Le Clair v. O'Neil Jurisdictional Statement

    No. 89-

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

WILLIAM NEAL MOORE,
Petitioner,

v.
WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

* DANIEL J. GIVELBER
Northeastern University 
School of Law 
400 Huntington Avenue 
Boston, Massachusetts 02115 
(617) 437-3307
JULIUS L. CHAMBERS 
JOHN CHARLES BOGER 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900
ATTORNEYS FOR RESPONDENT 
WILLIAM NEAL MOORE

* Attorney of Record



STATEMENT OF QUESTIONS PRESENTED
1. Are the lower federal courts free to reject the 

standards for the review of second habeas petitions which have 
been established by Congress and are presently embodied in 28 
U.S.C. § 2244 (b) and Rule 9(b), and to adopt new standards that 
were considered and rejected by Congress?

2. Should a district court —  which has acknowledged that 
uncorrected errors in a presentence report "materially altered 
the [defendant's] profile before the sentencing judge," and 
created the " likelihood that a wrongful sentence was imposed 
based on inadequate information" —  be allowed to consider on 
remand whether to reach the merits of petitioner's 
constitutional claims under the "ends of justice" exception to 
the doctrine of abuse of the writ?

3. Should the rule of Teague v. Lane.__U.S.__, 103 L.Ed.2d
334 (1989), be applied retroactively to bar well-established
constitutional claims that were actively being litigated by 
capital defendants, on collateral review, at the time Teague was 
announced, even if those claims that have previously been 
employed by identically situated capital defendants to secure 
sentencing relief on collateral review?

4. Do the fundamental procedural protections that federal 
courts have extended to the sentencing phase of bifurcated 
capital trials —  rights of notice, of an opportunity to be 
heard, of confrontation and cross-examination, and of freedom 
from compulsion to testify against oneself —  constitute "bedrock 
procedural protections" that will invoke the second exception to 
Teague's general rule of non-retroactivity, at least when there 
is a finding that the violation of these rights created a 
"likelihood that a wrongful sentence was imposed based on 
inadequate information?"

5. Should Teague be applied to capital cases tried and 
appealed prior to Gregg v. Georgia. 428 U.S. 153 (1976)?

6. Should the lower courts faithfully carry out the 
mandates of this Court on remand?



TABLE OF CONTENTS
Page

STATEMENT OF QUESTIONS PRESENTED...........................  i
TABLE OF AUTHORITIES........................................ iv
CITATION TO OPINIONS BELOW.................................  1
JURISDICTION....................... ........................  2
STATUTORY PROVISIONS INVOLVED..............................  2
STATEMENT OF THE CASE....................................... 1

I. Statement Of Facts.................................  2
A. The Crime..................................... 3
B. Moore's Trial................................  4

II. Procedural History...............................  7
A. Initial State And Federal Habeas Proceedings.. 7
B. Moore's Second Federal Habeas Proceeding.....  10
C. The Present Remand...........................  11

1. The Plurality Opinion —  Abuse.Of The Writ 12
2. The Dissenting Opinions —  Teague v. Lane 14

REASONS FOR GRANTING THE WRIT
I. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER 

WHETHER LOWER FEDERAL COURTS ARE FREE, UNDER 
28 U.S.C. §2244 (b) AND RULE 9(b), TO SET 
THEIR OWN STANDARDS ON WHETHER TO ENTERTAIN 
SECOND HABEAS CORPUS PETITIONS THAT PRESENT 
CLAIMS BASED UPON INTERVENING CHANGES IN
CONSTITUTIONAL LAW..............................  16
A. The Plurality's Authority To Craft A New Rule 17
B. The Plurality's Application Of Its New

"Objective Counsel" Standard................  19
1. Moore's Estelle v. Smith Claim.........  2 0
2. Moore's Proffitt v. Wainwright Claim....  22

C. The Plurality' New "Ends Of Justice" Standard. 23
II. THE COURT SHOULD GRANT CERTIORARI TO CLARIFY

THE MEANING AND PROPER APPLICATION OF ITS DECISION 
IN TEAGUE V . LANE ...............................  24

III. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE COURT OF APPEALS VIOLATED THE MANDATE 
OF THIS COURT BY FAILING TO ADDRESS OR DECIDE 
THE QUESTION THAT WAS REMANDED FOR ITS
CONSIDERATION..................................... 3 0

CONCLUSION.................................................. 61

ll



TABLE OF AUTHORITIES
Page

CASES:
Arsenault v. Maaachusetts, 393 U.S. 5 (1968)   29
Arnett v. Ricketts, 665 F. Supp. 1437 (D. Ariz. 1987) ... 27
Autry v. Estelle, 464 U.S. 1301 (1983) .................  18
Baumann v. United States, 692 F.2d 565 (9th Cir. 1982) .. 22
Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981)..... 9
Brandon v. Texas, 453 U.S. 903 (1981) ..................  27
Caldwell v. Mississippi, 472 U.S. 370 (1985)   28,29
Ex parte Chambers, 688 S.W.2d 483 (Tex. Crim. App. 1984)

(en banc) .......................................... 27
Chambers v. Mississippi, 410 U.S. 284 (1973) ...........  29
Ex parte Demouchette, 633 S.W.2d 879 (Tex. Crim. App.

1982) (en banc) .................................... 27
Desist v. United States, 394 U.S. 244 (1969) ...........  26,31
Dobbert v. Strickland, 409 So.2d 439 (Fla. 1981) .......  27
Dugger v. Adams, U.S. , 103 L.Ed.2d 435 (1989) .......  24
Estelle v. Smith, 451 U.S. 200 (1981) .................  passim
Fay v. Noia, 372 U.S. 391 (1963) ..... ..................  20
Fields v. state, 627 S.W.2d 714 (Tex. Crim. App. 1981) .. 27
Furman v. Georgia, 408 U.S. 238 (1972)   30,31,32
Garcia v. Texas, 453 U.S. 902 (1981) ...................  27
Gardner v. Florida, 430 U.S. 349 (1977)   passim
Gholson v. Estelle, 675 F.2d 734 (5th Cir. 1982)   27
Gregg v. Georgia, 428 U.S. 153 (1976) ................  26,30,32
Harper v. Grammer, 654 F. Supp. 515 (D. Neb. 1987) .....  27
Hollis v. Smith, 571 F.2d 685 (2d Cir. 1978) ...........  22
Hopkinson v. Shillinger,__F.2d__(10th Cir., October

24, 1989) (en banc) ...............................  29,30
Johnson v. Zerbst, 304 U.S. 458 (1938)   19
Jones v. Cardwell, 588 F.2d 279 (9th Cir. 1978)   22
Jones v. McCotter, 767 F.2d 101 (5th Cir. 1985),

cert, denied. 474 U.S. 947 (1985)   27
Jurek v. Texas, 428 U.S. 242 (1976)   32
Kuhlmann v. Wilson, 477 U.S. 436 (1986)   14,24
Mackey v. United States, 401 U.S. 667 (1971)............  26,31

iii



McGautha v. California, 402 U.S. 183 (1971) ............  31
Miranda v. Arizona, 384 U.S. 436 (1966) ................  21
Moore v. Balkcom, 465 U.S. 1084 (1984)   10
Moore v. Balkcom, 709 F.2d 1353 (11th Cir. 1983) .......  10
Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), reh1q

denied. 722 F.2d 629 (1983)........................  10
Moore v. Kemp, 824 F.2d 847 (11th Cir. 1987) (en banc) .. 1,12
Moore v. Zant, 734 F.2d 585 (11th Cir. 1984)   11
Moore v. Zant, 885 F.2d 1497 (11th Cir. 1989) (en banc) 11,12,16
Muniz v. Procunier, 760 F.2d 588 (5th Cir. 1985) .......  27
Murray v. Carrier, 477 U.S. 478 (1986) .................  24
In re Oliver, 333 U.S. 257 (1948) ......................  29
Osborn v. Schillinger, 639 F. Supp.610 (D. Wyo. 1986),

aff'd. 861 F. 2d 612 (19th Cir. 1988) ..............  27
Penry v. Lynaugh,__U.S.__, 106 L.Ed.2d 256 (1989) ......  32
People v. Arcega,' 651 P.2d 338, 32 Cal.3d 504 (1981) .... 27
Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982),

modified. 706 F.2d 311 (1983) ................  11,16,22,
27,29,30

Raulerson v. Wainwright, 508 F. Supp. 515 (M.D. Fla. 1980) 27
Rodriguez v. Texas, 453 U.S. 906 (1981) ................  27
Rose v. Lundy, 455 U.S. 509 (1982)......................  20
Sanders v. United States, 373 U.S. 1 (1963) ..........  18,19,20
Sawyer v. Butler, 881 F.2d 1273 (5th Cir. 1989)

(en banc) ........................................ 28,29,30
Simmons v. Texas, 453 U.S. 902 (1981) ..................  27
Smith v. Murray, 477 U.S. 527 (1986)   24
Smith v. Yeager, 393 U.S. 122 (1968) (per curiam) ...... 19
Solem v. Stumes, 465 U.S. 638 (1984)   29
Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1982),

adhered to. 683 F.2d 881 (1982) ...................  27
State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981) ....  27
State V. Sloan, 28 S.C. 433, 298 S.E.2d 92 (1982) .... . . 27
Teague v. Lane,_U.S.__, 103 L.Ed.2d 334 (1989).........  passim
White v. Estelle, 720 F.2d 415 (5th Cir. 1983)   27
Williams v. New York, 337 U.S. 241 (1949)   22
Yates v. Aiken,_U.S.__, 98 L.Ed.2d 546 (1988)   1,33
Zant v. Moore, __ U.S. __, 103 L.Ed.2d 334 (1989).......  12

IV



Zant v. Moore,__U.S.__, 98 L.Ed. 697 (1988)   1
Zant v. Moore, No. 87-1104..............................  2
Zant v. Stephens, 462 U.S. 862 (1983)....................  20,24

STATUTES:
Act of July 8, 1976, Pub. L. No. 94-349, 90 Stat. 822 ... 19,33
Act of Sept. 28, 1976, Pub. L. No. 94-429, 90 Stat. 1335 20,35
28 U.S.C. § 1254 (1)   2
28 U.S.C. § 2244(b)   2,12,17,19
Rule 9(b), Rules Governing Section 2254 Cases .........  passim
Rules Enabling Act, 28 U.S.C. § 2072 (1970) .........  19,33,36

OTHER AUTHORITIES;
Advisory Committee Notes to Rule 9(b) ..................  36
Habeas Corpus: Hearings Before the Subcomm. on Criminal
Justice of the Comm, on the Judiciary. 94th Cong., 2d Sess.
101 (August 5 & 30, 1976) ..............................  19
H.R. Rep. No. 94-1471, 94th Cong., 2d Sess. (1976) .....  20,35
S. Rep. No. 1797, 89th Cong., 2d Sess. (1966) ..........  31
L. Yackle, Postconviction Remedies (1981) ..............  20

v



No. 89-

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

WILLIAM NEAL MOORE,
Petitioner,

v.
WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification 
Center,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

Petitioner William Neal Moore ("Moore") respectfully prays 
that a writ of certiorari issue to review the judgment of the 
United States Court of Appeals for the Eleventh Circuit in this 
case.

CITATIONS TO OPINIONS BELOW
The Court of Appeals originally entered a judgment en banc 

on July 27, 1987, in Moore's favor. That opinion, which is
officially reported at 824 F.2d 847 (11th Cir. 1987), reversed
the judgment of the District Court, denying relief, which had 
been affirmed by a panel of the Court of Appeals. The panel 
opinion is officially reported at 734 F.2d 585 (11th Cir. 1984).

On April 18, 1988, this Court granted certiorari to consider 
questions presented by respondent Walter Zant. Zant v.
Moore. U.S. , 98 L.Ed.2d 697 (1988). Following briefing and
oral argument, on March 29, 1989, the Court entered an order,
unofficially reported at 103 L.Ed.2d 922 (1989), vacating the
judgment of the Court of Appeals and remanding the case for
"further consideration in light of Teague v. Lane. 489 U.S.__
(1989) . "

On September 28, 1989, a plurality of the Court of Appeals, 
in an opinion officially reported at 885 F.2d 1497 (11th Cir.



1989) (en banc), declined to address the Teague issues, instead
revisiting the abuse-of-the-writ issues. The plurality decided 
those issues against Moore and dismissed the habeas petition. A 
copy of that opinion is annexed as Appendix A.

JURISDICTION
The judgment of the Court of Appeals on remand was entered 

on September 28, 1989. A timely petition for rehearing was 
denied on November 2, 1989. A copy of the order denying 
rehearing is annexed as Appendix B. The jurisdiction of this 
Court is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED
This case involves 28 U.S.C. § 2244 (b) , which provides in

pertinent part:
When after an evidentiary hearing on the merits of a 
material factual issue, or after a hearing on the 
merits of an issue of law, a person in custody pursuant 
to the judgment of a State court has been denied by a 
court of the United States . . . release from custody
or other remedy on an application for a writ of habeas 
corpus, a subsequent application for a writ of habeas 
corpus in behalf of such person need not be entertained 
by a court of the United States . . . unless the 
application alleges and is predicated on a factual or 
other ground not adjudicated on the' hearing of the 
earlier application for the writ, and unless the court 
. . . is satisfied that the applicant has not on the
earlier application deliberately withheld the newly 
asserted ground or otherwise abused the writ.
This case also involves Rule 9 (b) of the Rules Governing

Section 2254 Cases in the United States District Courts, which 
provides:

Successive petitions. A second or successive petition 
may be dismissed if the judge finds that it fails to 
allege new or different grounds for relief and the 
prior determination was on the merits or, if new and 
different grounds are alleged, the judge finds that the 
failure of the petitioner to assert those grounds in a 
prior petition constituted an abuse of the writ.

STATEMENT OF THE CASE 
I. Statement Of Facts

In his Brief on Behalf of Respondent, filed in the Court in 
Zant v. Moore. No. 87-1104, Moore has presented an extensive
statement of facts, to which he respectfully refers the Court.



See Brief, 1-7. The present statement will set forth only the 
basic details.1

A. The Crime
Petitioner William Moore was charged in 1974 with the armed 

robbery and murder of Fredger Stapleton, an elderly resident of 
Jefferson County, Georgia. At the time of the crime, William 
Neal Moore was a 22-year-old black soldier stationed at Fort 
Gordon, Georgia. (J.A. 101-02). While undergoing a six-month
hospitalization (id.), Mr. Moore learned that his wife, who had 
refused to come to Ft. Gordon, had fallen in "with another man 
who was rumored to be involved in prostitution, drugs and 
stealing." (J.A. 198-199). After leaving the hospital, Moore
assumed full responsibility for the couple's two-year-old child, 
moving off the base and relinquishing his role as a squad in 
order to care for his infant son. (Id.). Because Moore had 
previously instructed Army paymasters to send all but $50 per 
month of his military pay to his wife, he found himself without 
any funds to cover off-base expenses for himself and the child. 
(J.A. 198-99).

Moore had become acquainted with many local citizens of the 
nearby black community of Wrens, Georgia through another Ft. 
Gordon marine, George Curtis, who grew up in Wrens. (J.A. 211-
212). On the weekend of April 2, 1974, Moore left his son in
other hands and traveled to Wrens with George Curtis, where they 
drank "beer, wine and some liquor" (J.A. 63) and became "very
drunk." (J.A. 200). At some point the two men went to the home 
of George Curtis' uncle, Fredger Stapleton, an elderly man known 
to keep a large sum of money. (J.A. 50-51) . Before the two 
reached the Stapleton house, they returned to Curtis' home. (J.A. 
70-71; 200). Some time later, Moore returned alone.

Moore, very drunk, had just gone into Mr. Stapleton's living 
room when Stapleton awoke and

1 References to the Joint Appendix filed on that petition 
will be indicated by the abbreviation "J.A." followed by the 
number of the page on which the reference may be found.

3



came out of his bedroom with a shotgun . . . [Moore] 
knocked the shotgun to the left, a shot fired from the 
shotgun and at the same time, [Moore] pulled his gun 
out and fired.

(J.A. 50) . Mr. Stapleton was mortally wounded when two bullets 
entered his chest. (J.A. 27). Moore went to Stapleton's 
bedroom, took money from some pants that were lying in the room, 
and departed, carrying Stapleton's shotgun. (J.A. 50). 
Investigators contacted Curtis the following day; he said that 
Moore "must have been the one responsible." (J.A. 60). When 
arrested soon thereafter, Moore confessed his role in the crime 
and expressed regret. (J.A. 49-50).

B. Moore's Trial
Moore retained a local Augusta, Georgia attorney, Hinton 

Pierce, who advised his client to plead guilty. Moore did so. 
(J.A. 5). At Pierce's suggestion, Moore also waived his right to 
a jury trial on the issue of sentence. A sentencing hearing was 
directed for July 17, 1974, before Hon. Walter McMillan. (J.A. 6- 
7) . Judge McMillan directed a local probation officer, J. Clark 
Rachels, to conduct a presentence investigation and prepare a 
report for the July 17, 1974 sentencing hearing. (J.A. 105).

Probation officer Rachels held a lengthy meeting with Moore 
in his jail cell, in the absence of Moore's attorney. (J.A. 106; 
194) . During his interview, Rachels failed to inform Moore that 
he had a right to remain silent, that he had a right to the 
presence of his attorney, and that anything Moore said could be 
used against him during the sentencing hearing. (J.A. 194-95). 
Mr. Moore was not solicited to, and did not, waive any of his 
constitutional rights during this interview. (J.A. 195).

Officer Rachels subsequently prepared a five-page, single­
spaced "case study," (see J.A. 93-104) which was incorporated 
into an overall presentence report, which comprised over 60 pages 
of official documents and reports. The entire report was 
introduced into evidence during the sentencing hearing. The 
"case study" contained numerous errors, which misstated (1) the 
events of the crime; (2) Moore's marital and economic

4



circumstances; (3) the attitudes of the victim’s family; and (4) 
Moore's prior criminal record.

For example, in describing the crime, Rachels suggested 
that Curtis and Moore had attempted to rob Mr. Stapleton on more 
than one occasion, but that "every time, Curtis got drunk." (J.A. 
97-98). The direct evidence indicates, however, that the crime 
was an impulsive action taken after a single evening of heavy 
drinking. Rachels also wrote that "Moore states he . . . shot 
the man four times and during this time, the shotgun went off." 
(J.A. 98) . The record evidence indicates, to the contrary, that 
Stapleton had already hit Moore with the barrel of his shotgun 
and then fired his own shotgun at Moore in the darkened living 
room before Mr. Moore drew his pistol and fired in response. 
(See J.A. 50; 200).

Officer Rachels reported to the Superior Court that Moore 
and his wife "seem to have no marriage problems" that might 
explain or mitigate the crime. (J.A. 102) . In fact, as
indicated, Moore had recently become estranged from his wife, who 
had turned to prostitution and drugs, abandoning their two-year- 
old child to Moore's sole care.

Officer Rachels' report included reputed accounts of the 
attitudes of members of Fredger Stapleton's family who 
vigorously urged that Moore receive a death sentence. Rachels' 
report omitted statements from the many persons in the black 
community of Wrens —  including many Stapleton family members—  
who believed that Moore should not receive a death sentence. (See 
Federal Petition, Appendix K) (sixteen letters and affidavits of 
Jefferson County citizens supporting more lenient treatment of 
Moore). For example, Sara Farmer, Fredger Stapleton's niece,
was one of several Stapleton family relatives who relayed her 
willingness to have testified on Mr. Moore's behalf during the 
sentencing hearing. (Federal Petition, Appendix K, Sara Farmer 
Letter, at 2).

Finally, Officer Rachels' report listed 10 juvenile 
offenses in a portion of his "case study" devoted to Moore's

5



I

criminal record. (J.A. 99) . In fact, Moore had appeared before 
Ohio juvenile courts on four occasions; none of the other six 
alleged offenses had ever resulted in formal charges, much less 
juvenile convictions. (J.A. 196-97).

Moore's sentencing hearing before the Superior Court was 
relatively brief. The State submitted the Rachels presentence 
report including the Rachels "case study," and it offered live 
testimony from a medical examiner and three investigating 
officers. Defense attorney Hinton Pierce, apparently unaware 
even of the presence of the Rachels' "case study" among the mass 
of official documents in the presentence report, presented no 
structured defense in response to the State's sentencing case. 
Instead, Pierce simply informed the court that several members 
Moore's family were present and invited the judge himself "just 
[to] swear them and let them take the stand and let them tell you 
whatever they want to say, any way the Court wishes." (J.A. 64). 
The entire testimony from these witnesses comprises less than 
five pages of the hearing transcript. (J.A. 64-70). Mr. Pierce 
introduced no evidence to correct any of the erroneous 
information in the presentence report.

In pronouncing sentence, the trial judge expressed the 
opinion that Moore had done "everything that a man could do 
after [he was] . . . caught and [did] an honorable thing insofar 
as your true statements made, your cooperation with the 
officials, pleading guilty to the mercy of the court." (J.A. 77). 
He nevertheless imposed a death sentence, setting forth his 
reasons in a sentencing statement. The trial judge relied 
heavily upon his personal opinion that entering another man's 
home at night was "the highest injustice that another can do," 
(J.A. 77-79) , adding that he believed he had no discretion to 
consider whether his imposition of a death sentence constituted 
"evenhanded justice" in Moore's case. (J.A. 78).

Subsequently, the trial judge completed a six-page Tri'al 
Judge's Report to the Supreme Court of Georgia. The report

6



establishes affirmatively that the trial judge relied on several 
inaccurate portions of Rachels' "case study."2

II. Procedural History
A. Initial State and Federal Habeas Proceedings
After his direct appeal had been denied, Moore's case fell 

to James Bonner, an attorney with Georgia's state-funded 
Prisoner Legal Counseling Project. At that time, Mr. Bonner had 
responsibility for "a docket of approximately one hundred and 
fifty (150) cases, of which Mr. Moore's case was one." (J.A. 
189) . Mr. Bonner filed a short, four-page state habeas corpus 
petition in the Superior Court of Tattnall County, asserting five 
constitutional claims. Among them was a claim that the State's 
use of Rachels "case study" violated Mr. Moore's Eighth and 
Fourteenth Amendment rights as interpreted in Gardner v. Florida. 
430 U.S. 349 (1977). (Federal Petition, Appendix B, 15-18? 22-
27) .

At an evidentiary hearing, the parties disagreed on whether 
Moore and his counsel had been allowed any meaningful 
opportunity to review Rachels' report prior to the presentencing

2 For example, the judge indicated in response to a 
question on the report concerning nonstatutory aggravating 
factors that

on another occasion the defendant had entered the house 
of the deceased and [the crime] was not completed. The 
defendant returned again on the date that the robbery 
and murder occurred. In other words, this crime had 
been planned for sometime prior to its execution.

(J.A. 86). In response to a question concerning the defendant's 
"record of prior convictions," the trial judge recited two of the 
10 prior convictions shown by the Rachels report and then 
explicitly stated, "Juvenile violations —  see Probation 
Officer's report." (J.A. 89).

7



hearing.3 (It is undisputed that the Rachels' report was 
tendered to Moore, if at all, only on the day of the hearing.)

The state habeas court denied relief on all claims. In
addressing the Gardner issue, the court simply recited the 
Rachels affidavit and a portion of the sentencing transcript,4 
and concluded without any express findings5 or legal analysis

3 Officer Rachels submitted an affidavit to the state habeas 
court averring that, on the date of the sentencing hearing, he 
furnished a copy of the entire report to Hinton Pierce, who 
allegedly "requested a short recess prior to sentencing, that he 
may have time to review the contents" of the report. (J.A. 106). 
Rachels' affidavit also suggests that Moore was shown his 
statement to police by Mr. Pierce, who asked Moore "if the 
contents of the personal statement contained in the report is 
what [Moore] . . . related to officers." (Id.)

Both Hinton Pierce and Moore sharply disputed Officer 
Rachels' affidavit. Mr. Pierce (who is currently the United 
State Attorney for the Southern District of Georgia), gave live 
testimony before the state habeas court, denying that he ever saw 
the report prior to sentencing:

I'll say this, I have never seen a presentence 
investigation report prior to sentencing in any State 
Court that I can recall. An I'm sure if I had seen it 
in this case, I would have remembered it, because it 
would have been most unusual. . . . The only time I saw 
it aas [sic] in the transcript when I went up to the 
Supreme Court.

(J.A. 108-109) . Moore has averred that he first saw the 
presentence report some two years after he had been sentenced, 
while incarcerated on Death Row at the Georgia State Prison. 
(J.A. 195) .

4 The transcript excerpt reads:
BY MR. THOMPSON [District Attorney]: Now, if Your Honor
please, we have referred on several occasions to a report 
that was made by the Probation Officer, Mr. Clark Rachels, 
which included a Crime Lab report, I would like to submit 
the entire records [sic] as State's Exhibit No. 27 that you 
now hold in your hand. Counsel for the Defendant has 
received the copy of the report so that it will include in 
the record . . . .
BY MR. PIERCE: That is agreeable, Your Honor, and at
the same time, we would like for a copy of the warrants 
to go in also.

(Federal Petition, Appendix B, 20-21).
5 The state court made no findings, for example, on (i) how 

long a time, if any, defense counsel had been given to examine 
the 60-page report, (ii) whether Moore or his counsel ever 
realized that, buried in the larger file of official documents, 
police reports, forensic reports, etc. was the five-page "case 
study" written by Officer Rachels, or (iii) whether Mr. Pierce or 
Billy Moore actually did examine the case study.

8



,  I . W -  *

that Moore's Gardner claim was "without merit." (Federal 
Petition, Appendix B, 20-21).

