General Legal Files (Drafts)

    IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT CF GEORGIA 

ATLANTA DIVISION 

  

WARREN McCLESKEY, : 

Petitioner, 

vs. HABEAS CORPUS 
NO. 
  

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic and : 
Classification Center, : 

Respondent. $ 

  

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 
  

The petitioner, WARREN NMCCIFSKEY, by his undersigned 

counsel, moves the Court, pursuant to 23 U.S.C. §1915, for leave 

to file his petition for habeas corpus, without prepayment of 

  

costs, and to proceed in forma pauperis. An: affidavit by 

petitioner in support of this motion is attached hereto. 

Dated: July 6, 1987 Respectfully submitted, 

ROBERT H. STROUP 

141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

 



  

JULIUS L. CHAMBERS 

JAMES M. NABRIT III 

JOHN CHARLES BOGER 

99 Hudson Street 

New York, New York 10013 
(212) 219-1900 

ATTORNEY ‘FOR THE PETITIONER 

: % 5 “5 £3 
3 T ¢ - F£ ra ay A vy Fo 1a wth pdr 

w 3 v Ly 

Foes 
Fi 

  

 



  

IN THE SUPERIOR COURT OF BUTTS 

STATE OF GEORGIA 
  

WARREN McCLESKEY ___ ¢ a 
Petitioner, Civil Action No. 

  

  

D=002925 ’ 
Tnmate Number Habeas Corpus 
  

VS 

RALPH KEMP, , Warden 
  

Georgia Diagnostic & Classification Center, 

Name of Institution 
Respondent. 

  

  

Request to Proceed 1n Forma Pauperis 
  

I; WARREN McCLESKEY , being first duly sworn, depose and 
  

say that I am the plaintiff in the above entitled case; that in 

support of my motion to proceed without being required to prepay 

fees, costs or give security therefor,l state that because of my 

poverty I am unable to pay the costs of said proceeding or to give 

security therefor; that I believe I am entitled to redress. 

I further swear that the responses which I have made to ques- 

tions and instructions below are true. 

eo Are you presently employed? Yas { ) No (2) 

a, If the answer is yes, state the amount of your 

salary or wages per month, and give the name and 

address of your employer. 

  

  

  

AOC-6 
{7-1-85)  



b. If the answer is no, state the date of last 

  

employment and the amount of the salary and wages 

per month which you received. 

/ YA 4 wr’ : Lo part Es A - 
5 i” 

  

  

  

2. Have you received within the past twelve months any 

money from any of the following sources:. 

a. Business, profession or form of self-employment? 

Yes, 1) No. (-) 

b. Pensions, annuities or life insurance payments? 

Yes ( ) No (+) 

Ce Rent payments, interest or dividends? 

Yes ( ) No (:) 

d. Gifts or inheritances? 

Yes ( ) No (<£) 

e. Any other sources? 

Yes (&¥y7 No {.) 

If the answer to any of the above is yes, describe each 

source of money and state the amount received from each 

during the past twelve months. 
— a 

pa -, ~Y : ) 
i= = p 4 9 * 

  

  

3. Do you own any cash, or do you have money in a checking 

or savings account? Yes (+) No { ) (Include any 

funds in prison accounts) 

If the answer is yes, state the total value of the items 

owned. 

  
  

AOC-6 i rig. 
(7-1-85)  



  

4, Do you own any real estate, stocks, bonds, notes, auto- 

mobiles, or other valuable property (excluding ordinary 

household furnishings and clothing)? 

Yes (J) No (:) 

If the answer is yes, describe the property and state 

its approximate value. 

  

  

  

Be List the persons who are dependent upon you for finan- 

cial support; state your relationship to those persons, 

and indicate how you contribute toward their support. 

  

  

    

  

I understand that a false statement or answer to any ques- 

tion in this affidavit will subject me to penalties for perjury 

and that state law provides as follows: 

(a) A person to whom a lawful oath or affirmation 

has been administered commits the offense of 
perjury when, in a judicial proceeding, he 
knowingly and willfully makes a false state- 
ment material to the issue on point in question 

(b) A person convicted of the offense of perjury 

shall be punished by a fine of not more than $1000 
or by imprisonment for not less than one or more 
than ten years, or both....0.C.G.A.§16-10-70 

  

Signature of Petitioner 

AOC-6 
(7-1-5855) =3~-  



  

VIA FEDERAL EXPRESS 
  

July 27, 1957 

Hon. Joseph F, Spaniocl, Jr. 
Clerk 
Supreme Court of the United States 
One First Street, N.E. 
Washington D.C. 20543 

Attn: Francis J. Lorson 

Warren McCleskey Vv. Ralph M. Kemp 
No. 
  

Dear Mr. Spaniol: 

I am writing as counsel for Warren McCleskey, a Georgia 
death-sentenced inmate, currently scheduled to be executed on 
Tuesday, July 14, 1987 at 72:30 p.m, E.D.T. At the request of 
Chief Deputy Clerk Lorson of your office, I am enclosing for 
vour information 10 copies of: (i) a petition for a writ of 

habeas corpus in the above-captioned case; (ii) an application 
for a stay of execution; and (iii) a motion for discovery, all 
of which are being filed in the United States District Court 
for the Northern District of Georgia today. 

I will forward copies of other documents to be filed in 
this case as they are produced. 

Thank you very much. 

Sincerely, 

Fo 

n Charles Boger 

JCB/sbr 

cc: Mary Beth Westmoreland, Esq. 

  

NINETY NINE HUDSON STREET, 16th FLOOR Ld (212) 219-1900 ° NEW YORK, N.Y. 10013  



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, : 

Petitioner, : 

CIVIL ACTION NO. VS. 

RALPH KEMP, :   

Respondent. : 

AFFIDAVIT OF ROBERT H, STROUP 
  

STATE OF GEORGIA) 

COUNTY OF te 

Personally before the undersigned officer duly 

authorized by law to administer oaths appeared ROBERT H. 

STROUP, who, after being duly sworn, deposes and states as 

follows: 

1. My name is ROBERT H. STROUP. I am more than 

eighteen years of age, and am under no legal disability of 

any kind. This affidavit is given freely and voluntarily, 

without coercion of any kind. I understand it will be used 

in court proceedings on behalf of Warren McCleskey. 

2. I was initially retained to represent Warren 

McCleskey in April, 1980. At that time, a petition for writ 

of certiorari to the Georgia Supreme Court was due to be 

filed in the United States Supreme Court within days of my 

retention, and my first act was to obtain an extension of 

time for the filing of that cert petition. 

 



  

3. JI-Filed-a petition for certiorari in the United 

States Supreme Court in June, 1980. One of the issues I 

raised on McCleskey's behalf was a Brady claim--that the 

State had wrongfully withheld McCleskey's oral statement to 

Evans. In preparation for bringing this claim I reviewed 

the Georgia Supreme Court decision as well as the trial 

transcript. I did not understand that there was a written 

statement from Offie Evans. Like the Georgia Supreme Court, 

I understood that there was an oral statement, and that it 

had been introduced in its entirety through Evans's 

testimony at trial. 

4. The next major development related to the case was 

the denial of cert by the United States Supreme Court in 

October, 1980, and the setting of a new execution date. On 

December 19, 1980, McCleskey appeared in Fulton Superior 

Court and his execution was scheduled for January 8, 1981. 

5. In December, 1980 and January, 1981, TI 4id 

extensive research and investigation relative to the habeas 

corpus petition that was filed on McCleskey's behalf in 

Butts Superior Court on January 5, 1981, More than 20 

substantive claims were raised in the petition; several of 

them required investigation outside of the trial transcript. 

In January, 1981, I interviewed, in person or by phone, more 

than 30 persons relative to these claims. 

Among the facts which I sought to develop were the 

facts surrounding Evans's involvement as a witness at 

 



  

McCleskey's trial. At no time during the state habeas 

process did I learn of the existence of a written statement 

given by Offie Evans prior to McCleskey's trial. I would 

surely have requested that information had it come to my 

attention, given my effort to develop the details of Evans's 

relationship with County and City personnel. 

6. During the course of the federal habeas hearing, I 

sought further discovery of federal officials regarding the 

circumstances surrounding Evans's escape from the federal 

halfway house. Again, at no time did it come to my 

attention that Evans had given a written statement to 

Atlanta police and the Fulton County District Attorney's 

Office in August, 1978. 

7. After the October, 1986 argument of McCleskey's 

case in the United States Supreme Court, Jack Boger and I 

continued to examine possible constitutional claims that 

might be raised on Mr. McCleskey's behalf. One issue to 

which our dicussions returned was the understanding between 

Offie Gene Evans and Atlanta police detective Sidney Dorsey, 

under which Evans expected that Dorsey would "speak a word" 

with federal authorities about his pending federal escape 

charges in exchange for his testimony against McCleskey. A 

majority of the Court of Appeals had denied relief on this 

claim, finding that the understanding between Evans and 

Dorsey was too "marginal" or insubstantial to have 

constituted a "promise" under Giglio v. United States, and 
  

that revelation of the understanding to McCleskey's jury 

 



  

would have been "unlikely [to] . . . have affected the 

jury's assessment of Evans's credibility." 

8. We were both troubled, however, by the factual 

premises of these legal conclusions and we decided that it 

could prove useful to speak with Offie Evans to clarify the 

understanding he had worked out in 1978 with Detective 

Dorsey. We also agreed to contact McCleskey's jurors, to 

determine firsthand whether revelation of Evans's agreement 

with Dorsey may have made a difference in their verdicts. 

9. We began in late March of 1987 what proved to be a 

long, expensive and fruitless effort to make direct contact 

with Offie Evans. Working through the Department of 

Corrections, I determined that Evans was back in the state 

penal system, serving a sentence in the Ware Correctional 

Institution in Waycross, Georgia. I spoke with Ware 

Correctional officials and determined that we could visit 

Mr. Evans with his agreement. My co-counsel, Jack Boger 

then wrote to Evans, asking permission to speak with him. 

When our letter went unanswered, I spoke again with Ware 

officials and learned that an inmate counsellor was 

available to convey our request to Evans directly. I spoke 

with his counsellor, but was again unable to schedule a 

meeting. 

10. We then learned that Evans was scheduled for 

release and was expected to return to Atlanta on May 10, 

1987. 1 contact his sister and requested that she let me 

know when Evans arrived in Atlanta. She agreed to do so. 

 



  

Yet during the week of May 11-15th, I was unable, despite 

frequent attempts, to make direct contact with Evans. 

Thinking that perhaps a black, rather than white, attorney 

might be able to establish some greater amount of trust with 

Evans and his family, I asked a young black attorney, Bryan 

Stephenson, to attempt to make contact with Evans. For 

several weeks Stephenson tried to talk with Evans, making 

frequent visits to several of Evans's relatives at different 

hours of the day and night. His efforts were also 

unsuccessful. 

11. Finally, sensing that time was growing short, Jack 

Boger and I decided to hire Delaney Bell, a highly- 

recommended private investigator, to locate Offie Gene 

Evans. Although Mr. Bell (i) checked probation sources--who 

informed him that Evans had not shown up for required 

probation meetings; (ii) talked with numerous family and 

community sources; (iii) checked Atlanta Police Bureau 

sources and (iv) "staked out" the locations where Mr. Evans 

was said to sleep, he was unable to locate Evans. 

12. As indicated earlier, our purpose in seeKing Offie 

Gene Evans was to learn more about the understanding he had 

reached in 1978 with State officials, to strengthen the 

factual basis for the Giglio claim. During one telephone 

conversation with Jack Boger in late May, 1987, we explored 

other possible sources of information. I mentioned to him, 

in passing, the recent success of a number of Georgia 

 



  

broadcasters in obtaining police investigative files in the 

Wayne Williams case. 

13. Although I was not otherwise familiar with the 

Georgia Open Records Act, and although I had never heard of 

its being used successfully to obtain records in an on-going 

criminal or habeas proceeding, I agreed that we might use 

the apparent victory of the broadcasters in Napper v. 
  

Georgia Television Co., No 44381 (Georgia Supreme Court) to 
  

request access to the police investigative file in the Frank 

Schlatt/Dixie Furniture Store case. 

14. Late Friday afternoon, May 29, 1987, I contacted 

Mr. Roy Mays, an Assistant City Attorney with whom I had had 

prior contacts, who suggested that I make a formal written 

request to the Atlanta Bureau of Police Services. He 

indicated, however, that it was unlikely that any documents 

would be produced until the Georgia Supreme Court acted on 

the City's petition for rehearing. I was advised by Mr. 

Mays that the City had specifically requested in its 

rehearing position that the Supreme Court reconsider its 

newly-announced rule that a criminal investigation would be 

deemed "closed" under the Open Records Act even if a habeas 

Corpus proceeding was pending. On Monday, June 1, I hand- 

delivered a letter to the Chief of Police, requesting "the 

opportunity to inspect and copy all records in the 

possession and/or control of the Atlanta Bureau . . 

related to the investigation into the slaying of Officer 

 



  

Frank Schlatt in May, 1978." (See Federal Petition, Exhibit 

Q). 

