General Legal Files
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February 6, 1989 - December 12, 1989

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Case Files, McCleskey Legal Records. General Legal Files, 1989. cdd8d8b7-62a7-ef11-8a69-6045bdd667da. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/653fcbe0-7cfc-44c6-946a-3c454f3b6673/general-legal-files. Accessed July 05, 2025.
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Auited States District Jour NORTHERN DISTRICT OF GEORGIA 2211 UNITED STATES COURTHOUSE 78 SPRING STREET, S.W. LUTHER D. THOMAS ATLANTA, GEORGIA 30335 CLERK February 6, 1989 Hr. Miguel J. Cortez, Jr., Clerk D.C. Ho. 1:87-CV-1517-JOF United States Court of Appeals, Eleventh Circuit 50 Spring Street, S.W. U.5.0.A. No. Atlanta, GA 30303-3147 IN RE: WARREN MCCLESKEY VS RALPH M. KEMP, WARDEN Ra PE SR Bl A EE TE RR Te IR Sl ae Te LL a TAI I ME WT rN ey Enclosed are documents regarding an appeal in this matter. Please acknowledge receipt on the enclosed copy of this letter. Certified copy of notice of appeal, docket entries, Judgement and opinion/order appealed from, enclosed. If opinion/order was oral, please check. XX First Notice of Appeal: XXYes NO Date(s) of other notices: Certified record on appeal consisting of: Volume(s) of pleadings, etc.: Volume(s) of transcripts; Volume(s) of exhibits/depositions. Other: There was no hearing from which a transcript could be made. Copy of CJA form appointing counsel. The following materials were SEALED in this court (order enclosed): XX The appellate docket fee has been paid XX Yes No; Date(s) paid 1/30/89 Appellant has been granted/denied leave to appeal in forma pauperis (copy of order granting/denying IFP and/or Certificate of Probable Cause is enclosed) xX The Judge or Magistrate appealed from is J. Owen Forrester XX The Court Reporter(s) are Sydney Huseby This is an appeal of a bankruptcy order. Bankruptcy Judge: This is a DEATII PENALTY appeal. Sincerely, LUTHER D. THOMAS, Clerk cc I] Ye NGA Inasd 2) Deputy Cerk 1:87~cv-01517 James M. Nabrit III, Esq. NAACP Legal Defense Fund 99 Hudson Street 16th Floor New York, NY 10013 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NOS. 88-8085 & 89-8085 WARREN MCCLESKEY, Petitioner /Appellee, Cross-Appellant, V. RALPH KEMP, WARDEN Respondent /Appellant, Cross—-Appellee MOTION TO CONSOLIDATE CASES ON APPEAL MICHAEL J. BOWERS Attorney General H. PERRY MICHAEL EXecutive Assistant ‘all ol a} {J Aan - 4 LLC LCUil ii vy Jenaera.; WILLIAM B. HILL, JR. Deputy Attorney General SUSAN V. BOLEYN Please serve: Senior Assistant Attorney General MARY BETH WESTMORELAND 132 State Judicial Bldg. MARY BETH WESTMORELAND 40 Capitol Square, S.W. Senior Assistant Atlanta, Georgia 30334 Attorney General (404) 656-3349 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NOS. 88-8085 & 89-8085 WARREN MCCLESKEY, Petitioner/Appellee, Cross-Appellant, Vv. RALPH KEMP, WARDEN Respondent /Appellant, Cross—-Appellee MOTION TO CONSOLIDATE CASES ON APPEAL COMES NOW Ralph Kemp, Warden, Appellant in the above-styled actions, through counsel, and moves this Court to consolidate the two above-styled cases for consideration by this Court on appeal. The initial appeal filed by the Appellant/Warden in this action was from the granting of habeas corpus relief by the United States District Court. The second appeal filed was pursuant to the denial of the motion for relief from judgment under Rule 60(b) by the United States District Court involving the same federal habeas corpus action. This Court has ov ii previously stayed the briefing schedule pending resolution 2 of the Rule 60(b) motion. In order to simplify the record before this Court, allow the simultaneous briefing of all issues by both parties and 1n order to expedite the appeal to process, the Appellant/Warden would request that these two appeals be consolidated for purposes of review 1n this court, Additionally, the Appellant/Warden would request that this court supplement the record in case Nos. 88-8085 or 89-8085 with all additional documents and pleadings filed in the district court since the time the original record was transmitted to this court. CONCLUSION Wherefore, Appellant prays that the instant motion to consolidate be granted. Respectfully submitted, MICHAEL J. BOWERS 071650 Attorney General H. PERRY MICHAEL 504000 Executive Assistant Attorney General INR. Sh WILLIAM B. HILL, JR) Vile J354725 Deputy Attorney Gerfokd1 SUSAN V. a SYN / TEE Senior Assistant Attorney General eed Aes [hes hype ly uo Z N MARY/BETH WESTMORELAND 01 Senildr Assistant Attorney dene ral wl Please serve: MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square Atlanta, Georgia 30334 (404) 656-3349 A 2 CERTIFICATE OF SERVICE I do hereby certify that I have this day served the within and foregoing MOTION, prior to filing the same, by depositing a copy thereof, postage prepaid, 1n the United States Mail, properly addressed upon: Robert H., Stroup 141 Walton Street Atlanta, GA 30303 John Charles Boger 99 Hudson Street l6th Floor ; New York, New York 10013. This /foy¥Aday of February, 1989. Tnited States Court of Appeals Eleventh Circuit 56 Forsyth Street, NW, Atlanta, Georgia 30303 fab Miguel J. Cortez : February 23, 1989 In Replying Give Number Clerk Of Case And Names Of Parties MEMORANDUM TO ADDRESSEES LISTED BELOW Nos. 88-8085 & 89-8085 - MCCLESKEY V., KEMP The following action has been taken in the referenced case: X The enclosed order has been ENTERED. An extension of time has been granted to and including for filing appellant's/petitioner's brief. for filing appellee's/respondent's brief. for filing a reply brief. : for filing a petition for rehearing, which is due to be filed in the clerk's office on said date. for filing this extension is granted subject to the condition that no additional extensions will be requested by the movant and that the specified document will be filed on or before this new date. Motion to consolidate granted. _X Motion to supplement or correct the record granted. Sincerely, MIGUEL J. CORTEZ, Clerk By: Matt Davidson Deputy Clerk MOT-2 7/87 Mary Beth Westmoreland, Esq. Robert H. Stroup, Esq. John Charles Boger, Esq. ren IN THE UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS ELEVENTH CIRCUIT _ FOR THE ELEVENTH CIRCUIT FEB 2 3 1989 Nos. 88-8085 & 89-8085 AL A 4. Len A D MIGUEL J. CORTEZ CLERK A AEE T— WARREN McCLESKEY, Petitioner-Appellee, Cross—-Appellant, versus RALPH M. KEMP, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross—-Appellee. WARREN McCLESKEY, Petitioner-Appellee, versus RALPH KEMP, etc., Respondent-Appellant. Appeals from the United States District Court for the Northern District of Georgia ORDER: Appellant Kemp's motion to consolidate appeal no. 88-8085 with appeal no. 89-8085 is Grenled : Appellant Kemp's motion to supplement the record on appeal is Gperled GR els A er. UNITED STATES CIRCUIT JUDGE 1:87-cv—-01517 Julius L. Chambers, Esq. NAACP Legal Defense Fund 99 Hudson Street 16th Floor New York, NY 10013 dluited Btates District Gow NORTHERN DISTRICT OF GEORGIA 2211 UNITED STATES COURTHOUSE 73 SPRING STRELT, 5.wW, LUTHER D. THOMAS ATLANTA, GEORGIA 30335 CLERK March 31. 1989 Mr. Wiguel J. Cortez, Jr., Clerk D.C. No. 1:87-CV-1517-J0F United States Court of Appeals, Eleventh Circuit | 50: Spring Street, S.4. U.S.C.A. No. 89-8085 tltanta, GA 30303-3147 IN RE: WARREN MCCLESKEY VS RALPH M. KEMP, WARDEN Rok kok ok ohuik x ddahak de kak Kk Rididiih RRR Ik RAK Rk hh RR RR RA Tw hi nclosed are documents regarding an appeal in this matter. Please acknowledge receipt on he enclosed copy of this letter. Certified copy of notice of appeal, docket entries, judgement and opinion/order appealed from, enclosed. If opinion/order was oral, please check. First Notice of Appeal: Yes HO Date(s) of other notices: Supplemental XX Certified record on appeal consisting of: 1 volume(s) of pleadings, etc.: Volume(s) of transcripts; Volume(s) of exhibits/depositions. Other: There was no hearing from which a transcript could be made. Copy of CJA form appointing counsel. The following materials were SEALED in this court (order enclosed): The appellate docket fee has been paid Yes No; Date(s) paid Appellant has been granted/denied leave to appeal in forma pauperis (copy of order granting/denying IFP and/or Certificate of Probable Cause is enclosed). The Judge or Magistrate appealed from is The Court Reporter(s) are This is an appeal of a bankruptcy order. Bankruptcy Judge: This is a DEATII PENALTY appeal. CC: Sincerely LUTHER D. THOMAS, Clerk rn 0 ALY Deputy Clerk United States Court of Appeals Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, Georgia 30303 Miguel J. Cortez April 3, 1989 In Replying Give Number Clerk Of Case And Names of Parties MEMORANDUM TO COUNSEL OR PARTIES: RE: Nos. 88-8085 & 89-8085 —- MCCLESKEY V. ZANT DC DKT NO: 87-CV+1517 Pursuant to Fed.R.App.P. 12(b), be advised that the record is complete for purposes of appeal. Appellant’s brief and record excerpts are due within 40 days from this date. In cross appeals, the plaintiff in the court below is deemed the appellant unless the parties other agree. See Fed.R.App.P. 28, 30, 31 and 32, and the corresponding circuit rules for further information on preparing briefs and record excerpts. Enclosed is an indexed copy of the certified district court docket entries which show material certified to this court as the record. Counsel are requested to use this docket sheet and their own file copies of the court papers in preparing the brief and record excerpts. Please refer to the attached sheet for information on referencing the record. Both appellant and appellee are urged to review these entries promptly as extensions to the briefing schedule are disfavored. If the record is incomplete for purposes of appeal you should within fourteen (14) days request the district court to supplement the record [See Fed.R.App.P. 10(e)], and notify us that you have done so. (Please note that such a request does not itself interrupt or extend the briefing schedule established above). If the record on appeal is needed to prepare your brief, it will be made available to you upon request. However, you will not be granted an extension of time to file your brief simply because of the lapse of time between the beginning of the briefing schedule and your receipt of the record. Sincerely, MIGUEL J. CORTEZ, Clerk Matt Davidson By: Deputy Clerk NOTE TO COUNSEL: Please note that the record on appeal in 88-8085 has this day been supplemented with 1 vol. of lst supplemental record which contains the Rule 60(b) pleadings (see last page of the attached district court docket sheet). Encl. BR=~2 “{1/89) Mary Beth Westmoreland, Esq. Robert #H. Stroup, Esq. Julius. lL. Chambers, Esq. John Charles Boger, Esq. Lite Cir. R. 28-2 Briefs—Contents. Each pnacpal aad amicus sre! nail connst, 12 the order usted. of (he fodowng: (a) Cover Elements 10 be howe on the cover page include the ame of this court, Se ber, aame of parties, jurisdiction from which the appeal is being taken, identificazica of brief (e.g. appetiang, appeiies), and came of atorney: (¢) Statement of J Each brief shall inciuds a concise statement of the seLSTy OF jurisdiction of this court, coataining citations of authority when necessary. n Statement of the Issues. : : : -(g) Statement of the Is the stacement of the case, 88 in olf other sessions: of the rey regarding mener ia the recerd shall bs sappermed by 8 nt reference to the volume, document cumber and page sumber of the original ressrd- where the master reiied upoa is to be found. The statement of the case shail includes (I) course of proceedings and dispositions ia the court below: IN A CRIME. oo NAL CASE THE PARTY SHOULD STATE WHETHER THE = DEFENDANT [S INCARCERATED: 4 Raine OF 1h 14. A AIRE, tae oF foie SoA NA standard of professionalism. It must state the facts accurately, thoss "favorable and thoss unfavorabis to the party. Inference draws from facts ? must be identified as such; (iif) Sateen Lie HAMAS 0h scopb ol soviem 150 rach Soasiation. Pia example, where the appeal is from an exercise of district court discretion: there shail be a statement that the standard of review is whether the districg court abused its discretion. The appropriate standard or scope of review for other contentions should be similarly indicated, ¢.g., that the districs court erred in formulating or applying a rule of law; or that