# Petition — MOORE v. BALKCOMCOM (No. 83-6084) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1741%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text DANIEL J GIVELGEN DONALD BERMAN Wartheaastern Univeraeit Beneal @F Law 800 HUATILAGEOGA AVeRuU Busetoan, Maaaa 1) ‘tts ‘@iri @3? 194) (Gi7) @1Fe1106 BUPrN EME wi iar Ar " 4 ; THE wher |e iv THE OF THE UNITED BTATES tere ,o8) L ba : ’ . eS a‘ t r AF? A tN : ’ DANI E t nen Nurtheaé ; iy ‘6 . ' sw | munt 4 1 AVe@nh Ue a “aaea € s) 194) NUE ry RE ’ QUESTIONB PRESENTED | ' 4, Does petitioner's Geeth sentence vielate Eddings vy. Qhiahoma, 455 0.8, 104 (1002) and Leokett ¥. Ohio, 438 0.8, 586 (L878) when & sentencing Judge refuses te consider relevant Mitigating Gireumetances and believes that the death sentence ie required mandaterily fer certain erimea? . Did the Clre@ull C@urt @FF iA Feversing the Bietriet Court's determination that petitioner's arbitvary and freakian death sentence was net earreeted by Geargia appellate review when: (a) the Georgia Supreme Court compared similar erimes and iqnered ite eanetitutional and atatutery ebligation te eompare the sentences feeeived by comparable defendants; (b) the Geergia courts denied the petitieaner any forum in whieh te identify, examine, supplement @F Comment upen the reeerd ef eases relied upen fer eomparability reviews and (e@) the Cireuit eeurt Barred any federal habeas @xamination ef the Comparability reeerd used by the Geargia Supreme Court? i, In the fare inetanee ef & plea if @ Capital ease, de the BiGhEN and Fourteenth amendments te the United States Conatitutiean sanction plea preeeedings that tetally failed te aseertain whether @ defendant knowingly pled te an essential element ef the erime == 1.@, intent? TABLE OF CONTENTS Page in. 6 bs 6 = © & 6 © 6 0 « 6 © « © © 6 8 DE © 6 656 «6 6 ee 6 6 «6 @e 0 6 6 @ @ rn (h(i « 6 6 ¢ «© © 6 6 © © 6 0© 6 6 8 Btatement @F Juri@d@ictional Grounds ......4+24+2.es-s CONSELEUEL@AaL Pr@Visions Involved ......4+24+24+4e6- jt ME + « 6 os 6 6¢ 6 © © «© © © © © eo ew oO meneame COP GEGRUARG The Writ . . . « « «© © © © © -6© © © © b, Phe ChPe@ult court violated this Cour decision in Badings ¥. Okiahema by failing to require resentencing when the senteneer theught Nimself precluded from considering mitigating eilreumaetaneces, i. ess « © & « «© ee es 6 6 ee #, THe CLP@utt court erred in reversing the District court's Geterminatian that petitioner's aberrant death sentence had not been Carreeted By Georgia appellate review and in barring the Diateiet ee@urt fem reviewing the record developed and considered in rr [OMT E., » «6 c«e ¢ © 8 eo 6 © © 8 8 i, Me CilPe@ult court erred in permitting a conviction based WPOh & Plea €O & PApital offense to stand when the record of the sentencing preeeeadings demonstrates that the offender did not un@eratanad the @lements of the crime. Caneiusian ‘oe oe Appendices: A, M@ere ¥. Balkcom, 716 FP. 2d 1511 (llth Cir. 1983) and the Slip @pinian @F the modification thereto, dated December 13, 1983. B. Moore ¥. Balkcom 709 FP. 2d 1353 (1983) .. ©. Blake vy. Zant 513 F. Supp. 772 (S.D. Ga. 1981) ® M@ere ¥. Hopper Civil Action No. 78-22 (Superior Ceurt, Tattnall Cty. July 13, 1978) B. Meere ¥. State 239 Ga. 67 (1977) FP. Moere v. State 233 Ga. 861 (1974). G. OFFL@Lal Code of Georgia Annotated (OCGA) 17-10-35 ai 10 13 23 26 Al A22 A39 A65 ABl AB 3 Ag94 TABLE OF AUTHORITIES Cases: . Allen v. State, 231 Ga. 17, 200 S.E. 2d 106 (1973) 7, 8 Barclay v. Florida, _ U.S.___, 103 S. Ct. 3418 (1983) 13 Birt v. Hopper, 245 Ga. 221, 265 S.E. 2d 276 (1980) 4 Blake v. State, 239 Ga. 292, 236 S.E. 2d 637, cert. denied, 434 U.S. 960 (1977) 18 Boykin v. Alabama, 395 U.S. 238 (1969) 23 Brown v. Allen, 344 U.S. 443 (1953) 19 California v. Ramos, ___U.S.__, 103 S. Ct. 3446 (1983) ll, 21 Chenault v. Stynchcombe, 581 F. 2d 444 (5th Cir. 1978) 10 Coleman v. State, 378 So. 2d 640 (Miss. 1979) 15 Creamer v. State, 232 Ga. 136, 205 S.E. 2d 240 (1974) 7, 8 Eddings v. Oklahoma, 455 U.S. 104 (1982) 9,10,11 passim Emmett v. State, 232 Ga. 110, 205 S.E. 2d 231 (1974) 8 Prank v. Magnum, 237 U.S. 309 (1915) 19° Furman v. Georgia, 408 U.S. 238 (1972) 17 Gardner v. Florida, 430 U.S. 349 (1977) 22 Godfrey v. Georgia, 446 U.S. 420 (1980) 14, 21 Goodwin v. Balkcom, 684 F. 2d 794 (llth Cir. 1982) 10 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979) 21, 22 Gregg v. State, 233 Ga. 117, 210 S.E. 2d 659 (1974), affd. as Gregg v. Georgia, 428 U.S. 153 (1976) G6, 213, i7 Hall v. State, 241 Ga. 252, 244 S.E. 2d 833 (1978) 17 Harrell v. State, 108 Ga. App. 295, 132 S.E. 2d 787 (1963) 23 Henderson v. Morgan, 426 U.S. 637 (1975) 23 Hicks v. Okiahoma, 447 U.S. 343 (1980) 21 Jackson v. Virginia, 443 U.S. 307 (1979) 20, 22 Johnson v. State, 226 Ga. 511, 175 S.E. 2d 840 (1970) 7. 8 Jurek v. Texas, 428 U.S. 262 (1976) 15 Kramer v. State, 230 Ga. 855, 199 S.E. 2d 805 (1973) 8 Lingo v. State, 226 Ga. 496, 175 S.E. 2d 657 (1970) 6 Lockett v. Ohio, 438 U.S. 586 (1978) 9,10,11,12 passim McCarthy v. United States, 394 U.S. 459 (1969) 24 Moore v. Balkcom, sub. nom., Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 19861) 2,8,9 passim Moore v. Balkcom, 709 F. 2d 1353 (llth Cir. 1983) 9, ll Moore v. Balkcom, 716 F. 2d 1511 (llth Cir. 1983) 9,10,12 passim : Moore v. Balkcom, No. 81-7418, on Petition for Rehearing and Suggestion for Rehering En Banc, Slip Opinion (llth Cir., December 13, 1983) 10 Moore v. Hopper, Civil Action No. 78-22 (Superior Court, 36,7. Tattnall County, July 13, 1978) (unpublished opinion) passim Moore v. State, 233 Ga. 861, 213 S.E. 2d 829 (1974), cert. denied 428 U.S. 910 (1976) §,13,i17 Moore v. State, 239 Ga. 67 235 S.E. 2d 519, cert. denied, 434 U.S. 878 (1977) 6 Nash v. Israel, 707 F. 2d 199 (7th Cir. 1983) 24 Pass v. State, 227 Ga. 730, 182 S.E. 2d 779 (1971) 5,8 Profitt v. Florida, 42& U.S. 242 (1976) 15 Pulley v. Harris, cert. granted, No. 82-1095 (U.S. S. Ct. 1983),14 sub. nom., Harris v. Pulley, 692 F. 2d 1189 (9th Cir. 1982) Redd v. State, 242 Ga. 876, 252 S.E. 2d 383 (1979) 15 Scott v. State, 230 Ga. 413, 197 S.E. 2d 338 (1973) 8 Sims v. State, 229 Ga. 33, 189 S.E. 2d 68 (1972) 7 Spinkellink v. Wainwright, 578 F. 2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976 (1979) 19 Spivey v. Zant, 661 F. 2d 397 (5th Cir. 1981) 10 Strozier v. Hopper, 234 Ga. 597, 216 S.E. 2d 847 (1975) 18 Sumner v. Mata, 455 U.S. 581 (1982) 20 Vitek v. Jones, 445 U.S. 480 (1979) 21,22 Waddy v. Heer, 383 F. 2d 789 (6th Cir. 1967) 24 Ward v. State, 239 Ga. 205, 236 S.E. 2d 365 (1975) 17 Warren v. State, 562 S.W. 2d 474 (Tex. 1978) 15 Watson v. State, 229 Ga. 787, 194 S.E. 2d 407 (1971) 8 Westbrook v. Zant, 704 F. 2d 1487 (llth Cir. 1983) 10 Woodson v. North Carolina, 428 U.S. 280 (1976) 10,12 Zant v. Gaddis, 247 Ga. 717, 279 S.E. 24 219 (19861) 4 Zant v. Stephens, U.S. 103 S&S. Ct. 2733 (1983) 4,10,12,passim STATUTES Georgia Code Annotated (Ga. Code Ann. 26-1101(A)(19786) 23 Official Code of Georgia Annotated 17-10-35, 5,15,16 Official Code of Georgia Annotated 17-10-37 7, 4s 28 U.S.C. §2254 19, 20 286 U.S.C. §2241 19 Vernon, Appofated SPOR, Pia Pr iminal Procedure, (V.A.C.C.P.), 15 iv No. 83- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 WILLIAM NEAL MOORE, Petitioner CHARLES BALKCOM, Warden ARTHUR K. BOLTON, Attorney General, Respondents PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Petitioner William Neal 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. CITATION TO OPINION BELOW Moore V. Balkcom, 716 F. 2d 1511 (llth Cir. 1983) and the slip Opinion of the mcdification thereto, dated December 13, 1983, are attached as Appendix A to this petition. JURISDICTION The judgment of the United States Court of Appeals for the Eleventh Circuit was entered on September 30, 1983. A timely suggestion for rehearing en banc was denied on December 13, 1983. This Court's jurisdiction is invoked pursuant to 28 U.S.C. §1254(1) rerereeaieareeasiiiaiastaticailiniinaiaiiaiaiiniiliiiai : This case involves the Eighth Amendment to the Constitution of the United States, which provides: Excessive bail shali not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. and the Pourteenth Amendment to the Constitution of the United States, which provides in relevant part: {[NJor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the la.s. STATEMENT OF THE CASE The Defendant and the Crime William Neal Moore was, on April 2, 1974, a twenty-two year old black serviceman from Ohio with no adult criminal record. After a night of drinking, Moore broke into a home in Wrens, Georgia. He was confronted by the homeowrsr who fired at him with a shotgun. Both frightened and drunk, he fired back, killing the homeowner. The following day, petitioner was arrested at his home. After showing the police the shotgun and the money, he was taken to Wrens, Georgia. At 2:00 a.m., on April 4, 1974, Moore gave a statement concerning the shooting of the victim. Moore v. State, 233 Ga. 861-2, 213 S.E. 2d 829, 830-831 (1974) cert. denied 428 U.S. 910 (1976). Pour months prior to petitioner's actions an elderly white couple had been tortured and murdered in their home in Wrens (pop. 2300). When petitioner -faced sentencing, the murders remained unsolved. Recognizing that widespread fear and anger permeated the area, petitioner pled guilty and waived a jury for sentencing because his counsel did not think “we had any chance whatsoever with a jury in Jefferson County at the time.” Transcript State Habeas, p. 46.(hereafter °S.Hab.T.") Plea and Sentencing Hearing Petitioner pled guilty to malice murder and armed robbery at his arraignment on June 4, 1974. In accepting the plea, Jwdge McMillan of the Jefferson County Superior Court, rather tnan reading the indictment, only told Moore that the charge was that he "did on the second day of April 1974, kill one Predger Stapleton with a certain pistol, contrary to the law of the State of Georgia..." Transcript of June 4, 1974 Arraignment, 1 (hereafter "Arr.T.") The judge mentioned that the crimes were Murder and Armed Robbery. He inquired whether petitioner understood the nature of the charges, but he neither offered any explanation of any of the elements of either crime charged (or of felony murder) nor asked whether petitioner's counsel had explained then. The sentencing hearing was held on July 17, 1974. The prosecutor defined the question as “whether or not there is aggravation in this matter sufficient, under the code Section, to reguire the Court to impose the death penalty." Transcript State Sentencing Hearing 4 (hereafter Sen. T.) (emphasis supplied). The state presented the testimony of the medical examiner and investigating officers. Following the state's presentation of its case -- which rested almost exclusively on petitioner's confession and the results of a nighttime search of his dwelling -- petitioner's four brothers and sisters and petitioner testified. Petitioner's counsel asked no questions of the petitioner's siblings nor did he make any reference whatsoever to the 74 page pre-sentence report submitted to the court. +/ He only requested of petitioner, who was under oath, that he “try as best you can to tell the Judge how you got mixed up and how you came about doing this thing and how you feei about it." Sen. T. 48. Petitioner then briefly described the circumstances leading up to his drunken, unintentional shooting of Predger Stapleton. "I didn't have no intention of killing him. When I went in there, he came out there with a shotgun and hit me in the leg, it scared me, made me shoot him..." Sen. T. 48. Although Moore's lack of intent was confirmed by the physical facts, neither the District Attorney nor the sentencing judge asked petitioner anything about his */Both petitioner and his counsel insist that they were never shown a copy of the pre-sentence report which contains material inaccuracies. S. Hab. T. 18-19, 40-41. The state habeas court disbelieved petitioner's counsel in this respect and instead credited an affidavit submitted by the probation officer four years after the event. Moore v. Bakke Civ. Act. No. 78-22 at 8-9 (Sup. Ct., Tattnall Cty. July ’ . Whatever the cause, the pre- sentence report stood unchallenged and uncorrected. description of the killing, his denial of intent, or his understanding of the crime to which he had pled. The prosecutor ° cross-examined petitioner solely with respect to whether he claimed any interest in the money that had been recovered. The judge asked no questions. Judge McMillan offered a lengthy explanation for imposing the death sentence. He explained that he had “many, many reservations about whether there will be an execution by government authorities in this country ever again." Sen.T. 55. He doubted whether discretionary, as opposed to mandatory, capital punishment schemes would pass constitutional muster. Sen. T. 52, 55. Next, he stated that he could not consider whether his sentence constituted "evenhanded justice," Now I can't make that determination. The law does not place that discretion in me. It places that discretion solely within the jurisdiction of the Supreme Court of Georgia. Sen. T. 55-56. Finally, he expressed his feelings that this offense required the imposition of the death penalty, precluding consideration of mitigating factors in petitioner's case. So, I feel like that if the Court ever does require mandatory punishment -- that is when they specify by law what offenses will have to be suffered by the electric chair -- that one of these statutory offenses probably will be that when a person is robbed and killed in his home, that mandatory, as contrasted to discretionary, statutory aggravating circumstances will probably warrant the electric chair without life imprisonment. That justifies me in making the finding that I made. Sen.T. 56- 57. Six months after Judge McMillan sentenced petitioner to death, those responsible for the murder of the elderly couple were tried before Judge McMillan. He improperly instructed the jury. He failed to inform them that they remained free to impose a life sentence even if they found an aggravating circumstance. As a result, the two of three defendants who received death subsequently had their sentences overturned. Birt v. Hopper 245 Ga. 221, 265 S.E. 24 276 (1980); Zant v. Gaddis 247 Ga. 717, 279 S.E. 2d 219 (1981). Direct Appeal On appeal to the Georgia Supreme Court, petitioner's counsel raised the comparability issue. He submitted affidavits to the Georgia Supreme Court which identified cases from neighboring counties in which defendants had received life sentences for crimes of greater seriousness. The Supreme court refused to consider them, noting that they had not been considered by the trial judge. Moore v. State, 233 Ga. 661, 864, 213 S.E. 2d 829, 832 (1974) cert. denied 428 U.S. 910 (1976). It then identified what it viewed its obligation to be *. . . this court is not required to | | | | : Getermine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no | death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not “wantonly and freakishly imposed... ." Id. As required by Georgia law, Official Code of Georgia Annotated (OCGA) 17-10-35(e)(1982), the Georgia Supreme Court identified a pool of twenty-three comparable cases against which it measured Moore's sentence. These cases involved murders during robberies and burglaries. In fourteen cases, the detendant had received life and in nine, death. Pointing to seven of the cases in which the defendant received death, the Georgia Supreme Court concluded that Moore's sentence was not disproportionate. "In each of the companion cases cited, the records show that the accused was found guilty of murder of the victim of a robbery or burglary committed in the course of sucn robbery or burglary. In each of these cases, the jury imposed the sentence of death. In Pass v. State, the murder took place in the victim's home, as occurred in the case under consideration.” 