Lead Opinion
Trаcy Petrocelli, a Nevada state prisoner under sentence of death, appeals the district court’s dismissal of his petition for a writ of habeas corpus asserting 28 grounds of relief. Petitioner argues that the district court erred in holding that: (1) petitioner had procedurally defaulted grounds 14-25; (2) he had abused the writ with respect to grounds 6, 9, and 26-28; and (3) grounds 1 and 12 were meritless.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Nevada Supreme Court, on direct appeal, found the following:
Tracy Petrocelli’s journey to Reno began in Washington where he killed his fiancee. He fled Washington and apparently drove to Colorado in a Corvette, to Oklahoma in a van and to Reno in a Datsun which he stole while “test driving” the vehicle. Upon arriving in Reno, Petrocelli decided he needed a four-wheel drive truck to get around in the snow. The next day, his search for a vehicle ultimately led to a local used car dеaler. The dealer, James Wilson, acceded to Petrocelli’s request for a test drive of a Volkswagen (VW) pickup, and the two drove off with the dealer at the wheel. At about 1:30 p.m., a Dodge dealer saw them driving north on Kietzke Lane. Approximately forty-five minutes later, a Reno patrolman saw one person driving a truck matching the description of the VW speeding toward Pyramid Lake.
That evening, Petrocelli was picked up on the Pyramid Highway and given a ride to Sutcliffe. He told the driver that his motorcycle had broken down. In Sutcliffe, Petrocelli got a ride to Sparks with a local game warden. Petrocelli then took a cab to Reno and apparently paid his fare from a two-inch roll of bills. The next day, the game warden and his partner looked for Petrocelli’s motorcycle. Instead, they found the VW truck with bloodstains and bullet holes on the passenger side. The car dealer’s body was found later that day in a crevice, covered with rocks, sagebrush and shrubbery. His back pockets were turned slightly inside out and empty; his wallet was missing. The victim, who usually carried large amounts of cash with him, had been shot three times with a .22 caliber weapon. One shot was tothe neck; another shot was to the heart. The third shot was to the back of the head from a distance of two to three inches. In the abandoned truck, .22 caliber bullet casings were found. When he was arrested, Petroeelli was carrying a .22 caliber semi-automatic pistol which he testified he always carried loaded and ready to fire. Ballistics tests on the casings found in the abandoned VW revealed that they had been fired from Petrocelli’s рistol. Tests on the bullet found in Wilson’s chest and a test bullet fired from Petrocelli’s pistol also revealed similar markings.
At trial, Petroeelli provided his own account of the killing. After driving off the car lot, the ear dealer stopped at a gas station and filled the truck. From the station, Petroeelli drove the truck. He and Wilson proceeded to argue about the price of the truck. Petroeelli laid $3,500.00 on the dashboard and offered a total of $5,000.00 cash. The car dealer was insulted and called him a “punk.” Later, on the way back, Wilson twice grabbed for the steering wheel. Petro-celli then pulled out his pistol and said: “Now who is the punk.” The victim laughed and • said he had a gun also, although Petroeelli never saw one. The car dealer tried to take the pistol from Petroeelli as he continued to drive. As they struggled, the gun went off two or three times. Petroeelli testified, “I knew it was shooting, and I was just trying to pull it away from him.... It was an accident. It was an accident. I didn’t do anything. I just tried to keep him from getting the gun.” Petroeelli drove to a nearby doctor’s office, went up to the door, but did not go in because he “didn’t know how to tell him [doctor] there was someone hurt, shot in the car.” Thereafter, Petroeelli went to a bowling alley and called the hospital, but “didn’t know what to say.” He then returned to the truck, drove to Pyramid Lake and hid the car dealer’s body under some rocks. Petroeelli began walking after his truck bogged down, but then returned to the vehicle to retrieve his gloves and the gun. He also picked up the car dealer’s wallet, took his money, threw the business and credit cards into the wind, and discarded the wallet. Petroeelli then wаlked to the highway where he obtained rides back to Reno.
