Decision

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« NOU-22-'89 WED 14:49 ID:ROBERT WW. CULLEN TEL MNO:4@4 521-1929 HOZ1 PES 

PUBLISH 

IN THE UNITED STATES COURT OF APPEALS 

  

FOR THE ELEVENTH CIRCUIT 

  

Noa, BB=-808B5 & B9-8085 

  

WARREN MCCLESKEY, 

Patitionar-Appellea, 

varsus 

WALTER ZANT, Superintendent, 
Gaorgia Diagnostic and Classification Centar, 

Respondent-Appallant. 

  

Appeals from the United States District Court 
for the Northern District of Georgia. 
  

(November 22, 1983) 

Before KRAVITCH and EpsoNDsoN, Circuit Judes, and RONEY, Senior 
Circuit Judge, 

KRAVITCH, Circuit Judge: 

This is a consolidated appeal by the State of Georgia from 

the district court's grant of warren McCleskey's second pstition 

for a writ of habeas corpus and from the district court's denial 

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of the State's motion under Fed. R. Civ. P. 60(b) for relief from 

the judgment. The district court granted thea writ solely on the 

basis of McCleskey's claim that his sixth amendment rights had 

heen violated under Massiah v., United Stateg, 377 U.s. 201, 84 

S.Ct. 1199, 12 L.Ed.2d 246 (1964). Because we find that the 

district court abused its discretion in failing to dismiss 

McCleskey's Masgiah allegation as an abuse of the writ, ve 

ravarse the district court without reaching the marits of 

McCleskey's Massiah claim or of the Stata's 60(b) motion. 

I. FACTS’ 

McCleskey was arrested and charged with the murder of a 

police officer during an armed robbary of tha Dixie Furniture 

Store. The store was robbed by four men. Threa entered through 

the back door and one through the front. Each of the four men 

was armed. McCleskey had a .38 caliber Rossi white-handled, 

nickel=plated pistol, Ben Wright had a sawad-off shotgun, and the 

other two had blus steel pistols. The man who entarad through 

the front secured the stora, forcing the employees to lie on the 

floor. The others rounded up the employees in tha rear and began 

to tie them up with tape. The manager was forced at gunpoint to 

  

; The statement of facta is taken from the Georgia Supreme 
Court's opinion on direct appeal, MgCleakev Vv. The State, 245 Ga. 
108, 263 S.E.2d 146 (1980). 

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turn over the store receipts, his watch, and six dollars. 

Responding to a silent alarm, a police officer entered the store 

by the front door. He proceeded approximately fifteen feet down 

the center aisle. Two shots were fired. One shot struck the 

police officer in the head caging his death. The other shot 

glanced off a pocket lighter in the officer's pocket and lodged 

in a sofa. That bullet was recoverad. The robbers fled. 

Sometime later, McCleskey was arrested in connaction with another 

armed robbary. 

McClaskey was identified by two of the store personnel as 

the robber who came in the front door. Shortly after his arrest, 

McClaskay confessed to partictpativg in the robbery, but 

maintained that he was not the triggerman. One of his 

accomplices, Ben Wright, testified that McCleskey admitted to 

shooting the officer. Offie Evans, a jail inmate housed near 

McCleskey testified that McCleskey made a "jail house confession® 

in which he claimed he was the triggerman. The police officer 

was killed by a bullet fired from a .38 caliber Rossi handgun. 

Though the weapon was not recovered, McClaskey had stolen a .38 

caliber Rossi in a holdup of a Red Dot grocery store two months 

earlier. 

II. PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder and two counts of 

armad robbery. It sentenced McCleskay to death for the murder of 

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the police ofticer and to consecutive life sentences for the two 

robbery counts, In 1980, thesa convictions and sentences were 

affirmed by the Georgia Supreme Court, McCleskey v, State, 245 

Ga. 108, 263 S.E.24 146, cert. denied, 449 U.5. 891, 101 S.Ct. 

253, 66 L.Ed.2d 119 (1980). In January of 1981, McaCleskey 

petitioned for habeas corpus relief in the Superior Court of 

Butts County, asserting over twenty challenges to his conviction 

and sentence. In an amendment to his petition, McCleskey alleged 

a Mazsiah violation, claiming that the introduction into avidence 

of statemants he made to an informer violated his rights under 

the sixth amendment. See Magaiah v, United States, 377 U.S. 201, 

84 5.Ct. 1199. Tha petition was denied after an evidentiary 

hearing and tha Georgia Supreme Court denied McCleskey's 

application for a certificate of probable cause to appaal. The 

United States Supreme Court denied McClaskey's petition for 

certiorari. McCleskey v. Zant, 454 U.3. 1093, 102 8.Ct. 659, 70 

L.Ed.2d 631 (1981). 

McCleskey filed his first federal habeas patition in 

district court in Dacamber of 1981, asserting eighteen grounds 

for granting the writ. That petition did pot include a clain 

under Massiah. It did, however, include a claim under Giglio v. 

United States, 405 U.S. 150, 92 8.Ct., 763, 31 L.Ed.2d 104 (1972), 

alleging that the state prosecutor had failed to reveal that 

Offia Evans, one of its witnesses, had been promised favorable 

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traatment as a reward for his tastimony. In 1984, the district 

court granted habeas corpus relief as to McCleskay's Giglio 

claim. It ordered that his conviction and sentence for malice 

murder be set aside, but affirmed his convictions and sentences 

for armed robbery. MgCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga. 

1984). 

Both parties appealed and in 1985, the Eleventh Circuit, 

sitting en banc, reversed the district court's grant of the writ 

on the Giglio claim and affirmed on all claims denied by the 

district court. McCleskey v. Kemp, 753 F.2d 877 (llth Cir. 

1985) (en banc). MeClaskey then filed a patition for a writ of 

certiorari in the Supreme Court of the United states. The Supreme 

Court granted certiorari limited to consideration of the 

application of the Georgia death penalty and affirmed the 

Eleventh Circuit. MgCleskey v, Kemp, 481 U.8. 279, 107 8.Ct. 

1756, 9% L.Bd.2d 262, petition for rehearing denied, 482 U.S. 

920, 107 8.Ct. 3199, 96 L.Ed.2d4 686 (1987). 

McCleskey filed a subsequent petition for a writ of habeas 

corpus in state court in Juna of 1987. In an amendment to that 

petition, McCleskey once again raised a Magsiah claim, alleging 

that newly discovered avidence demonstrated that a jail inmate of 

McClaeskey's was acting on behalf of the State as an informant. 

The stata court granted the State's motion to dismiss and the 

Georgia Supreme Court denied McCleskey's application for a 

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certificate of probable cause. 

McCleskay filed the present petition for a writ of habeas 

corpus in federal district court in July of 1987, Aftar 

evidentiary hearings on the petition in July and August of 1987, 

the district court entered an order granting habeas corpus relief 

only as to McCleskey's murder conviction and sentence based upon 

the finding of a Massianh violation. McCleskey v. Kemp, No, CB87=- 

1517A (N.D. Ga. Dec. 23, 1987). 

The State now appeals the district court's grant of tha 

writ, claiming that the district court abused its discretion in 

failing to dismiss McCleskey's Massiah allegation as an abuse of 

the writ and that the district court erred in finding a violation 

of Massiah.’ 

III. ABUSE OF THE WRIT 

A. Bagkaround 

Under tha doctrine of "abuse of the writ," a federal 

court may decline to entertain a second or subsaquent habeas 

corpus petition that raises a claim that the patitionar did not 

  

1 Thiz court stayed the briefing achedula of tha appeal 
pending the Btatae's filing in district court of a motion under 
Fed.R.Civ.P. 60(b) for relief from the judgment based on the 
availability of witness Offie Evans. The district court denied the 
motion and this court granted the State's motion to consolidate the 
State's original appeal and its appeal from the denial of the 
motion for relief from the judgment. 

   
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raise in a prior petition, The doctrine is grounded in the 

court's equitable power to decline to entertain a habeas corpus 

petition properly within its jurisdiction when "a suitor's 

conduct in relation to the matter at hand . . . disentitle[s] him 

to the relief he seeks." Sanders v. United States, 373 U.S. 1, 

17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (quoting Fav v. 

Noia, 372 U.S. 391, 438, 83 S.Ct 822, 849, 9 L.Ed.2d 837 (1963)). 

The statutory basis for the doctrine of abuse of the writ in 

cases of successive petitions for habeas corpus can be found at 

28 U.8.C. § 2244(b)’ and Rule 9(b) of the Rules Governing section 

2254 Cases in tha United states District Courts’. These 

  

: 28 U.B.C. § 2244(b) states as follows: 

When after an evidentiary hearing on the merits of a 
material factual issue, or aftar a hearing on the merits 
of an issua of law, a person in gussoay pursuant to the 
judgment of a State court has been daniad by a court of 
the United States or a justice or judge of the United 
States release from custody or other remedy on an 
application for a writ of habeas corpus, a subsequent 
application for a writ of habeas corpus in bahalf of such 
parson need not be entertained by a court of the United 
States or a justice or judge of the United States unless 
tha 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, 
justice, or judge is satisfied that the applicant has not 
on the earlier application deliberately withheld the 
newly asserted ground or otherwise abused the writ. 

4 Rule 2(b) provides as follows: 

Successive Petitions. A second or successive petition may 
ba dismissed if the judge finds that it rails to allege 
new or different grounds for relief and tha prior 
detarmination was on tha merits or, if nev and differant 

. 

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provisions address the problem of prisoners filing the same 

claims in successive petitions as well az the problem of 

prisonars who abuse the writ by filing their claims piecemeal. A 

"successive petition" is one that raises a claim already 

adjudicated through a prior petition, while a petition that 

raises grounds for relief not raised in the prior petition is 

analyzed as an "abuse of the writ." Sees Gunn v, Newsome, 581 

F.2d 949, 955 n.6 (11th Cir. 1989) (en banc) (plurality opinion), 

petition for cert, filed, No. 89-611, 1589 WL 129621 (Oct. 16, 

1989). 

A federal court's decision to exercise its sgquitable power 

to dismiss a petition is based on different considerations in the 

two types of cases. In cases of successive petitions, equity 

usually will not permit a petitioner to reassert a claim resolved 

against him "in the hope of getting before a different judge in 

multijudge courts." See Sec. 2254 Cases R. 9 advisory 

committee's note. In cases of abuse of the writ, equity counsels 

against allowing "needless piecemeal litigation" or "collateral 

proceedings whose only purpose is to vex, harass, or delay." 

Sanders, 373 U.S. at 18, 83 5.Ct. at 1078. In both instances, 

the need for finality in criminal law counsels strongly against 

courts repeatedly reviewing criminal convictions. See Kuhlmann 

  

grounds are alleged, the Judge finds that the fallure of 
tha patitionar to assert those grounds in a prier 
petition constituted an abuse of the writ. 

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¥; Wilaon, 477 U.8. 436, 452-53, 106 B.Ct. 2616, 2626-27 (1986) 

‘(plurality opinion). 

The state has the burden of pleading that the habeas 

petitioner has abused the writ. Price v, Johnston, 334 U.S, 266, 

291-92, 68 B8.Ct. 1049, 1063, 92 L.E4Q.2d 1356 (1948). This 

circuit haa held that "[t]he state carries its burden by 

recounting the petitioner's writ history, identifying the claims 

net raised before the instant petition and alleging that the 

petitioner abused the writ in violation of 28 U.8.C. § 2254, Rule 

9(b)." Booker v. Wainwright, 764 F.2d 1371, 1376 (llth Cir. 

1985), geort, denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 

(1985). The State has clearly mat its burden here, as it is 

evident that McCleskey did not assert his Massiah claim in his 

first federal habeas petition. 

MaClaeskay's previous failure to assert the claim does not, 

howaver, raquire tha fedaral court to dismiss his petition, for 

the courts have recognized "not all piecemeal litigation is 

needless." Booker v, Wainwright, id.; gee also Haley v. Estelle, 

632 F.2d 1273, 1276 (5th Cir. 1980). Onca tha atate has alleged 

abuse of the writ, the petitioner must be afforded the 

opportunity to justify his previous failure to raise tha claim. 

  

: In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (llth 
Cir. 1981) (en banc), this court adoptad as binding precedent all 
decisions of the former Fifth Circuit handed down bafore October 
1, 1981. 

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In deciding whather a petitioner has presented sufficient 

justification, courts have required the petitioner to show that 

he 4id not deliberatasly abandon the claim and that his failure to 

raise it was not due to inexcusable neglect. See Woodard v. 

Hutchins, 464 U.S, 377, 379, 104 S.Ct. 752, 753 (1984) (per 

curiam) (Powell, J., concurring, joined by four other justices); 

Rempa v, Dugger, 874 F.2d 1385, 1391 (11th Cir. 1989), petition 

for cert, filed, No. B9-5277, 1989 WL 113448 (Aug. 4, 1989); Witt 

vy. Walnwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 454 

U.8, 877, 102 8.Ct. 357 (1981); Potts v, Zant, 638 F.2d 727, 740- 

41 (5th Cir. Unit B 1981), gert. denied, 454 U.S. 877, 102 5.Ct 

357 (1981). If a court determines that the petitioner has 

failed to carry his burden of disproving an abuse of the writ, it 

may dismiss the petition unleas the ends of justice demand that 

the court reach the merita. Sanders, 373 U.S. at 16-19, 83 §.Ct. 

at 1078=79; Demps Vv. Dugger, 874 F.2d at 1391; Davis v. Kemp, 829 

F.2d 1522, 1526 (llth Cir. 1987), cert, denied, 108 S.Ct. 1099, 

99 L.Ed.2d 262 (1988). 

Whether a sacond or subsequent petition is to ba dismissed 

on abuse of the writ grounds is left to the sound discretion of 

the district court. Sanders, 373 U.S. at 18, 83 S.Ct. at 1079: 

  

: In Steln v, Reynolds Securities, Inc.,, 667 F.2d 33 (11th 
Cir. 1582), this court adopted as binding precedent all decisions 
of Unit B of the former Fifth Circuit handed down after September 
30, 1981). 

