Appeals Court Upholds Ruling to Outlaw Urban Renewal Bias
Press Release
September 26, 1964
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Case Files, McCleskey Legal Records. General Legal Files, 1987. 775e6284-63a7-ef11-8a69-6045bdd667da. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7a0387bb-c0e6-4a31-a760-936a4937490a/general-legal-files. Accessed August 19, 2025.
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Cos Lo: NJ. Gen Ns C37-)8 I")A nera Jul ) | 44 ) = Jan 26 |
AQ 72A
(Rev.8/82)
=" FILED IN CLERK'S OFFICE
U.S.D.C. - Atlanta
JUL 10 187
LUTHER D. THONAS\Clerk
IN THE UNITED STATES DISTRICT COUR®y: |
FOR THE NORTHERN DISTRICT OF GEORGIA Buby Clerk
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
:
VS.
3 CIVIL ACTION
NO. C87-1517A
RALPH M. KEMP, Warden,
Georgia Diagnostic and :
Classification Center, 7%
Respondent.
:
ORDER OF THE COURT
This action is before the court on petitioner's motion to
stay execution as ordered by the Superior Court of Fulton County,
Georgia. See State V. McCleskey, Case No. A-40553 (Fulton County
Superior Court, June 24, 1987). "1n order that the merits of the
petition may be satisfactorily considered, the court has deter-
mined that an indefinite stay of the execution is required. - See
Dobbert v. Strickland, 670 F.24 938 (11th Cir. 1982).
In sum, petitioner's motion for stay of execution is
GRANTED. Petitioner's exgcption is STAYED. 28 USC §2251.
~ . 7 «
SO ORDERED, this _/ day ©
Co Liiy
OWEN FORRESTER
um STATES DISTRICT JUDGE
AO 72A
(Rev.8/82)
FILED IN CLERK'S OFFICE
U.S.D.C. - Atlanta
JUL 10 187
LUTHER D. THOMAS) Clerk
IN THE UNITED STATES DISTRICT COUR®y:
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
J Clerk
WARREN McCLESKEY, :
Petitioner,
VS. 3 CIVIL ACTION
NO. C87-1517A
RALPH M. KEMP, Warden, 3
Georgia Diagnostic and
Classification Center,
Respondent.
ORDER OF THE COURT
This action is before the court on petitioner's motion to
stay execution as ordered by the Superior Court of Fulton County,
Georgia. See State v. McCleskey, Case No. A-40553 (Fulton County
Superior Court, June 24, 1987). In order that the merits of the
petition may be satisfactorily considered, the court has deter-
mined that an indefinite stay of the execution is required. See
Poebbert v. Strickland, 670 F.24 938 {11th Cir. 1982).
In sum, petitioner's motion for stay of execution is
GRANTED. Petitioner's ex tion is STAYED. 28 USC §2251.
SO ORDERED, this 7 “day of r=1987,
rs
EN FORRESTER
Bs ED STATES DISTRICT JUDGE
The Department of Lamm
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE (404) 656-3300
July 24, 1987
John Charles Boger
99 Hudson Street
New York, New York 10013
RE: Warren McCleskey v. Ralph Kemp, No. C87-1517A
Dear Mr. Boger:
As you will recall at the conclusion of the most recent hearing
in the above-styled case, Judge Forrester indicated that I
should advise you if I were going to put on evidence in the
case and, if so, to give you some notice of who I might be
going to call. This is to advise you that: 1 40 intend to put
on evidence in the matter at such time as Judge Forrester
schedules a definite hearing date. At this time, however, I do
not have a definite idea of the exact witnesses I will be
calling. I have not been able at this time to formulate a
precise witness list. I do anticipate recalling some of the
witnesses who testified in the two-day hearing before Judge
Forrester, particularly those that I did not cross-examine at
that time. There may be additional witnesses who did not
testify at that hearing, but if I make such a determination, I
will attempt to let you know as soon as I can. As I said, I
simply do not have a definite formulation at this time of the
witnesses I will call.
By copy of this letter I am also notifying Judge Forrester's
office of my intent to proceed with the evidence in this
matter. I will contact you subsequently to give you a more
definite idea of the witnesses I may call at the proceeding.
John Charles Boger
July 24, 1987
Page -2-
Respectfully submitted,
MARY BETH WESTMORELAND
Assistant Attorney General
MBW:caa
cos Rober: H, Stroup
141 Walton Street
Atlanta, Georgia 30303
Honorable J. Owen Forrester
United States District Judge
2367 U.S. Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30303
The Department of Lam
State of Georgia
Atlanta
MICHAEL J. BOWERS 30334 132 STATE JUDICIAL BUILDING
ATTORNEY GENERAL TELEPHONE (404) 656-3300
July 29, 1987
Mr. John Charles Boger
NAACP Legal Defense and Education Fund
99 Hudson Street
New York, New York 10013
Re: McCleskey v. Kemp, No. C87-1517A.
Dear Mr. Boger:
This letter is in confirmation of our telephone conversation of
July 28, 1987, regarding the above-styled case. During our
telephone conversation I informed you that counsel for
Respondent will possibly recall for cross-examination all of
those witnesses who previously testified before the Court on
July 8th and July 9th. Because witnesses Dorsey, Harris,
Parker, Jowers, Worthy and Hamilton immediately came to mind, I
specifically named these individuals. I also informed you that
our preparation for the upcoming evidentiary hearing is not yet
complete, and because we are still in the process of talking to
people the situation may very well arise where someone comes to
light who has not previously been called to testify. I advised
you that if this situation occurs, I will apprise you of the
name of such individual(s) immediately.
