Memo from Lani Guinier to Penda, Peter, Joel, Ron, and Clyde Re: Suit and Blacksher's Findings

    MASTER. 

  

& IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085, 89-8085 

  

  
  

WARREN McCLESKEY, 

Petitioner-Appellee, 

V. 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

  
  

BRIEF OF AMICI CURIAE ALABAMA CAPITAL REPRESENTATION 
RESOURCE CENTER, VOLUNTEER LAWYERS' RESOURCE CENTER OF 
FLORIDA, and GEORGIA APPELLATE PRACTICE EDUCATIONAL 

AND RESOURCE CENTER IN SUPPORT OF PETITIONER-APPELLEE'S 
PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC 

  

  

BRYAN A. STEVENSON STEVEN M. GOLDSTEIN 

Alabama Capital Representation Volunteer Lawyers Resource 
Resource Center Center of Florida 

444 Clay Street 805 N. Gadsden Street, Suite A 
Montgomery, Alabama 36104 Tallahassee, Florida 32303 
(205) 269-1803 (904) 681-6499 

MARK E. OLIVE 

" Georgia Appellate Practice 
Educational and Resource 
Center 

920 Ponce Deleon 

Atlanta, Georgia 30306 
(404) 898-2060 

Counsel for Amici Curiae 
  

 



  

TABLE OF CONTENTS 
  

Table of Contents ® © © & © ®» © © © © O° 0° oo ® ® © © © © ® © © © © © © 5 © © © © 6 © © © 0 © 

Table Of AUtNOriti1es . .«crnrs ve vnersvveee ® ® © © © © © & © © © © © 0° © 

I OBIE LOY inv vis von nine 00 o vine mivie ene os minsins oie oe vine sees ons 

Argument 

I. THE PANEL OPINION IMPOSES A STRICT LIABILITY 

STANDARD OF PERFORMANCE ON HABEAS COUNSEL 
WHICH IS UNPRECEDENTED, IN CONFLICT WITH 
SANDERS wv. UNITED STATES, AND, WITHOUT AN 
INFUSION OF ADDITIONAL RESOURCES FAR IN 
EXCESS OF THOSE NOW AVAILABLE FOR 
REPRESENTING CONDEMNED HABEAS PETITIONERS, 
IMPOSSIBLE TO MEET. .¢cceceecccccccscce 

  

II. THE PANEL OPINION ALSO ENCOURAGES THE STATE 
TO CONCEAL ITS VIOLATIONS OF A CAPITAL 
DEFENDANT'S CONSTITUTIONAL RIGHTS AND 
UNDERMINES THE WILL TO COMPLY VOLUNTARILY 
WITH CONSTITUTIONAL MANDATES. .cccccecccoe . 

CONCLUSION ov vvininnsvivvine “se 

CBTtifiCate Of SOTVICE ott centsnosenrmtsssosstrensosene 

ii 

12 

15 

15 

 



  

TABLE OF AUTHORITIES 
  

Cases Page 

Anadeo v. Zant, 100 L.PA.2Q 249 (1988) wesveonsssonsss . 7:14 

Berger Vv. United States, 295 U.S. 78 (1935) eceecevvnvos 12 

Foster v. Dugger, 823 P.2d 402 (11th Cir. 1987) wecevsn 8 

Iovett v. Florida, 627 F.2d 706 (Bth Cir. 1980) cevsnes 6 

Mackey v. United States, 401 U.S. 667 (1971) .cceecceses 12 

Moore V. Zant, 885 P.2d 1497 (11th Cir. 1989) .eesnvs oa 7 

Murray Vv. Carrier, 477 U.S. 478 (1986) "vuivennsvorreoveiny 7 

Solomon v. Kemp, 735 F.2d 395 (llth Cir. 1984) ..eusven 6 

‘Strickland v. Washington, 466 U.S. 668 (1984) ...ceeeee 7 

United States v. Bagley, 473 U.S. 667 (1985) vevsevecsas 12 

Treatises 
  

A. Amsterdam, Trial Manual 5 for the Defense of 

Criminal Cases (1080) weve rsesssnssnsrercsssnens in 7 
  

  

W. Prosser, law of Torts (4th ed. 1975) ...... Cove ninen 3 
  

® i 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085, 89-8085 

  

  

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

Ve 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

    

  

BRIEF OF AMICI CURIAE ALABAMA CAPITAL REPRESENTATION 
RESOURCE CENTER, VOLUNTEER LAWYERS' RESOURCE CENTER OF 
FLORIDA, and GEORGIA APPELLATE PRACTICE EDUCATIONAL 

AND RESOURCE CENTER IN SUPPORT OF PETITIONER-APPELLEE'S 
PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC 

  

  

Introduction 

Amici Curiae present this brief in order to emphasize the 
  

exceptional importance of the ruling by the panel in McCleskey 
  

v. Zant and to call to the Court's attention some of the 
  

consequences of the panel's decision which may not have been 

apparent to the panel. Those consequences are painfully apparent 

to us, because the rule of McCleskey will severely compromise 
  

our ability to accomplish the goals for which we were created. 

If McCleskey is the 1law,. we must explain to counsel who 
  

volunteer to represent condemned persons in capital post- 

 



  

conviction proceedings that they will be required to perform 

under a standard of strict liability -- that they must identify 

every potential claim and investigate it exhaustively, without 

the ability to make reasonable professional judgments that claims 

are factually unavailable; that they can never abandon claims 

which have been identified, because of the possibility that new 

facts may be discovered in the future which will substantiate the 

claims =-- even though ethical rules, as embodied in procedural 

rules like Fed. R. Civ. Proc. 11, may require that such claims be 

abandoned due to the absence of known factual support; and that 

they must carry out these responsibilities whether or not they 

have the resources or can obtain them from the courts. In these 

circumstances, recruitment of volunteer counsel, which is one of 

our goals, will be A EET more difficult. And for each of 

those counsel who are nevertheless willing to volunteer, we will 

have to spend considerably more time providing assistance-- 

which we will not be able to provide to each volunteer unless our 

own staff resources are expanded many-fold. We urge the Court to 

consider these matters as it entertains the petition for 

rehearing and suggestion for rehearing en banc filed by Mr. 

McCleskey. 

 



  

Argument 
  

I. 

THE PANEL OPINION IMPOSES A STRICT LIABILITY 
STANDARD OF PERFORMANCE ON HABEAS COUNSEL 
WHICH IS UNPRECEDENTED, IN CONFLICT WITH 
SANDERS wv. UNITED STATES, AND, WITHOUT AN 
INFUSION OF ADDITIONAL RESOURCES FAR IN 
EXCESS OF THOSE NOW AVAILABLE FOR 
REPRESENTING CONDEMNED HABEAS PETITIONERS, 
IMPOSSIBLE TO MEET. 

  

The panel held that Mr. McCleskey abused the writ by not 

including his Massiah claim in his first federal habeas petition 

even though at that time he did not know, and had no reason to 

know, there was a factual basis for the claim. The panel did not 

examine whether McCleskey's ignorance was the result of counsel's 

deficient performance, from the perspective. of a "reasonable 

performance" standard, in investigating the factual basis for the 

claim. It held instead that since there was factual support for 

the claim, McCleskey's failure to discover it was enough, 

standing alone, to warrant a finding of abuse of the writ. The 

panel thus applied a "strict liability" standard -- "the 

principle that in some cases the defendant may be held liable, 

although he ... has not ... departed in any way from a reasonable 

standard of intent or care," W. Prosser, Law _of Torts § 75, at 
  

494 (4th. ed. 1971) -- to gauge the performance of habeas 

‘counsel. This standard has never been applied, in any context, 

to determine the consequences of a criminal defendant's failure 

to discover the factual basis for a claim. It is thus 

unprecedented and in contlice with settled abuse of the writ 

principles and with every other principle governing the analysis 

- 3 = 

 



  

of the consequences of a criminal defense lawyer's omissions and 

defaults. It is, as well, at war with the prevailing concerns 

for decreasing chaos, confusion, and delay, and for increasing 

fairness in federal capital habeas proceedings. The full court 

should, accordingly, reconsider the panel's decision. 