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4 NOWV-Z2-89 WED 14:55 ID:ROBERT W. CULLEW TEL MHO:484 521-1929 jaz P12 

Darden v. Dudger, 825 F.2d 287, 294 (llth cir. 1987), gart. 

denied, 108 S.Ct. 1125, 99 L.Ed.2d 235 (1988) Eetta Vv, Zant, ©38 

F.2d at 741. Yet discretion in such matters is not unfettered, 

and its sound exercise will rarely permit a district court to 

hear a petition that clearly constitutes an abuse of the writ. 

Ses Gunn v. Newsome, 881 F.2d at 949. 

In the instant appeal, the district court found that 

McCleskey could not be said to have intentionally abandonad his 

claim. We disagree and find that the district court abused its 

discretion in failing to dismiss a clearly abusive petition. 

  

in his earlier federal petition is justified because at the time 

he filed that petition, he lacked the evidence to support such a 

claim. To demonstrate a violation of sixth amendment rights 

under Magsiah v. United States, 377 U.S. 201, 84 8.Ct. 1199, a 

defendant must show that the prosecution deliberately elicited 

incriminating statements from him in the absence of his lawyer. 

Magssiah itself involved statements made by a defendant frea on 

bail to a co-indictee in a car that had been wired by the 

government. In United Stateg v, Henry, 447 U.S. 264, 100 8.Ct. 

2183, 65 L.Ed.2d 11% (1980), tha Supreme Court applied Massiah to 

a situation in which incriminatory statements vere made to a 

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cellmate who was a government informant. In Kublnann v, Wilson, 

the Supreme Court stressed that a defandant alleging a Magsgiah 

violation "must demonstrate that the police and their informant 

tock some action, bayond merely listening, that was designed 

deliberately to elicit incriminating remarke." 477 U.S. at 459, 

106 2.Ct, at 2630.’ 

McCleskey bases his Massiah claim on two pleces of evidence, 

The first is a 21-page written statement of Offie Evans, a 

prisoner who was incarcerated in the cell next to McCleskey's 

when McCleskey was in the Fulton County Jail awaiting trial. 

Evans testified against McCleskey at trial, ralating several 

incriminating atatements made by McCleskey. The written 

statement, which had been given to the Atlanta Police Department 

in August of 1978, sats out these conversations in great detail, 

demonstrating that Evans lied to McCleskey in order to get 

information from him.’ McCleskey argues that the written 

statement shows evidence of an ab initio relationship between 
  

? 

In Lightbourpne v, Dugger, 829 F.2d 1012, led, — Y.8. _____, 109 S.ct. 329, 102 L.Ed.2d 346 (1988) (11th Cir. 1987), this circuit characterized petitioner's burden in a Henry claim as one involving two elements: "In order to establish a violation of the Sixth Amendment in a jailhouse informant case, the accused must show (1) that a fellow inmate was a government agent; and (2) that the inmate deliberately elicited incriminating statements from the accuged." Id. at 1020, 

$ For instance, Evans told McCleskey that his name was Charles, that he was the uncle of codefendant Ben Wright, and that he was supposed to be a participant in the robbery himself. 

12 

   
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Evans and the prosacution and is thus highly relevant to his 

Magsiah claim, 

The second piece of avidance McClaskey uses to support his 

Magsiah claim is the testimony of Ulysses Worthy who was captain 

of the day watch at the Fulton County Jail during the summer of 

1978. Worthy testified at two separate points during the 

district court hearings on McCleskey's second habeas patition. 

Though Worthy's testimony was at times confused and 

contradictory, the district court credited Worthy's assertion 

that at some point some officer involved with the case had asked 

that Evans be moved to a different cell. The district court 

judge relied heavily on Worthy's testimony in holding that 

McCleskey had presented a valid Massiah claim. In fact, he found 

that "(t)he lack of corroboration by other witnesses is not 

surprising; the other witnesses, like Assistant District Attorney 

Parker, had no reason to know of a raguest to move Evans or, like 

Datactive Dorsey, had an obvious interest in concealing any such 

arrangement. Worthy, by contrast, had no apparent interest or 

bias that would explain any conscious deception.” MNgCleskevy, No. 

C87-1517A, slip op. at 22. 

McClaskey maintains that he was unawara of both places of 

avidence critical to his Massiah claim until well after he filed 

his first federal habeas petition. It is uncontested that he did 

not obtain Evanas' statement until July of 1987 and that he did 

13 

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not know alot the existence of Worthy until the time of thea 

‘hearing on the secend federal habeas petition. The State 

strongly contends that habeas counsel realized or should have 

realized that Evans had made a written statement concerning his 

conversations with McCleskey and asserts that petitioner's 

counsel should have made some effort to obtain that statement. 

The district court found, however, that McCleskey was not in fact 

aware of the written statement, and we cannot say that this 

determination is clearly erroneous. 

Asauming that McCleskey was unaware of both pieces of 

evidence, the question before us is whether McCleskey's 

unawvaraness of the faostiay bases for his Masgiah claim at the 

time of his first federal habeas petition is sufficient to 

justify his failure to present the claim. The district court 

found that it was sufficient, holding that McCleskey's 

unawareness precluded a finding of deliberate abandonment of the 

claim, despite the fact that McCleskey had raised it in his first 

stata habeas petition. We disagree. 

In finding that McCleskey did not deliberately abandon his 

Magsiah claim, the district court stated that: 

First petitioner cannot be said to have 
intentionally abandoned this claim. Although 
petitioner did raise a Massiah claim in his first state 
petition, that claim was dropped because it was obvious 
that it could not succeed given the then-known facts. 
At the time of his first federal petition, petitioner 
was unaware of Evans' written statement, which, as 
noted above, contains strong indications of an ab 

14 

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jnitioc relationship between Evans and the authorities. 
Abandoning a claim whose supporting facts only later 
bacome evident is not an abandonment that "for 
strategic, tactical, or any other reasons . . . can be 
described as the deliberate by-passing of state 
procaduras." . . . Petitioner's Maggiah claim is 
therefore not an abuse of the writ on which no evidenca 
should have besn taken. This is not a casa whare 
petitioner has reserved his proof or delibarataly 
withheld his claim for a second petition. . . . Nor is 
the patitioner now raising an issue identical to one he 
en, considered without merit. 

McCleskey, No. C87-1517A, slip op. at 24 (citations omitted). 

This holding by the district court misconstrues the meaning 

of daliberate abandonment. McCleskey included a Massiah claim in 

his first state petition, dropped it in his first fedaral 

petition, and now aaserta it again in his second federal 

petition.” Given that McCleskey had asserted the Maggiash claim 

in hia first state habeas petition, it is clear that the issue 

was not unknown to him at the time of his first federal petition. 

Further, we must assuma that at the time McCleskey filed his 

first state habeas patition, counsel had determined that there 

was some factual basis for a Magsiah claim. Indeed, such a 

determination is not surprising. Not only was counsel aware that 

  

: In an amendment to his first state petition, McCleskey 
allagaed thati 

The introduction into evidence of petitioner's statements 
to an informer, elicited in a situation created to induca 
the petitioner to make incriminating statements without 
assistance of counsel, violated the petitioner's right 
to counsel under the Sixth Amendment to the Constitution 
of the United States and Section 2-111 of the 1976 
Constitution of tha State of Georgia. 

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J NOV-22-'33 WED 14:58 ID:ROBERT W. CULLEN TEL NO:4@4 521-1929 #931 P18 

Evans was in a cell naxt 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." The petitioner and his counsel did not accidentally 

fail to include the Maggiah claim in the federal petition, but 

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

it previously. This constitutes prima facie evidenca of 

deliberate abandonment. In Darden v. Dudger, we stated that: 

The record shows that the issus presanted in this third 
petition was specifically withdrawn from tha district 
court's consideration as being not wall founded. The 
issue was abandoned. Intentional abandonment of a 
claim is precisely the context that application of the 

concept of abuse of the writ is intended to address. 
Witt, 755 F.24 at 1397. Petitionar may ba daemaed to 
have waived his right to a hearing on a successive 
application for federal habeas relief when he 
dal iberately abandons one of his grounds at the first 
hearing. 

825 F.24 at 294. 

When asked at the second fedaral habeas hearing why he did 

not pursue the Masgiah claim in his first federal petition, 

counsal respondad that his efforts to find evidence in support of 

  

Evans testified at trial as to certain statements that 
McCleskey had made in prison. 

“" In Giglio v. United Stateg, 405 U.S. 150, 92 S.Ct. 763, 31 
L.Ed.2d 104 (1972), the Supreme Court held that the state violates 
due process when it obtains a conviction on the basis of a 
witness's testimony when the witness has failed to dlsclose a 
promise of favorable treatment from the prosecution. McCleskey 
included a Giglio claim in his first state and first federal habeas 
petitions. 

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the claim had failed. It appears, however, that these efforts 

were somewhat lacking, Counsel testified that he informally 

attempted to contact jailers at the Fulton County Jail, but that 

they could provide him with no information.” Ha also noted that 

at a deposition taken for the first state habeas hearing, Russell 

Parker, the District Attorney prosecuting the case, claimed that 

he was unaware of any instance in which Evans had worked for the 

Atlanta Police Department prior to his overhearing conversations 

at the Fulton County Jail. Counsel testified that he did not 

carry the Massjiah claim over into the faderal habeas petition 

because he "looked at what we had been able to develop in support 

of the claim factually in the state habeas proceeding and made 

the judgment that we didn't have the facts to support the claim 

  

12 At his second federal habeas hearing, the lawyer who 

represented McCleskey at the first federal habeas hearing testified 

that he "spoke with a couple of Atlanta Bureau of Police Services 

officers" in ordar to find out how to develop factual evidence in 

support of a claim. Pursuant to their suggestion, counssl spoke 

with two or three persons who were deputies at the Fulton County 

Jail, He testified that "none of them had any information. 

Basically they had no recollection of the circumstances regarding 

how Evang came to be assigned to the jail call that he was assigned 

to or of any conversations with the Atlanta Bureau of Police 

Services Detectives regarding Offie Evans' assignment to that Jail 

cell. 

Counsel apparently made no attempt to contact persons who 

clearly had contact with Evans and McCleskey at the Fulton County 

Jail. He testified that he did not speak to Detective Dorsey 

(mentioned by Evans in his testimony at the first state habeas 

hearing), to Detectives Jowers or Harris (officers who had 

investigated the McCleskey case), or Deputy Hamilton (who testified 

at trial regarding his contact with Mr. Evans). 

17 

22.88 je: D ROBERT WW. CLLLEHN FAGE.@19    



    
. MNOU-22-'89 WED 15:88 ID:ROBERT W. CULLEN TEL MO:4@4 521-1929 HET. P20 ee re 

and, therafora, did not bring it into federal court.” 

Abandoning a claim after initial investigatory efforts prove 

unsuccessful cannot insulate a petitioner from abuse of the writ. 

See Witt v. Wainwright, 755 F.2d at 1397 (insufficient to allege 

that evidence was not availabla if it was within petitioner's 

power to alicit such evidence at time of earlier petition): 

Woodard v. Hutchins, 464 U.8. 377, 379 & n.3, 104 8.Ct., 752, 753 

& n.3 (1984) (per curiam) (Powell, J., concurring, joined by four 

other justices) (petitioner found to have abused tha writ when he 

is unable to explain why examination providing evidence of 

insanity was not conducted earlier); Antone v. Dugger, 465 U.S. 

200, 205 & n.3, 206, 104 8.Ct. 962, 964 & n.3, 965, 79 L.Ed.2d 

147 (1984) (per curiam) (haste with which first habeas petition 

prepared does not require courts to considar claims withheld from 

that petition if substance could have been presented in first 

petition). 

McCleskey places great emphasis on tha fact that the state 

allegedly withheld Evana' 21-page statement from both trial and 

habeas counsel. The statement was ultimately obtained in June of 

1987 through a request pursuant to the Georgia Open Racords Act, 

0.C.G.A. § 50-18-72(a). It is clear, however, that the statement 

itself does not demonstrate the existence of a Magsiah violation. 

At most, it was simply the catalyst that caused counsel to pursue 

the Magsiah claim more vigorously. The key pieca of avidence 

18 

83 JE: 1b ROBERT WW. CULLEN FAGE . BZB    



    

. NOU-22-'89 WED 15:08 ID:ROBERT W. CULLEN TEL MO:4B4 521-1929 HI31 F21 

supporting McClaskey's Magsiah claim was the testimony of Worthy, 

‘who testified for the first time at the second federal habeas 

hearing in July of 1987. Counsel claims that he did not discover 

Worthy until he engaged in a "massive, indiscriminate effort to 

subpoena everyone whose name was mentioned in any document," 

McCleskey has not presented any reason why counsel would have 

been unable to contact Ulysses Worthy back in 1981 when the first 

federal habeas petition was filled. Nor has he shown that a more 

extensive effort at that time to track down persons with 

information as to what transpired in the county jail during the 

summer of 1978 would not have turned up Worthy. 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 

claiming that the claim could net 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 patitioner's first 

petition for habeas corpus.” 

C. Ends of Justice 

Having found that McCleskey abused the writ by deliberately 

abandoning his Masslah claim, we must now decide whether the 

  

13 We also note that in 1981 there apparently still existed 

records listing each prisoner's cell assignment and any visitation 
of prisoners by outsiders. These records, which would hava 

corroborated or disproved Worthy's testimony, have since been 

dastroyed. 

19 

LER NES 151) ROBERT W.. CULLEN FAGE .@2 1  



. NOU-22-'89 WED 15:@1 ID:ROBERT W. CULLEN TEL NO:4@4 521-1329 #31 P22 ———— 

  

"gnde of justice” require consideration of his claim on the 

merits." Sea Sanders v. United States, 373 U.8. at 16-19%, 83 

5.Ct. at 1078-79. In Kuhlmann v. Wilson, the Supreme Court 

attempted to give greater content to the opan-snded "ends of 

justice” inquiry. Its statement, however, that "the ‘ends of 

justice’ require federal courts to entertain such petitions only 

where petitioner supplements his constitutional claim with a 

colorable showing of factual innocence" 477 U.S. at 454, 106 

§.Ct. at 2627, commanded only a plurality of the justices. Ses 

Megger v. Kemp, 831 F.2d 946, 958 n.19 (llth Cir. 1987) (en banc), 

cert, denied, __ U.8. __, 108 S.Ct. 1586, 99 L.Ed.2d 502 

(1588). Thus, the circumstancas under which ands of justice 

would require rehearing of an otherwise abusive petition remain 

unparticularized. 