there is in ~ sufficient evidence to support a verdict; or that fact findings of the trial judge are clearly erroneous under Fed.R.Civ.P. 52(a); or that there is a lack of substantial evidence in the record as a whole to support the fac- tual findings of an administrative agency, or that the agency’s action, findings and conclusions should be heid unlawful and set aside for the Non reasons set forth in § U.S.C. § 706(2). (h) Summary of the Argument. The opening briefs of the parties shall also contain a summary of argument, suitably paragraphed, which should be a clear, ac- curate and succinct condensation of the argument actually made in the body of the brief..It should not be a mere repetition of the headings under which the argument - is arranged. [t should seldom exceed two and never five pages. ( Argument and Citations of Authority. Citations of authority in the brief shall comply with the rules of citation in the latest edition of A Uniform S of Citation. State case references should also cite national reporter cToss references a Southern Reporter, Southeast Reporter). (j) Conclusion. (k) Certificate of Service. 11th Cir. R. 28-3 R Brief. A reply brief goad contain oaly irems (a), (d), (0), (i), and (k) of Lith eh 11th Cir. R. 28-4 Briefs from Party Represented by Caunsel. When a pasty is rep- resented by counsel, the clerk may not accept a brief from the party. INSTRUCTIONS ON MAKING PROPER RECORD REFERENCES Record references to pleadings and other court papers may be made by referring to the volume number, document number, and page number within the document. Volume numbers and document numbers are shown on the enclosed district court docket entries. If not all documents bearing & document number have been included in the record transmitted to the court of appeals, the document numbers of those documents transmitted have been circled. If no document numbers are circled, all filings bearing document numbers are included {in the record transmitted to the court of appeals. For example, the reference R4-9-6 indicates: record = volume # document # . page # reference Record references to transcripts may be cited by referring to the volume number assigned by the court and written in the margin next to the docket entry filing the transcript, and the page number. : For example, the reference R8-32 indicates: R 8 v 32. record voluze # page # reference Use the designatfen S2 preceded by the supplement number when refgazencing =a Supplemental Record (e.g., 1SR, 23R, ete.) - ERC, NOTE: DG NOT REFERENCE TRANSCRIPTS BY THE VOLUME NUMBER WHICH WAS ASSIGNED BY THE COURT REPORTER. You must use the volume number assigned by the court and written in the margin next to the docket entry filing the. transcript. Transcript volume numbers follow in sequence after the final volume of pleadings and other court papers, and . are numbered in chronological order by date of hearing. Duplicate transcripts (including excerpts when a transcript of the entire proceeding or trial is later filed) are excluded from the record. : Fd U.S.iDistrict District Court for the Northern Lk. S. CIVIL DOCKET FOR CASE #: McCleskey v. et al Assigned to: Demand: $0,000 Lead Docket: None Dkt# in other court: None Kemp, Cause: WARREN MCCLESKEY petitioner LL i RALPH M. KEMP, Superintendent, Georgia Diagnostic and Classification Center respondent Docket as of March 25, -1988 9:11 28:2254 Petition for Writ of Habeas Corpus DEATH Court District of Georgia (Atlanta) 872-Cv—-1517 Filed: 7/7/87 Judge J. Owen Forrester 530 Federal Question Nature of Suit: Jurisdiction: (State) Robert H. Stroup [COR LD NTC] Office of Robert H. 141 Walton Street Atlanta, GA 30303 404-522-8500 Stroup Julius L. Chambers, [COR LD NTC] James M. Nabrit, [COR LD NTC] NAACP Legal Defense Fund 09 Hudson Street 16th Floor New York, NY 212-219-1900 phv ITY, phy 10013 William Bradley Hill, Jr. [COR LD NTC] Mary Beth Westmoreland {COR 1D NIC] Office of State Attorney General 40 Capitol Square, S.W. 132 Judicial Building anta, ey. 3 Sra 0334 ATTEST: A TRUE COPY : CERT] D THIS 24 Paes, 24 B Thoma Fo vi Rover Deputy Clerk al Page 1 Proceedings include all events. / J: A 1:%7cvl1bl7 McCleskey v. Kemp, et al DEATH BEG Vo do 1/1/87 ©, PETITION for writ of habeas corpus with request, to proceed in forma pauperis with ORDER by Judge J. O. Forrester GRANTING request [1-2] . (yrm) [Entry-date . 7/8/37] 7/3/57 2) MOTION by petitioner Warren McCleskey for discovery with attachments. (yrm) [Entry date 7/8/87] 7/71/87 © MOTION by petitioner Warren McCleskey for stay of execution with attachments. (yrm) [Entry date 7/8/87] 1/8/87 ph (yrm) £7 7/8/87 (3) Response by respondent Ralph M. Kemp to petition for writ ,/ A of habeas corpus [1-1] with brief in support. (yrm) Vol ~~ 7/8/87 5) RESPONSE by respondent Ralph M. Kemp motion for discovery by Warren McCleskey [2-1] (yrm) 7/8/87 ie SUBMITTED to Judge J. 0. Forrester on motion for stay of execution by Warren McCleskey [3-1], motion for discovery by Warren McCleskey (2-11, order [1-3], petition for writ of habeas corpus [1-1] (yrm) 7/8/57 ) Affidavit of John Booger & Robert Stroup filled. (4t) [Entry date 7/16/87] 7/8/87 — HEARING held on petition for writ of habeas corpus [1-1] before Judge J. 0. Forrester . Affidavits of John C. Boger 5% Robert H. Stroup filed (also marked as exhs by pltf. #1 '& 2. Order directing respondent to produce petitioner for hrg. filed (executed by state) (I don't find this order). R. Stroup, R. Parker, C. Hamilton & W. Harris sworn § testified. PltF. exhs 3,4,5,6,7,8,9 ADMITTED. (Order above that IT could not find wag rec'd in office 8/10 from judge's office and stamped filed 7/8/87.) (dt) [Entry date 7/16/87] [Fdit date 9/8/87] 1/8/87 (0) ORDER that respondent to produce Mr. McCleskey for hrg on 3/8/87 by Judge J. O. Forrester. (4dr) [Entry date 8/24/87] 7/3/87 Nii HEARING continued on petition for writ of habeas corpus [1-1] before Judge J. QO. Forrester W.Harris, W. Jowers?, C. Jackson, 8S. Dorsey, R. Parker, D. Kelsey, «l, Worthy all sworn & testified. Pltf's exh 10 ADMITTED. Court verbally stayed the execution of petitioner set for 7/14/87 pending further evidentiary hrg to be held the first week in August, (dt) [Entry date 7/16/87] 7/10/87 (5) ORDER GRANTING motion for stay of execution by Warren McCleskey [3-1] by Judge. J. O. Forrester . ‘co 7/10 (yim) ont Vol 1 Docket as of March 25,1988 9:11 am Page 2 co 4 ’ " Proceedings include all events. Jo<43 1:87cv1517 McCleskey v. Kemp, et al DEATH Cont Vol ] y abun." 7/10/87 &) Acknowledgment by dft that appropriate state officials have been telephonically notified of the stay of execution. (dt) [Entry date 7/16/87] [Edit date 2/4/88] 7/14/37" ~~ Transcript filed for dates of 7/9/87. 