and Submitted September 16, 2016 San Francisco, California
from the United States District Court for the District of
Nevada No. 3:94-cv-00459-RCJ, Robert Clive Jones, Senior
District Judge, Presiding
Richard Ellis (argued), Mill Valley, California, for
E. Wieland (argued), Senior Deputy Attorney General; Jeffrey
M. Conner, Assistant Solicitor General; Adam Paul Laxalt,
Attorney General; Office of the Attorney General, Carson
City, Nevada; for Respondent-Appellee.
Before: William A. Fletcher, Morgan Christen, and Michelle T.
Friedland, Circuit Judges.
AND AMENDED OPINION
Corpus / Death Penalty
panel filed an amended majority opinion and concurrence,
denied a petition for panel rehearing, and denied on behalf
of the court a petition for rehearing en banc, in Tracy
Petrocelli's appeal from the denial of his pre-AEDPA
habeas corpus petition challenging his Nevada state
conviction and capital sentence for robbery and first-degree
amended opinion, the panel affirmed the district court's
denial of the petition with respect to the conviction,
reversed the denial of the petition with respect to the death
sentence, and remanded.
panel held that because Petrocelli failed to invoke his right
to counsel unambiguously, his April 19 interrogation was not
conducted in violation of Miranda v. Arizona, 384
U.S. 436 (1966), or Edwards v. Arizona, 451 U.S. 477
(1981), and trial counsel was therefore not ineffective in
failing to move to suppress testimony as fruit of the
panel rejected Petrocelli's contention that use at trial
of his statements to detectives on April 20 and 27 violated
his Fifth, Sixth, and Fourteenth Amendment rights. Because
the State used the statements only for impeachment, the panel
rejected Petrocelli's contention that his Fifth and Sixth
Amendment rights were violated by the taking of his
statements during interrogations at which his appointed
counsel was not present. The panel rejected the
defendant's contention that his statements were
panel affirmed the district court's conclusion that
Petrocelli failed to exhaust his challenge to the jury
instruction defining premeditation and deliberation.
panel held that the State waived any defense to
Petrocelli's contention that the admission of psychiatric
testimony during the penalty phase violated his Fifth and
Sixth Amendment rights under Estelle v. Smith, 451
U.S. 454 (1981). The panel held that even if the State had
not waived its defense, admission of the testimony violated
Estelle, where the psychiatrist, acting at the
request of the prosecutor, visited Petrocelli in jail to
determine his competency to stand trial, failed to provide
Miranda warnings, did not seek or obtain permission
from Petrocelli's appointed counsel to visit or evaluate
him, and testified that Petrocelli was dangerous and
incurable. The panel concluded that the error was not
Judge Christen wrote separately because, in her view, even if
the State could show that the prosecutor's tactics had
not prejudiced the jury's verdict, Petrocelli's case
is one of the very few in which deliberate prosecutorial
misconduct and egregious trial errors warrant habeas relief.
majority opinion and concurrence filed on July 5, 2017, and
appearing at 862 F.3d 809, are hereby amended. An amended
majority opinion and concurrence are filed concurrently with
full court has been advised of the petition for rehearing en
banc, and no judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for
panel rehearing and rehearing en banc is DENIED. No new
Petition for Panel Rehearing or Petition for Rehearing en
Banc will be entertained.
FLETCHER, Circuit Judge
1982, Tracy Petrocelli was convicted and sentenced to death
in Nevada state court for the robbery and first-degree murder
of James Wilson, a Nevada used car salesman. Petrocelli filed
a federal petition for writ of habeas corpus before the
effective date of the Antiterrorism and Effective Death
Penalty Act ("AEDPA"). Petrocelli appeals the
district court's denial of the writ.
affirm the district court's denial of the writ with
respect to Petrocelli's conviction but reverse with
respect to his death sentence. We hold that admission of Dr.
Lynn Gerow's psychiatric testimony during the penalty
phase violated Petrocelli's Fifth and Sixth Amendment
rights under Estelle v. Smith, 451 U.S. 454 (1981),
and that the violation had a substantial and injurious effect
on the jury's decision to impose the death sentence.
See Brecht v. Abrahamson, 507 U.S. 619 (1993).
Crime, Arrest, and Pre-Trial Interrogations
March 29, 1982, Petrocelli went on a test drive of a
Volkswagen pickup truck with James Wilson, a used car
salesman, in Reno, Nevada. At some point during that test
drive, Petrocelli shot and killed Wilson. Wilson's body
was found buried in a crevice under some rocks and brush near
Pyramid Lake. The lake is about thirty-five miles north of
Reno. Wilson had been shot in the neck, chest, and back of
a year before killing Wilson, in May 1981, Petrocelli had
pleaded guilty in Washington State to kidnaping his
girlfriend, Melanie Barker. He had received a suspended
sentence conditioned on his completion of a drug treatment
program. Petrocelli absconded from the treatment program
twice and never completed it. Petrocelli shot and killed
Barker in Washington State in October 1981, five months
before he killed Wilson in Nevada.
was arrested for the Wilson murder in Las Vegas on April 18,
1982. The following day, he was interrogated in Las Vegas.
Petrocelli was advised of his Miranda rights, and he
signed a statement indicating that he understood them.
