Petition for Writ of Certiorari to the 11th Circuit (Draft)

    No. 89- 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1989 

  

WARREN McCLESKEY, 

Petitioner, 

Vv. 

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

Respondent. 

  

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

FOR THE ELEVENTH CIRCUIT 

  

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JULIUS L. CHAMBERS 

*JOHN CHARLES BOGER 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 
WARREN McCLESKEY 

* Attorney of Record 

 



  

No. 89- 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1989 

  

WARREN McCLESKEY, 

Petitioner, 

V. 

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

Respondent. 

  

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

FOR THE ELEVENTH CIRCUIT 

  

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JULIUS L. CHAMBERS 
*JOHN CHARLES BOGER 
99 Hudson Street 

New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 
WARREN McCLESKEY 

* Attorney of Record 

 



  

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. Should a Court of Appeals, in determining whether a 

State's constitutional violation was harmless error, be permitted 

under Rule 52(a) to disregard the express findings of fact, on 

the harmless error issue, that were made by the District Court 

below? 

4. Should a Court of Appeals, in determining whether a 

State's constitutional violation was harmless error, be permitted 

to disregard the District Court's ultimate conclusion on that 

mixed question of fact and law? 

5. Can the State's introduction of an unconstitutionally 

obtained confession =-- which was the only item of direct 

 



  

testimony, by an apparently impartial witness, identifying the 

defendant as the triggerperson in a homicide =-- be deemed 

harmless constitutional error, both as to guilt and as to 

penalty, in a capital case? 

ii 

 



TABLE OF CONTENTS 

STATEMENT OF THE QUESTIONS PRESENTED 

TABLE OF AUTHORITIES 

STATEMENT OF THE CASE 

I. Statement Of Facts 

A. The Police Misconduct -- A Violation Of 
Massiah 

B. 

1. The State's Failure To Produce Written 
Statements 

a. The Efforts Of Trial Counsel 

be. The Efforts Of Habeas Counsel ... 

py The Discovery Of The State's Cover-up 
3. The District Court's Findings On Abuse 

The Issue Of Harmless Error 

1. The State's Evidence At Trial 
2. The Jury's Verdict: Malice Murder 
3. The District Court's Findings On 

Harmless Error 

The Holding Of The Panel 

i. Abuse Of The Writ 

2. Harmless Error 

REASONS FOR GRANTING THE WRIT 

1. The Court Should Grant Certiorari To Consider 
Whether A State May Assert The Defense Of 
"Abuse Of The Writ," On A Second Federal Habeas 

Application, After It Has Successfully Concealed 
Its Own Constitutional Violation From The Habeas 
Applicant During The Initial Federal Application 

iii  



  

A. The State's UncClean HAanNnAS cee sessessssnsssns 23 

B. The Panel's Redefinition Of "Deliberate 
Abandonment! ccececveveenen Pe NH PPG a VEN Na 28 

II. The Court Should Grant Certiorari To Resolve 
Important Unsettled Questions Regarding The 
Applicability Of Rule 52 (a) Standards To 
HarmlesSs BIO ses esos eserosnvansssssersnseresns 31 

III. The Court Should Grant Certiorari To Consider 

Whether The Introduction Of A Tainted Confession 

  

  

  

Can Be Harmless Error ..... testes esses corse nn 36 

CONCLUSION sisson ssssnsesssssesssnsnessns REN ETE PEP TT CREE DY 38 

APPENDICES 

Appendix A Judgment and Order in McCleskey v. Kemp, No. 
1:87-cv-1517-JOF (N.D. Ga. Jan. 15, 1988) 

Appendix B Order in McCleskey v. Kemp, No. 1:87-CV-1517- 
JOF (N.D. Ga. Jan, 10, 1989) 

Appendix C McCleskey v., Zant, 890 F.24 342 (11th Cir. 
1989) 

Appendix D Order Denying Rehearing and Suggestion For 
Rehearing In Banc in McCleskey v. Zant, Nos. 
88-8085 & 89-8085 (11th Cir. Feb. 6, 1990) 

  

Appendix E Order Staying Mandate To And Including March 
23, 1990 in McCleskey v. Zant, Nos. 88-8085 
89-8085 (11th Cir. Feb. 14, 1990) 
  

iv 

 



  

TABLE OF AUTHORITIES 

Cases 

Amadeo v. Zant, U.S. , 100 L.Ed.24 249 (1988) . 25,26,30,31,33 

Anderson v. Bessemer City, 470 U.S. 564 (1985) .ccceccecses 30,34 

Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964) scevssssess 24 

Brady Vv. United States, 373 U.S. 83 (1963) ..oveessssvnecen 23,28 

Bruton Vv. United States, 391 U.S. 123 (1968) covcesrosvres 36 

Cruz v. New YOTrKk, 481 U.S. 186 (1987) seesnsvssvsssssennses 36 

Curran v. State of Delaware, 259 F.2d 707 (3d Cir. 1958) . 24 

Fay Ve Nola, 372 U.. S. 391 {1OC3) eens cieinnsns cones sino 14,27 

Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979) . 24 

Giglio v. United States, 405 U.S. 150 (1972) sceencscoes 20,28,37 

Graham v. Wilson, 828 F.2d 656 (10th Cir. 1987) cececvecsn 34 

Green v., Zant, 715 F.2d 851 (11th Cir. 1983) cevesvesenves 17 

Grizzell v. Wainwright, 692 F.2d 722 (11th Cir. 1982) .... 34 

Harris v. Oliver, 645 F.2d 327 (5th Cir. Unit B 1981) .... 17 

Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 
456 UeSs B44 (1982) wsesnssersssssssssssstssrsssssssos 34 

Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968) «ees. 24 

Johnson v. Salisbury, 448 F.2d 374 (8th Cir. 1970) ceeveee 35 

Jonnson v. 2erpst, 304 U.S. 45858 (1938) wu evsserssrvsnsnsinn 29 

Magwood Vv. Smith, 791 F.24 1438 (11th Cir. 1986) .ccevseee 17 

Massiah v. United States, 377 U.S, 201 (1964) vive vvvccs passim 

McCleskey v. Georgia, 449 U.S. 891 (1980) ceeevevvossnnnes 7 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980) ... 9 

Michigan v. Jackson, 475 U.S. 625 (1986) +eevevvsvcesnssne 23,28 

v 

 



  

Cases (cont'd) Page 

Mooney v. Holohan, 294 U.S. 103 (1935) ssseesssssersnssens 23,28 

Murray Vv. Carrier, 477 U.S. 478 (1986) sass eceessssvennvons 26 

Napper v. Georgia Television Co., 257 Ga. 156, 356 
SEe2@ B40 (1027) wosuvasvsseasoveses IL IRA 13 

Pennsylvania Casualty Co. v. McCoy, 167 F.2d 132 
(BENECIE, i TOMB) seeesenscecsossoans oie edie sh nie wetle been 35 

Penry v. Lynaugh, U.S. , 106 L.Ed.24 256 (1989) «tes eese 8 

Potts v., Zant, 638 F.2d 727 (5th Cir. 1981) ..... Rn, TR 15 

Price v.. Johnston, 334 U.S. 266 (1948) cevrvevsnnvssonsace 29 

Pullman=-Standard v. Swint, 456 U.S. 273 (1982) ceceecvesse 34 

Rogers Vv. Bates, 43) F.2d 16 (3th Cir. 1970) cevsvsssvenss 35 

Ruff v. Kincheloe, 843 F.2d 1240 1242 (9th Cir. 1988) .... 34 

Sanders Vv. United States, 373 U.8. 1'{(1963) suveerrcevecss 15,27 

Santobello v. New York, 404 U.S. 257 (1971) cusverencnnonns 23 

Satterwhite v. Texas, 486 U.S. 249 (1988) ccevesvesccvanse 38 

Stafos Vv. Jarvis, 477 PF.24 369 (10th Cir. 1973) ceevevecoe 35 

Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1971) ceveeen 24 

Strickland v. Washington, 466 U.S. 668 (1984) ceecevecvceas 35 

Teague Vv. lane, U.S. _ , 103 L. Ed.24 334 (1989) ctevsesss 7 

Townsend Vv. Sain, ‘372. U.S. 291 (1963) ‘ceeeccsvivssosessscnss 17 

United States v. Bagley, 473 U.8. 667 (1982) ceveceveceves 23 

United States v. Henry, 447 U.S. 264 (1980) ecececcssccssen 7 

United States ex rel. Johnson v. Johnson, 531 F.2d 
169 £30 CiTs 1976) eeessirnncsssessnccssnesnsonnsosess 35 

United States ex rel. Savory v. Lane, 832 F.2d 
1011 (7th Cir, 1987) cevenrvnsnns sre rest es sinners nnnis 34 

United States v. Yellow Cab. Co., 338 U.S. 338 (1949) .... 34 

vi 

 



  

  

Wainwright v., Sykes, 433 U. BS. 72 (1977) sevens ssnssesnens 26 

Statutes 

28 UdSeCol 8 125401) cea einsiesnsnnsosonioinssnnsonivensesensnees 2 

28 USCS 224A(DY oesesesnsnsesonmsnninmssesseswnionnssins 3 

Rule 52(a), P.R, CiV. P. css visssssvessnmeininssoonssvneesos 31,35 

Rule 60D), FsRs CiVe Pu svnnsrsnnresessssssnssvsssvnsesen 2 

Rule 9(b), Rules Governing Section 2254 CASS .ceceeeccess 3 

vii 

 



  

No. 89- 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1989 

  

WARREN McCLESKEY, 

Petitioner, 

yO 

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

Respondent. 

  

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

FOR THE ELEVENTH CIRCUIT 

  

Petitioner Warren McCleskey respectfully prays that a writ 

of certiorari issue to review the judgment of the United States 

Court of Appeals for the Eleventh Circuit in this case. 

CITATIONS TO OPINIONS BEIOW 
  

The District Court originally entered a judgment in 

petitioner's favor on February 1, 1984; that opinion is 

officially reported at 580 F. Supp. 338 (N.D. Ga. 1984). The 

Court of Appeals, sitting en banc, reversed the judgment of the 

District Court and denied relief on January 29, 1985; that 

opinion is officially reported at 753 F.2d 877 (11th Cir. 1987) 

(en banc). This Court entered a judgment on April 22, 1987, 

 



  

affirming the Court of Appeals; that opinion is officially 

reported at 481 U.S. 279 (1987). 

The District Court, on a second federal application, entered 

a judgment on January 15, 1988, nunc pro tunc for December 23, 

1987, granting relief to petitioner; that opinion, which is not 

officially reported, is annexed as Appendix A. On January 6, 

1989, the District Court entered an order denying respondent's 

motion under Rule 60(b); that opinion, which is not officially 

reported, is annexed as Appendix B. 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 officially 

reported at 890 F.2d 342 (11th Cir. 1989), is annexed as Appendix 

Ce. 

JURISDICTION 
  

The judgment of the Court of Appeals was entered on 

November 22, 1989, as amended on December 13, 1989. A timely 

petition for rehearing and rehearing en banc was denied on 

February 6, 1990. A copy of the order denying rehearing is 

annexed as Appendix D. The Court of Appeals stayed its mandate 

to and including March 23, 1990, pending the timely filing of a 

petition for certiorari; a copy of that order is annexed as 

Appendix E. The jurisdiction of this Court is invoked pursuant 

to 28 U.S.C. § 1254(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 
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 
  

I. Statement Of Facts 
  

A. The Police Misconduct —-- A Violation of Massiah 
  

At the heart of this appeal lies evidence of a successful 

scheme by State officials to procure an illegal "confession." 

According to the express findings of the District Court, one or 

more officers of the Atlanta, Georgia, Bureau of Police Services 

entered into a conspiracy with a known jailhouse informant, Offie 

Evans, to secure a confession from Mr. McCleskey. The purpose of 

 



  

the police conspiracy was to identify which of four robbers had 

shot a fellow police officer, Frank Schlatt, as he entered a 

furniture store during the course of a robbery. The conspiracy 

violated McCleskey's Sixth Amendment right to counsel. 

The facts substantiating this conspiracy are not seriously 

at issue on this appeal. The District Court, after three days of 

evidentiary hearings, expressly found that Captain Ulysses 

Worthy, a supervisory officer at the Fulton County Jail in 

Atlanta, Georgia, was, by chance, present during the jailhouse 

meeting between several Atlanta police detectives and a pretrial 

detainee, Offie Evans, at which the conspiracy was born. The 

detectives were investigating the death of Atlanta police officer 

Frank Schlatt. They met with inmate Evans in Captain Worthy's 

office at the Fulton County Jail to discuss the role of Warren 

McCleskey in that crime. McCleskey was also in the Fulton County 

Jail awaiting trial for Schlatt's murder. (App. A, at 15-17). 

The District Court found that, during this meeting, one of 

the detectives turned to Captain Worthy and asked him to move 

inmate Evans from another part of the jail to a cell adjacent to 

McCleskey's 

for the purpose of gathering incriminating information; 
[inmate] Evans was probably coached in how to approach 
McCleskey and given critical facts unknown to the general 
public. [Following the move,] Evans engaged McCleskey in 
conversations and eavesdropped on McCleskey's conversations 
with [co-indictee Bernard] Dupree; and Evans reported what 
he had heard . . . to Assistant District Attorney Parker on 
July 12 [1978]. 

(App. A. at 23). 

 



  

These findings are strongly supported by the record 

evidence from the federal habeas corpus proceeding. Captain 

Worthy twice testified about his presence at the meeting between 

Atlanta police detectives and inmate Evans. (R5-148). Worthy 

recalled that, during the meeting, Detective Sidney Dorsey (or 

perhaps some other "officer on the case") "asked Mr. Evans to 

engage in conversations with McCleskey who was being held in the 

jail." (R5-150). During the federal hearing, the District Court 

directly questioned Captain Worthy on the essential points: 

THE COURT: But you're satisfied that those three 
things happened, that they asked to 
have him put 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, R6- 26-28). 

Captain Worthy's testimony was independently confirmed and 

buttressed by a remarkable 2l-page written statement which had 

been given by inmate Evans to Atlanta police officials in July of 

1978, shortly after the initial meeting between Evans and the 

detectives. In the typewritten statement, Evans described in 

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 close 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.l 

This evidence obtained by inmate Evans from McCleskey later 

became a centerpiece of the State's case during McCleskey's 

  

trial. Indeed, the State used Evans' testimony to establish 

three important points: (i) that Evans heard McCleskey confess 

1 In his statement, inmate Evans bragged about his 
duplicity in dealing with Mr. McCleskey: 

"T 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 "used to stick up with Ben," and that "Ben told 
me that you shot the man yourself," (id. at 4), Evans began to 
pry open the story of the crime. "I said man 'just what's 

happened over there?'" (Id.) 

Even 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 
got 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 
me himself." (Id. at 9). 

 



  

to shooting police officer Schlatt (Tr. T. 870-871; Fed. Exh. 4, 

870-871); (ii) that McCleskey told Evans ". . . he would have 

tried to shoot his way out . . . if it had been a dozen" police 

officers (Tr. T. 871; Fed. Exh. 4, 871);2 and (iii) that 

McCleskey had explained to Evans what later became a glaring 

inconsistency in the identification testimony of another 

principal State's witness.3 

Based on the testimony of Captain Worthy and on the 21-page 

statement of Offie Evans, the District Court concluded that 

petitioner's sixth amendment rights, as interpreted in 
Massiah, were violated by the use at trial of Evans' 
testimony about the petitioner's incriminating statements 
because those statements were deliberately elicited by an 
agent of the state after petitioner's indictment and in the 
absence of petitioner's attorney. 

(App. A, at 30).4 
  

2 This ostensible statement subsequently became a basis for 
the prosecutor's argument to the jury that Mr. McCleskey had 
acted with "malice." (See Tr. T. 974). 

3 According to inmate Evans, McCleskey had confessed during 
their jailhouse conversations that he had been wearing makeup and 
a disguise on the day of the crime (Tr. T. 301-303; 870-871; 876- 
879). This fact, if true, explained serious discrepancies in 
the eyewitness account of the robbers given by one witness. 

4 Although the specific misconduct of which the State was 
found liable here =-- placing an informant in a cell and 
instructing him to interrogate a defendant surreptitiously -- may 
be argued to be an extension of the basic principle announced of 
Massiah v. United States, 377 U.S. 201 (1964), this Court clearly 
applied Massiah to forbid such jailhouse interrogations in United 
States v. Henry, 447 U. S. 264 (1980). At the time Henry was 
decided, on June 16, 1980, petitioner McCleskey was still 
pursuing his direct appeal, which did not become final until his 
petition for certiorari was denied by this Court on October 6, 
1980. See McCleskey Vv. Georgia, 449 U.S. 891 (1980) (denying 
certiorari). Petitioner's subsequent assertion of this claim in 
collateral proceedings thus presents no "new law" problem under 
Teague v. lane, U.S. , 103 L. Ed.2d 334 (1989) or its progeny. 

  

  

  

  

7 

 



  

B. The Issue Of Abuse Of The Writ 
  

The Court of Appeals never reached the merits of 

petitioner's claim under Massiah v. United States, 377 U.S. 201 
  

(1964). Instead, it held that petitioner had abused the writ of 

habeas corpus by failing to include a Massiah claim in his 

initial federal habeas petition. (App. C, 890 F.2d at 344).° 

Consequently, it is necessary to set forth the circumstances 

under which the Massiah violation first came to light. 

1. The State's Failure To Produce Written Statements 
  

a. The Efforts of Trial Counsel 
  

Despite repeated efforts by Warren McCleskey's trial 

counsel to obtain any evidence that might reflect illegal State 

contact, the State failed to turn over Offie Evans' 21l-page 

statement, or even to acknowledge that it existed. Prior to 

trial, McCleskey's defense attorney filed a written motion 

seeking all written or oral statements made by McCleskey to 

anyone, and all exculpatory evidence. After an in camera 
  

inspection, the trial court allowed the State to withhold both 

(i) the 21-page statement made by informant Evans and (ii) even 

the fact that the State possessed such a statement. (R1-1, Exh. 
  

M; R4-73-81; R6-118). 

  

  

See, Penry v. Lynaugh, U.S. , 106 L.Ed.2d 256, 267-268 (1989) 

(habeas applicant is entitled to the benefit of changes in law 
that occur prior to denial of certiorari from direct appeal of 
conviction) 

5 The Court of Appeals also held that the State's Massiah 
violation was harmless beyond a reasonable doubt. The facts 
relevant to that claim will be set forth in § C infra. 

8 

 



  

During mid-trial, defense counsel orally moved for the right 

to examine all documents in the State's possession that reflected 

any statements made by McCleskey. (R1-1, Exh. O, 830-832; see 

Fed. Exh. 6). The motion was denied; in so doing, the trial 

court inexplicably furthered the suggestion 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). 

Defense counsel nonetheless decided to preserve this issue 

on appeal. The Georgia Supreme Court, however, apparently 

unwittingly, contributed to these developments by denying all 

relief, remarking that "[t]he evidence [that the defense 

counsel] sought to inspect was introduced to the jury in its 
  

entirety." McCleskey 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 left the unmistakable impression that the 

State had no written statements that had not been turned over to 

the defense. Defense counsel subsequently testified that he 

"was never given any indication that [any undisclosed] statement 

existed.” (St Hab. Tr. 77). 

b. The Efforts of Habeas Counsel 
  

The State continued to stonewall Warren McCleskey's counsel 

about the existence of the 2l1l-page statement throughout state 

habeas proceedings. At the outset of those proceedings in 1981, 

present counsel entered the case as volunteers on McCleskey's 

behalf. Although they gleaned from the trial record that the 

9 

 



  

State apparently possessed no written statements from McCleskey, 

and although they lacked anything more than an unsubstantiated 

suspicion of a Massiah violation, they nonetheless decided, as a 

precaution, to include a Massiah claim along with twenty-two 

other constitutional challenges asserted in McCleskey's state 

petition. 

Attorney Robert Stroup followed up the Massiah claim with an 

extensive investigation designed to uncover any facts that might 

support it. He first met with members of the Atlanta police 

force (whom he had represented in unrelated Title VII cases) for 

advice on the best way to uncover any available evidence of an 

illegal, jailhouse informant relationship. (R4 31-32). Armed 

with their advice, he then interviewed a number of key jailors at 

the Fulton County Jail. (R4 33). None of these jail officials 

knew anything about a surreptitious police informant in 

McCleskey's case. 

Attorney Stroup nonetheless persevered, tracking down a 

former jail official, Bobby Edwards, who had been in charge of 

all inmate cell placements at the time McCleskey had been 

incarcerated. By 1981, Mr. Edwards had retired and was living 

over 60 miles from Atlanta; Stroup managed to find and interview 

him. Edwards had no knowledge suggesting evidence to support 

the claim of illegal misconduct. © 

  

© At the time, the Fulton County Jail was staffed by 
several shifts of jailors (R6 76); the total cell population was 
between 900-1700; each shift was staffed by literally scores of 
officers. (R6 73). Mr. Stroup admittedly did not personally 
interview each of the several hundred jailors, some of them 

10 

 



  

Stroup then directly sought, during discovery in the state 

habeas action, the prosecutor's file in the case. He was sent a 

mass of documents from a Georgia Assistant Attorney General, 

accompanied by a letter assuring Stroup that he was receiving "a 

complete copy of the prosecutor's file resulting from the 
  

criminal prosecution of Warren McCleskey." (Fed. Exh. 7) 

(emphasis added). Informant Evans' crucial 2l1-page statement was 

not included among the documents transmitted.’ At no time, 

either at that point or later, did lawyers for the District 

Attorney or for the Georgia Attorney General's office ever turn 

over Evans' 21-page account of his undercover interrogation of 

Warren McCleskey. 

To complete his investigation, Mr. Stroup questioned inmate 

Offie Evans under oath during state habeas proceedings and 

deposed the Assistant District Attorney who had prosecuted 

McCleskey. The prosecutor gave no hint that the State's 

relationship with its key witness, Offie Evans, might have been 

improper: 

  

retired by 1981, who had been employed by the Fulton County Jail 
in 1978. He confined his investigations on this claim -- one of 
22 separate constitutional issues which he, a pro bono volunteer 
attorney was then pursuing -- to interviews with the employees 
identified as most likely to have relevant information. None of 
those officers knew of any evidence suggesting that a Massiah 
violation might have occurred. 

  

7 Mr. Stroup has subsequently testified that, in reliance 
on these written representations of the State of Georgia, it 
simply did not occur to him that this representation was false, 
that a written statement existed, and that he was being misled. 
(R1- 7-10). The District Court credited Mr. Stroup's testimony 
on this point. (R1l- 118-119; R3-- 22-25). 

11 

 



  

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. 

(Fed. 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. 

(Fed. Exh. 3, 14-15). 

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. 

(R4- 44). 

12 

 



  

2. The Discovery Of The State's Cover-up 
  

Offie Evans's 2l1-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 petitioner McCleskey's possession, 

however, he acted immediately to make it the centerpiece of a 

Massiah claim which he included in his second federal petition 

filed in July of 1987. (See R1-9 & Exh. E). 

Even in the face of the written statement, State officials 

continued to deny any illegal activity. During federal hearing 

on his second petition, McCleskey's attorneys sought to develop 

all the circumstances under which the statement had initially 

been taken. In response to an inquiry about 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). 

8 In that case, Napper v. Georgia Television Co., 257 Ga. 
156, 356 S.E.2d 640 (1987), the Supreme Court of Georgia appeared 
to hold, for the first time, that police investigative files 
would be deemed within the compass of the Georgia Open Records 
Act, O0.C.G.A. § 50-18-72(a) for purposes of disclosure during 
habeas corpus proceedings in that case. Mr. Stroup immediately 
cited that then-recent decision, still pending before the Georgia 
Supreme Court on rehearing, in support of a request directly to 
the Atlanta Bureau of Police Services, seeking the original 
police files in McCleskey's case. (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. 
(R1-7-7). 

  

13 

 



  

Asked whether Captain Worthy had been present during the 

interview, Detective Harris replied, "No, sir. I'm sure he 

wasn't, you know." (R4 196). 

