Application For Certificate of Probable Cause to Appeal the Denial of Habeas Corpus

    SUPREME COURT OF GEORGIA 

ATLANTA SEP 1 g 1991 

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed: 

S91H1673. WARREN McCLESKY v. WALTER D. ZANT, WARDEN 

Upon consideration of this application for a certificate of 

probable cause, it is hereby ordered that it be denied. 

It is further ordered that the Motion for Stay of Execution 

filed in this matter is also denied. 

SUPREME COURT OF THE STATE OF GEORGIA, 

CLERK’S OFFICE, ATLANTA 

I certify that the above is a true extract from the minutes 

of the Supreme Court of Georgia. 

Witness my signature and the seal of said court hereto affixed 

the day and year last above written. 

pn 3 Hons, Algpaizsoen 

 



   
Supreme Court 

HAROLD G. CLARKE, CHIEF JUSTICE 

GEORGE T. SMITH, PRESIDING JUSTICE State of Georgia 

CHARLES L. WELTNER 

RICHARD BELL STATE JUDICIAL BUILDING 
JOLINE B. WILLIAMS, CLERK 

WILLIS B. HUNT, JR Atlanta 30334 WM. SCOTT HENWOOD, REPORTER 
ROBERT BENHAM 

NORMAN S. FLETCHER 

SEP 17, 1991 JUSTICES 

John Charles Boger 
University of North Carolina 
chool of Law - CB # 3380 
Chapel Hill NC 27599 

Case No. S591H1673 

WARREN McCLESKY vv. WALTER D. ZANT, WARDEN 

The above styled Application For Certificate of Probable 

Cause to appeal the denial of habeas corpus has been docketed 

in the Supreme Court today and assigned the case number shown 

above. 

Joline B. Williams, Clerk 

  

 



  

IN THE SUPREME COURT OF GEORGIA 

WARREN MCCLESKEY, 

. Petitioner, 

v. 

WALTER D. ZANT, WARDEN, 

Respondent. * 
0%
 

% 
MN
 

OX
 

% 
XX
 

%*
 

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APPLICATION NO.   

ON APPEAL FROM THE 

SUPERIOR COURT OF 

BUTTS COUNTY 

HABEAS CORPUS 

  

RESPONSE IN OPPOSITION TO APPLICATION FOR 

CERTIFICATE OF PROBABLE CAUSE TO APPEAL 

  

Please serve: 

MARY BETH WESTMORELAND 

132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 
(404) 656-3349 

MICHAEL J. BOWERS 

Attorney General 

SUSAN V. BOLEYN 
Senior Assistant 

Attorney General 

MARY BETH WESTMORELAND 

Senior Assistant 
Attorney General 

 



  

IN THE SUPREME COURT OF GEORGIA 

WARREN MCCLESKEY, APPLICATION NO.   

ON APPEAL FROM THE 

SUPERIOR COURT OF 

BUTTS COUNTY 

Petitioner, 

Vv. 

WALTER D. ZANT, WARDEN, HABEAS CORPUS 

¥ 
OX

 
OX
 
OX
 

OX
 

¥ 
OX

 
% 

0% 

Respondent. 

  

RESPONSE IN OPPOSITION TO APPLICATION FOR 

CERTIFICATE OF PROBABLE CAUSE TO APPEAL 

  

COMES NOW Walter Zant, Warden, Respondent in the 

above-styled act ion; by counsel, Michael J. Bowers, 

Attorney General for the State of Georgia, and submits the 

instant response ‘in opposition to Petitioner's application 

for a certificate of probable cause to appeal the 

dismissal of the petition for a writ of habeas corpus 

based on res judicata and O0.C.G.A. § 9-14-51.   

 



  

STATEMENT OF THE CASE 
  

Petitioner, Warren McCleskey, along with David Burney, 

Bernard Depree, and Ben Wright, Jr., were indicted on June 

13, 1978, for murder and two counts of armed robbery. The 

Petitioner was tried separately beginning on October 9, 

1978, was found guilty on all three counts, and was: 

sentonded to the death penalty and two consecutive life. 

sentences. Petitioner's convictions and sentences were 

affirmed on direct appeal. McCleskevy v, State, . 245 Ga.   

