Joint Appendix Notes and Draft

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Impact area
- Criminal Justice
Topic
- Capital Punishment
LDF Attorneys
Cooperating Attorney
- Robert Stroup
Notable Person
- Warren McCleskey
Organizations
Matter
- McCleskey v. Kemp
Case
- McCleskey v. Zant – U.S. Supreme Court (No. 89-7024)
U.S. state
- Georgia
Collection
- Case Files
Taxonomy
Identifier
- c2706254-63a7-ef11-8a69-6045bdd6d628

Cite this item

Case Files, McCleskey Background Materials. Joint Appendix Notes and Draft, 1990. c2706254-63a7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5163c8a5-7b3b-4382-8c7d-28137a291a5e/joint-appendix-notes-and-draft. Accessed August 31, 2025.

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No. 89-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

WARREN McCILESKEY,

Petitioner,

WALTER D. ZANT, Superintendent,

Georgia Diagnostic & Classification
Center,

Respondent.

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

BRTEF FOR PETITIONER WARREN McCLESKEY

CITATIONS TO OPINIONS BETOW

S rantiv
n e District Court )csies judgment in petitioner's favor

Anl. eijat opinion|fis pl reported at 580 F. Supp. 338

\ sat
u (N.D. Ga. 1984). The Court of Appeals Sissing-errtemef reversed th@ judgment

Y 7

at 753 F.2d 877 (11th Cir. 1987) (en banc) Von

ed.
A£E1 Tig the-€ourt-of-Appeater—that &

Foptmonis-offieiatty-reported at. 481 U.S. 279 (1987).

. urt

pile co

non" @ hab te |
fre District court) Gn a second federal |appdieatien, | entered an order

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

((v J. A. a

7 ) 1987, granting Cai fb titioner) that order, which is not ctsictatty |

reported, appears in the Joint Appendix [at pages 63-3100. On January 6, 1989,

the District Court entered an order denying respondent's motion to alter or

2\so
amend the judgment under Rule 60(b); that opinion, i
Una Ee

resorted, appears iR.the-Jeint-Appendix at packs 102-111.

A panel of the Court of Appeals reversed the judgment of the District

Court and denied relief on November 22, 1989; that opinion, which is

F—ottieiniiy reported at 890 F.2d 342 (11th Cir. 1989), appears in-the-Joint

Y—npperdix at paces 112-135. >. A. |

x JURTSDICTTON

Armen of Appeals Ra

timely petition for rehearing and rehearing en banc was denied Jon February 6,

\ Sea / Co
1990. Appendix D to the

petition for certiorari. The Court of Appeals stayed its mandate to and

including March 23, 1990, pending the timely filing of a petition for
Sea

certiorari Na-Copy- ofthat SPREE annexed as Appendix E to the petition for

certiorari. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §

1254 (1) .

STATUTORY PROVISTONS INVOIVED

This case involves 28 U.S.C. § 2244 (b), which provides in pertinent

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 . . . is 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 Crime

On May 13, 1978, the Dixie Furniture Store in Atlanta, Georgia, was

robbed by four men (T. Tr. 360-363), each of them carrying weapons. (T. Tr.

199; 266-268) ,1 During the robbery, an Atlanta police officer, Frank Schlatt,

1 Each reference to the transcript of the trial of this case, held in
the Superior Court of Fulton County, Georgia on October 9-12, 1978, will be
indicated by the abbreviation "T. Tr.," followed by the number of the page on
which the reference may be found. References to the transcript of the state
habeas corpus proceedings, held in the Superior Court of Butts County,
Georgia, on January 30, 1981/, will be indicated by the abbreviation "St. Hab.
Tr." References to the transcript of the federal habeas corpus hearing, held
in the United States District Court for the Northern District of Georgia on
July 8 & 9, and August 10, 1987, will be indicated by the abbreviation "R."

entered the front of the furniture store in answer to a silent alarm; he was

shot and mortally wounded by one of the robbers. (T. Tr. 213;330-332). Within

a month of the crime, three of the four men, including petitioner Warren

McCleskey, were taken into police custody. (T. Tr. 349-350; 426-427; see 582).

On May 31st, shortly after his May 30th arrest, Mr. McCleskey gave a written

statement to police (T. Tr. 178) in which he acknowledged taking part in the

robbery] but denied shooting Officer Schlatt. (T. Tr. 510-513).

Although several furniture store employees and other persons were

present when the robbery began, all had been shunted to offices toward the

rear of the store and ordered "to lay down on the floor and close [their] . .

. eyes." (T. Tr. 214; 200; 291; 339). Consequently, while some employees

testified that they heard footsteps moving forward just before the shots were

fired, neither they nor anyone else could tell police which robber had

confronted and shot Officer Schlatt. (T. Tr. 200; 214-216; 292-293; 341-343;

330-332). AR short, As the District Court subsequently found, "[t]here were

no witnesses to the shooting." (J.A. 89) 2

B. The Massiah Violation

After his arrest on May 30th, Mr. McCleskey was placed in solitary

confinement at the Fulton County Jail, awaiting trial. The District Court

found that approximately one month later, in early July of 1978, officers of

followed by numbers indicating the volume and pages numbers, in the record on
appeal, on which the reference may be found.

2 police gathered several items of physical evidence which directly tied
one or more of the robbers to the crime. For example, co-defendant Ben Wright
left a black leather coat which was recovered at the scene. Photographs of
the coat were introduced during petitioner's trial. (T. Tr. 370-372; 442-443;
650-654) .

the Atlanta, Georgia, Bureau of Police Services colluded with a known

informant, Offie Evans -- who had just been arrested and taken to the Fulton

County Jail Acari (J.A. 90) —- to secure a confession that would

identify Mr. McCleskey as the robber who had shot Officer Schlatt.

The District Court, after three days of evidentiary hearings, found that

"one or more of those investigating Officer Schlatt's murder" (J.A. 90)

requested Captain Ulysses Worthy, a supervisory jailor at the Fulton County

Jail, to move informant Evans from another cell in the Fulton County Jail to a

cell adjacent to Mr. McCleskey. (J.A. 82). Next, the officers instructed

informant Evans to "get some information" from Mr. McCleskey about Officer

Schlatt's homicide. (J.A. 78).

[Evans] was moved, pursuant to a request approved by Worthy, to
the adjoining cell for the purpose of gathering incriminating
information; Evans was probably coached in how to approach
McCleskey and given critical facts unknown to the general public;
Evans engaged McCleskey in conversation and eavesdropped on
McCleskey's conversations with [co-defendant Bernard] DuPree; and
Evans reported what he had heard . . . to Assistant District
Attorney Parker. . .

(TA. 33).

In making these findings, the District Court credited the testimony of

jailor Worthy, who recounted how Atlanta police detectives and informant Evans

met in Worthy's office at the jail to plan the secret interrogation. Jailor

Worthy testified that, during the meeting, Detective Sidney Dorsey (or perhaps
ans
seme [other "officer on the case") "asked Mr. Evans to engage in conversations

with McCleskey who was being held in the jail." (R5-150) .3 The District Court

itself questioned jailor Worthy on the essential points:

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

Jailor Worthy's testimony was OE etl buttressed by

a remarkable 2l1-page statement, first given orally by inmate Evans to Atlanta

police officials in July of 1978 —ehortiy-after-the—imial-meeting-betweerr =

XEvens-end-the-detectives, and later memoralized in writing in August of 1978.

(R4- 141-142). 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 family relationship

with McCleskey's co-defendant, Ben Wright, (iii) lied about his own near-

3 Each reference to the transcript of the hearing held in this case in
the United States District Court for the Northern District of Georgia on July
9, 1987, will be indicated by the abbreviation "R5" followed by the number of
the page on which the reference may be found. References to the transcript of
the July 8, 1987 portion of the hearing (which was separately paginated by the
reporter), will be indicated by the abbreviation "R4;" references to the
transcript of the August 10th portion of the hearing (which was likewise
separately paginated) will be indicated by the abbreviation "R3."

involvement in the crime, (iv) spoke to McCleskey about details of the crime

which had not been rade 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.

McCleskey's statements to informant Evans later became a centerpiece of

the State's case during McCleskey's triaTRsndoes, [re State used Evans'

testimony to establish three important points: ( 33 that McCleskey had {. )

confessed to informant Evans that he shot Officer Schlatt (T. Tr. 870-871);

> that McCleskey told Evans ". . . he would have tried to shoot his way out

. if it had been a dozen" police officers (T. Tr. 871) ;° and (iad 3) that

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

"I told Warren McClesky [sic] 'I got a nephew man, he in a world of
trouble ...' McClesky asked me 'What is his name.' I told him 'Ben Wright.
McClesky said 'You Beens' [sic] uncle.' I said 'Yeah.' He said 'What's your
name?' I told him that my name was Charles." (Fed. Exh. 8, at 3).

After Evans falsely assured McCleskey that he had seen Wright a few week
ago, and that he "used to stick up with Ben," (id. at 40), Evans told
McCleskey that "Ben told me that you shot the man yourself." (Id.), Evans then
began to pry open the story of the crime. "I said man 'just what's happened
over there?'" (Id.) After McCleskey told him some details of the crime, Evans
continued his surreptitious interrogation: "And then I asked McClesky what
kind of evidence did they have on him." (Id. at 6).

In a subsequent conversation, Evans sought to learn the location of the
missing murder weapon: "Then I said, 'They ain't 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%.

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

McCleskey had clarified to Evans what had become, during trial, a glaring

inconsistency in the testimony of another principal State's witness. ©

After hearing live testimony from jailor Worthy and all of the principal

investigating police officers, and after reviewing informant Evans' 21-page

statement, the District Court concluded that

petitioner has clearly established a Massiah violation here. It is
clear from Evans' written statement that he did much more than merely
engage petitioner in conversation about petitioner's crimes . . . Evans
repeatedly lied to petitioner in order to gain his trust and to draw him
into incriminating statements. Worthy's testimony establishes that
Evans, in eliciting the incriminating statements, was acting as an aft
of the state. This case is completely unlike Kuhlmann v. Wilson . . .
where the Court found no_Massiah violation because the inmate informant
had been a passive listener and had not deliberately elicited
incriminating statements from the defendant. Here, Evans was even more
active in eliciting incriminating statements than was the informant in
Henry. The conclusion is inescapable that petitioner's sixth amendment
rights, as interpreted in Massiah, were violated.

(J.A. 87-88).

Cc. Petitioner's Efforts To Uncover the Violation

3. The Actions of Trial Counsel

Prior to Mr. McCleskey's 1978 trial, his defense attorney, John Turner,

filed a written motion seeking all written or oral statements made by

McCleskey to anyone, and all exculpatory evidence. (See J.A. 5-8). After an

in camera inspection of the prosecutor's file, the trial court denied the

motion, withholding both (i) the 21-page statement made by informant Evans and

© Mamie Thomas —— a store employee who said she "never forgets a face"
(T. Tr. 303-304) -- had told police shortly after the crime that the robber
who entered the store from the front door had "rough facial features," a face
that was "real bumpy" with a scar." (T. Tr. 301-302). None of these
descriptions matched Mr. McCleskey. According to inmate Evans, however,
McCleskey had confessed during their jailhouse conversations that he had been
wearing makeup and a disguise on the day of the crime (T. Tr. 301-303; 870-
871; 876-879).

(ii) even the fact that the State possessed such a statement. (J.A. 9;R1-

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

During mid-trial -- just as the prosecutor began to question Mr.

