[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-10884

Non-Argument Calendar

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D.C. Docket No. 1:15-cv-00610-TWT

KELLY RENEE GISSENDANER, 

 Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, 

WARDEN, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(July 24, 2015)

Before ED CARNES, Chief Judge, TJFOLAT and JORDAN, Circuit Judges.

ED CARNES, Chief Judge: 

Kelly Gissendaner, a Georgia death row inmate, appeals the district court’s 

dismissal of her 42 U.S.C. § 1983 complaint. Her complaint alleges that her 

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federal due process rights were violated when the warden of the prison where she 

was housed ordered the prison staff not to speak with Gissendaner’s legal team as 

they were gathering evidence in support of her application for clemency.

I.

Gissendaner was convicted of malice murder and sentenced to death for 

masterminding the brutal murder of her husband. See Gissendaner v. State, 532 

S.E.2d 677, 681–83 (Ga. 2000). She tried (and failed) in state and federal court to 

challenge her conviction and sentence.

1 On February 9, 2015, the Superior Court 

of Gwinnett County issued an order directing the Georgia Department of 

Corrections to execute Gissendaner. The order created a seven-day window for the 

execution, lasting from February 25 to March 4, 2015. See Ga. Code § 17-10-

40(b). The original execution date was set for February 25. 

Anticipating that an execution date would be set in early 2015, 

Gissendaner’s legal team (which included both her attorneys and an investigator 

working on her behalf) had begun in late 2014 to prepare an application for state 

clemency. Her application would be heard by the State Board of Pardons and 

Paroles, which has the power to grant executive clemency to the State’s prisoners. 

Ga. Const. art. IV, § 2(2); see Ga. Code § 42-9-1 et seq. As part of their 

 1 Those challenges are set out in Gissendaner v. Seaboldt, 735 F.3d 1311 (11th Cir. 2013); 

Gissendaner v. State, 532 S.E.2d 677 (Ga. 2000); and Gissendaner v. State, 500 S.E.2d 577 (Ga. 

1998).

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preparations, Gissendaner’s legal team interviewed a number of the staff working 

at Lee Arrendale State Prison and Metro State Prison. Arrendale is the prison 

where Gissendaner is currently housed, and Metro is the prison where Gissendaner 

was previously housed. Early on, four Arrendale staff members provided her legal 

team with written statements in support of Gissendaner. 

Eight other staff members at Arrendale and Metro expressed a willingness to

support Gissendaner — either through written statements or testimony at the 

clemency hearing. Those eight staff members, however, changed their mind after 

the warden at Arrendale, Kathleen Kennedy, issued a memo in January 2015 to all 

prison staff.2

 The memo was titled “Public Information / Media Contact” and 

stated: 

An execution date might be scheduled in the immediate future for 

our inmate under death sentence. This action will likely bring a lot of 

publicity to [Arrendale]. 

Be advised that if ANYONE calls you with questions regarding 

this issue, you are to refer them to the DOC Public Affairs office . . . .

Under no circumstances are you to discuss this with people outside 

this institution. Staff should also be careful what is said to other 

inmates and personal feelings are to be suppressed. If you have 

questions or concerns, please contact Warden Kennedy or Deputy 

Warden Tatum.

 2 It is not clear whether the memo went to just Arrendale staff members or to Metro staff 

members as well. We will assume it went to both. See Arthur v. King, 500 F.3d 1335, 1339 

(11th Cir. 2007) (explaining that, in an appeal from a Rule 12(b)(6) dismissal, we must “accept[] 

the complaint’s allegations as true and constru[e] them in the light most favorable to the 

plaintiff”).

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After receiving the memo, the eight staff members withdrew their commitments to 

offer statements or testimony supporting Gissendaner. And when Gissendaner’s 

legal team approached other staff members at the prisons about her clemency 

proceedings, the staff members refused to testify or provide written statements. 

Some of the staff members told Gissendaner’s investigator that “they could not 

help based on a [Department of Corrections] directive and, further, that they feared 

that if they did, their jobs would be at stake.” 

