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Classification: Murderer
Characteristics: Jewelry store robbery
Number of victims: 1
Date of murder: May 13, 1978
Date of birth: 1957
Victim profile: Frank Schlatt (police officer)
Method of murder: Shooting (.38 caliber Rossi revolver)
Location: Cobb County, Georgia, USA
Status: Executed by electrocution in Georgia on September 25, 1991

Supreme Court of the United States


McCleskey v. Kemp
(No. 84-6811) 753 F.2d 877, affirmed.

syllabus opinion

Warren McCleskey

Sep 25, 1991

On the morning of May 13, 1978, Warren McCleskey, using his car, picked up Ben Wright, Bernard Dupree and David Burney. All four had planned to rob a jewelry store in Marietta that day.

After Ben Wright went into the store to check it out, they decided not to rob it. All four then rode around Marietta looking for another place to rob but couldn't find anything suitable. They drove to Atlanta and decided on the Dixie Furniture Store as a target. 

Each of the four was armed. McCleskey had a .38 caliber Rossi nickel-plated revolver, Ben Wright carried a sawed-off shotgun, and the two others had blue steel pistols.

McCleskey parked his car up the street from the furniture store, entered the store, and "cased" it. After McCleskey returned to the car, the robbery was planned.

Executing the plan, McCleskey entered the front of the store and the other three came through the rear by the loading dock. McCleskey secured the front of the store.

The others rounded up the employees in the rear and began to tie them up with tape. All the employees were forced to lie on the floor.

The manager was forced at gunpoint to turn over the store receipts, his watch and six dollars. George Malcom, an employee, had a pistol taken from him at gunpoint.

Before all the employees were tied up, Officer Frank Schlatt, answering a silent alarm, pulled his patrol car up in front of the building.

He entered the front door and proceeded approximately fifteen feet down the center aisle where he was shot twice, once in the face and once in the chest. The chest shot glanced off a pocket lighter and lodged in a sofa. That bullet was recovered. The head wound was fatal. The robbers fled.

Sometime later, McCleskey was arrested in Cobb County in connection with another armed robbery. He confessed to the Dixie Furniture Store robbery, but denied the shooting. Ballistics showed that Officer Schlatt had been shot by a .38 caliber Rossi revolver.

The weapon was never recovered but it was shown that McCleskey had stolen such a revolver in the robbery of a Red Dot grocery store two months earlier. McCleskey admitted the shooting to a co-defendant and also to a jail inmate in the cell next to his, both of whom testified for the state.


Warren McCleskey Is Dead

The New York Times

September 29, 1991

Warren McCleskey, who died in Georgia's electric chair last week, was no saint or hero. He was a robber, part of a gang that shot and killed an off-duty police officer during a holdup. Thirteen years later, however, a question reverberates: Did Warren McCleskey deserve the chair?

For the question to outlive him is a damning commentary on capital punishment in the United States.

When the Supreme Court upheld the constitutionality of executions in 1976, it held out the promise of punishments determined with fairness and care, under special procedures and guidelines. Death is different, the Court recognized, irretrievable even when the state makes mistakes.

Further, even the most vengeful citizen comes to realize there's a practical limit to capital punishment. Society would find it hard to execute everyone who is technically eligible. With 2,500 killers now on death row, it would take an execution a day for eight years to clear out the backlog.

Warren McCleskey's lawyers proved, in his first trip to the Supreme Court, that Georgia courts condemned blacks who killed whites four times as often as when the victim was black. Yet the Court, by a 5-to-4 vote, ruled in 1987 that this shameful pattern made no difference. To succeed, an accused must prove that racial prejudice animated his judge, his prosecutor or his jury.

Unable to meet that impossible burden, Warren McCleskey's lawyers proceeded to prove something else, also alarming: Georgia prosecutors had obtained the most damaging evidence against him, his alleged admission that he was the triggerman, from a jailhouse informant who was planted by Atlanta police in violation of Mr. McCleskey's rights. The state hid the informant's status for a decade, stonewalling defense attempts to throw out or discredit his testimony.

His lawyers thus spared Warren McCleskey, for the moment. Last April the Supreme Court ruled, 6 to 3, that they had waited too long to raise the claim, even though they lacked the proof -- which the state was hiding -- at the time they were supposed to raise it. So once again, Warren McCleskey was again scheduled to go to the electric chair.

Then, just days ago, two former jurors told the Georgia Board of Pardons and Paroles that their votes to sentence Warren McCleskey to death would have been different had they known the informant was a police plant, with an incentive to bargain for leniency in his own criminal case. Too late.

