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Charlie Benson Bowen v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center

Charlie Benson BOWEN, Petitioner-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant

Bowen v. Ralph Kemp,, Ga. Diagnostic & Classification Ctr., 778 F.2d 623 (11th Cir. 1985)
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Court
Court of Appeals for the Eleventh Circuit · U.S. Courts of Appeals
Decided
December 2, 1985
Docket
No. 84-8327
Judges
Kravitch, Fay, Johnson, Young, Clark
Citations
778 F.2d 6231985 U.S. App. LEXIS 31498
Disposition
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Opinion of the Court — Per Curiam

PER CURIAM:

The court having been polled at the request of one of the members of the court, and a majority of the circuit judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 26), the suggestion for rehearing en banc is DENIED.

Dissent — Kravitch

KRAVITCH, Circuit Judge,

dissenting, with whom JOHNSON and CLARK, Circuit Judges, join:

As Judge Johnson points out in his dissent, the standard for evaluating claims of prosecutorial misconduct which this court adopted in Brooks v. Kemp, 762 F.2d 1383, 1413 (11th Cir.1985) (en banc), and which the majority applied in the instant case, is incompatible with the standard enunciated by the Supreme Court in Caldwell v. Mississippi, — U.S.-, 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985). To date, this court has not resolved this potential conflict. Although the majority of the Bowen panel, in its denial of panel rehearing, makes the cursory assertion that there is no conflict between the two standards, it furnishes no analytical basis for such a conclusion. The court has not yet squarely addressed the issue and reconciled the language of Brooks and Caldwell . I therefore dissent from the denial of Bowen’s petition for rehearing en banc.

Combined text as published — syllabus, headnotes and all opinions in one document

778 F.2d 623

Charlie Benson BOWEN, Petitioner-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant.

No. 84-8327.

United States Court of Appeals, Eleventh Circuit.

Dec. 2, 1985.

Susan V. Boleyn, Asst. Atty. Gen., William B. Hill, Jr., Atlanta, Ga., for respondent-appellant.

Paul H. Kehir, court appointed, Snellville, Ga., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Georgia; Harold L. Murphy, District Judge.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion August 6, 1985, 11 Cir., 1985, 769 F.2d 672 ,

rehearing denied, 776 F.2d 1486 .)

Before FAY and JOHNSON, Circuit Judges, and YOUNG * , District Judge.

PER CURIAM:

1

The court having been polled at the request of one of the members of the court, and a majority of the circuit judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 26), the suggestion for rehearing en banc is DENIED.

2

KRAVITCH, Circuit Judge, dissenting, with whom JOHNSON and CLARK, Circuit Judges, join:

3

As Judge Johnson points out in his dissent, the standard for evaluating claims of prosecutorial misconduct which this court adopted in Brooks v. Kemp, 762 F.2d 1383, 1413 (11th Cir.1985) (en banc ), and which the majority applied in the instant case, is incompatible with the standard enunciated by the Supreme Court in Caldwell v. Mississippi, --- U.S. ----, 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985). To date, this court has not resolved this potential conflict. Although the majority of the Bowen panel, in its denial of panel rehearing, makes the cursory assertion that there is no conflict between the two standards, it furnishes no analytical basis for such a conclusion. The court has not yet squarely addressed the issue and reconciled the language of Brooks and Caldwell. I therefore dissent from the denial of Bowen's petition for rehearing en banc.

* Honorable George C. Young, U.S. District Judge for the Middle District of Florida, sitting by designation

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1986: 21989: 119862026peak 1986 · 2

Relies on it most ⓘ

  1. Thomas Knight v. Richard L. Dugger and Tom Barton863 F.2d 705 (11th Cir. 1989)
  2. Isaacs v. Kemp782 F.2d 896 (11th Cir. 1986)
  3. Carl J. Isaacs and George Elder Dungee v. Ralph Kemp, Warden, Georgia State Prison, Carl J782 F.2d 896 (11th Cir. 1986)

Most recent

  1. Thomas Knight v. Richard L. Dugger and Tom Barton863 F.2d 705 (11th Cir. 1989)
  2. Carl J. Isaacs and George Elder Dungee v. Ralph Kemp, Warden, Georgia State Prison, Carl J782 F.2d 896 (11th Cir. 1986)
  3. Isaacs v. Kemp782 F.2d 896 (11th Cir. 1986)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Caldwell v. Mississippi, 472 U.S. 320 (1985) 2,075
Brooks v. Ralph Kemp,, Ga. Diagnostic & Classification Ctr., 762 F.2d 1383 (11th Cir. 1985) 204
Bowen v. Ralph Kemp,, Ga. Diagnostic & Classification Ctr., 769 F.2d 672 (11th Cir. 1985) 27
Bowen v. Ralph Kemp,, Ga. Diagnostic & Classification Ctr., 776 F.2d 1486 (11th Cir. 1985) 2

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