598 F.2d 439 (5th Cir. 1979), 78-3455, Moore v. United States

Docket Nº:78-3455.
Citation:598 F.2d 439
Party Name:Bobby Lee MOORE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:July 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 439

598 F.2d 439 (5th Cir. 1979)

Bobby Lee MOORE, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 78-3455.

United States Court of Appeals, Fifth Circuit

July 9, 1979

Page 440

Robert G. Wellon, Atlanta, Ga., for petitioner-appellant.

Page 441

William L. Harper, U. S. Atty., Dorothy Y. Kirkley, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The trial judge in this jury case asked the defendant a number of questions, and commented, outside the hearing of the jury, on whether it was advisable for the defendant to offer the testimony of his thirteen year old son. This application for post-conviction relief under 28 U.S.C. § 2255 challenges the court's conduct.

Appellant Moore was convicted of possession of non-tax paid whiskey in violation of 26 U.S.C. § 5604(a)(1) in 1976 after a jury trial. His conviction was affirmed by this court on May 6, 1977. On May 18 Moore petitioned for rehearing, and his newly retained counsel filed an amended brief on Friday, June 10. In the amended brief on petition for rehearing, Moore first raised the claims we confront here. On Monday, June 13, the petition for rehearing was denied without opinion.

Moore contends that the trial judge improperly interjected himself into the trial process, interrupting defense counsel and assuming the burden of questioning the defendant on the stand. These actions, he claims, conveyed to the jury the impression that the judge doubted the defendant's credibility and considered him guilty, thereby denying him the fundamentally fair trial that he is constitutionally guaranteed.

In addition, Moore finds coercion, hence impropriety, in a colloquy between the trial judge and himself regarding his intention to call his thirteen year old son as a corroborative witness, and argues that this denied him the right to present a defense.

The government suggests that, because he raised these claims in the amended brief on petition for rehearing, Moore is now foreclosed by our denial of that petition from urging them again on collateral attack. Although we conclude that the claims are properly before us for consideration, we find no merit in them and accordingly deny the petition for relief.

I. Government's Claim of Preclusion

If issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack. E. g., Buckelew v. United States, 5 Cir. 1978, 575 F.2d 515, 517-18; Vernell v. United States, 5 Cir. 1977, 559 F.2d 963, 964, Cert. denied, 1978, 435 U.S. 1007, 98 S.Ct. 1876, 56 L.Ed.2d 388; Blackwell v. United States, 5 Cir. 1970, 429 F.2d 514, 516. A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns.

We are not, however, convinced that Moore has had his day in court on these issues. Absent exceptional circumstances, this court will not consider new matters raised for the first time in a petition for rehearing. See, e. g., Minute Maid Corp. v. United Foods, Inc., 5 Cir. 1961, 291 F.2d 577, 585-86, Cert. denied, 368 U.S. 928, 82 S.Ct. 364, 7 L.Ed.2d 192; De Witt v. Sorenson, 5 Cir. 1961, 290 F.2d 562. See also Jamestown Farmers Elevator, Inc. v. General Mills, Inc., 8 Cir. 1977, 552 F.2d 1285, 1295-96; Bullock v. Mumford, 1974, 166 U.S.App.D.C. 51, 55, 509 F.2d 384, 388. Cf. United States v. LePatourel, 8 Cir. 1978, 571 F.2d 405, 410-11 (declining to deal with alternative claim raised in petition for rehearing, but remanding to the district court for plenary evidentiary hearing on the matter).

Such a belatedly raised issue may be considered in special situations. As explained in United States v. Sutherland, 5 Cir. 1970, 428 F.2d 1152, 1158, Appeal after remand, 1972, 463 F.2d 641, Cert. denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668, in which the court refused to consider a new issue presented by the government in its petition for rehearing:

The point was not raised in the court below Nor has it been previously raised in

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this court. Having tried and appealed its case on one theory, an unsuccessful party may not then use a petition for rehearing as a device to test a new theory. . . . We certainly do not regard this case as presenting extraordinary circumstances which would justify our considering on petition for rehearing, issues which were not previously presented. (Emphasis in original.)

See also United States v. Levine, 5 Cir. 1977, 551 F.2d 687, 688 (court considered document attached to petition for rehearing, although not part of record on appeal, to conclude that petition for rehearing should be denied).

While we doubt that the present case is one of those extraordinary ones in which a panel would consider on...

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