Amicus Brief for Petitioner

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No. 89-7024 
  
  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term 1989 

  

WARREN MCCLESKEY, 
Petitioner, 

VS. 

WALTER ZANT, Warden, 
Respondent. 

  

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

FOR THE ELEVENTH CIRCUIT 

  
  

BRIEF OF THE ALABAMA CAPITAL 
REPRESENTATION RESOURCE CENTER, 

VOLUNTEER LAWYERS’ RESOURCE CENTER OF 
FLORIDA, INC., AND GEORGIA APPELLATE PRACTICE 

AND EDUCATIONAL RESOURCE CENTER, INC. 
IN SUPPORT OF PETITIONER 

  
  

*MARK E. OLIVE 

Georgia Appellate Practice and 
Educational Resource Center 

920 Ponce de Leon Ave., N.E. 

Atlanta, Georgia 30306 

(404) 898-2060 

*Counsel of Record for Amici Curiae 
  

  
   



    

 



  

TABLE OF CONTENTS 
  

Table of Authorities . wu esc. a se 

Interest of Amici -Cariae  . +" «io Site 

Summary of 

Argument . 

1. 

It. 

Conclusion 

ATGUISNL. +a fir iets oven 

THE DECISION IN McCLFSREY V, 
ZANT, 890 F.24 342 (11TH CIR. 
1989), IMPOSES A STRICT 
LIABILITY STANDARD OF 
PERFORMANCE ON FEDERAL HABEAS 
COUNSEL WHICH IS NOT ONLY 
UNPRECEDENTED, BUT ALSO 
IMPOSSIBLE TO MEET WITHOUT AN 
INFUSION OF ADDITIONAL 
RESOURCES "FAR IN "EXCESS OF 
THOSE NOW AVAILABLE TO 
ATTORNEYS REPRESENTING HABEAS 
PETITIONERS. ov we ¢ 5d «Tete o 

  

THE DECISION IN McCLESKEY V,. 
ZANT, 890 P.24 342 (11TH CIR. 
1989), UNDERMINES INCENTIVES 
FOR STATES TO COMPLY WITH 
CONSTITUTIONAL MANDATES AND 
ENCOURAGES STATES TO CONCEAL 

  

VIOLATIONS OF CAPITAL 
DEFENDANTS CONSTITUTIONAL 
RIGHTS BY REWARDING THEM 
FOR DOING SO ‘on on iepia veri, to 

10 

 



  

TABLE OF AUTHORITIES 
  

  

cases 

Amadeo v. Zant, 486 U.S. , 
108 s.Ct. 1771 (1988). . . . . . .passim 
  

Massiah v. United States, 377 U.S. 
201 (1964) . . . . . . + +» +s « » passim 
  

McCleskey v. Zant, 890 F.2d 342 
(11th Clr. 1989) + vu vie ooivae pASSiIn 
  

Moore v. Zant, 885 F.2d 1497 
(LIEN. Cir. 1989) «..o wrgeieiionise=s + + +20 
  

Murray Vv. Carrier, 477 U.S. 478 (1986). . .19 
  

Solomon v. Kemp, 735 F.2d 395 
(11th Cir. 1984) . se sueie nus + + 18 
  

Strickland v. Washington, 466 U.S. 668 
(1984) LJ ° LJ LJ ® » ® LJ LJ LJ \d LJ LJ LJ ° .18 

  

United States v. Bagley, 473 U.S. 667 
(1985) LJ LJ LJ LJ L LJ MN LJ LJ [J LJ LJ LJ LJ LJ «28 

  

Treatises 
  

A. Amsterdam, Trial Manual 5 for the 
Defense of Criminal Cases (1989) . . .19 
  

  

W. Prosser, Law of Torts (4th ed. 1975) . .16 
  

ii 

 



INTEREST OF AMICI CURIAE 
  

Amici Curiae - Alabama Capital 

Representation Resource Center, Volunteer 

Lawyers' Resource Center of Florida, Inc., and 

Georgia Appellate Practice and Educational 

Resource Center, Inc. (hereinafter "Resource 

Centers") =-- aid in the post-conviction 

representation of death-sentenced inmates in 

states most directly affected by the Eleventh 

Circuit Court of Appeals’ decision in 

McCleskey v, Zant, 890 F.2d 342 (11th Cir. 
  

1989). The Resource Centers, established in 

part through the efforts of the federal 

judiciary and funded in part by the Judicial 

Council and the Criminal Justice Act, were 

created to help ensure that all death- 

sentenced inmates in Alabama, Florida, and 

Georgia are adequately represented in their 

post-conviction appeals.? 

Amici strongly concur with, and cannot 

improve upon, the contentions in the Brief for 

  

1. Amici file this brief in support of 
Petitioner by written consent of all parties 
pursuant to Rule 37.3 of the Rules of this 
Court. The parties' letters of consent are 
on file with the Clerk of the Court. 

