890 F.2d 342
Warren
Mccleskey, Petitioner-Appellee,
v.
Walter Zant, Superintendent,
Georgia Diagnostic and
Classification Center,
Respondent-Appellant.
No. 88-8085,
89-8085
Federal Circuits, 11th Cir.
February 6, 1990
Appeals from the United States
District Court for the Northern
District of Georgia.
Before
KRAVITCH and EDMONDSON, Circuit
Judges, and RONEY, Senior
Circuit Judge.
KRAVITCH,
Circuit Judge:
This is a
consolidated appeal by the State
of Georgia from the district
court's grant of Warren
McCleskey's second petition for
a writ of habeas corpus and from
the district court's denial of
the State's motion under
Fed.R.Civ.P. 60(b) for relief
from the judgment. The district
court granted the writ solely on
the basis of McCleskey's claim
that his sixth amendment rights
had been violated under Massiah
v. United States, 377 U.S. 201,
84 S.Ct. 1199, 12 L.Ed.2d 246
(1964). Because we find that the
district court abused its
discretion in failing to dismiss
McCleskey's Massiah allegation
as an abuse of the writ, we
reverse the district court
without reaching the merits of
McCleskey's Massiah claim or of
the State's Rule 60(b) motion.
I. FACTS
McCleskey was
arrested and charged with the
murder of a police officer
during an armed robbery of the
Dixie Furniture Store. The store
was robbed by four men. Three
entered through the back door
and one through the front. Each
of the four men was armed.
McCleskey had a .38 caliber
Rossi white-handled, nickel-plated
pistol, Ben Wright had a sawed-off
shotgun, and the other two had
blue steel pistols. The man who
entered through the front
secured the store, forcing the
employees to lie on the floor.
The others rounded up the
employees in the rear and began
to tie them up with tape. The
manager was forced at gunpoint
to turn over the store receipts,
his watch, and six dollars.
Responding to a silent alarm, a
police officer entered the store
by the front door. He proceeded
approximately fifteen feet down
the center aisle. Two shots were
fired. One shot struck the
police officer in the head
causing his death. The other
shot glanced off a pocket
lighter in the officer's pocket
and lodged in a sofa. That
bullet was recovered. The
robbers fled. Sometime later,
McCleskey was arrested in
connection with another armed
robbery.
McCleskey was
identified by two of the store
personnel as the robber who came
in the front door. Shortly after
his arrest, McCleskey confessed
to participating in the robbery,
but maintained that he was not
the triggerman. One of his
accomplices, Ben Wright,
testified that McCleskey
admitted to shooting the officer.
Offie Evans, a jail inmate
housed near McCleskey testified
that McCleskey made a "jail
house confession" in which he
claimed he was the triggerman.
The police officer was killed by
a bullet fired from a .38
caliber Rossi handgun. Though
the weapon was not recovered,
McCleskey had stolen a .38
caliber Rossi in a holdup of a
Red Dot grocery store two months
earlier.
II. PRIOR
PROCEEDINGS
The jury
convicted McCleskey of murder
and two counts of armed robbery.
It sentenced McCleskey to death
for the murder of the police
officer and to consecutive life
sentences for the two robbery
counts. In 1980, these
convictions and sentences were
affirmed by the Georgia Supreme
Court, McCleskey v. State, 245
Ga. 108, 263 S.E.2d 146, cert.
denied,
449 U.S. 891 , 101 S.Ct.
253, 66 L.Ed.2d 119 (1980).
In January of 1981, McCleskey
petitioned for habeas corpus
relief in the Superior Court of
Butts County, asserting over
twenty challenges to his
conviction and sentence. In an
amendment to his petition,
McCleskey alleged a Massiah
violation, claiming that the
introduction into evidence of
statements he made to an
informer violated his rights
under the sixth amendment. See
Massiah v. United States, 377
U.S. 201, 84 S.Ct. 1199. The
petition was denied after an
evidentiary hearing and the
Georgia Supreme Court denied
McCleskey's application for a
certificate of probable cause to
appeal. The United States
Supreme Court denied McCleskey's
petition for certiorari.
McCleskey v. Zant,
454 U.S. 1093 , 102 S.Ct.
659, 70 L.Ed.2d 631 (1981).
