Gissendaner v. Seabolt
Filing
67
ORDER denying 16 Amended Petition for Writ of Habeas Corpus, filed by Kelly Renee Gissendaner. Signed by Judge Thomas W. Thrash, Jr on 3/21/12. (dr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KELLY RENEE GISSENDANER,
Petitioner,
v.
CIVIL ACTION FILE
NO. 1:09-CV-69-TWT
KATHY SEABOLT
Warden, Metro State Prison,
Respondent.
ORDER
This is a habeas corpus action in a state death penalty case. It is before the
Court on the Amended Petition for Writ of Habeas Corpus [Doc. 16]. For the reasons
set forth below, the Court DENIES the Amended Petition.
I. Background
Petitioner Kelly Gissendaner and her co-defendant Gregory Owen were indicted
in the Superior Court of Gwinnett County on May 1, 1997, on one count of malice
murder and one count of felony murder. The State filed its notice of intent to seek the
death penalty against the Petitioner on May 6, 1997. Following a jury trial, the
Petitioner was convicted of malice murder. The Georgia Supreme Court summarized
the facts of her case as follows:
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Gissendaner and the victim had been married, divorced, remarried,
separated, and reunited between 1989 and 1997. Ms. Gissendaner was
in a relationship with Gregory Bruce Owen and at one point stated to a
coworker that she was unhappy with her husband and in love with Owen.
Prior to Gissendaner’s trial, Owen entered an agreement not to seek
parole within 25 years, pled guilty, and received a sentence of life in
prison. Owen testified at Gissendaner’s trial that it was she who first
raised the idea of murder and that she later raised the idea again several
other times. Owen suggested divorce as an alternative, but Gissendaner
insisted upon murder because she believed she would receive insurance
money from her husband’s death and because she believed he “wouldn’t
leave [her] alone by just divorcing him.” Gissendaner had previously
stated to Owen’s sister that she intended to use the victim’s credit to get
a house and then “get rid of him.”
During the days leading up to the murder, Gissendaner made 47
telephone calls to Owen and paged him 18 times. Telephone records
also showed that the pair were together at a bank of payphones several
hours before the murder. On the evening of February 7, 1997,
Gissendaner drove Owen to her family’s home, gave him a nightstick
and a large knife, and left him inside the home to wait for the victim.
Gissendaner then drove to a friend’s house, and, upon Gissendaner’s
insistence that the group keep their plans for the evening, she and her
friends went out to a nightclub.
The victim arrived home shortly after 10:00 p.m. Owen confronted the
victim from behind, held a knife to his throat, forced him to drive to a
remote location, forced him to walk into the woods and kneel, and then
killed him by striking him with the nightstick and then stabbing him
repeatedly in the back and neck with the knife. As instructed by
Gissendaner, Owen took the victim’s watch and wedding ring before
killing him to make the murder appear like a robbery.
Gissendaner returned home from the nightclub at about the time the
murder was being carried out, paged Owen with a numeric signal, and
then drove to the crime scene. After inquiring if her husband was dead,
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she took a flashlight and went toward the body to inspect it. Owen
burned the victim’s automobile with kerosene provided by Gissendaner,
and the pair returned to their respective homes in Gissendaner’s
automobile. Owen disposed of the nightstick, the knife, a pair of his own
jeans, and the victim’s stolen jewelry by placing them in the garbage. A
pair of Owen’s sweat pants also worn on the night of the murder was
recovered, however, and DNA analysis of blood found on them showed
a likely match with the victim's and Owen’s blood.
After the murder, Gissendaner concealed her relationship with Owen
from police and claimed not to have initiated contact with him for some
time. Telephone records, Owen’s testimony, and other witness
testimony proved otherwise. After her arrest, Gissendaner called her
best friend and confessed to her active and willing role in the murder,
although she then called a second time and claimed that she was coerced
into participating. Gissendaner wrote a letter while in jail in an effort to
hire someone to give perjured testimony and to rob and beat witnesses.
Gissendaner v. State, 272 Ga. 704, 705 (2000).
At the sentencing phase of the trial, the jury found two aggravating
circumstances: (1) that the murder of Douglass Gissendaner was committed during the
commission of a kidnaping with bodily injury, see O.C.G.A. § 17-10-30(b)(2); and (2)
that the Petitioner caused or directed another to commit murder, see O.C.G.A. § 1710-30(b)(6). She was sentenced to death. The Georgia Supreme Court affirmed the
Petitioner’s conviction and sentence on direct appeal and denied her motion for
reconsideration. Gissendaner, 272 Ga. at 704. The United States Supreme Court
denied her petition for a writ of certiorari and her motion for rehearing. Gissendaner
v. Georgia, 531 U.S. 1196 (2001) (rehearing denied, 532 U.S. 1003 (2001)).
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On December 18, 2001, the Petitioner filed a habeas corpus petition in the
Superior Court of DeKalb County. (Res. Ex. 80.) The court held an evidentiary
hearing on December 13 and 14, 2004. On February 16, 2007, the court denied the
petition. (Res. Ex. 123.) On appeal, the Georgia Supreme Court affirmed the
Superior Court’s denial of relief and denied the Petitioner’s motion for
reconsideration. On January 9, 2009, Gissendaner petitioned this Court for a writ of
habeas corpus [Doc. 1], and amended the Petition on May 28, 2009 [Doc. 16]. In a
February 22, 2010 Order, the Court dismissed some of the Petitioner’s claims as
procedurally defaulted and dismissed some as unexhausted [Doc. 39]. The Court now
addresses the merits of the remaining claims in the Amended Petition.
II. Standard for Habeas Corpus Relief
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may not grant habeas corpus relief for claims previously
adjudicated on the merits by a state court unless the state court adjudication resulted
in a decision that (1) “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” or (2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first step
in resolving a federal habeas corpus claim is to determine the “clearly established law
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at the relevant time.” Neelley v. Nagle, 138 F.3d 917, 922 (11th Cir. 1998), cert.
denied, 525 U.S. 1075 (1999); see Williams v. Taylor, 529 U.S. 362, 379 (2000). To
do so, a district court evaluating a habeas corpus petition under 28 U.S.C. §
2254(d)(1) “‘should survey the legal landscape’ at the time the state court adjudicated
the petitioner’s claim to determine the applicable Supreme Court authority; the law
is ‘clearly established’ if Supreme Court precedent would have compelled a particular
result in the case.” Neelley, 138 F.3d at 923. “Clearly established Federal law” does
not refer to decisions of the lower federal courts but, rather, is limited to “the holdings,
as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant
state court decision.” Putman v. Head, 268 F.3d 1223, 1241(11th Cir. 2001) (quoting
Williams, 529 U.S. at 412). The second step of the analysis is to determine whether
the state court adjudication was “contrary to” or an “unreasonable application of” the
clearly established Supreme Court case law. Neelley, 138 F.3d at 923. A state court
decision is contrary to clearly established federal law when it applies a rule that
contradicts the governing law as set forth in cases before the Supreme Court of the
United States. Williams, 529 U.S. at 405; Putman, 268 F.3d at 1241. Additionally,
a “contrary to” finding will result if the state court confronts materially
indistinguishable facts but arrives at a result different from that of the Supreme Court.
Williams, 529 U.S. at 406; Putman, 268 F.3d at 1241. Finally, the Supreme Court has
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explained that the “unreasonable application” prong applies when the “‘state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). In order to
qualify as unreasonable, the state court decision must have been more than incorrect
or erroneous. Id. Rather, the state court’s application of clearly established federal
law must have been “objectively unreasonable.” Id. at 521 (citing Williams, 529 U.S.
at 409).
III. Discussion
A.
Ineffective Assistance of Counsel
The Sixth Amendment guarantees the right to counsel. Strickland v.
Washington, 466 U.S. 668, 684-85 (1984); Powell v. Alabama, 287 U.S. 45 (1932).
As noted in Strickland, “[t]he right to counsel plays a crucial role in the adversarial
system embodied in the Sixth Amendment, since access to counsel’s skill and
knowledge is necessary to accord defendants the ‘ample opportunity to meet the case
of the prosecution’ to which they are entitled.” Strickland, 466 U.S. at 685 (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76 (1942)). For that
reason, the Supreme Court has long held that the right to counsel contemplates the
right to the effective assistance of counsel. Id.; McMann v. Richardson, 397 U.S. 759,
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771 n.14 (1970).
In Strickland, the Supreme Court set out the two components of a claim of
ineffective assistance of counsel. Strickland, 466 U.S. at 687; see also Wiggins v.
Smith, 539 U.S. 510, 521 (2003). A petitioner must first show that counsel’s
performance was deficient. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687.
This requires a showing that counsel’s representation “fell below an objective
standard of reasonableness.” Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 688.
The Petitioner must then also show that counsel’s deficient performance prejudiced
the defense. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687. Unless the
Petitioner makes both showings, it cannot be said that his capital sentence resulted
from a breakdown in the adversarial process that denied him effective counsel.
The standard governing counsel's performance is “reasonableness under
prevailing professional norms.” Strickland, 466 U.S. at 688. “We are not interested
in grading lawyers' performances; we are interested in whether the adversarial process
at trial, in fact, worked adequately.” White v. Singletary, 972 F.2d 1218, 1221 (11th
Cir. 1992). The Petitioner’s burden to prove by a preponderance of the evidence that
counsel's performance was unreasonable is a heavy one. See Chandler v. United
States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). The Petitioner must show that
“no competent counsel would have taken the action that his counsel did take.” Id. at
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1315; Stewart v. Secretary, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007).