15. On June 4, I was contacted by Deborah Floyd, an 

Associate City Attorney, who informed me that the Georgia 

Supreme Court's decision of June 3, modifying its earlier 

Napper opinion, would have some bearing on whether any or 

all documents would be released. She indicated that 

preliminarily she had flagged approximately 97 documents as 

subject to potential privacy concerns under the modified 

decision of June 3. At her request, I agreed to a short 

extension of time. 

16. On June 10, I telephoned Roy Mays and Deborah 

Floyd and stressed the urgency of my request. When asked to 

specify documents I was interested in, I replied that my 

first priority was any documents relating to Offie Gene 

Evans. Deborah Floyd happened to recall one such document 

in the file, and the City agreed to furnish that one 

document while awaiting further clarification from the 

Supreme Court in the Napper litigation. (By that time, the 

Georgia broadcasters had filed their own petition for 

rehearing). At the time the City agreed to make this "memo" 

available, I had no idea what the document was, or what 

information it contained. It was in this manner that I came 

into possession of the August 1, 1978 statement of Offie 

Gene Evans. 

17. Since filing the First Amendment to the state 

habeas petition, the State has pointed to a number of 

 



  

references in the transcript which, the State contends, 

should have made the existence of this written statement 

obvious to me. Its existence was not obvious to me, prior 

to June 10, 1987, when 1 received a copy from the City 

Attorney's office. Prior. to that time, I simply did not 

understand that there was a written statement from Evans. 

18. In preparing for both the initial cert petition in 

June, 1980, and the initial state habeas petition in 

January, 1981, I had reviewed the 1037-page transcript of 

trial. I had also reviewed the Georgia Supreme Court's 

decision on direct appeal. 1 was left with the distinct 

impression that there was nothing in writing related to 

Offie Gene Evans that the State was withholding. This 

impression was based, I believe, on the trial court's own 

reference--when John Turner was seeking production of 

additional documents--that "I don't know that we are talking 

about any written statement." (Tr., 831). Further, the 

Georgia Supreme Court, on direct appeal, upheld the denial 

of access to Evans's oral statement without a hint that any 

written pre-trial statement by Evans existed. The Supreme 

Court explicitly stated that "the evidence [defense counsel] 

sought to inspect was introduced to the jury in its 

entirety." This was in obvious reference to the actual oral 

testimony of Evans at trial, further reinforcing my 

impression that there was nothing written that the State had 

not produced. 

 



  

19. The State has also argued that the trial court's 

order of September 27, 1978 should have served notice on me 

that there was a written statement. However, that order 

makes no reference to the witness Offie Gene Evans (or any 

other witness) and I have no recollection of connecting that 

September, 1978 order with any witness statements. My own 

recollection is that my investigation indicated that the 

order related to 3 test of hair samples that were taken from 

each of the co-defendants. I certainly did not connect that 

order to Offie Gene Evans. 

20. The State also contends that a passing comment 

from the Russell Parker, the Assistant District Attorney who 

tried the case, made during his deposition taken in the 

first state habeas hearing, should have been notice to me of 

the existence of a written statement from Evans. Parker's 

comment, at page 8 of the deposition, however, was not 

directly responsive to my question, and I thought he 

misunderstood my question. I do not believe I actually 

understood what he said in response to my question, and I 

rephrased the question to make certain that he understood 

me. When the deposition transcript became available to me 

for review, I already had Nick Dumich's letter reflecting 

his understanding that what we were dealing with was a 

complete copy of the prosecutor's file. It never occurred 

to me at this stage in the proceedings that there was a 

 



  

written statement from Offie Evans that the State had not 

produced. 

This oy of Qutb : 1987. 

Eo2sent 3H. Foun 
ROBERT H. STROUP 
  

Sworn to and subscribed before me, 

this SEL day oO 2 219817, 

  

Notary Public 
Motary Fublic, Gaorgia, State at Lzro 

My Commission Expues June 26 1588 
/ 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

-— mm em em wm ems wm em em em wm ws ws me em ow xX 

WARREN McCLESKEY, 

Petitioner, 
HABEAS CORPUS 

vs. $ NO. 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & 
Classification Center 

Respondent. 

oe em em ems em ws wm em em ems ea ws es em am w= X 

STATE OF NEW YORK ) 

COUNTY OF NEW YORK) po 

JOHN CHARLES BOGER, being duly sworn, states: 

T. oi an an associate counsel with the NAACP Legal Defense 

and Educational Fund, Inc., ("LDF") 99 Hudson Street, New York, New 

York 10013, and I am one of the attorneys for Warren McCleskey. I 

make this affidavit for submission to the United States District 

Court in this action. 

2. I was first employed by LDF in February of 1978. At that 

time, three attorneys at LDF handled capital punishment cases. 

Each of these attorneys had responsibility for all LDF cases in any 

one state. For example, one of the states assigned to me was 

Georgia; no other LDF staff attorney but myself had any substantial 

knowledge of, or familiarity with, the facts of particular Georgia 

capital cases. Sometimes LDF attorneys would informally discuss 

legal issues presented by the facts in each other's cases, but with 

 



  

rare exceptions, we did no independent factual investigation, 

transcript review, or other record analysis in those cases. 

Specifically, no other attorney associated with LDF, including Jack 

Greenberg, James Nabrit III, Joel Berger, Deborah Fins, James S. 

Liebman, Timothy K. Ford, or Anthony G. Amsterdam had any major 

responsibility for Mr. McCleskey's case until the 1983 evidentiary 

hearing in this Court. 

3. My own role in Georgia capital cases varied 

substantially. In some cases, I was actively involved with the 

client and I participated intensively in the investigation of 

claims, the drafting of pleadings and the conduct of hearings. In 

other cases, I was far more passive, serving principally as an 

advisor to my co-counsel. In the Warren McCleskey case, my role 

was very limited until the spring of 1983. I did no first-hand 

investigation and did not read the trial transcript, the trisi 

record, or the transcripts and depositions from the state habeas 

corpus proceedings. My co-counsel, Robert H. Stroup, drafted the 

certiorari petition on direct appeal, and all pleadings, memoranda 

and briefs filed in the state habeas corpus proceedings. I did not 

attend the state habeas hearing, and did not even meet Mr. 

McCleskey until August of 1983, during the federal hearing in this 

court. My participation in the case was limited to occasional 

telephone conversations with Mr. Stroup, during which I would 

comment on constitutional issues or related matters. 

4. Even when the McCleskey case reached this Court, my 

principal responsibility, and that of other LDF attorneys including 

 



  

Timothy Ford and Anthony Amsterdam, was limited to presentation of 

social scientific evidence on patterns of racial discrimination in 

capital sentencing. The first substantive document which I recall 

drafting for Mr. McCleskey was an affidavit by Professon David 

Baldus, filed in June of 1982, which reported upon his preliminary 

findings on Georgia capital sentencing. Throughout the subsequent 

proceedings in this Court -- the discovery, the federal hearings in 

August and October of 1983, and the post-hearing briefings -—- 1I 

left the investigation, evidentiary presentation and drafting 

responsibilities on all issues other than racial discrimination to 

Mr. Stroup. 

5. The division of responsibility I have described continued 

when Mr. McCleskey's case was appealed to the Court of Appeals. 

Mr. Stroup briefed and, to my best recollection, orally argued all 

issues except tices: involving ME. McCleskey's racial distrimi- 

nation claims. LDF lawyers, including Timothy Ford, Anthony 

Amsterdam and myself took the lead on the racial claims. lI did 

read the trial and state habeas corpus transcripts in preparation 

for oral argument in the Court of Appeals in June of 1984, and 

again in preparation for oral argument in the Supreme Court of the 

United States in October of 1986; however, since Mr. Stroup and I 

divided oral argument at the Court of Appeals, and since the 

Supreme Court limited its grant of certiorari to the racial claims, 

I did not focus intensively on Mr. McCleskey's other claims. 

LDF Knowledge of McCleskey's Henry and Mooney Claims 
  

6. In March of 1987, in anticipation of a decision from the 

3 

 



  

Supreme Court of the United States, I discussed with Mr. Stroup 

whether other constitutional claims might be available to Mr. 

McCleskey if the Supreme Court's decision were adverse. We both 

agreed that it would be useful to meet with Offie Evans, one of the 

State's chief witnesses against Mr. McCleskey, to learn whether he 

could provide further information amplifying upon his relationship 

with Detective Sidney Dorsey, which had been the basis for a 

constitutional claim asserted under Giglio v. United States, 405 
  

U.S. 150 (1972) in the first state and federal petitions. 

76 We learned in late March that Offie Evans was then 

incarcerated on another charge at the Ware Correctional Institution 

in Waycross, Georgia. I wrote to Mr. Evans, requesting an 

interview. (A copy of the letter is annexed as Exhibit A.) No 

response was forthcoming. Mr. Stroup then contacted correctional 

officials at: the Ware institution who informed him that Mr. Evans 

would be paroled to the Atlanta area on May 10, 1987. The 

officials indicated that we could talk with Mr. Evans if he would 

agree to see us. Our further attempts, however, to contact Mr. 

Evans through Ware counsellors and others were unsuccessful. 

8. Shortly after May 10th, Mr. Stroup attempted to make 

direct contact with Mr. Evans through his sister and other 

relatives living in the Atlanta area. Although the relatives were 

cordial, our efforts were unavailing. We next turned for 

assistance to a young black attorney, who made repeated efforts-- 

morning, noon and night -- to locate Mr. Evans at the homes of 

various relatives. Mr. Stroup and I then hired an experienced, 

 



  

highly recommended private detective -- a former FBI agent -- to 

locate Mr. Evans. 

9. Toward the end of May, acutely aware that time was of the 

essence, Mr. Stroup and I had a lengthy discussion of every 

possible avenue to reach Mr. Evans. Our discussion turned to 

alternative ways we might learn the details of the "promise" or 

"understanding" between Mr. Evans and Detective Dorsey. Bob Stroup 

reminded me that he had spoken to Detective Dorsey during state 

habeas proceedings without success. Neither of us could think of 

any other reasonable leads to follow. Mr. Stroup, however, did 

mention in passing a then-recent article in an Atlanta legal 

newspaper, describing current efforts by Atlanta pews media to 

obtain investigative files in the Wayne Williams case under the 

Georgia Open Records Act. We agreed that we might frame a request 

to an Atlanta dity Attorney Who was Fnown to Mr. Stroup, to see 

whether that avenue might be promising. 

10. Let me add that, in nine years of full-time litigation of 

capital cases, predominantly in Georgia, and extensive contacts 

with every major capital defense attorney in the State, I had never 

previously heard of the Georgia Open Records Act, much less of any 

prior attempts -- still less any successful attempts -- by any 

habeas applicants to use the Act to obtain police or prosecutorial 

files in an ongoing habeas case. Nevertheless, as set forth in 

greater detail in the contemporaneous affidavit of my colleague, 

Mr. Stroup, we pursued this avenue, because we had been 

unsuccessful in our efforts to obtain information through more 

 



  

conventional means. 

11. Mr. Stroup telephoned me on June 11, 1987 to report that 

he had just received from the City Attorney a 2l-page written 

statement that had apparently been given by O0ffie Evans on August 

}, 1978. At that time, although Mr. Stroup had only read part of 

the statement, he reported to me that it seemed substantially at 

variance with Evans' testimony at trial. As we began to discuss 

the statement, we began to reflect on the possible constitutional 

issues it might present. I requested Mr. Stroup to send me a copy 

by Federal Express, and I examined it over the June 13-15th 

weekend. Upon my return to New York on Tuesday, June 16th from a 

two-day meeting in Washington, D.C. on other matters, I immediately 

began work to prepare an amendment to our successive state habeas 

corpus petition -- which had been filed in the Superior Court of 

Butts Cotnty oa Tune 9, 1987 -— to assert new constitutional claims 

under United States v. Henry, 447 U.S. 264 (1980) and Mooney Vv.   
  

Holohan, 294 U.S. 103 (1935), predicated on the newly-discovered 

Evans statement. 

12. Prior to June 11th, I had no knowledge of the existence 

of the 21-page written statement by Offie Evans, or of any other 

written statement by Evans. Indeed, I was totally surprised to 

learn of the existence of the statement. Although, I was not 

primarily responsible for the non-racial issues during Mr. 

McCleskey's initial state and federal habeas corpus proceedings, my 

strong impression, drawn from the trial transcript and other 

relevant documents, was that Mr. Evans' communications with State 

 



  

officials prior to Mr. McCleskey's trial had been exclusively oral. 

Had I realized that Mr. Evans had in 1978 signed a written document 

allegedly recounting his conversations with Mr. McCleskey, I would 

have immediately fdvad to discover it under applicable state or 

federal procedures. 

i3. Aft no time prior to June 10, 1987, did any LDF lawyer or, 

to my knowledge, Mr. Stroup, ever suspect, surmise, or even 

contemplate the possibiity that the State had obtained a written 

statement from Offie Evans. 

14. Neither other LDF attorneys not I deliberately withheld 

or abandoned Mr. McCleskey's Henry and Mooney claims. Until June 

of 1987, we had had neither the evidence, nor the knowledge of the 

evidence, on which those claims are based. Nor, I respectfully 

submit, given the repeated State denials of access to that evidence 

(1) prior to trial, {11) durine ‘Mr. woC1esiey! 's cross-examination 

at trial, (iii) on direct appeal, and (iv), in State habeas 

proceedings, and given the State's lack of clear information even 

confirming the existence of the statement, could our ignorance be 

deemed "inexcusable neglect" within the meaning of Sanders v. 
  

