F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T R A C Y P E T R

O C E L L I , Petitioner-Appellant

,

v.

R E N E E B A K

E R , W arden, R espondent-Appellee. No. 14-99006

D.C. No. 3 :94-cv-00459-RCJ

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the District of Nevada Robert Clive J ones, Senior District J udg e, Presiding

Arg u ed and Submitted September 16, 2016 San F rancisco, California

F iled J uly 5, 2017 Amended Aug

ust 23, 2017

B efore: W illiam A. F letcher, Morg an Christen, and Michelle T. F riedland, Circuit J udg es.

Order; Opinion by J udg e W . F letcher; Concurrence by

J udg e ChristenP E T R O C E L L I V

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SUMMARY *

Habeas Corpus / Death P enalty

The panel fil ed an amended majority opinion a nd
concurrence, denied a petition for panel rehearing

, and denied

on behalf of the court a p e t i t ion for rehearing en banc, in Tracy Petrocelli’s appeal from the denial of his pre-AEDPA habeas corpus p e t ition challeng ing his Nevada state conviction and capital sentence fo r r obbery and first-deg r ee murder.

I n the amended opinion, t h e p anel affirmed the district court’s denial of the petition w ith respect to the conviction, reversed the denial of the petition with respect to the death sentence, and remanded.

The panel h eld that b ecause Petrocelli failed to invoke his rig ht to counsel unambig uously

, his A pril 19 i n terrog ation

was not c onducted in violation of Miranda v. Arizona
, 384 U.S. 436 (1966), or Edwards v. Arizona
, 451 U.S. 4 7 7 (1981), and trial c ounsel was therefore not ineffective in failing to move to suppress testimony as fruit of the interrog ation.

The panel rejected Petrocelli’s contention that use at trial of h is statements to detectives on April 20 and 27 violated his F ifth, Six th, and F ourteenth Amendment rig h ts. B ecause the State used the statements only for impeachment, the pan el

r e j e cted Petrocelli’s c ontention that his F ifth and Six t h Amendment rig hts were violated b y the taking of his

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P E T R O C E L L I V

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stateme nts during interrog ations at which his appointed counsel was not present. The panel rejected the defendant’s contention that his statements were involuntary

.

The panel affirmed the dist r i c t court’s conclusion that Petrocelli f

a i l ed to ex haust his challeng e to the jury instruction defining premeditation and deliberation.

The panel held that the State waived any defen se to Petrocelli’s contention that the admission o f p s y c h iatric testimony during the penalty p h a se violated his F ifth a nd Six th Amendment rig hts u nder Estelle v. Smith

, 451 U .S. 454 (1981). T he panel h eld that e ven if the State had not waived its defense, admission of the tes t i m ony violated Estelle

, where the psy chiatrist, acting at the request of the prosecutor, visited Petrocelli in jail to d etermine his competency to stand trial, failed to provide Miranda warning s , d i d not seek o r obtain permission f

rom Petrocelli’s a

ppointed counsel to visit

or evaluate him, and testified that Petrocelli was dang erous and incurable. The panel concluded th at the error was not harmless.

Concurring , J udg e Christen wrote separately because, in her view, even if the S t a t e c ould show that the prosecutor’s tactics had n ot prejudiced the jury ’ s v erdict, Petrocelli’s case is o n e of the very few in which deliberate prosecutorial misconduct and eg reg ious trial errors warrant habeas relief.

COUNSEL

A. R ichard Ellis (arg

ued), Mill Valley

, California, for Petitioner-Appellant.P E T R O C E L L I V

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Robert E

. W ieland (arg ued), Senior Deputy Attorney General; J effrey M. Conner, Assistant Solici tor General; Adam Paul L a x alt, Attorney General; Office of the Attorney General, Carson City , Nevada; for Respondent-Appellee.

ORDER

The majority o p inion a

n d c o ncurrence filed on J u ly 5, 2017, a nd appearing at 862 F .3d 809, are hereby amended. An a mended majority opinion and c o ncurrenc e a r e filed concurrently

with this order.

The full court h as been advised of the petition for rehearing en banc, and no jud ge has r equested a vote on whether to rehear the matter e n banc. F ed. R. Ap p

. P. 35. The p e tition for panel rehearing and r ehear i n g en b anc is DENIED

. No new Petition for Panel Rehearing o r Petition for Rehearing

en B anc will be entertained.

OP INION

W

. F L ETCHER, Circuit J udg e:

I n 1982, Tracy Petrocelli was c onvicted and sentenced to death in Nevada state co u r t f or the r obbery and first-deg r ee murder of J a mes W ilson

, a Nevada used car salesman. P et r ocelli filed a federal petition for writ of habeas corpu s before th e effective d ate of the Antiterrorism and Effective Death Penalty Act ( “AEDPA”). Petrocelli appeals the district court’s denial of the writ.P E T R O C E L L I V

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W e affirm the district c ourt’ s denial of the w rit with respect to Petrocelli’s convic t ion but reverse with respect to his death sentenc e

. W e hold that admission of Dr. L y nn Gerow’s psy chiatric testimony during the penalty phase violated Petrocelli’s F ifth and Six th Amendment rig hts under Estelle v

. Smith

, 451 U

. S

. 454 (1981), and that the violation had a substantial and injurious e f fect on the jury ’s decision to impose t h e death sentence. See Brecht v. Abrahamson

, 507 U.S. 619 (1993).

I . B ackg round

A. Crime, Arrest, and Pre-Trial I nterrog ations

On March 29, 1982, Pet r o c el l i went on a test drive of a Volkswag en pickup truck wit h J ames W ilson, a u sed c ar salesman, in Reno, Nevada. A t some point during that test drive, Petrocelli shot and killed W ilson. W ilson’s body was found b uried in a c revice under some ro cks and brush near Py ramid L ake. The lake is about thirty

- f i v e m i les north o f Reno. W ilson had been shot in the n ec k

, chest, and back o f the head.

Nearly a y ear before killing W ilson, in May 1981, Petrocelli had pleaded g u i l t y in W ashing ton State to kidnaping his g irlfriend, Melanie B a rker. He had received a suspended sentence c onditioned on his completion of a d rug treatment p rog ram. Petrocelli absconded from the treatment prog r am twice and never c o mpl e t ed it. Petrocelli shot a nd killed B a rker in W ashing ton State in Octob e r 1981, five months before he killed W ilson in Nevada.

Petrocell i was arrested for the W ilson murder in L a s Veg as on A pril 1 8, 1982. The following day

, he wasP E T R O C E L L I V

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interrog ated in L as Ve ga s. Petrocelli was advised of his Miranda rig hts, and he sig ned a statement indicating that he understood them. Petrocelli stated during t h e interrog ation, “I ’d sort of like to know w hat my

. . . lawy er wants m e to do.” ( Ellipsis in orig inal.) He nonetheless continu ed to

answer questions. L ate r in the interrog ation, he admitted to having previously stolen a car from a “Dub Peterson” dealership in Oklahoma City after taking i t f o r a test drive with a salesman.

Petrocelli was subsequently transported to Reno. On the afternoon of April 20, he was interrog ated by Serg e ants Glen B arnes and A bel Dicks o n , a s well as two prosecutors from the D istrict A t t orney ’s Office of Washoe County
, B ruce L ax a lt a n d Don Nomura. At the beg inning of the in terrog ation, Petrocelli made a variety of requests that he characteriz ed a s “preconditions” to talking

. Th e y included locating some of his property , facilitating a visit by his wife, bring ing him photog raphs of B a rker, arr a n gi n g a television interview, and receiving psy chiatric co unseling

. Dickson testified at a h earing o utside the presence of the j u r y t hat no promises were made, but that Pet r o c elli was told that if his requests “could be done they would be done

. ” After being informed o f h is M

iranda rig hts, Petrocelli confessed to shooting both W ilson and B arker.

On April 20, the Public Defender of W ashoe County was appointed as counsel for Petrocelli b y order of the Reno J ustice Court. On A pril 2 1, Petrocelli personally a ppeared in the J ustice Court, where he was arraig ned and bail was set.

T h e visitors’ log for the W ashoe County J a il shows t h at L arry Wishart, an attorne y f r o m the W ashoe County Public Defender’s Office, and T i m Fo rd, an investig ator from thatP E T R O C E L L I V

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office, visited Petrocelli on A pril 21, the day of his arraig nment, at about 1:50 pm. (A date and time stamp o f “82 APR 2 1 P 1 :5” appears on the photocopy of the log

. The number specify

ing the minute is cut off on the photocopy in the trial court record.) A date a nd time stamp shows that their visit lasted about h alf an hour (“82 A PR 21 2 :2”). Th e log sho w s a visit from Dr. L y nn Gerow later that day

. G erow

was a ps y c h i a trist who had been asked by Chief Deputy District Attorney

L ax alt to evaluate Petrocelli’s competency to stand trial.

The relevant pag e o f the visitors’ l o g is dedicated

ex c lusively to visitors to Petrocelli. W isha r t a n d F ord’s entry , with their sig natures, is on line three of the pag e

. They
wrote “W CPD / A TT ” in the box asking for their “relationship. ” Dr. Gerow’s entry , with his sig nature, is on line four, immediately below. He w r o t e “ D .A.” in the box asking for his “ relationship.” The entry b y W ishart and F o rd, stating their relationship to Petrocel l i

, would have been apparent to Gerow when he sig ned the log

. A date and time stamp show that Gerow sig ned in at a b out 3:50 (“82 APR 21 P 3 :5”). There is n o stamp showing w h e n h i s visit ended. Gerow testified at trial that he spent two hours interviewing Petrocelli.

Petr o c e lli testified that he believed that Dr. G erow h ad

come to see h im in response to his request f or c ounseling

. During his A pril 20 interview in Reno, Petrocelli h ad specified as one of h is “precondition s ” that he receive
psy chiatric coun s eling

. Petrocelli testified consistently at a hearing outside the p resence of the jury

, say ing that he h ad stated a s on e o f h i s preconditions: “I wanted to have
psy chiatric counseling while I was in the jail.” He testified that he “saw a doctor Gerow once.” When asked how long heP E T R O C E L L I V

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spoke to Gerow, P e trocelli responded, “ [ I ] t d idn’t seem like it was very long .” W hen asked t o e s t i mate the time, Petrocelli respon d e d

, “W ell, I never did even finish my conversation. He just cut me off in the middle and left.”

On April 27, Dr. Gerow sent a le t t e r labeled “confidential” to Prosecutor L a x alt in the District Attorney ’s office. He wrote:

At y o ur request I ex a mined Mr. Maida [ t he name under which Petrocelli was then being held] a t the W as h o e County J ail on April 2 1, 1982. I h ad a n opportunity to discuss his case with y o u prior to the
psy chiatric evaluation.

. . .

Mr. Maida was abused as a child. He was adopted a t three y ears o f age.

. . . He was in trouble at school and home at an e a r l y ag e

. He d eveloped a psy chopathic pers onality which i s complicated by a history of severe drug abuse. . . .

I n m y opinion Mr. Maida is both competent for u nderstanding the cha r ge s a nd

as s isting his attorney a

nd responsible (mens rea) for any

alleg ed offense.

I have determined to see Mr. Maida in the future on an “as needed” basis. I f y ou require
my involvement as circumstances devel o p, please feel free to call me.P E T R O C E L L I V

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Gerow testified in s t at e p ost-conviction proceeding s that when he w r ote “as needed,” he meant “as needed by Mr. L ax a lt.”

