IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70027

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 

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2017

Lyle W. Cayce

Clerk

 Case: 15-70027 Document: 00514082668 Page: 1 Date Filed: 07/20/2017
No. 15-70027

2

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 afterthe-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 postconviction 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-

 Case: 15-70027 Document: 00514082668 Page: 2 Date Filed: 07/20/2017
No. 15-70027

3

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 postconviction 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 postconviction court referred the matter to a commissioner. While the matter was 

 Case: 15-70027 Document: 00514082668 Page: 3 Date Filed: 07/20/2017
No. 15-70027

4

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 mitigation” because he 

failed to “adequately explore [Wessinger’s] medical history” or introduce 

evidence of Wessinger’s substance abuse, among other things. 

The state post-conviction court dismissed Wessinger’s first amended 

petition as procedurally barred and his second amended petition on the merits. 

The Louisiana Supreme Court affirmed without reasons the state postconviction court’s denial of relief. Gisleson then filed an application for a writ 

of habeas corpus in federal district court on behalf of Wessinger, asserting a 

claim for ineffective assistance of trial counsel at the penalty phase of trial, 

among other claims. 

The district court appointed Gisleson and Recer as federal habeas 

counsel for Wessinger. Gisleson filed motions for expert funds and for funds for 

a mitigation specialist, which the district court granted. Wessinger twice 

 

1 Both Recer and Gisleson are listed as counsel in Wessinger’s brief before this court.

 Case: 15-70027 Document: 00514082668 Page: 4 Date Filed: 07/20/2017
No. 15-70027

5

amended his petition, filing his second amended petition over six years after 

filing his initial federal habeas petition. 

The district court initially denied all claims. Wessinger then moved to 

alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e).

The district court granted Wessinger’s motion as to Wessinger’s claim for 

ineffective assistance of trial counsel at the penalty phase2 and subsequently 

granted habeas relief, holding that penalty phase counsel was ineffective and 

that Gisleson was ineffective on initial review. The State appealed. Among 

other things, the State argues that the district court erred in determining that 

Gisleson’s initial-review representation of Wessinger was ineffective.

II

“In a habeas corpus appeal, we review the district court’s findings of fact 

for clear error and its conclusions of law de novo . . . .” Lewis v. Thaler, 701 

F.3d 783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th 

Cir. 2004)). Whether counsel was ineffective “is a mixed question of law and 

fact.” Strickland v. Washington, 466 U.S. 668, 698 (1984).

III

The State raises several arguments on appeal. Because we conclude that 

the district court erroneously determined that Gisleson’s initial-review

representation of Wessinger was deficient, we address only that argument. 

To determine whether initial-review counsel was ineffective, we apply 

the familiar Strickland test. See Newbury v. Stephens, 756 F.3d 850, 871–72 

(5th Cir. 2014) (per curiam) (citing Strickland, 466 U.S. at 687). A petitioner 

 

2 The district court denied Wessinger’s Rule 59(e) motion as to his claims of ineffective 

assistance of trial counsel during voir dire, ineffective assistance of trial counsel at the guilt 

phase, and suppression of material evidence in violation of Brady v. Maryland, 373 U.S. 83 

(1963). On a separate docket, Wessinger seeks certificates of appealability to appeal the 

district court’s denial of those claims. 

 Case: 15-70027 Document: 00514082668 Page: 5 Date Filed: 07/20/2017
No. 15-70027

6

seeking to establish ineffective assistance of state habeas counsel must show 

both that counsel’s performance was deficient and that the deficient 

performance prejudiced the defense. Id. 

“[T]he performance inquiry [is] whether counsel’s assistance was 

reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. 

“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 

689. “A fair assessment of attorney performance requires that every effort be 

made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct 

from counsel’s perspective at the time.” Id.

As to the prejudice inquiry, the petitioner must show that the “particular 

errors of counsel [that] were unreasonable . . . actually had an adverse effect 

on the defense.” Id. at 693. To demonstrate that state habeas counsel was 

ineffective, a petitioner must demonstrate that “there is a reasonable 

probability that he would have been granted state habeas relief” if not for

counsel’s deficiency. Newbury, 756 F.3d at 871–72. “The likelihood of a 

different result must be substantial, not just conceivable.” Harrington v. 

