General Legal Files and Appeal

    Cnited States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, N.W. 

Atlanta, Georgia 30303 a | 
Miguel J. Cortez February 17, 1988 In Replying Give Number 

Clerk : Of Case And Names Of Parties 

  

Robert H. Stroup, Esq. 
141 Walton Street 
Atlanta, GA 30303 

No. 88-8085 - WARREN MCCLESKEY V. RALPH M. KEMP 
(Dist. Ct. #87-CV-1517) 

  

The referenced case has been docketed in this court. Please use the appellate docket number noted above when making inquiries. 

Upon receipt of the district court's order concerning whether this appeal will be allowed to proceed in forma pauperis (and, if required, whether a certificate of probable cause will be issued), we will advise you regarding further requirements. 

Counsel participating in this appeal should complete and return the enclosed appearance form within fourteen (14) days. [llth Cir. R. 46-1]. Only counsel who enter an appearance will be noted on the docket. Persons appearing pro se need not file an appearance form. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

Deputy Clerk 

Encl. 

cc: Clerk of District Court 
Mary Beth Westmoreland, Esq. 
Julius L. Chambers, Esq. 

P.S. to the District Clerk: Upon entry of an order regarding imx:fommzx 
PAIREDXIXBNAXOEX certificate of probable 
cause, please forward a copy of the order 
and an updated copy of the docket entries. 

DKT=-5 
8/87 

 



  

YE Bates Cir dt Siar Freszonm | 
Eleventh Circuit EB 22 1988 

56 Forsyth Street, N.W. SISOS) 
= Atlanta, Georgia 30303 ——————— ’ BR ama 

Sg Fearuary U7, 1982 Of Case And Names Of Parties 

William B. Hill, Jr. Esq. “5 Joel Ade 
Mary Beth Westmoreland, Esq. 
Office of. the Attorney General 
40 Capitol Square, S. W. 
132 State Judicial Bldg. 
Atlanta, GA 30334 

No. 88-8085 - WARREN MCCLESKEY V. RALPH M. KEMP 
(Dist.Ct.# 87-CV-1517) 

  

The referenced case has been docketed in this court. Please use the appellate docket number noted above when making inquiries. 
Trial exhibits are not ordinarily transmitted to this court. Parties who deem it essential that this court have an exhibit to understand or resolve issues on appeal, should by letter to the district court Clerk request that the specified exhibit (s) be sent. Contraband or . dangerous exhibits may not be sent except by court order. Counsel must arrange at their own expense for transportation to and from this office of over-sized exhibits. (See 11th Cir. R. 11-3]. 

Counsel participating in this appeal should complete and return the enclosed appearance form within fourteen (14) days. [llth Cir. R. 46-1]. Only counsel who enter an appearance will be noted on the docket. Persons appearing pro se need not file an appearance form. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: 7; (4 2 ITN 
eputy Clerk 

Encl. 

cc?” ‘Robert H. Stroup, Esq. 
Julius L. Chambers, Esq. 

DKT-1 
7/87 

 



    
¢ 

A 

WARREN MCCLESKEY, 

FILED IN 6LERK'S office 

    
IN THE UNITED STATES DISTRICT COURT. 

FOR THE NORTHERN DISTRICT OF GEORG 

ATLANTA DIVISION 

Petitioner, 
CASE NO. 1:87-cv-1517-JOF 

VS. 

RALPH M. KEMP, WARDEN, 

Respondent. 
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ORDER 

I, J. OWEN FORRESTER, the District Court Judge in 

the above-captioned action, do hereby certify, pursuant to 

28 U.S.C. Section 2253, that there exists probable cause to 

appeal. £2 

This 7 ~ day of HW pores iit TE 
  

  

  
J. PWEN FORRESTER, 
UNITED STATES DISTRICT JUDGE 

Nii” 

 



  

LUTHER D. THOMAS 

United States District Court 
NORTHERN DISTRICT OF GEORGIA 

2211 UNITED STATES COURTHOUSE 

7% SPRING STREET, S.W. 

ATLANTA, GEORGIA 30335 

CLERK 8 March 14, 1988 

Mr. Miguel J. Cortez, Jr., Clerk 
United States Court of Appeals, Eleventh Circuit 
50 Spring Street, S.W. 
Atlanta, GA 30303-3147 

IN RE: 

Enclosed are documents regarding an appeal in this matter. 

D.C. No. 1:87-cv-1517-J0F 
  

  

U.S.C.A. No. 88-8085 

WARREN MCCLESKEY VS RALPH M. KEMP, WARDEN 
lB i Se BRE Se TE TE I Te YE TERE RR Si oe WV A SPORE A 

the enclosed copy of this letter. 

——— 

——— 

Certified copy of notice of appeal, docket entries, judgement and opinion/order 
appealed from, enclosed. If opinion/order was oral, please check. 

First Notice of Appeal: Yes NO Date(s) of other notices: 

Certified record on appeal consisting of: 

Volume(s) of pleadings, etc.: 

Volume(s) of exhibits/depositions. 

Please acknowledge receipt on 

  

Volume(s) of transcripts; 

Other: 
  

There was no hearing from which a transcript could be made. 

—— 

Copy of CJA form appointing counsel. 

The following materials were SEALED in this court (order enclosed): 

  

The appellate docket fee has been paid Yes No; Date(s) paid 
  

XX Appellant has been granted/denied leave to appeal in forma pauperis (copy of order 
grantingidamxxxgxXkRxardXex Certificate of Probable Cause is enclosed). 

  

The Judge or Magistrate appealed from is 

The Court Reporter(s) are 

  

  

This is an appeal of a bankruptcy order. 

  

This is a DEATH PENALTY appeal. 

CC 

Bankruptcy Judge: 
  

Sincerely, 

LUTHER D. THOMAS, Cler 

> | [8 

ef 
  

on) Deputy ClérRe



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW. 

Atlanta, Georgia 30303 Tay 
Miguel J. Cortez March 15, 1988 In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

Luther D. Thomas 

Clerk, US District Court 

2211 US Courthouse 

75 Spring St. SW 

Atlanta, GA 30335 

No. 88-8085 - WARREN MCCLESKEY V. RALPH M. KEMP 
(DC Docket No. 87-CV-1517) 

  

( ) Enclosed is a notice of appeal erroneously sent to this court and now 
forwarded to you for filing as of the date received by this court, in 
accordance with Fed.R.App.P. 4(a) (1). 

( ) Please forward the original papers filed in your court together with 
any documentary exhibits and an updated copy of your docket entries for 
use by this court in ruling on a motion filed by the appellant. This 
material will be returned when the motion has been determined. 

( ) Receipt is acknowledged of the notice of appeal and docket entries in 
this case arising from an action in bankruptcy. Please forward a copy 
of the bankruptcy docket sheet and dispositive bankruptcy court order 
to assist this court in determining whether it has jurisdiction in 
this case. 

( ) Receipt is acknowledged of the notice of appeal and docket entries in 
this case heard before a magistrate. Please forward a copy of the 
magistrate's Report and Recommendation. | - 

(XX Please forward the record on appeal to this office "forthwith," 
pursuant to Fed.R.App.P. 1l1(b). We understand that the record is 
complete for purposes of appeal. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

Deputy Clerk 
  

Cle] 

CC: Mary Beth Westmoreland, Esq. 7/87 

Robert H. Stroup, Esq. 
John Charles Boger, Esq. 

 



1:87-cv-01517 

  

Julius L. Chambers, Esq. in MAD 2 4 , 1 
NAACP Legal Defense Fund | 
99 Hudson Street 
16th Floor 
New York, NY 10013 

 



  AO 72A © 

{Rev. 8/82)     
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9
 7 

IN THE UNITED STATES DISTRICT COURT MAR 

FOR THE NORTHERN DISTRICT OF GEORGIA 9 1988 
ATLANTA DIVISION 

  
7 By A THOMAS, Clerk 

Deputy Clerk 
WARREN McCLESKEY, 3 

Petitioner, 

vs. 3 CIVIL ACTION NO. 