4{4tL) [Entry date 7/20/87] 2/15/87 —= Transcript filed for dates of 7/8/87. {(4t) [Entry date 7/21/87] = —— 8/3/57 (2/ ORDER DIRECTING respondent to produce the petitioner for hrg. on 8/47/8% at 9:30 a.m. by Judge J. O. Forrester ..cC (dt) [Entry date 8/5/87] 3 8/5/87 (0) MOTION by petitioner Warren McCleskey to prohibit recall of witnesses with brief in support. (dt) [Entry date 8/6/87] 8/Y0/F + = Evidentiary hearing resumed from July 9, 1987 . U. Worthy, C. Hamilton, S. Dorsey, W. Jowers, W. Harris, R. Parker all sworn & testified. Pltf's exh 16 ADMITTED. Petitioners post-hearing brief due w/in 30 days from today (9/10/87) Respondent's reply due w/in 10 days from 9/10/87. Clerk to submit file after conclusion of briefing schedule. (dt) [Entry date 8/24/87] “~~ 8/10/87 a2) RESPONSE by respondent Ralph M. Kemp in opposition to motion to prohibit recall of witnesses by Warren McCleskey [10-1] {rec'd Dy me 8/21/87) (dt) {Entry date 8/24/87) 8/17/87 ®, ORDER Federal Public Defender Program, Inc. 1s appointed to represent plft. by Judge J. O. Forrester .cc (db) [Entry date 9/3/87] 9/9/87 (is) MOTION by petitioner Warren McCleskey to exceed page limit with brief in support. (dt) [Entry date ..9/11/87) 8/9/87 @) POST HEARING MEMORANDUM of Law by petitioner Warren McCleskey (dt) [Entry date 9/11/87] oT, 9/14/87 (6) Application for. leave of absence of Robert H. Stroup w/prop order. to JOF. (dt) [Entry date 9/15/87] O/I5/8% vr Transcript filed for dates of 8/10/87. (dt) [Entry date 0/17/87) 0/18/87 17 ORDER by ct dep. GRANTING application motion for leave of absence of Robert H. Stroup [16-1] beginning 10/23/87 and extending through 10/30/87 for Robert H. Stroup .. CC (dt) [Entry date 9/21/87) 0/21/87 ©, MOTION by respondent Ralph M. Kemp to extend time to file briefito 9/28/87 with brief in support. to JOF any action pow. (8b) [Entry date 9/22/87] \ ) \ ) Pocket ag of March 25, 1988 9:11 .am Page 3 CONT. Vo L ] Proceedings include all events. 1:87cv1517 McCleskey v. Kemp, et al DEATH 9/23/87 (19) ORDER GRANTING motion to extend time to file brief to 9/28/87 by Ralph M. Kemp [18-1] by Judge J. O. Forrester cc. Order. is on motion of 9/21/87 indicated as granted. (dt) [Entry date 9/28/87] ™ \/ 8/29/87 im SUBMITTED: to Judge J. 'O. Forrester on motion to eXCeed mv = 7 Ah l = page limit: by Warren McCleskey [14-1] . (4t) Sel Vol < 10/1/87 (20) POST-HEARING Brief by respondent Ralph M. Kemp. to JOF (dt) [Entry date 10/5/87] 10/1/87 (21) POST-HEARING Reply Brief by petitioner Warren McCleskey. to JOF. (dt) [Entry date 10/5/37] 10/9/87 —— SUBMITTED to Judge J. O. Forrester on briefs.. (dt) 12/3/87 == Steno notes of proceedings held July 8 & Aug. 10,1987 before Judge J. O. Forrester , by . (db) 12/23/87 (22) ORDER GRANTING IN PART AND DENYING IN PART petition for writ of habeas corpus [1-1], (see order) DENYING motion for discovery by Warren McCleskey [2-1], GRANTING motion to exceed page limit by Warren McCleskey [14-1] by Judge J. O. Forrester .. cc (dt) [Entry date 12/24/87] —— 12/23/87(23) JUDGMENT ENTERED for petitioner Warren McCleskey against respondent, Ralph M. Kemp, Warden directing the respondent to re-try petitioner within 120:days from receipt of the 12/13/87 ~snunc pro. tunc for 12/23/87; (copies to counsel - judgment entered with permission of JOF) (db) [Entry date 1/26/88] 1/4/88 — Steno notes of proceedings held July 8, 1987 before Judge J. "0. Forrester , by . (4) 1/15/58 Gs) NOTICE OF APPEAL from order [22-1] by respondent Ralph M. Kemp. {c.dkt.0.].t0 USCA 1/27/88) ACK 88-3085 (db) [Entry date 1/27/88] [Edit date 2/25/88] : 1/15/88 (25) MOTION by respondent Ralph M. Kemp for stay of execution with brief in support. (db) [Entry date 1/27/88] 1/21/88 (2) NOTICE OF CROSS—-APPEAL [24-1] by petitioner Warren McCleskey. ACK 88-8086 (db) [Entry date 2/3/88] [Edit date 2/25/88] 1/27/88 (27) Certificate of probable cause requested by petitioner with memo in support and proposed order. (db) [Entry date. 2/3/58] 2/3/8% een SUBMITTED to Judge J. 0. Forrester on probable cause certlificate/certification {27-11 and MOTION for stay of judgment. (db) ) / [ f -“ Docketl as of March:25, 1988 9:11 am Page 4 Cont Vo | Proceedings include all events. Ve 1 4 \/ - 1:87cvil51l7 McCleskey v. Kemp, et al DEATH CONT Yo Li / ZZ) \ 3/8/88 {28 ORDER DIRECTING that there exists probable cause to appeal by Judge J. O. Forrester filed. cc (cert cpy to USCA). (1k) [Entry date 3/14/88] 3/9/88. (29) ORDER GRANTING motion for stay of execution by Ralph M. Kemp [25-1] staying judgment {23-1] untll the issuance of the mandate of the 11th Circuit Court of Appeals and until that mandate is made the judgment of this court, thereby completing the appellate process by Judge J. 0. Forrester CC ‘{certrcpy to USCA). {lk) [Entry date 3/16/88] Bi tr END: 0. 3/9/88 ef File retained by court. (lk) [Entry date 3/16/88] 3/17/88 30 Forthwith letter. (1k) [Entry date 3/21/88] Pocket as of March 25, 1988 9:11 .am Page 5 Proceedings include all events. 