McCleskey
filed his first federal habeas
petition in district court in
December of 1981, asserting
eighteen grounds for granting
the writ. That petition did not
include a claim under Massiah.
It did, however, include a claim
under Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972), alleging
that the state prosecutor had
failed to reveal that Offie
Evans, one of its witnesses, had
been promised favorable
treatment as a reward for his
testimony. In 1984, the district
court granted habeas corpus
relief as to McCleskey's Giglio
claim. It ordered that his
conviction and sentence for
malice murder be set aside, but
affirmed his convictions and
sentences for armed robbery.
McCleskey v. Zant, 580 F.Supp.
338 (N.D.Ga.1984).
Both parties
appealed and in 1985, the
Eleventh Circuit, sitting en
banc, reversed the district
court's grant of the writ on the
Giglio claim and affirmed on all
claims denied by the district
court. McCleskey v. Kemp, 753
F.2d 877 (11th Cir.1985) (en
banc). McCleskey then filed a
petition for a writ of
certiorari in the Supreme Court
of the United States. The
Supreme Court granted certiorari
limited to consideration of the
application of the Georgia death
penalty and affirmed the
Eleventh Circuit. McCleskey v.
Kemp, 481 U.S. 279, 107 S.Ct.
1756, 95 L.Ed.2d 262, petition
for rehearing denied,
482 U.S. 920 , 107 S.Ct.
3199, 96 L.Ed.2d 686 (1987).
McCleskey
filed a subsequent petition for
a writ of habeas corpus in state
court in June of 1987. In an
amendment to that petition,
McCleskey once again raised a
Massiah claim, alleging that
newly discovered evidence
demonstrated that a jail inmate
of McCleskey's was acting on
behalf of the State as an
informant. The state court
granted the State's motion to
dismiss and the Georgia Supreme
Court denied McCleskey's
application for a certificate of
probable cause.
McCleskey
filed the present petition for a
writ of habeas corpus in federal
district court in July of 1987.
After evidentiary hearings on
the petition in July and August
of 1987, the district court
entered an order granting habeas
corpus relief only as to
McCleskey's murder conviction
and sentence based upon the
finding of a Massiah violation.
McCleskey v. Kemp, No. C87-1517A
(N.D.Ga. Dec. 23, 1987).
The State now
appeals the district court's
grant of the writ, claiming that
the district court abused its
discretion in failing to dismiss
McCleskey's Massiah allegation
as an abuse of the writ and that
the district court erred in
finding a violation of Massiah.
III. ABUSE
OF THE WRIT
A.
Background
Under the
doctrine of "abuse of the writ,"
a federal court may decline to
entertain a second or subsequent
habeas corpus petition that
raises a claim that the
petitioner did not raise in a
prior petition. The doctrine is
grounded in the court's
equitable power to decline to
entertain a habeas corpus
petition properly within its
jurisdiction when "a suitor's
conduct in relation to the
matter at hand ... disentitle[s]
him to the relief he seeks."
Sanders v. United States, 373
U.S. 1, 17, 83 S.Ct. 1068, 1078,
10 L.Ed.2d 148 (1963) (quoting
Fay v. Noia, 372 U.S. 391, 438,
83 S.Ct. 822, 849, 9 L.Ed.2d 837
(1963)).
The statutory
basis for the doctrine of abuse
of the writ in cases of
successive petitions for habeas
corpus can be found at 28 U.S.C.
Sec . 2244(b)
and Rule 9(b) of the Rules
Governing Section 2254 Cases in
the United States District
Courts.
These provisions address the
problem of prisoners filing the
same claims in successive
petitions as well as the problem
of prisoners who abuse the writ
by filing their claims piecemeal.
A "successive
petition" is one that raises a
claim already adjudicated
through a prior petition, while
a petition that raises grounds
for relief not raised in the
prior petition is analyzed as an
"abuse of the writ." See Gunn v.
Newsome, 881 F.2d 949, 955 n. 6
(11th Cir.1989) (en banc) (plurality
opinion), petition for cert.
filed, No. 89-611 (Oct. 16,
1989).
