Joint Appendix
Public Court Documents
July 4, 1990
143 pages
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Case Files, McCleskey Legal Records. Joint Appendix, 1990. fa3c6fe3-62a7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/311e6214-3f7d-457d-9103-991acdb9bb1c/joint-appendix. Accessed October 09, 2025.
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No. 89-7024
In The
Supreme Court of the United States
October Term, 1990
ob.
2.
WARREN McCLESKEY,
Petitioner,
VS.
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification Center,
Respondent.
o
v
On Writ Of Certiorari To The United States
Court Of Appeals For The Eleventh Circuit
JOINT APPENDIX
rN
v
Joun CHARLES BOGER* Mary BETH WESTMORELAND*
School of Law, CB #3380 Assistant Attorney General
Van Hecke-Wettach Hall 132 State Judicial Building
University of North Carolina 40 Capitol Square, S.W.
Chapel Hill, North Carolina Atlanta, Georgia 30334
27599 (404) 656-3349
(919) 962-5106 Counsel for Respondent
Counsel for Petitioner
*Counsel of Record
PETITION FOR CERTIORARI FILED MARCH 23, 1990
CERTIORARI GRANTED JUNE 4, 1990
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Docket Entries
McCleskey v. Zant, United States District Court
for the Northern District of Georgia
Pretrial Motion
Superior Court of Fulton County, Georgia —
filed September 25, 1978
Order Of
Superior Court of Fulton County, Georgia -
entered September 27, 1978
Transcript Excerpts
Superior Court of Fulton County, Georgia -
commenced October 9, 1978
Pleading Excerpts
Petition for Writ of Habeas Corpus, Superior
Court of Butts County — filed January 5, 1981 ....
Pleading Excerpts
Amendment to Petition for Writ of Habeas
Corpus, Superior Court of Butts County - filed
January 15, 1981
Transcript Excerpts
State Habeas Corpus Hearing, Superior Court of
Butts County, Georgia, January 30, 1981
Deposition Excerpts
State Habeas Corpus Proceedings, Superior
Court of Butts County, Georgia, February 16,
1981
ii
TABLE OF CONTENTS - Continued
Letter
State Habeas Corpus Proceedings, Superior
Court of Butts County, Georgia — dated, Febru-
ary 17, 1981. (Filed as an exhibit in the United
States District Court for the Northern District of
Georgia). ....c.oicv iin visser ras ns
Affidavit
Filed as an exhibit in the United States District
Court for the Northern District of Georgia —
JULY 8, J087 1. corinne
Transcript Excerpts
Federal habeas corpus hearing, United States
District Court for the Northern District of Geor-
gia=Tuly B 1987 .......c.oconincicmminisinvis
Order Of
United States District Court for the Northern
District of Georgia, Atlanta Division — entered
December 23, 1987
Judgment From
United States District Court for the Northern
District of Georgia, Atlanta Division — entered
January 15, 1988. .......c.ocii iin sii ce
Order Of
United States District Court for the Northern
District of Georgia, Atlanta Division — entered
January 16,1989. ......c...-..... Lin Jal
Opinion Of
United States Court of Appeals for the Eleventh
Circuit — filed November 22, 1989
Order Of
Supreme Court of the United States granting
certiorari and leave to proceed in forma pau-
peris, June 4, 1990
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Page
RELEVANT DOCKET ENTRIES
U.S. District Court
U.S. District Court for the Northern
District of Georgia (Atlanta)
7/7/87 PETITION for writ of habeas corpus with
request, to proceed in forma pauperis with
ORDER by Judge J. O. Forrester GRANTING
request.
7/7/87 MOTION by petitioner Warren McCleskey for
discovery with attachments.
7/7/87 MOTION by petitioner Warren McCleskey for
stay of execution with attachments.
7/8/87 (yrm)
7/8/87 Response by respondent Ralph M. Kemp to
petition for Writ of Habeas corpus with brief
in support.
7/8/87 RESPONSE by respondent Ralph M. Kemp
motion for discovery by Warren McCleskey.
7/8/87 SUBMITTED to Judge J. O. Forrester on motion
for stay of execution by Warren McCleskey,
motion for discovery by Warren McCleskey,
order, petition for writ of habeas corpus.
7/8/87 Affidavit of John Boger & Robert Stroup filed.
7/8/87 HEARING held on petition for writ of habeas
corpus before Judge J. O. Forrester. Affidavits
of John C. Boger & Robert H. Stroup filed.
Order directing respondent to produce peti-
tioner for hrg. filed (executed by state) * * * R.
Stroup, R. Parker, C. Hamilton & W. Harris
sworn & testified. Pltf. exhs 3,4,5,6,7,8,9
ADMITTED.
* * *
7/9/87 HEARING continued on petition for writ of
habeas corpus. Pltf’s exh 10 ADMITTED.
7/10/87
8/5/87
8/10/87
8/10/87
8/17/87
12/23/87
12/23/87
1/15/88
1/15/88
2
Court verbally stayed the execution of peti-
tioner set for 7/14/87 pending further eviden-
tiary hrg to be held the first week in August.
ORDER GRANTING motion for stay of execu-
tion McCleskey.
* * *
MOTION by petitioner Warren McCleskey to
prohibit recall of witnesses with brief in sup-
port.
Evidentiary hearing resumed from July 9,
1987.
RESPONSE by respondent Ralph M. Kemp in
opposition to motion to prohibit recall of wit-
nesses by Warren McCleskey.
ORDER Federal Public Defender Program,
Inc. is appointed to represent plft. (sic) by
Judge J. O. Forrester.
* * *
ORDER GRANTING IN PART AND DENY-
ING IN PART petition for writ of habeas
corpus (see order) DENYING motion for dis-
covery by Warren McCleskey GRANTING
motion to exceed page limit by Warren
McCleskey.
JUDGMENT ENTERED for petitioner Warren
~McCleskey against respondent, Ralph M.
Kemp, Warden directing the respondent to re-
try petitioner within 120 days from receipt of
the 12/13/87 nunc pro tunc for 12/23/87.
* * *
NOTICE OF APPEAL from order by respon-
dent Ralph M. Kemp.
MOTION by respondent Ralph M. Kemp for
stay of execution with brief in support.
1/21/88
1/27/88
2/3/88
3/8/88
3/9/88
5/6/88
5/13/88
5/23/88
6/3/88
6/17/88
NOTICE OF CROSS-APPEAL by petitioner
Warren McCleskey.
Certificate of probable cause requested by
petitioner with memo in support and pro-
posed order.
SUBMITTED to Judge J. O. Forrester on prob-
able cause certificate/certification and
MOTION for stay of judgment.
ORDER DIRECTING that there exists proba-
ble cause to appeal by Judge J. O. Forrester
filed.
ORDER GRANTING motion for stay of execu-
tion by Ralph M. Kemp staying judgment
until the issuance of the mandate of the 11th
Circuit Court of Appeals and until that man-
date is made the judgment of this court,
thereby completing the appellate process by
Judge J. O. Forrester.
* * *
MOTION by respondent Ralph M. Kemp for
relief from final judgment pursuant to Rule
60(B) with brief in support.
RESPONSE by petitioner Warren McCleskey
to motion for relief from final judgment pur-
suant to Rule 60(B) by Ralph M. Kemp.
SUBMITTED to Judge J. O. Forrester on
motion for relief from final judgment pur-
suant to Rule 60(B) by Ralph M. Kemp.
Application for leave of absence of James M.
Nabrit III from 7/7/88 thru 7/28/88.
ORDER ALLOWING extension of discovery
until 8/1/88 on the two issues of due dili-
gence and of Officer (sic) Evans’ knowledge in
reference to the respondent’s motion for relief
from final judgment pursuant to Rule 60(b);
8/2/88
8/11/88
8/11/88
8/25/88
1/10/89
1/30/89
response time for paper discovery is short-
ened to 15 days; if a dispute arises during
discovery, parties are DIRECTED to seek a
conference by Judge J. O. Forrester.
SUPPLEMENTAL BRIEF by respondent Ralph
M. Kemp motion for relief from final judg-
ment pursuant to Rule 60(B) by Ralph M.
Kemp.
Reply brief in response to respondent’s sup-
plement to motion for relief from final judg-
ment uner (sic) Rule 60(b) by petitioner
Warren McCleskey.
Amendment (2nd) motion to expand the
record by petitioner Warren McCleskey.
SUBMITTED to Judge J. O. Forrester on
motion to expand the record by Warren
McCleskey.
ORDER GRANTING motion to expand the
record by Warren McCleskey and respon-
dent’s motion for relief from final judgment is
DENIED by Judge J. O. Forrester.
NOTICE OF APPEAL from order by respon-
dent Ralph M. Kemp.
PRETRIAL MOTION -
Superior Court Fulton Co. GA.
(Crim. No. A-40553)
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
STATE OF GEORGIA )
) INDICTMENT
versus ) NO. A-40553
WARREN MCCLESKY, et al )
MOTION FOR INFORMATION NECESSARY TO
RECEIVE A FAIR TRIAL
Now Comes the defendant in the above-stated case,
without waiving formal arraignment and moves the
Court to require the State through the District Attorney of
this Circuit to produce at the trial of the above-styled
case, and at any and all non-jury hearings of the above-
styled case, the following documents, pictures and ar-
ticles:
1
Copies of all reports and memoranda connected with
the said charge against the named defendant.
22.
All written statements of witnesses in the possession
of the prosecutor relating to the charges against the
named defendant in the above-styled case, as well as all
statements relating to any other defendants in the above-
styled case.
le
Statements of all persons including memoranda,
summaries recordings of such statements of any person,
made to any law enforcement officer or the investigative
staff of any prosecute (sic) in any way connected with the
above-styled case.
-8-
All written or recorded statements and all summaries
or memoranda of any oral or written statements made by
the named defendant and all other defendants named in
the above-styled case.
* * *
In support of his motion, defendant states:
The aforesaid documents are in the possession of the
State are available to the District Attorney.
All of said documents, pictures and articles are rele-
vant, significant and constitute substantial material evi-
dence and will be useful to and favorable to the named
defendant as evidence upon his trial.
The named defendant cannot safely go to trial in this
case without the production of said document and in
their absence will be denied due process of law as guar-
anteed by Article I, Section Paragraph III, of the Constitu-
tion of the State of Georgia (Ga. Code §2-103) and the
Fourteenth Amendment to the Constitution of the United
States.
Without the production of the documents referred
above, the defendant’s counsel will not be able to effec-
tively represent him in the above-styled case; and thus
the defendant will be denied the right of counsel which is
guaranteed to him under the provisi (sic) of Article I,
Section I, Paragraph V of the Georgia Constitution (Ga.
Code §2-105) and the Sixth and Fourteenth Amendment
to the United States Constitution.
WHEREFORE, the defendant prays:
(a) That the State be required to produce all docu-
ments and other evidence referred to above.
(b) Without waiving his right to have his counsel
examine siad (sic) documents, pictures and articles, if the
Court does not perr (sic) this to be done, that the Court
conduct an in camera examination of said documents,
pictures and articles and his counsel be permitted to see
and copy of (sic) reproduce any of said documents, pic-
tures and articles favorable to the named defendant as to
the question of guilt or punishment or for the purpose of
impeaching any of the witnesses to be called by the State
in the trial of the named defendant.
(c) That if any part of said documentary evidence
isn’t made available to the named defendant prior to the
commencement of his trial, then without waiving his
right to the production of said evidence prior to his trial,
he respectfully moves the Court for an order directing the
District Attorney to produce all statement and other
impeaching evidence of each witness testifying for the
State at the conclusion of the direct examination of that
particular witness and in sufficient time so that said
material will be available to counsel for defendant to use
while cross-examining the particular witness.
(d) Without in any way waiving the right of this
defendant to have his counsel examine said documents,
pictures, and article prior to trial and to have his counsel
examine all of said documents relating to the impeach-
ment of each witness before cross examining that particu-
lar witness, this defendant without waiving his right to
have said material produced earlier, moves the Court for
an order directing the District Attorney to produce all
such documents and evidence and to submit the same to
his counsel at the close of the State’s evidence.
Respectfully submitted,
SILVER, ZEVIN, SEWELL &
TURNER
JOHN M. TURNER, II
Attorney for Defendant
ORDER
Superior Court, Fulton Co. GA.
(Crim. No. A-40553)
(Caption Omitted In Printing)
ORDER
The above-captioned matter came before this Court
on September 25, 1978.
After conducting an in camera inspection of certain
items of evidence in the State’s possession, the Court
finds that although the documents might become material
for rebuttal at trial, they are not now subject to discovery.
It is further ordered that counsel may, at the proper
time, ask the Court for a further ruling if the circum-
stances make it appropriate to do so.
IT IS SO ORDERED.
This 27 day of September, 1978.
/s/ Sam Phillips McKenzie
SAM PHILLIPS McKENZIE
JUDGE, SUPERIOR COURT
ATLANTA JUDICIAL CIRCUIT
iat A Yh a ea Ni a
10
TRIAL TRANSCRIPT
Superior Ct., Fulton Co. Ga.
(Crim. No. A-40553)
October 9, 1978
(Caption Omitted In Printing)
* * *
[BY DEFENSE ATTORNEY JOHN TURNER]:
[631] Q You say you have seen Mr. McClesky with a
silver pistol before, is that right?
A [BY MARY JENKINS]: Yes.
Q Have you ever seen anybody else with that gun?
A No.
Q Do you recall telling the police that you saw Mr.
Wright with that gun?
A Well, I always saw Mr. McClesky with the gun
when he was in my house.
Q Okay. Let me give you what is part of your state-
ment and ask you to look at these questions and answers
and see if you gave them to the police. Would you do so,
please?
A Here you go.
Q Is that your signature at the bottom of that page?
A Yes, it is.
Q Okay. What day did you give this statement to
the police?
A The 5th and the 30th.
11
Q Okay. So you give it on May 30th, is that right?
A Yes.
Q Okay. Having read this, does that refesh your
recollection now?
A I don’t remember.
* * *
[632] Q Okay. The next question is, “Mrs. Jenkins,
have you seen Ben Wright with any other guns? Answer.
He took my gun, which is a .32 caliber blue steel revolver,
and I also seen him with a .38 caliber silver in color with
long barrel.” Do you recall that question and answer?
A Yes.
Q Tell us about that. What circumstances and when
did you see Mr. Wright with that silver colored gun?
A Isaw it in my house and he had it in his pocket.
Who had it?
Ben.
When did you see this?
It was before May the 13th.
D
i
y
»
LO
2»
0
How much before May the 13th?
A About a week.
[633] Q Okay. When was the last time you saw the
gun at your house?
A The last time I saw the gun at my house was
before May the 13th.
12
Q Well, that is what I am saying. How much before
May the 13th if you can pinpoint it, a day or a -
A About a week.
Q Okay. Now, the next question, “Have you ever
seen Warren McClesky with a gun other than the shotgun
he removed from your house on May the 13th, 1978?
Answer: He totes a .45.” Do you recall that?
A A 38. It looked like a .45 but it was a .38.
Q .38 what?
A Silver pistol.
Q Okay. I though you said you knew guns.
A That short, fat gun, it looked like a .45.
Q Well, what I am saying is — are you saying your
answer here is incomplete then?
A Yes.
Q Okay. So you are saying there should have been
more onto this than what you said?
A No.
Q Well, why didn’t you tell the police that you had
seen him with that silver gun before?
A Tell the police I seen -
[634] Q Mr. McClesky — why didn’t you tell the
police in the statement that you were giving them that
you had seen Mr. McClesky with the silver gun?
A I did see Mr. McClesky with the silver gun.
13
Q They asked you that question?
A Yes.
Q And you said the only thing you had ever seen
him with was a .45, didn’t you?
A It was a .38. Another one was a .45 and a shotgun
and a .22 caliber pistol, long-range.
Q Okay. Why didn’t you tell them all that when
they asked?
A I said I lied.
Q Oh, you were lying when you said Mr. McClesky
only carried a .45?
A 1said I lied to them at first. I saw McClesky with
a long .38, plus I saw that big gun that looked like a .45.
Q Okay. Well, are you saying that you were lying
when you told the police that the only thing he toted was
a .45, that is what I am trying to understand?
A Ithough it was his gun, but it was Burney’s gun.
Q How did you find that out?
A Well, between his sisters.
Q Well, at the time you gave the statement you said
that this statement was true and correct, didn’t you?
[635] A Yes.
Q Did you ever tell the police otherwise?
A No.
14
Q Before you talked to the prosecutor in this case
you had never told the police that you saw Mr. McClesky
with a silver gun, had you?
A 1 told the police I had seen him with one.
Q When?
A Before this had happened. I told him I seen him
with it in a brown bag.
Q Okay. Why isn’t that in any one of the three or
four page statement you gave the police on the 30th?
A I don’t know. It’s supposed to be in there.
Q You did read the statement before you signed it,
didn’t you?
A Yes.
Q Okay. Has there been any mention of payment of
a reward in this case to you for you testimony?
A Yes.
Q How much?
Q They said there was a thousand dollar reward.
MR. TURNER: No further questions.
* * *
[680] RECROSS-EXAMINATION
BY MR. TURNER:
Q Mr. Wright, how many crimes have you been
convicted for all total?
15
A [BEN WRIGHT] I can’t count them.
Q Why not?
A Well, because there’s quite a few.
[681] Q So many you can’t remember, right?
A Yes, sir.
Q You can’t even remember how much time you
have served altogether, can you?
No, sir, I cannot.
It’s been that much, hasn’t it?
Quite a bit.
Po
>»
R
L
.
»
Do you want to go back to jail now?
A I will have to. I am guilty of this crime, I have to
go back to jail.
Q Going back to jail is better than facing the death
penalty, isn’t it?
A Well, naturally, yes, it is.
Q Now, you used the name James Edward Smith in
connection with what?
A In connection with an escape I was on at the
chain-gang, it was an alias. If I was apprehended by the
law, it was a possibility I could get out before they knew
who I was, and Ben Wright would have been a sure
giveaway and I changed my name.
Q When you were arrested in Pine Bluff you did not
have a silver gun?
16
A I think I did, a .38 gun.
Q What happened to it?
A I think the authorities now have the gun.
[682] Q Is that the only silver. 38 you have ever
had?
A The only one?
Q Yes, sir.
A Yes, sir, that is the only one I ever owned. I have
had a .38 silver one in my possession. Matter of fact, I
have kept the same gun Warren McClesky killed the
officer with. I have kept it for a week or two.
Q When did you give that gun to McClesky then?
A I gave that gun to McClesky on several occasions.
Q Such as?
A Like he have came up and got it a couple of
times. He have came and got it on three or four different
occasions, you know, and brought it back.
* * *
[830] Q [BY ASSISTANT DISTRICT ATTORNEY
RUSSELL PARKER]: Specifically, Mr. McClesky, have you
ever had a conversation when you were in that jail cell,
one north fifteen, either with Mr. Dupree, who was over
above you, or with the man who was in the cell next to
you, stating that you shot the police officer?
A [BY WARREN McCLESKEY]: No, sir, I have not.
17
MR. TURNER [DEFENSE ATTORNEY]: Your
Honor, before we go any further, could we approach the
Bench for a minute, please?
THE COURT: Yes, sir.
(Whereupon, the following discussion was had
between Court and counsel at the Bench, out of the
hearing of the jury.)
MR. TURNER: Your Honor, I think that from
the direction of things from what Mr. Parker is saying it
appears that he must have some other statements from
the defendant. I asked for all written and oral statements
in my pre-trial motions. If he has something he hasn't
furnished me, I would object to getting into it now.
THE COURT: Well, he has a statement that was
furnished to the Court but it doesn’t help your client.
MR. TURNER: I am not dealing with that part
of it. I am saying I asked him -
[831] MR. PARKER: It’s not exculpatory.
THE COURT: You are not even entitled to this
one.
MR. TURNER: I am entitled to all statements he
made. That is what the motion was filed about.
THE COURT: This is not a statement of the
defendant.
MR. TURNER: We are not talking about a state-
ment of the defendant.
THE COURT: I don’t know that we are talking
about any written statement.
18
MR. TURNER: I am saying I filed for oral and
written statements. I asked for all statements of the
defendant.
THE COURT: Let the record show I wrote you
and made it of record. It is not admissible and what he is
doing is in the Court’s opinion proper.
MR. PARKER: I would like to place in the
record at this time, if Mr. Turner doesn’t mind, that I have
furnished him complete copies of everything except what
we are about to get into, plus some Grand Jury testimony,
and he has had use of it during this trial.
MR. TURNER: 1 don’t object or argue about
that, I am simply saying -
MR. PARKER: 1 want the record to reflect that.
MR. TURNER: Iam saying he didn’t furnish me
with everything, and that is one of the requirements of
the law in terms of furnishing all statements that a defen-
dant makes.
[832] THE COURT: Well, that will be a defense
that you can use in the Appellate Courts if he has vio-
lated the law.
MR. TURNER: I would object at this time on
that basis.
THE COURT: I will let the record show he has
not violated the law, in my opinion.
MR. TURNER: I will let the record show he has
furnished me everything, and for the first time here today
at trial he may have some oral or written statement from
19
my client that he has never furnished me. I would object
to any introduction or admission of those statements.
THE COURT: I will overrule the objection.
i ib in i
20
PETITION FOR WRIT OF HABEAS CORPUS
Superior Court, Butts Co. Ga. (H.C. No. 4909)
WARREN MCCLESKEY,
Petitioner, H.C. No. 4909
V.