Rather than analyzing whether counsel's failure to discover 

the key evidence supporting his Massiah claim was the product of 

inexcusable neglect, a lack of due diligence, or a failure to 

undertake a reasonable investigation, the panel examined only 

whether counsel could have discovered the evidence. Slip Op., at 

17-19. The panel decided that he could have, for the evidence 

ultimately came to light in the second habeas proceeding.l 

Because the evidence did finally surface, the panel faulted 

counsel for not discovering it earlier, finding that 

[his previous investigative] efforts were 
somewhat lacking[;] . . . [he could have] 
pursue [d] the Massiah claim more 
vigorously([;] . . . [and] a more extensive 
effort at that time [to find the witness who 
ultimately established the claim] . . . would 
. . « have turned up [that person]. 

  

14. The panel did not decide that counsel's previous 

investigative efforts were unreasonable. It recognized only that 

they were unsuccessful, and since additional effort -- of the 

sort that counsel made in the second habeas proceeding -- was 

  

hl However, as we note in point II, infra, because of the 
state's concealment of the evidence, it is not at all clear that 
counsel even "could" have discovered the evidence in connection 
with the first proceeding. After that proceeding, a change in 
Georgia's open records law made available for the first time 
evidence which suggested, contrary to the state's concealment 
evidence, that there was a Massiah violation. 

- 4 - 

 



  

successful, it assumed that such effort would have been 

successful in the first proceeding. Counsel was faulted for not 

undertaking such an effort, and Mr. McCleskey's Massiah claim was 

forfeited for abuse of the writ, for this reason: counsel 

"fail[ed] to follow through with [the] investigation" that would 

have brought the crucial facts to light -- in short, he failed 

"to make a thorough investigation of the facts...." Slip Op., at 

19. 

Notably missing from the panel's analysis was any attempt to 

gauge the reasonableness or unreasonableness of counsel's failure 

to find the critical evidence. Plainly, a more exhaustive 

investigation, an investigation in which every person who 

remotely might have known of the facts establishing a Massiah 

violation was interviewed, might have turned up the evidence.? 
  

However, in any other criminal law context where counsel fails to 

discover evidence, the question concerning the consequences of 

counsel's failure is not addressed simply by demonstrating that, 

through a more extensive investigation, counsel could have 

discovered the evidence. Rather, the question is resolved by 

determining whether counsel should have undertaken the additional 

  

2 We emphasize "might have," because interviews, 
particularly of police officers or correctional officers, may not 
have led to the revelation of the crucial facts. Often such 
witnesses will not talk at all with counsel or investigators for 
condemned prisoners, or will talk only reluctantly, with little 
recollection of any material facts. Further, the earlier 
investigation could not have extended to persons whose possible 
connection with the Massiah violation was made known only through 
documents which were not discoverable at the time of the first 
habeas proceeding. 

 



  

investigation that was necessary to find the evidence, measured 

by a standard of "reasonableness" or "due diligence." In 

omitting this analytical step, the panel effectively imposed a 

strict liability standard of performance on habeas counsel: if 

the evidence is there, counsel must take every step necessary to 

find it, no matter how extraordinary or seemingly unreasonable 

the effort might be. In short, unlike the rule governing 

counsel's performance in every other context, habeas counsel must 

"pursue every path until it bears fruit or until all available 

hope withers." Solomon Vv. Hemp, 738 F.24 395, 401 (11th Cir. 
  

1984) (quoting Lovett v. Florida, 627 F.24 708, 708 (Bth Cir. 
  

1980). This requirement is unprecedented, at odds with governing 

abuse of the writ principles, and unworkable.3 

In no other criminal law context is counsel required to meet 

  

such a standard of performance. In representing a criminal 

defendant, counsel's performance need only be reasonable. 

3 It may be that the panel did not intend to create a 
strict liability standard of performance for habeas counsel. 
Such a standard is plainly not in keeping with the equitable 
principles underpinning federal habeas corpus to which the panel 
alludes at pages 7-8 of the slip opinion. The ability of the 
district courts to exercise their "equitable power" under abuse 
of the writ principles depends, in part, upon the ability of 
those courts to hold that in some circumstances the condemned 
habeas petitioner's counsel has previously done "enough" to 
investigate a claim that the failure to discover facts should not 
bar the successive presentation or re-presentation of the claim 
upon the discovery of new facts. If the panel intended to apply 
such a rule in McCleskey's case, the opinion is at least 
misleading in this respect and may very well be misinterpreted by 
the district courts as imposing a standard of strict liability. 
Thus, rehearing should be granted to make this clear and to 
measure the performance of McCleskey's counsel under a 
"sufficient" or "reasonable" investigation standard in lieu of a 
strict liability standard. 

 



  

Strickland v. Washington, 466 U.S. 668 (1981). To secure a new 
  

trial on the basis of evidence newly discovered after trial, 

counsel need only show that his or her failure to discover the 

evidence earlier was not due to the failure to exercise due 

diligence. See 3 A. Amsterdam, Trial Manual 5 for the Defense of 
  

Criminal Cases § 457, at 281-82 (1989) (referring to the due 

diligence standard as a "time-honored" component of the criteria 

governing motions for a new trial on the basis of newly- 

discovered evidence). Finally, to overcome a procedural default 

created by counsel's ignorance of the facts material to a claim, 

counsel need only "show[] that the factual . . . basis for a 

claim was not reasonably available to counsel...." Murray v. 
  

Carrier, 477 U.S. 478, 488 (1986). See also Amadeo Vv. Zant, 100 
  

L.Ed.2d 249 (1988) (applying the Carrier rule). 

Moreover, settled abuse of the writ principles are 

manifestly in conflict with a strict 1iability performance 

standard. To avoid an abuse of the writ, the petitioner need 

only show, as the panel ironically noted here, "that his failure 

to raise [the claim in an earlier petition] was not due to 

inexcusable neglect." Slip Op., at 10 (citing cases) (emphasis 
  

supplied). As interpreted by this Circuit, this standard 

forgives habeas counsel's failure to raise claims in prior 

petitions when the legal or factual basis of the claims was 

unknown, so long as "reasonably competent counsel" would not 

have known the basis for the claims. Moore Vv. Zant, 885 F.2d 
  

1497, 1506 (11th Cir. 1989) (en banc). Manifestly under this 

 



  

standard, counsel who conducts a reasonable, though less than 

exhaustive, investigation, fails as ‘a result to discover the 

facts necessary to establish a claim, and for this reason does 

not raise the claim in an earlier petition, does not abuse the 

writ when he later discovers the material facts and presents the 

claim in a subsequent petition. Yet this is precisely what 

happened in Mr. McCleskey's case.? 

  

4 The appropriate analytical framework for an assessment 
of counsel's reasonableness in failing to undertake additional 
investigation is succinctly but completely set forth in Foster v. 
Dugger, 823 F.2d 402, 405 (11th Cir. 1987), cert. denied, 101 
L.Ed.2d 946 (1988): 

  

  

When assessing a decision not to 
investigate, we must make 'every effort ... 
to eliminate the distorting effects of 
hindsight, to reconstruct the circumstances 

  

of counsel's challenged conduct, and to 
evaluate the conduct from counsel's 
perspective at the time.’ Strickland v. 
Washington, 466 U.S. at 689. Counsel need 
  

not 'pursue every -path until it bears fruit 
or until all available hope withers." 
Solomon v. Kemp, 735 F.2d 395, 402 (1lith Cir. 
1984) (quoting Lovett wv. Florida, 627 F.2d 
706, 708 (3th Cir. :19830)); See also 
Washington v. Watkins, 655 F.2d 1346, 1356 
{11th Cir. Unit A 1981) cert. denied, 456 
U.S. 949 (1982). The appropriate legal 
standard is not error-free representation, 
but 'reasonableness in all the circumstances, 
applying a heavy measure of deference to 
counsel's judgments.’ Strickland v, 
Washington, 466 U.S. at 691, 104 8.Ct. at 
2066; see also Darden v. Wainwright, 477 U.S. 
187 (1986). Accordingly, it is necessary to 
review those factors that influenced 
[counsel's] decision to forego further 
investigation into [his client's] mental 
illness. 

  

  

  

  

  

  

  

  

When McCleskey's habeas lawyer's decision to forego further 
investigation of the Massiah claim is measured against the 
factors that influenced the decision, the decision was well 

- 8 - 

 



  

The imposition of a strict liability performance standard 

for habeas counsel is not only unprecedented and contrary to 

governing principles of law; it is utterly impossible to 

accommodate. If McCleskey is the law, the task of habeas counsel 
  

in investigating potential constitutional claims is staggering. 

