specially concurring:
I concur in the result reached by the in banc court, but for different reasons. The Supreme Court remanded this case for reconsideration under the principles set forth in Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). I think the court should address the question posed by the Supreme Court on remand: How does the Teague decision affect the decision in this case? The court should answer this question even if it does then change the prior analysis of the abuse of the writ without regard to Teague.
The Supreme Court remand affords this Court the opportunity to determine if a Teague analysis would make it unnecessary to reach the abuse of the writ defense, or to consider how Teague might affect our abuse of the writ decision. We should make that determination. The decision not to reach Teague because of our abuse of the writ decision does not respond to the Supreme Court’s remand.
Teague questions whether you would reach the merits of the issues asserted. As Judge Cox has pointed out, on a second petition alleging claims not previously asserted, the petition may be dismissed without resort to an abuse of the writ defense, if the records and pleadings show that the claim is without merit. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Stephens v. Kemp, 721 F.2d 1300 (11th Cir.1983), cert. denied, 469 U.S. 1043, 105 S.Ct. 530, 83 L.Ed.2d 417 (1984). If under Teague, the merits of an issue would not be reached, the petition can be dismissed without getting to the abuse of the writ defense. This is precisely the way the prior opinion of this court and the present opinion handle the discriminatory application of the death penalty argument.
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, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
Moore v. Kemp, 824 F.2d 847, 857 (11th Cir.1987). See footnote 16 in Judge Cox’s opinion.
Thus, on any second petition for habeas corpus relief, before reaching the abuse of the writ issue, a court could look at the new claims asserted in the light of Teague. The court would determine if the claim asserted would establish a new principle of law that has not been applied previously to the facts alleged, and if so, whether that principle falls into the category of procedural rules which under Teague would not be applied retroactively to all similarly situated defendants. If the rule would not be so applied, the petition should be dismissed without reaching the merits and without regard to whether there was in fact an abuse of the writ.
The in banc court should approach this remand in that way. I realize that if the court followed this analysis, and if it reached the same conclusion which I reach, it would not be necessary to revisit the abuse of the writ issue and might deprive the court of the opportunity to reject the reasoning of the prior in banc opinion. This could be dealt with as an alternative holding, however, as we often do when we are trying to decide all issues so that a reversal in part would not require reconsideration by the in banc court. If the court disagreed with my Teague analysis, then it would be within its authority to review and *1515change its prior decision as to the abuse of the writ standard. I would suggest that because this case has been pending so long, the court ought to try to wrap it all up in this decision.
Different judges will, of course, interpret Teague in different ways until the contours of that decision have been developed by the Supreme Court. It appears to me that Teague did two things: first, it instructed the courts on a new procedure as to the timing of a decision that a new constitutional principle will be applied retroactively. Heretofore, whether a decision is to apply retroactively to habeas corpus petitioners has been made after the principle has been announced in a habeas corpus case. Always the petitioner involved received the benefit of the rule, but it was left to a later case to determine whether it would be available to other defendants in a collateral attack on a final conviction. Teague holds that a court should first determine whether a new principle espoused by a habeas corpus petitioner would be applied to other habeas corpus petitioners. If it would not be so applied, then the court should not consider whether to adopt such a principle.
Second, the Court set forth the standard by which to judge which principles would be given retroactive effect to habeas corpus petitioners. Noting that the Court has made a distinction between direct review and collateral review for retroactivity of new principles, the Court adopted Justice Harlan’s view of retroactivity for cases on collateral review.
First, a new rule should be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of criminal law-making authority to proscribe.” Mackey [v. U.S.], 401 U.S. [667], at 692 [91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 1971] (separate opinion). Second, a new rule should be applied retroactively if it requires the observance of “those procedures that ... are ‘implicit in the concept of ordered liberty.’ ” Id., at 693, 91 S.Ct. at 1180 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.)).
Teague, — U.S. at -, 109 S.Ct. at 1073, 103 L.Ed.2d at 353.
In discussing the second exception to non-retroactivity, the one that is argued to be applicable here, the Court articulated various formulations of the kind of principle that would meet the standards of that exception.
“[T]he Court never has defined the scope of the writ simply by reference to a perceived need to assure that an individual accused of crime is afforded a trial free of constitutional error.” Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 2623, 91 L.Ed.2d 364 (1986) (plurality opinion).
Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.
The “costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus ... generally far outweigh the benefits of this application.” [Solem v.] Stumes, 465 U.S. [638], at 654 [104 S.Ct. 1338, 1347, 79 L.Ed.2d 579 1984] (Powell, J., concurring in judgment).
The language used by Justice Harlan in Mackey leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure: “Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. For example, such, in my view is the case with the right to *1516counsel at trial now held a necessary condition precedent to any conviction for a serious crime.” 401 U.S. at 693-694, 91 S.Ct. at 1180-81 (emphasis added).
In Desist [v. U.S., 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 1969], Justice Harlan had reasoned that one of the two principal functions of habeas corpus was “to assure that no man had been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted,” and concluded “from this that all ‘new’ constitutional rules which significantly improve the preexisting factfinding procedures are to be retroactively applied on habeas.” 394 U.S. at 262, 89 S.Ct. at 1041.