WALTER ZANT, Warden,
Georgia Diagonistic and
Classification Center,
Respondent.
I. INTRODUCTION
(1) This is a petition for a writ of habeas corpus to
relieve the petitioner of restraint under a conviction and
sentence of death imposed upon him by the State of
Georgia in violation of his rights under the Constitution
of the United States and of the State of Georgia.
* * *
IV. Respects in Which Petitioner’s
Rights Were Violated
* * *
(20) The State’s failure to disclose its arrangement
made with a police agent or informer, who testified at
trial and who was not prosecuted for an outstanding
escape charge because of his cooperation and testimony,
violated petitioner’s rights guaranteed by the due process
clause of the Fourteenth Amendment, and Sections 2-101
of the 1976 Constitution of the State of Georgia.
21
(21) The deliberate withholding from petitioner of a
statement by defendant, allegedly made to a government
agent or informer while petitioner was incarcarated and
awaiting trial, denied petitioner due process rights guar-
anteed by the due process clause of the Fourteenth
Amendment to the United States Constitution and Sec-
tion 2-101 of the 1976 Constitution of the State of Georgia.
* * *
Respectfully Submitted,
/s/ Robert H. Strou
ROBERT H. STROUP
1515 Healey Building
57 Forsyth St. N.W.
Atlanta, Georgia 30303
JACK GREENBERG
JAMES M. NABRIT III
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
ATTORNEYS FOR THE
PETITIONER
22
AMENDMENT TO PETITION FOR WRIT
OF HABEAS CORPUS
Superior Court Of Butts Co. Ga. (H.C. No. 4909)
(Caption Omitted In Printing)
Comes now the petitioner, WARREN McCLESKEY,
and files this Amendment to his Petition for Writ of
Habeas Corpus. The following additional paragraphs are
added to the petitioner's claims:
(35) The introduction into evidence of the peti-
tioner’s statements to an informer, elicited in a situation
created to induce the petitioner to make incriminating
statements without the assistance of counsel, violated the
petitioner’s right to counsel under the Sixth Amendment
to the Constitution of the United States and Section 2-111
of the 1976 Constitution of the State of Georgia.
(36) Petitioner was convicted of the charges of mur-
der and two counts of armed robbery without proof of his
guilt beyond a reasonable doubt, in contravention of the
due process clause of the Fourteenth Amendment and
Section 2-101 of the 1976 Constitution of the State of
Georgia.
Respectfully submitted,
/s/ Robert H. Strou
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
ATTORNEY FOR
PETITIONER
23
STATE HABEAS CORPUS TRANSCRIPT
WARREN McCLESKEY vs. WALTER ZANT
Superior Ct., Butts Co. Ga. (No. 4909)
January 30, 1981
(Caption Omitted In Printing)
[BY TRIAL DEFENSE ATTORNEY JOHN TURNER]:
. . . In addition, I filed a motion asking for all oral and
written statements within the possession and control of
the Prosecutor. So I did not have any forewarning that
Mr. Evans was going to testify to some statement that he
allegedly overheard based on those circumstances.
Q. [BY ROBERT STROUP]: All right. Just so the
record is clear, what — briefly what did Mr. Evans testify
to at the trial?
THE COURT: Mr. Stroup, the record will
indicate what he said. That is far more reliable
than what he can remember.
MR. STROUP: All right. Your Honor, I
basically was — rather than for the record which
is in the record, I will give you a brief introduc-
tion about it.
THE COURT: Well, I think that the ques-
tion should be why did they not give you a copy
of the statement he made if you made a motion |
for it.
THE WITNESS: Well, I can’t answer that
question even up to this point in time. That was
one of the issues that I raised on appeal, the fact
that I was never given any indication that such a
statement existed.
THE COURT: Do you mean that you
talked to the Prosecutor six times and you two
never discussed that at all?
24
THE WITNESS: We went over the motions,
all of the motions and the only thing that he said
to me about his file was that there were two
things that weren't 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
that he didn’t disclose what it was or who the
person was in that context.
They clearly understood and they knew that
the motion had been filed. So my thinking on
the matter was that I had everything, partic-
ularly relating to the statements of the Defen-
dant.
25
DEPOSITION OF RUSSELL PARKER
Superior Ct., Butts Co. Ga. (No. 4909)
February 16, 1981
(Caption Omitted In Printing)
[81 Q. [BY ROBERT STROUP]: Okay. Now, I want to
direct your attention to a statement from Offie Evans that
was introduced at Warren McCleskey’s trial and ask you
a few questions about that statement. How was it that
you came to learn that Offie Eavns (sic) might have some
testimony that you would want to lose in the Warren
McCleskey trial?
A. [BY ASSISTANT DISTRICT ATTORNEY
RUSSELL PARKER]: Okay. When you referred to a state-
ment, Offie Evans gave his statement but it was not
introduced at the trial. It was part of that matter that was
made in camera inspection by the judge prior to trial.
Q. All right. Let me make clear what my question
was, then. Offie Evans did in fact give testimony at the
trial — let me rephrase it. When did you learn that Offie
Evans had testimony that you might want to use at trial?
A. TI believe I was first notified by Detective Jowers
or Detective Harris, homicide detectives, who apparently
had been contacted by a deputy, C. K. Hamilton. I don’t
recall at this point whether Jowers and Harris went out to
the jail to talk to Offie and that involved me or whether
they called me [9] over to the Atlanta Police Department
and we talked to Evans there. I know I did talk to Evans
and I did talk to him at the Atlanta Police Department.
Q. How about Detective Dorsey? Do you recall
Detective Dorsey being involved at all?
26
A. Dorsey was involved in the investigation. At
what point, I don’t remember.
Q. All right. How about specifically with respect to
testimony of Offie Evans? Do you recall Dorsey having
any role in developing the testimony of Evans?
A. At this point I don’t know if Dorsey had any role
in it. The only thing I remember really is that Deputy
Hamilton, Detective Jowers and Harris.
Q. Did you, yourself, have any prior dealings with
Offie Evans prior to his becoming involved in the Frank
Schlatt case?
A. No, sir, I didn’t know Offie Evans prior to that
time.
Q. Okay. Were you aware at the time of the trial of
any understandings between Evans and any Atlanta
police department detectives regarding favorable recom-
mendation to be made on his federal escape charge if he
would cooperate with this matter?
A. No, sir.
Q. Let me ask the question another way to make
sure we are clear. Are you today aware of any under-
standing between [10] any Atlanta police department
detectives and Offie Evans?
A. No, sir, I'm not aware of any. I understood that
he was not prosecuted for the escape but I understand he
was placed back in the federal penitentiary.
Q. Okay. Did you, yourself, after the Warren
McCleskey trial, contact any FBI agents to discuss with
them the matter of a pending escape charge?
27
A. I have talked to several FBI agents about the
case. Only one time did it involve Offie Evans. And that
was after all the trials were completed. And I believe it
was in regards to segregating him in some way out at the
federal pen for his own protection.
* * *
[14] REDIRECT EXAMINATION
BY MR. DUMICH [Assistant Attorney General]:
Q. I just have a few questions. Mr. Parker, in
regards to Offie Evans’s testimony at trial, Mr.
McCleskey’s trial, was there any deal whatsoever made
with Mr. Evans in exchange for his testimony at the trial?
A. [BY RUSSELL PARKER]: I'm not aware of any. I
don’t know of any deal.
Q. What about at the Burney trial? Was there any-
thing, was there any indication given by you to Mr. Evans
prior to his testimony in the Burney trial that you would
do anything for him or try to do, try to contact people for
him to try and see that his escape charge wasn’t pros-
ecuted or that he would get a reduction in sentence or
anything along those lines?
A. I have never asked anybody to drop a charge. I
don’t know of Offie ever asking anybody to try and get
the charges dropped for him. I am not surprised that they
are dropped. Obviously the police officer was killed and
the guy testified twice for the state. It doesn’t surprise me
in the least that the charges have been dropped. But the
fact that the charge was dropped doesn’t mean that he
wasn’t punished because he was put back in the federal
pen.
28
Q. Do you have any knowledge that Mr. Evans was
working [15] as an informant for the Atlanta Police or any
police authorities when he was placed in the Fulton
County Jail and when he overheard these coversations
(sic) of Mr. McCleskey?
A. I don’t know of any instance that Offie Evans
had worked for the Atlanta Police Department as an
informant prior to his overhearing conversations at the
Fulton County Jail.
29
LETTER, State Habeas Corpus Proceedings
Superior Court, Butts Co. Ga.
THE DEPARTMENT OF LAW
STATE OF GEORGIA
ATLANTA
30334
February 17, 1981
Mr. Foster Corbin
Certified Court Reporter
1293 Peachtree Street, N. E.
Suite 828
Atlanta, Georgia 30309
Re: Warren McClesky v. Zant, habeas corpus - depo-
sition of Russell Parker.
Dear Foster:
Enclosed is a complete copy of the prosecutor’s file
resulting from the criminal prosecution of Warren
McClesky in Fulton County. As agreed by counsel for
both parties who attended the deposition of Mr. Russell
Parker on February 16, 1981, the enclosed file (including
cover sheet) is to be attached to Mr. Parker’s deposition
as Joint Exhibit A and forwarded along with the deposi-
tion to the Superior Court of Butts County.
If you have any questions concerning the aforesaid,
please contact me at 656-3499.
Sincerely,
/s/ Nicholas G. Dumich
NICHOLAS G. DUMICH
Assistant Attorney General
NGD/cab
CC:
30
Mr. Robert Stroup
Attorney at Law
1515 Healey Building
Atlanta, Georgia 30303
31
FEDERAL HABEAS CORPUS HEARING
(U.S. District Court, N.D.Ga.) (No. C-87-1517-A)
PETITIONER’S EXHIBIT #2
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION
VS. NO.
RALPH KEMP, ;
Respondent.
AFFIDAVIT OF ROBERT H. STROUP
STATE OF GEORGIA )
)
COUNTY OF FULTON )
Personally before the undersigned officer duly autho-
rized by law to administer oaths appeared ROBERT H.
STROUP, who, after being duly sworn, deposes and states
as follows:
1. My name is ROBERT H. STROUP. I am more than
eighteen years of age, and am under no legal disability of
any kind. This affidavit is given freely and voluntarily,
without coercion of any kind. I understand it will be used
in court proceedings on behalf of Warren McCleskey.
2. I was initially retained to represent Warren
McCleskey in April, 1980. At that time, a petition for writ
of certiorari to the Georgia Supreme Court was due to be
filed in the United States Supreme Court within days of
32
my retention, and my first act was to obtain an extension
of time for the filing of that cert petition.
3. Ifiled a petition for certiorari in the United States
Supreme Court in June, 1980. One of the issues I raised on
McCleskey’s behalf was a Brady claim — that the State
had wrongfully withheld McCleskey’s oral statement to
Evans. In preparation for bringing this claim I reviewed
the Georgia Supreme Court decision as well as the trial
transcript. I did not understand that there was a written
statement from Offie Evans. Like the Georgia Supreme
Court, I understood that there was an oral statement, and
that it had been introduced in its entirety through Evans’s
testimony at trial.
4. The next major development related to the case
was the denial of cert by the United States Supreme Court
in October, 1980, and the setting of a new execution date.
On December 19, 1980, McCleskey appeared in Fulton
Superior Court and his execution was scheduled for Janu-
ary 8, 1981.
5. In December, 1980 and January, 1981, I did exten-
sive research and investigation relative to the habeas
corpus petition that was filed on McCleskey’s behalf in
Butts Superior Court on January 5, 1981. More than 20
substantive claims were raised in the petition; several of
them required investigation outside of the trial transcript.
In January, 1981, I interviewed, in person or by phone,
more than 30 persons relative to these claims.
Among the facts which I sought to develop were the
facts surrounding Evans’s involvement as a witness at
McCleskey’s trial. At no time during the state habeas
process did I learn of the existence of a written statement
33
given by Offie Evans prior to McCleskey’s trial. I would
surely have requested that information had it come to my
attention, given my effort to develop the details of
Evans’s relationship with County and City personnel.
6. During the course of the federal habeas hearing, I
sought further discovery of federal officials regarding the
circumstances surrounding Evans’s escape from the fed-
eral halfway house. Again, at no time did it come to my
attention that Evans had given a written statement to
Atlanta police and the Fulton County District Attorney’s
office in August, 1978.
7. After the October, 1986 argument of McCleskey’s
case in the United States Supreme Court, Jack Boger and I
continued to examine possible constitutional claims that
might be raised on Mr. McCleskey’s behalf. One issue to
which our dicussions (sic) returned was the understand-
ing between Offie Gene Evans and Atlanta police detec-
tive Sidney Dorsey, under which Evans expected that
Dorsey would “speak a word” with federal authorities
about his pending federal escape charges in exchange for
his testimony against McCleskey. A majority of the Court
of Appeals had denied relief on this claim, finding that
the understanding between Evans and Dorsey was too
“marginal” or insubstantial to have constituted a “prom-
ise” under Giglio v. United States, and that revelation of
the understanding to McCleskey’s jury would have been
“unlikely [to] . . . have affected the jury’s assessment of
Evans’s credibility.”
8. We were both troubled, however, by the factual
premises of these legal conclusions and we decided that it
could prove useful to speak with Offie Evans to clarify
34
the understanding he had worked out in 1978 with Detec-
tive Dorsey. We also agreed to contact McCleskey’s
jurors, to determine firsthand whether revelation of
Evans’s agreement with Dorsey may have made a differ-
ence in their verdicts.
9. We began in late March of 1987 what proved to
be a long, expensive and fruitless effort to make direct
contact with Offie Evans. Working through the Depart-
ment of Corrections, I determined that Evans was back in
the state penal system, serving a sentence in the Ware
Correctional Institution in Waycross, Georgia. I spoke
with Ware Correctional officials and determined that we
could visit Mr. Evans with his agreement. My co-counsel,
Jack Boger then wrote to Evans, asking permission to
speak with him. When our letter went unanswered, I
spoke again with Ware officials and learned that an
inmate counsellor was available to convey our request to
Evans directly. I spoke with his counsellor, but was again
unable to schedule a meeting.
10. We then learned that Evans was scheduled for
release and was expected to return to Atlanta on May 10,
1987. 1 contact (sic) his sister and requested that she let
me know when Evans arrived in Atlanta. She agreed to
do so. Yet during the week of May 11-15th, I was unable,
despite frequent attempts, to make direct contact with
Evans. Thinking that perhaps a black, rather than white,
attorney might be able to establish some greater amount
of trust with Evans and his family, I asked a young black
attorney, Bryan Stephenson, to attempt to make contact
with Evans. For several weeks Stephenson tried to talk
with Evans, making frequent visits to several of Evans’s
35
relatives at different hours of the day and night. His
efforts were also unsuccessful.
11. Finally, sensing that time was growing short,
Jack Boger and I decided to hire Delaney Bell, a highly-
recommended private investigator, to locate Offie Gene
Evans. Although Mr. Bell (i) checked probation sources -
who informed him that Evans had not shown up for
required probation meetings; (ii) talked with numerous
family and community sources; (iii) checked Atlanta
Police Bureau sources and (iv) “staked out” the locations
where Mr. Evans was said to sleep, he was unable to
locate Evans.
12. As indicated earlier, our purpose in seeking
Offie Gene Evans was to learn more about the under-
standing he had reached in 1978 with State officials, to
strengthen the factual basis for the Giglio claim. During
one telephone conversation with Jack Boger in late May,
1987, we explored other possible sources of information. I
mentioned to him, in passing, the recent success of a
number of Georgia broadcasters in obtaining police
investigative files in the Wayne Williams case.
13. Although I was not otherwise familiar with the
Georgia Open Records Act, and although I had never
heard of its being used successfully to obtain records in
an on-going criminal or habeas proceeding, I agreed that
we might use the apparent victory of the broadcasters in
Napper v. Georgia Television Co., No. 44381 (Georgia
Supreme Court) to request access to the police investiga-
tive file in the Frank Schlatt/Dixie Furniture Store case.
14. Late Friday afternoon, May 29, 1987, I contacted
Mr. Roy Mays, an Assistant City Attorney with whom I
36
had had prior contacts, who suggested that I make a
formal written request to the Atlanta Bureau of Police
Services. He indicated, however, that it was unlikely that
any documents would be produced until the Georgia
Supreme Court acted on the City’s petition for rehearing.
I was advised by Mr. Mays that the City had specifically
requested in its rehearing position that the Supreme
Court reconsider its newly-announced rule that criminal
investigation would be deemed “closed” under the Open
Records Act even if a habeas corpus proceeding was
pending. On Monday, June 1, I hand-delivered a letter to
the Chief of Police, requesting “the opportunity to inspect
and copy all records in the possession and/or control of
the Atlanta Bureau . . . related to the investigation into
the slaying of Officer Frank Schlatt in May, 1978.” (See
Federal Petition, Exhibit Q).
15. On June 4, I was contacted by Deborah Floyd, an
Associate City Attorney, who informed me that the Geor-
gia Supreme Court’s decision on June 3, modifying its
earlier Napper opinion, would have some bearing on
whether any or all documents would be released. She
indicated that preliminarily she had flagged approx-
imately 97 documents as subject to potential privacy con-
cerns under the modified decision of June 3. At her
request, I agreed to a short extension of time.
16. On June 10, I telephoned Roy Mays and
Deborah Floyd and stressed the urgency of my request.
When asked to specify documents I was interested in, I
replied that my first priority was any documents relating
to Offie Gene Evans. Deborah Floyd happened to recall
one such document in the file, and the City agreed to
37
furnish that one document while awaiting further clari-
fication from the Supreme Court in the Napper litigation.
(By that time, the Georgia broadcasters had filed their
own petition for rehearing). At the time the City agreed
to make this “memo” available, I had no idea what the
document was, or what information it contained. It was
in this manner that I came into possession of the August
1, 1978 statement of Offie Gene Evans.
17. Since filing the First Amendment to the state
habeas petition, the State has pointed to a number of
references in the transcript which, the State contends,
should have made the existence of this written statement
obvious to me. Its existence was not obvious to me, prior
to June 10, 1987, when I received a copy from the City
Attorney’s office. Prior to that time, I simply did not
understand that there was a written statement from
Evans.
18. In preparing for both the initial cert petition in
June, 1980, and the initial state habeas petition in January,
1981, I had reviewed the 1037-page transcript of trial. I
had also reviewed the Georgia Supreme Court’s decision
on direct appeal. I was left with the distinct impression
that there was nothing in writing related to Offie Gene
Evans that the State was withholding. This impression
was based, I believe, on the trial court's own reference —
when John Turner was seeking production of additional
documents — that “I don’t know that we are talking about
any written statement.” (Tr., 831). Further, the Georgia
Supreme Court, on direct appeal, upheld the denial of
access to Evans's oral statement without a hint that any
written pre-trial statement by Evans existed. The
Supreme Court explicitly stated that “the evidence
ZR taal
38
[defense counsel] sought to inspect was introduced to the
jury in its entirety.” This was in obvious reference to the
actual oral testimony of Evans at trial, further reinforcing
my impression that there was nothing written that the
State had not produced.
19. The State has also argued that the trial court’s
order of September 27, 1978 should have served notice on
me that there was a written statement. However, that
order makes no reference to the witness Offie Gene Evans
(or any other witness) and I have no recollection of
connecting that September, 1978 order with any witness
statements. My own recollection is that my investigation
indicated that the order related to a test of hair samples
that were taken from each of the co-defendants. I cer-
tainly did not connect that order to Offie Gene Evans.
20. The State also contends that a passing comment
from the Russell Parker, the Assistant District Attorney
who tried the case, made during his deposition taken in
the first state habeas hearing, should have been notice to
me of the existence of a written statement from Evans.
Parker’s comment, at page 8 of the deposition, however,
was not directly responsive to my question, and I thought
he misunderstood my question. I do not believe I actually
understood what he said in response to my question, and
I rephrased the question to make certain that he under-
stood me. When the deposition transcript became avail-
able to me for review, I already had Nick Dumich’s letter
reflecting his understanding that what we were dealing
with was a complete copy of the prosecutor’s file. It
never occurred to me at this state in the proceedings that
there was a written statement from Offie Evans that the
State had not produced.
39
This 8th day of July, 1987.
/s/ Robert H. Strou
ROBERT H. STROUP
Sworn to and subscribed before me,
this 8th day of July, 1987.
/s/ Alice M. Lewis
Notary Public
Notary Public Georgia State at Large
My Commission Expires June 25, 1988
40
FEDERAL HABEAS CORPUS TRANSCRIPT
(U.S. District Court, N.D.Ga.)
(No. C-87-1517-A)
July 8, 1987
(Caption Omitted In Printing)
[28] Robert H. Stroup, called as a witness on behalf of
the petitioner, being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BOGER:
Q. Mr. Stroup, are you presently one of the counsel
for Warren McCleskey, the petitioner in this matter?
A 1am.
Q. When did you first become counsel in this case?
A. April of 1980.
Q. Under what circumstances?
A. I was contacted by Patsy Morris of the ACLU
asking me if I would agree to represent Warren
McCleskey on his post-conviction proceedings.
Q. At that point, what were the stage — what was
the stage [29] of his proceedings?
A. The Georgia Supreme Court decision on direct
appeal had been issued in, I believe, January of 1980, and
there was a cert. petition that needed to be filed to the
U.S. Supreme Court.
