Kelly Renee Gissendaner v. Kathy Seaboldt, Warden, Metro State Prison , 735 F.3d 1311 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13569
________________________
D.C. Docket No. 1:09-cv-00069-TWT
KELLY RENEE GISSENDANER,
Petitioner-Appellant,
versus
KATHY SEABOLDT,
Warden, Metro State Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 19, 2013)
Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
CARNES, Chief Judge:
The tumultuous relationship between Kelly and Douglas Gissendaner was
marked by marriage, divorce, remarriage, separation, reconciliation, and a string of
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extramarital affairs on her part. After eight years of matrimonial and quasi-
matrimonial turmoil, Gissendaner coaxed her on-again, off-again paramour,
Gregory Owen, to kill her on-again, off-again husband. Although Owen suggested
the less violent alternative of divorce, Gissendaner insisted that her husband be
killed so that she could collect insurance money and because she believed that it
would ensure that she would be done with him once and for all. See Gissendaner
v. State, 532 S.E.2d 677, 682, 691 (Ga. 2000). Before that, Gissendaner had told
Owen’s sister that she planned to use her husband’s credit to buy a house and then
would “get rid of him.” Id. at 682.
On the night of February 7, 1997, Gissendaner drove Owen to her home,
gave him a nightstick and a large knife to use as murder weapons, and left him in
the house to lie in wait for her husband while she went to a nightclub with some
friends. Id. at 682, 691. When Douglas Gissendaner arrived home later that night,
Owen ambushed him from behind, held the large knife to his throat, and forced
him to drive his car to a remote wooded location that Gissendaner herself had
selected. See id. at 682. At that location, Owen ordered Douglas to walk into the
woods and kneel on the ground. Id. As Gissendaner had instructed him, Owen
removed Douglas’ watch and wedding ring to make the murder look like it was
part of a robbery. Id. Owen then struck him in the back of the head with the
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nightstick and, after he fell face first onto the ground, repeatedly stabbed him in the
back and neck with the knife.
Gissendaner returned home from the nightclub while her husband’s murder
was being carried out, paged Owen with a numeric signal indicating that she was
on her way to the crime scene, and then drove there. She met Owen beside the
woods and asked if her husband was dead. After being told that he was, she
walked into the woods with a flashlight to make sure. Meanwhile, Owen drove
Douglas’ car three-quarters of a mile down the road, where Gissendaner later
helped him set fire to it with kerosene that she had brought to the scene in her own
car.
Gissendaner reported her husband missing to the police the next day, but the
police were unable to locate his body until February 20, 1997, nearly two weeks
after the murder. By that time Douglas’ remains had been subjected to the
elements and ravaged by animals. While her husband was still missing,
Gissendaner tried to conceal her relationship with Owen from the police and
claimed not to have initiated any contact with him for some time, a claim refuted
by phone records showing that she had called and paged Owen a total of 65 times
in the days leading up to her husband’s murder. She was arrested on February 25,
2007, based on statements Owen made to the police confessing his involvement
and implicating her in the murder.
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Following her arrest, Gissendaner told her best friend, Pamela Kogut, about
her active role in the murder. She later told Kogut that she had been coerced into
taking part in the crime. While in jail awaiting trial, Gissendaner wrote a letter to a
fellow inmate, Laura McDuffie, which included a diagram of her house, outlined a
fictional scenario in which she and her husband had been victimized by Owen and
an unidentified third person, and offered to pay several thousand dollars to any
person willing to falsely claim to have been Owen’s accomplice in the imaginary
plot. In her letter, Gissendaner also sought to have three State witnesses, including
her former best friend Kogut, beaten and robbed.
Gissendaner and Owen were each indicted for malice murder and felony
murder, with the predicate felony being kidnaping resulting in bodily injury. After
filing notice of its intent to seek the death penalty, the prosecution offered
Gissendaner and her codefendant identical plea agreements for a life sentence with
a contract not to seek parole for 25 years. Absent any agreement restricting parole
eligibility, a straight life sentence would have made them eligible for parole after
14 years. Owen accepted the prosecution’s plea offer and agreed to testify against
Gissendaner if her case went to trial. After consulting with her two court-
appointed attorneys — lead counsel Edwin Wilson and co-counsel Steve Reilly —
Gissendaner rejected the prosecution’s plea offer and made a counteroffer for a
straight life sentence with no contract restricting parole eligibility. The State
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rejected that counteroffer, but left its initial plea offer open until shortly before
trial. After being informed of the State’s rejection of her counteroffer, Gissendaner
again refused to accept the State’s offer of life with no parole for 25 years and
insisted on her right to a jury trial. A jury convicted her of malice murder on
November 18, 1998.
At the penalty phase of the trial, the jury unanimously voted to impose the
death penalty after finding two statutory aggravating circumstances: (1) the
murder of Douglas Gissendaner was committed during the course of another
capital felony, namely kidnaping with bodily injury; and (2) Gissendaner caused or
directed another, namely Owen, to commit the murder. See Ga. Code Ann. § 17-
10-30(b)(2), (6) (1998). Gissendaner’s conviction and capital sentence were
affirmed on direct appeal by the Georgia Supreme Court. Gissendaner, 532 S.E.2d
at 682. In upholding her death sentence, the court emphasized “the deliberate,
even insistent, manner in which Gissendaner pursued her husband’s death, the fact
that the murder was the unprovoked and calculated killing of a close family
member, the fact that she arranged the murder to obtain money, and the fact that
she attempted to avoid responsibility for her conduct by suborning perjury and
orchestrating violence against witnesses.” Id. at 691.
Gissendaner filed a state habeas petition in December 2001, raising 36
claims for relief and a bevy of subclaims. Following a two-day evidentiary
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hearing, on February 16, 2007 the state trial court denied Gissendaner’s petition in
an order containing findings of fact and conclusions of law. After the Georgia
Supreme Court declined to issue a certificate of probable cause to allow
Gissendaner to appeal the denial of her state habeas petition, she filed the 28
U.S.C. § 2254 federal habeas petition in this case on January 9, 2009. The district
court denied that petition on March 21, 2012, and later denied Gissendaner’s
motion to alter or amend judgment.
The district court did, however, grant Gissendaner a certificate of
appealability on four of her claims for relief, three of which she has asserted to us:
(1) her trial attorneys were ineffective for failing to “advocate for and negotiate a
plea agreement for a sentence less than death”; (2) the State violated its obligations
under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), when it failed to
disclose the prosecution team’s handwritten notes from the final pretrial interview
of her codefendant and accomplice, Owen; and (3) trial counsel rendered
ineffective assistance during the penalty phase of her trial by failing to adequately
investigate and present mitigating evidence of her alleged history of sexual abuse,
physical abuse, and mental health issues.1
I. Standard of Review
1
The fourth claim on which the district court granted a certificate of appealability
asserted that the prosecutors violated Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972),
by knowingly offering false testimony at her trial. During the course of this appeal, Gissendaner
withdrew her Giglio claim.
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We review de novo the denial of a federal habeas petition under 28 U.S.C.
§ 2254. Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005).
The Antiterrorism and Effective Death Penalty Act of 1996 imposes on federal
courts a highly deferential standard for evaluating state court rulings on the merits
of a constitutional claim, which precludes the grant of federal habeas relief unless
the state court’s decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court,” or (2) “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); see also
Felkner v. Jackson, — U.S. —, 131 S. Ct. 1305, 1307 (2011).