Every identifiable claim which depends on non-record . evidence 

will have to be investigated until evidence is found to 

substantiate it, or until there is no other conceivably material 

witness to interview or depose and no other conceivably material 

document that is obtainable. Even then, a decision cannot be 

made to abandon the «claim, for the consequence of such a 

decision would be to foreclose the claim from further litigation 

  

within the range of reasonable judgments. Counsel obtained 
investigative guidance from Atlanta police officers who had been 
his clients in a civil matter. These officers suggested that he 
talk with certain deputies who worked at the Fulton County Jail 
because they would be the most likely to know whether Offie Evans 
had been placed in a cell next to McCleskey for the purpose of 
obtaining inculpatory statements. R4-31-33. Counsel talked to 
two or three of these officers, who did not have any useful 
information. R4-33. Thereafter, the trial prosecutor testified 
in a deposition that he had no knowledge of Offie Evans' working 
as an informant at the time he allegedly obtained the inculpatory 
statements from Mr. McCleskey. Fed. Exh. 3, 9-10, 14-15. 

Finally, habeas counsel was provided a file by the state 
which was represented to be the entire prosecution file. That 
file did not contain the written statement of Offie Evans, 
subsequently obtained in the course of the second habeas 
proceeding, which bore the indicia of the state's facilitation of 
Evans' efforts to obtain inculpatory statements from McCleskey. 

Habeas counsel took these facts to mean that there was no 
factual basis for a Massiah claim, for two of the jailors who 
would likely have known such facts, knew of none, the prosecutor, 
who likely would have known such facts as well, knew of none, and 
the prosecutor's file contained no hint of a Massiah violation. 
Counsel's decision to forego any further investigation was 
eminently reasonable in these circumstances. 

- 9 = 

 



  

if new, unthought-of evidence should thereafter become available. 

No lawyer who provides zealous representation to a condemned 

client can take that risk. 

Accordingly, each case will now have to consume far more 

resources than are presently available. It is impossible to 

determine what the long-term consequences will be, but 

immediately, drastic changes will have to be made. The number of 

cases in which the resource centers provide assistance will have 

to be reduced severely. The investigative resources and staff 

attorney time that are now available to all volunteer counsel 

will have to be redirected to this reduced number of cases. 

Volunteer counsel to whom the resource centers can no longer 

devote resources will be left without significant support from or 

consultation with the resource centers. These volunteer counsel 

will as a result be forced to ask for heretofore unheard of 

financial assistance from the federal courts.® The principle of 

reasonable attorney judgments about the scope of investigation 

will no longer be exercised, and with its demise, the cost of 

litigating each death penalty habeas case will go up 

exponentially.® 

  

5 This assumes that volunteer counsel will still come 
forward. It is certainly not unimaginable that the pool of 
volunteer lawyers will quickly dry up, however, for the burden of 
representing a death-sentenced person under a strict liability 
performance standard may well demand too much of lawyers who 
provide their services as volunteers, seeking to meet a need 
which is universally =--. but not constitutionally =-- recognized. 

6 In addition to monetary costs, the burden to the 
federal courts in reviewing habeas petitions will increase 
substantially. Notwithstanding ethical constraints and rules 

- 10 =- 

 



  

In this period of history, when the Powell Commission, the 

ABA Task Force on Death Penalty Habeas Corpus, the Supreme Court, 

the Congress, this Court and other federal courts are. acutely 

concerned about chaos, unfairness, and inefficiency in capital 

habeas corpus proceedings, the new McCleskey rule -- even if it 
  

had a thread of support in the law -- would be profoundly 

inappropriate because of its extraordinary capacity to magnify 

many-fold the chaos, unfairness, and inefficiency that now exists 

in capital habeas corpus proceedings. 

iz. 

THE PANEL OPINION ALSO ENCOURAGES THE STATE 

TO CONCEAL ITS VIOLATIONS OF A CAPITAL 
DEFENDANT'S CONSTITUTIONAL RIGHTS AND 
UNDERMINES ' THE WILL TO COMPLY VOLUNTARILY 

WITH CONSTITUTIONAL MANDATES. 

Wholly missing from the panel's calculus in McCleskey is any 
  

concern for the state's misconduct in violating, then concealing 

the violation of, Mr. McCleskey's Sixth Amendment rights. The 

entire burden of McCleskey's failure to find the facts 

supporting his Sixth Amendment claim is placed upon him through 

the strict liability standard of performance for habeas counsel. 

  

  

like Fed. R. Civ. Proc. 11, the McCleskey rule will no longer 
permit non-record-evidence claims, once identified, to be 
abandoned. Even though counsel's investigation may not have 
revealed substantiating facts, no counsel could feel comfortable, 
under a strict liability standard, deciding that no new 
substantiating facts would arise or be revealed in the future. 
Thus, even claims which counsel could not certify are "well 
grounded in fact," Rule 11, would nevertheless have to be raised 
in federal habeas corpus proceedings. The burden to the courts, 
as well as the impossible ethical dilemma imposed on habeas 
counsel, are thus additional critical components of the "cost" 
equation which must be accounted for under the panel's rule. 

 



  

The result of this one-sided burdening process will be to 

undermine the will of the states to comply voluntarily with 

constitutional mandstss and to encourage the states to conceal 

violations of capital defendants' constitutional rights. 

Like all other constitutional principles regulating the 

conduct of state authorities, those established to protect the 

rights of criminal defendants are heavily dependent upon 

voluntary compliance by the state's police officers and 

prosecutors. Investigating officers, for example, are expected 

to obey the rule of Massiah v. United States; if they do not, 
  

state prosecutors are expected not to offer the resulting 

confessions in evidence; and if they are offered, the 

prosecutors are at least expected to disclose the possible Sixth 

Amendment violation through which they were obtained. To 

paraphrase Justice Harlan in Mackey v. United States, 401 U.S. 
  

.667, 691 (1971) (separate opinion of Harlan, J.), "[n]o one, not 

criminal defendants, not the judicial system, not society as a 

whole is benefitted" by undermining these expectations. It is 

the same expectations that underlie the duty of the prosecutor 

to depart from a purely adversarial role and disclose any 

evidence that is favorable to the defense, 

for the prosecutor's role transcends that of 
an adversary: he 'is the representative not 
of an ordinary party to a controversy, but of 
a sovereignty . . . whose interest . . . in 
a criminal prosecution is not that it shall 
win a case, but that justice shall be done.' 

United States v. Bagley, 473 U.S. 667, 675 (1985) (quoting Berger 
  

v. United States, 295 U.S. 78, 88 (1935)). 
  

 



  

The expectations that the police and the prosecutors will 

voluntarily honor the constitutional rights of criminal 

defendants -- and in the process serve the higher goal of justice 

-- will be seriously undermined if the McCleskey rule is allowed 
  

to stand. The McCleskey rule will have this effect because it 
  

insulates the police and the prosecutor from the adverse 

consequences of violating a defendant's rights. It allows the 

police and prosecutor to "get away" with the violation so long as 

it can be concealed through the course of a first federal habeas 

  

proceeding. The McCleskey rule ‘places the entire burden of 

finding the violation on the petitioner, and if he fails to 

find it in the first habeas proceeding =-- even though the chances 

of such failure may have been increased by he state's continuing 

concealment of the violation =-- he will not be heard to complain 

thereafter. Far from encouraging voluntary compliance with the 

Constitution, the McCleskey rule thus will provide an incentive 
  

not to comply with it, for it will remove an important sanction 

-- federal habeas corpus relief -- for non-compliance.’ 

  

7 The damage which McCleskey would cause to the equitable 
balance struck by habeas corpus is well illustrated by the facts 
in McCleskey. In the first state habeas proceeding, in which 
McCleskey asserted the Massiah claim, McCleskey's investigative 
efforts were met with the following concealment by the state: 
The state purported to give McCleskey the complete prosecutorial 
file, yet that file did not include the 2l1l-page "transcript" of 
Evans' conversations with McCleskey, which is the document that 
so highly suggested there was a Massiah violation. Further, the 
prosecutor testified in a deposition that, to his knowledge, the 
state had no "informant relationship" with Evans at the time he 
allegedly obtained inculpatory statements from McCleskey. 
Finally, though the officers who were involved in the Massiah 
violation were not interviewed in the initial investigation, when 
they finally testified about the violation, they denied any 

  

  

- 13 = 

 



  

The Supreme Court has recognized the risk in such a rule and 

has refused to adopt it in the context of procedural default. 

