Brief for Petitioner (Draft)
Public Court Documents
July 30, 1990
78 pages
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Case Files, McCleskey Legal Records. Brief for Petitioner (Draft), 1990. 2547e34b-63a7-ef11-8a69-6045bdd667da. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/37fa3344-86ac-448b-9ac0-ccd893c06fa3/brief-for-petitioner-draft. Accessed October 08, 2025.
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No. 89-7024
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1990
WARREN McCLESKEY,
WALTER D.
Petitioner,
VS.
ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
BRIEF FOR PETITIONER WARREN McCLESKEY
JULIUS I., CHAMBERS, III
RICHARD H., BURR, III
GEORGE H. KENDALL
99 Hudson Street
New York, New York 10013
(212) 219-1900
ANTHONY G. AMSTERDAM
New York University
School of Law
40 Washington Square South
New York, New York 10012
(212) 998-6198
* Attorney of Record
ROBERT H. STROUP
141 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
* JOHN CHARLES BOGER
School of Law, CB# 3380
Van Hecke-Wettach Hall
Chapel Hill, North Carolina 27599
(219) 962-8516
ATTORNEYS FOR PETITIONER
WARREN McCLESKEY :
QUESTIONS PRESENTED
1. Should a State, which has been proven (i) to have
committed a constitutional violation in a criminal case and (ii)
to have deliberately hidden that violation for ten years through
a pattern of secrecy and deception, be permitted to assert "abuse
of the writ" as a defense to a second federal habeas application
-- on the ground that the applicant should have discovered the
State's misconduct, and its deliberate cover-up, sooner?
2. Should a habeas applicant be deemed to have
"deliberately abandoned" a constitutional claim of State
misconduct when, after a "reasonably competent" investigation, he
was unable to uncover facts either proving the misconduct or
revealing the conspiracy by which the State misconduct was being
hidden?
3. Must the State demonstrate that a claim was deliberately
abandoned in an earlier petition for a writ of habeas corpus in
order to establish that inclusion of that claim in a subsequent
habeas petition constitutes abuse of the writ?
4. Should a Court of Appeals, in determining whether a
State's constitutional violation was harmless error, be permitted
under Rule 52(a) of the Fed. R. Civ. P. To disregard the express
findings of fact, on the harmless error issue, that were made by
the District Court below?
5. Was the State's introduction of an unconstitutionally
obtained ‘confession -- which was the only item of direct
testimony, by an apparently impartial witness, identifying the
i
defendant as the triggerman in a homicide -- harmless
constitutional error, both as to guilt and as to penalty, in this
capital case?
ii
(1). "Deliberate BypassW.....«+.,
(11) "Inewcusable NeglectM.......
(iii) Other Inequitable Conduct...
B. The Disposition Of Mr. McCleskey's Case.
1. Mr. McCleskey Did Not Deliberately
Abandon His Massiah Claim Or Bypass
Orderly Judicial Procedures On His
Initial Application... sve ee coivame ives
2. Mr. McCleskey's Conduct In Investigating
His Massiah Claim Did Not Constitute
Tnexcusable Neglect... voices se nie 54
3. Mr. McCleskey Did Not Otherwise Abuse
Phe Writ, co vvees sian rnsmnesnsh. “aii aie
IT. The State's Use Of Offie Evans Testimony
Against Warren McCleskey During His Capital
Trial Was Not "Harmless Error" Beyond A
Reasonable Doubt. .csvvrvvieese te renin Ses ve nie
A. The FPindings Of The District Court......
B. The Panel's Contrary View Of The Record.
C. The Obligations Of Rule B52(a). cusses
CONCLUSION te visie vt earn eo tsinsninotimes snneiosnitonnines tiene sie
iv
43
46
48
50
50
57
61
61
63
64
67
TABLE OF AUTHORITIES
CASES
Adams v. United States ex rel. McCann, 317 U.S.
AEE en DUE DO a Se Bs RE 39
Amadeo v. Zant, 486 U.S. 214 (1988) ....+.30,31,80,54,56,57,64
Anderson v. Clty of Bessemer City, 470-U.S. 564 (1985) . 50
Antone v. Dugger, 465 U.S. 200 (1984) (per curiam) .. 47,48,52
Aulry Vv. Estelle, 464 U.S. 1301 (1983) eve enscansinsenes 53
Barbee v. Warden, 331 F.24:842 {4th Cir. 1964) ....n.evs 59
Beacon v. EEOC 500 FF. Supp. 428 {D. Ariz. 1980) wieureenss 60
In re Blair, 4 Wisc, 822, B32 (1854) vss usins Cases vinnie 34
Brady v.. Maryland, 373 U.S, 83.1963) cuensinerineeios eros 9
Brady v. United States, 373 U.8. 83 (1963) ¢ouiviiivinun 58
In re Brittain, 93 N.C. 887, 588 (A838) vehi ividasiidivia 35
Bruton v. United States, 391 U.8., 123 (1968) icici nis 65
Bryant ve. Stillwell, 24'Pa, St. 324 (1855) Wet etoilvevian 60
COX MV. Hakes, 1800 A.C. S08 cece vvovisinmesssssssoinassoine 23,34
Cruz vv. New York, 291.8, 286 (1987) viv: virviiviiiii 65
EX parte Cuddy, 131 U.S. 280 (18389) ..vn. Seis nn evinsivina ode 35
EX parte Cuddy, 40 F. 62 (C.C.8.D. Cal. 1889) te vevivsein 35436
Curran v. State of Delaware, 239 F.2d 707 (34 Cir. 1958) 59
Dorsey v. Gill, 143 F.2d 887 (APD. D.C. 1945) i.viieness 41
Pay v., Nola, 37210. S. 391. (1963) i. .uinniiins Nese vies . 20,33,43
Freeman v, Georgia, 599 P.24 68, 72 (5th Cir. 197%) .... 48,59
Garrison v., \Johnston, 151. F.2¢ 11011 (9th Cir. 19458) .... 44
Giglio v. United States, 408 U. 8. 150 (1972)7. 12.,23,33,63.64
Hamilton v. McCotter, 772 F.28 171 (Sth Cir. 1985) .....
Vv
48
vi
In re Hastings (No.2) [1959] 1 O.B.D. 388 ive rnenine. . 34
Hibler v. State, 43 Tex. 107 (1878) tui cities tosns ion ih 35
Inwood Laboratories, Inc. v. Ives laboratories, Inc.,
4561.8. S44 (1082) «ts vtniv vans sve venus oninenieiosia 64
Jackson V. Penne, 378 U.S, 368 (1964) wuss innnesinenne 65
Jackson v. Wainwright, 390. 7.24 288 (5th Cir. 19638) .... 59
Johnson v. Cabana, 661 F.Supp. 356 (5.D. Miss, 1987) ... 48
Jonnson v. Zerbst, 304 U.8., 458 (1338) vou eovrsoess 28,43,52
Ex parte Xaine, 3 Blatchf. 1 (S.D.N.Y. 1883), 14 Ped Cas.
Dp. 78 (CBSE NO. 7,97) sista viavoonsenseseniassneesbines 35
Ruhilmann Vv, Wilson, 477 U.8. 436 (1986) eae dscinsaevnns 8
Iewls v, lane, 832 7.24 1446 (7th Cir. 1987) wave vssnsns 48
Little v. Marsh, 2. Tred. Eo, 28 (1841) cudivesssisrsssss 60
Massiah vv. United States, 377 U.8. 201 (1964) iuvivern.. passim
McCleskey Vv. Kemp, 481 U,.8. 279 (1987) sds vsensnnsnvinion 1
McCleskey v. Kemp, 7533 F.2d 877 (11th Cir.
1987) ory PANTY vidas di cnn ssiiinitiein tsi sind va 1,33,63,64
¥cCleskeyy, Zant, U.85. , 110:8.Ct. 2585 (1990) ...... 61
McCleskey Vv. Zant, 890 F.24 342 (11th Cir. 1989) cece. 2
McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984) .. 1,13,64
McClesky v. State, 245 Ga. 108, 263 S.E.24 146 (1980) .. 10,18
Michigan vv. Jackson, 475 U.8, 625: L1986) «vue sosinssves 58
Nodnay V.Holochan, 294 U8 103 1935) svt sane cnsssvinsees 58
Moore Vv. Zant, U.S. , 109 S.C. 1518 (1989) wesnrnnvss 20
Moore Vv. Zant, 885 F.24 1497 {(1lrh Cir. 1939) (en banc)... 20
Moore Vv. Zant, 824 F.2d 847 {(iith Cir. 1987) (en banc)... 20
Moser v. United States, 341 U.S. 41 (1951) .c..evnnnnnn.. 60
Napper v. Georgla Television Co., 257 Ga. 156, 356
S.B.20 620 (1087) van deni vd Sis ole es ov sini s 14
Oregon V. Xenmnedy, 456 U.S. 667 {1982) vicevevondea sivie mis 52
Ex parte Pattison, 56 Miss. 161 (1878) tein asesnseeenens 35
Paople Vv. Brady, 56 N.Y. 182 (1874) vevesess RO Cowen 34
In re Perkins, 2 Cal, 424, 430 (1852) ives tens vas “oie ae 34
Portmann v. United States, 674 F.2d 1155 (7th Cir. 1982) 60
Potts Vv. Zant, 638 F.24 727 ABLh Cire 1981) vv inv ve vnosn 20
Price v. Johnston, 334 U.8. 266 (1948) cee vsunres 27,39,48,52
Price v. Johnston, 1561 F.2d 705 (9th Cir. 1947) wer enven 39
Pulliman-Standard v. Swint, 456 U.S. 273, 287-293 (1982) 50
Republic Molding Corp. v. B.W. Photo Utilities, 319 F.24
347 {OLN Cire 063) ies nevis vis er ve ninis as sree 59
Salinger v. Loisel, 265 U.S. 224 (1924) .evsisss 27,37,3%,39,5)1
Sanders Vv. United States, 373 U.S. 1 (1963) ivi vinssren passim
Santobaello:v. New YOrk, 404 U.S. 257 (971) sieve cnvosens 58
Satterwhite v. Texas, 486 U.S. 249 (1988) duievessnassiss 66
Schnelder v..Estelle, 553 F.2d ‘593 (5th Cir. 1971) ...... 59
Secretary of State for Home Affairs v. O'Brien, [1922]
BoC BOB (HL) iss se visvis dale sists wine sn tne cummins 33
Smith v. Yeager, 393 U.S. 122 (1968) (per curiam) ...... 46,52
Inre Snell, 31 MINN. T10 (1883) Vee sinenrnsevessvenidaids 34
Swihart V..Johnston, 150 F.2d :721 (othr Cir. 1945) wv o.i va 44
Townsend Vv. 8ain,f 372 U.8. 203 1063) “ui rrriivenssnviee 43,46,47
TRY, Inc. v. PIC, 647 7.24 942 (1981) BE Rn vase 60
EX parte Turner, 36 Mo. APD. 75 (1889) ou div vavevsnnie 35
Turner v. United States, 258 F.2d 168 (D.C. Cir. 1958) .. 44
United States. v. Bagley, 473 U. 8. 88753988) vou vvicimesy 58,59
vii
United States Vv. Henry, 447 U.S. 264 (1980) ..v... Sinn a oe 8,32
United States ex rel. McCann v. Adams, 320 U.S.
220 (1943) ® 6 © 0 © © © © 6 Uv 5 > 0 0 0° 0 ® © 5 0 0 © © 0 oo oo 0 o ® © © 0 0 0 0 0 0 39
United States ex rel. Smith v. Baldi, 344 U.S. 561 {1S53) 43
United States v. Yellow Cab. Co., 338 U.8. 338 (1949) ‘« 64
Waley Ve. Johnston, 1316 U.S. :101 (1942) cevivee dens .ooine 39
Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985) (en banc) 48
Wong Doo v. United States, 265 U.S. 239 (1924) ... 27,38,51,52
Woodard v. Hutchins, 464 U.S. 377 (1984) (per curiam) ... 47,52
STATUTES
U.S CONSLItUL Ion, Art. IT, § 97 Cl. 2 ies rnnniveesvansis 35
co TT ee EE FT EE a CR EE del Si 2
BE Ue aC ei 8 R07 ttn sie ssn nininsis tele sins Tntamstdrn vas Tides 45
CUAL alle 051 REE aE li Ca I 26,40,41,42,50,52
2S a SC. 18 SAAD) vs we in his sis ai vie mates nna 2,26,28,44,52
Act. of Sept. 28,1976, Pub. L. 94-426, 90 Stal. 1335 .. 46
AClyof July 8, 1976, Pub. L. No. 954=~349, 90 Stat. 822 .. 45
Administration of Justice Act, 1960, 8 & 9 Eliz. 2,
Ch, 88, Section la 2) . criti crscsrsseesnsinenssinnes 2s oie 34
Georgla Open Records Act, O0.C.G.A. § 50-18-72(8) «css. 14
Habeas Corpus Act 0f:1679,°31 Car. 2,°Chy 2, vue vive dann 27,33
Habeas Corpus ‘Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. 38
Juciciafy Act ofs1780.,0 1 Stat. 81 (1789) aids has ibis 35
SN CIR LT ET TR CEE JPEN CE pl MER Ne et 17
Rule 52 (a), Bede Ry CAV ai DP ie vs vet sas vriensns 1,26,27,30,64
Rule 9(b), Rules Governing Section 2254 Cases in the
United States District Courts ....is 3,26,28,45,46,50,582
viii
OTHER AUTHORITIES
Advisory Committee Notes, Rule 9(b), Rules Governing Section
2254 Cases in the United States District Courts .. 48
W. Blackstone, Commentaries on the laws of England ..... 33
Brief on Behalf of Respondent in Zant v. Moore, _ U.S. ,
100 S.Ct, "1518 (0989) setters senecnnscenssrnsnosios 44
W. Church, A Treatise on The Writ of Habeas Corpus
(23 CQ ABO) susie ninsienisiniv nie. vals AEN NG PERE Nn ENG 32
D. Dobbs, Equity and Equitable Remedies (1973) .cveeeeess 59,60
Dobie, Habeas Corpus in the Federal Courts, 13 Va.
Tis REV, 1433 £1927): cove cov vnsvorsstinncssssessvesss 37
Goddard, A Note on Habeas Corpus, 65 L. Q. Rev.30 (1949) 33
Goodman, Use and Abuse of the Writ of Habeas Corpus,
ZAEIRIDY B13 HA0ABY ft oiivins vies siarein dibitis nes ons ain vsns ss 40,49
W.Holdsworth, A History of English Law (2d ed. 1938) ... 32
H.R. Rep. NO..94=1471, 54th Cong., 2d Sess. (1976) ive es 46
H.R. ‘Rep. NO. 1892,°89th Cong., 24 Sess, 3 (1966) wv... «42 45
H.R. Rep. 308, 80th Cong. 1st Sess. £1947) site eesesvses 41
Jenks, The Story of Habeas Corpus, 18 L.Q.Rev. 64 (1902) 32
Lawson, The Effect of Withholding, Suppressing and
Manufacturing Evidence in Civil Cases, 18 Am.