After the state courts denied relief, Mr. Bonner filed a 
federal petition asserting four federal constitutional claims; 
the Gardner claim was not among them. Moore himself tried to 
amend the petition pro se to add an ineffective assistance claim. 
Several months later, long before any judicial action had been 
taken, Mr. Bonner formally moved to be relieved as Moore's 
counsel. When a new volunteer attorney, Diana Hicks, entered her 
appearance on Moore's behalf, she immediately moved to amend the 
federal petition to add the Gardner claim. In an accompanying 
brief, Ms. Hicks argued that the merits of the Gardner claim had 
not been fully or adeguately adjudicated in the state court, 
since that court had relied principally upon the untested Rachels 
affidavit and since the state court had failed to make full 
factual findings. (Memorandum, dated October 23, 1980, 9-12).

On April 29, 1981, without any further briefing or argument, 
the District Court entered an order granting relief to Moore on 
another claim. Blake v. Zant. 513 F.Supp. 772 (S.D. Ga. 1981).
The District Court granted relief because it concluded that the 
Georgia Supreme Court's review of Moore's death sentence had been 
constitutionally deficient; (i) the Supreme Court had disregarded 
the fact that the trial judge's death sentence has explicitly 
rested, in great measure, upon his idiosyncratic belief that a 
nighttime entry of a home was "the highest injustice a man can 
do," 513 F.Supp. at 811; (ii) the "similar cases" the Georgia 
Supreme Court had relied upon to evaluate the evenhandedness of 
Moore's sentence were inappropriate, since they "reveal[] little, 
if any similarity to [Moore1] crime, id. at 815;6 and (iii) that,

6 The District Court observed that
[t]wenty of the twenty-three cases which were considered [by 
the Georgia Supreme Court] did not resemble the present 
facts sufficiently to provide any useful comparison to the 
sentence imposed here. Of the remaining three, only one 
resulted in a death sentence despite the fact that all were 
substantially more reprehensible than the present case when 
considered from the point of view of both the crime and the 
defendant.

9



in consequence, "even under a 'shock the conscience' test, 
[Moore's] death sentence cannot stand." Id. at 817.

Simultaneously with its grant of full sentencing relief, the 
District Court denied Moore's motion for leave to add his Gardner 
claim; the District Court found "no sound reason for permitting 
further amendment at this late stage of the present case," 
suggesting that to do so "would only promote delay and 
confusion." Id. at 805-806.

On appeal, a panel of the Eleventh Circuit rejected the
ground for relief relied upon by the District Court, but granted 
Billy Moore sentencing relief on another ground —  that the trial 
court had improperly relied upon a nonstatutory aggravating 
circumstance. Moore v. Balkcom. 709 F.2d 1353, 1365-1367 (11th
Cir. 1983).7 Following this Court's decision in Zant v.
Stephens. 462 U.S. 862 (1983), however, the panel withdrew its
initial opinion and substituted another, denying relief. 716
F. 2d 1511 (11th Cir.), reh'a denied. 722 F.2d 629 (1983). This
Court denied certiorari on March 3, 1984. Moore v. Balkcom. 465 
U.S. 1084 (1984).

B. Moore's Second Federal Habeas Proceedings
On May 11, 1984, Mr. Moore filed a second state habeas

corpus petition, asserting not only the Gardner claim which he 
had sought to have adjudicated in his first petition, but also 
several claims based upon constitutional developments that had 
occurred since his first state petition had been filed in 1978. 
Among these new claims were allegations: (i) that Probation
Officer Rachels' interrogation of Mr. Moore violated the 
principles recognized by this Court's 1981 opinion in Estelle v. 
Smith. 451 U.S. 200 (1981); and (ii) that the failure of Georgia
law to provide for confrontation and cross-examination of
presentence report witnesses was contrary to the Eleventh

513 F.Supp. at 816.
7 Moore had cross-appealed from the District Court's

decision- denying his motion to amend his federal petition to add 
the Gardner claim. The panel held that the District Court's
denial had not been an abuse of discretion. 709 F.2d at 1369.

10



Circuit's 1982 opinion in Proffitt v. Wainwrioht. 685 F.2d 1227 
(11th Cir. 1982), modified. 706 F.2d 311 (1983). The Georgia 
courts denied relief, finding that these claims either had been 
or could have been raised in Mr. Moore's first state petition. 
(Federal Petition, Appendix G).

Moore immediately asserted these claims in a second federal 
habeas petition. (J.A. 154-188). Three days later, the District 
Court held a hearing on abuse of the writ. On May 22, 1984, the 
District Court entered a 37-page order dismissing the petition 
on grounds of abuse without reaching the merits of any of Moore's 
claims.

The district court observed in passing, however, that if, as 
Moore alleged, trial counsel Pierce had not seen the Rachels 
presentence report, "then sufficient likelihood would exist for 
finding that a wrongful sentence was imposed based upon 
inadequate information," and that "it is arguable in this case 
that the corrected information 'would . . . have altered the 
sentencing profile presented to the sentencing judge.'" Moore v. 
Zant. 734 F.2d 585, 597 (11th Cir. 1984).

A divided panel of the Court of Appeals initially affirmed 
the dismissal, adopting the opinion of the District Court in 
toto. (Id., 1-34). The full Court of Appeals, however, agreed to 
rehear the case en banc. The case was orally argued on September 
12, 1984. For unexplained reasons, the Court of Appeals waited 
nearly three years, until July 27, 1987, before rendering its 
opinion. When it did act, the full Court of Appeals, by a 7- 
to-5 vote, held that Moore had not abused the writ by failing to 
assert —  in his initial federal habeas petition filed in 1978—  
constitutional claims arising under Estelle v. Smith and 
Proffitt v. Wainwriaht. since the constitutional bases of those 
claims —  which were not announced until three and four years, 
respectively, after Moore first entered federal habeas 
proceedings —  simply had not been available to "reasonably 
competent counsel at the time of the first petition." Moore v. 
Kemp. 824 F.2d at 851; id. at 854.

11



The majority also remanded Moore's constitutional claim 
under Gardner v. Florida. 430 U.S. 349 (1977), to the District 
Court, for a consideration of whether the "ends of justice" 
required the District Court to reach the merits of the claim, 
even if Moore's presentation of the claim in a second federal 
petition were an abuse of the writ. 824 F.2d at 854-857.

C. The Present Remand
As indicated above, this case was briefed and argued before 

the Court during the 1988 Term. The questions presented by the 
State involved the doctrine of abuse of the writ of habeas corpus 
under 28 U.S.C. § 2244 (b) and Rule 9 (b).

The Court did not resolve the issues on which it had 
granted certiorari. Instead, on March 29, 1989, it remanded the 
case "for further consideration in light of Teague v. Lane. 489 
U.S. __, 103 L.Ed.2d 334 (1989).8

1. The Plurality Opinion —  Abuse Of The Writ
On remand, Moore briefed and argued the retroactivity issues 

implicit in Teague. A five-member plurality of the Court,9 
however, chose not to address Teague at all. Instead, noting 
that the effect of this Court's remand order had been to 
"vacatef] our earlier en banc decision, leaving in existence no 
appellate level disposition of the abuse of the writ issues," 
Appendix A, 885 F.2d at 1503, the plurality decided to revisit 
the abuse issues previously resolved in Moore's f a v o r . A f t e r

8 Justice Blackmun dissented from the remand on the ground 
that the State had never raised a retroactivity defense at any 
point, and, therefore, "that defense . . . should be deemed 
waived." 103 L.Ed.2d at 922.

9 The views of the 1989 five-member plurality prevailed 
over the seven contrary votes from the 1987 Court for three 
reasons: one member of the 1987 Court had departed in the 
interval; one judge who initially voted for Moore changed his 
vote, at least on the Gardner claim, see 855 F.2d at 1517 
(Roney, Ch.J., specially concurring); and two judges decided that 
Moore's claims should be dismissed under Teague. See 855 F.2d at 
1514-1517 (Roney, Ch.J., specially concurring); 855 F.2d at 1518 
(Hill, J., concurring).

10 Seven members of the Court of Appeals disagreed, with 
varying degrees of intensity,- with the plurality's decision not 
to respond directly to this Court's mandate. Chief Judge Roney 
remarked: "I think the court should address the question posed

12



cataloguing and weighing various policy considerations and 
administrative concerns, see 885 F.2d at 1506-1507, the plurality 
announced that it would adopt a new rule to govern all second 
petitions that asserted claims based upon intervening changes in 
law:

The rule we adopt is analogous to the "new law" 
standard that the Supreme Court has adopted and applied 
in the procedural default context for establishing 
"cause," and which the district court in this case 
relied on in addressing Moore's abuse of the writ 
claims.

885 F. 2d at 1507.11 Applying its new rule to Moore's case, the 
plurality held that the Court of Appeals' 1987 treatment of 
Moore's "new law" claims had been wrong, that those claims were

by the Supreme Court on remand . . even if [the court] does then
change the prior analysis of the abuse of the writ. . . ." 855
F. 2d at 1514. Judge Hill stated that he "agree[d] with what 
Chief Judge Roney has written. His approach . . .  is clearly the 
better approach in this case, remanded to us by the Supreme Court 
for our reconsideration in the light of Teague." 885 F.2d at 
1518.

Judge Kravitch wrote: "I believe that it is our duty to
follow the Supreme Court's remand order and consider Teague, that 
it is improper for us to revisit issues that we previously 
resolved en banc, and that our prior en banc determination in 
this case was correct." 885 F.2d at 1518. Judge Kravitch also 
noted that the vacatur of the 1987 Court of Appeals judgment was 
procedurally "[t]he only way for the Court to have us consider 
the unique way Teague interacts with the abuse of the writ 
doctrine," and that the Court of Appeals "should . . interpret 
the remand order as meaning what it says: our task on remand is 
to reconsider our prior decision in light of Teague. . . ." 885
F.2d at 1519.

Judge Johnson, joined by four other judges, observed 
that " "[i]nstead of 'reconsider[ing] its opinion in light of 
Teaaue v. Lane.' the plurality ignores that portion of the 
Supreme Court's mandate as surplusage. . . By repudiating its 
1987 opinion concerning abuse of the writ and ignoring the 
Supreme Court's mandate, this Court provides ammunition to those 
who claim that the shifting composition of a court is more 
important than the rule of law in settling disputes." 885 F.2d at 
id. at 1528.

The dissenters sharply criticized this course:
"Neither Congress, nor the Supreme Court, nor this Court 

have altered the standards used to judge abuse of the writ claims 
since this Court's 1987 opinion. No new facts have been put 
before this Court since its 1987 opinion issued. Petitioner is, 
in fact, in precisely the same position before this Court today 
as he was at the time of the 1987 opinion. Moreover, the merits 
of this Court's 1987 opinion have not been rebriefed or reargued. 
No principled reason exists for the 1989 version of the Eleventh 
Circuit to rule differently from the 1987 version of this Court."
885 F.2d at 1523 (Johnson, J., dissenting).

13



abusive, and that Moore's second petition should thus be 
dismissed. Id. 1508-1512.12

Turning next to Moore's Gardner v. Florida claim, the 
plurality overturned the 1987 opinion, which had remanded that 
claim for consideration under the "ends of justice." Although 
the District Court had found, in 1984, that the errors contained 
in the Rachels report presented a "sufficient likelihood . 
for finding that a wrongful sentence was imposed based upon 
inadequate information," the plurality held that such a finding 
would no longer suffice to meet the "ends of justice" test. 
Instead, the plurality fashioned a new, hybrid test by first (i) 
adopting the formula suggested by the plurality in Kuhlmann v. 
Wilson. 477 U.S. 436 (1986) —  that a petitioner must make a
"colorable showing of factual innocence" to invoke the ends of 
justice, 885 F.2d at 1513 —  and (ii) then by radically reshaping 
that formula for capital cases, to require that any capital 
defendant complaining of constitutional error at the sentencing 
phase of his trial must successfully attack and undermine the 
validity of every aggravating circumstance relied upon by the 
State. 885 F.2d 1513.13

12 The plurality held that, "[i]n light of the Supreme 
Court's clear recognition, by 1978, that some of the 
constitutional protections afforded to capital defendants during 
their merits trials applied as well to sentencing proceedings, a 
reasonably competent attorney reasonably could have anticipated 
the eventual application" of the Fifth and Sixth Amendment 
protections ultimately announced in Estelle v. Smith. 885 F.2d at 
1510.

The plurality likewise decided, despite the admittedly 
"unsettled" state of the law during the 1970s on the scope of the 
Sixth Amendment rights to confrontation and cross-examination, 
885 F.2d at 1511, that it was nonetheless "inexcusable" for 
counsel in 1978 not to have "anticipated the extension of Sixth 
Amendment rights, including the right of confrontation, to 
capital sentencing proceedings." 885 F.2d at 1512.

13 As the plurality explained:
"By attacking only that portion of the presentence 
investigation report which dealt with the accuracy of facts 
supporting the finding that nonstatutory aggravating 
circumstances were present, Moore has not successfully 
demonstrated that his sentence would not have been the same 
even if he prevailed on his argument regarding the 
nonstatutory circumstances. . . Without such proof, Moore 
cannot make a "colorable showing of factual innocence" of 
the death sentence imposed in this case. . . .

14



In effect, the plurality held that so long as at least one 
statutory aggravating circumstance remains unaffected, no 
constitutional error —  no matter how egregious the error or 
whether it led to an unwarranted death sentence based upon false 
information —  can ever suffice to permit a District Court to 
reach the merits of the claim.

2. The Dissenting Opinions —  Teacrue v. Lane
Of the seven judges who did address the Teague issues on

remand, five determined that Moore's "new law" claims ought to
be considered on their merits, either (i) because they came
within Teague's second exception —  for those claims involving
"bedrock procedural elements" without which "the likelihood of an
accurate conviction is seriously diminished," 885 F.2d at 1520-
1522, citing Teague v. Lane, supra, 109 S. Ct. at 1075-1077; id.,
1525-1526; or (ii) because Moore's claims should not be
considered as "new law" for Teague purposes. 885 F.2d at 1520.

Two judges disagreed. Chief Judge Roney, with Judge Hill
concurring, rejected the applicability of the second Teague
exception because he viewed Moore's Estelle v. Smith claim as
seeking an expansion of Smith —  since Moore sought to apply
Smith's principle to his own uncounseled interview with Probation
Officer Rachels, not to a psychiatric exam, as in Smith itself.
Roney reasoned that, even if Smith's extension of Fifth Amendment
and Sixth Amendment rights to capital sentencing proceedings had
been a "watershed rule[] of criminal procedure," 885 F.2d 1515,
Moore's further extension was not:

Petitioner would have us extend rEstelle v. Smith! to the 
post-conviction interview by a probation officer. The 
question is not whether the right against self-incrimination 
is fundamental, but whether the application of Miranda to a 
probation officer's interview is of . . .bedrock character.

885 F.2d at 1516.14 

885 F.2d at 1513.
14 Apparently, Chief Judge Roney has read Teague1s second 

exception to require the rejection of any constitutional claim 
based upon "new law" unless the habeas applicant's constitutional 
claim is precisely identical —  on both law and facts —  to that 
announced in the new rule.

15



Turning to Moore's claim, in reliance upon Proffitt v. 
Wainwricrht —  that he was denied the right to confront and cross- 
examine witnesses at the sentencing phase of his trial —  Chief 
Judge Roney suggested that any new legal principles held to be 
applicable only in capital cases could never be "bedrock" 
principles:

If the principle of Proffitt is so bedrock and fundamental, 
why would it not be extended to all criminal defendants? 
Why would not their right of cross-examination apply to all 
witnesses, without qualification? If this court is to 
follow the language of Teague and the obvious intendment of 
words in that opinion, we would deny the retroactive 
application of the principle which Moore wants us to 
establish in his case, absent some further guidance from the 
Supreme Court.

885 F.2d at 1517.
Those judges who addressed Teague did agree on at least one 

thing: their uncertainty concerning Teague1s precise meaning and 
scope, and especially the interrelationship between Teague1s "new 
law" analysis and the appropriate "new law" analysis under abuse 
of the writ doctrine. Judge Kravitch, for example, noted her 
reluctance to "rush in where the Supreme Court has hesitated to 
tread and try to define what is 'new law' for either 
retroactivity or abuse of the writ principles." 885 F.2d at 
1520. Judge Johnson complained that the "crucial intersection of 
retroactivity and abuse of the writ jurisprudence is what the 
plurality should be addressing today." 885 F.2d at 1527. Chief 
Judge Roney noted that "[djifferent judges will, of course, 
interpret Teague in different ways until the contours of that 
decision have been developed by the Supreme Court." 885 F.2d at 
1515.

16



REASONS FOR GRANTING THE WRIT
I.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER 
LOWER FEDERAL COURTS ARE FREE, UNDER 28 U.S.C. § 
2244(b) AND RULE 9(b) TO SET THEIR OWN STANDARDS ON 
WHETHER TO ENTERTAIN SECOND HABEAS CORPUS PETITIONS 
THAT PRESENT CLAIMS BASED UPON INTERVENING CHANGES IN 
CONSTITUTIONAL LAW
The plurality's opinion below addressed a fundamental 

question of habeas corpus law, one which has sharply divided the 
lower federal courts: what standards should govern the 
disposition of second federal habeas petitions raising "new law" 
claims? The Court granted certiorari once —  in this very case, 
twenty-one months ago — to resolve that precise issue. Yet, 
since it remanded the case to the Court of Appeals, without 
opinion, "for further consideration in light of Teague v. Lane," 
the Court ultimately gave no guidance to the lower courts 
concerning the successive petition issues on which it had 
originally granted certiorari.

Nothing better illustrates the continued need for this 
Court's guidance than the plurality's decision on remand. 
Believing itself unconstrained either by any prior decisions of 
this Court or by the manifest will of Congress, the plurality 
proceeded, frankly and independently, to treat this issue as 
wide-open, reweighing for itself the various interests it 
believed to be at stake:

As with the general rules governing the disposition of 
subsequent habeas petitions, the standard that is 
applied to determine whether a change in the law is 
sufficient to excuse the omission of a claim from an 
earlier petition must accommodate two competing, though 
compelling, interest: society's interest in securing 
finality to judgments, and a petitioner's interest in 
securing a full and fair opportunity to vindicate his 
constitutional rights.

885 F.2d at 1506. After determining for itself the relative 
importance of these competing interests, the plurality announced 
that it would adopt a new rule, "analogous to the 'new law' 
standard that the Supreme Court has adopted and applied in the 
procedural default context for establishing 'cause. . . .'" Id. 
at 1507.

17



-L< :. j >-• ■— & -

Under this new rule, Moore's attorneys were condemned for 
their limited prescience —  for their failure to have anticipated 
constitutional changes in 1978 that were not ultimately announced 
until three or four years later; the plurality pronounced that 
these failures constituted "inexcusable neglect" and thus 
instructed the District Court to ignore the underlying merits of 
Moore's claims.

A. The Plurality's Authority To Craft A New Rule
The very first question presented by the plurality's new 

rule —  one the Court of Appeals did not consider at all —  is 
whether the lower court possesses unfettered authority to adopt a 
standard of its own choosing.

As Moore argued at length in his prior submission to this 
Court,15 the federal courts are not free to fashion their own 
standards to govern resolution of "new law" claims. Habeas 
corpus is a statutory remedy, and Congress has, clearly and 
repeatedly, rejected precisely the kind of "claims-preclusion" 
approach adopted by the plurality here. In Autry v. Estelle, 464 
U.S. 1301 (1983), Justice White has written of the desirability
of a new rule that would "require by statute that all federal 
grounds for challenging a conviction or a sentence be presented 
in the first petition for habeas corpus." 4 64 U. S. at 13 03. 
Yet he refused judicially to create such a rule, because 
"historically, res judicata has been inapplicable to habeas 
corpus proceedings, Sanders V. United States, 373 U.S. 1, 7-8 
(1963)," and because "28 U.S.C. § 2244 (a) and 28 U.S.C. § 2254
Rule 9 implicitly recognize the legitimacy of successive 
petitions raising grounds that have not previously been presented 
and adjudicated." 464 U.S. at 1303. The legislative history 
fully vindicates Justice White's position.16

15 See Brief on Behalf of Respondent, 18-30.
16 The House Judiciary Committee which approved § 2244 (b)

in 1966 explained that the purpose of this provision was to 
provide "for a qualified application of res judicata." H.R. Rep. 
No. 1892, at 8. The Senate Report, however, indicated just how 
"limited" an application of res judicata principles was intended 
when it identified, as the target of the revision, those

18



1  d*«V ai

"applications either containing allegations identical . to those 
asserted in a previous application that has been denied, or 
predicated upon grounds obviously well known to them when they 
filed the preceding application." S. Rep. No. 1797, 89th Gong., 
2d Sess. 2 (1966).

Following Congressional enactment in 1966, this Court and 
the lower federal courts applied 28 U.S.C. § 2244 (b), as 
suggested by the Senate report, to preclude only those successive 
applications that were deliberate or in bad faith. For example, 
in Smith v. Yeager. 393 U.S. 122 (1968) (per curiam), the Court 
held that inmate Smith's failure to request an evidentiary 
hearing during his initial federal proceeding did not constitute 
an abuse that would bar a hearing on the same claim in his second 
application. Noting that the standards for obtaining such 
hearings had been relaxed in the interval between the applicant's 
first and second applications, the Court hewed to the 
Congressionally mandated line:

Whatever the standard for waver may be in other 
circumstances, the essential question here is whether 
the petitioner 'deliberately withheld the newly 
asserted ground' in the prior proceeding, or 'otherwise 
abused the writ.' 28 U.S.C. § 2244 (b). . . [Petitioner 
should [not] be placed in a worse position because his 
then counsel asserted that he had a right to an 
evidentiary hearing and then relinquished it. Whatever 
counsel's reasons for this obscure gesture of noblesse 
oblige. we cannot now examine the state of his mind, or 
presume that he intentionally relinquished a known 
right or privilege, Johnson v. Zerbst. 304 U.S. 458,
464, when the right or privilege was of doubtful 
existence at the time of the supposed waiver. In 
short, we conclude that petitioner's failure to demand 
an evidentiary hearing in 1961 . . . constitutes no 
abuse of the writ of habeas corpus.

393 U.S. at 125-126.
In 1976, Congress once again turned its attention to the 

appropriate standard to govern successive federal petitions, this 
time prompted by the Court's submission to Congress —  pursuant 
to the Rules Enabling Act, 28 U.S.C. § 2072 (1970) —  of 
proposed Rules Governing Section 2254 Cases in the United States 
District Courts. See 425 U.S. 1165. Exercising its reserved 
authority under § 2072, Congress did not allow the proposed 
Rules automatically to become law. Instead, in response to sharp 
criticism from some quarters, Congress voted to delay the 
effective date of the proposal. See Act of July 8, 1976, Pub. L. 
No. 94-349, 90 Stat. 822. (1976).

During House hearings in August of 1976, proposed Rule 9(b) 
—  which was designed to address successive habeas petitions —  
became one of the chief foci of attention. Criticism centered on 
a phrase that would have permitted a district court to dismiss a 
second petition asserting "new or different grounds [if] the 
judge f[oun]d that the failure of the petitioner to assert those 
grounds in a prior petition is not excusable." (Emphasis 
added). Despite assurances by principal draftsmen of Rule 9(b), 
that this language was intended to leave the law "fully 
consistent with the applicable statutory provisions as to both 
2254 and 2255 cases and with the Supreme Court decision in 
Sanders v. United States." see Habeas Corpus: Hearings Before 
the Subcomm. on Criminal Justice of the Comm, on the Judiciary. 
94th Cong., 2d Sess. 101 (August 5 & 30, 1976) (statements of 
Judge Webster and Professor LaFave), other witnesses worried 
aloud that this language might constitute "a covert effort to

19



Even if the plurality possessed, legal authority to adopt a
new "objective foreseeability" standard, its extraordinary
application of that standard in Moore's case should be carefully
reviewed by the Court before it is permitted to govern all
subsequent cases in the Eleventh Circuit. The plurality's
rationale for holding that Moore's "new law" claims should have
been foreseen by reasonable counsel is a triumph of judicial
hindsight:

In light of the Supreme Court's clear recognition, by 
1978, that some of the constitutional protections 
afforded to capital defendants during their merits
trials applied as well to sentencing proceedings, a 
reasonably competent attorney reasonably could have

B. The Plurality's Application Of Its New
"Objective Counsel" Standard__________

change existing law by use of the rulemaking process," id. at 23, 
substituting an undefined standard for "the 'deliberate bypass' 
test enunciated in Fav v. Noia." and adopted in Sanders. (Id. , 
24) .

In its ultimate report on the proposed Rules, the Committee 
on the Judiciary recommended changes in only four substantive 
provisions; Rule 9(b) was one of them. As it explained:

The committee believes that the 'not excusable' 
language created a new and undefined standard that gave 
a judge too broad a discretion to dismiss a second or 
successive petition. The 'abuse of writ' standard 
brings rule 9(b) into conformity with existing law. As 
the Supreme Court has noted in reference to successive 
applications for habeas corpus relief and successive §
2255 motions based upon a new ground or a ground not 
previously decided on the merits, 'full consideration 
of the merits of the new application can be avoided 
only if there has been an abuse of the writ or motion 
remedy; and this the Government has the burden of 
pleading.' Sanders v. United States. 373 U.S. 1, 17 
(1963). See also 28 United States Code, section 
2244(b).

H. R. Rep. No. 94-1471, 94th Cong., 2d Sess. (1976). On 
September 28, 1976, Rule 9(b) was enacted into law. Act of 
Sept. 28, 1976, Pub. L. 94-426, 90 Stat. 1335.

In sum, Congress in 1976 firmly rejected language, proposed 
by this Court for inclusion in Rule 9(b), because of 
Congressional apprehension that such language might be 
interpreted (i) to justify a departure from the standards set 
forth in Sanders. and thus (ii) to afford the district courts 
"too broad a discretion to dismiss a second or successive 
petition." As the Court subsequently held in Rose v. Lundy, 455 
U.S. 509, 521 (1982), Congress acted in 1976 to codify the 
principle set forth in Sanders v. United States.

Since 1976, there have been numerous proposals submitted to 
Congress to revise current law, restricting the ability of state 
prisoners to submit successive federal petitions. See generally, 
L. Yackle, Postconviction Remedies § 19 at 92 (1981); id. § 19 , 
26-27 (1986 Cum. Supp.). None have been successful.