1:87-Cv-1517-J0F 
RALPH M. KEMP, WARDEN, 2 

Respondent. 

ORDER 
  

This action is before the court on the respondent's motion 

to stay the judgment of this court pending appeal to the United 

States Court of Appeals for the Eleventh Circuit. The court 

agrees that a stay 1s appropriate and the respondent's motion is 

therefore GRANTED. This court's judgment of December 23, 1987 is 

hereby STAYED until the issuance of the mandate of the Eleventh 

Circuit Court of Appeals and until that mandate is made the 

judgment of this court, a completing the appellate process. 

SO ORDERED, this / day of I 1988. 
  

OWEN FORRESTER 
UNITEP STATES DISTRICT JUDGE 

  

MAR 14 1988 

E yi i DEPURLCLERK     
 



Hnited States District Court 
NORTHERN DISTRICT OF GEORGIA 

  

2211 UNITED STATES COURTHOUSE 

78 SPRING STREET, S.W. ° 

  

LUTHER D. THOMAS | v: ATLANTA, GEORGIA 30335 

SLER 4 March 16, 1988 

fr. Miguel J. Cortez, Jr., Clerk D.C. No. 1:87-CV-1517-J0F 
nited States Court of Appeals, Eleventh Circuit 

pO Spring Street, S.N. : . U.S: C.A. No. 88-8085 
  Atlanta, GA 30303-3147 

N RE: WARREN MCCLESKEY VS RALPH M. KEMP, WARDEN 
Gl ak TR RE Tr th oe TL AE RE i aL RY BE RT SP gn Si PE EEE 

nclosed are documents regarding an appeal in this matter. Please acknowledge receipt on he enclosed copy of this letter. 

Certified copy of notice of appeal, docket entries, judgement and opinion/order appealed from, enclosed. If opinion/order was oral, please check. 

  

First Notice of Appeal: Yes NO Date(s) of other notices: 
  

Certified record. on appeal consisting of: 

VoTume(s) of pleadings, etc.: Volume(s) of transcripts; 

Volume(s) of exhibits/depositions. Other: 
  

There was no hearing from which a transcript could be made. 

Copy of CJA form appointing counsel. 

The following materials were SEALED in this court (order enclosed): 

XX Order dated 3/9/88 granting stay of judgment and staying judgment of 12/23/87. 

  

The appellate docket fee has been paid Yes No; Date(s) paid 
  

Appellant has been granted/denied leave to appeal in forma pauperis (copy of order 
granting/denying IFP and/or Certificate of Probable Cause is enclosed). 

  

The Judge or Magistrate appealed from is 

  

The Court Reporter(s) are 

This is an appeal of a bankruptcy order. Bankruptcy Judge: 
  

  

This is a DEATH PENALTY appeal. 

Sincerely, 

LUTHER D. THOMAS, Clerk 

NN Lunn MAd lls 

CC 

  

) Deputy Clerk 

 



ELEVENTH CIRCUIT 
OFFICE OF THE CLERK 

56 FORSYTH STREET, N. W. a A A : J 

ATLANTA, GEORGIA 30303 8 \\ /co’ / 

UNITED STATES COURT OF APPEALS = E- | | | Pood 

Lo 1 

POSTAGE ND FEES PAID 
: 1 PENS 

UNITED SHATE'S’COURTS 

USC.426....... 

OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE, $300 

John Charles Boger, Esq. 

NAACP Legal Defense Fund 
99 Hudson Street 
156th Floor 
New York, NY 10013  



  

United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, N.W. 
Atlanta, Georgia 30303 va 

Miguel J. Cortez March 29, 1988 In Replying Give Number 
Clerk : ; Of Case And Names Of Parties 

Mary Beth Westmoreland, Esq. 
Office of the Attorney General 

132 State Judicial Bldg. 
40 Capitol Square, S. W. 
Atlanta, Ga 30334 

No. 88-8085 - WARREN MCCLESKEY V. RALPH M. KEMP 
(DC Docket No. 87-CV-1517) 

  

Pursuant to Fed.R.App.P. 12(b), be advised that the record is complete 
for purposes of appeal. Appellant's brief and record excerpts are due 
within 40 days from this date. IF THE DISTRICT COURT ORDER ON APPEAL 
ADOPTS IN WHOLE OR IN PART THE RECOMMENDATIONS OF A MAGISTRATE, OR 
INVOLVES FINDINGS AND CONCLUSIONS OF AN ADMINISTRATIVE LAW JUDGE, THE 
COURT ALSO DESIRES THAT THESE MATERIALS, TOGETHER WITH ANY OBJECTIONS 
WHICH MAY HAVE BEEN FILED THERETO, BE INCLUDED IN THE RECORD EXCERPTS. 
See Fed.R.App.P. 28, 30, 31 and 32, and the corresponding circuit rules for further information on preparing briefs and record excerpts. 

Enclosed is an indexed copy of the certified district court docket 
entries which show material certified to this court as the record. 
Counsel are requested to use this docket sheet and their own file 
copies of the court papers in preparing the brief and record excerpts. 
Both appellant and appellee are strongly urged to review these entries 
promptly. Extensions to the briefing schedule are disfavored. If you 
believe the record is incomplete you are expected to expeditiously file 
a motion to supplement it. Requests to supplement the record should be 
made within fourteen (14) days from this date. Please refer to the 
attached sheet for information on referencing the record. 

If the record on appeal is needed to prepare your brief, it will be 
made available to you upon request. However, you will not be granted 
an extension of time to file your brief simply because of the lapse of 
time between the beginning of the briefing schedule and your receipt of 
the record. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

Deputy Clerk 
  

Encl. 

cc: Robert H. Stroup, Esq. NR 
John Charles Boger, Esq. 

 



  

U.S. District 

U.S. District Court For the Northern 

CIVIL DOCKET FOR CASE f#: 

McCleskey v. Kemp, et al 

Assigned to: 

Demand: $0,000 

Lead Docket: None 
Dkt# in other court: None 

Cause: 

WARREN MCCLESKEY 

petitioner 

Vv. 

RALPH M. KEMP, Superintendent, 

Georgia Diagnostic and 
Classification Center 

respondent 

Docket as of March 25, 1988 9:11 

DEATH 

court 
District of Georgia (Atlanta) 

87-Cy=1517 

Filed: 7/7/87 
Judge J. Owen Forrester 

Nature of Suit: 530 

Jurisdiction: Federal Question 

28:2254 Petition for Writ of Habeas Corpus (State) 

Robert -H. Stroup 

[COR LD NTC] 
Office of Robert H. Stroup 
141 Walton Street 

Atlanta, GA 30303 

404-522-8500 

Julius L. Chambers, phv 
[COR. ID NTC] 
James M. Nabrit, III, phv 

{COR 1D NTC] 

NAACP Legal Defense Fund 
99 Hudson Street 

loth Floor 

New York, NY 

212-218-1900 

10013 o JE 

William Bradley Hill, Jr. 
[COR LD NTC] 
Mary Beth Westmoreland 
[COR LD NTC] 
Office of State Attorney 
General 
40 Capitol Square, S.W. 
132 Judicial Building 
Atlanta, GA 30334 

404-656-3300 ATTEST: A TRUE COPY 
CERT, ans THIS 24 ZA 

“pk Bhd cor Jf 

Sepera’ 
Lead Clerk 

am Page. l 

 



   
Proceedings include all events. 