Thus, where a criminal defendant's failure to raise a claim is 

based on his not knowing the facts which would support the claim, 

his default is forgiven if the state has played a role in 

concealing the facts. In Amadeo v. Zant, for example, where the 
  

petitioner failed to raise a jury composition challenged in part 

because he did not know of a prosecutor's memorandum directing 

the underrepresentation of blacks and women, the Court held: 

If the District Attorney's memorandum was not 
reasonably discoverable because it was 
concealed by Putnam County officials, and if 
that concealment . . . was the reason for 
the failure of petitioner's lawyers to raise 
the jury challenge in the trial court, then 
petitioner established ample cause to excuse 
his procedural default under this Court's 
precedent. 

100 L.Fd.2d at 260, 

The Court recognized in Amadeo what the panel failed to 

recognize here: if the prosecution plays a role in making the 

discovery of a constitutional violation "'impracticable'" after 

"reasonable" investigative efforts by defense counsel, the 

prosecutor -- not the defendant -- must bear the burden of the 
    

defendant's previous default. If the delicate balance that makes 

our constitutionally-guided system work on a day-to-day basis is 

to be maintained, the same rule must prevail in successive habeas 

corpus proceedings. 

  

knowledge of it. It is hard to imagine what else the state could 
have done to cover its tracks. 

 





  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085, 89-8085 

  

  

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 

WALTER D. ZANT, Superintendent 
Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

  

  

Motion For In Banc Court 1) To Consider The 
Motion Of Amici Curiae To File Brief In Sup- 
port Of Appellant’s Petition For Rehearing And 
Suggestion For Rehearing In Banc, And, If 
Necessary, 2) To Review The Action By A 
Single Judge Denying The Motion To File Amici 
Curiae Brief 

  

Counsel for Amici Curiae requests that the full court act 

upon the motion filed December 12, 1989, entitled “Motion for 

Leave to File Brief of Amici Curiae Alabama Capital Representa- 
  

tion Resource Center, Volunteer Lawyers’ Resource Center of Flo- 

rida, and Georgia Appellate Practice Educational and Resource 

Center in Support of Petitioner-Appellee’s Petition for Rehearing 

and Suggestion for Rehearing In Banc” [hereinafter, “Amici Mo- 

tion”]. The following grounds support the requested relief: 

 



  

i. Pursuant to 11th Cir. R. 29-1, Amici Curiae filed an 

Amici Motion on December 12, 1989. See Attachment 1. By Order 

entered December 15, 1989, a singe judge denied the Amici Motion. 

See Attachment 2. 

24 The Amici Motion requested leave to file a Brief in 

support of Petitioner-Appellee’s request for in banc rehearing. 

The Rules of this Court allow a single judge to act on a motion 

for leave to file briefs as amicus curiae, see 11th Cir. R. 27-1 

(d) (12), but that Rule apparently pertains only to motions made 

when a case is solely before a panel. 

3. A petition for rehearing in banc may be acted upon by 

judges who were not members of the panel, indeed, that is the very 

purpose of the petition. Just as a single judge may not foreclose 

consideration by other judges of a petition for in banc rehearing, 

see I.0.P. -- Suggestions of Rehearing In Banc, a single judge 

should not be able to foreclose consideration by other judges of 

factors which might counsel in favor of granting in banc rehear- 

ing, i.e., a request by amici curiae to file a brief. 

4. A logical construction of this Court’s rules thus sug- 

gests that a single judge may not deny a request by amici to file 

a brief in suppcrt of an Appellant’s petition for in banc rehear- 

ing. Accordingly, amici requests that the order entered by a 

single judge on December 15, 1989, be vacated, and that the full 

court consider the Amici Motion. 

5. Alternatively, and only if the Court believes that a 

single judge may deny a motion by amici to file a brief in support 

 



  

of a Petitioner’s request for in banc consideration, such a denial 

by a single judge is always “subject to review by the court.” 

11th Cir. R. 27-1(d). Amici requests that the court conduct such 

a review of the December 15, 1989, Order. 

6. Amici have set forth their interest in this Court’s re- 

considering the panel opinion in detail in the brief filed here- 

with. Amici here provide only a summary of this interest. 

7. The panel opinion in McClesky establishes a ”strict lia- 
  

bility” standard of performance for federal habeas counsel. This 

is a matter of exceptional importance, for it is unprecedented and 

at odds with every other applicable standard of performance for 

criminal defense lawyers. 

8. This standard of performance will severely impair the 

ability of the capital defense resource centers in this Circuit to 

accomplish the mission for which this Court and others supported 

their creation: (a) to recruit additional, high quality volun- 

teer counsel to represent condemned persons in state and federal 

collateral proceedings, and (b) to provide resources that will 

enhance the ability of volunteer counsel to represent their cli- 

ents zealously and effectively. 

9. This standard of performance will also diminish the 

willingness of prosecutors and police officers to comply volun- 

tarily with many of the constitutional safeguards mandated in 

capital prosecutions, thereby diminishing the measure of justice 

afforced capital defendants in ways which often cannot or will not 

be remedied by the courts. 

 



  

10. Because the capital defense resource centers in this 

Circuit are uniquely situated to bring these concerns to the 

Court’s attention, and because these concerns weigh heavily in 

favor of rehearing, Amici Curiae urge the Court to receive their 

brief. 

WHEREFORE, for the reasons set forth above, amici curiae 

respectfully request, pursuant to Rule 29 of the Federal Rules of 

Appellate Procedure, that the motion to file an amici curiae brief 

in support of Petitioner-Appellee’s petition for rehearing and 

suggestion for rehearing in banc be granted. 

Respectfully submitted, 

Bryan A. Stevenson 
Alabama Capital Representation 

Resource Center 
444 Clay Street 
Montgomery, AL 36104 
(205) 269-1803 

Steven M. Goldstein 
Volunteer Lawyers’ Resource 

Center of Florida, Inc. 
805 North Gadsden Street 

Suite A 
Tallahassee, FL 32303 
(904) 681-6499 

Mark E. Olive 
Georgia Resource Center 
920 Ponce de Leon Avenue, N.E. 
Atlanta, GA 30306 
(404) 898-2060 

COUNSEL FOR AMICI CURIAE 

wel lf Ls 
  

Mark E. Olive 

 



  

CERTIFICATE OF SERVICE 
  

I certify that a copy of the foregoing has been furnished by 

mail to Mary Beth Westmoreland, counsel for Respondent-Appellant, 

Office of the Attorney General, 40 Capital Square, S.W., 132 State 

Judicial Building, Atlanta, GA, 30334, and John Charles Boger, 

counsel for Petitioner-Appellee, NAACP Legal Defense Fund, 99 

Hudson Street, 16th floor, New York, New York, 10013, by mail, 

All 
this 2 Say of December 1989. 

  

MARK EVAN OLIVE 
Georgia Resource Center 
920 Ponce de Leon Avenue, N.E. 
Atlanta, Georgia 30306 
(404) 898-2060 

 



Enited States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, N.W. 

» Atlanta, Georgia 30303 Miguel J. Cortez 
In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

Nos. 88-8085 & 89-8085 - MCCLESKEY V. ZANT 

  

The following action has been taken in the referenced case: 

XX The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing a reply brief. 

for filing a petition for rehearing, which is due to be 
filed in the clerk's office on said date. 

for filing 
  

this extension is granted subject to the condition that 
no additional extensions will be requested by the movant 
and that the specified document will be filed on or before 
this new date. 

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

Motion to file amicus brief in support of appellee's petition for rehearing 
in banc is denied. Returned herewith are 15 copies of the amicus brief. | %

 
| 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: avctoa— 
eputy Clerk 

Mary Beth Westmoreland, Esq. MOT-2 
Richard H. Burr, 111, Esq. 7/87 
John Charles Boger, Esq. 
Robert H. Stroup, Esq. 

Bryan A. Stevenson, Esq. 

Steven M. Goldstein, Esq. (briefs) 

Mark E. Olive, Esq. 

