McCleskey v. Kemp Order

    V
l

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

ATLANTA DIVISION

WARREN McCLESKEY,
Petitioner,

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

Respondent.

O R D E R

I. INTRODUCTION.
Petitioner Warren McCleskey, convicted and sentenced to 

death in October 1978 for the murder of Police Officer Frank 
Schlatt during the course of a furniture store robbery,'1' petitions 
this court for a writ of habeas corpus on seven separate grounds: 
(1) that the state's non-disclosure of critical impeachment 
evidence violated his due process rights (the Giglio claim); (2) 
that his capital sentence was the product of intentional racial 
discrimination in violation of his eighth amendment and ecual 
protection rights (the intentional discrimination claim); (3) 
that the trial court's denial of funds to employ experts in his 
defense violated his due process rights (the Ake claim); (4) that 
the use of the petitioner's alleged statements to a jailhouse 
informant violated his sixth amendment and due process rights 
(the Massiah claim); (5) that the state's failure to correct a

CIVIL ACTION 
NO. C87-1517A

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witness's misleading testimony violated his eighth amendment and 
due process rights (the Mooney claim); (6) that the state's 
reference to appellate review in its closing argument violated 
his eighth amendment and due process rights (the Caldwell claim); 
and (7) that the state's systematic exclusion of black jurors 
violated his sixth amendment and equal protection rights (the 
Batson claim).

For the reasons discussed below, the petition for a writ of 
habeas corpus will be granted as to the Massiah claim but denied 
as to all other claims. In Part II of this order the court will 
detail the history of the petitioner's efforts to avoid the death 
penalty. Then, because the successive nature of this petition 
dominates the court's discussion and will be dispositive of many 
of the issues raised by the petition, Part III will set out the 
general principles of finality in habeas corpus actions. Next, 
the court will address each of the seven claims raised in this 
petition; first, the successive claims ir Part IV (the Giglio, 
intentional discrimination, and Ake claims) and then the new 
claims in Part V (the Massiah, Mooney, laldwel1, and Batson 
claims). Finally, in Part VI, the court v'ill address the peti­
tioner's other pending motions -- a motion for discovery and a 
motion to exceed page limits.

II. HISTORY OF PRIOR PROCEEDINGS.
The petitioner was convicted and sentenced in the Superior 

Court of Fulton County on October 12, 1978. The convictions and 
sentences were affirmed by the Supreme Court of Georgia.

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I

McCleskey v. State, 245 Ga. 108 (1980). The United States
Supreme Court then denied a petition for certiorari, McCleskey v. 
Georgia, 449 U.S. 891 ( 1980 ). On December 19, 1980, the peti­
tioner filed an extraordinary motion for a new trial in Fulton 
County Superior Court, but no hearing has ever been held on that 
motion. On January 5, 1981 the petitioner filed a petition for
writ of habeas corpus in the Butts County Superior Court. On 
April 8, 1981, that court denied all relief. On June 17, 1981 
the Georgia Supreme Court denied the petitioner's application for 
a certificate of probable cause to appeal. The United States 
Supreme Court again denied a petition for a writ of certiorari. 
McCleskey v. Zant, 454 U.S. 1093 (1981).

McCleskey filed his first federal habeas corpus petition in 
this court on December 30, 1981. This court held an evidentiary 
hearing in August and October 1983 and granted habeas corpus 
relief on one issue on February 1, 1984. McCleskey v. Zant, 580 
F. Supp. 338 (N.D.Ga. 1984). The Eleventh Circuit reversed and 
denied the habeas corpus petition on January 29, 1985. McCleskey 
v. Kemp, 753 F.2d 877 (11th Cir. 1985) (en banc). - This time the 
United States Supreme Court, granted certiorari and affirmed the
Eleventh Circuit on April 12, 1987. McCleskey v. Kemp, ___ U.S.
___, 107 S.Ct. 1756, petition for rehearing denied, ___ U.S. ___,
107 S.Ct. 3199 (1987). McCleskey filed a successive petition for 
a writ of habeas corpus in the Butts County Superior Court on 
June 9, 1987, and a First Amendment to the Petition on June 22, 
1987 (Civil Action No. 87-V-1028). That court granted the

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state's motion to dismiss the petition on July 1, 1987. The 
Georgia Supreme Court denied the petitioner's application for a 
certificate of probable cause to appeal on July 7, 1987 (Ap­
plication No. 4103).

This court issued an order on June 16 , 1987 making the
mandate of the Eleventh Circuit the judgment of this court and 
lifting the stay of execution that had been entered when the 
first federal habeas corpus petition was filed. On July 7, 1987
McCleskey filed the present petition for a writ of habeas corpus, 
a request to proceed in forma pauperis, a motion for discovery, 
and a motion for a stay of execution. The court granted the 
request to proceed in forma pauperis and held an evidentiary 
hearing on the petition on July 8 and 9, 1987. At that time, the 
court granted the motion for a stay of execution. The court took 
further evidence in a hearing on August 10, 1987 and, at the 
close of the evidence, requested post-hearing briefs from the 
parties. Tnose briefs have since been filed and the petitioner's 
claims are ripe for determination.

III. THE DOCTRINE OF FINALITY IN HABEAS CORPUS PETITIONS.
Althoagh successive petitions for a writ of habeas corpus 

are not subject to the defense of res judicata, Congress and the 
courts have fashioned a "modified doctrine of finality" which 
precludes a determination of the merits of a successive petition 
under certain circumstances. Bass v. Wainwright, 675 F.2d 1204, 
1206 (11th Cir. 1982 ). In particular, Congress has authorized 
the federal courts to decline to address the merits of a petition

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if the claims contained therein were decided upon the merits
previously or if any new grounds for relief that are asserted
should have been raised in the previous petition. 28 USC
§-2244(a) & (b). The habeas rules have described these distinct
applications of the doctrine of finality as follows:

A second or successive petition may be dismissed if the judge finds that it fails to 
allege new or different grounds for relief 
and the prior determination was on the merits 
or, if new and different grounds are alleged, 
the judge finds that the failure of the 
petitioner to assert those grounds in a prior 
petition constituted an abuse of the writ.

28 USC foil. §2254, Rule 9(b).
A purely successive petition or successive claim raises 

issues which have been decided adversely on a previous petition. 
The court may take judicial notice of allegations raised by a 
previous petition. See Allen v. Newsome, 795 F.2d 934, 937 (11th 
Cir. 1986). Rule 9(b) requires that the issue raised by the 
previous petition must have been decided adversely to the 
petitioner on the merits before the doctrine of finality obtains. 
A merits determination need not be a determination made after an 
evidentiary hearing if the facts material to the successive claim 
were undisputed at the time of the previous petition. Bass, 675 
F.2d at 1206.

A truly successive petition may be distinguished from the 
second category of petitions subject to the finality doctrine: 
petitions alleging new claims that may be an "abuse of the writ." 
28 USC §2244 (b) ; 28 USC foil. §2254, Rule 9(b). The state has

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%

the burden of pleading abuse of the writ; the burden then shifts 
to the petitioner to show that he has not abused the writ. Price 
v. Johnston, 334 U.S. 266, 292-93 (1948); see also Allen v. 
Newsome, 795 F .2d 934, 938-39 (11th Cir. 1986). To meet his 
burden, a petitioner must "give a good excuse for not having 
raised his claims previously." Allen 794 F.2d at 93 9 . An 
evidentiary hearing on an abuse of the writ defense is not 
necessary if the record affords an adequate basis for decision. 
Price, 334 U.S. at 292-93.

