William Neal Moore v. Walter Zant

122, 129, 100 S.Ct. Gаgne, MOORE, (1980); Po Chicano Neal William Stover, Petitioner-Appellant, Ass’n v.

lice Officers Cir.1980). (10th remaining arguments for re- Defendants’ ZANT, Respondent-Appellee. Walter versing two orders for the district court’s No. 84-8423. and costs are also without attorneys’ fees Appeals, United States Court of tell, Some, as we can were merit. so far Eleventh Circuit. urged post-order in their not defendants Sept. post-order In their re- requests to amend. orders, the defen-

quests to amend both 3, 1989. Rehearing Denied Nov. challenge the district court’s dants did not they suggest

computation, nor did being attorneys’ plaintiffs were awarded of the defendants fees to resist motions heard. yet have not which Finally, the fact that the defendants deni appeal the district court’s intended preclude not al the motion to vacate did awarding attorneys’ the district court from resisting fees for services rendered argument This is some motion to vacate. since we have this date af what mooted denying firmed the district court’s order The award defendants’ motion to vacate. attorneys’ fees in the instant case was premature. not sum, court did not abuse the district discretion, gave matter careful but its The district court did consideration. blanche, attorneys give plaintiffs’ carte suggested by counsel. The October as is $16,- plaintiffs’ request by 25 order reduced 844.66, reduced and the November order $59,431.27.3 plaintiffs’ request by Judgments and Orders affirmed. Carruthers, appeal, Cir.1989). 885 F.2d 1485 they Duran v. plaintiffs in this court ask 3. The should be attorneys' for services fees and costs This is a matter awarded rendered in appeal present resisting in this Court initially the district court. handled companion and in the of the defendants Boger, John Charles New York City, G. Jackson, Savannah, Terry Ga., Daniel J. Gi- velber, Boston, Mass., petitioner-appel- for lant. Gen., Boleyn, Atty.

Susan Asst. Atlan- Y. ta, Ga., respondent-appellee. RONEY, Judge, Before Chief TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON COX, Judges. and Circuit COX, Judge: Circuit originated This case court an as appeal from a federal district court’s dis missal of applica Moore’s second corpus tion for federal habeas relief as an meaning the writ within the 9(b) Rule Governing of the Rules 28 U.S.C. court, sitting banc, 2254 cases. This en § ultimately part reversed the district abuse, finding court’s and remanded the in part. Kemp, case Moore v. 824 F.2d 847 (11th Cir.1987). Subsequently, the State filed a for a writ of certiorari with Following argu Court. oral ment, opinion this court’s en banc was vacated and the case was remanded “for further consideration Lane, -, 1060, 489 U.S. 103 (1989).” Moore, L.Ed.2d 334 Zant v. 489 U.S. -, 1518, S.Ct. L.Ed.2d (1989). We affirm the district court’s deci sion.

I. History

A. Procedural Petitionеr, Moore, Neal mur- William Stapleton’s Fredger Stapleton in dered during home the course of an armed rob- 2,1974.1 indicted bery April on Moore was 13, 1974, grand jury in Jeffer- May Georgia, for the murder and County, son 4, 1974, Stapleton. robbery of On June (1984); 79 L.Ed.2d 773 been recounted 1. The facts of this case have See, Zant, State, e.g., F.Supp. Blake v. elsewhere. Ga. 213 S.E.2d Moore v. (S.D.Ga.1981), part denied, (1975), 803-04 cert. 428 U.S. 830-31 aff’d Balkcom, part sub Moore v. rev’d in nom. Cir.1983), denied, F.2d 1511 rt. ce appeal inclusion of a claim based arraigned Superior was the Moore was by jury upon alleged an violation of Gardner v. County, waived a trial Jefferson Florida, charges, pled respect to both neither Moore nor guilty charges. Because the State —that attorney adequate oppor- afforded sought penalty on the malice his death entitled, investiga- charge, tunity presentence murder Moore was under review law, sentencing proceed- Georgia report prior tion jury to have a determine ing. Following evidentiary hearing, the penalty, whether that sentence of life petition, including imprisonment, imposed. rejected should court his his claim, determination, jury waived his to a and the Court of Gardner instead, grant electing, Georgia refused to him a certificate to be sentenced probable appeal. cause court. 1978, Moore, July represented conducted a In November

On Bonner, Jr., penalty bench trial on the issue. After James C. filed first petition considering by corpus the evidence adduced the federal for a writ of habeas defense, prosecution including and the United States District Court for the presentence investigation Georgia, asserting report which had Southern District of prepared by probation presented court’s offi four of six claims he had by petition; cer and introduced into evidence his state habeas one of the claims prosecutor objection, without omitted was his Gardner claim. On March petition pending found that Moore had while the committed Sta- court, pleton during pro murder the course of an arm the district Moore filed a se robbery, aggravating petition ed an circumstance motion to amend his to add an subject that rendered Moore to the death ineffective assistance of trial counsel claim. penalty. Ann. Ga.Code Thereafter, Bonner, represented who had 27-2534.1(b)(2) (Harrison 1978) (current § during proceedings, Moore the state habeas 17-10-30(b)(1) versiоn at Ga.Code Ann. § requested and received leave to withdraw (1982)). Thereafter, the court sentenced counsel, appointed as district court Moore to death. H. Diana Hicks as substitute counsel. immediately

Moore’s conviction and sentence were af- Hicks moved for leave to Supreme Georgia petition firmed present Court of on amend Moore’s to his 861, State, 1981, appeal. April direct Moore In Ga. Gardner claim. the district (1975) curiam), (per pro 213 S.E.2d 829 and the court denied both the se and Hicks Supreme amend, subsequently Court denied motions for leave see Blake v. petition Zant, 772, (S.D.Ga. F.Supp. Moore’s for a writ of certiorari. 804-06 910, 1981), Georgia, granted Moore v. 428 U.S. 96 S.Ct. the writ as to Moore’s sen 3222, (1976). Following 49 L.Ed.2d 1218 penalty tence on the basis that “the certiorari, petitioned the denial of Moore death is cruel and unusual as Superior County Court of Jefferson for him in of the circumstances of the sentencing factors,” proceeding. a new The court crime and other relevant id. at motion, 803, Supreme denied his and the Court and denied relief on all of Moore’s State, Georgia remaining affirmed. See Moore v. claims. 67, (1977). peti- 239 Ga. A S.E.2d 519 appealed The State the district court’s tion for a writ of certiorari was denied judgment granting the writ as to Moore’s Georgia, Court Moore v. sentence; cross-appealed, challeng- Moore 54 L.Ed.2d 159 ing rulings the district court’s on the claims (1977). rejected that the district court had and the exhausting After him all avenues for direct court’s refusal to allow to amend his sentence, of his A petition. panel review conviction and of this court reversed the proceedings grant Moore initiated collateral for district court’s of relief and affirmed early petitioned rejection remaining relief. In Moore the court’s of his chal- Superior County, lenges guilty pleas of Tattnall to his and death sen- Court Geor- Balkcom, gia, corpus, presenting for a writ of habeas tence. Moore v. 1518-19, (11th Cir.1983) (on grounds