20



. in.

anticipated the eventual application of the 
protections established in Miranda Tv. Arizona. 384 U.S.
436 (1966)] to capital sentencing proceedings. Moore's 
failure to make an Estelle-type claim in his first 
federal petition, therefore, is inexcusable.

885 F.2d at 1510.
In essence, the plurality believes it was "inexcusable" for 

Billy Moore's habeas attorney not to have foreseen, in 1978, the 
entire difficult and uncertain road that was trodden by this 
Court during the decade between 1977 and 1987 —  during which
some, though not all, ordinary guilt-phase protections gradually 
were held to be required in capital sentencing proceedings.

However clear and inevitable these major judicial changes 
now appear to the plurality in 1989, more contemporaneous 
evidence demonstrates that they were far from "reasonably 
available" when Moore filed his first federal petition in 
November of 1978.

1. Moore's Estelle v. Smith Claim
In 1978, to our best knowledge, no appellate court in 

America had ever held that either the Fifth or the Sixth 
Amendments would protect a defendant in post-conviction, pre­
sentence encounters with State officials. More specifically, no 
court had ever declared that either the Fifth or Sixth Amendments 
protected defendants in interviews conducted by psychiatrists or 
probation officers solely for the purpose of sentencing.

When Estelle was later announced by this Court in 1981, 
then-Associate Justice Rehnquist expressed serious doubt, in his 
concurring opinion, about whether Fifth Amendment should have 
remaining force once a defendant's guilt had been adjudicated. 
In support of his view, Justice Rehnquist pointed to well- 
established law that had been summarized in a 1978 Second Circuit 
opinion:

The psychiatrists' interrogation of [a defendant] on 
subjects presenting no threat of disclosure of 
prosecutable crimes in the belief that the substance of 
Hollis' responses or the way in which he gave them 
might cast light on what manner of man he was, involved 

• no 'compelled testimonial self-incrimination' even 
though the consequence might be more severe punishment.

21



451 U.S. at 475 (Rehnquist, J. , concurring).17
Even less basis existed in 1978 for perceiving that post­

conviction interviews by probation officers might somehow 
violated the Constitution. The first reported case we have 
located that reflects such a claim was not reported until 
December of 1978, a month after Moore's federal petition had been 
filed. In that case, a panel of the Ninth Circuit (including 
then-circuit Judge Anthony Kennedy), remanded such a claim for 
initial consideration by a district court, describing it as a 
"case of first impression." Jones v. Cardwell. 588 F.2d 279, 281 
(9th Cir. 1978).18

Estelle. in short, marked a profound change in legal 
understanding of the reach of the Fifth and Sixth Amendments. 
For the first time ever, the Court recognized in Estelle that the 
right to counsel and the right to be free of compulsory 
interrogation by State officials protected a defendant even after 
the guilt-determination phase of a trial. In so doing, the Court 
created constitutional rights where none had existed before. The 
Ninth Circuit's 1978 and 1982 decisions in Jones and Baumann. we 
respectfully submit, speak far more accurately about what could

17 As the Second Circuit held in the case upon which 
Justice Rehnguist relied: "The mere fact that interrogation is
the typical method for conducting psychiatric evaluations does 
not significantly differentiate the case from other instances 
where the Supreme Court has held that a defendant may be required 
to cooperate . . . ." Hollis v. Smith. 571 F.2d, 685, 691 (2d
Cir. 1978) .

18 Three years later, in Baumann v. United States, another 
panel of the Ninth Circuit (which also included Circuit Judge 
Kennedy), noted that the then-recent decision in Estelle v. 
Smith had come as an almost total surprise to the federal 
judiciary:

We do not fault the district court for summarily 
rejecting this claim. Its order dismissing the
petition was entered on April 23, 1981, nearly a month 
before the Supreme Court's decision in Estelle. At
construed either the fifth or sixth amendments to
orovide oresentence riahts to convicted defendants at
all similar to those ultimately announced in Estelle •

Baumann v. United States. 692 F.2d 565, 574 (9th Cir.1982).
Moreover, the panel in Baumann went on to uphold the denial of 
relief to petitioner Baumann on the ground that Estelle v. Smith 
did not reach interviews between a non-capital defendant and a 
probation officer.

22



have been expected of "reasonably competent counsel" in 1978 
than could the plurality's well-intentioned effort to reconstruct 
that legal climate a decade later, following a thoroughgoing 
revolution in capital sentencing law.

2. Moore's Proffitt v. Wainwriaht Claim
Likewise, we have found no court which had recognized a 

constitutional right by capital defendants to confront and cross- 
examine sources quoted or relied upon in a pre-sentencing report, 
prior to the Eleventh Circuit's decision in Proffitt v. 
Wainwriaht in 1982. Proffitt for the first time placed 
significant new qualifications on the previously routine use of 
pre-sentencing reports. Over thirty years earlier, this Court in 
Williams v. New York. 337 U.S. 241, 245-251 (1949), had squarely 
held that a defendant's rights to cross-examination and 
confrontation did not extend to presentence reports, and lower 
courts had uniformly adhered to that holding.

In its 1977 decision in Gardner v. Florida. 430 U.S. 349 
(1977), the Court stopped well short of suggesting that a 
defendant could insist on confronting parties who were quoted in 
a presentence report; as the Court of Appeals observed in 
Proffitt. "[t]he holding in Gardner, narrowly viewed, simply 
prohibits the use of 'secret information'; the Court did not in 
that case address the scope of the capital defendant's procedural 
rights in attempting to rebut information that has openly been 
presented to the sentencing tribunal." 685 F.2d at 1254. It is 
in light of this history that the Proffitt court concluded that 
it was addressing "an issue of first impression in this Circuit." 
685 F.2d at 1253.

Under these circumstances, Moore's failure to include the 
Proffitt claim in his initial federal petition simply was not 
"foreseeable" in 1978, under the majority's objective, 
"reasonable counsel" standard.

23



3. The Plurality's New "Ends Of Justice" Standard
Most radical of all is the plurality's application of its 

new "ends of justice" test to bar consideration of the merits of 
Moore's Gardner claim. This new test wholly ignores the 
equitable underpinnings of the Great Writ. While the Court has 
not finally determined when a capital defendant will be deemed 
"colorably innocent" for sentencing purposes, see Dugger v.
Adams. __U.S.__, 103 L.Ed.2d 435 (1989), it has addressed related
"ends of justice" principles in Kuhlmann v. Wilson. Smith v. 
Murray and Murray v. Carrier. The teaching of those cases 
appears to be, at a minimum, that a district court should 
entertain constitutional claims accompanied by a colorable 
showing that the asserted violations have produced a wrongful
result — whether the conviction of one who was factually
innocent, Kuhlmann v. Wilson. 477 U.S. at 454 (plurality
opinion); Murray v. Carrier, 477 U.S. 478, 496 (1986), or the
imposition of a death sentence based upon a constitutional error 
"which precluded the development of true facts [] or resulted in 
the admission of false ones." Smith v. Murray. 477 U.S. 527, 539 
(1986).19

Here, although the District Court twice noted that Moore's 
death sentence was likely to have resulted from the faulty 
information contained in the Rachels "case study" —  a finding 
ample to meet the most stringent reading of Kuhlmann or Smith v. 
Murray —  that finding was not sufficient to satisfy the 
plurality. Since at least one statutory aggravating circumstance 
remained unimpaired by these factual and constitutional errors, 
the plurality reasoned, Moore remained technically death-eligible 
under Georgia law, and therefore, its radical new "ends of 
justice" test could not be met. 885 F.2d at 1513.20

19 Federal district courts should, under those 
circumstances, reach the merits even if, as in Smith and Murray, 
the petitioner had failed to raise the claim properly in the 
state courts or, as in Kuhlmann the federal court had previously 
addressed the claim on the merits.

20 The plurality's analysis completely misunderstands . the 
role of aggravating circumstances in the Georgia capital 
sentencing system, which this Court explored at length in Zant v.

24



Surely equitable concerns, not the plurality's ironclad 
rule of forfeiture, lie at the heart of any proper "ends of 
justice" analysis:

Since Moore's claim, if true, goes to the very 
integrity of the trial, court's fact-finding, his. 
second petition may be excusable in the interests of 
justice. I can imagine no more compelling excuse than 
that presented by a petitioner allegedly sentenced to 
death on the basis of false information.

885 F.2d at 1528 (Johnson, J., dissenting).
* * * * * * * * * * * *
The Court should grant certiorari to consider the 

important, unresolved questions concerning the law of second 
habeas petitions that are presented by this case.

II
THE COURT SHOULD GRANT CERTIORARI TO CLARIFY THE
MEANING AND PROPER APPLICATION OF ITS DECISION IN
TEAGUE V. LANE
This case presents three significant questions raised by the 

Court's recent opinion in Teague v. Lane. A grant of certiorari 
to answer these questions would materially aid lower courts in 
applying Teague to habeas applicants, especially in capital 
cases.

The first question is whether the rule of Teague v. Lane 
should itself be applied retroactively to bar claims, even by 
those capital defendants who seek relief under doctrines longer 
applied to invalidate the capital sentences of other habeas

Stephens. 462 U.S. 862 (1983). Under Georgia law,
unlike some other States, the jury is not instructed to 
give any special weight to any aggravating 
circumstance, to consider multiple aggravating 
circumstances any more significant than a single such 
circumstance, or to balance aggravating against 
mitigating circumstances pursuant to any special 
standard. Thus, in Georgia, the finding of an 
aggravating circumstance does not play any role in 
guiding the sentencing body in the exercise of its 
discretion, apart from its function of narrowing the 
class of persons convicted of murder who are eligible 
for the death penalty.

462 U.S. at 873-874. Under such a system, the presence or 
absence of a constitutionally unimpaired aggravating circumstance 
simply provides no adequate foundation upon which to determine, 
either legally or logically, whether a death sentence would have 
been imposed.

25



petitioners —  identically situated except that their relief was 
secured prior to this Court's March, 1989 decision in Teague.

The second question requires the Court to give concrete 
meaning, in the capital sentencing context, to its second 
exception to the Teague rule, which exempts from the general rule 
of non-retroactivity "new law" claims, founded upon "bedrock 
constitutional principles," which imperil the reliability of a 
verdict.

The third question is whether Teague v. Lane applies to 
habeas petitioners whose capital sentences were imposed and 
affirmed prior to Gregg v. Georgia was announced in 1976 —  at a 
time when, quite simply, no state court could or did have any 
basis for knowing the contours of the "established constitutional 
standards" which it was supposed to be applying faithfully.

A. The Retroactivity of Teague v. Lane
In Teague. the Court identified a problem and developed a 

solution. The problem was the perceived illegitimacy of a 
retroactivity doctrine which treated similarly situated 
defendants differently and which undercut concerns about the 
finality of state criminal convictions. The solution was to 
adopt Justice Harlan's view —  articulated in dissenting and 
concurring opinions in Desist v. United States. 394 U.S. 244, 256 
(1969) and Mackey v. United States. 401 U.S. 667, 675 (1971)—  
that newly articulated constitutional doctrine should be 
available to all criminal defendants whose cases were still on 
direct review, but not to those whose cases were on collateral 
review, subject only to two exceptions.

Since Teague involved a request to establish a new 
constitutional doctrine on habeas corpus, the rule developed 
there appeared to serve both the interest in evenhandedness and 
the interest in finality.

However, because it was not presented in Teague. the Court 
did not address the question of how lower courts must approach 
situations in which Teague's proposed solution creates one of the

26



very difficulties which it was designed to resolve. That 
situation arises here, where Billy Moore seeks the benefit of 
established constitutional rules which have been applied 
routinely since 1977 and 1981, respectively, to grant relief—  
on collateral review —  to other capital defendants. Those 
capital defendants differ from Moore in only one, fortuitous 
respect: their cases were plucked from the stream of habeas
cases and resolved by federal courts prior to this Court's 
decision in Teague v. Lane.21

It should be clear that to apply Teague retroactively, 
denying relief to Moore when it has been granted to other habeas 
applicants, similarly situated, creates one of the very evils 
which the Teague rule was designed to eliminate. Moore's
inability to claim the benefit of Smith, Proffitt, or Gardner, 
moreover, is largely attributable to factors over which he had 
little or no control. For example, after briefing and argument 
on these issues before the Eleventh Circuit in 1984, Moore's case 
sat awaiting decision for three years before a decision was

21 These cases include, with respect to violations of 
Gardner v. Florida, 430 U.S. 349 (1977), the following: Dobbert 
v. Strickland. 409 So.2d 439 (Fla. 1981) (conviction final in 
1976) ; Gholson v. Estelle. 675 F.2d 734 (5th Cir. 1982) ; Osborn 
v. Schillinger. 639 F. Supp. 610 (D. Wyo.’ 1986), aff'd, 861 F.2d 
612 (10th Cir. 1988) ; Harper v. Grammer. 654 F. Supp. 515 (D. 
Neb. 1987); Raulerson v. Wainwright. 508 F. Supp. 381 (M.D. Fla. 
1980). Gholson, whose conviction and sentence had become final 
in 1976, subsequently received a life sentence.

With respect to violations of Estelle v. Smith. 451 U.S. 454
(1981) , relief has already been granted in other cases including 
Gholson (and Ross) v. Estelle. 675 F.2d 734, 739-743 (5th Cir. 
1983) (conviction final in 1976); Battie v. Estelle. 655 F.2d 692 
(5th Cir. 1981) (conviction final in 1980); Jones v. McCotter. 
767 F.2d 101 (5th Cir. 1985), cert, denied. 474 U.S. 947 (1985); 
Muniz v. Procunier. 760 F.2d 588 (5th Cir. 1985) ; White v. 
Estelle. 720 F.2d 415 (5th Cir. 1983); Spivey v. Zant. 661 F.2d 
464, 473-476 (5th Cir. Unit B 1982), adhered to 683 F.2d 881
(1982) ; Arnett v. Ricketts. 665 F. Supp. 1437 (D. Ariz. 1987). A 
considerable number of capital defendants whose convictions have 
been reversed under Estelle have received life sentences. These 
include the capital prisoners involved in the following bases, 
among others: Brandon v. Texas. 453 U.S. 903 (1981); Garcia v. 
Texas. 453 U.S. 902 (1981) ; Simmons v. Texas. 453 U.S. 902 
(1981) ; Rodriguez v. Texas. 453 U.S. 906 (1981) ; Gholson v. 
Estelle. supra; People v. Arcega. 651 P.2d 338, 32 Cal.3rd 504 
(1981); State v. Osborn. 102 Idaho 405, 631 P.2d 187 (1981); 
State v. Sloan. 28 S.C. 433, 298 S.E.2d 92 (1982); Ex parte 
Chambers. 688 S.W.2d 483 (Tex. Crim. App. 1984) (en banc); Ex 
parte Demouchette. 633 S.W.2d 879 (Tex. Crim. App. 1982) (en 
banc); Fields v. State. 627 S.W.2d 714 (Tex. Crim. App. 1982).

27



rendered in his favor. Had that judicial delay not occurred, the 
merits of Moore's Smith and Proffitt claims likely would have 
been resolved long before Teague was announced by this Court. 
(As noted earlier, moreover, Mr. Moore had sought to add a 
Gardner claim to his initial federal petition in October of 1980, 
eight-and-one-half years before Teague.)

The Fifth and Tenth Circuits, in en banc opinions, have
decided, though not without misgivings, that Teague should be 
applied retroactively to the class of habeas applicants in
Moore's position. In Sawyer v. Butler. 881 F.2d 1273 (5th Cir. 
1989) (en banc), the dissenters argued strongly that the Fifth 
Circuit majority should not have dismissed a claim under
Caldwell v̂. Mississippi. 472 U.S. 370 (1985), raised by a
petitioner whose conviction had become final prior to the Court's 
1984 Caldwell decision:

If any case should be considered as having established 
a new rule not retroactively applicable to habeas 
petitioners whose convictions have become final, it is 
Teague itself. Had the majority decided Sawyer's case 
on the basis of the Supreme Court's decisions in 
existence when Sawyer's case was argued and submitted 
to this court, the majority would have granted him a 
new sentencing hearing. The majority instead reaches 
out to an opinion rendered 16 months after submission 
of Sawyer's case and 8 1/2 years after Sawyer's trial 
to find a reason to deny him constitutional protection.

881 F. 2d at 1305 (King,' J. , dissenting).
The Tenth Circuit has acknowledged that, because it has

decided to apply Teague retroactively, "a fortuity of timing
placed previous habeas petitioners, both here and elsewhere, in a
different position than Hopkinson, [since] nonretroactivity does
not apply to Teague itself." (WL, p. 11 of 37)).

The Court should grant certiorari to resolve the tension
between Teague's aspiration and its unintended consequence in the
situation presented by the' instant case.

B. The Meaning Of Teague's Second Exception 
The Fifth, Tenth and Eleven Circuits have already announced 

conflicting readings of Teague's second exception —  which 
' permits consideration on collateral review of claims predicated 
on fundamental new procedures "without which the likelihood of an

28



accurate conviction is seriously diminished." 109 S.Ct. at 1076-
77. A number of features of this new standard have caused 
confusion including (i) "the newness of the amalgam of the second 
proviso as well as its uncertain precedential footing," Sawyer v. 
Butler. 881 F.2d at 1292; and (ii) the "uncertainty about 
Teague's standard for sorting the bedrock from the host of other 
rules calculated to enhance the efficiency and fairness of a 
trial." (Id.)22

The present case provides a clear opportunity to clarify 
how Teague's concern for accuracy should manifest itself in the 
capital sentencing context. Moore's claims under Estelle v. 
Smith. Gardner v. Florida and Proffitt v. Wainwright each go to 
the heart of the adjudicatory process. Each involves a bedrock 
constitutional protection which this Court has consistently 
applied retroactively.23 The significance of Gardner. Smith. and 
Proffitt, when announced in 1977, 1981, and 1982, lay not in the 
novelty of their procedures but in the federal judiciary's bold

22 In attempting to apply this exception to the Court's 
1984 decision in Caldwell v. Mississippi, the Fifth and Tenth 
Circuits have arrived at diametrically opposed results. In
Hookinson v. Shillinger.__ F.2d __(10th Cir., October 24, 1989)
(en banc), the Tenth Circuit has unanimously concluded that 
Caldwell does fall within the second exception, since "it strikes 
us as bedrock procedure that a jury must understand that it, not 
an appellate court, carries the responsibility for imposing the 
death penalty. __F.2d at__ (pp. 12, 14 of 37 in WestLaw).

On the other hand, the Fifth Circuit, in Sawyer v. Butler, 
has concluded that Caldwell claims "ha[ve] neither the 
overwhelming influence upon accuracy nor the intimate connection 
with factual innocence demanded by the second Teague proviso." 
881 F.2d at 1294. Conceding that the violation in issue 
"implicates both the integrity of [the sentencing procedure] and 
the accuracy of the determination," 881 F.2d at 1294, the court's 
rejection of Sawyer's claim apparently reflects its understanding 
that Eighth Amendment violations —  as opposed to Fourteenth 
Amendment Due Process infringements —  do not meet the Teague 
second exception tests.

23' E.g .. Solem v. Stumes. 465 U.S. 638, 645 (1984), citing 
Arsenault v. Massachusetts. 393 U.S. 5 (1968) (use at trial of a 
plea made at an uncounseled preliminary hearing is a denial of 
fundamental right which goes to "the heart of the truthfinding 
function," which the Supreme Court has "consistently held to be 
retroactive"); In re Oliver. 333 U.S. 257, 273 (1948) 
(reasonable notice, the right to be heard, and the right to 
cross-examine witnesses are among the fundamental rights of due 
process); Chambers v. Mississippi. 410 U.S. 284 (1973) (cross- 
examination is "an essential and fundamental requirement for the 
kind of fair trial which is this country's constitutional goal.")

29



extension of those procedures to the still-evolving state capital 
sentencing context. They were not new constitutional subtleties, 
which could enhance but were not indispensable to due process. 
Rather, they were the most basic of protections. The combined 
effect of Gardner. Smith, and Proffitt was to reguire that state 
capital sentencing proceedings honor essential procedural ground 
rules —  of notice, the right to be heard, the right to confront 
and cross-examine, the right not to be compelled to testify 
against oneself, the right to assistance of counsel —  which are 
the hallmarks of the Anglo-American adversary system.

The record in this case reveals, moreover, that the absence 
of these fundamentals of due process led directly to the 
inaccurate sentencing information relied upon by the trial judge 
who imposed Moore's death sentence. Unlike Sawyer. Hopkinson. 
and even Teague itself, the errors which plagued the Rachels' 
"case study,"affected the accuracy of the sentencer's 
conclusions about the facts of the crime, the circumstances of 
the defendant, and the sentiments of the victim's community. 
Together, the District Court concluded, they create "sufficient 
likelihood . . . for a finding that a wrongful sentence was 
imposed based upon inadequate information." They thus "skew[ed] 
the actual evidence crucial to the trier of fact's disposition of 
the case" and had precisely the sort of "overwhelming influence
upon accuracy" which suffice to meet even the most stringent test
yet proposed for Teague's second exception. See Sawyer v. 
Butler, supra. 881 F.2d at 1294.

Moore's claims, in short, should be held to come within both 
the letter and spirit of Teague's second exception.

C. The Applicability Of Teague To Pre-Gregg Trials
Moore is one of a small number of death-sentenced inmates in

this country, still on Death Row, who was convicted and sentenced
to death prior to the Court's decision in Gregg v. Georgia. 428 
U.S. 153 (1976). At the time of his conviction and direct 
appeal, it was' uncertain whether states could constitutionally 
impose the sentence of death. Furman v. Georgia. 408 U.S. 238

30



(1972). This Court's post-Gregg insistence upon the defendant's 
right to present and the sentencer's unqualified duty to consider 
mitigating circumstances was neither established, nor, given the 
seeming rejection of the reasoning of McGautha v. California. 402 
U.S. 183 (1971), even apparent at that time.24

In Teague. the plurality adopted the view of habeas corpus 
articulated by Justice Harlan in his dissent and concurrence in 
Desist v. United States and Mackey v. United States. As noted in 
the plurality opinion in Teague. Justice Harlan emphasized the 
role of habeas corpus as a deterrent, designed to serve as 
"necessary additional incentive for trial and appellate courts 
throughout the land to conduct their proceedings in a manner 
consistent with established constitutional standards.'" 489 U.S.
a t -- , 109 S.Ct. at 1072, quoting from Desist v. United States.
394 U.S. 144, 262-263, 89 S.Ct. 1030, 1040-1041, 22 L.Ed.2d 248 
(1969) (Harlan, J., dissenting). However, in those very rare 
situations such as prevailed in 1974 when there are no 
"established constitutional standards," there is no force to the 
notion that habeas will have served its high office by 
encouraging compliance with such standards. Furman did more than 
announce a sea change in how capital cases were to be handled; it 
questioned the very legitimacy of any capital proceeding.

The instant case, then, provides this Court with the 
opportunity to clarify the extent to which the Harlan view of 
habeas corpus guides the application of the Teague rule regarding 
retroactivity in habeas. This issue was adverted to last term in

24 At Moore's sentencing the trial judge indicated that 
the constitutionality of capital punishment was an open question, 
and suggested that it might be only those statutes which called 
for the mandatory application of death upon proof of a capital 
offense which would ultimately pass constitutional muster. After 
stating that he had "many, many reservations about whether there 
will be an execution by government authorities in this country 
again" and observing that he was prohibited from considering 
whether or not Moore's sentence represented "evenhanded justice," 
the sentencing judge stated that if the Supreme Court were to 
require mandatory as opposed to discretionary sentencing, they 
would require it when an individual is robbed and killed in his 
home and "[t]hat justifies me in the finding that I made." J.A., 
Kemp v. Moore. No. 87-1104, 77-79. At the time, of course, a 
majority of state legislatures had read Furman this way and had 
adopted mandatory, as opposed to discretionary, capital- 
sentencing.

31



I

Penrv v ♦ Lvnauah.__U.S.__, 106 L.Ed.2d 256 (1989), in the context
of whether Penry's claim constituted "new law." The Court 
clarified the reach and meaning of Jurek v. Texas. 428 U.S. 262 
(1976), by holding that, under the circumstances of Penry's case, 
the Texas sentencing scheme violated his constitutional rights 
since it deprived his jury of the ability to consider fully the 
mitigating circumstances presented by Penry's mental retardation. 
The Court did so in the face of a vigorous dissent by Justice 
Scalia, insisting that the Harlan view meant that any ruling 
relieving "palpable uncertainty" about the reach of a particular 
doctrine should be considered "new law" for Teague analysis. 109 
S.Ct. 2934, 2964.

Here, the problem is not merely "palpable uncertainty" about 
the reach of a particular doctrine but rather total uncertainty 
about even the most rudimentary elements of Eighth Amendment 
capital sentencing analysis. While it may appear paradoxical to 
suggest that the Teague bar is equally inapplicable to what can 
be fairly termed "no law" cases as it is to "old law" cases, the 
paradox is more apparent than real. In both situations, the 
balance of finality and equity concerns which inform 
retroactivity analysis —  e.g .. the impact on law enforcement, 
the degree of reliance on then existing law, and the purpose of 
the new rule —  resolve in favor of retroactivity. As the 
remarks of the trial judge in the instant case testify, in 1974 
it was impossible to know what legal regime would prevail in the 
capital punishment area. This case permits the Court to 
consider the application of Teague to capital cases which became 
final in the legal netherworld which prevailed between Furman and 
Gregg.

* * * * * * * * * * * *
The Court should grant certiorari to address the important 

Teague questions presented here.

32



III.
THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER 
THE COURT OF APPEALS VIOLATED THE MANDATE OF THIS COURT 
BY FAILING TO ADDRESS AND DECIDE THE QUESTION WHICH WAS 
REMANDED FOR ITS CONSIDERATION
Perhaps the most extraordinary aspect of this case is not 

its apparent arbitrariness —  the reversal, by one en banc Court, 
of a judgment rendered, in the same case, on the same issue, by 
the same en banc Court two years earlier —  but the fact that the 
second opinion issued despite the explicit terms of this Court's 
remand, which directed the Court of Appeals to address a 
different issue altogether.

