Gissendaner v. Comm'r, Ga. Dep't of Corr.

• Citation: 794 F.3d 1327
• Decision Date: 24 July 2015
• Docket Number: No. 15–10884,15–10884
• Parties: Kelly Renee GISSENDANER, Plaintiff–Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

794 F.3d 1327

Kelly Renee GISSENDANER, Plaintiff–Appellant

v.COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Defendants–Appellees.

No. 15–10884

United States Court of Appeals, Eleventh Circuit.

July 24, 2015.

Lindsay Bennett, Federal Defender Program, Inc., Sacramento, CA, Susan C. Casey, Michael Kennedy McIntyre & Associates, Atlanta, GA, for Plaintiff–Appellant.

Sabrina Graham, Beth Attaway Burton, Attorney General's Office, Atlanta, GA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before ED CARNES, Chief Judge, TJFOLAT and JORDAN, Circuit Judges.

Opinion

ED CARNES, Chief Judge:

Kelly Gissendaner, a Georgia death row inmate, appeals the district court's dismissal of her 42 U.S.C. § 1983 complaint. Her complaint alleges that her federal due process rights were violated when the warden of the prison where she was housed ordered the prison staff not to speak with Gissendaner's legal team as they were gathering evidence in support of her application for clemency.

I.

Gissendaner was convicted of malice murder and sentenced to death for masterminding the brutal murder of her husband. See Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677, 681–83 (2000). She tried (and failed) in state and federal court to challenge her conviction and sentence.¹ On February 9, 2015, the Superior Court of Gwinnett County issued an order directing the Georgia Department of Corrections to execute Gissendaner. The order created a seven-day window for the execution, lasting from February 25 to March 4, 2015. See Ga.Code § 17–10–40(b). The original execution date was set for February 25.

Anticipating that an execution date would be set in early 2015, Gissendaner's legal team (which included both her attorneys and an investigator working on her behalf) had begun in late 2014 to prepare an application for state clemency. Her application would be heard by the State Board of Pardons and Paroles, which has the power to grant executive clemency to the State's prisoners. Ga. Const. art. IV, § 2(2); see Ga.Code § 42–9–1 et seq. As part of their preparations, Gissendaner's legal team interviewed a number of the staff working at Lee Arrendale State Prison and Metro State Prison. Arrendale is the prison where Gissendaner is currently housed, and Metro is the prison where Gissendaner was previously housed. Early on, four Arrendale staff members provided her legal team with written statements in support of Gissendaner.

Eight other staff members at Arrendale and Metro expressed a willingness to support Gissendaner—either through written statements or testimony at the clemency hearing. Those eight staff members, however, changed their mind after the warden at Arrendale, Kathleen Kennedy, issued a memo in January 2015 to all prison staff.² The memo was titled “Public Information / Media Contact” and stated:

An execution date might be scheduled in the immediate future for our inmate under death sentence. This action will likely bring a lot of publicity to [Arrendale].

Be advised that if ANYONE calls you with questions regarding this issue, you are to refer them to the DOC Public Affairs office....

Under no circumstances are you to discuss this with people outside this institution. Staff should also be careful what is said to other inmates and personal feelings are to be suppressed. If you have questions or concerns, please contact Warden Kennedy or Deputy Warden Tatum.

After receiving the memo, the eight staff members withdrew their commitments to offer statements or testimony supporting Gissendaner. And when Gissendaner's legal team approached other staff members at the prisons about her clemency proceedings, the staff members refused to testify or provide written statements. Some of the staff members told Gissendaner's investigator that “they could not help based on a [Department of Corrections] directive and, further, that they feared that if they did, their jobs would be at stake.”

Gissendaner filed her application for clemency on February 20, 2015, and the Board notified her that it would hold a hearing on her application on February 24. At the hearing, Gissendaner's attorneys appeared on her behalf and presented testimony from fifteen witnesses plus thirteen written statements of support from current and former staff members at Arrendale and Metro, as well as other evidence. Of the fifteen witnesses to actually testify on her behalf at the hearing, the only one who was a staff member at the time of the hearing was Chaplain Susan Bishop of Arrendale. The four Arrendale staff members who had submitted written statements before Warden Kennedy issued her memo did not withdraw their statements, and those four written statements were presented to the Board at the hearing.

