Gissendaner v. Seaboldt

• Decision Date: 19 November 2013
• Docket Number: No. 12–13569.,12–13569.
• Citation: 735 F.3d 1311
• Parties: Kelly Renee GISSENDANER, Petitioner–Appellant, v. Kathy SEABOLDT, Warden, Metro State Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

735 F.3d 1311

Kelly Renee GISSENDANER, Petitioner–Appellant,

v.Kathy SEABOLDT, Warden, Metro State Prison, Respondent–Appellee.

No. 12–13569.

United States Court of Appeals,Eleventh Circuit.

Nov. 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 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, 272 Ga. 704, 532 S.E.2d 677, 682, 691 (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 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, 1997, based on statements Owen made to the police confessing his involvement and implicating her in the murder.

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 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. SeeGa.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 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, 10 L.Ed.2d 215 (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

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, 179 L.Ed.2d 374 (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, 152 L.Ed.2d 914 (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 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, 178 L.Ed.2d 624 (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...