Riechmann v. Florida Department of Corrections, 100719 FED11, 18-10145

Docket Nº:18-10145
Opinion Judge:HULL, Circuit Judge.
Party Name:DIETER RIECHMANN, Petitioner-Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents-Appellees.
Judge Panel:Before ROSENBAUM, GRANT and HULL, Circuit Judges.
Case Date:October 07, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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DIETER RIECHMANN, Petitioner-Appellant,

v.

FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents-Appellees.

No. 18-10145

United States Court of Appeals, Eleventh Circuit

October 7, 2019

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:13-cv-20863-JEM

Before ROSENBAUM, GRANT and HULL, Circuit Judges.

HULL, Circuit Judge.

Dieter Riechmann, a Florida state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 federal habeas corpus petition challenging his convictions for first-degree murder and possession of a firearm during the commission of a felony. This Court granted a certificate of appealability ("COA") on two issues: (1) whether trial counsel provided ineffective assistance by failing to investigate and present available evidence that Riechmann's relationship with the victim was loving and respectful and that he did not "live off" her; and (2) whether the state's failure to disclose to the defense the statements of Swiss and German witnesses interviewed by German police violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). After review, and with the benefit of oral argument, we affirm.

I. STATE TRIAL PROCEEDINGS

In 1987, a grand jury indicted Riechmann on charges of premeditated first-degree murder of Kersten Kischnick and use of a firearm during the commission of the murder. Riechmann and Kischnick, "life companions" of 13 years, were German citizens and residents who came to Florida on October 2, 1987, for a vacation. On October 25, 1987, Kischnick was shot to death in Miami Beach while she sat in the passenger seat of the couple's rental car.

At trial, the state's theory of the case was that the victim, Kischnick, was a prostitute who financially supported Riechmann, who was her pimp. When Kischnick decided to quit prostitution, Riechmann killed her to recover valuable life insurance proceeds. As to the specific facts of the murder, the state sought to prove that Riechmann stood outside the passenger side of the rental car and fired a single shot through the partially open passenger-side window, striking Kischnick in the head and killing her. Riechmann insisted to police and at trial that a random stranger shot Kischnick when they stopped the car to ask for directions. He consistently denied committing the crime.

A. Pretrial Proceedings

Prior to trial, Riechmann's defense counsel learned that the state was in possession of 37 statements taken by the German police in connection with its parallel investigation of Riechmann. It appears from the record that defense counsel was in possession of the list of names but not all of the statements themselves. These were statements of persons in Germany and Switzerland who knew Riechmann and Kischnick.

Riechmann's defense counsel did have the statements of ten of those 37 witnesses-the statements of those who might testify at trial-and he requested copies of the 27 remaining statements. The state failed to provide the defense with these 27 other statements despite the state trial court's on-the-record ruling that Riechmann was to get "carte blanche discovery . . . . No ifs, ands, or buts. No conditions. Whatever the state has he gets."

When the prosecutor refused to comply, Riechmann's defense counsel moved the state trial court to conduct an in camera inspection of the statements and turn the relevant statements over to the defense. It does not appear that the state trial court ever ruled on that motion, and Riechmann's trial counsel did not renew it.

Despite learning about the existence of several Swiss and German persons who might have had relevant information about the nature of Riechmann and Kischnick's relationship, defense counsel spoke to no German witnesses prior to trial, nor did he send an investigator to Germany. Riechmann also provided his defense counsel with a handwritten list of persons in Germany to depose or contact, but defense counsel did not contact anyone on the list.

B. Riechmann and Kischnick's Relationship

At trial, the government sought to establish the nature of Riechmann and Kischnick's relationship primarily through the testimony of four German witnesses, including Kischnick's sister. These witnesses were culled from the list of 37 German witnesses referenced above.

The first of these witnesses was Peter Carsten Meyer-Reinach, who met Riechmann and Kischnick in Hamburg in 1977. During the time of his acquaintance with the couple, Meyer-Reinach knew Kischnick to be a prostitute and Riechmann to be her pimp. During that time, Kischnick earned between 1, 000 and 1, 500 German marks per day as a prostitute.1

At some point, Riechmann and Kischnick moved from Hamburg to a German town near the Swiss border, in part because "the work for [Kischnick] . . . wasn't good anymore." Meyer-Reinach saw Riechmann twice more following the move, and during one of these interactions, Riechmann commented that Kischnick "really didn't feel like working anymore."

The second German witness, Ernst Siegfried Steffen, was an insurance agent in Hamburg who sold various life insurance policies to Riechmann and Kischnick. Steffen too had met Riechmann in Hamburg in 1977, and was aware that Kischnick worked as a prostitute under the name Yvonne. Riechmann had also told Steffen that Riechmann worked as a pimp.

Steffen confirmed Riechmann and Kischnick maintained a "high standard of living" while in Hamburg, and he believed Kischnick was making about 1, 000 German marks per day as a prostitute. As for Riechmann, Steffen recalled helping him obtain a luxury apartment by verifying a certificate of earnings showing Riechmann made 3, 950 German marks per month, though the certificate of earnings did not state the origin of those earnings. Riechmann also told Steffen that he had received training as an insurance agent. Like Meyer-Reinach, Steffen was aware that Riechmann and Kischnick had at some point moved to southern Germany near the Swiss border, in part because "[b]usiness apparently wasn't going too well in Hamburg."

The third witness was Kischnick's younger sister, Regina, who first met Riechmann when Kischnick brought him home in 1974. Regina did not learn of her sister's occupation until several years later. During the time that Riechmann and Kischnick lived in Hamburg, Regina never knew Riechmann to work at any particular job, though she recalled Kischnick telling her that Riechmann "had business dealings with Arabs"-specifically, "dealings in gold." Kischnick seemed content, if not happy, in her life with Riechmann in Hamburg, but she became noticeably unhappy upon their move to southern Germany. On the occasions that Regina visited her sister in southern Germany, it did not appear to her that Riechmann was working. Regina learned that Kischnick had gotten married to someone other than Riechmann and obtained a Swiss passport. There were several times when Regina would call the apartment in southern Germany and Riechmann would answer and tell her that Kischnick "was in Switzerland with a girlfriend." Regina often heard Riechmann make derogatory comments about Kischnick's age and figure.

On cross-examination, Regina stated that she believed much of the expensive jewelry and apartment furnishings Riechmann and Kischnick owned had been paid for by Kischnick's earnings. Regina conceded, however, that the couple's earnings likely were supplemented in some way by Riechmann, and that she had no way of definitively knowing the origin of the money used to purchase particular gifts or furnishings.

The final witness was a woman named Dina Mohler, who then worked as a prostitute in Switzerland. Mohler first met Kischnick a few years after Kischnick and Riechmann moved to southern Germany. Kischnick had replied to an advertisement Mohler placed in the newspaper seeking a "colleague" with whom to share her apartment. By "colleague," Mohler meant another prostitute who would pay rent to use the shared space. Kischnick, who worked under the name Yvonne, was supposed to pay Mohler 1, 000 Swiss francs per month to use the apartment, but Kischnick was unable to make this payment because she was physically ill and depressed. Specifically, Kischnick was unable to provide services to her customers for large stretches of time because she was suffering from "gynecological problem[s]," which at times were so severe that she doubled over in pain.

Approximately three months after starting to work with Mohler, Kischnick departed for the United States with Riechmann. Not once during those three months with Mohler was Kischnick able to make a full rental payment, and she confided in Mohler that she was earning far less than she had previously.

On cross-examination, Mohler admitted that she had never spent any time...

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