41
Q. Did you prepare that petition?
A. Yes, I did.
Q. What kinds of claims did you investigate at that
time with respect to the certiorari petition?
A. My recollection is that the the [sic] claims were
based on claims that were raised on direct appeal by John
Turner.
Q. Do you recall why you so limited yourself?
A. Well, it was my understanding that I was
restricted to the issues that had been raised on direct
appeal.
Q. Restricted in what forum?
A. In the - in the Supreme Court, in the United
States Supreme Court, that the cert. issues needed to be
issues that had been raised on direct appeal to the Geor-
gia Supreme Court.
Q. Did you, in fact, ultimately file that petition?
A. Yes, I did.
Q. Was it granted or denied?
A. It was denied in October of ‘80.
Q. Did you at some point thereafter begin to pre-
pare any further documents or pleadings for Mr.
McCleskey?
A. Right. Actually, some amount of investigation
had gone [30] on while the cert. petition was pending.
Q. Toward what end? What -
42
A. Anticipating a — a habeas corpus proceeding in
state court.
Q. And what was the scope of your investigation,
generally speaking, in preparation for that state habeas
corpus filing?
A. Well, I spoke with — just generally speaking what
did I do to get —
Q. Yes, let's talk generally and then focus more
specifically on the possible Massiah or Henry claims.
A. Well, I spoke with the client several times. I read the
transcript. I am certain I read the transcript of the trial prior
to filing the — the cert. petition in the United States Supreme
Court. I am certain that I reread that transcript again at some
time prior to the filing of the state habeas petition. I sort of,
as I read, I was trying to identify issues, both issues that had
been raised or suggested on directed appeal as well as new
issues that had not been raised and -—
Q. Ultimately, for the record, how many issues did
you present to the state hey (sic) habeas corpus court?
A. In excess of 20. The precise number I can’t say, 22
maybe. I think it depends, in part, on how you count the
paragraphs and whether a particular paragraph counts as
a separate issue or is encompassed in a prior paragraph.
[31] Q. But over 20. The District Court has noted
that Mr. Evans, one of the witnesses at trial against your
client, Warren McCleskey, had been a cellmate at some
point prior to the trial and had ultimately given testi-
mony against Mr. McCleskey. At any point did it occur to
you that there might be a so-called Massiah or Henry
claim to be raised?
43
A. Yes, it did, and it occurred during this investiga-
tion for the state habeas hearing. It was suggested to me
just on the sort of the bear (sic) facts that we had, which
were not many, that is, that he was — that Evans was
assigned to the cell immediately adjacent to Warren
McCleskey. I wondered about the circumstances of that,
particularly as it related - particularly because
McCleskey was in solitary.
Q. Let me ask you, Mr. Stroup, did you take your
suspicion a step further and contact anyone to find out
information about a possible relationship?
A. Yes, I-11 interviewed a number of — I spoke with
a couple of Atlanta Bureau of Police Services Officers, the
people who I knew just from my prior litigation, the
Atlanta Bureau of Police Services, for the purpose of
getting background information on how I might go about
reasonably developing factual evidence in support of a
claim.
Q. Let me just make the record clear. You men-
tioned prior litigation with the Atlanta Bureau of Police
Services. That was unrelated to this case?
[32] A. Yes. I had been for a number of years coun-
sel in a title seven proceeding that involved the Atlanta
Bureau of Police Services.
Q. All right. Did you at any point speak with any
particular officers of the Atlanta Bureau of Police Services
about the relationship between Offie Evans and their
department?
A. TI think my conversations with the Atlanta
Bureau of Police Services personnel was, basically, along
A
the lines of — my recollection at this point is that my
conversations were along the lines of, if Evans is an
informer, how would I — well, no. First of all, given the
practices of the Bureau, is there reason to think that
Evans could be a — an informer planted there in the cell,
and if so, how would I go about developing factual
support for that.
Q. And did you receive any answers to those ques-
tions?
A. Right, I -1, in fact, was told that — that it would
not be surprising for that to have occurred, and the
suggestion was I needed to speak with a number of
people at the — who were deputies at the Fulton County
Jail regarding what information they would have.
Q. Now, these are deputy sheriffs serving under the
sheriff who are at the jail?
A. That was my understanding.
Q. Did you speak with such jailers?
[33] A. I know that I spoke with two people who
were specifically identified to me as people who might
have information, and I had a third name. I am unable to
state at this point whether I ever was able to make contact
with him. I know I made efforts to contact him but
whether — I can’t say at this time whether I actually spoke
with him or not.
Q. So you spoke with at least two. Did either one of
you get — did either one of them give you information
respecting Mr. Evans’ status as an informant?
45
A. No, they - none of them had any information.
Basically, they had no recollection of the circumstances
regarding how Evans came to be assigned to the jail cell
that he was assigned to or of any conversations with the
Atlanta Bureau of Police Services Detectives regarding
Offie Evans’ assignment to that jail cell.
Q. Now, there’s been some representations this
morning that at some point a deposition of Russel Parker,
the assignment district attorney in this case, was taken.
Did you take that deposition?
A. Yes, 1 did.
Q. Do you recall when it was?
A. It was — my recollection is that it was mid Febru-
ary of “81. It was after the hearing that he had in Butts
Superior Court on the first State Habeas Hearing, which I
recall was late January, maybe January 30th.
[34] Q. Was the record - forgive me. Was the record
still open for inclusion of this deposition in the State
Habeas proceeding?
A. Yes. Yes.
Q. During -
A. Mr. Parker was not available to come to the
hearing itself, and the record had been held open for his
deposition.
Q. During that deposition, did you question Mr.
Parker about whether there had been an informant rela-
tionship between Mr. Evans and the Atlanta Bureau of
Police Services or the prosecutor’s office?
46
A. Yes, 1 did.
Q. Do you recall his answers?
A. I-1askedIdon’t recall the specific question, but
there is a question in there about police informer.
Q. If you don’t recall, let me ask you, if I might, if I
can approach the bench, if I can show counsel, my wit-
ness, a copy of the document. Can you identify that
document?
A. Yes. It’s a copy of the deposition of Russell Par-
ker that was taken as part of the proceedings for the first
state habeas.
Q. Does that refresh your recollection about when it
was taken?
A. Right, it says February 16th.
Q. 1981? Let me direct your attention to the bottom
of [35] page 14 of that deposition.
A. Yes, I asked —-
Q. No, who is questioning at this point?
A. The - it’s — actually, it seems to be examination
by Nick Dumich.
Q. And who is Nick Dumich?
A. He's the assistant attorney general who was rep-
resenting the state in this proceeding.
Q. Do you recall the question and the answer now
that you have reviewed these documents?
A. Well, it indicates that Nick asked Russ Parker, do
you have any knowledge that Mr. Evans was working as
47
an informant for the Atlanta police or any police authori-
ties when he was placed in the Fulton County Jail and
when he overheard these conversations of Mr.
McCleskey?
Q. And what was the -
A. And the answer was, I don’t know of any
instance that Offie Evans had worked for the Atlanta
police department as an informant prior to his over
hearing conversations at the Fulton County Jail.
Q. Did you have any reason to doubt Mr. Parker’s
testimony at that point?
A. No.
Q. You indicated that you had - you were sus-
picious and you made some prehearing attempts to
develop evidence. At any [36] point, did you file a claim
based on Massiah?
A. Right. Well - Yeah, I wish I had looked at the
pleadings more recently, but my recollection is that I
amended the state habeas petition to specifically include
a paragraph where I viewed myself as raising a Henry
Claim, a U.S. versus Henry Claim, quite specifically.
Q. At that point, did you have substantive evidence
acquired from your suspicions to support it?
A. Right. At the time all I had was the — the bare
bones kind of evidence that I had. My recollection is I — I
filed the petition and then realized that I still might very
well be able to develop something in support of it and
that I should include it and, therefore, amend it to add
that paragraph.
48
Q. During — during the state habeas proceeding, did
you make any inquiries with respect to Offie Evans on
this issue?
A. I did try to develop on my examination with
Offie Evans the — the matter of the circumstances for his
being placed in solitary confinement and specific ques-
tions about who the arresting officer who his arresting
officer was, in an effort to then further develop the cir-
cumstances surrounding his arrest and placement in soli-
tary.
Q. Were those efforts successful? Did any evidence
come out?
A. No, he had no recollection of who the arresting
officer was, and he had no notion as to the reasons for his
being [37] placed in solitary confinement. At least that’s
what his testimony was.
THE COURT: Was this on deposition or at the
hearing?
THE WITNESS: No, no, that is at the State
habeas hearing.
BY MR. BOGER:
Q. Had you made attempts prior to the state hear-
ing to speak to Mr. Evans?
A. Actually, Yes, I had. Mr. Evans, we had - I had
substantial problems identifying — locating Offie Evans
prior to the State habeas hearing, and I spent much more
time than I would have liked in the — in that time period,
that month or month and a half time period prior to trial,
49
trying to locate him. It turned out, actually, that he was in
the — in Jackson, and -
Q. By that you mean the Georgia Diagnostic Center?
A. Right.
Q. Let me - let me -
A. But on some peculiar circumstance such that he
wasn’t showing up on the State system, and when we — or
when we - when we made inquiry — and I'm sorry, 1
really have forgotten the details, but even though we
were making inquiries, we weren't asking the right ques-
tion or somehow at any rate we kept - you know, we -
they.
Q. Your efforts were unsuccessful?
[38] A. Right.
Q. Let me just summarize your testimony and ask
you one —
A. No, no, I should say — no, no, I did then locate
him like very close to the date of the hearing, six, seven
days, I don’t know, prior to the hearing, actually long
enough in advance that we were able to get a writ issued
by the Butts Superior Court for him to be brought to the
state habeas hearing but not - just — there really wasn’t
enough time, given the press of my - the ordering of my
priorities to get in and interview him prior to the hearing.
Q. So you attempted during the hearing to speak to
him. You indicated that in a deposition Mr. Parker had
indicated he knew of no such relationship. You had spo-
ken with Atlanta Police Bureau officials who pointed you
toward Fulton County.
50
MS. WESTMORELAND: Your Honor, I'll object
to Mr. Boger summarizing the testimony of counsel, his
own witness can testify for himself.
THE COURT: Sustain the objection.
BY MR. BOGER:
Q. Mr. — Mr. Stroup let me ask you one additional
question on this line. During the hearing, did you attempt
any other efforts to substantiate even inferentially an
informant relationship between Mr. Evans and the State?
A. Well, I - excuse me. I though in — and the deposi-
tion record will really speak for itself. I'd have to [39]
look at it. I thought I had some examination of Russell
Parker directly as opposed to Nick Dumich’s questions
along the lines of what his — his own relationship was
with Offie Evans prior to July of 1978.
MR. BOGER: Your Honor, we can do this one of
two ways. I can either refresh his recollection through
various pages, or we can submit the document, which the
state is well aware of and has made reference to. It
appears to me it might speed things if we simply submit
the document because I think what it will reflect is some
questions of that sort, but I'd offer it into evidence.
THE COURT: 1 think we need it in the record
but while you've got him on the stand. Ms. Westmore-
land?
MS. WESTMORELAND: Your Honor, I was just
going to comment, as we noted previously, I believe this
was submitted as respondent’s exhibit number six in the
first federal habeas proceeding, if it would simplify
things to have an additional copy presented in the record
51
of this case, we have absolutely no objection and cer-
tainly, agree to having that submitted.
THE COURT: Well, at some point put it in as
your 3, but right now while you've got him so he can talk
about what he sees, refresh his recollection and ask him
io —
BY MR. BOGER:
Q. Let me direct your attention to pages nine and
following of the deposition, Mr. Stroup. If you could
review those pages [40] and then having reviewed them
use your recollection to testify further. Actually, perhaps I
misdirected you. If you could begin at page eight.
A. Well, yes, in response to your question. I did ask
Russell Parker during his deposition specifically as to his
own involvement with Offie Evans, whether he had any
prior dealings with Evans prior to his — what I meant was
Evans’ becoming involved in the Frank Schlatt case, and
he indicated that, no, he didn’t know Evans prior to that
time, and there was also some examination regarding
what, if anything, Parker knew regarding Atlanta police
detectives and their contacts with Offie Evans.
Q. Let me — let me ask you further now, during the
state habeas proceeding itself, did you question Mr.
Evans about any other relationships he may have entered
into with respect to the state?
A. Yes. Actually, the other piece of information that
we had on an informer kind of relationship involving
Offie Evans was a situation that occurred after
McCleskey’s trial, in which Evans appeared at a trial in
Fulton County with Russ Parker as the District Attorney.
52
Q. That's the same Russell Parker as the District
Attorney in Mr. McCleskey’s case?
A. Right, in which Offie Evans’ testimony basically
was that while in Fulton County jail he received a jail-
house [41] confession from the defendant.
Q. By the defendant, you mean the defendant in the
other case?
A. The defendant in that case.
Q. What did you proffer that for?
A. Well, we — that’s the only other bit of informa-
tion that we've been able to develop, and we did offer
that evidence at the state habeas hearing for whatever
inferential value it had of — as to Evans’ relationship,
recognizing that it was a relationship after the McCleskey
trial, but, nonetheless, it was what we had of a concrete
nature and we did present that evidence through cross-
examination of Offie Evans at the state habeas hearing.
Q. Did the state — the state habeas court admit that
evidence?
A. I don’t recall at this point.
Q. Let me, if I might, approach the witness, give
you a document, and see if it will help you refresh your
recollection.
MS. WESTMORELAND: Once again for the court's
reference, I believe the state habeas transcript is in the
first federal proceedings as respondent’s Exhibit No. 5.
THE COURT: All right.
53
BY MR. BOGER:
Q. Do you recognize this document, Mr. Stroup?
[42] A. Yes. This is a copy of the transcript from the
state habeas, the first state habeas proceeding in Warren
McCleskey’s behalf, and you've directed me to page 123,
which is where I begin to examine Offie Evans. I asked
him, “Other than the McCleskey trial, have you ever
yourself testified that someone had confessed to murder
to you?” and it was my effort then to go in and develop
that.
Was there any impediment to that effort?
There was an objection raised.
By whom?
The state.
On grounds of what?
P
O
P
O
P
D
On the grounds of relevancy, and I indicated that
we'd raised the Sixth Amendment claim based on the
recent Supreme Court case, United States versus — the
court reporter identifies it as United States versus Tanner,
which may be my - her reading of my accent, I suppose,
relating to the use of informers and a paid informer, and I
went on to say that the line of questioning is simply to
develop a pattern in this case that amounts to a paid
informer being assigned to the Fulton County jail in a
situation where he can, in one fashion or another, elicit
incriminating evidence from persons within the custody
of the Fulton officials.
And Mr. Dumich indicated that there was no testi-
mony that he was a paid informer at all. I again argued
54
that we [43] were trying to show a pattern. There's a
further objection on relevancy by Nick Dumich, and then
the court inquired as to whether he had ever testified in a
case before you testified in McCleskey’s case about some-
thing somebody had told you in prison and -
Q. By “he” you mean Evans at this point?
A. Right. And Offie Evans indicated, “no.” And,
actually, then there is further —- a further exchange
between the Court and myself, and then at 126 I do
resume questioning regarding his subsequent testimony
at the trial of another defendant with Russ Parker as the
District Attorney handling the case.
THE COURT: So you were allowed to inquire?
BY MR. BOGER:
Q. Apart from that substantive active evidence -
THE COURT: That's a question. You were then
allowed to
THE WITNESS; Yes, it appears that I was.
THE COURT: All right.
BY MR. BOGER:
Q. Apart from that substantive evidence of subse-
quent testimony by Mr. Evans, were you able to develop
any other evidence in support of a Henry, Massiah claim?
A. None that I can recall.
Q. Were you aware of any written statement by -
THE COURT: Let me stop you there.
55
Q. - Offie Evans?
[44] THE COURT: Let's take a morning recess now, be
in recess about 15 minutes.
* * *
(Whereupon, a brief recess was had.)
THE COURT: During the recess, I flipped
through the federal — my decision in the 1st habeas, and I
don’t see a Massiah issue raised.
MR. BOGER: I was going to -
THE COURT: Does the petitioner contend that it
was raised?
MR. BOGER: No, Your Honor, I was going to get to
that next.
THE COURT: Okay.
Q. Mr. Stroup let me pursue that line of questioning
now. You indicated that you had filed an amendment to
the state habeas petition raising a Massiah Henry type of
claim. Did you advance that claim subsequent to the
federal or to the state habeas corpus hearing?
A. The claim was not carried over into the federal
habeas petition.
Q. Why not?
A. Ithink that I looked at what we had been able to
develop in support of the claim factually in the state
habeas proceeding and made the judgment that we didn’t
have the facts to support the claim and, therefore, did not
bring it into [45] federal court.
A———ECLLLLL |
56
Q. Did you carry over any related claims such as
the Giglio versus United States claim?
A. We did think that we had a very good claim
involving Offie Evans.
THE COURT: Giglio claim?
THE WITNESS: Right.
BY MR. BOGER:
Q. Mr. Stroup, let me ask you a few additional
questions. At the time of the state habeas corpus proceed-
ing, did you have any knowledge of any written state-
ment that had been made by Offie Evans?
A. No.
Q. Did you have any knowledge at the time of the
federal hearing of any such statement?
A. No.
Q. When was the first time that you are aware that
there was a written statement by Offie Evans given to the
police?
A. The first time I knew about it was about 4:30 in
the afternoon on July 10th — June 10th of 1987, and I
opened up an envelope that I had picked up from the
City Attorney's office as I was going down the elevator to
sort of read what it was I had picked up. I was taking the
elevator down, and I opened it up and saw that 21 page
statement from Offie Evans.
Q. One final question, at the time of the state habeas
[46] corpus hearing, who was actively involved in the
57
investigation and the presentation of evidence at the
hearing and at the deposition in concert with you?
A. At the state — at the state habeas hearing?
Q. That’s correct.
A. Excuse me. Basically, I did the - I had the major
responsibility of — for the first state habeas hearing on
Warren McCleskey’s behalf. I drafted the petition. I or
people in my office did the investigation. You and, excuse
me, other lawyers from the Fund were on the pleadings
but I did — I know I sent you copies of the pleadings of —
I'm not certain at this point that you had involvement
through the first state habeas hearing beyond your
receipt of the pleadings. I may have on occasion called
you with a question, just generally as to a legal issue. I
don’t have any recollection of that, any specific recollec-
tion even of that during the first habeas, but I would not
be surprised that I would have done that but basically — I
mean, I was the only one - I was the one who conducted
the hearing on behalf of McCleskey, I was the one in
charge of the investigation, the interviewing of witnesses,
the preparation of documents both at the Butts Superior
Court level as well as the Georgia Supreme Court level.
MR. BOGER: Your Honor, at this time I don’t
have any additional questions of Mr. Stroup. I'd like to
offer into evidence - the state has indicated it’s been in
previous [47] submissions in the first habeas, but for the
convenience of the Court — the deposition of Russell
Parker that’s been referred to. That would be petitioner’s
3, I believe.
THE COURT: It will be admitted.
58
MR. BOGER: Thank you.
THE COURT: Anything further of this witness?
MR. BOGER: No, Your Honor.
THE COURT: You may cross.
BY MS. WESTMORELAND:
Q. Mr. Stroup, I believe your testimony was that
you talked to some - some members of the Atlanta
Bureau of Police Services prior to the first state habeas
corpus proceeding; is that correct?
A. Yes.
Q. And you do not recall who those individuals
were at this time; is that also correct?
A. No, no, I -1 can tell you of two specific persons
who I spoke with, whether —
Q. Who did -
A. Whether that’s the the complete list or not, I
can’t tell you.
Q. Who did you speak with?
A. One of the people I spoke with was — he’s now
Captain Eulis Moore. He at the time may have been a
Sergeant. I'm not sure of the timing on his promotion to
Captain. And the other [48] Atlanta Police Officer who I
know specifically I spoke with was Detective Gresham.
Q. Did you at any time talk with Detective Harris
prior to the first state habeas proceeding?
A. No.
59
Q. Did you talk to Detective Dorsey at any time
prior to the first state habeas proceeding?
A. No.
Q. What about investigator. I believe he was,
Eskew?
A. No, I did not.
Q. Did you ever talk to Deputy Hamilton?
A. I don’t believe so. I don’t — I talked with some
people also at Fulton County jail. I don’t have a specific
recollection of Hamilton. It is possible that I spoke with
Hamilton.
Q. Did you talk with anyone then who was actually
involved in - directly involved with Offie Evans, eliciting
his —
A. Yes, that was my understanding, that I was
speaking to people at Fulton County jail who were
directly involved with Offie Gene Evans. The — I know - I
know of two people who I specifically spoke with and a
third person who — who was represented to me as possi-
bly having some information. The people who I spoke
with, there was a gentleman named Bobby Edwards who
by that time had left the Fulton County Sheriff's Depart-
ment, if I’ve got the department right. I understood he
[49] was at the jail and that he had information or was in
a position to have information related to the questions I
was asking, the underlying circumstances of Evans’
assignment to solitary. He had by that time moved to
Helen, Georgia or thereabouts. I — and I think it was — he
was — it was represented to me that he was in real estate.
60
And I was able to find him through a realtor who I
know up in that area, and I spoke with him, and he told
me he had simply no recollection whatsoever of any of
the circumstances.
Q. Once Offie Evans mentioned specifically the
name of Dorsey, Detective Dorsey, in his testimony at the
state habeas corpus proceeding, did you talk to Detective
Dorsey to ascertain if he had any information that might
be useful?