Although the police suggested that Captain Worthy had not 

been present for the interview, and although he had long been 

retired from service at the jail, McCleskey's attorneys 

nonetheless sought to locate and subpoena him to appear during 

the waning hours of McCleskey's 1987 federal hearing -- one of 

many subpoenas issued to those whose names were first mentioned 

during the course of the two-day federal hearings. (R4-21). 

Mr. Worthy's appearance and his testimony, outlined above, 

came as a complete surprise to McCleskey's attorneys, to the 

Attorney General, and to everyone else present at the hearing 

(see R5 166) -- except, no doubt, those who were active parties 

in the Massiah violation and in the State's subsequent ten-year 

cover-up. 

3. The District Court's Findings On Abuse 
  

After receiving documentary evidence and hearing live 

testimony, the District Court made comprehensive findings on the 

issue of abuse of the writ. The Court first considered the 

State's defense of deliberate abandonment: 

[P]letitioner 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. 

14 

 



  

Noia, 372 U. S. 391, 439 (1963), quoted in Potts v. 
Zant, 638 F.24 727,743 (5th Cir. 1981). . . This is 

not a case where petitioner has reserved his proof or 
deliberately withheld his claim for a second petition. 
Sanders v. United States, 373 U.S. 1, 18 (1963). 

  

  

(R4 118-119). Turning to the issue of "inexcusable neglect," the 

Court observed that 

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 is true of counsel's failure to discover Worthy's 
testimony. . . [C]ounsel 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. 

(R3-22- 24-25). 

C. The Issue Of Harmless Error 
  

i. The State's Evidence At Trial 
  

Officer Frank Schlatt was shot as he entered the Dixie 

Furniture Company on May 13, 1978 in response to a silent alarm 

indicating that a robbery was in progress. There were no 

eyewitnesses to the shooting of Officer Schlatt, although a 

number of witnesses identified four robbers, including Warren 

McCleskey, as those present in the store. 

Petitioner McCleskey initially entered the furniture store 

from the front while his three co-defendants entered from the 

rear. The four robbers, however, herded all 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. 

15 

 



  

These plans were well underway when Officer Frank Schlatt entered 

the furniture store by the front door. 

No employee was able to testify which of the four co- 

defendants fired the shots that killed Officer Schlatt. The 

State offered two other witnesses, however, who told the jury 

that Warren McCleskey had confessed to the shooting. One was Ben 

Wright, McCleskey's co-defendant. Wright had been a leader in 

planning and carrying out the robbery; he had directed the other 

participants (e.g., Tr. T. 651, 657); and he was a highly likely 

suspect in the shooting. Wright acknowledged during his trial 

testimony that the State intended to recommend 20-year concurrent 

sentences for his part in the murder and armed robbery in 

exchange for his testimony against Warren McCleskey. (Tr. T. 646- 

647; 682-683.). The District Court found that his testimony "was 

obviously impeachable." (App. A, at 30.) 

Just before it retired to deliberate on guilt or innocence, 

however, the jury heard another witness, an apparently neutral 

third party who told the jury of McCleskey's ostensible 

jailhouse confession: that witness was Offie Evans. 

Apart from Wright and Evans, the State's case rested largely 

upon circumstantial evidence in an effort to place the murder 

weapon in McCleskey's hand. Both co-defendant Ben Wright and 

Wright's girlfriend testified that, on the day of the crime, 

McCleskey had been carrying a pearl-handled, silver .38 pistol 

linked to the homicide. (Tr. 7T. 649; 727). Yet on cross- 

examination, Wright admitted that he, not McCleskey, had 

16 

 



  

personally carried the .38 pistol for weeks at a time prior to 

the crime. (Tr. T. 682). Moreover, Wright's girlfriend admitted 

under cross-examination that she had informed police, on the day 
  

Wright was arrested, that it was Wright, not McCleskey, who had 
  

been carrving the .38 pistol on the day of the furniture store 
  

robbery. (Tr. T. 607; 631-634).° 

2. The Jury's Verdict: Malice Murder 
  

At the close of the guilt phase, the Superior Court 

instructed the jury on theories of malice murder (Tr. T. 998-999) 

and of felony murder. (Tr. T. 999-1000). In its charge on malice 

murder, the trial court 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." (Tr. T. 1000). In its charge on felony murder, the trial 

court informed the jury that "[t]he homicide is committed in the 

  

9 The panel, both in its initial description of the crime 
(App. C, 890 F.2d at 344) and its analysis of the harmless error 
issue (id. at 352), overlooked or disregarded these record 
facts, drawn directly from the trial transcript. It drew its 
view of the facts, instead, from a summary of the crime contained 
in the 1980 opinion of the Supreme Court of Georgia on Mr. 
McCleskey's direct appeal. That opinion had been written seven 
years prior to the District Court's factfindings, at a time when 
no Massiah challenge was before that or any court. Its summary 
statement of facts did not, of course, preclude the more careful 
findings made years later by the District Court on McCleskey's 
Massiah claim, after a full federal hearing, at a time when the 
significance of the State's circumstantial case, weighed against 
its other evidence, had come plainly into view. See, e.q., 
Townsend v. Sain, 372 U.S. 291, 316 (1963); Magwood v. Smith, 791 
F.2d 1438, 1448-1450 (11th Cir. 1986); Green v. Zant, 715 F.2d 

551,557-558 (11th Cir. 1983); cf. Harris v. Oliver, 645 F.24 327 

(5th Cir. Unit B 1981) (state findings need not be accepted when 
not anchored in proper legal standard). 

  

    

  

  

17 

 



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." (Tr. T. 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.) .10 

During its deliberations, the jury sought further 

instructions on the issue of malice murder. The Superior Court 

repeated its instructions. (Tr. T. 1007-1009). Ten minutes 

later, the jury returned, finding Mr. McCleskey guilty of malice 

murder and two counts of armed robbery. (Tr. T. 1010). 

3. The District Court's Finding On Harmless Error 
  

The District Court, after reviewing the trial record, 

concluded 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: 

  

10 The court had earlier charged the jury, in a general 
section, on 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 aides 
or abets in the commission of the «crime, or 
intentionally advises, encourages, hires, counsels or 
procures another to commit the crime. 

(Tr. T. 994).  



  

There were no witnesses to the shooting and the murder 
weapon was never found. The bulk of the state's case 
against the petitioner was three pronged: (1) evidence 
that petitioner carried a particular gun on the day of 
the robbery that most likely fired the fatal bullets; 
(2) testimony by co-defendant Ben Wright that 
petitioner pulled the trigger; and (3) Evans' testimony 
about 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. 

(App. A, at 29-31). 

D. The Holding of the Panel 
  

1. Abuse Of The Writ 
  

The panel decided this appeal on the express assumption 

"that McCleskey was unaware of both [the 21-page statement and 

Captain Worthy]" when he filed his initial petition. The 

critical legal question, from the panel's perspective, 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." (App. C, 

890 F.2d at 348). 

In answering that question, the panel faulted the District 

Court for "misconstru[ing] the meaning of deliberate 

abandonment." (Id. at 349). Since Mr. McCleskey's attorneys had 

been aware of the legal issue, (id.), the panel reasoned, it was 

appropriate to impute to them some unspecified knowledge of the 

facts as well. The panel concluded that counsels' decision not 

9 

 



  

to go forward with the Massiah claim into 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.ll The petitioner and his counsel 
did not accidentally fail to include the Massiah claim in 
the federal petition, but made a knowing choice not to 
pursue the claim after having raised it previously. This 
constitutes prima facie evidence of deliberate abandonment. 

(App. C, 890 F.2d at 349). 

The panel acknowledged that petitioner's attorneys had made 

unsuccessful efforts to locate concrete evidence of a Massiah 

violation. The panel faulted those efforts as "somewhat 

lacking." 

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. 

  

11 petitioner alleged during his initial state and federal 
habeas proceedings that Offie Evans had testified in exchange for 
promises of favorable State treatment. Evans had disavowed 
receiving such promises during his cross-examination at 
McCleskey's trial. The Court's opinion in Giglio wv. United 

  

States, 405 U.S. 150 (1972) held that a witness's failure to 
reveal any such promise would violate the Due Process Clause of 
the Fourteenth Amendment. 

20 

 



  

(App. C, 890 F.2d at 350).12 

In effect, the panel held that facts admittedly unknown to a 

petitioner would be attributed to him in assessing whether he had 

"deliberately abandoned" a claim, unless petitioner's counsel had 

conducted a "thorough investigation." The panel made no effort 

to reconcile this new standard with the District Court's express 

finding that counsel's investigation had been "reasonably 

  

12 The panel mentioned that McCleskey's counsel had never 
interviewed the detectives ultimately implicated in the coverup 
or another jail official who testified during McCleskey's trial. 
(App. C, 890 F.24 at 349-350 n. 12). Yet the panel ignored 
both (I) the District Court's express finding that counsel's 
actions on this point were not inexcusable under all the 
circumstances, and (ii) its observation that the detectives’ 
denial of all misconduct, under oath, during federal habeas 
proceedings, made it plain that "conducting such interviews would 
[not] have allowed petitioner to assert this claim any earlier." 
(App. A, at 22-25). 

  

  

  

The panel likewise faulted petitioner for failing to 
"present[] any reason why counsel would have been unable to 
contact Ulysses Worthy back in 1981 when the first federal habeas 
petition was filed." (App. C, 890 F.2d at 350). Two reasons, 
however, were evident from the record. First, Worthy's name did 
not even surface until midway during the federal habeas hearing; 
even then, the police mentioned him only as a retired jail 
officer in whose office the 2l1l-page statement had been taken-- 
according to the police, in Worthy's absence. Second, the Fulton 
County Jail had been staffed by hundreds of jail employees in 
July of 1978; nothing linked Captain Worthy to the McCleskey case 
until testimony emerged that his office had been used to obtain 
the 21-page statement whose very existence had been hidden from 
petitioner's attorneys for 10 years. 

Finally, the panel noted that petitioner had "not shown that 
a more extensive effort at that time to track down persons with 
information as to what transpired in the county jail during the 
summer of 1978 would not have turned up Worthy." (App. C, 890 
F.2d at 350). The District Court, however, expressly found that 
reasonably competent counsel could not have been expected to 
uncover these other witnesses. (App. A, at 24-25). 

21 

 



  

competent," and that petitioner had not been guilty of 

inexcusable neglect under all the circumstances. 

2. Harmless Error   

The panel drew its view of the State's case neither from the 

trial transcript nor from the District Court's factfindings, but 

instead from a brief and inaccurate summary of the crime 

contained in a 1980 opinion by the Supreme Court of Georgia on 

McCleskey's direct appeal. In consequence, the panel fully 

credited a view (i) that McCleskey had entered the furniture 

store from the front, (App. C, 890 F.2d at 344); (ii) 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," (App. 

C, 890 F.2d at 352); (iii) that "McCleskey had a .38 caliber 

Rossi" pistol, (App. C, at 344), and (iv) that "the officer was 

killed by a bullet from a .38 caliber Rossi handgun." (App. C, at 

352). 

Relying on this "substantial amount of circumstantial 

evidence" (id.), 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. 

(id. at 353). 

22 

 



  

REASONS FOR GRANTING THE WRIT 

I. 

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER A 
STATE MAY ASSERT THE DEFENSE OF "ABUSE OF THE WRIT," 
ON A SECOND FEDERAL HABEAS APPLICATION, AFTER IT HAS 
SUCCESSFULLY CONCEALED ITS OWN CONSTITUTIONAL 
VIOLATION FROM THE HABEAS APPLICANT DURING THE INITIAL 
FEDERAL APPLICATION 

A. The State's Unclean Hands 
  

This Court has traditionally insisted that, in criminal 

cases, the misconduct of any member of the prosecution team must 

be deemed state action and imputed to the State itself. See, 

e.d., Mooney Vv. Holohan, 294 U. S. 103 (1935); Brady v. United 
    

States, 373 U.S. 83 (1963). The good faith of some members of 

the State's team cannot excuse the bad faith of others, since, as 

Chief Justice Burger reasoned in Giglio v. United States, 
  

[t]he prosecutor's office is an entity and as such it is the 
spokesman for the Government. A promise made by one 
attorney must be attributed, for these purposes, to the 
Government. See Restatement (Second) of Agency § 272. See 
also American Bar Association Project on Standards for 
Criminal Justice, Discovery and Procedure Before Trial § 
2.1{(4). To the extent this places a burden on the large 
prosecution offices, procedures and regulations can be 
established to carry that burden and to ensure communication 
of all relevant information on each case to every lawyer who 
deals with it. 

405 U. S. 150, 154 (1972). Accord: 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 

Sate and the individual"); Santobello v. New York, 404 U.S. 257, 
  

(1971) (initial prosecutor's plea offer held binding on subsequent 

prosecutor); Cf. United States wv. Bagley, 473 U. S. 667, 671 & 
  

23 

 



n.4 (1986) (conduct by state law enforcement agents working with 

federal investigators imputed to federal prosecutor's office) 13 

In this case, the District Court found as fact that Atlanta 

police detectives entered into a secret -- and flagrantly 

unconstitutional -- relationship with a jailhouse informant, 

Offie Evans, to secure damning evidence against petitioner Warren 

McCleskey. The conspiracy, known only to the police detectives, 

to the informant, and to one jailor, Captain Ulysses Worthy, was 

successfully hidden for more than a decade. Their misdeeds came 

to light only in July of 1987, a few days before Warren 

McCleskey's scheduled execution. 

Ever since that time, the State -- now represented by the 

Attorney General -- has sought to distract attention from the 

merits of McCleskey's constitutional claim under Massiah, and to 

redirect the spotlight away from its own misconduct and toward 
  

the ostensible errors of petitioner's habeas counsel. The 

State's remarkable proposition is that they should receive a 

double reward for their agents' conspiracy: first, the initial 

  

13 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. Estelle, 552 F.2d 593 (5th Cir. 1971); Jackson Vv. 
Wainwright, 390 F.2d 288, 296 (5th Cir. 1968); Curran v. State of 
Delaware, 259 F.2d 707, 713 (3d Cir. 1958). 

  

  

  

    

    

  

24  



  

death sentence, won in significant measure through inmate Evans’ 

testimony; and now, a successful "abuse of the writ" defense, won 

by charging McCleskey's attorneys with the failure to have 

uncovered the State's own misconduct earlier -- misconduct which 

was vigorously and deliberately suppressed, by State actors, 

through a decade of perjury and deceit. 14 

The Court recently confronted similar State misconduct, and 

faced a strikingly similar attempt by the State to avoid 

responsibility for its actions, in Amadeo v. Zant, U.S. , 100 
  

L.Ed.2d 249 (1988). There, as here, a State actor had secretly 

violated the federal constitution -- a prosecutor had 

surreptitiously instructed jury commissioners on a scheme to 

evade federal jury composition standards. 100 L.Ed. 2d at 257. 

There, as here, incriminating evidence was theoretically 

available -- in Amadeo, a cryptic memo wedged in the jury 

commissioners! files, in McCleskey, a retired jailor, one of 
  

hundreds who had worked in the Fulton County Jail at the time. 

There, as here, the District Court found that the evidence had 

not been reasonably available to defense counsel. There, as 

here, once evidence of the misconduct came to light, the State 

insisted that the merits of the jury claim should not be heard, 

  

14 No doubt, had petitioner McCleskey decided to carry his 
Massiah claim into federal court on his initial federal 
application, having failed to uncover any evidence to support the 
claim during his initial state habeas proceedings, respondent 
would have launched a vigorous professional attack against 
petitioner's counsel for making frivolous charges against the 
State despite a lack of factual support. 

  

25 

 



  

since the habeas applicant had not discovered the misconduct in 

time. 100 L.Ed.2d at 258. 

There, as here, a District Court, after an evidentiary 

hearing, granted relief on the merits, finding as fact that the 

applicant's defense attorneys had not engaged in "'sandbagging' 

or 'deliberate bypass,'" 100 L.Ed.2d at 258 and that their 

conduct had been "reasonable . . . in light of all the 

circumstances." Id. at 259. There, as here, a panel of the 

Court of Appeals overturned the District Court's Jjudgment-- 

disregarding the District Court's findings of fact and 

concluding that the evidence of State misconduct had been 

"readily discoverable." 100 L.Ed.2d at 259. 

The only difference between Amadeo and this case is their 

procedural posture. The issue in Amadeo was whether the State's 

misconduct constituted sufficient "cause" under Wainwright v. 
  

Sykes, 433 U. S. 72 (1977) to excuse the applicant's procedural 

default -- his failure to have asserted the claim at trial. 100 

L.Ed.2d at 259-260. Responsive to this Court's teachings in 

Murray Vv. Carrier, 477 U. S. 478, 488 (1986), the District Court 
  

concluded that the clear evidence of "'some interference by 

[state] officials,'" constituted sufficient "cause" to excuse 

Amadeo's procedural default. 

There is no defensible reason, however, why State 

misconduct uncovered after direct appeal but in time for 

presentation on an initial federal application, should be 

treated differently, under a "cause" and "prejudice" analysis, 

26 

 



  

from misconduct that the State has somehow managed to hide until 

after initial habeas proceedings are completed. If the State has 

deliberately withheld evidence of its own unconstitutional 

behavior, federal courts simply should not entertain a defense 

of laches or of abuse under Rule 9 (b). The very equitable 
  

foundations of the writ forbid any party from seeking relief if 

it comes to the federal courts with unclean hands. 

Indeed, in Sanders v. United States, 373 U.S. 1 (1963), the 
  

Court began its analysis of successive petition jurisprudence 

with the proposition 

that 'habeas corpus has traditionally been regarded as 
governed by equitable principles. . . Among them is the 
principle that a suitor's conduct in relation to the 
matter at hand may disentitle him to the relief he 
seeks. 

373 U.S. at 17-18. Pointing to inequitable conduct that would 

preclude a habeas applicant from obtaining relief, the Court 

mentioned cases in which "a prisoner deliberately withholds one 

of two grounds for federal collateral relief," or engages in 

"needless piecemeal litigation . . whose only purpose is to vex, 

harass, or delay." 373 U. S. at 18. 

Here, the District Court carefully reviewed the behavior of 

petitioner and his counsel and found, as fact, that they had not 

engaged in such misconduct: 

[PlJetitioner cannot be said to have intentionally abandoned 
this claim. . . Abandoning a claim whose supporting facts 
only later became 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, Noja, 372 U. S. 391, 439 (1963). . . 
This is not a case where petitioner has reserved his proof 
or deliberately withheld his claim for a second petition. 

  

27 

 



  

. Second, petitioner's failure to raise this claim in his 
first federal habeas petition was not due to his inexcusable 
neglect. . . 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. . . The state has made no showing of any reason 
that petitioner or his counsel should have known to 
interview [Captain] Worthy specifically with regard to the 
Massiah claim. . . Petitioner's failure to discover this 
evidence earlier was not due to inexcusable neglect. 

(App. A, 24-26). 

Yet the panel's opinion on appeal reads as if the State's 

underlying misconduct was utterly irrelevant, and the State's 

ensuing perjury and deceit, only some hide-and-seek game which 

the State won -- and Warren McCleskey lost. Blind both to the 

State's initial wrongdoing and to its ten-year cover-up, the 

panel embraced the State's "abuse of the writ" defense and 

focused solely on the ostensible deficiencies of McCleskey's 

counsel. By so doing, the panel ignored this Court's consistent 

teaching that states must be held accountable for their own 

deliberate misconduct in criminal cases. 

Only by setting Mooney, Brady, Giglio, Michigan v. Jackson, 
  

Santobello, Bagley, and Amadeo Vv. Zant to one side could the 
    

panel's opinion be affirmed. 

B. The Panel's Redefinition Of "Deliberate Abandonment" 
  

Yet the panel's opinion did more than overlook the State's 

equitable disentitlement to assert an "abuse of the writ" 

defense. On the merits, the panel (i) redefined the basic 

meaning of the "deliberate abandonment" standard under Rule 9 (b), 

and (ii) ignored the command of Rule 52. 

28 

 



To assess whether a habeas applicant has "deliberately 

abandoned" a claim, federal courts normally determine whether a 

petitioner made "an intentional relinquishment or abandonment of 

a known right or privilege," adhering to the classic terms of 
  

Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (emphasis added).l1® 
  

The panel held, however, that even an applicant, like petitioner 

McCleskey, who admittedly had been denied access to the critical 

fact by the State, should be deemed to have "deliberately 

abandoned" a claim unless he has engaged in a "thorough 

investigation" of the facts.l1© 

  

15 perhaps the most definitive case applying Zerbst to 
successive petitions is Price v. Johnston, 334 U.S. 266 (1948). 
There, the Court limited federal courts' power to dismiss a 
second petition to instances in which a petitioner had full 
access to "proof [of the claim] which was accessible at all 
times." 334 U.S. at 289, The court refused to "assume that 
petitioner [Price] has acquired no new or additional information 
since the time of the trial or the first habeas corpus proceeding 
that might indicate fraudulent conduct on the part of the 
prosecuting attorneys." 334 U.S. at 290. 

  

16 we note that the following steps, all of them 
indisputably taken by petitioner's attorneys, were deemed 
insufficient to constitute a "thorough investigation" : 

0 trial counsel formally moved to obtain all written 
statements from the State; 

0 trial counsel renewed his request for such statements; 
o habeas counsel, despite the lack of prior success by 

trial counsel, nonetheless asserted a Massiah claim; 
habeas counsel, during their investigation, 
talked with the Fulton County jailors identified as 
those most likely to know about any Massiah violation; 
habeas counsel, having learned about a retired jail 
official who had been responsible for cell placement in 
1978, tracked that jailor down, to no avail; 
habeas counsel sought from the State, and were given, 
what the State represented to be "a complete copy of 
the prosecutor's file," but which was missing the 21- 
page statement; 

29  



The panel's application of this new, "thorough 

investigation" standard in McCleskey's case reveals it for what 

it is: a rule holding habeas applicants strictly liable for any 

failure to uncover evidence on their initial federal 

application. The only other reasonable reading of the panel's 

"thorough investigation" standard would simultaneously underscore 

yet a second transgression of Amadeo v. Zant, for the opinion 
  

brushes aside the District Court's express finding that 

"!reasonably competent counsel! could [hot] have discovered the 
  

evidence prior to the first federal petition," (App. A, at 25), 
  

and that therefore, McCleskey's counsel were not guilty of 

"inexcusable neglect." (Id.) Either the panel's opinion creates 

a new, stricter standard of attorney performance than the 

traditional "inexcusable neglect" branch of abuse law, or the 

panel's opinion violated Amadeo and Anderson Vv. Bessemer City,   

470 U.S. 564 (1985) sub rosa by reweighing the factual evidence   

on counsel's performance and disregarding the District Court's 

clear findings that the investigation undertaken by petitioner's 

habeas attorneys was reasonable. Under either reading, the 

opinion is certworthy. 

  

habeas counsel asked the prosecutor and the informant, 
under oath, whether there had been an improper 
relationship; 
when the informant's 2l1-page statement was uncovered, 
habeas counsel immediately filed a second petition; 
habeas counsel questioned police officers to learn 
where the statement had been taken from Evans; 
having learned that it had been taken in a Captain 
Worthy's office, they found and subpoenaed Worthy on 
the off chance that he might have relevant knowledge. 

30  



  

* * * * * * * * * * * * 

The panel's acceptance of the State's "abuse of the writ" 

defense, despite the State's unclean hands; its disregard of 

this Court's earlier teachings on State misconduct; its refusal 

to apply the rationale of Amadeo v. Zant to a closely analogous 
  

habeas; and its creation of a new standard for assessing 

"deliberate abandonment," all present substantial questions of 

law meriting full review on certiorari by the Court. 

II 

THE COURT SHOULD GRANT CERTIORARI TO RESOLVE 

IMPORTANT UNSETTLED QUESTIONS REGARDING THE 

APPLICABILITY OF RULE 52 (A) STANDARDS TO HARMLESS 

ERROR 

This case also presents important questions regarding the 

standard to be applied when a federal appellate court reviews a 

district court's factfindings on the issue of harmless error. 