Gissendaner filed her application for clemency on February 20, 2015, and 

the Board notified her that it would hold a hearing on her application on February 

24. At the hearing, Gissendaner’s attorneys appeared on her behalf and presented

testimony from fifteen witnesses plus thirteen written statements of support from 

current and former staff members at Arrendale and Metro, as well as other 

evidence. Of the fifteen witnesses to actually testify on her behalf at the hearing, 

the only one who was a staff member at the time of the hearing was Chaplain 

Susan Bishop of Arrendale. The four Arrendale staff members who had submitted 

written statements before Warden Kennedy issued her memo did not withdraw 

their statements, and those four written statements were presented to the Board at 

the hearing. 

The morning after the hearing, the Board denied Gissendaner’s application 

for clemency. At the time, her execution was still scheduled for that evening. A

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few hours after the Board’s decision, however, predictions of inclement weather 

led the State to postpone the execution until 7:00 p.m. ET on March 2, 2015, which 

was five days away. 

The day before her rescheduled execution was to take place, Gissendaner 

obtained a copy of Warden Kennedy’s memo. The next day, the day she was 

rescheduled to be executed, Gissendaner filed a 42 U.S.C. § 1983 lawsuit claiming 

that her due process rights had been violated because the warden’s memo had

interfered with her ability to obtain and present evidence in support of her 

application for clemency. Because her rescheduled execution was only hours 

away, she also filed motions for a preliminary injunction and for a stay of

execution. That same day, the State moved to dismiss Gissendaner’s complaint, 

and the district court held a hearing on the various motions. After the hearing, the 

district court issued an order denying Gissendaner’s motions and granting the 

State’s motion to dismiss her complaint. Even though it denied her motions for an 

indefinite stay and an injunction, the court granted Gissendaner a 24-hour stay so 

that this Court could hear her appeal. 

That evening both parties filed notices of appeal. Gissendaner’s appeal 

challenged the dismissal of her complaint and the denial of her motions for a stay 

and a preliminary injunction. The State’s appeal challenged the district court’s 24-

hour stay. This Court issued an order in the State’s appeal dissolving the 24-hour

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stay because, based on our review of the record and the parties’ submissions, we 

did not need any more time to conclude that Gissendaner had not demonstrated the 

substantial likelihood of success on the merits required to justify a stay. Our order 

allowed the State to proceed with the execution, but around 10:20 p.m. the State 

postponed the execution because of concerns about the condition of the drugs that 

were to be used in the execution. Two days later, we ordered that the State’s 

appeal be closed because it had already received the relief it sought in that appeal 

— vacatur of the 24-hour stay. 

This is Gissendaner’s appeal from the order dismissing her complaint.3

II.

“We review a district court’s dismissal under Rule 12(b)(6) for failure to 

state a claim de novo, accepting the complaint’s allegations as true and construing 

them in the light most favorable to the plaintiff.” Arthur, 500 F.3d at 1339.

Gissendaner contends that her complaint states a claim for relief under the 

Due Process Clause. See U.S. Const. Amend. XIV, § 1. In her view, the Clause 

“demands that a prisoner seeking clemency must receive the process that the state 

has established for all clemency petitioners.” She points to the version of Georgia 

Code § 42-9-43 in force at the time of her hearing, which instructs the Board to 

 3 Though her notice of appeal refers to the denial of her motions for a stay and for a 

preliminary injunction, Gissendaner’s brief challenges only the dismissal of her complaint. In 

any event, our decision that the complaint fails to state a claim for relief moots any issues 

regarding a stay or a preliminary injunction. See Arthur, 500 F.3d at 1344.

