Reply Brief for Petitioner

    No. 89-7024 

  
  

In The 

Supreme Court of the United States 
October Term, 1990 

o 
v   

WARREN MCcCLESKEY, 

Petitioner, 

VS. 

WALTER D. ZANT, SUPERINTENDENT, GEORGIA 
DIAGNOSTIC & CLASSIFICATION CENTER, 

Respondent. 
b- 
v   

On Writ Of Certiorari To The United States 

Court Of Appeals For The Eleventh Circuit 
é 
vw   

REPLY BRIEF FOR PETITIONER 
WARREN McCLESKEY 

é 
v   

JuLius L. CHamBERs, III RoBert H. STROUP 
RicHarD H. Burg, III 141 Walton Street 
GEeorGe H. KENDALL Atlanta, Georgia 30303 
99 Hudson Street (404) 522-8500 
New York, New York 10013 *JouN CHARLES BOGER (212) 219-1900 

School of Law, CB# 3380 
ANTHONY G. AMSTERDAM Van Hecke-Wettach Hall 
New York University Chapel Hill, North 
School of Law Carolina 27599 
40 Washington Square (919) 962-8516 

South 

Ne York New ork toor2 {rn Jr tone 
(212) 998-6198 Y 

*Attorney of Record 

  
  

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831  





TABLE OF CONTENTS 
Page 

The State’s Attempt To Sweep Aside Factual 
Findings Made By The District Court After A 
Full Evidentiary Hearing Should Be Rejected. . 

A. The District Court’s Purported “Change Of 

B. 

C. The Testimony Of Ulysses Worthy 

Amadeo v. Zant Controls The Abuse Issue On 
Petitioner's Appeal. None Of The District 
Court’s Factual Findings On Abuse Were 
“Clearly Erroneous” 

For “Deliberate Bypass” Purposes, What Counts 
Is Not Solely Counsel’s Awareness Of The Legal 
Basis For A Claim, But Counsel’s Awareness Of 
Facts That Would Support The Claim 

The Call To Fashion A New Judicial Standard 
For Judging Successive Habeas Claims Should 
Be Rejected 

Petitioner McCleskey Is Entitled To Relief On 
The Merits Even Under A “Cause” and “Preju- 
dice” Standard 

CONCLUSION 

 



  

ii 

TABLE OF AUTHORITIES 

Page 

CAsks 

Amadeo v. Zant, 486 U.S. 214 (1988)..9, 10, 11, 18, 19, 20 

Anderson v. City of Bessemer City, 470 U.S. 574 

(I Ry rr cnvrrrn rc sir rnrsasa Naa 9H, 13 

Ciucci v. Illinois, 356 U.S. 571 (1958) (per curiam) ..... 9 

Ex parte Cuddy, 40 F. 62 {1889)..................... 16 

Giglio v. United Siates, 405 U.S. 150 (1972)........... 19 

Mageio v. Fulford, 462 US. 111 (1983) ........c.u... 11 

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

Price v. Johnston, 334 US. 266 (1948) ............ 14, 15 

Salinger v. Loisel, 2656 US. 224 (1924)................ 14 

Sanders v. United States, 373 U.S. 1 (1963)....1, 13, 18 

United States v. Henry, 447 U.S. 264 (1980). ...... 18, 19 

United States v. Johnson, 713 F.2d 633 (11th Cir. 
LID ER GRRE FE EE MR 9 

Wainwright v. Sykes, 433 US. 72 (1977).......... 10, 18 

Wong Doo v. United States, 265 U.S. 239 (1924) ..14, 17 

STATUTES 

BUSC. 82244) ..............oconeiviiiiis, 17, 18 

Rule 10(e), Fed. R. App. P...........coivniinvnnn in 9 

Rule 52, Fed. R.Civ.P ...................... 2,6 9 11 

Rule), Fed. R Civ. PP .............................. 9 

Rule 9(b), Rules Governing Section 2254 Cases...... 17 

 



iii 

TABLE OF AUTHORITIES - Continued 
Page 

OTHER AUTHORITIES 

H.R. Rep. No. 94-1471, 94th Cong., 2d Sess. (1976) .... 18 

S. Rep. No. 1797, 85th Cong., 2d Sess. (1966)........ 17 

 



    
   



This is petitioner's reply to the Brief for the Respon- 
dent (hereinafter “the State”) and the Brief Amicus Cur- 
iae of the Criminal Justice Legal Foundation (hereinafter 
“the Foundation”).? Although these two briefs adopt dif- 
ferent approaches, their pages share a common thread: 
the desire to divert this Court's attention from the factual 
findings of the District Court, and from the settled legal 
significance of those facts. 

The State urges this Court to reconstitute itself as a 
nisi prius tribunal: to ignore the District Court’s findings, 
indeed to ignore even findings by the Court of Appeals 
that displease the State, and to reweigh the credibility of 
each witness for itself. The Foundation’s approach is 
different. Rather than dwell upon the facts, it urges the 
Court to reconstitute itself a legislative tribunal. Dismiss 
the common law heritage, it argues; “[tloday’s writ . . . is 
a different procedure with a different purpose.” (Fnd. Br. 
3). Forget or distort this Court's prior federal decisions; 
they are distinguishable, or like Fay, “a dead letter.” The 
Court’s leading precedent, Sanders v. United States, is 
mere “dictum . . . hitched . . . to a broken post,” (Fnd. Br. 
26); Congressional intent, no more than “murky waters” 
where the Foundation finds very “little light.” (Fnd. Br. 
22). This approach is, of course, a siren’s song: attractive 
but fatal. It calls on the Court to abandon its judicial role 
in habeas cases. 