As this circuit has articulated the issue presented by an 
abuse of the writ defense, "[a] district court need not consider 
a claim raised for the first time in a second habeas petition, 
unless the petitioner establishes that the failure to raise the 
claim earlier was not the result of intentional abandonment or 
withholding or inexcusable neglect." Adams v. Dugger, 816 F.2d 
1493, 1494 (11th Cir. 1987) (citations omitted). See also Moore 
v. Kemp, 824 F.2d 847, 851 (11th Cir. 1987). There are a number 
of instances in which failure to raise an issue in a prior 
petition is excusable. "A retroactive change in the law and newly 
discovered evidence are examples." 28 USC foil. §2254, Rule 9 
Advisory Committee Notes. See, e.g., Ritter v. Thigpen, 828 F.2d 
662 , 665 ( 11th Cir. 1987 ); Adams, 816 F.2d at 1495. Of course, 
failure to discover evidence supportive of a claim prior to the 
first petition may itself constitute inexcusable neglect or

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Cf. Freeman v. Georgia, 599 F.2d 65, 71-72deliberate bypass. _______________
(5th Cir. 1979) (no procedural default where petitioner was 
misled by police and could not have uncovered evidence supportive 
of a claim in any event).2

Even if a particular claim is truly successive or, if it is 
a new claim, is an abuse of the writ, a court may consider the 
merits of the claim if "the ends of justice" would be served 
thereby. See Sanders v. United States, 373 U.S. 1, 16 (1963) 
(successive claim); id. at 18 (new claim); Smith v. Kemp, 715 
F.2d 1459, 1468 (11th Cir. 1983) (successive claim); Moore v. 
Kemp, 824 F.2d at 856 (new claim). The burden is upon the 
petitioner to show that the ends of justice would be served.
Sanders, 373 U.S. at 17.

The "ends of justice" exception has been subject to dif­
fering interpretations. The Court in Sanders suggested some 
circumstances in which the "ends of justice" would be served by 
re-visiting a successive claim:

If factual issues are involved, the applicant 
is entitled to a new hearing upon a showing 
that the evidentiary hearing on the prior 
application was not full and fair; we 
canvassed the criteria of a full and fair 
evidentiary hearing recently in Townsend v.
Sain, [372 U.S. 293 (1963)], and that 
discussion need not be repeated here. If 
purely legal questions are involved, the 
applicant may be entitled to a new hearing 
upon showing an intervening change in the law 
or some other justification for having failed 
to raise a crucial point or argument in the 
prior application. ... [T]he foregoing 
enumeration is not intended to be exhaustive; 
the test is "the ends of justice" and it 
cannot be too finely particularized.

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373 U.S. at 16-17. This circuit has traditionally followed the 
Sanders articulation of the "ends of justice" exception. See,
e . g. , Moore v. Kemp, 824 F.2d at 856; Smith v. Kemp, 715 F.2d at 
1468 .

'A plurality of the Supreme Court recently challenged this 
open-ended definition of "the ends of justice,"- arguing that a 
successive claim should not be addressed unless the petitioner 
"supplements his constitutional claim with a colorable showing of
factual innocence." Kuhlmann v. Wilson, ___ U.S. ___, 106 S.Ct.
2616, 2627 (1986) (Opinion of Powell, J., joined by Burger,
Rehnquist, and O'Connor, JJ.). Under this definition of the 
"ends of justice," the petitioner "must make his evidentiary 
showing even though ... the evidence of guilt may have been 
unlawfully admitted." Id. That is, petitioner must "show a fair 
probability that, in light of all the evidence, including that 
alleged to have been illegally admitted (but with due regard to 
any unreliability of it) and evidence tenably claimed to have 
been wrongfully excluded or to have become available only after 
trial, the trier of facts would have entertained a reasonable 
doubt of his guilt." Id. n. 17 (quoting Friendly, Is Innocence 
Irrelevant? Collateral Attack on Criminal Judgments, 3 8
U.Chi.L.Rev. 142 (1970)).

Following Kuhlmann, "[i]t is not certain what standards
should guide a district court in determining whether the 'ends of 
justice' require the consideration of an otherwise dismissable 
successive habeas petition." Moore, 824 F.2d at 856. The

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Eleventh Circuit, in Moore, declined to decide "whether a 
colorable showing of factual innocence is a necessary condition 
for the application of the ends of justice exception." Id. The 
court merely held that, "at a minimum, the ends of justice will 
demand consideration of the merits of a claim on a successive 
petition where - there is a colorable showing of factual inno­
cence." Id.

IV. PETITIONER'S SUCCESSIVE CLAIMS.
Three of the petitioner's claims in this second federal 

habeas petition duplicate claims in the first federal petition 
and are therefore truly successive claims that should be dis­
missed according to the dictates of Rule 9(b) unless the peti­
tioner can show that the "ends of justice" justify re-visiting 
the claims. Each claim will be discussed in turn.

A. Giglio Claim.
Petitioner's Giglio claim is based upon the state's failure 

to disclose its agreement with a witness, Offie Evans, which led 
him to testify against petitioner at trial. McCleskey argues 
that the state's failure to disclose the promise by a police 
detective to "speak a word" for Offie Evans with regard to an 
escape charge violated McCleskey's due process rights under 
Giglio v. United States, 405 U.S. 150 (1971). Giglio held that 
failure to disclose the possible interest of a government witness 
will entitle a defendant to a new trial if there is a reasonable 
likelihood that the disclosure would have affected the judgment 
of the jury. Id. at 154. This court granted habeas corpus

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relief on this claim in passing upon the first federal habeas 
petition, but the Eleventh Circuit reversed en banc. McCleskey 
v- Zant, 580 F. Supp. at 380-84, rev'd sub nom. McCleskey v. 
Kemp, 753 F.2d at 885.

McCleskey argues that the ends of justice require re­
visiting his Giglio claim for three reasons. He argues that the 
discovery of a written statement by Offie Evans provides new 
evidence of a relationship between Offie Evans and the state 
supportive of a finding of a quid pro quo for Offie Evans' 
testimony. He also proffers the affidavit testimony of jurors 
who indicate that they might have reached a different verdict had 
they known the real interest of Offie Evans in testifying against 
petitioner. Finally, petitioner contends that there has been a 
change in the law regarding the materiality standard for a 
finding of a Giglio violation.

None of these arguments is sufficient to justify re-visiting 
the Giclio claim. The written statement of Offie Evans offers no 
new evidence of an agreement by state authorities to do Offie 
Evans < favor if he would testify against petitioner. Conse­
quently, the conclusion of the Eleventh Circuit that the de­
tective ' s promise did not amount to a promise of leniency 
triggering Giglio is still valid. See McCleskey v. Kemp, 753 
F . 2d at 885 . Because the threshold showing of a promise still 
has not been made,. the ends of justice would not be served by 
allowing petitioner to press this claim again.

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Petitioner also has no newly discovered evidence with 
respect to the materiality of the state's failure to disclose its 
arrangement with Offie Evans. The affidavit testimony of the 
j.urors is not evidence that petitioner could not have obtained at 
the time of the first federal habeas petition. In any event, a 
juror is generally held incompetent to testify in impeachment of 
a verdict. Fed. R. Evid. 606(b); Proffitt v. Wainwriqht, 685 
F.2d 1227, 1255 (11th Cir. 1982). See generally McCormick on 
Evidence §608 (3d Ed. 1984).