   



  

Petitioner (1) that the lower court penned 

onerous new law and failed properly to apply 

long-standing precedent regarding deliberate 

abandonment and inexcusable neglect in 

resolving whether Petitioner had abused the 

writ of habeas corpus, and (2) that the lower 

court wrongly "substituted its own factual 

findings for those of the District Court" and 

wrongly "rejected the District Court's 

conclusion that petitioner's lawyers did not 

deliberately bypass," Amadeo v. Zant, 486 U.S. 
  

214, 224 (1988), presentation of Petitioner's 

compelling claim under Massiah vv. United 
  

States, 377 U.S. 201 (1964). While some is 

said in the Brief of Petitioner about the 

lower court's unwriting of precedent, the 

brief mainly focuses upon the fact of the 

unwriting rather than upon the resulting 

impact. For example, as put by Petitioner, 

"[w]lhatever may be said for the wisdom of [the 

lower court's] rule, it is indisputably not 

   



the present law." Brief of Petitioner at 

2 

Amici are uniquely situated to address 

"the wisdom" of the lower court's new rule. 

The opinion in McCleskey v. Zant, 890 F.2d 342 
  

(11th Cir. 1989), will severely impair the 

ability of the Resource Centers to accomplish 

the mission for which they were established: 

(1) to recruit additional, highly qualified 

volunteer counsel to represent capital inmates 

in state and federal collateral review 

proceedings; and (2) to provide resources to 

volunteer counsel -- such as assistance in 

investigating cases, identifying issues, 

researching petitions and briefs, and 

preparing for hearings -- to enable them to 

represent their clients zealously and 

effectively. These are highly relevant 

consequences that have not already been 

  

2. At the time amici prepared this 
Brief, the Brief of Petitioner was not in 
final form. Because proper page citation to 
that brief is not possible, all references by 
amici to written arguments made and facts 
discussed by Petitioner will hereinafter cite 
Mr. McCleskey's Petition for Writ of 
Certiorari. 

  

  

  

 



  

brought to the Court's attention by the 

parties, and, it is respectfully suggested, an 

explication of these consequences would be of 

considerable help to the Court. Rule 37.1. 

Recruitment of volunteer counsel will be 

impeded by McCleskey's requirement that 
  

volunteer counsel perform under a strict 

liability standard. The ruling in McCleskey 
  

requires volunteer counsel to: (1) identify 

every potential claim in a case, whether or 

not there is any available factual support 

whatsoever for the claim; (2) investigate each 

claim exhaustively, even if there have been 

numerous representations and indications that 

the claim is factually unsupportable; (3) 

continue to assert identified claims for which 

counsel has been unable to garner factual 

support, because of the possibility that in 

the future, facts substantiating the claims -- 

which may even have been purposefully 

concealed by the State =-- will be divulged; 

and (4) carry out these responsibilities 

whether or not counsel has the resources to do 

SO or can obtain such resources from the 

4 

 



courts. These conditions will make attorneys 

who might otherwise volunteer to represent a 

death-sentenced inmate extremely reluctant -- 

and outright frightened -- to do so.3 

In addition, under the current staffing 

and funding levels of the Resource Centers, 

the McCleskey standard will force Resource 
  

Centers to devote more time and resources to 

fewer cases in order to approach the goal of 

effective representation, since no case can be 

handled properly under McCleskey without an 
  

exponential increase in the amount of time and 

resources devoted to the case. Finally, the 

Resource Centers' goal of zealously and 

effectively protecting the constitutional 

rights of death-sentenced inmates will be 

seriously undermined by the lesson of the 

McCleskevy decision: that states have 
  

  

3. Ethical standards such as 
Fed.R.Civ.P. 11 may require that claims be 
abandoned due to a lack of discovered factual 
support. Nevertheless, McCleskey requires 
that volunteer counsel -- in contravention of 
Rule 11 and without any guarantee that they 
will not be sanctioned under that Rule -- 
continue to assert baseless claims. See 
footnote 11, infra. 

   



   absolutely no incentive voluntarily to comply 

with constitutional mandates and, instead, 

will be rewarded for illegally concealing 

constitutional violations -- if the violation 

is hidden long enough, the death-sentenced 

inmate will not be heard to complain that he 

or she was denied basic safeguards guaranteed 

by our’ Constitution. These consequences 

should be considered by this Court, and the 

Resource Centers' distinctive role in the 

capital post-conviction process in the 

Eleventh Circuit enables them to provide 

considerable help to the Court in support of 

Petitioner. 

   



SUMMARY OF ARGUMENT 
  

The decision in McCleskey Vv. Zant, 890 
  

F.24 “342 (11th Cir. 1989), will have far- 

reaching implications for the litigation of 

federal habeas corpus petitions by condemned 

prisoners. McCleskey imposes a strict 
  

liability standard on the performance of 

habeas counsel. The McCleskey court found 
  

that Petitioner abused the writ by not 

asserting his claim under Massiah v. United 
  

States,” 377-U.8. 201 (1964) in his ‘first 

federal habeas petition, although the court 

did not find that it was unreasonable or 

inexcusably neglectful for Petitioner not to 

have been aware of the factual substantiation 

for that claim -- which had been persistently 

concealed by the State -- at the time he filed 

his first federal habeas petition. 

