) (Harrison 1978).
. Georgia law authorized trial judges to request a presentence report in all criminal cases, except those involving offenses punishable by death or life imprisonment, for the purpose of determining whether to place the defendant on probation and the conditions of his probation supervision. Ga.Code Ann. § 27-2709 (Harrison 1978). The record does not disclose why the court disregarded this statutory prohibition in this case.
. This statement by Moore’s attorney, considered in light of the evidentiary record of Moore’s first state habeas proceeding, which contains, among other things, a statement by Officer Rachels that he gave Moore’s attorney a copy of the presentence report on the day of the sentencing hearing, convinces me, as it did the state habeas court and the district court below, see infra Part VI, that Moore’s Gardner claim is baseless. Contrary to Moore’s present allegations, his attorney had an opportunity to inspect the presentence report before the prosecutor offered it into evidence and to object if he thought that the report contained inaccurate statements or material omissions. To me, this fact explains why counsel did not object to the report on the ground that he had not seen it or, having seen it, had not had sufficient time to consult with his client about any inaccuracy in the report.
In fact, the record unequivocally demonstrates that defense counsel communicated with Officer Rachels concerning the presentence report on several occasions prior to the sentencing hearing, and that he furnished Rachels with several letters vouching for Moore’s character and various records of Moore’s previous academic achievements. Apparently as a matter of strategy, Moore's attorney chose to present this mitigating evidence to the trial judge through the probation officer’s presentence report rather than through the live testimony of witnesses. This strategy may account for the failure of defense counsel to invoke the well-established evidentiary rules discussed infra note 26 and to object to the report’s admission into evidence. Perhaps, the same strategy also explains why defense counsel did not object to the report on the fifth and sixth amendment grounds Moore now asserts. In pursuing this strategy, counsel must have appreciated the fact that the report’s description of the murder and armed robbery simply replicated the facts the prosecutor established at the sentencing hearing and thus caused Moore no prejudice.
. When the prosecutor offered the presentence report, Moore’s attorney, if he wished to preclude the court from using it, could have objected to the report’s admission into evidence on the ground that the report had not been authenticated by the probation officer who prepared it. This objection would have been well founded and would have prompted the prosecutor to call Officer Rachels to the stand. Even had the State authenticated the report by live testimony, the defense still could have prevented the report from being received into evidence. The defense could have established that the report was not admissible because it was merely a recording of Rachels’ present recollection, and that if the prosecutor wanted to bring the contents of the report before the court he would have to do so through Rachels’ live testimony, albeit refreshed by reference to the report. Assuming the validity of this argument, which had solid support in the law of evidence, see G. Lilly, An Introduction to the Law of Evidence 231-32 (1978); see also McCormick on Evidence § 9 (E. Cleary 2d ed. 1972), the prosecutor would have proceeded to elicit from Rachels what he had learned concerning the circumstances of both the murder and the armed robbery and of Moore’s background. Any statements Moore had given Ra-chels would have constituted admissions and thus would not have been precluded by the hearsay rule. These statements would have been subject to objection, however, on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and sixth amendment grounds — the argument being that Officer Ra-chels, in interviewing Moore and particularly in focusing on how the crimes were committed, occupied a position similar to that of a police officer interrogating a defendant in custody during a critical stage of his criminal proceedings. Because Rachels had not given Moore a Miranda warning and had not notified Moore’s lawyer before commencing the interview, the defense could have urged the court to suppress any information Rachels obtained from Moore. Further, the defense could have objected to any background information Rachels may have obtained from sources other than Moore as hearsay, if offered to prove the truth of the contents, and on confrontation clause grounds.
In sum, Moore's attorney could have kept the entire presentence report, as a document, out of evidence on obvious evidentiary grounds. As for Officer Rachels’ testimony concerning the substance of the report, Moore’s attorney could have made good faith objections (1) on Miranda or right to counsel grounds to any statements Moore made to Rachels and to any information *868derived from those statements, and (2) on confrontation clause grounds to any statements Ra-chels obtained from other sources if offered to prove the truth of their contents. The requirement that the sentencing decisionmaker find at least one statutory aggravating circumstance beyond a reasonable doubt, in my view, means that the full panoply of constitutional protections available during the prosecution of a criminal case applied to the sentencing phase of capital cases in Georgia in 1974, and thus to the sentencing phase of Moore’s case. These rights included the rights implicated in Moore’s Estelle v. Smith and Proffitt claims: the fifth amendment right not to be compelled to incriminate oneself, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); the sixth amendment right to counsel, see Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); and the sixth amendment right to confront and cross-examine the prosecution’s witnesses, 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). Having created an adversary criminal proceeding in which the factfinder must find an aggravating circumstance beyond a reasonable doubt, as a condition precedent to the imposition of the death penalty, Georgia would have violated the Constitution if, during the sentencing phase of a capital trial, it denied the defendant the rights the Constitution guaranteed him during the guilt phase of the prosecution. Cf. Gardner v. Florida, 430 U.S. 349, 360, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1977) (plurality) ("Our belief that debate between adversaries is often essential to the truth-seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.”); Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975) (noting importance of advocacy of counsel in the factfinding process of criminal trials). The conduct of the court and of counsel during the prosecution of Moore’s case supports my view that Georgia's capital sentencing scheme accommodated these basic constitutional rights, including the specific constitutional rights concerning the presentence report Moore seeks to enforce in the present habeas proceeding. If Moore's trial attorney could have made these arguments at the July 1974 sentencing hearing, it logically follows that his habeas attorney could have presented them when he filed Moore's first federal habeas petition in November 1978, particularly given the state of the law in 1978. See infra parts IV and V.
