Charlie Benson Bowen, Petitioner-appellee, v. Ralph Kemp, Warden, Georgia Diagnostic and Classificationcenter, Respondent-appellant, 778 F.2d 623 (11th Cir. 1985)

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.

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.