Immediately after our telephone conversation on July 28, 1987,
I contacted Judge Forrester's office and informed his secretary
that counsel for the Respondent did in fact desire an
evidentiary hearing, and that at present the possibility
existed that Respondent would recall all of those witnesses who
previously testified on July 8th and July 9th. I also informed
Judge Forrester's secretary that counsel for the Respondent
were still making preparations for the upcoming evidentiary
hearing and that we were not, and had not been operating under
Mr. John Charles Boger
July 29, 1987
Page -2-
the assumption that all potential witnesses not identified by
counsel for Respondent and made known to counsel for Petitioner
on or prior to July 28, 1987, could not be called by counsel
for Respondent at the upcoming evidentiary hearing. I further
informed Judge Forrester's secretary that as the names of new
potential witnesses became available I would relay that
information to you immediately. I finally requested that if
this office's understanding of Judge Forrester's intentions
with reference to the exchange of the names of witnesses was
incorrect, that I please be apprised of such as soon as
possible.
In concluding, you will also recall that I specifically
requested that if you, on behalf of Petitioner, are able to
identify any witnesses that you intend to present at the
upcoming evidentiary hearing, that you please apprise us of the
names of these witnesses as soon as they become known to you.
WILLIAM B., HILL/ JR.
Senior Assistan
Attorney General
WBH/bh
cc: Honorable J. Owen Forrester
United States District Court
2367 U.S. Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30303
| RY "FILED IN CLERK'S OFFICE
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VITTISR TA 00 nr : LUTHER D. THOMAS, Clerk
~=~""" UNITED STATES DISTRICT COURT Bd on
NORTHERN DISTRICT OF GEORGIA D- aly Deputy Cler
ATLANTA DIVISION
WARREN MCCLESKEY, *
* CIVIL ACTION NO. C87-1517A
Petitioner, *
*
V. *
* HABEAS CORPUS
RALPH KEMP, WARDEN, * 28. U.8.C. 8 2254
*
Respondent. >
ORDER
This Court having scheduled a hearing in the above-styled
action for 9:30 a.m. on Friday, August 7, 1987, and counsel for
the Petitioner having requested that the Petitioner be present
for said hearing, it is hereby ORDERED that the Respondent
produce the Petitioner, Warren McCleskey, at said time in the
eo
courtroom of the undersigned Judge in the United States
District Puy 75 Spring Street, Atlanta, Georgia.
This »=-day of August, 1987.
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1:87—Ccv—-1517
Julius L. Chambers, Esq.
NAACP Legal Defense Fund
99 Hudson Street
16th Floor
New York, NY 10013
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
-vVS- NO. C87-1517-A
RALPH M. KEMP, Warden,
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PETITIONER'S MOTION TO PROHIBIT
RECALL OF WITNESSES
Comes now the petitioner, WARREN McCLESKEY, through his
undersigned counsel, and moves the Court for an order prohibiting
the recall of witnesses W. K. Jowers, Welcome Harris, Sidney
Dorsey, and Ulysees Worthy.
In support, petitioner attaches the accompanying memorandum
of law.
Calient N
ROBERT H. STROUP 1
141 Walton Street, N. W.
Atlanta, Georgia 30303
(404) 522-8500
Georgia Bar Number 689175
JULIUS L. CHAMBERS
JAMES M. NABRIT, 111
JOHN CHARLES BOGER
99 Hudson Street
New York, New York 10013
(212) 219-1900
ATTORNEYS FOR PETITIONER
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION FILE
NO. C87=1517A
Respondent
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PETITIONER'S MEMORANDUM IN SUPPORT OF
MOTION TO PROHIBIT RECALL OF WITNESSES
This action is presently pending before the Court on
petitioner's request for habeas corpus relief. At the close
of the petitioner's clase on July 9, 1987, this Court
permitted respondent the opportunity to present a rebuttal
case, and the respondent has now elected to do that.
In Ms. Westmoreland's absence, petitioner's counsel was
advised on July 28, 1987, in a preliminary fashion that the
State would recall a number of witnesses who testified
previously. On August 4, 1987, the State advised that it's
rebuttal case would consist of recalling six law enforcement
officers or former officers involved in the investigation
and prosecution of the McCleskey case--Russell Parker, W. K.
Jowers, Welcome Harris, Sidney Dorsey, Carter Hamilton and
Ulysses Worthy. All have held positions which make them
potentially adverse to petitioner.
Petitioner objects to the recalling of Jowers, Harris,
Dorsey and Worthy. In each instance at the prior hearing,
the State had full opportunity to examine these witnesses.
They were each subjected to full, sifting examination on the
relevant matters at that time. In each instance, the State
indicated it had no questions, and did not reserve the right
to recall these witnesses.
As to Welcome Harris, the State indicated:
THE. COURT: All right. Thank you, sir.
Are you going to need to cross him?
MS. WESTMORELAND: Your Honor, we're not
going to have any questions of Detective
Harris.
(Tr., Volume 2, at 29).
Similarly with Jowers, the State advised the Court as
follows:
THE COURT: All right. Do you have any
questions of the witness or can I excuse him.
MS. WESTMORELAND: Your Honor, he may be
excused.
{(Tr., Volume 2, at 41-42).
After examination of Dorsey, counsel for the respondent
stated:
THE COURT: Do you have anything, Mary Beth?
MS. WESTMORELAND: Just one moment, Your
Honor. I don't have any questions, Your
Honor.
{Tr., Volume 2, at 69-70).
