# William Neal Moore v. Ralph Kemp > Court of Appeals for the Eleventh Circuit · July 27, 1987 · 824 F.2d 847 URL: https://www.frixlaw.com/law-library/cases/9476494 ## Case - **Full name:** William Neal MOORE, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** July 27, 1987 - **Citations:** 824 F.2d 847; 1987 U.S. App. LEXIS 10035 - **Precedential status:** Published - **Opinion:** Dissent by Hill - **Judges:** Roney, Godbold, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Hatchett, Anderson, Clark, Edmondson - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476494 ## How later opinions describe it (automated extraction) - reversing a finding that petitioner’s Proffitt claim was an abuse of the writ and remanding the claim for a determination on the merits where petitioner simply challenged the lack of cross-examination of "witnesses whose hearsay testimony was considered in the presentence report” ## Opinion text HILL, Circuit Judge, DISSENTING, in which FAY and EDMONDSON, Circuit Judges, join: “When the right point of view is discovered, the problem is more than half solved.” Ellison v. Georgia R.R., 87 Ga. 691, 706-7 , 13 S.E. 809, 813 (1891) (Bleckley, Chief Justice). The right point of view of the issues in this case is this: successive petitions for habeas corpus create a genuine and necessary tension between the institutional desirability of finality of judgment on the one hand and, on the other, society’s abhorrence of confinement or other punishment of one who is known to be innocent. This is not a contrived dispute. It represents the inevitable difficulty in society’s accommodation of divergent but valid interests. In the administration of justice, finality achieved reasonably promptly is important. See, e.g., Heiser v. Woodruff, 327 U.S. 726, 733 , 66 S.Ct. 853, 856 , 90 L.Ed. 970 (1946) (recognizing that res judicata serves sound “public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court.”); FTC v. MinneapolisHoneywell Regulator Co., 344 U.S. 206 , 73 S.Ct. 245 , 97 L.Ed. 245 (1952) (holding that principles of finality create jurisdictional bar to untimely filing of certiorari petition). There are special reasons why finality is a proper goal in criminal justice. At some point, the criminal process, if it is to function at all, must turn its attention from whether a man ought properly to be incarcerated to how he is to be treated once convicted. If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants present or else it never provides an answer at all. Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved. Mackey v. United States, 401 U.S. 667, 690-91 , 91 S.Ct. 1160, 1178-79 , 28 L.Ed.2d 404 (1971) (Harlan, J., concurring). In civil litigation, even a supported protest that the judgment wrongfully deprives one of property or other freedom of action is usually disregarded if that judgment has reached finality. Finality is that important. Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522, 525 , 51 S.Ct. 517, 517 , 75 L.Ed. 1244 (1931) (in civil litigation court noted: “Public policy dictates that there be an end to litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between parties.”); Bennett v. Commissioner, 113 F.2d 837, 840 (5th Cir.1940) (“[T]he rule of res judicata does not go to *878 whether the judgment relied on was a right or wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated.”). In this country, we acknowledge that our institutions must be fallible because they are the workings of fallible humans and not monarchs divinely appointed. While some risk of the wrong result must be taken in the administration of justice, we recoil from the imprisonment or punishment of one whose innocence can be demonstrated. Given the right point of view — that this tension must exist in habeas corpus litigation — we see that it has been the task of Congress to relieve the tension to the extent proper. In my view the Congress has done that in its provisions for our dealing with successive habeas corpus petitions. 28 U.S.C. § 2244 (a), (b) (1982). First, these enactments do not disturb the authority of the judicial branch to hear and decide, on first federal petition for habeas corpus, claims of constitutional error in the state court proceedings. Unless limited by some other provision or precedent, see Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), relief may be granted from state custody where there has been grievous denial of constitutional rights whether or not the petitioner asserts innocence. I take no issue with that; it is compelled by controlling Supreme Court precedent. What is subject to our resolution today is the availability of successive petitions. Legislative history makes it clear that in 1966, congressional amendment to section 2244 was to achieve “a greater degree of finality of judgments in habeas corpus proceedings” and to add to section 2244 “provisions for a qualified application of the doctrine of res judicata.” S.Rep. No. 1797, 89th Cong., 2d Sess. 2, reprinted in 1966 U.S.Code Cong. & Admin.News 3663, 3664. Congress successfully accommodated these tensions. It gave the courts authority to refuse to hear petition after petition after petition for the writ of habeas corpus brought by state prisoners, whether claiming innocence or not. However, the establishment of finality in these cases carries the risk that one who is demonstrably innocent may yet be incarcerated only because there is no procedure for obtaining a release order. Therefore, whatever may have been the history of the post-conviction litigation in state or federal court, a U.S. district judge is authorized to accept, hear, and consider a successive and even abusive petition for the writ of habeas corpus by a state prisoner should the “ends of justice” require it. In my view, the meaning of the 1966 amendment must be discovered here by reference to the problem being addressed. If the courts conclude that a determination of the existence vel non of “ends of justice” will depend upon whether or not the petitioner claims and offers to prove his innocence, then the goal of finality will have been achieved as far as reasonably possible. The innocent will have a “safety valve” from finality; the guilty will have reached the end of litigation. In the context of death penalty habeas corpus litigation, one may be guilty of murder and yet not subject to the death penalty. Thus, when I advocate that a district judge ought to be able to hear a petition brought by one claiming innocence, I would interpret “innocence,” where the death penalty is involved as being innocent of any statutory aggravating circumstance essential to eligibility for the death penalty. The petitioner in this case makes no claim of innocence; he long ago and promptly confessed to murder accompanied by statutory aggravating circumstances. For the reasons stated above, therefore, and for the reasons so much better articulated in parts II and III of the opinion of Justice Powell in Kuhlmann v. Wilson, 477 U.S. 436 , _, 106 S.Ct. 2616, 2622-28 , 91 L.Ed.2d 364 (1986), I would affirm the district court’s judgment dismissing the petition. For these reasons I respectfully DISSENT. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476494. Public record. Not legal advice.