A. No, I did not.
Q. And, I believe, during the deposition of Mr.
Parker, he mentioned the names of Detective Jowers and
Detective Harris. Did you talk to them after that deposi-
tion to ascertain if they had any information?
A. At that — no, I did not. At that point in time in
the procedure, you know, the — my understanding was
the record was closed. I mean, we — we had concluded the
evidence in the state habeas hearing. It was left open
specifically for Parker and Kelly Fight’s depositions, and
we were on a briefing schedule.
Q. You did not make any attempt, though, to con-
tact [50] witnesses whose names had been mentioned
both by Mr. Evans and by Mr. Parker as having had
contact with Mr. Evans?
A. I have - no, I do not believe that I did.
Q. So all you knew was that Mr. Parker had no
knowledge of whether these detectives had had any prior
contact with Mr. Evans, you did not know whether these
detectives themselves had any prior contact with Mr.
Evans; is that correct?
61
A. I believe that’s correct, I — let me think. What I
had was their testimony at trial, that, you know, these
police officer’s testimony at trial and Parker’s deposition
testimony.
THE COURT: Did they testify regarding this sub-
ject at trial?
THE WITNESS: I frankly can’t say at this point.
MS. WESTMORELAND: Your Honor, I don’t
recall that they did. I believe the only one who did was
chief — was the jailer, Mr. Hamilton, at the rebuttal phase.
I don’t recall their testimony relating to testimony of
Offie Evans at trial specifically.
BY MS. WESTMORELAND:
Q. And as to Deputy Hamilton who did testify at
trial and did indicate he was the one, I believe, obtaining
the initial contact with Mr. Evans, you did not talk to him
prior to the state habeas proceeding; is that correct?
A. Excuse me. I cannot say at this point that I did or
did not. It is possible, but I don’t have any recollection of
[51] doing it.
Q. And you never requested any records from the
Atlanta Police Department prior to the first state habeas
corpus proceeding; is that correct?
A. I did request records from the Atlanta Police
Bureau. They were records related to the race discrimina-
tion claim. But I did not request records relating to an
informer claim.
MS. WESTMORELAND: All right. I have no fur-
ther questions, your Honor.
62
THE COURT: Redirect?
MR. BOGER: No, Your Honor.
THE COURT: All right, sir. Thank you, you may
go down, Mr. Stroup.
* * *
63 .
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
(Caption Omitted In Printing)
ORDER
I. INTRODUCTION
Petitioner Warren McCleskey, convicted and sen-
tenced to death in October 1978 for the murder of Police
Officer Frank Schlatt during the course of a furniture
store robbery, petitions this court for a writ of habeas
corpus on seven separate grounds: (1) that the states
non-disclosure of critical impeachment evidence violated
his due process rights (the Giglio claim); (2) that his
capital sentence was the product of intentional racial
discrimination in violation of his eighth amendment and
equal protection rights (the intentional discrimination
claim); (3) that the trial court's denial of funds to employ
experts in his defense violated his due process rights (the
Ake claim); (4) that the use of the petitioner's alleged
statements to a jailhouse informant violated his sixth
amendment and due process rights (the Massiah claim);
(5) that the state’s failure to correct a witness’s mislead-
ing testimony violated his eighth amendment and due
process rights (the Mooney claim); (6) that the state's
reference to appellate review in its closing argument vio-
lated his eighth amendment and due process rights (the
Caldwell claim); and (7) that the state’s systematic exclu-
sion of black jurors violated his sixth amendment and
equal protection rights (the Batson claim).
For the reasons discussed below, the petition for a
writ of habeas corpus will be granted as to the Massiah
64
claim but denied as to all other claims. In Part II of this
order the court will detail the history of the petitioner's
efforts to avoid the death penalty. Then, because the
successive nature of this petition dominates the court's
discussion and will be dispositive of many of the issues
raised by the petition, Part III will set out the general
principles of finality in habeas corpus actions. Next, the
court will address each of the seven claims raised in this
petition; first, the successive claims in Part IV (the Giglio,
intentional discrimination, and Ake claims) and then the
new claims in Part V (the Massiah, Mooney, Caldwell, and
Batson claims). Finally, in Part VI, the court will address
the petitioner’s other pending motions — a motion for
discovery and a motion to exceed page limits.
II. HISTORY OF PRIOR PROCEEDINGS.
The petitioner was convicted and sentenced in the
Superior Court of Fulton County on October 12, 1978. The
convictions and sentences were affirmed by the Supreme
Court of Georgia. McCleskey v. State, 245 Ga. 108 (1980).
The United States Supreme Court then denied a petition
for certiorari, McCleskey v. Georgia, 449 U.S. 891 (1980). On
December 19, 1980, the petitioner filed an extraordinary
motion for a new trial in Fulton County Superior Court,
but no hearing has ever been held on that motion. On
January 5, 1981 the petitioner filed a petition for writ of
habeas corpus in the Butts County Superior Court. On
April 8, 1981, that court denied all relief. On June 17, 1981
the Georgia Supreme Court denied the petitioner's appli-
cation for a certificate of probable cause to appeal. The
United States Supreme Court again denied a petition for a
writ of certiorari McCleskey v. Zant. 454 U.S. 1093 (1981).
65
McCleskey filed his first federal habeas corpus peti-
tion in this court on December 30, 1981. This court held
an evidentiary hearing in August and October 1983 and
granted habeas corpus relief on one issue on February 1,
1984. McCleskey v. Zant, 580 F. Supp. 338 (N.D.Ga. 1984).
The Eleventh Circuit reversed and denied the habeas
corpus petition on January 29, 1985. McCleskey v. Kemp,
753 F.2d 877 (11th Cir. 1985) (en banc). This time the
United States Supreme Court granted certiorari and
affirmed the Eleventh Circuit on April 22, 1987. McCleskey
o- Kemp, US. _', 107'S.Ct. 1756, petition for rehearing
denied, ___ U.S. __, 107 S.Ct. 3199 (1987). McCleskey filed
a successive petition for a writ of habeas corpus in the
Butts County Superior Court on June 9, 1987, and a First
Amendment to the Petition on June 22, 1987 (Civil Action
No. 87-V-1028). That court granted the state’s motion to
dismiss the petition on July 1, 1987. The Georgia Supreme
Court denied the petitioner’s application for a certificate
of probable cause to appeal on July 7, 1987 (Application
No. 4103).
This court issued an order on June 16, 1987 making
the mandate of the Eleventh Circuit the judgment of this
court and lifting the stay of execution that had been
entered when the first federal habeas corpus petition was
filed. On July 7, 1987 McCleskey filed the present petition
for a writ of habeas corpus, a request to proceed in forma
pauperis, a motion for discovery, and a motion for a stay
of execution. The court granted the request to proceed in
forma pauperis and held an evidentiary hearing on the
petition on July 8 and 9, 1987. At that time, the court
granted the motion for a stay of execution. The court took
further evidence in a hearing on August 10, 1987 and, at
66
the close of the evidence, requested post-hearing briefs
from the parties. Those briefs have since been filed and
the petitioner's claims are ripe for determination.
III. THE DOCTRINE OF FINALITY IN HABEAS
CORPUS PETITIONS.
Although successive petitions for a writ of habeas
corpus are not subject to the defense of res judicata, Con-
gress and the courts have fashioned a “modified doctrine
of finality” which precludes a determination of the merits
of a successive petition under certain circumstances. Bass
v. Wainwright, 675 F.2d 1204, 1206 (11th Cir. 1982). In
particular, Congress has authorized the federal courts to
decline to address the merits of a petition if the claims
contained therein were decided upon the merits previ-
ously or if any new grounds for relief that are asserted
should have been raised in the previous petition. 28 USC
§ 2244(a) & (b). The habeas rules have described these
distinct applications of the doctrine of finality as follows:
A second or successive petition may be dis-
missed if the judge finds that it fails to allege
new or different grounds for relief and the prior
determination was on the merits or, if new and
different grounds are alleged, the judge finds
that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse
of the writ.
28 USC foll. § 2254, Rule 9(b).
A purely successive petition or successive claim
raises issues which have been decided adversely on a
previous petition. The court may take judicial notice of
allegations raised by a previous petition. See Allen v.
67
Newsome, 795 F.2d 934, 937 (11th Cir. 1986). Rule 9(b)
requires that the issue raised by the previous petition
must have been decided adversely to the petitioner on
the merits before the doctrine of finality obtains. A merits
determination need not be a determination made after an
evidentiary hearing if the facts material to the successive
claim were undisputed at the time of the previous peti-
tion. Bass, 675 F.2d at 1206.
A truly successive petition may be distinguished
from the second category of petitions subject to the final-
ity doctrine: petitions alleging new claims that may be an
“abuse of the writ.” 28 USC § 2244(b); 28 USC foll. § 2254,
Rule 9(b). The state has the burden of pleading abuse of
the writ; the burden then shifts to the petitioner to show
that he has not abused the writ. Price v. Johnston, 334 U.S.
266, 292-93 (1948); see also Allen v. Newsome, 795 F.2d 934,
938-39 (11th Cir. 1986). To meet his burden, a petitioner
must “give a good excuse for not having raised his claims
previously.” Allen 794 F.2d at 939. An evidentiary hearing
on an abuse of the writ defense is not necessary if the
record affords an adequate basis for decision. Price, 334
U.S. at 292-93.
As this circuit has articulated the issue presented by
an abuse of the writ defense, “[a] district court need not
consider a claim raised for the first time in a second
habeas petition, unless the petitioner establishes that the
failure to raise the claim earlier was not the result of
intentional abandonment or withholding or inexcusable
neglect.” Adams v. Dugger, 816 F.2d 1493, 1494 (11th Cir.
1987) (citations omitted). See also Moore v. Kemp, 824 F.2d
847, 851 (11th Cir. 1987). There are a number of instances
in which failure to raise an issue in a prior petition is
68
excusable. “A retroactive change in the law and newly
discovered evidence are examples.” 28 USC foll. § 2254,
Rule 9 Advisory Committee Notes. See, e.g., Ritter v.
Thigpen, 828 F.2d 662, 665 (11th Cir. 1987); Adams, 816 F.2d
at 1495. Of course, failure to discover evidence support-
ive of a claim prior to the first petition may itself consti-
tute inexcusable neglect or deliberate bypass. Cf. Freeman
v. Georgia, 599 F.2d 65, 71-72 (5th Cir. 1979) (no procedural
default where petitioner was misled by police and could
not have uncovered evidence supportive of a claim in any
event).2
Even if a particular claim is truly successive or, if it is
a new claim, is an abuse of the writ, a court may consider
the merits of the claim if “the ends of justice” would be
served thereby. See Sanders v. United States, 373 U.S. 1, 16
(1963) (successive claim); id. at 18 (new claim); Smith v.
Kemp, 715 F.2d 1459, 1468 (11th Cir. 1983) (successive
claim); Moore v. Kemp, 824 F.2d at 856 (new claim). The
burden is upon the petitioner to show that the ends of
justice would be served. Sanders, 373 U.S. at 17.
The “ends of justice” exception has been subject to
differing interpretations. The Court in Sanders suggested
some circumstances in which the “ends of justice” would
be served by re-visiting a successive claim:
If factual issues are involved, the applicant is
entitled to a new hearing upon a showing that
the evidentiary hearing on the prior application
was not full and fair; we canvassed the criteria
of a full and fair evidentiary hearing recently in
Townsend v. Sain, [372 U.S. 293 (1963)], and that
discussion need not be repeated here. If purely
legal questions are involved, the applicant may
be entitled to a new hearing upon showing an
69
intervening change in the law or some other
justification for having failed to raise a crucial
point or argument in the prior application.
. . . [T]he foregoing enumeration is not intended
to be exhaustive; the test is “the ends of justice”
and it cannot be too finely particularized.
373 U.S. at 16-17. This circuit has traditionally followed
the Sanders articulation of the “ends of justice” exception.
See, e.g., Moore v. Kemp, 824 F.2d at 856; Smith v. Kemp, 715
F.2d at 1468.
A plurality of the Supreme Court recently challenge
this open-ended definition of “the ends of justice,” argu-
ing that a successive claim should not be addressed
unless the petitioner “supplements his constitutional
claim with a colorable showing of factual innocence.”
Kuhlmann v. Wilson, ___ U.S. __, 106 S.Ct. 2616, 2627
(1986) (Opinion of Powell, J., joined by Burger, Rehnquist,
and O'Connor, J]J.). Under this definition of the “ends of
justice,” the petitioner “must make his evidentiary show-
ing even though . . . the evidence of guilt may have been
unlawfully admitted.” Id. That is, petitioner must “show
a fair probability that, in light of all the evidence, includ-
ing that alleged to have been illegally admitted (but with
due regard to any unreliability of it) and evidence tenably
claimed to have been wrongfully excluded or to have
become available only after trial, the trier of facts would
have entertained a reasonable doubt of his guilt.” Id. n. 17
(quoting Friendly, Is Innocence Irrelevant? Collateral Attack
on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970)).
Following Kuhlmann, “[i]t is not certain what stan-
dards should guide a district court in determining
whether the ‘ends of justice’ require the consideration of
70
an otherwise dismissable (sic) successive habeas peti-
tion.” Moore, 824 F.2d at 856. The Eleventh Circuit, in
Moore, declined to decide “whether a colorable showing
of factual innocence is a necessary condition for the
application of the ends of justice exception.” Id. The court
merely held that, “at a minimum, the ends of justice will
demand consideration of the merits of a claim on a suc-
cessive petition where there is a colorable showing of
factual innocence.” Id.
IV. PETITIONER’S SUCCESSIVE CLAIMS.
Three of the petitioner’s claims in this second federal
habeas petition duplicate claims in the first federal peti-
tion and are therefore truly successive claims that should
be dismissed according to the dictates of Rule 9(b) unless
the petitioner can show that the “ends of justice” justify
re-visiting the claims. Each claim will be discussed in
turn.
A. Giglio Claim
Petitioner’s Giglio claim is based upon the state's
failure to disclose its agreement with a witness, Offie
Evans, which led him to testify against petitioner at trial.
McCleskey argues that the state’s failure to disclose the
promise by a police detective to “speak a word” for Offie
Evans with regard to an escape charge violated
McCleskey’s due process rights under Giglio v. United
States, 405 U.S. 150 (1971). Giglio held that failure to
disclose the possible interest of a government witness
will entitle a defendant to a new trial if there is a reason-
able likelihood that the disclosure would have affected
71
the judgment of the jury. Id. at 154. This court granted
habeas corpus relief on this claim in passing upon the
first federal habeas petition, but the Eleventh Circuit
reversed en banc. McCleskey v. Zant, 580 F.Supp. at 380-84,
rev'd sub nom. McCleskey v. Kemp, 753 F.2d at 885.
McCleskey argues that the ends of justice require
revisiting his Giglio claim for three reasons. He argues
that the discovery of a written statement by Offie Evans
provides new evidence of a relationship between Offie
Evans and the state supportive of a finding of a quid pro
quo for Offie Evans’ testimony. He also proffers the affi-
davit testimony of jurors who indicate that they might
have reached a different verdict had they know the real
interest of Offie Evans in testifying against petitioner.
Finally, petitioner contends that there has been a change
in the law regarding the materiality standard for a find-
ing of a Giglio violation.
None of these arguments is sufficient to justify re-
visiting the Giglio claim. The written statement of Offie
Evans offers no new evidence of an agreement by state
authorities to do Offie Evans a favor if he would testify
against petitioner. Consequently, the conclusion of the
Eleventh Circuit that the detective’s promise did not
amount to a promise of leniency triggering Giglio is still
valid. See McCleskey v. Kemp, 753 F.2d at 885. Because the
threshold showing of a promise still has not been made,
the ends of justice would not be served by allowing
petitioner to press this claim again.
Petitioner also has no newly discovered evidence
with respect to the materiality of the state’s failure to
disclose its arrangement with Offie Evans. The affidavit
72
testimony of the jurors is not evidence that petitioner
could not have obtained at the time of the first federal
habeas petition. In any event, a juror is generally held
incompetent to testify in impeachment of a verdict. Fed.
R. Evid. 606(b); Proffitt v. Wainwright, 685 F.2d 1227, 1255
(11th Cir. 1982). See generally McCormick on Evidence § 608
(3d Ed. 1984).
Finally, petitioner can point to no change in the law
on the standard of materiality. The Eleventh Circuit con-
cluded in this case that there was “no ‘reasonable likeli-
hood’ that the State’s failure to disclose the detective’s
[promise] affected the judgment of the jury.” McCleskey,
753 F.2d at 884. The same standard still guides this circuit
in its most recent decisions on the issue. See, e.g., United
States v. Burroughs, No. 86-3566, Slip Op. at 381 (11th Cir.,
Nov. 3, 1987); Brown, 785 F.2d at 1464 (citing McCleskey v.
Kemp, 753 F.2d at 885).
B. Intentional Discrimination Claim.
Having lost in the Supreme Court® on his contentions
regarding the Baldus Study, the petitioner nevertheless
trotted it out to support the more narrow contention that
McCleskey was singled out both because he is black and
because his victim was white.
The Baldus Study is said to be the most ambitious
yet. It is. The part of it that is ambitious, however — the
230-variable model structured and validated by Dr.
Baldus — did not adduce one smidgen of evidence that the
race of the defendants or the race of the victims had any
effect on the Georgia prosecutors’ decisions to seek the
death penalty or the juries’ decisions to impose it. The
TT
73
model that Dr. Baldus testified accounted for all of the
neutral variables did not produce any “death-odds multi-
plier” of 4 or 6 or 11 or 14 or any of the other numbers
which the media have reported.
To be sure, there are some exhibits that would show
discrimination and do contain such multipliers. But these
were not produced by the “ambitious” 230-variable
model of the study. The widely-reported “death-odd mul-
tipliers” were produced instead by arbitrarily structured
little rinky-dink regressions that accounted for only a few
variables. They are of the sort of statistical analysis given
short shrift by courts and social scientists alike in the
past. They prove nothing other than the truth of the
adage that anything may be proved by statistics.
The facts are that the only evidence of over-zealous-
ness or improprieties by any person(s) in the law enforce-
ment establishment points to the black case officers of the
Atlanta Bureau of Police Services, which was then under
the leadership of a black superior who reported to a black
mayor in a majority black city. The verdict was returned
by jury on which a black person sat and, although
McCleskey has adduced affidavits from jurors on other
subjects, there is no evidence that the black juror voted
for conviction and the death penalty because she was
intimidated by the white jurors. It is most unlikely that
any of these black citizens who played vital roles in this
case charged, convicted or sentenced McCleskey because
of the racial considerations alleged.
There is no other evidence that race played a part in
this case.
74
C. Ake Claim.
Petitioner’s last truly successive claim is based upon
the trial court’s denial of his request for the provision of
funds for experts, particularly for a ballistics expert. Peti-
tioner alleges that this ruling by the trial court denied
him his right to due process of law as guaranteed by the
fourteenth amendment. Petitioner raised this same claim
in the first federal habeas petition and this court held that
the claim was without merit. McCleskey v. Zant, 580 F.
Supp. at 388-89 (citing Moore v. Zant, 722 F.2d 640 (11th
Cir. 1983)). At that time the law held that the appoint-
ment of experts was generally a matter within the discre-
tion of the trial judge and could not form the basis for a
due process claim absent a showing that the trial judge’s
decision rendered the defendant's trial fundamentally
unfair. Moore, 772 F.2d at 648. With that case law in mind,
this court concluded that the state trial court had not
abused its discretion because the petitioner had the
opportunity to subject the state’s ballistics expert to
cross-examination and because there was no showing of
bias or incompetence on the part of the state’s expert.
McCleskey v. Zant, 580 F. Supp. at 389.
Arguing that the ends of justice require re-visiting
the claim, petitioner points to the cases of Ake v. Okla-
homa, 470 U.S. 68, 83 (1985) and Caldwell v. Mississippi, 472
U.S. 320, 323 n. 1 (1985) (plurality), as examples of a
change in the law regarding the provision of experts. It
may be that these cases did change the law; this matter,
which was traditionally thought to rest within the discre-
tion of state trial judges, now has heightened constitu-
tional significance. Compare Moore v. Zant, 722 F.2d at 648,
with Moore v. Kemp, 809 F.2d 702, 709-12 (11th Cir. 1987).
75
Even so, this new law does not justify re-visiting this
claim. The new Supreme Court cases require “that a
defendant must show the trial court that there exists a
reasonable probability both that an expert would be of
assistance to the defense and that denial of expert assis-
tance would result in a fundamentally unfair trial. Thus,
if a defendant wants an expert to assist his attorney in
confronting the prosecution’s proof . . . he must inform
the court of the nature of the prosecution’s case and how
the requested expert would be useful.” Moore v. Kemp, 809
F.2d at 712. A review of the state trial record indicates
that petitioner did nothing more than generally refer to
the extensive expert testimony available to the state. Peti-
tioner then specifically requested the appointment of a
psychiatric expert. The petitioner never specifically
requested the appointment of a ballistic expert, nor did
he make the showing that this circuit has held is required
by Ake and Caldwell. The state trial court could hardly
have been expected to appreciate the importance of a
ballistics expert to petitioner’s case if petitioner himself
neither requested such an expert nor explained the
significance of such an expert to the court.