W ishart testified in state post-conviction proceeding s that when he met w ith Petrocelli o n April 21, he did not know that Dr. Gerow was g oing to see his client later that a fternoon. W ishart testified that he w ould not h ave e mploy ed G erow because he “had a prosecution bias.”

Petrocelli was interrog ated ag ain on April 27. After being

a dvised of his Miranda rig hts, Petrocelli made anoth e r statement.

B . Guilt Phase Trial

On A pril 28, 1982, Petrocelli w a s i n d i cted on one count of robbery with a deadly weapon and o n e c o u n t of firstdeg ree murder. The g uilt phase of the trial beg an o n J uly 27, 1982, and r an throug h Aug u st 5, 1982. At trial, the State contended in support of the robbery c ount that Petrocelli went

on the test drive with W ilson in order to s teal the truck, that he used his g un to try to f o r ce W ilson out of the truck, a nd that he shot W ilson when W ilson would not c ooperate. T o bolster its theory

, the State calle d M e l vin Powell, an Oklahoma car s a l es man, to testify that Petrocelli h ad stolen

a car in a similar manner (thou gh without injuring Powell) during a test drive in F ebruary 1982.

The defense cont e nded, based on Petrocelli’s testimony
at trial, that Petrocelli had been a b ona fide prospective purchaser with no intent to st e a l

, and that W ilson was

ac cidentally shot in the midst of a heated arg ument a nd strug g le that resulted f

rom hag g ling over the price of theP E T R O C E L L I V

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truck. To impeach Pe t r ocelli’s testimony

, the State introduced portions of the statements that Petrocelli had made

on April 20 and 27. T o u n d e r mine Petrocelli’s contention that the W ilson shooting w as unintentional, the State impeached Petrocelli with his statement on April 20 that his earlier shooting of his g irlfriend, Melanie B arker, w as an “ac c i d e nt.” The p rosecutor also impeached Petrocelli b y confronting him with o ther inconsistencies between his trial testimony and his statements to the detectives.

The jury found Petrocelli g uilty of both charg es.

C. Penalty

Phase Trial

1. Ag g ravating F actors and L ay Testimony

I n o rder to render Petrocelli death-elig ible, the State had
to establish at least one ag g ravating f actor. During the penalty phase o f Petrocelli’s trial, th e S tate soug ht to establish two such factors: (1) that the murder h ad been committed in the course of a robbery

, and (2) that Petrocelli had previously been convicted of a violent felony

, the kidnaping of his g irlfriend Melanie B arker. (The first factor

was later held by the Nevada Supreme Court t o b e invalid. See McConnell v. State , 102 P.3d 606, 624 (Nev. 2004) (per curiam). I n reviewing Petrocelli’s third petition for postconviction relief, the Nevada Supreme Court held that use o f this factor had been improper.)

To e stablish the f

irst factor, Prosecutor L ax a lt p ut J ohn L ucas on the stand. L u cas h ad been in the W ashoe County J ail with Petrocelli f

or about five weeks after Petrocelli’s

a r r est f or the W ilson murder. L ucas testified that Petrocell i had told him that he had s h o t W ilson in order to steal theP E T R O C E L L I V

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truck. He also testified that Petrocelli said he was “g oing to g et rid of” t he district attorney as well as an unidentified woman Petrocelli characteriz ed as a “snitch.”

The second f

actor was Petrocelli’s conviction for kidnaping B arker. At t r i al, it was u ncontested that he h ad later killed her. However, at the time of trial he had not been convicted of the killing

. To establish the second f a c t o r, Prosecutor L ax alt called Melanie B arker’s mother, Maureen L awler, to testify about the circumstances that had led to the kidnaping

. The jury h ad alrea d y learned during the g u ilt phase, from Petrocelli’s testimony and from the testimony o f

an ey e-witness, that Petrocelli had killed B a r k e r. L awler testified only as to the circumstances that h a d l ed to the kidnaping convicti o n

. L awler, who had lived with her daug hter in the city of Kent, in western W ashing ton, testified that B a rker had g one to eastern W ashing to n w i t h Petrocelli for three day s, that B arker h ad been “beaten o n the face” a nd

was “hy sterical” when she returned hom e , a n d that a t some point during the three day s B arker had been told by Petrocelli that his friends would “do away with h er

. ” L awler testified that after B arker had told Petroc e l l i t h a t her mother would have the police looking for her, “He ag reed to take her back.

. . . At that point, she g ot a w ay f ro m h i m

. ” L awler also described a phone conversation, prior to the kidnaping

, when L awler had arrang ed for Petrocelli’s wallet to be taken to the police station. Petrocelli objected to her having d o ne so, a nd she testified t h a t Petrocelli said he “ w ould blow me away

. ” L ax a lt also called J oan B leeker, who testified that B arker h ad

come into a restroom during the time she w as in eastern W a shing ton and had asked B leeker to call the police because she was being

kidnaped.P E T R O C E L L I V

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Petrocelli testified, presenting his version of what h ad h a p p e n ed d

uring the three day s in eastern W ashing ton in a n attempt to show, despite his c onviction, that he had not really kidnaped B arker. According to Petrocelli, B arker went with him voluntarily ; they were a ccompa n i e d by a friend o f Petrocelli; they w ent out in public, eating in restauran t s and
g oing to stores tog ether; a n d she a nd Petrocelli g ot in a

fig ht as they were driving

back to western W ashing ton.

I n the interval between th e t estimonies of L awler a nd B l ee k er, Prosecutor L ax alt play ed a tape recording of a portion of Petrocelli’s interrog ation on April 2 0 in which Petrocelli described the W ilson killing

. Petrocelli ha d cried during h is in-court test i m o n y when describing the W ilson killing. T h e tape recording is not in the record, but it is apparent f

rom the transcript that L ax alt play ed the t a p e to contrast Petrocelli’s tearful demean o r d uring trial to an unemotional demeanor on April 20.

2. Professional Mental Health Evidence

Defense c ounsel W ishart submitted written re p o r ts b y three different mental hea l t h professionals—Dr. J ohn Petrich,

a psy c hiatrist; Dr. Martin G utride, a psy cholog ist; and Dr. J ohn Chappel, a psy chiatrist. W ishart c a lled none of the three to g ive live testimony

.

Dr. Petrich’s evaluation of Petrocelli’s mental health a nd future dang erousness was the most f avorable to Petrocelli, but his evaluation was of limited use to the defense. Petrich h ad evaluated Petrocelli in J une 1981, when Petrocelli was in jail in W a shing ton State o n the kidnaping charg e, prior to k illing B arker and W ilson.P E T R O C E L L I V

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D rs. Gutride and Chappel evaluated Petrocelli in J u l y 1982, a fter he had ki l l e d Barker and while he was in jail waiting to stand trial for killing W ilson. Gutride reported that Petrocelli w as adopted at ag e two and a half, and had b een phy sically abused by his b i o l og ical mother. Petrocelli’s adoptive mother died when Petroc e l l i was seventeen, a nd Petrocelli attempted suicide several months after the funeral. After his a doptive mother’s death, he became close to his adoptive f ather for a b rief time, but fell out of touch after his father remarried. Gutride reported that Petrocelli cried when he spoke about having lost contact with his f ather. Petrocelli

was “placed in a military academy a t ag e twelv e because o f discipline problems,” and he joined the Marines at about ag e seventeen. W hile in the Marines, Petrocelli was arrested for fig hting with policemen while drunk; shortly thereafte r, he beg an g oing A W OL

. He was eventually g iven a dishonorable discharg e. Sometime around 1974, Pe t r ocelli moved to W a shing ton State, beg an working in a steel mill, and became, by his o w n a dmission, “increasing ly unstab le.” I n 1976, he attempted suicide. I n 1977, he was arrested for theft but fled before his trial. He became a professional g ambler in Reno, Nevada, and beg an abusing a lcohol and drug s. He was arrested in 1980 for kidnaping B arker.

Dr. Gutride reported that Petrocelli “cried openly ” during the interview and that his “distraug ht behavior had the quality of his practically beg g ing for help.” “[ H] e desperately w ants to k n ow what is the matter with him and why he did the thing s he is charg ed with. H e doesn’t deny responsibility

, but
say s he can’t remember most of the circu m stances surrounding the various crimes.” According to Gu tride, Petrocelli told him he “ha[ d] called crisis lines in every city

, but been unable to g et any help” and “ha[ d] talked with
psy chiatrists while in other jails and been put off.”P E T R O C E L L I V

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Dr. Gutride reported that throug h out the int e r v i ew, P etrocelli’s “thoug ht p rocesses were log ical and c oheren t , memory seemed g ood, but selective, and intellig ence seemed quite a dequate.” However, “[ o] nce f ormal testing beg an, the client seemed to lose those qu a l ities. The difference w as so striking that he appeared to be f ak i ng ‘bad.’” Gutride concluded that Petrocelli was “clearly a lot b r i g h ter than his test scores reflect.”

Dr. G utride concluded that Petrocelli is “very impulsive,” has “a hig h potential for v i o lence,” is “very mistrustful o f others,” and may be “a relatively hig h suicide risk.” Gutride diag n o s e d Petrocelli with “antisocial personality with paranoid f

eatures.” He noted that “[ t] he personal distress he

ex h ibited during the interview seems g enuine and the c l i e n t may truly desire some mental health treatment,” thoug h his “ability to profit from such tre a t m e n t is questionable” because of his distrust of others. Gutride concluded b y noting that Petrocelli “can be quite dang erous to othe r s as well a s himself and treatment should be offered in a setting w here the client can be closely monitored.”

Dr. Cha p pel reported some of the same family backg round information that Dr. Gu tride reported. Chappel further reported that Petrocelli’s arrest for kidnaping was “very traumatic” f

or h im. Petrocelli “repeatedly asked for help” w h i l e i n jail in Seattle, was seen by Dr. Petrich, a nd

was put o n an antipsy chotic drug t h at helped him sleep. Petrocelli apparently attempted to commit suicid e s h o rtly afterwards, a

nd was put in solitary c o nfinement as a r esult. Chappel r eported that Petro celli “ viewed the ex perience a s

one of asking for help and not g etting it.” He rec o u n ted Petrocelli’s description of shooting B arker. Petrocelli asserted that “there were times when a ‘black box ’ of controlP E T R O C E L L I V

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in his head opened and a voice or an impulse told him to k ill

or do some o t h er destructive act,” but that he still did not “understand why h i s g irlfriend had to die.” Petrocelli “ex p r e sse[ d] a wish for further evaluation or treatment so he [ could] find out whether or not he killed on purpose.”

Dr. Chappel concluded that Petrocelli was both “depress e d and ang ry ,” with the depression “ex pressed throug h sobbing and tears,” as w ell as various suicide attempts. His a

ng er was directed “primarily at the police a nd the district attorney s.” “ He c o n s i d e r s the W ashoe County District Attorney as premeditat ing his murder. When this
rag e occurs [ he] t h reatens to kill the prosecutor.” Chappel diag nosed Pe t r o celli with impulse control disorder a nd antisocial personality d i s o rder. He wrote that “a more

ex tensive e valuation” w ould be u seful in order for Petrocelli “to have a better understanding of the reasons for his loss o f impulse control and his reason for killing someone who was close to him.” Chappel observed that if Petrocelli were “ not sentenced to death and ex e c uted

. . . in his current state o f mind he is very

dang erous to those people to whom his rag e is directed. A period of e valuation and a trial of treatment mig ht serve a useful p u r p ose in preventing any f urther homicidal outbursts of rag e on his part.”