  

 



  

IN THE UNITED STATES COURT OF APPEALS 

  FOR THE ELEVENTH CIRCUIT | FILED 

U.S. COURT OF APPEALS 

ENTH 
Cientir 

= 

Nos. 88-8085 & 
89-8085 DEC 4 5 

  

    wore enema 

MIGUEL J. CORTEZ 
WARREN MCCLESKEY, CLERK 

  

A 

Petitioner-Appellee, 

versus 

WALTER ZANT, Superintendent, 
Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

Appeals from the United States District Court for the 
Northern District of Georgia 

O RD'E R: 

Appellee's motion to file an oversized petition for 

rehearing in banc not exceeding 33 pages 1s Jeanie 

lin Koovis 
  

MG re ts: CIRCUIT JUDGE 

 



  

IN THE UNITED STATES COURT OF APPEALS 

  

  
  

    
    

FOR THE ELEVENTH CIRCUIT FILED 

U.S. COURT OF APPEALS 
ELEVENTH CIRCUIT 

Nos. 88-8085 & RE \ 
89-8085 UEL J 

MIGUEL J. CORTEZ 

WARREN MCCLESKEY, CLERK 
  

Petitioner-Appellee, 

versus 

WALTER ZANT, Superintendent, 

Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

Appeals from the United States District Court for the 
Northern District of Georgia 

O RD FE R: 

The motion of Alabama Capital Representation Resource 

Center, Volunteer Lawyers' Resource Center in Florida, and 

Georgia Appellate Practice Educational and Resource Center 

to file a brief as amicus curiae in support of appellee's 

petition for rehearing in banc is drnrid + 

Gee. i aiid 
  

UNITED STATES CIRCUIT JUDGE 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085, 89-8085 

  

  

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

Ve 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic and Classified Center, 

Respondent-Appellant. 

  

  

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE ALABAMA 
CAPITAL REPRESENTATION RESOURCE CENTER, VOLUNTEER 
LAWYERS' RESOURCE CENTER OF FLORIDA, and GEORGIA 
APPELLATE PRACTICE EDUCATIONAL AND RESOURCE CENTER IN 
SUPPORT OF PETITIONER-APPELLEE'S PETITION FOR 
REHEARING AND SUGGESTION FOR REHEARING EN BANC 

  

Amici Curiae =-- Alabama Capital Representation Resource 
  

Center, Volunteer Lawyers' Resource Center of Florida, and 

Georgia Appellate Practice Educational and Resource Center-- 

respectfully request leave to file the attached amicus brief in 

support of petitioner-appellee's petition for rehearing and 

suggestion for rehearing en banc. Amici have set forth their 
  

interest in the Court's reconsidering the panel opinion in detail 

in the brief, but in sum, their interest = is the following: 

1. The panel opinion in McCleskey establishes a "strict 
  

liability" standard of performance for federal habeas counsel. 

 



  

This is a matter of exceptional importance, for it is 

unprecedented and at odds with every other applicable standard of 

performance for criminal defense lawyers. 

2. This standard of performance will severely impair the 

ability of the capital defense resource centers in this Circuit 

to accomplish the mission for which this Court and others 

supported their creation: (a) to recruit additional, high 

quality volunteer counsel to represent condemned persons in state 

and federal collateral proceedings, and (b) to provide resources 

that will enhance the ability of volunteer counsel to represent 

their clients zealously and effectively. 

3. This standard of performance will also diminish the 

willingness of prosecutors and police officers to comply 

voluntarily with many of the constitutional safeguards mandated 

in capital prosecutions, thereby diminishing the measure of 

justice afforded capital defendants in ways which often cannot or 

will not be remedied by the courts. 

Because the capital defense resource centers in this Circuit 

are uniquely situated to bring these concerns to the Court's 

attention, and because these concerns weigh heavily in favor of 

rehearing, amici curiae urge the Court to receive their brief. 

 



  

For the reasons set forth above, amici curiae respectfully 

request, pursuant to Rule 29 of the Federal Rules of Appellate 

Procedure, that the motion to tile aa amici curiae brief in 

support of Petitioner-Appellee's petition for rehearing and 

suggestion for rehearing en banc be granted. 

Respectfully submitted, 

Bryan A. Stevenson 

Alabama Capital Representation 
Resource Center 

444 Clay Street 
Montgomery, AL 36104 
(205) 269-1803 

Steven M. Goldstein 
Volunteer Lawyers' Resource 

Center of Florida, Inc. 
805 North Gadsden Street 

Suite A 
Tallahassee, FL 32303 

(904) 681-6499 

Mark E. Olive 

Georgia Resource Center 
920 Ponce de Leon Avenue, N.E. 

Atlanta, GA 30306 

(404) 898-2060 

COUNSEL FOR AMICI CURIAE 

By: 

Steven M. Goldstein 

Certificate of Service 

I certify that a copy of the foregoing has been furnished by 

- i 

 



  

mail to Mary Beth Westmoreland, counsel for Respondent-Appellant, 

Office of the Attorney General, 40 Capital Square, S.W., 132 

State Judicial Building, Atlanta, GA 30334, and John Charles 

Boger, counsel for Petitioner-Appellee, NAACP Legal Defense Fund, 

99 Hudson Street, 16th Floor, New York, New York 10013, by mail 

this 12th day of December 1989. 

Cdn NMA. 
  

Steven M. Goldstein 

Volunteer Lawyers' Resource 
Center of Florida, Inc. 

805 North Gadsden Street 
Suite A 

Tallahassee, FL 32302 
(904) 681-6499 

 



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, N.W. 

Atlanta, Georgia 30303 

Janyary 23, 1990 ° 

  

In Replying Give Number 

Of Case And Names Of Parties 

Miguel! J Cortez 

Clerk 

MEMORANDUM TO ADDRESSEES LISTED BELOW 

Nos. 88-8085 & 89-8085 - MCCLESKEY V. ZANT 

  

The following action has been taken in the referenced case: 

XX The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing a reply brief. 

for filing a petition for rehearing, which is due to be filed in the clerk's office on said date. 

for filing 
  

this extension is granted subject to the condition that no additional extensions will be requested by the movant and that the specified document will be filed on or before this new date. 

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: aveloa— 
eputy Clerk 
  

Mark E. Olive, Esq. 
John Charles Boger, Esq. 2 

Mary Beth Westmoreland, Esq. 

Bryan A. Stevenson, Esq. 

Steven M. Goldstein, Esq. 
Robert H. Stroup, Esqg. 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085 & 89-8085 

    

  
  

WARREN MCCLESKEY, BE i  Arpiats 

Petitioner-Appellee, dReUr, 

versus J 3 980 

WALTER ZANT, Superintendent, : 
Georgia Diagnostic and Classification Center| Mes dont? 

SRI i LITE 
  Respondent~Appellant. 

  

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

  

Before KRAVITCH and EDMONDSON, Circuit Judges, and RONEY, Senior 
Circuit Judge. 

BY - PRE - COURT: : 

The Alabama Capital Representation Resource Center, 

Volunteer Lawyers' Resource Center in Florida, and Georgia 

Appellate Practice Educational and Resource Center have filed a 

motion for reconsideration of this court's denial of their motion 

to file an amicus curiae brief in support of appellee Warren 

McClesKey's petition for rehearing en banc. After careful 

consideration, the motion for reconsideration is DENIED. 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085, 89-8085 

  

  
  

WARREN McCLESKEY, 

Petitioner-Appellee, 

Vv. 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

  
  

BRIEF OF AMICI CURIAE ALABAMA CAPITAL REPRESENTATION 
RESOURCE CENTER, VOLUNTEER LAWYERS' RESOURCE CENTER OF 
FLORIDA, and GEORGIA APPELLATE PRACTICE EDUCATIONAL 

AND RESOURCE CENTER IN SUPPORT OF PETITIONER-APPELLEE'S 
PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC 

  

  

BRYAN A. STEVENSON STEVEN M. GOLDSTEIN 

Alabama Capital Representation Volunteer Lawyers Resource 
Resource Center Center of Florida 

444 Clay Street 805 N. Gadsden Street, Suite A 
Montgomery, Alabama 36104 Tallahassee, Florida 32303 
(205) 269-1803 (904) 681-6499 

MARK E. OLIVE 

“ Georgia Appellate Practice 
Educational and Resource 
Center 

920 Ponce Deleon 

Atlanta, Georgia 30306 
(404) 898-2060 

Counsel for Amici Curiae 
  

 



  

TABLE OF CONTENTS 
  

Table Of Contents ccceceeveee 

Table Of Authorities .ccveeeee 

Introduction ses e veins Tarr JAHRE oe MED NNO, ARS TRE er 

Argument 

I. THE PANEL OPINION IMPOSES A STRICT LIABILITY 

STANDARD OF PERFORMANCE ON HABEAS COUNSEL 
WHICH IS UNPRECEDENTED, IN CONFLICT WITH 
SANDERS wv. UNITED STATES, AND, WITHOUT AN 
INFUSION OF ADDITIONAL RESOURCES FAR IN 
EXCESS OF THOSE NOW AVAILABLE FOR 
REPRESENTING CONDEMNED HABEAS PETITIONERS, 
IMPOSSIBLE TO MEET. 