McCleskey about whether he had ever made statements to another jail inmate

(J.A. 16; T. Tr. 830) —-- defense counsel renewed his motion, orally demanding

all documents in the State's possession that reflected any statements made by

McCleskey. (J.A. 16-17; R1-1, T. Tr.830-832; see Fed. Exh. 6). The trial

A, cot, apparently misunderstanding defense counsel's legal contention, again
i Y
denied the motion.” During his colloquy with defense counsel, the trial judge

inexplicably furthered the impression that the State possessed no undisclosed)

written statements at all. (Judge: "I don't know that we are talking about any

written statements.") (Id.) (emphasis ee

7 1¢ appears that the trial court assumed defense attorney Turner's oral
motion was predicated upon Mr. McCleskey's due process right to the disclosure (
of exculpatory information under Brady v. Maryland, 373 U.S. 83/1963). The
Court thus responded to the motion by remarking that the District Attorney
"has a statement that was furnished to the Court but it doesn't help your
client." (J.A. 17) (emphasis added). The District Attorney, apparently sharing
the trial court's misimpression, added that "[i]t's not exculpatory." (Id.)

In response, the defense attorney indicated, without great clarity, that
the basis of his motion was not Brady, but rather Mr. McCleskey's right under
Georgia law (see Former Ga. Code Ann. § 26-xxxxX) to any statements in the {oRre
State's possession that wg made by his client: "I am entitled to all
statements that he [McCleskey] made." (Id.)

t that hr the trial oA
confounding Offie Evans' 21-page written statement with Warren

ps Sod Ss oral statements -- made to Evans -- that were contained within
accoun 2J This is not a statement of the defendant.

I ns a that we are talking about any written statement." (Id.).
Defense attorney Turner, however, held fast to his motion, me CG A
saying I filed for oral and written statements. I asked for all statements of
the defendant." (Id. at 18).

- » stated : VC

Defense counsel nonetheless preserved an objection to the court's ruling

and briefed the issue on appeal. The Georgia Supreme Court, in denying

relief, contributed to this misimpression, no doubt unwittingly, when it

remarked 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 appeared to
writings al of Mr. Medios key /

suggest that the State possessed no statements that had not

disclosed. :
been during trial. Defense counsel subsequently

testified that he "was never given any indication that [any undisclosed]

statement existaed.Y (J.A. 23; St Hab. Tr. 77).

2. The Actions of Habeas Counsel

Robert Stroup, assisted by lawyers from the NAACP legal Defense &

‘Educational Fund, Inc., entered Mr. McCleskey's case as a volunteer attorney

in April of 1980, shortly before a petition for certiorari was filed Eger

direct appeal.® Although Mr. Stroup lacked anything more than an

unsubstantiated suspicion of a Massiah violation -- based on Evans' proximity
Evans’ "ou

to Mr. McCleskey's cell aid Be Tater appearance as a State's witness

nonetheless decided, as a precaution, to include a Massiah claim in his

amended state habeas petition, along with twenty-two other constitutional

claims. (J.A. 20-22 at € 35; id. at 42-47).

for
8

Mr. Stroup testified that, .throughout|the(course of state habeas - ng
ha dt orm process, Te Tao responsibility draftlall pleadings, carryf{out

investigations, and conductfall hearings. (J.A.57). lawyers from the NAACP
al Defense ord, while formally on the papers, assumed a back-up role,

responding to occasional legal questions from Mr. Stroup and receiving copies
of pleadings. (Id.; see also, Pet. Exh. 1, Aff't of Boger, at 2 ¢ 3).

Pal

Sat

Attorney Stroup pursued the Massiah claim with a field investigation 74

designed to uncover any facts that might support it. The Fulton County Jail

at this time was staffed by several shifts of jailors (R6 76); the total cell

andl population was between 900AL700; each shift 52% Zeiten by literally scores of

officers. (R6 73). Stroup's strategy for Location < sais Massiah

witnesses led him first to several police officers from the Atlanta police

A—rGrce \@mEsRam (J.A. 58), whom he had represented in unrelated Title VIT cases,

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

jailhouse informant relationship. (J.A. 43; R4 31-32). Armed with their

advice, he Sarl interviewed a number of jailors at the Fulton County Jail "who

were directly involved with Offie Gene Evans." (J.A. 59; id. at 43-44; R4 33).

Stroup testified that "[blasically, they had no recollection of the

circumstances regarding how Evans came to be assigned to the jail cell that he

.was assigned to or of any conversations with the Atlanta Bureau of Police

Services Detectives. . . ."(J.A. 45).

Attorney Stroup nonetheless persevered, tracking down a former jail

official, Bobby Edwards, to whom he was directed. By early 1981, Mr. Edwards

had retired and was living over 60 miles from Atlanta. (J.A. 59-60). Throuch a

realtor in Helena, Stroup managed to find him and to interview him. Edwards

proved to have no knowledge NT support Mr. McCleskey's claim

i i (T.A. 60).

Although Mr. Stroup's field investigations on this claim -- one of 22

separate constitutional issues which he, a pro bono volunteer attorney was

a Massiah violations

then pursuing -- ° pore no fruit, Mr. Stroup did not abandon the Massiah claim

at that point. Instead, he sought to discover the prosecutor's file in the

X case.|(J.A.38; Fed. Exh. 2 at 20). In response, one of Georgia's Assistant

Attorneys General sent him a mass of documents, accompanied by a letter
Stvov

assuring Stroup Lat HE as receiving "a complete copy of the prosecutor's

file resulting from the criminal prosecution of Warren McCleskey." (J.A. 29;

Fed. Exh. 7) (emphasis added). Informant Evans' crucial 2l1-page statement was

not included among the documents transmitted. 10

To complete his investigation, Mr. Stroup questioned inmate Offie Evans

under oath during state habeas proceedings (J.A. St. Hab. Tr. 114-132) and

9 . Stroup Mn eaopt Chk, ile investigating Mr. McCleskey's
other state claims, conducted "more than 30" additional interviews
with other witnesses. (J.A. 32). % wiz ‘ne reled

10 my. Stroup subsequently averred that, in-relipnee on these written
‘representations of the State of Georgia, it never occured to him that this
representation was false, that a written statement existed, or t he was
being misled. (J.A. 38; Fed Exh. 2, at ¢ 20.). (At no time

)—peintTCr-later, did lawyers for the District Attorney or for the Georgia
Attorney General's office ever turn over Evans' 2l1-page account of his
undercover interrogation of Warren potesey-l o

1 Stroup asked Evans when he had been placed in solitary confinement at
the Fulton County Jail (St. Hab. Tr. 116), whether there was a "special
reason" he had been put into solitary confinement (id. 116-117), whether he
had been placed adjacent to the cell of Warren McCleskey (id. 117), which
investigators and police officers had spoken with him, when those
conversations with police had occurred (id. 117-118), whether he had been
promised anything in exchange for his testimony against Mr. McCleskey
(id.,122), and whether he had subsequently given testimony against any other
immates in other cases. (Id. 126-127). Informant Evans did not disclose that
he had been moved from another cell to the cell adjacent to McCleskey's, that
he had been asked by Atlanta detectives secretly to interrogate Mr. McCleskey,
that he had agreed to do so, or that he had given a 21-page written statement
to Atlanta investigators. He did reveal, contrary to his testimony at trial
(see T. Tr. 868-869; 882), that an Atlanta detective had promised to "speak a
word for [him]" with authorities, on Evans' own pending charges, in exchange
for his testimony against Mr. McCleskey. (St. Hab. Tr. 122). That admission
became the basis for Mr. McCleskey's allegation of a violation of Giglio v.
United States, 405 U.S.150 (1972), a claim accepted by the District Court, see
580 F. Supp. 388 (N.D.Ga. 1984), but later dismissed by the Court of Appeals.

deposed Russell Parker, the Assistant District Attorney who had prosecuted

McCleskey (J.A. 25-28). Mr. Parker denied that the State's relationship with

its key witness, Offie Evans, had been improper:

Q. [Mr. Stroup]: Okay. Were you aware at the time of the trial of any
understandings between Evans and any Atlanta police department
detectives regarding favorable recommendation [sic] to be made on his
federal escape charge if he would cooperate with this matter?

A. [Assistant District Attorney]: No, sir.

Q. Iet 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.

(J.A. 26; 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.

(J.A. 28' 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.

See 753 F.2d 877 (llth Cir. 1987) (en banc)

(J.A. 55; R4- 44).

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

Offie Evans's 2l-page statement did not come to light until June of 1987

—— six years after Mr. McCleskey's initial federal habeas petition had been

filed. Its existence was revealed only following a fortuitous development in

an unrelated Georgia case.l? Once the statement was in Mr. McCleskey's

foundation
possession, he acted immediately to make it the a Massiah claim

which he included in his second federal petition filed in July of 1987. (See

R1-9 & Exh. E).

Even when presented with Evans' written statement, PB fr (the. )

officials uniformly continued to deny any illegal conduct. 13 During | Mise

(Mr, McCleskey's hearing on hie second [petition, his attorneys nonetheless

12 In that case, Napper v. Georgia Television Co., 257 Ga. 156, 356
S.E.2d 640 (1987), the Supreme Court of Georgia held, for the first time, that
police investigative files were within the compass of the Georgia Open Records
Act, 0.C.G.A. § 50-18-72(a) and, after the end of a direct criminal appeal,
were subject to disclosure during habeas corpus proceedings. Mr. Stroup
immediately cited that then-recent decision, still pending before the Georgia
Supreme Court on rehearing, in support of a request, made not to the Georgia
Attorney General or to the prosecutor, but directly to counsel for the Atlanta
Bureau of Police Services, asking for the original police files in Mr.
McCleskey's case. (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 21-page statement made by Offie Evans. (R1-
7-7).

13 Assistant District Attorney Parker|testified that he had never met
with informant Evans prior to July 12, 1978) that, on that date, Evans
volunteered jally all of the information that was eventually memoralized
on August 1st in Evans' 21-page written statement) and tha y was unaware of
any conversations between Atlanta detectives or other officersyon an
occasions other than July 12th and August 1st. 9” (ra- 140-142; id. 151-153; R5-
78). Other Atlanta police officers consistently denied any prior meetings

~ with informant Evansy (R4- 200; R5- 35-37) or, in the case of Detective
lL Dorsey, professed not to recall any such prior ii (RS 57-60).

}
L Evans .

sought to develop all the circumstances under which theuritten statement had

made =
been Asked by defense counsel where the statement had been taken,

one of the police officers, Detective Welcome Harris, mentioned "a room [at

the Fulton County Jail] that was occupied by a captain, and I don't think --

he's no longer employed out there, I think his name is Worthy." (R4 195).

Asked whether jailor Worthy had been present during the interview, Detective

Harris replied, "No, sir. I'm sure he wasn't, you know." (R4 196).

pte this denial 2

from service at the jail, McCleskey's attorneys
Be

E ; as well as Ely
attempt{ to locate and subpoena him fa other individuals whose

+h week iw f)
names had surfa ing the sen San heoririsg. + (R4=-21). =

N o © [lr Worthy 's {appearance and his testimony -- detailing the secret _(Subseq uewt.

meeting between informant Evans and Atlanta police officers duis which the (‘wn a

~(ssih)schenefe developed -- came as a complete surprise|both (eo |

McCleskey's attorneys (R6- 51-53) and Loa Assistant Attorneys

General. (R6- 5-6).