A federal
court's decision to exercise its
equitable power to dismiss a
petition is based on different
considerations in the two types
of cases. In cases of successive
petitions, equity usually will
not permit a petitioner to
reassert a claim resolved
against him "in the hope of
getting before a different judge
in multijudge courts." See Sec.
2254 Cases R. 9 advisory
committee's note. In cases of
abuse of the writ, equity
counsels against allowing "needless
piecemeal litigation" or "collateral
proceedings whose only purpose
is to vex, harass, or delay."
Sanders, 373 U.S. at 18, 83 S.Ct.
at 1078. In both instances, the
need for finality in criminal
law counsels strongly against
courts repeatedly reviewing
criminal convictions. See
Kuhlmann v. Wilson, 477 U.S.
436, 452-53, 106 S.Ct. 2616,
2626-27, 91 L.Ed.2d 364 (1986) (plurality
opinion).
The state has
the burden of pleading that the
habeas petitioner has abused the
writ. Price v. Johnston, 334
U.S. 266, 291-92, 68 S.Ct. 1049,
1063, 92 L.Ed. 1356 (1948). This
circuit has held that "[t]he
state carries its burden by
recounting the petitioner's writ
history, identifying the claims
not raised before the instant
petition and alleging that the
petitioner abused the writ in
violation of 28 U.S.C. Sec .
2254, Rule 9(b)." Booker v.
Wainwright, 764 F.2d 1371, 1376
(11th Cir.1985), cert. denied,
474 U.S. 975 , 106 S.Ct.
339, 88 L.Ed.2d 324 (1985).
The State has clearly met its
burden here, as it is evident
that McCleskey did not assert
his Massiah claim in his first
federal habeas petition.
McCleskey's
previous failure to assert the
claim does not, however, require
the federal court to dismiss his
petition, for the courts have
recognized that "not all
piecemeal litigation is needless."
Booker v. Wainwright, id.; see
also Haley v. Estelle, 632 F.2d
1273, 1276 (5th Cir.1980).
Once the state has alleged abuse
of the writ, the petitioner must
be afforded the opportunity to
justify his previous failure to
raise the claim. In deciding
whether a petitioner has
presented sufficient
justification, courts have
required the petitioner to show
that he did not deliberately
abandon the claim and that his
failure to raise it was not due
to inexcusable neglect. See
Woodard v. Hutchins, 464 U.S.
377, 379, 104 S.Ct. 752, 753, 78
L.Ed.2d 541 (1984) (per curiam)
(Powell, J., concurring, joined
by four other justices); Demps
v. Dugger, 874 F.2d 1385, 1391
(11th Cir.1989), petition for
cert. filed, No. 89-5277, 1989
WL 113448 (Aug. 4, 1989); Witt
v. Wainwright, 755 F.2d 1396,
1397 (11th Cir.), cert. denied,
470 U.S. 1039 , 105 S.Ct.
1415, 84 L.Ed.2d 801 (1985);
Potts v. Zant, 638 F.2d 727,
740-41 (5th Cir. Unit B 1981),
cert. denied,
454 U.S. 877 , 102 S.Ct.
357, 70 L.Ed.2d 187 (1981).
If a court determines that the
petitioner has failed to carry
his burden of disproving an
abuse of the writ, it may
dismiss the petition unless the
ends of justice demand that the
court reach the merits. Sanders,
373 U.S. at 16-19, 83 S.Ct. at
1078-79; Demps v. Dugger, 874
F.2d at 1391; Davis v. Kemp, 829
F.2d 1522, 1526 (11th Cir.1987),
cert. denied,
485 U.S. 929 , 108 S.Ct.
1099, 99 L.Ed.2d 262 (1988).
Whether a
second or subsequent petition is
to be dismissed on abuse of the
writ grounds is left to the
sound discretion of the district
court. Sanders, 373 U.S. at 18,
83 S.Ct. at 1079; Darden v.
Dugger, 825 F.2d 287, 294 (11th
Cir.1987), cert. denied,
485 U.S. 943 , 108 S.Ct.
1125, 99 L.Ed.2d 285 (1988);
Potts v. Zant, 638 F.2d at 741.