The only other evidence that Mr. McCleskey had been the gunman came from an accomplice to the robbery. All four holdup men were legally responsible for the killing no matter who pulled the trigger, but Mr. McCleskey was the only one executed -- on evidence that was illegally obtained, incomplete and questionable. Too little.

Some supporters of the death penalty are outraged that Mr. McCleskey lived so long, surviving through the ingenuity of writ-writing lawyers. But many other Americans are more interested in sure justice than in certain death. They are left to feel outrage for a different reason, and what makes it worse is that they cannot look for relief to the Supreme Court of the United States.


Georgia Inmate Is Executed After 'Chaotic' Legal Move

By Peter Applebome - The New York Times

September 26, 1991

Warren McCleskey, whose two unsuccessful appeals to the United States Supreme Court helped define death penalty law, was executed this morning after an all-night spasm of legal proceedings that played out like a caricature of the issues his case came to symbolize.

Mr. McCleskey, a black, 44-year old factory worker who was convicted of killing a white police officer here during an attempted robbery in 1978, was electrocuted at the state prison in Jackson, Ga., after a series of stays issued by a Federal judge was lifted.

But when he died, after declining a last meal and after being strapped into the chair at one point and then unstrapped three minutes later, his execution added a final chapter to his odyssey through the courts.

In a final legal scramble, the Supreme Court twice refused a stay -- once at about 10 P.M. on Tuesday, after a state court denied last-minute appeals, and then just before 3 A.M. today, after a similar appeal was rejected by lower Federal courts. The Court's 6-to-3 decisions came after the Justices were polled by telephone. A 'Chaotic' Appeals Process

Five minutes later, after Mr. McCleskey had been strapped into the electric chair, electrodes attached to his skull and a final prayer read, prison officials were told the Supreme Court had rejected a final stay. A minute later the execution began, and he was pronounced dead at 3:13.

A spokesman for the Georgia Department of Pardons and Paroles described the process, which began with the parole board's denial of a clemency petition on Tuesday, as "chaotic."

Justice Thurgood Marshall of the Supreme Court, who was one of three dissenters in the Court's decision not to halt the execution, was considerably more stinging in his dissent.

Justice Marshall, who will retire when his successor is confirmed by the Senate, wrote: "In refusing to grant a stay to review fully McCleskey's claims, the Court values expediency over human life. Repeatedly denying Warren McCleskey his constitutional rights is unacceptable. Executing him is inexcusable."

But state officials said Mr. McCleskey's final appeals were typical of the seemingly endless litigation a landmark Supreme Court ruling on his second appeal was intended to stop. Clemency Petition Rejected

On Tuesday morning the five-member Georgia Board of Pardons and Paroles turned down Mr. McCleskey's clemency petition, apparently closing off the last obstacle to an execution. In Georgia, only the board has the authority to commute a death sentence. The board acted despite statements from two jurors that information improperly withheld at the trial tainted their sentence, and that they no longer supported an execution.

Mr. McCleskey's execution was initially scheduled for 7 P.M. Tuesday, but shortly before that Federal District Judge J. Owen Forrester agreed to stay the execution, first until 7:30, then until 10 and then until midnight, to hear a last-minute appeal filed in three different courts.

Judge Forrester denied the appeal after a hearing ended around 11:20 P.M., but he stayed the execution until 2 o'clock this morning to allow lawyers to appeal it. At 2:17 A.M. Mr. McCleskey was into the electric chair, only to be taken away three minutes later when officials learned the High Court was still pondering a stay.

He was placed back in the chair at 2:53 A.M. under the assumption that no news from the Court meant the execution was still on. Word that the Court had denied a stay came just as the execution was ready to begin at 3:04. Two Landmark Rulings

Mr. McCleskey, who filed repeated appeals over the 13 years between his conviction and his death and has had a long succession of lawyers, produced two landmark rulings in death penalty law.

In 1987, in the last major challenge to the constitutionality of the death penalty, the Supreme Court voted, 5 to 4, that the death penalty was legal despite statistics showing that those who kill white people are far more frequently sentenced to die than are those who kill blacks.

Last April the Court voted, 6 to 3, that Mr. McCleskey's claim that his sentence was tainted by information withheld from the jury should be rejected because he failed to make the claim on his first habeas corpus petition. In doing so, the Court spelled out strict new guidelines that sharply curtailed the ability of death row inmates and other state prisoners to pursue multiple Federal court appeals.