Finally, petitioner can point to no change in the law on the 
standard of materiality. The Eleventh Circuit concluded in this 
case that there was "no 'reasonable likelihood' that the State's 
failure to disclose the detective's [promise] affected the 
judgment of the jury." McCleskey, 753 F.2d at 884. The same 
standard still guides this circuit in its most recent decisions 
on the issue. See, e.g., United States v. Burroughs, No. 
86-3566 , Slip Op. at 381 (11th Cir., Nov. 3, 1987); Brown, 785 
F.2d at 1464 (citing McCleskey v. Kemp, 753 F.2d at 885).

B. Intentional Discrimination Claim.
Having lost in the Supreme Court^ on his contentions re­

garding the Baldus Study, the petitioner nevertheless trotted it 
out to support the more narrow contention that McCleskey was 
singled out both because he is black and because his victim was 
white.

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The Baldus Study is said to be the most ambitious yet. It 
is. The part of it that is ambitious, however -- the 230-vari- 
able model structured and validated by Dr. Baldus -- did not 
adduce one smidgen of evidence that the race of the defendants or 
the race of the victims had any effect on the Georgia prose­
cutors' decisions to seek the death penalty or the juries' 
decisions to impose it. The model that Dr. Baldus testified 
accounted for all of the neutral variables did not produce any 
"death-odds multiplier" of 4 or 6 or 11 or 14 or any of the other 
numbers which the media have reported.

To be sure, there are some exhibits that would show discrim­
ination and do 'contain such multipliers. But these were not 
produced by the "ambitious" 230-variable model of the study. The 
widely-reported "death-odds multipliers" were produced instead by 
arbitrarily structured little rinky-dink regressions that 
accounted for only a few variables. They are of the sort of 
statistical analysis given short shrift by courts and social 
scientists alike in the past. They prove nothing other than the 
truth of the adage that anything may be proved by statistics.

The facts are that the only evidence of over-zealousness or 
improprieties by any person(s) in the law enforcement estab­
lishment points to the black case officers of the Atlanta Bureau 
of Police Services,  ̂ which was then under the leadership of a 
black superior who reported to a black mayor in a majority black 
city. The verdict was returned by a jury on which a black person 
sat and, although McCleskey has adduced affidavits from jurors on

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other subjects, there is no evidence that the black juror voted 
for conviction and the death penalty because she was intimidated 
by the white jurors. It is most unlikely that any of these black 
citizens who played vital roles in this case charged, convicted 
or sentenced McCleskey because of the racial considerations 
alleged.

There is no other evidence that race played a part in this
case.

C. Ake Claim.
Petitioner's last truly successive claim is based upon the 

trial court's denial of his request for the provision of funds 
for experts, particularly for a ballistics expert. Petitioner 
alleges that this ruling by the trial court denied him his right 
to due process of law as guaranteed by the fourteenth amendment. 
Petitioner raised this same claim in the first federal habeas 
petition and this court held that the claim was without merit. 
McCleskey v. Zant, 580 F. Supp. at 388-89 (citing Me ore v. Zant, 
722 F . 2d 640 (11th Cir. 1983 )). At that time the law held that 
the appointment of experts was generally a matte.' within the. 
discretion of the trial judge and could not form the basis for a 
due process claim absent a showing that the trial judge's- 
decision rendered the defendant's trial fundamentally unfair. 
Moore, 722 F.2d at 648 . With that case law in mind, this court 
concluded that the state trial court had not abused its dis­
cretion because the petitioner had the opportunity to subject

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the state's ballistics expert to cross-examination and because 
there was no showing of bias or incompetence on the part of the 
state's expert. McCleskey v. Zant, 580 F. Supp. at 389.

Arguing that the ends of justice require re-visiting the 
claim, petitioner points to the cases of Ake v. Oklahoma, 470 
U.S. 68, 83 (1985) and Caldwell v. Mississippi, 472 U.S. 320, 323 
n. 1 (1985) (plurality), as examples of a change in the law 
regarding the provision of experts. It may be that these cases 
did change the law; this matter, which was traditionally thought 
to rest within the discretion of state trial judges, now has 
heightened constitutional significance. Compare Moore v. Zant, 
722 F . 2d at 648 , with Moore v. Kemp, 809 F.2d 702, 709-12 (11th 
Cir. 1987).

Even so, this new law does not justify re-visiting this 
claim. The new Supreme Court cases require "that a defendant 
must show the trial court that there exists a reasonable proba­
bility both that an expert would be of assistance to the defense 
and that denial of expert assistance would result in a funda­
mentally unfair trial. Thus, if a defendant wants an expert to 
assist his attorney in confronting the prosecution's proof ... he 
must inform the court of the nature of the prosecution's case and 
how the requested expert would be useful." Moore v. Kemp, 809 
F . 2d at 712. A review of the state trial record indicates that 
petitioner did nothing more than generally refer to the extensive 
expert testimony available to the state. Petitioner then 
specifically requested the appointment of a psychiatric expert.

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The petitioner never specifically requested the appointment of a 
ballistics expert, nor did he make the showing that this circuit 
has held is required by Ake and Caldwell. The state trial court 
could hardly have been expected to appreciate the importance of a 
ballistics expert to petitioner's case if petitioner himself 
neither requested such an expert nor explained the significance 
of such an expert to the court.

V. PETITIONER'S NEW CLAIMS.
A . Massiah Claim.
1. Findings of Fact.
Petitioner relies primarily on the testimony of Ulysses 

Worthy before this court and the recently disclosed written 
statement of Offie Evans to support his Massiah claim. Ulysses 
Worthy, who was captain of the day watch at the Fulton County 
Jail during the summer of 1978 when petitioner was being held 
there awaiting his trial for murder and armed robbery, testified 
before this court or. July 9 and August 10, 1987. The court will 
set out the pertinent parts of that testimony and then summarize 
the information it i eveais.

On July 9, Worthy testified as follows: He recalled
"something being jaid" to Evans by Police Officer Dorsey or 
another officer about engaging in conversations with McCleskey 
(II Tr. 147-49).5 He remembered a conversation, where Detective 
Dorsey and perhaps other officers were present, in which Evans 
was asked to engage in conversations with McCleskey (II Tr. 150).

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Later, Evans requested permission to call the detectives (II Tr. 
151). Assistant District Attorney Russell Parker and Detective 
Harris used Worthy's office to interview Evans at one point, 
which could have been the time they came out to the jail at 
Evans' request (Id.).

In other cases, Worthy had honored police requests that 
someone be placed adjacent to another inmate to listen for 
information (II Tr. 152); such requests usually would come from 
the officer handling the case (Id.); he recalled specifically 
that such a request was made in this case by the officer on the 
case (II Tr. 153). Evans was put in the cell next to McCleskey 
at the request of the officer on the case (Id.); "someone asked 
[him] to specifically place Offie Evans in a specific location in 
the Fulton County Jail so he could overhear conversations with 
Warren McCleskey," but Worthy did not know who made the request 
and he was not sure whether the request was made when Evans 
first came into the jail (II Tr. 153-54); he did not recall when 
he was asked to move Evans (II Tr. 155-56).

