Brief for Respondent

    sl Mc Ulpskery (02 } 1 SEP No. X9-7024 : 6:4 Ee500nd (Zant) Jul. jo, 190 

   



No. 89-7024 
  

  

In The 

Supreme Court of the United States 
October Term, 1989 
  

aE 
Petitioner, 

| WALTER D. ZANT, WARDEN, 

: Respandent 

  

On Writ Of Certiorari To The United States 
~ Court Of Appeals For The Eleventh Circuit 

BB. 
v   

BRIEF FOR THE RESPONDENT | 
BE 

, 5 
  

~ Mary Beri WESTMORELAND 
~~ Senior Assistant 
Attorney General Pai 
Counsel of Record for 

Respondent a 

ye MicHAEL J. Bowers ; 
oes Attorney General 

3 WILLIAM B. Hui, Ie. ies 

| TL Deputy Attorney General ~~. © 

Please serve: lh oun BOLEYN | 
: ~ Senior Assistant 

: Mary Ber WestonsLano. 
132 State Judicial Bldg. § Aftormey General 
40 Capitol Square, SW. a ey 
Atlanta, a 30334 

RIE os 636: 8349: 

  

= = i : ~ COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
NE OR'CALL COLLECT tn) Sia 21 =  





QUESTIONS PRESENTED 

1. 

Must the state demonstrate that a claim was deliber- 

ately abandoned in an earlier petition for a writ of habeas 
corpus in order to establish that inclusion of that claim in 

a subsequent habeas petition constitutes abuse of the 

writ? 

2. 

Did Petitioner abuse the writ by failing to pursue in 

his first federal habeas corpus petition a claim raised in 

his first state habeas corpus proceeding, particularly 

when counsel acknowledged he made a specific decision 
not to raise the issue in the first federal habeas corpus 

proceeding? 

3. 

Did the Eleventh Circuit Court of Appeals properly 

conduct a harmless error analysis and correctly find that 

any alleged constitutional violation was harmless beyond 

a reasonable doubt? 

4. 

Did the district court err both in finding a Massiah 

violation based on clearly erroneous factual findings and 

in failing to grant Respondent’s motion for relief from 

judgment based on the subsequent availability of the 

testimony of Offie Evans?   

  

 



    

ii 

TABLE OF CONTENTS 

QUESTIONS PRESENTED 

STATEMENT OF THE CASE 

STATEMENT OF THE FACTS © © © 6 0 8 06 0 0 0 0 0 0 06 2 0 0 0 0 0 0 0 

a) The Commission of the Crime .............. 

(b) The Availability of the Statement of Offie 
then. Duk Caneel Sal SEE IES I eh EE 

(c) The Evidence Concerning the Massiah Claim... 

SUMMARY OF THE ARGUMENT 

ARGUMENT ..... coh csi vinssevss ss rndonsssninsiss 

I. THE PETITIONER BEARS THE BURDEN OF 
PROVING HE HAS NOT ABUSED THE 
WRIT BY THE INCLUSION OF A CLAIM IN 
A SUBSEQUENT FEDERAL HABEAS PETI- 
TION THAT WAS OMITTED FROM THE 
FIRST FEDERAL HABEAS PETITION...... 

II. THE ELEVENTH CIRCUIT COURT OF 
APPEALS PROPERLY FOUND THAT PETI- 
TIONER HAD ABUSED THE WRIT BY 
FAILING TO RAISE A MASSIAH CLAIM IN 
HIS FIRST FEDERAL HABEAS CORPUS 
PETITION |... ....oii vcr asnsvciensinsnnnes 

III. THE ELEVENTH CIRCUIT COURT OF 
APPEALS PROPERLY FOUND ANY 
ALLEGED MASSIAH VIOLATION TO BE 
HARMLESS 0 0 0 8 080 8 BBS we eee esis. ee ee 0 

15 

19 

19 

25



iii 

TABLE OF CONTENTS - Continued 
Page 

IV. THE DISTRICT COURT ERRED IN FIND- 
ING A VIOLATION OF MASSIAH V. 
UNITED STATES AND THE FINDING BY 
THE DISTRICT COURT TO THIS EFFECT IS 
CLEARLY ERRONEOUS IN LIGHT OF THE 
OVERWHELMING EVIDENCE TO THE 
CONTRARY. .....c...circievunrnsnsrrnnres 42 

V. THE DISTRICT COURT ABUSED ITS DISCRE- 
TION IN DENYING RESPONDENT'S 
MOTION FOR RELIEF FROM JUDGMENT... 44 

CONCLUSION 505 5 555 tr 0+ Busi 0 idinis # 380.0 8050 pai ¥igia pie + 3 47 

  
  

 



    

iv 

TABLE OF AUTHORITIES 

Cases CITED 

Amadeo v. Zant, 486 US. 214 (1988) .............. 37, 42 

Anderson v. Bessemer City, 470 U.S. 564 (1985) ....42, 43 

Antone v. Dugger, 465 U.S. 200 (1984) ............... 26 

Booker v. Wainwright, 764 F.2d 1371 (11th Cir. 1985) .... 23 

Bose Corp. v. Consumers Union of United States, Inc., 
466 ULS 485 (1984) i... /i vi rs a Se Ye ve 27 

Chapman v. California, 386 U.S. 18 (1967) ............ 39 

Cuyler v. Sullivan, 446 U.S. 335 (1980) ............... 27 

Depree v. Newsome, No. 1:85-CV-3733-RLV (N.D. 
Ga. Uy 10, 1990) .......ccvcnnrvruiraninnnnansiose 43 

Engle v. Isaac, 456 U.S. 107 (1982)........cccceevvsns 20 

Fay v. Noig, 372 US. 391 (1963) .....c-rsunsrrsss 22, 24 

Fiske v. Kansas, 274 US. 380 (1927). .......v.... i000 27 

Giglio v. United States, 405 U.S. 150 (1972)............ 3 

Gullett v. Armontrout, 894 F.2d 308 (8th Cir. 1990) .... 24 

Johnson w. Zerbst, 304 U.S. 458 (1938)............. 22,25 

Klapprott v. United States, 335 U.S. 601 (1949)........ 46 

Liljeberg v. Health Services Acquisition Corp., 486 
US 847211988)... .......... 0 ie scsi aSissssn.- 46 

Massiah v. United States, 377 U.S. 201 (1964)... .. passim 

McCleskey v. Kemp, 481 US. 279 (1987) ...v.0nvnvnpsese 4 

   



Vv 

TABLE OF AUTHORITIES - Continued 
Page(s) 

McCleskey v. Kemp, 482 U.S. 920-1987)... csv. covienash 3 

McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985) (en 
DINE) «iis cnhosvne es vinmrnesssr Fe pppmpi ts vs vn £0 Hr 2 

McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146, cert. 
denied, 449 U.S. 391 (1980). ..........covicisens 2 

McCleskey v. Zonk, ___ US. __, 110 8.Ci. 2585 
1990) i. «cee ccner cin nin ane Sih sai) oe oh 4, 19 

McCleskey v. Zant, 580 F. Supp. 338 (N.D.Ga. 1984) ..... 2 

McCleskey v. Zant, 890 F.2d 342 (11th Cir. 1989) .. .4, 40 

Miller v. Fenion, 474 US. 104 (1985). ......... cv... 27 

Nopue v.. {llinois, 360 U.S. 264 (1959). ...... .cueemsnsss 38 

Neil v, Biggers, 403 US. 188 (1972) ....... cccvvvovt, 37 

Price v. Johnston, 334 U.S. 266. (1948). ...c0vo nerves 22 

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ....... 27 

Salinger v. Loisel, 265 U.S. 224 (1928). ...ccncrivnvsne 19 

Sanders v. United Siates, 373 U.S. 1 (1963) .....,. passim 

Satterwhite v. Texas, 486 U.S. 249 (1988).............. 41 

Strickland v. Washington, 466 U.S. 668 (1984)......... 27 

Sullivan v. Wainwright, 464 US. 109................. 20 

United States v. Morrison, 449 U.S. 361 (1981)........ 39 

United States v. United States Gypsum Co., 333 U.S. 
B6AI0AR). I. Fo ST 42 

Wong Doo v. United States, 265 U.S. 239 (1924)....... 20 

Woodard v. Huichins, 464 U.S. 377 (1984)............. 26 

 



    

vi 

TABLE OF AUTHORITIES - Continued 
Page(s) 

Statutes AND RuLes CITED 

OCGA. § 50-18-70... 00 vcr ee «iu svwinnis sw smdiiny ses 8 

2BUS.C. §82244b) ..... cco veri as ines srnsne 21,26 

2B USC. 8 22848(d) .. rire rhs pr nr ne rns 27 

Fed. R. Civ. P..52a) ... .. cosrsnrrvvnnssmpr sons 27, 39, 42 

Fed. R. Civ. P. 60(D) .......connininnsrness 4, 44, 45, 46 

Rule 9(b), Rules Governing Section 2254 Cases 
A ie han ty tt dE AE tA AE SSL 21, 22,23, 26 

   



No. 89-7024 

a 
v 

In The 

Supreme Court of the United States 
October Term, 1989 

  

  

WARREN McCLESKEY, 

Petitioner, 

WALTER D. ZANT, WARDEN, 

Respondent. 

ob. 
v   

On Writ Of Certiorari To The United States 
Court Of Appeals For The Eleventh Circuit 

  
o. 
v 

BRIEF FOR THE RESPONDENT 

  

STATEMENT OF THE CASE 

In addition to the statement of the case set forth by 

the Petitioner, Respondent would add the following: Peti- 

tioner, Warren McCleskey, David Burney, Bernard 

Depree, and Ben Wright, Jr, were indicted on June 13, 

1978, for murder and two counts of armed robbery. The 

Petitioner was tried separately beginning on October 9, 

1978, and was found guilty on all three counts, and was 

sentenced to the death penalty and two consecutive life 

sentences. Petitioner's convictions and sentences were 

  

  

            
 



    

affirmed on direct appeal. McCleskey v. State, 245 Ga. 108, 

263 S.E.2d 146, cert. denied, 449 U.S. 891 (1980). 

In the first state habeas petition filed by Robert 

Stroup on January 5, 1981, the Petitioner included a chal- 

lenge to the alleged failure to disclose an “arrangement” 

with “a police agent or informer” (Offie Evans) and the 

alleged deliberate withholding by the prosecution of the 

statement made by the Petitioner to Evans. (J.A. 20-21). 
Petitioner subsequently filed an amendment to that state 

petition in which Petitioner challenged the introduction 

into evidence at trial of his statements to “an informer” 

and specifically asserted that the statements were taken 

in violation of the Sixth Amendment. (J.A. 22). 

On December 30, 1981, the Petitioner filed a petition 

for habeas corpus relief in the United States District 

Court for the Northern District of Georgia. Among other 

allegations the Petitioner challenged the failure to dis- 

close an “understanding” with witness Evans; however, 

Petitioner did not assert a Sixth Amendment violation in 

relation to the use at trial of the testimony of Offie Evans. 

After extensive evidentiary hearings were held 

before the district court, on February 1, 1984, the court 

granted habeas corpus relief based on the allegation of an 

undisclosed deal with Offie Evans. McCleskey v. Zant, 580 

E. Supp. 338 (N.D.Ga. 1984). 

On January 29, 1985, the Eleventh Circuit Court of 

Appeals sitting en banc issued an opinion which affirmed 

all convictions and sentences, particularly reversing the 

district court on the Giglio claim as to the testimony of 

Offie Evans. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 

1985) (en banc). 

   



The Petitioner then filed a petition for a writ of 

certiorari in this Court. In that petition, the Petitioner 
asserted that the death penalty was discriminatorily 
applied, and that there was a violation of Giglio v. United 

States, 405 U.S. 150 (1972), based upon the testimony of 

Offie Evans. This Court subsequently granted the petition 
for a writ of certiorari limited to the consideration of the 

application of the death penalty. On April 22, 1987, the 

Court affirmed the denial of habeas corpus relief. 

McCleskey v. Kemp, 481 U.S. 279 (1987). On or about May 

16, 1987, Petitioner filed a petition for rehearing in this 

Court. In that petition, Petitioner reasserted his claim 

relating to a violation of Giglio v. United States. On June 8, 

1987, this Court denied the petition for rehearing. 

McCleskey v. Kemp, 482 U.S. 920 (1987). 