V. PETITIONER'S NEW CLAIMS.
A. Massiah Claim.
1. Findings of Fact.
Petitioner relies primarily on the testimony of
Ulysses Worthy before this court and the recently dis-
closed written statement of Offie Evans to support his
Massiah claim. Ulysses Worthy, who was captain of the
day watch at the Fulton County Jail during the summer
76
of 1978 when petitioner was being held there awaiting his
trial for murder and armed robbery, testified before this
court on July 9 and August 10, 1987. The court will set
out the pertinent parts of that testimony and then sum-
marize the information it reveals.
On July 9, Worthy testified as follows: He recalled
“something being said” to Evans by Police Officer Dorsey
or another officer about engaging in conversations with
McCleskey (II Tr. 147-49).5 He remembered a conversa-
tion, where Detective Dorsey and perhaps other officers
were present, in which Evans was asked to engage in
conversations with McCleskey (II Tr. 150). Later, Evans
requested permission to call the detectives (II Tr. 151).
Assistant District Attorney Russell Parker and Detective
Harris used Worthy’s office to interview Evans at one
point, which could have been the time they came out to
the jail at Evans’ request (Id.).
In other cases, Worthy had honored police requests
that someone be placed adjacent to another inmate to
listen for information (II Tr. 152); such requests usually
would come from the officer handling the case (Id.); he
recalled specifically that such a request was made in this
case by the officer on the case (II Tr. 153). Evans was put
in the cell next to McCleskey at the request of the officer
on the case (Id.); “someone asked [him] to specifically
place Officer Evans in a specific location in the Fulton
County Jail so he could overhear conversations with War-
ren McCleskey,” but Worthy did not know who made the
request and he was not sure whether the request was
made when Evans first came into the jail (II Tr. 153-54); he
did not recall when he was asked to move Evans (II Tr.
155-56).
77
On August 10, 1987 Worthy testified as follows:
Evans was first brought to his attention when Deputy
Hamilton brought Evans to Worthy’s office because
Evans wanted to call the district attorney or the police
with “some information he wanted to pass to them” (III
Tr. 14). The first time the investigators on the Schlatt
murder case talked to Evans was “a few days” after
Evans’ call (IIl Tr. 16-17). That meeting took place in
Worthy’s office (III Tr. 17). Worthy was asked to move
Evans “from one cell to another” (III Tr. 18). Worthy was
“not sure” who asked, “but it would have had . . . to have
been one of the officers,” Deputy Hamilton, or Evans (III
Tr. 18-19). Deputy Hamilton asked Worthy to move Evans
“perhaps 10, 15 minutes” after Evans’ interview with the
investigators (III Tr. 20). This was the first and only time
Worthy was asked to move Evans (Id.). Deputy Hamilton
would have been “one of the ones” to physically move
Evans (III Tr. 22). Worthy did not know for a fact that
Evans was ever actually moved (Id.). The investigators
later came out to interview Evans on other occasions, but
not in Worthy’s presence (III Tr. 23). Neither Detectives
Harris, Dorsey or Jowers nor Assistant District Attorney
Parker ever asked Worthy to move Evans (III Tr. 24).
On cross-examination, Worthy re-affirmed portions
of his July 9 testimony: He overheard someone ask Evans
to engage in conversation with McCleskey at a time when
Officer Dorsey and another officer were present (III Tr.
32-33). Evans requested permission to call the investiga-
tors after he was asked to engage in conversation with
McCleskey (III Tr. 33). Usually the case officer would be
the one to request that an inmate be moved and that was
the case with Evans, though he does not know exactly
78
who made the request (III Tr. 46-48). Worthy also contra-
dicted portions of his July 9 testimony, stating that the
interview at which Assistant District Attorney Parker was
present was the first time Evans was interviewed and that
Worthy had not met Officer Dorsey prior to that time (III
Tr. 36). On further cross-examination, Worthy testified as
follows: Deputy Hamilton was not a case officer but was
a deputy at the jail (III Tr. 49). When Worthy testified on
July 9 he did not know what legal issues were before the
court (III Tr. 52-53). After his July 9 testimony he met with
the state’s attorneys on two occasions for a total of forty
to fifty minutes (III Tr. 53-54). After his July 9 testimony
he read a local newspaper article mentioning him (III Tr.
56).
In response to questions from the court, Worthy
stated that he was satisfied that he was asked for Evans
“to be placed near McCleskey’s cell,” that “Evans was
asked to overhear McCleskey talk about this case,” and
that Evans was asked to “get some information from”
McCleskey (III Tr. 64-65). Worthy maintained that these
requests were made on the date that Assistant District
Attorney Parker interviewed Evans, but he could not
explain why the investigators would have requested a
move on the same day that Evans had already told the
investigators that he was next to McCleskey, that he had
been listening to what McCleskey had been saying, and
that he had been asking McCleskey questions (III Tr. 64).
In summary, Worthy never wavered from the fact
that someone, at some point, requested his permission to
move Evans to be near McCleskey. Worthy’s July 9 testi-
mony indicates the following sequence: The request to
79
move Evans, the move, Evans’ request to call the investi-
gators, the Parker interview, and other later interviews.
Worthy’s August 10 testimony indicates a different
sequence: Evans’ request to call the investigators, the
Parker interview, the request to move Evans by Deputy
Hamilton, and other later interviews. Worthy’s testimony
is inconsistent on Officer Dorsey’s role in requesting the
move, on whether Deputy Hamilton requested the move,
and on whether the request to move Evans preceded
Evans’ request to call the investigators. Worthy has no
explanation for why the authorities would have
requested to move Evans after the Parker interview, at
which Evans made it clear that he was already in the cell
adjacent to McCleskey’s.
All of the law enforcement personnel to whom Wor-
thy informed - Deputy Hamilton, Detectives Dorsey,
Jowers and Harris, and Assistant District Attorney Parker
— flatly denied having requested permission to move
Evans or having any knowledge of such a request being
made (IIT Tr. 68-71); 80-81, 95; 97-98; 102-03; 111-12, 116).
It is undisputed that Assistant District Attorney Parker
met with Evans at the Fulton County Jail on only one
occasion, July 12, 1978, and that Evans was already in the
cell next to McCleskey’s at that time (III Tr. 113-14; 71-72).
Petitioner also relies on Evans’ twenty-one page
statement to the Atlanta Police Department, dated
August 1, 1978, in support of his claim that the authori-
ties deliberately elicited incriminating information from
him in violation of his sixth amendment right to counsel.
Evans’ statement relates conversations he overheard
between McCleskey and McCleskey’s co-defendant
DuPree and conversations between himself and
80
McCleskey from July 9 to July 12, 1978. McCleskey’s
statements during the course of those conversations were
highly incriminating. In support of his argument that the
authorities instigated Evans’ information gathering,
McCleskey points to the methods Evans used to secure
McCleskey’s trust and thereby stimulate incriminating
conversation. Evans repeatedly lied to McCleskey, telling
him that McCleskey’s co-defendant, Ben Wright, was
Evans’ nephew; that Evans’ name was Charles; that Ben
had told Evans about McCleskey; that Evans had seen
Ben recently; that Ben was accusing McCleskey of falsely
identifying Ben as the “trigger man” in the robbery; that
Evans “used to stick up with Ben too;” that Ben told
Evans that McCleskey shot Officer Schlatt; and that Evans
was supposed to have been in on the robbery himself.
In addition, McCleskey argues that Evans’ knowl-
edge that McCleskey and other co-defendants had told
police that co-defendant Ben Wright was the trigger per-
son demonstrates Evans’ collusion with the police since
that fact had not been made public at that time. Finally,
McCleskey points to two additional pieces of evidence
about Evans’ relationship with the police: Evans testified
at McCleskey’s trial that he had talked to Detective Dor-
sey about the case before he talked to Assistant District
Attorney Parker (Pet. Exh. 16 at 119); and Evans had
acted as an informant for Detective Dorsey before (II Tr.
52-3).
The factual issue for the court to resolve is simply
stated: Either the authorities moved Evans to the cell
adjoining McCleskey’s in an effort to obtain incriminating
information or they did not. There is evidence to support
the argument that Evans was not moved, that he was in
81
the adjoining cell fortuitously, and that his conversations
with McCleskey preceded his contact with the authori-
ties. Worthy’s testimony is often confused and self-con-
tradictory, it is directly contrary to the testimony of
Deputy Hamilton and Detective Dorsey, it is contrary to
Evans’ testimony at McCleskey’s trial that he was put in
the adjoining cell “straight from the street” (Trial Tr. 873),
and it is contrary to the opening line of Evans’ written
statement which says, “I am in the Fulton County Jail cell
# 1 north 14 where I have been since July 3, 1978 for
escape.” Worthy himself testified that escape risks where
(sic) housed in that wing of the jail (III Tr. 13-14). More-
over, the use of Evans as McCleskey alleges, if it
occurred, developed into a complicated scheme to violate
McCleskey’s constitutional rights — its success required
Evans and any officers involved to lie and lie well about
the circumstances. For these reasons, the state asks this
court to reject Worthy’s testimony that someone
requested permission to move Evans next to McCleskey’s
cell.
After carefully considering the substance of Worthy’s
testimony, his demeanor, and the other relevant evidence
in this case, the court concludes that it cannot reject
Worthy’s testimony about the fact of a request to move
Offie Evans. The fact that someone, at some point,
requested his permission to move Evans is the one fact
from which Worthy never wavered in his two days of
direct and cross-examination. The state has introduced no
affirmative evidence that Worthy is either lying or mis-
taken. The lack of corroboration by other witnesses is not
surprising; the other witnesses, like Assistant District
Attorney Parker, had no reason to know of a request to
82
move Evans or, like Detective Dorsey, had an obvious
interest in concealing any such arrangement. Worthy, by
contrast, had no apparent interest or bias that would
explain any conscious deception. Worthy’s testimony that
he was asked to move Evans is further bolstered by
Evans’ testimony that he talked to Detective Dorsey
before he talked to Assistant District Attorney Parker and
by Evans’ apparent knowledge of details of the robbery
and homicide known only to the police and the perpetra-
tors.
Once it is accepted that Worthy was asked for per-
mission to move Evans, the conclusion follows swiftly
that the sequence of events to which Worthy testified
originally must be the correct sequence; i.e., the request
to move Evans, the move, Evans’ request to call the
investigators, the Parker interview, and other later inter-
views. There are two other possible conclusions about the
timing of the request to move Evans, but neither is ten-
able. First, the request to move Evans could have come
following Evans’ meeting with Assistant District Attor-
ney Parker, as Worthy seemed to be testifying on August
10 (III Tr. 20). However, a request at that point would
have been non-sensical because Evans was already in the
cell adjoining McCleskey’s. Second, it could be that Evans
was originally in the cell next to McCleskey, that he
overheard the incriminating statements prior to any con-
tact with the investigators, that McCleskey was moved to
a different cell, and that the authorities then requested
permission to move Evans to again be adjacent to
McCleskey. As the state concedes, this possibility is mere
speculation and is not supported by any evidence in the
record. Post-Hearing Brief at 53.
83
For the foregoing reasons, the court concludes that
petitioner has established by a preponderance of the evi-
dence the following sequence of events: Evans was not
originally in the cell adjoining McCleskey’s; prior to July
9, 1978, he was moved, pursuant to a request approved
by Worthy, to the adjoining cell for the purpose of gather-
ing incriminating information; Evans was probably
coached in how to approach McCleskey and given critical
facts unknown to the general public; Evans engaged
McCleskey in conversation and eavesdropped on
McCleskey’s conversations with DuPree; and Evans
reported what he had heard between July 9 and July 12,
1978 to Assistant District Attorney Parker on July 12.
2. Abuse of the Writ Questions.
The state argues that petitioner's Massiah claim in
this second federal habeas petition is an abuse of the writ
because he intentionally abandoned the claim after his
first state habeas petition and because his failure to raise
this claim in his first federal habeas petition was due to
inexcusable neglect. As was noted earlier, the burden is
on petitioner to show that he has not abused the writ.
Allen, 795 F.2d at 938-39. The court concludes that peti-
tioner’s Massiah claim is not an abuse of the writ.
First, petitioner cannot be said to have intentionally
abandoned this claim. Although petitioner did raise a
Massiah claim in his first state petition, that claim was
dropped because it was obvious that it could not succeed
given the then-known facts. At the time of his first fed-
eral petition, petitioner was unaware of Evans’ written
IEEE
84
statement, which, as noted above, contains strong indica-
tions of an ab initio relationship between Evans and the
authorities. Abandoning a claim whose supporting facts
only later become evident is not an abandonment that
“for strategic, tactical, or any other reasons . . . can fairly
be described as the deliberate by-passing of state pro-
cedures.” Fay v. Noia, 372 U.S. 391, 439 (1963), quoted in
Potts v. Zant, 638 F.2d 727, 743 (5th Cir. 1981). Petitioner’s
Massiah claim is therefore not an abuse of the writ on
which no evidence should have been taken. This is not a
case where petitioner has reserved his proof or deliber-
ately withheld his claim for a second petition. Cf. Sanders
v. United States, 373 U.S. 1, 18 (1963). Nor is the petitioner
now raising an issue identical to one he earlier consid-
ered without merit. Cf. Booker v. Wainwright, 764 F.2d
1371, 1377 (1lih Cir. 1985),
Second, petitioner’s failure to raise this claim in his
first federal habeas petition was not due to his inexcus-
able neglect. When the state alleges inexcusable neglect,
the focus is on “the petitioner's conduct and knowledge
at the time of the preceding federal application. . . . He is
chargeable with counsel's actual awareness of the factual
and legal bases of the claim at the time of the first
petition and with the knowledge that would have been
possessed by reasonably competent counsel at the time of
the first petition.” Moore, 824 F.2d at 851. Here, petitioner
did not have Evans’ statement or Worthy’s testimony at
the time of his first federal petition; there is therefore no
inexcusable neglect unless “reasonably competent coun-
sel” would have discovered the evidence prior to the first
federal petition. This court concluded at the evidentiary
hearing that petitioner's counsel's failure to discover
85
Evans’ written statement was not inexcusable neglect (I
Tr. 118-19). The same is true of counsel's failure to dis-
cover Worthy’s testimony. Petitioner’s counsel represents,
and the state has not disputed, that counsel did conduct
an investigation of a possible Massiah claim prior to the
first federal petition, including interviewing “two or
three jailers.” Petitioner’s Post-Hearing Reply Brief at 5.
The state has made no showing of any reason that peti-
tioner or his counsel should have known to interview
Worthy specifically with regard to the Massiah claim. The
state argues that petitioner’s counsel should have at least
interviewed Detectives Harris and Dorsey and Deputy
Hamilton. Given that all three denied any knowledge of a
request to move Evans next to McCleskey, it is difficult to
see how conducting such interviews would have allowed
petitioner to assert this claim any earlier. See Ross v. Kemp,
785 F.2d 1467, 1478 (11th Cir. 1986) (remanding for evi-
dentiary hearing on inexcusable neglect where peti-
tioner’s counsel may have relied on misrepresentations
by the custodian of the relevant state records).
In short, the petitioner’s Massiah claim as it is cur-
rently framed is not an abuse of the writ because it is
distinct from the Massiah claim originally raised in his
first state petition and because it is based on new evi-
dence. Petitioner’s failure to discover this evidence ear-
lier was not due to inexcusable neglect. Because this
claim is not an abuse of the writ it is not a successive
petition under section 2244(b) and therefore the court
need not inquire whether the petitioner has made a color-
able showing of factual innocence, if that showing is now
the equivalent of the “ends of justice.” Kuhlmann, 106
S.Ct. at 2628 n. 18.
86
3. Conclusions of Law.
The Eleventh Circuit recently summarized the peti-
tioner’s burden in cases such as this:
In order to establish a violation of the Sixth
Amendment in a jailhouse informant case, the
accused must show (1) that a fellow inmate was
a government agent; and (2) that the inmate
deliberately elicited incriminating statements
from the accused.
Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir. 1987).
The coincidence of similar elements first led the Supreme
Court to conclude that such a defendant was denied his
sixth amendment right to assistance of counsel in Massiah
v. United States, 377 U.S. 201 (1964). In that case, the
defendant's confederate cooperated with the government
in its investigation and allowed his automobile to be
“bugged.” The confederate subsequently had a conversa-
tion in the car with the defendant during which the
defendant made incriminating statements. The confeder-
ate then testified about the defendant’s statements at the
defendant’s trial. The Supreme Court held that the defen-
dant had been “denied the basic protections of [the sixth
amendment] when it was used against him at his trial
evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had
been indicted and in the absence of his counsel.” Id. at
206.6
The Supreme Court applied its ruling in Massiah to
the jailhouse informant situation in United States v. Henry,
447 U.S. 264 (1980). In that case, a paid informant for the
FBI happened to be an inmate in the same jail in which
87
defendant Henry was being held pending trial. An inves-
tigator instructed the informant inmate to pay particular
attention to statements made by the defendant, but
admonished the inmate not to solicit information from
the defendant regarding the defendant's indictment for
bank robbery. The inmate engaged the defendant in con-
versations regarding the bank robbery and subsequently
testified at trial against the defendant based upon these
conversations. The Supreme Court held that the inmate
had deliberately elicited incriminating statements by
engaging the defendant in conversation about the bank
robbery. Id. at 271. It was held irrelevant under Massiah
whether the informant questioned the defendant about
the crime or merely engaged in general conversation
which led to the disclosure of incriminating statements
about the crime. Id. at 271-72 n. 10. Although the govern-
ment insisted that it should not be held responsible for
the inmate's interrogation of the defendant in light of its
specific instructions to the contrary, the Court held that
employing a paid informant who converses with an
unsuspecting inmate while both are in custody amounts
to “intentionally creating a situation likely to induce [the
defendant] to make incriminating statements without the
assistance of counsel.” Id. at 274.7
Given the facts established earlier, petitioner has
clearly established a Massiah violation here. It is clear
from Evans’ written statement that he did much more
than merely engage petitioner in conversation about peti-
tioner’s crimes. As discussed earlier, Evans repeatedly
lied to petitioner in order to gain his trust and to draw
him into incriminating statements. Worthy’s testimony
88
establishes that Evans, in eliciting the incriminating state-
ments, was acting as an agent of the state. This case is
completely unlike Kuhlmann v. Wilson, 106 S.Ct. 2616
(1986), where the Court found no Massiah violation
because the inmate informant had been a passive listener
and had not deliberately elicited incriminating statements
from the defendant. Here, Evans was even more active in
eliciting incriminating statements than was the informant
in Henry. The conclusion is inescapable that petitioner's
sixth amendment rights, as interpreted in Massiah, were
violated.
However, “[n]ot every interrogation in violation of
the rule set forth in Massiah . . . mandates reversal of a
conviction.” United States v. Kilrain, 566 F. 2d 979, 982 (5th
Cir. 1978). Instead, “the proper rule [is] one of exclusion
of tainted evidence rather than a per se standard of rever-
sal if any constitutional violation ha[s] occurred.” Id. n. 3,
citing Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977);
United States v. Hayles, 471 F.2d 788, 793, cert. denied, 411
U.S. 969 (5th Cir. 1973). In other words, “certain viola-
tions of the right to counsel may be disregarded as harm-
less error.” United States v. Morrison, 449 U.S. 361, 365
(1981), citing Chapman v. California, 386 U.S. 18, 23 n. 8
(1967). To avoid reversal of petitioner’s conviction the
state must “prove beyond a reasonable doubt that the
error complained of [the use at petitioner's trial of his
own incriminating statements obtained in violation of his
sixth amendment rights] did not contribute to the verdict
obtained.” Chapman, 386 U.S. at 24. See also Brown wv.
Dugger, No. 85-6082, Slip Op. at 511-12 (11th Cir. Novem-
ber 13, 1987).
89
Once the fact of the Massiah violation in this case is
accepted, it is not possible to find that the error was
harmless. A review of the evidence presented at the peti-
tioner’s trial reveals that Evans’ testimony about the peti-
tioner’s incriminating statements was critical to the
state’s case. There were no witnesses to the shooting and
the murder weapon was never found. The bulk of the
state’s case against the petitioner was three pronged: (1)
evidence that petitioner carried a particular gun on the
day of the robbery that most likely fired the fatal bullets;
(2) testimony by co-defendant Ben Wright that petitioner
pulled the trigger; and (3) Evans’ testimony about peti-
tioner’s incriminating statements. As petitioner points
out, the evidence on petitioner’s possession of the gun in
question was conflicting and the testimony of Ben Wright
was obviously impeachable.® The state also emphasizes
that Evans testified only in rebuttal and for the sole
purpose of impeaching McCleskey’s alibi defense. But the
chronological placement of Evans’ testimony does not
dilute its impact — “merely” impeaching the statement “I
didn’t do it” with the testimony “He told me he did do it”
is the functional equivalent of case in chief evidence of
guilt.
For the foregoing reasons, the court concludes that
petitioner's sixth amendment rights, as interpreted in
Massiah, were violated by the use at trial of Evans’ testi-
mony about the petitioner’s incriminating statements
because those statements were deliberately elicited by an
agent of the state after petitioner’s indictment and in the
absence of petitioner’s attorney. Because the court cannot
say, beyond a reasonable doubt, that the jury would have
RE EEE
90
convicted petitioner without Evans’ testimony about peti-
tioner’s incriminating statements, petitioner’s conviction
for the murder of Officer Schlatt must be reversed pend-
ing a new trial.®
Unfortunately, one or more of those investigating
Officer Schlatt’s murder stepped out of line. Determined
to avenge his death, the investigator(s) violated clearly-
established case law, however artificial or ill-conceived it
might have appeared. In so doing, the investigator(s)
ignored the rule of law that Officer Schlatt gave his life in
protecting and thereby tainted the prosecution of his
killer.