Mr. McCleskey was the 155th person to be executed since the Supreme Court cleared the way in 1976 for states to resume capital punishment.

Mr. McCleskey admitted to being one of four men involved in a robbery in which Officer Frank Schlatt was killed, but he denied being the one who shot him. None of the other men received the death sentence.

Before the execution he apologized to Officer Schlatt's family for taking part in the attempted robberry, asked his own family not to be bitter about his death, professed his religious beliefs and decried the use of the death penalty. He neither confessed to being the gunman nor did he say he was innocent of the killing.

"I pray that one day this country, supposedly a civilized society, will abolish barbaric acts such as the death penalty," he said. '13 Years too Say Goodbye'

Officer Schlatt's daughter said the execution renewed her faith in the justice system.

"I feel for his family, but he's had 13 years to say goodbye to his family and to make peace with God," said Jodie Schlatt Swanner. "I never got to say goodbye to my father. This has nothing to do with vengence. It has to do with justice."

But Mr. McCleskey's supporters, who held demonstrations here and in Washington, said Mr. McCleskey's case from beginning to end was a potent argument against the death penalty as it is used in the United States.

"Ten years ago the idea that we would execute someone in violation of the Constitution was so abhorrent no one could imagine it happening," said Stephen Bright, director of the Southern Center for Human Rights in Atlanta, which does legal work for the poor. "Now, as a result of the Rehnquist Court, what we're seeing and what we're going to see in case after case is people going to the execution chamber in cases in which the jury did not know fundamental things about the case."

The case against Mr. McCleskey was largely circumstantial. Testimony came from one of the other robbers, who named Mr. McCleskey as the gunman, and from another prisoner, Offie Evans who told jurors Mr. McCleskey had confessed to him in jail.

Jurors were not told that Mr. Evans was a police informer who was led to believe that his sentence would be shortened if he produced incriminating evidence against Mr. McCleskey. His lawyers learned of Mr. Evans's ties to the police after the trial through documents obtained under the Freedom of Information Act.


McCleskey v. Kemp, 481 U.S. 279 (1987), was a United States court case, which eventually came before the Supreme Court of the United States, that Coenen describes as being the "most far-reaching post-Gregg challenge to capital sentencing".


Petitioner was convicted of two counts of armed robbery and one count of murder. At the penalty hearing, the jury imposed the death penalty because petitioner did not provide any mitigating circumstances.

On appeal to Federal courts via a habeas petition, petitioner alleged the state's capital sentencing process was administered in a racially discriminatory manner in violation of the Fourteenth Amendment. Petitioner based his claims on the Baldus study that indicated a risk that racial consideration entered into capital sentencing determinations.

Opinion of the Court

The Court, in an opinion by Justice Lewis Powell, held that the statistical study did not present substantial evidence that would require a reversal of petitioner's conviction. The Court concluded that the lower court had properly applied Georgia law.

David Baldus, a law professor at the University of Iowa College of Law, studied twenty-five hundred murder cases in Georgia. Baldus’ study established that African Americans convicted of murdering whites had a higher chance of receiving the death penalty. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.

Although many sided with Baldus’ study, the Court failed to accept McCleskey’s argument that the findings documented by Baldus rendered the death penalty unconstitutional and racially discriminating.

Particularly salient to McCleskey's claim were figures from the study which showed that although only 9.2% of all Georgia homicides involved black defendants and white victims, prosecutors sought the death penalty in 70% of those cases. Inversely, over 60.7% of all Georgia homicides involved black victims, yet prosecutors sought the death penalty in those cases only 34% of the time. The overall effect was the death penalty being applied to 22% of the black defendants convicted of killing white victims(only 9.2% of all Georgia homicides), versus a roughly 12% death penalty application for all the other categories combined (white defendant & white victim; white defendant & black victim; black defendant & black victim). Most notably, a death penalty conviction was given in only 1% of the cases involving a black victim and a black defendant.

Dissenting opinions

Three dissenting opinions were filed by Justices Brennan, Blackmun, and Stevens. The dissenters largely agreed with and cross-joined one anothers' dissents, and Justice Marshall joined two of the dissents.

Brennan's lengthy dissent noted at the outset the belief he shared with Justice Marshall that "the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments." Brennan further contended that, even if capital punishment were constitutional, this could hardly be so where it was demonstratably biased against members of a particular race.

Blackmun's dissent largely echoed Brennan's concerns regarding the evidence of racial bias in capital cases.