L. REY 188 (1BB4). ‘visaenitsininsvnino ssa snsesiovevenees 60
Note The Freedom Writ -- The Expanding Use of Federal
Habeag Corpus, 61 Harv. L. Rev, 657 (1948) cece... 32
Oaks, .Habeas Corpus in the States -- 1776-1865, 33 U Chi.
Le Rev. 1242 (1985) deine «ve owiehe whete hina is uh ikih ole aiwie ns 32,34
Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D.
B70 GOR TYE ec emieic ois ois nisinlons ss «nsec 2a ectosieinviesnmenin 40
J.Pomeroy, Equity Jurisorudence (Sth EG. 1941) i. ier 60
Report of the Judicial Conference of Senior Circuit
JHOCIOS. (TIES) yo vinrt vita ta dinie sini ssitisisios sas ne es ciniers 40
ix
Report of the Judicial Conference, Rep. Att'y Gen. (1943). 40
S. Rep. Ro. 1797, 89th Cong., 28 S888. (18966) +... vs vans 45
5S. Rep. B0.1559, 80th Cong. 2d Sess (1948) ..vvsurvnines 41
No. 89-7024
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1990
WARREN McCLESKEY,
Petitioner,
VS.
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
BRIEF FOR PETITIONER WARREN McCLESKEY
CITATIONS TO OPINIONS BELOW
An opinion of the District Court granting judgment in
petitioner's favor ‘is reported at 580 F. Supp. 338 (¥N.D. Ga.
1984). The Court of Appeals reversed that judgment at 753 F.2d
877 (11th. Clr. 1987) (en banc), .and this Court affirmed at 481
U.S. 279. (1987).
On a second federal habeas petition, the District Court
entered an order and a formal judgment on January 15, 1988, nunc
pro tunc for December 23, 1987, granting petitioner relief; that
order, which is not officially reported, appears in the Joint
Appendix ("J.A.") at pages 63-100. On January 6, 1989, the
District Court entered an order denying respondent's motion to
alter or amend the judgment under Rule 60(b); that opinion, also
unreported, appears at J.A. 102-111.
A panel of the Court of Appeals reversed the judgment of the
District Court and denied relief on November 22, 1989; that
opinion, which is reported at 890 F.2d 342 (11th Cir. 1989),
appears at J.A. 112-135.
JURISDICTION
“A timely petition for rehearing and rehearing en banc was
denied by the Court of Appeals on February 6, 1990. See Appendix
D to the petition for certiorari. The Court of Appeals stayed
its mandate to and including March 23, 1990, pending the timely
filing of a petition for certiorari. See Appendix E to the
veticion for certiorari. The jurisdiction of this Court is
invoked pursuant to 28 U.S.C. § 1284(1).
STATUTORY PROVISIONS INVOLVED
This case involves 28 U.S.C. § 2244(b), which provides in
pertinent part:
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 pursuant
to the judgment of a State court has been denied by a
court 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 entertained
by'a court 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
1s satisfied that the applicant has not on the
2
earlier application deliberately withheld the newly
asserted ground or otherwise abused the writ.
This case also involves Rule 9(b) of the Rules Governing
Section 2254 Cases in the United States District Courts, which
provides:
Successive petitions. A second or successive petition
may be dismissed 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.
STATEMENT OF THE CASE
Il. STATEMENT OF FACTS
A. The Crime
On May 13, 1978, the Dixie Furniture Store in Atlanta,
Georgia, was robbed by four men (T. Tr. 360-363), each of them
carrying weapons. (T. Tr. 199; 266-268).' During the robbery, an
Atlanta police officer, Frank Schlatt, entered the front of the
furniture store in answer to a silent alarm; he was shot and
mortally wounded by one of the robbers. (T. Tr. 213:330-332).
Within a month of the crime, three of the four men, including
petitioner Warren McCleskey, were taken into police custody. (7.
'! Each reference to the *ranscript of the trial of this
case, held in the Superior Court of Fulton County, Georgia, on
October 9-12, 1978, will be indicated by the abbreviation "T.
Tr.," followed by the number of the page on which the reference
may be found. References to the transcript of the state habeas
corpus proceedings, held in the Superior Court of Butts County,
Georgia, on January 30, 1981, will be indicated by the
abbreviation "St. Hab. Tr." References to the transcript of the
federal habeas corpus hearing, held in the United States District
Court for the Northern District of Georgia on July 8 & 9, and
August 10, 1987, will be indicated by the abbreviation "R.™
followed by numbers indicating the volume of the record and the
page number (e.g. R4- 1), on which the reference may be found.
'T Tr. 349-350; 426-427; gee 582). On May 31st, shortly after his
May 30th arrest, Mr. McCleskey gave a written statement to police
(T. Tr. 178) in which he acknowledged taking part in the robbery
but denied shooting Officer Schlatt. (T. Tr. 510-513).
Although several furniture store employees and other persons
were present when the robbery began, all had been shunted to
offices toward the rear of the store and ordered "to lay down on
the floor.and close. (their). .'. eyes. HW H({T. Tr. 214; 20077291;
339). Consequently, while some employees testified that they
heard footsteps moving forward just before the shots were fired,
neither they nor anyone else could tell police which robber had
confronted and shot Officer Schlatt. (T. Tr. 200; 214-216; 292-
293; 341-343; 330-332). As the District Court subsequently
found, "[tlhere were no witnesses to the shooting." (J.A. 89).7
B. The Massiah Violation
After his arrest on May 30th, Mr. McCleskey was placed in
solitary confinement at the Fulton County Jail, awaiting trial.
The District Court found that approximately one month later, in
early July of 1978, officers of the Atlanta Bureau of Police
Services colluded with an inmate, Offie Evans =-- who had just
Leen arrested and taken to the Fulton County Jail on unrelated
charges (J.A. 90) =-- in order to secure a confession that would
2
Police gathered several items of physical evidence which
directly tied one or more of the robbers to the crime. For
example, co-defendant Ben Wright left a black leather coat which
was recovered at the scene. Photographs of the coat were
introduced during petitioner's trial. (T. Tr. 370-372; 442-443;
650-654) .
identify Mr. McCleskey as the robber who had shot Officer
Schlatt.
The District Court, after three days of evidentiary
hearings, found that "one or more of those [who were]
investigating Officer Schlatt's murder" (J.A. 90) requested
Captain Ulysses Worthy, a supervisory jailor at the Fulton County
Jail, to move informant Evans from another cell to the cell
adjacent to Mr. McCleskey. (J.A. 82). Next, the officers
instructed informant Evans to "get some information" from Mr.
McCleskey about Officer Schlatt's homicide (J.A. 78):
[Evans] was moved, pursuant to a request approved by
Worthy, to the adjoining cell for the purpose of
gathering 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 [co-defendant Bernard]
DuPree; and Evans reported what he had heard . . .« tO
Assistant District Attorney Parker. .
(J.A. 83).
In making these findings, the District Court credited the
testimony of jailor Worthy, who recounted how Atlanta police
detectives and informant Evans met in Worthy's office at the jail
to plan the secret interrogation. Jailor Worthy testified that,
during the meeting, Detective Sidney Dorsey (or perhaps another
"officer on the case") "asked Mr. Evans to engage in
conversations with McCleskey who was being held in the jail."
(R5-150). The District Court itself questioned jailor Worthy on
the essential points:
THE COURT: But you're satisfied that those three things
happened, that they asked to have him put
5
next to McCleskey, that they asked him to
overhear McCleskey, and that they asked him
to question McCleskey.
THE WITNESS: I was asked can -- to be placed near
McCleskey's cell, I was asked.
THE COURT: And you're satisfied that Evans was asked to
overhear McCleskey talk about this case?
THE WITNESS: Yes, sir.
THE COURT: And that he was asked to kind of try to draw
him out a little bit about it?
THE WITNESS: Get some information from him.
(R6~ 64-65: accord, Ré6- 26-28),
Jailor Worthy's testimony was buttressed by a remarkable 21-
page statement, first given orally by inmate Evans to Atlanta
police officials in July of 1978 and later memorialized in
writing in August of 1978. (R4- 141-142). In the typewritten
statement, Evans described in somewhat rambling detail how he
began to question McCleskey about the crime. He bragged that,
once in the adjacent cell, he (i) adopted a false name, (ii)
claimed a family relationship with McCleskey's co-defendant, Ben
Wright, (iii) lied about his own near-involvement in the crime,
(iv) spoke to McCleskey about details of the crime which had not
been made public and which were known only to Atlanta police and
to the participants, (v) established himself with McCleskey as a
reliable "insider," and then (vi) began systematically to press
McCleskey for information about the crime.’
3 In his statement, inmate Evans bragged about his
duplicity in dealing with Mr. McCleskey:
McCleskey's statements to informant Evans later became a
centerpiece of the State's case during McCleskey's trial. The
State used Evans' testimony to establish three important points:
(1) that McCleskey had ostensibly confessed to informant Evans
that he shot Officer Schlatt (T. Tr. 870-871); (2) that McCleskey
told Evans ". . . he would have tried to shoot his way out . . .
if it had been a dozen" police officers (PT. Tr. 871);* and (3)
that McCleskey had clarified to Evans what had become, during
"I told Warren McClesky [sic] 'I got a nephew man, he in a
world of trouble ...' McClesky asked me 'What is his name.' I
told him 'Ben Wright.' McClesky said 'You Beens' [sic] uncle.' I
said 'Yeah.' He said 'What's your name?' I told him that my name
was Charles." (Fed. Exh. 8, at 3).
After Evans falsely assured McCleskey that he had seen
Wright a few weeks ago, and that he "used to stick up with Ben,"
(id. at 40), Evans told McCleskey that "Ben told me that you shot
the man yourself." (Id.), Evans then began to pry open the story
of the crime. "I said man 'just what's happened over there?'"
(Id.) After McCleskey told him some details of the crime, Evans
continued his surreptitious interrogation: "And then I asked
McClesky what Kind of evidence .did they have on him." (Id. at 6).
In a subsequent conversation, Evans sought to learn the
location of the missing murder weapon: "Then I said, 'They ain't
gor no guns or nothing man?!” (Id. at 7). When Bernard Dupree,
Mr. McCleskey's co-defendant, overheard the conversations between
Evans and McCleskey from his cell upstairs and became-
apprehensive, Evans worked to allay Dupree's suspicions, "talking
to Dupree about Reidsville [and] just about ma[king] Dupree know
ne himself." (Id. at 9).
'* This ostensible statement subsequently became a basis for
the prosecutor's argument to the jury that Mr. McCleskey had
acted with "malice." (Sge T. Tr. 9274).
7
trial, a glaring inconsistency in the testimony of another
principal State's witness.’
After hearing live testimony from jailor Worthy and all of
the principal investigating police officers, and after reviewing
informant Evans' 21l-page statement, the District Court concluded
that
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
petitioner's crimes . . . Evans repeatedly lied to
petitioner in order to gain his trust and to draw him into
incriminating statements. Worthy's testimony establishes
that Evans, in eliciting the incriminating statements, was
acting as an agent of the state. This case is completely
unlike Kuhlmann v. Wilson . . . 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.
(J.A. 87-88).
Cc. Petitioner’s Efforts To Uncover the Violation
1. Trial Counsel’s Requests For Statements
Prior to Mr. McCleskey's 1978 trial, his defense attorney,
John Turner, filed a written motion seeking all written or oral
statements made by McCleskey to anyone, and all exculpatory
> Mamie Thomas -- a store employee who said she "never
forgets a face" (Pf. Tr. 303-304) == had told police shortly after
the crime that the robber who entered the store from the front
door had "rough facial features," a face that was "real bumpy"
with a scar. (T. Tr. 301-302). None of these descriptions
matched Mr. McCleskey. According to inmate Evans, however,
McCleskey had confessed during their jailhouse conversations that
he had been wearing makeup and a disguise on the day of the crime
{T. Tr. 870=871: §76-~879%9).
evidence. (See J.A. 5-8). After an in camera inspection of the
prosecutor's file, the trial court denied the motion, withholding
both (i) the 2l-page statement made by informant Evans and (ii)
even the fact that the State possessed such a statement. (J.A. 9;
Fed.Exh. M; R4-73-81; R6-118).
During mid-trial -- as the prosecutor began to question Mr.
McCleskey about whether he had ever made statements to another
jail inmate (J.A. 16; T. Tr. 830) -- defense counsel renewed his
motion, orally demanding all documents in the State's possession
that reflected any statements made by McCleskey. (J.A. 16-17; T.
Tr.830-832). The trial court, which apparently misunderstood the
basis for defense counsel's legal contention, again denied the
motion. During his colloquy with defense counsel, the trial judge
inexplicably furthered the impression that the State possessed no
undisclosed written statements at all. (Judge: "I don't know that
we are talking about any written statements.") (Id.) (emphasis
added) .°
® It appears that the trial court assumed that defense
attorney Turner's oral motion was predicated upon Mr.
McCleskey's due process right to the disclosure of exculpatory
information under Brady v. Maryland, 373 U.S. 83 (1963). The
court thus responded to the motion by remarking that the District
Attorney "has a statement that was furnished to the Court but it
doesn't help vour client." (J.A. 17) (emphasis added). The
prosecutor, apparently sharing the trial court's misimpression,
added that "[l1jt's not exculpatory." (Id.)
The trial court -- also confounded Offie Evans' 21-page
written statement with Warren McCleskey's oral statements, made
to Evans, that were contained within Evans' written statement --
then stated: "This 1s not a statement of the defendant. . . I
don't know that we are talking about any written statement."
(Id.). Defense attorney Turner, however, held fast to his
motion, insisting, "I am saying I filed for oral and written
statements. I asked for all statements of the defendant." (Id.
9
Defense counsel nonetheless preserved an objection to the
court's ruling and briefed the issue on appeal. The Georgia
Supreme Court, in denying relief, contributed to defense
counsel's misimpression, no doubt unwittingly, when it remarked
that "[tlhe evidence [that the defense counsel] sought to inspect
was introduced to the jury in its entirety." McClesky v. State,
245 Ga. 108, 263 S.E.2d 146, 150 (1980) (emphasis added).
In sum, both the trial court and the Georgia Supreme Court
indicated that the State possessed no writings containing any
statements of Mr. McCleskey that had not been disclosed to the
defense during trial. Defense counsel subsequently testified
that he "was never given any indication that ... . [any
undisclosed] statement existed." (J.A. 23-24; St Hab. Tr. 77).