A strict liability standard is 

unprecedented as a means of determining the 

consequences of a criminal defendant's failure 

to discover factual bases for a claim. It is 

likewise at odds with settled abuse of the  



  

writ principles and with the "eguitable 

underpinnings of the abuse of the writ 

doctrine. Moreover, the strict liability 

performance standard imposes an impossible 

burden on habeas counsel exhaustively to 

investigate every potential claim and to 

continue to assert claims even in the absence 

of available factual support. 

McCleskey also creates a disincentive for 
  

states voluntarily to comply with 

constitutional mandates. The State concealed 

its violation of Petitioner's Sixth Amendment 

rights for nine years, despite diligent and 

repeated requests by Petitioner's trial and 

habeas counsel for any information which might 

reveal the violation. For its chicanery, the 

State went not merely unpunished, but was 

rewarded with a finding that Petitioner -- the 
  

innocent dupe in the State's ongoing scheme -- 

had abused the writ of habeas corpus by 

asserting the claim in a second federal habeas 

petition immediately after he serendipitously 

discovered the factual evidence that had long 

been concealed by the State. This Court has 

8 

 



refused to reward states' misconduct by 

procedurally barring petitioners' claims in 

the procedural default context, and it should 

likewise decline to condone state wrongdoing 

in the abuse of the writ setting. 

 



  

ARGUMENT 
  

I. THE DECISION IN McCLESKEY V. ZANT, 
890° F.2d. 342 °(11TH CIR. 1989), 
IMPOSES A STRICT LIABILITY STANDARD 
OF PERFORMANCE ON FEDERAL HABEAS 
COUNSEL WHICH IS NOT ONLY 
UNPRECEDENTED, BUT ALSO IMPOSSIBLE 
TO MEET WITHOUT AN INFUSION OF 
ADDITIONAL RESOURCES FAR IN EXCESS 
OF THOSE NOW AVAILABLE TO ATTORNEYS 
REPRESENTING HABEAS PETITIONERS 

  

As Mr. McCleskey's Petition for Writ of 

Certiorari points out, the. lower . court's 

opinion in McCleskey Vv. Zant, 890 F.2d 342 
  

(11th Cir. 1989), transmogrifies the "abuse of 

the writ" doctrine to hold federal habeas 

petitioners, and their attorneys, strictly 

liable for any failure to discover factual 

support for a claim during a first federal 

habeas petition, regardless of the reason for 

that failure. See Petition for Writ of 

Certiocrari at 28-31. The Eleventh Circuit 

Court of Appeals found that Petitioner abused 

the writ of habeas corpus by not including his 

claim under Massiah v. United States, 377 U.S. 
  

201 (1964), in his .first federal : habeas 

petition, even though at the time the first 

petition was filed, Petitioner and his 

10 

   



attorneys did not know, and had no reason to 

know, that there was factual support for the 

claim.? 

  

4. After the conclusion of Petitioner's 
first federal habeas corpus proceedings, 
habeas counsel fortuitously discovered 
evidence clearly establishing a Massiah 
violation. See Petition for Writ of 
Certiorari at 13 & n.8. The facts proving 
the violation -- although concealed by the 
State for nine years -- were never seriously 
disputed after they were revealed. 
Petitioner and three co-defendants were 
arrested for a robbery during which a police 
officer was killed. In an effort to discover 
which of the four participants killed the 
officer, the victim's fellow officers 
launched a scheme to procure an illegal 
confession from Petitioner. Several 
detectives met with a known jailhouse 
informer, Offie Evans, and a jailer, Ulysses 
Worthy, at the Fulton County Jail where 
Petitioner was confined. During that 
meeting, the detectives asked Mr. Worthy to 
move informer Evans from another part of the 
jail into a cell adjacent to Petitioner's 
cell. The detectives then arranged for Evans 
to elicit a "confession" from Petitioner, by 
coaching Evans about how to approach 
Petitioner and giving Evans critical facts 
about the crime unknown to the general 
public. See Petition for Writ of Certiorari 
at 3-6; McCleskey v. Zant, Civil Action No. 
C87-1517A  (N.D.Ga. Dec. 13, 1987).at 23-30. 
  

Pursuant to the conspiracy, Evans was 
transferred to a cell next to Petitioner's 
and engaged Petitioner in conversation. 
Eventually, Evans reported all that he had 
purportedly learned from Petitioner, 
including an alleged confession to the 
shooting, to an Assistant District Attorney. 

(continued...) 

il  



  

The McCleskey court did not examine 
  

whether counsel's ignorance of the facts 

supporting Petitioner's Massiah claim at the 

time of the first federal habeas proceedings 

resulted from an unreasonably sub-standard 

attorney performance in investigating the 

claim.?® Rather than analyzing whether 

  

4. (...continued) 
Evans also recorded his tactics and the 
results in a stunning 21 page statement to 
police officials. The information obtained 
by Evans from Petitioner was the key evidence 
used against Petitioner at his trial, and the 
basis for Petitioner's conviction for malice 
murder and sentence of death. See Petition 
for Writ of Certiorari at 15-19; McCleskey Vv. 
Zant, Civil Action No. C87-1517A (N.D.Ga. 
Dec. 13, 1987) at 29-31. Evans' relationship 
with the police and the existence of his 21 
page written statement were concealed by the 
State for nine years after Petitioner's 
trial, despite repeated attempts by 
Petitioner's trial and habeas counsel to 
obtain such information. See Petition for 
Writ of Certiorari at 8-14, 29-30 n.16. 