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“cause to be brought before it all pertinent information on the person in question” 

when considering an application for clemency.4

 See Ga. Code § 42-9-43(a). From 

there, she argues that Warden Kennedy’s memo interfered with the procedure 

created by § 42-9-43 — and thereby violated her due process rights — because the 

memo prevented her from obtaining pertinent evidence and presenting it to the 

Board. But the procedural component of the Due Process Clause does not require 

the States to comply with state-created procedural rules. Instead, it requires them

to adhere to a certain minimal level of process when seeking to deprive an 

individual of a substantive interest protected by the Clause — namely, “life, 

liberty, or property.” U.S. Const. Amend. XIV, § 1.

A.

The Supreme Court’s decision in Ohio Adult Parole Authority v. Woodard,

523 U.S. 272, 118 S. Ct. 1244 (1998), did recognize a due process interest in the 

context of state clemency proceedings for death row inmates. The holding in that 

case was provided by Justice O’Connor’s concurring opinion. Wellons v. 

Comm’r, Ga. Dep’t of Corr., 754 F.3d 1268, 1269 n.2 (11th Cir. 2014) 

(recognizing Justice O’Connor’s concurring opinion as “set[ting] binding 

 4 Since the Board’s decision on Gissendaner’s application, Georgia Code § 42-9-43 has been 

amended to include two additional categories of “pertinent information” that the Board must 

“cause to be brought before it.” Compare 2015 Ga. Laws Act 43, § 4 (eff. July 1, 2015) 

(identifying eight categories of “pertinent information”), with 2013 Ga. Laws 222, 242 § 19 

(identifying six categories of “pertinent information”). We discuss the version in force at the 

time of the Board’s decision. 

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precedent”). Her opinion acknowledges that the “life” interest protected by the 

Due Process Clause itself guarantees “some minimal procedural safeguards” for 

state clemency proceedings involving death row inmates. Woodard, 523 U.S. at

289, 118 S. Ct. at 1254 (O’Connor, J., concurring).

The key word here is “minimal.” Justice O’Connor’s opinion concludes that 

the prisoner in Woodard had received adequate process despite the fact that he was 

given only a few days notice of his hearing, that he was interviewed by the parole 

board without his attorney present, that his attorney was “permitted to participate 

in the hearing only at the discretion of the parole board chair,” and that the prisoner 

“was precluded from testifying or submitting documentary evidence at the 

hearing.” Id. at 289–90, 118 S. Ct. at 1254. That procedure, it was held, satisfied 

“whatever limitations the Due Process Clause may impose on clemency 

proceedings.”5 Id. at 290, 118 S. Ct. at 1254 (emphasis added). The only 

circumstances that Justice O’Connor’s opinion identifies in which due process 

would be offended are truly outrageous ones, such as (1) “a scheme whereby a 

 5 As a general rule, the two basic requirements of the Due Process Clause are notice and an 

opportunity to be heard prior to the deprivation of life, liberty, or property. See Texaco, Inc. v. 

Short, 454 U.S. 516, 534, 102 S. Ct. 781, 795 (1982) (“Many controversies have raged about the 

cryptic and abstract words of the Due Process Clause but there can be no doubt that at a 

minimum they require that deprivation of life, liberty or property by adjudication be preceded by 

notice and opportunity for hearing appropriate to the nature of the case.”) (quoting Mullane v. 

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656–57 (1950)); see 

generally Hon. Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267 (1975). But 

Justice O’Connor’s opinion in Woodard does not state that either of those requirements applies

to state clemency proceedings.

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state official flipped a coin to determine whether to grant clemency,” or (2) “a case 

where the State arbitrarily denied a prisoner any access to its clemency process.”

Id. at 289, 118 S. Ct. at 1254 (emphasis added). Outside of similarly “extreme 

situations,” the federal Due Process Clause does not justify judicial intervention 

into state clemency proceedings. Faulder v. Tex. Bd. of Pardons & Paroles, 178 

F.3d 343, 344 (5th Cir. 1999).

