Application for 90-Day Stay of Execution

    Auited States District Jour 
NORTHERN DISTRICT OF GEORGIA 

2211 UNITED STATES COURTHOUSE 

78 SPRING STREET, S.W. 

  

LUTHER D. THOMAS ATLANTA, GEORGIA 30335 

CLERK February 6, 1989 

Hr. Miguel J. Cortez, Jr., Clerk D.C. Ho. 1:87-CV-1517-JOF 
United States Court of Appeals, Eleventh Circuit 
50 Spring Street, S.W. U.5.0.A. No. 

  

Atlanta, GA 30303-3147 

IN RE: WARREN MCCLESKEY VS RALPH M. KEMP, WARDEN 
Ra PE SR Bl A EE TE RR Te IR Sl ae Te LL a TAI I ME WT rN ey 

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

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

  

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

Certified record on appeal consisting of: 

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

Volume(s) of exhibits/depositions. Other: 
  

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

Copy of CJA form appointing counsel. 

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

  

XX The appellate docket fee has been paid XX Yes No; Date(s) paid 1/30/89 
  

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

xX The Judge or Magistrate appealed from is J. Owen Forrester 
  

XX The Court Reporter(s) are Sydney Huseby 
  

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

This is a DEATII PENALTY appeal. 
  

Sincerely, 

LUTHER D. THOMAS, Clerk 

cc 

I] 

Ye NGA Inasd 
  

2) Deputy Cerk 

 



1:87~cv-01517 

  

James M. Nabrit III, Esq. 

NAACP Legal Defense Fund 
99 Hudson Street 

16th Floor 

New York, NY 10013 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 
& 89-8085 

  

WARREN MCCLESKEY, 
Petitioner /Appellee, 
Cross-Appellant, 

V. 

RALPH KEMP, WARDEN 

Respondent /Appellant, 
Cross—-Appellee 

  

MOTION TO CONSOLIDATE CASES ON APPEAL 

  

MICHAEL J. BOWERS 

Attorney General 

H. PERRY MICHAEL 

EXecutive Assistant 
‘all ol a} {J Aan - 4 

LLC LCUil ii vy Jenaera.; 

WILLIAM B. HILL, JR. 

Deputy 
Attorney General 

SUSAN V. BOLEYN 

Please serve: Senior Assistant 

Attorney General 
MARY BETH WESTMORELAND 

132 State Judicial Bldg. MARY BETH WESTMORELAND 

40 Capitol Square, S.W. Senior Assistant 
Atlanta, Georgia 30334 Attorney General 
(404) 656-3349 

  

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 
& 89-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross-Appellant, 

Vv. 

RALPH KEMP, WARDEN 

Respondent /Appellant, 
Cross—-Appellee 

  

MOTION TO CONSOLIDATE CASES ON APPEAL 

  

COMES NOW Ralph Kemp, Warden, Appellant in the 

above-styled actions, through counsel, and moves this 

Court to consolidate the two above-styled cases for 

consideration by this Court on appeal. The initial appeal 

filed by the Appellant/Warden in this action was from the 

granting of habeas corpus relief by the United States 

District Court. The second appeal filed was pursuant to 

the denial of the motion for relief from judgment under 

Rule 60(b) by the United States District Court involving 

the same federal habeas corpus action. This Court has ov ii 

previously stayed the briefing schedule pending resolution 
2 

  

 



  

of the Rule 60(b) motion. In order to simplify the record 

before this Court, allow the simultaneous briefing of all 

issues by both parties and 1n order to expedite the appeal 

to process, the Appellant/Warden would request that these 

two appeals be consolidated for purposes of review 1n this 

court, 

Additionally, the Appellant/Warden would request that 

this court supplement the record in case Nos. 88-8085 or 

89-8085 with all additional documents and pleadings filed 

in the district court since the time the original record 

was transmitted to this court. 

 



  

CONCLUSION 
  

Wherefore, Appellant prays that the instant motion to 

consolidate be granted. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 

Attorney General 

H. PERRY MICHAEL 504000 

Executive Assistant 

Attorney General 

INR. Sh 
WILLIAM B. HILL, JR) Vile J354725 
Deputy Attorney Gerfokd1 

  

SUSAN V. a SYN / TEE 

Senior Assistant Attorney General 

  

  

 



  

eed Aes [hes hype ly uo Z N 
MARY/BETH WESTMORELAND 01 
Senildr Assistant Attorney dene ral 

  

wl
 

Please serve: 

MARY BETH WESTMORELAND 

132 State Judicial Building 

40 Capitol Square 
Atlanta, Georgia 30334 

(404) 656-3349 

   



  

  A 

2 

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

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

by depositing a copy thereof, postage prepaid, 1n the 

United States Mail, properly addressed upon: 

Robert H., Stroup 

141 Walton Street 

Atlanta, GA 30303 

John Charles Boger 

99 Hudson Street 

l6th Floor ; 

New York, New York 10013. 

This /foy¥Aday of February, 1989. 

     



Tnited States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW, 

Atlanta, Georgia 30303 fab 
Miguel J. Cortez : February 23, 1989 In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

Nos. 88-8085 & 89-8085 - MCCLESKEY V., KEMP 

  

The following action has been taken in the referenced case: 

X The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing a reply brief. : 

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

for filing 
  

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

Motion to consolidate granted. 

_X Motion to supplement or correct the record granted. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: Matt Davidson 
Deputy Clerk 
  

MOT-2 
7/87 

Mary Beth Westmoreland, Esq. 

Robert H. Stroup, Esq. 

John Charles Boger, Esq. 

 



  

  

ren 
IN THE UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS 

ELEVENTH CIRCUIT _ 
  

FOR THE ELEVENTH CIRCUIT 

  FEB 2 3 1989 
  

    
Nos. 88-8085 & 89-8085 

AL
 
A
 

4. 
Len

 
A
D
 

MIGUEL J. CORTEZ 
CLERK 

A AEE T— 

  

WARREN McCLESKEY, 
Petitioner-Appellee, 
Cross—-Appellant, 

versus 

RALPH M. KEMP, Superintendent, 
Georgia Diagnostic and Classification 

Center, 
Respondent-Appellant, 
Cross—-Appellee. 

WARREN McCLESKEY, 
Petitioner-Appellee, 

versus 

RALPH KEMP, etc., 
Respondent-Appellant. 

  

Appeals from the United States District Court 
for the Northern District of Georgia 
  

ORDER: 

Appellant Kemp's motion to consolidate appeal no. 88-8085 

with appeal no. 89-8085 is Grenled : 

Appellant Kemp's motion to supplement the record on appeal 

is Gperled 

GR els A er. 
  