United States, 373 U.S. 1 (1963) and Rule 9(b). 

2 Se "ad Bre 
“John Charles oe 

  

  
  

Subscribed and sworn to before me 

this Su day of July, 1987 

hah Crsii 
\_Notary Public 

JUDITH A. REED 

Notary Poe St ate. of New York - 

Gu ified i | Vosienes 2 ourity 

Comation Expires / YA — 

   



     
Apri] 8, 1987 2 

Mr. Ophie Evans EF-193230 3 i : : 

Ware Correctional Institution 5 - — £ - 

—~ Waycross, Georgia ~ 31501" : : Tx 2 

Dear Mr. Zosne: . 

= : I am .one of the attorneys for Warren McCleskey, 4n whose 
—trial, you may remember, you gave testimony in 1978. Warren's 

- . case is now pending in-the United States Supreme Court en an 
Tam “issue of racial discrimination. - We expect to hear from the Court 

in late April or early May of this vear. If we lose, Warren 
. faces imminent electrocution. 

My co-counsel and I are now. reviewing the case to see 1f we 

can identify any constitutional issues that may help us save 

Warren's life... In that connection, I would be very grateful for 

.. the opportunity to speak with you about the trial. I would be 
= willing to come to Waycross at your convenience if you will agree 

to see me. My purpose in seeing you, of course, would not be to 
put you under pressure but simply to learn more about what 
happened at the -trial. You are an important witness to’ those 
events, and what you tell us gould be very valuable. 

Thank you for ohsidering this: request. Enclosed is a“ 
‘stamped, self- addressed 2nyslope to assist you in replying | to. 

this letter.’ - 

Best ‘regards. ads 7 - . 

Sincerely, 

n Ciar Tes Sines    
Ean3IT oA 2, 

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LDF was toundec by the NAACP anc shares its commitment fo equal tights. LDF nas hac for over 25 years a separate Board. program, stafi. office and Bunge 

"NAACP LEGAL-DEFENSE AND EDUCATIONAL FUND, INC. - ~ 
88 Hudson Street, New York, N.Y. 10013 ¢°(212) 219-1900 - 

 



    

  

=n TO: = Jack Boger ; = TT = EEA 
eg NAACP Legal Defense Fund i sill mel LTS ho 

v " 89 Hudson Street | TL # SEE 

: New York, New York 10013 : ; a 

FROM: Ophie Evans ~~ © = 7 4 pep bd 

: = I would ym 2 fre a7 Fo - ; 

would not - 2 a = Sh 

be willing tc speak with you if you came to Ware Correction a 

: Institution. | = eT = oh = a mb Olen oy 

Ophie Evans g 

April _ -. , 108% : 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

Petitioner, 

CIVIL ACTION NO. 
  

Ve. 

HABEAS CORPUS 
RALPH KEMP, WARDEN, 28 U.S.C. 2254 

* 
oF
 

% 
F* 

¥ 
* 

¥ 
* 

F 

Respondent. 

BRIEF IN SUPPORT OF ANSWER/RESPONSE 
  

I. 

STATEMENT OF THE CASE 
  

On June 13, 1978, the grand jury of Pulton County, Georgia, 

returned a three count indictment against the Petitioner, 

Warren McCleskey, and his three co-indictees, David Burney, 

Bernard Depree and Ben Wright, Jr., charging said individuals 

with the offense of murder and with two counts of armed 

robbery. The Petitioner was tried separately beginning on 

October 9, 1978, and was found guilty on all three counts. The 

jury imposed the death penalty after a separate sentencing 

proceeding on the murder charge, finding that: (1) the offense 

of murder was committed while the Petitioner was engaged in the 

commission of another capital felony and (2) the offense of 

 



  

murder was committed against a peace officer, corrections 

employee or fireman while engaged in the performance of his 

official duties. See 0.C.G.A § 17-10-30(b)(2) and (b) (8). 

Consecutive life sentences were imposed on the two counts of 

armed robbery, 

The Petitioner then appealed his convictions and sentences 

to the Supreme Court of Georgia. On appeal to that Court, the 

Petitioner raised some ten grounds for relief including the 

following: (1) the application of the death penalty in the 

Petitioner's case was arbitrary and discriminatory based on the 

unfettered discretion of the prosecutor; (2) a post-indictment 

lineup was conducted without the knowledge or presence of 

counsel; (3) the in-court identification by Ms. Barnwell should 

have been suppressed; (4) the in-court identification by 

witness Ross should have been suppressed; (5) the in-court 

identification by witness Umberger should have been suppressed; 

(6) the in-court identification by witness Kiessling should 

have been suppressed; (7) the confession should have been 

suppressed as it was involuntary and made with the hope of 

benefit; (8) the prosecution failed to disclose all statements 

made by the Petitioher and withheld impeaching evidence (this 

allegation relates to the statement made to Offie Evans); (9) 

the prosecution failed to disclose impeaching evidence 

regarding Mamie Thomas; and (10) the trial court improperly 

 



  

admitted evidence of prior criminal acts. (Respondent's 

Exhibit No. 1) (References to numbered exhibits are to the 

exhibits submitted to the Superior Court of Butts County on the 

successive petition while lettered exhibits refer to the 

exhibits submitted to this Court.). The Supreme Court of 

Georgia affirmed the convictions and sentences and found all 

the above grounds to be without merit. McCleskey v. State, 245 
  

Ga. 108, 263 S.E.2d 146 (1980). The Petitioner subsequently 

filed a petition for a writ of certiorari to the Supreme Court 

of the United States asserting that the trial court improperly 

admitted evidence of other crimes, that the jury's discretion 

was not properly channelled and there was a deliberate 

withholding of the confession to Evans. Certiorari was denied 

by the Court. McCleskey v, Georgia, 449 U.S, 891 (1980). 
  

On January 5, 1981, the Petitioner filed a petition for 

habeas corpus relief in the Superior Court of Butts County, 

Georgia as Case No. 4909. The following allegations were 

raised in the original petition: the death penalty was 

arbitrarily, capriciously and whimsically applied; the death 

penalty was imposed pursuant to a pattern and practice of 

dlscrinibartonr thine were no theoretical justifications for 

the death penalty; the death sentence was cruel and unusual in 

the instant case; the Petitioner was not afforded adequate 

notice and an opportunity to present evidence; the trial jury 

was not a representative cross-section based upon the 

 



  

death-qualification of the jury; the jury was prosecution-prone 

based on the death-qualification of the jury; the trial court 

failed to adequately instruct jurors with scruples against the 

death penalty to subordinate their personal views; the 

introduction of the Petitioner's statement was improper as he 

was arrested without a valid warrant and without probable 

cause; the Petitioner's statements were involuntary; failure to 

disclose an "arrangement" with a police agent or informer 

(Offie Evans); deliberate withholding of the statement made by 

the Petitioner to Evans; failure to appoint experts, including 

an investigator to contact witnesses, and to allow the 

Petitioner to proceed in forma pauperis; displaying the 

Petitioner to certain witnesses pretrial; impermissible charge 

on the presumption of mental state; the assistant district 

attorney arguing at the sentencing phase relating to the 

reduction of a previous sentence; the admission of evidence of 

the Petitioner's participation in other robberies without 

instruction; the charge at the guilt-innocence phase regarding 

the use of independent crimes; challenge to the appellate 

review procedure; a challenge to the means of implementing the 

death penalty; ~ ineffective assistance of counsel. 

(Respondent's Exhibit No. 2). 

Petitioner subsequently filed an amendment to that petition 

in which he challenged the introduction into evidence of his 

statements to "an informer" and raised a challenge essentially 

 



  

to the sufficiency of the evidence. (Respondent's Exhibit No. 

3). A hearing was held by the court on January 30, 1980. By 

way of order dated April 8, 1981, the superior court denied 

habeas corpus relief. (Respondent's Exhibit No. 4). The 

Supreme Court of Georgia denied the subsequent application for 

a certificate of probable cause to appeal on June 7, 1981. A 

subsequent petition for a writ of certiorari was denied by the 

Supreme Court of the United States on November 30, 1981. 

On December 30, 1981, the Petitioner filed a petition for 

habeas corpus relief in the United States District Court for 

the Northern District of Georgia. - In the petition the 

Petitioner asserted the following as errors: (1) failure to 

disclose "understanding with witness Bvans: (2) trial court's 

failure to allow Petitioner to proceed in forma pauperis and to 

provide for expert witnesses and investigators; (3) improper 

charge on presumptions; (4) improper instructions regarding use 

of evidence of other criminal acts; (5) instructions at the 

sentencing phase giving the jury unlimited discretion regarding 

use of evidence of other crimes; (6) introduction of other 

criminal acts without proper safeguards; (7) death penalty is 

arbitrarily, capriciously and whimsically applied; (8) 

discrimination in the application of the death penalty; (9) 

death penalty fails to serve rational interests; (10) death 

penalty is cruel and unusual under the circumstances of this 

case; (11) inadequate appellate review; (12) prosecutor's 

 



  

argument during the sentencing phase regarding appellate 

processes; (13) admission of testimony regarding the "lineup" 

procedure; (14) instroduction of Petitioner's statement; (15) 

exclusion of two jurors for cause based on opposition to the 

death penalty; (16) ineffective assistance of counsel; (17) 

withholding of statements made to or by prosecution witnesses; 

and (18) sufficiency of the evidence. (Respondent's Exhibit A). 

Evidentiary hearings were held before the district court in 

August, 1983, and in October, 1983, An order was entered on 

February 1, 1984, in which the court rejected all the issues 

raised in the petition except for the alleged undisclosed deal 

with witness Evans. The court directed that habeas corpus 

relief be granted as to that issue and ordered that the 

conviction and sentence for malice murder be set aside, but 

affirmed the convictions for armed robbery. McCleskey v. Zant, 
  

508 PF. Supp. 338 (M.D.Ga. 1984), 

Both parties appealed the decision of the district court to 

the United States Court of Appeals for the Eleventh Circuit. 

On March 28, 1984, the Eleventh Circuit Court of Appeals 

directed that the case be heard initially by the court sitting 

en banc... On January 29,.1985, the en banc court issued an 

opinion which affirmed all convictions and sentences and 

considered the following issues: (1) Giglio claim; (2) 

ineffective asistance of counsel; (3) burden-shifting jury 

 



  

charge; (4) discrimination in the appllication of the death 

penalty; and (5) prosecution-prone jury.. McCleskey v. Kemp, 
  

753 F.24 877 {11th Cir, 1985) (en banc). 

The Petitioner then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. In that 

petition, the Petitioner asserted that the death penalty was 

discriminatorily applied, that there was a violation of Giglio 

v. United States, 405 U.S. 150 (1972), based upon the testimony 
  

of Offie Evans, that the charge on intent was impermissibly 

burden-shifting and that the jury was impermissibly qualified 

as to capital punishment. (Respondent's Exhibit E). The 

Supreme Court of the United States subsequently granted the 

petition for a writ of certiorari limited to the consideration 

of the application of the death penalty. On April 22, 1987, 

the Court issued an opinion concluding that the Petitioner had 

not shown discrimination in the imposition of the death penalty 

as to his case and affirmed the decision of the Eleventh 

Circuit Court of Appeals. On or about May 16, 1987, Petitioner 

filed a petition for rehearing by that Codrt, In that 

petition, Petitioner reasserted his claim of ineffective 

assistance of counsel at the sentencing phase, reasserted his 

claim related to the charge on intent and reasserted his claim 

relating to a violation of Giglio v. United States, asserting 
  

that the decision in United States v. Bagley, 474 U.S. y 105 
  

S.Ct. 3375 (1985), justified the granting of the petition. 

(Respondent's Exhibit F). On June 8, 1987, that Court denied 

the petition for rehearing. 

 



  

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

was filed in the Superior Court of Butts County, Georgia. That 

petition raised the following allegations: (1) the prosecutor 

discriminated in the use of peremptory strikes; (2) there was 

intentional discrimination in this case; (3) the state failed 

to disclose impeaching evidence (the alleged "deal" with Offie 

Evans); (4) the trial court erred in denying funds for a 

ballistics expert; and (5) the prosecutor improperly referred 

to appellate review in his argument at the sentencing phase. 

(Respondent's Exhibit G). On June 18, 1987, Respondent filed a 

motion to dismiss asserting that the petition was successive. 

(Respondent's Exhibit H). 

On June 22, 1987, the Respondent received the order of the 

district court dated June 16, 1987, making the mandate of the 

United States Court of Appeals for the Eleventh Circuit the 

judgment of the district court and lifting the stay of 

execution entered when the first federal habeas corpus petition 

was filed. 

Also on June 22, 1987, Petitioner filed a first amendment 

to case number 87-V=1028 in Butts County. In that petition the 

Petitioner raised two new allegations, that is, that Offie 

Evans was acting as an agent for the State at the time the 

Petitioner made statements to Evans and that the prosecutor 

failed to correct alleged misleading testimony by Evans. 

(Respondent's Exhibit I). 

 



  

On June 24, 1987, the Superior Court of Fulton County, 

Georgia entered an order scheduling a new execution time frame 

beginning at noon July 14, 1987. 