And with Worthy, respondent's counsel indicated:
MS. WESTMORELAND: Your Honor, ‘1 don't have
any further questions of Mr. Worthy.
(Tr. ¥olume 2, at 156).
The purpose 1n reconvening this matter was to hear new
evidence--not to allow these law enforcement officers the
opportunity to fashion and present a story to the Court
contrary to testimony given in July.
As this Court is well aware, the July hearings took place on
short notice. Neither party had opportunity to prepare--in
petitioner's case, even to interview--the witnesses who
testified before this Court. There was little time,
moreover, for those offficers who comprised the team who
investigated, jailed and prosecuted petitioner to confer
about their recollections of events. As a result, the
testimony was, according to the witnesses statements, what
they could remember. After this Court's indication that a
prima facie Massiah violation had been shown, subject to
rebuttal, it would be contrary to human nature to ask the
investigative and prosecutorial team centrally responsible
for the McCleskey case not to review their collective
recollections during the intervening month in a manner
prejudicial to the petitioner.
To permit them to be recalled at this point, apparently for
no reason other than to modify or revise their previous
testimony, would violate the spirit if not the letter of the rule
of sequestration and the general principle, in trials, that the
parties should examine and cross-examine witnesses on a single
occasion. To do otherwise would offer respondent a
significant and unwarranted advantage and severely prejudice
petitioner.
Conclusion
On the basis of the foregoing, this Court should not permit
the recalling of Messers. Harris, Dorsey, Jowers and Worthy.
Respectfully submitted,
Rederx XN. Deep,
ROBERT H. STROUP y
141 Walton St., N.W.
Atlanta, Georgia 30303
Georgia Bar No. 68$175
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
JOHN CHARLES BOGER
99 Hudson St.
New York, N.Y. 10013
ATTORNEYS FOR PETITIONER
Bad
CERTIFICATE OF SERVICE
1 hereby certify that 1 have this day prior to filing,
served a copy of the within Motion and Memorandum 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 5th day of August, 1987.
Vober
ROBERT H. STROUP!
UNITED STATES DISTRICT COURT
NCRTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner,
CIVIL ACTION NO. C87-1517A
Vv.
HABEAS CORPUS
RALPH KEMP, WARDEN, 28 U.85.Cy § 2254
*
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Respondent.
RESPONSE TC PETITIONER'S MOTION
TO PRCHIBIT RECALL OF WITNESSES
Comes now Ralph Kemp, Warden, Respondent in the
above-styled action and submits the instant response to
Petitioner's Motion to Prohibit Recall of Witnesses. In this
motion, Petitioner has, without citing any authority
whatsoever, urged this Court to not allow Respondent to call
the witnesses Respondent has designated in the presentation of
Respondent's case. Respondent would submit that this motion is
totally frivolous and the only response deemed necessary is to
note that Petitioner has rested his case and Respondent has not
yet had the opportunity to present any witnesses in this matter
and should certainly be allowed to call whichever witnesses are
necessary for presentation of the Respondent's case.
WHEREFORE, Respondent prays that the instant motion be
denied.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION OC. GORDON 302300
First Assistant Attorney General
{
JHILLL M B. Lone Bobi 354725
Senior ‘*Assistan Ry rney General
‘MARY /[BETH Les 750150
Assigtant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
I cdo hereby certify that I have this day served
the within and foregoing response, prior to filing the
same, by depositing a copy thereof, postage prepaid, in
the United States Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street, N.W.
Atlanta, Georgia 30303
John Charles Boger
99 Hudson Street
New York, New York 10013
This (MA day of August, 1987.
A oadite 42 L
“eka WESTMORELANY
ant Attorney Ys Assi
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
-yvs- NO... C87-1517A
RALPH M. KEMP, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
PETITIONER'S MOTION TO EXCEED PAGE LIMIT
Comes now the petitioner, WARREN McCLESKEY, and moves the
Court for permission to exceed the page limits set in the Court's
Tebeort MH. Stree,
ROBERT H. STROUP v
141 Walton Street, N. W.
Atlanta, Georgia 30303
(404) 522-8500
Georgia Bar No. 689175
Case Instructions, 42.
JOHN CHARLES ROGER
99 Hudson Street
New York, New York 10013
ATTORNEYS FOR PETITIONER
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner, CIVIL ACTION FILE
-VS~ NO. C87-1517A
RALPH M. KEMP, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent.
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PETITIONER'S MEMORANDUM IN SUPPORT OF
MOTION TO EXCEED PAGE LIMIT
The petitioner, WARREN McCLESKEY, has filed a motion to
exceed the Court's 25-page limitation on his brief on the merits
in the above-captioned action. In support of his motion, he
shows that the additional pages are necessary to deal with the
issues presently pending before the Court.
Respectfully submitted,
Feseax Broun
ROBERT H. STROUP
141 Walton Street, N. W.
Atlanta, Georgia 30303
(404) 522-8500
Georgia Bar No. 689175
JOHN CHARLES BOGER
99 Hudson Street
New York, New York 10013
{212): 219-1900
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that I have this day prior to filing,
served a copy of the within Motion and Memorandum 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 causing a copy of same to be
delivered by hand to said counsel at the above address.
This 9th day of September, 1987.
Tabet NM. Ro ag = PPI
ROBERT H. STROUP
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA.
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner,
CIVIL ACTION NO. C87-1517A
I
RALPH KEMP, WARDEN,
*
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Respondent.