Petrocelli v. State,
In April 1982, petitioner was indicted for first-degree murder and robbery with use of a deadly weapon. On April 20 and 21, 1982, petitioner was interviewed by the police and deputy district attorneys. Petitioner requested to see, and was interviewed by, a psychiatrist, on April 21, 1982.
On August 5, 1982, Petroeelli was convicted by a jury of first-degree murder and robbery with use of a deadly weapon. The jury did not indicate whether the first-degree murder conviction was for premeditated and deliberate murder or felony murder.
Petrocelli appealed his conviction and sentence to the Nevada Supreme Court on five grounds: First, he argued that the state trial court miseharacterized the reasonable doubt instruction to the jury (ground 1 of the present petition). Second, Petrocelli contended that admission of the prior bad act of his killing of his fiancee, Melanie Barber, violated state evidence rules (ground 2). Third, he argued that because he may have been convicted of felony murder, utilization of the underlying felony as an aggravating circumstance, without any proof of intent to kill, violated due process as a disproportionate sentence (ground 3). Fourth, he claimed that instructing the jury at sentencing of the possibility of pardon or parole violated state law and the Eighth and Fourteenth Amendments of the United States Constitution (ground 4). Fifth, he argued that the death sentence was disproportionate to the penalty imposed in similar cases (ground 5). The Nevada Supreme Court rejected all grounds of requested relief and affirmed the conviction and sentence. See Petrocelli,
On August 12, 1985, Petrocelli filed his first petition in state district court for post-conviction relief. He claimed ineffective assistance of counsel at both the guilt phase and the penalty phase in that trial counsel: (1) failed to obtain allegedly exculpatory evidence of his financial condition from the prosecution and government (grounds 7 and 8 in the present petition); (2) advised Petrocelli to testify on his own behalf (ground 10); (3) failed to call Dr. John Petrich, a psychologist, to testify on Petrocelli’s behalf (ground 11); (4) failed to object to evidence of Petrocelli’s prior kidnapping conviction as an aggravating factor (ground 12); аnd (5) failed to call Lloyd Johnson, a prisonmate of Petrocelli’s who allegedly would rebut testimony of another of Petrocelli’s prisonmates (ground 13). The state district court denied relief on all grounds, and the Nevada Supreme Court affirmed.
Petitioner then filed a petition for writ of habeas corpus in federal district court. Because the petition contained exhausted and unexhausted claims, it was dismissed without prejudice. Petitioner filed a second post-conviction petition in state court to exhaust his claims. The Nevada Supreme Court eventually held that all of the claims were procedurally barred. Petitioner then filed an amended petition in federal district court alleging 28 grounds of relief. The district court found that five of the grounds (6, 9, and 26-28) were an abuse of the writ, because they had not been included in the initial petition dismissed without prejudice by the district court. The court also found that grounds 14-25 were procedurally defaulted and that no cause and prejudice existed to excuse the default. The district court found that under Moran v. McDaniel,
On October 15, 1997, Petroeelli filed a timely notice of appeal. The district court denied a request for a CPC on November 20,1997, but we subsequently granted one.
Petroeelli does not appeal all of the district court’s determinations. In particular, Petroeelli only argues on appeal that the district court erred in finding: (1) procedural default of grounds 14-25; (2) abuse of the writ of grounds 6, 9, and 26-28; and (3) grounds 1 and 12 meritless.
II. STANDARD OF REVIEW
In Slack, the Supreme Court held that the right to appeal from a denial of the writ of habeas corpus is governed by the COA requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), so long as the notice of appeal is filed after April 24, 1996, the effective date of the AEDPA. See Slack,
The rule announced in Slack was applied to the case pending before the Court; thus, the holding of that case is retroactive to pending cases. See Harper v. Virginia Dep’t of Taxation,
Petitioner’s notice of appeal was filed after the effective date of the AED-PA. Accordingly, we vacate our earlier order granting petitioner a CPC, treat petitioner’s notice of appeal as an application for a COA,
a COA should issue (and an appeal of the district court’s order may be taken) if the prisoner shows, at least, [1] thatjurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutionаl right, and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Id. at 1600-01; see also id. at 1604. We may proceed to resolve either issue first, if the “answer [as to that issue] is more apparent from the record and arguments.”
