Motion to Stay Mandate

    March 29, 1985 

Hon. Spencer D. Mercer, Clerk 

United States Court of Appeals 

for the Eleventh Circuit 

50 Spring Street, S5.W. 
Atlanta, Georgia 30303 

Re: Warren McCleskey v. Ralph M. Kemp 

No. 84-8176 
  

Dear Mr. Mercer: 

Enclosed for filing and disposition 

are an original and one copy of a motion to 

stay the mandate in the above-captioned case, 

together with a certificate of service. 

Thank you very much. 

Sincerely, 

A | 3 
~~ i foci A d tal A P< 

. od wr > cd Bho A j & | NT 

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x. 

“~dohn Charles Boger 

cc: Mary Beth Westmoreland, Esq. 

  

99 HUDSON STREET (212) 219-1900 NEW YORK, N.Y. 10013 

 



  

March 29, 1985 

Hon. Spencer D. Mercer, Clerk 

United States Court of Appeals 

for the Eleventh Circuit 

50 Spring Street, S.W. 

Atlanta, Georgia 30303 

Re: Warren McCleskey v. Ralph M. Kemp 

No. 84-8176 
  

Dear Mr. Mercer: 

Enclosed for filing and disposition 

are an original and one copy of a motion to 

stay the mandate in the above-captioned case, 

together with a certificate of service. 

Thank you very much. 

Sincerely, 

Pt rf {J 

# 

“~dohn Charles Boger 

cc: Mary Beth Westmoreland, Esq. 

  

99 HUDSON STREET (212) 219-1900 NEW YORK, N.Y 10013 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 84-8176 

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

Cross-Appellant, 

-VS.- 

RALPH M. KEMP, Warden, 
Georgia Diagnostic & Classification 

Center, 

Respondent-Appellant, 
Cross-Appellee. 

  

MOTION TO STAY MANDATE 
  

Petitioner-appellee and cross-appellant Warren McCleskey 

("petitioner"), by his undersigned counsel, moves this Court, pur- 

suant to Rule 41(b) of the Federal Rules of Appellate Procedure and 

Rule 27 of the Rules of this Court, for an order staying the mandate 

of the Court on this appeal, pending the timely filing and disposi- 

tion in the Supreme Court of the United States pursuant to 28 

U.S.C. §2101(c) of a petition for certiorari. The mandate would 

otherwise issue on Tuesday, April 2, 1985, following this Court's 

denial of rehearing on March 26, 1985, of his petition for rehearing 

of the Court's decision rendered January 29, 1985. In support of 

this motion, petitioner shows the following: 

 



  

Rule 27 of the Rules of this Court provides that "[a] 

motion for a stay of the issuance of a mandate . .. «7lolrdinarily 

will be denied unless it shows that it is not frivolous, not 

filed merely for delay, and shows that a substantial question is to 

be presented to the Supreme Court." Each of the Court's first two 

requirements is obviously related to the third, since a petitioner 

who presents a truly substantial federal question for review on 

certiorari is thereby proceeding nonfrivolously and with the inten- 

tion of securing eventual relief on the merits. 

In assessing whether an applicant's questions are sufficiently 

"substantial" to warrant a stay of the mandate under Rule Ll, this Court 

may properly seek guidance from the standards the Supreme Court itself 

has promulgated in Rule 17 of the Rules of the Supreme Court to govern 

its htt exercise of its certiorari jurisdiction. Under Rule 17, 

the Supreme Court has indicated that certiorari may be warranted to 

review (i) "an important question of federal law which has not been, 

but should be, settled by this Court;" (ii) "a decision inconflict 

with the decision of another federal court of appeals on the same 

matter:" or (iii) "a federal question [decided] in a way in conflict 

with applicable decisions of [the Supreme] .... . Court.” 

Petitioner should receive a stay of the mandate pending 

review on certiorari under each of these three provisions. His 

challenge to Georgia's application of its capital statutes has 

raised a host of difficult and unprecedented .constitutional questions 

 



  

that have appropriately engaged the careful attention of the full 

Court as "important question(s] of federal law." Petitioner's 

challenge to the death-qualification of his capital jury, which 

this Court has rejected in conformity with its previous holdings, 

has recently been accepted by another circuit, the United States 

Court of Appeals for the Eighth Circuit, in Grigsby v. Mabry, 
  

No. 83 -2113 (8th Cir., Jan. 30, 1985)(en banc), and at least 

two Justices have since noted that "[t]his Court is certain to 

grant certiorari in the immediate future to resolve this issue." 

Witt v. Wainwright, _ U.S. _, 53 U.S.L.W. 3647 (U.S., March 121985) 
  

(No. 84-6325) (Marshall & Brennan, JJ., dissenting from denial of 

certiorari). Petitioner's challenge under Giglio v. United States, 
  

405 U.S. 150 (1972) to the State's nondisclosure of a pretrial 

understanding with a key witness was resolved by this Court, we 

respectfully submit, "in a way in conflict with applicable decisions" 

of the Supreme Court and other lower federal courts. 

(i) Petitioner's Challenge to the Application of Georgia's 

Capital Statules 
  

The principal claim prompting this Court to grant initial 

hearing of petitioner's appeal en banc seems clearly to have been 

his statistical challenge to the application of Georgia's post- 

  

Furman capital statutes. The majority noted that this Claim is one 

"arising in numerous capital cases," McCleskey v. Kemp, 753 F.24 

877, 881 (llth Cir. 1985)(en banc). It poses a host of important 

constitutional and statutory questions on which "[t]here are no 

 



  

guidelines in decided cases," id. at 923 (Clark, J. dissenting in 

part & concurring in part), including: 

"First . . . the [nature of] the statistical 

Baldus study that was done in this case. Second 

. the evidentiary value such studies have in 

establishing the ultimate facts that control a 

constitutional decision. Third . . . the consti- 

tutional law in terms of what must be proved in 

order for petitioner to prevail on an argument 

that a state capital punishment law is unconsti- 

tutionally applied because of race discrimination. 

Fourth . . . whether a generalized statistical 

study such as this could ever be sufficient to 

prove the allegations of ultimate fact necessary 

to sustain a successful constitutional attack on 

a defendant's sentence. Fifth . . . whether this 

"study is valid to prove what it purports to prove. 

Sixth . . . [whether] this particular study, 

assuming its validity and that it proves what it 

claims to prove, is [s]ufficient to either require 

or support a decision for petitioner. 

  

753 F.23 at 886. 

Although a majority of the Court resolved the ultimate 

issue against petitioner by a divided nine-to-three vote, members 

split more widely on many important sub-questions, including whether 

a capital inmate must make a showing of intent in order to prevail 

on an Eighth Amendment claim, compare McCleskey v. Kemp, supra, 753 
  

F.2d at 891-92 (Roney, J., for the Court) (proof of intentional discrim- 

ination is required) with 753 F.2d at 905-06 (Vance, J., concurring) 

and id. 909-11 (Johnson, J., dissenting in part & concurring in 

part) {proof of intent is not required), or whether a 20 point racial 

disparity among the mid-range of Georgia capital cases warrants a 

finding of systemwide failure, compare 753 F.2d at 898 {Roney, Jy 

for the Court)("the 20% disparity . . . cannot provide the basis 

for a systemwide challenge"), with id., 9218-19 (Hatchettt, J .. 9 

 



  

dissenting in part & concurring in part) (20 point disparity "is 

intolerable"). Several members of the Court also indicated that the 

standard for assessing the "proof of racial motivation required in a 

death case . . . would be less strict than that required in civil 

cases or in the criminal justice system generally," id., at 906 

(Anderson, J., concurring). 

Since it "assum[ed] the validity of the research," 753 

F.2d at 886; id., 894-95, for purposes of its resolution of peti- 

tioner's constitutional questions, the majority's opinion will 

present the Supreme Court with straightforward issues of law to be 

resolved free from the numerous collateral factual issues that 

might otherwise make certiorari less likely. Moreover, since the 

Court spoke broadly on the right of subsequent habeas petitioners 

to a hearing on such claims, 753 F.2d at 893-94, its impact will be 

all the more significant on future litigation in this significant 

area of the law. 

It ig in light of the reasons above, and because "[c]laims 

such as that of petitioner are now presented with +. . regularity,” 

75% F.2d at 906, that at least one member of the Court expressed the 

"reasonabl[e] hope for guidance from the Supreme Court," id. (Vance, 

J., concurring), on these matters. For this Court to grant a stay 

of the mandate while petitioner seeks such guidance from the Supreme 

Court seems clearly appropriate. Moreover, as this Court is aware, 

the Supreme Court itself has previously provided some indication of 

its view of the importance of the questions addressed here. In 

December of 1983, five members of the Court granted a stay of execu- 

tion to another Georgia capital inmate, Alpha Stephens, pending 

-5 

 



  

resolution of these issues in this Court. Stephens v. Kemp, 
  

U.S. , 78 L.Ed.2d 370 (1984). Although the Court subsequently 

vacated that stay (apparently on abuse-of-the-writ grounds unrelated 

to the merits of the claim, see Stephens Vv. Kemp, U.S. , 83 L.Ed. 
  

2d 417, 418 (1984) (Brennan & Marshall, JJ., dissenting)), at least 

four Justices -- the number necessary under the Court's 

rules to grant certiorari to review a constitutional issue -- eventually 

indicated that, even in Stephens' case, they would have granted a 

stay of execution "pending the ultimate resolution of .. ..:v:McCleskey 
  

v. Zant, 580 F. Supp. 338 (N.D. Ga.), hearing en banc granted, 

726 F.24 1293 (C.A. 511 1984)." Stephens v. Kemp, _ U.S. , 8% L.Ed. 
  

2d 717, 718 (1985) (Brennan, Marshall, Blackmun & Stevens, dissenting). 

In view of these indications from the Court, it is far 

from an "'[un]reasonable probability that four members of the Court 

would consider the underlying issue sufficiently meritorious for 

the grant of certiorari,’" Barefoot v. Estelle, U.S. , 77 L.EQ.2¢8 
  

1090, 1105 (1983) (outlining standard for a stay of execution pending 

certiorari). Under these circumstances, a stay of the mandate 

is surely appropriate. 

(ii) Petitioner's Challenge to the Death-Qualification 

of His Capital Jury 
  

This Court summarily rejected petitioner's properly 

preserved claim that the State's death-qualification of his capital 

jury deprived him of a jury that was impartial on the question 

of guilt or innocence and was chosen from a panel representative 

of a cross-section of the community. McCleskey v. Kemp, Supra, 
  

753 F.2d at ‘901; ‘see also 1d., 881 ("all of the Judges of the 
  

 



  

Court concur in the judgment as to the death-oriented jury claim.") 

In so doing, the Court followed its own well-established precedents, 

see Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 1981); 
  

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) and declined 
  

to reconsider them in light of "the district court opinions from 

outside circuits" which, it noted, "are not controlling authority 

for. this Court.” 753 F.2d at 901. 

One day after this Court ruled, however, the United 

States Court of Appeals for the Eighth Circuit, sitting en banc, 

affirmed one of the two district court opinions cited to this Court, 

declaring that the Sixth and Fourteenth Amendments prohibit the practice 

of death-qualification. Grigsby v. Mabry, No. 83-2113 {8th Cir. 
  

Jan. 30, 1985)(en banc). In its opinion, that Court expressly 

observed "that our affirmance of the district court here creates 

a conflict among circuits,” id., slip op. at 24, and stated that. it 

was "hopeful the Supreme Court will grant a writ of certiorari and 

resolve the issue." Id. 

The Attorney General of Arkansas has indicated to the 

Supreme Court that he will seek review of the Eighth Circuit's 

decision, and Justice Marshall, in an unusually strongly worded 

opinion in another context, has indicated that certiorari will 

soon be granted on this claim: 

"I would stay this execution because Witt's 

petition raises an issue -- crucial to the 

administration of capital punishment in this 

country -- on which there exists a split of 

authority among the courts of appeals. This 

Court is certain to grant certiorari in the 

immediate future to resolve this issue 

 



  

Every Member of this Court knows that certiorari 

must be granted in the immediate future to resolve 

[this] issue.” 

Witt v. Wainwright, U.S. j#53 J... L.W. 3647 (U.S., March 12, 1985) 
  

(No. 84-6325). 

The likelihood of certiorari on this second issue presents 

a second strong ground for a stay of the mandate. 

(iii) Petitioner's Giglio Claim 
  

As he has explained at greater length in his petition 

for rehearing to this Court, petitioner believes that the Court's 

decision on his Giglio v. United States claim directly conflicts 
  

on several points with the holding of the Supreme Court in both 

Giglio and Napue v. Illinois, 360 U.S. 264 {1859), and with 
  

numerous decisions of the lower federal courts. This claim is 

sufficiently substantial in its own right to warrant a stay of 

the mandate in this case. 

CONCLUSION 
  

Petitioner has set forth three substantial federal 

constitutional claims that warrant Supreme Court review. In light 

of the complexity of the issues presented and the importance of 

their resolution to capital inmates in this and other circuits, 

he seeks the full 90 days permitted under 28 U.S.C. §2101(c) 

for the preparation and filing of his petition for certiorari. 

Under the circumstances, with a grant of certiorari especially 

likely in the near future on the death-qualification issue, 

respondent can suffer no significant disadvantage from this schedule, 

 



  

which would permit petitioner the full opportunity allowed by 

federal statute to frame these important questions for Supreme 

Court consideration. 

WHEREFORE, petitioner respectfully urges the Court 

to grant his motion and stay issuance of its mandate in this 

case pending the timely filing and disposition of his petition 

for certiorari under 28 U.S.C. §2101(c). 

Dated: March 29, 1985 

Respectfully submitted, 

ROBERT H. STROUP 

1515 Healey Building 
Atlanta, Georgia 30303 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, III 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 

TIMOTHY K. FORD 
600 Pioneer Square 
Seattle, Washington 98104 

ANTHONY G. AMSTERDAM 
New York University Law School 
40 Washington Square South 
New York, New York 10012 

ATTORNEYS FOR PETITIONER-APPELLEE 

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BY wy IE A ; ; TAUA ho v Ai - 2 ; a F age VSG 

  JOHN CHARLES BOGER 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I am one of the attorneys for 

Warren McCleskey, petitioner-appellee and cross-appellant in 

this action, and that I served the annexed motion to stay the 

mandate on respondent-appellant and cross-appellee by placing 

a copy in the United States mail, first class mail, postage 

prepaid, addressed as follows: 

Mary Beth Westmoreland, Esq. 

Assistant Attorney General 

132 State Judicial Building 

40 Capitol Square S.W. 

Atlanta, Georgia 30334 

All parties required to be served have been served. 

Done this 29th day of March, 1985. 

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  =_JOHN CHARLES BOGER ’ 

 



  

Anited States Court of Appeals 
ELEVENTH CIRCUIT 

SFENCER D. MERCER OFFICE OF THE CLERK IN REPLYING, GIVE NUMBER 

CLERK 56 FORSYTH STREET, N.W. OF CASE AND NAMES OF PARTIES 

ATLANTA, GEORGIA 30303 

April 2, 1985 

J vr. John Charles Boger 
Attorney at Law 
10 Columbus Circle 
Suite 2030 
New York, NY 10019 

No. 84-8176 - WARREN MCCLESKEY v. RALPH KEMP 
(DC No. 81-2434-A) 

  

MANDATE STAYED TO AND INCLUDING MAY 26 1985 (as TO MCCLESKEY) 
  

This Court has this day granted a stay of the issuance of the 
mandate to the date as shown above. If during the period of the 
stay there is filed with this office a notice from the Clerk of 
the Supreme Court that the party who has obtained the stay has 
filed a petition for the writ in that Court, the stay shall con- 
tinue until final disposition by the Supreme Court. Upon the filing 
of a copy of an order of the Supreme Court denying the petition for 
writ of certiorari, the mandate shall issue immediately under Rule 41, 
FRAP. 

Rule 19.1 of the Supreme Court, effective June 30, 1980, states that 
a request to certify the record prior to action by the Supreme Court 
on the petition for certiorari should not be made as a matter of 
course but only when the record is deemed essential to a proper under- 
standing of the case by that Court. However, this Court will not 

transmit the record to the Supreme Court until that court requests 
to review it. 

A copy of the opinion, judgment, or Rule 25 Decision, and denial of 

rehearing are still required Dy the Supreme Court to be incorporated 
as an appendix to your petition. 

Very truly yours, 

SPENCER D. MERCER, CLERK 

sy. (Ingela o£. Busore 
Depgfy Clerk 
  

ccd Ms. Mary Beth Westmoreland 
Mr. Robert H. Stroup 

MDT-2 

(Rev. 10/84)