BRIEF IN SUPPORT OF REQUEST FOR EXTENSION
At the conclusion of the hearing in the above-styled
action, this Court granted Petitioner thirty days in which to
file a brief in this action and the Respondent two weeks from
the ‘£iling of Petitioner's brief in which to file a response.
Respondent received Petitioner's brief on September 9, 1987.
On that same day, the Superior Court of Fulton County set an
execution date in the case of Timothy W. Me orauodile a case
which is pelng handled by present counsel. Since the time of
the scheduling of hit execution date, present counsel has been
working almost continually on that case including litigation in
state and federal courts. In fact, counsel worked all day
Saturday, September 19, 1987, preparing responsive pleadings to
be filed in the United States Court of Appeals for the Eleventh
Circuit. Due to the intervention of this execution which is
presently scheduled for September 21, 1987, counsel has had
inadequate time to review the record and prepare a brief for
this Court in the instant case. In addition , counsel also
argued a death penalty case in the Georgia Supreme Court on
September 9, 1987, and had to be in Macon for a hearing on a
federal habeas corpus case on September 11, 1987.
This morning counsel contacted Robert Stroup to obtain his
position on a request for a short extension. Mr. Stroup
indicated that he was unable to agree to an extension and that
he and Mr. Boger had previously discussed the matter and felt
that an extension would not be in their client's best
interest. Mr. Boger is presently counsel in the McCorquodale
matter and counsel in this action did not know where to reach
Mr. Boger.
Counsel feels that due to the unusual circumstances
involved, a short extension is justified. Counsel is only
asking for a total of five days to and including September 28,
1987. Counsel is not requesting this extension for purposes of
delay, but in fact agrees that expeditious review is beneficial
to both parties; however, counsel feels unable to adequately
prepare a brief for the court in the time period remaining.
WHEREFORE, counsel prays that this Court grant Respondent
until September 28, 1987, i
action
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
n which to file a brief in this
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION O. GORDON 302300
First Assistant Attorney General
Lc lg 5, HI ns
WILLIAM B. HILL, JR. U/. 354725
Senior Assistant Attorney General
MARY /BETH WESTMORELAND 750150
Assistant Attorney General
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing brief, prior to filing the same,
by depositing a copy thereof, postage prepaid, in the
United States Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street, N.W.
Atlanta, Georgia 30303
John Charles Boger
99 Hudson Street
New York, New York 10013
/
This Rein day of September, 1987.
ETH WESTMORELAND
Assistant Attorney General
IN CLERK'S OFFICE | / |
ED Aiud f k£
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Hib SEP 2 1 1987
HN 02 i» i
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UNITED STATES DISTRICT COURT By/| / i
NORTHERN DISTRICT OF GEORGIA 78 = Deputy Clerk
ATLANTA DIVISION
WARREN MCCLESKEY, *
*
Petitioner, *
* CIVIL ACTION NO. C87-1517A
Vv. *
*
RALPH KEMP, WARDEN, *
*
Respondent. *
MOTION FOR EXTENSION OF TIME
comes now Ralph Kemp, Warden, Respondent in the
above-styled action, by counsel, Michael J. Bowers, Attorney
General for the State of Georgia, and makes the instant request
for an extension of time in which to file a brief on behalf of
the Respondent. Respondent's brief is presently due on
~ September 23, 1987. For the reasons set forth in the brief
3) submitted contemporaneously with this motion, Respondent
N
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James M. Nabrit III, Esq.
NAACP Legal Defense Fund
99 Hudson Street
16th Floor
New York, NY 10013
1:87-cv=1517
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
2211 UNITED STATES COURTHOUSE
75 SPRING STREET, S. W.
ATLANTA, GEORGIA 30335
OFFICIAL BUSINESS
PENALTY FOR PRIVATE USE $300 POSTAGE AND FEES PAID
UNITED STATES COURTS
usc 426
UNITED STATES DISTRICT COURT
for the
NORTHERN DISTRICT OF GEORGIA
Julius L. Chambers
NAACP Legal Defense Fund
99 Hudson Street
16th Floor
New York, NY 10013
Re: 1:87-cv—-1517-J0OF McCleskey —v—- . Kemp, etal
1:87-¢cv-2071-ODE McCorgquodale —v— Remp
NOT 1 CF
Our records reflect you to be an attorney of record in the above
styled civil case(s). Effective January 1, 1988, all civil cases filed
in this district shall be assigned a case number which will identify it
as a civil case, designate the year and numerical sequence in which it
was filed, and include a three—-initial suffix indicating the district
judge to whom the case is assigned. Local Rule 200, as amended, requires
that all papers in new or pending cases presented to the clerk or judge
for filing and all case—related correspondence shall have typed thereon
the assigned civil case number including the three—initial suffix. Any
document presented for filing which fails to include the complete civil
case number including suffix will not be accepted for filing.
Our office 1s being reorganized such that a single docket clerk
will have responsibility for all cases assigned to an individual judge.
The new case number will allow immediate identification of the judge to
whom the case is assigned. We feel that this reorganization will assist
us in improving our service to the bar.
Luther D. Thomas
Clerk of Court
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN MCCLESKEY,
Petitioner,
CASE NO, 1:87-cv-=1517-J0F
Ve
HABEAS CORPUS
RALPH M. KEMP, WARDEN, 28 U.S.C. § 2254
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Respondent.
BRIEF IN SUPDORT
OF MOTION TO STAY JUDGMENT
Comes now Ralph Kemp, Warden, Respondent in the
above-styled action, and submits the instant brief in support
of his motion to stay the judgment of the court, showing and
stating the following:
On December 23, 1987, this Court entered an order reversing
Petitioner's conviction and sentence for the conviction of
murder imposed in the Superior Court of Fulton County,
Georgia. In said order granting habeas corpus relief, the
court specifically directed that relief be granted absent a
retrial of Petitioner within 120 days from the receipt of said
order.