On June 26, 1987, Respondent filed supplemental responses 

to the amendment on June 29, 1987 (Respondent's Exhibits K and 

LL), and a hearing was held before the Superior Court of Butts 

County, sitting in Henry County. (Respondent's Exhibit 0). At 

that hearing, Petitioner filed a memorandum of law in 

opposition to the motion to dismiss. (Respondent's Exhibit M). 

On July 1, 1987, the state habeas corpus court entered an 

order granting Respondent's motion to dismiss finding that the 

issues were either barred from reconsideration under res 

judicata or could reasonably have been raised in the previous 

petition. (Respondent's Exhibit P). 

on July 2, 1987, Petitioner filed an Application for a 

certificate of probable cause to appeal in the Supreme Court of 

Georgia. (Respondent's Exhibit QO). On that same date 

Respondent filed a response in opposition. (Respondent's 

Exhibit BR). (As of the time of preparing the instant pleading 

the court has not ruled upon said application.) 

— 
> 

 



  

IT, 

ABUSE OF THE WRIT 
  

Respondent specifically pleads abuse of the writ in the 

instant action under Rule 9(b) of the Rules Governing Section 

2254 Cases. In reviewing the claims presented by the 

Petitioner, Respondent asserts that it is clear that the claims 

should not be considered by the court at this time. 

Although the courts have consistently recognized that the 

doctrine of res judicata is not applicable to federal habeas 

corpus proceedings, "Nevertheless, several authorities prevent 

the use of repetitive petitions for writ of habeas corpus by 

enforcing a modified doctrine of finality." Bass v. 

Wainwright, 675 F.24 1204, 1206 (llth Cir. 1982). See Sanders 
    

Vv. United States, 373 U.S. 1 (1963); 28 U.8.C §:2244: Rule 
  

9(b) of the Rules Governing § 2254 Cases. This is a uniform 

doctrine of finality under all of these authorities and was 

thoroughly explained in Sanders v. United States, supra. Rule 
  

9(b) sets forth the rule as follows: 

A second or successive petition may be 

dismissed if the judge finds that it 

fails to allege new or different 

grounds for relief and the prior 

determination was on the merits or, if 

new and different grounds are alleged, 

<10~ 

 



  

the judge finds that the 

failure of the petitioner to assert 

those grounds in a prior petition 

constituted an abuse of the writ. 

This rule essentially states the principles that have been 

judicially developed in the abuse of the writ doctrine "which 

require in part that known grounds for habeas relief be raised 

in one proceeding.” Thigpen v. Smith, 792 ¥».24 1507, 1512 
  

{1lth Cir. 1986), Initially, the state has the burden of 

pleading abuse of the writ. Price v. Johnston, 334 0.8, 266 
  

$1948), Potts v. Zant, 638 P.24-727, 757 (5th Cir.  197}). Once 
  

abuse of the writ has been pled, "the prisoner has the burden 

of answering that allegation and of proving that he has not 

abused the writ." Price v. Johnston, supra at 292, 
  

Once a particular abuse has been 

alleged, the prisoner has the burden of 

answering that allegation and of 

proving that he has not abused the 

writ. If the answer is inadequate, the 

court may dismiss the petition without 

further proceedings. But if there is a 

substantial conflict, a hearing may be 

necessary to determine the actual 

facts. Appropriate findings and 

conclusions of law can be made. In 

this way an adequate record may be 

£11- 

 



  

established so that appellate courts 

‘can determine the precise basis of the 

district court's action, which is often 

shrouded in ambiguity where a petition 

is dismissed without an expressed 

reason. And the prisoner is given a 

fair opportunity to meet all possible 

objections to the filing of his 

petition. 

In successive petition claims, there are two prongs in the 

abuse of the writ analysis. The first applies to a second or 

subsequent petition which alleges ho new grounds for relief. 

In these instances, once the state alleges an abuse of the 

writ, the burden is on the petitioner to rebut the state's 

contention by demonstrating that the decision was not on the 

merits or that the ends of justice would be served by 

reconsideration of the merits of the claim. The "ends of 

justice" have traditionally been defined by objective factors, 

"such as whether there was a full and fair hearing on the 

original petition~or whether there was an intervening change in 

the facts of the case or the applicable law." Witt wv. 

Wainwright, 755 P.28:1396, 1397 (llth Cir. 1985), "Thus, in 
  

this context, "the district court has the discretion to dismiss 

the petition if the prior petition was adjudicated on the 

=13- 

 



  

merits and the ends of justice would not be served by 

considering the merits again in the subsequent petition." Bass 

V. Wainwright, 675 F.24 1202, 1206 (11th Cir. 1982). In 
  

Sanders, supra, the Court acknowledged, "it is open to the 
  

applicant to show that the ends of justice would be served by 

permitting the redetermination of the ground." Xd. at 16, The 

Court in Sanders went on to note that if purely legal questions 

were involved, "the applicant may be entitled to a new hearing 

upon showing an intervening change of the law or some other 

justification for having failed to raise some crucial point or 

argument in the prior application.” Sanders, supra at 17. 
  

(Emphasis added). The Court did not indicate that a new 

hearing was automatically mandated upon a showing simply of an 

intervening change in the law. The Court specifically stated 

that this was not an exhaustive list of items to be included in 

the ends of justice analysis and "the burden is on the 

applicant to show that, although the ground of the new 

application was determined against him on the merits in a prior 

application, the ends of justice would be served by 

redetermination of the ground." Id, 

Recently in Kuhlmann v. Wilson, D.S. 2-106 S.Ct, 2616 
  

(1986), the Supreme Court of the United States considered the 

definition of the term "ends of justice." - A plurality of the 

z13- 

 



  

Court concluded that the ends of justice "require federal 

courts to entertain such petitions only where the prisoner 

supplements his constitutional claim with a colorable showing 

of factual innocence.” Id., 106 S.Ct. at 2627. The plurality 

adopted the standard to effectuate the clear intent of Congress 

that successive federal habeas review should be granted only in 

rare cases, but that it should be available when the ends of 

justice so require. Thus, the conclusion reached in the 

plurality opinion was that such a showing could be made "by 

establishing that under the probative evidence he has a 

colorable claim of factual innocence. The petitioner must make 

his evidentiary showing even though . . . the evidence of guilt 

may have been unlawfully admitted." Xd. Fven though only four 

justices joined this portion of the opinion, Justice Stevens in 

his dissent specifically noted the following: 

When a District Court is confronted 

with the question of whether the "ends 

of justice" would be served by 

entertaining a state prisoner's 

petition for habeas corpus raising a 

claim that has been rejected in a prior 

federal petition for the same relief, 

one of the facts that may properly be 

considered is whether the petitioner 

has advanced a "colorable claim of 

innocence." 

=14= 

 



  

Kuhlmann, supra, 106 8.Ct. at 2639 (Stevens, J., dissenting). 
  

The second prong of the abuse doctrine relates to 

successive petitions that allege new grounds that might have 

been alleged in a prior petition. Under this prong, once the 

government pleads abuse of the writ, the burden shifts to the 

petitioner to show that he has not abused the writ. "And the 

petitioner had to give a good reason for not having raised this 

claim previously." Allen v. Newsome, 795 F.2d 934, 939 (llth   

Cir. 1986). Specifically, a petitioner "must demonstrate the 

failure to present the ground in a prior proceeding was neither 

the result of an intentional abandonment or withholding nor the 

product of inexcusable neglect." Witt v. Wainwright, supra at 
  

1397; Funchess v. Wainwright, 788 F.2d 1443, 1445 {11th Cir. 
  

1986). 

The final resolution of the question of whether there has 

been an abuse of the writ is within the discretion of the 

district court. Even in Sanders, supra, the Court conluded the 
  

following: 

The principles governing both 

Justifications for a denial of a 

hearing en a successive application are 

addressed to the sound discretion of 

the federal trial judges. Theirs is 

the major responsibility for the just 

and sound administration of the federal 

=15~ 

 



  

collateral remedies, and theirs must be 

the judgment as to whether a second or 

successive application shall be denied 

without consideration of the merits. 

Id. at 18. This principle was even recognized by the 

dissenting justices in Kuhlmann v. Wilson, supra, in which 
  

Justice Brennan noticed, "the decision whether to hear a 

successive petition . . . is committed 'to the sound discretion 

of .the federal trial judges.'” 1d at 2631, 

The Eleventh Circuit Court of Appeals has also examined the 

purposes and policies behind the rule pertaining to abusive of 

petitions. "Pirst and foremost, the rule is designed to ease 

the burden placed on federal courts by the litigious habeas 

petitioners who file numerous requests for relief." Thigpen v. 
  

Smith, supra, 792 P.2d at 1513, The court also noted certain 
  

advantages of requiring the litigation of claims in one 

proceeding. "First, a court is able to provide a 'more focused 

and thorough' review of the claims presented if it has all the 

claims before it at one time." 14. 1513, By prohibiting 

piecemeal litigation, the federal system is enabled to 

"conserve judicial and parajudicial resources, in that the 

trial and appellate courts need familiarize themselves with a 

petitioner's case but once." Id. The court also recognized 

that the state had interests in the context of successive 

petitions. 

=16= 

 



  

4. 

presented in the instant petition, 

fully below, 

of the writ and should be dismissed under the above authority. 

Rule 9(b) also protects the State from 

expensive and time-consuming 

litigation. The Rule facilitates the 

presentation of evidence, for were it 

not enforced, the State would be 

required to preserve all relevant 

evidence until the time, after several 

possible petitions, on the claim to 

which that evidence relates is 

eventually raised. Of course, evidence 

is, by its nature, fragile and 

susceptible to disruption over time, as 

memory fades and witnesses die or 

become otherwise unavailable. 

at 1514. 

Respondent submits that reviewing all of the issues 

=17- 

  

as will be set forth more 

it is clear that the instant petition is an abuse



  

111. 

PROCEDURAL DEFAULT 
  

Respondent would also specifically assert procedural 

default as to those issues not raised prior to the second state 

habeas corpus petition. That is, Petitioner's allegation 

relating to the alleged failure to correct misleading 

statements of Offie Evans and the specific reference to the 

denial of counsel in relation to the testimony of Offie Evans. 

As these claims were not raised until the second state habeas 

corpus petition, they are the subject of a state procedural 

default under O0.C.G.A. § 9-14-51 and should be precluded from 

review at this time. See Morris v. Kemp, 809 F.24 1499, 1501 
  

{11th Cir. 1987), cert. denied, U.S. yr 107 8.Ct., 
  

(1987). Thus, Petitioner should be required to show cause and 

prejudice before this Court considers these claims even if this 

Court were to determine that the issues were not an abuse of 

the writ, 

=]18~ 

 



  

iv. 

ALLEGATIONS OF PETITION 
  

A. STATEMENT OF OFFIE EVANS. 

Petitioner raises three allegations relating to the 

statement and testimony of Offie Evans. Certain aspects of 

these claims have previously been raised in this Court and 

certain aspects have not been raised. Respondent asserts that 

all aspects of the claim either are an abuse of the writ or are 

the subject of a state procedural default. 

In support of all three allegations, Petitioner offers what 

he suggests to be new evidence in the form of two affidavits 

From trial jurors and a statement of Offie Gene Evans, AS 

these documents relate to all three claims, Respondent will 

address the availability or admissibility of these documents 

prior to addressing each individual claim. 

1. Juror Affidavits, 
  

Petitioner offers at this stage of the proceeding, as he 

did to the state habeas corpus court in the successive 

petition, affidavits from two trial jurors as his exhibits PF 

and G. The state habeas corpus courton considering the 

successive petition concluded they were not admissible evidence 

under state law, .See 0.C.G.A. § 9-10-9. Regpondent further 

submits that these affidavits are not admissible under federal 

219- 

 



  

ei 

law. The Eleventh Circuit Court of Appeals has recognized that 

post-decision statements by a judge or juror about the mental 

processes utilized in reaching a decision may not be used as 

evidence in a subsequent challenge to that decision. Proffitt 
  

y. Wainwright, 685 P.24 1227, 1255. (11th Cir. 1982). ‘In the 
  

instant case, Petitioner is offering these affidavits solely 

for the purpose of attempting to impeach the verdict of the 

jurors. As such, they are clearly inadmissible under both 

state and federal evidentiary law. Additionally, the 

affidavits contain statements that are sheer speculation on the 

part of the jurors. Any comments on what a juror might have 

done had such evidence been submitted to the jury is nothing 

more than speculation which is not admissible evidence. This 

does not fall within the category of a verdict which may have 

been tainted by the improper introduction of extrinsic evidence 

into the jury room, but is a case where the Petitioner seeks to 

determine what a juror might have done had additional evidence 

been presented. Under these circumstances Respondent submits 

that these affidavits are clearly inadmissible as evidence and 

should not be considered as "new facts" to justify 

reconsidering any -claims previously considered or considering 

any new claims on the merits. 

2 Statement of Offie Evans 
  

As Exhibit E, Petitioner submits a statement allegedly made 

by Offie Gene Evans to the police authorities involving the 

information provided to him by the Petitioner while in jail. 

=20~ 

 



  

Petitioner has asserted that he could not have obtained this 

statement previously and that it should be considered as "newly 

uncovered," "newly available" or "newly discovered" evidence 

depending on what part of the petition is being read. 

