Decision
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November 22, 1989

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Case Files, McCleskey Legal Records. Decision, 1989. 4eabcfb7-62a7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/924166ac-28fe-4354-9319-847abeda1084/decision. Accessed July 13, 2025.
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3 _ « 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 Hol 22. 88 1 era HOBERT. MW, CULLEN PAGE . B83 " HOU-22-'89 WED 14:50 ID:ROBERT W. CULLEM TEL MO:4dB4 521-1929 B951 FB4 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). ec ‘BEd 16:88 FOBERT WW. CULLEH FRGE .BG4 *HO=-Z22-08 LED 14:50 ID:POBERT WW. CULLEW TEL MO:4B4 521-1929 #331 PES 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 16:81 ROBERT Wh. CULLEN PAGE . BAS oo in ) J WOU-22--89 WED 14:5] IIGROBERT WM, CULLEN TEL HO:4B84 521-1929 #931 PEE 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 MOU 22 B89 JB:187F | ROBERT WW, CULLEN FAGE . BEE : MOL-22-'89 WED 14:52 ID:RFOBERT W. CULLEW TEL MHO:484 521-1929 H931 PAY 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 22 83 1B:0F ROBERT Ws CULLEN PAGE . BH i | 4 . NOU-22-°89 WED 14:52 ID:FOBERT WW. CULLEM TEL NO:4B84 521-1929 #931 PES 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. NOL 22 883. .06:82 ROBERT WW. CULLEN PAGE, BOE TNOU-22-'89 WED 14:53 ID:ROBERT W. CULLEN TEL NO:4@4 521-1923 #931 PED il 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 . 0 I I MOL ZZ '88 18:03 ROBERT Wi. CULLEN PAGE .OG BOL 22 '89 16:04 ROBERT W. CULLEN PAGE. 210 i MOL 20 WED 14:53 ILROBERT W. CULLEN TEL HO:484 521-1929 931 P18 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. 8 “MOV-22-°89 WED 14:54 1D:ROBERT W. CULLEN TEL NO:484 521-1929 HI31 P11 ¥; 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. ji 22 ‘go -1Bi fc ROBERT ld, CULLEN PAGE B11 . NOU-22- 83 WED 14:35 ID:ROBEET I. CULLEM TEL HO: 484 521-1929 #931 P12 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). 10 =o yo0 (E15 ROBERT WW. CULLEN FAGE .@1 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 11 NOU 22 '89 15:85 ROBERT W. CULLEN PAGE. @13 *MNOWV-22-'89 WED 14:56 ID:ROBERT WW. CULLEN TEL MO:4B4 521-1929 ASSL Ply ot 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 NOW ZZ BS lBi0E ROBERT 4. CULL EH FRGE.B14 « MOW-Z2Z2-89 LED 14:56 ID:REOBEET W. CULLEM TEL HO:484 521-1929 #931 F15 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 ROL 22 sme (EBT FOBERT IW. CULULLEH FREE. BLE MOL "HOU-Z2-'29 WED 14:57 II:ROEERT WW. CULLEN TEL HO:4B4 521-1329 B931 Ple 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 — 22 ‘gg 1E:@8 FOEERT WW. CULLEH PAGE . B81 Ti « HiL-Z2-'09 LED 14:58 IDMPEIRERT UW, CULLEN TEL HO:4B4 521-1929 HI PLY 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. 15 NOI 22 gad 1E:0B BOBERT WW. CULLEN PAGE . B17 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. 16 J) ZR olga le: 0S ROBERT WW, CLLLEN FAGE . @1 « HOWL-Z22-'89 WED 14:59 ID:ROBERT W. CULLEN TEL HO:484 521-1929 Soe 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 22 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 23 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. 26