McCleskey v. Zant

United States Supreme Court

499 U.S. 467, 11 S.Ct. 1454, 113 L.Ed.2d 517 (1991)

 

Justice Kennedy delivered the opinion of the Court.

 

             ... McCleskey and three other men, all armed, robbed a Georgia furniture store in 1978. One of the robbers shot and killed an off duty policeman who entered the store in the midst of the crime. McCleskey confessed to the police that he participated in the robbery. When on trial for both the robbery and the murder, however, McCleskey renounced his confession after taking the stand with an alibi denying all involvement. To rebut McCleskey’s testimony, the prosecution called Office Evans, who had occupied a jail cell next to McCleskey’s. Evans testified that McCleskey admitted shooting the officer during the robbery and boasted that he would have shot his way out of the store even in the face of a dozen policemen.

 

             Although no one witnessed the shooting further direct and circumstantial evidence supported McCleskey’s guilt of the murder. An eyewitness testified that someone ran from the store carrying a pearl-handled pistol soon after the robbery. Other witnesses testified that McCleskey earlier had stolen a pearl-handled pistol of the same caliber as the bullet that killed the officer. Ben Wright, one of McCleskey’s accomplices, confirmed that during the crime McCleskey carried a white-handled handgun matching the caliber of the fatal bullet. Wright also testified that McCleskey admitted shooting the officer. Finally, the prosecutor introduced McCleskey’s confession of participation in the robbery.

 

             In December 1978, the jury convicted McCleskey of murder and sentenced him to death. Since his conviction, McCleskey has pursued direct and collateral remedies for more than a decade. We describe this procedural history in detail, both for a proper understanding of the case and as an illustration of the context in which allegations of abuse of the writ arise.

 

             On direct appeal to the Supreme Court of Georgia, McCleskey raised six grounds of error... .  The portion of the appeal relevant for our purposes involves McCleskey’s attack on Evans’ rebuttal testimony. McCleskey contended that the trial court “erred in allowing evidence of [McCleskey’s] oral statement admitting the murder made to [Evans] in the next cell, because the prosecutor had deliberately withheld such statement” in violation of Brady v. Maryland (1963). ... A unanimous Georgia Supreme Court acknowledged that the prosecutor did not furnish Evans’ statement to the defense, but ruled that because the undisclosed evidence was not exculpatory, McCleskey suffered no material prejudice and was not denied a fair trial under Brady. ... The court noted, moreover, that the evidence McCleskey wanted to inspect was “introduced to the jury in its entirety” through Evans’ testimony, and that McCleskey’s argument that “the evidence was needed in order to prepare a proper defense or impeach other witnesses ha[d] no merit because the evidence requested was statements made by [McCleskey] himself.” ... The court rejected McCleskey’s other contentions, and affirmed his conviction and sentence. We denied certiorari. ...

 

             McCleskey then initiated postconviction proceedings. In January 1981, he filed a petition for state habeas corpus relief. The amended petition raised 23 challenges to his murder conviction and death sentence. ... Three of the claims concerned Evans’ testimony. First, McCleskey contended that the State violated his due process rights under Giglio v United States (1972), by its failure to disclose an agreement to drop pending escape charges against Evans in return for his cooperation and testimony. Second, McCleskey reasserted his Brady claim that the State violated his due process rights by the deliberate withholding of the statement he made to Evans while in jail. Third, McCleskey alleged that admission of Evans’ testimony violated the Sixth Amendment right to counsel as construed in Massiah v United States (1964). On this theory, “[t]he introduction into evidence of [his] statements to [Evans], elicited in a situation created to induce [McCleskey] to make incriminating statements without the assistance of counsel, violated [McCleskey’s] right to counsel under the Sixth Amendment to the Constitution of the United States.” ...

 

             At the state habeas corpus hearing, Evans testified that one of the detectives investigating the murder agreed to speak a word on his behalf to the federal authorities about certain federal charges pending against him. The state habeas court ruled that the ex parte recommendation did not implicate Giglio, and it denied relief on all other claims. The Supreme Court of Georgia denied McCleskey’s application for a certificate of probable cause, and we denied his second petition for a writ of certiorari. ...

 

             In December 1981, McCleskey riled his first federal habeas corpus petition in the United States District Court for the Northern District of Georgia, asserting 18 grounds for relief. The petition failed to allege the Massiah claim, but it did reassert the Giglio and Brady claims. Following extensive hearings in August and October 1983, the District Court held that the detective’s statement to Evans was a promise of favorable treatment, and that failure to disclose the promise violated Giglio. ... The District Court further held that Evans’ trial testimony may have affected the jury’s verdict on the charge of malice murder. On these premises it granted relief. ...

 

             The Court of Appeals reversed the District Court’s grant of the writ. ... The court held that the State had not made a promise to Evans of the kind contemplated by Giglio, and that in any event the Giglio error would be harmless. ... The court affirmed the District Court on all other grounds. We granted certiorari limited to the question whether Georgia’s capital sentencing procedures were constitutional, and denied relief. ...