Respondent submits that the statement is none of the above and 

could readily have been obtained by the Petitioner at an 

earlier stage in the proceeding and does not constitute new 

facts to justify either reconsidering previously raised claims 

or allowing the Petitioner to raise new claims at this stage of 

the proceeding. 

Petitioner sought to establish in the second state habeas 

corpus proceeding that he was only recently entitled to receive 

this information based upon his interpretation of the Georgia 

Open Records Act and the decision of the Supreme Court of 

Georgia in Napper v. Georgia Television Company, No. 44381 (Ga. 
  

May 6, 1987). As found by the state habeas corpus court in the 

successive petition, this information has been availalble to 

the Petitioner under the Open Records Act based on prior case 

law of the Supreme Court of Georgia. The Open Records Act 

specifically provides, "All state, county, and municipal 

records, except those which by order of the court of this state 

or by law are prohibited from being open to inspection by the 

general public, shall be open for a personal inspection of any 

citizen of this state at a reasonable time and place; and those 

in charge of such records shall not refuse this privilege to 

any citizen." O0.C.G.A. § 50-18-70(a). In 1976, the Supreme 

=91= 

 



  

Court of Georgia examined a complaint under the Open Records 

Act in which a sheriff refused to allow representatives of 

local newspapers to inspect files the sheriff maintained 

relating to deaths of inmates under his supervision. Houston 

Vo. Rutledge, 237 Ga. 764, 229 8. F,28 624 (1976). The court 
  

concluded that while the General Assembly did not intend that 

all records of law enforcement officers and officials be opened 

for inspection by citizens of this state as soon as the report 

was prepared, "once an investigation is concluded and the file 

is closed, either with or without prosecution by the state, 

such public records in most instances should be available for 

public inspection.” Houston v. Rutledge, supra, 237 Ga, at 
  

765. The court specifically emphasized that "public records 

prepared and maintained in a concluded investigation of alleged 

or actual criminal activity should be available for public 

inspection.” ‘14. at 765-6. See glso Brown v. Minter, 243 Ca. 
  

397,.254 S.R.24 326::(1979), 

In the decision of the Supreme Court of Georgia in Napper 

Vv. Georgia Television Company, supra, the court did no more 
  

than reconsider certain exemptions to the statute and again 

reiterated the standard previously announced. In that case, 

the city attorney's office had sought to have another exemption 

created prohibiting the disclosure of records which were the 

subject of collateral proceedings. This exemption has never 

been set forth in the statute or by case law. In fact, the 

297. 

 



  

superior court judge hearing the case ruled adversely to the 

city and required disclosure under the statute as it existed at 

the time. The Supreme Court of Georgia affirmed the decision 

concluding that there was no such exemption, relying on its 

prior holding in Houston v. Rutledge, supra and Harris v. Cox 
  

  

Enterprises, ‘ne., 256 Ga. 299, 398 S.BE,.2d 448 (1986). Thus, 
  

Respondent submits that, as found by the second state habeas 

corpus court, under the Open Records Act the Petitioner had the 

right to certainly request this information at the time his 

conviction became final, that is, at the conclusion of the 

direct appeal and petition for a writ of certiorari. The fact 

that Petitioner simply failed to make his Open Records Act 

request until as late as May, 1987, does not excuse the 

Petitioner from requesting this information when he certainly 

could have made the request previously. 

The Petitioner has attempted to excuse his failure to 

previously request this statement by claiming that he did not 

know there was a "written" statement by Evans and asserts that 

he did not have any knowledge of such a statement until June 

10, 1987. A review of the record clearly shows that counsel, 

by the enorcise~of sivple common sense, should have been aware 

of such a statement. 

Prior to trial, the court conducted an in-camera inspection 

of certain unspecified material, noting "the court finds that 

although the documents might become material for rebuttal at 

trial, they are not now subject to discovery." : (T.R. 46). 

-23- 

 



  

(Respondent's Exhibit No. 6 to the successive state habeas 

corpus petition). This clearly indicated that counsel was free 

to renew the request at or during trial. Petitioner has sought 

to establish that he made a written motion for such statements 

prior to trial by his Exhibit M. Respondent assumes that this 

is the same exhibit submitted to the second state habeas corpus 

court. That court specifically declined to admit that document 

noting that it had not been signed, stamped filed and there was 

no indication that it had ever been filed at any proceeding in 

Fulton County. Counsel for the Respondent stated to the court 

that a review of the official record on file with the Supreme 

Court of Georgia did not reflect such a document had been 

filed. Petitioner has as yet to eStablish that any such 

document has been filed. 

At trial, Petitioner testified in his own behalf and denied 

being present at the crime. During cross-examination, the 

district attorney specifically questioned the Petitioner as to 

whether he had a girlfriend, whether she had taken part in any 

Of the robberies, and other facts. The assistant district 

attorney asked the Petitioner if he had ever made the comment 

that Mary Jenkins made up his face for the robbery. (T, 828), 

The Petitioner specifically testified that he had never talked 

to any of Ben Wright's relatives in jail, thus specifically 

denying that Evans ever told him he was a relative of Ben 

Wright. (T. 829). During cross-examination, objection was 

=24-. 

 



  

made by counsel for the Petitioner indicating that to the 

trial court that counsel had asked for all statements of the 

Petitioner. The court stated "he has a statement that was 

Zurnished to the Court but it doesn't help vour client." (TP. 

830). Cross-examination of the Petitioner then continued. The 

Petitioner consistently denied making any admissions or 

incriminatory statements while at the jail, although he 

admitted having conversations with Bernard Dupree. Petitioner 

specifically denied that he ever killed anyone. (It should be 

noted that while Offie Evans' name was on the witness list 

furnished to defense counsel, defense counsel did not talk with 

Evans prior to the trial apparently based largely on the fact 

that Petitioner told him that he made no incriminatory 

statements while in jail). 

Subsequently, as a part of the rebuttal case only, the 

state presented the testimony of Deputy Hamilton from the 

Falton County Jail, Deputy Hamilton testified as to the 

location of the Petitioner while he was incarcerated in jail 

and testified that Offie Evans came to him with some 

information. (T.: 861). 

Evans was then called to testify on behalf of the state. 

During his testimony, Evans elaborated in great detail on his 

own prior convictions, on his pending escape charge from a 

federal halfway house and his opinion that he would not 

actually be charged with the escape. He then testified 

=o 5 

 



  

concerning his conversations with the Petitioner while in the 

jail at Fulton County. He testified he did have conversation, 

with the Petitioner concerning the crime, but did not 

specifically testify as to who initiated the conversations. In 

fact, he simply testified that they had several conversations. 

(T. 869-70). Petitioner's counsel thoroughly cross-examined 

Evans concerning his criminal rcord and what took place at the 

jail, Counsel for the Petitioner did not request a copy of 

Evans' statement at that time in spite of the notification by 

the trial court in the pretrial order that such a motion could 

be made at a subseguent time. Purther, prior to the testimony 

Of the next witness, the trial court instructed the jury that 

all evidence submitted by the state since the defendant had 

testified was solely for the purpose of impeachment and no 

other purpose. (PT. 885). Thus, the jury was fully advised 

that the testimony of Offie Evans was to be used only for the 

limited purpose of impeachment of the testimony of the 

Petitioner. 

On direct appeal counsel the Petitioner raised an 

allegation relating to the failure to disclose statements of 

the Petitioner and the alleged withholding of impeaching 

evidence. In the brief counsel stated, "Offie Gene Evans’ 

statement contains substantial impeachment value." 

(Respondent's Exhibit No. 1 submitted to the second state 

habeas corpus court). In the opinion on direct appeal the 

=26- 

 



  

court held, "The prosecutor showed the defense counsel his 

file, but 4id not furnish this witness' [Evans] statement." 

McCleskey v. State, supra, 245 Ga. at 112, This makes it 
  

Clear that there was a statement of Evans consisting of his 

conversations with the Petitioner. 

Purther, present counsel for the Petitioner has certainly 

known of the existence of the statement by Offie Evans at least 

since the time counsel read the trial transcript as well as 

from the date of the first state habeas corpus proceeding. At 

the hearing before the state habeas corpus court in the first 

proceeding, John Turner, Petitioner's trial counsel, testified 

that he did not have Evans' statement before trial. Further, 

Offie Evans testified before the habeas corpus court. Counsel 

for the Petitioner apparently did not attempt to acquire the 

statement directly either prior to or subsequent to the 

evidentiary hearing before that court. Further, counsel took 

the deposition of the assistant district attorney, Russell 

Parker, and although the statement is clearly mentioned in Mr. 

Parker's deposition, counsel did not seek to obtain the 

statement at that time either by subpoena or requesting it 

under the Open Records Act. In fact, Mr. Parker specifically 

testified, "Offie Evans gave his statement but it was not 

introduced at trial. It was part of the matter that was made 

in-camera inspection (sic) by the judge prior to trial.” 

i 

 



  

(Parker deposition at 8). This certainly advised counsel that 

there was a written statement as the court cannot make an 

in-camera inspection of an oral statement. 

Petitioner has asserted that he was led to believe he had 

been given the prosecutor's entire file at the state habeas 

corpus proceeding. A review of the deposition of the assistant 

district attorney shows he obviously gave counsel the entire 

£ile that was made available to the defense prior to trial. As 
  

  

Mr. Parker specifically testified about a statement of Offije 

Evans, it would have taken only a brief review of the file 

provided to ascertain whether that statement was in fact 

present. Counsel asserts now that he relied on a letter 

submitted by an assistant attorney®general to a court reporter 

referring to the complete prosecutor's file. This letter is no 

more than a letter advising a court reporter that no further 

material will be forthcoming and that the deposition was 

complete with a courtesy copy of the letter being sent to 

counsel. It certainly was not any type of representation to 

counsel that there was no further information to be obtained. 

Additionally, when Petitioner filed the first federal 

habeas corpus petition in this Court, Petitioner set forth his 

claim Q relating to alleged statements wrongfully withheld. In 

so doing, Petitioner made the following averments in paragraph 

90: 

-28- 

 



  

Prior to trial, petitioner sought 

through a Brady motion statements of 

witnesses material to the prosecution 

Of the case. The State withheld from 

petitioner the statement of two 

witnesses —-- one alleged confession of 

the defendant allegedly made to a jail 

inmate and the other an impeaching 

statement made by one of the 

prosecution witnesses. 

First Federal habeas corpus petition at 21. This also 

indicates an assumption that there was some sort of statement 

evidencing Offie Evans relaying information to the police 

authorities. Certainly, if the authorities had a statement of 

the Petitioner, other than Petitioner's actual confession, it 

would have to be in the form of a statement from Offie Evans as 

this would have been the only way for authorities to have any 

such statement. 

A review of the above shows that counsel is clearly guilty 

of inexcusable neglect in failing to have at least pursued 

various avenues-open to him to obtain the statement in an 

earlier stage of the proceeding. Thus, this statement in 

itself is insufficient to justify either reconsidering any of 

the claims previously raised or consideration of any new claims. 

=3 0 

 



  

Petitioner has also asserted that this statement was 

information within the knowledge of the district attorney and 

essentially asserts he should not have been required to request 

the information or be held to that burden. 1n the instant 

case, the statement of Offie Evans was clearly not exclusively 

within the knowledge of the district attorney and was certainly 

discoverable by the Petitioner prior to his first state habeas 

corpus proceeding had he simply pursued the Open Records Act 

avenue at that time. Further, there were clearly indications 

throughout the record of this case that there was some type of 

statement by Evans or at least some written document 

formalizing the information obtained from the Petitioner by 

Offie Evans. This is information that was certainly 

discoverable and obtainable prior to this late date of the 

proceedings. 

3. Agent or Informant Witness 
  

Petitioner asserts that the state used incriminatory 

statements made by the Petitioner to someone allegedly acting 

on behalf of the state, i.e., Offie Evans. Petitioner asserts 

that the above-mentioned statement of Evans is "newly uncovered 

evidence" which justifies reconsideration of this claim. 

Petitioner further makes a bald allegation that the state 

possesses additional evidence without making any proffer as to 

the nature of the evidence or who might have such evidence or 

to what issue the evidence might relate. Petitioner thus 

~30~ 

 



  

submits that there is a violation of his right to counsel under 

Massiah v. United States, 377 U.S. 201 (1964); United States v. 
    

  Henry, 447 U.S. 264 (1980); Maine v. Moulton, U.S. pt 

106s, Ct. 477 (1985); Kuhlmann v,. Wilson, U.S, y. 106 
  

S.Ct. 2616 (1986). Respondent submits that this issue is 

clearly an abuse of the writ and that Petitioner has failed to 

even allege an excuse for having failed to raise this claim 

previously. 

The state habeas corpus court initially concluded that this 

allegation was only a variation of the previously raised 

allegation of an "arrangement" between Mr. Evans and the State, 

citing paragraph 21 of the first state habeas corpus petition. 

The second state habeas corpus court concluded that there was 

nothing to support the allegation of "newly uncovered evidence" 

of an arrangement and that the claim was barred by the doctrine 

Of res judicata. Respondent submits that insofar as this claim 

actually asserts there was an agency arrangement prior to the 

time that the statements were made, this claim had never been 

raised prior to the second state habeas corpus proceeding and 

thus is the subject of a state procedural default and should 

not be considered Absent a showing of cause and prejudice. See 

Morris v. Kemp, Supra. 
  