A state court decision is “contrary to” clearly established federal law if it
applies a rule that contradicts the governing law set forth by the United States
Supreme Court, or arrives at a result that differs from Supreme Court precedent
when faced with materially indistinguishable facts. Bell v. Cone, 535 U.S. 685,
694, 122 S. Ct. 1843, 1850 (2002). An “unreasonable application” of clearly
established federal law, by contrast, occurs when “the state court correctly
identifies the governing legal principle” from the relevant Supreme Court decisions
“but unreasonably applies it to the facts of the particular case.” Id. A state court’s
application of Supreme Court precedent or its determination of the facts is
“unreasonable only if no ‘fairminded jurist’ could agree with the state court’s
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determination or conclusion.” Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d
1230, 1257 (11th Cir. 2012) (quoting Harrington v. Richter, — U.S. —, 131 S. Ct.
770, 786 (2011)).
II. The Ineffective Assistance Claim Involving Plea Negotiations
Gissendaner contends that her trial attorneys rendered ineffective assistance
of counsel in failing to “advocate for and negotiate a plea agreement for a sentence
less than death,” arguing that counsel provided her with an unrealistic assessment
of her chances for an acquittal, unreasonably advised her that a death sentence was
unlikely given that she is a woman, failed to inform her that there was no “real
difference” between the prosecution’s plea offer and her counteroffer for a straight
life sentence, and did not urge her to accept the prosecution’s offer. She asserts
that, but for these failures, she would have accepted the prosecution’s plea offer of
a life sentence with a contract not to seek parole for 25 years, as evidenced by her
counteroffer to plead guilty in exchange for a straight life sentence.
The United States Supreme Court, well before its recent companion
decisions in Missouri v. Frye, — U.S. —, 132 S. Ct. 1399 (2012), and Lafler v.
Cooper, — U.S. —, 132 S. Ct. 1376 (2012), recognized that the familiar two-part
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
applies to “ineffective-assistance claims arising out of the plea process.” Hill v.
Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 370 (1985); see also Frye, 132 S. Ct. at
8
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1405 (“Hill established that claims of ineffective assistance of counsel in the plea
bargain context are governed by the two-part test set forth in Strickland.”). Under
that two-part test, a petitioner asserting a claim of ineffective assistance of counsel
must demonstrate both deficient performance and prejudice — that counsel’s
performance “fell below an objective standard of reasonableness” and that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 687–88, 694,
104 S. Ct. at 2064, 2068. Where, as here, a petitioner rejects a plea offer, she must
establish that there is a reasonable probability that she would have accepted that
offer but for counsel’s deficient performance, and that the plea would have resulted
in a lesser charge or a lower sentence. See Frye, 132 S. Ct. at 1409; Coulter v.
Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (applying Hill to a rejected plea offer
and concluding that, under those circumstances, prejudice requires a showing that
“there is a reasonable probability that, but for counsel’s errors, [the petitioner]
would have pleaded guilty and would not have insisted on going to trial”)
(quotation marks, ellipsis, and brackets omitted).
As we have already mentioned, the prosecution offered to agree to a life
sentence for Gissendaner if she would contractually bind herself not to seek parole
for 25 years. Trial counsel discussed the plea offer with Gissendaner. They told
her, among other things, that it was the same offer extended to her codefendant,
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Owen. Counsel advised Gissendaner that they believed that she had a realistic
chance of an acquittal and that, even if convicted at trial, a death sentence was
unlikely because she did not physically carry out her husband’s murder, was a
woman, and was a mother of three young children. At the state habeas hearing,
attorney Wilson testified to his belief that jurors “are less likely to sentence a
woman to death than a man.” Co-counsel Reilly echoed that sentiment, explaining
that the unlikelihood that Gissendaner would be sentenced to death “was a fairly
common assessment among other colleagues in the local bar.” He testified that
there was no other woman on death row in Georgia at the time. Despite their
views on Gissendaner’s chances for acquittal or a life sentence, neither attorney
urged Gissendaner to reject or accept the prosecution’s plea offer. They left the
decision to her.
Gissendaner, as her attorneys testified at the state habeas proceeding, was
unwilling to accept anything more than a straight life sentence, meaning one with
normal parole eligibility, because she felt that she was less culpable than Owen and
for that reason deserved a lesser sentence. At no point did Gissendaner indicate to
either counsel, or to anyone insofar as the record shows, that she would accept the
State’s offer of a life sentence with the contractual restriction ruling out parole for
25 years. In light of Gissendaner’s adamant position, her counsel made a
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counteroffer for a straight life sentence with no contract restricting parole
eligibility, which the State rejected.
In rejecting Gissendaner’s claim on the merits, the state habeas court
concluded that counsel’s performance during the plea-bargaining process was
neither deficient nor prejudicial. The court found “no evidence that [Gissendaner]
did not understand the plea offer and [the] risk of going to trial,” including the
possibility of a death sentence, and it found that trial counsel’s failure to
successfully negotiate a plea for a sentence less than death did not constitute
deficient performance. The court also found that Gissendaner was not prejudiced
by any alleged deficient performance on the part of counsel, emphasizing that she
had rejected the prosecution’s plea offer “because she believed herself to be less
culpable than Owen” and that there was no “evidence that [her] decision to go to
trial or take the plea offer would be different with any different recommendation
from counsel.”
Insofar as Gissendaner’s claim is that counsel should have somehow
persuaded the prosecutors to offer her a better plea bargain than they did,
specifically one that would have made her eligible for parole in the usual time,
there is nothing in the record to support any suggestion that counsel could have
done more than they did. Counsel did make a counteroffer to that effect but the
prosecutors rejected it, and we do not know of anything they could have done that
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would have persuaded the prosecutors to give Gissendaner a better deal than her
cooperating codefendant Owen got. For all that appears, the Great Negotiator
Henry Clay himself could not have gotten what Gissendaner wanted. The state
court’s decision regarding that aspect of the claim clearly is not unreasonable.
As for the aspect of the ineffective assistance claim concerning counsel’s
advice to Gissendaner about the deal the prosecutors offered her, we need not
address the question of deficient performance because the state habeas court’s
finding that Gissendaner had failed to demonstrate the requisite prejudice did not
involve an unreasonable application of Strickland or an unreasonable
determination of fact. 2 See 28 U.S.C. § 2254(d); Windom v. Sec’y, Dep’t of Corr.,
578 F.3d 1227, 1248 (11th Cir. 2009) (“Because the failure to demonstrate either
deficient performance or prejudice is dispositive . . ., there is no reason for a court
deciding an ineffective assistance claim to address both components of the inquiry
if the defendant makes an insufficient showing of one.”) (quotation marks and
ellipsis omitted). The undisputed evidence (Gissendaner never testified) is that
2
We do not mean to imply that there is any reason to believe that the attorneys’ advice to
Gissendaner was outside the wide range of reasonable professional assistance. Take, for
example, their belief that, because she is a woman, Gissendaner was unlikely to receive the death
penalty. It is a fact that while women account for 10% of annual murder arrests, they account for
just 2.1% of the 8,375 capital sentences (i.e., 178) imposed in the United States from 1973
through 2012. Victor L. Streib, Death Penalty for Female Offenders, January 1, 1973, through
December 31, 2012, at 3 (2013), http://www.deathpenaltyinfo.org/documents/FemDeathDec
2012.pdf (last visited Oct. 18, 2013). Only 6 women, including Gissendaner, have been
sentenced to death in Georgia during the 39-year period between 1973 and 2012. Id. at 5, 10–16.
