Moore ruled that executing an innocent person would violate the Eighth Amendment. "However, Mr. Davis is not innocent." In his decision, Moore wrote: "while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors." Moore gave Benjamin Gordon's testimony no credit because the testimony came late and the judge believed Gordon would say anything to help Mr. Davis, despite no evidence that Mr. Gordon knew Mr. Davis. Of the seven papers described as recantations by the defense, Moore found that only one was wholly credible and two were partly credible. He did not consider Coles' alleged confessions because of the failure of Davis's lawyers to subpoena Coles, and suggested that Davis should appeal directly to the Supreme Court. In November 2010, the federal appeals panel dismissed an appeal on the case, without ruling on its merits. They stated that Davis should appeal the case directly to the U.S. Supreme Court "because he had exhausted his other avenues of relief." Rosemary Barkett, one of the panel judges, later released a statement saying that although she agreed with the decision, she still believed that Davis should be given a new trial.