Petitioner's only assertion at this time for failing to 

have raised this claim sooner are the previously noted 

complaints that he did not know there was a written statement 

-31= 

 



  

of Evans and could not reasonably have obtained such 

statement. Respondent has previously shown to the court that 

an exercise of common sense from a review of the record would 

have shown that there was some sort of written statement by Mr. 

Evans and that by simply exercising the same method counsel 

exercised approximately a month ago, he could have obtained 

this statement prior to the filing of the first state habeas 

corpus petition. 1t is Petitioner's burden at this stage of 

the proceeding to show that he is not guilty of inexcusable 

neglect or deliberate withholding of the claim. Respondent 

submits that the excuse proffered by the Petitioner does not 

carry the burden of proof on this point. Thus, this Court 

should conclude that the Petitioner is guilty of inexcusable 

neglect and that this issue 1s an abuse of the writ. 

4. Misleading Statements of Evans 
  

As a corollary to the above allegation, the Petitioner also 

asserts that the state failed to correct alleged misleading 

statements by Offie Evans. This is again based on the 

so-called newly uncovered statement of Evans. As noted 

previously, had any efforts been made timely, the statement 

could have been ohboined prior to the first state habeas corpus 

proceeding for litigation at that time. Purther, this 

allegation is clearly the basis for a state procedural 

default. The state habeas corpus court in the second 

proceeding found no valid reason why the Petitioner could not 

32 

 



  

have obtained the statement earlier and found that the 

Petitioner "could have reasonably raised this claim 

previously." Second state habeas corpus order at 14. Thus, 

even if this court were not to find this claim to be an abuse 

4 of the writ, it is the subject of a state procedural default 

requiring the showing of cause and prejudice before this Court 

can consider this claim on the merits. 

Again, the only evidence in support of this claim and in 

support of. his showing that he has not abused the writ is the 

statement of Evans. As noted previously, the statement could 

have readily been obtained and Petitioner's assertion of excuse 

does not amount to the proof required to show that he has not 

abused the writ and he is not SellLy of inexcusable neglect. 

Had counsel for the Petitioner made some minimal effort to 

obtain this statement at the proper time, said statement could 

have been presented to the first state habeas corpus court for 

litigation and the matter could have been pursued in a timely 

i fashion. As the Petitioner has not carried his burden of 

proof, Respondent submits that this Court Should decline to 

consider this issue at this time. 

4 — 
~ 

Be Giglio Claim. 
  

Finally, Petitioner reasserts a claim previously litigated 

adversely to him, that is, that there was some type of 

agreement between the state and Offie Evans in exchange for 

Evans testifying at trial. Petitioner simply asserts that 

33 

 



  

! 
§ 

D
a
 

there were promises made, citing to the first state habeas 

corpus hearing where Evans testified that the detective said he 

would speak a word for Evans and again referring to the 

affidavits of the two jurors. As was noted previously, the 

affidavits of the jurors are simply inadmissible as evidence. 

Although Petitioner notes in his request for discovery at this 

stage that the detective mentioned by Offie Evans is one whose 

deposition the Petitioner wishes to take , it is Clear that 

Petitioner could have done so at the time of the first state 

habeas corpus proceeding when the subject was mentioned by 

Evans during that hearing. 

Petitioner further asserts that constitutional principles 

in relation to this claim have Peon clarified which would 

justify reconsidering this issue. Respondent submits that 

Petitioner has failed to show that the ends of justice require 

reconsideration of the claim thoroughly litigated in a prior 

proceeding. 

Althouch this Court originally granted relief on the Giglio 

issue, the Eleventh Circuit Court of Appeals sitting en banc 

declined to grant relief and found the allegation to be without 

— 

merit. In lts opinion, the court relied upon Giglio v. United 
  

States, 405 U.S. 150.{1972), and held , "the detective's 

promised to speak a word falls far short of the understanding 

=34- 

 



  

reached in Giglio and Napue." McCleskey v. Kemp, supra, 753 
  

F.24 at 884, The court went on to note, "The detective's 

statement offered such a marginal benefit, as indicated by 

Evans, that it is doubtful it would motivate a reluctant 

witness or that disclosure of the statement would have had any 

effect on his:-credibility." Id. The en banc court thus 

declined to find any due process violation. The court then 

went on with its analysis to determine whether, even if there 

had been a due process violation, it would be harmless. The 

court found the following: 

In any event, there is no "reasonable 

likelihood" that the State's failue to 

disclose the detective's cryptic 

statement or Evans' different escape 

scenario affected the judgment of the 

dnry . . «Evan's credibility was 

exposed to substantial impeachment even 

without the detective's statement and 

the inconsistent description of his 

escape. The prosecutor began his 

direct examination by having Evans 

recite a litany of past convictions. 

Evans admitted to convictions for 

forgery, two burglaries, larcenies, 

carrying a concealed weapon, and theft 

35. 

 



  

from the United States mail. On cross 

examination, McCleskey's attorney 

attempted to portray Evans as a 

"professional criminal”. Evans also 

admitted that he was testifying to 

protect himself and one of McCleskey's 

codefendants. In light of this 

substantial impeachment evidence, we 

find it unlikely that the undisclosed 

information would have affected the 

jury's assessment of Evans credibility. 

I8. The court went on to conclude that although the testimony 

of Evans added weight to the Prossoution's case, the court did 

not find that it "could 'in any reasonable likelihood have an 

effect on the judgment'"., Id. at 885, quoting Giglio, supra at 
  

154. The court further concluded, "Although Evans testimony 

might well be regarded as important in certain respects, the 

corroboration of that testimony was such that the revelation of 

the Giglio promise would not reasonably affect the jury's 

assessment of his credibility and therefore would have no 

effect on the jury's decision, McCleskey v,. Kemp, supra at 
  

885, 

In United States v. Bagley, supra, the Court reiterated its 
  

prior holding regarding the disclosure of exculpatory impeachng 

evidence. The Court noted that the error in that case, if 

36 

 



  

4 
: 

there were any, was the failure to assist the defense by 

disclosing information that might have been helpful in 

conducting cross-examination. The Court noted that this 

alleged suppression would be a constitutional violation only if 

it deprived the defendant of a fair trial and this would be 

found only if the evidence was material "in the sense that its 

suppression undermined confidence in the outcome of the 

trial." 1d4., 105 S.Ct. at 3381, The. Court derived the 

standard from previous cases of the Court noting , "The 

evidence is material only if there is a reasonable probability 

that, had the evidence been disclosed to the defense, the 

results of the proceeding would have been different. A 

'reasonable probabililty' is a srobebliiey sufficient to 

undermine confidence in the outcome.” Id. at 3384. The 

Petitioner has himself acknowledged; his pleadings in the state 

court that this standard, if it is different from the prior 

standard, is in Eact one which is more difficult for him: to 

meet rather than being an easier standard. Thus, this hardly 

justifies reconsidering this claim under the ends of justice 

analysis. 

In fact, the two Eleventh Circuit Cases cited by the 

Petitioner as new law actually cite to the en banc decision in 

McCleskey v. Kemp, supra with approval. In Brown Vv. 
    

Wainwright, supra, the court noted that the case in Brown did 
  

not involve mere nondisclosure under those circumstances but a 

237 

 



  

knowing introduction of false testimony and an exploitation 

thereof. "The appropriate standard is that of Giglio and 

Bagley brought forward in our en bane decision in McClegkey Vv, 
  

Kenn, 753 .PFP.24 877, 885 (11th Cir. 1985) (en banc)." 1d. at 

1464. Brown thus specifically acknowledges the continuing 

validity of the decision in McCleskey, Further, in Haber v, 
    

Wainwright, the court again cited to McCleskey and the holding   
  

in McCleskey that any error was harmless. Thus, neither one of   

these cases even implicates the validity of the decision in 

McCleskey v. Kemp and certainly does not constitute new law in 
  

relation to the facts of this case. Respondent would further 

note that the Petitioner himself sought to have the Supreme 

Court of the United State rehear this allegation asserting that 

Bagley was new law at that time and the United States Supreme 

Court declined to grant a rehearing. 

Petitioner's only other assertions relating to any of these 

allegations are assertions that certain witnesses might testify 

in more detail at this time or he could present the testimony 

of other witnesses. Petitioner has not actually proffered any 

facts that any witnesses would testify to at this stage of the 

proceeding which were not testified to earlier nor has 

Petitioner made any showing as to why he could not have had 

these witnesses testify at earlier stages of the proceeding. 

Petitioner has had ample opportunity to question Offie Evans as 

well as the assistant district attorney and certainly could 

—38~ 

 



  

have taken depositions of the detectives at the state habeas 

corpus proceeding had he desired to do so. Thus, this 

allegation is clearly a classic example of an abuse of the writ 

and Petitioner has failed to show that the ends of justice 

require reconsideration of this claim. 

Although Petitioner has asserted that the ends of justice 

are served because he is "is actually innocent" of malice 

murder, Respondent submits that this is not the colorable 

showing of factual innocence suggested by the plurarity opinion 

in Kuhlmann v. Wilson, supra and the dissenting opinion of 
  

Justice Stevens in that case. In fact, the assertion by the 

Petitioner in this case is not that he is actually innocent of 

the malice murder but that Offie sale! testimony could have 

been impeached and thus maybe not believed by the jury. This 

is not a basis for factual innocence, as Kuhlmann itself noted   

that even improperly admitted evidence would be considered in 

determining the factual inquiry. Petitioner has presented no 

more of a showing that he is factually innocent than he has 

previously made. | 

Therefore, Respondent submits that the instant allegation 

Clearly is an abuse of the writ and should not be reconsidered 

by this Court as this time. 

-39- 

 



  

| 
1 

B. PROSECUTOR'S CLCSING ARGUMENT. 

Petitioner asserts that the prosecutor deliberately 

referred to appellate review in his closing argument in the 

sentencing phase. Petitioner claims that the prosecutor 

referred to the Petitioner having previously received three 

life sentences on other charges which had been reduced and that 

the prosecutor asserted that perhaps the reduction had occurred 

on appellate review. Petitioner has asserted that this 

allegedly directed the jury's attention to the fact that 

Petitioner had previously received sentences that had been 

reduced on appeal and that the argument somehow affected the 

jury's deliberation as to the sentencing. Petitioner asserts 

that the court should reconsider this claim based upon the 

decision in Caldwell v. Mississippi, supra. 
  

This allegation was raised and decided adversely to the 

Petitioner in his state habeas corpus petition. In deciding 

the issue, the state habeas corpus court relied upon then Ga. 

Code Ann. § 27-2206 which prohibited counsel from arguing that 

a defendant, if convicted, might not be required to suffer the 

full penalty due to the possibility of clemency. The court 

also cited the decision of the Supreme Court of Georgia in 

Prevatte v, State, 233 Ga, 929(6), 214 S.E.28 365 (1975)... The   

state habeas corpus court concluded that the use of the words 

"appellate process" was in reference to a prior life sentence, 

not to the possibility that a life sentence could be reduced if 

=40- 

 



  

the jury decided to impose such a sentence in the instant case, 

thus, the court concluded that it could not find that the words 

"had the inevitable effect of encouraging the jury to attach 

diminished consequence to their verdict and take less than full 

responsibility for their determining life or death, . ... " 

First state habeas corpus order at 13. As Respondent has 

pointed out to the state habeas corpus court in the successive 

proceeding, the standard utilized in the first state proceeding 

is essentially the same standard set forth in Caldwell v. 
  

Mississippi. In fact, the same standard has been in effect in   

the state of Georgia since 1848. Furthermore, Caldwell itself   

recognized the type of argument in question in that case had 

been condemned since Furman Vv. Georgia, 408 U.S, 238 (1972). 
  

"It is therefore not surprising that legal authorities almost 

uniformly have condemned the sort of argument offered by the 

prosecutor here. For example, this has been the view of almost 

all the state supreme courts that have dealt with this question 

  

since Purman v., Georgia, 408 v.5. 238, 92 s.Ct., 2726, 33 

L.EA.24 346 (1972). caldwell, supra, 105 S.Ct. at 2642, ‘In a   

footnote, the Court in support of this position referred to two 

Georgia cases, Hawes v. State, 240 Ga. 327, 333, 240 sS.E.2d 
  

833, 839 (1977) and Fleming v. State, 240 Ga, 142, 146, 240 
  

S.E.24 37, 40 (1977) both of which specifically rely on 

Prevatte, supra. 
  

—4ql- 

 



  

Petitioner also raised this claim.in his first federal 

habeas corpus proceeding in this Court as claim L. This Court 

specifically concluded the following: 

The prosecutor's argument in this case 

did not intimate to the Jury that a 

death sentence could be reviewed or set 

aside on appeal. Rather, the 

prosecutor's argument referred to 

Petitioner's prior criminal record and 

sentences he had received. The court 

cannot find that such arguments had an 

effect of diminshing the jury's 

responsibility for its deliberation on 

Petitioner's sentence. Insofar as 

Petitioner claim the prosecutor's 

argument, were impermissible because 

they had such an effect, the claim is 

without merit. 

