SCOTUS ('91) - Attorney's Working Files - General (Redacted)
Working File
June 16, 1987 - August 7, 1991
105 pages
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Case Files, McCleskey Background Materials. SCOTUS ('91) - Attorney's Working Files - General (Redacted), 1987. a485f0c8-5dcc-ef11-8ee9-6045bddb7cb0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a5040c6d-77c2-4fd1-91ac-fe088d690023/scotus-91-attorneys-working-files-general-redacted. Accessed October 09, 2025.
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MEMORANDUM
TO: Professor Boger
FROM: Michele Harrington
DATE: August 7, 1991
: Res Judicata Considerations in McClesky
ISSUE I: What is the general law regarding res judicata and
collateral estoppel in State of Georgia?
DISCUSSION: Pursuant to section 9-12-40 of the Official Code
of Georgia Annotated:
A judgment of a court of competent jurisdiction shall
be conclusive between the same parties and their
privies as to all matters put in issue or which under
the rules of law might have been put in issue in the
cause wherein the judgment was rendered until the
judgment is reversed or set aside.
Ga. Code Ann. § 9-12-40 (1982).
Georgia cases frequently recite this statute to state the
proposition of law regarding res judicata. See, e.g., Norris v.
Atlanta & West Point R.R. Co., 254 Ga. 684, 333 S.E.2d 835, 837
(1985); Usher v. Johnson, 157 Ga. App. 420, 421, 278 S.E.2d 70,
72 (1981). Elements affecting the strength of a res judicata
claim include: 1) a valid antecedent judgment; 2) identity of
parties; 3) identity of issues or cause of action; and 4) public
policy considerations concerning strict application. Fierer v.
Ashe, 147 Ga. App. 446, 4A8, 249 S.PB.24 270, 272 (1978). In
addition, a prior decision on the merits is necessary for the
doctrine of res judicata to apply. Norris, 254 Ga. at 684, 333
S.E.24 at 837.
2
Res judicata is similar to collateral estoppel in that both
require two actions between the same parties or their privies.
Id.: Usher, 157 Ga. App. at 421, 278 S.E.2d at 72. Collateral
estoppel differs, however, in that it does not involve the
adjudication of identical causes of action. Id. Rather,
collateral estoppel may be asserted when a party attempts to
relitigate an issue which has previously been decided. Id.
ISSUE II: What are the policy reasons behind res judicata
and collateral estoppel which would potentially prevent the State
from relitigating the factual findings of Judge Forrester?
DISCUSSION: In McNeal v. Paine, Webber, Jackson & Curtis,
Inc., 249 Ga. 662, 293 S.E.2d 331 (1982), the plaintiff sued the
defendant securities-dealer in federal court, claiming damages
resulting from violations of the Securities Exchange Act of 1934.
Id. The plaintiff also sued Paine, Webber and one of its
employees in state court alleging the same violations. Id.
After the defendant securities-dealer received a favorable
verdict in the federal action, the court held the plaintiff was
barred from relitigating his claim in state court. The court
stated:
To allow this case to proceed against [the employee]
would create a framework under which a plaintiff could
consciously design a legal strategy which would allow
him two shots at the same target. In gaming and sports
there may be such a thing as the best two out of three,
but not even those circles recognize the best one out
of two.
Id. at 664, 293 S.E.24 at 333.
3
Similarly, in a divorce action wherein the plaintiff argued
a prior proceeding was "merely a nullity," the Georgia Supreme
Court stated that "[n]o party, plaintiff or defendant, is
permitted to stand his case before the court on some of its legs,
and if it falls, set it up again on the rest in a subsequent
proceeding, and thus evade the bar of former judgment." Booker
Y. Booker, 107 Ga. App. 339, 441, 130 S.E.2d 260, 262 (1963).
ISSUE III: Does Georgia case law indicate that state courts
are required to honor the judgments or findings of federal courts
made in cases adjudicating the same cause of action or issues,
and visa versa?
DISCUSSION: State courts are expected to give full faith and
credit to the judgments of federal court. 28 U.S.C. §1738
(1948). Thus, state courts must afford federal judgments at
least the same preclusive effect as would be afforded to a state
judgment. See Pope v. City of Atlanta, 240 Ga. 177, 186, 240
S.E.2d 241, 246 (1977) (Hall, J., dissenting). In Paine, the
plaintiff attempted to bring an action based on the same alleged
violations of the Securities Exchange Act of 1934 in both federal
and state court. Paine, 249 Ga. at 663, 293 S.E.2d at 332. The
court found that because the federal court could have exercised
pendant jurisdiction over the state claims, res judicata barred
the plaintiff from adjudication in state court. Id.
The plaintiff in Chilivis v. Dasher, 236 Ga. 669, 225 S.E.2d
32 (1976), raised federal and state constitutional claims in
4
federal court and subsequently attempted to relitigate the state
claims in state court. Id. at 669-70, 225 S.E.2d at 33. The
Georgia Supreme Court held that because identical state
constitutional questions were adjudicated in federal court, the
judgment of that court had a binding res judicata and collateral
estoppel effect; therefore, a state action was barred. Id. at
670, 225 S.E.24 at 33-34.
ISSUE IV: Does the State have a valid argument that McClesky
is bound by the court’s findings in the trial of his co-
defendant?
DISCUSSION: McClesky should not be bound by the findings of
his co-defendant’s trial because he was not a party to that
proceeding. As stated above, the proceedings must occur between
identical parties or their privies for res judicata or collateral
estoppel to apply. Norris, 254 Ga. at 685, 333 S.E.2d at 837;
Ga. Code Ann. 9-12-40 (1982); Blackburn v. Blackburn, 168 Ga.
App. 66, 72, 308 S.E.2d 193, 198 (1983). For instance, Blackburn
involved, first, a child custody action between the mother and
the paternal grandmother and, second, a child custody action
between the mother and the father. Blackburn, 168 Ga. App. at
66-67, 308 S.E.2d at 194-195. The court held that the father’s
claim for custody was not barred by the determination in the
first action that the mother was not an unfit parent because he
did not participate in that lawsuit. qd. at. 72, 308 S.E.2d4 at
198.
Additionally, the doctrine of mutuality of estoppel may
pertain to the present case. In Porterfield v. Gilmer, 132 Ga.
App. 463, 208 S.E.24 295 (1974), aff'd, 233 Ga. 671, 212 S.E.24
842 (1975), the plaintiff attempted to capitalize on findings of
negligence in a prior suit to which the defendant was not a
party. Id. at 464, 208 S.E.24 at 296. The court held that "if a
judgment cannot be effective as res judicata against a person, he
may not avail himself of the adjudication and contend that it is
available to him as res judicata against others." Id. at 466,
208 S.E.2d at 297. On appeal, the Georgia Supreme Court found
that a lack of mutuality would not preclude the plaintiff from
asserting collateral estoppel; nevertheless, a lack of privity
would act as a bar. Porterfield v. Gilmer, 233 Ga. 671, 674-75,
212 S.E.2d 842, 844 (1975).
The holding of Porterfield may be applicable only to cases
involving separate lawsuits against an employee and his employer,
as derivative liability represents a traditional exception to the
requirement of mutuality of estoppel. For example, in Subsequent
Injury Trust Fund v. Alterman Foods, Inc., 162 Ga. App. 428, 291
S.E.2d 758 (1982), a workers’ compensation action, the court
stated that lack of mutuality was a valid reason for denying the
res judicata effect of a previous finding. Id. at 429, 291
S.E.24 at 760.
ISSUE V: Can the State successfully contend that the
appellate court’s expression that a Massiah violation would
constitute harmless error bars McClesky from reviving the issue
based on the doctrine of collateral estoppel?
DISCUSSION: If the appellate court’s findings regarding
harmless error are in fact dictum, claims of res judicata or
collateral estoppel against McClesky should fail. Collateral
estoppel requires not only that an identical issue has been
actually litigated, but also that the ruling on that issue be
essential to the final judgment. Usher, 157 Ga. App. at 421, 278
S.E.2d at 72. "[T]here is estoppel by judgment only as to such
matters within the scope of the previous pleadings as necessarily
had to be adjudicated in order for the previous judgment to be
rendered." Id.
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY x ClVIii, ACTION NO,
: % 91-V-3669
Petitioner, * 3
* HABEAS CORPUS
Vv. x
: -
WALTER D. ZANT, WARDEN, x
x
Respondent. %
ISSUE 1: What is the general law regarding res judicata and
collateral estoppel in State of Georgia?
DISCUSSION: Pursuant to section 9-12-40 of the Official Code
of Georgia Annotated:
A judgment of a court of competent jurisdiction shall
be conclusive between the same parties and their
privies as to all matters put in issue or which under
the rules of law might have been put in issue in the
cause wherein the judgment was rendered until the
judgment is reversed or set aside.
Ga. Code Ann. § 9-12-40 (1982).
Georgia cases frequently recite this statute to state the
proposition of law regarding res judicata. See, e.g., Norris v.
atisnta & West Point R.R. Co., 254 Ga. 684, 333 S.B.24 835, 837
«
(1985); Usher v. Johnson, 157 Ga. App. 420, 421, 278 S.E.2d4 70,
72 (1981). Elements affecting the strength of a res judicata
claim include: 1) a valid antecedent judgment; 2) identity of
parties; 3) identity of issues or cause of action; and 4) public
policy considerations concerning strict application. Fierer v.
Ashe, 147 Ga. App. 446, 448, 249 S.E.2d 270, 272 (1978). In
addition, a prior decision on the merits is necessary for the
doctrine of res judicata to apply. Norris, 254 Ga. at 684, 333
S.E.24 at 837.
2
Res judicata is similar to collateral estoppel in that both
require two actions between the same parties or their privies.
Id.: usher, 157 Ga. App. at 421, 278 S8.E.24 at 72... Collateral
estoppel differs, however, in that it does not involve the
adjudication of tdenticel causes of action. Id. Rather,
collateral estoppel may be asserted when a party attempts to
relitigate an issue which has previously been decided. Id.
ISSUE II: What are the policy reasons behind res judicata
and collateral estoppel which would potentially prevent the State
from relitigating the factual findings of Judge Forrester?
DISCUSSION: In McNeal v. Paine, Webber, Jackson & Curtis,
Inc,, 249 ga, 662,:293 3. E.2d 331 (1982), the plaintiff sued the
defendant securities-dealer in federal court, claiming damages
resulting from violations of the Securities Exchange Act of 1934.
Id. The plaintiff also sued Paine, Webber and one of its
employees in state court alleging the same violations. Id.
After the defendant securities-dealer received a favorable
verdict in the federal action, the court held the plaintiff was
barred from relitigating his claim in state court. The court
stated:
To allow this case to proceed against [the employee]
would create a framework under which a plaintiff could
consciously design a legal strategy which would allow
him two shots at the same target. In gaming and sports
there may be such a thing as the best two out of three,
but not even those circles recognize the best one out
of two.
Id. at 664, 293 sS.B.2d4 at 3233.
3
Similarly, in a divorce action wherein the plaintiff argued
a prior proceeding was "merely a nullity," the Georgia Supreme
Court stated that "[n]o party, plaintiff or defendant, is
permitted to stand his case before the court on some of its legs,
and if it falls, set it up again on the rest in a subsequent
proceeding, and thus evade the bar of former judgment." Booker
vy. Booker, 107 Ga. App. 339, 441, 130 S.E.2d4 260, 262 (1963).
ISSUE 111: Does Georgia case law indicate that state courts
are required to honor the judgments or findings of federal courts
made in cases adjudicating the same cause of action or issues,
and visa versa?
DISCUSSION: State courts are expected to give full faith and
credit to the judgments of federal court. 28 U.S.C. §1738
(1948). Thus, state courts must afford federal judgments at
least the same preclusive effect as would be afforded to a state
judgment. See Pope v. City of Atlanta, 240 Ga. 177, 186, 240
S.BE.24 241, 246 (1977) {Hall, J., dissenting). In Paine, the
plaintiff attempted to bring an action based on the same alleged
violations of the Securities Exchange Act of 1934 in both federal
and state court. Paine, 249 Ga. at 663, 293 S.E.24 at 332. The
court found that because the federal court could have exercised
pendant jurisdiction over the state claims, res judicata barred
the plaintiff from adjudication in state court. Id.
The plaintiff in Chilivis v. Dasher, 236 Ga. 669, 225 S.E.2d
32 (1976), raised federal and state constitutional claims in
A
federal court and subsequently attempted to relitigate the state
claims in state court. Id. at 669-70, 225 S.F.24 at 33. The
Georgia Supreme Court held that because identical state
constitutional questions were adjudicated in federal court, the
judgment of that court had a binding res judicata and collateral
estoppel effect; therefore, a state action was barred. Id. at
670, 225 S.B.2d at 33-34.
ISSUE IV: Does the State have a valid argument that McClesky
is bound by the court’s findings in the trial of his co-
defendant?
DISCUSSION: McClesky should not be bound by the findings of
his co-defendant’s trial because he was not a party to that
proceeding. As stated above, the proceedings must occur between
identical parties or their privies for res judicata or collateral
estoppel to apply. Norris, 254 Ga. at 685, 333 S.E.24 at 837;
Ga. Code Ann. 9-12-40 (1982); Blackburn v. Blackburn, 168 Ga.
App. 66, 72, 308 3.E.2d 193, 198 (1983). For instance, Blackburn
involved, first, a child custody action between the mother and
the paternal grandmother and, second, a child custody action
between the mother and the father. Blackburn, 168 Ga. App. at
66-67, 308 S.E.2d at 194-195. The court held that the father’s
claim for custody was not barred by the determination in the
first action that the mother was not an unfit parent because he
did not participate in that lawsuit. Id. at 72, 308 S.E.2d at
198.
Additionally, the doctrine of mutuality of estoppel may
pertain to the present case. In Porterfield v. Gilmer, 132 Ga.
App. 463, 208 S.E.2d 295 (1974), arf’q, 233 Ga. 671, 212 S.E.2d4
842 (1975), the plaintiff attempted to capitalize on findings of
negligence in a prior suit to which the defendant was not a
party. Id. at 464, 208 S.E.23 at 296. The court held that "if a
judgment cannot be effective as res judicata against a person, he
may not avail himself of the adjudication and contend that it is
available to him as res judicata against others." Id. at 466,
208 S.E.2d at 297. On appeal, the Georgia Supreme Court found
that a lack of mutuality would not preclude the plaintiff from
asserting collateral estoppel; nevertheless, a lack of privity
would act as a bar. Porterfield v, Gilmer, 233 Ga. 67), 674-75,
212 S.E.2d 842, 244 (1975).
The holding of Porterfield may be applicable only to cases
involving separate lawsuits against an employee and his employer,
as derivative liability represents a traditional exception to the
requirement of mutuality of estoppel. For example, in Subsequent
Injury Trust Fund v. Alterman Foods, Inc., 162 Ga. App. 428, 291
S.E.2d 758 (1982), a workers’ compensation action, the court
stated that lack of mutuality was a valid reason for denying the
res judicata effect of a previous finding. Id. at 429, 291
S.E.24 at 760.
ISSUE V: Can the State successfully contend that the
appellate court’s expression that a Massiah violation would
constitute harmless error bars McClesky from reviving the issue
based on the doctrine of collateral estoppel?
DISCUSSION: If the appellate court’s findings regarding
harmless error are in fact dictum, claims of res judicata or
collateral estoppel against McClesky should fail. Collateral
estoppel requires not only that an identical issue has been
actually litigated, but also that the ruling on that issue be
essential to the final judgment. Usher, 157 Ga. App. at 421, 278
S.E.2d at 72. "[T]here is estoppel by judgment only as to such
matters within the scope of the previous pleadings as necessarily
had to be adjudicated in order for the previous judgment to be
rendered." Id.
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GEORGIA RESOURCE CENTER
920 Ponce de Leon Avenue N.E.
Atlanta, Georgia 30306
FAX: (404) 898-2074 \ = 2% 9 (404) 898-2060
MEMORANDUM
70: Professor Boger
FROM: Michele Harrington
DATE: August 7, 1991
RE: Res Judicata Considerations in McClesky
ISSUE I: What is the general law regarding res judicata and
collateral estoppel in State of Georgia?
DISCUSSION: Pursuant to section 9-12-40 of the Official Code
of Georgia Annotated:
A judgment of a court of competent jurisdiction shall
be conclusive between the same parties and their
privies as to all matters put in issue or which under
the rules of law might have been put in issue in the
cause wherein the judgment was rendered until the
judgment is reversed or set aside.
Ga. Code Ann. § 9-12-40 (19_).
Georgia cases frequently recite this statute to state the
proposition of law regarding res judicata. See, e.g., Norris v.
Atlanta & West Point R.R. Co,, 284 Ga, 684, , 333 s5.E.24 835,
837 (1985); Usher v. Johnson, 157 Ga. App. 420, __ , 278 S.E.2d
70, 72 (1981). Elements affecting the strength of a res judicata
claim include: 1) a valid antecedent judgment; 2) identity of
parties; 3) identity of issues or cause of action; and 4) public
policy considerations concerning strict application. Fierer v.
aAghe, 147 Ca. App. 446, __, 249 8.8.24 270, 272 (1978). In
addition, a prior decision on the merits is necessary for the
doctrine of res judicata to apply. Norris, 254 Ga. at __, 333
S.E.24 at 837.
2
Res judicata is similar to collateral estoppel in that both
require two actions between the same parties or their privies.
Id.: Usher, 157 Ga. App. at _, 278 S.E.2d at 72. Collateral
estoppel differs, however, in that it does not involve the
adjudication of identical causes of action. Id. Rather,
collateral estoppel may be asserted when a party attempts to
relitigate an issue which has previously been decided. Id.
ISSUE II: What are the policy reasons behind res judicata
and collateral estoppel which would potentially prevent the State
from relitigating the factual findings of Judge Forrester?
DISCUSSION: In McNeal v. Paine, Webber, Jackson & Curtis,
Inc., 249 Ga. 662, 293 S.E.2d 331 (1982), the plaintiff sued the
defendant securities-dealer in federal court, claiming damages
resulting from violations of the Securities Exchange Act of 1934.