We find it unnecessary to more narrowly define the 

circumstances in this case. For, the instances in which ends of 

justice would require a rehearing of a claim do not include those 

in which a violation of a constitutional right would be found to 

constitute harmless error.” The members of this panel disagree 

  

H The district court did not reach the %"enda of justice" 
inguiry ag it found that McClaskay's claim did not constitute abuse 
of the writ. 

1k 

gas Masser v. Kemp, 831 F.2d at 958-59: 

Because we conclude, as a matter of law, that the record 
in this case falls to disclose an AKe violation, our 
“ends of justice" analysis need not proceed any further. 

20 

MOL) 22 '39 16841] ROBERT WW. CULLEN FAGE . O22 

 



   
"NOU-22-'89 WED 15:81 ID:ROBERT W. CULLEN TEL HO: 484 521-1329 ga31 P23 

as to whether the district court was correct in finding that 

McCleskey had established a Massiah violation. Pretermitting 

that inquiry, however, the panel is unanimous that any violation 

that may have cccurred would constitute harmless error and that 

the district court erred in concluding otherwise. 

R- Harmless Error 

The remedy for a Massiagh violatien is not an automatic 

reversal of a conviction, but rather the exclusion of evidence 

tainted by the violation of petitioner's right to counsel. 

United States v. Morrison, 449% U.S. 361, 365, 101 &§.Ct. 665, 668, 

66 L.Ed.2d 564 (1981). The previous use of the tainted avidence 

will not rasult in a reversal of a conviction if it constituted 

"harmless error." Under the harmless error doctrine, the state 

must "prove beyond a reasonable doubt that the error complained 

of did not contribute to the verdict obtained." Chapman v. 

californim, 3686 U.S. 18, 24, 87 £.Ct. 824, 828, 17 L.Ed.2d 705 

(1967). See also Eatterwhite v. Texas, 486 U.S. 249, 108 8.Ct. 

1792, 1798, 100 L.Ed.2d 284 (1988) (harmless error analysis 

applied to sixth amendment violation tainting evidence in 

sentencing phase of capital trial); Brown Vv. Dugger, 831 F.2d 

1547, 1554 (11th Cir. 1987). 

In this case, the district court held that the arror 

  

That is, we need not address any other factors relevant 
to the "ends of justice" in light of our conclusion that 
no constitutional violation occurred. 

21 

NOU 22 '89 16:1 Md
 

FOBERT WW. CULLEH PAGE . B23 

 



« MOU-ZZ-'29 LED 15:82 II:ROBERT W. CULLEN TEL. HO:484 521-1929 H931 P24 I —— 

  

complained of could not be found harmless bacause Evans’ 

testimony concerning McCleskey's incriminating statements was 

critical to the State's case. In reaching this conclusion, tha 

court ignored the Eleventh Circuit's previous discussion in 

McClegkey, 753 F.2d at 884-885, of the importance of the avidence 

introduced through Evans' testimony at trial. Though that 

discussion occurred in the context of McClaskey's Giglio claim, 

it clearly has bearing on the import of Evans' testimony in the 

context of McCleskey's Massiah claim. It ig true, as petitioner 

argues, that the harmless error inguiry in the case of a Giglio 

claim differs from the inguiry in the case of a Masaiah 

violation, but this difference does not save McClaskey's claim. 

The crucial question in a Giglio claim is whether the 

state's failure to disclose its promise of reward to a witness 

affected the judgment of the jury as to the credibility of that 

witness. Sge Giglio, 405 U.S. at 154, 92 S.Ct. at 766. In its 

previous opinion, the Eleventh Circuit held that the judgment of 

the jury that convicted McClaskey was not affected by tha lack of 

disclesure. Its holding was based on two separate grounds. 

First, it found that "Evans credibility was exposad to 

substantial impeachment even without the detective's statement 

and the inconsistent description of his escape," as the jury had 

already baen made aware of Evans' extensive list of past 

convictions. 753 F.2d at 884. Sacond, and more important for our 

22 

HOW: 22.89 16:13 ROBERT. We. CULLEN FAGE . B24 

 



   

  

o Ji A=C0=- 00 LED 15:03 1PORERT WW. CULLEN TEL MHO:44d 521-1929 #3931 F25 

purposes, the Elaventh circuit found that, in light of all the 

other evidence presented to the jury, Evans' testimony could not 

"tin any reasonable likelihood have affected the judgment of the 

jury.'" Id. at 885 (quoting Napug v., Illinois, 360 U.8. 264, 

271, 79 §.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959)). This is 

precisely the finding that must be made in a harmless error 

analysis under Masgiah and upon reexamination, we find no reason 

te disturb this finding. 

Evans was called by the State on rebuttal to strengthen its 

proof that McCleskey was the triggerman at the holdup. Ha 

testified that McCleskey had admitted to him that he had shot the 

policeman and that McCleskey had admitted to wearing makeup to 

disguise himself during the robbery. He also stated that 

McClaeskey said he would have shot his way out even if there had 

been a dozan policemen. 

Turning first to Evans' testimony regarding McCleskay's 

admigeion that he was the triggerman, we feel that the state has 

met its burden of proving, beyond a reasonable doubt, that this 

testimony did not contribute to the verdict. First, as noted by 

the en banc court, McCleskey's codefendant, Ben Wright, also 

testified that McCleskey was the triggerman. Though Georgia law 

requires corroboration of an accomplice's testimony in felony 

cases, lt is clear that corroboration can be through 

circumstantial as well as direct evidence. Davis v. State, 178 

23 

88 16:13 ROBERT W. CULLEN PAGE . B25 

 



   
- - 

. . NOU-22-'89 WED 15:83 ID:ROBERT W. CULLEN TEL NO:4B84 521-1929 HIZL P26 oem emne 

of ~ 

Ga.App. 760, 344 S.E.2d 730, 732 (Ga.App. 1986) quoting Gunter v. 

‘State, 234 Ga. 651, 655, 256 S.E.2d 341 (Ga. 1979). 

The State presented a substantial amount of circumstantial 

evidence. McCleskey himself confessed to his participation in 

the robbery. The officer was killed by the man who entered and 

secured the front of the atorea while the other three men were in 

the back. McCleskey was identified by two of the store personnel 

ag the robber who came in the front door. The officer was killed 

by a bullet from a .38 caliber Rossi handgun. The State 

presentad evidence that McCleskey had stolen a .38 caliber Rossi 

in a previous holdup. The gun that McCleskey had stolen had a 

white handle. The State presented testimony from an eyewitness 

that the robber who ran out the front door after the robbary was 

carrying a pearl-handled pistel. This evidence not only 

corroborates Ben Wright's testimony, but is of sufficient 

quantity to allow this court to find that any additional 

testimony by Evans did not contribute to the verdict. 

Evans' testimony regarding McCleskey's statement that he was 

wearing makeup could also not have reasonably affected the jury's 

determination. The en banc court found that: 

Evans' testimony that McCleskey had made up his face 
corroborated the identification tastimony of one of the 
eyewitnesses, Nevertheless, this evidence was not 
crucial to the State's case. That McCleskey was 
wearing makeup helps establish he was the robber who 
entered the furniture store through tha front door. 
This fact had already been directly testified to by 
McCleskey's accomplice and two eyewitnesses as well as 

24 

MO 22 00 JE ld ROBERT W., CULLEN PAGE . B26 

 



   

  

. NOU-22-'839 WED 15:84 ID:ROBERT W. CULLEN TEL NO:4@4 521-1529 HIZ1 P27 [= 

corroborated by McCleskey's own confession. That 

Evans' testimony buttresses one of the eyewitnesses’ 

identifications is relatively unimportant. 

763 F.2d at 885. 

Finally, petitioner asserts that Evans' testimony as to 

McCleskey's statement that he would have been willing to shoot 

twelve policemen affected the jury's finding as to the presance 

of malice and increased its willingness to impose a sentence of 

death. Once again, wa find that the en banc court's analysis of 

this issue demonstrates that this testimony was not crucial to 

the jury's finding of malice murder. The court wrote that: 

In his closing argument, however, the prosecutor 
prasantaed to the jury three reasons supporting a 
conviction for malice murder. First, he argued that 
the physical evidence showed malicious intent because 
it indicated that McCleskey shot the police officer 
once in the head and a second time in the chest as he 
lay dying on the floor. Second, the prosacutor 
asserted that McCleskey had a choice, sithar to 
surrender or to kill the officer. That he chose to 
kill indicated malice. Third, the prosecutor contended 
that McClaskey's statement to Evans that he still would 

have shot his way out if there had been twalve police 
officers showed malice. This statement by McCleskey 
was not developed at length during Evana' testimony and 
was mentioned only in passing by the prosecutor in 
closing argument. 

Id. at 885. In addition, the court finds no reasonable 

likelihood that the jury's imposition of the death penalty was 

affected by Evans' testimony. The prosecutor did not introduce 

Evans as a witness at the sentencing phase of trial, nor did he 

use Evans' testimony to portray McCleskey as a hardened criminal 

deserving of death, but concentrated instead on McCleskey's prior 

25 

. "B39 16:14 ROBERT W. CULLEN FAGE.BET    



  NOL 

0y-22-'89 WED 15:84 1D:ROBERT WW. CULLEN TEL MO:4Bd 521-1929 #931 F28 

convictions." N 

Because evidence cther than Evans' testimony prasentad in 

the case presents such a clear indication of McCleskey's guilt, 

thie court finds beyond a reasonable doubt that the jury would 

have convicted and sentenced McCleskey as it did even without 

Evans' testimony. Our determination that any Massiah error would 

be harmless precludes a finding that the ends of justice would 

us to entertain McCleskey's claim on the merits. 

CONCLUSION 

The judgment of the district court granting the petition for 

writ of habeas corpus is revarsed and the petition is hereby 

denied ag an abuse of the writ. 

REVERSED. 

  

1] This case can easily be distinguished from Satterwhits 
Vv. Texag, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) , a 
cage that petitioner cites as controlling. In Satterwhite, a 
psychiatrist, who had interviewed the defendant in violation of his 
sixth amendment rights, testified in a separate sentencing 
proceeding that the defendant presented a threat to society through 
continuing acts of violence. In finding that the constitutional 
error was not harmless, the Court stressed that under Texas law, 
a jury may not sentence a defendant to death unless it finds that 
the defandant would commit acts of violence and would be a threat 
to society. Additionally, the Court found that the psychiatrist's 
testimony stood out "both because of his qualifications as a 
medical doctor specializing in psychiatry and because of the 
powerful content of his message.™ Id. at _ , 108 8.Ct. at 1799. 
In the instant case, the jury was not instructed as to future 
dangercusness, and the Eleventh Circuit found, in its previous 
discussion of the Giglio vieclation, that Evans' testimony had 
already been greatly impesachad by his own criminal background. 7853 
F.2d at 884. 

  

26 

ry 
i 

—— 

B89 ELS FOBERT ib, CULLEN FAGE . B28  



 



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW. 

Atlanta, Georgia 30303 
Miguel J. Cortez 8 November 22, 1989 Clerk 

Of Case And Names Of Parties 

  

[n Replying Give Number 

- 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: 

Nos. 88-8085 & 89-8085 - MCCLESKEY V. ZANT 

  

Enclosed is a copy of the court’s decision filed today in this appeal. Judgment has this 
day been entered pursuant to Rule 36 of the Federal Rules of Appellate Procedure. 
Fed.R.App.P. 39, 40 and 41, and the corresponding circuit rules govern costs, petitions 
for rehearing and mandate, respectively. 

To be timely, a petition for rehearing or a suggestion of in banc consideration must be 
received in the clerk’s office within twenty (20) days of the date of this opinion and 
judgment. No additional time for service by mail is permitted. See 11th Cir. R. 40-2. 

Pursuant to Davidson v. City of Avon Park. 848 F.2d 172 (11th Cir, 1988), if attorney’s 
fees on appeal are authorized by law they must be sought by filing a petition for 
attorney’s fees with this office within fourteen (14) days of the date of the cou::'s 
opinion. Any request for attorney’s fees received after that date must be accompanied 
by a motion to file out of time. 

  

In a direct criminal appeal, 11th Cir. R. 41-1 provides that issuance of the mandate shail 
not be stayed simply upon request: "Ordinarily the motion will be denied unless it shows 
that it is not frivolous, not filed merely for delay, and shows that a substantial question 
is to be presented to the Supreme Court or otherwise sets forth good cause for a stay." 

Counsel appointed under the Criminal Justice Act are reminded that 11th Cit R, 
Addendum Four (e)(4) provides: "In the event of affirmance or other action adverse to 
the party represented appointed counsel shall promptly advise the party in writing of the 
right to seek further review by the filing of a petition for writ of certiorari with the 
Supreme Court. Counsel shall file such petition if requested to do so by the party in 

  

writing." 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: Matt Davidson 
Encl. Deputy Clerk 

Mary Beth Westmoreland, Esq. OPIN-1 
Robert H. Stroup, Esq. 8/89 
John Charles Boger, Esq. 

 



  

PUBLISH 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085 & 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. 

  

(November 22, 1989) 

Before KRAVITCH and EDMONDSON, Circuit Judges, and RONEY, Senior 
Circuit Judge. 

KRAVITCH, Circuit Judge: 

This is a consolidated appeal by the State of Georgia from 

the district court's grant of Warren McCleskey's second petition 

for a writ of habeas corpus and from the district court's denial 

 



  

of the State's motion under Fed. R. Civ. P. 60(b) for relief from 

- the judgment. The district court granted the writ solely on the 

basis of McCleskey's claim that his sixth amendment rights had 

been violated under Massiah v. United States, 377 U.S. 201, 84 

S.Ct. 1199, 12 L.Ed.2d 246 (1964). Because we find that the 

district court abused its discretion in failing to dismiss 

McCleskey's Massiah allegation as an abuse of the writ, we 

reverse the district court without reaching the merits of 

McCleskey's Massiah claim or of the State's 60(b) motion. 