Before Gissendaner, the last death sentence imposed on a female offender in Georgia occurred
16 years earlier in 1982, and Georgia has not executed a woman in nearly seventy years, not
since March of 1945. Id. at 7, 11.
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Gissendaner was unwilling to accept anything more than a straight life sentence no
matter what because believing herself to be less culpable than Owen, she refused to
accept the same sentence he had received. In light of the evidence, the state court
reasonably concluded that there was no reasonable probability that, but for
counsel’s allegedly deficient advice, Gissendaner would have accepted the
prosecution’s plea offer of a life sentence with a contract not to seek parole for 25
years.
Gissendaner points to her willingness to plead guilty to a straight life
sentence, embodied in her counteroffer, as evidence that she would have accepted
the prosecution’s offer had she received different advice from counsel. That is a
non sequitur. A willingness to accept something more favorable than what is
offered does not indicate a willingness to accept what is offered. The prosecution
offered a life sentence with a 25-year restriction on parole eligibility and refused to
accept Gissendaner’s counteroffer of a straight life sentence. The material
difference between the offer and the counteroffer, a difference that mattered to
both sides, is the difference between no parole eligibility for 25 years instead of
for14 years. Because the state court reasonably found that Gissendaner had failed
to carry her burden of demonstrating that she was prejudiced by counsel’s advice
during the plea process, the district court correctly denied federal habeas relief on
this ineffective assistance of counsel claim.
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III. The Brady Claim
In Brady v. Maryland, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused . . . violates due process where the
evidence is material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. at
1196–97. A Brady violation consists of three basic components: “[1] [t]he
evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; [2] that evidence must have been suppressed by the
State, either willfully or inadvertently; and [3] prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999). The
prejudice or materiality requirement is satisfied “if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 280, 119 S.Ct. at 1949 (quotation marks
omitted).
Gissendaner contends that the State violated its Brady obligations by failing
to disclose the prosecution team’s handwritten notes from the last of several
pretrial interviews with Owen, her codefendant and the chief witness against her.
Owen was interviewed by police investigators and State prosecutors on five
occasions before the start of Gissendaner’s trial. During the two earliest
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interviews, which bookended the discovery of the victim’s body, he denied any
involvement in the death and disappearance of Douglas Gissendaner. But in his
third interview, conducted on February 24, 1997, Owen confessed to the murder
and implicated Gissendaner as his accomplice, telling investigators that she had
planned the murder, had provided him with directions to the crime scene, and had
brought to the scene the accelerant he used to burn her husband’s car. During that
interview, Owen also stated that Gissendaner did not arrive at the scene until after
he had murdered her husband and had driven around for a while awaiting her page.
Owen made similar statements during his plea hearing, held on December 22,
1997, and in his fourth pretrial interview, held on January 7, 1998, though in that
interview he asserted that Gissendaner had taken him to the crime scene before the
night of her husband’s murder.
On October 21, 1998, twelve days before the start of Gissendaner’s trial,
Owen was interviewed for the last time by a trio of State prosecutors: Chief
Assistant District Attorney Phil Wiley, Assistant District Attorney Nancy Dupree,
and Assistant District Attorney George Hutchinson. After the interview, the
prosecutors prepared and disclosed to the defense a typewritten summary of
Owen’s statements, which purported to reveal the information that Owen had given
during that last interview that differed from what he had said in any of the earlier
interviews. The summary reported that Owen, for the first time, claimed that
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Gissendaner had arrived at the crime scene while her husband’s murder was taking
place and later walked into the woods to confirm that her husband was dead. The
summary also noted that Owen had again stated that Gissendaner had brought to
the murder site the accelerant used to burn the victim’s car.
The State did not, however, disclose the handwritten notes taken by each
member of the prosecution team during the October 21, 1998 interview, which
collectively included several details that were not included in the typewritten
summary provided to the defense. ADA Hutchinson’s notes indicated that,
approximately halfway through the interview, Owen stated that Gissendaner had
taken him to the crime scene sometime before the murder and that, on the night of
the murder, she arrived at the scene while he was in the woods with her husband.
Owen then appeared to give seemingly inconsistent accounts about Gissendaner’s
actions following her arrival, first stating that she “never came up to where [the]
killing was until after [the] victim [was] dead” and then stating that she “never
came up to see the body.” Several pages later, ADA Hutchinson’s notes include
the notation, “why not tell defendant there?,” which indicated that one of the State
prosecutors had asked Owen a question to that effect. Hutchinson’s notes show
that Owen replied that it “didn’t matter if she [was] there” because he “still killed”
the victim and he then reiterated that Gissendaner had ventured into the woods to
inspect her husband’s body.
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ADA Dupree’s notes contained an additional detail about that last pretrial
interview that was not reflected in the notes of her colleagues or the typewritten
summary disclosed to the defense. Her notes indicate that Owen said that he had
initially supplied Gissendaner with the accelerant that she brought to the murder
scene. 3
Owen’s trial testimony combined various features of his earlier statements to
the police and State prosecutors, which defense counsel deftly exploited in their
attempt to “poke holes” in the prosecution’s case by painting Owen as a confessed
murderer and an unbelievable witness who had given a number of inconsistent
statements throughout the proceedings. At trial Owen testified that Gissendaner
furnished him with the murder weapons, selected the crime scene, arrived at the
scene while her husband’s murder was taking place, went into the woods with a
flashlight to confirm that her husband was dead, and then helped Owen set fire to
her husband’s car with “kerosene that [she] had in her car.” Owen did not offer
any testimony about who had originally obtained the kerosene and, inconsistently
with his final pretrial statement, he testified that Gissendaner had merely given him
directions to the murder scene, which he claimed not to have visited beforehand.
3
ADA Wiley’s notes confirmed Hutchinson’s account of the interview, including
Owen’s assertion that Gissendaner had arrived at the crime scene while her husband’s murder
was taking place and later went into the woods with a flashlight to inspect his body. Wiley’s
notes do not contain any other information relevant to Gissendaner’s Brady claim.
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On cross-examination, defense counsel grilled Owen about his prior
inconsistent statements, eliciting admissions that he: (1) initially lied to
investigators about his whereabouts on the night of the murder; (2) repeatedly
stated, including while he was under oath at his plea hearing, that Gissendaner did
not come out to the crime scene until after he had killed her husband; and (3) again
lied to the police when he informed them that he drove around after the murder
waiting for Gissendaner’s page. Owen candidly conceded to defense counsel that
he had “told a lot of lies” during the course of the investigation into Douglas
Gissendaner’s death.
The state habeas court concluded that the prosecutors’ interview notes
contained evidence that, while not exculpatory in terms of Gissendaner’s guilt or
the aggravating sentencing factors found by the jury, was nevertheless favorable to
the defense because it could have been used to further impeach Owen’s trial
testimony. The court found, however, that the undisclosed statements contained in
the notes were not material because there was no reasonable likelihood that, when
considered collectively, they would have altered the outcome of either the guilt or
the penalty phases of the trial. The court explained that defense counsel brought to
the jury’s attention numerous inconsistencies in Owen’s statements, making further
impeachment less vital, and that the prosecution had presented a wealth of
incriminating evidence other than Owen’s trial testimony, including phone records
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showing that Gissendaner had contacted Owen 65 times in the days leading up to
the murder, her confession to Pamela Kogut, and her letter from jail seeking to
suborn perjury and intimidate State witnesses. The court rejected Gissendaner’s
contention that the notation in ADA Hutchinson’s notes, “why not tell defendant
there?,” showed that the State prosecutors had prompted Owen to further inculpate
her by stating that she went to view the body of her murdered husband. In the
court’s assessment, Gissendaner’s interpretation of the notation was “not
reasonable” and she had “failed to show a context in which the phrase would
influence Owen to change his testimony.”
