Moore v. Zant, 84-8423

Citation734 F.2d 585
Decision Date04 June 1984
Docket NumberNo. 84-8423,84-8423
PartiesWilliam Neal MOORE, Petitioner-Appellant, v. Walter D. ZANT, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Tony L. Axam, Atlanta, Ga., Daniel J. Givelber, Boston, Mass., G. Terry Jackson, Savannah, Ga., 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 FAY, VANCE and KRAVITCH, Circuit Judges.


This matter was presented to us upon the appellant's motion for stay of execution, the appellee's motion for expedited review and the appellee's motion to dismiss the appeal. With the execution of appellant scheduled for 12:15 a.m. on May 24, 1984, the court entered a stay in order that Having heard oral argument, reviewing briefs of counsel and studying the record, we affirm the judgment denying relief. Finding ourselves in complete agreement with the evaluation of the issues, the authorities cited as controlling and the conclusions made by the district judge in his Order of May 22, 1984, we adopt the same and append it hereto. The stay previously entered is hereby vacated.

an expedited hearing could be held. This was accomplished during the afternoon of May 24, 1984 in Atlanta, Georgia.









Before the Court is the petition of William Neal Moore for a Writ of Habeas Corpus and an Order staying his execution by the State of Georgia.

I. Background

Petitioner murdered Fredger Stapleton in Stapleton's home during the course of an armed robbery on April 2, 1974. He waived trial by jury in the Superior Court of Jefferson County on June 4, 1974, and pleaded guilty to all charges. Judge McMillan sentenced Moore to death on July 17, 1974. Thereafter, Petitioner embarked on a ten-year trek through the state and federal court systems, seeking relief from his conviction and sentence.

The Georgia Supreme Court affirmed Moore's conviction and sentence in February, 1975, and later denied his petition for a rehearing. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975). The United States Supreme Court also denied review. Moore v. Georgia, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976), petition for reh'g denied, 429 U.S. 873, 97 S.Ct. 190, 50 L.Ed.2d 154 (1976). Petitioner thereafter sought a declaratory judgment in State court, wherein he sought a new sentencing proceeding. Relief was denied and the denial was affirmed by the Georgia Supreme Court. Moore v. State, 239 Ga. 67, 235 S.E.2d 519 (1977), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977).

Petitioner's first trip through the state habeas process resulted in no relief. Moore v. Hopper, CV78-22 (Sup.Ct. Tattnall Cty.1978). On October 17, 1978, the Georgia Supreme Court denied Moore's application for certificate of probable cause to appeal that decision.

Petitioner sought federal habeas relief in this Court in 1978. His first petition was voluntarily dismissed without prejudice after the Georgia Supreme Court granted a stay of execution. The execution was rescheduled for December 4, 1978. Moore again sought relief in this Court on November 22, 1978. At that time, he was again granted a stay of execution to permit this Court's consideration of his legal arguments supporting his grounds for relief.

This Court concluded that Moore's guilty plea was voluntarily, intelligently, and knowingly made. The Court further concluded that he was aware of his right to withdraw his guilty plea when he chose otherwise and that the absence of a transcript of closing arguments at his sentencing hearing did not prevent adequate appellate review.

This Court did conclude, however, that certain constitutional mandates were not observed in the state's appellate review of the sentencing. Moore v. Zant, 513 F.Supp. 772, 818 (S.D.Ga.1981). More specifically, that the imposition of the death penalty was based primarily on the location of the killing--at the victim's home--and not on the presence of the aggravating circumstances (that Moore committed malice murder while in the commission of another capital crime, armed robbery) articulated in the trial judge's order. The Georgia Supreme Court, which was bound by state statute to perform a proportionality review, failed to compare cases involving a killing in the home. Since that court violated its statutory duty to review similar cases by focusing on cases involving different circumstances, this Court undertook an independent proportionality review and concluded that the death penalty "shocked the conscience," warranting habeas relief.

On appeal, the Eleventh Circuit panel reversed this Court's judgment, concluding that an independent proportionality review should not have been conducted. The panel also concluded, however, that the state trial court had committed constitutional error in imposing the death sentence on the basis of nonstatutory aggravating circumstances. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983). The respondent filed a suggestion for rehearing en banc on the latter portion of the panel decision. The petition was granted and the panel decision was withdrawn for en banc consideration.

Citing Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (narrowing function of statutory aggravating factors is achieved when a death sentence is supported by at least one of the statutory aggravating circumstances), the en banc court reversed that portion of the panel decision granting habeas corpus relief. Moore v. Balkcom, 716 F.2d 1511 (11 Cir.1983).