1:87cv1517 McCleskey v. Kemp, et al veaty BEG Vo | 1 

7/7/87 oO PETITION for writ of habeas corpus with request, to 
proceed in forma pauperis with ORDER by Judge J. O. 
Forrester GRANTING request [1-2] . (yrm) 

[Entry date 7/8/87] 

  

7/7/57 MOTION by petitioner Warren McCleskey for discovery with 
attachments. (yrm) [Entry date 7/8/87] 

7/7/57 £i MOTION by petitioner Warren McCleskey for stay of 
: execution with attachments. (yrm) [Entry date 7/8/87] 

1/8/37 

7/8/87 

(yrm) 
  

Response by respondent Ralph M. Kemp to petition for writ ;/ - 
of habeas corpus [1-1] with brief in support. (yrm) ol Vo 
  

7/8/87 5) RESPONSE by respondent Ralph M. Kemp motion for discovery 
by Warren McCleskey [2-1] (yrm) 

7/8/87 ~ SUBMITTED +0 Judge J. O. Forrester on motion for stay of 
execution by Warren McCleskey [3-1], motion for discovery 
by Warren McCleskey [2-1], order [1-3], petition for writ 
of habeas corpus [1-1] (yrm) 

7/8/87 D, Affidavit of John Boger & Robert Stroup filed. (dt) 
[Entry date 7/16/87] 

1/3/87 gree HEARING held on petition for writ of habeas corpus [1-1] 

before Judge J. 0. Forrester . Affidavits of John C. Boger 
& Robert H. Stroup filed (also marked as exhs by pltf. #1 & 
2. Order directing respondent to produce petitioner for hrg. 
filed (executed by state) (I don't find this order). R. 
Seroup, R. Parker, C. Hamilton & W. Harris sworn & 

testified. PItf. exhs 3,4,5,6,7,8,9 ADMITTED. (Order above 
that I could not find was rec'd in office 8/10 from judge's 
office and stamped filed 7/8/87.) (dt) 

[Entry date 7/16/87] [Edit date 9/8/87] 

2 /5/8% (iD ORDER that respondent to produce Mr. McCleskey for hrg on 
7/8/87 by Judge J. O. Forrester . (4L) 
[Entry date 8/24/87] 

1/9/87 ree HEARING continued on petition for writ of habeas corpus 
[1-1] before Judge J. OO. Forrester . W.Harris, W. Jowers?, 

C. Jackson, .5. Dorsey, R. Parker, D. Kelsey, U. Worthy all 
sworn & testified. Pltf's exh 10 ADMITTED. Court verbally 
stayed the execution of petitioner set for 7/14/87 pending 
further evidentiary hrg to be held the first week in 
August. (dt) [Entry date 7/16/87) 

7/10/87 (5) ORDER GRANTING motion for stay of execution by Warren 
McCleskey [3-1] by Judge J. O. Forrester . co 7/10 (ym) 

  
Docket as of. March 25, :1988 9:11 am Page 2 cont Vol 

 



   
  

Proceedings include all events. : 

1:87¢cvl151l7 McCleskey v. Kemp, et al DEATH cont Vol 1 

7/10/87 ) Acknowledgment by dft that appropriate state officials have 

been telephonically notified of the stay of execution. (dt) 

[Entry date 7/16/87) [Edit date 2/4/88] : : 
  

7/14/87 = Transcript filed for dates of 7/9/87. (dt) 
[Entry date 7/20/87] 

2/33/87 =~ Transcript filed for ‘dates of 7/8/87. (dt) 

[Entry date 7/21/87] 
  

8/3/87 (2) ORDER DIRECTING respondent to produce the petitioner for 
hrg. on 8/7/87 at 9:30 a.m. by Judge J. O. Forrester . cc 

(dt) [Entry date 8/5/87] 

8/5/87 Go) MOTION by petitioner Warren McCleskey to prohibit recall 

of witnesses with brief in support. (dt) 
[Entry date 8/6/87] 

8710/87: == Evidentiary hearing resumed from July 9, 1987 . U. Worthy, 

C. Hamilton, S. Dorsey, W. Jowers, W. Harris, R. Parker all 

sworn & testified. Pltf's exh 16 ADMITTED. Petitioners 

post-hearing brief due w/in 30 days from today (9/10/87) 

Respondent's reply due w/in 10 days from 9/10/87. Clerk to 
submit file after conclusion of briefing schedule. (dt) 
[Entry date 8/24/87] 

8/10/87 2) RESPONSE by respondent Ralph M. Kemp in opposition to 

motion to prohibit recall of witnesses by Warren McCleskey 

[10-1] (rec'd by me 8/21/87) (dt) [Entry date 8/24/87] 

8/17/87 (3) ORDER Federal Public Defender Program, Inc. 1s appointed to 

represent plft. by Judge J. 0. Forrester .cc (db) 
[Entry date 9/3/87] 

  

  

0/9/87 MOTION by petitioner Warren McCleskey to exceed page limit 

with brief in support. (dt) {Entry date 9/11/87] 

0/9/87 ©) POST HEARING MEMORANDUM of Law by petitioner Warren 

McCleskey dt) [Entry date 9/11/87] 

9/14/87 (te) Application for leave of absence of Robert H. Stroup 
w/prop order. to JOP. (dt) [Entry date 9/15/37) 

97/15/87. Transcript filed for dates of 8/10/87. (dt) 

[Entry date 9/17/87] 

0/18/87 17 ORDER by ct dep. GRANTING application motion for leave of 

absence of Robert H. Stroup [16-1] beginning 10/23/87 and 

extending through 10/30/87 for Robert H. Stroup . :cc (db) 

[Entry date 9/21/87] 

9/21/87 (8) MOTION by respondent Ralph M. Kemp to extend time to file 

brief to 9/28/87 with brief in support. to JOF any action 

now. (dt) [Bntry date 9/22/87] 

Docket as of March 25, 1988 9:11 am Page 3 CO Nt. Vo L 1 
  

 



   
Proceedings include all events. 
1:87¢cvis17 McCleskey v. Kemp, et al DEATH 

  

9/23/87 (19) ORDER GRANTING motion to extend time to file brief to 
9/28/87 by Ralph M. Kemp [18-1] by Judge J. ©O. Forrester 

cc. Order is on motion of 9/21/87 indicated as granted. (dt) 

[Entry date 9/28/87] 

  

A 

1 

90/29/87. =~ SUBMITTED +to Judge J. O. Forrester on motion to exceed GC VoL = 

page limit by Warren McCleskey [14-1] . (dt) BE oL O 

10/1/87 POST-HEARING Brief by respondent Ralph M. Kemp. to JOF 
(dt) [Entry date 10/5/87] 

to JOF (dt) [Entry date 10/5/87) 

10/9/87 

(20) 

10/1/87 &) POST-HEARING Reply Brief by petitioner Warren McCleskey. 

Gi SUBMITTED to Judge J. O. Forrester on briefs.. (dt) 

12/3/87 Steno notes of proceedings held July 8 & Aug. 10,1987 

before Judge J. 0. Forrester , by . (dt) 

12/23/87 (22) ORDER GRANTING IN PART AND DENYING IN PART petition for 

writ of habeas corpus [1-1], (see order) DENYING motion for 
discovery by Warren McCleskey [2-1], GRANTING motion to 

exceed page limit by Warren McCleskey [14-1] by Judge J. 
O. Forrester . cc {(8t) [Entry date 12/24/87] 

12/23/87(23) JUDGMENT ENTERED for petitioner Warren McCleskey against 

respondent, Ralph M. Kemp, Warden directing the respondent 
to re-try petitioner within 120 days from receipt of the 
32/13/87 nunc pro tuncifor 12/23/87. (Copies to coungel -~ 
judgment entered with permission of JOF) (db) 
[Entry date 1/26/88] 

1/4/88 —— Steno notes of proceedings held July 8, 1987 before Judge 

J.. 0. Forrester ,-by . {4L) 

1/15/88 24 NOTICE OF APPEAL, from order {22-1]1 by respondent Ralph M. 