In this reply, we will first undo the State’s chief 
mischief — its attempt to obscure and disparage the fac- 
tual findings made by the District Court. Two principal 
areas deserve attention: (i) the District Court’s findings in 
support of a Massiah violation; and (ii) the District 
Court’s findings on petitioner's efforts to uncover that 

  

! Each reference to the State’s brief will be indicated by 
the abbreviation “St. Br.” followed by the number of the page 
on which the reference may be found. References to the Foun- 
dation’s brief will be indicated by the abbreviation “Fnd. Br.”  



    

2 

violation. We will then briefly address the State’s disin- 
genuous reformulation of the standards for judging abuse 
and its recasting of this Court’s pronouncements on Rule 
52(a). Finally, we will consider the Foundation’s nihilistic 
call to discard the legal past and declare a new, free-form 
law of abuse. 

I 

THE STATE'S ATTEMPT TO SWEEP ASIDE FACTUAL 
FINDINGS, MADE BY THE DISTRICT COURT AFTER 
A FULL EVIDENTIARY HEARING, SHOULD BE 
REJECTED 

The State launches three attacks against the District 
Court’s factual findings on the Massiah violation. First, it 
works to portray the District Court as confused and 
capricious, reaching “two different conclusions” on the 
merits and (St.Br. 29), “simply chang[ing] its mind . . . un- 
supported by any evidence.” (St.Br. 30-31). Second, it rear- 
gues the evidence, marshalling a long list of State 
witnesses who deny any knowledge of a Massiah viola- 
tion. Finally, it lashes out at jailor Ulysses Worthy, throw- 
ing every brick available, heedless of the record on this 
appeal. Let us address these attacks in order. 

A. The District Court’s Purported “Change of Mind” 

Petitioner fully agrees with the State on one point: 
the District Court was initially quite skeptical of peti- 
tioner’s Massiah allegations. The record clearly demon- 
strates that, at the outset of the federal hearing on July 8, 
1987 — prior to the receipt of any evidence — the court 
expressed (i) open doubts about the existence of a Mas- 
siah violation and (ii) confidence in the word of informant 
Offie Evans. (See, e.g. R4-4-5). Once the evidence began to 
come in, however, the District Court began to change its 
mind. The change was prompted by the facts — by the 
testimony of relevant witnesses, by documents, by tran- 
scripts of prior proceedings — all of which led to the 
findings the State now laments.



3 

This is, of course, exactly the process of decisionmak- 
ing contemplated by the Anglo-American system. The 
State can have no real quarrel with the process, only with 
the outcome. The record shows, not a district court that 

was confused, but a district court that became enlight- 
ened. Indeed, there is no better indication of the strength 
of petitioner’s evidence than its power to move the dis- 
trict judge from an initial presumption against peti- 
tioner’s claims to an ultimate grant of habeas relief. (See 
R5 165-166). 

B. The Evidence of a Massiah Violation 

What was the evidence that caused the District Court 
to change its mind? The State has stressed its long list of 
witnesses, each of whom has denied knowledge of any 
Massiah violation: among them, District Attorney Russell 
Parker (St.Br. 9); jailor Carter Hamilton (St.Br. 9 & 11); 

and Detective Jowers (St.Br. 9). Yet most of these wit- 

nesses were outside the circle of conspiracy, and their 

denials thus mean nothing.2 One cannot disprove 

  

2 Although the State stresses, for example, that jailor Ham- 
ilton knew of no move of informant Evans in the Fulton 
County Jail (St.Br. 11), during cross-examination, Hamilton 

admitted that his knowledge was confined to what happened 
on his work shift, on the first floor of the multi-floor, multi- 

wing jail (R6-76): 

Q. All right. And if a prisoner were placed initially 
in isolation on the second floor and after a day 
or two moved down on to the first floor, would 

you have known necessarily that he had been on 
the . . . second floor before he appeared within 
your area of responsibility on the first floor? 

A. You know, unless somebody told you, no . . . 

Q. All right. And, in fact, with respect to Offie 

Evans in particular, you don’t have any present- 
day recollection as to the circumstances of his 

(Continued on following page)  



    

4 

Caesar’s assassination by calling witnesses who weren't 
at the Capitol. 

There were other witnesses, however, whose testi- 

mony did present critical credibility choices for the Dis- 
trict Court. Chief among them were Atlanta Detectives 
Sidney Dorsey and Welcome Harris. Both of these offi- 
cers, during the 1987 federal hearing, denied that they 
had ever held any private jailhouse meetings with Offie 
Evans at which an illegal informant relationship could 
have been discussed. They claimed to have attended only 
the July 12, 1978, meeting where District Attorney Parker 
was present. (St.Br. 10 & 12). 