B. Mooney Claim.
Petitioner's Mooney claim is based upon the state’s
use at trial of misleading testimony by Offie Evans, which
petitioner contends violated his eighth amendment rights
and his right to due process of law under the fourteenth
amendment. See Mooney v. Holohan, 294 U.S. 103, 112
(1935) (criminal conviction may not be obtained using
testimony known to be perjured). In particular, petitioner
contends that the state failed to correct Evans’ misleading
testimony regarding his real interest in testifying against
petitioner, regarding the circumstances surrounding his
cooperation with the state, and regarding petitioner's
confession of having shot Officer Schlatt. Petitioner
alleges that the newly discovered statement of Offie
Evans reveals these misleading elements of Offie Evans’
testimony at trial.
91
Petitioner’s allegation that the state misled the jury
with Offie Evans’ testimony that he was a disinterested
witness is actually a restatement of petitioner’s Giglio
claim. The allegation that the state misled the jury with
Offie Evans’ testimony that he happened to inform the
state of petitioner’s incriminating statements, when in
fact the evidence suggests that Offie Evans may have
been an agent of the state, is a restatement of petitioner’s
Massiah claim. Consequently, only the allegations of mis-
leading testimony regarding the actual shooting need to
be addressed as allegations supportive of a separate
Mooney claim.
As a preliminary matter, the failure of petitioner to
raise this claim in his first federal habeas petition raises
the question of abuse of the writ. Because this claim is
based upon the newly discovered statement of Offie
Evans, the same conclusion reached as to the Massigh
claim obtains for this claim. It was not an abuse of the
writ to fail to raise the Massiah claim earlier and it was
not an abuse of the writ to have failed to raise this claim
earlier.
However, on its merits the claim itself is unavailing.
In order to prevail on this claim, petitioner must establish
that the state did indeed use false or misleading evidence
and that the evidence was “material” in obtaining peti-
tioner’s conviction or sentence or both. Brown v. Wain-
wright, 785 F.2d 1457, 1465 (11th Cir. 1986). The test for
materiality is whether there is “any reasonable likelihood
that the false testimony could have affected the judgment
of the jury.” Id. at 1465-66 (quoting United States v. Bagley,
ES.
. 92
___ US. __, 105 S.Ct. 3375, 3382 (1985) (plurality)). Peti-
tioner’s allegations of misleading testimony regarding his
confession fail for two reasons.
First, no false or misleading testimony was admitted
at trial. A comparison of Offie Evans’ recently discovered
statement and his testimony at trial reveals substantially
identical testimony regarding McCleskey’s confession
that he saw the policeman with a gun and knew there
was a choice between getting shot by the policeman or
shooting the policeman. Compare Pet. Exhibit E, at 6 with
Trial Tr. at 870. While Offie Evans did use the word
“panic” in his written statement when describing this
dilemma, the addition of this word adds nothing to the
substance of the trial testimony, which conveyed to the
jury the exigencies of the moment when petitioner fired
upon Officer Schlatt. Second, even if the omission of this
one phrase did render the testimony of Offie Evans mis-
leading, this claim would fail because there is no reason-
able likelihood that the jury’s judgment regarding
petitioner’s guilt and his sentencing would have been
altered by the addition of the phrase “panic” to otherwise
substantially identical testimony.
C. Caldwell Claim.
Petitioner’s third new claim is based upon references
by the prosecutor at petitioner’s trial to appellate review
of the jury sentencing decision and to the reduction on
appeal of prior life sentences imposed on petitioner.
These references are said to have violated petitioner's
eighth amendment rights and right to due process of law
as guaranteed by the fourteenth amendment.
93
To the extent petitioner claims that the reference to
the reduction of prior life sentences was constitutionally
impermissible in that it led the jury to impose the death
penalty for improper or irrelevant reasons, see Tucker v.
Francis, 723 F.2d 1504 (11th Cir. 1984), this claim comes
too late in the day. Petitioner was aware of these com-
ments at the time he filed his first federal habeas petition
but did not articulate this claim at that time. Because the
state has pled abuse of the writ, petitioner must establish
that the failure to raise this claim during the first federal
habeas proceeding was not due to intentional abandon-
ment or inexcusable neglect. Petitioner has offered no
excuse for not raising this claim before. He was repre-
sented by competent counsel at the time and should not
be heard to argue that he was unaware that these facts
would support the claim for habeas relief. Indeed, this
court recognized the potential for such a claim when
passing upon the first federal habeas petition and con-
cluded “it has not been raised by fully competent coun-
sel.” McCleskey v. Kemp, 580 F. Supp. at 388 n. 27.
Successive petition and abuse of the writ problems
also plague this claim to the extent that petitioner is
arguing that the prosecutor’s reference to the appellate
process somehow diminished the jury’s sense of respon-
sibility during the sentencing phase. This claim in due
process terms was presented to this court by the first
federal habeas petition and rejected. McCleskey v. Zant,
580 F. Supp. at 387-88 (citing inter alia Corn v. Zant, 708
F.2d 549, 557 (11th Cir. 1983)). Petitioner has offered no
reason that the ends of justice would be served by re-
visiting this due process claim.
EE EEE———————————
94
Petitioner also argues that reference to the appellate
process violated his eighth amendment rights. Although
petitioner did not articulate this eighth amendment claim
at the time of the first federal habeas proceeding, the
failure to raise the claim at that time does not amount to
an abuse of the writ. Only after this court ruled upon the
first federal habeas petition did the Supreme Court indi-
cate that it is a violation of the eighth amendment “to rest
a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for
determining the appropriateness of the defendant’s death
rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320,
328-29 (1985). This circuit has recently held that failure to
raise a Caldwell claim in a first federal habeas petition
filed before the decision does not amount to abuse of the
writ because there has been a change in the substantive
law. Adams v. Dugger, 816 F.2d 1493, 1495-96 (11th Cir.
1987) (per curiam).
Although this court must reach the merits of the
Caldwell claim, the claim itself fails for the same reasons
that the due process prong of this claim failed. The essen-
tial question is whether the comments likely caused the
jury to attach diminished consequences to their delibera-
tions on the death penalty. See McCleskey v. Zant, 580 F.
Supp. at 388. A review of the prosecutor’s actual com-
ments at petitioner’s trial does not reveal any impermiss-
ible suggestions regarding the appellate process which
would have led the jury to believe that the responsibility
for imposing the death penalty rested elsewhere. As this
court observed when passing upon the due process claim
raised by the first petition,
95 »
The prosecutor’s arguments in this case did not
intimate to the jury that a death sentence could
be reviewed or set aside on appeal. Rather, the
prosecutor’s argument referred to petitioner’s
prior criminal records and the sentences he had
received. The court cannot find that such argu-
ments had the effect of diminishing the jury’s
sense of responsibility for its deliberations on
petitioner’s sentence. Insofar as petitioner
claims that the prosecutor’s arguments were
impermissible because they had such an effect,
the claim is without merit.
McCleskey v. Zant, 580 F. Supp. at 388.
D. Batson Claim.
Petitioner’s final claim rests upon the alleged system-
atic exclusion of black jurors by the prosecutor at peti-
tioner’s trial. This exclusion is said to have violated
petitioner’s right to a representative jury as guaranteed
by the sixth and fourteenth amendments.
This claim was not raised during the first federal
habeas proceedings. However, failure to raise this claim
could not be said to constitute abuse of the writ because
prior to the Supreme Court’s decision in Batson v. Ken-
tucky, US. 107 S.Ct. 708(1957), petitioner could
not have made out a prima facie claim absent proof of a
pattern of using preemptory strikes to exclude black
jurors in trials other than petitioner’s. See id. at 710-11.
(citing Swain v. Alabama, 380 U.S. 202 (1965)).
Although petitioner did not abuse the writ by failing
to raise this claim earlier, the claim itself lacks merit. The
holding in Batson, which allows defendants to make the
’ 96
prima facie showing of an unrepresentative jury by pro-
ving a systematic exclusion of blacks from their own jury,
has not been given retroactive application. The Batson
decision does not apply retroactively to collateral attacks
“where the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition
for certiorari had elapsed” before the Batson decision.
Allen v. Hardy, ___ U.S. ___, 106 S.Ct. 2878, 2880 n. 1 (1986)
(per curiam). Although the Allen decision did not involve
a habeas petitioner subject to the death penalty, this
circuit has specifically held that Batson may not be
applied retroactively even to a habeas petitioner subject
to the death penalty. See Lindsey v. Smith, 820 F.2d 1137,
1145 (11th Cir. 1987); High v. Kemp, 819 F.2d 988, 992 (11th
Cir. 1987).
VI. OTHER MOTIONS.
Also pending before this court are petitioner’s
motions for discovery and for leave to exceed this court’s
page limits. The court presumes that the above resolution
of the petitioner's various claims and the evidentiary
hearing held in this case obviate the need for any further
discovery. Petitioner's motion for discovery, filed before
the evidentiary hearing, does not provide any reason to
think otherwise. The motion for discovery is therefore
DENIED. The motion to exceed page limits is GRANTED.
VII. CONCLUSION.
In summary, the petition for a writ of habeas corpus
is DENIED as to petitioner's Giglio, intentional discrimi-
nation, and Ake claims because those claims are
97
successive and do not fall within the ends of justice
exception. The petition for a writ of habeas corpus is
DENIED as to petitioner's Mooney, Caldwell and Batson
claims because they are without merit. Petitioner’s
motion for discovery is DENIED and his motion to
exceed page limits is GRANTED. The petition for a writ
of habeas corpus is GRANTED as to petitioner’s Massiah
claim unless the state shall re-try him within 120 days of
the receipt of this order.
SO ORDERED, this 23rd day of December, 1987.
/s/ J. Owen Forrester
: TER
UNITED STATES DISTRICT
JUDGE
(ENTERED DEC 24 1987)
FOOTNOTES
1 Petitioner was also convicted on two counts of armed
robbery and sentenced to two consecutive life sentences.
2 Another distinct ground for finding excusable neglect is
a showing that the petitioner did not realize that the facts of
which he had knowledge could constitute a basis for which
federal habeas corpus relief could be granted. Booker v. Wain-
wright, 764 F.2d 1371, 1376 (11th Cir. 1985). Although “[tlhe
exact scope of this alternative exception to the abuse of writ
doctrine lacks adequate definition,” id., it would appear from
the cases that it applies only when the petitioner appeared pro
se in presenting the first habeas petition. See, e.g., Haley v.
Estelle, 632 F.2d 1273, 1276 (5th Cir. 1980).
EE EEEEEE———————————.
98
3 “...[Wl]e hold that the Baldus study does not demon-
strate a constitutionally significant risk of racial bias affecting
the Georgia capital-sentencing process.” Powell, ]., for the major-
ity). McCleskey v. Remp, __ US. __, 107 S.Ct. 1759 at 1778
(1987).
4 See the discussion of McCleskey’s Massiah claim infra.
> References to the transcripts of the July 8, July 9, and
August 10, 1987 hearings will be to “I TR.,” “II Tr.,” and “III
Tr.,” respectively.
¢ Dissenting Justice White, joined by Clark and Harland,
J]., protested the new “constitutional rule. . . barring the use of
evidence which is relevant, reliable and highly probative of the
issue which the trial court has before it.” 377 U.S. at 208. The
dissenters were “unable to see how this case presents an
unconstitutional interference with Massiah’s right to counsel.
Massiah was not prevented from consulting with counsel as
often as he wished. No meetings with counsel were disturbed
or spied upon. Preparation for trial was in no way obstructed.
It is only a sterile syllogism — an unsound one, besides — to say
that because Massiah had a right to counsel’s aid before and
during the trial, his out-of-court conversations and admissions
must be excluded if obtained without counsel’s consent or
presence.” Id. at 209.
The dissenters highlighted the incongruity of overturning
Massiah’s conviction of these facts. “Had there been no prior
arrangements between [the confederate] and the police, had
[the confederate] simply gone to the police after the conversa-
tion had occurred, his testimony relating Massiah’s statements
would be readily admissible at the trial, as would a recording
which he might have made of the conversation. In such event,
it would simply be said that Massiah risked talking to a friend
who decided to disclose what he knew of Massiah’s criminal
activities. But if, as occurred here, [the confederate] had been
cooperating with the police prior to his meeting with Massiah,
both his evidence and the recorded conversation are somehow
transformed into inadmissible evidence despite the fact that
the hazard to Massiah remains precisely the same — the defec-
tion of a confederate in crime.” Id. at 211.
gg,
7 Justice Rehnquist, dissenting, questioned the validity of
Massiah: “The exclusion of respondent’s statements has no
relationship whatsoever to the reliability of the evidence, and
it rests on a prophylactic application of the Sixth Amendment
right to counsel that in my view entirely ignores the doctrinal
foundation of that right.” 447 U.S. at 289. Echoing many of the
concerns expressed by Justice White in Massiah, id. at 290,
Justice Rehnquist argued that “there is no constitutional or
historical support for concluding that an accused has a right to
have his attorney serve as a sort of guru who must be present
whenever an accused has an inclination to reveal incriminating
information to anyone who acts to elicit such information at
the behest of the prosecution.” Id. at 295-96. Admitting that the
informants in Henry and in Massiah were encouraged to elicit
information from the respective defendants, Justice Rehnquist
“doubt[ed] that most people would find this type of elicitation
reprehensible.” Id. at 297.
For criticism of Henry for extending Massiah “despite that
decision’s doctrinal emptiness” and for giving Massiah “a
firmer place in the law than it deserves,” see Salzburg, Forward:
The Flow and Ebb of Constitutional Criminal Procedure in the
Warren and Burger Courts, 69 Geo.L.J. 151, 206-08 (1980).
8 There is some question whether Ben Wright's testimony
on the fact of the murder would have been admissible at all
absent corroboration by Evans’ testimony. See O.C.G.A. §24-4-8
(uncorroborated testimony of an accomplice not sufficient to
establish a fact). But see McCleskey v. Kemp, 753 F.2d at 885
(Wright's testimony corroborated by McCleskey’s admitted
participation in the robbery; corroboration need not extend to
every material detail).
® Here, as in Massiah and Henry, the evidence is excluded
and the conviction consequently reversed despite the fact that
the evidence is “relevant, reliable and highly probative” of
petitioner’s guilt. Massiah, 377 U.S. at 208 (White, J., dissent-
ing). There is no question that petitioner's incriminating state-
ments to Evans were made voluntarily and without coercion.
Had Evans been merely a good listener who first obtained
McCleskey’s confession and then approached the authorities,
Evans’ testimony would have been admissible. The substance
EEE
100
of the evidence would have been no different, McCleskey’s risk
in speaking would have been no different, and McCleskey’s
counsel would have been no less absent, but the evidence
would have been admissible simply because the state did not
intentionally seek to obtain it. While this court has grave
doubts about the historical and rational validity of the
Supreme Court's present interpretation of the sixth amend-
ment, those doubts have been articulated ably in the dissents
of Justice White and Justice Rehnquist. See supra, notes 4 and 5.
Until the Supreme Court repudiates its present doctrine this
court will be obliged to reach the result it reaches today.
101
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
(Caption Omitted In Printing)
JUDGMENT
The Court, Honorable J. OWEN FORRESTER, United
States District Judge, by order of this date, having
GRANTING the petition for a writ of habeas corups, (sic)
DIRECTING, the petitioner to re-try defendant within 120
days from receipt of the 12/23/87 order.
JUDGMENT is hereby entered in favor of the peti-
tioner and against the respondent.
Dated at Atlanta, Georgia, this 15 day of January,
1988.
with permission of the court Nunc pro tunc for
December 23, 1987.
LUTHER D. THOMAS, Clerk
By: illegible
Deputy Clerk
RE ———————————
102
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
(Caption Omitted In Printing)
ORDER
This matter is before the court on respondent’s
motion to reopen judgment. Fed. R. Civ. P. 60(b).
1. FACTS,
This petition for writ of habeas corpus was filed July
7, 1987. With the petition was a motion for stay of execu-
tion. This court granted the stay of execution verbally
July 9, 1987, and in a formal order July 10, 1987. A two-
day hearing was held on the petition for writ of habeas
corpus July 8 and 9, 1987. The court continued the evi-
dentiary hearing until August 10, 1987. On December 23,
1987 the court granted in part and denied in part the
petition for writ of habeas corpus, and judgment was
entered the same day. Respondent appealed, and peti-
tioner cross-appealed. The judgment was stayed by the
court March 9, 1988. The pending motion for relief from
final judgment based on newly discovered evidence was
filed May 6, 1988. The court entered an order allowing
discovery until August 1, 1988 on the two issues of due
diligence and of the previously unavailable witness, Offie
Evans’ knowledge.
Respondent seeks to reopen the December 1987 judg-
ment based on the present availability of Offie Evans.
Evans was a witness at petitioner’s trial. The evidentiary
hearings on the petition for writ of habeas corpus
revealed that Evans had been moved purposely to a cell
103
adjacent to McCleskey’s in order to elicit information
from him. The court found that this was a violation of the
Massiah doctrine. See Order, December 23, 1987. Evans
did not testify at the evidentiary hearings on the habeas
corpus petition.
Petitioner attempted to locate Mr. Evans during the
July hearings in order for him to testify. An attorney
working with petitioner's counsel made repeated phone
calls to Offie Evans’ sister looking for Mr. Evans. He was
not able to reach Mr. Evans, but did get the address of
another sister who he was supposedly staying with at the
time. The attorney made repeated visits to the sister’s
house in order to try and find Mr. Evans. The attorney
was told that Mr. Evans came by the residence every now
and then but was not staying there. Stevenson Affidavit.
Petitioner also hired an investigator, T. Delaney Bell, to
help locate Mr. Evans. The investigator visited several
addresses of both Mr. Evans and relatives, over a four-
day period in June 1987. The investigator contacted fam-
ily members again on July 6, 1987 and was told that they
did not know where he was staying. Bell Aff. During the
July 8th hearing the court noted that the federal marshal
had tried to serve Mr. Evans at a sister’s house but the
sister did not know where he was. Respondent made no
efforts to contact or locate Mr. Evans.
The respondent sent two letters to petitioner in the
period between the July and August hearings to notify
petitioner’s counsel of the witnesses he would call in the
August hearing. Both of those letters referred to the
respondent’s intent to re-call witnesses who had previ-
ously testified in the July hearings, but neither mentioned
any desire or intention to call Mr. Evans as a witness. In
ES
104
April 1988, counsel for respondent learned that Mr. Evans
was in the Fulton County Jail on other charges. Respon-
dent now seeks to set aside the judgment in order to take
the testimony of Offie Evans.
II. CONCLUSIONS OF LAW.
Petitioner has moved this court to expand the record
to include: discovery conducted pursuant to the court’s
order of June 17, 1988; Affidavits of Stevenson, Bell and
Hashimi; Docket Sheet, United States v. Offie Gene Evans,
No. 28027; Sentence, Fulton Superior State Court v. Offie
Evans, No. A-16523 (May 15, 1973); and a newspaper
clipping, Atlanta Constitution, December 24, 1987. Peti-
tioner’s two motions are unopposed, and for good cause
shown petitioner's motion to expand the record, and
second motion to expand the record are GRANTED.
Rule 60(b)! defines the circumstances under which a
party may obtain relief from a final judgment. It should
be construed in order to do substantial justice, but this
does not mean that final judgment should be lightly
reopened. The desirability for order and predictability in
1 Respondent’s motion is based on Rule 60(b)(2) and (6).
The rule says,
On motion and upon such terms as are just, the court
may relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for the
following reasons; . . . (2) newly discovered evidence
which by due diligence could not have been discov-
ered in time to move for a new trial under Rule
59(b); . . . (6) any other reason justifying relief from
the operation of the judgment.
105
the judicial process speaks for caution in the reopening of
judgments. Griffin v. Swim-Tech Corp., 722 F.2d 677 (11th
Cir. 1984). The provisions of this rule must be carefully
interpreted to preserve the delicate balance between the
sanctity of final judgments and the “incessant command
of the court’s conscience that justice be done in light of all
the facts.” Id., citing Bankers Mortgage Company v. United
States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927
(1970) (emphasis in original). Rule 60(b) motions are
directed to the sound discretion of the district court.
Because a motion for new trial under Rule 60(b) is an
extraordinary motion, the requirements of the rule must
be strictly met. Seutieri v. Paige, 808 F.2d 785 (11th Cir.
1987).
A. Rule 60(b)(2).
In order to succeed under 60(b)(2), a party must
satisfy a five-part test: 1) the evidence must newly dis-
covered since the trial; 2) due diligence on the part of the
movant to discover the new evidence must be shown; 3)
the evidence must not be merely cumulative or impeach-
ing; 4) the evidence must be material; and 5) the evidence
must be such that a new trial would probably produce a
new result. Seutieri, 808 F.2d at 793; see also, Taylor v.
Texgas Corp., 831 F.2d 255 (11th Cir. 1987).