I. FACTS' 

McCleskey was arrested and charged with the murder of a 

police officer during an armed robbery of the Dixie Furniture 

Store. The store was robbed by four men. Three entered through 

the back door and one through the front. Each of the four men 

was armed. McCleskey had a .38 caliber Rossi white-handled, 

nickel-plated pistol, Ben Wright had a sawed-off shotgun, and the 

other two had blue steel pistols. The man who entered through 

the front secured the store, forcing the employees to lie on the 

floor. The others rounded up the employees in the rear and began 

to tie them up with tape. The manager was forced at gunpoint to 

  

1 
The statement of facts is taken from the Georgia Supreme 

Court's opinion on direct appeal, McCleskey v. The State, 245 Ga. 
108, 263 S.E.2d 146 (1980). 

 



  

turn over the store receipts, his watch, and six dollars. 

Responding to a silent alarm, a police officer entered the store 

by the front door. He proceeded approximately fifteen feet down 

the center aisle. Two shots were fired. One shot struck the 

police officer in the head causing his death. The other shot 

glanced off a pocket lighter in the officer's pocket and lodged 

in a sofa. That bullet was recovered. The robbers fled. 

Sometime later, McCleskey was arrested in connection with another 

armed robbery. 

McCleskey was identified by two of the store personnel as 

the robber who came in the front door. Shortly after his arrest, 

McCleskey confessed to Gaveicibaiing in the robbery, but 

maintained that he was not the triggerman. One of his 

accomplices, Ben Wright, testified that McCleskey admitted to 

shooting the officer. Offie Evans, a jail inmate housed near 

McCleskey testified that McCleskey made a "jail house confession" 

in which he claimed he was the triggerman. The police officer 

was killed by a bullet fired from a .38 caliber Rossi handgun. 

Though the weapon was not recovered, McCleskey had stolen a .38 

caliber Rossi in a holdup of a Red Dot grocery store two AONLNE 

earlier. 

II. PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder and two counts of 

armed robbery. It sentenced McCleskey to death for the murder of 

 



  

the police officer and to consecutive life sentences for the two 

.robbery counts. In 1980, these convictions and sentences were 

affirmed by the Georgia Supreme Court, McCleskey v. State, 245 

Ga. 108, 263 S.E.2d 146, cert. denied, 449 U.S. 891, 101 S.Ct. 

253, 66 L.Ed.2d 119 (1980). In January of 1981, McCleskey 

petitioned for habeas corpus relief in the Superior Court of 

Butts County, asserting over twenty challenges to his conviction 

and sentence. In an amendment to his petition, McCleskey alleged 

a Massiah violation, claiming that the introduction into evidence 

of statements he made to an informer violated his rights under 

the sixth amendment. See Massiah v. United States, 377 U.S. 201, 

84 S.Ct. 1199. The petition was denied after an evidentiary 

hearing and the Georgia Supreme Court denied McCleskey's 

application for a certificate of probable cause to appeal. The 

United States Supreme Court denied McCleskey's petition for 

certiorari. McCleskey v. Zant, 454 U.S. 1093, 102 S.Ct. 659, 70 

L.Ed.2d 631 (1981). 

McCleskey filed his first federal habeas petition in 

district court in December of 1981, asserting eighteen grounds 

for granting the writ. That petition did not include a claim 

under Massjah. It did, however, include a claim under Giglio v. 

United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), 

alleging that the state prosecutor had failed to reveal that 

Offie Evans, one of its witnesses, had been promised favorable 

 



  

treatment as a reward for his testimony. In 1984, the district 

court granted habeas corpus relief as to McCleskey's Giglio 

claim. It ordered that his conviction and sentence for malice 

murder be set aside, but affirmed his convictions and sentences 

for armed robbery. McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga. 
  

1984). 

Both parties appealed and in 1985, the Eleventh Circuit, 

sitting en banc, reversed the district court's grant of the writ 

on the Giglio claim and affirmed on all claims denied by the 

district court. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 

1985) (en banc). McCleskey then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. The Supreme 

Court granted certiorari limited to consideration of the 

application of the Georgia death penalty and affirmed the 

Eleventh Circuit. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 

1756, 95 L.Ed.2d 262, petition for rehearing denied, 482 U.S. 

920, 107 S.Ct. 3199, 96 L.Ed.2d 686 (1987). 

McCleskey filed a subsequent petition for a writ of habeas 

corpus in state court in June of 1987. In an amendment to that 

petition, McCleskey once again raised a Massiah claim, alleging 

that newly discovered evidence demonstrated that a jail inmate of 

McCleskey's was acting on behalf of the State as an informant. 

The state court granted the State's motion to dismiss and the 

Georgia Supreme Court denied McCleskey's application for a 

 



  

certificate of probable cause. 

McCleskey filed the present petition for a writ of habeas 

corpus in federal district court in July of 1987. After 

evidentiary hearings on the petition in July and August of 1987, 

the district court entered an order granting habeas corpus relief 

only as to McCleskey's murder conviction and sentence based upon 

the finding of a Massiah violation. McCleskey v. Kemp, No. C87- 

1517A (N.D. Ga. Dec. 23, 1987). 

The State now appeals the district court's grant of the 

writ, claiming that the district court abused its discretion in 

failing to dismiss McCleskey's Massiah allegation as an abuse of 

the writ and that the district court erred in finding a violation 

of Massiah.’ 

III. ABUSE OF THE WRIT 

A. Background 

Under the doctrine of "abuse of the writ," a federal 

court may decline to entertain a second or subsequent habeas 

corpus petition that raises a claim that the petitioner did not 

  

2 This court stayed the briefing schedule of the appeal 
pending the State's filing in district court of a motion under 
Fed.R.Civ.P. 60(b) for relief from the judgment based on the 
availability of witness Offie Evans. The district court denied the 
motion and this court granted the State's motion to consolidate the 
State's original appeal and its appeal from the denial of the 
motion for relief from the judgment. 

 



  

raise in a prior petition. The doctrine is grounded in the 

court's equitable power to decline to entertain a habeas corpus 

petition properly within its jurisdiction when "a suitor's 

conduct in relation to the matter at hand . . . disentitle[s] him 

to the relief he seeks." Sanders v. United States, 373 U.S. 1, 

17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (quoting Fay Vv. 

Noia, 372 U.S. 391, 438, 83 S.Ct 822, 849, 9 L.Ed.2d4 837 (1963)). 

The statutory basis for the doctrine of abuse of the writ in 

cases of successive petitions for habeas corpus can be found at 

28 U.S.C. § 2244(b)’ and Rule 9(b) of the Rules Governing Section 

2254 Cases in the United States District Courts‘. These 

  

: 28 U.S.C. § 2244 (b) states as follows: 

When after an evidentiary hearing on the merits of a 
material factual issue, or after a hearing on the merits 
of an issue of law, a person in custody pursuant to the 
judgment of a State court has been denied by a court of 
the United States or a justice or judge of the United 
States release from custody or other remedy on an 
application for a writ of habeas corpus, a subsequent 
application for a writ of habeas corpus in behalf of such 
person need not be entertained by a court of the United 
States or a justice or judge of the United States unless 
the application alleges and is predicated on a factual 
or other ground not adjudicated on the hearing of the 
earlier application for the writ, and unless the court, 
justice, or judge is satisfied that the applicant has not 
on the earlier application deliberately withheld the 
newly asserted ground or otherwise abused the writ. 

4 
Rule 9(b) provides as follows: 

Successive Petitions. A second or successive petition may 
be dismissed if the judge finds that it fails to allege 
new or different grounds for relief and the prior 
determination was on the merits or, if new and different 

7 

 



  

provisions Addtess the problem of prisoners filing the same 

claims in successive petitions as well as the problem of 

prisoners who abuse the writ by filing their claims piecemeal. A 

"successive petition" is one that raises a claim already 

adjudicated through a prior petition, while a petition that 

raises grounds for relief not raised in the prior petition is 

analyzed as an "abuse of the writ." See Gunn v. Newsome, 881 

F.2d 949, 955 n.6 (11th Cir. 1989) (en banc) (plurality opinion), 

petition for cert. filed, No. 89-611, 1989 WL 129621 (Oct. 16, 

1989). 

A federal court's decision to exercise its equitable power 

to dismiss a petition is baged on different considerations in the 

two types of cases. In cases of successive petitions, equity 

usually will not permit a petitioner to reassert a claim resolved 

against him "in the hope of getting before a different judge in 

multijudge courts." See Sec. 2254 Cases R. 9 advisory 

committee's note. In cases of abuse of the writ, equity counsels 

against allowing "needless piecemeal litigation" or "collateral 

proceedings whose only purpose is to vex, harass, or delay." 

Sanders, 373 U.S. at 18, 83 S.Ct. at 1078. In both instances, 

the need for finality in criminal law counsels strongly against 

courts repeatedly reviewing criminal convictions. See Kuhlmann 

  

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. 

8 

 



  

v. Wilson, 477 U.S. 436, 452-53, 106 S.Ct. 2616, 2626-27 (1986) 

"(plurality opinion). 

The state has the burden of pleading that the habeas 

petitioner has abused the writ. Price v. Johnston, 334 U.S. 266, 

291-92, 68 S.Ct. 1049, 1063, 92 L.Ed.2d 1356 (1948). This 

circuit has held that "[t]he state carries its burden by 

recounting the petitioner's writ history, identifying the claims 

not raised before the instant petition and alleging that the 

petitioner abused the writ in violation of 28 U.S.C. § 2254, Rule 

9(b)." Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 

1985), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 

(1985). The State has clearly met its burden here, as it is 

evident that McCleskey did not assert his Massiah claim in his 

first federal habeas petition. 

McCleskey's previous failure to assert the claim does not, 

however, require the federal court to dismiss his petition, for 

the courts have recognized "not all piecemeal litigation is 

needless." Booker v. Wainwright, id.; see also Haley v. Estelle, 

632 F.2d 1273, 1276 (5th Cir. 1980).° Once the state has alleged 

abuse of the writ, the petitioner must be afforded the 

opportunity to justify his previous failure to raise the claim. 

  

: In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 
Cir. 1981) (en banc), this court adopted as binding precedent all 
decisions of the former Fifth Circuit handed down before October 
1, 1981. 

 



  

In deciding whether a petitioner has presented sufficient 

justification, courts have required the petitioner to show that 

he did not deliberately abandon the claim and that his failure to 

raise it was not due to inexcusable neglect. See Woodard v. 

Hutchins, 464 U.S. 377, 379, 104 S.Ct. 752, 753 (1984) (per 

curiam) (Powell, J., concurring, joined by four other justices); 

Demps v. Dugger, 874 F.2d 1385, 1391 (11th Cir. 1989), petition 

for cert. filed, No. 89-5277, 1989 WL 113448 (Aug. 4, 1989); Witt 

Vv. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 454 

U.S. 877, 102 S.Ct. 357 (1981): Potts v. Zant, 638 F.2d 727, 740- 

41 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 877, 102 S.Ct 

357 (1981).° If a court deternines that the petitioner has 

failed to carry his burden of disproving an abuse of the writ, it 

may dismiss the petition unless the ends of justice demand that 

the court reach the merits. Sanders, 373 U.S. at 16-19, 83 S.Ct. 

at 1078-79; Demps v. Dugger, 874 F.2d at 1391; Davis v. Kemp, 829 

F.2d 1522, 1526 (11th Cir. 1987), cert. denied, 108 S.Ct. 1099, 

99 L.Ed.2d 262 (1988). 

Whether a second or subsequent petition is to be dismissed 

on abuse of the writ grounds is left to the sound discretion of 

the district court. Sanders, 373 U.S. at 18, 83 S.Ct. at 1079; 

  

i In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th 
Cir. 1982), this court adopted as binding precedent all decisions 
of Unit B of the former Fifth Circuit handed down after September 
30, 1981). 

10 

 



  

Darden Vv. Dugger, 825 F.24 287, 294 (11th Cir. 1987), cert. 

denied, 108 S.Ct. 1125, 99 L.Ed.2d 235 (1988); Potts v. Zant, 638 

F.2d at 741. Yet discretion in such matters is not unfettered, 

and its sound exercise will rarely permit a district court to 

hear a petition that clearly constitutes an abuse of the writ. 

See Gunn Vv. Newsome, 881 F.2d at 949. 

In the instant appeal, the district court found that 

McCleskey could not be said to have intentionally abandoned his 

claim. We disagree and find that the district court abused its 

discretion in failing to dismiss a clearly abusive petition. 

B. Deliberate Abandonment of the Massiah Claim 

McCleskey asserts that his failure to raise a Massiah claim 

in his earlier federal petition is justified because at the time 

he filed that petition, he lacked the evidence to support such a 

claim. To demonstrate a violation of sixth amendment rights 

under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, a 

defendant must show that the prosecution deliberately elicited 

incriminating statements from him in the absence of his lawyer. 

Massiah itself involved statements made by a defendant free on 

bail to a co-indictee in a car that had been wired by the 

government. In United States v. Henry, 447 U.S. 264, 100 S.Ct. 

2183, 65 L.Ed.2d 115 (1980), the Supreme Court applied Massiah to 

a situation in which incriminatory statements were made to a 

11 

 



  

cellmate who was a government informant. In Kuhlmann v. Wilson, 

the Supreme Court stressed that a defendant alleging a Massiah 

violation "must demonstrate that the police and their informant 

took some action, beyond merely listening, that was designed 

deliberately to elicit incriminating remarks." 477 U.S. at 459, 

106 S.Ct. at 2630.’ 

McCleskey bases his Massiah claim on two pieces of evidence. 

The first is a 21-page written statement of Offie Evans, a 

prisoner who was incarcerated in the cell next to McCleskey's 

when McCleskey was in the Fulton County Jail awaiting trial. 

Evans testified against McCleskey at trial, relating several 

incriminating statements made by McCleskey. The written 

statement, which had been given to the Atlanta Police Department 

in August of 1978, sets out these conversations in great detail, 

demonstrating that Evans lied to McCleskey in order to get 

information from him.® McCleskey argues that the written 

statement shows evidence of an ab initio relationship between 

  

? In Lightbourne v. Dugger, 829 F.2d 1012, cert. denied, 
U.S. » 109 S.Ct. 329, 102 L.Ed.2d 346 (1988) (11th Cir. 

1987), this circuit characterized petitioner's burden in a 
Massiah/Henry claim as one involving two elements: "In order to 
establish a violation of the Sixth Amendment in a jailhouse 
informant case, the accused must show (1) that a fellow inmate was 
a government agent; and (2) that the inmate deliberately elicited 
incriminating statements from the accused." Id. at 1020. 

