Brief in Opposition for Respondent

    NO. 89-7024 

  

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1989 

WARREN MCCLESKEY, 

Petitioner, 
Yo. 

WALTER D. ZANT, WARDEN, 

* 
XX
 

X%
 

XX
 

XX
 

Xx
 

Respondent. 

  

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

ELEVENTH CIRCUIT 

  

BRIEF IN OPPOSITION 
FOR THE RESPONDENT 

  

MARY BETH WESTMORELAND 
Senior Assistant 
Attorney General 

Counsel of Record for 
Respondent 

MICHAEL J. BOWERS 

Attorney General 

WILLIAM B. HILL, JR. 
Deputy 

Attorney General 

SUSAN V. BOLEYN 

Please serve: Senior Assistant 

Attorney General 
MARY BETH WESTMORELAND 

132 State Judicial Bldg. 
40 Capitol Square, S.W. 

Atlanta, Georgia 30334 
(404) 656-3349 

 



  

QUESTIONS PRESENTED 
  

Did the Eleventh Circuit Court of Appeals properly find 

that Petitioner had abused the writ by deliberately abandoning 

a claim raised in his first state habeas corpus proceeding, 

particularly when the district court's opinion in this case 

which found a constitutional violation has been reversed? 

Is the harmless error analysis conducted by the Eleventh 

Circuit necessary for a resolution of the abuse of the writ 

issue? 

Did the Eleventh Circuit Court of Appeals properly conduct 

its harmless error analysis as a mixed question of fact and law 

and give appropriate deference to any factual findings made by 

he district court and thus appropriately find that any alleged 

constitutional violation was harmless beyond a reasonable doubt? 

 



  

QUESTIONS PRESENTED... 

STATEMENT OF THE CASE. 

TABLE OF CONTENTS   

® © @ 0 9 0 0° @ 0° °° 0 0° 0° O° 0 O° 0° O° O° 0 0 0 O° 0 0° 0° 0 0 0 0 0 

I. THE ELEVENTH CIRCUIT COURT OF APPEALS 

PROPERLY FOUND THAT PETITIONER HAD ABUSED 

THE WRIT BY DELIBERATELY ABANDONING THE 

CLAIM OF A MASSIAH VIOLATION PRIOR TO FILING 

HIS FIRST FEDERAL HABEAS CORPUS PETITION AND 

PROPERLY FOUND THAT THE DISTRICT COURT 

ABUSED ITS DISCRETION IN NOT MAKING THIS 

FINDING. vv ® © 9 © 0 0° oo 0 ° 0 O° 0° °° 9 OO 0° PG 0 0° 0 0 0° 0° Ge 0 0 0 0 0 0 

II. THE HARMLESS ERROR ANALYSIS CONDUCTED BY THE 
ELEVENTH CIRCUIT COURT OF APPEALS IS NOT 
ESSENTIAL TO A RESOLUTION OF THE ABUSE OF 
THE WRIT QUESTION AND, FURTHERMORE, THE 
CONCLUSION BY THAT COURT THAT ANY ALLEGED 
ERROR. WAS HARMLESS IS CORRECT. ., ves vn siois snie as 

CONCLUSION. "u,v. uo vi is ® © © 0 © © © 0 ° 0° Oo O° O° © 0° 6 © © O° 0° O° & 0 0° 0 0 © 0 0 0° 0 oo 

© © © ° © © © 0 ° 0 0° © 0° 0 © 0° O° O° O° 0 O° °° 0° °° 6 0 6 0 0 0 

PAGE(S) 

12 

12 

36 

44 

45 

 



  

TABLE OF AUTHORITIES   

  

  

  

  

  

  

  

  

  

CASES CITED PAGE(S) 

Amadeo v. Zant, U.8. :  ,-108 S.Ct. 1771 (1988) ..... 38 

Antone v, bugger, 465 U.S. 200, 206 (1984Y¥.... iu cise 33 

Chapman Vv. California, 386 U.S. 18 (1967)... ..cvunvinvien 39 

Giglio v. United States, 405 U.B8. 150 (1972) ec ivvin dus Passim 

Kuhlmann ve. Wilson, 477 U.S. 436 (1986) se svssrnsrsnsoenn 36 

Massiahh v., United States, 377 U.S. 201 (1964). ...0 5444 Passim 

McCleskey 'v, Georgia, 449 U.S. 891 (1980)... uviees enna 2 

MeCleskev.w, Kemp, 481 U.S... , 107 S.Ct. 1756, 
reh, den., 107 S.CF, 3199 (1987). vetoes toens ssn sens 5   

McCleskey v, Remp, 753 F.24.877 (11th Cir. 1985) 

CCI DD ATIC Hy vit» a Tieieis avis vimae ont via er als vn ns sles eins a ane 4 
  

McCleskey v, State, 245 Ga. 108, 263 S.E.24   

  

  

  

  

  

146. GAOBIOY: - sienna eFticinis s nivhs o acilinse sinsisvin nin sina neiviasinmmen 2, 20 

McCleskey v. Zant, 580 F. Supp. 338 (M.D.Ga. 1984)..... 3 

McCleskevy v. Zant, 890 F.2d 342 (llth Cir, 1989)Y....... 7.29, 

Sanders v, United States, 373 U.8. X (1983). cv visions 33 

Satterwhite v. Texas, 486 U.S. 249 (1988), uve vvsnsnins 39, 42, 

United States v,. Bagley, 473 U.S. 667, (1985)... .c¢ vis 5 

United States v. Morrison, 449 U.S. 36) (1981)......... 39   

Woodard v. Hutching, 464 U8. 377 (1984). vuivuivns vein 33   

 



  

TATUTES CITED   

0.C.C.A 8U17=10-30(DY(2) an (DBYLBY «omits itis snivnse 2 

 



  

  

NO. 89-7024 

  

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1989 

WARREN MCCLEKSEY, 

Petitioner, 
V. 

WALTER D. ZANT, WARDEN, 

* 
X%
X 

% 
X%
 

% 
% 

Respondent. 

  

ON PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE 

ELEVENTH CIRCUIT 

  

BRIEF IN OPPOSITION 
FOR THE RESPONDENT 

  

PART ONE 
  

STATEMENT OF THE CASE 
  

on June. 13, 1978, the grand jury of Fulton County, Georgia, 

returned a three count indictment against the Petitioner, 

Warren McCleskey, and his three co-indictees, David Burney, 

Bernard Depree and Ben Wright, Jr., charging said individuals 

with the offense of murder and with two counts of armed 

robbery. The Petitioner was tried separately beginning on 

October 9, 1978, and was found guilty on all three counts. The 

 



  

jury imposed the death penalty after a separate sentencing 

proceeding on the murder charge, finding that: (1) the offense 

of murder was committed while the Petitioner was engaged in the 

commission of another capital felony and (2) the offense of 

murder was committed against a peace officer, corrections 

employee or fireman while engaged in the performance of his 

official duties. See 0.C.G.A § 17-10-30(b)(2) and (b)(8). 

Consecutive life sentences were imposed on the two counts of 

armed robbery. 

The Petitioner then appealed his convictions and sentences 

to the Supreme Court of Georgia. The Supreme Court of Georgia 

affirmed the convictions and sentences. McCleskey v. State, 
  

245 Ga. 108, 263 S.E.28 146 (1980). The Petitioner 

subsequently filed a petition for a writ of certiorari to the 

Supreme Court of the United States asserting that the trial 

court improperly admitted evidence of other crimes, that the 

jury's discretion was not properly channelled and that there 

was a deliberate withholding of the confession to Offie Evans. 

Certiorari was denied by the Court. McCleskey v. Georgia, 449 
  

U.S. 891 (1980). 

On January 5, 1981, the Petitioner filed a petition for 

habeas corpus relief in the Superior Court of Butts County, 

Georgia, as Case No. 4909. In the original petition the 

Petitioner raised numerous allegations including the alleged 

failure to disclose an "arrangement" with a police agent or 

 



  

informer (Offie Evans) and the alleged deliberate withholding 

of the statement made by the Petitioner to Evans. Petitioner 

subsequently filed an amendment to that petition in which he 

challenged the introduction into evidence of his statements to 

"an informer" and raised a challenge essentially to the 

sufficiency of the evidence. (Respondent's Exhibit No. 3). A 

hearing was held by the court on January 30, 1980. By way of 

order dated April 8, 1981, the superior court denied habeas 

corpus relief. (Respondent's Exhibit No. 4). The Supreme 

Court of Georgia denied the subsequent application for a 

certificate of probable cause to appeal on June 7, 1981. A 

subsequent petition for a writ of certiorari was denied by the 

Supreme Court of the United States on November 30, 1981. 

On December 30, 1981, the Petitioner filed a petition for 

habeas corpus relief in the United States District Court for 

the Northern District of Georgia. Among other allegations the 

Petitioner asserted the failure to disclose an "understanding" 

with witness Evans. 

Evidentiary hearings were held before the district court in 

August, 1983, and in October, 1983. An order was entered on 

February 1, 1984, in which the court rejected all the issues 

raised in the petition except for the alleged undisclosed deal 

with witness Evans. The court directed that habeas corpus 

relief be granted as to that issue and ordered that the 

conviction and sentence for malice murder be set aside, but 

affirmed the convictions and sentences for armed robbery. 

McCleskey v, Zant, 580 F. Supp. 338 (M.D.Ca. 1934).   

~3= 

 



  

Both parties appealed the decision of the district court to 

the United States Court of Appeals for the Eleventh Circuit. 

On March 28, 1984, the Eleventh Circuit Court of Appeals 

directed that the case be heard initially by the court sitting 

en bhanc. On January 29, 1985, the en banc court issued an 

opinion which affirmed all convictions and sentences and 

considered the following issues: (1) Giglio claim relating to 

the testimony of Offie Evans; (2) ineffective assistance of 

counsel; (3) burden-shifting jury charge; (4) discrimination in 

the application of the death penalty; and (5) prosecution-prone 

jury. "McCleskey v. Kemp, 753 F.2d 877 {11th Cir. 1985) (en 
  

banc). 

The Petitioner then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. In that 

petition, the Petitioner asserted that the death penalty was 

discriminatorly applied, that there was a violation of Giglio 

  v. United States, 405 U.S. 150 (1972), based upon the testimony 

of Offie Ruane, that the charge on intent was impermissibly 

burden-shifting and that the jury was impermissibly qualified 

as to capital punishment. (Respondent's Exhibit E). This 

Court subsequently granted the petition for a writ of 

certiorari limited to the consideration of the application of 

the death penalty. On April 22, 1987, the Court issued an 

opinion concluding that the Petitioner had not shown 

discrimination in the imposition of the death penalty as to his 

 



  

case and affirmed the decision of the Eleventh Circuit Court of 

Appeals. McCleskey v. Kemp, 481 U.S. 107 S.Ct... 1756, reh. 
  

den., 107 S.Ct. 3199 (1987). On or about May-16, 1987, 

Petitioner filed a petition for rehearing by that Court. In 

that petition, Petitioner reasserted his claim of ineffective 

assistance of counsel at the sentencing phase, reasserted his 

claim relating to the charge on intent and reasserted his claim 

relating to a violation of Giglio v. United States, asserting 
  

  

that the decision in United States v. Bagley, 473 U.S. 667 

(1985), justified the granting of the petition. (Respondent's 

Exhibit F). On June 8, 1987, this Court denied the petition 

for rehearing. 

On June 8, 1987, a successive state habeas corpus petition 

was filed in the Superior Court of Butts County, Georgia. That 

petition raised the following allegations: (1) the prosecutor 

discriminated in the use of peremptory strikes; (2) there was 

intentional discrimination in this case; (3) the state failed 

to disclose impeaching evidence (the alleged "deal" with Offic 

Evans); (4) the trial court erred in denying funds for a 

ballistics expert; and (5) the prosecutor improperly referred 

to appellate review in his argument at the sentencing phase. 

(Respondent's Exhibit G). On June 18, 1987, Respondent filed a 

motion to dismiss asserting that the petition was successive. 

(Respondent's Exhibit H). 

 



  

On June 22, 1987, Petitioner filed an amendment to case 

number 87-V-1028 in Butts County. In that petition the 

Petitioner raised two allegations, that is, that Offie Evans 

was acting as an agent for the State at the time the Petitioner 

made statements to Evans and that the prosecutor failed to 

correct alleged misleading testimony by Evans. (Respondent's 

Exhibit 1). 

A hearing was held before the Superior Court of Butts 

County, sitting in Henry County. (Respondent's Exhibit 0). On 

July 1, 1987, the state habeas corpus court entered an order 

granting Respondent's motion to dismiss finding that the issues 

were either barred from reconsideration under the principles of 

res judicata or could reasonably have been raised in the   

previous petition. (Respondent's Exhibit P). 

On July 2, 1987, Petitioner filed an application for a 

certificate of probable cause to appeal in the Supreme Court of 

Georgia. (Respondent's Exhibit Q). On July 7, 1987, the 

Supreme court of Georgia denied the application. 

On July 7, 1987, Petitioner filed a second federal habeas 

corpus petition in the United States District Court for the 

Northern District of Georgia. After hearings were held by the 

district court on July 8, 1987, :July 9, 1987, and August 10, 

1987, the district court entered an order on December 23, 1987, 

granting habeas corpus TCT IGE only as to Petitioner's murder 

conviction and sentence based upon the finding of a violation 

of Massiah v. United States, 377 U.S. 201 (1964). Respondent   

filed a timely notice of appeal from this ruling. 

~B=~ 

 



  

On April 12, 1988, the Respondent filed a motion for 

remand in thie Eleventh Circuit Court of Appeals based 

upon the availability of Offie Gene Evans. By order dated 

May 2, 1988, and received by counsel on May 5, 1988, 

Respondent filed a motion to stay the briefing schedule 

pending the filing of a Rule 60(b) motion in the district 

court. On May 6, 1988, Respondent filed the Rule 60(b) 

motion in the district court. 

Pursuant to the June 17, 1983, order of the district 

court, both parties conducted discovery including taking 

the deposition of Offie Evans on July 13, 1988. After 

additional pleadings were filed, the Court entered an 

order on January 10, 1989, denying the motion for relief 

from judgment. 

A panel of the Eleventh Circuit Court of Appeals 

entered an opinion on November 22, 1989, amended on 

December 13, 1989, specifically reversing the finding of 

the district court and concluding that the district court 

abused its discretion by failing to find an abuse of the 

writ and that the Petitioner had abused the writ by 

and that any error based on a Massiah violation was   

  

harmless. McCleskev v. Zant, 890 F.2d 342 {11th Cir. 

1989). Rehearing and rehearing en banc were denied on 

February 6, 1990. Petitioner has now filed the instant 

petition challenging the decision of the Eleventh Circuit 

Court of Appeals. 

 



  

PART TWO   

STATEMENT OF FACTS   

The evidence presented at Petitioner's trial showed that on 

May 13, 1978, he and three co-indictees committed a robbery at 

the Dixie Furniture Store in Atlanta, Georgia. During the 

course of the robbery, the Petitioner entered the front of the 

store while his three co-indictees entered 

the back. Petitioner was positively identified at trial 

as one Of the participants in the robbery. (T. 231-232, 

Following the arrest of the Petitioner, he was taken 

to Atlanta, Georgia. On May 31, 1978, the Petitioner made 

a confession to the police in which he admitted his 

participation in the robbery, but denied that he shot 

  Atlanta Police Officer Frank Schlatt. A Jackson v. Denno 

hearing was held at trial and the court determined that 

the confession was freely, intelligently and voluntarily 

made. (T. 426-505). 

Petitioner's co-indictee, Ben Wright, testified at 

trial and related the details of the robbery and murder. 

Ben Wright testified that while he carried a sawed-off 

shotgun, the Petitioner carried a .38 caliber 

nickle-plated, white-handled pistol. (T. 654-656, 

 



  

648-649). Wright testified that co-indictee Burney had a 

blue steel, snub-nosed .32 caliber pistol, while Depree 

had a blue steel .25 caliber pistol. {T. 649-651). 

While Depree, Burney and Wright held several employees 

in the back of the store, the Petitioner was in front. 

Employee Classie Burnwell had activated a silent alarm, 

resulting in the arrival of Officer Frank Schlatt. 

Shortly after Schlatt entered the front of the store, he 

was shot. After hearing two shots, Wright observed the 

Petitioner running out of the front of the store. Wright, 

Depree and Burney ran out of the back. When they all 

arrived at the car, Petitioner stated that he had shot the 

police officer.  (T. 658-9). 

Mr. Everett New and his wife were stopped in their 

automobile at a red light near the Dixie Furniture Store. 

They observed Officer Schlatt arrive at the scene, saw him 

draw his pistol and enter the store. (T. 330). Mr. New 

stated that approximately thirty seconds later he heard 

two shots and shortly thereafter observed a black man 

running out of the front door carrying a white-handled 

pistol; however, he could not identify that individual. 

(T. 331-333). 

 



  

Petitioner testified in his own behalf at trial and 

stated that he knew Ben Wright and the other co-indictees, 

but that he had not participated in the robbery. He 

relied on an alibi defense, stating that Wright had 

borrowed his car and that the Petitioner had spent the day 

at his mother's house and at some apartments in Marietta 

playing cards. Petitioner named several people who had 

been present at the apartments, but did not present any of 

those persons for his defense. (T. 811). 

Petitioner denied that he made a statement to 

Lieutenant Perry that he had participated in the robbery 

and stated that he made a false statement to Detective 

Jowers because of the alleged evidence the police had 

against him (two witnesses who had identified him, the 

description of his car and a statement from David Burney), 

because of his prior convictions and because he did not 

have a good alibi. (T. 823-4). 

Petitioner was also identified at trial by two 

witnesses who had observed him take part in a prior 

similar robbery. Mr. Paul David Ross, manager of the Red 

Dot Grocery Store, had identified the Petitioner 

previously from a set of colored photographs. Ross also 

testified that during the course of the Red Dot Robbery, 

his nickle-plated .38 revolver was taken. 

10 

 



  

Ms. Dorothy Umberger also observed the Petitioner 

during the April 1, 1978, robbery of the Red Dot Grocery 

Store. She testified that she was ninety percent certain 

that the Petitioner was one of the men who had robbed 

her. She based her identification on viewing him at the 

scene of that crime. Ms. Umberger had also identified the 

Petitioner from a photographic display. 

In rebuttal to the defense case, the State presented 

the testimony of Arthur Keissling. This witness testified 

that he had observed the Petitioner participating in the 

robbery of Dot's Produce on March 28, 1978. His 

identification of the Petitioner was positive. {T. 

887-889, 896). 

The State also presented the testimony of Offie Gene 

Evans in rebuttal. Mr. Evans had been incarcerated in 

Fulton County jail in a cell located near the Petitioner 

and Bernard Depree. Evans related that the Petitioner had 

talked about he robbery while in custody and had admitted 

shooting at Officer Schlatt. (7. 869-3870). 

In Petitioner's statement of facts he addresses the 

testimony presented before the district court and other 

aspects of the issues. Respondent would specifically take 

issue with Petitioner's assertion that the facts allegedly 

showing a conspiracy are not seriously at issue and would 

note, as will be set forth subsequently, that Respondent 

~11= 

 



  

has always contested any assertion of a "conspiracy" and 

has always contested any finding of a Massiah violation. 

Remaining facts which relate to the substantive issue of a 

Massiah violation will be addressed subsequently.   

PART THREE   

REASONS FOR NOT GRANTING THE WRIT 
  

1. THE ELEVENTH CIRCUIT COURT OF APPEALS 

PROPERLY FOUND THAT PETITIONER HAD 

ABUSED THE WRIT BY DELIBERATELY 

ABANDONING THE CLAIM OF A MASSIAH 

VIOLATION PRIOR TO FILING HIS FIRST 

FEDERAL HABEAS CORPUS PETITION AND 

PROPERLY FOUND THAT THE DISTRICT COURT 

ABUSED ITS DISCRETION IN NOT MAKING 

THIS FINDING. 

Petitioner first asserts that the Respondent should not be 

allowed to assert abuse of the writ after the state allegedly 

concealed a constitutional violation, thus complaining that the 

state had unclean hands. Petitioner relies upon factual 

findings by the district court concerning an alleged secret 

relationship with an informant. Respondent would note that 

those factual findings have at all times been disputed by the 

Respondent and in fact that holding by the district court was 

~12- 

 



  

reversed and the Eleventh Circuit Court of Appeals specifically 

did not address the merits of the claim; therefore, Respondent 

would assert that any reliance on any factual findings by the 

district court or legal conclusions by the district concerning 

a Massiah violation is simply inappropriate. 

Petitioner also complains that the Eleventh Circuit Court 

of Appeals failed to apply a presumption of correctness to 

alleged factual findings by the district court in relation to 

the abuse of the writ analysis. Respondent submits that 

Petitioner is confusing factual findings with legal 

conclusions. The Eleventh Circuit Court of Appeals 

specifically acknowledged the factual findings by the district 

court, but determined that the district court itself was 

applying an incorrect meaning to the deliberate abandonment 

standard. The meaning of deliberate abandonment is a legal 

question, not a factual question. Therefore, a conclusion by 

the district court that there was no deliberate abandonment 

necessarily ust take into consideration whether that court 

applied a correct standard. Similarly, although the district 

court may have found that reasonably competent counsel could 

not have done certain things, this is not a pure factual 

finding as what is reasonably competent counsel is a legal 

question. As will be set forth in more detail subsequently, 

Respondent submits that the Eleventh Circuit Court of Appeals 

was correct in its conclusion that the district court abused 

-13~ 

 



  

its discretion in failing to find an abuse of the writ and that 

there was a proper finding of a deliberate abandonment of the 

claim. 

Respondent would also note that in arguing the case to this 

Court Petitioner has blatantly ignored the fact that the 

Eleventh Circuit Court of Appeals was not examining this case 

for the first time, but had examined Mr. McCleksey's case en 

banc several years previously and had specifically examined at 

that time an allegation relating to the testimony of Offie 

Evans and was fully aware of the circumstances. In fact, the 

district court in this case is the one who is ignoring prior 

holdings of the Eleventh Circuit Court of Appeals rather than 

the Eleventh Circuit ignoring factual £indings by the district 

court, 

The question raised in the instant case in relation to the 

alleged violation of Massiah v. United States, 377 U.S. 201 
  

(1964), is not one of inexcusable neglect but of deliberate 

abandonment of an issue. Thus, different considerations come 

into play than would be considered when faced with an 

allegation of inexcusable neglect. Inexcusable neglect 

necessarily involves questions of information known to a 

petitioner and whether he could have reasonably raised a 

claim. Deliberate abandonment, which is what is present in the 

instant case, involves siiply a consideration of whether the 

issue was known and the petitioner or his counsel made a   

knowing choice not to pursue the claim after having raised it 

previously. 

-14~ 

 



  

A review of the testimony presented to the district court 

at the first hearing shows that there is no question but that 

the issue was abandoned. First of all, a reference to exhibits 

submitted to the district court by the Respondent reveals that 

the issue was raised in the first state habeas corpus petition 

and was also asserted in the amendment to the first state 

habeas corpus petition. See Respondent's Exhibit H and 

attachments thereto. It is also uncontroverted that Petitioner 

did not raise the claim in the first federal habeas corpus 

petition. As noted by the district courb at the first hearing, 

it was imminently clear that Evans was located in a jail cell 

near the Petitioner, which situation would always raise a 

possibility of a Massiah issue and there was also testimony at 

the trial that Evans relayed information to a deputy. The 

district court was concerned as to why there were no previous 

inquiries as to when Evans might have become an agent of the 

state, if he did at all. (R4-5). The district court further 

noted that nowing that Petitioner was located near Evans at 

the jail and that Evans had apparently cooperated with law 

enforcement officers should have put counsel on notice to 

inquire when the cooperation began. Id. at 19. Counsel for 

the Petitioner never asked either the assistant district 

attorney or any of the police officers when Mr. Evans began 

cooperating with them. 

«15 

 



  

Further, Mr. Robert Stroup testified before the district 

court that he became counsel in this case in April, 1980. He 

raised more than twenty issues in the state habeas corpus 

proceeding first filed in Butts County and it occurred to him 

that there might be a Massiah claim. He felt it was suggested   

just based on the facts. He made some minimal efforts to seek 

information, but those efforts fell short of any kind of in 

depth inquiry. (R4-31-3). He specifically recalled amending 

the state habeas corpus petition which he viewed as raising a 

claim of a violation of Massiah. He also knew by the time of 

the state habeas corpus proceeding that Evans had testified in 

another case involving the same assistant district attorney. 

Mr. Stroup's only excuse for why he did not pursue the claim in 

the first federal habeas proceeding was that he felt that he 

did not have facts to support the claim. This is despite the 

fact that Mr. Stroup at no time talked to Detectives Harris or 

Dorsey prior to or subsequent to the state habeas corpus 

proceeding and did not recall talking to Deputy Hamilton even 

though Hamilton testified at the trial. He did not seek to 

question Detective Dorsey even after Evans mentioned his name 

at the state habeas corpus hearing and did not subpoena any 

records regarding the informant claim. 

The district court originally specifically found that there 

was a deliberate witha lading of the issue of an ab initio 

Massiah violation because it was clear that Mr. Stroup thought 

about the issue at the state habeas corpus stage and decided 

not to pursue it. (R.4-59). 

-16- 

 



  

After all the hearings were conducted, the district court 

judge changed his mind and decided, "Petitioner cannot be said 

to have intentionally abandoned the claim." (R3-22-24). The 

only basis for this decision by the district court was that 

court's conclusion that counsel was unaware of the written 

statement of Offie Evans and that, thus, the factual basis for 

the claim was not known. This clearly reflects an abuse of 

discretion on the part of the district court as this holding is 

totally contrary to the original holding of district court in 

which that court had already found that there was sufficient 

information in the record to put counsel on notice of a 

possible Massiah violation even without a copy of a written 

statement of Offie Evans. 

The question presented to the circuit court was whether the 

district court abused its discretion in simply changing its 

mind and whether that court should have concluded that based 

upon counsel's conduct, there had been an abuse of the writ as 

to this fase, In this case it is clear that counsel knew of 

the existence of the possibility of raising the claim and 

simply chose as a matter of tactics not to present the claim in 

the first federal habeas corpus petition. The simple assertion 

that counsel did not think he had sufficient facts to prove the 

claim is insufficient to overcome the barrier of an intentional 

abandonment of an Yushel Insofar ag the district court 

concluded that counsel did not intentionally abandon this 

f= 

 



  

claim, this is certainly a clearly erroneous finding. The 

record is clear that counsel raised the claim in the state 

habeas corpus proceeding, failed to raise it in the first 

federal habeas corpus proceeding and testified as to the basis 

for his not raising the claim. Counsel obviously felt that he 

had enough information to raise the claim in the state habeas 

corpus proceeding in the first place and also raised other 

claims in the first federal habeas corpus petition which he had 

been unable to factually substantiate, including his claim of 

discrimination. If counsel felt that there was any possible 

merit to the claim, or was even suspicious, he certainly should 

have continued to pursue the claim in the district court to 

avoid possible piecemeal litigation. Counsel then could have 

sought discovery in the district court, as was done on other 

issues in the first federal habeas corpus proceeding, and the 

issue would have been litigated years earlier rather than at 

this late stage of the proceedings. Under these circumstances, 

Respondent WA that this is clearly the type of needless 

litigation that is contemplated by Rule 9(b). The cases 

contemplate courts not considering issues that not only were 

known to counsel at the time of the filing of the first federal 

habeas corpus petition, but which counsel admits he evaluated 

and chose deliberately not to raise, even after having raised 

them in the state courts. 

-—]3 

 



  

Further, Respondent submits that counsel certainly had 

reason to know that there was a written statement of Offie Gene 

Evans and certainly should have made some effort to obtain that 

statement prior to this most recent series of collateral 

attacks. 

The trial court conducted an in camera inspection of 

certain specified material noting in its order, "The court 

finds that although the documents might become material for 

rebuttal at trial, they are not now subject to discovery." 

{T.R. 46). Thus, at this point, counsel knew that there was 

material which was not disclosed to defense counsel but which 

was the subject of an in camera inspection. Clearly, trial 

counsel was free to renew the request at or during trial. 

Further, during cross-examination of the Petitioner at trial, 

counsel for the Petitioner objected to cross-examination by the 

assistant district attorney indicating that he had asked for 

all statements by the Petitioner. The trial court stated, "He 

has a statement which was furnished to the Court but it doesn't 

help your client." (TT. 830). Again, this points to the fact 

that there is some type of written statement which is part of 

the material included in the in camera inspection which was not 

disclosed by the trial court. Although this does not clearly 

indicate that it was in fact a statement of Evans, it certainly 

indicates that it was a statement made by the Petitioner 

himself to someone. The only possible conclusion is that it 

-15- 

 



  

was a statement made to Offie Evans. The only way for the 

police to get any written information relating to this was to 

either obtain a written statement from Evans or make a written 

report concerning a statement given to them by Evans pertaining 

to the statement made to Evans by the Petitioner. Certainly, 

this puts counsel on notice that there is a written document 

which was not seen by defense counsel prior to trial pertaining 

to statements made by the Petitioner while in jail. 

Further, on direct appeal trial counsel raised an 

allegation relating to the failure to disclose statements of 

the Petitioner and the alleged withholding of impeaching 

evidence. In the brief counsel stated, "Offie Gene Evans’ 

statement contains substantial impeachment value." (See 

Attachment to Respondent's Exhibit H). In the opinion on 

direct appeal, the court held, "The prosecutor showed the 

defense counsel his file, but did not furnish this witness 

[Evans'] statement.” McCleskev v, State, 245 Ga. 108, 112, 263 
  

S.E.2d 146 (1980). This seems to be a clear indication that 

the Georgia Supreme Court at least assumed there was a 

statement by Evans which was part of the in camera inspection. 

Certainly, if the Supreme Court of Georgia can make that 

determination from the record then present counsel can also 

make such a determination. 

“20 

 



  

In addition to the above, a reading of the entire state 

habeas corpus proceeding shows that counsel most certainly 

should have been aware of the fact that there was some type of 

written statement as of the time of that proceeding. Counsel 

has asserted that he assumed he had the entire prosecutor's 

file. This is clearly not the case as the record makes it 

clear that what was given to counsel was the file given to 

defense counsel. It was clear from the trial transcript and 

the testimony of defense counsel at the state habeas corpus 

hearing that there were certain matters not included in the 

information provided to defense counsel. Present counsel never 

asked the prosecutor for the documents which were part of the 

in camera inspection and never sought them in the state habeas 

corpus proceeding. 

A review of trial counsel John Turner's testimony in the 

state habeas corpus court shows that counsel clearly should 

have been aware that there was a statement. 1 During the 

questioning of Mr. Turner, he was asked about the testimony of 

Offie Evans and whether that was a surprise to him. Mr. Turner 

responded as follows: 

  

lThe state habeas corpus transcript was included as an 

Exhibit to the first federal habeas corpus case in the district 
court in No. CB1-2434A. The district court stated it would 
take judicial notice of those records. The Respondent requests 
that this Court do the same. 

3] 

 



  

Well, yes and no. And the reason I 

qualify that is because one of the 

first things I said to Mr. McCleskey 

when I interviewed him at the Atlanta 

Jail prior to the preliminary hearing 

was not to make any statements to 

anybody about the incident. In fact, I 

went so far as to say to give him the 

analogy that a fish can't get caught 

unless it opens its mouth to bite the 

hook. I had talked with him constantly 

about that in terms of have you said 

anything to anybody. The bottom line 

was when I got the witness list, I 

noticed that at some stage some 

Deputy's names were on there. The only 

thing I could conclude that something 

had been said or possibly had been 

said. And I asked Mr. McCleskey if he 

had discussed the facts with anyone 

there at the jail and his Co-Defendant 

and he said, "No." 

2D 

 



  

(First state habeas corpus transcript at 76, hereinafter 

referred to as S5.H.7,) The court then went on to state, 

"Well, I think the question should be why they did not 

give you a copy of the statement he made if you made a 

motion for it." 14. It is clear from this that the state 

habeas corpus court felt that there was a statement in 

writing referring to what Mr. McCleskey had told Offie 

Evans. Mr. Turner responded, "Well, I can't answer that 

question even up to this point in time. That was one of 

the issues I raised on appeal, the fact that I was never 

given any indication that the statement existed." Id. 

The habeas court went on to inquire of Mr. Turner as 

to whether he and the prosecutor discussed the matter at 

all. Mr. Turner responded the following: 

We went over the motions, all of the 

motions and the only thing he said to 

me about his file was that there were 

two things which were not included in 

the file. One was the Grand Jury 

testimony of a witness and his logic 

there was that that was not 

discoverable. And the other was just a 

statement he had and he didn't disclose 

what it was or who the person was in 

that context. 

“33 

 



They clearly understood and they knew 

that the motion had been filed. So my 

thinking on the matter was that I had 

everything, particularly relating to 

the statements of the Defendant. 

(8.H.T.77). The court then inquired in detail as to the 

right of a defendant to obtain a copy of his own statement 

under state law. It was also reiterated that Mr. Turner 

did not contact Deputy Hamilton prior to trial even though 

his name was on the list due to the fact that "Mr. 

McCleskey was quite adamant to the fact that he hadn't 

said anything incriminating or even mentioned the case or 

discussed it with anyone." Id. at 79-80. 

During cross-examination Mr. Turner further testified 

that he went over the names on the witness list with the 

Petitioner, "Particularly with criminal records like Offie 

Evans. That was the one I can recall specifically asking 

him about." ld. at 86. The'Petitioner told Mr. Turner 

that he did not know who Offie Evans was. Id. 

From a review of all of the above at least from the 

time of the state habeas corpus hearing, it was the 

general understanding that there was a statement by the 

Petitioner which was not disclosed to trial counsel prior 

to trial. "The only logical conclusion is that this is in  



  

reality a statement of Offie Evans relating a statement by 

the Petitioner or at least a report setting forth the 

information related by Offie Evans concerning what the 

Petitioner told him. This is further emphasized during 

the deposition of the assistant district attorney, Russell 

Parker. 

This deposition was taken by Mr. Stroup on February 

16, 1981. During that deposition, Mr. Parker was asked, 

"Prior to the trial of Warren McCleskey did you have a 

file which you made available to defense counsel 

representing Warren McCleskey?" (Parker deposition at 

4). Mr. Parker responded, "I had a file I made available   

to all the defense counsel in this case." Id. (emphasis 

added) It was again reiterated this was a file made 

available to defense counsel prior to and during trial. 

Thus, the file identified at the deposition was the file 

"that was made available back at pre-trial and trial."   

Id. at 5. (emphasis added). At no time is there any 

indication that this file included the matter which was 

the subject of the in camera inspection, but it was 

clearly stated that this was the matter given to defense 

counsel. 

Further during the deposition, Mr. Stroup refers to a 

"statement" from Offie Evans. In response to a question 

concerning the statement, Mr. Parker clarified so that 

—-2 5. 

 



  

counsel would be fully aware of the circumstances and 

stated, "When you refer to a statement, Offie Evans gave 

his statement but it was not introduced at the trial. It 

was part of that matter which was made in camera 

inspection (sic) by the Judge prior to trial.” 13d. at 8. 

Petitioner has asserted previously that this simply was 

unresponsive to the question. This does not undermine the 

fact that Mr, Parker specifically told counsel for the 

Petitioner in his deposition taken in the first state 

habeas corpus proceeding that there was a statement given 

by Offie Evans, and it was the statement which was the 

subject of the in camera inspection by the trial judge and 

it was clearly not a part of the file being turned over to 

Mr, Stroup at that point in time. To-not understand that 

this refers to a written statement of Offie Evans is 

inexcusable neglect because the only way not to understand 

that is not to listen to Mr. Parker in the deposition or 

not go back and read the deposition after it has been 

prepared. At the end of the deposition, it was reiterated 

that there would be a copy provided of "the entire 

investigative file that was made available to counsel." 
  

Id. at 13 (emphasis added). It should be noted that 

during this deposition the only question asked of Mr. 

  Parker relating to any type of Massiah claim was asked by 

the assistant attorney general and Mr. Stroup simply 

“26 

 



  

failed to ask any questions whatsoever concerning this 

jssue. In fact, the only testimony given by Mr. Parker on 

this point was, "I don't know of any instance where Offie 

Evans worked for the Atlanta Police Department as an 

informant prior to his overhearing conversations at the 

Fulton County Jail." Id. at 15. Mr. Stroup never. pursued 

this question except to ask Mr. Parker concerning a 

possible deal with one of the police officers. Mr. Parker 

related that he did not see how anything such as that 

could have occurred. Id. at 13. 

Counsel has asserted that all of the above specific 

references to written statements and to a written 

statement of Offie Evans was insufficient to put him on 

notice that there actually was a written statement. This 

is virtually incredible in light of the fact that the 

Georgia Supreme Court felt that there was some type of 

written statement and the fact that the state habeas 

corpus court in its order in the first state habeas corpus 

proceeding made the following specific factual findings: 

It is clear that defense counsel had 

access to the prosecution's discovery 

file which included statements from all   

    witnesses (except Evans) and 

investigative reports. (H.T.38; Parker 

deposition, p. 4). 

Wie by TO 

 



  

First state habeas corpus order at 9. (emphasis 

added) . ° This is a clear factual finding by the state 

court that there was actually a written statement from 

Offie Evans and this is a clear indication of the state 

habeas corpus court finding that all statements from all 

witnesses except for that statement given by Offie Evans 

were given to John Turner. Thus, the state habeas corpus 

court itself also specifically realized that there was a 

written statement from Offie Evans. 

All of the above overwhelming indications of the 

existence a written statement by Evans and the clear 

statement by the Georgia Supreme Court that there was some 

type of written statement and the even clearer statement 

by Mr. Parker and the state habeas corpus court that there 

was a written statement, certainly belies any assertion 

that Petitioner's counsel had no basis for knowing of such 

a statement. 

It is also clear that Petitioner had a legal basis for 

obtaining a copy of this statement in the first state 

habeas corpus proceeding or in the first federal habeas 

corpus proceeding. As was found in the second habeas 

  

2This order is included as an attachment to Exhibit H 

submitted to the district court and as Respondent's Exhibit No. 
4 in the second state habeas corpus proceeding. 

~28~ 

 



  

corpus proceeding by that court, "There is legal authority 

giving him the right to access to this document.” Second 

state habeas corpus order at 13. That court found as 

fact, "There is no valid reason why Petitioner could not 

have obtained this statement earlier." Id. at 13. 

Certainly, Petitioner could have sought the statement 

earlier under the Georgia Open Records Act, could have 

subpoenaed the statement from Mr. Parker, could have asked 

for the state habeas corpus court to reopen the record so 

that he could subpoena the statement to a hearing before 

that court, could have asked for discovery from the 

district court in order to obtain that statement or could 

have requested the court to issue a subpoena for that 

statement. Petitioner simply failed to do anything to 

obtain the statement even though there are numerous legal 

avenues which he could have taken to obtain the statement 

at that time. 

Contrary to Petitioner's assertions, the Eleventh 

Circuit Court of Appeals did recognize that the district 

made certain factual findings. The district court 

specifically found that McCleskey was not aware of a 

written statement and the Eleventh Circuit Court of 

Appeals recognized that this was not a clearly erroneous 

  finding. McCleskey, 890 F.2d at 348. What the Eleventh 

Circuit Court of Appeals did was conclude that the 

~39- 

 



  

district court applied an erroneous legal principle. The 

Court specifically found that "the district court 

misconstrues the meaning of deliberate abandonment." Id. 

at 349. What the Eleventh Circuit Court of Appeals 

concluded was that counsel obviously had some factual 

basis for a Massiah claim at the time of the filing of the 

first petition as the issue was raised and "not only was 

counsel aware that Evans was in a cell next to McCleskey, 

(footnote omitted), but counsel was also aware that some 

sort of relationship existed between Evans and the police, 

as this formed the basis of McCleskey's Giglio claim." 

Id. The Court specifically concluded, and the district 

court did not find to the contrary, that counsel "made a 

knowing choice not to pursue the claim after having raised 

it previously." Rather than disputing the factual finding 

by the district court, what the Eleventh Circuit Court of 

Appeals did was take the factual findings and apply a 

correct legal standard examining a question of deliberate 

abandonment to conclude that counsel in fact specifically 

abandoned the claim. There can be no dispute that counsel 

was aware of the possibilty of such a claim as it was 

raised in the first state habeas corpus petition and 

counsel then deliberately chose not to pursue the claim in 

the first federal habeas corpus proceeding. Thus, the 

Eleventh Circuit Court of Appeals did not violate Rule 

52(a) of the Federal Rules of Civil Procedure, but applied 

the clearly erroneous standard only to what were true 

factual findings. 
30 

 



  

Petitioner also asserts that the Eleventh Circuit 

Court of Appeals created some type of new standard with 

regard to abuse of the writ and issues that have been 

deliberately abandoned. Respondent asserts that the 

Eleventh Circuit did no more than apply a correct meaning 

to the terminology "deliberate abandonment". The Eleventh 

Circuit Court of Appeals did not reweigh factual evidence, 

but examined the facts as presented in the record in the 

district court in light of a correct legal standard. 

Perhaps the most telling fact which is not disputed by 

counsel is that had counsel made a simple inquiry at the 

jail at the time of the filing of the first state habeas 

corpus petition and probably even at the time of the 

filing of the first federal habeas corpus petition, the 

jail records would have been in existence which would 

specifically designate the cell assignments for each 

individual prisoner and could have offered unrebuttable 

proof of Mr. Evans' whereabouts on every day while he was 

incarcerated in Fulton County Jail. Thus, there would 

have been no necessity in relying on the memories of 

individuals testifying ten years after the occurrence of 

the events. 

Petitioner also asserts that the state deliberately 

concealed the written statement of Offie Evans. 

Petitioner ignores that the fact that the written 

-31- 

 



  

statement of Offie Evans was not the basis upon which the 

district court found a Massiah violation. In fact, the 

written statement of Offie Evans had very little to do 

with the district court's finding of a Massiah violation.   

The only thing upon which the district court relied was 

the testimony of Mr. Worthy. Whether the Petitioner 

actually had a written statement of Offie Evans is 

immaterial to the Massiah violation found by the district 

court. Petitioner's assertions that there have been ten 

years of perjury and deceit are simply unsupported by the 

record and are not only disputed by the Respondent, but 

contradicted by every witness who testified before the 

district court with the exception of one individual who 

had absolutely no reason to remember these events. 

Respondent submits that contrary to Petitioner's 

assertions, the state is fully entitled to assert abuse of 

the writ. The question is not whether there was a 

constitutional violation but whether the district court 

should have reached the merits of the allegation at all. 

Petitioner's argument would virtually preclude the 

assertion of abuse of the writ in almost every instance 

until there had been a determination as to the merits of 

the underlying claim. Based upon Petitioner's theory, 

abuse of the writ can only be found when there is no merit 

to the claim asserted. This would totally vitiate the 

-32. 

 



doctrine of abuse of the writ. Although courts have found 

an abuse Of the writ partially by finding that there is no 

merit to the allegation raised, there is absolutely no 

requirement that the allegation be meritless before a 

federal court can find abuse of the writ. 

It is clear that the basis utilized by the Eleventh 

Circuit Court of Appeals for finding an abuse of the writ 

is one that has long been recognized by this Court. As 

early a8 Sanders v. United States, 373 U.S. 1, 18 (1963),   

this Court acknowledged that an abuse of the writ could be 

found if one "deliberately withholds . . . grounds for 

federal collateral relief at the time of filing his first 

application. . . ." Furthermore, the Court went on to 

hold, "the same may be true if . . . the prisoner 

deliberately abandons one of his grounds at the first 

hearing." This serves one purpose of abuse of the writ 

doctrine, that is, to eliminate needless piecemeal 

litigation. Furthermore, this Court has also held, 

"successive petitions for habeas corpus that raise claims 

deliberately withheld from prior petitions constitute an 

abuse Of the writ." Woodard v. Hutchins, 464 U.S. 377   

(1984). See also Antone v. Dugger, 465 U.S. 200, 206   

(1984) (noting, "as applicant had presented each of these 

claims to the state court before the first petition for 

habeas was filed . . . applicant hardly can contend that 

these claims were unknown to him at that time.").  



  

The Eleventh Circuit Court of Appeals properly applied 

the precedent of that circuit and of this Court in 

concluding that Petitioner had done exactly what the abuse 

Of the writ doctrine says he cannot do, that is, raise a 

claim at the first state habeas corpus proceeding and then 

deliberately choose not to raise it in the first federal 

habeas corpus proceeding and subsequently seek to raise it 

at a later proceeding. The failure to raise the claim in 

this case is particularly egregious when Petitioner was 

also raising a separate claim challenging the testimony of 

Offie Evans under Giglio v. United States, 405 U.S. 150 
  

(1972), and when that very issue served as the basis for 

the same district court judge's initial reversal of the 

Petitioner's murder conviction and sentence in the first 

federal habeas corpus proceeding and that specific finding 

was reversed by the Eleventh Circuit Court of Appeals 

sitting en banc. 

Respondent would thus submit that the Eleventh Circuit 

Court of Appeals properly found that the district court 

abused its discretion and that there was an abuse of the 

writ by Petitioner's having deliberately abandoned the 

allegation of the Massiah violation. The district court 

was 1lncorrect in reaching the merits of the claim in the 

first instance and was incorrect in its legal analysis of 

the claim. Furthermore, the Eleventh Circuit Court of 

S34. 

 



  

Appeals was correct in its conclusion that counsel had not 

conducted a sufficient investigation so that the Court 

should ignore the deliberate abandonment of the claim. It 

should be noted ironically that counsel pursued a claim 

asserting discrimination in the application in the death 

penalty in his first federal application for habeas corpus 

relief when he did not even have completed studies at the 

time the petition was filed but only had the studies 

completed during the litigation on the first federal 

habeas corpus action. To assert that counsel simply chose 

not to raise this one issue because he did not find a 

sufficient factual basis to prove the claim does not 

undercut the fact that counsel simply did not present this 

issue to the district court for its resolution in the 

first federal habeas corpus action. 

Respondent thus submits that as the Eleventh Circuit 

Court of Appeals applied the appropriate legal principles 

in making an evaluation of the abuse of the writ question, 

there exist no basis for the granting of certiorari by 

this Court. 

-35= 

 



  

II. THE HARMLESS ERROR ANALYSIS CONDUCTED 

BY THE ELEVENTH CIRCUIT COURT OF 

APPEALS IS NOT ESSENTIAL TO A 

RESOLUTION OF THE ABUSE OF THE WRIT 

QUESTION AND, FURTHERMORE, THE 

CONCLUSION BY THAT COURT THAT ANY 

ALLEGED ERROR WAS HARMLESS IS CORRECT. 

Petitioner asserts two bases for this Court's granting 

review to examine what is simply an application of a harmless 

error rule. Petitioner first asserts that this Court should 

grant review to consider the application of Rule 52(a) to a 

harmless error analysis. Petitioner also asserts that the 

harmless error analysis conducted by the Eleventh Circuit Court 

of Appeals was incorrect. 

Respondent would first assert that the harmless error 

analysis conducted by the Eleventh Circuit Court of Appeals was 

unnecessary to the resolution of the abuse of the writ 

question. The Eleventh Circuit Court of Appeals found an abuse 

of the writ by the deliberate abandonment of the claim. The 

Court then went on, however, to examine the question in light 

of an ends of justice analysis. Respondent would submit that 

this type of analysis is contemplated only in cases in which 

issues have been raised and litigated previously. In Kuhlmann   

VY. Wilson, 477 U.S. 436. (19868), the Court did examine the 
  

<36- 

 



  

meaning of "ends of justice" but in the context of the question 

of relitigating issues, not in a context of addressing issues 

which had been deliberately abandoned. Respondent would submit 

that once an issue has been deliberately abandoned, the ends of 

justice analysis 1s simply not necessary. 

Respondent would also submit that there exists no basis for 

this Court's granting review to simply examine a question of 

the applicability of the clearly erroneous rule under the 

circumstances of this case. Petitioner again focuses on 

purported findings by the district court while failing to point 

out that the only findings by the district court in relation to 

the harmless error analysis are derived strictly from the trial 

transcript, not from any live testimony presented before the 

district. court. In fact, the district court itself 

specifically ignored prior findings by the Eleventh Circuit 

Court of Appeals sitting en banc. Under these circumstances, 

there was no reason why the Eleventh Circuit Court of Appeals 

could not rely on its own prior opinion and rely on exactly 

what it observed from the trial transcript in making a harmless 

error analysis. The district court's statements that certain 

things were testified to at trial did not amount to findings of 

fact, but simple citations from the transcript. The Eleventh 

Circuit Court of Appeals is fully capable of making its own 

Citations to the transcript. The district court did not make 

any independent factual findings regarding trial testimony as 

237 

 



  

the district court did not have those witnesses before it for 

making any credibility assessments. Thus, Rule 52(a) simply is 

inapplicable. 

Petitioner specifically asserts that the district court's 

holding violated Amadeo v. Zant, U.S. 108 S.Ct. 1771   

(1988). Petitioner ignores the fact that in Ameado, the 

district court had live witnesses testifying in a habeas corpus 

proceeding and was not examining simply what took place at the 

trial of case. The error cited by this Court in Amadeo was the 

circuit courts's failure to apply the clearly erroneous rule to 

factual findings by the district oourt based on live testimony 

and to apply the rule to findings as to why an attorney engaged 

in a particular type of conduct. The Eleventh Circuit Court of 

Appeals in this case did not disagree with factual findings of 

this nature by the district court. 

Petitioner primarily focuses on the purported finding by 

the district court that Offie Evans' testimony was critical to 

the state's case and the district court's purported findings 

that Ben Wright's testimony was obviously impeachable. 

Petitioner ignores the fact that these were precisely the 

considerations that the Eleventh Circuit Court of Appeals 

engaged in sitting en banc upon review of the first federal 

habeas corpus action. It was this holding by the Eleventh 

Circuit Court of Appeals that the district court in this case 

ignored in making its harmless error analysis. In fact, the 

-3 3 

 



  

Eleventh Circuit Court of Appeals did not state that it 

disagreed with the district court's finding as to Ben Wright's 

testimony, but did specifically disagree with the conclusion as 

to the nature of Offie Evans' testimony, relying on its prior 

holding. Under these circumstances, the clearly erroneous rule 

of 52(a) simply does not come into play. 