After these three written r eports we r e a d mitted into evidenc e , P r o secutor L ax alt called Dr. Gutride to the stand. Gutride’s testimony was very s h o r t , filling just under two pag es of transcript. I n an at t e m p t to undermine Gutride’s diag nosis and the portions of his report that were favorable to Petrocelli, L ax alt drew Gutride ’ s a ttention to his conclusion that Petrocelli had b een “faking ‘bad.’” L ax alt asked Gutride, “Despite the faking on the I Q test, et cetera, do y ou think this is a valid diag nosis? ” Gutrid e r e p l ied that he couldP E T R O C E L L I V

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s ubstantiate his diag nosis o f “ u n social with parano i d tendencies” with a “long history .” Gu tride stated that the d i ag nosis “ does not imply an individual is unable to th i n k properly or conduct themselves conventionally

. I t relates mostly to a sty le of living .”

P rosecutor L ax alt then called D r. Gerow to the stand

. Defense c ounsel W ishar t o b jected on the g rounds o f
psy chiatrist- p a t i e nt privileg e, but the court overruled the objection. L ax alt introduced n o written r eport by Gerow. Gerow testified that he had interviewed Petroce l l i for two hours on A pril 21, and that as a result of his interview he h ad formed a n o p i n i o n o f Petrocelli’s “mental and emotional personality traits.” Gerow said t h a t h e ag reed with Drs. Chappel and Gutride’s diag nosis of “antisocial personality

. ” However, Gerow referred to it as a “psy chopathic” r a ther than

an “antisocial” personality

. G erow descr i b ed Petrocelli’s personality as “rare,” and as the personality of someone “who is very callous a

n d sel f ish, someone unreliable a nd irresponsible.” He testified that i n d i viduals with
psy chopathic personalities “are repeatedly in trouble with the law,” because they “don’t believe in the rules that society set up” and do not learn from punishment. He testified that “[ t] here is no tre a t m e n t at all” f or psy chopathic personality

, that the c ondition worsens during adolescent y ears, and that it “persists throug hout life.” Gerow testified that the violence
p o t ential of a p sy chopathic “varies,” but that the p ropensi t y for further violence is “ quite hig h” for individuals with a h i story of v iolence. Gerow testified that being “a
psy chopathic” was an incurable “emotional d i s turbance.” Gerow concluded his direct ex amination testimony by stating unequivocally

, “There is no cure.”P E T R O C E L L I V

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3. J ury I nstructions, F inal Arg u ment, and Verdict

B e fore final penalty -phase arg uments, t h e judg e i n s t ructed the jury

. J ury I nstruction 5 provided, “I f t h e penalty is fix ed at life imprisonment without the possibility of parole, the defenda n t s h all not be e lig ible for parole.” However, the instruction continued, indicating that the State B oard of Pardon Commissi o n ers had the power to release Petrocelli f

rom prison even if the jury returned a sentence o f life imprisonment without parole:

Under the laws of the State of Nevada, any sentence imposed b y the jur y m ay be reviewed by the S t a te B oard of Pardon Commissioners. W ha t ever sentence y ou return in y o u r verdict

, this Court will impose that sentence. W hether or not the State B oard

o f P ardon Commissioners upon r eview, if requested by the d efendant, would chang e that
sent e n ce, this Court has no way of knowing

. The State B oard o f Pardon Commissioners, however, would h ave the power to modify any sentence at a later date.

I n his closing arg ument, Prosecutor L ax a lt emphasiz ed Dr. Gerow’s testimony

, Petrocelli’s incurability

, and the possibility that the B oard of Pardon Commissioners could release Petrocelli from prison. L a x alt maintained that Petrocelli “i s , h as b een, and w ill forever remain a c ool unfeeling

, callous, individual, and a cold-blooded t hief a nd killer.” “He will never chang e.” He continued, “Dr. Gerow has said there is n o treatment; he will be a psy cho p athic personality

, unfortunately .” “Ex treme mental or emotional disturbance” cannot be a mit ig ating circumstance becauseP E T R O C E L L I V

. B A K

E R 18

such disturbance implies that “there is treatment available for this person. W hat psy chopath means, essentially , is a mean, bad person who has never chang ed and w ho will continue to victimiz e.” “ [ N] o society

, no community

, no county , no c ity

, no state, should ever have to risk ag ain Tracy Petrocelli on the street.”

I n his rebuttal arg ument, Prosecutor L ax alt pointed to the reports of Drs. Chappel and Gutride, noting that each h ad discussed the possibility o f treatment: “That a p er iod o f evaluat i on and a time of treatment mig ht serve a reasonable
purp o s e

. . . . Do we take that chance? ” He answered this question by e mphasiz ing Dr. Gerow’s testimony

. “ [ H] e will
not learn f

rom punishmen t

. He will not learn, he cannot learn.” I nvoking the possibility of P e t r ocelli’s release from prison, L ax a lt concluded:

I ask y ou to co nsider y e a rs down the road when the d ecisions are bein g made at the Pardons B oar d and the Parole B oard and we have all g one our separate way s a n d Mr. Petrocelli is the r e, the sole person a pply ing f or the pardon or apply ing for parole cry in g tears of remorse and telling the people how it wasn’t he who was the m u r derer of Mr. W i l son it was an accident a nd he g ot railroaded, and telling people that it wasn’t he who was the murderer of Melani e i t was an accident, and he was railroaded.

. . . B ecause he will be there. He w ill be there.

. . . That’s a sad fact, but it’s to be faced.P E T R O C E L L I V

. B A K

E R 19

L ax alt asked that the jury “ r eturn a verdict of death f or M r. Tracy Petrocelli, a cold-blooded killer, who wi ll alway s remain so.”

The jury returned a sentence of death.

I I . Post-trial Procedural History

The Nevada Supreme Court affirmed Petrocelli’s conviction a nd sentence. See Petrocelli v. State
, 692 P.2d 503 (Nev. 1985). Petrocelli f iled a timely state petition for post-conviction relief, which was denied on the merits by the
state courts. H e then filed a f ede ral habeas petition, which the district court dismissed with o ut prejudice b ecause it contained unex hausted claims. Petrocelli returned to s t a t e court to e x haust these clai m s , w h ich the state courts dismissed as procedurally defaulted.

Petrocelli filed his second federal hab e a s p e tition pro se

on October 28, 1994, a

n d then filed a counseled a mended petition in 1996. The amended petition raised various claims, including two c laims challeng ing the reference to the Pardon B oard in J ury I nstruction 5

. T he first of those two claims, labeled “Ground 4,” alleg e d t h a t the instruction improperly
sug g ested that Pe trocelli could receive “a pardon or parole” i f sentenced to life without the possibility of parole because it allowed the jury to “inappropriately speculate.” T h e second cl a i m , labeled “Ground 6,” alleg ed that the jury instruction “inaccurately led the jury to b elieve that Petitioner, un der Nevada law, could receive parole” even tho u gh Nev. Rev. Stat. § 213.1099 prohibits the g ranting of parole to a prisoner who has a history of “[ f] a i l u re in parole, probation, work

r e l e ase or similar prog rams.” The district court dismissed Ground 6 and several other g rounds as an “abuse of the writ”P E T R O C E L L I V

. B A K

E R 20

because they had n ot been raised in Pet ro c e lli’s first federal habeas petition. I t then denied Petrocelli’s amended petition in September 1997, fin d i ng all claims either unex hausted, procedurally

defaulted, or nonmeritorious.

On appe a l

, we reversed in part and remanded for the district court to c onsider various claims it had improperly dismis s e d as a

n “abuse of the writ,” including G round 6. Petrocelli v

. An g e l one , 248 F .3d 8 77, 884–85, 887 (9th Cir. 2001). B e cause in his briefing to us Petrocelli had not made
any arg ument with respect to Ground 4, we deemed that
g rou n d a bandoned. Id. at 880 n.1. On remand, the district
court found various claims unex hausted a nd stay ed Pet r o c e l l i ’ s petition in order to p ermit h im to return to state court to ex haust them.

Petrocelli filed his third state petition for post-conviction relief on A ug ust 11, 2003, raising a number of claims. The
state district court denied Petrocelli’s p etition, deny ing some claims o n the merits and h olding some c l a i m s procedurally barred. Petrocelli appealed from the state district court’s denial, and the Nevada Supreme Court affirmed.

Petrocelli then returned to federal court and f iled his fourth amend e d p e t ition, the o perative petition in this c ase. I n h is petition, he challeng ed, inter alia

, J ury I nstruction 5, in lang uag e similar to that used in the claim he h a d labeled “Ground 6” in his earlier petition. I n this petition, he labeled the challeng e “Claim 4.” T he district c o urt dismissed Claim 4 a fter concludi n g t h a t it corresponded to Ground 4 o f Petrocelli’s earlier petition, which we h ad deemed abandoned in our earlier decision. The district court required Petrocelli
to abando n various claims it deemed unex hausted, a nd rejected the remaining

claims on the merits.P E T R O C E L L I V

. B A K

E R 21

The district court issued a certificate of appealability as to three claims: (1) a claim that trial c ounsel was ineffective for failing to object to the a dmission of Powell’s testimony ; (2) a claim that Petrocelli’ s April 20 and 27 statements were admitted in v iolation of the F ifth, Six th, and F ourteenth Amendments; and ( 3) a cl a i m that introduction o f Dr. Gerow’s testimony violated Petrocelli ’s F ifth and Six th Amendment r ig hts

. We issued a certificate of appealability

as to three additional claims, includ i n g a claim challeng ing J ury I nstruction 5.

I I I

. J urisdiction and Standard of Review

W e have jurisdiction ove r t h e district court’s denial o f Petrocelli’s federal habeas p etition pursua n t t o 28 U .S.C. §§ 1291 and 2253(c).

W e review de novo a district court’s decision to g rant or deny a h abeas petition. Curiel v. M iller

, 830 F .3d 864, 868 (9th Cir. 2016). The petition at issue w as filed in 1 994, w ell before the A pril 2 4, 1996, effective d ate of the Antiterrorism and Effective Death Penalty A ct of 1996 (“AEDPA”). Thus, AEDPA’s deferential standard of r eview does not apply

. See W oodford v. G a rceau , 538 U.S. 202, 2 07 ( 2003); see also Thomas v. Chappel l

, 6 78 F

. 3d 1086, 1100 (9th Cir. 2 012) (“W e have consistently held that where . . . a petitioner filed

a habeas application before the effective date of AEDPA a nd the district c ourt retained jurisdiction over the case, AEDPA does not apply even if the petitioner f iles an amended petition after the effective date of AEDPA.”).

Under pre-AEDPA law, “we review de novo questions o f law and mix ed questions of law and fact, whether decided b y the distri c t c o u r t or the state courts.” Thomas

, 678 F .3d atP E T R O C E L L I V

. B A K

E R 22

1 1 0 1 (alteration o mitted) (quoting Sivak v. Hardiso n , 658 F .3d 898, 905 (9th Cir. 2011)). W hether a constitutional

error was harmless is a mix ed question o f law and fact that is reviewed de novo. Ghent v

. W oodford

, 2 79 F .3d 1 121, 1126 (9th Cir. 2002). State court finding s o f fact are “entitled to a presumption of correctness unless they are ‘not fairly supported by the record.’” Silva v. W o odford

, 279 F .3d 825, 835 ( 9th Cir. 2002) (quoting former 28 U.S.C. § 2254(d)(8)).