The morning after the hearing, the Board denied Gissendaner's application for clemency. At the time, her execution was still scheduled for that evening. A few hours after the Board's decision, however, predictions of inclement weather led the State to postpone the execution until 7:00 p.m. ET on March 2, 2015, which was five days away.

The day before her rescheduled execution was to take place, Gissendaner obtained a copy of Warden Kennedy's memo. The next day, the day she was rescheduled to be executed, Gissendaner filed a 42 U.S.C. § 1983 lawsuit claiming that her due process rights had been violated because the warden's memo had interfered with her ability to obtain and present evidence in support of her application for clemency. Because her rescheduled execution was only hours away, she also filed motions for a preliminary injunction and for a stay of execution. That same day, the State moved to dismiss Gissendaner's complaint, and the district court held a hearing on the various motions. After the hearing, the district court issued an order denying Gissendaner's motions and granting the State's motion to dismiss her complaint. Even though it denied her motions for an indefinite stay and an injunction, the court granted Gissendaner a 24–hour stay so that this Court could hear her appeal.

That evening both parties filed notices of appeal. Gissendaner's appeal challenged the dismissal of her complaint and the denial of her motions for a stay and a preliminary injunction. The State's appeal challenged the district court's 24–hour stay. This Court issued an order in the State's appeal dissolving the 24–hour stay because, based on our review of the record and the parties' submissions, we did not need any more time to conclude that Gissendaner had not demonstrated the substantial likelihood of success on the merits required to justify a stay. Our order allowed the State to proceed with the execution, but around 10:20 p.m. the State postponed the execution because of concerns about the condition of the drugs that were to be used in the execution. Two days later, we ordered that the State's appeal be closed because it had already received the relief it sought in that appeal—vacatur of the 24–hour stay.

This is Gissendaner's appeal from the order dismissing her complaint.³

II.

“We review a district court's dismissal under Rule 12(b)(6) for failure to state a claim de novo, accepting the complaint's allegations as true and construing them in the light most favorable to the plaintiff.” Arthur, 500 F.3d at 1339.

Gissendaner contends that her complaint states a claim for relief under the Due Process Clause. See U.S. Const. Amend. XIV, § 1. In her view, the Clause “demands that a prisoner seeking clemency must receive the process that the state has established for all clemency petitioners.” She points to the version of Georgia Code § 42–9–43 in force at the time of her hearing, which instructs the Board to “cause to be brought before it all pertinent information on the person in question” when considering an application for clemency.⁴ See Ga.Code § 42–9–43(a). From there, she argues that Warden Kennedy's memo interfered with the procedure created by § 42–9–43 —and thereby violated her due process rights—because the memo prevented her from obtaining pertinent evidence and presenting it to the Board. But the procedural component of the Due Process Clause does not require the States to comply with state-created procedural rules. Instead, it requires them to adhere to a certain minimal level of process when seeking to deprive an individual of a substantive interest protected by the Clause—namely, “life, liberty, or property.” U.S. Const. Amend. XIV, § 1.

A.

The Supreme Court's decision in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), did recognize a due process interest in the context of state clemency proceedings for death row inmates. The holding in that case was provided by Justice O'Connor's concurring opinion. Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1268, 1269 n. 2 (11th Cir.2014) (recognizing Justice O'Connor's concurring opinion as “set[ting] binding precedent”). Her opinion acknowledges that the “life” interest protected by the Due Process Clause itself guarantees “some minimal procedural safeguards” for state clemency proceedings involving death row inmates. Woodard, 523 U.S. at 289, 118 S.Ct. at 1254 (O'Connor, J., concurring).

The key word here is “minimal.” Justice O'Connor's opinion concludes that the prisoner in Woodard had received adequate process despite the fact that he was given only a few days notice of his hearing, that he was interviewed by the parole board without his attorney present, that his attorney was “permitted to participate in the hearing only at the discretion of the parole board chair,” and that the prisoner “was precluded from testifying or submitting documentary evidence at the hearing.” Id. at 289–90, 118 S.Ct. at 1254. That procedure, it was held, satisfied “whatever limitations the Due Process Clause may impose on clemency proceedings.”⁵ Id. at 290, 118 S.Ct. at 1254 (emphasis added). The only circumstances that Justice O'Connor's opinion identifies in...