Id. at __, 293 S.E.2d at 331. The plaintiff also sued Paine,
Webber and one of its employees in state court alleging the same
violations. Id. After the defendant securities-dealer received
a favorable verdict in the federal action, the court held the
plaintiff was barred from relitigating his claim in state court.
The court stated:
To allow this case to proceed against [the employee]
would create a framework under which a plaintiff could
consciously design a legal strategy which would allow
him two shots at the same target. In gaming and sports
there may be such a thing as the best two out of three,
but not even those circles recognize the best one out
of two.
293 S.E.24 at 333. Id. at Sh Be — |
3
Similarly, in a divorce action wherein the plaintiff argued
a prior proceeding was "merely a nullity," the Georgia Supreme
Court stated that "[n]o party, plaintiff or defendant, is
permitted to stand his case before the court on some of its legs,
and if it falls, set it up again on the rest in a subsequent
proceeding, and thus evade the bar of former judgment." Booker
Y. Booker, Ga. 130 S.F.24 260, 262 (1963). — —
ISSUE III: Does Georgia case law indicate that state courts
are required to honor the judgments or findings of federal courts
made in cases adjudicating the same cause of action or issues,
and visa versa?
DISCUSSION: State courts are expected to give full faith and
credit to the judgments of federal court. Stoll v. Gottlieb, 305
U.S. 165, 167 (1938); 28 U.S.C. $1738 (19__). Thus, state courts
must afford federal judgments at least the same preclusive effect
as would be afforded to a state judgment. Stoll, 305 U.S. at
167. In Paine, the plaintiff attempted to bring an action based
on the same alleged violations of the Securities Exchange Act of
1934 in both federal and state court. Paine, 249 Ga. at __, 293
S.E.2d at 332. The court found that because the federal court
could have exercised pendant jurisdiction over the state claims,
res judicata barred the plaintiff from adjudication in state
court. Id.
ISSUE IV: Does the State have a valid argument that McClesky
is bound by the court’s findings in the trial of his co-
defendant?
DISCUSSION: McClesky should not be bound by the findings of
his co-defendant’s trial because he was not a party to that
proceeding. As stated above, the proceedings must occur between
identical parties or their privies for res judicata or collateral
estoppel to apply. Norris, 254 Ga. at __, 333 S.E.2d at 837; Ga.
Code Ann. 9-12-40 (19__):; Blackburn v. Blackburn, 168 Ga. App.
66, __, 308 S.E.2d 193, 198 (1983). Por instance, Blackburn
involved, first, a child custody action between the mother and
the paternal grandmother and, second, a child custody action
between the mother and the father. Blackburn, 168 Ga. App. at
__, 308 S.E.2d at 194-195. The court held that the father’s
claim for custody was not barred by the determination in the
first action that the mother was not an unfit parent because he
did not participate in that lawsuit. Id. at 308 s.E.2d4 at
198.
Additionally, the doctrine of mutuality of estoppel is
prominent in Georgia law. In Porterfield v. Gilmer, 132 Ga. App.
463, 208 S.E.2d 295 (1974), the plaintiff attempted to capitalize
on findings of negligence in a prior suit to which the defendant
was not a party. Id. at _ , 208 S.E.24 at 296. The court held
that because the defendant was not bound by the previous
judgment, he was not bound by the findings in that case. d. at
__, 208 S.E.2d at 297. "[I]f a judgment cannot be effective as
res judicata against a person, he may not avail himself of the
adjudication and contend that it is available to him as res
judicata adainst others." Id. at... , 208 S.E.2d4 at 297.
ISSUE V: Can the State successfully contend that the
appellate court’s expression that a Massiah violation would
constitute harmless error bars McClesky from reviving the issue
based on the doctrine of collateral estoppel?
DISCUSSION: If the appellate court’s findings regarding
harmless error are in fact dictum, claims of res judicata or
collateral estoppel against McClesky should fail. Collateral
estoppel requires not only that an identical issue has been
actually litigated, but also that the ruling on that issue be
essential to the final judgment. Usher, 157 Ga. App. at __, 278
S.E.2d at 72. "[T]here is estoppel by judgment only as to such
matters within the scope of the previous pleadings as necessarily
had to be adjudicated in order for the previous judgment to be
rendered." Id.
MASTED-
Draft 7/25/91
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY, * CIVIL ACTION NO.
Petitioner, * 91-V-3669
*
VS. *
WALTER D. ZANT, Warden,
Georgia Diagnostic &
Classification Center,
Respondent.
HABEAS CORPUS
%
*
*
%
PETITIONER’S MEMORANDUM OF LAW
IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS
COMES NOW petitioner Warren McCleskey, by his undersigned
counsel, and files this memorandum of law in opposition to
respondent's Motion to Dismiss, dated July 5, 1991. As we will
demonstrate, respondent's motion is legally insufficient and
should be denied, for three reasons:
(i) First, as a matter of law, respondent relies on
principles of res judicata that do not avail him. Under settled
Supreme Court precedent, see, e.g. Smith v. Zant, 250 Ga. 645,
652, 301 S.E.24 32, 37 (1983); cf. Nelgon v, Zant, Ga. (No,
91A0524) _ li res judicata has no application to this
case. Petitioner's’constitutional claim is based on newly
available evidence that was withheld from him by State actors a
the time of his previous applications. The Supreme Court has
unmistakably affirmed the right of an applicant to bring forward
such a claim, even on a successive application:
The defendant has a right to rely on the accuracy of
the trial testimony of the state's witness where the
truth or falsity of his testimony is peculiarly within
the knowledge of the state and the state is under a
duty to reveal false testimony. Thus, we find
unpersuasive the state's argument that the defendant
should have discovered the state's breach of duty.
Smith v. Zant, 250 Ga. at 652.
(ii) Second, respondent's motion to dismiss depends on
factual grounds that are irrelevant or untimely. Respondent's
I ———
twin factual arguments appear to be (a) that petitioner's
evidence is not "newly available," but was instead readily
discoverable in 1987 or earlier, and (b) that the totality of
petitioners's evidence does not suffice to prove a violation of
Massiah v. United States, 2 U.S. 201 (1964). H prey Wr
As—te® respondent's rivet argument, e) ith-v. Zah Jestablishes
petitioner's burden of proof binder 0.,.C.G.A. § 9=14~5 hat
rds ) Nous
berden-is—met—by petitioner well-pleaded allegations that State
officials, although aware of the underlying misconduct one hay
now complains of, failed to Sen Tt ~ Trial .() Respondent" ss
second factual argument -- that the record facts do Boing uffice hy
3 cleally i an A
make out a Massiah violation -- gees—directly-te—the merits of
petitioner's claim. Georgia law is clear that motions to dismiss
ih
are not the proper vehicle for resolution of the merits. £5
Yori ois well-pleaded allegations =—-- supported by sworn 7
cai and affidavits -- oe. soso
a classic violation of Massiah and United States v. Henry, 447
on, Ul Gung lao
U.S. 264 (1930) i itl A final decision on
?
these issues must abide the development of a full factual record.
(iii) Finally, respondent's claim that any Massiah claim
was "harmless error" likewise depends upon this Court's
consideration of a full factual record that has not yet been
placed before the Court. What is clear, at present, is that
United States District Judge J. Owen Forrester -- the Sta Juve
who an BNE vary the relevant witnesses -- found that
[o]nce the fact of the Massiah violation in this case
is accepted, it is not possible to find that the error
was harmless. A review of the evidence presented at
the petitioner's trial reveals that [informant Offie]
Evans' testimony about the petitioner's incriminating
statements was critical to the state's case. There
were no witnesses to the shooting and the murder weapon
was never found. The bulk of the state's case against
the petitioner was three pronged: (1) evidence that
petitioner carried a particular gun on the day of the
robbery that most likely fired the fatal bullets; (2)
testimony by co-defendant Ben Wright that petitioner
pulled the trigger; and (3) Evans' testimony about
petitioner's incriminating statements. As petitioner
points out, the evidence on petitioner's possession of
the gun in question was conflicting and the testimony
of Ben Wright was obviously impeachable. . . . Because
the court cannot say, beyond a reasonable doubt, that
the jury would have convicted petitioner without Evans'
testimony about petitioner's incriminating statements,
petitioner's conviction for the murder of Officer
Schlatt must be reversed pending a new trial.
St. Hab. Pet., Exh. D, 29-31.
In addition, sworn affidavits from two of McCleskey's twelve
trial now confirm Judge Forrester's finding. These jurors aver
without hesitation: that Offie Evans was the key witness to the
identity of the murderer; that the jury's based its death
sentence largely on Evans' testimony; that the jury's reliance on
Evans stemmed from his apparent role as a disinterested witness;
that, had Offie Evans' secret relations with the police been
disclosed, at least two jurors would never have voted to convict
McCleskey of malice murder; and that, moreover, these jurors
3
would have held fast against imposition of a death sentence.
Given this sworn testimony from the jurors themselves, there is
no need to rely on second-hand speculations from persons who
weren't there: jurors who heard and decided the case assure us
that the State's use of Evans' testimony, far from "harmless
error," was the master stroke that sent McCleskey to Death Row.
ean
SINCE STATE ACTORS WITHHELD CRUCIAL EVIDENCE
OF THEIR OWN UNCONSTITUTIONAL CONDUCT ,
PREJUDICIZ RT. T0_ PETITIONERS REAL THE
ENT QUIRES THIS
COURT TO HEAR PETITIONER’S PRESENT CHALLENGE
ON ITS MERITS -- DESPITE HIS PRIOR {{A¥<
APPLICATIONS AND WITHOUT ANY RES JUDICATA BAR
QS ang
Respondent's principal legal argument is i :
"[Ulnder the principles of res judicata, this Court should
decline to review [petitioner's] issue." (Resp. Br. 1).! At
first glance, the controlling statute, 0.C.G.A. § 9-14-55],
hes
appears to support It provides:
All grounds for relief claimed by a petitioner for a
writ of habeas corpus shall be raised by a petitioner
in his original or amended petition. Any grounds not so
raised are waived, . . .
However, the statute does not stop with a general
bth ipe o b. 0 a
declaration of waiver, I create” two important
RA
exceptions to the Ny rulep M Fjune. demixal UA Lex
! Each reference to respondent's Motion to Dismiss and
Brief in Support, dated July 5, 1991, will be indicated by the
abbreviation "Resp. Br." followed by the number of the page on
which the reference may be found.
%
7
[i] umtess the Constitution of the United States or of
this state otherwise requires or [ii] unless any judge
to whom the petition is assigned, on considering a
subsequent,_petition, finds grounds fo i8T asserted
therein which could not reasonably have been raised in
the original or amended petition: 54
: Sat
The meaning of the second exception -- es a
state habeas court to NRTA A et ae any claim "which
could not reasonably have been raised" -- was authoritatively
Se ——
interpreted/by the Supreme Court of Georgia in snith v.
zant, 250 Ga. 645, 301 S.BE. 24 32 (19383) ./The
: : Severo a
circumstances 1n SL em EY. thi Ss Court
eA ' Eon /
since they are nearly identical to those at issue here.
John Eldon Smith, a death-sentenced Georgia inmate,
unsuccessfully sought state habeas _corpus relief in 1977. Six
ng fedast dani 2%
years later, in gay yowira returned to the state habeas courts
and asserted additional constitutional claims, including a claim
based upon newly discovered evidence. He alleged that the
prosecuting attorney and a key State witness had made a deal, in
aviege violation of Giglio v. United States, 405 U.S. 150 LLS72IA
2 )
and Napue v, Illinois, 360 U.S. 264 (1959). _See Smith v. Zant,
250 Ga. at 645-646; id. at 650.7
Although Smith's 1983 petition was summarily dismissed by
the Superior Court, the Georgia Supreme Court granted Smith's
application for a certificate of probable cause. Following oral
2 smith had alleged in his second application that, in
1982, the defense team had obtained an admission from the
attorney who prosecuted Smith's case that he had failed to
disclose a pre-trial promise of leniency made to a key State's
witness. The witness had denied, during cross-examination at
trial, any such relationship. Smith v. Zant, 250 Ga. at .
5
argument, the Supreme Court affirmed the dismissal of most of
Smith's claims under 0.C.G.A. § 9-14-51. Id., 250 Ga. at 646.
However, Chief Justice Hill, writing for a unanimous Court,
remanded Smith's claims under Giglio and nape £65 a full hearing
on their merits.
In granting Smith a full hearing, the Court brushed aside
the State's defense -- the same defense now asserted by the State
in McCleskey's case -- that Smith's defense attorneys should have
uncovered any alleged State misconduct earlier. The Court's
analysis is quoted in full:
The state did not meet petitioner's false
testimony claim on its merits, but defended
on the ground of waiver, contending that,
with due diligence, the defense could have
ascertained the necessary information, and
thus that the grounds for relief could
"reasonably have been raised in the original
or amended petition." OCGA § 9-14-51 (Code
Ann. § 50-127), supra. The state urges that
when, shortly after the trials, [the State's
witness] in fact pleaded guilty in exchange
for a life sentence, Smith and his lawyers
should have made further inquiry of [the
witness] and his attorney. This was not
done. Nor has the state shown that [the
State's witness] would have admitted his
alleged perjury had he been asked by defense
counsel.
The state's argument overlooks the thrust of
Napue v. Illinois . . . and Giglio v. United
States. It is not so much that [the State's
witness] testified falsely, but that the
state, by allowing this knowingly false
statement to stand uncorrected deprived the
defendant of a fair trial. Since the
prosecution has the constitutional duty to
reveal at trial that false testimony has been
given by its witness, it cannot, by failing
in this duty, shift the burden to discover
the misrepresentation after trial to the
defense. The defendant has a right to rely
6
Smith v.
on the accuracy of the trial testimony of the
state's witness where the truth or falsity of
his testimony is peculiarly within the
knowledge of the state and the state is under
a duty to reveal false testimony. Thus, we
find unpersuasive the state's argument that
the defendant should have discovered the
state's breach of duty. As was said in
Williams v. State, 250 Ga. 463 at 466, 298
S.E. 24 492 (1983): "The state urges that
the defendant should have done more than he
did to protect himself. We find that the
state should have done more than it did to
protect the defendant's rights." See also
Price v. Johnston, 334 U.S. 266 (1948).
We, therefore, hold that Smith has alleged
facts, supported by affidavits, sufficient to
satisfy the requirements of OCGA § 9-14-51
{Code Ann. § 50-127), to entitle him to a
hearing on the merits of his false testimony
claim; i.e., petitioner has shown grounds for
relief which could not reasonably have been
raised in his original habeas petition. The
habeas court erred in dismissing Smith's
Napue-Giglio claim, and we remand this case
for a hearing on the merits of this issue.
Zant, 250 Ga. at 651-652. (Emphasis added).
of an unconstitutional conspiracy.
Petitioner McCleskey's present habeas petition, like John
Smith's successive petition, depends upon a prior State cover-up
proof that Atlanta police officers conspired with a jailhouse
informant, Offie Evans, to procure incriminating admissions from
(s
McCleskey. The conspiracy ross Lul! pra iite with
McCleskey andj, led by the State as a key witness
t
petitiener McCleskey) during—iris 1978 trial, Pye used the
purported fruits of his secret interrogation to name McCleskey as
Specifically, McCleskey has
the triggerman in the onl crime. {pes st. Hab. Pet. 44 32-37.)
Fetne1ants police nite Ficers, snaseputany part of the State's
prosecutorial team, we obligated to disclose their misconduct
to the defense.’ Instead, they lied, and permitted Evans to lie,
in order to obtain McCleskey's conviction.
The teaching of Smith v. Zant is that McCleskey and his
counsel were entitled to presume that State witnesses told the
> ERach reference to the Petition for a Writ of Habeas
* Corpus, filed by petitioner as an appendix to his Application for
a Writ of Habeas Corpus, dated June 13, 1991, will be indicated
by the abbreviation "St. Hab. Pet." followed by the number of the
page on which the reference will be found.
& The United States Supreme Court has traditionally
imputed the misconduct of any member of the prosecution team to
the State itself. See, e.g., Mooney v. Holohan, 294 U. S. 103
(1935): Brady Vv. United States, 373 U.S. 83 (1963). The good
faith of some State actors cannot excuse the bad faith of others.
Especially is this true when Sixth Amendment claims are under
consideration. As Justice Stevens explained in Michigan v.
Jackson, 475 U, SS. 625, 634. (1986),
Sixth Amendment principles require that we impute the
State's knowledge from one state actor to another. For the
Sixth Amendment concerns the confrontation between the State
and the individual.
chore ¥—( .
See also Giglio v. United States, 405 U, 8. 150, 154 (1972);
Santobello v, New York, 404 U.8. 287, 262 (1971): CL. United
States v. Bagley, 473 UU, S. 667, 671 & n.4 (1986).
The lower federal courts have regularly applied this rule to
police misconduct of the sort at issue here. See, e.g., Freeman
vy. State of Georgia, 599 F.2d 65, 69-70 (5th Cir. 1979) ("We feel
that when an investigating police officer willfully and
intentionally conceals material information, regardless of his
motivation and the otherwise proper conduct of the state
attorney, the policeman's conduct must be imputed to the state as
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842
(4th Cir. 1964) ("The police are also part of the prosecution,
and the taint on the trial is no less if they, rather than the
State's Attorney, were guilty of the nondisclosure. . . .");
Schneider v. Estelle, 552 F.24 593 (5th Cir. 1971); Jackson V.
¥ainwright, 390 F.24 288, 296 (5th Cir. 1568); Curran v. State of
Delaware, 259 F.2d 707, 713 (34 Cir. 1958).
8
truth; moreover, they were entitled to rely upon the express
assurance by the prosecutor that no illegal informant
relationship marred the State's case. The prosecutor gave such
an express assurance in this case, in 1981, during a deposition
later admitted into evidence during petitioner's initial state
habeas proceedings in this Court:
Q. [Defense Counsel]: Okay. Were you aware at the time of
the trial of any understandings between Evans and any
Atlanta police department detectives regarding favorable
recommendation [sic] to be made on his federal escape charge
if he would cooperate with this matter?
