dissenting, in which HATCHETT, Circuit Judge joins and KRAVITCH, ANDERSON and CLARK, Circuit Judges, join in part:
Because this Court1 ignores the Supreme Court’s mandate and rules contrary to its previous decision without rebriefing or reargument of the issues it decides, I must dissent.
I. THE PURPOSE OF THE EN BANC REHEARING
On July 27, 1987, this Court issued its en banc opinion reversing the district court’s dismissal on abuse of the writ grounds of all claims brought by Moore in his second habeas petition. See Moore v. Kemp, 824 F.2d 847 (11th Cir.1987) (“1987 opinion”). The Court held that Moore’s claims brought under 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), reh’g denied as modified, 706 F.2d 311 (11th Cir.1983), cert. denied, 464 U.S. 1003, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983), should not have been dismissed because they were based on law unavailable to Moore at the time of his first petition. See Rule 9(b) Governing Section 2254 cases, 28 U.S.C.A. Foll. § 2254. It also held that because a third claim, brought under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), called into question the accuracy of the facts underlying Moore’s sentence, it merited further consideration on “ends of justice” grounds. Cf. Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). The Court then remanded Moore's three claims to the district court. The state petitioned the Supreme Court for a writ of certiorari. On March 29, 1989, the Supreme Court vacated this Court’s *1523decision and remanded it for reconsideration in light of Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Zant v. Moore, — U.S. -, 109 S.Ct. 1518, 103 L.Ed.2d 922 (1989).
In the intervening time, decisions in this circuit, see, e.g., Tafero v. Dugger, 873 F.2d 249, 251 (11th Cir.1989); Gunn v. Newsome, 851 F.2d 1294, 1296 (11th Cir.1988), aff'd, on reh’g, 881 F.2d 949 (11th Cir.1989); Ritter v. Thigpen, 828 F.2d 662, 665 (11th Cir.1987); Mitchell v. Kemp, 827 F.2d 1433, 1435 (11th Cir.), cert. denied, 483 U.S. 1050, 108 S.Ct. 14, 97 L.Ed.2d 812 (1987); Daugherty v. Dugger, 699 F.Supp. 1517, 1520 n. 2 (M.D.Fla.1988), and in other circuits, see, e.g., Hannon v. Maschner, 845 F.2d 1553, 1557 (10th Cir.1988); Mercer v. Armontrout, 701 F.Supp. 1460, 1465 (W.D.Mo.1988), appeal dismissed, 864 F.2d 1429 (8th Cir.1988), have been rendered with Moore as their guide. In addition, numerous unpublished decisions from this Court’s special docket of capital cases have relied on Moore’s formulation of abuse of the writ principles to grant and deny stays of execution.
Today, this Court rules without explanation that its 1987 decision in Moore is a meaningless sport in the law. Neither Congress, nor the Supreme Court, nor this Court have altered the standards used to judge abuse of the writ claims since this Court’s 1987 opinion. No new facts have been put before this Court since its 1987 opinion issued. Petitioner is, in fact, in precisely the same position before this Court today as he was at the time of the 1987 opinion. Moreover, the merits of this Court’s 1987 opinion have not been re-briefed or reargued.2 No principled reason exists for the 1989 version of the Eleventh Circuit to rule differently from the 1987 version of this Court. The majority’s action in this case exhibits the sort of “arbitrary discretion” in disregarding prior decisions against which the Supreme Court has recently warned. See Patterson v. McLean Credit Union, — U.S. —, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989) (quoting The Federalist No. 78, at 490 (A. Hamilton) (H. Lodge ed. 1888)). Adherence to past decisions “ensure[s] that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals....” Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986).
The fact that stare decisis is technically inapplicable to this case provides little solace to those members of the public and the bar who expect the law to encompass more “than the proclivities of individuals.” The approach of the plurality opinion in this case might be somewhat legitimate if it were announcing a new rule of law. Moore’s claims would then seem to be dismissed by operation of law rather than by whim. However, the plurality applies the same law as did this Court in 1987 — yet with a completely different result.3 By operation of no principle of which I am aware can this Court reach a result contrary to that which it reached under identical law and facts two years ago. Surely this constitutes the sort of “arbitrary discretion” condemned by Patterson.
*1524The plurality’s failure to follow our earlier decision is even more unprincipled in view of the fact that this case was not remanded “in light of” a Supreme Court decision involving abuse of the writ. Obviously, this Court would have to conform itself to new Supreme Court precedent. However, Teague v. Lane is not a case involving abuse of the writ, as the plurality recognizes. Instead of “reconsiderpng] its opinion in light of Teague v. Lane,” the plurality ignores that portion of the Supreme Court’s mandate as surplusage. The Court’s remand in light of Teague is not meaningless. I would reaffirm this Court’s 1987 opinion and apply Teague to this case as I believe was contemplated by the Supreme Court’s order. Because application of Teague does not necessarily result in the dismissal of Moore’s petition, I set forth what I believe to be the proper disposition of the case.