The state habeas court’s decision regarding this claim was not inconsistent
with clearly established federal law or based on an unreasonable determination of
fact. The court reasonably concluded that there was no Brady violation with
respect to the alleged evidence of prosecutorial prompting. Gissendaner’s
contention that ADA Hutchinson’s notation, “why not tell defendant there?,”
proves prompting teeters atop the precarious premise that Owen had not stated that
Gissendaner had visited the actual murder site until after a prosecutor suggested it
with that question. ADA Hutchinson’s interview notes indicate, however, that well
before Owen was asked “why not tell defendant there?,” Owen had already said
that Gissendaner walked up to the murder site “after [the] victim [was] dead.” The
most reasonable interpretation of ADA Hutchinson’s notes is that after Owen
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volunteered that Gissendaner was present at the crime scene during her husband’s
murder, one of the State prosecutors asked him why he had not said that during any
of his earlier interviews. Instead of prompting Owen to state that fact, the
prosecutors were challenging his statement of the fact because he had not said it
before. At the state post-conviction hearing, all three members of the State’s
prosecution team testified that they never suggested to Owen that he say
Gissendaner had walked into the woods to inspect her husband’s body or otherwise
exaggerate her culpability. The state habeas court reasonably found that
Gissendaner’s interpretation of ADA Hutchinson’s notation is “not reasonable.”
As a result, the note was neither favorable to the defense nor material under Brady.
It was also reasonable for the state court to conclude that the remaining
information contained in the prosecutors’ notes that was omitted from the
typewritten summary disclosed to the defense was not material; there was no
reasonable likelihood that it would have altered the outcome of either the guilt or
sentence stages of the trial. See Strickler, 527 U.S. at 280, 119 S. Ct. at 1949. The
questions of whether Gissendaner had taken Owen to the crime scene before the
murder, instead of just giving him directions there, and whether Owen had initially
supplied Gissendaner with the accelerant that she later brought to the scene, are not
relevant to her guilt. Nor are those questions relevant to her sentence, which was
based on the aggravating circumstances that the murder occurred during the
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commission of another felony and was carried out by another at Gissendaner’s
direction. Not only that, but Owen was vigorously cross-examined at trial about
his prior inconsistent statements, including his repeated assertions that Gissendaner
did not arrive at the crime scene until after he had murdered her husband, and he
frankly conceded that he had “told a lot of lies” during the murder investigation.
The state habeas court reasonably found that further impeachment of Owen based
on the undisclosed statements contained in the prosecution team’s notes would not
have created a reasonable probability of a different result in either phase of the
trial. The district court correctly denied the Brady claim.
IV. The Penalty Phase Ineffective Assistance Claim
Gissendaner claims that her trial attorneys failed to conduct an adequate
penalty phase investigation into her alleged history of sexual abuse at the hands of
six different assailants, into the physical abuse that she endured as a child at the
hands of her stepfather, and into the psychological effects of that abuse, including
post-traumatic stress disorder and frontal lobe brain damage. She argues that
counsel’s mitigation investigation was unreasonably “limited” and “curtailed”
because they purportedly (1) failed to follow up on her allegations of sexual abuse
by obtaining documentary evidence and interviewing witnesses who could provide
readily available corroboration, and (2) did not commission a comprehensive
mental health evaluation that extended beyond issues of insanity and mental
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retardation. Gissendaner urges us to conclude that counsel’s decision not to
present any evidence of abuse at sentencing was deficient because it was not
informed by a reasonable investigation.
The scope of counsel’s investigation, like all other actions undertaken by
counsel, need only be objectively reasonable under the circumstances to satisfy
constitutional demands. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (“In
any ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.”). Counsel has a “duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. As the Supreme Court emphasized in Strickland, “strategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable,” while “strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690–91,
104 S.Ct. at 2066. In evaluating the reasonableness of counsel’s investigation,
courts must consider both “the quantum of evidence already known to counsel”
and whether that evidence “would lead a reasonable attorney to investigate
further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S. Ct. 2527, 2538 (2003).
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But always, “[j]udicial scrutiny of counsel’s performance must be highly
deferential,” indulging the “strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,
104 S.Ct. at 2065. Because Strickland calls for an objective inquiry into the
reasonableness of counsel’s performance — an inquiry which asks only whether
“some reasonable lawyer” could have pursued the challenged course of conduct —
a petitioner bears the heavy burden of showing that “no competent counsel would
have taken the action that his counsel did take.” Chandler v. United States, 218
F.3d 1305, 1315 & n.16 (11th Cir. 2000) (en banc); see also Harrington, 131 S. Ct.
at 790 (“Strickland . . . calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.”).
Where the highly deferential standards mandated by Strickland and AEDPA
both apply, they combine to produce a doubly deferential form of review that asks
only “whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington, 131 S. Ct. at 788. This “[d]ouble deference is
doubly difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court
is found to merit relief in a federal habeas proceeding.” Evans v. Sec’y, Fla. Dep’t
of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012).
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This is not one of those rare cases. Far from it. To explain how far, we will
recount the scope of counsel’s penalty phase investigation and the evidence
submitted during the state habeas proceedings before analyzing the state court’s
decision under the deferential standards mandated by AEDPA.
A.
Although attorneys Wilson and Reilly collaborated on various aspects of
Gissendaner’s case, Reilly was primarily responsible for interviewing potential
mitigation witnesses for the penalty phase of the trial. In fulfilling that
responsibility, Reilly spent a significant amount of time with Gissendaner and a
number of her relatives, including her mother Maxine Wade. He did so to glean
information about her background, family life, and marriage to the victim. Reilly
met with Gissendaner on a regular basis and, with her input, compiled a timeline of
significant events in her life; made lists of her former employers, residences,
schools, and special training; and even constructed a family tree that included 23
relatives, along with their addresses and telephone numbers, who could provide
information about Gissendaner. Counsel also obtained Gissendaner’s military,
mental health, and medical records, and he had the benefit of a detailed 40-page
journal that Gissendaner had prepared in custody while awaiting trial.
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Gissendaner, either in person or through her journal, informed counsel that
she had been raped by her neighbor’s father when she was nine years old; had been
molested by her stepfather, William “Billy” Wade, when she was ten or eleven;
and that her first child, with whom she became pregnant while a senior in high
school, was the product of date rape. She also claimed that she was raped by
Gregory Owen in May 1996 and had told several people about it, including her
cousin Tangee Brookshire, her coworker Laurie Horsley, and her friend Cathy
Nesbitt.
Wilson and Reilly spoke to Gissendaner’s mother, Maxine Wade, on a
number of occasions, questioning her about the allegations of sexual abuse and
supplying her with questionnaire titled “Suggested Areas to Explore in Defendant
History,” which covered topics concerning Gissendaner’s childhood, family
history, employment history, mental health history, and military history. The
answers Wade gave were far from consistent, and she was unable to provide any
definitive answers to questions about the alleged incidents of sexual abuse. On the
questionnaire counsel gave her, Wade reported that she knew of nothing to indicate
that Gissendaner had suffered “sexual or physical abuse by parents, siblings,
relatives or others,” and she said that no member of her family had a history of
mental illness.