I V. Discussion

A. Guilt Phase Claims

Petrocelli c h a l l eng es h is conviction on three g rounds. F irst, he contends th a t h i s trial counsel was ineffective for failing to object to the testimony o f Powell, the Oklahoma c ar salesman, on the g round that Powell’s testimony was the f ruit of Petrocelli’s April 19 statement, which had b e e n obtained in violation o f Miranda v. Arizona
, 384 U.S. 436 (1966), a nd Edwards v. Arizona
, 45 1 U.S. 4 77 (1981). Second, he contends that the use at trial o f his April 20 and 27 statements violated the F ifth, Six th, and F o u rteenth Amendments. T h ird, he contends that a g uilt-phase jury instruction d ef i n i ng premeditation a

nd d e l i b e r a

t i o n u n constitutionally relieved the S t ate of its burden of proving each element of the crime bey ond a reasonable doubt.

F or the reasons that follow, each contention fails.

1. Powell Testimony

Petrocelli contends that t r i al counsel was ineffective for failing to object t o P o well’s testimony a s fruit of a Miranda and Edwards violation. As r e c o u nted above, Powell was aP E T R O C E L L I V

. B A K

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used c a r s alesman from whom Petrocelli had stolen a c ar during a tes t drive, in a manner similar to his theft of the truck in Nevada. The prosecution learned of the prior vehicle theft during the April 1 9 interrog ation when Petrocelli adm i t ted he had stolen a vehicle f rom a “Dub Peterson” dealership in Oklahoma City

.

T o show ineffective assistance of counsel under Strickland v. W

ashington

, 466 U.S. 668 (1984), a d ef e ndant
must show that his counsel’s r epresentation “fel l b e l ow an objective standard o f reasonablenes s” and that he was prej u d i c ed by the deficient performance. Id. at 6 8 7–88. A failure to make a mot i o n t o suppress that is unlikely to succeed g enerally does not constitute ineffective assistance o f counsel. S

ee Premo v. M

oore , 562 U.S. 1 15, 124 (2011); see also Lowry v. Lewis
, 21 F .3 d 3 4 4
, 346 (9th Cir. 1 994) (holding that failure to make a m o t i on to suppress which would “ be meritless on the facts and the l a w ” does not constitute ineffective assistance of counsel).

B e fore beg inning the interrog ation on April 19, the police officers advised Petrocelli of h is Miranda rig hts, a nd Petrocelli sig ned a statement i n d i cating that he u nderstood them. The o fficers then be ga n q u estioning Petrocelli. F o r

some time he answered questions fre e l y

. W hen he later became evasive, one of the officers observed, “I thoug ht . .

. y ou wanted to talk to us about this.” Petrocelli r esponded, “I do,” and continued answering questions. Shortly a fterwards, Petrocelli stated, “I ’d sort of like to know what my

. . . lawy er wants me t o d o

. ” (Ellipsis in orig inal.) W hen the officer asked if Petrocelli had understood his r ig hts, he answered that he did. L ater in the q

u estioning

, Petrocelli stated, “ I even have a

. . . p art-time attorney and just to answer questions for me.” (Ellipsis in orig inal.) The officer then asked, “I s it . .

.P E T R O C E L L I V

. B A K

E R 24

what y ou’re telling me is y ou don’t want to answer any questions without an attorney ? ” (Ellipsis i n orig inal.) Petrocelli responded, “No. I just need to have something answered. T hat’s all.” The officer told him, “ W ell, we don’t have an attorney

. . . p re s en t w ith us rig ht now. L ike I indicated before if at any time y ou don’t want to

. . . an swer any questions or make a ny statements y ou don’t have to.” (Ellipses i n orig inal.) T h e officer resumed questioning

, a nd Petrocelli confessed to steal i n g cars by g oing to car lots a nd taking them for test drives. He mentioned one p articular theft from a “Dub Pet e r son” dealership in Oklahoma City

. This led the police to Powell, who testified at Petrocelli’s trial.

W h en a su s p ect invokes his F ifth Amendment rig ht to have c ounsel p resent during a custodial interrog ation, “ the interrog ation must cease un til an attorney is present.” Miranda

, 384 U.S. at 474. Police may not continue questioning a suspect without counsel present “unless the accused himself initiates further communication.” Edwards

, 451 U.S. at 484–85. Only a n unambig uous invocation of the

r i gh t to c ounsel trig g ers protection under Edwards

. A n invocation is unambig uous if the a cc u sed “articulate[ s] his desire to have counsel present suff i c i e ntly clearly that a reasonable police officer in the circumstances would understand the statement to be a r e q u es t for an attorney

. ” Davis v. United States
, 512 U .S. 452, 459 (1994). Apply ing this test, the Supreme Court h eld in D avis that the statement, “May be I should talk to a lawy er,” was ambig uous and did not constitute a request for counsel. Id. at 462.

Under Davis
, Petrocelli ’s lang uag e was insufficient to constitute an unambig uous invocation of counsel. Be c ause P e t r o c e l l i f

a i l e d t o i n v o k e h i s r i gh t t o c o u n s el unambig uously

, the April 19 interrog ation was not conductedP E T R O C E L L I V

. B A K

E R 25

in v iolation of Miranda or Edwards. Petrocelli’s trial counsel

was therefor e not ineffective in failing to move to suppress Powell’s testimony

as fruit of the interrog ation.

2. April 20 and April 27 Statements

Petrocelli contends that the use a t trial of his statements to the detectives on April 20 and April 27 violated his F ifth, Six th, and F o urteenth Amendment rig h ts. Prosecutor L a x alt

u sed Petrocelli’s statement that his killing of B arker w a s a n “accident” to impeach Petrocelli’s testimony that the W ilson shooting was also an accident. L ax alt also i mpeached Petrocelli b y confronting him with various inconsistencies between his statements and his trial testimony

.

Petrocelli contends that h e invoked his rig ht to counsel on April 19, and that his statements t a k en on that date a nd thereafter were therefore taken in violation of his F ifth a nd Six th Amendment rig hts. Petrocelli’s c o unsel was appointed

on April 20 but was not present a t the interrog ations o n April 20 and 27. Assuming without deciding that Petrocelli’s F ifth

or S i x t h Amendment rig ht was violated, the r ule is w ell established that a voluntary statement taken in violation of the F ifth or Six th Amendment may be used for impea c h ment. See Michigan v. Harvey
, 4 9 4 U.S. 344, 345–46 ( 1 990); Unit e d States v. Gomez
, 725 F .3d 1121, 1125–26 (9th Cir. 2013). B ecause the State used the statements at issue only for impeachment, Petrocelli’s contention fails.

Petrocelli nex t contends that his April 20 a n d 2 7
statements were involuntary and thus that their admission was

u n c o n s t i t u t i o n a l

. S t a t e m e n t s a re u n c o n s t i t u t i o n al l y involuntary when a “‘defendant’s will was overborne’ by the circumstances surrounding the g iving of a c onfession.”P E T R O C E L L I V

. B A K

E R 26

Dickerson v. United S t ates , 530 U.S. 4 28, 434 (2000) (quotin g S

chneckloth v. B u stamonte , 412 U.S. 218, 226 (1973)).

P etrocelli contends that his statements w ere involunt a r y because they w ere “obtained by inducements.” “I nducements
to cooperate are not improper

. . . unless under th e t o t al circumstances it is plain that they have overborne the free will of the suspect.” United States v. Okafor

, 285 F .3d 842, 8 47 (9th Cir. 2002). Here, there is no indication t h at Petrocelli’s will was overborne. B efore making s t atements

on April 20, Petrocelli told officers h e had several “preconditions.” S erg eant Dickson testified that Petrocelli

was told that they would d o what they could, but that no promises were made. His interrog ators’ par t i a l compliance with his preconditions, while p erhaps an inducement to talk, hardly constituted an overbearing of his will.

Petr ocelli also contends that his April 20 and 27
statements were involuntary because, on April 19, Serg eant B arnes told him that he thoug ht talking to the detectives “c o u l d d o

. . . nothing but help.” I n Henry v. Kernan
, 197 F .3d 1 021 (9th Cir. 1999), we held that a confession was involuntary when the interrog ating officer ig nored a suspect’s clear invoca t i o n o f his rig ht to counsel and stated, “L isten, what y o u tell us we c an’t use ag ainst y ou rig h t now.” Id. at 1027. W e noted that the officers’ refusal to cease questioning in the face of repeated requests for counsel “g enerate[ d] a feeling of helplessness” a nd that the o fficers deliberately violated Miranda in order to o b t a in a statement they could use for impeachment purposes. Id. at 1028–29.

T h e circumstances of the Henry interrog ation a re sig nifi c a n t l y d i f f e rent from those of Petrocelli’s interrog ation.P E T R O C E L L I V

. B A K

E R 27

As discussed above, Petrocelli never clearly invoked his rig ht
to counsel on April 19. W h en Petrocelli was asked if h e was requesting a lawy e r , he responded “no.” Th e o f f i cers’ attempts to clarify whether Petrocelli was invoking his rig hts differentiate the April 19 interrog ation from the Henry interrog ation, both because they likely reduced the feeling o f hel p l e s s n e ss that concerned us in Henry and because they
sug g est the detectives were not attempting deliberately to violate Miranda

. Considering t h e t o tality o f the circumstances, Serg eant B arnes’ remark was not sufficiently coercive to r e nder Petrocelli’s April 20 and 27 s tatements involuntary

.

3. J ury I nstruction on Premeditation and Deliberation

Petrocelli contends that t h e jury instruction d efining “premeditation” and “deliberation” violated due process b y collapsing the two requirements and relieving the State of its burden of proving that the killing w as b o th deliberate a nd premeditated. See Byford v. S tate , 994 P. 2 d 700, 712–15 (Nev. 2 000); P olk v. Sandoval

, 503 F .3d 903, 9 1 0–11 (9th Cir. 2007), overruled in p art by Babb v

. Lozowsky

, 719 F .3d 1019, 1028–30 (9th Cir. 2013). T h e district court concluded that Petrocelli had n ot ex hausted this claim a nd r equired Petrocelli either to abandon the claim or risk dismissal of his
p e t i tion. F aced with this choice, Petrocelli filed a notice o f abandonment “of all unex hausted claims.” Petro c elli

co n t e n d s that the district court e r roneously determined that the claim was unex hausted.

“Ex haustion requires the petitioner to ‘fairly present’ his claims to the hig hest court o f the state.” Co oper v. Neven
, 641 F .3d 322, 326 (9th Ci r. 2 0 1 1) ( q uoting O’Sullivan v

. Boerckel

, 526 U.S. 838, 848 ( 1 99 9 ) )

. P etrocelli raised thisP E T R O C E L L I V

. B A K

E R 28

jury instruction claim in his third state habeas petition, but he did not appeal the state district court’s denial of the claim to the Nevada Supreme Court. Petrocelli arg ues that his failure
to appeal to the Nevada Supreme Court should be ex cu s ed

, c o n tending that he could not have r aised the claim until o u r decision in Polk in 2007, when we held that a jury instruction collapsing the premeditati o n a n d deliberation elements o f first-deg ree mur d e r violates the Due Process Clause. Polk

, 503 F .3d at 9 0 4

. T his arg ument is unpersuasive in lig ht o f Petrocelli’s having r aised this claim in the state district court, before we decided Polk

, and in lig ht of his assertion that this claim was based “ on c learly e st a b l i s hed and long ex isting feder a l l a w , namely Sandstrom v. Montana
, 442 U.S. 510 (1979) and Francis v. Franklin

, 471 U.S. 307 (1985).”