1:87cv1517 3/8/88 28 3/9/88 29 3/9/88 —-— 3/17/88 30 3/24/88 — McCleskey v. Kemp, et al ORDER DIRECTING that there exists probable cause to appeal by Judge J. O. Forrester filed. cc {cert .cpy to USCA). (lk) [Entry date 3/14/88] ORDER GRANTING motion for stay of execution by Ralph M. Kemp [25-1] staying judgment [23-1] until the issuance of the mandate of the 11th Circuit Court of Appeals and until that mandate is made the judgment of this court, thereby completing the appellate process by Judge J. O. Forrester . CC (cert cpy to USCA). ACK (lk) [Entry date 3/16/88] [Edit date 3/25/88] File retained by court. (1k) [Entry date 3/16/88] Forthwith letter. (lk) [Entry date 3/21/88] Certified and TRANSMITTED RECORD on to U.S. Court of’ Appeals. ACK (er) [Entry date 3/25/88] [Edit date 4/14/88] 5/6/88 GY 5/13/88 G2) 5/23/88 —- 6/3/88 ( 33 6/17/88 (34 6/23/88 —- 8/1/88 (33) 8/2/88 TT BEGIN VOLT, 182 supieme tos MOTION by respondent Ralph M. Kemp for relief from final judgment pursuant to Rule 60(B) with brief in support. (1k) [Entry date 5/12/88] RESPONSE by petitioner Warren McCleskey to motion for relief from final judgment pursuant to Rule 60(B) by Ralph M. Kemp [31-1] (lk) [Entry date 5/23/88] SUBMITTED to Judge J. O. Forrester on motion for relief from final judgment pursuant to Rule 60(B) by Ralph M. Kemp [31-1] tlk) Application for leave of absence of James M. Nabrit III from 7/7/88 thru 7/28/88 . (JOF for approval). (1k) [Entry date 6/13/88] ORDER ALLOWING extension of discovery until 8,/1/88 on the two issues of due diligence and of Officer Evans' knowledge in reference to the respondent's motion for relief from final judgment pursuant to Rule 60(b); response time for paper discovery is shortened to 15 days; if a dispute arises during discovery, parties are DIRECTED to seek a conference by Judge J. O, Porrester . cc (lk) Case closed administratively. (yrm) MOTION by petitioner Warren McCleskey to expand the record with brief in support. (1k) [Entry date 8/9/88] ORDER GRANTING application motion for leave of absence of James M. Nabrit 111 [33-1] from 7/7/88 thru 7/28/88 by Judge J. O. Forrester . cc (lk) [Entry date 8/10/88] Docket as of March 31, 1989 11:30 am Page 5 DEATH APPEAL 1:87cv1sBly 8/2/88 8/11/88 8/11/88 8/25/88 1/10/89 1/30/89 1/30/89 2/13/89 3/13/89 Proceedings include all events. McCleskey v. Kemp, et al DEATH APPEAL SUPPLEMENTAL BRIEF by respondent Ralph M. Kemp motion for relief from final judgment pursuant to Rule 60(B) by Ralph M. Kemp [31-1] (1k) [Entry date 8/10/88] Reply brief in response to respondent's supplement to motion for relief from final judgment uner Rule 60(b) by petitioner Warren McCleskey . (lk) [Entry date 8/18/88] Amendment (2nd) motion to expand the record [35-1] by petitioner Warren McCleskey . (lk) [Entry date 8/18/88] SUBMITTED to Judge J. O. Forrester on motion to expand the record by Warren McCleskey [35-1] (1k) ORDER GRANTING motion to expand the record by Warren - McCleskey [35-1] and respondent's motion for relief from final judgment is DENIED by Judge J. O. Forrester . cc (1k) [Entry date 1/11/89] NOTICE OF APPEAL from order [40-1] by respondent Ralph M. Remp . ‘cc (Cert cpy of order, docket & NOA to USCA). (1k) [Entry date 2/6/89] USCA appeal fees received $ 105.00 (1k) [Entry date 2/6/89] Acknowledgement by Court of Appeals on appeal by Ralph M. Remp [41-1] . USCA dkt no. 89-8085 (1k) [Entry date 2/17/89] FORTHWITH LETTER from U.S.C.A. (Please forward the supplemental record from the denial of the Rule 60(b) motion. (lk) [Entry date 3/17/89] END Lol ; Jt Supplement, Docket as of March 31, 1989 11:30 am Page 6 The Department of Lato State of Georgia Atlanta MICHAEL J. BOWERS 30334 ATTORNEY GENERAL 132 STATE JUDICIAL BUILDING TELEPHONE (404) 656-3300 FAX (404) 651-9148 May 18, 1989 Mr. Matt Davidson Deputy Clerk United States Court of Appeals Eleventh Circuit 56 Porsyth Street, N.W, Atlanta, Georgia 30303 RE: Warren McCleskey v. Walter Zant, Warden, No. 88-8085 and 89-8085. Dear Mr. Davidson: I am writing to advise you and to request that you advise the Court that there is a typographical error in the brief submitted on behalf of the Respondent/Appellant in the above-styled action. While the typographical error is short, it may cause some confusion on the part of the Court and counsel would wish to have the Court made aware of this error. Line 14 on page 85 of the brief should read as follows: "efforts by counsel for the Petitioner, including utilizing." The brief as it is presently submitted to the Court specifies counsel for the Respondent. I apologize to the Court for this typographical error, and I hope this does not cause too much inconvenience. Thank you for making the Court aware of this error. Sincerely, 4 WESTMORELAND Senior Assistant Attorney General MBW: jw ¢C:. Robert H.. Stroup John Charles Boger United States Court of Appeals Eleventh Circuit 56 Forsyth Street, NW, Atlanta, Georgia 30303 Miguel J. Cortez May 25, 1989 In Replying Give Number Clerk Of Case And Names Of Parties MEMORANDUM TO ADDRESSEES LISTED BELOW Nos. 88-8085 & 89-8085 - MCCLESKEY V. ZANT The following action has been taken in the referenced case: XX The enclosed order has been ENTERED. XX An extension of time has been granted to and including June 27, 1989, for filing appellant's/petitioner's brief. . XxX for filing appellee's/respondent's brief+cross-appellant's, for filing a reply brief. for filing a petition for rehearing, which is due to be filed in the clerk's office on said date. For filing this extension is granted subject to the condition that no additional extensions will be requested by the movant and that the specified document will be filed on or before this new date. Motion to consolidate granted. Motion to supplement or correct the record granted. XX Motion to file an oversized brief not exceeding 80 pages is granted. Sincerely, MIGUEL J. CORTEZ, Clerk By: Matt Davidson Deputy Clerk MOT-2 7/87 Robert H. Stroup, Esq. John Charles Boger, Esq. Mary Beth Westmoreland, Esq. IN THE UNITED STATES COURT OF APPEALS FILED EVENTH CI FOR THE ELEV RCL? U.S. COURT OF APPEALS NTH CIRCUIT MAY 2 5 1989 No. 88-8085 i 1 i WARREN MCCLESKEY, MIGUEL J. CORTEZ Petitioner-Appellee, CLERK Cross=-Appellafit +, rr versus WALTER ZANT, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee. No. 89-8085 WARREN MCCLESKEY, Petitioner-Appellee, versus WALTER ZANT, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellant. Appeals from the United States District Court for the Northern District of Georgia ORD E:Rs¢ Appellee/Cross-Appellant's motion for an extension of time to file a brief through June 27, 1989, is SaamtitL. . Appellee/Cross-Appellant's motion to file an oversized brief not exceeding 80 pages is Granted... Lee. Daopudal UNITED STATES CIRCUIT JUDGE Warren McCleskey D-003935 Box 3877, G4-100 G.D.C.C. Jackson, GA 30233 BE tats NOTICE TO ALL PARTIES: PLEASE FILL IN, SIGH AND RETURN------=- === (PLEASE