This Court has occasionally been obliged to remind state 
courts that its instructions on remand are to be taken
seriously. See, e. g . . Yates v. Aiken. __ U.S. __, 98 L.Ed.2d 546,
552 (1988) ("Our mandate contemplated that the state court would
consider whether . . . petitioner's conviction could stand in the 
light of Francis. Since the state court did not decide that 
question, we shall do so.")

Here, the plurality's precipitous refusal to follow the 
Court's instructions left at least one important question under 
Teague —  perhaps the very question that prompted the remand—  
unaddressed by any member of the majority. As Judge Johnson put 
it:

Th[e] crucial intersection of retroactivity and abuse 
of the writ jurisprudence is what the plurality should 
be addressing today. It is a question of great 
importance, the answer to which might finally provide 
some definition to our vague notions of what 
constitutes "new law" in various contexts.

885 F. 2d at 1527. Although the dissenters did briefly discuss
this issue, see 885 F.2d at 1520 (Kravitch, J., dissenting); 885
F. 2d at 1527-1528 (Johnson, J. , dissenting), their disagreement
leaves the circuit with no guidance at all on whether "new law"
claims should be viewed differently for abuse-of-the-writ and
for Teague purposes.

Since, as in Yates. the lower federal court here failed to 
follow the Court's mandate and address any of the important

33



Teague issues in this case, the Court itself should now grant 
certiorari to do so.

CONCLUSION
The petition for certiorari should be granted.

Dated: December 18, 1989 Respectfully submitted,

* DANIEL J. GIVELBER
Northeastern University 
School of Law 
400 Huntington Avenue 
Boston, Massachusetts 02115 
(617) 437-3307
JULIUS L. CHAMBERS 
JOHN CHARLES BOGER 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900
ATTORNEYS FOR RESPONDENT 
WILLIAM NEAL MOORE

* Attorney of Record

34



APPENDIX A



1497MOORE v. ZANT
Cite u  885 FJd 1497

Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 
2575, 65 L.Ed.2d 653 (1980); Chicano Po­
lice Officers Ass’n v. Stover, 624 F.2d 127,
131 (10th Cir.1980).

Defendants’ remaining arguments for re­
versing the district court’s two orders for 
attorneys’ fees and costs are also without 
merit. Some, so far as we can tell, were 
not urged by defendants in their post-order 
requests to amend. In their post-order re­
quests to amend both orders, the defen­
dants did not challenge the district court s 
computation, nor did they suggest that 
plaintiffs were being awarded attorneys’ 
fees to resist motions of the defendants 
which have not yet been heard.

[3] Finally, the fact that the defendants 
intended to appeal the district court s deni­
al of the motion to vacate did not preclude 
the district court from awarding attorneys’ 
fees for services rendered in resisting the 
motion to vacate. This argument is some­
what mooted since we have this date af­
firmed the district court’s order denying 
defendants’ motion to vacate. The award 
of attorneys’ fees in the instant case was 
not premature.

In sum, the district court did not abuse 
its discretion, but gave the matter careful 
consideration. The district court did not 
give the plaintiffs’ attorneys carte blanche, 
as is suggested by counsel. The October 
25 order reduced plaintiffs’ request by $16,- 
844.66, and the November 2 order reduced 
plaintiffs' request by $59,431.27.3

Judgments and Orders affirmed.

(llthC lr. 1989)

William Neal MOORE,
Petitioner-Appellant,

Walter ZANT, Respondent-Appellee.
No. 84-8423.

United States Court of Appeals, 
Eleventh Circuit.

Sept. 28, 1989.

Defendant pled guilty to murder and 
armed robbery and was sentenced to death. 
The Georgia Supreme Court, 213 S.E.2d 
829, affirmed conviction and sentence on 
mandatory review. Defendant applied for 
federal habeas corpus relief, which was 
denied. The Court of Appeals, 734 F.2d 
585, affirmed. Defendant filed second ap­
plication. The United States District Court 
for the Southern District of Georgia, No. 
CV484-175, B. Avant Edenfield, J., dis­
missed that application as abuse of writ. 
The Court of Appeals, 824 F.2d 847, af­
firmed in part, reversed in part, and re­
manded. Certiorari was granted The 
United States Supreme Court, 109 S.Ct. 
1518, vacated and remanded. In plurality 
opinion on remand en banc, the Court of 
Appeals, Cox, Circuit Judge, held that: (1) 
remand order did not preclude revisitation 
of abuse of writ issues; (2) under objective 
standard for disposing of “ new law” abuse 
of writ claims, petitioner abused writ by 
failing to raise Estelle and Proffitt claims 
in first federal petition; and (3) petitioner s 
Gardner claim was meritless, and ends of 
justice did not entitle petitioner to relief on 
that claim even had he not had opportumt> 
to present it.

Affirmed.
Roney, Chief Judge, specially con­

curred and filed opinion.
Hill and Edmondson, Circuit Judges, 

concurred and filed opinions.
Kravitch, Circuit Judge, dissented and 

filed opinion in which Clark, Circuit Judge,

3. The plaintiffs in this court ask that they be 
awarded attorneys' fees and costs for services 
rendered in resisting in this Court the present 
appeal of the defendants and in the companion

,1. Duran v. Carruthers. 885 F.2d 1485 (10th 
989). This is a matter which should be 
iled initially in the district court.



1498 885 FEDERAL REPORTER, 2d SERIES

joined, and Anderson, Circuit Judge, joined 
in part

Johnson, Circuit Judge, dissented and 
filed opinion in which Hatchett, Circuit 
Judge, joined and Kravitch, Anderson, and 
Clark, Circuit Judges, joined in part.

Anderson, Circuit Judge, dissented and 
filed opinion.

1. Habeas Corpus «=861
Order of the United States Supreme 

Court, vacating en banc decision of Court 
of Appeals in habeas proceeding and re­
manding for further consideration in light 
of recent decision, did not preclude revisita­
tion of abuse of writ issues; remand order 
left in existence no appellate level disposi­
tion of those issues and offered no com­
ment on correctness of earlier decision. 
(Per Cox, Circuit Judge, with four Circuit 
Judges concurring and the Chief Judge and 
one Circuit Judge concurring in the result.) 
Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foil. § 2254.
2. Habeas Corpus «=898(1)

In evaluating “ new” claims— those be­
ing raised for the first time in subsequent 
habeas petition—to determine whether 
they should be entertained on their merits, 
district court may conclude that delayed 
presentation of those claims constitutes 
abuse of writ by finding that either peti­
tioner or his counsel intentionally withheld 
or intentionally abandoned claims on earlier 
petition, or inexcusably neglected to in­
clude those claims in earlier petition. (Per 
Cox, Circuit Judge, with four Circuit 
Judges concurring and the Chief Judge and 
one Circuit Judge concurring in the result.) 
Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foil. § 2254.
3. Habeas Corpus «=>899

Once abuse of writ issue has been 
raised, habeas petitioner has burden of an­
swering that allegation by proving, by pre­
ponderance o f evidence, that he has not 
abused writ (Per Cox, Circuit Judge, with 
four Circuit Judges concurring and the 
Chief Judge and one Circuit Judge concur­
ring in the result.) Rules Governing 
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foil. 
§ 2254.

4. Habeas Corpus «= 899
Abuse of writ analysis may be circum­

vented altogether if district court finds, 
judging strictly from records and plead­
ings, that "new” or potentially abusive 
claims are conclusively without merit. (Per 
Cox, Circuit Judge, with four Circuit 
Judges concurring and the Chief Judge and 
one Circuit Judge concurring in the result.) 
Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foil. § 2254; 28 U.S.C.A.
§ 2244.
5. Habeas Corpus <®=898(1)

Notwithstanding petitioner’s abusive 
conduct in failing to present claim in prior 
federal habeas petition, claim may be adju­
dicated on its merits if “ ends of justice” so 
require. (Per Cox, Circuit Judge, with four 
Circuit Judges concurring and the Chief 
Judge and one Circuit Judge concurring in 
the result.) Rules Governing § 2254 
Cases, Rule 9(b), 28 U.S.C.A. foil. § 2254; 
28 U.S.C.A. § 2244.
6. Habeas Corpus «=898(2)

Under “ new law” exception to abuse of 
writ doctrine, change in law which occurs 
between filing of petitioner’s first and sub­
sequent federal habeas petitions may ex­
cuse petitioner’s failure to assert, in his 
first petition, claim based on that change. 
(Per Cox, Circuit Judge, with four Circuit 
Judges concurring and the Chief Judge and 
one Circuit Judge concurring in the result.) 
Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foil. § 2254; 28 U.S.C.A.
§ 2244.

See publication Words and Phrases 
for other judicial constructions and 
definitions.

7. Habeas Corpus ®=898(3)
Under “ new law” exception to abuse of 

writ doctrine, determination of whether 
change in law occurring between filing of 
petitioner’s first and subsequent federal 
habeas petitions is sufficient to excuse 
omission of claim is objective inquiry, 
which seeks to ascertain whether petitioner 
or his counsel reasonably should have 
known about claim at time earlier habeas 
petition was filed. (Per Cox, Circuit Judge, 
with four Circuit Judges concurring and 
the Chief Judge and one Circuit Judge con-



1499MOORE v. ZnNT
Cite m  885 F Jd  1497 (11th Clr. 1989)

curring in the result.) Rules Governing 
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foil.
§ 2254; 28 U.S.C.A. § 2244.
8. Habeas Corpus «=898(1)

Petitioner’s failure to raise in first fed­
eral habeas petition his Estelle claim—that 
state’s failure to inform him of his rights to 
remain silent and to consult with counsel 
prior to probation officer’s presentence in­
terview of him violated his constitutional 
rights—constituted abuse of writ. (Per 
Cox, Circuit Judge, with four Circuit 
Judges concurring and the Chief Judge and 
one Circuit Judge concurring in the result.) 
Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foil. § 2254;. U.S.C.A. Const. 
Amends. 5, 6, 14.
9. Habeas Corpus ®=898(1)

Petitioner’s failure to raise in first fed­
eral habeas petition his Proffitt claim— 
that admission into evidence of presentence 
investigation report violated Sixth Amend­
ment right to confront and cross-examine 
witnesses whose statements report and me­
morialize— constituted abuse of writ. (Per 
Cox, Circuit Judge, with four Circuit 
Judges concurring and the Chief Judge and 
one Circuit Judge concurring in the result.) 
Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foil. § 2254; 28 U.S.C.A.
§ 2244; U.S.C.A. Const.Amend. 6.
10. Habeas Corpus ®=898(2)

Habeas petitioner and his counsel had 
meaningful opportunity to review, correct, 
and supplement presentence investigation 
report prior to imposition of death penalty, 
and, assuming that petitioner’s failure to 
include Gardner claim in first federal ha­
beas petition was abusive, “ ends of justice" 
did not entitle petitioner to relief on that 
claim even had he not had opportunity to 
present it. (Per Cox, Circuit Judge, with 
four Circuit Judges concurring and the 
Chief Judge and one Circuit Judge concur­
ring in the result.) Rules Governing
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foil. 
§ 2254; 28 U.S.C.A. § 2244; U.S.C.A. 
Const.Amends. 8, 14.

1. The facts of this case have been recounted 
elsewhere. See, e.g., Blake v. Zant, 513 F.Supp. 
772, 803-04 (S.D.Ga.1981), affd  in part and 
revd in part sub nom. Moore v. Balkcom, 716 
F.2d 1511 (11th Cir.1983), cert, denied, 465 U.S.

John Charles Roger, New York City, G. 
Terry Jackson, Savannah, Ga., for petition­
er-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlan­
ta, 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 dis­
missal of petitioner Moore’s second applica­
tion 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. 
§ 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 argu­
ment, 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 deci­
sion.

I.
A. Procedural History
Petitioner, William Neal Moore, mur­

dered Fredger Stapleton in Stapleton s 
home during the course of an armed rob­
bery' on April 2, 1974.1 Moore was indicted 
on May 13, 1974, by a grand jury in Jeffer­
son County, Georgia, for the murder and 
robbery of Stapleton. On June 4, 1974,

1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984);
Moore v. State, 233 Ga. 861, 213 S.E.2d 829,
830-31 (1975). cert, denied, 428 U.S. 910, 96
S.Ct. 3222, 49 L.Ed.2d 1218 (1976).



1500 885 FEDERAL REPORTER, 2d SERIES

Moore was arraigned in the Superior Court 
o f 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.

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 offi­
cer and introduced into evidence by the 
prosecutor without objection, the court 
found that Moore had committed the Sta­
pleton murder during the course of an arm­
ed robbery, an aggravating circumstance 
that rendered Moore subject to the death 
penalty. See Ga.Code Ann.
§ 27-2534.l(bX2) (Harrison 1978) (current 
version at Ga.Code Ann. § 17-10-30(bMl) 
(1982)). Thereafter, the court sentenced 
Moore to death.

Moore’s conviction and sentence were af­
firmed 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 peti­
tion 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, Geor­
gia, 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 oppor­
tunity to review the presentence investiga­
tion report prior to the sentencing proceed­
ing. 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 o f 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 sen­
tence 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, challeng­
ing 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 chal­
lenges to his guilty pleas and death sen­
tence. Moore v. Balkcom, 716 F.2d 1511, 
1518-19, 1527 (11th Cir. 1983) (on rehear-



MOORE v. ZANT 1501
Cite a* 885 F id  1497 (llth C lr . 1989)

Moore then filed his second federal habe­ing). 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 subse­
quently 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 re­
main 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 con­
front 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 tri­
al counsel at the sentencing phase of his 
case; and (4) the death penalty in Georgia 
was being administered in a racially dis- 

■ criminatory 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 re­
maining claims by failing to raise them 
during that initial state proceeding. See 
Ga.Code Ann. § 9-14-51 (1982). In March 
1984, the Supreme Court of Georgia denied 
Moore's application for a certificate of 
probable cause to appeal.

2. Moore raised three additional claims, none of 
which is relevant on this appeal.

3. In his second state and federal habeas peti­
tions, Moore asserted that he was sentenced to 
death in violation of Enmund v. Florida, 458 
U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), 
because he lacked the specific intent to kill his 
victim. Observing that it had rejected the En­
mund claim on the merits in Moore s-previous

as 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 applica­
tion 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 presenta­
tion of Moore’s claims constituted an abuse 
of the writ under Rule 9(b) of the Rules 
Governing 28 U.S.C. § 2254 Cases; the 
court found that the claims were based 
neither on newly discovered facts nor on 
newlv 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 cu­
riam).

On Moore’s petition for rehearing, this 
court, sitting en banc, considered whether 
Moore’s failure to present in his first feder­
al 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 ap­
plied in a racially discriminatory manner, 
and the ineffective assistance of counsel 
claim—constituted an abuse of the writ jus­
tifying summary dismissal.' A majority of 
the court was of the opinion that Moore did

federal habeas proceeding, the district court 
held that the claim was meritless and that the 
ends of justice did not require its relitigation.

4. In his en banc brief and during oral argument 
before this court, Moore addressed only five of 
the claims that were presented in his second 
federal petition. We deem those claims not 
advanced on appeal abandoned. E.g., Roberts v. 
Wainwright, 666 F.2d 517, 518 (11th Cir.1982).



1502 885 FEDERAL REPORTER, 2d SERIES

not abuse the writ by failing to assert his 
Estelle and Proffitt claims in his first fed­
eral habeas petition since he did not inten­
tionally withhold those claims, and neither 
he nor his counsel reasonably could have 
anticipated the decisions on which those 
claims were based. Moore v. Kemp, 824 
F.2d 847, 850-54 (11th Cir.1987) (7-5 deci­
sion). The majority also concluded that the 
district court, on remand, should "give 
fresh consideration to whether the ends of 
justice require it to consider the merits of 
Moore’s Gardner claim.” Id. at 857. Fi­
nally, the court unanimously affirmed the 
district court’s dismissal of the two remain­
ing claims as an abuse of the writ. Id. at 
857, 858, 877.

The State subsequently sought Supreme 
Court review of this court’s en banc deci­
sion. Certiorari was granted to consider 
two questions presented by the State, each 
of which relates to the abuse of the writ 
doctrine.5 Instead of addressing the ques­
tions presented by the State, the Supreme 
Court vacated this court’s judgment and 
remanded the case "for further considera­
tion in light of Teague v. Lane, 489 U.S.

5. The questions presented were: (1) what type 
of proof establishes a "new law" exception to 
the abuse of the writ doctrine sufficient to ex­
cuse a habeas petitioner’s abusive conduct in 
failing to assert the claim in a prior federal 
habeas corpus petition; and (2) what type of 
proof establishes that "ends of justice” would be 
served by relitigating death penalty sentencing 
phase claims previously adjudicated adversely 
to a habeas petitioner?

6. In Teague v. Lane, 489 U.S. ------, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989), petitioner, a black 
man, was convicted by an all-white Illinois jury 
of attempted murder, armed robbery, and ag­
gravated battery. During jury selection for peti­
tioner's trial, the prosecutor used all of his per­
emptory challenges to exclude blacks. Petition­
er's counsel moved for a mistrial, arguing that 
the prosecutor’s use of peremptory challenges to 
strike blacks denied him the right to be tried by 
a jury that was representative of the communi­
ty. The Illinois Appellate and Supreme Courts 
denied relief, and the Supreme Court denied 
certiorari.

Petitioner then initiated federal habeas pro­
ceedings pursuant to 28 U.S.C. § 2255, repeating 
his fair cross section claim. The district court 
denied relief. On appeal, a panel of the Seventh 
Circuit Court of Appeals agreed with petitioner’s 
argument that the Sixth Amendment's fair cross 
section guarantee applied to the petit jury, as

------, 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).*

B. Scope o f Review on Remand
[1] Contested on this remand is, inter 

alia, the extent to which the Supreme 
Court’s remand order limits the issues 
which this court may consider and resolve. 
At oral argument, Moore strenuously as­
serted that by vacating this court’s earlier 
en banc opinion and remanding this case 
expressly “ for further consideration in 
light of Teague v. Lane,” the Supreme 
Court did not permit reconsideration of the 
abuse of the writ issues. Instead, he sub­
mits, the evident purpose of the remand 
order is to direct this court to consider 
whether the general rule prohibiting the 
retroactive application of “ new” constitu­
tional principles to cases pending on collat­
eral review at the time those constitutional 
principles are announced should be applied 
to bar consideration of the merits of those 
claims which this court, in its earlier en 
banc decision, determined not to be abu­
sive.6 7 Although he cites no authority in

well as to the jury venire, and held that petition­
er had made out a prima facie case of discrimi­
nation. On rehearing en banc, the court reject­
ed petitioner's fair cross section claim, holding 
that the fair cross section protection was limited 
to the jury venire.

On certiorari to the Supreme Court, petitioner 
urged the adoption of a new rule which would 
extend the fair cross section protection to the 
petit jury. The Court declined to address the 
merits of petitioner’s contention, holding, in­
stead, that if the Court were to adopt a new 
principle of constitutional law. petitioner could 
not benefit from that rule because the rule 
would not be available to petitioners whose 
cases were pending collateral review at the time 
the rule was announced. In an effort to clarify 
existing law relat-ing to the rules of retroactivity, 
the Court announced a general rule prohibiting 
the retroactive application of "new laws" to 
cases that are "final" at the time those laws arc 
announced, and enumerated two exceptions to 
that genera] rule.

7. Specifically, Moore contends that the Supreme 
Court’s remand order presents this court with 
the following five issues, each of which relates 
to the Teague decision: (1) has the State, who 
has not asserted a retroactivity defense at any 
stage of these second federal habeas proceed­
ings, waived its opportunity to assert the nonre­
troactivity of Moore's claims at this stage of the 
proceedings; (2) should the Teague retroactivity



1503MOORE v. ZANT
Cite as 885 F-2d

support of the notion that the remand or­
der was thus limiting, Moore emphasizes 
that the Court did not explicitly solicit fur­
ther consideration of the specific issues 
presented before the prior en banc court. 
The State, in contrast, maintains that the 
Supreme Court, by issuing the remand or­
der, did not intend to preclude this court 
from considering all o f the issues in the 
case, including retroactivity, if appropriate, 
and abuse of writ.8 By directing “ further 
consideration in light of Teague,” the State 
asserts, the Supreme Court was providing 
this court with guidance as to what consti­
tutes “ new law,” such guidance not having, 
been available at the time of this court’s 
earlier en banc decision.

For reasons more elementary and com­
pelling than those offered by the parties, 
we conclude that the Supreme Court’s re­
mand order does not preclude our revisita­
tion of the abuse of the writ issues. Inher-

1497 (U th C lr. 1989)
tion of the abuse of the writ issues, offered 
no comment on the correctness of that ear­
lier decision, and remanded the case to this 
court with the general instruction that we 
further consider the'case in light o f Teag­
ue. We conclude that a reconsideration of 
the abuse of the writ issues is permitted by 
the Supreme Court’s remand order.

II.
Initially, we should decide whether 

Moore abused the writ by raising in his 
second federal habeas petition certain 
claims which he failed to present in his first 
federal petition. As noted, supra note 7, 
on remand Moore presents five additional 
issues for our consideration, each of which 
relates to the Teague decision. Because of 
our disposition of the abuse of the writ 
issues, we find it unnecessary to address 
those additional issues.9

ent in Moore’s argument against reconsid­
eration of those issues is the assumption 
that the Supreme Court’s remand order 
constitutes an implicit approval of this 
court’s earlier en banc disposition of those 
issues. We reject the basic premise of 
Moore’s argument. Although the Supreme 
Court granted certiorari in this case, it 
vacated our earlier en banc decision, leav­
ing in existence no appellate level disposi-

A. Claims Presented 
Moore contends that the district court 

abused its discretion in dismissing, as an 
abuse of the writ, his Estelle, Proffitt, and 
Gardner claims. The State argues, as it 
did before the district court, that Moore’s 
failure to assert in his first federal petition 
those claims which are now before us was 
inexcusable and, therefore, constituted an

rule be applied in the capital sentencing context; 
(3) assuming that the Teague rule is generally 
applicable to capital cases, should it be applied 
retroactively to capital inmates whose cases 
were pending collateral review at the time Teag­
ue was announced; (4) do some of Moore s 
claims fall outside the reach of the Teague rule 
(le., do any of the claims involve issues which 
do not constitute "new law" for purposes of a 
retroactivity analysis); and (5) assuming that all 
or some of Moore's claims fall within the reach 
of Teague (l e ., are based on principles which 
constitute "new law" for purposes of a retroac­
tivity analysis), do any of those new law 
claims fall within either of the exceptions to the 
Teague rule?

8. Both parties concede that they conceive of the
abuse of the writ and retroactivity issues as 
being two separate analyses which must be con­
ducted pursuant to a petitioner's filing of a 
successive federal habeas petition. Moore char­
acterizes the issues as two procedural hurdles 
which must be cleared before a court will ad­
dress the merits of the claims presented. The 
State asserts that the abuse of the writ issue

involves essentially a procedural analysis, the 
conduct of which is a prerequisite to any dispo­
sition of claims on their merits. Further, the 
State maintains that the issue of retroactivity is 
one addressed to the merits of claims presented 
and, hence, cannot be resolved until the abuse 
of the writ issue has been determined. The 
parties' conception of the interrelationship be­
tween the two issues is irrelevant to the present 
discussion; Moore urges this court to adhere to 
its prior finding of no abuse of the writ as to the 
Proffitt, Estelle, and Gardner claims—to declare 
Moore as having successfully cleared that proce­
dural hurdle—and to proceed immediately to 
judging his attempt to clear the second hurdle— 
retroactivity—on his course to relief. The State, 
in contrast, asserts that both "hurdles" remain 
in Moore's path.

Because we conclude that Moore abused the 
writ by failing to include in his initial federal 
habeas petition the issues which he presents for 
the first time in his second federal habeas peti­
tion, we need not address whether the Teague 
rule should be applied to preclude an evaluation 
of the merits of Moore’s claims.



885 FEDERAL REPORTER, 2d SERIES1504
abuse of the writ. The State notes that 
Moore has been represented by counsel 
throughout all stages of his collateral pro­
ceedings, that there are no newly discover­
ed facts in Moore’s ease— the facte now 
being offered in support of his “ new” 
claims having been well known at the time 
he filed his first federal petition and that 
the federal constitutional implications of 
those facte, now being asserted by Moore, 
were plainly discernable from relevant case 
law that was in existence at that time. 
With respect to the Estelle and Proffitt 
claims, the State contends that Moore, who 
was represented by counsel at all times 
relevant to this appeal, is chargeable with 
the knowledge— actual and constructive— 
that counsel possessed at the time Moore 
filed his first habeas petition, and that 
counsel, at that time, reasonably should 
have anticipated those claims. Moore nei­
ther disputes that he has been represented 
by counsel at all stages during his direct 
and collateral proceedings, nor asserts that 
he is attempting to rely on newly discover­
ed facte. His disagreement with the State 
and the district court, at least with respect 
to his Estelle and Proffitt claims, concerns 
the legal significance of the facte. Specifi­
cally, Moore contends that his claims are 
based on new principles of constitutional 
law which were not recognized until afier 
Moore filed his first federal habeas peti­
tion; because those principles were estab­
lished afier Moore filed his first petition, 
he cannot be said to have intentionally 
abandoned, intentionally withheld, or inex­
cusably neglected to have asserted those 
claims in his petition. Instead, Moore sub­
mits, the change in the law constitutes a 
legal excuse justifying the delayed asser­
tion of his claims.

With respect to his third claim that 
which is based on Gardner v. Flor­
ida—Moore acknowledges that the claim is 
not based on newly discovered facte or new 
principles of federal constitutional law. He 
does maintain, however, that he did not 
deliberately withhold this claim from his 
first federal petition (as evidenced by his 
attempt to amend that petition to include 
this claim), and therefore, did not abuse the 
writ with respect to this claim. Alterna­
tively, he asserts that notwithstanding his

failure to include this claim in his earlier 
petition, the “ ends of justice” require an 
evaluation of the claim on the merits.