108, 263 S.E.24 146, cert denied, 449 U.S. 891 (1980).   

In the first state habeas corpus petition filed by 

Robert Stroup on January 5, 1981, the (Petitioner included 

a challenge to the alleged failure to disclose an 

"arrangement" with "a police agent or informer" (Offie 

Evans) and the alleged deliberate withholding by the 

prosecution of the statement made by the Petitioner to 

Evans. Petitioner subsequently filed an amendment to that 

state petition in which Petitioner challenged the 

introduction into evidence at trial of his statements to 

"an informer” and specifically asserted that the 

statements were taken in violation of the Sixth Amendment. 

A hearing was held on the petition on January 30, 

1980, at which time Petitioner presented Offie Evans as a 

witness. Subsequently, the Petitioner tendered the 

 



  

testimony of assistant district attorney Russell Parker by 

way of deposition. On April 3, 1981, the superior court 

denied relief. The Supreme Court of Georgia denied an 

application for a certificate of probable cause to appeal 

on June 7, 1981, and the United States Supreme Court 

denied a petition for a writ of certiorari on November 30, 

1981. 

On December 30, 1981, the Petitioner filed a petition 

for habeas corpus relief in the United States District 

Court for the Northern District of Georgia. Among Sener 

allegations, the Petitioner challenged the failure to 

disclose an “understanding” with witness Evans; however, 

Petitioner did not assert a Sixth Amendment violation in 

relation to the use at trial of the testimony of Offie 

Evans. After extensive evidentiary hearings were held 

before the district court, on February 1, 1984, the court 

granted habeas corpus relief based on the allegation of an 

undisclosed deal with Offie Evans. McCleskey v. Zant, 580 
  

F. Supp. 335 (N.D.Ga. 1384). 

On January 29, 1985, the Eleventh Circuit Court of 

Appeals sitting en pane. {svaen an opinion which affirmed 

all convictions and sentences, particularly reversing the 

district court on the Giglio claim as to the testimony of 

  

Offie Evans. McCleskey v. Kemp, 753 F.2d 877 (llth Cir. 

1985) (en banc). 

 



  

The Petitioner then filed a petition for a writ of 

certiorari in the United States Swprens Court... In that 

petition, the Petitioner asserted that the death penalty 

was discriminatorily applied, and that there was a 

violation of Giglio v. United States, 405 U.S. 150:(1972),   

based upon the testimony of Offie Evans. The Court 

subsequently granted the petition for a writ of certiorari 

limited to the consideration of the application of the 

death penalty. On April 22, 1987, the Court affirmed the 

denial of habeas corpus relief. McCleskey v. Kemp, 481 
  

U.s8. 279-(¢1987). - On or about May 15, 13987, Petitioner 

filed a petition for rehearing, reasserting his claim 

relating to a violation of Qiglio v. United States. On 
  

June 8, 1987, the Court denied the petition for 

rehearing. McCleskey v. Kemp, 482 U.S. 920 (1987). 
  

On June-8, 1987, a successive state habeas corpus 

petition was filed raising several claims including the 

state's alleged failure to disclose impeaching evidence 

(the ‘alleged "deal” with Offie Evans) at trial. On June 

22, 1987, Petitioner filed an amendment to the petition 

dalsing two allegations, that is, that Offie Evans was 

acting as an agent for the state at the time the 

Petitioner made statements to Evans and that the 

prosecutor failed to correct alleged misleading testimony 

by Evans. The support offered for this claim was a 

 



  

written statement. of Evans' obtained from the prosecution 

under the Georgia Open Records Act. Relief was denied on 

July 'l, 1937, The Supiene Court of Georgia denied an 

application for a certificate of probable cause to appeal 

on July 7, 1337, | 

On July 7, 1987, Petitioner filed a second federal 

habeas corpus petition in the United States District Court 

for the Northern District of Georgia. After hearings were 

held by the district court on July 8, 1987, July:9, 1987, 

and August 10, 1987, the district court entered an order 

on December 23, 1987, granting habeas corpus relief only 

as to Petitioner's murder conviction and sentence based 

upon the finding of a violation of Massiah v. United 
  

States, 377 U.S. 201 (1964), based on the testimony of 

Offie Evans. 