On June 8, 1987, a successive state habeas corpus 

petition was filed raising several claims including the 

state’s alleged failure to disclose impeaching evidence 

(the alleged “deal” with Offie Evans) at trial. On June 22, 

1987, Petitioner filed an amendment to the petition rai- 

sing two allegations, that is, that Offie Evans was acting 

as an agent for the state at the time the Petitioner made 

statements to Evans and that the prosecutor failed to 

correct alleged misleading testimony by Evans. Relief 

was denied on July 1, 1987. 

On July 7, 1987, Petitioner filed a second federal 

habeas corpus petition in the United States District Court 

for the Northern District of Georgia. After hearings were 

held by the district court on July 8, 1987, July 9, 1987, and 

August 10, 1987, the district court entered an order on 

December 23, 1987, granting habeas corpus relief only as 

to Petitioner’s murder conviction and sentence based 

  

  

  

 



    

upon the finding of a violation of Massiah v. United States, 

377 U.S. 201 (1964). (J.A. 63). 

On May 6, 1988, Respondent filed a motion for relief 

from judgment under Fed. R. Civ. P. 60(b) in the district 

court. Pursuant to the June 17, 1988, order of the district 

court, both parties conducted discovery including taking 

the deposition of Offie Evans on July 13, 1988. On January 

10, 1989, the district court denied the motion for relief 

from judgment. (J.A. 102). 

A panel of the Eleventh Circuit Court of Appeals 

entered an opinion on November 22, 1989, amended on 

December 13, 1989, specifically reversing the finding of 

the district court and concluding that the district court 

abused its discretion by failing to find an abuse of the 

writ and that the Petitioner had abused the writ by delib- 

erately abandoning the Sixth Amendment Massigh claim 

at the time of the first federal petition and that any error 

based on an alleged Massigh violation was harmless. 

McCleskey v. Zant, 890 F.2d 342 (11th Cir. 1989). (J.A. 112). 
The circuit court did not rule on Respondent’s assertions 

that the district court’s finding of a Massiah violation was 
based on clearly erroneous factual findings and that the 

district court erred in denying Respondent’s motion for 

relief from judgment. Rehearing and rehearing en banc 

were denied on February 6, 1990. 

Petitioner then filed a petition for a writ of certiorari 

in this Court which was granted on June 4, 1990, with a 

question being added by the Court. McCleskey v. Zant, __ 

U.S" _“110'S.Ct. 2585 (1990)."(J.A. 136). 

4 

  

   



STATEMENT OF FACTS 

(a) The Commission of the Crime 

The evidence presented at Petitioner’s trial showed 

that on May 13, 1978, he and three coindictees committed 

an armed robbery at the Dixie Furniture Store in Atlanta, 

Georgia. The evidence showed that the Petitioner entered 

the front of the store while his three coindictees entered 

the back. Petitioner was positively identified at trial as 

one of the participants in the robbery. (T. 231-232, 242, 

250). 

While Depree, Burney and Wright, the coindictees, 

held several employees in the back of the store, the 

Petitioner was in front. Employee Classie Barnwell had 

activated a silent alarm, resulting in the arrival of Officer 

Frank Schlatt. Shortly after Schlatt entered the front of the 

store, he was shot. After hearing two shots, Wright 

observed the Petitioner running out of the front of the 

store. Wright, Depree and Burney ran out of the back. 

When they all arrived at the car, Petitioner stated that he 

had shot the police officer. (T. 658-659). 

Petitioner testified in his own behalf at trial and 

stated that he knew Ben Wright and the other coindictees, 

but that he had not participated in the robbery. Petitioner 

relied on an alibi defense. 

Petitioner was also identified at trial by two wit- 

nesses who had observed him take part in a prior similar 

robbery. Mr. Paul David Ross, manager of the Red Dot 

Grocery Store, also testified that during the course of the 

Red Dot robbery, his nickel-plated .38 revolver was taken.  



    

On its rebuttal case, the state presented the testimony 
of Arthur Keissling, who identified the Petitioner as a 

participant in the robbery of Dot’s Produce on March 28, 

1978. (T. 887-889, 896). 

The state also presented the testimony of Offie Gene 

Evans in rebuttal. Mr. Evans had been incarcerated in the 

Fulton County Jail in a cell located near the Petitioner 

and Bernard Depree. Evans testified that the Petitioner 

had talked about the robbery while incarcerated and had 

admitted shooting Officer Schlatt. (T. 869-870). Evans also 

testified that the Petitioner said he would have shot his 
way out even if there had been a dozen policemen. 

(b) The Availability of the Statement of Offie Evans 

The written statement of Offie Evans was not 

obtained by Petitioner until July, 1987. Even though the 

lower courts found counsel was “unaware” of the state- 

ment prior to that time, the record establishes counsel 

should have been aware of it and that the state did not 

“conceal” its existence. 

The trial court conducted an in camera inspection of 

certain specified material noting in its order, “The court 

finds that although the documents might become material 

for rebuttal at trial, they are not now subject to discov- 
ery.” (T.R. 46). During cross-examination of the Petitioner 

at trial, counsel for the Petitioner objected to cross-exam- 

ination by the assistant district attorney indicating that he 

had asked for all statements by the Petitioner. The trial 

court stated, “He has a statement which was furnished to 

the Court but it doesn’t help your client.” (T. 830). 

   



At the first state habeas corpus hearing trial counsel, 

John Turner, testified that the assistant district attorney, 

Russell Parker, told him there were two items not 

included in the file shown to Turner: the grand jury 

testimony of a witness and a statement of an unnamed 

individual. (S.H.T. 77).1 

The deposition of the assistant district attorney, 

Russell Parker, was taken by Mr. Robert Stroup, counsel 

for the Petitioner, on February 16, 1981. During that 

deposition, Mr. Parker told Mr. Stroup that he “had a file 

I made available to all the defense counsel in this case.” Id. 
(Emphasis added). Thus, the file identified at the deposi- 

tion and requested by Mr. Stroup was the file “that was 

made available back at pre-trial and trial.” Id. at 5. 

(Emphasis added). At no time is there any indication that 
this file included the matter which was the subject of the 

in camera inspection. This was the file given to habeas 

counsel subsequent to the deposition. 

Additionally, during the deposition, Mr. Stroup, 

counsel for Petitioner, referred to a “statement” from 

Offie Evans. In response to a question concerning the 
statement, Mr. Parker clarified stating, “When you refer 

to a statement, Offie Evans gave his statement but it was 

not introduced at the trial. It was part of that matter 

which was made in camera inspection (sic) by the Judge 
prior to trial.” Id. at 8. 

  

1 The transcript of the first state habeas corpus proceeding 
was included as an exhibit in the first federal habeas corpus 
action. The district court took judicial notice of those records.  



    

Petitioner obtained a copy of the statement, appar- 

ently from the Atlanta Police Department's file, pursuant 

to a request made under the Georgia Open Records Act, 

O.C.G.A. § 50-18-70 et seq., for the first time in 1987. 

(c) The Evidence Concerning the Massiah Claim. 

Petitioner’s statement of facts relies exclusively on 

the factual findings made by the district court which 

Respondent has continually asserted are clearly erro- 

neous. In order to have a more complete view of the 

Respondent’s position on the so-called Massiah violation, 

Respondent would note the following additional informa- 

tion contained in the record. 

The evidence is fairly consistent that Offie Evans was 

arrested on or about July 3, 1978. Evans met with Russell 

Parker and two detectives from the Atlanta Police 

Department at the Fulton County Jail on July 12, 1978. 
The main facts in dispute are whether Evans was initially 

placed in the cell next to Petitioner or whether he was 

subsequently moved there and whether Evans was 

instructed to overhear conversations. 

All state’s witnesses testifying before the district 

court consistently denied that there was any request to 

move Offie Evans, that Offie Evans was ever instructed to 

obtain any statements from the Petitioner or to overhear 

any conversations of the Petitioner. Due to the belated 

presentation of evidence on this claim, the state was 

unable to present any documentary evidence on the 

actual location of Mr. Evans in the jail on any particular 

date as the records from 1978 were destroyed in the 
regular course of business. The record is replete with 

   



references, however, revealing that Mr. Evans was placed 

in the cell next to Petitioner on the first day that Mr. 

Evans entered the Fulton County Jail 

At trial Carter Hamilton, a floor deputy on the first 

floor of the Fulton County Jail, testified that in July of 
1978, the Petitioner was in jail cell 1 North 15. (T. 860). 

Offie Evans also testified at the trial that Petitioner was in 

the cell next to him at the Fulton County Jail. Evans 
testified that when he came into the jail he was placed in 

solitary confinement “straight from the street.” (T. 873). 

When Evans was asked when he was moved, he 

responded that he was moved on August 14, 1978. (T. 

881). 

At the original state habeas corpus hearing Evans 

testified that he was placed in solitary confinement upon 

being taken to the Fulton County Jail and remained there 
“a little bit better than a month.” Evans testified that 

while he was in solitary confinement he was adjacent to 

the cell of the Petitioner. (5.H.T. 116-117). 

Russell Parker, the assistant district attorney who 

tried the case, testified at the original state habeas corpus 

proceedings that the first time he found out about Evans’ 

testimony was from either Detectives Jowers or Harris 

who had apparently been contacted by Deputy Hamilton. 

Mr. Parker recalled specifically that he did talk to Evans 

at some time and talked to Evans at the Atlanta Police 

Department as well. Mr. Parker did not know Evans prior 

to that time and did not know of any instances when 
Evans had worked for the police department as an 
informant prior to the conversations being overheard. 

(Parker deposition at 15). 

 



  

10 

In addition to the above, the written statement of 

Offie Evans itself states, “I'm in the Fulton County Jail 

cell #1 North 14 where I have been since July 3, 1978 for 

escape.” Thus, Mr. Evans himself in that statement indi- 

cates that he was in the cell next to the Petitioner on the 

first day Evans came to the Fulton County Jail. 

The testimony of Mr. Parker before the district court 

establishes, as did his earlier testimony, that he had never 

known Evans prior to July 12, 1978, when he received 

information that an inmate at the jail had information 

about the case. (R4-130-1). Mr. Parker did not ask anyone 
to move Evans or ask Evans to overhear any conversa- 

tions and never suggested that Evans do such. (R6-11). 

Mr. Parker testified that he did not ask Carter Hamilton 

or Ulysses Worthy to move Evans and it never came to 

his attention that any such request had been made. 

Detective Welcome Harris testified that his first con- 

tact with Offie Evans was on July 12, 1987. He recalled 

going to the jail on that day with Russell Parker and with 

another detective that he thought was Detective Dorsey. 

Detective Harris based this recollection primarily on the 

notes of Mr. Parker. Detective Harris volunteered that he 

thought the interview occurred in Captain Worthy’s 

office, but he was sure Worthy was not present. (R4-196). 

Detective Harris did not know that Evans had been 
an informant prior to that time. His next encounter with 

Evans was on August 1, 1978. Detective Harris did not 

hear anyone tell Evans to keep his eyes and ears open 

and he did not tell Evans to do so. (R5-24). He was 

emphatic that he never asked anyone to move Evans, 

never asked Evans to overhear any conversations and 

   



11 

never suggested that Evans overhear conversations. He 

did not even recall Mr. Worthy being in the room during 

the interview, much less anyone making any such 

requests of Mr. Worthy. 

Carter Hamilton testified before the district court and 

stated that Evans came in on an escape charge and would 

have been put in isolation as an escape risk. (R4-177). He 
did not have any conversation with Evans regarding the 

murder prior to July 11, 1978, and had no conversations 

with any detectives regarding the case prior to that date. 

He knew of no one that implied to Evans that Evans 
should listen to the Petitioner or talk with the Petitioner. 

Hamilton recalled Detective Harris and Russell Par- 

ker coming to the jail along with another officer on July 

12, 1978. (R4-182). Hamilton stayed in the room, but did 

not have a recollection specifically as to who the other 

detective was, although it could have been Detective 

Dorsey. He had no other specific conversations about the 

case with Evans during July of 1978. 

To Hamilton's knowledge the first time anyone came 

to the jail to talk with Evans about the case was on July 

12, 1978. Hamilton had no knowledge of Evans being 

moved and he recalled Evans being in isolation when 
Evans first came to the Fulton County Jail. Hamilton 

testified positively that no one asked to have Evans 

moved so that he could overhear conversations of the 

Petitioner, that Hamilton personally never asked Worthy 

to move Evans and that he did not tell Worthy that 

anyone wanted Evans moved. Further, during the inter- 

view on July 12, 1978, no one asked Evans to overhear 

conversations. (R6-76). 