II. THE APPLICATION OF TEAGUE
Teague establishes a bright-line rule for when a judicial decision creating “new law” will be applied retroactively in criminal cases. Defendants who have not yet completed the direct appeal process at the time of the announcement of a new rule will receive its benefit; defendants whose convictions are final will not. The decision provides two exceptions, one of which is applicable to this case. A rule will be applied retroactively to all defendants, on direct appeal or in collateral proceedings, if it concerns “bedrock procedural elements” which enhance the accuracy of the trial court’s decision. See 109 S.Ct. at 1076-77.
The logic of the remand becomes clear when the procedural posture of this habeas case is examined. Because this is Moore’s second petition, he must first jump the Rule 9(b) hurdle. This Court’s 1987 opinion determined that Moore’s three claims were not barred as abuse of the writ, even though this is Moore’s second petition. This Court’s remand to the district court for consideration of Moore’s claims may have been premature because the retroac-tivity of the cases on which Moore relied had not yet been addressed. Moore is entitled to full consideration on the merits only if the cases on which he relies have retroactive application. See Fleming v. Kemp, 837 F.2d 940, 947 (11th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1764, 104 L.Ed.2d 200 (1989); see also Advisory Committee Note Rule 9(b) (“[a] retroactive change in the law” may excuse “failure to assert a ground in a prior petition”). The Supreme Court’s action allows this Court to address that threshold question.4
A. Waiver
At no time in these proceedings has the state claimed that the decisions relied upon by Moore should not be applied retroactively to his sentencing in 1974. Moore argues that the state has therefore waived the opportunity to raise the defense of non-retroactivity. See Zant v. Moore, — U.S. -, 109 S.Ct. 1518, 1519, 103 L.Ed.2d 922 (1989) (Blackmun, J., dissenting) (“petitioner did not raise non-retroactivity as a defense to respondent’s claim for federal ha-beas relief, and that defense therefore should be deemed waived”). It appears that non-retroactivity is an affirmative defense. See United States v. Francischine, 512 F.2d 827, 830 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975) (“the court should not have considered the retroactivity of United States v. Maze [414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974) ] ... [t]he issue was not properly before the court as a defense to *1525the petition for revocation of probation”). In the habeas context, the defense of non-retroactivity has been available since at least Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (establishing standard for determining propriety of retroactive application of new law). Although Teague expressly modifies the Linkletter test in a manner which disadvantages collateral litigants, it does not create a new defense which was previously unavailable to the state.
However, the state argues quite persuasively that it has not waived the defense because the proper time to raise it has not arrived. In Moore’s case, the state pleaded abuse of the writ in immediate response to Moore’s petition. That shifted the burden to Moore to prove that his successive petition was not abusive. See generally Ritter v. Thigpen, 828 F.2d 662 (11th Cir.1987). Only the preliminary issue of abuse of the writ has been litigated thus far. The state claims that there has been no need to raise any defenses on the merits, i.e., non-retroactivity, until the abuse issue is settled. Although no case directly addresses this issue, I assume arguendo that the state has not waived the defense.
