Orders

    K 9 (63). 01%): Legal: 2d / 9), a5 | pa Or der Sep. 2 o- 30     

 



i | FILED IN CLERK'S OFFICE 
,  U.8.D.C.-Atlanta 
iE 

  

Q IN THE UNITED STATES DISTRICT COURT SEP 3 0 1991 
FOR THE NORTHERN DISTRICT OF GEORGIA LUTRER D. THOMAS, Clerk 

ATLANTA DIVISION : ; tO 

bul imin 
WARREN MCCLESKEY, 3 

Petitioner/Plaintiff, : 

: CIVIL ACTION NO. 

vs. 1:91-Cv-2310-J0OF 

MICHAEL BOWERS, et al., 

Respondents /Defendants. : 

ORDER 
This order follows a hearing on petitioner's consolidated 

emergency motion to stay his execution, his petition for writ of 

habeas corpus, and his complaint under 42 USC § 1983. A series of 

temporary stays were granted so that an evidentiary hearing could 

be completed. 

Ancillary to considering the motion for stay of execution, 

the court heard arguments and took evidence on the merits of the 

claims raised under § 1983 and in the petition for writ of habeas 

corpus. The court DENIED the stay [#1-1] after finding that 

petitioner had failed to present evidence in support of those 

claims. The court's ruling was upheld by the Eleventh Circuit 

Court of Appeals and the United States Supreme Court. The death 

penalty was imposed at 3:13 a.m., September 24, 1991. 

Accordingly, the court now orders that the complaint for 

relief under 42 USC § 1983 [#1-2] be DISMISSED. The petition for 

writ of habeas corpus [#1-3] is DENIED. The Clerk of the Court is 

DIRECTED to dismiss this action. 

SO ORDERED, this B30 4ay of tii. , 19901. 
__— 7 
  

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J. OWEN FO 

UNITED STA 

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DI RICT JUDGE 

        

 



   
SENT BY:Xerox Telecopier 7020 : 8-24-81 ; 6:51PM : Sup. Ct. of Ga.= 404 688 9440: 1 

SUPREME COURT OF GEORGIA 

ATLANTA SEP 2 4 1551 

The Honorable Supreme Court mer pursuant to adjournment. 

The following order was passed: 

S91H1673. WARREN McCLESXEY v. WALTER ZANT, WARDEN et al. 

petitioner has filed with this court a consolidated 

emergency motion for stay of execution and petition for habeas 

corpus. The petition for habeas corpus relief is dismissed 

because a petition was also filed in the Superior Court of Butts 

County. 
; ¥r : ot o 

We sua sponte consider whether leave to appeal from the 

denial of the habeas corpus petition filed ip Butts County should 

be granted by this court, and we hereby decline to grant leave to 

appeal. 

It is further ordered that the emergency motion for stay of 

exacution also be denied. 

All the Justices concur, except Weltner, J., not 

participating. 

: SUPREME COURT OF THE STATE OF GEORGIA, 

CLERK'S OFFICE, ATLANTA 

I certify that the above is a true extract from the minutes 

of the Supreme Court of Georgia. 

Witness my signature and the seal of said court hereto affixed 

the day and year last above written. 

HE /2. Sh thettianind Clerk. 

 



    
SENT BY:Xerox Telecopier 7020 : 9-24-81 ; 6:51PM Sup. Ct. of Ga.=- 404 688 89440:% 1 

SUPREME COURT OF GEORGIA 

SEP 2 4 fog 
ATLANTA 

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed: 

S91H1673. WARREN McCLESKXEY .v. WALTER ZANT, WARDEN et al. 

petitioner has filed with this court a consolidated 

emergency motion for stay of execution and petition for habeas 

corpus. The petition for habeas corpus relief is dismissed 

because a petition was also filed in the Superior Court of Butts 

_ County. 

oe We sua sponte consider whetMer leave to appeal frem the 

denial of the habeas corpus petition filed ip Butts County should 

be granted vy this court, and we hereby decline to grant leave tg 

appeal. 

It is further ordered that the emergency mction for stay of 

exacution also be denied. 

All the Justices concur, except Weltner, J., not’ 

participating. 

SUPREME COURT OF THE STATE OF GEORGIA, 

CLERX’S OFFICE, ATLANTA 

I certify that the above is a true extract from the minutas 

of the Supreme Court of Georgia. - 

Witness my signature and the seal of said court hereto affixed 

the day and year last above written.. 

ns 5. tlie Terk. 

 



      - SEP gd ‘91 g2idd SUPREME COUR OF Us Pols 3 

i ORDER LIST 

TUESDAY, SEPTEMBER 24, 1991 

ORDER IN PENDING CASE 

A~227 WARREN HCCLESKEY V. MICHAEL BOWERS, ATTORNEY GENERAL OF 
GEORGIA, ET AL. 

The application for stay of execution of sentence of 

death scheduled for September 24, 1991 to allow the 

filing of a petition for a writ of certiorari to 

the Superior Court of Butts County, Georgia 

and/or the United States Court of Appeals for the 

Eleventh Circuit, presented to Justice Kennedy and by him 

referred to the Court, is denied. 

Justice Marshall dissenting: 

I 

Adhering to my view that the death penalty is in all 

circumstances cruel and unusual punishment prohibited by 

the Eighth and Fourteenth Amendments, Gregd V. Georgia, 

428 U.S. 153, 231 (1976), I would grant the application 

for stay of execution in order to give the applicant time 

to file a petition for a writ of certiorari, and would 

grant the petition and vacate the death sentence in this 

case. 