On May 6, 1988, Respondent filed a motion for relief 

from judgment under Fed. R. Civ. P. 60(b) in the district 

court. Pursuant to the June 17, 1988, order of the 

district court, both parties conducted discovery including 

taking the deposition of Offie Evans on July 13, 1988. On 

January 10, 1989, the district court denied the motion for 

relief from judgment. 

A panel of the Eleventh Circuit Court of Appeals 

entered an opinion on November 22, 1989, amended on 

December 13, 1989, specifically reversing the finding of 

 



  

the district court and concluding that the district court 

abused its discretion by failing to find an abuse of the 

writ and that the. Petit iones had abused the writ by 

deliberately abandoning the Sixth Amendment Massiah claim. 

at the time of the first federal petition and that any 

error based on an alleged Massiah violation was harmless. 

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

circuit court did not rule on Respondent's assertions that 

the district court's finding of a Magssiah violation was 

based on clearly erroneous factual findings and that the 

Aistiioy court erred in denying Respondent's motion for 

relief from judgment. Rehearing and rehearing en banc 

were denied on February 6, 1990. 

Petitioner then filed a petition for a writ of 

certiorari which was granted on June 4, 1990, with a 

question being added by the Court. McCleskey v. Zant, 
  

U.S. + 110. 8S.CE. 2585 (1990) . On April ‘16, 1991, the 

Court entered an opinion finding the petition to be an 

abuse of the writ. McCleskey v. Zant, Uu.s. Scilly 
  

S.Ct. 1454 (1991). Rehearing was denied on June 17, 

1991. 

On June 13, 1991, Petitioner filed his third state 

habeas corpus petition in the Superior Court of Butts 

County. Respondent filed a motion to dismiss on or about 

July 6, 1991, 

 



  

On September 3, 1991, the United States District Court 

entered an order lifting the stay of execution and making 

the judgment of the appellate court the judgment of the 

district court. On September 9, 1991, the Superior Court 

of Fulton County entered an order scheduling an exdcuLion 

time period beginning at noon on September 24, 1991, and 

ending October 1, 1991, 

A hearing was held in Butts County on September 13, 

1991, on Respondent's motion to dismiss and on 

Petitioner's motion for a stay of execution filed that 

day. on September 13, 1991, the superior court entered an 

order granting the motion to dismiss and denying the 

motion for a stay of execution. Petitioner filed a notice 

Of appeal on that same date. On September 17, 1991, 

Petitioner filed the instant application for a certificate 

of probable cause to appeal. 

 



    

STATEMENT OF FACTS 
  

  

(a) The Commission of the Crime. 

The evidence presented at Petitioner's trial honed 

that on May 13, 1978, he and three co-indictees committed 

an armed robbery at the Dixie Furniture Store in Atlanta, 

Georgia. The evidence showed that the Petitioner entered 

the front of the store while his three co-indictees 

entered the back. Petitioner was positively identified at 

trial as one of the participants in the robbery. (T. 

231-232, 242, 250). 

While Depree, Burney and Wright, the co-indictees, 

held several employees in the back of the store, the 

Petitioner was in front. Employee Classie Barnwell had 

activated a- silent alarm, resulting in the arrival of 

Officer Prank Schlatt. Shortly after Schlatt entered the 

front of the store, he was shot. After hearing two shots, 

Wright observed the Petitioner running out of the. front of 

Lhe store, Wright, Depree and Burney ran’ out of the 

back. When they all arrived at the car, Petitioner stated 

that he had shot the police officer. (T. 658-9). 

Petitioner testified in his own behalf at trial and 

stated that he knew Ben Wright and the other co-indictees, 

but that he had not participated in the robbery. 

Petitioner relied on an alibi defense. 

et es 0 

 



  

Petitioner was also identified at trial by two 

witnesses who had observed him take part in a prior 

similar robbery. Mr. Paul David Ross, manager of the Red 

Dot Grocery Store, also testified that during the course 

of the Red Dot Robbery, his nickel-plated .38 revolver was 

taken. 