1. New discovered.
Offie Evans’ identity has been known to the state
since the initial trial. The respondent contends this is
newly discovered evidence because Evans has not been
able to testify about the question which became crucial in
SS
106
this petition for habeas corpus; that is, the relationship
between himself and the police, and whether he was
directed by the authorities to elicit incriminating state-
ments from McCleskey. Evans has given evidence at least
three times in this case, in the original trial, the state
habeas proceeding, and in his statement given in August
1978. Moreover, petitioner points out that in October
1981, Mr. Evans gave a deposition in the case of
McCleskey’s co-defendant, Bernard Depree. That deposi-
tion was filed in a federal habeas petition on behalf of
Depree, in which the state was represented by respon-
dent’s present counsel. Petitioner contends that this
deposition includes testimony about his contacts with the
Atlanta Police while in the Fulton County Jail in 1978,
and denials that he made police contacts until after he
had spoken with Mr. McCleskey. Petitioner points out
that the testimony in that deposition is contradictory to
the testimony given in the deposition taken pursuant to
this motion, but that the essentials are the same.
In light of the above discussion, it is apparent that
Evans’ testimony is not truly newly discovered but rather
is merely newly produced. See, Johnson Waste Materials v.
Marshal, 611 F.2d 593 (5th Cir. 1980) (checks and records
which had been misplaced at time of trial were not newly
discovered evidence sufficient to support 60(b)(2)
motion). The fact that the essential substance of this
testimony was in a previous deposition filed in the public
records and known to respondent’s counsel also indicates
it is not newly discovered. Seutieri, 808 F.2d at 794 (evi-
dence contained in public records at time of trial cannot
be considered newly discovered evidence); Taylor, 831
F.2d at 255 (evidence cannot be newly discovered if in
107
possession of moving party or his attorney prior to entry
of judgment). Where the movant was aware of a witness's
identity and knowledge of the transaction, and chose not
to track him down because of the expense, the evidence is
not newly discovered because he was aware of the exis-
tence of the evidence before the trial. Parrilla-Lopez v.
United States, 841 F.2d 16 (1st Cir. 1988). Similarly, in this
case, the government was aware of the witness’s exis-
tence, identity and relationship to the transaction but did
not attempt to have him testify at trial. It is evident that
Offie Evans’ testimony is not truly newly discovered
under the relevant authority.
2. Due Diligence.
In the June 17, 1988 order, the court noted that
Respondent’s “due diligence is measured by what the
respondent knew at the time. That would include what
the respondent knew about petitioner’s effort to locate
Offie Evans. That is not necessarily the sum total of his
knowledge nor do the petitioner’s efforts to locate Evans
relieve him of any obligation to utilize resources available
to him.”
Respondent contends that though he did not make
any efforts to track down Offie Evans during the summer
of 1987, it was apparent from the activities of the peti-
tioner that such actions would be futile.2 Petitioner points
2 It appears that respondent's knowledge of petitioner’s
efforts to locate Evans came only from petitioner’s counsel's
statements at the evidentiary hearings.
EE EE E————————————————
108
out that the Atlanta Bureau of Police Services has enjoyed
a special relationship with Mr. Evans over the years, and
that if the department had been looking for him, Mr.
Evans might have made himself available or with those
larger resources could have been found. Petitioner espe-
cially points to the testimony of Assistant District Attor-
ney Russ Parker that he had no information or leads as to
Evans’ location, but that he “could probably find him. [I
have] spend enough time with him.” I Tr. 174.
Discovery pursuant to this motion reveals that
respondent made no efforts to locate Evans during the
summer of 1987. See, Respondent's Answer to First Inter-
rogatories of Petitioner, No. 1. Respondent now contends
that the deposition of Evans shows that he was outside of
Atlanta, and respondent would not have been able to
locate him anyway. However, the affidavits of petitioner's
assistants show that Evans’ relatives had seen him at
various times during petitioner’s search for him. There-
fore, it is unclear where exactly Mr. Evans was at the time
and whether or not he could have been found. Moreover,
it is not good enough merely to say that it would be
impossible to find the evidence. Due diligence is mea-
sured by respondent’s knowledge and actions. The stan-
dard under 60(b)(2) is that the movant exercise due
diligence in order to find the relevant evidence before
entry of judgment. Respondent relied on petitioner’s
actions in seeking Mr. Evans, but made no efforts of his
own. As the court previously noted, petitioner’s efforts
did not relieve respondent of any obligation to utilize his
own resources to locate Evans. Movant has not demon-
strated the due diligence prong of the 60(b)(2) standard.
109
3. Evidence is Not Cumulative or Impeaching;
Materiality.
Evans’ deposition testimony essentially asserts that
he was not moved intentionally to be placed next to
McCleskey, and in fact was not moved at all, and was not
an informant. His testimony goes directly to the issue
involved, and therefore is material. However, there are
numerous internal contradictions within the deposition,
and contradictions with Evans’ previous statements, or
the statements of other witnesses. Also, it is clear that Mr.
Evans has his own motives for denying his status as an
informant. He expressed concern several times during his
deposition about newspaper accounts which had labeled
him an informant, because that kind of information could
get a man killed. Evans Depo., p. 25.
4. Likelihood of Producing a Different Result.
It is unlikely Evans’ testimony would produce a dif-
ferent result. The credibility or believability problems
with his testimony are evident. He has a strong motiva-
tion for saying he was not an informant, not only because
of recriminations from his associates, but also in order to
stay in favor with the police and prosecutors who have
used him to testify in the past. The numerous contradic-
tions within his deposition also lead the court to the
conclusion that his testimony would not be believable.
See Petitioner’s Brief in Response to Respondent’s Sup-
plement to Rule 60(b) Motion. In finding a Massiah viola-
tion, the court relied on the testimony of Officer Ulysses
Worthy that someone requested his permission to move
Evans to be near McCleskey, Order, December 23, 1987, p-
III
110
18, even in the face of other law enforcement personnel
who denied requesting that Evans be moved or having
any knowledge of such a request. Order, p. 19. The court
relied on Worthy’s testimony and noted that “[t]he lack of
corroboration by other witnesses is not surprising; the
other witnesses, like Assistant District Attorney Parker,
had no reason to know of a request to move Evans or, like
Detective Dorsey, had an obvious interest in concealing
any such arrangement. Worthy, by contrast, had no
apparent interest or bias that would explain any con-
scious deception.” Order, p. 22. Therefore, Evans’ testi-
mony is not likely to change the credibility of Worthy’s
testimony or the fact that petitioner showed by a prepon-
derance of the evidence that a Massiah violation occurred.
Therefore, for the above reasons, respondent’s
motion under 60(b)(2) is DENIED.
B. Rule 60(b)(6).
Rule 60(b)(6) grants federal courts broad authority to
relieve a party from a final judgment “upon such terms as
are just” provided the motion is made within a reason-
able time and is not premised on one of the grounds in
(b)(1) through (b)(5). Liljeberg v. Health Services Acquisition
Corp., __ US. __, 56 US.L.W. 4637, 4642 (1988). This
ground should be applied only in exceptional circum-
stances. Id. The party seeking relief under 60(b)(6) has the
burden of showing that absent such relief, an extreme
and unexpected hardship will result. Griffin, 722 F.2d at
680. Respondent contends that in the unusual circum-
stances of this case, it would serve the ends of justice to
reopen judgment under 60(b)(6). However, respondent
111
has shown no exceptional circumstances outside those
discussed in the Rule 60(b)(2) motion. There is little likeli-
hood that if this motion is denied an extreme hardship
will result to respondent. Therefore, respondent’s motion
under Rule 60(b)(6) is DENIED.
III. CONCLUSION.
In sum, petitioner's two motions to expand record
are GRANTED. Respondent’s motion for relief from final
judgment is DENIED.
SO ORDERED this 6th day of January, 1989.
/s/ J. Owen Forrester
. TER
UNITED STATES DISTRICT
JUDGE
RE...
112
United States Court of Appeals,
Eleventh Circuit.
Warren McCLESKEY,
Petitioner-Appellee,
V.
Walter ZANT, Superintendent, Georgia
Diagnostic and Classification Center,
Respondent-Appellant.
Nos. 88-8085, 89-8085.
Nov. 22, 1989.
As Amended Dec. 13, 1989.
Appeals from the United States District Court for the
Northern District of Georgia.
Before KRAVITCH and EDMONDSON, Circuit
Judges, and RONEY, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
This is a consolidated appeal by the State of Georgia
from the district court’s grant of Warren McCleskey’s
second petition for a writ of habeas corpus and from the
district court’s denial of the State’s motion under
Fed .R.Civ.P. 60(b) for relief from the judgment. The dis-
trict court granted the writ solely on the basis of
McCleskey’s claim that his sixth amendment rights had
been violated under Massiah v. United States, 377 U.S. 201,
84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Because we find that
the district court abused its discretion in failing to dis-
miss McCleskey’s Massiah allegation as an abuse of the
writ, we reverse the district court without reaching the
merits of McCleskey’s Massiah claim or of the State’s Rule
60(b) motion.
113
I. FACTS?
McCleskey was arrested and charged with the mur-
der of a police officer during an armed robbery of the
Dixie Furniture Store. The store was robbed by four men.
Three entered through the back door and one through the
front. Each of the four men was armed. McCleskey had a
.38 caliber Rossi white-handled, nickel-plated pistol, Ben
Wright had a sawed-off shotgun, and the other two had
blue steel pistols. The man who entered through the front
secured the store, forcing the employees to lie on the
floor. The others rounded up the employees in the rear
and began to tie them up with tape. The manager was
forced at gunpoint to turn over the store receipts, his
watch, and six dollars. Responding to a silent alarm, a
police officer entered the store by the front door. He
proceeded approximately fifteen feet down the center
aisle. Two shots were fired. One shot struck the police
officer in the head causing his death. The other shot
glanced off a pocket lighter in the officer's pocket and
lodged in a sofa. That bullet was recovered. The robbers
fled. Sometime later, McCleskey was arrested in connec-
tion with another armed robbery.
McCleskey was identified by two of the store person-
nel as the robber who came in the front door. Shortly after
his arrest, McCleskey confessed to participating in the
robbery, but maintained that he was not the triggerman.
One of his accomplices, Ben Wright, testified that
McCleskey admitted to shooting the officer. Offie Evans,
! The statement of facts is taken from the Georgia Supreme
Court’s opinion on direct appeal, McCleskey v. The State, 245
Ga. 108, 263 S.E.2d 146 (1980).
RE ——————————
114
a jail inmate housed near McCleskey testified that
McCleskey made a “jail house confession” in which he
claimed he was the triggerman. The police officer was
killed by a bullet fired from a .38 caliber Rossi handgun.
Though the weapon was not recovered, McCleskey had
stolen a .38 caliber Rossi in a holdup of a Red Dot grocery
store two months earlier.
II. PRIOR PROCEEDINGS |
The jury convicted McCleskey of murder and two
counts of armed robbery. It sentenced McCleskey to death
for the murder of the police officer and to consecutive life
sentences for the two robbery counts. In 1980, these con-
victions and sentences were affirmed by the Georgia
Supreme Court, McCleskey v. State, 245 Ga. 108, 263 S.E.2d
146, cert. denied, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119
(1980). In January of 1981, McCleskey petitioned for
habeas corpus relief in the Superior Court of Butts
County, asserting over twenty challenges to his convic-
tion and sentence. In an amendment to his petition,
McCleskey alleged a Massiah violation, claiming that the
introduction into evidence of statements he made to an
informer violated his rights under the sixth amendment.
See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199.
The petition was denied after an evidentiary hearing and
the Georgia Supreme Court denied McCleskey’s applica-
tion for a certificate of probable cause to appeal. The
United States Supreme Court denied McCleskey’s peti-
tion for certiorari. McCleskey v. Zant, 454 U.S. 1093, 102
S.Ct. 659, 70 L.Ed.2d 631 (1981).
115
McCleskey filed his first federal habeas petition in
district court in December of 1981, asserting eighteen
grounds for granting the writ. That petition did not
include a claim under Massiah. It did, however, include a
claim under Giglio v. United States, 405 U.S. 150, 92 S.Ct.
763, 31 L.Ed.2d 104 (1972), alleging that the state prosecu-
tor had failed to reveal that Offie Evans, one of its wit-
nesses, had been promised favorable treatment as a
reward for his testimony. In 1984, the district court
granted habeas corpus relief as to McCleskey’s Giglio
claim. It ordered that his conviction and sentence for
malice murder be set aside, but affirmed his convictions
and sentences for armed robbery. McCleskey v. Zant, 580
ESupp. 338 (N.D.Ga. 1984).
Both parties appealed and in 1985, the Eleventh Cir-
cuit, sitting en banc, reversed the district court's grant of
the writ on the Giglio claim and affirmed on all claims
denied by the district court. McCleskey v. Kemp, 753 F.2d
877 (11th Cir.1985) (en banc). McCleskey then filed a
petition for a writ of certiorari in the Supreme Court of
the United States. The Supreme Court granted certiorari
limited to consideration of the application of the Georgia
death penalty and affirmed the Eleventh Circuit.
McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d
262, petition for rehearing denied, 482 U.S. 920, 107 S.Ct.
3199, 96 L.Ed.2d 686 (1987).
McCleskey filed a subsequent petition for a writ of
habeas corpus in state court in June of 1987. In an amend-
ment to that petition, McCleskey once again raised a
Massiah claim, alleging that newly discovered evidence
demonstrated that a jail inmate of McCleskey’s was act-
ing on behalf of the State as an informant. The state court
III
116
granted the State’s motion to dismiss and the Georgia
Supreme Court denied McCleskey’s application for a cer-
tificate of probable cause.
McCleskey filed the present petition for a writ of
habeas corpus in federal district court in July of 1987.
After evidentiary hearings on the petition in July and
August of 1987, the district court entered an order grant-
ing habeas corpus relief only as to McCleskey’s murder
conviction and sentence based upon the finding of a
Massiah violation. McCleskey v. Kemp, No. C87-1517A |
(N.D.Ga. Dec. 23, 1987). |
The State now appeals the district court’s grant of the
writ, claiming that the district court abused its discretion
in failing to dismiss McCleskey’s Massiah allegation as an
abuse of the writ and that the district court erred in
finding a violation of Massiah.2
III. ABUSE OF THE WRIT
A. Background
Under the doctrine of “abuse of the writ,” a federal
court may decline to entertain a second or subsequent
habeas corpus petition that raises a claim that the peti-
tioner did not raise in a prior petition. The doctrine is
2 This court stayed the briefing schedule of the appeal
pending the State’s filing in district court of a motion under
Fed.R.Civ.P. 60(b) for relief from the judgment based on the
availability of witness Offie Evans. The district court denied
the motion and this court granted the State’s motion to consoli-
date the State’s original appeal and its appeal from the denial
of the motion for relief from the judgment.
117
grounded in the court’s equitable power to decline to
entertain a habeas corpus petition properly within its
jurisdiction when “a suitor’s conduct in relation to the
matter at hand . . . disentitle[s] him to the relief he seeks.”
Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078,
10 L.Ed.2d 148 (1963) (quoting Fay v. Noia, 372 U.S. 391,
438, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963)).
The statutory basis for the doctrine of abuse of the
writ in cases of successive petitions for habeas corpus can
be found at 28 U.S.C. § 2244(b)3 and Rule 9(b) of the Rules
Governing Section 2254 Cases in the United States Dis-
trict Courts.# These provisions address the problem of
3 28 U.S.C. § 2244(b) states as follows:
When after an evidentiary hearing on the merits of a
material factual issue, or after a hearing on the
merits of an issue of law, a person in custody pur-
suant to the judgment of a State court has been
denied by a court of the United States or a justice or
judge of the United States release from custody or
other remedy on an application for a writ of habeas
corpus, a subsequent application for a writ of habeas
corpus in behalf of such person need not be enter-
tained by a court of the United States or a justice or
judge of the United States unless the application
alleges and is predicated on a factual or other
ground not adjudicated on the hearing of the earlier
application for the writ, and unless the court, justice,
or judge is satisfied that the applicant has not on the
earlier application deliberately withheld the newly
asserted ground or otherwise abused the writ.
4 Rule 9(b) provides as follows:
Successive Petitions. A second or successive peti-
tion may be dismissed if the judge finds that it fails
(Continued on following page)
I
118
prisoners filing the same claims in successive petitions as
well as the problem of prisoners who abuse the writ by
filing their claims piecemeal. A “successive petition” is
one that raises a claim already adjudicated through a
prior petition, while a petition that raises grounds for
relief not raised in the prior petition is analyzed as an
“abuse of the writ.” See Gunn v. Newsome, 881 F.2d 949,
955 n. 6 (11th Cir.1989) (en banc) (plurality opinion),
petition for cert. filed, No. 89-611, 1989 WL 129621 (Oct. 16,
1989).
A federal court’s decision to exercise its equitable
power to dismiss a petition is based on different consider-
ations in the two types of cases. In cases of successive
petitions, equity usually will not permit a petitioner to
reassert a claim resolved against him “in the hope of
getting before a different judge in multijudge courts.” See
Sec. 2254 Cases R. 9 advisory committee’s note. In cases
of abuse of the writ, equity counsels against allowing
“needless piecemeal litigation” or “collateral proceedings
whose only purpose is to vex, harass, or delay.” Sanders,
373 U.S. at 18, 83 S.Ct. at 1078. In both instances, the need
for finality in criminal law counsels strongly against
courts repeatedly reviewing criminal convictions. See
Kuhlmann v. Wilson, 477 U.S. 436, 452-53, 106 S.Ct. 2616,
2626-27, 91 L.Ed.2d 364 (1986) (plurality opinion).
(Continued from previous page)
to allege new or different grounds for relief and the
prior determination was on the merits or, if new and
different grounds are alleged, the judge finds that
the failure of the petitioner to assert those grounds
in a prior petition constituted an abuse of the writ.
119
The state has the burden of pleading that the habeas
petitioner has abused the writ. Price v. Johnston, 334 U.S.
266, 291-92, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). This
circuit has held that “[t]he state carries its burden by
recounting the petitioner's writ history, identifying the
claims not raised before the instant petition and alleging
that the petitioner abused the writ in violation of 28
U.S.C. § 2254, Rule 9(b).” Booker v. Wainwright, 764 F.2d
1371, 1376 (11th Cir.1985), cert. denied, 474 U.S. 975, 106
S.Ct. 339, 88 L.Ed.2d 324 (1985). The State has clearly met
its burden here, as it is evident that McCleskey did not
assert his Massiah claim in his first federal habeas peti-
tion.
McCleskey’s previous failure to assert the claim does
not, however, require the federal court to dismiss his
petition, for the courts have recognized that “not all
piecemeal litigation is needless.” Booker v. Wainwright, id.;
see also Haley v. Estelle, 632 F.2d 1273, 1276 (5th Cir.1980).5
Once the state has alleged abuse of the writ, the peti-
tioner must be afforded the opportunity to justify his
previous failure to raise the claim. In deciding whether a
petitioner has presented sufficient justification, courts
have required the petitioner to show that he did not
deliberately abandon the claim and that his failure to
raise it was not due to inexcusable neglect. See Woodward
v. Hutchins, 464 U.S. 377, 379, 104 S.Ct. 752, 753, 78
L.Ed.2d 541 (1984) (per curiam) (Powell, J., concurring,
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down before Octo-
ber 1, 1981.
RE ————————————..
120
joined by four other justices); Demps v. Dugger, 874 F.2d
1385, 1391 (11th Cir.1989), petition for cert. filed, No.
89-5277, 1989 WL 113448 (Aug. 4, 1989); Witt v. Wain-
wright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 470 U.S.
1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985); Potts v. Zant,
638 F.2d 727,740-41 (5th Cir. Unit B 1981), cert. denied, 454
U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981).6 If a court
determines that the petitioner has filed to carry his bur-
den of disproving an abuse of the writ, it may dismiss the
petition unless the ends of justice demand that the court
reach the merits. Sanders, 373 U.S. at 16-19, 83 S.Ct. at
1078-79; Demps v. Dugger, 874 F.2d at 1391; Davis v. Kemp,
829 F.2d 1522, 1526 (11th Cir.1937), cerl. denied, ._ US.
108 85.Ct..1099, 99 1L.Ed.2d 262 (19883),
Whether a second or subsequent petition is to be
dismissed on abuse of the writ grounds is left to the
sound discretion of the district court. Sanders, 373 U.S. at
18, 83 S.Ct. at 1079; Darden v. Dugger, 825 F.2d 287, 294
(11th Cir.1987), cert. denied, U.S. ___, 108 S.Ct. 1125, 99
L.Ed.2d 285 (1988); Potts v. Zant, 638 F.2d at 741. Yet
discretion in such matters is not unfettered, and its sound
exercise will rarely permit a district court to hear a peti-
tion that clearly constitutes an abuse of the writ. See Gunn
v. Newsome, 881 F.2d at 949.
In the instant appeal, the district court found that
McCleskey could not be said to have intentionally aban-
doned his claim. We disagree and find that the district
6 In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th
Cir.1982), this court adopted as binding precedent all decisions
of Unit B of the former Fifth Circuit handed down after Sep-
tember 30, 1981.
121
court abused its discretion in failing to dismiss a clearly
abusive petition.
B. Deliberate Abandonment of the Massiah Claim
McCleskey asserts that his failure to raise a Massiah
claim in his earlier federal petition is justified because at
the time he filed that petition, he lacked the evidence to
support such a claim. To demonstrate a violation of sixth
amendment rights under Massiah v. United States, 377 U.S.
201, 84 S.Ct. 1199, a defendant must show that the pros-
ecution deliberately elicited incriminating statements
from him in the absence of his lawyer. Massiah itself
involved statements made by a defendant free on bail to a
co-indictee in a car that had been wired by the govern-
ment. In United States v. Henry, 447 U.S. 264, 100 S.Ct.