B . Penalty

Phase E stelle Claim

Petrocelli makes several penalty phase claims. I n one o f them, he contends that Dr. Gerow’s testimony violated his F ifth and Six th Amendment rig h ts, artic u l a t e d in E stelle v

. Smith

, 451 U.S. 454 (1981). W e ag ree w ith this contention, and on that basis g rant the writ a s to the death penalty

. W e therefore do not reach Petrocelli’s other penalty phase claims.

1. W aiver

The district court held that Petrocelli’s Estelle claim was neither unex hausted nor procedurally defaulted, and that the Nevada Supreme Court denied it on the merits. On a ppeal to
us, the State does not contest this ho l d ing

. See Robinson v

. Lewis
, 795 F .3d 9 26
, 9 3 4 ( 9th Cir. 2 015) (holding that a p e titioner waived an arg u ment by failing to dispute t h e district court’s r e

j e c t i on of the arg ument in his b riefing on appeal).P E T R O C E L L I V

. B A K

E R 29

Petrocelli spends six p ag e s o f h i s opening brief to us arg uing that the admission of Dr. Gerow’s testimony v iolated Estelle

. The State does not respond to Petrocelli’s Estelle
arg ument. I n n either its answering brief nor its supplemental brief does the State so much as cite Estelle

, let alone respond
to Petrocelli’s arg ument. We therefore conclude that the State h as waived any d efense to Petrocelli’s Estelle arg ument.

2. Estelle

Even if the State had not waived its defense to Petrocelli’s Estelle a rg ument, we would hold t h at the admission of Dr. Gerow’s testimony violated Estelle and that the violation was not harmless.

a. Estelle Violation

I n Estelle

, Dr. J ames Grig son was appoin t ed b y a Tex a s trial court to ex amine capital defendan t Ernest Smith to determine his c ompetency to stand tria l

. Grig son ex a mined Smith for a

bout ninety minutes and deter m i n e d that he was competent. G rig son g ave no M iranda warning t o S mith during the course of the ex amination. At t h e t i m e of the

ex a mination, Smith’s Six th Amendment rig ht to counsel h ad attached. Grig son did not notify S m i t h ’ s a ttorney that he would ex amine his client.

Dr. Grig son testified, over objection, during t h e penalty phase o f Smith’s trial as to h i s f u t u re dang erousness. He testified that Smith was “a very severe sociopath”; that Smith “will continue his previou s behavior”; that Smith’s sociopathic condition will “only g e t worse”; and that there “ is

no treatment, no medicine

. . . that in a ny way at all modifies or chang e s this behavior.” 451 U.S. at 459–60 (alteration inP E T R O C E L L I V

. B A K

E R 30

orig inal) (internal quotation marks omitted). T h e jury returned a verdict of death.

The Supreme Court held that Dr. G rig son’s testimony

v iolated the F ifth and Six th Amendments. The Court h e l d that the F ifth Amendmen

t privileg e ag ainst self-incrimination
app lied, and that Miranda warning s w ere required because “Dr. Grig son’s prog nosis as to f uture dang erousness rested on statements [ Smith] made

. . . in r eci t ing the details of the crime.” Id. a t 464. “W hen D r. Grig son went bey ond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue o f respondent’s future d a n g erousness, his role

. . . became essentially like that of an ag ent of the State.” Id. at 467. The Court h eld that the Six th Amendment rig ht to counsel a pplied because “adversary judicial proceeding s” had been i n i t iated
ag ainst Smith, and that Grig son’s interview was a “ c r itical stag e” of the proceeding s. Id. at 4 6 9

– 7 0

. “[ Smith] was denied the a s s i s t ance of his a ttorney s in making the sig nificant decision of whether to submit to the ex amination and to what end the psy chiatrists’s finding s could be employ e d.” Id. at 471.

Estelle was decided in May 1981. Dr. Gerow interviewed Petrocelli in W ashoe County J ail almost a y ear later, in April 1982. Petrocelli’s trial took place d uring the last week of J uly and first week of Aug

ust 1982.

I n addressing Petrocelli’s third petition for postconviction relief, the state district c ourt heard testimony from Dr. Gerow and from d ef

e n se counsel W ishart, and received into evidence the W ashoe Count y J a i l visitors’ log a nd Gerow’s April 27 l e t ter to Prosecutor L ax alt. I n r e jecting a claim of ineffective ass i stance of counsel, the court madeP E T R O C E L L I V

. B A K

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factual finding s d irectly relevant to Petrocelli’s Estelle c laim

. The court wrote:

Th e s e quence of events appears to be a s f o llows: Petitioner soug ht a psy chiatrist o n April 20, 19 8 2

. L ax alt b riefed Gerow on April 21, and on that date, [ Gerow] interviewed the Petitioner. Defense Attorney W i s h a r t a n d I n v e s t i g a t o r F o r d a l s o interviewed Petitioner on A pril 2 1
, 1982

s ubsequent to an appointment in the justice
court on that date. I t is n ot clear a s to whether the doctor or the lawy er a r rived at t h e jail first.

The c ourt w rote, further, “Dr. Gerow a n d P r o s ec utor L a x alt

are not entirely clear n or consistent about the p u r p ose for which the doctor was hired. However, Gerow makes it clear that he informed Petitioner that the interview wa s not confidential and that he would see Petitioner ag ain on an asneeded basis.” The court concluded:

Dr. G erow’s understanding of his eng ag ement

was to determine Petitioner’s competency a nd
to render some further treatment.

. . . No reasonably effective trial or appellate counsel would conclude from this re c o r d that Dr. Gerow was a court-authoriz ed psy chiatrist nor an ag ent for the prosecutor.

The state d istrict court’s f

inding s are “not fairly supported by the record” and thus are not entitled t o a p r e s u mption o f
correctness. Silva

, 279 F

. 3d at 8 35 (quoting former 2 8 U .S.C.P E T R O C E L L I V

. B A K

E R 32

§ 2254(d)(8)). I ndeed, its finding s a r e demonstrably wrong in nearly every particular.

F irst, it is not true tha t c o unsel for Petrocelli was

a p p o inted on April 21, the day of Dr. Gerow’s intervi e w

. Rather, the appointment w a s made the day before, on April 20.

Second, it not tr u e t hat there is an ambig uity “as to whether the doctor o r the lawy e r arrived at the jail first.” The vi s i t o r s ’ log at the W ashoe County J ail is unambig uous. Defense attorney W ishart and in v e stig ator F ord sig ned the visitors’ log at about 1:50 pm. T h ey left at about 2:20 pm. Dr. Gerow sig ned the visitors’ log at about 3:50 pm.

T hird, it is not true that “[ n] o reasonably effecti v e

. . . counsel would conclude

. . . that Dr. Gerow was

. . . a n ag ent for the prosecutor.” G e r o w w rote “D.A.” in the “relationship” box of the visitors’ log

. W ishart knew G erow well. He testified in p ost-conviction proceeding s that G erow had a “prosecution bias,” and that he never would have hired him.

F ourth, it is not true that Dr. G erow “ ma[ de] clear that he informed Petitioner

. . . that he would see Petitioner ag ain on

an as-needed basis.” Gerow informed Prosecut o r L ax alt in his A pril 27 lette r that he would see Petrocelli on an “‘as needed’ b asis.” G erow testified in state court post-conviction proceeding s that he meant “as needed by Mr. Laxalt .”

F ifth, it is not true that “Dr. Gerow’s understanding o f his

e n ga g ement was

. . . to render some further treatmen t

. ” Ge r o w never had any u nderstanding that he would provide
treatment to Petrocelli. Petrocelli was under the illusion thatP E T R O C E L L I V

. B A K

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Gerow had come to see him in response to h i s r eq uest for
psy chiatric counseling

, but G erow w as under no such i llusion.

The f acts are that Pro s e c u t or L ax alt asked Dr. Gerow to visit Petrocelli in the W a s h o e C ounty J ail to determine his competency to stand tr i a l. G erow interviewed Petrocelli in the jail in the late afternoon of A pril 21, shortly a fter defense attorney W ishart and investig ator F ord had visited him. The Reno J u stice Court had appointed the W ashoe County Public Defender’s office as counsel for Petrocelli the day before, on April 20. W ishart and F ord’s names and sig natures were on li n e t h re e of the visitors’ log of the jail, with the notation “W CPD/ATT.” Gerow sig n e d in as a visitor on line four of the same p ag e with the notation “D.A.” W ishart’s n ame a nd capacity would have been ea sily v isible to Gerow when he sig ned in. Gerow never soug ht p erm i s s i o n from W ishart to evaluate Petrocelli. L ax alt never asked Gerow to provide
treatment to Petrocelli, and G erow never p r o v ided any

. On April 27, Gerow wrote a letter to L ax al t r e p orting that he believed Petrocelli to be competent, and volunt e ered to provide further assistance to L ax alt “as needed.” G erow testified d u ring the penalty phase o f Petrocelli’s capital trial. He testified, b ased on his interview with Petrocelli on April 21, that Petrocelli w as dang erous and not treatable. Gerow’s f i nal words during direct ex amination were, “There is no cure.”

The parallels between E

stelle and this case are striking

. Dr. Grig son, like Dr. Gerow in this case, visited the defendant in jail to determine his competency to stand trial. G rig son, like G erow, failed to provide Miranda warning s. G r ig son, like Gerow, was acting as an age n t of the state. I ndeed, the

case ag ainst Gerow’s testimony is e v en strong er than ag ainst Grig son’s, for Grig son w a s a ppointed by the c ourt, whereasP E T R O C E L L I V

. B A K

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Gerow w a s a cting at the request of the prosecutor. The defendant in Estelle

, like Petrocelli, already had appointed counsel. G rig so n , l i k e G erow, did not seek or obtain
pe rm i s s ion from defendant’s c ounsel to visit or evaluate his

c lient. G rig son, like Gerow, testified during the pe n a l t y phase of defendant’s trial that the defendant was incurable.