: For instance, Evans told McCleskey that his name was 
Charles, that he was the uncle of codefendant Ben Wright, and that 
he was supposed to be a participant in the robbery himself. 

12 

 



  

Evans and the prosecution and is thus highly relevant to his 

Massiah claim. 

The second piece of evidence McCleskey uses to support his 

Massiah claim is the testimony of Ulysses Worthy who was captain 

of the day watch at the Fulton County Jail during the summer of 

1978. Worthy testified at two separate points during the 

district court hearings on McCleskey's second habeas petition. 

Though Worthy's testimony was at times confused and 

contradictory, the district court credited Worthy's assertion 

that at some point some officer involved with the case had asked 

that Evans be moved to a different cell. The district court 

judge relied heavily on Worthy's testimony in holding that 

McCleskey had presented a valid Massiah claim. In fact, he found 

that "[t]he lack of corroboration by other witnesses is not 

surprising; the other witnesses, like Assistant District Attorney 

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

Detective Dorsey, had an obvious interest in concealing any such 

arrangement. Worthy, by contrast, had no apparent interest or 

bias that would explain any conscious deception." McCleskey, No. 

C87-1517A, slip op. at 22. 

McCleskey maintains that he was unaware of both pieces of 

evidence critical to his Massiah claim until well after he filed 

his first federal habeas petition. It is uncontested that he did 

not obtain Evans' statement until July of 1987 and that he did 

13 

 



  

not know about the existence of Worthy until the time of the 

‘hearing on the second federal habeas petition. The State 

strongly contends that habeas counsel realized or should have 

realized that Evans had made a written statement concerning his 

conversations with McCleskey and asserts that petitioner's 

counsel should have made some effort to obtain that statement. 

The district court found, however, that McCleskey was not in fact 

aware of the written statement, and we cannot say that this 

determination is clearly erroneous. 

Assuming that McCleskey was unaware of both pieces of 

evidence, the question before us is 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. The district court 

found that it was sufficient, holding that McCleskey's 

unawareness precluded a finding of deliberate abandonment of the 

claim, despite the fact that McCleskey had raised it in his first 

state habeas petition. We disagree. 

In finding that McCleskey did not deliberately abandon his 

Massiah claim, the district court stated that: 

First petitioner cannot be said to have 
intentionally abandoned this claim. Although 
petitioner did raise a Massiah claim in his first state 
petition, that claim was dropped because it was obvious 
that it could not succeed given the then-known facts. 
At the time of his first federal petition, petitioner 
was unaware of Evans' written statement, which, as 
noted above, contains strong indications of an ab 

14 

 



  

initio relationship between Evans and the authorities. 

Abandoning a claim whose supporting facts only later 

become evident is not an abandonment that "for 

strategic, tactical, or any other reasons . . . can be 

described as the deliberate by-passing of state 

procedures." . . . Petitioner's Massiah claim is 

therefore not an abuse of the writ on which no evidence 

should have been taken. This is not a case where 

petitioner has reserved his proof or deliberately 

withheld his claim for a second petition. . . . Nor is 

the petitioner now raising an issue identical to one he 

earlier considered without merit. 

McCleskey, No. C87-1517A, slip op. at 24 (citations omitted). 

This holding by the district court misconstrues the meaning 

of deliberate abandonment. McCleskey included a Massiah claim in 

his first state petition, dropped it in his first federal 

petition, and now asserts it again in his second federal 

petition.’ Given that McCleskey had asserted the Massiah claim 

in his first state habeas petition, it is clear that the issue 

was not unknown to him at the time of his first federal petition. 

Further, we must assume that at the time McCleskey filed his 

first state habeas petition, counsel had determined that there 

was some factual basis for a Massiah claim. Indeed, such a 

determination is not surprising. Not only was counsel aware that 

  

In an amendment to his first state petition, McCleskey 

alleged that: 

The introduction into evidence of petitioner's statements 

to an informer, elicited in a situation created to induce 

the petitioner to make incriminating statements without 

assistance of counsel, violated the petitioner's right 

to counsel under the Sixth Amendment to the Constitution 

of the United States and Section 2-111 of the 1976 
Constitution of the State of Georgia. 

15 

 



  

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.” The petitioner and his counsel did not accidentally 

fail to include the Massiah claim in the federal petition, but 

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

it previously. This constitutes prima facie evidence of 

deliberate abandonment. In Darden v. Dugger, we stated that: 

The record shows that the issue presented in this third 
petition was specifically withdrawn from the district 
court's consideration as being not well founded. The 
issue was abandoned. Intentional abandonment of a 
claim is precisely the context that application of the 
concept of abuse of the writ is intended to address. 
Witt, 755 F.2d at 1397. Petitioner may be deemed to 
have waived his right to a hearing on a successive 
application for federal habeas relief when he 
deliberately abandons one of his grounds at the first 
hearing. 

825 F.2d at 294. 

When asked at the second federal habeas hearing why he did 

not pursue the Massjah claim in his first federal petition, 

counsel responded that his efforts to find evidence in support of 

  

10 

Evans testified at trial as to certain statements that 
McCleskey had made in prison. 

" In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 
L.Ed.2d 104 (1972), the Supreme Court held that the state violates 
due process when it obtains a conviction on the basis of a 
witness's testimony when the witness has failed to disclose a 
promise of favorable treatment from the prosecution. McCleskey 
included a Giglio claim in his first state and first federal habeas 
petitions. 

16 

 



  

the claim had failed. It appears, however, that these efforts 

‘were somewhat lacking. Counsel testified that he informally 

attempted to contact jailers at the Fulton County Jail, but that 

they could provide him with no information.” He also noted that 

at a deposition taken for the first state habeas hearing, Russell 

Parker, the District Attorney prosecuting the case, claimed that 

he was unaware of any instance in which Evans had worked for the 

Atlanta Police Department prior to his overhearing conversations 

at the Fulton County Jail. Counsel testified that he did not 

carry the Massiah claim over into the federal habeas petition 

because he "looked at what we had been able to develop in support 

of the claim factually in the state habeas proceeding and made 

the judgment that we didn't have the facts to support the claim 

  

12 
At his second federal habeas hearing, the lawyer who 

represented McCleskey at the first federal habeas hearing testified 

that he "spoke with a couple of Atlanta Bureau of Police Services 

officers" in order to find out how to develop factual evidence in 

support of a claim. Pursuant to their suggestion, counsel spoke 

with two or three persons who were deputies at the Fulton County 

Jail. He testified that "none of them had any information. 

Basically they had no recollection of the circumstances regarding 

how Evans came to be assigned to the jail cell that he was assigned 

to or of any conversations with the Atlanta Bureau of Police 

Services Detectives regarding Offie Evans' assignment to that jail 

cell." 

Counsel apparently made no attempt to contact persons who 

clearly had contact with Evans and McCleskey at the Fulton County 

Jail. He testified that he did not speak to Detective Dorsey 

(mentioned by Evans in his testimony at the first state habeas 

hearing), to Detectives Jowers or Harris (officers who had 

investigated the McCleskey case), or Deputy Hamilton (who testified 
at trial regarding his contact with Mr. Evans). 

17 

 



  

and, therefore, did not bring it into federal court." 

Abandoning a claim after initial investigatory efforts prove 

unsuccessful cannot insulate a petitioner from abuse of the writ. 

See Witt v. Wainwright, 755 F.2d at 1397 (insufficient to allege 

that evidence was not available if it was within petitioner's 

power to elicit such evidence at time of earlier petition); 

Woodard v. Hutchins, 464 U.S. 377, 379 & n.3, 104 S.Ct. 752, 753 

& n.3 (1984) (per curiam) (Powell, J., concurring, joined by four 

other justices) (petitioner found to have abused the writ when he 

is unable to explain why examination providing evidence of 

insanity was not conducted earlier); Antone v. Dugger, 465 U.S. 

200, 205 & n.3, 206, 104 S.Ct. 962, 964 & n.3, 965, 79 L.Ed.2d 

147 (1984) (per curiam) (haste with which first habeas petition 

prepared does not require courts to consider claims withheld from 

that petition if substance could have been presented in first 

petition). 

McCleskey places great emphasis on the fact that the state 

allegedly withheld Evans' 21-page statement from both trial and 

habeas counsel. The statement was ultimately obtained in June of 

1987 through a request pursuant to the Georgia Open Records Act, 

0.C.G.A. § 50-18-72(a). It is clear, however, that the statement 

itself does not demonstrate the existence of a Massiah violation. 

At most, it was simply the catalyst that caused counsel to pursue 

the Massiah claim more vigorously. The key piece of evidence 

18 

 



  

supporting McCleskey's Massiah claim was the testimony of Worthy, 

who testified for the first time at the second federal habeas 

hearing in July of 1987. Counsel claims that he did not discover 

Worthy until he engaged in a "massive, indiscriminate effort to 

subpoena everyone whose name was mentioned in any document." 

McCleskey has not presented any reason why counsel would have 

been unable to contact Ulysses Worthy back tn 1981 when the first 

federal habeas petition was filed. Nor has he shown that a more 

extensive effort at that time to track down persons with 

information as to what transpired in the county jail during the 

summer of 1978 would not have turned up Worthy. A petitioner and 

his counsel may not circumvent the abuse of the writ doctrine by 

failing to follow through with an investigation and then later 

claiming that the claim could not have succeeded earlier on the 

facts as then known. It will only be possible to avoid piecemeal 

litigation if counsel is required to make a thorough 

investigation of the facts at the time of petitioner's first 

petition for habeas corpus.” 

C. Ends of Justice 

Having found that McCleskey abused the writ by deliberately 

abandoning his Massiah claim, we must now decide whether the 

  

13 We also note that in 1981 there apparently still existed 
records listing each prisoner's cell assignment and any visitation 
of prisoners by outsiders. These records, which would have 
corroborated or disproved Worthy's testimony, have since been 
destroyed. 

19 

 



  

"ends of justice" require consideration of his claim on the 

merits." See Sanders v. United States, 373 U.S. at 16-19, 83 

S.Ct. at 1078-79. In Kuhlmann v. Wilson, the Supreme Court 

attempted to give greater content to the open-ended "ends of 

justice" inquiry. Its statement, however, that "the 'ends of 

justice' require federal courts to entertain such petitions only 

where petitioner supplements his constitutional claim with a 

colorable showing of factual innocence" 477 U.S. at 454, 106 

S.Ct. at 2627, commanded only a plurality of the justices. See 

Messer v. Kemp, 831 F.2d 946, 958 n.19 (11th Cir. 1987) (en banc), 

cert. denied, ____ U.S. —— + 108 S.Ct. 1586, 99 L.Ed.2d4 902 

(1988). Thus, the circumstances under which ends of justice 

would require rehearing of an otherwise abusive petition remain 

unparticularized. 

We find it unnecessary to more narrowly define the 

circumstances in this case. For, the instances in which ends of 

justice would require a rehearing of a claim do not include those 

in which a violation of a constitutional right would be found to 

constitute harmless error.” The members of this panel disagree 

  

i The district court did not reach the "ends of justice" 
inquiry as it found that McCleskey's claim did not constitute abuse 
of the writ. 

15 

See Messer v. Kemp, 831 F.2d at 958-59: 

Because we conclude, as a matter of law, that the record 
in this case fails to disclose an Ake violation, our 
"ends of justice" analysis need not proceed any further. 

20 

 



as to whether the district court was correct in finding that 

McCleskey had established a Massiah violation. Pretermitting 

that inquiry, however, the panel is unanimous that any violation 

that may have occurred would constitute harmless error and that 

the district court erred in concluding otherwise. 

D. Harmless Error 

The remedy for a Massiah violation is not an automatic 

reversal of a conviction, but rather the exclusion of evidence 

tainted by the violation of petitioner's right to counsel. 

United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 

66 L.Ed.2d 564 (1981). The previous use of the tainted evidence 

will not result in a reversal of a conviction if it constituted 

"harmless error." Under the harmless error doctrine, the state 

must "prove beyond a reasonable doubt that the error complained 

of did not contribute to the verdict obtained." Chapman Vv. 

california, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 

(1967). See also Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 

1792, 1798, 100 L.Ed.2d 284 (1988) (harmless error analysis 

applied to sixth amendment violation tainting evidence in 

sentencing phase of capital trial); Brown v. Dugger, 831 F.2d 

1547, 1554 (11th Cir. 1987). 

In this case, the district court held that the error 

  

That is, we need not address any other factors relevant 
to the "ends of justice" in light of our conclusion that 
no constitutional violation occurred. 

21  



  

complained of could not be found harmless because Evans’ 

‘testimony concerning McCleskey's incriminating statements was 

critical to the State's case. In reaching this conclusion, the 

court ignored the Eleventh Circuit's previous discussion in 

McCleskey, 753 F.2d at 884-885, of the importance of the evidence 

introduced through Evans' testimony at trial. Though that 

discussion occurred in the context of McCleskey's Giglio claim, 

it clearly has bearing on the import of Evans' testimony in the 

context of McCleskey's Massiah claim. It is true, as petitioner 

argues, that the harmless error inquiry in the case of a Giglio 

claim differs from the inquiry in the case of a Massiah 

violation, but this difference does not save McCleskey's claim. 

The crucial question in a Giglio claim is whether the 

state's failure to disclose its promise of reward to a witness 

affected the judgment of the jury as to the credibility of that 

witness. See Giglio, 405 U.S. at 154, 92 S.Ct. at 766. In its 

previous opinion, the Eleventh Circuit held that the judgment of 

the jury that convicted McCleskey was not affected by the lack of 

disclosure. Its holding was based on two separate grounds. 

First, it found that "Evans credibility was exposed to 

substantial impeachment even without the detective's statement 

and the inconsistent description of his escape," as the jury had 

already been made aware of Evans' extensive list of past 

convictions. 753 F.2d at 884. Second, and more important for our 

22 

 



  

purposes, the Eleventh Circuit found that, in light of all the 

other evidence presented to the jury, Evans' testimony could not 

"'in any reasonable likelihood have affected the judgment of the 

jury.'" Id. at 885 (quoting Napue v. Illinois, 360 U.S. 264, 

271, 719:8.Ct. 1173, 1178, 3 L.Pd.24 1217 (1959)). This is 

precisely the finding that must be made in a harmless error 

analysis under Massiah and upon reexamination, we find no reason 

to disturb this finding. 