PRINT OR hid (0 ERR ERY PLEASE RETURN THIS PRE-ADDRESSED, STAMPED POSTC bh itHoet DELAY ito wlio that ALL parties have Tecelved the calendar. You are requested to IIl1 In all blanks below, SIGN and return this postcard, even though you may not plan to present arqument. pos I hereby acknowledge receipt of a copy of the printed calendar showing case BC 8085 wo. -9085 , Waren MCleskey .. Walley Zant is to be argued at 45a... on Seplember 19 ' nT in Courtroom 339 . at Ania ; _ Conia (Clty) Attorney for Lh ren (Ms Closkey Your Signat Grulom. pene oc > Johu) Chores Boer we PST 29 wil: Attorney Boer will present argument for the above-named paity. J NOTE: Counsel presenting argument should personally appear in the Clerk's Office at the address listed on the calendar at least 30 minutes before court convenes. *U.S. GPO: 1988 532-463/60186 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NOS. 88-8085 89-8085 WARREN MCCLESKEY, Vis WALTER ZANT, WARDEN, Respondent/Appellant, Cross—-Appellee. MOTION TO EXCEED PAGE LIMITATION FOR PRINCIPAL BRIEF OF THE APPELLANT MICHAEL J. BOWERS Attorney General H. PERRY MICHAEL Executive Assistant Attorney General WILLIAM B. HILL, JR. Deputy Attorney General SUSAN V. BOLEYN Please serve: Senior Assistant Attorney General MARY BETH WESTMORELAND 132 state Judicial Bldg. MARY BETH WESTMORELAND 40 Capitol Square, S.W. Senior Assistant Atlanta, Georgia 30334 Attorney General (404) 656-3349 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NOS. 88-8085 89-8085 WARREN MCCLESKEY, Petitioner/Appellee, Cross—-Appellant, ¥Y. WALTER ZANT, WARDEN, Respondent/Appellant, Cross—-Appellee. MOTION TO EXCEED PAGE LIMITATION FOR PRINCIPAL BRIEF OF THE APPELLANT Comes now Walter Zant, Appellant in the above-styled action, through counsel, and moves this Court for permission to file a brief in excess of the 55 page limitation set out in Rule 28-1 of the Rules of this Court, showing and stating the following: This case is an appeal taken by the warden from the granting of habeas corpus relief by the United States District Court for the Northern District of Georgia and from the denial of a motion for relief from judgment under FP.R.Civ.P. 60(b). This case involves the imposition of the death penalty and has already been reviewed by the en banc court on a prior occasion. Evidentiary hearings were held on three separate days in the United States District Court for the Northern District of Georgia and that court granted relief in spite of Appellant's assertions that there was an abuse of the writ. Further, subsequent to that ruling, additional pleadings were filed requesting relief from judgment, including an additional deposition of one hundred pages and extensive pleadings. Due to the extensive factual development necessary to examine the issue presented by the granting of relief, that being, an allegation of a Sixth Amendment violation by the utilization of a state informant or agent, Appellant has found it necessary to exceed the initial page limitation provided by the rules of this Court. Further, the procedural history alone is quite lengthy and Appellant felt it necessary to set forth the entire procedural history and facts for consideration by this Court. Lastly, the issue regarding the request for relief from judgment will require detailed factual and legal development The instant request is not made for the purpose of burdening the court, but is based upon Appellant's belief that this is necessary to fully brief the issues presented tO the court. CONCLUSION WHEREFORE, based upon all the foregoing, Appellant respectfully requests permission to file a brief in excess Of the page limit up to and including 95 pages in length. ba ’ 2 de on Respectfully submitted, MICHAEL J. BOWERS 071650 Attorney General H. PERRY MICHAEL 504000 Executive Assistant Attorney General AE MB. 7 Deputy Attorney Ge An Lf : 2% SUSAN V. BOLEYN 7 ' 0653850 Senior Assistant Attorney General rors a Lo. ~g V4 TH WESTMORELAND 50150 Assistant Attorney General Please serve: MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square Atlanta, Georgia 30334 (404) 656-3349 CERTIPICATE OP SERVICE I do hereby certify that I have this day served the within and foregoing motion, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: Robert B. Stroup 141 Walton Street Atlanta, Georgia 30303 John Charles Boger 99 Hudson Street l6th Floor New York, New York 10013 Thi spfoffh day of April, 1939, Whos uh De oriecele act ‘MARY BETH WESTMORELAND Seni Assistant Attorney General United States Court of Appeals Eleventh Circuit 56 Forsyth Street, NNW. Atlanta, Georgia 30303 Ih Reliving Give Numbe Miguel J. Cortez : D Rep Yip IVE Num g Pa April 26, 19839 Of Case And Names Of Parties MEMORANDUM TO ADDRESSEES LISTED BELOW Nos. 88-8085 & 89-3085 - MCCLESKEY V. ZANT The following action has been taken in the referenced case: XX The enclosed order has been ENTERED. An extension of time has been granted to and including for filing appellant's/petitioner's brief. - for filing appellee's/respondent's brief. for filing a reply brief. for filing a petition for rehearing, which is due to be filed in the clerk's office on said date. for filing this extension is granted subject to the condition that no additional extensions will be requested by the movant and that the specified document will be filed on or before this new date. Motion to consolidate granted. Motion to supplement or correct the record granted. Sincerely, MIGUEL J. CORTEZ, Clerk By: Matt Davidson Deputy Clerk MOT-2 Mary Beth Westmoreland, Esq. 7/87 Susan 'V. Boleyn, Esq. william 8B. Hill, Jr., Esg. Robert H, Stroup, Esq. Julius L. Chambers, Esq. James M., Nabrit, 11, Esq. John Charles Boger, Esq. FILED IN THE UNITED STATES coURT oF APPHALS US. COURT OF APPEALS ELEVENTH CIRCUIT FOR THE ELEVENTH CIRCUIT APR 26 1969 Bo. 88-2033 MIGUEL J. CORTEZ CLERK ras WARREN MCCLESKEY, Petitioner-Appellee, Croass=-Appellant, versus WALTER ZANT, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross=-Appellee, No. 89-8085 WARREN MCCLESKEY, Petitioner-Appellee, versus WALTER ZANT, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellant. ——— de SE SE. SEL GEN GEL SED SE NE EEF WE pe en no — de wh Appeals from the United