William Neal Moore v. Ralph Kemp

confessions); Poole, previous of three valid (admission

794 F.2d at 467-68 statements MOORE, William Neal despite eyewitness testimony not harmless Petitioner-Appellant, bank); that defendant robbed the but cf. McCotter, 1245, 1250-51 Felder v. Ralph KEMP, Respondent-Appellee. (use Cir.1985) of unlawful confession though not harmless there even sec No. 84-8423. ond, detailed, evidence), less admission in United Appeals, States Court of — U.S. -, Eleventh Circuit. July 27, 1987. We conclude that here the admis sion of the unlawful confession was not

“harmless error.” The unlawful confes only

sion confession admitted at heavily

trial and was upon by relied

prosecution. There eyewitnesses were no Moreover,

to the murders. physical (blood

evidence introduced on Christopher’s

shoes, house, fingerprints in the Christo

pher’s gun), as well as both the evidence of

Christopher’s relationship incestuous with

Norma and testimony, Norma's were not petitioner’s original

inconsistent with mur Furthermore,

der-suicide alibi. Heinrich

Schmid, County the Collier medical examin

er, only testified that he not believe” “[did]

that Ahern's wounds were self-inflicted.25

A jury concluded, reasonable could have

based on the lawfully evidence, introduced

that the State petition had not established guilt beyond

er’s a reasonable doubt. This

conclusion is buttressed the fact that

Christopher’s first trial in hung resulted

jury. find, therefore, We that the errone

ous admission of the unlawful confession

was not harmless error.

Accordingly, we REVERSE and RE-

MAND to the district court with directions grant writ

respect convictions, to both conditioned

upon the affording Christopher State’s

new trial.26 Furthermore, not, not, sary, the erroneous admission of the we need and therefore do address certainly confession Christopher’s affected the conduct of Christopher’s challenges other to the denial of Harryman, defense. See 616 F.2d his habeas Nor do we address whether at 877 n. 15. properly Christopher’s the district court denied 60(b) Rule motion. 26. Because we conclude that the confession was inadmissible and therefore a new trial is neces- grounds Boger, City, York for

John Charles New asserted on the basis of abuse of petitioner-appellant. panel the writ. A divided of this court adopted affirmed and the district court Gen., Atty. Atlan- Boleyn, Susan V. Asst. Zant, opinion. Moore v. 734 F.2d 585 Ga., ta, respondent-appellee. Cir.1984). Judge Kravitch dissented. 734 margin F.2d at 601. We set out in the chronology key litiga- events in this tion.1 RONEY, Judge, Before Chief GODBOLD, HILL, TJOFLAT, FAY, pressed Five issues are before the en

VANCE, KRAVITCH, JOHNSON, banc court: HATCHETT, ANDERSON, CLARK and (1) The state failed to advise Moore of EDMONDSON, Judges. Circuit right his to remain silent or of right his to counsel presen- GODBOLD, Judge: Circuit tence by probation interview conducted Petitioner Moore raised in a second fed- officer after conviction and before sen- grounds petition eral habeas new not raised tencing, a claim based on Estelle v. petition allegedly his first federal Smith, 454, 1866, upon principles based new of law laid down (1981). petition. major since the first federal The (2) right The state denied Moore the decision for the en court concerns banc confront and cross-examine witnesses determination of whether this was an hearsay whose testimony was considered 9(b) abuse of the writ under Rule presentence report, a claim based Governing Rules Section 2254 Cases. on Wainwright, 685 F.2d 1227 Moore was convicted of murder in Geor- (11th Cir.1982), modified, 706 F.2d 311 gia plea guilty after a and sentenced to (11th Cir.), denied, 1003, cert. He petition death. has filed a first state 509, (1983). habeas, by peti- followed a first federal tion, Neither Moore nor his counsel a second state and now the adequate opportunity afforded second federal to review case the district court presentence report prior denied all nine to the sen- sentence; 8, (third) guilty April 1. 1974: Plea of affirmed 1981: Present habeas counsel by Georgia Supreme on merits Court. Moore v. retained. State, 861, (1975) (per Ga. 29, April S.E.2d 1981: District court denied relief curiam), 3222, denied, 910, cert. 428 U.S. (1976). conviction, granted writ as to sentence on ground proportionality by Georgia of no review January petition 1978: First state habeas Supreme court. The court also denied both July Relief filed. tiary hearing. denied after eviden- Moore, se, (by pro by motions to amend Hicks). Zant, 772, F.Supp. Blake v. 803-18 petition November 1978: Federal habeas (S.D.Ga.1981). filed. Appeal by 1981-1983: state to Cir Eleventh March 1979: Habeas counsel moved to cross-appealed cuit. Moore on refusal to allow withdraw. Granting pro his se amendment. of writ re April pro 1979: se moved to amend Petitioner cross-appeal versed and relief denied on on grounds, including to assert several new ineffec- ground of no abuse of discretion. Moore v. tiveness counsel. Balkcom, (11th Cir.1983), 716 F.2d 1511 Hearing magistrate. June 1979: before Petitioner asserted that his referred to (1984). conflict between him and Moore on whether May Second state habeas 1984: ineffective counsel claim should be asserted and hearing. filed. Dismissed without Review de- magistrate refused to take evidence on issue or Georgia by nied Court. permit petitioner to file an affidavit. May 1984: Second federal habeas September 1980: New habeas counsel May filed. court District denied relief Hicks retained. grounds. abuse of writ to amend new October 1980: Motion panel June 1984: A of the Eleventh Circuit grounds. object- State counsel Hicks to add five opinion. proposed affirmed on district court Moore v. ed to amendments Zant, (11th Cir.1984). 734 F.2d 585 Hicks. trial phase at the of Smith’s of Gard tencing proceeding, in violation privilege his fifth amendment violated Florida, 430 U.S. ner v. against self-incrimination and sixth 1197, 51 L.Ed.2d 393 right to counsel as well. trial counsel at Ineffectiveness presen- apply Moore seeks to Smith sentencing phase. by pro- of him a tence interview conducted discriminatory application (5) Racially officer after his conviction but be- bation in the State Geor- of the death sentencing. fore his gia.2 court denied the claim. The state Smith First, previously it held that Moore had claim v. Smith I. Estelle litigated unsuccessfully. the issue petition, filed in In his second rather, literally did not mean this but (1) of the list above— Moore raised opinion explains, had known as its right him of his failure to advise concerning his interview the facts to counsel remain silent and of and in first state ha- probation officer by proba- interview a prior presentence to a opportunity had raised the issue of beas and before sen- officer after conviction explain report, on and and comment interviewed Moore in tencing. The officer therefore, ques- he could have raised the pre- preparation of a connection with right tion of failure to advise him of his by introduced report that was sentence counsel; right remain silent and his hav- sentencing phase of Moore’s state at the right do so he had failed to “waived trial. petition.” to do so in this successive habeas Second, the court held that Smith did not based on Estelle v. This was claim principle a new constitutional be- establish Smith, 68 U.S. Supreme cause the Court had relied on its (1981), which was not decided Gault, prior decisions In re Moore’s first feder- until three weeks after and by decided the district petition al was Arizona, Miranda v. psy- a court ordered court.3 Smith Smith, chiatric examination Texas custody. he was in prisoner, while presented in This issue was then right of his to re- Smith was not advised petition, immediately second federal filed psychia- examined main silent when petition after the second state was any nor statement he trist was told raising for the first time the federal could be used psychiatrist made to the principle alleged of law court be new ensuing sentencing against him at the hear- and to have been laid down since the first ing. Supreme petition, giving held that admis- federal and rise to an abuse 9(b). under interrogating testimony doctor’s of the writ issue Rule Four sion of the rejected four United States Court’s invalidation of 2. The district court also other statutes, grounds Georgia's capital for relief in Moore’s federal habeas attached dimin- [he] corpus petition: consequences ished to the sentence of death imposed 2) and thus took less than full re- on the basis of Petitioner was sentenced sponsibility misleading for the decision in vio- materially false and information petitioner’s Eighth presentence report. and Fourteenth lation contained in the right. Amendment (district 5) presentence prevented opinion). report defects F.2d at 589 meaningful petitioner obtaining appel- granting The district court decision relief in Eighth of his [sic] late review in violation 10, 1977, shortly Smith was decided December Fourteenth Amendments. petition was filed. The 6) after Moore’s first state death sentence is excessive Petitioner's 13,1979, September Circuit affirmed more Fifth disproportionate Eighth under petition year was than a after the first federal imposed Fourteenth Amendments since was year proposed than a before the filed but more despite repeated and uncontradicted deni- 1, supra. filed. See n. any Hicks amendment was victim. al of intent to kill the the 18, 1981, Court in Smith The decision 9) May sentencing judge expressly entered three weeks after the Since the re- was petition. prospect appellate federal lied on the review or the district court ruled on the first filing, days after the district court denied that possessed would have been by reason grounds.4 the claim on ably competent abuse writ counsel at the time of the We hold that the claim in the Smith second first Blackburn, Daniels v. Cf. petition properly dismissed under Cir.1985) (finding 9(b) Rule and remand for reconsideration abuse where of the claims that “[e]ach of this issue on the merits. Daniels has asserted this proceeding is a competent of which habeas counsel withholding Absent deliberate would have been aware at the time Daniels’ intentional abandonment of a claim in the prior federal 1980”). filed first federal inquiry into petitioner whether a has abused the writ in turnWe next to the state of the law raising a new law claim must consider the in November 1978—the time of petitioner’s knowledge conduct at the federal respect to the —with preceding application.5 time of the state’s failure to advise Moore of his fifth 9(b) Rule allows dismissal of a claim when right amendment to remain silent and of “the failure to assert his sixth prior to counsel grounds those petition consti to or presentence interview con tuted an abuse of the writ.” Accord probation ducted by a officer after convic petitioner’s U.S.C. 2244. The focus on § tion and sentencing. before We hold that conduct is mandated purpose basic in November years two and a half of the abuse of the writ doctrine—to en Smith, before Estelle v. “equitable principle[ force the ... that a ] 5.Ct. reason suitor’s conduct in relation to the matter ably competent counsel preparing the first may hand disentitle him to the relief he petition could not reasonably have been U.S., seeks.” Sanders v. 83 expected to foresee the fifth and sixth 1068, 1078, 10 (1963). An implications presen- of Moore’s petitioner’s evaluation of a conduct in omit tence particular, interview. In counsel is ting a claim petition from his first neces not chargeable anticipation with an of the sarily hinges on petitioner’s awareness potential intersection of Miranda Arizo legal of the factual and bases of the claim na, 1602, 384 86 U.S. when the first petition was filed.6 See 694 with sentencing phase of a Estelle, Haley (5th 632 F.2d 1275 bifurcated Georgia capital murder trial. Cir.1980) (a petitioner may assert in a sec result, As a failure raise the petition ond legal claim based on facts or Miranda claim in his corpus first habeas theories about which he knowledge had no petition was not an abuse the writ. at the time prior petition). The failure of Moore and counsel in 1978