Evans was called by the State on rebuttal to strengthen its 

proof that McCleskey was the triggerman at the holdup. He 

testified that McCleskey had admitted to him that he had shot the 

policeman and that McCleskey had admitted to wearing makeup to 

disguise himself during the robbery. He also stated that 

McCleskey said he would have shot his way out even if there had 

been a dozen policemen. 

Turning first to Evans' testimony regarding McCleskey's 

admission that he was the triggerman, we feel that the state has 

met its burden of proving, beyond a reasonable doubt, that this 

testimony did not contribute to the verdict. First, as noted by 

the en banc court, McCleskey's codefendant, Ben Wright, also 

testified that McCleskey was the triggerman. Though Georgia law 

requires corroboration of an accomplice's testimony in felony 

cases, it is clear that corroboration can be through 

circumstantial as well as direct evidence. Davis v. State, 178 
  

23 

 



  

Ga.App. 760, 344 S.E.2d4d 730, 732 (Ga.App. 1986) quoting Gunter v. 

State, 234 Ga. 651, 655, 256 S.E.2d 341 (Ga. 1979). 
  

The State presented a substantial amount of circumstantial 

evidence. McCleskey himself confessed to his participation in 

the robbery. The officer was killed by the man who entered and 

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

the back. McCleskey was identified by two of the store personnel 

as the robber who came in the front door. The officer was killed 

by a bullet from a .38 caliber Rossi handgun. The State 

presented evidence that McCleskey had stolen a .38 caliber Rossi 

in a previous holdup. The gun that McCleskey had stolen had a 

white handle. The State pregented testimony from an eyewitness 

that the robber who ran out the front door after the robbery was 

carrying a pearl-handled pistol. This evidence not only 

corroborates Ben Wright's testimony, but is of sufficient 

quantity to allow this court to find that any additional 

testimony by Evans did not contribute to the verdict. 

Evans' testimony regarding McCleskey's statement that he was 

wearing makeup could also not have reasonably affected the jury's 

determination. The en banc court found that: 

Evans' testimony that McCleskey had made up his face 
corroborated the identification testimony of one of the 
eyewitnesses. Nevertheless, this evidence was not 
crucial to the State's case. That McCleskey was 
wearing makeup helps establish he was the robber who 
entered the furniture store through the front door. 
This fact had already been directly testified to by 
McCleskey's accomplice and two eyewitnesses as well as 

24 

 



  

corroborated by McCleskey's own confession. That 
Evans' testimony buttresses one of the eyewitnesses’ 
identifications is relatively unimportant. 

753 F.24 at 885, 

Finally, petitioner asserts that Evans' testimony as to 

McCleskey's statement that he would have been willing to shoot 

twelve policemen affected the jury's finding as to the presence 

of malice and increased its willingness to impose a sentence of 

death. Once again, we find that the en banc court's analysis of 

this issue demonstrates that this testimony was not crucial to 

the jury's finding of malice murder. The court wrote that: 

In his closing argument, however, the prosecutor 
presented to the jury three reasons supporting a 
conviction for malice murder. First, he argued that 
the physical evidence showed malicious intent because 
it indicated that McCleskey shot the police officer 
once in the head and a second time in the chest as he 
lay dying on the floor. Second, the prosecutor 
asserted that McCleskey had a choice, either to 
surrender or to kill the officer. That he chose to 
kill indicated malice. Third, the prosecutor contended 
that McCleskey's statement to Evans that he still would 
have shot his way out if there had been twelve police 
officers showed malice. This statement by McCleskey 
was not developed at length during Evans' testimony and 
was mentioned only in passing by the prosecutor in 
closing argument. ) 

Id. at 885. In addition, the court finds no reasonable 

likelihood that the jury's imposition of the death penalty was 

affected by Evans' testimony. The prosecutor did not introduce 

Evans as a witness at the sentencing phase of trial, nor did he 

use Evans' testimony to portray McCleskey as a hardened criminal 

deserving of death, but concentrated instead on McCleskey's prior 

25 

 



  

convictions." 

Because evidence other than Evans' testimony presented in 

the case presents such a clear indication of McCleskey's quilt, 

this court finds beyond a reasonable doubt that the jury would 

have convicted and sentenced McCleskey as it did even without 

Evans' testimony. Our determination that any Massiah error would 

be harmless precludes a finding that the ends of justice would 

require us to entertain McCleskey's claim on the merits. 

CONCLUSION 

The judgment of the district court granting the petition for 

writ of habeas corpus is reversed and the petition is hereby 

denied as an abuse of the writ. 

REVERSED. 

  

16 
This case can easily be distinguished from Satterwhite 

v. Texas, 486 U.S. 249, 108 s.Cct. 1792, 100 L.Ed.2d 284 (1988), a 
case that petitioner cites as controlling. In Satterwhite, a 
psychiatrist, who had interviewed the defendant in violation of his 
sixth amendment rights, testified in a separate sentencing 
proceeding that the defendant presented a threat to society through 
continuing acts of violence. In finding that the constitutional 
error was not harmless, the Court stressed that under Texas law, 
a jury may not sentence a defendant to death unless it finds that 
the defendant would commit acts of violence and would be a threat 
to society. Additionally, the Court found that the psychiatrist's 
testimony stood out "both because of his qualifications as a 
medical doctor specializing in psychiatry and because of the 
powerful content of his message." Id. at _ 4,108 S.Ct, at 1799. 
In the instant case, the jury was not instructed as to future 
dangerousness, and the Eleventh Circuit found, in its previous 
discussion of the Giglio violation, that Evans' testimony had 
already been greatly impeached by his own criminal background. 753 
F.2d at 884. 

26 

 



  

PUBLISH 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

Nos, 88-8085 & 89-8085 

  

WARREN MCCLESKEY, 

Patitioner=-Appelles, 

varsus 

WALTER ZANT, Superintendent, 
Georgia Diagnostic and Classification Centar, 

Respondent-Appallant. 

  

Appeals from the United States District Court 
for the Northern District of Georgia. 
  

(November 22, 1989) 

Before KRAVITCH and EDMONDSON, Circuit Judges, and RONEY, Senior 
Circuit Judge, 

KRAVITCH, Circuit Judge: 

This is a consolidated appeal by the State of Georgia from 

the district court's grant of warren McCleskey's second petition 

for a writ of habeas corpus and from the district court's denial 

 



  

of the Stata's motion under Fed. R. Civ. P., 60(b) for ralief from 

the judgment. The district court granted the writ solely on the 

| basis of McCleskay's claim that his sixth amendment rights had 

been violated under Massiah v. United States, 377 U.S. 201, 84 

S.Ct. 1199, 12 L.Ed&.24 246 (1564). Because we find that the 

district court abused its discretion in failing to dismiss 

McCleskey's Maggsiah allegation as an abuse of the writ, we 

reverse the district court without reaching the merits of 

McCleskey's Massiah claim or of the Stata's 60(b) motion. 

I. FACTS' 

McCleskey was arrested and charged with the murder of a 

police officer during an armed robbery of the Dixie Furniture 

Store. The store was robbad by four men. Three entered through 

the back door and one through the front. Each of the four men 

was armed. McClaeskey had a .38 caliber Rossi white-handled, 

nickel-plated pistol, Ben Wright had a sawed-off shotgun, and the 

other two had blues steel pistols. The man who entared through 

the front secured the stores, forcing the employees to lie on the 

floor. The others rounded up the employees in tha rear and began 

to tie them up with tape. The manager was forced at gunpoint to 

  

1 
Tha statement of facts is taken from the Georgia Supreme 

Court's opinion on direct appeal, McCleaskav v. The State, 245 Ga. 
108, 263 S.E.2d 146 (1980). 

 



  

turn over the store receipts, his watch, and six dollars. 

Responding to a silent alarm, a police officer entered the store 

by the front door. He proceeded approximately fifteen feat down 

tha center aisle. Two shots were fired. One shot struck the 

police officer in the head canaing his death. The other shot 

glanced off a pocket lighter in the officer's pocket and lodged 

in a sofa. That bullet was recoverad. The robbers fled. 

Sometime later, McCleskey was arrested in connection with another 

armed robbary. 

McClaeskey was identified by two of the store personnel as 

the robber who came in the front door. Shortly after his arrest, 

McClaskey confessed to participating in the robbery, but 

maintained that he was not the triggerman. One of his 

accomplices, Ben Wright, testified that McCleskey admitted to 

shooting the officer. 0ffie Evans, a jail inmate housed near 

McCleskey testified that McCleskey made a "jail house confession" 

in which he claimed he was the triggerman. The police officer 

was killed by a bullet fired from a .38 caliber Rossi handgun. 

Though the weapon was not recovered, McClaskey had stolen a .38 

caliber Rossi in a holdup of a Red Dot grocery store two Aonths 

earlier. 

II. PRIOR PROCEEDINGS 

The jury convicted McCleskey of murder and two counts of 

armed robbery. It sentenced McCleskeay to death for the murder of 

 



  

the police officer and to consecutive life sentences for the twe 

.- robbery counts, In 1980, thesa convictions and sentences were 

affirmed by the Georgia Suprema Court, McCleskay vy, State, 245 

Ga. 108, 263 S.E.2d 146, cert, denied, 449 U.S. 891, 101 S.Ct. 

253, 66 L.Ed.2d 119 (1980). In January of 1981, McCleskey 

petitioned for habeas corpus relief in the Superior Court of 

Butts County, asserting over twenty challenges to his conviction 

and sentence. In an amendment to his petition, McCleskey alleged 

a Massiah violation, claiming that the introduction into avidence 

of statemants he made to an informer violated his rights under 

the sixth amendment. Sea Magaiah v. United States, 377 U.S. 201, 

84 5.Ct. 1159. The petition vas denied after an evidentiary 

hearing and tha Georgia Supreme Court denied McCleskey's 

application for a certificate of probable cause to appeal. The 

United States Supreme Court denied McCleskey's petition for 

certiorari. McCleskey v. Zant, 454 U.S. 1093, 102 8.¢t, 659, 70 

L.Ed.2d 631 (1981). 

McCleskey filed his first federal habeas petition in 

district court in Decambar of 1981, asserting eighteen grounds 

for granting the writ. That petition did pot include a clain 

under Massiah. It did, however, include a claim under Giglio v. 

United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1572), 

alleging that the state prosecutor had failed to reveal that 

Offia Evans, one of its witnesses, had been promised favorable 

* 

 



  

treatment as a reward for his testimony. In 1984, the district 

court granted habeas corpus relief as to McCleskay's Giglio 

claim, It ordered that his conviction and sentence for malice 

nurder be set aside, but affirmed his convictions and sentences 

for armed robbery. MgCleskey v. Zapk, 580 F.Supp. 338 (N.D.Ga. 

1984). 

Both parties appealed and in 1985, the Eleventh Circuit, 

sitting en banc, reversed the district court's grant of the writ 

on the Giglio claim and affirmed on all claims denied by the 

district court. McCleskey v. Kemp, 753 F.24 877 (llth Cir. 

1985) (en banc). MeCleskaey then filed a patition for a writ of 

certiorari in the Supreme Court of the United States. The supreme 

Court granted certiorari limited to consideration of the 

application of the Georgia death penalty and affirmed the 

Eleventh Circuit. McClezkey v, Kemp, 481 U.8. 279, 107 S.Ct. 

1756, 9% L.BEd.2d 262, petition for rehearing denied, 482 U.S. 

920, 107 8.Ct. 3199, 96 L.Ed.2d 686 (1987). 

McCleskey filed a subsequent petition for a writ of habeas 

corpus in state court in June of 1987. In an amendment to that 

petition, McClesksy once again raised a Magsiah claim, alleging 

that newly discovered svidence demonstrated that a jail inmate of 

McCleskay's was acting on behalf of the State as an informant. 

The stata court granted the State's motion to dismiss and the 

Georgia Supreme Court denied McCleskey's application for a 

 



  

certificate of probable causes. | 

McCleskay filed the present petition for a writ of habeas 

corpus in federal district court in July of 1987, Aftar 

evidentiary hearings on the petition in July and August of 1987, 

the district court entered an order granting habeas corpus relief 

only as to McCleskey's murder conviction and sentence based upon 

the finding of a Massiah violation. McCleskey v. Kemp, No. C87=- 

1517A (N.D. Ga. Dac. 23, 1987). 

The State now appeals the district court's grant of the 

writ, claiming that the district court abused ita discretion in 

failing to dismiss McCleskey's Massiah allegation as an abuse of 

the writ and that the district court erred in finding a violation 

of Massiah.’ 

III. ABUSE OF THE WRIT 

4. Ragkaxound 

Under tha doctrine of "abuse of the writ," a federal 

court may decline to entertain a second or subsequent habeas 

corpus petition that raises a claim that the petitioner did net 

  

: This court stayed the briefing schedule of the appeal 
pending the State's filing in district court of a motion under 
Fed.R.Civ.P. 60(b) for relief from the judgment based on the 
availability of witness Orffie Evans. The district court denied the 
motion and this court granted the State's motion to consolidate the 
State's original appeal and its appeal from the denial of the 
motion for relief from the judgment. 

 



  

raise in a prior petition. The doctrine is grounded in the 

court's equitable power to decline to entertain a habeas corpus 

petition properly within its jurisdiction when "a suitor's 

conduct in relation to the matter at hand . . . disentitle(s] him 

to the relief he seeks." Sanders v. United Stateg, 373 U.S. 1, 

17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (quoting Fav v. 

Noia, 372 U.S. 391, 438, 83 S.Ct 822, 849, 9 L.Ed.2d 837 (1963)). 

The statutory basis for the doctrine of abuse of the writ in 

cases of successive petitions for habeas corpus can be found at 

28 U.S.C. § 2244(b)’ and Rule 9(b) of the Rules Governing Section 

2254 Cases in tha United states District Courts’. These 

  

: 28 U.8.C. § 2244(b) states as follows: 

When after an evidentiary hearing on the merits of a 
material factual issue, or after a hearing on the merits 
of an issua of law, a person in custody pursuant to the 
judgment of a State court has been denied by a court of 
the United States or a justice or judge of the United 
Statas 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 
parson need not be entertained by a court of the United 
States or a justice or judge of the United States unless 
the application alleges and is predicated on a factual 
or other ground not adjudicated on the hearing of the 
earlier application for the writ, and unless the court, 
justice, or judge is satisfied that the applicant has not 

on the earlier application deliberately withheld the 
newly asserted ground or otherwise abused the writ. 

