McCleskey v. Zant – Order

    files: McCles) y (0311 12) Leg al:N.]. & Ne. CEl- 2Z4934A ~ Orde Sep. 30 1282. 

     



  
P—034—C 

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

VS. : CIVIL ACTION 

NO. C81-2434A 
WALTER D. ZANT, Warden, 

Georgia Diagnostic and 
Classification Center, 

Respondent. 

ORDER 

This action is before the court on petitioner's motion 

to alter or amend or to reconsider the court's order of 

June 9, 1982 denying petitioner's motion for an evidentiary 

hearing with respect to a number of the issues in this 

action and dismissing the petition without prejudice for 

failure to exhaust with respect to one of the ineffective 

: So vm ig rE i eV oh im [ 4 2.8 FP Nddmamnr ner YY ~ ~~ hb] i od dn a8s81sSLance or counsel, claims, 10 ALlirney GEricxral or 
  

  

State of Georgia did not file a brief in response to petition- 
  

  
  

er's motion to alter or amend. The court will address the   

    
grounds presented by his motion seriatim. 

  

I. Petitioner asserts that the court's dismissal of 

this petition on the ground that his claim of ineffective 

assistance of counsel based upon trial counsel's failure to 

examine the judge's sentencing report was not exhausted was 

based on a limited state habeas corpus record. The peti- 

tioner shows the court that petitioner's post-trial brief 

submitted to the Superior Court of Butts County in support 

of his state habeas corpus action presented the factual 

grounds for this issue in the context of his claim of in- 

effective assistance of counsel. Petitioner seeks to have 

this brief made a part of the record in this court pursuant 

to Rule 7(b) of the Rules Governing Section 2254 Cases in 

the District Courts. The brief is ADMITTED. It appearing 

  

 



  
P—034—C 

that this claim was presented to the state habeas court and 

that the state habeas court also had before it a copy of the 

trial judge's sentencing report, the court finds that peti- 

tioner has exhausted this claim. 

A review of the order of the state habeas court shows 

that petitioner's claim of ineffective assistance of counsel 

based on failure to review the trial judge's sentencing 

report was not expressly resolved by the state habeas court. 

Nor is the court able to find that the state court impliedly 

found the material facts A Ho thisiclaim, Therefore, an 

evidentiary hearing on this issue is warranted. § 2254(d)(1l): 

Townsend vs. Sain, 372 U.S. 293,313 (1962). Accordingly,   

    
  

petitioner's motion to alter or amend is GRANTED as to this 

issue. 

The court notes that in its order of June 9 it charac- 

terized petitioner's contention (k) that counsel failed to 

respond to the trial court's request that he review the 

court's sentencing report as a failure to review {he pre- 

sentence report of the court. Properly characterized as a 

failure to review the sentencing report of the trial judge, 

this contention could still arise to a constitutional claim. 

II. Petitioner seeks reconsideration of the court's 

order denying him an evidentiary hearing as to his claim of 

ineffective assistance of counsel for counsel's failure to 

develop testimony regarding petitioner's life history which 

would have been considered by the jury in mitigation of 

guilt during the sentencing phase. Petitioner has submitted 

two affidavits of persons who state that they would have 

either supplied the names of persons whom trial counsel 

could contact regarding petitioner's background or testified 

on petitioner's behalf if requested to do so. 

  

  

 



  
°-034—C     

From the face of these affidavits it does not appear 

that these affidavits are more than merely cumulative or why 

they could not have been obtained for presentation to the 

state habeas court in the exercise of due diligence. The 

affidavits of Reverend Johnson and of Gwendolyn Sharp are 

the affidavits of persons known to petitioner whose names 

could have been obtained in the exercise of due diligence. 

Accordingly, petitioner's motion for reconsideration of the 

court's denial of an evidentiary hearing as to this issue is 

DENIED and petitioner's alternative request that these affi- 

davits be made part of the record pursuant to Rule 7(b) is 

DENIED. 