Kemp. AC.GKkt.o0.¥.t0 USCA 1/27/88): ACK 88-8085 (db) 
[Entry date 1/27/88) [BAit date 2/25/88] 

1/15/88 {25 MOTION by respondent Ralph M. Kemp for stay of execution 

with brief in support. (db) [Entry date 1/27/88) 

1/21/88 (2) NOTICE OF CROSS—-APPEAL [24-1] by petitioner Warren 

McCleskey. ACK 88-8086 (db) [Entry date 2/3/88] 

[Edit date 2/25/88] 

1/27/88 2 Certificate of probable cause requested by petitioner with 

memo in support and proposed order. (db) 
[Entry date 2/3/88] 

2/3/8% ng SUBMITTED to Judge J. O. Forrester on probable cause 

certificate/certification [27-1] and MOTION for stay of 

judgment. (db) 

Docket as of March 25, 1988 9:11 am Page 4 Cont VoL 3 
  

 



   
Proceedings include all events. 

CoN? Ta 
  

1:87Cv1517 McCleskey v. Kemp, et al DEATH 

3/8/88 (2) ORDER DIRECTING that there exists probable cause to appeal 
by Judge. J. O. Forrester filed. cc (cert cpy to USCA). (lk) 
[Entry date 3/14/88] 

3/9/88 ORDER GRANTING motion for stay of execution by Ralph M. 
Kemp [25-1] staying judgment [23-1] until the issuance of 
the mandate of the 11th Circuit Court of Appeals and until 
that mandate is made the judgment of this court, thereby 
completing the appellate process by Judge J. 0. ‘Forrester 
cc (cert cpy to USCA). (1k) [Entry date 3/16/88] np Vol 
  

3/9/88 =~ File retained by court. (lk) [Entry date 3/16/88] 

3/17/88 + 30 Forthwith letter. (1k) [Entry date 3/21/88] 

Docket: as of March 25, 1988 9:11 am Page 5H 

= 
-/ 

 



  

INSTRUCTIONS ON MAKING PROPER RECORD REFERENCES 
  

Record references to pleadings and other court papers may be 

made by referring to the volume number, document number, and 
page number within the document. Volume numbers and 
document numbers are shown on the enclosed district court 
docket entries. If not all documents bearing a document 

number have been included in the record transmitted to the 

court of appeals, the document numbers of those documents 
transmitted have been circled. If no document numbers are 

circled, all filings bearing document numbers are included 

in the record transmitted to the court of appeals. 

For example, the reference R4-9-6 indicates: 

R 4 - 9 - 6 

record volume # document # page # 
reference 

Record references to transcripts may be cited by referring 

to the volume number assigned by the court and written in 

the margin next to the docket entry filing the transcript, 

and the page number. 

For example, the reference R8-32 indicates: 

R 8 - 32 

record volume # page # 
reference 

Use the designation SR preceded by the supplement number 

when referencing a Supplemental Record (e.g., ¥»SR,: 28%, 

arc.) 

NOTE: DO NOT REFERENCE TRANSCRIPTS BY THE VOLUME NUMBER 

WHICH WAS ASSIGNED BY THE COURT REPORTER. You must use the 

volume number assigned by the court and written in the 

margin next to the docket entry filing. the transcript, 

Transcript volume numbers follow in sequence after the final 

volume of pleadings and other court papers, and are numbered 

in chronological order by date of "hearing. Duplicate 

transcripts {including excerpts when a transcript of the 

entire proceeding or trial is later filed) are excluded from 

the record. 

 



  

Lith Cir. R. 28-2 Briefs—Contents. Each pnaapal aad amucus srief saall consist, 
in the order usted. of :ne folowing: 

  

(a) Cover Page. Elements to be shown on the cover page include the name of 
this court, (he case number, name of parties. jurisdiction from which the appeat is 
being taken, identification of brief (e.g. appellant, appeiles), and name of actorney. 

(b) Certificate of Interested Persons. A certificate will be furnished by counse 
for wv contains a com list of the trial judge(s), 
all attorneys, persons, associations of persons, firms, partnerships, or corporations 
that have an interest in the outcome of the particular case, inciuding subsidiaries, 
conglomerates, affiliates and parent corporations, and other identifiable legal en- 
tities related to a party. [n criminal and criminai-related cases, the certificate shail 
also contain the identity of the victim(s). 

(¢) Statement R Oral Appellant’s brief shall include a short 
statement of w Of DOL Oral argument is desired, and if so, the reasons why oral 
argument shouid be beard. Appeiles’s brief shail inciude a similar statement. The 
court will accord these statements due, though not controlling, weight in determin. 
ing whether oral argument will be heard in the case. See FRAP 34(s) and (0) and 
11th Cir. R. 34-3(¢). 

(d). Tabie of Contents and Citations. The table of contents and citations shail 
include page references showing the locations in the brief of citations and other sec- 
tions required by these rules and shall contain asterisks in the margin designating 
the citations upon which the party primarily relies. 

(¢) Statement of Jurisdiction. Each brief shall include a concise statement of the 
statutory of other basis of the jurisdiction of this court, containing citations of 
authority when necessary. 

( Statement of the Issues. 

(8) Statement of the Case. [a the statement of the case, ss in all other sections 
of the brief, every assertion regarding matter in the record shall be supported by o 

reference to the volume, document number and page number of the original record 
where the matter relied upon is to be found. The statement of the case shall include: 

  

@) course of proceedings and dispositions in the court below. IN A CRIMI- 
NAL CASE THE PARTY SHOULD STATE WHETHER THE 
DEFENDANT IS INCARCERATED; 

(ii) a statement of the facts. A proper statement of facts reflects a high 
standard of professionalism. [t must state the facts accurately, those 
favorable and those unfavorabie to the party. Inferences drawn from facts 
must be identified as such; 

(iii) a statement of the standard or scope of review for each contention. For 
example, where the appeal is from an exercise of district court 
there shail be a statement that the standard of review is whether the district 
court abused its discretion. The appropriate standard or scope of review 
for other contentions should be similarly indicated, e.g., that the district 
court erred in formulating or applying a rule of law; or that there is in- 
sufficient evidence to support a verdict; or that fact findings of the trial 
judge are clearly erroneous under Fed.R.Civ.P. 52(a); or that there is a 
lack of substantial evidence in the record as a whole to support the fac- 
tual findings of an administrative agency, or that the agency’s action, 
findings and conclusions should be held unlawful and set aside for the 
reasons set forth in § U.S.C. § 706(2). 

(h) Summary of the Argument. The opening briefs of the parties shall also 
contain a summary of argusiens, suitably peragraphed, which should be a clear, ac- 
curate and succinct condensation of the argument actually made in the body of the 
brief..It should not be a mere repetition of the headings under which the argument 
is arranged. It should seldom exceed two and never five pages. 

  

(i) Argument and Citations of Authority. Citations of authority in the brief shall 
comply with the rules of citation in the latest edition of A Uniform System of Citation. 
State case references should also cite national reporter cross references (e.g., Southern 
Reporter, Southeast Reporter). 

  

  

(J) Conclusion. 

(k) Certificate of Service. 
  

1th Cir. R. 28-3 Reply Brief. A reply brief need contain only items (a), (d), (D), (i), 
and (k) of 11th Cir. 8 hi. 2% 

1th Cir. R. 28-4 Briefs from Party Represented by Counsel. When a party is rep- 
  

resented by counsel, the clerk may not accept a brief ‘rom the party. 

 



Hnited States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW. 

Atlanta, Georgia 30303 
Miguel J. Cortez In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

No. 88-8085 - WARREN MCCLESKEY V. RALPH M. KEMP 

  

The following action has been taken in the referenced case: 

XX The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing a reply brief. 

for filing a petition for rehearing, which is due to be 
filed in the clerk's office on said date. 

For filing 
  

this extension is granted subject to the condition that 
no additional extensions will be requested by the movant 
and that the specified document will be filed on or before 
this new date. 

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

Wa PRS 
Deputy Clerk 
  

MOT-2 
7/87 

CC: ‘Mary Beth Westmorealnd, Esq. 
Robert H. Stroup, Esq. 
John Charles Boger, Esq. 

 



  

  

FILED 

ELEVENT! 