D. The Issue Of Harmless Error

1. The State's Evidence At Trial

As indicated above, there were no eyewitnesses to the shooting of

Officer Schlatt, although a number of witnesses identified four robbers,

including Warren McCleskey, as participants in the robbery. Several employees

testified that rT saw Mr. MeTlestay enter the furniture store from the

front door (T. Tr. 232] id. 297-299) while other employees saw his three co-

defendants bial ty the rear. (T. Tr. 266-267). The four robbers,

however, herded all of the employees to several offices in the rear half of

the store and forced them to lie face-down on the floor while they carried out
This was the state of

the robbery. (T. Tr. 213-214; 267-268; 288-291) A a
25fa\v S ' :

masEy when Officer Frank Schlatt entered the furniture store by the front

door.
\ robbers oe

No loyee was able to testi i of the four ee-plefendants
ds oT omy =
APETICE Loin ir Officer Schlatt and fired the shots that killed him. hs Wn fhe State

offered two I a ibe told the jury that Warren McCleskey
one of the robbers,

The had confessed to the shooting. oe was Ben Wright, ToCTeakey1e-Co-qorariarc:
+ fore
“ Wright had been a leader in planning and carrying out the robbery; he had

2nd.
directed the other participants (e.g., Tr. T. 654- 657) SHEgas Led the

efforts to obtain the store's receipts from the employees (e.qg., T. Tr. 266-

267); and he was a hight 1ikely suspect in the shooting. Wright acknowledged

during his trial testimony that the State intended to recommend 20-year

concurrent sentences, despite his role in the crime, in exchange for his

testimony against Warren McCleskey. (Tr. T. 646-647; 682-683(). The District
i

Court later found that Wright's testimony "was cbviously impeachable." (J.A.

go). 14

Just before it retired to deliberate on guilt or innocence, i

jury heard another witness, an apparently neutral third Ll en

delete

14 Indeed, the District Court noted that there was "some question

whether Ben Wright's testimony on the fact of the murder would have-been—2—
admissible at all" under applicable Georgia evidentiary rules, see 0.C.G.A.
§24-4-8, "absent corroboration by [informant] Evans' testimony" (J.A. 99 n. 8)

—- although the District Court also noted that the Court of
Appeals, on Mr. McCleskey's earlier appeal, had viewed the likely impact of
Georgia law differently. (Id.).

\ recount awn \by

guste Closer ostensible jailhouse confession{| That witness was

" Lt —————————

Offie Evans. (T. Tr. 865-885).

Apart from the confessions reported by informant Evans and co-defendant

Wright, the State's case against Mr. McCleskey on the murder charge!” rested

largely upon an effort to place the murder weapon in McCleskey's hand. As—S—

S~treticatetabeve, Both WR a 8 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. T. 649; 727). Yet on

cross—-examination, Wright admitted that he, not McCleskey, had personally

carried the .38 pistol for weeks at a time prior to the crime. (J.A. 16; T.

Tr. 682). Moreover, Wright's girlfriend was confronted, on cross-examination,

with evidence that she had informed police, on the day she was arrested, that

it was Wright, not McCleskey, who had carried a .38 pistol, while McCleskey

"tote[d] af .45." (J.A. 11-14; T. Tr. 631-634).

2 The Issue For The Jury: Malice Murder

At the close of the guilt phase, the Superior Court instructed the jury

on theories of malice murder (T. Tr. 998-999) and of felony murder. (T. Tr.

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

informed the jury that "[t]he homicide is committed in the perpetration of a

15 Mr. McCleskey was convicted of two counts of armed robbery, for the
Dixie Furniture Store robbery and another, unrelated robbery -— not under
challenge here —- for which he is presently serving consecutive life
sentences. McClesky v. State, 245 Ga. 108, 263 S.E.2d146, 147 (1980).

felony when it is committed by the accused while he is engaged in the

performance of an act required for the full execution of such a felony{(" (T.

Tr. 1000) (emphasis added), and that the jury should convict "if you believe

and find beyond a reasonable doubt that the homicide alleged in this

indictment was caused by the defendant while he, the said accused, was in the

commission of an armed robbery . . . ." ad.) .1°

During its deliberations, the jury sought further instructions on the

issue of malice murder. The Superior Court repeated the instructions set

cof} above. (T. Tr. 1007-1009). Ten minutes later, the jury returned,

3S well as
finding Mr. McCleskey guilty of malice he ad Two counts of armed robbery.

(T. Tr. 1010).

II. ‘The District Court's Ruling

The District Court's initial approach to Mr. McCleskey's Massiah claim

Vos determined by its concern with the State's defense of abuse of the writ.

At the outset of the July 8, 1987 hearing, the Court invited oral argument
ot

from the parties on the issud

live testimony © (R4- 17-52), and finally, engaged in an extensive

(Ent Sie)
16 The court had earlier charged the jury generally concerning the

doctrine of "parties to a crime," as follows:

(R4- 4-13), then received exhibits and heard

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).

colloquy with counsel (R4- 53-120) before satisfying itself that the merits

should be entertained.

In its written order, the District Court MH ise’ made comprehensive

findings on the issue of abuse of the writ. The Court first addressed the

State's defense of deliberate abandonment:

[Pletitioner 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 cbvious that
it could not succeed given the then-known facts. . . Abandoning a
claim whose supporting facts only later become evident is not an

o t that "for strategic, tactical, or any other reasons .
. «. can fairly be described as the deliberate by-passing of state
procedures." Fay v. Noia, 372 U. S. 391, 439 (1963), quoted in
Potts v, Zant, 638 F.2d 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
gtat-es, 373 U.S. 1, 13 (1963).

(J.A. 83). Turning to the issue of "inexcusable neglect," the Court followed

controlling circuit precedent, 17 reasoning 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. Petitioner's counsel represents, and the state has not
disputed, that counsel did conduct an investigation of a possible
Massiah claim prior to the first federal petition, including
interviewing "two or three jailers." . . . The state has made no showing
of any reason that petitioner or his counsel should have known to
interview Worthy specifically with regard to the Massiah claim. The
state argues that petitioner's counsel should have at least interviewed
Detectives Harris and Dorsey and Deputy Hamilton. Given that all three

(NZ any knowledge of a request to moje Evans next to McCleskey, it is
\J %

Co od

17 In Moore v. Zant, 809 F.2d 702 hi (11th Cir. 1987) (en banc) 2 4 . ’ . [4

remanded, Moore v. Zant, U.S. , S.Ct. (1989), rev'd on other grounds,
Moore v. Zant, F.2d 11th Cir. 1989) (en banc), the Eleventh Circuit

e 1ssue o use oO e writ, a applican
O chargeable with "counsel's actual awareness of the factual and legal

bases of the claim at the time of the first petition and with the knoweldge
that would have been possessed by reasonably competent counsel at the time of
the first petition." 824 F.2d at 851.

on 19

a.a.

(J.A.

difficult to see how conducting such interviews would have allowed
petitioner to assert this claim any earlier.

84-85) .

The District Court concluded that

the petitioner's Massiah claim as it is currently framed is not an abuse
of the writ because it is based on new evidence. Petitioner's failure
to discover this evidence earlier was not due to inexcusable neglect.

85).

Turning to the State's defense of harmless error, the District Court,

made express findings before concluding that Offie Evans' "testimony about

petitioner's incriminating statements was critical to the state's case," and

that the admission of Evans' testimony could not be deemed harmless:

There were no witnesses to the shooting and the murder weapon was
never found. The bulk of the state's case against the petitioner
was three pronged: (1) evidence 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 cbviocusly
impeachable. . . . Because the court cannot say, beyond a
reasonable doubt, that the jury would have convicted petitioner
without Evans' testimony about petitioner's incriminating
statements, petitioner's conviction for the murder of Officer
Schlatt must be reversed pending a new trial.

(J.A.89).

D. The Holding of the Panel

1. Abuse Of The Writ

The panel's decision rests on the express assumption "that McCleskey was

unaware of both [informant Evans' 2l-page statement and the existence of

Captain Worthy]" when he filed his initial petition. (J.A 123). On that

assumption, the panel stated, the critical legal question was "whether

McCleskey's unawareness of the factual bases for his Massiah claim at the time

of his first federal habeas petition is sufficient to justify his failure to

present the claim." (Id.).

In answering that question, the panel faulted the District Court for

"misconstru[ing] the meaning of deliberate abandonment." (J.A. 124). The

panel reasoned that since Mr. McCleskey's attorneys had been aware of the

legal issue, (J.A. 125), it was appropriate to impute to them some unspecified

knowledge of the facts as well. The panel concluded that, since counsel "did

not accidentally faifto include the Massiah claim in the federal petition, but

‘made a knowing choice not to pursue the claim after having raised it

ed ;
previouslyj" (J.A. 125), the decision not to go forward with the Massiah claim

Ly federal court "constitutes prima facie evidence of deliberate

aband omment." (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.

(J.-A. 126).

The panel criticized counsel's investigation of the Massiah claim as

"somewhat lacking" (J.A. 126). The panel specifically faulted counsel: (i)

for his failure to have interviewed the two Atlanta detectives or the jailor

mentioned by informant Evans (J.A. 126-127 n.12); and (ii) for his failure to

have located jailor Worthy earlier. The panel dismissed the significance and

the utility of the 21-page statement which had been repeatedly withheld by the

State —— calling it "[a]t most . . . simply the catalyst that caused counsel

to pursue the Massiah claim more vigorously" (J.A. 128) —— and focused instead

af,

tne

| District
Court's

we
\ sh

on the testimony of Worthy, which it called "[t]he key piece of evidence."

(J.A. 128) The panel stated that McCleskey's attorneys "had not presented any

reason why counsel would have been unable to contact Ulysses Worthy back in
Shown tha

1981 . Ti a more extensive effort at that time . . . would

not have turned up Worthy." (J.A. 128). 18

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.

7.A. ).2°

1¥ on rehearing, Mr. McCleskey noted for the panel's consideration that
jailor Worthy was among literally hundreds of jailors assigned to the Fulton
County Jail in 1978. His name surfaced only after Mr. McCleskey's attorneys
managed to obtain informant Evans' 2l-page statement and were questioning
Atlanta Dectective Harris about where the statement had been taken. (R4-
11952). See Suggestion for Rehearing In Banc, dated December 11, 1989, at 21.

19 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.2d at 349-350 n. 12). Yet*

ignored both (¥) the District Court's express finding that la
counsel's actions on this point were no le er all the
circumstances, and (ii observation that the detectives’ genial of all ca. i

misconduct, under oath. during federal h ain that

Conducting such interviews would [not] have allowed om an to assert this
claim any earlier." (App. A, at 22-25).

R Tn fauttiv
petitioner for failing to "present[] any

reason why counsel woul ve been unable to contact Ulysses Worthy back in
1981 when the first federal habeas petition was filed\" (App. C, 890 F.2d at 9.

0) Fo reasons §* hewevex., Jwewe evident from the record. First, Worthv'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 21-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.

Ln assertive
Finally, Ghe-pandk-neted that petitioner had "not shown that a more

extensive effort at that time to track down persons with information as to

pre sort")

The panel made no effort to reconcile its own findings with the District

Court's express finding that counsel's investigation had been "'reasonably

competent'" (J.A. 84-85) and that petitioner had not been guilty of

inexcusable neglect under the circumstances. (J.A. 85).