The Petitioner “must also establish prejudice—that but for counsel's
unprofessional performance, there is a reasonable probability the result of the
proceeding would have been different.” Ferrell v. Hall, 640 F.3d 1199, 1234 (11th
Cir. 2011) (citing Strickland, 466 U.S. at 694). “It is not enough for the [petitioner]
to show that the errors had some conceivable effect on the outcome of the
proceeding,” because “[v]irtually every act or omission of counsel would meet that
test.” Strickland, 466 U.S. at 693. Nevertheless, a petitioner “need not show that
counsel's deficient conduct more likely than not altered the outcome in the case.” Id.
Instead, the relevant inquiry when a petitioner challenges a death sentence “is whether
there is a reasonable probability that, absent the errors, the sentencer ... would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695.
1.
Mitigating Evidence Investigation
The Petitioner argues that her trial counsel, Ed Wilson and Steve Reilly,1 were
1
The state habeas court found that “Mr. [Steve] Reilly was responsible for
interviewing mitigation witnesses.” (Res. Ex. 123, at 40.) Edwin Wilson was lead
counsel, and “[p]rior to Petitioner’s case, [he] had prosecuted and defended numerous
murder cases.” (Res. Ex. 123, at 32-33.) The state habeas court determined the
following regarding Mr. Reilly:
Mr. Wilson’s co-counsel, Steve Reilly was appointed on June 26, 1997.
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ineffective in their investigation of mitigating evidence for the sentencing phase,
including the Petitioner’s alleged history of sexual abuse and mental health problems.
The Petitioner’s trial counsel had an “obligation to conduct a thorough investigation
of the defendant’s background.” Porter v. McCollum, 130 S. Ct. 447, 452-53 (2009)
(quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)).2 “[E]vidence about the
defendant’s background and character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may be less culpable
Reilly graduated from the University of Georgia Law School in 1986.
Following law school, he served four years of active duty in the U.S.
Army Judge Advocate General’s Corps. In 1990, Mr. Reilly entered
private practice in Gwinnett County. At the time of his representation of
Petitioner, his practice was about 70-75 percent criminal defense.
Despite the fact that this was Mr. Reilly’s first murder case, he had
experience in felony cases such as armed robbery, aggravated assault,
theft and drug cases.
Prior to Petitioner’s case, Mr. Reilly had not attended any death penalty
seminars. However, Wilson provided Mr. Reilly with all the materials
he had obtained from the death penalty seminars. Mr. Reilly reviewed
all the materials that were provided to him. In fact, Mr. Wilson required
Mr. Reilly to review all the death penalty seminar materials prior to
beginning the substantive work in Petitioner’s case. Mr. Reilly received
guidance from Wilson and consulted with more experienced local
attorneys.
(Res. Ex. 123, at 34) (internal citations omitted).
2
Porter v. McCollum was decided after the state habeas court issued its order.
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than defendants who have no such excuse.” Penry v. Lynaugh, 492 U.S. 302, 319
(1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,
concurring)). A defense counsel’s unreasonable failure to investigate mitigating
evidence constitutes deficient performance. “As [the Supreme Court] established in
Strickland, ‘strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.’” Wiggins, 539 U.S. at 528 (quoting Strickland, 466 U.S.
at 690-691).
“A decision not to investigate...‘must be directly assessed for
reasonableness in all the circumstances.’” Wiggins, 539 U.S. at 533 (quoting
Strickland, 466 U.S. at 691). In assessing the reasonableness of the investigation, this
Court must consider “whether the known evidence would [have] lead a reasonable
attorney to investigate further.” Wiggins, 539 U.S. at 527. The Court must also
consider counsel’s perspective at the time investigative decisions were made and give
a heavy measure of deference to counsel’s judgments. Rompilla v. Beard, 545 U.S.
374, 381 (2005).
The state habeas court found that “trial counsel’s investigation and presentation
of the sentencing phase of Petitioner’s case did not constitute deficient performance.”
(Res. Ex. 123, at 51.) This Court cannot find that in reaching this conclusion the state
habeas court made an unreasonable determination of fact, or that its conclusion was
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contrary to, or an unreasonable application of, Supreme Court precedent. This Court
finds that the Petitioner’s trial counsel exercised “reasonable professional judgmen[t]”
in its investigation of the Petitioner’s history of alleged sexual abuse. Wiggins, 539
U.S. at 522-23 (quoting Strickland, 466 U.S. at 691). The state habeas court found
that trial counsel’s mitigation investigation included the following steps:
Both counsel had access to an extensive journal prepared by Petitioner
chronicling her life. Mr. Reilly testified that he interviewed the
following individuals in preparation for the mitigation portion of
Petitioner’s case: Delphia Kemp (grandmother); Larry Brookshire
(father); Edna Brookshire (stepmother); Earl Brookshire (grandfather);
Leon and Marion Brookshire (aunt and uncle); Xan and Tangee
Brookshire (cousins); Bessie Smith (paternal grandmother); Debra West
(cousin); Emmie Conaway (grandmother); Chastine Conaway (uncle);
Darlene Bearden (aunt); Claudine Mullens (aunt); Tommy Conaway
(uncle); Delane Conaway (uncle); Barry Conaway (uncle); Barbara
Grimes (cousin); Shane Brookshire (brother); and Mabel Davenport
(close, personal family friend.)
Mr. Reilly spoke with Petitioner’s mother, Maxine Wade, on a regular
basis and described her as being forthcoming with information. Trial
counsel provided Ms. Wade with a questionnaire entitled “Suggested
Areas to Explore in Defendant’s History” and requested that she answer
the questions. During the conversations with Ms. Wade, she provided
information as to the family life during Petitioner’s childhood.
(Res. Ex. 123, at 40-41) (internal citations omitted).
As detailed above, trial counsel undertook substantial efforts to uncover
potential mitigating evidence for the penalty phase through interviews with those
close to the Petitioner. As a result of these interviews, “[t]rial counsel was aware of
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some of the allegations of physical and sexual abuse as detailed in Petitioner’s journal
and reported by her mother.” (Res. Ex. 123, at 49.) After the interviews, the only
evidence of sexual abuse that counsel possessed was the Petitioner’s claim that she
had been sexually abused and the Petitioner’s mother’s claim that the Petitioner had
been sexually abused. The evidence supporting the Petitioner’s mother’s claim was
derived solely from the Petitioner telling her of the abuse.
Trial counsel’s
investigation did not uncover any witnesses to the abuse (other than the Petitioner),
police reports, medical records, social service reports or other evidence corroborating
the alleged sexual abuse. Even after habeas counsel’s independent investigation into
the alleged abuse, the state habeas court was not presented with any independent
evidence of sexual abuse.
The Petitioner claims that other sources of evidence corroborating sexual abuse
were “readily available.” (Petitioner’s Br., at 50.) The Petitioner cites the affidavits
of the Petitioner’s mother, Darlene Bearden, the Petitioner’s cousin, Sheila Muller,
and the Petitioner’s army friend, Jodi Stephens. Muller and Stephens were not
interviewed by trial counsel. Nonetheless, this Court cannot find that the state habeas
court’s conclusion–that trial counsel’s decision to stop its investigation into the
Petitioner’s life history where it did was reasonable–was contrary to, or an
unreasonable application of, Supreme Court precedent. “Counsel is not required to
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investigate and present all available mitigating evidence in order for counsel's
investigation to be reasonable.” Ford v. Hall, 546 F.3d 1326, 1333 (11th Cir. 2008)
(citing Burger v. Kemp, 483 U.S. 776, 794-95 (1987)). There must be some stopping
point in the investigation. It was highly unlikely that further interviews would lead
to persuasive evidence of sexual abuse when trial counsel made the decision to stop
interviews, and quite frankly, as discussed in the evaluation of prejudice, infra, they
did not.
The Petitioner highlights language in Steve Reilly’s affidavit, which was
produced several years after the sentencing phase of the Petitioner’s trial. Reilly
stated: “Having reviewed the detailed information provided by other family members
in the affidavits referenced hereafter, I realize that I should have more thoroughly
investigated this information and presented it during the sentencing phase.” (Res. Ex.
83, at 313.) While laudable that Reilly is willing to testify to his own error for the
benefit of his former client, this testimony does not persuade the Court that his
decision to forego further interviews was unreasonable. The Supreme Court has
explicitly stated that the state habeas court should consider what a reasonable attorney
would have done at the time the decision was made, and not with the benefit of
hindsight. See Rompilla, 545 U.S. at 381. Reilly’s testimony does not support the
claim that his decision was deficient at the time it was made.
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The state habeas court concluded that “trial counsel made a reasonable strategic
decision not to present [evidence of sexual abuse].” (Res. Ex. 123, at 49.) In light of
the uncorroborated nature of the Petitioner’s claims and her mother’s claims, this was
not an unreasonable determination. As Reilly testified at the habeas evidentiary
hearing, “[A]nything we were going to put up in sentencing had to be substantiated
to the point that it was credible in the eyes of the jury, that couldn’t be tossed aside as
some additional attempt as described that way by the State to defect blame.” (Res. Ex.