MAY 2 1988 
¥ 

US. COURT OF APPEALS 
cg 

L 

i 
| 

4 
    
vHGUEL J. CORTEZ | 

NAW L WAIN die 
Cl =r 

IN THE UNITED STATES COURT OF {APPEALS ULE 

FOR THE ELEVENTH CIRCUIT 

  

No. 88-8085 
  

WARREN MCCLESKEY, 

Petitioner-Appellee, 
Cross-Appellant, 

versus 

RALPH M. KEMP, 

Respondent-Appellant, 
Cross-Appellee. 

  

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

  

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

ORDER: 

Appellant/Cross—-Appellee's motion for a limited remand 

of this appeal to the United States District Court for the 

Northern District of Georgia is DENIED WITHOUT PREJUDICE, to 

  

 



  

allow the movant to file a proper motion in the district 

court pursuant to Federal Rule of Civil Procedure 60(b). See 

Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir. 1987) 

(requirements for Rule 60(b) motion); Ferrell v. Trailmobjile, 

Inc., 223 F.24 697, 698-99 (5th Cir. 1955) (district court 

has jurisdiction to consider Rule 60(b) motion while appeal 

is pending). If the district court indicates that it is 

inclined to grant the motion, then application can be made to 

this court for a remand. See Ferrell, 223 F.2d at 698-99; 11 

C. Wright & A, Miller, Federal Practice & Procedure: Civil § 

2873, at 265 (1973). If the district court denies the 

motion, the movant may appeal the denial together with its 

appeal from the grant of habeas corpus. See C. Wright & A. 

Miller, supra, at 266. 

Appellant/Cross Appellee's alternative motion to 

supplement the record on appeal is DENIED. 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

Vi 

RALPH M. KEMP, WARDEN, 

Respondent /Appellant 
Cross—-Appellee 

  

ON APPEAL FROM 

THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

MOTION TO STAY BRIEFING SCHEDULE OR, 

IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME 

IN WHICH TO FILE OPENING BRIEF FOR APPELLANT 

  

MICHAEL J. BOWERS 
Attorney General 

MARION O. GORDON 

First Assistant 

Attorney General 

Please serve: WILLIAM B. HILL, JR. 
Senior Assistant 

MARY BETH WESTMORELAND Attorney General 
132 State Judicial Bldg. 
40 Capitol Square, S.W. MARY BETH WESTMORELAND 
Atlanta, Georgia 30334 Assistant 
(404) 656-3349 Attorney General 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

VV. 

RALPH M. KEMP, WARDEN, 

Respondent /Appellant 
Cross-Appellee 

  

ON APPEAL FROM 

THE UNITED STATES DISTRICT COURT 
= NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

MOTION TO STAY BRIEFING SCHEDULE OR, 

IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME 

IN WHICH TO FILE OPENING BRIEF FOR APPELLANT 

  

Comes now Ralph Kemp, Warden, Respondent /Appellant in 

the above-styled action, and submits the instant motion to 

either stay the briefing schedule in this case or to grant 

an extension of time to the Appellant in which to file an 

open brief. In support of this motion, 

Respondent/Appellant would show that Respondent previously 

filed a motion for limited remand of this appeal to the 

 



  

United States District Court for the Northern District of 

Georgia in order to take the testimony of Offie Gene 

Evans. Respondent followed this procedure rather than 

file anything in the district court due to the fact that 

the appeal was pending and also due to the fact that the 

briefing schedule was running and Respondent was due to 

file a brief on May 9, 1988. Although this Court entered 

its order on May 2, 1988, denying that motion without 

prejudice and indicating that a motion should be filed in 

the district court under Rule 60(b) of the Federal Rules 

of Civil Procedure, counsel for the Respondent did not 

receive that order until May 5, 1988, due to the delay in 

the mail. On May 5, 1988, Respondent has prepared a 

motion which will be ready to be filed in the district 

court on May 6, 1988, ashing that court for relief from 

the judgment based upon Rule 60(b). Obviously that court 

will not have the opportunity to rule on that motion prior 

to the time that Respondent's brief is due in this Court. 

In its order of May 2, 1988, this Court specifically 

noted that Respondent could appeal the denial of the Rule 

60(b) motion with the appeal of the grant of habeas corpus 

relief should the district court deny such a motion. 

However, Respondent will necessarily be required to file a 

brief in this Court prior to such time as the district 

court can rule. In order to obviate the necessity of a 

 



  

second appeal or an attempt to consolidate appeals or 

concerns with how to actually present the issue to this 

Court, Respondent hereby files the instant motion with 

this Court asking that the briefing schedule be stayed 

until such time as the district court rule can upon the 

Rule 60(b) motion or, in the alternative, grant Respondent 

a sufficient extension of time to a date certain so that 

the district court can have adequate opportunity to have a 

response from counsel for the Petitioner and to rule upon 

the motion as well. This would obviate the necessity of 

either two appeals or an attempt to consolidate appeals 

and would certainly in the long run be in the best 

interest of judicial economy. 

Respondent realizes that this motion is being filed 

within a short time {rane prior to the date Respondent's 

brief is due; however, due to the unusual circumstances of 

this case, this was simply unavoidable. 

WHEREFORE, Respondent prays that the instant motion be 

granted and that the briefing schedule be stayed or, in 

the alternative, that Respondent be granted an extension 

of time for filing his brief so that Respondent's brief 

will not be due on May 9, 1988, for a reasonable time 

period to allow the district court to rule upon the motion 

Respondent is to file on May 6, 1988. 

 



  

MARY BETH WESTMORELAND 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 

First Assistant Attorney General 

“/ LC yf B_A/ ll i 
  

WILLIAM B. HILL, JR. 7354725 
Senior Assistant Attorney General 

7Y LA De LAL Sree fa xl 
  

MARY BETH WESTMORELAND 750150 
afl Attorney General 

132 State Judicial Building 
40 Capitol Square, S. W. 

Atlanta, Georgia 30334 
(404) 656-3349 

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have this day served 

the within and foregoing motion, prior to filing the same, 

by depositing a copy thereof, postage prepaid, in the 

United States Mail, properly addressed upon: 

/ 

Robert H. Stroup (: (ar 

141 Walton Street, N.WU 
Atlanta, Georgia 30303 

John Charles Boger 

99 Hudson Street 
New York, New York 10013 

This \4¢A day of May, 1988. 

ico Biv 1) Loa ng oo Bo act   

MARY CE WESTMORELAND 
ant Attorney General Assis 

 



  

    
THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

VS. 

Petitioner/Appellee, 
Cross-Appellant, 

RALPH M. KEMP, WARDEN, 

Respondent /Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

PETITIONER'S MEMORANDUM OF LAW 

IN OPPOSITION TO MOTION FOR REMAND OR 

TO ALLOW SUPPLEMENTATION OF THE RECORD 

  

ROBERT H. STROUP 
141 Halton St., N. 

Atlanta, Georgia 3 

(404) 522-8500 

Ww. 
0303 

JOHN CHARLES BOGER 

99 Hudson St. 

New York, N.Y. 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

VS. 

RALPH M. KEMP, WARDEN, 

Respondent /Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

PETITIONER'S MEMORANDUM OF LAW 

IN OPPOSITION TO MOTION FOR REMAND OR 

TO ALLOW SUPPLEMENTATION OF THE RECORD 

  

This is a case. in which the District Court granted 

habeas corpus relief to the petitioner under Massiah Vv. 
  

United States, 377 U.S. 201 (1964) on the basis of extensive 
  

evidence developed in two separate hearings before the 

Court. The first, a two-day hearing, occurred on July 8-9, 

1987. After that hearing, the District Court gave 

respondent a full month to develop its own evidence 1in 

 



  

defense against petitioner's claims. At the August 10 

hearing the Court heard respondent's defense--police 

officers and a prosecutor who denied any recollection of, or 

denied outright the existence of, any informer relationship. 