On August 10, 1987 Worthy testified as follows: Evans was 
first brought to his attention when Deputy Hamilton brought Evans 
to Worthy's office because Evans wanted to call the district 
attorney or the police with "some information he wanted to pass 
to them" (III Tr. 14). The first time the investigators on the 
Schlatt murder case talked to Evans was "a few days" after Evans' 
call (III Tr. 16-17). That meeting took place in Worthy's office 
(III Tr. 17). Worthy was asked to move Evans "from one cell to

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who asked, "but itanother" (III Tr. 18). Worthy was "not sure" 
would have had ... to have been one of the officers," Deputy 
Hamilton, or Evans (III Tr. 18-19). Deputy Hamilton asked 
Worthy to move Evans "perhaps 10, 15 minutes" after Evans'
interview with the investigators (III Tr. 20). This was the 
first and only time Worthy was asked to move Evans (Id.). Deputy 
Hamilton would have been "one of the ones" to physically move 
Evans (III Tr. 22). Worthy did not know for a fact that Evans 
was ever actually moved (Id.). The investigators later came out 
to interview Evans on other occasions, but not in Worthy's 
presence (III Tr. 23). Neither Detectives Harris, Dorsey or 
Jowers nor Assistant District Attorney Parker ever asked Worthy 
to move Evans (III Tr. 24).

On cross-examination, Worthy re-affirmed portions of his 
July 9 testimony: He overheard someone ask Evans to engage in
conversation with McCleskey at a time when Officer Dorsey and 
another officer were present (III Tr. 32-33). Evans requested 
permission to call the investigators after he was asked to engage 
in conversation with McCleskey (III Tr. 33). Usually the case 
officer would be the one to request that an inmate be moved and 
that was the case with Evans, though he does not know exactly who 
made the request (III Tr. 46-48). Worthy also contradicted 
portions of his July 9 testimony, stating that the interview at 
which Assistant. District Attorney Parker was present was the 
first time Evans was interviewed and that Worthy had not met 
Officer Dorsey prior to that time (III Tr. 36). On further

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cross-examination, Worthy testified as follows: Deputy Hamilton 
was not a case officer but was a deputy at the jail (III Tr. 49). 
When Worthy testified on July 9 he did not know what legal issues 
were before the court (III Tr. 52-53 ). After his July 9 testi­
mony he met with the state's attorneys on two occasions for a 
total of forty to fifty minutes (III Tr. 53-54). After his 
July 9 testimony he read a local newspaper article mentioning him 
(III Tr. 56 ) .

In response to questions from the court, Worthy stated that 
he was satisfied that he was asked for Evans "to be placed near 
McCleskey's cell," that "Evans was asked to overhear McCleskey 
talk about this case," and that Evans was asked to "get seme 
information from" McCleskey (III Tr. 64-65). Worthy maintained 
that these requests were made on the date that Assistant 
District Attorney Parker interviewed Evans, but he could not 
explain why the investigators would have requested a move on the 
same day that Evans had already told the investigators that he 
was next to McCleskey, that he had been listening to vrlat 
McCleskey had been saying, and that he had been asking McClcshey 
questions (III Tr. 64).

In summary, Worthy never wavered from the fact that somec-e, 
at some point, requested his permission to move Evans to be near 
McCleskey. Worthy's July 9 testimony indicates the following 
sequence: The request to move Evans, the move, Evans' request to 
call the investigators, the Parker interview, and other later 
interviews. Worthy's August 10 testimony indicates a different

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sequence: Evans' request to call the investigators, the Parker 
interview, the request to move Evans by Deputy Hamilton, and 
other later interviews. Worthy's testimony is inconsistent on 
O.fficer Dorsey's role in requesting the move, on whether Deputy 
Hamilton requested the move, and on whether the request to move 
Evans preceded Evans' request to call the investigators. Worthy 
has no explanation for why the authorities would have requested 
to move Evans after the Parker interview, at which Evans made it 
clear that he was already in the cell adjacent to McCleskey's.

All of the law enforcement personnel to whom Worthy informed 
-- Deputy Hamilton, Detectives Dorsey, Jowers and Harris, and 
Assistant District Attorney Parker -- flatly denied having 
requested permission to move Evans or having any knowledge of 
such a request being made (III Tr. 68-71; 80-81, 95; 97-98; 
102-03; 111-12, 116). It is undisputed that Assistant District 
Attorney Parker met with Evans at the Fulton County Jail on only 
one occasion, July 12, 1978 , and that Evans was already in the 
cell next to McCleskey's at that time (III Tr. 113-14; 71-72).

Petitioner also relies on Evans' twenty-oie page statement 
to the Atlanta Police Department, dated August 1, 1978, in 
support of his claim that the authorities deliberately elicited 
incriminating information from him in violation of his sixth 
amendment right to counsel. Evans' statement relates conversa­
tions he overheard between McCleskey and McCleskey's co-defendant 
DuPree and conversations between himself and McCleskey from 
July 9 to July 12, 1978. McCleskey's statements during the

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course of those conversations were highly incriminating. In 
support of his argument that the authorities instigated Evans' 
information gathering, McCleskey points to the methods Evans used 
to secure McCleskey's trust and thereby stimulate incriminating 
conversation. Evans repeatedly lied to McCleskey, telling him 
that McCleskey's co-defendant, Ben Wright, was Evans' nephew; 
that Evans' name was Charles; that Ben had told Evans about 
McCleskey; that Evans had seen Ben recently; that Ben was 
accusing McCleskey of falsely identifying Ben as the "trigger 
man" in the robbery; that Evans "used to stick up with Ben too;" 
that Ben told Evans that McCleskey shot Officer Schlatt; and that 
Evans was supposed to have been in on the robbery himself.

In addition, McCleskey argues that Evans' knowledge that 
McCleskey and other co-defendants had told police that co­
defendant Ben Wright was the trigger person demonstrates Evans' 
collusion with the police since that fact had not been made 
public at that time. Finally, McCleskey points to two additional 
pieces of evidence about Evans' relationship with the police: 
Evans testified at McCleskey's trial that he had talked to 
Detective Dorsey about the ca i e before he talked to Assistant 
District Attorney Parker (Per. Exh. 16 at 119); and Evans had 
acted as an informant for Detective Dorsey before (II Tr. 52-3).

The factual issue for the court to resolve is simply stated: 
Either the authorities moved Evans to the cell adjoining 
McCleskey's in an effort to obtain incriminating information or 
they did not. There is evidence to support the argument that

-20-



Evans was not moved, that he was in the adjoining cell fortu­
itously, and that his conversations with McCleskey preceded his 
contact with the authorities. Worthy's testimony is often 
c.onfused and self-contradictory, it is directly contrary to the 
testimony of Deputy Hamilton and Detective Dorsey, it is contrary 
to Evans' testimony at McCleskey' s trial that he- was put in the 
adjoining cell "straight from the street" (Trial Tr. 873), and it 
is contrary to the opening line of Evans' written statement 
which says, "I am in the Fulton County Jail cell # 1 north 14 
where I have been since July 3, 1978 for escape." Worthy himself 
testified that escape risks where housed in that wing of the jail 
(III Tr. 13-14). Moreover, the. use of Evans as McCleskey 
alleges, if it occurred, developed into a complicated scheme to 
violate McCleskey*s constitutional rights —  its success required 
Evans and any officers involved to lie and lie well about the 
circumstances. For these reasons, the state asks this court to 
reject Worthy's testimony that someone requested permission to 
move Evans next to McCleskey's cell.

