# McCleskey v. Zant

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## Dissenting Opinion

    Marshall
United States Supreme Court
499 U.S. 467
McCleskey v. Zant
No. 89-7024 Argued: Oct. 31, 1990. --- Decided: April 16, 1991
Rehearing Denied June 17, 1991.
See 501 U.S. 1224, 111 S.Ct. 2841.
Syllabus
To rebut petitioner McCleskey's alibi defense at his 1978 Georgia trial for murder and a related crime, the State called Offie Evans, the occupant of the jail cell next to McCleskey's, who testified that McCleskey had admitted and boasted about the killing. On the basis of this and other evidence supporting McCleskey's guilt, the jury convicted him and sentenced him to death. After the State Supreme Court affirmed, he filed an unsuccessful petition for state habeas corpus relief, alleging, inter alia, that his statements to Evans were elicited in a situation created by the State to induce him to make incriminating statements without the assistance of counsel in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. He then filed his first federal habeas petition, which did not raise a Massiah claim, and a second state petition, both of which were ultimately unsuccessful. Finally, he filed his second federal habeas petition in 1987, basing a Massiah challenge on a 21-page statement that Evans had made to police two weeks before the trial. The document, which the State furnished at McCleskey's request shortly before he filed his second federal petition, related conversations that were consistent with Evans' trial testimony, but also recounted the tactics used by Evans to engage McCleskey in conversation. Moreover, at a hearing on the petition, Ulysses Worthy, a jailer during McCleskey's pretrial incarceration whose identity came to light after the petition was filed, gave testimony indicating that Evans' cell assignment had been made at the State's behest. In light of the Evans statement and Worthy's testimony, the District Court found an ab initio relationship between Evans and the State and granted McCleskey relief under Massiah. The Court of Appeals reversed on the basis of the doctrine of abuse of the writ, which defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent habeas corpus petition.
Held: McCleskey's failure to raise his Massiah claim in his first federal habeas petition constituted abuse of the writ. Pp. 477-503.
(a) Much confusion exists as to the proper standard for applying the abuse-of-the-writ doctrine, which refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. This Court has heretofore defined such abuse in an oblique way, through dicta and denials of certiorari petitions or stay applications, see Witt v. Wainwright, 470 U.S. 1039, 1043, 105 S.Ct. 1415, 1418, 84 L.Ed.2d 801 (MARSHALL, J., dissenting), and, because of historical changes and the complexity of the subject, has not always followed an unwavering line in its conclusions as to the writ's availability, Fay v. Noia, 372 U.S. 391, 411-412, 83 S.Ct. 822, 834-835, 9 L.Ed.2d 837. Pp. 477-489.
(b) Although this Court's federal habeas decisions do not all admit of ready synthesis, a review of these precedents demonstrates that a claim need not have been deliberately abandoned in an earlier petition in order to establish that its inclusion in a subsequent petition constitutes abuse of the writ, see, e.g., Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148; that such inclusion constitutes abuse if the claim could have been raised in the first petition, but was omitted through inexcusable neglect, see, e.g., Delo v. Stokes, 495 U.S. 320, 321-322, 110 S.Ct. 1880, ----, 109 L.Ed.2d 325, and that, because the doctrines of procedural default and abuse of the writ implicate nearly identical concerns, the determination of inexcusable neglect in the abuse context should be governed by the same standard used to determine whether to excuse a habeas petitioner's state procedural defaults, see, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594. Thus, when a prisoner files a second or subsequent habeas petition, the government bears the burden of pleading abuse of the writ. This burden is satisfied if the government, with clarity and particularity, notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then shifts to petitioner. To excuse his failure to raise the claim earlier, he must show cause-e.g., that he was impeded by some objective factor external to the defense, such as governmental interference or the reasonable unavailability of the factual basis for the claim-as well as actual prejudice resulting from the errors of which he complains. He will not be entitled to an evidentiary hearing if the district court determines as a matter of law that he cannot satisfy the cause and prejudice standard. However, if he cannot show cause, the failure to earlier raise the claim may nonetheless be excused if he can show that a fundamental miscarriage of justice-the conviction of an innocent person-would result from a failure to entertain the claim. Pp. 489-497.
(c) McCleskey has not satisfied the foregoing standard for excusing the omission of his Massiah claim from his first federal habeas petition. He lacks cause for that omission, and, therefore, the question whether he would be prejudiced by his inability to raise the claim need not be considered. See Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397. That he may not have known about, or been able to discover, the Evans document before filing his first federal petition does not establish cause, since knowledge gleaned from the trial about the jail-cell conversations and Evans' conduct, as well as McCleskey's admitted participation in those conversations, put him on notice that he should pursue the Massiah claim in the first federal petition as he had done in his first state petition. Nor does the unavailability of Worthy's identity and testimony at the time of the first federal petition establish cause, since the fact that Evans' statement was the only new evidence McCleskey had when he filed the Massiah claim in his second federal petition demonstrates the irrelevance of Worthy to that claim. Moreover, cause cannot be established by the State's allegedly wrongful concealment of the Evans document until 1987, since the District Court found no wrongdoing in the failure to hand over the document earlier, and since any initial concealment would not have prevented McCleskey from raising a Massiah claim in the first federal petition. Amadeo v. Zant, 486 U.S. 214, 224, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249, distinguished. Furthermore, the narrow miscarriage of justice exception to the cause requirement is of no avail to McCleskey, since he cannot demonstrate that the alleged Massiah violation caused the conviction of an innocent person. The record demonstrates that that violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. In fact, the Evans statement that McCleskey now embraces confirms his guilt. Pp. 497-503.
890 F.2d 342 (CA 11 1989), affirmed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. ----.
John Charles Boger, Chapel Hill, N.C., for petitioner.
Mary Beth Westmoreland, Atlanta, Ga., for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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