. The court made the following findings:
On the question of punishment, prior to the imposition of the death penalty, one statutory aggravating circumstance is found by the Court to exist, to wit: the murder of Fredger Stapleton was committed while the accused, William Neal Moore, was engaged in the commission of another capital felony, that is, armed robbery of the said Fredger Stapleton. Also, I find that the armed robbery of Fredger Stapleton was committed while the accused, William Neal Moore, was engaged in the commission of another capital felony, that is murder of the said Fredger Stapleton.
The death penalty statute of Georgia, Code section twenty-seven, twenty-five thirty-four point one, requiring proof of aggravating circumstances to justify the imposition of the death penalty was enacted by the General Assembly of Georgia, signed into law by the Governor of Georgia, and held to be constitutional by the Supreme Court of Georgia in Coley versus the State, two thirty-one Georgia, eight twenty-nine. It is therefore the function of this Court to apply this statute to the facts of this case in determining the punishment to be imposed. This I have done.
IT IS FURTHER ordered and adjudged by the Court that on the thirteenth day of September nineteen seventy-four, the defendant, William Neal Moore, shall be executed by the Director of the State Department of Corrections at such penal institution as may be designated by said Director....
SO, I FOUND aggravating circumstances. I also found, but I didn’t need to find, for purposes of this finding, mitigating circumstances insofar as the aggravating circumstances were concerned. Mitigating means good circumstances, those being your willingness and your forthrightness in meeting what must be to you a terrible, terrible experience. So that does go to your credit, but for the purposes of this Court, for this finding, I could not in good conscience apply in your case sufficient to wipe out the aggravating statutory circumstances. We’ve got this. If we’re going to philosophy [sic] about it, and if I’m permitted to do that, I'll do it. People in their homes — the most precious place a man *869can have — is his home; and to be in a home, and probably this man was asleep, I don’t know, or for any person to be, not this man, but any person, to be asleep in his home, to be invaded by an intruder, that’s armed with weapons, that’s prepared necessarily to kill (or otherwise the weapon wouldn't be there in the hands of the intruder), is probably an invasion of the highest injustice that another can do. Now, I can only imagine that anyone that is invaded by an intruder with an armed weapon, the fear that they must go through when they are encountered in such a situation. So, I feel like that if the Court ever does require mandatory punishment — that is when they specify by law what offenses will have to be suffered by the electric chair — that one of these statutory offenses probably will be that when a person is robbed and killed in his home, that mandatory, as contrasted to discretionary, statutory aggravated circumstances will probably warrant the electric chair without life imprisonment. That justifies me in making the finding that I made.
. Judge Godbold’s limited discussion of Battie fails to distinguish adequately the question decided in that case from the one we face today. I think it is clear that if we adopt Judge Godbold's argument, we eliminate the foundation of Bat-tie. If Judge Godbold in fact means that the Supreme Court's decision in Estelle v. Smith was so unexpected, and such a clear break with the past, that a reasonable lawyer lacked the "tools” to raise such a claim, then I submit that this court is obligated to reconsider our precedent holding Estelle v. Smith retroactive. See Allen v. Hardy, — U.S. -, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (new constitutional standards rarely applied retroactively).
. Judge Godbold, in stating that a reasonably competent attorney could not have anticipated the application of the fifth and sixth amendments in the Estelle v. Smith factual context, implies that such an attorney would have had even more difficulty anticipating the application of those principles in the factual context presented in this case. See ante at 853 n. 10. I disagree. The applicability of the Estelle v. Smith principles to a probation officer’s interview of the defendant is more obvious than is the applicability of those principles to a psychiatric interview of the defendant. The probation officer in this case was acting as would a policeman. He questioned the defendant during a critical stage of the criminal proceeding, and the primary focus of the interview was to elicit from the defendant precisely how he committed the murder and armed robbery of the victim.
