Alvin R. Moore, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary, Angola, Louisiana, 774 F.2d 97 (5th Cir. 1985). · Go Syfert
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Alvin R. Moore, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary, Angola, Louisiana, 774 F.2d 97 (5th Cir. 1985). Cases Citing This Book View Copy Cite
36 citation events across 6 distinct courts.
Strongest positive: Mark A. Hopkinson v. Duane Shillinger, and the Attorney General of the State of Wyoming (ca10, 1989-12-01)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Mark A. Hopkinson v. Duane Shillinger, and the Attorney General of the State of Wyoming (2×)
10th Cir. · 1989 · confidence medium
The Fifth Circuit in Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985) (alternative holding), cert. denied, 476 U.S. 1176 , 106 S.Ct. 2904 , 90 L.Ed.2d 990 (1986), concluded that "a competent attorney should have been aware of" this type of claim prior to Caldwell .
discussed Cited as authority (rule) Robert Sawyer v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary (2×)
5th Cir. · 1989 · confidence medium
We therefore need not decide whether, if a rule is "new" as a matter of constitutional interpretation but not "new" in state interpretations of the federal Constitution, it is nonetheless "new" for purposes of the Teague bar upon collateral federal challenges to state convictions. 81 Sawyer next contends that this Circuit in Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985), cert. denied, 476 U.S. 1176 , 106 S.Ct. 2904 , 90 L.Ed.2d 990 (1986), has already decided that Caldwell is not a new rule.
discussed Cited as authority (rule) Coleman v. Saffle
10th Cir. · 1989 · confidence medium
Bowden v. Kemp, 793 F.2d 273 , 275 & n. 4 (11th Cir.), cert. denied, 477 U.S. 910, 106 S.Ct. 3289 , 91 L.Ed.2d 576 (1986); Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985), cert. denied, 476 U.S. 1176 , 106 S.Ct. 2904 , 90 L.Ed.2d 990 (1986).
discussed Cited as authority (rule) Coleman v. Saffle
10th Cir. · 1989 · confidence medium
Bowden v. Kemp, 793 F.2d 273 , 275 & n. 4 (11th Cir.), cert. denied, 477 U.S. 910 , 106 S.Ct. 3289 , 91 L.Ed.2d 576 (1986); Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985), cert. denied, 476 U.S. 1176 , 106 S.Ct. 2904 , 90 L.Ed.2d 990 (1986). 13 Once the state adequately raises the abuse of the writ issue with clarity and particularity, as the state did in this case, the burden shifts to the petitioner to show, by a preponderance of the evidence, that he has not abused the writ procedure.
discussed Cited as authority (rule) In Re the Personal Restraint of Jeffries
Wash. · 1988 · confidence medium
Miss. 1987) (jurors told that their word was "not the last word"); State v. Clark, 492 So.2d 862, 870-71 (La. 1986) (not only was there a detailed outlining of the state appellate review process, but the prosecutor also informed jurors that the death sentence would not stand unless a majority of the state supreme court justices affirmed the sentence handed down by the jury); Commonwealth v. Baker, 511 Pa. 1, 21 , 511 A.2d 777 (1986) (jurors told, "no matter what your decision is, ... there will be considerable time and considerable appeals to be before any kind of finality occurs in this parti…
discussed Cited as authority (rule) Neuschafer v. Whitley
D. Nev. · 1987 · confidence medium
See Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984) (sole fact that petitioner’s claim for relief was not exhausted at time *1424 of prior federal writ would not excuse failure to include that claim in the prior petition); Jones v. Estelle, 722 F.2d 159, 169 (5th Cir.1983) (petitioner who persists in the prosecution of federal writ while aware of additional but unexhausted claims faces the burden of disproving abuse of the writ; that the omitted claim was not exhausted at the time of the first petition is not sufficient to avoid the abuse doctrine); Jones v. Hess, 681 F.2d 688, 695 (1…
discussed Cited as authority (rule) Stephen Todd Booker v. Richard L. Dugger
11th Cir. · 1987 · confidence medium
With respect to a habeas petition, the Fifth Circuit has adopted a rule that ”[c]laims must be included in the prior petition if a competent attorney should have been aware of the claims at the time of the prior petition.” Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2904 , 90 L.Ed.2d 990 (1986). 10 .
discussed Cited "see" Thomas v. Wainwright
11th Cir. · 1986 · signal: see · confidence high
See Moore v. Blackburn, 774 F.2d 97 (5th Cir.1985), stay granted, No. 85-5555 (October 4, 1985); Celestine v. Blackburn, 750 F.2d 353 (5th Cir.1984), stay granted, — U.S. -, 106 S.Ct. 31 , 87 L.Ed.2d 707 (1985); Bowden v. Kemp, 774 F.2d 1494 (11th Cir. 1985), stay granted, — U.S. -, 106 S.Ct. 213 , 88 L.Ed.2d 182 (1985).
Retrieving the full opinion text from the archive…
Alvin R. MOORE, Jr., Petitioner-Appellant,
v.
Frank BLACKBURN, Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent-Appellee
85-4706.
Court of Appeals for the Fifth Circuit.
Oct 3, 1985.
774 F.2d 97
Jack & Hudsmith, Rebecca L. Hudsmith, Shreveport, La., for petitioner-appellant., Henry N. Brown, Jr., Dist. Atty., Benton, La., for respondent-appellee.
Gee, Per Curiam, Politz, Randall.
Cited by 25 opinions  |  Published
PER CURIAM:

