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McCleskey (D) was convicted of murder and sentenced to death. D has since pursued both direct and collateral remedies for more than a decade. Ten years after his conviction, D filed a second federal habeas action. The first petition he filed in federal court did not include the Massiah claim that D now makes in this petition. The statements under issue were conversations that D had with Evans a police informant while D was in jail awaiting trial. D claims in his present writ that Evans was acting in direct concert with State officials and that those officials deliberately elicited inculpatory admissions from D in violation of the Sixth Amendment. The court found that the documents nor a witness by the name of Worthy were not capable of being known or discoverable prior to the first writ filing. D claims that because of this ruling that his failure to raise the claims should be excused.

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