After caiefully considering the substance of Worthy's 
testimony, his demeanor, and the other relevant evidence in this 
case, the court concludes that it cannot reject Worthy's testi­
mony about the fact of a request to move Of fie Evans. The fact 
that someone, at some point, requested his permission to move 
Evans is the one fact from which Worthy never wavered in his two 
days of direct and cross-examination. The state has introduced 
no affirmative evidence that Worthy is either lying or mistaken.

-21-



The lack of corroboration by other witnesses is not surprising; 
the other witnesses, like Assistant District Attorney Parker, had 
no reason to know of a request to move Evans or, like Detective 
Dorsey, had an obvious interest in concealing any such arrange­
ment. Worthy, by contrast, had no apparent interest or bias that 
would explain any conscious deception. Worthy's testimony that 
he was asked to move Evans is further bolstered by Evans' 
testimony that he talked to Detective Dorsey before he talked to 
Assistant District Attorney Parker and by Evans' apparent 
knowledge of details of the robbery and homicide known only to 
the police and the perpetrators.

Once it is accepted that Worthy was asked for permission to 
move Evans, the conclusion follows swiftly that the sequence of 
events to which Worthy testified originally must be the correct 
sequence; 'i.e., the request to move Evans, the move, Evans' 
request to call the investigators, the Parker interview, and 
other later interviews. There are two other possible con­
clusions about the timing of the request to move Evans, but 
neither is tenable. First, the request to move Evans could have 
come following Evans' meeting with Assistant District Attorney 
Parker, as Worthy seemed to be testifying on August 10 (III Tr. 
20). However, a request at that point would have been non­
sensical because Evans was already in the cell adjoining 
McCleskey's. Second, it could be that Evans was originally in the 
cell next to McCleskey, that he overheard the incriminating 
statements prior to any contact with the investigators, that

-22-



McCleskey was moved to a different cell, and that the authorities 
then requested permission to move Evans to again be adjacent to 
McCleskey. As the state concedes, this possibility is mere 
speculation and is not supported by any evidence in the record. 
Post-Hearing Brief at 53.

For the foregoing reasons, the court concludes' that peti­
tioner has established by a preponderance of the evidence the 
following sequence of events: Evans was not originally in the
cell adjoining McCleskey's; prior to July 9, 1978, he was moved, 
pursuant to a request approved by Worthy, to the adjoining cell 
for the purpose of gathering incriminating information; Evans was 
probably coached in how to approach McCleskey and given critical 
facts unknown to the general public; Evans engaged McCleskey in 
conversation and eavesdropped on McCleskey's conversations with 
DuPree; and Evans reported what he had heard between July 9 and 
July 12, 1978 to Assistant District Attorney Parker on July 12.

2. Abuse of the Writ Questions.
The state argues that petitioner's Mass iah claim in this 

second federal habeas petition is an abuse of the writ because he 
intentionally abandoned the claim after his first state habeas 
Petition and because his failure to raise this claim in his first 
federal habeas petition was due to inexcusable neglect. As was 
Noted earlier, the burden is on petitioner to show that he has 
^Ot abused the writ. Allen, 795 F.2d at 938-39. The court 
-:l*'inc ludes that petitioner's Mass iah claim is not an abuse of the 
> Ut.

-23-



First, petitioner cannot be said to have intentionally- 
abandoned this claim. Although petitioner did raise a Massiah 
claim in his first state petition, that claim was dropped because 
it was obvious that it could not succeed given the then-known 
facts. At the time of his first federal petition, petitioner was 
unaware of Evans' written statement, which, as noted above, 
contains strong indications of an ab initio relationship between 
Evans and the authorities. Abandoning a claim whose supporting 
facts only later become evident is not an abandonment that "for 
strategic, tactical, or any other reasons ... can fairly be 
described as the deliberate by-passing of state procedures." Fay 
v • No i a, 372 U.S. 391 , 439 ( 1963), quoted in Potts v. Zant, 638 
F.2d 727, 743 (5th Cir. 1981). Petitioner's Massiah claim is 
therefore not an abuse of the writ on which no evidence should 
have been taken. This is not a case where petitioner has 
reserved his proof or deliberately withheld his claim for a 
second petition. Cf. Sanders v. United States, 373 U.S. 1, 18 
(1963). Nor is the petitioner now raising an issue identical to 
one he earlier considered without merit. Cf. Booker v. Wain- 
wriqht, 764 F .2d 1371, 1377 (11th Cir. 1985).

Second, petitioner's failure to raise this claim ;.n his 
first federal habeas petition was not due to his inexcusable 
neglect. When the state alleges inexcusable neglect, the focus 
is on "the petitioner's conduct and knowledge at the time of the 
preceding federal application. ... He is chargeable with 
counsel's actual awareness of the factual and legal bases of the

-24-
/



claim at the time of the first petition and with the knowledge 
that would have been possessed by reasonably competent counsel at 
the time of the first petition." Moore, 824 F.2d at 851. Here, 
petitioner did not have Evans' statement or Worthy's testimony at 
the time of his first federal petition; there is therefore no 
inexcusable neglect unless "reasonably competent counsel" would 
have discovered the evidence prior to the first federal petition. 
This court concluded at the evidentiary hearing that petitioner's 
counsel's failure to discover Evans' written statement was not 
inexcusable neglect (I Tr. 118-19). The same is true of coun­
sel's failure to discover Worthy's testimony. Petitioner's 
counsel represents, and the state has not disputed, that counsel 
did conduct an investigation of a possible Massiah claim prior to 
the first federal petition, including interviewing "two or three 
jailers." Petitioner's Post-Hearing Reply Brief at 5. The state 
has made no showing of any reason that petitioner or his counsel 
should have known to interview Worthy specifically with regard to 
the Massiah claim. The state argues that petitioner's counsel 
should have at least interviewed Detectives Harris and Dorsey and 
Deputy Hamilton. Given that all three denied any knowledge of a 
request to move Evans next to McCleskey, it is difficult to see 
how conducting such interviews would have allowed petitioner to 
assert this claim any earlier. See Ross v. Kemp, 785 F.2d 1467, 
1478 (11th Cir. 1986) (remanding for evidentiary hearing on

-25-



inexcusable neglect where petitioner's counsel may have relied on 
misrepresentations by the custodian of the relevant state 
records).

In short, the petitioner's Massiah claim as it is currently 
framed is not an abuse of the writ because it is distinct from 
the Massiah claim originally raised in his first state petition 
and because it is based on new evidence. Petitioner's failure to 
discover this evidence earlier was not due to inexcusable 
neglect. Because this claim is not an abuse of the writ it is not 
a successive petition under section 2244(b) and therefore the 
court need not inquire whether the petitioner has made a color­
able showing of factual innocence, if that showing is now the 
equivalent of the "ends of justice." Kuhlmann, 106 S.Ct. at 
2628 n. 18.

3. Conclusions of Law.
The Eleventh Circuit recently summarized the petitioner's

burden in cases such as this:
In order to establish a violation of the 
Sixth Amendmer. t in a jailhouse informant 
case, the accused must show (1) that a fellow 
inmate was a government agent; and (2) that 
the inmate de:iberately elicited incrim­inating stateim r.ts from the accused.

Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir. 1987). The
coincidence of similar elements first led the Supreme Court to
conclude that such a defendant was denied his sixth amendment
right to assistance of counsel in Massiah v. United States, 377
U.S. 201 (1964). In that case, the defendant's confederate

-26-



cooperated with the government in its investigation and allowed 
his automobile to be "bugged." The confederate subsequently had 
a conversation in the car with the defendant during which the 
defendant made incriminating statements. The confederate then 
testified about the defendant's statements at the defendant's 
trial. The Supreme Court held that the defendant had been 
"denied the basic protections of [the sixth amendment] when it 
was used against him at his trial evidence of his own incrim­
inating words, which federal agents had deliberately elicited 
from him after he had been indicted and in the absence of his 
counsel." id. at 206.6

The Supreme Court applied its ruling in Massiah to the 
jailhouse informant situation in United States v. Henry, 447 U.S. 
264 (1980). In that case, a paid informant for the FBI happened 
to be an inmate in the same jail in which defendant Henry was 
being held pending trial. An investigator instructed the 
informant inmate to pay particular attention to statements made 
by the defendant, but admonished the inmate not to solicit 
information from the defendant regarding the defendant's in­
dictment for bank robbery. The inmate engaged the defendant in 
conversations regarding the bank robbery and subsequently 
testified at trial against the defendant based upon these 
conversations. The Supreme Court held that the inmate had 
deliberately elicited incriminating statements by engaging the 
defendant in conversation about the bank robbery. Id. at 271. It

-27-



was held irrelevant under Mass iah whether the informant ques­
tioned the defendant about the crime or merely engaged in general 
conversation which led to the disclosure of incriminating 
statements about the crime. Id. at 271-72 n. 10. Although the 
government insisted that it should not be held responsible for 
the inmate's interrogation of the defendant in light of its 
specific instructions to the contrary, the Court held that 
employing a paid informant who converses with an unsuspecting 
inmate while both are in custody amounts to "intentionally 
creating a situation likely to induce [the defendant] to make 
incriminating statements without the assistance of counsel." Id. 
at 274.7

Given the facts established earlier, petitioner has clearly 
established a Mass iah violation here. It is clear from Evans' 
written statement that he did much more than merely engage 
petitioner in conversation about petitioner's crimes. As 
discussed earlier, Evans repeatedly lied to petitioner in order 
to gain his trust and to draw him into incriminating statements. 
Worthy's testimony establishes that Evans, in eliciting the 
incriminating statements, was acting as an agent of the state. 
This case is completely unlike Kuhlmann v. Wilson, 106 S.Ct. 2616 
(1986), where the Court found no Massiah violation because the 
inmate informant had been a passive listener and had not de­
liberately elicited incriminating statements from the defendant.

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• *

Here, Evans was even more active in eliciting incriminating 
statements than was the informant in Henry. The conclusion is 
inescapable that petitioner's sixth amendment rights, as inter­
preted in Massiah, were violated.

However, "[n]ot every interrogation in violation of the rule 
set forth in Mas s i ah ... mandate-s reversal of. a conviction." 
United States v. Kilrain, 566 F.2d 979, 982 (5th Cir. 1978). 
Instead, "the proper rule [is] one of exclusion of tainted 
evidence rather than a per se standard of reversal if any 
constitutional violation ha[s] occurred." _Id. n. 3, citing 
Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977); United States 
v. Hayles, 471 F.2d 788, 793, cert, denied, 411 U.s. 969 (5th 
Cir. 1973). In other words, "certain violations of the right to 
counsel may be disregarded as harmless error." United States v. 
Morrison, 449 U.S. 361, 365 (1981), citing Chapman v. California, 
386 U.S. 18, 23 n. 8 (1967). To avoid reversal of petitioner's 
conviction the state must "prove beyond a reasonable doubt that 
the error complained of [the use at petitioner's trial of his own 
incriminating statements obtained in violation of his sixth 
amendment rights] did not contribute to the verdict obtained." 
Chapman, 386 U.S. at 24. See also Brown v. Dugger, No. 85-6082, 
Slip Op. at 511-12 (11th Cir. November 13, 1987).

Once the fact of the Massiah violation in this case is 
accepted, it is not possible to find that the error was harmless. 
A review of the evidence presented at the petitioner's trial

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reveals that Evans' testimony about the petitioner's incrim­
inating statements was critical to the state's case. There were 
no witnesses to the shooting and the murder weapon was never 
found. The bulk of the state's case against the petitioner was 
three pronged: (1) evidence that petitioner carried a particular 
gun on the day of the robbery that most likely fired the fatal 
bullets; (2) testimony by co-defendant Ben Wright that petitioner 
pulled the trigger; and (3) Evans' testimony about petitioner's 
incriminating statements. As petitioner points out, the evidence 
on petitioner's possession of the gun in question was conflicting 
and the testimony of Ben Wright was obviously impeachable.® The 
state also emphasizes that Evans testified only in rebuttal and 
for the sole purpose of impeaching McCleskey's alibi defense. But 
the chronological placement of Evans' testimony does not dilute 
its impact -- "merely" impeaching the statement "I didn't do it" 
with the testimony "He told me he did do it" is the functional 
equivalent of case in chief evidence of guilt.

For the foregoing reasons, the court concludes that peti­
tioner's sixth amendment rights, as interpreted in Ma ssiah, were 
violated by the use at trial of Evans' testimony about the 
petitioner's incriminating statements because those statements 
were deliberately elicited by an agent of the state after 
petitioner's indictment and in the absence of petitioner's 
attorney. Because the court cannot say, beyond a reasonable 
doubt, that the jury would have convicted petitioner without

-30-



Evans' testimony about petitioner's incriminating statements, 
petitioner's conviction for the murder of Officer Schlatt must be 
reversed pending a new trial.®

Unfortunately, one or more of those investigating Officer 
Schlatt's murder stepped out of line. Determined to avenge his 
death, the investigator(s) violated clearly-established case 
law, however artificial or ill-conceived it might have appeared. 
In so doing, the investigator(s) ignored the rule of law that 
Officer Schlatt gave his life in protecting and thereby tainted 
the prosecution of his killer.

B . Mooney Claim.
Petitioner's Mooney claim is based upon the state's use at 

trial of misleading testimony by Offie Evans, which petitioner 
contends violated his eighth amendment rights and his right to 
due process of law under the fourteenth- amendment. See Mooney v. 
Holohan, 294 U.S. 103, 112 (1935) (criminal conviction may not be 
obtained using testimony known to be perjured) . In particular, 
petitioner contends that the state failed to correct Evans' 
misleading testimony regarding his rial interest in testifying 
against petitioner, regarding the circumstances surrounding his 
cooperation with the state, and regarding petitioner's confession 
of having shot Officer Schlatt. Petitioner alleges that the 
newly discovered statement of Offie Evans reveals these mis­
leading elements of Offie Evans' testimony at trial.

AO 72A ®
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-31- /



Petitioner's allegation that the state misled the jury with 
Offie Evans' testimony that he was a disinterested witness is
actually a restatement of petitioner's Gig 1io claim. The 
allegation that the state misled the jury with Offie Evans' 
testimony that he happened to inform the state of petitioner's 
incriminating statements, when in fact the evidence suggests that 
Offie Evans may have been an agent of the state, is a restatement 
of petitioner's Mass iah claim. Consequently, only the allega­
tions of misleading testimony regarding the actual shooting need 
to be addressed as allegations supportive of a separate Mooney 
claim.

As a preliminary matter, the failure of petitioner to raise 
this claim in his first federal habeas petition raises the 
question of abuse of the writ. Because this claim is based upon 
the newly discovered statement of Offie Evans, the same con­
clusion reached as to the Massiah claim obtains for this claim. 
It was not an abuse of the writ to fail to raise the Massiah 
claim earlier and it was not an abuse of the writ to have failed 
to raise this claim eirlier.