The informer whom petitioner asserts had a secret 

relationship with Atlanta police officers, in violation of 

Massiah, was one Offie Gene Evans. Although Evans himself 

did not testify during the July or August, 1987 hearings, 

his testimony, contrary to respondent's suggestions, was 

made a part of the record in this case. 1t was contained 

in: 

$1). A 21-page sworn statement, given to the Atlanta 

police officers and assistant district attorney on August 1, 

1978 in which Evans described in detail his relationship 

with petitioner McCleskey in the Fulton County Jail where 

the Massiah violation occurred. {Pet . Ex. 8); 

$2). Testimony to the jury in McCleskey's 1978 trial, 

in which Evans described his relationships with McCleskey 

and State officials. (Pet. Ex. 4); 

(3). Testimony in McCleskey's state habeas proceeding, 

in which Evans described details of his relationship with 

the Atlanta Police. (Pet. Ex. 16). 

Respondent gave no indication throughout the 

presentation of its case in August, 1987, that it had either 

(1) sought to locate Evans or (2) believed that presentation 

of its defense was limited by Evans' absence. 

 



  

~
 

—
 

On December 23, 1987 the Court entered its order 

granting relief, and on January 15, 1988, respondent entered 

his notice of appeal. Petitioner cross-appealed January 21, 

1988. 

On the basis of the within authority, the Motion should 

be denied. 

I. RESPONDENT'S EFFORTS TO CIRCUMVENT 

ESTABLISHED PRINCIPLES OF FINALITY 

SHOULD BE DENIED 
  

In his April 12, 1988 Motion to Remand, . respondent 

proposes an end run around established principles of 

finality carefully reflected in the Federal Rules of Civil 

Procedure. Nearly four months after the District Court's 

entry of judgment for petitioner, and almost three months 

after respondent's notice of appeal in this Court, he seeks 

an order remanding this case back to the District Court for 

the receipt of additional evidence or, alternatively, an 

order permitting the record to be supplemented on appeal. 

His motion to remand is procedurally improper. Binding 

precedent in this Circuit requires a party on appeal who 

asserts a claim of "newly discovered evidence” to make 

application, not. to the Court of Appeals, but to the 

  

  

District Court under Rule 60(b). See. e.g9., Wilson v, 

Thompson, 638 F.2d 801, 803 (Sth:Cir., Unit B, 1980)("'this 

circuit ... has expressly recognized power in the district 

court to consider the merits, and deny, a 60(b) motion filed 

after a notice of appeal, because the court's action is in 

  

furtherance of the appeal,'") citing Lairsey v. Advanced 

 



  

Abrasives Co., 542 F.2d 928, 930(5th: Cir,, 1976): accord, 
  

Ferrell v. Trailmobile, 223 F.2d 697 (5th Cir., 1955); AG 
  

Pro, Inc, Vv. Sakraida, 481 TF.24 668 (5th <Cir., 1973); 
  

Parrott v. Wilson, 707 ‘FP.24 1262, at 1266-67, n, 8 (11th 
  

Cir., 1983). Wright & Miller, Federal Practice & Procedure, 
  

§2873. See also, Moore's Federal Practice, 60.30[2]. 
  

Clearly respondent has opted for this unauthorized 

procedure for the most compelling of practical reasons--he 

cannot possibly meet the strict standards of Rule 60(b). 

This Court has recently restated these strict standards in 

Scutieri v. Paige, 808 F.2d 785, 793 (11th Cir,, 1987): 
  

For newly discovered evidence to provide 

a basis for a new trial under subsection 

(b)(2), a party must satisfy a five part 

test: (1) the evidence must be newly 

discovered since the trial; (2) due 

diligence on the part of the movant to 
discover the new evidence must be shown; 

(3) the evidence must not be merely 
cumulative or impeaching; (4) the 
evidence must be material; and (5) the 

evidence must be such that a new trial 
would probably produce a new result. Ag 
Pro, Inc. v. Sakraida, 512 F.24 141, 143 
  

{5th . Cir., 1975), rev'd on other 
grounds, 425 U.S8. 273, 96 S.Ct. '1532,: 47 

L.EAd.28 784 (1976). A motion for a new 
trial under Rule 60(b)(2) is an 
extraordinary motion and the 
requirements must be strictly met. Id. 

Respondent utterly fails to meet any of these Rule 60(b) 

requirements. 

A. Lack of "Newly Discovered Evidence" 
  

As noted above, Evans has given sworn testimony on the 

issue at least three times, and each of those statements was 

 



  

before the District Court. Respondent has made no showing 

that Evans has anything new to say. 

The only ''new evidence" identified by respondent--a 

deposition transcript to which he refers at p. 5 of his 

Motion--is plainly not "newly discovered" by respondent. 

The deposition was apparently taken during a "state habeas 

corpus proceeding" involving another petitioner. By 

respondent's own admission, the same Assistant Attorney 

General involved herein has been involved in the other 

habeas case, apparently long before the August 10 hearing 

below. Respondent cannot, therefore, argue that this 

deposition constitutes newly discovered evidence. 

B. Lack of Diligence 
  

Respondent cannot possibly demonstrate due diligence. 

Although he shrewdly focuses his Motion for Remand on 

petitioner McCleskey's initial efforts to locate Evans, (see 

Motion for Remand, at 2-4), respondent has failed to 

disclose to the Court that he never once sought to call 
  

Evans in the Court below: 

(i) Respondent gave no indication to petitioner, when, 

at the Court's direction it listed the witnesses it would 

call as part of its case, that Evans was a possible witness 

in respondent's rebuttal case (See Motion by McCleskey to 

Prohibit Recall of Witnesses, filed in the District Court 

August 5, 1987);1 

  

1 Respondent's representation to the Court, on these facts, 
that the "evidentiary hearing in the district court was 
conducted in -a two day period of time with an execution date 

5 

 



  

(ii) Respondent did not mention his efforts or desire 

to call Evans during the August 10 rebuttal hearing; 

(iii) Nor did respondent request leave to keep the 

evidentiary record open or to supplement the record even 

after the August hearing. 

Rather than a showing of due diligence, the record 

affirmatively demonstrates a lack of diligence. 

Respondent's witness, Fulton County Assistant Attorney 

Russell Parker, stated under oath not only as respondent 

noted in his motion, that "he thought that Mr. Evans had 

just gotten out of jail and ... that Mr. Evans' ex-wife used 

to work for Dobbs House," (Motion for Remand, at 3), but 

also in the same examination, (selectively quoted by 

respondent), the following: 

THE COURT: Do you know where he is, Mr. 
Parker? You are under oath. 

MR. PARKER: I understand he's just 
gotten out of jail, your honor, but I do 
not know where he is. I assume he's in 

the Atlanta area somewhere. 

  

THE COURT: You have no information or 

leads? 

MR. PARKER: No. I could probably find 
him. I have spent enough time with him. 
  

(Emphasis added). 

Respondent, furthermore, could have moved under Rule 7 

of the Rules Governing Section 2254 Cases to expand the 

record to include respondent habeas corpus deposition of Mr. 

  

pending," (Motion to Remand, at 5) is both incomplete and 

serious misleading. 

 



  

Evans, mentioned in his Motion for Remand (see Id., at 5) 

that he now cites to prove that Mr. Evans' testimony would 

be critical. He did not do so. 

Under these circumstances, respondent surely recognizes 

that he can never demonstrate either ‘'"newly discovered 

evidence" or '"due diligence" to the District Court as Rule 

60(b) requires. As an alternative strategy, therefore, he 

has chosen to attempt a bypass of the District Court 

altogether, and obtain from this Court what he is not 

entitled to under the Federal Rules of Civil Procedure--a 

third chance, beyond the initial July 8-9 hearing and the 

follow-up August rebuttal hearing--to relitigate the facts 

of a constitutional claim he lost below. Moreover, it 

appears unlikely that respondent could show that additional 

testimony from Evans was (i) not cumulative or (ii) such 

that a new hearing would probably produce a new result. 