233 Ga. at 865-6, 213 S.E.2d at 833. The court then noted that although life had been granted in a number of the cases it examined, “the cited cases show that juries faced with Similar factual situations have imposed death sentences" and therefore Moore's sentence was not “wantonly and freakishly imposed.” Id The Georgia Supreme Court noted Moore's cooperation with the authorities, his plea, his waiver of a sentencing jury, his youth, his lack of a criminal record, his intoxication, and his firing out of fright in response to the victim's shotgun blast, 233 Ga. at 865, 213 S.E. 2d at 832. Nevertheless it did not compare his sentence with those received by defendants presenting comparable EE ee mitigating circumstances. Since Georgia law does not provide for : notice of the cases which the Supreme court will consult for measuring comparability, petitioner's counsel was not able to offer any argument concerning either the pool of cases considered or the cases ultimately deemed comparable. State Collateral Relief Following this Court's denial of Moore's petition for certiorari 428 U.S. 910 (1976) and his unsuccessful attempt to secure a declaratory judgment, Moore v. State 239 Ga. 67, 235 S.E. 2d 519 cert. denied 434 U.S. 878 (1977), petitioner sought habeas corpus relief from the Superior Court of Tattnall County, Georgia. However, petitioner was unable tc challenge comparability review in those proceedings. The Superior Court of Tattnall County ruled that it could not reconsider an issue which the Georgia Supreme court had resolved on direct review. Moore v. Hopper, Civ. Action No. 78-22 at 15-16 (Sup. Court, Tattnall County, July 13, 1978). Petitioner also challenged the intelligence and voluntariness of his plea in the state habeas corpus proceedings. Petitioner testified that he did not understand the elements of malice murder, armed robbery or felony murder. S. Hab. T. 22, 34. His counsel testified that he had explained to Moore the elements of the crimes charged, although he could not remember whether he ever informed petitioner about the role of intent. He testified that intent was not important. Q. Did you tell him in, in the course of those discussions, that he can be convicted of murder not withstanding the intent or the lack orf intent to kill? A. I'm not sure, I really, I don't know. Q. Uh, do you recall telling him that his lack of a specific intent to kill Mr. Stapleton was, would not amount to any kind of defense? A. Well, I didn't think it would under what we had. Here's a man who's broken into somebody's home with a, » .38 caliber gun. Q. Yes, sir, I mean, you're right. A. Yes, sir. Q. I mean. A. Uh, that clearly to me was a case of uh, felony murder. S. Hab. T. __, 52-53 (emphasis supplied) The state habeas judge believed petitioner's counsel and found that he had described the elements of the crimes charged to petitioner (felony murder was not charged). Moore v. Hopper, Civ. Action No. 78-22, 4, 7 (Sup.Court, Tattnall County, July 13, 1978). The state habeas judge made no findings a DR petitioner actually understood. The Supreme Court of Georgia denied petitioner's application for a certificate of probable cause to appeal on October 17, 1978. Federal Habeas - The District Court Petitioner did introduce the record relied on by the Georgia Supreme Court in connection with his federal habeas corpus petition filed in the Southern District of Georgia on November 22, 1978. That record consisted of the opinions in the twenty-three cases, summaries of each of the cases describing the crime, and the six page judge's report for each case. All the summaries and the judge's reports for the 1970-1973 cases were prepared by the special assistant to the court pursuant to his statutory duties, which required him to provide the Supreme Court: with whatever extracted information it desires with respect thereto, including, but not limited to, a synopsis or brief of the facts in the record concerning the crime and the defendant. OCGA 17-10-37(a)&(b)(1982) Transcript Federal Habeas, i6, 21, 22, 26 (hereafter “Fed.Hab.T."). Of the twenty-three cases, only two -- Johnson (Eddie Lee) v. State, 226 Ga. 5l1l, 175 SE 2d 840 (1970); and Sims v. State, 229 Ga. 33, 189 SE 2d 68 (13972), 4/ -- involved even a single mitigating circumstance. In both of these cases the defendants received life. No other defendant -- neither the twelve who received life nor the nine who received death -- had a single mitigating factor arguing for him. Four of the twenty-three cases involved robbery/burglary murder within the victim's home. In three cases, Creamer v. State, 232 Ga. 136, 205 S.E. 2d 240 (1974); Allen v. State, 231 Ga. 17, 200 S.E. 2d 106 (1973); and Emmett v. State, 232 Ga. 110, 205 S.E. 2d 231 (1974), the defendant received life although each involved double murders by defendants who presented no mitigating 27The summaries, trial judge reports, and opinions in the twenty-three cases are contained in Appendices C, D and E to Petitioner's Memorandum of Law submitted to the federal district court. circumstances. Two of these cases involved defendants with lengthy criminal records, over forty years of age, Allen v. State, supra; Creamer v. State, supra. The one case in which death was imposed was a pre-Furman case. It involved a black man, Pass, who was convicted of the double murder of a white couple. The couple had been shot in the head after one of them was beaten with a baseball bat during a burglary of their home. Pass v. State, 227? Ga. 730, 182 S.E. 2d 779 (1971). There were no mitigating circumstances and Pass recanted his confession and presented an alibi defense. The seven cases identified by the Georgia Supreme Court as justifying Moore's death sentence included only one (Gregg v State, 233 Ga. 117, 210 SE 2d 659 (1974), aff'd 428 U.S. 153 (1976)) imposed under the post-Furman Georgia statute. That case involved an execution-style, double murder. The other six involved either defendants with lengthy criminal records who engaged in violent criminal behavior toward more than one person [Scott v. State, 230 Ga. 413, 197 SE2d 338 (1973), (two murders),Watson v. State, 229 Ga. 787, 194 SE2d 407 (1971), (rape and kidnapping of a woman in addition to murder of a man) and Kramer v. State, 230 Ga. 855, 199 S.E. 2d 805 (1973), (murder of one victim, attempted murder of the other)] or pre-Purman crimes involving Black defendants and white victims. Pass, supra; Lingo v. State, 226 Ga. 4936, 175 S.E.2d 657 (1970); Johnson v. State, 226 Ga. 51ll, 175 SE2d 840 (1970). As noted, no case presented any mitigating circumstances. The District Court examined the twenty-three cases and the summaries considered by the Georgia Supreme Court. It concluded that petitioner's death sentence violated the Eighth and Pourteenth Amendments of the United States Constitution because (1) the Georgia Supreme Court did not consider similar cases and (2) upholding this death sentence would “shock the conscience." Moore v. Balkcom sub nom Blake v. Zant, 513 F. Supp. 772, 816-817 (‘(S.D. Ga. 1981). Then, the Pederal District Court, seeking to find Similar cases that might sustain the sentence, looked outside the record compiled by the Georgia Supreme Court. Since it found no such cases it get aside the petitioner's death senterice. Moore v. Balkcom, supra at 816. The District Court denied petitioner's claim that his plea was at the eatate habeas corpus preceedings the court found that the plea wae Knowing and intelligent, Meere ¥. Balkoom, supra at 806 08, Federal Habeas the Circuit Court of Appeals On appeal the Eleventh Circuit Court of Appeals issued two different decisions, plus one modification. In each instance, it upheld the District Court's ruling on the plea and reversed the District Court's ruling regarding the arbitrariness and capriciousness of Moore's sentence. In reversing, the Circuit court held A federal habeas court should not undertake a review of the state supreme court's proportionality review and, in effect, "get out the record” to see if the state court's findings of fact, their conclusion based on a review of similar cases, was supported by the “evidence” in the similar cases. To do so would thrust the federal judiciary into the substantive policy making area of the state. Moore v. Balkcom, 716 F. 2d 1511(1983). (Moore II) However, in the first decision, Moore v. Balkcom, 709 F. 2d 1353 ("Moore I") issued June 23, 1983, the Eleventh Circuit affirmed the District Court's decision on another ground. While on appeal, the petitioners by letter dated February 24, 1982, called to the attention of the Circuit court this Court's decision in Eddings v. Oklahoma, 455 U.S. 104 (1982). In Eddings, this Court held that (1) even though a statute does not mandate the death penalty the sentencer must know that he is free to consider any mitigating circumstances and (2) a death penalty conviction cannot stand when the sentencing judge has applied ambiguous legal standards. The Circuit court rested its decision in Moore I on two grounds: first, that the sentencing judge unconstitutionally applied a non-statutory aggravating circumstance, Moore I at 1366- 67, and second, that the sentencing judge imposed a mandatory death sentence that “eliminated consideration of valid mitigating circumstances”. Id. at 1366, n. 16, citing Lockett v. Ohio, 438 U.S. 586 (1978). On the basis of this Court's June 22, 1983 decision in Zant v. Btephens, 103 8, Ce, 2733 (1983) the respondents moved for rehearing, Hy letter dated Auguet 10, 198) petitioners reaponded that thie Court's decision in Bant ¥. Btephens did net affeet that pertion of the epinien Finding fFallure te eeonsider mitigating Cireumstanees. This Court expressly had reaffirmed the need far "an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, 103 S.Ct. at 2744, citing Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982); Lockett v. Ohio, 438 U.S. 586 (1978); and Woodson v. North Carolina, 428 U.S. 280, 303-304 (1976). On September 30, 1983, the Circuit court decided Moore v. Balkcom 716 F. 2d 1511 (llth Cir. 1983). In Moore II the court reinstated petitioner's death sentence holding that (1) Zant v. Stephens, no longer precluded a sentencer from utilizing non- statutory aggravating circumstances and (2) "the analysis used by the Georgia Supreme Court in conducting its mandatory proportionality review" validated whatever errors the sentencing judge might have committed. Petitioner then sought rehearing on the ground that appellate review cannot cure the sentencer's failure to understand his responsibility to consider all relevant mitigating circumstances. Eddings v. Oklahoma, 455 U.S 104 (1982); Goodwin v. Balkcom, 684 PF. 2d 794, 798 (llth Cir. 1982); Spivey v. Zant, 661 F. 2d 397, 471 (Sth Cir. 1981); Westbrook v. Zant, 704 F. 2d 1487 (llth Cir. 1983); Chenault v. Stynchcombe, 581 F. 2d 444 (5th Cir. 1978). On December 13, 1983, the Circuit court again modified its opinion holding that the sentencing judge had considered all mitigating circumstances and fully understood the range of his sentencing discretion. Moore v. Balkcom, No. 81-7418, on Petition for Rehearing and Suggestion for Rehearing En Banc slip.op. (llth Cir. 1983)("Moore III"). REASONS FOR GRANTING THE WRIT I. THIS COURT SHOULD SUMMARILY REVERSE THE CIRCUIT COURT FOR REFUSING TO FOLLOW THIS COURT'S DECISION IN EDDINGS V. OKLAHOMA REQUIRING RESENTENCING WHEN THE SENTENCER THOUGHT HIMSELF PRECLUDED FROM CONSIDERING MITIGATING CIRCUMSTANCES. Since 1976, this court has made clear that a state can not constitutionally mandate the imposition of the death penalty. Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio, 436 0.8, $906 (197@)) Baddings vy. Oklahoma, 455 0.8, 104 ()98)), Bven theugh 4 eatatute dees not mandate the death penalty the eentencer muet Knew that he ia free te eoneider any Mitigating elreumetancee, .--Just as the state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer, refuse to consider, as a matter of law, any relevant mitigating evidence... Eddings v. Oklahoma, 455 U.S. 104 (1982) at 113-114 (Powell, Brennan, Marshall, Stevens, O'Conner, JJ)(citations omitted) The record clearly establishes that the sentencing judge in this case, like the judge in Eddings, did not understand the law governing his discretion when imposing a death sentence. First, he stated his belief that there would never be another execution in this country. (Sen. T. 55). Secondly, he “justifie[d)" his sentence on the ground that homicides committed during the robbery of a victim's home would mandate the imposition of the death penalty. (Sen. T. 57). He absolutely refused to consider the "evenhandedness” of his sentence -- "the law does not place that discretion in me. It places that discretion solely within the discretion of the Supreme Court." (Sen. T. 56).3/ Finally, he stated that before imposing a life sentence the mitigating circumstances must “wipe out" the aggravating ones. (Sen. T. 56) The Circuit court in Moore I correctly held that the sentencing judge imposed a mandatory death sentence. Here, we have a case where the murder having occurred in the victim's home, Judge McMillan viewed the death penalty as mandatory. This error eliminated consideration of valid mitigating circumstances that might otherwise have been considered and this constituted error of constitutional magnitude....See Lockett v. Ohio..., 438 U.S. 586 (1978). Moore v. Balkom, 709 F. 2d at 1336 n. 16 (llth Cir. June 30, 1983) (emphasis supplied) Judge McMillan imposed this sentence after Furman but before Gre and Woodson when reasonable interpreters of Purman could conclude that there could be no discretion and that ultimately, discretion would be absolutely eliminated by mandatory death sentences for specified crimes. Judge McMillan “justified” his sentence on the belief that murder in the victim's home would 37Tt would have been fatal error for the judge to have instructed a jury in this manner since it might lead them to doubt the finality of their sentencing determination. cf. California v. Ramos, 103 S.Ct. 3446, 3458 (1983). 