However, on its merits the claim itself is unavailing. In 
order to prevail on :nis claim, petitioner must establish that 
the state did indeed use false or misleading evidence and that 
the evidence was "material" in obtaining petitioner's conviction 
or sentence or both. Brown v. Wainwright, 785 F.2d 1457, 1465 
(11th Cir. 1986). The test for materiality is whether there is 
"any reasonable likelihood that the false testimony could have

-32-



affected the judgment of the jury." I_d. at 1465-66 (quoting
United States v. Bagley, ___ U.S. ___, 105 S.Ct. 3375, 3382
(1985) (plurality)). Petitioner's allegations of misleading 
testimony regarding his confession fail for two reasons.

'First, no false or misleading testimony was admitted at 
trial. A comparison of Offie Evans' recently discovered state­
ment and his testimony at trial reveals substantially identical 
testimony regarding McCleskey's confession that he saw the 
policeman with a gun and knew there was a choice between getting 
shot by the policeman or shooting the policeman. Compare Pet. 
Exhibit E, at 6 with Trial Tr. at 870. While Offie Evans did use 
the word "panic" in his written statement when describing this 
dilemma, the addition of this word adds nothing to the substance 
of the trial testimony, which conveyed to the jury the exigencies 
of the moment when petitioner fired upon Officer Schlatt. Second, 
even if the omission of this one phrase did render the testimony 
of Offie Evans misleading, this claim would fail because there is 
no reasonable likelihood that the jury's judgment regarding peti­
tioner's guilt and his sentencing would have been altered by the 
addition of the phrase "panic" to otherwise substantially 
identical testimony.

C. Caldwell Claim.
Petitioner's third new claim is based upon references by the 

prosecutor at petitioner's trial to appellate review of the jury 
sentencing decision and to the reduction on appeal of prior life

-33-



sentences imposed on petitioner. These references are said to 
have violated petitioner's eighth amendment rights and right to 
due process of law as guaranteed by the fourteenth amendment.

To the extent petitioner claims that the reference to the 
reduction of prior life sentences was constitutionally impermis­
sible in that it led the jury to impose the death penalty for 
improper or irrelevant reasons, see Tucker v, Francis, 723 F.2d 
1504 (11th Cir. 1984), this claim comes too late in the day. 
Petitioner was aware of these comments at the time he filed his 
first federal habeas petition but did not articulate this claim 
at that time. Because the state has pled abuse of the writ, 
petitioner must establish that the failure to raise this claim 
during the first federal habeas proceeding was not due to 
intentional abandonment or inexcusable neglect. Petitioner has 
offered no excuse for not raising this claim before. He was 
represented by competent counsel at the time and should not be 
heard to argue that he was unaware that these facts would support 
the claim for habeas relief. Indeed, this court recognized the 
potential for such a claim when passing upon the first federal' 
habeas petition and concluded "it has not been raised'by fully 
competent counsel." McCleskey v. Kemp, 580 F. Supp. at 388 n. 
27.

Successive petition and abuse of the writ problems also 
plague this claim to the extent that petitioner is arguing that 
the prosecutor's reference to the appellate process somehow 
diminished the jury'.s sense of responsibility during the sen­

-34-



tencing phase. This claim in due process terms was presented to 
this court by the first federal habeas petition and rejected. 
McCleskey v. Zant, 580 F. Supp. at 387-88 (citing inter alia Corn 
v . Zant, 708 F .2d 549, 557 (11th Cir. 1983 )). Petitioner has 
offered no reason that the ends of justice would be served by 
re-visiting this due process claim.

Petitioner also argues that reference to the appellate 
process violated his eighth amendment'rights . Although peti­
tioner did not articulate this eighth amendment claim at the time 
of the first federal habeas proceeding, the failure to raise the 
claim at that time does not amount to an abuse of the writ. Only 
after this court ruled upon the first federal habeas petition did 
the Supreme Court indicate that it is a violation of the eighth 
amendment "to rest a death sentence on a determination made by a 
sentencer who has been led to believe that the responsibility for 
determining the appropriateness of the defendant's death rests 
elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328-29 
( 1985). This circuit has recently held that failure to raise a 
Caldwel1 claim in a first federal habeas petition filed before 
the decision does not amount to abuse of the writ because there 
has been a change in the substantive law. Adams v. Dugger, 816 
F.2d 1493, 1495-96 (11th Cir. 1987) (per curiam).

Although this court must reach the merits of the Caldwell 
claim, the claim itself fails for the same reasons that the due 
process prong of this claim failed. The essential question is 
whether the comments likely caused the jury to attach diminished

-35-



consequences to their deliberations on the death penalty. See 
McCleskey v. Zant, 580 F. Supp. at 388. A review of the prose­
cutor's actual comments at petitioner's trial does not reveal any 
impermissible suggestions regarding the appellate process which 
woulid have led the jury to believe that the responsibility for 
imposing the death penalty rested elsewhere. As this court 
observed when passing upon the due process claim raised by the 
first petition,

The prosecutor's arguments in this case did 
not intimate to the jury that a death 
sentence could be reviewed or set aside on 
appeal. Rather, the prosecutor's argument 
referred to petitioner's prior criminal 
record and the sentences he had received. The 
court cannot find that such arguments had the 
effect of diminishing the jury's sense of 
responsibility for its deliberations on 
petitioner's sentence. Insofar as petitioner 
claims that the prosecutor's arguments were 
impermissible because they had such an effect, the claim is without merit.

McCleskey v. Zant, 580 F. Supp. at 388.
D. Batson Claim.
Petitioner's final claim rests upon the alleged systematic 

exclusion of black jurors by the prosecutor a: petitioner's 
trial. This exclusion is said to have violated petitioner's 
right to a representative jury as guaranteed b/ the sixth and 
fourteenth amendments.

This claim was not raised during the first federal habeas 
proceedings. However, failure to raise this claim could not be 
said to constitute abuse of the writ because prior to the Supreme

-36-



Court's decision in Batson v. Kentucky, ___ U.S. ___, 107 S.Ct.
708 (1987), petitioner could not have made out a prima "facie
claim absent proof of a pattern of using preemptory strikes to 
exclude black jurors in trials other than petitioner's. See id. 
at 710-11 (citing Swain v. Alabama, 380 U.S. 202 (1965)).

Although petitioner did not abuse the writ by failing to 
raise this claim earlier, the claim itself lacks merit. The 
holding in Batson, which allows defendants to make the prima 
facie showing of an unrepresentative jury by proving a systematic 
exclusion of blacks from their own jury, has not been given 
retroactive application. The Batson decision does not apply 
retroactively to collateral attacks "where the judgment of 
conviction was rendered, the availability of appeal exhausted, 
and the time for petition for certiorari had elapsed" before the
Batson decision. Allen v. Hardy, ___ U.S. ___, 106 S.Ct. 2878,
2880 n. 1 (1986 ) (per curiam). Although the Allen decision did 
not involve a habeas petitioner subject to the death penalty, 
this circuit has specifically held that Batson may not be applied 
retroactively even to a habeas >etitioner subject to the death 
penalty. See Lindsey v. Smith, 820 F.2d 1137, 1145 (11th Cir. 
1987); High v. Kemp, 819 F.2d 988, 992 (11th Cir. 1987).