Moore represented by to anticipate application counsel in Miranda at the time his first federal habeas sentencing phase context of the petition was chargeable filed. He is Georgia’s capital proceeding bifurcated is counsel’s actual of the light awareness factual reasonable of the lack of clear legal bases of the claim guidance at the respect time 1978 with to constitu- the first knowledge and with the protections tional might that attach to the impliedly rejected alone, It the state conclusively court’s statement case to be without merit.” 4. previously litigated that Moore had U.S., the Smith Sanders v. 83 S.Ct. proceeded directly claim and to the conclusion policy L.Ed.2d This that Smith was not "new law." incorporated Governing into Rule 4 of the Rules (authorizing summary Section Cases dis- course, 5. Of the court not have to consider plainly appears missal from the "[i]f face of peti- whether a new law on a successive any petition- exhibits annexed to it that tion is abusive if it determines that the new relief’). er is entitled to wholly claim is without merit. The Court provided Sanders the abuse of the writ 6. operative Awareness for a claim rules "are not basis in cases where the sec- factual shown, application ond or successive the time of a on the federal habeas is a application, basis of the question files and not before records us. plurality opinion of in a appears Clause” Georgia's bifurcated sentencing phase. 358, 97 S.Ct. at 430 U.S. at justices. three approved had been procedure death concurring opinions do not Gregg v. in 1976. Supreme Court by the position. id. at clearly ascribe Georgia, J., concurring) (White, at 1207 immediately (1976). It was not case the in this (“I to address see no reason however, constitutional obvious, sentencing proceed- application to possible to a defend normally accorded protections the Due or other cases—of ings death sen applied to merits trial would ant’s —in Clause, than as vehicle other in Process Georgia’s general, tencing phases Eighth strictures by which the might that Miranda less particular, much case.”).8 triggered in this are Amendment years after In four applied. sobe assaying are which we as of 1978 date peti first federal filed his Moore When reasonably his counsel what therefore, which consti tion, the extent to foreseen, Circuit the Eleventh should for criminal defendants protections tutional sentencing hear “[traditionally, noted sentencing proceed capital apply to would signifi accorded ings have not been panoply of full ings clear—the was not portion guilt-determination cance of array, full less than the protections, or Wainwright, the trial.” less, Proffitt was to be included? if what Prof Cf. Cir.1982), modified, F.2d “[although [Supreme] in 1982: fitt, sentencing proceed capital Court has held (1983). This 508, 78 L.Ed.2d 697 require procedural ings must certain meet say court went ments, the exact yet delineated it has decisions, Supreme Court of recent light protec procedural of constitutional scope proce view, prevalent, once “[t]he are enti capital defendants to which capital applicable to requirements dural added). (emphasis 685 F.2d at tled.” those rigorous than no more are filed years after Moore two sentencing decisions noncapital governing argu Texas was the State of (empha longer valid.” Id. at is no ... United States before added).7 sis “was not enti that Smith in Smith Amend- Fifth protection of the tled to the guid- lack of clear of a evidence Further testimony was used mént because [the] sentencing respect to in 1978 with ance convic punishment after only to determine the cases by looking at phases is revealed guilt” and that “the tion, not to establish in its relied Supreme Court on which rele privilege has no Fifth Amendment Court, in in Estelle v. Smith. opinion capital phase of a penalty to the vance support in of the cases cited three Smith, murder trial.” U.S. guaran- constitutional of certain application 1872. phase: Gardner Texas to the tees Florida, in Next, analyze Smith we decision v. Georgia, light (1977); Presnell see what particularity, to L.Ed.2d foreseeability question of the sheds on the possibility Georgia, 1978 of the (1978); counsel in and Green to plenary applicability Of have 2150, 60 Miranda would 6, 1978) Georgia-type a (decided sentencing phase of these, November to Presnell 29, 1979) the Court were In (decided May capital murder trial. Smith and Green fifth and sixth of Smith’s after a by the found violation down handed State of Tex- rights where the petition was federal habeas Moore's first sentencing phase introduced, of Gardner, at the a The statement in 1978. filed trial, testimony of a capital murder his year before Moore's order, who, pursuant to court psychiatrist as the sentencing process, as well that “the com- him to determine interviewed Process had itself, satisfy Due trial must did not consider the II, The other concurrences 8. infra, of Moore’s for a See Part discussion issue. claim. Bat- tencing phase Smith,12 held trial. The Court of the trial in petency to stand tie said: of Miranda psychiatrist’s testi light sentencing used at the mony could not be Smith only held the fifth amendment given phase had not been because Smith privilege applicable to the Lucas, Gray Miranda warnings. stage capital of a trial in Texas because (5th Cir.1982) 1086, 1096 n. 9 the Fifth prove capital the State of Texas must a Gray’s spoke to whether counsel Circuit dangerousness defendant’s future as an opin have foreseen the circuit’s own should separate proof issue and distinct from of ion in Smith (handed year down in a guilt. applicability privi- of the Supreme Court decid and a half before the lege mandatory discretionary sen- Smith Smith): opinion in ed “Because our tencing procedures requiring proof not years Gray’s tri was delivered three after such prerequisite impose an additional al, Gray’s counsel for not we do not fault punishment a criminal raises different anticipating holding.”9 our questions necessarily resolved Smith. Analysis why Moore and his first ha- counsel, reasonably Georgia could not 655 F.2d at 698 n. 10. The

beas statute Smith expected anticipate requires been under which Moore was have sentenced understanding -type10 requires only aggravating consideration of and miti- Smith importance gating decision of the require circumstances and does not sentencing pro- any proof dangerousness. a Texas special nature of future ceeding capital This a bifurcated trial.11 O.C.G.A. 17-10-30. It would be anoma- § analysis charge for us is seen the Fifth Circuit’s lous Moore’s counsel with Estelle, Battie v. Smith proposition F.2d 692 an awareness in 1981), binding Sept. Cir. a decision remained unclear to the Fifth al- Circuit (and years on our court. In connection with the issue most three later four months of Miranda to the sen- Smith), applicability namely after it had the benefit of opinion apply retroactively 9. The Fifth Circuit’s in Smith could not ed Miranda would be- given any guidance, principle for it have Moore's counsel it did announce cause a new year came a after Moore’s first federal speak constitutional law. This does not us, namely issue before whether the intersection 10. Because we hold that Moore’s counsel is not capital sentencing pro- in Smith Miranda and chargeable prin- with an awareness of the Smith ceedings Georgia statutory conducted under the ciple, we need not decide whether he would also anticipated by scheme should have been counsel expected possible appli- been to discern in 1978. principle investigations cation of the Smith pointed The Eleventh Circuit has out that a officer, probation who is in a conducted retroactivity of a decision determination representative sense a of and officer of the inquiry question is a different than the of what court, having specialized pro- function in the court, should have foreseen before the deci counsel psychiatrist, cesses of the instead of a was handed down. In Alvord v. Wain sion who has a different function but is not an arm (11th denied, Cir.), wright, cert. 725 F.2d 1282 of the court itself. 956, 355, 291 U.S. 105 S.Ct. 83 L.Ed.2d 469 clear, now, 11. It is no means even that Smith (1984), an the court observed that different apply non-capital cases where a trial would given questions of wheth swers could be judge consider informa- has wide discretion to retroactively applied er Smith whether imposing tion in sentence. See Baumann v. anticipated The counsel should have Smith. U.S., 565, Cir.1982) (distin- (9th 692 F.2d 576 holding with the of the court contrasted Battie involving guishing Smith as a bifurcated death Lucas, Gray v. 677 F.2d new Fifth Circuit proceeding where discretion on 1086, (5th denied, Cir.1982), n. cert. 461 1096 9 channelled whereas Baumann involved a “rou- 910, 1886, (1983) U.S. 103 S.Ct. 76 L.Ed.2d 815 presentence for the interview[ tine conducted ] failing counsel was not deficient in to antic that ipate judge benefit of a district in the exercise of his Alvord, 725 F.2d at See also Smith. 1293. sentencing"). substantial discretion 1275, Wainwright, 741 F.2d Francois v. Cir.1984) (the failure to raise an issue that aspect considered a different of 12. Battie also only gains judicial recognition does not later relationship the law of Smith to the state of ineffective); v. Wain render counsel Sullivan The Fifth Circuit before Smith was announced. 1306, (11th Cir.), wright, 695 F.2d cert. pretrial ruling held of Smith that the 922, 290, denied, 104 S.Ct. 78 L.Ed.2d competency 464 U.S. psychiatric was an of- examination (1983) (same). interrogation type protect- ficial custodial of the applica- witnesses whose statements were included protections would be Miranda report. Georgia- presentence in his sentencing phase ble of to the type penalty proceeding. death claim, The court denied the state habeas us that “a has told holding that there was no new factual basis attorney performance fair of assessment for the claim and that did not Proffitt requires every made to elimi principle effort be a new constitutional be- establish hindsight.” distorting effects of nate the had relied “on cause the Eleventh Circuit 668, Washington, 466 U.S. Strickland v. landmark decisions of the 689, 2052, 2065, 80 L.Ed.2d 674 104 S.Ct. in Douglas Court of the United States v. (1984); 415, 418, 1074, Murray, Alabama, v. 477 U.S. accord Smith 380 U.S. 85 S.Ct. 2661, 2667, 527, _, 91 L.Ed.2d 13 L.Ed.2d 934 and Pointer v. attorney’s 400, 404, An failure 1978to Texas, 380 U.S. of recognize potential (1965).” intersection Mi 13 L.Ed.2d 923 In this sec- Georgia capital sentencing pro randa and petition ond federal habeas the district performance ceedings, cause his does not rejected claim under the Proffitt range profes of “the wide of analysis applied to fall outside same abuse that it to the sionally competent assistance.” claim. As Estelle v. Smith with Smith Strickland, claim, 104 S.Ct. at charge we cannot Moore with the charge Consequently, we cannot knowledge legal of this claim basis knowledge legal petition Moore with the at the time of his first and we hold claim at the time of his first omitting basis of this conduct the claim was petition therefore hold that his conduct an of abuse the writ. omitting the claim was an not of abuse aspect law arises new Proffitt warranting dismissal under Rule

the writ question from the court’s resolution 9(b). remedy, such an abuse of the Absent “[wjhether right to cross-examine the federal courts should hear the merits capital adverse witnesses extends to sen- corpus. Accordingly the claim on habeas tencing proceedings.” 685 F.2d at 1253. to the district court for a con we remand The court extended the cross-examination of the merits of Moore’s claim sideration principles Mississippi, v. Chambers regarding presentence interview. U.S. (1973); Green, v. California Wainwright II. 1930, 1935, Proffitt S.Ct.. (1970); Alabama, Douglas In Moore’s second habeas 13 L.Ed.2d “new law” claim. He raised another phase capital pro- alleged denied him that the state ceedings. respect As we concluded confront and cross-examine witnesses claim, the Estelle v. Smith the failure hearsay testimony was considered whose anticipate Moore and his counsel in 1978 to report. presentence This claim based this extension does not render the omission Wainwright, 685 F.2d 1227 Proffitt of the claim from the first (11th Cir.1982), modified, 706 F.2d 311 Accordingly abuse of the writ. we reverse (11th Cir.), court’s dismissal of the the district which was grounds claim on abuse and remand Septem decided the Eleventh Circuit on of the merits of the reconsideration claim. after the district ber five months first federal court decided the III. The v. Florida claim Gardner recognized specific the this court petition alleged capital The second federal that right accorded a de constitutional Moore nor his counsel had been psychiatrist a neither fendant to cross-examine review, meaningful opportunity given a report presentence of a examination whose correct, supplement presentence or the re- by considered the of the defendant was Florida, in port, decision. violation of trial court in its Id. Gardner 1197, 51 L.Ed.2d 393 apply this 1251-55. Moore seeks to case Gardner was decided 1977; in argues that the failure to therefore is not this a claim based al- on raise this claim in petition the first cannot leged “new law” declared since the first be an abuse of the light inwrit of Moore’s petition. federal attempt to add the claim by amendment. Although Moore attempt did to raise this

This claim comes to us with an unusual claim before the first court, federal procedural habeas history. It originally procedural insufficiency raised Moore’s first state habeas that at tempt petition in has petition, already 1978. The first litigated, been before filed in the fall of did not include court on a this motion to peti amend the sought claim. Moore by raise the claim and before this court on Moore’s cross- amendment petition in October appeal of the denial of the motion to just after he retained new counsel. The amend. 716 F.2d at 1527. We are thus district grant court refused to leave to upon called to determine the effect on a petition, amend the and the Eleventh Cir- second federal corpus petition habeas of a cuit affirmed: failure to raise a claim adequately on the The district court petitioner found that petition. first hand, On the one the denial represented had been by counsel at all of leave amend cannot stand as a conclu times. explicitly Counsel referred to this sive determination that the failure to raise original issue in the petition habeas filed the claim in the petition first was an abuse approximately two years pro- before the writ, because the applied standards posed amendment. say We cannot by a district court in considering amend the district court abused its discretion in ment are not coterminous with stan denying proposed dards for abuse of the writ. Paprskar Cf. case where counsel apparently con- Estelle, Cir.), F.2d 1003 rejected sidered proposed argu- years ments filing two pro- before (1980)(dismissal of unexhaust- posed amendment.16 ed petition claims in first does bar as 15Mr. represented James C. Bonner who had abuse assertion those claims a petitioner prior petition, at the habeas petition). second hand, On the other petition filed the initial habeas in federal court. attempt mere to raise the claim by amend filed, proposed At the time the amendment was ment in one proceeding represented Ms. H. Diana Hicks by cannot Moore. Since represented counsel, Moore though at all times itself be a defense to an assertion of abuse individual, the same cannot we subsequent proceeding. It would be say that the district court abused its discretion petitioner if anomalous who deliberately refusing to. allow the amendment.15 strategically withheld a claim from his 716 F.2d at 1527 & n. 15. Moore raised petition, Young Kemp, 758 F.2d cf. again issue in his second federal (11th Cir.1985), could insulate that con and the court district denied the claim anas duct from a later abuse determination abuse of (district the writ. 734 F.2d at 598 simple expedient of an untimely at opinion). tempt to amend the petition. first This 9(b) Rule categories creates two 9(b)’s result would goal frustrate Rule (or successive) claims in second peti- having all claims raised and determined in tions. prong The first concerns cases one ground which the same previously has been presented The fact and decided Moore’s Gardner claim against proposed determination was included in a on the merits. amendment to a inadequate petition claim opportunity to amendment was presentence review report properly denied is was never most a to be factor determined on the It is in answering question merits. considered therefore new, prong, second claim that must be whether be denied in this on the entertained merits unless the failure on abuse of grounds. writ to raise it in the first inquiry was an appropriate abuse in the subsequent ac- of the writ. tion is whether bring the failure to in action constitut- It is not certain what properly the first standards

