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796 F2d 1313 Burger v. Kemp

796 F.2d 1313

Christopher A. BURGER, Petitioner-Appellee, Cross-Appellant,
v.
Ralph KEMP, Warden, Georgia Diagnostic and Classification
Center, Respondent-Appellant, Cross-Appellee.

No. 81-7419.

United States Court of Appeals,
Eleventh Circuit.

July 23, 1986.

William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Joe Nursey, Andrea I. Young, Millard Farmer, Pamela L.J. Arangno, Atlanta, Ga., for petitioner-appellee, cross-appellant.

Appeal from the United States District Court for the Southern District of Georgia.

Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD*, Senior District Judge.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion March 13, 1986, 11 Cir., 785 F.2d 890).

PER CURIAM:

1

The panel opinion of March 13, 1986 should not be interpreted as requiring a defendant to place intent explicitly in issue before he can prevail on a challenge to burden shifting instructions on criminal intent. The panel majority simply noted that evidence of intent is more likely to be overwhelming where the defendant has not attempted to counter the state's evidence on criminal intent.

2

With the foregoing clarification of the panel opinion the petition for panel rehearing is DENIED and no member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing en banc, Fed.R.App.P. 35, 11th Cir. Rule 26, the suggestion for rehearing en banc is DENIED.

3

Judge JOHNSON adheres to the views previously expressed in his dissent from the panel opinion.

*

Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation