Petition for Rehearing

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

NO. 84-8176 

  

WARREN McCLESKEY, 

Petitoner-Appellee, and 
Cross-Appellant, 

-against- 

RALPH KEMP, Superintendent, Georgia 
Diagnostic & Classification Center, 

Respondent-Appellant, and 
Cross-Appellee 

  

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

ATLANTA DIVISION 

  

PETITION FOR REHEARING EN BANC 

  

ROBERT H. STROUP 

1515 Healey Building 
Atlanta, Georgia 30303 

J. LEVONNE CHAMBERS 

JAMES M. NABRIT, III 

JOHN CHARLES BOGER, 

99 Hudson Street 

New York, New York 10013 

TIMOTHY K. FORD 

600 Pioneer Square 
Seattle, Washington 94305 

ANTHONY G. AMSTERDAM 

New York University Law School 
40 Washington Square South 
New York, New York 10012 

ATTORNEYS FOR PETITIONER-APPELLEE 
AND CROSS-APPELLANT 

 



  

CERTIFICATE OF COUNSEL 
  

I express a belief, based on a reasoned and studied 

professional judgment, that the decision of the Court is contrary 

to the following decisions of the Supreme Court of the United 

States and that consideration by the full court is necessary to 

secure and maintain uniformity of decisions of this Court: 

  

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

763 (1972) 

Napue 'v. Illinois, 360 U.S. 264, 79 5.Ct. 1173 
  

(1959) 

  

Pyle .v. Kansas, 317 U.3. 213, 63 S.Ct. 177 (1942) 

Toba. 
  

ROBERT H. STROUP v 
Attorney for Petitioner 

 



  

Certificat 

Table of C 

Statement 

Statement 

And Dispo 

ARGUMENT. . 

x. 

CONCLUSION 

TABLE OF CONTENTS 
  

Page 

e Of Counsel ....... ‘oat aii EN EE En RAR “iv ows ink 

ET sa RNS CR I Te eT | TT ETE 

Of The I88Q0B. vies ive cil.” PLAIN OSI I RR, 

of the Course of Proceedings 
Bition Of CASE. ves vsevrnssisnssivoveinss ceive 

SS 99 8 05500 9 0606006060088 906060.060806060600.09000¢0 ® © © © © © 0 0 0 o 

THE NONDISCLOSURE OF AN UNDERSTANDING 
BETWEEN ATLANTA OFFICER DORSEY AND 
OFFIE EVANS, A KEY WITNESS AGAINST 
WARREN McCLESKEY, VIOLATED THE DUE 
PROCESS CLAUSE OF THE FOURTEENTH 
AME NDI ENT, ets ss sins vs bln nncivesinserivnnnnetesu, 

A. Well-Established Federal Authority Provides 
That The Withholding Of A Promise Or Under- 
standing Of Leniency As To Future 
Prosecution By Any Member Of The 
Prosecution Team Contravenes Due Process.. 

B. Nor Do The Specifics Of The Understanding 
Between Detective Dorsey And Offie Evans 
Provide A Basis To Distinguish This Case 
From Napue or Giglio. ..vveceenes Se canirisens 

C. The Majority's Harmless Error Analysis 
Is Also Inconsistent with Supreme Court 
EL TL SR RIC aa 8 Ne save vivevenas 

D. Contrary To The Court's Analysis, Georgia 
Law Holds That The Admission Of A Jail- 
house Confession, In a Primarily 

Ld 

Circumstantial Case, Cannot Be Harmless....1l1 

 



  

Table of Citations 
  

Barbee v. Warden, Maryland Penitentiary, 
S33 F.20 B82 {4th Cllrs) 1964) veer rvvivavevvnvireisnsssneevs 4 
  

Blanton v. Blackburn, 494 F.Supp. 895 
M.D, La., 1980), aff'd, 654 F.24 719 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

Sth Cir., Unit A., OBO). dieser bsnvssonnsssnnssssocevine 6 

Boone v. Paderick, 541 F.2d 447 

(41h Cir., 1976) cov oroices iaie seat ven vee in eia Sees 4,6 

Campbell. v. Reed, 594 F.28 4 {4th Cir.; 1979) cere ssvevevns 6 

Curran v. State of Delaware, 259 F.2d 707 

SEA Cr ty 1908). seco cviss ve iisnecnineedsenovnniianssnaoess 3,4 

DuBose v. Lefebre, 619 F.2d 973 (2nd Cir., 1980)...ccc.... 6 

Freeman v. State of Georgia, 599 F.2d 65 
5th CI, T9700) aie snes sens ssssvncsdnnes even sins nannies sie 3 