claim guide determining should a district court in of the writ. ed an abuse justice” require whether the “ends of say that district We cannot consideration on merits of an otherwise court, ruling petition, on s second successive In in Moore dismissable habeas Wilson, 436, Kuhlmann v. 477 U.S. to finding the failure include erred a four- petition in the was an abuse this claim justice plurality Supreme sug of the Court the claim in his of the Moore raised writ.13 gested of justice that the ends will demand at petition, see F.2d first state only of the of claims consideration merits (district original and his opinion), court showing where there is “a colorable explicit petition refer made federal habeas factual innocence.” Id. We at 2627. need presentence report issue. See ence to the this time decide at whether a colorable Balkcom, F.2d showing a necessary of factual innocence is (11th Cir.1983). attempt even to He failed application ends condition for the years almost two to raise the that, justice exception. merely We hold petition filed. the first This ex after minimum, a the ends of justice will demand previously to a claim tended failure raise a claim consideration merits of on a analogous is in the state courts raised is a successive where there color- Dugger, the situation Antone v. showing able of factual innocence. 200, 104 S.Ct. adjustment required to apply Some curiam). case the (per test, phrased this as it terms “inno- finding upheld a of abuse where the cence,” alleged errors in constitutional presented had each of these “applicant capital sentencing. guidance We find some the first claims to the state courts before opinion Court’s in Smith v. (and, indeed, petition for filed habeas was Murray, 477 U.S. 106 S.Ct. may of these claims the substance L.Ed.2d 434 In the context of al- presented peti in the first habeas been leged capital sentencing pro- errors in a tion)....” Id. at 104 S.Ct. 965. ceeding sought the Court that case found, however, a Even where abuse is apply analogous govern- standard—that dismiss, federal court should not under justice principles when fundamental proce- a claim in a successive if require Rule would the consideration of durally justice” require claims in the absence of the “ends consideration defaulted a showing of cause for default. on of the claim the merits. See Potts v. Murray standard was announced in Zant, 638 F.2d 751-52 Cir. Unit Carrier, B), which held that “where (1981); 357, 70 L.Ed.2d 187 Sanders v. probably violation has re- constitutional 1, 18-19, U.S., 373 U.S. sulted in the conviction who is of one actu- 1078-79, (1963). The district innocent, ally a federal court acknowledged principle, in Moore court grant writ even in absence of noting justice the interests of “[w]here showing procedural of cause for the de- require, such claim should be enter so fault.” at 2650. Id. tained,” appar 734 F.2d at 597. The court concluded, however, ently ends of Murray Court refused to Smith justice require did not merits, finding consideration claim on the consider a on the merits alleged Moore’s Gardner claim be “the error neither constitutional “repeated oppor precluded development true cause had had facts false litigate nor in the admission of ones. this issue.” resulted tunities Id. properly the issues The district court stated that failed to petition, this under Court is warranted himself could have Because Petitioner deny the “abuse of the writ" doctrine appeal [this] claim direct Geor- raised the Court, gia Supreme did claim. because he raise it (district opinion). at 598 his first and because he state habeas Thus, assuming even in the attempted allow- [error to raise the issue of ineffective- ance of testimony], certain its admission ness of counsel at the merits trial in numer- pervert did not jury’s serve the ous respects, delibera- set out in margin.14 whether concerning tions petitioner only reference to the sentencing phase con- fact continuing constituted a threat to cerned society.” failure to petitioner’s transcribe ar- guments S.Ct. at 2668. concerning punishment and miti- gation and aggravating circumstances. The district court the present In the second petition federal Moore al- did not case have guid available to it the leged ineffective sentencing, counsel at on given by ance Court Smith grounds. numerous urges that he Murray. In our consideration of wheth did issue, not withhold the stating that it er alleged “the constitutional error [either] was omitted from the first petition precluded development of true facts because of differences between him and his resulted in the admission of [or] false ones” counsel. The issue, ineffectiveness includ- we are faced with a fundamental inconsist performance of counsel at the sen- ency in the decision of the district court. tencing phase, had been examined in detail The court found justice that the ends of did in the denying order petition. first state require consideration of the Gardner sentencing Ineffectiveness at was not as- claim on the merits. Yet its own state pro se amendment or petitioner’s serted in arguably ments require opposite find in the Hicks amendment. The court did not ing. The court if stated there had err in finding that it was barred under violation, been a Gardner “then sufficient abuse principles. of the writ likelihood would finding exist for that a wrongful sentence imposed was based on Racially V. discriminatory application of inadequate information.” The court also death penalty Georgia that “it arguable found that the correct This claim was not raised in the first ed information barely ‘would have [not] or the first federal the sentencing profile altered presented to ” sought Petitioner has the benefit of the is, judge,’ cor study. Baldus The district court held it rected information would materially grounds. barred on abuse We do not profile altered the judge. before the examine this in detail because the Baldus F.2d at 597 (quoting Strickland v. Wash study rejected in McCleskeyv. Kemp, ington, — U.S. -, (1984)). Under these circum stances we vacate the denial of the Gard ner and remand in order that part, AFFIRMED in REVERSED in part give district court can fresh consideration and REMANDED. to whether the justice require ends it to TJOFLAT, consider the Judge, merits of concurring this claim. Circuit part dissenting part, in which IV. VANCE, Ineffectiveness of trial counsel Judge, Circuit joins: pe second federal habeas This case comes the en before banc court alleges tition that his trial attorney ren as an appeal from the district court’s deci- dered ineffective assistance deny petitioner, sentenc sion to William Neal By pro ing phase of se motion Moore, trial. a writ of corpus. As the amend his first notes, opinion Moore majority principal issue (1) investigate gia Counsel’s failure chal- and jury; Court of unconstitutional cases in lenge composition grand (2) review; (6) appellate its up failure to follow failure inform that he could chal- investigation of the offense. lenge composition grand jury; proposed As with the Hicks amendment dis- investigate prejudice county failure to section, previous cussed in the the first federal venue; (4) change and to trial seek a failure habeas court denied the motion to amend. See request attorney’s closing the district F.Supp. at 806. transcribed; arguments use Geor- malice murder penalty on the district the death the court whether before entitled, Georgia under charge, Moore was rejected Moore’s properly 9(b) law, jury under Rule have a whether that of the writ determine abuse an Cases, imprisonment, see 28 Governing 2254 or a of life penalty, Section sentence Rules (1982). majority holds The imposed. 2254 He his should be waived U.S.C. § present his claims determination, failure to electing instead to be jury a 454, Smith, 451 U.S. on Estelle v. based by the sentenced court. (1981), 1866, 359 and S.Ct. 101 17, 1974, July the court held a bench On F.2d 1227 685 Wainwright, v. Proffitt penalty issue. From the evi- trial on the Cir.1982), F.2d 311 modified, 706 (11th prosecution and the dence adduced the 1002, denied, 104 Cir.), (11th cert. (including report, presentence a defense (1983), 508, did not L.Ed.2d 697 78 S.Ct. probation officer prepared the court’s writ, the because abuse constitute into prosecutor the had introduced which are “new and v. Smith Estelle objection) the court found evidence without dissent these respectfully I law.” Stapleton the had that Moore committed reasonably compe because a conclusions during course of an armed rob- murder the anticipa should tent aggravating bery, an circumstance that and holdings of v. Smith the Estelle ted penal- to the death subject rendered Moore majority’s I dissent from also Proffitt. ag- The court found that this ty.3 further under petitioner’s disposition outweighed gravating circumstance 349, Florida, U.S. 430 Gardner mitigating present in the circumstances 1197, (1977) (plurality), 51 393 be L.Ed.2d case, death. and it sentenced Moore to opportunity to had a Moore sufficient cause petition and claim in appeal, Supreme this Court of present On direct merit. Final patently it is Georgia without conviction because affirmed Moore’s majority’s analysis and ly, State, 861, I concur in the 233 Moore v. Ga. 213 sentence. remaining petitioner’s disposition (1975) curiam), denied, (per 829 cert. S.E.2d 3222, 910, claims.1 U.S. (1976). Supe Moore moved thereafter

I. County for a rior Court Jefferson new sentencing proceeding. The court denied May jury in Jeffer- grand On State, 239 his motion. Ga. See Moore Georgia, indicted Moore for County, son 519, denied, 67, 235 S.E.2d cert. U.S. 2, armed April 1974 malice murder and 232, (1977).4 robbery Fredger Stapleton.2 On June petitioned Superi- early arraigned Superior Moore Moore was County, Georgia, for or Court of Tattnall County pled guilty of Jefferson Court presenting sought corpus, of habeas six charges. the State writ Because to both he was entitled to remaining 4.Moore contended claims concern the in- Petitioner’s 1. grounds: proceeding the sentenc- two effectiveness of trial counsel new on alleged racially ing phase case penalty of his imposed under court had the death penalty discriminatory application of the death sentence mistaken belief such would "a Georgia. court dismissed both of The district Court,” Supreme upheld by the U.S. never writ. claims as an these abuse court, impose deciding to (con- penalty, death information relied had underlying been re facts case have 2. presentence probation re- officer's tained in Zant, See, e.g., elsewhere. Blake v. counted opportunity deny port) which Moore "had no (S.D.Ga.1981), part F.Supp. 803-04 aff'd claim). (the explain" See Moore Gardner Balkcom, part sub nom. Moore v. and rev’d in State, Court of 235 S.E.2d at 519. Cir.1983), denied, cert. F.2d 1511 Georgia trial court’s denial affirmed (1984); U.S. sentencing proceed- State, Moore’s motion for a new 213 S.E.2d Moore v. 233 Ga. corpus ground action on the that a 830-31 for such relief. Id. was the sole avenue 27-2534.1(b)(2) (Harrison Ann. § See Ga.Code 3. 1978); see also note infra

g59 grounds tion, for relief.5 evidentiary his Gardner claim.9 On After an hearing, rejected that court April 29, 1981, the district court denied Georgia and the refused pro both the se motion and the Hicks mo- grant him probable a certificate of cause Zant, see Blake v. amend, tion for leave to to appeal. F.Supp. (S.D.Ga.1981); 804-06 sought granted

On November the writ as to Moore’s sentence on writ of habeas United States ground “the of death is District Court for the Southern District of cruel and unusual applied light him in Georgia.6 His contained four of of the circumstances of the crime and other the six claims he had asserted his state id factors,” 803; relevant and denied all petition;7 habeas one of the claims Moore id. of claims, Moore’s remaining Gardner omitted was his claim —that his The appealed State the district court’s judge give trial did not him and his attor- judgment granting writ the as to Moore’s ney adequate review, opportunity to sentence, and Moore cross-appealed, chal- or supplement, probation correct offi- lenging the district court’s rulings on the presentence report sentencing cer’s before claims that the district rejected court and 6, 1979, him to death. On March while his the court’s permit refusal him to petition amend pending court, in the district petition. his panel A of this court pro Moore filed a se reversed motion to amend his grant petition relief, of to add two claims pertinent concluding that appeal.8 district court improperly had engaged in a proportionality sentence, review of Moore’s attorney, Bonner, Jr., Moore’s James C. Balkcom, 716 F.2d 1518-19 represented who had Moore in the state (11th Cir.1983) (on rehearing), and court, affirmed requested habeas thereafter and re- the district rejection court’s withdraw, his remain- ceived leave to and the district ing challenges appointed guilty pleas H. to his Hicks and Diana as substi- death sentence, id. tute counsel. Hicks immediately moved panel The 1527. also held the court for leave to peti- amend Moore’s the district court did not abuse its 5. In his habeas petition, Moore claimed that voluntarily his in 1978 and then dismissed without eighth conviction and sentence violated the prejudice Supreme after the Court Georgia proscription against amendment cruel and un- granted stay of his execution. That aborted punishment process usual the fourteenth and the due clause of petition appeal. has no relevance to this following for (1) prior present- reasons: his arrest record was petition two, 7. Moore’s federal contained claims ed to judge presentence in a four, five, petition. and six of his state habeas report "without the Petitioner or his counsel supra Although petition note 5. his federal being opportunity afforded explain a fair underpinning recited the facts claim one of his (the claim); (2) rebut it” Gardner his direct petition (the claim), state habeas Gardner it did appeal Supreme Georgia Court of was not present ground that claim as a for relief. conducted, properly prosecutor’s because the ar- guments sentencing proceed- at the close of the pro alleged ing Moore’s se amendment were not transcribed and included in the his (3) appeal; attorney provided record on elderly couple trial him brutal murder of an ineffective assist- County (1) in rural Jefferson ance of counsel because he failed to investi- shortly occurred properly before gate Moore was indicted im- challenge composition of Moore’s influenced the district grand (2) jury; failed to inform Moore that he case; judge (4) guilty plea in Moore’s trial his challenge grand jury; (3) could failed to involuntary malice murder was and unintelli- trial; change seek a (4) of venue for Moore’s gent specific because he lacked intent to kill his request closing failed to argu- that counsel’s victim; (5) disproportionate, his sentence sentencing judge ments to be transcribed for given mitigating circumstances appeal. alleged review on Moore also that the case; (6) voluntarily his waived never Supreme ‘‘[ujnconsti- Georgia Court of relied on law, Georgia his absolute under see Ga. comparing tutional cases ... death his] sen- (current Ann. version § Code 27-1404 tence [to cases]." (1982)), Ga.Code Ann. § 17-7-93 his two to withdraw guilty pleas prior entry court’s amendment, proposed 9. Hicks’ which was filed judgment against him. on October included still other claims 6. The discussion in the text omits reference to a appeal. not relevant to this federal habeas that Moore earlier filed they grant Moore leave sistance of counsel claims because had refusing to