Petrocelli stated during the interrogation, "I'd
sort of like to know what my . . . lawyer wants me to
do." (Ellipsis in original.) He nonetheless continued to
answer questions. Later in the interrogation, he admitted to
having previously stolen a car from a "Dub
Peterson" dealership in Oklahoma City after taking it
for a test drive with a salesman.
was subsequently transported to Reno. On the afternoon of
April 20, he was interrogated by Sergeants Glen Barnes and
Abel Dickson, as well as two prosecutors from the District
Attorney's Office of Washoe County, Bruce Laxalt and Don
Nomura. At the beginning of the interrogation, Petrocelli
made a variety of requests that he characterized as
"preconditions" to talking. They included locating
some of his property, facilitating a visit by his wife,
bringing him photographs of Barker, arranging a television
interview, and receiving psychiatric counseling. Dickson
testified at a hearing outside the presence of the jury that
no promises were made, but that Petrocelli was told that if
his requests "could be done they would be done."
After being informed of his Miranda rights,
Petrocelli confessed to shooting both Wilson and Barker.
April 20, the Public Defender of Washoe County was appointed
as counsel for Petrocelli by order of the Reno Justice Court.
On April 21, Petrocelli personally appeared in the Justice
Court, where he was arraigned and bail was set.
visitors' log for the Washoe County Jail shows that Larry
Wishart, an attorney from the Washoe County Public
Defender's Office, and Tim Ford, an investigator from
that office, visited Petrocelli on April 21, the day of his
arraignment, at about 1:50 pm. (A date and time stamp of
"82 APR 21 P 1:5" appears on the photocopy of the
log. The number specifying the minute is cut off on the
photocopy in the trial court record.) A date and time stamp
shows that their visit lasted about half an hour ("82
APR 21 2:2"). The log shows a visit from Dr. Lynn Gerow
later that day. Gerow was a psychiatrist who had been asked
by Chief Deputy District Attorney Laxalt to evaluate
Petrocelli's competency to stand trial.
relevant page of the visitors' log is dedicated
exclusively to visitors to Petrocelli. Wishart and Ford's
entry, with their signatures, is on line three of the page.
They wrote "WCPD/ATT" in the box asking for their
"relationship." Dr. Gerow's entry, with his
signature, is on line four, immediately below. He wrote
"D.A." in the box asking for his
"relationship." The entry by Wishart and Ford,
stating their relationship to Petrocelli, would have been
apparent to Gerow when he signed the log. A date and time
stamp show that Gerow signed in at about 3:50 ("82 APR
21 P 3:5"). There is no stamp showing when his visit
ended. Gerow testified at trial that he spent two hours
testified that he believed that Dr. Gerow had come to see him
in response to his request for counseling. During his April
20 interview in Reno, Petrocelli had specified as one of his
"preconditions" that he receive psychiatric
counseling. Petrocelli testified consistently at a hearing
outside the presence of the jury, saying that he had stated
as one of his preconditions: "I wanted to have
psychiatric counseling while I was in the jail." He
testified that he "saw a doctor Gerow once." When
asked how long he spoke to Gerow, Petrocelli responded,
"[I]t didn't seem like it was very long." When
asked to estimate the time, Petrocelli responded, "Well,
I never did even finish my conversation. He just cut me off
in the middle and left."
April 27, Dr. Gerow sent a letter labeled
"confidential" to Prosecutor Laxalt in the District
Attorney's office. He wrote:
At your request I examined Mr. Maida [the name under which
Petrocelli was then being held] at the Washoe County Jail on
April 21, 1982. I had an opportunity to discuss his case with
you prior to the psychiatric evaluation.
. . .
Mr. Maida was abused as a child. He was adopted at three
years of age. . . . He was in trouble at school and home at
an early age. He developed a psychopathic personality which
is complicated by a history of severe drug abuse. . . .
In my opinion Mr. Maida is both competent for understanding
the charges and assisting his attorney and responsible (mens
rea) for any alleged offense.
I have determined to see Mr. Maida in the future on an
"as needed" basis. If you require my involvement as
circumstances develop, please feel free to call me.
testified in state post-conviction proceedings that when he
wrote "as needed, " he meant "as needed by Mr.
testified in state post-conviction proceedings that when he
met with Petrocelli on April 21, he did not know that Dr.
Gerow was going to see his client later that afternoon.