 



  
  

12 

Officer Sydney Dorsey acknowledged that he knew 

Evans prior to this case and that Evans on occasion had 

been cooperative, but he had never gotten any informa- 

tion from Evans where Evans ended up testifying. 

(R5-54). He did not recall going to see Evans at the Fulton 

County Jail at the time of this case or at any other time 

and did not recall attending a meeting with Parker and 

Harris and Evans. He acknowledged that it was possible 

he had met with Evans on occasions during the investiga- 

tion, but testified that had he made any promises to 
Evans, he would have had a specific recollection of that 

fact. Id. at 65. Detective Dorsey testified positively that he 
did not do anything directly or indirectly to encourage 
Evans to obtain evidence from the Petitioner and had no 

knowledge of anything of that sort occurring. He did not 

direct Evans to engage in conversations and never heard 

anyone else make such a request. He was positive that he 

made no request that Evans be moved and he did not ask 

Carter Hamilton to make such a request. (R6-81). 

The testimony of Ulysses Worthy before the district 

court is so inconsistent, confusing and incoherent that 

one cannot discern readily any specific facts. Mr. Worthy 
initially testified that he recalled the murder of Officer 

Schlatt being brought up between Dorsey and Evans, but 
that he was not a participant in the conversation and he 
did not recall Dorsey asking Evans to listen for state- 
ments by the Petitioner. (R5-148). Subsequently, Mr. Wor- 

thy also testified that he did not recall Mr. Dorsey asking 
Evans to listen to the conversations of the prisoners. 

(R5-148). When asked whether he recalled if Evans was 
asked to engage in conversations, Worthy responded, 

“Seems I recall something being said to that effect to Mr. 

   



13 

Evans . . . but I'm not sure if it came from Mr. — from 

Detective Dorsey or who.” Id. at 149. He testified that he 

was not sure and was not sure that Evans agreed to the 

arrangement. 

Worthy recalled Russell Parker and Detective Harris 

coming out to interview Evans, but was not certain 

whether Detective Dorsey was present on that occasion. 

Mr. Worthy was finally asked if he recalled a request 

being made that “someone” be placed in a cell next to 

“someone else” so that he could overhear conversations 

and Worthy responded that he did. (R5-153). Mr. Worthy 
did not recall who made the request and thought Evans 

was placed in a cell next to the Petitioner. He did not 

recall when it was that he might have been asked to move 
Evans and he did not know of any conversations that 

Evans had overheard. Id. at 156. 

At the second hearing before the district court, Mr. 

Worthy testified that the first time he recalled Evans ever 

being brought to his attention was when one of the depu- 

ties informed him that Evans had information to pass on 

to the authorities. Mr. Worthy was positive that Deputy 
Hamilton brought Evans to his attention. (R6-14). Worthy 

was certain that this was his first meeting with Offie 

Evans. Mr. Worthy recalled that investigators came to talk 

to Evans within a few days and to his knowledge this was 

the first time anyone had come to the jail to talk to Evans 
regarding the Schlatt murder. Id. at 17. Worthy specifi- 

cally testified that after the meeting none of the investiga- 

tors asked him to do anything. 

Worthy subsequently testified that it was Hamilton 

that allegedly asked him to move Evans, but he was 

 



  

14 

uncertain as to who asked Hamilton to request that the 

move be made. Mr. Worthy emphasized that the first time 

he was ever asked to move Evans was on the day the 

officers came out to the jail with Mr. Parker to talk with 

Evans and that this was the only time he was ever asked 

to make such a move. Mr. Worthy contradicted all other 
witnesses and testified that Carter Hamilton asked that 

Evans be placed in a cell near the Petitioner. Mr. Worthy 

stated that he did not know for a fact that Evans was ever 

actually moved and he did not hear anyone ask Evans to 

listen to conversations. He was positive neither Harris, 

Dorsey, Jowers, nor Parker asked him to move Evans so 

that he could overhear conversations. Id. at 24. On this 

occasion, Mr. Worthy testified that the meeting with Dor- 

sey was at the same time the other officers were there. 

Mr. Worthy later testified that he did not recall if Dorsey 
was present with Mr. Parker. Mr. Worthy was clear that 

he was not present at the meetings, that he simply under- 

stood the officers came back several times. 

Mr. Worthy reiterated that the only encounter he had 
in which he was asked that Evans be moved was after the 

interview occurred when Dorsey and several other offi- 
cers were there. He stated that Hamilton was the first one 

to ask that Evans be moved and reiterated that there was 

no meeting prior to the occasion when Parker and the 

officers came to the jail when anyone had been there to 

talk to Evans about the Schlatt murder. After the district 

court specifically reminded Mr. Worthy of the importance 
of the case, Mr. Worthy testified that there may have been 

other meetings when he was not present and did not 

recall being told of any other meetings. He again stated 

that when he was asked to place the Petitioner in a cell 

   



15 

was on the day when Mr. Parker was at the jail. He 

testified he was first approached by Carter Hamilton and 

did not know who asked Carter Hamilton to make the 

request. Mr. Worthy testified on this occasion that “the 

officer” did not directly ask him to make any move. 

(R6-65-6). 

It should be noted that the district court for the first 

time in its final order determined that Evans had infor- 

mation not known to the general public. Respondent 

knows of no proof in the record that the facts set forth in 

Evans’ statement were unknown to the general public nor 

were there facts in the statement that could not have been 

discovered by Evans through conversations with other 

inmates at the jail. 

Further facts regarding this issue will be set forth as 
necessary during the subsequent portions of the brief. 

o. 
v   

SUMMARY OF THE ARGUMENT 

In the context of an allegation of abuse of the writ, 

the state only bears the burden of pleading abuse. Once it 
has been pled, a petitioner always has the burden of 

proving that he has not abused the writ. Neither the 
applicable statutes nor the case law of this Court specifi- 

cally limits the concept of abuse of the writ, but rather, it 

is left to the district and circuit courts to examine the 

cases as they arise to determine whether the facts of an 

individual case are sufficient to excuse the conduct in 

question. The standard of intentional abandonment, for- 

mally embodying the concept of a knowing and intel- 

ligent waiver with a knowledge of all pertinent facts, 

    

 



  

16 

does not apply to an abuse of the writ case. The require- 

ment that a petitioner actually make that type of waiver 

has been replaced in most other contexts with a more 

objective standard and there is no reason not to make that 

same change in the abuse of the writ context. This will 

facilitate the purpose of the abuse of the writ doctrine so 

as to eliminate needless piecemeal litigation and would 

also assist in eliminating the delay inherent in capital 

cases. 

The Eleventh Circuit Court of Appeals properly ruled 

that Petitioner had failed to prove he had not abused the 

writ. In determining that there was an abuse of the writ 

that Court did not create a new standard and did not 
ignore the jurisprudence of this Court. Rather, the Court 

examined the examples set forth in Sanders v. United 

States, 373 U.S. 1 (1963), and correctly concluded under 

the facts of this case that the district court erred in 
finding Petitioner had not intentionally abandoned his 

Massiah claim. When Petitioner acknowledged that he 

was aware of the claim and counsel even raised it in the 

first state habeas corpus proceeding but chose not to raise 

it in the first federal habeas corpus proceeding, this is a 
clear abandonment in the context of abuse of the writ and 

to rule otherwise would result in needless piecemeal 

litigation. 

The Eleventh Circuit Court of Appeals in ruling on 
the abuse of the writ question also did not ignore factual 

findings made by the district court. Most of the findings 

cited to by the Petitioner are actually either questions of 

law or mixed questions of fact and law to which the 

clearly erroneous rule does not apply. The circuit court 
properly gave deference to all true factual findings but 

   



17 

disagreed with the ultimate legal conclusions reached by 
the district court. As noted previously, the circuit court 
correctly concluded that the issue in question was inten- 

tionally abandoned. Furthermore, the circuit court also 

examined counsel's actions in investigating the Massiah 

claim and found that the investigation simply was not 

adequate to excuse the abusive conduct. When counsel 

failed to interview the key personnel involved with Offie 
Evans both at the jail and during the investigation of the 

murder case and failed to attempt to obtain the jail 

records, even though he obtained records from the 

Atlanta Police Department and the prosecutor’s office for 
purposes of proving his discrimination claim in the first 
proceeding, this is clearly insufficient to excuse the fail- 

ure to raise the claim. 

Even if this Court were not to find an abuse of the 
writ or not to find that the issue was intentionally aban- 

doned, any alleged Massiah violation was clearly harm- 

less beyond a reasonable doubt. The findings of the 

district court are not the type of findings to which the 

clearly erroneous rule applies as the district court was 

doing nothing more than examining the state trial tran- 

script and making ultimate legal conclusions as to 

whether the issue was harmless. The question of malice 

was thoroughly proven by all of the other evidence pre- 

sented at trial. The one statement of Mr. Evans regarding 
makeup did not contribute to the verdict and the identi- 

fication of the Petitioner as the triggerman was supported 

by other overwhelming evidence presented at the trial of 
this case. Under the circumstances of this case, if the 

admission of the statement was error, it was clearly harm- 

less beyond a reasonable doubt. 

    

 



  

18 

Respondent has at all times challenged the factual 

findings of the district court as being clearly erroneous. 

Although the Eleventh Circuit Court of Appeals did not 

need to reach this issue, Respondent submits that it is 

clear from a review of the record that the district court’s 

view of the facts pertaining to the Massiah claim is simply 

implausible in light of the entire record in this case. If it is 

concluded that the Massiah issue is not an abuse of the 

writ, it will first be necessary as a threshold matter to rule 

upon the clearly erroneous issue or remand to the Elev- 

enth Circuit Court of Appeals for a ruling upon this issue. 

Particularly, when a district court considering the code- 

fendant’s case has reached the exact opposite factual 

conclusion, Respondent submits that the findings by the 

district court in this regard are clearly erroneous. 

Finally, Respondent also has challenged the district 
court’s denial of Respondent’s motion for relief from 

judgment. Again, prior to a ruling on the merits on the 

Massiah claim, this issue will need to be resolved by this 

Court or on remand to the Eleventh Circuit Court of 

Appeals. Respondent submits there was sufficient evi- 

dence presented to the district court as to the critical 

nature of the testimony of Offie Evans in relation to the 
Massiah claim, his unavailability at the time of the hear- 

ings in the district court and the materiality of his testi- 

mony based upon the deposition subsequently obtained 

from Mr. Evans to justify granting the motion. 

  

é 
4 

 



19 

ARGUMENT 

I. THE PETITIONER BEARS THE BURDEN OF 
PROVING HE HAS NOT ABUSED THE WRIT BY 
THE INCLUSION OF A CLAIM IN A SUBSE- 
QUENT FEDERAL HABEAS PETITION THAT WAS 
OMITTED FROM THE FIRST FEDERAL HABEAS 
PETITION. 

In granting the instant petition for a writ of cer- 

tiorari, this Court added a specific question for the par- 

ties to address which states as follows: 

Must the state demonstrate that a claim was 
deliberately abandoned in an earlier petition for 
a writ of habeas corpus in order to establish an 
inclusion of that claim in a subsequent habeas 
petition constitutes abuse of the writ? 

McCleskey v. Zant, US. ,110 S.Ct. 2585 (1990) J. A. 

136). Respondent asserts the state does not bear any 

burden of proof as to the question of abuse of the writ in 

a habeas corpus action and “intentional abandonment” is 

not the exclusive standard for review of allegations of 

abuse. 

This Court has had numerous occasions to address 

the question of when subsequent applications for habeas 

corpus relief should be reviewed on their merits by the 
federal district courts. As early as 1924, the Court, while 
holding that res judicata would not extend to habeas 

corpus proceedings held, “[I]Jt does not follow that a 

refusal to discharge on one application is without bearing 

or weight when a later application is being considered.” 

Salinger v. Loisel, 265 U.S. 224, 230 (1924). The Court also 

held that when a petitioner had a full opportunity to offer 

proof at a hearing on the first petition, good faith 

     



  

20 

required that he produce that proof at that time and not 

reserve it for a subsequent petition. Wong Doo v. United 

States, 265 U.S. 239, 241 (1924). 

Although this Court had earlier noted that traditional 

notions of finality did not have a particular place in 

habeas corpus, see Sanders v. United States, 373 U.S. 1 

(1963), this Court has more recently acknowledged the 

significant costs associated with habeas corpus in general 

and second petitions in particular. In Engle v. Isaac, 456 

U.S. 107 (1982), the Court noted that the absence of 

finality frustrated the state’s interest in deterrence and 

rehabilitation and that “[l]iberal allowance of the writ, 

moreover, degrades the prominence of the trial itself.” Id. 

at 127. The Court was also concerned that the writ of 

habeas corpus could frequently cost society the right to 

punish admitted offenders. Furthermore, habeas corpus 

petitions, and in particular abusive petitions, place spe- 

cial costs on the federal system and result in increased 
federal intrusion into the state system. In death penalty 

cases in particular, this Court has expressed concern that 

“there must come an end to the process of consideration 

and reconsideration.” Sullivan v. Wainwright, 464 U.S. 109, 

112 (1983). 

Petitioner’s response to this Court's inquiry, as well 

as to the holding of the Eleventh Circuit Court of 

Appeals, seems to assert that legislative history binds this 

Court to a narrow view as to what conduct constitutes 

abuse of the writ. A review of this Court’s holdings and 

the pertinent legislative history shows, rather, that habeas 

corpus and the particular concept of abuse of the writ 
have been fluid concepts evolving through the Court's 

litigation of particular factual situations. Petitioner has 

   



21 

sought to restrict this Court and its interpretation of the 

term “abuse of the writ” which term forms part of 28 

U.S.C. § 2244(b) and Rule 9(b) of the Rules Governing 

Section 2254 Cases. In those enactments, however, Con- 

gress did nothing more than insert the “abuse of the writ” 

terminology to allow the courts the opportunity to 

address the question on a case by case basis and to allow 

the standard to evolve as it became necessary to address 

the question of abuse of the writ in differing factual 

settings. Certainly, in 1976, the problem of abusive peti- 

tions, particularly in the context of death penalty cases, 

was not the same as it is today. In fact, the legislative 

history specifically reflects a concern with abusive peti- 

tions and the everincreasing burden on the federal court 

system. 

Even if Rule 9(b) and 28 U.S.C. § 2244(b) are consid- 

ered to be a direct codification of the standard in Sanders 

with no allowance for a change in terminology, the Peti- 

tioner misreads the essence of the holding in Sanders 

itself. 

In Sanders, the Court focused on the principles of 

equity noting, “A suitor’s conduct in relation to the mat- 

ter at hand may disentitle him to the relief he seeks.” Id. 

The Court specifically then delineated examples of abusive 

conduct, and the clear reading of this portion of the 

Court’s opinion shows that this was not an exhaustive 

list. These examples included, but were not limited to, 

deliberate withholding or abandonment as well as need- 

less piecemeal litigation or collateral proceedings whose 

only purpose is to either vex, harass or delay. Thus, even 

if the rule and statute are deemed to be a direct codifica- 

tion of Sanders, the standard which is codified is itself 

 



  
  

22 

necessarily flexible and subject to interpretation by the 

courts as necessity arises. 

The first prong of the question phrased by this Court 

focuses on the burden of proof. Clearly, since Price v. 

Johnston, 334 U.S. 266 (1948), the state has had the burden 

only of pleading abuse of the writ. Any burden of proof 

necessarily rests with the Petitioner. The Petitioner must 

prove that he has not abused the writ. By disproving 

intentional abandonment, the Petitioner does not neces- 

sarily carry his burden of proof as he must also prove 

that he has not otherwise abused the writ, including that 

he is not guilty of any inexcusable neglect or some other 

type of abuse. Petitioner must show that in spite of his 

conduct, there is some justifiable reason for having omit- 

ted a claim. 

The second aspect to this Court’s question focuses on 

whether, in order for conduct to be abusive, there must be 

an “intentional abandonment” as contemplated in Fay v. 

Noia, 372 U.S 391 (1963). Respondent submits that neither 

Rule 9(b), 28 U.S. § 2244, nor the cases decided by this 

Court requires such a restrictive interpretation of the 

concept of abuse of the writ. Since the time of Fay v. Noia, 

the Court has continually departed from the knowing and 

intelligent waiver standard with respect to proceedings 

occurring subsequent to trial and appeal. Although the 

knowing and intelligent waiver standard of Johnson v. 

Zerbst, 304 U.S. 458 (1938), may be appropriate to the 
question of pretrial waivers of counsel, the standard no 

longer has application to such things as procedural 

defaults occurring in state court proceedings and, by 

analogy, should not have a place in determining whether 

   



23 

an individual is barred from raising a claim in a subse- 

quent federal petition which he did not include in his 

first petition. 

With claims omitted from an initial petition, the focus 

should necessarily be on whether it is a claim of which 

the individual either was aware, or should have been 

aware, based upon the circumstances at the time. In this 

case, there is no doubt that the Petitioner was aware of 

the claim as he raised it in his first state habeas corpus 

proceeding and counsel made a specific decision not to 

present the claim in the first federal habeas corpus pro- 

ceeding. This is a case in which counsel asserts he 

believed the claim lacked merit at the time of the first 

state habeas corpus petition. Respondent submits that 

this is precisely the type of conduct that the abuse of the 

writ doctrine is designed to prevent. The Eleventh Circuit 
Court of Appeals in a prior holding examining just this 

question held that “The question is whether the Petitioner 

knew of the possibility of making such a claim, not 

whether he believed that the claim itself was mer- 
itorious.” Booker v. Wainwright, 764 F.2d 1371, 1377 (11th 

Cir. 1985). That Court concluded that “To excuse every 

petitioner who later raises a claim that he earlier believed 

lacked merit would be to carve out an exception for the 

very group of successive petitions targeted by Sanders 

and Rule 9(b) — those petitions lacking serious merit, 
brought only for the purpose of delay or vexation.” Id. 

That Court also was seriously concerned with any 

requirement that there be a specific determination of 

whether a petitioner had “believed” the claim was insub- 

stantial. “[A] factor in ascertaining that belief would be 

the apparent merit of the claim itself. The very purpose of 

     



  
  

24 

the abuse of the writ doctrine is to spare the judicial 

system the burden of exploring the merits of such 
claims.” Id. See also Gullett v. Armontrout, 894 F.2d 308, 310 

(8th Cir. 1990). Thus, the focus necessarily must be on the 

Petitioner's conduct, not his subjective belief as to the 
merits of the claim. 

Petitioner does not question the fact that there is no 

longer a requirement that the Petitioner himself actually 

participate in the decision not to raise the claim, a con- 
cept formally embodied in the Fay standard. The only 
question is whether the concept of abandonment neces- 
sarily includes a knowing and intelligent waiver and 
includes a requirement that the Petitioner or his counsel 

have knowledge of all of the facts pertaining to the claim 

before he can be said to have abandoned the claim and 

abused the writ. Respondent submits that there is no such 

requirement in the case law of this Court or in the rules 

dealing with abusive conduct, nor does Petitioner cite to 

any law requiring such a standard. 

The concept of abuse of the writ is designed to pre- 

vent needless piecemeal litigation and particularly to pre- 
vent delay in death penalty cases. To allow a petitioner to 

excuse conduct such as that presented in the instant case 

by simply denying he was aware of all possible informa- 

tion at the time he made a specific decision that a claim 
was not meritorious and he would thus forego its presen- 
tation, undermines the entire purpose behind the abuse 
of the writ doctrine. Under this standard, Petitioner 

would not even have to prove unawareness but simply 

deny awareness. 

Respondent submits that it would be appropriate for 

this Court to further define the concept of abuse of the 

   



25 

writ to require that when one is aware of a legal claim to 

the extent that it is actually raised in state court prior to 

the first petition in federal court, the failure to raise that 

claim in the first federal habeas corpus action constitutes 

an abuse of the writ. A petitioner’s attempt to prove that 

he did not make a knowing and voluntary waiver of the 

claim under the Johnson wv. Zerbst standard should be 

insufficient to excuse such abusive conduct. 

II. THE ELEVENTH CIRCUIT COURT OF APPEALS 
PROPERLY FOUND THAT PETITIONER HAD 
ABUSED THE WRIT BY FAILING TO RAISE A 
MASSIAH CLAIM IN HIS FIRST FEDERAL 
HABEAS CORPUS PETITION. 

Petitioner specifically challenges the decision of the 

Eleventh Circuit Court of Appeals finding an abuse of the 

writ in relation to Petitioner’s allegation of a violation of 

Massiah v. United States, 377 U.S. 201 (1964). Respondent 

submits that the circuit court properly found that the 
district court abused its discretion in not finding an abuse 

of the writ and that Petitioner had failed to prove that he 
had not engaged in abusive conduct by omitting an 

exhausted claim from his first federal habeas petition 

which was ripe for adjudication. 

It is clear that the basis utilized by the Eleventh 

Circuit Court of Appeals for finding an abuse of writ is 

one that has been long recognized and accepted by this 

Court. In Sanders v. United States, this Court acknowl- 

edged that an abuse of the writ could be found for several 

reasons, including as examples a deliberate withholding of 

grounds at the time of filing the first application or a 
deliberate abandonment of grounds at the first hearing.  



26 

This serves one purpose of the abuse of the writ doctrine, 

that is, to eliminate needless piecemeal litigation. This 

Court has also held, “Successive petitions for habeas 

corpus that raise claims deliberately withheld from prior 
petitions constitute an abuse of the writ.” Woodard v. 

Hutchins, 464 U.S. 377 (1984); see also Antone v. Dugger, 

465 U.S. 200, 206 (1984) (“as applicant had presented each 

of these claims to the state court before the first petition 

for habeas was filed . . . applicant hardly can contend that 

these claims were unknown to him at that time”). 

Petitioner seeks to avoid a discussion of his own 

conduct in this matter by focusing instead on the conduct 

of the state and the perceived errors in the opinion of the 

Eleventh Circuit Court of Appeals. Neither the conduct of 

the state nor any part of the opinion of the court of 

appeals excuses Petitioner’s abusive conduct. 

Contrary to Petitioner’s assertions, to affirm the deci- 

sion of the Eleventh Circuit Court of Appeals, it would 

not be necessary to “repudiate” years of jurisprudence of 

this Court. Rather, the Eleventh Circuit Court of Appeals 

properly applied the abuse of the writ standard and 

examined this case as an individual factual situation and 

found the conduct of counsel in this case to be abusive. 

Neither Sanders, 28 U.S.C. § 2244(b) nor Rule 9(b) purport 

to set forth an exclusive listing of abusive conduct. 

One of Petitioner’s complaints about the opinion of 

the Eleventh Circuit Court of Appeals revolves around 
what Petitioner deems to be that court’s ignoring of fac- 

tual findings made by the district court. A review shows 

that the circuit court accepted the factual findings made 

by the district court, but simply and correctly did not 

   



27 

accept the legal conclusions reached. This Court has long 

recognized that the clearly erroneous rule of Fed. R. Civ. 
P. 52(a) does not apply to conclusions of law. Pullman- 

Standard v. Swint, 456 U.S. 273 (1982). Further, if the 
findings of the court rest on an erroneous view of the law, 

those findings may be set aside. There is no rule or 

principle that will always specifically delineate what 
issues are questions of fact, what issues are questions of 

law and what issues are actually mixed questions of fact 
and law. “A finding of fact in some cases is inseparable 

from the principles through which it was deduced.” Bose 

Corp. v. Consumers Union of United States, Inc., 466 U.S. 

485, 501 n.17 (1984). See also Fiske v. Kansas, 274 U.S. 380, 

385-7 (1927) (where “finding of fact and conclusion of law 
are so intermingled as to make it necessary, in order to 

pass upon the federal question, to analyze the facts.”). 

In a related context dealing with the presumption of 

correctness afforded to state court factual findings under 

28 U.S.C. § 2254(d), this Court has also acknowledged 

this difficulty, but concluded that certain things such as 

the voluntariness of confessions, Miller v. Fenton, 474 U.S. 

104 (1985), effectiveness of counsel, Strickland v. Washing- 

ton, 466 U.S. 668 (1984) and conflict of interest, Cuyler v. 

Sullivan, 446 U.S. 335 (1980), are mixed questions of fact 

and law and not pure questions of fact. Similarly, the 

district court’s findings in relation to the abuse of the writ 

questions were mixed questions of fact and law. The 

Eleventh Circuit Court of Appeals accepted the factual 
findings of the district court, but disputed the ultimate 

legal conclusions reached by the district court, which 

legal conclusions are not entitled to be reviewed under 

the clearly erroneous rule. 

  

 



28 

The Eleventh Circuit Court of Appeals disagreed 

with the district court, first of all in the district court’s 

ultimate conclusion that the Petitioner could not be said 

to have intentionally abandoned the Massiah claim. The 

circuit court specifically found that this disagreement was 

based on the appropriate legal standard to be applied and 

the meaning of intentional abandonment and not on the 

underlying factual findings of exactly what occurred. It is 

clear that the ultimate meaning of abuse of the writ and 

deliberate abandonment are legal questions and not fac- 

tual matters. Once the definitions are established, then 

the conduct of an individual would necessarily be a fac- 

tual finding. 

Petitioner also takes issue with the circuit court's 

resolution of the allegation of inexcusable neglect and the 

inquiry into the investigation conducted by counsel. 

Again, the circuit court of appeals acknowledged the 

district court’s factual findings in regard to what counsel 

did, but disagreed with the conclusion as to whether the 

investigation by counsel was legally sufficient and ade- 

quate to excuse Petitioner’s abusive conduct. This issue, 

similar to an issue of effective assistance of counsel, is an 

ultimate legal issue, not a factual one. What actions coun- 

sel took is a factual question, but the adequacy and 

reasonableness of that conduct is not. 

As concluded by the Eleventh Circuit Court of 

Appeals, a review of the testimony presented to the dis- 

trict court shows that there is no question but that the 

issue of a Massiah violation was abandoned. There is no 

question but that the issue was raised in the first state 

   



29 

habeas corpus petition and was asserted in an amend- 

ment to that first habeas corpus petition. It is uncon- 

troverted that Petitioner did not raise the claim in the 

first federal habeas corpus proceeding. 

Ironically, the district court itself reached two differ- 

ent conclusions on the question of abandonment. The 

district court originally began the hearing by noting that 

the testimony of Offie Evans was absolutely true and the 
court had no doubt as to the guilt of the Petitioner. (R4-4). 

The court emphasized that Massiah had been decided at 

the time of the first federal petition, it was eminently 

clear that Evans was a cellmate of the Petitioner and that 

those facts alone would always raise the possibility of a 

Massiah claim. The court also noted the testimony at trial 

that Evans had talked to a deputy. The court specifically 

asked why there had been no previous inquiry as to 
when, if at all, Mr. Evans became an agent of the state. Id. 

at 5. 

The court at the beginning of the hearing concluded 

as well that the Petitioner was aware that there was a 
written statement. Id. at 9. The court subsequently 

emphasized its decision noting that the fact that the Peti- 

tioner was housed in a cell next to Evans and that Evans 

allegedly cooperated with law enforcement officers 

should put counsel on notice to inquire when the alleged 

cooperation began. Counsel for Petitioner, Mr. Stroup, 

himself acknowledged that it did occur to him that there 

might be a Massiah claim just on those facts and that was 
the basis for his raising the claim in state court. (R4-31). 

The district court initially held that it was clear that Mr. 

Stroup thought about the issue at the state habeas corpus 

proceeding and gave up the issue. (R4-59). 

  

 



  

30 

The district court noted that even including the writ- 

ten statement of Offie Evans, there was still no evidence 

of any prior arrangement and that there was no evidence 

that Evans was an agent or informant when he was 

initially placed in the jail cell and no indication of an ab 

initio Massiah violation. Id. at 61. The court ruled that as 

to the ab initio claim, the Petitioner was no further along 

at the beginning of the hearings in the district court than 

when Mr. Stroup made the decision that he did not have 

enough information to pursue the claim. (R4-70). From a 

review of these facts and other statements at the hearing, 

it is clear the district court itself initially found an aban- 

donment of this claim of an ab initio Massiah violation, but 

went on to allow a hearing to develop the question of 

whether a Sixth Amendment violation occurred subse- 

quently based upon the fact that the evidence showed the 

authorities talked with Mr. Evans on one date and did not 

obtain a written statement until several weeks later. The 

court’s focus at the hearing was first on what information 

was obtained by Evans between those two dates. It was 

not until after two days of allowing the Petitioner to 

engage in discovery in front of the court, which could 

have been conducted during the first federal habeas 

corpus proceeding, and upon hearing the testimony of 

Mr. Worthy, that the court apparently simply changed its 

mind. Thus, in its final order, the district court com- 

pletely reversed its position and concluded that Peti- 

tioner could not be said to have intentionally abandoned 

the claim although the court acknowledged that the Peti- 

tioner did drop the claim before the first federal petition 

because it was obvious the claim could not succeed. (J.A. 

   



31 

83). The district court then, unsupported by any evi- 

dence, changed its position on another point stating that 

the statement of Offie Evans was a strong indication of an 

ab initio relationship. 

The discrepancies that Petitioner finds between the 

district and circuit courts lies in the legal conclusion as to 

what constitutes intentional abandonment and not in the 

factual determination as to what counsel did or what 

counsel knew. The Eleventh Circuit Court of Appeals 

credited the district court’s finding that counsel was 
unaware of the statement, even though that finding is 

arguably clearly erroneous. The Eleventh Circuit Court of 

Appeals properly found, however, that Petitioner had 

abandoned this claim. Respondent submits that the court 

of appeals properly inquired as to the actual conduct of 

counsel, the specific intentional decision to delete the 

claim, and found that this constituted abusive conduct. 

The further question presented was whether counsel 

was guilty of inexcusable neglect or other abusive con- 

duct by not obtaining the evidence in support of the 

Massiah claim at some earlier date. Again, the district 

court entered a ruling at the beginning of the hearing and 

then subsequently reversed itself. The district court spe- 
cifically found for purposes of those proceedings that the 

Petitioner was aware that there was a written statement 

of Offie Evans. (R4-9). The court emphasized the circum- 

stances of the case in making this determination. The 

court also discussed the investigation by counsel, after 
reading the affidavits submitted. The court noted that 

Petitioner gave no indication he had talked to the officers 

involved, or subpoenaed the jail records and did not 

bring the claim in the first federal habeas corpus action. 

 



32 

(R4-67). The court emphasized that counsel had not “tou- 

ched every base” until he had examined the police offi- 

cers who investigated the case and allegedly had contact 

with Evans and until the records from the jail had been 

subpoenaed. (R4-71). The district court did not go so far 

as to find inexcusable neglect, but did express concerns 

about the adequacy of the investigation prior to the deci- 

sion to omit the claim from the first federal habeas corpus 

action. 

After conducting the hearings and allowing Peti- 

tioner to go into the merits of the issues, the court con- 

cluded that there was no inexcusable neglect. The court 

stated that the “state made no showing that Petitioner or 

counsel should have known to interview Worthy.” (J.A. 

85). This and other statements indicate that the court 

improperly placed the burden of proof on the state in 

making its legal conclusions on inexcusable neglect rather 

than requiring Petitioner to prove that he had not abused 

the writ. The court also incorrectly concluded that this 

was not the same claim raised in the first state petition. 

Again, the Eleventh Circuit Court of Appeals did not 

dispute the district court’s factual findings of what Mr. 

Stroup did, but rather concluded that what he did was 

not sufficient to justify or excuse the conduct in question. 

The circuit court concluded that the unsuccessful investi- 

gation would not insulate the abandonment of the claim 

after that investigation. 

Mr. Robert Stroup testified before the district court 

that he made some minimal effort to seek information on 
a potential Massiah claim in 1980. (R4-31-3). He specifi- 

cally recalled amending the state habeas corpus petition 

   



33 

which he viewed as raising a claim of a violation of 

Massiah. He knew by the time of the state habeas corpus 

proceeding that Evans had testified in another case 

involving the same assistant district attorney. Mr. Stroup 

acknowledged that he at no time talked to Detectives 

Harris or Dorsey prior to or subsequent to the state 
habeas corpus proceeding and did not recall talking to 

Deputy Hamilton even though Hamilton testified at the 

trial. Mr. Stroup did not even seek to question Detective 

Dorsey after Offie Evans mentioned Dorsey’s name in his 

state habeas testimony and mentioned that Dorsey said 

he would speak a word for him. According to Stroup he 

simply spoke with a “couple” of police officers from the 

Atlanta Bureau of Police Services in an attempt to 

develop evidence in support of the claim. He did not 

attempt to subpoena any jail records or talk to the perti- 
nent people. As noted by the Eleventh Circuit, “Counsel 

apparently made no attempt to contact persons who 

clearly had contact with Evans and McCleskey at the 

Fulton County Jail.” (J.A. 126 n. 12). No one disputes 

these facts; the dispute arises over the ultimate legal 

conclusion of whether what Mr. Stroup did was adequate 

to excuse his abusive conduct. 

From a review of the above it is clear that the Elev- 

enth Circuit Court of Appeals properly found that coun- 

sel’s investigation was not adequate to excuse the failure 

to have presented the claim or evidence earlier. Counsel 

should have discussed the matter with persons connected 
with the case and with Mr. Evans specifically. 

Petitioner seems to assert that counsel had no obliga- 

tion to talk with Detectives Dorsey or Harris or Mr. 

Hamilton because now, almost ten years after the state  



  

34 

habeas corpus proceeding in which this issue was raised, 

these individuals deny any knowledge of any move of 

Offie Evans or agency relationship between Evans and 

the State. What these witnesses testified to at this late 
date has absolutely no bearing on counsel’s obligation at 

the time of his initial investigation. Counsel had the 

obligation at the time to inquire of the appropriate indi- 

viduals. Whether he would have received information is 

not the question. The critical question for resolution is the 

adequacy of counsel's investigation. 

Petitioner also attempts to focus the Court’s attention 
on the conduct of the state in an effort to divert attention 

from his own abusive conduct. Clearly, Petitioner is the 

one seeking to invoke an equitable remedy and has to 

overcome the equitable bar. Contrary to Petitioner’s 

assertions, the state has at no time concealed anything or 

engaged in any bad faith conduct. It should be noted that 

the state at all times has disputed the district court’s 

finding of a Massiah violation and has continually 

asserted that the district court was clearly erroneous in 

these findings. Furthermore, the state presented the state- 

ment in question to the trial court for an in camera 

inspection as is proper. At the state habeas corpus pro- 

ceeding, Petitioner did not request this statement but 
requested the file which was made available to trial coun- 

sel for discovery purposes, not the entire prosecution and 
police files. Mr. Parker even told Mr. Stroup of the exis- 

tence of the statement in his deposition. At the hearing in 
the district court on the second federal petition, the assis- 

tant district attorney turned over his entire files, includ- 

ing all work product and even matters totally unrelated 

to the Massiah claim. When counsel filed the Open Record 

 



35 

Act request, apparently with the Atlanta Police Depart- 

ment, the statement in question was turned over to coun- 

sel. Thus, the conduct of the state cannot be used as an 

excuse by the Petitioner for his failure to conduct a fur- 

ther investigation. 

Furthermore, the written statement of Evans did not 

support the Petitioner's Massiah claim. The district court 

itself initially noted that the statement did not present 
any further evidence to substantiate an ab initio Massiah 
violation, although the district court contradicted that 

finding in its later written order. The written statement of 

Offie Evans does no more than indicate that Mr. Evans 

talked with the police on two different occasions, that Mr. 

Evans initiated the conversations with the Petitioner and 

apparently misrepresented his identity to the Petitioner. 

This provides no more support to Petitioner's Massiah 

claim than was clearly available at the time of the first 
state habeas corpus proceeding. 

Any alleged support for Petitioner's Massiah claim 

comes solely from the testimony of Mr. Ulysses Worthy. 

Mr. Worthy has never been hidden from the Petitioner. In 

fact, Petitioner discovered his existence by a simple ques- 

tion directed to Detective Harris at the hearings before 

the district court. Detective Harris volunteered the infor- 

mation that Mr. Evans was interviewed in Mr. Worthy’s 
office. Had the Petitioner asked that question of Detective 
Harris ten years ago, he no doubt would have given the 

same answer.2 

  

2 Petitioner would then have known to interview Mr. Wor- 

thy and a hearing could have been held at a time when the jail 

(Continued on following page) 

  
 



36 

Petitioner asserts that he abandoned his claim only 

after the “officials” testified under oath. Petitioner asserts 

that Mr. Parker was the superior of the police officers, 

which is incorrect, and asserts that the state officials have 

lied. It should be noted that prior to the district court 
hearing on the second federal habeas corpus petition, the 

only individual whose testimony under oath was even 

remotely related to the Massiah claim was Mr. Parker. Mr. 