In its rebuttal case, the state presented the 

testimony of Arthur Keissling, who identified the 

Petitioner as a participant in the robbery of Dot's 

Produce on March 28, 1978. {T. B87~-889, 896). The state 

also prosonted the testimony of Offie Gene Evans in 

rebuttal. Mr. Evans had been incarcerated in the Fulton 

County jail in a cell located near the Petitioner and 

Bernard Depree. Evans testified that the Petitioner had 

talked about the robbery while incarcerated and had 

admitted shooting Officer Schlatt. (T. 869-870). Evans 

also testified that the Petitioner said he would have shot 

his way out even if there had been a dozen policemen. 

 



  

  

(b) The Availability of the Statement of Offie Evans. 

The written statement of Offie Evans was not obtained 

by Petitioner until July, 1987. The record establishes 

conndel should have been aware of the statement and that 

the state did not "conceal" its existence. 

The trial court conducted an in camera inspection of 

certain specified material noting in its order, "The court 

finds that although the documents might become material 

for rebuttal at trial, they are not now subject to 

Alschvery,” {T.R. 46). During cross-examination of the 

Petitioner at trial, counsel for the Petitioner objected 

to cross-examination by the assistant district attorney 

indicating that he had asked for all statements by the 

Petitioner. The trial court stated, "He has a statement 

which was furnished to the Court but it doesn't help your 

Client." (T. 3830). 

At the first state habeas corpus hearing trial 

counsel, John Turner, testified that the assistant 

district attorney, Russell Parker, told him there were two 

items not included in the file shown to Turner: the grand 

jury testimony of a witness and a statement of an unnamed 

individual. (S.H.T. T.at 77). 

£10 

 



  

The deposition of the assistant district attorney, 

Russell Parker, was taken by Mr. Robert Stroup, counsel 

for the Pet teinrer on February 16, 1981. During that 

deposition, Mr. Parker told Mr. Stroup that he "had a file 

I made available to all the defense counsel in this 
  

case." Id. (Emphasis added). Thus, the file identified 

at the deposition and requested by Mr. Stroup was the 

file "that was made available back at pre-trial and 
  

trial." Id. at 3, (Emphasis added). At no time is there 

any indication that this file included the matter which 

was the subject of the in camera inspection. This was the 

file given to habeas counsel subsequent to the deposition. 

Additionally, during the deposition, Mr. Stroup, 

counsel for Petitioner, referred to a "statement" from 

Offie Evans. In response to a question concerning the 

statement, Mr. Parker clarified stating, "When you refer 

to a statement, Offie Evans gave his statement but it was 

not introduced at the trial. It was part of that matter 

which was made in camera inspection (sic) by the Judge 

prior. ro" trial." . Id. at 8. 

Petitioner obtained a copy of the statement, 

apparently from the Atlanta Police Department's file, 

pursuant to a request made under the Georgia Open Records 

wy a 

 



  

court found that under Georgia law Petitioner would have 

had access to that statement at least since 1976 and the 

decision ‘in Houston wv. Rutledge, 237 Ga. 764, 229.8.%.248   

624 (1976). © (Habeas Corpus order, no. 87-v-1028 at 12). .. 

Rs oo 

 



  

ALLEGATION OF PETITION 
  

As the sole allegation raised in this third petition, 

the Petitioner reasserts his claim of an alleged violation 

of Massiah v. United States, 377 U.S..201 (1964). It is 
  

undisputed that Petitioner raised this claim in the 

amendment to his first state habeas corpus petition 

(Respondent's Exhibit No. 1) and in the amendment to his 

second state habeas corpus petition. (Respondent's 

Exhibit No. 2). This issue was not raised in federal 

court witil the second federal habeas corpus petition 

filed in 1987. Respondent would note that this identical 

issue has been raised the case of Petitioner's 

co-indictee, Bernard Depree, as Offie Evans also testified 

against Mr. Depree based upon the same conversations 

involved herein. As can be seen by the order of the 

district court in that case, a district court judge 

considering virtually the same evidence as considered by 

Judge Forrester in the Petitioner's case reached the 

opposite conclusion. (Respondent's Exhibit No. 5). 

