Moore v. Zant

• Decision Date: 28 September 1989
• Docket Number: No. 84-8423,84-8423
• Citation: 885 F.2d 1497
• Parties: William Neal MOORE, Petitioner-Appellant, v. Walter ZANT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1497

885 F.2d 1497

William Neal MOORE, Petitioner-Appellant, v. Walter ZANT, Respondent-Appellee.

No. 84-8423.

United States Court of Appeals Eleventh Circuit.

Sept. 28, 1989.

Rehearing Denied Nov. 3, 1989.

John Charles Boger, New York City, G. Terry Jackson, Savannah, Ga., Daniel J. Givelber, Boston, Mass., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.

COX, Circuit Judge:

This case originated in this court as an appeal from a federal district court's dismissal of petitioner Moore's second application for federal habeas corpus relief as an abuse of the writ within the meaning of Rule 9(b) of the Rules Governing 28 U.S.C. Sec. 2254 cases. This court, sitting en banc, ultimately reversed in part the district court's finding of abuse, and remanded the case in part. Moore v. Kemp, 824 F.2d 847 (11th Cir.1987). Subsequently, the State filed a petition for a writ of certiorari with the Supreme Court. Following oral argument, this court's en banc opinion was vacated and the case was remanded "for further consideration in light of Teague v. Lane, 489 U.S. ----, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)." Zant v. Moore, 489 U.S. ----, 109 S.Ct. 1518, 103 L.Ed.2d 922 (1989). We affirm the district court's decision.

I.

A. Procedural History

Petitioner, William Neal Moore, murdered Fredger Stapleton in Stapleton's home during the course of an armed robbery on April 2, 1974. ¹ Moore was indicted on May 13, 1974, by a grand jury in Jefferson County, Georgia, for the murder and robbery of Stapleton. On June 4, 1974 On July 17, 1974, the court conducted a bench trial on the penalty issue. After considering the evidence adduced by the prosecution and the defense, including a presentence investigation report which had been prepared by the court's probation officer and introduced into evidence by the prosecutor without objection, the court found that Moore had committed the Stapleton murder during the course of an armed robbery, an aggravating circumstance that rendered Moore subject to the death penalty. See Ga.Code Ann. Sec. 27-2534.1(b)(2) (Harrison 1978) (current version at Ga.Code Ann. Sec. 17-10-30(b)(1) (1982)). Thereafter, the court sentenced Moore to death.

Moore was arraigned in the Superior Court of Jefferson County, waived a trial by jury with respect to both charges, and pled guilty to the charges. Because the State sought the death penalty on the malice murder charge, Moore was entitled, under Georgia law, to have a jury determine whether that penalty, or a sentence of life imprisonment, should be imposed. Moore waived his right to a jury determination, electing, instead, to be sentenced by the court.

Moore's conviction and sentence were affirmed by the Supreme Court of Georgia on direct appeal. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975) (per curiam), and the Supreme Court subsequently denied Moore's petition for a writ of certiorari. Moore v. Georgia, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976). Following the denial of certiorari, Moore petitioned the Superior Court of Jefferson County for a new sentencing proceeding. The court denied his motion, and the Supreme Court of Georgia affirmed. See Moore v. State, 239 Ga. 67, 235 S.E.2d 519 (1977). A petition for a writ of certiorari was denied by the Supreme Court in Moore v. Georgia, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977).

After exhausting all avenues for direct review of his conviction and sentence, Moore initiated collateral proceedings for relief. In early 1978, Moore petitioned the Superior Court of Tattnall County, Georgia, for a writ of habeas corpus, presenting six grounds for relief. Relevant to this appeal was the inclusion of a claim based upon an alleged violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)--that neither Moore nor his attorney was afforded adequate opportunity to review the presentence investigation report prior to the sentencing proceeding. Following an evidentiary hearing, the court rejected his petition, including his Gardner claim, and the Supreme Court of Georgia refused to grant him a certificate of probable cause to appeal.

In November 1978, Moore, represented by James C. Bonner, Jr., filed his first federal petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia, asserting four of the six claims he had presented in his state habeas petition; one of the claims omitted was his Gardner claim. On March 6, 1979, while the petition was pending in the district court, Moore filed a pro se motion to amend his petition to add an ineffective assistance of trial counsel claim.