  

II. THE PANEL OPINION ALSO ENCOURAGES THE STATE 
TO CONCEAL ITS VIOLATIONS OF A CAPITAL 
DEFENDANT'S CONSTITUTIONAL RIGHTS AND 
UNDERMINES THE WILL TO COMPLY VOLUNTARILY 
WITH CONSTITUTIONAL MANDATES. ® © & & © oo © 2 Oo oo 0° 0° 0 

ii 

12 

15 

15 

 



  

TABLE OF AUTHORITIES 
  

Cases Page 

Amadeo v. Zant, 100 L.Ed.2d 249 (1988) ..... LE EA 7...14 

Berger v. United States, 295 U.S. 78 (1935) «ons oranines 12 

Foster v. Dugger, 823 F.2d 402 (11th Cir. 1987) ves ss 8 

lovett v. Florida, 627 PF.24 706 (5th Cir. 1980) cevese. 6 

Mackey v. United States, 401 U.S. 667 (1971) ..ceeeee .s 12 

Moore Vv. Zant, 885 F.2d 1497 (11th Cir. 1989) wees veves 7 

Murray v. Carrier, 477 U.S, 478 (1986) .covennssnns . win ate 7 

Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984) .ceaneen 6 

Strickland v. Washington, 466 U.S. 668 (1984) ..... sane 7 

United States v. Bagley, 473 U.S. 667 (1985) wevvecvrone 12 

Treatises 
  

A. Amsterdam, Trial Manual 5 for the Defense of 
Criminal Cases (1989) ..ccc.. WETS ER TE aE TN 7 
  

  

W. Prosser, Law Of Torts (4th ed. 1975) crv veersvveernns 3 
  

® ‘ 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085, 89-8085 

  

  

  

WARREN McCLESKEY, 

Petitioner-Appellee, 

Yeo 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic and Classification Center, 

Respondent-Appellant. 

  

  

BRIEF OF AMICI CURIAE ALABAMA CAPITAL REPRESENTATION 
RESOURCE CENTER, VOLUNTEER LAWYERS' RESOURCE CENTER OF 
FLORIDA, and GEORGIA APPELLATE PRACTICE EDUCATIONAL 

AND RESOURCE CENTER IN SUPPORT OF PETITIONER-APPELLEE'S 
PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC 

  

  

Introduction 
  

Amici Curiae present this brief in order to emphasize the 
  

exceptional importance of the ruling by the panel in McCleskey 
  

v. Zant and to call to the Court's attention some of the 
  

consequences of the panel's decision which may not have been 

apparent to the panel. Those consequences are painfully apparent 

to us, because the rule of McCleskey will severely compromise 
  

our ability to accomplish the goals for which we were created. 

If McCleskey is the law, we must explain to counsel who 
  

volunteer to represent condemned persons in capital post- 

 



  

conviction proceedings that they will be required to perform 

under a standard of strict liability -- that they must identify 

every potential claim and investigate it exhaustively, without 

the ability to make reasonable professional judgments that claims 

are factually unavailable; that they can never abandon claims 

which have been identified, because of the possibility that new 

facts may be discovered in the future which will substantiate the 

claims =-- even though ethical rules, as embodied in procedural 

rules like Fed. R. Civ. Proc. 11, may require that such claims be 

abandoned due to the absence of known factual support; and that 

they must carry out these responsibilities whether or not they 

have the resources or can obtain them from the courts. In these 

circumstances, recruitment of volunteer counsel, which is one of 

our goals, will be considerably more difficult. And for each of 

those counsel who are nevertheless willing to volunteer, we will 

have to spend considerably more time providing assistance-- 

which we will not be able to provide to each volunteer unless our 

own staff resources are expanded many-fold. We urge the Court to 

consider these matters as it entertains the petition for 

rehearing and suggestion for rehearing en banc filed by Mr. 

McCleskey. 

 



  

Argument 
  

I. 

THE PANEL OPINION IMPOSES A STRICT LIABILITY 
STANDARD OF PERFORMANCE ON HABEAS COUNSEL 
WHICH IS UNPRECEDENTED, IN CONFLICT WITH 
SANDERS wv. UNITED STATES, AND, WITHOUT AN 
INFUSION OF ADDITIONAL RESOURCES FAR IN 
EXCESS OF THOSE NOW AVAILABLE FOR 
REPRESENTING CONDEMNED HABEAS PETITIONERS, 
IMPOSSIBLE TO MEET. 

  

The panel held that Mr. McCleskey abused the writ by not 

including his Massiah claim in his first federal habeas petition 

even though at that time he did not know, and had no reason to 

know, there was a factual basis for the claim. The panel did not 

examine whether McCleskey's ignorance was the result of counsel's 

deficient performance, from the perspective of a "reasonable 

performance" standard, in investigating the factual basis for the 

claim. It held instead that since there was factual support for 

the «claim, McCleskey's: failure to discover it was enough, 

standing alone, to warrant a finding of abuse of the writ. The 

panel thus applied a "strict liability" standard =-- "the 

principle that in some cases the defendant may be held liable, 

although he ... has not ... departed in any way from a reasonable 

  

standard of intent or care," W. Prosser, Law _of Torts § 75, at 

494 (4th. ed. 1971) -- to gauge the performance of habeas 

counsel This standard has never been applied, in any context, 

to determine the consequences of a criminal defendant's failure 

to discover the factual basis for a claim. It is thus 

unprecedented and in conflict with settled abuse of the writ 

principles and with every other principle governing the analysis 

- 3 = 

 



  

of the consequences of a criminal defense lawyer's omissions and 

defaults. It is, as well, at war with the prevailing concerns 

for decreasing chaos, confusion, and delay, and for increasing 

fairness in federal capital habeas proceedings. The full court 

should, accordingly, reconsider the panel's decision. 

Rather than analyzing whether counsel's failure to discover 

the key evidence supporting his Massiah claim was the product of 

inexcusable neglect, a lack of due diligence, or a failure to 

undertake a reasonable investigation, the panel examined only 

  

whether counsel could have discovered the evidence. Slip Op., at 

17-19. The panel decided that he could have, for the evidence 

ultimately came to light in the second habeas proceeding.l 

Because the evidence did finally surface, the panel faulted 

counsel for not discovering it earlier, finding that 

[his previous investigative] efforts were 
somewhat lacking[:;] . . . [he could have] 
pursue [d] the Massiah «claim more 
vigorously([;] . . . [and] a more extensive 
effort at that time [to find the witness who 
ultimately established the claim] . . . would 

. « have turned up [that person]. 

  

14, The panel did not decide that counsel's previous 

investigative efforts were unreasonable. It recognized only that 

they were unsuccessful, and since additional effort -- of the 

sort that counsel made in the second habeas proceeding -- was 

  

h However, as we note in point II, infra, because of the 
state's concealment of the evidence, it is not at all clear that 
counsel even "could" have discovered the evidence in connection 
with the first proceeding. After that proceeding, a change in 
Georgia's open records law made available for the first time 
evidence which suggested, contrary to the state's concealment 
evidence, that there was a Massiah violation. 

- 4 =- 

 



  

successful, it assumed that such effort would have been 

successful in the first proceeding. Counsel was faulted for not 

undertaking such an effort, and Mr. McCleskey's Massiah claim was 

forfeited for abuse of the writ, for this reason: counsel 

"fail[ed] to follow through with [the] investigation" that would 

have brought the crucial facts to light -- in short, he failed 

"to make a thorough investigation of the facts...." Slip Op., at 

19. 