Giglio v. United States, 405 U.S. 150, 
92 8.CE. 763 (1072) cancun ivsnnsnssssnsaesnsnsnnas '«.. Passim 

McCleskey v, Zant, 580 P.Supp. 338 (N.D.Ga. 1984)..cvuvnes 1 

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173 

ALS OE ss seis s nin age isis ars aiviioesvsnsinsesesvenivens Passim 

Pyleiv, Kansas, 317 U.S. 213, 63 S.Ct. X77 (1942)... uv. eu3 

Schneider v. Estelle, 552 F. 2d 593 (5th Cir., 1977)...... 3 

Smith v. State of Florida, 410 F.2d 1349 
A BEN CA wy 10D) ee even cus esasisnntes ites tnessssessisiwvess 3 

Spencer v.. Zant, 729 P.24 1293 411th Cir. 1984) ..cccvereen 1 

United States v. Butler, 567 F.2d 885 
ED CLT. LOE Yc vce nas ve anise ovens nes snonuiesnoioneestss vies 4 

ii 

 



  

United States v. Turner, 490 F.Supp. 
  

583 
(E.D. Mich., 1979), aifirmed, 633 F.24 218 
(6th Cir., 1980) ..csvsceccccsnnsnsesa 

Walravan v. State, 250 Ga. 401 (1982) 
  

® © © © ®@ © © © © © © © © © 5 © & ® © O° oo 

Williams v. Brown, 609 F.2d 216 (5th Cir., 1980)...+444.... 
  

Williams v. Griswald, 743 F.24: 1533 (11th Cir., 1984). .4u0s 
  

1ii 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

NO. 84-8176 

  

WARREN McCLESKEY, 

Petitioner-Appellee, and 
Cross-Appellant, 

-against- 

RALPH KEMP, Superintendent, Georgia 
Diagnostic & Classification Center, 

Respondent-Appellant, and 
Cross-Appellee 

  

On Appeal From The United States District Court For 
The Northern District of Georgia 

Atlanta Division 

  

PETITION FOR REHEARING EN BANC 

  

Statement of The Issues. 
  

(1) Whether the deliberate failure of a key state 

witness to disclose an understanding reached between him and an 

Atlanta police official in exchange for his testimony against 

Warren McCleskey violated Napue v. Illinois, 360 U.S. 264 (1959) 
  

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

(2) Whether this wilful non-disclosure by a state 

witness, if a violation of due process, can nevertheless be 

deemed "harmless error," beyond a reasonable doubt. 

Statement of the Course of Proceedings and Disposition of Case 
  

This habeas corpus proceeding was filed in 

 



  

the United States District Court for the Northern District of 

Georgia on December 30, 1981. On February 2, 1984, the District 

: Court granted petitioner relief on the basis of an undisclosed 

promise to a witness at McCleskey's state court trial. McCleskey   

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

The respondent appealed, and petitioner 

cross-appealed. This Court, on its own motion, ordered hearing 

en banc on March 28, 1984. Spencer v. Zant, 729 F.2d 1293 (llth 
  

  

Cir. 1984). 1In its decision dated January 29, 1985, the Court, 

inter alia, reversed the District Court's grant of the writ. 

McCleskey v. Kemp, No. 84-8176 (llth Cir. January 29, 1985) (en 
  

banc) (hereinafter "McCleskey slip"). 

Statement of Facts 
  

~ The petitioner, Warren McCleskey, was tried 

for murder in the shooting death of an Atlanta police officer 

- during the course of a robbery. Evidence against the petitioner 

was essentially circumstantial in nature. No murder weapon was 

found; no witness to the actual shooting testified. 

The State offered the testimony of a witness, 

Offie Gene Evans, who testified that, while incarcerated at 

Fulton County Jail, the pet ibionet confessed to Evans that he 

indeed was the killer of the police officer, and that he would 

have done the same thing if it had been twelve officers, rather 

than one. Aside from the testimony of accomplice, Ben Wright - 

who was himself the possible trigger person - this was the only 

 



  

direct evidence that McCleskey was the killer. It was the only 

evidence from any source that McCleskey had expressed pride in 

such conduct. 