six for relief. Relevant to this rehear- then filed his second federal habe- concluded that Moore ing). panel The also petition, presenting the seven claims he not abuse its discretion as district court did his in his second state habeas refusing grant Moore leave amend had asserted Id. alleged subse- petition. claims petition. newly for a writ quently denied Moore’s based on either discovered were Balkcom, of certiorari. Moorе v. (the applica- racially discriminatory facts claim) penalty or novel tion the death (all claims) remaining legal principles to state court Moore thereafter returned “reasonably he were not available” when relief, corpus seeking a of habeas petition. his first federal filed habeas County, Superior from the Court of Butts Gardner claim, presented Moore also (1) following grounds: Georgia, on the attempted to raise in his first which he had Fifth, Sixth, and State violated Moore’s proceeding a motion for leave to federal rights when it Fourteenth amendment amend his and which he had failed right Moore of his to re failed to advise state to raise his second right silent of his to counsel main during presentence to or interview May the district court dismissed probation officer after was conducted petition and denied a certificate of sentencing (a claim conviction and before appeal. respect probable cause to With Smith, Estelle based except presented,3 one of the claims all (1981)); presenta- delayed court concluded that the denied Moore the to con the State Moore’s claims tion of constituted front and cross-examine witnesses whose 9(b) of the writ under Rule of the Rules testimony hearsay was contained Cases; Governing 28 U.S.C. 2254 the § (a presentence investigation report claim court found that the claims were based Wainwright, 685 F.2d v. based on Proffitt newly neither on discovered facts nor on (11th Cir.1982), modified, 1227 principles, newly established constitutional denied, cert. (11th Cir.), 311 no reason and that Moore offered lawful (1983)); (3) 104 why he should not have asserted them in of tri Moore received ineffective assistance petition. Adopting the district previous his sentencing phase at the of his al counsel full, opinion panel of a divided court’s case; (4) Georgia penalty and death the v. the this court affirmed decision. being racially in a dis was administered Zant, (11th Cir.1984) (per cu- 734 F.2d 585 superior criminatory manner.2 The riam). rejected of these without an each claims rehearing, petition for this On Moore’s hearing. evidentiary The court concluded banc, en court, sitting considered whether the ineffective assistance of counsel present in his first feder- Moore’s failure to litigated fully claim had been Moore’s claims petition five of al habeas proceeding first state and Moore habeas petition— second presented in the why had offered no reason it should be Estelle, Proffitt, claims, Gardner and his re relitigated, and Moore had waived ap- penalty the death the claim that failing them maining by claims to raise manner, discriminatory plied racially in a proceeding. initial during that state assistance of counsel and the ineffective 9-14-51 In March Ann. Ga.Code § jus- of the writ claim —constituted an abuse Georgia denied Supreme Court of majority A of summary dismissal.4 tifying application for a certificate of opinion that Moore did was of the appeal. the court probable cause claims, proceeding, the district court (cid:127)federal habeas 2. Moore raised three additional none meritless and that the appeal. held that the claim was is relevant on this which relitigation. justice require not its ends of did peti- In his second state and federal habeas argument tions, during oral en banc brief sentenced to 4.In Moore asserted that he was court, only Florida, five of this Moore addressed v. before death in violation Enmund (1982), presented in his second claims that were not deem those claims specific federal We intent to kill his because he lacked E.g., appeal Roberts Observing rejected on abandoned. the En- advanced victim. that it had Cir.1982). Wainwright, F.2d previous claim on the merits in Moore’s mund -, 103 L.Ed.2d failing to assert his abuse the writ not Moore, U.S. -, Zant v. (1989).” Estelle and Proffitt claims in his first fed- (1989).6 not inten- petition since he did eral habeas claims, those and neither tionally withhold Scope Review on Remand B. reasonably could have he nor his counsel on those anticipated the decisions which is, inter on this remand Contested Kemp, Moore v. claims were based. alia, Supreme extent to which the (7-5 (11th Cir.1987) deci- F.2d 850-54 order limits the issues remand Court’s sion). majority also concluded that and resolve. may this court consider remand, court, “give should district strenuously argument, Moore as At oral the ends of fresh consideration to whether vacating court’s earlier serted the merits of justice require it to consider remanding this case en banc opinion and Id. at 857. Fi- Moore’s Gardner claim.” “for further consideration expressly unanimously affirmed the nally, the court Lane,” Teague light court’s dismissal of the two remain- district permit reconsideration of Court did not Id. of the writ. ing claims as abuse Instead, he of the writ issues. sub 857, 858, 877. mits, purpose the evident of the remand to consider order is to direct this court subsequently sought Supreme The State general prohibiting the whеther rule of this court’s en banc deci- Court review application of “new” constitu retroactive granted to consider sion. Certiorari was principles pending to cases on collat tional State, presented each questions two those constitutional eral review at the time the writ of which relates to the abuse of principles are announced should be addressing ques- doctrine.5 Instead of of those State, to bar consideration of the merits presented by tions court, in its earlier en which this judgment claims vacated this court’s decision, banc to be abus determined remanded the case “for further considera- Lane, Although authority in ive.7 he cites no tion venire, type jury petition- questions presented well and held that 5. The were: what as exception prima proof er had made out a facie case of discrimi- establishes a “new law” banc, reject- rehearing On en the court nation. the abuse of the writ doctrine sufficient to ex- claim, holding petitioner’s fair ed cross section petitioner’s cuse a habeas abusive conduct in protection limited that the fair cross section was failing prior to assert the claim in a federal jury venire. to the (2) corpus petition; type what of and Court, Supreme petitioner to On certiorari the proof justice" that "ends of would be establishes urged adoption of a new rule which would by relitigating penalty sentencing served death protection fair cross section to the extend the adjudicated adversely phase previously claims petit jury. The Court declined to address the petitioner? to a habeas contention, holding, petitioner’s of in- merits stead, adopt that if the Court were to a new -, Lane, Teague 6. law, principle of constitutional could (1989), petitioner, a black that rule because the rule not benefit from man, jury by was convicted an all-white Illinois petitioners to whose would not be available murder, robbery, ag- attempted of armed and pending collateral review at the time cases were gravated battery. During jury peti- selection clarify to the rule was announced. In an effort trial, per- prosecutor tioner’s used all of his relating retroactivity, existing law to the rules emptory challenges to exclude blacks. Petition- general prohibiting the Court announced a rule mistrial, arguing counsel moved for a that er’s application of “new laws” to the retroactive peremptory challenges prosecutor’s use of at the time those laws are cases that are "final” announced, to be tried strike blacks denied him the exceptions to and enumerated two representative jury of the communi- general rule. Supreme Appellate ty. Courts The Illinois relief, Supreme and the Court denied denied Supreme Specifically, that the Moore contends certiorari. presents this court with Court’s remand order pro- issues, following then initiated federal habeas Petitioner of which relates five each State, ceedings pursuant repeating (1) Teague U.S.C. § to 28 has the who decision: retroactivity any claim. The district court defense at his fair cross section has not asserted a stage appeal, panel proceed- of the Seventh federal habeas denied relief. On of these second agreed petitioner’s opportunity Appeals ings, to assert the nonre- Circuit Court of waived its stage troactivity argument cross of Moore’s claims at that the Sixth Amendment's fair (2) Teague retroactivity applied petit jury, proceedings; guarantee as should section issues, support of the notion that the remand or- tion of the abuse of the writ offered limiting, emphasizes was thus Moore der no comment on the correctness of that ear- explicitly that the Court did not solicit fur- decision, lier and remanded the case to this specific issues ther consideration general court with the instruction that we presented before the en banc court. further light consider the case in Teag- State, contrast, maintains that the ue. We conclude that a reconsideration Court, issuing Supreme the remand or- the abuse permitted by of the writ issues is der, preclude did not intend to this court Supreme Court’s remand order. considering from of the issues in the all case, including retroactivity, appropriate, if II. By directing and abuse of writ.8 “further Initially, we should decide whether Teague,” consideration the State by raising abused the writ in his asserts, Supreme providing Court was second federal habeas certain guidance this court with as to what consti- claims present which he failed to in his first law,” guidance having tutes such “new noted, federal As supra note been available at the time of this court’s presents remand Moore five additional earlier en banc decision. consideration, issues for our each of which elementary For reasons more and com- relates to the Teague decision. Because of pelling parties, than those offered disposition our of the abuse of the writ Supreme we conclude that the Court’s re- issues, we find it unnecessary to address preclude mand order does not our revisita- those additional issues.9 tion of the abuse of the writ issues. Inher- argument against ent in Moore’s reconsid- A. Claims Presented assumption eration of those is issues Moore contends that the district court Court’s remand order its dismissing, abused discretion in as an implicit approval constitutes an of this writ, Estelle, abuse of the Proffitt, disposition court’s earlier en banc of those argues, Gardner claims. The State as it reject premise issues. We the basic court, did before the district argument. Although that Moore’s granted case, failure to certiorari in this assert his first federal it decision, vacated our earlier those claims en banc leav- which are now before us was ing in appellate disposi- and, therefore, existence no level inexcusable constituted an context; applied capital sentencing essentially procedural analysis, rule be involves (3) assuming generally prerequisite any that the dispo- rule conduct of which is a cases, applicable capital Further, should it be sition of claims on their merits. retroactively capital retroactivity inmates whose cases State maintains that the issue pending Teag- were presented collateral review at the time one addressed to the merits of claims announced; and, hence, ue was do some of Moore’s cannot be resolved until the abuse Teague claims fall outside the reach of the rule of the writ issue has been determined. The {i.e., any parties’ conception interrelationship do of the claims involve issues which be- purposes present do not constitute "new law” for of a tween the two issues is irrelevant to the discussion; (5) retroactivity analysis); assuming urges that all Moore this court to adhere to prior finding or some of Moore’s claims fall within the reach no of the writ its of abuse as to the {i.e., Estelle, Teague principles Proffitt, of are based on which and Gardner claims—to declare purposes having successfully proce- constitute "new law” for of a retroac- Moore as cleared that tivity analysis), any proceed immediately do of those "new law” dural hurdle —and to exceptions judging attempt claims fall within either his to clear the second hurdle— State, Teague retroactivity rule? his course to relief. The —on contrast, asserts that both "hurdles” remain path. in Moore’s parties they 8. Both concede that conceive of the retroactivity abuse writ and issues as being separate analyses two which must be con- 9. Because we that Moore abused the conclude pursuant filing petitioner's by failing ducted to a of a to include in his initial federal petition. petition presents successive federal habeas Moore char- habeas the issues which he procedural peti- acterizes the issues as two hurdles time in his second habeas first federal tion, which must be cleared before a court will ad- need not address we whether presented. preclude dress the merits of the claims rule should be an evaluation State asserts that the writ issue of the merits of Moore’s claims. in his earlier include this claim notes that failure to writ. The State abuse of the justice” require an petition, counsel the “ends of represented Moore has been pro- merits. throughout stages of his collateral of the claim on the all evaluation newly no discover- ceedings, that there are presented claims to each of the As in Moore’s case—the facts now ed facts Moore, court’s we must review the district “new” being support of his offered for an abuse of discretion. Sand decision time having been well known at the claims States, 373 U.S. ers v. United that he filed his first federal —and (1963); 1068, 1079, 10 L.Ed.2d 148 implications of the federal constitutional Dugger, 825 F.2d Darden v. Moore, facts, being now asserted those Cir.1987). princi outlining the basic After case plainly discernable from relevant were analy ples governing the abuse of the writ in existence at that time. law that was sis, address each of Moore’s we shall respect With to the Estelle and Proffitt claims turn. Moore, claims, the State contends that who represented by counsel at all times B. Abuse Doctrine Writ appeal, chargeable relevant to 9(b) According to Rule of the Rules Gov knowledge and constructive— —actual Cases, court erning Section 2254 a federal possessed counsel at the time Moore subsequent peti may dismiss a second or petition, filed his first and that habeas corpus relief if it tion for federal habeas counsel, time, reasonably at that should allege “fails new finds that the anticipated those сlaims. Moore nei- grounds for relief and the or different disputes represented he has ther or, if new determination was on the merits stages during by counsel at all his direct grounds alleged, finds and different are [it] proceedings, nor asserts that and collateral to assert that the failure newly attempting rely he is on discover- grounds prior petition in a constitut those disagreement ed facts. His with the State ed an abuse of the writ.” 28 U.S.C. foll. court, respect and the district at least with 9(b) (1982). 2254 Rule This rule is stated § claims, to his Estelle and concerns Proffitt slightly different terms in section legal significance Specifi- facts. (1982), provides 28 U.S.C. cally, claims are Moore contends that his may petition summarily dismiss principles based on new of constitutional petition “alleges predicat and is unless the recognized not until law which were after ground adjudi ed on or other a factual peti- Moore filed first federal habeas hearing applica on the earlier cated tion; principles because those were estab- writ, court, tion for the and unless petition, lished Moore filed his first after appli justice, judge is satisfied that the intentionally he cannot be said to have application abandoned, withheld, cant has not on the earlier delib intentionally or inex- newly ground neglected erately withheld the asserted cusably to have asserted those Instead, principal A claims in his or otherwise abused the writ.” sub- mits, change promote is to underlying law constitutes reason these rules legal justifying delayed asser- finality proceedings by excuse re of criminal tion of his claims. quiring petitioners to include all of their single petition in the claims in a respect to his With third claim—that court. federal district See Kuhlmann which is based on Gardner v. Flor- 436, 451-52, Wilson, acknowledges that the claim is ida—Moore 2624-26, (plu newly facts not based discovered or new opin rality opinion). purposes For of this principles of federal constitutional law. He ion, distinguish must between the two we maintain, however, does that he did not of claims those rules describe: the classes deliberately withhold this claim from his of “successive” claims—those first consists (as petition by his first federal evidenced considered on their which were raised and petition attempt amend that include peti habeas therefore, merits an earlier federal claim), did not abuse the this of “new” the second consists Alterna- tion—and respect to this claim. writ with being notwithstanding, which are raised for that his claims—those tively, he asserts

1505 one) Sanders v. petition.10 hearings (citing subsequent instead first time in the States, only 1, 18, United Presently, are concerned we 373 U.S. 83 S.Ct. latter 1068, 1078, 10 (1963); are included cate- Jones v. claims that L.Ed.2d 148 Estelle, gory. 159, (5th Cir.1983) 722 F.2d 163-64 (en banc) (citing Wong Doo v. United evaluating “new” claims to deter States, 239, 524, 265 U.S. 44 68 S.Ct. L.Ed. they should be entertained mine whether (1924)), changed 999 or that the law has merits, may a district court on their con Sanders, petition, since the earlier 373 U.S. delayed presentation clude that 17, 1078; Kemp, Tucker v. 83 at S.Ct. of the those claims constitutes abuse 749, (11th Cir.1987); see 818 F.2d 752 by finding petitioner or his that either Demps, 874 F.2d at 1392. In some instanc intentionally or intention counsel withheld es, however, might an abuse be found even ally abandoned the claims on earlier changed if the law has since the earlier neglected to in petition, inexcusably See, e.g., McCorquodale v. petition. clude those claims in the earlier Kemp, 543, (11th Cir.1987); 832 F.2d 544 Hutchins, 377, v. See Woodard 464 U.S. 273, Kemp, Bowden v. 793 F.2d 275 & n. 4 752, 3, 3, 379 & n. 104 S.Ct. 753 & n. 78 denied, (11th Cir.), 910, cert. (1984) (Powell, J., 106 concurring, L.Ed.2d 541 3289, (1986). Cole ‍‌‌‌‌​‌​​​‌​​‌​‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌​‍S.Ct. Demps v. by justices); joined four other Cf. (10th Saffle, man v. (11th Cir.1989); 1377, Dugger, 874 F.2d 1385 869 F.2d 1381 1396, Cir.1989). Wainwright, v. 755 F.2d 1397 Witt Our task in this case is defini denied, (11th Cir.), 1039, cert. 470 105 tively U.S. to decide by the standard (1985); Stephens 1415, 84 L.Ed.2d 801 judge courts of circuit henceforth will Kemp, 721 1300, (11th v. 1303 F.2d Cir. petitions alleging the abusive nature of Zant, 1983); 727, Potts v. 638 F.2d 740-41 “new law” claims. denied, (5th B), 877, cert. 454 Cir. Unit U.S. Once the abuse of the writ issue has (1981); see 70 raised, petitioner has the burden Wainwright, also Funchess 788 F.2d answering allegation proving, 1443, 1445 (11th Cir.1986) curiam); Ha (per evidence, preponderance of the that he Estelle, ley v. 632 F.2d 1275 Cir. Sanders, has not the writ. 373 abused Estelle, Paprskar 1980); A Unit 10-11, 1074-75; Price v. U.S. at denied, (5th Cir.1980), cert. F.2d 1003 Johnston, U.S. see also (1948); Fun L.Ed. 1356 might An be found chess, 1445; Jones, F.2d at 788 F.2d at peti the district court finds that a where Hence, 164. once the state contends that unaware, tioner was at the time he filed petitioner’s presentation of his delayed petition, legal specific first or factual writ, claim constitutes an abuse of the claim, see grounds supporting his “new” satisfying petitioner has the burden of 1371, 1376 Wainwright, Booker delay district court is excusable. denied, (11th Cir.), cert. noted, determining sufficiency As (1985); L.Ed.2d cf. petitioner’s explanation is a matter (abuse Demps, 874 F.2d at 1392 can occur committed to the sound discretion petitioner deliberately where refrains from Sanders, judge. 373 U.S. at asserting grounds one of two for relief in habeas 1079; Darden, 825 F.2d at 292. petition the first an effort to secure two S.Ct. at Also, opinion, filing petitioner's purposes of a first and of this we must between the distinguish subsequent petitions. between "new" claims and so-called As federal habeas dis- cussed, 1506-08, "new law” claims. "New” claims are those pp. "new law" claims infra presented which are for the first time in a scrutiny only if of the writ will survive abuse subsequent federal habeas second or attorney (assuming reasonably competent subject summary if a and which are petitioner's dismissal counsel), represented at the time present them in his failure initial petition, filing petitioner’s first federal abuse of federal habeas constituted an anticipated reasonably could not particular type are a the writ. "New law” claims changes claims are in the law on which those of "new” claim—those which are based on an based. intervening change in the law that occurred 1506 a upon which to fashion exceptions sonable basis Notably, two there are case, arguments claim). the State’s In this foregoing princi of the application Moore, applies. this standard assume that First, analysis abuse of the ples. hand, implicitly argues on the other altogether if the dis circumvented may be strictly subjective. the determination finds, strictly from the judging judge trict adopt objective Today, expressly we pleadings, that the “new” records and governing standard.11 standard as the conclusively are