III. DISCUSSION
A. COAs
1. Grounds 6, 9, and 26-28: Abuse of the Writ
When petitioner filed his first federal habeas petition, the district court dismissed it without prejudice, because it contained unexhausted claims. Petitioner then filed a second state petition for post-conviction relief to meet the exhaustion requirements. When рetitioner filed his amended federal petition, he asserted that ground 6 was “exhausted on direct appeal,” ground 9 was “partially exhausted on petitioner’s first petition for state post-conviction relief,” and grounds 26-28 were “raised for the first time.”
The district court found that “[t]he characterization of ground 9 has been materially changed from that which was presented to the state courts.” It also found that there was no exhaustion of ground 6 because “it was raised for the first time on a petition for rehearing in the Nevada Supreme Court,” and the “state supreme court does not consider issues raised for the first time on appeal.”
Petitioner contends that the district court erred in dismissing the claims as an abuse of the writ, but he does not contest the finding that the claims were not exhausted. Under Rule 9(b) of the Rules Governing Section 2254 cases, abuse of the
Our conclusion in this regard more than meets Slack’s requirement that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack,
Because the district court dismissed these claims on procedural grounds, petitioner has not had an opportunity to support them on the merits through briefing or argument, or the introduction of evidence. In Lambright v. Stewart,
Accepting petitioner’s allegations as true and taking a quick look at the underlying merits, we conclude' that in each of grounds 6, 9, and 26-28, petitioner has facially alleged the denial of a constitutional right — in particular, they allege violations of petitioner’s right to еffective assistance of counsel, his due process rights, and his Eighth Amendment rights. See Lambright,
2. Grounds 14-25: Procedural Default
The Nevada Supreme Court held that all of grounds 14-25 were procedurally defaulted. On that basis, the district court likewise dismissed those grounds as procedurally barred.
“In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner’s purported default.” Wells v. Maass,
Ninth Circuit case law on this issue is complex. In McKenna v. McDaniel,
Moreover, the power of this court to address plain error or issues of constitutional dimension sua sponte is well established. Because this case involves the ultimate punishment and because appellant’s claims of ineffective assistance of counsel are directly related to the merits of his claims, we will consider appellant’s claims on the merits.
Id. at 364. Rеlying on this language, we concluded that, because the Nevada Supreme Court exercises discretion to hear the merits of federal constitutional claims, the procedural bar was not adequate. See McKenna,
However, in Moran v. McDaniel,
McKenna involved defense counsel’s failure to object to a constitutionally vague jury instruction on depravity as an aggravating circumstance. We held the1 Nevada courts had not consistently treated the failure to object to constitutional error in an instruction as a procedural bar to review of a constitutional claim in a death penalty ease.
Moran,
Finally, in Bargas v. Burns,
All three of these cases are good law— Moran and Bargas did not (and could not
3. Grounds 1 and 12
The district court denied relief on grounds 1 and 12 on the merits. In ground 1, petitioner argues that the state trial court improperly quantified reasonable doubt in explaining the standard to the jury during voir dire, thereby violating due process. In ground 12, petitioner argues that his trial counsel’s failure to object to the introduction, at the sentencing phase, of evidence of petitioner’s kidnapping of his fiancee constituted ineffective assistance of counsel under Strickland v. Washington,
We find that jurists of reason would find the district court’s assessment of these claims debatable, so we grant COAs as to both.
B. Merits
1. Grounds 6, 9, and 26-28
For the reasons set forth in Part III.A.1, supra, we reverse the district court’s dismissal of grounds 6, 9, and 26-28 as abuses of the writ, and we remand those grounds to the district court for a determination either on other procedural grounds or on the merits.
2. Grounds 14-25
As discussed in Part III.A.2, supra, there is tension in our case law on the consistency of Nevada’s application of its procedural bar rules. Nonetheless, upon consideration of the pertinent cases and their application here, we cоnclude that McKenna is controlling and that Moran and Bargas are distinguishable. Accordingly, we hold that the district court erred in ruling that grounds 14-25 were proee-durally barred.
