Rice v Arnold Petition for Writ Certiorari
Public Court Documents
November 29, 1951

13 pages
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Case Files, McCleskey Legal Records. Petitioner's First Interrogatories and Request for Production, 1988. 38040742-63a7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c0665aa3-3662-41b8-8189-78284923f1ef/petitioners-first-interrogatories-and-request-for-production. Accessed August 19, 2025.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, No. 1:87-¢cv-1517~J0F Petitioner, RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. N r S a ? a N a t a t N a ” N a i ? it ? n r “ n t S a a r PETITIONER'S FIRST INTERROGATORIES TO RESPONDENT Petitioner, WARREN McCLESKEY, by his undersigned counsel, propounds the following interrogatories to Respondent, pursuant to Rule 33 of the Federal Rules of Civil Procedure, Rule 6(a) and (b) of the Rules Governing Section 2254 Cases, and the Order of the District Court entered June 17, 1988. Respondent 1s re- quired to submit written responses to these interrogatories at the offices Of Robert H. Stroup, 141 Walton Street, N.W., Atlanta, Georgia 30303, on or before July 13, 1988. INTERROGATORY NO. 1 Does the Respondent Ralph Kemp contend that he, his attorneys, or anyone else at his direction or under his control actively sought to locate Offie Evans between April 1, 1987 and December 23, 1987 for use as a witness in connection with Petitioner's successive federal habeas corpus proceedings? If the answer is affirmative, please describe in detail every action taken, by every individual or entity, on each separate occasion, to locate Offie Evans between April 1, 1987 and December 23, 1987, the outcome of each such effort, and any follow-up actions taken as a result. INTERROGATORY NO. 2 Does Respondent contend that he ever notified the District Court, and/or Petitioner McCleskey or his counsel, of his desire or intention to call Offie Evans as a witness during the July or August, 1987 evidentiary hearings in this action? If the answer 1s affirmative, please describe in detail each such incident of notification. INTERROGATORY NO. 3 Does Respondent contend that he ever made any request to the District Court for an additional opportunity to locate Offie Evans between July 1, 1987 and December 23, 1987? If the answer 1s affirmative, please describe in detail such request. INTERROGATORY NO. 4 Does Respondent contend that he ever sought to determine from Petitioner McCleskey, his counsel, or any employee or agent under their control, (1) the precise steps they took between April 1, 1987 and December 23, 1987 to locate Offie Evans, (11) the leads they had pursued, (iii) the persons they had interviewed, or (iv) the places they had been, in order to locate Offie Evans? If the answer is affirmative, please describe 1n detail such meeting or conversation with Petitioner, his counsel, or any such employees or agents thereof, including the date, time, and place of any such meeting or conversation, and all information obtained as a result of the meeting or conversation. INTERROGATORY NO. 5 Does Respondent contend that he exercised "due diligence" 1n seeking to introduce the testimony of Offie Evans into the record of this action between June 1, 1987 and December 23, 1987? 1f the answer is affirmative, please describe in detail every action taken, by every individual or entity, on each separate occasion, that respondent believes contributes to his claim of "due diligence." INTERROGATORY NO. 6 Identify by time, place, persons present, contents, and all other relevant identifying features, every communication, whether oral or in writing, between Offie Evans and (1) Respondent, his counsel, or any employee or agent acting at his direction or under his control, and (ii) any other person known to Respondent, his counsel, or any employee or agent thereof, between April 1, 1987 and July 12, 1988. Please append to this answer —-- pursuant both to Rule 33 and to the Rule 34 request submitted contemporaneously to respondent by petitioner -- any document of any kind whatsoever, including any notes, diaries or diary entries, letters, memoranda, transcripts, affidavits, stenographic notes, audio or video recordings, or any other record whatsoever, that refers, reflects or relates to any such meeting, or to the contents thereof. INTERROGATORY NO. 7 Does respondent contend that Offie Evans possesses any testimony or other evidence that is "material" to this action within the meaning of Rule 60(b) of the Federal Rules of Civil Procedure and the cases interpreting that Rule? If the answer is affirmative, please state every material fact that the testimony or evidence of Offie Evans