. I do not mean to argue that the rights affirmed in Estelle v. Smith apply only when a defendant faces capital punishment. The Estelle v. Smith Court rested its decision solely on the fifth and sixth amendments (as applied to the states through the fourteenth amendment), not on the eighth amendment (as applied through the fourteenth amendment). See Estelle v. *872Smith, 451 U.S. at 473, 101 S.Ct. at 1878; Battie v. Estelle, 655 F.2d 692, 700 n. 17 (5th Cir.1981). My discussion in the text is merely meant to point out that an attorney in 1978, recognizing that the law regarding capital sentencing was in flux, might have been especially likely to foresee the explicit application of certain constitutional safeguards to the penalty stage of a bifurcated capital proceeding.
. Judge Godbold attempts to distinguish Gardner's importance by noting that it was a plurality opinion. First, five justices agreed that the defendant in Gardner was entitled to constitutional protections, other' than those derived from the eighth amendment, during the sentencing phase of his trial. Second, the entire thrust of the "new law” exception to the abuse of the writ doctrine is to excuse claims based on "unanticipated” changes in the law, not to allow a petitioner to sit back and ignore his nascent claims until a majority of the Supreme Court announces a favorable decision. Thus, the number of justices who explicitly ascribed to that portion of Gardner relevant to this case is of no significance. For the "novelty" argument, the point is that the Court had explicitly given lawyers a powerful tool to build constitutional arguments for actions relating to sentencing.
. As I demonstrated in the text, by 1978 a reasonable lawyer had the tools from which he could construct the Estelle v. Smith claim that Moore now seeks to assert in his successive petition. Even if the petitioner in Estelle v. Smith was the very first person actually to litigate his type of claim, Moore would still be unable to argue "novelty" to excuse his failure earlier to raise his claim. The fact of the matter, however, is that before Moore brought his first federal habeas petition on November 22, 1978, litigants had already raised similar claims in other criminal cases. See Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977) (district court decision in case upon which Moore rests his claim decided nearly one year before Moore filed his federal habeas petition), aff’d, 602 F.2d 694 (5th Cir.1979), aff’d, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Livingston v. State, 542 S.W.2d 655, 661-62 (Tex.Crim.App.1976) (addressing contention that testimony by state appointed psychiatrists at penalty stage of capital trial, based on interview with defendant, violated federal Constitution), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Armstrong v. State, 502 S.W.2d 731, 734-35 (Tex.Crim.App.1973) (same). Although the Texas state court decisions had rejected the claim the Supreme Court later upheld in Estelle v. Smith, this result does not excuse Moore’s failure to raise a similar claim in his first federal habeas petition. Given that previous state court rulings contrary to a defendant's federal claim do not excuse his failure to object timely during his state court proceedings, see Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982), surely such rulings cannot excuse a petitioner’s failure to raise those claims in a federal forum. Thus, the state court rulings' cited above are significant not for their holdings, but because they evince other defendants’ recognition — prior to Estelle v. Smith — that the state’s use of certain evidence in sentencing a defendant was susceptible to a constitutional challenge.
. My comments in note 32 supra apply with equal force to the discussion in this portion of my opinion.
. Moreover, Moore’s counsel during his first state and first federal collateral attacks was aware of Gardner and presented a Gardner claim to the state court, claiming that Moore was not given an opportunity to deny or rebut material his presentence report contained. See infra Part VI. Surely Moore’s counsel could have gone one step further and contended that Moore’s sixth amendment rights were violated because he was not given an opportunity to confront and cross-examine witnesses whose statements were included in the report.
. On appeal, a panel of this court affirmed the district court’s denial of Moore’s motion to amend, concluding that the district court did not abuse its discretion. Moore v. Balkcom, 716 F.2d 1511, 1526-27 (11th Cir.1983) (on rehearing), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984). The panel did not discuss the district court’s treatment of the merits of Moore’s Gardner claim.
. The Supreme Court has recently had occasion to examine and refine the standards governing successive federal habeas corpus petitions, i.e., petitions presenting claims that have already been litigated in a prior federal proceeding. Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). In Kuhl-mann, a four-justice plurality of the Court concluded that the "ends of justice” mandate consideration of successive petitions only when the petitioner "supplements his constitutional claim with a colorable showing of factual innocence." Id. at-, 106 S.Ct. at 2627. Three other justices expressed the view that a colorable claim of factual innocence is not essential to establish that the "ends of justice" warrant reconsideration of a petitioner's previously decided claim. Id. at-, 106 S.Ct. at 2634-35 (Brennan, J., joined by Marshall, J., dissenting); id. at-, 106 S.Ct. at 2639 (Stevens, J., dissenting). The two remaining justices, Justices Blackmun and White, concurred in the Court’s alternative holding, id. at-, 106 S.Ct. at 2628-31 (rejecting petitioner's successive claim on the merits), and expressed no view on the need for a colorable claim of factual innocence in a successive habe-as petition. Thus, Kuhlmann leaves open the proper standard governing successive petitions. In this case, we need not decide whether a colorable claim of factual innocence is an essential prerequisite to a successive habeas petition. Regardless of whether that showing is necessary, Moore’s successive Gardner claim should not be entertained, because he does not present any new facts or legal developments warranting relitigation of the claim.