Yet discretion in such matters
is not unfettered, and its sound
exercise will rarely permit a
district court to hear a
petition that clearly
constitutes an abuse of the writ.
See Gunn v. Newsome, 881 F.2d at
949.
In the
instant appeal, the district
court found that McCleskey could
not be said to have
intentionally abandoned his
claim. We disagree and find that
the district court abused its
discretion in failing to dismiss
a clearly abusive petition.
B.
Deliberate Abandonment of the
Massiah Claim
McCleskey
asserts that his failure to
raise a Massiah claim in his
earlier federal petition is
justified because at the time he
filed that petition, he lacked
the evidence to support such a
claim. To demonstrate a
violation of sixth amendment
rights under Massiah v. United
States, 377 U.S. 201, 84 S.Ct.
1199, a defendant must show that
the prosecution deliberately
elicited incriminating
statements from him in the
absence of his lawyer. Massiah
itself involved statements made
by a defendant free on bail to a
co-indictee in a car that had
been wired by the government. In
United States v. Henry, 447 U.S.
264, 100 S.Ct. 2183, 65 L.Ed.2d
115 (1980), the Supreme Court
applied Massiah to a situation
in which incriminatory
statements were made to a
cellmate who was a government
informant. In Kuhlmann v.
Wilson, the Supreme Court
stressed that a defendant
alleging a Massiah violation "must
demonstrate that the police and
their informant took some action,
beyond merely listening, that
was designed deliberately to
elicit incriminating remarks."
477 U.S. at 459, 106 S.Ct. at
2630.
McCleskey
bases his Massiah claim on two
pieces of evidence. The first is
a 21-page written statement of
Offie Evans, a prisoner who was
incarcerated in the cell next to
McCleskey's when McCleskey was
in the Fulton County Jail
awaiting trial. Evans testified
against McCleskey at trial,
relating several incriminating
statements made by McCleskey.
The written statement, which had
been given to the Atlanta Police
Department in August of 1978,
sets out these conversations in
great detail, demonstrating that
Evans lied to McCleskey in order
to get information from him.
McCleskey argues that the
written statement shows evidence
of an ab initio relationship
between Evans and the
prosecution and is thus highly
relevant to his Massiah claim.
The second
piece of evidence McCleskey uses
to support his Massiah claim is
the testimony of Ulysses Worthy
who was captain of the day watch
at the Fulton County Jail during
the summer of 1978. Worthy
testified at two separate points
during the district court
hearings on McCleskey's second
habeas petition. Though Worthy's
testimony was at times confused
and contradictory, the district
court credited Worthy's
assertion that at some point
some officer involved with the
case had asked that Evans be
moved to a different cell. The
district court judge relied
heavily on Worthy's testimony in
holding that McCleskey had
presented a valid Massiah claim.
In fact, he found that "[t]he
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
arrangement. Worthy, by contrast,
had no apparent interest or bias
that would explain any conscious
deception." McCleskey, No.
C87-1517A, slip op. at 22.
McCleskey
maintains that he was unaware of
both pieces of evidence critical
to his Massiah claim until well
after he filed his first federal
habeas petition. It is
uncontested that he did not
obtain Evans' statement until
July of 1987 and that he did not
know about the existence of
Worthy until the time of the
hearing on the second federal
habeas petition. The State
strongly contends that habeas
counsel realized or should have
realized that Evans had made a
written statement concerning his
conversations with McCleskey and
asserts that petitioner's
counsel should have made some
effort to obtain that statement.
The district court found,
however, that McCleskey was not
in fact aware of the written
statement, and we cannot say
that this determination is
clearly erroneous.
Assuming that
McCleskey was unaware of both
pieces of evidence, the question
before us is whether McCleskey's
unawareness of the factual bases
for his Massiah claim at the
time of his first federal habeas
petition is sufficient to
justify his failure to present
the claim. The district court
found that it was sufficient,
holding that McCleskey's
unawareness precluded a finding
of deliberate abandonment of the
claim, despite the fact that
McCleskey had raised it in his
first state habeas petition. We
disagree.