2. Harmless Error

In assessing the contribution made by Evans' testimony to the State's

homicide case against Mr. McCleskey, the panel apparently drew its view of the

facts neither from the trial transcript nor from the District Court's te

factfindings, but instead from a brief summary of the crime contained Te

1980 opinion by the Supreme Court of Georgia on McCleskey's direct appeal. 20

In consequence, the panel found that "[t]he officer was killed by the man who

entered and secured the front of the store while the other three men were in

the back)" (J.A. 133)) and that "McCleskey was identified by two of the store

ersonnel as the robber who came in the front = ( d.) The panel also

found that that "the officer was killed by a bullet from a .38 caliber Rossi

handgun)" (id.) and that McCleskey was tied to the Rossi by the State's

ii (fa. ) =

Relying on this "substantial amount of circumstantial evidence" (id.),

the panel concluded that the

\"p +he pane naglected.

what ired in the county jail during the)/summer of 1978 would not have
J a Worthy\" (App. C, 890 F.2d at 350) { Fhe District Court diowevex

that,_reasonably competent counsel could not have been expected
O uncover DL ay (App. A, at 24-25).

ssh

The panel explicitly noteg at the outset of its opinion that its
"statement of facts is taken from the Georgia Supreme Co S oplnion on
direct appeal." (J.A. 113). The account of the crime later presented by the
panel, which forms the foundation for its consideration of the harmless error
issue, is in all material respects that same account. (Compare J.A. 113 with
J.3JA. 1133).

: @—

evidence other than Evans' testimony presented in the case presents such
clear indication of McCleskey's quilt, [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).

The panel dismissed the effect on Mr. McCleskey's jury of Evans' account

of McCleskey's boast -- "I would have shot my way out if it had been a dozen

police officers" -- as "not crucial" to the State's effort to demonstrate that

Mr. McCleskey was guilty of murder with malice. (The panel followed an

earlier decision of the Court of Appeals, observing that the prosecutor had

advanced two other arguments, in addition to the boast, to support his claim

‘ i 21
that McCleskey acted with malice (J.A. 134 y X Fd,

The panel also dismissed the impact[of Evans' testimony that McCleskey "S=.l.

On had confessed to using makeup En the jury's verdict) Since other witnesses

had identified McCleskey as the robber who entered by the front door, the

clariticition of the discrepancies in the description proffered by a key State

eyewitness were "'relatively unimportant.'" (J.A. 133).

Turning from the guilt-or-innocence verdict to the jury's decision to

impose a death sentence, the panel found "no reasonable likelihood" that the

jury's decision was affected by Evans' testimony, reasoning that the

2k The panel cited the Court of Appeals' earlier conclusion that the
"statement by McCleskey was not developed at length during Evans' testimony
and was mentioned only in passing by the prosecutor in closing rae J 4

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prosecutor did not introduce Evans as a witness at the sentencing phase or

dwell upon his testimony in his closing sentencing argument. (J.A. 134) 22

SUMMARY OF ARGUMENT

22 Tne panel did not expressly note that neither the prosecutor nor the
defense attorney presented any additional evidence at the sentencing phase of
the trial. (See T. Tr. 1016). Both parties thus relied on the evidence they
had presented at the guilt-or-innocence phase, leaving Offie Evans as the last
witness but one who testified before the jury.

numerous Squarely controlling precedents decided by the
Court 1tsel€ over More than half a century and. the

ARGUMENT | repezted.f Considered. decisions
of Cougress addresswg the

Speeific 15sue
MR. MOCLESKEY AND HIS COUNSEL DID NOT (I) DELIBERATELY
ABANDON HIS MASSTAH CIATM, (II) ACT WITH INEXCUSARIE | presented
NEGLECT, OR (III) OTHERWISE ABUSE THE WRIT OF HARFAS
CORPUS UNDER FEDERAL STAMDARDS

The panel's judgment rests principally upon its conclusion that Mr.
[-

McCleskey -- by i (second federal petition asserting his

Sixth Amendment claim under Massiah v. United States, 377 U.S. 201 (1964) _and
enl b

United States v. Henry, 447 OS 28 seo ha abused the writ of habeas

To affirm 2.0
corpus. Tepes Fo evatute that judgment, -

habeas corpus

jurisprudence, _

A. ABUSE OF THE WRIT — THE DOCTRINAL BACKGROUND

1. The Cammon Iaw

Although the origins of the writ of habeas corpus ad subjiciendum are
4

murky, and its earliest forms and usages, the subject of scholarly debate?3,

there is general agreement with Blackstone's assessment that it is "the most

celebrated writ in the English law:" 24

It is "a writ antecedent to statute, and throwing its root deep into the
genius of our common law. . . .It is the most important writ
known to the constitutional law of England, affording as it does a swift
and imperative remedy in all cases of illegal restraint or confinement.

23 See 9 W.Holdsworth, A History of English Iaw 104-112 (2d ed. 1938);
W. Church, A Treatise on The Writ of Habeas Corpus 3 (2d ed. 1893); Jenks, The
Story of Habeas Corpus, 18 L.Q.Rev. 64 (1902). See also Oaks, Habeas Corpus in
the States —- 1776-1865, 33 U. Chi. L. Rev. 243 (1965)-and authorities cited
at note 2; Note The Freedom Writ -- The Expanding Use of Federal Habeas
Corpus, 61 Harv. L. Rev. 657 (1948) and authorities cited at note 3. 5 \o

24
3 W. Blackstone, Commentaries on the Iaws of England 129.

26 —_—

the Court would have to repudiate 300 years =t)

Anglo- Auieriian po

It is of immemorial antiquity, an instance of its use occurring in the
thitjey-third year of Edward I.

Fay v. Noia, 372 U. S. 391, 400 (1963), quoting Secretary of State for Home

Affairs v. O'Brien, [1922] A.C. 603, 609 (H.L.).

For at least the past 300 years, since Parliament's passage of the

Habeas Corpus Amendment Act of 1679,2° , English law has refused to treat a

judicial denial of habeas corpus relief as res judicata; a habeas claim,

dismissed by one court, could be succesfively presented without limit: S )

It was always © to applicant for it, if defeated in one Court, at
once tS renew his application to afjother. No Court was bound by the
view taken by any other, or felt itself obliged to follow the law laid
down by it. Each Court exercised its independent judgment upon the
case, and determined for itself whether the return to the writ
established that the detention of the applicant was in accordance with
the law. A person detained in custody might thus proceed from court to
court until he obtained his liberty.

Cox v. Hakes, 1890 A.C. 506, 527.

Moreover, while a judical decision denying relief allowed further

ruliv (me worl adjudication, a wake discharging an applicant was not subject to further pion'T DIST

CRARC
judicial challenge: "[H]is right to his liberty could not afterwards be AePLIHNT]

TW g
called into question. There was no power in any Court to review or control 55u%D x

eM re
the proceedings of the tribunal which discharged him."2® To 27

pec 2

APP ULNT

25 goby BE 31 Car. 2, ch. 2. See Goddard, A Note on Habeas Corpus, 65 L. Q. HT
Rev.30, 32-33 (1949) BeoY

oe Bers
Id. at 528. This rule was not altered in Great Britain until 1959, TH%® 7

when the Queen's Bench Division held in In re Hastings (No.2) [1959] 1 Q.B.D. co okt
358 that a Divisional Court -- faced with a renewed application on the same
evidence and the same legal ground —- "having once exercised its discretion"
had "an inherent jurisdiction to refuse . . . to hear the same matter argued
again." The following year, the Hastings decision was modified in part by The
Administration of Justice Act, 1960, 8 & 9 Eliz. 2, ch. 65, Section 14 (2),
which permits a second application if "fresh evidence" is offered by the
applicant.

” The Early American Experience

CY *° the fled ing states at the time of the American Revolution, "the

privilege of the writ of habeas corpus was transmitted into American law

principally through tradition and the common law." Oaks, Habeas Corpus in the

States —— 1776-1865, 33 U Chi. L. Rev. 242, 247 (1965). In consequence, most

state courts throughout the nineteenth century held that an adverse habeas

corpus ruling was not res judicata, and that successive applications should be

entertained.2’ Some states eventually did, by statute, begin to place

constraints on the use of successive applications, 28 but such statutes

typically provided that second applications should be entertained if newly

discovered evidence became available.??

27 see, e.q., In re Perkins, 2 cal. 424,]430 (1852) ("The statute never
contemplated that a judgment upon on) writ shoyd be a bar to any further
proceeding, but looks to a different result; and any prisoner may pursue his
remedy of habeas corpus until he has exhausted the whole judicial power of the
State. How far judges would go in their examination after a case had once
been determined, is a question which must rest exclusively in their own sound
judgment; but a previous examination cannot prevent their right to re-examine
the whole case if they should think it proper to do so"); In re Snell, 31
Minn. 110, 112 (1883) ("In some courts there ap o) a disposition make
the right to a second writ a question of expediency for the court to
determine. This occurs to us to be a dangerous notion. The ‘writ of liberty!
is a writ of right. When we consider its origin, its history, and its
purposes, the transcendent necessity of its issuance, dependent upon the right
of the petitioner and not upon the discretion of anybody, is incontestable");
People v. Brady, 56 N.Y. 182, 192 (18x); In re Blair, 4 Wisc. 522, 532
(18xx) «

28 See, e.q., Ex parte Turner, 36 Mo. App. 75, 77 (1889); In re
Brittain, 93 N.C. 587, 588 (1885); Hibler v. State, 43 Tex. 197 (1875).

29 gee, e.d., Hibler v. State, 43 Tex. 197, 199 ("A party may obtain the
writ of habeas corpus a second time by stating in the application therefor
that since the hearing of the first application important testimony has been
obtained, whcih it was not in his power to produce at the former hearing.")
Contra Ex parte Pattison, 56 Miss. 161 (1878).

5 2

At the federal level, neither the text of Constitution, Art. I, § 9, cl.

2, nor the Federal Tidy Act of 1789, 1 Stat. 81 (1789) —-- both of which

explicitly provided for the writ -- fully defined its procedures or scope.

Consequently, most early peiual cones Sogn the English practice
ee dake

permitting successor petitions. For example, in Ex parte Kaine, 3 Blatchf. 1

~
(S.D.N.Y. 1853), 14 Fed Cas. p. 78 (Case No. 7, 597), a district court held

(Eg

that federal practice on habeas applications would be governed by the common

law:

[A]ccording to that system of laws, so guarded is it in favor of the
liberty of the subject, the decision of one court or magistrate . . .
refusing to discharge the prisoner, is no bar to the issuing of a second
or third or more writs, by any other court or magistrate having
jurisdiction of the case; and that such court or magistrate may remand
or discharge the prisoner, in the exercise of an independent judgment
upon the same matters.

1d. at 80.39 i

30
In another|\often-cited federal case, Ex parte Cuddy, 40 F. 62

{C.C.8.D. Cal. 1889), Justice Field, sitting as a circuit justice, was
presented with a second habeas petition by an applicant whose initial a

application had been denied by the Co eh-appeadl, 1Nn an opinion by Mem—,

Justice Harlan. Cuddy, 131 U.S. 280 (1889). Justice Field noted that 4
Court had rejected Cuddy's application, in part, because the record he ce.)
presented was not sufficient to clarify a crucial matter at issue, and that,
under the circumstances, the Court presumed that the trial court had acted
properly. 40 F. at 64. On his successive application, Cuddy sought to
supplement the record, adding the missing facts.

Addressing his application, Justice Field first considered the legal
background:

The writ of habeas corpus, it is true, is the writ of freedom, and is so
highly esteemed that by the common law of England applications can be
made for its issue by one illegally restrained of his liberty to every
justice of the kingdom having the right to grant such writs. . . The
doctrine of res judicata was not held applicable to a decision of one
court or justice thereon; the entire judicial power of the country could
thus be exhausted. Ex parte Kaine, 3 Blatchf. 5, and cases there cited.
The same doctrine formerly prevailed in the several states of the Union,
and, in the absence of statutory provisions, is the doctrine prevailing
now.