It is ORDERED that petitioner’s application for a certificate of probable cause and his motion for a stay of execution are denied.

The first issue raised in the petition concerns the exclusion from the jury of persons with scruples against the death penalty, resulting in a “death qualified jury.” See Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985) (en banc), petition for cert. filed sub nom., Lockhart v. McCree, cert. granted, — U.S. —, 106 S.Ct. 59 (1985). This issue was squarely raised in petitioner’s previous petition, and thus is a successive writ, disallowed under Rule 9(b), Rules Governing Section 2254 Cases. The issue was determined adversely to petitioner in the prior petition, the prior determination was on the merits, Moore v. Maggio, 740 F.2d 308 (5th Cir.1984), and the ends of justice would not be served by reaching the merits of this application. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963); 28 U.S.C. § 2244. The second issue raised in the petition is the asserted prejudicial effect of the prosecutor’s statements concerning appellate review in the prosecutor’s closing argument, in light of the Supreme Court’s recent decision in Caldwell v. Mississippi, — U.S. —, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The Court in Caldwell held that it is constitutionally impermissible to rest the death penalty on the determination of a sentencer who has been led to believe that responsibility rests elsewhere. We conclude that this issue also was raised in the previous petition, in which petitioner alleged that the Louisiana Supreme Court failed to consider adequately that the death penalty was imposed as a result of “passion, prejudice, and other arbitrary factors, including ... the injection of appellate review.” 740 F.2d at 319 n. 10. Raised here for the second time, the issue is barred by Rule 9(b) and the principles enunciated in Sanders. We ruled in the previous petition that “the prosecutor’s brief reference to appellate review [did not] diminish[] the jury’s sense of responsibility for its sentence.” 740 F.2d at 320. This pronouncement is consistent with the rule set forth in Caldwell. Alternatively, even if we were to conclude that this issue is being raised in this petition for the first time, we must deny it as an abuse of the writ, Rule 9(b). In Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc), we ruled that new claims in a successive petition must be dismissed if the failure to include them in a prior petition is an abuse of the writ. Claims must be included in the prior petition if a competent attorney should have been aware of the claims at the time of the prior petition. Id. at 169. That a competent attorney should have been aware of this claim is apparent from the Supreme Court’s Caldwell opinion. See 105 S.Ct. at 2642.

SO ORDERED.