In finding
that McCleskey did not
deliberately abandon his Massiah
claim, the district court stated
that:
First
petitioner cannot be said to
have intentionally abandoned
this claim. Although petitioner
did raise a Massiah claim in his
first state petition, that claim
was dropped because it was
obvious that it could not
succeed given the then-known
facts. At the time of his first
federal petition, petitioner was
unaware of Evans' written
statement, which, as noted above,
contains strong indications of
an ab initio relationship
between Evans and the
authorities. Abandoning a claim
whose supporting facts only
later become evident is not an
abandonment that "for strategic,
tactical, or any other reasons
... can be described as the
deliberate by-passing of state
procedures." ... Petitioner's
Massiah claim is therefore not
an abuse of the writ on which no
evidence should have been taken.
This is not a case where
petitioner has reserved his
proof or deliberately withheld
his claim for a second petition....
Nor is the petitioner now
raising an issue identical to
one he earlier considered
without merit.
McCleskey,
No. C87-1517A, slip op. at 24 (citations
omitted).
This holding
by the district court
misconstrues the meaning of
deliberate abandonment.
McCleskey included a Massiah
claim in his first state
petition, dropped it in his
first federal petition, and now
asserts it again in his second
federal petition.
Given that McCleskey had
asserted the Massiah claim in
his first state habeas petition,
it is clear that the issue was
not unknown to him at the time
of his first federal petition.
Further, we must assume that at
the time McCleskey filed his
first state habeas petition,
counsel had determined that
there was some factual basis for
a Massiah claim. Indeed, such a
determination is not surprising.
Not only was counsel aware that
Evans was in a cell next to
McCleskey,
but counsel was also aware that
some sort of relationship
existed between Evans and the
police, as this formed the basis
of McCleskey's Giglio claim.
The petitioner and his counsel
did not accidentally fail to
include the Massiah claim in the
federal petition, but made a
knowing choice not to pursue the
claim after having raised it
previously. This constitutes
prima facie evidence of
deliberate abandonment. In
Darden v. Dugger, we stated that:
The record
shows that the issue presented
in this third petition was
specifically withdrawn from the
district court's consideration
as being not well founded. The
issue was abandoned. Intentional
abandonment of a claim is
precisely the context that
application of the concept of
abuse of the writ is intended to
address. Witt, 755 F.2d at 1397.
Petitioner may be deemed to have
waived his right to a hearing on
a successive application for
federal habeas relief when he
deliberately abandons one of his
grounds at the first hearing.
825 F.2d at
294.
When asked at
the second federal habeas
hearing why he did not pursue
the Massiah claim in his first
federal petition, counsel
responded that his efforts to
find evidence in support of the
claim had failed. It appears,
however, that these efforts were
somewhat lacking. Counsel
testified that he informally
attempted to contact jailers at
the Fulton County Jail, but that
they could provide him with no
information.
He also noted that at a
deposition taken for the first
state habeas hearing, Russell
Parker, the District Attorney
prosecuting the case, claimed
that he was unaware of any
instance in which Evans had
worked for the Atlanta Police
Department prior to his
overhearing conversations at the
Fulton County Jail. Counsel
testified that he did not carry
the Massiah claim over into the
federal habeas petition because
he "looked at what we had been
able to develop in support of
the claim factually in the state
habeas proceeding and made the
judgment that we didn't have the
facts to support the claim and,
therefore, did not bring it into
federal court."
Abandoning a
claim after initial
investigatory efforts prove
unsuccessful cannot insulate a
petitioner from abuse of the
writ. See Witt v. Wainwright,
755 F.2d at 1397 (insufficient
to allege that evidence was not
available if it was within
petitioner's power to elicit
such evidence at time of earlier
petition); Woodard v. Hutchins,
464 U.S. 377, 379 & n. 3, 104
S.Ct. 752, 753 & n. 3, 78 L.Ed.2d
541 (1984) (per curiam) (Powell,
J., concurring, joined by four
other justices) (petitioner
found to have abused the writ
when he is unable to explain why
examination providing evidence
of insanity was not conducted
earlier); Antone v. Dugger, 465
U.S. 200, 205 & n. 3, 206, 104
S.Ct. 962, 964 & n. 3, 965, 79
L.Ed.2d 147 (1984) (per curiam)
(haste with which first habeas
petition prepared does not
require courts to consider
claims withheld from that
petition if substance could have
been presented in first petition).