On this date, counsel for the Respondent has filed a timely
notice of appeal indicating Respondent's intention to appeal
the decision of this Court to the Eleventh Circuit Court of
Appeals. In the order granting relief, the court set a time
period of 120 days for a new trial, which time period would
necessarily expire prior to the completion of the appellate
process. For the Respondent be able to effectively pursue and
complete litigation through the appellate process, and to
preserve the rights of all parties involved, Respondent feels
that it is necessary that this Court's judgment of December 23,
1987, be stayed until the completion of the aforementioned
process and the issuance of the mandate by the Eleventh Circuit
Court of Appeals,
WHEREFORE, Respondent requests the stay of this Court's
judgment of December 23, 1987, until the issuance of the
mandate of the Fleventh Circuit Court of Appeals and until said
mandate is made the judgment of this Court, thereby completing
the appellate process. This request is made in order to fully
protect thei rights of all parties involved.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION O. GORDON 302300
First Assistant Attorney General
i
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S.
Atlanta, Georgia 30334
(404) $56~3349
WwW.
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Willan [3 LU, Oy. p23
WILLIAM B. HILL, JR. 7 7 354725
Senior Assistant Attorney General
ESTMORELAND 750150
Assigtant Attorney General
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing brief, prior to filing the same,
by depositing a copy thereof, postage prepaid, in the
United States Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
John Charles Boger
99 Hudson Street
New York, New York 10013
This oa day of January, 1988.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
; WARREN MCCLESKEY,
Petitioner,
CASE NO, 1:87-cv-1517-J0OF
i Vo
: HABEAS CORPUS
RALPH M. KEMP, WARDEN, 28"0.5.C, § 2254
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MN
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XX
*
*
Respondent.
MOTION TO STAY JUDGMENT OF THE COURT
Comes now Ralph M. Kemp, Warden, Respondent in the
aove-styled action, by counsel, Michael J. Bowers, Attorney
General for the State of Georgia, and submits the instant
motion to stay the Sudden of this Court entered in the
above-styled action on December 23, 1987. In support of said
motion, Respondent states that Respondent is filing on this
date a notice of appeal to the United States Court of Appeals
for the Eleventh Circuit challenging the decision of this Court
entered on December 23, 1987. For these reasons and the
reasons set forth in the brief attached to the instant motion,
Respondent prays that this Court enter an order staying the
judgment of the court until such time as Respondent can
complete litigation of the appellate process and the mandate
issues from the Eleventh Circuit Court of Appeals and is made
the judgment of this Court.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION O. GORDON 302300
First Assistant Attorney General
it LA koran 2B: sill Cvs
WILLIAM B. HILL, JR. {754725
Senior Assistant Attorney General
|
i
1
BETH WESTMORELAND
Assil@tant Attorney General
750150
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing motion, prior to filing the same,
by depositing a copy thereof, postage prepaid, in the
United States Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
John Charles Boger
99 Hudson Street
New York, New York 10013
This (94) day of January, 1988,
al WE STMORELAND /
Asdgji/stant Attorney General
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
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: WARREN MCCLESKEY,
3
I v.
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RALPH M. KEMP, WARDEN,
Petitioner,
CASE NO. 1:87-cv-1517-J0OF
HABEAS CORPUS
28. U.8.C. 8.2254
*
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Respondent.
NOTICE OF APPEAL
Notice is hereby given that the above-named Respondent, by
counsel, hereby appeals to the United States Court of Appeals
for the Eleventh Circuit from the order and judgment rendered,
made and entered in the abiva styled case on December 23, 1987,
granting Petitioner habeas corpus relief as to the Petitioner's
conviction and sentence for murder imposed in the Superior
Court of Fulton County, Georgia.
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l
The clerk will please prepare and transmit the entire
record, including all transcripts 'and exhibits, omitting
nothing from the record on appeal.
This _ {$44 day of January, 1988.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION O. GORDON 302300
First Assistant Attorney General
SA Eta eo /2. MAU, Sp 275
WILLIAM B. HILL, JR. +7 ’ 354725
Senior Assistant Attorney General
3
Whee fiers [rls ovivee br id.
i WESTMORELAND 750150
Assigtant Attorney General
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing notice, prior to filing the same,
by depositing a copy thereof, postage prepaid, in the
United States Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
John Charles Boger
99 Hudson Street
New York, New York 10013
This AIA day of January, 1988.
BETH WESTMOR
FILED IN CLERK'S OFFICE
U.S.D.C. - Atlanta
JAN 211983
LUTHER DQ. THOMAS, Clerk
IN THE UNITED STATES DISTRICT COURT | )\ /
FOR THE NORTHERN DISTRICT OF GEORGIA™™ Deputy Clerk
ATLANTA DIVISION ;
WARREN MCCLESKEY,
Petitioner,
CASE "NO. ‘1:87-cv-1517
-J0OF
VS,
RALPH M. KEMP, WARDEN,
Respondent.
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”
NOTICE OF CROSS-APPEAL
Notice is hereby given that WARREN MCCLESKEY, in forma
pauperis petitioner herein, hereby appeals to the United
States Court of Appeals for the Eleventh Circuit from the
order and judgment entered in this action on December 23,
1987, and from all other orders, written and oral, entered
by the Court in this action.
This 21st day of January, 1988.
