Wessinger v. Vannoy ( 2018 )

Cite as: 583 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
TODD WESSINGER v. DARREL VANNOY, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 17–6844. Decided March 5, 2018
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, dissenting from the denial of
certiorari.
Petitioner Todd Wessinger was sentenced to death by a
jury that was never presented with significant mitigation
evidence that may have convinced its members to spare
his life. For instance, Wessinger suffers from a major
neurocognitive disorder that compromises his decision-
making abilities. As a child, he experienced a stroke in
his left frontal lobe that affected how the left and right
sides of his brain communicate. He also suffered from
childhood seizures, and he has a hole in the area of his
brain associated with executive functioning that resulted
from some form of cerebrovascular illness.
The jury never considered this evidence at sentencing,
or other mitigation about Wessinger’s family history of
poverty, alcoholism, and domestic violence, because Wes­
singer’s trial counsel did not attempt to discover it.* Wes­
singer’s attorneys on postconviction review similarly failed
to conduct any mitigation investigation in preparation for
his state habeas petition.
The first postconviction counsel to represent Wessinger
suffered a mental breakdown and did no work on his
——————
* Wessinger’s conviction and sentence were affirmed on direct appeal
without consideration of any ineffective-assistance-of-counsel claim
because, in Louisiana, such claims are “customarily addressed in
post-conviction proceedings, not on direct appeal.” State v. Wessinger,
98–1234 (La. 5/28/99), 736 So. 2d 162, 195.
2 WESSINGER v. VANNOY
SOTOMAYOR, J., dissenting
petition. The second attorney was highly inexperienced
and had to put together a petition on a compressed time-
line. He filed a shell petition to meet the 1-year filing
deadline, but failed to immediately seek funding to sup­
port a mitigation investigation. See Record in No. 15–
70027 (CA5), Doc. 513312967, p. 138 (Record Doc.). He
subsequently attempted to rectify that error to no avail.
The court viewed his requests as delaying the case and as
not sufficiently supported by facts. See id., at 142–144.
Counsel proceeded to file an amended petition based only
on the limited facts developed in the trial record. Appar­
ently recognizing his limitations, he then sought to with­
draw from representation; but it was not until he received
the State’s opposition to the petition 18 months after filing
the motion to withdraw that he realized the motion had
been denied. Having done no work during the interim
period, he pulled together a second amended petition that
added discrete allegations regarding the penalty phase
portion of the capital proceedings but that still were based
only on the deficient trial court record. His efforts were
too little, too late. Counsel had pursued no mitigation
investigation, and the state court denied postconviction
relief.
On federal habeas review, the District Court granted
Wessinger’s 28 U. S. C. §2254 petition on the basis that
both trial counsel’s and postconviction counsel’s failure to
investigate mitigation evidence constituted ineffective
assistance of counsel under Strickland v. Washington, 466
U. S. 668 (1984). A panel majority of the Court of Appeals
for the Fifth Circuit reversed. 864 F. 3d 387 (2017). The
panel concluded that Wessinger had not received inef-
fective assistance of counsel during the postconviction
proceedings, and was therefore barred from raising his
ineffective-assistance-of-trial-counsel claim in federal court.
See Martinez v. Ryan, 566 U. S. 1, 17 (2012). That conclu­
sion is clearly wrong.
Cite as: 583 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
This Court repeatedly has held that the failure to per­
form mitigation investigation constitutes deficient perfor­
mance. See, e.g., Williams v. Taylor, 529 U. S. 362, 396
(2000) (finding deficiency where “counsel did not fulfill
their obligation to conduct a thorough investigation of the
defendant’s background”); Porter v. McCollum, 558 U. S.
30, 40 (2009) (per curiam) (“The decision not to investigate
did not reflect reasonable professional judgment”). There
is nothing about the facts of this case that calls for a dif­
ferent conclusion.
The Fifth Circuit panel majority does not dispute the
District Court’s finding that the attorney who filed Wes­
singer’s state habeas petitions “did no investigation” into
mitigation. Wessinger v. Cain, 2015 WL 4527245, *2 (MD
La., July 27, 2015). It does not disagree with the District
Court’s findings that counsel “did not obtain any medical
records, school records, employment records or family
history records,” or that he did not “conduct interviews of
any witnesses, friends, teachers, coaches, or family mem­
bers” regarding potential mitigating factors, aside from
having a couple brief conversations with Wessinger’s
mother and brother. Ibid.Even more striking, the panel majority does not
acknowledge that counsel did absolutely nothing on Wes­
singer’s case for a period of at least 18 months after filing
the first amended petition.
Despite these blatant shortcomings, the panel majority
found that the failure to conduct any mitigation research
was not a result of deficient performance, but a product of
the state postconviction court’s denial of funding for a
mitigation investigation. As the record demonstrates,
however, the denial of funds resulted at least in significant
part from counsel’s deficiencies: Wessinger’s first counsel
did nothing on his case; his second counsel delayed in
requesting funds immediately upon taking the case; and,
when counsel ultimately made the requests, the court
4 WESSINGER v. VANNOY
SOTOMAYOR, J., dissenting
viewed them as unsupported by any facts. See Record
Doc., at 138–139, 142–144.
More important, as noted by the Fifth Circuit panel
dissent, the denial of funds does not excuse counsel’s
failure to perform any independent mitigation investiga­
tion. 864 F. 3d, at 393 (opinion of Dennis, J.). In fact,
conducting such an investigation may have placed the
requests for funding on substantially stronger ground.
The denial of funds also does not explain or justify coun­
sel’s complete abandonment of the case for 1½ years.
The Court’s denial of certiorari here belies the “bedrock
principle in our justice system” that a defendant has a
right to effective assistance of trial counsel, and under­
mines the protections this Court has recognized are neces­
sary to protect that right. Martinez, 566 U. S., at 12.
Indeed, the investigation of mitigation evidence and its
presentation at sentencing are crucial to maintaining the
integrity of capital proceedings. The layers of ineffective
assistance of counsel that Wessinger received constitute
precisely the type of error that warrants relief under this
Court’s precedent. Yet, Wessinger will remain on death
row without a jury ever considering the significant mitiga­
tion evidence that is now apparent. Because that outcome
is contrary to precedent and deeply unjust and unfair, I
dissent from the denial of certiorari.