contribute, and describe why 1t 1s material. INTERROGATORY NO. 8 Does Respondent contend that Offie Evans possesses any testimony or other evidence that is "newly discovered" within the meaning of Rule 60(b) of the Federal Rules of Civil Procedure and cases interpreting that Rule? If the answer is affirmative, please state every fact that is newly discovered and state separately the date upon which it was newly discovered by (1) Respondent, (1i) his agents, (iii) attorneys, and (iv) other law McCleskey. June 28, enforcement personnel invloved with the prosecution of Warren Respectfully submitted, Fenty. X ROBERT H. STROUP v 141 walton Street, N.W. Atlanta, Georgia 30303 (404) 522-8500 Georgia Bar No. 689175 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 (212) 219-1900 ATTORNEYS FOR PETITIONER | IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCleskey, Petitioner, RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. N e ? N e ? ee ’ N e m e ee ” et ” n e ’ S e ” ee ” a ” at ” S u PETITIONER'S FIRST REQUEST FOR PRODUCTION Petitioner, WARREN McCLESKEY, by his undersigned counsel, requests Respondent to produce each of the documents listed in the annexed Schedule A, for inspection .and copying, at the offices of Robert H. Stroup, 141 Walton Street, Atlanta, Georgia 30303, on Wednesday, July 13, 1988, at: 10:00 a.m. This request 1s made pursuant to Rule 34 of the Federal Rules of Civil Procedure, Rule 6(a) and (b) of the Rules Governing Section 2254 Cases, and the Order of the District Court entered on June 17, 1988. Dated: June 29, 1988. Respectfully submitted, ROBERT H. STROUP 141 Walton Street, N.W. Atlanta, Georgia 30303 (404) 522-8500 Georgia Bar No. 689175 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 {212) 219.1900 ATTORNEYS FOR PETITIONER SCHEDULE A DOCUMENTS TO BE PRODUCED As used herein, "document[s]" shall means any communication or writing of any kind whatsoever, including without limitation correspondence, memoranda, notes, diaries or diary entries, letters, minutes, official or unofficial reports, forms, worksheets, pamphlets, books, articles, computer disks or tapes, films, video tapes, transcripts, stenographic records, electronically or mechanically recorded or reproduced communications, and all drafts and copies thereof. 1. All documents or other communications between the Georgia Attorney General's Office and: (i) the Fulton County District Attorney's Office; {ii) the Fulton County Sheriff's Department; (iii) the Atlanta Bureau of Police Services; (iv) the City of Atlanta; (v) the Fulton County Probation Department; (vi) the State Department of Pardons and Paroles; (vii) the State Department of Corrections; (viii) any federal agency, including the Office of the United States Attorney, the Federal Bureau of Investigation, the United States Bureau of Prisons, the Secret Service; or any employee or agent thereof, or any division or subdivision of any of these entities, that refer, reflect, or relate to any efforts by respondent, his attorneys, or any of the entities set forth above, to locate, contact, or learn the whereabouts of Offie Gene Evans between April 1, 1987 and July 12, 1988. 2. All documents from whatever source which refer, reflect, or relate to the legal status, or the whereabouts, of Offie Gene Evans between April 1, 1987 and July 12, 1988. 3. All documents which refer, reflect, or relate to any effort by respondent or his attorneys to inform either the United States District Court, or petitioner Warren McCleskey or his attorneys, of respondent's desire, or his intention: (i) to call Offie Gene Evans as a witness either at the initial federal hearing on July 8-9, 1987 in this action, or at the rebuttal hearing on August 10, 1987; or (ii) to hold open and/or supplement the evidentiary record with testimony or affidavits from Offie Gene Evans if he were located prior to December 23, 1987. 4. All documents which refer, reflect, or relate to any meetings, conversations, or other communications of any kind whatsoever between Offie Gene Evans, or any of his family, friends, or acquaintances and any of the entities mentioned in Item No. 1 above, including any employees or agents thereof, between April 1, 1987 and July 12, 1988. 5. All documents which refer, reflect, or relate to any oral or written statement made by Offie Gene Evans to any of the entities mentioned in Item No. 1 above, including any employees or agents thereof, between April 1, 1987 and July 12, 1988. 