The question arises here because the panel substituted its 

own findings -- not only on the ultimate issue, but on subsidiary 

questions of fact -- for those made by the District Court, and it 

did so without any mention of the clearly erroneous standard of 

Rule 52(a). Plainly, the panel did not view itself as bound by 

the clearly erroneous rule in the harmless error context, 

apparently either in reviewing the underlying historical facts or 

in making its ultimate determination. 

The District Court, however, did make a number of important 

factfindings that were subsidiary to its conclusion that the 

State's Massiah violation was not harmless. The District Court 

began its analysis by correctly noting that there had been no 

31 

 



  

witnesses to the shooting (App. A, at 30) and that the murder 

weapon had never been found. (Id.). The Court then found that 

the bulk of the State's case against petitioner had been three- 

pronged: (i) evidence that petitioner 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 

petitioner told Wright he had pulled the trigger; and (iii) 

informant Offie Evans' unconstitutionally-tainted testimony about 

petitioner's "jailhouse confession." (Id.). 

In assessing the quality of this evidence, the District 

Court found that the weight of the first two prongs was not 

substantial. Addressing the first prong -- who was carrying the 

murder weapon on the day of the crime -- the District Court found 

that the State had presented conflicting evidence to the jury on 

this issue. (App. A., at 30). Indeed, one of the State's 

witnesses on this point, the girlfriend of the co-defendant Ben 

Wright, acknowledged on cross-examination that she had told 

police that her boyfriend, Ben Wright, and not McCleskey, had 

carried the .38 Rossi on the day of the crime. (Tr. T. 682). 

As to Ben Wright's damaging testimony about McCleskey's 

ostensible "confession" to him, the District Court found that it 

was "obviously impeachable," (App. A, at 30), since Wright was 

himself a prime suspect in the shooting who had a clear motive to 

shift responsibility for the murder to someone else. 

On the basis of these facts, the District Court concluded 

that the tainted informant's testimony regarding McCleskey's 

32 

 



  

jailhouse confession "was critical to the state's case," (App. 

A, at 30) and, therefore, not harmless. 

The panel opinion disregarded these findings of fact, 

substituting its own instead. As to the identity of the robber 

who carried the .38 Rossi, for example, the panel cited only the 

testimony that pointed toward McCleskey (App. C, 890 F.2d at 

352); it ignored the strong conflicting testimony identified by 

the District Court. Similarly, the panel emphasized that co- 

defendant Ben Wright had testified that McCleskey was the 

triggerman (App. C, 890 F.2d at 352); but it ignored the District 

Court's finding that Wright's testimony was "obviously 

impeachable." 

In sum, while the District Court found below that the non- 

tainted evidence was severely compromised, the panel on appeal 

independently reweighed that evidence and concluded that it 

"presented a clear indication of McCleskey's guilt." (App. C, 890 

F.24 at 353). 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. 

As an initial matter, the panel's judgment seems to violate 

this Court's interpretation of Rule 52(a) set forth in Amadeo v. 
  

Zant, U.S. , 100 L.Ed.2d4 249 (1988). In that case, the Court 

reasoned 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 

33 

 



  

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 V. 
Bessemer City, 470 U.S. at 574, citing United States v. 
Yellow Cab. CO.y 338 U.S. 338 (1949), and Inwood 
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 
(1982). We reaffirm that stricture today. 

100 L.Ed.2d at 262. 

Even if the panel in McCleskey's case could be viewed as 

having done nothing more than to overturn the District Court's 

ultimate conclusion on a mixed question of fact and law, its 
  

judgment would nonetheless raise important questions of federal 

law which this Court has not previously addressed. 

While the federal appeals courts are in general, although 

not universal, agreement that the question of harmless error is a 

mixed question of law and fact,l’ they are in conflict on the 

applicability of Rule 52(a) to such a question. This Court has 

previously noted the existence of this conflict in Pullman- 
  

Standard v. Swint, stating, 
  

We need not, therefore, address the much-mooted issue 
of the applicability of the Rule 52(a) standard to 
mixed questions of law and fact -- i.e., questions in 
which the historical facts are admitted or established, 
the rule of law is undisputed, and the issue is whether 

  

17 Graham v. Wilson, 828 F.2d 656, at 659 (10th Cir. 
1987) ("Determination of harmless error is a mixed question of 
law and fact."); Ruff v. Kincheloe, 843 F.2d 1240, at 1242 (9th 
Cir. 1988) ("The issue of whether the constitutional error ... is 
harmless is a mixed question of law and fact."); Grizzell Vv. 
Wainwright, 692 F.2d 722 at 725 (11th Cir. 1982) ("From decisions 
in areas involving other types of constitutional errors, it 
appears that the existence of constitutional harmless error is a 
mixed question of law and fact..."); contra, United States ex 
rel. Savory v. Lane, 832 F.2d 1011 at 1018 (7th Cir. 1987) ("At 
the risk of stating the obvious, we note that whether a 
constitutional error is harmless is not only a federal question, 
but one of federal law, and not fact."). 

  

  

  

  

  

  

34 

 



  

the facts satisfy the statutory standard, or to put it 
another way, whether the rule of law as applied to the 
established facts is or is not violated. There is 
substantial authority in the Circuits on both sides of 
this question. (Emphasis added) Compare United States 
ex rel. Johnson v. Johnson, 531 F.2d 169, 174 n. 12 
(CA3 1976); Stafos v. Jarvis, 477 F.2d 369, 372 (CAlO 
1973); and Johnson v. Salisbury, 448 F.2d 374, 377 (CAS 
1970) with Rogers v. Bates, 431 F.2d 16, 18 (CA8 1970); 

and Pennsylvania Casualty Co. v. McCoy, 167 F.2d 132, 
133 (CA5 1948). 

  

  

  

  

  

  

456 U.S. 273, 289 n.19 (1982). 

Ambiguities in applying Rule 52(a) at various stages of 

appellate review of mixed questions have continued to this day. 

Other recent cases in addition to Amadeo, however, strongly 

suggest that it is error for an appellate court completely to 

disregard a district court's factfinding, as the panel did in 

this case. In Strickland v. Washington , 466 U.S. 668, 698   

(1984), for example, the Court suggested that the Eleventh 

Circuit had erred by disregarding Rule 52(a)'s clearly erroneous 

rule in the context of reviewing a different mixed question of 

law and fact -- whether trial counsel's performance met minimum 

Sixth Amendment standards. If the Court's suggestion in 

Strickland were extended to cover the mixed question of harmless   

error, the Eleventh Circuit panel would surely be found to have 

erred in this case as well. 

The Court should grant certiorari to clarify the proper 

role of Rule 52(a) in the appellate review of district court 

findings on the issue of harmless error. 

35 

 



III. 

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER 
WHETHER THE INTRODUCTION OF A TAINTED CONFESSION 
CAN BE HARMLESS ERROR 

The profound impact which confessions have upon juries was 

noted by this Court recently in Cruz v. New York: 
  

"The 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. United States, 391 U.S. 123], 139- 
40 (1968). Confessions of defendants have profound 
impact on juries, so much that we held in Jackson Vv. 
Denno . . . that there is justifiable doubt that 
juries will disregard them even if told to do so. 

  

  

481 U.S. 186, 195 (1987) (White, J., dissenting) 

The panel decision ignored this fundamental insight on the 

evidentiary power of confessions; it concluded instead that 

because McCleskey's confession was "not developed at length" 

during the trial testimony, its admission was harmless error. 

(App. C, 890 F.2d at 353). 

The panel's conclusion runs contrary to this Court's 

recognition of the substantial qualitative difference in jury 
  

impact between confessions and other evidence. The fact that 

McCleskey's ostensible jailhouse "confession" was not a lengthy 

one did not diminish its impact on his jury. Indeed, as this 

Court's precedents make clear, Offie Evans' brief statement that  



McCleskey had admitted he was the triggerman, and that McCleskey 

said he would have killed a dozen officers had it been necessary, 

need not have been a word longer to have had a dramatic effect. 

The panel nonetheless concluded that there was "no 

reasonable likelihood that the jury's imposition of the death 

penalty was affected by Evans' testimony." The conclusion 

simply does not comport with this Court's teachings. Offie 

Evans' dramatic account of McCleskey's "jailhouse confession" 

came at the very close of the guilt trial. The State produced 

only a single additional witness and then began its closing 

argument. Evans' testimony, therefore, was fresh in the jury's 

mind at the time of its deliberations, both on guilt and penalty 

(since no evidence whatsoever was presented at the penalty 

phase) . Evans' testimony played a singular role. No other 

witness was apparently disinterested and possessed with such 

important testimony.18 As this Court noted recently in 

  

18 The panel also made reference to the prior judgment of 
the en banc Eleventh Circuit, which dismissed in 1986, as 
harmless error, McCleskey's earlier constitutional claim under 
Giglio. (Although McCleskey had proven on his initial federal 
application that the State had failed to reveal a promise made to 
Offie Evans in exchange for his testimony, the en banc court 
found the error to be harmless.) (App. C, 890 F.2d at 351). 

  

  

The panel acknowledged that this earlier holding "occurred 
in the context of McCleskey's Giglio claim," but it nonetheless 
concluded that the holding "clearly has bearing on the import of 
Evans' testimony in the context of McCleskey's Massiah claim." 

(1Id.) 

What apparently escaped the panel in making this comparison 
is that the evidentiary impact of these two violations is 
dramatically different for harmless error purposes. Giglio 
simply holds that a jury should have heard, in addition to all of 
Offie Evans' damaging testimony about McCleskey's jailhouse 

37  



  

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. 

The panel's holding that an unconstitutionally-obtained 

confession could not have affected the jury's deliberations, 

either at the guilt or penalty phase, is contrary to applicable 

decisions of this Court, and certiorari should be granted to 

review it. 

CONCLUSION 

The petition for certiorari should be granted. 

Dated: March 23, 1990 Respectfully submitted, 

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

JULIUS L. CHAMBERS 

*JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 
(212) 219-1900 

ATTORNEYS FOR PETITIONER 
WARREN McCLESKEY 

* Attorney of Record BY: 
  

  

"confession," one additional piece of information: that Evans 
was testifying in exchange for a promise. Massiah, by contrast, 
holds that Offie Evans' entire testimony about Warren McCleskey's 
"confession" should never have been heard at all. To confound 
the likely harm to Warren McCleskey from these very different 
constitutional violations is an error sufficiently serious to 
cast the panel's entire judgment on this point into the gravest 
doubt. 

  

  

  

38 

 



  

APPENDIX A 
  

 



  

» 

3 
by 

UNITED STATES DISTRICT COURT ir La 
NORTHERN DISTRICT OF GEORGIA = : Se 

ATLANTA DIVISION i 2 

  

Warren McCleskey 3 : fate 
Th Petitioner : % : 

vs. CIVIL ACTION NO. 1:87-cvz1517-JOF 
i : aA 
i Ralph M. Kemp, Warden 

Respondent 

e
®
 

DE
 

JUDGMENT 
  

The Court, Honorable J. OWEN FORRESTER » United States 

District Judge, by order of this date, having GRANTING the petition for 
a writ of habeas corups, DIRECTING, the petitioner to re-try defendant . 
within 120 days fram receipt of the 12/23/87 order. 

/ 

petitioner 
JUDGMENT is hereby entered in favor of the XEXpswdewt(sX and 

against the FER rex 

Dated at Atlanta, Georgia, this 15 day of January ,» 1988, 
~ with permission of the court Nunc pro tunc for December 23, 1987. 

LUTHER D. THOMAS, Clerk 

   
   

  

  

   

By: as) Potts 
Deputy (¢lerk . : 

FILED AND ENTERED : : 
IN CLERK'S OFFICE TE i 

January 13, 1987 | E 
(Le THOMAS, Clerk | rs altel 

By: C— . : 

Deput Nv Ne 

  

 



  
    

Dmg 
FILED IN CLERK'S OFFICE ; U.S.D.C. - Atlanta 

DEC 23 1°87 

IN THE UNITED STATES DISTRICT COURIER DTH MAS, Clerk 
FOR THE NORTHERN DISTRICT OF GEOH¥WIA YE 

ATLANTA DIVISION eputy Clerk 

  

WARREN McCLESKEY, 

Petitioner, 

VS. : CIVIL ACTION 

NO. C87-1517Aa 
RALPH M. KEMP, Superintendent . : 
Georgia Diagnostic and 
Classification Center, 

Respondent. : 

  

I. INTRODUCTION. 

Petitioner Warren McCleskey, convicted and sentenced to 

death in October 1978 for the murder of Police Officer Frank 

Schlatt during the course of a furniture store robbery, petitions 

this court for a writ of habeas corpus on seven separate grounds: 

(1) that the state's non-disclosure of critical impeachment 

evidence violated his due process fights (the Giglio claim); (2) 

that his capital sentence was the product of intentional racial 

discrimination in violation of his eighth amendment and equal 

protection rights Cie intentional discrimination claim); (3) 

that the trial court's denial of funds to employ experts in his 

defense violated his due process rights (the Ake claim); (4) that 

the use of the petitioner's alleged statements to a jailhouse 

informant violated his sixth amendment and due process rights 

(the Massiah claim); (5) that the state's failure to correct a 
. - 3 . . An eT Fy - A . . ev. On 

  

   



  
AOT2A © 
(Rev. 8/82)     

witness's misleading testimony violated his eighth amendment and 

due process rights (the Mooney claim); (6) that the state's 

reference to appellate review in its closing argument violated 

his eighth amendment and due process rights (the Caldwell claim); 
  

and (7) that the state's systematic exclusion of black jurors 

violated his sixth amendment and equal protection rights (the 

Batson claim). 

For the reasons discussed below, the petit ion for a writ of 

habeas corpus will be granted as to the Massiah claim but denied 

as to all other claims. In Part II of this order the court will 

detail the history of the petitioner's efforts to avoid the death 

penalty. Then, because the successive nature of this petition 

dominates the court's discussion and will be dispositive of many 

of the issues raised by the petition, Part ITI will set out the 

general principles of finality in habeas corpus actions. Next, 

the court will address each of the seven claims raised in this 

petition; first, the successive claims in Part IV (the Giglio, 

intentional discrimination, and Ake claims) and then the new 

claims in Part V (the Massiah, Mooney, Caldwell, and Batson 
    

claims). Finally, in Part vi, ‘the court will address the peti- 

tioner's other pending motions -- a motion for discovery and a 

motion to exceed page limits. e og a. hore - 

II. HISTORY OF PRIOR PROCEEDINGS. 

The petitioner was convicted and sentenced in the Superior 

Court of Fulton County on October 12, 1978. The convictions and 

sentences were affirmed by the Supreme Court of Georgia. 

-2=- 

  

 



  

McCleskey v. State, 245 Ga. 108 (1980). The United States 
  

Supreme Court then denied a petition for certiorari, McCleskey v. 
  

Georgia, 449 U.S. 891 (1980). On December 19, 1980, the peti- 

tioner filed an extraordinary motion for a new trial in Fulton 

County Superior Court, but no hearing has ever been held on that 

motion. On January 5, 1981 the petitioner filed a petition for 

writ of habeas corpus in the Butts County Superior Court. On 

w
o
®
 

April 8, 1981, that court denied all re.jief. On June 17, 1981 

the Georgia Supreme Court denied the petiticner's application for 

a certificate of probable cause to appeal. The United States 

Supreme Court again denied a petition for a writ of certiorari. 

McCleskey v. Zant, 454 U.S. 1093 (1981). 
  

McCleskey filed his first federal habeas corpus petition in 

this court on December 30, 198l. This court held an evidentiary 

J hearing in August and October 1983 and granted habeas corpus 

relief on one issue on February 1, 1984. McCleskey v. Zant, 580 
  

. F.. Supp. 338 (N.D.Ga. 1984). The Eleventh Circult reversed and 

denied the habeas corpus petition on January 29, 1985. McCleskey 
  

v. Kemp, 753 F.2d 877 {11th Cir. 1985) (ez banc). This time the 

United States Supreme Court granted certiorari and affirmed the 

  

Eleventh Circuit on April 22; 1987. McCleskey v. Kemp, U.s. 

  

ry 107 S.Ct. 1756, petition for rehearing denied, U.S, ’ 

107 S.Ct. 3199 (1987). McCleskey filed a successive petition for 

a writ of habeas corpus in the Butts County Superior Court on 

June 9, 1987, and a.First Amendment to the Petition on June 22, 

1987 (Civil Action No. 87-Vv-10283). That court granted the   AOT2A © 3 
(Rev. 8/82) :     

re ge 7 ET A, AG TA RA Sp 

 



  

state's motion to dismiss the petition on July 1, 1987. The 

Georgia Supreme Court denied the petitioner's application for a 

certificate of probable cause to appeal on July 7, 1987 (Ap- 

plication No. 4103). 

This court issued an order on June 16, 1987 making the 

| mandate of the Eleventh Circuit the judgment of this court and 

lifting the stay of execution that had been entered when the 

[ . first federal habeas corpus petition was filed. On July 7, 1987 

McCleskey filed the present petition for a writ of habeas corpus, 

a request to proceed in forma pauperis, a motion for cdiscovery, 
  

and a motion for a stay of execution. The court granted the 

request to proceed in fcrma pauperis and held an evidentiary 
  

hearing on the petition or July 8 and 9, 1987. At that time, the 

court granted the nit ton for a stay of execution. The court took 

further evidence in a hearing on August 10, 1987 anc, at the 

close of the evidence, reguested post-hearing briefs from the 

parties. Those briefs have since been filed and the petitioner's 

claims are ripe for determination. 

III. THE DOCTRINE OF FINALITY IN HABEAS CORPUS PETITIONS. 

Although successive petitions for a writ of habeas corpus 

are not subject to the defense of res judicata, Congress and the 
  

courts have fashioned a "modified. gocrrine of finality" which 

preciades a determination of the merits of a successive petition 
- 

under certain circumstances. Bass v. Wainwright, 675 F.2d 1204, 
  

: 1206 (llth Cir. 1982). In particular, Congress has authorized 

the federal courts to decline to address the merits of a petition       AOT2A © i : d= 
(Rev. 8/82) iF a 

Se: po . it ~ mp em en a me om pn 1 Sg 3 gon 

 



[3 - ~ Co , & p 

  

if the claims contained therein were decided upon the merits 

previously or if any new grounds for relief that are asserted } 

should have been raised in the previous petition. 28 USC 

§2244(a) & (b). The habeas rules have described these distinct 

applications of the doctrine of finality as follows: 

i A second or successive petition may be 
aah dismissed if the judge finds that it fails to 
ie 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. 

e
w
"
 

28 USC foll. $2254, Rule 9(bh). 

A purely successive petition or successive claim raises 

issues which have been decided adversely on a previous petition. 

The court may take judicial notice of allegations raised by a 

previous petition. See Allen v. Newsome, 795 F.2d 934, 937 (1llth 
  

Cir. 1956). . Rule 9(b) requires that the issue raised by the 

previous petition must have been decided adversely to the 

‘petitioner on the merits before the doctrine of finality obtains. 

A merits determination need not be a determination made after an 

evidentiary hearing if the facts material to the successive claim 

were undisputed at the time of the previous petition. Bass, 675 

F.2d at 1206. | : 

A truly successive petition may be distinguished from the 

second category of petitions subject -to the finality doctrine: 

petitions alleging new claims that may be an "abuse of the writ." 

28 USC §2244(b); 28 USC foll. §2254, Rule 9(b). The state has 

AOT2A © ™ = “Be 
(Rev. 8/82)       
 



  

» 
|] 
» 

  

    

7 oat { “20 
- Eons af 

the burden of pleading abuse of the writ; the burden then shifts 

to the petitioner to show that he has not abused the writ. Price 

v. Johnston, 334 U.S. 266, 292-93 (1948): see also Allen v.   

  

Newsome, 795 F.2d 934, 938-39 (llth Cir. 1986). To meet his 

burden, a petitioner must "give a good excuse for not having 

raised his claims previously." Allen 794 F.24 at 939. An 

evidentiary hearing on an abuse of the writ defense is not 

necessary if the record affords an adequate basis for decision. 

Price, 334 U.S. at 292-93. 

As this circuit has articulated the issue presented by an 

abuse of the writ defense, "[a] district court need not consider 

a claim raised for the first time in a second habeas petition, 

unless the petitioner establishes that the failure to raise the 

claim earlier was not ‘the result of intentional abandonment or 

withholding or inexcusable neglect." Adams v. Dugcer, 816 F.2d 
  

1493, 1494 (llth Cir. 1987) (citations omitted). See also Moore 
  

v. Kemp, 824 F.2d 847, 851 (llth Cir. 1987). There are a number 

of instances in which failure to raise an issue in a prior 

petition is excusable. "A retroactive change in the law and newly 

discovered evidence are examples." 28 USC foll. §2254, Rule 9 

Advisory Committee Notes. See, e.g., Ritter v. Thigpen, 828 F.2d 
  

662, 665 (llth Cir. 1987); Adams, 816 F.2d at 1495. Of course, 

failure to discover evidence supportive of a claim prior to the 

first petition may itself constitute inexcusable neglect or  



; ”™ 
. \ A) 

< - we o 25 7 

  

deliberate bypass. Cf. Freeman v. Georgia, 599 F.2d 65, 71-72 
  

(5th Cir. 1979) (no procedural default where petitioner was   misled by police and could not have uncovered evidence supportive 

le
. 

Ba
 

I
E
.
 

of a claim in any event).? 

Even if a particular claim is truly successive or, if it is 

a new claim, is an abuse of the writ, a court may consider the 

merits of the claim if "the ends of justice" would be serveé 

: thereby. See Sanders v. United States, 373 U.S. 1, 16 (1963) 
  

(successive claim); id. at 18 (new claim); Smith v. Kemp, 713 
  

F.2d 1459, 1468 (llth Cir. 1983) (successive claim); Moore v. 
  

Kemp, 824 F.2d at 856 (new claim).. The burden is upon the 

petitioner to show that the ends of justice would be served. 

Sanders, 373 U.S. at 17. 
/ 

The "ends of justice" exception has been subject to dif- 

fering interpretations. The Court in Sanders suggested some 

circumstances in which the "ends of justice" would be served bv 

re-visiting a successive claim: 

If factual issues are involved, the applicant 
is entitled to a new hearing upon a showing 
that the evidentiary hearing on the prior 
application was not full and fair; we 
canvassed the criteria of a full and fair 
evidentiary hearing recently in Townsend v. 
Sain, 1372. U.S... 293 (19633), "and that 
discussion need not be repeated here. If 
purely legal questions are involved, the-. LT 
applicant may be entitled to a new hearing 
upon showing an intervening change in the law 
or some other justification for having failed 
to raise a crucial point or argument in the 
prior application. eis 2 [Tlhe foregoing 
enumeration is not intended to be exhaustive; 
the test is "the ends of justice" and it 
cannot be too finely particularized. 

  

AOT2A © 2 pa’ Aa 
(Rev. 8/82)       
 



  
AOT2A © 
(Rev. 8/82) 

  

373 U.S. at 16-17. This circuit has traditionally followed the 

Sanders articulation of the "ends of justice" exception. See, 

  
  

e€.9., Moore v, Kemp, 824 P.24 at 856; Smith v. Remp, 715 F.24 at 

1468. | 

A plurality of the Supreme Court recently challenged this 

open-ended definition of "the ends of justice," arguing that a 

successive claim should not be addressed unless the petitioner 

"supplements his constitutional claim with a colcrable showing of 

factual innocence." Kuhlmann v. Wilson, U.S. +. 106'S.Ct. 
  

2616, 2627 (1986) (Opinion of Powell, J., jcined by Burger, 

Rehnquist, and O'Connor, JJ.). Under this definition of the 

"ends of justice," the petitioner "must make his evidentiary 

showing even though ... the evidence of guilt may have been 

unlawfully admitted." id. That is, petitioner rust "show a fair 

probability that, in light of all the evidence, including that 

alleged to have been illegally admitted (but with due regard to 

any unreliability of it) and evidence tenably claimed to have 

been wrongfully excluded or to have become available only after 

trial, the trier of facts would have entertained a reasonable 

doubt of his guilt." 1d. n. 17 (quoting Friendly, Is Innocence 
  

Irrelevant? Collateral Attack on Criminal Judgments, 38 
      U.Chi.L.Rev. 142 (1970)). 