McCleskey v. Zant, supra at 388. Respondent submits that this 
  

is the identical holding applied in Caldwell, supra. 1n 
  

Caldwell, the Court held, "lt is congtitutinally impermissible 
  

to rest a death sentence on a determination made by a sentencer 

who has been led to believe that the responsibility for 

determining the appropriateness of the defendant's death rests 

elsewhere." 1d., 105. 8.Ct. at 39. Thus, regardless of whether 

=42- 

 



  

y 
: 

Caldwell establishes a new constitutional ruling, this Court   

applied the same standard in considering this claim in the 

first federal habeas corpus petition. 

Respondent submits that the Petitioner has failed to show 

that the ends of justice require reconsideration of this claim 

at this stage of the proceeding. First of all, a factor to be 

considered by this Court in the evaluation 1s the fact that the 

Petitioner failed to pursue this claim on direct appeal to the 

Eleventh Circuit Court of Appeals after resolution issued by 

this Court. Additionally, Respondent submits that this Court 

correctly applied the same standard as in Caldwell, supra, in 
  

the first federal petition, therefore, the ends of justice do 

not require reconsideration of the issue. While the Eleventh 

Circuit Court of Appeals has held that Caldwell represents a 
  

significant change in the law sufficient to excuse failure to 

raise such a claim in a federal proceeding, see Adams Vv. 
  

Wainwright, 804 F.2d 1526 (11th Cir. .l1986), the same principles   

do not apply when the issue has been raised previously and 

decided based upon the same standard as that enunciated in 

Caldwell. Under the circumstances of the instant case, the   

ends of justice simply do not require reconsideration of this 

issue. 

L433 

 



  

1 
1 

Ce SYSTEMATIC EXCLUSION OF BLACK 

JURORS BY PEREMPTORY STRIKES. 

Petitioner asserts that the prosector used peremptory 

strikes to systematically exclude black jurors at trial. It is 

conceded that this issue has never previously been raised, and 

Petitioner seeks to excuse that failure by citing to the 

holding in Batson v. Kentucky, J.S. y 106. 5.Ct,71712 
  

(1986), as alleged new law. Respondent submits that Petitioner 

certainly could have previously challenged the prosecutor's use 

of peremptory strikes under the existing standard at that time 

of Swain v, Alabama, 380 U.S. 202 (1965), and further asserts 
  

that Batson v. Kentucky does not apply fo the instant case, 
  

thus rendering the allegation an abuse of the writ. 

In order for an allegation of new law to justify 

consideration of a claim not previously raised, the Petitioner 

must first show that his failure to raise the claim was not due 

to inexcusable neglect or deliberate withholding. It also must 

be shown that the so-called new law is applicable to the facts 

and circumstances of the case. Respondent submits that as 

Batson v. Kentucky is simply inapplicable to the circumstances 
  

of this case, the instant allegation fails to state a claim 

upon which relief can be granted by this Court. 

Respondent submits that Batson v. Kentucky did not create a 
  

new constitutional right, but simply changed the standard to be 

applied in determining if there had been a violation of the 

44 

 



  

! 

Equal Protection clause. Furthermore, the Supreme Court of the 

United States specifically held that Batson v. Kentucky is not 
  

retroactive in collateral proceeding "where the judgment of 

conviction was rendered, the availability of appeal exhausted, 

and the time for petition for certiorari had elapsed." Allen 

v., Hardy, U.S. 106 S.Ct .- 2878, 2880 n.1:11986), 
  

Petitioner has asserted that Batson should be applied 

retroactively as this is a death penalty case. The Eleventh 

Circuit Court of Appeals has specifically declined to apply 

Batson v. Kentucky retroactively to a death penalty case. See 
  

High v. Kemp, No. 85-8989 (llth Cir. June 4, 1987). 1In order 
  

to apply Batson, this Court would be in the position of 

ignoring precedent in the Eleventh Circuit Court of Appeals as 

well as in the Supreme Court of the United States. The mere 

fact that the Supreme Court of the United States in Allen v. 
  

Hardy was not addressing a capital case does not serve as 

sufficient basis for concluding that the Court intended any 

different standard to be applied in capital cases. Thus, 

Respondent submits that the instant claim clearly fails to 

state any basis upon which relief can be granted and, as such, 

certainly constitutes an abuse of the writ. 

Respondent also asserts that the instant claim is the 

subject of a state procedural default requiring the showing of 

cause and prejudice before considering the claim, even if the 

issue were not an abuse of the writ. 

=45- 

 



  

§ 
: 

D. INTENTIONAL DISCRIMINATION 

Petitioner asserts now that there had been intentional 

racial discrimination in the imposition of the death penalty in 

his case. This is essentially the same allegation as that 

relied upon in his prior federal habeas corpus proceeding which 

was the basis for the decision of the Supreme Court of the 

United States in this case. McCleskey v. Kemp, U.s5. ' 
  

107 s.ct. 1756 (1987), Petitioner asserts before this Court, 

as he did in his successive state habeas corpus proceeding, 

that McCleskey v. Kemp, supra, constitute new law requiring him 
  

now to prove intentional discrimination in his case and that he 

should be allowed to attempt to meet this burden. The only new 

facts offered in support of this claim are the prosecutor's use 

of peremptory strikes. 

Respondent submits that the Supreme Court of the United 

States, as well as the Eleventh Circuit Court of Appeals and 

this Court, did no more than affirm equal protection cases 

which have always required a showing of intentional and 

purposeful discrimination. In fact Respondent has consistently 

asserted throughout the proceedings in this case that 

intentional discrimination must be shown in the individual 

case. Purther, although cases in this circuit and in the 

Supreme Court of the United States have allowed statistical 

evidence to be utilized to assist in inferring intentional 

=46- 

 



  

discrimination, all of those cases involved actions under Title 

VII or involved challenges to a jury composition claim. 

Petitioner has cited to no case granting habeas corpus relief 

based upon a challenge to a capital sentencing system which was 

made solely on the basis of a statistical challenge. In fact, 

the courts of this circuit have consistently rejected such 

claims. 

Further, the Petitioner had ample opportunity to present 

any other evidence in support of his claim before this Court in 

1983, Petitioner took the deposition of the assistant district 

attorney at the state habeas corpus proceeding, took the 

deposition of the district attorney of Fulton County before 

this Court and presented evidence concerning the actual 

composition of Petitioner's trial jury. This Court did not 

preclude the Petitioner from presenting any other evidence 

which would relate to intentional discrimination in this case. 

This Court did decline to allow discovery to inquire into 

historical practices relating to jury composition challenges in 

Fulton County, which would not be relevant to intentional 

discrimination in this case. Petitioner was certainly aware of 

the nature of tthe prosecutor's strikes at the time of his trial 

and could have advised this Court of that fact at the time of 

the original hearing. 

Although Petitioner asserts that he was not aware that the 

prosecutor's peremptory strikes could serve as a basis for 

47 

 



  

finding discrimination until the decision Batson v. Kentucky, 
  

Respondent submits that Batson v. Kentucky is not relevant to 
  

this claim. Batson v. Kentucky relates to the standard to be 
  

applied in determining whether there has been an equal 

protection violation in the utilization of peremptory strikes, 

not as to whether there has been intentional and purposeful 

discrimination in actually seeking a death sentence in a given 

case. Certainly, Batson does not establish any new law in 

relation to this claim which would justify reconsideration of 

this issue. 

As this claim has previously been raised and litigated 

extensively in the prior habeas corpus proceeding, Respondent 

submits that Petitioner must show that the ends of justice 

require reconsideration of this claim at this stage of the 

proceeding. Petitioner has clearly failed to make any showing 

which would justify a finding by this Court that the ends of 

justice would be served by reconsidering this claim. In fact, 

Respondent submits that just the opposite is true. In a case 

where a claim has been litigated to the extent of actually 

being argued and briefed before the Supreme Court of the United 

States, to reconsider the claim at this stage of the 

proceedings when there is no applicable new law and no new 

facts which could not have been presented previously, would 

certainly not serve the ends of justice. 

T48< 

 



  

E. DENIAL OF FUNDS FOR A BALLISTICS 

EXPERT. 

Petitioner asserts that the trial court improperly denied 

hie motion for funds for a ballistics expert. Petitioner 

asserts that while this allegation has been decided previously, 

there is new law in the form of the decisions in Ake v. 

Oklahoma, U.S. r 2058S, Ct. 1087: (1985) and Moore Vv, 
    

Kemp, 809 FP.24 702 (11th cir. 1987) (en banc) which would 

justify reconsideration of this claim. Respondent again 

submits that Petitioner has failed to show that the ends of 

justice require reconsideration of this issue. 

Prior to trial, counsel for the Petitioner filed a "Motion 

and Brief to Proceed In Forma Pauperis and Funds for Expert 

Witnesses," (T.R. 33). (?.R., refers to the trial record which 

was submitted to this Court in the first federal habeas corpus 

proceeding as Respondent's Exhibit No. 1). In that motion, the 

Petitioner requested that he be allowed to proceed in forma 

pauperis and that the court "require the state to provide the 

defendant with reasonable funds to employ experts, as set out 

below, to enable him to have an adequate defense, due process 
— 

~ 

Of law, and a fair trial under the Fifth, Sixth and Fourteenth 

Amendments to the United States Constitution." 14. The 

Petitioner then asserted that he was without money to pay for 

his defense and noted that the state had used the services of 

numerous experts "including pathologists, criminologists, 

S49 

 



  

| 

criminal investigators, ballistics experts, and others, in the 

investigation and preparation of this case for trial.” 14. In 

the prayer for relief, the Petitioner asked the trial court 

only for a "professional and criminal investigator to assist 

his counsel in the development of exculpatory and impeaching 

evidence in this case" and stated that he was "in need of funds 

to secure the services of a trained psychologist or 

psychiatrist to testify on and scientifically demonstrate the 

manner in which statements were coerced from the defendant by 

law. enforcement officials against his will." 14. The 

Petitioner finally asked for funds to pay for the cost of court 

transcripts. At no time during this motion aia the Petitioner 

make any type of request for any expert relating to a 

ballistics examination. 

In the state habeas corpus proceeding, the Petitioner 

asserted that the trial court improperly denied his motion for 

funds for a ballistics expert. The deposition of the 

ballistics expert for the state who testified at trial was 

taken before that court. In ruling on this allegation, the 

state habeas corpus court found the following as fact: 

As to a~-ballistics expert, the State's 

witness Kelly Fite, testified that the 

murder weapon was probably a .38 Rossi 

but no weapon was ever recovered or 

introduced at trial. (H.T. 44-45). 

=5() 

 



  

Mr. Fite stated that his opinion was 

based upon an accumulation of data for 

several years plus a check with the 

P.B.1. record file in Washington. 

(Fite deposition, p.4). Mr. Fite also 

stated that only two other type weapons 

were possibilities. (I14., D.7). Even 

if another expert testified, it is 

doubtful that such testimony could have 

sufficiently refuted the totality of 

evident against petitioner. 

First state habeas corpus order at 10. (Said order was 

submitted as Respondent's Exhibit NO. 8 to the first federal 

habeas corpus proceeding filed in this Court and is included as 

Respondent's Exhibit No. 4 to the second state habeas corpus 

proceeding which is submitted as an exhibit to this Court.) 

The court went on to note that traditionally the appointment of 

expert witnesses lies within the discretion of the trial 

court. The.court specifically held, however, that "Petitioner 

demonstrated no special need for the appointment of an 

investigator, nor did Petitioner request the appointment of a 
  

ballistics expert." 1d. (emphasis added). Thus, in. finding 
  

that there was no abuse of discretion, the court specifically 

found as fact that there was no request for a ballistics expert 

made prior to trial nor was there any need shown for such an 

=57- 

 



  

; 

: 

expert. Petitioner did not seek to present any additional 

evidence to that court to prove that any further showing was 

made to the trial court to justify the granting of funds for 

such an expert. 

Petitioner again rasied this claim in the first federal 

habeas corpus petition filed in this Court as his Claim B. 

This Court considered the allegation under the abuse of 

discretion standard noting that "Petitioner had ample 

opportunity to examine the evidence prior to trial and to 

subject the expert to a thorough cross-examination. Nothing in 

the record indicates the expert was biased or incompetent." 

McCleskey v. Zant, supra, 580 .F. Supp. at 389. Although 
  

Petitioner did file a cross-appeal in the Eleventh Circuit 

Court of Appeals from the decision of this Court, this claim 

was not raised at that time. 

Petitioner asserts that Ake v. Oklahoma and Moore v. Kemp 
    

are new law justifying reconsideration of this claim. 

Respondent submits that Petitioner has failed to show the ends 

of justice require reconsideration of this issue. Initially, 

it should be noted that the Supreme Court of the United States 

has never held the .standards of Ake v. Oklahoma are applicable 
  

to questions involving non-psychiatric experts. In fact, in 

Caldwell v, Mississippi, U.S. 7 105 S.Ct.=2633 (1985), 
  

the Court specifically found it had no need to determine as a 

SES 

 



  

matter of federal constitutional law "what if any showing would 

have entitled the defendant to the assistance of the type 

sought here." 1d. at 2637 n.l. Purthermore, Respondent 

submits that under the specific facts of this case, even if Ake 

v. Oklahoma is new law which would be applicable to this case, 
  

there is no need for reconsideration of this claim. 

