111 S.Ct. 1454 (1991), argued 30 Oct. 1990, decided 16 Apr. 1991 by vote of 6 to 3; Kennedy for the Court, Marshall in dissent, joined by Blackmun and Stevens. Warren McCleskey's first challenge to his death sentence for murder was rejected by the Supreme Court in McCleskey v. Kemp (1987). Four years later he filed a second habeas corpus petition alleging that before his trial the state of Georgia had improperly induced him to make incriminating statements without the assistance of counsel. These statements (conversations with a fellow prisoner) were used against him at trial. The Court's decision, rejecting this claim, clarifies the standard for determining “abuse of the writ” and substantially narrows the possibility of habeas corpus relief in death penalty cases.
Claims deliberately abandoned in earlier petitions for a writ and included in a subsequent petition clearly constitute abuse of the writ, as do those omitted through inexcusable neglect. To avoid this, in second and later petitions the defendant must show cause, that is, he must show that his failure to raise the claim earlier was impeded by factors beyond his control. He must also show that the errors of which he complains resulted in actual prejudice. The only exception to this “cause and prejudice” standard is when the presented claim reveals an error so fundamental that the conviction came despite the petitioner's factual innocence.
McCleskey supported his allegation of the state's involvement in eliciting his harmful statements only after his first petition for habeas corpus, but the Supreme Court held that the facts of the trial should have put him on notice that the claim should have been pursued immediately. Nor did McCleskey show that the alleged violation resulted in the conviction of an innocent defendant. Hence, relief was denied. McCleskey was executed on 25 September 1991.
Michael L. Radelet