Following Kuhlmann, "[i]t is not certain what standards   

should guide a district court in determining whether the 'ends of 

justice' require the consideration of an otherwise dismissable 

successive habeas petition." Moore, 824 F.2d at 856. The  



  

£ 
LJ 
[J 

AO 772A © 
{Rev. 8/82)     

Eleventh Circuit, in Moore, declined to decide "whether a 

colorable showing of factual innocence is a necessary condition 

for the application of the ends of justice exception." Id. The 

court merely held that, "at a minimum, the ends of justice will 

demand consideration of the merits of a claim on a successive 

petition where there is a colorable showing of factual irno- 

cence." Id. 

IV. PETITIONER'S SUCCESSIVE CLAIMS. 

Three of the petitioner's claims in this second federal 

habeas petition duplicate claims in the first federal petition 

and are therefore truly successive claims that should be éis- 

missed according to the dictates of Rule 9(b) unless the peti- 

tioner can show that the "ends of justice" justify re-visiting 

the claims. Each claim will be discussed in turn. 
/ 7 

A. Giglio Claim. 
  

Petitioner's Giglio claim is based upon the state's failure 

to disclose its agreement with a witness, Offie Evans, which led 

him to testify against petitioner at trial. McCleskey arcues 

that the state's failure to disclose the promise by a police 

detective to "speak a word" for Offie Evans with regard to an 

escape charge violated McCleskey's due process rights under 

  

Giglio v. United States, 405 U.S. 150 (1971). Giglio hela that 

failure to disclose the possible interest of a government witness. 
~ 

will entitle a defendant to a new trial if there is a reasonable 
-my 

likelihood that the disclosure would have affected the judgment 

of the jury. Id. at 154. This court granted habeas corpus 

  

  
 



- - 

  

relief on this claim in passing upon the first federal habeas 

petition, but the Eleventh Circuit reversed en banc. McCleskey 
  

v. Zant, 580 F. Supp. at 380-84, rev'd sub nom. McCleskey v. 
  

Kemp, 753 F.2d at 885. 

P
P
R
,
 

S
U
P
P
E
R
 

- 

McCleskey argues that the ends of Justice require re- 

! visiting his Giglio claim for three reasons. He argues that the 

discovery of a written statement by Offie Evans provides new 

e
w
"
 

evidence of a relationship between Offie Evans and the state 

supportive of a finding of a guid pro cuc for Offie Evans' 
  

testimony. He also proffers the affidavit testimony of jurors 

who indicate that they might have reached a different verdict had 

they known the real interest of Offie Evans in testifying against 

petitioner. Finally, petitioner contends that there has been a 

change in the law veuRraing the materiality standard for a 

finding of a Gl41io violation. 

None of these arguments is sufficient to justify re-visiting 

the Giglio claim. The written statement of Offie Evans offers no 

new evidence of an agreement by state authorities to do Offie 

Evans a favor if he would testify against petitioner. Conse- 

quently, the conclusion of the Eleventh Circuit that the de- 

tective's promise ' did not amount to a promise of leniency 

triggering Giglio is still valid. See McCleskey Vv. emp pais: 
~ 

F.2d at 885. Because the threshold showing of a promise still 
* - 

  

has not been made, the ends of justice would not be served by 

allowing petitioner to press this claim again. 

r
n
 
A
 

a
e
 

Fa 
4H
     AOT2A © 10 

: (Rev. 8/82) :   
 



  

¥ 
! 

AOT2A © 

(Rev. 8/82)     

Petitioner also has no newly discovered evidence with 

respect to the materiality of the state's failure to disclose its 

arrangement with Offie Evans. The affidavit testimony of the 

jurors is not evidence that petitioner could not have obtained at 

the time of the first federal habeas petition. In any event, a 

juror is generally held incompetent to testify in impeachment of 

a verdict. Fed. R. Evid. 606(b); Proffitt v. Wainwright, 685 
  

F.24 1227, 1255 (11th Cir. 1982). See generally McCormick on 
  

Evidence §608 (3d Ed. 19&4). 
  

Finally, petitioner can point to no change in the law on the 

standard of materiality. The Eleventh Circuit concluded in this 

case that there was "no 'reasonable likelihood' that the State's 

failure to disclose the detective's [promise] affected the 
/ 
’ 

judgment of the jury." McCleskey, 753 F.2d at 884. The same 
  

standard still guides this circuit in its most recent decisions 

on the issue. See, e.g., United States v. Burroughs, No. 
  

86=3566, Slip Op. at 381 {(1lith Cir., Nov. 3, 1987); Brown, 785 

F.2d at 1464 (citing McCleskey v. Kemp, 753 F.24 at 885), 
  

B. Intentional Discrimination Claim. 
  

Having lost in the Supreme Court3 on his contentions re- 

garding the Baldus Study, the petitioner nevertheless trctted it 

out to support the fiore: narrow contention that McCleskey was 

singled out both because he is black and because his victim was 

white. 

-ll~ 

  

 



  

The Baldus Study is said to be the most ambitious yet. It 

is. The part of it that is ambitious, however -- the 230-vari- 

able model structured and validated by Dr. Baldus =-- did not 

adduce one smidgen of evidence that the race of the defendants or 

the race of the victims had any effect on the Georgia prose- 

| cutors' decisions to seek the death penalty or the juries’ 

| decisions to impose it. The model that Dr. Baldus testified 

accounted for all of the neutral variables did not produce any w
e
o
™
 

"death-odds multiplier" of 4 or 6 or 11 or 14 or any of the other 

numbers which the media have reported. 

To be sure, there are some exhibits that would show discrim- 

ination and do‘'contain such multipliers. But these were not 

produced by the "ambitious" 230-variable model of the study. The 

widely-reported *death-udds multipliers" were produced instead by 

arbitrarily structured little rinky-dink regressions that 

accounted for only a few variables. They are of the sort of 

statistical analysis given short shrift by courts and social 

scientists alike in the past. They prove nothing other than the 

truth of the adage that anything may be proved by statistics. 

The facts are that the onil ev idente of over-zealousness or 

improprieties by any person(s) in the law enforcement estab- 

lishment points to the black case officers of the Atlanta Bureau 
“= 

of Police Services,? which was then under the leadership of a 

black superior who reported to a black mayor in a majority black 

city. The verdict was returned by a jury on which a black person 

sat and, although McCleskey has adduced affidavits from jurors on 

AOT2A © -12- 
(Rev. 8/82)       

ar gn 

 



  
AOT2A © 

(Rev. 8/82)     

other subjects, there is no evidence that the black juror voted 

for conviction and the death penalty because she was intimidated 

by the white jurors. It is most unlikely that any of these black 

citizens who played vital roles in this case charged, convicted 

or sentenced McCleskey because of the racial considerations 

alleged. | 

There is no other evidence that race played a part in this 

case. 

C. Ake Claim. 
  

Petitioner's last truly successive claim is based upon the 

trial court's denial of his recingt for the provision of funds 

for experts, particularly for a ballistics expert. Petitioner 

alleges that this ruling by the trial court denied him his right 

to due process of law as guaranteed by the fourteenth amendment. 

Petitioner raised this same claim in the first federal habeas 

petition and this court held that the claim was without merit. 

McCleskey v. Zant, 580 F. Supp. at 388-89 (citing Mcecre v. Zant, 
  

  

722 F.2d 640 (11th Cir. .1983)). At that time the law held that 

the appointment of experts was generally a matter within the 

discretion of the trial judge and could not form the basis for a 

due process elainiabsent a showing that the trial judge's 

decision rendered the defendant's trial fundamentally unfair. 

Moore, 722 F.2d at 648. With that case law in mind, this court 
=‘. 

concluded that the state trial court had not abused its dis- 

cretion because the petitioner had the opportunity to subject 

-13~   
  

 



  

] 
[J 
» 

AOT2A © 
(Rev. 8/82)     

    

the state's ballistics expert to cross-examination and because 

there was no showing of bias or incompetence on the part of the 

state's expert. McCleskey v. Zant, 580 F. Supp. at 389, 
  

Arguing that the ends of justice require re-visiting the 

claim, petitioner points to the cases of Ake v. Oklahoma, 470 
  

U.S. 68, 83 (1985) and Caldwell v. Mississippi, 472 U.S. 320, 323 
  

nn. 1 (1985) (plurality), as examples of a change in the law 

regarding the provision of experts. It may be that these GATES 

did change the law; this matter, which was traditionally thought 

to rest within the discretion of state trial judges, now has 

heightened constitutional significance. Compare Moore v. Zant, 
  

722 F.2d at 648, with Moore v. Kemp, 809 F.2d 702, 709-12 (lltk 
  

Cir. 1987). 
: / : : 

Even so, this new law does not justify re-visiting this 

claim. The new Supreme Court cases require "that a defendant 

must show the trial court that there exists a reasonable proba- 

bility both that an expert would be of assistance to the defense 

and that denial of expert assistance would result in a funda- 

mentally unfair trial. Thus, if a defendant wants an expert tc 

assist his attorney in confronting the prosecution's proof ... he 

must inform the court of the nature of the prosecution's case and 

how the requested expert would be useful." Vote. Ve Hamp, S508 
~ 

F.2d at 712. A review of the state trial record indicates that 

  

petitioner did nothing more than generally refer to the extensive 

expert testimony available to the state. Petitioner then 

  

specifically requested the appointment of a psychiatric expert. 

-idw 

  

  
 



  
AOT2A © 
(Rev. 8/82) 

  

   

  

    

6: oe 

The petitioner never specifically requested the appointment of a 

ballistics expert, nor did he make the showing that this circuit 

has held is required by Ake and Caldwell. The state trial court 
  

could hardly have been expected to appreciate the importance of a 

ballistics expert to petitioner's case if petitioner himself 

neither requested such an expert nor explained the significance 

of such an expert to the court. 

V. PETITIONER'S NEW CLAIMS. 

A. Massiah Claim. 
  

l. Findings of Fact. 

Petitioner relies primarily on the testimony of Ulysses 

Worthy before this court and the recently disclosed written 

statement of Offie Evans to support his Massiah claim. Ulysses 

Worthy, who was captain of the day watch at the Fulton County 

Jail during the suner fof 1978 when petitioner was being held 

there awaiting his trial for murder and armed robbery, testified 

before this court on July 9 and August 10, 1987. The court will 

set out the pertinent parts of that testimony and then summarize 

the information it reveals. 

On July 9, Worthy testified as follows: He recalled 

"something being said" to Evans by Police Officer Dorsey or 

another officer about engaging in conversations with McCleskey 

(II Tr. 147-49).° He remembered a conversation, whee Detactive 
~ 

Dorsey and perhaps other officers were present, in which Evans 
ey 

was asked to engage in conversations with McCleskey (II Tr. 150). 

lB 

             

  

    A RS RSE TT ET TE em, 

Ye A Te Fa Bre SIRE, TA 

 



  

Later, Evans requested permission to call the detectives (II Tr. 

151). Assistant District Attorney Russell Parker and Detective 

Harris used Worthy's office to interview Evans at one point, 

which could have been the time they came out to the jail at 

Evans' request (Id.). 

In other cases, Worthy had honored police requests that 

[Bi
an 

1 [
S
P
N
 

someone be placed adjacent to another inmate to listen for 

information (II Tr. 152); such requests usually would come from 

CR
 

Ad
 

the officer handling the case (Id.); he recalled specifically 

that such a request was made in this case by the officer on the 

case (II Tr. 153). Evans was put in the cell next to McCleskey 

at the request of the officer on the case (l1d.); "someone asked 

[him] to specifically place Offie Evans in a specific location in 

the Fulton County Jail 50 he could overhear conversations with 

Warren McCleskey," but Worthy did not know who made the request 

and he was not sure whether the request was made when Evans 

first came into the jail (II Tr. 153-54); he did not recall when 

he was asked to move Evans (II Tr. 155-56). 

On August 10, 1987 Worthy testified as follows: Evans was 

first brought to his attention when Deputy Hamilton brought Evans 

to Worthy's office because Evans wanted to call the district 

attorney or the police with "some information he wanted to pass 
~ 

to them" (III Tr. 14). The first time the investigators on the 
. ‘- 

Schlatt murder case talked to Evans was "a few days" after Evans' 

d call (III Tr. 16-17). That meeting took place in Worthy's office 

r
T
 

(III Tr. 17). Worthy was asked to move Evans "from one cell to 

F .. H :       YC OAOT2A © rs -16- 
(Rev. 8/82) Bef 

ae arte A A -~ np — TT —— Tt 

 



  

# 
s 
v 

AO 72A © 
(Rev. 8/82) -     

£: C 

another" (III Tr. 18). Worthy was "not sure" who asked, "but it 

would have had ... to have been one of the officers," Deputy 

Hamilton, or Evans (IIT Tr. 18-19). Deputy Hamilton asked 

Worthy to move Evans "perhaps 10, 15 minutes" after Evans' 

interview with the investigators (III Tr. 20). This was the 

first and only time Worthy was asked to move Evans (Id.). Deputy 

Hamilton would have been "one of the ones" to physically move 

Evans (III Tr. 22). Worthy did not know for a fact that Evans 

was ever actually moved (Id.). The investigators later came out 

to interview Evans on other occasions, but not in Worthy's 

presence (Ill Tr. 23). Neither Detectives Harris, Dorsey or 

Jowers nor Assistant District Attorney Parker ever asked Worthy 

to move Evans (III Tr. 24). 

On cross-examination, Worthy re-affirmed portions of his 

July 9 testimeny: He overheard someone ask Bvans to engage in 

conversation with McCleskey at a time when Officer Dorsey and 

another officer were present (III Tr. 32-33). Evans requested 

permission to call the investigators after he was asked to engage 

in conversation with McCleskey (III Tr. 33). Usually the case 

officer would be the one to request that an inmate be moved and 

that was the case with Evans, though he does not know exactly who 

made the request (III Tr. 46-48). Worthy also contradicted 

portions of his July 9 Lestinony. Staking that the interview at 

which Assistant District Attorney Parker was present was the 

first time Evans was interviewed and that Worthy had not met 

Officer Dorsey prior to that time (III Tr, 36). On further 

wl 7 

  

  

  

  
   



  
AO 72A © 
{Rev. 8/82)     

: G 6 Na 

cross-examination, Worthy testified as follows: Deputy Hamilton 

was not a case officer but was a deputy at the jail (III Tr. 49). 

When Worthy testified on July 9 he did not know what legal issues 

were before the court (III Tr. 52-53). After his July 9 testi- 

mony he met with the state's attorneys on two occasions for a 

total of forty to fifty minutes (III Tr. 53-54). After his 

July 9 testimony he read a local newspaper article mentioning him 

(311 Tr. 56). 

In response to questions from the court, Worthy stated that 

he was satisfied that he was asked for Evans "to be placed near 

McCleskey's cell," that "Evans was asked to overhear McCleskey 

talk about this case," and that Evans was asked to "get some 

information from" McCleskey (III Tr. 64-65). Worthy maintained 

that these requests were made on the date that Assistant 

District Attorney Parker interviewed Evans, but he could not 

explain why the investigators would have requested a move on the 

same day that Evans had already told the investigators that he 

was next to McCleskey, that he had been listening to what 

McCleskey had been saying, and that he had been asking McCleskey 

questions (III Tr. 64). 

In summary, Worthy never wavered from the fact that someone, 

at some point, requested his permission to move Evans to be near 

McCleskey. Worthy's July 9 testimony indicates the following 
33 TE 

sequence: The request to move Evans, the move, Evans' request to 

call the investigators, the Parker interview, and other later 

interviews. Worthy's August 10 testimony indicates a different 

18 

  

 



  
AO72A © 
(Rev. 8/82) 

  

   

    

C. ae 

"en? Go % 
-“..* 

sequence: Evans' request to call the izvestigators, the Parker 

interview, the request to move Evans by Deputy Hamilton, and 

other later interviews. Worthy's testizony is inconsistent on 

Officer Dorsey's role in requesting the mcve, on whether Deputy 

Hamilton requested the move, and on whether the request to move 

Evans preceded Evans' request to call the investigators. Worthy 

has no explanation for why the authorities would have requested 

to move Evans after the Parker interview, at which Evans made it 

clear that he was already in the cell adjzcent to McCleskey's. 

All of the law enforcement personnel to whom Worthy informed 

-- Deputy Hamilton, Detectives Dorsey, Jowers and Harris, and 

Assistant District Attorney Parker -- flatly denied having 

requested permission to move Evans or 1aving any knowledge of 

such a request being made (III Tr. 68-71; 80-81, 95; 97-98; 

102-03; 111-12, 116).7 It is undisputed that Assistant District 

Attorney Parker met with Evans at the Ful:cn County Jail on only 

one occasion, July 12, 1978, and that Zvans was already in the 

cell next to McCleskey's at that time (IIZ Tr. 113-14; 71-72). 

Petitioner also relies on Evans' twenty-one page statement 

to the Atlanta Police Department, dat=¢é August 1, 1978, in 

support of his claim that the authoritiss deliberately elicited 

incriminating into aaticn from him in violation of his sixth 

amendment right to counsel. Evans' statement relates conversa- 

tions he overheard between McCleskey and McCleskey's co-defendant 

DuPree and conversations between himszlf and McCleskey from 

July 9 to July 12, 1978. McCleskey's statements during the 

-]19- 

SET ASE 
RI RANT 
  

    

 



  
AO T2A © 
(Rev. 8/32) 

  

    

course of those conversations were highly incriminating. In 

support of his argument that the authorities instigated Evans' 

information gathering, McCleskey points to the methods Evans used 

to secure McCleskey's trust and thereby stimulate incriminating 

conversation. Evans repeatedly lied to McCleskey, telling him 

that McCleskey's co-defendant, Ben Wright, was. Evans' nephew; 

that Evans' name was Charles; that Ben had told Evans about 

McCleskey; that Evans had seen Ben recently; that Ben was 

accusing McCleskey of falsely identifying Ben as the "trigger 

man" in the robbery; that Evans "used to stick up with Ben too;" 

that Ben told Evans that McCleskey shot Officer Schlatt; and that 

Evans was supposed to have been in on the robbery himself. 

In addition, McCleskey argues that Evans' knowledge that 

McCleskey and other co-defendants had told police that co- 

defendant Ben Wright was the trigger person demonstrates Evans’ 

collusion with the police since that fact had not been made 

public at that time. Finally, McCleskey points to two additional 

pieces of evidence about Evans' relationship with the police: 

Evans testified at McCleskey's trial that he had talked to 

Detective Dorsey about the case before he talked to Assistant 

District Attorney Parker (Pet. Exh. 16 at 119); and Evans had 

acted as an informant for Detective Dorsey before (II Tr. 52-3). 

The factual issue for the court to resolve is simply stated: 

Either the authorities moved Evans to the cell adjoining 

McCleskey's in an effort to obtain incriminating information or 

they did not. There is evidence to support the argument that 

20   
 



  
    

C & 
Evans was not moved, that he was in the adjoining cell fortu- 

itously, and that his conversations with McCleskey preceded his 

contact with the authorities.  Werthyrs testimony is often 

confused and self-contradictory, it is directly contrary to the 

testimony of Deputy Hamilton and Detective Dorsey, it is contrary 

to Evans' testimony at McCleskey's trial that he was put in the 

adjoining cell "straight from the street" (Trial Tr. 873), and it 

is contrary to the opening line of Evans' written statement 

which says, "I am in the Fulton County Jail cell # 1 north 14 

where I have been since July 3, 1978 for escape." Worthy himself 

testified that escape risks where housed in that wing of the jail 

{III Tr... 13-14). Moreover, the use of Evans as McCleskey 

alleges, if it occurred, developed into a complicated scheme to 

violate McCleskey's constitutional rights -- its success required 

Evans and any officers involved to lie and lie well about the 

circumstances. For these reasons, the state asks this court to 

reject Worthy's testimony that someone requested permission to 

move Evans next to McCleskey's cell. 

After carefully considering the substance of Worthy's 

testimony, his demeanor, and the other relevant evidence in this 

-case, the court concludes that it cannot reject Worthy's testi- 

mony about the favtiof a request to move Offie Evans. The fact 

that someone, at some point, requested his permission to move 

Evans is the one fact from which Worthy never wavered in his two 

days of direct and cross-examination. The state has introduced 

no affirmative evidence that Worthy is either lying or mistaken. 

~31]- 

      
 



    
    

Co : ; E> 

The lack of corroboration by other witnesses is not surprising; 

the other witnesses, like Assistant District Attorney Parker, had 

no reason to know of a request to move Evans or, like Detective 

Dorsey, had an obvious interest in concealing any such arrange- 

ment. Worthy, by contrast, had no apparent interest or bias that 

would explain any conscious deception. Worthy's testimony that 

he was asked to move Evans is further bolstered by Evans’ 

testimony that he talked to Detective Dorsey before 5s talked to 

Assistant District Attorney Parker and by Evans' apparent 

knowledge of details of the robbery and homicide kxnown only to 

the police and the perpetrators. 

Once it is accepted that Worthy was asked for permission to 

move Evans, the conclusion follows swiftly that the sequence of 

events to which Worthy testified originally must be the correct 

sequence; i.e., the request to move Evans, the move, Evans’ 

request to call the investigators, the Parker interview, and 

other later interviews. There are two other pcssible con- 

clusions about the timing of the request to move Evans, but 

neither is tenable. First, the request to move Evans could have 

come following Evans' meeting with Assistant Dis=-rict Attorney 

Parker, as Worthy seemed to be testifying on August: 10 (III Tr. 

20). However, a request at that point would have been non= 
~ 

sensical because Evans was already in the cell adjoining 

McCleskey's. Second, it could be that Evans was originally in the 

cell next to McCleskey, that he overheard the incriminating 

statements prior to any contact with the investigators, that 

-2T-  



  
AOT2A ©. 
(Rev.8/82)     

  

oer 3 

aa? fo 

McCleskey was moved to a different cell, and that the authorities 

then requested permission to move Evans to again be adjacent to 

McCleskey. As the state concedes, this possibility is mere 

speculation and is not supported by any evidence in the record. 

Post-Hearing Brief at 53. 

For the foregoing reasons, the court concludes that peti- 

tioner has established by a preponderance of the evidence the 

following sequence of events: Evans was not originally in ths 

cell adjoining McCleskey's; prior to July 9, 1978, he was moved, 

pursuant to a request approved by Worthy, to the adjoining cell 

for the purpose of gathering incriminating information; Evans was 

probably coached in how to approach McCleskey and given critical 

facts unknown to the general public; Evans engaged McCleskey i= 

conversation and eavesdropped on McCleskey's conversations wit 

DuPree; and Evans reported what he had heard between July 9 an:z 

July 12, 1978 to Assistant District Attorney Parker on July 12. 

2. Abuse of the Writ Questions. 

The state argues that petitioner's Massiah claim in this 

second federal habeas petition is an abuse of the writ because hs 

intentionally abandoned the alain after his first state habeas 

petition and Pecauss his failure to raise this claim in his firs: 

federal habeas petition was due to inexcusable neglect. As was 

noted earlier, the burden is on petitioner to show that he has 

not abused the writ. Allen, 795 F.2d at 938-39, The cour: 

concludes that petitioner's Massiah claim is not an abuse of the 

writ. 