83, at 140.) The state sought to portray the Petitioner as a liar, an unfaithful spouse,
a schemer and a manipulator of others. Seasoned trial lawyers have a sense of when
presenting flimsy evidence of doubtful relevance does more harm than good. The
state habeas court determined that the Petitioner’s trial counsel made a strategic
decision to refrain from presenting weak evidence of sexual abuse at the sentencing
hearing, which is a finding of fact that this Court deems reasonable. Having found
that the investigation was sufficient, trial counsel’s strategic decision to not present
evidence of sexual abuse was reasonable.
See Strickland, 466 U.S. at 690
(“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”).
The Petitioner also claims that trial counsel were ineffective in investigating
mental health issues.
The state habeas court determined that trial counsel’s
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investigation of the Petitioner’s mental health issues was reasonable. That finding was
not an unreasonable determination of the facts or contrary to, or an unreasonable
application of, Supreme Court precedent. The Petitioner’s habeas counsel procured
three experts, Dr. Mindy Rosenberg, Dr. William Bernet, and Dr. Myla Young, who
have stated that the Petitioner has serious mental health problems. Habeas counsel
contends that the Petitioner’s trial counsel “failed to conduct a constitutionally
adequate investigation of potential avenues of mitigation, including mental health
evidence.” (Petitioner’s Br., at 55.) This Court disagrees. The Court credits the state
habeas court’s factual determination that Dr. Jim Stark, a psychologist, investigated
potential mitigating circumstances relating to mental health issues in addition to
investigating possible insanity for the guilt phase. However, assuming, arguendo, that
Dr. Stark only investigated “insanity” and “retardation,” this Court would still not find
that the state habeas court contravened or unreasonably applied Supreme Court
precedent in finding counsel’s investigation reasonable.
The Petitioner relies upon Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011) to
argue that an attorney who conducts an insanity investigation alone, and does not
delve into mental health issues for mitigation purposes, performs in a constitutionally
deficient manner. See Ferrell, 640 F.3d at 1213 (“As for the first and most critical
point, the mental health expert who examined [petitioner] before trial...averred that he
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had not been asked to look for brain damage, that he was provided with no material
from counsel other than school records, and that he was not asked to perform any
clinical interview, or do anything else for that matter, for use in mitigation.”)
(emphasis in original). This Court does not review the state habeas court’s decision
under Ferrell because it is not Supreme Court precedent and it was decided after the
state habeas court issued its ruling. Nevertheless, this case is distinguishable from
Ferrell, as well as any Supreme Court case that found that trial counsel did not satisfy
its Sixth Amendment burden when it did not investigate mental health. Unlike Ferrell
and Wiggins, the Petitioner’s self-reported history did not exhibit “red flags” tending
to show mental health problems. In Ferrell, the petitioner suffered a seizure during
the charge conference; “[h]e fell to the floor, ‘flopping,’ shaking and crying out
unintelligibly.” Ferrell, 640 F.3d at 1206. The Ferrell petitioner also had other
conspicuous mental problems. Id. at 1215-20. In Wiggins, trial counsel uncovered
evidence that the petitioner had a very difficult childhood, but did not investigate
further and did not present any of this evidence at the sentencing hearing. Wiggins,
539 U.S. 510, 525 (“The scope of their investigation was also unreasonable in light
of what counsel actually discovered in the DSS records.”).
In the present case, unlike Wiggins, “the known evidence would [not have] lead
a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527. The state
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habeas court found that trial counsel took the following actions related to a mental
health investigation: investigator Dennis Miller, who was hired by the Petitioner’s trial
counsel, obtained the Petitioner’s mental health and medical records, (Res. Ex. 123,
at 38-39), and trial counsel asked the Petitioner’s mother, on the previously mentioned
questionnaire entitled “Suggested Areas to Explore in Defendant’s History,” about the
Petitioner’s mental health. On the questionnaire, the Petitioner’s mother stated that
the Petitioner’s family had no history of mental illness, that the Petitioner had no
mental health history and that there was “no indication of sexual or physical abuse by
parents, siblings, relatives or others.” (Res. Ex. 106, at 7356-57.) The Petitioner was
a high school graduate and served three years in the Army. In addition, trial counsel
never testified that they personally perceived that the Petitioner had mental health
problems. Compare Ferrell, 640 F.3d at 1216 (Petitioner’s initial trial counsel had
“serious questions about [petitioner’s] mental health.”).
After conducting this investigation, including the interview with Dr. Stark,
discussed infra, the only evidence that trial counsel had that suggested potential
mental health problems was the Petitioner’s “Progress Notes” from her voluntary visit
to Northeast Georgia Community Mental Health Center in 1995. (Res. Ex. 99, at
5080-5092.)
The handwritten notes discuss the Petitioner’s apparent trouble
maintaining her temper with her children and her high level of stress. (Id. at 5085.)
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However, one line of the handwritten notes, not cited by either party, appears to say
“3 months ago–had serious suicidal thoughts and plan.”
(Id. at 5088.)
The
Petitioner’s history would not lead one to suspect that she had mental health problems,
as she obtained her high school diploma, was never arrested prior to the murder, and
no one in the Petitioner’s immediate family had been arrested. “[C]ounsel is not
required to seek an independent evaluation when the defendant does not display strong
evidence of mental problems.” Callahan v. Campbell, 427 F.3d 897, 934 (11th Cir.
2005). The Petitioner did not display strong evidence of mental problems of
significant relevance on the issue of mitigation, excusing trial counsel from
investigating further.
Furthermore, the state habeas court concluded that Dr. Stark did investigate the
Petitioner’s mental health for potential mitigating issues, and this Court cannot find
that the state habeas court’s factual conclusion was unreasonable. According to Steve
Reilly, Dr. Stark’s evaluation did not uncover anything “real helpful.” (Res. Ex. 88,
at 1684-85.) Trial counsel, interviewed several years after the investigation, was
unsure whether Dr. Stark’s investigation was limited to determining whether there was
a “retardation” or “insanity” defense, or whether it also extended into determining if
there were potential mitigating mental health problems. Ed Wilson testified at the
state habeas evidentiary hearing, “I’m sure I wanted him to check particularly to see
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if there were a retardation defense involved or if there would have been any sort of
insanity or any place to go in that. Beyond that I’m not sure if we went any further
with that.” (Res. Ex. 83, at 61.) Wilson also testified, “[W]e may not have
specifically oriented him toward mitigation. I think I primarily had him searching for
a defense of either retardation or insanity.” (Id. at 90.) Yet, when asked whether he
would have considered using a mental health expert in mitigation, he said “yes,” and
when asked whether he could have asked Dr. Stark to evaluate the Petitioner for
mitigation purposes, he said “yes.” (Id. at 90-91.) Reilly was also unsure whether Dr.
Stark had evaluated the Petitioner for mitigation purposes, testifying, “I know I didn’t
work with him or supply any information to him in regard to mitigation. I, and again
this is my own independent recollection, I think that Ed, during his conversations with
Dr. Stark about his assessment of Kelly and his visits with her, I assume and I believe
that that covered issues which potentially might have been utilized for mitigation
purposes.” (Id. at 144-45.) However, Reilly did remember that Dr. Stark concluded
that the Petitioner was bi-sexual and that her rejection of this sexual orientation may
have been at the root of her infidelity. (Id.); (Res. Ex. 88, at 1760-61.) Such a
conclusion is clearly outside of the scope of “retardation” and “insanity.” The record
is unclear and the Court cannot say that the state habeas court’s conclusion was
unreasonable. Furthermore, if the state habeas court was unsure whether trial counsel
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asked Dr. Stark to investigate mitigating mental health issues, it correctly gave
counsel “the benefit of the doubt” that counsel took such action. See Strickland, 466
U.S. at 689 (“[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance...”); Williams v. Head,
185 F.3d 1223, 1228 (11th Cir. 1999) (“[W]here the record is incomplete or unclear
about [counsel’s] actions, we will presume that he did what he should have done, and
that he exercised reasonable professional judgment.”). Even without Dr. Stark’s
investigation into mental health evidence, but especially with it (and Dr. Stark’s
failure to uncover anything “real helpful”), the Court cannot find that the state habeas
court’s determination–that counsel acted reasonably in its investigation of potentially
mitigating mental heath evidence–was contrary to, or an unreasonable application of,
Supreme Court precedent. “[T]he mere fact a defendant can find, years after the fact,
a mental health expert who will testify favorably for him does not demonstrate that
trial counsel was ineffective for failing to produce that expert at trial.” Reed v.
Secretary, Fla. Dep’t of Corr., 593 F.3d 1217, 1242 (11th Cir. 2010). The Court
cannot find that the state habeas court unreasonably determined facts or acted contrary
to, or unreasonably applied Supreme Court precedent, in concluding that “trial
counsel’s investigation and presentation of the sentencing phase of Petitioner’s case
did not constitute deficient performance.” (Res. Ex. 123, at 51.)
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Even if trial counsel’s performance were constitutionally deficient, the state
habeas court found that the absence of mitigating evidence of sexual abuse and mental
health issues at the sentencing hearing was not prejudicial to the Petitioner. The state
habeas court correctly weighed the importance of the new sexual abuse and mental
health evidence together in determining that its absence was not prejudicial to the
Petitioner, stating, “Even if the Court were to conclude that counsel’s performance
was deficient, there is not a reasonable probability, that but for this performance, the
result of Petitioner’s trial would have been different.” (Res. Ex. 123, at 52.) Like the
state habeas court, this Court will consider the weight of the mitigating evidence of
sexual abuse and mental health issues together. The Supreme Court has instructed
that “[i]n assessing prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. “In that process,
what matters is not merely the number of aggravating or mitigating factors, but their
weight.” Reed, 593 F.3d at 1240–41 (citing Bobby v. Van Hook, 130 S. Ct. 13, 20
(2009)).
