Moore v. Kemp, No. 84-8423

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON; GODBOLD; TJOFLAT, Circuit Judge, concurring in part and dissenting in part, in which VANCE; HILL, Circuit Judge, DISSENTING, in
Citation824 F.2d 847
PartiesWilliam Neal MOORE, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee.
Decision Date27 July 1987
Docket NumberNo. 84-8423

Page 847

824 F.2d 847
William Neal MOORE, Petitioner-Appellant,
v.
Ralph KEMP, Respondent-Appellee.
No. 84-8423.
United States Court of Appeals,
Eleventh Circuit.
July 27, 1987.

Page 849

John Charles Boger, New York City, 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, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Circuit Judges.

GODBOLD, Circuit Judge:

Petitioner Moore raised in a second federal habeas petition new grounds not raised in his first federal petition and allegedly based upon new principles of law laid down since the first federal petition. The major decision for the en banc court concerns the determination of whether this was an abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases.

Moore was convicted of murder in Georgia after a plea of guilty and sentenced to death. He has filed a first state petition for habeas, followed by a first federal petition, a second state petition, and now the second federal petition. In the present case the district court denied all nine grounds asserted on the basis of abuse of the writ. A divided panel of this court affirmed and adopted the district court opinion. Moore v. Zant, 734 F.2d 585 (11th Cir.1984). Judge Kravitch dissented. 734 F.2d at 601. We set out in the margin a chronology of the key events in this litigation. 1

Five issues are pressed before the en banc court:

(1) The state failed to advise Moore of his right to remain silent or of his right to counsel prior to or during a presentence interview 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 considered in the presentence 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. 1003, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983).

(3) Neither Moore nor his counsel was afforded adequate opportunity to review the presentence report prior to the sentencing

Page 850

proceeding, in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

(4) Ineffectiveness of trial counsel at sentencing phase.

(5) Racially discriminatory application of the death penalty in the State of Georgia. 2

I. The Estelle v. Smith claim

In his second state petition, filed in 1984, Moore raised claim (1) of the list above--the failure to advise him of his right to remain silent and of his right to counsel prior to a presentence interview by a probation officer after conviction and before sentencing. The officer interviewed Moore in connection with the preparation of a presentence report that was introduced by the state at the sentencing phase of Moore's trial.

This claim was based on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which was not decided until three weeks after Moore's first federal petition was decided by the district court. 3 In Smith a court ordered the psychiatric examination of Smith, a Texas state prisoner, while he was in custody. Smith was not advised of his right to remain silent when examined by the psychiatrist nor was he told that any statement he made to the psychiatrist could be used against him at the ensuing sentencing hearing. The Supreme Court held that admission of the interrogating doctor's testimony at the sentencing phase of Smith's trial violated his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel as well. Moore seeks to apply Smith to the presentence interview conducted of him by a probation officer after his conviction but before his sentencing.

The state court denied the Smith claim. First, it held that Moore had previously litigated the issue unsuccessfully. The court did not mean this literally but rather, as its opinion explains, Moore had known the facts concerning his interview by the probation officer and in the first state habeas had raised the issue of opportunity to comment on and explain the report, and therefore, he could have raised the question of failure to advise him of his right to remain silent and his right to counsel; having failed to do so he had "waived the right to do so in this successive habeas petition." Second, the court held that Smith did not establish a new constitutional principle because the Supreme Court had relied on its prior decisions in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

This issue was then presented in the second federal petition, filed immediately after the second state petition was denied, raising for the first time in the federal court a principle of law alleged to be new and to have been laid down since the first federal petition, and giving rise to an abuse of the writ issue under Rule 9(b). Four

Page 851

days after filing, the district court denied the claim on abuse of the writ grounds. 4 We hold that the Smith claim in the second petition was not properly dismissed under Rule 9(b) and remand for reconsideration of this issue on the merits.

Absent deliberate withholding or intentional abandonment of a claim in the first federal petition, the inquiry into whether a petitioner has abused the writ in raising a new law claim must consider the petitioner's conduct and knowledge at the time of the preceding federal application. 5 Rule 9(b) allows dismissal of a claim when "the failure of the petitioner to assert those grounds in the prior petition constituted an abuse of the writ." Accord 28 U.S.C. Sec. 2244. The focus on petitioner's conduct is mandated by the basic purpose of the abuse of the writ doctrine--to enforce the "equitable principle[ ] ... that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Sanders v. U.S., 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). An evaluation of a petitioner's conduct in omitting a claim from his first petition necessarily hinges on the petitioner's awareness of the factual and legal bases of the claim when the first petition was filed. 6 See Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir.1980) (a petitioner may assert in a second petition a claim based on facts or legal theories about which he had no knowledge at the time of his prior habeas petition).