11 require @& Mandatory death sentence. id, at 1466, «ssfud@e@ McMillan unconstitutionally applied a ne@neatatut@ry aggravating circumstance, necessarily precluding consideration of mitigating circumstances. Although his analysis at the time was consistent with that of other scholars, later cases teach us its faults. Id. at 1367 (emphasis supplied) Even the Circuit court in Moore II recognized the serious uncertainty surrounding Judge McMillan's understanding of the law when it prefaced its conclusion with One could interpret Judge McMillan's language that capital punishment would likely become mandatory in cases involving murder and robbery in the victim's home as a non-statutory aggravating a factor which precluded consideration of mitigating factors. Moore II at 26-27. (emphasis supplied). More obviously, the Circuit court demonstrated the lack of reliability inherent in petitioner's sentence by (1) initially interpreting Judge McMillan's language as mandating the death sentence and precluding consideration of mitigating circumstances; (2) substituting a second opinion that implicitly recognized this error while relying on the proportionality review of the Georgia Supreme court to buttress its conclusion that Moore had received individualized sentencing; */ and (3) modifying the substituted */In Moore II, the panel, in light of Zant v. Stephens, U.S._, 103 S.Ct. 2733 (1983) modified its view and concluded that Judge McMillan's sentence comported “with the constitutional requirement of an individualized sentencing decision." Id. at 1524. The petitioner maintains that Zant v. Stephens, supra changed nothing in regard to defendant's right to be sentenced by a judge who understood that the law never requires the imposition of the death sentence. This Court in Zant v. Stephens decided only that a sentencer may, in certain limited circumstances, consider a non-statutory aggravating circumstance. It did not hold that a sentencer can refuse to consider mitigating circumstances. Indeed, this Court expressly reaffirmed the need for “an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, Id. at 2744 citing Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982); Lockett v. Ohio, 438 U.S. 586 (1978); and Woodson v. North Carolina, 428 U.S. 280, 303-304 (1976). This Court sanctioned the Georgia court's use of a non- statutory aggravating circumstance on the grounds that the jury ia) had found the presence of two legitimate aggravating circumstances, (b) had received proper instructions that they had the discretion to impose either life or death, and (c) under Georgia law could have considered the evidence of the defendant's prior criminal 12 opinion to hold that Judge McMillan had considered all mitigating circumstances, a conclusion that even the Georgia Supreme Court had eschewed; >/ a conclusion flatly rejected by this same panel in Moore I and totally unsupported by the record. Thus, this court should grant the writ of certiorari and summarily reverse that part of the decision of the court below that holds that sentencing judge imposed a death sentence in conformity with Eddings v. Oklahoma, supra. II. THE CIRCUIT COURT ERRED IN REVERSING THE DISTRICT COURT'S DETERMINATION THAT GEORGIA UNCONSTITUTIONALLY IMPOSED AN ARBITRARY AND FREAKISH DEATH SENTENCE: (A) THE SENTENCING JUDGE IMPOSED AN ABERRANT DEATH SENTENCE; (B) THE GEORGIA SUPREME COURT APPLIED AN INADEQUATE TEST FOR COMPARABILITY; (C) PETITIONER WAS DENIED ANY OPPORTUNITY IN ANY GEORGIA FORUM TO IDENTIFY, EXAMINE, SUPPLEMENT OR MAKE ARGUMENTS CONCERNING THE RECORD OF CASES RELIED UPON FOR THE COMPARABILITY ANALYSIS; AND (D) THE COURT OF APPEALS BARRED FEDERAL HABEAS REVIEW OF THE RECORD BEFORE THE GEORGIA SUPREME COURT A. The Sentencing Judge Imposed an Aberrant Death Sentence. Petitioner's sentence was imposed arbitrarily and capriciously. The sentencing judge was mistaken in his understanding of Eighth Amendment jurisprudence, misunderstood the range of his sentencing discretion, and focused on one circumstance of the crime to the exclusion of the array of mitigating factors concerning the defendant. This Court in Gregg v. Georgia 428 U.S. 153 (1976) and in Zant v. Stephens, supra, recognized the possibility that results as aberrant as this one were possible under the Georgia scheme but nonetheless upheld the statute since Appellate review in the Georgia capital sentencing scheme serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. Gregg v. Georgia, supra at 206. record even if the judge had not charged in respect to the non- statutory circumstance. Stephens, supra at 4894. Justice White, concurring, also saw no problem with the use of the non-statutory aggravating circumstance “since the evidence supporting the invalid aggravating circumstance was properly before the jury." Stephens, supra at 4899. Finally, Justice Rehnquist's concurrence sounded a similar theme. Thus, all seven Justices who joined in the Court's judgement, expressed the opinion that the improper instruction had no Significant impact on the jury's decision. ‘This Court has since made clear that its conclusion in Zant v. Stephens rested on a harmless error analysis. Barclay v. Florida, 103 U.S. 3418, n. 8 at 3425 (1983). */ tn Moore v. State, the Georgia Court noted four mitigating circumstances that the sentencing judge did not consider. 233 Ga. at 665, 213 S.E. 2d at 832. ‘Appellate review did not cure the arbitrariness inherent in petitioner's sentence. Here, as in Godfrey v. Georgia, 446 U.S. 420 (1980) the statute, valid on its face, was applied ina constitutionally inadequate fashion. First, the Georgia Supreme Court failed to compare petitioner's case with the cases of similarly situated defendants. Second, petitioner was denied any access to or opportunity to make arguments about comparable cases in any Georgia forum. Third, the Circuit court erred in holding that the District court was barred from reviewing the record developed and considered by the Georgia Supreme court in order to resolve vetitioner's Eighth Amendment challenge. B. The Georgia Supreme Court Applied an Inadequate Test of Comparability 6/ violated The Georgia Supreme court's comparability review petitioner's Eighth and Fourteenth Amendment rights in two ways. First it deemed petitioner's sentence comparable to death sentences imposed by juries in cases involving similar aggravating circumstances and thus, ignored the mandate of its own statute, as well as the Eighth Amendment to also compare petitioner's sentence to those sentences received by comparable defendants. And, second, even assuming arguendo that it chose the correct cases for comparison, those cases chosen provide no support whatsoever for the court's conclusion that petitioner's sentence was comparable. Indeed, the cases demonstrate precisely the opposite. Comparability review represents the major device for controlling the arbitrary and capricious imposition of the death penalty in Georgia, Zant v. Stephens, supra. Georgia law provides the sentencer no guidance as to who shall die from among those who have committed capital crimes involving a valid aggravating circum- stance. Zant v. Stephens, 103 S.Ct. at 2741-2. Georgia law neither lists relevant mitigating circumstances for the sentencer 6’This case presents issues complementary to those presently before this Court in Pulley v. Harris, No. 82-1095. That case raises the question of (1) whether the Eighth Amendment requires appellate proportionality review and, (2) if so, “what is the constitutionally required focus, scope and procedural structure for such review?" 51 U.S.L.W. 3590 (2-15-83). This case involves the second of these questions in the context of statutorily mandated proportionality review under the Georgia statute. It provides an opportunity for this Court to clarify the obligations of both state and federal courts in the context of the highly influential Georgia model. 14 to consider nor insists upon jury instructions identifying those circumstances in the case under consideration. Redd v. State, 242 Ga. 876, 252 S.E. 2d 383 (1979). Georgia law imposes no require- ment that a sentencer make findings regarding a particular individual and his suitability to die. Apparently, a defendant can be sentenced to death when a sentencer feels that a non-statutory circumstance -- e.g. the location of the killing -- compels it, regardless of any number of mitigating circumstances. Moore II at 1524, ?/ Georgia compensates for the undefined discretion of the sentencer through mandatory appellate review requiring a finding that a sentence was not imposed under the influence of an arbitrary factor and that the sentence is proportional to other sentences, "considering both the crime and the defendant." OCGA 17-10-35 (1982). To facilitate this review, the statute creates the position of an assistant to the Supreme Court and authorizes the employment of staff. OCGA 17-10-37(a), (b) (1982). With regard to capital felony cases since 1970, the assistant has been charged with the responsibility of providing the Georgia Supreme court “with whatever extracted information it desires with respect thereto, including, but not limited to, a synopsis or brief of the facts in the record concerning the crime and the defendant.” OCGA 17-10-37(a)(1982) (emphasis supplied) .°/ The court is required ‘/This contrasts sharply with both the scheme employed in Texas and approved in Jurek v. Texas, 428 U.S. 262 (1976) which conditions death on a jury finding that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071(b) (2) V.A.C.C.P.3; and with the Florida scheme, approved in Profitt v. Florida, 428 U.S. 242 (1976) which conditions death on a finding that the aggravating circumstances in a given case outweigh mitigating factors. Indeed, given the array of mitigating factors present here, petitioner could not have received death under other “statutory schemes. See Warren v. State, 562 S.W.2d 474 (Tex.1978); Coleman v. State 378 So. 2d 640 (Miss. 1979). 8/t facilitate this review, the trial judge is required to prepare a report to the Georgia Supreme Court for every capital case. This report contains a list of seven mitigating factors with room to add additional ones. The factors are: a. The defendant has no significant history of prior criminal activity. b. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. = c. The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act. dad. The murder was committed under circumstances 15 to identify in its opinion those cases which it considered for purposes of proportionality review. OCGA 17-10-35(e)(1982). In the event that it reverses a case on the grounds of disproportionality, the records of similar cases, as well as the extracts of these cases, prepared by the assistant to the court, are to be sent to the trial judge for his consideration. OCGA 17-10-35(e)(2)(1982). This procedure, properly conducted, is designed to eliminate the arbitrariness inherent in the uncontrolled exercise of discretion by Georgia sentencers. Zant v. stephens, 103 S.Ct. at 2742. On its face, the standard applied by the Georgia Supreme court in this case satisfied only one-half of its statutory mandate and none of its constitutional mandate to guard against the arbitrary and capricious imposition of the death penalty. The court merely examined whether people who had committed crimes involving a statutory aggravating circumstance comparable to the circumstances in petitioner': case had sometimes received death. There was no comparison of whether defendants like Moore had ever received the death penalty. ?/ One-can only receive the death penalty if there is evidence of an aggravating circumstance. The Georgia Supreme court only examined whether a death sentence sometimes was imposed on those who commit crimes involving a Similar aggravating circumstance. This standard meant that every death sentence was necessarily comparable unless the legislature has totally misjudged the seriousness of a given aggravating circumstance. At an absolute minimum, it meant that there could be which the defendant believed to provide a moral justification or extenuation for his conduct. e. The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor. f. The defendant acted under duress or under the domination of another person. g. At the time of the murder, the capacity of the defendant to appreciate the criminality [wrong- fulness) of his conduct or to conform his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication. h. The youth of the defendant at the time of the crime. i. Other. 9/even the most cursory examination of the allegedly comparable cases demonstrates that the Georgia court did not compare petitioner to similar defendants. Statement of the Case, supra. 16 no such thing as a disproportionate sentence if the defendant, like ' petitioner here, had been convicted of a felony murder. Indeed, with the exception of one case involving co- defendants, Hall v. State, 241 Ga. 252, 244 S.E. 2d 833 (1978), and another involving re-sentencing of one defendant, Ward v. State, 239 Ga. 205, 236 S.E. 2d 365 (1975), the Georgia Supreme court has never reversed a death sentence on proportionality grounds. However, this Court in Gregg v. Georgia, supra, and Zant v. Stephens, supra did not pass on the constitutionality of a death statute with this kind of comparability review. Rather, it passed on the validity of the Georgia scheme as written. If the Georgia Supreme court did not apply the statute as it is written, then there was no practical difference between the pre-Furman and post- Furman Georgia death scheme as applied to a defendant like petitioner whose crime involved a valid statutory aggravating circumstance. Nothing in Zant v. Stephens or Gregg v. Georgia countenances such a result C. Petitioner Lacked Any Georgia Forum to Challenge the Comparability Analysis In reviewing the petitioner's conviction, the Georgia Supreme court noted one aggravating circumstance and six mitigating circumstances. It then compared the petitioner's case with twenty- three other cases. Moore v. State, 233 Ga. at 865, 869 213 S.E. 2d at 833, 835. Of these twenty-three offenders, only nine received death sentences, and of those nine, none involved a single mitigating circumstance. Thus, when the District court examined this record, it concluded that (1) the Georgia Supreme court did not consider similar cases and (2) the imposition of this death sentence did “shock the conscience." Moore v. Balkcom, 513 F. Supp. 772, 816, 817 (S.D. Ga. 1981). A total lack of due process engendered this egregious error. At the sentencing hearing the judge refused to consider evenhandedness, stating ..