Yet petitioner produced contrary evidence — drawn 
directly from informant Offie Evans himself. During peti- 
tioner’s 1981 state habeas corpus hearing, Offie Evans 

told the state habeas court of two meetings with Atlanta 
detectives, the first with Detectives Welcome Harris and 
Sidney Dorsey alone (St. H. Tr. 117; Fed. Exh. 16), the 
second, with Parker and others. (St. H. Tr. 118).3 

  

(Continued from previous page) 

being brought into the Fulton County Jail; isn’t 
that correct? 

A. ... No. As to when he came in, no, sir. I don’t 

know that. 

(R6-74-75). The District Court made exactly this point in its 
findings: “The lack of corroboration by other witnesses is not 
surprising; the other witnesses, like Assistant District Attorney 
Parker, had no reason to know. . . . ” (J.A. 81). 

3 Detective Dorsey mentioned during the 1987 federal 
hearing that he had been contacted by Assistant District Attor- 
ney Parker following petitioner's 1981 state habeas corpus 
hearing. (R6-86-88). During their conversation, Parker and 

Detective Dorsey discussed the testimony given by Offie Evans 
at petitioner’s hearing, specifically mentioning Evans’ testi- 
mony which revealed a possible Giglio violation. Apparently, 
Detective Dorsey assured the prosecutor “that the man [Evans] 
was lying” (R6-87) and that he “didn’t remember any type 
conversation of that type.” (R6-87).



5 

In addition to this sharp contradiction, Detective 
Sidney Dorsey’s testimony caught the District Court’s ear 
for a second reason. Dorsey was remarkably evasive, 
professed a selective memory loss, and appeared care- 
fully rehearsed in his denials. Dorsey was forced to 
acknowledge, however, that he had known informant 
Evans prior to the McCleskey case, indeed, that he had 

personally used Evans as an informant in other cases. He 
nonetheless claimed to have lost all memory about his 
dealings with Evans during this investigation: 

Q. Okay . .. [Evans] found himself in the Fulton 
County Jail in July of 1978. Did you go see him 
at any point in July? 

A. Counselor, I do not recall going to see Offie 
Evans at the Fulton County Jail during that 
time or any time. 

Q. Do you remember any meetings that might 
have been held between Mr. Evans and your- 
self and Detective Harris and Russell Parker at 
the jail? 

A. Counselor, in all honesty, I do not. 

* * * 

A. I'm not suggesting that the meeting didn’t 
take place, nor am I suggesting that I wasn’t 
there. I just don’t recall being there and for some 
reason no one else remembers my being there either. 

(R5-57-58, 59-60) (emphasis added). 

As the excerpt above reveals, Detective Dorsey did not 

deny categorically that he had met with Evans. On the 
contrary, he acknowledged that he “probably did” meet 
with Evans (R5-60), that it was “very possible” he had 
done so. (R5-66). He simply could not remember. 

To summarize: a police-officer was murdered; Detec- 
tive Dorsey was on the team assigned to the case; no solid 
evidence emerged to identify the triggerman; Dorsey 
learned, however, that Warren McCleskey, a chief suspect, 
and Dorsey's old friend and informant, Offie Evans, were 
both being housed in the Fulton County Jail; informant  



    

6 

Evans soon thereafter came forward with crucial evi- 
dence, collected at the jail from McCleskey; and Dorsey 
took part in the meeting where District Attorney Parker 
first heard the crucial evidence. Yet Dorsey — the only 
officer who had known Evans previously — testified that 
he remembered nothing about the events that led to this 
dramatic break in the case. 

It was after listening to this evidence that Judge 
Owen Forrester reached his conclusion: “Unforfunately, 
one or more of those investigating Officer Schlatt’s mur- 
der stepped out of line. Determined to avenge his death 
the investigator(s) violated clearly-established case law.” 
(J.A. 90). “Detective Dorsey,” the District Court observed 

elsewhere, “had an obvious interest in concealing any 
[Massiah] arrangement.” (J.A. 82). 

Under Rule 52, these findings were reasonable, they 
were not “clearly erroneous,” and they are not subject to 
reargument here by the State. 

C. The Testimony of Ulysses Worthy 

The State’s most vehement remarks are reserved for 
jailor Ulysses Worthy, whose testimony, it contends, “is so 
inconsistent, confusing and incoherent that one cannot 
discern readily any specific facts.” (St.Br. 12). During 
Worthy’s initial federal appearance on July 9, 1987, how- 
ever, the basic outlines of his story seemed clear enough 
to the State’s attorney: 

Q. [By the State]: Mr. Worthy, let me see if I 
understand this. Are you saying that some- 
one asked you to specifically place Offie 
Evans in a specific location in the Fulton 
County Jail so he could overhear conversa- 
tions with Warren McCleskey? 

A. Yes, ma’am. 

(R5-153). The “someone” Worthy was referring to, he 
clarified, was Detective Sidney Dorsey or some other 
“officer on the case.” Jailor Worthy remembered that 
Dorsey and another officer had met privately with Offie



7 

Evans in Worthy’s own office at the Fulton County Jail. 
(R5-147-149; 150-153). Mr. Worthy offered one additional 

clarification: 

Judge, may I clarify that? . . . in this particular 
case this particular person [Evans] was already 
incarcerated. They just asked that he be moved 
near where the other gentleman [McCleskey] 
was. 

(R5-155). 