Parker has never testified that he knew of any agency 

relationship between Evans and the state, and the district 

court did not find that Mr. Parker knew of any such 
relationship. No other state “official” testified in relation 
to this claim prior to the second federal habeas corpus 

petition and no other state official, who was called to 

testify, provided Petitioner with any information prior to 

the hearings in the district court. Petitioner’s assertions 

that officials “lied under oath” can only refer to the 

testimony presented during the hearings in the district 

court in which witnesses contradicted the testimony of 

Mr. Worthy. Again, this subsequent testimony has no 

impact on the adequacy of Petitioner’s initial investiga- 
tion. Petitioner does not know what the witnesses would 

have told him in 1980 or 1981 solely because he did not 

ask. Therefore, Petitioner’s assertion that the state has 

engaged in a ten year pattern of suppression, denial and 

perjury is clearly an inaccurate representation of the 

record before this Court. 

  

(Continued from previous page) 

records would still have been available and memories would 

have been fresh. 

 



37 

Therefore, it is clear that the Eleventh Circuit Court 

of Appeals was correct in its conclusion that Petitioner's 

initial investigation of the Massiah claim was inadequate 

to excuse his failure to have presented this evidence and 
raised the claim in the first federal habeas corpus pro- 

ceeding. Thus, under either the standards of Sanders v. 

United States or under any modified standard this Court 

seeks to adopt, based on the inadequate investigation and 

the omission of the Massiah claim, the Eleventh Circuit 

correctly found that there was an abuse of the writ. 

III. THE ELEVENTH CIRCUIT COURT OF APPEALS 
PROPERLY FOUND ANY ALLEGED MASSIAH 
VIOLATION TO BE HARMLESS. 

Petitioner challenges the Eleventh Circuit Court of 

Appeals’ finding of harmless error concerning the Mas- 

sigh violation. Petitioner asserts certain “factual” findings 

by the district court in its harmless error analysis are 

entitled to be reviewed under the clearly erroneous rule, 

citing Amadeo v. Zant, 486 U.S. 214 (1988). Respondent 
submits the clearly erroneous rule does not apply to the 

harmless error question particularly when the district 

court ignored prior rulings by the en banc court and when 

any such “factual findings” were derived solely from the 

trial transcript and not from credibility determinations 

after an evidentiary hearing. 

This Court has held that the clearly erroneous rule is 

not applicable where the dispute is “not so much over the 

elemental facts as over the constitutional significance to 

be attached to them.” Neil v. Biggers, 409 U.S. 188, 193 n. 3 
(1972). In this case, as in Neil v. Biggers, the Court is 

     



38 

examining “a habeas corpus case in which the facts are 

contained primarily in the state court record (equally 

available to us as to the federal courts below)” and where 

the hearings in the district court did not relate to the 

harmless error question. Id. See also Napue v. Illinois, 360 
U.S. 264, 271-2 (1959) (Court examined facts on which 

constitutional claim rested, when question was whether 

false testimony in any reasonable likelihood affected the 

jury’s verdict). 

All so-called facts found by the district court in rela- 
tion to the harmless error analysis are derived strictly 

from the trial transcript, not from any live testimony 

presented before the district court. In fact, the district 

court itself specifically ignored prior findings by the 

Eleventh Circuit Court of Appeals sitting en banc. Under 

these circumstances, there was no reason why the Elev- 

enth Circuit Court of Appeals could not rely on its own 

prior opinion and rely on exactly what it observed from 
the trial transcript in making a harmless error analysis. 

The district court’s statements that certain matters were 

testified to at trial did not amount to findings of fact, but 

were simply citations from the trial transcript. Any 

reviewing court can make similar citations to the existing 

record. 

Specifically, Petitioner focuses on the purported find- 

ing by the district court that Offie Evans’ testimony was 

“critical” to the state’s case and the district court’s pur- 

ported findings that Ben Wright's testimony was “obvi- 

ously impeachable.” Petitioner ignores the fact that these 

were precisely the considerations of the Eleventh Circuit 

Court of Appeals sitting en banc upon review of the first 

federal habeas corpus action. It was this holding by the 

 



39 

Eleventh Circuit Court of Appeals that the district court 

in this case ignored in making its harmless error analysis. 

In fact, the Eleventh Circuit Court of Appeals did not 

state that it disagreed with the district court’s finding as 

to Ben Wright's testimony, but did specifically disagree 

with the conclusion as to the nature of Offie Evans’ 

testimony, relying on its prior holding. The clearly erro- 

neous rule of Fed.R.Civ.P. 52(a) is inapplicable partic- 

ularly when a question of whether the testimony of a 

given witness was “critical” is not a pure factual finding. 

This Court has acknowledged that Sixth Amendment 
violations under certain circumstances may be subject to 

a harmless error analysis. See United States v. Morrison, 
449 U.S. 361 (1981). The Eleventh Circuit Court of 

Appeals made a correct analysis of the harmless error 

question utilizing the standard of Chapman v. California, 

386 U.S. 18 (19567). 

Petitioner and the district court concluded that 

Evans’ testimony was critical to establish that the Peti- 

tioner was the triggerman and to establish malice. This is 

based on testimony by Evans that the Petitioner admitted 

shooting the policeman, stated he wore makeup during 

the robbery and stated he would have shot his way out 

even if there had been a dozen policemen. 

The Eleventh Circuit examined first the testimony of 

Offie Evans regarding Petitioner’s admission that he was 

the triggerman. The Court noted that the state presented 

a substantial amount of circumstantial evidence relating 

to this aspect of the case, including Petitioner's own 

confession that he participated in the robbery. The evi- 

dence also showed that the officer was killed by the man  



  

40 

who entered the front of the store and the Petitioner was 

identified by two employees as the robber who came in 

the front door. The officer was killed by a .38 caliber Rossi 

and the state showed Petitioner had stolen a .38 caliber 

Rossi in an earlier robbery. Finally, evidence showed Peti- 

tioner carried a weapon with a white handle and an 

eyewitness saw a man run out the front door carrying a 

pearl-handled pistol. McCleskey, 890 F.2d at 352. The 

Court also noted that Ben Wright, the coindictee, also 

testified that McCleskey was the triggerman. The Court 

held that the other evidence at trial was such that the 

Court could conclude that any additional testimony by 

Offie Evans did not contribute to the verdict. 

The Court also examined Mr. Evans’ testimony relat- 

ing to the assertion that the Petitioner was wearing 

makeup. This was examined by the panel as well as by 

the en banc court and was found not to be crucial to the 

state’s case. This evidence supported the assertion that 

the Petitioner was the robber entering the front of the 

store. There was already testimony directly to this effect 

by Ben Wright as well as by two eyewitnesses to the 

crime and was corroborated by the Petitioner’s own con- 

fession. Thus, this one aspect of the testimony also could 

reasonably have been said not to contribute to the ver- 

dict. 

Finally, the other assertion relates to the testimony by 

Offie Evans that the Petitioner would have been willing 

to shoot his way out if there had been twelve policemen. 

Again, this particular piece of testimony, if erroneously 

admitted, was harmless beyond a reasonable doubt. As 
noted by the Eleventh Circuit Court of Appeals, this was 

not focused upon in the prosecutor’s closing argument as 

 



41 

the prosecutor argued malicious intent based upon the 

physical evidence that the Petitioner shot the police offi- 

cer once in the head and a second time in the chest as he 

was dying on the floor of the store, that the Petitioner 

could have surrendered but chose instead to kill the 

police officer, thus indicating malice, as well as arguing 

the one statement from Mr. Evans. Thus, the evidence 

pertaining to malice was overwhelming and the testi- 

mony of Offie Evans did not contribute to the verdict on 

malice murder. Furthermore, Mr. Evans did not testify at 

the sentencing phase of the trial and the testimony of 

Evans was not used by the prosecutor during his argu- 

ment at sentencing to portray Petitioner as a malicious 

criminal, but rather, the prosecutor focused on the prior 

convictions of Petitioner. 

As can be seen, this case is readily distinguishable 

from Satterwhite v. Texas, 486 U.S. 249 (1988), in which the 

critical testimony was from a psychiatrist. There this 

Court noted that the testimony was important because of 
the qualifications of the psychiatrist and because of the 
“powerful content of his message.” Id. Contrary to Satter- 

white, the testimony in this case did no more than corrob- 

orate other evidence already in the record and, thus, was 

harmless beyond a reasonable doubt. 

Respondent therefore submits that even if there is no 

abuse of the writ found, any alleged Massiah violation 

was harmless beyond a reasonable doubt. 

   



  
  

42 

IV. THE DISTRICT COURT ERRED IN FINDING A 
VIOLATION OF MASSIAH V. UNITED STATES 
AND THE FINDING BY THE DISTRICT COURT 
TO THIS EFFECT IS CLEARLY ERRONEOUS IN 
LIGHT OF THE OVERWHELMING EVIDENCE 
TO THE CONTRARY. 

Respondent has at all times contested the district 

court’s conclusion that there was a violation of Massiah v. 

United States. Should this Court resolve the abuse of the 

writ issue adversely to Respondent, the issue of the 

clearly erroneous factual findings by the district court 

must then be resolved, or the case remanded to the circuit 

court for a determination of that issue. 

Respondent asserted in the court below that certain 

findings by the district court are clearly erroneous under 

Rule 52(a) of the Federal Rules of Civil Procedure. 

Clearly, this Court may reverse any such factual findings 

where they are deemed to be clearly erroneous. “A find- 

ing is ‘clearly erroneous’ when although there is evidence 

to support it, the reviewing court on the entire evidence 

is left with the definite and firm conviction that a mistake 

has been committed.” United States v. United States Gyp- 

sum Co., 333 U.S. 364, 395 (1948). Respondent would 

further submit that the district court’s view of the evi- 

dence is “not plausible in light of the record viewed in its 

entirely.” Amadeo v. Zant, 486 U.S. 214, quoting Anderson 

v. Bessemer City, 470 U.S. 564, 573-4 (1985). 

The district court essentially resolved the agency 

question based upon the testimony of one witness, 
Ulysses Worthy. The Court believed only a small portion 

of Mr. Worthy’s testimony, concluded that the rest of his 

testimony was obviously incorrect and disregarded the 

   



43 

testimony of the remaining witnesses before the district 

court. The court then created a scenario that the court 

believed plausible, but which is without evidence to sup- 

port it. Respondent submits that based upon the entire 
evidence, the factual findings by the district court were 
clearly erroneous.3 

Respondent submits that a review of the facts set 

forth supra and all of the evidence shows that the factual 

finding by the district court, in which the court finds that 

a request was made to move Offie Evans, is clearly erro- 

neous. The further conclusion by the district court based 
upon this one factual finding that Evans was an agent has 

absolutely no support in the record. Mr. Worthy’s testi- 

mony was “so internally inconsistent on its face or 

implausible that a reasonable factfinder would not credit 

it.” Anderson at 575. Respondent submits that a review of 

all of the testimony and evidence shows that the district 

court was clearly erroneous in its factual finding regard- 

ing Mr. Evans and was also legally incorrect with regard 

to its final conclusion of a Massiah violation. Therefore, if 

this Court does not find an abuse of the writ, the finding 

by the district court to the contrary should be reversed or 

the case remanded to the Eleventh Circuit Court of 

Appeals for resolution of this issue. 

  

3 It is pertinent to note that the coindictee’s habeas corpus 
action was heard by a different district court judge who heard 
the same witnesses testify and who also considered the deposi- 
tion testimony of Evans that Judge Forrester refused to con- 
sider. That court reached the exact opposite factual conclusion. 
See Depree v. Newsome, No. 1:85-CV-3733-RLV (N.D. Ga. July 
10, 1990). (Appendix to Respondent’s brief). 

  

  
 



  

44 

V. THE DISTRICT COURT ABUSED ITS DISCRE- 
TION IN DENYING RESPONDENT'S MOTION 
FOR RELIEF FROM JUDGMENT. 

Respondent also submits that if this Court concludes 

that the district court did not err in failing to find an 

abuse of the writ and was not clearly erroneous as to its 

factual findings as set forth above, then Respondent sub- 
mits that the case should be remanded for a resolution of 

the challenge to the district court’s denial of Respon- 

dent’s motion for relief from judgment. 

The Respondent’s motion was filed to seek to include 

the testimony of Offie Evans, who did not testify origi- 

nally before the district court. Upon discovering the 

availability of Mr. Evans, Respondent filed an appropri- 

ate motion seeking relief from judgment under 

Fed .R.Civ.P. 60(b)(2) and (6). 