Rule 9(b) provides az follows: 

Successive Petitions. A sacond or successive petition may 
be dismissed if tha judge finds that it fails to allege 
new or different grounds for relief and the prior 
determination was on tha merits or, if new and differant 

; 

 



  

provisions address the problem of priscnars filing the same 

claims in successive petitions as well as the problem of 

prisoners who abuse the writ by filing their claims piecemeal. A 

"successive petition" is one that raises a claim already 

adjudicated through a prior petition, while a petition that 

raises grounds for relief not raised in the prior petition is 

analyzed as an "abuse of the writ." See Gunn .v., Newsome, 881 

F.2d 949, 955 n.6 (11th Cir. 1989) (en banc) (plurality opinien), 

petition for cert, filed, No. 89-611, 1989 WL 129621 (Oct. 16, 

1989). 

A federal court's decision to exercise its equitable power 

to dismiss a petition is based on different considerations in the 

two types of cases. In cases of successive petitions, equity 

usually will not permit a petitioner to reassert a claim reaclved 

against him "in the hope of getting before a different judge in 

multijudge courts." Seq Sec. 2254 Cases R. 9 advisory 

committee's note. In cases of abuse of the writ, equity counsels 

against allowing "needless piecemeal litigation" or "collateral 

proceedings whose only purpose is to vex, harass, or delay." 

Sanders, 373 U.S. at 18, 83 S.Ct. at 1078. In both instances, 

the need for finality in criminal law counsels atrongly against 

courts repeatedly reviewing criminal convictions. See Kuhlmann 

  

grounds are alleged, the judge finds that the fallure of 
tha patitionar to assert those grounds in a prier 
petition constituted an abuse of tha writ. 

 



  

¥. Wilson, 477 U.S. 436, 452-53, 106 S.Ct. 2616, 2626-27 (1986) 

(plurality opinion). 

The state has the burden of pleading that tha habeas 

petitioner has abused the writ. Price v, Johnston, 334 v.S. 266, 

291-92, 68 8.Ct., 1049, 1063, 92 L.Ed.2d 1356 (1948). This 

circuit has held that "[t]he stata carries its burden by 

recounting the petitioner's writ history, identifying the claims 

not raised before the instant petition and alleging that the 

petitioner abused the writ in violation of 28 U.S.C. § 2254, Rule 

9(b)."™ Booker v. Wainwright, 764 F.2d 1371, 1376 (llth Cir. 

1985), gert, denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 

(1985). The State has clearly met its burden here, as it is 

evident that McCleskey did not assert his Massiah claim in his 

first federal habeas petition. 

McClaeskay's previous failure to assert the claim does not, 

however, raquire the faderal court to dismiss his petition, for 

the courts have recognized "not all piecemeal litigation is 

needless." Rooker v, Wainwright, id.; gee also Haley v. Estelle, 

632 F.2d 1273, 1276 (5th Cir. 1980). Onca tha state has alleged 

abuse of the writ, the petitioner must be afforded the 

opportunity to justify his previous failure to raise the clain. 

  

: In Bonner v, City of Prichard, 661 F.2d 1206, 1209 (llth 
Cir. 1981) (en banc), this court adopted as binding precedent all 
decisions of the former Fifth Circuit handed down before October 
1, 1981. 

 



  

In deciding whether a petitioner has presented sufficient 

justification, courts have required the petitioner to show that 

he Aid not deliberately abandon the claim and that his failure to 

raise it was not due to inexcusable neglect. See Woodard v. 

Hutchins, 464 U.S. 377, 379, 104 S.Ct. 752, 753 (1984) (per 

curiam) (Powell, J., concurring, joined by four other justices); 

Demps Vv, Dugger, 874 F.2d 1385S, 1391 (11th Cir. 1989), petition 

for cert, filed, No. 89-5277, 1989 WL 113448 (Aug. 4, 1989); Witt 

v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), gsrt. denied, 454 

U.S. 877, 102 S.Ct. 357 (1981); Potts v. Zant, 638 F.2d 727, 740- 

41 (5th Cir. Unit B 1981), gert., denied, 454 U.S. 877, 102 S.Ct 

357 (1981).' If a court datarmines that the petitioner has 

failed to carry his burden of disproving an abuse of the writ, it 

may dismiss the petition unless the ends of justice demand that 

the court reach the merits. Sanders, 373 U.S. at 16-19, 83 S.Ct. 

at 1078-79; Demps Vv. Dugger, 874 F.2d at 1391; Davis v. Kemp, 829 

F.2d 1522, 1526 (11th Cir. 1987), cert. denied, 108 S.Ct. 1099, 

99 L.Ed.2d 262 (1988). 

Whether a sacond or subsequent petition is to ba dismissed 

on abuse of the writ grounds is left to the sound discration of 

the district court. ganders, 373 U.S. at 18, 83 S.Ct. at 1079: 

  

: In Stein v, Reynolds Securities, Inc,, 667 F.2d 33 (llth 
Cir. 1982), this court adopted as binding precedent all decisions 
of Unit B of the former Fifth Circuit handed down after September 
30, 1981). 

10 

 



  

Darden v, Dugger, g28 F.2d 287, 294 (llth cir. 1987), cert. 

denied, 108 S.ct. 1125, 99 L.Ed.2d 235 (1988); EQtta Vv. Zank, 638 

F.2d at 741. Yet aEroeb ion in such matters is not unfettered, 

and its sound exercise will rarely permit a district court to 

hear a petition that clearly constitutes an abuse of the writ. 

See GUNN Vv. Newsome, 881 F.2d at 949. 

In the instant appeal, the district court found that 

McCleskey could not be said to have intentionally abandoned his 

claim. We disagree and find that the district court abused its 

discretion in failing to dismiss a clearly abusive petition. 

2. Deliberate Abandonment of the Massiah Claim 
McCleskey asserts that his failure to raise a Magsiah claim 

in his earlier federal petition is justified because at the time 

he filed that petition, he lacked the evidence to support such a 

claim. To demonstrate a violation of sixth amendment rights 

under Masgsiah v., United States, 377 U.S. 201, 84 8.Ct. 1199, a 

defendant must show that the prosecution deliberately elicited 

incriminating statements from him in the absence of his lawyer. 

Massiah itself involved statements made by a defendant free on 

bail to a co-indictee in a car that had been wired by the 

government. In United States v, Henry, 447 U.S. 264, 100 S.Ct. 

2183, 65 L.Ed.2d 11% (1980), the Supreme Court applied Massiah to 

a situation in which incriminatory statements were made to a 

11 

 



  

cellmate who was a government informant. In Kuhlmann v, Wilson, 

the Supreme Court stressed that a defendant alleging a Magsiah 

violation "must demonstrate that the police and their informant 

tock some action, beyond merely listening, that was designed 

deliberately to elicit incriminating remarke." 477 U.S. at 459, 

106 8.ct, at 2630.’ 

McCleskey bases his Mass=iah claim on two pleces of evidence. 

The first is a 21-page written statement of Offie Evans, a 

prisoner who was incarcerated in the cell next to McCleskey's 

when McCleskey was in the Fulton County Jail awaiting trial. 

Evans testified against McCleskey at trial, relating several 

incriminating statements made by McCleskey. The written 

statement, which had been given to the Atlanta Police Department 

in August of 1978, sats out these conversations in great detail, 

demonstrating that Evans lied to McCleskey in order to get 

information from him.’ McCleskey argues that the written 

statement shows evidence of an ab initio relationship between 
  

7 

in Lightbourne v, Dugger, 829 F.2d 1012, gert, denied, 8. LL, 100 8.08,7329, 102 L.Bd.2d 346 (1988) (11th Cir. 1587), this circuit characterized petitioner's burden in a 
Massial/Henrvy claim as one involving two elements: "In order to establish a violation of the Sixth Amendment in a jailhouse informant case, the accused must show (1) that a fellow inmate was a government agent; and (2) that tha inmate deliberately elicited incriminating statements from tha accused." Id. at 1020, 

: For instance, Evans told McCleskey that his name was Charles, that he was the uncle of codefendant Ben Wri ht, and that he was supposed to be a participant in the robbery himself. 

12 

 



  

Evans and the prosacution and is thus highly relevant to his 

Magsiah claim, 

The sacond piace of avidance McClaskey uses to support his 

Massiah claim is the testimony of Ulysses Worthy who was captain 

of the day watch at the Fulton County Jail during the summer of 

1978. Worthy testified at two separate points during the 

district court hearings on McCleskey's sacond habeas petition. 

Though Worthy's testimony was at times confused and 

contradictory, the district court credited Worthy's assertion 

that at some point some officer involved with the case had asked 

that Evans be moved to a different cell. The district court 

Judge relied heavily on Worthy's testimony in holding that 

McCleskey had presented a valid Massiah claim. In fact, he found 

that "(tlhe lack of corroboration by other witnesses is not 

surprising; the other witnesses, like Assistant District Attorney 

Parker, had no reason to know of a raquest to move Evans or, like 

Detective Dorsey, had an obvious interest in concealing any such 

arrangement. Worthy, by contrast, had nc apparent interest or 

bias that would explain any conscious deception." McCleskey, No. 

€87-1517A, slip op. at 22. 

McCleskay maintains that he was unawara of both piaces of 

evidence critical to his Mas=siah claim until well after he filed 

his first federal habeas petition. It is uncontested that he did 

not obtain Evans' statement until July of 19587 and that he did 

13 

 



  

not know anc the existence of Worthy until the time of tha 

‘hearing on the second federal habeas petition. The State 

strongly contends that habeas counsel realized or should have 

realized that Evans had made a written statement concerning his 

conversations with McCleskey and asserts that petitioner's 

counsel should have made some effort to obtain that statement. 

The district court found, however, that McCleskey was not in fact 

aware of the written statement, and we cannot say that this 

determination is clearly erroneous. 

Assuming that McCleskey was unaware of both pieces of 

evidenca, the question before us is whether McCleskey's 

unawareness of the factual bases for his Masgiah claim at the 

time of his first federal habeas petition is sufficiant to 

justify his failure to present the claim. The district court 

found that it was sufficient, holding that McCleskey's 

unawareness precluded a finding of deliberate abandonment of the 

claim, despite the fact that McCleskey had raised it in his first 

stata habeas petition. We disagree. 

In finding that McCleskey did not deliberately abandon his 

Magsiah claim, the district court stated that: 

First petitioner cannot be said te have 
intentionally abandoned this claim. Although 
petitioner did raise a Massiah claim in his first state 
petition, that claim was dropped becausa it was obvious 
that it could not succeed given the then-known facts. 
At the time of his first federal petition, petitioner 
was unaware of Evans' written statement, which, as 
noted above, contains strong indications of an ab 

14 

 



  

initio relationship between Evans and the authoritias. 
Abandoning a claim whose supporting facts only later 
become evident is not an abandonment that "for 
strategic, tactical, or any other reasons . . . can be 
described as the deliberate by-passing of state 
procedures.” . . . Petitioner's Maggiah clainm is 
therefore not an abuse of the writ on which no evidence 
should have been taken. This is not a casa where 
petitioner has reserved his proof or delibarataly 
withheld his claim for a second petition. . . . Nor is 
the petitioner now raising an issue identical to one he 
earlier considered without merit. 

McCleskey, No. C87-1517A, slip op. at 24 (citations omitted). 

This holding by the district court misconstrues the meaning 

of deliberate abandonment. McCleskey included a Massiah claim in 

his first state petition, dropped it in his first federal 

petition, and now asserts it again in his second federal 

petition.’ Given that McCleskey had asserted the Maggiah claim 

in hia first state habeas petition, it is clear that the issue 

was not unknown to him at the time of his first federal petition. 

Further, we must assume that at the time McCleskey filed his 

first state habeas petition, counsel had determined that there 

was some factual basis for a Magsiah claim. Indeed, such a 

detarmination is not surprising. Not only was counsel aware that 

  

' In an amendment to his first state petitien, McCleskey 
allagad that: 

The introduction into evidence of petitioner's statements 
to an informer, elicited in a situation created to induce 
the petitioner to make incriminating statements without 
assistance of counsel, violated the petitioner's right 
to counsel under the Sixth Amendment to the Constitution 
of the United States and Section 2-111 of the 1976 
Constitution of tha State of Georgia. 

15 

 



  

Evans was in a cell naxt to McClegkey;' 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." The petitioner and his counsel did not accidentally 

fail to include the Magsiah claim in the federal petition, but 

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

it previously. This constitutes prima facie evidence of 

deliberata abandonment. In Darden v. Dugger, we stated that: 

The record shows that the issue presanted in this third 
petition was specifically withdrawn from the district 
court's consideration as being not well founded. The 
issue was abandoned. Intantional abandonment of a 
claim is precisely the context that application of the 
concept of abuse of the writ is intended to address. 
Witt, 755 F.24 at 1397. Petitioner may ba daemed to 
have waived his right to a hearing on a successive 
application for federal habeas relief when he 
deliberately abandons one of his grounds at the first 
hearing. 

825 F.2Q at 294, 

When asked at the second federal habeas hearing why he did 

not pursue the Massiah claim in his first federal petition, 

counsal responded that his efforts to find evidence in support of 

  

Evans testified at trial as to certain statements that 
McCleskey had made in prisen. : 

“ In Giglio v., United States, 405 U.S. 150, 92 S.Ct. 763, 31 
L.EQ.2d 104 (1572), the Supreme Court held that the state violates 

due process when it obtains a conviction on the basis of a 
witness's testimony when the witness has failed to disclose a 
promise of favorable treatment from the prosecution. McCleskey 
included a Giglio claim in his first state and first federal habeas 
petitions. 