2. Habeas Counsel’s Investigations
Robert Stroup, assisted by lawyers from the NAACP Legal
Defense & Educational Fund, Inc., entered Mr. McCleskey's case as
a volunteer attorney in April of 1980, shortly before a petition
for certiorari was filed on direct appeal.’ Although Mr. Stroup
had nothing more than an unsubstantiated suspicion of a Massiah
violation -- based on Evans' proximity to Mr. McCleskey's cell
at 18).
? Mr. Stroup testified that, throughout the course of state
habeas corpus proceedings, he had responsibility for drafting all
pleadings, carrying out investigations, and conducting all
hearings. (J.A. 57). lawyers from the NAACP Legal Defense Fund,
while appearing formally on the papers, assumed a back-up role,
responding to occasional legal questions from Mr. Stroup and
receiving copies of pleadings. (Id.; see also, Fed. Exh. 1, Aff't
Of Booger, at 2 43}. :
10
and Evans' later appearance as the State's witness -- Stroup
nonetheless decided to include a claim under Massiah v United
States, 377. 0.8. 301 (1964), in his amended state habeas
petition, along with twenty-two other constitutional claims.
(J.A. 20-22 at ¢35; id. at 42-47).
Attorney Stroup pursued the Massiah claim with a field
investigation designed to uncover any facts that might support
it. The Fulton County Jail had been staffed in 1978 by several
shifts of jailors (R6 76); the total cell population was between
900 and 1700; each shift was staffed by literally scores of
officers. (R6 73). Stroup's strategy for locating possible
Massiah witnesses from among the hundreds of potential witnesses
led him first to several Atlanta police officers whom he had
represented in unrelated Title VIT cases. (J.A. 58)... They
advised him on the best way to uncover any available evidence of
an illegal, jailhouse informant relationship. (J.A. 43-44; R4 31-
32). Armed with their advice, Stroup interviewed a number of
jailors at the Fulton County Jail "who were directly involved
with Offie Gene Evans." (J.A. 59; id. at 43-22; ns 33). Stroup
testified that "[blasically, they had no recollection of the
circumstances regarding how Evans came to be assigned to the jail
Cell thas he was assigned to or of any conversations with the
Atlanta Bureau of Police Services Detectives. . . «M{J.A. 45),
Attorney Stroup nonetheless persevered, tracking down a
former jail official, Bobby Edwards, to whom he was directed. By
early 1981, Mr. Edwards had retired and was living in Helen,
11
Georgia, over 90 miles from Atlanta. (J.A. 59-60). Through a
realtor, Stroup managed to find him and to interview him.
Edwards proved to have no knowledge that would support Mr.
McCleskey's claim of a Massiah violation. (J.A. 60).
Although Mr. Stroup's field investigations on this claim -
- one of 22 separate constitutional issues which he, a pro bono
volunteer attorney, was then pursuing -- ® bore no fruit, Mr.
Stroup did not abandon the Massiah claim at that point. Instead,
he sought to discover the prosecutor's file in the case. (J.A.
38; Fed. Exh. 2 at 920). In response, one of Georgia's Assistant
Attorneys General sent him a neds of documents, accompanied by a
letter assuring Stroup that Stroup was receiving "a complete copy
of the prosecutor's file resulting from the criminal prosecution
of Warren McCleskey." (J.A. 29-30; Fed. Exh. 7) (emphasis added).
Informant Evans' crucial 21l-page statement was not included among
the documents transmitted.’
To complete his investigation, Mr. Stroup questioned inmate
Offie Evans under oath during state habeas proceedings (J.A. St.
8 While investigating Mr. McCleskey's other state habeas
claims, Mr. Stroup conducted "more than 30" interviews with other
witnesses. (J.A. 32).
J Mr. Stroup subsequently averred that, because he relied
on these written representations of the State of Georgia, it
never occurred to him that this representation was false, that a
written statement existed, or that he was being misled. (J.A.
38; Fed Exh. 2, at 920.). At no time did lawyers for the District
Attorney's office or for the Georgia Attorney General's office
ever turn over to Mr. McCleskey a copy of Evans' 21l-page
statement.
12
Hab. Tr. 114-132)'° and deposed Russell Parker, the Assistant
District Attorney who had prosecuted McCleskey. (J.A. 25-28).
Mr. Parker denied that the State's relationship with its key
witness, Offie Evans, had been improper:
Q. [Mr. Stroup]: Okay. Were you aware at the time of the
trial of any understandings between Evans and any Atlanta
police department detectives regarding favorable
recommendation [sic] to be made on his federal escape charge
if he would cooperate with this matter?
A. [Assistant District Attorney]: No, sir.
Q. Let me ask the question another way to make sure we
are clear. Are you today aware of any understanding
between any Atlanta police department detectives and
Offie Evans?
A. No, sir, I'm not aware of any.
© Stroup asked Evans when he had been placed in solitary
confinement at the Fulton County Jail (St. Hab. Tr. 116), whether
there was a "special reason" he had been put into solitary
confinement (id. 116-117), whether he had been placed adjacent to
the cell of Warren McCleskey (id. 117), the identity of the
investigators and police officers who had spoken with him, when
those conversations with police had occurred (id. 117-118),
whether he had been promised anything in exchange for his
testimony against Mr. McCleskey (id.,122), and whether he had
subsequently given testimony against any other inmates in other
cases. (Id. 126-127). Informant Evans did not disclose that he
had been moved from another cell to the cell adjacent to
McCleskey's, that he had been asked by Atlanta detectives
secretly to. interrogate Mr. McCleskey, that he had agreed to do
so, or that he had given a 21l-page written statement to Atlanta
investigators. He did reveal, contrary to his testimony at trial
(see TT. Tr. 868-869; 882), that an Atlanta detective had promised
to "speak a word for [him]" with authorities, on Evans' own
pending charges, in exchange for his testimony against Mr.
McCleskey. (St. Hab. Tr. 122). That admission became the basis
for Mr. McCleskey's allegation of a violation of Giglio v. United
States, 405 U.S. 150 (1972), a claim accepted by the District
Court, gee 580 F. Supp. 338, 380-384 (N.D.Ca. 1984), but later
dismissed by the Court of Appeals. See 753 F.2d 877, 882-885
{11th Cir. 1987) (en banc),
13
{J.A. 267 Ped. Exh. 3, 9-10),
On cross-examination, the Assistant District Attorney
broadened his testimony:
Q. Do you have any Knowledge that Mr. Evans was
working 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 conversations
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.
(J.A. 28; Ped. Exh. 3, 14-18).
Mr. Stroup subsequently testified that, following
McCleskey's state habeas proceedings, he concluded that the
Massiah claim could not be substantiated:
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
federal court.
(J.A. 55; R4- 44-45).
3. The Discovery Of The State’s Cover-up
Offie Evans's 2l-page statement did not come to light until
June of 1987 -- six years after Mr. McCleskey's initial federal
habeas petition had been filed. Its existence was revealed only
following a fortuitous development in an unrelated Georgia
case.’ Once the statement was in Mr. McCleskey's possession, he
3 In that case, Naprer v., Georgia Television Co., 257
Ga. 156, 356 S5.E.2d 640 (1887), the Supreme Court of Georgia
held, for the first time, that police investigative files were
within the compass of the Georgia Open Records Act, 0.C.G.A. §50-
18-72 (a) and were, following the end of a direct criminal appeal,
14
acted immediately to make it the foundation of a Massiah claim
which he included in his Sscond federal petition filed in July of
1987. (See R1-9 & Exh. E).
Even when presented with Evans' written statement, State
officials uniformly continued to deny any illegal conduct.?®?
During the hearing on Mr. McCleskey's second federal petition,
his attorneys nonetheless sought to develop all of the
circumstances under which Evans' statement had been made. Asked
by defense counsel where the statement had been taken, one of the
police officers, Detective Welcome Harris, mentioned "a room [at
the Fulton County Jail] that was occupied by a captain, and I
don't think =-- he's no longer employed out there, I think his
name is Worthy." (R4 195). Asked whether jailor Worthy had been
subject to disclosure during habeas corpus proceedings. Mr.
Stroup immediately cited that then-recent decision, still pending
before the Georgia Supreme Court on rehearing, in support of a
request, made not to the Georgia Attorney General or to the
prosecutor, but directly to counsel for the Atlanta Bureau of
Police Services, asking for the original police files in Mr.
McCleskey's case. (J.A. 35; R1-7-6). Because Napper was still
pending on rehearing, attorneys for the Atlanta Bureau were
reluctant to disclose the entire police file, but on June 10,
1987, they agreed to provide Mr. Stroup with one document --
which proved to be the 2l1-page statement made by Offie Evans.
(J.A. 36-37; R1-7-7).
12 Assistant District Attorney Parker testified that he had
never met with informant Evans prior to July 12, 1978; that, on
that date, Evans volunteered essentially all of the information
that was eventually memorialized in Evans' written statement
taken on August 1st; and that Parker was unaware of any
conversations between Atlanta police officers and Evans on any
occasions other than July 12th and August 1st. (R4- 140-142; id.
151-153; R5- 78). Other Atlanta police officers consistently
denied any prior meetings with informant Evans (R4- 200; R5- 35-
37) or, in the case of Detective ‘Dorsey, professed not to recall
any such meetings. (R5 57-60).
15
present during the interview, Detective Harris replied, "No, sir.
I'm sure he wasn't, you know." (R4 196).
Despite this denial and Worthy's long retirement from
service at the jail, McCleskey's attorneys attempted to locate
and subpoena him, as well as many other individuals whose names
had surfaced for the first time during the federal hearing. (R4-
21). Mr. Worthy's subsequent appearance and his Lestinony ad
detailing the secret meeting between informant Evans and Atlanta
police officers in which the scheme to violate Massiah was
developed -- came as a complete surprise to both McCleskey's
attorneys (R6- 51-53) and Georgia's Assistant Attorneys General.
(R6- 5-6).
D. The Issue Of Harmless Error
l. The State’s Evidence At Trial
As indicated above, there were no eyewitnesses to the
shooting of Officer Schlatt, although a number of witnesses
identified four robbers, including Warren McCleskey, as
participants in the robbery. Several employees testified that
they saw Mr. McCleskey enter the furniture store from the front
door (T. Tr. 232; id. 297-299) while other employees saw his
three co-defendants enter from the rear. (T. Tr. 266-267). The
four robbers, however, herded all of the employees tO several
offices in the rear half of the store and forced them to lie
face-down on the floor while they carried out the robbery. (T.
Tr. "213-2342 267-~268;.288w291)., This was the state of affairs
16
when Officer Frank Schlatt entered the furniture store by the
front door.
No employee was able to testify which of the four robbers
confronted Officer Schlatt and fired the shots that killed him.
But the State offered two witnesses who told the jury that Warren
McCleskey had confessed to the shooting. The first was Ben
Wright, one of the robbers. Wright had been a leader in planning
and carrying out the robbery; he had directed the other
participants (e.g., Tr. T. 654-656) and had led the efforts to
obtain the store's receipts from the employees (e.g., T. Tr. 266-
267); and he was a likely suspect in the shooting. Wright
acknowledged during his trial testimony that the State intended
to recommend 20-year concurrent sentences, despite his role in
the crime, in exchange for his testimony against Warren
McCleskey. (T. Tr. 646-647; 682-683). The District Court later
found that Wright's testimony "was obviously impeachable." (J.A.
goy 1
Just before it retired to deliberate on guilt or innocence,
the jury heard another witness, an apparently neutral third
party, recount an ostensible jailhouse confession by McCleskey.
That witness was Offie Evans. (T. Tr. 865-885).
13 Indeed, the District Court noted that there was "some
question whether Ben Wright's testimony on the fact of the murder
would have been admissible at all" under applicable Georgia
evidentiary rules, see 0.C.G.A. §24-4-8, "absent corroboration by
[informant] Evans! testimony" (J.A. 99 'n. 8) -- although the
District Court also noted that the Court of Appeals, on Mr.
McCleskey's earlier appeal, had viewed the likely impact of
Georgia law differently. (Id.).
17
Apart from the confessions reported by informant Evans and
co-defendant Wright, the State's case against Mr. McCleskey on
the murder charge! rested largely upon an effort to place the
murder weapon in McCleskey's hand. Both Wright and Wright's
girlfriend testified that, on the day of the crime, McCleskey had
been carrying a silver .38 pistol linked to the homicide. (T. Tr.
649; 727). Yet on cross-examination, Wright admitted that he,
not McCleskey, had personally carried the .38 pistol for weeks at
a time prior to the crime. (J.A. 16; T. Tr. 682). Moreover,
Wright's girlfriend was confronted, on cross-examination, with
evidence that she had informed police, on the day she was
arrested, that it was Wright, not McCleskey, who had carried a
.38 pistol, while McCleskey '"tote[d] a .45." (J.A. il-14; 7. Tr.
631-634).
2 The Issue For The Jury: Malice Murder
At the close of the guilt phase, the Superior Court
instructed the jury on theories of malice murder (T. Tr. 998-
999) and of felony murder. (T. Tr. 599-1000). The court's
instructions indicated that, to find Mr. McCleskey guilty of
malice murder, it would have to find that he personally caused
the murder of Officer Schlatt or intentionally aided or abetted
that crime. In its charge on malice murder, the trial court
'* Mr. McCleskey was convicted of two counts of armed
robbery -- for the Dixie Furniture Store robbery and for another,
unrelated robbery -- neither of them under challenge here, for
‘which he is presently serving consecutive life sentences.
McClesky vy, gate, 245 Ga. 108, 263 8.2.24 .146, 147 (1980).
18
instructed the jury that "a person commits murder when he
unlawfully and with malice aforethought, either express or
implied, causes the death of another human being." (T. Tr. 1000)
(emphasis added). In its charge on felony murder, the trial
court informed the jury that "[t]lhe homicide is committed in the
perpetration of a felony when it is committed by the accused
while he is engaged in the performance of an act required for the
full execution of such a felony" (T. Tr. 1000) (emphasis added),
and that the jury should convict "if you believe and find beyond
a reasonable doubt that the homicide alleged in this indictment
was caused by the defendant while he, the said accused, was in
the commission of an armed robbery . . . ." (Id.).%
The jury plainly took the malice murder charge seriously,
for during deliberations, it sought further instructions on that
issue. The Superior Court repeated the instructions on malice
murder set forth above. (T. Tr. 1007-1009). The jury later found
Mr. McCleskey guilty of malice murder as well as two counts of
armed ‘robbery. (T. Tr. 1010).
