Gissendaner v. Seabolt
Filing
71
ORDER denying 69 Motion to Alter Judgment. Signed by Judge Thomas W. Thrash, Jr on 6/6/12. (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 arising out of a state death penalty case. It is
before the Court on the Petitioner’s Motion to Alter or Amend the Clerk’s Judgment
[Doc. 69]. For the reasons set forth below, the Petitioner’s Motion is DENIED.
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,
she took a flashlight and went toward the body to inspect it. Owen
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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
denied the Petitioner’s Amended Petition on March 21, 2012 [Doc. 67]. On April 18,
2012, the Petitioner filed this Motion to Alter or Amend the Judgment [Doc. 69].
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
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in resolving a federal habeas corpus claim is to determine the “clearly established law
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.
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Williams, 529 U.S. at 406; Putman, 268 F.3d at 1241. Finally, the Supreme Court has
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.
Claim I (D): Ineffective Assistance of Counsel for Failure to Advocate
for and Negotiate a Plea Agreement for a Sentence Less Than Death
The Petitioner fails to set forth any new facts or law that warrant amendment
of the Court’s March 21 Order. The state habeas court found that the Petitioner’s trial
counsel were not constitutionally deficient in plea negotiations. (Res. Ex. 123, at 4546.) This Court cannot find that the state habeas court’s conclusion was contrary to,
or an unreasonable application of, Supreme Court precedent (both at the time the
habeas court made its ruling and now), or based on an unreasonable determination of
fact.
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The Petitioner focuses upon the state habeas court’s statement that “Petitioner
has not cited any controlling authority, and the Court is not aware of such authority,
in which counsel’s failure to negotiate a plea has been found to constitute ineffective
assistance of counsel.” (Res. Ex. 123, at 46.) Now, in light of the Supreme Court’s
recent rulings in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132
S. Ct. 1399 (2012), it is clear that defendants’ Sixth Amendment right to counsel
extends to plea negotiations. Cooper, 132 S. Ct. at 1384; Frye, 132 S. Ct. at 1407.
However, the state habeas court nevertheless analyzed the proficiency of the
Petitioner’s trial counsel in negotiating a plea agreement according to the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), as required by Cooper and
Frye. Cooper, 132 S. Ct. at 1384; Frye, 132 S. Ct. at 1409-11. The state habeas court
concluded that trial counsel’s performance was not deficient, and that the Petitioner
had not shown a reasonable probability of prejudice, i.e., that the plea process would
have been different with competent advice. Cooper, 132 S. Ct. at 1384. The state
habeas court reasoned:
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The evidence shows that to the contrary,1 trial counsel discussed the plea
offer from the prosecution with Petitioner. On behalf of Petitioner trial
counsel made a counteroffer, but the prosecution declined that offer still
asserting the original offer was on the table. There is no evidence that
Petitioner did not understand the plea offer and risk of going to trial.
Nor is there any evidence that trial counsel failed to assess the risk or
discuss the possibility of a death sentence with Petitioner. In fact, the
evidence shows that both lead counsel and co-counsel discussed the plea
offer and the possible sentences if she chose to go to trial. Trial counsel
has no duty to convince Petitioner to take a plea. Further, as to any claim
that trial counsel gave her incomplete information as to parole or her
options to plea or go to trial, there is no evidence to support such a claim.
Nor is there any evidence that Petitioner’s decision to go to trial or take
the plea offer would be different with any different recommendation
from counsel.
(Res. Ex. 123, at 45) (citations omitted).
Cooper and Frye require the state habeas court to analyze counsel’s
performance in the plea agreement setting as it would in the trial setting–according to
the dictates of Strickland. Without explicitly citing Strickland in this subsection of
its opinion (although the habeas court explicitly cited Strickland elsewhere in the
opinion), the state habeas court applied the Strickland standard. The Supreme Court’s
rulings in Cooper and Frye do not convince this Court to alter or amend its Order
1
The state habeas court stated that the evidence was contrary to the Petitioner’s
arguments. These arguments were: “Petitioner alleges that trial counsel unreasonably
failed to advocate for a negotiated plea agreement for a sentence less than death.