The state habeas court found that there was no prejudice to the Petitioner from
the sexual abuse evidence not being raised during the sentencing proceedings, as the
evidence presented by habeas counsel was unconvincing. Regarding the sexual abuse
evidence, the state habeas court stated that “the allegations of abuse in Petitioner’s
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background contained in the affidavits presented by present counsel are largely
uncorroborated. There is no independent documentary evidence such as mental health
record, DFACS report, police report, or court record confirming these
allegations...some of the evidence of abuse presented to this Court is at best in
conflict...the prosecution surely could have challenged this evidence by presenting the
testimony of Petitioner’s family members.” (Res. Ex. 123, at 49-50) (emphasis
added). In finding that the Petitioner was not prejudiced by the absence of sexual
abuse evidence, the state habeas court distinguished this case from Rompilla, where
there was “a wealth of mitigating information” that Rompilla’s trial counsel failed to
uncover. (Id. at 50.) Here, there was no “smoking gun”; the Petitioner’s new
evidence was highly contested in the state habeas proceedings. (Id. at 50.) The
additional evidence that habeas counsel was able to uncover was not the testimony of
individuals who witnessed any of the alleged sexual abuse, but rather individuals
testifying that the Petitioner had told them about the abuse. And these claims by the
Petitioner tend to grow as her situation becomes more and more desperate. This Court
cannot find that the state habeas court made an unreasonable factual determination in
concluding that new sexual abuse evidence was unpersuasive.
Also, in concluding that the absence of the sexual abuse testimony and mental
health testimony combined was not prejudicial, by inference the state habeas court
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could not have found that there was a reasonable probability that the result of the
sentencing proceeding would have been different if the Petitioner’s new mental health
evidence had been presented.3
This Court agrees that the Petitioner was not
prejudiced by the absence of the new mental health evidence. The new mental health
evidence is unpersuasive.
Dr. Rosenberg bases her report on a social history evaluation that the Court
finds to be biased towards uncritical acceptance of the Petitioner’s self-reports of
traumatic childhood experiences. The Court does not find this surprising as Dr.
Rosenberg was hired by the Petitioner, and has testified for the defense in all of the
approximately sixteen to twenty cases in which she has participated. (Res. Ex. 89, at
1995-97); see Suggs v. McNeill, 609 F.3d 1218, 1230 (11th Cir. 2010) (“[A]
reasonable jury is likely to have been highly skeptical of a penalty-phase expert
who...testifies in many habeas proceedings and usually...on behalf of the defense.”)
(internal quotations omitted). Despite Dr. Rosenberg’s statement that she requires
both positive and negative reports for her to test the veracity of an individual’s
statements, the Court strains to see any mention of the Petitioner’s positive life events
3
The Petitioner argues that the state habeas court “credited the conclusions of
Doctors Bernet, Young, and Rosenberg.” (Petitioner’s Br. at 75, n.23.) The Court
does not agree with this conclusion; the state habeas court simply reported their
conclusions.
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in Dr. Rosenberg’s report. Dr. Rosenberg clearly focuses on the Petitioner’s negative
relationships and exaggerates their importance.
For example, Dr. Rosenberg
chronicles the negative aspects of the life of the Petitioner’s uncle, Eskin Conaway
over five pages; she then testified during her deposition that Eskin “was always in
[Petitioner’s] life until he died.” (Res. Ex. 84, at 433-38; Res. Ex. 89, at 2073.)
However, Eskin died when the Petitioner was approximately ten years old;
furthermore, the Petitioner’s mother said that she did not visit Eskin often and the
Petitioner’s brother recalls going to Eskin’s house only once. (Res. Ex. 109, at 8403,
8404; Res. Ex. 106, at 7529.) When compared to Dr. Rosenberg’s one paragraph
account of the Petitioner’s Uncle Barry Don, about whom Dr. Rosenberg was
apparently unable to find negative information, Dr. Rosenberg’s slant is evident.
When faced with conflicting reports, Dr. Rosenberg credits those that portray family
members in a negative light and credits those that state that incidents of abuse were
more severe. The Court believes that Dr. Rosenberg’s report would be unpersuasive
to a jury, which would have heard testimony from several family members that would
conflict with the report.
Dr. Young concluded that the Petitioner had been experiencing “overwhelming
emotional stress and psychological distress” and had suffered from frontal lobe brain
damage. (Res. Ex. 84, at 402.) There is no evidence to support the opinion of frontal
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lobe brain damage. Dr. Young’s opinion about this would not be admissible in a
federal trial court under Rule 702 of the Federal Rules of Evidence. The Court is not
surprised that a prison inmate that had been sentenced to death would suffer from
emotional stress and psychological distress, and this conclusion is not compelling
mitigating evidence regarding the Petitioner’s state of mind at the time the crime was
committed or regarding mental health problems. Furthermore, Dr. Young reached
these conclusions in a highly questionable way. Dr. Young used the Rorschach test,
which she admitted is considered highly unreliable by the psychiatric community.
(Res. Ex. 89, at 1930.) Dr. Young also conceded that she did not have a mechanism
to determine that the Petitioner was not malingering during this test. Moreover, Dr.
Young did not use an MRI or CAT scan to determine that the Petitioner suffers from
frontal lobe damage, but used her subjective testing. Dr. Young also based her
conclusions on Dr. Rosenberg’s questionable social history evaluation without doing
any independent interviews herself. The Court believes that Dr. Young’s conclusions
would be unpersuasive to a jury.
Dr. Bernet diagnosed the Petitioner with Posttraumatic Stress Disorder
(“PTSD”), Cognitive Disorder, Dysthymic Disorder, and dependent, passive and
submissive personality traits. (Res. Ex. 84, at 349.) Dr. Bernet concluded that these
disorders “would have impaired Ms. Gissendaner’s ability to premeditate, deliberate
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and carry out the plan that she is alleged to have masterminded” and “that the capacity
of Ms. Gissendaner to appreciate the wrongfulness of her behavior or to conform her
conduct to the requirements of the law was impaired by the cumulative affect of her
mental disorders.” (Res. Ex. 84, at 368-69.) Like Dr. Young, Dr. Bernet took Dr.
Rosenberg’s questionable report at “face value,” applying its determinations to make
his conclusions without personally verifying its contents. (Res. Ex. 88, at 1826.) Dr.
Bernet admitted that if the social history reports that were provided to him were
shown to be incorrect that this would “weaken” or “diminish the usefulness” of his
evaluation. (Res. Ex. 88, at 1832, 1834.) Furthermore, his conclusion about the
Petitioner’s inability to “mastermind” the crime is dramatically undercut by his
testimony that the only trial testimony he reviewed from the guilt phase was that of
Gregory Owen and Laura McDuffie, because he was not “trying to figure out whether
or not she actually committed the crime.” (Res. Ex. 88, at 1841, 1847.) Furthermore,
when confronted with facts tending to show that the Petitioner did have a plan to kill
Mr. Gissendaner, Dr. Bernet retreated from his position that the Petitioner could not
have planned the murder by saying that “having a bad plan is consistent with a person
whose abilities are impaired to some extent.” (Res. Ex. 88, at 1850-51.) Dr. Bernet’s
conclusion that the Petitioner had PTSD is strongly undermined by Dr. Garlick’s 2001
conclusion that she did not have PTSD, especially considering that Dr. Bernet spent
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far less time with the Petitioner than Dr. Garlick did and Dr. Bernet did not review Dr.
Garlick’s notes. (Res. Ex. 88, at 1818-1820.) The Court believes that Dr. Bernet’s
conclusions would be unpersuasive to a jury. The Court finds that even if trial counsel
had uncovered all of the new evidence of abuse and all of the new evidence of mental
health problems that there is not a “reasonable probability” that the outcome of the
sentencing proceeding would have been different. Strickland, 466 U.S. at 695.
2.
Expert Testimony Challenging the State’s Physical Evidence
The Petitioner argues that trial counsel was ineffective in its failure to
adequately challenge the State’s use of unreliable crime scene, pathology, and DNA
evidence. (Petitioner’s Br., at 91-92.) The state habeas court found that trial counsel’s
failure to hire experts to challenge the forensic evidence did not constitute deficient
performance. (Res. Ex. 123, at 51-52.) This Court cannot find that the state habeas
court’s decision was based upon an unreasonable determination of the facts or was
contrary to, or an unreasonable application of, Supreme Court precedent.
The Petitioner claims that trial counsel should have hired a crime scene expert,
a pathologist, and a DNA expert. The state habeas court reached the factual
conclusion that trial counsel did hire Dr. Jung Choi as a DNA expert, which is not an
unreasonable determination of fact. (Res. Ex. 123, at 51.) Trial counsel’s decision
to not utilize Dr. Choi at trial was a strategic decision, which is entitled to great
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deference. See Strickland, 466 U.S. at 690. Mr. Wilson testified that he felt confident
that he could cross-examine the State’s pathologist on the pertinent issues, (Res. Ex.