Worthy’s testimony thus corroborated Offie Evans’ state 
habeas testimony on two points — that a private meeting had 
occurred at the Fulton County Jail, and that both Detective 

Dorsey and informant Evans had attended it. Moreover, the 

previously undisclosed fact that Offie Evans had been 
moved from elsewhere in the Fulton County Jail to the cell 
next to petitioner McCleskey cleared up a central puzzle 
about Evans’ 21-page statement.4 

The State focuses its attack not on the straightfor- 
ward account Worthy gave on July 9th, but on his second 
appearance — as a State’s witness — during a rebuttal 
hearing held the following month. Worthy came before 
the District Court on July 9th without any time for 

  

4 Although Evans was arrested and taken to the Fulton 
County Jail on July 3, 1978 (R5-101-17), his written statement is 

absolutely silent concerning any contact with McCleskey dur- 
ing the four-day period between July 3rd and July 8th. Only 
beginning on the 8th of July did Evans’ statement begin to 
report any conversations with McCleskey and his partner Ber- 
nard Depree. (Pet. 8, at 1). Not until July 9th did Evans report 
that he first introduced himself to McCleskey, claiming that he 
was Ben Wright's uncle “Charles.” (Pet. 8, at 3). 

Why did Evans — whose statement reveals him to be a 
voluble and aggressive questioner — sit silently next to 
McCleskey for nearly a week? Worthy’s testimony provided 
the answer: Evans had not been present in an adjacent cell 
until after his move, which came only several days after he was 
initially incarcerated. His non-stop questioning began soon 
after the move had been made. 

   



  

8 

rehearsal or any reason to shade his recollections; he had 
spoken with counsel for the State and for petitioner only 
momentarily before he took the stand. (R6-50-52; 
R6-118-119). Worthy later acknowledged that on July 9th, 

he knew nothing about the legal issues or the testimony 
of previous witnesses. (R6-52-53). 

In the month between his initial hearing and the 
rebuttal hearing, however, Worthy — an eighteen-year 
veteran of the Sheriff's Department (R6-13) — met at least 
twice with State’s attorneys. (R6-53-54). He also studied a 
newspaper account of the first hearing. (R6-55-56). When 
he reappeared under State auspices at the rebuttal hear- 
ing, Worthy initially tried, on direct examination, to 
retract important portions of his original account in a 
manner favorable to the State. When cross-examination 
began, however, he reluctantly reconfirmed, one-by-one, 
the major features of his earlier testimony. (See R-6-25-50). 
The District Court itself took over the questioning on the 
crucial issues: 

THE COURT: But you're satisfied that those 
three things happened, that they asked to have 
him put next to McCleskey, that they asked him 
to overhear McCleskey, and that they asked him 
to question McCleskey. 
THE WITNESS: I was asked can - to be placed 
near McCleskey’s cell, I was asked. 
THE COURT: And you're satisfied that Evans 
was asked to overhear McCleskey talk about 
this case? 
THE WITNESS: Yes, sir. 

THE COURT: = And that he was asked to kind of 
try to draw him out a little bit about it? 

THE WITNESS: Get some information from 
him. 

(R6-64-65; accord, R6-26-28). 

Although the State argued to the District Court — and 
now to this Court — that Worthy was “confused,” peti- 

tioner urged another view: that the District Court should 
credit Worthy’s uncoached account of July 9th, and 

   



9 

should view Worthy’s hedging during the rebuttal hearing as 
the reluctance of a long-time law enforcement official, now 

well informed about the State’s case, to give testimony 

damning the conduct of fellow police officers. In its subse- 
quent opinion, the District Court demonstrated that it had 
thoroughly weighed these alternative interpretations (J.A. 
80-81) and “[alfter carefully considering the substance of 
Worthy’s testimony, his demeanor, and the other relevant 
evidence,” resolved the facts in petitioner’s favor. 

This is precisely the sort of factual finding that Rule 52 
commits to district courts. Anderson v. City of Bessemer City, 
470 U.S. 574, 757 (1985); Amadeo v. Zant, 486 U.S. 214 (1988); 
486 U.S. 214, 225-226 (1988). The State’s present attempt is 
nothing more than a reargument of factual points which 
have found acceptance neither in the District Court nor in 
the Court of Appeals. These arguments should be rejected. 

II 

AMADEO V. ZANT CONTROLS THE ABUSE ISSUE ON 
PETITIONER’S APPEAL. NONE OF THE DISTRICT 
COURT’S FACTUAL FINDINGS ON ABUSE WERE 
“CLEARLY ERRONEOUS” 

The District Court also made careful factual findings 
on the issue of abuse of the writ. The State avoids their 

  

> Needless to underscore, the State’s resort to a subse- 

quent adjudication of similar factual issues in another defen- 
dant’s case — not a part of this record - is legally irrelevant and 
improper. Ciucci v. Illinois, 356 U.S. 571, 573 (1958) (per curiam) 

(“material, not being part of the record, and not having been 

considered by the [lower] courts, may not be considered 
here”); cf. United States v. Johnson, 713 F.2d 633, 648 (11th Cir. 

1983); see generally, Rule 10(e), Fed. R. App. P. 

The State had three prior opportunities to counter peti- 
tioner’s evidence in this case — (i) during the original federal 
hearing in July of 1987, (ii) during the rebuttal hearing in 
August of 1987, and (iii) during its Rule 60(b) proceedings in 
1988. It succeeded on none of them. Given three strikes, the 
State’s factual argument is surely out. 