 

             McCleskey continued his postconviction attacks by filing a second state habeas corpus action in 1987 which, as amended, contained five claims for relief. ... One of the claims again centered on Evans’ testimony, alleging the State had an agreement with Evans that it had failed to disclose. The state trial court held a hearing and dismissed the petition. The Supreme Court of Georgia denied McCleskey’s application for a certificate of probable cause.

 

             In July 1987, McCleskey filed a second federal habeas action, the one we now review. In the District Court, McCleskey asserted seven claims, including a Massiah challenge to the introduction of Evans’ testimony. ... McCleskey had presented a Massiah claim, it will be recalled, in his first state habeas action when he alleged that the conversation recounted by Evans at trial had been “elicited in a situation created to induce” him to make an incriminating statement without the assistance of counsel. The first federal petition did not present a Massiah claim. The proffered basis for the Massiah claim in the second federal petition was a 21-page signed statement that Evans made to the Atlanta Police Department on August 1, 1978, two weeks before the trial began. The department furnished the document to McCleskey one month before he filed his second federal petition.

 

             The statement related pretrial jailhouse conversations that Evans had with McCleskey and that Evans overheard between McCleskey and Bernard Dupree. By the statement’s own terms, McCleskey participated in all the reported jailcell conversations. Consistent with Evans’ testimony at trial, the statement reports McCleskey admitted and boasting about the murder. It also recounts that Evans posed as Ben Wright’s uncle and told McCleskey he had talked with Wright about the robbery and the murder.

 

             In his second federal habeas petition, McCleskey asserted that the statement proved Evans “was acting in direct concert with State officials” during the incriminating conversations with McCleskey, and that the authorities “deliberately elicited” inculpatory admissions in violation of McCleskey’s Sixth Amendment right to counsel. ... Among other responses, the State of Georgia contended that McCleskey’s presentation of a Massiah claim for the first time in the second federal petition was an abuse of the writ. ...

 

             The District Court held extensive hearings in July and August 1987 focusing on the arrangement the jailers had made for Evans’ cell assignment in 1978. Several witnesses denied that Evans had been placed next to McCleskey by design or instructed to overhear conversations or obtain statements from McCleskey. McCleskey’s key witness was Ulysses Worthy, a jailer at the Fulton County Jail during the summer of 1978. McCleskey’s lawyers contacted Worthy after a detective testified that the 1978 Evans statement was taken in Worthy’s office. the District Court characterized Worthy’s testimony as “often confused and self-contradictory.” ... Worthy testified that someone at some time requested permission to move Evans near McCleskey’s cell. He contradicted himself, however, concerning when, why, and by whom Evans was moved, and about whether he overheard investigators urging Evans to engage McCleskey in conversation. ...

 

             On December 23, 1987, the District Court granted McCleskey relief based upon a violation of Massiah. ...

 

             The Eleventh Circuit reversed, holding that the District Court abused its discretion by failing to dismiss McCleskey’s Massiah claim as an abuse of the writ. ...

 

             McCleskey petitioned this Court for a writ of certiorari, alleging numerous errors in the Eleventh Circuit’s abuse of the writ analysis. In our order granting the petition, we requested the parties to address the following additional question: “Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?” ...

             Our discussion demonstrates that the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. Because of historical changes and the complexity of the subject, the Court has not “always followed an unwavering line in its conclusions as to the availability of the Great Writ.” ... Today we attempt to define the doctrine of abuse of the writ with more precision.

 

             Although our decisions on the subject do not all admit of ready synthesis, one point emerges with clarity: Abuse of the writ is not confined to instances of deliberate abandonment. Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.

 

             The inexcusable neglect standard demands more from a petitioner than the standard of deliberate abandonment. But we have not given the former term the content necessary to guide district courts in the ordered consideration of allegedly abusive habeas corpus petitions. For reasons we explain below, a review of our habeas corpus precedents leads us to decide that the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse of the writ context.

 

             The prohibition against adjudication in federal habeas corpus of claims defaulted in state court is similar in purpose and design to the abuse of the writ doctrine, which in general prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding. The terms “abuse of the writ” and “inexcusable neglect,” on the one hand, and “procedural default,” on the other, imply a back-ground norm of procedural regularity binding on the petitioner. This explains the presumption against habeas adjudication both of claims defaulted in state court and of claims defaulted in the first round of federal habeas. A federal habeas court’s power to excuse these types of defaulted claims derives from the court’s equitable discretion. ... In habeas, equity recognizes that “a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” ... For these reasons, both the abuse of the writ doctrine and our procedural default jurisprudence concentrate on a petitioner’s acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time.

 

             The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review. To begin with, the writ strikes at finality. One of the law’s very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is known. “Without finality, the criminal law is deprived of much of its deterrent effect.” ... And when a habeas petitioner succeeds in obtaining a new trial, the “‘erosion of memory’ and ‘dispersion of witnesses’ that occur with the passage of time,” ... prejudice the government and diminish the chances of a reliable criminal adjudication. Though Fay v Noia ... may have cast doubt upon these propositions, since Fay we have taken care in our habeas corpus decisions to reconfirm the importance of finality. ...