Respondent would further submit that the Eleventh Circuit 

Court of Appeals properly found that any alleged constitutional 

violation was harmless beyond a reasonable doubt. That Court 

acknowledged the distinction between examining an issue alleged 

to be a violation of Giglio v. United States and an issue 
  

alleged to be a violation of Massiah v. United States. The   

Court also noted the holding of this Court in Satterwhite vv.   

Texas, 486° U.S. 249 (1988). 

This Court has acknowledged that Sixth Amendment violations 

under certain circumstances may be subject to a harmless error 

  

analysis. See United States v. Morrison, 449 U.S. 361 (1981). 

The Eleventh Circuit Court of Appeals made a correct analysis 

of the harmless error question utilizing the standard of 

Chapman v. California, 386 U.S. 18 (1967). Respondent submits   

that as the Eleventh Circuit Court of Appeals applied the 

proper standard in making the harmless error analysis, this 

Court should decline to grant certiorari simply to review the 

conclusion as to whether any alleged error was harmless. 

+39 

 



  

Petitioner and the district court conclude that Evans’ 

testimony was critical to establish that the Petitioner was the 

triggerman and to establish malice. This is based on testimony 

by Evans that the Petitioner admitted shooting the policeman, 

stated he wore makeup during the robbery and stated he would 

have shot his way out even if there had been a dozen 

policemen. Ironically, Petitioner now refers to Offie Evans as 

an apparently disinterested witness at the trial of the case, 

when the Petitioner has consistently asserted just the 

opposite, that is, that based upon some type of deal or 

agreement for Mr. Evans' testimony he was not a disinterested 

witness and was in fact a biased witness. 

The Eleventh Circuit examined first the testimony of Offie 

Evans regarding Petitioner's admission that he was the 

triggerman. The Court noted the state presented a substantial 

amount of circumstantial evidence relating to this aspect of 

the case. 

McCleskey himself confessed to his 

participation in the robbery. The officer 

was killed by the man who entered and 

- secured the front of the store while the 

other three men were in the back. McCleskey 

was identified by two of the store personnel 

as the robber who came in the front door. 

~40~ 

 



  

The officer was killed by a bullet from a 

.38 caliber Rossi handgun. The state 

presented evidence that McCleskey had stolen 

a .38 caliber Rossi in a previous holdup. 

The gun that McCleksey had stolen had a 

white handle. The state presented testimony 

from an eyewitness that the robber who ran 

out the front door after the robbery was 

carrying a pearl-handled pistol. 

¢Cleskey, 890 F.24 at 352. 

The Court also noted that Ben Wright, the co-defendant, also 

testified that McCleskey was the triggerman. The Court 

concluded that the other evidence at trial was such that the 

Court could conclude that any additional testimony by Offie 

Evans did not contribute to the verdict. 

The Court also examined Mr. Evans' testimony relating to 

the svgertion that the Petitioner was wearing makeup. This was 

examined by the panel as well as by the en banc court and was 

found not to crucial to the state's case. This fact lent proof 

to the assertion that the Petitioner was the robber entering 

the front of the store. There was already testimony directly 

to this effect by Ben Wright as well as two eyewitnesses to the 

crime and was corrobated by the Petitioner's own confession. 

Thus, this one aspect of the testimony also could reasonably 

have been said not to contribute to the verdict. 

wd Lime 

 



  

Finally, the other assertion relates to the testimony by 

Offie Evans that the Petitioner would have been willing to 

shoot his way out if there had been twelve policemen. Again, 

this particular piece of testimony, if erroneously admitted, 

was harmless beyond a reasonable doubt. As noted by the 

Eleventh Circuit Court of Appeals, this was not focused upon in 

the prosecutor's closing argument as the prosecutor argued 

malicious intent based upon the physical evidence that the 

Petitioner shot the police officer once in the head and a 

second time in the chest as he was dying on the floor of the 

store, that the Petitioner had a choice to surrender but chose 

instead to kill the police officer, thus indicating malice as 

well as arguing the one statement from Mr. Evans. Thus, the 

evidence pertaining to malice was overwhelming and the 

testimony of Offie Evans did not contribute to the verdict on 

malice murder. Furthermore, Mr. Evans did not testify at the 

sentencing phase of the trial and the testimony of Evans was 

not used by the prosecutor during his argument concerning 

Petitioner to portray Petitioner as a malicious criminal, but 

rather the prosecutor focused on the prior convictions of 

Petitioner. 

Under these circumstances, Respondent submits that the 

Eleventh Circuit properly concluded that any alleged error was 

harmless beyond a reasonable doubt and properly distinguished 

this case from the decision in Satterwhite v. Texas, in which 
  

Wo 

 



  

the critical testimony was from a psychiatrist. There this 

Court noted that the testimony was important because of the 

qualifications of the psychiatrist and because of the "powerful 

content of his message." Id. Contrary to Satterwhite, the   

testimony in this case did no more than corroborate other 

evidence already in the record and, thus, was harmless beyond a 

reasonable doubt. 

Respondent submits that the Eleventh Circuit Court of 

Appeals properly conducted the harmless error analysis, 

recognizing the distinction between a Giglio issue and a 

Massiah issue and properly found that even if there were a 

Massiah violation, the admission of the testimony of Offie 

Evans was harmless beyond a reasonable doubt. As the Eleventh 

Circuit properly applied the precedent of this Court, there 

exists no basis for this Court granting review to simply 

consider a harmless error analysis. 

A I 

 



  

CONCLUSION   

WHEREFORE, for all of the above and foregoing reasons, 

Respondent prays that the petition for the writ of certiorari 

filed on behalf of Warren McCleskey be denied. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 

Attorney General 

/ jo 
fA 7, fA Ar a To Ae - 2 (A 1 A (r A Ly 7 pod 7b ——¥y/ Ni | 
  

WILLIAM B. HILL, JR. V' 7354725 
Deputy Attorney General 

/ ~7 74 

I A an 7; /28C lq, 7% 
  

SUSAN V. BOLEYN 7 065850 
Senior Assistant Attorney General 

  Yheeflosch fleeing. inf, 
me a WESTMORELAND 750150 
Seni Assistant Attorney General 

Please serve: 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square 
Atlanta, Georgia 30334 
(404) 656-3349 

44 - 

 



  

CERTIFICATE OF SERVICE 
  

I, Mary Beth Westmoreland, Attorney of Record for the 

Respondent, and a member of the Bar of the Supreme Court of the 

Unied States, hereby certify that in accordance with the Rules 

of the Supreme Court of the United States, I have served a Copy 

of the foregoing Brief in Opposition for the Respondent upon 

opposing counsel by depositing same in the United States mail 

with sufficient, first class postage affixed thereto, and 

addressed as follows: 

Robert H. Stroup 

141 Walton Street 

Atlanta, Georgia 30303 

John Charles Boger 
99 Hudson Street 

New York, New York 10013 

This & HAday of April, 1990. 

  
Weer Bess le Lh 
MARY fem WESTMORELAND _/ 
Senior Assistant 
Attorney General 

-45-