Notably missing from the panel's analysis was any attempt to 

gauge the reasonableness or unreasonableness of counsel's failure 

to find the critical evidence. Plainly, a more exhaustive 

investigation, an investigation in which every person who 

remotely might have known of the facts establishing a Massiah 

violation was interviewed, might have turned up the evidence.? 
  

However, in any other criminal law context where counsel fails to 

discover evidence, the question concerning the consequences of 

counsel's failure is not addressed simply by demonstrating that, 

through a more extensive investigation, counsel could have 

discovered the evidence. Rather, the question is resolved by 

determining whether counsel should have undertaken the additional 

  

2 We emphasize "might have," because interviews, 
particularly of police officers or correctional officers, may not 
have led to the revelation of the crucial facts. Often such 
witnesses will not talk at all with counsel or investigators for 
condemned prisoners, or will talk only reluctantly, with little 
recollection of any material facts. Further, the earlier 
investigation could not have extended to persons whose possible 
connection with the Massiah violation was made known only through 
documents which were not discoverable at the time of the first 
habeas proceeding. 

 



  

investigation that was necessary to find the evidence, measured 

by a standard of "reasonableness" or "due diligence." In 

omitting this analytical step, the panel effectively imposed a 

strict liability standard of performance on habeas counsel: if 

the evidence is there, counsel must take every step necessary to 

find it, no matter how extraordinary or seemingly unreasonable 

the effort might be. In short, unlike the rule governing 

counsel's performance in every other context, habeas counsel must 

"pursue every path until it bears fruit or until all available 

  

hope withers." Solomon Vv. Xemp, 735 F.2d 395, 401 (1ith Cir. 

1984) (quoting lovett v. Florida, 627 F.2d 708, 708 (5th Cir. 
  

1980). This requirement is unprecedented, at odds with governing 

abuse of the writ principles, and unworkable.3 

In no other criminal law context is counsel required to meet 

  

such a standard of performance. In representing a criminal 

defendant, counsel's performance need only be reasonable. 

4 It may be that the panel did not intend to create a 
strict liability standard of performance for habeas counsel. 
Such a standard is plainly not in keeping with the equitable 
principles underpinning federal habeas corpus to which the panel 
alludes at pages 7-8 of the slip opinion. The ability of the 
district courts to exercise their "equitable power" under abuse 
of the writ principles depends, in part, upon the ability of 
those courts to hold that in some circumstances the condemned 
habeas petitioner's counsel has previously done "enough" to 
investigate a claim that the failure to discover facts should not 
bar the successive presentation or re-presentation of the claim 
upon the discovery of new facts. If the panel intended to apply 
such a rule in McCleskey's case, the opinion is at least 
misleading in this respect and may very well be misinterpreted by 
the district courts as imposing a standard of strict liability. 
Thus, rehearing should be granted to make this clear and to 
measure the performance of McCleskey's counsel under a 
"sufficient" or "reasonable" investigation standard in lieu of a 
strict liability standard. 

 



  

Strickland v. Washington, 466 U.S. 668 (1981). To secure a new 
  

trial on the basis of evidence newly discovered after trial, 

counsel need only show that his or her failure to discover the 

evidence earlier was not due to the failure to exercise due 

diligence. See 3 A. Amsterdam, Trial Manual 5 for the Defense of 
  

Criminal Cases § 457, at 281-82 (1989) (referring to the due 
  

diligence standard as a "time-honored" component of the criteria 

governing motions for a new trial on the basis of newly- 

discovered evidence). Finally, to overcome a procedural default 

created by counsel's ignorance of the facts material to a claim, 

  

counsel need only "show[] that the factual . . . basis for a 

claim was not reasonably available to counsel...." Murray Vv. 

Carrier, 477 U.S. 478, 488 (1986). See also Amadeo v. Zant, 100 
  

L.Ed.2d 249 (1988) (applying the Carrier rule). 

Moreover, settled abuse of the writ principles are 

manifestly in conflict with a strict liability performance 

standard. To avoid an abuse of the writ, the petitioner need 

only show, as the panel ironically noted here, "that his failure 

to raise [the claim in an earlier petition] was not due to 

inexcusable neglect." Slip Op., at 10 (citing cases) (emphasis 
  

supplied). As interpreted by this Circuit, this standard 

forgives habeas counsel's failure to raise claims in prior 

petitions when the legal or factual basis of the claims was 

unknown, so long as "reasonably competent counsel" would not 

have known the basis for the claims. Moore v. Zant, 885 F.24 
  

1497, 1506 (llth Cir. 1989) (en banc). Manifestly under this 

 



  

standard, counsel who conducts a reasonable, though less than 

exhaustive, investigation, fails as a result to discover the 

gacks necessary to establish a claim, and for this reason does 

not raise the claim in an earlier petition, does not abuse the 

writ when he later discovers the material facts and presents the 

claim in a subsequent petition. Yet this is precisely what 

happened in Mr. McCleskey's case.? 
  

4 The appropriate analytical framework for an assessment 
of counsel's reasonableness in failing to undertake additional 
investigation is succinctly but completely set forth in Foster v. 
Dugger, 823 F.2d 402, 405 (1ith Cir. 1987), cert. denied, 101 
L.Ed.2d 946 (1988): 

  

  

When assessing a decision not to 
investigate, we must make 'every effort ... 
to eliminate the distorting effects of 
hindsight, to reconstruct the circumstances 

  

of counsel's challenged conduct, and to 
evaluate the conduct from counsel's 

perspective at the time.’ Strickland v. 
Washington, 466 U.S. at 689. Counsel need 
  

not 'pursue every path until it bears fruit 
or until all available hope withers.' 
Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 
1984) (quoting Lovett wv. Florida, 627 F.2d 
706, 708 (3th Cir. 1980)); see also 
Washington wv. Watkins, 655 F.2d 1346, 1356 
{11th Cir. Unit A 1981) cert. denied, 456 
U.S. 949 (1982). The appropriate legal 
standard is not error-free representation, 
but 'reasonableness in all the circumstances, 
applying a heavy measure of deference to 
counsel's Jjudgments.' Strickland v, 
Washington, 466: U.S. at 691, 104 S.Ct. at 
2066; see also Darden v. Wainwright, 477 U.S. 
187 (1986). Accordingly, it is necessary to 
review those factors that influenced 
[counsel's] decision to forego further 
investigation into [his client's] mental 
illness. 

  

  

  

  

  

  

  

  

When McCleskey's habeas lawyer's decision to forego further 
investigation of the Massiah claim is measured against the 
factors that influenced the decision, the decision was well 

- GB - 

 



  

The imposition of a strict liability performance standard 

for habeas counsel is not only unprecedented and contrary to 

governing principles of law; it is utterly impossible to 

accommodate. If McCleskey is the law, the task of habeas counsel 
  

in investigating potential constitutional claims is staggering. 

Every identifiable claim which depends on non-record evidence 

will have to be investigated until evidence is found to 

substantiate it, or until there is no other conceivably material 

witness to interview or depose and no other conceivably material 

document that is obtainable. Even then, a decision cannot be 

made to abandon the claim, for the consequence of such a 

decision would be to foreclose the claim from further litigation 

  

within the range of reasonable judgments. Counsel obtained 
investigative guidance from Atlanta police officers who had been 
his clients in a civil matter. These officers suggested that he 
talk with certain deputies who worked at the Fulton County Jail 
because they would be the most likely to know whether Offie Evans 
had been placed in a cell next to McCleskey for the purpose of 
obtaining inculpatory statements. R4-31-33. Counsel talked to 
two or three of these officers, who did not have any useful 
information. R4-33. Thereafter, the trial prosecutor testified 
in a deposition that he had no knowledge of Offie Evans' working 
as an informant at the time he allegedly obtained the inculpatory 
statements from Mr. McCleskey. Fed. Exh. 3, 9-10, 14-15. 

Finally, habeas counsel was provided a file by the state 
which was represented to be the entire prosecution file. That 
file did not contain the written statement of Offie Evans, 
subsequently obtained in the course of the second habeas 
proceeding, which bore the indicia of the state's facilitation of 
Evans' efforts to obtain inculpatory statements from McCleskey. 