Petitioner now seeks to have this Court relitigate his 

allegation of a Sixth Amendment violation under Massiah in 

relation to the testimony of Offie Evans. This is the 

third time Petitioner has sought to litigate this claim in 

the state courts. Petitioner not only raised this claim 

«13- 

 



  

in 1981 but had ample opportunity to present any and all 

evidence to the habeas court at that time. Petitioner 

presented virtually no evidence on the claim in that 

proceeding and that court found Petitioner failed to prove 

his claim. | 

At the hearing on the motion to dismiss this third 

petition, counsel for Petitioner conceded the issue at 

this time was whether Petitioner could establish a basis 

for circumventing the res judicata bar to relitigation of   

this claim, See Stevens v. Kemp, 254:Ga. 228, 327 B.E.24   

185 (185), Petitioner's argument was that the "factual 

findings" of the district court in the second federal 

habeas corpus petition operate as res judicata in these   

proceedings. In essence, a res judicata or collateral   

estoppel argument is being utilized to attempt to 

Circumvent 8 res judicata bar. 
  

Petitioner cites Georgia case law on res judicata and   

collateral estoppel and essentially asserts the Court 

should give full faith and credit to the district court's 

orders. Petitioner's arguments completely ignore the fact 

that the orders he seeks to rely upon are not binding as 

they are not the judgment of the district court. As noted 

previously, the district court's judgment was reversed by 

the Eleventh Circuit and United States Supreme Court. The 

judgment now consists of the decision of the Supreme 

~14- 

 



  

Court, not any reversed orders of the district court. 

This Court ‘has specifically recognized that "if a decision 

is set aside it will of course cease to be res judicata of 

the issues which were therein made or which under the 

  rules of law. could have been made." Saliba v. Saliba, 202 

Ga. 279%, 42 S.E.28 748. (1947). 

In a footnote Petitioner cites to this Court's 

decision in McNeal v. Paine, Webber, Jackson & Curtis,   

Inc.,, 249 Ga. 662, 293 S.E.24:.331 (1982) as support for 

his conclusion that the "procedural reversal" by the 

¥lieventh Circuit and United States Supreme Court "should 

leave the Massiah facts . . undisturbed.” ‘That case 

gives absolutely no support for this proposition. The 

point to the ultimate judgment of the federal court is 

that the merits of the issue should never have been 

reached and, thus, no factual findings have been made with 

regard to the merits of the Massiah claim. Thus, there 

simply is no res judicata effect of any of the district   

court's reversed orders. 

Petitioner's only possible argument to overcome the 

semi indicate bar of the first state petition is a claim 

that there are new facts. It is Petitioner's burden to 

show he has new facts sufficient to require relitigation 

of this claim. Contrary to Petitioner's apparent 

assertion, it is insufficient at this stage of the 

~15 

 



    

proceedings in a third petition to simply make bare 

allegations without some support being offered to 

establish why these "facts" could not have been presented 

to the state courts earlier. 

Clearly, Offie Evans' written statement is not newly 

discovered as that was the precise basis for Petitioner's 

amendment to the second state habeas corpus proceeding in 

1987. Petitioner apparently relies upon the testimony 

presented in the United States District Court on the 

second federal habeas corpus proceeding in 1987. 

Petitioner ignores the fact that all of those witnesses 

were readily available at any time to testify including at 

the first or second state habeas corpus proceedings, and 

Petitioner never sought to have their testimony even 

proffered to the state habeas court. In fact, Russell 

Parker did testify before the court in the iret state 

habeas corpus petition and testified consistently with his 

testimony in "1987, that is, that he knew of no 

arrangements for Mr. Evans' testimony. The questioning of 

Mr. Parker by the Petitioner focused on whether there was 

a deal or promise in exchange for Evans' testimony, not 

whether Evans was placed in the cell to obtain 

information. In response to questions by counsel for 
  

Respondent, Mr. Parker only stated, "I don't know of any   

instance that Offie Evans had worked for the Atlanta 

~Y6- 

 



  

Police Department as an informant prior to his overhearing 
  

conversations at the Fulton County Jail." (Parker Dep. at   

15) (Emphasis added). Thus, Mr. Parker's testimony was 

specifically to his own personal knowledge, and that has 

never even been contended by Petitioner to be untrue, that 

is, Petitioner has never alleged much less proven that Mr. 

