Thank You For Submiting Feedback!
The abuse-of-the-writ doctrine examines a petitioner's conduct: The question is whether the petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.
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. 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.
Should McCleskey’s failure to raise the Massiah claim in the first petition be excused?
The requirement of cause in the abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim. The 21-page document unavailable to McCleskey at the time of the first petition does not establish that McCleskey had cause for failing to raise the Massiah claim at the outset. Based on testimony and questioning at trial, McCleskey knew that he had confessed the murder during jail-cell conversations with Evans, knew that Evans claimed to be a relative of Ben Wright during the conversations, and knew that Evans told the police about the conversations. Knowledge of these facts alone would put McCleskey on notice to pursue the Massiah claim in his first federal habeas petition as he had done in the first state habeas petition. But there was more. The District Court's finding that the 21-page document established an ab initio relationship between Evans and the authorities rested in its entirety on conversations in which McCleskey himself participated. Though at trial McCleskey denied the inculpatory conversations, his current arguments presuppose them. Quite apart from the inequity in McCleskey's reliance on that which he earlier denied under oath, the more fundamental point remains that because McCleskey participated in the conversations reported by Evans, he knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police. McCleskey has had at least constructive knowledge all along of the facts he now claims to have learned only from the 21-page document. The unavailability of the document did not prevent McCleskey from raising the Massiah claim in the first federal petition and is not cause for his failure to do so. And of course, McCleskey cannot contend that his false representations at trial constitute cause for the omission of a claim from the first federal petition. Further, the District Court's determination that jailer Worthy's identity and testimony could not have been known prior to the first federal petition does not alter the court’s conclusion. It must be remembered that the 21-page statement was the only new evidence McCleskey had when he filed the Massiah claim in the second federal petition in 1987. Under McCleskey's own theory, nothing was known about Worthy even then. If McCleskey did not need to know about Worthy and his testimony to press the Massiah claim in the second petition, neither did he need to know about him to assert it in the first. Ignorance about Worthy did not prevent McCleskey from raising the Massiah claim in the first federal petition and will not excuse his failure to do so.