B. The Applicability of Teague to Capital Cases
Raising another issue which would pre-termit the application of Teague to his claims, Moore argues that Teague should not be applied at all in the capital sentencing context. The Supreme Court has rejected this argument. See Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) (applying Teague to capital cases). However, in doing so the Court held that the exceptions to Teague apply in the capital context. Id. Only if the Teague exceptions are applied fairly to permit retroactive application of procedural rules which enhance the accuracy of sentences will the application of Teague to Moore’s claims pass constitutional muster.5
C. The Teague Exceptions and Moore’s Claims
Because Teague is applicable to Moore’s claims, this Court should tackle the question of the retroactivity of the cases relied upon by Moore. I believe Teague would properly be applied in the following manner:
1. Gardner
The Supreme Court, in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), held that capital defendants must have access to and an opportunity to explain or deny information which the state considers in sentencing.6 Teague provides for retroactive application of “accuracy-enhancing procedural rules” which implicate the “bedrock procedural elements” of a criminal conviction. Id., 109 S.Ct. at 1076. The principle enunciated in Gardner is clearly such a rule. This rule is meant to provide for better fact-finding through adversarial procedure. Gardner allows crucial information to be clarified and supplemented. The result is that the sentencer has an improved and more accurate view of the facts upon which the sentence should be based. Id. at 359, 97 S.Ct. at 1205 (scrutiny of evidence to be presented during the sentencing phase minimizes “[t]he risk that some of the information accepted *1526in confidence may be erroneous, or may be misinterpreted, by the investigator or by the sentencing judge”). Under Teague, then, Moore is entitled to retroactive application of Gardner.7
2. Proffitt
Moore is similarly entitled to retroactive application of Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), reh’g denied as modified, 706 F.2d 311 (11th Cir.1983), cert. denied, 464 U.S. 1003, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983).8 This Court in Prof-fitt held that a capital defendant had the right to confront psychiatric witnesses at his sentencing hearing. This right has its foundations in “assuring] the ‘accuracy of the truth-determining process.’ ” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) (citations omitted) (cited in Proffitt, 685 F.2d at 1254). The idea that cross-examination improves the accuracy of fact-finding is at the foundation of the American adversarial system. See Proffitt, 685 F.2d at 1251 (“Cross-examination has been placed on a par with the right to notice and an opportunity to be heard and the right to counsel, which are fundamental minimum requirements of a fair trial comporting with the due process clause.”). The right to cross-examination created in Proffitt is expressly based on improving the quality of information available and the “reliability of fact-finding.” 685 F.2d at 1253. See also Chambers v. Mississippi, 410 U.S. at 295, 93 S.Ct. at 1046 (denial of cross-examination “calls into question the ultimate ‘integrity of the fact-finding process’ ”) (citations omitted). The procedural right set forth in Proffitt is perhaps the paradigm example of the accuracy-enhancing exception set forth in Teague. There can be no doubt that Proffitt applies retroactively.
3. Smith
Moore’s claim based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), presents a problem that his other two claims do not. Smith is not “new law” for retroactivity purposes. See Battie v. Estelle, 655 F.2d 692, 696-97 (5th Cir.1981). Yet this Court held in its 1987 opinion that Smith was new law for the purpose of excusing his failure to raise it in his prior petition. Moore, 824 F.2d at 853-54 & n. 12. The interrelatedness and possible identity of these two conceptions of “new law” is what this Court should have addressed on remand. Although I hesitate to discuss the issue in the vacuum of a dissent, I think the problem should at least be presented.
Moore asks the Court to maintain the position taken in our 1987 opinion that a decision which is not new law for retroac-tivity purposes may constitute an unforeseeable change in the law that excuses a successive petition from being dismissed as abusive.9 See Moore, 824 F.2d at 853 n. 12. This Court in its 1987 opinion cited only Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. *1527355, 83 L.Ed.2d 291 (1984), in support of Moore’s proposition. However, Alvord only held that the finding in Battle that Smith was not new law for retroactivity purposes did not necessarily mean that counsel was ineffective for not anticipating its holding in failing to raise a point on appeal. Because the standard for excusing the failure to foresee a new decision is different in the ineffective assistance context, Alvord does not necessarily stand for the proposition that a petitioner would similarly be excused in the abuse of the writ context. Alvord is weak precedent for Moore’s claim that this Court should readopt its holding that Smith can simultaneously be old law and new law. The Supreme Court’s remand of this case in light of Teague may suggest that only decisions which are new law for retroactivity purposes may excuse a successive petition. If so, then Moore’s Smith claim would have to be dismissed. The remand should have forced this Court to take a hard look at the relationship between its definitions of “new law.”
III. ABUSE OF THE WRIT
Although I think it ill-advised to revisit our 1987 decision absent a change in the law or facts, cf. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1197 n. 42 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979) (counseling against redeciding questions “absent the most cogent reasons such as the avoidance of manifest injustice”), I feel compelled to address the merits of the plurality’s decision to ignore Teague and affirm the district court’s decision to dismiss all of Moore’s claims under Rule 9(b). The majority’s position10 that Moore has abused the writ is untenable.
A.Proffitt
This Court decided Proffitt, supra, five months after the district court decided Moore’s first federal habeas petition. Under Rule 9(b), the district court must consider the merits of Moore’s Proffitt claim if Proffitt constitutes “[a] retroactive change in the law.” See Advisory Committee Note Rule 9(b); see also Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (“the applicant may be entitled to a new hearing upon showing an intervening change in the law”). As discussed in Part 11(C)(2) above, Proffitt clearly worked a change in the law which must be applied retroactively under Teag-ue. Before Proffitt, a capital defendant had no cross-examination right at the sentencing phase of his trial. See Williams, 337 U.S. at 250, 69 S.Ct. at 1084; see also Moore, 824 F.2d at 854 (complete discussion of why Proffitt constitutes new law for purposes of abuse of the writ). Because Proffitt was an unanticipated change in the law which should be applied retroactively, Moore’s successive claim should be excused from dismissal.