Parker had any personal knowledge of any alleged agency 

relationship. During the deposition Parker discussed an 

interview with Evans and mentioned by name Detectives 

Harris and Jowers. Id. at 20. Counsel for Petitioner 

never contacted either one of these detectives either for 

the first or second state habeas corpus proceedings. 

Mr. Evans also testified before the state habeas 

corpus. court in 1981, but was not asked whether he had 

been moved or placed in a jail cell as an agent for the 

State or whether he had been asked to instigate Or try to 

overhear conversations. Thus, Petitioner simply failed to 

pursue that line of questioning. Mr. Evans did mention in 

his testimony the names of Detective Dorsey and Detective 

Harris. Petitioner did not seek to present the testimony 

of either one of those witnesses in the first or second 

state habeas corpus petition, and Petitioner admitted in 

the second federal habeas corpus proceeding that he did 

not talk with either one of these individuals before 

either the first or second state habeas corpus 

“17 

  a Ea y ll 

 



  

proceedings. Detective Harris freely mentioned the name 

of Captain Ulysses Worthy when asked in the federal 

district court proceeding. Petitioner has never indicated 

that he attempted to contact Mr. Worthy or that he was 

prevented from doing so in any fashion. In fact, Mr. 

Stroup testified before the district court that he did not 

contact Harris, Dorsey, Hamilton or seek the Fulton County 

Jail records before the first state habeas corpus hearing. 

Although the holding of the Supreme Court of the 

United States in Petitioner's case relies on a procedural 

rule under federal law, many coments by the Court are 

pertinent here, including the necessity for "a prompt 

investigation and the full pursuit of habeas claims in the 

first petition. AL the £ ithe of the first federal 

petition, written logs and records with the prison staff 

names and assignments existed. By the time of the second 

federal petition officials had destroyed the records 

pursuant to normal retention schedules. Worthy's 

inconsistent and confused testimony in this case 

demonstrates the obvious proposition that fact-finding 

processes are impaired when delayed." McCleskey v. Zant, 
  

111: 8.Ct. 1473-4. Thus, the Court noted that if the 

Petitioner had pursued the claim in the first federal 

habeas petition he could have identified the relevant 

officers and cell assignment sheets. Clearly, had 

-1l 8 

 



  

Petitioner attempted to do so, he could also have obtained 

this information for the first state habeas corpus 

petition or the second state habeas corpus petition but he 

did not. 

The United States Supreme Court went on to focus on 

the twenty-one page statement of Offie Evans which 

Petitioner continually asserts the state withheld from 

him. The United States Supreme Court noted the following: 

This argument need not detain us long. 

When all is said and done, the issue is 

not presented in this case, despite all 

the emphasis upon it in McCleskey's 

brief and oral argument. The Atlanta 

police turned over the 21 page document 

upon request in 1987. The District   

Court found no misrepresentation or     

wrongful conduct by the State i     

failing to hand over the document   

lier, and our discussion of the 

evidence in the record concerning the 

existence of the statement, see n., 

supra, as well as the fact that at 

least four courts have considered and 

rejected petitioner's Brady claim, 

~19~ 

 



  

belies McCleskey's characterization of 

the case. And as we have taken care to 

explain, the document is not critival 

to McCleskey's notice of a Massiah 

claim anyway. 

  

McCleskey v, Zant, 111 S.Ct. at 1474 (emphasis added). 

The Court specifically emphasized that there had been no 

finding that the State had concealed evidence. Id. 