Habeas counsel took these facts to mean that there was no 
factual basis for a Massiah claim, for two of the jailors who 
would likely have known such facts, knew of none, the prosecutor, 
who likely would have known such facts as well, knew of none, and 
the prosecutor's file contained no hint of a Massiah violation. 
Counsel's decision to forego any further investigation was 
eminently reasonable in these circumstances. 

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if new, unthought-of evidence should thereafter become available. 

No lawyer who provides zealous representation to a condemned 

client can take that risk. 

Accordingly, each case will now have to consume far more 

resources than are presently available. It is impossible to 

determine what the long-term consequences will be, but 

immediately, drastic changes will have to be made. The number of 

cases in which the resource centers provide assistance will have 

to be reduced severely. The investigative resources and staff 

attorney time that are now available to all volunteer counsel 

will have to be redirected to this reduced number of cases. 

Volunteer counsel to whom the resource centers can no longer 

devote resources will be left without significant support from or 

consultation with the resource centers. These volunteer counsel 

will as a result be forced to ask for heretofore unheard of 

financial assistance from the federal courts.® The principle of 

reasonable attorney judgments about the scope of investigation 

will no longer be exercised, and with its demise, the cost of 

litigating each death penalty habeas case will go up 

exponentially.® 

  

5 This assumes that volunteer counsel will still come 
forward. It is certainly not unimaginable that the pool of 
volunteer lawyers will quickly dry up, however, for the burden of 
representing a death-sentenced person under a strict liability 
performance standard may well demand too much of lawyers who 
provide their services as volunteers, seeking to meet a need 
which 1s universally -- but not constitutionally -- recognized. 

6 In addition to monetary costs, the burden to the 
federal courts in reviewing habeas petitions will increase 
substantially. Notwithstanding ethical constraints and rules 

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In this period of history, when the Powell Commission, the 

ABA Task Force on Death Penalty Habeas Corpus, the Supreme Court, 

the Congress, this Cotitt and other federal courts are acutely 

concerned about chaos, unfairness, and inefficiency in capital 

habeas corpus proceedings, the new McCleskey rule -- even if it 
  

had a thread of support in the law -- would be profoundly 

inappropriate because of its extraordinary capacity to magnify 

many-fold the chaos, unfairness, and inefficiency that now exists 

in capital habeas corpus proceedings. 

II. 

THE PANEL OPINION ALSO ENCOURAGES THE STATE 

TO CONCEAL ITS VIOLATIONS OF A CAPITAL 

DEFENDANT'S CONSTITUTIONAL RIGHTS AND 

UNDERMINES THE WILL TO COMPLY VOLUNTARILY 
WITH CONSTITUTIONAL MANDATES. 

Wholly missing from the panel's calculus in McCleskey is any 
  

concern for the state's misconduct in violating, then concealing 

the violation of, Mr. McCleskey's Sixth Amendment rights. The 

entire burden of McCleskey's failure to find the facts 

supporting his Sixth Amendment claim is placed upon him through 

the strict liability standard of performance for habeas counsel. 

  

like Fed. R. Civ. Proc. 11, the McCleskey rule will no longer 
permit non-record-evidence claims, once identified, to be 
abandoned. Even though counsel's investigation may not have 
revealed substantiating facts, no counsel could feel comfortable, 
under a strict liability standard, deciding that no new 
substantiating facts would arise or be revealed in the future. 
Thus, even claims which counsel could not certify are "well 
grounded in fact," Rule 11, would nevertheless have to be raised 
in federal habeas corpus proceedings. The burden to the courts, 
as well as the impossible ethical dilemma imposed on habeas 
counsel, are thus additional critical components of the "cost" 
equation which must be accounted for under the panel's rule. 

  

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The result of this one-sided burdening process will be to 

undermine the will of the states to comply voluntarily with 

constitutional mandates and to encourage the states to conceal 

violations of capital defendants' constitutional rights. 

Like all other constitutional principles regulating the 

conduct of state authorities, those established to protect the 

rights of criminal defendants are heavily dependent upon 

voluntary compliance by the state's police officers and 

prosecutors. Investigating officers, for example, are expected 

to obey the rule of Massiah v. United States; if they do not, 
  

state prosecutors are expected not to offer the resulting 

confessions in evidence; and if they are offered, the 

prosecutors are at least expected to disclose the possible Sixth 

Amendment violation through which they were obtained. To 

paraphrase Justice Harlan in Mackey v. United States, 401 U.S. 
  

667, 691 (1971) (separate opinion of Harlan, J.), "[n]o one, not 

criminal defendants, not the judicial system, not society as a 

whole is benefitted" by undermining these expectations. It iis 

the same expectations that underlie the duty of the prosecutor 

to depart from a purely adversarial role and disclose any 

evidence that is favorable to the defense, 

for the prosecutor's role transcends that of 
an adversary: he 'is the representative not 
of an ordinary party to a controversy, but of 
a sovereignty . . . whose interest . . . in 
a criminal prosecution is not that it shall 
win a case, but that justice shall be done. 

United States wv. Bagley, 473 U.S. 667, 675 (1985) (quoting Berger 
  

v. United States, 295 U.S. 78, 383 (1935)). 
  

 



  

The expectations that the police and the prosecutors will 

voluntarily honor the constitutional rights of criminal 

defendants -- and in the process serve the higher goal of justice 

-- will be seriously undermined if the McCleskey rule is allowed 
  

to stand. The McCleskey rule will have this effect because it 
  

insulates the police and the prosecutor from the adverse 

consequences of violating a defendant's rights. It allows the 

police and prosecutor to "get away" with the violation so long as 

it can be concealed through the course of a first federal habeas 

proceeding. The McCleskey rule places the entire burden of 
  

finding the violation on the petitioner, and if he fails to 

find it in the first habeas proceeding -- even though the chances 

of such failure may have been increased by the state's continuing 

concealment of the violation -- he will not be heard to complain 

thereafter. Far from encouraging voluntary compliance with the 

Constitution, the McCleskey rule thus will provide an incentive 
  

not to comply with it, for it will remove an important sanction 

-- federal habeas corpus relief -- for non-compliance.’ 

  

7 The damage which McCleskey would cause to the equitable 
balance struck by habeas corpus is well illustrated by the facts 
in McCleskey. In the first state habeas proceeding, in which 
McCleskey asserted the Massiah claim, McCleskey's investigative 
efforts were met with the following concealment by the state: 
The state purported to give McCleskey the complete prosecutorial 
file, yet that file did not include the 21-page "transcript" of 
Evans' conversations with McCleskey, which is the document that 
so highly suggested there was a Massiah violation. Further, the 
prosecutor testified in a deposition that, to his knowledge, the 
state had no "informant relationship" with Evans at the time he 
allegedly obtained inculpatory statements from McCleskey. 
Finally, though the officers who were involved in the Massiah 
violation were not interviewed in the initial investigation, when 
they finally testified about the violation, they denied any 

  

  

 



  

The Supreme Court has recognized the risk in such a rule and 

has refused to adopt it in the context of procedural default. 

Thus, where a criminal defendant's failure to raise a claim is 

based on his not knowing the facts which would support the claim, 

his default is forgiven if the state has played a role in 

concealing the facts. In Amadeo v. Zant, for example, where the 
  

petitioner failed to raise a jury composition challenged in part 

because he did not know of a prosecutor's memorandum directing 

the underrepresentation of blacks and women, the Court held: 

If the District Attorney's memorandum was not 
reasonably discoverable because it was 
concealed by Putnam County officials, and if 
that concealment . . . was the reason for 
the failure of petitioner's lawyers to raise 
the jury challenge in the trial court, then 
petitioner established ample cause to excuse 
his procedural default under this Court's 
precedent. 

100 L.Ed.2d at 260. 

The Court recognized in Amadeo what the panel failed to 

recognize here: if the prosecution plays a role in making the 

discovery of a constitutional violation "'impracticable'" after 

"reasonable" investigative efforts by defense counsel, the 

prosecutor -- not the defendant -- must bear the burden of the 
    

defendant's previous default. If the delicate balance that makes 

our constitutionally-guided system work on a day-to-day basis is 

to be maintained, the same rule must prevail in successive habeas 

corpus proceedings. 

  

knowledge of it. It is hard to imagine what else the state could 
have done to cover its tracks. 

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