Todd Wessinger v. Darrel Vannoy, Warden, 2017 U.S. App. LEXIS 13104

Background

In 1995 Todd Wessinger committed two murders and related violent offenses; a jury convicted him of two counts of capital murder and sentenced him to death.
On direct appeal state and U.S. Supreme Court review were unsuccessful; Wessinger pursued state post-conviction relief and then federal habeas review.
Soren Gisleson served as appointed pro bono post-conviction (initial-review) counsel; he filed lengthy amended petitions raising an ineffective-assistance-of-trial-counsel claim for the penalty phase but did not conduct a full mitigation investigation or retain a mitigation specialist before state courts denied funding, hearings, and discovery.
The state post-conviction court dismissed petitions (procedural bar and merits); the Louisiana Supreme Court affirmed without reasons. Gisleson later served as federal habeas counsel with co-counsel Danalynn Recer assisting on investigation funded in part by Gisleson’s firm.
The district court granted habeas relief on the penalty-phase ineffective-assistance claim, finding Gisleson’s initial-review performance constitutionally deficient for failing to investigate mitigation; the State appealed.
The Fifth Circuit majority reversed, holding Gisleson’s initial-review performance was not deficient given the state court’s repeated denials of funds, hearings, and discovery; the dissent argued Gisleson abandoned the case for 18 months and thus was constitutionally deficient.

Issues

Issue	Plaintiff's Argument (Wessinger)	Defendant's Argument (State)	Held
Whether initial-review (state post-conviction) counsel rendered constitutionally ineffective assistance in failing to investigate mitigation for penalty-phase IAC claim	Gisleson failed to conduct mitigation investigation, hire a mitigation specialist, or consult experts, so his performance was objectively unreasonable	Gisleson pursued funding and assistance repeatedly; denials by the state court and agencies, not counsel’s choices, prevented development; he preserved and pleaded the claim	Reversed: counsel not deficient because he sought funds/assistance and state court decisions (denials) limited investigation
Whether counsel failed to raise/preserve the penalty-phase ineffective-assistance claim	Wessinger argued the claim was not developed in state court and counsel’s failures caused that	State argued the claim was raised and preserved in Gisleson’s amended petitions	Held for State on preservation: Gisleson raised and preserved the penalty-phase IAC claim in amended petitions
Whether state-court denials of funds/hearings/discovery excuse lack of evidentiary development	Wessinger contends lack of development resulted from counsel’s inexperience and failure	State asserts and majority agrees that the record shows repeated requests for funds/hearings were denied by state court/agencies, and counsel attempted to secure help	Held: The lack of development is attributable to state-court denials, not counsel’s deficient performance
Whether prejudice standard under Strickland/Newbury is met (reasonable probability of different result in state post-conviction)	Wessinger asserts prejudice because a fuller mitigation record would have supported relief	State argues petitioner cannot show a substantial likelihood that state habeas relief would have been granted absent counsel’s conduct	Held: Prejudice not shown; Wessinger failed to prove counsel’s errors (as opposed to state-court rulings) had an adverse effect sufficient to meet the standard

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance-of-counsel standard)
Harrington v. Richter, 562 U.S. 86 (requires substantial, not merely conceivable, likelihood of a different result)
Newbury v. Stephens, 756 F.3d 850 (5th Cir.) (applying Strickland to initial-review counsel in habeas context)
Maples v. Thomas, 565 U.S. 266 (discusses counsel abandonment and related due process/professional-ethics concerns)