Petitioner argues that trial counsel failed to assess the risk of a death sentence, and
conveyed to Petitioner an unrealistic belief for an opportunity of acquittal or no death
sentence.” (Res. Ex. 123, at 45.)
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finding that the state habeas court’s decision on this issue was not contrary to, or an
unreasonable application of, Supreme Court precedent, and was not based on an
unreasonable determination of fact.
Cooper and Frye are easily distinguishable from this case. In neither case did
the Court actually consider whether counsel’s performance was deficient. In Cooper,
both parties agreed that counsel’s performance was deficient. Cooper, 132 S. Ct. at
1384. In Frye, counsel’s performance was deficient for failing to even communicate
the government’s formal plea deal offer.
Frye, 132 S. Ct. at 1408-09.
The
Respondent contests the Petitioner’s assertion that counsel’s performance was
deficient, and trial counsel did communicate the government’s plea offer to the
Petitioner, who rejected it.
B.
Claim XXXIII: Lethal Injection
The Respondent asks this Court to reconsider its ruling that the method-ofexecution challenge was cognizable on the Petitioner’s first petition for writ of habeas
corpus.
The Respondent has not shown any newly discovered evidence, an
intervening change in controlling law, or a clearly erroneous decision by this Court.
See Godby v. Electrolux Corp., No. 1:93-CV-0353-ODE, 1994 WL 470220, at *1
(N.D. Ga. May 25, 1994) (party may move for reconsideration only by showing: “an
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intervening change in controlling law, the availability of new evidence, [or] the need
to correct clear error or prevent manifest injustice.”).
Turning to the lethal injection challenge itself, the Court declines to hold an
evidentiary hearing to assess whether Georgia’s lethal injection protocol violates the
Eighth Amendment by creating “a substantial risk of serious harm.” Baze v. Rees,
553 U.S. 35, 50 (2008). The Petitioner has not presented “new facts,” “new
evidence,” or “new scientific and medical discoveries and research,” Arthur v.
Thomas, 674 F.3d 1257, 1260 (11th Cir. 2012), that the Eleventh Circuit has not
already considered and dismissed in DeYoung v. Owens, 646 F.3d 1319 (11th Cir.
2011). See also Arthur, 674 F.3d at 1260 (“[W]e reviewed a complaint presenting
identical allegations and relying on the same expert testimony and exhibits as were
rejected in Powell (Williams), and we affirmed the dismissal of the complaint because
its allegations and supporting evidence were indistinguishable from those in Powell
(Williams).”).
The Eleventh Circuit rejected DeYoung’s argument that Georgia’s lethal
injection protocol violated the Eighth Amendment. DeYoung, 646 F.3d at 1327. Like
DeYoung, Gissendaner, in her final merits brief, relied on an affidavit by Dr. David
B. Waisel, who, after reviewing eyewitness accounts of Roy Blankenship’s June 23,
2011 execution in Georgia, concluded that Blankenship experienced significant pain
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during the execution. DeYoung, 646 F.3d at 1326; [Doc. 58, at Ex. 1]. After
considering evidence that is materially indistinguishable to the evidence before this
Court today, the DeYoung Court concluded that “DeYoung has wholly failed to show
that pentobarbital, once fully administered and allowed to act, is ineffective as an
anesthetic. As the district court succinctly found, Georgia’s ‘use of pentobarbital does
not create a substantial risk of harm to inmates.’” DeYoung, 646 F.3d at 1327. The
Petitioner has not presented evidence that Georgia deviated from its lethal injection
protocol either during or since DeYoung’s execution. This Court concludes that, like
the Eleventh Circuit in DeYoung, Georgia’s use of pentobarbital does not create a
substantial risk of harm to inmates, and thus does not violate the Eighth Amendment.
IV. Conclusion
For the reasons set forth above, the Court DENIES the Petitioner’s Motion to
Alter or Amend the Clerk’s Judgment [Doc. 69].
SO ORDERED, this 6 day of June, 2012.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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