13> The court had earlier charged the jury generally
concerning the doctrine of "parties to a crime," as follows:
That statute says that every person concerned in the
commission of a crime is a party thereto and may be
charged with and convicted of commission of the crime,
and then it has several subsections. It says that a
person is concerned in the commission of a crime only
if he directly commits the crime, intentionally aids or
abets in the commission of the crime, or intentionally
advises, encourages, hires, counsels or procures
another to commit the crime.
(T. Tr. 94).
19
II. The Opinions Below
A. The District Court’s Ruling
The District Court's consideration of Mr. McCleskey's
Massiah claim began with an extensive examination of the State's
plea of abuse of the writ. Aft the outsef of the July 8, 1987
hearing, the Court invited oral argument from the parties on the
issue of abuse (R4- 4-13), then received exhibits and heard live
testimony on that issue (R4- 17-52), and finally, engaged in an
extensive colloquy with counsel (R4- 53-120) before satisfying
itself that the merits should be entertained.
In its subsequent written order, the District Court made
comprehensive findings on the issue of abuse of the writ. The
Court first addressed the State's defense of deliberate
abandonment :
[P]etitioner 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. . . 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 procedures." Fay Vv.
Nola, 372 U. S. 391, 439 (1963), quoted in Potts Vv.
gant, 638: F.24 727, 743 (8th Cir. 1981). . . This is
not a case where petitioner has reserved his proof or
deliberately withheld his claim for a second petition.
Cf. Sanders Vv. United States, 373 U.S. 1, 18 (1963).
(J.A. 83-84). Turning to the issue of "inexcusable neglect," the
6
Court followed controlling circuit precedent,'® reasoning that
16 In Moore v, Zant, 824 -F.24 847 (11th Cir. 1987) (en
banc), remanded, Moore. v., Zant, U.S. , 109 S.Ct. "1518 :(1983),
rev'd on other grounds, Moore v. Zant, 885 F.24 1497 (llth Cir,
1989) (en banc), the Eleventh Circuit held that, on the issue of
20
(3.A.
(J.A.
there is . . . no inexcusable neglect unless "reasonably
competent counsel" would have discovered the evidence prior
to the first federal petition. This court [has] concluded .
. . [that] counsel's failure to discover Evans' written
statement was not inexcusable neglect. [R4- 118-119]. The
same 1s true of counsel's failure to discover 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." . .
. The state has made no showing of any reason that
petitioner 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.
84-85).
The District Court concluded that
the petitioner's Massiah claim as it is currently framed is
not an abuse of the writ because . . . it is based on new
evidence. Petitioner's failure to discover this evidence
earlier was not due to inexcusable neglect.
85) .
Turning to the State's defense of harmless error, the
District Court made factual findings in support of its conclusion
that Offie Evans' "testimony about petitioner's incriminating
statements was critical to the state's case," and that the
admission of Evans' testimony could not be deemed harmless:
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
abuse of the writ, a habeas applicant represented by counsel
would be 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.”
824 F.2d at 851. ;
21
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 petitioner'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.
. . . Because the court cannot say, beyond a reasonable
doubt, that the jury would have convicted petitioner
without Evans' testimony about petitioner's
incriminating statements, petitioner's conviction for
the murder of Officer Schlatt must be reversed pending
a new trial.
(J.A. 89-90).
B. The Panel’s Ruling
1. Abuse Of The Writ
The panel's opinion began with the express assumption "that
McCleskey was unaware of both [informant Evans' 21-page statement
and the existence of jailor Worthy]" when he filed his initial
federal petition. (J.A 123). Given that assumption, the panel
stated, the critical legal question was "whether McCleskey's
unawareness of the factual bases for his Massiah claim at the
time of his first federal habeas petition is sufficient to
justify his failure to present the claim." (Id.).
In answering that question, the panel faulted the District
Court, for "misconstru[ing] the meaning of deliberate
abandonment." (J.A. 124). The panel reasoned that since Mr.
McCleskey's attorneys had been aware of the legal issue, (J.A.
125), it was appropriate to impute to them some unspecified
knowledge of the facts as well. The panel concluded that, since
counsel "did not accidentally fail to include the Massiah claim
22
in the federal petition, but made a knowing choice not to pursue
the claim after having raised it previously" (J.A. 125), the
decision not to go forward with the Massiah claim in federal
court "constitutes prima facie evidence of deliberate
abandonment." (Id).
[W]e 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.
iid.) .
The panel also criticized counsel's investigation of the
Massiah claim as "somewhat lacking." (J.A. 126). The panel
specifically faulted counsel: (i) for his failure to have
interviewed the two Atlanta detectives or the jailor mentioned by
informant Evans (J.A. 126-127 n.12); and (ii) for his fallure to
have located jailor Worthy earlier. (J,A. 128). The panel
dismissed the significance and the utility of Evans' 21-page
statement -- calling it "{a}t most . '. +. simply the catalyst that
caused counsel to pursue the Massiah claim more vigorously" (J.A.
128) =-- and focused instead on the testimony of Worthy, which it
called "[t]he key piece of evidence." (J.A. 128) The panel
stated that McCleskey's attorneys "ha[d] not presented any reason
why counsel would have been unable to contact Ulysses Worthy back
&3
in 1981 . . .[or] shown that a more extensive effort at that time
vi vo would not have turned up Worthy." (J.A. 128).%7
A petitioner and his counsel may not circumvent the abuse of
the writ doctrine 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 required to make a thorough investigation of the
facts at the time of petitioner's first petition for habeas
corpus.
(J.A., 128-129).
The panel made no effort to reconcile its own findings with
the District Court's express finding that counsel's investigation
had been "'reasonably competent'" (J.A. 84-85) and that
petitioner had not been guilty of inexcusable neglect under the
circumstances. (J.A. 85).
2. Harmless Error
In addressing the harmless error issue, the panel did not
rely on the factual findings of the District Court, but instead,
found that "[t]he officer was killed by the man who entered and
secured the front of the store while the other three men were in
the back" (J.A. 133) and that "McCleskey was identified by two of
the store personnel as the robber who came in the front door."
(Id.) The panel also found that "the officer was killed by a
17. “On rehearing, Mr. McCleskey noted for the panel's
consideration that jailor Worthy was among literally hundreds of
jailors assigned to the Fulton County Jail in 1978. His name
surfaced only after Mr. McCleskey's attorneys managed to obtain
informant Evans' 21-page statement and were questioning Atlanta
/Detyctive Harris about where the statement had been taken. (R4-
TY 1952). See Suggestion for Rehearing In Banc, dated December 11,
\_1989, at 21. |
24
bullet from a .38 caliber Rossi handgun" (id.) and that McCleskey
was tied to the Rossi by the State's evidence. (Id.)
Relying on this "substantial amount of circumstantial
evidence" (J.A. 132), the panel concluded that the
evidence other than Evans' testimony presented in the case
presents such clear indication of McCleskey's guilt, [that]
this court finds beyond a reasonable doubt that the jury
would have convicted and sentenced McCleskey as it did even
without Evans' testimony.
(3.5. 138),
The panel dismissed the effect on Mr. McCleskey's jury of
Evans' account of McCleskey's boast -- "I would have shot my way
out if it had been a dozen police officers” =- as. "not crucial"
to the State's effort to demonstrate that Mr. McCleskey was
guilty of murder with malice. (J.A. 134). The panel also
dismissed the impact on the jury's verdict of Evans' testimony
that McCleskey had confessed to using makeup. Since other
witnesses had identified McCleskey as the robber who entered by
the front door, the panel reasoned, the clarification of the
discrepancies in the description proffered by a key State
eyewitness were "'relatively unimportant.'" (J.A. 133).
Turning from the guilt-or-innocence verdict to the jury's
decision to impose a death sentence, the panel found "no
18 The panel followed an opinion by the Court of Appeals on
Mr. McCleskey's first appeal, observing that the prosecutor had
advanced two other arguments, in addition to the boast, to
support his claim that McCleskey acted with malice. (J.A. 134).
The panel also cited the Court of Appeals' earlier observation
that the "statement by McCleskey was not developed at length
during Evans' testimony and was mentioned only in passing by the
prosecutor in closing argument." (J.A. 134).
25
reasonable likelihood" that the jury's decision was affected by
Evans' testimony, reasoning that the prosecutor did not introduce
Evans as a witness at the sentencing phase or dwell upon his
testimony during his closing sentencing argument. (J.A. 134).
SUMMARY OF ARGUMENT
The principal issue on this appeal is whether petitioner
Warren McCleskey abused the writ of habeas corpus by omitting a
claim under Massiah v. United States from his initial federal
petition. ‘The District Court found that Mr. McCleskey had not
abused the writ, since he could not be charged either with a
knowing, "deliberate abandonment" of the claim or with
"inexcusable neglect" in failing to find the crucial evidence
sooner.
The panel's opinion, which disagrees with those findings,
can be read in one of two ways: (1) either it announces a new,
"thorough investigation" standard which it proposes to engraft
onto the "deliberate bypass" branch of traditional abuse
doctrine; or (ii) contrary to Rule 52(a), it substitutes its own
factfindings on the reasonableness of counsel's investigation for
those of the District Court.
We will show that to accept the former interpretation would
require the Court to abandon three hundred years of common law
jurisprudence on successive habeas corpus applications and to
disregard the plain intention of Congress, presently embodied in
28 U.S.C. §§ 2244 and 2244(b) and Rule 9(b). On the other hand,
to accept the latter interpretation would require the Court to
26
repudiate its own prior teachings on the limited role assigned to
appellate factfinders by Rule 52 (a). Neither consequence is
acceptable,
Since at least the Habeas Corpus Act of 1679, English law
neg permitted habeas applicants to make successive applications
without limit. Because adverse adjudications were not res
judicata, an applicant could go from court to court until he
secured his release. Moreover, though adverse rulings could be
challenged in successive applications, a decision to discharge an
applicant could not be appealed. In the late eighteenth and
early nineteenth centuries, this English tradition respecting
habeas corpus passed into the common law of most American states.
Even when some states began to pass statutes restricting this
unlimited access to successive applications, they typically
allowed such applications when new evidence had come to light.
The common-law tradition pervaded, not only state law, but
federal law as well. When this Court first addressed the issue
of successive petitions, in Salinger v. Ioisel, 265 U.S. 224
(1824), and Vong Doo. v. United States, 263.0.8, 239 (1924), it
ratified that tradition, rejecting any strict application of res
judicata principles and instead asking only whether an applicant
brought his successive claims in good faith, without reserving
evidence or claims that were "accessible at all times." . During
the following twenty years, the Court ruled favorably in a number
of cases brought by successive applicants. Most clearly, in
Price v. Johnston, 334 U.S. 266 (1948), the Court refused to deny
27
a habeas applicant, on his fourth federal application, a full
opportunity to show that his failure to have asserted a claim
earlier might be explained by State misconduct in hiding the
relevant evidence.
Congress, which had extended federal habeas protection to
state prisoners in 1867, acted in 1948 to codify certain basic
procedural rules governing its use. Disclaiming any intention to
modify standards that had been established by this Court,
Congress rejected a number of proposals that would have sharply
curtailed the availability of successive petitions. After the
Court decided Sanders v. United States, 373 U.S. 1 (1963),
outlining the basic framework for analysis of repeater petitions,
Congress twice acted to ratify and incorporate the standards of
Sanders, first in 28 U.S.C. § 2244 (b) and then in Rule 9(b).
Numerous legislative campaigns either to outlaw successor
petitions or to restrict them dramatically have failed in
Congress.
Under Sanders, if a State pleads abuse of the writ in
response to a habeas application, the applicant must demonstrate
that he has not deliberately withheld or bypassed the claim he
now asserts, and that he was not "inexcusably neglectful" in
failing to identify and assert it earlier. The "deliberate
bypass" standard draws its contours from Johnson v. Zerbst, 304
U.S. 458, 464 (1938); it asks whether an applicant's prior
conduct was truly voluntary, knowing and intelligent. If not,
then there was no "deliberate bypass." The "inexcusable neglect"
28
branch looks to whether the applicant's actions in previously
omitting the claim are so inexcusable that it would be just to
charge him with wilful disregard of orderly judicial procedures.
Sanders also contemplates a third inquiry, asking generally
whether the applicant has acted in bad faith, with an intent to
"vex, harass, or delay."
The panel's adjudication of Mr. McCleskey's case appears to
have added a new "thorough investigation" requirement to the
traditional "deliberate bypass" branch of abuse doctrine. Its
new rule would charge all habeas applicants, irrespective of good
or bad faith, not only with knowledge of evidence "obviously
known to them" or "accessible at all times" -- indeed, not only
with the fruits of a "reasonable investigation" (which the
District Court found to have been conducted by Mr. McCleskey's
lawyers) =-- but with all evidence that, in hindsight, might have
been developed during a "thorough!" investigation.
Such a rule constitutes an utter break with the common-law
tradition, with this Court's prior precedents, and with
Congressional intent. It substitutes a standard of virtual
strict liability for the essentially subjective, good faith test
that has traditionally guided federal inquiry in this area.
Since federal habeas corpus is a statutory remedy, and since
Congress has spoken on the question, no extensive policy
discussion is necessary. The panel's decision was beyond its
authority to adopt or apply.
29
Alternatively, if the panel has done nothing more than fault
the adequacy of the investigation conducted by McCleskey's
lawyers, it has violated Rule 52(a) and Amadeo Vv. Zant, 486 U.S.
214 (1988). The District Court made factfindings -- both on the
adequacy of counsel's investigation and on the accessibility of
the newly proffered evidence -- which are not clearly erroneous
and which, therefore, bind the panel.
Finally, Sanders permits the courts to consider the
equitable circumstances surrounding Mr. McCleskey's application.
McCleskey's own conduct evinces no bad faith at all. He pleaded
his Massiah claim at the earliest opportunity, based upon no more
than a suspicion of governmental misconduct. He conducted a
field examination, which he followed up by discovery and direct
questioning under oath of a responsible State official. Unable
to locate written documents or witnesses to substantiate his
serious charge of State misconduct, he decided that the claim was
meritless.
The State's conduct, no less than Warren McCleskey's, is
subject to equitable scrutiny by a federal habeas court. Judged
by equitable standards, the State is responsible for the
knowledge and actions of each of its officials, including those
State officers who conspired to violate Massiah and then
deliberately suppressed evidence and lied to cover up their
misconduct; and the State must be found guilty of bad faith.
Under any of a number of equitable principles -—- the doctrine of
unclean hands, the notion of equitable estoppel, the presumption
30
that arises against one who suppresses or destroys evidence --
the State should not be heard, on this record, to assert a
defense whose essence is that Mr. McCleskey failed to discover
earlier the State's concealment of its own misdeeds.