potentially abusive claims Sanders, 373 U.S. at 83 without merit. governing the general rules As with 1077; F.2d Stephens, at 721 see also petitions, subsequent habeas disposition Second, notwithstanding peti a at 1303. applied to determine that is the standard failing conduct tioner’s abusive change in is sufficient to a the law whether prior present a claim a federal habeas from an the omission of a excuse claim may adjudicated on petition, the claim petition must accommodate two earlier justice” so re its merits if the “ends compelling, competing, though interests: Sanders, 18-19, 83 S.Ct. quire. 373 U.S. at securing finality to society’s interest 1392; 1079; Demps, 874 F.2d at at see also interest judgments, petitioner’s and a (11th F.2d 666 Thigpen, Ritter v. securing opportunity a full and fair to vin Cir.1987); Kemp, 818 F.2d Mulligan v. rights. gener dicate his constitutional (11th Cir.1987). 451-52, Kuhlmann, 477 U.S. at ally If the standard at 2625-26. were Exception “New Law” to the Abuse C. purely subjective, depending petition on a Doctrine Writ knowledge er’s actual of the claim at the filing petition, of the earlier time of noted, change As in the law exception law” would swallow the “new filing peti of a which occurs between rules, society’s interest in finali and subsequent first and federal habe- tioner’s seriously undermined. ty would be petitions may petitioner’s fail as excuse a petition ure assert in his first a claim objeсtive An standard that seeks to Sanders, change. that is based counsel, reasonably competent if ascertain 1078; Tucker, U.S. at petition, filing at the time of of the first 752; Demps, F.2d at 874 F.2d at 1392. see reasonably anticipated should a later intimated, in previously This court has dic law, however, change in the would better ta, that determination of whether finality principles and accommodate change the omission is sufficient to excuse subjective than the standard. The fairness inquiry, objective of the claim is an certainty objective promote standard would petitioner seeks to ascertain whether or his uniformity from in the law and of results reasonably have known counsel should case-to-case, by making characterization of time the earlier about the claim change depend objec- in the law on the See, e.g., filed. unforeseeability change tive McCorquodale Kemp, 832 F.2d saddling petitioners with the burden or the Cir.1987) (indicating a “new law” “reasonably competent benefit of what legal princi anticipate. claim is one that is based on attorney” could cases involv- ples reasonably past precedent,” “not known” until after the ing “clear breaks with petition); breaking first federal habeas Bowden or a deliberate new constitu- (11th Cir.), petitioner's to in- Kemp, ground, 275 & n. tional failure denied, in an initial federal clude such a claim cert. petition always would be excused under (petitioner had rea- Court, disapproves repre- precedent Supreme in this case was Because arguably practice sanctioned at all times relevant to this sented counsel cases, appeal, longstanding to the “new or overturns a our discussion limited inquiry petitioners widespread practice who law” as it relates to which the represented by spoken, were counsel at the time their a near-unani- Court has not but which body authority expressly was filed. first federal mous of lower Johnson, approved. States v. has See United 2587-88, 537, 551-52, past break with 12. A case involves a "clear past precedent” explicitly it overrules a when

1507 litigants attorneys’ That is so because such with their this standard. mistakes definition, virtually changes, by are unfore- situations which no entitlement to effec counsel, seeable, competent tive assistance counsel reasonably and exists. See therefore, 551, 555, Pennsylvania Finley, be said to have reason- v. 481 cannot U.S. 1990, 1993, changes. (1987) ably anticipated such See also 107 S.Ct. 95 L.Ed.2d 539 1, 16, 2901, 488, Ross, (citing 483, 104 Avery, Reed v. 468 U.S. S.Ct. Johnson v. 393 U.S. 2910, (1984)(a 747, 750, (1969)) requiring rule S.Ct. L.Ed.2d 718 petitioners truly (prisoners a novel issue do to raise is not have a constitutional likely any purpose). right mounting to serve functional to counsel when collateral difficult, typical, sentences); The more and cases in- attacks to their convictions or changes Torna, 586, Wainwright volve that are much less marked. v. 455 U.S. 587- 88, 1300, 1301, objective inquiry is “new law” intended 71 L.Ed.2d 475 analysis (petitioner to facilitate the of claims that are deprived cannot be of ef changes. based on those fective assistance of counsel where he has counsel); right no to constitutional see also therefore, recognize, purely We Carrier, Murray v. objective standard is the one that should (1986) (“the 91 L.Ed.2d 397 disposition control of “new law” abuse of mere fact recognize that counsel failed to doing, In the writ claims. so we make a claim, legal the factual or a basis for noted, gen- As the rule few observations. despite recognizing failed to raise the claim erally represents equitable accommoda- it, does not constitute procedural cause for competing, paramount inter- tion of two default”); Newsome, v. Smith society’s finality judg- ests: interest in Cir.1989) (citing Murray, petitioner’s a interest in ments and secur- 2645) (“We 477 U.S. at ing opportunity a full and fair to vindicate parties represented by respon hold counsel rights. his constitutional Consistent with mistakes.”). sible for their general equitable principles these is anoth- adopt analogous er notion: it is not unreasonable or mani- The rule we to the that, festly inequitable charge to a “new law” standard knowledge reasonably compe- adopted of a proce- with the Court has or, attorney attorney establishing tent if his fails to dural default context for “cause,” anticipate change reasonably a which com- and which the district court reasonably addressing petent counsel could have antic- case relied on in Moore’s abuse ipated, charge attorney’s addressing him with his of the writ claims. In claims, appropriate charge If specifically mistakes. it is relied district litigants attorneys’ establishing with their mistakes in on the new standard law for litigants in Engle situations have a Sixth cause which articulated Isaac, Amendment to effective assistance of U.S.

counsel, (1982).13 certainly charge it extent Engle, reasonable to to the Isaac, Instead, Engle process 13. In due claim. the court found Isаac, (1982), pris- consistently upheld 71 L.Ed.2d 783 a state Ohio courts had oner, constitutionality complained-of jury in his raised federal habeas in- jury given holding claim that one of instructions them structions unconstitution- process rights. al, trial violated his due any attempt by object At the time Isaac to to the conviction, required probably of Isaac’s Ohio law defen- instructions at trial futile, would have been prove pre- futility objecting dants to an affirmative defense to the instruc- later, ponderance of the evidence. Ten months supplied adequate cause for tions would- however, jury the Ohio Court held that Isaac’s waiver. decision, instructions that effect were unconstitutional. Reversing the Su- the Sixth Circuit’s summarily The district court dismissed his rule, Sykes preme and held Court reaffirmed the claim, holding procedurally that it was barred by failing that Isaac had waived his claim comply because Isaac had failed to with an Ohio object jury instructions at trial. The mandating contemporaneous objec- court rule "cause” Isaac’s default Court found that that, jury tions to instructions. he could not be based on Isaac’s assertion court, that the Reversing could not have known at that time state Circuit the district the Sixth constitutionally jury infirm. Appeals Wainwright instructions were concluded that doing, emphasized Sykes, the Court that numer- so (1977), previously preclude had relied on In re did not consideration of Isaac’s ous defendants rule, D. Discussion general indicated that it enumerated might duty a to antic- petitioners claim. 1. Estelle Smith threat of changes in the law at the ipate law” presents two “new changes on those having later claims based peti federal habeas claims in his current procedural default. by principles of barred claim, based on Estelle tion. The first was refined Reed v. Engle The standard 1866, 454, Smith, 451 U.S. S.Ct. 1, 13-16, Ross, (1981), failed is that the state (1984), 2909-10, a 82 L.Ed.2d case which right remain silent him of his to inform the district decided three weeks after consult with counsel and of his presentence probation officer’s prior to the decision. court in this case announced its Fifth, him, in of the of violation interview Reed, and In the Court considered whether Sixth, amendments. and Fourteenth novelty “the of a constitu- to what extent court, Smith, at the time of a state-court the trial sua tional issue Estelle v. the under- sponte, ordered that defendant give for proceeding could ... rise to cause go psychiatric a examination to determine to raise the issue defense counsel’s failure capital competency to stand trial for a his applicable proce- in accordance with state judge subsequently The found the crime. Reed, at 468 U.S. at dures.” trial, and, following a competent defendant inequities noting After the inherent capital crime. jury convicted him of the a a rejection of the notion that a broad sentencing stage proceeding, At the may provide “cause” sufficient “new law” testimony the state offered the default, petitioner’s procedural to relieve court-appointed psychiatrist, who had inter- court concluded that “where a constitu- competen- solely the defendant viewed legal claim is so novel that its basis tional fu- cy purposes, prove the defendant’s counsel, a reasonably is not available to dangerousness, precedent ture a condition to raise defendant has cause for his failure penalty. imposition to the of the death proce- with state a claim accordance Basing testimony competency on his Reed, dures.” 468 U.S. at defendant, psychia- examination of added). (emphasis on trist testified that he believed the defen- court went always dangerous. Relying dant would be question to note that the of whether an testimony, jury imposed attorney upon has a “reasonable basis” Smith, 451 penalty. death See Estelle v. develop legal theory arise in which to can 456-60, 101 S.Ct. at 1870-71. U.S. contexts, variety and then held that Affirming panel a unanimous of the for of those contexts is where the one Circuit, Fifth Court con mer prin- a constitutional Court “has articulated psychia cluded that the State’s use of the recog- ciple previously that has not been testimony the defen trist’s had violated nized but which is held to have retroactive Fifth, Sixth, and Fourteenth amend dant’s application.” Id. at 104 S.Ct. at 2911. rights. Analogizing psychiatric ment Having govern- outlined the basic rules interrogation the custodial examination to ing analysis the abuse of the Arizona, 384 U.S. in Miranda v. determined the standard which “new (1966), 1602, 16L.Ed.2d 694 the Court S.Ct. judged, law” claims should be we next the defendant should have re held that light warning prior must evaluate Moore’s claims a Miranda ceived 466-69, Estelle, 451 U.S. at interview. See those rules. prisoners, say Winship, "could not that state such Isaac, Wilbur, necessary (1970), Mullaney as lacked the tools to construct 368 684, (1975), defining claim." Without their constitutional rule, instructions, despite precise scope jury of its the Court thus objecting to similar duty part established sоme on the of habeas claims often countered fact that defendants' changes Engle, petitioners anticipate principles future of law. well-established having claims barred law at the threat of 102 S.Ct. at 1574. In U.S. at defendants, principles procedural default. many challenges made other Moreover, is, analysis. position at 1875-76. the Court writ there- fore, unanimously concluded that under fundamentally at odds with the amendments, psy- Fourteenth Sixth and position regarding State’s the standard stage was a critical chiatric examination governing “new law” claims. Moore in- proceedings; accordingly, the the criminal sists that this court must evaluate his the defen- State should have forewarned “knowledge” potential of a claim at Estelle attorney dant’s that the results the com- filing the time of of his peti- first federal petency examination could be used for rea- court, maintains, tion. The he must ascer- to determine sons other than the defen- tain whether he intentionally or deliberate- competency dant’s to stand trial. Because ly presenting refrained from the Estelle attorney had not been so defendant’s petition (i.e., in claim his first did he have informed, the had denied defen- State knowledge potential of a yet Estelle claim right to counsel dur- dant his consult with presenting from refrain the claim until it ing stage proceedings. a critical of the available?). explicitly pro- was Moore’s 469-72, 101 S.Ct. at 1876-77. id. posed inquiry essentially subjective, is with primary re The State’s contention with the “newness” of a constitutional claim de- counsel, spect to his claim is that Moore’s pending objective not on the foreseeability (when in 1978 Moore’s first federal habeas “change” law, but, instead, in of a filed), petition reasonably was should have depending on the foreseeability of the (i.e., anticipated holding in Estelle particular claim to a petitioner.14 sup- In application protections to Miranda port position, of his Moore asserts that the capital sentencing proceedings). sup equitable in considerations inherent Rule port position of its that counsel should have 9(b) Governing of the Rules Section 2254 anticipated holding, the Estelle the State by Cases a bar of this disallow claim the Estelle, refers to Battie v. 655 F.2d 692 abuse of the writ doctrine. 1981), in the former Cir. Fifth noted, analyzing As in Moore’s claims for held, purposes retroactivity, Circuit for writ, an abuse of the the district court did not constitute a Estelle new сonsti analogized the “new law” standard articu- and, therefore, principle tutional was to be establishing in Engle lated for suf- “cause” applied retroactively pending to cases col petitioner’s procedural ficient to excuse a lateral review at the time Estelle was an default. The court concluded that Moore nounced. The State’s to reference Battie duty was under a to raise in his first habe- specifically support argu is intended to petition claims, as constitutional based on represent ment that Estelle did not a clear law, intervening changes in the which could past precedent break with condition that —a anticipated have been Moore’s counsel. always petitioner’s almost would excuse Because, according court, to the Estelle peti failure to raise a claim an earlier anticipated by could have been Moore’s tion—but was a natural and foreseeable counsel, Moore’s omission of the Estelle existing princi extension of constitutional petition claim from his earlier was inexcus- ples into a new factual context. The able. argument charge State’s seeks to duty anticipate with a to that extension Applying to the facts of this case the having and to characterize that claim as “new law” standard we have articulated “reasonably available" claims, analyzing potentially abusive it counsel at the time Moore filed his first is evident that the district court did not federal habeas concluding abuse its discretion in