discretion in Id. fully litigated first state been Moore’s to amend for a gave writ proceeding Court denied Moore’s and Moore no rea- Balkcom, certiorari. Moore v. relitigated. why they son should be (1984). 1456, 79 L.Ed.2d 773 his re- court held that Moore had waived maining by failing them claims to raise to state court Moore thereafter returned See Ga.Code proceeding. that first relief, seeking a writ May Ann. 9-14-51 On § County, of Butts Superior Court Georgia denied petition contained seven Georgia. His application for a certificate of alleged the State claims. Moore probable appeal. cause to fifth, sixth, infringed rights under the trial amendments when his and fourteenth Moore then filed his second federal habe- impose deciding judge, whether us, present- the one now before sentence, presentence on a re- death relied seven claims he asserted in his port information the court’s that contained petition. Moore al- second state habeas probation officer had obtained from Moore leged these claims were based new- advising rights not to him his without (the claim) ly discovered facts sixth or nov- presentence interview and to to a submit (the legal principles remaining el six present during the interview have counsel claims) that he were available when (2) claim);10 pre- Estelle v. Smith (the the brought petition. his first federal habeas report contained inaccurate sentence claim, his Gardner presented Moore also information, in incomplete violation previous which he had raised in his Ohio, Lockett v. 438 U.S. in proceeding habeas a motion for leave to Eddings 57 L.Ed.2d 973 petition. his amend Oklahoma, 104, 102 S.Ct. 455 U.S. 22, 1984, May en- On the district court (1982); (3) his he was denied dismissing a memorandum order tered rights to sixth and fourteenth denying a certificate Moore’s testimony confront the witnesses whose for the En- probable Except cause. presentence report contained in the was claim,11the court held that the de- mund (4) (the claim); er- because of the layed presentation of Moore’s claims consti- presen- contained in the rors and omissions writ; contrary tuted an abuse of the to he denied the report, tence was contention, they Moore’s were neither review, in violation of meaningful appellate newly discovered facts nor on based Stephens, Zant v. doctrine, gave new constitutional and he no (1983); (5) he 77 L.Ed.2d 235 because why as- lawful reason he should not have victim, kill specific lacked the intent to previous petition. serted them in his in he sentenced to death violation of Adopting the district court’s memorandum Florida, Enmund v. full, panel in of this court (6) order divided (1982); Zant, affirmed the decision. Moore v. Georgia being admin- death in (11th Cir.1984) curiam). (per manner; F.2d 585 discriminatory racially in a istered provided him inef- counsel his trial assistance fective II. superior re- phase of his case. The the federal courts must The doors of of Moore’s claims. The court jected each prisoners seek- always open as- remain to state rejected the Enmund and ineffective court, observing actually The district that it had re- consists of 10. The Estelle v. Smith claim claims, jected on the fifth and four two one based Enmund claim on the merits in based on the amendments and another previous' proceeding, teenth federal habeas Throughout amendments. sixth and fourteenth the claim was meritless and that the held that frequently claims opinion, refer to these this I relitigation. justice require did not its ends and, for conve as the Estelle v. Smith nience, amend the fourteenth omit reference to ment. bring challenges constitutional to the lated the standard a trial judge ap- should See Sand of their confinement. propriety ply deciding whether to consider States, ers v. United 1, 7-8, U.S. 83 merits of a claim petitioner failed 1068, 1072-73, (1963); prosecute in an earlier proceed- Noia, Fay v. ing. judge cf. must consider the “new” (“[Govern merits, claim on the petitioner’s unless always ment must be accountable to the delay in presenting it constitutes an abuse judiciary imprisonment ”). for a man’s Id. at — the writ. 83 S.Ct. at 1078. reason, judicata For doctrine of res example, For court may peti- deem the apply petitions to bar does successive tioner if, to have waived the claim after Sanders, for habeas relief. raising petition, at 83 S.Ct. at 1072.12 Habeas cor abandoned the claim during his prosecution is, however, grounded in pus principles of Similarly, it may hold that equity. Accordingly, deciding whether waived the claim if he delib- to entertain the of a claim merits contained erately it from prior petition withheld successive the court must with expectation of presenting it in a diligence consider peti with which the Id. subsequent petition. at S.Ct. at pursued tioner has Depending claim. Sanders, 1078. As the Court noted circumstances, upon petitioner’s lack these equitable prosecution bars are diligence may operate as a bar to relief. unexceptionable “[njothing because Id. (“ at S.Ct. at 1078 suitor’s ‘[A] traditions of habeas corpus requires conduct relation matter hand federal courts piece- tolerate needless ”) disentitle him to the relief he seeks.’ litigation, meal pro- entertain collateral (citation omitted). ceedings whose only purpose vex, is to expounded harass, Id. upon this delay.” 83 S.Ct. at equitable principle in Sanders and articu- 1078.13 though may

12. Even apply corpus the federal courts have brought habeas cases previously rejected merits, petitioner’s prisoners. the the claim on judge a habeas will entertain if the it Congress general 13. codified petitioner principles the justice of establishes that the ends of 9(b) relitigation Sanders in Rule of Governing be the Rules would Sanders, served of the claim. 16, (hereinafter 9(b)), Section 2254 Cases 373 U.S. at 83 S.Ct. Rule see at 1078. The (1982); 28 U.S.C. jus- § 2254 Sanders elaborated on this see abo 28 U.S.C. "ends of 2244(b) (1982). 9(b) provides § Rule tice” test as follows: as fol- lows: involved, applicant If factual issues are the hearing upon showing entitled to a new that may A second or successive be dis- evidentiary hearing prior applica- the judge on the allege missed if the finds fails to purely legal tion not full grounds fair.... If new or different for relief and the involved, questions applicant may or, are prior the be determination was on the if merits hearing upon showing entitled to a grounds new an alleged, new different are the intervening change judge in the law or petitioner some other finds that the failure of the justification having grounds failed to prior petition a cru- raise assert those in a consti- point argument prior applica- or cial tion. Two tuted an abuse of the writ. points pleading further should be noted. burden of initial an abuse of the First, foregoing 9(b) state, the enumeration is not intend- writ Rule under rests on the see exhaustive; Sanders, 17, 1078; ed to be the test is "the of ends 373 atU.S. 83 S.Ct. at Price v. justice” Johnston, finely particular- and it be too cannot 334 U.S. 68 S.Ct. Second, applicant although ized. burden is on the the 92 1356 L.Ed. a district court that, although ground to show the new may sponte, raise the issue sua see Jones v. F,2d Estelle, 159, application against (5th Cir.1983) (en was determined on him 722 164 banc), denied, prior application, 976, 2356, the merits on a the ends of cert. 466 U.S. 104 S.Ct. justice (1984). would be served 80 redetermination the abuse Once of the ground. raised, of the petitioner has been writ issue “has 16-17, (citation omitted). answering allegation Id. at 83 at 1078 burden and of applica- proving Price, For further discussion the standard that he has not abused the writ.” 292, 1063; petitions, see ble successive v. at 334 U.S. 68 S.Ct. at see Kuhlmann also Fun Wilson, 2616, Wainwright, (11th 106 S.Ct. 477 91 L.Ed.2d chess v. 788 U.S. F.2d 1445 1986) Although (per curiam); Estelle, 364 Sanders involved habeas Cir. 722 Jones F.2d prisoners, Sanders, relief for federal its standards at 164. As Court noted in 862 telle, (5th A F.2d 1275 Cir. Unit relief 632 denied may also be petitioner A deliberately bypass 1980). the state contends Once though he did even his claim in litigate delayed presentation opportunity petitioner’s The court proceeding. writ, prior habeas claim constitutes an abuse if the merits claim on litigate his refuse satisfying the burden of petitioner has raise it in the his failure it finds delay is excusable. judge that habeas of “inex result proceeding was

prior explana sufficiency petitioner’s Paprskar Es neglect.”14 See cusable judge’s is a matter committed tion cert. Cir.), telle, (5th 1006 F.2d supra note discretion. 13. sound denied, petitioner’s failure to assert Whether Funchess v. (1980);15 see also L.Ed.2d proceeding is earlier his claim an habeas (11th Wainwright, 1443, 1445 Cir. F.2d course, the' depend, excusable will Kemp, curiam); Stephens 1986) (per curiam), under of his conduct reasonableness Cir.1983) (per (11th 1300, 1303 F.2d example, For circumstances. denied, 1043, 105 rt. ce to have pro petitioner se Zant, may deem a (1984); Potts v. if can said that a his claim it be waived (5th Unit B Feb. Cir. standing in his person shoes reasonable 1981), the claim.16 See Price Haley v. Es brought (1981); could have petitions], determining that the more meritorious second so an abuse principles [for "[t]he get considera- petitions quicker the sound discretion and fuller addressed to can are writ] the of the federal major judges. Theirs is the tion.”). trial just sound administra responsibility for the remedies, and collateral of the federal Prichard, 661 F.2d City Bonner v. 15. In judgment as to whether a must be the theirs Cir.1981) (en banc), this court application be denied shall or successive second precedent decisions of adopted binding all as Sanders, of the merits.” consideration without prior to Circuit handed down the former Fifth 1079; Jones v. see also 1, 1981. October Estelle, 722 F.2d at 165. 14.Equity contuma- has never countenanced petitioner Arguably, could considered Thus, court will not a federal conduct. cious pro previous having proceeded in his se deliberately a claim that entertain ineptly performed as to so action if his counsel asserted, or, deliberately with- if withheld — drew—with effectively him without counsel. rendered bringing it later if his the idea of contend, case, even does In this unsuccessful. attempt habeas relief is to obtain suggest, counsel were in- ne- equity inexcusable countenance Nor will ept. ingredients petitioner possessed the glect. If the prosecuted the counsel In a case in which law) (the simply but claim facts and of his ineptly so petitioner's first habeas prior petition, bring a it in his neglected having court, 9(b), as may petitioner could be considered pursuant de- Rule the federal se, may petitioner little pro There are sound have proceeded to consider the claim. cline the for the need policy demonstrating reasons for this rule: difficulty that his failure in convictions; (2) need finality the of state court particular claim in his first a include procedural rules enforcement of state to aid barring justified or in the circumstances. was excusable of on the merits consideration the however, not, majority’s the at- endorse I do (when seasonably presented the state not claims has declined engraft analysis tempt of ineffective assist- on the merits' to decide claim the sense, counsel, the sixth amendment of in ance default); (3) procedural petitioner’s of because the abuse of the writ. In the doctrine of into a scarce resource courts constitute federal the view, example, not majority’s Moore did for needlessly litigation, piecemeal which thus and present when he failed to the Great Writ abuse prevents other the courts’ dockets taxes litigants claim in his first federal Estelle v. Smith having speedy of determination from attorney’s petition, failure "[a]n because habeas avoided; claims, be should their recognize potential the intersection in 1978 petitions har- of successive consideration sentencing pro- Georgia capital Miranda and Estelle, Haley v. 632 F.2d the state. asses performance ceedings, fall not does cause ("Rule 9(b) 1980) (5th Cir. A 1276 Unit range professionally of 'the wide outside repetition iden- the to eliminate intended (quoting competent Ante at 854 assistance.’” litigation prolongation of and the tical claims 668, 690, Washington, 104 U.S. v. 466 Strickland piecemeal in a fash- presentation of claims the 2052, 2066, (1984)). L.Ed.2d 674 80 S.Ct. 9(b) advisory ion.”); note committee’s Rule approach the doctrine This emasculates screening ("This out the subdivison aimed failure to the writ the include large abuse of because volume petitions [of from [the] abusive