The deposition of Offie Evans was taken and other 

documents were submitted to the district court. The dis- 

trict court denied the motion for relief from judgment 

finding that insufficient cause had been shown under 

Rule 60(b) to justify the granting of such relief. Respon- 

dent submits that this was an abuse of discretion by the 

district court. 

In filing the motion with the district court, the 

Respondent recognized that the testimony of Mr. Evans 

did not fit within the traditional definition of newly 

discovered evidence as Mr. Evans was previously known 

to be a critical witness and there was some indication 

from the record that Evans would testify contrary to what 

had been presented at the district court hearing. Mr. 

Evans was not available to testify before the district court 

   



45 

and, under those circumstances, it should be deemed to 

be newly discovered under Rule 60(b)(2), or should have 

justified relief from judgment under Rule 60(b)(6) permit- 
ting judgment to be set aside for “any other reason justi- 

fying relief from the operation of a judgment.” 

Contrary to the assertions of the district court, if the 

evidence of the testimony of Evans was properly consid- 

ered and proper credibility findings were made, the evi- 

dence is such that a new trial would probably produce a 

new result. The district court chose to ignore its own 

earlier statements that Evans’ written statement to the 

authorities was credible and that Mr. Evans would be a 

credible witness and concluded that Mr. Evans would 
have some reason for lying due to the fact that he would 

not want to be known as an informant. This conclusion is 

unwarranted as the mere fact that Mr. Evans testified in 

the trial of the Petitioner's case establishes any danger 

with which Mr. Evans would be concerned. With Mr. 

Evans testifying directly contradictory to the only witness 

truly credited by the district court and when that one 

witness gave such an implausible version of events, and 

when Mr. Evans’ testimony corroborates the testimony of 

other witnesses and provides a logical chain of events 
that occurred, then it seems quite likely if Mr. Evans’ 

testimony were appropriately considered, a different 

result should be produced.* 

Even if the district court did not abuse its discretion 

in concluding that the requirements of Rule 60(b)(2) had 

  

4 As noted previously, that is precisely what happened 
when a different district court judge considered the coin- 
dictee’s case, including the deposition of Offie Evans. 

 



46 

not been met, Respondent submits that this case then falls 

squarely within the parameters of Rule 60(b)(6), pro- 

viding for the granting of such relief for “any other 

reason justifying relief from the operation of the judg- 

ment.” Under the unusual circumstances of the instant 

case, the availability of Mr. Evans would justify the grant- 

ing of relief from judgment. 

This Court has recently considered Rule 60(b)(6), not- 
ing, “The rule does not particularize the factors that 

justify relief, but we have previously noted that it pro- 

vides courts with authority ‘adequate to enable them to 

vacate judgments whenever such actions are appropriate 

to accomplish justice,” (cite omitted), while also cau- 
tioning that it should only be applied in ‘extraordinary 

circumstances.” (Cite omitted).” Liljeberg v. Health Services 
Acquisition Corp., 486 U.S. 847, (1988). See also Klapprott v. 

United States, 335 U.S. 601, 615 (1949). Respondent sub- 

mits that under the circumstances of this case, the grant- 

ing of relief under Rule 60(b) is appropriate. The district 

court seemed to conclude that the granting of such relief 
was not appropriate as there was no conclusion that the 

denial of the motion would result in an extreme hardship 

to the Respondent. This completely ignores the fact that 

the district court had granted habeas corpus relief in this 

action resulting in the necessity of a new trial by the state 

years after the original trial was completed, requiring 

extensive efforts to relocate evidence, witnesses, and pre- 

pare a case for trial when, with the granting of the 

motion, such extreme hardship might not result. 

Under the circumstances of this case, Respondent 

submits that justice virtually dictated the granting of the 

   



47 

motion for relief from judgment and, therefore, the dis- 

trict court’s failure to do so was clearly an abuse of 

discretion. 

  

CONCLUSION 

For all of the above and foregoing reasons, Respon- 

dent prays that the judgment and verdict of the Eleventh 

Circuit Court of Appeals be affirmed, or that the case be 

remanded to that court for a consideration of the two 

issues left undecided. 

Respectfully submitted, 

MicHAEL J. BOWERS 
Attorney General 

WiLLiam B. Hit, Jr. 
Deputy Attorney General 

Susan V. BoLeyn 
Senior Assistant Attorney General 

Mary BetH WESTMORELAND 
Senior Assistant Attorney General 
Counsel of Record for Respondent 

 





APPENDIX 

 





A-1 

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

ATLANTA DIVISION 

BERNARD DEPREE, 

Pesiiiones CIVIL ACTION 
VS. 

: 

LANSON NEWSOME, ; oa 

Respondent. 

ORDER 

Bernard Depree was indicted in the Superior Court of 

Fulton County, Georgia, on June 13, 1978, along with 

David Burney, Jr., Warren McCleskey, and Ben Wright for 

two counts of armed robbery and the murder of police 

officer Frank Schlatt. Warren McCleskey was tried sep- 
arately from the other co-defendants and received a death 

sentence. DePree was tried jointly with Burney and was 

found guilty of murder and two counts of armed robbery. 

On November 20, 1978, Depree was sentenced to life 

imprisonment on each count to be served consecutively. 

DePree’s convictions and sentences were affirmed by 

the Supreme Court of Georgia, Depree v. State, 246 Ga. 
240 (1980). His petition for a writ of habeas corpus was 

denied by the Superior Court of Tattnall County, Georgia, 

and on May 1, 1985, the Supreme Court of Georgia denied 

Depree’s application for a certificate of probable cause. 

DePree filed a petition for a writ of habeas corpus in 

this court, which was denied; DePree then filed a notice 

of appeal to the Eleventh Circuit. Subsequently, because 

of developments in Warren McCleskey’s habeas corpus  



A-2 

proceedings, DePree filed a motion with the Court of 

Appeals asking for a conditional dismissal of the appeal 

and a mandate to the district court to reopen the proceed- 

ings to allow the taking of additional evidence. On 

August 10, 1987, the Eleventh Circuit entered an order 

remaining [sic] the case to it so that this court could pass 

on DePree’s Massiah claim. Massiah v. United States, 377 

U.S. 201 (1964). The Court of Appeals subsequently 
expanded the scope of its remand order by allowing the 

petitioner to present a Giglio claim also. Giglio v. United 
States, 405 U.S. 150 (1971). 

This court initially delayed in acting on the Eleventh 

Circuit’s remand order, awaiting the outcome 

McCleskey’s habeas proceeding. However, because Judge 

Forrester had made certain credibility choices with 

respect to the testimony offered in McCleskey’s habeas 

corpus proceedings, this court determined that it was 

necessary for it also to conduct an evidentiary hearing in 

which it could weigh the credibility of the witnesses and 
make its own determinations with respect to such cred- 

ibility. Therefore, this court heard evidence on September 

5 and 6, 1989, and allowed DePree and the State to submit 

post hearing briefs. The matter is now ripe for a deter- 

mination of the issues which this court has before it as a 

result of the remand from the Eleventh Circuit. 

In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 

1199 (1964), the Supreme Court held that the Sixth 

Amendment right-to-counsel provision precluded the use 

of a defendant's incriminating statements obtained 

through a police informant after the defendant had 

obtained counsel. In arguing that Massiah requires that 

his conviction and sentence be set aside, DePree contends 

   



A-3 

that Offie Gene Evans and Howard Smith were acting as 

police informants when they overheard or elicited incrim- 

inating statements from him. 

Offie Evans was arrested on July 3, 1978, and taken to 

the Fulton County Jail. On July 12, 1978, Evans met with 
Russell Parker, the assistant district attorney prosecuting 

the Frank Schlatt murder case, and two detectives from 

the Atlanta Police Department at the Fulton County Jail. 

At this time Evans recounted various incriminating state- 

ments made by both McCleskey and DePree with respect 

to the murder of Officer Schlatt. Evans later signed a 
written statement on August 1, 1978. Mr. Parker testified 

that Evans did not tell him anything different on August 

1 than he had on July 12. 

Mr. Parker, Detective Welcome Harris, Officer Sidney 

Dorsey, and Deputy Sheriff Carter Hamilton all denied 
that they ever requested that Evans be placed in a cell 

next to Warren McCleskey or that he attempt to obtain 

any incriminating statements from McCleskey or DePree. 

Evans himself testified upon being arrested and taken to 
the Fulton County Jail he was immediately placed in Cell 

1 North 14 (i.e., Cell No. 14 on the first floor of the North 
wing); McCleskey was in the adjoining cell, 1 North 15, 

and Depree was in the cell immediately over DePree, 2 
North 14. Evans further testified that he was never 

moved from his original cell during the time he was 
incarcerated at the Fulton County Jail. 

Evans testified that a deputy sheriff, whose name he 
could not recall, had apparently overheard conversations 
going on in the cell block and suggested to Evans that he 

might have obtained information that the police would be  



  

A-4 

interested in; Evans testified that when the deputy sheriff 

asked if he would be willing to talk to the police about 
those conversations, Evans agreed to do so. Carter Ham- 

ilton testified, however, that Evans approached him, stat- 

ing that he had information regarding Officer Schaltt’s 

murder although Evans gave no specifics at that time; 

Hamilton informed Evans that he would put him in touch 

with the police and that within a day or two of the 

conversation Deputy Hamilton arranged for Mr. Parker 

and two detectives to come to the jail. 

The only testimony supporting DePree’s allegation of 

a Massiah violation comes from Ulysses Worthy, who was 
captain of the day watch in charge of the jail in 1978. 

Captain Worthy testified twice during the McCleskey 

hearings, on July 9, 1987, and again on August 10, 1987. 

On July 9, Captain Worthy testified that he recalled a 

meeting between Evans, Detective Dorsey, and, possibly, 

another person. Captain Worthy testified that, although 

he was not a participant in this meeting, he was present 

part of the time. When asked if he recalled whether 

Detective Dorsey asked Evans to listen to what he heard 

at the jail from those who may have been near him, 

Captain Worthy replied, “No, sir, I don’t recall that.” In 

response to further questions, however, Captain Worthy 

seemed to equivocate. 

Q Do you recall whether he asked him to 
engage in conversations with somebody 
who might have been in a nearby cell? 

A Seems I recall something being said to that 
effect to Mr. Evans. 

Q Okay. 

   



A-5 

A But I'm not sure that it came from Mr. — 
from Detective Dorsey or who. 

Q In other words, somebody present in that 
conversation said that but you're not certain 
whether it was Mr. Dorsey or perhaps his 
partner or somebody else there? 

A I'm really not sure. 

Q Okay. Did Mr. Evans, to your recollection, 
agree that he would do that? 

A I’m not sure. 

(Tr. 148-49). 

On July 9, Captain Worthy also testified he had been 

requested to move Evans to a cell near McCleskey: 

Q Mr. Worthy, let me see if I understand this. 
Are you saying that someone asked you to 
specifically place Offie Evans in a specific 
location in the Fulton County Jail so he 
could overhear conversations with Warren 

McCleskey? 

A Yes, ma’am. 

© When was that request made and by whom? 

A 1 don’t know exactly who made the — who 
asked for the request but during this partic- 
ular time there was several interviews of Mr. 
Evans by various officers. 

Q All right. And - 
A And the exact one that asked that request be 

made, I really can’t say now. I really don’t 
know. 

Q All right. Now, so you're saying they did - 
they wanted Mr. Evans to go in and serve as 
a listening post? Is that what they asked you 
to do?  



  

  

A 

(Tr. 

On 

Q 

A-6 

Well, they asked that he be placed near Mr. 
McCleskey. 

Was that when Mr. Evans first came into the 

jail? 

I’m not sure whether that was when he first 

came in or not. I'm not sure. 

153-55). 

August 10, 1987, during the McCleskey habeas 

proceeding Captain Worthy testified that the first 

instance in 1978 in which Evans was brought to his atten- 

tion was when Carter Hamilton brought him down to his 

office and stated that Evans wanted to call either the 

district attorney’s office or the police department because 

he had some information he wanted to pass on to them. 

(Tr. 14). Captain Worthy then testified as follows: 

To your knowledge, when was the first time 
that Evans was interviewed at the Fulton 
County Jail by the investigators on the 
Schlatt murder? 

The exact time or date I don’t recall that. 

All right. Why don’t we do this: In relation 
to the meeting that you had in your office 
with Carter Hamilton and Offie Evans when 
Hamilton asked you for permission to call 
the investigators, approximately how long 
thereafter did the investigators come out to 
the jail and talk to Offie Evans? 