Richter, 562 U.S. 86, 112 (2011).

The district court found that Gisleson’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.” The district court determined 

that Gisleson was deficient because he did not “hire a mitigation specialist to 

do a social history or mitigation investigation,” “conduct [his] own mitigation 

investigation,” or “consult any mental health experts or any other experts.” The 

district court relied on the testimony of two experts, who testified that Gisleson 

“did not perform the thorough mitigation investigation required under 

 Case: 15-70027 Document: 00514082668 Page: 6 Date Filed: 07/20/2017
No. 15-70027

7

professional norms” and that a death penalty team should “include[] two 

attorneys, . . . a mitigation specialist, and a paralegal.” 

We hold that the district court erred. “[C]onsidering all the 

circumstances” and “evaluat[ing] the conduct from [Gisleson’s] perspective at 

the time,” as we must, we conclude that Gisleson’s performance in raising and 

developing Wessinger’s claim for ineffective assistance of trial counsel at the 

penalty phase was not deficient. Strickland, 466 U.S. at 688–89. 

Wessinger argues that his initial-review counsel was deficient because 

he “fail[ed] to raise the claim of ineffective assistance of trial counsel at the 

penalty phase . . . [that was] raised by Wessinger in federal habeas.” But it is 

clear that Gisleson raised Wessinger’s claim for ineffective assistance of trial 

counsel at the penalty phase during the state post-conviction proceedings. The 

district court acknowledged that Gisleson “preserved the claim.” Gisleson filed 

two separate amended petitions for post-conviction relief. The second amended 

petition, on which the state post-conviction court ultimately ruled on the 

merits, asserted Wessinger’s claim for ineffective assistance of trial counsel at

the penalty phase and made specific factual allegations, including that trial 

counsel did not obtain Wessinger’s medical records. The second amended 

petition also alleged, among other things, that: Wessinger had a history of head 

trauma and childhood seizures; he lost two children; he suffered 

psychologically when he lost three friends to murder as a teenager or young 

adult; and his sister had seizures and cerebral palsy. 

The district court’s decision instead focused on Gisleson’s “failure to 

conduct mitigation investigation [which] prevented him from providing any 

support” for Wessinger’s claim for ineffective assistance of counsel at the 

penalty phase. We disagree. The state post-conviction court denied Gisleson’s 

motion for funds “for any and all types of investigation.” Gisleson also 

repeatedly reached out to various organizations for funding or assistance, and 

 Case: 15-70027 Document: 00514082668 Page: 7 Date Filed: 07/20/2017
No. 15-70027

8

he was repeatedly denied. Gisleson did not hire a mitigation specialist or 

consult experts because the state post-conviction court did not grant his motion 

for funds, not because of any deficiency on Gisleson’s part. He was thorough in 

his attempt to secure funds or other assistance, and ultimately he managed to 

secure $5,000 from his firm, which he paid to Recer for her help investigating 

and filing the second amended petition. 

Wessinger previously acknowledged to the district court that he did not 

develop evidentiary support for his claim during state post-conviction 

proceedings because of decisions by the state post-conviction court, not because 

Gisleson was deficient. He argued in his initial federal habeas petition that

“Wessinger did not fail to develop the factual basis” of his claim in state court 

but rather that “the state court failed to grant . . . Wessinger a forum to 

develop the factual record in post-conviction proceedings.” Wessinger asserted 

that he—represented by Gisleson—“diligently requested a hearing on every 

single claim.” According to Wessinger, “[h]e not only requested a hearing, but 

he also submitted extensive medical records and affidavits that supported the 

necessity of a hearing in state court to factually develop his claims.” Wessinger 

reasserted this argument in his first amended federal habeas petition, arguing

that he “was not allowed to factually develop his claims in state court through 

no fault of his own.” Gisleson “requested a hearing, discovery and funds, all of 

which were denied.” 