Moore, contrast, Moore’s failure to raise the Estelle claim asserts that Estelle is purposes “new law” for abuse of the his first federal habeas constituted Because, asserts, argument clearly contrary as Moore the focus is on a law this and conduct, petitioner’s conceivably, circuits, in- under this other which looks at what counsel quiry, having could avoid a claim knew or should have known at the time the first principles barred edge if he had no knowl- peti- was filed to determine whether a attorney of the "new but his law" did have tioner's conduct was abusive. knowledge implication of it. This of Moore’s (1976), writ. Estelle significant an abuse of the capital proceedings, provided for bifurcated it ex- simply Moore’s case not because guilt de- stages being devoted and Sixth amendment tended the Fifth respectively. sentencing, Arizona, and to termination recognized in Miranda v. rights to be ad- was intended stage clearly Each versarial.15 (1966), interrogations conducted instead, it is psychiatrists; court-appointed following immediately obvious It recognized appli- it significant because Gregg decision Supreme Court’s protections described Mi- cability of the protec- panoply of constitutional the full capital sentencing phase of randa to a defendant’s normally accorded tions de- inquiry seeks not to proceedings. Our capital sen- applied to merits trial would be whether, 1978, reasonably com- termine Georgia’s in general or to tencing phases reasonably could have antic- petent counsel however, By particular. application of Miranda protec- ipated of those recognized that some Court had by proba- interrogations conducted tions to example, apply. For protections would Instead, in- the “new law” Florida, tion officers. Court, in Gardner v. above, seeks to determine quiry, described (1977), recog- 51 L.Ed.2d 393 November, whether, 1978—the time of in Eighth and applicability of certain nized the peti- filing first federal habeas of Moore’s capi- protections to Fourteenth amendment competent rea- reasonably counsel stating sentencing “the proceedings, tal tion — the eventual sonably anticipated could have sentencing process, as well as the trial sentencing application of Miranda to the itself, satisfy Due Process must the Gardner, Georgia’s capital pro- phase bifurcated 430 U.S. at Clause.” determination ceedings. Relevant to that 1204. S.Ct. at Georgia’s capital punish- status of is the In of the Court’s clear in adversarial na- ment scheme the by that some of the con- recognition, sentencing phase capital of the of the ture capital to protections stitutional afforded scheme, and the extent to which constitu- during ap- their merits trials defendants recog- protections other than those tional sentencing proceedings, a plied as well to nized in Miranda had been recognized and reasonably reasonably competent attorney capital sentencing proceedings. applied to anticipated applica- could have the eventual Hence, reason- we must determine whether protections established Mi- in tion of the counsel, legal searching the ably competent sentencing proceedings. randa capital to expected could have been horizon in Estelle-tyge to make an Moore’s failure application of argue in favor of the petition, claim in his first federal habeas sentencing in Miranda proceedings the therefore, is inexcusable. this case. Wainwright claim. 2. Proffitt pursuant In 1972 and Georgia, decision in Furman v. Court’s federal habeas his second in 408 U.S. for the first time presented Moore also (1972), claim, held unconstitutional Geor- on this court’s court a based federal statute, Wainwright, Georgia gia’s penalty in death decision Proffitt Cir.1982), modified, govern- (11th legislation legislature enacted new F.2d denied, law, Cir.), cert. The new ing capital proceedings. trial F.2d (1983), by the Su- held constitutional which was of the Georgia, the admission into evidence Gregg preme argued jury, sentencing example, the court instruct- During phase, their case to law, jury jury retired to by on the and the made ed the opening statements were to be Thereafter, judge imposed The then deliberate its verdict. prosecution defense. both and the present appropriate in accordance with the given opportunity evi- sentence sides were court, mitigating jury's Cases tried to the instead aggravating circum- verdict. dence of jury, procedures, appropriate followed the same of to effort to establish an stances in an jury judge replaced except as the imprisonment. or life Follow- sentence—death evidence, of fact and the sentence. ing finder of all of the both sides the close 15H presentence investigation report violated the holding, argues, the State Proffitt right his Sixth Amendment to confront and Moore should be found to have been inex- cross-examine the whose witnesses state- cusably neglectful omitting the claim report ments Applying memorialized. from his first petition. federal Moore, in the “new analysis law” enumerated Sec- contrast, asserts that is “new law” Proffitt 11(c), tion we conclude that Moore abused for purposes of the analysis precise- respect claim, the writ with to this too. ly because he did not have knowledge of a potential claim at the time he filed In Proffitt, the defendant submitted to Proffitt his first petition. federal Again, Moore psychiatrists examination two prior to court, insists that in determining sentencing. psychiatrists One sub- whether he had knowledge possible of a sequently was unable to attend the defen- claim, must ascertain whether sentencing hence, hearing; dant’s his views Proffitt Moore was aware potential concerning claim competence defendant’s (i.e., recognized the legal factual and mental state were un- solely submitted in a derpinnings claim) yet report. written deliberately The requested, defendant refrained from receive, presenting but did not opportunity claim his cross- first psychiatrist examine the concerning the re- port. Proffitt, 685 F.2d at 1250-51 & n. For the same reasons we concluded 36a. Moore abused the failing to raise his Estelle claim in initially petition, noted that the first we Proffitt rights secured conclude that Amendment, his failure Sixth to raise his Prof- including claim cross-examine ad- inexcusable. fitt witnesses, Presaging verse apply only to long critical was a line cases Proffitt stages (citations of the trial. Id. at 1252 which Sixth protections Amendment omitted). Next, acknowledging were that the extended in a variety of circumstanc protections of the Sixth Amendment es and do not another line which addressed the apply with full force in all sentencing pro- special safeguards that are constitutionally ceedings, the court noted applica- that the capital in mandated proceedings. For ex bility of rights cross-examination capital ample, 1965, to in the held, in sentencing hearings “has not specifi- separate cases, two that the Sixth Amend cally addressed the provides Court and ment defendants right with the to is an issue of impression first in this Cir- cross-examine adverse witnesses in state cuit.” at Id. 1253. The court concluded criminal proceedings. Douglas v. Ala entitled, that Proffitt bama, was under the 415, Sixth 380 1074, U.S. 85 S.Ct. 13 Amendment, psychia- to cross-examine (1965); L.Ed.2d 934 Texas, Pointer v. 380 sentencing trist at his hearing. 400, 1065, Id. at U.S. 1255. 85 S.Ct. 13 L.Ed.2d 923 (1965). Moreover, the Court repeatedly The State parties’ asserts that the con- recognized has right that the to cross-ex respect tentions with to this claim are es- witnesses, amine adverse like right sentially identical to those raised with re- counsel, is a requirement fundamental for spect the Estelle claim. The State as- a fair trial and for ensuring process due serts counsel, that 1978, Moore’s in reason- law. See Chambers v. Mississippi, 410 ably should anticipated holding have in 284, 294-95, U.S. 1038, 1045, 93 S.Ct. 35 (i.e., the extension of an existing Proffitt (1973); L.Ed.2d Pointer, 297 380 U.S. at principle constitutional right to con- —the 405, 1068; Oliver, In re front witnesses—into the capital context of 257, 273, 92 L.Ed. sentencing proceedings). The State main- tains that the holding part was Proffitt a foreseeable trend toward extending vari- As this court in recognized Proffitt, protections ous constitutional capital right applies cross-examination only to sentencing and, proceedings, such, as stages “critical did of the trial.” Proffitt, clear, not constitute a unanticipatable F.2d at 1252. During 1970s, the 1960s and break past precedent. Because extent to which phases various counsel, Moore’s scanning legal process, horizon criminal including sentencing pro- reasonably could anticipated ceedings, stages” constituted “critical for same attor- by the represented un Moore Amendment was of the Sixth purposes pre- Bonner, Jr., had who Fatico, C. ney, James v. See, States e.g., United settled. petition. state habeas first Cir.1978). pared Moore’s (2d 707, 713-14 F.2d his add Gardner attempt to Moore did however, expand trend, was toward clear until Octo- federal to his first claim of Sixth Amendment panoply ing full habeas newly appointed when rights, ber including confrontation protections, sought to amend leave See, Mempa v. counsel e.g., contexts. into new motion denied Moore’s court district 256- The Rhay, 389 U.S. add the petition to leave to amend (1967) (recognizing for claim, thereof citing support during a Gardner right to counsel Amendment Sixth fed- claim to bringing the delay in Moore’s hear probation revocation sentencing and court, to the claim reference explicit eral Argument Taparauskas, An ing); see also origi- portion of his history procedural Bring Sentencing: at Confrontation

for Moore was indicated that petition which Sentencing Pro nal into the ing the Offender his first he filed (dis of it when fully aware 403, 426-40 cess, Cumb.L.Rev. representation continuous petition, and expanded confronta cussing trend toward collat- and federal during his state trend, con counsel we right). tion Zant, F.Supp. attacks. Blake 1978, reasonably competent eral that, in clude specifical- (S.D.Ga.1981). Without anticipated reasonably could have counsel court, issue, addressing district rights, ly Amendment of Sixth the extension motion, indicated its confrontation, denying Moore’s cap including the was merit- ‍‌‌‌‌​‌​​​‌​​‌​‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌​‍claim that the Gardner The district belief sentencing proceedings. ital by con less: its discretion did not abuse this failure to include cluding explicit Moore’s reference [Cjounsel made constitut original federal in his first issue report claim presentencing demonstrating writ. be- ed an abuse thus petition, had been doubt matter yond claim. Florida Gardner rejected as a basis by him and сonsidered this Court. Counsel’s relief before claim, on Gardner based unfounded. seen as cannot be decision Florida, length question was considered sentencing This (1977), is that the Testimony tribunal. the state habeas penalty death based imposed the judge trial received from investigation report counsel] was presentence [Moore’s part aon the from was introduced had an affidavit nor his counsel and petitioner that neither Upon review, report. prepared the who opportunity to officer meaningful “any trial the examining of the evidence and correct, in violation this supplement,” show that appears This to transcript, amendments. Fourteenth Eighth and alleged to any turned over report was obviously [Moore’s] is not based the claim adversely counsel, ruled development because Gardner the Court legal trial new has filed his first No new evidence petitioner. Moore before to the was decided cast doubt suggested which would federal been determination. on this procedural unusual has an claim This omitted). Clearly, the court (citation in his Id. presented Moore claim history. litigated having as been the claim viewed and state petition first state court. correctly in the state merits, fully find- and on the rejected the claim court the district affirmed Circuit received Eleventh counsel had ing Moore’s trial that Balkcom, 716 v. Moore sentencing denial. court’s prior to his report copy of the a Cir.1983)(on (11th 1511, n. 15 1527 & feder- F.2d filed his first hearing. Moore When again issue raised rehearing). Moore did not he petition November al the dis- petition, and his second federal This omission claim. include Gardner of an abuse the claim as court denied because trict deliberate appears to have been Zant, F.2d Moore history the writ. procedural is noted in the claim at- Cir.1984) (district opinion because, petition and of his portion tached). petition, first federal filed his he time argues that his failure to raise claim even had he not had an opportunity petition present this claim his first federal to can- it. Historically, prove that the “ends justice” not be require considered an abuse consideration of an claim, otherwise petitioner abusive attempt his to amend petition that had to “alleged show that the pre error to add the claim. he Alternatively, asserts cluded the development of true facts or if even his conduct were to be con- resulted in the admission of false ones on a abusive, sidered justice” the “ends of man- question material involving the sentence.” date consideration of this claim on its mer- See Ritter v. Thigpen, contrast, its. the State contends that (11th Cir.1987). In Wilson, Kuhlmann v. Moore did abuse the writ failing to raise 436, 106 91 L.Ed.2d 364 properly this issue before the district court (1986),however, a plurality of that, event, and in any justice” “ends suggested that a must require do not consideration of its merits. make a showing “colorable of factual inno We need not determine whether Moore’s cence,” id. in order to attempt amend his earlier ex- prove that the “ends justice” required cused his Gardner claim, of the omission consideration of the abusive claim. We because we conclude that the claim mer- need not decide which of gov tests these itless. Moore opportuni- had a full and fair erns, for we conclude that Moore has failed ty litigate claim in his state habeas satisfy either law, test. Under Georgia proceedings, presented but no evidence in may a defendant be sentenced to death support Instead, of it. the record devel- if even the only aggravating circumstance oped in the proceedings present state habeas dem- is that the murder was committed during onstrates that Moore’s course of an robbery. counsel was armed State, Jones See presented copy with a Ga. presentence S.E.2d (1979). By only investigation report attacking sentencing to his portion presentence investigation re hearing; that his requested counsel and port which accuracy dealt of facts given a recess to review report; supporting finding that nonstatutory that, upon reconvening, neither Moore aggravating present, circumstances were nor his any objection counsel voiced Moore has not successfully demonstrated report. contents of the Moore now seeks sentence would not in his second habeas in federal prevailed same even if he argument on his present court to evidence that certain infor- regarding nonstatutory aggravating upon mation which the trial court relied in Adams, Dugger circumstances. sentencing him erroneous, to death was but U.S. -, -, 1217 n. he asserts no why reason he failed Without such present such evidence when he had a full proof, Moore make a cannot “colorable opportunity fair to do inso the state showing of factual innocence” the dеath collateral proceedings. Accordingly, we imposed case, in sentence this nor can he conclude that the district court did not demonstrate the error in that sentenc the abuse its discretion in dismissing the claim. ing proceeding challenges he which affect Additionally, assuming that Moore’s fail- question a “material involving ed the sen ure to include the Gardner in claim his Consequently, reject argu tence.” we his petition abusive, first federal habeas was ment that the justice” require “ends of we observe justice” the that “ends of do consideration of his abusive otherwise entitle not Moore to relief on the Gardner Gardner claim.16 appeal, issue, challenges 16. On also including Moore the district performance ineffectiveness the disposition court’s of two additional claims. sentencing phase, of counsel at the was exam- First, Moore asserts that the district court ined in detail the trial court in its order concluding abused its discretion in that he denying the state first habeas More- by failing abused the writ to include in his first over, proof Moore no offers excuse would petition federal his claim that was he denied neglect failing his in to raise this claim in his effective assistance of trial counsel at the sen- petition. Accordingly, first federal we hold that tencing phase proceedings. An examina- finding the court did abuse its in not discretion tion of the record in this case reveals that the 1514 precisely the defense. This of the writ