-[The Georgia Supreme Court] will apply "evenhanded justice” to your case with other similar cases that have happened in Georgia. Now, I can't make that determination. The law does not place that discretion in me. It places that discretion solely within the jurisdiction of the Supreme Court of Georgia. 17 Sen. T. 55-56. The sentencing judge correctly stated Georgia law. Blake v. State, 239 Ga. 292, 236 S.E. 2d 637, cert. den. 434 ‘ U.S. 960 (1977). The petitioner next sought the constitutionally mandated proportionality review before the Georgia Supreme Court. Georgia law made no provision for supplying this information to the petitioner so that he might have been heard on whether these cases did provide a proper basis for comparison. The petitioner, unaware of the cases which the Georgia Supreme court would utilize in conducting its review, tried, nonetheless, to call that court's attention to other comparable cases. That Court expressly denied him the right to do so. Moore v. State, supra 233 Ga. at 863-64, 213 S.E. 2d at 832. Petitioner tried once again to raise this issue during his state habeas corpus proceeding, but was precluded again because Georgia law does not permit collateral attacks on the appropriateness of the procedure used in conducting proportionality review. Strozier v. Hopper, 234 Ga. 597, 598, 216 S.E. 2d 847, 849 (1975). Moore v. Hopper, Civ. Action No. 78-22, (Superior Ct., Tattnall Cty, July 13, 1978, p. 16.) Thus, the Federal District court confronted a unique situation where both Georgia law and the United States Constitution demanded proportionality review but, under Georgia law, the finding of proportionality was made from an unchallengeable record in an unreviewable manner. Under these circumstances, the District Court felt compelled to examine the twenty-three cases. This review led the District Court to the conclusion that the petitioner's death sentence violated the Eighth and Fourteenth amendments since it "shocked the conscience" and could not be sustained under any constitutional application of the Georgia death penalty statute. Moore v. Balkcom, supra. 1°/ D. The Circuit Court of Appeals Barred Federal Habeas Review of *“’The Federal District Court seeking to find similar cases that might have sustained the sentence then looked outside the record compiled by the Georgia Supreme Court. Since it found no such cases it set aside the petitioner's death sentence. Moore v. Balkcom, supra at 816. The District Court found no such cases because there were none. To the knowledge of the petitioner no such cases presently exist. 18 the Record before the Georgia Supreme Court. In reversing, the Circuit court held A federal habeas court should not undertake a review of the state supreme court's proportionality review and, in effect, “get out the record” to see if the state court's findings of fact, their conclusion based on a review of similar cases, was supported by the "evidence" in the similar cases. To do so would thrust the federal judiciary into the substantive policy-making area of the state. Moore II, at 1518. This holding constitutes clear error. Since 1915, this court has held that the failure to provide petitioner with a “corrective process" enabling him to raise and litigate his constitutional claim justifies resort to federal habeas corpus. Frank v. Magnum, 237 U.S. 309 (1915). Beginning in 1953 a state prisoner has possessed the right to have a federal court in a habeas corpus proceeding consider the merits of his constitutional claim even though the matter has been fully litigated in the state court. Brown v. Allen, 344 U.S. 443 (1953)22/ The enactment of 28 U.S.C. $2254 in 1966 changed none of this. 28 U.S.C. §2241(c)(3) still continues to provide relief when the prisoner "is held in custody in violation of the Constitution...of the United States..."; and the new §2254(a) only limits federal habeas corpus review to those cases where {the applicant] is in custody in violation of the Consti®ution...of the United States. Since the petitioner alleged a violation of his Eighth Amendment rights, 28 U.S.C. $2254 entitled the petitioner to have the District court review the entire record and pass on his *+/The Court of Appeals relied on its precedent in Spinkellink v. Wainright, 578 F. 2d 582 (5th Cir.1978) cert. denied 440 U.S. 976 (1979). Moore II at 1517-18. However, Spinkellink dealt with the claim that a Pederal District court should undertake its own proportionality review including a consideration of all cases ever decided in Plorida rather than those which the Florida Supreme Court actually considered in deciding Spinkellink's appeal. Spinkellink's contention would have involved the federal courts in reviewing hundreds of cases and required them to continue reviewing new cases until either relief was granted or the petitioner was executed. Moreover, Florida law provides significant controls over the sentencer's discretion and the Florida statute neither expressly provides for nor creates procedures for comparability review. Georgia law is very different, since it provides little guidance to the sentencer, instead relying on proportionality review to prevent the “wanton and freakish imposition of the death penalty.” Finally, in Spinkellink the court did, in fact, examine the cases which Spinkellink insisted demonstrated Gisproportionality. Spinkellink v. Wainright, supra, n. 25. 19 ————————— constitutional claim. Section 2254(d) requires that the Federal District court on 4 habeas corpus review presume the correctness of state court findings on factual issues. But the petitioner's Eighth Amendment claim raises no factual issues. Wo dispute exists. (1) Six mitigating circumstances favored the defendant. (2) None of the twenty-three cases used by the Georgia Supreme Court involved the imposition of the death sentence when a single mitigating factor favored the defendant. (3) The Georgia Supreme Court does not notify offenders as to which cases it will use for its proportionality review. And, (4) no Georgia court permitted the petitioner to argue that the cases chosen were not comparable. Thus the only issues presented to the Federal District court were the “ultimate question[s] as to (1) the constitutionality” of the procedures used in conducting the Georgia proportionality review and (2) whether the record of these flawed proceedings justified the imposition of the death penalty. These are either questions of law or “mixed question[s] of law and fact that [are] not governed by §2254." Sumner v. Mata, 455 U.S. 591, 597 (1982); see also, Jackson v. Virginia, 443 U.S. 307 (1979). But even if this case did involve a question of fact the Federal District court still must examine the entire record. Sumner v. Mata, supra, involved a constitutional challenge to a photographic identification procedure. This Court has never suggested that federal habeas courts are barred from even iooking at the identification evidence in order to address the merits of petitioner's claim. Of course, the federal courts are not necessarily bound by the state court's findings. Section 2254(d) permits a federal court to conclude, for example, that a state finding was "not fairly supported by the record." Sumner v. Mata, supra at 597. But, how does one argue that a finding is “not fairly supported by the record” without looking at the record? In apparent recognition of this totally unprecedented revision of twentieth century federal habeas corpus jurisprudence the Circuit court stated It is the state's responsibility to determine the procedure to be used, if any, in sentencing a 20 criminal to death, See California v. Ramos, 103 S.Ct. at 3451-53. 12 Moore II at i518. If the Circuit court meant that the definition and application of comparability standards involves no federal question whatsoever, its decision conflicts with this Court's ruling in Godfrey v. Georgia, 446 U.S. 420 (1960). “This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Id. at 428 (emphasis supplied). In Godfrey this Court reviewed a Georgia death sentence imposed on the basis of a facially valid aggravating circumstance in order to determine whether the applica- tion of that circumstance to Godfrey's crime met Eighth Amendment standards. Here, the District court examined a facially valid comparability review to determine whether that review as applied had succeeded in eliminating the arbitrary and freakish imposition of the death penalty. This review was authorized by Godfrey v. Georgia, supra and by Jackson v. Virginia, 443 U.S. 307 (1979). Even if this Court were to eliminate constitutionally mandated proportionality review, Georgia, by its own statute, must still accord the petitioner due process when conducting the mandated proportionality review. It cannot discard “all process" nor employ "any process." Georgia must give the petitioner “due process" as defined by the Fourteenth Amendment. Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); Vitek v. Jones, 445 U.S. 480, 488-9 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). Had the Georgia Supreme Court sealed the petitioner's fate by a toss of the coin after finding that he commited a capital offense the petitioner would be entitled to federal habeas relief even though fifty percent of all defendants received life imprisonment. This court has repeatedly held that stare statutes may create liberty interests that are entitled to the *“/Contrary to the understanding of the Circuit court, California v. Ramos does not support its holding. Indeed, this Court reaffirmed that the validity of the Georgia death statutes rests on “meaningful appellate review of each death sentence.” California v. Ramos supra at 3452. This argument of the petitioner addresses itself solely to the procedural inadequacy of this constitutionally mandated appeliate review. procedural protections of the Due Process Clause of the Pourteenth Amendment. Vitek v. Jones, supra at 468. Thus, a defendant has no right to sentencing by a jury but once a state provides for such sentencing the defendant has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by jury in the exercise of its statutory discretion...and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State... Hicks v. Oklahoma, supra at 346. Since a prisoner has a right to a hearing protected by a panoply of due process guarartees when the state seeks to transfer him from a prison ceil to a mental hospital bed, then, at a minimum, those same guarantees should apply when the state proposes to take him from his prison cell to the electric chair. Vitek v. Jones, supra. A convicted prisoner has no right to parole but once the state adopts a parole system it must provide the prisoner with a panoply of due process rights. Greenholtz v. Nebraska Penal Inmates, supra at 680-81. If a prisoner has a right to examine records bearing on his release from prison and to a hearing where he can contest records used by the parole board, it should follow that a prisoner facing execution has a right to notice of those cases that form the basis for concluding that his sentence was proportional and to an opportunity to explain why he thinks the cases chosen are not comparable. Gardner v. Florida, 430 U.S. 349 (1977) supports this conclusion. Justice Stevens, writing for the plurality, rejected the argument that courts can be trusted to analyze .entencing data without the aid of counsel. "...the argument rests on the erroneous premise that the participation of counsel is superfluous to the process of evaluating the relevance and significance of aggravating and mitigating facts. Our belief that debate between adversaries is often essential to the truth seeking function of trial requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases." Gardner v. Florida, supra at 360 (opinion of Stevens, Stewart and Powell, JJ.) III. A CONVICTION BASED UPON A PLEA TO A CAPITAL OFFENSE CANNOT STAND WHEN THE RECORD OF THE SENTENCING PROCEEDINGS DEMONSTRATES THAT THE OFFENDER DID NOT UNDERSTAND THE ELEMENTS OF THE CRIME. 22 Henderson v. Morgan, 426 U.S. 637 (1975) holds that a plea cannot be voluntary in the constitutional sense unless the defendant understands the charges to which he is pleading. Moreover, it is "error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." Boykin v. Alabama, 395 U.S. 238, 242 (1969). To be guilty of malice murder, petitioner had either to intend to deliberately kill the victim or have killed with "an abandoned and malignant heart” where “no considerable provocation appears.” Ga. Code Ann. 26-1101(a)(1978). Petitioner denied that he intended to kill Fredger Stapleton immediately after arrest, St. Ex. 27, 50, 52, to his attorney prior to pleading, S. Hab. T. 38, and in open court prior to being sentenced, Sen. T. 48. Although Moore was under oath, neither the sentencing judge nor the District Attorney asked him a single question to resolve the inconsistency between his statement and his plea. 23/ His denial came at the end of plea and sentencing proceedings in which the judge had neither: (a) read the indictment; (b) nor accurately characterized the crime charged; (c) nor made any attempt to explain a single element of the crime charged to the defendant. Petitioner's plea, while perfectly consistent with the judge's description of the crime, -- that he did "kill one Fredger Stapleton with a certain pistol” (Arr. T. 1),-- was inconsistent with the crime that the grand jury had charged him with committing and for which he was convicted and sentenced to die. The Constitution requires a knowing and intelligent plea. The record before the sentencing judge demonstrated just the opposite. It demonstrated that Moore did not understand the charge to which *°/Under Georgia law, in order to be guilty of malice murder, one has to either intend to deliberately kill or to have killed with "an abandoned and malignant heart" where “no considerable provocation appears." Ga. Code Ann. 26-1101(a)(1978). Moreover, one cannot be convicted of intentional homicide when the evidence of intent is derived from the accused's statement and that statement admits to the killing, but "with the qualifying exclusion of the necessary ingredient of intent, and where there was nothing in the proofs submitted by the state which materially contradicted the defendant's account of what occured, even though the defendant's admission and his testimony may seem unreasonable. Harrell v. State 108 Ga. App. 295, 296, 132 S.E. 2d 787, 788 (1963). 