A. [Assistant District Attorney]: No, sir.
Q. Let me ask the question another way to make sure we
are clear. Are you today aware of any understanding
between any Atlanta police department detectives and
Offie Evans?
A. No, sir, I'm not avare of any.
(Parker Dep., 92-10).
On cross-—-examination, the Assistant District Attorney
broadened his testimony:
Q. Do you have any knowledge that Mr. Evans was
working as an informant for the Atlanta Police or any
police authorities when he was placed in the Fulton
County Jail and when he overheard these conversations
of Mr. McCleskey?
A. I don't know of any instance that Offie Evans had
worked for the Atlanta Police Department as an
informant prior to his overhearing conversations at the
Fulton County Jail.
(Parker Dep. 14-15).
Under Smith v. Zant, petitioner McCleskey presently has two
separate bases for his present entitlement to be heard on the
merits of his Massiah claim: (1) first, he relied on the State's
failure to disclose the Massiah violation when Offie Evans
testified during petitioner's 1978 trial; and (ii) second, he
relied on the prosecutor's denial of any Massiah violation during
his 1981 deposition.’ Together, these misrepresentations, and
petitioner's justifiable reliance upon them, excuse petitioner's
failure to have brought forward evidence of State misconduct
earlier. They squarely meet the terms of 0.C.G.A. § 9-14-51's
second exception, as interpreted in Smith v. Zant: the "grounds
for relief asserted therein . . . could not reasonably have been
raised in the original or amended petition."
THE FACTS ASSERTED BY ®HE RESPONDENT DO NOT
ENTITLE HIM TO A DISMISSAL OF PETITIONER'S
APPLICATION. AT MOST, THEY PRESENT DISPUTED
ISSUES WHICH CXN BE RESOLVED ONLY AFTER FULL
CONSIDERATION OF THE MERITS
As noted above, respondent launches two factual arguments in
his motion to dismiss. We will treat them in turn.
A. Respondent’s Assertion That Petitioner Should
Have Discovered The State’s Misconduct
Earlier Is Irrelevant Under Georgia Law. It
Is Also Factually Incorrect, As The Federal
District Court Found
1. The 21-Page Statement -- Respondent begins by
complaining that "[p]etitioner has failed to establish exactly
3 Tt is, of course, immaterial whether prosecutor Russell
Parker himself knew about the Massiah violation. As indicated
above, see note 4, when he spoke, the law imputes to him the
knowledge of the entire prosecution team, including the
unquestionably knowledgeable participants in the police
conspiracy.
10
what newly discovered facts would Justify this Court's re-
litigation of this issue and what facts he contends are newly
discovered." (Resp. Br. 10). Offie Evans' 2l1l-page written
statement, given to Atlanta police in August of 1978, is not
"new," respondent notes; petitioner had uncovered the statement
(no thanks to the prosecution or the State Attorney General's
Office) by 1987, when petitioner's second state application was
filed. (Id.: gee also 1d. at 12-13).
Petitioner's claim, however, does not depend upon the 21-
page statement alone, but upon the carefully concealed story of
the Massiah violation which first came tumbling out of the mouths
of various witnesses, inadvertently, during a federal evidentiary
hearing in July of 1987 -- only after McCleskey's second state
application had been summarily dismissed.
2. The Police Witnesses --\Turning to these witnesses,
respondent bundles together a handful of half-truths and
misrepresentations by insisting that "all . . . were readily
available at any time to testify." (Resp. Br. 10). praerwniid”
fhe police officers involved in the conspiracy -- Sidney Dorsey
and, perhaps, Welcome Harris -- were doubtless "available" in
1987 petitioner gt a state habeas hearing to put
them under oath. By summarily granting the State's 1987 motion
to dismiss, (this Court deprived petitioner any meaningful
opportunity to obtain their testimony.
FI)
Mor ah Judge Forrester found after listening to
their testimony in federal court, these police witnesses in 1987
31
were actively covering up the Massiah violation and their own
involvement in it: "Unfortunately, one or more of those
investigating Officer Schlatt's murder stepped out of line.
Determined to avenge his death the investigator(s) violated
clearly-established case law." (St. Hab. Pet., Exh. D, 31).
"Detective Dorsey," Judge Forrester observed, had an obvious
interest in concealing any [Massiah] arrangement" (St. Hab.
Pet., Exh. E, 10); and this "complicated scheme . . . required
Evans and any officers involved to lie and lie well about the
circumstances." (St. Hab. Pet. 21).
For these reasons, Judge Forrester rejected any possibility
that petitioner could have obtained proof of the Massiah H .
aS J
violation by means of an informal interview with Detective Dorsey,
or the other detectives:
The state argues that petitioner's counsel should have
at least interviewed Detectives Harris and Dorsey and
Deputy Hamilton. Given that all three denied any
knowledge of [the details of the conspiracy to violate
Massiah] . . . it is difficult to see how conducting
such interviews would have allowed petitioner to assert
this claim any earlier.
(St. Hab, Pet., Exh. 25).
Se Offie Evans -- Respondent also faults McCleskey's
counsel for alleged failure to interrogate Offie Evans: "Mr.
Evans . . . testified before this Court in 1281, but was not
asked whether he had been moved or placed in a jail cell as an
agent for the State. Thus, Petitioner simply failed to pursue
that line of questioning." (Resp. Br. 11). Respondent's
assertion is false. Defense counsel Stroup pursued an entire
12
line of questioning on these issues, asking Offie Evans under
oath when he had been placed in solitary confinement at the
Fulton County Jail (1987 st. Hab. Tr. 116), whether there was a
"special reason" he had been put into solitary confinement (id.
116-117), whether he had been placed adjacent to the cell of
Warren McCleskey (id. 117), the identity of the investigators and
police officers who had spoken with him, when those conversations
with police had occurred (id. 117-118), whether he had been
promised anything in exchange for his testimony against Mr.
McCleskey (id.,122), and whether he had subsequently given
testimony against any other inmates in other cases. (Id. 126-
127).
Informant Evans, in response, never disclosed that he had
been moved from another cell to the cell adjacent to McCleskey's,
or that he had been asked by Atlanta detectives secretly to
interrogate Mr. McCleskey, or that he had agreed to do so, or
that he had given a 2l1-page written statement to Atlanta
-«
investigators.
4. Ulysses Worthy -- Finally, respondent faults petitioner
for not locating jailor Ulysses Worthy prior to McCleskey's 1987
state habeas application. During the 1987 federal hearing,
Worthy -- a retired jailor at the Fulton County Jail -- proved a
key witness to the Massiah violation. Jailor Worthy testified
that he had overheard Atlanta police detectives as they met with
informant Offie Senay VWorthy's office at the jail, during July
of 1978. In Worthy's presence, the officers coached Evans ity
i:
his secret interrogation of McCleskey. Jailor Worthy testified
that, during the meeting, Detective Sidney Dorsey (or perhaps
another "officer on the case") "asked Mr. Evans to engage in
conversations with McCleskey who was being held in the jailn"
—- Yow officer 4 <Q .
sgl: facilitate Evans' questioning; requested jailor Worthy to
move Evans from another part of the jail to a cell next to
McCleskey. Judge Forrester himself questioned jailor Worthy on
the essential points:
THE COURT: But you're satisfied that those three things
happened, that they asked to have him put
next to McCleskey, that they asked him to
overhear McCleskey, and that they asked him
to question McCleskey.
THE WITNESS: I was asked can -- to be placed near
McCleskey's cell, I was asked.
THE COURT: And you're satisfied that Evans was asked to
overhear McCleskey talk about this case?
THE WITNESS: Yes, sir.
THE COURT: And that he was asked to kind of try to draw
him out a little bit about it?
THE WITNESS: Get some information from him.
Judge Forrester ultimately found that "one or more of those
[who were] investigating Officer Schlatt's murder" (St. Hab.
Pet., Exh. D, 31) requested Captain Ulysses Worthy to move
informant Evans to the cell adjacent to Mr. McCleskey. Next, the
officers instructed informant Evans to "get some information"
from Mr. McCleskey about Officer Schlatt's homicide (St. Hab.
Pet., Exh. D, 21-23):
[Evans] was moved, pursuant to a request approved by
Worthy, to the adjoining cell for the purpose of
gathering incriminating information; Evans was probably
14
coached in how to approach McCleskey and given critical
facts unknown to the general public; Evans engaged
McCleskey in conversation and eavesdropped on
McCleskey's conversations with [co-defendant Bernard]
DuPree; and Evans reported what he had heard . . . to
Assistant District Attorney Parker. . . .
(St. Hab. Pet., Exh. D, 23).°
Respondent suggests that, in light of Worthy's potentially
explosive testimony, McCleskey should now be faulted for failure
to have called him earlier:
Detective Harris freely mentioned the name of Captain
Ulysses Worthy when asked in the federal district court
proceeding. Petitioner has never indicated that he
attempted to contact Mr. Worthy or that he was
prevented from doing so in any fashion.
(Resp. Br. 11). This suggestion, however, is a triumph of
hindsight. In 1987, there was no visible thread connecting
Ulysses Worthy (by then, long-retired as a jailor, working in
obscurity at Morehouse College) to McCleskey's case. Neither
® In light of these and other comprehensive findings by
Judge Forrester on all aspects of the Massiah claim, we are
frankly baffled by respondent's unsupported declaration that
"there has never been any finding of a coverup or police
misconduct regarding any statement of Offie Evans." (Resp. Br.
15). See, e.g, St. Hab, Pet., Exh. D,i 21, 28:
[T]he use of Evans as McCleskey alleges . . . developed
into a complicated scheme to violate McCleskey's
constitutional rights -- its success required Evans and
any officers involved to lie and lie well about the
circumstances. . . . Given the facts established
earlier, petitionr has clearly established a Massiah
violation here. It is clear from Evans' written
statement that he did much more than merely engage
petitioner in conversation about petitioner's crimes.
As discussed earlier, Evans repeatedly lied to
petitioner in order to gain his trust and to draw him
into incriminating statements. Worthy's testimony
establishes that Evans, in eliciting the incriminating
statements, was acting as an agent of the state.
15
his name nor his role had ever been mentioned by anyone. He
played no known role in the police investigation. He had assumed
no special responsibility for McCleskey, and in 1978, had been
but one of hundreds of jailors working in the Fulton County Jail
during McCleskey's incarceration there.
only when Detective Harris was cross-examined under oath
about the 21-page statement of Offie Evans did Worthy's name
surface. Asked by defense counsel Stroup where the 2l1-page
statement had been taken, Detective Harris grudgingly mentioned
"a room [at the Fulton County Jail] that was occupied by a
captain, and I don't think -- he's no longer employed out there,
I think his name is Worthy." Pressed on whether jailor Worthy
had been present during the interview, Detective Harris lied:
No, sir. I'm sure he wasn't, you know." Suspicious of
Detective Harris' answer, defense counsel promptly located and
subpoenaed Worthy.
After fully considering these circumstances -- both Worthy's
obscurity and the concerted police effort tc hide his role --
Judge Forrester concluded that
counsel's failure to discover . . . Worthy's testimony
++ «» was not inexcusable neglect. . . .
Petitioner's counsel represents, and the state has not
disputed, that counsel did conduct an investigation of
a possible Massiah claim prior to the first federal
petition, including interviewing "two or three
jailers." . «. . The state has made no showing of any
reason that petitioner or his counsel should have known
to interview Worthy specifically with regard to the
Massiah claim.
(St. Hab. Pet., Bxh. D, 25).
16
wl ressnadhy leat ) (0
In sum, McCleskey now comes before this Court with new and
important evidence obtained since his 1987 state habeas filing.
This evidence was previously hidden by State actors. It emerged
only during the federal hearing in 1987. It is decisive of his
’
Massiah claim. Und 2, Sri, Raa ll it slaty % ho ah m /& wall.
B. A Motion To Dismiss Is An Inappropriate
Vehicle For Adjudication Of The Merits Of
Petitioner’s Claim
Although respondent confesses that "no court actually
directly reversed the factual findings" of Judge Forrester (Resp.
Br. 11), he nonetheless draws on a welter of unpersuasive
authorities to urges this Court to re-determine the merits of the
Massiah claim -- on this preliminary motion -- prior to
consideration of the full factual record. As justification, he
points to "numerous comments" from the majority opinion of the
Supreme Court of the United States (Resp. Br. 12-14), which, he
implies, somehow tacitly undermine the facts found by the
District Court on the Massiah claim. Much of the Supreme Court's
dicta to which res on closer examination, proves
relevant miot to the merits, but to that Court's application of
its new, strict "cause" and "prejudice" inquiry announced in
TH doses pot, \ shot | 0 Tod, fHrmls fh 0 Fads.
McCleskey's case. 5
Respondent A arin ¥r solicits a judgment by this
Court that "certain findings by the district court are obviously
clearly erroneous," and (ii) denies that "there has been [any]
showing that the testimony of Offie Evans was unreliable or
false." (Resp. Br. 15-16). This Court's determination of whether
17
factual findings are "clearly erroneous," however, is plainly an
inappropriate inauiey on a motion to dismiss. As to respondent's
in : bla
second peimt; NEE assurances about Offie Evans' credibility,
pation re content at present simply to juxtapose Judge
Forrester's factual findings:
The credibility or believability problems with [Evans']
testimony are evident. He has a strong motivation for
saying he was not an informant . . . . The numerous
contradictions within his deposition also lead the
court to the conclusion that his testimony would not be
believable. . . Evans' testimony is not likely to
change the credibility of Worthy's testimony or the
fact that petitioner showed by a preponderance of the
evidence that a Massiah violation occurred.
{(st.. Hab, Pelt., Exh. D, 9-10).
Respondent's final factual argument attempts to meke capitalize Mm
nA : :
certain contrary findings on a Massiah claim, rendered by
a nother federal couriaduring another habeas proceeding, involving
one of McCleskey's co-defendants. (See Resp. Br. 10, 15). This
lame effort turns all known principles of collateral estoppel on
their head: surely McCleskey is entitled to rely on prior
factual findings made in his own case ~with-the—-State preseont—af
“futty-capabtre—adversary; he is not bound by findings made in
another courtroom, in another case, to which he was not a party.
IX
THE STATE’S USE OF OFFIE EVANS’ TESTIMONY -- AS
DISTRICT JUDGE OWEN FORRESTER EXPRESSLY FOUND, AND AS
AFFIDAVITS FROM TWO OF PETITIONER’S TWELVE TRIAL JURORS
NOW ESTABLISH IRREFUTABLY =-- WAS NOT /“HARMLESS ERROR”
18
Respondent's last basis for dismissal relies on a "harmless
error" holding, rendered as an alternative ground by a panel of
the United States Court of Appeals; nie Principal ground on
which that court reversed the judgment of Judge Owen Forrester
was that McCleskey's habeas application should have been deemed
an "abuse of the writ." ee McCleskey v. Zant, 890 F.2d 342,
346, 351 (llth Cir. 19389).
CONCLUSION
Respectfully submitted,
«
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
Mark E. Olive John Charles Boger
Georgia Resource Center University of North Carolina
920 Ponce de Leon, N.E. School of law, CB # 3380
Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599
(404) 898-2060 (919) 962-8516
ATTORNEYS FOR PETITIONER
19
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been
furnished by mail to Mary Beth Westmoreland, Esqg., counsel for
Respondent, Office of the Attorney General, 132 State Judicial
Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334.
This day of July, 1991.
ATTORNEY FOR PETITIONER
20
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July 17, 1990
Dear Professors Amsterdam and Boger:
Attached is a compilation of excerpts from cases and legal
treatises discussing the Abuse of Writ of Habeas Corpus doctrine
from its development in seventeenth century England to its adoption
in nineteenth century America.
The memo is divided into four sections: Successive Petitions
in England; Abuse of Writ Cases in England; The Transfer of the
Writ to the United States; and Successive Petitions and Abuse Cases
in the United States (pre-Loisel v. Salinger).
To greatly summarize our findings: The explicit allowance of
successive petitions for writs of habeas corpus in pre-1959 England
meant that the Abuse of Writ doctrine was narrowly construed in
England. In the United States of the 1800's a majority of states
followed the British practice of liberally entertaining successive
petitions, though a few states, like Missouri and Texas, enacted
statutes limiting the circumstances in which state courts could
entertain successive petitions. The Missouri statute required
subsequently occuring events for courts to entertain successive
petitions, whereas the Texas statute allows courts to entertain
successive petitions based on evidence that the defendant had been
unable to introduce at trial, even though the evidence was old.
The federal cases allow for successive petitions unless the
defendant abuses the writ by, for example, voluntarily omitting a
claim from an earlier petition in order to delay final
determination of the case.
A few caveats:
First, we do not discuss the distinctions between the
different courts empowered to issue writs of habeas corpus in pre-
modern England. Our rather monolithic treatment of British courts
oversimplifies the development of the writ, as historians like
Duker argue that the courts used habeas corpus to compete against
other level courts for power and prestige within the legal system;
however, it it is not clear how these inter-bench rivalries
impacted on the Abuse of Writ doctrine, per se.
Second, we do not discuss the transition from state court
review of the imprisonment of federal prisoners to federal review
of the imprisonment of state prisoners. Nonetheless, we cite
several 19th century state court cases which reveal the attitude of
the states toward habeas corpus in general, and abuse of the writ
in particular. If the language from 19th century state court cases
seems helpful to you, there are many additional cases for which we
have cites but which we have not yet been able to locate on the
shelves. Given a green light, we will track them down.
Third, we have compiled, but do not here include, materials
discussing the 20th century American abuse of writ cases beginning
with Salinger v. Loisel, culminating with Sanders, and crashing
with Kuhlman, under the assumption that you know those materials
cold, and have written that history before. If you would like us
add this section, we could easily do so.
Fourth, some early Federal cases were not available at local
libraries or the Library of Congress last week. We are still
trying to track them down to determine if they might have any
useful discussions of abuse of writ in them. We will let you know.