Respectfully submitted,
ROBERT H. STROUP
Georgia Bar No. 689175
141 Walton St., N.W.
Atlanta, Georgia 30303
(404) 522-8500 FORMATE
aa I Ls : fring fee 9. TT JULIUS L. CHAMBERS
Boriet Tee JAMES M. NABRIT, III
= SEER. mee" JOHN CHARLES BOGER
B NO 99 Hudson St.
summoner New York, New York 10013
ATTORNEYS FOR PETITIONER
By: Robert XN Benbees
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
2211 UNITED STATES COURTHOUSE
75 SPRING STREET, S.W.
ATLANTA, GEORGIA 30335
OFFICIAL BUSINESS
PENALTY FOR PRIVATE USE $300
J
UNITED STATES DISTRICT COURT oor 1]
NORTHERN DISTRICT OF GEORGIA ._ Rae I]
ATLANTA DIVISION A 28 ie i
Id Jf ap. NLS
Yi} W LLL / 3
/ / i A N 2 le) 1G On hi
Warren McCleskey : Beles Sy ng voo 111
. Petitioner : Bots ANY le aac 11
“a i SA i J Sia
vs. CIVIL ACTION NO. “}:87-Cv=1517-JOF
Ralph M. Kemp, Warden
Respondent
JUDGMENT
The Court, Honorable J. OWEN FORRESTER » United States
District Judge, by order of this date, having GRANTING the petition for
a writ of habeas corups, DIRECTING, the petitioner to re-try defendant
within 120 days from receipt of the 12/23/87 order.
petitioner
JUDGMENT is hereby entered in favor of the XEXEORgent{s and
against the ¥ERARARHERLERX
Dated at Atlanta, Georgia, this 15 day of January , 1988,
with permission of the court Nunc pro tunc for December 23, 1987.
LUTHER D. THOMAS, Clerk
= To
Deputy (lerk
FILED AND ENTERED
IN CLERK'S OFFICE
D. THOMAS, Clerk
Deput Ny:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY, 3
Petitioner, :
Vs. : CIVIL ACTION
NO. C87-1517Aa
RALPH M. KEMP, Superintendent
Georgia Diagnostic and
Classification Center, :
Respondent.
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,’ 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 equal
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); (2) 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
AOT2A ©
(Rev. 8/82)
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 SOZDUS 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 in Part IV (the Giglio,
intentional discrimination, and Ake claims) and then. the new
claims in Part V (the Massiah, Mcoray, Caldwell, and Batson
claims). Finally. in Part VI, the ccurt will 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.
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 nor hearing has ever been held on that
motion. On January 5, 198l:the petitioner filed a petition for
writ of habeas corpus in the Butts County Superior Court. On
April 8, 13981, that court 8enied 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, 1881. This court held an evidentiary
hearing in August and Octolter 1983 and granted habeas corpus
relief on one issue on February 1, 1984. McCleskey v. Zant, 580
F. Supp. 338 (N.D.3a. 1984): The Eleventh Circuit reversed and
denied the habeas corpus petition on January 29, 1585. McCleskey
v. Kemp, 753 F.2d «77 (llthiCir. 1985) (en banc). Th.s time the
» 107 S.Ct. 1756, petitiol for rehearing denied, U.S.
United States Suprame Court granted certiorari and aifirmed the
Eleventh Circuit ou April 22, 1987. McCleskey v. Keim, 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 go the Petition on June 22,
1987 (Civil Action No. 87=V-1028). That court granted the
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, 19287 (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. Those briefs have since been filed and the petitioner's
claims are ripe for determination.
III. THE DOCTRINE OF FINALITY IN HAEZ:S CORPUS PETITIONS.
Although successive petitions Ror 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 (llth Cir. 1982). In particular, Congress has authorized
‘the federal courts to decline to address the merits of a petition
AQT2A © -4- :
(Rev. 8/82) 2 : !
TA YY tt te er re——r TT ——— or in or Tr re ? YE r——— SR AS Ta So EET GE ori? Si oh TR ST A a ae SOME re ' : by 2
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, 1f 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 foll. §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 (llth
Cir. 1986). Rule 9(b) requires that the issue raised by the
previous petition must have been decided adversely to the
petitioner on the meriis 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 tlie 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 foll. §2254, Rule 9(b). The state: has
a Sms ail
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
‘vv. Johnston, 334 U.S. 266, 292-93 (1948); see also Allen v.
Newsome, 795 F.2d 934, 938-39 (llth Cir. 1986). To meet his
burden, a petitioner must "give a good excuse for not having
raised his claims previously." Allen. 794:F.24 at: 939, 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 (llth Cir. 1987) (citations omitted). See also Moore
v. Kemp, 324 F.24 847, 831 (llth Cir. 1987). There are a number
of instances in which failure to raise an issue in. a prior
petition 1s excusable. "A retroactive change i: the law and newly
discover:1 evidence are examples." 28 USC foll. §2254, Rule 9
Advisory Committee Notes. See, e.g., Ritter v. Thigpen, 828 F.2d
8662, 663 (llth Cir. 1987); Adams, 816 P.2& at 1495. Of course,
failure to discover evidence supportive of a claim prior to the
first petition may itself constitute inexcusable neglect or
deliberate bypass. Cf. Freeman v. Georgia, 599 F.2d 65, 71-72
(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) .?
"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 (llth 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 hea: ing upon a showing
that the evidentiary hi:aring 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 -11963)1, "=mna 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 faiied
.to raise a crucial point or argument in the
prior application. ess . [IPlhe foregoing
enumeration is not intended to be exhaustive;
the test is "the ends of justice" and it
cannot be too finely particularized.