Wishart testified that he would not have employed Gerow
because he "had a prosecution bias."
was interrogated again on April 27. After being advised of
his Miranda rights, Petrocelli made another
Guilt Phase Trial
April 28, 1982, Petrocelli was indicted on one count of
robbery with a deadly weapon and one count of first-degree
murder. The guilt phase of the trial began on July 27, 1982,
and ran through August 5, 1982. At trial, the State contended
in support of the robbery count that Petrocelli went on the
test drive with Wilson in order to steal the truck, that he
used his gun to try to force Wilson out of the truck, and
that he shot Wilson when Wilson would not cooperate. To
bolster its theory, the State called Melvin Powell, an
Oklahoma car salesman, to testify that Petrocelli had stolen
a car in a similar manner (though without injuring Powell)
during a test drive in February 1982.
defense contended, based on Petrocelli's testimony at
trial, that Petrocelli had been a bona fide
prospective purchaser with no intent to steal, and that
Wilson was accidentally shot in the midst of a heated
argument and struggle that resulted from haggling over the
price of the truck. To impeach Petrocelli's testimony,
the State introduced portions of the statements that
Petrocelli had made on April 20 and 27. To undermine
Petrocelli's contention that the Wilson shooting was
unintentional, the State impeached Petrocelli with his
statement on April 20 that his earlier shooting of his
girlfriend, Melanie Barker, was an "accident." The
prosecutor also impeached Petrocelli by confronting him with
other inconsistencies between his trial testimony and his
statements to the detectives.
jury found Petrocelli guilty of both charges.
Penalty Phase Trial
Aggravating Factors and Lay Testimony
order to render Petrocelli death-eligible, the State had to
establish at least one aggravating factor. During the penalty
phase of Petrocelli's trial, the State sought to
establish two such factors: (1) that the murder had been
committed in the course of a robbery, and (2) that Petrocelli
had previously been convicted of a violent felony, the
kidnaping of his girlfriend Melanie Barker. (The first factor
was later held by the Nevada Supreme Court to be invalid.
See McConnell v. State, 102 P.3d 606, 624 (Nev.
2004) (per curiam). In reviewing Petrocelli's third
petition for post-conviction relief, the Nevada Supreme Court
held that use of this factor had been improper.)
establish the first factor, Prosecutor Laxalt put John Lucas
on the stand. Lucas had been in the Washoe County Jail with
Petrocelli for about five weeks after Petrocelli's arrest
for the Wilson murder. Lucas testified that Petrocelli had
told him that he had shot Wilson in order to steal the truck.
He also testified that Petrocelli said he was "going to
get rid of" the district attorney as well as an
unidentified woman Petrocelli characterized as a
second factor was Petrocelli's conviction for kidnaping
Barker. At trial, it was uncontested that he had later killed
her. However, at the time of trial he had not been convicted
of the killing. To establish the second factor, Prosecutor
Laxalt called Melanie Barker's mother, Maureen Lawler, to
testify about the circumstances that had led to the
kidnaping. The jury had already learned during the guilt
phase, from Petrocelli's testimony and from the testimony
of an eye-witness, that Petrocelli had killed Barker. Lawler
testified only as to the circumstances that had led to the
kidnaping conviction. Lawler, who had lived with her daughter
in the city of Kent, in western Washington, testified that
Barker had gone to eastern Washington with Petrocelli for
three days, that Barker had been "beaten on the
face" and was "hysterical" when she returned
home, and that at some point during the three days Barker had
been told by Petrocelli that his friends would "do away
with her." Lawler testified that after Barker had told
Petrocelli that her mother would have the police looking for
her, "He agreed to take her back. . . . At that point,
she got away from him." Lawler also described a phone
conversation, prior to the kidnaping, when Lawler had
arranged for Petrocelli's wallet to be taken to the
police station. Petrocelli objected to her having done so,
and she testified that Petrocelli said he "would blow me
away." Laxalt also called Joan Bleeker, who testified
that Barker had come into a restroom during the time she was
in eastern Washington and had asked Bleeker to call the
police because she was being kidnaped.
Petrocelli testified, presenting his version of what had
happened during the three days in eastern Washington in an
attempt to show, despite his conviction, that he had not
really kidnaped Barker. According to Petrocelli, Barker went
with him voluntarily; they were accompanied by a friend of
Petrocelli; they went out in public, eating in restaurants
and going to stores together; and she and Petrocelli got in a
fight as they were driving back to western Washington.
interval between the testimonies of Lawler and Bleeker,
Prosecutor Laxalt played a tape recording of a portion of
Petrocelli's interrogation on April 20 in which
Petrocelli described the Wilson killing. Petrocelli had cried
during his in-court testimony when describing the Wilson
killing. The tape recording is not in the record, but it is
apparent from the transcript that Laxalt played the tape to
contrast Petrocelli's tearful demeanor during trial to an
unemotional demeanor on April 20.
Professional Mental Health Evidence
counsel Wishart submitted written reports by three different
mental health professionals-Dr. John Petrich, a psychiatrist;
Dr. Martin Gutride, a psychologist; and Dr. John Chappel, a