States District Court for the Northern District of Georgila WE WY pe ome ma mn on oe SE Mk SE AE EE ES WES SE SE WP YE Ye me ee OD BR DER: Appellant/Cross—-Appellee's motion to file an oversized brief not exceeding 95 pages is gg Ge, een Ce nr UNITED STH®TES CIRCUIT JUDGE United States Court of Appeals Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, Georgia 30303 wy Mige»l J. Cortez June 28, 1989 In Replying Give Number Clerk Of Case And Names Of Parties Luther D. Thomas Clerk, U. 8S. District Court 2211 U. SS. Courthouse 75 Spring St., S.W. Atlanta, GA 30335 No. 88-8085 - MCCLESKEY V. ZANT (D. C. Docket No. 87-CV-1517) Dear Mr. Thomas: Enclosed is a certified copy of a motion of appellee and entry of dismissal in the above referenced appeal. The dismissal applies only to the notice of cross appeal which was filed January 21, 1988. = The main notice of appeal filed January 15, 1988 remains open. Sincerely, MIGUEL J. CORTEZ, Clerk At {ston Deputy Clerk /mcd CC: ‘Robert H. Stroup, Esqg. John Charles Boger, Esq. Mary Beth Westmoreland, Esq. FILED U.S. COURT OF APPEALS ENTH CIRCUIT JUN 2 8 1389 et MA t r r t b i I JUN © 819 MIGUEL J. CORTEZ CLERK ar samy ~a TL ANTA, IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NOS. 88-8085 & 89-8085 WARREN McCLESKEY, Petitioner /Appellee, = Cross-Apellant, Vv. WALTER ZANT, Warden, Respondent/Appellant, Cross-Appellee. MOTION FOR VOLUNTARY DISMISSAL Comes now Warren McCleskey, Appellee/Cross-Appellant in the above-styled action, through counsel, and moves to voluntarily dismiss his cross-appeal in No. 88-8085, Respectfully submitted, lobed XN. Seen ROBERT H. STROUP 141 Vialton St., ad Atlanta, Georgia 30303 JOHN CHARLES BOGER 99 Hudson St. 16th Floor New York, New York 10013 ATTORNEYS FOR APPELLEE CERTIFICATE OF SERVICE I do hereby certify that I have this day served he within and foregoing motion, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square, S.W. Atlanta, Georgia 30334 ris 20 day of Sete , 1939, Toba Freecs ROBERT H. STROUD ENTRY OF DISMISSAL Pursuant to the foregoing motion of appellee, Rule 42, FRAP, and Rule 42-1 (a) of this Court, the above referenced cross-appeal was duly entered dismissed this 28th day of June, 1989. MIGUEL J. CORTEZ Clerk of the United States Court of for the Eleventh Circuit v/v Fort lel Deputy Clerk FOR THE COURT - BY DIRECTION CUnited States Court of Appeals Eleventh Circuit 56 Forsyth Street, NW. Atlanta, Georgia 30303 August 25, 1989 Miguel J. Cortez Clerk In Replying Give Number Of Case And Names Of Parties NOTICE TO ALL COUNSEL OF RECORD No. 88-8085 & 89-8085 - WARREN MCCLESKEY V. WALTER ZANT, Superintendent, Georgia Diagnostic and Classification Center, Appellant. This will confirm my telephone conversations with you in which you were advised that oral argument in the above capital case has been scheduled for Tuesday, September 19, 1989, at the U. S. Court of Appeals Building at the above address, commencing at 11:45 a.m. Counsel will be allotted thirty (30) minutes oral argument time per side. Counsel presenting oral argument should check-in in Court- room 339 no later than 11:15 a.m. on the day of the hearing. Enclosed is a post card which we ask that you complete, sign and return to the Clerk's Office acknowleding receipt of the calendaring information. Sincerely, MIGUEL J. CORTEZ, Clerk hy, A av Jon Deputy Clerk /mcd Mary Beth Westmoreland, Esq. Robert H. Stroup, Esq. John Charles Boger, Esq. Nos. ATLANTA, GEORGIA 8/25/89 SPECIAL HEARING (DEATH PENALTY CASE) TUESDAY, SEPTEMBER 19, 1989 11:45 A.M. ATLANTA, GEORGIA COURTROOM 3 (Ve ) \O 88-8085 & 89-8085 - WARREN MCCLESKEY versus WALTER ZANT, Superintendent, Georgia Diagnostic and Classification Center, Appellant. UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NO. 88-8085 89-8085 WARREN MCCLESKEY, Petitioner/Appellee Vv. WALTER ZANT, WARDEN, Respondent/Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MOTION TO SUPPLEMENT THE RECORD MICHAEL J. BOWERS Attorney General H. PERRY MICHAPFRL Executive Assistant Attorney General WILLIAM B. HILL, JR. Deputy Attorney General SUSAN V. BOLEYN Please serve: Senior Assistant Attorney General MARY BETH WESTMORELAND 132 State Judicial Bldg. MARY BETH WESTMORELAND 40 Capitol Square, S.W. Senior Assistant Atlanta, Georgia 30334 Attorney General (404) 656-3349 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NO. 88-8085 89-8085 WARREN MCCLESKEY, Petitioner/Appellee, Y. WALTER ZANT, WARDEN, Respondent /Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MOTION TO SUPPLEMENT THE RECORD COMES NOW Walter Zant, Warden, Respondent/Appellant in the instant action and submits the presently filed motion to supplanant the record pending before this Court. Respondent would request that this Court either direct the district Court to forward to it the record in the first habeas corpus action involving the instant parties, that being McCleskey v. Zant, Civil Action No. C81-2434A, United States District Court, Northern District of Georgia, Atlanta Division, or provide the Respondent/Appellant with the opportunity to submit certain transcripts to this Court which Respondent feels may become necessary for this Court's review. On the day of oral argument before this Court, Respondent became aware of the fact that this Court did not have the prior record from the first federal habeas corpus action before it for consideration. Although this Court does have various portions of the first state habeas corpus proceeding, the Court apparently does not have the original trial transcript in its entirety nor the entire first state habeas corpus transcript. These documents were submitted to the district court in the first federal habeas corpus action. In pursuing the present habeas corpus action, rather than resubmit those documents to the district court, Respondent requested that the district court take judicial notice of those proceedings, Petitioner had no objection and the court agreed to do so. This is clearly appropriate under Allen v. Newsome, 705. F.28 934 (11th Cir. 1986). Thus, the district court had those documents before it in making its determination on the issues presently being considered by this Court. Clearly, this court has the