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Wessinger v. Vannoy

United States District Court, M.D. Louisiana

December 19, 2019

TODD KELVIN WESSINGER
v.
DARREL VANNOY

          RULING AND ORDER

          JOHN W. DeGRAVELLES, JUDGE

         This matter comes before the Court on the Petitioner's Motion for Summary Judgment, or, in the Alternative, for an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for Relief from Judgment (Doc. 234) filed by Petitioner Todd Kelvin Wessinger (“Petitioner” or “Wessinger”). Respondent State of Louisiana (“Respondent”) opposes the motion (Doc. 244), and Petitioner has filed a reply (Doc. 245). Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, Petitioner's motion is denied.

         I. Relevant Factual and Procedural Background

         The following facts are taken entirely from Petitioner's Statement of Uncontested Material Facts in Support of Rule 56 Motion for Summary Judgment or, in the Alternative, for Relief from Judgment Under Rule 60(b)(6) (Doc. 234-2) (“SUMF”). Respondent failed to controvert these facts, as required by the local rules.[1] Accordingly, all of the facts set forth in the SUMF are “deemed admitted, for purposes of the motion[.]” M.D. La. LR 56(b).

         A. State Capital Trial Proceedings

         Petitioner was charged in state court in Baton Rouge, Louisiana with two counts of first degree murder for the November 19, 1995 shooting deaths of Stephanie Guzzardo and David Breakwell. (SUMF ¶ 1.) At the time of his first-degree murder trial on these charges, which began on June 16, 1997, Petitioner was represented by Baton Rouge attorneys Greg Rome and Joseph William “Billy” Hecker, who is now deceased, both of whom were appointed as counsel for Petitioner on January 7, 1997, less than six months prior to trial. (SUMF ¶ 1.) Jury selection began on June 16, 1997, and eight days later, on June 24, 1997, Petitioner was convicted on both counts. (SUMF ¶ 1.)

         The next day, June 25th, the same jury returned death sentences on both counts following a defense penalty phase presentation that lasted less than four hours, including cross-examination by the prosecution. (SUMF ¶ 2.) Hecker, who was solely responsible for the penalty phase of the trial, did not conduct a mitigation investigation, nor did he employ someone to do so. (SUMF ¶ 2.) The Louisiana Supreme Court affirmed the convictions and sentences. (SUMF ¶ 2 (citing State v. Wessinger, 98-1234 (La. 5/28/99); 736 So.2d 162).

         B. State Post-Conviction Proceedings

         On January 3, 2001, the Louisiana Supreme Court formally appointed Soren Gisleson, a first-year associate at the New Orleans, Louisiana law firm of Herman, Herman, Katz & Cotlar, LLP, to represent Petitioner in state post-conviction proceedings following the firm's agreement to accept pro bono representation of a death row inmate. (SUMF ¶ 3.)

         Prior to formal appointment, on December 27, 2000, Gisleson filed a three-page shell petition in an effort to stop the one-year clock from running. (SUMF ¶ 4.) “At a status conference in February of 2001, the state post-conviction trial court gave Gisleson 60 days, until April 10, 2001, to file a more complete, amended petition.” (SUMF ¶ 4.)

         On March 12, 2001, Gisleson filed a motion with the state post-conviction trial court requesting funding for investigative assistance to establish the factual basis for claims of ineffective assistance of counsel at the guilt and penalty phases of Wessinger's trial. (SUMF ¶ 5.) The motion included general allegations that trial counsel's preparation of the penalty phase was “woefully inadequate” and “there is every reason to believe that such investigation would produce information that should have bene [sic] presented to Mr. Wessinger's jury.” (SUMF ¶ 5.)

         On April 5, 2001, Gisleson filed a motion in the state post-conviction trial court to continue the April 10, 2001, filing deadline for the state post-conviction petition. (SUMF ¶ 6.)

         On April 10, 2001, the state trial court extended the deadline an additional 60 days, until June 11, 2001, to file an amended state post-conviction petition. (SUMF ¶ 7.) Also, on April 10, 2001, the state trial court ordered Gisleson to petition the Louisiana Indigent Defender and Assistance Board (LIDAB), which the court found to be responsible for funding the post-conviction investigation, to determine if the board would actually fund the investigation and report back to the court. (SUMF ¶ 7.) Further, the state trial court set an April 24, 2001 hearing date if there were “any problems with getting funding, ” at which time the court told Gisleson, “if you have any evidence to present, you better have it that day because it won't be continued to another day. That issue will be resolved that day.” (SUMF ¶ 7.)

