776 F2d 1486 Bowen v. Kemp

776 F.2d 1486

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

No. 84-8327.

United States Court of Appeals,
Eleventh Circuit.

Nov. 5, 1985.

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

Paul H. Kehir, Snellville, Ga. (Court-appointed), for petitioner-appellee.

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

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Rehearing En Banc Denied, 11th Cir., 778 F.2d 623.


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



A suggestion for rehearing en banc is treated as both a request for en banc consideration and as a petition for rehearing addressed to the original panel. 769 F.2d 672 (11th Cir.1985). Local Rule 26(f). One of the major thrusts of the suggestion filed in this matter is that the majority erroneously applied the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc ), in resolving the issue of prosecutorial argument. The contention is that the Supreme Court has enunciated a new standard in Caldwell v. Mississippi, --- U.S. ----, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which is incompatible with or different from that established in Strickland. It is the majority's conclusion that this precise issue was presented to and rejected by the en banc court in the petition for rehearing in Brooks, 762 F.2d at 1448 (Judges Kravitch, Johnson and Clark dissenting). The petition for rehearing, insofar as it is addressed to the original panel, is DENIED.


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