UNITED STATES CIRCUIT JUDGE 

 



1:87-cv—-01517 

  

Julius L. Chambers, Esq. 
NAACP Legal Defense Fund 
99 Hudson Street 

16th Floor 

New York, NY 10013 

 



dluited Btates District Gow 
NORTHERN DISTRICT OF GEORGIA 

  

2211 UNITED STATES COURTHOUSE 

73 SPRING STRELT, 5.wW, 

  

LUTHER D. THOMAS ATLANTA, GEORGIA 30335 

CLERK March 31. 1989 

Mr. Wiguel J. Cortez, Jr., Clerk D.C. No. 1:87-CV-1517-J0F 
United States Court of Appeals, Eleventh Circuit | 
50: Spring Street, S.4. U.S.C.A. No. 89-8085 

  tltanta, GA 30303-3147 

IN RE: WARREN MCCLESKEY VS RALPH M. KEMP, WARDEN 
Rok kok ok ohuik x ddahak de kak Kk Rididiih RRR Ik RAK Rk hh RR RR RA Tw hi 

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

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

  

  

First Notice of Appeal: Yes HO Date(s) of other notices: 
Supplemental 

XX Certified record on appeal consisting of: 

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

Volume(s) of exhibits/depositions. Other: 
  

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

Copy of CJA form appointing counsel. 

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

  

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

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

The Judge or Magistrate appealed from is 
  

The Court Reporter(s) are 
  

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

This is a DEATII PENALTY appeal. 
  

CC: Sincerely 

LUTHER D. THOMAS, Clerk 

rn 0 ALY 
Deputy Clerk 
   



United States Court of Appeals 
Eleventh Circuit 
56 Forsyth Street, N.W. 

Atlanta, Georgia 30303 
Miguel J. Cortez April 3, 1989 In Replying Give Number 

Clerk Of Case And Names of Parties 

  

MEMORANDUM TO COUNSEL OR PARTIES: 

RE: Nos. 88-8085 & 89-8085 —- MCCLESKEY V. ZANT 

DC DKT NO: 87-CV+1517 

  

Pursuant to Fed.R.App.P. 12(b), be advised that the record is complete 
for purposes of appeal. Appellant’s brief and record excerpts are due 
within 40 days from this date. In cross appeals, the plaintiff in the 
court below is deemed the appellant unless the parties other agree. 
See Fed.R.App.P. 28, 30, 31 and 32, and the corresponding circuit rules 
for further information on preparing briefs and record excerpts. 

Enclosed is an indexed copy of the certified district court docket 
entries which show material certified to this court as the record. Counsel 
are requested to use this docket sheet and their own file copies of the 
court papers in preparing the brief and record excerpts. Please refer to 
the attached sheet for information on referencing the record. 

Both appellant and appellee are urged to review these entries promptly as 
extensions to the briefing schedule are disfavored. If the record is 
incomplete for purposes of appeal you should within fourteen (14) days 
request the district court to supplement the record [See Fed.R.App.P. 
10(e)], and notify us that you have done so. (Please note that such a 
request does not itself interrupt or extend the briefing schedule 
established above). 

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

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

Matt Davidson By: 
  

Deputy Clerk 

NOTE TO COUNSEL: Please note that the record on appeal in 88-8085 has this day 

been supplemented with 1 vol. of lst supplemental record 

which contains the Rule 60(b) pleadings (see last page of 

the attached district court docket sheet). 

  

Encl. BR=~2 “{1/89) 
Mary Beth Westmoreland, Esq. Robert #H. Stroup, Esq. 

Julius. lL. Chambers, Esq. John Charles Boger, Esq. 

 



    

Lite Cir. R. 28-2 Briefs—Contents. Each pnacpal aad amicus sre! nail connst, 
12 the order usted. of (he fodowng: 

(a) Cover Elements 10 be howe on the cover page include the ame of 
this court, Se ber, aame of parties, jurisdiction from which the appeal is 
being taken, identificazica of brief (e.g. appetiang, appeiies), and came of atorney: 

(¢) Statement of J Each brief shall inciuds a concise statement of the 
seLSTy OF jurisdiction of this court, coataining citations of 
authority when necessary. 

n Statement of the Issues. : : : 

-(g) Statement of the Is the stacement of the case, 88 in olf other sessions: 
of the rey regarding mener ia the recerd shall bs sappermed by 8 nt 

reference to the volume, document cumber and page sumber of the original ressrd- 
where the master reiied upoa is to be found. The statement of the case shail includes 

(I) course of proceedings and dispositions ia the court below: IN A CRIME. oo 
NAL CASE THE PARTY SHOULD STATE WHETHER THE = 
DEFENDANT [S INCARCERATED: 

4 Raine OF 1h 14. A AIRE, tae oF foie SoA NA 
standard of professionalism. It must state the facts accurately, thoss 

"favorable and thoss unfavorabis to the party. Inference draws from facts ? 
must be identified as such; 

(iif) Sateen Lie HAMAS 0h scopb ol soviem 150 rach Soasiation. Pia 
example, where the appeal is from an exercise of district court discretion: 
there shail be a statement that the standard of review is whether the districg 
court abused its discretion. The appropriate standard or scope of review 
for other contentions should be similarly indicated, ¢.g., that the districs 
court erred in formulating or applying a rule of law; or that there is in 

~ sufficient evidence to support a verdict; or that fact findings of the trial 
judge are clearly erroneous under Fed.R.Civ.P. 52(a); or that there is a 
lack of substantial evidence in the record as a whole to support the fac- 
tual findings of an administrative agency, or that the agency’s action, 
findings and conclusions should be heid unlawful and set aside for the 

Non reasons set forth in § U.S.C. § 706(2). 

(h) Summary of the Argument. The opening briefs of the parties shall also 

contain a summary of argument, suitably paragraphed, which should be a clear, ac- 
curate and succinct condensation of the argument actually made in the body of the 
brief..It should not be a mere repetition of the headings under which the argument 

- is arranged. [t should seldom exceed two and never five pages. 

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

(j) Conclusion. 

(k) Certificate of Service. 

11th Cir. R. 28-3 R Brief. A reply brief goad contain oaly irems (a), (d), (0), (i), 
and (k) of Lith eh 

  

11th Cir. R. 28-4 Briefs from Party Represented by Caunsel. When a pasty is rep- 
resented by counsel, the clerk may not accept a brief from the party. 

 



  

INSTRUCTIONS ON MAKING PROPER RECORD REFERENCES 
  

Record references to pleadings and other court papers may be 

made by referring to the volume number, document number, and 

page number within the document. Volume numbers and 

document numbers are shown on the enclosed district court 

docket entries. If not all documents bearing & document 

number have been included in the record transmitted to the 
court of appeals, the document numbers of those documents 

transmitted have been circled. If no document numbers are 

circled, all filings bearing document numbers are included 

{in the record transmitted to the court of appeals. 