At trial, the witness denied that his testimony was 

prompted by any deals or promises made concerning federal escape 

charges which were then pending against him. In fact, Evans knew 

that Atlanta Police Detective Dorsey had expressly agreed to 

speak to federal authorities on his behalf regarding the escape 

charges, in light of his cooperation in this Petitoner's case. 

To further diminish the significance of his pending 

charge, moreover, Evans expressly told the jury it was nothing 

more than a misunderstanding. ouite to the contrary, however, 

federal records indicated that Evans had left the federal 

institution rather than face drug charges which had been lodged 

against him. After his arrest he admitted to the drug use, and 

told federal authorities he had been working for the Staté while 

on escape, and expected to be well paid for his efforts. 

Following Warren McCleskey's trial, the promise made to witness 

Evans was evidently kept. All Federal charges against him were 

dropped. 

I tte ve i mn 
However, 

claim that 
1980, Evans 

 



  

ARGUMENT 
  

1. THE NONDISCLOSURE OF AN UNDERSTANDING BETWEEN ATLANTA POLICE 

OFFICER DORSEY AND OFFIE EVANS, A KEY WITNESS AGAINST WARREN 

McCLESKEY, VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH 

AMENDMENT. 
  

A. Well-Established Federal Authority Provides That The 
Withholding Of A Promise Or Understanding Of Leniency As 
To Future Prosecution By Any Member Of the Prosecution 
Team Contravenes Due Process. 
  

A majority of this Court rejected petitioner's claim that 

Offie Evans' deliberate failure to disclose his understanding 

with an Atlanta police officer that prompted his testimony 

against Warren McClskey violated the due process clause as 

interpreted in Napue v. Illinois and Giglio v. United States. 
    

There is, however, no appropriate basis to distinguish this case 

from either Napue or Giglio. See McCleskey slip, 9-10. 

The Court's suggestion that the Giglio claim fails because a 

police detective, rather than the prosecutor, made the promise 

herein, is error. In Pyle v. Kansas,’ 317 U.S. 213, 63 8.Ct. 177 
  

(1942), the Supreme Court rejected such a limitation on the reach 

of the due process clause. There the Court held that the conduct 

of police officers which was andisclosed to the prosecuting 

attorney contravened due process. The fact that police officers, 

rather than the prosecuting attorney, were the wrongful actors in 

Pyle, supra, is detailed in Smith v. State of Florida, 410 F.2d 
  

  

1349 (5th Cir., 1969) and Curran v. State of Delaware, 259 F.2d 
  

307 (374 Cir., 1958}. 

This Circuit, as recently as Williams v. Griswald, 743 F.2d 
  

 



  

1533, at 1542 (llth Cir., 1984) has held that ntilt is of no 

consequence that the facts pointed to may support only knowledge 

of the police because such knowledge will be imputed to state 

prosecutors."). Former Fifth Circuit cases also so held. Smith 

v. State of Florida, 410 F.2d 1349, 1351 (5th Cir., 1969): 
  

Schneider v. Estelle, 552 F. 2d 593, 595 (5th Cir., 1977); ("The 
  

petitioner does allege, however, that Nicholson was a state law 

enforcement officer. As such, he was a member of the prosecution 

team"); Freeman v. State of Georgia, 599 F.2d 65, 69 (5th Cir., 
  

1979) ("We feel that when an investigating officer willfully and 

intentionally conceals material information, regardless of his 

motivation and the otherwise proper conduct of the state 

attorney, the policeman's Condes must be imputed to the state as 

part of the prosecution team"); Williams v. Brown, 609 F.2d 216 
  

{5th Cir., 1980). 

Other circuits which have considered the question have, 

universally, concluded that an undisclosed promise from a police 

officer constitutes a due process violation. Curran v. State of 
  

Delaware, supra, ("We conclude, as did the court below, that the   

knowingly false testimony of Detective Rodenheiser . . . was 

sufficient to cause the defendant's trial to pass the line of 

tolerable imperfection and fall into the field of fundamental 

unfairness"); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 
  

842, 846 (4th Cir., 1964) (""Nor is the effect of the 

nondisclosure neutralized because the prosecuting attorney was 

 



  

not shown to have had knowledge of the exculpatory evidence. 

. The duty to disclose is that the of the state, which ordinarily 

acts through the prosecuting attorney; but if he too is the 

victim of police suppression of the material information, the 

state's failure is not on that account excused."). Boone v. 
  