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.8.... 45106 8.Ck,
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, petitions 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 Bectns 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, 38
U.Chi.L.Rev. 142 (1970)).
‘Following Kuhlmann, iil 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
Se
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(Rev. 8/82)
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 deti+
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 promi:e by a police
detective to "speak a word" for Offie Evans witt regard to an
escape charge violated McCleskey's due proces: rights under
Giglio v. United States, 405 U.S. 150 (1971). Giglio hela that
failure to disclose the possible interest of a SovataRent 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
CC AQTA ©
(Rev. 8/82)
relief on this claim in passing upon the first federal habeas
petition, but the Eleventh Circuit reversed en banc. McCleskey
Vv. Zant, 580 F. Supp. at 380-84, rev'd sub nom. McCleskey v.
Kemp, 753 F.2d at 88S,
‘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 Giglio claim. The written statement of Offie Evans offers no
new evidence of an agreement by state authorities to do Offie
Evans a 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.
<lQ~
AOTZA ©
{Rev. 8/82)
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
jurors 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. BR. Evid. 606(b); Proffitt v. Wainwright, 685
F.24 1227,°1255 {llth 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.qg., United States v. Burroughs, No.
86-3566, Slip Op. at 381 (llth Cir., Nov. 3, 1987); Brown, 785
F.2d at 1464 (citing McCleskey v. Kemp, 752 F.Z4 ar 88%).
B. Intentional Discrimination Claim.
Having lost# in the Supreme Court3 on i'is 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.
-11l- /
A 8 tT A A SN 3 ETS WT BY pg pe Try re nn mye
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 ---4id not
adduce one smidgen of evidence that the race of the defendants or
the sacs 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 te 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 jurcrz on
SE ——— —————— ser vee mm mr mT TT Ty ra r ro r oe oi Y po %
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 Moore v. Zant,
722 P.2d 640 (11th Cir. 1983)). At that time the law held that
the appointment of experts was generally a matter 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 AOT2A © : ~13=~
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 (llth
Cir. 1987).
Even so, this new law does not Juseicy 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 bcth 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 infcrm the court of the nature of the proRecutiontsicase 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.
SL
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.
l, Pindings of Pact.
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 on July 9 and August 10, 1987. The court will
set out the pertinent parts of that testimony and then summarize
the information it reveals.
On July 9, Worthy testified as foll:ws: He recalled
"something being said" 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).
hy Be
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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 (1Id.); "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
SIG
SS era a —.— Tre —— TT Ta CE a EOL Wh ge Te 8 Ee Tet st EAN Sh CC A
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a EI 1 TNS
another" (III Tr. 18). Worthy was pAb gists” ho asked, "but it
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'
theetview with the! investigators (111 Tr. 20). This was the
first and only time Worthy was asked to move Evans (I&8.). Deputy
Hamilton would have been "one of the ones" to physically move
Evans (III Tr. 22). Worthy dia 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 vege present (III Tr. 32-33). Evans requested
permission to call the investigators after he was asked to engage
in conversatior 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
“17
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 As 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
(X11 Tr. 56).
In response to questions from the court, Worthy stated shat
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 some
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 what
McCleskey had been saying, and that he had been asking McCleskey
questions (III Tr. 64). ; | : :
In summary, Worthy never wavered from the fact that someone,
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 . AOT2A © -18~
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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
Officer Dorsey's role in requesting the move, on whether Deputy
2amiiten 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 ROW aYs 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. 11X3=14:"71-72).
Petitioner also relies on Evans' twenty-one 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 Rinse LE 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 zo 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.
S 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
publ:c at that time. Finally, McCleskey points to two additional
pieces of evidence ibout Evans' relationship with the police:
Evan: testified at McCleskey's trial that he had talked to
Detective Dorsey about the case before he talked to Assistant
District Attorney Parker (Pet. Exh. 16 at 119); and Evans had
acted as an informant for Detective Dorsey before (II Tr. 52-3).
“The factual faite 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
de
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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
confused and self-contradictory, it is directly contrary to the
gestinony 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
{II Tr. 13-147. 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 carefully coasidering the substance of Worthy's
testimony, his demeanor, and the other re:evant evidence in this
case, the court concludes that it cannot reject Worthy's testi-
mony about the fact of a request to move Offie 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- 7
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-*
anh Worthy, by contrast, had no apparent interest or bias that
would explain any conscious decepilisn. 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 PeTDettators.
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; 1.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, hut
neither is tenable. First, the request to move Evans could have
come following Evans' meeting with Assistant District Attoiney
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, thac
i” 2 ;
—_— Ll EE - ——_—__ a Ee ee Te Ta rg rm a TY RT I TE i Mr Fp Tl cv
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. a
The state argues that petitioner's Massiah dibin in this
t.econd fzaderal habeas petition is an abuse of the writ because he
. -htentionally abandoned the claim after his first state habeas
F@tition and because his failure to raise this claim in his first
federal habeas petition was due to inexcusable neglect. As was
i Nted earlier, the burden is on petitioner to show that he has
Allen, 795 F.2d at 938-39. The court
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
ungware 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
Vv, Noia, 372 U.S. 391, 439 (1963), quoted in Potts v, Zant, 638
F.24 727, 743 (5th Cir. 1981), Petitioner's Massiash 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 eirlier considered withnut merit. Cf. Booker v. Wain-
wricnt, 764 P.24 1371, 1377 (lls; Cir. 1985).