Finally, the panel held that the State's use of informant
offie Evans' testiteny, in violation of Massiah, was harmless
error, contributing neither to the jury's verdict of guilt nor to
its sentence of death. In so holding, the panel plainly
disregarded the District Court's findings of fact on important
subsidiary issues concerning the weight and significance of the
State's other evidence at trial; it thereby violated Amadeo v.
Zant. Even were the panel free independently to make its own
factfindings, it underestimates the importance of that testimony
in placing responsibility for the murder squarely on Mr.
McCleskey. Moveover, the panel ignores the District Court's
express findings that the State's other evidence was rife with
contradictions and weaknesses which rendered the State's case --
absent the confirming testimony of Offie Evans =-- an extremely
shaky foundation for a verdict of malice murder or a sentence of
death.
31
ARGUMENT
MR. MCCLESKEY AND HIS COUNSEL DID NOT (i)
DELIBERATELY ABANDON HIS MASSIAH CLAIM, (ii)
ACT WITH INEXCUSABLE NEGLECT, OR (iii)
OTHERWISE ABUSE THE WRIT OF HABEAS CORPUS
UNDER FEDERAL STANDARDS
The panel's judgment rests principally upon its conclusion
that Mr. McCleskey —-- by asserting his Sixth Amendment claim
under Massiah v. United States, 377 U.S. 201 (1964), and United
States v. Henry, 447 U.S. 264 (1980), only in a second federal
petition -- has abused the writ of habeas corpus. To affirm that
judgment, the Court would have to repudiate 300 years of Anglo-
American jurisprudence on habeas corpus, numerous squarely
controlling precedents decided by the Court itself over more than
half a century, and the repeated, considered decisions of
Congress addressing the specific issue presented here.
A. ABUSE OF THE WRIT =~ THE DOCTRINAL BACKGROUND
a. The Common Law
Although the origins of the writ of habeas corpus ad
subjiciendum are murky, and its earliest forms and usages are the
subject of scholarly debate!’, there is general agreement with
19
See 9 W.Holdsworth, A History of English Law 104-112 (2d
ed. 1938); W. Church, A Treatise on The Writ of Habeas Corpus 3
(2d ed. 1893); Jenks, The Story of Habeas Corpus, 18 L.Q.Rev. 64
(1902). See also Oaks, Habeas Corpus in the States -- 1776-1865,
33 U. Chi. L. Rev. 243 (1965), and authorities cited at note 2;
Note The Freedom Writ -- The Expanding Use of Federal Habeas
Corpus, 61 Harv. L. Rev, 657 (1948), and authorities cited at
note 3. -
32
Blackstone's assessment that it is "the most celebrated writ in
: 20
the English law:'
It is "a writ antecedent to statute, and throwing its root
deep into the genius of our common law. . . It is perhaps
the most important writ known to the constitutional law of
England, affording as it does a swift and imperative remedy
in all cases of illegal restraint or confinement. It is of
immemorial antiquity, an instance of its use occurring in
the thirty-third year of Edward I."
Fav v. Nola, 372. U. S. 391, 400 (1963), guoting Secretary of
State for Home Affairs v. O'Brien, 1922 A.C. 603, 609 (H.L.).
For at least the past 300 years, since Parliament's passage
of the Habeas Corpus Amendment Act of 1679,%, English law has
refused to treat a judgment denying habeas corpus relief as res
judicata; a habeas claim, dismissed by one court, could be
successively presented without limit:
It was always open to an applicant for it, if defeated in
one Court, at once to renew his application to another. No
Court was bound by the view taken by any other, or felt
itself obliged to follow the law laid down by it. Each
Court exercised its independent judgment upon the case, and
determined for itself whether the return to the writ
established that the detention of the applicant was in
accordance with the law. A person detained in custody might
thus proceed from court to court until he obtained his
liberty.
Cox v. Hakes, 1890 A.C. 506, 527.
Moreover, while a judicial decision denying relief allowed
further adjudication, a ruling discharging an applicant was not
subject to further judicial challenge: "[H]is right to his
2 3 W. Blackstone, Commentaries on the Laws of England
129.
2 5.3% Car, 2, ch. 2. See Goddard, A Note on Habeas Corpus,
65.1. Q. Rev. 30, 32-33 (1949).
33
liberty could not afterwards be called into question. There was
no power in any Court to review or control the proceedings of the
tribunal which discharged him. "??
2 The Early American Experience
In the fledgling states at the time of the American
Revolution, "the privilege of the writ of habeas corpus was
transmitted into American law principally through tradition and
the common law." Oaks, Habeas Corpus in the States -- 1776~-
1865, 33 U Chi. L. Rev, 242, 247 (1965). In consequence, most
state courts throughout the nineteenth century held that an
adverse habeas corpus ruling was not res judicata, and that
successive applications should be entertained.?® Some states
eventually did, by statute, begin to place constraints on the use
2 Cox v. Hakes, supra, at 528. This rule was not altered
in Great Britain until 1959, when the Queen's Bench Division held
in In re Hastings (No.2) [1959] 1 Q.B.D. 358 that a Divisional
Court -- faced with a renewed application on the same evidence
and the same legal ground =-- "having once exercised its
discretion" had "an inherent jurisdiction to refuse . . . to hear
the same matter argued again." The following year, the Hastings
decision was modified in part by The Administration of Justice
Act, 1960, 8 & 9 Eliz. 2, ch, 65, Section 14 (2), vhioh permits a
second application if "fresh evidence" is offered by the
applicant.
** See, e.qg., In re Perkins, 2 Cal. 424, 430 (1852) ("The
statute never contemplated that a judgment upon one writ should
be a bar to any further proceeding, but looks to a different
result; and any prisoner may pursue his remedy of habeas corpus
until he has exhausted the whole judicial power of the State");
in re Snell, 31 Minn. 110, 112 (183%3)("In some courts there
appears to be a disposition to make the right to a second writ a
question of expediency for the court to determine. This occurs
to, us to be a dangerous notion. The 'writ of liberty’ is a writ
Qf right."); People v. Brady, 56 N.Y. 182, 192 (1874); In re
Blaly, 4 Wisc. 822, 532 (1834).
34
of successive applications,? but such statutes typically
provided that second applications should be entertained if newly
discovered evidence became available.?
Since neither the text of the federal Constitution, Art. I,
§ 9, cl. 2, nor.the Federal Judiciary Act Of 1789, 1 Stat. 81
(1789) =-- both of which exdiiaitiy provided for the writ of
habeas corpus -- fully defined its procedures or scope, most
early federal cases followed the English practice permitting
successor petitions. For example, in Ex parte Kaine, 3 Blatchf.
1 (S.D.N.Y. 1853), 14 Fed Cas. p.. 78 (Case No. 7,597), a district
court held that federal practice on habeas applications would be
governed by the common law:
[Alccording to that system of laws, so guarded is it in
favor of the liberty of the subject, the decision of one
court or magistrate . . . refusing to discharge the
prisoner, is no bar to the issuing of a second or third or
more writs, by any other court or magistrate having
jurisdiction of the case; and that such court or magistrate
may remand or discharge the prisoner, in the exercise of an
independent judgment upon the same matters.
Id. at 80.%
“iSce, o.a., Ex parte Turner, 36 Mo. App. 75, 77 (1289);
In re Brittain, 93 N.C. 587, 588 (1885); Hibler v. State, 43 Tex.
197 (1875).
> See, e.g., Hibler v. State, 43 Tex. 197, 199 ("A party
may obtain the writ of habeas corpus a second time by stating in
the application therefor that since the hearing of the first
application important testimony has been obtained, which it was
not in his power to produce at the former hearing.") Contra, Ex
parte Pattison, 56 Miss. 161 (1878).
2 In another often-cited federal case, Ex parte Cuddy, 40
FP. 82 (C.C.5.D. Cal. 1889), Justice Field, sitting as a circuit
justice, was presented with a second habeas petition by an
applicant whose initial application had been denied by the full
Court, in an opinion by Justice Harlan. Ex parte Cuddy, 131 U.S.
35
3. The Modern Federal Authorities
a. The Court’s Pre-1948 Cases
280 (1889). Justice Field noted that the full Court had rejected
Cuddy's application, in part, because the record he presented was
not sufficient to clarify a crucial matter at issue, and that,
under the circumstances, the Court presumed that the trial court
had acted properly. 40 F. at 64. On his successive application,
cuddy sought to supplement the record, adding the missing facts.
Addressing his application, Justice Field first considered
the legal background:
The writ of habeas corpus, it is true, is the writ of
freedom, and is so highly esteemed that by the common law of
England applications can be made for its issue by one
illegally restrained of his liberty to every justice of the
kingdom having the right to grant such writs. . . The
doctrine of res judicata was not held applicable to a
decision of one court or justice thereon; the entire
judicial power of the country could thus be exhausted. Ex
parte Kaine, 3 Blatchf. 5, and cases there cited. The same
doctrine formerly prevailed in the several states of the
Union, and, in the absence of statutory provisions, is the
doctrine prevailing now.
40 FF. at 65.
Noting, however, that "[i]n many instances great abuses have
attended this privilege," Justice Field held that "while the
doctrine of res judicata does not apply . . . the officers before
whom the second application is made may take into consideration
the fact that a previous application has been made to another
officer and refused; and in some instances that fact may justify
a refusal of the second." Id. 65-66.
In Cuddy's case, Justice Field reasoned, the second
application was being made "upon the same facts presented, or
which might have been presented, on the first." The opinion
stressed that "there are no new facts which did not exist"
earlier, id. at 66, and that Cuddy neither (i) attempted to make
a second, supplemented application, adding the omitted facts,
before seeking to appeal nor (ii) suggested, at any point during
his appeal, "that the record did not fully disclose [his] . . .
case." Id. Under those circumstances, the writ was dismissed.
36
While the lower federal courts had decided numerous habeas
corpus cases under the Act of 1867 by the early twentieth
century,? this Court first spoke authoritatively to the question
of successive petitions in Salinger v. Loisel, 265 U.S. 224
(1924). Salinger had successfully avoided federal mail fraud
charges in the State of South Dakota through "a protracted
resistance" in the courts. He had obtained adverse habeas
rulings, on essentially the same ground, from federal district
and circuit courts in New York and from federal district and
circuit courts in Louisiana =-- all prior to his presentation of
the application eventually considered on certiorari by the Court.
265 U.S, at. 228.
Although the Solicitor General strongly urged the Court to
invoke the doctrine of res judicata to bar to Salinger's resort
to the writ of habeas corpus, the Court declined to do so:
We are unable to go so far. At common law the doctrine of
res judicata did not extend to a decision on_habeas corpus
refusing to discharge the prisoner. The state courts
generally have accepted that rule where not modified by
statute; the lower federal courts usually have given effect
to it; and this Court has conformed to it and thereby
sanctioned it, although announcing no express decision on
the point.
27 In 1927, Professor Dobie, surveying the federal judicial
treatment of habeas corpus cases under the Act of 1867, wrote:
"(T]he federal courts have grounded their decisions in habeas
corpus cases not on literal technicalities but on a broad
conception of essential justice. The Supreme Court has
manifested somewhat the spirit of a chancellor in formulating a
decree in equity." . Dobie, Habeas Corpus in the Federal Courts,
13 Va. L..Rev.. 432,458 (1927).
37
265 U.S. at 230. Instead, after reviewing both the pertinent
federal habeas statute ?° -- which directed the court "to dispose
of the party as law and justice may require" -- and the decision
of lower federal courts applying the statute, the Court declared
that
each application is to be disposed of in the exercise of a
sound judicial discretion guided and controlled by a
consideration of whatever has a rational bearing on the
propriety of the discharge sought. . . [including] a prior
refusal to discharge on a like application.
Id. Since the district and circuit courts had exercised their
discretion to reach the merits of Salinger's claims, the Court
did so as well, rejecting the merits as insufficient. Id. 232-
238.
The Court clarified what "sound judicial discretion" might
require in Wong Doo v. United States, 265 U.S. 239 (1924),
another successive petition case rendered the same day as
Salinger. Wong Doo, seeking to avoid deportation, had filed an
initial petition asserting two grounds. The government's return
had placed both grounds at issue. Yet at his initial federal
hearing, Wong Doo had presented evidence and sought adjudication
only on the first ground. When the initial litigation proved
unsuccessful, Wong Doo filed a second federal application,
reasserting the abandoned second ground. 265 U.S. at 240.
The Court, though reiterating that res judicata was no
absolute bar to Wong Doo's application, nonetheless affirmed the
2%. The Habeas Corpus Act of Feb. 5, 1867,.ch. 28, § 761,
Rev. Stat., 14 Stat. 385.
38
lower court's dismissal. Since Wong Doo had failed to offer any
proof on his second claim at the initial federal hearing -- even
though, the Court observed, he "had full opportunity" to do so,
since the proof "was accessible all the time," 265 U.S. at 241 -
- his claim was properly dismissed. "To reserve the proof for
use in attempting to support a later neticion, if the first
failed," the Court held, "was to make an abusive use of the writ
of habeas corpus." Id.
In the next twenty years, the Court decided a number of
habeas claims brought on second applications, some of them
favorably to the applicant.?® The most significant was Price v.
Johnson, 334 U.S. 266 (1948), in which a federal prisoner
alleged, on his fourth federal enol ication, that the Government
had induced a key witness to change his testimony during the
trial, thereby suborning perjury. The exasperated lower court
denied relief, stressing (i) that Price had litigated two prior
habeas petitions through the courts of appeals, Price v.
Johnston, 161 F.2d 705, 706 (9th Cir. 1947), (ii) that Price had
29. In United States ex vel. McCann v. Adams, 320 U.S. 220
(1943), for example, the Court held that the lower courts should
not have dismissed a second habeas petition -- brought by the
relator after this Court had itself denied his first application,
see Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) -
- since the issue presented in the second application "was
explicitly withdrawn from consideration on the habeas corpus
proceedings previously before the Circuit Court of Appeals [and]
' has never been adjudicated on its merits by the lower
courts... 320 U.S. at 221.
In Waley v. Johmngton, 316 U.S. 101 (1942), the Court held
that, when an applicant proffered an excuse for his failure to
present a claim on an earlier coram nobis application, a second
petition ought not be denied. without a hearing. 316 U.S. at 105.
39
proffered "no reason or excuse . . . for his failure to set [the
prosecutorial misconduct claim] up in . . . his prior petitions,”
id. at 707, and (iii) that, since the witness had changed his
testimony openly during the course of the trial, Price appeared
to know "as much about the [alleged] misconduct at the time it is
‘said to have occurred as he knows now." Id.