In reviewing the issues presented herein, it is clear. . 

that Petitioner has failed to establish any basis for this 

Court's relitigating an issue raised in the state courts 

twice previously when Petitioner had a full opportunity to 

present evidence on: this claim in 1981 and had the full 

opportunity to proffer evidence on this claim in 1987 and 

simply failed to do so. Petitioner's only cxoiis is that 

he simply waited until he got to federal court in 1987 on 

his second federal petition to conduct his fishing 

expedition which developed the sole testimony of Ulysses 

Worthy. None of the other witnesses in that proceeding 

corroborated Petitioner's allegation of an agency 

relationship or a Sixth Amendment violation and, in fact, 

all others specifically denied any such relationship. The 

Petitioners's failure to utilize the Open Records Act to 

obtain the written statement of Offie Evans was rejected 

Rife 4 4 10 

 



  

as a basis for reconsidering this claim in the second 

state habeas corpus proceeding, and Petitioner should not 

be allowed to resurrect this argument. Signifcantly, the 

two district courts considering all of this evidence have 

reached contrary results on the factual question of 

whether there was such an agency relationship. Petitioner 

has not established that the testimony presented in 1987 

in the United States District Court was not available only 

a matter of days earlier at the proceeding in the state 

court or years earlier in 1981. 

Under the Georgia rules established in Stevens, 

Petitioner must establish essentially that he had new 

facts which he could not have discovered in 1981 or in 

1987, and Petitioner has simply falled to do so. Contrary 

to Petitioner's assertion, there is no final judgment of 

any Court finding a coverup or police itsconduct regarding 

any statement of Offie Evans. Furthermore, certain 

factual findings by the district court are obviously 

Clearly erroneous, that is, that Mr. Evans was glven 

information not known to the general public, as there has 

never been any such Svidense presented in any court. 

Furthermore, there has been no showing that the testimony 

of Offie Evans was unreliable or false and, in fact, by 

making the challenge herein, Petitioner necessarily admits 

that he had conversations with Offie Evans in which he 

revealed inculpatory information. 

«21 

 



  

Petitioner's reliance on an alleged miscarriage of 

justice: is also meritless. This Court has yet to 

specifically conclude that the miscarriage of justice 

exception would apply to successive petitions under 

  

0.C.G.A., § 9-14-51. See Gunter v.. Hickman, 256 Ga. 315, 

343 S.F.24 644 (1986). In. that case, the Court simply 

assumed without deciding that "miscarriage of justice" 

would be a cognizable consideration in a successive habeas 

petition. The Court acknowledged its holding in 

  

Valenzuela v., Newsome, 253 Ga. 793, 325. 8.E.24 370 (1%85),;. 

thal a miscarriage of justice "demands a much greater 

substance, approaching perhaps the imprisonment of one 

who, not only is not guilty of the specific offense for 

which he is convicted, but, further, is not even culpable 

  in the circumstances under inquiry. . . .." Y¥Nalenzuela, 

253 Ga, at 796. | 

The United States Supreme Court considered the 

question of a miscarriage of justice under federal 

standards. Although that holding is not binding on this 

Court, the analysis by the Supreme Court of the United 

States sheds light on the miscarriage of justice inquiry 

by this Court. 

The Massiah violation, if it be one, 

resulted in the admission at trial of 

“ld. 

 



  

  

truthful inculpatory evidence which did 

not affect the reliability of the guilt 
    

determination. The very statement 
  

McCleskey now seeks to embrace confirms 

his guile, . . . MeCleskey cannot 

domonskrnte that the alleged Massiah 

violation caused the conviction of an 

innocent person. 

Id. (Emphasis added). 

Under the circumstances of this case, Petitioner's 

allegation of a Massiah violation falls far short of 

meeting the miscarriage of justice exception as defined in 

Valenzuela, even assuming that that exception would apply   

to a successive petition. 

Petitioner has asserted that this case is controlled 

by Smith v. Zant, 250 Ga. 645, 301 8.E.24 32 (1983) and 
  

that the state habeas corpus court ignored precedent of 

this Court. In Smith, the Court was examining the 

question of whether an issue could reasonably have been 

raised in the first petition, not whether an issue should 

be relitigated. That case is also factually 

distinguishable. In Smith, the Court was examining an 

allegation of prosecutorial misconduct in failing to 

correct false testimony and failing to reveal a deal made 

=23~ 

 



  

with the accomplice. The accomplice had specifically 

testified there was no deal and the district attorney 

stated in his argument there had been no promise. The 

basis for the second petition was an affidavit from the   

same district attorney stating that he in fact did make a 

deal with the witness in exchange for his testimony. The 

fault was in the alleged failure of the state to correct 

alleged false testimony based on the duty to reveal such 

false testimony. The Court also focused on the fact that 

the information that the testimony was false was 

particularly within the knowledge of the state. Thus, the 

Court found the issue could not reasonably have been 

raised earlier. Of critical importance in the case was 

that petitioner Smith had an affidavit specifically 

contradicting representations made by the prosecutor at 

the trial. | 

Contrary to Petitioner's assertions, the lower court 

did not ignore Smith, but discussed the applicability of 

the case extensively at the hearing and obviously 

concluded after hearing the arguments of counsel that 

Smith was not controlling and did not require a new   

hearing. 