 



  

10 

force by characterizing them as “mixed questions of fact 
and law” which should receive de novo review (St.Br. 27) 
and, alternatively, by urging that they are clearly erro- 
neous. (St.Br. 17). Neither course is acceptable. 

Let us examine the questions the State would desig- 
nate “mixed questions of fact and law.” The District 
Court found for example (i) that there was “no showing 
of any reason that petitioner or his counsel should have 
known to interview Worthy specifically with regard to 
the Massiah claim” (J.A. 85), and (ii) that conducting 
interviews with three Atlanta police officers and jailors 
who later testified at the federal hearing “would [not] 
have allowed petitioner to assert this claim any earlier.” 
(J.A. 85). The Court of Appeals disagreed with these 
findings; it asserted that petitioner had not “shown that a 
more extensive effort at that time . . . would not have 
turned up Worthy,” (J.A. 128), and faulted counsel for not 
interviewing the officers. 

As Amadeo v. Zant teaches, however, the District 
Court's findings on these points constituted primary, his- 
torical facts; the Court of Appeals was not free to disre- 
gard them. The progression of this case from district 
court to court of appeals parallels that in Amadeo v. Zant. 
Long after his trial, Amadeo uncovered an incriminating 
memorandum which indicated that the State had deliber- 
ately skewed jury lists to underrepresent blacks and 
women on his jury. 486 U.S. at 217-218. The State coun- 
tered that Amadeo’s lawyers should have found the 
memo earlier, and that Amadeo should therefore be 

barred from asserting the claim in habeas proceedings, 
absent proof of “cause” and “prejudice” under Wain- 

wright v. Sykes. 
The district court in Amadeo held an evidentiary hear- 

ing on the competing contentions; the principal ques- 
tions, this Court later noted, were whether or not the 

State’s jury misconduct 
was . . . reasonably discoverable because it was 
concealed by [State] officials, and if that con- 
cealment, rather than tactical considerations, 

   



11 

was the reason for the failure of petitioner's 
lawyers to raise the jury challenge in the trial 
court. 

486 U.S. at 222. Afterwards, the Amadeo court found as 
fact: (i) that the incriminating memorandum “was not 
reasonably available to petitioner's lawyers,” 486 U.S. at 
223; and (ii) that “petitioner’s [trial] lawyers did not 
deliberately bypass the jury challenge.” 486 U.S. at 224. 
When the Court of Appeals “expressed disagreement and 
substituted its own factual findings,” (id.), this Court 

unanimously reversed, citing Rule 52 and the consistent 
line of cases enforcing that Rule. E.g., Anderson v. City of 
Bessemer City, 470 U.S. 564 (1985). 

There is no meaningful distinction between the find- 
ing in Amadeo that the State’s jury memo was not “readily 
discoverable” by Amadeo’s counsel, and the finding here 
that Evans’ 21-page statement and Ulysses Worthy would 
not have been discovered through further defense inves- 
tigation. (J.A. 84). Nor is there a distinction between the 
district court findings in both Amadeo and McCleskey that 
“petitioner’s lawyers did not deliberately bypass” their 
respective claims. The designation of these issues as 
questions of fact for the district courts is thus directly 
controlled by Amadeo; it is also consistent with the 
Court’s treatment of other, similar issues. Cf. Maggio v. 
Fulford, 462 U.S. 111 (1983) (per curiam) (petitioner's 
competence to stand trial requires deference under 28 
U.S.C. §2254(d)). 

The State alternatively argues that the court's finding 
that Evans’ 21-page statement was not readily available 

  

¢ The most striking distinction between the two cases is 
that petitioner McCleskey’s counsel was far more active in 
seeking the written documents and other evidence that ulti- 
mately made its claim. The trial lawyers in Amadeo apparently 
looked only cursorily, if at all, for evidence of jury underrepre- 
sentation. The District Court nonetheless held that, since the 

evidence of State misconduct would not have been found in 
any event, they had shown “cause” for any procedural default. 

 



  

12 

should be overturned as “clearly erroneous,” since “the 
record establishes counsel should have been aware of it 
and . . . the state did not ‘conceal’ its existence.” (St.Br. 6). 
This argument rests on the dubious proposition that 
defense counsel should somehow have realized from the 
way in which the State said “No,” that the State actually 
meant “Yes” — that it had more evidence all the time. This 
cannot be the law; due process demands more of the State 
than a clever round of Twenty Questions. Defense coun- 
sel sought all written statements — not once, not twice, 
but four times, orally and in writing. Never did State 
officials turn over Evans’ statement. It is doubletalk for 
the State to claim that it made Evans’ statement “avail- 
able” even as it repeatedly declined to turn over the 
document. 

After a search for other “inexcusable” failures of 
petitioner, the State musters nothing but a slender roster 
of omissions, chiefly counsel’s failure to interview Detec- 
tives Harris, Dorsey and jailor Hamilton. (St.Br. 33). Yet 
Hamilton later acknowledged that he didn’t know where 
Evans had been housed before he was moved next to 
petitioner McCleskey; Detective Harris denied knowing 
or ever meeting with Evans except at the joint meeting 
with District Attorney Parker; and Detective Dorsey pro- 
fessed not to remember anything at all. It is no wonder, 
then, that the District Court — which listened to every one 
of these witnesses — later found that “it is difficult to see 
how conducting such interviews would have allowed 
petitioner to assert this claim any earlier.” (J.A. 85). 