83, at 98), and that he would have hired an independent pathologist if he thought that
one was needed. (Res. Ex. 88, at 1694.) Again, trial counsel made a strategic decision
not to retain a pathologist. Trial counsel hired an investigator, Dennis Miller, who
visited the crime scene several times with trial counsel, and who reviewed the physical
evidence. The Petitioner argues that a crime scene expert and pathologist would have
determined that the murder of Mr. Gissendaner did not occur the way that the State
portrayed it during trial, and necessarily involved the participation of a third party.
Trial counsel’s strategic decision to abstain from hiring a crime scene expert and
pathologist was reasonable, as the State never contended that the Petitioner
participated in the actual killing or was present when the kidnaping or murder took
place. (Res. Ex. 123, at 51.) Furthermore, “[e]ven if such experts had been retained
by trial counsel, the key fact of the State’s case would remain unchallenged: that Greg
Owen killed the Victim at the request of Petitioner.” (Id.) Knowing this, it was
reasonable to think that such an investigation would have been a waste of trial
counsel’s resources; furthermore, the Court’s prejudice evaluation concludes that
habeas counsel did not present any evidence in the habeas evidentiary hearing that
demonstrated that such an investigation would have been worthwhile.
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The new crime scene and DNA evidence presented by habeas counsel would
not have changed the outcome of the Petitioner’s trial, and thus its absence was not
prejudicial. The state habeas court stated that “[t]he testimony of such experts would
not have reduced or mitigated Petitioner’s role in the crime even if such evidence had
established the involvement of a third party.” (Res. Ex. 123, at 51.) The claim that
a third party assisted Owen in the murder is even more improbable than Owen’s
original story. The state habeas court’s legal conclusion is not contrary to, or an
unreasonable application of, Supreme Court precedent.
3.
Trial Counsel’s Challenge to Greg Owen’s Testimony
The Petitioner argues in her Amended Petition, and implies in the prosecutorial
misconduct section of her brief (but does not present an argument in the
ineffectiveness of counsel portion of her brief), that trial counsel failed to adequately
challenge Greg Owen’s testimony. The state habeas court found that trial counsel was
not deficient in challenging Owen’s testimony, and this Court does not find that
conclusion to be an unreasonable determination of the facts or contrary to, or an
unreasonable application of, Supreme Court precedent.
Trial counsel’s performance in this area was not deficient. As determined by
the state habeas court, trial counsel was able to elicit the following inconsistent facts
in Owen’s testimony on cross-examination: “Owen originally lied to police regarding
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his whereabouts on the night of the murder”; “Owen admitted he did not implicate
Petitioner in the murder until after the police had informed him that she was also
seeing other men”; “Owen repeatedly told police that Petitioner had not come to the
scene of her husband’s murder and did not testify at his plea hearing that Petitioner
was at the scene of the murder on the night of the crime”; “What Owen did with the
murder weapon, his clothes and several personal items”; “That Owen lied to police
when he had informed them that he drove around after killing the Victim waiting for
Petitioner to page him.” (Res. Ex. 123, at 47-48.) The state habeas court’s factual
determination that the above inconsistencies were brought out by trial counsel is
reasonable. The legal conclusion that trial counsel was not ineffective because he
failed to impeach Owen on other inconsistencies is not contrary to, or an unreasonable
application of, Supreme Court precedent.
Even if trial counsel’s performance were deficient, the Petitioner was not
prejudiced. The state habeas court concluded: “Even if the Court found trial counsel’s
performance to be deficient in failing to elicit all inconsistencies in Owen’s testimony,
there is no evidence that the additional inconsistencies cited by Petitioner would have
made a difference in the outcome of the case, particularly given the number and
relevance of the inconsistencies trial counsel did elicit.” (Res. Ex. 123, at 48.) This
Court cannot find the state habeas court’s conclusion to be unreasonable as to the facts
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or to be contrary to, or an unreasonable application of, Supreme Court precedent.
B.
Prosecutorial Misconduct
The Petitioner alleges that the state prosecution team suppressed material
exculpatory evidence, presented false evidence, and manufactured evidence for use
against the Petitioner at trial, in violation of the United States Constitution, as
enunciated specifically in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972). The state habeas court denied the Petitioner relief
on these claims, and this Court cannot find that the state habeas court unreasonably
determined facts or reached conclusions that were contrary to, or an unreasonable
application of, Supreme Court precedent.
1.
Brady
Due process is violated when the prosecution suppresses evidence, irrespective
of good or bad faith, that is favorable to the defense and material to the defendant's
guilt or punishment. Brady, 373 U.S. at 87. The standard for analyzing whether the
state violated Brady was correctly recited by the state habeas court as follows:
A Brady violation has four main parts: 1) the State possessed evidence
favorable to the defendant; (2) the defendant did not possess the
favorable evidence and could not obtain it [herself] with any reasonable
diligence; (3) the State suppressed the favorable evidence; and (4) had
the evidence been disclosed to the defense, a reasonable probability
exists that the outcome of the trial would have been different.
(Res. Ex. 123, at 22.)
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The Petitioner argues that the state prosecutors violated Brady by proposing to
Owen that he testify that the Petitioner went with him to the crime scene. During the
October 21, 1998 interview with the prosecution team, Owen stated for the first time
that the Petitioner came to the crime scene on the night of the murder. Previously
during the same interview, and on several prior occasions, Owen claimed that the
Petitioner had not come to the crime scene. Assistant District Attorney George
Hutchinson’s notes from that interview contain the phrase “why not tell defendant
there” (Res. Ex. 85, at 723), with a question mark indicating that one of the
prosecutors asked the question, and marked with an arrow because it was “something
that seemed of significance.” (Res. Ex. 83, at 257-58.) On the next page of the notes,
there is the first recorded mention of Owen stating that the Petitioner was indeed at
the scene of the crime on the night of the murder. (Res. Ex. 83, at 256.)
The Petitioner argues that Hutchinson’s notes provide proof that state
prosecutors prompted Owen to testify that the Petitioner was at the crime scene. All
three members of the state prosecution team, Assistant District Attorney Nancy
Dupree (Res. Ex. 83, at 224), Chief Assistant District Attorney Phil Wiley (Res. Ex.
83, at 242), and Hutchinson (Res. Ex. 83, at 259), testified at the habeas evidentiary
hearing that they never suggested to Owen that he should make the Petitioner appear
to be more culpable in the crime. The state habeas court determined that Hutchinson’s
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note “why not tell defendant there?” did not prove that prosecutors influenced Owen
to change his testimony.4 The Court is unable to find the state habeas court’s
conclusion to be an unreasonable determination of fact.
The Petitioner also argues that state prosecutors violated Brady when they did
not provide the Petitioner with their handwritten notes from an October 21, 1998
interview with Owen. Prosecutors did provide the Petitioner with a typed summary
of the interview. The Petitioner contends that this summary was inadequate, as it
lacked the following statements from Owen: The Petitioner provided the accelerant
Owen used to burn the victim’s car after Owen brought the accelerant from his house
and put it in the Petitioner’s car; the accelerant was kerosene, not gasoline; the
Petitioner drove Owen to the crime scene prior to the murder; the Petitioner gave
4
The state habeas court reasoned:
Owen changed his story to put the Petitioner at the scene of the actual
murder viewing the body. Petitioner has been unable to establish who,
if anyone, actually said this phrase in the interview of Owen. Petitioner
has failed to show a context in which the phrase would influence Owen
to change his testimony. Petitioner’s interpretation of the summary and
the prosecutor’s note is not reasonable. In fact, although Owen seeks to
recant some of his trial testimony in this proceeding, even he still
maintains that no one told him to change his story, but that he did it
based on what he believed “they wanted to hear.”. (sic) Accordingly, the
Court finds no Brady violation with respect to the alleged “prompting.”
(Res. Ex. 123, at 24-25.)
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Owen the knife and night stick from the trunk of her car instead of from under her
seat; the Petitioner handed Owen the kerosene rather than throwing it out of the
window; and Owen put the murder weapons, victim’s possessions, and his own
clothes in a trash bag and discarded them a week after the crime. (Res. Ex. 85 at 71224.)
In order to demonstrate a Brady violation, the Petitioner must show that the
suppressed evidence was material, i.e., there is a reasonable probability that had the
evidence been disclosed to the defense the result of the proceeding would have been
different. United States v. Bagley, 473 U.S. 667, 682 (1985). The state habeas court
found that the handwritten notes were improperly withheld, but that the evidence
would not have made a difference in the outcome of the case. (Res. Ex. 123, at 26.)
As the state habeas court was aware, it should have ruled for the Petitioner if it had
found that there was a reasonable likelihood that if the withheld information had been
provided that the result of the guilt phase or the sentencing phase would have been
different. (Res. Ex. 123, at 25); Kyles v. Whitley, 514 U.S. 419, 436 (1995). A
reasonable likelihood “does not require demonstration by a preponderance that
disclosure of the suppressed evidence would have resulted ultimately in the
defendant’s acquittal.” Id. (citing Bagley, 473 U.S. at 682). When considering the
materiality of withheld evidence, all of the evidence should be considered collectively
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and not item by item. Kyles, 514 U.S. at 436. The state habeas court denied the
Petitioner’s Brady claim because it did not believe that the withheld evidence was
collectively material. This Court does not find that the state habeas court’s finding
was contrary to, or an unreasonable application of, Supreme Court precedent.
Owen testified at trial and at the state habeas evidentiary hearing that the
Petitioner had the kerosene with her in her car when she came to the crime scene.