We believe it desirable to combine the accuracy element of the Desist version of the second exception with the Mackey requirement that the procedure at issue must implicate the fundamental fairness of the trial.
... Finally, we believe that Justice Harlan’s concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.
Because we operate from the premise that such procedure would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are “best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus — that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.” Rose v. Lundy, 455 U.S. 509, 544, 102 S.Ct. 1198, 1217, 71 L.Ed.2d 379 (1982) (Stevens, J., dissent) (footnotes omitted).
... Because the absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, we conclude that a rule requiring that petit juries be composed of a fair cross section of the community would not be a “bedrock procedural element” that would be retroactively applied under the second exception we have articulated.
Teague, — U.S. at -, 109 S.Ct. at 1073-78, 103 L.Ed.2d at 354-359 (footnotes omitted).
It is within the parameters of this language that a court must judge whether a new principle, or an old principle applied in a new context, which for these purposes makes it a new principle, will be applied retroactively.
My examination in light of Teague of the claims made in this case convinces me that none of them would be extended retroactively to all defendants similarly situated to Moore.
The first claim is that the state failed to advise Moore of his right to remain silent or of his right to counsel prior to or during a presentence 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). Estelle held that the admission of a psychiatrist’s testimony at the death penalty sentencing proceeding violated the defendant’s privilege against compelled self-incrimination because the defendant was not advised before the examination that he had the right to remain silent and that any statement he made could be used against him.
Petitioner would have us extend that right to the post-conviction interview by a probation officer. The question is not whether the right against self-incrimination is fundamental, but whether the application of Miranda to a probation officer’s interview is of the bedrock character, such a fundamental procedure “without which the likelihood of an accurate conviction (sentence) is seriously diminished.” Teague, *1517— U.S. at -, 109 S.Ct. at 1077, 103 L.Ed.2d at 358.
The principle espoused by Moore, although it might be appropriate, is not of the fundamental or bedrock character required by Teague in order for it to be applied to all defendants in a habeas attack upon their conviction. I would, therefore, affirm the denial of the petition asserting this claim for relief on the ground that the principle could not be applied to Moore.
The second claim is that Moore was denied the right to confront and cross-examine witnesses whose hearsay testimony was considered in the presentence report, based on our case of Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983). A reading of the Proffitt opinion itself would seem to refute the notion that the principle there announced is a “bedrock procedural element”. In a thorough discussion of sentencing procedures, the opinion notes that “courts have declined to apply to sentencing most of the procedural rights guaranteed by the sixth amendment.” 685 F.2d at 1252. The court then states that because the death penalty is different, capital sentencing procedures “bring into play constitutional limitations not present in other sentencing decisions.” Id. at 1253. The holding of the court itself leaves room for the denial of the right in some situations: “_the right to cross-examine adverse witnesses applies to capital sentencing proceedings, at least where necessary to ensure the reliability of the witnesses’ testimony.’’ Id. at 1255 (emphasis added).
We need not now decide whether it would have been inappropriate to announce the principle in Proffitt in a habeas corpus proceeding, had Teague been the law at that time. It is appropriate now, however, when the claim is that Moore should have been able to cross-examine all witnesses whose hearsay statements appeared in the presentence report, to determine whether this extension of Proffitt should be made retroactive.
If the principle of Proffitt is so bedrock and fundamental, why would it not be extended to all criminal defendants? Why would not the right of cross-examination apply to all witnesses, without qualification? If this court is to follow the language of Teague and the obvious intendment of words in that opinion, we would deny the retroactive application of the principle which Moore wants us to establish in his case, absent some further guidance from the Supreme Court.
The third claim alleges that neither Moore nor his counsel was afforded adequate opportunity to review the presen-tence report prior to the sentencing proceeding in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). This does not fit into the Teague analysis, because it does not ask us to adopt a new principle of law or apply an old principle of law to a new fact situation, which should be treated as new law. “[T]his is not a claim based on alleged ‘new law’ declared since the first federal petition.” Moore, 824 F.2d at 855. Teague only applies to “new law” situations.
[H]abeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedures unless those rules would be retroactively applied to all defendants on collateral review.
Teague, — U.S. at -, 109 S.Ct. at 1078, 103 L.Ed.2d at 360. The word “new” is at the center of the Teague analysis.
As to this Gardner issue, in the prior opinion of the in banc court, we said that
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.
Moore, 824 F.2d at 856. I agree with that decision.
The court then vacated the denial of the Gardner claim for fresh consideration under the “ends of justice” principle. In my judgment, that decision was based on the fact that the case was going back to the district court anyway, and not on any notion that the defendant would be entitled to any relief on that issue alone. I cannot fault the way this court now handles the issue. There being an abuse of the writ, I would affirm the district court’s decision on this point.
*1518On appeal, Moore also challenged the district court’s disposition of his claim that his counsel rendered ineffective assistance at the sentencing phase of his trial and that the Georgia death penalty was applied in a racially discriminatory manner. I agree with the treatment of these issues in footnote 16 of the majority opinion, which is the same resolution reached by the prior in banc panel. Moore, 824 F.2d at 857.
For these reasons, I agree that the judgment of the district court should be affirmed.