 

             Finality has special importance in the context of a federal attack on a state conviction. ... Reexamination of state convictions on federal habeas “frustrate[s] ... ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’“ ... Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.

 

             Habeas review extracts further costs. Federal collateral litigation places a heavy burden on scarce federal judicial resources, and threatens the capacity of the system to resolve primary disputes. ... Finally, habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to present claims when evidence is fresh.  ...

 

             Far more severe are the disruptions when a claim is presented for the first time in a second or subsequent federal habeas petition. If “[c]ollateral review of a conviction extends the ordeal of trial for both society and the accused,” ... the ordeal worsens during subsequent collateral proceedings. Perpetual disrespect for the finality of convictions disparages the entire criminal justice system... . If re-examination of a conviction in the first round of federal habeas stretches resources, examination of new claims raised in a second or subsequent petition spreads them thinner still. These later petitions deplete the resources needed for federal litigants in the first instance, including litigants commencing their first federal habeas action. The phenomenon calls to mind Justice Jackson’s admonition that “[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones.” ... And if reexamination of convictions in the first round of habeas offends federalism and comity, the offense increases when a State must defend its conviction in a second or subsequent habeas proceeding on grounds not even raised in the first petition.

 

             The federal writ of habeas corpus overrides all these considerations, essential as they are to the rule of law, when a petitioner raises a meritorious constitutional claim in a proper manner in a habeas petition. Our procedural default jurisprudence and abuse of the writ jurisprudence help define this dimension of procedural regularity. Both doctrines impose on petitioners a burden of reasonable compliance with procedures designed to discourage baseless claims and to keep the system open for valid ones; both recognize the law’s interest in finality; and both invoke equitable principles to define the court’s discretion to excuse pleading and procedural requirements for petitioners who could not comply with them in the exercise of reasonable care and diligence. It is true that a habeas court’s concern to honor state procedural default rules rests in part on respect for the integrity of procedures “employed by a coordinate jurisdiction within the federal system,” ... and that such respect is not implicated when a petitioner defaults a claim by failing to raise it in the first round of federal habeas review. Nonetheless, the doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State’s interest in the finality of its criminal judgments.

 

             We conclude from the unity of structure and purpose is the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing a failure to raise a claim at the appropriate time should be the same in both contexts. We have held that a procedural default will be excused upon a showing of cause and prejudice. ... We now hold that the same standard applies to determine if there has been an abuse of the writ through inexcusable neglect.

             Considerations of certainty and stability in our discharge of the judicial function support adoption of the cause and prejudice standard in the abuse of the writ context. Well defined in the case law, the standard will be familiar to federal courts. Its application clarifies the imprecise contours of the term “inexcusable neglect.” The standard is an objective one, and can be applied in a manner that comports with the threshold nature of the abuse of the writ inquiry. ... Finally, the standard provides “a sound and workable means of channeling the discretion of federal habeas courts.” ... “[I]t is important, in order to preclude individualized enforcement of the Constitution in different parts of the Nation, to lay down as specifically as the nature of the problem permits the standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State Courts.” ...

 

             The cause and prejudice standard should curtail the abusive petitions that in recent years have threatened to undermine the integrity of the habeas corpus process. “Federal courts should not continue to tolerate--even in capital cases--this type of abuse of the writ of habeas corpus.” ... The writ of habeas corpus is one of the centerpieces of our liberties. “But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.” ... Adoption of the cause and prejudice standard acknowledges the historic purpose and function of the writ in our constitutional system, and, by preventing its abuse, assures its continued efficacy... .

 

             The history of the proceedings in this case, and the burden upon the State in defending against allegations made for the first time in federal court some 9 years after the trial, reveal the necessity for the abuse of the writ doctrine. The cause and prejudice standard we adopt today leaves ample room for consideration of constitutional errors in a first federal habeas petition and in a later petition under appropriate circumstances. Petitioner has not satisfied this standard for excusing the omission of the Massiah claim from his first petition. The judgment of the Court of Appeals is affirmed.

 

 

Justice Marshall, with whom Justice Blackmun and Justice Stevens join, dissenting.

 

             Today’s decision departs drastically from the norms that inform the proper judicial function. Without even the most casual admission that it is discarding longstanding legal principles, the Court radically redefines the content of the “abuse of the writ” doctrine, substituting the strict-liability” cause and prejudice” standard ... for the good-faith “deliberate abandonment” standard. ... This doctrinal innovation, which repudiates a line of judicial decisions codified by Congress in the governing statute and procedural rules, was by no means foreseeable when the petitioner in this case filed his first federal habeas application. Indeed, the new rule announced and applied today was not even requested by respondent at any point in this litigation. Finally, rather than remand this case for reconsideration in light of its new standard, the majority performs an independent reconstruction of the record, disregarding the factual findings of the District Court and applying its new rule in a manner that encourages state officials to conceal evidence that would likely prompt a petitioner to raise a particular claim on habeas. Because I cannot acquiesce in this unjustifiable assault on the Great Writ, I dissent. ...