McCleskey
places great emphasis on the
fact that the State allegedly
withheld Evans' 21-page
statement from both trial and
habeas counsel. The statement
was ultimately obtained in June
of 1987 through a request
pursuant to the Georgia Open
Records Act, O.C.G.A. Sec.
50-18-72(a). It is clear,
however, that the statement
itself does not demonstrate the
existence of a Massiah violation.
At most, it was simply the
catalyst that caused counsel to
pursue the Massiah claim more
vigorously. The key piece of
evidence supporting McCleskey's
Massiah claim was the testimony
of Worthy, who testified for the
first time at the second federal
habeas hearing in July of 1987.
Counsel claims that he did not
discover Worthy until he engaged
in a "massive, indiscriminate
effort to subpoena everyone
whose name was mentioned in any
document." McCleskey has not
presented any reason why counsel
would have been unable to
contact Ulysses Worthy back in
1981 when the first federal
habeas petition was filed. Nor
has he shown that a more
extensive effort at that time to
track down persons with
information as to what
transpired in the county jail
during the summer of 1978 would
not have turned up Worthy. A
petitioner and his counsel may
not circumvent the abuse of the
writ doctrine by failing to
follow through with an
investigation and then later
asserting that the claim could
not have succeeded earlier on
the facts as then known. It will
only be possible to avoid
piecemeal litigation if counsel
is required to make a thorough
investigation of the facts at
the time of petitioner's first
petition for habeas corpus.
C. Ends of
Justice
Having found
that McCleskey abused the writ
by deliberately abandoning his
Massiah claim, we must now
decide whether the "ends of
justice" require consideration
of his claim on the merits.
See Sanders v. United States,
373 U.S. at 16-19, 83 S.Ct. at
1078-79. In Kuhlmann v. Wilson,
the Supreme Court attempted to
give greater content to the
open-ended "ends of justice"
inquiry. Its statement, however,
that "the 'ends of justice'
require federal courts to
entertain such petitions only
where petitioner supplements his
constitutional claim with a
colorable showing of factual
innocence," 477 U.S. at 454, 106
S.Ct. at 2627, commanded only a
plurality of the justices. See
Messer v. Kemp, 831 F.2d 946,
958 n. 19 (11th Cir.1987) (en
banc), cert. denied,
485 U.S. 1029 , 108 S.Ct.
1586, 99 L.Ed.2d 902 (1988).
Thus, the circumstances under
which ends of justice would
require rehearing of an
otherwise abusive petition
remain unparticularized.
We find it
unnecessary to more narrowly
define the circumstances in this
case. For, the instances in
which ends of justice would
require a rehearing of a claim
do not include those in which a
violation of a constitutional
right would be found to
constitute harmless error.
The members of this panel
disagree as to whether the
district court was correct in
finding that McCleskey had
established a Massiah violation.
Pretermitting that inquiry,
however, the panel is unanimous
that any violation that may have
occurred would constitute
harmless error and that the
district court erred in
concluding otherwise.
D.
Harmless Error
The remedy
for a Massiah violation is not
an automatic reversal of a
conviction, but rather the
exclusion of evidence tainted by
the violation of petitioner's
right to counsel. United States
v. Morrison, 449 U.S. 361, 365,
101 S.Ct. 665, 668, 66 L.Ed.2d
564 (1981). The previous use of
the tainted evidence will not
result in a reversal of a
conviction if it constituted "harmless
error." Under the harmless error
doctrine, the state must "prove
beyond a reasonable doubt that
the error complained of did not
contribute to the verdict
obtained." Chapman v.
California, 386 U.S. 18, 24, 87
S.Ct. 824, 828, 17 L.Ed.2d 705
(1967). See also, Satterwhite v.
Texas, 486 U.S. 249, 108 S.Ct.
1792, 1798, 100 L.Ed.2d 284
(1988) (harmless error analysis
applied to sixth amendment
violation tainting evidence in
sentencing phase of capital
trial); Brown v. Dugger, 831
F.2d 1547, 1554 (11th Cir.1987).