Petitioner has also presented "newly found" evidence 

relating to the Offie Evans claim. From the face of the 

proffer presented, the court cannot determine that this 

evidence could not have been discovered earlier. Accord- 

ingly, petitioner's alternative motion to have the Certi- 

ficate of Record, the Incident Report, Notice of Discipline 

Committee Hearing, Standard Escape Report, Affidavit from 

Offie Gene Evans, and Institution Discipline Committee Report 

dated September 6, 1978 made a part of the record pursuant 

to Rule 7(b) is GRANTED on the condition that counsel show, 

within fifteen (15) days of the filing date of this order, 

why this evidence could not have been available for the 

state habeas judge's review. 

III. Petitioner has listed the material facts which he 

understands to have been expressly or impliedly found by the 

state habeas court and in effect asks that the court adopt 

these statements of fact. This request is based on the 

court's finding in the order of June 9 that as to peti- 

tioner's ineffective assistance of counsel claim, most of 

the findings of fact made by the state habeas court were 

express but that for those issues where express findings 

were not made, the state court impliedly found the material 

-3- 

Nb A Fn ALN RAS 

  

 



  
P—034-C     
  

  

facts. 

This petition is not at this time being considered on 

the merits, and the court declines to make any findings of 

fact at this time or to reconsider its order in the manner 

requested by the petitioner. Both counsel and the court 

have the state record available for the purpose of analyzing 

the findings of the state court. The express findings of 

the state court speak for themselves, and as to the implied 

findings of the state court, this court will await deter- 

mination on the merits of this petition. Petitioner's 

motion for reconsideration on this ground is DENIED. 

IV. Petitioner asks that the court reconsider its 

holding that no evidentiary hearing is needed on his claim 

that the death penalty is imposed in a racially discrim- 

inatory fashion. Petitioner has presented new evidence in 

the form of an affidavit regarding recently completed stud- 

ies on the imposition of the death penalty. 

In his petition McCleskey has asserted that the dcath 

penalty is imposed in violation of the Eighth Amendment and 

of the due process and equal protection clauses of the Four- 

teenth Amendment. Although it appears to the court that 

petitioner's Eighth Amendment argument has been rejected by 

this circuit in Spinkellink vs. Wainwright, 578 F.2d 582, 
    

612-14 (5th Cir. 1978), petitioner's Fourteenth Amendment 

claim may be appropriate for consideration in the context of 

statistical evidence which the petitioner proposes to pre- 

sent. However, petitioner's contention is not sufficiently 

articulated for the court to be.certain of its premise.’ It 

appears that petitioner's premise is that any defendant, 

irrespective of race, has standing to challenge the imposi- 

tion of the death penalty on Fourteenth Amendment grounds  



  
P—034—C     

and may challenge such a sentence if it is imposed because 

of the consideration of an irrelevant or perhaps imper- 

missible detail of the crime (race of the victim). If this 

is petitioner's contention, it is not clear whether he is 

asserting that the violation of equal protection alleged may 

be shown by pattern and practice evidence or whether it must 

be proven on a case-by-case basis. 

It appears that the study presented contains new evi- 

dence sufficient to require a hearing before this court. 

Accordingly, it is ORDERED that the parties appear for a 

hearing on this issue on Friday, November 19, 1982, at 9:30 

a.m. 

In sum, petitioner's motion to alter or amend judgment 

is GRANTED IN PART and DENIED IN PART. The parties are 

ORDERED to appear before this court for an evidentiary hear- 

ing on the ineffective assistance of counsel issue and on 

petitioner's new evidence regarding discriminatory imposi- 

"3 
tion of the death penalty on Eas 19, 1982, at 9:30 a.m. 

7 

IT IS SO ORDERED this “day of September, 1982. 

Pails 

     
UNITED STATES DISTRICT JUDGE 

/ 
Wig