863 Johnston, 266, 292, depending peti v. 68 writ differ whether S.Ct. will Booker v. represented by counsel (1948); tioner was 1356 92 L.Ed. denied, cert. (11th prosecution.”), earlier writ Wainwright, 1376-78 764 F.2d Balkcom, 976, 104 (quoting Mays v. Cir.) 631 F.2d McCotter, denied, see also Hamilton v. (1984); cert. Cir.1980)), (5th Cir.1985). sum, (5th In if F.2d 178-80 (1985); 975, 106 S.Ct. petitioner prosecute a claim when fails to Haley, A petitioner 1275-76. 632 F.2d at legal present, its factual and bases are two hand, counsel, other on the represented permissible: are either he is de inferences his claim if waived deemed to have be claim, liberately withholding perhaps the attorney competent could reasonably asserting it in a subse with the idea the claim. recognized prosecuted simply neglecting to quent petition, or he is Estelle, 722 F.2d (5th v. See Jones pursue it. (en (“Given Cir.1983) banc) elemental [the] adversary system, case, we in our the contends role of counsel State peti- into ex inquiry Moore’s failure to assert his first think it inevitable the claims now before us was inexcus- omitting a claim from an earlier cuse ("/« prosecutions, always excused. It will Const. amend. VI all criminal almost be a claim will theories, right enjoy one of under either of two the accused shall to have the be excused ... every defence.”) apply nearly The first (empha will case. which for his Assistance Counsel petitioner’s previous Blackburn, attor- added); is that excuse ney sis see also Daniels ineffective; attorney should have Cir.1985) (5th curiam) (per F.2d legal prosecuted claim—its basis the omitted ("[T]here assist is no constitutional readily be- being failed to do so available—but attack on a con ance of counsel in a collateral incompetence, incompetence. This cause of his Missouri, viction.”); Williams v. turn, effectively petitioner without rendered (8th Cir.), Thus, deciding whether inexcusable counsel. (1981) (“[Habeas cor litigat- petitioner neglect preclude should proceedings pus proceedings] are civil cov successive omitted claim in the applies Amendment which ered the Sixth petitioner’s court must treat the district pendency only during of the criminal litigant. pro se Under omission as that of a case.”); Bensinger, 480 F.2d Ganz litigants, applicable to such relaxed standard 1973) (sixth inapplicable Cir. out petitioner probably to liti- court will allow trial); see also Penn side the context of criminal gate his claim on the merits. — U.S. -, -, Finley, sylvania excuse, contrary for the second The rationale (1987) (no right to excuse, assumes that of the first to that attack). counsel on collateral attorney petitioner’s previous was not Second, policies of federal habeas ineffective; prosecute failed to require habeas counsel’s "ineffec- that a do legal un- because its basis was omitted claim petitioner’s failure to excuse the tiveness” circumstances, the court available. Under these timely peti- present manner. The in a because it is based on entertain the claim will just resolu- obvious interest tioner has an "new law.” claims, but he does not constitutional tion of his pe- Following majority’s approach, a wise guaranteed right constitutionally to effec- have a theories, alternatively, will assert both titioner Countervailing considera- tive habeas counsel. response contention that his to the state's conviction, finality deterring tions—such claim earlier is the omitted failure to claims, sandbagging of established counsel’s court, petitioner satisfies the inexcusable. If the must the doctrine that a habeas case, majority in this has satisfied the as Moore actions of his attor- for the held accountable law, on new the court his claim is founded that interest, petitioner’s ney outweigh assum- the If he adjudicate on the merits. — his claim must least, ing, counsel was not so ineffec- at that his theory his of the court that fails to convince presence irrele- in the case as to render his tive theory the was extant relief is new—because Indeed, attorney consti- if ineffectiveness vant. proceeding- previous habeas of the the time 9(b) only purposes, the for Rule an excuse tutes then, argue, the court must find will litigation piecemeal of claims deterrent In either "ineffective.” his was that avoiding a in be counsel’s self-interest will the court entertains case the result is the same: lawyer prosecuting charge, brought by the the concept of inex- merits. The the claim on the pro- petition, that he was petitioner’s successive neglect exist. ceases to cusable fessionally incompetent. majority's approach to abuse of the writ neglect” Finally, inherent in the "inexcusable any support logic. analysis It also lacks defies lawyer negligence First, is the notion that standard policy. is no precedent there from excusing ground failure to the not a right of to effective assistance constitutional timely fashion. claim in proceedings. See U.S. a constitutional counsel in habeas III. rep- Moore was notes that The State able. throughout his collat- by counsel resented in “new law” claims presents Moore two death convictions attacks his eral petition. The first current habeas his newly no discover- sentence, there are that Smith, claim, on Estelle v. based sup- facts case—the in Moore’s facts ed (1981), 1866, 68 L.Ed.2d 359 being claims well of his porting each to inform him of his the State failed that brought his first the time known right his right to remain silent and federal constitution- the —and probation the counsel consult with plainly facts were implications al those him, in presentence officer’s interview law. the relevant case discernable sixth, fifth, of the and fourteenth violation new- acknowledges there are no Moore claim, The second based on amendments. facts; disagreement with his ly discovered Wainwright, 685 F.2d court, panel State, and the district the the (11th Cir.1982), 706 F.2d 311 modified, of the legal significance concerns (11th Cir.), reasonably that a contends facts.17 Moore is that standing in the shoes lawyer, competent sentencing judge him the denied counsel, did not have previous habeas the witnesses cross-examine confront and the constitutional the tools to fashion probation offi upon statements the whose in claims, recognized Estelle explicitly report. To deter presentence cer based his concerning the sen- Proffitt, Smith lawyer should mine reasonable whether receipt into evidence tencing court’s Moore recognized these when have claims report. presentence probation officer's petition, it is filed first federal contention, true, if Moore submits that factual context necessary appreciate excuse, which the dis- constitutes a lawful begin my they I which arose. therefore accepted panel should trict analysis with an examination Geor law, delayed asser- for the a matter of gia manner death scheme claims. these constitutional court, prosecution, the trial which premise disagree Moore’s basic I Moore’s sen and the defense conducted reasonably competent regarding what discussing tencing proceeding. In Moore’s recognized at the time lawyer should have claims, aware that his defense we must be of Moore’s present them to the sen counsel did not there the time Moore filed that

At given opportunity tencing court when precedent for the constitutional ample is, so; report, presentence to do point makes. This objections Moore now prepared now contends was which Moore analyzes one the Geor- clear when becomes into evidence in violation and introduced scheme, as it capital sentencing existed gia Constitution, into was admitted evi sentencing proceed- at the time of Moore’s objection an adver dence without court, the procedures ing; proceeding.18 sary counsel followed prosecutor, and defense consti- conducting proceeding; and the when precedent available

tutional A. relief. Ac- sought federal habeas he first law, Georgia capital sentencing as it I of discretion cordingly, find no abuse as it is same existed much refusal to entertain district court’s Georgia legislature enacted today.19 The question. of the claims merits is, (1977). This issue how- disagreement on the with the State ever, v. Smith court. point his Estelle before the "new law” concerns parties’ dis- claims. I discuss and Proffitt in Part VI pute Moore’s Gardner over my opin- statutory Part III citations in 19.The provisions were in effect at infra. ion are provi- 1974. These of Moore’s trial in time object at the Moore’s failure to in force with few substantive sions continue procedural default. hearing may a constitute changes, here. none of which relevant are 72, 97 S.Ct. Wainwright Sykes, U.S. v. See to light jury phase Court’s a either of the case law Georgia, v. Furman decision proceed judge. elect before trial 2726, 33 L.Ed.2d 346 seeking punishment, capital the state Georgia’s previous which struck down proving beyond had the burden of a reason- See penalty statute. death Ga.Laws able doubt defendant’s case was (codified as amended in scattered sec- eligible penalty for the death by establish- Code); Georgia 1973 Ga.Code tions of the ing statutory aggravat- one or more of ten (codified as amended in scattered sec- Id. 26-3102;22 id. circumstances.21 § Code). Georgia The new law tions of the 27-2534.1(b), (c); Gregg Georgia, see § capital trial. The provided for a bifurcated 153, 164-66, 2921- part of the trial concerned the defend- (1976) see (plurality); guilt part or innocence. The second ant’s also Ga.Code 27-2537(c)(2) (Harri- Ann. § imposed: concerned the sentence be 1978). son The only state could introduce imprisonment.20 or life Ga.Code death aggravating that evidence of circumstances 27-2503(b) (Harrison 1978). As in Ann. § of which it had notified the defendant be- trial, guilt phase of the case of the 27-2503(a); Id. see also Potts fore trial. sentencing phase defendant was enti- § State, See id. jury proceeding. The Ga. S.E.2d tled to a could, however, waive his defendant Court, vile, Gregg Georgia, tonly 20. The horrible or inhuman in that in- 163-64, 2909, 2920-21, torture, mind, depravity ag- volved of or an (1976) (plurality), L.Ed.2d 859 tencing phase viewed this sen- gravated battery to the victim. integral part as of the trial of a an (8) The offense of murder committed was death case. officer, against any peace employ- corrections engaged perform- ee or while fireman statutory aggravating

21. The ten circumstances of ance his official duties. 27-2534.1(b) enumerated in section were as fol- (9) The offense of murder was committed lows: in, from, by person escaped a or who has murder, (1) rape, rob- The offense of armed custody peace place lawful of a officer or bery, kidnapping by per- or was committed a lawful confinement. a for a son with record of conviction (10) The murder was committed for the capital felony, or the offense of murder was with, purpose avoiding, interfering pre- or by person a committed who has a substantial venting custody place a lawful arrest or in a history of serious assaultive criminal convic- confinement, of lawful of himself or another. tions. murder, (2) rape, The offense of armed rob- 22.Section 26-3102 stated as follows: bery, kidnapping or while the was committed engaged in the commission of offender was Where, upon by jury, person a trial a capital felony, aggravated battery, or another punish- convicted of an offense which be the offense of murder was committed or death, by able a sentence of shall be death engaged in the com- while offender jury imposed unless the verdict includes a burglary or first de- mission arson in the finding statutory aggravating of at least one gree. and a circumstance recommendation that murder, (3) The arm- offender his act of imposed. statutory such sentence Where a robbery, kidnapping knowingly created ed or aggravating circumstance is found and a rec- great person a risk of death to more than one made, of death is ommendation place public weapon or in a means of a shall sentence the defendant death. Where normally device which would be hazardous to a sentence of death is not recommended person. the lives of more than one jury, the court shall sentence the defend- (4) The offender offense of committed the imprisonment provided by Un- ant law. another, pur- murder for himself or for the jury trying finding less the the case makes a thing pose receiving money any other or statutory aggravating of at least one circum- monetary value. and recommends the death sentence in stance officer, judicial The murder of former verdict, its the court shall not sentence the officer, judicial attorney or district or solicitor death, provided defendant that no such or former district or solicitor finding statutory aggravating circumstance duty. because of the exercise of his official necessary shall be in offenses of treason or (6) The caused or directed another offender hijacking. provisions aircraft of this sec- murder as murder or committed commit shall affect sentence when the case agent employee person. or of another murder, jury judge tried or without when the rape, rob- offense of armed accepts plea guilty. outrageously bery, kidnapping or wan- imposition the B. The could avoid defendant ways. any of three penalty the death sentencing hearing Moore’s 1974 fol- the court on to convince The first was procedures. these On June lowed that the state’s verdict motion for directed pled guilty charges Moore to the of malice aggravating failed to establish evidence his robbery murder and armed and waived second was to con- The circumstance.23 right sentencing. jury The court sched- carry state failed to jury that the vince the sentencing hearing in case uled the Finally, on that issue. proof its burden of 21,1974, July probation its and directed urge jury not to could the defendant prepare presentence report.24 office to penalty because of miti- impose the death Following procedures, normal Probation present in the case. gating circumstances Moore, inquir- Officer Rachels interviewed law, had Georgia the defendant Under wide ing into the circumstances of the murder introducing mitigating evidence. latitude robbery and armed offenses he had com- 164, 96 at 2921 428 U.S. at Gregg, background. mitted and into his 644, 647-50, State, 235 (citing Ga. Brown v. contends that Rachels violated Miranda v. (1975)). 925-26 S.E.2d Arizona, I sentencing proceeding have de- (1966),by advising him of clearly adversarial. Like was scribed rights to remain to have silent and trial, began prosecu- criminal interview, presence of counsel statement, explaining opening what tor’s and that Rachels violated the sixth amend- prove and how it intended to the state must by interviewing him notifying ment without satisfy its After the defense’s burden. attorney. purposes appeal, For of this statement, opening could reserved which allegations. I assume the truth these At case, pros- until the close of the state’s time, the same I note that these constitu- evidence, presented its which the ecution consequence tional violations were of no defense entitled to cross-examine. report until Rachels’ was received into evi- case, the When the state rested its defense dence and thus made available to the trial right seek a on had the verdict directed court. aggravating circumstances issue. If At some time verdict, the court did not direct a the de- hearing, prosecutor informed Moore’s the state's evidence of fense could rebut attorney that the state seek the would aggravating and could circumstances aggravating death based one state, mitigating evidence. circumstance—that Moore had committed turn, had the to rebut the defendant’s question the murder in while he en- evidence, of all the both case. At the close gaged robbery. in the commission of armed argued jury, sides their case to the sentencing hearing, prosecutor At the law, jury on the court instructed presented the state’s case as if he were jury retired to deliberate its verdict— establishing guilt the defendant’s as well imprisonment. the death sentence or life seeking a death sentence. He called imposed judge The trial then the sentence examiner, four witnesses: medical two jury’s verdict. accordance with Georgia Investigation agents, Bureau of Cases tried to the court instead of to the County, procedures, except and the sheriff of Jefferson Geor- jury followed the same gia, collectively judge replaced jury that the trial as the who established how Moore and the sentencer. had committed the crimes. Moore’s finder fact trial imprisonment, purpose judge’s 23. The trial determination as to the suffi- death or life for the ciency aggravat- supporting determining place of the evidence whether to the defendant on subject judicial re- circumstances was probation probation and the conditions of his 27-2537(c)(2) (Harri- Ga.Code Ann. § view. See (Harri- supervision. Ga.Code Ann. 27-2709 § 1978). son 1978). why son The record does not disclose disregarded statutory prohibition the court Georgia judges request law authorized trial in this case. cases, presentence report a cept in all ex- criminal involving punishable those offenses stated, sponse, attorney Moore’s “That these wit- each of cross-examined counsel Honor, agreeable, Your and at the addition, offered same prosecutor the In nesses. time, copy of the war- we would like for a report evidence presentence into the go prosecutor calling rants to also.”25 also in chief without State’s case the exhibits, including In introduced various other stand. to the witness Rachels Officer the and of the crime photographs of victim prosecutor stated report, the offering the scene, diagrams, report, a lab re- crime and Defendant has for the "Counsel shotgun. Moore’s counsel ex- the victim’s report so that will be copy of the a ceived object to to the introduc- record, pressly re- declined which includes included exhibits, including, I any of of these as been submitted ports letters that have and noted, report.26 presentence the Af- In re- have the Defendant.” by Counsel for prosecutor attorney, to by prompted con- and would have the call statement Moore’s 25. This evidentiary light record stand. Even had the of the Officer Rachels to the sidered proceeding, testimony, which report by first state habeas live Moore’s State authenticated the contains, by among things, a statement other prevented report the the defense still could have attorney gave a Moore’s that he Officer Rachels being evidence. The defense received into day report of the presentence on the copy the report that the was not could have established me, hearing, did the convinces as it recording merely because it a admissible below, district court habeas court and the recollection, present and that if the Rachels’ VI, claim is Moore’s Gardner Part see infra bring prosecutor the contents of the wanted to allega- present Contrary to baseless. Moore’s report have to do before the would so tions, inspect attorney opportunity to had an through testimony, albeit Rachels’ live refreshed prosecutor report the presentence before the Assuming report. the reference to the validi- object to if he evidence and offered it into support ty argument, had solid of this which report inaccurate thought contained the evidence, Lilly, An the law of see G. Introduction me, To this or material omissions. statements (1978); see to the Law Evidence 231-32 also object explains why not to the counsel did fact report (E. Cleary 2d McCormick on ed. § Evidence or, ground seen it that he had not on the 1972), proceeded prosecutor would have to the it, having sufficient time to seen had not had learned Rachels he had con- elicit from what any inaccuracy in client about consult with his cerning of both the murder the circumstances report. the robbery of Moore’s and the armed and back- fact, unequivocally demon- record In the given ground. Any Moore had Ra- statements counsel communicated strates that defense admissions and chels would have constituted concerning presentence re- the Rachels Officer precluded the would not have been thus prior to the sentenc- port on occasions several hearsay would have rule. These statements hearing, Rachels with ing and that he furnished however, objection, subject on Miranda to been vouching character Moore’s several letters for Arizona, previous aca- records of various Moore’s and (1966), and sixth amendment Apparently as a matter of achievements. demic being grounds argument that Officer Ra- —the attorney this strategy, chose to Moore's chels, interviewing particularly Moore through judge mitigating trial evidence to the committed, focusing were how the crimes on presentence report probation rather officer’s the police occupied position to that of a similar testimony through of witnesses. the live than custody interrogating a defendant dur- officer strategy for the failure account This proceedings. ing stage of his criminal a critical the well-established counsel to invoke defense given Moore Mi- Rachels had Because evidentiary 26 and to note rules discussed infra warning notified Moore’s randa had object report’s into evidence. to the admission interview, commencing the lawyer the before why strategy explains Perhaps, same also the suppress urged court to have defense could object report did not counsel defense any Further, obtained from Moore. information Rachels grounds Moore sixth fifth and any objected to have the defense could strategy, pursuing counsel In asserts. now may have ob- background Rachels information report’s appreciated that the fact must description Moore as hear- robbery sources than tained from other armed the murder and contents, prove of the say, the truth prosecutor estab- if offered simply replicated the facts grounds. sentencing hearing clause and thus caused on confrontation at the lished prejudice. no sum, kept attorney could have Moore's document, report, out presentence entire presentence prosecutor When the offered evidentiary grounds. As on obvious evidence pre- attorney, he wished to report, if Moore’s concerning testimony for Officer Rachels’ it, object- using could have court from clude the report, could substance into evidence on report’s admission ed good objections on Miranda faith have made report authen- ground had not been any grounds statements to counsel prepared it. who probation officer ticated any information Moore made Rachels founded objection been well would have This rested, ter the State presented defense recess, transcribed. After another the trial its case. Moore’s counsel called four wit- judge death, sentenced finding Moore to nesses, including defendant, to estab- beyond a reasonable doubt Moore was mitigating lish circumstances. engaged in robbery armed at the time of Following lunch, murder and mitigat- that there were recess the trial no judge arguments heard the prosecu- circumstances outweigh sufficient defense, tion and of the none of which was this aggravating circumstance.27 statements, 1978, derived from those and particularly given con- ber the state of the law grounds any frontation clause to statements Ra- parts in 1978. See IV and V. infra chels obtained from other sources if offered to prove require- the truth of their contents. The following 27. The court findings: made the sentencing ment that the decisionmaker find at question punishment, prior On the of to the statutory aggravating least one circumstance be- imposition penalty, of statutory the death one doubt, yond view, my a reasonable in means aggravating by circumstance is found the panoply that the full protec- of constitutional exist, Court to to Fredger wit: the murder of during prosecution tions available the of a crim- Stapleton accused, was committed while the applied sentencing inal phase case to the of Moore, William engaged Neal was in the com- 1974, capital Georgia cases in in and thus to the is, capital felony, mission of another that arm- sentencing phase rights of Moore’s case. These robbery ed Fredger Stapleton. of the said rights included the implicated in Moore’s Estelle Also, robbery I find that the Fredger armed of v. Smith and claims: the fifth amend- Proffitt Stapleton accused, was committed while the right compelled ment oneself, not to be to incriminate Moore, engaged William Neal in the com- Arizona, 436, see Miranda v. 86 capital mission of felony, another that is mur- 1602, (1966); S.Ct. 16 L.Ed.2d 694 the sixth Fredger Stapleton. der of the said counsel, right Mempa amendment to see v. Rhay, 389 U.S. 88 S.Ct. penalty The death Georgia, statute of (1967); 55, Code Alabama, Powell v. 53 S.Ct. twenty-seven, twenty-five section thirty-four (1932); 77 L.Ed. 158 and the sixth amend- one, point requiring proof aggravating of ment cir- to confront cross-examine the witnesses, justify prosecution’s imposition cumstances to Douglas Alabama, the of the see v. death by 380 U.S. (1965); 85 enacted S.Ct. 13 L.Ed.2d the General 934 Texas, Assembly Georgia, signed Pointer by 380 of U.S. into law the (1965). Having 13 L.Ed.2d Georgia, 923 created an Governor of and held to be constitu- adversary proceeding criminal in which the tional Georgia the Court of aggravating factfinder must find an State, circum Coley thirty-one Georgia, versus the two beyond doubt, stance a reasonable as a condi eight twenty-nine. isIt therefore the function precedent imposition of the death apply this Court to this statute to the facts penalty, Georgia would have violated the Consti determining punishment this case in the if, during sentencing phase tution capi the of a imposed. be This I have done. trial, tal it rights denied the defendant the guaranteed during guilt Constitution him adjudged IT IS FURTHER ordered and phase prosecution. Gardner v. Flor Cf. day September Court that on the thirteenth ida, 349, 360, 1197, 1206, defendant, seventy-four, nineteen William ("Our (plurality) L.Ed.2d 393 belief that Moore, Neal shall be executed the Director debate between adversaries is often essential to Department of the State of Corrections at truth-seeking requires function of trials us penal such designated institution be recognize importance giving also to coun by said Director.... opportunity sel an may to comment on facts which influence capital decision in SO, I aggravating FOUND circumstances. I cases.”); York, Herring 853, 862, New U.S. found, find, also but I didn’t need to (1975) (not purposes finding, mitigating of this circum- ing importance advocacy of counsel in the stances aggravating insofar as the circum- factfinding process trials). of criminal The con stances Mitigating were concerned. means duct of the court and of counsel circumstances, good being your willing- those prosecution supports my case Moore’s view your forthrightness meeting ness and what Georgia's capital sentencing that scheme accom terrible, you experience. must terrible rights, modated these basic constitutional in credit, go So that does to your but for the cluding specific rights constitutional con Court, purposes of finding, this for this cerning I presentence report Moore seeks to good apply your could not in conscience present proceeding. enforce in the habeas If wipe aggravating case sufficient out the attorney Moore's trial arguments could have made these statutory July got sentencing hearing, circumstances. We’ve this. If it, logically going philosophy follows we’re [sic] habeas about and if that, presented could permitted them I’m People when filed do I'll do it. Moore's first federal precious place Novem their homes—the most a man (1981). I not be Because do