  

 



  
    AOT2A O° 

  

First, petitioner cannot be said to have intentionally 

abandoned this claim. Although petitioner did raise a Massiah 

claim in his first state petition, that claim was dropped because 

it was obvious that it could not succeed given the then-known 

facts. At the time of his first federal petition, petitioner was 

unaware of Evans' written statement, which, as noted above, 

contains strong indications of an ab initio relationship between 
  

Evans and the authorities. Abandoning a claim whose supporting 

facts only later beddnd 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 

V. Nola, 372 u.s. 391, 439 (1963), quoted in Potts v. Zant, 638 
  

F.24 127, 743 (5th Cir. 1981). Petitioner's Massiah claim is 

therefore not an abuse of the writ on which no evidence should 

have been taken. This 1s not a case where petitioner has 

reserved his proof or deliberately withheld his claim for a 

second. petition. Cf. Sanders v, United States, 373 U.S. 1, 18 
  

(1963). Nor is the petitioner now raising an issue identical to 

one he earlier considered without merit. Cf. Booker v. Wain- 
  

wright, 764 F.2d 1371, 1377 (11th Cir. 1985). 

Second, petitioner's failure to raise this claim in his 

first federal habeas petition was.not due to his inexcusable 
~~ 

neglect. When the state alleges inexcusable neglect, the focus 
-—- 

is on "the petitioner's conduct and knowledge at the time of the 

preceding federal application. “is He is chargeable with 

counsel's actual awareness of the factual and legal bases of the 

~~ 

  

 



  

’ 
LJ 
4 

AO72A © 
(Rev. 8/82) 

  

    

claim at the time of the first petition and with the knowledge 

that would have been possessed by reasonably competent counsel at 

the time of the first petition." Moore, 824 F.2d at 851. Here, 

petitioner did not have Evans' statement or Worthy's testimony at 

the time of his first federal petition; there is therefore no 

inexcusable neglect unless "reasonably competent counsel" would 

have discovered the evidence prior to the first federal petition. 

This court concluded at the evidentiary hearing that petitioner's 

counsel's failure to discover Evans' written statement was not 

inexcusable neglect (I Tr. 118-19). The same is true of coun- 

sel'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." Petitioner's Post-Hearing Reply Brief at 5. 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. See ROSS Vv. Remp, 785 F.2d 1467, 
-g 

1478 (llth Cir. 1986) (remanding for evidentiary hearing on 

  

-25  



  
AO72A © 
(Rev. 8/82) 

i 

  

    

inexcusable neglect where petitioner's counsel may have relied on 

misrepresentations by the custodian of the relevant state 

records). 

In short, the petitioner's Massiah claim as it is currently 

framed is not an abuse of the writ because it is distinct from 

the Massiah claim originally raised in his first state petition 

and because it is based on new evidence. Petitioner's failure to 

discover this evidence earlier was nct due to inexcusable 

neglect. Because this claim is not an abuss of the writ it is not 

a successive petition under section 2244(b) and therefore the 

court need not inquire whether the petitioner has made a color- 

able showing of factual innocence, if that showing is now the 

equivalent of the "ends of justice." Euhlmann, 106 S.Ct. at 
7 

  

2628 n. 18. 

3. Conclusions of Law. 

The Eleventh Circuit recently summzrized the petitioner's 

burden in cases such as this: 

In order to establish a violation of the 
Sixth Amendment in a jailhouse informant 
case, the accused must show (1) that a fellow. 
inmate was a government agent; and (2) that 
the inmate deliberately elicited incrim- 
inating statements from the accused. 

Lightbourne v. Dugger, 829 F.2d 1012, 1023 (llth Cir. 1987). The 
  

coincidence of similar elements first lsd the Supreme Court to 

conclude that such a defendant was ‘denied his sixth amendment 

right to assistance of counsel in Massiah v. United States, 377 
  

U.S. 201 (1964). In that case, the defendant's confederate 

“26  



  
AOT2A © 
(Rev. 8/82) 

  

    
o
o
 

  

cooperated with the government in its investigation and allowed 

his automobile to be "bugged." The confederate subsequently had 

a conversation in the car with the defendant during which the 

defendant made incriminating statements. The confederate then 

testified about the defendant's statements at the defendant's 

trial. The Supreme Court held that the defendant had been 

"denied the basic protections of [the sixth amendment] when it 

was used against him at his trial evidence of his own incrim- 

inating words, which federal agents had deliberately elicited 

from him after he had been indicted and in the absence of his 

counsel." Fd. at 206.5 

The Supreme Court applied its ruling in Massizh to the 

jailhouse informant situation in United States v. Henry, 447 U.S. 
  

264 (1980). In that case, a paid informant for the FBI happened 

to be an inmate in the same jail in which defendant Eenry was 

being held pending trial. An investigator instructed the 

informant inmate to pay particular attention to statements made 

by the defendant, but admonished the inmate not tc solicit 

information from the defendant regarding the defendant's in- 

dictment for bank robbery. The inmate engaged the defsndant in 

conversations regarding the bank robbery and subsequently 

testified at trial against the defendant based upcn these 

conversations. The Supreme Court held that Ha innate had 

deliberately elicited incriminating statements by encaging the 

defendant in conversation about the bank robbery. Id. at 271. It 

-27-  



SRL Tie €. | 2 
S- 

  

was held irrelevant under Massiah whether the informant ques- 

tioned the defendant about the crime or merely engaged in general 

conversation which led to the disclosure of incriminating 

statements apout the crime. 14. at 271-72 n. 10. Although the 

government insisted that it should not be held responsible for 

the inmate's interrogation of the defendant in light of its 

specific instructions to the contrary, the Court held that 

employing a paid informant who converses with an unsuspecting ’ 
s 
» 

inmate while both are in custody amounts to "intentionally 

creating a situation likely to induce [the defendant] to make 

incriminating statements without the assistance of counsel." Id. 

at 274.7 

Given the facts established earlier, petitioner has clearly 

established a Massiah ‘violation here. It is clear from Evans’ 

written statement that he did much more than merely engage 

petitioner in conversation about petitioner's crimes. As 

discussed earlier, Evans repeatedly lied to petitioner in order 

to gain his trust and to draw him into incriminating statements. 

Worthy's testimony establishes that Evans, in eliciting the 

incriminating statements, was acting as an agent of the state. 

This case is completely unlike Kuhlmann v. Wilson, 106 S.Ct. 2616 
  

(1986), where the Court found no Massiah violation because the 

inmate informant had been a passive listener and had not de- 

liberately elicited incriminating statements from the defendant.     AOT2A ©. Ma RR ne -28- 
(Rev. 8/82) :   

  

 



  
ACOT2A © 
(Rev. 8/82)     

SN 

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 inter- 

preted in Massiah, were violated. 

However, "[n]ot every interrogation in violation of the rule 

set forth in Massiah ... mandates reversal of a conviction." 

United States v. Kilrain, 566 F.2d 979, 982 (5th Cir. 1978). 
  

Instead, "the proper rule [is] one of exclusion of tainted 

evidence rather than a per se standard of reversal if any 

constitutional violation has] occurred." Id. nn. 3, citing 

Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977); Urited States 
  

  

V. Hayles, 471 F.2d 788, 793, cert. denied, 411 U.s. 969 (5th 
  

  

Cir. 1973). In other words, "certain violations of the right to 
/ 

counsel may be disregarded as harmless error." United States v. 
  

Morrison, 449 U.S. 361, 365 (1981), citing Chapman v. California, 
  

  

386 U.S. 18, 23 n. 8 (1967). To avoid reversal of petitioner's 

~ conviction the state must "prove beyond a reasonable doubt that 

the error complained of [the use at petitioner's trial of his own 

incriminating statements obtained in violation of his sixth 

amendment rights] did not contribute to the verdict obtained." 

Chapman, 386 U.S. at 24. See also Brown v. Dugger, No. 85-6082, 
  

Slip Op. at 511-12 (llth-Cir. November 13, 1987).  . 
~~ 

Once the fact of the Massiah violation in this case is 

accepted, it is not possible to find that the error was harmless. 

A review of the evidence presented at the petitioner's trial 

  

«29 

  

 



  

[] 
s 
[4 

    

reveals that Evans' testimony about the petitioner's incrim- 

inating statements was critical to the state's case. There were 

no witnesses to the shooting and the murder weapon was never 

found. The bulk of the state's case against the petitioner was 

three pronged: (1) evidence that petitioner carried a particular 

gun on the day of the robbery that most likely fired the fatal 

bullets; (2) testimony by co-defendant Ben Wright that petitioner 

pulled the trigger; and (3) Evans’ testimony about 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.® The 

state also emphasizes that Evans testified only in rebuttal ané 

for the sole purpose of impeaching McCleskey's alibi defense. But 

the chronological placement of Evans’ testimony does not dilute 

its impact -- "merely" impeaching the statement "I didn't do it" 

with the testimony "He told me he did do it" is the functional 

equivalent of case in chief evidence of guilt. 

For the foregoing reasons, the court concludes that peti- 

tioner's sixth amendment rights, as interpreted in Massiah, were 

violated by the use at trial of Evans' testimony about the 

petitioner's incriminating statements because those statements 

were deliberately elicited by an agent of the state after | 

petitioner's thaicident and in the absence of petitioner's 
- 

attorney. Because the court cannot say, beyond a reasonable 

doubt, that the jury would have convicted petitioner without 

  

  

BS 
I
 

2s
 

| S
.
 

 



    
    

C € ~~} 

Evans' testimony about petitioner's incriminating statements, 

petitioner's conviction for the murder of Officer Schlatt must be 

reversed pending a new trial.? 

Unfortunately, one or more of those investigating Officer 

Schlatt's murder stepped out of line. Determined to avenge his 

death, the investigator(s) violated clearly-established case 

law, however artificial or ill-conceived it might have appeared. 

In so doing, the investigator(s) ignored the rule of law that 

Officer Schlatt gave his life in protecting anc thereby tainted 

tl.e prosecution of his killer. 

B. Mooney Claim. 
  

Petitioner's Mooney claim is based upon the state's use at 

trial of misleading testimony by Offie Evans, which petitioner 

7 

contends violated his eighth amendment rights znd his right to 

due process of law under the fourteenth amendmert. See Mooney v. 
  

Holohan, 294 U.S. 103, 112 (1935) (criminal conviction may not be 

obtained using testimony known to be perjured). In particular, 

petitioner contends that the state failed to correct Evans' 

misleading testimony regarding his real interast in testifying 

against petitioner, regarding the circumstances surrounding his 

cooperation with the state, and regarding petitioner's confession 

of having shot Officer _Schlatt. _Petitioner zlleges that) the 

newly discovered statement of Offie Evans reveals these mis- 

leading elements of Offie Evans' testimony at trial. 

-3]-  



  

’ 
® 
[4] 

AOT2A © 
(Rev. 8/82)     

  

Petitioner's allegation that the state misled the jury with 

Offie Evans' testimony that he was a disinterested witness is 

actually a restatement of petitioner's Giglio claim. The 

allegation that the state misled the jury with Offie Evans' 

testimony that he happened to inform the state of petitioner's 

incriminating statements, when in fact the evidence suggests that 

Offie Evans may have been an agent of the state, is a restaterent 

of petitioner's Massiah claim. Consequently, only the alleca- 

tions of misleading testimony regarding the actual shooting need 

to be addressed as allegations supportive of a separate Mocney 

claim. 

As a preliminary matter, the failure of petitioner to raise 

this claim in his first federal habeas petition raises the 

question of abuse of the writ. Because this claim is based uoon 

the newly discovered statement of Offie Evans, the same con- 

clusion reached as to the Massiah claim obtains for this claim. 

It was not an abuse of the writ to fail to raise the Massiah 
  

claim earlier and it was not an abuse of the writ to have failed 

to raise this claim earlier. 

However, on its merits the claim itself is unavailing. In 

order to prevail on this claim, petitioner must establish that 

the state did indeed use false or misleading evidence and that 

the evidence was "material" in obtaining petitioner's conviction 
- - 

or sentence or both. Brown v. Wainwright, 785 F.2d 1457, 1465 
  

(11th Cir. 1986). The test for materiality is whether there is 

"any reasonable likelihood that the false testimony could have 

-32- 

  

 



  

’ 
® 
[4 

  

: A O° 
; 3/82)     

affected the judgment of the jury." Id. at 1465-66 (quoting 

United States v. Bagley, U.S. +>105 8.C¢. 3375, 3382 
  

(1985) (plurality)). Petitioner's allegations of misleading 

testimony regarding his confession fail for two reasons. 

First, no false or misleading testimony was admitted at 

trial. A comparison of Offie Evans' recently discovered state- 

ment and his testimony at trial reveals substantially identical 

testimony regarding McCleskey's confessicn that he saw the 

policeman with a gun and knew there was a choice between getting 

shot by the policeman or shooting the policeman. Compare Pet. 

Exhibit E, at 6 with Trial Tr. at 870. While Offie Evans did use 

the word "panic" in his written statement when describing this 

dilemma, the addition of this word adds nothing to the substance 

of the trial seRe inony 1 whioh conveyed to the jury the exigencies 

of the moment when petitioner fired upon Officer Schlatt. Second, 

even if the omission of this one phrase did render the testimony 

- of Offie Evans misleading, this claim would fail because there is 

no reasonable likelihood that the jury's judgment regarding peti- 

tioner's guilt and his sentencing would have been altered by the 

addition of the phrase "panic" to otherwise substantially 

identical testimony. 

C. Caldwell Claim:— .- SA Lore cr 
  

Petitioner's third new claim is based upon references by the 

prosecutor at petitioner's trial to appellate review of the jury 

sentencing decision and to the reduction on appeal of prior life 

-33-  



    
sentences imposed on petitioner. These references are said to 

have violated petitioner's eighth amendment rights and right to 

due process of law as guaranteed by the fourteenth amendment. 

To the extent petitioner claims that the reference to the 

reduction of prior life sentences was constitutionally impermis- 

fe sible in that it led the jury to impose the death penalty for 

improper or irrelevant reasons, see Tucker v. Francis, 723 F.2d 
  

e
o
"
 

1504 (llth Cir. 1984), this claim comes too late in the day. 

Petitioner was aware of these comments at the time he filed his 

first federal habeas petition but did not articulate this claim 

at that time. Because the state has pled abuse of the writ, 

petitioner must establish that the failure to raise this claim 

during the first federal habeas proceeding was not due to 
/ : 

intentional abandonment or inexcusable neglect. Petitioner has 

offered no excuse for not raising this claim before. He was 

represented by competent counsel at the time and should not be 

heard to argue that he was unaware that these facts would support 

the claim for habeas relief. Indeed, this court recognized the 

potential for such a claim when passing upon the first federal 

habeas petition and concluded "it has not been raised by fully 

competent counsel." McCleskey v. Kemp, 580 F. Supp. at 388 n. 
  

27. ag > A 

Successive petition and abuse of the writ problems also 

plague this claim to the extent that petitioner is arguing that 

the prosecutor's reference to the appellate process somehow 

‘diminished the jury's sense of responsibility during the sen- 

S
R
P
 

PR
IP
EL
 V
R
E
 

SE     AOTZA © ee -34- 
(Rev. 8/82) dr Re   

I
 

L
e
 

pp nh - A ——— pw —— 

 



  

’ 
J 
»’ 

AOT2A © 

(Rev. 8/82)     

tencing phase. This claim in due process terms was presented to 

this court by the first federal habeas petition and rejected. 

McCleskey v. Zant, 580 F. Supp. at 387-88 (citing inter alia Corn 
  

  

v. Zant, 708 F.2d 549, 557 (llth Cir. 1983)). Petitioner has 

of fered no reason that the ends of justice would be served by 

re-visiting this due process claim. 

Petitioner also argues that reference to the appellate 

process violated his eighth amendment rights. Although. peti- 

tioner did not articulate this eighth amendment claim at the time 

of the first federal habeas proceeding, the failure to raise the 

claim at that time does not amount to an abuse of the writ. Only 

after this court ruled upon the first federal habeas petition did 

the Supreme Court indicate that it is a violation of the eighth 

amendment "to rest a death sentence on a determination made by a 

sentencer who has been led to believe that the responsibility for 

determining the appropriateness of the defendant's death rests 

elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328-29 
  

(1985). This circuit has recently held that failure to raise a 

Caldwell claim in a first federal habeas petition filed before 
  

the decision does not amount to abuse of the writ because there 

has been a change ‘in the substantive law. Adams v. Dugger, 816 
  

F.2d 1493, 1495-96 (llth-Cir. 1987) .({per curiam). .. --- pif 

Although this court must reach the merits of the Caldwell 
  

claim, the claim itself fails for the same reasons that the due 

process prong of this claim failed. The essential question is 

whether the comments likely caused the jury to attach diminished 

.. 

Aba 
: 

ji 

  

 



  

] 
4 

h 
1 
: 
[} 
3 

AOA © 
(Rev.8/32)     

- 
ab 

i . n-g 
.? p55 § N. 

a 

consequences to their deliberations on the death penalty. See 

McCleskey v. Zant, 580 F. Supp. at 388. A review of the prose-   

cutor's actual comments at petitioner's trial does not reveal any 

impermissible suggestions regarding the appellate process which 

would have led the jury to believe that the responsibility for 

imposing the death penalty rested elsewhere.. As this court 

observed when passing upon the due process claim raised by the 

first petition, 

The prosecutor's arguments in this case did 
not intimate toc the jury that a death 
sentence could be reviewed or set aside on 
appeal. Rather, the prosecutor's argument 
referred to ‘petitioner's prior criminal 
record and the sentences he had received. The 
court cannot find that such arguments had the 
effect of diminishing the jury's sense of 
responsibility for its deliberations on 
petitioner's sentence. Insofar as petitioner 
claims that the prosecutor's arguments were 
impermissible because they had such an 
effect, the claim is without merit. 

McCleskey v. Zant, 580 F. Supp. at 388. 
  

D. Batson Claim. 
  

Petitioner's final claim rests upon the alleged systematic 

exclusion of black jurors by the prosecutor at petitioner's 

trial. This exclusion is said to have violated petitioner's 

right to a representative jury as guaranteed by the sixth and 

fourteenth amendments. 
—— 

This claim was not raised during the first federal habeas 

proceedings. However, failure to raise this claim could not be 

said to constitute abuse of the writ because prior to the Supreme 

: Eh oe a Ee -36~- 

  

 



i 

i 
| 

AOT2A © . 
(Rev. 8/82) 

  
    

  

Court's decision in Batson v. Kentucky, UsS. ry 107 S.Ct. 
  

708 (1987), petitioner could not have made out a prima facie 

claim absent proof of a pattern of using preemptory strikes to 

exclude black jurors in trials other than petitioner's. See id. 

at 710-11 (citing Swain v. Alabama, 380 U.S. 202 (1965)). 
  

Although petitioner did not abuse the writ by failing to 

raise this claim earlier, the claim itself lacks merit. The 

holding in Batson, which allows defendants to make the prima 

facie showing of an unrepresentative jury by proving a systematic 

exclusion of blacks from their own jury, has not been given 

retroactive application. The Batson decision does not apply 

retroactively to collateral attacks "where the judgment of 

conviction was rendered, the availability of appeal exhausted, 

and the tine fof petition for certiorari had elapsed” before the 

Batson decision. Allen v. Hardy, U.S. rv 106 8.Ct, 2878, 
  

2880 n. 1 (1986) (per curiam). Although the Allen decision dig 

_ not involve a habeas petitioner subject to the death penalty, 

this circuit has specifically held that Batson may not be applied 

retroactively even to a habeas petitioner subject to the death 

penalty. See Lindsey v. Smith, 820 F.2d 1137, 1145 (llth Cir. 
  

1987); High v. Kemp, 819 F.2d 988, 992 (llth Cir. 1987). 
  

VI. OTHER MOTIONS._. —- 

Also pending before this court are petitioner's motions for 

discovery and for leave to exceed this court's page limits. The 

court presumes that the above resolution of the petitioner's 

various claims and the evidentiary hearing held in this case 

e
h
 

Y
 

“37 

  

 



  

» 
* 
» 

AOT2A © 
(Rev. 8/82)     

obviate the need for any further discovery. ' Petitioner's motion 

for discovery, filed before the evidentiary hearing, does not 

provide any reason to think otherwise. The motion for discovery 

is therefore DENIED. The motion to exceed page limits is 

GRANTED. 

VII. CONCLUSION. 

In summary, the petition for a writ of habeas corpus is 

DENIED as to petitioner's Giglio, intentional discrimination, and 

Ake claims because those claims are successive and do not fall 

within the ends of justice exception. The petition for a writ of 

habeas corpus is DENIED as to petitioner's Mooney, Caldwell and 
  

Batson claims because they are without merit. Petitioner's 

motion for discovery is DENIED and his motion to exceed page 
4 ; 

limits is GRANTED. The petition for a writ of habeas corpus is 

GRANTED as to petitioner's Massiah claim unless the state shall 

re-try him within 120 days , the receipt of this order. 

  

SO ORDERED, this Z 2a of re iry 1987. 

72 bY 
OWEN FORRESTER 

TED STATES DISTRICT JUDGE 

        

   
: 4 - i ae LE bg i ., — 

AY ee H 13? _ J 
. Ai 1,3 Ta Had A 

nT OA 1 :; 
IRS I Ss . 

Int. ile 

-38- 

  

 



  

FOOTNOTES 
  

A Petitioner was also convicted on two counts of armed robbery 
and sentenced to two consecutive life sentences. 

4 Another distinct ground for finding excusable neglect is a 
showing that the petitioner did not realize that the facts of 

i which he had knowledge could constitute a basis for which federal 
HE habeas corpus relief could be granted. Booker v. Wainwright, 764 

F.2d 1371, 1376 (11th Cir. 1985). Although "[t]he exact scope of 
this alternative exception to the abuse of writ doctrine ‘lacks 
adequate definition," id., it would appear from the cases that it 
applies only when the petitioner appeared pro se in presenting 
the first habeas petition. See, e.g., Haley v. Estelle, 632 F.2d 
1273, 1276 (3th Cir. 1980). 

  

CE
 

hd
 

  

  

3 "... [W]e hold that the Baldus study does not demonstrate a 
constitutionally significant riskX of racial bias affecting the 
Georgia capital-sentencing process." (Powell, J., for the 

ho majority). McCleskey v. Kemp, v.Ss. - -,-107.8.,Ct. 1759 at 
- 1778 (1987). 

4 See the discussion” of McCleskey's Massiah claim infra. 

» References to the transcripts of the July 8, July 9, and 
August 10, 1987 hearings will be to "I -TR.," "11.Pr.," and "111 

Tr.," respectively. 

6 Dissenting Justice White, joined by Clark and Harland, JJ., 
protested the new "constitutional rule ... barring the use of 
evidence which is relevant, reliable and highly probative of the 
issue which the trial court has before it." 377 U.S. at 208. The 
dissenters were "unable to see how this case presents an un- 
constitutional interference with Massiah's right to counsel. 
Massiah was not prevented from consulting with counsel as often 
as he wished. No meetings with counsel were disturbed or spied 
upon. Preparation for trial was in no way obstructed. It is 
only a sterile syllogism -- an unsound one, besides -- to say 
that because Massiah had a right .to counsel's aid hefore and 
during the trial, his out-of-court conversations and admissions 
must be excluded if obtained without counsel's consent or 
presence." Id. at 209. 2 ioe       

| 

 



  

’ 
* 
» 

AOT2A © 
(Rev. 8/82)     

The dissenters highlighted the incongruity of overturning 

Massiah's conviction on these facts. "Had there been no prior 

arrangements between [the confederate] and the police, had [the 

confederate] simply gone to the police after the conversation had 

occurred, his testimony relating Massiah's statements would be 

readily admissible at the trial, as would a recording which he 

might have made of the conversation. In such event, it would 

simply be said that Massiah risked talking to a friend who 

decided to disclose what he knew of Massiah's criminal activi- 

ties. But if, as occurred here, [the confederate] had been 

cooperating with the police prior to his meeting with Massiah, 

both his evidence and the recorded conversation are somehow 

transformed into inadmissible evidence despite the fact that the 

hazard to Massiah remains precisely the same -- the defection of 

a confederate in crime." Id. at 211. 