In the instant case, there has been no request made for a 

ballistics expert, much less has there been any showing made 

that a ballistics expert was essential to the defense. As the 

Court held in Caldwell, supra, "Given that the Petitioner   

of fered little more than undeveloped assertions that the 

request for assistance would be beneficial, we find no 

deprivation of due process in the trial judge's decision." 

Id. Petitioner has done no more in the successive proceedings 

than assert that if given the opportunity trial counsel might 

show that an oral proffer was made to the trial court. 

Petitioner has never explained why he could not have presented 

any such evidence, if in fact it exists, at the first state 

habeas corpus proceeding when trial counsel testified before 

that court. Respondent submits that to allow the Petitioner to 

attempt to relitigate a claim which he had every opportunity to 

litigate previously and, in fact, did litigate previously, 

based upon a bare conclusory allegation that trial counsel 

might say something different at this stage of the proceeding, 

does not serve the ends of justice. This is particularly true 

=53. 

 



  

under the circumstances of the instant case when no request for 

a ballistics expert was made on the record. Thus, as the 

record is clear that there was no request for a ballistics 

expert and Petitioner has never sought up until this time to 

make any further showing regarding the record, Respondent 

submits that Ake v. Oklahoma simply does not require 
  

; reconsideration of this claim under the ends of justice 

standard or, in the alternative, fails to state a 

constitutional violation. See Tucker v. Kemp, 818 F.2d 749, 
  

752 (llth cir. 19587). 

il Vv . 

MOTION FOR A STAY OF EXECUTION 
  

Respondent would specifically oppose in this brief 

Petitioner's motion for a stay of execution noting that no 

justification has been set forth for this Court to stay the 

execution at this stage. All issues are readily reviewable 

upon the record before this Court and can be resolved without 

the necessity of a stay of execution. Thus, Respondent 

specifically 16qUesLS this Court to deny the request for a stay 

of execution. Should this Court deny relief, Respondent would 

also take this opportunity to urge this Court to deny any 

application for a certificate of probable cause to appeal 

should one be requested by the Petitioner. 

a 

 



  

CONCLUSION 
  

For all the above and foregoing reasons, Respondent submits 

that the instant petition is clearly an abuse of the writ and 

that Petitioner has failed to carry his burden of proving that 

the ends of justice require reconsideration of certain claims 

i and has failed to prove that he is not guilty of inexcusable 

neglect in relation to claims not previously raised. Thus, 

) Respondent prays that the instant petition be dismissed and a 

stay of execution be denied. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 

First As istant Attorney General 

pl iy 
AM }- HiLL, 98/7 =) 380735 

i enior Assistant Atkorndy General 

  

  

   

  

750150 

MARY BETH WESTMORELAND 

132 state Judicial Building 
40 Capitol Square, 5. W. 
Atlanta, Georgia 30334 
(404) 656-3349 

~E5.. 

 



  

i 

1 

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served the instant 

brief upon counsel for the Petitioner in the above-styled 

action by hand delivering two copies of same to Robert H. 

Stroup. 

This UA day of - 1987, 
,   

  

  

Assis¥ant Attorney General 

=F; Gwe 

 



  

: UNITED STATES DISTRICT COURT 
; NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

  

WARREN MCCLESKEY, * 
* 

Petitioner, * 
*® CIVIL ACTION NO, 

1 V. * 

i * HABEAS CORPUS 
3 RALPH KEMP, WARDEN, * 28 U.S.C, '§ 2252 

* 

Respondent. * 

ANSWER /RESPONSE 

is Comes now Ralph Kemp, Warden, Respondent in the 

above-styled action, by counsel, Michael J. Bowers, Attorney 

General for the State of Georgia, and answers the allegations 

of the petition as follows: 

ALLEGATIONS OF PETITION 
  

1: 

Respondent denies that any of the Petitioner's 

constitutional-richts have been violated by any of the grounds 

alleged in the instant petition. All material averments of the 

petition are denied. A more detailed factual and legal 

statement of the Respondent's position is stated in the brief 

submitted contemporaneously with this answer and incorporated 

by reference herein. 

 



  

2. 

In responding to specific allegations of the petition, 

Respondent states the following: 

- 

Respondent denies ground A of the petition in which 

Petitioner asserts that his rights were violated by the state's 

alleged use at trial of incriminating statements made by the 

Petitioner to an alleged jail house informant who was 

supposedly acting on behalf of the state; 

b. 

Respondent denies ground B of the instant petition in which 

Petitioner asserts that the state+sfailed to correct the 

testimony of a witness at trial; 

Ce 

Respondent denies ground C of the instant petition in which 

Petitioner asserts that his rights were violated by the alleged 

nondisclosure of alleged critical impeachment evidence; 

d., 

Respondent denies ground D of the instant peticion in which 

Petitioner asserts his rights were violated by the prosecutor's 

alleged reference to appellate review in closing argument at 

the sentencing phase; 

 



  

e. 

Respondent denies ground E of the instant petition in which 

Petitioner asserts his rights were violated by the manner of 

the prosecutor's use of peremptory strikes; 

f. 

Respondent denies ground F of the instant petition in which 

Petitioner asserts that his death penalty was imposed based 

upon intentional racial discrimination; 

g. 

Respondent denies ground G of the instant petition in which 

Petitioner asserts that his rights were violated by the failure 

to appoint Petitioner a ballistics expert or provide funds for 

& same, 

3. 

Petitioner has received a full and fair post-conviction 

hearing on the issues raised in the instant petition in the 

state courts. All issues raised have either been considered in 

the first or second state habeas corpus proceeding or on direct 

appeal. Any factual finding made by any state courts relevant 

to the issues raised should be afforded a presumption of 

correctness. Petitioner has shown insufficient cause to 

require this Court to relitigate any claims raised. 

 



  

EXHAUSTION 
  

4, 

As noted previously, all claims raised in the instant 

petition have been raised in the state courts and exhaustion is 

not an issue, 

ABUSE OF THE WRIT 
  

; 5: 

Respondent specifically pleads abuse of the writ under Rule 

9(b) of the Rules Governing Section 2254 Cases. Respondent's 

position on the abuse 1s set forth more fully in the brief 

submitted contemporaneously with this answer and incorporated 

by reference herein. 

PROCEDURAL DEFAULT 
  

6. 

As to those issues not raised until the second state habeas 

corpus petition, Respondent submits that there has been a state 

procedural default thus precluding review of these claims at 

this time absent a showing of cause and prejudice. 

 



  

Respondent submits the following as exhibits to the court: 

(1) 

(2) 

(3) 

(4) 

TRANSCRIPTS AND EXHIBITS 
  

7. 

Respondent's Exhibit A - First 
  

federal habeas corpus petition 

filed in this Court as McCleskey 
  

Vv. Zant, Civil Action No. 

C81-2434A; 

Respondent's Exhibit B - Order of 
  

this Court originally dismissing 

the first federal habeas corpus 

petition dated June 10, 1982; 

Respondent's Exhibit C - Order of 
  

this Court dated September 30, 

1982, regarding Petitioner's 

motion to alter or amend; 

Respondent's Exhibit D - Order of 
  

this Court dated April 1, 1983, 

regarding Petitioner's motion for 

an evidentiary hearing in the 

first federal habeas corpus 

petition; 

 



  

£5) 

(6) 

(7) 

(8) 

(3) 

  

Respondent's Exhibit E - Petition 
  

for a Writ of Certiorari filed in 

the United States Supreme Court in 

relation to the first federal 

habeas corpus petition; 

Respondent's Exhibit F - Petition 
  

for Rehearing filed in the Supreme 

Court of the United States; 

Respondent's Exhibit G - Second 
  

state habeas corpus petition and 

accompanying exhibits filed in the 

Superior Court of Butts County, 

Georgia, as Civil Aétion No. 

87-vV-1028; 

Respondent's Exhibit H - Motion to 
  

Dismiss, Brief in Support and 

accompanying exhibits filed in the 

second state habeas corpus 

proceeding; 

Respondent's Exhibit I - 
  

Petitioner's first amendment and 

accompanying exhibits, including 

Notice of Intent to Introduce 

Affidavits, Motion to Preserve



  

(10) 

(11) 

(12) 

{13) 

(14) 

  

Records and Motion for Discovery, 

all submitted in the second state 

habeas corpus proceeding; 

Respondent's Exhibit J - Return 
  

and Answer filed by Respondent in 

the second state habeas corpus 

proceeding; 

Respondent's Exhibit K - Amended 
  

Answer filed by the Respondent in 

the second state habeas corpus 

proceeding, and Response to Motion 

for Discovery and Motion for Order 

to Preserve Records*and Files; 

Respondent's Exhibit L - Amendment 
  

to Motion to Dismiss and Brief in 

Support and accompanying exhibits 

submitted in the second state 

habeas corpus proceeding; 

Respondent's Exhibit M - 
  

Petitioner's Memorandum of Law in 

opposition to motion to dismiss; 

Respondent's Exhibit N - 
  

Petitioner's Exhibit N submitted 

in second state habeas corpus 

proceeding;



  

(15) Respondent's Exhibit 0 - 
  

Transcript of state habeas corpus 

proceeding; 

(16) Respondent's Exhibit P - Order 
  

dismissing second state habeas 

corpus petition; 

(17) Respondent's Exhibit Q - 
  

Application for Certificate of 

Probable Cause to Appeal to the 

supreme Court of Georgia; 

(18) Respondent's Exhibit No, R - 
  

Response on behalf of Respondent 

to the Application for Certificate 

of Probable Cause to Appeal; 

(19) Respondent's Exhibit No. § - 
  

Order from the Supreme Court of 

Georgia denying the application 

for a certificate of probable 

cause to appeal. 

In addition to the above exhibits, Respondent specifically 

requests this Court to take judicial notice of its own records, 

including all exhibits and briefs in the case of McCleskey v. 
  

Zant, Civil Action No. C81-2434A and will further request that 

the proceedings in that action be incorporated by reference in 

 



  

the instant petition for purposes of decision in the district 

court and for purposes of appeal. Respondent will further note 

that neither the decision of this Court on the first federal 

habeas corpus petition nor the decision of the Eleventh Circuit 

Court of Appeals are included as exhibits as both are quite 

lengthy and are reported and available for reference by the 

court, 

STATE APPEALS 
  

8. 

Petitioner had a direct appeal from the instant conviction 

and sentences in the Supreme Court of Georgia which court 

affirmed those convictions. McCleskey v. State, 245 Ga. 108, 
  

263 S.E.28 146 (1980). 

CONCLUSION 
  

Wherefore, for all the above and foregoing reasons, and for 

those reasons set forth in the brief submitted 

contemporaneously with this answer, Respondent prays that the 

instant petition be dismissed as an abuse of the writ or, in 

the alternative, that relief be denied and that judgment be 

entered in favor of the Respondent and that the motion for a 

stay of execution be denied and that this Court deny any 

subsequent application for a certificate of probable cause to 

appeal. 

 



  

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
Z First Assistant Attorney General 

    

  ji, ao 354725 

  

Assifsfant Attorney Genéral 

i MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, 8. W, 
Atlanta, Georgia 30334 
(404) 656-3349 

-10- 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served the 

foregoing answer, upon counsel for the Petitioner in the 

above-styled action by hand delivering two copies of same to 

Robert H, Stroup. 

This Th day of J 1937. 
  

   
   

TH WESTMORELAND 

ant Attorney General 

-11- 

 



  

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN MCCLESKEY, 

Petitioner, 

CIVIL ACTION NO. 
  

Ve 

HABEAS CORPUS 
RALPH KEMP, WARDEN, 28 U.S.C, § 2254 

* 
% 

oF
 

OF
 

% 
* 

X*
 

* 
* 

Respondent. 

RESPONSE TO MOTION FOR DISCOVERY 
  

Comes now Ralph Kemp, Warden, Respondent in the instant 

action, and submits the instant opposition to Petitioner's 

motion for discovery submitted in the instant action. 

In this action, Petitioner has requested this Court grant 

leave to conduct discovery by way of taking numerous 

depositions. Respondent would oppose the granting of such 

discovery at this stage of the proceeding particularly as the 

Petitioner shows no reason why the witnesses could not simply 

be subpoenaed for a hearing before this Court. Further, 

Petitioner has-failed to show this Court good cause for 

exercising its discretion granting leave as required under Rule 

6 of the Rules Governing Section 2254 Cases. Clearly, the 

question of whether to grant discovery is a matter for the 

 



  

discretion of the court, See Harris v,. Nelson, 394 U.S. 286 
  

(1969): Willis v, Newsome, 771 P.2d4 1445 (11th Cir. 1985). In 
  

this case, Petitioner has simply shown insufficient cause to 

justify this Court in exercising its discretion to grant 

discovery. 

WHEREFORE, Respondent prays that this Court deny a leave of 

court to take discovery in this matter. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

  

  MILLIAM B, HILL, JR, 7 354775 
Senior Assistant Attorpky General 

  

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 

(404) 656-3349 

3 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served a copy of 

the instant response upon counsel for the Petitioner in the 

above-styled action by hand delivering two copies of same to 

Robert H. Stroup. 

This Jd day of Llir 1987, 

al 
    

~hser Bs dl 2 
  

Assigfant Attorney nl 

ut Ja WESTMORELAND /