(Res. Ex. 35, at 2304-06; Res. Ex. 83, at 32.) The typed summary of the October 21,
1998 interview also includes Owen stating the same fact, but omits that Owen said
that he brought the kerosene from his home and put it in the Petitioner’s car
beforehand. This statement can only be found in the prosecution team’s handwritten
notes. (Res. Ex. 85, at 727.) The state habeas court found this evidence to be
immaterial because the accelerant “was not used in the actual killing or in furtherance
of any aggravating factor.” (Res. Ex. 123, at 23-24.)
However, the state habeas court did find that the notes regarding the accelerant
could have been used to impeach Owen. The state habeas court also found that the
notes stating that the accelerant was kerosene rather than gasoline, and that the
Petitioner drove Owen to the crime scene prior to the murder,5 could have been used
5
While this statement could have been used against Owen for impeachment
purposes, it was also inculpatory for the Petitioner.
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to impeach. (Res. Ex. 123, at 23-24.) Suppressed favorable evidence can be either
impeaching or exculpatory; the state habeas court found the evidence regarding the
Petitioner’s presence at the crime scene and the origin of the accelerant to be
impeaching only.6 (Res. Ex. 123, at 22); Brady, 373 U.S. at 88; Strickler v. Greene,
527 U.S. 263, 281-82 (1999). Nonetheless, the state habeas court did not find that this
impeaching evidence would have had a reasonable likelihood of changing the result.
The state habeas court reasoned that defense counsel brought to the jury’s attention
many inconsistencies in Owen’s trial testimony, making further impeachment less
vital, and that the prosecution presented a myriad of evidence in addition to Owen’s
testimony that tended to show the Petitioner’s guilt. (Res. Ex. 123, at 25-26.) This
Court does not find the state habeas court’s determination that the withheld evidence
was immaterial to be unreasonable factually, or contrary to, or an unreasonable
application of, Supreme Court precedent.
2.
Giglio
The Petitioner also argues that the prosecution presented Owen’s testimony
knowing that parts of it were false, in violation of Giglio v. United States, 405 U.S.
150 (1972). The standard for establishing a Giglio claim was correctly laid out by the
6
The state habeas court found the other withheld evidence from the notes listed
above to be neither impeaching nor exculpatory.
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state habeas court as follows: “Petitioner must establish that Owen’s testimony was
false; that the prosecution knew or should have known that the testimony was false;
and that the false testimony was material.” (Res. Ex. 123, at 26) (citing Jacobs v.
Singletary, 952 F.2d 1282, 1287 (11th Cir. 1992)). The state habeas court determined
that the Petitioner did not prove a Giglio violation. The state habeas court’s
discussion of this claim was based on two grounds: 1) the Petitioner did not establish
that Owen’s trial testimony was false, and 2) there was no evidence that the
prosecution knew Owen’s testimony was false. The state habeas court did not address
whether the testimony at issue was material.7
Owen’s story of the events in question changed several times over the course
of his many interviews with the prosecution, his testimony at trial, and his testimony
at the state habeas court. The state habeas court, faced with fluctuating testimony, was
charged with determining which version of Owen’s testimony was the truth. The state
habeas court appears to quickly dismiss Owen’s versions of the story not told in a
court under oath, but still confronts significant factual differences between the stories
told by Owen at trial and those told at the habeas evidentiary hearing. The most
7
The materiality standard of a Giglio claim is more easily satisfied than for
other Brady claims. For a Giglio violation, a petitioner need only show that if not for
the error there was “any reasonable likelihood” that the result of the guilt phase or
sentencing phase would have been different. Ventura v. Attorney General, Fla., 419
F.3d 1269, 1278 (11th Cir. 2005).
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significant differences are:
Owen now maintains that he testified falsely at trial. He now maintains
that: 1) Ms. Gissendaner did not supply the knife; 2) she was not
involved in the planning of the actual killing; 3) Owen had the help of a
third person whom he recruited in the abduction and killing; 4) Ms.
Gissendaner did not know the third person was involved; and 5) Ms.
Gissendaner never went to the murder scene to ensure her husband was
dead.
(Res. Ex. 123, at 27.)
The state habeas court held that Owen’s potential recantation at the habeas
evidentiary hearing did not prove his trial testimony was false, and thus that the
Petitioner failed to establish prong 1 of the Giglio/Jacobs test. The state habeas court
reasoned: “The Georgia Supreme Court gives more credit to trial testimony than to
post trial recantations.” (Res. Ex. 123, at 27.) The state habeas court quotes Norwood
v. State, 273 Ga. 352 (2001):
That a material witness for the State, who at the trial gave direct
evidence tending strongly to show the defendant’s guilt, has since the
trial made statements even under oath that his former testimony was
false, is not cause for a new trial. Declarations made after the trial are
entitled to much less regard than sworn testimony delivered at the trial.
... The only exception to the rule against setting aside a verdict without
proof of a material witness’ conviction for perjury, is where there can be
no doubt of any kind that the State’s witness’ testimony in every material
part is purest fabrication. Fugitt v. State, 251 Ga. 451(1), 307 S.E.2d 471
(1983). A recantation impeaches the witness’ prior testimony. However,
it is not the kind of evidence that proves the witness’ previous testimony
was the purest fabrication.
Norwood, 273 Ga. at 353.
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The state habeas court applied the Norwood standard and found that the
Petitioner did not prove that Owen’s trial testimony “‘was in every material part’
‘purest fabrication’ or, in other words, prove[] that his testimony was impossible.”
(Res. Ex. 123, at 27.) Specifically, the state habeas court found that “[t]here is no
evidence that it was impossible for Petitioner to give Owen the murder weapon, no
evidence that it was impossible for Petitioner to have come to the scene of the crime,
and no evidence that it was impossible for Owen to have committed this crime without
the assistance of an alleged ‘third’ person....The Court finds [the testimony at the
habeas evidentiary hearing] to be one more story told by a witness prone to telling
multiple stories.” (Res. Ex. 123, at 27-28.)
The Petitioner argues that the state habeas court misapplied United States
Supreme Court law by looking to Georgia law for the standard for determining
whether the trial version or habeas evidentiary hearing version was the truth, when
“the proper standard for consideration of the federal false testimony claim is set forth
in Giglio and Napue.” (Petitioner’s Br., at 222.) The Petitioner does not clarify what
that standard is, however, and the Court is unable to determine how those cases
provide guidance for a court attempting to decipher whether a recantation proves trial
testimony to be false. In neither Giglio nor Napue v. People of State of Ill., 360 U.S.
264 (1959), does the Court struggle to determine the truth between conflicting
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testimony, and in neither case does the Court articulate a standard for determining the
truth. In Giglio, after the government’s principal witness testified that he was given
no assurances that he would not be prosecuted in return for testifying, a government
prosecutor admitted in an affidavit that he had made such a promise to the witness.
The Court does not question the truth of the prosecutor’s affidavit. In Napue,
similarly, there is no real question about whether the witness testified falsely–the
second sentence of the opinion already alludes to the “witness’ false testimony.” In
both cases the State admitted that the trial testimony was false. The Court is not
forced to resolve difficult factual questions in either case, and does not provide
guidance for how to solve the type of problem presented here. Thus, the state habeas
court did not act contrary to, or misapply, Supreme Court precedent by searching for
guidance from the Georgia Supreme Court on how to resolve the factual conflict
before it.
The state habeas court did not misapply Supreme Court precedent by applying
Norwood to determine the factual conflict before it. In applying Norwood, the state
habeas court was not unreasonable in concluding that the Petitioner had not proven
the trial testimony to be false. Nothing that Owen said at the habeas evidentiary
hearing made his testimony at the trial impossible. As the state habeas court wrote,
the habeas testimony was simply “one more story told by a witness prone to telling
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multiple stories.” (Res. Ex. 123, at 28.) The state habeas court also made the factual
finding that “there is no evidence before this Court to support the allegations that the
prosecutors knew the testimony was false.” (Id.) This Court cannot find that factual
finding to be unreasonable. In denying the Petitioner’s Gigilio claim, the state habeas
court did not unreasonably determine the facts, or act contrary to, or unreasonably
apply, Supreme Court precedent. Indeed, this Court recognizes that the story told by
Owen in the evidentiary hearing is even more improbable than the story he told at the
trial.
C.
Proportionality of the Death Sentence
Pursuant to O.C.G.A. § 17-10-35, the Supreme Court of Georgia reviews all
death sentences to determine whether the sentence is “excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime and the defendant.”
O.C.G.A. § 17-10-35(c)(3). The Petitioner says that her sentence is disproportionate
and that the Georgia Supreme Court conducted an inadequate and “perfunctory”
proportionality review. (Petitioner’s Br., at 229.) The Petitioner does not have a
constitutional right to a proportionality review. See Pulley v. Harris, 465 U.S. 37, 4651 (1984); Barbour v. Haley, 471 F.3d 1222, 1231 (11th Cir. 2006). Moreover, the
Eleventh Circuit has explicitly stated that district courts should not review the state
supreme court’s proportionality review. Mills v. Singletary, 161 F.3d 1273, 1282 n.9
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(11th Cir. 1998) (citing Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir. 1983) (“A
federal habeas court should not undertake a review of the state supreme court’s
proportionality review...)). Thus, the Court will not do so here.
D.