7 Justice Rehnquist, dissenting, gquesticned the validity of 

Massiah: "The exclusion of respondent's statements has no 

relationship whatsoever to the reliability of the evidence, and 

it rests on a prophylactic application of the Sixth Amendment 

right to counsel that in my view entirely ignores the doctrinal 

foundation of that right." 447 U.S. at 289. Echoing many of the 

concerns expressed by Justice White in Massiah, id. at 290, 

Justice Rehnquist argued that "there is no constitutional or 

historical support for concluding that an accused has a right to 

have his attorney serve as a sort of guru who must be present 

whenever an accused has an inclination to reveal incriminating 

information to anyone who acts to elicit such information at the 

behest of the prosecution." Id. at 295-96. Admitting that the 

informants in Henry and in Massiah were encouraged to elicit 

information from the respective defendants, Justice Rehnquist 

"doubt[ed] that most people would find this type of elicitation 
reprehensible.™ Id. at 297. 

For criticism of Henry for extending Massiah "despite that 

decision's doctrinal emptiness" and for giving Massiah "a firmer 

place in the law than it deserves," see Salzburg, Forward: The 

Flow and Ebb of Constitutional Criminal Prccedure in the Warren 

and Burger Courts, 69 Geo.L.J. 151, 206-08 (.980). 

  

  

  

8 There is some question whether Ben Wright's testimony on the 

fact of the murder would have been admissible at all absent 
corroboration by Evans' testimony. See 0.C.G.A. §24-4-8 (un- 
corroborated testimony of an accomplice not sufficient to 

establish a fact). But see McCleskey v. Kemp, 753 F.2d at 885 

(Wright's testimony corroborated by McCleskey's admitted par- 

ticipation in the robbery; corroboration need not extend to every 

material detail). 

  

ii : :: 

  

 



  i 
N
G
 
E
N
S
 

Ty 
SK 
T
n
I
 

a 
N
A
 

ih
 

  

AO 72A © 

{Rev. 8/82)     

Go ( . GF | 5 

9 Here, as in Massiah and Henry, the evidence™1s excluded and 
the conviction consequently reversed despite the fact that the 
evidence is "relevant, reliable and highly probative" of. peti- 
tioner's guilt. Massiah, 377 U.S. at 208 (White, J., dis- 
senting). There is no question that petitioner's incriminating 
statements to Evans were mace voluntarily and without coercion. 
Had Evans been merely a good listener who first obtained 
McCleskey's confession and then approached the authorities, 
Evans' testimony would have been admissible. The substance of 
the evidence would have been no different, McCleskey's risk in 
speaking would have been no different, and McCleskey's counsel 
would have been no less absent, but the evidence would have been 

admissible simply because the state did not intentionally seek to 
obtain it. While this court has grave doubts about the his- 
torical and rational validity of the Supreme Court's present 
interpretation of the sixth amendment, those doubts have been 
articulated ably in the dissents of Justice White and Justice 
Rehnquist. See supra, notes 4 and 5. Until the Supreme Court 
repudiates its present doctrine this court will be obliged to 
reach the result it reaches today. 

  

iii 

i mn —— ST Rm AT WT {ee a a gn 

 



  

APPENDIX B 
  

 



  

: 
= 3. » 

{ L ; (W 

Shale 9 359 
4% MAL 2 lhl 

i305, Lizfk 

FOR THE NORTHERN DISTRICT OF GEORGIA 
IN THE UNITED STATES DISTRICT COURT BY 

$y 

ATLANTA DIVISION 

WARREN MC CLESKEY, 

Petitioner, : 

CIVIL ACTION NO. 
1:87-CV-1517-J0OF 

VS. 

RALPH M. KEMP, Superintendent, - 
Georgia Diagnostic and 
Classification Center, : 

Respondent. 

ORDER 

This matter is before the court on respondent's motion 

to reopen judgment. Fed. R. Civ. P. 60(b). 

I. FACTS. 

This petition for writ of habeas corpus was filed 

July 7... 1987. With the petition was a motion for stay of 

execution. This court granted the stay of execution verbally 

July 9, 1987, and in a formal order July 10, 1987. A two-day 

hearing was held on the petition for writ of habeas corpus 

July 8 and 9, 1987. The court continued the evidentiary hearing 

until August 10, 1987. On December 23, 1987 the court granted 

in part and denied in part the petition for writ of habeas 

corpus, and judgment was entered the same day. "Respondent 

appealed, and petitioner cross-appealed. The judgment was 

stayed by the court March 9, 1988. The pending motion for 

relief from final judgment based on newly discovered evidence 

was filed May 6, 1988. The court entered an order allowing 

discovery until August 1, 1988 on the two issues of due 

AO T2A © 

(Rev. 8/82)       
 



  

diligence and of the previously unavailable witness, Offie 

Evans' knowledge. 

Respondent seeks to reopen the December 1987 judgment 

based on the present availability of Offie Evans. Evans was a 

witness at petitioner's trial. The evidentiary hearings on the 

petition for writ of habeas corpus revealed that Evans had been 

moved purposely to a cell adjacent to McCleskey's in order to 

elicit information from him. The court found that this was a 

violation of the Massiah doctrine. See Order, December 23, 

1987. Evans did not testify at the evidentiary hearings on the 

habeas corpus. petition. 

Petitioner attempted to locate Mr. Evans during the July 

hearings in order for him to testify. An attorney working with 

petitioner's counsel made repeated phone calls to Offie Evans' 

sister looking for Mr. Evans. He was not able to reach Mr. 

Evans, but did get the address of another sister who he was 

supposedly staying with at the time. The attorney made repeated 

visits to the sister's house in order to try and find Mr. Evans. 

The attorney was told that Mr. Evans came by the residence every 

now and then but was not staying there. Stevenson Affidavit. 

Petitioner also hired an investigator, T. Delaney Bell, to help 

locate Mr. Evans. The investigator visited several addresses of 

both Mr. Evans and relatives, over a four-day period in June 

1987. The investigator contacted family members again on 

July 6, 1987 and was told that they did not know where he was 

staying. Bell Aff. During the July 8th hearing the court noted     AO 72A © 

(Rev. 8/82)   
 



  
AO 72A © 

(Rev. 8/82)     

that the federal marshal had tried to serve Mr. Evans at a 

sister's house but the sister did not know where he was. 

Respondent made no efforts to contact or locate Mr. Evans. 

The respondent sent two letters to petitioner in the 

period between the July and August hearings to notify 

petitioner's counsel of the witnesses he would call in the 

August hearing. Both of those letters referred to the 

respondent's intent to re-call witnesses who had previously 

testified in the July hearings, but neither mentioned any 

desire or intention to call Mr. Evans as a witness. In April 

1988, counsel for respondent learned that Mr. Evans was in the 

Fulton County Jail on other charges. Respondent now seeks to 

set aside the judgment in order to take the testimony of Offie 

Evans. 

II. CONCLUSIONS OF LAW. 

Petitioner has moved this court to expand the record to 

include: discovery conducted pursuant to the court's order of 

June 17, 1988; Affidavits of Stevenson, Bell and Hashimi; Docket 

Sheet, United States v. Offie Gene Evans, No. 28027; Sentence, 
  

Fulton Superior State Court v. Offie Evans, No. A-16523 (May 15, 
  

1973); and a newspaper clipping, Atlanta Constitution, 
  

December 24, 1987. Petitioner's two motions are unopposed, and 

for good cause shown petitioner's motion to expand the record, 

and second motion to expand the record are GRANTED. 

  

 



  

Rule 60(b)1 defines the circumstances under which a 

party may obtain relief from a final judgment. It should be 

construed in order to do substantial justice, but this does not 

mean that final judgment should be lightly reopened. The 

desirability for order and predictability in the judicial 

process speaks for caution in the reopening of judgments. 

Griffin v. Swim-Tech Corp., 722 F.2d 677 (11th Cir. 1984). The 
  

provisions of this rule must ‘be carefully interpreted to 

preserve the delicate balance between the sanctity of final 

judgments and the "incessant command of the court's conscience 

that justice be done in light of all the facts." I1d., citing 

Bankers Mortgage Company v. United States, 423 F.2d 73, 77 (5th 
  

Cir.), cert. denied, 399 U.S. 927 (1970) (emphasis in original). 
  

Rule 60(b) motions are directed to the sound discretion of the 

district court. Because a motion for new trial under Rule 60(b) 

is an extraordinary motion, the requirements of the rule must be 

strictly met. Seutieri v. Paige, 808 F.2d 785 (11th Cir. 1987). 
  

A. Rule 60(b)(2). 
  

  

i Respondent's motion is based on Rule 60(b)(2) and (6). 
The rule says, 

On motion and upon such terms as are just, the 
court may relieve a party or a party's legal 
representative from a final judgment, order, or 

proceeding for the following reasons; ... (2) 

newly discovered evidence which by due 
diligence could not have been discovered in time 
to move for a new trial under Rule 59(b); ... 
(6) any other reason justifying relief from the 

operation of the judgment. 

4     AOT72A © 

(Rev. 8/82)   
 



  AO72A © 
(Rev. 8/82)     

In order to succeed under 60(b)(2), a party must 

satisfy a five-part test: 1) the evidence must be newly 

discovered since the trial; 2) due diligence on the part of the 

movant to discover the new evidence must be shown; 3) the 

evidence must not be merely cumulative or impeaching; 4) the 

evidence must be material; and 5) the evidence must be such that 

a new trial would probably produce a new result. Seutieri, 808 
  

F.2d at 793; see also, Taylor v. Texgas Corp., 831 F.2d 255 
  

{11th Cir. 1987). 

1. Newly Discovered. 

Offie Evans' identity has been known to the state since 

the initial trial. The respondent contends this is newly 

discovered evidence because Evans has not been able to testify 

about the question which became crucial in this petition for 

habeas corpus; that is, the relationship between himself and the 

police, and whether he was directed by the authorities to elicit 

incriminating statements from McCleskey. Evans has given 

evidence at least three times in this case, in the original 

trial, the state habeas proceeding, and in his statement given 

in August 1978. Moreover, petitioner points out that in October 

1981, Mr. Evans gave a deposition in the case of McCleskey's co- 

defendant, Bernard Depree. That deposition was filed in a 

federal habeas petition on behalf of Depree, in which the state 

was represented by respondent's present counsel. Petitioner 

contends that this deposition includes testimony about his 

contacts with the Atlanta Police while in the Fulton County Jail    



  

in 1978, and denials that he made police contacts until after he 

had spoken with Mr. McCleskey. Petitioner points out that the 

testimony in that deposition is contradictory to the testimony 

given in the deposition taken pursuant to this motion, but that 

the essentials are the same. 

In light of the above discussion, it is apparent that 

Evans' testimony is not truly newly discovered but rather is 

merely newly produced. See, Johnson Waste Materials v. Marshal, 
  

611 F.2d 593 (5th Cir. 1980) (checks and records which had been 

misplaced at time of trial were not newly discovered evidence 

sufficient to support 60(b)(2) motion). The fact that the 

essential substance of this testimony was in a previous 

deposition filed in the public records and known to respondent's 

counsel also indicates it is not newly discovered. Seutieri, 
  

808 F.2d at 794 (evidence contained in public records at time of 

trial cannot be considered newly discovered evidence); Taylor, 

831 F.2d at 255 (evidence cannot be newly discovered if in 

possession of moving party or his attorney prior to entry of 

judgment). Where the movant was aware of a witness's identity 

and knowledge of the transaction, and chose not to track him 

down because of the expense, the evidence is not newly 

discovered because he was aware of the existence of the evidence 

before the trial. Parrilla-Lopez v. United States, 841 F.2d 16 
  

{1st Cir. 1988). Similarly, in this case, the government was   
aware of the witness's existence, identity and relationship to 

the transaction but did not attempt to have him testify at 

AO72A © 

(Rev. 8/82)     
 



  AOT2A © 
(Rev. 8/82) 

  

    

trial. It is evident that Offie Evans' testimony is not truly 

newly discovered under the relevant authority. 

2. Due Diligence. 

In the June 17, 1988 order, the court noted that 

Respondent's "due diligence is measured by what the respondent 

knew at the time. That would include what the respondent knew 

about petitioner's efforts to locate Offie Evans. That is not 

necessarily the sum total of his knowledge nor do the 

petitioner's efforts to locate Evans relieve him of any 

obligation to utilize resources available to him." 

Respondent contends that though he did not make any 

efforts to track down Offie Evans during the summer of 1987, it 

was apparent from the activities of the petitioner that such 

actions would be futile. 2 Petitioner points out that the 

Atlanta Bureau of Police Services has enjoyed a special 

relationship with Mr. Evans over the years, and that if the 

department had been looking for him, Mr. Evans might have made 

himself available or with those larger resources could have been 

found. Petitioner especially points to the testimony of 

Assistant District Attorney Russ Parker that he had no 

information or leads as to Evans' location, but that he "could 

probably find him. [I have] spent enough time with him.” > Tr. 

174. 

  

2 1t appears that respondent's knowledge of petitioner's 

efforts to locate Evans came only from petitioner's counsel's 

statements at the evidentiary hearings. 

7 

  

  

 



  AOT2A © 

(Rev. 8/82) 

  

    

Discovery pursuant to this motion reveals that 

respondent made no efforts to locate Evans during the summer of 

1987. See, Respondent's Answer to First Interrogatories of 

Petitioner, No. 1. Respondent now contends that the deposition 

of Evans shows hat he was outside of Atlanta, and respondent 

would not have been able to locate him anyway. However, the 

affidavits of petitioner's assistants show that Evans' relatives 

had oun him at various times during petitioner's search for 

him. Therefore, it is unclear where exactly Mr. Evans was at 

the time and whether or not he could have been found. Moreover, 

it is not good enough merely to say that it would be impossible 

to find the evidence. Due diligence is measured by respondent's 

knowledge and actions. The standard under 60(b)(2) is that the 

movant exercise due diligence in order to find the relevant 

evidence before entry of judgment. Respondent relied on 

petitioner's actions in seeking Mr. Evans, but made no efforts 

of his own. As the court previously noted, petitioner's efforts 

did not relieve respondent of any obligation to utilize his own 

resources to locate Evans. Movant has not demonstrated the due 

diligence prong of the 60(b)(2) standard. 

3. Evidence is Not Cumulative or Impeaching:; 

Materiality. 

Evans' deposition testimony essentially asserts that he 

was not moved intentionally to be placed next to McCleskey, and 

in fact was not moved at all, and was not an informant. His 

testimony goes directly to the issue involved, and therefore is 

  

 



  AOT2A © 

(Rev. 8/82) 

  

    

material. However, there are numerous internal contradictions 

within the deposition, and contradictions with Evans' previous 

statements, or the statements of other witnesses. Also, it is 

clear that Mr. Evans has his own motives for denying his status 

as an informant. He expressed concern several times during his 

deposition about newspaper accounts which had labeled him an 

informant, because that kind of information could get a man 

killed. Evans Depo., Pp. 25, 

4. Likelihood of Producing a Different Result. 

It is unlikely Evans' testimony would produce a 

different result. The credibility or believability problems 

with his testimony are evident. He has a strong motivation for 

saying he was not an ‘informant, not only because of 

recriminations from his associates, but also in order to stay in 

favor with the police and prosecutors who have used him to 

testify in the past. The numerous contradictions within his 

deposition also lead the court to the conclusion that his 

testimony would not be believable. See Petitioner's Brief in 

Response to Respondent's Supplement to Rule 60(b) Motion. In 

finding a Massiah violation, the court relied on the testimony 

of Officer Ulysses Worthy that someone requested his permission 

to move Evans to be near McCleskey, Order, December 23, 1087, 

p. 18, even in the face of other law enforcement personnel who 

denied requesting that Evans be moved or having any knowledge of 

such a request. Order, p. 19. The court relied on Worthy's 

testimony and noted that "[t]lhe lack of corroboration by other 

  

 



  AO72A © 

(Rev. 8/82)     

witnesses is not surprising; the other witnesses, like Assistant 

District Attorney Parker, had no reason to know of a request to 

move Evans or, like Detective Dorsey, had an obvious interest in 

concealing any such arrangement. Worthy, by contrast, had no 

apparent interest or bias that would explain any conscious 

deception." Order, p. 22. Therefore, Evans' testimony is not 

likely to change the credibility of Worthy's testimony or the 

fact that petitioner showed by a preponderance of the evidence 

that a Massiah violation occurred. 

Therefore, for the above reasons, respondent's motion 

under 60(b)(2) is DENIED. 

B. Rule 60(b)(6). 
  

Rule 60(b)(6) grants federal courts broad authority to 

relieve a party from a final judgment "upon such terms as are 

just" provided the motion is made within a reasonable time and 

is not premised on one of the grounds in (b)(1) through (b)(5). 

Liljeberg v. Health Services Acquisition Corp., U.S. , D6 
  

U.S.L.W. 4637, 4642 (1988). This ground should be applied only 

in exceptional circumstances. Id. The party seeking relief 

under 60(b)(6) has the burden of sting that absent such 

relief, an extreme and unexpected hardship will result. 

Criffin, 722  F.24 at 680. Respondent contends that .in the- 

unusual circumstances of this case, it would serve the ends of 

justice to reopen judgment under 60(b)(6). However, respondent 

has shown no exceptional circumstances outside those discussed 

in the Rule 60(b)(2) motion. There is little likelihood that if 

10 

  

 



  AOT2A © 

(Rev. 8/82) 

  

    

this motion is denied an extreme hardship will result to 

respondent. Therefore, respondent's motion under Rule 60(b)(6) 

is DENIED. 

III. CONCLUSION. 

In sum, petitioner's two motions to expand record are 

Respondent's motion for relief from final judgment is GRANTED. 

DENIED. 

SO ORDERED this é ~ day of Whitin rey , 1989. 
/ 

. OWEN FORRESTER 
f wre STATES DISTRICT JUDGE 

  

  

ll 

  

 



  

APPENDIX Cc 
  

 



  

342 

jury’s recommendation of life imprisonment 

when balanced against the several aggra- 

~ vating factors. The supreme court deter- 

mined that the jury was made aware of the 

victim's reputation for violence, Lusk II, 

498 So0.2d at 905, and that the jury’s recom- 

mendation “was not based on any valid 

mitigating factor discernible from the 

record.” Lusk I 446 So.2d at 1043. That 

court further determined from a review of 

the record that the trial judge “did not 

ignore evidence presented by Lusk in miti- 

gation,” but found it “clear that the trial 

judge did not believe that said evidence in 

its totality rose to the level of mitigation in 

Lusk’s case.” Id. The state supreme 

court thus held that the dictates of Tedder 

had been satisfied. 

The state trial court acknowledged that 

it considered the mitigating evidence of- 

fered by Lusk in his trial, as did the Su- 

preme Court of Florida. This court may 

examine the application of Florida's jury 

override scheme, Parker v. Dugger, 816 

F.2d 1470, 1474 (11th Cir.1989), but we may 

not second-guess the state courts regard- 

ing whether the trial court “complied with 

the mandates of Tedder.” Id. at 1475. It 

is not our function to decide whether we 

agree with the advisory jury or with the 

trial judge and the Supreme Court of Flor- 

ida. Our review, rather, is limited to ascer- 

taining whether the result of the override 

scheme is arbitrary or discriminatory. 

Spaziano v. Florida, 468 U.S. 447, 465, 104 
S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984). 

Lusk contends that we should grant only 

limited deference to state override proceed- 

ings. On the contrary, to the extent that 

those proceedings do not produce an arbi- 

trary or discriminatory result, the Constitu- 
tion is not violated, and we will not second- 

guess the state courts on a matter of state 

law. The state courts concluded that there 

were no reasonable bases for the jury's 

recommendation despite the fact that bath 

the jury as advisor and the judge as sen- 
tencer were made aware of mitigating 

9. These claims are: (1) that Lusk’s death sen- 

tence violated the Eighth Amendment because it 

was based on the unconstitutionally vague statu- 

tory aggravating circumstance that the murder 
was “especially heinous, atrocious or cruel,” (2) 

that the Florida death penalty statute improper- 

ly shifted the burden of proof to the defendant 

to show that mitigating circumstances out- 
weighed aggravating circumstances; (3) that 

890 FEDERAL REPORTER, 2d SERIES 

factors. On the facts of this case, we do 

not find that the result of the application of 

Tedder was arbitrary or irrational. 

IV. Conclusion 

Because it granted relief as to the sen- 

tence on the basis of the jury override, the 

district court did not address other claims 

asserted by Lusk which challenge his sen- 

tence.! While we could address those 

claims, see Lindsey v. Smith, 820 F.2d 

1137 (11th Cir.1987), we conclude that a 

proper exercise of our discretion in this 

case, given the nature of the claims and the 

issues presented, is to remand them to the 

district court so that the district court may 

address them in the first instance. The 

judgment of the district court is RE- 

VERSED to the extent that it grants relief 

on the jury override issue and AFFIRMED 

on all other issues. The case is REMAND- 

ED to the district court for consideration of 

the claims that court has not yet addressed. 

Warren McCLESKEY, 

Petitioner-Appellee, 

Vv. 

Walter ZANT, Superintendent, Georgia 

Diagnostic and Classification Center, 

Respondent-Appellant. 

Nos. 88-8085, 89-8085. 

United States Court of Appeals, 

Eleventh Circuit. 

Nov. 22, 1989. 

As Amended Dec. 13, 1989. 

After defendant's convictions and sen- 

tences for murder and two counts of armed 

Lusk was denied due process because counsel 

failed to review the prescntence report with him 

prior to sentencing and because the trial: court 

failed to ascertain whether Lusk had reviewed 

the report; and (4) that Lusk’'s Eighth Amend- 

ment rights were violated because the state trial 

judge believed that he was barred from consid- 

ering notions of mercy in his sentencing deci- 

sion. 

 



  

McCLESKEY v. ZANT 343 
Cite as 890 F.2d 342 (11th Cir. 1989) 

robbery were affirmed by the Georgia Su- 

preme Court, 245 Ga. 108, 263 S.E.2d 146, 

defendant petitioned for habeas corpus re- 

lief. The United States District Court for 

the Northern District of Georgia, Nos. 87- 

CV-1517, 1:87-CV-1517-JOF, J. Owen For- 

rester, J., granted relief, 580 F.Supp. 338, 

and appeal was taken. The Court of Ap 

peals, 753 F.2d 877, reversed. After the 

United States Supreme Court, 481 U.S. 279, 

107 S.Ct. 1756, 95 L.Ed.2d 262, affirmed, 

defendant filed second habeas petition. 

The District Court granted relief, and State 
appealed. The Court of Appeals, Kravitch, 
Circuit Judge, held that: (1) petitioner 
abused writ by deliberately abandoning his 

Sixth Amendment Massiak claim, and (2) 

any error based on alleged Massiah viola- 

tion was harmless. 

Reversed. 

1. Habeas Corpus ¢=898(1) 

Under doctrine of “abuse of writ,” fed- 

eral court may decline to entertain second 

or subsequent habeas corpus petition that 

raises claim that petitioner did not raise in 

prior petition. 28 U.S.C.A. § 2244(b); 
Rules Governing § 2254 Cases, Rule 9(b), 

28 US.C.A. foll. § 2254. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

2. Habeas Corpus ¢=897, 898(1) 

“Successive petition” is one that raises 

claim already adjudicated through prior ha- 

beas petition, while petition that raises 

grounds for relief not raised in prior peti- 

tion is analyzed as “abuse of the writ.” 28 

US.C.A. § 2244(b); Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 
§ 2254. 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

3. Habeas Corpus ¢=899 

State has burden of pleading that ha- 

beas petitioner has abused the writ. Rules 
Governing § 2254 Cases, Rule 9(b), 28 U.S. 
C.A. foll. § 2254. 

4. Habeas Corpus ¢=898(2) 

Once state has alleged abuse of the 

writ, habeas petitioner must be afforded 

opportunity to justify his or her previous 

failure to raise claim. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 

§ 2254. 

5. Habeas Corpus &=899 

If court determines that habeas peti- 

tioner has failed to carry burden of disprov- 

ing abuse of the writ, it may dismiss peti- 

tion unless ends of justice demand that 

court reach merits. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 
§ 2254. 