  

  

5. The District Court specifically 
found that reasonably competent counsel could 
not have discovered the evidence supporting 
Petitioner's Massiah claim at the time the 
first federal habeas petition was filed. See 
Order in McCleskey v. Zant, Civil Action No. 
C87-1517A (N.D.GCa. Dec. 13, 1987) at 25; 

Petition for Writ of Certiorari at 30. Mr. 
McCleskey's Petition for Writ of Certiorari 
details the arduous efforts of counsel to 
obtain factual support for the claim prior to 
filing the first federal habeas petition, see 

(continued...) 

  

12 

   



counsel's failure to discover the key evidence 

of a Massiah violation was the product of 

inexcusable neglect, a lack of due diligence, 

or a failure to undertake reasonable 

investigation, the Eleventh Circuit Court of 

Appeals determined that assertion of the 

Massiah claim in a second federal habeas 

petition was abuse of the writ simply because 

counsel purportedly could have discovered the 

  

evidence earlier. McCleskey v. Zant, 890 F.2d 

at 348-50. The fact that evidence in support 

of the Massiah claim ultimately surfaced 

during the second federal habeas proceeding 

convinced the court that the evidence was 

discoverable at an earlier time.® Without 

  

5. (...continued) 
e.d., p. 8-14, 29-30 n.16, all of which were 
impeded by =-- viewed in the most generous 
light -- "misrepresentations" by a variety of 
state actors, which resulted in the 
concealment of evidence crucial to the 
Massiah claim for nine years. 

6. Even under the court's improper 
"could have discovered" standard -- which 
wholly ignores the reasonableness and 
diligence of counsel's earlier search for 
factual substantiation of a Massiah violation 
-- it is not at all clear that Petitioner 
abused the writ. Because the State 

(continued...) 

13  



  
  

finding counsel's initial investigation of the 

claim unreasonable or incompetent, the court 

concluded that Petitioner had abused the writ 

because counsel's early investigative efforts 

were "somewhat lacking" and counsel could have 
  

engaged in a "more extensive effort at thle 
  

time of the initial petition] to track down 

persons with information." McCleskey, 890 
  

F.2d at 349-350 (emphasis added).’ 

  

6.. {...continued) 
persistently concealed the evidence, see 
e.dg., Petition for Writ of Certiorari at 8- 
14, counsel's investigatory efforts, no 
matter how thorough, may not have uncovered 
the crucial information before the first 
federal habeas petition was filed. Counsel 
was only able to discover the critical piece 
of evidence after a change in the Georgia 
Open Records law which occurred after the 
first federal habeas proceeding. See 
Petition for Writ of Certiorari at 13 &.n.S. 
That one piece of evidence ultimately led, 
through a long and tortuous path, to the 
discovery of the clear Massiah violation in 
Petitioner's case. Id. at 13-14. 

7. An analytical framework for 
assessing the reasonableness of counsel's 
decision not to undertake additional 
investigation was developed by the Eleventh . 
Circuit Court of Appeals in Foster v. Dugger, 
823 F.2d 402, 405 (11th Cir. 1927), cert, 
denied, 108 S.Ct. 2915 (1988): 

  

When assessing a decision not 
to investigate, we must make 'every 

(continued...) 

14 

 



In so holding, the Eleventh Circuit Court 

  

7. 4{...continued) 
effort . . . to eliminate the 
distorting effects of hindsight, to 
reconstruct the circumstances of 
counsel's challenged conduct, and 
to evaluate the conduct from 
counsel's perspective at the time.’ 
Strickland v. Washington, 466 U.S. 
at 689. Counsel need not 'pursue 
every path until it bears fruit or 
until all available hope withers." 
Solomon v. Kemp, 735.F.24 395, 402 
(11th Cir. 1984) (quoting Lovett v. 
Florida, 627 F.2d 706, 708 (5th 
Cir. 1980)); see also Washington v. 
Watkins, 655 F.2d 1346, 1356 (11th 
Cir. Unit A 1981), cert. denied, 
456 U.S. 949 (1982). The 
appropriate legal standard is not 
error-free representation, but 
‘reasonableness in all the 
circumstances, applying a heavy 
measure of deference to counsel's 
judgments.' Strickland v. 
Washington, 466 U.S. at 691, 104 
S.Ct. at 2066; see also Darden Vv. 
Wainwright, 477 U.S. 187 (1986). 
Accordingly, it is necessary to 
review those factors that 
influenced [counsel's] decision to 
forego further investigation . . . 