Stevens did not go so far as to suggest that the death penalty was inherently inappropriate under these circumstances, but stated that the case should have been remanded to the Court of Appeals for a determination of the validity of the Baldus study.


McClesky v. Kemp has bearing on claims broader than those involving the death penalty. McClesky has been used to illustrate that claims based on government denial of "equal protection of the laws" to racial minorities may fail unless something more than a mere discriminatory effect can be shown. The Supreme Court generally requires, in addition to discriminatory effect, that a discriminatory purpose be shown as the government's motivation for creation the law in the first place. See: Washington v. Davis, 426 US 229 (1976), and Personnel Administrator of Massachusetts v. Feeney, 442 US 256 (1979) for further clarification of this concept. Thus, although a discriminatory effect may be an ingredient of a successful Equal Protection claim, it is probably insufficient on its own. See Palmer v. Thomas, 403 US 217 (1971). Overall, McClesky may be seen to clarify the Supreme Court's desire to punish discriminatory acts by government rather than merely discriminatory effects.

Later Comments

Justice Lewis Powell, when asked by his biographer if he wanted to change his vote in any case, replied, "Yes, McCleskey vs Kemp."


890 F.2d 342

Warren Mccleskey, Petitioner-Appellee,
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.


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.


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.2


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)3 and Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts.4 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).5 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).6 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 2630.7

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.8 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.9 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,10 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.11 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.12 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.13

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.14 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.15 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.16

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.


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.



1 The statement of facts is taken from the Georgia Supreme Court's opinion on direct appeal, McCleskey v. The State, 245 Ga. 108, 263 S.E.2d 146 (1980)

2 This court stayed the briefing schedule of the appeal pending the State's filing in district court of a motion under Fed.R.Civ.P. 60(b) for relief from the judgment based on the availability of witness Offie Evans. The district court denied the motion and this court granted the State's motion to consolidate the State's original appeal and its appeal from the denial of the motion for relief from the judgment

3 28 U.S.C. Sec . 2244(b) states as follows:

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.

4 Rule 9(b) provides as follows:

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.

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981

6 In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981

7 In Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988), this circuit characterized petitioner's burden in a Massiah/Henry claim as one involving two elements: "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 incriminating statements from the accused." Id. at 1020

8 For instance, Evans told McCleskey that his name was Charles, that he was the uncle of codefendant Ben Wright, and that he was supposed to be a participant in the robbery himself

9 In an amendment to his first state petition, McCleskey alleged that:

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.

10 Evans testified at trial as to certain statements that McCleskey had made in prison

11 In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court held that the state violates due process when it obtains a conviction on the basis of a witness's testimony when the witness has failed to disclose a promise of favorable treatment from the prosecution. McCleskey included a Giglio claim in his first state and first federal habeas petitions

12 At his second federal habeas hearing, the lawyer who represented McCleskey at the first federal habeas hearing testified that he "spoke with a couple of Atlanta Bureau of Police Services Officers" in order to find out how to develop factual evidence in support of a claim. Pursuant to their suggestion, counsel spoke with two or three persons who were deputies at the Fulton County Jail. He testified that "none of them had any information. Basically they had no recollection of the circumstances regarding how Evans came to be assigned to the jail cell that he was assigned to or of any conversations with the Atlanta Bureau of Police Services Detectives regarding Offie Evans' assignment to that jail cell."

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).

13 We also note that in 1981 there apparently still existed records listing each prisoner's cell assignment and any visitation of prisoners by outsiders. These records, which would have corroborated or disproved Worthy's testimony, have since been destroyed

14 The district court did not reach the "ends of justice" inquiry as it found that McCleskey's claim did not constitute abuse of the writ

15 See Messer v. Kemp, 831 F.2d at 958-59:

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.

16 This case can easily be distinguished from Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), a case that petitioner cites as controlling. In Satterwhite, a psychiatrist, who had interviewed the defendant in violation of his sixth amendment rights, testified in a separate sentencing proceeding that the defendant presented a threat to society through continuing acts of violence. In finding that the constitutional error was not harmless, the Court stressed that under Texas law, a jury may not sentence a defendant to death unless it finds that the defendant would commit acts of violence and would be a threat to society. Additionally, the Court found that the psychiatrist's testimony stood out "both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message." Id. at ----, 108 S.Ct. at 1799. In the instant case, the jury was not instructed as to future dangerousness, and the Eleventh Circuit found, in its previous discussion of the Giglio violation, that Evans' testimony had already been greatly impeached by his own criminal background. 753 F.2d at 884



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