As to each of the claims presented by 
Moore, we must review the district court s 
decision for an abuse of discretion. Sand­
ers v. United States, 373 U.S. 1, 18, 83 
S.Ct. 1068, 1079, 10 L.Ed.2d 148 (1963); 
Darden v. Dugger, 825 F.2d 287, 292 (11th 
Cir.1987). After outlining the basic princi­
ples governing the abuse of the writ analy­
sis, we shall address each of Moore’s 
claims in turn.

B. Abuse o f the Writ Doctrine 
According to Rule 9(b) of the Rules Gov­

erning Section 2254 Cases, a federal court 
may dismiss a second or subsequent peti­
tion for federal habeas corpus relief if it 
finds that the petition “ fails to allege new 
or different grounds for relief and the prior 
determination was on the merits or, if new 
and different grounds are alleged, [it] finds 
that the failure of the petitioner to assert 
those grounds in a prior petition constitut­
ed an abuse of the wnt.” 28 U.S.C. foil.
§ 2254 Rule 9(b) (1982). This rule is stated 
in slightly different terms in section 2244, 
28 U.S.C. (1982), which provides that a 
court may dismiss a petition summarily 
unless the petition “ alleges and is predicat­
ed on a factual or other ground not adjudi­
cated on the hearing of the earlier applica­
tion for the writ, and unless the court, 
justice, or judge is satisfied that the appli­
cant has not on the earlier application delib­
erately withheld the newly asserted ground 
or otherwise abused the writ.” A principal 
reason underlying these rules is to promote 
the finality of criminal proceedings by re­
quiring petitioners to include all of their 
claims in a single habeas petition in the 
federal district court. See Kuhlmann v. 
Wilson, 477 U.S. 436, 451-52, 106 S.Ct. 
2616, 2624-26, 91 L.Ed.2d 364 (1986) (plu­
rality opinion). For purposes of this opin­
ion, we must distinguish between the two 
classes of claims those rules describe; the 
first consists of “ successive” claims—those 
which were raised and considered on their 
merits in an earlier federal habeas peti­
tion—and the second consists of “ new” 
claims—those which are being raised for



1505MOORE v. ZANT
Cite as 885 F.2d 1497 ( l lth C lr . 1989)

the first time in the subsequent petition.10 * 
Presently, we are concerned only with 
claims that are included in the latter cate­
gory.

[2] In evaluating “ new” claims to deter­
mine whether they should be entertained 
on their merits, a district court may con­
clude that the delayed presentation of 
those claims constitutes an abuse of the 
writ by finding that either petitioner or his 
counsel intentionally withheld or intention­
ally abandoned the claims on the earlier 
petition, or inexcusably neglected to in­
clude those claims in the earlier petition. 
See Woodard v. Hutchins, 464 U.S. 377, 
379 & n. 3, 104 S.Ct. 752, 753 & n. 3, 78 
L.Ed.2d 541 (1984) (Powell, J., concurring, 
joined by four other justices); Demps v. 
Dugger, 874 F.2d 1385 (11th Cir.1989); 
Witt v. Wainwright, 755 F.2d 1396, 1397 
(11th Cir.), cert, denied, 470 U.S. 1039, 105 
S.Ct. 1415, 84 L.Ed.2d 801 (1985); Stephens 
v. Kemp, 721 F.2d 1300, 1303 (11th Cir. 
1983); Potts v. Zant, 638 F.2d 727, 740-41 
(5th Cir. Unit B), cert, denied, 454 U.S. 877, 
102 S.Ct. 357, 70 L.Ed.2d 187 (1981); see 
also Funchess r. Wainwright, 788 F.2d 
1443, 1445 (11th Cir. 1986) (per curiam); Ha­
ley v. Estelle, 632 F.2d 1273, 1275 (5th Cir. 
Unit A 1980); Paprskar v. Estelle, 612 
F.2d 1003 (5th Cir. 1980), cert, denied, 449 
U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 
(1980). An abuse might not be found 
where the district court finds that a peti­
tioner was unaware, at the time he filed his 
first petition, of the specific legal or factual 
grounds supporting his “ new” claim, see 
Booker v. Wainwright, 764 F.2d 1371, 1376 
(11th Cir.), cert, denied. 474 U.S. 975, 106 
S.Ct. 339, 88 L.Ed.2d 324 (1985); c f  
Demps, 874 F.2d at 1392 (abuse can occur 
where petitioner deliberately refrains from 
asserting one of two grounds for relief in 
the first petition in an effort to secure two

10. Also, for purposes of this opinion, we must
distinguish between "new" claims and so-called 
"new law" claims. "New” claims are those 
which are presented for the first time in a 
second or subsequent federal habeas petition 
and which are subject to summary dismissal if a 
petitioner’s failure to present them in his initial 
federal habeas petition constituted an abuse of 
the writ. "New law” claims arc a particular type 
of "new” claim—those which are based on an 
intervening change in the law that occurred

hearings instead of one) (citing Sanders v. 
United States, 373 U.S. 1, 18, 83 S.Ct. 
1068, 1078, 10 L.Ed.2d 148 (1963); Jones v. 
Estelle, 722 F.2d 159, 163-64 (5th Cir.1983) 
(en banc) (citing Wong Doo v. United 
States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 
999 (1924)), or that the law has changed 
since the earlier petition, Sanders, 373 U.S. 
at 17, 83 S.Ct. at 1078; Tucker v. Kemp, 
818 F.2d 749, 752 (11th Cir.1987); see 
Demps, 874 F.2d at 1392. In some instanc­
es, however, an abuse might be found even 
if the law has changed since the earlier 
petition. See, e.g., McCorquodale v. 
Kemp, 832 F.2d 543, 544 (11th Cir.1987); 
Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 
(11th Cir.), cert, denied, 477 U.S. 910, 106 
S.Ct. 3289, 91 L.Ed.2d 576 (1986). Cf. Cole­
man v. Saffle, 869 F.2d 1377, 1381 (10th 
Cir.1989). Our task in this case is defini­
tively to decide the standard by which 
courts of this circuit henceforth will judge 
the abusive nature of petitions alleging 
“ new law” claims.

[3] Once the abuse of the writ issue has 
been raised, the petitioner has the burden 
of answering that allegation by proving, by 
a preponderance of the evidence, that he 
has not abused the writ. Sanders, 373 
U.S. at 10-11, 83 S.Ct. at 1074-75; Price v. 
Johnston. 334 U.S. 266, 292, 68 S.Ct. 1049, 
1063, 92 L.Ed. 1356 (1948); see also Fun- 
chess, 788 F.2d at 1445; Jones, 722 F.2d at 
164. Hence, once the state contends that 
the petitioner’s delayed presentation of his 
claim constitutes an abuse of the writ, the 
petitioner has the burden of satisfying the 
district court that the delay is excusable. 
As noted, determining the sufficiency of 
the petitioner's explanation is a matter 
committed to the sound discretion of the 
habeas judge. Sanders, 373 U.S. at 18, S3 
S.Ct. at 1079; Darden, 825 F.2d at 292.

between the filing of a petitioner's first and 
subsequent federal habeas petitions. As dis­
cussed, infra pp. 1506-08, "new law” claims 
will survive abuse of the writ scrutiny only if a 
reasonably competent attorney (assuming that 
petitioner is represented by counsel), at the time 
of filing petitioner's first federal habeas petition, 
could not reasonably have anticipated the 
changes in the law on which those claims are 
based.



1506 885 FEDERAL REPORTER, 2d SERIES

[4, 5] Notably, there are two exceptions 
to the application of the foregoing princi­
ples. First, the abuse of the writ analysis 
may be circumvented altogether if the dis­
trict judge finds, judging strictly from the 
records and pleadings, that the “ new” or 
potentially abusive claims are conclusively 
without merit. Sanders, 373 U.S. at 15, 83 
S.Ct. at 1077; see also Stephens, 721 F.2d 
at 1303. Second, notwithstanding a peti­
tioner’s abusive conduct in failing to 
present a claim in a prior federal habeas 
petition, the claim may be adjudicated on 
its merits if the “ ends of justice” so re­
quire. Sanders, 373 U.S. at 18—19, 83 S.Ct. 
at 1079; see also Demps, 874 F.2d at 1392; 
Ritter v. Thigpen, 828 F.2d 662, 666 (11th 
Cir. 1987); Mulligan v. Kemp, 818 F.2d 
746, 747 (11th Cir.1987).

C. “New Law” Exception to the Abuse 
o f  the Writ Doctrine 

[6,7] As noted, a change in the law 
which occurs between the filing of a peti­
tioner’s first and subsequent federal habe­
as petitions may excuse a petitioner’s fail­
ure to assert in his first petition a claim 
that is based on that change. Sanders, 373 
U.S. at 17, 83 S.Ct. at 1078; Tucker, 818 
F.2d at 752; see Demps, 874 F.2d at 1392. 
This court previously has intimated, in dic­
ta. that determination of whether the 
change is sufficient to excuse the omission 
of the claim is an objective inquiry, which 
seeks to ascertain whether petitioner or his 
counsel reasonably should have known 
about the claim at the time the earlier 
habeas petition was filed. See. e.g., 
McCorquodale v. Kemp, 832 F.2d 543. 544 
(11th Cir.1987) (indicating a “ new law” 
claim is one that is based on legal princi­
ples “ not reasonably known” until after the 
first federal habeas petition); Bowden v. 
Kemp. 793 F.2d 273. 275 & n. 4 (11th Cir.), 
cert, denied, 477 U.S. 910, 106 S.Ct. 3289, 
91 L.Ed.2d 576 (1986) (petitioner had rea-

11. Because the petitioner in this case was repre­
sented bv counsel at all times relevant to this 
appeal, our discussion is limited to the "new 
law" inquiry as it relates to petitioners who 
were represented by counsel at the time their 
first federal petition was filed.

12. A case involves a "clear break with past 
precedent” when it explicitly overrules a past

sonable basis upon which to fashion a 
claim). In this case, the State’s arguments 
assume that this standard applies. Moore, 
on the other hand, argues implicitly that 
the determination is strictly subjective. 
Today, we expressly adopt the objective 
standard as the governing standard.11

As with the general rules governing the 
disposition of subsequent habeas petitions, 
the standard that is applied to determine 
whether a change in the law is sufficient to 
excuse the omission of a claim from an 
earlier petition must accommodate two 
competing, though compelling, interests: 
society’s interest in securing finality to 
judgments, and a petitioner’s interest in 
securing a full and fair opportunity to vin­
dicate his constitutional rights. See gener­
ally Kuhlmann, 477 U.S. at 451-52, 106 
S.Ct. at 2625-26. If the standard were 
purely subjective, depending on a petition­
er's actual knowledge of the claim at the 
time of filing of the earlier petition, the 
“ new law” exception would swallow the 
abuse rules, and society’s interest in finali­
ty would be seriously undermined.

An objective standard that seeks to 
ascertain if reasonably competent counsel, 
at the time of filing of the first petition, 
reasonably should have anticipated a later 
change in the law, however, would better 
accommodate the principles of finality and 
fairness than the subjective standard. The 
objective standard would promote certainty 
in the law and uniformity of results from 
case-to-case, by making characterization of 
the change in the law depend on the objec­
tive unforeseeability of the change and by 
saddling petitioners with the burden or the 
benefit of what the “ reasonably competent 
attorney” could anticipate. In cases involv­
ing “ clear breaks with past precedent,” 12 
or a deliberate breaking of new constitu­
tional ground, a petitioner’s failure to in­
clude such a claim in an initial federal 
petition always would be excused under

precedent of the Supreme Court, disapproves a 
practice the Supreme Court arguably sanctioned 
in prior cases, or overturns a longstanding and 
widespread practice to which the Supreme 
Court has not spoken, but which a near-unani­
mous body of lower court authority expressly 
has approved. See United States v. Johnson, 457 
U.S. 537, 551-52, 102 S.Ct. 2579, 2587-88, 73 
L.Ed.2d 202 (1982).



1507MOORE v. ZANT
CII*a»88S F Jd  1497 (I llh C lr . 1989)

this standard. That is so because such 
changes, by definition, are virtually unfore­
seeable, and reasonably competent counsel, 
therefore, cannot be said to have reason­
ably anticipated such changes. See also 
Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 
2910, 82 L.Ed.2d 1 (1984) (a rule requiring 
petitioners to raise a truly novel issue is 
not likely to serve any functional purpose). 
The more difficult, and typical, cases in­
volve changes that are much less marked. 
The objective “ new law” inquiry is intended 
to facilitate the analysis of claims that are 
based on those changes.

We recognize, therefore, that the purely 
objective standard is the one that should 
control disposition of “ new law” abuse of 
the writ claims. In so doing, we make a 
few observations. As noted, the rule gen­
erally represents an equitable accommoda­
tion of two competing, paramount inter­
ests: society’s interest in finality of judg­
ments and a petitioner’s interest in secur­
ing a full and fair opportunity to vindicate 
his constitutional rights. Consistent with 
these general equitable principles is anoth­
er notion: it is not unreasonable or mani­
festly inequitable to charge a petitioner 
with the knowledge of a reasonably compe­
tent attorney or, if his attorney fails to 
anticipate a change which reasonably com­
petent counsel reasonably could have antic­
ipated, to charge him with his attorney’s 
mistakes. If it is appropriate to charge 
litigants with their attorneys’ mistakes in 
situations in which litigants have a Sixth 
Amendment right to effective assistance of 
counsel, it certainly is reasonable to charge 13

13. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 
1558, 71 L.Ed.2d 783 (1982), Isaac, a state pris­
oner, raised in his federal habeas petition a 
claim that one of the jury instructions given at 
trial violated his due process rights. At the time 
of Isaac's conviction. Ohio law required defen­
dants to prove an affirmative defense by a pre­
ponderance of the evidence. Ten months later, 
however, the Ohio Supreme Court held that jury 
instructions to that effect were unconstitutional. 
The district court summarily dismissed his 
claim, holding that it was procedurally barred 
because Isaac had failed to comply with an Ohio 
court rule mandating contemporaneous objec­
tions to jury instructions.

Reversing the district court, the Sixth Circuit 
Court of Appeals concluded that Wainwright v. 
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 
(1977), did not preclude consideration of Isaac's

litigants with their attorneys’ mistakes in 
situations in which no entitlement to effec­
tive assistance of counsel exists. See 
Pennsylvania v. Finley, 481 U.S. 551, 555, 
107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) 
(citing Johnson v. Avery, 393 U.S. 483, 488, 
89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969)) 
(prisoners do not have a constitutional 
right to counsel when mounting collateral 
attacks to their convictions or sentences); 
Wainwright v. Toma, 455 U.S. 586, 587- 
88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 
(1982) (petitioner cannot be deprived of ef­
fective assistance of counsel where he has 
no constitutional right to counsel); see also 
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 
2639, 2645, 91 L.Ed.2d 397 (1986) (“ the 
mere fact that counsel failed to recognize 
the factual or legal basis for a claim, or 
failed to raise the claim despite recognizing 
it, does not constitute cause for procedural 
default” ); Smith v. Newsome, 876 F.2d 
1461, 1466 (11th Cir.1989) (citing Murray, 
All U.S. at 488, 106 S.Ct. at 2645) (“ We 
hold parties represented by counsel respon­
sible for their mistakes.” ).

The rule we adopt is analogous to the 
“ new law” standard that the Supreme 
Court has adopted and applied in the proce­
dural default .context' for establishing 
“ cause,” and which the district court in this 
case relied on in addressing Moore’s abuse 
of the writ claims. In addressing Moore’s 
claims, the district court specifically relied 
on the new law standard for establishing 
cause which was articulated in Engle v. 
Isaac. 456 U.S. 107, 102 S.Ct. 1558, 71 
L.Ed.2d 783 (1982).13 Engle, to the extent

due process claim. Instead, the court found 
that Ohio courts consistently had upheld the 
constitutionality of the complained-of jury in­
structions prior to holding them unconstitution­
al. that any attempt by Isaac to object to the 
instructions at trial probably would have been 
futile, and the futility of objecting to the instruc­
tions would have supplied adequate cause for 
Isaac's waiver.

Reversing the Sixth Circuit's decision, the Su­
preme Court reaffirmed the Sykes rule, and held 
that Isaac had waived his claim by failing to 
object to the jury instructions at trial. The 
Court found that "cause" for Isaac’s default 
could not be based on Isaac's assertion that he- 
could not have known at that time that the state 
jury instructions were constitutionally infirm. 
In so doing, the Court emphasized that numer­
ous defendants previously had relied on In re



885 FEDERAL REPORTER, 2d SERIES1508
that it enumerated a general rule, indicated 
that petitioners might have a duty to antic­
ipate changes in the law at the threat of 
having later claims based on those changes 
barred by principles of procedural default. 
The Engle standard was refined in Reed v. 
Ross, 468 U.S. 1, 13—16, 104 S.Ct. 2901, 
2909-10, 82 L.Ed.2d 1 (1984), a case which 
was decided three weeks after the district 
court in this case announced its decision.
In Reed, the Court considered whether and 
to what extent "the novelty of a constitu­
tional issue at the time of a state-court 
proceeding could . . .  give rise to cause for 
defense counsel’s failure to raise the issue 
in accordance with applicable state proce­
dures.” Reed, 468 U.S. at 13, 104 S.Ct. at 
2909. After noting the inequities inherent 
in a broad rejection of the notion that a 
“ new law” may provide “ cause” sufficient 
to relieve a petitioner’s procedural default, 
the court concluded that “ where a constitu­
tional claim is so novel that its legal basis 
is not reasonably available to counsel, a 
defendant has cause for his failure to raise 
a claim in accordance with state proce­
dures.” Reed, 468 U.S. at 16, 104 S.Ct. at 
2910 (emphasis added). The court w’ent on 
to note that the question of whether an 
attorney has a “ reasonable basis upon 
which to develop a legal theory can arise in 
a variety of contexts, and then held that 
one of those contexts is where the Supreme 
Court “ has articulated a constitutional prin­
ciple that has not been previously recog­
nized but which is held to have retroactive 
application.” Id. at 17, 104 S.Ct. at 2911.

Having outlined the basic rules govern­
ing the abuse of the writ analysis and 
determined the standard by which “ new 
law” claims should be judged, we next 
must evaluate Moore's claims in light of 
those rules.

Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 
368 (1970). and Mullaney v. Wilbur, 421 U.S. 
684. 95 S.Ct. 1881, 44 L_Ed.2d 508 (1975), in 
objecting to similar jury instructions, despite the 
fact that the defendants' claims often countered 
well-established principles of law. Engle, 456 
U.S. at 132, 102 S.Ct. at 1574. In light of the 
many challenges made by other defendants, the

D. Discussion
1. Estelle v. Smith claim.
[8] Moore presents two “ new law” 

claims in his current federal habeas peti­
tion. The first claim, based on Estelle v. 
Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 
L.Ed.2d 359 (1981), is that the state failed 
to inform him of his right to remain silent 
and of his right to consult with counsel 
prior to the probation officer’s presentence 
interview of him, in violation of the Fifth, 
Sixth, and Fourteenth amendments.

In Estelle v. Smith, the trial court, sua 
sponte, ordered that the defendant under­
go a psychiatric examination to determine 
his competency to stand trial for a capital 
crime. The judge subsequently found the 
defendant competent and, following a trial, 
a jury convicted him of the capital crime. 
At the sentencing stage of the proceeding, 
the state offered the testimony of the 
court-appointed psychiatrist, who had inter­
viewed the defendant solely for competen­
cy purposes, to prove the defendants fu­
ture dangerousness, a condition precedent 
to the imposition of the death penalty. 
Basing his testimony on his competency 
examination of the defendant, the psychia­
trist testified that he believed the defen­
dant always would be dangerous. Relying 
on this testimony, the jury imposed the 
death penalty. See Estelle v. Smith, 451 
U.S. at 456-60, 101 S.Ct. at 1870-71.

Affirming a unanimous panel of the for­
mer Fifth Circuit, the Supreme Court con­
cluded that the State’s use of the psychia­
trist’s testimony had violated the defen­
dant’s Fifth, Sixth, and Fourteenth amend­
ment rights. Analogizing the psychiatric 
examination to the custodial interrogation 
in Miranda v. Arizona, 384 U.S. 436, 86 
S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court 
held that the defendant should have re­
ceived a Miranda warning prior to the 
interview. See Estelle, 451 U.S. at 466-69,

Court "could not say that state prisoners, such 
as Isaac, lacked the tools necessary to construct 
their constitutional claim." Without defining 
the precise scope of its rule, the Court thus 
established some duty on the part of habeas 
petitioners to anticipate future changes in the 
law at the threat of having claims barred by 
principles of procedural default.



101 S.Ct. at 1875-76. Moreover, the Court writ analysis, 
unanimously concluded that under the 
Sixth and Fourteenth amendments, the psy­
chiatric examination was a critical stage of 
the criminal proceedings; accordingly, the 
State should have forewarned the defen­
dant’s attorney that the results of the com­
petency examination could be used for rea­
sons other than to determine the defen­
dant’s competency to stand trial. Because 
the defendant’s attorney had not been so 
informed, the State had denied the defen­
dant his right to consult with counsel dur­
ing a critical stage of the proceedings. See 
id. at 469-72, 101 S.Ct. at 1876-77.

The State’s primary contention with re­
spect to his claim is that Moore’s counsel, 
in 1978 (when Moore’s first federal habeas 
petition was filed), reasonably should have 
anticipated the holding in Estelle (i.e., the 
application of the Miranda protections to 
capital sentencing proceedings). In sup­
port of its position that counsel should have 
anticipated the Estelle holding, the State 
refers to Battie v. Estelle, 655 F.2d 692 
(5th Cir.1981), in which the former Fifth 
Circuit held, for purposes of retroactivity, 
that Estelle did not constitute a new consti­
tutional principle and, therefore, was to be 
applied retroactively to cases pending col­
lateral review at the time Estelle was an­
nounced. The State’s reference to Battie 
is specifically intended to support the argu­
ment that Estelle did not represent a clear 
break with past precedent—a condition that 
almost always would excuse a petitioner s 
failure to raise a claim in an earlier peti­
tion—but was a natural and foreseeable 
extension of existing constitutional P i m ­
ples into a new factual context. The 
State’s argument seeks to charge Moore 
with a duty to anticipate that extension 
and to characterize that claim as having 
been “ reasonably available’’ to Moore s 
counsel at the time Moore filed his first 
federal habeas petition.

Moore, in contrast, asserts that Estelle is 
“ new law” for purposes of the abuse of the

MOORE v. ZANT
C lteu M S  FJd 1497 (U lhClr. 1989)

Moore’s position is, there­
fore, fundamentally at odds with the 
State’s position regarding the standard 
governing “ new law” claims. Moore in­
sists that this court must evaluate his 
“ knowledge” of a potential Estelle claim at 
the time of filing of his first federal peti­
tion. The court, he maintains, must ascer­
tain whether he intentionally or deliberate­
ly refrained from presenting the Estelle 
claim in his first petition (i.e., did he have 
knowledge of a potential Estelle claim yet 
refrain from presenting the claim until it 
was explicitly available?). Moore’s pro­
posed inquiry essentially is subjective, with 
the “ newness” of a constitutional claim de­
pending not on the objective foreseeability 
of a “ change” in the law, but, instead, 
depending on the foreseeability of the 
claim to a particular petitioner.14 In sup­
port of his position, Moore asserts that the 
equitable considerations inherent in Rule 
9(b) of the Rules Governing Section 2254 
Cases disallow a bar of this claim by the 
abuse of the writ doctrine.

As noted, in analyzing Moore’s claims for 
an abuse of the writ, the district court 
analogized the “ new law” standard articu­
lated in Engle for establishing “ cause” suf­
ficient to excuse a petitioner s procedural 
default. The court concluded that Moore 
was under a duty to raise in his first habe­
as petition constitutional claims, based on 
intervening changes in the law, which could 
have been anticipated by Moore’s counsel. 
Because, according to the court, Estelle 
could have been anticipated by Moore s 
counsel, Moore’s omission of the Estelle 
claim from his earlier petition was inexcus­
able.

Applying to the facts of this case the 
“ new law” standard we have articulated 
for analyzing potentially abusive claims, it 
is evident that the district court did not 
abuse its discretion in concluding that 
Moore's failure to raise the Estelle claim in 
his first federal habeas petition constituted

1509

14. Because, as Moore asserts, the focus is on a 
petitioner’s conduct, conceivably, under mis in­
quiry, a petitioner could avoid having a clai 
barred by abuse principles if he had no knowh 
edge of the "new law" but his attorney did have 
knowledge of it. This implication of Moore s

argument is clearly contrary to law of this and 
other circuits, which looks at what counsel 
knew or should have known at the time the first 
petition was filed to determine whether a peti­
tioner's conduct was abusive.



1510 885 FEDERAL REPORTER, 2d SERIES

an abuse of the writ. Estelle is significant 
to Moore’s case not simply because it ex­
tended the Fifth and Sixth amendment 
rights recognized in Miranda v. Arizona, 
384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 
(1966), to interrogations conducted by 
court-appointed psychiatrists; instead, it is 
significant because it recognized the appli­
cability of the protections described in Mi­
randa to the sentencing phase of capital 
proceedings. Our inquiry seeks not to de­
termine whether, in 1978, reasonably com­
petent counsel reasonably could have antic­
ipated the application of Miranda protec­
tions to interrogations conducted by proba­
tion officers. Instead, the “ new law” in­
quiry, described above, seeks to determine 
whether, in November, 1978— the time of 
filing of Moore’s first federal habeas peti­
tion—reasonably competent counsel rea­
sonably could have anticipated the eventual 
application of Miranda to the sentencing 
phase of Georgia’s bifurcated capital pro­
ceedings. Relevant to that determination 
is the status of Georgia’s capital punish­
ment scheme in 1978, the adversarial na­
ture of the sentencing phase of the capital 
scheme, and the extent to which constitu­
tional protections other than those recog­
nized in Miranda had been recognized and 
applied to capital sentencing proceedings. 
Hence, we must determine whether reason­
ably competent counsel, searching the legal 
horizon in 1978, could have been expected 
to argue in favor of the application of 
Miranda to the sentencing proceedings in 
this case.