  

  

  

  

  

  

  

  

  

Under this standard, counsel's decision 
to cease his considerable investigation of 
the Massiah violation in Petitioner's case -- 
an entirely fruitless investigation due to 
the State's successful concealment of the 
necessary evidence -- was eminently 
reasonable. Those formidable efforts, and 
their futility, are detailed in Mr. 
McCleskey's Petition for Writ of Certiorari 
at 8-14, 29-30 n.16, and will not be repeated 
here. 

15  



  

Of . Appeals applied a . "strict. liability" 

standard to gauge the performance of habeas 

counsel -- "the principle that in some cases 

the defendant may be held liable, although he 

. « «» has not . . . departed in any way from a 

reasonable standard of intent or care." W. 

Prosser, Law of Torts § 75 at 494. (4th ead. 
  

1971). Under the ruling in McCleskey, habeas 
  

counsel has the burden of conducting more than 
  

reasonable investigation, more than competent 
  

investigation, and more than diligent 

investigation: counsel must conduct successful 
  

investigation -- regardless of the impediments 

strewn in his or her path -- or forever 

relinquish a claim. The repeated early 

efforts of Petitioner's counsel to secure 

factual support for his Massiah claim, all 

thwarted by State misconduct and concealment 

of the evidence, see Petition for Writ of 

Certiorari at 8-14, were insufficient for 

abuse of the writ purposes simply because they 

were unsuccessful, according to McCleskey. 
  

Concededly, a more exhaustive 

investigation, in which every person who 

16 

   



remotely might have known of the facts 

establishing Petitioner's Massiah violation 

was interviewed, might have uncovered the 
  

evidence earlier.8 However, such an 

investigation has never before been required 

in any other criminal law context where 

counsel fails to discover evidence. The 

consequences of counsel's failure to discover 

the factual basis for a claim is never gauged 

simply by demonstrating that, through a more 

extensive investigation, counsel could have 

discovered the evidence. Instead, the 

question is whether counsel should have 

  

8. For the argument that the evidence 
was simply undiscoverable, see footnote 6, 
supra. In Petitioner's case, a thoroughly 
exhaustive investigation would have required 
interviewing hundreds of jailers in an 
indiscriminate attempt to find the one who 
might have information, see Petition for Writ 
of Certiorari at 10-11 n.6, even before the 
critical fact raising suspicions of a Massiah 
violation -- the 21 page statement of 
informer Offie Evans -- had been revealed. 
The statement was discovered only after a 
change in Georgia's Open Records law which 
occurred after the first federal habeas 
proceeding. See footnote 6, supra. Before 
he had the statement, counsel did in fact 
track down and interview the few jailers whom 
he was told would be most knowledgeable about 
the situation. Petition for Writ of 
Certiorari at 10. 

  

17  



  
  

undertaken the additional investigation 

necessary to find the evidence, measured by a 

"reasonableness" or "due diligence" standard. 

The McCleskey court omitted this crucial 
  

analytical step, and instead established a new 

rule requiring habeas counsel to "pursue every 

path until "it bears "fruit or until all 

available hope withers." Solomon v. Kemp, 735 
  

F.2d 395, 401 (11th Cir. 1984) (quoting Lovett 

¥:. Florida, 627 "F.24'° "706, 708" (5th "Cir. 
  

1980) ). 

This requirement -- strict liability for 

failure to discover evidence regardless of the 

reasons for that failure -- is unprecedented, 

at odds with governing abuse of the writ 

principles, and unworkable. In no other 

criminal law context is counsel required to 

meet such a standard of performance. For 

example, in representing a criminal defendant, 

counsel's performance need only be reasonable. 

Strickland v. Washington, 466 U.S. 668 (1981). 
  

To secure a new trial on the basis of evidence 

newly discovered after trial, counsel need 

only show that his or her failure to discover 

18 

 



the evidence earlier was not due to a failure 

to exercise due diligence. See 3 A. 

Amsterdam, Trial Manual 5 for the Defense of 
  

Criminal Cases § 457, at 281-82 (1989) (noting 
  

that the due diligence standard is a "time- 

honored" component of the criteria for 

obtaining a new trial based on newly 

discovered evidence). TO overcome a 

procedural default created by counsel's 

ignorance of facts material to a claim, 

counsel need only "show[] that the factual . . 

. basis for a claim was not reasonably 

available to counsel... i. 1 Murray Vv.   

Carrier, 477 U.S. 478, 483 ..(1986); see also   

Amadeo v. Zant, 486 U.S. 108 S.Ct. 1771 
  

(1988) (applying the Carrier rule). 

Moreover, settled abuse of the writ 

principles are manifestly in conflict with a 

strict liability performance standard. 