  

7 The allegation that attorney Stroup “did not attempt 
. . . to talk to the pertinent people” (St.Br. 33) is baseless. We 
refer the Court to pages 8-12 of our opening brief for a descrip- 
tion of Stroup’s efforts to locate “pertinent people.” Equally 
unfounded is the suggestion that petitioner could have “dis- 
covered [Ulysses Worthy] . . . by a simple question directed to 
Detective Harris.” (St.Br. 35). The question that ultimately led 

to Ulysses Worthy sought to determine from Detective Harris 

(Continued on following page) 

 



13 

Nothing the State can point to, in sum, demonstrates 

that the District Court’s findings on the issue of abuse are 
“clearly erroneous.”® 

III 

FOR “DELIBERATE BYPASS” PURPOSES, WHAT 
COUNTS IS NOT SOLELY COUNSEL'S AWARENESS 
OF THE LEGAL BASIS FOR A CLAIM, BUT COUN- 
SEL'S AWARENESS OF FACTS THAT WOULD SUP- 
PORT THE CLAIM 

As an alternative to its factual reargument, the State 
also offers a new reading of Sanders v. United States: 
knowledge of the legal basis for a claim should be 
deemed legally equivalent to knowledge of facts that 
would support the claim. 

  

(Continued from previous page) 

where the 21-page statement by Offie Evans had been taken. 
(R4-195). Not until petitioner finally received a copy of that 
statement in 1987, only weeks before he filed his second habeas 
petition, did there exist a predicate for this “simple question.” 

8 While it is not worthy of separate coverage, we note that 
the state dismisses the District Court’s factual findings which 
undergird its harmless error analysis on the ground that “the 
district court was doing nothing more than examining the state 
trial transcript.” (St.Br. 17) “[Tlhere was no reason why the 

Eleventh Circuit Court of Appeals could not rely on . . . what it 
observed from the trial transcript . . . Any reviewing court can 
make similar citations to the existing record.” (St.Br. 38). 

This argument betrays unfamiliarity with the Rule 52 cases 
decided by this Court. While appellate courts doubtless “can” 
carry out their own fact-finding with the benefit of an existing 
record, the Court has held that it is reversible error for them to 

do so. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 
574 (1985). Yet here, that is exactly what happened. The Court 
of Appeals disregarded the District Court’s primary findings of 
fact on the harmless error issue, adopted its own factual find- 
ings, and then declared that the Massiah error was harmless.  



  

14 

“[Tlhere is no doubt that the Petitioner was 
aware of the [Massiah] claim as he raised it in 
his first state habeas corpus proceeding and 
counsel made a specific decision not to present 
the claim in the first federal petition . . . [T]his is 
precisely the type of conduct that the abuse of 
the writ doctrine is designed to prevent.” 

(St.Br. 23). Lest there be any doubt, the State repeats the 

point: “[T]he focus necessarily must be on the Petitioner's 
conduct, not his subjective believe as to the merits of the 

claim.” (St.Br. 24). 

Note carefully what the State proposes. This is not 

the conventional distinction between a “subjective” stan- 

dard and an objective standard. An ordinary objective 

standard would charge a petitioner with knowledge of 

those facts and legal principles that a reasonable counsel 

should have uncovered. The State cannot acquiesce in 

such a standard here, of course, since the District Court 

expressly found that the facts demonstrating a Massiah 

claim are not reasonably discoverable by petitioner's 

counsel. Instead, the State turns to a new formulation; if a 

legal theory is known to counsel, he or she should be 

charged with carrying a claim forward irrespective of 
whether any evidence can be found to support it. Unsuccess- 

ful actions to substantiate the claim will not excuse an 

applicant; counsel must stubbornly cling to all conceiv- 

able claims, at every stage of post-conviction proceed- 

ings, irrespective of what the evidence shows, or risk the 

irremediable loss of those claims if some new evidence 

later comes to light. 

Make no mistake; this is a strict liability standard; it 

has no warrant in this Court’s precedents. It is foreign to 

the rationale of Salinger v. Loisel, 265 U.S. 224 (1924), 
Wong Doo v. United States, 265 U.S. 239 (1924), and Price v. 

Johnston, 334 U.S. 266 (1948). In those cases, the Court 

expressed keen interest in whether the applicants who 

   



15 

withheld their claims had access to the relevant facts. 
Not only would the State’s reformulation of Sanders 
depart sharply from precedent; we suggest to the Court 
that it would add measurably to the burden of present 
habeas corpus proceedings, by providing a major incen- 
tive for prudent habeas counsel to file — and pursue 
through discovery — enormous, outsized, factually 
dubious habeas pleadings. We doubt that either the inter- 
ests of justice, or the interests of judicial administration, 
would be served by this result. 

IV 

THE CALL TO FASHION A NEW JUDICIAL STAN- 
DARD FOR JUDGING SUCCESSIVE HABEAS 
CLAIMS SHOULD BE REJECTED 

Both the State and the Foundation — though primarily 
the latter — urge the Court to use Warren McCleskey’s 
case as a vehicle to announce a new standard for succes- 
sive petition cases. The State justifies its call with the 
assertion that “habeas corpus and the particular concept 
of abuse of the writ have been fluid concepts.” (St.Br. 20). 