III. court and the prior opinion of this way the reasons, the district foregoing For the discriminatory the opinion handle present dismissing second order court’s argument. penalty of the death application the abuse of petition as an federal sought of the the benefit has Petitioner iswrit AFFIRMED. held it The court study. district Baldus RONEY, Judge, specially grounds. We do abuse Chief barred on concurring: the this in detail because examine not McCleskey in rejected study was Baldus by the in the result reached I concur 279, 107 S.Ct. 95 Kemp, U.S. 481 v. The court, reasons. but different banc (1987). L.Ed.2d for re this Supreme remanded case Court set forth principles the consideration under Kemp, 824 F.2d — U.S. -, Lane, Teague Cir.1987). Judge Cox’s footnote 16 (1989). think the I L.Ed.2d opinion. posed by question should court address Thus, for habeas any petition second on How does on remand: Court relief, reaching the abuse corpus before affect the decision Teague decision issue, a court could look the writ this court should answer this case? The Teague. claims asserted new change the if does then question even it if the claim determine The court would the writ analysis of the abuse of principle of establish a new asserted would regard Teague. without applied previously has not been law that this remand affords The Court so, if alleged, and whether the facts if a to determine opportunity proce- category of falls into the principle make unneces- analysis would it Teague Teague would not rules under dural which defense, sary to reach the writ abuse similarly retroactively to all situ- be might our Teague affect to consider how If rule not would be ated defendants. should decision. of the writ We abuse petition should be dismissed applied, so The not decision make that determination. reaching the merits and without without of our abuse Teague to reach because in fact regard to there was an whether respond to the does not the writ decision of the writ. abuse remand. Supreme Court’s approach court should this banc you would questions whether Teague way. I realize that in that remand if As of the issues asserted. reach the merits analysis, and it followed if out, pointed second Judge Cox has reach, I the same conclusion reached previously as alleging claims petition necessary to revisit the it not be would serted, may with be dismissed deprive might of the writ issue defense, abuse of out resort opportunity reject the court pleadings if the records and show opinion. prior in banc reasoning of the merit. Sanders United claim without dealt as an alternative This could be with States, however, often do when holding, as we we (1963); Kemp, 721 Stephens v. issues so that a trying to decide are all denied, (11th Cir.1983), cert. F.2d require reconsid- part would not reversal L.Ed.2d court. If the court by the in banc eration of an Teague, If under merits analysis, then it my disagreed reached, can issue would not be authority review its within getting to the abuse would be dismissed without barred claim was on court held that the of the barred under trict the claim was abuse that Pretermitting grounds. discussion principles. writ grounds of was barred on the claim whether Second, challenges court’s the district writ, procedural or abuse of the default either penalty death rejection claim that the of his claim in detail be to examine discriminatory we decline racially Georgia applied in a in study rejected in claim, Baldus McCles was 279, on cause key Kemp, which is based manner. Moore’s U.S. study, raised in first wаs not Moore's Baldus petitions. The dis- L.Ed.2d habeas state or first federal change its decision as to the abuse of In discussing the exception second to the writ suggest standard. I would non-retroactivity, the one argued that is to pending because this case has been long, so applicable here, be the Court articulated ought try wrap to up it all in various formulations of princi- the kind of this decision. ple that would meet the standards of that will, judges course, exception.

Different interpret ways in Teague different until the contours Court never has scope “[T]he defined the of that decision have developed by simply by reference to a appears Court. It to me that perceived need to assure that an individu did Teague things: first, two it instructed al accused of crime is afforded a trial procedure the courts on a new as to the free of constitutional error.” Kuhl timing of a decision that a new constitu- Wilson, mann 477 U.S. principle tional applied will retroactively. be 2616, 2623, S.Ct. (1986) L.Ed.2d 364 Heretofore, whether a decision apply is to (plurality opinion). retroactively corpus petitioners habeas has principle been made after the has been Application of constitutional rules not in corpus announced a habeas case. Al- existence at the time a conviction became ways involved received final seriously undermines the principle rule, benefit of the it was but left to a later of finality which is essential to opera- case to determine it whether would be tion of our criminal justice system. available to other defendants a collateral finality, on a final Without attack conviction. holds criminal law is de- that a prived court should first determine whether much of its deterrent effect. principle a new espoused by a habeas cor- pus petitioner applied would be to other The imposed “costs upon the State[s] corpus petitioners. habeas If it not would application retroactive of new rules of applied, be so then the court should constitutional law on corpus ... consider adopt whether to principle. such a generally outweigh far the benefits of Second, the Court set forth the standard this application.” Stumes, [Solem v.] judge which to principles would [638], S.Ct. [104 given be retroactive effect to habeas cor- (Powell, J., 1984] pus petitioners. Noting that the Court has concurring judgment). made distinction betweеn direct review and collateral for retroactivity review language used Justice Harlan in principles, new adopted Justice leaves Mackey no doubt he meant view of retroactivity

Harlan’s cases exception second be reserved for collateral review. watershed rules procedure: of criminal First, a new rule should be retro “Typically, it should be the case that any actively places if it pri “certain kinds of free conviction from federal constitution- mary, private individual conduct beyond final, al error at the time it became will power of criminal law-making author found, reflection, upon to have been ity proscribe.” Mackey U.S.], 401 [v. fundamentally fair and conducted under [667], 1160, 1180, at 692 U.S. [91 those procedures essential to the sub- (separate opinion). 1971] hearing. However, stance of a full Second, a new rule should be applied might some it situations be that time retroactively requires if it observance growth procedures of “those in social capacity, judi- as well as ‘implic ... are ” concept it liberty.’ perceptions of ordered cial of what we can rightly Id., at (quoting at 1180 of the adjudicatory process, demand will Connecticut, 319, 325, Palko properly understanding alter our 82 L.Ed. 288 procedural bedrock elements that must (Cardozo, J.)). par- be found to vitiate the fairness of a — Teague, at -, such, ticular example, conviction. For 103 L.Ed.2d at 353. my is the case view cross of a fair Because the absence necessary ... now held a

counsel at trial not under- jury venire does any to conviction section on the precedent condition 693-694, crime.” 401 U.S. that must a serious fundamental fairness mine the added). (emphasis 1180-81 seriously dimin- or a conviction underlie obtaining an accu- likelihood of ish the conviction, rule conclude that a U.S., rate we Desist [v. composed of 1969], petit juries be requiring Justice that community that one of the two Harlan had reasoned a fair cross section corpus principal functions procedural ele- be a “bedrock would not man had been incar- assure that no “to ap- retroactively be ment” that would creates procedure under a which cerated exception the second we plied under inno- large risk that the impermissibly articulated. convicted,” concluded cent will be — at -, 109 S.Ct. at 1073- Teague, U.S. that all ‘new’ constitutional “from this (footnotes omit 103 L.Ed.2d at 354-359 pre- improve the significantly which rules ted). existing factfinding proсedures are parameters of this lan- It is within the applied on habeas.” 394 retroactively judge must whether a guage that a court 262, 89 S.Ct. at 1041. U.S. at applied in principle, principle or an old new context, purposes for these a new it desirable to combine We believe principle, it will be makes a new version of accuracy element of the Desist retroactively. exception Mackey the second My examination procedure at issue requirement that implicate the fundamental fairness made in this case convinces me that must claims trial. of them extended retroac- none would be

tively similarly defendants situated to to all Moore. Finally, we that Justice Har- ... believe difficulty in lan’s concerns about The first claim is that the state failed to identifying the existence and the both right to remain silent advise Moore of accuracy-enhancing procedural value of during right or of his to counsel limiting addressed rules can be by a presentence interview conducted exception scope the second to those probation officer after conviction and be- the likeli- procedures without which new sentencing, fore a claim based on Estelle v. is serious- hood of an accurate conviction Smith, 451 U.S. ly diminished. L.Ed.2d 359 Estelle held that the premise operate from the Because we testimony at psychiatrist’s of a admission procedure would be central that such so proceeding penalty sentencing death inno accurate determination of to an privilege against the defendant’s violated guilt, unlikely it cence or we believe compelled self-incrimination because the pro components of basic due many such the ex- defendant was not advised before yet emerge. We are also of cess have right remain that he had the amination that such rules are “best illus the view any statement he made silent and grounds by recalling the classic trated against him. could be used of a writ of habeas for the issuance would have us extend Petitioner proceeding was domi corpus—that by a post-conviction interview violence; prosecu that the nated mob question officer. The is probation perjured testi knowingly made use of

tor right against self-incrimination whether the based mony; or that the conviction was fundamental, application but whether from the defen on a confession extorted probation offiсer’s inter- of Miranda to a v. Lun by brutal methods.” Rose dant character, such a is of the bedrock view dy, J., (1982) (Stevens, procedure “without which fundamental omitted). (footnotes (sen- conviction dissent) likelihood of an accurate

tence) Teague, seriously diminished.” — -, right at 103 would not of cross-examination U.S. witnesses, apply qualifica- to all without L.Ed.2d at 358. tion? If this court is to follow the lan- Moore, espoused by al- principle guage of Teague and the obvious intend- is not of though might appropriate, it be in opinion, ment of words we would character re- the fundamental or bedrock deny application prin- the retroactive by Teague in order for it to be quired ciple which Moore us to in wants establish in a attack applied to all defendants case, guidance absent some further would, therefore, I upon their conviction. from the Court. petition asserting denial of the affirm the alleges The third claim that neither ground that the this claim for relief on the Moore nor his counsel was afforded ade- not to Moore. principle could be quate opportunity presen- to review the The second claim is that Moore was de report prior sentencing pro- tence right and cross-exam nied the to confront ceeding Florida, in violation of Gardner v. testimony hearsay ine whose was witnesses presentence report, in based considered (1977). This does not fit into the Teague Wainwright, of on our case Proffitt analysis, it because does not ask us to Cir.1982), denied, F.2d 1227 cert. adopt principle apply a new law an old U.S. principle situation, of law to a new fact opinion reading A of the Proffitt which should be treated as new law. the notion that itself would seem to refute alleged is not a claim based on ‘new “[T]his principle there announced is a “bedrock peti- law’ declared since the first federal thorough procedural element”. dis Moore, tion.” Teague at 855. sentencing procedures, opin cussion of only applies to “new law” situations. ap that “courts have declined to ion notes corpus cannot used be as a [H]abeas procedural ply sentencing most of the vehicle to create new constitutional rules by the sixth amend rights guaranteed procedures of criminal unless those rules ment.” 685 F.2d at 1252. The court then retroactively applied be would to all de- penalty the death states that because fendants on collateral review. different, capitаl sentencing procedures — at -, Teague, “bring play into constitutional limitations 103 L.Ed.2d at 360. The word “new” is at sentencing present in other decisions.” analysis. the Teague center of holding at 1253. The of the court itself Id. right leaves room for the denial issue, As to this Gardner “_the some situations: to cross- court, opinion of the in banc we said that applies capi examine adverse witnesses court, say We cannot that the district sentencing proceedings, tal at least where ruling petition, on Moore’s second necessary reliability to ensure the finding in- erred failure to (em Id. at 1255 testimony.’’ witnesses’ clude this claim the first added). phasis the writ. abuse of We need not now decide whether it Moore, agree 824 F.2d at 856. I with that inappropriate would announce decision. principle corpus a habeas Proffitt then The court vacated the denial proceeding, had been the law at claim for fresh consideration un- Gardner now, however, appropriate that time. It is justice” principle. In my der the “ends of when the claim that Moore should have judgment, that decision was based on the been able to cross-examine all witnesses going fact that the case was back to the hearsay appeared in the whose statements any anyway, district court and not on no- presentence report, to determine whether entitled to tion that the defendant would be should made this extension of be Proffitt I cannot any relief on that issue alone. retroactive. way fault the this court now handles the writ, being I principle If the is so bedrock issue. There an abuse Proffitt fundamental, why it not ex- affirm the district court’s decision on would would point. Why defendants? tended to all criminal I see no challenged issue. appeal, Moore also