W e conclude from the foreg oing that the admission of Dr. Gerow’s testimony during the penalty phase of Pet r o celli’s trial was a flag r ant viola t i on of his F ifth and Six th Amendment rig hts under Estelle

. 1

b. Harmless Error

An “error of the trial t y p e ” is not harmless if it “had

su bstantial and injurious effect or influence in d etermining the jury ’ s verdict.” Brecht v. Abrahamson

, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States
, 328 U.S. 750, 776 (1946)). “There must be more than a ‘reasonable p ossibility ’ that the error was harmful.” Davis v

. Ayala

, 135 S. Ct. 2187, 2198 (2015) (quoting Brecht

, 5 07 U.S. a t 637). “[ R] e lief is appropriate on l y if the p rosecution cannot demonstrate harmlessness.” Id. at 2197. W here a judge “ i s i n ‘g rave doubt as to the h armlessness of the error, the h a b e a s petitioner must win.’” P e nsinger v. Chappell

, 787 F .3d 1014, 1029 (9th Cir. 2015) (quoting California v. Roy , 519 U.S. 2,

1 Ev en if t h e i n t ro d u ctio n o f Dr. Gero w ’ s testim o n y co u ld b e

u n d ersto o d as a reb u

ttal o f P etro celli’ s p sy ch o lo gi c a l ev i d en ce th at

su g g ested th at P etro celli w o u l d b en ef it f ro m treatm en t, see Bu ch a n a n v. Ken tu cky

, 4 83 U.S. 4 0 2
, 42 2

– 2 3 (1 98 7), th e ad m issio n o f th e testim o n y

w o u ld still v io late th e Six th A m en dm en t b ecau se P etro celli’ s co u n s e l

n ev er receiv ed n o t i c e o f th e ex am i n atio n , see Po well v. Texa s , 4 9 2 U .S. 6 8 0 , 6 8 5 (1 9 8 9 ) (p er cu riam ).P E T R O C E L L I V

. B A K

E R 35

5 (1996) (per curiam)). W e conclude that the Estelle error was not harmless.

The jury kn e w that Petrocelli had c ommitted two murders. He was on tria l f or murdering J ames W ilson, a nd
t h e jury had been told that he had also murdered Melanie B arker. Maureen L awler, B arker’s mother, testified at the penalty phase as to the circumstances of the three-day kidnaping in W ashing ton State. Petrocelli was death-elig ible because w hen he killed W ilson he h ad already been convicted of kidnaping B arker. The jury had ample basis, b o t h leg al and emotional, for imposing a c a pital sentence. The question b e f o r e us is whether it would have done so absent Dr. Gerow’s testimony

. The p recise q u e s t ion is whether there

was “more than a ‘reasonable possibility ’” that the jury would have imposed a life sentence if it had not heard Gerow’s testimony

. Davis
, 135 S. Ct. at 2 1 9 8 (quoting Brecht

, 507 U.S. at 637). The burden is on the State to demonstrate that there was not such a possibility

.

I n any c apital case, particularly if a defendant mig ht eventually be released f

rom prison, a cen t r a l q

u estion at sentencing is whether the d e f endant is likely to kill ag ain. W e put to one side the r epo r t o f Dr. Petrich, who evaluated Petrocelli before he k illed W ilson and B arker. Not counting Petrich’s r eport, ther e was evidence from three medical professionals who diag nosed Petrocelli, assesse d h is dang erousness, and evaluated his amenability to treatment.

Dr. Gutride reported that Petrocelli “cried openly ” during his interview, and t h a t his “ distraug ht behavior had the quality of his p ractically beg g ing for help.” H e reported that P et rocelli “ desperately want[ e d] to know what is the matter with him” and told Gutride that he had “called crisis lines inP E T R O C E L L I V

. B A K

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every city

, but [ had] been unable to g et any help.” Gutride observed that “[ t] he p ersonal distress [ Petrocelli] e x hibited during the interview seems g e nuine” and that Petrocelli “may
t r u ly d esire some mental health treatment.” G utride w ro t e that Petrocelli’s “abilit y to profit from such treatment is questionable” because o f his dis t r ust of others, a nd he

con c l u d e d that “treatment should be offered in a setting where t h e client can be closely monitored.” I n his live testimony

, Gutride stated that h is diag nosis did not “imply an individual is unable to think properly or conduct themselves conventionally . I t relates mostly to a sty le of living

. ”

Dr. Chappel reported that Petrocelli “repeatedly asked for help” while in jail in Seattle and that Petrocelli attempted to commit suicide while there. Chappel reported that Petrocelli “viewed the ex perience as o ne o f a sking for h elp and not g etting it.” Petrocelli “ex press e [ d] a wish f or f urther evaluation or treatment so he [ c o uld] find out whether or not he k illed on p urpose.” Chappel concluded that “ a more

ex tensive evaluation” would be useful in order for Petrocelli “to have a better understanding of the reasons for h is loss of impulse control and his reason for killing someone who was close to him.” Chappel w ro t e that “ [ a] period of evaluation

a n d a trial of treatment mig ht serve a useful purpose i n preventing any further homicidal outbursts o f r a g e o n his part.”

Bo t h Dr. Gutride and Dr. Chappel concluded th at Petrocelli w a nted mental h ealth treatment, and that he felt that he had sough t an d b een denied such treatment. B oth doctors held out the p ossibility o f treatment. G u t r i de

a c k nowledg ed that Petrocelli’s ability to p rofit from tre a t m e n t

was “questionable” because of his dis t r u s t of others, but he did not state that Petro c e l l i w as u ntreatable. Rather, heP E T R O C E L L I V

. B A K

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recommended that Pet rocelli be “closely monitored” during
treatment. Chappel stated that treatment could be useful both for Petrocelli’s own understanding and in order to prev e n t “further homicidal outbursts.”

Dr. Gerow’s testimony w as inconsistent with the reports of D rs. Gutride and Chappel. Gerow stated unequivocally that Petrocelli was dang e r o u s and would alway s r emain so. He testified that Petrocelli h ad a psy chopathic personality for which there i s “ n o treatment at all.” He elaborated, “A
psy chiatrist doesn’t treat the condition because it’s not trea t a b l e.” Gerow’s last words on direct ex amination were, “There is no cure.”

Dr. Gerow’s live testimony likely had a g reater impact on the jury than the analy ses of Drs. Gutride and Chappel. Defense counsel W ishart chose not to put G utride a nd Chappel on the stand, submitting only their written r e p o r ts. Prosecutor L ax alt called Gutride to the stand in an attempt to undermine his diag n osis and assessment of dang erousness on the g round that Petrocelli had “faked ‘bad’” w h e n t aking formal intellig ence tests. Gutride insis t ed that h is diag nosis

was correct, and that the diag nosis d i d not “imply an individual is unable to think properly or conduct themselves conventionally .” Gutride’s live testimony was very short,
occupy ing n ot quite t w o p a ges of transcript. His testimony

was followed directly by Gerow’s more ex tensive live testimony that conflicted with G utride and Chappel’s written reports and Gutride’s brief t e s t i m ony

. See Satterwhite v

. Te xa s , 4 86 U.S. 2 49, 259–60 ( 1988) ( referring to a psy chiatrist’s testimony that defendant was “bey on d

. . . rehabilitation” as his “most devastating ” statement).P E T R O C E L L I V

. B A K

E R 38

The e ffect of Dr. Ger ow’s testimony was mag nified b y J ury I nstruction 5, quoted above. J u ry I nstruction 5 indicated
to the jury that even if it sentenced P e t r o c e l li to life without parole, he mig ht nonetheless be released by the Nevada B oard of Pardon Commissioners. 2 Prosecutor L ax alt made sure that the jury understood the implications of J ury I nstruction 5. I n closing arg ument h e emphasiz e d Dr. Gerow’s testimony that Petrocelli was an incurable psy chopath, and the possibility o f Petrocelli’s release on parole:

He will n ever chang e. T here is no cure for being a psy chopath.

. . . Should the community bear t h e risk of ever having this defendant on the street ag ain, walking free, on the run?

. . .
[ N] o society

, no co m m unity

, no county , no c i t y , no state, should ever have to risk
ag ain Tracy

Petrocelli on the street.

. . .

I ask y o u to consider y e ars down the road when the d ecisions are being mad e at the Pardons B oard and the Parole B oard and we

2 In S ech rest v. Ig n a cio
, 54 9 F .3 d 7 8 9
, 8 1 0 (9 th Cir. 2 0 08 ), w e h eld in a N ev ad a cap ital case th at an in stru ctio n id en tical to J u ry In stru ctio n 5

w as u n co n stitu

tio n al b ecau se it w as i n accu rate. A t th e tim e o f Sech rest’ s trial, “ an in d iv id u al w

h o [w as] o n p ro b atio n at th e tim e h e co m m it[ed ]

an o th er o ffe n s e

. . . [w as] n o t elig ib le f o r p aro le b y th e P aro le B o ard on th at o f f en s e.” I d

. a t 8 1 0

. W e d o n o t reach th e q u estio n w h eth er J u ry In stru ctio n

5 w as co n stitu

tio n al at th e tim e o f

P etro celli’ s trial.P E T R O C E L L I V

. B A K

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have all g one our separate way s a nd M r. Petrocelli i s there, the sole person a pply ing for the pardon or a

pply ing f or p arole cry

ing
tears of remorse a

nd telling the people how it wasn’t he who wa s t he murderer of Mr. W ils o n it was an accident and he g ot railroaded, and telling people that it wasn’t he who was the murderer of Me l a n i e it was an accident, and he wa s railroaded.

. . . Rehabilitation to b e imposed in this case? That’s a sad fact, but it’s to be faced.

I t is possible that Petrocelli has not p reserved, on appeal to us, his ability to challeng e the district court’s dismissal of Claim 4
, challeng i n g J ury I nstruction 5. B ut whether Petrocelli may now c halleng e the instruction is irrelevant to the harmlessness of the Estelle violation

. I n d etermining h a r mlessness, the q

uest i o n b e f

o r e u s i s n o t t h e constitutionality of the instruction but rather its e ffect on the improper admission o f Dr. Gerow’s testimony

. Whether J ury I nstruction 5 is constitutional or n ot, its effect on Gerow’s improperly admitted testimony is the same.

W e have encountered Dr. G erow before. He testified for the p rosecution in Sechrest in very much the same manner he testified for the pro s e c ution in the case before u s. G erow testified that Sechrest “was an incurable sociopath” who was “ex tremely dang erous and c oul d n ot be rehabilitated.” Sechrest

, 549 F. 3 d a t 813. We held in Sechrest that the combined effect of Gerow’s testimony and a n instruction identical to I nst ruction 5 “had a substantial influence on the jury ’s decision to sen t e n c e S echrest to death.” Id. W e similarly conclude, in this case, that G erow’s impro perly admitted testimony

, understood in the lig ht of J ury I nstructionP E T R O C E L L I V

. B A K

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5, “had [ a] subst a n t i a l a

nd injurious effect or influence in determining the jury ’ s verdict.” Brecht

, 507 U.S. at 637 (quoting Kotteakos

, 328 U .S. at 7 76). B ecause t here was “more than a ‘reasonable possibility ’” that the jury would have imposed a life sentence absent the Estelle error, the error

was not harmless. Davis
, 135 S. Ct. at 2198 (quoting Brecht

, 507 U.S. at 637).

Conclusion

W e affirm the district court’s deni a l o f Petrocelli’s petition for a wri t o f habeas c orpus with respect to the

c o n v i c tion, b ut r everse w ith respect to the death sentence. W e remand with in s t r u c t i o ns to g rant the writ as to the penalty u n l e s s , within a reasonable time, the State g r a nts a

new penalty phase trial o r imp o ses a lesser sentence consistent with the law.

AF F IRMED in p a rt, REVERSED in part, a nd REMANDED.