In 1972 and pursuant to the Supreme 
Court’s decision in Furman v. Georgia, 
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 
(1972), which held unconstitutional Geor­
gia’s death penalty statute, the Georgia 
legislature enacted new legislation govern­
ing capital trial proceedings. The new law, 
which was held constitutional by the Su­
preme Court in Gregg v. Georgia, 428 U.S.

15. During the sentencing phase, for example, 
opening statements were to be made by the 
prosecution and the defense. Thereafter, both 
sides were given the opportunity to present evi­
dence of aggravating and mitigating circum­
stances in an effort to establish an appropriate 
sentence—death or life imprisonment. Follow­
ing the close of all of the evidence, both sides

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), 
provided for bifurcated capital proceedings, 
with the stages being devoted to guilt de­
termination and to sentencing, respectively. 
Each stage clearly was intended to be ad­
versarial.15

It was not immediately obvious following 
the Supreme Court’s Gregg decision that 
the full panoply of constitutional protec­
tions normally accorded to a defendant’s 
merits trial would be applied to capital sen­
tencing phases in general or to Georgia’s in 
particular. By 1977, however, the Supreme 
Court had recognized that some of those 
protections would apply. For example, the 
Court, in Gardner v. Florida, 430 U.S. 349, 
97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), recog­
nized the applicability of certain Eighth and 
Fourteenth amendment protections to capi­
tal sentencing proceedings, stating “ the 
sentencing process, as well as the trial 
itself, must satisfy the Due Process 
Clause.”  Gardner, 430 U.S. at 358, 97 
S.Ct at 1204.

In light of the Supreme Court’s clear 
recognition, by 1978, that some of the con­
stitutional protections afforded to capital 
defendants during their merits trials ap­
plied as well to sentencing proceedings, a 
reasonably competent attorney reasonably 
could have anticipated the eventual applica­
tion of the protections established in Mi­
randa to capital sentencing proceedings. 
Moore’s failure to make an Estelle-type 
claim in his first federal habeas petition, 
therefore, is inexcusable.

2. Proffitt v. Wainumight claim.
[9] In his second federal habeas petition 

Moore also presented for the first time in 
federal court a claim, based on this court’s 
decision in 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), 
that the admission into evidence of the

argued their case to the jury, the court instruct­
ed the jury on the law, and the jury retired to 
deliberate its verdict. The judge then imposed 
the appropriate sentence in accordance with the 
jury's verdict. Cases tried to the court, instead 
of to a jury, followed the same procedures, 
except that the judge replaced the jury as the 
finder of fact and the sentence.



1511MOORE v. ZANT
Cite u  885 F id  1497 (llthC lr. 1989)

presentence investigation report violated 
his Sixth Amendment right to confront and 
cross-examine the witnesses whose state­
ments the report memorialized. Applying 
the “ new law” analysis enumerated in Sec­
tion 11(c), we conclude that Moore abused 
the writ with respect to this claim, too.

In Proffitt, the defendant submitted to 
examination by two psychiatrists prior to 
sentencing. One of the psychiatrists sub­
sequently was unable to attend the defen­
dant’s sentencing hearing; hence, his views 
concerning the defendant’s competence and 
mental state were submitted solely in a 
written report. The defendant requested, 
but did not receive, an opportunity to cross- 
examine the psychiatrist concerning the re­
port. Proffitt, 685 F.2d at 1250-51 & n. 
36a.

The Proffitt court initially noted that the 
rights secured by the Sixth Amendment, 
including the right to cross-examine ad­
verse witnesses, apply only to critical 
stages of the trial. Id. at 1252 (citations 
omitted). Next, acknowledging that the 
protections of the Sixth Amendment do not 
apply with full force in all sentencing pro­
ceedings, the court noted that the applica­
bility of cross-examination rights to capital 
sentencing hearings “ has not been specifi­
cally addressed by the Supreme Court and 
is an issue of first impression in this Cir­
cuit.” Id. at 1253. The court concluded 
that Proffitt was entitled, under the Sixth 
Amendment, to cross-examine the psychia­
trist at his sentencing hearing. Id. at 1255.

The State asserts that the parties’ con­
tentions with respect to this claim are es­
sentially identical to those raised with re­
spect to the Estelle claim. The State as­
serts that Moore’s counsel, in 1978, reason­
ably should have anticipated the holding in 
Proffitt (i.e., the extension of an existing 
constitutional principle— the right to con­
front witnesses—into the context of capital 
sentencing proceedings). The State main­
tains that the Proffitt holding was part of 
a foreseeable trend toward extending vari­
ous constitutional protections to capital 
sentencing proceedings, and, as such, did 
not constitute a clear, unanticipatable 
break with past precedent. Because 
Moore's counsel, scanning the legal horizon 
in 1978, reasonably could have anticipated

the Proffitt holding, the State argues, 
Moore should be found to have been inex­
cusably neglectful in omitting the claim 
from his first federal petition. Moore, in 
contrast, asserts that Proffitt is "new law” 
for purposes of the abuse analysis precise­
ly because he did not have knowledge of a 
potential Proffitt claim at the time he filed 
his first federal petition. Again, Moore 
insists that this court, in determining 
whether he had knowledge of a possible 
Proffitt claim, must ascertain whether 
Moore was aware of the potential claim 
(i.e., recognized the factual and legal un­
derpinnings of the claim) yet deliberately 
refrained from presenting the claim in his 
first petition.

For the same reasons we concluded 
Moore abused the writ by failing to raise 
his Estelle claim in his first petition, we 
conclude that his failure to raise his Prof­
fitt claim in that petition is inexcusable. 
Presaging Proffitt was a long line of cases 
in which Sixth Amendment protections 
were extended in a variety of circumstanc­
es and another line which addressed the 
special safeguards that are constitutionally 
mandated in capital proceedings. For ex­
ample, in 1965, the Supreme Court held, in 
two separate cases, that the Sixth Amend­
ment provides defendants with the right to 
cross-examine adverse witnesses in state 
criminal proceedings. See Douglas v. Ala­
bama. 380 U.S. 415, 85 S.Ct. 1074, 13 
L.Ed.2d 934 (1965); Pointer v. Texas, 380 
U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 
(1965). Moreover, the Court repeatedly 
has recognized that the right to cross-ex­
amine adverse witnesses, like the right to 
counsel, is a fundamental requirement for 
a fair trial and for ensuring due process of 
law. See Chambers v. Mississippi, 410 
U.S. 284, 294-95, 93 S.Ct. 1038, 1045, 35 
L.Ed.2d 297 (1973); Pointer, 380 U.S. at 
405, 85 S.Ct. at 1068; In re Oliver, 333 
U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 
682 (1948).

As this court recognized in Proffitt, the 
right to cross-examination applies only to 
“ critical stages of the trial.” Proffitt, 685 
F.2d at 1252. During the 1960s and 1970s, 
the extent to which various phases of the 
criminal process, including sentencing pro­
ceedings, constituted “ critical stages” for



1512 885 FEDERAL REPORTER, 2d SERIES

purposes of the Sixth Amendment was un­
settled. See, e.g., United States v. Fatico, 
579 F.2d 707, 713-14 (2d Cir.1978). The 
clear trend, however, was toward expand­
ing the full panoply of Sixth Amendment 
protections, including confrontation rights, 
into new contexts. See, e.g., Mempa v. 
Rhay, 389 U.S. 128, 134, 88 S.Ct. 254 , 256- 
57, 19 L.Ed.2d 336 (1967) (recognizing the 
Sixth Amendment right to counsel during a 
sentencing and probation revocation hear­
ing); see also Taparauskas, An Argument 
fo r  Confrontation at Sentencing: Bring­
ing the Offender into the Sentencing Pro­
cess, 8 Cumb.L.Rev. 403, 426-40 (1977) (dis­
cussing trend toward expanded confronta­
tion right). In light of that trend, we con­
clude that, in 1978, reasonably competent 
counsel reasonably could have anticipated 
the extension of Sixth Amendment rights, 
including the right of confrontation, to cap­
ital sentencing proceedings. The district 
court did not abuse its discretion by con­
cluding that Moore’s failure to include this 
claim in his first federal petition constitut­
ed an abuse of the writ.

3. Gardner v. Florida claim.
[10] -Moore’s claim, based on Gardner 

v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 
L.Ed.2d 393 (1977), is that the sentencing 
judge imposed the death penalty based in 
part on a presentence investigation report 
that neither petitioner nor his counsel had 
“ any meaningful opportunity to review, 
correct, or supplement,” in violation of the 
Eighth and Fourteenth amendments. This 
claim obviously is not based on any alleged 
new legal development because Gardner 
was decided before Moore filed his first 
federal petition.

This claim has an unusual procedural 
history. Moore presented this claim in his 
first state habeas petition and the state 
court rejected the claim on the merits, find­
ing that Moore’s trial counsel had received 
a copy of the report prior to his sentencing 
hearing. When Moore filed his first feder­
al petition in November 1978, he did not 
include a Gardner claim. This omission 
appears to have been deliberate because 
the claim is noted in the procedural history 
portion of his petition and because, at the 
time he filed his first federal petition,

Moore was represented by the same attor­
ney, James C. Bonner, Jr., who had pre­
pared Moore’s first state habeas petition. 
Moore did not attempt to add his Gardner 
claim to his first federal petition until Octo­
ber 1980, when his newly appointed habeas 
counsel sought leave to amend the petition. 
The district court denied Moore’s motion 
for leave to amend the petition to add the 
Gardner claim, citing in support thereof 
Moore’s delay in bringing the claim to fed­
eral court, explicit reference to the claim in 
the procedural history portion of his origi­
nal petition which indicated that Moore was 
fully aware of it when he filed his first 
petition, and continuous representation by 
counsel during his state and federal collat­
eral attacks. Blake v. Zant, 513 F.Supp. 
772, 805 (S.D.Ga.1981). Without specifical­
ly addressing the issue, the district court, 
in denying Moore’s motion, indicated its 
belief that the Gardner claim was merit­
less:

[Cjounsel made explicit reference to the 
presentencing report issue in the original 
habeas petition, thus demonstrating be­
yond doubt that this matter had been 
considered by him and rejected as a basis 
for relief before this Court. Counsel’s 
decision cannot be seen as unfounded. 
This question was considered at length 
by the state habeas tribunal. Testimony 
was received from [Moore’s trial counsel] 
and an affidavit was introduced from the 
officer who prepared the report. Upon 
examining this evidence and the trial 
transcript, which appears to show that 
the report was turned over to [Moore’s] 
trial counsel, the Court ruled adversely 
to the petitioner. No new evidence has 
been suggested which would cast doubt 
on this determination.

Id. (citation omitted). Clearly, the court 
viewed the claim as having been litigated 
fully and correctly in the state court. The 
Eleventh Circuit affirmed the district 
court’s denial. Moore v. Balkcom, 716 
F.2d 1511, 1527 & n. 15 (11th Cir.1983) (on 
rehearing). Moore raised the issue again 
in his second federal petition, and the dis­
trict court denied the claim as an abuse of 
the writ. Moore v. Zant, 734 F.2d 585, 598 
(11th Cir. 1984) (district court opinion at­
tached).



1513MOORE v. ZANT
Cite m  8*5 F Jd  1*97 (11th Cir. 1989)

Moore argues that his failure to raise 
this claim in his first federal petition can­
not be considered an abuse of the writ in 
light o f his attempt to amend that petition 
to add the claim. Alternatively, he asserts 
that even if his conduct were to be con­
sidered abusive, the “ ends of justice” man­
date consideration of this claim on its mer­
its. In contrast, the State contends that 
Moore did abuse the writ by failing to raise 
this issue properly before the district court 
and that, in any event, the “ ends of justice” 
do not require consideration of its merits.

We need not determine whether Moore’s 
attempt to amend his earlier petition ex­
cused his omission of the Gardner claim, 
because we conclude that the claim is mer­
itless. Moore had a full and fair opportuni­
ty to litigate the claim in his state habeas 
proceedings, but presented no evidence in 
support of it Instead, the record devel­
oped in the state habeas proceedings dem­
onstrates that Moore’s counsel was 
presented with a copy of the presentence 
investigation report prior to his sentencing 
hearing; that his counsel requested and 
was given a recess to review the report; 
and that, upon reconvening, neither Moore 
nor his counsel voiced any objection to the 
contents of the report Moore now seeks 
in his second habeas petition in federal 
court to present evidence that certain infor­
mation upon which the trial court relied in 
sentencing him to death was erroneous, but 
he asserts no reason why he failed to 
present such evidence when he had a full 
and fair opportunity to do so in the state 
collateral proceedings. Accordingly, we 
conclude that the district court did not 
abuse its discretion in dismissing the claim.

Additionally, assuming that Moore’s fail­
ure to include the Gardner claim in his 
first federal habeas petition was abusive, 
we observe that the “ ends of justice” do 
not entitle Moore to relief on the Gardner

16. On appeal, Moore also challenges the district 
court's disposition of two additional claims. 
First, Moore asserts that the district court 
abused its discretion in concluding that he 
abused the writ by failing to include in his first 
federal petition his claim that he was denied 
effective assistance of trial counsel at the sen­
tencing phase of his proceedings. An examina­
tion of the record in this case reveals that the

claim even had he not had an opportunity 
to present it. Historically, to prove that 
the “ ends of justice” require consideration 
of an otherwise abusive claim, a petitioner 
had to show that the “ alleged error pre­
cluded the development of true facts or 
resulted in the admission of false ones on a 
material question involving the sentence.” 
See Ritter v. Thigpen, 828 F.2d 662, 666 
(11th Cir. 1987). In Kuhbnann v. Wilson, 
477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 
(1986), however, a plurality of the Supreme 
Court suggested that a petitioner must 
make a “ colorable showing of factual inno­
cence,” id. 106 S.Ct. at 2627, in order to 
prove that the “ ends of justice” required a 
consideration of the abusive claim. We 
need not decide which of these tests gov­
erns, for we conclude that Moore has failed 
to satisfy either test. Under Georgia law, 
a defendant may be sentenced to death 
even if the only aggravating circumstance 
present is that the murder was committed 
during the course of an armed robbery. 
See Jones v. State, 243 Ga. 820, 256 S.E.2d 
907, 914 (1979). By attacking only that 
portion of the presentence investigation re­
port which dealt with the accuracy of facts 
supporting the finding that nonstatutory 
aggravating circumstances were present, 
Moore has not successfully demonstrated 
that his sentence would not have been the 
same even if he prevailed on his argument 
regarding the nonstatutory aggravating 
circumstances. See Dugger v. Adams, 489
U.S. ------, ------ , 109 S.Ct. 1211, 1217 n. 6,
103 L.Ed.2d 435 (1989). Without such 
proof, Moore cannot make a “ colorable 
showing of factual innocence” of the death 
sentence imposed in this case, nor can he 
demonstrate that the error in the sentenc­
ing proceeding which he challenges affect­
ed a “ material question involving the sen­
tence.” Consequently, we reject his argu­
ment that the “ ends of justice” require 
consideration of his otherwise abusive 
Gardner claim.16

ineffectiveness issue, including the performance 
of counsel at the sentencing phase, was exam­
ined in detail by the trial court in its order 
denying the first state habeas petitionr More­
over, Moore offers no proof that would excuse 
his neglect in failing to raise this claim in his 
first federal petition. Accordingly, we hold that 
the court did not abuse its discretion in finding



1514
885 FEDERAL REPORTER, 2d SERIES

III.
For the foregoing reasons, the district 

court’s order dismissing Moore’s second 
federal habeas petition as an abuse of the 
writ is AFFIRMED.

RONEY, Chief Judge, specially 
concurring:

I concur in the result reached by the in 
banc court, but for different reasons The 
Supreme Court remanded this case for re­
consideration under the principles set forth 
in Teague v. Lane, —  U.S. -, 109 S C ' 
1060 103 L.Ed.2d 334 (1989). I think the 
court should address the question posed by 
the Supreme Court on remand: How does 
the Teague decision affect the decision in 
this case? The court should answer this 
question even if it does then change the 
prior analysis of the abuse of the writ 
without regard to Teague.

The Supreme Court remand affords this 
Court the opportunity to determine if a 
Teague analysis would make it unneces­
sary to reach the abUsfc of the wnt defense, 
or to consider how Teague might affect our 
abuse of the writ decision. We should 
make that determination. The decision not 
to reach Teague because of our abuse of 
the writ decision does not respond to the 
Supreme Court’s remand.

Teague questions whether you would 
reach the merits of the issues asserted. As 
Judge Cox has pointed out, on a second 
petition alleging claims not previously as­
serted, the petition may be dismissed with­
out resort to an abuse of the writ defense, 
if the records and pleadings show that the 
claim is without merit. Sanders v. United 
States, 373 U.S. 1, 83 S.Ct 1068, W 
L Ed 2d 148 (1963); Stephens v. Kemp, <21 
F 2d 1300 (11th Cir.1983), cert, denied, 469 
U.S. 1043, 105 S.Ct. 530, 83 L.Ed.2d 417 
(1984). If under Teague, the merits Oi an 
issue would not be reached, the petition can 
be dismissed without getting to the abuse

of the writ defense. This is precisely the 
way the prior opinion of this court and the 
present opinion handle the discriminatory 
application of the death penalty argument. 

Petitioner has sought the benefit o f the 
Baldus study. The district court held it 
was barred on abuse grounds. We do 
not examine this in detail because the 
Baldus study was rejected in McCZes/tcy 
v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 
L.Ed.2d 262 (1987).

Moore v. Kemp, 824 F.2d 847 857 (11th 
Cir.1987). See footnote 16 in Judge Cox s 
opinion.

Thus, on any second petition for habeas 
corpus relief, before reaching the abuse of 
the writ issue, a court could look at the 
new claims asserted in the light of Teague. 
Th« court would determine if the claim 
asserted would establish a new principle of 
law that has not been applied previously to, 
the facts alleged, and if so, whether that 
principle falls into the category of proce­
dural rules which under Teague would not 
be applied retroactively to all similarly situ­
ated defendants. If the rule would not be 
so applied, the petition should be dismissed 
without reaching the merits and without 
regard to whether there was in fact an 
abuse of the wnt.

The in banc court should approach this 
remand in that way. I realize that i f  the 
court followed this analysis, and if  it 
reached the same conclusion which I reach, 
it would not be necessary to revisit the 
abuse of the writ issue and might deprive 
the court of the opportunity to reject the 
reasoning of the prior in banc opinion. 
This could be dealt with as an alternative 
holding, however, as we often do when we 
are trving to decide all issues so that a 
reversal in part would not require reconsid­
eration by the in banc court. If the court 
disagreed with my Teague analysis, then it 
would be within its authority to review and

that the claim was barred under abuse of the 
writ principles.

Second, Moore challenges the district court s 
rejection of his claim that the death penalty is 
applied in Georgia in a racially discriminatory 
manner. Moore's claim, which is based on he 
Baldus study, was not raised in Moores first 
state or first federal habeas petitions. The dis­

trict court held that the claim was barred on 
abuse grounds. Pretermitting discussion of 
whether the claim was barred on & ound* °  
either procedural default or abuse of lhe 
we dechne to examine this claim ‘n 
cause the Baldus study was rejected in McCte- 
key v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 
L_Ed.2d 262 (1987).



MOORE v. ZANT 1515
Cite » »  885 F Jd  1497 (llth C lr . 1989)

In discussing the second exception tochange its prior decision as to the abuse of 
the writ standard. I would suggest that 
because this case has been pending so long, 
the court ought to try to wrap it all up in 
this decision.

Different judges will, o f course, interpret 
Teague in different ways until the contours 
of that decision have been developed by the 
Supreme Court. It appears to me that 
Teague did two things: first, it instructed 
the courts on a new procedure as to the 
timing of a decision that a new constitu­
tional principle will be applied retroactively. 
Heretofore, whether a decision is to apply 
retroactively to habeas corpus petitioners 
has been made after the principle has been 
announced in a habeas corpus case. Al­
ways the petitioner involved received the 
benefit of the rule, but it was left to a later 
case to determine whether it would be 
available to other defendants in a collateral 
attack on a final conviction. Teague holds 
that a court should first determine whether 
a new principle espoused by a habeas cor­
pus petitioner would be applied to other 
habeas corpus petitioners. If it would not 
be so applied, .then the court should not 
consider whether to adopt such a principle.

Second, the Court set forth the standard 
by which to judge which principles would 
be given retroactive effect to habeas cor­
pus petitioners. Noting that the Court has 
made a distinction between direct review 
and collateral review for retroactivity of 
new principles, the Court adopted Justice 
Harlan’s view of retroactivity for cases on 
collateral review.

First, a new rule should be applied retro­
actively if it places “ certain kinds of pri­
mary, private individual conduct beyond 

t the power of criminal law-making author­
ity to proscribe.” Mackey [v. U.S.], 401 
U.S. [667], at 692 [91 S.Ct. 1160, 1180, 28 
L.Ed.2d 404 1971] (separate opinion). 
Second, a new rule should be applied 
retroactively if it requires the observance 
of “ those procedures that . . .  are ‘implic­
it in the concept of ordered liberty. 
Id., at 693, 91 S.Ct. at 1180 (quoting 
Palko v. Connecticut, 302 U.S. 319, 325, 
58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) 
(Cardozo, J.)).

Teague,---- U.S. a t ------- , 109 S.Ct. at 1073,
103 L.Ed.2d <it 353.

non-retroactivity, the one that is argued to 
be applicable here, the Court articulated 
various formulations of the kind of princi­
ple that would meet the standards of that 
exception.

“ [T]he Court never has defined the scope 
of the writ simply by reference to a 
perceived need to assure that an individu­
al accused of crime is afforded a trial 
free of constitutional error.” Kuhl- 
mann v. Wilson, 477 U.S. 436, 447, 106 
S.Ct. 2616, 2623, 91 L.Ed.2d 364 (1986) 
(plurality opinion).

Application of constitutional rules not in 
existence at the time a conviction became 
final seriously undermines the principal 
of finality which is essential to the opera­
tion of our criminal justice system. 
Without finality, the criminal law is de­
prived of much of its deterrent effect.

The “ costs imposed upon the State[s] 
by retroactive application of new rules of 
constitutional law on habeas corpus . 
generally far outweigh the benefits of 
this application.” [Solem y.] Stumes, 
465 U.S. [638], at 654 [104 S.Ct. 1338, 
1347, 79 L.Ed.2d 579 1984] (Powell, J., 
concurring in judgment).

The language used by Justice Harlan in 
Mackey leaves no doubt that he meant 
the second exception to be reserved for 
watershed rules of criminal procedure: 
“Typically, it should be the case that any 
conviction free from federal constitution­
al error at the time it became final, will 
be found, upon reflection, to have been 
fundamentally fair and conducted under 
those procedures essential to the sub­
stance of a full hearing. However, in 
some situations it might be that time and 
growth in social capacity, as well as judi­
cial perceptions of what we can rightly 
demand of the adjudicatory process, will 
properly alter our understanding of the 
bedrock procedural elements that must 
be found to vitiate the fairness of a par­
ticular conviction. For example, such, in 
my view is the case with the right to



885 FEDERAL REPORTER, 2d SERIES1516
counsel at trial now held a necessary 
condition precedent to any conviction for 
a serious crime.” 401 U.S. at 693-694,
91 S.Ct. at 1180-81 (emphasis added).

In Desist [v. U.S., 394 U.S. 244, 89 
S.Ct. 1030, 22 L.Ed.2d 248 1969], Justice 
Harlan had reasoned that one of the two 
principal functions of habeas corpus was 
“ to assure that no man had been incar­
cerated under a procedure which creates 
an impermissibly large risk that the inno­
cent will be convicted,” and concluded 
“ from this that all ‘new’ constitutional 
rules which significantly improve the pre­
existing factfinding procedures are to be 
retroactively applied on habeas.” 394 
U.S. at 262, 89 S.Ct. at 1041.

We believe it desirable to combine the 
accuracy element of the Desist version of 
the second exception with the Mackey 
requirement that the procedure at issue 
must implicate the fundamental fairness 
of the trial.

Finally, we believe that Justice Har­
lan’s concerns about the difficulty in 
identifying both the existence and the 
value of accuracy-enhancing procedural 
rules can be addressed by limiting the 
scope of the second exception to those 
new procedures without which the likeli­
hood of an accurate conviction is serious­
ly diminished.

Because we operate from the premise 
that such procedure would be so central 
to an accurate determination of inno­
cence or guilt, we believe it unlikely that 
many such components of basic due pro­
cess have yet to emerge. We are also of 
the view that such rules are “ best illus­
trated by recalling the classic grounds 
for the issuance of a writ of habeas 
corpus— that the proceeding was domi­
nated by mob violence; that the prosecu­
tor knowingly made use of perjured testi­
mony; or that the conviction was based 
on a confession extorted from the defen­
dant by brutal methods.” Rose v. Lun­
dyt, 455 U.S. 509, 544, 102 S.Ct. 1198, 
1217, 71 L.Ed.2d 379 (1982) (Stevens, J., 
dissent) (footnotes omitted).

Because the absence of a fair cross 
section on the jury venire does not under­
mine the fundamental fairness that must 
underlie a conviction or seriously dimin­
ish the likelihood of obtaining an accu­
rate conviction, we conclude that a rule 
requiring that petit juries be composed of 
a fair cross section of the community 
would not be a “ bedrock procedural ele­
ment” that would be retroactively ap­
plied under the second exception we have 
articulated.

Teague, —  U.S. a t ------ , 109 S.Ct. at 1073-
78, 103 L.Ed.2d at 354-359 (footnotes omit­
ted).

It is within the parameters of this lan­
guage that a court must judge whether a 
new principle, or an old principle applied in 
a new context, which for these purposes 
makes it a new principle, will be applied 
retroactively.

My examination in light of Teague of the 
claims made in this case convinces me that 
none of them would be extended retroac­
tively to all defendants similarly situated to 
Moore.