Lastly, this memo tends to be top-heavy on quotations and a
little light on law student synthesis. We quote some courts and
commentators at length to provide critical synopsis and historical
transitions. We felt that the first attempt at paraphrasing and
paring of language is better done by your experienced eyes. If
after reviewing our sources you would like us to try our hand at
constructing an historical argument about the narrowness of the
abuse of writ doctrine, we would be happy to give it a shot.
In any event, please call on us to fill in lacunae in our
research and/or to clarify particular court practices which we.
describe but may not sufficiently contextualize.
Best of luck. We’ll stay in touch.
To: Professors Tony Amsterdam and Jack Boger
From: Dan Abrahamson (Debevoise & Plimpton: 202-383-8034)
Michael Barr (Ginsburg, Feldman & Bress: 202-637-6761)
Date: July 17, 1990
‘Re: McCleskey: Abuse of Writ Doctrine -- An Historical Overview
Outline
I. Successive Petitions in England
A. Res judicata does not apply to writs of habeas corpus
B. The Right to Successive Petitions
C. Curtailing the Right to Successive Petitions
II. Abuse Cases in England
A. Introduction: Most abuses are by Executive and Courts
B. Early abuses by Debtors
C. Other abuses: Privilege, Plague, Trickery
III. The Transfer of the Writ to the United States
A. State Court Habeas Proceedings
B. Federal Habeas Jurisdiction
C. A Note on Mostly modern English practice Pre-Conviction
compared with American Post-Conviction Review
IV. Successive Petitions and Abuse Cases in the United States
A. Outline of early State and Federal Cases and Statutes
B. State Courts allowing Successive Petitions
C. Missouri Statute on Offenses Not Bailable
D. North Carolina Statute requires an affidavit that the
legality of the imprisonment had not already been adjudicated
on a writ of habeas corpus
E. Texas Statute Requires new testimony, which includes new
evidence of old facts which the defendant could not bring to
light at the former trial
F. Mississippi Statute Requires New Facts to Entertain
Successive Petitions
G. Early Federal Cases and the Abuse of Writ
I. SUCCESSIVE PETITIONS IN ENGLAND
A. o res judicata applied writs b orpu
At common law, no writ of error or appeal lay from a hearing
on a writ of habeas corpus, but the petitioner had a right to make
successive applications for a writ of habeas corpus to every judge
or Court with jurisdiction. Each judge or Court examined the
petitioner’s claim anew.’
‘We will not go into great detail about the origins of the
writ of habeas corpus in this memo. There were several types of
such writs whose functions evolved over several centuries. Such
1
No writ of error lay on such a writ because there was no ‘ideo
consideratum est,’ in other words, no formal judgment. Thus, a
decision on habeas corpus was not res judicata as to subsequent
habeas petitions. That principle evolved from decisions in The
as the Ci of L on, [1609] 8 Coke Report 121 b, 127 b (no
writ of error may lie on writ of habeas corpus); Pender v. Herle,
[1725] 3 Brown Parliament Cases 505 (no writ of error may lie on a
peremptory writ of mandamus); King v. Suddis, 1 East 306, 314, 102
Eng. Rep. 119 (K.B. 1801) (res judicata does not apply to habeas
corpus, but it is a sufficient return to a writ that the sentence
was pronounced by the Court of competent jurisdiction with power to
inflict such a punishment); Burdett v. Abbot, 14 East 1, 90, 104
Eng. Rep. 501, 535 (K.B. 1811) (writ of habeas corpus is not res
judicata as to a suit for trespass, but the Court cannot review
Parliament’s actions in breaking into a Member of Parliament’s
house and imprisoning him).
It is unclear precisely when the right to successive petitions
began. Goddard has noted that before the Habeas Corpus Amendment
Act of 1697 (31 Car. 2, c.2), "there is no authority for saying
that if a writ was refused, or if on the return the prisoner was
remanded, an application could be made to another court. Before
the Act of 1697 the King’s Bench or a judge thereof in vacation was
the only court from which the writ issued. . . . There is no trace
of the writ ever having been granted by the Exchequer before 1679.
The practice of going from court to court, therefore, seems to have
arisen solely as a consequence of that Act which conferred the
power of issuing the writ on the Chancellor and on any of the
judges and barons, and obliged them to do so." Goddard, "A Note on
Habeas Corpus," L.Q. Rev. 65: 30, 34-35. However, Holdsworth has
written that the Court of the Common Pleas granted writs of habeas
corpus as early as 1670, in Bushell’s Case, T. Jones at p. 13, and
that the Act of 1679 extended jurisdiction to isons. Wrles to all
three of the common law courts, citing Crowley’s se (1818) 2
Swanst. at 53-56, 65-68. See Holdsworth, A History Es a nglish Law,
Volume I, p. 203 (1926).
writs included the writ of habeas corpus ad respondendum, used to
secure the appearance of the accused before the court. The writ of
habeas Corpus that became used to adjudicate the lawfulness of a
prisoner’s detention evolved from the writ of habeas corpus cum
causa and the writ of habeas corpus ad subjiciendum. The writ cum
causa, which dates from the 14th century, and the writ ad
subjiciendum, which was prominent in usage in the 17th century,
both could be used to produce a person under the control of
another, and to inquire into the cause of the detention. We do not
trace with complex growth of the writ of habeas corpus from these
writs, nor do we discuss the other writs that are not directly
relevant to our inquiry.
One should also note that early in the history of the writ of
habeas corpus, the Courts asked only limited jurisdictional
questions in assessing the legality of an imprisonment, and most
usually pre-trial. The writ was most often sought in cases where
defendants had been imprisoned with 1little or no judicial
intervention, and with questionable authority. The Court’s
issuance of a writ of habeas corpus required the jailer to make a
return’ setting forth the authority under which the defendant had
been imprisoned. Goddard has written that before "the Act of 1816
the court had no power to inquire into the truth of a return or
into the facts relating thereto. All that was decided was whether
the return of the gaoler showed on its face a lawful detention. .
. After the Act, if inquiry into the facts became necessary,
different findings could be made by different courts. Hence the
applicant could renew is application on exactly same grounds to
another court or a single judge of the same court and not be met
with the answer that the lawfulness of the detention had already
been decided." Id. at 32.
Again, the origins of the writ are disputed, but Duker has
noted that the writ of habeas corpus cum causa "originated in the
mid-fourteenth century in the Court of Chancery... The development
was generated by the same characteristic of the common law
responsible for the fission of the courts of law and equity: its
propensity for rigidity. The equity powers of the Chancellor were
often required to rectify unjust decisions of the inferior
tribunals." Duker, A Constitutional History of Habeas Corpus, p. 27
(1980) (citations omitted) (hereinafter, "Duker"). Jurisdictional
and political disputes among the various English courts, and
between the King and Parliament, strengthened the use of the writ
as a means of ensuring that a petitioner’s case would be heard,
because courts used the granting of writs to wrest jurisdiction
from one another.
. The Right to Successive Petitions
Res judicata did not bar subsequent applications by a prisoner
for a writ of habeas corpus, and courts could and did entertain
successive petitions. By the mid-1800s, the right to successive
petitions had been clearly articulated. As the Court of the
Exchequer noted in Ex parte Partington, 13 M. & W. 679, 683-684,
153 Eng. Rep. 284, 286 (Ex. 1845):
This case has already been before the Court of Queen’s Bench,
on the return of a habeas corpus, and before my Lord Chief
Baron at chambers, on a subsequent application for a similar
writ. In both instances the discharge was refused. The
defendant, however, has a right to the opinion of every court
as to the propriety of provisions of the statute, without
considering ourselves as concluded by these decisions. But we
are all of the opinion that the defendant is not entitled to
his discharge, and we entirely agree in the judgment of the
3
Court of Queen’s Bench, which was approved of by the Chief
Baron, and are satisfied of the correctness of the reasons
stated to us to have been assigned by Lord Denman for that
judgment. :
As Duker has noted, "The common law of England dealt with this
writ so liberally, that the decision of one court or magistrate to
refuse to release the prisoner, was no bar to the issuing of a
second, or third, or additional writ by another court or magistrate
having jurisdiction of the case." Duker, p. 5. One case is often
cited for the proposition that successive writs were not always
heard. In Re Cobbett (1845), the Court of Exchequer, Parke B.,
noted that "You have been heard once; we can not enter into this
matter again." However, most commentators have noted that the
Court went on to hold that "You can go to another court in which
you have not been heard," and that "If this was the only court in
which you could be heard we might then, perhaps under the
circumstances, rehear the case." The Court was not applying res
judicata; it was merely indicating its predeliction not to rehear
the same petition based on the same grounds. See Mian, Badshah K.
English Ha Ss S: Ww ist n itics.
The extensive speeches in Cox v. Hakes, [H.L. 1890] 15 A.C.
506, confirmed the right of the applicant to make successive
petitions for writs of habeas corpus. Rev. Cox was sued in an
Ecclesiastical court for offenses against the church, was found
guilty of contempt, and was arrested and imprisoned. The Queen’s
Bench granted a writ of habeas corpus and Cox was discharged. The
Court of Appeal reversed the order. The High Court reversed the
Court of Appeal, holding that the Court of Appeal had no
jurisdiction, because no appeal lay from an order granting
discharge of a prisoner under habeas corpus. Lord Halsbury'’s
speech is oft quoted:
(Lord Halsbury, L.C.):
For a period extending as far back as our legal history, the
writ of habeas corpus has been regarded as one of the most
important safeguards of the liberty of the subject. If upon
the return to that writ it was adjudged that no legal ground
was made to appear justifying detention, the consequence was
immediate release from custody. If release was refused, a
person detained might -- see Ex parte Partington (13) -- make
a fresh application to every judge or every Court in turn, and
each Court or Judge was bound to consider the question
independently and not to be influenced by the previous
decisions refusing discharge. If discharge followed, the
legality of that discharge could never be brought in question.
No writ of error or demurrer was allowed: City of London’s
Case (14). Id. at 514.
In days of technical pleading no informality was allowed to
4
prevent the substantial question of the right of the subject
to his liberty being heard and determined. The right to an
instant determination as to the lawfulness of an existing
imprisonment, and the twofold quality of such a determination
that, if favourable to liberty it was without appeal, and if
unfavourable it might be renewed until each jurisdiction had
in turn been exhausted, have from time to time been pointed
our by Judges as securing in a marked and exceptional manner
the personal freedom of the subject. Id. at 514 - 515
It is the right of personal freedom in this country which is
in debate; and I for one should be very slow to believe,
except it was done by express legislation, that the policy of
centuries has been suddenly reversed and that the right of
personal freedom is no longer to be determined summarily and
finally, but is to be subject to the delay and uncertainty of
ordinary litigation, so that the final determination upon that
question may only be arrived at by the last Court of Appeal.
Id. at 522.
(Lord Watson concurred with Bramwell and Herschell)
(Lord Bramwell)
I cannot agree that going first to a judge of one court, and
then, on being refused by the judge, going to a court, and, on
being refused by one court, going to another, was or is an
appeal....It was exercising a primary jurisdiction... If
indeed such a proceeding was an appeal that appeal exists
still. Id, at 523
Anyhow, there is the possibility of a second application now
as of right, so that there is the less need for an express
appeal to supply the want of being able to try more than one
tribunal. The second application may be "improper," as Lord
Justice Cotton says, but it is one that may be made and must
be entertained. Id. at 524.
(Lord Herschell)
It was always open to an applicant for it, if defeated in one
Court, at once to renew his application to another. No Court
was bound by the view taken by any other, or felt itself
obliged to follow the law laid down by it. Each Court
exercised its independent judgment upon the case, and
determined for itself whether the return to the writ
established that the detention of the applicant was in
accordance with the law. A person detained in custody might
thus proceed from court to court until he obtained his
liberty. And if he could succeed in convincing any one of the
tribunals competent to issue the writ that he was entitled to
be discharged, his right to his liberty could not afterwards
5
be called in question. There was no power in any Court to
review or control the proceedings of the tribunal which
discharged him. I need not dwell upon the security which was
thus afforded against any unlawful imprisonment. It is
sufficient to say that no person could be detained in custody
if any one of the tribunals having power to issue the writ of
habeas corpus was of opinion that the custody was unlawful. --
at 527-528. es)
(Lord MacNaghten concurred with Lord Herschell)
Lords Morris and Field, in dissenting, noted that although there
was some confusion as to the right to go from judge to judge in
term time, prior to the Judicature Act of 1873, 36 & 37 Vict. c.
66,2 applicants could go from court to court in succession. The
dissenters, however, believed that the Judicature Act provided for
appeals from writs and ended the right to successive applications.
Lord Morris stated that the court of appeals should be affirmed,
because appeals may be had from granting of discharges on writs of
habeas corpus. The dissenters noted that in the Privy Council, in
eg. V , Law Rep. 6 P.C. 283, the court overturned the
issuance of a writ on appeal, and in Attorney-Gene on
v. Kwok-a-Sing, Law Rep. 5 P.C. 179, the Council upheld one and
overruled another writ on appeal. Cox v. Hakes, 15 A.C. at 541.
Lord Field pointed out that:
...at the time of the passing of the Act it was the undoubted
right of a subject detained in custody to question by habeas
the lawfulness of his detention before every one of Her
Majesty’s Courts in succession, without regard to the refusal
to discharge by any one or more of them; and that if any one
Court came to the conclusion that the applicant was entitled
to be discharged, no other Court had any power of modification
or reversal. -- at 543.
However, Lord Field stated that Section 19 of the Judicature Act
changed this custom, by permitting appeals to lie from writs of
habeas corpus._See also: Opinion below, Ex parte Cox, [1887] 20
Q.B.D. 1. (Lord Esher, M.R., held that prior to the Act, there
could be a petition to "all the Courts in succession" and no
appeals, but the Act changed that to provide for appeals from
writs, 20 O.B.D, at 12-14,
2The Judicature Act of 1873, Section 47, provided that no
appeal shall lie from any judgment of the High Court "in a criminal
cause or matter." Section 19 provided for the general process of
appeals. In Cox, the Court held that the cause was not criminal,
but that no appeal lay anyway, because under the common law no
appeal from habeas corpus was available.
6
In Secretary of State for Home Affairs v. O’Brien, (1923)...
A.C. 604, the Court extended the holding of Cox v. Hakes to cages
in which a writ of habeas corpus had been granted, but no actual
discharge had occurred.
The English Courts continued their liberal interpretation of
the right to successive applications in Eshugbayi Eleko v. Officer
Administering the Government of Nigeria, [1928] A.C. 459. In that
case, Lord Hailsham, L.C. stated that "The writ of habeas corpus is
a high prerogative writ for the protection of the liberty of the
subject," at 467, and that "each judge is a tribunal to which
application can be made within the meaning of the rule, and every
judge must hear the application on the merits," and that "each
judge ... is bound to hear and determine such an application on its
merits notwithstanding that some other judge has already refused a
similar application," at 468. The decision in Eshugbayi created
some controversy over whether the prior rulings had allowed
successive petitions to individual judges of the same court in term
time, or only in vacation time; however, there seems to have been
no dispute about the right to successive petitions from judge to
judge in vacation time, and from court to court in term time. See
also, In re Carroll, (1930) 1 K.B. 104, which reiterated the right
to successive petitions enunciated in Eshugbayi, but held that the
Court of Appeal had no original jurisdiction to hear habeas
petitions because it was not a part of the High Court of Justice;
and v. 0 d inis a
Netherlands Government [1942] A.C. 147, 159 (successive writs
allowed, but no appeal).
Cc. Cu 11} e Right to Successiv etitions
The right to successive applications for a writ of habeas
corpus was greatly curtailed in England in 1959, with the decision
in In re Hastings (No. 2), [1959] 1 Q.B.D. 358. The court held
that the Judicature Act of 1873 had fused the courts into one.
Therefore, an applicant for a writ of habeas corpus in a criminal
case who has once been heard by a Divisional Court of the Queen’s
Bench Division, cannot be heard again, on a renewed application
made on the same evidence and the same grounds, by another
Divisional Court of the same Division, as the decision of the
Divisional Court is equivalent to the decision of all the judges of
the Queen’s Bench Division. The court held that it "having once
exercized its discretion, must have an inherent jurisdiction to
refuse, to hear the same matter argued again."
The Administration of Justice Act (1960), 8 & 9 Eliz. II, c.
65, Section 14(2), codified in part, and modified in part, the
Hastings decision. Under the Act, the same grounds for relief can
be asserted again only if "fresh evidence" is introduced,
effectively ending the practice of successive petitions. See
Yackle, Post Conviction Remedies § 151, p. 551 (1982). It is
unclear whether "fresh evidence" includes new legal theories or old
7
evidence newly discovered, see Sharpe, Robert J. The Law of Habeas
Corpus (1976), p. 200. The Act provided, for the first time, for
appeals from decisions on writs of habeas corpus.
II. Abuse Cases in England
A. Int fion: abu ps b ecuti
" Because the English Courts came to view the writ liberally and
entertained successive petitions, there is little discussion of
abuses of the writ in the sense that modern U.S. courts have used
that term of art. Most of the discussion in secondary material
relating to abuses of the writ involve abuses by one court to
improperly take jurisdiction over a case from another court, or
abuses by the executive in failing to respond to the writs and
discharge the prisoner.
However, one commentator has noted that the writs were abused
to defeat the proceedings of inferior courts in the 1400s to the
early 1600s, and statutes were passed in 1414, 1433, 1601, and 1624
to limit these abuses, particularly the abuses by debtors.
Holdsworth, A History of English Law (1926), Vol. IX, pps. 104-125,
especially at 109-110.