On petition for rehearing and suggestion for rehearing en banc, Moore argued that while the Georgia Supreme Court considered all mitigating circumstances, the sentencing judge limited his consideration to a finding that Moore had made true statements and had cooperated with the authorities. Moore further argued that Judge McMillan "viewed the death sentence as mandatory in this case and did not understand that he possessed discretion to impose a life sentence. Moore v. Balkcom, 722 F.2d 629 (11th Cir.1983). The Eleventh Circuit panel concluded that there was no basis in the record in the case to support either of these arguments. The suggestion for rehearing en banc was denied. Id., at 630.

Once again Moore petitioned the United States Supreme Court for review and once again it was denied. Moore v. Balkcom, --- U.S. ----, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

Moore again instituted state habeas proceedings on May 11, 1984. On May 18, 1984, the Superior Court of Butts County, Georgia, dismissed the petition as successive within the meaning of O.C.G.A. Sec. 9-14-51. The Georgia Supreme Court denied review on the same day. That afternoon, Moore filed for federal habeas relief in this court. Execution is scheduled for May 24, 1984. Consideration of his application for a stay of execution must therefore be made "within the shadow of the date and time set for execution." Stephens v. Kemp, --- U.S. ----, ----, 104 S.Ct. 562, 562, 78 L.Ed.2d 370, 372 (1983) (dissenting opinion).

II. Conclusion

Petitioner has presented nine grounds for relief:

1) The State failed to inform petitioner of his right to remain silent and of his right to counsel prior to a custodial interrogation performed for the purpose of gathering relevant sentencing information.

2) Petitioner was sentenced on the basis of materially false and misleading information contained in the presentence report.

3) The sentencing judge relied in part on a presentence report to which neither petitioner nor his counsel were afforded a meaningful opportunity of review.

4) The false and misleading information in the presentence report violated the mandate of Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), modified, 706 F.2d 311 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983), insofar as the information was not presented in open court, by sworn witnesses subject to cross-examination.

5) The presentence report defects prevented petitioner from obtaining a meaningful appellate review in violation of his Eighth and Fourteenth Amendments.

6) Petitioner's death sentence is excessive and disproportionate under the Eight and Fourteenth Amendments since it was imposed despite his repeated and uncontradicted denial of any intent to kill the victim. See Enmund v. Florida, 458 U.S. 782, 798, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (1982).

7) Petitioner is an indigent black man convicted of the murder of a black man. His sentence and execution therefore will be arbitrary and unconstitutional in light of the State's alleged practice of discriminating on the basis of race of both the victim and the defendant. See Spencer v. Zant, 715 F.2d 1562 (11 Cir.1983), vacated for reh'g en banc, 715 F.2d 1562 (1983); McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga.1984), app. pending, 729 F.2d 1293, No. 84-8176 (to be argued before 11th Cir., en banc, in June, 1984); Ross v. Hopper, 716 F.2d 1528 (11th Cir.1983), vacated for reh'g en banc, 729 F.2d 1293 (11th Cir.1984).

8) Petitioner received ineffective assistance of counsel during the sentencing phase before the trial court.

9) Since the sentencing judge expressly relied on the prospect of appellate review or the United States Supreme Court's invalidation of Georgia's capital statutes, it attached diminished consequences to the sentence of death as imposed and thus took less than full responsibility for the sentencing decision in violation of petitioner's Eighth and Fourteenth Amendment right.

Respondent has pleaded abuse of the writ, shifting to petitioner the burden to prove by a preponderance of the evidence that he has not engaged in that conduct....

To continue reading

Request your trial
7 cases
  • Gunn v. Newsome
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 7 Agosto 1989
    ...intentionally withheld those grounds from the prior petition or that his neglect in not presenting them was inexcusable. Moore v. Zant, 734 F.2d 585, 590 (11th Cir.1984). However, "[i]f the petitioner is able to present some justifiable reason explaining his actions, reasons which make it f......
  • Moore v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 27 Julio 1987
    ...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. Five......
  • Moore v. Zant
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 28 Septiembre 1989
    ...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 ......
  • United States ex rel. Cyburt v. Lane
    • United States
    • U.S. District Court — Northern District of Illinois
    • 18 Octubre 1984
    ...(1968). What constitutes an intervening change of law, however, is not always an easy question to answer. For example, in Moore v. Zant, 734 F.2d 585 (11th Cir.1984), the Eleventh Circuit rejected the argument that Smith, the case Cyburt relies on here, announced a legal theory so novel as ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT