FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRACY PETROCELLI,

Petitioner-Appellant,

v.

RENEE BAKER, Warden,

Respondent-Appellee.

No. 14-99006

D.C. No.

3:94-cv-00459-RCJ

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Senior District Judge, Presiding

Argued and Submitted September 16, 2016

San Francisco, California

Filed July 5, 2017

Amended August 23, 2017

Before: William A. Fletcher, Morgan Christen,

and Michelle T. Friedland, Circuit Judges.

Order;

Opinion by Judge W. Fletcher;

Concurrence by Judge Christen
2 PETROCELLI V. BAKER

SUMMARY*

Habeas Corpus / Death Penalty

The panel filed an amended majority opinion and

concurrence, denied a petition for panel rehearing, and denied

on behalf of the court a petition for rehearing en banc, in

Tracy Petrocelli’s appeal from the denial of his pre-AEDPA

habeas corpus petition challenging his Nevada state

conviction and capital sentence for robbery and first-degree

murder.

In the amended opinion, the panel affirmed the district

court’s denial of the petition with respect to the conviction,

reversed the denial of the petition with respect to the death

sentence, and remanded.

The panel held that because Petrocelli failed to invoke his

right to counsel unambiguously, his April 19 interrogation

was not conducted in violation of Miranda v. Arizona, 384

U.S. 436 (1966), or Edwards v. Arizona, 451 U.S. 477 (1981),

and trial counsel was therefore not ineffective in failing to

move to suppress testimony as fruit of the interrogation.

The panel rejected Petrocelli’s contention that use at trial

of his statements to detectives on April 20 and 27 violated his

Fifth, Sixth, and Fourteenth Amendment rights. Because the

State used the statements only for impeachment, the panel

rejected Petrocelli’s contention that his Fifth and Sixth

Amendment rights were violated by the taking of his

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PETROCELLI V. BAKER 3

statements during interrogations at which his appointed

counsel was not present. The panel rejected the defendant’s

contention that his statements were involuntary. 

The panel affirmed the district court’s conclusion that

Petrocelli failed to exhaust his challenge to the jury

instruction defining premeditation and deliberation.

The panel held that the State waived any defense to

Petrocelli’s contention that the admission of psychiatric

testimony during the penalty phase violated his Fifth and

Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454

(1981). The panel held that even if the State had not waived

its defense, admission of the testimony violated Estelle,

where the psychiatrist, acting at the request of the prosecutor,

visited Petrocelli in jail to determine his competency to stand

trial, failed to provide Miranda warnings, did not seek or

obtain permission from Petrocelli’s appointed counsel to visit

or evaluate him, and testified that Petrocelli was dangerous

and incurable. The panel concluded that the error was not

harmless.

Concurring, Judge Christen wrote separately because, in

her view, even if the State could show that the prosecutor’s

tactics had not prejudiced the jury’s verdict, Petrocelli’s case

is one of the very few in which deliberate prosecutorial

misconduct and egregious trial errors warrant habeas relief.

COUNSEL

A. Richard Ellis (argued), Mill Valley, California, for

Petitioner-Appellant.
4 PETROCELLI V. BAKER

Robert E. Wieland (argued), Senior Deputy Attorney

General; Jeffrey M. Conner, Assistant Solicitor General;

Adam Paul Laxalt, Attorney General; Office of the Attorney

General, Carson City, Nevada; for Respondent-Appellee.

ORDER

The majority opinion and concurrence filed on July 5,

2017, and appearing at 862 F.3d 809, are hereby amended. 

An amended majority opinion and concurrence are filed

concurrently with this order.

The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35. 

The petition for panel rehearing and rehearing en banc is

DENIED. No new Petition for Panel Rehearing or Petition

for Rehearing en Banc will be entertained.

OPINION

W. FLETCHER, Circuit Judge:

In 1982, Tracy Petrocelli was convicted and sentenced to

death in Nevada state court for the robbery and first-degree

murder of James Wilson, a Nevada used car salesman. 

Petrocelli filed a federal petition for writ of habeas corpus

before the effective date of the Antiterrorism and Effective

Death PenaltyAct (“AEDPA”). Petrocelli appeals the district

court’s denial of the writ.
PETROCELLI V. BAKER 5

We affirm the district court’s denial of the writ with

respect to Petrocelli’s conviction but reverse with respect to

his death sentence. We hold that admission of Dr. Lynn

Gerow’s psychiatric testimony during the penalty phase

violated Petrocelli’s Fifth and Sixth Amendment rights under

Estelle v. Smith, 451 U.S. 454 (1981), and that the violation

had a substantial and injurious effect on the jury’s decision to

impose the death sentence. See Brecht v. Abrahamson,

507 U.S. 619 (1993).

I. Background

A. Crime, Arrest, and Pre-Trial Interrogations

On March 29, 1982, Petrocelli went on a test drive of a

Volkswagen pickup truck with James Wilson, a used car

salesman, in Reno, Nevada. At some point during that test

drive, Petrocelli shot and killed Wilson. Wilson’s body was

found buried in a crevice under some rocks and brush near

Pyramid Lake. The lake is about thirty-five miles north of

Reno. Wilson had been shot in the neck, chest, and back of

the head.

Nearly a year before killing Wilson, in May 1981,

Petrocelli had pleaded guilty in Washington State to

kidnaping his girlfriend, Melanie Barker. He had received a

suspended sentence conditioned on his completion of a drug

treatment program. Petrocelli absconded from the treatment

program twice and never completed it. Petrocelli shot and

killed Barker in Washington State in October 1981, five

months before he killed Wilson in Nevada.

Petrocelli was arrested for the Wilson murder in Las

Vegas on April 18, 1982. The following day, he was
6 PETROCELLI V. BAKER

interrogated in Las Vegas. Petrocelli was advised of his

Miranda rights, and he signed a statement indicating that he

understood them. Petrocelli stated during the interrogation,

“I’d sort of like to know what my . . . lawyer wants me to

do.” (Ellipsis in original.) He nonetheless continued to

answer questions. Later in the interrogation, he admitted to

having previously stolen a car from a “Dub Peterson”

dealership in Oklahoma City after taking it for a test drive

with a salesman.

Petrocelli was subsequently transported to Reno. On the

afternoon of April 20, he was interrogated by Sergeants Glen

Barnes and Abel Dickson, as well as two prosecutors from

the District Attorney’s Office of Washoe County, Bruce

Laxalt and Don Nomura. At the beginning of the

interrogation, Petrocelli made a variety of requests that he

characterized as “preconditions” to talking. They included

locating some of his property, facilitating a visit by his wife,

bringing him photographs of Barker, arranging a television

interview, and receiving psychiatric counseling. Dickson

testified at a hearing outside the presence of the jury that no

promises were made, but that Petrocelli was told that if his

requests “could be done they would be done.” After being

informed of his Miranda rights, Petrocelli confessed to

shooting both Wilson and Barker.

On April 20, the Public Defender of Washoe County was

appointed as counsel for Petrocelli by order of the Reno

Justice Court. On April 21, Petrocelli personally appeared in

the Justice Court, where he was arraigned and bail was set.

The visitors’ log for the Washoe County Jail shows that

Larry Wishart, an attorney from the Washoe County Public

Defender’s Office, and Tim Ford, an investigator from that
PETROCELLI V. BAKER 7

office, visited Petrocelli on April 21, the day of his

arraignment, at about 1:50 pm. (A date and time stamp of

“82 APR 21 P 1 :5” appears on the photocopy of the log. The

number specifying the minute is cut off on the photocopy in

the trial court record.) A date and time stamp shows that their

visit lasted about half an hour (“82 APR 21 2 :2”). The log

shows a visit from Dr. Lynn Gerow later that day. Gerow

was a psychiatrist who had been asked by Chief Deputy

District Attorney Laxalt to evaluate Petrocelli’s competency

to stand trial.

The relevant page of the visitors’ log is dedicated

exclusively to visitors to Petrocelli. Wishart and Ford’s

entry, with their signatures, is on line three of the page. They

wrote “WCPD/ATT” in the box asking for their

“relationship.” Dr. Gerow’s entry, with his signature, is on

line four, immediately below. He wrote “D.A.” in the box

asking for his “relationship.” The entry by Wishart and Ford,

stating their relationship to Petrocelli, would have been

apparent to Gerow when he signed the log. A date and time

stamp show that Gerow signed in at about 3:50 (“82 APR 21

P 3 :5”). There is no stamp showing when his visit ended. 

Gerow testified at trial that he spent two hours interviewing

Petrocelli.

Petrocelli testified that he believed that Dr. Gerow had

come to see him in response to his request for counseling. 

During his April 20 interview in Reno, Petrocelli had

specified as one of his “preconditions” that he receive

psychiatric counseling. Petrocelli testified consistently at a

hearing outside the presence of the jury, saying that he had

stated as one of his preconditions: “I wanted to have

psychiatric counseling while I was in the jail.” He testified

that he “saw a doctor Gerow once.” When asked how long he
8 PETROCELLI V. BAKER

spoke to Gerow, Petrocelli responded, “[I]t didn’t seem like

it was very long.” When asked to estimate the time,

Petrocelli responded, “Well, I never did even finish my

conversation. He just cut me off in the middle and left.”

On April 27, Dr. Gerow sent a letter labeled

“confidential” to Prosecutor Laxalt in the District Attorney’s

office. He wrote:

At your request I examined Mr. Maida

[the name under which Petrocelli was then

being held] at the Washoe County Jail on

April 21, 1982. I had an opportunity to

discuss his case with you prior to the

psychiatric evaluation.

. . .

Mr. Maida was abused as a child. He was

adopted at three years of age. . . . He was in

trouble at school and home at an early age. 

He developed a psychopathic personality

which is complicated by a history of severe

drug abuse. . . .

In my opinion Mr. Maida is both

competent for understanding the charges and

assisting his attorney and responsible (mens

rea) for any alleged offense.

I have determined to see Mr. Maida in the

future on an “as needed” basis. If you require

my involvement as circumstances develop,

please feel free to call me.
PETROCELLI V. BAKER 9

Gerow testified in state post-conviction proceedings that

when he wrote “as needed,” he meant “as needed by Mr.

Laxalt.”

Wishart testified in state post-conviction proceedings that

when he met with Petrocelli on April 21, he did not know that

Dr. Gerow was going to see his client later that afternoon. 

Wishart testified that he would not have employed Gerow

because he “had a prosecution bias.”

Petrocelli was interrogated again on April 27. After being

advised of his Miranda rights, Petrocelli made another

statement.

B. Guilt Phase Trial

On April 28, 1982, Petrocelli was indicted on one count

of robbery with a deadly weapon and one count of firstdegree murder. The guilt phase of the trial began on July 27,

1982, and ran through August 5, 1982. At trial, the State

contended in support of the robbery count that Petrocelli went

on the test drive with Wilson in order to steal the truck, that

he used his gun to try to force Wilson out of the truck, and

that he shot Wilson when Wilson would not cooperate. To

bolster its theory, the State called Melvin Powell, an

Oklahoma car salesman, to testify that Petrocelli had stolen

a car in a similar manner (though without injuring Powell)

during a test drive in February 1982.

The defense contended, based on Petrocelli’s testimony

at trial, that Petrocelli had been a bona fide prospective

purchaser with no intent to steal, and that Wilson was

accidentally shot in the midst of a heated argument and

struggle that resulted from haggling over the price of the
10 PETROCELLI V. BAKER

truck. To impeach Petrocelli’s testimony, the State

introduced portions of the statements that Petrocelli had made

on April 20 and 27. To undermine Petrocelli’s contention

that the Wilson shooting was unintentional, the State

impeached Petrocelli with his statement on April 20 that his

earlier shooting of his girlfriend, Melanie Barker, was an

“accident.” The prosecutor also impeached Petrocelli by

confronting him with other inconsistencies between his trial

testimony and his statements to the detectives.

The jury found Petrocelli guilty of both charges.

C. Penalty Phase Trial

1. Aggravating Factors and Lay Testimony

In order to render Petrocelli death-eligible, the State had

to establish at least one aggravating factor. During the

penalty phase of Petrocelli’s trial, the State sought to

establish two such factors: (1) that the murder had been

committed in the course of a robbery, and (2) that Petrocelli

had previously been convicted of a violent felony, the

kidnaping of his girlfriend Melanie Barker. (The first factor

was later held by the Nevada Supreme Court to be invalid. 

See McConnell v. State, 102 P.3d 606, 624 (Nev. 2004) (per

curiam). In reviewing Petrocelli’s third petition for postconviction relief, the Nevada Supreme Court held that use of

this factor had been improper.)

To establish the first factor, Prosecutor Laxalt put John

Lucas on the stand. Lucas had been in the Washoe County

Jail with Petrocelli for about five weeks after Petrocelli’s

arrest for the Wilson murder. Lucas testified that Petrocelli

had told him that he had shot Wilson in order to steal the
PETROCELLI V. BAKER 11

truck. He also testified that Petrocelli said he was “going to

get rid of” the district attorney as well as an unidentified

woman Petrocelli characterized as a “snitch.”

The second factor was Petrocelli’s conviction for

kidnaping Barker. At trial, it was uncontested that he had

later killed her. However, at the time of trial he had not been

convicted of the killing. To establish the second factor,

Prosecutor Laxalt called Melanie Barker’s mother, Maureen

Lawler, to testify about the circumstances that had led to the

kidnaping. The jury had already learned during the guilt

phase, from Petrocelli’s testimony and from the testimony of

an eye-witness, that Petrocelli had killed Barker. Lawler

testified only as to the circumstances that had led to the

kidnaping conviction. Lawler, who had lived with her

daughter in the city of Kent, in western Washington, testified

that Barker had gone to eastern Washington with Petrocelli

for three days, that Barker had been “beaten on the face” and

was “hysterical” when she returned home, and that at some

point during the three days Barker had been told by Petrocelli

that his friends would “do away with her.” Lawler testified

that after Barker had told Petrocelli that her mother would

have the police looking for her, “He agreed to take her back. 

. . . At that point, she got away from him.” Lawler also

described a phone conversation, prior to the kidnaping, when

Lawler had arranged for Petrocelli’s wallet to be taken to the

police station. Petrocelli objected to her having done so, and

she testified that Petrocelli said he “would blow me away.” 

Laxalt also called Joan Bleeker, who testified that Barker had

come into a restroom during the time she was in eastern

Washington and had asked Bleeker to call the police because

she was being kidnaped.
12 PETROCELLI V. BAKER

Petrocelli testified, presenting his version of what had

happened during the three days in eastern Washington in an

attempt to show, despite his conviction, that he had not really

kidnaped Barker. According to Petrocelli, Barker went with

him voluntarily; they were accompanied by a friend of

Petrocelli; they went out in public, eating in restaurants and

going to stores together; and she and Petrocelli got in a fight

as they were driving back to western Washington.

In the interval between the testimonies of Lawler and

Bleeker, Prosecutor Laxalt played a tape recording of a

portion of Petrocelli’s interrogation on April 20 in which

Petrocelli described the Wilson killing. Petrocelli had cried

during his in-court testimony when describing the Wilson

killing. The tape recording is not in the record, but it is

apparent from the transcript that Laxalt played the tape to

contrast Petrocelli’s tearful demeanor during trial to an

unemotional demeanor on April 20.

2. Professional Mental Health Evidence

Defense counsel Wishart submitted written reports by

three different mental health professionals—Dr. John Petrich,

a psychiatrist; Dr. Martin Gutride, a psychologist; and Dr.

John Chappel, a psychiatrist. Wishart called none of the three

to give live testimony.

Dr. Petrich’s evaluation of Petrocelli’s mental health and

future dangerousness was the most favorable to Petrocelli, but

his evaluation was of limited use to the defense. Petrich had

evaluated Petrocelli in June 1981, when Petrocelli was in jail

in Washington State on the kidnaping charge, prior to killing

Barker and Wilson.
PETROCELLI V. BAKER 13

Drs. Gutride and Chappel evaluated Petrocelli in July

1982, after he had killed Barker and while he was in jail

waiting to stand trial for killing Wilson. Gutride reported that

Petrocelli was adopted at age two and a half, and had been

physically abused by his biological mother. Petrocelli’s

adoptive mother died when Petrocelli was seventeen, and

Petrocelli attempted suicide several months after the funeral. 

After his adoptive mother’s death, he became close to his

adoptive father for a brief time, but fell out of touch after his

father remarried. Gutride reported that Petrocelli cried when

he spoke about having lost contact with his father. Petrocelli

was “placed in a military academy at age twelve because of

discipline problems,” and he joined the Marines at about age

seventeen. While in the Marines, Petrocelli was arrested for

fighting with policemen while drunk; shortly thereafter, he

began going AWOL. He was eventually given a dishonorable

discharge. Sometime around 1974, Petrocelli moved to

Washington State, began working in a steel mill, and became,

by his own admission, “increasingly unstable.” In 1976, he

attempted suicide. In 1977, he was arrested for theft but fled

before his trial. He became a professional gambler in Reno,

Nevada, and began abusing alcohol and drugs. He was

arrested in 1980 for kidnaping Barker.

Dr. Gutride reported that Petrocelli “cried openly” during

the interview and that his “distraught behavior had the quality

of his practically begging for help.” “[H]e desperately wants

to know what is the matter with him and why he did the

things he is charged with. He doesn’t deny responsibility, but

says he can’t remember most of the circumstances

surrounding the various crimes.” According to Gutride,

Petrocelli told him he “ha[d] called crisis lines in every city,

but been unable to get any help” and “ha[d] talked with

psychiatrists while in other jails and been put off.”
14 PETROCELLI V. BAKER

Dr. Gutride reported that throughout the interview,

Petrocelli’s “thought processes were logical and coherent,

memory seemed good, but selective, and intelligence seemed

quite adequate.” However, “[o]nce formal testing began, the

client seemed to lose those qualities. The difference was so

striking that he appeared to be faking ‘bad.’” Gutride

concluded that Petrocelli was “clearly a lot brighter than his

test scores reflect.”

Dr. Gutride concluded that Petrocelli is “very impulsive,”

has “a high potential for violence,” is “very mistrustful of

others,” and may be “a relatively high suicide risk.” Gutride

diagnosed Petrocelli with “antisocial personality with

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

exhibited during the interview seems genuine and the client

may truly desire some mental health treatment,” though his

“ability to profit from such treatment is questionable”

because of his distrust of others. Gutride concluded by noting

that Petrocelli “can be quite dangerous to others as well as

himself and treatment should be offered in a setting where the

client can be closely monitored.”

Dr. Chappel reported some of the same family

background information that Dr. Gutride reported. Chappel

further reported that Petrocelli’s arrest for kidnaping was

“very traumatic” for him. Petrocelli “repeatedly asked for

help” while in jail in Seattle, was seen by Dr. Petrich, and

was put on an antipsychotic drug that helped him sleep. 

Petrocelli apparently attempted to commit suicide shortly

afterwards, and was put in solitary confinement as a result. 

Chappel reported that Petrocelli “viewed the experience as

one of asking for help and not getting it.” He recounted

Petrocelli’s description of shooting Barker. Petrocelli

asserted that “there were times when a ‘black box’ of control
PETROCELLI V. BAKER 15

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

or do some other destructive act,” but that he still did not

“understand why his girlfriend had to die.” Petrocelli

“expresse[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

“depressed and angry,” with the depression “expressed

through sobbing and tears,” as well as various suicide

attempts. His anger was directed “primarily at the police and

the district attorneys.” “He considers the Washoe County

District Attorney as premeditating his murder. When this

rage occurs [he] threatens to kill the prosecutor.” Chappel

diagnosed Petrocelli with impulse control disorder and

antisocial personality disorder. He wrote that “a more

extensive evaluation” would be useful in order for Petrocelli

“to have a better understanding of the reasons for his loss of

impulse control and his reason for killing someone who was

close to him.” Chappel observed that if Petrocelli were “not

sentenced to death and executed . . . in his current state of

mind he is very dangerous to those people to whom his rage

is directed. A period of evaluation and a trial of treatment

might serve a useful purpose in preventing any further

homicidal outbursts of rage on his part.”

After these three written reports were admitted into

evidence, Prosecutor Laxalt called Dr. Gutride to the stand. 

Gutride’s testimony was very short, filling just under two

pages of transcript. In an attempt to undermine Gutride’s

diagnosis and the portions of his report that were favorable to

Petrocelli, Laxalt drew Gutride’s attention to his conclusion

that Petrocelli had been “faking ‘bad.’” Laxalt asked Gutride,

“Despite the faking on the IQ test, et cetera, do you think this

is a valid diagnosis?” Gutride replied that he could
16 PETROCELLI V. BAKER

substantiate his diagnosis of “unsocial with paranoid

tendencies” with a “long history.” Gutride stated that the

diagnosis “does not imply an individual is unable to think

properly or conduct themselves conventionally. It relates

mostly to a style of living.”

Prosecutor Laxalt then called Dr. Gerow to the stand. 

Defense counsel Wishart objected on the grounds of

psychiatrist-patient privilege, but the court overruled the

objection. Laxalt introduced no written report by Gerow. 

Gerow testified that he had interviewed Petrocelli for two

hours on April 21, and that as a result of his interview he had

formed an opinion of Petrocelli’s “mental and emotional

personality traits.” Gerow said that he agreed with Drs.

Chappel and Gutride’s diagnosis of “antisocial personality.” 

However, Gerow referred to it as a “psychopathic” rather than

an “antisocial” personality. Gerow described Petrocelli’s

personality as “rare,” and as the personality of someone “who

is very callous and selfish, someone unreliable and

irresponsible.” He testified that individuals with

psychopathic 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 treatment at all” for psychopathic personality,

that the condition worsens during adolescent years, and that

it “persists throughout life.” Gerow testified that the violence

potential of a psychopathic “varies,” but that the propensity

for further violence is “quite high” for individuals with a

history of violence. Gerow testified that being “a

psychopathic” was an incurable “emotional disturbance.” 

Gerow concluded his direct examination testimony by stating

unequivocally, “There is no cure.”
PETROCELLI V. BAKER 17

3. Jury Instructions, Final Argument, and Verdict

Before final penalty-phase arguments, the judge

instructed the jury. Jury Instruction 5 provided, “If the

penalty is fixed at life imprisonment without the possibility

of parole, the defendant shall not be eligible for parole.” 

However, the instruction continued, indicating that the State

Board of Pardon Commissioners had the power to release

Petrocelli from prison even if the jury returned a sentence of

life imprisonment without parole:

Under the laws of the State of Nevada, any

sentence imposed by the jury may be

reviewed by the State Board of Pardon

Commissioners. Whatever sentence you

return in your verdict, this Court will impose

that sentence. Whether or not the State Board

of Pardon Commissioners upon review, if

requested by the defendant, would change that

sentence, this Court has no way of knowing. 

The State Board of Pardon Commissioners,

however, would have the power to modify any

sentence at a later date.

In his closing argument, Prosecutor Laxalt emphasized

Dr. Gerow’s testimony, Petrocelli’s incurability, and the

possibility that the Board of Pardon Commissioners could

release Petrocelli from prison. Laxalt maintained that

Petrocelli “is, has been, and will forever remain a cool

unfeeling, callous, individual, and a cold-blooded thief and

killer.” “He will never change.” He continued, “Dr. Gerow

has said there is no treatment; he will be a psychopathic

personality, unfortunately.” “Extreme mental or emotional

disturbance” cannot be a mitigating circumstance because
18 PETROCELLI V. BAKER

such disturbance implies that “there is treatment available for

this person. What psychopath means, essentially, is a mean,

bad person who has never changed and who will continue to

victimize.” “[N]o society, no community, no county, no city,

no state, should ever have to risk again Tracy Petrocelli on

the street.”

In his rebuttal argument, Prosecutor Laxalt pointed to the

reports of Drs. Chappel and Gutride, noting that each had

discussed the possibility of treatment: “That a period of

evaluation and a time of treatment might serve a reasonable

purpose. . . . Do we take that chance?” He answered this

question by emphasizing Dr. Gerow’s testimony. “[H]e will

not learn from punishment. He will not learn, he cannot

learn.” Invoking the possibility of Petrocelli’s release from

prison, Laxalt concluded:

I ask you to consider years down the road

when the decisions are being made at the

Pardons Board and the Parole Board and we

have all gone our separate ways and Mr.

Petrocelli is there, the sole person applying

for the pardon or applying for parole crying

tears of remorse and telling the people how it

wasn’t he who was the murderer of Mr.

Wilson it was an accident and he got

railroaded, and telling people that it wasn’t he

who was the murderer of Melanie it was an

accident, and he was railroaded. . . . Because

he will be there. He will be there. . . . That’s

a sad fact, but it’s to be faced.
PETROCELLI V. BAKER 19

Laxalt asked that the jury “return a verdict of death for Mr.

Tracy Petrocelli, a cold-blooded killer, who will always

remain so.”

The jury returned a sentence of death.

II. Post-trial Procedural History

The Nevada Supreme Court affirmed Petrocelli’s

conviction and sentence. See Petrocelli v. State, 692 P.2d

503 (Nev. 1985). Petrocelli filed a timely state petition for

post-conviction relief, which was denied on the merits by the

state courts. He then filed a federal habeas petition, which

the district court dismissed without prejudice because it

contained unexhausted claims. Petrocelli returned to state

court to exhaust these claims, which the state courts

dismissed as procedurally defaulted.

Petrocelli filed his second federal habeas petition pro se

on October 28, 1994, and then filed a counseled amended

petition in 1996. The amended petition raised various claims,

including two claims challenging the reference to the Pardon

Board in Jury Instruction 5. The first of those two claims,

labeled “Ground 4,” alleged that the instruction improperly

suggested that Petrocelli could receive “a pardon or parole”

if sentenced to life without the possibility of parole because

it allowed the juryto “inappropriatelyspeculate.” The second

claim, labeled “Ground 6,” alleged that the jury instruction

“inaccurately led the jury to believe that Petitioner, under

Nevada law, could receive parole” even though Nev. Rev.

Stat. § 213.1099 prohibits the granting of parole to a prisoner

who has a history of “[f]ailure in parole, probation, work

release or similar programs.” The district court dismissed

Ground 6 and several other grounds as an “abuse of the writ”
20 PETROCELLI V. BAKER

because they had not been raised in Petrocelli’s first federal

habeas petition. It then denied Petrocelli’s amended petition

in September 1997, finding all claims either unexhausted,

procedurally defaulted, or nonmeritorious.

On appeal, we reversed in part and remanded for the

district court to consider various claims it had improperly

dismissed as an “abuse of the writ,” including Ground 6. 

Petrocelli v. Angelone, 248 F.3d 877, 884–85, 887 (9th Cir.

2001). Because in his briefing to us Petrocelli had not made

any argument with respect to Ground 4, we deemed that

ground abandoned. Id. at 880 n.1. On remand, the district

court found various claims unexhausted and stayed

Petrocelli’s petition in order to permit him to return to state

court to exhaust them.

Petrocelli filed his third state petition for post-conviction

relief on August 11, 2003, raising a number of claims. The

state district court denied Petrocelli’s petition, denying some

claims on the merits and holding some claims procedurally

barred. Petrocelli appealed from the state district court’s

denial, and the Nevada Supreme Court affirmed.

Petrocelli then returned to federal court and filed his

fourth amended petition, the operative petition in this case. 

In his petition, he challenged, inter alia, Jury Instruction 5, in

language similar to that used in the claim he had labeled

“Ground 6” in his earlier petition. In this petition, he labeled

the challenge “Claim 4.” The district court dismissed Claim

4 after concluding that it corresponded to Ground 4 of

Petrocelli’s earlier petition, which we had deemed abandoned

in our earlier decision. The district court required Petrocelli

to abandon various claims it deemed unexhausted, and

rejected the remaining claims on the merits.
PETROCELLI V. BAKER 21

The district court issued a certificate of appealability as to

three claims: (1) a claim that trial counsel was ineffective for

failing to object to the admission of Powell’s testimony; (2) a

claim that Petrocelli’s April 20 and 27 statements were

admitted in violation of the Fifth, Sixth, and Fourteenth

Amendments; and (3) a claim that introduction of Dr.

Gerow’s testimony violated Petrocelli’s Fifth and Sixth

Amendment rights. We issued a certificate of appealability

as to three additional claims, including a claim challenging

Jury Instruction 5.

III. Jurisdiction and Standard of Review

We have jurisdiction over the district court’s denial of

Petrocelli’s federal habeas petition pursuant to 28 U.S.C.

§§ 1291 and 2253(c).

We review de novo a district court’s decision to grant or

deny a habeas petition. Curiel v. Miller, 830 F.3d 864, 868

(9th Cir. 2016). The petition at issue was filed in 1994, well

before the April 24, 1996, effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Thus,

AEDPA’s deferential standard of review does not apply. See

Woodford v. Garceau, 538 U.S. 202, 207 (2003); see also

Thomas v. Chappell, 678 F.3d 1086, 1100 (9th Cir. 2012)

(“We have consistently held that where . . . a petitioner filed

a habeas application before the effective date of AEDPA and

the district court retained jurisdiction over the case, AEDPA

does not apply even if the petitioner files an amended petition

after the effective date of AEDPA.”).

Under pre-AEDPA law, “we review de novo questions of

law and mixed questions of law and fact, whether decided by

the district court or the state courts.” Thomas, 678 F.3d at
22 PETROCELLI V. BAKER

1101 (alteration omitted) (quoting Sivak v. Hardison,

658 F.3d 898, 905 (9th Cir. 2011)). Whether a constitutional

error was harmless is a mixed question of law and fact that is

reviewed de novo. Ghent v. Woodford, 279 F.3d 1121, 1126

(9th Cir. 2002). State court findings of fact are “entitled to a

presumption of correctness unless they are ‘not fairly

supported by the record.’” Silva v. Woodford, 279 F.3d 825,

835 (9th Cir. 2002) (quoting former 28 U.S.C. § 2254(d)(8)).

IV. Discussion

A. Guilt Phase Claims

Petrocelli challenges his conviction on three grounds. 

First, he contends that his trial counsel was ineffective for

failing to object to the testimony of Powell, the Oklahoma car

salesman, on the ground that Powell’s testimony was the fruit

of Petrocelli’s April 19 statement, which had been obtained

in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and

Edwards v. Arizona, 451 U.S. 477 (1981). Second, he

contends that the use at trial of his April 20 and 27 statements

violated the Fifth, Sixth, and Fourteenth Amendments. Third,

he contends that a guilt-phase jury instruction defining

premeditation and deliberation unconstitutionally relieved the

State of its burden of proving each element of the crime

beyond a reasonable doubt.

For the reasons that follow, each contention fails.

1. Powell Testimony

Petrocelli contends that trial counsel was ineffective for

failing to object to Powell’s testimony as fruit of a Miranda

and Edwards violation. As recounted above, Powell was a
PETROCELLI V. BAKER 23

used car salesman from whom Petrocelli had stolen a car

during a test drive, in a manner similar to his theft of the

truck in Nevada. The prosecution learned of the prior vehicle

theft during the April 19 interrogation when Petrocelli

admitted he had stolen a vehicle from a “Dub Peterson”

dealership in Oklahoma City.

To show ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984), a defendant

must show that his counsel’s representation “fell below an

objective standard of reasonableness” and that he was

prejudiced by the deficient performance. Id. at 687–88. A

failure to make a motion to suppress that is unlikely to

succeed generallydoes not constitute ineffective assistance of

counsel. See Premo v. Moore, 562 U.S. 115, 124 (2011); see

also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994)

(holding that failure to make a motion to suppress which

would “be meritless on the facts and the law” does not

constitute ineffective assistance of counsel).

Before beginning the interrogation on April 19, the police

officers advised Petrocelli of his Miranda rights, and

Petrocelli signed a statement indicating that he understood

them. The officers then began questioning Petrocelli. For

some time he answered questions freely. When he later

became evasive, one of the officers observed, “I thought . . .

you wanted to talk to us about this.” Petrocelli responded, “I

do,” and continued answering questions. Shortly afterwards,

Petrocelli stated, “I’d sort of like to know what my . . . lawyer

wants me to do.” (Ellipsis in original.) When the officer

asked if Petrocelli had understood his rights, he answered that

he did. Later in the questioning, Petrocelli stated, “I even

have a . . . part-time attorney and just to answer questions for

me.” (Ellipsis in original.) The officer then asked, “Is it . . .
24 PETROCELLI V. BAKER

what you’re telling me is you don’t want to answer any

questions without an attorney?” (Ellipsis in original.) 

Petrocelli responded, “No. I just need to have something

answered. That’s all.” The officer told him, “Well, we don’t

have an attorney . . . present with us right now. Like I

indicated before if at any time you don’t want to . . . answer

any questions or make any statements you don’t have to.” 

(Ellipses in original.) The officer resumed questioning, and

Petrocelli confessed to stealing cars by going to car lots and

taking them for test drives. He mentioned one particular theft

from a “Dub Peterson” dealership in Oklahoma City. This

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

When a suspect invokes his Fifth Amendment right to

have counsel present during a custodial interrogation, “the

interrogation must cease until 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 an unambiguous invocation of the

right to counsel triggers protection under Edwards. An

invocation is unambiguous if the accused “articulate[s] his

desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would

understand the statement to be a request for an attorney.” 

Davis v. United States, 512 U.S. 452, 459 (1994). Applying

this test, the Supreme Court held in Davis that the statement,

“Maybe I should talk to a lawyer,” was ambiguous and did

not constitute a request for counsel. Id. at 462.

Under Davis, Petrocelli’s language was insufficient to

constitute an unambiguous invocation of counsel. Because

Petrocelli failed to invoke his right to counsel

unambiguously, the April 19 interrogation was not conducted
PETROCELLI V. BAKER 25

in violation of Miranda or Edwards. Petrocelli’s trial counsel

was therefore not ineffective in failing to move to suppress

Powell’s testimony as fruit of the interrogation.

2. April 20 and April 27 Statements

Petrocelli contends that the use at trial of his statements

to the detectives on April 20 and April 27 violated his Fifth,

Sixth, and Fourteenth Amendment rights. Prosecutor Laxalt

used Petrocelli’s statement that his killing of Barker was an

“accident” to impeach Petrocelli’s testimony that the Wilson

shooting was also an accident. Laxalt also impeached

Petrocelli by confronting him with various inconsistencies

between his statements and his trial testimony.

Petrocelli contends that he invoked his right to counsel on

April 19, and that his statements taken on that date and

thereafter were therefore taken in violation of his Fifth and

Sixth Amendment rights. Petrocelli’s counsel was appointed

on April 20 but was not present at the interrogations on April

20 and 27. Assuming without deciding that Petrocelli’s Fifth

or Sixth Amendment right was violated, the rule is well

established that a voluntary statement taken in violation of the

Fifth or Sixth Amendment may be used for impeachment. 

See Michigan v. Harvey, 494 U.S. 344, 345–46 (1990);

United States v. Gomez, 725 F.3d 1121, 1125–26 (9th Cir.

2013). Because the State used the statements at issue only for

impeachment, Petrocelli’s contention fails.

Petrocelli next contends that his April 20 and 27

statements were involuntaryand thus that their admission was

unconstitutional. Statements are unconstitutionally

involuntary when a “‘defendant’s will was overborne’ by the

circumstances surrounding the giving of a confession.” 
26 PETROCELLI V. BAKER

Dickerson v. United States, 530 U.S. 428, 434 (2000)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226

(1973)).

Petrocelli contends that his statements were involuntary

because theywere “obtained by inducements.” “Inducements

to cooperate are not improper . . . unless under the total

circumstances it is plain that they have overborne the free

will of the suspect.” United States v. Okafor, 285 F.3d 842,

847 (9th Cir. 2002). Here, there is no indication that

Petrocelli’s will was overborne. Before making statements

on April 20, Petrocelli told officers he had several

“preconditions.” Sergeant Dickson testified that Petrocelli

was told that they would do what they could, but that no

promises were made. His interrogators’ partial compliance

with his preconditions, while perhaps an inducement to talk,

hardly constituted an overbearing of his will.

Petrocelli also contends that his April 20 and 27

statements were involuntary because, on April 19, Sergeant

Barnes told him that he thought talking to the detectives

“could do . . . nothing but help.” In Henry v. Kernan,

197 F.3d 1021 (9th Cir. 1999), we held that a confession was

involuntarywhen the interrogating officer ignored a suspect’s

clear invocation of his right to counsel and stated, “Listen,

what you tell us we can’t use against you right now.” Id. at

1027. We noted that the officers’ refusal to cease questioning

in the face of repeated requests for counsel “generate[d] a

feeling of helplessness” and that the officers deliberately

violated Miranda in order to obtain a statement they could

use for impeachment purposes. Id. at 1028–29.

The circumstances of the Henry interrogation are

significantlydifferent from those of Petrocelli’s interrogation. 
PETROCELLI V. BAKER 27

As discussed above, Petrocelli never clearly invoked his right

to counsel on April 19. When Petrocelli was asked if he was

requesting a lawyer, he responded “no.” The officers’

attempts to clarify whether Petrocelli was invoking his rights

differentiate the April 19 interrogation from the Henry

interrogation, both because they likely reduced the feeling of

helplessness that concerned us in Henry and because they

suggest the detectives were not attempting deliberately to

violate Miranda. Considering the totality of the

circumstances, Sergeant Barnes’ remark was not sufficiently

coercive to render Petrocelli’s April 20 and 27 statements

involuntary.

3. Jury Instruction on Premeditation and Deliberation

Petrocelli contends that the jury instruction defining

“premeditation” and “deliberation” violated due process by

collapsing the two requirements and relieving the State of its

burden of proving that the killing was both deliberate and

premeditated. See Byford v. State, 994 P.2d 700, 712–15

(Nev. 2000); Polk v. Sandoval, 503 F.3d 903, 910–11 (9th

Cir. 2007), overruled in part by Babb v. Lozowsky, 719 F.3d

1019, 1028–30 (9th Cir. 2013). The district court concluded

that Petrocelli had not exhausted this claim and required

Petrocelli either to abandon the claim or risk dismissal of his

petition. Faced with this choice, Petrocelli filed a notice of

abandonment “of all unexhausted claims.” Petrocelli

contends that the district court erroneously determined that

the claim was unexhausted.

“Exhaustion requires the petitioner to ‘fairly present’ his

claims to the highest court of the state.” Cooper v. Neven,

641 F.3d 322, 326 (9th Cir. 2011) (quoting O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999)). Petrocelli raised this
28 PETROCELLI V. BAKER

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 argues that his failure

to appeal to the Nevada Supreme Court should be excused,

contending that he could not have raised the claim until our

decision in Polk in 2007, when we held that a jury instruction

collapsing the premeditation and deliberation elements of

first-degree murder violates the Due Process Clause. Polk,

503 F.3d at 904. This argument is unpersuasive in light of

Petrocelli’s having raised this claim in the state district court,

before we decided Polk, and in light of his assertion that this

claim was based “on clearly established and long existing

federal law, namely Sandstrom v. Montana, 442 U.S. 510

(1979) and Francis v. Franklin, 471 U.S. 307 (1985).”

B. Penalty Phase Estelle Claim

Petrocelli makes several penalty phase claims. In one of

them, he contends that Dr. Gerow’s testimony violated his

Fifth and Sixth Amendment rights, articulated in Estelle v.

Smith, 451 U.S. 454 (1981). We agree with this contention,

and on that basis grant the writ as to the death penalty. We

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

1. Waiver

The district court held that Petrocelli’s Estelle claim was

neither unexhausted nor procedurally defaulted, and that the

Nevada Supreme Court denied it on the merits. On appeal to

us, the State does not contest this holding. See Robinson v.

Lewis, 795 F.3d 926, 934 (9th Cir. 2015) (holding that a

petitioner waived an argument by failing to dispute the

district court’s rejection of the argument in his briefing on

appeal).
PETROCELLI V. BAKER 29

Petrocelli spends six pages of his opening brief to us

arguing that the admission of Dr. Gerow’s testimony violated

Estelle. The State does not respond to Petrocelli’s Estelle

argument. In neither its answering brief nor its supplemental

brief does the State so much as cite Estelle, let alone respond

to Petrocelli’s argument. We therefore conclude that the

State has waived any defense to Petrocelli’s Estelle argument.

2. Estelle

Even if the State had not waived its defense to Petrocelli’s

Estelle argument, we would hold that the admission of Dr.

Gerow’s testimony violated Estelle and that the violation was

not harmless.

a. Estelle Violation

In Estelle, Dr. James Grigson was appointed by a Texas

trial court to examine capital defendant Ernest Smith to

determine his competency to stand trial. Grigson examined

Smith for about ninety minutes and determined that he was

competent. Grigson gave no Miranda warning to Smith

during the course of the examination. At the time of the

examination, Smith’s Sixth Amendment right to counsel had

attached. Grigson did not notify Smith’s attorney that he

would examine his client.

Dr. Grigson testified, over objection, during the penalty

phase of Smith’s trial as to his future dangerousness. He

testified that Smith was “a very severe sociopath”; that Smith

“will continue his previous behavior”; that Smith’s

sociopathic condition will “only get worse”; and that there “is

no treatment, no medicine . . . that in any way at all modifies

or changes this behavior.” 451 U.S. at 459–60 (alteration in
30 PETROCELLI V. BAKER

original) (internal quotation marks omitted). The jury

returned a verdict of death.

The Supreme Court held that Dr. Grigson’s testimony

violated the Fifth and Sixth Amendments. The Court held

that the Fifth Amendment privilege against self-incrimination

applied, and that Miranda warnings were required because

“Dr. Grigson’s prognosis as to future dangerousness rested on

statements [Smith] made . . . in reciting the details of the

crime.” Id. at 464. “When Dr. Grigson went beyond simply

reporting to the court on the issue of competence and testified

for the prosecution at the penalty phase on the crucial issue of

respondent’s future dangerousness, his role . . . became

essentially like that of an agent of the State.” Id. at 467. The

Court held that the Sixth Amendment right to counsel applied

because “adversary judicial proceedings” had been initiated

against Smith, and that Grigson’s interview was a “critical

stage” of the proceedings. Id. at 469–70. “[Smith] was

denied the assistance of his attorneys in making the

significant decision of whether to submit to the examination

and to what end the psychiatrists’s findings could be

employed.” Id. at 471.

Estelle was decided in May 1981. Dr. Gerow interviewed

Petrocelli in Washoe County Jail almost a year later, in April

1982. Petrocelli’s trial took place during the last week of July

and first week of August 1982.

In addressing Petrocelli’s third petition for postconviction relief, the state district court heard testimony from

Dr. Gerow and from defense counsel Wishart, and received

into evidence the Washoe County Jail visitors’ log and

Gerow’s April 27 letter to Prosecutor Laxalt. In rejecting a

claim of ineffective assistance of counsel, the court made
PETROCELLI V. BAKER 31

factual findings directly relevant to Petrocelli’s Estelle claim. 

The court wrote:

The sequence of events appears to be as

follows: Petitioner sought a psychiatrist on

April 20, 1982. Laxalt briefed Gerow on

April 21, and on that date, [Gerow]

interviewed the Petitioner. Defense Attorney

Wishart and Investigator Ford also

interviewed Petitioner on April 21, 1982

subsequent to an appointment in the justice

court on that date. It is not clear as to whether

the doctor or the lawyer arrived at the jail

first.

The court wrote, further, “Dr. Gerow and Prosecutor Laxalt

are not entirely clear nor consistent about the purpose for

which the doctor was hired. However, Gerow makes it clear

that he informed Petitioner that the interview was not

confidential and that he would see Petitioner again on an asneeded basis.” The court concluded:

Dr. Gerow’s understanding of his engagement

was to determine Petitioner’s competency and

to render some further treatment. . . . No

reasonably effective trial or appellate counsel

would conclude from this record that Dr.

Gerow was a court-authorized psychiatrist nor

an agent for the prosecutor.

The state district court’s findings are “not fairlysupported

by the record” and thus are not entitled to a presumption of

correctness. Silva, 279 F.3d at 835 (quoting former 28 U.S.C.
32 PETROCELLI V. BAKER

§ 2254(d)(8)). Indeed, its findings are demonstrably wrong

in nearly every particular.

First, it is not true that counsel for Petrocelli was

appointed on April 21, the day of Dr. Gerow’s interview. 

Rather, the appointment was made the day before, on April

20.

Second, it not true that there is an ambiguity “as to

whether the doctor or the lawyer arrived at the jail first.” The

visitors’ log at the Washoe County Jail is unambiguous. 

Defense attorney Wishart and investigator Ford signed the

visitors’ log at about 1:50 pm. They left at about 2:20 pm. 

Dr. Gerow signed the visitors’ log at about 3:50 pm.

Third, it is not true that “[n]o reasonably effective . . .

counsel would conclude . . . that Dr. Gerow was . . . an agent

for the prosecutor.” Gerow wrote “D.A.” in the

“relationship” box of the visitors’ log. Wishart knew Gerow

well. He testified in post-conviction proceedings that Gerow

had a “prosecution bias,” and that he never would have hired

him.

Fourth, it is not true that Dr. Gerow “ma[de] clear that he

informed Petitioner . . . that he would see Petitioner again on

an as-needed basis.” Gerow informed Prosecutor Laxalt in

his April 27 letter that he would see Petrocelli on an “‘as

needed’ basis.” Gerow testified in state court post-conviction

proceedings that he meant “as needed by Mr. Laxalt.”

Fifth, it is not true that “Dr. Gerow’s understanding of his

engagement was . . . to render some further treatment.” 

Gerow never had any understanding that he would provide

treatment to Petrocelli. Petrocelli was under the illusion that
PETROCELLI V. BAKER 33

Gerow had come to see him in response to his request for

psychiatric counseling, but Gerow was under no such illusion.

The facts are that Prosecutor Laxalt asked Dr. Gerow to

visit Petrocelli in the Washoe County Jail to determine his

competency to stand trial. Gerow interviewed Petrocelli in

the jail in the late afternoon of April 21, shortly after defense

attorney Wishart and investigator Ford had visited him. The

Reno Justice Court had appointed the Washoe County Public

Defender’s office as counsel for Petrocelli the day before, on

April 20. Wishart and Ford’s names and signatures were on

line three of the visitors’ log of the jail, with the notation

“WCPD/ATT.” Gerow signed in as a visitor on line four of

the same page with the notation “D.A.” Wishart’s name and

capacity would have been easily visible to Gerow when he

signed in. Gerow never sought permission from Wishart to

evaluate Petrocelli. Laxalt never asked Gerow to provide

treatment to Petrocelli, and Gerow never provided any. On

April 27, Gerow wrote a letter to Laxalt reporting that he

believed Petrocelli to be competent, and volunteered to

provide further assistance to Laxalt “as needed.” Gerow

testified during the penalty phase of Petrocelli’s capital trial. 

He testified, based on his interview with Petrocelli on April

21, that Petrocelli was dangerous and not treatable. Gerow’s

final words during direct examination were, “There is no

cure.”

The parallels between Estelle and this case are striking. 

Dr. Grigson, like Dr. Gerow in this case, visited the defendant

in jail to determine his competency to stand trial. Grigson,

like Gerow, failed to provide Miranda warnings. Grigson,

like Gerow, was acting as an agent of the state. Indeed, the

case against Gerow’s testimony is even stronger than against

Grigson’s, for Grigson was appointed by the court, whereas
34 PETROCELLI V. BAKER

Gerow was acting at the request of the prosecutor. The

defendant in Estelle, like Petrocelli, already had appointed

counsel. Grigson, like Gerow, did not seek or obtain

permission from defendant’s counsel to visit or evaluate his

client. Grigson, like Gerow, testified during the penalty

phase of defendant’s trial that the defendant was incurable.

We conclude from the foregoing that the admission of Dr.

Gerow’s testimony during the penalty phase of Petrocelli’s

trial was a flagrant violation of his Fifth and Sixth

Amendment rights under Estelle.

1

b. Harmless Error

An “error of the trial type” is not harmless if it “had

substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637

(1993) (quotingKotteakos v. United States, 328 U.S. 750, 776

(1946)). “There must be more than a ‘reasonable possibility’

that the error was harmful.” Davis v. Ayala, 135 S. Ct. 2187,

2198 (2015) (quoting Brecht, 507 U.S. at 637). “[R]elief is

appropriate only if the prosecution cannot demonstrate

harmlessness.” Id. at 2197. Where a judge “is in ‘grave

doubt as to the harmlessness of the error, the habeas

petitioner must win.’” Pensinger v. Chappell, 787 F.3d 1014,

1029 (9th Cir. 2015) (quoting California v. Roy, 519 U.S. 2,

1 Even if the introduction of Dr. Gerow’s testimony could be

understood as a rebuttal of Petrocelli’s psychological evidence that

suggested that Petrocelli would benefit from treatment, see Buchanan v.

Kentucky, 483 U.S. 402, 422–23 (1987), the admission of the testimony

would still violate the Sixth Amendment because Petrocelli’s counsel

never received notice of the examination, see Powell v. Texas, 492 U.S.

680, 685 (1989) (per curiam).
PETROCELLI V. BAKER 35

5 (1996) (per curiam)). We conclude that the Estelle error

was not harmless.

The jury knew that Petrocelli had committed two

murders. He was on trial for murdering James Wilson, and

the jury had been told that he had also murdered Melanie

Barker. Maureen Lawler, Barker’s mother, testified at the

penalty phase as to the circumstances of the three-day

kidnaping in Washington State. Petrocelli was death-eligible

because when he killed Wilson he had already been convicted

of kidnaping Barker. The jury had ample basis, both legal

and emotional, for imposing a capital sentence. The question

before us is whether it would have done so absent Dr.

Gerow’s testimony. The precise question is whether there

was “more than a ‘reasonable possibility’” that the jurywould

have imposed a life sentence if it had not heard Gerow’s

testimony. Davis, 135 S. Ct. at 2198 (quoting Brecht,

507 U.S. at 637). The burden is on the State to demonstrate

that there was not such a possibility.

In any capital case, particularly if a defendant might

eventually be released from prison, a central question at

sentencing is whether the defendant is likely to kill again. 

We put to one side the report of Dr. Petrich, who evaluated

Petrocelli before he killed Wilson and Barker. Not counting

Petrich’s report, there was evidence from three medical

professionals who diagnosed Petrocelli, assessed his

dangerousness, and evaluated his amenability to treatment.

Dr. Gutride reported that Petrocelli “cried openly” during

his interview, and that his “distraught behavior had the

quality of his practically begging for help.” He reported that

Petrocelli “desperately want[ed] to know what is the matter

with him” and told Gutride that he had “called crisis lines in
36 PETROCELLI V. BAKER

every city, but [had] been unable to get any help.” Gutride

observed that “[t]he personal distress [Petrocelli] exhibited

during the interview seems genuine” and that Petrocelli “may

truly desire some mental health treatment.” Gutride wrote

that Petrocelli’s “ability to profit from such treatment is

questionable” because of his distrust of others, and he

concluded that “treatment should be offered in a setting

where the client can be closely monitored.” In his live

testimony, Gutride stated that his diagnosis did not “imply an

individual is unable to think properly or conduct themselves

conventionally. It relates mostly to a style 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 experience as one of asking for help and not

getting it.” Petrocelli “expresse[d] a wish for further

evaluation or treatment so he [could] find out whether or not

he killed on purpose.” Chappel concluded that “a more

extensive evaluation” would be useful in order for Petrocelli

“to have a better understanding of the reasons for his loss of

impulse control and his reason for killing someone who was

close to him.” Chappel wrote that “[a] period of evaluation

and a trial of treatment might serve a useful purpose in

preventing any further homicidal outbursts of rage on his

part.”

Both Dr. Gutride and Dr. Chappel concluded that

Petrocelli wanted mental health treatment, and that he felt

that he had sought and been denied such treatment. Both

doctors held out the possibility of treatment. Gutride

acknowledged that Petrocelli’s abilityto profit from treatment

was “questionable” because of his distrust of others, but he

did not state that Petrocelli was untreatable. Rather, he
PETROCELLI V. BAKER 37

recommended that Petrocelli be “closely monitored” during

treatment. Chappel stated that treatment could be useful both

for Petrocelli’s own understanding and in order to prevent

“further homicidal outbursts.”

Dr. Gerow’s testimony was inconsistent with the reports

of Drs. Gutride and Chappel. Gerow stated unequivocally

that Petrocelli was dangerous and would always remain so. 

He testified that Petrocelli had a psychopathic personality for

which there is “no treatment at all.” He elaborated, “A

psychiatrist doesn’t treat the condition because it’s not

treatable.” Gerow’s last words on direct examination were,

“There is no cure.”

Dr. Gerow’s live testimony likely had a greater impact on

the jury than the analyses of Drs. Gutride and Chappel. 

Defense counsel Wishart chose not to put Gutride and

Chappel on the stand, submitting only their written reports. 

Prosecutor Laxalt called Gutride to the stand in an attempt to

undermine his diagnosis and assessment of dangerousness on

the ground that Petrocelli had “faked ‘bad’” when taking

formal intelligence tests. Gutride insisted that his diagnosis

was correct, and that the diagnosis did not “imply an

individual is unable to think properly or conduct themselves

conventionally.” Gutride’s live testimony was very short,

occupying not quite two pages of transcript. His testimony

was followed directly by Gerow’s more extensive live

testimony that conflicted with Gutride and Chappel’s written

reports and Gutride’s brief testimony. See Satterwhite v.

Texas, 486 U.S. 249, 259–60 (1988) (referring to a

psychiatrist’s testimony that defendant was “beyond . . .

rehabilitation” as his “most devastating” statement).
38 PETROCELLI V. BAKER

The effect of Dr. Gerow’s testimony was magnified by

Jury Instruction 5, quoted above. Jury Instruction 5 indicated

to the jury that even if it sentenced Petrocelli to life without

parole, he might nonetheless be released by the Nevada Board

of Pardon Commissioners.2 Prosecutor Laxalt made sure that

the jury understood the implications of Jury Instruction 5. In

closing argument he emphasized Dr. Gerow’s testimony that

Petrocelli was an incurable psychopath, and the possibility of

Petrocelli’s release on parole:

He will never change. There is no cure for

being a psychopath. . . . Should the

community bear the risk of ever having this

defendant on the street again, walking free, on

the run?

. . .

[N]o society, no community, no county,

no city, no state, should ever have to risk

again Tracy Petrocelli on the street.

. . .

I ask you to consider years down the road

when the decisions are being made at the

Pardons Board and the Parole Board and we

2

In Sechrest v. Ignacio, 549 F.3d 789, 810 (9th Cir. 2008), we held

in a Nevada capital case that an instruction identical to Jury Instruction 5

was unconstitutional because it was inaccurate. At the time of Sechrest’s

trial, “an individual who [was] on probation at the time he commit[ed]

another offense . . . [was] not eligible for parole by the Parole Board on

that offense.” Id. at 810. We do not reach the question whether Jury

Instruction 5 was constitutional at the time of Petrocelli’s trial. 
PETROCELLI V. BAKER 39

have all gone our separate ways and Mr.

Petrocelli is there, the sole person applying

for the pardon or applying for parole crying

tears of remorse and telling the people how it

wasn’t he who was the murderer of Mr.

Wilson it was an accident and he got

railroaded, and telling people that it wasn’t he

who was the murderer of Melanie it was an

accident, and he was railroaded. . . .

Rehabilitation to be imposed in this case?

That’s a sad fact, but it’s to be faced.

It is possible that Petrocelli has not preserved, on appeal

to us, his ability to challenge the district court’s dismissal of

Claim 4, challenging Jury Instruction 5. But whether

Petrocelli may now challenge the instruction is irrelevant to

the harmlessness of the Estelle violation. In determining

harmlessness, the question before us is not the

constitutionality of the instruction but rather its effect on the

improper admission of Dr. Gerow’s testimony. Whether Jury

Instruction 5 is constitutional or not, its effect on Gerow’s

improperly admitted testimony is the same.

We have encountered Dr. Gerow before. He testified for

the prosecution in Sechrest in very much the same manner he

testified for the prosecution in the case before us. Gerow

testified that Sechrest “was an incurable sociopath” who was

“extremely dangerous and could not be rehabilitated.” 

Sechrest, 549 F.3d at 813. We held in Sechrest that the

combined effect of Gerow’s testimony and an instruction

identical to Instruction 5 “had a substantial influence on the

jury’s decision to sentence Sechrest to death.” Id. We

similarly conclude, in this case, that Gerow’s improperly

admitted testimony, understood in the light of JuryInstruction
40 PETROCELLI V. BAKER

5, “had [a] substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht, 507 U.S. at 637

(quoting Kotteakos, 328 U.S. at 776). Because there 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

We affirm the district court’s denial of Petrocelli’s

petition for a writ of habeas corpus with respect to the

conviction, but reverse with respect to the death sentence. 

We remand with instructions to grant the writ as to the

penalty unless, within a reasonable time, the State grants a

new penalty phase trial or imposes a lesser sentence

consistent with the law.

AFFIRMED in part, REVERSED in part, and

REMANDED.

CHRISTEN, Circuit Judge, concurring:

I agree that Petrocelli’s death sentence must be reversed. 

I write separately because, in my view, even if the State could

show that the prosecutor’s tactics had not prejudiced the

jury’s verdict, Petrocelli’s case is one of the very few in

which deliberate prosecutorial misconduct and egregious trial

errors warrant habeas relief. See Brecht v. Abrahamson,

507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and

especially egregious trial error, or one that is combined with

a pattern of prosecutorial misconduct, might warrant habeas
PETROCELLI V. BAKER 41

relief, even if the jury’s verdict is not substantially

influenced). Brecht’s footnote nine is rarely employed, but

the Fifth and Seventh Circuits have each relied on it one time

in cases where an error (or errors) did not easily fit into either

the “structural error” or “trial error” category. The errors in

Petrocelli’s case were equally pervasive, flouted Supreme

Court authority, and undermined the integrity of the criminal

justice process.

Tracy Petrocelli’s trial, from voir dire to the death penalty

verdict, lasted just ten days (July 26–30, 1982; August 2–6,

1982). The penalty phase took one day. The introduction of

evidence began at 11:30 AM on August 6, and the jury’s

verdict, a death sentence, was returned at 10:52 PM. The

defense introduced brief psychiatric reports but only called

Petrocelli to testify. The prosecution called Dr. Gerow, a

psychiatrist, to testify about Petrocelli’s mental condition. 

The majority opinion thoroughly and persuasively explains

how the prosecutor procured Dr. Gerow’s testimony and why

the prosecutor’s conduct was a flagrant violation of Estelle v.

Smith, 451 U.S. 454 (1981) (holding that a psychiatrist’s

testimony about the defendant’s future dangerousness in a

capital felony trial violated the defendant’s Fifth and Sixth

Amendment rights where the defendant was not given

Miranda warnings before his psychiatric examination).

A separate layer of error also infected this trial because

the State’s Estelle violation dovetailed with an inflammatory

jury instruction. Specifically, the trial court told the jury that

“[u]nder the laws of the State of Nevada, . . . [t]he State

Board of Pardon Commissioners . . . would have the power to

modify any sentence at a later date.” The prosecution told the

jury that Petrocelli might someday walk the streets “[a]mong

ordinary people” and “kill again” if the jury did not sentence
42 PETROCELLI V. BAKER

him to death. The context and nature of these combined

errors and misconduct so infected the integrity of the

proceedings as to defy categorization and the typical

harmlessness analysis.

Brecht’s harmless-error standard applies on collateral

review of federal constitutional trial errors. See Brecht,

507 U.S. at 622. Typically, “[t]rial error ‘occur[s] during the

presentation of the case to the jury,’ and is amenable to

harmless-error analysis because it ‘may . . . be quantitatively

assessed in the context of other evidence presented in order

to determine [the effect it had on the trial].’” Id. at 629

(alterations in original) (quoting Arizona v. Fulminante,

499 U.S. 279, 307–08 (1991)). Prosecutorial misconduct is

trial error. See Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.

2012). “At the other end of the spectrum of constitutional

errors lie ‘structural defects in the constitution of the trial

mechanism, which defy analysis by harmless-error

standards.’” Brecht, 507 U.S. at 629 (quoting Fulminante,

499 U.S. at 309). Structural errors, such as the deprivation of

the right to counsel, “infect the entire trial process” and

require automatic reversal of the conviction. Id. at 629–30;

see also Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir.

1994) (stating that unlike trial errors, structural errors “may

not be considered harmless”).

“Not every error, however, is easily shoe-horned into one

of those neat categories.” United States v. Harbin, 250 F.3d

532, 544 (7th Cir. 2001). “The nature, context, and

significance of the violation, for instance, may determine

whether automatic reversal or the harmless error analysis is

appropriate.” Id. (internal quotation marks and citation

omitted). In footnote nine of Brecht, the Supreme Court left

open the possibility “that in an unusual case, a deliberate and
PETROCELLI V. BAKER 43

especially egregious error of the trial type, or one that is

combined with a pattern of prosecutorial misconduct, might

so infect the integrity of the proceeding as to warrant the

grant of habeas relief, even if it did not substantially influence

the jury’s verdict.” 507 U.S. at 638 n.9. “This hybrid,

[f]ootnote [n]ine error as we denominate it, is thus

assimilated to structural error and declared to be incapable of

redemption by actual prejudice analysis.” Hardnett, 25 F.3d

at 879. “The integrity of the trial, having been destroyed,

cannot be reconstituted by an appellate court.” Id.

In Petrocelli’s case, the first error arose when the

prosecutor used a psychiatrist to interview Petrocelli without

informing his lawyer or advising him of his right to remain

silent. The Supreme Court held in Estelle that the

prosecution may not rely on statements made by a defendant

during a psychiatric examination to prove future

dangerousness if the defendant was not apprised of his

Miranda rights and was denied the assistance of his counsel

in deciding whether to submit to the examination. 451 U.S.

at 467–71 (“When Dr. Grigson went beyond simply reporting

to the court on the issue of competence and testified for the

prosecution at the penalty phase on the crucial issue of

respondent’s future dangerousness, his role changed and

became essentially like that of an agent of the State

recounting unwarned statements made in a postarrest

custodial setting.”). Decided in May of 1981, Estelle had

been on the books for about a year when the state prosecutor

enlisted Dr. Gerow to interview Petrocelli, and it had been

controlling law for about fifteen months by the time the

prosecutor called Dr. Gerow to testify. Despite Estelle’s clear

rule that the government may not circumvent Miranda by

using a health care professional as an agent to interview a

defendant without the benefit of defense counsel, the
44 PETROCELLI V. BAKER

prosecutor responded to Petrocelli’s request for psychiatric

help by sending Dr. Gerow to the jail to interview Petrocelli

under the pretense of providing mental health counseling. 

There is no question that the prosecutor’s goal was to use the

result of the interview to prosecute Petrocelli, not to respond

to Petrocelli’s request for mental health counseling. The

prosecutor later said as much, as did Dr. Gerow. It is equally

clear that Petrocelli could not have anticipated that the doctor

would testify for the prosecution.

In state post-conviction proceedings, the prosecutor

testified and agreed that he asked Dr. Gerow to interview

Petrocelli because he was concerned about a possible

competency or insanity defense. The prosecutor testified that

he “want[ed] to see what ma[de] [Petrocelli] tick,” and also

candidly admitted that he sent Dr. Gerow to interview

Petrocelli for “a dual purpose.” According to the prosecutor,

“Mr. Petrocelli wanted to see a counselor, a psychiatrist. I

wanted him to be seen by one in order to make sure that we

had a competent defendant.” The prosecutor selected Dr.

Gerow, as opposed to another psychiatrist or psychologist,

because he “had a lot of trust in Dr. Gerow.” Despite the rule

from Estelle, the prosecutor recalled that he had not

instructed Dr. Gerow to tell Petrocelli that he was there at the

request of the prosecution, that he had not instructed Dr.

Gerow to advise Petrocelli of his Miranda rights, and that he

had not instructed Dr. Gerow about what to do if Petrocelli

mentioned that he was represented by counsel—all because

Dr. Gerow was supposedly seeing Petrocelli “jointly.” 

Although the prosecutor described the interview as having a

“dual purpose,” defense counsel Lawrence Wishart denied

that there was any joint defense purpose for the interview. He

was not informed of the interview, nor consulted about the

selection of the expert. In fact, Wishart was familiar with this
PETROCELLI V. BAKER 45

psychiatrist, and he testified that he would not have hired Dr.

Gerow because he thought Dr. Gerow had “a prosecution

bias.”

Dr. Gerow also testified in the post-conviction

proceedings. He described conferring with the prosecutor by

telephone before meeting with Petrocelli, and acknowledged

that he met with Petrocelli on April 21, 1982, at the

prosecutor’s request, to determine whether Petrocelli was

competent to stand trial and to assess Petrocelli’s ability to

distinguish right from wrong. Dr. Gerow doubted very much

that the prosecutor instructed him to advise Petrocelli of his

Miranda rights, and he was definite in his testimony that he

did not do so. He also confirmed that when he wrote in his

one-page letter report to the prosecutor that he would see

Petrocelli again “as needed,” he meant as needed by the

prosecution, not as needed by Petrocelli.1In short, the record

shows that Dr. Gerow’s interview with Petrocelli had no

therapeutic purpose; it was arranged to advance the

prosecution’s case in blatant violation of Estelle.

1 Dr. Gerow’s report verifies that he examined Petrocelli at the

prosecutor’srequest, that Petrocelli was cooperative and an able historian,

and that a mental status examination was performed. In seven lines of

text, a single paragraph summarizes Petrocelli’s social history from

childhood, his mental health history from childhood, and the impression

that he was not psychotic when interviewed. The letter then deems

Petrocelli competent to stand trial, and states that Dr. Gerow will see

Petrocelli again on an “as needed” basis.
46 PETROCELLI V. BAKER

The prosecution exploited its Estelle violation to full

advantage at trial.2 Having interviewed Petrocelli without

informing him of his Miranda rights and without notifying

Petrocelli’s counsel, Dr. Gerow told the jury that he had

diagnosed Petrocelli as “a psychopathic.” He testified that

although the “violence potential” of psychopaths “varies,” the

most concerning traits associated with psychopaths

(incurability, callousness, a high propensity for violence)

“describe[] [Petrocelli] quite well.” Dr. Gerow’s last

statement on direct examination went to Petrocelli’s future

dangerousness. He told the jury: “There is no cure.” The

prosecution’s closing argument summarized the reports of the

doctors who had evaluated Petrocelli, but relied most heavily

on Dr. Gerow’s testimony. The prosecutor adopted Dr.

Gerow’s terminology, referring to Petrocelli as “a . . .

psychopathic,” and ended his remarks about Petrocelli’s

“psychopathic” diagnosis by saying: “And we can go to Dr.

Gerow. . . . [T]he sad and terrifying fact is [Petrocelli] will

continue to do this.”

2 The State relies heavily on the Nevada Supreme Court’s ruling that

even if Petrocelli had properly preserved his claim that Dr. Gerow’s

interview violated Miranda v. Arizona, Petrocelli failed to show that it

prejudiced him in light of other compelling testimony about future

dangerousness. The State also repeats the Nevada trial court’s factual

errors and raises most of the arguments that the majority opinion

addresses: (1) the incorrect statement that Petrocelli had not yet been

appointed counsel when Dr. Gerow interviewed him; (2) the incorrect

statement that Dr. Gerow informed Petrocelli that he would see him again

on an “‘as needed’ basis”; (3) that it is not entirely clear for what purpose

Dr. Gerow saw Petrocelli (perhaps not as an agent of the prosecutor); and

(4) that any error was harmless because “[t]he jury heard other compelling

evidence about Petrocelli’s violent propensities during the guilt phase of

his trial.” Like the majority, I conclude that the State has not raised any

persuasive defense to the alleged Estelle violation.
PETROCELLI V. BAKER 47

To make matters worse, the prosecutor emphatically,

repeatedly, and definitively emphasized 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 this defendant on the street again,

walking free, on the run?” He elaborated:

What psychopath means, essentially, is a

mean, bad person who has never changed and

who will continue to victimize. . . . [N]o

society, no community, no county, no city, no

state, should ever have to risk again Tracy

Petrocelli on the street. They should not have

to risk their fathers or daughters, or their

brothers or themselves, that he might take a

fancy to killing them as he has done, as you

see from the people in this case . . . .

In his rebuttal, the prosecutor continued:

But ladies and gentlemen, I ask you to

consider years down the road when the

decisions are being made at the Pardons

Board and the Parole Board and we have all

gone our separate ways and Mr. Petrocelli is

there, the sole person applying for the pardon

or applying for parole crying tears of remorse

and telling the people how it wasn’t he who

was the murderer of Mr. Wilson it was an

accident and he got railroaded, and telling

people that it wasn’t he who was the murderer

of Melanie it was an accident, and he was

railroaded.
48 PETROCELLI V. BAKER

Contrary to these statements, Petrocelli categorically was

ineligible for parole under a statute passed by the Nevada

legislature just months before his sentencing because he was

on probation when he murdered James Wilson. Had the jury

sentenced Petrocelli to life in prison without the possibility of

parole, the prosecutor could not have known whether the

State Board of Pardon Commissioners (Board) would have

had the power to release him. See Nev. Rev. Stat.

§ 213.1099(4)(e) (prohibiting the reduction of a sentence to

one allowing parole if the convicted individual had “[failed]

in parole, probation, work release or similar programs”).3

There is no question the prosecutor was aware that

Petrocelli was on probation and had failed in “similar

programs” at the time of this crime. Petrocelli had been

convicted of kidnaping and he had twice left a drug treatment

program. The prosecutor argued that Petrocelli’s previous

conviction for kidnaping should be treated as an aggravating

factor, and he cross-examined Petrocelli about leaving the

drug treatment program.

On appeal, the State’s defense of Jury Instruction 5 and

the prosecutor’s unequivocal statement that Petrocelli could

be granted parole if not sentenced to death, is that, before the

statutory amendment, Nevada’s Board generally had the

authority to commute a sentence of life without the possibility

of parole. But Petrocelli was on probation at the time of this

crime and had twice absconded from a drug rehabilitation

program. The Nevada Supreme Court declined to grant

3 The implementation of § 213.1099(4) was contingent upon passage

of a constitutional amendment that was put to the voters three months after

Petrocelli’s sentencing, and the retroactivity ofthe statute had not yet been

determined.
PETROCELLI V. BAKER 49

Petrocelli relief on the basis of Jury Instruction 5, but it

directed trial courts to tell future juries: “Life imprisonment

without the possibility of parole means exactly what it says,

that the Defendant shall not be eligible for parole.” Petrocelli

v. State, 692 P.2d 503, 511 (1985), holding modified after

statutory amendment by Sonner v. State, 930 P.2d 707 (1996).

The backdrop for the prosecutor’s egregious Estelle trial

error was this definitive statement of Nevada law suggesting

the possibility of parole, which the prosecutor hammered

during closing argument. If this combination does not put

Petrocelli’s case in Brecht’s footnote nine category, the scale

certainly tips when one considers that these were not isolated

incidents or inadvertent mistakes. In September 1983, the

same prosecutor’s office called Dr. Gerow to testify about a

defendant’s future dangerousness during the penalty phase of

another death penalty case, Sechrest v. Ignacio, 549 F.3d 789,

798–99 (9th Cir. 2008). In Sechrest, Dr. Gerow was

originally hired by defense counsel but he switched sides to

become a prosecution witness. See id. at 816. Our decision

in that case explains that Dr. Gerow interviewed Sechrest

without giving him Miranda warnings or otherwise informing

the defendant or his counsel that he might testify for the

prosecution. See id. at 798–99. We concluded in Sechrest

that “Dr. Gerow’s testimony that [the defendant] was

extremely dangerous and could not be rehabilitated likely had

a substantial influence on the jury’s decision to sentence [the

defendant] to death.” Id. at 813.

Further, Petrocelli’s trial was not the last capital case in

which this prosecutor’s office inaccurately represented that

the defendant categorically would be eligible for parole if the

jury did not impose the death sentence. In Sechrest, decided

after § 213.1099(4) became effective, the prosecution told the
50 PETROCELLI V. BAKER

jury that “the Board of Pardon Commissioners could change

[the defendant’s] sentence,” id. at 798, and warned that if it

did not impose a death sentence, it was “risk[ing] the life of

some other person or child,” id. at 811 (alteration in original). 

As a matter of fact and law, that was not true. Sechrest was

ineligible for parole because he was on probation at the time

he committed his offense, but an inaccurate jury instruction

“reinforced the prosecutor’s argument that the Board of

Pardon Commissioners was the entity responsible for

deciding Sechrest’s term of imprisonment.” Id. at 812.

In Sechrest we held: “Bottom line: the prosecutor misled

the jurors to believe that if they did not impose the death

penalty, [the defendant] could be released on parole and

would kill again. In making his erroneous assertions, the

prosecutor . . . most likely inflamed the passions of the jury.” 

Id. at 812. Sechrest establishes that this prosecutor’s office

had a game plan to disingenuously scare the jury about the

likelihood that the defendant might be released to walk

Reno’s streets again.

In my view, Petrocelli’s appeal presents “the unusual case

where the combination of misconduct and error infected the

entire proceeding.” Hardnett, 25 F.3d at 880 (internal

quotation marks omitted). The prosecution’s misuse of Dr.

Gerow, coupled with the inflammatory and misleading

statements of Nevada law it used in at least two capital cases,

pushes this case across the line into footnote nine error of the

sort that led two other appellate courts to grant habeas relief. 

See United States v. Bowen, 799 F.3d 336 (5th Cir. 2015);

United States v. Harbin, 250 F.3d 532, 545 (7th Cir. 2001).

Bowen arose from the prosecution of five former police

officers involved in the killing of two unarmed men after
PETROCELLI V. BAKER 51

Hurricane Katrina (the “Danziger Bridge shootings”) and an

alleged cover-up. Bowen, 700 F.3d at 339–40. Federal

prosecutors in charge of the case engaged in a series of

“ethical lapses” during the high-profile trial. Id. at 339. 

Although the Fifth Circuit could not conclude that the

prosecutorial misconduct was “outcome-determinative,” id.

at 356, the court held that footnote nine error occurred when

prosecutors leaked confidential information, anonymously

posted on online news sources, and withheld information

from the district court, id. at 339–46, 353–54. According to

the Fifth Circuit: “The [prosecutors’] online commenting

alone, which breached all standards of prosecutorial ethics,

gave the government a surreptitious advantage in influencing

public opinion, the venire panel, and the trial itself.” Id. at

353. “This case thus presents the unclassifiable and pervasive

errors to which the Supreme Court referred in Brecht when it

identified a category of errors capable of infecting the

integrity of the prosecution to a degree warranting a new trial

irrespective of prejudice.” Id.

The Seventh Circuit considered an egregious error that

similarly tipped the scales in favor of the prosecution in

Harbin. There, the prosecution, but not the defense, was

allowed to “save” a peremptory juror challenge until the sixth

day of an eight-day trial. See 250 F.3d at 537–39. Although

no one argued that the alternate juror who replaced the

excused juror was biased, the Seventh Circuit held that the

error defied the typical harmless error analysis, should be

treated as structural, and required reversal, in accord with the

“footnote nine exception.” See id. at 544–48. The Seventh

Circuit reasoned: “[T]he error was serious enough to effect

a shift in the total balance of advantages in favor of the

prosecution, which . . . could deprive defendants of a fair

trial.” Id. at 547.
52 PETROCELLI V. BAKER

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

misconduct shifted the total balance of the penalty phase. 

This misconduct was deliberate, and egregious, and it

compromised the integrity of the trial to a degree warranting

a new sentencing trial with or without a showing that the

errors actually influenced the jury’s verdict.

For these reasons, I respectfully concur in the majority

opinion, but I would also grant habeas relief based on

Brecht’s footnote nine.