3. The Modern Federal Authorities

a. The Court's Pre-1948 Cases

While the federal courts had decided many habeas corpus cases under the

Act (8) 1267 by the early twentieth century, 31 this Court first spoke

authoritatively to the question of successive petitions in Salinger v. Ioisel,

265 U.S. 224 (1924). Salinger had successfully avoided federal mail

fraud charges in the State of South Dakota through "a protracted resistance"

had.
in the courts. MEFFICH TFS Ca arEcreEats obtained adverse

habeas rulings, on essentially the same ground, from federal district and

circuit courts in ip Ladd and from federal district and circuit

40 F. at 65.

Noting, however, that "[i]n many instances great abuses have attended
this privilege," Justice Field held that "while the doctrine of res judicata
does not apply . . . the officers before whom the second application is made
may take into consideration the fact that a previous application has been made
to another officer and refused; and in some instances that fact may justify a
refusal of the second." Id. 65-66.

In Cuddy's case, Justice Field reasoned, the second application was
being made "upon the same facts presented, or which might have been presented,
on the first." The opinion stressed that "there are no new facts which did
not exist" earlier, id. at 66, and that Cuddy neither (i) attempted to make a
second, supplemented application before seeking to appeal nor (ii) suggested,
at any point during his appeal, "that the record did not fully disclose [his]
. . « case." Id. Under those circumstances, the writ was dismissed.

31 (professor Dobie, surveying T.30 the federal judicial treatment
of habeas corpus cases under the Act © , wrote: "[T]he federal courts
have grounded their decisions in habeas corpus cases not on literal
technicalities but on a broad conception of essential justice. The Supreme
Court has manifested somewhat the spirit of a chancellor in formulating a
decree in equity." Dobie, Corpus in the Federal Courts, 13 Va. L]Rev.
433, 458 (1927). w—

Es
30

courts in Iouisiana -- all prior to his presentation of the application

eventually considered on certiorari by the Court. 265 U.S. at 228.

Although the Solicitor General strongly urged that the Co PE should
Sort. to th beas Corp YSss

invoke the doctrine of res judicata to bar Salinger's writ the Court declined \.——

to do SO:

We are unable to go so far. At common law the doctrine of res judicata
did not extend to a decision on_habeas corpus refusing to discharge the
prisoner. The state courts generally have accepted that rule where not
modified by statute; the lower federal courts usually have given effect
to it; and this Court has conformed to it and thereby sanctioned it,
although announcing no express decision on the point.

265 U.S. at 230. Instead, after reviewing the federal habeas statute 32 —-

which directed the court "to dispose of the party as law and justice may
P a ha

require, "(and the lower federal cases applying the statute, the Court
Na”

declared that

each application is to be disposed of in the exercise of a sound
judicial discretion guided and controlled by a consideration of whatever
has a rational bearing on the propriety of the discharge sought. . .
[including] a prior refusal to discharge on a like application.

Id. Since the district and circuit courts had exercised their discretion to
[=

reach the merits of Salinger's claims, the Court Glofas well, rejecting the

merits as insufficient. Id. 232-238.

The Court clarified oT hat "sound judicial discretion" might require

in Wong Doo v. United States, 265 U.S. 239 (1924), another successive petition

ee case renderd the same day as Salinger. Wong Doo, seeking to avoid

deportation, had filed an initial petition asserting two grounds. The

government's return had placed both grounds at issue. Yet at his initial
on

federal hearing, Wong Doo presented evidence and sought adjudication|only gna

32 § 761, Rev. Stat., The Habeas Corpus Act of Feb. 5, 1867, ch. 28, 14
Stat. 385.

the =
the first ground. When nts initial litigation proved unsuccessful,

Wong Doo filed a second federal application, reasserting the abandoned second

ground. 265 U.S, at 240.
was

The Court, though reiterating that res dnl es

Wong Doo's application, nonetheless affirmed the lower court's dismissal.
us Rnd the

Since Wong Doo had failed to offer any proof on claim at initial

federal hearing -- even though, the Court observed, he "had full opportunity"
~~

to do so, since the proof "was accessible all the time, \" 265 U.S. at 241, his

claim was properly dismissed. "To reserve the proof for use in attempting to

support a later petition, if the first failed," the Court held, "was to make

an abusive use of the writ of habeas corpus." Id.

In the next twenty years, the Le decided a number of habeas claims

brought on second applications, some of them favorably to the applicant. 33

. The most significant was Price v. Johnson, 334 U.S. 266 (1948), in which a

federal prisoner alleged, on his fourth federal application, that the

Goverrment had induced a key witness to change his testimony during the trial,

thereby suborning perjury. The exasperated lower court denied relief,

stressing (i) that Price had litigated two prior habeas petitions through the

courts of appeals, Price v. Johnston, 161 F.2d 705, 706 (9th Cir. 1947), (ii)

33 In United States ex rel. McCann v. Adams, 320 U.S. 220 (1943), for
example, the Court held that the lower courts should not have dismissed a
second habeas petition -- brought by the relator after this Court itself had
denied his first application, see Adams v. United States ex rel. McCann, 317
U.S. 269 (1942) -- since the issue presented in the second application as
explicitly withdrawn from consideration on the habeas corpus proceedings
previously before the Circuit Court of Appeals [and] . . . has never been
adjudicated on its merits by the lower courts." 320 U.S. at 221.

In Waley v. Johnston, 316 U.S. 101 (1942), the Court held that, when an
applicant had an excuse for his failure to present a claim on an earlier co
nobis application, a second petition ought not be denied without a hearing.
316 U.S, at 105,

that Price had proffered "no reason or excuse . . . for his failure to set

[the prosecutorial misconduct claim] up in . . . his prior petitions," id. at

707, and (iii) that, since the witness had changed his testimony openly during

the course of the trial, Price appeared to know "as much about the [alleged]

misconduct at the time it is said to have occurred as he knows now," id.

Despite these considerations, the Court refused to dismiss Price's writ:

If called upon, petitioner may be able to present adequate reasons
for not making the allegation earlier, reasons which make it fair
and just for the trial court to overlook the delay. The primary
purpose of a habeas corpus proceeding is to make certain that a
man is not unjustly imprisoned. And if for some justifiable
reason he was previously unable to assert his rights or was
unaware of the significance of relevant facts, it is neither
necessary nor reasonable to deny him all opportunity of cbtaining
judicial relief.

334 U.S. at 291.

b. The Congressional Choice

Price was decided one month before Congress enacted a comprehensive

codification of the Judicial Code which included, for the first time in eighty

years, a new federal statute addressing the writ of habeas corpus. In drafting

the statute, which became 28 U.S.C. § 2244, Congress carefully considered

pleas by respected jurists, among others 3% for a provision that would sharply
)

curtail the liberal federal policy allowing successive HY

34 See, e.q., Report of the Judicial Conference of Senior Circuit Judges
18 (1945); Report of the Judicial Conference, Rep. Att'y Gen. 67-69 (1943).
See also Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 172
(1948) (decrying "evils . . . [from] this flood of litigation"); Goodman, Use
and Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313 (1948) (lamenting that
during the preceding decade, 26 inmates of Alcatraz had filed 167 petitions).
Other judges expressed their dissatisfaction in reported opinions. See, e.q.,
Dorsey v. Gill, 148 F.2d 857, 864 (Ap. D.C. 1945), cert, denied, 325 U.S. 890

(1945) (cataloging at great length the dimensions of the federal burden and the
possible remedies that could be adopted).

applications. However, the House Judiciary Committee, in its report on the

1948 legislation, emphasized that its intent in presenting proposed Section

2244 was to "make[] no material change in existing practice." H.R. Rep.308,

80th Cong., 1st Sess. A178 (1947).3°

The Senate Judiciary Committee, for its part, while accepting other

recommendations from the Judicial Conference, chose to modify the language of

its proposed Section 2244 more clearly to emphasize that federal courts would

retain their tradti equitable power to entertain successive petitions.

"The original language of the section," the Senate Committee feared, might be

read to

deny] to Federal judges the power to entertain an application for
a writ of habeas corpus where the legality of the detention has
been determined on a prior application. The amendment [would] .
. modify this provision so that, while a judge need not entertain
such a later application for the writ under such circumstances, he
is not prohibited from doing so if in his discretion he thinks the
ends of justice require its consideration.

S. Rep. No.1559, 80th Cong. 2d Sess 9 (1948).

Section 2244, as revised, passed the full Senate and became law on June

36 25, 1948. During the succeeding eighteen years, literally dozens of efforts

35 The House Judiciary Committee was far from oblivious to the problem
of abusive petitions; on the contrary, it explicitly noted that "[t]he
practice of suing out successive, repetitious, and unfounded writs of habeas
corpus imposes an unnecessary burden on the courts." H.R. Rep. 308, 80th Cong.
1st Sess. A178 (1947). Yet the Report concluded that the current procedures
were adequate to protect against abuses: "the courts have consistently
refused to entertain successive "nuisance" applications for habeas corpus."

(Id.)

36 As enacted, § 2244 read:

No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment of a court of the
United States, or of any State, if it appears that the legality of
such detention has been determined by a judge or court of the
United States on a prior application for a writ of habeas corpus

were made to persuade Congress to narrow § 2244. As Justice Harlan

subsequently noted,

[c]oncern with existing and potential abuse of the remedy . . . led to
proposals that successive applications . . . on grounds previously
avallable would be ly barred. «.. . E.g., HR 4232, 79th Cong, 24
Sess. These proposals were rejected in favor of the traditional
discretion exercised by courts with respect to successive applications.

Sanders v. United States, 373 U.S. 1, 26 (1963). See also H.R. Rep. No. 1892,

89th Cong., 2d Sess. 3 (1966) (legislation specifically directed to 28 U.S.C.

§ 2244 was proposed "in the 84th, 85th, 86th, and 88th, as well as [the 89th]

Congress . . . sponsored by the Judicial Conference of the United States").

None of these efforts succeeded.

Ce Sanders v. United States And
Its Congressional Ratification

In 1963, the Court decided Sanders v. United Shatstal

Seiemsamestasdiusismittmiie (Fon Tetuished between

two basic types of successive petitions and announced different modes of

Gsusiioiai analysis appropriate to each. f The truly "successive petition," the

ar oe held, presents a claim previously adjudicated, adversely, on its merits.

373. U. 8, at 15 rn

wo oF (contrasted with successive petitions are repeater applications asserting

claims that, for variety of reasons, were never judicially determined on an

earlier application. Id. at 17. "Full consideration of the merits" of these

latter applications, the Court held, "can be avoided only if there has been an

abuse of the writ. « « JM 373 0. 8S. at 17.

and the petition presents no new ground not theretofore presented
and determined, and the judge or court is satisfied that the ends
of justice will not be served by such inquiry.

To determine whether a claim is abusive, Sanders directed the federal

courts to|principles of equity jurisprudence: +he. hi storically aStaklished

"[H]abeas corpus has traditionally been regarded as governed by
equitable principles. United States ex rel. Smith v. Baldi, 344 U.S.
561, 573 (dissenting opinion). Among them is the principle that a
suitor's conduct in relation to the matter at hand may disentitle him to
the relief he seeks. . . Thus, for example, if a prisoner deliberately
withholds one of two grounds for federal collateral relief at the time
of filing his first application, in the hope of being granted two
hearings rather than one . . . he may be deemed to have waived his right
to a hearing . . . The same may be true if, as in Wong Doo, the prisoner
deliberately abandons one of his grounds at the first hearing. Nothing
in the traditions of corpus requires the fed
tolerate needless pi itigation, or to entertain colla !
proceedings whose only purpose is to vex, harass, or delay.