Ironically, the McCleskey court itself cited   

these long-standing principles, before 

ignoring them: 

Once the state has alleged abuse of 
the writ, the petitioner must be 
afforded the opportunity to justify 

19 

 



  

his previous failure to raise the 
claim. In deciding whether a 
petitioner has presented sufficient 
justification, courts have required 
the petitioner to show that he did 
not deliberately abandon the claim 
and that his failure to raise it was 
not due to inexcusable neglect. See 
Woodard v. Hutchins, 464 U.S. 377, 
379, 104 S.Ct. 752, 753, 78 L.Ed.24 

541 (1984) (per curiam) (Powell, J., 
concurring, joined by four other 
justices); Demps v. Dugger, 874 F.2d 
1385, “3093 (11th Cir. 1989), 
petition for cert. filed, No. 89- 
5277, 1989 WL 113448 (Aug. 4, 1989); 
Witt v. Wainwright, 755 F.2d 1396, 
1397 (11th Cir.), cert. denied, 470 
u.s. 1039, 105. S.Ct. 1415, 84 

L.Ed.2d 801 (1985); Potts v. Zant, 
638 F.24 727, 740-41 (5th Cir. Unit 

B 1981), cert. denied, 454 U.S. 877, 
102 S.Ct. 357, 709 L.Fd.24 . 187 

(1981). 

  

  

  

  

  

McCleskey, 890 F.2d at 347. This standard, as 
  

interpreted by the Eleventh Circuit prior to 

McCleskey, forgives federal habeas counsel's 

failure to raise a claim in a prior federal 

petition when the legal or factual basis of 

the claim was unknown, so long as "reasonably 

competent counsel" would not have been aware 

of the basis for the claim. Moore v. Zant, 
  

885 F.2d 1497, 1506 (11th Cir. 1989) (en banc). 

Counsel who, like Petitioner's counsel, (1) 

conducts a reasonable, though less than fully 

20 

 



exhaustive, investigation, see footnote 5, 

supra; (2) fails as a result to discover the 

facts necessary to establish a claim, see id. 

and footnote 6, supra; and (3) for this reason 

does not raise the claim in an earlier 

petition, see Petition for Writ of Certiorari 
  

at 12, should not and cannot be held to have 

abused the writ or deliberately abandoned the 

° when facts material to the claim -- claim 

which had been hidden by the State -- are 

later discovered and the claim is immediately 

presented in a subsequent petition. 

The strict liability standard is also at 

odds with the equitable underpinnings of 

federal courts' power to dismiss habeas corpus 

petitions. See McCleskey, 890 F.2d at 346. 
  

"In cases of abuse of the writ, equity 

counsels against allowing 'needless piecemeal 

litigation' or 'collateral proceedings whose 

only purpose is to vex, harass, or delay.'" 

Id. (citation omitted). Conversely, equity 

must require that petitioners be permitted to 

  

9. eé Petition for Writ of Certiorari 
at 29-30. 

21  



  

present successive petitions which do not 

constitute needless piecemeal litigation or 
  

are not filed only to vex, harass, or delay. 
  

Equitable principles dictate that, in some 

circumstances, federal courts be willing to 

find that a habeas petitioner's counsel had 

previously done "enough" to investigate a 

claim, such that failure to discover facts 

substantiating the claim earlier does not bar 

successive presentation of the claim upon 

ultimate discovery of the necessary facts. 

The imposition of a strict 1liability 

performance standard for habeas counsel is not 

only unprecedented and contrary to governing 

principles of -: law, - iit. is also utterly 

impossible to accommodate. If the Eleventh 

Circuit Court of Appeals' analysis in 

McCleskey is the law, the task of habeas 
  

counsel in investigating potential 

constitutional claims is staggering. Every 

potential «claim depending on non-record 

evidence in every case must be investigated 

until substantiating evidence is found (even 

if that evidence is being hidden by the 

22 

   



    State), or until there is no other conceivably 

material witness to interview or conceivably 

material document to obtain.l° Even then, 

habeas counsel cannot abandon the claim, 

because such abandonment would foreclose 

future :litdgation v ofthe olaim: if new, 

unthought-of evidence thereafter became 

available. No lawyer providing zealous 

representation to a death-sentenced inmate 

could take such a risk. Thus, the notion of 

reasonable attorney judgments about the scope 

of investigation and the viability of claims 

will evaporate, and, with its demise, the cost 

of litigating each death penalty habeas case 

will go up exponentially.ll 

  

10. In Petitioner's case, this would 
have required interviewing several hundred 
jailers who worked at the Fulton County Jail 
where Petitioner was incarcerated, because 
the key document suggesting a Massiah 
violation was persistently withheld by the 
State. See Petition for Writ of Certiorari 
at 10-11 n.é6. 

11. In addition to monetary costs, the 
burden on federal courts reviewing habeas 
petitions, and volunteer attorneys presenting 
them, will increase substantially. By 
essentially prohibiting abandonment of non- 
record evidence claims, the McCleskey rule 

(continued...) 
  