Paderick, 541 F.2d 447, 449-51 (4th Cir., 1976); United States v. 
  

  

Turner, 4°90 F.Supp. 583, 603 (E.D. Mich., 1979), aff'd, 633 F.2d 

218 (6th Cir., 1980); United States v. Butler, 567 F.2d 885 at 
  

891 (9th 'Cir., 1978). 

Napue, itself, does not limit its holding to the 
  

conduct of prosecutors: 

First, it is established that a conviction 
obtained through use of false evidence, known to 
be such by representatives of the State, must 
fall under the Fourteenth Amendment. . . . 

14. at 269. 

Giglio, too, speaks in broad terms that "any understanding 

or agreement as to a future prosecution would be relevant to his 

[the witness's] credibility and the jury was entitled to know of 

it." 1Id., at 155 (emphasis added). 

To the extent the Court's conclusion is based upon the 

distinction between a promise made by a prosecutor and a promise 

made by a police detective, the distinction is contrary to 

established law. 

B. Nor Do The Specifics Of The Understanding Between 
Detective Dorsey And Offie Evans Provide A Basis 
To Distinguish This Case From Napue Or Giglio. 
  

A majority of the Court also reasoned that "the 

 



  

detective's statement offered such a marginal benefit, that it is 

doubtful it would motivate a reluctant witness, or that 

disclosure of the statement would have any effect on his 

credibility." See McCleskey slip at 10. This conclusion is 

contrary to Supreme Court precedent. 

The benefit offered to the witness in Napue was no 

greater nor more certain than the benefit offered to Offie Evans 

in this case. The prosecutor told the witness in Manis that "a 

recommendation for a reduction of his sentence would be made, 

and, if possible, effectuated." 360 U.S. at 266. The prosecutor 

in that case did not have power to reduce the sentence--he could 

only make a recommendation to the decision maker, in the case of 

Napue, the Illinois court. 

In this case, too, the police detective was not the 

decision-maker (nor, indeed, was the State prosecutor, since the 

charges pending against Offie Evans were Federal charges). The 

State authority here, like the prosecutor in Napue, nevertheless 

agreed that he woud make a favorable recommendation to the 

official with authority to excercise leniency. Nor was there any 

binding, enforceable agreement between the witness and prosecutor 

in Napue, just as there was no binding, enforceable agreement 

between Detective Dorsey and Offie Evans. Napue clearly 

demonstrates therefore, that the due process clause applies to 

situations other than those involving enforceable agreements such 

as a plea bargain. 

 



  

Other circuits have held that the non-binding, 

tentative nature of such agreements with a state witness can 

increase rather than diminish, the risk that the witness’ 

testimony will be compromised or shaded because of the promise, 

dangled before him like a carrot, almost within his grasp. In 

Boone v. Paderick, 541 F.24 447 (4th Cir., 1976) the Court 
  

reasoned: 

Finally, we note that rather than weakening the 
significance for credibility purposes of an 
agreement of favorable treatment, tentativeness 
may increase its relevancy. This is because a 
promise to recommend leniency (without assurance 
of it) may be interpreted by the promisee as 
contingent upon the quality of the evidence 
produced--the more uncertain the agreement, the 
greater the incentive to make the testimony 
pleasing to the promisor." 

A number of other Circuit Court decisions have recognized this 

  

principle. DuBose v. Lefebre, 619 F.2d 973 (2nd Cir., 1980); 

Campbell v. Reed, 594 F.2d 4 (4th Cir,, 1979); ; Blanton v. 
  

  

Blackburn, 494 F.Supp. 895 at 901 (M.D. La., 1980), aff'd, 654 
  

F.2d 719 (5th Cir., Unit A., 1980); cf., United States v. Butler, 
  

567 F.2d 885, at 888-89 (9th Cir., 1978). 2 

2 Nor surely is the majority's characterization of the promise as 
one conferring a "marginal benefit" an accurate characterization 
of the escape charges pending against Evans. The pending charges 
carried a potential sentence of 5 years imprisonment and/or a 
$5,000 fine. 18 U.S.C.§751. In fact, of course, the charges 
were dropped after Evans testfied, as agreed, against McCleskey. 
The promise itself, in sum, was sufficiently clear and meaningful 
to Evans that it plainly should have been disclosed to 
McCleskey's jury. 