11 

For the third time, this Court disregards Warren 

McCleskey's constitutional claims. In 1986, McCleskey, 

 



   
StF gd 91 eid SUPREME LLURI uF US Foes 

an Afro-American defendant, presented uncontroverted 

evidence that Georgia murder defendants with white 

victims were more than four times as likely to receive 

the death sentence as were defendants with Afro-American 

victims. Despite such clear and convincing evidence of 

irrationality in sentencing =-- irrationality we have 

consistently condemned in our Elghth Amendment 

jurisprudence -- the Court somehow rejected McCleskey's 

claim and upheld the constitutionality of Georgia's death 

penalty. See McCleskey v. Kemp, 481 U.S. 279 (1987). 

since then, the factual record has continued to show that 

the death penalty is not and cannot be administered 

fairly: white lives are routinely valued more than Afro- 

American lives. y : 

Last Term, the Court not only discounted Warren 

McCleskey's constitutional claim but sharply limited the 

opportunity of criminal defendants, even those on death 

row, to obtain federal habeas review. See McCleskey Vv. 

2ant, 111 8S. Ct. 1454 (1991). In radically redefining 

the content of the "abuse of the writ" doctrine, the 

court repudiated a long line of judicial decisions and 

unconscionably denied defendants such as McCleskey the 

judicial protections the Constitution requires. The 

Court, in essence, valued finality over justice. 

Now, in the final hours of his life, Warren 

McCleskey alleges that he was denied an impartial 

clemency hearing because the Attorney General threatened 

 



   

  

oEP 2d 'Yl getdy SURKEME LOUK ub Us -., 

to "wage a full scale campaign to overhaul the pardons 

and paroles board" if the Board granted relief. 

McCleskey also alleges that to counteract this assault, 

the Board's chairman announced, even before the hearing, 

that there would be "no change" in McCleskey's sentence. 

In refusing to grant a stay to review fully McCleskey's 

claims, the Court values expediency over human life. 

Repeatedly denying Warren McCleskey his 

constitutional rights is unacceptable. Executing him is 

inexcusable. 

Justice Blackmun and Justice Stevens would grant the 

application for stay. 

 



  

    y 
wo lee. SEP 2d ’91 g2id¢ SUPREME COUKL OF US P.l- 

ORDER LIST 

TUESDAY, SEPTEMBER 24, 1991 

ORDER IN PENDING CASE 

A-227 WARREN McCLESKEY V., MICHAEL BOWERS, ATTORNEY GENERAL OF 

GEORGIA, ET AL. 

The application for stay of execution of sentence of 

death scheduled for September 24, 1991 to allow the 

filing of a petition for a writ of certiorari to 

the Superior Court of Butts County, Georgia 

and/or the United States Court of Appeals for the 

Eleventh Circuit, presented to Justice Kennedy and by him 

referred to the Court, is denied. 

Justice Marshall dissenting: 

I 

Adhering to my view that the death penalty is in all 

circumstances cruel and unusual punishment prohibited by 

the Eighth and Fourteenth Amendments, Gregg V. Georyla, 

428 U.S. 153, 231 (1976), I would grant the application 

for stay of execution in order to give the applicant time 

to file a petition for a writ of certiorari, and would 

grant the petition and vacate the death sentence in this 

case. 

II 

For the third time, this Court disregards Warren 

McCleskey's constitutional claims. In 13986, McCleskey, 

 



   

  

, SkP 2d ’9l gid SUPREME LWURI UF Us Hogs d 

an Afro-American defendant, presented ancontzoverted 

evidence that Georgia murder defendants with white 

victims were more than four times as likely to receive 

the death sentence as were defendants with Afro-American 

victims. Despite such clear and convincing evidence of 

irrationality in sentencing =-- irrationality we have 

consistently condemned in our Elghth Amendment 

jurisprudence ~~ the Court somehow rejected McCleskey's 

claim and upheld the constitutionality of Georgia's death 

penalty. See McCleskey Vv. Kemp, 481 U.S. 279 (1987). 

since then, the factual record has continued to show that 

the death penalty is not and cannot be administered 

fairly: white lives are routinely valued more than Afro- 

American lives. ,. ; 

Last Term, the Court not only discounted Warren 

McCleskey's constitutional claim but sharply limited the 

opportunity of criminal defendants, even those on death 

row, to obtain federal habeas review, See McCleskey V. 

2ant, 111 S. Ct. 1454 (1991). In radically redefining 

the ‘contant of the "abuse of the writ" doctrine, the 

Court repudiated a long line of judicial decisions and 

unconscionably denied defendants such as McCleskey the 

judicial protections the Constitution requires. The 

Court, in essence, valued finality over justice. 

Now, in the final hours of his life, Warren 

McCleskey alleges that he was denied an impartial 

clemency hearing because the Attorney General threatened 

 



   
   ( 

«i aepP 2d "Yl geidy SUPREME LORI UF US Foo a 

to "wage a full scale campaign to overhaul the pardons 

and paroles board" if the Board granted relief. 

McCleskey also alleges that to counteract this assault, 

the Board's chairman announced, even before the hearing, 

that there would be "no change" in McCleskey's sentence. 

In refusing to grant a stay to review fully McCleskey's 

claims, the Court values expediency over human life, 

Repeatedly denying Warren McCleskey his 

constitutional rights is unacceptable. Executing him is 

inexcusable. 

Justice Blackmun and Justice Stevens would grant the 

application for stay.