The first claim is that 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 be­
fore sentencing, a claim based on Estelle v. 
Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 
L.Ed.2d 359 (1981). Estelle held that the 
admission of a psychiatrist’s testimony at 
the death penalty sentencing proceeding 
violated the defendant’s privilege against 
compelled self-incrimination because the 
defendant was not advised before the ex­
amination that he had the right to remain 
silent and that any statement he made 
could be used against him.

Petitioner would have us extend that 
right to the post-conviction interview by a 
probation officer. The question is not 
whether the right against self-incrimination 
is fundamental, but whether the application 
of Miranda to a probation officer’s inter­
view is of the bedrock character, such a 
fundamental procedure “ without which the 
likelihood of an accurate conviction (sen­
tence) is seriously diminished. Teague,



1517MOORE v. ZANT
Cite u  8*5 F-2d 1497 ( l l lh C lr . 1989)

—  U.S. at ------ , 109 S.Ct. at 1077, 103
L.Ed.2d at 358.

The principle espoused by Moore, al­
though it might be appropriate, is not of 
the fundamental or bedrock character re­
quired by Teague in order for it to be 
applied to all defendants in a habeas attack 
upon their conviction. I would, therefore, 
affirm the denial of the petition asserting 
this claim for relief on the ground that the 
principle could not be applied to Moore.

The secpnd claim is that Moore was de­
nied the right to confront and cross-exam­
ine witnesses whose hearsay testimony was 
considered in the presentence report, based 
on our case of Proffitt v. Wainwright, 685 
F.2d 1227 (11th Cir.1982), cert, denied, 464 
U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 
(1983). A reading of the Proffitt opinion 
itself would seem to refute the notion that 
the principle there announced is a “bedrock 
procedural element” . In a thorough dis­
cussion of sentencing procedures, the opin­
ion notes that “ courts have declined to ap­
ply to sentencing most of the procedural 
rights guaranteed by the sixth amend­
ment.” 685 F.2d at 1252. The court then 
states that because the death penalty is 
different, capital sentencing procedures 
“ bring into play constitutional limitations 
not present in other sentencing decisions.” 
Id. at 1253. The holding of the court itself 
leaves room for the denial of the right in 
some situations: “ . . . .  the right to cross- 
examine adverse witnesses applies to capi­
tal sentencing proceedings, at least where 
necessary to ensure the reliability o f the 
witnesses' testimony.” Id. at 1255 (em­
phasis added).

We need not now decide whether it 
would have been inappropriate to announce 
the principle in Proffitt in a habeas corpus 
proceeding, had Teague been the law at 
that time. It is appropriate now, however, 
when the claim is that Moore should have 
been able to cross-examine all witnesses 
whose hearsay statements appeared in the 
presentence report, to determine whether 
this extension of Proffitt should be made 
retroactive.

If the principle of Proffitt is so bedrock 
and fundamental, why would it not be ex­
tended to all criminal defendants? Why

would not the right of cross-examination 
apply to all witnesses, without qualifica­
tion? If this court is to follow the lan­
guage of Teague and the obvious intend­
ment of words in that opinion, we would 
deny the retroactive application of the prin­
ciple which Moore wants us to establish in 
his case, absent some further guidance 
from the Supreme Court.

The third claim alleges that neither 
Moore nor his counsel was afforded ade­
quate opportunity to review the presen­
tence report prior to the sentencing pro­
ceeding in violation of Gardner v. Florida, 
430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 
(1977). This does not fit into the Teague 
analysis, because it does not ask us to 
adopt a new principle of law or apply an old 
principle of law to a new fact situation, 
which should be treated as new law. 
“ [T]his is not a claim based on alleged ‘new 
law’ declared since the first federal peti­
tion.” Moore, 824 F.2d at 855.' Teague 
only applies to “ new law” situations. 

[HJabeas corpus cannot be used as a 
vehicle to create new constitutional rules 
of criminal procedures unless those rules 
would be retroactively applied to all de­
fendants on collateral review.

Teague, —  U.S. a t ------, 109 S.Ct. at 1078,
103 L.Ed.2d at 360. The word “ new” is at 
the center of the Teague analysis.

As to this Gardner issue, in the prior 
opinion of the in banc court, we said that 

We cannot say that the district court, 
in ruling on Moore’s second petition, 
erred in finding that the failure to in­
clude this claim in the first petition was 
an abuse of the writ.

Moore, 824 F.2d at 856. I agree with that 
decision.

The court then vacated the denial of the 
Gardner claim for fresh consideration un­
der the “ ends of justice” principle. In my 
judgment, that decision was based on the 
fact that the case was going back to the 
district court anyway, and not on any no­
tion that the defendant would be entitled to 
any- relief on that issue alone. I cannot 
fault the way this court now handles the 
issue. There being an abuse of the writ, I 
would affirm the district court’s decision on 
this point.



1518 885 FEDERAL REPORTER, 2d SERIES

On appeal, Moore also challenged the 
district court’s disposition of his claim that 
his counsel rendered ineffective assistance 
at the sentencing phase of his trial and that 
the Georgia death penalty was applied in a 
racially discriminatory manner. I agree 
with the treatment of these issues in foot­
note 16 of the majority opinion, which is 
the same resolution reached by the prior in 
banc panel. Moore, 824 F.2d at 857.

For these reasons, I agree that the judg­
ment of the district court should be af­
firmed.

HILL, Circuit Judge, concurring:
I agree with what Chief Judge Roney 

has written. His approach—to determine
under Teague v. Lane, —  U.S. ------ , 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989) whether 
the petitioner’s asserted constitutional er­
rors would be applicable to the case before 
undertaking an abuse of the writ analy­
sis—is clearly the better approach in this 
case, remanded to us by the Supreme Court 
for our reconsideration in the light o f Teag­
ue. I come to no firm conclusion as to 
whether, in all cases, the Teague analysis 
should be a precedent to deciding whether 
or not the petition constitutes an abuse of 
the writ.

The opinion by Judge Cox is the proper 
opinion for those who think that the abuse 
of the writ issue is to be reached. It is not 
improper for each active judge on an en 
banc court to face and resolve the issues 
before the court. If a judge now on this 
court considers and decides an issue to a 
result different from the result that had 
theretofore been reached by an earlier 
member of the court, the judge should vote 
his conviction. It would be wrong for a 
judge to refuse to grant habeas corpus 
relief to a death penalty petitioner merely 
because the court had on an earlier, now 
vacated, occasion denied relief and the new 
judge wished to avoid being tagged as 
whimsical. It would be just as wrong for 
the judge to fail to vote his or her convic­
tion should that vote be to deny relief.

As stated, I concur in what Chief Judge 
Roney has written and thus do not reach

1. Written by Judge Cox and joined by Judges

the abuse of the writ issue. I see no 
reason to believe'that, were I to reach the 
issue, the views expressed in my earlier 
dissent would be changed. Moore v. 
Kemp, 824 F. 2d 847, 877 (11th Cir.1987), 
Hill, J., dissenting.

J.L. EDMONDSON, Circuit Judge, 
concurring:

I concur in the result Judge Cox has 
reached. On the question of abuse of the 
writ generally, Judge Cox’s opinion seems 
to be consistent with my view as set out in 
Gunn v. Newsome, 881 F.2d 949, 969 (11th 
Cir.1989) (Edmondson, J., dissenting). For 
that reason, I also concur in his opinion.

KRAVITCH, Circuit Judge, 
dissenting:

The Supreme Court has remanded this 
case to us ‘ ‘for further consideration in
light of Teague v. Lane, 489 U .S.------ , [109
S.Ct. 1060, 103 L.Ed.2d 334] (1989).”  Yet 
the Cox plurality opinion 1 effectively ig­
nores Teague. I believe that it is our duty 
to follow the Supreme Court's remand or­
der and consider Teague, that it is improp­
er for us to revisit issues that we previous­
ly resolved en banc, and that our prior en 
banc determination in this case was correct. 
Accordingly, I dissent.

Because Judge Johnson has written a 
dissent detailing the effect of Teague on 
Moore’s petition, I will not repeat what he 
has already said. I join in parts I, II—B, 
II-C-1, II—C—2, III—A, III—C, and IV of 
Judge Johnson’s dissent. I write separate­
ly because I disagree with his analysis of 
certain issues.

I.
OUR ROLE ON REMAND

Two years ago this court, sitting en banc, 
concluded that Moore’s failure to assert his 
Estelle and Proffitt claims in his first fed­
eral habeas petition was not an abuse of 
the writ. The en banc court also directed 
the district court to determine whether the 
ends of justice required the court to consid­
er Moore’s Gardner claim. Now, Judge 
Cox, apparently believing that he is writing

Tjoflat, Fay, Vance and Edmondson.



1519MOORE v. ZANT
Cite u  885 F^d 1497 (lltliC lr. 1989)

on a clean slate, simply concludes that our 
prior decision was wrong. Yet the facts 
have not changed in the interim, nor has 
the relevant law.

The plurality clutches at the fact that the 
Supreme Court vacated our prior opinion 
and remanded the case for our reconsidera­
tion in light of Teague. The only way for 
the Court to have us consider the unique 
way Teague interacts with the abuse of the 
writ doctrine, however, was by vacating 
our prior opinion. We should draw no in­
ference from a remand order, one way or 
the other, as to the Court’s view of the 
correctness of our prior en banc opinion.2 
We should, however, interpret the remand 
order as meaning what it says: our task on 
remand is to reconsider our prior decision 
in light of Teague, that is, whether Teague 
affected our earlier opinion. We show no 
greater fealty to the Supreme Court than 
when we construe the Court to mean what 
it says, but the plurality has chosen a dif­
ferent path.

Of course, we have the power to revisit 
any issue determined by the prior en banc 
court. In my view, however, we should not 
exercise that power, particularly in this 
case, where doing so flouts the plain mean­
ing of the Supreme Court’s remand order.

Courts have long recognized that princi­
ples of finality, fairness, and efficiency 
counsel against redetermining issues that 
have already been decided by the same 
court. Under the rubric “ law of the case,” 
these principles give rise to the rule that 
once a court has decided an issue in a case, 
that issue remains settled unless or until it

2. The Cox opinion suggests that simply applying 
Teague to our prior opinion must implicitly rest 
on the belief that the Supreme Court has ap­
proved of our prior determination. The re 
mand order does not constitute an implicit ap­
proval of our prior opinion. Nor does it consti­
tute implicit disapproval or constitute a di­
rection to "go back and do whatever you want." 
The remand order means what it says, no more, 
no less: "reconsider your prior opinion in light 
of Teague."

3. In Penry v. Lynaugh, ----  U.S. ------, 109 S.Ct.
2934, 106 L.Ed.2d 256 (1989), the Supreme 
Court applied Teague to a capital case, settling a 
question that Teague itself had not resolved: the 
nonretroactivity principles of Teague apply to 
capital cases.

4. By contrast, a "new law” claim in the abuse of
the writ context means a claim seeking the

is reversed or modified by a higher court. 
Unaware of the irony, the Cox opinion ig­
nores such principles of finality, while pur­
porting to vindicate those same principles. 
See, e.g., ante, at 1504.

II.

APPLYING TEAGUE TO 
MOORE’S PETITION

A.
The Georgia Supreme Court affirmed 

Moore’s conviction in 1975. When the Su­
preme Court denied Moore’s petition for 
certiorari on October 4, 1976 his conviction 
became “ final” for the purposes of our 
analysis under Teague. 3 Cf. Griffith v. 
Kentucky, 479 U.S. 314, 107 S.Ct. 708, 712 
n. 6, 93 L.Ed.2d 649 (1987) (“ By ‘final,’ we 
mean a case in which judgment of convic­
tion has been rendered, the availability of 
appeal exhausted, and the time for a peti­
tion for certiorari elapsed or a petition for 
certiorari finally denied.” ).

Having ascertained the date Moore’s con­
viction became final, the next step is to 
determine whether a claim he is raising is a 
“ new rule” claim, i.e., a claim in which he 
seeks the benefit of a rule announced after 
his conviction became final.4 If a claim is 
one seeking the benefit of a “ new rule,” 
then under Teague the federal habeas 
court may not entertain the claim unless 
the rule fits into one of two exceptions.5
See Penry v. Lynaugh, —  U.S. ------ , 109
S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989).

benefit of a rule announced after the petitioner 
filed a prior habeas petition.

5. Judge Johnson suggests that Teague and the 
principles of nonretroactivity are an affirmative 
defense that may be waived. I disagree. Per­
mitting a state to waive Teague in some cases 
and not in others would create the very unfair­
ness and disparate treatment of similarly situ­
ated petitioners that Teague sought to prevent.
I believe that a federal habeas court must con­
duct an analysis of whether Teague applies as a 
threshold matter, before reaching, for example,
the abuse of the writ. See Penry v. Lynaugh,----
U.S. — , 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 
(1989) ("Penry is currently before the Court on 
his petition in federal court for a writ of habeas 
corpus. Because Penry is before us on collat­
eral review, we must determine, as a threshold 
matter, whether granting him the relief he seeks



885 FEDERAL REPORTER, 2d SERIES

I agree with Judge Johnson that Moore’s 
Proffitt and Gardner claims are “ new” for 
retroactivity purposes. I also agree that 
under Battie v. Estelle, 655 F.2d 692 (5th 
Cir. 1981), Moore’s Estelle v. Smith claim is 
not “ new” for retroactivity purposes. 
Therefore, we may entertain the Proffitt 
and Gardner claims only if they fall into 
one of the two exceptions outlined in Teag­
ue. On the other hand, Teague does not 
affect the Estelle v. Smith claim at all.

I disagree with Judge Johnson’s sugges­
tion that because a claim is not “ new law” 
for retroactivity purposes it may not be 
“ new law” for purposes of the abuse of the 
writ, or vice versa.6 Thus', I do not per­
ceive any tension between our decision in 
Battie holding that Estelle v. Smith is not 
new law for retroactivity purposes and our 
prior en banc ruling that the Estelle v. 
Smith claim was a new law claim for abuse 
of the purposes.

I will not rush in where the Supreme 
Court has hesitated to tread and try to 
define what is “ new law” for either re­
troactivity or abuse of the writ purposes.7 
For this dissent it will suffice simply to 
note that the equitable principles underly­
ing the abuse of the writ properly focus on 
the petitioner’s conduct, or that of his coun­
sel if he was not travelling pro se. See 
generally Gunn v. Newsome, 881 F.2d at 
957-96 (11th Cir. 1989) (en banc). By con­
trast, the conduct o f the habeas petitioner 
or his attorney is irrelevant to determining 
whether a rule of law is new for retroactiv­
ity purposes. The retroactivity analysis fo-

would create a 'new rule.' Teague v. Lane. 489
U.S.------, ------, 109 S.Ct. 1060.------ , 103 L.Ed.2d
334 (1989). Under Teague, new rules will not 
be applied or announced in cases on collateral 
review unless they fall into one of two excep­
tions. Id. at ------, 109 S.Ct. at ------. ).

6. 1 also disagree with Judge Johnson’s reading 
of the Supreme Court's remand as a suggestion 
"that only decisions which are new law for 
retroactivity purposes may excuse a successive 
petition.’’

7. See, e.g„ Teague, 109 S.Ct. at 1070 (‘It is ad­
mittedly often difficult to determine when a 
case announces a new rule, and we do not 
attempt to define the spectrum of what may or 
may not constitute a new rule for retroactivity 
purposes.”) (plurality opinion).

1520
cuses solely on the relationship of the new 
rule to prior law:

In general, however, a case announces a 
new rule when it breaks new ground or 
imposes a new obligation on the States or 
the Federal Government. To put it dif­
ferently, a case announces a new rule if 
the result was not dictated by precedent 
existing at the time the defendant’s con­
viction became final.

Teague, 109 S.Ct. at 1070 (citations omit­
ted) (plurality opinion). We should not 
conflate the questions of whether a rule is 
new for nonretroactivity purposes as op­
posed to abuse of the writ purposes.

B.
Because both the Gardner and Proffitt 

claims are new for retroactivity purposes, 
the next step is to determine whether the 
claims fit into either of the two exceptions 
presented in Teague,8 

The first exception for new rules that 
will be applied retroactively is where the 
new rule places “ certain kinds of primary, 
private individual conduct beyond the pow­
er of the criminal law-making authority to 
proscribe.” Teague, 109 S.Ct. at 10 <5 (cita­
tion omitted) (plurality opinion). This ex­
ception is plainly not applicable to either 
the Proffitt or Gardner claim.

The second exception to Teague's gener­
al rule that a new rule will not be applied 
retroactively on collateral review encom­
passes fundamental rules “ without which 
the likelihood of an accurate conviction is 
seriously diminished.” Teague, 109 S.Ct. 
at 1076-77 (plurality opinion).’

8. The Estelle v. Smith claim drops out of my 
Teague analysis because it is not new law for 
retroactivity purposes, therefore Teague is not 
implicated.

9. Justice Harlan explained why a fundamental 
rule should be applied retroactively in Mackey 
v. United States:

[I]n some situations it might be that time and 
growth in social capacity, as well as judicial 
perceptions of what we can rightly demand of 
the adjudicatory process, will properly alter 
our understanding of the bedrock procedural 
elements that must be found to vitiate the 
fairness of a particular conviction. For exam­
ple, such, in my view is the case with the right 
to counsel at trial now held a necessary condi­
tion precedent to any conviction for a serious 
crime.



1521MOORE v. ZANT
Cite u  885 F Jd  1497 (U th  Clr. 1989)

I agree with Judge Johnson that both the 
Gardner and Proffitt claims fit within the 
terms of this second exception. Both are 
based on the right of confrontation, and 
our adversarial system—unlike the inquisi­
torial method—depends above all else upon 
the right of confrontation to arrive at an 
accurate result.

III.

ABUSE OF THE WRIT
Because the Gardner and Proffitt claims 

may be applied retroactively on petitions 
for collateral relief, as a threshold matter 
these claims are available to Moore. Be­
cause the Estelle v. Smith claim is not 
“new” for retroactivity purposes, Teague 
does not come into play, and that claim is 
also, as a threshold matter, available to 
Moore. The next step is tp determine 
whether Moore his abused the writ, and 
thus disentitled himself from presenting 
these claims through the equitable remedy 
of the writ of habeas corpus. See, e.g., 
Sanders v. United States, 373 U.S. 1, 17, 
83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); 
Gunn v. Newsome, 881 F.2d at 954-56.

I agree with Judge Johnson that Moore 
did not abuse the writ in failing to raise the 
Proffitt claim. While Judge Johnson sug­
gests that the Supreme Court's discussion 
of new law for retroactivity purposes impli­
cates our prior en banc determination that 
Moore had not abused the writ with respect

Mackey, 401 U.S. 667, 693—94, 91 S.Ct. 1160, 
1180, 28 L.Ed.2d 404 (1971) (separate opinion) 
(quoted in Teague, 109 S.Ct. at 1075—76 (plurali­
ty opinion)).

A rule must implicate the accuracy of a con­
viction in order to meet this second exception to 
Teague s rule of nonretroactivity because one of 
the main purposes of the writ of habeas corpus 
is, as Justice Harlan noted in Desist, "to assure 
that no man has been incarcerated under a 
procedure which creates an impermissibly large 
risk that the innocent will be convicted. Thus 
"all ‘new’ constitutional rules which significant­
ly improve the pre-existing factfinding proce­
dures are to be retroactively applied on habeas. 
Desist v. United States, 394 U.S. 244, 262, 89
S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) (Harlan, 
J., dissenting) (quoted in Teague, 109 S.Ct. at 
1076 (plurality opinion)).

The Teague plurality fashioned the second ex­
ception by combining these two concerns, and 
"limiting the scope of the second exception to 
those new [fundamental] procedures without

to his Estelle v. Smith claim, I do not. In 
my view the prior en banc court was cor­
rect and Teague does not affect that deter­
mination.10

I also agree with Judge Johnson that the 
district court should consider whether the 
ends of justice call for the court to enter­
tain Moore’s Gardner claim. As the prior 
en banc court made clear, Moore's Gard­
ner claim does indeed have merit. Moore 
has raised a genuine factual dispute as to 
whether and when his counsel received the 
presentence investigation report, a report 
which indisputably contained many inaccu­
racies.

In finding the Gardner claim without 
merit, the majority reasons that because a 
defendant may be sentenced to death with 
only one aggravating circumstance, e.g., 
committing the murder during the commis­
sion of a felony, Moore must challenge that 
very aggravating circumstance for the 
ends of justice to apply. I emphatically 
disagree with this suggestion. The court 
that imposed the death penalty on Moore 
had an inaccurate presentence investigation 
report. The very purpose of this report is 
to enable the sentencing court to make a 
reasoned and informed decision on whether 
to impose that most final of penalties. The 
choice to impose the death penalty based on 
all the available and accurate information 
is the state’s. Does the majority really 
believe that the state court would not be

which the likelihood of an accurate conviction 
is seriously diminished." Teague, 109 S.Ct. at 
1076 (plurality opinion). Justice Stevens, how­
ever, while concurring in the use of Harlan s 
analytic framework, disagreed with the plurali­
ty's modification of the second exception, and 
adhered to Harlan's own view rejecting the link­
age of fundamental fairness to factual inno­
cence. In addition, Stevens noted that a touch­
stone of factual innocence would provide little 
guidance in certain important types of cases, 
such as those challenging the constitutionality 
of capital sentencing hearings." Teague, 109 
S.Ct. at 1080-81 (Stevens, J., joined by Black- 
mun, J.. concurring in part) (footnote omitted).

10. Although Chief Judge Roney and Judge Hill 
agree that the court first should have applied 
Teague to the issues presented before consider­
ing abuse of the writ, they do not agree with the 
five dissenting judges' conclusion that Teague 
does not bar Moore's claims.



885 FEDERAL REPORTER, 2d SERIES

justified in imposing a penalty of less than 
death once the inaccuracies of the presen­
tence investigation report were brought to 
the state’s attention? I Find it an intrusion 
into the proper role of the state courts for 
a federal court to step in and declare that 
the state must impose the death penalty 
unless Moore challenges all applicable ag­
gravating circumstances, and I know of no 
authority to support such an unprecedented 
rule. The ends of justice should require 
the district court to reach the merits of 
Moore’s Gardner claim.

IV.

CONCLUSION

The abuse of the writ issue decided by 
the court today was decided before by this 
court en banc; it was, however, decided the 
other way. This reversal of our previous 
decision is, at best, unseemly as there has 
been no intervening factual or legal devel­
opment to explain or excuse reconsidera­
tion of the abuse of the writ issue. The 
Supreme Court vacated our prior en banc 
decision for reconsideration in light of 
Teague. It did not give us carte blanche to 
reexamine the entire case.

Five years ago I dissented from the origi­
nal panel that affirmed the district court’s 
determination that Moore had abused the 
writ. Two years ago I joined the majority 
opinion of the en banc court explaining why 
Moore had not abused the writ. Even if I 
did not dissent from the result reached by 
the majority today, 1 would like to think 
that I would dissent from the decision to 
revisit our prior en banc opinion and to 
ignore the Supreme Court’s remand order. 
Accordingly, 1 once again dissent.

1. No single opinion commands a majority of the 
Court in this case. See plurality opinion of Cox, 
J.; concurring opinion of Roney, CJ. In discuss­
ing the reasoning of today’s decision, I will 
primarily address the plurality opinion. Chief 
Judge Roney’s special concurrence does respond 
to the Supreme Court's mandate, and addresses 
some of the issues I discuss below, although, for 
reasons discussed below, 1 do not agree with his 
conclusions. However, Chief Judge Roney’s

1522
JOHNSON, Circuit Judge, dissenting, 

in which HATCHETT, Circuit Judge 
joins and KRAVITCH, ANDERSON 
and CLARK, Circuit Judges, join in 
part

Because this Court1 ignores the Su­
preme Court’s mandate and rules contrary 
to its previous decision without rebriefing 
or reargument of the issues it decides, I 
must dissent

I. THE PURPOSE OF THE EN 
BANC REHEARING 

On July 27, 1987, this Court issued its en 
banc opinion reversing the district court’s 
dismissal on abuse of the writ grounds of 
all claims brought by Moore in his second 
habeas petition. See Moore v. Kemp, 824 
F.2d 847 (11th Cir.1987) (“ 1987 opinion” ). 
The Court held that Moore’s claims 
brought under Estelle v. Smith, 451 U.S. 
454, 101 S.Ct 1866, 68 L.Ed.2d 359 (1981), 
and Proffitt v. Wainwright, 685 F.2d 1227 
(11th Cir.1982), reh’g denied as modified, 
706 F.2d 311 (11th Cir.1983), cert, denied, 
464 U.S. 1003,104 S.Ct. 509, 78 L.Ed.2d 698 
(1983), should not have been dismissed be­
cause they were based on law unavailable 
to Moore at the time of his first petition. 
See Rule 9(b) Governing Section 2254 
cases, 28 U.S.C.A. Foil. § 2254. It also 
held that because a third claim, brought 
under Gardner v. Florida, 430 U.S. 349, 97 
S.Ct 1197, 51 L.Ed.2d 393 (1977), called 
into question the accuracy of the facts un­
derlying Moore’s sentence, it merited fur­
ther consideration on “ ends of justice" 
grounds. Cf. Smith v. Murray, X'l'l U.S. 
527, 538, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 
434 (1986). The Court then remanded 
Moore’s three claims to the district court. 
The state petitioned the Supreme Court for 
a writ of certiorari. On March 29, 1989, 
the Supreme Court vacated this Court’s

concurrence also accedes in, and thus effective­
ly joins, the plurality’s conclusions, reached in 
flagrant disregard of the Supreme Court s man­
date, on the abuse of the writ issues. See con­
curring opinion of Roney, CJ., at 1517. Thus, 
while I refer to "the plurality" in discussing 
specific aspects of the plurality's reasoning. I 
also refer generally to "the Court and the 
majority" in discussing generally the Court’s 
holding in this case.