The process that Gissendaner received was at least equal to the process that 

passed constitutional muster in Woodard. The Board gave her notice of the 

hearing, permitted her to present favorable testimony from some fifteen witnesses, 

and allowed her to submit thirteen written statements from prison staff supporting

her application. That clearly satisfies “whatever limitations the Due Process 

Clause may impose on clemency proceedings.” Woodard, 523 U.S. at 290, 118 

S. Ct. at 1254 (O’Connor, J., concurring) (holding that “notice of the hearing and 

an opportunity to participate in an interview” was enough). 

Gissendaner latches onto a single phrase in Justice O’Connor’s concurring 

opinion to support the argument that her clemency proceeding was inadequate 

under Woodard. That phrase is “comports with Ohio’s regulations,” which is 

found in the following statement: “The process respondent received, including 

notice of the hearing and an opportunity to participate in an interview, comports 

with Ohio’s regulations and observes whatever limitations the Due Process Clause 

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may impose on clemency proceedings.” Id. Gissendaner argues that, because 

Warden Kennedy’s memo did not, in her view, comport with Georgia Code § 42-9-

43, her clemency proceeding did not meet the standard set by Woodard. Even 

assuming that the memo violated Georgia law,6 however, her argument fails. 

B.

For starters, Gissendaner’s argument is foreclosed by our decision in 

Wellons, 754 F.3d at 1269. Wellons involved another Georgia death row inmate’s

challenge to the constitutionality of his clemency proceedings. See id. The

prisoner asserted that, because of actions taken by Georgia prison officials, “at 

least one corrections officer employed at the Georgia Diagnostic and Classification 

Prison, who was previously willing to provide a statement in support of clemency 

on Wellons’s behalf, now refuses to do so for fear of losing his or her job.” Id.

Applying Woodard, we held that, given the “very limited due process interest in 

clemency proceedings,” the prisoner “ha[d] failed to show a substantial likelihood 

of success on his claim that he enjoys a due process or other Constitutional right 

 6 It is not at all clear that Gissendaner’s clemency proceeding violated Georgia Code § 42-9-

43 since the statute: (1) does not give a prisoner the right to interview prison staff and present 

their testimony to the Board; and (2) does not require the Board to interview prison staff 

members. The statute states: “The board, in considering any case within its power, shall cause 

to be brought before it all pertinent information on the person in question.” Ga. Code § 42-9-

43(a). But none of the six sources of “pertinent information” listed in § 42-9-43(a) at the time of 

Gissendaner’s clemency hearing include direct testimony or written statements from prison staff. 

See id. § 42-9-43(a)(1)–(6). The statute grants discretion to the Board — not a right to the 

prisoner — to supplement those six sources of information “as it may deem necessary.” Id. § 42-

9-43(c). So limiting Gissendaner’s access to prison staff does not appear to violate any of the 

statute’s requirements. But we will assume it does.

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with respect to his petition for clemency.” Wellons, 754 F.3d at 1269 (citing 

Woodard, 523 U.S. at 283–85, 118 S. Ct. at 1251 (opinion of Rehnquist, C.J.); id.

at 288–89, 118 S. Ct. at 1253 (O’Connor, J., concurring)). In other words, the Due 

Process Clause does not guarantee state prisoners a right to acquire and present 

testimony from prison staff in support of an application for clemency, nor does it 

bar state officials from limiting prisoners’ access to such testimony.

Gissendaner’s attempt to distinguish Wellons is unavailing. She points out 

that the prisoner in Wellons had presented “little evidence of interference beyond 

one employee’s independent recollection,” whereas she has presented a copy of 

Warden Kennedy’s memo and an affidavit showing that “several” prison staff 

members had understood the memo to mean that “speaking out on behalf of Ms. 

Gissendaner would place their jobs in peril.” That is a distinction, but it makes no 

difference. Wellons’ holding rested on the “very limited” nature of the “due 

process interest in clemency proceedings,” not on the factual support 

accompanying the prisoner’s complaint. 754 F.3d at 1269. And “the holding of 

the first panel to address an issue is the law of this Circuit, thereby binding all 

subsequent panels unless and until the first panel’s holding is overruled by the 

Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 

1292, 1300 n.8 (11th Cir. 2001). Wellons therefore controls the outcome here and 

dictates that we affirm the dismissal of the complaint. 