Actual Innocence
The Petitioner argues that she is not guilty of the crime of malice murder, and
seeks this Court’s review of the Georgia Supreme Court’s ruling upholding her guilty
verdict.8 The standard for demonstrating innocence before a habeas court is very high.
Having been previously found guilty beyond a reasonable doubt, she “no longer has
the benefit of the presumption of innocence.” Schlup v. Delo, 513 U.S. 298, 326
(1995). She must establish:
that no reasonable juror would have found the defendant guilty. It is not
the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires the district
court to make a probabilistic determination about what reasonable,
properly instructed jurors would do. Thus, a petitioner does not meet the
threshold requirement unless he persuades the district court that, in light
8
This Court disagrees with the Petitioner’s assessment that the Georgia Supreme
Court did not rule on whether the Petitioner was guilty, and agrees with the state
habeas court that “[the] claim was raised and decided adversely to Petitioner on direct
appeal in [the Georgia Supreme Court].” (Res. Ex. 123, at 8.) The Georgia Supreme
Court held: “Viewed in the light most favorable to the verdict, we find that the
evidence introduced at trial was sufficient to enable a rational trier of fact to find
beyond a reasonable doubt that Gissendaner was guilty of the crimes of which she was
convicted and that statutory aggravating circumstances existed.” Gissendaner, 272
Ga. at 705.
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of the new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.
Id. at 329. In addition, she must allege a cognizable constitutional error. Id. at 321;
Murray v. Carrier, 477 U.S. 478, 496 (1986). As discussed in the other sections of
this Order, the Petitioner has not presented a cognizable claim of a constitutional
violation. Furthermore, the Petitioner has not demonstrated that she is innocent.
Therefore, the Petitioner cannot make a successful claim for actual innocence before
this Court and also cannot meet the extremely high standard of showing a miscarriage
of justice. Sawyer v. Whitley, 505 U.S. 333, 336 (1992); [Doc. 39, at 11-13].
E.
Jury Selection
This Court found the Petitioner’s clam that the grand jury was discriminatorily
selected to be procedurally defaulted [Doc. 39, at 16]. This Court also found the
Petitioner’s claim that the grand jury foreman was selected discriminatorily to be
procedurally defaulted [Doc. 39, at 16]. Moreover, the discriminatory selection of a
grand jury foreman does not threaten a defendant’s constitutional rights, as the
position is “ministerial,” and thus cannot provide a basis for habeas relief. Hobby v.
United States, 468 U.S. 339, 344-45 (1984); Ingram v. State, 253 Ga. 622, 627 (1984).
The Court also found that the Petitioner had procedurally defaulted her claim that the
jury pools from which the grand and traverse juries were selected had violated her
constitutional rights. [Doc. 39, at 16]. The Petitioner has not provided an argument
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showing cause and prejudice or a miscarriage of justice to overcome the default of any
of these claims. Furthermore, the Petitioner has not proved the selection of the jury
pools violated the United States Constitution. See Duren v. Missouri, 439 U.S. 357,
364 (1979) (stating the requirements to prevail on a Sixth Amendment jury pool
composition challenge); Castaneda v. Partida, 430 U.S. 482, 494 (1977) (stating the
requirements to prevail on a Fourteenth Amendment jury pool composition challenge).
The Petitioner also claims that the jury commission which selected the traverse
jury was unconstitutionally comprised because it contained five rather than six
members. The Court has no evidence before it substantiating the Petitioner’s claim
that there were only five members on the jury commission. Furthermore, the
Petitioner states that this is a violation of O.C.G.A. § 15-12-20, but does not state how
a five-member jury commission offends the United States Constitution.9
F.
Jury Charge
The Petitioner argues that she was denied a fair capital sentencing proceeding,
in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution, when the trial court refused to instruct the jury that their
failure to reach a unanimous decision would automatically lead to a sentence of life
9
The Georgia Supreme Court recently rejected the claim that a five-member jury
commission violates the United States Constitution. Foster v. State, 288 Ga. 98, 101
(2010).
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imprisonment.10 The trial judge instructed the jury that their “verdict as to penalty
must be unanimous.” (Res. Ex. 38, at 2906.) The trial judge did not instruct the jury
that their inability to reach a unanimous verdict would ultimately result in the jury’s
dismissal and the judge imposing a sentence of either life imprisonment or
imprisonment for life without parole. O.C.G.A. § 17-10-31(c). The Petitioner argues
that the judge misled the jury by telling them their verdict had to be unanimous when
in practice had one of the members of the jury refused to vote for the death penalty,
the Petitioner could not have been sentenced to death. The Respondent counters that
the judge did not mislead the jury because he told the truth; the jury had to reach a
unanimous verdict or the jury would have been dismissed and the judge would have
imposed the sentence.
The Court agrees that the judge did not improperly instruct the jury.
Furthermore, the Court does not believe that the trial judge was required to augment
his instructions by notifying the jury as to what would happen if the jury failed to
reach a unanimous verdict and had to be dismissed in favor of a judge-imposed
sentence. The judge is not required to inform the jury as to all of the ramifications of
their decision, see, e.g., United States v. Muentes, 316 Fed. Appx. 921, 926 (11th Cir.
10
Because this claim was not considered by the Georgia Supreme Court on
direct appeal or by the state habeas court, this Court reviews this claim de novo. Cone
v. Bell, 556 U.S. 449 (2009).
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2009) (“A defendant is not entitled to an instruction informing the jury of the
consequence of a guilt or innocence finding in terms of punishment”), or even all of
their options. For example, the judge is allowed to instruct the jury to convict a
defendant if they find proof that the defendant is guilty beyond a reasonable doubt,
thereby impliedly foreclosing their ability to exercise jury nullification. See, e.g.,
United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983); United States v. Carr,
424 F.3d 213, 218-20 (2d Cir. 2005) (“[A] trial court is not required to inform a jury
of its power to nullify.”). Just like jury nullification, the power of an individual juror
to force a judge-imposed sentence is not “something that a judge should encourage or
permit if it is within his authority to prevent.” Carr, 424 F.3d at 220 (quoting United
States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997)).
The Petitioner also argues that the jury charge was deficient because the trial
court “gave a general charge that failed to inform the jury on the true nature of
mitigation evidence.” (Petitioner’s Br., at 272.) Specifically, the Petitioner argues
that “the jurors did not understand the meaning of the term ‘mitigating’” because the
trial court refused to charge on “specific examples of applicable mitigating
circumstances,” and that “the court instructed the jury that in its consideration of
mitigating evidence they were entitled to consider childhood, general upbringing,
emotional disturbance, and youth,” and by “listing...only a few potential areas of
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mitigation naturally limited the jury’s consideration in violation of the Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution.” (Petitioner’s Br., at
272-73.)
The trial court explained “mitigating” evidence to the jury to clear up
confusion:
Mitigating or extenuating circumstances are those which you, the jury,
find do not constitute a justification or excuse for the offense in question,
but which in fairness and mercy may be considered as extenuating or
reducing the degree of moral culpability or blame.
(Res. Ex. 38, at 2901.) This explanation was sufficient and did not have to be
buttressed with specific examples of mitigating circumstances. In addition, the
Petitioner argues that by giving only a few examples of mitigating circumstances, the
court misled the jury into thinking these were the only possible mitigating
circumstances.
“[T]he Eighth and Fourteenth Amendments require that the
sentence[r]...not be precluded from considering, as a mitigating factor, any aspect of
a defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438
U.S. 586, 604 (1978). Other examples of mitigating circumstances exist besides those
enumerated by the trial court.11 However, this Court cannot find that the Georgia
11
For example, the defendant’s adjustment to prison life may be properly
considered by the jury as mitigating evidence. Skipper v. South Carolina, 476 U.S.
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Supreme Court’s conclusion that the charge on mitigating circumstances was not
misleading to the jury to be contrary to, or an unreasonable application of, Supreme
Court precedent, or to be an unreasonable determination of fact. Gissendaner, 272 Ga.
at 715.
Also, similar to the Petitioner’s argument that the jurors should have been
instructed that they were not required to reach a unanimous decision on sentencing,
the Petitioner argues that the jurors should have been instructed to consider the
mitigating circumstances individually. (Petitioner’s Br., at 273.) The Petitioner cites
Mills v. Maryland, 486 U.S. 367 (1988), which held that the trial court committed
error when its instructions led the jurors to believe that they were required to agree
unanimously on the existence of a particular mitigating factor before that mitigating
factor could be considered in sentencing. Id. at 377-78. Mills does not hold that the
trial court is required to instruct jurors to consider mitigating circumstances
individually. Instructing jurors that they must agree on a particular mitigating factor
and refraining from stating that each juror must consider mitigating factors
individually is not synonymous; Mills is distinguishable from the present case. Also
distinguishable is that the Maryland statute in Mills required the imposition of the
death penalty if the jury agreed that there was a statutory aggravating factor and did
1, 7 (1986).
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not agree on a mitigating factor. Id. at 367. In the present case, the trial judge
instructed, “you may set the penalty to be imposed at life imprisonment. It is not
required and it is not necessary that you find any extenuating or mitigating fact or
circumstance in order for you to direct a verdict setting the penalty to be imposed at
life imprisonment.” (Res. Ex. 38, at 2903-04.) Therefore, even if a juror erroneously
believed that he could not establish a mitigating fact or circumstance if it was not
agreed to by all other jurors, he was aware that he could recommend a sentence of life
imprisonment regardless. On this issue the Georgia Supreme Court held: “It was not
necessary for the trial court to charge the jury that findings regarding mitigating
circumstances need not be unanimous or on how mitigating circumstances should be
weighed, because the trial court properly charged the jury that it was not necessary to
find any mitigating circumstances in order to return a sentence less than death.”