IV. principles artic lieve that the constitutional law in 1978 the state A review of ulated Estelle v. Smith were type sixth the fifth demonstrates “ rule[s],” Reed v. ‘new’ constitutional i.e., described, I have amendment claims Ross, U.S. v. Smith Estelle Moore’s might excuse 82 L.Ed.2d reasonably com- claims, available to were failing to invoke petitioner from parts of In the next two attorney. petent time, I at an earlier believe them prece- specific I opinion, discuss attempt now to relief under seek of Estelle Smith antecedents dential principles is an abuse of the writ. those majority’s con- Contrary to Proffitt. Zant, Potts v. antecedents clusion, these I believe 1981), Unit B Feb. Cir. the tools Moore with provided in his claims fifth and sixth corpus petition. federal habeas Smith, sua judge, Estelle In trial under- sponte, ordered that the defendant A. examination to determine go psychiatric a infringed his State claims that the Moore capital for a competency to stand trial his against self-incrimi- right fifth amendment subsequently found the judge crime. The right to amendment and his sixth nation trial, and, following competent a defendant in- Rachels Probation Officer when counsel capital crime. him of the jury convicted Mi- him a giving him without terviewed stage proceeding, penalty At the ad- giving counsel warning and his randa court-ap- testimony of the offered the State in- These notice of the interview. vance had examined pointed psychiatrist, who his operated to subsequently fringements competency purposes, solely for defendant contends, the trial detriment, when Moore dangerous- future prove the defendant’s contained on information judge relied imposi- ness, precedent to the a condition determine report presentence Rachels’ Basing his testi- penalty. tion of the death alleges that he was sentence. his examination, the competency mony on his a fifth he had that properly warned that that he believed psychiatrist testified silent, or that right to remain dangerous. always be the defendant would used he revealed could information testimony, man- jury, relying on this alleges that he him. He further against penalty. See Estelle the death dated right sixth amendment told his was not 456-60, Smith, at 101 S.Ct. 451 U.S. at argues, with counsel. Moore to consult 1870-71. that is excused agrees, majority Court, affirming unani- allegations in these having presented Circuit, former Fifth panel mous petition because the his earlier psychia- use of the that the State’s held explicitly recognize that did not fifth, testimony had violated trist’s sixth amendment fifth defendant’s Find- sixth, amendments. and fourteenth capi- stage of a apply to the rights analogous examination ing psychiatric in Estelle v. its decision proceeding until tal in Miranda interrogation 68 to the custodial Smith, home, a situa- they such home; encountered in when are and to be in can have—is So, does ever like that if the Court I asleep, tion. require feel I don’t probably man was man, punishment is when mandatory be, know, any person not this or for —that will have home, they specify by law what offenses asleep to be any person, to be but by one the electric chair—that intruder, suffered be these when a armed with that’s invaded probably be that statutory will offenses necessarily kill prepared weapons, that’s in his person killed is robbed and (or weapon be there otherwise the wouldn't home, dis- mandatory, as contrasted intruder), that probably an hands aggravated cretionary, statutory circumstanc- injustice another highest that invasion can do. chair electric probably warrant the Now, anyone es will imagine only canI justifies me imprisonment. life That without an armed an intruder invaded finding I made. making through go they weapon, the fear that must Arizona, (footnote omitted). sum, the court held the Court held that the that “Smith did not establish a princi new defendant should have received a Miranda ple of federal Id.; constitutional law.” see warning psychiatrist before the inter- Procunier, also Muniz v. 760 F.2d viewed Smith, him. Estelle v. See (5th Cir.) (decision of new Fifth Circuit that 466-69, 101 S.Ct. at 1875-76. Further- Supreme Court, Smith, Estelle v. more, the Court unanimously concluded saw the State’s conduct “as violating clear that under the sixth and fourteenth amend- ly law”) established constitutional (empha ments, the psychiatric examination was a added), sis stage critical of the criminal proceeding, and thus the State should forewarned Holdings of the former Fifth Circuit are the defendant’s attorney the results of binding upon this court unless overruled that examination could be used other than an en banc decision. See City Bonner v. for a determination of his compe- client’s Prichard, Cir. tency to stand trial. Because (en 1981) banc) (adopting as binding prece informed, had not been so the State had dent all decisions of the former Fifth Cir denied the defendant his to consult cuit handed down prior 1,1981). to October with counsel stage a critical Because we took banc, this case en we have proceedings. 469-72, id. the opportunity to overrule the Battie hold at 1876-77. step if that is desirable. I am uncon Subsequently, predecessor our court held vinced, however, that Battie was decided apply wé should Estelle v. Smith erroneously, and Judge Godbold, unlike I retroactively. Estelle, See Battie v. 655 would therefore reaffirm holding its that (5th Cir.1981). 696-99 The court Estelle v. Smith spring did not full blown reached this by relying decision two- and warning without into the law of crimi pronged test, part the first of which is procedure.28 nal Furthermore, ignor even relevant to the issue presently before us. ing Battie, an investigation of Judge what Specifically, the court stated that although Godbold terms “the state of the law in “a decision which establishes a princi- new 1978,” November see at 851 reveals ante ple of only will be law” prospectively ap- that case law existing then “laid the basis plied, (emphasis added), id. at 697 deci- “[a] constitutional Engle [Moore’s] claim.” sion merely which existing restates law or Isaac, v. 456 U.S. simply which applies already established 1573, 71 L.Ed.2d 783 law a set facts different from those gave which original birth to the principle is B. given application,” retroactive id. for- mer Fifth Circuit then state of traced the law in when Moore the law Smith, Estelle v. filed his first federal and con- dem- cluded “the holding that onstrates Smith that he followed cannot be excused for logically from the itself,” having Miranda recognize decision failed to allege id. at noting that both cases v. were Estelle Smith claim. v. Estelle Smith “concerned with official custodial merely interro- was the refinement of constitution- gations anof accused and the principles use of al state- that Supreme Court had ments from obtained established; accused already without an Moore therefore had attorney in such prove ample circumstances to thread from which to weave the fifth against State's case accused.” Id. sixth amendment recognized claims Judge Godbold’s discussion past, limited of Battie lawyer that a reasonable lacked the distinguish fails to adequately question de claim, "tools” to raise such a then I submit that cided in today. case from that one we face I obligated this court is prece reconsider our think it adopt Judge is clear that if we Godbold's holding dent Estelle Smith retroactive. See argument, we eliminate the foundation of Bat- — U.S. -, Hardy, Allen Judge tie. If Godbold in fact means that the (new constitutional stan Supreme Court's decision Estelle v. Smith rarely applied dards retroactively). unexpected, was so such clear break with sought rights he first federal ha- where of a case when substantial criminal affected,” relief. including beas accused be sen- tencing probation revocation); In re its Estelle v. Smith years Fifteen before Gault, 387 U.S. at 34-42, 87 S.Ct. at 1447- decision, Supreme Court established (right during juvenile to counsel delin- fifth amendment safeguards protect quency proceedings); United States v. questioning. Mi In rights custodial Wade, Arizona, randa (1966), (plurality) (majority the L.Ed.2d 1149 the well known “Mi agreeing announced Court that sixth Court that “there can randa warning” and stated stage” to counsel attaches “critical the Fifth Amendment no doubt be proceedings), provided Moore with the tools of criminal privilege available outside which could have crafted his claim proceedings protect and serves to rights fifth and sixth amendment settings in their free persons in all which stage attached at the of his trial as any significant is curtailed in dom of action guilt stage. agree well as at the I cannot being compelled to incriminate way from Judge Godbold’s view that 1978 a Miranda, in In re Following themselves.” recog- reasonable could not have Gault, 1428, 18 presented argu- nized and a non-frivolous further ex ment that the standards these cases estab- protection the fifth amend tended the apply during lished should also the sentenc- case, argued the state ment. ing stage capital of a trial.29 bifurcated right against should self-incrimination supported My conclusion is two other courts, apply juvenile pro because significant especially deciding factors ceedings in those areas were “civil” rather failing Moore can excused for whether Court, however, “criminal.” The re than his Estelle v. Smith argue claim in his accept such a mechanical view fused First, amendment, finding it “clear that the fifth Moore’s claim arose in the context of a availability privilege does not Following capital case. proceeding in upon type which turn in, among others, Gregg invoked, decisions Court’s protection upon but the na its 153, 2909, Georgia, v. 96 statement or admission and the 428 U.S. S.Ct. 49 ture of the 49, Id. v. (1976) (plurality); it at 87 exposure which invites.” Proffitt Florida, 242, 2960, S.Ct. at 1455. 428 U.S. 49 (1976) (plurality); Wood 913 and L.Ed.2d expansion of the The Court’s Carolina, 280, North son v. 428 U.S. 96 right against self-inerimi- fifth amendment 2978, (plurality), S.Ct. 49 L.Ed.2d 944 above, along its deci- nation described recognized lawyer could have a reasonable broadening the sixth amendment sions might that constitutional claims be counsel, see, e.g., Mempa Rhay, v. right non-capital proceeding in a 254, 256-58, unmeritorious 134-37, 128, S.Ct. if a sentence of death was could be tenable (right ap- to counsel 19 L.Ed.2d 336 Indeed, even “every stage proceed- of a criminal involved.30 before plies to Godbold, stage proceeding, stating reasonably and Judge critical of the criminal that a 29. attorney anticipated competent primary could not elicit focus of the interview application sixth amend- of the fifth and precisely from the defendant how he committed context, in the Estelle v. Smith factual ments implies robbery and armed of the victim. the murder attorney would have had that such an application difficulty anticipating even more argue rights that the af- 30. I do not mean to principles in the factual context those apply only in Estelle v. Smith when firmed presented See ante at 853 n. 10. I in this case. punishment. capital defendant faces The Estelle disagree. applicability of the Estelle v. solely its decision on the v. Smith Court rested probation principles officer’s inter- Smith to a (as applied and sixth amendments to the fifth obvious than is view of the defendant is more amendment), through states the fourteenth psychia- applicability principles to a of those (as eighth applied through on the amendment probation tric interview of the defendant. The amendment). the fourteenth Estelle police- acting case as would a officer this during questioned man. He the defendant petition, filed his first habeas V. recognized explicitly that a ma- had In his second federal acknowledged jority of its members presented, Moore also the first time special capital sentencing concerns court, a claim that the admission agreed that “death is a different kind of presentence into evidence of the report vio- punishment any other which lated his sixth Gardner v. imposed country.” in this confront Florida, 1197, and cross-examine the witnesses whose (1977) (plurality). report statements Spe- memorialized. Gardner, Second, opinion the Court’s cifically, alleged opportunity that an year decided well over a before Moore first cross-examine, confront and those witnesses relief, sought any eliminated doubt “could have corrected the misimpressions rights ap- that a defendant’s constitutional financial, about his military and marital sentencing stage ply to the as well as to circumstances, clarified the circumstances case. See id. guilt stage capital of a crime, presented the truth about (sentencing process at 1204-05 prior juvenile record.” majority stage” satisfy a “critical “must today holds that Moore’s failure to raise requirements the Due Process this claim in his earlier was ex- Gardner, Clause”).31 Miranda With cused because rights confrontation were decisions, intervening and the Court’s explicitly extended to capital-sentencing lawyer in easily could have discerned proceedings until the constitutional infirmities court’s decision in Moore now v. Wainwright, 685 F.2d 1227 raises.32 Smith, 1878; U.S. at 101 S.Ct. at Battie earlier to raise his claim. The fact of the mat Estelle, (5th Cir.1981). ter, however, 655 F.2d 700 n. 17 brought that before Moore My merely discussion in text is meant to first federal habeas on November point recognizing out that an 1978, litigants already had raised similar claims regarding capital sentencing that the law was in Estelle, in other criminal cases. See Smith v. flux, might especially likely have been to foresee F.Supp. (N.D.Tex.1977) (district explicit application the safeguards of certain constitutional upon decision in case which Moore rests his stage of a bifurcated nearly year claim decided one before Moore capital proceeding. petition), aff’d, filed his federal habeas 602 F.2d (5th Cir.1979), aff’d, Judge attempts distinguish Godbold Gard- (1981); State, Livingston importance by noting plurali- ner's that it was a 542 S.W.2d (Tex.Crim.App.1976) 661-62 First, ty opinion. justices agreed five that the (addressing testimony by contention that defendant in Gardner was entitled to constitu- psychiatrists appointed penalty stage capi protections, tional other' than those derived trial, defendant, tal based on interview with amendment, eighth from the the sentenc- Constitution), violated federal Second, ing phase of his trial. the entire thrust (1977); exception of the "new law” to the abuse of the State, Armstrong (Tex. v. 502 S.W.2d 734-35 writ is to excuse claims based doctrine on "un- (same). Crim.App.1973) Although the Texas law, anticipated” changes in the not to allow a rejected decisions had the claim the petitioner ignore to sit back and his nascent Supreme upheld Smith, Court later in Estelle v. majority Supreme claims until a of the Court this result does not excuse Moore’s failure to Thus, announces a favorable decision. raise a similar claim in his first federal habeas justices explicitly number of who ascribed to previous rulings Given that state court portion of relevant Gardner to this case is contrary to a defendant's federal claim do not significance. "novelty" argument, of no For the object timely his excuse failure to his point given explicitly Court that the had proceedings, Isaac, Engle state court see 1558, 1573, v. 456 lawyers powerful a tool to build constitutional 107, 130, U.S. arguments relating sentencing. for actions to (1982), surely rulings 783 such cannot excuse a petitioner’s failure to raise those text, claims in a by 32. As I demonstrated in the a 1978 Thus, rulings' forum. the state court lawyer reasonable had the tools from which he significant cited above are not for their hold could construct the v. claim that Estelle Smith ings, they but because evince other Moore now seeks to petition. defendants’ assert in his successive recognition prior to v. Estelle Even if the in Estelle v. Smith—that the — of certain use very person actually sentencing state’s Smith was the to evidence in liti- claim, gate susceptible type his defendant was Moore would still to a constitutional argue "novelty" challenge. unable to to excuse his failure

