Motion for Stay of Mandate

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

NO. 84-8423 

  

WARREN McCLESKEY 

Petitioner-Appellant, 

-against- 

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

Respondent-Appellee. 

  

On Appeal From The United States District Court 
For The Northern District Of Georgia 

Atlanta Division 

  

PETITIONER'S MOTION FOR STAY OF THE MANDATE 

  

Petitioner Warren McCleskey, by his undersigned counsel, 

moves this Court, pursuant to Rule 41(b) of the Federal Rules of 

Appellate Procedure, for an order staying the mandate in the 

above-captioned appeal, pending the timely filing of a petition 

for certiorari in the Supreme Court of the United States. 

Petitioner requests the Court to grant him 45 days from the date 

of the denial of rehearing, to and including March 23, 1990, for 

submission of his petition for certiorari. 

THE QUESTIONS TO BE PRESENTED 
  

Petitioner's case raises several questions which, under new 

Rule 10.1 of the Rules of the Supreme Court, merit review on 

certiorari. 

(1) Petitioner suggests that the panel has read the  



  

"deliberate bypass" branch of the abuse-of-the-writ doctrine in a 

new way. Under this new reading, a habeas applicant will be 

deemed to have deliberately abandoned a constitutional claim-- 

even if neither he nor his counsel were actually aware of the 

factual predicate of the claim -- if a court later judges that 

counsel did not conduct a "thorough investigation of the facts" 

to uncover the claim. 

This new reading appears to depart sharply from the standard 

implicitly approved in Price v. Johnston, 334 U.S. 266 (1948). 
  

It is inconsistent with Supreme Court's explicit articulation of 

the deliberate bypass test set forth in Sanders v. United States, 
  

373 U.S. 1 (19863), "which refers to conduct by a petitioner 

    

"whose only purpose is to vex, harass, or delay." 373 U. S. at 

18. See also, Amadeo v. Zant, U.S. _, 100 L.Ed.2d 249, 262-264 

(1988). The new reading likewise conflicts with prior decisions 

by other circuits on this issue. See, e.qg., Paprskar v. Estelle, 
  

612 F.2d 1003 (5th cir. 1980); Potts v. Zant, 638 F.2d 727 (5th 
  

cir. Unit B 1981). 

If the time has come to refashion the "deliberate bypass" 

test and impose on habeas counsel an obligation, on pain of 

forfeiture, to conduct a thorough factual examination of all 

claims =-- an obligation more stringent than that currently 

imposed under the "inexcusable neglect" branch of abuse law, 

since it requires counsel to continue their investigations in the 

teeth of sworn disavowals by State officials -- the Supreme Court 

should have a full opportunity to consider this important change 

 



  

before it is adopted by the lower federal courts. 

(2) A second important question stems from the panel's 

apparent disregard of the equitable foundations upon which the 

federal courts have fashioned modern habeas jurisprudence. 

Sanders underscored that "'habeas corpus has traditionally been 

regarded as governed by equitable principles . . . [a]mong 

[which] 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. Yet in this case, neither the proven course of 

State misconduct nor the State's ten-year coverup of that 

misconduct, capped by perjury, were considered in determining 

whether petitioner's claims should be heard on their merits. 

This judicial indifference to whether the State has come to 

the federal courts with clean hands seems inconsistent, not only 

with general equitable principles, but with the Supreme Court's 

recent reiteration of similar principles in such habeas cases as 

  

Murray v. Carrier, 477 U.S. 478, 488 (1986), ("[W]e note that a 

showing that the factual . ., ., ‘basis for a claim was not 

reasonably available to counsel . . . or that 'some interference 

by officials, . . +. -made compliance impracticable, would 

constitute cause"); id. at 497 ("[r]espondent has never alleged 

any external impediment that might have prevented counsel from 

raising his . . . claim in his petition for review. . . ") 

(3) The panel's treatment of the State's harmless error 

defense ignored both the trial record and the District Court's 

  

factfindings. Its determination that any violation of Massiah Vv. 