1523MOORE v. ZANT
c u e  M 885 F Jd  1497 (llth C lr . 1989)

decision and remanded it for reconsidera­
tion in light of Teague v. Lane, —  U.S.
------ , 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989). See Zant v. Moore, —  U.S. ------ ,
109 S.Ct. 1518; 103 L.Ed.2d 922 (1989).

In the intervening time, decisions in this 
circuit, see, e.g., Tafero v. Dugger, 873 F.2d 
249, 251 (11th Cir. 1989); Gunn v. New- 
some, 851 F.2d 1294, 1296 (11th Cir. 1988), 
affd on reh’g, 881 F.2d 949 (11th Cir.1989); 
Ritter v. Thigpen, 828 F.2d 662, 665 (11th 
Cir. 1987); Mitchell v. Kemp, 827 F.2d 
1433, 1435 (11th Cir.), cert, denied, 483 
U.S. 1050, 108 S.Ct. 14, 97 L.Ed.2d 812 
(1987); Daugherty v. Dugger, 699 F.Supp. 
1517, 1520 n. 2 (M.D.Fla. 1988), and in other 
circuits, see, e.g., Hannon v. Maschner, 845 
F.2d 1553, 1557 (10th Cir.1988); Mercer v. 
Armontrout, 701 F.Supp. 1460, 1465 (W.D. 
Mo. 1988), appeal dismissed, 864 F.2d 1429 
(8th Cir.1988), have been rendered with 
Moore as their guide. In addition, numer­
ous unpublished decisions from this Court’s 
special docket of capital cases have relied 
on Moore’s formulation of abuse of the 
writ principles to grant and deny stays of 
execution.

Today, this Court rules without explana­
tion that its 1987 decision in Moore is a 
meaningless sport in the law. Neither Con­
gress, nor the Supreme Court, nor this 
Court have altered the standards used to 
judge abuse of the writ claims since this 
Court’s 1987 opinion. No new facts have 
been put before this Court since its 1987 
opinion issued. Petitioner is, in fact, in 
precisely the same position before this 
Court today as he was at the time of the 
1987 opinion. Moreover, the merits of this 
Court’s 1987 opinion have not been re-

2. As might be expected, given the Supreme 
Court's mandate, the parties below argued the 
meaning and application of Teague v. Lane. 
They were not asked to rebrief or reargue the 
abuse of the writ issues this Court redecides 
today. Presumably, the plurality's conclusions 
are based on briefs now more than five years 
old and the dim recollection (of those members 
of the Court who were there) of an oral argu­
ment which took place the same length of time 
ago.

3. The plurality purports to "adopt" a new rule. 
See at 1506; id. at 1505 ("Our task in this case is 
definitively to decide the standard by which 
courts of this circuit henceforth will judge the

briefed or reargued.2 No principled reason 
exists for the 1989 version of the Eleventh 
Circuit to rule differently from the 1987 
version of this Court. The majority’s ac­
tion in this case exhibits the sort of “ arbi­
trary discretion” in disregarding prior deci­
sions against which the Supreme Court has 
recently warned. See Patterson v. Mc­
Lean Credit Union, —  U.S. ------ , 109
S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989) 
(quoting The Federalist No. 78, at 490 (A. 
Hamilton) (H. Lodge ed. 1888)). Adherence 
to past decisions “ ensure[s] that the law 
will not merely change erratically, but will 
develop in a principled and intelligible fash­
ion. That doctrine permits society to pre­
sume that bedrock principles are founded 
in the law rather than in the proclivities of 
individuals....” Vasquez v. Hillery, 474 
U.S. 254, 265, 106 S.Ct. 617, 624, 88 L.Ed.2d 
598 (1986).

The fact that stare decisis is technically 
inapplicable to this case provides little sol­
ace to those members of the public and the 
bar who expect the law to encompass more 
“ than the proclivities of individuals.”  The 
approach of the plurality opinion in this 
case might be somewhat legitimate if it 
were announcing a new ruie of law. 
Moore’s claims would then seem to be dis­
missed by operation of law rather than by 
whim. However, the plurality applies the 
same law as did this Court in 1987—yet 
with a completely different result.3 By 
operation of no principle of which I am 
aware can this Court reach a result con­
trary to that which it reached under identi­
cal law and facts two years ago. Surely 
this constitutes the sort of “ arbitrary dis­
cretion” condemned by Patterson.

abusive nature of petitions alleging 'new law 
claims.") It applies an objective standard which 
"seeks to ascertain if reasonably competent 
counsel, at the time of filing of the first petition, 
reasonably should have anticipated a later 
change in the law." Id. at 1506. This is precise­
ly the same objective standard applied by this 
Court in its 1987 opinion. See 824 F.2d at 851 
(''[Moore] is chargeable with . . .  the knowledge 
that would have been possessed by reasonably 
competent counsel at the time of the first peti­
t i on . . .  [Reasonably competent counsel . . .  
could not reasonably have been expected to 
foresee (Moore's Estelle v. Smith claim] ); id. at 
852 (standard is what "counsel reasonably 
should have foreseen").



1524 885 FEDERAL REPORTER, 2d SERIES

The plurality’s failure to follow our earli­
er decision is even more unprincipled in 
view o f the fact that this case was not 
remanded "in light of” a Supreme Court 
decision involving abuse of the writ. Obvi­
ously, this Court would have to conform 
itself to new Supreme Court precedent. 
However, Teague v. Lane is not a case 
involving abuse of the writ, as the plurality 
recognizes. Instead of “ reconsiderfing] its 
opinion in light of Teague v. Lane," the 
plurality ignores that portion o f the Su­
preme Court’s mandate as surplusage. 
The Court’s remand in light of Teague is 
not meaningless. I would reaffirm this 
Court’s 1987 opinion and apply Teague to 
this case as I believe was contemplated by 
the Supreme Court’s order. Because appli­
cation o f Teague does not necessarily re­
sult in the dismissal of Moore’s petition, I 
set forth what I believe to be the proper 
disposition of the case.

II. THE APPLICATION OF TEAGUE
Teague establishes a bright-line rule for 

when a judicial decision creating "new law” 
will be applied retroactively in criminal 
cases. Defendants who have not yet com­
pleted the direct appeal process at the time 
of the announcement of a new rule will 
receive its benefit; defendants whose con­
victions are final will not The decision 
provides two exceptions, one o f which is 
applicable to this case. A rule will be 
applied retroactively to all defendants, on 
direct appeal or in collateral proceedings, if 
it concerns “ bedrock procedural elements” 
which enhance the accuracy of the trial 
court’s decision. See 109 S.Ct. at 1076-77.

The logic of the remand becomes clear 
when the procedural posture of this habeas 
case is examined. Because this is Moore’s 
second petition, he must first jump the 
Rule 9(b) hurdle. This Court’s 1987 opinion

4. The Supreme Court's order also necessitates 
inquiry into one of this Court’s holdings on the 
initial question of abuse of the writ. This 
Court's 1987 opinion held that Estelle v. Smith 
was an unforeseeable change in the law which 
excused Moore's failure to raise his claim in his 
prior petition. 824 F.2d at 853-54 Si n. 12. 
However, this Court previously held in the re­
troactivity context that Estelle v. Smith did not 
announce a new principle of law. See Battie v. 
Estelle, 655 F.2d 692, 697-99 (5th Cir.1981).

determined that Moore’s three claims were 
not barred as abuse of the writ, even 
though this is Moore’s second petition. 
This Court’s remand to the district court 
for consideration of Moore’s claims may 
have been premature because the retroac­
tivity of the cases on which Moore relied 
had not yet been addressed. Moore is enti­
tled to full consideration on the merits only 
if the cases on which he relies have retroac­
tive application. See Fleming v. Kemp, 
837 F.2d 940, 947 (11th Cir.1988), cert, de­
nied, ----  U.S. ------ , 109 S.Ct. 1764, 104
L.Ed.2d 200 (1989); see also Advisory Com­
mittee Note Rule 9(b) (“ fa] retroactive 
change in the law” may excuse “ failure to 
assert a ground in a prior petition” ). The 
Supreme Court's action allows this Court to 
address that threshold question.4

A. Waiver
At no time in these proceedings has the 

state claimed that the decisions relied upon 
by Moore should not be applied retroac­
tively to his sentencing in 1974. Moore 
argues that the state has therefore waived 
the opportunity to raise the defense of non- 
retroactivity. See Zant v. Moore, —  U.S.
------ , 109 S.Ct. 1518, 1519, 103 L.Ed.2d 922
(1989) (Blackmun, J., dissenting) (“ petition­
er did not raise non-retroactivity as a de­
fense to respondent’s claim for federal ha­
beas relief, and that defense therefore 
should be deemed waived” ). It appears 
that non-retroactivity is an affirmative de­
fense. See United States v. Francischine, 
512 F.2d 827, 830 (5th Cir.), cert denied. 
423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 
(1975) ("the court should not have con­
sidered the retroactivity of United States 
v. Maze [414 U.S. 395, 94 S.Ct. 645, 38 
L.Ed.2d 603 (1974) ] . . .  [t]he issue was not 
properly before the court as a defense to

The remand gives this Court the opportunity to 
consider whether a decision which is not "new 
law" for purposes of retroactivity may be 
deemed unforeseeable for purposes of excusing 
abuse of the writ. In other words, the remand 
may ask this Court to consider the adoption of a 
rule that any change in the law significant 
enough to excuse abuse of the writ must also 
constitute a "new rule" for purposes of retroac­
tivity. I discuss this issue below in Part 
11(C)(3).



1525MOORE v. ZANT
Cite u  885 F-2d 1497 (U th C lr. 1989)

the petition for revocation of probation” ).
In the habeas context, the defense of non­
retroactivity has been available since at 
least Linkletter v. Walker, 381 U.S. 618, 85 
S.Ct. 1731, 14 L.Ed.2d 601 (1965) (establish­
ing standard for determining propriety of 
retroactive application of new law). Al­
though Teague expressly modifies the 
Linkletter test in a manner which disad- 

1 vantages collateral litigants, it does not 
create a new defense which was previously 
unavailable to the state.

However, the state argues quite per­
suasively that it has not waived the de­
fense because the proper time to raise it 
has not arrived. In Moore’s case, the state 
pleaded abuse of the writ in immediate 
response to Moore’s petition. That shifted 
the burden to Moore to prove that his suc­
cessive petition was not abusive. See gen­
erally Ritter v. Thigpen, 828 F.2d 662 
(11th Cir.1987). Only the preliminary issue 
of abuse of the writ has been litigated thus 
far. The state claims that there has been 
no need to raise any defenses on the mer­
its, i.e., non-retroactivity, until the abuse 
issue is settled. Although no case directly 
addresses this issue, I assume arguendo 
that the state has not waived the defense.

B. The Applicability o f  Teague to Cap­
ital Cases

Raising another issue which would pre­
termit the application of Teague to his 
claims, Moore argues that Teague should 
not be applied at all in the capital sentenc­
ing context. The Supreme Court has re­
jected this argument. See Penry v. Ly-
naugh, —  U .S.------, 109 S.Ct. 2934, 2944,
106 L.Ed.2d 256 (1989) (applying Teague to 
capital cases). However, in doing so the

5. Teague provides for retroactive application of 
new procedural rules "without which the likeli­
hood of an accurate conviction is seriously di­
minished." Id., 109 S.Ct. at 1076-77. If this 
language is applied to the accuracy of a sen­
tence, then most important decisions in the capi­
tal sentencing context should be given retroac­
tive effect. See, e.g„ Hitchcock v. Dugger, 481 
U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) 
(accuracy of death sentence undermined by 
limitations on consideration of non-statutory 
mitigating factors); Gardner, supra, (accuracy 
of death sentence undermined by sentencer’s 
consideration of information unavailable to de­
fendant); Johnson v. Mississippi, 486 U.S. 578,

Court held that the exceptions to Teague 
apply in the capital context. Id. Only if the 
Teague exceptions are applied fairly to per­
mit retroactive application of procedural 
rules which enhance the accuracy of sen­
tences will the application of Teague to 
Moore’s claims pass constitutional muster.

C. The Teague Exceptions and Moore's 
Claims

Because Teague is applicable to Moore’s 
claims, this Court should tackle the ques­
tion of the retroactivity of the cases relied 
upon by Moore. I believe Teague would 
properly be applied in the following man­
ner:

1. Gardner
The Supreme Court, in Gardner v. Flor­

ida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 
393 (1977), held that capital defendants 
must have access to and an opportunity to 
explain or deny information which the state 
considers in sentencing.6 Teague provides 
for retroactive application of accuracy-en­
hancing procedural rules” which implicate 
the “ bedrock procedural elements” of a 
criminal conviction. Id., 109 S.Ct. at 1076. 
The principle enunciated in Gardner is 
clearly such a rule. This rule is meant to 
provide for better fact-finding through ad­
versarial procedure. Gardner allows cru­
cial information to be clarified and supple­
mented. The result is that the sentencer 
has an improved and more accurate view of 
the facts upon which the sentence should 
be based. Id. at 359, 97 S.Ct. at 1205 
(scrutiny of evidence to be presented dur­
ing the sentencing phase minimizes “ [t]he 
risk that some of the information accepted

108 S.Ci. 1981, 100 L.Ed.2d 575 (1988) (accuracy 
of death sentence undermined by consideration 
of uncounseled prior felony convictions).

6. I assume that Gardner represents new law for 
retroactivity purposes. See Penry, 109 S.Ct. at 
2944 ("a case announces a new rule when it 
breaks new ground or imposes a new obligation 
on the States or the Federal Government ) 
(quoting Teague, 109 S.Ct. at 1070). Gardner s 
requirements of access and opportunity to ex­
plain or deny information previously withheld 
from capital defendants undoubtedly imposed a 
"new obligation on the States.



1526 885 FEDERAL REPORTER, 2d SERIES

in confidence may be erroneous, or may be 
misinterpreted, by the investigator or by 
the sentencing judge” ). Under Teague, 
then, Moore is entitled to retroactive appli­
cation of Gardner.1

2. Proffitt
Moore is similarly entitled to retroactive 

application of Proffitt v. Wainwright, 685 
F 2d 1227 (11th-Cir. 1982), reh’g denied as 
modified, 706 F.2d 311 (11th Cir. 1983), 
cert, denied, 464 U.S. 1003, 104 S.Ct. 509,
78 L.Ed.2d 698 (1983).8 This Court in Prof­
fitt held that a capital defendant had the 
right to confront psychiatric witnesses at 
his sentencing hearing. This right has its 
foundations in “ assuring] the ‘accuracy of 
the truth-determining process.’ ” Cham­
bers v. Mississippi, 410 U.S. 284, 295, 93 
S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) (ci­
tations omitted) (cited in Proffitt, 685 F.2d 
at 1254). The idea that cross-examination 
improves the accuracy of fact-finding is at 
the foundation of the American adversarial 
system. See Proffitt, 685 F.2d at 1251 
("Cross-examination has been placed on a 
par with the right to notice and an opportu­
nity to be heard and the right to counsel, 
which are fundamental minimum require­
ments of a fair trial comporting with the 
due process clause.” ). The right to cross- 
examination created in Proffitt is expressly- 
based on improving the quality of informa­
tion available and the “ reliability of fact­
finding.” 685 F.2d at 1253. See also 
Chambers v. Mississippi, 410 U.S. at 295, 
93 S.Ct. at 1046 (denial of cross-examina-

7. Moore's first federal habeas petition was filed 
in November 1978. more than a year after Gard­
ner was decided. Moore s belated Gardner 
claim was excused by this Courts 1987 opinion 
in its Rule 9(b) analysis in order to further the 
"ends of justice." not because Gardner was un­
foreseen "new law” when Moore filed his first 
petition. The finding that Gardner creates the 
sort of accuracy-enhancing rule that warrants 
retroactive application to Moore s sentencing in 
1974 is in no way inconsistent with the concur­
rent finding that Moore s failure to raise the 
claim in his first federal habeas petition might 
be excusable to further the ends of justice.

8. I assume that Proffitt represents new law for
retroactivity purposes. The Court in Proffitt 
noted that a capital defendant had no right to 
cross-examine witnesses whose statements were 
considered by the court in sentencing.

tion “ calls into question the ultimate integ­
rity of the fact-finding process’ ’ ’) (citations 
omitted). The procedural right set forth in 
Proffitt is perhaps the paradigm example 
of the accuracy-enhancing exception set 
forth in Teague. There can be no doubt 
that Proffitt applies retroactively.

3. Smith
Moore’s claim based on Estelle v. Smith, 

451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 
(1981), presents a problem that his other 
two claims do not. Smith is not new law 
for retroactivity purposes. See Battie v. 
Estelle, 655 F.2d 692, 696-97 (5th Cir. 1981). 
Yet this Court held in its 1987 opinion that 
Smith was new law for the purpose of 
excusing his failure to raise it in his prior 
petition. Moore, 824 F.2d at 853-54 & n. 
12. The interrelatedness and possible iden­
tity of these two conceptions of “ new law’ 
is what this Court should have addressed 
on remand. Although I hesitate to discuss 
the issue in the vacuum of a dissent, I 
think the problem should at least be 
presented.

Moore asks the Court to maintain the 
position taken in our 1987 opinion that a 
decision which is not new law for retroac­
tivity purposes may constitute an unfore­
seeable change in the law that excuses a 
successive petition from being dismissed as 
abusive.9 See Moore, 824 F.2d at 853 n. 12. 
This Court in its 1987 opinion cited only 
Alvord v. Wainu-nght, 725 F.2d 1282 (11th 
Cir.), cert, denied, 469 U.S. 956, 105 S.Ct.

Williams v. Sew York, 337 l!.S. 241, 250, 69 S.Ct. 
1079, 1084, 93 L.Ed. 1337 (1949). Nevertheless, 
this Court created a new rule, in light of Fur­
man and its progeny, which granted a defen­
dant the right to cross-examine psychiatric wit­
nesses whose testimony is contained in sentenc­
ing reports. In fact, this Court has yet to go as 
far as Moore requests in expanding a defen­
dant's right to cross-examine adverse witnesses 
during sentencing. This Court's original broad 
opinion in Proffitt was modified to establish 
only the right to examine psychiatric witnesses. 
See 706 F.2d at 312.

9. Because Teague only addresses retroactive ap­
plication of new law, see 109 S.Ct. at 1070, 
Moore argues that Teague does not bar consid­
eration of the merits of his Smith claim by 
reason of non-retroactivity.



1527MOORE v. ZANT
Cite u  885 FOA  1497 (l lth C lr . 1989)

355, 83 L.Ed.2d 291 (1984), in. support of 
Moore’s proposition. However, Alvord 
only held that the finding in Battie that 
Smith was not new law for retroactivity 
purposes did not necessarily mean that 
counsel was ineffective for not anticipating 
its holding in failing to raise a point on 
appeal. Because the standard for excusing 
the failure to foresee a new decision is 
different in the ineffective assistance con­
text, Alvord does not necessarily stand for 
the proposition that a petitioner would sim­
ilarly be excused in the abuse of the writ 
context. Alvord is weak precedent for 
Moore’s claim that this Court should rea­
dopt its holding that Smith can simulta­
neously be old law and new law. The 
Supreme Court’s remand of this case in 
light of Teague may suggest that only deci­
sions which are new law for retroactivity 
purposes may excuse a successive petition. 
If so, then Moore’s Smith claim would 
have to be dismissed. The remand should 
have forced this Court to take a hard look 
at the relationship between its definitions 
of “ new law.”

•

III. ABUSE OF THE WRIT
Although I think it ill-advised to revisit 

our 1987 decision absent a change in the 
law or facts, c f  Pettway v. American 
Cast Iron Pipe Co., 576 F.2d 1157, 1197 n. 
42 (5th Cir.1978), cert, denied, 439 U.S. 
1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979) 
(counseling against redeciding questions 
“ absent the most cogent reasons such as 
the avoidance of manifest injustice” ), I feel 
compelled to address the merits of the plu­
rality’s decision to ignore Teague and af­
firm the district court’s decision to dismiss 
all of Moore’s claims under Rule 9(b). The 
majority’s position10 that Moore has 
abused the writ is untenable.

A. Proffitt
This Court decided Proffitt, supra, five 

months after the district court decided 
Moore’s first federal habeas petition. Un-

10. Again. I note that while only the plurality 
opinion flagrantly disregards the Supreme 
Court's mandate in reaching and redeciding the 
abuse of the writ issues, the concurring judges

der Rule 9(b), the district court must con­
sider the merits of Moore’s Proffitt claim if 
Proffitt constitutes "[a] retroactive change 
in the law.”  See Advisory Committee Note 
Rule 9(b); see also Sanders v. United 
States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 
10 L.Ed.2d 148 (1963) (“ the applicant may 
be entitled to a new hearing upon showing 
an intervening change in the law” ). As 
discussed in Part II(CX2) above, Proffitt 
clearly worked a change in the law which 
must be applied retroactively under Teag­
ue. Before Proffitt, a capital defendant 
had no cross-examination right at the sen­
tencing phase of his trial. See Williams, 
337 U.S. at 250, 69 S.Ct. at 1084; see also 
Moore, 824 F.2d at 854 (complete discus­
sion of why Proffitt constitutes new law 
for purposes of abuse of the writ). Be­
cause Proffitt was an unanticipated change 
in the law which should be applied retroac­
tively, Moore’s successive claim should be 
excused from dismissal.

B. Estelle v. Smith
As discussed above in Part 11(C)(3), the 

Supreme Court’s remand in light of Teag­
ue, a retroactivity case, seems aimed at 
this Court’s tenuous distinguishing of Bat- 
tie v. Estelle, 655 F.2d 692 (5th Cir.1981). 
See Moore, 824 F.2d at 853 and n. 12. Our 
response to the mandate might be to hold 
that the definition of new law for retroac­
tivity and abuse of the writ are the same. 
Such a holding would leave us no choice 
but to hold that Moore’s Estelle v. Smith 
claim constitutes an abuse of the writ. 
This crucial intersection of retroactivity 
and abuse of the writ jurisprudence is what 
the plurality should be addressing today. 
It is a question of great importance, the 
answer to which might finally provide some 
definition to our vague notions of what 
constitutes “ new law” in various contexts.

C. Gardner
This Court’s 1987 opinion remanded 

Moore’s claim brought under Gardner v. 
Rondo, 430 U.S. 349, 97 S.Ct. 1197, 51 
L.Ed.2d 393 (1977), for consideration of 
whether the ends of justice might excuse

accede in. and effectively join, the plurality's 
repudiation of this Court's 1987 opinion with 
regard to abuse of the writ. See concurring 
opinion of Roney, CJ., at 1517.



1529U.S. v. PICCINONNA
Cite u  885 F J U  1529 (llth C lr . 1989)

not binding, I nevertheless submit that 
stare decisis values should have been tak­
en into account in our present decision. 
For this reason, I agree with much of what 
is said in Part I of Judge Kravitch’s opinion 
and Part I of Judge Johnson’s opinion.

I join in all o f Part II (Applying Teague 
to Moore’s Petition) of Judge Kravitch’s 
opinion, except footnote 5. I join in full 
Part III (Abuse of the Writ) o f Judge 
Kravitch’s opinion.

With respect to Judge Johnson’s opinion, 
I join Part II.A. (Waiver); Part II.B. (Re­
troactivity o f Teague)', Part II.C.l. (Gard­
ner)-, Part II.C.2. (Proffitt)-, Part III.A. 
(Proffitt)-, and Part III.C. (Gardner).

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

UNITED STATES of America, 
Plaintiff-Appellee,

v.
Julio PICCINONNA, 
Defendant-Appellant.

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

Eleventh Circuit-
Sept 28, 1989.

Defendant was convicted of knowingly 
making false statements to a grand jury in 
the United States District Court for the 
Southern District of Florida, No. 85-6132 
CR-JAG, Jose A. Gonzalez, Jr., J., and he 
appealed. The Court of Appeals, 858 F.2d 
743, affirmed. Following grant of petition 
for rehearing en banc, 861 F.2d 639, the 
Court of Appeals, Fay, Circuit Judge, held 
that: (1) polygraph evidence was not inad­
missible per se; (2) polygraph evidence 
could be admitted where party stipulated in 
advance as to circumstances o f test and as 
to scope of its admissibility; and (3) poly­
graph evidence could be used to impeach or

corroborate testimony o f witness at trial 
under conditions of adequate notice and as 
limited by evidence rule for admissibility of 
corroboration or impeachment testimony 
and rules governing relevance and proba­
tive value.

Vacated and remanded.
Johnson, Circuit Judge, filed an opinion 

concurring in part and dissenting in part in 
which Roney, Chief Judge, and Hill and 
Clark, Circuit Judges, joined.

I

1. Criminal Law <£=388.5(1)
Polygraph evidence is not per se inad­

missible. Fed.Rules Evid.Rule 702, 28 U.S. 
C.A.

2. Criminal Law <£=388.5(1, 6)
Polygraph expert testimony is admissi­

ble when both parties stipulate in advance 
to circumstances of test and as to scope of 
its admissibility; stipulation must indicate 
parties agree on material matters such as 
manner in which test is conducted, nature 
of questions asked, and identity of examin­
er administering test, while stipulation as 
to scope of admissibility must indicate pur­
pose or purposes for which evidence will be 
introduced.

3. Witnesses <£=318, 344(1), 414(1)
Polygraph evidence may be admitted 

to impeach or corroborate testimony of wit­
ness at trial within discretion of trial judge 
only if party planning to use evidence at 
trial adequately notifies opposing party 
that expert testimony will be offered, and 
opposing party is given reasonable opportu­
nity to have its own polygraph expert ad­
minister test covering substantially the 
same questions, subject to federal rules of 
evidence for admissibility o f corroboration 
or impeachment testimony. Fed.Rules 
Evid.Rule 608, 28 U.S.C.A.

4. Criminal Law <£=388.5(1)
Polygraph expert testimony must help 

trier of fact to resolve issues and be rele­
vant, and cannot be admitted if its proba­
tive value is substantially outweighed by 
the danger of unfair prejudice. Fed.Rules 
Evid.Rules 401, 403, 702, 28 U.S.C.A.



APPENDIX B