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

record = volume # document # . page # 
reference 

Record references to transcripts may be cited by referring 

to the volume number assigned by the court and written in 

the margin next to the docket entry filing the transcript, 

and the page number. : 

For example, the reference R8-32 indicates: 

R 8 v 32. 

record voluze # page # 

reference 

Use the designatfen S2 preceded by the supplement number 
when refgazencing =a Supplemental Record (e.g., 1SR,  23R, 

ete.) - ERC, 

NOTE: DG NOT REFERENCE TRANSCRIPTS BY THE VOLUME NUMBER 

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

volume number assigned by the court and written in the 

margin next to the docket entry filing the. transcript. 

Transcript volume numbers follow in sequence after the final 

volume of pleadings and other court papers, and . are numbered 

in chronological order by date of hearing. Duplicate 

transcripts (including excerpts when a transcript of the 

entire proceeding or trial is later filed) are excluded from 

the record. : 

Fd 

 



  

U.S.iDistrict 

District Court for the Northern Lk. S. 

CIVIL DOCKET FOR CASE #: 

McCleskey v. et al 

Assigned to: 
Demand: $0,000 

Lead Docket: None 
Dkt# in other court: None 

Kemp, 

Cause: 

WARREN MCCLESKEY 

petitioner 

LL i 

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

respondent 

Docket as of March 25, -1988 9:11 

28:2254 Petition for Writ of Habeas Corpus 

DEATH 

Court 
District of Georgia (Atlanta) 

872-Cv—-1517 

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

530 

Federal Question 

Nature of Suit: 

Jurisdiction: 

(State) 

Robert H. Stroup 

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

Atlanta, GA 30303 

404-522-8500 

Stroup 

Julius L. Chambers, 

[COR LD NTC] 
James M. Nabrit, 

[COR LD NTC] 
NAACP Legal Defense Fund 
09 Hudson Street 

16th Floor 

New York, NY 

212-219-1900 

phv 

ITY, phy 

10013 

William Bradley Hill, Jr. 
[COR LD NTC] 
Mary Beth Westmoreland 
{COR 1D NIC] 
Office of State Attorney 
General 

40 Capitol Square, S.W. 
132 Judicial Building 

anta, ey. 3 Sra 0334 ATTEST: A TRUE COPY : CERT] D THIS 24 
Paes, 24 
B Thoma Fo 

vi Rover 

Deputy Clerk 

al Page 1 

 



   
Proceedings include all events. / J: A 

1:%7cvl1bl7 McCleskey v. Kemp, et al DEATH BEG Vo do 

1/1/87 ©, PETITION for writ of habeas corpus with request, to 
proceed in forma pauperis with ORDER by Judge J. O. 

Forrester GRANTING request [1-2] . (yrm) 
[Entry-date . 7/8/37] 

  

  

  

7/3/57 2) MOTION by petitioner Warren McCleskey for discovery with 
attachments. (yrm) [Entry date 7/8/87] 

7/71/87 © MOTION by petitioner Warren McCleskey for stay of 
execution with attachments. (yrm) [Entry date 7/8/87] 

1/8/87 ph (yrm) £7 

7/8/87 (3) Response by respondent Ralph M. Kemp to petition for writ ,/ A 
of habeas corpus [1-1] with brief in support. (yrm) Vol ~~ 

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

7/8/87 ie SUBMITTED to Judge J. 0. Forrester on motion for stay of 
execution by Warren McCleskey [3-1], motion for discovery 
by Warren McCleskey (2-11, order [1-3], petition for writ 

of habeas corpus [1-1] (yrm) 

7/8/57 ) Affidavit of John Booger & Robert Stroup filled. (4t) 
[Entry date 7/16/87] 

7/8/87 — HEARING held on petition for writ of habeas corpus [1-1] 
before Judge J. 0. Forrester . Affidavits of John C. Boger 
5% Robert H. Stroup filed (also marked as exhs by pltf. #1 '& 
2. Order directing respondent to produce petitioner for hrg. 
filed (executed by state) (I don't find this order). R. 

Stroup, R. Parker, C. Hamilton & W. Harris sworn § 
testified. PltF. exhs 3,4,5,6,7,8,9 ADMITTED. (Order above 

that IT could not find wag rec'd in office 8/10 from judge's 
office and stamped filed 7/8/87.) (dt) 

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

1/8/87 (0) ORDER that respondent to produce Mr. McCleskey for hrg on 
3/8/87 by Judge J. O. Forrester. (4dr) 

[Entry date 8/24/87] 

7/3/87 Nii HEARING continued on petition for writ of habeas corpus 

[1-1] before Judge J. QO. Forrester W.Harris, W. Jowers?, 

C. Jackson, 8S. Dorsey, R. Parker, D. Kelsey, «l, Worthy all 
sworn & testified. Pltf's exh 10 ADMITTED. Court verbally 
stayed the execution of petitioner set for 7/14/87 pending 
further evidentiary hrg to be held the first week in 
August, (dt) [Entry date 7/16/87] 

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

ont Vol 1 Docket as of March 25,1988 9:11 am Page 2 co 4 ’ 
  

 



   
  

" Proceedings include all events. Jo<43 

1:87cv1517 McCleskey v. Kemp, et al DEATH Cont Vol ] 

y abun." 

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

been telephonically notified of the stay of execution. (dt) 
[Entry date 7/16/87] [Edit date 2/4/88] 
  

7/14/37" ~~ Transcript filed for dates of 7/9/87. 4{4tL) 
[Entry date 7/20/87] 

2/15/87 —= Transcript filed for dates of 7/8/87. {(4t) 
[Entry date 7/21/87] 
  = —— 

8/3/57 (2/ ORDER DIRECTING respondent to produce the petitioner for 
hrg. on 8/47/8% at 9:30 a.m. by Judge J. O. Forrester ..cC 

(dt) [Entry date 8/5/87] 
3 

8/5/87 (0) MOTION by petitioner Warren McCleskey to prohibit recall 
of witnesses with brief in support. (dt) 
[Entry date 8/6/87] 

8/Y0/F + = Evidentiary hearing resumed from July 9, 1987 . U. Worthy, 
C. Hamilton, S. Dorsey, W. Jowers, W. Harris, R. Parker all 

sworn & testified. Pltf's exh 16 ADMITTED. Petitioners 
post-hearing brief due w/in 30 days from today (9/10/87) 
Respondent's reply due w/in 10 days from 9/10/87. Clerk to 
submit file after conclusion of briefing schedule. (dt) 
[Entry date 8/24/87] 

“~~ 

  

  

8/10/87 a2) RESPONSE by respondent Ralph M. Kemp in opposition to 
motion to prohibit recall of witnesses by Warren McCleskey 
[10-1] {rec'd Dy me 8/21/87) (dt) {Entry date 8/24/87) 

