*1 623 banc), Cir.1985)(en (11th and which 1413 case, applied in the instant is majority the BOWEN, Benson Charlie standard enunciated incompatible with the Petitioner-Appellee, Supreme in Caldwell v. Mis by the Court v. — U.S.-, 2633, S.Ct. 86 105 sissippi, Warden, Diagnos- KEMP, Georgia Ralph date, (1985). this court has 231 To L.Ed.2d Center, tic and Classification potential conflict. Al resolved this not Respondent-Appellant. in though majority panel, the of the Bowen 84-8327. No. rehearing, panel of makes the denial its is cursory assertion that there no conflict Appeals, of Court United States standards, two it furnishes no the between Circuit. Eleventh a The analytical basis for such conclusion. 2, Dec. 1985. yet the squarely has not addressed court language the of Gen., issue and reconciled Atty. Wil- Boleyn, V. Asst. Susan and I therefore dissent Brooks Caldwell. Hill, Atlanta, Ga., respon- Jr., for B. liam petition denial for from the of Bowen’s dent-appellant. rehearing en banc. Kehir, appointed, court Snell- Paul H. Ga.,
ville, for petitioner-appellee. District from United States
Appeal the Georgia; District of for the Northern
Court Judge. Murphy, L. District
Harold AND PETITION FOR REHEARING
ON EN REHEARING FOR
SUGGESTION
BANC JOHNSON,
Larry J. Petitioner-Appellant, v. JOHNSON, FAY Circuit Before and WAINWRIGHT, Secretary, L. Louie *, Judge. and District Judges, YOUNG Corrections, Department of Florida Respondent-Appellee. PER CURIAM: polled at the re- having The court been No. 85-3057. court, members the quest of one of the of Appeals, of United States Court judges who majority a of the circuit and Circuit. Eleventh having regular in active service not are 35, (Rule Rules in favor of it Federal voted 2, 1985. Dec. Procedure; Eleventh Circuit Appellate of 26), rehearing for en suggestion the Rule is DENIED.
banc
KRAVITCH, Judge, dissenting, Circuit CLARK, and Cir- whom JOHNSON
with Judges, join:
cuit Judge points in his dis- out
As Johnson
sent, evaluating of the for claims standard which this court
prosecutorial misconduct 1383, Kemp, F.2d
adopted in 762 Brooks v. * Judge designation. Young, George C. U.S. District Honorable Florida, by sitting of for the Middle District