372 U. St, at 18.

For further guidance, the Court directed the lower courts to its

simultaneous rulings in Fay v. Noia, 372 U.S. 391, 438-440 (1963), and

Townsend v. Sain, 372 U.S. 293, 317 (1963), whose principles, the Court held,

£2

"govern equally here." 373 U.S. at 18. Fay and Townsend imeiaasd propound a

two-pronged test for determining whether a habeas applicant should be heard on

the merits of his claims: (i) whether s/he "deliberately abandoned or

bypassed" an opportunity to assert the claim; and if not (ii) whether his/her

failure to do so was somehow a product of "inexcusable neglect."

(1) "Deliberate Bypass"

Deliberate bypass or abandorment, the Court explained in Fay, should be

IY;
measured in accordance with =H ~V

the classic definition of waiver enunciated in Johnson v. Zerbst, 30
U.S. 458, 464 [1938] --{an intentional relinqui or orment of
a known right or privilege."

’ dalihavratel

372 U. S. at 439. In deciding whether an applicant has/bypassed or abandoned
re\ecked.

a claim, the Court any tendency "to introduce legal fictions

into federal habeas corpus." id. Instead, the Court insisted, is

must focus upon the applicant's actual state of mind, and it must probe, not

only whether his decision was voluntary, but whether it was "knowing and

intelligent" as well.

In so holding, the Court acted consistently with — prior federal
Ww
ME —

os BES reservelt condemnation for habeas applicants, like Wong Doo, who had

deliberately held back evidence that was already in their possession or was

readily at hand. 3’

When Congress acted to modify § 2244 in 1966, it adopted the distinction

the Court had drawn in Sanders. We respectfully refer the Court to the Brief

on Behalf of Resporeant) G1-25) Zant v. Moore, ‘ua, , S.C. ase a oe

Shovt/iy
“priori though the House Judiciary Committee indicated that, in fashioning (s)

2244 (b), it intended to provide "for a qualified application of res

judicata,! H.R. Rep. No. 1892, 89th Cong., 2d Sess. 8 (1966), the Senate rs

> \Jdenti fied. \ preclysion princ ple as
Report i the rea? target of the tebe those

"applications either containing allegations identical to those asserted in a

previous application that has been denied, or predicated upon grounds

37 gee, e.q., Swihart v. Johnston, 150 F.2d 721, 723 (Sth Cir. 1945) ,
(while second petition did include evidentiary allegations that first
petition did not, "[o]bviocusly . . . these matters (if true) were known to
appellant when he filed the [earlier] petition"); Garrison v. Johnston, 151
F.2d 0 th Cir. 1945) (same); Turner v. United States, 258 F.2d 165,
167 (D. C. Cir. 1958) (allegations could have been raised in
prior application, and a ant presented "[n]o indication of any
'justifiable reason 'unawareness' to explain their omission).

obviously well known to them when they filed the preceding application." S.

Rep. No. 1797, 89th Cong., 2d Sess. 2 (1966) .°8 revisited )

When Congress in 1976 nddvenahd the question of successive petitions a=R.

J-eecomeime —-— in Rule 9(b) of the Rules Governing Section 2254 Cases -- it

al asserting new claims on] second [application absent proof of deliberate bypass

-r

33 The Senate Report attached a letter from the Committee on Habeas
Corpus of the United States Judicial Conference. The letter indicates that
the Committee, which had played a major role in drafting the provision,
believed that its proper targets were state prisoners who had used successive
applications to present "additional grounds well known to them when they filed
the preceding application." Senate Report, supra, at 5.

or inexcusable neglect. >? In its own subsequent decisions, the Court has

hewed to these standards set forth in Sanders, § 2244 (b), and Rule 9 (b).40

39 Exercising its reserved authority under § 2072, Congress did not
initially allow the Judicial Conference Rules to become law. Instead, in
response to sharp criticism from some quarters, Congress voted to delay the
effective date of the proposed rules in order to afford itself the opportunity
to review and amend the rules if necessary. See Act of July 8, 1976, Pub. L.
No. 94-349, 90 Stat. 822. Pr —l

During House hearings in August of 1976, criticism of progposed Rule
9(b) centered on a phrase that would have permitted a district court to
dismiss a second petition asserting "new or different grounds [if] the judge

that the failure of the petitioner to assert those grounds in a prior
pe ltion is not excusable." (Emphasis added). Despite assurances by

ftsmen of Rule 9(b)| that this Language was intended to leave the ©
ly consistent with the appli e statutory provisions as

2255 cases and with the Supreme Court decision in Sanders v. United
States," other witnesses worried aloud that this language might constitute "a
covert effort to change existing law by use of the rulemaking process," id. at
23, substituting an undefined standard for "the 'deliberate ess Jest

eninciated in Fay v. Noia," and adopted in Sanders. Id., 24. 3
@& LTIn its ultimate Yeport on the proposed Riles, the Committee on the

ND recommended a change in the language of Rule 9(b):

a 8 a

[found]

new and undefined standard that gave a judge too broad a
discretion to dismiss a second or successive petition. The 'abuse
of writ' standard brings rule 9(b) into conformity with existing
law. As the Supreme Court has noted in reference to successive
applications for habeas corpus relief and successive § 2255
motions based upon a new ground or a ground not previously decided
on the merits, 'full consideration of the merits of the new
application can be avoided only if there has been an abuse of the
writ or motion remedy; and this the Government has the burden of
pleading.' Sanders v. United States, 373 U.S. 1, 17 (1963). See
also 28 United States Code, section 2244 (b).

wd The committee believes that the 'not excusable' language created a

H. R. Rep. No. 94-1471, 94th Cong., 2d Sess. (1976). On September 28, 1976,
Rule 9(b) was enacted into law. Act. of Sept. 28, 1976, Pub. L. 94-426, 90
Stat. 1335,

40 por example, in Smith v. Yeager, 393 U.S. 122 (1968) (per curiam),
the Court reviewed the case of an applicant whose counsel, on an initial
habeas application, had expressly opted to rest his client's coerced
confession claim on the trial record, declining to request a habeas hearing.
The Court held that counsel's decision did not constitute a binding es lo)

1ng evidentiary hearing) in support of the same claimg”on Smi
second application. Since the right to a habeas hearing had become eater in
the interval between the applicant's first and second applications, the Court
reasoned,

Wn relation to a claw wtially presented on a

Second. federal habeas Corpus application: pr

To sum up, the Court's principal decisions on deliberate bypass or

abandonment, Wong Doo, Price, Sanders/Fay and Smith, now fully ratified by

Congress, concur on the appropriate analysis of abusive conduct{ (L{f a2
L the a had.

E a’ opportunity to offer proof" on an earlier application

(ii) if that proof was "accessible all the timef" and (iii) if the applicant

offers "no reason for not presenting the proof at the outset," Wong Doo Vv.

United States, supra, 265 U.S. at 241, the applicant is guilty of a
delayed, presentation of the alam

deliberate bypass S an abuse. , on the other

hand, "for some justifiable reason, he was previously unable to assert his

rights . . . it is neither necessary nor reascnable to deny him all

opportunity of cbtaining judicial relief." Price v. Johnston, supra, 334 U.S.

at 291.

(ii) "Inexcusable Neglect"

The Court's doctrine on inexcusable neglect begins with Townsend v.

Sain, a right-to-a-federal-hearing case. The Court clarified in its

[wlhatever the standard for er may be in other circumstances,
the essential question here is whether the petitioner
'deliberately withheld the newly asserted ground' in the prior
proceeding, or ‘otherwise abused the writ.' 28 U.S.C. § 2244(b). .
. [P]letitioner should [not] be placed in a worse position because
his then counsel asserted that he had a right to an evidentiary
hearing and then relinquished it. Whatever counsel's reasons for
this obscure gesture of noblesse oblige, we cannot now examine the
state of his mind, or presume that he intentionally relinquished a
known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 464,
when the right or privilege was of doubtful existence at the time
of the supposed waiver. In short, we conclude that petitioner's
failure to demand an evidentiary hearing in 1961 . . . constitutes
no abuse of the writ of habeas corpus.

393 U.S. at 125-126.

disposition of Townsend that "inexcusable neglect" would require more than

mere "neglect;" indeed, the conduct apparently must so closely approach
manipulation

Gel iberats waebeiswior Tat a court can only attribute the neglect to
care. re

_F—taikh-eendtrh, not mere . us in Townsend, the Court declined to

brand as "inexcusable" a defense counsel's failure at trial to develop fully

claws the testimony of his own crucial expert witness.4! |

When In subsequent cases, the Court has faulted applicants who

<<
evideueceloffer no explanation or excuse for their failure to present ChaiE=ssdenc® in

x re ev:

“351 earlier applications) (ustice Powell] for example, ty ER oo y
-

PE ow) WHE

pearance i In Woodard v. Hutchins, 464 U.S. 377 (1984) (per curiam) | heselonly

avail - Ts 'Tin support of kés|claim of insanity/ was "the report of a

able (advanced)
at the =
twee [ a willing ness to sukvert ordarly |
Hose eacler \ Judicial process J”

appliea-
+\ OWS 4l Townsend sought a evidentiary hearing on a claim that his confessions

“had been the product of a drug-induced state brought on by the State's
administration of a "truth serum" during his custodial interrogation. 372 U.S.
at 295-303. Although there had been extensive expert testimony on the the
effects of the drugs during Townsend's state pre-trial suppression hearing and
during trial, his counsel had not fully developed the point that the drug
involved was "a truth serum" which might have prompted Townsend's confession.
372 U.S. at 321. The Court reasoned that

[tlhis fact was vital to whether his confession was the product of a
free will and therefore admissible. To be sure, there was medical
testimony as to the general properties of hyoscine, from which might
have been inferred the conclusion that Townsend's power of resistance
had been debilitated. But the crucially informative characterization of
the durg, the characterization which would have enabled the judge and
jury, mere laymen, intelligently to grasp the nature of the substance
under inquiry, was inexplicably cmitted from the medical experts!
testimony. . . . And the medical experts' failure to testify fully
cannot realistically be regarded as Twonsend's inexcusable default.

372 U. S. at 322. Thus although the counsel plainly erred, neglecting to ask
his own witness certain crucial questionns, the Court refused to brand his
conduct "inexcusable."

WR gs oH

No & — The Court Was alse rejected. )

forensic psychiatrist . . .[without any] expla[nation] why this examination

was not conducted earlier." 464 U.S. at 379-380 (Powell, concurring) 142

the applicant's only excuse for failing to carry forward a

prosecutorial misconduct claim was "the press of time during the first set of

collateral proceedings." 465 U. S. at 203. After reviewing the record, the

Court rejected this explanation, underscoring that (i) "almost two years [had]

. . .elapse[d] between the affirmance of [Antone's] . . . conviction and the

filing of his first motion for postconviction relief," 465 U. Sf: at 206 n.4;

(11) ‘shes Antone "continued to be represented throughout this period by his
asmuciyy a

trial counsel," id.; and (iil) 7 a stay had ce Bao granted by

the Court of Appeals, the "first federal habeas petition . . . was not

‘conducted under the pressure of imminent execution." Id.
\LWwhen \E was

by the lower courts has.
based wpov

€ applicant's discovery ay new evidence neither previously known to him

<Q.
mex nor %, Zeadily at hand. [CITES). a cases have followed Price v. Johnston/

er Statewen
the express of the S iy Committee on the Rules

that

"newly discovered

[]

evidence" ee one of several circumstances sufficient to excuse a prior failure

to assert a claim. See Advisory Committee Notes on Rule 9(b) I= Cf—United- 2

Stakes~ex ret StH Ve

’ ’

42 Justice Powell obviously searched beyond the pleadings to discern
whether a sufficient explanation for Hutchins' failure might appear from the
record itself. None did. ("He does not claim that his alleged insanity is a
recent development. In light of his claim that he also was insane at the time
of the crime, such an assertion would be implausible.") 464 U.S. at 380.