8/17/87 ®, ORDER Federal Public Defender Program, Inc. 1s appointed to 
represent plft. by Judge J. O. Forrester .cc (db) 
[Entry date 9/3/87] 

9/9/87 (is) MOTION by petitioner Warren McCleskey to exceed page limit 
with brief in support. (dt) [Entry date ..9/11/87) 

8/9/87 @) POST HEARING MEMORANDUM of Law by petitioner Warren 

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

oT, 

9/14/87 (6) Application for. leave of absence of Robert H. Stroup 
w/prop order. to JOF. (dt) [Entry date 9/15/87] 

O/I5/8% vr Transcript filed for dates of 8/10/87. (dt) 
[Entry date 0/17/87) 

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

absence of Robert H. Stroup [16-1] beginning 10/23/87 and 
extending through 10/30/87 for Robert H. Stroup .. CC (dt) 
[Entry date 9/21/87) 

0/21/87 ©, MOTION by respondent Ralph M. Kemp to extend time to file 
briefito 9/28/87 with brief in support. to JOF any action 
pow. (8b) [Entry date 9/22/87] 

\ ) \ ) 

Pocket ag of March 25, 1988 9:11 .am Page 3 CONT. Vo L ] 
  

 



   
Proceedings include all events. 
1:87cv1517 McCleskey v. Kemp, et al DEATH 

  

9/23/87 (19) ORDER GRANTING motion to extend time to file brief to 
9/28/87 by Ralph M. Kemp [18-1] by Judge J. O. Forrester 
cc. Order. is on motion of 9/21/87 indicated as granted. (dt) 
[Entry date 9/28/87] ™ \/ 

  
8/29/87 im SUBMITTED: to Judge J. 'O. Forrester on motion to eXCeed mv = 7 Ah l = 

page limit: by Warren McCleskey [14-1] . (4t) Sel Vol < 

10/1/87 (20) POST-HEARING Brief by respondent Ralph M. Kemp. to JOF 
(dt) [Entry date 10/5/87] 

10/1/87 (21) POST-HEARING Reply Brief by petitioner Warren McCleskey. 
to JOF. (dt) [Entry date 10/5/37] 

10/9/87 —— SUBMITTED to Judge J. O. Forrester on briefs.. (dt) 

12/3/87 == Steno notes of proceedings held July 8 & Aug. 10,1987 
before Judge J. O. Forrester , by . (db) 

12/23/87 (22) ORDER GRANTING IN PART AND DENYING IN PART petition for 
writ of habeas corpus [1-1], (see order) DENYING motion for 

discovery by Warren McCleskey [2-1], GRANTING motion to 
exceed page limit by Warren McCleskey [14-1] by Judge J. 
O. Forrester .. cc (dt) [Entry date 12/24/87] 

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

respondent, Ralph M. Kemp, Warden directing the respondent 
to re-try petitioner within 120:days from receipt of the 
12/13/87 ~snunc pro. tunc for 12/23/87; (copies to counsel - 
judgment entered with permission of JOF) (db) 
[Entry date 1/26/88] 

1/4/88 — Steno notes of proceedings held July 8, 1987 before Judge 
J. "0. Forrester , by . (4) 

1/15/58 Gs) NOTICE OF APPEAL from order [22-1] by respondent Ralph M. 
Kemp. {c.dkt.0.].t0 USCA 1/27/88) ACK 88-3085 (db) 

[Entry date 1/27/88] [Edit date 2/25/88] : 

1/15/88 (25) MOTION by respondent Ralph M. Kemp for stay of execution 
with brief in support. (db) [Entry date 1/27/88] 

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

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

[Edit date 2/25/88] 

1/27/88 (27) Certificate of probable cause requested by petitioner with 
memo in support and proposed order. (db) 
[Entry date. 2/3/58] 

2/3/8% een SUBMITTED to Judge J. 0. Forrester on probable cause 

certlificate/certification {27-11 and MOTION for stay of 

judgment. (db) 
) 

/ [ f -“ 

Docketl as of March:25, 1988 9:11 am Page 4 Cont Vo | 
  

 



   
  

Proceedings include all events. Ve 1 4 \/ - 

1:87cvil51l7 McCleskey v. Kemp, et al DEATH CONT Yo Li 

/ ZZ) \ 

3/8/88 {28 ORDER DIRECTING that there exists probable cause to appeal 
by Judge J. O. Forrester filed. cc (cert cpy to USCA). (1k) 
[Entry date 3/14/88] 

3/9/88. (29) ORDER GRANTING motion for stay of execution by Ralph M. 
Kemp [25-1] staying judgment {23-1] untll the issuance of 
the mandate of the 11th Circuit Court of Appeals and until 
that mandate is made the judgment of this court, thereby 
completing the appellate process by Judge J. 0. Forrester 
CC ‘{certrcpy to USCA). {lk) [Entry date 3/16/88] Bi tr 

END: 0. 
  

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

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

Pocket as of March 25, 1988 9:11 .am Page 5 

 



   
Proceedings include all events. 
1:87cv1517 

3/8/88 28 

3/9/88 29 

3/9/88 —-— 

3/17/88 30 

3/24/88 — 

  

McCleskey v. Kemp, et al 

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

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

File retained by court. (1k) [Entry date 3/16/88] 

Forthwith letter. (lk) [Entry date 3/21/88] 

Certified and TRANSMITTED RECORD on to U.S. Court of’ 
Appeals. ACK (er) [Entry date 3/25/88] 

[Edit date 4/14/88]   

5/6/88 GY 

5/13/88 G2) 

5/23/88 —- 

6/3/88 ( 33 

6/17/88 (34 

6/23/88 —- 

8/1/88 (33) 

8/2/88 

TT BEGIN VOLT, 182 supieme tos 
MOTION by respondent Ralph M. Kemp for relief from final 
judgment pursuant to Rule 60(B) with brief in support. (1k) 
[Entry date 5/12/88] 

RESPONSE by petitioner Warren McCleskey to motion for 
relief from final judgment pursuant to Rule 60(B) by Ralph 
M. Kemp [31-1] (lk) [Entry date 5/23/88] 

SUBMITTED to Judge J. O. Forrester on motion for relief 
from final judgment pursuant to Rule 60(B) by Ralph M. Kemp 
[31-1] tlk) 

Application for leave of absence of James M. Nabrit III 
from 7/7/88 thru 7/28/88 . (JOF for approval). (1k) 
[Entry date 6/13/88] 

ORDER ALLOWING extension of discovery until 8,/1/88 on the 
two issues of due diligence and of Officer Evans' knowledge 
in reference to the respondent's motion for relief from 
final judgment pursuant to Rule 60(b); response time for 
paper discovery is shortened to 15 days; if a dispute 
arises during discovery, parties are DIRECTED to seek a 
conference by Judge J. O, Porrester . cc (lk) 

