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Gissendaner v. Commissioner, Georgia Department of Corrections

United States Court of Appeals, Eleventh Circuit

July 24, 2015

KELLY RENEE GISSENDANER, Plaintiff-Appellant,
v.
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, Defendants-Appellees

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:15-cv-00610-TWT.

For Kelly Renee Gissendaner, Plaintiff - Appellant: Lindsay Bennett, Federal Defender Program, Inc., Sacramento, CA; Susan C. Casey, Michael Kennedy McIntyre & Associates, Atlanta, GA.

For Commissioner, Georgia Department of Corrections, Warden, Defendants - Appellees: Sabrina Graham, Beth Attaway Burton, Attorney General's Office, Atlanta, GA.

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

OPINION

Page 1328

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 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, 272 Ga. 704, 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 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

Page 1329

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 ...

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