6. Habeas Corpus ¢=899 

Whether second or subsequent habeas 

petition is to be dismissed on abuse of the 

writ grounds is left to sound discretion of 

district court; discretion in such matters is 

not unfettered, however, and its sound ex- 

ercise will rarely permit district court to 

hear petition that clearly constitutes abuse 

of the writ. Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

7. Habeas Corpus &=898(3) 

Habeas petitioner abused writ by delib- 

erately abandoning his Sixth Amendment 

Massiah claim. when he raised claim in ini- 

tia] state habeas petition, then failed to 

raise claim in his first federal habeas peti- 

tion, although defendant was unaware of 

evidence supporting claim until he filed sec- 

ond federal habeas petition; counsel had 

some factual basis for raising claim in state 

habeas petition, and failed to raise claim in 
first federal petition after initial investiga- 

tory efforts proved unsuccessful. 28 U.S. 
C.A. § 2244(b); Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254; 

U.S.C.A. Const. Amend. 6. 

8. Habeas Corpus ¢=898(3) 

Abandoning claim after initial investi 

gatory efforts prove unsuccessful cannot 

insulate habeas petitioner from abuse of 

the writ. 28 U.S.C.A. § 2244(b); Rules 

Governing § 2254 Cases, Rule 9(b), 28 U.S. 

C.A. foll. § 2254. 

 



  

344 

9. Habeas Corpus $=898(3) 

Habeas petitioner and his or her coun- 

sel may not circumvent abuse of the writ 

doctrine by failing to follow through with 

investigation and then later claiming that 

claim could not have succeeded earlier on 
facts as then known. 28 US.C.A. 
§ 2244(b); Rules Governing § 2254 Cases, 
Rule 9(b), 28 U.S.C.A. foll. § 2254. 

10. Criminal Law €=394.1(2) 
Remedy for Massiah violation is not 

automatic reversal of conviction, but rather 

exclusion of evidence tainted by violation of 

defendant's right to counsel. U.S.C.A. 
Const.Amend. 6. 

11. Habeas Corpus &490(3) 

Any error based on alleged Massiah 

violation, occurring when inmate testified 

in murder prosecution that defendant made 

- “jailhouse confession” in which he admitted 

that he shot police officer during robbery, 

was harmless, in view of other evidence 

indicating defendant’s guilt, including 

statements of codefendant, and defendant’s 

confession to his participation in robbery. 
U.S.C.A. Const.Amend. 6. 

Mary Beth Westmoreland, Asst. Atty. 

Gen., Susan V. Boleyn, William B. Hill, 

Atlanta, Ga., for respondent-appellant. 

Robert H. Stroup, Atlanta, Ga., Julius L. 

Chambers, NAACP Legal Defense Fund, 

James M. Nabrit, II, John Charles Boger, 

New York City, for petitioner-appellee. 

Appeals from the United States District 

Court for the Northern District of Georgia. 

Before KRAVITCH and 

EDMONDSON, Circuit Judges, and 

RONEY, Senior Circuit Judge. 

KRAVITCH, Circuit Judge: 

This is a consolidated appeal by the State 

of Georgia from the district court’s grant 

of Warren McCleskey’s second petition for 

a writ of habeas corpus and from the dis- 

trict court’s denial of the State’s motion 

1. The statement of facts is taken from the Geor- 
gia Supreme Court's opinion on direct appeal, 

890 FEDERAL REPORTER, 2d SERIES 

under Fed.R.Civ.P. 60(b) for relief from the 
judgment. The district court granted the 

writ solely on the basis of McCleskey’s 
claim that his sixth amendment rights had 
been violated under Massiah v. United 

States, 377 U.S. 201, 84 S.Ct. 1199, 12 

L.Ed.2d 246 (1964). Because we find that 

the district court abused its discretion in 

failing to dismiss McCleskey’s Massiah al- 

legation as an abuse of the writ, we re 

verse the district court without reaching 

the merits of McCleskey’'s Massiah claim or 

of the State’s Rule 60(b) motion. 

I. FACTS! 

McCleskey was arrested and charged 
with the murder of a police officer during 
an armed robbery of the Dixie Furniture 

Store. The store was robbed by four men. 
Three entered through the back door and 

one through the front. Each of the four 

men was armed. McCleskey had a .38 cali- 

ber Rossi white-handled, nickel-plated pis- 
tol, Ben Wright had a sawed-off shotgun, 
and the other two had blue steel pistols. 

The man who entered through the front 
secured the store, forcing the employees to 

lie on the floor. The others rounded up the 

employees in the rear and began to tie 
them up with tape. The manager was 

forced at gunpoint to turn over the store 

receipts, his watch, and six dollars. Re- 

sponding to a silent alarm, a police officer 

entered the store by the front door. He 

proceeded approximately fifteen feet down 

the center aisle. Two shots were fired. 

One shot struck the police officer in the 

head causing his death. The other shot 

glanced off a pocket lighter in the officer's 
pocket and lodged in a sofa. That bullet 
was recovered. The robbers fled. Some- 

time later, McCleskey was arrested in con- 

nection with another armed robbery. 

McCleskey.was identified by two of the 

store personnel as the robber who came in 

the front door. Shortly after his arrest, 

McCleskey confessed to participating in the 

robbery, but maintained that he was not 

the triggerman. One of his accomplices, 

Ben Wright, testified that McCleskey ad- 

McCleskey v. The State, 245 Ga. 108, 263 S.E.2d 
146 (1980). 

 



  

McCLESKEY v. ZANT 345 
Clte as 890 F.2d 342 (11th Cir. 1989) 

mitted to shooting the officer. Offie Ev- 

ans, a jail inmate housed near McCleskey 

testified that McCleskey made a ‘jail house 

confession” in which he claimed he was the 

triggerman. The police officer was killed 

by a bullet fired from a .38 caliber Rossi 

handgun. Though the weapon was not re- 

covered, McCleskey had stolen a .38 caliber 

Rossi in a holdup of a Red Dot grocery 

store two months earlier. 

II. PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder 

and two counts of armed robbery. It sen- 

tenced McCleskey to death for the murder 

of the police officer and to consecutive life 

sentences for the two robbery counts. In 

1980, these convictions and sentences were 

affirmed by the Georgia Supreme Court, 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 

146, cert. denied, 449 U.S. 891, 101 S.Ct. 

253, 66 L.Ed.2d 119 (1980). In January of 

1981, McCleskey petitioned for habeas cor- 

pus relief in the Superior Court of Butts 
County, asserting over twenty challenges 

to his conviction and sentence. In an 

amendment to his petition, McCleskey al- 

leged a Massiah violation, claiming that the 

introduction into evidence of statements he 

made to an informer violated his rights 

under the sixth amendment. See Massiah 

v. United States, 377 U.S. 201, 84 S.Ct. 

1199. The petition was denied after an 

evidentiary hearing and the Georgia Su- 

preme Court denied McCleskey’s applica- 
tion for a certificate of probable cause to 
appeal. The United States Supreme Court 

denied McCleskey’s petition for certiorari. 
McCleskey v. Zant, 454 U.S. 1093, 102 S.Ct. 

659, 70 L.Ed.2d 631 (1981). 

McCleskey filed his first federal habeas 

petition in district court in December of 

1981, asserting eighteen grounds for grant- 

ing the writ. That petition did not include 
a claim under Massiah. It did, however, 

include a claim under Giglio v. United 

States, 405 U.S. 150, 92 S.Ct. 763, 31 

L.Ed.2d 104 (1972), alleging that the state 

prosecutor had failed to reveal that Offie 

Evans, one of its witnesses, had been prom- 

ised favorable treatment as a reward for 

his testimony. In 1984, the district court 

granted habeas corpus relief as to McCles- 

key's Giglio claim. It ordered that his 

conviction and sentence for malice murder 

be set aside, but affirmed his convictions 

and sentences for armed robbery. McCles- 

key v. Zant, 580 F.Supp. 338 (N.D.Ga. 
1984). 

Both parties appealed and in 1985, the 
Eleventh Circuit, sitting en banc, reversed 

the district court’s grant of the writ on the 

Giglio claim and affirmed on all claims 

denied by the district court. McCleskey v. 
Kemp, 753 F.2d 877 (11th Cir.1985) (en 
banc). McCleskey then filed a petition for 
a writ of certiorari in the Supreme Court of 
the United States. The Supreme Court 
granted certiorari limited to consideration 
of the application of the Georgia death 

penalty and affirmed the Eleventh Circuit. 
McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 
1756, 95 L.Ed.2d 262, petition for rehear- 

ing denied, 482 U.S. 920, 107 S.Ct. 3199, 96 

L.Ed.2d 686 (1987). 

McCleskey filed a subsequent petition 

for a writ of habeas corpus in state court in 
June of 1987. In an amendment to that 
petition, McCleskey once again raised a 
Massiah claim, alleging that newly discov- 

ered evidence demonstrated that a jail in- 

mate of McCleskey’s was acting on behalf 

of the State as an informant. The state 

court granted the State's motion to dismiss 
and the Georgia Supreme Court denied 
McCleskey’s application for a certificate of 
probable cause. 

McCleskey filed the present petition for a 

writ of habeas corpus in federal district 

court in July of 1987. After evidentiary 

hearings on the petition in July and August 

of 1987, the district court entered an order 
granting habeas corpus relief only as to 

McCleskey's “murder conviction and sen- 

tence based upon the finding of a Massiak 

violation. McCleskey v. Kemp, No. C87- 
1517A (N.D.Ga. Dec. 23, 1987). 

The State now appeals the district court’s 

grant of the writ, claiming that the district 

‘court abused its discretion in failing to 
dismiss McCleskey’s Massiak allegation as 

an abuse of the writ and that the district 

FREE E=-T WE W—— 

 



  

346 

court erred in finding a violation of Massi- 
ah? 

[II. ABUSE OF THE WRIT 

A. Background 

[1] Under the doctrine of “abuse of the 
writ,” a federal court may decline to enter- 
tain a second or subsequent habeas corpus 
petition that raises a claim that the peti- 
tioner did not raise in a prior petition. The 
doctrine is grounded in the court's eq- 
uitable power to decline to entertain a ha- 

beas corpus petition properly within its jur- 
isdiction when “a suitor’s conduct in rela- 
tion to the matter at hand ... disentitle[s] 
him to the relief he seeks.” Sanders v. 
United States, 373 US. 1, 17, 83 S.Ct. 
1068, 1078, 10 L.Ed.2d 148 (1963) (quoting 
Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 
822, 849, 9 L.Ed.2d 837 (1963)). 

[2] The statutory basis for the doctrine 

of abuse of the writ in cases of successive 
petitions for habeas corpus can be found at 
28 U.S.C. § 2244(b)* and Rule 9(b) of the 
Rules Governing Section 2254 Cases in the 
United States District Courts. These pro- 
visions address the problem of prisoners 
filing the same claims in successive peti- 
tions as well as the problem of prisoners 
who abuse the writ by filing their claims 
piecemeal. A “successive petition” is one 
that raises a claim already adjudicated 
through a prior petition, while a petition 
that raises grounds for relief not raised in 

2. This court stayed the briefing schedule of the 
appeal pending the State's filing in district court 
of a motion under Fed.R.Civ.P. 60(b) for relief 
from the judgment based on the availability of 
witness Offie Evans. The district court denied 
the motion and this court granted the State's 
motion to consolidate the State's original appeal 
and its appeal from the denial of the motion for 
relief from the judgment. 

3. 28 U.S.C. § 2244(b) states as follows: 

When after an evidentiary hearing on the 
merits of a material factual issue, or after a 
hearing on the merits of an issue of law, a 
person in custody pursuant to the judgment of 
a State court has been denied by a court of 
the United States or a justice or judge of the 
United States release from custody or other 
remedy on an application for a writ of habeas 
corpus, a subsequent application for a writ of 

890 FEDERAL REPORTER, 2d SERIES 

the prior petition is analyzed as an “abuse 
of the writ.” See Gunn v. Newsome, 881 
F.2d 949, 955 n. 6 (11th Cir1989) (en banc) 
(plurality opinion), petition for cert. filed, 
No. 83-611, 1989 WL 129621 (Oct. 16, 
1989). 

A federal court’s decision to exercise its 

equitable power to dismiss a petition is 

based on different considerations in the 
two types of cases. In cases of successive 
petitions, equity usually will not permit a 
petitioner to reassert a claim resolved 
against him “in the hope of getting before 
a different judge in multijudge courts.” 
See Sec. 2254 Cases R. 9 advisory commit- 
tee’s note. In cases of abuse of the writ, 
equity counsels against allowing “needless 
piecemeal litigation” or “collateral proceed- 

ings whose only purpose is to vex, harass, 

or delay.” Sanders, 373 US. at 18, 83 

S.Ct. at 1078. In both instances, the need 

for finality in criminal law counsels strong- 
ly against courts repeatedly reviewing 
criminal convictions. See Kuhlmann ov. 
Wilson, 477 U.S. 436, 452-53, 106 S.Ct. 
2616, 2626-27, 91 L.Ed.2d 364 (1986) (plu- 
rality opinion). 

" [3] The state has the burden of plead- 

ing that the habeas petitioner has abused 

the writ. Price v. Johnston, 334 U.S. 266, 

291-92, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 

(1948). This circuit has held that “t]he 

state carries its burden by recounting the 

petitioner’s writ history, identifying the 

claims not raised before the instant petition 

habeas corpus in behalf of such person need 
not be entertained by a court of the United 
States or a justice or judge of the United 
States unless the application alleges and is 
predicated on a factual or other ground not 
adjudicated on the hearing of the earlier ap- 
plication for the writ, and unless the court, 
justice, or judge is satisfied that the applicant 
has not on the earlier application deliberately 
withheld the newly asserted ground or other- 
wise abused the writ. 

4. Rule 9(b) provides as follows: 

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. 

 



  

McCLESKEY v. ZANT 347 
Cite as 890 F.2d 342 (11th Cir. 1989) 

and alleging that the petitioner abused the 

writ in violation of 28 U.S.C. § 2254, Rule 

9(b).” Booker v. Wainwright, 164 F.2d 

1371, 1376 (11th Cir.1985), cert. denied, 474 

U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 

(1985). The State has clearly met its bur- 

den here, as it is evident that McCleskey 

did not assert his Massiak claim in his first 

federal habeas petition. 

[4,5] McCleskey’s previous failure to 

assert the claim does not, however, require 

the federal court to dismiss his petition, for 

the courts have recognized that “not all 

piecemeal litigation is needless.” Booker 

v. Wainwright, id.; see also Haley v. Es- 

telle, 632 F.2d 1273, 1276 (5th Cir.1980).5 

Once the state has alleged abuse of the 

writ, the petitioner must be afforded the 

opportunity to justify his previous failure 

to raise the claim. In deciding whether a 

- petitioner has presented sufficient justifica- 

tion, 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 Wood- 

ard v. Hutchins, 464 U.S. 377, 379, 104 

S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) (per 

curiam) (Powell, J., concurring, joined by 

F.2d 1385, 1391 (11th Cir.1989), petition 

Jor cert. filed, No. 89-5277, 1989 WL 

113448 (Aug. 4, 1989); Witt v. Wain- 

wright, 755 F.2d 1396, 1397 (11th Cir.), 

cert. denied, 470 U.S. 1039, 105 S.Ct. 1415, 

84 L.Ed.2d 801 (1985); Potts v. Zant, 638 

F.2d 727, 740-41 (5th Cir. Unit B 1981), 

cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 

L.Ed.2d 187 (1981). If a court determines 

that the petitioner has failed to carry his 

burden of disproving an abuse of the writ, 

it may dismiss the petition unless the ends 

of justice demand that the court reach the 

merits. Sanders, 373 U.S. at 16-19, 83 

S.Ct. at 1078-79; Demps v. Dugger, 874 
F.2d at 1391; Davis v. Kemp, 829 F.2d 

1522, 1526 (11th Cir.1987), cert. denied, — 

US. —, 108 S.Ct. 1099, 99 L.Ed.2d 262 

(1988). 

S. In Bonner v. City of Prichard, 661 F.2d 1206, 

= 1209 (11th Cir.1981) (en banc), this court 
adopted as binding precedent all decisions of 
the former Fifth Circuit handed down before 
October 1, 1981. 

[6] Whether a second or subsequent pe- 

tition is to be dismissed on abuse of the 

writ grounds is left to the sound discretion 
of the district court. Sanders, 373 U.S. at 

18, 83 S.Ct. at 1079; Darden v. Dugger, 

825 F.2d 287, 294 (11th Cir.1987), cert. de- 
nied, — U.S. —, 108 S.Ct. 1125, 99 

L.Ed.2d 285 (1988); Potts v. Zant, 638 F.2d 
at 741. Yet discretion in such matters is 

not unfettered, and its sound exercise will 

rarely permit a district court to hear a 

petition that clearly constitutes an abuse of 

the writ. See Gunn v. Newsome, 881 F.2d 

at 949. 

In the instant appeal, the district court 

found that McCleskey could not be said to 

have intentionally abandoned his claim. 

We disagree and find that the district court 

abused its discretion in failing to dismiss a 

clearly abusive petition. 

B. Deliberate Abandonment of the Mas- 

stah Claim 

[7] McCleskey asserts that his failure 

to raise a Massiah claim in his earlier fed- 

eral petition is justified because at the time 

four other justices); Demps v. Dugger, 87 i he filed that petition, he lacked the ewvi- 
dence to support such a claim. To demon- 

strate a violation of sixth amendment 

rights under Massiah v. United States, 377. 

U.S. 201, 84 S.Ct. 1199, a defendant must 

show that the prosecution deliberately elic- 

ited incriminating statements from him in 

the absence of his lawyer. Massiah itself 

involved statements made by a defendant 

free on bail to a co-indictee in a car that 

had been wired by the government. In 

United States v. Henry, 447 U.S. 264, 100 

S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Su- 

preme Court applied Massiah to a situation 

in which incriminatory statements were 

made to a cellmate who was a government 
informant. In Kuhlmann v. Wilson, the 

Supreme Court stressed that a defendant 
alleging a Massiah violation “must demon- 

strate that the police and their informant 

6. In Stein v. Reynolds Securities, Inc., 667 F.2d 
33 (11th Cir.1982), this court adopted as binding 
precedent all decisions of Unit B of the former 
Fifth Circuit handed down after September 30, 
1981. 

 



  

348 890 FEDERAL REPORTER, 2d SERIES 

took some action, beyond merely listening, 

that was designed deliberately to elicit in- 

criminating remarks.” 477 U.S. at 459, 106 

S.Ct. at 2630.7 

McCleskey bases his Massiah claim on 

two pieces of evidence. The first is a 21- 

page written statement of Offie Evans, a 

prisoner who was incarcerated in the cell 

next to McCleskey’s when McCleskey was 

in the Fulton County Jail awaiting trial. 

Evans testified against McCleskey at trial, 

relating several incriminating statements 

made by McCleskey. The written state- 

ment, which had been given to the Atlanta 

Police Department in August of 1978, sets 

out these conversations in great detail, 

demonstrating that Evans lied to McCles- 

key in order to get information from him.® 

McCleskey argues that the written state- 

ment shows evidence of an ab initio rela- 

tionship between Evans and the prosecu- 

tion and is thus highly relevant to his Mas- 

"stah claim. 

The second piece of evidence McCleskey 
uses to support his Massiak claim is the 

testimony of Ulysses Worthy who was cap- 
tain of the day watch at the Fulton County 
Jail during the summer of 1978. Worthy 

testified at two separate points during the 

district court hearings on McCleskey’s sec- 

ond habeas petition. Though Worthy’s tes- 

timony was at times confused and contra- 

dictory, the district court credited Worthy's 

assertion that at some point some officer 

involved with the case had asked that Ev- 
ans be moved to a different cell. The dis- 

trict court judge relied heavily on Worthy's 

testimony in holding that McCleskey had 

presented a valid Massiah claim. In fact, 

he found that ‘[t]he lack of corroboration 

by other witnesses is not surprising; the 

other witnesses, like Assistant District At- 

torney Parker, had no reason to know of a 

request to move Evans or, like Detective 

Dorsey, had an obvious interest in conceal- 

7. In Lightbourne v. Dugger, 829 F.2d 1012 (11th 
Cir.1987), cert. denied, — US. —, 109 S.Ct. 
329, 102 L.Ed.2d 346 (1988), this circuit charac- 

terized petitioner's burden in a Massiah/Henry 
claim as one involving two elements: “In order 
to establish a violation of the Sixth Amendment 
in a jailhouse informant case, the accused must 
show (1) that a fellow inmate was a government 

ing any such arrangement. Worthy, by 

contrast, had no apparent interest or biag 

that would explain any conscious decep- 

tion.” McCleskey, No. C87-1517A, slip op. 

at 22. 

McCleskey maintains that he was un- 
aware of both pieces of evidence critical to 

his Massiah claim until well after he filed 

his first federal habeas petition. It is un- 
contested that he did not obtain Evans’ 

statement until July of 1987 and that he did 

not know about the existence of Worthy 
until the time of the hearing on the second 

federal habeas petition. The State strong- 
ly contends that habeas counsel realized or 

should have realized that Evans had made 

a written statement concerning his conver- 

sations with McCleskey and asserts that 
petitioner’s counsel should have made some 
effort to obtain that statement. The dis- 

trict court found, however, that McCleskey 

was not in fact aware of the written state- 

ment, and we cannot say that this determi- 

nation is clearly erroneous. 

Assuming that McCleskey was unaware 

of both pieces of evidence, the question 

before us is whether McCleskey’s unaware- 

ness 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. The district court found 

that it was sufficient, holding that McCles- 

key’s unawareness precluded a finding of 

deliberate abandonment of the claim, de- 

spite the fact that McCleskey had raised it 

in his first state habeas petition. We dis- 
agree. 

In finding that McCleskey did not delib- 

erately abandon his Massiak claim, the dis- 

trict court stated that: 

First petitioner cannot be said to have 

intentionally abandoned this claim. Al- 

though petitioner did raise a Massiah 

claim in his first state petition, that claim 
was dropped because it was obvious that 

agent; and (2) that the inmate deliberately elic- 

ited incriminating statements from the ac- 
cused.” /d at 1020. 

8. For instance, Evans told McCleskey that his 
name was Charles, that he was the uncle of 
codefendant Ben Wright, and that he was sup- 
posed to be a participant in the robbery himself. 

FIRUIG SHY VEE Te 1 WPYPuR 

 



  

McCLESKEY v. ZANT 349 
Cite as 890 F2d 342 (11th Cir. 1989) 

it could not succeed given the then- 

known facts. At the time of his first 

federal petition, petitioner was unaware 

of Evans’ written statement, which, as 

noted above, contains strong indications 

of an ab initio relationship between Ev- 
ans and the authorities. Abandoning a 

claim whose supporting facts only later 

become evident is not an abandonment 
that “for strategic, tactical, or any other 
reasons ... can be described as the delib- 

erate by-passing of state procedures.” 

... Petitioner's Massiakh claim is there 
fore not an abuse of the writ on which no 

evidence should have been taken. This is 
not a case where petitioner has reserved 

his proof or deliberately withheld his 
claim for a second petition.... Nor is 

the petitioner now raising an issue identi 

cal to one he earlier considered without 

merit. 

McCleskey, No. C87-151TA, slip op. at 24 
(citations omitted). 

This holding by the district court miscon- 
strues the meaning of deliberate abandon- 

ment. McCleskey included a Massiah 

claim in his first state petition, dropped it 

in his first federal petition, and now asserts 

it ‘again in his second federal petition.’ 
Given that McCleskey had asserted the 
Massiakh claim in his first state habeas 

petition, it is clear that the issue was not 

unknown to him at the time of his first 

federal petition. Further, we must assume 

that at the time McCleskey filed his first 

state habeas petition, counsel had deter- 

mined that there was some factual basis 

for a Massiah claim. Indeed, such a deter- 

mination is not surprising. Not only was 

9. In an amendment to his first state petition, 
McCleskey alleged that: 

The introduction into evidence of petitioner's 
statements to an informer, elicited in a situa 
tion created to induce the petitioner to make 
incriminating statements without assistance 
of counsel, violated the petitioner's right to 
counsel under the Sixth Amendment to the 
Constitution of the United States and Section 

2-111 of the 1976 Constitution of the State of 

Georgia. 