Case closed administratively. (yrm) 

MOTION by petitioner Warren McCleskey to expand the record 
with brief in support. (1k) [Entry date 8/9/88] 

ORDER GRANTING application motion for leave of absence of 
James M. Nabrit 111 [33-1] from 7/7/88 thru 7/28/88 by 
Judge J. O. Forrester . cc (lk) [Entry date 8/10/88] 

Docket as of March 31, 1989 11:30 am Page 5 

  

DEATH APPEAL



   
1:87cv1sBly 

8/2/88 

8/11/88 

8/11/88 

8/25/88 

1/10/89 

1/30/89 

1/30/89 

2/13/89 

3/13/89 

Proceedings include all events. 
McCleskey v. Kemp, et al DEATH APPEAL 

SUPPLEMENTAL BRIEF by respondent Ralph M. Kemp motion for 
relief from final judgment pursuant to Rule 60(B) by Ralph 
M. Kemp [31-1] (1k) [Entry date 8/10/88] 

Reply brief in response to respondent's supplement to 
motion for relief from final judgment uner Rule 60(b) by 
petitioner Warren McCleskey . (lk) [Entry date 8/18/88] 

Amendment (2nd) motion to expand the record [35-1] by 
petitioner Warren McCleskey . (lk) [Entry date 8/18/88] 

SUBMITTED to Judge J. O. Forrester on motion to expand the 
record by Warren McCleskey [35-1] (1k) 

ORDER GRANTING motion to expand the record by Warren 
- McCleskey [35-1] and respondent's motion for relief from 

final judgment is DENIED by Judge J. O. Forrester . cc (1k) 
[Entry date 1/11/89] 

NOTICE OF APPEAL from order [40-1] by respondent Ralph M. 
Remp . ‘cc (Cert cpy of order, docket & NOA to USCA). (1k) 
[Entry date 2/6/89] 

USCA appeal fees received $ 105.00 (1k) 
[Entry date 2/6/89] 

Acknowledgement by Court of Appeals on appeal by Ralph M. 
Remp [41-1]  . USCA dkt no. 89-8085 (1k) 
[Entry date 2/17/89] 

FORTHWITH LETTER from U.S.C.A. (Please forward the 
supplemental record from the denial of the Rule 60(b) 
motion. (lk) [Entry date 3/17/89] END Lol ;   

  

Jt Supplement, 

Docket as of March 31, 1989 11:30 am Page 6 

 



The Department of Lato 

State of Georgia 

Atlanta 
MICHAEL J. BOWERS 30334 

ATTORNEY GENERAL 

  

132 STATE JUDICIAL BUILDING 

TELEPHONE (404) 656-3300 

FAX (404) 651-9148 

May 18, 1989 

Mr. Matt Davidson 
Deputy Clerk 

United States Court of Appeals 
Eleventh Circuit 
56 Porsyth Street, N.W, 
Atlanta, Georgia 30303 

RE: Warren McCleskey v. Walter Zant, Warden, No. 88-8085 and 

89-8085. 
  

Dear Mr. Davidson: 

I am writing to advise you and to request that you advise the 
Court that there is a typographical error in the brief 
submitted on behalf of the Respondent/Appellant in the 
above-styled action. While the typographical error is short, 
it may cause some confusion on the part of the Court and 
counsel would wish to have the Court made aware of this error. 
Line 14 on page 85 of the brief should read as follows: 
"efforts by counsel for the Petitioner, including utilizing." 
The brief as it is presently submitted to the Court specifies 
counsel for the Respondent. I apologize to the Court for this 
typographical error, and I hope this does not cause too much 

inconvenience. 

Thank you for making the Court aware of this error. 

Sincerely, 

4 WESTMORELAND 

Senior Assistant 
Attorney General 

MBW: jw 

¢C:. Robert H.. Stroup 
John Charles Boger  



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW, 

Atlanta, Georgia 30303 
Miguel J. Cortez May 25, 1989 In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

Nos. 88-8085 & 89-8085 - MCCLESKEY V. ZANT 

  

The following action has been taken in the referenced case: 

XX The enclosed order has been ENTERED. 

XX An extension of time has been granted to and including 
June 27, 1989, 

for filing appellant's/petitioner's brief. . 

XxX for filing appellee's/respondent's brief+cross-appellant's, 

for filing a reply brief. 

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

For filing 
  

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

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

XX Motion to file an oversized brief not exceeding 80 pages is 
granted. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: Matt Davidson 

Deputy Clerk 
  

MOT-2 
7/87 

Robert H. Stroup, Esq. 
John Charles Boger, Esq. 
Mary Beth Westmoreland, Esq. 

 



IN THE UNITED STATES COURT OF APPEALS 
  

  

FILED 
EVENTH CI FOR THE ELEV RCL? U.S. COURT OF APPEALS 

NTH CIRCUIT 

MAY 2 5 1989 

  

No. 88-8085 

  

i 
1 
i 

  

WARREN MCCLESKEY, 
MIGUEL J. CORTEZ 

Petitioner-Appellee, CLERK 
Cross=-Appellafit +, rr   

versus 

WALTER ZANT, Superintendent, Georgia 
Diagnostic and Classification Center, 

Respondent-Appellant, 
Cross-Appellee. 

  

No. 89-8085 

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 

versus 

WALTER ZANT, Superintendent, Georgia 
Diagnostic and Classification Center, 

Respondent-Appellant. 

Appeals from the United States District Court for the 
Northern District of Georgia 

ORD E:Rs¢ 

Appellee/Cross-Appellant's motion for an extension of time 

to file a brief through June 27, 1989, is SaamtitL. . 

Appellee/Cross-Appellant's motion to file an oversized 

brief not exceeding 80 pages is Granted... 

Lee. Daopudal 
  

UNITED STATES CIRCUIT JUDGE 

 



Warren McCleskey D-003935 
Box 3877, G4-100 G.D.C.C. 

Jackson, GA 30233 

 



  

BE tats NOTICE TO ALL PARTIES: PLEASE FILL IN, SIGH AND RETURN------=- === 

(PLEASE PRINT OR hid (0 ERR ERY 

PLEASE RETURN THIS PRE-ADDRESSED, STAMPED POSTC bh itHoet DELAY ito wlio that ALL 

parties have Tecelved the calendar. You are requested to IIl1 In all blanks below, 

SIGN and return this postcard, even though you may not plan to present arqument. 

pos 

  

I hereby acknowledge receipt of a copy of the printed calendar showing case 

BC 8085 

wo. -9085 , Waren MCleskey .. Walley Zant 
  

  

is to be argued at 45a... on Seplember 19 ' nT in Courtroom 

339 . at Ania ; _ Conia 

(Clty) 

Attorney for Lh ren (Ms Closkey Your Signat Grulom. 

pene oc > Johu) Chores Boer we PST 29 wil: 

Attorney Boer will present argument for the above-named paity. 

