Gollehon v. Mahoney, 2010 U.S. App. LEXIS 23944

In 1990 Gerald Pileggi was beaten to death by inmates William Gollehon and Douglas Turner at Montana State Prison.
Gollehon and Turner were charged with deliberate homicide; an accountability theory was added to allow conviction without distinguishing who struck the fatal blows.
Montana Supreme Court held accountability is the same offense as deliberate homicide, making death a possible penalty, affirmed on direct appeal.
Gollehon later challenged the death sentence on habeas review, arguing lack of fair notice that accountability could lead to death.
The district court denied summary judgment and habeas relief; the Ninth Circuit granted a COA to review the due process issue pre-AEDPA.
The court analyzes whether Montana statutes and case law provided sufficient notice that aiding and abetting accountability to a homicide could be death-eligible.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Montana's accountability statute provide fair notice of death penalty eligibility?	Gollehon contends there was no explicit penalty for accountability; default penalties did not apply to accountability for deliberate homicide.	Gollehon had notice through the statutory scheme that accountability carries the same penalty as the underlying offense.	Yes; accountability carried the same penalties as the offense, including death for deliberate homicide.
Did prior Montana and other authority impart fair notice that aiders/abettors could receive death for deliberate homicide?	Lack of explicit pre-offense decisions showing death could be imposed for accountability.	Precedent and statutory history reasonably warned that accountability is a conduit for liability for the underlying crime with the same penalties.	Yes; prior decisions and fluently interpreted statutes provided notice that assistors could be death-eligible.
Did common-law history and statutory construction support the death-penalty result for accountability?	Common-law distinctions between principals and accessories could limit penalties for accountability.	Montana's modern accountability scheme treats accountability as punishable to the same extent as the principal; history supports this.	Yes; historical and statutory evolution support equal penalties for aiders/abettors and principals.

Bouie v. City of Columbia, 378 U.S. 347 (1964) (Bouie fairness notice standard for due process)
Lanier, 520 U.S. 259 (1997) (notice that the law as applied must be predictable)
Gore v. BMW of N. Am., Inc., 517 U.S. 559 (1996) (due process and fair notice in penalties)
Webster v. Woodford, 369 F.3d 1062 (9th Cir. 2004) (statutory interpretation and notice analysis)
Matter of B.D.C., 687 P.2d 655 (Mont. 1984) (accountability as conduit for liability)
State v. Zadick, 419 P.2d 749 (Mont. 1966) (aiding and abetting as part of committing the offense)
State v. Senn, 795 P.2d 973 (Mont. 1990) (accountability not subject to default penalties)
State v. Riley, 649 P.2d 1273 (Mont. 1982) (20-year sentence for accountability in deliberate homicide)
In re McMaster, 529 P.2d 1391 (Mont. 1974) (aiding and abetting makes one a principal)
State v. Simon, 247 P.2d 481 (Mont. 1952) (aiding and abetting treated as principal for punishment)
State v. Holzapfel, 748 P.2d 953 (Mont. 1988) (accountability penalties evolving in Montana)
State v. Powers, 645 P.2d 1357 (Mont. 1982) (accountability penalties context)