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During her many conversations with counsel, however, Wade intimated that
Gissendaner may have been molested by her stepfather, Billy Wade, when she was
around twelve years old. She said that when Gissendaner was that age he
occasionally slept in a spare bed in her bedroom, saying that the mattress there was
more comfortable than the one in the master bedroom. Although she confirmed
that Gissendaner had become pregnant with her first child when she was a senior in
high school, Wade in no way suggested that the pregnancy was the result of date
rape. While Wade informed counsel that Billy Wade had physically abused her in
front of Gissendaner and her brother, Shane Brookshire, she did not indicate that
Billy Wade had ever been physically abusive to either of the two children.
In addition to Gissendaner’s mother, Reilly interviewed 19 of the remaining
22 family members Gissendaner had listed on her family tree, seven of whom lived
out of state in Alabama, and counsel also interviewed one close family friend. The
family members interviewed by counsel included Gissendaner’s biological father
(Larry Brookshire), brother (Shane Brookshire), stepmother (Edna Brookshire),
five uncles (including Delane Conaway), three aunts (including Darlene Bearden),
four cousins (including Tangee Brookshire), and four grandparents. Counsel also
hired an experienced private investigator, Dennis Miller, who interviewed an
additional twelve witnesses for both phases of the trial, including Laurie Horsley,
Cathy Nesbitt, and Jodi Stephens, a close personal friend who had served in the
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military with Gissendaner. Reilly, according to his testimony at the state post-
conviction hearing, attempted to contact “[a]s many people as [he] was aware of”
and “for whom [he] could get a telephone number and/or address.”
None of the many potential penalty phase witnesses Reilly interviewed was
able to corroborate Gissendaner’s allegations of sexual abuse. Nor was there any
documentary evidence, such as medical records, mental health records, or police
reports, to corroborate those allegations. Tangee Brookshire and Laurie Horsley
did confirm that Gissendaner had told them that Owen either did rape her or had
tried to do so, but Brookshire did not believe Gissendaner’s allegations. And
Horsley also recalled Gissendaner “agonizing over choosing who she wanted to
spend her life with, Doug or Greg Owen[].” Cathy Nesbitt, the third person who
purportedly knew about the alleged rape, refused to talk about it on the ground that
she had “nothing good to say about [Gissendaner].”
Defense counsel went beyond interviewing Gissendaner’s relatives, friends,
and former coworkers. Although Gissendaner had no significant history of mental
illness, counsel retained a mental health expert, Dr. Richard Stark, to conduct a
psychological evaluation. Wilson specifically asked Dr. Stark to assess whether
there were any potential defenses based on “retardation or insanity” and provided
him with a “general context of the situation.” While neither Wilson nor Reilly
could later recall whether Dr. Stark was asked to evaluate Gissendaner for
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mitigation purposes, Reilly did testify that he believed that Dr. Stark’s
psychological assessment “covered issues which potentially might have been
utilized for mitigation purposes.” Dr. Stark ultimately found no signs of mental
retardation or anything else that might establish a “mental defense,” though he did
postulate that Gissendaner might be gay or bisexual and that her rejection of her
sexual orientation was the root cause of her numerous acts of infidelity.
In light of Dr. Stark’s psychological assessment, counsel decided not to
spend any more of their investigative and preparation resources on Gissendaner’s
mental health. They discussed whether they should present the evidence of sexual
abuse they had turned up but decided not to do so given the lack of any concrete
corroboration. At the state collateral hearing, Reilly explained that he and Wilson
felt that the allegations of sexual abuse were “not substantiated with enough detail
to avoid the State turning it against us” by suggesting that Gissendaner was
“creating excuses to deflect blame.” He elaborated: “[A]nything we were going to
put 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 deflect blame.” Reilly was referring to the prosecution’s
depiction of Gissendaner at trial as the mastermind behind her husband’s murder
and a manipulative liar who would “do anything to avoid responsibility for her
own actions,” including attempting to suborn perjury and intimidate State
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witnesses. Counsel concluded that her story about having been sexually abused
could fit within the State’s narrative.
Instead of presenting the unsubstantiated allegations of sexual abuse at
sentencing, counsel opted to call eight character witnesses, including Maxine
Wade, Shane Brookshire, Darlene Bearden, and Jodi Stephens, to attest to
Gissendaner’s good character and to plead for mercy. Those witnesses informed
the jury that Gissendaner was a kind, compassionate, and loving person, a caring
mother to her three young children, and a military veteran who had no significant
criminal history before the murder of her husband. They also pleaded with the jury
to spare Gissendaner’s life, emphasizing that her death would have a devastating
impact on her children. The prosecution, as defense counsel rightly suspected,
again sought to portray Gissendaner as a liar who masterminded the murder of her
husband and consistently attempted “to shield herself from any responsibility.”
B.
During the state habeas proceedings, Gissendaner submitted affidavits from
25 relatives, friends, and former coworkers, as well as reports from three mental
health experts retained by collateral counsel, in support of her claim that penalty
phase counsel had failed to adequately investigate and present evidence of her
alleged history of abuse and mental health issues. The majority of Gissendaner’s
supporting affidavits, 16 of the 25 submitted, broadly described the drunken and
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dysfunctional deeds of the extended Conaway clan — Gissendaner’s family on her
mother’s side — but offered little information about her upbringing or the abuse
that she allegedly suffered. The remaining nine affidavits, which did describe
alleged incidents of physical and sexual abuse, came from (among others)
Gissendaner’s mother, her aunt Darlene Bearden, her cousin Shelia Muller, and her
friends Laurie Horsley and Jodi Stephens. Collectively, those nine affiants
indicated that they had heard, either directly from Gissendaner or indirectly
through someone else, that Gissendaner had been sexually molested as a child by
her stepfather, raped as an adult by Owen, and that her first child was conceived as
a result of date rape.
Those nine affidavits also included allegations of physical and sexual abuse
that had not been mentioned earlier by either Gissendaner, or her mother, or any of
the other multitude of witnesses interviewed by counsel before trial. Maxine Wade
asserted that when Gissendaner was only three or four years old, she noticed that
her daughter’s genital area was “red and raw looking” and that Gissendaner, when
asked about it, said that her stepfather’s nine-year-old nephew “had done it with
his finger.” She also recounted that Gissendaner, as an adult, once told her that she
had been sexually abused by her uncle Delane Conaway, though only after Wade
had informed Gissendaner that her cousin Shelia Muller had apparently been
molested as a child by Delane. Muller and her own mother, Darlene Bearden,
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likewise asserted that Muller had been sexually molested by her uncle Delane in
1968 or 1969, when Muller was six or seven years old and Delane was a senior in
high school, and that they were told by Maxine Wade that Gissendaner claimed to
have suffered similar abuse. Jodi Stephens stated that Gissendaner told her that her
stepfather had abused her sexually and physically.
Although trial counsel had interviewed at least five of the nine affiants at the
time of trial (Wade, Bearden, Brookshire, Horsley, and Stephens), three of whom
had also testified at sentencing (Wade, Bearden, and Stephens), none of those
witnesses could adequately explain why they did not tell counsel what they knew
or had heard about the alleged abuse. For example, despite abundant evidence to
the contrary, Wade insisted that trial counsel never questioned her about any sexual
abuse that Gissendaner may have suffered. Bearden, while acknowledging that she
met with trial counsel on several occasions, simply asserted that they did not
discuss Gissendaner’s allegations of sexual abuse; she did not explain why she did
not tell counsel about all relevant information that she had.