2183, 65 L.Ed.2d 115 (1980), the Supreme Court applied
Massiah to a situation in which incriminatory statements
were made to a cellmate who was a government inform-
ant. In Kuhlmann v. Wilson, the Supreme Court stressed
that a defendant alleging a Massiah violation “must dem-
onstrate that the police and their informant took some
action, beyond merely listening, that was designed delib-
erately to elicit incriminating remarks.” 477 U.S. at 459,
106 S.Ct. at 2630.7
7 In Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.1987),
cert. denied, ___ U.S. __, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988),
this circuit characterized petitioner’s burden in a Massiah/
Henry claim as one involving two elements: “In order to estab-
lish a violation of the Sixth Amendment in a jailhouse inform-
ant case, the accused must show (1) that a fellow inmate was a
government agent; and (2) that the inmate deliberately elicited
incriminating statements from the accused.” Id. at 1020.
SII ——.
122
McCleskey bases his Massiah claim on two pieces of
evidence. The first is a 21-page written statement of Offie
Evans, a prisoner who was incarcerated in the cell next to
McCleskey’s when McCleskey was in the Fulton County
Jail awaiting trial. Evans testified against McCleskey at
trial, relating several incriminating statements made by
McCleskey. The written statement, which had been given
to the Atlanta Police Department in August of 1978, sets
out these conversations in great detail, demonstrating
that Evans lied to McCleskey in order to get information
from him.8 McCleskey argues that the written statement
shows evidence of an ab initio relationship between Evans
and the prosecution and is thus highly relevant to his
Massiah claim.
The second piece of evidence McCleskey uses to sup-
port his Massiah claim is the testimony of Ulysses Worthy
who was captain of the day watch at the Fulton County
Jail during the summer of 1978. Worthy testified at two
separate points during the district court hearings on
McCleskey’s second habeas petition. Though Worthy’s
testimony was at times confused and contradictory, the
district court credited Worthy’s assertion that at some
point some officer involved with the case had asked that
Evans be moved to a different cell. The district court
judge relied heavily on Worthy’s testimony in holding
that McCleskey had presented a valid Massiah claim. In
fact, he found that “[t]he lack of corroboration by other
8 For instance, Evans told McCleskey that his name was
Charles, that he was the uncle of codefendant Ben Wright, and
that he was supposed to be a participant in the robbery him-
self.
123
witnesses is not surprising; the other witnesses, like
Assistant District Attorney Parker, had no reason to know
of a request to move Evans or, like Detective Dorsey, had
an obvious interest in concealing any such arrangement.
Worthy, by contrast, had no apparent interest or bias that
would explain any conscious deception.” McCleskey, No.
C87-1517A, slip op. at 22.
McCleskey maintains that he was unaware of both
pieces of evidence critical to his Massiah claim until well
after he filed his first federal habeas petition. It is uncon-
tested that he did not obtain Evans’ statement until July
of 1987 and that he did not know about the existence of
Worthy until the time of the hearing on the second fed-
eral habeas petition. The State strongly contends that
habeas counsel realized or should have realized that
Evans had made a written statement concerning his con-
versations with McCleskey and asserts that petitioner’s
counsel should have made some effort to obtain that
statement. The district court found, however, that
McCleskey was not in fact aware of the written statement,
and we cannot say that this determination is clearly erro-
neous.
Assuming that McCleskey was unaware of both
pieces of evidence, the question before us is whether
McCleskey’s unawareness of the factual bases for his Mas-
siah claim at the time of his first federal habeas petition is
sufficient to justify his failure to present the claim. The
district court found that it was sufficient, holding that
McCleskey’s unawareness precluded a finding of deliber-
ate abandonment of the claim, despite the fact that
McCleskey had raised it in his first state habeas petition.
We disagree.
ER @ Nn ud
124
In finding that McCleskey did not deliberately aban-
don his Massiah claim, the district court stated that:
First petitioner cannot be said to have inten-
tionally abandoned this claim. Although peti-
tioner did raise a Massiah claim in his first state
petition, that claim was dropped because it was
obvious that it could not succeed given the then-
known facts. At the time of his first federal
petition, petitioner was unaware of Evans’ writ-
ten statement, which, as noted above, contains
strong indications of an ab initio relationship
between Evans and the authorities. Abandoning
a claim whose supporting facts only later
become evident is not an abandonment that “for
strategic, tactical, or any other reasons . . . can
be described as the deliberate by-passing of
state procedures.” . . . Petitioner's Massiah claim
is therefore not an abuse of the writ on which no
evidence should have been taken. This is not a
case where petitioner has reserved his proof or
deliberately withheld his claim for a second
petition. . . . Nor is the petitioner now raising an
issue identical to one he earlier considered with-
out merit.
McCleskey, No. C87-1517A, slip op. at 24 (citations omit-
ted).
This holding by the district court misconstrues the
meaning of deliberate abandonment. McCleskey included
a Massiah claim in his first state petition, dropped it in his
first federal petition, and now asserts it again in his
second federal petition.? Given that McCleskey had
® In an amendment to his first state petition, McCleskey
alleged that:
(Continued on following page)
125
asserted the Massiah claim in his first state habeas peti-
tion, it is clear that the issue was not unknown to him at
the time of his first federal petition. Further, we must
assume that at the time McCleskey filed his first state
habeas petition, counsel had determined that there was
some factual basis for a Massiah claim. Indeed, such a
determination is not surprising. Not only was counsel
aware that Evans was in a cell next to McCleskey,° 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.1! The petitioner and his
counsel did not accidentally fail to include the Massiah
claim in the federal petition, but made a knowing choice
not to pursue the claim after having raised it previously.
This constitutes prima facie evidence of deliberate aban-
donment. In Darden v. Dugger, we stated that:
(Continued from previous page)
The introduction into evidence of petitioner’s statements
to an informer, elicited in a situation created to induce
the petitioner to make incriminating statements without
assistance of counsel, violated the petitioner’s right to
counsel under the Sixth Amendment to the Constitution
of the United States and Section 2-111 of the 1976
Constitution of the State of Georgia.
10 Evans testified at trial as to certain statements that
McCleskey had made in prison.
11 In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972), the Supreme Court held that the state
violates due process when it obtains a conviction on the basis
of a witness’s testimony when the witness has failed to dis-
close a promise of favorable treatment from the prosecution.
McCleskey included a Giglio claim in his first state and first
federal habeas petitions.
TTTTTEE—S—S—SS
126
The record shows that the issue presented in
this third petition was specifically withdrawn
from the district court’s consideration as being
not well founded. The issue was abandoned.
Intentional abandonment of a claim is precisely
the context that application of the concept of
abuse of the writ is intended to address. Witt,
755 F.2d at 1397. Petitioner may be deemed to
have waived his right to a hearing on a succes-
sive application for federal habeas relief when
he deliberately abandons one of his grounds at
the first hearing.
825 F.2d at 294.
When asked at the second federal habeas hearing
why he did not pursue the Massigh claim in his first
federal petition, counsel responded that his efforts to find
evidence in support of the claim had failed. It appears,
however, that these efforts were somewhat lacking.
Counsel testified that he informally attempted to contact
jailers at the Fulton County Jail, but that they could
provide him with no information.1?2 He also noted that at
12 At his second federal habeas hearing, the lawyer who
represented McCleskey at the first federal habeas hearing testi-
fied that he “spoke with a couple of Atlanta Bureau of Police
Services Officers” in order to find out how to develop factual
evidence in support of a claim. Pursuant to their suggestion,
counsel spoke with two or three persons who were deputies at
the Fulton County Jail. He testified that “none of them had any
information. Basically they had no recollection of the circum-
stances regarding how Evans came to be assigned to the jail
cell that he was assigned to or of any conversations with the
Atlanta Bureau of Police Services Detectives regarding Offie
Evans’ assignment to that jail cell.”
Counsel apparently made no attempt to contact persons
who clearly had contact with Evans and McCleskey at the
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127
a deposition taken for the first state habeas hearing,
Russell Parker, the District Attorney prosecuting the case,
claimed that he was unaware of any instance in which
Evans had worked for the Atlanta Police Department
prior to his overhearing conversations at the Fulton
County Jail. Counsel testified that he did not carry the
Massiah claim over into the federal habeas petition
because he “looked at what we had been able to develop
in support of the claim factually in the state habeas
proceeding and made the judgment that we didn’t have
the facts to support the claim and, therefore, did not
bring it into federal court.”
Abandoning a claim after initial investigatory efforts
prove unsuccessful cannot insulate a petitioner from
abuse of the writ. See Witt v. Wainwright, 755 F.2d at 1397
(insufficient to allege that evidence was not available if it
was within petitioner's power to elicit such evidence at
time of earlier petition); Woodard v. Hutchins, 464 U.S. 377,
379 & n. 3, 104 S.Ct. 752, 753 & n. 3, 78 L.Ed.2d 541 (1984)
(per curiam) (Powell, J., concurring, joined by four other
justices) (petitioner found to have abused the writ when
he is unable to explain why examination providing evi-
dence of insanity was not conducted earlier); Antone v.
Dugger, 465 U.S. 200, 205 & n. 3, 206, 104 S.Ct. 962, 964 &
n. 3, 965, 79 L.Ed.2d 147 (1984) (per curiam) (haste with
(Continued from previous page)
Fulton County Jail. He testified that he did not speak to Detec-
tive Dorsey (mentioned by Evans in his testimony at the first
state habeas hearing), to Detectives Jowers or Harris (officers
who had investigated the McCleskey case), or Deputy Ham-
ilton (who testified at trial regarding his contact with Mr.
Evans).
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128
which first habeas petition prepared does not require
courts to consider claims withheld from that petition if
substance could have :been presented in first petition).
McCleskey places great emphasis on the fact that the
State allegedly withheld Evans’ 21-page statement from
both trial and habeas counsel. The statement was ulti-
mately obtained in June of 1987 through a request pur-
suant to the Georgia Open Records Act, O.C.G.A.
§ 50-18-72(a). It is clear, however, that the statement itself
does not demonstrate the existence of a Massiah violation.
At most, it was simply the catalyst that caused counsel to
pursue the Massiah claim more vigorously. The key piece
of evidence supporting McCleskey’s Massiah claim was
the testimony of Worthy, who testified for the first time at
the second federal habeas hearing in July of 1987. Coun-
sel claims that he did not discover Worthy until he
engaged in a “massive, indiscriminate effort to subpoena
everyone whose name was mentioned in any document.”
McCleskey has not presented any reason why counsel
would have been unable to contact Ulysses Worthy back
in 1981 when the first federal habeas petition was filed.
Nor has he shown that a more extensive effort at that
time to track down persons with information as to what
transpired in the county jail during the summer of 1978
would not have turned up Worthy. A petitioner and his
counsel may not circumvent the abuse of the writ doc-
trine by failing to follow through with an investigation
and then later asserting that the claim could not have
succeeded earlier on the facts as then known. It will only
be possible to avoid piecemeal litigation if counsel is
ATTIRE
129
required to make a thorough investigation of the facts at
the time of petitioner’s first petition for habeas corpus.12
C. Ends of Justice
Having found that McCleskey abused the writ by
deliberately abandoning his Massiah claim, we must now
decide whether the “ends of justice” require consider-
ation of his claim on the merits.14 Sanders v. United States,
373 US. at 16-19, 83 S.Ct. at 1078-79. In Kuhlmann v.
Wilson, the Supreme Court attempted to give greater con-
tent to the open-ended “ends of justice” inquiry. Its state-
ment, however, that “the ‘ends of justice’ require federal
courts to entertain such petitions only where petitioner
supplements his constitutional claim with a colorable
showing of factual innocence,” 477 U.S. at 454, 106 S.Ct.
at 2627, commanded only a plurality of the justices. See
Messer v. Kemp, 831 F.2d 946, 958 n. 19 (11th Cir.1987) (en
banc), cert. denied, U.S. _ , 108 S.Ct. 1586, 99 L.Ed.2d
902 (1988). Thus, the circumstances under which ends of
justice would require rehearing of an otherwise abusive
petition remain unparticularized.
We find it unnecessary to more narrowly define the
circumstances in this case. For, the instances in which
13 We also note that in 1981 there apparently still existed
records listing each prisoner’s cell assignment and any visita-
tion of prisoners by outsiders. These records, which would
have corroborated or disproved Worthy’s testimony, have since
been destroyed.
14 The district court did not reach the “ends of justice”
inquiry as it found that McCleskey’s claim did not constitute
abuse of the writ.
EEE EEE RR —————————————————————...S
130
ends of justice would require a rehearing of a claim do
not include those in which a violation of a constitutional
right would be found to constitute harmless error.15 The
members of this panel disagree as to whether the district
court was correct in finding that McCleskey had estab-
lished a Massiah violation. Pretermitting that inquiry,
however, the panel is unanimous that any violation that
may have occurred would constitute harmless error and
that the district court erred in concluding otherwise.
D. Harmless Error
The remedy for a Massiah violation is not an auto-
matic reversal of a conviction, but rather the exclusion of
evidence tainted by the violation of petitioner’s right to
counsel. United States v. Morrison, 449 U.S. 361, 365, 101
S.Ct. 665, 668, 66 L.Ed.2d 564 (1981). The previous use of
the tainted evidence will not result in a reversal of a
conviction if it constituted “harmless error.” Under the
harmless error doctrine, the state must “prove beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman v. California,
386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
See also, Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792,
1798, 100 L.Ed.2d 284 (1988) (harmless error analysis
15 See Messer v. Kemp, 831 F.2d at 958-59:
Because we conclude, as a matter of law, that the
record in this case fails to disclose an Ake violation
our “ends of justice” analysis need not proceed any
further. That is, we need not address any other fac-
tors relevant to the “ends of justice” in light of our
conclusion that no constitutional violation occurred.
131
applied to sixth amendment violation tainting evidence
in sentencing phase of capital trial); Brown v. Dugger, 831
F.2d 1547, 1554 (11th Cir.1987).
In this case, the district court held that the error
complained of could not be found harmless because
Evans’ testimony concerning McCleskey’s incriminating
statements was critical to the State’s case. In reaching this
conclusion, the court ignored the Eleventh Circuit's pre-
vious discussion in McCleskey, 753 F.2d at 884-85, of the
importance of the evidence introduced through Evans’
testimony at trial. Though that discussion occurred in the
context of McCleskey’s Giglio claim, it clearly has bearing
on the import of Evans’ testimony in the context of
McCleskey’s Massiah claim. It is true, as petitioner argues,
that the harmless error inquiry in the case of a Giglio
claim differs from the inquiry in the case of a Massiah
violation, but this difference does not save McCleskey’s
claim.
The crucial question in a Giglio claim is whether the
state’s failure to disclose its promise of reward to a wit-
ness affected the judgment of the jury as to the credibility
of that witness. See Giglio, 405 U.S. at 154, 92 S.Ct. at 766.
In its previous opinion, the Eleventh Circuit held that the
judgment of the jury that convicted McCleskey was not
affected by the lack of disclosure. Its holding was based
on two separate grounds. First, it found that “Evans’
credibility was exposed to substantial impeachment even
without the detective’s statement and the inconsistent
description of his escape,” as the jury had already been
made aware of Evans’ extensive list of past convictions.
753 F2d at 884. Second, and more important for our
purposes, the Eleventh Circuit found that, in light of all
I
132
the other evidence presented to the jury, Evans’ testimony
could not “ ‘in any reasonable likelihood have affected
the judgment of the jury.’ ” Id. at 885 (quoting Napue v.
Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d
1217 (1959)). This is precisely the finding that must be
made in a harmless error analysis under Massiah and
upon reexamination, we find no reason to disturb this
finding.
Evans was called by the State on rebuttal to
strengthen its proof that McCleskey was the triggerman
at the holdup. He testified that McCleskey had admitted
to him that he had shot the policeman and that
McCleskey had admitted to wearing makeup to disguise
himself during the robbery. He also stated that
McCleskey said he would have shot his way out even if
there had been a dozen policemen.
Turning first to Evans’ testimony regarding
McCleskey’s admission that he was the triggerman, we
feel that the State has met its burden of proving, beyond a
reasonable doubt, that this testimony did not contribute
to the verdict. First, as noted by the en banc court,
McCleskey’s codefendant, Ben Wright also testified that
McCleskey was the triggerman. Though Georgia law
requires corroboration of an accomplice’s testimony in
felony cases, it is clear that corroboration can be through
circumstantial as well as direct evidence. Davis v. State,
178 Ga.App. 760, 344 S.E.2d 730, 732 (Ga.App.1986) (quot-
ing Gunter v. State, 243 Ga. 651, 655, 256 S.E.2d 341
(Ga.1979)).
The State presented a substantial amount of circum-
stantial evidence. McCleskey himself confessed to his
EH TTT NN
133
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. The officer was killed by a
bullet from a .38 caliber Rossi handgun. The State pre-
sented evidence that McCleskey had stolen a .38 caliber
Rossi in a previous holdup. The gun that McCleskey 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 pis-
tol. This evidence not only corroborates Ben Wright's
testimony, but is of sufficient quantity to allow this court
to find that any additional testimony by Evans did not
contribute to the verdict.
Evans’ testimony regarding McCleskey’s statement
that he was wearing makeup could also not have reasona-
bly affected the jury’s determination. The en banc court
found that:
Evans’ testimony that McCleskey had made up
his face corroborated the identification testi-
mony of one of the eyewitnesses. Nevertheless,
this evidence was not crucial to the State’s case.
That McCleskey was wearing makeup helps
establish he was the robber who entered the
furniture store through the front door. This fact
had already been directly testified to by
McCleskey’s accomplice and two eyewitnesses
as well as corroborated by McCleskey’s own
confession. That Evans’ testimony buttresses
one of the eyewitnesses’ identifications is rela-
tively unimportant.
753 F.2d at 885.
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134
Finally, petitioner asserts that Evans’ testimony as to
McCleskey’s statement that he would have been willing
to shoot twelve policemen affected the jury’s finding as to
the presence of malice and increased its willingness to
impose a sentence of death. Once again, we find that the
en banc court’s analysis of this issue demonstrates that
this testimony was not crucial to the jury’s finding of
malice murder. The court wrote that:
In his closing argument, however, the prosecutor
presented to the jury three reasons supporting a
conviction for malice murder. First, he argued that
the physical evidence showed malicious intent
because it indicated that McCleskey shot the police
officer once in the head and a second time in the
chest as he lay dying on the floor. Second, the
prosecutor asserted that McCleskey had a choice,
either to surrender or to kill the officer. That he
chose to kill indicated malice. Third, the prosecutor
contended that McCleskey’s statement to Evans
that he still would have shot his way out if there
had been twelve police officers showed malice.
This statement by McCleskey was not developed at
length during Evans’ testimony and was men-
tioned only in passing by the prosecutor in closing
argument.
Id. at 885. In addition, the court finds no reasonable likeli-
hood that the jury’s imposition of the death penalty was
affected by Evans’ testimony. The prosecutor did not intro-
duce Evans as a witness at the sentencing phase of trial, nor
did he use Evans’ testimony to portray McCleskey as a
hardened criminal deserving of death, but concentrated
instead on McCleskey’s prior convictions.16
16 This case can easily be distinguished from Satterwhite v.
Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), a
(Continued on following page)
135
Because evidence other than Evans’ testimony pre-
sented in the case presents such a clear indication of
McCleskey’s guilt, this court finds beyond a reasonable
doubt that the jury would have convicted and sentenced
McCleskey as it did even without Evans’ testimony. Our
determination that any Massiah error would be harmless
precludes a finding that the ends of justice would require
us to entertain McCleskey’s claim on the merits.
CONCLUSION
The judgment of the district court granting the peti-
tion for writ of habeas corpus is reversed and the petition
is hereby denied as an abuse of the writ.
REVERSED.
(Continued from previous page)
case that petitioner cites as controlling. In Satterwhite, a psychi-
atrist, who had interviewed the defendant in violation of his
sixth amendment rights, testified in a separate sentencing pro-
ceeding that the defendant presented a threat to society
through continuing acts of violence. In finding that the consti-
tutional error was not harmless, the Court stressed that under
Texas law, a jury may not sentence a defendant to death unless
it finds that the defendant would commit acts of violence and
would be a threat to society. Additionally, the Court found that
the psychiatrist's testimony stood out “both because of his
qualifications as a medical doctor specializing in psychiatry
and because of the powerful content of his message.” Id. at __,
108 S.Ct. at 1799. In the instant case, the jury was not
instructed as to future dangerousness, and the Eleventh Circuit
found, in its previous discussion of the Giglio violation, that
Evans’ testimony had already been greatly impeached by his
own criminal background. 753 F.2d at 884.
136
Supreme Court of the United States
No. 89-7024
Warren McCleskey,
Petitioner
V.
Walter D. Zant, Superintendent, Georgia
Diagnostic & Classification Center
ON PemimioN FoR WRIT oF CERTIORARI to the United
States Court of Appeals for the Eleventh Circuit.
On ConsiperaTiON of the motion for leave to proceed
herein in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion to
proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be, and
the same is hereby, granted. In addition to the questions
presented, the parties are requested to brief and argue the
following question:
“Must the State demonstrate that a claim
was deliberately abandoned in an earlier peti-
tion for a writ of habeas corpus in order to
establish that inclusion of that claim in a subse-
quent habeas petition constitutes abuse of the
writ?”
June 4, 1990