On that, were I to reach the reason to believe disposition court’s of his claim that district issue, expressed my in earlier the views rendered ineffective assistance his counsel changed. Moore v. dissent would be sentencing phase of his trial and that at the (11th Cir.1987), 847, 877 Kemp, 824 F. 2d applied in Georgia penalty the death Hill, J., dissenting. agree racially discriminatory manner. I the treatment of these issues foot- EDMONDSON, Judge, J.L. Circuit majority opinion, note 16 of the which is concurring: by prior the same resolution reached Moore, panel. 824 F.2d banc at Judge I Cox has concur the result question reached. of abuse of the On reasons, agree judg- For these I that the Judge opinion generally, writ Cоx’s seems of the district court should be af- ment my as set out in to be consistent with view firmed. Newsome, Gunn J., Cir.1989) (Edmondson, dissenting). For HILL, Judge, concurring: Circuit reason, opinion. I also concur in his agree Judge Roney I with what Chief approach His determine has written. —to KRAVITCH, Judge, Circuit — U.S. -, Lane, Teague under dissenting: whether Supreme has The Court remanded this petitioner’s er asserted constitutional case to us “for further consideration in applicable rors to the case before would Lane, U.S. -, light of Teague v. [109 undertaking analy an abuse (1989).” Yet 334] clearly approach in this sis—is better opinion1 ig plurality effectively the Cox case, by Supreme remanded to us Court duty nores I is Teague. believe that it our light Teag- for our reconsideration to follow the Court’s remand or I come to no firm conclusion as to ue. improp Teague, der and consider that it is whether, cases, Teague analysis all previous er for us to revisit issues that we precedent deciding should be a whether banc, ly prior resolved en and that our en or not the constitutes an abuse of banc determination in this case was correct. the writ. Accordingly, I dissent. opinion by Judge proper The Cox is the Judge Because Johnson has written a opinion for think that the those who detailing dissent the effect of of the writ issue to be reached. It is not petition, repeat I he will what judge improper for each active on an en I, II-B, already join parts has said. I banc court to face and resolve the issues II-C-1, II-C-2, III-A, III-C, and IV judge If before the court. now on this Judge separate- dissent. I write Johnson’s court considers and decides an issue to a disagree analysis ly because I with his result different from the result that had certain issues. theretofore been reached an earlier court, judge member should vote I. wrong his conviction. It would be for a grant corpus judge to refuse to REMAND OUR ROLE ON penalty petitioner merely relief to a death court, banc, years ago sitting en Two earlier, on an now because the court had Moore’s failure to assert his concluded that vacated, occasion denied relief and the new claims in his first fed- Estelle and Proffitt being tagged judge wished to avoid as eral habeas was not an abuse of wrong just It would be as for whimsical. court also directed the writ. The en banc judge fail to his or her convic- vote to determine whether the the district court deny tion should that vote be to relief. justice required the court to consid- ends of stated, Now, Judge Judge I er claim. As concur what Chief Moore’s Gardner Cox, believing writing he is apparently not reach Roney has written and thus do Judge joined by Judges Tjoflat, Fay, Vance and Edmondson. 1. Written Cox and slate, simply concludes that our higher on a clean reversed or modified court. wrong. decision was Yet the facts irony, Unaware of the opinion ig- Cox interim, changed in have not nor has principles finality, nores such pur- while law. relevant porting to principles. vindicate those same See, ante, e.g., at 1504. plurality The fact clutches that the prior opinion Court vacated our and remanded the case for our reconsidera- II. only way tion in Teague. unique to have us consider APPLYING TEAGUE TO

way Teague interacts with the abuse of the MOORE’S PETITION doctrine, however, by vacating A. prior opinion. our in- We should draw no order, way ference from a remand one or Georgia Supreme The Court affirmed other, as to the Court’s of the view conviction 1975. When the Su prior opinion.2 correctness of our en banc preme Court denied Moore’s for should, however, interpret We the remand certiorari on October 1976 his conviction meaning says: order as what it our task on purposes became “final” for the of our prior remand is to reconsider our decision analysis Teague.3 under v. Cf. Griffith is, light Teague, Teague that whether Kentucky, opinion. our affected earlier We show no ‘final,’ n. 93 L.Ed.2d 649 (“By we greater fealty Supreme Court than judgment mean a case which of convic when we construe the to mean Court what rendered, tion has been the availability of says, plurality it but the has chosen a dif- exhausted, appeal and the time peti for a path. ferent elapsed tion for certiorari or a for course, power Of we have the to revisit denied.”). finally certiorari any prior issue determined en banc Having ascertained the date Moore’s con view, however, my court. In we should not final, step viction became the next is to power, particularly exercise that in this raising determine whether a claim he is is a case, doing plain where so flouts the mean- claim, i.e., “new rule” a claim in which he ing Supreme Court’s remand order. seeks the benefit of a rule announced after long recognized princi- Courts have that his conviction became final.4 If a claim is fairness, ples finality, efficiency rule,” seeking one the benefit of a “new against redetermining counsel issues that Teague then under the federal habeas already been decided the same may not entertain the claim unless case,” court. Under rubric “law of the exceptions.5 the rule fits into one of two principles give these rise to the rule that — U.S. -, case, Penry Lynaugh, v. once a court has decided an issue in a that issue remains settled unless or until it S.Ct. 106 L.Ed.2d 256 opinion suggests simply applying 2. Cox that benefit of a rule announced after the Teague prior opinion implicitly prior to our must rest filed a ap- on the belief that the Court has 5.Judge suggests Teague and the proved Johnson that of our determination. The re- principles nonretroactivity implicit ap- mand order does not constitute an are affirmative proval prior opinion. may disagree. of our Nor does it consti- defense that be waived. I Per implicit disapproval mitting Teague tute or constitute a di- a state to waive some cases "go you rection to back and do whatever want.” very and not in others would create the unfair more, says, The remand order means what it no disparate similarly ness treatment of situ your prior opinion no less: "reconsider petitioners Teague sought prevent. ated Teague." I believe that a federal habeas court must con Teague analysis applies duct an of whether as a — U.S. -, Penry Lynaugh, In 3. matter, reaching, example, threshold before for (1989), 106 L.Ed.2d 256 — Penry Lynaugh, the abuse of the writ. See case, applied Teague capital settling to a U.S. -, question that itself had not resolved: the (1989) ("Penry currently before the Court on nonretroactivity principles Teague apply to petition in federal court for a writ of habeas capital cases. Penry corpus. Because is before us on collat determine, review, contrast, By we must as a threshold a “new law” claim in eral matter, the abuse of granting seeking him the relief he seeks the writ context means a claim whether new relationship of the solely on the Moore’s cuses Judge agree Johnson I with prior law: rule to for are “new” claims and Gardner Proffitt however, case announces agree general, I also retroactivity purposes. or ground new it new rule when breaks Estelle, F.2d 692 under Battie v. obligation on the States imposes a new claim is ‍‌‌‌‌​‌​​​‌​​‌​‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌​‍Cir.1981), v. Smith Moore’s Estelle put To it dif- the Federal Government. retroactivity purposes. for not “new” if rule announces a new ferently, a case Therefore, may entertain we Proffitt prеcedent result was not dictated only they if fall into claims and Gardner con- defendant’s existing at the time the exceptions Teag- outlined the two one of final. viction became hand, Teague does the other ue. On (citations omit- at 1070 Teague, 109 S.Ct. claim at all. affect the Estelle Smith ted) should not (plurality opinion). We sugges- Judge disagree Johnson’s I of whether a rule questions conflate law” a claim is not “new that because tion purposes op- as nonretroactivity for new may not be retroactivity purposes it for purposes. the writ posed to abuse of the purposes “new law” Thus, per- writ, I do not or vice versa.6 B. our decision any ceive tension between and the Gardner Because both Proffitt is not holding that v. Smith Estelle Battie purposes, retroactivity for claims are new retroactivity purposes and our for new law the step is to determine whether the next ruling the Estelle prior en banc exceptions either of the two claims fit into new claim for abuse claim was a law Smith presented Teague.8 purposes. of the exception for rules that The first new not rush in where I will retroactively is where the applied will be try to tread and has hesitated primary, kinds of places rule “certain new re- is “new law” for either define what beyond pow- private individual conduct purposes.7 troactivity of the writ or abuse law-making authority to criminal er of the simply to (cita- it will suffice For this dissent 109 S.Ct. at 1075 proscribe.” Teague, underly- equitable principles omitted) opinion). This ex- (plurality note that the tion plainly applicable to either properly ception focus on not ing the of the writ claim. conduct, or Gardner his coun- petitioner’s or that of Proffitt travelling pro se. if he was not sel exception Teague’s gener- The second Newsome, generally Gunn v. applied not be al rule that a new rule will banc). (11th Cir.1989) (en By con- 957-96 retroactively collateral review encom- on trast, the conduct of the habeas passes fundamental rules “without which determining attorney is irrelevant to or his conviction is likelihood of an accurate Teague, is new for retroactiv- seriously a rule of law diminished.” whether opinion).9 (plurality at 1076-77 retroactivity analysis fo- ity purposes. Lane, drops my Teague claim out of 8. The Estelle v. Smith a ‘new rule.’ would create U.S. -, -, 1060, -, analysis law Teague it is not new because L.Ed.2d Teague purposes, retroactivity therefore Teague, Under new rules will not implicated. applied in cases on collateral be or announced they excep one of two review unless fall into explained why a fundamental Harlan 9. Justice at -, at -.”). tions. Id. retroactively Mackey should be rule United States: reading disagree Judge 6. I also with Johnson’s might it be that time and some situations [I]n suggestion as a Court’s remand judicial capacity, growth as well as in social only are law for "that decisions which new rightly perceptions can demand of of what we may retroactivity purposes a successive excuse properly adjudicatory process, alter will petition.” understanding procedural bedrock our See, ("It to vitiate the that must be found e.g., Teague, is ad- elements 109 S.Ct. at 1070 particular For exam- conviction. fairness of mittedly to determine when often difficult such, right rule, my ple, is the case with the view and we do not a new case announces necessary condi- may trial now held a spectrum to counsel at attempt of what to define the any precedent conviction for a serious retroactivity may rule for tion a new not constitute opinion). crime. purposes.") (plurality claim, agree Judge I with that both the to his Johnson Estelle v. Smith I do not. In my and claims fit within the view prior Gardner en banc court was cor- Proffitt exception. Both terms of second are rect Teague and does not affect that deter- confrontation, based on the and mination.10 system inquisi- our adversarial —unlike I agree Judge also Johnson that the depends upon

torial above all else method— district court should consider whether the right of confrontation arrive at an justice ends of call for the court to enter- accurate result. tain Moore’s Gardner claim. As the clear, en banc court made Moore’s Gard-