Moran dealt only with two timeliness bars, Nev.Rev.Stat. §§ 34.726, 34.800, which are not at issue here. In addition, the trigger date in Moran was 1987, the year in which Moran’s conviction was affirmed on direct appeal. See
Bargas is distinguishable because it was not a capital case, and the Nevada courts are less strict in applying procedural bars to constitutional claims in capital cases than in non-capital cases. See Jones v. State,
McKenna is not distinguishable on any of these grounds: It involved procedural default through failure to raise a claim in a prior proceeding (whiсh is the procedural bar at issue here), 1985 was the trigger date, and it was a capital case. See McKenna,
Because we find McKenna to be controlling, we reverse the district court’s dismissal of grounds 14-25 as procedurally barred. We accordingly remand those grounds to the district court for a determination either on othеr procedural grounds or on the merits.
3. Ground 1
We affirm the district court’s denial of relief on ground 1. Petitioner argues that the state trial court improperly quantified reasonable doubt in explaining the standard to the jury during voir dire, thereby violating due process. Petitioner contends that the state district court violated his federal due process rights when it stated:
Now in a civil case ... it’s kind of a 6%o proposition. But there is no 60/40, 70/30, 90/10 proposition in proving a case by a certain amount of evidence in a criminal case, because the burden, the standard is beyond a reasonable doubt.... Some people say you have got to be convinced, and then others use, sports minded, use a kind of athletic football field, getting to the 97 yard line. There are all kinds of ways to say it, but it is being strongly convinced of the Defendant’s guilt, оr else he is acquitted.
The federal district court correctly relied on Guam v. Ignacio,
Similarly, even if the judge improperly advised the jury by quantifying the level of doubt in petitioner’s case, the judge, during voir dire and in his closing instructions to the jury, gave a proper reasonable doubt instruction. As in Ignacio, “[because the trial judge used the correct instruction at the end of trial and because
Petitioner’s attempts to distinguish Ignacio are unconvincing. Petitioner argues that the state trial judge did not merely give an incomplete instruction but an incorrect explanation which “could not be corrected merely by giving the jury an instruction with additional language.” Petitioner further contends that this court’s endorsement of the proper instruction in Ramirez,
The district court was therefore correct to deny relief on ground 1.
4. Ground 12
We also affirm the district court’s denial of relief on ground 12. Petitioner argues that, at the sentencing phase, the jury improperly considered, as an aggravating factor, evidence of petitioner’s kidnapping of his fiancee as a prior “conviction” when, at that time, petitioner had not yet been “convicted” of kidnapping. Petitioner contends that the failure of trial counsel to object to evidence of the kidnapping constituted ineffective assistance of counsel under the Strickland standard.
Under Nevada Law, a jury weighs aggravating factors against mitigating factors to detennine whether a death sentence is appropriate; if the aggravating factors outweigh the mitigating factors, the jury may, in a first-degree murder conviction, impose a death sentence. See Nev. Rev.Stat. §§ 175.554(2),
Petitioner is incorrect in his assertion that the kidnapping charge in the state of Washington was not a “conviction” under Nevada law. See Jones v. State,
The Nevada Supreme Court, however, has implicitly considered pronouncements of guilt with impositions of deferred sentences to be judgments of conviction even before Nev.Rev.Stat. § 200.033(4) was amended. In Hanks v. State,
In the instant case, there is no contention that petitioner had any appeals pending in Washington at the time of the penalty phase of the Nevada murder; thus, insofar as the Washington “conviction” was not “final,” it was only to the extent that a final sentence had not yet been imposed. Cf. United States v. Meraz,
Petitioner’s reliance on Nev.Rev.Stat. § 176.105, Fairman v. State,
As the state notes, a “certified copy of the judgment of the conviction” is not required to prove a conviction at a penalty phase under Nevada law.
In sum, because the kidnapping did amount to a prior conviction under Nevada law, there was no Sixth Amendment error. The district court was therefore correct to deny relief on ground 12.