In this case, the Massiah issue was raised in the 

first and second state habeas corpus proceedings. No 

false testimony has been shown to have been given. 

Mr .Evans was not asked and Mr. Parker's response was as to 

his personal knowledge. 

Dd. 

 



  

Petitioner would seek to have this Court order a new 

hearing on an issue litigated in 1981 based on the 

confusing, contradictory testimony of a jailer, or 

"Ztactual findings" in reversed orders, when Petitioner has 

not shown he made a reasonable attempt to discover any 

such information. The testimony on its face is so 

incredulous that it does not justify a hearing. Contrary 

to Petitioner's assertion, this is not argument on the 

merits of the claim, but supports Respondent's position 

that Petitioner has no legitimate basis for requiring the. 

state courts to relitigate an issue ten years after 

Petitioner first raised it. PFurther, Petitioner had a 

full and fair opportunity to develop evidence on this 

issue in 1981. 

Respondent submits from a review of all the above, it 

  1s clear that the principles of res judicata bar 

consideration of Petitioner's claim of a Sixth Amendment 

violation. Petitioner has failed to establish that he has 

new facts not available to him at the time of his first or 

second petitions in this Court, and he has failed to show 

that miscarriage of justice that would result from the 

failure of this Court to reconsider this claim at this 

time. 

25 

 



  

CONCLUSION   

Petitioner has failed to establish any legitimate reason 

for this Court to relitigate a claim that Petitioner had a full 

and falr opportunity to litigate ten years ago. 

WHEREFORE, Respondent prays that the Court deny the 

application for a certificate of probable cause to appeal and 

deny a stay of execution. 

Please serve: 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square 
Atlanta, Georgia 30334 

(404) 656-3349 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

Kove UV. Hele, aq 
  

SUSAN V. BOLEYN / 065850 
Senior Assistant Attorney General 

# die 7 , 4 ~~ / 7 | / 4 

/ bo x/ 3 / v Nevis 7 / 

/ i Ltt ANH TN (Tr. Lod A rf 7 7 1 & 
  

MARY BETH WESTMORELAND 750150 
Seniorn/Assistant Attorney General 

Ship 10 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing RESPONSE IN OPPOSITION TO 

APPLICATION FOR CERTIFICATE OF PROBABLE CAUSE TO APPEAL, 

prior to £8%ing the same, by depositing a copy thereof, 

postage prepaid, in the United States Mail, properly 

addressed upon: 

Robert H. Stroup Ln 
141 Walton Street VU 
Atlanta, Georgia 30303 

John Charles Boger 
University of North Carolina 
School of Law, CB #3380 
Chapel Hill, North Carolina 27599 

Paul Cadenhead 

Hurt, Richardson, Garner, Todd & Cadenhead 

999 Peachtree Street, N.E. 

Suite 1400 
Atlanta, Georgia 30309 

This [8A day of September, 1991. 

-"\ 

eof Bout 7) chmceellns 
MARY BETH WESTMORELAND 

SeniofY Assistant 

Attorney General 

  

1297.. 

mii i i RRR RRR RRR... i 

 



  

  

  

THU 12:27 1D: ROBERT LLEM TEL MO:484 521-1929 y 

DATE: BSeptambar 19, 199] 

TO: Bop Reinhardi, Siiiy Rehasil, Maul Cudsnhosd Yank 

Bogar 

FROM: Bob 8troup 

RE: Georgia Suprema Court 

The Clerk of the Georgla Supreme Court advised at 12:10 

this afternoon that the application for probable cause to 

appeal had baen denled.