III. ner claim does indeed have merit. Moore genuine dispute has raised a factual as to ABUSE OF THE WRIT whether and when his counsel received the Because the Gardner claims Proffitt presentence investigation report, report may applied retroactively petitions which indisputably many contained inaccu- relief, for collateral as a threshold matter racies. these claims are available to Moore. Be- finding cause the Estelle v. Smith claim is not claim Gardner without retroactivity purposes, merit, “new” for majority reasons that because a play, does not come into and that claim is may defendаnt be sentenced to death with also, matter, as a threshold available to only aggravating circumstance, one e.g., step Moore. The next is to determine committing during the murder the commis- writ, whether Moore has abused felony, sion of a challenge Moore must presenting thus disentitled himself from very aggravating circumstance for through equitable these claims remedy justice apply. ends of I emphatically See, corpus. of the writ of habeas e.g., disagree suggestion. with this The court States, 1, 17, Sanders v. United 373 U.S. imposed penalty the death on Moore 1068, 1078, (1963); 10 L.Ed.2d 148 presentence investigation had an inaccurate Newsome, Gunn v. 881 F.2d at 954-56. report. very purpose report The of this sentencing to enable the agree Judge I to make a Johnson that Moore reasoned and informed failing did not decision on whether abuse writ to raise the impose Judge penalties. to that most final of sug- claim. While Johnson The Proffitt impose gests penalty that the choice to the death based on Court’s discussion retroactivity purposes impli- of new law all available and accurate information prior really cates our en is the majority banc determination that state’s. Does the respect Moore had not abused the writ with believe that the state court would not be 667, 693-94, Mackey, 401 U.S. which the likelihood of an accurate conviction (1971) (separate opinion) 28 L.Ed.2d 404 seriously Teague, diminished.” 109 S.Ct. at (quoted Teague, (plurali- S.Ct. at 1075-76 Stevens, (plurality opinion). Justice how- ty opinion)). ever, concurring in the use of while Harlan’s implicate accuracy A rule must of a con- framework, analytic disagreed plurali- with the exception viction in order to meet this second to ty’s exception, modification of the second and Teague’s nonretroactivity rule of one because rejecting own the link- adhered to Harlan’s view purposes corpus the main of the writ of habeas age of fundamental fairness to factual inno- is, Desist, as Justice Harlan noted in "to assure addition, cence. In Stevens noted that "a touch- that no man has been incarcerated under a procedure provide stone of factual innocence would little impermissibly large which creates an cases, guidance important types in certain risk that the innocent will be convicted.” Thus challenging constitutionality such as those significant- "all ‘new’ constitutional rules which ly improve sentencing hearings." Teague, capital pre-existing factfinding proce- J., (Stevens, joined by S.Ct. at mun, J., Black- 1080-81 retroactively applied dures are to be habeas.” on (footnote omitted). concurring part) States, Desist v. United (1969) (Harlan, Although Judge Roney Judge and Hill Chief J., dissenting) 10. Teague, (quoted in agree should that the court first have (plurality opinion)). presented Teague to the issues before consider- Teague plurality fashioned the second ex- The writ, ing they agree concerns, of the do not with the abuse by combining ception these two and dissenting judges’ conclusion "limiting scope exception five of the second to procedures Moore’s claims. those new without does not bar [fundamental] JOHNSON, Judge, dissenting, Circuit justified imposing penalty of less than HATCHETT, Judge Circuit in which presen- death once the inaccuracies of the KRAVITCH, joins and ANDERSON investigation report brought tence were CLARK, Judges, join and Circuit state’s attention? I find it an intrusion part: proper into the role of the state courts for step ignores the Su- a federal court to in and declare that Because this Court1 contrary preme Court’s mandate and rules penalty impose the state must the death rebriefing previous decision without its challenges applicable ag- unless Moore all decides, I reargument or of the issues it circumstances, gravating I know of no must dissent. authority support unprecedented such an justice require The ends of should rule. THE THE I. PURPOSE OF EN court to reach the merits of district BANC REHEARING claim. Gardner July On this Court issued its en opinion reversing banc the district court’s IV. grounds dismissal on abuse brought all claims his second CONCLUSION petition. Kemp, Moore v. See Cir.1987) (“1987 opinion”). F.2d 847 writ issue decided The Court held that Moore’s claims today the court was decided before brought Smith, under Estelle v. banc; was, however, court en it decided the (1981), 68 L.Ed.2d 359 way. previous other This of our reversal Wainwright, 685 F.2d 1227 Proffitt is, best, unseemly decision as there has (11th Cir.1982), reh’g modified, denied as intervening legal no factual devel- (11th Cir.1983), denied, 706 F.2d 311 cert. opment explain or excuse reconsidera- 1003, 104 tion of the abuse the writ issue. The (1983), should not been dismissed be our en Court vacated banc they cause were based law unavailable decision for reconsideration in to Moore at the time of his first 9(b) Governing Rule Section give Teague. It did not us carte blanche cases, 28 Foll. U.S.C.A. It also § reexamine entire case. claim, brought held that a third because years ago origi- I Five dissented from the Florida, 349, under v. 430 Gardner U.S. 97 panel nal that affirmed the district court's 1197, (1977), S.Ct. 51 L.Ed.2d 393 called determination had that Moore abused the question accuracy into the of the facts un years ago joined majority writ. Two I the derlying sentence, Moore’s it merited fur opinion explaining of the en why banc court justice” ther consideration on “ends of Moore had not abused the writ. Even if I grounds. Murray, v. Smith Cf. did not dissent from the result reached 527, 538, 2661, 2668, 106 91 L.Ed.2d S.Ct. majority today, I would like to think (1986). 434 The Court then remanded I that would dissent from the decision to three Moore's claims to the district court. opinion revisit our en and to banc petitioned Supreme The state Court for ignore Supreme 29, 1989, Court’s remand order. of certiorari. writ On March Accordingly, again I Supreme once dissent. Court vacated this Court’s in, single opinion majority 1. No commands a of the concurrence also accedes and thus effective- conclusions, Cox, plurality opinion ly joins, plurality’s Court in this case. See of reached in J.; concurring opinion Roney, flagrant disregard Supreme of CJ. In discuss- Court’s man- of the decision, date, ing reasoning today's I will of the writ issues. See con- the abuse Thus, C.J., primarily plurality opinion. curring opinion Roney, address the Chief at 1517. Judge Roney's special respond discussing plurality" concurrence does while I refer to “the mandate, reasoning, specific aspects plurality’s Court’s and addresses of the I below, although, generally some of I discuss "the the issues also refer to “the Court” and below, agree majority” discussing generally reasons discussed I do not the Court’s However, Judge Roney's holding conclusions. Chief in this case.

1523 decision and remanded it for reconsidera briefed or reargued.2 No principled reason — Lane, tion in v. U.S. exists for the 1989 version of the Eleventh -, 1060, 103 L.Ed.2d 334 Circuit to rule differently from the 1987 — Moore, (1989). See Zant v. U.S. -, version of this Court. The majority’s ac 1518, 109 (1989). S.Ct. 103 L.Ed.2d 922 tion in this case exhibits the sort of “arbi trary discretion” in disregarding prior deci time, In intervening decisions in this against sions Court see, e.g., circuit, has Dugger, v. 873 F.2d Tafero recently warned. See Patterson v. Mc (11th Cir.1989); 251 Gunn v. New — Union, Lean Credit —, U.S. some, 109 851 (11th F.2d Cir.1988), 1296 2363, 2370, 105 aff'd, on reh’g, 881 F.2d (11th Cir.1989); 949 (quoting Federalist No. (A. at 490 Ritter Thigpen, 828 F.2d Hamilton) (H. Lodge 1888)). ed. Adherence Cir.1987); Mitchell Kemp, past decisions the law (11th Cir.), “ensure[s] denied, cert. will not merely change erratically, but will U.S. develop in a principled intelligible fash (1987); Daugherty Dugger, 699 F.Supp. ion. That permits doctrine society pre 1517, 1520 (M.D.Fla.1988), n. 2 and in other sume that bedrock principles are circuits, see, e.g., Maschner, founded Hannon v. in the law rather proclivities than (10th Cir.1988); F.2d Mercer v. Vasquez v. individuals....” Armontrout, Hillery, (W.D. F.Supp. 254, 265, 106 Mo.1988), appeal dismissed, 864 F.2d 1429 (8th Cir.1988), have been rendered with

Moore as their guide. addition, numer The fact that stare decisis is technically ous unpublished decisions from this Court’s inapplicable to this provides case little sol- special capital docket of cases have relied ace to those members public of the and the on Moore’s formulation of abuse of the expect bar who to encompass law more principles grant writ deny stays proclivities “than the of individuals.” The execution. approach of the plurality opinion in this might case

Today, legitimate this somewhat Court rules if explana- without it were announcing tion its 1987 decision in a new rule of Moore is a law. meaningless sport in claims would then seem law. Neither Con- to be dis- gress, by operation missed Supreme Court, nor the nor of law rather this than However, Court have whim. altered the the plurality applies standards used to judge same law as did claims since this Court in yet this 1987— opinion. Court’s 1987 completely No with a new facts By different result.3 put before this operation Court principle since its 1987 no of which I am opinion is, issued. fact, Petitioner can this aware Court reach a result con- precisely position same trary before that which it reached under identi- today as he was at time cal law and years ago. facts two Surely opinion. Moreover, the merits of this this constitutes the sort of “arbitrary dis- opinion Court’s 1987 have not been re- cretion” condemned Patterson. might expected, given 2. As be Supreme petitions alleging abusive nature of ‘new law’ mandate, parties claims.”) Court's argued below applies objective It an standard which meaning application Teague and of v. Lane. reasonably "seeks to ascertain counsel, competent if They reargue were not asked to rebrief or filing at petition, the time of of the first abuse of the writ issues Court reasonably this redecides anticipated should have a later today. Presumably, plurality’s change conclusions precise- law.” Id. 1506. This is are years on briefs ly based now more than objective five applied by the same standard this (of old the dim recollection opinion. those members Court in its 1987 See 824 F.2d at 851 there) ("[Moore] argu- Court who were of chargeable an oral is the knowledge ... place ment ago. length which took the same of possessed by reasonably time would that competent have been peti- counsel at time of the first tion_ [Reasonably competent counsel ... plurality purрorts

3. The "adopt” a reasonably expected new rule. could not have been 1506; ("Our See at id. at claim]”); 1505 task this case is foresee v. Smith [Moore’s Estelle id. at definitively (standard to decide the standard which reasonably is what "counsel judge courts this circuit foreseen”). of will henceforth have should Moore’s three claims were determined that plurality’s failure to follow our earli-

The writ, unprincipled more abuse of the even er decision is even not barred as not fact that this case was though view of the is Moore’s second this light Supreme a Court remanded “in of” court remand to the district This Court’s involving of the writ. Obvi- decision abuse may claims of Moore’s for consideration to conform ously, this Court would have the retroac- premature because Supreme precedent. itself to new relied on which Moore tivity of the cases However, Teague v. Lane is not a case Moore is enti yet had not been addressed. writ, plurality involving as the only to full consideration on the merits tled “reconsiderpng] recognizes. Instead of its he relies have retroac if the cases on which Lane,” opinion light Teague of Fleming Kemp, application. tive See ignores portion of the Su- plurality Cir.1988), cert. de 837 F.2d preme surplusage. mandate as Court’s — nied, -, U.S. Teague The remand in of Court’s (1989); Advisory Com L.Ed.2d see also meaningless. I would reaffirm this not 9(b) (“[a] mittee Note Rule retroactive apply Teague to opinion Court’s may “failure to change in the law” excuse contemplated by I this case as believe was petition”). The ground assert appli- order. Because Court’s Supreme Court’s action allows this Court to necessarily re- cation of does not question.4 address that threshold petition, I of Moore’s sult the dismissal proper I be the set forth what believe to A. Waiver disposition of the case. proceedings At no time in these has the upon the decisions relied II. THE APPLICATION OF state claimed that TEAGUE applied by Moore should not be retroac bright-line Teague establishes a rule for tively sentencing in 1974. Moore creating judicial decision “new law” when argues has that the state therefore waived retroactively in criminal will be opportunity to raise the defense non- yet com- cases. Defendants who have not —Moore, retroactivity. See Zant v. U.S. appeal process at the time pleted the direct -, 103 L.Ed.2d 922 of a rule of the announcement new will (Blackmun, J., (1989) dissenting) (“pеtition benefit; its defendants whose con- receive non-retroactivity as a de er did not raise are final not. The decision victions will respondent’s claim for federal ha- fense to exceptions, one of which is provides two relief, therefore A and that defense applicable to this case. rule will be beas defendants, waived”). appears applied retroactively to all It should be deemed if appeal proceedings, or in collateral non-retroactivity direct de affirmative procedural elements” Francischine, it concerns “bedrock fense. See United States accuracy enhance the trial (5th Cir.), denied, cert. decision. 109 S.Ct. at 1076-77. court’s 931, 96 S.Ct. (1975) (“the should not have con logic clear The remand becomes retroactivity of sidered the United States procedural posture of this

when the 645, 38 v. Maze [414 this is Moore’s case is examined. Because ... issue was L.Ed.2d petition, jump he must first ] [t]he second the court as a defense to 9(b) opinion properly This before Rule hurdle. Court’s gives opportunity Court the The remand 4. Court’s order also necessitates holdings is not "new consider whether a decision which inquiry of this Court’s on the into one retroactivity may purposes question abuse of the writ. This law” for initial excusing purposes opinion deemed unforeseeable held that Estelle v. Smith Court’s 1987 words, change In other the remand abuse of the writ. in the law which was an unforeseeable adoption of a may to consider the ask this Court Moore’s failure to raise his claim in excused change significant any law in the petition. & n. 12. rule that prior However, 824 F.2d at 853-54 enough of the writ must also previously to excuse abuse held in the re- this Court purposes of retroac- rule” for troactivity constitute a "new Estelle v. Smith did not context that tivity. below in Part I discuss this issue principle Battie v. a new of law. See announce 692, 11(C)(3). Estelle, (5th Cir.1981). F.2d 697-99 probation”). for revocation of held exceptions that the Teague context, In the habeas the defense of non- apply capital in the Only context. if Id. retroactivity has been available since at Teague exceptions applied are fairly per- Walker, least Linkletter v. 381 U.S. application mit retroactive procedural of (1965)(establish- rules which enhance the accuracy of sen- ing determining propriety standard for of application tences will the Teague of law). application retroactive of new Al- pass Moorе’s claims constitutional ‍‌‌‌‌​‌​​​‌​​‌​‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌​‍muster.5 though Teague expressly modifies the test in Linkletter a manner which disad- Teague Exceptions C. The and Moore’s vantages litigants, collateral it does not Claims create a new defense which previously Teague applicable Because is to Moore’s unavailable to the state. claims, this Court ques- should tackle the However, argues quite per the state tion of retroactivity of the cases relied suasively that it has not waived the de upon by Moore. I Teague believe would proper fense time because to raise it properly applied be following man- case, has not arrived. In Moore’s the state ner: pleaded abuse of the writ immediate response to Moore’s That shifted 1. Gardner prove the burden to Moore to that his suc Supreme Court, The in Gardner v. Flor cessive was not gen abusive. See ida, erally Thigpen, Ritter v. 828 F.2d 662 (1977), capital held that defendants (11th Cir.1987). Only preliminary issue must have access to and an opportunity to litigated the writ has been thus explain deny or information which the state far. The state claims that there has been sentencing.6 considers in Teague provides any no need to raise defenses on the mer application retroactive of “accuracy-en its, i.e., non-retroactivity, until the abuse hancing procedural implicate rules” which Although issue is settled. no directly case procedural the “bedrock elements” of a issue, this I arguendo addresses assume Id., criminal conviction. 109 S.Ct. at 1076. that the state has not waived the defense. principle enunciated in Gardner Applicability