IV. CONCLUSION
For the reasоns set forth above, we GRANT the issuance of COAs on all of the grounds for which a COA was requested (1, 6, 9, 12, 14-28), AFFIRM the denial of relief on grounds 1 and 12, REVERSE the dismissal of grounds 6, 9, and 26-28 under Slack and grounds 14-25 under McKenna, and REMAND grounds 6, 9, and 14-28 to the district court for proceedings consistent with this opinion.
Notes
. Petitioner presents no argument on appeal in support of Claims 2-5, 7, 8, 10, 11, and 13; thus, we deem these grounds to be abandoned.
. Slack was decided on April 26, 2000, two months after oral argument in this case.
. Both theories supported a first-degree murder conviction. See Standen v. State,
. Petitioner, subsequent to the decision in Slack, also filed a motion in this court for a COA. Whether we treat petitioner's notice of appeal as an application for a COA or proceed under petitioner's motion does not affect the result we reach.
. For constitutional claims rejected on the merits by the district court, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims is debatable or wrong.” Slack,
. Slack also, reminds us of the admonition "not [to] pass upon a constitutional question ... if there is also presented some other ground upon which the case may be disposed of....”
. It appears that the district court confused grounds 6 and 9 in its order.
. In Slack, the Supreme Court noted that "it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims."
. See Branch v. Tunnell,
. We express no opinion on whether "the State has provided an opportunity for full and fair litigation of [the] Fourth Amendment claim,” Stone v. Powell,
. Nev.Rev.Stal. § 175.554(2) (1986) states:
The jury or the panel of judges shall determine:
(a) Whether an aggravating circumstance or circumstances are found to exist;
(b) Whether a mitigating circumstance or circumstances are found to exist; and
(c) Based upon these findings, whether the defendant should be sentenced to life imprisonment or death.
The jury or the panel of judges may impose a sentence of death only if it finds аt least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.
. Nev.Rev.Stal. § 200.030(4) (1986) states:
Every person convicted of murder of the first degree shall be punished:
(a) By death, only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without possibility of parole. If the penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a minimum of 10 years has been served.
.Nev.Rev.Stat. § 200.033 (1986) states, in relevant part:
The only circumstances by which murder of the first degree may be aggravated are:
1. The murder was committed by a person under sentence of imprisonment.
2. The murder was committed by a person who was previously convicted of another murder or of a felony involving the use or threat of violence to the person of another.
4. The murder was committed while the person was engaged, alone or with others, in the commission of or an attempt to commit or flight after committing or attempting to commit, any robbery, sexual assault, arson in the first degree, burglary or kidnaping in the first degree, and the person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.
5. The murder was committed to avoid or prevent a lawful arrest or to effect an escape from custody.
6. The murder was committed by a person, for himself or another, for the purpose of receiving money or any other thing of monetary value.
. Petitionеr received his probation pursuant to Wash. Rev.Code § 9.95.200 (1981), which states:
After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. The court may, in its discretion, prior to the hearing on the granting of probation, refer the matter to the secretary of corrections or such officers as the secretary may designate for investigation and report to the court at a specified time, upon the circumstances surrounding the crime and concerning the defendant, his prior record, and his family surroundings and environment.
. Nev.Rev.Stat. § 200.033(2) has since been amended so that for purposes of an aggravating factor, a conviction occurs once a pronouncement of guilt is made. See Nev.Rev. Slat. § 200.033(2) (1999). Although this might be read to favor petitioner’s argument, it is not determinative, because the amendment allows the "conviction” of the prior crime to be used well before any sentence— deferred or not — is imposed.
. Nev.Rev.Stat. § 176.105(1) (1986) states:
1. If a defendant is found guilty and is:
(b) Sentenced as provided by law, the judgment of conviction must set forth the plea, the verdict or finding, the adjudication and sentence, and the exact amount of credit granted for time spent in confinement before conviction, if any.
. In particular, the state cites the Nevada Supreme Court’s opinion regarding post-conviction relief in this very case, where the court found that failure to request a certified copy of the kidnapping convictiоn was not "prejudicial” given the "sufficient proof of the prior offense,” including admissions by the petitioner.
. McKenna v. McDaniel,
Concurrence Opinion
concurring:
I write separately to note that my concurrence on the merits of the McKenna issues