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Wessinger v. Vannoy

United States Court of Appeals, Fifth Circuit

July 20, 2017

TODD WESSINGER, Petitioner - Appellee Cross-Appellant
v.
DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent - Appellant Cross-Appellee

         Appeals from the United States District Court for the Middle District of Louisiana

          Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge

         The district court granted Todd Kelvin Wessinger's second amended petition for habeas corpus as to his claim for ineffective assistance of trial counsel at the penalty phase, vacating his death sentences and remanding the matter to state court for a new penalty phase trial. We REVERSE the district court's grant of habeas relief.

         I

         On November 19, 1995, Wessinger shot and killed Stephanie Guzzardo and David Breakwell while robbing Calendar's Restaurant in Baton Rouge, Louisiana. He also shot David Armentor twice in the back and attempted to shoot Alvin Ricks. Armentor survived his wounds, and Ricks was able to escape after Wessinger's gun would not fire. Wessinger stole approximately $7, 000 and then fled the scene.

         A jury convicted Wessinger of two counts of capital murder. The State presented the testimony of Armentor and Ricks, as well as that of four after-the-fact witnesses. Witnesses testified that Wessinger asked a friend to commit the robbery with him, that he confessed to committing the crime, and that he had large amounts of money after the robbery. The State also presented evidence that the murder weapon and a pair of gloves worn during the crime were discovered at an abandoned house across the street from Wessinger's residence. A witness testified that Wessinger asked him to take the murder weapon from the abandoned house.

         During the penalty phase of the trial, Wessinger's counsel presented multiple character witnesses and two experts. The jury sentenced Wessinger to death. Wessinger appealed his conviction and sentence, but the Louisiana Supreme Court affirmed both on direct appeal. The United States Supreme Court denied certiorari, Wessinger v. Louisiana, 528 U.S. 1050 (1999), as well as Wessinger's application for rehearing. Wessinger v. Louisiana, 528 U.S. 1145 (2000).

         After Wessinger's first pro bono post-conviction counsel withdrew, the Louisiana Supreme Court appointed Soren Gisleson as pro bono post-conviction counsel. Before his formal appointment, Gisleson filed a three-page "shell" petition for post-conviction relief to toll the one-year statute of limitations. The state post-conviction court gave Gisleson a 60-day extension to file an amended petition.

         Gisleson moved for "funding for any and all types of investigation." While the motion for funds was pending, he asked the Louisiana Indigent Defense Assistance Board ("LIDAB"), the Louisiana Crisis Assistance Center ("LCAC"), the East Baton Rouge Indigent Defense Board, and the Capital Post- Conviction Project of Louisiana ("CPCPL") for funding or assistance, but the organizations all denied his requests. CPCPL referred him to mitigation specialist Deanne Sandel. Sandel provided Gisleson with an affidavit regarding the time, ethical obligations, investigation, and assistance needed to represent Wessinger in the state post-conviction proceedings.

         The state post-conviction court denied his motion for funds. Gisleson moved to continue the deadline to file the amended petition. Although the state post-conviction court initially denied the motion, it eventually gave him a brief continuance. Gisleson obtained the files of Wessinger's previous counsel, the district attorney, and the police. He spoke with Wessinger's mother and brother "a couple times on the phone." Gisleson also visited and spoke with Wessinger. He determined from the files and from his conversations with Wessinger and his family that Wessinger potentially had a claim for ineffective assistance of trial counsel at the penalty phase.

         Gisleson then moved in the Louisiana Supreme Court to withdraw from representing Wessinger. Because the Louisiana Supreme Court did not respond to Gisleson's motion before the filing deadline set by the state post-conviction court, Gisleson drafted and filed Wessinger's first amended petition for post-conviction relief. The first amended petition was 136 pages, not including any attachments. Gisleson modelled the first amended petition on a form template he received from LCAC, and he included "a couple of discrete facts" from "the file or from general conversations with [Wessinger's] mother" as well as from the state court trial record. Gisleson included in Wessinger's first amended petition a claim for ineffective assistance of trial counsel at the penalty phase, among other claims.

         The State opposed Wessinger's petition, and Gisleson realized that the Louisiana Supreme Court denied his motion to withdraw. The state post-conviction court referred the matter to a commissioner. While the matter was pending, Gisleson again reached out to various organizations for funding and assistance. He was eventually referred to Danalynn Recer of the Gulf Regional Advocacy Center ("GRAC"), who "offered to provide general assistance for" $5, 000.[1] Gisleson secured payment of Recer's fee from his law firm.

         The commissioner's report recommended that the state post-conviction court deny Wessinger's first amended petition. With Recer's assistance, Gisleson then filed a second amended petition for post-conviction relief, which was 100 pages long and reflected "[a]ny and all assistance [he] would have received from GRAC, [and] any perceived factual development they would have created and would have assisted and sent to [him]." Among other things, the second amended petition "added some discrete allegations concerning mitigation and [ineffective assistance of counsel] in the [penalty] phase." For example, the second amended petition alleged that Wessinger's trial counsel did not "conduct professional/effective investigation in ...


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