Despite these considerations, the Court refused to dismiss
Price's writ:
If called upon, petitioner may be able to present adequate
reasons for not making the allegation earlier, reasons which
make it fair and just for the trial court to overlook the
delay. The primary purpose of a habeas corpus proceeding is
to make certain that a man is not unjustly imprisoned. And
if for some justifiable reason he was previously unable to
assert his rights or was unaware of the significance of
relevant facts, it is neither necessary nor reasonable to
deny him all opportunity of obtaining judicial relief.
334"0.8. at 291.
bh The Congressional Choice
Price was decided one month before Congress enacted a
comprehensive codification of the Judicial Code which included,
for the first time in eighty years, a new federal statute
addressing the writ of habeas corpus. In drafting what became 28
U.S.C. § 2244, Congress carefully considered pleas by respected
30
jurists, among others, for a provision that would sharply
° See, e.q., Report of the Judicial Conference of Senior
Circuit Judges 18 (1945); Report of the Judicial Conference, Rep.
Att'y Gen. 67-69 (1943). See also Parker, Limiting the Abuse of
Habeas Corpus, 8 F.R.D. 171, 172 (1948) (decrying %evils . . .
[from] this flood of litigation"); Goodman, Use and Abuse of the
Writ of Habeas Corpus, 7 F.R.D. 313 (1948) (lamenting that during
the preceding decade, 26 inmates of Alcatraz had filed 167
petitions). “Other judges expresséd their dissatisfaction in
40
curtail the traditional federal policy allowing successive habeas
applications. However, the House Judiciary Committee, in its
report on the 1948 legislation, emphasized that its intent in
presenting proposed § 2244 was to "make[] no material change in
existing practice." H.R. Rep.308, 80th Cong., lst Sess. A178
(1947) .%
The Senate Judiciary Committee, for its part, while
accepting other recommendations from the Judicial Conference,
chose to modify the language of its proposed § 2244 to emphasize
that federal courts would retain their traditional equitable
power to entertain successive petitions. "The original language
of the section," the Senate Committee feared, might be read to
deny] to Federal judges the power to entertain an
application for a writ of habeas corpus where the
legality of the detention has been determined on a
prior application. The amendment [would] . . . modify
this provision so that, while a judge need not
entertain such a later application for the writ under
such circumstances, he is not prohibited from doing so
if in his discretion he thinks the ends of justice
require its consideration.
S. Rep. No.1559, 80th Cong. 2d Sess 9 (1948).
reported opinions. See, e.q., Dorsey v. Gill, 148 F.2d 857, 864
(App. D.C. 1945), cert. denied, 325 U.S. 890 (1945) (cataloging at
great length the dimensions of the federal burden and the
possible remedies that could be adopted).
> The House Judiciary Committee indicated that it was far
from oblivious to the problem of abusive petitions; on the
contrary, it explicitly noted that "[t]he practice of suing out
successive, repetitious, and unfounded writs of habeas corpus
imposes an unnecessary burden on the courts." H.R. Rep. 308, 80th
Cong. 1st Sess. Al78 (1947). Yet the Report concluded that the
current procedures were adequate to protect against abuses:
"[Tlhe courts have consistently refused to entertain successive
'nuisance' applications for habeas corpus." (Id.)
41
Section 2244, as revised, passed the full Senate and became
law on June 25, 1948. During the succeeding eighteen years,
literally dozens of efforts were made to persuade Congress to
narrow § 2244. As Justice Harlan subsequently noted,
[c]oncern with existing and potential abuse of the remedy .
. . led to proposals that successive applications . . . on
grounds previously available would be wholly barred. . . .
E.g., HR 4232, 79th Cong, 2d Sess. These proposals were
rejected in favor of the traditional discretion exercised by
courts with respect to successive applications.
Sanders v. United States, 373 U.S. 1, 26 (1963). See also H.R.
Rep. No. 1892, 89th Cong., 2d Sess. 3 (1966) (reciting other
proposed bills). None of these efforts succeeded.
Cc. The Court’s Opinion in Sanders, And
Its Congressional Ratification
In 1963, the Court decided Sanders v. United States, in
which it distinguished between two basic types of successive
petitions and announced different modes of analysis appropriate
to each.
The truly "successive petition," the Court held, involves a
second presentation of a claim previously adjudicated, adversely,
on its merits. 373 U.S. at 15. Contrasted with successivep
petitions are repeater applications asserting Eating that, for
variety of reasons, were never judicially determined on an
earlier application. Id. at 17. "Full consideration of the
merits" of these latter applications, the Court held, "can be
avoided only if there has been an abuse of the writ. . . ." 373
U.S. at 17.
42
To determine whether a claim is abusive, Sanders directed
the federal courts to apply the historically established
principles of equity jurisprudence:
"[H]abeas corpus has traditionally been regarded as governed
by equitable principles. United States ex rel. Smith v.
Baldi, 344 U.S. 561, 573 (dissenting opinion). Among then
is the principle that a suitor's conduct in relation to the
matter at hand may disentitle him to the relief he seeks. .
. Thus, for example, if a prisoner deliberately withholds
one of two grounds for federal collateral relief at the time
of filing his first application, in the hope of being
granted two hearings rather than one . . . he may be deemed
to have waived his right to a hearing . . . The same may be
true if, as in Wong Doo, the prisoner deliberately abandons
one of his grounds at the first hearing. Nothing in the
traditions of habeas corpus requires the federal courts to
tolerate needless piecemeal litigation, or to entertain
collateral proceedings whose only purpose is to vex, harass,
or delay.
372"U.S.*at 18,
For further guidance, the Court directed the lower courts to
its simultaneous rulings in Fay v. Noia, 372 U.S. 391, 438-440
(1963), and Townsend v. Sain, 372 U.S. 293, 317 (1963), whose
principles, the Court held, "govern equally here." 373 U.S. at
18. Fay and Townsend propound a two-pronged test for determining
whether a habeas applicant should be heard on the merits of his
claims: (i) whether he "deliberately abandoned or bypassed" an
opportunity to assert the claim; and if not, (ii) whether his
failure to do so was somehow a product of "inexcusable neglect."
(1) #Deliberate Bypass”
Deliberate bypass or abandonment, the Court explained in
Fay, should be measured in accordance with
the classic definition of waiver enunciated in Johnson v.
Zerbst, 304 U.S. 458, 464 [1938] -- "an intentional
43
relinquishment or abandonment of a known right or
privilege."
372 U. S. at 439. In deciding whether an applicant has
deliberately bypassed or abandoned a claim, the Court rejected
any tendency "to introduce legal fictions into federal habeas
corpus." Id. Instead, the Court insisted, analysis must focus
upon the applicant's actual state of mind, and it must probe, not
only whether his decision was voluntary, but whether it was
"knowing and intelligent" as well.
In so holding, the Court acted consistently with prior
federal case law reserving condemnation for habeas applicants,
like Wong Doo, who had deliberately held back evidence that was
already in their possession or was readily at hand.??
Congress subsequently modified § 2244 in 1966, and in doing
so, it adopted the distinction the Court had drawn in Sanders. We
respectfully refer the Court to the Brief on Behalf of Respondent
in Zant v. Moore, (No. 87-1104), - U.S, i ,%.109 S.Ct. 1518 (1989),
pages 28-29, for a more thorough account of the legislative
history of 28 U.S.C. § 2244(b). In short, although the House
Judiciary Committee indicated that, in fashioning § 2244(b), it
intended to provide "for a qualified application of res
“2 See. _e.0., Swihart v. Johnston, 150 7.2d 721, 723 (oth
Cir. 1945) (while second petition included certain evidentiary
allegations that first petition did not, "{[olbviously ... . these
matters (if true) were known to appellant when he filed the
[earlier] petition"); Garrison v. Johnston, 151 F.24 1101, 1013
(9th Cir. 1945) (same); Turner v. United States, 258 F.2d 165,
167 (D.C. Cir. 1958) (allegations could have been raised in prior
application, and applicant presented "[n]o indication of any
'justifiable reason' or ‘'unawareness' to explain their
omission").
44
judicata,” H.R. Rep. No. 1892, 89th Cong., 24 Sess. 8 (1966), the
Senate Report identified the target of the preclusion principle
as those "applications either containing allegations identical to
those asserted in a previous application that has been denied, o
predicated upon grounds obviously well known to them when they
filed the preceding application." S. Rep. No. 1797, 89th Cong. ,
2d Sess. 2 (1966) (emphasis added).
When Congress in 1976 revisited the question of successive
petitions -- in Rule 9(b) of the Rules Governing Section 2254
Cases =-- it once again clarified its intention that applicants
should not be barred from asserting new claims on a second habeas
application absent proof of deliberate bypass or inexcusable
neglect.®® In its own subsequent decisions, the Court has
** Exercising its reserved authority under 28 U.S.C.
§2072, Congress did not initially allow the Judicial Conference
Rules to become law. Instead, in response to sharp criticism
from some quarters, Congress voted to delay the effective date of
the proposed rules in order to afford itself the opportunity to
review and amend the rules if necessary. See Act of July 8, .197¢,
Pub. L. NO." 94-349, 90 Stat, 822.
In its ultimate report on the proposed Rules, the House
Committee on the Judiciary recommended a change in the language
proposed by the Judicial Conference for Rule 9 (b):
The committee believes that the 'not excusable!
language created a new and undefined standard that gave
a judge too broad a discretion to dismiss a second or
successive petition. The 'abuse of writ' standard
brings rule 9(b) into conformity with existing law. As
the Supreme Court has noted in reference to successive
applications for habeas corpus relief and successive
§2255 motions based upon a new ground or a ground not
previously decided on the merits, 'full consideration
of the merits of the new application can be avoided
only if there has been an abuse of the writ or motion
remedy; and this the Government has the burden of
Pleading. Sanders v. United States, 373:U.8. 1, 17
(1963). See also 28 United States Code, section
45
adhered to these standards set forth in Sanders, § 2244 (b), and
Rule 9(b). See, e.9., Smith v. Yeager, 393 U.S. 122 (1968) (per
curiam) (allowing claim on second federal application despite
counsel's apparent waiver of federal hearing on identical claim
during prior application).
(ii) #Inexcusable Neglect”
The Court's doctrine on inexcusable neglect begins with
Townsend v. Sain, a right-to-a-federal-hearing case. The Court
clarified in Townsend that "inexcusable neglect" would require
more than mere "neglect:" indeed, such conduct must so closely
approach deliberate manipulation that a court can only attribute
the neglect to a willingness to subvert orderly judicial process,
not mere carelessness. Thus in Townsend, the Court declined to
brand as "inexcusable" a defense counsel's failure at trial to
2244 (b) .
H.R. Rep. No. 94-1471, 94th Cong., 24 Sess. (1976). On September
28, 1976, Rule 9(b) was enacted into law. Act. of Sept. 28,
1876, Pub. L., 94-426, 90 Stat. 1335,
46
develop fully the testimony of his own crucial expert witness.
In subsequent cases, the Court has faulted those applicants
who offer no explanation for their failure to present claims in
earlier applications when the evidence to support them was, to
all appearances, available at the time of those earlier
applications. In Woodard v. Hutchins, 464 U.S. 377 (1984) (per
curiam), for example, Justice Powell criticized a repeater
petition when the only "new evidence" advanced in support of a
claim of insanity was "the report of a forensic psychiatrist .
. [without any] expla[nation] why this examination was not
conducted earlier." 464 U.S. at 379-380 (Powell, J., concurring).
The Court has also rejected repeater petitions accompanied by
plainly spurious explanations. Thus, in Antone v. Dugger, 465
U.S. 200 (1984) (per curiam), the applicant's only excuse for
failing to carry forward a prosecutorial misconduct claim was
the press of time during the first set of collateral
** Townsend sought a evidentiary hearing on a claim that
his confessions had been ther product of a drug-induced state
brought on by the State's administration of a "truth serum"
during his custodial interrogation. 372 U.8. at 295-303.
Although there had been extensive expert testimony at trial on
the drug's effects on Townsend, his counsel had failed to develop
fully the point that the drug involved was "a truth serum" which
might have prompted Townsend's confession. 372 U.S. at 321. The
Court reasoned that "[t]lhis fact was vital to whether his
confession was the product of a free will and therefore
admissible," and that "the medical experts' failure to testify
fully cannot realistically be regarded as Townsend's inexcusable
default." 372 U. S. at 322. Thus although the counsel plainly
erred by neglecting to ask his own-witness certain crucial
questions, the Court refused to brand his conduct "inexcusable."
47
proceedings." 465 U.S. at 203. After reviewing the record, the
Court rejected this explanation, underscoring that (i) "almost
two years [had] . . . elapse[d] between the affirmance of
[Antone's) . .. « conviction and the filing of his first motion
for postconviction relief," 465 U.S. at 206 n.4; (ii) Antone
"continued to be represented throughout this period by his trial
counsel," id.; and (iii) inasmuch as a stay had been granted by
the Court of Appeals, the "first federal habeas petition . . .
was not conducted under the pressure of imminent execution." Id.
By contrast, the presentation of a new claim in a second or
successive federal habeas petition has consistently been held
excusable by the lower courts when it was based upon the
applicant's discovery of new evidence neither previously known to
him nor readily at hand, especially when State actors bear some
responsibility for withholding that evidence. See, e.g., Hamilton
¥. McCotrteyr, 772 P.24 171, 183-184 (5th Cir. 19858): Halker. v.
Lockhart, 763 F.24 942 (83th Cir. 1985) {en banc); Johnson v.
Cabana, 661 F.Supp. 35%6.(S.D. Miss. 1987); cf. Lewis v, Lane, 832
F.2d 1446, 1456-1457 (7th Cir. 1987); Freeman v. Georgia, 599
F.2d 65, 72 (5th Cir. 1979). These cases have followed Price v.
Johnston and the express statement of the Advisory Committee on
the Rules that "newly discovered evidence" is one of several
circumstances sufficient to excuse a prior failure to assert a
claim. See Advisory Committee Notes on Rule 9 (b).
(iid) Other Inequitable Conduct
48
Sanders' catalogue of abusive behavior was not strictly
limited to instances of deliberate bypass or inexcusable neglect.
Instead, emphasizing that equitable principles govern habeas
corpus generally, the Court posited a general axiom that "a
suitor's conduct in relation to the matter at hand may disentitle
him to the relief he seeks." Sanders v. United States, supra,
373 U.S. at 17. A federal court need not "tolerate needless
piecemeal litigation, or . . . entertain collateral proceedings
whose only purpose is to vex, harass, or delay." Id. at 18.