  

For example, Price’s attorney surely must have known 
that a prosecutor could not lawfully suborn perjury. Counsel 
also knew that after Price’s prosecutor had conferenced with a 
key witness during a mid-trial break, the witness changed his 
testimony materially. The Court nevertheless allowed Price to 
proceed with a fourth federal habeas petition, alleging pros- 
ecutorial misconduct, because the Court could not assume, 

~ without further hearings, “that petitioner has acquired no new 
or additional information . . . that might indicate fraudulent 
conduct,” 334 U.S. at 290 (emphasis added). The Court added 

that “even if it is found that petitioner did have prior knowledge of 
all the facts, . . . [hel may be able to present adequate reasons 

for not making the allegations earlier . . . which [would] make 
if fair and just for the trial court to overlook the delay.” (Id.) 
(emphasis added). The rule in Price is a far cry from what the 
State has in mind. 

 



  

16 

The Foundation is more careful about its historical 
generalizations and more reckless in its future prescrip- 
tions. The Foundation has conducted sufficient historical 
review to recognize the longstanding legal commitment 
to preserve the resort to successor petitions — a commit- 
ment better described as “solid” than as “fluid.” 

Realizing that precedent is against its position, the 
Foundation has chosen to urge that the past be cast aside 
— lock, stock and barrel. Its method is veiled, but the 
underlying aim is clear. The Foundation dismisses the 
uniform teaching of the common law by stressing that 
“[tThe common law writ was totally unavailable for the 
relief which petitioner seeks in this case.” (Fnd.Br. 3). Yet 
the major expansion of substantive rights of criminal 
defendants during the past two centuries does nothing to 
diminish the petitioner's procedural point: that an unbro- 
ken legal tradition has honored successive habeas peti- 
tions, allowing good faith applicants to raise, through 
habeas procedures, whatever legal rights the society has 
determined should be available to them. 

The Foundation’s review of federal precedent suffers 
from the same flaws, finding distinctions and distractions 
to obscure the central point. For example, it recasts Ex 
parte Cuddy, 40 F. 62 (1889), an early case that strongly 
supports petitioner’s position (see Petitioner's Opening 
Brief at pages 29-30, note 26), to hold that “the denial of a 

prior writ is generally a sufficient reason to deny a sec- 
ond or subsequent writ, absent facts which did not exist 
at the time of the first petition.” (Fnd.Br. 26). That is 
simply not what Cuddy held; it’s not even a fair inference. 

The crucial facts that Cuddy proffered in his second 
habeas petition were well-known to him at the time of his 
first application. As Justice Field stressed in denying the 
second application, not only did Cuddy fail to introduce 
those well-known facts at his initial hearing, he made no 
attempt to add them to the record by way of a supple- 
mental application, or alternatively to suggest during his 
appeal that there were extra-record facts that might bols- 
ter his position. 40 F. at 66. 

   



17 

Read correctly, Cuddy presages later cases like Wong 
Doo v. United States, 265 U.S. 239, 241 (1924), where this 
Court branded a second application as an abuse because 
the record showed that the applicant “had full oppor- 
tunity” to offer facts that were “accessible all the time” 
during his initial application. Petitioner’s case plainly 
draws support from these cases, for it is undisputed that 
he did not have access to the crucial facts when he 
brought his initial federal petition; indeed, State officials 
were actively hiding the facts from him. 

The Foundation’s dismissive air extends not only to 
prior judicial precedent but to its analysis of the strong 
evidence that Congress opposes judicial encroachments 
on the law governing successive petitions. Perhaps its 
legislative analysis is best excused by its apparent convic- 
tion that any resort to legislative history is “dangerous” if 
not improper. (Fnd.Br. 22). Whatever, the explanation, the 
Foundation’s analysis is faulty and misleading. For exam- 
ple, after arguing forcefully that the enactment of 28 
U.S.C. §2244(b) in 1966 was meant to “make a substantial 
change in the law,” (Fnd.Br. 22), the Foundation’s factual 
support for its contention proves an anticlimax, little 
more than an expression of regret that “the [legislative] 
reports shed very little light on the precise contours of 
the intended change.” (Fnd.Br. 23). The legislative reports 
in fact expressly identify the behavior that Congress was 
taking aim to proscribe — claims in successive petitions 
“predicated on grounds obviously well known to them 
when they filed the preceding application.” S. Rep. No. 
1797, 89th Cong., 2d Sess. 2 (1966). Yet since this target 
wouldn't fit the Foundation’s purpose, the reference is 
dismissed as merely one example on a longer (but 
unspecified) congressional list. 

The Foundation’s exegesis of the legislative history of 
Rule 9(b) is similarly incomplete. It proceeds by sketching 
various polar positions urged on Congress by different 
groups, and then argues that since none of these positions 

   



  

18 

was finally accepted, Congressional intent must lie some- 
where in the middle. (Fnd.Br. 23-25). Relegated to a pass- 
ing reference is the language of the House Judiciary 
Committee’s own final report, which stressed that the 

Committee sought to avoid “a new and undefined stan- 
dard that [would give] a judge too broad a discretion to 
dismiss a second or successive petition.” H.R. Rep. No. 
94-1471, 94th Cong., 2d Sess. (1976). (The report also 
expressed congressional desire to “bring rule 9(b) into 
conformity with existing law,” citing Sanders and 28 
U.S.C. § 2244(b).) 