         On April 16, 2001, Gisleson notified the state trial court that the Louisiana Indigent Defense Assistance Board (LIDAB), the Capital Post-Conviction Project of Louisiana (CPCPL) and the Baton Rouge Indigent Defender Board, all of whom he reached out to for funding and assistance, took the position that they were not responsible for providing funding for investigation in state post-conviction for Petitioner. (SUMF ¶ 8.) The Director of the local Baton Rouge Indigent Defense Board stated that if the state trial court ordered him to pay for investigative and expert expenses for Wessinger, as the state trial court did in State ex rel. Jimmy Ray Williams v. Burl Cain, No. 7-94-871, 19th Judicial District Court, “nothing would be provided, as his office currently has no funds available.” (SUMF ¶ 8.)

         By letter to the state trial court dated April 11, 2001, the director of LIDAB Edward R. Greenlee wrote that “[t]he only funds available in the LIDAB budget for Capital Post-Conviction cases have been fully dedicated to the Capital Post Conviction Project of Louisiana (CPCPL). Unfortunately, the available funds are insufficient to enable CPCPL to assist financially in any cases where the client is already represented. The funding of the backlog of cases is the responsibility of the local Indigent Defender Boards.” (SUMF ¶ 9.) Mr. Greenlee also referenced his testimony to this effect in the case of Jimmy Ray Williams. (SUMF ¶ 9.)

         On April 23, 2001, Gisleson filed a motion to continue the April 24th hearing for three weeks because Petitioner “has been patently unable to secure the testimony of necessary experts or provide experts with the time to review ‘bare-boned' facts and evidence of the case” to determine what expert services are needed, the extent of the services needed, and the cost. (SUMF ¶ 10.) Gisleson further stated that “Petitioner has been unable to arrange for a single expert to appear or for any affidavits, ” and, at the time the April 24, 2001, hearing date was set, “undersigned counsel did not appreciate that this much time and difficulty would be encountered.” (SUMF ¶ 10.)

         The state trial court went forward with the April 24, 2001 hearing. (SUMF ¶ 11.) The state court denied the request for funding for experts. (SUMF ¶ 11.)

         On June 5, 2001, a week before the June 11th state post-conviction petition filing deadline, Gisleson filed a motion to withdraw with the Louisiana Supreme Court, seeking to be relieved of the representation based on his admitted inability “to provide competent representation in post-conviction” proceedings in state court “under the time and resource constraints” with which he was presented. (SUMF ¶ 12.) This motion was denied by the Louisiana Supreme Court, with one justice concurring and suggesting that counsel for Petitioner “may seek assistance of counsel of LADAB if he deems that advisable.” (SUMF ¶ 12.)

         Gisleson filed an amended state post-conviction petition by the June 11, 2001, deadline set by the state trial court. (SUMF ¶ 13.)

         Following the State's filing of its response in February of 2003, Gisleson filed a second amended petition in August of 2003. (SUMF ¶ 14.)

         At a September 3, 2003 status conference, the state trial court denied relief, dismissing all claims in the first amended post-conviction petition as procedurally barred due to lack of factual support, and denying relief on the merits on the ineffective assistance of trial counsel claims in the second amended post-conviction petition. (SUMF ¶ 15.) The Louisiana Supreme Court affirmed. (SUMF ¶ 15 (citing State ex rel. Wessinger v. Cain, 2003-3097 (La. 9/3/04); 882 So.2d 605).)

         C. Federal Habeas Proceedings

         1. Pre-Decision Happenings

         On September 4, 2004, a day after the adverse state post-conviction ruling by the Louisiana Supreme Court, Gisleson filed a habeas petition in federal district court raising the same claims that he raised in the state courts. (SUMF ¶ 16.) This habeas petition included the penalty phase ineffective assistance of trial counsel claim that was presented to the state postconviction courts and that was based on trial counsel's penalty phase failures as reflected in the transcript of the penalty phase of the trial. (SUMF ¶ 16.)

         After additional counsel was appointed by Judge Brady, Petitioner, through new counsel, filed an Amended Petition for Writ of Habeas Corpus. (SUMF ¶ 17.) The amended petition included a claim, Claim XI-C, that trial counsel was ineffective at the penalty phase of Wessinger's first degree murder trial. (SUMF ¶ 17.) The claim alleged that trial counsel failed to secure the services of a mitigation specialist and did not conduct a social history investigation of Petitioner, and instead called witnesses counsel met for the first time in the hallway outside the courtroom and presented damaging testimony through counsel's own unprepared expert witnesses. (SUMF ¶ 17.)

         Claim XI-C also alleged what trial counsel would have discovered had he conducted a proper mitigation investigation, including powerful mitigation evidence regarding Petitioner's family history of mental illness, alcohol abuse and violence and Petitioner's own mental illness, none of which ever had been presented to the state courts. (SUMF ¶ 18 (citing Doc. 120 at 232- 56.).) This mitigation included that Petitioner's maternal and paternal families have a significant history of seizure disorders, mental retardation, cerebral palsy and other neurologic and cognitive impairments and alcohol abuse; that Petitioner struggled with neurologic and psychiatric symptoms that adversely affected his ability to function over the course of his life; that Petitioner experienced repeated and severe seizures as a child and was medicated with Phenobarbital; that Petitioner, who faced great difficulty in school and fell behind his peers academically, suffered ridicule, humiliation and physical abuse by his father, who singled him out for cruel treatment; that neuropsychological testing of Petitioner shows signs of significant psychomotor impairment, right hemisphere abnormality, deficits associated with fetal alcohol spectrum disorder and other signs of cerebral dysfunction and moderate brain impairment; that Petitioner was raised by parents whose world view, handed down to their children, was shaped by the circumstance that they grew up on Louisiana plantations that remained little changed since slavery, and who constantly struggled to make ends meet in raising their children in poverty in segregated Baton Rouge; that Petitioner was raised by a father, an alcoholic, who was a violent man who hit, pushed, and threatened his wife when he was drunk. (SUMF ¶ 18 (citing Doc. 120 at 232-56.).)

         In its Memorandum in Opposition to Petition for Writ of Habeas Corpus, respondent alleged that in this penalty phase ineffective assistance of counsel claim “[P]etitioner goes way beyond what he presented to the state courts for consideration of this claim below. As such, he should not be permitted to alter the habeas record by including items and discussions that he did not present to the state courts.” (SUMF ¶ 19 (citing Doc. 129 at 151).)

         2. Judge Brady's Decisions

         The district court initially denied habeas relief on all claims. (SUMF ¶ 20 (citing Doc. 135 at 1.) However, following the Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1, 132 Sc. 1309 (2012), Petitioner filed a timely motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend the judgment denying the petition with respect to Claim XI-C. (SUMF ¶ 20.) While acknowledging that the penalty phase ineffectiveness Claim XI-C was not fairly presented to the Louisiana state courts and, thus, was procedurally defaulted, Petitioner argued that this was no barrier to review by the federal courts because state post-conviction counsel Gisleson had failed to provide effective representation in state post-conviction proceedings, thereby excusing any procedural default under Martinez. (SUMF ¶ 20.) Petitioner also argued that the procedural default should be excused because the state refused to provide the requested necessary funding for mitigation and other expert assistance in state post-conviction proceedings, despite post-conviction counsel's request for funding from multiple sources, including the state postconviction court, such that the state corrective process was ineffective to protect petitioner's rights, citing to 28 U.S.C. § 2254(b)(1)(B)(ii). (SUMF ¶ 20 (citing Doc. 141 at 22-24).)

         The district court granted the Rule 59(e) motion, concluding that the evidence alleged in support of the penalty phase ineffectiveness claim was materially and significantly different and stronger than what was presented to the state court. (SUMF ¶ 21 (citing Doc. 156 at 3).) As a result, Judge Brady concluded that Claim XI-C had not been fairly presented to the state courts during state post-conviction proceedings and was therefore procedurally barred. (SUMF ¶ 21 (citing Doc. 156 at 3-4).) Judge Brady also concluded that petitioner's procedural default would not bar merits review if petitioner could show cause and prejudice as contemplated in Martinez v. Ryan, 132 S.Ct. 1309 (2012). (SUMF ¶ 21 (citing Doc. 156 at 4-6).) In reaching this conclusion, Judge Brady stated the following:

As for how he will prove cause, Wessinger claims his initial-review counsel, Mr. Gisleson, was ineffective during this proceeding because he failed to properly present the ineffective assistance at trial claim in the state court. Gisleson agrees that his performance was deficient, but only because he repeatedly was denied funds and time to properly investigate these claims. There is case law supporting this ineffectiveness through denial of funds theory. See Gary v. Hall, 558 F.3d 1229, 1251-1253 (11th Cir. 2009); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985). The Court finds there are questions of law and fact as to whether this theory applies in this case.

(Doc. 156 at 5.) Judge Brady ordered that the Court would handle both inquiries - initial-review counsel's ineffectiveness and trial counsel's penalty phase ineffectiveness - at one hearing. (SUMF ¶ 21 (citing Doc. 156 at 6).)