Moore was represented by counsel at the time his first federal habeas corpus petition was filed. He is chargeable with counsel's actual awareness of the factual and legal bases of the claim at the time of the first petition and with the knowledge that would have been possessed by reasonably competent counsel at the time of the first petition. Cf. Daniels v. Blackburn, 763 F.2d 705, 710 (5th Cir.1985) (finding abuse where "[e]ach of the claims that Daniels has asserted in this proceeding is a claim of which competent habeas counsel would have been aware at the time Daniels' prior federal petition was filed in 1980").

We turn next to the state of the law in November 1978--the time of Moore's first federal petition--with respect to the state's failure to advise Moore of his fifth amendment right to remain silent and of his sixth amendment right to counsel prior to or during the presentence interview conducted by a probation officer after conviction and before sentencing. We hold that in November 1978, two and a half years before Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), reasonably competent counsel preparing the first petition could not reasonably have been expected to foresee the fifth and sixth amendment implications of Moore's presentence interview. In particular, counsel is not chargeable with an anticipation of the potential intersection of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) with the sentencing phase of a bifurcated Georgia capital murder trial. As a result, Moore's failure to raise the Miranda claim in his first habeas corpus petition was not an abuse of the writ.

The failure of Moore and counsel in 1978 to anticipate the application of Miranda in the context of the sentencing phase of Georgia's bifurcated capital proceeding is reasonable in light of the lack of clear guidance in 1978 with respect to constitutional protections that might attach to the

Page 852

sentencing phase. Georgia's bifurcated death penalty procedure had been approved by the Supreme Court in 1976. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It was not immediately obvious, however, that the constitutional protections normally accorded to a defendant's merits trial would be applied to sentencing phases in general, or Georgia's in particular, much less that Miranda might be so applied. In 1982, four years after the 1978 date as of which we are assaying what Moore and his counsel reasonably should have foreseen, the Eleventh Circuit noted that "[t]raditionally, sentencing hearings have not been accorded the significance of the guilt-determination portion of the trial." Proffitt v. Wainwright, 685 F.2d 1227, 1252 (11th Cir.1982), modified, 706 F.2d 311, cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983). This court went on to say in Proffitt that in light of recent Supreme Court decisions, "[t]he view, once prevalent, that the procedural requirements applicable to capital sentencing are no more rigorous than those governing noncapital sentencing decisions ... is no longer valid." Id. at 1253 (emphasis added). 7

Further evidence of a lack of clear guidance in 1978 with respect to sentencing phases is revealed by looking at the cases on which the Supreme Court relied in its opinion in...

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24 practice notes
  • Ritter v. Thigpen, Civ. A. No. 87-00854-BH.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • August 25, 1987
    ...and with the knowledge that would have been possessed by reasonably competent counsel at the time of the first petition." Moore v. Kemp, 824 F.2d 847, 851 (11th Cir.1987) (en banc). As this Court noted in its May 11, 1983 order warning petitioner and his counsel to present "each and every g......
  • Moore v. Zant, No. 84-8423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 28, 1989
    ...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 cour......
  • Gunn v. Newsome, No. 87-8287
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 7, 1989
    ...is whether the petitioner reasonably either did not know about it or could not have presented it") (emphasis added); Moore v. Kemp, 824 F.2d 847, 862 (11th Cir.1987) (in banc) (Tjoflat, J., concurring in part and dissenting in part) ("Whether a petitioner's failure to assert his claim in an......
  • Clark, In re, No. S022475
    • United States
    • United States State Supreme Court (California)
    • July 29, 1993
    ...foll. § 2254.) 24 The Eleventh Circuit adapted the "factual innocence" test to penalty phase error in Moore v. Kemp (11th Cir.1987) 824 F.2d 847. The court found guidance in Smith v. Murray (1986) 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434, in which the Supreme Court refused to consider p......
  • Request a trial to view additional results
24 cases
  • Ritter v. Thigpen, Civ. A. No. 87-00854-BH.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • August 25, 1987
    ...and with the knowledge that would have been possessed by reasonably competent counsel at the time of the first petition." Moore v. Kemp, 824 F.2d 847, 851 (11th Cir.1987) (en banc). As this Court noted in its May 11, 1983 order warning petitioner and his counsel to present "each and every g......
  • Moore v. Zant, No. 84-8423
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 28, 1989
    ...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 cour......
  • Gunn v. Newsome, No. 87-8287
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 7, 1989
    ...is whether the petitioner reasonably either did not know about it or could not have presented it") (emphasis added); Moore v. Kemp, 824 F.2d 847, 862 (11th Cir.1987) (in banc) (Tjoflat, J., concurring in part and dissenting in part) ("Whether a petitioner's failure to assert his claim in an......
  • Clark, In re, No. S022475
    • United States
    • United States State Supreme Court (California)
    • July 29, 1993
    ...foll. § 2254.) 24 The Eleventh Circuit adapted the "factual innocence" test to penalty phase error in Moore v. Kemp (11th Cir.1987) 824 F.2d 847. The court found guidance in Smith v. Murray (1986) 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434, in which the Supreme Court refused to consider p......
  • Request a trial to view additional results

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