873 counsel, (11th Cir.1982), right to modified, 706 F.2d 311 like the is a fundamental (11th Cir.), requirement 104 for a fair trial and for ensur (1983). Because I process S.Ct. due of law. Chambers v. Mis Smith, Proffitt, 284, 294-95, like sissippi, Estelle believe S.Ct. rule, 1038, 1045, (1973); Pointer, not articulate a new constitutional did judg court’s 1068; I the district would affirm 380 U.S. at 85 S.Ct. at In re in Moore’s omission of this claim Oliver, ment that U.S. not excusable. earlier was (1948).

his 92 L.Ed. 682 submitted to Proffitt, In the defendant in Proffitt, As this court noted 685 F.2d prior to psychiatrists two examination (citations omitted), right to sentencing. psychiatrists of the One only applies to cross-examination “critical to attend the defend- subsequently unable stages During of the trial.” the 1960s and sentencing hearing before the trial ant’s 1970s, phases extent which various concerning defend- judge, and views process, including in the criminal sentenc- were competence and mental state ant’s ing hearings, stages” constituted “critical report. The solely in a written submitted purposes for of the sixth amendment was receive, requested, did not defendant but See, question. e.g., an unsettled United psychi- to cross-examine the opportunity Fatico, (2d States v. 713-14 report. concerning Proffitt, atrist Cir.1978); Taparauskas, Argument An 1250-51 & n. 36a. F.2d at Sentencing: Bringing Confrontation Process, Sentencing into the rights court noted that the Offender Proffitt (1977); Cohen, 8 Cumb.L.Rev. 426-40 amendment, including by the sixth secured Probation, Sentencing, and the Rehabili- right to cross-examine adverse witness- Mempa v. tative Ideal: The View es, apply only stages “critical Rhay, 47 Tex.L.Rev. 1-6 (citations omitted). Ac- trial.” Id. at 1252 knowledging protections Although the law this field was apply amendment do not with full sixth disarray, state of the clear trend was to sentencing proceedings, the force in all expanding panoply the full of sixth ward cross- applicability court noted that the rights, including confronta amendment rights capital-sentencing examination Turner, See, rights. e.g., Clements specifically hearings “has not been ad- (D.Utah 1973); F.Supp. Tapa Supreme Court and is an dressed rauskas, (discuss supra, p. at 426-40 impression in issue of first this Circuit.” expanded right con ing trend toward at 1253. The court concluded that Prof- Id. frontation). example, Mempa For entitled, fitt was under the sixth amend- 254, 19 Rhay, 389 U.S. ment, psychiatrist at to cross-examine the re sentencing hearing. Id. at right cognized the sixth amendment probation revo counsel in a long presaged by line noting hearing, as follows: cation extending protec cases sixth contexts, no occasion in variety as well as There was Gideon tions [v. safeguards addressing special Wainwright, cases (1963),] to enumerate the constitutionally capital cases. mandated proceeding stages a criminal Court held that the various required, at which counsel was but sixth amendment secures the [sev- clearly Supreme eral Court stand adverse witnesses cross-examine cases] proposition appointment of for the that proceedings. Douglas criminal v. Ala 418, 1074, indigent required at bama, 415, counsel for an 380 U.S. 1076, (1965); every stage proceeding of a criminal 934 Pointer v. 1065, 400, 403, rights of a criminal Texas, 85 where substantial 380 U.S. S.Ct. 1068, High particular, be affected. accused 13 L.Ed.2d 923 Burke, 736, recognized v. 334 U.S. 68 repeatedly has [Townsend 1252, witnesses, (1948),] illus- S.Ct. 92 L.Ed. 1690 right to cross-examine adverse 874 trates sentencing 125, the critical nature of in App. 480, (1974) 528 P.2d 483-84 might a criminal case and well be (same), con- denied, review 85 Wash.2d 1002 support holding sidered to itself a (1975); Cohen, Probation, Sentencing, right applies to counsel at sentenc- and the Ideal: The Rehabilitative View ing. Many lower courts concluded Mempa Rhay, 1, v. 47 Tex.L.Rev. right the Sixth Amendment to coun- (1968)(viewing 1-16 Mempa Rhay v. as the sel extends sentencing in federal precursor expanded pro constitutional cases. sentencing stage tections at the of criminal 134, Mempa, 389 U.S. at 88 S.Ct. 256-57 trials); Taparauskas, Argument An (citations omitted). and footnotes In Mor at Sentencing: Bringing Confrontation Brewer, rissey 471, 480, v. Process, into Sentencing Offender 2593, 2600, 484 the Su 403, (1977)(contend Cumb.L.Rev. 426-38 preme parole Court noted that revocation— ing Court decisions of the sentencing part unlike of a crimi —“is 1960s and 1970s foreshadowed the exten prosecution nal panoply and the full thus sion of rights confrontation to sentencing); rights due a proceed defendant such a Turner, see also Clements v. 364 F.Supp. apply parole does not revocations.” (D.Utah 1973) (“On the heels of Nonetheless, the Court held pro that due [Mempa Rhay,] held that appoint which requires parolees cess pro these ed counsel required in deferred sentenc ceedings receive array procedural ing situations, has expansion come an protections, including right “the to con beyond to counsel even the broad front and cross-examine adverse witnesses placed limits upon it in that case and an (unless hearing officer specifically expanded application of procedural good finds cause allowing for not confron safeguards notice, hearing, confronta tation).” 2604; Id. at 92 S.Ct. at see tion and cross-examination the context of Gagnon Scarpelli, post-conviction proceedings.”); State v. Or 1756, 1759-60, (1973) tez, 60 Haw. 588 P.2d (applying Morrissey probation revoca (noting that defendant had made no re proceedings). tion quest for and confrontation cross-examina By themselves, probably these cases proceeding); ABA Stan foreshadowed our holding court’s in Prof- Relating dards to the Administration of provided and a reasonable basis for the