In further support of her ineffective assistance claim, Gissendaner submitted
reports from three mental health professionals retained by collateral counsel: Dr.
Mindy Rosenberg, a psychologist specializing in childhood trauma;
neuropsychologist Dr. Myla Young; and psychiatrist Dr. William Bernet. Dr.
Rosenberg prepared a social history based on interviews with Gissendaner, several
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of her relatives, and the affidavits compiled by collateral counsel. According to
that social history, Gissendaner had been physically abused as a child by her
stepfather, mother, and biological father, as well as sexually abused throughout her
childhood and adult life by six different assailants — her stepfather’s nephew, her
stepfather, her “neighbor friend’s stepfather,” her uncle Delane, the father of her
first child, and Owen. Dr. Rosenberg concluded that Gissendaner had been the
“victim of severe and prolonged sexual and physical abuse,” which exerted “a
profound impact on her psychological functioning” and led to “significant
impairment in her interpersonal relationships.”
Dr. Young evaluated Gissendaner over the course of two days in March
2004 and administered a battery of neuropsychological tests to assess her
intellectual and emotional functioning, which included a Rorschach inkblot test
and a Rey Complex Figure test. Based on her testing and unquestioning reliance
on Dr. Rosenberg’s social history, Dr. Young concluded that Gissendaner had
experienced “overwhelming emotional stress and psychological distress” and
suffered from frontal lobe brain damage “severe enough that it would compromise
[her] daily functioning,” and both of those maladies made it “highly unlikely that
[Gissendaner had] the cognitive ability to be the sole master-mind, initiator,
planner, and provider of means for murder with the intent of financial gain, as she
was portrayed at trial.”
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Dr. Young’s diagnosis of brain damage was premised on the astonishing
results of the Rey Complex Figure test, which apparently placed Gissendaner’s
ability to organize complex information “in the less than 1st percentile.” Dr.
Young believed that result despite the fact that Gissendaner had been consistently
employed since the age of 16, had successfully graduated from high school, and
had served in the military for 18 months. Dr. Young conceded that she had relied
on the social history that Dr. Rosenberg had composed without making any attempt
to verify its contents, that the Rorschach test she depended on had been criticized
as unreliable and unscientific by the psychiatric community, and that her
neuropsychological tests did not incorporate any specific subtests to determine
whether Gissendaner was malingering during the course of her evaluation. With a
naiveté that would perplex Pollyanna, Dr. Young insisted that in the 25 capital
cases in which she had testified for the defense, no defendant had ever malingered,
not even once.
Dr. Bernet met with Gissendaner on a single occasion for a total of four-and-
a-half hours and reviewed her medical records, the affidavits collected by collateral
counsel, and the reports authored by Drs. Young and Rosenberg. Based largely on
Gissendaner’s self-reporting, the social history composed by Dr. Rosenberg, and
Dr. Young’s neuropsychological findings, Dr. Bernet diagnosed Gissendaner with
PTSD, cognitive disorder, chronic depression, and submissive personality traits.
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He attributed the cause of those diagnosed conditions to Gissendaner’s “long
history of physical and sexual abuse,” and concluded that her mental disorders
would have impaired her “ability to premeditate, deliberate, and carry out the plan
that she is alleged to have masterminded.”
Like Dr. Young, Dr. Bernet admitted that he took Dr. Rosenberg’s social
history at “face value” in drawing his conclusions, without attempting to verify its
contents, and that he did not administer any tests designed to assess whether
Gissendaner was malingering. Nor did he attempt to contact Dr. Stark, the
psychiatrist who evaluated Gissendaner at the time of trial, or Dr. Garlick, the
psychiatrist who held regular psychotherapy sessions with Gissendaner throughout
2001 and had found that she did not suffer from PTSD. When confronted with
evidence tending to show that Gissendaner had, in actuality, thoughtfully plotted
the murder of her husband, Dr. Bernet retreated somewhat from his position that
she lacked the capacity to plan the murder, explaining that “having a bad plan is
consistent with a person whose abilities are impaired to some extent.”
Gissendaner’s evidence, with all of its inherent flaws, did not go
unchallenged by the State. In an effort to rebut Gissendaner’s reports of abuse, the
social history that Dr. Rosenberg had composed, and the expert opinions premised
on that history, the State submitted affidavits from other members of Gissendaner’s
family, including her brother Shane and her uncle Delane. Shane Brookshire
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adamantly disputed the allegations that Gissendaner had been physically abused by
her stepfather, mother, and biological father. And both Brookshire and Delane
denied that Delane had sexually molested Gissendaner or any of his nieces.
Delane also submitted documents showing that, contrary to what Bearden and
Muller had stated in their affidavits, he was not a senior in high school when he
allegedly molested Muller in 1968 or 1969, but was only 14 years old at the time;
he did not graduate from high school until 1973.
Brookshire and Delane also cast considerable doubt on some of the
statements in Maxine Wade’s affidavit. Brookshire asserted that, in conversations
with his mother, she said she had not told collateral counsel, as they had put in her
affidavit, that Delane had molested Gissendaner. And she told Brookshire that
“she did not believe that Delane had molested Kelly.” Delane similarly stated that,
when he confronted Wade about the allegations against him, Wade assured him
that she did not believe that he had molested Gissendaner and promised she would
have collateral counsel correct her affidavit. When Delane contacted Wade later,
however, she told him that she was not going to revise her affidavit because “she
believed what she was told” and could not “let them put Kelly to death.” During
the state habeas hearing, Owen flatly denied ever having raped Gissendaner.
C.
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The state habeas court concluded that trial counsel’s penalty phase
investigation was not constitutionally deficient and that counsel had “made a
reasonable strategic decision not to present” the uncorroborated evidence of sexual
abuse that their investigation had uncovered. In reaching that conclusion, the court
first recounted the scope of counsel’s investigation into Gissendaner’s background
and family life, which included: (1) reviewing her detailed journal; (2) obtaining
her military, mental health, and medical records; (3) personally interviewing 20
family members plus one close family friend; (4) hiring an experienced private
investigator, who interviewed an additional 12 witnesses for both phases of the
trial; and (5) retaining a mental health expert, Dr. Stark, to evaluate Gissendaner.
The court then found that while counsel were “aware of some of the allegations of
physical and sexual abuse as detailed in [Gissendaner’s] journal and reported by
her mother,” they reasonably elected not to present such evidence given the lack of
independent evidence to corroborate those allegations and their legitimate concern
that, without such corroboration, the prosecution would use the allegations of
abuse to bolster its portrayal of Gissendaner as a liar attempting to avoid
responsibility for her crime.
The court likewise found that counsel’s investigation into possible mental
health issues was not deficient, emphasizing that Gissendaner had no history of
psychiatric treatment and that Dr. Stark’s expert evaluation, which “covered issues
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which might potentially have been utilized for mitigation purposes,” did not yield
any information favorable to the defense. The court noted that the allegations of
abuse set forth in Gissendaner’s post-conviction affidavits and expert reports were
“largely uncorroborated,” that the evidence of abuse presented during the state
habeas proceedings was “at best in conflict,” and that the background information
relied upon by Gissendaner’s mental health experts was unreliable, making their
conclusions unreliable.