B. Estelle v. Smith
As discussed above in Part 11(C)(3), the Supreme Court’s remand in light of Teag-ue, a retroactivity case, seems aimed at this Court’s tenuous distinguishing of Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). See Moore, 824 F.2d at 853 and n. 12. Our response to the mandate might be to hold that the definition of new law for retroac-tivity and abuse of the writ are the same. Such a holding would leave us no choice but to hold that Moore’s Estelle v. Smith claim constitutes an abuse of the writ. This crucial intersection of retroactivity and abuse of the writ jurisprudence is what the plurality should be addressing today. It is a question of great importance, the answer to which might finally provide some definition to our vague notions of what constitutes “new law” in various contexts.
C. Gardner
This Court’s 1987 opinion remanded Moore’s claim brought under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), for consideration of whether the ends of justice might excuse *1528Moore’s failure to raise the claim in his first petition. Moore’s claim is based on the state’s alleged failure to provide him a meaningful opportunity to review, correct, or supplement evidence presented against him at sentencing. This Court found the district court’s ends of justice analysis unsatisfying and remanded for “fresh consideration,” noting that the district court had not had the benefit of Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). I cannot join in the plurality’s finding that Moore’s claim is “meritless,” at 1513; see Sanders, 373 U.S. at 15, 83 S.Ct. at 1077, and therefore subject to dismissal.
It is undisputed that the state, at the earliest, provided Moore with the key evidence used to sentence him to death on the day of sentencing. It also appears clear from the record that some of this evidence was false. Without a hearing having been conducted before the district court, I cannot begin to evaluate the merits of Moore’s claim. See Demps v. Dugger, 874 F.2d 1385, 1393-94 (11th Cir.1989) (Johnson, J., concurring in part and dissenting in part). However, I cannot conceive that the receipt of evidence on the day of sentencing can provide the meaningful opportunity for review demanded by Gardner. See Gardner, 430 U.S. at 362, 97 S.Ct. at 1207.
The Supreme Court has suggested that a successive petition may only be excused in the interest of justice if the petitioner makes a colorable showing of actual innocence. See Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality). The Court has not yet defined when a capital defendant is colorably “innocent” of his death sentence. See Dugger v. Adams, — U.S. -, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989). It has indicated that the alleged sentencing error must have “precluded the development of true facts [or] resulted in the admission of false ones.” Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668 (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986)). Since Moore’s claim, if true, goes to the very integrity of the trial court’s fact-finding, his second petition may be excusable in the interests of justice.11 I can imagine no more compelling excuse than that presented by a petitioner allegedly sentenced to death on the basis of false information.
IV. CONCLUSION
I can neither understand nor accept what this Court does in this case. By repudiating its 1987 opinion concerning abuse of the writ and ignoring the Supreme Court’s mandate, this Court provides ammunition to those who claim that the shifting composition of a court is more important than the rule of law in settling disputes. By deciding this case on grounds neither argued nor briefed on rehearing, this Court prevents the litigants from explaining positions taken more than five years ago. Most unconscionably of all, by foreclosing examination of the merits of petitioner’s claims, this Court leaves standing unchallenged a death sentence almost certainly rendered on the basis of false information.
“I feel constrained by a sense of duty”12 to dissent from the decision this day rendered.
. No single opinion commands a majority of the Court in this case. See plurality opinion of Cox, J.; concurring opinion of Roney, CJ. In discussing the reasoning of today's decision, I will primarily address the plurality opinion. Chief Judge Roney's special concurrence does respond to the Supreme Court’s mandate, and addresses some of the issues I discuss below, although, for reasons discussed below, I do not agree with his conclusions. However, Chief Judge Roney's concurrence also accedes in, and thus effectively joins, the plurality’s conclusions, reached in flagrant disregard of the Supreme Court’s mandate, on the abuse of the writ issues. See concurring opinion of Roney, C.J., at 1517. Thus, while I refer to “the plurality" in discussing specific aspects of the plurality’s reasoning, I also refer generally to “the Court” and "the majority” in discussing generally the Court’s holding in this case.
. As might be expected, given the Supreme Court's mandate, the parties below argued the meaning and application of Teague v. Lane. They were not asked to rebrief or reargue the abuse of the writ issues this Court redecides today. Presumably, the plurality’s conclusions are based on briefs now more than five years old and the dim recollection (of those members of the Court who were there) of an oral argument which took place the same length of time ago.