In this case,
the district court held that the
error complained of could not be
found harmless because Evans'
testimony concerning McCleskey's
incriminating statements was
critical to the State's case. In
reaching this conclusion, the
court ignored the Eleventh
Circuit's previous discussion in
McCleskey, 753 F.2d at 884-85,
of the importance of the
evidence introduced through
Evans' testimony at trial.
Though that discussion occurred
in the context of McCleskey's
Giglio claim, it clearly has
bearing on the import of Evans'
testimony in the context of
McCleskey's Massiah claim. It is
true, as petitioner argues, that
the harmless error inquiry in
the case of a Giglio claim
differs from the inquiry in the
case of a Massiah violation, but
this difference does not save
McCleskey's claim.
The crucial
question in a Giglio claim is
whether the state's failure to
disclose its promise of reward
to a witness affected the
judgment of the jury as to the
credibility of that witness. See
Giglio, 405 U.S. at 154, 92 S.Ct.
at 766. In its previous opinion,
the Eleventh Circuit held that
the judgment of the jury that
convicted McCleskey was not
affected by the lack of
disclosure. Its holding was
based on two separate grounds.
First, it found that "Evans'
credibility was exposed to
substantial impeachment even
without the detective's
statement and the inconsistent
description of his escape," as
the jury had already been made
aware of Evans' extensive list
of past convictions. 753 F.2d at
884. Second, and more important
for our purposes, the Eleventh
Circuit found that, in light of
all the other evidence presented
to the jury, Evans' testimony
could not " 'in any reasonable
likelihood have affected the
judgment of the jury.' " Id. at
885 (quoting Napue v. Illinois,
360 U.S. 264, 271, 79 S.Ct.
1173, 1178, 3 L.Ed.2d 1217
(1959)). This is precisely the
finding that must be made in a
harmless error analysis under
Massiah and upon reexamination,
we find no reason to disturb
this finding.
Evans was
called by the State on rebuttal
to strengthen its proof that
McCleskey was the triggerman at
the holdup. He testified that
McCleskey had admitted to him
that he had shot the policeman
and that McCleskey had admitted
to wearing makeup to disguise
himself during the robbery. He
also stated that McCleskey said
he would have shot his way out
even if there had been a dozen
policemen.
Turning first
to Evans' testimony regarding
McCleskey's admission that he
was the triggerman, we feel that
the State has met its burden of
proving, beyond a reasonable
doubt, that this testimony did
not contribute to the verdict.
First, as noted by the en banc
court, McCleskey's codefendant,
Ben Wright, also testified that
McCleskey was the triggerman.
Though Georgia law requires
corroboration of an accomplice's
testimony in felony cases, it is
clear that corroboration can be
through circumstantial as well
as direct evidence. Davis v.
State, 178 Ga.App. 760, 344
S.E.2d 730, 732 (Ga.App.1986) (quoting
Gunter v. State, 243 Ga. 651,
655, 256 S.E.2d 341 (Ga.1979)).
The State
presented a substantial amount
of circumstantial evidence.
McCleskey himself confessed to
his participation in the robbery.
The officer was killed by the
man who entered and secured the
front of the store while the
other three men were in the
back. McCleskey was identified
by two of the store personnel as
the robber who came in the front
door. The officer was killed by
a bullet from a .38 caliber
Rossi handgun. The State
presented evidence that
McCleskey had stolen a .38
caliber Rossi in a previous
holdup. The gun that McCleskey
had stolen had a white handle.
The State presented testimony
from an eyewitness that the
robber who ran out the front
door after the robbery was
carrying a pearl-handled pistol.
This evidence not only
corroborates Ben Wright's
testimony, but is of sufficient
quantity to allow this court to
find that any additional
testimony by Evans did not
contribute to the verdict.
Evans'
testimony regarding McCleskey's
statement that he was wearing
makeup could also not have
reasonably affected the jury's
determination. The en banc court
found that:
Evans'
testimony that McCleskey had
made up his face corroborated
the identification testimony of
one of the eyewitnesses.
Nevertheless, this evidence was
not crucial to the State's case.
That McCleskey was wearing
makeup helps establish he was
the robber who entered the
furniture store through the
front door. This fact had
already been directly testified
to by McCleskey's accomplice and
two eyewitnesses as well as
corroborated by McCleskey's own
confession. That Evans'
testimony buttresses one of the
eyewitnesses' identifications is
relatively unimportant.