42
—

the preseutation of @ hew alam, in &

TF By coutrast federal habeos petitiou has
Second. ov <uccessve

Cousis teutly been held. excusable

rd i———

dis senting) —(rev-evid ence has recently come to light, and-the”

(iii) Other Inequitable Conduct

Sanders' catalogue of abusive behavior was not strictly limited to

instances of deliberate bypass or inexcusable neglect. Instead, emphasizing

that equitable principles govern habeas corpus generally, the Court

general axiom that "a suitor's conduct in relation to the matter at on ge]

disentitle him to the relief he seeks," Sanders v. United States, supra, 373

U.S. at 17. A federal court need not "tolerate needless piecemeal litigation,

or . . . entertain collateral proceedings whose only purpose is to vex,

harass, or delay." Jd. at 18.

Ae-ermiTrimay—ehis-stamdard-enioraces=the professional writ writers of

the sort Judge Goodman described in his article, "Use and Abuse of the Writ of
the. edu

Habeas Corpus," 7 F.R.D. 313, 315 (1948) (among Alcatraz inmates 1n

To curd Such abuses.
decade, 26 had filed a total of 167 petitions). the

called. for the lc
Co a judicial inquiry approprhate-te a chancellor in

equity: Has the applicant acted in good faith? Does s/he come to he

Chisterically couducted lay )

—ilE.

fe H Both these words auc the Courts reference

+ genera | equitable privedples Alumimwate the

limits of ts concept of "abuse _ “ \ega-

tiousness, harsssmeut. aud delay ad loug heey

fo tara dent hed. with

litigation with clean hands??? Should either party be estopped from asserting

a claim (or a defense) because of their prior conduct? 24

All of these questions, the Court in Sanders held,

are addressed to the sound discretion of the federal trial judges.
Theirs is the major responsibility for the just and sound administration
of the federal collateral remedies, and theirs must be the judgment as
to whether a second or successive application shall be denied without
consideration of the merits. Even as to such an application, the
federal judge clearly has the power -- and, if the ends of justice
demand, the duty -- to reach the merits.

373 U.S." at 18+=10,

B. THE DISPOSITION OF MR. McCIESKEY'S CASE

As we have seen, Sanders, § 2244 (b), and Rule 9(b) establish controlling

SsSarktions : —r
standards by which to evalua use of the writ. In determining

whether Mr. McCleskey's Henry/Massiah claim constitutes an abuse, the first

43 As Professor Dobbs notes, "unclean hands may be any sort of conduct
that equity considers unethical . . . This rule is that unrelated bad conduct
is not to be considered against the plaintiff. It is only when the
plaintiff's improper conduct is the source, or part of the source, of his
equitable claim, that he is to be barred because of this conduct. 'What is
material is not that the plaintiff's hands are dirty, but that he dirties them
in acquiring the right he now asserts. . . .'" D. Dobbs, Equity and Equitable
Remedies 46 (1973), citing Republic Molding Corp. v. B.W. Photo Utilities, 319
F.2d 347 (9th Cir. 1963).

44 Equitable estoppel, Professor Dobbs has explained, ordinarily "has
three important elements. The actor, who usually must have knowledge of the
true facts, communicates something in a misleading way, either by words,
conduct or silence. The other relies upon that communication. And the other
would be harmed materially if the actor is later permitted to assert any claim
inconsistent with his earlier conduct." D. Dobbs, Equity and Equitable
Remedies 42 (1973); see generally, 3 J.Pomeroy, Equity Jurisprudence § 804 at
189 (5th Ed. 1941).

issue =-- and according to the Court of Appeals, the dispositive issue -- is

whether McCleskey "deliberately abandoned" his Massiah claim. 4? Orderly

1. Mr. McCleskey Did Not Deliberately Abandon HIs Massiah ude
Claim Or Bypass on His Initial Feta
Application

The District Court's factual CE Ph on deliberate abandonment
set asd Couvt of r could th ben

OE overated by the as "'c joes erroneous” under Rule 52(a)3

ther
Er eiay provide the foundation for subsequent review of this issue. Amadeo

v. Zant, 486 U.S. 214, 223-22 (1988); Anderson v. City of Bessemer City, 470

U.S. 564, 573-576 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 287-293

(1982). The principal findings are as follows: (i) that "[a]t the time of his

first federal petition, petitioner was unaware of [informant] Evans' written
~ ;

statemen » (J.A. 83-84); (ii) that "petitioner did not have . . . Worthy's
ON

testimony at the time of his first federal petition)" (J.A. 84); (iii) that

"counsel did conduct an investigation of a possible Massiah claim prior to the

first federal petition) "(one which, measured by the standards of "reasonably

(constitute

45 Mr. McCleskey initially asserted his Massiah claim in an amendment
to his first state habeas corpus petition; the claim was not carried forward
in his initial federal petition. Whether or not these facts alone i
"prima facie evidence of deliberate abandonment," as the panel held (J.A.
125), they clearly provide a sufficient basis for the State's defensive plea
of abuse, which was asserted when Mr. McCleskey filed his seco ral
petition. Had the District Court ignored that pleaf had it proceeded to the
merits of Mr. McCleskey's claim without first requiring him, pursuant to Rule
9(b) and Sanders, to come forward with evidence on the issuey it would have rer

erred.

The District Court, however, did precisely the opposite. At the outset
of Mr. McCleskey's federal hearing, the District Court turned immediately to
the issue of abuse. It invited argument from counsel; it a
and live evidence; it engaged in an extensive colloquy with counse e
significance of that evidence. Only then, after announcing oral rR (R4-
118-120) which were later expanded in its written opinion (J.A.83-85), did

the court turn to the merits.

45 (received

competent counsel," was adequate/ (J.A. 84-85); (iv) that there was "no

showing of any reason that petitioner or his counsel should have known to

interview Worthy specifically with regard to the Massiah claim," (J.A. 85);

(v) that conducting interviews with three Atlanta police officers and jailors

who later testified at the federal hearing "would [not] have allowed

petitioner to assert this claim any earlier/" (J.A. 85); and (vi) that the

Massiah claim "was dropped because it was obvious that it could not succeed

given the then-known facts." (J.A. 83).

The panel purports to accept these findings (J.A. 123), differing with

the District Court only on a legal issue -- "the meaning of deliberate

abandormment." (J.A. 124). Yet as its opinion unfolds, the panel brands the

investigation 48 Tir. McCleskey's counsel as "somewhat racking," (J.A. 126) {2

and declares broadly that to abandon a claim after "initial investigatory

efforts" prove unsuccessful "cannot insulate a petitioner from abuse of the
>

ac i (J.A. 127). The panel concludes its analysis with a holding that

"counsel is required to make a thorough investigation of the facts at the time

of petitioner's first petition for habeas corpus." (J.A. 129). :

This analysis is subject to two possible interpretations: b either the

panel has added a new, "thorough investigation" requirement to the traditional

"deliberate bypass" inquiry, or ET the panel has rejected, sub silentio, the

District Court's factual findings that Mr. McCleskey's counsel conducted a

reasonably adequate investigation. We will deal with the first possibility

under the present heading, and address the latter issue under the heading of

"inexcuable neglect." as

Our earlier review of abuse doctrine nakef clear just how

radically the panel's "thorough investigation" requirement departs from prior
=

wan pul ation)

focus
law. Since at least Salinger and Wong Doo in 1924, the primary of the

\ of abuse =|

federal on an applicant's good or bad faith, his possible -— hev

inequitable abjse of wo i To check such misconduct, the Court and the
WAIL

Congress have settled upon a standard that necessarily fo PRET upon

the subjective intent of the applicant (and his counsel) . At its core is a

threefold question, drawn from Johnson v. Zerbst : was the applicant's action

voluntary? was it knowing? was it intelligent? If newly proffered evidence

was "obviously well known" to an applicant, if that evidence was "accessible

at all times," if an applicant had "full opportunity to offer proof of it" and

simply "reserve[d] the proof for use in . . . a later petition," then

deliberate bypass has been shown, and the petition should be denied.

The panel's new rule, by marked contrast, would impute to Mr. al
\ Fn iS

not only Re isas so "accessible," so close to hand, that it "must have

been" known, but all knowledge that, in the panel's view, might somehow have

been obtained through a "thorough investigation." Good faith becomes

irrelevant} proof of a "purpose to vex, harass or delay," unnecessary. (3 )
pW E Such a

ete RE for the wisdom of ie rule, it is indisputably not

the present law. It cannot be squared with Wong Doo, with Price, with

Sanders, with Smith, or with Woodard and Antone. More important, it cannot

be squared with Fongressional intent, for in enacting § 2244, § 2244(b), and

Rule 9(b), which incorporate the Sanders standard, Congress made a series of

choices. It was present vi oltpdart exerang the perceived

problem, ofan apparent need for change, SVE the statutory alternatives --
|

some of them nearly identical to the new rule adopted by the panel below. S et

{Congress unmistakably rejected those alternatives. By dismissing, or

: (A) +1 futiv
ignoring, those Congressional choices 1ts own, the panel

SEE

Cf. Oregon vs Kennedy ~

456 U.S. G67 (1982)

Conducted. awn investigation With was reasonable awd discowr-

ed. No Quidewee of on violation that State officals
a

verve 25Sidususiv Cowncealing > ; ~~ —
erred. ee, e.d., Autry v, kstelle, 464 U.S. 1301 (1983) (White, Circuit

Moreover, even if the law permitted the fruits of a reasonable

investigation to be imputed to counsel, Mr. McCleskey's imwestigstion plainly

Reets-any-defonsihle-applicatich-0t=such flew Warren McCleskey's (attorneys )
4 ursue

law 4 ersLaia not sit idle on this issue; nS investigation that might,

without self-congratulation, be called nextensive."®’ What thwarted counsel's

46 win my view, it would be desirable to require by statute that all
federal grounds for challenging a conviction or a sentence be presented in the
first petition for habeas corpus. Except in unusual circumstances, successive
writs woul summarily denied. historically, res Judicata has been
inapplicable to habeas corpus proceedings . . . and 28 U.S, C. § 2254 Rule 9

the legitimacy of successive petitions raising grounds
that have not previously been presented and adjudicated." 464 U. ¥ at 1303,

47 We note that 1 the following steps, all of them indisputably taken by
3 1 1 .

Bones attomneys! LaWd exculpatory evidewce.
0 trial counsel formally moved to obtain all widen statenents| eran

the State; de
0 trial counsel renewed his I

. — ?
iy dewaud in habeas counsel, despite the lack of prior success by trial ( =< )
all documents counsel, nonetheless asserted a Massiah claim;

' 0 counsel sought) through police of ficenradvice , which jail
Iw the 2 officials were most likely to know about any Massiah violation;
possession tat o habeas counsel then interviewed those jail officials;
relle ced oral © habeas counsel, having learned about a retired jail official who

+e had been responsible for cell placement in 1978, tracked that
statemen jailor down to a town 60 miles away, to no avail;
ou Melleskeq ; o habeas counsel sought from the State, and was given, what the

State represented to be "a complete copy of the prosecutor's
filey"

s counsel asked the prosecutor and the informant, under oath,
whether there had been an improper relationship;
when the informant's 21-page statement was uncovered
counsel immediately filed a secondipetition;
habeas counsel questioned police officers to learn where the 21-
page statement had been taken from Evans;
habeas counsel, having learned that it had been taken in a Captain
Worthy's office, found and subpoenaed Worthy

Smite he relevant knowledge.

to a ail had any whether J (“federal habeas )

ability to prove their Massiah claim, to obtain the two critical items of

evidence -- informant Evans' 21-page statement and Ulysses Worthy's testimony

-—- was not their own lassitude, but rather the State 's ten-year pattern of

suppression of evidence, denial, and perjury. This is not a story of

deliberate abandonment by an applicant, but of deliberate concealment by the

State. gm] See Awades v. 2avt A Supra A )

The only legal standard under which counsel's investigation could joe

( properly faulted would be a strict liability standard. If habeas counsel are

to be charged with knowledge of all possible evidence, no matter how obscure,

no matter how thoroughly hidden by State actors, no matter how tangential,

then Mr. McCleskey's attorney is guilty of deliberate bypass. Nothing

%1 Congress has ever done, indeed, nothing we have found in the past 300 years of

habeas corpus jurisprudence, would support the adoption of such a standard.