23 he was pleading. Had this case arisen in federal court, McCarthy v. United States 394 U.S. 459 (1969) would demand reversal and repleading without reference to any collateral proceedings. The Seventh Circuit has applied the same rule to state court ptea proceedings which affirmatively demonstrate that a defendant does not understand the elements of the crime to which he is pleading. Nash v. Israel 707 F. 2d 299 (7th Cir. 1983). However, the Eleventh Circuit court rejected the federal standard, as well as the approach of the Seventh Circuit. Instead, it erroneously upheld defendant's plea based on his trial lawyer's vague testimony at a state habeas proceeding held four years after his trial. Moore II at 1525-26. The McCarthy rule must apply to this capital case for precisely the reason which led the Supreme Court to adopt it. Later efforts to reconstruct what the defendant understood "in this highly subjective area” are fraught with risk. As this Court has noted, even shifting to the government the burden of proof on the issue of knowledge would be of little value to the defendant. "No matter how true these allegations [that the defendant did not understand the charge] rarely, if ever, cana defendant corroborate them in a post plea voluntariness hearing." McCarthy v. United States, 394 U.S. at 469. Petitioner's conviction, like McCarthy's, cannot be sustained by subsequent findings because "...greater uncertainty is bound to exist since in the resolution of disputed contentions problems of credibility and reliability of memory cannot be avoided.” McCarthy v. United States, id at 471 quoting Waddy v. Heer, 383 F 2d 789, 794 (6th Cir. 1967). This case involves a plea to a death penalty which accentuates the need for the most reliable procedures. Zant v. Stephens, Supra, 103 S.Ct. at 2747. A plea to a capital charge does more than waive constitutional rights. The defendant who pleads guilty foregoes the chance to avoid the death penalty by persuading the factfinder that he is not guilty of a capital crime. For this very reason, such pleas are rare. There have been but five such pleas in Georgia since 1974. When they do occur, however, the Eighth and Fourteenth Amendments demand an affirmative demonstration, on the 24 record of the sentencing proceedings, that the defendant, in fact, understood the charge to which he pled. When, as here, that record demonstrates a lack of understanding, the plea is void and cannot be saved by reference to vague testimony at a collateral proceeding held four years later when memories are dim and professional reputations may be at stake. In the vast number of non-capital cases resolved by plea, the risk of an unreliable conviction may be tolerable because of considerations of comity and administrative convenience. Due process, in such cases, need not be the best practicable process. In the rare case of a plea to a capital crime, however, “the risk of an unwarranted conviction” must be held to an absolute minimum. The "far more important need" for individualized treatment in capital cases, recognized by Justice Burger in Lockett v. Ohio, Supra, demands, as a matter of the Eighth and Pourteenth Amendments, the best practicable process. Mr. Moore was not afforded this and the defect cannot be cured by reference to collateral proceedings. This conviction must be reversed. CONCLUSION For the reasons advanced above, the petition for certiorari should be granted and the decision below summarily reversed or, in the alternative, this case should be set down for briefing and argument. Dated: January 12, 1984 w @ wn Le! @ Q laa hh ully submitted, A / —— } / / /, 77 tu | LT Daniel J. Givelber Northeastern University School of Law 400 Huntington Avenue Boston, Massachusetts 02115 (617) 437-3943 COUNSEL OF RECORD DANIEL J. GIVELBER DONALD H. BERMAN Northeastern University School of Law 400 Huntington Avenue Boston, Massachusetts 02115 (617) 437-3943 (617) 437-3346 ATTORNEYS FOR PETITIONER 26 83-6084 : Mnited States Court of Appeals FOR THE ELEVENTH CIRCUIT No. 81-7418 D.C. Docket No.cv478-309 WILLIAM NEAL MOORE, Respondent, Cross-Petitioner, ‘ versus CHARLES BALKCOM, Warden, ARTHUR K. BOLTON, Attorney General, P Petitioners, Cross-Respondents. Appeals from the United States District Court for the Southern District of Georgia Before HILL and HENDERSON, Circuit Judges, and CARZA*, Senior Circuit Judge. JUDGMENT ON REHEARING This cause came on to be heard on petitioners’ petition for rehearing; ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court that the opinion and judgment originally entered by this Court is withdrawn; and the judgment of the er District Court appealed from is AFFIRMED IN PART and REVERSED IN PART. September 30, 1983 ‘ED AS MANDATEé: Al IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ~. 708 PUBLISH WILLIAM NEAL MOORE, Respondent, Cross-Petitioner, CHARLES BALKCOM, Warden ARTHUR K. BOLTON, Attorney * General, Petitioners, Cross~-Respondents. Appeals from the United States District Court for the Southern District of Georgia (December 13, 1983) ON PETITION POR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion September 30, 1983, llth Cir., 1983, P.2d ) Before HILL and HENDERSON, Circuit Judges, and GARZA*, Senior Circuit Judge. PER CURIAM: * Honorable Reynaldo G. Garza, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. On petition for rehearing and suggestion for rehearing en banc, Respondent-Cross Petitioner William Neal Moore asserts that although the Supreme Court of Georgia considered all mitigating circumstances, the sentencing judge considered only Moore’s having made true statements and having cooperated with officials. Moore also contends that the trial judge viewed the death sentence as mandatory in this case and did not understand that he possessed discretion to impose a life sentence. In appraising these contentions, we have made a further complete review of the sentencing proceeding and add the fol- lowing to Part III of our opinion: Judge McMillan properly considered all of the evidence in mitigation before exercising his Giscretion to impose death. The court listened carefully throughout the presenta- tion of mitigation evidence, asking each witness questions,and concluding with each _witness by asking whether he had anything further to say. Moore's relatives testified that Moore was a good boy who had never before been in any serious trouble. Moore testified at the sentencing hearing that he shot and killed-the victim out of a combina- tion of fright and intoxication. Then, the sentencing judge further noted as additional mitigating circumstances the fact of Moore's truthfulness and cooperation. Furthermore, Judge McMillan made it clear at _ the sentencing proceeding that he understood and accepted the mandate of Georgia law, as announced in Coley v. State, 231 Ga. 829, 204 S.E.24 612 (1974), that he had discretion in sentencing. We are satisfied that the court considered all of the evidence offered in mitigation before imposing death and are satisfied that the court understood that it possessed discretion to impose a life sentence. A3 With these additional observations, the petition for rehearing is DENIED. Ho menber of this panel nor judge in regular service on the court having requested that the court be polled on rehearing en banc (Rule 35, Pederal Rules of Appellate Procedure; Eleventh Circuit Rule 26), the suggestion for rehearing en banc is DENIED. “ei William Neal MOORE, Respondent, Cross-Petitioner, bo mee eer Mae oh tls Charles BALKCOM, Warden, Arthur K. Bolton, Attorney General, Petitioners, * +Btens -Cross-Respondents. + en Ne 8-4 United States Court of Appeals, ~ Eleventh Circuit. “+> 2° "Sept 80, 1988: -,..The United States District, Court for the Southern District of Georgia, B. Avant Edenfield, J., denied relief in habeas corpus except as to death sentence. An appeal and cross appeal were taken, and original deci- sidn thereon was reported, 709 F.2d 1353. On petition for rehearing and suggestion for rehearing en banc, the Court of Ap- peals, James C. Hill, Circuit Judge, held that: (1) it is state’s responsibility to deter- mine procedure to be used, if any, in sen- tencing criminal to death, and federal habe- as court should not undertake review of state Supreme Court’s proportionality re- view and, in effect, “get out the record” to see if state court's findings of fact, their conclusion based on review of similar cases, was supported by the “evidence” in the similar cases; (2) under Georgia law, once sentencing authority has determined exist- 1512 EN a sentencing authority possesses unbridled discretion to determine, based on relevant and accurate information, whether to im- cannot be controlled; and (3) where Geor- gia state court judge in determining wheth- er. to impose capital punishment had found statutory aggravating circumstance, it was not improper for him to consider circum- stance of particular case before him which was not prescribed in the statute. -. - Petition for rehearing granted; judg- ment affirmed except as to granting of relief from death sentence; — eye ccnagrong 4. t L Homicide 355 Finding that defendant had cuales capital offense, malice murder, while in commission of another capital crime, armed robbery, was alone sufficient to support ~ death sentence under Georgia law, and was supported by the record. O.C.G.A §§ 16- 5-1, a (c), 17-10-35, 17-10- 8c). - F ote Gate ont Federal court in reviewing, in habeas corpus proceeding, Georgia court's propor- tionality review of death sentence would examine only whether Georgia Supreme Court had properly performed test assigned to it under the Georgia statutes, and would give great deference to Georgia Supreme ’ Court's method of conducting its propor- tionality review. O.C.G.A. §§ 17-10-80(b), (0X2), {c), 17-10-31; 17-10-35, 11-10-S{e), 3 Criminal Law’ i208.1() + It is for state government, as matter of state ttstutery lew, subject to federal con- stitutional constraints, to decide whether to provide capital punishment mechanism and to provide for appropriate procedural! safe- guards, though federal habeas corpus court must and should examine whether applica- tion of approved sentencing procedures in particular case creates substantial risk that punishment has been inflicted in arbitrary © and capricious manner. 0.C.G.A. 4§ 17- _ ae. “he +. 116 FEDERAL REPORTER, 2d SERIES _ 10-30), (bX2), (c), 17-10-31, 17-10-35, 17- 10-35(c); U.S.C_A. Const Amend. 6. 4. Habeas Corpus 90 It is state's responsibility to determine procedure to be used, if any, in sentencing criminal to death, «nd federal habeas court should not undertake review of state Su- preme Court's proportionality review and, in effect, “get out the record” to see if state court’s findings “of fact, their conclusion based on review of similar cases, was sup- “ported by “the™“evidence”’ in the similar cases. OCGA $§ 55-0 I, (c), 17- 1038, 17-10-8(c). * — Be z & Habeas Corpus. 105 pen ~ Federal district court habeas.corpus re- view of state-imposed death sentence re- mains confined to whether state sentencing procedure both-on its face and as applied violated Eighth and Fourteenth Amend- ments. U.S.C.A Const.Amends. 8, 14. 6. Criminal Law >1208.1(6) Discretion need not be eliminated from ’ 7. Criminal Law ¢=1208.1(4, 5) 9: Under Georgia law, sentencing authori- - ty possesses no discretion in either redefin- ing crimes for which a defendant may be sentenced to death or adding to list of ag- gravating circumstances which make de | fendant eligible for such sentence, but once — sentencing authority has determined exis‘- ence of statutory aggravating circumstance, | sentencing authority possesses unbridicd discretion to determine, based on relevant and accurate information, whether to im- pose death sentence, and such discretion cannot be controlled. O.C.GA. §§ 17-10 BObX2), (c), 17-10-35, 17-10-385{e); US CA. Const Amends. 8,14 , .. & Criminal Law €=1208.1(5) -*- Under Georgia law, sentencing authori- ty, in determining whether to impose death sentence, can assign what it deems appre cumstances and, with unbridled considera- tion of mitigating. circumstances, sentenc- ing authority may consider something to be mitigating that others might consider ag- © gravating, and different sentencing author- ities can assign different weights to same aggravating circumstances, since Constitu- tion does not assign specific weights to dif- ferent aggravating or circum- mitigating stances. OCGA §§ 17-10-30(bY{2), {), 17-10-35, 17-10-85(c).: sobhp eT - in 9. Crimina) Law 1147 ~ Se ‘ Dinstion hte fo Guorga’ Bigesins _ Court's review of capital cases, and court exercises discretion in determining whether death senterice ‘was imposed under influ- ence of passion, prejudice or other arbitrary . factors and in selecting “similar cases” for . its proportionality review. os 17- 10-30(c), 17-10-35. 2 10. Criminal Law 9=1208.1(5) er . ~ Where Georgia state court: judge, in determining whether to impose capital pun- ishment, had found statutory aggravating circumstance, it'was not improper for him to consider circumstance of particular case before him which was'not prescribed in the - Statute. OCGA. § 17-10-2 | a t - BY, Hitt mest ‘1L Crisinal Law =1208.1(5) 3 ~ ont tory i tion of murder and robbery as so iggravat- ing’ crime 23 to: outweigh all mitigating ins was no constitutional error... 