 



  

C. The Majority's Harmless Error Analysis Is Also 
Inconsistent With Supreme Court Standards. 
  

The majority also concluded that, "Evans' 

credibility was exposed to substantial impeachment even without 

the detective's statement and the inconsistent description of his 

escape. . . " (McCleskey slip. at ll) and that "in light of that 

substantial impeachment evidence, we find it unlikely that the 

undisclosed information would have affected the jury's assessment 

of Evans' credibility." Id. This conclusion is contrary to 

Napue and Giglio. Both of those cases recognize the critical 

nature of an undisclosed promise to a witness, made by a member 

of the prosecution team. 

The Court's decision in this cite fails to recognize 

that the testimony regarding a promise of a recommendation of 

leniency represents impeachment of a fundamentally different 

character from festinohy regarding prior convictions. Prior 

conviction evidence does not suggest to the jury that the witness 

has a present motive to Vie. By contrast, a promise of leniency 

(or a recommendation of leniency) from a member of the 

prosecution team, does just that. Applicable Supreme Court cases 

turn on this very distinction, stressing that false evidence 

which keeps from the jury evidence that a witness had possible 

motivation to lie violates due process. Napue, 360 U.S at 269: 

The jury's estimate of the truthfulness and 
reliability of any given witness may well be 
determinative of guilt or innocence, and it is 
upon such subtle factors as the possible interest 
of the witness in testifying falsely that a 
defendant's life or liberty may depend. 

Accord, Giglio, 405 U.S. at 154. 

 



  

The facts in Napue indeed would have provided a stronger 

basis for a finding of harmless error than the facts in this 

case. In. Napue, the jury was informed of one promise made to the 

witness of a favorable recommendation in exchange for his 

testimony. Therefore, the Napue jury had some incomplete 

+ knowledge that the witness had a possible motivation to lie. The 

Supreme Court, however, reversed the Illinois Supreme Court's 

conclusion of harmless error, reasoning that the promise from a 

member of the prosecution team provided stronger motivation to 

lie than a pronase from a public defender. 360 u.s. at 269. | 

In this case, the jury was informed of no evidence 

whatsoever Wien suggested that Evans had any motive to lie about 

his testimony. Indeed, he elenrly had reason to welcome the 

detective’ s offer to put in a good word with federal 

authorities--as noted above, the escape charged carried a 

potential sentence of 5 yeh imprisonment and/or a $5,000 fine. 

| 18 u.s.C. §751. 

The revelation to the jury of Evans' prior convictions 

is simply not the kind of impeachment evidence about which Napue 

and Giglio, are concerned. The jury could have viewed the prior 

conviction evidence as indicating that Evans' had nothing to 

hide, and had no motive whatsoever to lie. This is evidenced by 

the prosecutor's own reliance upon Evans' testimony in closing-- 

the prosecutor in this case clearly did not believe his witness 

had been impeached by the evidence of the prior convictions. 

-10< 

 



  

Napue and Giglio hold that the State may not conceal, 

. through false testimony, evidence indicative of motivation to 

lie. The undisclosed promise from Detective Dorsey is precisely 

the kind of impeachment evidence the Supreme Court in Napue and 

Giglio indicated the jury was entitled to know. 

D. Contrary To The Court's Analysis, Georgia Law 
Holds That The Admission Of A Jailhouse 
Confession, In A Primarily Circumstantial Case, 
Cannot Be Harmless. 
  

In concluding that the jury's deliberation was not 

affected by admission of Evans' testimony of McCleskey's 

jailhouse confession, the Court also relied upon Georgia law 

regarding the sufficiency of an accomplice's testimony alone to 

establish the proof of an element of the crime. 

- The Court overlooks, however, a case directly on point, 

  

Walraven v. State, .250 Ga. 401 (1982). In that case, a statement 

by an inmate that the defendant had confessed to the killing 

while incarcerated had pea improperly admitted into evidence. 

- The issue before the Georgia Supreme Court was whether that error 

required a new trial. The Georgia Court held that it did, 

concluding: | 

| . « .[S]lince the statement was direct evidence of 
appellant's guilt in a primarily circumstantial 
case, we cannot conclude its admission was 

harmless. 

  

Walraven, supra, at 406. 