B. i 3 bt
There were many abuses of the writ in the 1400s and 1500s, and
a statute of 1433 was aimed at limiting the abuses. Maxwell Cohen
describes the statute thus:
Here the object was to prevent recognitors held under the
process of an inferior tribunal from defeating their
recognizances by obtaining writs of corpus cum causa out of
Chancery and thus when once out of the control of such
inferior courts to have a scire facias sued out against their
recognizance with a view to defeating the entire proceedings
below. Legislation to curb the uses to which these writs were
being applied continued throughout the sixteenth and
seventeenth centuries and by the time of Charles I the removal
of causes and the body from inferior courts in abuse of
process was rendered quite difficult. An act of 1554
prohibited writs of certiorari and corpus cum causa from
removing a person out of gaol and a recognizance from an
inferior court unless such writs were signed ‘with the proper
hand of the Chief Justice or in his absence one of the
Justices of the court out of which the same writ shall be
awarded.’ Late in Elizabeth’s reign another attempt was made
to limit the scope of the writ. The extent to which the abuse
had been practiced throughout the sixteenth century is
reflected in the references to habeas corpus in the satirical
drama of the period. And it may be assumed if it was
notorious enough to come to the attention of contemporary
8
playwrights, there could be small doubt as to its
popularity....
Cohen, M. "Habeas Corpus Cum Causa -- The Emergence of the Modern
Writ," Can. Bar. Rev. 18: 10 and 172 (1940), at p. 14-15. Cohen
cites Thomas Dekker, "Lantern and Candlelight," (1608) 320; Thomas
Fennor, "The Counter’s Commonwealth" (1617) 432. See also Duker
at 29. Cohen continued:
... by the time of Henry VI the courts have discovered abuses
of process and are determined to curtail such use of the writ.
So it became the judicial policy to deny corpus cum causa
based on privilege where it was evident that a debtor was
attempting to evade his obligation.... Id. at 17.
Thus the cases reveal a conflict in tendencies, in that the
courts are determined to prevent abuses of the corpus cum
causa to protect creditors, while at the same time they are
even more anxious to maintain and increase the extent of their
power and here the corpus cum causa was an indispensable ally.
Id. at 29. The emphasis on debtors and creditors in abuse cases
underlines the significance of property relationships of the times.
According to Duker, the legislation of 1623 (21 Jac. 1, c.
23), "enchanced the right of lower court magistrates to refuse to
recognize corpus cum causa and certiorari... The aim was to correct
the abuse of judicial machinery by defendants whose action for
removal would result in "the intolerable delay of justice ... [at
the] great expences of [the plaintiffs]. Duker at 31.
C, Privilege, Plague, and Trickery
We have been able to find only a few cases in which the
petitioner was deemed to have abused the writ process in testing
the validity of his criminal imprisonment. In Case 4. Memorandum,
(1637) Cro. Car. 466, on petition by prisoners for writ of habeas
corpus "for avoiding the danger of the infection of the plague much
increasing," the court held that "...a habeas corpus was an ancient
and legal writ; but under colour thereof the warden of the Fleet
and Marshal of the King’s Bench ought not to suffer prisoners to go
at large, but that such permission is an abuse of the said writ,
and an escape in the keeper of the prison..." In Worlay Vv.
Harrison, (1566) Dyer 249 b, a prisoner in the Compter of London
was held to have abused the writ of habeas corpus to transfer his
case to another court in order to be imprisoned instead in the
Fleet, a "more easy and roomy" prison. See also, Anon, 145 Eng.
3Both selections are from Judges, A.V., ed., The Elizabethan
Underworld, (1930).
Rep. 111 (Ex. 1485); and see Y.B. Mich. 16 Edw. 4 pl 5 (1288).
Another court which found an abuse by the petitioner before it
commented that "...this is but a trick of the party to gain his
liberty" Anonymous (1649) Styles 128. Cohen at 175 (case
unavailable at LC at this time; will try to get facts later)
Other than abuses to avoid the plague and abuses by debtors,
the writ of habeas corpus seems to have been employed by landed
gentry or Members of Parliament who could claim privilege in order
to remove their legal cases from inferior courts’ review to a court
of their peers. Duker has noted that the privilege was used in
conjunction with the writ of habeas corpus to defeat legitimate
legal actions:
The combined use of the writs of privilege and corpus cum
causa provided the ideal deterrent to encroachments on the
jurisdiction of the superior courts. Inevitably this
mechanism of defense was used by some as an offensive weapon
to disrupt the just operation of the lower courts. Determined
to enjoin this abuse, the superior courts would refuse to
grant a writ of corpus cum causa based upon privilege if they
perceived that the petition was an attempt by the applicant to
evade his lawful obligations.... Those who abused the system
were dealt with severely. Duker at 32.
Thus, the cases of "abuse of the writ" that we have discovered
in English common law are few. Most of the cases appear to stem
from debtor-creditor cases in an era of great tension between the
landed aristocracy and the lower strata of society, or from
political struggles among the English courts. The other abuse case
involve intentional abuse, or in one case, a wholesale request for
release by masses of prisoners in London’s jails because of the
epidemic.
III. The Transfer of the Writ to the United States
We have omitted most of the material on U.S. adoption of English
common law, as being too large a topic for inclusion in this memo.
We can fill it in later if necessary. Here, we discuss only a few
notes on the right to the writ in the Colonies.
A, The State Habeas Corpus Jurisdiction
Duker has noted that "the common-law writ of habeas corpus was
in operation in all thirteen of the British colonies that rebelled
in: 1776. In addition, by the time of the Declaration of
Independence, the benefits of the principles of the Habeas Corpus
Act were known in Virginia, North Carolina, South Carolina, and
Georgia." Duker at 115. The Massachusetts Constitution of 1780,
Article VII, stated that the privilege of habeas corpus ought to be
provided "in the most free, easy, cheap, expeditious, and ample
manner." Walker, The American Reception (1961), citing Poore (ed)
10
Federal and State Constitutions (1877) Vol. I p. 972.
At the time of the drafting of the constitution, the focus for
the issuance of writs of habeas corpus was the state courts. Duker
has noted that "the state courts -- in theory and in practice until
the mid-nineteenth century -- retained power to issue habeas corpus
for federal prisoners," Duker at 128, and that "Every state, either
by common, statutory, or constitutional law, secured the writ,"
Duker at 129.
5. The Rederal Hal furisaicel
According to Duker, "Under the intent of the framers any right
to federal habeas would be purely statutory," Duker at 155;
however, Ronald P. Sokol has noted that Congress probably has a
consitutional duty to provide such a statutory basis for writs of
habeas corpus. Sokol, Federal Habeas Corpus, p. 17 (1969). The
Judiciary Act of 1789 gave Federal Courts the right to issue writs
of habeas corpus for federal prisoners. The benefits of habeas
were extended by statute in 1833, to state or federal prisoners
confined under U.S. law, and in 1842, to foreign citizens. See Ex
parte Yerger, 75 U.S. 85, 101-102 (1869). By the Act of 1867 the
Federal Courts could entertain habeas petitions "in all cases when
any person may be restrained of his or her liberty in violation of
the Constitution, or any treaty or law of the United States." See
14 U.S., Statutes at Large 385, Ch. 28, sec. 1, The Act of 1867
extending federal habeas corpus authority to state prisoners, in
the context of the Federal assertion of power in the Reconstruction
era, is largely beyond the scope of this memo, but we can discuss
it further if need be. The Act was called "a bill of the largest
liberty," Duker at 190, citing Representative Lawrence,
Congressional Globe, 39th Congress, 1st Sess., p. 4151.
According to the Supreme Court in Sanders v. United States,
373 U.S. 1, 83 S.Ct. 1068 (1963), U.S. case law assumed the English
rule that res judicata did not apply to writs of habeas corpus.
However, the early Supreme Court cases held that the Supreme Court
had authority to issue writs of habeas corpus under its appellate,
not original, jurisdiction under the Act of 1789. The appellate
review of writs of habeas corpus differed markedly from the English
practice. See Ex parte Burford, 7 U.S. 448, 3 Cranch 448, 2 L.Ed.
495 (Chief Justice Marshall); United States v. Hamilton, 3 U.S. 17,
3 Dallas 17 (1795); In re Kaine, 14 How. 103, 119, 14 L.Ed. 345,
351, and Nelson J. dissenting, 14 How. at 130- 136, 14 L.E4. 356-
358; Ex parte Bollman and Swartwout, 4 Cranch 75, 100 (1807) (Chief
Justice Marshall); Ex parte Milligan, 71 U.S. at 118-119, 4 Wall 2,
18 L.Ed. 281 (1866); Ex parte Yerger, 75 U.S. 85, 8 Wall 85 (1869).
The Court in Milligan, on a writ of habeas corpus to determine
the validity of the jurisdiction of a military tribunal to try
Milligan’s case, stated that:
1a
No graver question was ever considered by this court, nor one
which more clearly concerns the rights of the whole people;
for it if the birthright of every American citizen when
charged with a crime, to be tried and punished according to
law. The power of punishment is alone through the means which
the laws have provided for that purpose, and if they are
ineffectual, there is an immunity from punishment, no matter
how great an offender the individual may be, or how much his
crimes may have shocked the sense of justice of the country,
or endangered its safety. By the protection of the law human
rights are secured; withdraw that protection, and they are at
the mercy of wicked rulers, or the clamors of an excited
people. 71 U.S. at 118-119.
In 1869, the Supreme Court used quite liberal language to
describe its appellate jurisdiction in habeas proceedings, despite,
or because of, the repeal in 1868 of the broad appellate
jurisdiction that had been conferred on it by the 1867 Act. In
evaluating the history of the writ from 1789, the Court commented
that:
[T]he general spirit and genius of our institutions has tended
to the widening and enlarging of the habeas corpus juridiction
of the courts and judges of the United States; and this
tendency, except in one recent instance, has been constant and
uniform; and it is in light of it that we must determine the
true meaning of the Constitution and laws in respect to the
appellate jurisdiction of this court. Ex parte Yerger, 75
U.S. 85, 102.
c, A Note fo) i i -C
5 : rin = ar :
Robert Sharpe has explained one of the key differences between
application of habeas corpus in England in the late twentieth
century and in the United States:
The English courts have a decided aversion to the review of
convictions on habeas corpus....
The reason for the refusal of the English courts to allow
habeas corpus to develop as a post-conviction remedy is
undoubtedly a strong desire to preserve finality in the
criminal process. Until modern times, it was not even always
possible to appeal a criminal conviction, and the judges saw
no reason to depart from the view that trial by jury
guaranteed fairness in criminal proceedings. Now that it is
possible to appeal convictions, there is a marked desire to
confine matters to the normal channels for appeal, and to
stifle the development of any collateral method of attack. If
the appellate courts fail to remedy an injustice, the matter
is left to the discretion of the Home Secretary. This may
12
even allow the matter to come again before the courts as the
Home Secretary has the power to refer a case to the Court of
Appeal.
This contrasts markedly with the use of habeas corpus in the
United States. There, the principal use of the writ is as a
post-conviction remedy. Habeas corpus provides a vehicle for
prisoners convicted in the state courts to have the
proceedings reviewed in the federal courts where a right
guaranteed by the constitution has been violated....__
Sharpe, Robert J. The Law of Habeas Corpus (1976), p. 141
(citations omitted).
IV. Second Petitions in the United States
A. utline t o d utes
In A Treatise on the Writ of Habeas Corpus (1893), William S.
Church described the practice of entertaining successive
application in the United States. Quoted are relevant sections of
Church’s treatise, with Church’s footnotes to appropriate sources
placed in brackets:
§ 93 Second Applications (p. 151ff.):
But where the case has been already heard by another court
upon the same evidence, the application may be refused. [Ex
aw , 5 Binn. 304.] If the applicant grounds his
right to a second writ upon newly discovered evidence, the
application must set it forth, and if it be that of a witness,
the affidavit of the witness must accompany the petition. The
same with evidence which it was out of the power of the
applicant to produce on the first hearing. [Ex parte Foster,
5 Tex. App. 625]. —--at 151
§ 95 Application Ought to be Denied, When (p. 153ff.):
It will be denied where error only is sought to be taken
advantage of [Ex parte Ah Sam, 83 Cal. 620]; or where good
faith is wanting [Ex parte Mears, 3 Utah 50].... --at 157.
§ 189 Newly Discovered Testimony:
We have seen that at common law an adverse decision on one
writ of habeas corpus does. not prevent the issuance of a
second one, and that the petitioner is entitled to the
judgment of every court upon the question of his personal
liberty, when he is deprived of it. The matter may have been
before another court, yet still, in favor of liberty, the
prisoner is entitled to the opinion of each court. Every
judge in the realm may, each in turn, pass upon the question
13
until all have refused to grant the application, or until one
is found who does grant it. [Ex parte Partington, Cox v. Hakes]
Such is the rule in many of the States in the American Union
[In re Perkins, 2 Cal. 424; Ex parte Ellis, 11 Cal. 222; Bell
v. State, 4 Gill 301; 45 Am Dec 130; In re Blair, 4 Wisc.
522], and in the federal courts.[Ex parte Kaine, 3 Blatchf. 1]
Statutes, however, in some of the states change the rule that
the refusal of one writ is no bar to another application for
it. This is the case in Mississippi. -- at 276.
[See 1413 Code of 1871 and Ex parte Pattison, 56 Miss. 161].
§ 386 Judgments in Criminal Cases -- Writ of Error, etc.:
... the doctrine of res judicata, is not, in the absence of
statutory provisions, held applicable to the decision of one
court or justice on a writ of habeas corpus, or from an order
refusing a writ of habeas corpus, or from an order refusing to
discharge the prisoner. There was, in fact, no need for such
an appeal or writ of error as a renewed application could be
made to every other judge or court in the realm, and each
court or judge was bound to consider the question of the
prisoner’s right to a discharge independently, and not to be
influenced by the previous decisions refusing discharge. -- at
570.
The prisoner is entitled to the opinion of all the courts as
to his freedom, and in his applications for the writ of habeas
corpus may exhaust the entire power of the state -- at 571.
... an order on habeas corpus affirming the legality of
imprisonment, or remanding the prisoner, is not a bar to
another application for the writ before another officer or
court, even upon the same state of facts. -- at 571.
§ 389 Second Applications:
... though the decision is conclusive upon all matters which
were or might have been investigated upon the first hearing,
it does not preclude the issuance of a second writ based upon
a new state of facts, or upon new and important evidence,
which may entitle the prisoner to a discharge. -- at 581-2
[The Mississippi statute requires new facts, not new evidence of
old facts (at 583), see 65 Miss 99; 62 Miss 158, 57 Miss 177; 56
Miss 161, cited below. ]
[Under Texas statute, Code 189 (see p. 585), second application for
writ may be obtained when "important testimony has been obtained
which it was not in his power to produce at the former hearing."
see Texas cases cited below. ]
14
B. State Courts Allowing Successive Petitions
The right to be heard on successive applications is illustrated by
the following state cases. We have cititions for numerous
additional cases, and with time, could obtain the sources and
excerpt from them.
In re Snell, 31 Minn. 110, 112 (1883) (prior refusal of writ does
not bar subsequent writ, citing People v. Brady, 56 N.Y. 182, 192,
Ex parte Kaine, 3 Blatchf. 1, 5, King v. Suddis, 1 East, 306, 314,
Ex parte Partington, 13 M. & W. 679, 682.) The court stated that:
In some courts there appears to be a disposition to make the
right to a second writ a question of expediency for the court
to determine. This occurs to us to be a dangerous notion.
The ‘writ of liberty’ is a writ of right. When we consider
its origin, its history, and its purposes, the transcendent
necessity of its issuance, dependent upon the right of the
petitioner and not upon the discretion of anybody, is
incontestable.
In re Perkins, 2 Calif. 424, 430 (1852), the court denied writs of
habeas corpus to two fugitive slaves, but held that "The statute
never contemplated that a judgment upon one writ should be a bar to
any further proceeding, but looks to a different result; and any
prisoner may pursue his remedy of habeas corpus until he has
exhausted the whole judicial power of the State. How far judges
would go in their examination after a case had once been
determined, is a question which must rest exclusively in their own
sound judgment; but a previous examination cannot prevent their
right to re-examine the whole case if they should think it proper
to do so." at 430.
Ex parte Ellis, 11 Calif. Repts. 222 (1858) (petition for writ of
habeas corpus cannot be sought outside the county unless for good
cause.)
In re Ring, 28 Cal. 247 (1865). Under the earlier California
constitution the prisoner could seek a writ of habeas corpus "in
succession to every Judge of every Court" in the State, but the new
Constitution restricted such petitions to the Justices of the
district or County in which he is imprisoned, at 251.
In re Blair, 4 Wis. 522, 532, the court held that:
If a court or officer illegally imprisons a person, and
afterward, upon an application for his release, refuses the
application, the matters involved can no more be said to be
res adjudicata than if no application for his release had been
made. In either case the person is in prison by the order of
the court or officer, and any number of adjudications by such
court or officer affirming the legality of the imprisonment,
15
cannot change its character, nor affect the rights of the
relator.
Hammond v. The People, 32 Ill. 446 (1863) (Court holds no writ of
error may lie upon a writ of habeas corpus, but note Dissent by
Breese, citing U.S. and G.B. cases on appeals from writs, Yates v.
The People, 6 Johns., 338 (Court of Errors of N.Y.. Breese also
notes, at 472, that "It is far better this inconvenience should be
suffered, by allowing the writ, than that an innocent person should
remain without redress, the victim of arbitrary power, alike
implacable and relentless."
C. i uri Ss x
, 36 Mo. App. 75, 77 (1889), under the Missouri
statute section 2672, prisoner must be remanded to prison on a
second writ of habeas corpus where the first writ remanded the
prisoner for "an offense adjudged not bailable."
D. North Carolina Statute requires an affidavit that the
alit i is =} a ead ee
judi wri f CO
See In re Brittain, 93 N.C. 587, 588 (1885) (Under North
Carolina law, a petition for a writ of habeas corpus must state
"that the legality of the imprisonment or restraint has not been
already adjudicated upon a prior writ of habeas corpus, to the
knowledge or belief of the applicant." Writ denied on that, and
other grounds.)
E. as uir w_tes whi i e
i eo Ss i the defen i
to light at the former trial.