In an effort to overcome the deference mandated by AEDPA, Gissendaner
contends that the state court unreasonably applied clearly established federal law
by conducting “no analysis of the adequacy of trial counsel’s investigation” and
simply “presuppos[ing] the reasonableness” of that investigation when it concluded
that counsel had made a reasonable strategic decision not to present evidence of
abuse at sentencing. She also asserts that counsel’s mitigation investigation was
constitutionally inadequate and, for that reason, counsel cannot be deemed to have
made a reasonable and informed penalty phase decision. We disagree on both
counts.
While it is undoubtedly true that “a reviewing court must consider the
reasonableness of the investigation said to support” a penalty phase decision made
by counsel, see Wiggins, 539 U.S. at 527, 123 S.Ct. at 2538, it is not true that the
state court in this case simply presupposed the reasonableness of counsel’s
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investigation in concluding that counsel made a strategic decision not to present
the allegations of abuse that their investigation had unearthed. The court
specifically found that counsel’s investigation was adequate, and it did so after
recounting all of the measures counsel undertook to uncover information about
Gissendaner’s upbringing, family life, and relationship with the victim. In any
event, AEDPA “focuses on the result” of a state court’s decision, “not on the
reasoning that led to that result,” and nothing in the statute requires a state court to
accompany its decision with any explanation, let alone an adequate one. Wright v.
Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002); see also
Harrington, 131 S. Ct. at 784 (“[D]etermining whether a state court’s decision
resulted from an unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state court’s reasoning.”)
As we have explained, “[t]elling state courts when and how to write opinions to
accompany their decisions . . . smacks of a ‘grading papers’ approach that is
outmoded in the post-AEDPA era.” Wright, 278 F.3d at 1255.
The state habeas court’s finding that counsel conducted an adequate
investigation into Gissendaner’s background, including possible incidents of abuse,
was entirely reasonable under the facts of this case. Far from being unjustifiably
limited or curtailed, as Gissendaner contends, trial counsel’s penalty phase
investigation was thorough. Either directly or through their private investigator,
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counsel contacted at least two dozen relatives, friends, and former coworkers in
preparation for the penalty phase of the trial, including 20 of the 23 family
members that Gissendaner had listed on her family tree. Counsel regularly met
with Gissendaner and her mother, supplied her mother with a detailed
questionnaire covering Gissendaner’s background, gathered information from her
extensive journal, and obtained her medical, mental health, and military records.
After their extensive investigation, the only evidence of abuse, sexual or otherwise,
that counsel had was: (1) Gissendaner’s self-reports that she had been sexually
abused by her stepfather, her neighbor’s father, the father of her first child, and
Owen; and (2) Maxine Wade’s vague suggestion that Gissendaner may have been
sexually molested by her stepfather.
Counsel’s thorough investigation did not uncover any first-hand witnesses
(other than Gissendaner) to the alleged incidents of sexual abuse or any
documentary evidence corroborating that abuse, such as police reports, medical
records, social service reports, or court records. Although Gissendaner and her
mother asserted during the state habeas proceedings that Gissendaner had been
physically abused by her stepfather and sexually abused by her stepfather’s nine-
year-old nephew and by her uncle Delane, they never informed trial counsel about
that despite having many opportunities to do so. See Strickland, 466 U.S. at 691,
104 S.Ct. at 2066 (“The reasonableness of counsel’s actions may be determined or
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substantially influenced by the defendant’s own statements or actions. . . . In
particular, what investigation decisions are reasonable depends critically on such
information.”); Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999) (“An
attorney does not render ineffective assistance by failing to discover and develop
evidence of childhood abuse that his client does not mention to him.”). It was
reasonable for the state habeas court to conclude that counsel’s decision to stop
their investigation into Gissendaner’s allegations of sexual abuse when they did
was not objectively unreasonable under the circumstances. “[T]here comes a
point,” the Supreme Court has said, “at which evidence from more distant relatives
can reasonably be expected to be only cumulative, and the search for it distractive
of more important duties.” Bobby v. Van Hook, 558 U.S. 4, 11, 130 S. Ct. 13, 19
(2009). Or as we have similarly observed, because “lawyers do not enjoy the
benefit of endless time, energy or financial resources,” an effective attorney “is not
required to pursue every path until it bears fruit or until all hope withers.” Head,
185 F.3d at 1237 (quotation marks omitted).
This is not a case in which trial counsel “did not even take the first step of
interviewing witnesses or requesting records,” see Porter v. McCollum, 558 U.S.
30, 39, 130 S. Ct. 447, 453 (2009), conducted a cursory investigation “limited to
one day or less” of interviewing witnesses, see Sears v. Upton, — U.S. —, 130
S. Ct. 3259, 3264 (2010) (quotation marks omitted), did not expand their
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investigation beyond the acquisition of a narrow set of records, see Wiggins, 539
U.S. at 524–25, 123 S.Ct. at 2536–37, or failed to examine readily available
documents that they knew the prosecution intended to use in aggravation, see
Rompilla v. Beard, 545 U.S. 374, 383–84, 125 S. Ct. 2456, 2464 (2005). Instead,
it’s a case like Strickland itself in which counsel’s “decision not to seek more
[mitigating] evidence than was already in hand” fell within “the range of
professionally reasonable judgments.” 466 U.S. at 699, 104 S.Ct. at 2070. At the
least, fair-minded jurists could so conclude, which is enough to satisfy AEDPA’s
highly deferential standards and preclude federal habeas relief. 4 See Holsey, 694
F.3d at 1257.
The state habeas court’s finding of no deficient performance was also
reasonable with respect to trial counsel’s mental health investigation, which
included obtaining Gissendaner’s mental health records and consulting with Dr.
Stark. Gissendaner asserts that counsel merely asked Dr. Stark to assess whether
there was a viable defense based on mental retardation or insanity. The state
4
In his post-conviction affidavit, produced over five years after the penalty phase of
Gissendaner’s trial, Reilly attempted to concede deficient performance, explaining that he
“should have more thoroughly investigated” the allegations of sexual abuse and that he “had no
tactical nor strategy reason for failing to pursue further investigation” of such abuse.
Nevertheless, because Strickland’s standard for deficient performance is an objective one, trial
counsel’s hindsight assessment of the adequacy of his penalty phase investigation is entitled to
little, if any, weight. See Windom, 578 F.3d at 1246 n.11 (“Because the adequacy of an
attorney’s performance is measured against an objective standard of reasonableness, the fact that
trial counsel admits that his performance was lacking is of little, if any, consequence.”); Jennings
v. McDonough, 490 F.3d 1230, 1247 (11th Cir. 2007) (“The Strickland standard of objective
reasonableness does not depend on the subjective intentions of the attorney, judgments made in
hindsight, or an attorney’s admission of deficient performance.”).
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habeas court, however, found that Dr. Stark’s evaluation “covered issues which
might potentially have been utilized for mitigation purposes” — a factual finding
that is not objectively unreasonable in light of the record. See Miller-El v.
Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003) (“Factual determinations
by state courts are presumed correct absent clear and convincing evidence to the
contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and
based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court
proceeding, § 2254(d)(2).”). Although neither of Gissendaner’s trial attorneys
could recall during the state collateral proceedings whether Dr. Stark was
specifically asked to examine mental health issues beyond that of mental
retardation and insanity, Reilly did testify that he believed that Dr. Stark’s
assessment “covered issues which potentially might have been utilized for
mitigation purposes.” The record also indicates that Dr. Stark, after evaluating
Gissendaner, surmised that her history of infidelity may have stemmed from a
rejection of her bisexuality or homosexuality. That finding indicates that Dr.