5! LAW OFFICES STROUP & COLEMAN 141 WALTON STREET, N.W. ROBERT H. STROUP ELIZABETH J. COLEMAN ATLANTA, GEORGIA 30303 June 28, 1988 Honorable Luther D. Thomas, Clerk United States District Court 2211 United States Courthouse 75 Spring Street, S.. W. Atlanta, Georgia 30335 Re: Warren McCleskey v. Ralph M. Kemp, No. 1:87-¢cv-1517~-30F Dear Mr. Thomas: Enclosed for filing please find an original and one copy of Petitioner's "Certificate of Service Pursuant to Rule 225.3" in the above-captioned civil action. Thank you for your courtesy. Very truly yours, Robert H. Stroup RHS/1 Encls. cc: Mary Beth Westmoreland, Esq. TELEPHONE (404) 522-8500 (404) 522-3000 eS AI I RR BER Fi By fe GRR REE EAS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, Petitioner, NO. 1:87~-cv=-1517-JOF kg RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. N r N e a ” a a a N a a e l a N a a t N a S u ” CERTIFICATE OF SERVICE PURSUANT TO RULE 225.3 Comes now Petitioner, WARREN McCLESKEY, pursuant to Local Rule 225.3 and files this Certificate that he has, on this date, served upon Respondent Petitioner's First Interrogatories to Respondent, by hand delivering a copy of same to MARY BETH WESTMORELAND, ESQ. Assistant Attorney General 132 State Judicial Building 40 Capitol Square, S. W. Atlanta, Georgia 30334 This 28th day of June, 1988. [ASST Breociy ROBERT H. STROUP "~ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN McCLESKEY, Petitioner, NO. 1:87-cv-1517-J0OF RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center, Respondent. N r N a ? a ” a a a ’ a ’ a ” a a ’ ua ” a ” n t ’ “ e t CERTIFICATE OF SERVICE PURSUANT TO RULE 225.3 Comes now Petitioner, WARREN McCLESKEY, pursuant to Local Rule 225.3 and files this Certificate that he has, on this date, served upon Respondent Petitioner's First Request for Production to Respondent, by hand delivering a copy of same to MARY BETH WESTMORELAND, ESQ. Assistant Attorney General 132 state Judicial Building 40 Capitol Square, 5. W. Atlanta, Georgia 30334 This 28th day of June, 1988. Tebent 2 Eman ROBERT H. STROUP! UNITED STATES: DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN MCCLESKEY, CIVIL ACTION NO. Petitioner, 1:87-cv=-1517-JOF Vv. HABEAS CORPUS RALPH M. KEMP, WARDEN, 28 U,s.C...§ 2254 We A Ne he Ne Ne He N N Respondent. RESPONDENT'S ANSWER TO FIRST INTERROGATORIES OF PETITIONER Comes now Ralph Kemp, Warden, by undersigned counsel, and responds to the interrogatories submitted by Petitioner in the above-styled case. As the actual Respondent in this matter, who 1s no longer even the custodian of the Petitioner, had no input, ‘either direct or indirect, into the litigation of the habeas corpus proceeding in this case which is the sole basis for the interrogatories, the responses are made by counsel. INTERROGATORY NO. 1. Neither Ralph Kemp, nor counsel for Ralph Kemp nor anyone at his direction or under his control actively sought to locate Offie Evans between April 1, 1987, and December 23, 1987, due to the reasonable belief that any such action would be futile as no independent knowledge was had by either counsel, or the Respondent, nor any persons that counsel had contact with as to the whereabouts of Mr. Evans and because utilizing all the resources provided by the federal district court, including the Federal Defender's Office and by utilizing private investigators, counsel for the Petitioner had been unable to locate Mr. Evans. INTERROGATORY NO. 2 No. INTERROGATORY NO. 3 NO such request was made due to the reasonable belief that any such attempt would be futile. INTERROGATORY NO. 4. No such attempt was made based upon counsel's assumption that the representations made by counsel for the Petitioner to the court were an accurate reflection of those efforts being made on behalf of the Petitioner and the indication given by counsel for the Petitioner that all efforts were being made to locate Offie Evans. INTERROGATORY NO. 5. Respondent asserts that due diligence has been shown by the record in this case even though Respondent did not independently make an investigation of Mr. Evans' whereabout due to the fact that the court provided all possible resources to the Petitioner in an attempt to locate Mr. Evans including the Federal Defender's Office and the Petitioner made specific factual assertions to the court that an investigator had been sent and waited at Mr. Evans' home and that all attempts to locate Mr. Evans had been unsuccessful. Relying upon these factual statements by counsel for the Petitioner, Respondent concluded that any such further attempts would be equally futile and actually knew of no further attempts that could be made. INTERROGATORY NO. 6. Respondent nor his counsel nor any employee or agent acting at his direction or under his control has had any contact with Offie Evans: at any time, between April 1, 1987, and July 12, 1988. The only further contact with Offie Evans with which present counsel is aware 1s one