J 
NOTE: Counsel presenting argument should personally appear in the Clerk's Office at 

the address listed on the calendar at least 30 minutes before court convenes. 

        

  

  

    

  

      

  

  

*U.S. GPO: 1988 532-463/60186 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 
89-8085 

  

WARREN MCCLESKEY, 

Vis 

WALTER ZANT, WARDEN, 

Respondent/Appellant, 
Cross—-Appellee. 

  

MOTION TO EXCEED PAGE LIMITATION 

FOR PRINCIPAL BRIEF OF THE APPELLANT 

  

MICHAEL J. BOWERS 
Attorney General 

H. PERRY MICHAEL 

Executive Assistant 

Attorney General 

WILLIAM B. HILL, JR. 

Deputy 
Attorney General 

SUSAN V. BOLEYN 

Please serve: Senior Assistant 
Attorney General 

MARY BETH WESTMORELAND 

132 state Judicial Bldg. MARY BETH WESTMORELAND 

40 Capitol Square, S.W. Senior Assistant 
Atlanta, Georgia 30334 Attorney General 
(404) 656-3349 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 
89-8085 

  

WARREN MCCLESKEY, 

Petitioner/Appellee, 
Cross—-Appellant, 

¥Y. 

WALTER ZANT, WARDEN, 

Respondent/Appellant, 
Cross—-Appellee. 

  

MOTION TO EXCEED PAGE LIMITATION 

FOR PRINCIPAL BRIEF OF THE APPELLANT 

  

Comes now Walter Zant, Appellant in the above-styled 

action, through counsel, and moves this Court for 

permission to file a brief in excess of the 55 page 

limitation set out in Rule 28-1 of the Rules of this 

Court, showing and stating the following: 

This case is an appeal taken by the warden from the 

granting of habeas corpus relief by the United States 

District Court for the Northern District of Georgia and 

from the denial of a motion for relief from judgment under 

FP.R.Civ.P. 60(b). This case involves the imposition of 

 



  

the death penalty and has already been reviewed by the en 

banc court on a prior occasion. 

Evidentiary hearings were held on three separate days 

in the United States District Court for the Northern 

District of Georgia and that court granted relief in spite 

of Appellant's assertions that there was an abuse of the 

writ. Further, subsequent to that ruling, additional 

pleadings were filed requesting relief from judgment, 

including an additional deposition of one hundred pages 

and extensive pleadings. 

Due to the extensive factual development necessary to 

examine the issue presented by the granting of relief, 

that being, an allegation of a Sixth Amendment violation 

by the utilization of a state informant or agent, 

Appellant has found it necessary to exceed the initial 

page limitation provided by the rules of this Court. 

Further, the procedural history alone is quite lengthy and 

Appellant felt it necessary to set forth the entire 

procedural history and facts for consideration by this 

Court. Lastly, the issue regarding the request for relief 

from judgment will require detailed factual and legal 

development 

The instant request is not made for the purpose of 

burdening the court, but is based upon Appellant's belief 

that this is necessary to fully brief the issues presented 

tO the court. 

 



  

CONCLUSION 
  

WHEREFORE, based upon all the foregoing, Appellant 

respectfully requests permission to file a brief in excess 

Of the page limit up to and including 95 pages in length. 

ba ’ 2 de on Respectfully submitted, 

MICHAEL J. BOWERS 071650 
Attorney General 

H. PERRY MICHAEL 504000 

Executive Assistant 

Attorney General 

  

       
   

AE 

MB.    

  

7 

Deputy Attorney Ge 

An Lf : 2% 
SUSAN V. BOLEYN 7 ' 0653850 

Senior Assistant Attorney General 

  

   

    

rors a Lo. ~g V4 

TH WESTMORELAND 50150 
Assistant Attorney General 

    
     

Please serve: 

MARY BETH WESTMORELAND 

132 State Judicial Building 
40 Capitol Square 
Atlanta, Georgia 30334 

(404) 656-3349 

 



  

CERTIPICATE OP SERVICE 
  

I do hereby certify that I have this day served 

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

by depositing a copy thereof, postage prepaid, in the 

United States Mail, properly addressed upon: 

Robert B. Stroup 
141 Walton Street 
Atlanta, Georgia 30303 

John Charles Boger 
99 Hudson Street 
l6th Floor 
New York, New York 10013 

Thi spfoffh day of April, 1939, 

Whos uh De oriecele act 
  

‘MARY BETH WESTMORELAND 
Seni Assistant 

Attorney General 

 



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NNW. 

Atlanta, Georgia 30303 Ih Reliving Give Numbe Miguel J. Cortez : D Rep Yip IVE Num 
g Pa April 26, 19839 Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

Nos. 88-8085 & 89-3085 - MCCLESKEY V. ZANT 

  

The following action has been taken in the referenced case: 

XX The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. - 

for filing appellee's/respondent's brief. 

for filing a reply brief. 

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

for filing 
  

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

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: Matt Davidson 

Deputy Clerk 
  

MOT-2 

Mary Beth Westmoreland, Esq. 7/87 

Susan 'V. Boleyn, Esq. 
william 8B. Hill, Jr., Esg. 

Robert H, Stroup, Esq. 

Julius L. Chambers, Esq. 
James M., Nabrit, 11, Esq. 
John Charles Boger, Esq. 

 



  

  

FILED 

IN THE UNITED STATES coURT oF APPHALS US. COURT OF APPEALS 
ELEVENTH CIRCUIT 
  

FOR THE ELEVENTH CIRCUIT 

APR 26 1969 
        

Bo. 88-2033 MIGUEL J. CORTEZ 
CLERK     

ras 

WARREN MCCLESKEY, 

Petitioner-Appellee, 
Croass=-Appellant, 

versus 

WALTER ZANT, Superintendent, Georgia 

Diagnostic and Classification Center, 

Respondent-Appellant, 

Cross=-Appellee, 

  

No. 89-8085 

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 

versus 

WALTER ZANT, Superintendent, Georgia 

Diagnostic and Classification Center, 

Respondent-Appellant. 

——— de SE SE. SEL GEN GEL SED SE NE EEF WE pe en no — de wh 

Appeals from the United States District Court for the 
Northern District of Georgila 

WE WY pe ome ma mn on oe SE Mk SE AE EE ES WES SE SE WP YE Ye me ee 

OD BR DER: 

Appellant/Cross—-Appellee's motion to file an oversized 

brief not exceeding 95 pages is gg 

Ge, een Ce nr 
  

UNITED STH®TES CIRCUIT JUDGE 

 



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, N.W. 