753 F.2d at
885.
Finally,
petitioner asserts that Evans'
testimony as to McCleskey's
statement that he would have
been willing to shoot twelve
policemen affected the jury's
finding as to the presence of
malice and increased its
willingness to impose a sentence
of death. Once again, we find
that the en banc court's
analysis of this issue
demonstrates that this testimony
was not crucial to the jury's
finding of malice murder. The
court wrote that:
In his
closing argument, however, the
prosecutor presented to the jury
three reasons supporting a
conviction for malice murder.
First, he argued that the
physical evidence showed
malicious intent because it
indicated that McCleskey shot
the police officer once in the
head and a second time in the
chest as he lay dying on the
floor. Second, the prosecutor
asserted that McCleskey had a
choice, either to surrender or
to kill the officer. That he
chose to kill indicated malice.
Third, the prosecutor contended
that McCleskey's statement to
Evans that he still would have
shot his way out if there had
been twelve police officers
showed malice. This statement by
McCleskey was not developed at
length during Evans' testimony
and was mentioned only in
passing by the prosecutor in
closing argument.
Id. at 885.
In addition, the court finds no
reasonable likelihood that the
jury's imposition of the death
penalty was affected by Evans'
testimony. The prosecutor did
not introduce Evans as a witness
at the sentencing phase of trial,
nor did he use Evans' testimony
to portray McCleskey as a
hardened criminal deserving of
death, but concentrated instead
on McCleskey's prior convictions.
Because
evidence other than Evans'
testimony presented in the case
presents such a clear indication
of McCleskey's guilt, this court
finds beyond a reasonable doubt
that the jury would have
convicted and sentenced
McCleskey as it did even without
Evans' testimony. Our
determination that any Massiah
error would be harmless
precludes a finding that the
ends of justice would require us
to entertain McCleskey's claim
on the merits.
CONCLUSION
The judgment
of the district court granting
the petition for writ of habeas
corpus is reversed and the
petition is hereby denied as an
abuse of the writ.
REVERSED.
*****
When after an
evidentiary hearing on the
merits of a material factual
issue, or after a hearing on the
merits of an issue of law, a
person in custody pursuant to
the judgment of a State court
has been denied by a court of
the United States or a justice
or judge of the United States
release from custody or other
remedy on an application for a
writ of habeas corpus, a
subsequent application for a
writ of habeas corpus in behalf
of such person need not be
entertained by a court of the
United States or a justice or
judge of the United States
unless the application alleges
and is predicated on a factual
or other ground not adjudicated
on the hearing of the earlier
application for the writ, and
unless the court, justice, or
judge is satisfied that the
applicant has not on the earlier
application deliberately
withheld the newly asserted
ground or otherwise abused the
writ.
Successive
Petitions. A second or
successive petition may be
dismissed if the judge finds
that it fails to allege new or
different grounds for relief and
the prior determination was on
the merits or, if new and
different grounds are alleged,
the judge finds that the failure
of the petitioner to assert
those grounds in a prior
petition constituted an abuse of
the writ.
The
introduction into evidence of
petitioner's statements to an
informer, elicited in a
situation created to induce the
petitioner to make incriminating
statements without assistance of
counsel, violated the
petitioner's right to counsel
under the Sixth Amendment to the
Constitution of the United
States and Section 2-111 of the
1976 Constitution of the State
of Georgia.
Counsel
apparently made no attempt to
contact persons who clearly had
contact with Evans and McCleskey
at the Fulton County Jail. He
testified that he did not speak
to Detective Dorsey (mentioned
by Evans in his testimony at the
first state habeas hearing), to
Detectives Jowers or Harris (officers
who had investigated the
McCleskey case), or Deputy
Hamilton (who testified at trial
regarding his contact with Mr.
Evans).
Because we
conclude, as a matter of law,
that the record in this case
fails to disclose an Ake
violation, our "ends of justice"
analysis need not proceed any
further. That is, we need not
address any other factors
relevant to the "ends of justice"
in light of our conclusion that
no constitutional violation
occurred.