Second, petitioner's failure to raise this claim in his
first federal habeas petition was not due to his inexcusable
neglect. When the state alleges inexcusable neglect, the fous
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
i,
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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 eine 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 Wot thy § 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 Jorsey and
Deputy Rami leon, 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 (llth Cir. 1986) (remanding for evidentiary hearing on
«25
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TE —— a
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. 13.
3. Conclusions of Law.
The Eleventh Circuit recently summarized the petitioner's
ourden in cases such as this:
In order to establish a violation of the
Sixth Amendment in a jailhouse informant
case, the accused must show (1) that a fellow
inmate was a government agent; and (2) that
the inmate deliberately elicited incrim-
inating statements from the accused.
Lightbourne v. Dugger, 829 F.2d 1012, 1020 (llth 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
B.S. 201 (1964). In that case, the defendant's confederate
4
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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
festified about the defendant's statements at the defendant's
trial, rhe 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." 1&4. 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 recarding the defendant's in-
dictment for bank robbery. The innate engaged the defendant in
conversaticns 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. ar: 271..1¢
ry 0
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was held irrelevant under Massiah 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 fnmatets 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 Wnsuspesting
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 Massiah violation here. It is clear from Evans’
written statement that he did much more than perely 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.
’
2
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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 Massiah ... mandates 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. Havies, 471 F.2d 788, 793, cert. denied, 411 U.s. 969 (Sth
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 owr
inc.'iminating 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 (llth 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
i
reveals that Evans' testimony about the petitioner's incrim-
inating statements was critical to the state's case. Phere 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.8 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 ¢uilt.
For the foregoing reasons, the court concludes that peti-
tioner's sixth amendment richts, as interpreted in Massiah, were
violated by the use at trial of Evans' testimony about She
petitioner's incriminating ui:atements 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~
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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
tl.e 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 taat the state failed to correct Evans’
misleading testimony regarding his real interest in testifyinc
against petitioner, regarding the circumstances surrounding his
cooperation with the state, and regarding petitioner's confessio-~
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.
’
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 Giglio 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 Massiah 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 earlier.
However, on its merits the claim itself is unavailing. In
order to prevail on this 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
(llth Cir. 1986). The test for materiality is whether there is
"any reasonable likelihood that the false testimony could have
3
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affected the judgment of the jury." Id. at 1465-66 (quoting |
United States v. Bagley, Ui 8. s 108: 8.0. 3378, 3332
(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 sentencirg 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
MH
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 (llth 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 recoarized the
potential for such a claim when passing upon the first federal
habeas petition and concludasd "it has not been raised by fully
competent counsel." McCleskey v. Kemp, 580 F. Supp. ~t 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 -
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{R2v. 8/82)
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, 7088.24 349,857 (1leh Cir. 1982)). Petitioner has
of Fetied 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
2lsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328-29
{1985). This circuit has recent'y held that failure to raise a
caldwell claim in a first feder:l habeas petition filed before
the decision does not amount to ibuse of the writ because there
1as been a change in the substantive law. Adams v. Dugger, 816
F.2d 1493, 1495-96 (llth 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
-3Be
RS
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
would 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 FP. Supp. at 388,
D. Batson Claim.
Petitioner's final claim rests upon the alleged systematic
exclusion of black jurors by the prosecutor at petitioner's
trial. This exclusion is said to have violated petitioner's
right to a representative jury as guaranteed by 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 Vv. Eentucky, UeS. 107 S.CL.
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
ralse 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” Pefors 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 petitioner subject to the death
penalty. See lindsey v. Smith, 820 F.2d 1137, 1145 (llth Cir.
1987); High v. Remp, 819 F.2d 988, 992 (llth Cir. 1987).
VI. OTHER MOTIONS.
Also sending before this court ats 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 AOT2A © - . =37-
. (Rev. 8/82) :
EN DO PW Pr A Pn he 1 ee Hf A ARE 4) AR NAR
°
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.
Vil. 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 days 7 the receipt of this order.
SO ORDERED, tais Z 3-day of Jere, 1987.
TED STATES DISTRICT JUDGE
«3B
FOOTNOTES
1 petitioner was also convicted on two counts of armed robbery
and sentenced to two consecutive life sentences.
2 ‘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 (llth 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 it
applies only when the petitioner appeared Pro se in presenting
the first habeas petition. See, e.g., Haley v. Estelle, 632 F.2d
1273, 1276, {5th Cir. 1980).
3 "... [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, B.S. r. 107 8. Clu 1789 at
1778 (1987).
4 See the discussion of McCleskey's Massiah claim infra.
5 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.
6 Dissenting Justice White, joined by Clark and Harland, Pr
protested the new "constitutional rule ... barring the use of
evidence which is relevant, reliable and highly probative of the
issue which the trial court has before it." 377 U.S. at 208. The
dissenters were "unable tc see how this case presents an un-
constitutional interference with Massiah's right to counsel.
Massiah 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
presences.” 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.
7 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 Massiah, 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 Massiah were encouraged to elicit
information from the respective defendants, Justice Rehnquist
"doubt[ed] that most people would find this type of elicitetion
reprehensible.” Id. at 297.
For criticism of Henry for extending Massiah "despite that
decision's dcctrinal 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 0.C.G.A. §24-4-8 (un-
corroborated 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).
ii.
FAQ T2A ©
(Rev, 8/82)
y Here, as in Massiah and Henry, the evidence is excluded and
the conviction consequently reversed despite the fact -that the
evidence is "relevant, reliable and highly probative" of peti-
tioner's guilt. Massiah, 377: 0.8. ar 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. ;
iii a Fe