The Texas statute, while placing limits on subsequent
applications, was liberally interpreted by the courts to permit new
evidence or new claims to be introduced by habeas petitioners:
oT ate, 43 Tex. 197 (1875). The Texas Code of
Criminal Procedure states that "A party may obtain the writ of
habeas corpus a second time by stating in the application therefor
that since the hearing of the first application important testimony
has been obtained, which it was not in his power to produce at the
former hearing. He shall also set forth the testimony so newly
discovered, and if it be that of a witness, the affidavit of the
witness shall also accompany the application. (Pashcal’s Dig., art.
2642.)" 43 Tex. at 199; A thwarting of the duty of the State to
enforce the criminal laws "may be done by abusing and perverting
the privileges of the writ of habeas corpus as well as by any other
means. This is a great writ of liberty, by being left unshackled
with forms and conditions in the mode of obtaining it. Therefore
it can easily be obtained where there is no foundation for it in
16
fact or in law. This would be an abuse of the privilege which, if
frequently resorted to, might make it necessary to impose such
limitations and restrictions upon the granting of it as would
materially impair its efficacy. It is a privilege too dear to
freedom to be endangered by intentional abuse of it by those who
are connected with the administration of the laws." at 204; writ
denied.
, 5 Tex. App. 625 (1879), under Texas statute "A
party may obtain the writ of habeas corpus a second time by stating
in the application therefor that since the hearing in his first
application important testimony has been obtained, which was not in
his power to produce at the former hearing. He shall also set
forth the testimony so newly discovered; and if it be that of a
witness, the affidavit of the witness shall also accompany such
application." Pasc. Dig., art. 2642., in Foster at 643. The Court
held that "...in perfect consonance with the broad principles of
justice and human liberty upon which the writ is founded, and for
the better protection and security of which its privileges were
intended mostly to subserve [,] [w]e are of opinion that the
statute intended to confer the right in two classes of cases:
First, where important testimony has been obtained, which, though
not newly discovered, or which, though known to him, it was not in
his power to produce at the former hearing; second, where the
evidence was newly discovered." at 643-644; "If the showing itself
discloses, we will say, want of diligence, or that the evidence is
cumulative, or that it was intended to impeach a witness, or any
other fact which whould [sic] render it insufficient or invalid on
a motion for new trial, then the judge or court would be fully
authorized in refusing the writ, and his refusal would be
conclusive; for an appeal does not lie from the refusal of a
district judge to grant a writ of habeas corpus." at 644.
, 20 Tex. App. 498 (1886), reversed the denial of a
writ for habeas corpus seeking a lower bail, and held "Article 189
gives him the second writ in case of newly discovered important
testimony, which was not in his power to produce at the first
hearing. We therefore conclude that if the first writ issue and is
heard before indictment, the party is entitled to a second writ
after indictment found, but that he is not entitled but to one writ
either before or after indictment found, unless the case is made to
come within the provisions of articles 155 or 189." at 508.
F. Mississippi Statute Requires New Facts to Entertain
Successive Petitions
Mississippi’s statute greatly curtailed the opportunity for
subsequent habeas petitions based on new grounds:
Ex parte Hamilton and Eubanks, 65 Miss. 98 (1887), One writ was
made a bar to another by Miss § 2534 Code 1880, which states that
"the judgment rendered on the trial of any writ of habeas corpus
17
shall be conclusive until reversed, and, whilst so in force, shall
be a bar to another habeas corpus in the same cause, or to any
other proceeding, to bring the same matter again in question,
except by appeal, or by action for false imprisonment...". The
Court held that
Newly discovered evidence, which, added to the evidence on the
first trial would vary the case cannot avoid the bar of the
former judgment. If some decisive fact, in itself conclusive
of the innocence of the prisoner without regard to the
evidence in the first trial (such as the person charged to
have been killed being produced on the like) would avoid the
bar of the first judgment, it is sufficient to say that is not
the case before us. Id. at 141.
The court disagreed with ex parte Patterson that a mistrial would
furnish ground for a new writ, Id. at 143. In a concurring
opinion, Arnold, J. wrote that: "At common law an adverse judgment
on habeas corpus was no bar to another writ; and a subject deprived
of his liberty might resort in turn to every judge of the realm,
and be discharged or bailed by either one of them who thought
proper to do so; notwithstanding each of the other judges may have
decided to the contrary. This was the evil sought to be remedied
by Section 2534 of the Code." Id. at 145.
In Ex parte Bridewell, 57 Miss. 177, 182 (1879), under Mississippi
Code 1871, § 1413 making the judgment on any prior writ of habeas
corpus a bar to another habeas corpus "to bring the same matter
again in question", the Court held that
the conclusiveness of the judgment is limited to the
conditions existing at the time, and does not preclude
subsequent inquiry into a new state of case made, not by new
evidence of a formerly existing state of case, but by facts
occurring subsequently which essentially vary the case, and
make it not the same matter before adjudicated. Matters
arising subsequently to the prior judgment may bhe
investigated anew, for they have never been decided. All
matters of fact which existed and might have been litigated in
the former proceeding were concluded by it...The evil sought
to be remedied by the statute was the repetition of
proceedings by the writ of habeas corpus as often as a judge
could be found to grant it, and the remedy given is the denial
of more than one writ of habeas corpus in the same matter....
Id. at. 182.
Here, the court allowed a hearing on a second writ of habeas
corpus, and held that the first writ was not res judicata. In the
first hearing on the writ, the prisoner was discharged on bail
prior to indictment. In the hearing on the second writ, the
prisoner was denied his writ for bail after indictment. Thus, the
only change in facts was the intervening indictment, not the
18
underlying facts of the offense.
Ex parte Pattison, 56 Miss. 161 (1878):
At common law, an adverse decision on one writ of habeas
corpus did not preclude a second one. Indeed, so tender was
the law of the liberty of the subject, that he might, when
deprived of it, resort in turn to every judge in the realm,
and was entitled to be enlarged if any one of them thought
proper to bail or discharge him. Such is still the law in many
States of the American Union. 2 Cal. 429; 3 Blatchf. 1; 4
Wisc. 522; 4 Gill ‘301; 5 Ala. 130. Id. at 162-163.
Our statute has changed this. Sect. 1413, Code of 1871,
declares that "the judgment rendered on the first trial of any
writ of habeas corpus shall be conclusive until reversed, as
hereinafter provided, and, whilst so in force, shall be a bar
to any other proceedings to bring the same matter again in
question, except by appeal." etc.
The object and effect of this is to make the decision on a
writ of habeas corpus "res adjudicata," and conclusive as to
all matters which were, or might properly have been,
investigated upon the hearing thereof. We do not think,
however, that it will preclude the issuance and maintenance of
a second writ, based upon subsequently occurring events. So
to construe the statute might work the greatest injustice and
hardship, and is not demanded by its language. But the new
writ must be based upon facts which have actually occurred
since the hearing of the original writ, and not upon a claim
of newly discovered testimony as old facts; for otherwise the
prisoner could make out his claim by piecemeal, and thus, by
repeated application upon successive claims of newly
discovered testimony, defeat the element of finality and
conclusiveness which the statute gives to the proceeding.
Id. at 163. In the case at bar, the newly occurring facts that
made the petition for the writ of habeas corpus reviewable were the
mistrial and the serious impairment of the relator’s health, id. at
163.
In Ex parte Nichols, 62 Miss. 158 (1884), after a change in
Mississippi law made testimony by defendants admissible, defendants
sought a second writ, but the Court held that:
The proposition, therefore, is to disprove guilt, not by
reason of any new fact occurring since the former trial, but
by introducing new testimony as to the old facts, the only
reason urged for this demand being that they may produce
evidence now for the first time admissible. Whatever merit
there may be in this contention, it is at least nothing more
than an attempt to obtain a new hearing upon the ground of
19
newly discovered evidence; nor can it make any difference in
principle whether this evidence is now first made legal, or
whether it has been now for the first time discovered. It
cannot be seen how evidence for the first time made admissible
by law, stands on any different footing in this inquiry from
evidence which has just been discovered in cases where no
remissness can be charged against the parties applying.
But the distinct announcement has twice been made in this
court that a second writ of habeas corpus can only be granted
where some supervening fact has taken place which alters the
substantial aspects of the case, and that it cannot be done
merely upon the ground of newly discovered evidence. Whether
such evidence could or could not have been discovered before
by the exercise of diligence is wholly immaterial. To sustain
the new writ there must be some new fact, which, happening
since the former trial, has changed the legal attitude of the
case; as by the finding of an indictment whereby the legal
aspect is changed, or where, by a mis-trial before a petit
jury, it may be plausible argued that the legal presumption
that the proof is positive or the presumption great has been
negatived by the failure of the jury to agree. Ex parte
Patterson, 56 Miss. 161; Ex parte Bridewell, 57 Miss. 171."
Nichols, 62 Miss. at 159-160.
G. [Early Federal Cases and the Abuse of Writ
Federal cases affirmed the right to subsequent habeas
petitions as long as they were not an abuse of the writ:
Ex parte Kaine, 3 Blatchf. 1 (S.D.N.Y. 1853), 14 Fed. Cas. p. 78
{Case No. 7,597). The Court held that the Federal Courts are
governed by the common law of England as it stood at the time of
the Constitution, and at common law, "according to that system of
laws, so guarded is it in favor of the liberty of the subject, the
decision of one court or magistrate, upon the return to the writ,
refusing to discharge the prisoner, is no bar to the issuing of a
second or third or more writs, by any other court or magistrate
having jurisdiction of the case; and that such court or magistrate
may remand or discharge the prisoner, in the exercise of an
independent judgment upon the same matters" so that the prior
refusal of the habeas petition by the circuit court does not
relieve this circuit judge "from inquiring into the legality of the
imprisonment," at Fed Cas. p. 80; writ granted for "illegality in
the proceedings under the [extradition] treaty" with Britain, at
Fed. Cas. p. 82.
a i , 6 McLean 355 (S.D. Ohio 1855), 20 Fed. Cas. p.
969 (Case No. 11, 935) (implicitly allows second writ).
EX parte Cuddy, 40 Ted. Rep. 62 (S.D. Calif. 1889). District
20
Court’s denial of writ of habeas corpus was affirmed by the Supreme
Court, 131 U.S. 280, and defendant brought second application for
writ to Circuit Court. Court, in denying writ, held that defendant
had voluntarily omitted a claim from his earlier petition, and that
no new facts had been alleged, so that the court would not now hear
his petition. We cite from the case at length because of the
court’s exposition of the historical development of successive
petitions and abuse of writ:
The additional matter set forth in the present application
consists only of the testimony which was before the district
court when the question of contempt charged against the
petitioner was considered, and which might have been contained
in the record of the supreme court, and, if deemed important
for the due consideration of the validity of the judgment of
the district court, should have been thus presented... 40 Fed.
Rep. at 63-64.
The petitioner, in the present application, as appears from
what has already been said, supplies what was omitted in his
record to the supreme court. At the outset the question is
thus presented whether it is permissible for a party to appeal
from a judgment denying his application, voluntarily omitting
a material portion of his case, and, after invoking the
judgment of the appellate court upon the record presented, and
failing therein, to renew his application before another court
or justice of the United States, without first having obtained
leave for that purpose from the appellate court... Id. at 64
(emphasis added).
I return, therefore, to the question of whether the petitioner
can renew his application for a writ after the decision of the
supreme court on his appeal to that tribunal, without first
having obtained its leave. If he can renew it on another
record, which may also be in some other particular defective,
and so on indefinitely whenever he fails on appeal, it is
plain that the writ may often become an instrument of
oppression, instead of a means of relieving one from an unjust
and illegal imprisonment. The writ of habeas corpus, it is
true, is the writ of freedom, and is so highly esteemed that
by the common law of England applications can be made for its
issue by one illegally restrained of his liberty to every
justice of the kingdom having the right to grant such writs.
No appeal or writ of error was allowed there from a judgment
refusing a writ of habeas corpus; nor, indeed, could there
have been any occasion for such an appeal or writ of error, as
a renewed application could be made to every other justice of
the realm. The doctrine of res judicata was not held
applicable to a decision of one court or justice thereon; the
entire judicial power of the country could thus be exhausted.
Ex parte Kaine, 3 Blatchf. 5, and cases there cited. The same
doctrine formerly prevailed in the several states of the
21
Union, and, in the absence of statutory provisions, is the
doctrine prevailing now. In many instances great abuses have
attended this privilege, which have led in some of the states
to legislation on the subject. And, in the absence of such
legislation, while the doctrine of res judicata does not
apply, it is held that the officers before whom the second
application [Id. at 65] is made may take into consideration
the fact that a previous application had been made to another
officer and refused; an in some instances that fact may
justify a refusal of the second. The action of the court or
justice on the second application will naturally be affected
to some degree by the character of the court of officer to
whom the first application was made, and the fullness of the
consideration given to it. I hardly think that an ordinary
justice would feel like disregarding and setting aside the
judgment of a magistrate like Chief Justice Marshall, or Chief
Justice Tanney, who had refused an application for a writ
after full consideration... In what I have said I refer, of
course, to cases where a second application is made upon the
same facts presented, or which might have been presented, on
the first. The question is entirely different when subsequent
occurring events have changed the situation of the petitioner
so as in fact to present a new case for consideration. In the
present application there are no new facts which did not exist
when the first was presented. And under the law of the United
States an appeal is allowed to the supreme court where the
writ is refused, -- a provision which would seem to have been
adopted to prevent a second application upon the same facts
which were or might have been presented in the first instance.
I am of the opinion that in such a case a second application
should not be heard, except where the judgment of affirmance
by the supreme court is rendered without prejudice to, or with
leave to make a new application by, the petitioner. he need
not have appealed from the refusal of the district court; he
could have applied to the circuit judge, and also, afterwards,
to the circuit justice. He did not think proper to pursue
that course, but took his appeal to the supreme court, and
during the argument there no suggestion was made that the
record did not fully disclose the petitioner’s case; and when
that tribunal decided the case, no request was made for
permission to renew the application; and now the imprisonment
of the petitioner under the judgment affirmed by that court is
drawing to a close; it will expire with this day. This writ
must therefore be dismissed, and the prisoner remanded; and it
is so ordered. Id. at 66.
In re Johnson, 46 Fed. Rep. 477 (D. Mass. 1891), the Court held
that the defendant should have pursued a writ of error, not a writ
of habeas corpus, on the denial of her prior motion in arrest of
judgment; however, the court granted her writ of habeas corpus
(thus her second writ, based on different grounds than the first)
on the grounds of illegal imprisonment because the sentence imposed
22
was different than that provided for by statute.
Duker has noted that the courts "have found nothing in the
tradition of habeas corpus that requires them to tolerate needless
litigation, or to entertain collateral proceedings whose only
purpose is to vex, harass, or delay. Habeas corpus will be denied
where the issues have been previously adjudicated." (Duker at p.6,
citations omitted)
Duker goes on to note that:
Before its introduction into the American legal system, habeas
corpus had been "esteemed the best and only sufficent defense
of personal liberty." [Ex parte Yerger, 75 U.S. 85, 95 (1869)]
Blackstone called it "another Magna Carta." [Commentaries,
vol. 3, p. 136 (1770)] In the United States, the writ
continues as the "symbol and guardian of individual
liberty. [Peyton v. Rowe, 391 U.S. 54, 59 (1968)] As such, a
liberal judicial attitude has been considered appropriate in
its administration.[Steward v. Overholser, 186 F.2d 339
(1950) ] The American judiciary has been aware of the
progressive development of the writ in England. The writ’s
propensity for liberal growth was accelerated by the American
constitutional and legal system. Mr. Chief Justice Chase, in
Ex parte Yerger, wrote: "the great spirit and genius of our
institution has tended to the widening and enlarging of the
habeas corpus jurisdiction of the courts and judges of the
United States." [75 U.S. at 102] Mr. Justice Black a century
later observed: "[Habeas corpus] is not now and never has been
a static, narrow, formalistic remedy; its scope has grown to
achieve its grand purpose -- the protection of the individual
against erosion of their right to be free from wrongful
restraints upon their liberty." [Jones v. Cunningham, 371,
U.S. 236, 243 (1963] Consequently, the Supreme Court in 1973
acknowledged that "[w]hile the ‘rhetoric celebrating habeas
corpus has changed little over the centuries,’ it is
nevertheless true that the functions of the writ have
undergone dramatic changes." [Hensley v. Municipal Court, San
Jose -- Milpitas Judicial District, 411 U.S. 345, 349 (1973)
(Duker at 7, citations from footnotes inserted in brackets).
Duker has also noted "the facility with which the state writs
issued at that time" [of drafting of the Constitution]. p. 8.
Moreover, Justice Murphy, in Wade v. Mayo, 334 U.S. 672, 680
(1947), in a case involving exhaustion of state remedies, stated
that "The prevention of undue restraints on liberty is more
important than mechanical and unrealistic administration of the
federal courts." Duker at 205-206.
23
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COPR.
CITATIONS LIST (Page 1)
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YOU ARE AT THE END OF THE CITATION LIST. PLEASE ENTER YOUR NEXT COMMAND.
(Fla.) 1931.
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Total Documents: 9
Stame—a. Dugger 921 -F.24-1125
Card, Dugger 911 F.2d 1494
Clisby v. Jones 907 P.24 1047
BertoIotii v. Dugger 883 F.24 1503
Knight v. Dugger 863 F.24 705
Stephens v. Kemp 846 F.2d 642
Clark wv. Dugger 834 F.24 1561
Thompsomg, Wainwright 787 F.2d 1447
Martin v. Wainwright
515
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MEMORANDUM
To: Jack Boger
From: Ann Hester
Date: October 18, 1990
Re: Brizona v. Fulminante
Arizona Supreme Court decision:
State v. Fulminante, 778 P.24d 602 (1989).
Facts:
Defendant was convicted of murdering his stepdaughter. Her
body was found, shot at close range and choked, on September 16,
1982, two days after the defendant had reported her missing. He
became a suspect in the killing after his wife contradicted his
statement that he and the victim had had a good relationship and
that the victim knew how to use a gun. The police investigated
and uncovered defendant's felony record; when they found him
with a gun, they arrested him for possession of a firearm by a
felon, and he was convicted. After serving two vears for this
conviction, Defendant was released and was again caught and
convicted of possession of a firearm. He was serving another
term for this offense when he made the confession to another
inmate that resulted in his conviction for the murder of his
stepdaughter.