16 

 



the claim had failed. It appears, however, that these efforts 

‘were somewhat lacking. Counsel testified that he informally 

attempted to contact jailers at the Fulton County Jail, but that 

they could provide him with no information.” He also noted that 

at a deposition taken for the first state habeas hearing, Russell 

Parker, the District Attorney prosecuting the case, claimed that 

he was unaware of any instance in which Evans had worked for the 

Atlanta Police Department prior to his overhearing conversations 

at the Fulton County Jail. Counsel testified that he did not 

carry the Massiah claim over into the federal habeas petition 

because he "looked at what we had been able to develop in support 

of the claim factually in the state habeas proceeding and made 

the judgment that we didn't have the facts to support the claim 

  

iy At his second federal habeas hearing, the lawyer who 

represented McCleskey at the first federal habeas hearing testified 

that he "spoke with a couple of Atlanta Bureau of Police Services 

officers" in order to find out how to develop factual evidence in 

support of a claim. Pursuant to thelr suggestion, counsel spoke 

with two or three persons who were deputies at the Fulton County 

Jail. He testified that "none of them had any information. 

Basically they had no recollection of the circumstances regarding 

how Evans came to be assigned to the jail cell that he was assigned 

to or of any conversations with the Atlanta Bureau of Police 

Services Detectives regarding Offie Evans' assignment to that Jail 

call.” 

Counsel apparently made ne attempt to contact persons who 

clearly had contact with Evans and McCleskey at the Fulton county 

Jail. He testified that he did not speak to Detective Dorsey 

(mentioned by Evans in his testimony at the first state habeas 

hearing), to Detectives Jowers or Harris (officers who had 

investigated the McCleskey case), or Deputy Hamilton (who testified 

at trial regarding his contact with Mr. Evans). 

17  



  

and, therefore, did not bring it into federal court.” 

Abandoning a claim after initial investigatory efforts prove 

unsuccessful cannot insulate a petitioner from abuse of the writ. 

See Witt v. Wainwright, 755 F.2d at 1397 (insufficient to allege 

that evidence was not availabla if it was within petitioner's 

power to elicit such evidence at time of earlier petition): 

Woodard v, Hutching, 464 U.8. 377, 379 & n.3, 104 8.Ct. 752, 7853 

& n.3 (1984) (per curiam) (Powell, J., concurring, joined by four 

other justices) (petitioner found to have abused tha writ when he 

is unable to explain why examination providing evidence of 

insanity was not conducted earlier); Antone v. Dugger, 465 U.S. 

200, 205 & n.3, 206, 104 S.Ct. 962, 964 & n.3, 965, 79 L.Ed.2d 

147 (1984) (per curiam) (haste with which first habeas petition 

prepared does not require courts to consider claims withheld from 

that petition if substance could have been presented in first 

petition). 

McCleskey places great emphasis on tha fact that the state 

allegedly withheld Evans' 2l-page statement from both trial and 

habeas counsel. The statement was ultimately obtained in June of 

1987 through a request pursuant to the Georgia Open Racords Act, 

0.€.G.A. § 50-18-72(a). It is clear, however, that the statement 

itself does not demonstrate the existence of a Massiah violation. 

At most, it was simply the catalyst that caused counsel to pursue 

the Massiah claim more vigorously. The key piece of evidence 

18 

 



  

supporting NcClaskey's Massiah claim was the testimony of Worthy, 

‘who testified for tha first time at the second federal habeas 

hearing in July of 1987. Counsel claims that he did not discover 

Worthy until he engaged in a "massive, indiscriminate effort to 

subpoena everyone whose name was mentioned in any document." 

McCleskey has not presented any reaseon why counsel would have 

been unable to contact Ulysses Worthy back in 1981 when the first 

federal habeas petition was filed. Nor has he shown that a more 

extensive effort at that time to track down persons with 

information as to what transpired in the county jail during the 

summer of 1978 would not have turned up Worthy. A petitioner and 

his counsel may not circumvent the abuse of the writ doctrine by 

failing to follow through with an investigation and then later 

claiming 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 tor habeas corpus.” 

C. Ends of Justice 

Having found that McCleskey abused the writ by deliberately 

abandoning his Massiah claim, we must now decide whether the 

  

Jy We also note that in 1981 there apparently still existed 

records listing each prisoner's cell assignment and any visitation 

of prisoners by outsiders. These records, which would hava 

corroborated or disproved Worthy's testimony, have since been 

destroyed. 

i9 

 



  

"ends of justice" require consideration of his claim on the 

merits." Sea Sanders v. United States, 373 U.S. at 16-19, 83 

5.Ct. at 1078-79. In Kuhlmann v. Wilson, the Supreme Court 

attempted to give greater content to the open-ended "ends of 

justice™ inquiry. Its statement, however, that "the ‘ands of 

justice' require federal courts to entertain such petitions enly 

where petitioner supplements his constitutional claim with a 

colorabla showing of factual innocence" 477 U.S. at 454, 106 

S.Ct. at 2627, commanded only a plurality of the justices. See 

Messer Vv, Kemp, 831 F.2d 946, 958 n.19 (11th Cir. 1987) (en banc), 

cert, denied, ___ U.S. ___, 108 S.ct. 1586, 99 L.Ed.2d 502 

(1988). Thus, the circumstances under which ends of justice 

would require rehearing of an otherwise abusive petition remain 

unparticularized. 

We find it unnecessary to more narrowly define the 

circumstances in this case. Por, the instances in which ends of 

justice would require a rehearing of a claim do not include those 

in which a violation of a constitutional right would be found to 

constitute harmless error.” The mambers of this panel disagree 

  

u The district court did not reach the "ends of justice" 
inquiry as it found that McClaskey's claim did not constitute abuse 
of tha writ. 

Sas Masger v. Kemp, 831 F.2d at 938-39: 

Because we conclude, as a matter of law, that the record 
in this case fails to disclose an Ake violation, our 
"ends of justice" analysis need not proceed any further. 

20 

 



  

as to whether the district court was correct in finding that 

McCleskey had established a Massiah violation. Pretermitting 

that inquiry, however, the panel is unanimous that any violation 

that may have occurred would constitute harmless error and that 

the district court erred in concluding otherwise. 

R- Harmless EXror 

The remedy for a Massiah violatien is not an automatic 

reversal of a conviction, but rather the exclusion of evidence 

tainted by the violation of petitioner's right to counsel. 

United States v. Morrison, 449 U.S. 361, 365, 101 §.Ct. 665, 668, 

66 L.Ed.2d 564 (1981). The previous use of the tainted evidence 

will not result in a reversal of a conviction if it constituted 

"harmless error." Under the harmless error doctrine, the state 

must "prove beyond a reasonable doubt that the error complained 

of did not contribute to the verdict obtained." Chapman ¥. 

california, 386 U.S. 18, 24, 87 5.Ct, 824, 828, 17 L.Ed.24 705 

(1967). See also Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 

1792, 1798, 100 L.Ed.2d 284 (1988) (harmless error analysis 

applied to sixth amendment violation tainting evidence in 

sentencing phase of capital trial): Brown v, Dugger, 831 F.2d 

1547, 1554 (11th Cir. 1987). 

In this case, the district court held that the error 

  

That is, we need not address any other factors relevant 
to the "ends of justice" in light of our conclusion that 
no constitutional violation occurred. : 

21 

 



  

complained of could not be found harmless beacause Evans‘ 

testimony concerning McClaskey's incriminating statements was 

critical to the State's case. In reaching this conclusion, tha 

court ignored the Eleventh Circuit's previous discussion in 

McClegkey, 753 F.2d at 884-885, of the importance of the avidence 

introduced through Evans' testimony at trial. Though that 

discussion occurred in the context of McCleskey's Giglio claim, 

it clearly has bearing on the import of Evans' testimony in the 

context of McCleskey's Massian claim. It is true, as petitioner 

argues, that the harmless error inquiry in the case of a Giglio 

claim differs from the inquiry in the case of a Massiah 

violation, but this difference does not save McCleskey's claim. 

The crucial question in a Giglio claim ig whether the 

state's failure to disclose its promise of reward to a witness 

affected the judgment of the jury as to the credibility of that 

witness. gee Giglio, 405 U.S. at 154, 92 S.Ct. at 766. In its 

previous opinion, the Eleventh Circuit held that the judgment of 

the jury that convicted McCleskey was not affected by the lack of 

disclosure. Its holding was based on two separate grounds. 

First, it found that "Evans credibility was exposad to 

substantial impeachment even without the detective's statement 

and the inconsistent description of his escape," as the jury had 

already been made aware of Evans' extensive list of past 

convictions. 753 F.2d at 884. Sacond, and more important for our 

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purposes, the Elsventh circuit found that, in light of all the 

other evidence presented to tha jury, gvans' testimony could not 

win any reasonable. likelihood have affected the judgment of the 

jury.'™ Id. at 885 (quoting Napue Vv, Illinois, 360 U.8. 264, 

271, 79 S.Ct. 1173, 1178, 3 L.BEd.2d 1217 (1959)). This is 

precisely the finding that must be made in a harmless error 

analysis under Massiah and upon reexamination, we find no reason 

to disturb this finding. 

Evans was called by the State on rebuttal to strengthen its 

proof that McCleskey was the triggerman at the holdup. He 

testified that McCleskey had admitted to him that he had shot the 

policeman and that McCleskey had admitted to wearing makeup to 

disguise himself during the robbery. He also stated that 

McCleskey said he would have shot his way out even if there had 

been a dozen policemen. 

Turning first to Evans' testimony regarding McClaeskey's 

admission that he was the triggerman, we feel that the state has 

met its burden of proving, beyond a reasonable doubt, that this 

testimony did not contribute to the verdict. Pirst, as noted by 

the en banc court, McCleskey's codefendant, Ben Wright, also 

testified that McCleskey was the triggerman. Though Georgila law 

requires corroboration of an accomplice's testimony in felony 

cases, it is clear that corroboration can be through 

circumstantial as well as direct evidence. Davis v. State, 178 

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Ga.App. 760, 344 S.E.2d4 730, 732 (Ga.App. 1986) quoting gunter v. 

-gtate, 234 Ga. 651, 655, 256 S.E.2d 341 (Ga. 1979). 

The State presanted a substantial amount of circumstantial 

evidence. McCleskey himself confessed to his participation in 

the robbery. The officer was killed by the man who entered and 

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

the back. McCleskey was identified by two of the store personnel 

as the robber who came in the front door. The officer was killed 

by a bullet from a .38 caliber Rossi handgun. The State 

presented evidence that McCleskey had stolen a .38 caliber Rossi 

in a pravious holdup. The gun that McCleskey had stolen had a 

white handle. The State Sresentad testimony from an eyewitness 

that the robber who ran out the front door after the robbery was 

carrying a pearl-handled pistol. This evidence not only 

corroborates Ben Wright's testimony, but is of sufficient 

quantity to allow this court to find that any additional 

testimony by Evans did not contribute to the verdict. 

Evans' testimony regarding McCleskey's statement that he was 

wearing makeup could also not have reasonably affected the jury's 

determination. The en banc court found that: 

Evans' testimony that McCleskey had made up his face 
corroborated the identification testimony of one of the 
eyewitnesses. Nevertheless, this evidence was not 
crucial to the State's case. That McCleskey was 
wearing makeup halps establish he was the robber who 
entered the furniture store through the front door. 

This fact had already been directly testified to by 

McCleskey's accomplice and two eyewitnesses as well as 

24 

 



  

corroborated by McCleskaey's own confession. That 

Evans' testimony buttresses one of the eyewitnesses' 

identifications is relatively unimportant. 

763 F.24 at 8885. 

Finally, petitioner asserts that Evans' testimony as to 

McCleskey's statement that he would have been willing to shoot 

twelve policemen affected the jury's finding as to the presence 

of malice and increased its willingness to impose a sentence of 

death. Once again, we find that the en banc court's analysis of 

this issue demonstrates that this testimony was not crucial to 

the jury's finding of malice murder. The court wrote that: 

In his closing argument, however, the prosecutor 
presanted to the jury thrse reasons supporting a 

conviction for malice murder. First, he argued that 

the piysica) evidence showed malicious intent because 
it indicated that McCleskey shot the police officer 

once in the head and a second time in the chest as he 

lay dying on the floor. Second, the prosecutor 
asserted that McCleskey had a choice,. either to 
surrender or to kill the officer. That he chose to 

xill indicated malice. Third, the prosecutor contended 
that McCleskey's statement to Evans that he still would 

have shot his way out if there had been twelve police 
officers showed malice. This statement by McCleskey 

was not developed at length during Evans' testimony and 

was mentioned only in passing by the prosecutor in 
closing argument. 

I&. at 885. In addition, the court finds no reasonable 

likelihood that the jury's imposition of the death penalty was 

affected by Evans' testimony. The prosecutor did not introduce 

Evans as a witness at the sentencing phase of trial, nor did he 

use Evans' testimony to portray McCleskey as a hardened criminal 

deserving of death, but concentrated instead on McCleskey's prior 

25 

 



  

convictions." 

Because evidence other than Evans' testimony presented in 

the case presents such a clear indication of McCleskey's guilt, 

this court finds beyond a reasonable doubt that the jury would 

have convicted and sentenced McCleskey as it did even without 

Evans' testimony. Our determination that any Massiah error would 

be harmless precludes a finding that the ends of justice would 

require us to entertain McCleskey's claim on the merits. 

CONCLUSION 

The judgment of the district court granting the petition for 

writ of habeas corpus is reversed and the petition is hereby 

denied as an abuse of the writ. | 

REVERSED. 

  

» This case can easily be distinguished from Satterwhite 
v. Texag, 486 U.S. 249, 108 S.Ct. 1792, 100 L.E4.2d4 2B4 (1988), " 
case that petitioner cites as controlling. In Satterwhite, 
psychiatrist, who had interviewed the defendant in violation of his 
sixth amendment rights, testified in a separate sentencing 
proceeding that the defendant presented a threat to society through 
continuing acts of violence. In finding that the constitutional 
error was not harmless, the Court stressed that under Texas law, 
a jury may not sentence a defendant to death unless it finds that 
the defendant would commit acts of violence and would be a threat 
to society. Additionally, the Court found that the psychiatrist's 
testimony stood out "both because of his qualifications as a 
medical doctor specializing in psychiatry and because of the 
powerful content of his message." Jd. at __ , 108 8.Ct. at 1799. 
In the instant case, the jury was not instructed as to future 
dangerousness, and the Eleventh Circuit found, in its previous 
discussion of the Giglio violation, that Evans' testimony had 
already been greatly impeached by his own criminal background. 753 
F.2d at 884. 

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