CHRI STEN, Circuit J udg e, concurring :

I ag r ee that Petrocelli’s death sentence must be reversed. I write separately because, in my view, even if the State could show t hat the prosecutor’s tactics had not prejudiced the jury ’s verdict, Petrocelli’ s c a se is o ne of the very few in which deliberate prosecutorial misconduct and eg reg ious trial

errors warrant habeas relief. S ee Br e cht v. Abrahamson

, 507 U .S. 619, 638 n

. 9 ( 1993) (stating that a d eliberate a nd especially eg reg ious trial error, or one that is combined with

a pattern o f p rosecutorial misconduct, mig ht warrant habeasP E T R O C E L L I V

. B A K

E R 41

relief, e v e n if the jury ’s verdict is not substantially influenced). B r e cht ’ s footnote nine is r arely employ ed, but the F ifth and Seventh Circuits have each relied on it one time in cases where an error (or errors) did not easily fit into either the “structur a l e r ror” or “trial error” categ ory

. The e rrors in Petrocelli’s c ase were eq u a l l y pervasive, flouted Supreme Court authority

, and undermined the integ rity of the criminal justice process.

Tracy Petrocelli’s trial, from voir dire to the death penalty verdict, lasted just ten da y s (J uly 26–30, 1982; Aug ust 2–6, 1982). T he p enalty phase took one day

. The introduction o f evide n c e b ega n at 11:30 AM on Aug ust 6, and the jury ’s verdict, a death sentence, was re t u r n ed at 1 0:52 PM. The defense i n troduced brief psy chiatric reports but o nly called Petrocelli to testify

. The prosecution c alled Dr. G er o w, a psy chiatrist, to testify about Petrocelli’s mental condition. The majority opinion thoroug h ly and p e rsuasively ex plains how the p rosecutor procured Dr. Gerow’s testimony a nd why the p rosecutor’s conduct was a flag rant v iolation of Estelle v

. Smith

, 451 U.S. 454 (1981) (holding that a p sy chiatrist’s testimony about the defendant’s future da n ge r o usness in a capital f elony trial viola t e d the defendant’s F ifth and Six th Amendment ri gh t s where the defendant was not g iven Miranda warning s before his psy chiatric ex amination).

A separate lay e r of error also i n f e c t ed this trial because the State’s Estelle violation dovetailed with an inflammatory jury instruction. Specifically

, the trial court told the jury that “[ u] nder t h e l aws of the State of Nevada,

. . . [ t] he State B oard of Pardon Commissioners

. . . would have the p ower to modify a ny sentence at a later date.” The prosecution told the jury that Petrocelli mig ht someday walk the streets “ [ a] mong ordinary people” and “kill ag ain” if the jury did not sentenceP E T R O C E L L I V

. B A K

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him to death. The contex t a nd nature of these combined

errors and misconduct so infected th e integ rity of the proceeding s as t o defy categ oriz ation and the ty pical harmlessness analy sis.

Brecht ’s h a r m less-error standard a pplies on collateral review of f

ederal c o nstitutional trial errors. See Brecht

, 507 U.S. at 622. Ty

pically

, “[ t] rial error ‘occur[ s] during the presentation of the case to t h e j u r y ,’ and is amenable to harmless-error analy sis because it ‘may

. . . be quantitatively assessed in the contex t of o t her evidence presented in order
to determine [ the effect it had on the trial] .’” Id. at 629 (alterations in orig inal) (quoti n g Arizona v. Fulminante

, 499 U.S. 279, 307–08 (1991)). Prosecutorial misconduct is trial error. See W

ood v. Ryan
, 693 F .3d 1 104, 1113 (9th Cir. 2012). “At the o ther e nd o f the spectrum of consti t u t i o n al

errors lie ‘structural defects in t h e constitution of the trial mech an i s m, which defy a naly sis by harmless-error standards.’” Brecht

, 507 U.S. at 629 (quoting Fulminante

, 499 U .S. at 309). Structural errors, such as the deprivation o f the rig ht to counsel, “infect the entire trial process” a nd require automatic reversal of the c o n v iction. Id. at 629–30;

see also H

ardnett v. Marshall

, 25 F .3d 875
, 8 7 9 (9th Cir. 1994) (stating that u n like trial errors, structural errors “may not be considered harmless”).

“Not every error, h owever, is easily shoe-horned into o ne of those neat categ ories.” U nited States v. Harbin , 250 F .3d 532, 544 (7th Cir

. 2 0 0 1 )

. “The nature, contex t, a nd sig nificance o f the violatio n , for instance, may determine whether automatic reversal o r the harmless erro r a n al y sis is appropriate.” Id. (internal q uotation marks and ci tation omitted). I n f

ootnote nine of B recht

, the Supreme Court left
open the possibility “that in a n unusual c ase, a deliberate a ndP E T R O C E L L I V

. B A K

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especially eg reg i ous error o f the trial ty pe, or o ne that is combined w ith a pattern of prosecutorial misconduct, migh t

so infect the integ rity of the p roceeding as to warrant the
g rant o f habeas relief, even if it did not substantially influence the jury ’s v erdict.” 50 7 U.S. at 638 n.9. “This hy b rid, [ f] o otnote [ n] ine error a s we denominate it, is thus assimilated to structural error and d eclared to be incapable o f redemption by actual prejudice analy sis.” Hardnett

, 25 F .3d
at 879. “The integ rity of the trial, h a v i n g been destroy ed, cannot be reconstituted by an appellate court.” Id.

I n Petrocelli’s case, the first error a r o s e when the prosecutor u sed a psy chiatrist to interview Petrocelli without i n f o rming his lawy er or advising him of his rig ht to rema i n silent. The Supreme C o u r t held in E stelle that the prosecution may not rely on statements made by a defendant d u r i n g a psy chiatric ex amination t o p r o v e f u t u r e dang erousness if the defendant w as not a p p r i s ed of his Miranda rig hts and was denied the a ssistance of his counsel in deciding whether to submit to the ex a mination. 451 U.S.
at 467–71 (“W hen Dr. Grig son went bey ond simply reporting
to the court o n the issue of comp e tence and testified for the prosecution at the p enalty phase on the crucial iss u e o f respondent’s f

u t ure dang e rousness, his role chang ed a nd be ca m e e ssentially like that o f an ag ent of the State recounting u nwarned statements made in a postarrest custodial setting .”). Decided i n M a y of 1981, Estelle h ad been on the books for a

bout a y ear when the state p rosecutor enlisted Dr. G e r o w to interview Petrocelli, and it had been controlling law for about fifteen months by the time the prosecutor called Dr. G erow to testify

. Despite Estelle’ s clear rule that the g overnment may not c ircumvent Miranda b y

u sing a health care professional as an ag ent to interview a defendant without the benefit of defense counsel, theP E T R O C E L L I V

. B A K

E R 44

prosecutor respon d e d to Petrocelli’s request f or psy chiatric help by sending Dr. Gerow to the jail to interview Petrocelli under the pretense of p roviding mental health c ounseling

. There is no question that the prosecutor’s g oal was to use the result o f the interview to prosecute Petrocelli, not to respond
t o Petrocelli’s request for mental health counseling. T h e prosecutor later said as much, a s did Dr. Gerow. I t is equally clear that Petrocelli could not have anticipated that the doctor would testify for the prosecution.

I n state post-conviction proceeding s, the p rosecutor testified and ag reed that h e as ked Dr. Gerow to interview Petrocelli b ecause h e was c oncerned about a possi b le competency or insanity defense. The prosecutor testified that he “wan t [ e d ] to see what ma[ d e] [Petrocelli] tick,” a nd also candidly admitted that he sent Dr. Gerow to interview Petrocelli for “a dual purpose.” A ccording to the prosecutor,

“ M r

. P e trocelli wanted to see a counselor, a psy chiatrist. I wanted him to be seen by one in order t o make sure that we had a c ompetent defendant.” The prosecuto r selected Dr. Gerow, as o pposed to another p sy chiat ri s t o r psy cholog ist, because he “had a lot of trust in Dr. Gerow.” Despite the rule from Estelle

, the prosecutor recalled t h a t he had not instructed D r. G erow to tell Petrocelli that he was there at the request of the prosecution, that h e h a d not instructed Dr. Gerow to advise Petrocelli of his Miranda rig hts, a nd that he had not instructed D r. Gerow about what to do if Petrocelli mentioned that he w as represented by counsel—all because Dr. Gerow w as supposedly seeing Petroc e l l i “jointly

. ” Althoug h the prosecutor described the interview as having a “dual purpose,” defense counsel L awrence W ishar t denied that there was any joint defense purpose for the interview. He

was not informed of the i n t e r view, nor consulted about the selection o f the ex p ert. I n fact, W ishart w as familiar with thisP E T R O C E L L I V

. B A K

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psy chiatrist, and he testified that he would not have hired Dr. Gerow b e c a use he thoug ht Dr. Gerow had “a prosecution bias.”

Dr. Gerow also testified in the p o s t-conviction proceeding s. He described conferring with the prosecutor b y telephone before meeting with Petrocelli, and acknowledg ed that he met with Petrocelli on A pril 21, 1982, at the prosecutor’s request, to determine whether Petrocelli was competent to stand t r i al and to assess Petrocelli’s ability to disting uish rig ht from wrong

. Dr. Gerow doubted very much th a t t h e prosecutor instructed him to a dvise Petrocelli of his Miranda rig hts, a n d h e w a s definite in h is testimony that he d i d n o t do so. He also confirmed that when he wrote in h i s one-pag e letter report to the prosecutor that he would see Petrocelli ag ain “as needed

, ” h e meant as needed by the prosecution, not a s needed by Petrocelli. 1 I n short, the record shows that Dr. G erow’s interview w ith Petrocelli had no therapeutic purpose; it w a s arrang ed to advance the prosecution’s case in blatant violation of Estelle

.

1 Dr. Gero w ’ s rep o rt v erif ies th at h e ex am in ed Petro celli at th e p ro secu to r’ s req u est, th at P etro celli w as co o p erativ e an d an ab le h i s to rian

, an d th at a m en tal statu s ex am in atio n w as p erf o rm ed

. In s e v e n l i n es of
tex t , a si n g l e p arag rap h su m m arizes Petro celli’ s so cial h isto ry f ro m ch ild h o o d, h is m en tal h ealth h isto ry f ro m ch ild h o o d , an d th e im p ressio n th at h e w a s no t p sy ch o tic w h en in terv iew ed

. T h e letter th en d eem s P etro celli co m

p et e nt to stan d trial, an d states th at Dr. G ero w w ill see P etro celli ag ain

o n an “ as n eed ed ” b asis.P E T R O C E L L I V

. B A K

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The pro secution ex p loited its Estelle violation to full advantag e at trial. 2 Having interviewed Petrocel l i without informing him of his M

i r a n d a rig hts and without notify ing Petrocelli’s counsel, D r

. Gerow told the jury that he h ad d i ag nosed Petrocelli as “a psy chopathic.” He testified t h at althoug h the “violence potential” of psy chopaths “varies,” the
most c o n c erning traits associated with psy chopaths (incurability

, c allousness, a hig h p ropensity for violence) “describe[ ] [ Petrocelli] quite well.” Dr. Gero w ’ s last
statement o n d i rect ex amination w ent to Petrocelli’s future dang erousness. He told the jury : “ There is no c ure.” The prosecution’s closing arg ument summariz ed the reports o f the doctors who had evaluated Petrocelli, but relied most heavily

on Dr. G e r o w ’s testimony

. The prosecutor a dopted Dr. Gerow’s terminolog y , referr i n g t o Petrocelli as “a

. . . psy chopathic,” and ended h i s r emarks about Petrocelli’s “psy chopathic” diag nosis by say ing : “And we can g o to Dr. Gerow.

. . . [ T] he sad a nd terrify ing fact is [ Petrocelli] will continue to do this.”