VI. OTHER MOTIONS.
Also pending before this court are petitioner's motions for 

discovery and for leave to exceed this court's page limits. The 
court presumes that the above resolution of the petitioner's 
various claims and the evidentiary hearing held in this case

AO 72A ®
(R*v. 8/82)

-37-



obviate the need for any further discovery. Petitioner's motion 
for discovery, filed before the evidentiary hearing, does not 
provide any reason to think otherwise. The motion for discovery 
is therefore DENIED. The motion to exceed page limits is 
GRANTED.

VII. CONCLUSION.
In summary, the petition for a writ of habeas corpus is 

DENIED as to petitioner's Giglio, intentional discrimination, and 
Ake claims because those claims are successive and do not fall 
within the ends of justice exception. The petition for a writ of 
habeas corpus is DENIED as to petitioner's Mooney, Caldwell and 
Batson claims because they are without merit. Petitioner's 
motion for discovery is DENIED and his motion to exceed page 
limits is GRANTED. The petition for a writ of habeas corpus is 
GRANTED as to petitioner's Massiah claim unless the state shall 
re-try him within 120

SO ORDERED, this
days og the receipt of this order. 

^~~ day of , 1987.

J. /OWEN FORRESTER 
UNITED STATES DISTRICT JUDGE

-38-AO 72A © 
(R*v. 8/82)



FOOTNOTES

1 . Petitioner was also convicted on two counts of armed robbery and sentenced to two consecutive life sentences.
 ̂ Another distinct ground for finding excusable neglect is a showing that the petitioner did not realize that the facts of 
which he had knowledge could constitute a basis for which federal 
habeas corpus relief could be granted. Booker v. Wainwright, 764 
F.2d 1371, 1376 (11th Cir. 1985). Although "[t]he exact scope of 
this alternative exception to the abuse of writ doctrine lacks 
adequate definition," id., it would appear from the cases that applies only when the petitioner appeared pro se the first habeas petition.
1273, 1276 (5th Cir. 1980). See, e.g,, Haley v,

cases that it 
in presenting Estelle, 632 F.2d

"... [W]e hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the 
Georgia capital-sentencing process." (Powell, J., for the majority). McCleskey v. Kemp, U.S. , 107 S.Ct. 1759 at1778 (1987). ---

4 See the discussion of McCleskey's Massiah claim infra.
References to the transcripts of the July 8, July 9, and August 10, 1987 hearings will be to "I TR.," "II Tr.," and "III Tr.," respectively.
Dissenting Justice White, joined by Clark and Harland, JJ., protested the new "constitutional rule ... barring the use of 

evidence which is relevant, reliable and highly probative of the 
i-sue which the trial court has before it." 377 U.S. at 208. The 
d.ssenters were "unable to see how this case presents an un­
constitutional interference with Massiah's right to counsel. 
Messiah was not prevented from consulting with counsel as often 
as he wished. No meetings with counsel were disturbed or spied 
upon. Preparation for trial was in no way obstructed. It is 
only a sterile syllogism -- an unsound one, besides -- to say 
that because Massiah had a right to counsel's aid before and 
during the trial, his out-of-court conversations and admissions 
must be excluded if obtained without counsel's consent or presence." Id. at 209.



The dissenters highlighted the incongruity of overturning 
Massiah's conviction on these facts. "Had there been no prior 
arrangements between [the confederate] and the police, had [the 
confederate] simply gone to the police after the conversation had 
occurred, his testimony relating Massiah's statements would be 
readily admissible at the trial, as would a recording which he 
might have made of the conversation. In such event, it would 
simply be said that Massiah risked talking to a friend who 
decided to disclose what he knew of Massiah's criminal activi­
ties. But if, as occurred here, [the confederate] had been 
cooperating with the police prior to his meeting with Massiah, 
both his evidence and the recorded conversation are somehow 
transformed into inadmissible evidence despite the fact that the 
hazard to Massiah remains precisely the same —  the defection of a confederate in crime." Id. at 211.

Justice Rehnquist, dissenting, questioned the validity of Massiah: "The exclusion of respondent's statements has no 
relationship whatsoever to the reliability of the evidence, and it rests on a prophylactic application of the Sixth Amendment 
right to counsel that in my view entirely ignores the doctrinal 
foundation of that right." 447 U.S. at 289. Echoing many of the 
concerns expressed by Justice White in Mass iah, id. at 290 , 
Justice Rehnquist argued that "there is no constitutional or 
historical support for concluding that an accused has a right to 
have his attorney serve as a sort of guru who must be present 
whenever an accused has an inclination to reveal incriminating 
information to anyone who acts to elicit such information at the 
behest of the prosecution." Id. at 295-96. Admitting that the 
informants in Henry and in Mass iah were encouraged to elicit 
information from the respective defendants, Justice Rehnquist 
"doubt[ed] that most people would find this type of elicitation reprehensible." Id. at 297.

For criticism of Henry for extending Massiah "despite that 
decision's doctrinal emptiness" and for giving Massiah "a firmer 
place in the law than it deserves," see Salzburg, Forward; The 
Flow and Ebb of Constitutional Criminal Procedure in the Warren 
and Burger Courts, 69 Geo.L.J. 151, 206-08 (1980).

There is some question whether Ben Wright's testimony on the 
fact of the murder would have been admissible at all absent 
corroboration by Evans' testimony. See O.C.G.A. §24-4-8 (un­corroborated testimony of an accomplice not sufficient to 
establish a fact). But see McCleskey v. Kemp, 753 F.2d at 885 
(Wright's testimony corroborated by McCleskey's admitted par­
ticipation in the robbery; corroboration need not extend to every material detail).

li



V

Massiah andy Here, as in _______the conviction consequently 
evidence is "relevant, reliable
tioner's guilt.

There

Henry, the evidence is excluded and reversed despite the fact that the 
and highly probative" of peti-

Massiah, 377 U.S. at 208 (White, J., dis­
senting). There is no question that petitioner's incriminating 
statements to Evans were made voluntarily and without coercion. 
Had Evans been merely a good listener who first obtained 
McCleskey's confession and then approached the authorities, 
Evans' testimony would have been admissible. The substance of 
the evidence would have been no different, McCleskey's risk in 
speaking would have been no different, and McCleskey's counsel 
would have been no less absent, but the evidence would have been 
admissible simply because the state did not intentionally seek to 
obtain it. While this court has grave doubts about the his­
torical and rational validity of the Supreme Court's present 
interpretation of the sixth amendment, those doubts have been 
articulated ably in the dissents of Justice White and Justice 
Rehnquist. See supra, notes 4 and 5. Until the Supreme Court 
repudiates its present doctrine this court will be obliged to reach the result it reaches today.

i

iii

AO 72A ©
(Rev. 8/82) /



13

CONCLUSION
For the reasons stated herein, as well as those presented 

by the petitioner, the decision of the court below should be 
reversed.

Re spec-tfully subni itl ed,

M ilton A. Smith 
General Counsel 

Otto F. W enzler 
Labor Relations Counsel 
Chamber of Commerce of the United 

States of America 
1615 II Street, N. W.
Washington, D. C. 20006 

Lawrence M. Cohen 
S. Richard Pincus 

Lederer, Fox and Grove 
111 West Washington Street 
Chicago, Illinois 60602

Gerard C. Smetana 
925 South Homan A venue 
Chicago, Illinois 60607 
Attorneys for The Chamber of Com­

merce of the United States of 
America