. The plurality purports to "adopt” a new rule. See at 1506; id. at 1505 ("Our task in this case is definitively to decide the standard by which courts of this circuit henceforth will judge the abusive nature of petitions alleging ‘new law’ claims.”) It applies an objective standard which "seeks to ascertain if reasonably competent counsel, at the time of filing of the first petition, reasonably should have anticipated a later change in the law.” Id. at 1506. This is precisely the same objective standard applied by this Court in its 1987 opinion. See 824 F.2d at 851 ("[Moore] is chargeable with ... the knowledge that would have been possessed by reasonably competent counsel at the time of the first peti-tion_ [Reasonably competent counsel ... could not reasonably have been expected to foresee [Moore’s Estelle v. Smith claim]”); id. at 852 (standard is what "counsel reasonably should have foreseen”).
. The Supreme Court’s order also necessitates inquiry into one of this Court’s holdings on the initial question of abuse of the writ. This Court’s 1987 opinion held that Estelle v. Smith was an unforeseeable change in the law which excused Moore’s failure to raise his claim in his prior petition. 824 F.2d at 853-54 & n. 12. However, this Court previously held in the re-troactivity context that Estelle v. Smith did not announce a new principle of law. See Battie v. Estelle, 655 F.2d 692, 697-99 (5th Cir.1981). The remand gives this Court the opportunity to consider whether a decision which is not "new law” for purposes of retroactivity may be deemed unforeseeable for purposes of excusing abuse of the writ. In other words, the remand may ask this Court to consider the adoption of a rule that any change in the law significant enough to excuse abuse of the writ must also constitute a "new rule” for purposes of retroac-tivity. I discuss this issue below in Part 11(C)(3).
. Teague provides for retroactive application of new procedural rules "without which the likelihood of an accurate conviction is seriously diminished.” Id., 109 S.Ct. at 1076-77. If this language is applied to the accuracy of a sentence, then most important decisions in the capital sentencing context should be given retroactive effect. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (accuracy of death sentence undermined by limitations on consideration of non-statutory mitigating factors); Gardner, supra, (accuracy of death sentence undermined by sentencer’s consideration of information unavailable to defendant); Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (accuracy of death sentence undermined by consideration of uncounseled prior felony convictions).
. I assume that Gardner represents new law for retroactivity purposes. See Penry, 109 S.Ct. at 2944 ("a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government”) (quoting Teague, 109 S.Ct. at 1070). Gardner’s requirements of access and opportunity to explain or deny information previously withheld from capital defendants undoubtedly imposed a "new obligation on the States."
. Moore’s first federal habeas petition was filed in November 1978, more than a year after Gardner was decided. Moore’s belated Gardner claim was excused by this Court’s 1987 opinion in its Rule 9(b) analysis in order to further the “ends of justice,” not because Gardner was unforeseen “new law” when Moore filed his first petition. The finding that Gardner creates the sort of accuracy-enhancing rule that warrants retroactive application to Moore’s sentencing in 1974 is in no way inconsistent with the concurrent finding that Moore's failure to raise the claim in his first federal habeas petition might be excusable to further the ends of justice.
. I assume that Proffitt represents new law for retroactivity purposes. The Court in Proffitt noted that a capital defendant had no right to cross-examine witnesses whose statements were considered by the court in sentencing. Williams v. New York, 337 U.S. 241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337 (1949). Nevertheless, this Court created a new rule, in light of Fur-man and its progeny, which granted a defendant the right to cross-examine psychiatric witnesses whose testimony is contained in sentencing reports. In fact, this Court has yet to go as far as Moore requests in expanding a defendant’s right to cross-examine adverse witnesses during sentencing. This Court’s original broad opinion in Proffitt was modified to establish only the right to examine psychiatric witnesses. See 706 F.2d at 312.
.Because Teague only addresses retroactive application of new law, see 109 S.Ct. at 1070, Moore argues that Teague does not bar consideration of the merits of his Smith claim by reason of non-retroactivity.
. Again, I note that while only the plurality opinion flagrantly disregards the Supreme Court’s mandate in reaching and redeciding the abuse of the writ issues, the concurring judges accede in, and effectively join, the plurality's repudiation of this Court’s 1987 opinion with regard to abuse of the writ. See concurring opinion of Roney, C.J., at 1517.
. It is worth noting that Moore attempted to bring the Gardner claim in his first petition by pro se amendment. His second habeas counsel also tried unsuccessfully to amend the first petition to include the Gardner claim.
. See Twining v. New Jersey, 211 U.S. 78, 114, 29 S.Ct. 14, 26, 53 L.Ed. 97 (1908) (Harlan, J., dissenting).