10. Evans testified at trial as to certain state 
ments that McCleskey had made in prison. 

11. In Giglio v. United States, 405 U.S. 150, 92 
S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme 

counsel aware that Evans was in a cell next 

to McCleskey,'® but counsel was also aware 

that some sort of relationship existed be- 
tween Evans and the police, as this formed 
the basis of McCleskey’s Giglio claim.! 
The petitioner and his counsel did not acci- 

dentally fail to include the Massiah claim in 

the federal petition, but made a knowing 

choice not to pursue the claim after having 
raised it previously. This constitutes prima 
facie evidence of deliberate abandonment. 
In Darden v. Dugger, we stated that: 

The record shows that the issue present: 
ed in this third petition was specifically 
withdrawn from the district court’s con- 

sideration as being not well founded. 
The issue was abandoned. Intentional 

abandonment of a claim is precisely the 

context that application of the concept of 
abuse of the writ is intended to address. 

Witt, 755 F.2d at 1397. Petitioner may 

be deemed to have waived his right to a 

hearing on a successive application for 

federal habeas relief when he deliberate- 

ly abandons one of his grounds at the 
first hearing. 

825 F.2d at 294. 

When asked at the second federal habeas 

hearing why he did not pursue the Massiah 

claim in his first federal petition, counsel 

responded that his efforts to find evidence 

in support of the claim had failed. It ap- 

pears, however, that these efforts were 

somewhat lacking. Counsel testified that 
he informally attempted to contact jailers 

at the Fulton County Jail, but that they 

could provide him with no information. 

Court held that the state violates due process 
when it obtains a conviction on the basis of a 
witness's testimony when the witness has failed 
to disclose a promise of favorable treatment 
from the prosecution. McCleskey included a 
Giglio claim in his first state and first federal 
habeas petitions. ~~ 

12. At his second federal habeas hearing, the 
lawyer who represented McCleskey at the first 
federal habeas hearing testified that he “spoke 
with a couple of Atlanta Bureau of Police Ser- 
vices Officers” in order to find out how to devel- 
op factual evidence in support of a claim. Pur- 
suant to their suggestion, counsel spoke with 
two or three persons who were deputies at the 
Fulton County Jail. He testified that “none of 

 



  

350 890 FEDERAL REPORTER, 2d SERIES 

He also noted that at a deposition taken for 

the first state habeas hearing, Russell Par- 

ker, the District Attorney prosecuting the 

case, claimed that he was unaware of any 

instance in which Evans had worked for 

the Atlanta Police Department prior to his 

overhearing conversations at the Fulton 

County Jail. Counsel testified that he did 
not carry the Massiah claim over into the 

federal habeas petition because he “looked 
at what we had been able to develop in 

support of the claim factually in the state 

habeas proceeding and made the judgment 

that we didn’t have the facts. to support the 

claim and, therefore, did not bring it into 

federal court.” 

[8] Abandoning a claim after initial in- . 

vestigatory efforts prove unsuccessful can- 

not insulate a petitioner from abuse of the 

writ. See Witt v. Wainwright, 155 F.2d at 

1397 (insufficient to allege that evidence 

was not available if it was within petition- 

er’s power to elicit such evidence at time of 

earlier petition); Woodard v. Hutchins, 

464 US. 377, 379 & n. 3, 104 S.Ct. 752, 753 
& n. 3, 78 L.Ed.2d 541 (1984) (per curiam) 

(Powell, J., concurring, joined by four other 

justices) (petitioner found to have abused 

the writ when he is unable to explain why 

examination providing evidence of insanity 

was not conducted earlier); Antone v. Dug- 

ger, 465 U.S. 200, 205 & n. 3, 206, 104 S.Ct. 

962, 964 & n. 3, 965, 79 L.Ed.2d 147 (1984) 
(per curiam) (haste with which first habeas 

petition prepared does not require courts to 

consider claims withheld from that petition 

if substance could have been presented in 
first petition). 

[9] McCleskey places great emphasis on 

the fact that the State allegedly withheld 
Evans’ 21-page statement from both trial 

and habeas counsel. The statement was 

them had any information. Basically they had 
no recollection of the circumstances regarding 
how Evans came to be assigned to the jail cell 
that he was assigned to or of any conversations 
with the Atlanta Bureau of Police Services De- 
tectives regarding Offie Evans’ assignment to 
that jail cell.” 

Counsel apparently made no attempt to con- 
tact persons who clearly had contact with Evans 
and McCleskey at the Fulton County Jail. He 
testified that he did not speak to Detective Dor- 
sey (mentioned by Evans in his testimony at the 

ultimately obtained in June of 1987 

through a request pursuant to the Georgia 

Open Records Act, 0.C.G.A. § 50-18-72(a), 

It is clear, however, that the statement 

itself does not demonstrate the existence of 
a Masstah violation. At most, it was sim- 

ply the catalyst that caused counsel to pur- 

sue the Massiah claim more vigorously, 
The key piece of evidence supporting 
McCleskey’s Massiah claim was the testi 

mony of Worthy, who testified for the first 
time at the second federal habeas hearing: 
in July of 1987. Counsel claims that he did 
not discover Worthy until he engaged in a 

“massive, indiscriminate effort to subpoena 

everyone whose name was mentioned in 

any document.” McCleskey has not 

presented any reason why counsel would 

have been unable to contact Ulysses Wor- 

thy back in 1981 when the first federal 
habeas petition was filed. Nor has he 

shown that a more extensive effort at that 

time to track down persons with informa- 
tion as to what transpired in the county jail 

during the summer of 1978 would not have 

turned up Worthy. A petitioner and his 
counsel may not circumvent the abuse of 

the writ doctrine by failing to follow 

through with an investigation and then la- 
ter 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.'? 

C. Ends of Justice 

Having found that McCleskey abused the 

writ by deliberately abandoning his Massi- 

ah claim, we must now decide whether the 

“ends of justice” require consideration of 

first state habeas hearing), to Detectives Jowers 
or Harris (officers who had investigated the 
McCleskey case), or Deputy Hamilton (who tes 
tified at trial regarding his contact with Mr. 
Evans). 

13. We also note that in 1981 there apparently 
still existed records listing each prisoner's cell 
assignment and any visitation of prisoners by 
outsiders. These records, which would have 
corroborated or disproved Worthy's testimony, 
have since been destroyed. 

a ta roan 

 



  

McCLESKEY v. ZANT 351 
Cite as 890 F.2d 342 (11th Cir. 1989) 

his claim on the merits.'"* See Sanders v. 

United States, 373 U.S. at 16-19, 83 S.Ct. 
at 1078-79. In Kuhlmann v. Wilson, the 

Supreme Court attempted to give greater 

content to the open-ended “ends of justice” 

inquiry. Its statement, however, that “the 

‘ends of justice’ require federal courts to 
entertain such petitions only where peti 

tioner supplements his constitutional claim 

with a colorable showing of factual inno- 

cence,” 477 U.S. at 454, 106 S.Ct. at 2627, 

commanded only a plurality of the justices. 

See Messer v. Kemp, 831 F.2d 946, 958 n. 

19 (11th Cir.1987) (en banc), cert. denied, 

— US. —, 108 S.Ct. 1586, 99 L.Ed.2d 
902 (1988). Thus, the circumstances under 

which ends of justice would require rehear- 

ing of an otherwise abusive petition remain 
unparticularized. 

We find it unnecessary to more narrowly 

define the circumstances in this case. For, 

the instances in which ends of justice 

would require a rehearing of a claim do not 

include those in which a violation of a con- 

stitutional right would be found to consti- 

tute harmless error.!® The members of 
this panel disagree as to whether the dis- 

trict court was correct in finding that 

McCleskey had established a Massiak viola- 

tion. Pretermitting that inquiry, however, 

the panel is unanimous that any violation 

that may have occurred would constitute 

harmless error and that the district court 

erred in concluding otherwise. 

D. Harmless Error 

[10,11] The remedy for a Massiah vio- 

lation is not an automatic reversal of a 

conviction, but rather the exclusion of evi- 

dence tainted by the violation of petition- 

er's right to counsel. United States v. 

Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 

668, 66 L.Ed.2d 564 (1981). The previous 

use of the tainted evidence will not result 

in a reversal of a conviction if it constituted 

“harmless error.” Under the harmless er- 

14. The district court did not reach the “ends of 

justice” inquiry as it found that McCleskey’s 
claim did not constitute abuse of the writ. 

18. See Messer v. Kemp, 831 F.2d at 958-59: 
Because we conclude, as a matter of law, that 

the record in this case fails to disclose an Ake 

ror doctrine, the state must “prove beyond 

a reasonable doubt that the error com- 

plained of did not contribute to the verdict 

obtained.” Chapman v. California, 386 

U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 

705 (1967). See also, Satterwhite v. Texas, 

486 U.S. 249, 108 S.Ct. 1792, 1798, 100 

L.Ed.2d 284 (1988) (harmless error analysis 

applied to sixth amendment violation taint- 

ing evidence in sentencing phase of capital 

trial); Brown v. Dugger, 831 F.2d 1547, 

1554 (11th Cir.1987). 

In this case, the district court held that 

the error complained of could not be found 

harmless because Evans’ testimony con- 

cerning McCleskey’s incriminating state- 

ments was critical to the State’s case. In 

reaching this conclusion, the court ignored 

the Eleventh Circuit's previous discussion 

in McCleskey, 153 F.2d at 884-85, of the 

importance of the evidence introduced 

through Evans’ testimony at trial. Though 

that discussion occurred in the context of 

McCleskey’'s Giglio claim, it clearly has 
bearing on the import of Evans’ testimony 

in the context of McCleskey’'s Massiah 

claim. It is true, as petitioner argues, that 

the harmless error inquiry in the case of a 

Giglio claim differs from the inquiry in the 

case of a Massiah violation, but this differ- 

ence does not save McCleskey’s claim. 

The crucial question in a Giglio claim is 

whether the state's failure to disclose its 

promise of reward to a witness affected the 

judgment of the jury as to the credibility of 

that witness. See Giglio, 405 U.S. at 154, 

92 S.Ct. at 766. In its previous opinion, the 

Eleventh Circuit held that the judgment of 

the jury that convicted McCleskey was not 

affected by the lack of disclosure. Its 

holding was based on two separate 

grounds. First, it found that “Evans’ cred- 

ibility was exposed to substantial impeach- 

ment even without the detective’s state- - 

ment and the inconsistent description of his 

escape,” as the jury had already been made 

violation, our “ends of justice” analysis need 
not proceed any further. That is, we need not 
address any other factors relevant to the 
“ends of justice” in light of our conclusion 
that no constitutional violation occurred. 

 



  

352 890 FEDERAL REPORTER, 2d SERIES 

aware of Evans’ extensive list of past con- 

victions. 753 F.2d at 884. Second, and 

more important for our purposes, the Elev- 

enth Circuit found that, in light of all the 

other evidence presented to the jury, Ev- 

ans’ testimony could not “ ‘in any reason- 

able likelihood have affected the judgment 

of the jury.’” Id. at 885 (quoting Napue v. 

Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 
1178, 3 L.Ed.2d 1217 (1959)). This is pre- 
cisely the finding that must be made in a 

harmless error analysis under Massiak and 
upon reexamination, we find no reason to 

disturb this finding. 

Evans was called by the State on rebut- 

tal to strengthen its proof that McCleskey 
was the triggerman at the holdup. He 

testified that McCleskey had admitted to 

him that he had shot the policeman and 
that McCleskey had admitted to wearing 

makeup to disguise himself during the rob- 

bery. He also stated that McCleskey said 

he would have shot his way out even if 

there had been a dozen policemen. 

Turning first to Evans’ testimony re- 

garding McCleskey’s admission that he was 

the triggerman, we feel that the State has 

met its burden of proving, beyond a reason- 

able doubt, that this testimony did not con- 

tribute to the verdict. First, as noted by 

the en banc court, McCleskey’s codefend- 

ant, Ben Wright, also testified that McCles- 

key was the triggerman. Though Georgia 

law requires corroboration of an accom- 

plice’s testimony in felony cases, it is clear 

that corroboration can be through circum- 

stantial as well as direct evidence. Davis 

v. State, 178 Ga.App. 760, 344 S.E.2d 730, 
732 (Ga.App.1986) (quoting Gunter nv. 

State, 243 Ga. 651, 655, 256 S.E.2d 341 
(Ga.1979)). 

The State presented a substantial 

amount of circumstantial evidence. 

McCleskey himself confessed to his partic- 

ipation in the robbery. The officer was 
killed by the man who entered and secured 

the front of the store while the other three 

men were in the back. McCleskey was 

identified by two of the store personnel as 

the robber who came in the front door. 

The officer was killed by a bullet from 

a .38 caliber Rossi handgun. The State 

presented evidence that McCleskey had sto- 

len a .3% caliber Rossi in a previous holdup. 
The gun that McCleskey had stolen had a 
white handle. The State presented testimo- 
ny from an eyewitness that the robber who 
ran out the front door after the robbery 

was carrying a pearl-handled pistol. This 
evidence not only corroborates Ben 
Wright's testimony, but is of sufficient 

quantity to allow this court to find that any 
additional testimony by Evans did not con- 

tribute to the verdict. 

Evans’ testimony regarding McCleskey’s 
statement that he was wearing makeup 
could also not have reasonably affected the 
jury’s determination. The en banc court 

found that: 

Evans’ testimony that McCleskey had 
made up his face corroborated the identi- 
fication testimony of one of the eye- 
witnesses. Nevertheless, this evidence 

was not crucial to the State’s case. That 
McCleskey was wearing makeup helps 

establish he was the robber who entered 

the furniture store through the front 
door. This fact had already been directly 
testified to by McCleskey’s accomplice 
and two eyewitnesses as well as corrobo- 
rated by McCleskey’s own confession. 
That Evans’ testimony buttresses one of 
the eyewitnesses’ identifications is rela- 

tively unimportant. 

753 F.2d at 885. 

Finally, petitioner asserts that Evans’ 

testimony as to McCleskey’s statement that 

he would have been willing to shoot twelve 
policemen affected the jury’s finding as to 
the presence of malice and increased its 
willingness to impose a sentence of death. 

Once again, we find that the en banc 
court's analysis of this issue demonstrates 
that this testimony was not crucial to the 
jury’s finding of malice murder. The court 

wrote that: 

In his closing argument, however, the 
prosecutor presented to the jury three 
reasons supporting a conviction for mal- 
ice murder. First, he argued that the 

physical evidence showed malicious in- 
tent because it indicated that McCleskey 

+ shot the police officer once in the head 
and a second time in the chest as he lay 
dying on the floor. Second, the prosecu- 

tor asserted that McCleskey had a choice, 

either to surrender or to kill the officer. 
That he chose to kill indicated malice. 

an ae sin ann Ba lin — 

 



  

PEARSON v. CLR. 353 
Cite as 890 F.2d 353 (11th Cir. 1989) 

Third, the prosecutor contended that 

McCleskey’s statement to Evans that he 

still would have shot his way out if there 

had been twelve police officers showed 

malice. This statement by McCleskey 

was not developed at length during Ev- 

ans’ testimony and was mentioned only 

in passing by the prosecutor in closing 

argument. 

Id. at 885. In addition, the court finds no 

reasonable likelihood that the jury’s imposi- 

tion of the death penalty was affected by 

Evans’ testimony. The prosecutor did not 

introduce Evans as a witness at the sen- 

tencing phase of trial, nor did he use Ev- 

ans’ testimony to portray McCleskey as a 

hardened criminal deserving of death, but 

concentrated instead on McCleskey’s prior 

convictions. 

Because evidence other than Evans’ testi- 

mony presented in the case presents such a 

clear indication of McCleskey’s guilt, this 

court finds beyond a reasonable doubt that 

the jury would have convicted and sen- 

tenced McCleskey as it did even without 

Evans’ testimony. Our determination that 

any Massiah error would be harmless pre- 

cludes a finding that the ends of justice 

would require us to entertain McCleskey's 

claim on the merits. 

CONCLUSION 

The judgment of the district court grant- 

ing the petition for writ of habeas corpus is 

reversed and the petition is hereby denied 

as an abuse of the writ. 

REVERSED. 

16. This case can easily be distinguished from 

Satterwhite v. Texas, 486 U.S. 249, 108-S.Ct. 

1792, 100 L.Ed.2d 284 (1988), a case that peti- 

tioner cites as controlling. In Satterwhite, a 

psychiatrist, who had interviewed the defendant 

in violation of his sixth amendment rights, testi- 

fied in a separate sentencing proceeding that the 

defendant presented a threat to society’ through 

continuing acts of violence. In finding that the 

constitutional error was not harmless, the Court 

stressed that under Texas law, a jury may not 

sentence a defendant to death unless it finds 

that the defendant would commit acts of vio- 

James C. PEARSON, Deceased, Mildred 

Pearson, Personal Representative, and 

Mildred Pearson, Petitioners-Appel- 

lants, 

Vv. 

COMMISSIONER OF INTERNAL 

REVENUE, Respondent-Appellee. 

No. 88-3961 

Non-Argument Calendar. 

United States Court of Appeals, 

Eleventh Circuit. 

Dec. 11, 1989. 

Personal representative of taxpayer's 

estate petitioned Tax Court for redetermi- 

nation of IRS’ deficiency decision. The Tax 

Court entered judgment in favor of IRS, 

and personal representative appealed. The 

Court of Appeals held that IRS does not 

need to mail notice of income tax deficiency 

to both spouses executing joint tax return, 

when IRS seeks to collect entire deficiency 

from single spouse. 

Affirmed. 

1. Internal Revenue 4544 

IRS does not need to mail notice of tax 

deficiency to both spouses executing joint 

income tax return, where IRS seeks to 

collect entire deficiency from single spouse. 

26 U.S.C.A. § 6212(bX2). 

2. Internal Revenue ©4647 

Tax Court did not have power to grant 

taxpayer's estate equitable relief from mo- 

lence and would be a threat to society. Addi- 

tionally, the Court found that the psychiatrist's 

testimony stood out “both because of his qualifi- 

cations as a medical doctor specializing in psy- 

chiatry and because of the powerful content of 

his message.” Jd at —, 108 S.Ct. at 1799. In 

the instant case, the jury was not instructed as 

to future dangerousness, and the Eleventh Cir- 

cuit found, in its previous discussion of the 

Giglio violation, that Evans’ testimony had al- 

ready been greatly impeached by his own crimi- 

nal background. 753 F.2d at 884. 

  

 



  

APPENDIX D 
  

 



  

United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW. 

Atlanta, Georgia 30303 
Miguel J. Cortez February 6, 1990 In Replying Give Number 

Clerk Of Case And Names Of Parties 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: 

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

  

The enclosed order has been entered on petition(s) for rehearing. 

See Rule 41, Federal Rules of Appellate Procedure, and Eleventh 
Circuit Rule 41-1 for information regarding issuance and stay of 
mandate. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

idson By: Matt Davi 

  

Deputy Clerk 

Encl. 

Mary Beth Westmoreland, Esq. 
Robert Stroup, Esqg. 

John Charles Boger, Esq. 

REHG-1 
7/87 

 



  

IN THE UNITED STATES COURT OF APPEALS 
  

  

  

1 | ; | ELEVENTH CIROUIT 

NOS. 88-8085 & 89-8085 FEB 6 1990 

    
MIGUEL J. CORTEZ 

CLERK 
Petitioner-Appellee, 

WARREN MCCLESKEY, 

versus 

WALTER ZANT, Superintendent, Georgia 
Diagnostic and Classification Center, 

Respondent-Appellant.. 

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

  

ON PETITION(S) FOR REHEARING AND SUGGESTION(S) QF REHEARING IN BANC 
(Opinion_ Novembex 22, 1989 vr 11 Qir., 108 

( YE 61030 
Before KRAVITCH and EDMONDSON, Circuit .Judges, and RONEY, Senior 

wt em—rl 1,   

Circuit Judge. 
PER CURIAM: 

DK) The Petition(s) for Rehearing are DENIED and no member of this panel nor other Judge in regular active sarvice on the Court having requested that the Court be pollad on rehearing in banc (Rule 35, Faderal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing In Banc are DENIED. 
( ) The Petition(s) for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-53), the Suggestion(s) of Rehearing In Banc are also DENIED. “ —- 

( ) A member of the Court in active service having requested a Poll on the reconsideration of this cause in banc, and a majority -¢ the judges in active service not having voted in favor of it, Rehearing In Banc is DENIED. 

ENTERED FOR THE COURT: 

Co J 
  

United Statas Circuit Judge 

 



  

APPENDIX E 
  

 



  

Tnited States Court of Appeals 
Eleventh Circuit 
56 Forsyth Street, N.W. 

Atlanta, Georgia 30303 

Miguel J. Cortez In Replying Give Number 

Clerk Of Case And Names of Parties 

February 14, 1990 

MEMORANDUM TO COUNSEL OR PARTIES: 

RE: 88-8085 McCleskey v. Kemp 

DC DRT NO.: 87-01517 CV 

  

MANDATE STAYED TO AND INCLUDING March 23, 1990 

The court has this day granted a stay of the mandate to the date shown 

above. If during the period of the stay there is filed in this court a 
Notice from the Clerk of the Supreme Court that the party who has 
obtained the stay has filed a petition for writ of certiorari in the 
Supreme Court, the stay shall continue until final disposition by the 
Supreme Court. Upon the filing of a copy of an order of the Supreme 
Court denying the petition for writ of certiorari, the mandate shall 
issue forthwith. See Fed.R.App.P. 41. 

The Clerk of the Supreme Court has requested the clerks of the federal 

courts of appeal to retain the record on appeal until the Supreme 
Court requests that it be transmitted. Parties will be advised when 
this occurs. Accordingly, please refrain from routinely requesting 
transmittal of the record. See Supreme Court Rule 19.1. 

A copy of this court’s opinion (or Rule 36-1 decision), the judgment, 
and any order on rehearing should be attached as an appendix to any 
petition for writ of certiorari (or jurisdictional statement) filed. 
See Supreme Court Rules 21(k), 15(]). 

Sincerely, 

CORTEZ) Clerk 

  

Reply To: Matt Davidson (404) 331-2904 
- 

Consolidated with No. 89-8085 

MDT-2 (7/87) 

 



  

  
IN THE UNITED STATES COURT OF APPEALS 

  

  

      

FILED 
FOR THE ELEVENTH CIRCUIT | US. COURT OF APPEALS 

| NTH CIRCUIT 

. KOS. 88-8085 & FEB | 4 BED 
89-8085 

MIGUEL J. CORTEZ 
WARREN MOCLESKEY CLERK 

  

Petitioner-Appellee, 

versus 

WALTER ZANT, Superintendent. Ganrgia 
Diagnostic and Classification Center, 

Respondent-Appellant. - 

  

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

  

ORDER! | 

( ) The motion of Appellee, Warren McCleskey, 
    

for (X) stay ( ) raeall and stay Or the issuance of the mandate 
pending petition for writ of certiorari is DENIED. 

<) The motion of Appellee, Warren McCleskey, 
  for (X) stay ( ) recall and stay of the issuance of the mandate 

pending petition for writ of certiorari is GRANTED to and includ! 
andy 13 1990 , the stay to continue in force until the final 

disposition of tha case by the Supreme Court, provided Llat wiznin 
tho period above mentioned there shall be filed with the Clerk c? 

  

ng 

this Court the certificate of the Clark of tha Supreme Court *-as tha 
certiorari petition haa been flled.  'I'ne Clerk shall issue th 
mandate upon the filing of a ony of an order af tha Suprema co.cc: 

on ©f the stay granted here:.-. denying the writ, or upon expira 
unless the above mentioned certificate shall be filed with the -.ark 
of this Court within that time, 

( ) The motion of 
    for a further stay of the issuance of the mandate LS GRANTED -- +-3 

including » under the same conditions ss 
forth {n the preceding paragraph. 
  

( ) IT IS ORDERED that the motion of 
for a further &tay of the issuance of the mandate is DENIED. 

trou Vie 
UNITEY STATES CIRCUIT JUDGE 

  

  
  

ORD=45S 

: 77% os