While serving time for the second firarm possession
conviction, a rumor began circulating in the prison where
defendant was incarcerated that he had killed a child. and other
inmates were "roughing up" defendant. F.B.I. informer Sarivola,
who had become friendly with defendant, offered defendant
protection from the other inmates if defendant would tell him the
truth about the murder. Defendant told Sarivola that he had shot
his stepdaughter with a .357 magnum, that he had sexually
assaulted her and choked her, and that he had hidden the murder
weapon at the scene of the crime. Later, when defendant was
released from proson, Sarivola and his girlfriend picked
defendant up from prison. The girlfriend asked defendant where
he wanted to go, and he told her he couldn't go back to Arizona
because he had killed a girl there. Apparently defendant told
the girlfriend as much as he told Sarivola.
The trial court refused to suppress evidence of the
statements made to Sarivola and his girlfriend, and sentenced
defendant to death. Defendant presented several issues on
appeal; the Arizona Supreme Court rejected all grounds except
the ground that the defendant's confession to Sarivola was
coerced. The court agreed that the confession to Sarivola was
coerced and should have been suppressed, but held that because
the statement to Sarivola's girlfriend was not coerced and was
not "fruit of the poisonous tree," the error resulting from the
admission of the jailhouse statment was harmless bevond a
reasonable doubt. Fulminante, 778 P.24d at 611.
The court later reconsidered the harmless error issue and
filed a supplemental opinion holding that the admission of
evidence from the statements was not harmless error. The court
noted that all the cases it relied upon in its earlier decision
concerned confessions that were in violation of the Miranda rule,
not coerced confessions in violation of the defendant's Fifth
Amendment rights. The court held that "there is an unbroken line
of authority supporting the rule that, although the receipt of a
confession obtained in violation of Miranda may be harmless, the
harmless error doctrine does not apply to coerced confessions,”
and it is a clear violation of the law to consider a coerced
confession harmless error. Id, at 6258-27.
oe
To: Professors Amsterdam and Boger
From: Dan Abrahamson and Michael Barr
Date: 27 July 1990
Re: Additional historical sources on Abuse of Writ
We found some additional sources that are on point. We hope that
it may still be of some use to you.
Supreme Court Cases
In Ex parte Watking, 3 Pet. 193 (1830), Chief Justice Marshall
denied petitioner’s writ of habeas corpus seeking discharge for
imprisonment for indebtedness. After four years in jail, Watkins
brought a second petition, which was granted by Justice Story, in
Ex parte Watkins, 7 Pet. 568 (1833).
Ex parte Rovall 117 U.S. 24%, 250, 254, 6 8.Ct. 734, 29 L.Ed. 863,
871-872 (1886). Federal courts have authority on writs of habeas
corpus to question the validity of the imprisonment of state
prisoners, where violations of constitution are alleged; however,
the writ was not ripe, because no state court had adjudicated the
merits of the claim. The writ was denied "without prejudice to the
right of the petitioner to renew his applications to that court at
some future time..."; See also Ex parte Fonda, 117 U.S. 516, 6
S.Ct. 848, 29 L.Ed. 994. [Note that the general rule that U.S.
courts prefer not to exercise habeas jurisdiction until after full
adjudication in the state courts is opposite from the British
common law practice of using the writ as a review of first resort.]
Matter of Spencer, 223 U.S. 653, 33 S.Ct. 709, 57 L.Ed. 1010
(1913). In appeals in state courts, the defendants did not raise
the Constitutional claims that they raised in their state and
federal habeas petitions. Id at 658 (1012). The Court stated that
"Petitioners certainly had ample opportunity to avail themselves of
the objections they made to the validity of the sentences." Id. at
659 (1012). The Court would not hear the claim unless it was
raised in the regular state court process, because if it:
gave freedom to omit such defenses in the state court and
subsequent review by this court, and yet the accused have an
absolute right to habeas corpus. And this case shows the
necessity of the application of the rule. We have pointed out
the opportunity petitioners had to object to their sentences
when they were imposed, and successively to attack their
validity in the appellate tribunals of the state and in this
court. And this satisfies justice. More than this, that for
which petitioners content, [660] will make unstable and
uncertain the laws of the states. If defenses may be omitted
at trials, rights of review omitted, and yet availed through
habeas corpus, the whole course of criminal justice will be
CIMSEURG. FELDMAN = EBREZ= = Fo.
deranged, and, it may be, defeated...." Id. at 660-661 (1013).
The petitions were dismissed. Although the opinion is quite
muddled, it seems that the court erroneously relied on cases where
defendants sought writs before final adjudication in state courts,
see id. at 660 (1013).
Other Federal Cases
Johnson v. United States, 3 Mclean 89, 13 Fed. Cas. p. 867, 868
(Fed Cas. No. 7,418) (D. Mich. 1842), per curiam. Court denied
writ of habeas corpus that claimed statute of limitations had run,
because "if there was a bar under the statute, it should have been
pleaded. No such plea was interposed, and the question is, whether
the objection can be raised on a writ of habeas corpus. We suppose
it cannot. By failing to set up the defence, the defendant waived
it. And if this were not the legal effect of failing to set up the
statute, it is clear that on the habeas corpus, the court cannot
look behind the sentence of the court, where the jurisdiction is
undoubted."
Ex parte Moebus, 148 Fed. 39, 40-41 (Cir. Ct., D. New Hampshire
1906), Putnam, Cir. J. Writ denied because the court held that no
federal question had been raised by defendant’s petition. The
court also commented:
At common law, it was settled that a refusal by any judge to
grant a writ of habeas corpus, or a refusal of any judge to
discharge from custody a petitioner by, or in behalf of, whom
such a writ had been granted, did not constitute res judicata,
but that the petitioner was at liberty to apply to any other
judge, and so on until the whole series of judges had been
exhausted. It is, however, commonly understood that the rule
is practically otherwise in those Jurisdictions where
statutory rights of appeal, or writs of error, have been
granted with reference to such proceedings, and that, either
as a rule of law or a practical rule of administration, no
judge would allow a writ when some other judge has refused it;
but that any subsequent judge would remit the applicant to his
remedy by appeal, or writ of error, unless some substantial
change in the circumstances had intervened."
In re Kopel, 148 Fed. 505, 8506 (S.D.N.¥Y. 1906). Hough, J.)
The learned District Attorney by the return to the writ first
urges that a similar application, based upon the same facts,
and tendering the same issue of law, has been decided
adversely to the relator by a justice of the Supreme Court of
this state, from whose decision no appeal seems to have been
taken, if such appeal be permissible. While it is, I think,
within the discretion of any court to prevent an abuse even of
a writ of right and freedom, the doctrine of res adjudicata
cannot yet be said to apply in matters of habeas corpus.
2
— aa EI iE === CIHESEURG. FELIFMAH
Undoubtedly, the state court has jurisdiction in this matter
as ample and complete as is possessed by the courts of the
United States... There being, however, no federal statute
limiting the common-law right of an applicant for habeas
corpus to successively petition every judge having authority
in the premises (Ex parte Cuddy [C.C.] 40 Fed. 65), without
regard to the fate of his successive .applications, and not
being made aware of the grounds of the decision of the Supreme
Court of New York by any opinion on file, I consider myself
bound to dispose of the matter as an original application.
State Cases
In re Stephen, 1 Wheel C.C. 323 (N.Y. 1816), a case in which a
runaway slave was remanded to prison, the court held that "If the
Court remand a prisoner, that does not prevent the same Court, or
any judge out of Court, to allow another writ, and to bail or
discharge, in their discretion." Id. at 326.
People ex rel. lawrence v. Brady, 56 N.Y. 182, 192 (1874). In
granting the writ of habeas corpus because affidavits charging the
defendant with a crime in another state were insufficient, the
Court stated that "a decision under one writ refusing to discharge
him, did not bar the issuing of a second writ by another court or
officer." That proposition was cited with approval in Re Quinn, 2
Avp. Div. 103, 27 N.Y. Supp. 534.
The People ex rel. McIntyre v. Hurlbert, 67 How. Pr. 362 (N.Y.
1884), Bartlett, J. "A decision under one writ of habeas corpus
refusing to discharge a person restrained of his liberty does not
bar the issuing of a second writ by another court or officer. This
is the law of England, of the federal courts and of the state of
New York (Ex parte Partington, 13 M. & W., 679; Ex parte Kaine, 3
Blatchford, 1; People ex rel. Lawrence agt. Brady, 56 N.Y., 182%:
However, the immigration question is properly handled by the
federal courts, so that the court declined to entertain the
petition.
Bell v. State, 4 Gill. 301, 45 Am. Dec. 130 (MD 1846). The court
denied the writ because it found that the errors should have been
fixed on appeal, not by writ of habeas corpus; however, the court
noted that a decision on the writ "is not final and conclusive upon
the party applying for the writ; as he may prefer a similar
application, to any other judge or court of the state." 45 Am. Dec.
at 131.
State v., Brearly, 5 N.J.L. 639, 644 (N.J. 1819) (State courts have
common law right to hear habeas petitions from federal prisoners).
Maria v. Kirby, 12 Mon. B. 542 (KY 1851). Slave was freed in
Pennsylvania on writ of habeas corpus but returned to Kentucky and
re-enslaved. Pennsylvania writ allowing discharge held not res
judicata in Kentucky, because "[i]f the decision had been against
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Maria, we assume that it certainly would not have been conclusive
against her in Pennsylvania, but she might have obtained other
writs, time after time, until she found a Judge who would decide
the law in her favor." Id. at 550.
Ex parte Lawrence, 5 Binn. 304 (Pa. 1812), per curiam. “We do not
think that the act of assembly [of 1785] obliges this Court to
grant a habeas corpus, where the case has been already heard upon
the same evidence by another court; and we do not think it
expedient in this case, because it has been already heard upon the
same evidence, and the party is not without remedy, as he may
resort to a homine replegiando. The Court are not, however, to be
understood as saying, that they have not authority to issue a
habeas corpus in such a case, if they should think it expedient."
Cormack v. Marshall, 211 T11. 819, 524 (1904). Child custody case,
but the court noted that "If the question presented were one
between the individual seeking his liberty from alleged unlawful
restraint, then, by an unbroken line of decisions in this State, we
would be free and bound to hold that an order in one proceeding
before either a court or a judge thereof is not a final order from
which an appeal or writ of error would lie and could not be pleaded
as a bar to another or further proceeding."
EX parte Clark, 208 Mo. 121, 106 S.W. 990, 996 (1907) Lamm, J. Res
judicata does not apply to a decision on habeas corpus remanding
the prisoner, because "the liberty of the citizen is an immediate
jewel of the law, to be sacredly cherished and hedged about withal.
Therefore, no mere legal fictions, good for use in matters of less
moment, or matter of punctilio, or comity between courts, may
shield any one restraining an American citizen of his liberty from
having the why and wherefore of that restraint summarily looked
into by any court of competent jurisdiction in the land." See also
Missouri cases in our earlier memorandum.
EX parte Justus, 3 Okl. Cr. R. 111, 104 Pac, 933, 9235 (Okl. Cr.
App. 1909). The court held that "the principle of res adjudicata
where not otherwise provided by statute, has no application in
habeas corpus, and a decision on one writ is not bar to proceedings
on subsequent habeas corpus proceedings. Ex parte Johnson, 1 OKl.
Cr. R. 414, 28 Pac, 461." The court also doubted whether the
legislature could legally limit the common law right to relief when
justice required it: "Relief from illegal imprisonment by means of
this remedial writ is not the creature of any statute... This writ
cannot be abrogated or its efficiency curtailed by legislative
action...” 104 Pac. at 939.
EX parte Polk, 101 Tex. Cr. 313, 276 8.13, 267 (Tex. Cr. App. 1928).
Under Texas law, "a party may obtain the writ of habeas corpus the
second time by stating in the application therefor that, since the
hearing of his first application, important testimony has been
obtained which it was not in his power to produce at the former
hearing." See also Ex parte Rosson, 24 Tex. App. 226 (1887), and
SCIHNSEREURGC. FELDMAN 5 ERESS FF. as
cases 1n our earlier memorandum.
Miskimins v. Shaver, 8 Wyo. 392, 58 Pac. 411 (1899) (confirms right
to successive petitions in Wyoming; majority and dissent have
detailed discussion of other states, mostly already cited in our
earlier memorandum; Washington state apparently did not allow
successive petitions, but we have not examined those cases).
Miscellaneous
In the previous memorandum, under the "Plague, Privilege and
Trickery" section, we cited Style 128. We now have a fuller
quotation, but still few facts. The prisoner had sought a writ of
habeas corpus to be a witness at a trial in Darby Shire, but the
court denied the writ, because "this is but a trick of the party
himself to gain his liberty that he may go a hawking and hunting
this long vacation." Also cite as Trin. 24 Car. Banc. Req.
The following summary of early federal habeas law if from Ferris &
Ferris, Extraordinary Legal Remedies, which was cited by the
Supreme Court in Sanders:
§ 55. Res Judicata. -- By the great preponderance of authority
the principle of res judicata, when not otherwise provided by
statute, has no application to habeas corpus proceedings where
there is a refusal to discharge; a decision on one writ is no
bar to subsequent proceedings. [Ex parte Moebus, 148 Fed. 39,
40: Ew parte Ciark, 208 Mo. 121, 106 S.W. 990, 15 L.R.A., N.S.
389; Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 6 L.R.A. 672; Ex
parte Justus, 3 Okl. Cr, 111, 104 Pac. 9233, 935, 25 L.R.A.,
N.S. 483, 487; Ex parte Miskimins, 8 Wyo. 392, 58 Pac. 411, 49
L.R.A. 831.] And this is especially so where the facts make
its assuance expedient. [Miskimins]. At least this is so
where there has been a change in the circumstances of the
party since the issuance of the first writ. [Note 11 Ann. Cas.
129]. Petitioner may address the courts over and over again,
provided application be made to a superior court. [Re Walker,
234 S.W. (Mo.) 866] And this is so in the Federal courts,
where petitioner is remanded, [Church, Habeas Corpus, Sec.
386] unless, by virtue of statute, an appeal has been taken on
the same state of facts. [Ex parte Cuddy, 40 Fed 62, 65]
There gfe spme decisions holdin that the judge to whom the
acon spplication is made may ans ider the fact that a former FPP+CAP4On as been refused, and refuse the apglication’ on
{fet ground; [1 Ann. Cas. 260] but this is not the general
rule, [Ex parte Clark, 208 Mo, 121, 106 S.¥W. 990, 15 L.R.A.,
N.S., 389] at least in criminal cases. [Church Sec. 386].
(Citations from relevant footnotes inserted in brackets).
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TO: Jack
FROM: Kaoru
DATE: June 16, 1987
RE: McCleskey's Massiah/Henry claim
I have looked at Eleventh Circuit cases interpreting the
Massiah/Henry rule that post-indictment incriminating statements
made by an accused to a government informant are inadmissible
as a violation of the sixth amendment right to counsel. Assuming:
that we can establish some state involvement in the conversation
between Offie Evans and McCleskey, we should be able to establish
a reasonable Massiah/Henry claim.
Since the Massiah decision, the Supreme Court has focused
primarily on the involvement of the state in creating a
situation, whether through a "wired" co-defendant or a cellmate/
informant, which was likely to induce an accused to make
incriminating statements in the absence of his counsel. While
Massiah emphasized that an accused's incriminating statement
which was '"deliberately elicited" by the informant was
evidence of impermissible state involvement, both United States v.
Henry, 447 U.S. 264 (1980) and Maine v. Moulton, 474 U.S.
88 IL. Ed. 24 481 (1985), adopt a much broader focus. ‘In
Henry, the Court ignored the fact that the cellmate/informant
was specifically instructed by the government not to initiate
conversation with the accused regarding the offense in question;
instead, the Court found that the accused's incriminating
statements were inadmissible because, by merely placing an
informant in the accused's cell, the government had "intentionally
creat(ed) a situation likely to induce the defendant to
make incriminating statements without the assistance of counsel."
Nevertheless, the Court noted that the informant had not
been a mere "passive listener." (i.e. simply overhearing
the statements of the accused). The fact that the accused
was in confinement was noted by the Court as a subtle pressure
on the accused, and coupled with the deliberate placing of
an informant in his eell, an impermissible sixth amendment
violation was found. :
Similarly, in Maive v. Moulton, the mere fact that the state
arranged a meeting between the accused and a "wired" co-
defendant (who was instructed not to attempt to question
the accused) was found to violate the accused's sixth amendment
right to counsel. Even if the informant does not initiate
the conversation, the Court found that a "knowing exploitation
by the state of an opportunity to confront the accused without
counsel being present is as much a breach of the state's
obligation not to circumvent the right to the assistance of
counsel as is the intentional creation of such an opportunity.”
Pa
r
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In Kuhlmann v. Wilson, 106 8S. Ct. 2616 (1986), however,
Justice Powell, writing for the majority, shifts the focus
on the informant's efforts in initiating the conversation
with the accused. Ruling that the sixth amendment does not forbid
admission of an accused's statements to an informant who is
placed in close proximity but makes no effort to stimulate
conversation, Justice Powell argued that the accused must
show that the state/informant took some action beyond mere listening,
that was designed deliberately to elicit incriminating remarks.
Thus, it is not sufficient that the informant, through prior
arrangement with the state or voluntarily, reported the
accused's incriminating statements (cf. Maine v. Moulton, which
seems to suggest that the state's making of a request
to an informant to listen passively to the accused may
be enough to constitute a sixth amendment violation).
Most of the Elventh Circuit decisions involving Massiah/Henry
concern the applicability of the Massiah/Henry rule to
situations in which an accused makes statements evidencing
a separate offense which is obtained in the absence of
counsel retained for an original offense. See e.g.