2. Mr. McCleskey's Conduct In Investigating
His Massiah Claim Did Not Constitute
"Inexcusable Neglect"

Mr. McCleskey's failure to raise the Massiah claim "was not due to his
(= inexcusable neglect," the District Court found.[(J.A. 84). "Reasonably nike 7

competent counsel at the time of the first petition, " would not have

discovered either the statement of informant Evans or jailor Worthy. (Id.)

While the panel purports not to overturn these factual findings, in

truth it takes a sharply different view of the evidence. The District Court
—

found, for example, that informant Evans' 21-page statement — Vooniaing

strong indications of an ab initio relationship between Evans and the

authorities." (J.A. 84). The panel, on the other hand, dismisses the

statement as "[a]t most . . .simply the catalyst that caused counsel to pursue

the Massiah claim more vigorously." (J.A. 128). 48

The District Court carefully examined the question whether reasonable

counsel would have located jailor worthy! @ JA. sro) tem ifr ERE

. . . reason that petitioner or his counsel should have known to interview

Worthy specifically." (J.A. 85). The panel reaches almost precisely the

contrary conclusion: '"McCleskey has not presented any reason why counsel

would have been unable to contact Ulysses Worthy back in 1981 . . . [or why] a

more extensive effort at that time . . . would not have turned up Worthy."

@.a. 120).%° revealed » )

28 The panel's assessment undervalues the statement in at least two
important respects. (i) It was Evans' statement that provided the sole direct
link between Offie Evans and Ulysses Worthy. Only when Detective Harris

on cross—-examination, that Evans' statement had been taken in
jailor Worthy's office did Worthy first emerge as a possible witness from
among the hundr of jailors employed by the Fulton County Jail in July
of 1978. Second, even had jailor Worthy somehow miraculously come to
counsel's attention independently of the 21-page statement, his testimony
alone could not have supplied the "deliberate elicitation" required by Massiah
and subsequent cases. It is Evans' boastful statement that reveals his aggresgt SSIve
interrogation of Mr. McCleskey, the degree to which he went beyond being -
simply "a listening post!" or an "ear" and became "voice . . . to encourage
conversation."

gs el's critique focuses upon a single strand of evidence that

McCleskey's attorney O pubue: follow-up interviews with three
Atlanta law enforcement officers mentioned during state habeas proceedings.
(7.3.1256 n.12).

The panel's critique ignores two critical facts, one of which was
expressly found by the District Court. First, during the state habeas
proceedings Mr. McCleskey's counsel heard their superior officer, Assistant
District Attorney Russell Parker -- the State official charged with overall
responsibility for the investigation and prosecution of the McCleskey case --
testify under oath that the State had not entered into an informant
relationship with Offie Evans prior to McCleskey's trial. Second, the
District Court later found that one or more of the officers whom the panel
pel1eve]should have been interviewed lied under oath in federal court to
pretest their own prior misconduct. (J.A. 90). It is little wonder that the
District Court rejected an argument by the State that counsel's failure to
interview these officers constituted an abuse:

2 (over « ®

the
In sum, the panel's analysis bears a striking resemblance to lla

opinion faulted by this Court in Amadeo v. Zant, 486 U.S. 214 (1988). As in

McCleskey, the issue in Amadeo was whether evidence, hidden by the State, was

nonetheless "reasonably discoverable" by defense counsel. 486 U.S. at 222. As ‘Ary

here, the district court in Amadeo made factual findings, after the receipt of wnda) -

live testimony, concerning the adequacy of defense counsel's investigation and

the accessibility of the crucial evidence. 486 U.S. at 223. In Amadeo, a

panel of the court of appeals thereafter "substituted its own factual findings

for those of the District Court" and "rejected . . . the District Court's
\2ppropriate Judicial Pvo-—_

conclusion that petitioner's lawyers did not deliberately bypass" tHe
ceed ud S om

i 486 U.S. at 224. The same error appears to

Unquestionably i r ve from tue
have recurred here either the panel's holding in McCleskey is a

Settle .
i law of deliberate bypass -- as we argued above -- or it

is a flat on of Amadeo V. SFL es either event, it
Neer Se.o .

should De sec-asiie Ty this Court. but the very
Covcapt of

reieis esti on ate officials. Unlike Hutchins or

Antone, Mr. McCleskey's lawyers sought out all available evidence. They

affirmatively presented what little they found to the state habeas court, and

they sought in good faith to learn from responsible state officials whether

there might be anything else to proffer. Only after those officials -- whose

Given that all three denied any knowledge of a request to move Evans
next to McCleskey, it is difficult to see how condudiitng such interviews
would havf allowed petitioner to assert this claim any earlier.

(J.A. 85),
Ow he record what. 1S inexeus =

(Ce) able aud whet. hes delayed Mn

51) Me. Cles Key's presentation of

®R The sanel's decision his Massialy claim +o the ge

offends not wevely for o decade |S nol. any neg

on his Side bu covcea iment

own conduct was the matter at issue -- testified under oath that their conduct

had been blameless} and that McCleskey's suspicions were baseless, did counsel

decide to drop the claim. That Sacision mee in good faith reliance upon the

word of State officials, however naive it later proved to be, was not what

¢
this Court has ever meant by "inexcusable neglect

3. Mr. McCleskey Did Not Otherwise Abuse The Writ

We have shown that Mr. McCleskey did not deliberately withhold his

Massiah claim, and that his counsel were not guilty of inexcusable neglect.
the. de_any othes,

The final inquiry is whether } conte, the Bs of citer partis prove +
“or z glam

ob bas) hated bar Eero SF shim [me equities,
rewgth Sin

rear Stapaiy-cueper, rather than w ( petitioner's Ts On Mr.

McCleskey's part, there is no evidence of bad faith. His counsel did all they be

~ ent rtle—

heard
could think of to present evidence of a Massiah violation to the state habeas on the

corpus courts. A decision to carry the Massiah claim forward into federal Mev its
+o

court/ to continue [assert serious charges against State officals Ne

what appeared to have been a full hearing, despite their sworn denials,
w_. have bs

despite an absence of contrary evidence -- LTR pea, at the least, bo=itms
waste

a gesture/ and 1 at the most, an arguably ian 0

p!
i plea.

Any equitable review of the State's conduct, by contrast, leads

inexorably ry finding of bad faith.

IT Court has traditionally imputed the misconduct of any member

of the prosecution team to the State itself. See, e.q., Mooney V. Holohan,

294 U. S. 103 (1935); Brady v. United States, 373 U.S. 83 (1963). The good

faith of some State actors cannot excuse the bad faith of others. Especially

Meut +o

this[is| true when Sixth Amendment claims are under a As
e —

Justice Stevens explained in Michigan v. Jackson, 475 U. S. 625, 634 (1986),

"Sixth Amendment principles require that we impute the State's knowledge
from one state actor to another. For the Sixth Amendment concerns the

confrontation between the State and the indivi ",

See also Giglio v. United States, 405 U. S. 150, 154 (1972); Santocbello v. New

C= 404 U.S. 257, \ (1971) ; Cf. United States v. Bagley, 473 U. S. 667, 671 &

n.4 r=

It is appropriate in habeas corpus proceedings for the State's

conduct, no less than the applicant's, to be judged by equitable standards.

And since "a suitor's conduct in relation to the matter at hand may disentitle 2-

hin to the relief he seeks," Sanders v. United States, supra, 373 U.S. at 17, OS dolela

the State here should be disentitled to assert its defense of abuse-of-the— od

writ.

A variety of equitable doctrines support this conclusion. The State has

brought unclean hands to this litigation; under the traditional test outlined

by Professor Dobbs, see note 43, supra, the State actors did far more than

merely violate Massiah. When defense counsel began to probe the relationship

between Offie Evans and Atlanta police, those State actors affirmatively

suppressed evidence and lied in an effort to hide fr misconduct. These acts

50 The lower federal courts have regularly applied this rule to police
misconduct of the sort at issue here. See, e.d., Freeman v. State of Georyia,
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 v. Wainwright, 390
P.2d 288, 296 (5th Cir. 1963); Curran Vv. State of Delaware, 259 F.2d 707, 713
(3d Civ. 1588). =

constituted an independent wrong, separate from, though in furtherance of, the

initial Massiah violation. Since the essence of the State's abuse defense

delay in discovery ;
depends upon Mr. McCleskey' the evidence that State

officials were actively hiding, the State dirtied its hands in the very act of

acquiring the defense that it now asserts against Mr. McCleskey. ~~

ditiouallys :
e State's conduct in suppressing Evans' statement

should equitably estop it from claiming abuse.”l The Court could even draw on

more ancient doctrines, such as the venerable maxim "omnia praesumuntur contra

spoliatorem," which

embraces most frequently cases of the destruction or suppression of
written evidence . . . [B]Jut it has been said that to smother evidence
is not much better than to fabricate it. [Black, J., in Bryant v.
Stillwell, 24 Pa, St. 314 (1855).] Wspoliation,® it is said in one
case, [Little v. Marsh, 2 Ired. Eq. 28 (1841)] "is always looked upon by
a court of justice with suspicion.\l=

Lawson, The Effect of Withholding, Suppressing and Manufacturing Evidence in

Civil Cases, 18 Amer. L. Rev. 185, 200 (1884).

Indeed, the principle that a court should not permit a party to profit
wou on

oy eum is so fundamental that, in one guise or another, it -

pervades all areas of the law. [CITES] No special rule need be fashioned to

bar the State from asserting of an abuse-of-the-writ defense, on the present

record, against Warren McCleskey.

Cc. Petitioner's Response To The Question Presented By The Court

The Court, in granting certiorari in this case, framed an additional

question on the issue of abuse:

51 geo generally, Moser v. United States, 341 U.S. 41, 46-547 (1951);
Portmann v. United States, 674 F.2d 1155, 1167 (7th Cir. 1982); TRW, Inc. V.
FIC, 647 P.2d4 942, 950-951 (1981) ; Beacom v. EEOC_500 F. Supp. 428, 435-439
(OD. Ariz, 19280),

—(PresumaBLy, Tie COuBTS ADDER
Da ug zeT OUT tied]

A
decisive

Mr. Metleskey |

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JUL-27-1998 16:89 FEM NC LF

TOTHLR. 13

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