2 T h e State relies h eav ily o n th e N ev ad a Su p rem e C o u rt’ s ru l in g th at

ev en if P etro celli h ad p ro p erly p r eserv ed h is claim th at Dr. G ero w ’ s in terv iew v io lated Mira n d a v. Arizo n a , Petro celli fa i l e d to sh ow t h at i t p rej u d iced h im in lig h t o f o th er co m p ellin g testim o n y ab ou t f u tu re d an g ero u sn e s s. T h e State also rep eats t h e Nev ad a trial co u rt’ s f actu al

e r ro rs an d raises m o st o f th e arg u m en ts t h at th e m aj o rity o p i n i o n ad d resses: (1 ) th e in co rrect statem en t th at P etro celli h ad n o t y et b een ap p o in ted co u n sel w

h en Dr. Gero w in terv iew ed h im ; (2 ) th e i n co rrect statem en t t

h at Dr. Gero w in f

o rm ed P etro celli t

h at h e w o u ld s ee h im ag ain

o n an “ ‘ as n eed ed ’ b asis”; (3 ) th at it i s n o t en tirely clear f o r w h at p u rp ose Dr. Gero w saw P etro celli (p erh ap s n ot as an ag en t o f t h e p ro secu to r); an d (4 ) th at an y erro r w as h arm less b ecau s e “ [t]h e j u ry h eard oth er co m p ellin g

ev id en ce ab o u t P etro celli’ s v io l en t p ro p en sities d u rin g th e g u ilt p h ase of h is trial.” L ik e th e m aj o rity

, I co n clu d e t h at th e State h as n o t raised an y p ersu asiv e d ef

en se to th e alleg ed Estelle v i o latio n

.P E T R O C E L L I V

. B A K

E R 47

To make matters worse, the prosecutor emphat i c a lly

, repeatedly

, and definitively emphasiz ed that Petrocelli could someday be released if the jury did not sentence him to death. The prosecutor asked the jury : “Should the community bear the risk of ever having t h i s d e f endant on the street ag ain, walking free, on the run? ” He elaborated:

W h at psy chopath means, essentially

, is a mean, bad p erson who has never chang ed a nd who will continue to victimiz e

. . . . [ N] o society

, no community

, no county , no city

, no state, should ever have to risk ag ain Tracy Petrocelli on the street. They should not have
to risk their fathers or daug hters, or their bro t h ers or themselves, that he mig ht take a fancy to killing them as he ha s d o ne, as y ou see from the people in this case . . . .

I n his rebuttal, the prosecutor continued:

B u t ladies and g entle m en, I ask y ou to consider y e ars down the road when the decisions are being made at the Pardons B o ar d a n d the Parole B oard and we have all
g one o ur s eparate way s and Mr. Petrocelli is there, the sole person apply ing for the pardon

or apply ing for parole cry ing tears of remorse and telling the peopl e h o w it wasn’t he who

was the murderer o f M r

. W ilson it was an accident and he g ot r ailroaded, and t e l l ing people that it wasn’t h e who was the murderer

o f M elanie it w as a

n accident, and he wa s railroaded.P E T R O C E L L I V

. B A K

E R 48

Contrary to these statements, Petrocelli categ orically was i neligible for parole under a statute passed by the Neva d a leg islature just months before h is sentencing because he was

on probation when he murdered J ames W ilson. Had the jury sentenced Petrocelli to life in prison without the possibility o f parole, the prosecutor c ould n ot have known whether the State B o ard of Pa r d o n Commissioners (B oard) would have had the power to relea s e him. See Nev. Rev. Stat. § 213.1099(4)(e) (prohibiting the red uction o f a sentence to one allowing parole if the convicted individual had “[ f ailed] in parole, probation, work release or similar prog rams”). 3

There is no question the prosecutor was aware t h at Petrocelli w as on probation and had failed in “ similar
prog r ams” at the time of this crim e

. Petrocelli h ad been convicted of kidnaping and he had twice left a drug treatment prog r am. The prosecutor arg ued that Petr o c e l li’s previous conviction for kidnaping should be treated as an ag g ravating factor, and he cross-ex amined Petrocell i a b o ut leaving the drug treatment prog ram.

On appeal, the State’s defense of J u ry I n structi o n 5 a nd the prosecutor’s unequivoca l statement that Petrocelli could be g ranted parole if not sentenced to death, is that, before the
st a t u tory amendment, Nevada’s B oard g enerally had the authority to commute a sentence of life without the possibility of parole. B ut Petrocelli was on probation at the time of this crime a nd h ad t w ice a

bsconded f

rom a drug rehabilitation
prog r am. The Nevada Supreme Court declined to g rant

3 T h e i m p lem en tatio n o f § 2 1 3 .1 09 9 (4 ) w as co n tin g en t u p o n p assag e

o f a co n stitu

tio n al am en d m en t th at w as p u t to th e v o ters th ree m on th s af ter P etro celli’ s sen ten cin g , an d t h e retro activ ity o f th e statu te h ad n o t y et b een d eterm in ed

.P E T R O C E L L I V

. B A K

E R 49

Petrocelli relief on the basis of J ury I nstruction 5, but it directed trial courts to tell future juries: “L ife imprisonment without the possibility of parole means ex ac t l y w hat it say s, that the Defendant shall not b e e lig ible for parole.” Petrocelli

v

. State
, 692 P.2d 503, 511 (1985), h olding modified a f t e r statutory amendment by Sonner v. S tate , 930 P.2d 7 0 7 (1996).

The backdrop for the prosecutor’s eg reg ious Estelle trial

error was this definitive statement of Nevada law sug g esting the possibil i t y of parole, which the prosecutor h ammered during closing arg ument. I f this combination d o e s n ot put Petrocelli’s c ase in Brecht ’s f ootnote nine categ ory , the scale certainly tips when one considers that these were not isolated incidents o r inadvertent mistakes. I n Septe m b er 1983, the

same pr o s e c u tor’s office called D r. Gerow to testify about a defendant’s future dang erousness during the penalty phase o f another death penalty case, Sechrest v

. Ignacio
, 549 F .3d 789, 798–99 (9t h C i r

. 2008). I n Sechrest

, Dr. Gerow was orig inally hired by defense counsel but he swit c h e d sides to become a prosecution w itness. See id. at 816. Our decision in that c ase ex plains that Dr. Gerow int e r viewed Sechrest without g iving him Miranda w arning s o r o t h e rwise informing the defendant or h is counsel that h e m i gh t testify for the prosecution. S

ee id. at 798–99. W e c o ncluded in Sechrest that “Dr. Gerow’s testimo n y t hat [ the d efendant] was

ex tremely d ang erous and could not be rehabilitated likely h ad

a substantial influence on the jury ’s decision to sentence [ the defendant] to death.” Id. at 813.

F urther, Petrocelli’s trial was n ot the last capital c a s e in which this prosecutor’s o ffice inaccurately rep resented that the defendant c ateg orically would b e elig ible for parole if the jury d id not impose the death sentence. I n Sechrest

, decided after § 213.1099(4) became effective, the prosecution told theP E T R O C E L L I V

. B A K

E R 50

jury that “the B oard of Pardon Commissioners could chang e [ the defendant’s] sentence,” i d

. a t 7 9 8, and warned that if it did n ot impose a deat h sentence, it w as “risk[ ing ] the life o f

some other person or child,” id. at 811 (alteration in orig inal). As a matter o f fact and law, t hat was not true. Sechrest was inelig ible f

or parole because he was on probation a t the time he committed his offense, but an inaccurate jur y instruction “reinforced the prosecutor’s arg ument that the B oard o f Pardon Commissioners w as the entity responsibl e for deciding Sechrest’s term of imprisonment.” Id. at 812.

I n S echrest we held: “B ottom line: the prosecutor misled
t h e j u r o r s to believe that if they did not impose the death penalty

, [ the defendant] c o u l d be released o n parole a nd would kill ag ain. I n making his erroneous a s sertions, the prosecutor

. . . most likely inflamed the passions of the jury

. ” Id. at 812. Sechrest e stablishes that this prosecutor’s office had a g ame plan to dising enuously scare t h e j u ry about the likelihood that the d efendant mig h t be rel e a s ed to walk Reno’s streets ag ain.

I n my view, Petrocelli’s appeal presents “the unusual case where the combination of misconduct a nd error infected the entire proce e d i ng

. ” Hardnett

, 2 5 F .3d at 880 (internal quotation marks omitted). The pr o s e cu tion’s misuse of Dr. Gerow, coupl e d w ith the inflammatory and misleading
statements of Nevada law it used in a t least two capital cases, pushes this case across the line into footnote nine error of the
sort that led two other appellate c ourts to g r ant habeas relief. See United S

tates v. Bowen
, 799 F .3d 3 36 (5th Cir. 2 015); United States v. Harbin , 250 F .3d 532, 545 (7th Cir. 2001).

Bowen arose from the prosecution o f f ive former police

o f f icers involved in the killing of two unarmed men af t e rP E T R O C E L L I V

. B A K

E R 51

Hurricane Katrina (the “Danz ig e r B ridg e shooting s”) and an alleg ed c over-up. Bowen
, 700 F .3d a t 3 3 9

– 40. F ederal prosecutors in charg e o f the case eng ag ed in a series o f “e t h i c a l lapses” during the hig h -profile trial. Id. at 339. Alt h o u gh the F ifth Circuit could not conclude that the prosecutorial misconduct was “outcome-determinative,” id.
at 356, the c ourt held that footnote nine error occurred when
prosec utors leaked c onfidential information, anony mously posted on online news sources, and withheld information from the d istrict court, id. at 339–46, 353–54. According to the F ifth Circuit: “The [ pros e c utors’] online commenting alone, which breached all standards of p rosecutorial ethics,
g ave the g overnment a surreptitious a dvantag e in influencing public opinion, the veni re panel, a nd the trial itself.” Id. at 353. “This c ase thus presents the unclassifiable and pervasive

errors to which the Supreme Court referred in Brecht when it identified a categ ory of errors capable of infecting the integ rity of the prosecution to a deg ree warranting a new trial irrespective of prejudice.” Id.

The Sev e nth Circuit considered an eg reg ious error that similarly tipped the scales in favor o f the prosecution in Harbin. There, the prosecution, but not t h e defense, was allowed to “save” a peremptory juror challeng e until the six th day of an eig ht-day trial. See 250 F .3d at 537–39. Althoug h

no one arg ued that the a l t ernate juror who r eplaced the

ex c u sed juror was b i a sed, the Seventh Circuit held that the

error defied th e ty

p ical harmless error analy sis, should be treated a s structural, and required r eversal, in accord with the “footnote n i n e e x ception.” See id. at 544–48. The Seventh Circuit reasoned: “[ T ] he error was serious eno u g h to effect

a shift in the total balan ce o f advantag es in favor of the
p rosecution, w hich

. . . could deprive defendants of a fair trial.” Id. a t 547.P E T R O C E L L I V

. B A K

E R 52

So too here. The prosecutor’s Estelle violation and other

m isconduct shifted the total balance of the penalty phas e. This misconduct w a s d eliberate, and eg reg ious, a nd it compromised the integ rity of the trial to a deg ree warranting

a new sentencing trial w i th or without a showing that the errors actually influenced the jury ’ s verdict.

F or th es e reasons, I respectfully concur in the majority opinion, but I w ould also g rant habeas relief based on Brecht ’s footnote nine.