0.C.G_A. §§ 17-10-30, 17-10-30(b), (bX2), (c), 17- 10-81, 17-10-35, 17-10-85(a, ¢); USCA ConstAmend 6 12. Habeas Corpus ¢85.3(2) Federal district court in habeas corpus proceeding properly used testimony re- ceived from petitioner and his counsel at state habeas proceeding in addressing issue ad . =. s prewt nyt192 MOORE v. BALKCOM::9 Seis” ; (Chto as 716 F.24 151) (1983) e gciate weight > gutter attains de whether plea was a and voluntary. BUSCA. § 254d). tet 13 Criminal Law €>273.1(4)" °° -~State trial courts need not’specifically address each individual element required under state statute in order to accept guilty plea but, rather, judge need only explain statute sufficiently to give defendant real and adequate notice of nature of charge porate malay sg tag rn ny District court in habeas corpus proceed- ing properly relied upon written factual . determinations of state habeas corpus court after full evidentiary hearing in concluding that petitioner had been aware of his right to withdraw his plea and made reasoned decision not to do so, as against petitioner’s own testimony that he had been unaware of such right 28 US.CA § 2254(d). 15. Criminal Law ¢=64L13(7) .. -. Decision by defendant and his counsel to seek relief on appeal rather than to with- draw plea represented strategic decision and, absent showing of exceptional Circum- stances, defendant was provided with effec- tive assistance of ana USCA. Const. > we _Amend. 6. 16. Criminal Law ¢>1088.12 obras. but granting or denial of leave to amend and lies within discretion of trial court subject to reversal only for abuse. Rules Civ.Proc_Rule 1a), 23 USCA; US.CA. § 2254(d). * Judge. Reine 18. Habeas Corpus 56 a Futility was proper ground upon which to deny proposed amendment of petition for habeas corpus relief. 2 USCA § 22548) . Charles E. Brown, George M.- Weaver, - Atlanta, Ga, for petitioners, cross-respon- dents. *-.- g/a2.*. «Appeals from the United States District Court for the Southern District of Georgia eT a. “SRicl-f ‘ON PETITION FOR REHEARING AND -** SUGGESTION FOR REHEARING ER oh (Opinion June 23, 1983, 11 Cir., 1983, © ll. - $09 F.2d 1353) id fase ’ -” Before HILL and RENDERSON, Circuit Judges, and GARZA*, Senior Circuit JAMES C. HILL, Cireuit Judge: The petition for rehearing is granted. The prior panel opinion, issued June 23, 1983, is withdrawn and the following opin- ion is substituted in its place. -° - Petitioner, William Neal Moore, was con- victed of malice murder and armed robbery in the Superior Court of Jefferson County, . Georgia and sentenced to death Both par- ties to this habeas corpus action raise nu- merous issues in this appeal and cross-ap- pe2l. We conclude that the district court correctly denied petitioner’ relief on his claims that he was unconstitutionally con- ~ vieted on the basis of an unknowing plea to ; malice murder, that h- was denied effective assistance of counsel, and that the failure to transcribe closing arguments deprived him of a constitutionally adequate review of his death sentence. In our prior opinion, we — concluded that the trial court had commit- - © Honorable Reynaldo G.” “Garza, US. Circuit - Judge for the Fifth Circuit, sitting by designa- A8 1514. .._ - 116 FEDERAL REPORTER, 24 SERIES ted constitutional error in imposing th death sentence on the basis of nonstatut,— aggravating circumstances. In Zant y. ¢.,. phens, — US. —, 103 SCL 2m, = L.Ed2d 235 (1983), the Supreme Court «+. ’ dressed the issue of whether a death pea.i. ty imposed under the Georgia death penal;, scheme based on three statutory aggrava:. ing circumstances, one of which was sulw. quently held to be invalid by the Georg, Supreme Court, can be constitutionally y;. held. . The Court held that the narrowinz function of statutory aggravating factors y achieved when the sentence is supported L, at least one statutory aggravating circum. stance. This decision controls, and is con. trary to,.our previous conclusion that th sentence must be vacated. Accordingly, «x reverse the judgment of the district court on this issue. © 322" _* L. Procedural History A state grand jury indicted petitioner for the April 2, 1974 malice murder and arma! robbery of Fredger Stapleton. At a hear- -ing conducted by Judge Walter C. McMMil- lan, Jr. on June 4, 1974, petitioner waived his right to a jury trial with respect to both guilt and sentence and entered a plea of guilty to all charges. At the sentencing hearing, Judge McMillan sentenced the pe- titioner to death. ; i *' The Georgia Supreme Court conducted its mandatory review of the death sentence in accordance with the Georgia statutory pro- cedure~- GaCode Ann. § 17-10-35 (192) (formerly Ga.Code*Ann. § 27-2537). The court affirmed petitioner's conviction and sentence in a per curiam opinion, with one judge dissenting, and denied Moore's peti- tion for rehesring.’* Moore v. Stato, 233 Ga 861, 213 S.E2d 829 (1975). The United States Supreme Court denied Moore's pct tion for certiorari” Moore v. Georgia, 43 US. 910, 9 “SCt $222, 49 LEd2d 1218 (1976). Moore then filed a declaratory judgment ‘action in state court seeking a new sentenc- asus Bn re - 2 - “i... 0th’? on &° é * MOORE vy. BALKCOM 7.2% *-* Cite a3 716 F.24 1511 (1983) . ing proceeding. “The court denied relief and the Georgia Supreme Court affirmed Moore v. State, 239 Ga. 67, 235 S.E.2d 519 (1977). The United States Supreme Court denied certiorari-' Moore v. Georgia, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed. 2d 159 (1977. Moore then brought a habeas cor, == = in state court. . The court denied all-relief - Moore's application for a certificate of prob- able cause to appeal = wise. Petitioner filed the present habeas corpus action on November 23, 1978 in the federal ae ote -~ Facts P = + At the time of Fredger Stapleton’s death, Moore was an enlisted man in the United _ 1515 ~ HoWever; he armed himself with a .38 cali- ber pistol in case he met opposition in his - ‘robbery attempt. Moore claims that he did 4 not intend to kill Stapleton. - *°7>"- =. “Moore claims that Stapleton confronted him with ashotgun. Stapleton fired a shot- gun blast at Moore which missed. Staple- - ton then hit Moore in the leg with the gun» barrel. Petitioner then fired four or five shots at Stapleton, who was hit and killed by two bullets which struck him in the .- chest. RE. Me neonns’ After the shooting, Moore removed two billfolds from the victim's pockets and took the shotgun. The money taken from: Sta- pleton totaled approximately $5700. Moore was subsequently arrested and cooperated with the police during the investigation. ~ Sil? SO So* o > « ptt ag - . A. Imposition of Sentence : The district court, holding that the Geor- gia Supreme Court did not properly dis- charge its statutory duty of ‘appellate re- view, concluded that the imposition of the . death penalty in this case “shocks the con- - science” and granted relief with regard to sentence. Under the Georgia system, the sentencing authority, either a judge or a jury, may impose the death sentence when it finds the existence of a statutory aggra- vating circumstance.' Ga.Code Ann. § 17- i t i | tis it i HT : : i i ; iu 3 : { ef | F | or fireman while engaged in the performance of 1516 10-31 (1982) (formerly Ga.Code Ann. § 26- 3102). If the sentencing authority elects to impose the death penalty, it must specify the ing circumstance which it found a reasonable doubt. Ga Code Ann. § 17-10-30({c) (1982) (formerly Ga Code Ann. § 27-2534.1(c). - Whenever the ’ death penalty is imposed, the Georgia Su- * preme Court must conduct an expedited review of the case. Ga Code Ann. § 17-10— 85 (1982) (formerly GaCode Ann. § 27-— 2537). In reviewing the sentence, the court must determine whether the sentence was - ‘+> imposed “under: the influence of passion, — : prejudice, or any other arbitrary factor,” whether the evidence supports the finding of a statutory cireumstance, aggravating _ and “whether the sentence of death is ex- ~ cessive or disproportionate to the penalty ~ imposed in similar cases, considering both thé crime and the defendant.” GaCode Ann. § 17-10-35(c) (1982) ae ™ Code Ann. § 27-2537(c)). . -[1] In the case at bar, Judge MeMillai 55 that I made iy 3, om sentenced Moore to death after finding that petitioner had committed a capital offense, malice marder, while in the commission’ of another capital crime, armed robbery. This. finding was itself sufficient to support a death sentence under Georgia law and was by the record. See GaCode Anno § 17-10-80(bX2) (1982) "(formerly GaCode Ann. § 27-2534. 1(bX2)). . After reading his order and announcing the sentence which + he imposed? Judge McMillan continued: “* “ [For the purposes of this Court, for and to be in-a bome, and - man was asleep, I don't any person to be, not this H ze atts z i (une Hie Te (1982) (formerly oP rf AF “- ‘man, but any person, to be asleep in his home, to be invaded by an intruder, that’s armed with weapons, that’s prepared nec-— essarily to kill (or otherwise the weapons wouldn't be there in the hands of the intruder), is probably an invasion of the highest injustice that another can do. Now, I can only imagine that anyone that is invaded by an intruder with an armed ’ weapon, the fear that they must go * through when they are encountered in _FSuch a situation. So I feel like that if the * Court ever does require mandatory pun- . ‘ jshment—that -is when ‘they specify by ‘saw what offenses will have to be suf- ~ fered by the electric chair—that one of - these statutory offenses probably will be . that when a person is robbed and killed in his home, that mandatory, as contrasted to. discretionary, statutory aggravated circumstances will probably warrant the electric chair without life imprisonment. * ‘That justifies me in making the finding garnte * * In granting relief from the sentence, the district court found that the sentence was based primarily on the location of the kill- ing, Stapleton’s home, and not on the pres- ence of the aggravating circumstance artic- ulated in the trial judge's order,’ The dis- trict court concluded that the Georgia Su- preme Court violated its statutory duty to review “similar cases” by focusing on cases involving different circumstances. In the district court's view, “similar cases” would be those involving killing in the home. The district court engaged in its own -propor- tionality review on this basis and concluded that the death penalty, in the case at bar . “shocked the conscience.” 4 ettege—a “RB. District Court's Analysis na Judge” Edenfield ‘held that the death penalty was unconstitutionally im- posed in this case after concluding that the 2. Judge McMillan made his comments after he ~ bad read his order which cites only one statuto- “Ty aggrevating circumstance as the basis for * the sentence. He had not concluded the sen- . tencing proceeding and his remarks should therefore be viewed as part of the proceedings. Alo Re Gregg v. Georgia, 428 U.S. at 224, 96 S.Ct at 2948 (White, J., joined by Burger, CJ., * and Rehnquist, J., ‘concurring); see Zant v. Stephens, 108 S.Ct. at 2744 As a federal court reviewing - collateral attack on a state prosecution, we must give great deference to the Georgia Supreme - . Court’s method of ‘conducting its propor- tionality review.- See Barefoot v. Estelle, j —="US ——, 103 S.Ct 8383, 3391, 77 L.E424 1090 (1983)-“The role of federal courts are not forums in which to relitigate state trials” Jd. It.is the decision of.the - state government as a matter of state stat- utory law, subject to federal constitutional ’ constraints, to decide. whether or not. to provide a capital ‘punishment mechanism and to provide for appropriate procedural - safeguards. See California vy. Ramos, —~ US.-——;. 108 _S.Ct*.3446, 3451-53,> 77 L.E4.24 1171 (1983); “Zant v. Stephens, 108° S.Ct. at 2743-44; Eddings v. Oklahoma, 455 US.:104, 127-28, 102 S.Ct: 869, 882-83,-71 | LEA24 1 (1982) (Burger, C.J., joined’ by White, Blackmun, aid Rehnquist, JJ., dis- - senting); Godfrey v. Georgia, 446 U.S. 420, 3. We do not decide whether the Supreme Court some type of proportionality vis v. Pulley, 692 F.2d 1189, 1196-97 (9th Cir. i E I : f to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty”), Wainwright v. Spenkelink, 442 US. 901, 13, 99 SCL 2421, 2422, © ~ LEd.2d, 1075 (1979) (Rehnquist, J., dissent- v. Louisiana, 428 -US...825, 337, 96 S.Ct. 8001, 3008, 49 L.Ed.2d 974 (1976) (White, J., joined by Burger, CJ., Blackmun and Rehn- ‘quist, JJ., dissenting). Federal habeas courts must and should examine whether the application of approved sentencing pro- cedures in a particular’ case creates a sub- stantial risk that the punishment has been (1982), Eddings v, Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 LEd2d 1 (1982); Godfrey y. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 LEd2d 398 (1980); Gregg v. Georgia, 428 US. 153, 96 S.Ct 2909, 49 LEd2d 859 (1976); Spinkellink v. Wainwright, 578 F.2d 582, 604 (Sth Cir.1978), cert. denied, 440 US. 976, 99 S.Ct, 1548, 59 LEd2d 796 (1976). - This court concluded in Spinkellink v. Wainwright that a federal habeas court generally cannot reexamine the proportion- ality review performed by a state appellate court in = capital case. 578 F.2d at 4. - had contended that his crime, alty cases, was insufficiently gruesome or heinous to warrant the death penalty, id at 602, and had highlighted seven other cases in which the Florida Supreme Court had 1982), cert. granted, —— US. —-, 103 S.C 1425, 75 LEd2d 787 (1983) (No. 82-1095); Williams v. Maggio, 679 F.2d 381, 395 Gth Cir. 1982) (en banc) | ‘=. our conclusion would be no more, nor no - Jess, accurate’ Such is the human condi- JTS. sa patently unjust and would shock the ‘seience” Id at 606n 2B. ducted by the Georgia Supreme Court in this case reached a result! so extreme as to. “shock the conscience.” Blake v. Zant, 513 F.Supp. 772 at 812 Looking at -Judge McMillan’s comment, the district court con- ou GB Pe” Pees Be tu 3» 4 Ina sense, Moore's argument provides a sig- Spinkellink I : | input gent a3 cs Al2 Gn eumstance found in Judge McMillan’s order. In the district court’s view, the : = [A] We hold that the district court erred in conducting ,its own proportionality re- undertake a review of the state supreme court’s proportionality review and, in effect, “get out the record” to see if the state court’s’ findings’ df “fact; their ‘conclusion based on a review of similar cases, was adequate safeguard against the freakish imposition of capital punishment’ have suggested different methods of defining ‘S “similar cases.” In State v. Copeland, S.C, 300 ) S£.24 63 (1982), the South Carolina Supreme Gregg v.: Cusine: 00 Oh..'an, 96-S.Ce_ 2909, 49 - 859. (1976); «Proffitt -v. Florida, 428 US. 242; 96-S.Ct.. 2960,'49 L.Ed.2d 913 (1976). While-we may have ~ reached ‘ a~ different - conclusion -regarding - the proportionality of the sentence had we-- conducted a “comparison, we. cannot conclude that the Georgia Supreme. Court’s ‘review or the -result jt reached ene te geeed wee aad TTL "Cee GH c. ‘Judge McMillan’s Lexpention can "the Death Sentence : -i- In Gat Gegheal pained oplaion, we cinchad’ ed that the sentencing judge committed constitutional error by considering 2 pon - statutory ‘aggravating factor in. imposing the death . Moore v. Balkcom, 709 E556 MOORE ¥2BALKCOM 737-5%> ° aE: : . Chto as 716 F.2d 151) (1983) of the nonstatutory aggravating factor con- - death sentence. . es eek et Rene % Genk, ob Sa 1519 sidered by Judge Dicbillan j in es the iy US. 238, 92 SCt 2726, 33 -LEd2d 346 (1971), and its progeny has been that unbri-- dled discretion in death penalty procedures leading to imposition of the sentence in a discriminatory, arbitrary;:or ~ capricious © ~~ manner is uhconstitutional . See Zant “V7. ~*: Stephens, 103 S.Ct. at 2746-47; Gardner v: - Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-05, 51 L_Ed.2d 393 (1977) (Stevens, J; joined by Stewart and Powell, JJ.); Gregg ~ v. Georgia, 423 U.S. 153,..188-89, 96 S.Ct 2909, 2932-33, 49 L.Ed.2d 859 (1976) (Stew- . _ art, J., joined by Powell and Stevens, JJ.) (“Furman mandates that where discretion is.afforded a-sentencing body on a matter 80 grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action); id. at 199, 96 S.Ct. at 2937 (existence of discretionary stage does not invalidate Georgia proce- dure); id. at 220-23, 96 S.Ct at 2947-48 (White, J.,: joined by Burger, CJ., and Rehnquist, J., concurring); Proffitt v. Flori- da, 423 US. 242, 252-54, 96 S.Ct 2960, 2966-67, 49 L.Bd.2d 913 (1976) (Stewart, J., joined by Powell and Stevens, JJ.); id. at 258, 96 S.Ct. at 2969 (“the requirements of Furman are satisfied when the sentencing authority's discretion is guided and chan- - neled by requiring examination of specific factors that argue in favor of or against ” imposition of the death penalty, thus elimi- science, we would be required to remand the _ case to allow the state court to resentence the Wainwright, 578 F.2d at 606 n 28 7. The Supreme Court rendered its decision in Stephens on June 22, 1983. We issued our original opinion in this case on June 23, 1983. 