Inability to do either would defeat a Rule 60(b) motion. On 

this basis then, the motion for remand should be denied. 

II. DIRECT SUPPLEMENTATION OF RECORD IN 

THIS COURT IS ALSO INAPPROPRIATE 
  

Alternatively, respondent has proposed "that this Court 

allow time for the parties to depose Mr. Evans and to 

supplement the record in this Court with that deposition,” 

(Motion for Remand, at 6), relying on the Court's "inherent 

equitable authority to supplement the record in unusual 

circumstances." The suggestion--that this Court authorize 

bypassing entirely the District Court's traditional 

 



  

functions of judging witness credibility and finding facts 

on the basis of credibility determinations--is astonishing 

and unprecedented. 

This Court no doubt has the discretion to supplement 

the record for limited purposes. Dickerson v. Alabama, 667 
  

F.2d 1364 (11th Cir., 1982). In Dickerson, the Court of   

Appeals noted that the omitted item was a state trial 

transcript, and that “the proper resolution of the 

substantive issues in this case. . . . is beyond any doubt." 

567 F. 24 at 1367. 

Here the nature of the material offered and its 

relationship to resolution of the case are far different 

from the cases, like Dickerson, supra, where the Court has 
  

permitted supplementation of the record. Respondent does 

not propose that this Court supplement the record with 

evidence omitted by error, on which each of the parties had 

previously relied. Rather, respondent seeks remand for a 

new deposition. And, respondent does not seek to present 

evidence to confirm a matter 'nmot in serious dispute between 

the parties," but rather to cast doubt on a thorough and 

well-founded opinion by the District Court. on both of 

these grounds, then, this case is outside the limited 

exceptions contemplated by Dickerson. 
  

Nor does Ross Vv. Kemp, 785 F.2d 1467 (13th Cir., 1986}, 
  

the sole authority cited by respondent, support the result 

sought herein. In that case, the Court supplemented the 

record for the limited purpose of deciding whether or not to 

 



  

remand the case for further proceedings on the merits in a 

case where a Rule 60(b) motion was no longer possible. Ross 

Vv. Remp, at 1474-71. 

Here, by contrast, respondent apparently seeks to 

depose Evans for use in this Court in an effort to undermine 

the extensive fact findings which were the basis for the 

District Court's judgment. Conveniently for respondent, 

this would avoid the obvious problems with Mr. Evans' lack 

of credibility.?2 By circumventing the ‘District Court's 

traditional fact-finding and credibility evaluation, 

respondent apparently hopes to have this Court credit a 

witness whose testimony is not credible. 

The District Court's judgment below is based, in large 

part, upon its assessment of the credibility of a former 

Fulton County Chief Deputy jailer, Ulysses Worthy. Worthy 

testified, and the Court found, that Worthy had heard an 

Atlanta police officer, assigned to the McCleskey 

investigation, ask Evans to move to a cell next to McCleskey 

for the purpose of engaging McCleskey in conversation, 

winning his trust, and interrogating him about details of 

the Crime. (Order, at 21-22). Evans' 21 page statement, 

taken together with Worthy's credited testimony, leaves 

little room to dispute the District Court's findings. 

  
2 Evans has been described in the record as "a professional 
snitch," whose word one should "take with a grain of salt." 
(Pet. Ex. 10, at 2). 

 



  

Conclusion 
  

Because respondent has utterly 

for either a remand or supplementation of the record 

appeal, the motion should be denied. 

Respectfully submitted, 

ober XL 0ces 

failed to show grounds 

on 

  

ROBERT H. STROUP 

141 Walton St., ok 

Atlanta, Georgia 30303 

(404) 522-8500 

JOHN CHARLES BOGER 

99 Hudson St. 

New York, N.Y. 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER 

0 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day prior to filing, 

served a copy of the within pleadings upon: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S.. W, 
Atlanta, Georgia 30334 

counsel of record for Respondent, by causing a copy of same to be 

delivered by hand to said counsel at the above address. 

This 21st day, of April, 1988. 

[Robe nt Xe. = N Se 
  ROBERT H. STROUP 

 



  

LAW OFFICES 

STROUP & COLEMAN 

141 WALTON STREET. N. W 
ROBERT HH. STROUP 

ELIZABETH J. COLEMAN ATLANTA, GEORGIA 30303 
TELEPHONE 

1404) 522-8500 

(404) 522-3000 

April 13, 1988 

Mr. Matt Davidson, Deputy Clerk 
United States Court of Appeals 
Eleventh Circuit 
56 Forsyth St., N.W. 
Atlanta, Georgia 30303 

Re: Warren McCleskey v. Ralph Kemp, No. 88-8085 
  

Dear Mr. Davidson: 

This will confirm my telephone conversation with you of this 
afternoon regarding the State's Motion for Remand, which 
apparently was filed yesterday and was received by me in 
this afternoon's mail. You advised me that the motion had 
already been submitted to the Court for consideration. 

I advised you that the petitioner opposed the motion, and 
intended to file a brief in opposition to the motion within 

the ten-day period normally permitted under the Federal 
Rules. I indicated to you that my schedule was extremely 
busy at this time, and my co-counsel in New York will be out 
of the office on business through Thursday of next week. It 
would be virtually impossible to file a response in less 
than the time normally permitted. 

Contrary to any suggestions contained in respondent's brief, 
petitioner believes there are solid factual and legal 
grounds not addressed by the respondent in its motion which 
are grounds for denial of the motion. You advised me that 
the Court would not rule upon this Motion until it had an 

opportunity to consider the petitioner's brief in 
opposition. 

Very truly yours, 

Robert H. Stroup 

RHS/1 

cc: Mary Beth Westmoreland, Esq. 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

NO. 88-3085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 

Cross-Appellant, 

V. 

RALPH KEMP, WARDEN, 

Respondent/Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 
- 

  

MOTION FOR REMAND OR TO 
ALLOW SUPPLEMENTATION OF THE RECORD 

  

MICHAEL J. BOWERS 
Attorney General 

MARION O. GORDON 
First Assistant 

Attorney General 

Please serve: WILLIAM B. HILL, JR. 
Senior Assistant 

MARY BETH WESTMORELAND Attorney General 
132 State Judicial Bldg. 
40 Capitol Square, S.W. MARY BETH WESTMORELAND 
Atlanta, Georgia 30334 Assistant 
(404) 656-3349 Attorney General 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

NO. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 

Cross-Appellant, 

V. 

RALPH KEMP, WARDEN, 

Respondent/Appellant, 

Cross—-Appellee. 

  

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

  

MOTION FOR REMAND OR TO 
ALLOW SUPPLEMENTATION OF THE RECORD 

  

Comes now Ralph Kemp, Warden, Respondent/Appellant, 

Cross-Appellee in the above-styled action, and makes the 

instant motion for this Court to remand the proceedings to 

the district court, prior to briefing and argument in this 

Court, for an additional evidentiary hearing or, in the 

alternative, to allow supplementation of the record in 

this case for the following reasons: 

 



  

The instant proceedings involve a Petition for a writ 

of habeas corpus which the Respondent/Appellant has 

consistently asserted is an abuse of the writ. The 

district court, however, determined that at least an 

allegation as to an alleged violation of Massiah v. United 
  

States, 377 U.S8, 201 (1964), was not an abuse Of the 

writ. In particular, the district court found a Massiah 

violation with relation to the testimony of Offie Evans 

based upon an allegation that Mr. Evans acted as an agent 

of the state in obtaining statements from the 

Petitioner/Appellee. An evidentiary hearing was held 

before the district court at which time various witnesses 

testified, but no testimony was presented from Mr. Evans, 

due to his unavailability. Although Mr. Evans had 

testified at trial ailiat the state habeas corpus hearing, 

no questions were asked of Mr. Evans concerning whether he 

had been an agent of ihe State at the time, or whether he 

had been placed in a particular cell to overhear 

conversations of the Petitioner/Appellee. 