Atlanta, Georgia 30303 wy 

Mige»l J. Cortez June 28, 1989 In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

Luther D. Thomas 

Clerk, U. 8S. District Court 

2211 U. SS. Courthouse 

75 Spring St., S.W. 
Atlanta, GA 30335 

No. 88-8085 - MCCLESKEY V. ZANT 

(D. C. Docket No. 87-CV-1517) 

Dear Mr. Thomas: 

Enclosed is a certified copy of a motion of appellee and entry of 
dismissal in the above referenced appeal. The dismissal applies 
only to the notice of cross appeal which was filed January 21, 1988. = 
The main notice of appeal filed January 15, 1988 remains open. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

At {ston 
Deputy Clerk 
  

/mcd 

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

 



    

FILED 
U.S. COURT OF APPEALS 

ENTH CIRCUIT 

JUN 2 8 1389 

       

et 
MA

 
t
r
 
r
t
 

b
i
 

I
 

  
      

  

  JUN © 819 
MIGUEL J. CORTEZ 

CLERK 
ar samy ~a TL ANTA, IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 

& 89-8085 

  

WARREN McCLESKEY, 

Petitioner /Appellee, = 

Cross-Apellant, 

Vv. 

WALTER ZANT, Warden, 

Respondent/Appellant, 

Cross-Appellee. 

  

MOTION FOR VOLUNTARY DISMISSAL 

  

Comes now Warren McCleskey, Appellee/Cross-Appellant in 

the above-styled action, through counsel, and moves to 

voluntarily dismiss his cross-appeal in No. 88-8085, 

Respectfully submitted, 

lobed XN. Seen 
ROBERT H. STROUP 

141 Vialton St., ad 

Atlanta, Georgia 30303 

  

JOHN CHARLES BOGER 

99 Hudson St. 

16th Floor 

New York, New York 10013 

ATTORNEYS FOR APPELLEE 

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served he 

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

depositing a copy thereof, postage prepaid, in the United 

States Mail, properly addressed upon: 

MARY BETH WESTMORELAND 

132 State Judicial Building 

40 Capitol Square, S.W. 

Atlanta, Georgia 30334 

ris 20 day of Sete , 1939, 

Toba Freecs 
ROBERT H. STROUD 

  

  

ENTRY OF DISMISSAL 
  

Pursuant to the foregoing motion of appellee, Rule 42, FRAP, and 
Rule 42-1 (a) of this Court, the above referenced cross-appeal was 
duly entered dismissed this 28th day of June, 1989. 

MIGUEL J. CORTEZ 

Clerk of the United States Court 
of for the Eleventh Circuit 

v/v Fort lel 
Deputy Clerk 

  

  

FOR THE COURT - BY DIRECTION 

 



CUnited States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW. 

Atlanta, Georgia 30303 

August 25, 1989 

  

Miguel J. Cortez 

Clerk 

In Replying Give Number 

Of Case And Names Of Parties 

NOTICE TO ALL COUNSEL OF RECORD 

No. 88-8085 & 89-8085 - WARREN MCCLESKEY V. WALTER ZANT, 

Superintendent, Georgia Diagnostic and 
Classification Center, Appellant. 

This will confirm my telephone conversations with you in which you 
were advised that oral argument in the above capital case has been 
scheduled for Tuesday, September 19, 1989, at the U. S. Court of 

Appeals Building at the above address, commencing at 11:45 a.m. 
Counsel will be allotted thirty (30) minutes oral argument time per 
side. Counsel presenting oral argument should check-in in Court- 
room 339 no later than 11:15 a.m. on the day of the hearing. 

Enclosed is a post card which we ask that you complete, sign and 
return to the Clerk's Office acknowleding receipt of the calendaring 

  

information. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

hy, A av Jon 
Deputy Clerk 

/mcd 

Mary Beth Westmoreland, Esq. 
Robert H. Stroup, Esq. 
John Charles Boger, Esq. 

 



  

Nos. 

ATLANTA, GEORGIA 
8/25/89 

SPECIAL HEARING 
(DEATH PENALTY CASE) 

TUESDAY, SEPTEMBER 19, 1989   

11:45 A.M. 
  

ATLANTA, GEORGIA 
  

COURTROOM 3 (Ve
) 

\O
 

  

88-8085 & 89-8085 - WARREN MCCLESKEY versus WALTER 
ZANT, Superintendent, Georgia 
Diagnostic and Classification 
Center, Appellant. 

 



  

UNITED STATES COURT OF APPEALS FOR THE 
ELEVENTH CIRCUIT 

NO. 88-8085 
89-8085 

WARREN MCCLESKEY, 
Petitioner/Appellee 

Vv. 

WALTER ZANT, WARDEN, 
Respondent/Appellant. 

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

ATLANTA DIVISION 

MOTION TO SUPPLEMENT THE RECORD 
  

MICHAEL J. BOWERS 
Attorney General 

H. PERRY MICHAPFRL 

Executive Assistant 

Attorney General 

WILLIAM B. HILL, JR. 
Deputy 

Attorney General 

SUSAN V. BOLEYN 

Please serve: Senior Assistant 
Attorney General 

MARY BETH WESTMORELAND 

132 State Judicial Bldg. MARY BETH WESTMORELAND 

40 Capitol Square, S.W. Senior Assistant 

Atlanta, Georgia 30334 Attorney General 

(404) 656-3349 

  

  

 



  

UNITED STATES COURT OF APPEALS FOR THE 
ELEVENTH CIRCUIT 

NO. 88-8085 
89-8085 

WARREN MCCLESKEY, 
Petitioner/Appellee, 

Y. 

WALTER ZANT, WARDEN, 
Respondent /Appellant. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 

MOTION TO SUPPLEMENT THE RECORD 
  

COMES NOW Walter Zant, Warden, Respondent/Appellant in 

the instant action and submits the presently filed motion 

to supplanant the record pending before this Court. 

Respondent would request that this Court either direct the 

district Court to forward to it the record in the first 

habeas corpus action involving the instant parties, that 

being McCleskey v. Zant, Civil Action No. C81-2434A, 
  

United States District Court, Northern District of 

Georgia, Atlanta Division, or provide the 

Respondent/Appellant with the opportunity to submit 

certain transcripts to this Court which Respondent feels 

may become necessary for this Court's review. 

  

  

 



  

On the day of oral argument before this Court, 

Respondent became aware of the fact that this Court did 

not have the prior record from the first federal habeas 

corpus action before it for consideration. Although this 

Court does have various portions of the first state habeas 

corpus proceeding, the Court apparently does not have the 

original trial transcript in its entirety nor the entire 

first state habeas corpus transcript. These documents 

were submitted to the district court in the first federal 

habeas corpus action. In pursuing the present habeas 

corpus action, rather than resubmit those documents to the 

district court, Respondent requested that the district 

court take judicial notice of those proceedings, 

Petitioner had no objection and the court agreed to do 

so. This is clearly appropriate under Allen v. Newsome, 
  

705. F.28 934 (11th Cir. 1986). Thus, the district court 

had those documents before it in making its determination 

on the issues presently being considered by this Court. 