7.4 1520 : in its imposition”); Jurek v. Texas, 3 US. 262, 270-74, 96: S.Ct. 2950, 2955-57, 49 L.Ed.2d 929 (1976) (Stewart, J., joined by . Powell and Stevens, JJ.) (“the Texas capi-. tal-sentencing procedure guides and focuses "the ‘jury's objective consideration of the ‘particularized circumstance of the individu- al offense and the individua] offender be- fore it can impose a sentence of death”). “N6] These and subsequent cases have emphasized ‘that. discretion need not be eliminated from cafital punishment mecha- nisms; rather, the Supreme Court has fo- . -eused on’ channeling discretion to minimize the risk of arbitrary decision making. E.g., Eddings ‘v. Oklahoma, 455 U.S. 104, 110-15, { 102 S.Ct. 869, 874-76, 71 L_Ed.2d 1 (1982); ~ Godfrey v. Georgia, 446 U.S. 420, 427-23, . 100 S.Ct. 1759, 1764-65, 64. LEd2d 398 - (1980) (Stewart, J., joined by Blackmun, “Powell, and Stevens, JJ.); Lockett v. Ohio; - 438 U.S. 586, 605, 98 S.Ct 2954, 2965, 57 973 (1978) (plurality opinion); Gardner v. Florida, 430 -U.S..349, 358, 97 S.Ct. 1197, 1204-05, 51 L.Ed2d 393 (1977) (Stevens, J., joined by Stewart and Powell, JJ.), Gregg v. Georgia, 428 US. at 188-89, 96 S.Ct. at 2932-83 (Stewart, J., joined by” Powell and Stevens, JJ.); Proffitt v. Flori- _ da, 42 US. at 258, 96 S.Ct. at 2969 (Stew- at 248-49 & on. 11, 92 S.Ct at 2731-82 4 n 11 (Douglas, J., concurring); id at 309-10, 92 S.Ct at 2762-63 (Stewart, J, coneur- ring); Mat OE, SB ROR. of S108 (WAG, Cs mitigating circumstances would result in » arbitrary and capricious death sentences . Moreover, I greatly fear that the effect of ~... the Court's decision today will be to compel constitutionally a restoration of the state of affairs ‘at the time Furman was decided, “ “Swhere the death penalty is imposed so errati- cally and the threat of execution is so attenu- ated for even the most atrocious murders ©" that “its imposition would then be the point- ~ ‘Jess and needless extinction of life with only * marginal contributions to any discernible so D die dal or 716 FEDERAL’ — 2 SERIES ceaaniail Furman requires only that sentencing discretion “be ‘directed and lim- ited,’ so that the death penalty [is] imposed in a more consistent and rational manner and so that there {is] a ‘meaningful basis for distinguishing the . .; cases in which it is imposed from .....the many cases in which it is not.’ Lockett v. Ohio, 438 U.S. at 601, 98 S.Ct at 2963 (quoting Gregg v. Georgia, 428 US. at 188-89,,96 S.Ct. at 2932). In Lockett, the Court ‘broadened the — sentencing authority's discretion to allow consideration of all mitigating circumstanc- es.in making. the individualized sentencing | avers gee ae . . erts. SAHNI: 22+ -ae-dens. = ;, The Supreme Court's scentanet of Cems. tion in capita] sentencing reflects an inher- ent tension between , the requirement of in- | dividualized sentencing and objective stan- dards. By approving the Georgia capital punishment procedure under which no per- son might be sentenced to death: unless found guilty of a statutorily defined capital - offense under circumstances specified by ; the legislature as aggravating .the crime, the Court undertook to eliminate discretion | (other than the inherent pardoning power | of an American jury) in finding the defend- ant eligible for the death penalty. By de- | pouncing mandatory death ~penalties in Woodson and requiring that the sentencing authority be free to consider any mitigating circumstances, statutory or not, in Lockett, the Court emphasized the importance of individualized consideration of each defend- ant and :all circumstances,» in> deciding whether or not to. impose a sentence less than death — In Zant v. Stephens, — US. public purposes.” . Furman ¥. Georgia, = Supra {408 US), at 312 [82 S.C. at 2764) ~~ (White, J., concurring). ..By requiring as a -r_» Matter of constitutional law that sentencing c-~ authorities be permitied to consider and in i their discretion to act upon any and all miti- gating circumstances the Court permits them to refuse to impose the death penalty no irs matter what the circurnstances of the crime. This invites a return to the pre-Furman days * when the death penalty was generally re- | eee ee has least consideration. - * 438 US. at 623, 98 SCL at 2983. -, Cite as 716 F.24 1511 (1983) —. , 108 S.Ct.-2783, 77 LBd2d 285 (1983), ; the Supreme Court noted that “two themes. guided the concern with eliminating arbi-_ trariness in: capital. sentencing; First, the Court noted-that-no perfect procedure ex- . __ ists for deciding in.which cases governmen- ‘tal authority- should be. uséd -to- impose death.” Id. at 2747 (citing Lockett v. Ohio, ~~» 438 US. at 605,98 S.Ct at 2965 (plurality : opinion))....Second, the Court recognized ° Cat essen ie a 0 quieting Sitter . ence between and any other permissi- . ble form-of punisixment, ‘there is a corre. - sponding difference in the need for reliabili- ty in the determuation that death is the punish:nent in a specific case.’” - &ppropriate - Id. (citing Wopdson v.North Carolina, 423_ US. at 305, 96 S.Ct:at 2991 (Stewart, J, ’ Joined by Powell and Stevens, JJ.)). In determining whether Judge McMillan con- _ ‘Stitutionally imposed Moore’s death sen- tence, we do net substitute our judgment’ -- on the sentence. Rather, we examine - whether Judge McMillan properly examined _the factors surrounding the crime, carefully considering - all mitigating - circumstances, before exercising his discretion in a proper- - ly channeled fashion in making the awe-- some sentencing decision in accordance with & constitutional capital punishment mecha- nism. - “hee ¢ re nial 25 BN Ay “The Georgia death penalty system has channeled discretion to certain limited areas. See generally Zant v. Stephens, 250 “te Ga. 97, 297 SE.2d 1 (1982). The defendant must have'been accused and convicted of committing’ a crime for which the state allows imposition of the death penalty in tion of cruet and unusual punishment. See Coker v. Georgiz, 433 U.S. 584; 591-98, 97 S.Ct. 2861, 2865-69, 53 L.Ed 2d ‘982 (1977) | (White, J, joined by Stewart, Blackmun, ee eer against mitigating circumstances. Goodwin v. Balkcom, 684 F.2d 734, 801-02 (1 1th Cir. 1982), cert. denied, — U.S. ——, 103 S.Ct. 1798, 76 LEd 2d 364 (1983). Compare Ga.Code Ann. § 17-10-31 (1982) (formeriy Ga. § 26-3102) Fla Stat Ann. Code Ann. with Stage “2 MOORE veBALKCOMA#™: 3. Se. 1621 - 7 { : . which might be capricious is. denounced, deserves serious punishment, the death pen .*! alty, which is unique in its-severity and > irreversibility, is an excessive penalty for ~ the rapist who does not take a human life). In ‘order ‘absolutely to structure discretion ~~ | . while not requiring mandatory death’ sen- - tences, Georgia’ has strictly limited the ap~ - plication of the death sentence to cases. * whére the séntencing authority finds-the existence of certain enumerated statutorily ; suthorized aggravating circumstances. “The sentencing authority potsesses no discretion. in either redefining the trimes for which a ott defendant may be sentenced to death or z adding-to the list of aggravating circum- * stances which make a defendant eligible for such sentence. Once the sentencing author- ity has determined the existence of a statu-' tory aggravating circumstance, the defend- -ant becomes eligible for a capital sentence. When this stage has been reached, the sen- tencing authority possesses unbridled dis- cretion to determine, bared on relevant and accurate information, whether to impose a - death sentence.’ This discretion cannot be controlled if the decision-maker is to make > an individualized decision at this eligibility level. See Eddings v..Oklahoma, 455 U.S. at 123-28, 102 S.Ct. at 880-83 (Burger, CJ, joined by White, Blackmun, and Rehnquist, JJ., dissenting)... The sentencing authority possesses unbridled discretion to consider — any perceived mitigating circumstances. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2¢ 973 (1978). While discretion to impose the death penalty for any reason - Furman v. Georgia, 08 US. 238, 92 S.Ct 2726, 33 L.Ed.2d 346 (1971), it now appears authority can assign what it deems the ap- ' propriate weight to particular mitigating $4 921.141(2\(0) and (c). Both systems, how- -- - circumstances. Mercover: sith enteilied consideration of mitigating circumstances » . the sentencing. authority may consider something. to be mitigating that others might consider aggravating. Some might - say that a stable family background is miti- ~ gating; others might reasonably say that ree te 103 pag cr fama -r See also ~ convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the egg cine gc pp once” “oc Lest -* team, gee oe Ga.Code Ann. § 17-10-2 (1982) (Formerly Ga.Code Ann. § 27-2503). - The sentencer may pot rely on misinformation of constitu- tional magnitade such as prior uncounseled convictions that were unconstitutionally im- . Stephens, 103 S.Ct. at 2748 n. 23. Similarly; the sentencer cannot apply cu ._ Bot been “freakishly” “TN6 FEDERAL REPORTER, 24 SERIES are constitutionally impermissible Or total; irrelevant to the sentencing process, such ., for example the race, religion, or politica affiliation of the defendant” or “conduc that actually should militate in favor of , lesser penalty, such as perhaps the defend. ant’s mental illness.” “Jd. at 2747 (citations omitted).-" The sentencer also does not pos | sess diséreticn to impose the death penalty based.on nonstatutory aggravating circum. : stances which preclude the consideration of mitigating circumstanées“ © See ‘Eddings y, Oklahoma, 455 U.S. at 113-15; 102 S.Ct at 875-76" (“{jjust as the-’state may not by statute preclude the -sentencer from con- sidering any mitigating factor, neither may the sentencer refuse to ‘cOnsider, as 2 mat- ter of law, any relevant t mitigating cireum- stances”) (emphasis in original); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L_Ed.24 973 (1978). Reliance on any of these factors would invalidate the death sentence. (9). S Diseretion exists in the Georgia So- preme Court's review of.capital cases. The court exercises discretion in determining whether. the death sentence: was imposed ‘under the influence of passion, prejudice, or other arbitrary factors and in selecting the “similar cases” for its proportionality re- view. See Ga. Code Ann. § 17-10-35 (1982) (formerly Ga.Code Ann. .§ 27-2537). Such discretion is necessary if the Georgia Su- preme Court is to serve as a clearinghouse of all cases in which the death penalty has been imposed pursuant to the Georgia pro- cedure and to ensure that the sentence has See God- frey v. Georgia, 446 US. at 427, 100 S.Ct at 1764 (Stewart, J., joined by Blackmun, Pow- ell, Stevens, JJ.); Gregg v“ Georgia, 428 US. at 188-89, 96 S.Ct at 2932-33 (Stew- art, J. joined by Powell & Stevens, JJ.) - Inthe case at bar, Judge McMillan, bad the duty to examine the aggravating and mitigating circumstances..He considered both the commission of armed robbery and the ‘location of the murder—the victim's home-—in reaching his sentencing decision." "TI the Court ever does fequire mandatory punishment-—that ts when they specity Dy Al6 “4 t-” i ae | SERS MOORE #'BALKCOM 2 2°7, +. ee Cite 29 716 F.24 1511 (1983) ° r-4 i Ons might sontirei Sule tallidenhs sate . ment as both-an explanation of why he viewed armed robbery-in this case to be a~ sufficient reason to authorize and require him to impose the death penalty and a description of his thought process.in evalu- ating the statutory aggravating factors"! Close examination of. Judge McMillan’s statement reveals, however, that he estab-_ , lished. a fuirther‘and different nonstatutory aetucti taitthees ron a: mitted in thé victim's home ~ [10) “Judge MeMiilian “ rie -ience'ipon the weight ho fal this ress stance deserved. This sentence was: im- posed in 1974, when many scholars anticipa- ted that’the channeling of discretion would iead - to” “jts “elimination,” so that certzin crimes’ under ‘certain circumstances would. carry a mandatory death sentence. He pre- dicted that this crime, “: ..- when a person is’ robbed and-killed: in his own home ... would be such a crime.” Although his pre- diction at that time was consistent with that of other scholars, later cases teach us that it was faulty. Woodson v. North Caro- lina, 428 US. at 302, 96 S.Ct. at 2990 (Stew- art, J; joined by Powell and Stevens, JJ.) (mandatory statutes enacted in response to Furman have simply papered over the prob- . gs (1976) (Stewart, J.; joined by Powel ‘and Stevens, JJ.). He expressed his considera-" Gen tifa cleciatansn af Gheshitadier eite:- before him which was not prescribed in the statute.