 



  

  

United States, 377 U. S. 201 (1964), was harmless violated the 

recent guidelines for appellate review of factfindings set forth 

in Amadeo v. Zant. See also, Anderson v. City of Bessemer City, 
  

470 U. S. 564 (1984); Pullman-Standard v. Swint, 456 U.S. 273 
  

(1982). Alternatively, if the panel felt itself bound by the 

previous holding of the Court of Appeals sitting en banc -- that 

petitioner's Giglio error was harmless -- the Supreme Court 

should now be afforded the opportunity to examine whether the en 

banc court was correct on that point and whether, in any event, 

this Giglio holding was properly expansive enough to control the 

distinct legal and factual circumstance presented by ‘a Massiah 

violation. 

THE NEED FOR ADDITIONAL TIME 
  

Petitioner seeks 45 days to prepare his petition for several 

reasons. The Massiah claim involves a complicated story about 

the intersection of pretrial police investigations, mid-trial and 

post-trial defense investigations, state and federal habeas 

proceedings, and the product of several state and federal 

svidenilary hearings. The legal issues are also complex. 

Petitioner's co-counsel, both of whom have been active in the 

drafting process, live and work in separate cities, and both have 

heavy litigation responsibilities in other cases during the 

coming month. It would materially aid counsel in presenting 

petitioner's claims to have 45 days in which to prepare the 

petition. 

 



  

CONCLUSION 
  

For all of the reasons set forth above, petitioner urges the 

Court to grant his motion, to stay issuance of the mandate on 

this appeal through March 23, 1990, and to continue the stay 

thereafter if petitioner files a timely petition for certiorari 

with the Supreme Court of the United States by that date. 

Dated: February 8, 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 

-APPELLANT 

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BY: 3 L laa, I Pat JP ra a Sy 

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CERTIFICATE OF SERVICE 

I hereby certify that I am one of the attorneys for 

petitioner-appellant Warren McCleskey on this appeal, and that I 

am a member of the bar of this Court. I have served the annexed 

motion on respondent-appellee Walter D. Zant by placing a copy in 

the United States mail, first class mail, postage prepaid, 

addressed as follows: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

All parties required to be served have been served. Done 

Lan, LAG Cm 

JQHN CHARLES BOGER *~ 

Wd 
this C th day of February, 1990. 

    

— 

 



United 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, 19°90 

  

MEMORANDUM TO COUNSEL OR PARTIES: 

RE: 88-3085 McCleskey v. Kemp 

DC DRT NO.: 8701517 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(j). 

Sincerely, 

  

een) Clerk 

Reply To: Matt Davidson (404) 331-2904 

Consolidated with No. 89-8085 

MDT-2 (7/87) 

 



  

ORDER! 

() 

OV. 

IN THE UNITED STATES CQURT OF. APPEALS mem— 
  

  

  

  
    

FILED 
VE RCUIT | U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCU | RS 

. NOS. 88-8085 & FEB! 2A 8D 
89-8085 | 

MIGUEL J. CORTEZ 
WARREN MCCLEBYRY, ; 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 

  

The motion of Appellee, Warren McCleskey, 
for (X) stay ( ) raoall and wLay Of Che 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 lssuance of the mandate pending petition for writ of certiorari is GRANTED to and including ards 13 1990 , the stay to continue in force until the final disposition of tha case by the Suprema Court, provided that witn:in tho period above mentioned there shall be filed with the Clerk 2 
this Court the certificate of the Clark of the Supreme Court +--+ tha 
certiorari patition haa been flled. Tne Clerk shall issue the mandate upon the filing of a gopy of an order af tha Supreme co.cc 
danying the writ, or upon expiratien of the stay granted here.-. 
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 1s GRANTED --> -1 

including » under the same conditions as so   forth in the preceding paragraph, 

1T Is ORDERED that the motion of 
for a further stay of the issuance of the mandate is DENIED. 

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  UNITED STATES CIRCULIT JUDGE 

ORD=-4S