Both these words and the Court's reference to general
equitable principles illuminate the limits of its concept of
Wabuge. tt Vexatiousness, harassment and delay had long been
attributes identified with professional writ writers of the sort
Judge Goodman described in his article, Use and Abuse of the Writ
of Habeas Corpus, 7 F.R.D. 313, 315 (1948) (detailing abuses by
Alcatraz inmates). To curb such abuses, the Court called for the
kind of a judicial inquiry historically conducted by a chancellor
in equity: Has the applicant acted in good faith? Does he come
to the litigation with clean hands? Should either party be
estopped from asserting a claim (or a defense) because of its
prior conduct?
All of these questions, the Court in Sanders held,
are addressed to the sound discretion of the federal trial
judges. Theirs is the major responsibility for the just and
sound administration of the federal collateral remedies, and
theirs must be the judgment as to whether a second or
successive application shall be denied without consideration
of the merits. Even as to such an application, the federal
judge clearly has the power =-- and, if the ends of justice
demand, the duty -- to reach the merits.
49
373. U.S. at 18-19.
B. THE DISPOSITION OF MR. McCLESKEY’S CASE
As we have seen, Sanders, § 2244 (b), and Rule 9(b) establish
controlling standards by which to evaluate assertions of abuse of
the writ. To determine whether Mr. McCleskey's Henry/Massiah
claim constitutes an abuse, the first issue -- and according to
the Court of Appeals, the dispositive issue -- is whether
McCleskey "deliberately abandoned" his Massiah claim.
1. Mr. McCleskey Did Not Deliberately Abandon
His Massiah Claim Or Bypass Orderly Judicial
Procedures On His Initial Application
The District Court's factual findings on deliberate
abandonment were not set aside by the Court of Appeals as
"clearly erroneous" under Rule 52 (a), nor could they be. They
therefore provide the foundation for subsequent review of this
issue. Amadeo v. Zant, 486 U.S. 214, 223-22 (1988); Anderson v.
Citv of Bessemer Citv, 470 U.S, 564, 573-576 (1985); Pullman-
Standard v. Swint, 458 U.S, 273, 287-293 (1982).*
3> The District Court's principal findings on the
deliberate bypass issue are as follows: (1) that "{a]t the time
of his first federal petition, petitioner was unaware of
[informant] Evans' written statement" (J.A. 83-84); (ii) that
"petitioner did not have . . . Worthy's testimony at the time of
his first federal petition" (J.A. 84); (iii) that "counsel did
conduct an investigation of a possible Massiah claim prior to the
first federal petition," one which, measured by the standards of
"reasonably competent counsel," was adequate (J.A. 84-85); (iv)
that there was "no showing of any reason that petitioner or his
counsel should have known to interview Worthy specifically with
regard to the Massiah claim" (J.A. 85); (v) that conducting
interviews with three Atlanta police officers and jailors who
later testified at the federal hearing "would [not] have allowed
petitioner to assert this claim any earlier" (J.A. 85); and (vi)
50
The panel purports to accept these findings (J.A. 123),
differing only on a legal issue =-- "the meaning of deliberate
abandonment.” (FJ.A. 124). Yet as its opinion unfolds, the panel
brands the investigation by Mr. McCleskey's counsel as "somewhat
lacking" (J.A. 126), and declares broadly that to abandon a claim
after "initial investigatory efforts" prove unsuccessful "cannot
insulate a petitioner from abuse of the Writ.” (JB. 127). The
panel concludes its analysis with a holding that "counsel is
required to make a thorough investigation of the facts at the
time of petitioner's first petition for habeas corpus.” (J.A.
129),
This analysis is subject to two possible interpretations:
(a) either the panel has added a new, "thorough investigation"
requirement to the traditional "deliberate bypass" inquiry, or
(b) the panel has rejected, sub silentio, the District Court's
factual findings that Mr. McCleskey's counsel conducted a
reasonably adequate investigation. We will deal with the first
possibility under the present heading; we will address the latter
possibility under the heading of "inexcusable neglect."
Our earlier doctrinal review makes clear just how radically
the panel's "thorough investigation" requirement departs from
prior.-law. Since at least Salinger and Wong Doo in 1924, the
primary focus of the federal law of abuse has been an applicant's
good or bad faith, his possible inequitable manipulation of
that the Massiah claim "was dropped because it was obvious that
it could not succeed given the then-known facts." (J.A. 83)
51
process. To check such misconduct, the Court and the Congress
have settled upon a standard focused principally upon the
subjective intent of the applicant (and his counsel). Cf. Oregon
v. Kennedy, 456 U.S. 667 (1982). At its core are three questions
drawn from Johnson v. Zerbst : Was the applicant's action
voluntary? Was it knowing? Was it intelligent? If newly
proffered evidence was "obviously well known" to an applicant, if
that evidence was "accessible at all times," if an applicant had
"full opportunity to offer proof of it" and simply "reserve([d]
the proof for use in . .'v a later petition," then his failure to
assert the claim was veluntdry, kndwins and intelligent, and
deliberate bypass has been shown.
The panel's new rule, by marked contrast, would impute to
Mr. McCleskey not only knowledge which is so "accessible," so
close to hand, that it "must have been" known, but all knowledge
that, on judicial hindsight, might somehow have been obtained
from a "thorough investigation." Good faith becomes irrelevant;
proof of a "purpose to vex, harass or delay," unnecessary.
Whatever might be said for the wisdom of such a rule, it is
indisputably not the present law. It cannot be squared with Wong
Doo, with Price, with Sanders, with Smith, or with Woodard and
Antone. More important, it cannot be squared with congressional
intent, for in enacting §2244, §2244(b), and Rule 9(b), which
incorporate the Sanders standard, Conueoss nuda a series of
choices. It was presented with abundant evidence concerning the
extent of the perceived problem, the apparent need for change,
52
and the statutory alternatives =-- some of them nearly identical
to the new rule adopted by the panel below. Yet Congress
unmistakably rejected those alternatives. By dismissing, or
ignoring, those Congressional choices and substituting its own,
the panel erred. See, e.d., Autry v, Estelle, 464 U.8. 1301
(1983) (White, Circuit Justice).?®®
Moreover, even if the law permitted the fruits of a
reasonable investigation to be imputed to counsel, Mr.
McCleskey's attorneys conducted an investigation which the
District Court later found to be "reasonably competent."?’ What
* "In my view, it would be desirable to require by statute
that all federal grounds for challenging a conviction or a
sentence be presented in the first petition for habeas corpus.
Except in unusual circumstances, successive writs would be
summarily denied. But historically, res judicata has been
inapplicable to habeas corpus proceedings . . . and 28 U.S.C.
§2254 Rule 9 implicitly recognized the legitimacy of successive
petitions raising grounds that have not previously been presented
and adjudicated." 484 U.S. at 1302.
>’ We note the following steps, all of them indisputably
taken by Mr. McCleskey's attorneys:
0 trial counsel formally moved to obtain all statements
and exculpatory evidence from the State;
0 trial counsel renewed his request at trial, demanding
all documents in the State's possession that reflected
oral statements by McCleskey;
o trial counsel appealed the issue of access to such
statements;
0 habeas counsel, despite the lack of prior success by
: trial counsel, nonetheless asserted a Massiah claim;
o habeas counsel sought to learn, through police
officers' advice, which jail officials were most likely
to know about any Massiah violation:
0 habeas counsel then interviewed those jail officials;
0 habeas counsel, having learned about a retired jail
official who had been responsible for cell placement in
1978, tracked that jailor.down to a town 90 miles away,
to.no avail; | :
853
thwarted their efforts to prove their Massiah claim was not their
own lassitude but the State's ten-year pattern of suppression of
evidence, denial, and perjury. This is not a story of deliberate
abandonment by an applicant, but of deliberate concealment by the
State. See Amadeo v. Zant, supra.
The only legal standard under which counsel's investigation
could properly be faulted would be a strict liability standard.
If habeas attorneys are to be charged with knowledge of all
possible evidence, no matter how obscure or tangential, no matter
how thoroughly hidden by State actors, then Mr. McCleskey's
attorneys are guilty of deliberate bypass. Nothing Congress has
ever done, indeed, nothing we have found in the past 300 years of
habeas corpus jurisprudence, would support the adoption of such a
standard.
2. Mr. McCleskey’s Conduct In
Investigating His Massiah Claim Did
Not Constitute #Inexcusable
Neglect”
0 habeas counsel sought from the State, and was given,
what the State represented to be "a complete copy of
the prosecutor's file;"
0 habeas counsel asked the prosecutor and the informant,
under oath, whether there had been an improper
relationship:
0 when the informant's 2l-page statement was uncovered,
habeas counsel immediately filed a second federal
habeas petition;
o habeas counsel questioned police officers to learn
where the 2l1-page statement had been taken from Evans;
0 habeas counsel, having learned that it had been taken
in jailor Worthy's office, found and subpoenaed Worthy
to determine whether he had any relevant knowledge.
54
The District Court found that Mr. McCleskey's failure to
raise the Massiah claim "was not due to his inexcusable neglect."
(J.A. 84). "Reasonably competent counsel at the time of the
first petition," the court held, would not have discovered either
the statement of informant Evans or jailor Worthy. (J.A. 84-85)
Although the panel purports not to overturn these factual
findings, in truth it takes a sharply different view of the
evidence. While the District Court found, for example, that
informant Evans' 2l-page statement "contains strong indications
of an ab initio relationship between Evans and the authorities™®
(J.A. 84), the panel dismisses the statement as Walt most . . .
simply the catalyst that caused counsel to pursue the Massiah
claim more vigorously." (J.A. 128). The District Court
carefully examined the question whether reasonable counsel would
have located jailor Worthy (J.A. 84-85) and it ultimately found
"no . . . reason that petitioner or his counsel should have known
to interview Worthy specifically." (J.A. 85). The panel reaches
® The panel's assessment undervalues the statement in at
least two important respects. (i) It was Evans' statement that
provided the sole direct link between Offie Evans and Ulysses
Worthy. Only when Detective Harris revealed, on cross-
examination, that Evans' statement had been taken in jailor
Worthy's office did Worthy first emerge as a possible witness
from among the hundreds of jailors employed at the Fulton County
Jalil in July of 1978. Second, even had jailor Worthy somehow
miraculously come to counsel's attention independently of the 21-
page statement, his testimony alone could not have supplied proof
of the "deliberate elicitation" required by Massiah and
subsequent cases. It is Evans' own boastful statement that
reveals his aggressive, persistent interrogation of Mr. McCleskey
-- how completely Offie Evans moved from being a mere "listening
posLY ‘or.an "ear" to become a "voice . 4 . to encourage
conversation."
55
‘almost precisely the contrary conclusion: "McCleskey has not
presented any reason why counsel would have been unable to
contact Ulysses Worthy back in 1981 . . . [or why] a more
extensive effort at that time . . . would not have turned up
Worthy." (J.B. 1238).%
In sum, the panel's analysis appears strikingly similar to
the opinion faulted by this Court in Amadeo v. Zant, 486 U.S. 214
(1988). As in McCleskey, the issue in Amadeo was whether
evidence, hidden by the State, was nonetheless "reasonably
discoverable" by defense counsel. 486 U.S. at 222. As here, the
district court in Amadeo, after the receipt of live testimony and
other evidence, made factual findings concerning the adequacy of
defense counsel's investigation and the accessibility of the
crucial evidence. 486 U.S. at 223. A panel of the court of
appeals in Amadeo thereafter "substituted its own factual
findings for those of the District Court" and "rejected . . . the
District Court's conclusion that petitioner's lawyers did not
** The panel's critique focuses upon a single strand of
evidence that McCleskey's attorneys failed to pursue: follow- -up
interviews with three Atlanta law enforcement officers mentioned
during state habeas proceedings. (J.A.126 n.12).
The panel's critique ignores two critical considerations.
First, during the state habeas proceedings Mr. McCleskey's
counsel heard Assistant District Attorney Russell Parker -- the
police officers' superior and the State official charged with
overall responsibility for the investigation and prosecution of
the McCleskey case -- testify under oath that the State had not
entered into an informant relationship with Offie Evans prior to
McCleskey's trial. Second, the District Court later found that
one or more of the officers whom the panel believed should have
been interviewed lied under oath in federal court to cover up
their own prior misconduct. (J.A. 90). It is little wonder that
the District Court held that counsel's failure to interview these
officers would not have led to jailor Worthy sooner. (J.A. 85).
56
deliberately bypass" appropriate judicial proceedings. 486 U.S.
at 224. The same error appears to have recurred here.
Unquestionably, either the panel's holding in McCleskey is a
radical departure from the settled law of deliberate bypass =-- as
we argued above -- or it is a flat violation of Amadeo v. Zant,
as we argue here. In either event, it should be reversed by this
Court.
The panel's decision offends not only Rule 52 but the very
concept of inexcusable neglect. On this record, what is
inexcusable and what has delayed Mr. McCleskey's presentation of
his Massiah claim to the courts for a decade is not any neglect
on his part but concealment on the part of State officials.
Unlike Hutchins or Antone, Mr. McCleskey's lawyers sought out all
available evidence. They affirmatively presented what little
they found to the state habeas court, and they sought in good
faith to learn from responsible state officials whether there
might be anything else to proffer. Only after those officials
testified under oath that their conduct had been blameless and
that McCleskey's suspicions were baseless did his counsel decide
to drop the claim. That decision, made in good faith reliance
upon the word of State officials, however naive it later proved,
is not what this Court has ever meant by "inexcusable neglect."
3. Mr. McCleskey Did Not Otherwise Abuse The Writ
We have shown that Mr. McCleskey did not deliberately
withhold his Massiah claim, and that his attorneys were not
guilty of inexcusable neglect. The final inquiry is whether the
57
actions of the parties provide any other equitable basis for
barring consideration of the claim.
The equities, however, strengthen rather than weaken
McCleskey's entitlement to be heard on the merits. On Mr.
McCleskey's part, there is no evidence of bad faith. His lawyers
did all they reasonably could to present evidence of a Massiah
violation promptly to the state habeas corpus courts. A decision
to carry the Massiah claim forward into federal court -- to
continue to assert serious charges against State officials
despite what appeared to have been a full hearing, despite sworn
denials by State officials, despite an absence of contrary
evidence -- would have been, at the least, a wasteful gesture
and, at the most, an irresponsible plea.
A review of the State's conduct, by contrast, leads
inexorably to a finding of bad faith. In various contexts, this
Court has traditionally imputed the misconduct of any member of
the prosecution team to the State itself. See, e.qg., Mooney Vv.
Holohan, 294 U.S. 103 (1935); Bradv ¥. United State=z, 373 U.S. 83
(1963). The good faith of some State actors cannot excuse the
bad faith of others. Especially is this true when Sixth
Amendment claims are under consideration. As Justice Stevens
explained in Michigan v. Jackson, 475 U. S. 625, 634 (1986),
Sixth Amendment principles require that we impute the
State's knowledge from one state actor to another. For the
Sixth Amendment concerns the confrontation between the State
and the individual.