To my knowledge, it was a matter of a few 
days. 

All right. Now, to your knowledge, when 
they came out in a matter of a few days, to 
your knowledge, was this the first time that 
the investigators ever came out to talk to 
Offie Evans about the Schlatt murder? 

   



o
>
 

> 
0 
>
"
 

Pr
 

LQ
 

A-7 

To my knowledge, yes. 

All right. Now, where did this meeting take 
place? 

In my office. 

All right. Did you go over and join them? 

Join them? 

Yeah, did you join them? 

Not really, no. 

Okay. Did any of them ever make — did any 
of them make a request of you at that time? 
Did they ask you to do anything, the offi- 
cers? 

Not that I can recall. 

All right. Were you ever asked to move Offie 
Evans from one cell to another? 

Yes, sir, I was. 

Who asked you to make this move? 

I’m not sure, but it would have to be - to 
have been one of the officers, either Carter 
Hamilton or it might have been Offie Evans. 
I'm really not sure at this point. 

It was, oh yeah, I believe it was Carter Ham- 
ilton. I believe it was Carter Hamilton that 

asked. 

All right. So Carter Hamilton asked you to 
move Offie Evans? 

Right. 

 



  

  

  

  Q 

A 

(Tr. 

On 

follows: 

Q 

A-8 

Now, what did you do in response to Carter 
Hamilton's request to move Offie Evans? 

Well, after he explained why he wanted him 
moved, I gave him permission to do so. 

Okay. Now, when did he ask you to move 
Offie Evans in relation to the interview with 
the investigators? 

The same day of the interview. 

Now, this request by Carter Hamilton, was 
this the only time you were asked to move 
Offie Evans? 

Yes, sir. 

16-19). 

September 5, 1989, at the evidentiary hearing 

conducted in the instant case Captain Worthy testified as 

Had it ever come to your attention [that 
Evans] knew anything in particular about 
the Schlatt murder case and the furniture 
store robbery before Mr. Hamilton brought 
it to your attention? 

No, I never discussed anything like that 
with him. 

The first time you knew of that would be on 
July 11, 1978? 

If that is when Mr. Hamilton brought it to 
my attention. 

And in the meeting, then there was a meet- 
ing at the prison; is that correct, shortly 
thereafter in which Mr. Parker and other 
people came and talked to Mr. Evans? 

   



> 
> 

> 
> 

> 

A-9 

There was a meeting at the jail. 

Do you recall how long after Mr. Hamilton 
talked to you that that occurred? 

I really don’t know. I don’t know exactly 
how long it was afterwards. 

If there was some indication someone came 

to the jail on July 12, 1978, would you dis- 
agree with that date? 

No, I couldn’t disagree. 

Now, is it correct that no one asked you to 
move Mr. Evans until after that meeting 
took place at the jail? 

It was after the meeting that they asked. 

To clarify for the moment, the meeting I am 
talking about is when Mr. Parker came out 
to the jail and two other detectives came out 
after Mr. Hamilton had talked to you, that’s 
the meeting I'm talking about. Ha[d] any- 
body asked you to move Mr. Evans before 
that meeting took place? 

No, not to my knowledge. 

Now, except for that particular meeting, 
were you ever present in the room when 
anyone talked to Mr. Evans about the mur- 
der of Frank Schlatt in that furniture store 
robbery? 

No. 

Mr. Worthy, you did not ever actually see 
Offie Evans moved from one cell to another? 

No, I did not see him moved from one cell to 
another.  



  

  

  

A-10 

Q Now Mr. Worthy, to your knowledge, isn’t it 
true that Mr. Evans was not moved from the 
time he was brought in the Fulton County 
Jail in the early part of July until the day he 
had that meeting with Mr. Parker and the 
detectives? 

A To my knowledge, Offie Evans was moved 
after the meeting. 

Q You don’t know for a fact that he was 
moved? You said you didn’t see him moved; 
is that correct? 

A I did not see him moved but the request 
came to me from one of the officers at the 
jail asking that he be moved. 

When did that take place? 

A After the meeting with the detectives. 

Q 

Q Now, did you ever hear anyone tell Mr. 
Evans to listen to conversations of Bernard 
DePree or Warren McCleskey? 

A No, I didn't. 

(Tr. 1-57 through 1-60). 

This court finds Captain Worthy’s testimony to be 
inherently centradictory and not credible. It is uncon- 

tradicted that Evans was already in the cell next to War- 

ren McCleskey prior to the July 12 meeting with Mr. 

Parker and two detectives; otherwise, it would have been 

impossible for Evans to have relayed the content of any 

conversations he had had with McCleskey to Mr. Parker 

at that meeting. Nevertheless, Captain Worthy has testi- 

fied on numerous occasions that the purported request to 

move Evans did not take place until after that meeting. 

   



A-11 

This court does not impute any sinister motive to Captain 

Worthy; the court simply notes that the events to which 

Captain Worthy testified occurred approximately ten 

years ago and that Captain Worthy had no notes or other 

documents to refresh his recollection of the events which 

occurred in July 1978. The court does note that there was 

testimony that prisoners who were considered an escape 

risk were housed in the north wing of the Fulton County 

Jail. Since Offie Evans was arrested as an escapee from a 

federal halfway house, it would have been standard pro- 

cedure for him to have been housed in a single cell in the 

north wing of the jail. Captain Worthy’s memory of a 

request to move Evans may simply have been the result 

of Evans’ being described as an escape risk and a request 

that he be housed in the north wing. This court chooses to 

believe the testimony of Evans, Mr. Parker, and all other 

persons (except Captain Worthy) who unequivocally tes- 

tified that Evans was originally placed in Cell 1 North 14, 
was never moved to another cell which he was incarcer- 

ated at the Fulton County Jail, overheard conversations 

between McCleskey and DePree and reported the subs- 

tance of those conversations to the police and the district 

attorney’s office, and was not acting at the behest of the 

police which he engaged McCleskey and DePree in con- 

versation and reported the substance of such conversa- 

tions to the police. 

DePree also relies upon the testimony of Howard 

Smith to support his claim of a Massiah violation. Smith is 

a seasoned felon who in August 1978 was incarcerated in 

the Fulton County Jail, charged with escape and auto 
theft. While in the Fulton County Jail, Smith was housed 
in a cell with DePree and one other inmate.  



  

A-12 

Smith had his sister contact the Atlanta Police to tell 

them that he had information regarding Officer Schlatt’s 
murder. His sister apparently called the police because a 

detective came to the jail and interviewed Smith. Smith 

was interviewed on at least two other occasions and gave 

written statements. The only part of Smith's testimony 

even hinting at a Massiah violation is as follows: 

Q What were you trying to — why were you 
asking those questions [to DePree]? 

A Well, the reason I was asking him the ques- 
tions, because I was told to find out more 
information from him about what happened. 

Q And who told you to find out more informa- 
tion about what happened? 

A Mr. Harris. 

(Tr. 1-17). 

This court does not view this statement by Detective 

Harris, even if accurately recalled by Smith, as sufficient 

to convert Smith’s status to that of “police informant” so 

as to invoke Massiah. Since Smith had initiated the contact 

with the police and had already relayed the substance of 

the information he had gathered from DePree, it is 

obvious that the statement by Detective Harris is little 

more than to the effect, “If you learn any more informa- 

tion, please let us know.” This court holds that such 

encouragement given to an inmate is insufficient to 

invoke Massiah. 

For the foregoing reasons, this court holds that 

DePree’s Sixth Amendment right to counsel, as enunci- 

ated in Massiah, was not violated when Evans and Smith 

testified against him at his trial.



A-13 

In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 

(1972), the Supreme Court held that evidence which 

reflects on the credibility of witnesses must be disclosed 

to a defendant. In the instant case, DePree argues that 

promises were made both to Offie Evans and Howard 

Smith and that these promises were not disclosed to 

defense counsel. 

Although Evans undoubtedly hoped to gain some- 

thing by revealing to the police the statements he had 

overheard by McCleskey and DePree (this court doubts 

that many felons “snitch” on other felons merely out of 

any sense of civic obligation), there is no credible evi- 
dence in the record to suggest that any promises were 

made to Evans to elicit his testimony. Indeed, even if one 

of the police officers or the assistant district attorney had 

promised to “speak a word” in Evans’ behalf in his own 

case, this court holds that in the instant case such a 

statement did not have to be disclosed pursuant to Giglio. 

Indeed, in McCleskey’s case, the Court of Appeals 

assumed that such a statement had been made and stated, 

“The detective’s statement offers such a marginal benefit, 

as indicated by Evans, that it is doubtful it would moti- 

vate a reluctant witness, or that disclosure of the state- 

ment would have had any effect on his credibility. The 

State’s non-disclosure therefore failed to infringe 

McCleskey’s due process rights.” McCleskey v. Kemp, 
753 F.2d 877, 884 (11th Cir. 1985) (en banc). This court 

holds that DePree has failed to present sufficient evi- 

dence to show a Giglio violation with respect to Evans. 

Howard Smith testified before this court that Detec- 

tive Harris and Russell Parker both told him not to worry 

and that they would take care of him. He stated that no  



  

A-14 

other promises were made other than that he would be 

taken care of. Both Detective Harris and Mr. Parker testi- 

fied that they could not recollect having made any prom- 

ises whatsoever to Smith. 

Again, this court does not believe that Smith testified 

against DePree out of a sense of civic obligation. As a 

seasoned felon, Smith undoubtedly hoped that his coop- 

eration would result in more favorable treatment. How- 

ever, this court holds that the marginal statements 

purportedly made by Detective Harris and Mr. Parker 

were not of such a nature that, under the circumstances of 

this case, they had to be disclosed to defense counsel at 

DePree’s trial. (Indeed, Mr. Parker testified that there 

could have been no deals made with Smith regarding his 

testimony in DePree’s case because the term of court at 

which Smith had been sentenced had already passed at 

the time he testified at DePree’s trial, and under state law, 

a sentence cannot be changed once the term of court has 

passed.) 

For the foregoing reasons, this court holds that no 

promises were made to Smith that were required to be 

disclosed to DePree under Giglio. 

DePree also asserts that his Fifth and Fourteenth 

Amendment rights were violated when the state failed to 

correct perjured testimony at the trial. This allegation is 

based upon Evans’ testimony at DePree’s trial that 

DePree “hoped that Ben [Wright] was going to get caught 
before they go to court, because he might would tell them 

how that thing went down, and he said that he hoped 
that nine out of ten in the case of Ben they were going to 

kill him anyway.” (Trial transcript 966-67). DePree argues 

   



A-15 

Evans had previously claimed that this statement was 

made by McCleskey not DePree. However, Evans’ trial 

testimony is consistent with the statement he signed on 

August 1, 1978, in which he said: 

DuPreee [sic] and McClesky [sic] started talking 
again saying “[sic] that they hoped that enough 
heat was on Ben, so that they would [sic] Ben 
when they ran down on it, and if they dokill 
[sic] him, it would be better in their favor 
because he know that Ben was mad about them 
pointing the killing at him, because they know 
that Ben would go and tell the truth to keep 
from getting tied up in that murder. DePree [sic] 
told McClesky [sic] 9 times out of 10 they are 
going to kill him any way because Ben wasn’t as 
smart as he thought he was. . . . 

The only thing in the record even remotely hinting that 
DePree has changed his testimony is a copy of Mr. Par- 

ker’s notes which he prepared as an aid in his closing 

argument. On those notes his comment that DePree had 

told McCleskey that nine times out of ten they were going 

to kill Ben anyway has been stricken through and a 

notation has been made by the assistant district attorney 

assisting Mr. Parker to the effect that Evans now says 

McCleskey made the statement. This handwritten nota- 

tion shows nothing more than that Mr. Parker’s assistant 

recalled Evans’ trial testimony differently than what actu- 

ally occurred. Other than this notation, there is no evi- 

dence in the record that Evans ever testified that the 
statement was made by McCleskey rather than DePree. 
The court finds this argument to be totally without merit. 

For the foregoing reasons, this court finds that 
DePree has stated no grounds which would entitle him to 

   



A-16 

a writ of habeas corpus. The clerk is directed to transmit 

to the Court of Appeals a copy of this order together with 

the record that has been compiled since the order of 

remand from the Eleventh Circuit. 

SO ORDERED, this 10th day of July, 1990. 

/s/ Robert L. Vining, Jr. 
ROBERT L. VINING, JR. 
United States District Judge