In the hearings before the district court in this 

matter, extensive discussions were had concerning the 

attempts to locate Mr. Evans. At the beginning of the 

hearing on July 8, 1987, the court noted that the federal 

marshall had tried to serve Mr. Evans at his sister's 

 



  

house, but the sister had no idea of his whereabouts. Ir. 

1/8/87 at 3). Petitioner's counsel, Mr. Boger, noted 

subsequently that there were two assistants trying to 

locate Mr. Evans. dd. at 17. Later Mr. Boger announced 

that the subpoena on Mr. Evans had been returned 

unserved. At that time Mr. Boger stated that he thought 

that Mr. Evans was a critical witness and was considering 

applying for a bench warrant. He noted at that time that 

Mr. Evans was a fugitive from probation in Fulton County. 

Id. at 22. The Fulton County assistant district attorney 

also provided the little information he had and Stated 

that he thought that Mr. Evans had just gotten out of jail 

and other than the fact that Mr. Evan's ex-wife used to 

work for the Dobbs House, he had no other leads. Id. at 

174. 

At the hearing on July 9, 1987, Mr. Boger noted that 

he had a "modest" load 2nd was hopeful to find Mr. Evans 

that day although other leads had proven unsuccessful. 

(T. 7/9/87 at 3). Subsequently that day, the court 

specifically noted that the only witness that was germane 

to the issue that had not been called to testify was Offie 

Evans. Mr. Stroup, counsel for Petitioner/Appellee, noted 

that they had sent out a private investigator who was a 

former F.B.I. agent who had been unable to locate Mr. 

Evans. ‘Mr. Stroup also noted that they had not had the 

 



  

opportunity to cross-examine Mr. Evans with his prior 

written statement. Id. "at 135, 

From the above it was clear that Mr. Evans was 

unavailable at the time of the Proceedings in the district 

court, but was considered to be a critical witness by the 

court and counsel for the Petitioner/Appellee in the 

presentation of the case. It developed subsequently, that 

Mr. Evans testimony definitely was crucial to the issues 

being raised, but it was simply unavailable. 

On Monday, April 11, 1988, counsel for the 

Respondent/Appellant learned for the first time that Mr. 

Evans was back in Fulton County Jail. Mr. Evans is 

apparently presently in Fulton County Jail on other 

charges. 

Due to the circumstances of the instant proceeding, 

the fact that the parties deemed Mr. Evans’ testimony to 
,,- 

be crucial to the district court proceedings and, in fact, 

the district court deemed Mr. Evans’ testimony to be 

important as to those proceedings and the fact that Mr. 

Evans was unavailable in spite of the efforts by even a 

private investigator and through no cause of the State, 

Respondent/Appellee specifically requests this Court at 

this time to remand the proceedings to the district court 

SO that Mr. Evans, who is now available, can present 

testimony to the district court on the issue on which 

 



  

relief was granted. in further support of this request, 

below-signed counsel would note that counsel is also 

counsel of record in the case involving Petitioner's 

codefendant, Bernard Depree. In that case, Mr. Evans gave 

a deposition in the state habeas corpus proceeding which 

testimony would relate to the Massiah claim. Based upon 

the testimony given by Mr. Evans at that time, present 

counsel feels that his testimony may very well be critical 

to a resolution of the issue before this Court. As that 

deposition was taken by different parties in a different 

proceeding, it has not been submitted to the court in the 

instant case, but is available should this Court wish to 

review it. 

It should be noted that Respondent is not waiving the 

claim of abuse of the writ by requesting the remand, but 

is seeking to have all pertinent information before the 

court, including atl ‘available evidence on the key issue, 

before the issue is finally resolved. Due to the unusual 

Clrcumstances of this case, the fact that the evidentiary 

hearing in the district court was conducted in a two day 

period of time with an execution date pending only a few 

days away, the fact that Mr. Evans’ unavaillabililty was 

through no fault of the state, and the fact that Mr. Evans 

has just now become available, Respondent Specifically 

requests that this Court remand the proceeding to the 

 



  

district court with directions to conduct an additional 

hearing solely for the purpose of the presentation of the 

testimony of Mr. Evans and for no other purpose, In the 

alternative, Respondent requests that this Court allow 

time for the parties to depose Mr. Evans and to sup T e
d
 

( =3 Md 5 ct
 

the record in this Court with that deposition. This Court 

clearly has inherent equitable authority to supplement the 

record in unusual circumstances. See Ross v. Kemp, 785 
  

F.20.:1467, 1474 (11th Cir. 1936). Certainly, under the 

circumstances of the instant case equitable principles as 

well as the ends of justice strongly weigh in favor of 

either a remand or the allowance of a supplementation of 

the record by a deposition yet to be taken of Mr. Evans. 

WHEREFORE, Respondent prays that the relief requested 

in the instant motion be granted. Respondent would also 

request that this motion be reviewed expeditiously due to 

the fact that Respondent's brief is presently due in this 

Court. on May 9, 14988. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

MARION O. GORDON 302300 
First Assistant Attorney General 

 



  

MARY BETH 

132 State 
40 Capito 

Atlanta, 

(404) 656- 

WESTMORELAND 

: . 
aw 15. HU 
    

  

Judicial Building 

l Square,.S. 

Georgia 303 

3349 

, 

Ww, ’ aS 
po 4s ya ig i 

WiLLLIAM B. HILL, Tir F~ 354725 
Senior Assistant Attorney General 

7 
Vn NN) A 14 / vo 

[Lr Lh YAALL Leh 0 LL AEE A A 
MARY / BETH WESTMORELAND ST 
Assigtant Attorney General 

 



  

  

I do hereby certify that I have this day 

in and foregoing motion, prior to filine 

by depositing a copy thereof, postage prepaid, in 

tates Mail, properly addressed upon: 

ners H. Stroup 
41 Halten Street 

=
 

John Charles Boge 

99 Hudson Street 

New York, New York 10013 

J
 

>
 

pe
t nn
 Lh day. of April, 193%   

A or 

N27 Leth [Lo > brlonee. tr v4 
  

/ 

MARY Wil TH WESTMORELAND 

Assiqf/ant Attorney General 

 



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, N.W. 

: Atlanta, Georgia 30303 hy 
Miguel J. Cortez May 10, 1988 In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

No. 88-8085 - WARREN MCCLESKEY V. RALPH KEMP 

  

The following action has been taken in the referenced case: 

XX The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing a reply brief. 

for filing a petition for rehearing, which is due to be 
filed in the clerk's office on said date. 

for filing 
  

this extension is granted subject to the condition that 
no additional extensions will be requested by the movant 
and that the specified document will be filed on or before 
this new date. | 

Motion to consolidate granted. 

Motion to supplement or cerrect the record granted. 

Sincerely, 

MIGUEL J. COBIEZ. Clerk 

By: Wi tt nen 
Deputy Clerk 
  

MOT-2 
7/87 

cc: Mary Beth Westmorealnd, Esq. 

Robert Stroup, Esq. 
John CharlesBoger, Esq. 

 



  

FiLeD 
U.S. COURT OF APPEALS 

ELEVENTH C7011 Fr a no mega g 

May 988 

FOR THE ELEVENTH CIRCUIT | MIGUEL J, CORTEZ 
| | CLERK 

  

"IN THE UNITED STATES COURT OF APPEALS 
    

  

No. 88-8085 

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 
Cross-Appellant, 

Versus 

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

Respondent-Appellant, 
Cross-Appellee. 

- een am an am a aw ar ws BF FE) AS EE EN ar am meas ws WW ER VS AE am 

Appeals from the United States District Court for the 

Northern District of Georgia 
vv we vd SB Sm Sm Ee WS SE wR Er ar we Gb FR AR ER Em ap ae a a ww 

ORDER: 

Appellant's motion to stay the briefing schedule is 

Fred - 

  

  

Gee Ag 
UNITED STATES CIRCUIT JUDGE