23 

 



  

Under the McCleskey strict liability 
  

standard, every case will now consume far more 

resources than are presently available. It is 

impossible to determine the long-term 

consequences of such a rule, but, for the 

present, radical changes will be required in 

the operation of the amici curiae Resource 
  

Centers in the Eleventh Circuit. The number 

of cases in which amici curiae provide 
  

assistance to volunteer counsel necessarily 

will be severely reduced, so that resources 

can be focussed on attempting to comply with 

the strictures of McCleskey in at least some 
  

  

i1l.-+(. continued) 
will force the courts and counsel to wade 
through numerous as yet unsubstantiated 
claims in every federal habeas petition. 
Moreover, presenting such claims will pose an 
ethical dilemma for volunteer counsel. 
Counsel cannot comply with the mandate of 
McCleskey to continue presenting claims with 
no factual support and the mandate of 
Fed.R.Civ.P. 11, requiring counsel to certify 
that claims presented to the federal court 
are "well grounded in fact." Volunteer 
counsel will be forced to choose between the 
life of a death-sentenced prisoner and the 
possibility of severe sanctions for unethical 
conduct. These burdens on counsel and the 
courts are critical components of the "cost" 
equation which must be considered in 
evaluating the McCleskey standard. 

  

24 

 



cases. Investigative resources and staff 

attorney time now available to all volunteer 

counsel will be redirected to this reduced 

caseload, leaving volunteer counsel to whom 

amici curiae Resource Centers can no longer 
  

devote resources to fend for themselves, 

without significant support from, or 

consultation with, the Resource Centers. 

Inevitably, these "abandoned" volunteer 

counsel will be forced to ask the federal 

courts for heretofore unheard of financial 

assistance to comply with McCleskey.12   

Ironically, the Eleventh Circuit Court of 

Appeals' decision in McCleskey comes at a time 
  

of national focus on the conduct of capital 

federal habeas corpus proceedings. The Ad Hoc 

  

12. This assumes that volunteer counsel 
will continue to come forward. It is not 
unimaginable that the pool will quickly dry 
up when prospective volunteer counsel learn 
that they bear the burden of representing a 
death-sentenced inmate under a strict 
liability performance standard, and the 
burden of risking Fed.R.Civ.P. 11 sanctions 
for operating within the dictates of 
McCleskey. See footnote 11, supra. 
McCleskey may well demand too much of lawyers 
who provide their services as volunteers to 
meet a need which is universally -- but not 
constitutionally -- recognized. 

  

  

25  



  

  

Committee on Federal Habeas Corpus in Capital 

Cases of the Judicial Conference of the United 

States ("Powell Committee"), the American Bar 

Association Task Force on Death Penalty Habeas 

Corpus, Congress, this Court, and other 

federal courts have become acutely concerned 

about chaos, unfairness, and inefficiency in 

  

capital federal habeas corpus. The new 

McCleskey standard -- even if it were at all 

supportable as a legal principle -- has 

extraordinary potential significantly to 

magnify the chaos, unfairness, and 

inefficiency that currently plague these 

cases. 

26 

   



Il. THE DECISION IN McCLESKEY V. ZANT, 
890 F.24 342 .(11TH CIR. .1939), 
UNDERMINES INCENTIVES FOR STATES TO 
COMPLY WITH CONSTITUTIONAL MANDATES 
AND ENCOURAGES STATES TO CONCEAL 
VIOLATIONS OF CAPITAL DEFENDANTS' 
CONSTITUTIONAL RIGHTS BY REWARDING 
THEM FOR DOING SO 

  

In its McCleskey opinion, the Eleventh   

Circuit Court of Appeals turned a blind eye to 

the State's misconduct in violating, and then 

concealing the violation of, Petitioner's 

Sixth Amendment rights. By imposing a strict 

liability standard for habeas counsel, the 

court placed the onus of Petitioner's failure 

to uncover the facts substantiating his 

Massiah claim wholly on Petitioner, even 

though those facts were continually concealed 

by the State for nine years. See Petition for 

Writ of Certiorari at 8-14. The inevitable 

result of the McCleskey ruling will be to 
  

undermine states' incentives voluntarily to 

comply with constitutional mandates and to 

encourage states to conceal violations of 

capital defendants' constitutional rights. 

Like all constitutional principles 

regulating the conduct of state authorities, 

27  



    

  

those established to protect the rights of 

criminal defendants depend heavily upon 

voluntary compliance by state actors. For 

example, investigating police officers are 

expected to obey the rule of Massiah; if they 

do not, state prosecutors are expected either 

not to offer the resulting confession into 

evidence, or to offer the confession with 

disclosure to defense counsel of a possible 

Sixth Amendment violation. This Court has 

long recognized the expectation that 

prosecutors will disclose evidence that is 

favorable to the defense: 

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

United States v. Bagley, 473 U.S. 667, 675 

(1985) (quoting Berger v. United States, 295 
  

U.S. 78, 88 (1935)). No one -- not criminal 

defendants, not the judicial system, not 

society as a whole -- is benefitted by 

creating disincentives, such as the one 

28 

   



created by the Eleventh Circuit Court of 

Appeals in McCleskey, for state actors to 
  

conform to the expectations imposed upon them 

by the Constitution. 

The expectation that police and 

prosecutors will voluntarily honor the 

constitutional rights of criminal defendants 

-- and thus serve the higher goal of justice 

-- will be seriously undermined if McCleskey 
  

is allowed to stand. The McCleskey rule 
  

insulates police and prosecutors from the 

adverse consequences of their misconduct in 

violating, and then hiding the violation of, a 

defendant's rights. Rather than encouraging 

voluntary compliance with the Constitution, 

McCleskey provides an incentive not to comply. 
  