Independently of this authoritative State law holding, 

wl] 

 



  

the majority's conclusion ignores the fact that the testimony 

offered by Offie Gene Evans--that McCleskey had confessed to him 

that he had ¥illed the police officer and he would have done the 

same thing if it had been twelve officers--is testimony of a 

different character than the testimony of any other witness. The 

testimony, if believed, was direct evidence of intent. If 

believed, it would have substantially altered the jury's 

deliberations. See McCleskey slip, Goldbold, Chief Judge, 

dissenting in part and concurring in part, 3-4. oe 

CONCLUSION 
  

¢ 
~ 

For all of the foregoing reasons, the Court should grant 

rehearing, and affirm the District Court decision on the Giglio 

issue. 

Respectfully submitted, 

ROBERT H. STROUP 7 
1515 Healey Building 
Atlanta, Georgia 30303 
(404) 522-1934 

J. LEVONNE CHAMBERS 

‘JAMES M. NABRIT, III 

JOHN CHARLES BOGER 

99 Hudson Street 
New York, New York 10013 

TIMOTHY K. FORD 

600 Pioneer Square 
Seattle, Washington 94305 

ANTHONY G. AMSTERDAM 

New York University Law School 
40 Washington Square South 
New York, New York 10012 

ATTORNEYS FOR PETITIONER- 

APPELLEE 

AND CROSS-APPELLANT 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day prior to filing, 

served a copy of the within "Petition For Rehearing En Banc" 

upon: 

Mary Beth Westmoreland, Esq. 
Assistant Attorney General 
132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 

counsel of record for Respondent, by depositing a copy of same in 

the United States Mail, first-class postage affixed thereto. 

This 15th day of February, 1985. 

ROBERT H. STROUP 

Attorney for Petitioner- 
: Appellee And Cross Appellant 

. : BY: TT brn Me | 
DANA E. McDONALD 
  

wv 

 



  

Huited States Court of Appeals 
ELzvENTH Circuit 

SPENCER D. MERCER OFFICE OF THE CLERK IN REPLYING. GIVE NUMBER 
CLERK 36 FORSYTH STREET. N.W. OF CASE AND NAMES OF PARTIES 

ATLANTA, GEORGIA 30303 

March 26, 1985 

TO ALL PARTIES LISTED BELOW: 

NO. 84-8176 - WARREN MCCLESKEY v. RALPH KEMP 
(DC No. 81-2434-A) 

  

The enclosed order has this day been entered on petition( ) for rehearing. 

See Rule 41, Federal Rules of Appellate Procedure and Circuit Rule 27 for 
issuance and stay of the mandate. 

Very truly yours, 

SPENCER D. MERCER, Clerk 

cc: Ms. Mary Beth Westmoreland 
v Mr. Robert H. Stroup 

Mr. John Charles Boger 

 



  

IN THE UNITED STATES COURT OF APPEADS. COURT OF APPEALS 

  

  

FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT 

LED 

No. 84-8176 | MAR 2 7 1985 

: SPENCER D. MERCER 
WARREN MCCLESKEY, CLERK 

Petitioner-Appellee, 
Cross-Appellant, 

versus 

RALPH KEMP, Warden, 

Respondent-Appellant, 
Cross—-Appellee. 

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

(March 26, 1985 ) 

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, 

KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, 

Circuit Judges. 

PER CURIAM: 

IT IS ORDERED that the petition for rehearing filed in the 

above entitled and numbered cause be and the same is hereby Doral. 

ENTERED FOR THE COURT: 

am ver 
  

UNITED STATES CIRCUIT JUDGE 

 



  

Huited States Court of Appeals 
ELEVENTH CIRCUIT 

SPENCER D. MERCER OFFICE OF THE CLERK IN REPLYING, GIVE NUMBER 

CLERK 56 FORSYTH STREET. N.W. OF CASE AND NAMES OF PARTIES 

ATLANTA, GEORGIA 30303 

March 26, 1935 

TO ALL PARTIES LISTED BELOW: 

NO. 84-8176 - WARREN MCCLESKEY v. RALPH KEMP 
(DC No. 81-2434-A) 

  

The enclosed order has this day been entered on petition( ) for rehearing. 

See Rule 41, Federal Rules of Appellate Procedure and Circuit Rule 27 for 
issuance and stay of the mandate. 

Very truly yours, 

SPENCER D. MERCER, Clerk 

uty Clerk 

cc: Ms. Mary Beth Westmoreland 
Mr. Robert H. Stroup 

Mr. John Charles Boger