B. The Teague Cap- clearly such a rule. This rule is meant to ital Cases provide fact-finding through for better ad procedure. versarial Gardner allows cru Raising another issue pre- which would cial supple information to be clarified and application termit to his mented. The result is that the sentencer claims, argues that Teague should improved has an and more accurate view of applied capital be at all sentenc upon the facts which the sentence should ing context. The Court has re be based. Id. at 97 S.Ct. at 1205 jected argument. Penry Ly See — U.S. -, (scrutiny presented of evidence to be dur naugh, (1989) ing sentencing phase (applying 106 L.Ed.2d 256 minimizes Teague to “[t]he cases). capital However, doing accepted so of the information risk that some Teague provides (1988) applicatiоn (accuracy for retroactive procedural new rules "without which the likeli- of death sentence undermined consideration seriously hood of an accurate conviction is di- convictions). prior felony of uncounseled Id., minished.” language 109 S.Ct. at 1076-77. If this accuracy of a sen- represents 6. I assume that Gardner new law for tence, important capi- then most decisions in the retroactivity purposes. Penry, sentencing given tal context should retroac- ("a case announces a new rule when it See, e.g., Dugger, tive effect. Hitchcock v. ground obligation imposes breaks new or a new L.Ed.2d Government”) on the States or the Federal (accuracy of death sentence undermined 1070). (quoting Teague, 109 S.Ct. Gardner’s non-statutory limitations on mitigating consideration requirements opportunity of access and to ex- factors); Gardner, supra, (accuracy plain deny previously information withheld of death sentence undermined sentencer’s capital undoubtedly imposed from defendants consideration of information unavailable to de- fendant); obligation "new on the States." Mississippi, Johnson v. ‘integ- ultimate question into the erroneous, tion “calls may be bemay in confidence (citations ”) fact-finding process’ by rity the investigator or misinterpreted, by the forth in omitted). right set Teague, procedural The sentencing judge”). Under example appli paradigm then, retroactive perhaps Moore is entitled to is Proffitt exception set accuracy-enhancing cation of Gardner.7 no doubt in There can be Teague. forth 2. retroactively. applies Proffitt Proffitt similarly entitled to retroactive is Moore 3. Smith Wainwright, v. application Proffitt Cir.1982), (11th as reh’g denied Smith, F.2d 1227 claim on Estelle based Cir.1983), (11th 706 F.2d 311 modified, 454, 101 1866, 68 L.Ed.2d 359 451 U.S. 509, 1003, denied, 464 U.S. cert. that his other (1981), presents problem a (1983).8 This in Court Prof- is not “new law” do not. two claims Smith had the capital defendant held that a retroactivity purposes. fitt See Battie for witnesses at right psychiatric confront to (5th Cir.1981). Estelle, 696-97 655 F.2d sentencing hearing. right This has its opinion that held in its 1987 Yet this Court ‘accuracy of “assuring] foundations purpose of new law for the Smith ” truth-determining process.’ Cham to raise it in his excusing his failure 284, 295, 93 Mississippi, bers v. Moore, & n. 824 F.2d at 853-54 (1973) (ci iden possible 12. The interrelatedness omitted) (cited in Proffitt, tations conceptions of “new law” tity these two 1254). that cross-examination The idea have addressed this Court should what fact-finding is at accuracy of improves the I to discuss Although hesitate on remand. American аdversarial foundation of the dissent, I of a issue in the vacuum at 1251 Proffitt, 685 F.2d system. See least problem should at be think the (“Cross-examination placed on a has been presented. right opportu notice and an par to with maintain the asks the Court to Moore counsel, right and the nity to be heard opinion in our 1987 position taken require minimum are fundamental which law for retroac- decision which is not new comporting trial ments of a fair an unfore tivity purposes may constitute clause.”). right to cross- process due change in the that excuses seeable law expressly examination created Proffitt being dismissed as petition from successive quality of informa improving based Moore, n. 12. 824 F.2d at 853 abusive.9 See “reliability of fact- tion available and only opinion cited This in its 1987 also finding.” 685 F.2d at 1253. See F.2d 1282 Wainwright, 725 Alvord v. Mississippi, 410 U.S. at Chambers denied, Cir.), (denial cert. of cross-examina- York, New was filed Williams v. Moore’s first federal habeas 7. Nevertheless, year after Gard- in November more than a 93 L.Ed. 1337 rule, was decided. Moore’s belated Gardner of Fur- ner new this Court created a opinion claim was excused this Court’s granted a progeny, defen- its man and 9(b) analysis in order to further the in its Rule psychiatric right wit- cross-examine dant the justice,” un- not because Gardner was “ends testimony in sentenc- is contained nesses whose when Moore filed his first foreseen “new law” fact, yet go as ing reports. Court has finding petition. The that Gardner creates expanding a defen- requests Moore far as accuracy-enhancing rule that warrants sort of right witnesses cross-examine adverse dant’s sentencing application to Moore’s retroactive original during sentencing. broad This Court’s way the concur- is in no inconsistent with to establish opinion was modified in Proffitt finding to raise the that Moore's failure rent psychiatric only right witnesses. to examine might his first federal habeas claim in 706 F.2d at 312. justice. the ends of excusable to further ap- Teague only retroactive addresses 9.Because represents new law assume that I Proffitt law, S.Ct. at plication see 109 of new retroactivity purposes. The Court in Proffitt bar consid- argues does not capital had no defendant noted that of his Smith claim of the merits eration were whose statements witnesses cross-examine non-retroactivity. sentencing. reason considered (1984), support 9(b), in of der 83 L.Ed.2d Rule the district court must con- sider the However, merits of Moore’s if claim proposition. Moore’s Alvord Proffitt change constitutes retroactive finding “[a] in only held that the Battle that Proffitt in Advisory the law.” See Committee Note retroactivity not new law for Smith was 9(b); Rule see also Sanders v. United purposes necessarily did not mean that States, 1, 17, 373 U.S. for anticipating counsel was ineffective (1963) (“the applicant may holding failing point its raise a hearing be entitled to a upon showing new appeal. excusing the standard Because for intervening change law”). in the As the failure to foresee a new decision is 11(C)(2)above, discussed Part Proffitt different in the ineffective assistance con- clearly change worked a in the law which text, necessarily Alvord does not stand for applied retroactively must be Teag- under proposition that a would sim- Proffitt, capital ue. Before defendant ilarly in the of be excused abuse the writ had no cross-examination at the sen- precedent context. Alvord is weak for tencing phase Williams, of his trial. See Moore’s claim that this Court should rea- 1084; 337 U.S. at see also holding dopt its can simulta- Smith Moore, 824 F.2d at 854 (complete discus- neously be old law and new law. The why sion of constitutes new law Proffitt Supreme Court’s remand of this case in purposes writ). of abuse of the Be- light may suggest only of Teague deci- cause was an unanticipated change Proffitt retroactivity sions are law for new in the law which should be retroac- purposes may petition. excuse a successive tively, Moore’s successive claim should be so, If then Moore’s claim Smith would excused from dismissal.

have to be dismissed. The remand should B. Estelle v. Smith

have forced this Court to take a hard look relationship at the between its definitions 11(C)(3), As discussed above Part of “new law.” Court’s Teag- remand

ue, case, a retroactivity seems aimed at distinguishing Court’s tenuous of Bat THE III. ABUSE OF WRIT Estelle, (5th Cir.1981). tie v. 655 F.2d 692 Although I think it ill-advised to revisit Moore, 824 See F.2d at 853 and n. 12. Our change our 1987 decision absent a response might to the mandate be to hold facts, Pettway law or v. American definition of new law for retroac- cf. Co., Pipe tivity Cast Iron 1197 n. and abuse of the writ are the same. (5th Cir.1978), holding denied, Such a would leave us no choice cert. but to hold that Moore’s Estelle v. Smith 59 L.Ed.2d 74 claim constitutes an of the writ. against (counseling redeciding questions retroactivity This intersection crucial cogent “absent the most reasons such as jurisprudence and abuse of the writ is what injustice”), the avoidance of manifest I feel plurality addressing today. should be compelled to plu address merits of thе question great It importance, is a rality’s ignore Teague decision to and af might finally provide answer which some firm the district court’s decision to dismiss vague definition to our notions of what 9(b). all of Moore’s claims under Rule constitutes “new contexts. law” various majority’s position10 that Moore has abused the writ is untenable. C. Gardner opinion This Court’s 1987 remanded

A.Proffitt brought Moore’s claim under Gardner v. This decided Proffitt, supra, five Florida, months after the district court decided (1977), for consideration justice might Moore’s excuse first federal habeas Un- whether ends in, Again, only effectively join, plurality's plurality I note that while accede disregards opinion flagrantly repudiation opinion of this Court’s 1987 reaching redeciding regard concurring to abuse of the Court’s mandate in writ. issues, C.J., Roney, concurring judges opinion abuse of at 1517. (1986)). Since in his claim to raise the Moore’s failure true, very claim, goes to the if is based on claim petition. Moore’s first fact-finding, the trial court’s integrity of provide him a alleged failure the state’s correct, petition may excusable review, second meaningful opportunity imagine no justice.11 of I can against interests presented supplement evidence present- compelling excuse that than found the more sentencing. This Court at him allegedly by petitioner sentenced ed a justice analysis un ends of court’s district information. of false death on basis for “fresh consid remanded satisfying and eration,” court had noting that the district IV. CONCLUSION Murray, of v. had the benefit Smith not 2661, 527, 106 91 L.Ed.2d 477 U.S. accept nor what I neither understand can plurality’s find (1986). in the join I cannot By repudiat- does in this this Court case. “meritless,” at is ing that Moore’s claim concerning of opinion ing its 15, 1513; Sanders, at 83 S.Ct. 373 U.S. see ignoring Supreme Court’s the writ dismissal. 1077, subject to and therefore at mandate, provides ammunition this Court shifting compo- who claim to those state, undisputed that at It is important is more than of a court sition key evi earliest, Moore with the provided settling disputes. By decid- in rule of law on the him to death used to sentence dence argued grounds on neither ing this case sentencing. appears clear day of It also pre- rehearing, this Court nor briefed of evidence the record that some this from explaining posi- litigants from vents the hearing having a false. Without years ago. five tions taken more than court, I can the district conducted before all, foreclosing unconscionably of Most merits of Moore’s begin not to evaluate petitioner’s of the merits examination F.2d Dugger, 874 Demps v. claim. See claims, standing unchal- leaves this Court J., Cir.1989) (Johnson, 1385, 1393-94 certainly lenged sentence almost a death part). in concurring dissenting part of false information. rendered on the basis receipt However, that the I conceive cannot sentencing can day of evidence on duty”12 by sense of “I constrained feel re meaningful opportunity provide the day ren- from the decision to dissent demanded Gardner. See Gard view dered. ner, 97 S.Ct. at 1207. 430 U.S. at ANDERSON, Judge, Circuit suggested that a Supreme Court has dissenting: may only excused successive indicating law vacat- if the is case justice interest There value. precedential no showing of actual inno ed decision has makes a colorable Wilson, However, purposes and suggest I that the 477 U.S. cence. See Kuhlmann of stare de- underlying the 91 L.Ed.2d values doctrine 106 S.Ct. instant context— implicated defined in the yet has not cisis are (plurality). The Court i.e., of a court of decision colorably “inno banc capital defendant where when Supreme Court by the Dugger appeals is vacated sentence. See cent” of his death — a case of” U.S. -, Adams, “for reconsideration issue as entirely indi unrelated It has which is n. implicated. precedential value alleged sentencing error to which cated that ma- from the Thus, respectfully dissent I development of “precluded the must have take consideration refusal to into jority’s facts resulted admission true [or] words, while values. other Murray, stare decisis ones.” false Smith previous in banc acknowledge that our I (citing Murray v. at 2668 issue is of the writ on the abuse decision Carrier, 78, 114, Jersey, Twining v. New noting attempted to 12. See that Moore 11. It is worth J., (1908) (Harlan, bring in his first 53 L.Ed. 97 Gardner claim second counsel pro dissenting). His se amendment. unsuccessfully peti- first to amend the also tried Gardner claim. tion to include the binding, I nevertheless submit stare decisis values should have been tak- present

en into in our decision. account reason, agree I For this with much of what Judge I opinion is said Part of Kravitch’s Judge opinion. and Part I of Johnson’s join I II (Applying Teague all of Part Petition) Judge to Moore’s Kravitch’s opinion, except join footnote 5. I in full (Abuse Writ) Judge

Part III opinion. Kravitch’s respect Judge opinion, With Johnson’s (Waiver); join (Re- I Part II.A. Part II.B. (Gard- ‍‌‌‌‌​‌​​​‌​​‌​‌​‌‌​​​​‌​‌​‌‌‌‌‌‌​​‌​‌​​​‌‌‌‌‌​‌​‍troactivity Teague); Part II.C.l. ner); Part {Proffitt)-, II.C.2. Part III.A. {Gardner).

{Proffitt)-, and Part III.C. CLARK, Judge, Judge joins Circuit Judge KRAVITCH’Sdissent and in JOHN except SON’S dissent as to Part II.A. (Waiver), {Smith) Part II.C.3 and Part (Estelle Smith).

III.B America, UNITED STATES of Plaintiff-Appellee, PICCINONNA, Julio Defendant-Appellant.

No. 86-5335. Appeals, United States Court of Eleventh Circuit.

Sept.

Case Details

Case Name: William Neal Moore v. Walter Zant

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 3, 1989

Citation: 885 F.2d 1497

Docket Number: 84-8423

Court Abbreviation: 11th Cir.