Stark’s assessment extended beyond issues of insanity and mental retardation.
While the record is admittedly ambiguous as to the scope of Dr. Stark’s
psychiatric evaluation, Gissendaner, who has the burden of proof and persuasion,
cannot benefit from those ambiguities or from trial counsel’s lack of recollection
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years after the fact. See Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 901
n.9 (11th Cir. 2013) (“[C]ounsel’s understandable lack of memory” when
testifying years later about his actions at and before trial should not be equated
with deficient performance); Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228,
1245 (11th Cir. 2011) (explaining that, given the presumption that counsel acted
reasonably, a petitioner cannot benefit from “trial counsel’s short memory”);
Williams v. Allen, 598 F.3d 778, 794 (11th Cir. 2010) (“An ambiguous or silent
record is not sufficient to disprove the strong and continuing presumption of
counsel’s competency. Therefore, where 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.”) (quotation marks and brackets
omitted); Putman v. Head, 268 F.3d 1223, 1243 (11th Cir. 2001) (“If the record is
incomplete or unclear about counsel’s actions, then it is presumed that counsel
exercised reasonable professional judgment.”).
Gissendaner relies on our decision in Ferrell v. Hall, 640 F.3d 1199 (11th
Cir. 2011), to support her contention that Dr. Stark’s mental health evaluation was
“unjustifiably and unreasonably circumscribed.” In Ferrell the Georgia Supreme
Court had decided that trial counsel’s mental health investigation was not deficient
even though it consisted of nothing more than hiring a mental health expert to
examine the petitioner for mental retardation and “any problems that may have
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affected his waiver of rights for the statements he gave to the police.” 640 F.3d at
1227. In concluding that the state court’s decision was unreasonable, we pointed
out “the many red flags that had been raised about Ferrell’s mental health
throughout the proceeding,” which should have “led counsel to pursue a more
comprehensive mental health investigation.” Id. We emphasized that the record
revealed “numerous, obvious indicators” that the petitioner suffered from
substantial mental health problems, including that he “talked about his religious
beliefs excessively,” “spoke directly to God,” behaved strangely throughout the
trial proceedings, and — most importantly — suffered a seizure during the trial
itself, which caused him “to fall onto the floor, shake and speak gibberish.” Id. at
1227–28. We noted that, “despite Ferrell’s obvious mental disabilities,” defense
counsel never questioned any of his family members about his mental health
history, which included hallucinatory episodes and multiple head injuries. Id. at
1228.
The circumstances of this case do not resemble those in Ferrell. There is no
indication that Gissendaner exhibited any “red flags” or “obvious indicators” of
substantial mental health problems, which would have led a reasonable attorney to
delve further into possible mental health issues. Unlike Ferrell, Gissendaner did
not talk about religion excessively, speak directly to God, hallucinate, suffer a
seizure, shake and speak gibberish, or otherwise behave strangely. Her medical
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and mental health records revealed no significant mental health issues and, on the
questionnaire supplied by counsel, Gissendaner’s mother unequivocally stated that
there was no history of mental illness in her family. 5 Counsel also knew that
Gissendaner had successfully graduated from high school, held down a series of
jobs since she was 16 years old, and served in the military for 18 months. Given
Dr. Stark’s conclusions and the absence of any other evidence to suggest that
Gissendaner suffered from serious mental health issues, it was not unreasonable for
the state habeas court to decide that counsel’s investigation of Gissendaner’s
mental health was reasonable. See Callahan v. Campbell, 427 F.3d 897, 934 (11th
Cir. 2005) (noting that, when a defendant “does not display strong evidence of
mental problems,” counsel is not even “required to seek an independent
evaluation”) (quotation marks omitted).
That Gissendaner, years after the fact, was able to locate and hire three
mental health experts willing to testify that she suffers from frontal lobe brain
damage, PTSD, and submissive personality traits does not demonstrate that trial
counsel’s mental health investigation was unreasonably curtailed or otherwise
5
The only evidence that counsel had at their disposal to indicate any possible mental
health issues was a set of progress notes from Gissendaner’s voluntary visit to a mental health
center in 1995 to seek treatment for stress and trouble managing her temper with her children.
Although the notes indicate that Gissendaner reported that she had “serious suicidal thoughts”
three months earlier, she also reported no personal or family psychiatric history. A mental status
examination at that time concluded that, aside from moderate personal distress, Gissendaner
displayed an appropriate affect, normal intellectual functions and thought content, no memory
impairment, and good insight.
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deficient. See Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1242 (11th Cir.
2010) (“[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.”) (quotation marks
omitted); Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (same);
Horsley v. State of Ala., 45 F.3d 1486, 1495 (11th Cir. 1995) (same). That is
especially true because, as the state habeas court noted, the conclusions of
Gissendaner’s mental health experts are unreliable and lack even a modicum of
credibility. And we agree with the district court’s assessment that the social
history report that Dr. Rosenberg composed, which Gissendaner’s other expert
witnesses blindly accepted in formulating their diagnoses of brain damage and
PTSD, was “biased towards uncritical acceptance of [Gissendaner’s] self-reports of
traumatic childhood experiences” and failed to acknowledge conflicting reports
from family members, most notably Shane Brookshire’s contentions that his sister
had not been subjected to either physical or sexual abuse.
Dr. Young’s and Dr. Bernet’s conclusions were also unpersuasive for other
reasons. Dr. Young’s findings, including her diagnosis of brain damage, were
based on Gissendaner’s responses to the Rorschach inkblot test, which Dr. Young
admitted had been highly criticized in the psychiatric community, and the patently
absurd results of the Rey Complex Figure test, which placed Gissendaner — a
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woman who had successfully completed high school, served in the military, cared
for three children, and been consistently employed since the age of 16 — “in the
less than 1st percentile” of all people in her ability to organize complex
information. Dr. Young did not attempt to confirm her finding of brain damage
through the use of any objective diagnostic tests, such as an MRI or CAT scan, and
she employed no specific tests to assess whether Gissendaner was malingering
during her evaluation. Her insistence that not one of the two dozen capital
defendants she had evaluated over the years had ever attempted to feign mental
illness, even though doing so might save them from execution, is incredible
enough to render her testimony non-credible.
Dr. Bernet’s diagnosis of PTSD, as well as his conclusion that Gissendaner
lacked the capacity to premeditate and carry out the murder of her husband, were
undermined by his failure to administer any malingering tests, seriously consider
evidence showing that Gissendaner had planned the murder, and confer with
Gissendaner’s previous psychiatrists, one of whom (Dr. Garlick) had held regular
psychotherapy sessions with Gissendaner and specifically ruled out a diagnosis of
PTSD.
Because the state habeas court’s finding that trial counsel conducted a
constitutionally adequate mitigation investigation did not involve an unreasonable
application of Strickland or depend on an unreasonable finding of fact, the district
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court correctly rejected Gissendaner’s penalty phase claim of ineffective assistance
of counsel.6
V. CONCLUSION
For these reasons, we affirm the district court’s denial of Gissendaner’s
§ 2254 petition for a writ of habeas corpus.
AFFIRMED.
6
The state court also concluded that Gissendaner was not prejudiced by trial counsel’s
allegedly deficient investigation because there was no “reasonable probability, that but for this
performance, the result of [her] trial would have been different.” Because Gissendaner has not
satisfied her burden of demonstrating deficient performance, however, we need not address the
state court’s alternative conclusion that there was no prejudice. See Windom, 578 F.3d at 1248.
48