Indeed, McCleskey rewards the police and 
  

prosecutors for non-compliance so long as they 

conceal the constitutional violation through 

the course of first federal habeas 

proceedings, by prohibiting the habeas 

petitioner from later obtaining relief for the 

violation when it is ultimately uncovered. An 

important sanction for non-compliance with 

29  



  
  

constitutional mandates -- federal habeas 

corpus relief -- is removed by McCleskey.13 
  

McCleskey's tolerance of, and reward for, 
  

state non-compliance with constitutional 

directives will seriously impede amici curiae 
  

Resource Centers from fulfilling. their 

ultimate purpose: to protect the 

  

13. The damage McCleskey will cause to 
the equitable balance struck by habeas corpus 
is well illustrated by the facts of McCleskey 
itself. During his first state habeas 
proceeding, in which Petitioner asserted his 
Massiah claim, Petitioner's investigative 
efforts were thwarted by the State's 
persistent concealment of the Massiah 
violation: (1) Although the State purported 
to provide Petitioner with the complete 
prosecutorial file, that file did not include 
the 21 page "transcript" of informer Offie 
Evans' conversations with Petitioner, which 
so clearly suggested a Massiah violation; (2) 
The prosecutor testified in a deposition 
that, to his knowledge, the State had no 
informant relationship with Evans at the time 
Evans allegedly obtained inculpatory 
statements from Petitioner; and (3) Evans 
himself denied such a relationship during 
testimony at the state habeas hearing. 
Moreover, when the officers involved in the 
Massiah violation were later interviewed, 
they persisted in denying any knowledge of 
the scheme. For the nine years the State 
concealed its violation of Petitioner's Sixth 
Amendment rights, the State was rewarded with 
a finding that Petitioner abused the writ by 
asserting his Massiah claim in a second 
federal habeas petition immediately after he 
ultimately discovered the State's misconduct. 

  

  

30 

   



constitutional rights of death-sentenced 

inmates. 

Indeed, this Court has recognized the 

risks of a rule such as McCleskey imposes, and   

firmly held that state misconduct can preclude 

imposition of a procedural bar to 

consideration of the merits of a 

constitutional ' claim in" the “context “of 

procedural default. In Amadeo v. Zant, 486 
  

U.S. A 108 S.Ct. 1771 (1988), the 

Petitioner was unaware of the facts supporting 

a jury composition challenge because those 

facts were in a memorandum hidden among reams 

of jury lists in the clerk's office. This 

Court held that 

FiYE the District Attorney's 
memorandum was not reasonably 
discoverable because it was 
concealed by Putnam County 
officials, and if that concealment, 
rather than tactical considerations, 
was the reason for the failure of 
petitioner's lawyers to raise the 
jury challenge in the trial court, 
then petitioner established ample 
cause to excuse his procedural 
default under this Court's 
precedents. The situation . . . 
fits squarely, indeed almost 
verbatim, within our holdings in 
[Reed v. ]J]Ross[, 468 U.S. 1 (1984)] 
  

  

31 

  

   



  
  

and [Murray Vv. iCarrier({, 477 U.S. 
478 (1986) ]. 
  

Amadeo, 108. 8.Ct...at 1777 

This Court in Amadeo recognized what the 

Eleventh Circuit Court of Appeals failed to 

acknowledge in McCleskey: that if the State 
  

plays a role in making the discovery of a 

constitutional violation "'impracticable'" 

after "'reasonabl[e]'" investigative efforts 

by defense counsel, Amadeo, 108 S.Ct. at 1776 

(quoting Murray v. Carrier, 477 U.S. 478, 488 
  

(1986) ), the State -- not the defendant -—- 
  

must bear the burden of the defendant's 

failure to raise the claim earlier; the State 

-- not the defendant -- will be penalized 
  

under the procedural rules governing when the 

merits of a claim may be considered. If the 

delicate balance of our constitutional system 

is to be maintained, the same rule applied by 

this Court in the procedural default context 

must be applied to abuse of the writ. 

32 

   



CONCLUSION 
  

For the foregoing reasons, and the 

reasons detailed in Mr. McCleskey's Brief of 

Petitioner, this Court should reverse the 

decision of the Eleventh Circuit Court of 

Appeals in McCleskey v. Zant, 890 F.2d 342 
  

{11th Cir. 1989). 

* Counsel of Record 

Respectfully submitted, 

Bryan A. Stevenson 
Alabama Capital 
Representation Resource 
Center 

114 North Hull Street 
Montgomery, Alabama 36014 
(205) 269-1803 

Steven M. Goldstein 
Volunteer Lawyers' 
Resource Center of 

Florida, Inc. 
805 North Gadsden Street 

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

Mark E. Olive 
Georgia Appellate 
Practice and Educational 
Resource Center, Inc. 

920 Ponce de Leon N.E. 
Atlanta, Georgia 30306 
(404) 898-2060 

COUNSEL FOR AMICI CURIAE 
  

33