See also Giallo v, United States, 405 U. S. 1580, 154 (1972);
Santobello v, New Vork, 404 U.8. 257, 262 (1971); Cf. United
58
States v. Bagley, 473 U.S. 667, 671 & n.4 (1986).“ It is
appropriate in habeas corpus proceedings for the State's conduct,
no less than the applicant's to be judged by equitable standards.
And since "a suitor's conduct in relation to the matter at hand
may disentitle him to the relief he seeks," Sanders v. United
states, supra, 373 U.8. at 17, the State here, because of the
misconduct of State actors, should be disentitled to assert its
defense of abuse-of-the-writ.
A variety of equitable doctrines support this conclusion.
The State has brought unclean hands to this litigation.’ State
actors did far more than merely violate Massiah. When defense
counsel began to investigate the relationship between Offie Evans
and Atlanta police, those State actors affirmatively suppressed
‘® The lower federal courts have regularly applied this
rule to police misconduct of the sort at issue here. See, e.q.,
Freeman v. State of Georgia, 599 F.2d 65, 69-70 (5th Cir. 1979)
("We feel that when an investigating police officer willfully and
intentionally conceals material information, regardless of his
motivation and the otherwise proper conduct of the state
attorney, the policeman's conduct must be imputed to the state as
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842
(4th Cir. 1964) ("The police are also part of the prosecution,
and the taint on the trial is no less if they, rather than the
State's Attorney, were guilty of the nondisclosure. . . .");
Schneider v. Fstelle, 552 F.2d 593 (5th Cir. 1971); Jackson v.
Wainwright, 390 F.2d 288, 296 (5th Cir. 1968); Curran v. State of
Delaware, 259 F.24 707, 713 (34d 'Cir. 1958).
** As Professor Dobbs has noted "unclean hands may be any
sort of conduct that equity considers unethical . . . Th[e] rule
1s that unrelated bad conduct is not to be considered against the
plaintiff. It is only when the plaintiff's improper conduct is
the source, or part of the source, of his equitable claim, that
he is to be barred because of this conduct. 'What is material is
not that the plaintiff's hands are dirty, but that he Airties
them in acquiring the right he now asserts. . . .'" D. Dobbs,
Equity and Equitable Remediés 46 (1973), citing Republic Molding
Corp. Vv. BW. Photo Utilities, 319 F.2d 347 (9th Cir. 1963).
59
evidence and lied in an effort to hide their misconduct. These
acts constituted an independent wrong, separate from, though in
furtherance of, the initial Massiah violation. Since the essence
of the State's abuse defense depends upon Mr. McCleskey's delay
in discovering the evidence that State officials were actively
hiding, the State dirtied its hands in the very act of acquiring
the defense that it now asserts against Mr. McCleskey. |
Additionally, the State's conduct in suppressing Evans’
statement should equitably estop it from claiming abuse.*? The
Court could even draw on more ancient doctrines, such as the
venerable maxim "omnia praesumuntur contra spoliatorem," which
embraces most frequently cases of the destruction or
suppression of written evidence . . . [BJut it has been said
that to smother evidence is not much better than to
fabricate it. [Black, J., in Bryant v. Stillwell, 24 Pa. SL.
3147(1855).) "Spolliation,” it is said in one case, [Little
v. Marsh, 2 Ired. Eq. 28 (1841)] "is always looked upon by a
court of justice with suspicion.™®
Lawson, The Effect of Withholding, Suppressing and Manufacturing
Evidence in Civil Cases, 18 Am. L. Rev. 185, 200 (1884).
Indeed, the principle that a court should not permit a party
to profit by its own wrongdoing is so fundamental that, in one
* Equitable estoppel, Professor Dobbs has explained,
ordinarily "has three important elements. The actor, who usually
must have knowledge of the true facts, communicates something in
a misleading way, either by words, conduct or silence. The other
relies upon that communication. And the other would be harmed
materially if the actor is later Permitted to assert any claim
inconsistent with his earlier conduct. D. Dobbs, Equity and
Equitable Remedies 42 (1973); see 3 J.Pomeroy, Equity
Jurisprudence § 804 at 189 (5th Ed. 1941). See generally, Moser
v. United States, 341 U.S. 41, 46-47 (1S51): Portmam v. United
States, B74 P.2d 1158, 1167 (7th Cir. 21982); TRU, Inc, v. FIC,
647 F.24 942, 550-951 (1981); Beacom v. EEOC, 500 F. Supp. 428,
435-439 AD. Ariz. 1980). :
60
guise or another, it pervades all areas of the law. No special
rule need be fashioned to bar the State from asserting of an
abuse-of-the-writ defense against Warren McCleskey on the present
record.”
11}
THE STATE’S USE OF OFFIE EVANS’ TESTIMONY
AGAINST WARREN McCLESKEY DURING HIS CAPITAL
TRIAL WAS NOT #HARMLESS ERROR” BEYOND A
REASONABLE DOUBT
A. The Findings Of The District Court
The District Court made a number of important factfindings
that were subsidiary to its conclusion that the State's Massiah
violation was not harmless. It began its analysis by correctly
noting that there had been no witnesses to the shooting (J.A. 89)
and that the murder weapon had never been recovered. KI3.).:. The
** The Court, ‘in granting certiorari, framed its own
question on the issue of abuse:
Must the State demonstrate that a claim was deliberately
abandoned in an earlier petition for a writ of habeas corpus
in order to establish that inclusion of that claim in a
subsequent habeas petition constitutes abuse of the writ?
McCleskey v. Zant, U.S. , 110 S.Ct. 2585 (1990). Our foregoing
discussion should indicate our answers to this question. First,
although the State must plead deliberate abandonment, as Georgia
did here, we concede that the burden of proof then falls upon the
petitioner. Second, the State need not rest its allegations of
abuse’ on charges of deliberate abandonment; inexcusable neglect
or other vexatious conduct are alternative bases for a finding of
abuse. If the State does charge deliberate bypass, however, the
decisive issue is whether a claim was abandoned "deliberately."
It is not enough to find that the claim was, in fact, abandoned:
a court must find that the applicant did so in a voluntary,
knowing, and intelligent way, that he exhibited a bad faith
intention to reserve proof "obviously well known" to him or
"accessible at all times." There is no basis here for such a
finding against Warren McCleskey.
61
court then found that the State's case against Mr. McCleskey on
the murder charge had been three-pronged: (i) evidence that
McCleskey had carried a .38 Rossi, the pistol that most likely
fired the fatal bullets, on the day of the robbery; (ii)
testimony by co-defendant Ben Wright that McCleskey later told
Wright he had pulled the trigger; and (iii) testimony by
informant Offie Evans' about McCleskey's "jailhouse confession."
(Id.).
In assessing the weight of this evidence, the District Court
found that the first two prongs were not powerful. The State's
evidence on the first prong -- who was carrying the murder weapon
on the day ofi the crime ~~ was in conflict. (J.A. 89). Indeed,
one of the State's witnesses, Mary Jenkins, had been confronted
on cross-examination with a prior statement to police in which
she identified her boyfriend, Ben Wright, and not McCleskey, as
the person who regularly carried the .38 Rossi. (J.A. 11-13).
The District Court also found that Ben Wright's damaging
testimony, recounting Mr. McCleskey's ostensible confession to
Wright, was "obviously impeachable" because Wright was himself a
prime suspect in the shooting who had a clear motive to shift
responsibility for the murder to someone else. (J.A. 30)
Having found that the State's other evidence against
McCleskey on the murder count was weak or in conflict, the
District Court concluded that Offie Evans' testimony detailing
McCleskey's ostensible jailhouse confession "was critical to the
62
state's case". (J.A. 89) and that its admission into evidence was
not harmless.
B. The Panel’s Contrary View Of The Record
The panel disregarded the District Court's key findings of
fact on the harmless error issue, substituting its own instead.
Addressing the identity of the robber who carried the .38 Rossi,
for example, the panel cited only that portion of the trial
testimony that pointed toward McCleskey (J.A.133); it ignored
both the strong contrary evidence and the District Court's
express finding that the testimony was "conflicting."
Similarly, the panel noted co-defendant Ben Wright's testimony
that McCleskey had confessed to being the triggerman (J.A. 133);
it ignored the District Court's finding that Wright's testimony
was "obviously impeachable.™
In sum, while the District Court found that the non-tainted
evidence was severely compromised, the panel on appeal
independently reweighed that evidence and found that it
"presented a clear indication of McCleskey's guilt." (J.A. 135).
Having thus substituted its own reading of the record for that of
the District Court, the panel concluded that the State's
introduction of Offie Evans' jailhouse confession was harmless
error.
*“ The panel made several references to the opinion
announced by the en banc Eleventh Circuit on Mr. McCleskey's
initial federal habeas appeal. The District Court, on that first
petition, granted habeas relief to Mr. McCleskey under Giglio v.
63
C. The Obligations of Rule 52 (a)
The panel's holding neglected this Court's repeated
teachings about Rule 52(a). In Amadeo v. Zant, for example, the
Court observed that
[a]lthough there is significant evidence in the record to
support the findings of fact favored by the Court of
Appeals, there is also significant evidence in the record to
support the District Court's contrary conclusion . . . We
frequently have emphasized that '[w]here there are two
permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous.' Anderson Vv. :
Bessemer City, 470 U.S. at 574, citing United States v.
Yellow Cah, Co., 338. U.S. 338 (1949), and Inwood
or sr stars 4305 U.8. 150 (1972), finding that Offie Evans had
lied to the jury by failing to disclose that his testimony was
being given in exchange for a promise from State officials.
McCleskey v. Zant, 580 F. Supp. 338, 381-383 (N.D. Ga. 1984).
The en banc Court of Appeals later reversed that judgment,
finding that any Giglio violation had constituted harmless error.
McCleskey v. Kemp, 753 F.2d 877, 884-885 (11th Cir. 1985) (en
banc). While the panel below acknowledged that the en banc
court's earlier holding "occurred in the context of McCleskey's
Giglio claim" (J.A. 131), it nonetheless concluded that the prior
holding "clearly has bearing on the import of Evans' testimony in
the context of McCleskey's Massiah claim." Id.
Yet very different evidentiary consequences flow from
findings of Giglio and Massiah violations. To correct a Giglio
violation, if proven, would require the State in Mr. McCleskey's
case to inform any subsequent jury that, in addition to other
evidence they should weigh in evaluating Offie Evans' testimony,
they should know that Evans was testifying in exchange for a
promise. To correct a Massiah violation, by contrast, would
require the State to present its case without any use of Offie
Evans' testimony concerning Warren McCleskey's jailhouse
"confession." To confound the likely harm to Warren McCleskey
from these very different outcomes is a serious error.
The panel also appears to rely on the en banc's court's
earlier assessment of Evans' testimony in light of the other
evidence presented to the jury. (J.A. 131-132). Since that court
did not itself consider the possible impact of the total
exclusion of Evans' testimony on the State's case, and since the
parties did not argue that question to the prior en banc court,
any dicta by that court should have carried little weight with
the subsequent panel, and none with this Court.
64
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844
(1982). We reaffirm that stricture today.
486 U.S. at 225-226. The panel simply did not heed that caution.
Furthermore, as it reweighed the evidence, the panel
improperly discounted the potent evidentiary impact of Evans'
testimony. It followed the reasoning of the prior en banc court
(see note 44 supra), finding that the impact of the confession
was harmless, in large part, because it was "not developed at
length? during the trial testimony. (J.A. 134). Yet tne relative
brevity of Evans' testimony did nothing to minimize its force.
Evans' account -- stressing not only McCleskey's ostensible
admission that he was the triggerman, but his boast that he would
have killed a dozen officers had it been necessary -- need have
been not a word longer to have seared into the jury's collective
memory. Justice White recently underscored the profound impact
which accounts of a defendant's confession can have upon a jury:
"[Tlhe defendant's own confession is probably the most
probative and damaging evidence that can be admitted against
him. Though itself an out-of-court statement, it is
admitted as reliable evidence because it is an admission of
guilt by the defendant and constitutes direct evidence of
the facts to which it relates. Even the testimony of an
eyewitness may be less reliable than the defendant's own
confession. An observer may not correctly perceive,
understand, or remember the acts of another, but the
admissions of a defendant come from the actor himself, the
most knowledgeable and unimpeachable source of information
about his past conduct.” [Bruton v. Inited States, 391 U.S.
123], 139-40 [1968] (White, J. dissenting). Confessions of
defendants have profound impact on juries, so much that we
held in Jackson v. Denno . . . that there is justifiable
doubt that juries will disregard them even if told to do so.
Cruz v. New York, 481. U.S. 188, 195 (1987) (White, J.
4
dissenting).
65
The panel also reasoned that there was "no reasonable
likelihood" that the jury's sentencing verdict, its decision to
impose a death sentence, had been affected by Evans' testimony,
in part, because "[t]he prosecutor did not introduce Evans as a
witness at the sentencing phase." (J.A. 134). Yet, as we have
noted, Offie Evans was the penultimate witness to take the stand
at the guilt phase, and neither party presented additional
evidence at the sentencing phase. Thus, Offie Evans’ testimony
was fresh in the jury's mind when it began its deliberations,
both at the guilt phase, and at penalty.
Evans' testimony, indeed, played a singular role. Other
State's witnesses either had not seen the shooting, or, like Ben
Wright and Mary Jenkins, possessed a strong motive to twist the
truth. As this Court noted recently in Satterwhite v. Texas, 486
U.S. 249 (1988), the testimony of a singular, disinterested
witness on a critical issue at the penalty phase of a capital
trial is rarely, if ever, harmless error. Offie Evans played
just such a role for the State in Warren McCleskey's case.
The District Court's factfindings on the harmless error
issue should not have been ignored by the panel, and the District
Court's conclusion -- that the State has not proven that its
Massiah violation was harmless beyond a reasonable doubt --
should be reinstated by this Court.
66
CONCLUSION
The judgment of the Court of Appeals should be reversed.
Dated: July 30, 1990 Respectfully submitted,
JULIUS IL.. CHAMBERS, III ROBERT H. STROUP
RICHARD Hs. BURR, I11 141 Walton Street
GEORGE H. KENDALL Atlanta, Georgia 30303
99 Hudson Street (404) 522-8500
New York, New York 10013
(212) 219-1900
ANTHONY G. AMSTERDAM * JOHN CHARLES BOGER
New York University School of Law, CB# 3380
School of Law Van Hecke-Wettach Hall
40 Washington Square South Chapel Hill, North Carolina 27599
New York, New York 10012 (219) 962-8516
(212) "998-6198
ATTORNEYS FOR PETITIONER
WARREN McCLESKEY
BY:
* Attorney of Record
67