United States v. Capo, 693 F.2d 1330 (11th Cir. 1983);
United States v. Lisenby, 716 7.24 1355 (11th Cir. 1933);
United States v. Badolato, 710 F.2d4 1509 (11th Cir. 1983);
United States v. Darwin, 757 F.2d 1193 (lith Cir. 1983).
These cases are not relevant to McCleskey's case.
The only Eleventh Circuit case which is of interest to
us 1s United States v. Hicks, 798 F.2d 446 (11th Cir. 1986).
This was the only Eleventh Circuit interpretation of Kuhlmann
that I found. In Hicks, a cellmate of the accused, who
was working as a government informant on another unrelated
case, volunteered information on her conversation with the
accused. The Eleventh Circuit found that admission of
these statements at trial did not violate the accused's
sixth amendment rights because the cellmate/informant
had not been deliberately planted by the government: "It
is clear in this case that the government did not deliberately
place West in detention with appellant. In fact, the
government agents were not even aware that West was in
custody until after her conversation with appellant."
Citing Kuhlmann in support of its decision, the Eleventh
Circuit argued that both the absence of government
~ involvement in arranging the informant to talk with
the accused, and the "merely listening" of Kuhlmann
were relevant criteria in finding a sixth amendment
violation under Massiah/Henry.
T
E
—
—
—
—
—
~
=
In order to prevail on a Massiah/Henry claim, therefore,
we must establish that the state did in fact contact Offie
Evans to act as its informant prior to--or at least during--
the time when Evans and McCleskey were engaged in conversation
in jail. If Evans was contacted by the deputy who overheard
the two men talking in their cells after the .conversation
took place (a position which Evans maintains in his trial
testimony), then the state's involvement would be insufficient
under Hicks.
In addition, Kuhlmann requires that Evans be more than a
passive listener. His recorded statement suggests that
this requirement can be easily satisfied, since Evans seems
to have lied deliberately to gain the confidence of both
McCleskey and Dupree (e.g. by stating that he was Ben Wright's
uncle). The questions which Evans posed to McCleskey and
Dupree can be characterized as having been designed to
"deliberately elicit" incriminating statements from them.
|
!
|
446
as final, and simultaneously limits his abili-
ty to manipulate the rules.
[4] The district court dismissed the
plaintiff’s complaint on July 26, 1984, al-
lowing twenty days for amendment. The
period allowed to amend ended on August
16, 1984. The plaintiff’s filing of a motion
for reconsideration did not affect the time
for filing of the appeal. See Fed.R.App.P.
4(a)d.
[5] Under the rule we announce in this
opinion, the plaintiff’s appeal would be un-
timely. The dismissal order would have
become final on August 16, 1984. An ap-
peal would have to have been filed within
thirty days thereafter. We do not apply
this new rule to this case. Consequently,
because the dismissal never attained the
status of a final order, plaintiff’s January
16, 1985, notice of appeal was timely, and
we find this case properly before us.
On the merits, we affirm the district
court.
AFFIRMED.
HATCHETT, Circuit Judge, concurring:
I agree with the standard articulated by
the majority, however, I write separately to
address a third situation which may con-
front a plaintiff upon the dismissal of his
complaint.
The third situation arises when the com-
plaint is dismissed without prejudice or
with leave to amend, but the district court
fails to indicate the time within which an
amendment may be made. I would hold
that in order to appeal a dismissal of this
type, the plaintiff must file notice of appeal
within the time allowed by rule 4(a), Feder-
al Rules of Appellate Procedure, measured
from the date of the district court’s order.
The plaintiff's appeal of the dismissal
would waive the right to later amend the
complaint. I would also hold that after the
time for appeal (usually thirty days) has
elapsed, if the plaintiff has not chosen to
treat the dismissal as a final order, no
appeal from the dismissal may be taken.
Further amendment of the complaint would
798 FEDERAL REPORTER, 2d SERIES
be untimely. Although a harsh rule, 3
would cure a difficult problem.
In the absence of such a holding, a dig. |
missal which does not stipulate a time per.
od within which the plaintiff may amend ]
the complaint gives the plaintiff the ability
to manipulate the courts and opposing par.
Where dismissal occurs without g
time period within which to amend, a plain.
tiff may amend at any time thought fit &
leaving defendants uncertain of whether |
they are in a lawsuit or not, and forcing &
defendants to at some point return to the =
district court for clarification of status, &
By inaction, a plaintiff, in this situation, &
may expand the time for amendment ag =
well as the time for appeal far beyond the
intent of the Federal Rules of Appellate &|
district courts
should avoid dismissals without clearly &
stating the time within which amendments |
ties.
Procedure. Obviously,
may be made.
© & KEY NUMBER SYSTEM
*
UNITED STATES of America,
Plaintiff-Appellee,
Vv.
Nancy HICKS, Defendant-Appellant.
No. 85-5291.
United States Court of Appeals,
Eleventh Circuit.
Sept. 8, 1986.
Defendant was convicted in the United
States District Court for the Southern Dis-
trict of Florida, No. 83-997, Eugene P.
Spellman, J., of cocaine-related offenses,
and she appealed. The Court of Appeals,
Hill, Circuit Judge, held that: (1) defend J
ant’s jailhouse statements were not elicited =
in violation of Sixth Amendment; (2) delay =
in prosecution did not deny defendant due |
process; and (3) district judge did not
»
vs
i
difficult problem. pei!
nce of such a holding, a dis
does not stipulate a time
ich the plaintiff may amend :
gives the plaintiff the ability
, the courts and opposing pap
dismissal occurs without |
ithin which to amend, a plain. :
nd at any time thought fit,
dants uncertain of whether
lawsuit or not, and forcing
L at some point return to the
for clarification of status,
a plaintiff, in this situation,
the time for amendment ag
Federal Rules of Appellate
Obviously, district courts
dismissals without clearly
e within which amendments,
p JOD
STATES of America,
aintiff-Appellee,
v
KS, Defendant-Appellant. |
No. 85-5291.
ates Court of Appeals,
leventh Circuit.
Sept. 3, 1986.
was convicted in the United
Court for the Southern Dis
la, No. 83-997, Eugene P.
of cocaine-related offenses,
led. The Court of Appeal,
dge, held that: a) detent
tatements were not € .
Sixth Amendment; (2) delay’
did not deny defendant
(3) district judge did
UNITED STATES v. HICKS 447
Cite as 798 F.2d 446 (11th Cir. 1986)
his discretion in admitting evidence
+2 extrinsic offenses.
Affirmed.
* gee also, D.C, 611 F.Supp. 497.
SN Criminal Law €517.2(1)
Defendant’s confession to casual ac
guaintance with whom she was fortuitously
rated after being arrested for co-
:orelated offenses was not elicited in
violation of defendant’s Sixth Amendment
right to counsel, though acquaintance was
. sovernment informant and defendant had
jnvoked right to counsel, where acquain-
~ tance reported defendant's incriminating
statement of her own volition. U.S.C.A.
~ Const.Amend. 6.
3 Constitutional Law ¢=265
Criminal Law 577.14
Sixth Amendment right to speedy trial
does not apply when Government, acting in
faith, voluntarily dismisses charges;
instead, delay between dismissal of earlier
charges and subsequent arrest or indict
ment must be scrutinized under due pro-
cess clause. U.S.C.A. Const.Amends. 6, 14.
3. Constitutional Law 265
Defendant charged with cocaine-relat-
od offenses was not prejudiced by delay
between original indictment which was dis-
missed and subsequent indictment on same
charges, and thus defendant was not de-
pied due process by delay, though defend-
ant claimed she was prejudiced because
Government intentionally used delay to se-
eure indictment against potential defense
witness, who became fugitive and refused
to come to country to testify for defendant.
US.C.A. Const.Amend. 14. :
4 Criminal Law &=371(1)
District Court did not abuse its discre-
~ tionin permitting drug enforcement admin-
istration agent to testify that various nota-
tions in defendant’s diary reflected drug
transactions involving small quantities of
cocaine, to show intent in prosecution of
eocaine-related offenses, despite passing of
. four months between extrinsic and charged
~ offenses, in light of similarity among of-
fenses and Government’s need for evidence
of intent. Fed.Rules Evid.Rule 404(b), 28
US.C.A.
Michael D. Gelety, Ft. Lauderdale, Fla.,
for defendant-appellant.
Leon Kellner, U.S. Atty., Robert Bondi,
David O. Leiwant, Asst. U.S. Atty., Miami,
Fla., for plaintiff-appellee. 3
Appeal from the United States District
Court for the Southern District of Florida.
Before HILL and ANDERSON, Circuit
Judges, and TUTTLE, Senior Circuit
Judge.
HILL, Circuit Judge:
Appellant appeals her conviction of co-
caine-related offenses on three grounds:
(1) that her jailhouse statements were elic-
ited in violation of the Sixth Amendment;
(2) denial of her right to a speedy trial; and
(8) improper admission of extrinsic offense
evidence.
BACTS
Appellant and her former co-defendant
were stopped by a customs patrol boat
several miles south of Miami Beach on
October 28, 1981. The customs officers
searched the ship and seized approximately
five pounds of cocaine along with appel-
lant’s diary. Upon arrest, appellant was
advised of her Miranda rights; she indi-
cated that she wanted an attorney and
wished to remain silent. After arrest and
processing, appellant was sent to the Dade
County Women’s Annex where she encoun-
tered Marolyn West Armstrong (“West”).
West was also in federal custody having
surrendered herself on a parole violation
matter stemming from prior unrelated fed-
eral convictions. The two women had been
introduced to each other in Bimini, earlier
in 1981, by a man named Tony Stewart.
They first spoke to each other in the hold-
ing cell and continued to converse after
transfer to the Women’s Annex where ap-
ta
"798 FEDERAL REPORTER, 2d SERIES
pellant made a “jailhouse confession” to
West.
Appellant’s attorney learned of the jail-
house confession shortly before the pretrial
hearings and filed a motion to suppress.
The magistrate ordered the government to
disclose the identity of the informant. The
government dismissed the indictment in
January, 1982, in lieu of revealing West's
identity, and reindicted appellant on the
same charges in December, 1983.
I
[1] Appellant claims that West's testi-
mony regarding her jailhouse statements
should have been excluded because they
were elicited in violation of her sixth
amendment right to counsel. A defend-
ant’s right to exclude confessions elicited
by government informants in the absence
of counsel, once the right to counsel has
attached and been asserted, is governed by
Massiah v. United States, 377 U.S. 201, 84
S.Ct. 1199, 12 L.Ed.2d 246 (1964), United
States v. Henry, 447 U.S. 264, 100 S.Ct.
2183, 65 L.Ed.2d 115 (1980), and Maine v.
Moulton, — U.S. —, 106 S.Ct. 477, 88
L.Ed.2d 481 (1985). In Massiah, the semi-
nal case in this area, the Supreme Court
held that the sixth amendment right to
counsel applies to “extrajudicial settings”
and “that the petitioner was denied the
basic protections of that guarantee when
there was used against him at his trial
evidence of his own incriminating words,
which federal agents had deliberately elicit-
ed from him after he had been indicted and
in the absence of his counsel.” Massiah,
877 U.S. at 206, 84 S.Ct. at 1203. In Hen-
ry, the Court found that when the govern-
ment instructs a fellow inmate to listen for
damaging statements made by an accused
in custody, it violates the accused's sixth
amendment right to counsel by intentional
ly creating a situation likely to induce the
accused to make incriminating statements
without the assistance of counsel. Henry,
447 U.S. at 274, 100 S.Ct. at 2188-89.
The Supreme Court recently addressed
this issue in Maine v. Moulton, — U.S.
—, 106 S.Ct. 477, 488, 88 L.Ed.2d 481
(1985), where the Court affirmed the sup.
pression of taped conversations between
the defendant and his former codefendant,
who was cooperating with the police. Af.
ter summarizing the principal right to
counsel decisions, particularly Massiah and
Henry, the Court explained the nature of
the right recognized in those cases:
The Sixth Amendment guarantees the ae-
cused, at least after the initiation of for
mal charges, the right to rely on counse]
as a “medium” between him and the
State.... [This guarantee includes the
State’s affirmative obligation not to act
in a manner that circumvents the protec-
tions accorded the accused by invoking
this right. The determination whether
particular action by state agents violates
the accused’s right to the assistance of
counsel must be made in light of this
obligation. Thus, the Sixth Amendment
is not violated whenever—by luck or hap-
penstance—the State obtains incrimina-
ting statements from the accused after
the right to counsel has attached. See
Henry, 447 US, at 276, 100 S.Ct., at
2189 (POWELL, J., concurring). How-
ever, knowing exploitation by the State
of an opportunity to confront the accused
without counsel being present is as much
a breach of the State's obligation not to
circumver® the right to the assistance of
counsel as is the intentional creation of
such an opportunity. Accordingly, the
Sixth Amendment is violated when the
State obtains incriminating statements
by knowingly circumventing the ac-
cused’s right to have counsel present in a
confrontation between the accused and a
state agent.
Moulton, 106 S.Ct. at 487 (footnote omit-
ted).
_This case does not involve either inten-
tional creation or knowing exploitation of -
an opportunity to confront appellant with-
“out her counsel. Instead, the government
fortuitously received appellant's state
ments. The following testimony regarding
hearings or at trial: West had been work-
ing as a government informant beginning
RIES
the Court affirmed the sup.
pped conversations between
and his former codefendant,
erating with the police. Af.
ing the principal right to
ns, particularly Massiah and
hurt explained the nature of
nized in those cases:
endment guarantees the ag.
st after the initiation of for
, the right to rely on counse]
um” between him and the
his guarantee includes the
ative obligation not to act
that circumvents the protec
ed the accused by invoking
The determination whether
tion by state agents violates
's right to the assistance of
st be made in light of this
Thus, the Sixth Amendment
Ld whenever—by luck or hap-
e State obtains incrimina-
onts from the accused after
counsel has attached. See
U.S, at 276, 100 S.Ct. at
LL, J., concurring). hi
g exploitation by the State
unity to confront the accused
sel being present is as much
the State’s obligation not to
e right to the assistance of
s the intentional creation of
bortunity. Accordingly, the
dment is violated when the
s incriminating statements
bly circumventing the ae
to have counsel present in®
n between the accused and 8
S.Ct. at 487 (footnote omit:
ses not involve either inten
| or knowing exploitation of
, to confront appellant with :
o]. Instead, the gove
oceived appellant's state ;
bllowing testimony re
was given at various pretrial ;
trial: West had been works
rnment informant begi
UNITED STATES v. HICKS = . 449
Cite as 798 F.2d 446 (11th Cir. 1986)
1979 or early 1980. At the time she
nt into federal custody, West was work-
Py on an investigation involving, inter
: her employer Aviation Activities, Inc.,
~ce Morales and Tony Stewart. Never-
0 less, West was not deliberately planted
‘tn custody to obtain information about any
spson DOr Was she instructed to gather
formation while in custody. Moreover,
the , government did not knowingly exploit
bor presence in jail, West did not contact |
t Francar, with whom she was cooper- |
ne on the Morales/Aviation Activities |
fnvestigation, until several days after her|
conversation with appellant, and agent De- |
lia, who was investigating appellant’s|
ease, did not learn of appellant's statement]
gntil some time later.
| Appellant claims that West was, for al
g in United States v. Sampol, 636 F.2d
g21 (D.C.Cir.1980). Although West vol-
unteered information on cases unrelated to
per role in the Morales/Aviation Activities
jnvestigation, Sampol presented a much
different situation than the present case.
In Sampol, the informant’s sentence—pris-
_ on or probation—depended solely upon the
~ quality and quantity of information he
gave to the prosecutor. With such compel-
ling motivation, he was only too eager to be
“sccepted by the government as an infor-
mant at large whose reports about any
eriminal activity would be gratefully re-
ceived” and “ ‘go all out’ and ‘forge ahead
on [his] own’ in pursuit of the reward post-
ed by the judge with the approval of the
government.” Id. at 638. In contrast, the
government did not ask West to gather
information while in custody nor did any
government agent pay or promise her any-
thing for providing information. West tes-
tified that she was motivated by strong
feelings about narcotics due to some family
members’ substance abuse problems. This
self-initiated “crusade” against drug traf-
ficking did not transform West into an
informant at large. See, eg, United
States v. Van Scoy, 654 F.2d 257, 260-61
In her motion to dismiss, appellant included a
(3d Cir.), cert. denied, 454 U.S. 1126, 102
S.Ct. 977, 71 L.Ed.2d 114 (1981).
The most recent Supreme Court decision
in this line, IKukImann v. Wilson, — U.S.
——, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986),
in which the Supreme Court found no Mas-
siah violation because the informant was
“merely listening,” differs from this case.
| In Kuhlmann, the government deliberate-
ly placed the informant in a cell with the
accused to listen for the desired informa-
tion. It is clear in this case that the
government did not deliberately place West
‘in detention with appellant. In fact, the
government agents were not even aware
that West was in custody until after her
conversation with appellant. Nevertheless,
Kuhlmann supports our holding in this
case. The Court clearly stated that:
the primary concern of the Massiah line
of decisions is secret interrogation by
investigatory techniques that are the
equivalent of direct police interrogation.
[A] defendant does not make out a viola-
tion of [the right to counsel] simply by
showing that an informant, either
through prior arrangement or voluntar-
ily, reported his incriminating statements
to the police. o Rather, the defendant
must demonstrate that the police and
their informant took some action, beyond
merely listening, that was designed delib-
erately to elicit incriminating remarks.
Id., 106 S.Ct. at 2630.
By “luck or happenstance,” appellant
was incarcerated with a casual acquain-
tance who, of her own volition, reported
appellant's incriminating statement to the
government. The admission of this state-
ment did not violate appellant's sixth
amendment rights.
IL.
[2] Next, appellant argues that the trial
court should have dismissed her second
indictment for constitutional speedy trial
and due process violations because, al-
though she was arrested on October 28,
1981, she was not tried until December 12,
1984.! Appellant was not, however, under
claim under the Speedy Trial Act, 18 U.S.C.
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