         A federal evidentiary hearing was held before Judge Brady on January 12-13, 2015; and March 18-19, and 23, 2015. (SUMF ¶ 22.) Petitioner presented the testimony, along with supporting documentation, of pro bono state post-conviction counsel Soren Gisleson; Louisiana state post-conviction expert Gary Clements, Director of CPCPL; Wessinger family members and friends Joseph Kelly, Troy Wessinger, Leroy Helire, Jr., John Williams, Demetric Alexander, and Sharon Alexander; neuropsychatrist Dr. George Woods; mitigation expert Russell Stetler; and capital defense expert Baton Rouge attorney Michele Fournet. (SUMF ¶ 22.) Respondent did not present any witnesses. (SUMF ¶ 22.)

         On July 27, 2015, Judge Brady issued an order granting Petitioner's claim for habeas relief based on Claim XI-C (ineffective assistance of trial counsel at the penalty phase in violation of the Sixth Amendment). (Doc. 216 at 15.) Judge Brady first found:

Both experts [who testified at the hearing], Mr. Stetler and Mr. Clements, emphasized the importance of conducting a mitigation investigation, either with the aid of a mitigation specialist or by counsel conducting an investigation beyond the trial court record. It is undisputed that Mr. Gisleson conducted no investigation into mitigation evidence and did not hire a mitigation specialist during his time as counsel for Petitioner's post-conviction proceedings. Mr. Gisleson may have preserved the claim of ineffective assistance of trial counsel at the penalty phase simply by asserting it in his various amended petitions, but his failure to conduct mitigation investigation prevented him from providing any support for these claims. This lack of a mitigation investigation to even determine the merit of Petitioner's claim of ineffective assistance of trial counsel at the penalty phase is below the standard for capital post-conviction proceedings. Under the guidance of the Fifth Circuit in Canales v. Stephens, 765 F.3d 551, 569 (5th Cir. 2014), this Court finds that Petitioner's state initial-review counsel's performance fell below an “objective standard of reasonableness” by failing to conduct any mitigation investigation, particularly when the underlying claim is one of ineffective assistance of trial counsel at the penalty phase.

(Doc. 216 at 7.) Turning to the issue of whether “the underlying claim [was] a ‘substantial claim of ineffective assistance at trial[, ]' Martinez, 132 S.Ct. at 1320, ” (Doc. 216 at 7), Judge Brady concluded, “Based on what Mr. Hecker's acknowledged shortcomings in preparing for the penalty phase of Petitioner's trial, this Court finds that the underlying ineffective assistance of counsel at the penalty phase claim has merit and satisfies the ‘substantial' element of Martinez.” (Doc. 216 at 9.) Judge Brady then concluded:

This Court has determined that IRC was ineffective in pursuing a substantial claim. Therefore, Martinez provides the equitable remedy of having the “cause” element under Coleman satisfied. The Court next asks whether Petitioner can demonstrate “actual prejudice” as a result of IRC's failure to exhaust the substantial underlying claim. Coleman [v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2565 (1991)]. With regard to the initial review proceeding, it is clear that Mr. Gisleson's ineffectiveness in failing to conduct any mitigation investigation caused actual prejudice to Petitioner's habeas claim of ineffective assistance of trial counsel at the penalty phase.

(Doc. 216 at 9.)

         Judge Brady next explained that “[t]he equitable holding of Martinez does not decide Petitioner's underlying claim for habeas relief. Instead, in the interest of equity, it allows this federal habeas court to consider a federal habeas claim that would have otherwise been procedurally defaulted.” (Doc. 216 at 9.) Judge Brady next analyzed Mr. Heckler's performance and concluded:

Mr. Hecker's did not conduct a mitigation investigation. He did not provide anything more than a large number of unprepared witnesses at the penalty phase of trial. None of this was done as part of any strategy according to Mr. Hecker. Mr. Hecker's representation of Petitioner at the penalty phase was deficient and fell below the objectively reasonable norms of capital counsel at a penalty phase.

(Doc. 216 at 12.)

         Judge Brady then addressed whether “Mr. Hecker's deficient performance at the penalty phase of trial prejudiced Petitioner such that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' ” (Doc. 216 at 12 (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).) Judge Brady reviewed all of the witnesses presented at the hearing, almost all of whom had not been “previously contacted or interviewed regarding Petitioner for purposes of mitigation.” (Doc. 216 at 14.) Judge Brady concluded:

The question remains, had these witnesses been contacted and had a mitigation investigation been done to reveal these lay and expert opinions, is there a reasonable probability that the result of the sentencing proceeding would have been different? The Court does not consider the question before it lightly. After considering the mitigation evidence presented at the evidentiary hearing before us, which was not presented to the sentencing jury, this Court finds there is a reasonable probability that the evidence of Petitioner's brain ...

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