Thereafter, Bonner, who had represented Moore during the state habeas proceedings, requested and received leave to withdraw as counsel, and the district court appointed H. Diana Hicks as substitute counsel. Hicks immediately moved for leave to amend Moore's petition to present his Gardner claim. In April 1981, the district court denied both the pro se and Hicks motions for leave to amend, see Blake v. Zant, 513 F.Supp. 772, 804-06 (S.D.Ga.1981), granted the writ as to Moore's sentence on the basis that "the penalty of death is cruel and unusual as applied to him in light of the circumstances of the crime and other relevant factors," id. at 803, and denied relief on all of Moore's remaining claims.

The State appealed the district court's judgment granting the writ as to Moore's sentence; Moore cross-appealed, challenging the district court's rulings on the claims that the district court had rejected and the court's refusal to allow him to amend his petition. A panel of this court reversed the district court's grant of relief and affirmed the court's rejection of his remaining challenges to his guilty pleas and death sentence. Moore v. Balkcom, 716 F.2d 1511, 1518-19, 1527 (11th Cir.1983) (on rehearing).

The panel also concluded that the district court did not abuse its discretion in refusing to grant Moore leave to amend his petition. Id. The Supreme Court subsequently denied Moore's petition for a writ of certiorari. Moore v. Balkcom, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

Moore thereafter returned to state court for relief, seeking a writ of habeas corpus from the Superior Court of Butts County, Georgia, on the following grounds: (1) the State violated Moore's Fifth, Sixth, and Fourteenth amendment rights when it failed to advise Moore of his right to remain silent and of his right to counsel prior to or during a presentence interview that was conducted by a probation officer after conviction and before sentencing (a claim based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)); (2) the State denied Moore the right to confront and cross-examine witnesses whose hearsay testimony was contained in the presentence investigation report (a claim based on Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (11th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983)); (3) Moore received ineffective assistance of trial counsel at the sentencing phase of his case; and (4) the death penalty in Georgia was being administered in a racially discriminatory manner. ² The superior court rejected each of these claims without an evidentiary hearing. The court concluded that the ineffective assistance of counsel claim had been litigated fully in Moore's first state habeas proceeding and Moore had offered no reason why it should be relitigated, and Moore had waived his remaining claims by failing to raise them during that initial state proceeding. See Ga.Code Ann. Sec. 9-14-51 (1982). In March 1984, the Supreme Court of Georgia denied Moore's application for a certificate of probable cause to appeal.

Moore then filed his second federal habeas petition, presenting the seven claims he had asserted in his second state habeas petition. Moore alleged that the claims were based on either newly discovered facts (the racially discriminatory application of the death penalty claim) or novel legal principles (all remaining claims) that were not "reasonably available" when he filed his first federal habeas petition. Moore also presented his Gardner claim, which he had attempted to raise in his first federal proceeding in a motion for leave to amend his petition and which he had failed to raise in his second state habeas petition.

In May 1984, the district court dismissed Moore's petition and denied a certificate of probable cause to appeal. With respect to all except one of the claims presented, ³ the court concluded that the delayed presentation of Moore's claims constituted an abuse of the writ under Rule 9(b) of the Rules Governing 28 U.S.C. Sec. 2254 Cases; the court found that the claims were based neither on newly discovered facts nor on newly established constitutional principles, and that Moore offered no lawful reason why he should not have asserted them in his previous petition. Adopting the district court's opinion in full, a divided panel of this court affirmed the decision. Moore v. Zant, 734 F.2d 585 (11th Cir.1984) (per curiam).

On Moore's petition for rehearing, this court, sitting en banc, considered whether Moore's failure to present in his first federal habeas petition five of the claims presented in the second habeas petition--the Estelle, Proffitt, and Gardner claims, the claim that the death penalty was applied in a racially discriminatory manner, and the ineffective assistance of counsel claim--constituted an abuse of the writ justifying summary dismissal. ⁴ A majority of the court was of the opinion that Moore did The State subsequently sought Supreme Court review of this court's en banc...