--It being clear that he did find a statutory’ aggravating circumstance, Ste- phens teaches that this additional considera-. tion, channelled to the nature of the partio- ” ular crime, was not improper. “~ Our interpretation of Judge saben ae statement as involving a nonstatutory cir- cumstance is consistent with this court's * decision in Goode v. Wainwright, 704 F.2d 593 (llth Cir.1983). In. Goode, the trial -judge, after the Florida jury had recom- . mended death, listed three aggravating cir- ‘cumstances and two mitigating circum- stances and stated that the mitigating cir- cumstances did not outweigh the aggravat- ing circumstances. Jd. at 604. He justified his sentencing of Goode to death by stating that “there are certain cases and certain times when we can no longer help, we can no longer rehabilitate, and there are certain people, and Arthur Goode is one of them, ~ that’s actions demand that society respond and all we can do is exterminate.” Id. He concluded that a. death sentence would - “guarantee society, atleast as far as it relates to this man,’... that he will never again kill, maim, torture, or harm another _ human being.” Id’ The court of appeals S.Ct. at 2983 nn. 7 and 8, 2985 n. 25. Al? - - 1524 - —" ; antunia that these statements indicated that the trial judge had improperly relied on a nonstatutory aggravating circum- © stance—impossibility of rehabilitation—and granted habeas relief. As the Court found in Goode upon examining the trial judge's "statement, we conclude that Judge McMil- - ' Jan justified his sentence, statutory eligibili- :ty.having been established, on a ponstatutc- Ke. 7 Ps he a9 safes acet os en he * "Since consideration of a nonstatutory ag-_ 586, 98 - “S.Ct 2954, 57 L.Ed.2d 973 (1978); Ford v. Strickland, 696 F.2d 804 (11th Cir-1983) (en ee This interpretation rests,-in part, on the analysis used by the Georgia Supreme Court in conducting. its mandatory propor- tionality review. . See Zant v. Stephens, 103 S.Ct at 2749-60. a a VEE PES setian cioeumstanen ta @nlete Aan’ 17-10- + 30 (1982) (formerty Ga.Code Ann: § 27-2534.- 1). See also California v. Ramos, 103 S.Ct at men a Am yuma. * e- Als '. 342s MOORE +> BALKCOM =. "1525" Cite a 716 F.24 1511 (1983) intelligent admission of guilt)” Id %e! Moore argues that he did not understand the elements of malice murder and that the record before the sentencing judge demon- strates Moore's lack of understanding. Pe- titioner’ ndtes that the’trial-judge’ never explained ‘the terms “malice aforethought,” “intention,” “provocation,”. or “abandoned and malignant heart.” Moore asserts that he did not intend to kill Mr. Stapleton and specifically denied such intent on numerous -occasions. Petitioner argues that we must determine his understanding by referring only to the record before-the sentencing judge. Petitioner admitted that be was io fact guilty of the offense charged in the indict- ment. At the entry of his guilty plea and during the sentencing proceeding, Moore acknowledged that be bad authorized his counsel, Mr. Pierce, to enter'a plea of guilty. Petitioner indicated that he under- 14. GaCode Ann. § 16-5-] (1982) (formerty Ga. Code Ann. § 26-1101) which defines the crime of malice murder provides: (a) A person commits murder when be un- lawfully and with malice aforethought, either express or implied, causes the death of an- other bumaa being stood the court’s inquiries, that he had-not entered his plea as a result of threats, coer- - cion, or promises of benefit, and that he had conferred with his attorney concerning the ~ ' charges. against him. and the questions posed -to-him by the court. The question S° before “this.pane? is -therefore whether Moore was given sufficient notice -of .the- eS ee understand the crime.” “* habeas courts found that Moore was aware ° of this right Mr. Pierce ‘specifically re- called ‘advising petitioner-of this right _ Counsel also explained that-petitioner had decided, upon his recommendation, not‘ to withdraw the plea even if 2 death sentence _. ‘were imposed. Petitioner relies solely on . his own testimony that he was unaware of - this right. We conclude that the district ‘court property relied upon the written fac- tics, particularly when consented to by the ; = +LEA2a ms (1863). ¢ fié FEDERAL REPORTER, 24 SERIES 2 ¥ titioner was provided with ie assist- ance of evened. VL. yeas of Transcript of Closing Argument " [16] Petitioner also-argues that the trial - court's failure to transcribe the closing ar- guments at his sentencing hearing prevent- ed the reviewing courts from examining the imposition of his death sentence with “full disclosure of the basis for:the death sen- tence.” -Gardner v. Florida, 430 US. 3X9, -- 861, 97 S.Ct: 1197, 1206, 51 -LEd2d 393 (1977) (Stevens, J., joined.by Stewart and Powell, JJ.). The Court in Gardner, how- ~ ever, mandated: only. that .“the record on -appeal disclose to the reviewing court the considerations which motivated the death sentence in-every case in which it is im- posed.” -Id In Gardner, ‘the trial judge based -his sentence in part on‘ information contained in a partially disclosed presen- tence investigation report:iIn:the case at © bar, the record contains the -transcript of Judge McMillan’s imposition of sentence which does not refer to any~undisclosed aspect of the proceeding on which he relied in imposing sentence. Moore has not shown. that the state of the record was inadequate to permit.the Georgis. Supreme Court to perform its required review function. See Stephens v. Zant, 631 F.2d 397, 402-04 (5th Cir.1980), modified on other grounds, 648 F.2d 446 (5th Cir.1981), rev'd on other . grounds, — US. ——, 38 BCh. 5008, vai : - vin" ‘District Court's Deaial of 3 : . Petitioner's Motion to Amend . 07) Moore . contends that: “the district court erred in refusing to allow him to amend his habeas petition. Federal Rule of Civil Procedure 1Xa) provides that a party ‘may amend his pleading after a responsive pleading has been served only by leave of court The rile also states that “leave shall be freely given when justice so requires.” Certainly in a capital case, the district court should be particularly favorably disposed toward a petitioner's motion to amend. the granting or denial of A20 ; PERM MOORE v. BALKCOM. 3% vit Chte as 716 F.2d 151) (1983) leave to amend lies within the discretion of .. the trial court and is subject to reversal only for abuse of discretion. Foman y. . Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962);..Barrett v. Independent Order of Foresters, 625 F.2d 73, 75 (Sth Cir.1980); In re Westec, 434 F.2d 195, 203— * 04 (Sth Cir.1970).- In Foman, the Supreme Court held that--the district~court . had abused its discretion when it denied leave to amend for.no apparent or declared réason “such as undue delay, bad faith or dilatory motive on-the part of the movant, repeated - failure to cure deficiencies by amendments previously- allowed, undue prejudice to the © ’ opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman, 871 US. af 182, 8 S.Ct at 230. In Barrett, the court of appeals held - that the trial judge had not abused his _@iscretion where the proposed amendment was not filed until nearly ten months after the original complaint and the appellant failed to show why the proposed additional matters could not re Barrett, 625 F.2d at 5. in eae ge [18) In the case at bar, eos dhteiah court articulated sufficient reasons within its dis- cretion justifying its decision denying leave to amend... Moore sought to assert that the ed the eighth and fourteenth amendments despite, the Supreme Coart’s prior holding that the Georgia death penalty statute is om its face constitutional.- See Gregg v. Geor- gia, 428 US. 153, 96 S.Ct. 2909, 49 LEd2d 859 (1976). The district court-therefore re- ’ fused to allow this proposed amendment on grounds of. futility..” Blake -v.’ Zant, 513 P Supp. 772, 805 (S.D.Ga.1981). Moore also claims that the district judge should have allowed him to amend his 'petition to allege that Judge McMillan unconstitutiosally used a presentence report in imposing sen- tence before the petitioner or his counsel had an opportunity to examine it " The 1S. Mr. James C. Bonner who had represented Ms. H. Diana Hicks represented Moore was represented at all times by counsel, 24527 np a a ee a been represented by counsel at all times. Counsel explicitly, referréd to this issue in the original habeas petition. filed approxi- mately two' years’ before the ~proposed _ amendment. - We cannot say that the dis- trict court abused its discretion in denying the proposed amendment in this case where counsel apparently considered and rejected the proposed arguments two years before =e the —— amendment.™ "* i ee ee Conclusion © ..0 = 5's . We GRANT the Petition for Rehearing. We affirm the district. court’s judgment that Moore's plea was voluntarily, intelli- gently, and-knowingly made, that petitioner was aware of his right to withdraw his guilty plea, aud that the absence of a tran- script of closing arguments did not prevent adequate appellate review. - We-bold that the district court acted within its discretion” © in denying Moore’s motion to amend his petition. -We reverse the district court's judgment granting relief be ment: death sentence. No member of this a nor Judge 3 in regular active service on the Court having requested that the Court be polled on rehearing en bane (Rule 35, Federal Rules . of Appellate Procedure; Eleventh Circuit Rule 26), the Suggestion for — En Banc is DENIED. ’ _ AFFIRMED in part and REVERSED in e gre ie eS 4 Spee OR ‘ MOORE v. BALKCOM Cite x5 709 F.24 1353 (1363) : a William Neal BIOORE, Respondent-Cross _- Petitioner, . v. Charles DALKCODI, Warden, Arthur K. Bolton, Attorney General, Petitioners- Cross Respondents. No. 81-7418. United States Court of Appeals, Eleventh Circuit June 23, 1983. Georgia capital penalty dcfendant sought habeas corpus The United States 1. Rude 26(F) of our Loca! Rules provides that, “A suggestion for rehearing @n Bint will also be treated as a petition for rebeuring Lelore the original panel.” 1353 District Court for the Southern District of Georgia, B. Avant Edenfie!d, J., granted, writ with regard to death sertcnce, and appeal and cross appeal were taken. The Court of Appeals, James C. Hill, Circuit Judge, held that: (1) district court erred in conducting a de novo proportionality review of death sentence; (2) Georgia tric! court committed constitutional errur in imposing death sentence on basis of nonstatutory ag- gravating circumstance, ie. that murder occurred in victim's home; and (3) relief was properly denied on clzims of denial of effective assisiznce of counsel, failure to transcribe closing argument and lack of understanding of elcinents of the offense Affirmed and remanded. Garza, Circuit Judge, sitting by desig- pation, concurred epocially with opinion 1. Criminal Law = 955(1), 957(2) Generally, po>:proceeding txstimony hy the trial judge or juror about his mental processes in recching a decision may not be used as evidence in a subsequent chelicage to the decision. 2. Habeas Corpus 90 Federal court reviewing 8 collateral at- tack on @ state prosecution must giv? great deference to the state Supreme Court's n.c*had of contuctiag its proportivaulity re- view ia a death penalty cae. 28 USCA. § 22 2 Criaains! Law &13(2) It is the decision of the slate govern- Mer. £3 a matter of stet~ statutory law, subj ict to federal comstituticnal const-aints, to dads whethor to provide a capital pun- ithrcal mechanis and to jruvide icr ap propriate pocalural saferusrds 4. Habeas Corjas @*92(1) Federal Lalwas courts must and should examine whether spplication of approved sentencing procedure: ia s particular case corset 3 sabsteatial sik that the death *emeliy baa heen inflicted ia aa arbitrary or4 capa itiwss maarcr. 709 FEDERAL REPORTER, 24 SERIES 5. Habeas Corpus 92(1) Although Court of Appeals may have reached a different conclusion regarding proportionality of charge of death penalty had it conducted # case-by-case comparison, the district court, on habezs corpus, crred in conducting its own proportionality review as it could not be said thet the Georgia Supreme Court's review or result it reached shocked the conscience and the state's pro- portionslity review provided the adcquate safeguards eguinst freakish imposition of capit.! punishncnt~ O.CG.A. § 17-10-35; U.S.C.A. Cont Amends 8, 14. 6. Habous Corpus 92(1) A {cderal habeas court should not un- dertaxc a review of a state Supreme Court's prvuportionality review in a death penalty case and, in effect, get out the record and see if the state court's fact findings, and conclusions based on review of similar cascs was supported by the “evidence” in the similar casea 7. Criminal Law @ 1203(1) It is tne state's responsibility w detcr- mins the procedure used, if any, in sentenc- img @ criminal) to death & Habeas Corpus 112 Evea if fed-ral habeas court concluded that Georgia Supreme Court's proportional- ity determination in death penalty cax shocked the conscicnet, remand for resen- tencing would be the appropriate remedy and federal court could not conduct a de nove proportionaliiy review. O.CGA § 17-10-35; US.CA. Const Amends 6, 14 9. Habeas Corpus @=92(1) Federal haSeas review in capital penal ty cares is confined to whether the state sentencitg procedure both on its face and as applied violates the Eighth and Four- tcenth Amencmenta USCA. Const. Amends 8, 14. 10. Habeas Corpus >92(1) Federal habsas review of death penaliy determinations focuscs en discre‘ion both available te and exercised by the sentencing atbority. USCA Const Amends 8, 14 - UL. Criminal Law o> 1266(1) MOORE v. BALKCOM 1355 Unbridied discretion in death penalty procedures, leading to imposition of the sen- tence in discriminatory, erbitrary, or capzi- cious manuer is unconstitutional. U.S.C.A. Const Amends. 8, 14. 12. Homicide 354 Georzia trial court’s considering both commission of armed robhery and location of murder, i.e., viclim’s home, in reaching capital pencity decision wou!d not violate the Constitution in view of requirement of individualized sentencing process if limited to an explanation as to why the court “viewed the armed robbery as authorizing the desth penalty and a3 a description of the thought process in evaluating the statu- tory aggravating factors, but it was consti- tutional error to view death penalty as mandatory because murde: ocenrred in the victim's house, thereby eliminating consid- era [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1741%3A1. Public record. Not legal advice.