inherent equitable power to supplement the record, particularly to include such a document as state court trial transcript. Dickerson v. Alabama, 667 F.28 1364, 1367 (llth Cir.,), cert denied, 459 U.S. 878 (1982). This is not a case of the Respondent requesting the court to consider documents not considered by the district court. Subsequent to the oral argument in this court, Respondent became concerned that the state habeas corpus transcript might be necessary for this Court's resolution of the question of abuse of the writ and feels certain that if this Court were to reach the merits of the issue presented, then the trial transcript would certainly be necessary to review the question of harmless error. Under these circumstances, Respondent feels that supplementation of the record in this Court is appropriate and virtually essential. CONCLUSION Wherefore, Respondent requests that this Court supplement the record in this case with the record from the district court in the former federal habeas corpus action of McCleskey v. Zant, No. C81-2434A, and issue an order directing the district court to send that record to this Court for its use. In the alternative, Respondent requests that this Court allow the Respondent to supplement the record in his matter by submitting a copy of the trial transcript and the first state habeas corpus transcript for this Court's utilization in its review of the issues. Respectfully submitted, MICHAEL J. BOWERS 071650 Attorney General H. PERRY MICHAEL 504000 Executive Assistant Attorney General Wi UA sn > AU, Sy 2 WILLIAM B.: HILL, JR, ¢ * 354725 Deputy Attorney General mar V. Prep SUSAN V. BOLEYN 7065850 Senior Assistant Attorney General el TN RA Seniff as "WESTMORELAND 750150 Seni Assistant Attorney General Please serve: MARY BETH WESTMORELAND 132 state Judicial Building 40 Capitol Square Atlanta, Georgia 30334 (404) 656-3349 CERTIFICATE OF SERVICE I do hereby certify that I have this day served the within and foregoing MOTION TO SUPPLEMENT THE RECORD, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: Roberti: H., Stroup 141 walton Street, N.W. Atlanta, Georgia 30303 John Charles Boger 99 Hudson Street 16th Ploor New York, New York 10013. This of October, 1989. Le "TH WESTMORELAND r Assistant Attorney General United States Court of Appeals Eleventh Circuit 56 Forsyth Street, NW. Atlanta, Georgia 30303 Miguel J. Cortez October 11, 1989 In Replying Give Number Clerk Of Case And Names Of Parties MEMORANDUM TO ADDRESSEES LISTED BELOW Nos. 88-8085 & 89-8085 —- MCCLESKEY .V. ZANT The following action has been taken in the referenced case: X The enclosed order has been ENTERED. An extension of time has been granted to and including for filing appellant's/petitioner's brief. for filing appellee's/respondent's brief. for filing a reply brief. for filing a petition for rehearing, which is due to be filed in the clerk's office on said date. ri for filling this extension is granted subject to the condition that no additional extensions will be requested by the movant and that the specified document will be filed on or before this new date. Motion to consolidate granted. Motion to supplement or correct the record granted. Sincerely, MIGUEL J. CORTEZ, Clerk By: Matt Davidson Deputy Clerk MOT-2 7/87 Mary Beth Westmoreland, Esq. Robert H. Stroup, Esqg. John Charles Boger, Esq. IN THE UNITED STATES COURT OF APPEALS Sao FOR THE ELEVENTH CIRCUIT FILED | U.S. COURT OF APPEALS ELEVENTH CIRCUIT _ aa. Nos. 88-8085 & 89-8085 ACT 4 | | MIGUEL J. CORTEZ Ai | CDW We RR { VEN WARREN MCCLESKEY, Petitioner-Appellee, versus RALPH M. KEMP, Superintendent, Georgia Diagnostic and Classification Center, ~ Respondent-Appellant. Appeal from the United States District Court for the Northern District of Georgia ORDER: Appellant's alternative motion to supplement the record on appeal with a copy of the trial transcript and the first state habeas corpus transcript is granted. pies. J pid UNITED STATES CIRCUIT JUDGE IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Nos. 88-8085 89-8085 WARREN MCCLESKEY, Petitioner-Appellee, -against- WALTER D. ZANT, Superintendent, Georgia Diagnostic & Classification Center, Respondent-Appellant. On Appeal From The United States District Court For The Northern District Of Georgia Atlanta Division APPLICATION OF PETITIONER-APPELLEE WARREN McCLESKEY TO FILE SUGGESTION OF REHEARING IN BANC IN EXCESS OF FIFTEEN PAGES Petitioner-appellee Warren McCleskey, by his undersigned counsel, respectfully applies to this Court for an order permitting the filing of a Suggestion for Rehearing In Banc in excess of fifteen pages. In support of his application, Warren McCleskey shows to the Court that additional pages are necessary, to permit the filing of a brief of thirty-three pages, because of the complex set of circumstances which is the basis for this suggestion for rehearing in banc. To adequately brief his grounds for rehearing in banc, Warren McCleskey has needed to set out in some detail (i) the procedural history of the various habeas proceedings, (ii) the evidence presented to the district court in the present habeas proceeding, and the district court's findings thereon, (iii) the state trial evidence regarding the circumstances of the crime, and (iv) the legal errors which petitioner contends the panel made in dealing with the constitutional issues presented. Because of the number of issues which require briefing in this suggestion for rehearing in banc, the additional pages requested are necessary for adequate presentation of those issues to the Court. Dated: December 12, 1989 Respectfully submitted, ROBERT 'H. STROUP 141 Walton St., N.W. Atlanta, Georgia 30303 (404) 522-8500 JULIUS L. CHAMBERS JOHN CHARLES BOGER 99 Hudson St. New York, N.Y. 10013 (212) 219-1900 ATTORNEYS FOR PETITIONER- APPELLEE WARREN McCLESKEY BY: Robern. Kcee, / CERTIFICATE OF SERVICE I hereby certify that I have served the opposing party the foregoing application by placing a copy of same in the United States mail, first-class postage affixed thereto and addressed to: Mary Beth Westmoreland, Esq. Assistant Attorney General 132 State Judicial Bldg. Atlanta, Georgia 30334 This 12th day of December, 1989. ROBERT H. STROUH/