fitt Justice, Criminal Sentencing Alternatives confrontation clause claim Moore seeks to Procedures (Comp.1974) (dis Indeed, at this time. type cussing right to confrontation at sentenc recognized claim many commenta ing), cited in Taparauskas, supra p. tors and attorneys well before Moore filed at 439-40.33 his first if cases, Even these See, lower late 1978. commen- e.g., United States v. taries, arguments Fischer, counsel, along (2d Cir.1967) with the (rejecting petitioner’s Court’s decisions confrontation clause Mempa, involving Morrissey, Gagnon, claim non-capital sentencing were hear ing, but sufficient acknowledging provide that “there themselves to any is a certain persuasiveness amount of reasonable with the tools to fash- argument”), claim, ion a two additional factors Proffitt (1968); compel People that a conclusion Proffitt Perry, 36 N.Y.2d was available in N.E.2d As I 1978. noted in dis- (1975) cussing 365 N.Y.S.2d 520-21 claim, Estelle v. Smith see (noting rejecting supra IV.B., defendants’ confron Part Moore’s habeas attorney challenge tation clause involving non-capi should also have prompted been to raise a sentencing); Short, tal State v. Wash. claim because Moore was con- My supra apply comments in my opinion. note equal force to the portion discussion in this given oppor- requires defendants be an that and because crime capital of a victed rebut, explain, deny informa- down Gardner tunity to handed Court 1197, 51 presentence reports, Florida, 430 U.S. 97 S.Ct. contained in tion year one Gardner, than more 430 U.S. at S.Ct. at petition brought habeas his challenge capital- to Moore confrontation clause before a court. in federal sentencing proceedings should have been competent attor- any reasonably to obvious capital nature of special light of the In Process in Sentenc- Note, ney.34 See Due attorney would reasonable a punishment, (discussing ing, supra, at 1291 confronta- a confronta- likely press to more have been rights that cross-examination tion and regard capital argument with clause capital-sentenc- in Gardner non-capital may mandate regard to than with sentencing Thus, respectfully dis- I supra ing proceedings). Part IV.B. Given sentencing. See sentencing that capital majority’s holding of a from the consequences sent readily ar- have could is novel. Moore claim proceeding, Moore’s right to cross- must have gued he might testimony whose witness examine a VI. the death he receives whether determine Moreover, imprisonment. or life penalty regard to separately I Finally, write through its this claim invited Gardner petitioner’s claim analysis of majority’s decision reading of the Florida, careful 430 U.S. based Gardner on 241, 69 York, v. New Williams (1977). .51 L.Ed.2d Williams 93 L.Ed. 1337 judge sentencing that his claim is Moore’s con- require not process does due held that on part death based imposed the protec- cross-examination and frontation and his report presentence at sentencing proceedings, during tions “any meaningful op- did not have counsel this made on objection was no least when supple- review, correct or portunity background information ground and eighth four- ment,” in violation of dis- report was presentence defendant’s majority As the amendments. teenth during proceed- defendant closed notes, obviously based claim Gardner, at Id.; see also ing. because Gard- legal development, any new Sig- (plurality). 355-56, S.Ct. at 1203-04 his Moore filed ner was decided before noted that constitu- nificantly, Gardner fact, In federal habeas first capital sen- applicable to protections tional in his state first presented this Moore recognized in evolving, fact tencing were 1978), state (in and the Gardner, at 356- See Williams. merits, find- on the rejected the claim Williams, (quoting received counsel had trial Moore’s also 1083); see 247-48, U.S. at report prior presentence copy of Application Note, v. Florida: Gardner hearing. his Procedures, Sentencing Due Process brought his first Moore When (1977)(hereinafter 1281, 1283 63 Va.L.Rev. petition, on November Sentencing). Due Process Note, This claim. include Gardner did not dis- proceeded to Gardner then deliberate, to have been appears omission unique recognizing the nature cuss cases the claim oversight, because and not post- and the capital punishment, history portion procedural noted in Mempa including Williams —that cases— repre- because to sen- process protections due extended Bonner, C. attorney, James by the sented this discussion light of tencing. collateral Jr., his state prosecuted who had process Gardner, and its holding that due Surely could Moore’s counsel VI. Moreover, Part Moore’s counsel infra step and contended gone one further attacks first federal collateral state and rights violated were sixth presented a Gardner Gardner aware of opportunity to given an court, he was claiming because that Moore claim to the whose witnesses cross-examine deny confront opportunity or rebut given an was not report. were included report statements presentence contained. material attack. Moore did not seek to add his trial counsel], the Court ruled adversely Gardner claim to his until October petitioner. No new evidence has 1, 1980, when newly his appointed substi suggested been which would cast doubt tute sought counsel leave to his amend on this determination. petition. The court district denied Moore’s Id. (citation omitted). Although the district motion for leave to amend his court did not couch finding this anas alter- the Gardner claim, add citing his delay in native basis rejecting Moore’s Gardner bringing the court, claim to federal his claim, it clearly viewed that claim having as claim, explicit reference to the proce in the fully been correctly litigated in the portion dural original petition (which Moreover, state court. it noted that Moore indicated that fully he was aware of it admittedly produce could no evidence to when he petition), filed that and his contin any cast on doubt the disposi- court’s representation uous by counsel during his tion.35 state and federal collateral attacks. Blake circumstances, these I believe we v. Zant, 513 F.Supp. (S.D.Ga.1981). should view the district court’s denial of ground upon Another which the district Moore’s motion to amend his peti- habeas court relied denying Moore’s motion tion to add his Gardner claim as disposi- a amend was that his Gardner tion on the merits. Accordingly, we can meritless: treat his attempt to raise this claim anew explicit made [CJounsel reference to the as a petition. successive Because Moore presentencing report issue original presented has no why reason he is entitled thus demonstrating be- relitigate Gardner claim, the claim yond doubt that matter had been should be denied as pursuant successive rejected considered him and as a basis 9(b) Rule of the Rules Governing Section for relief before this Court. Counsel’s Cases, see U.S.C. (1982).36 § decision cannot be seen as unfounded. question

This was considered length Alternatively, I believe we can affirm the by the state habeas tribunal. Testimony dismissal of Moore’s Gardner claim on the was received ground trial [Moore’s that it is conclusively counsel] without mer and an affidavit was introduced it. from the As Court noted in Sand officer who prepared report. Upon ers States, United examining this evidence and the trial (ci transcript, appears which to show omitted), tations the abuse of the writ rules report was turned over to “are operative [Moore’s. not in cases where the sec- appeal, panel On of this court expressed affirmed tices the view colorable claim district court’s denial of Moore’s motion to of factual innocence is not essential to establish amend, concluding that the district did justice" that the "ends of warrant reconsidera- its Balkcom, abuse discretion. Moore v. petitioner's tion of a previously decided claim. rehearing), Cir.1983) (on 1526-27 at-, Id. (Brennan, J., 106 S.Ct. at 2634-35 rt. joined Marshall, J., ce dissenting); at-, id. (1984). panel did dis (Stevens, J., 106 S.Ct. at 2639 dissenting). The cuss the district court’s treatment of the merits remaining justices, two Justices Blackmun and of Moore’s Gardner claim. White, concurred in the Court’s alternative hold- at-, ing, id. 106 S.Ct. at (rejecting 2628-31 36. The recently Court has petitioner's had occa- merits), successive claim on the sion to examine and refine gov- expressed standards no view on the need for a colorable erning successive federal peti- claim of factual in a innocence successive habe- tions, i.e., petitions presenting Thus, petition. claims that have open Kuhlmann leaves already litigated been proceed- proper governing standard petitions. successive ing. Wilson, case, Kuhlmann v. In this we need not decide whether a S.Ct. mann, In Kuhl- colorable claim of factual innocence is an essen- four-justice plurality of the prerequisite Court con- tial to a successive habeas justice” cluded that the "ends of mandate con- Regardless of whether showing is neces- petitions sideration of successive only sary, when the Moore’s successive Gardner claim should petitioner "supplements his entertained, constitutional claim not any because he does not showing a colorable factual legal innocence." new developments facts or warranting at-, Id. 106 S.Ct. at jus- 2627. Three other relitigation of the claim. shown, “public policy there must be some end application or successive ond litigation appears files, and that when one application, the basis case, heard, present fully court to is alone, conclusively to be of the case records against and the contested issue is decided applica- In such a case the merit. without him, may litigation not later renew the hearing.” without tion should be denied court.”); Minneapolis in another FTC v. herein, I would described For the reasons Co., Honeywell Regulator court’s dismissal the district affirm (1952)(holding S.Ct. 97 L.Ed. 245 claim. petitioner’s Gardner finality jurisdictional principles of create filing untimely petition). to of certiorari bar VII. special why finality There are reasons is a sum, respectfully I dissent from In proper goal justice. in criminal disposition of analysis and majority’s point, process, if At some the criminal it and Moore’s Estelle v. Smith all, is to function at must turn its atten- view, my these claims are not claims. ought properly a man from whether law,” excusing his failure to on “new based he is to be incarcerated how be present them in his law, If treated once convicted. criminal court acted well within petition; the district otherwise, having or is worth and enforc- concluding lawful discretion its ing, provide it must at some time a defin- prosecuting diligence in lack of questions litigants answer to the itive I of the writ. claims constituted an abuse provides or else it never an an- disposition from the court’s Surely unpleasant also dissent at all. it is an swer claim, strip for the reasons a man of his freedom Moore’s Gardner task Finally, fully subject I concur in him to institutional restraints. herein. expressed doing, But this does not mean that in so disposition of Moore’s re- majority’s always halting or we should be tentative. maining claims. one, defendants, criminal No society DISSENTING, judicial system, not as a whole is HILL, Judge, Circuit by judgment providing a man benefited EDMONDSON, Circuit FAY and which tentatively go jail today, but shall Judges, join: day every tomorrow and thereafter is right point of view discov “When subject shall continued incarceration ered, is more than half problem litigation already on issues re- to fresh R.R., Georgia 87 Ga. Ellison v. solved.” solved. (1891) (Bleck 691, 706-7, 13 S.E. States, 401 U.S. Mackey v. United Justice). ley, Chief 1160, 1178-79, 690-91, right point of view of the issues J., (1971) (Harlan, concurring). petitions for successive this case is this: supported pro litigation, even a In civil genuine and neces- create wrongfully deprives judgment test that the de- the institutional sary tension between or other freedom of action property one of judgment on the one sirability finality judgment if has usually disregarded is other, and, society’s abhor- on the hand impor finality. Finality is that reached punishment confinement or other rence of Ass’n, Traveling Men’s tant. Baldwin innocent. is known to be of one who 517, 517, dispute. repre- contrived It This is not a (1931) (in litigation court L.Ed. 1244 civil difficulty society’s sents inevitable policy dictates that there be “Public noted: divergent inter- but valid accommodation of litigation; those who have an end ests. by the issue shall be bound contested an contest, that matters once justice, finality result of the In the administration settled as considered forever reasonably promptly important. tried shall be achieved v. Commis parties.”); Bennett See, Woodruff, 327 U.S. between Heiser v. e.g., Cir.1940) sioner, 113 F.2d 90 L.Ed. 970 go does not (“[T]he judicata of res rule judicata serves sound (recognizing that res brought relied on was a prisoners, whether the judgment claim- whether wrong finality It rests on the However, decision. innocence or not. the estab- lishment judgments finality in the interest of the end these cases carries the risk that one litigation requires demonstrably that the who is fact or inno- may yet cent only be incarcerated adjudicated adjudicated.”). issue remain because procedure there is no obtaining a re- country, acknowledge In this we that our Therefore, lease order. whatever they must be fallible because institutions history have been the post-conviction workings are the of fallible humans litigation court, in state or federal a U.S. divinely appointed. not monarchs While judge hear, district accept, authorized to wrong some risk of the result must be and consider a successive and even abusive justice, taken in the administration of we petition for the corpus writ of habeas imprisonment punish- recoil from the or prisoner justice” should the “ends of ment of one whose innocence can be dem- require it. onstrated. my view, In meaning of the 1966 right point Given view—that this amendment must be discovered here tension corpus litiga- must exist habeas problem reference being addressed. tion—we see that it has been the task of If the courts conclude that a determination Congress to relieve the tension to the ex- of the existence jus- vel non of “ends of proper. my Congress tent view the has depend tice” will upon whether or not the provisions done that in its dealing for our petitioner claims and prove offers to corpus petitions. with successive habeas innocence, goal then the of finality will 2244(a), (b) (1982). 28 U.S.C. § have been achieved as far reasonably First, these enactments do disturb possible. The innocent will “safety have a authority judicial of the branch to hear finality; valve” from the guilty will have decide, petition on first federal reached the end litigation. corpus, claims of constitutional er- In the context of death proceedings. ror the state court Unless corpus litigation, may guilty one be of mur- provision limited some other prece- yet der and subject penal- to the death dent, Powell, see Stone v. Thus, ty. when I advocate that a district (1976), relief judge ought to be able to petition hear a granted from state custody where brought by claiming innocence, one I would grievous there has been denial of constitu- interpret “innocence,” where the pen- death rights tional whether or petitioner not the alty is being involved as any innocent of asserts innocence. I take no issue statutory aggravating circumstance essen- that; compelled by it is eligibility Su- tial to for the controlling penalty. death preme precedent. in this case makes no innocence; claim of subject long ago

What is to our today resolution promptly confessed to accompanied murder availability petitions. successive by statutory aggravating Legislative circumstances. history makes it clear that in above, For the reasons therefore, stated 1966, congressional amendment to section and for the reasons so much better articu- greater degree achieve “a parts II lated and III opinion judgments finality corpus pro- in habeas Justice Powell in Wilson, Kuhlmann v. ceedings” “pro- and to add to section 2244 436, _, 2622- qualified application visions for a I would affirm judicata.” doctrine of res S.Rep. No. judgment district court’s dismissing the Cong., 89th 2d reprinted Sess. Cong. 1966 U.S.Code & Admin.News For these reasons I respectfully DIS- SENT. Congress successfully accommodated gave

these tensions. It the courts authori-

ty petition to refuse to hear after

after for the writ of habeas

Case Details

Case Name: William Neal Moore v. Ralph Kemp

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 27, 1987

Citation: 824 F.2d 847

Docket Number: 84-8423

Court Abbreviation: 11th Cir.