Even after the evidentiary hearing, Wessinger argued that Gisleson did 

not develop the claim in state court “because of lack of money, lack of expertise, 

lack of help, lack of experience and lack of time.” Wessinger has not 

demonstrated that a more experienced attorney would have obtained funding, 

assistance, or additional time from the state post-conviction court. That 

Wessinger did not present evidentiary support of his claim to the state postconviction court is not attributable to Gisleson’s inexperience or any particular 

 Case: 15-70027 Document: 00514082668 Page: 8 Date Filed: 07/20/2017
No. 15-70027

9

error, but rather to the state post-conviction court’s decisions to deny a hearing, 

discovery, and funds—decisions which are entitled to deference and which 

Wessinger does not challenge before this court. 

Gisleson’s performance in raising and developing Wessinger’s claim for 

ineffective assistance of trial counsel at the penalty phase was not deficient.

Furthermore, Wessinger failed to satisfy the prejudice inquiry, as he cannot 

show Gisleson’s particular unreasonable errors, rather than decisions by the 

state post-conviction court, “actually had an adverse effect on the defense.” 

Strickland, 466 U.S. at 693. The district court therefore erred in concluding 

that Wessinger’s initial-review counsel was ineffective. 

IV

We REVERSE the district court’s grant of habeas relief.

 Case: 15-70027 Document: 00514082668 Page: 9 Date Filed: 07/20/2017
No. 15-70027

10

JAMES L. DENNIS, Circuit Judge, dissenting:

If Todd Wessinger’s state habeas counsel had performed in the way that 

the majority opinion describes, I would join in reversing the judgment of the 

district court. But the evidence presented to the district court paints an 

entirely different picture. As the majority opinion notes, counsel filed a motion 

to withdraw as counsel shortly before he submitted the first amended petition. 

What the majority opinion fails to acknowledge is that eighteen months elapsed 

before counsel was informed that his motion had been denied and that during 

those eighteen months counsel never bothered to determine the status of his 

motion: inexplicably assuming that his duties had ended the moment he filed 

his motion with the Louisiana Supreme Court, counsel walked away from 

Wessinger’s case and did not look back. 

I agree with the majority opinion that some of counsel’s omissions were 

the result of the state post-conviction court’s decisions to deny a hearing, 

discovery, and funds. But these omissions were necessarily exacerbated by his 

total abandonment of the case for eighteen months. Had counsel acted with 

minimal diligence and learned that he had not been permitted to withdraw, 

there is much he could, and should, have done to advance his client’s cause. 

Crucially, as the district court noted, he should have conducted his own 

mitigation research. Counsel testified that he knew that further mitigation 

investigation was necessary, but he failed to do the work that he could have 

done himself, such as interviewing known witnesses and family members and 

reviewing medical and school records. Beyond the intrinsic value of what this 

evidence would have revealed, his research would have placed his requests for 

funding and mitigation assistance on substantially stronger ground. 

Wessinger’s state habeas counsel did not make a strategic choice not to 

conduct his own mitigation investigation; nor was his course of conduct 

 Case: 15-70027 Document: 00514082668 Page: 10 Date Filed: 07/20/2017
No. 15-70027

11

mandated by state court decisions, as the majority opinion wrongly asserts. 

Instead, counsel’s failure to pursue a thorough mitigation investigation was 

traceable to his unexplainable failure to check on the status of his motion to 

withdraw or otherwise engage in any way with the case after he filed the first 

amended petition, in violation of all professional standards. See Maples v. 

Thomas, 565 U.S. 266, 284–85 (2010); La. Rules of Prof’l Conduct R. 1.16 (1987) 

(repealed 2004). The majority opinion’s omission of any reference to what was 

counsel’s most critical failure renders its conclusions meaningless. I believe 

that counsel’s abandonment of his client’s case for eighteen months rendered 

his performance constitutionally deficient.

Because the majority opinion does not address the state’s remaining 

challenges to the district court’s grant of relief, I will not discuss the merits of 

those challenges here. However, I believe that the district court’s judgment is 

sound, and I would affirm its grant of relief. I therefore respectfully dissent.

 Case: 15-70027 Document: 00514082668 Page: 11 Date Filed: 07/20/2017