occasion after the court was advised of Mr. Evans apprehension at which time Mr. Evans personally telephoned Russell Parker. Other than that one occasion, counsel does not know of any such contact. Counsel does not have any notes, diaries, diary entries, letters, memoranda, transcripts, affidavits, etc. relating to any such meeting, although Mr. Parker may have such in his possession. As he is not being represented by present counsel and is not a party to this action, Respondent does not deem it appropriate to make any further inquiry as such could also be classified as attorney work product, although counsel has been advised that no substantive conversation was had. INTERROGATORY NO. 7. Yes. Based upon Mr. Evans' prior testimony in the state habeas corpus proceeding in the case of Bernard Depree and the inferences that can be drawn from Mr. Evans' own testimony and his statement, Respondent thinks that it is reasonable to conclude that Mr. Evans may very well testify that no one directed him to obtain any statements, that he was not moved in the jail and he was not acting as an agent for the State. Respondent has not talked with Offie Evans in order to avoid any question of impropriety or tainting of his testimony to ascertain precisely what his testimony might be. This is the whole basis for the deposition to be taken of Mr. Evans. INTERROGATORY NO. 8. Respondent does not contend that the information that could be supplied by Offie Evans is "newly discovered," but contends that Mr. Evans himself is a witness who was previously unavailable and in that sense his testimony would be newly discovered. Respondent had reason to believe what Mr. Evans' testimony might be, but he was simply not available to present that evidence previously. His whereabouts were not located until the date previously established when it was ascertained that Mr. Evans was back in Fulton County Jail. This response is being made based on the information presently available to counsel and is subject to revision should additional information be obtained. WHEREFORE, Respondent submits these responses to Petitioner's first interrogatories. Respectfully submitted, MICHAEL J. BOWERS 071650 Attorney General MARION O. GORDON 302300 First Assistant Attorney General Le Litas. Aor gl ft yl putt WILLIAM B. HILL, JR, 7/7 354725 Senior Assistant Attorney General gs LN Ll inl rt MARY /BETH WESTMORELAND 750150 Assistant Attorney General MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square, S. W. Atlanta, Georgia 30334 (404) 656-3349 CERTIFICATE OF SERVICE 1 do hereby certify that I have this day served the within and foregoing response, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: Robert H, Stroup : 141 Walton Street, N.W: fad Atlanta, Georgia 30303 This [J// - day of July, 1988, MARY /BETH WESTMORELAND / Agsilstant Attorney General UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WARREN MCCLESKEY, CIVIL ACTION NO. Petitioner, 1:87-cv-1517-JOF Va HABEAS CORPUS RALPH M. KEMP, WARDEN, 28-U.8.C. § 2254 * ¥ Hk dk % * * F* OF Respondent. RESPONSE TO PETITIONER'S FIRST REQUEST FOR PRODUCTION L. No documentation to this effect is in existence. 2. No such documentation to this effect is in existence to the knowledge of present Respondent and is not within the possession of the Respondent or counsel for the Respondent. Respondent has no way to determine if any documents are available from "whatever source." 3 No such documentation exists. 4, To the knowledge of Respondent and counsel for the Respondent no such documentation exists. 5. To the knowledge of counsel for the Respondent and the Respondent, no such documentation exists. WHEREFORE, Respondent submits that as no documentation set forth in the request for production is available, none will be produced at the date in question. This completes the response to Petitioner's request for production of documents. Respectfully submitted, MICHAEL J. BOWERS 071650 Attorney General MARION O. GORDON 302300 First Assistant Attorney General (ty Lr A HAY Cys vS WILLIAY B. 3, 35. rr IsIs Senior Assistant Attorney General 09.0/Y, aR WESTMORELAND/ 750150 Assistant Attorney General MARY BETH WESTMORELAND 132 State Judicial Building 40 Capitol Square, S. W. Atlanta, Georgia 30334 (404) 656-3349 CERTIFICATE OF SERVICE 1.40 hereby certify that 1 have this day served the within and foregoing response, prior to filing the same, by depositing a copy thereof, postage prepaid, in the United States Mail, properly addressed upon: Robert H. Stroup Sa 141 Walton Street, N.W. ford Atlanta, Georgia 30303 John Charles Boger 99 Hudson Street New York, New York 10013 This _ day of July, 1988, DY rt itt dl es WESTMORELAND 7 tant Attorney General Ass