Clearly, this court has the inherent equitable power 

to supplement the record, particularly to include such a 

document as state court trial transcript. Dickerson v. 
  

Alabama, 667 F.28 1364, 1367 (llth Cir.,), cert denied, 459 
  

U.S. 878 (1982). This is not a case of the Respondent 

requesting the court to consider documents not considered 

by the district court. 

  

 



  

Subsequent to the oral argument in this court, 

Respondent became concerned that the state habeas corpus 

transcript might be necessary for this Court's resolution 

of the question of abuse of the writ and feels certain 

that if this Court were to reach the merits of the issue 

presented, then the trial transcript would certainly be 

necessary to review the question of harmless error. Under 

these circumstances, Respondent feels that supplementation 

of the record in this Court is appropriate and virtually 

essential. 

 



  

CONCLUSION 
  

Wherefore, Respondent requests that this Court 

supplement the record in this case with the record from 

the district court in the former federal habeas corpus 

action of McCleskey v. Zant, No. C81-2434A, and issue an 
  

order directing the district court to send that record to 

this Court for its use. In the alternative, Respondent 

requests that this Court allow the Respondent to 

supplement the record in his matter by submitting a copy 

of the trial transcript and the first state habeas corpus 

transcript for this Court's utilization in its review of 

the issues. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 

Attorney General 

H. PERRY MICHAEL 504000 
Executive Assistant 

Attorney General 

Wi UA sn > AU, Sy 2 
  

WILLIAM B.: HILL, JR, ¢ * 354725 
Deputy Attorney General 

mar V. Prep 
  

SUSAN V. BOLEYN 7065850 
Senior Assistant Attorney General 

 



  

el TN RA 
Seniff as "WESTMORELAND 750150   

Seni Assistant Attorney General 

Please serve: 

MARY BETH WESTMORELAND 

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

  

 



  

CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing MOTION TO SUPPLEMENT THE RECORD, 

prior to filing the same, by depositing a copy thereof, 

postage prepaid, in the United States Mail, properly 

addressed upon: 

Roberti: H., Stroup 
141 walton Street, N.W. 

Atlanta, Georgia 30303 

John Charles Boger 
99 Hudson Street 
16th Ploor 
New York, New York 10013. 

This of October, 1989. 

  

   

  

Le 
"TH WESTMORELAND 

r Assistant 

Attorney General 

    
  

 



United States Court of Appeals 
Eleventh Circuit 

56 Forsyth Street, NW. 

Atlanta, Georgia 30303 
Miguel J. Cortez October 11, 1989 In Replying Give Number 

Clerk Of Case And Names Of Parties 

  

MEMORANDUM TO ADDRESSEES LISTED BELOW 

Nos. 88-8085 & 89-8085 —- MCCLESKEY .V. ZANT 

  

The following action has been taken in the referenced case: 

X The enclosed order has been ENTERED. 

An extension of time has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing a reply brief. 

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

for filling 
  

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

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

Sincerely, 

MIGUEL J. CORTEZ, Clerk 

By: Matt Davidson 

Deputy Clerk 
  

MOT-2 
7/87 

Mary Beth Westmoreland, Esq. 
Robert H. Stroup, Esqg. 

John Charles Boger, Esq. 

 



  

IN THE UNITED STATES COURT OF APPEALS 

Sao 

  FOR THE ELEVENTH CIRCUIT FILED 

| U.S. COURT OF APPEALS 
ELEVENTH CIRCUIT _ 

aa.
 

  
  

Nos. 88-8085 & 89-8085 

ACT 4 

| | 
MIGUEL J. CORTEZ 

Ai 
| CDW 
We RR { 

VEN 

  
  

WARREN MCCLESKEY, 

Petitioner-Appellee, 

versus 

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

~ Respondent-Appellant. 

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

  

ORDER: 

Appellant's alternative motion to supplement the record on 

appeal with a copy of the trial transcript and the first state 

habeas corpus transcript is granted. 

pies. J pid 
  UNITED STATES CIRCUIT JUDGE 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

  

Nos. 88-8085 

89-8085 

  

WARREN MCCLESKEY, 

Petitioner-Appellee, 

-against- 

WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification 

Center, 

Respondent-Appellant. 

  

On Appeal From The United States District Court 

For The Northern District Of Georgia 

Atlanta Division 

  

APPLICATION OF PETITIONER-APPELLEE WARREN 

McCLESKEY TO FILE SUGGESTION OF REHEARING IN BANC 

IN EXCESS OF FIFTEEN PAGES 

  

Petitioner-appellee Warren McCleskey, by his undersigned 

counsel, respectfully applies to this Court for an order 

permitting the filing of a Suggestion for Rehearing In Banc in 

excess of fifteen pages. 

In support of his application, Warren McCleskey shows to the 

Court that additional pages are necessary, to permit the filing 

of a brief of thirty-three pages, because of the complex set of 

circumstances which is the basis for this suggestion for 

rehearing in banc. 

To adequately brief his grounds for rehearing in banc, 

Warren McCleskey has needed to set out in some detail (i) the 

 



  

procedural history of the various habeas proceedings, (ii) the 

evidence presented to the district court in the present habeas 

proceeding, and the district court's findings thereon, (iii) the 

state trial evidence regarding the circumstances of the crime, 

and (iv) the legal errors which petitioner contends the panel 

made in dealing with the constitutional issues presented. 

Because of the number of issues which require briefing in 

this suggestion for rehearing in banc, the additional pages 

requested are necessary for adequate presentation of those issues 

to the Court. 

Dated: December 12, 1989 Respectfully submitted, 

ROBERT 'H. STROUP 

141 Walton St., N.W. 

Atlanta, Georgia 30303 

(404) 522-8500 

JULIUS L. CHAMBERS 

JOHN CHARLES BOGER 

99 Hudson St. 

New York, N.Y. 10013 

(212) 219-1900 

ATTORNEYS FOR PETITIONER- 

APPELLEE WARREN McCLESKEY 

BY: Robern. Kcee, 
/ 

  

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have served the opposing party 

the foregoing application by placing a copy of same in the 

United States mail, first-class postage affixed thereto and 

addressed to: 

Mary Beth Westmoreland, Esq. 

Assistant Attorney General 

132 State Judicial Bldg. 

Atlanta, Georgia 30334 

This 12th day of December, 1989. 

  

ROBERT H. STROUH/