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C.

Even if Wellons were distinguishable, we would still reject Gissendaner’s 

reading of Woodard. Nothing in Justice O’Connor’s concurring opinion suggests 

that a clemency board’s compliance with state laws or procedures is part of the 

“minimal procedural safeguards” protected by the Due Process Clause. See

Woodard, 523 U.S. at 288–90, 118 S. Ct. at 1253–54 (O’Connor, J., concurring). 

It is a far cry from the denial of access circumstance the opinion describes where a 

due process violation “might” occur, which is “where the State arbitrarily denied a 

prisoner any access to its clemency process.”7 See id. at 289, 118 S. Ct. at 1254 

(emphasis added). Adopting Gissendaner’s reading of Justice O’Connor’s opinion 

would conflict with a long line of Supreme Court decisions holding that a violation 

of state procedural law does not itself give rise to a due process claim. See, e.g.,

Sandin v. Conner, 515 U.S. 472, 482, 115 S. Ct. 2293, 2299 (1995) (decrying the 

notion that a violation of state prison regulations provides a basis for a procedural 

due process claim because it “creates disincentives for States to codify prison 

management procedures”); Olim v. Wakinekona, 461 U.S. 238, 250–51, 103 S. Ct. 

 7 The same goes for our decision in Mann v. Palmer, 713 F.3d 1306 (11th Cir. 2013). We did 

say: “The process [Mann] received, including notice of the hearing and an opportunity to 

participate . . . comports with [Florida’s] regulations and observes whatever limitations the Due 

Process Clause may impose on clemency proceedings.” Id. at 1316–17 (alteration in original)

(quoting Woodard, 523 U.S. at 290, 118 S. Ct. at 1254 (O’Connor, J., concurring)). But we 

never held that the Due Process Clause requires Florida to comply with its own clemency 

procedures.

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1741, 1748 (1983) (explaining that “[p]rocess is not an end in itself” and holding 

that a State’s creation of administrative procedures “does not create an independent 

substantive right” under the Due Process Clause); cf. Snowden v. Hughes, 321 

U.S. 1, 11, 64 S. Ct. 397, 402 (1944) (“Mere violation of a state statute does not 

infringe the federal Constitution.”).

Finally, Gissendaner points us to a line of Eighth Circuit decisions, which 

interpreted Justice O’Connor’s concurring opinion in Woodard to mean that “[t]he 

Constitution of the United States does not require that a state have a clemency 

procedure, but . . . it does require that, if such a procedure is created, the state’s 

own officials refrain from frustrating it by threatening the job of a witness.” 

Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000); see Noel v. Norris, 336 F.3d 

648, 649 (8th Cir. 2003) (“[I]f the state actively interferes with a prisoner’s access 

to the very system that it has itself established for considering clemency petitions, 

due process is violated.”). But see Winfield v. Steele, 755 F.3d 629, 631–32 (8th 

Cir. 2014) (en banc) (Gruender, J., concurring) (arguing for the overruling of 

Young because it misinterpreted Woodard and “runs counter to the weight of 

authority from other courts”). That is essentially the same reading of Woodard that 

Gissendaner adopts. And like her reading, it cannot be squared with what Justice 

O’Connor’s opinion actually says or with the great run of Supreme Court decisions

refusing to transform violations of state law into federal due process claims.

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AFFIRMED.

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JORDAN, Circuit Judge, concurring:

I join all but Part II.C of the majority opinion and concur in the judgment. 

Ms. Gissendaner’s allegations do not state a due process claim given our 

interpretation in Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1268 (11th Cir. 

2014), of Justice O’Connor’s controlling opinion in Ohio Adult Parole Authority v. 

Woodard, 523 U.S. 272, 288-90 (1998) (O’Connor, J., concurring). Because I 

agree with the majority that Wellons governs, I do not think it is necessary to 

address how we would read Woodard if Wellons were distinguishable.

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