Gissendaner, 272 Ga. at 716. The Georgia Supreme Court did not rule contrary to, or
unreasonably apply, United States Supreme Court precedent.
G.
Georgia’s Death Penalty Scheme
The Petitioner argues that Georgia’s capital punishment regime is
unconstitutional because it “provides no uniform sentencing standards for determining
when such sentences are appropriate, and a scheme that affords district attorneys the
plenary power to seek sentences of death based on whim alone.” (Petitioner’s Br., at
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277.) Georgia’s death penalty scheme was expressly upheld by the United States
Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found
that Georgia’s capital punishment scheme12 controls the discretion exercised by the
jury “by clear and objective standards so as to produce non-discriminatory
application.” Id. at 198; see also Crowe v. Terry, 426 F. Supp. 2d 1310, 1355 (N.D.
Ga. 2005) (holding that Gregg “expressly upheld Georgia’s system of imposing the
death penalty”). The Petitioner’s argument that Bush v. Gore, 531 U.S. 98 (2000),
renders Georgia’s death penalty scheme unconstitutional is unpersuasive and has
already been rejected by this Court. Crowe, 426 F. Supp. 2d at 1354-55.
The Petitioner also argues that district attorneys use an arbitrary process for
deciding whether to seek the death penalty which violates the United States and
Georgia Constitutions. This claim also fails. The Eleventh Circuit recently held that
a petitioner cannot argue that the death penalty process violates the Equal Protection
Clause of the Fourteenth Amendment unless she can establish a prima facie case of
12
The Gregg Court highlights that the jury must find one of the statutory
aggravating circumstances to exist beyond a reasonable doubt, that the jury is
authorized to consider mitigating circumstances, and that the jury is not required to
find any mitigating circumstance before recommending a sentence other than death.
Gregg, 428 U.S. at 196-97. The Court also highlights that Georgia now bifurcates the
guilt and sentencing phase, and that there is an automatic appeal of all death sentences
to the Georgia Supreme Court, which is “an important additional safeguard against
arbitrariness and caprice.” Id. at 198.
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intentional discrimination against a protected class. Wellons v. Hall, 554 F.3d 923,
942 n.9 (11th Cir. 2009), vacated on other grounds, Wellons v. Hall, 130 S. Ct. 727
(2010). The Petitioner does not make a prima facie case of intentional discrimination
although she makes some unsubstantiated claims that the defendant’s low socioeconomic status and the race of the victim can sometimes play a role.13 Furthermore,
the United States Supreme Court has stated that “[i]mplementation of [criminal laws
against murder] requires discretionary judgments,” and that “[b]ecause discretion is
essential to the criminal justice process, we would demand exceptionally clear proof
before we would infer that the discretion has been abused.” McCleskey v. Kemp, 481
U.S. 279, 297 (1987). The Petitioner did not provide “exceptionally clear proof” that
state prosecutors abused their discretion in seeking the death penalty against the
Petitioner. Therefore, the Petitioner has failed to prove that the Georgia Supreme
Court’s decision was contrary to, or an unreasonable application of, Supreme Court
precedent.
13
The Petitioner states that “those convicted of killing white persons are far
more likely to receive the death penalty than those who kill non-white persons.”
(Petitioner’s Br., at 282-83.) However, she admits that the Court ruled adversely in
McCleskey v. Kemp, 481 U.S. 279 (1987), when it allowed Georgia to continue
executions even though a person was four times more likely to be sentenced to death
if the victim was white than if the victim was African-American. Moreover, persons
who murder white persons are of course not a protected class under the Equal
Protection Clause.
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H.
Victim Impact Evidence
The Petitioner argues that the trial court erred in admitting victim impact
evidence. However, the Supreme Court has held that the Eighth Amendment does not
create a per se bar to the admission of victim impact evidence and that there is no
reason to treat this evidence differently than other relevant evidence. Payne v.
Tennessee, 501 U.S. 808, 827 (1991). The victim impact evidence presented in this
case described the loss felt by those close to the victim, particularly his three children.
(Res. Ex. 37, at 2797-2806.) This evidence was not “so unduly prejudicial that it
render[ed] the trial fundamentally unfair[.]” Payne, 501 U.S. at 825. The Georgia
Supreme Court’s decision denying this claim was not contrary to, or an unreasonable
application of, Supreme Court precedent.
I.
Photographic and Video Evidence
The Petitioner claims that the trial court erred in admitting photographs and a
video of the crime scene and the victim. (Petitioner’s Br., at 292.) The Petitioner
argues that these photographs were prejudicial and irrelevant. “As a general rule, a
federal court in a habeas corpus case will not review the trial court’s actions in the
admission of evidence.” Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir.
1983) (citing Lisenba v. California, 314 U.S. 219, 228 (1941)). Yet, “the federal court
[in a habeas corpus proceeding] will make inquiry only to determine whether the error
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was of such magnitude as to deny fundamental fairness to the criminal trial....The
admission of prejudicial evidence justifies habeas corpus relief only if the evidence
is material in the sense of a crucial, critical, highly significant factor.” Osborne, 720
F.2d at 1238 (internal citations and quotations omitted). The Respondent argues: “The
photographs and the video were relevant and admissible to show the nature and
location of the victim’s wounds, the location and position of the body, the location of
the body in relation to the crime scene, and the appearance of the body at the time of
the autopsy. Furthermore, the autopsy photographs were properly admitted to assist
the medical examiner in describing the cause and manner of death.” (Respondent’s
Br., at 199.) The photographs also show that the Petitioner knowingly abandoned her
husband’s body in a wooded area where animals chewed off part of his face before the
body was found. The Court does not believe that the introduction of the photographic
and video evidence denied the Petitioner “a fundamentally fair trial” in violation of
the Fourteenth Amendment’s Due Process Clause. Osborne, 720 F.2d at 1238.
J.
Lethal Injection
The Petitioner argues that Georgia’s lethal injection procedure is cruel and
unusual punishment in violation of the Eighth Amendment. As a threshold matter, the
Respondent argues that this Court cannot review this claim on a habeas petition. The
Court is unconvinced. The Respondent cites Tompkins v. Secretary, Dep’t of Corr.,
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557 F.3d 1257 (11th Cir. 2009), for the proposition that “[a] § 1983 lawsuit, not a
habeas proceeding, is the proper way to challenge lethal injection procedures.” Id. at
1261. While this language appears to be dispositive of the issue on its face, after
closer examination the Court believes that a petitioner’s first habeas petition is an
appropriate vehicle through which to bring a challenge to a lethal injection procedure.
First, the facts of Tompkins are distinguishable from the case at bar. Tompkins did
not raise the lethal injection claim in his first habeas petition, which was filed in 1989,
because the state did not use that method of execution at that time. Id. However, the
state adopted lethal injection as an execution method in 2000, and the court notes that
“Tompkins could have filed a 42 U.S.C. § 1983 lawsuit challenging the method and
procedures at any time during the eight years since then.” Id. The Tompkins court
was responding to a petitioner who had brought a second or successive habeas
petition, and had delayed eight years since the change in the state’s lethal injection
procedures to do so.
On the other hand, Nelson v. Campbell, 541 U.S. 637 (2004), states that
“method-of-execution challenges [ ] fall at the margins of habeas,” which suggests
that such claims can be brought in habeas. Id. at 646. Furthermore, in a habeas appeal
decided by the Eleventh Circuit in the same year as Tompkins, the Eleventh Circuit
reached the merits of a claim challenging lethal injection procedures, lending further
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credence to this Court’s suspicion that the Tompkins language was inaccurately broad.
See Wellons, 554 F.3d at 942. Additionally, from a policy perspective, the Court
believes that judicial economy is best served by allowing a petitioner to bring a claim
challenging lethal injection procedures in her habeas petition rather than requiring her
to separately file a § 1983 action.
The Court considers the Petitioner’s claim de novo, as it was raised before the
state habeas court, which refused to decide it. Reaching the merits of the Petitioner’s
lethal injection claim, however, the Court is quickly struck by the weight of the case
law against the Petitioner’s argument. The Supreme Court found that a similar threedrug lethal injection protocol did not violate the Eighth Amendment. Wellons, 554
F.3d at 942 (citing Baze v. Rees, 553 U.S. 35 (2008)). Since Baze, Georgia has not
significantly altered its method of execution. Georgia now uses pentobarbital instead
of sodium penthotal as the first of its three drugs;14 the Eleventh Circuit has
consistently found that this switch did not offend the Eighth Amendment. See Powell
v. Thomas, 641 F.3d 1255 (11th Cir. 2011); DeYoung v. Owens, 2011 U.S. App.
LEXIS 15794 (11th Cir. July 20, 2011). Georgia’s lethal injection procedure does not
violate the United States Constitution.
14
The purpose of the first of the three drugs is to render the individual
unconscious. See Baze, 553 U.S. at 49.
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IV. Conclusion
For the reasons set forth above, the Court DENIES the Amended Petition for
Writ of Habeas Corpus [Doc. 16].
SO ORDERED, this 21 day of March, 2012.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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