Vv 

PETITIONER McCLESKEY IS ENTITLED TO RELIEF 
ON THE MERITS EVEN UNDER A “CAUSE” AND 
“PREJUDICE” STANDARD 

Having cut its great road through the law, the Foun- 
dation urges the Court to adopt a new “cause” and “prej- 
udice” test for abuse, drawn from Wainwright v. Sykes and 
its progeny. The wisdom of this proposal aside, its timing 
is wrong. The Court should not announce a major change 
in the law that would have no effect upon the outcome of 
the case before it. Yet Warren McCleskey’s Massiah claim 
would meet a “cause” and “prejudice” test. The Founda- 
tion itself appears uneasy on this point, conceding that, in 
principle, proof that the State concealed evidence would 
establish “cause” under Amadeo v. Zant. (Fnd.Br. 28). Yet 
with no more than passing knowledge of petitioner's 
record, the Foundation boldly asserts that “[p]etitioners 
showing falls far short of the kind of cover-up which 
constituted cause for default in Amadeo.” (Fnd.Br. 29). 

The Foundation plainly does not know this record 
well enough to make a credible argument.10 Even were it 

  

10 The Foundation has attempted a lesson in lawyering-by- 
hindsight to make its point: “Where the testimony of a jail- 
house informant is central to the case, a claim under United 

(Continued on following page) 

   



19 

better informed, however, it would still face an insuperable 
barrier in Rule 52. The District Court here made extensive 
factual findings on the underlying State misconduct, the 
availability of the hidden evidence, and the steps taken by 
habeas counsel to obtain that evidence. Amadeo holds unmis- 
takably that these factual findings are not open to later 
revision or dismissal, neither by disgruntled parties nor by 
the appellate courts, nor by amici. Absent proof that the 
findings are “clearly erroneous,” they must be honored on 
appeal. Thus, even under the Foundation’s proposed test, 
petitioner McCleskey would be entitled to full habeas corpus 
relief. 

CONCLUSION 

This reply brief has addressed several points in the 
State’s presentation. Left till last is one central point: 

  

(Continued from previous page) 

States v. Henry . . . is the obvious first place to look. The officer 
in charge of cell assignments would be the first person to ask. 
That person, apparently, was Officer Worthy, the officer now 
claimed to be a newly discovered witness.” (Fnd.Br. 27). 

Petitioner doesn’t disagree with the fundamentals of this les- 
son. Its application to this case, however, overlooks (i) that peti- 
tioner’s habeas counsel here did immediately see the possibility of 
a Henry/Massiah claim; (ii) that they asserted such a claim, then 

investigated that claim; (iii) that they also asserted a related claim, 
under Giglio v. United States, 405 U.S. 150 (1972), and eventually 

uncovered evidence sufficient to obtain relief from the federal 
district court (although relief was later overturned on appeal); (iv) 
that they too, thought of locating the officer in charge of cell 
assignments; and (v) that they did so, even though that officer — 
Bobby Edwards, not Ulysses Worthy, as the Foundation incorrectly 
assumed - had retired from the Fulton County Jail and was 
located, only with difficulty, in a community over 90 miles from 
Atlanta. (See Petitioner’s Opening Brief at pages 9-10; R4-47-49). In 
short, measured by the Foundation’s standards, petitioner's 

performance, as the District Court found, was reasonable and 

adequate.  



20 

Certain State officials have been caught hiding the very 
evidence that other State officials now contend should 
have been uncovered by petitioner sooner. Petitioner’s 
claim should be barred, the State says, even though State 
actors “stepped out of line . . . [and] ignored the rule of 
law.” (J.A. 90). 

Petitioner’s case is strong on all issues; but on this 

point, as Amadeo teaches, his legal position is unassail- 
able. The State cannot “sandbag,” withholding crucial 
evidence when asked for it, and then profit by its own 
misconduct. Nor can it be allowed to defend its miscon- 
duct with the excuse that the left hand didn’t know the 
mischief the right hand was up to. When a State prosecu- 
tor testifies, under oath, that his prosecution of a capital 
case was not tainted by unlawful informant testimony, 
lawyers and citizens alike are entitled to rely on his word. 
It is not an abuse of the Great Writ for habeas applicants 
and their counsel to repose confidence in the integrity of 
State authorities. 

The judgment of the Court of Appeals should be 
reversed. 

Respectfully submitted, 

JuLius L. CHAMBERS, III 
RicHarD H. Burg, III 

GeorGe H. KENDALL 
99 Hudson Street 
New York, New York 

10013 

(212) 219-1900 

ANTHONY G. AMSTERDAM 
New York University 
School of Law 
40 Washington 

Square South 
New York, New York 

10012 

(212) 998-6198 

* Attorney of Record 

RoBerT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

* Jon CHARLES BOGER 
School of Law, CB# 3380 
Van Hecke-Wettach Hall 
Chapel Hill, North Carolina 

27599 
(919) 962-8516 

Attorneys for 
Petitioner 
Warren McCleskey