Sechrest v. Ignacio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICKY DAVID SECHREST,  No. 04-99004

Petitioner-Appellant,

v.  D.C. No.

CV-N-92-0536-ECR

JOHN IGNACIO, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, District Judge, Presiding

Argued and Submitted

February 15, 2007—Pasadena, California

Filed December 5, 2008

Before: Harry Pregerson, William A. Fletcher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

15975

SECHREST v. IGNACIO 13979

COUNSEL

Franny A. Forsman, Tiffany R. Murphy, and Michael Pes-

cetta, Federal Public Defender’s Office, Las Vegas, Nevada,

for the petitioner-appellant.

George J. Chanos and David K. Neidert, Office of the Nevada

Attorney General, Reno, Nevada, for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge:

In this pre-AEDPA capital case, Ricky David Sechrest

appeals the denial of his third amended petition for a writ of

habeas corpus under 28 U.S.C. § 2254.1 We affirm in part,

reverse in part, and remand for further proceedings.

1

AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996,

altered the role of the federal habeas court in reviewing state prisoner

applications brought under 28 U.S.C. § 2254. See Bell v. Cone, 535 U.S.

685, 693 (2002). Under AEDPA, a federal court may reject a state court’s

13980 SECHREST v. IGNACIO

JURISDICTION

We have jurisdiction over the district court’s denial of

Sechrest’s third amended federal habeas petition pursuant to

28 U.S.C. §§ 1291 and 2253(c).

FACTUAL BACKGROUND

On May 14, 1983, twenty-two-year-old Ricky Sechrest kid-

napped and murdered ten-year-old Maggie Weaver and nine-

year-old Carly Villa. A few weeks later, two men found the

girls’ bodies in Logomarsino Canyon, a remote area east of

Reno, Nevada.

On June 14, 1983, Sechrest was arrested by the Sparks,

Nevada police on an unrelated grand larceny charge. Detec-

tive Wright of the Sparks police informed Sechrest of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966), and

asked Sechrest if he wanted to talk about the grand larceny

charge. Sechrest replied that he wished to speak with his

attorney. At that point, questioning ceased.

The Sparks police then took Sechrest to the station for

booking. While Sechrest was waiting to be booked, he turned

to Detective Wright and another officer, Sergeant Gonyo, and

said, “I like you two guys, I don’t want an attorney, I will talk

with you.” The officers finished booking Sechrest and gave

him a standard form for waiving his Miranda rights. Sechrest

read and signed this form in the presence of the officers.

judgment only if it was “contrary to” or “involved an unreasonable appli-

cation of” clearly established federal law as determined by the United

States Supreme Court. 28 U.S.C. § 2254(d)(1). However, AEDPA does

not apply to the merits of petitions filed before April 24, 1996, the effec-

tive date of the Act. See Caswell v. Calderon, 363 F.3d 832, 836 n.3 (9th

Cir. 2004). Because Sechrest filed his first federal habeas petition before

AEDPA’s 1996 enactment, AEDPA does not affect our analysis in this

case.

SECHREST v. IGNACIO 13981

The Sparks officers proceeded to question Sechrest about

the grand larceny charge. During questioning, Sechrest stated

that the Reno police were investigating him as a possible sus-

pect in a homicide. The Sparks officers, however, did not

question Sechrest about the homicide.

When the Sparks officers finished questioning Sechrest,

Sergeant Gonyo left the room. He returned to inform Sechrest

that Officer Bogison of the Reno Police Department was out-

side. Sergeant Gonyo asked Sechrest if he would like to talk

to Officer Bogison, with whom Sechrest had spoken over the

past few days. Sechrest replied, “Yes, I like Mr. Bogison, he

is the only one on my side, and [he] understands me.” Officer

Bogison then approached Sechrest and said, “I understand

you want to talk to me, is that right?” Sechrest replied, “Yes.”

Sechrest also stated that he had spoken with his attorney and

had been advised to “keep his mouth shut.” Officer Bogison

responded, “Well, there is nothing we can do to alter that . . .

do you want to talk to me?” Sechrest replied, “I will tell you

what, I will make a deal—no, I won’t make a deal. You ask

some questions, and if I want to answer them, I will answer

them, and if not, I won’t.” Bogison then asked again, “Does

this mean you want to talk to us?” Sechrest answered, “Yes.”

Sechrest entered an interrogation room with Officer Bogi-

son and another Reno officer, Detective Eubanks. Before the

interrogation began, Sechrest requested permission to call his

grandmother and his attorney. Sechrest first called his grand-

mother. When that call ended, Officer Bogison asked Sechrest

if he wished to call his attorney. Sechrest said, “No, I want to

get this off my chest.” Shortly thereafter, Sechrest confessed

to the two murders.

Before trial, Sechrest moved under Miranda to suppress the

confession he made to the Reno police officers. Following an

evidentiary hearing, the trial judge ruled that Sechrest’s

Miranda rights had not been violated and that Sechrest’s con-

fession could be admitted into evidence.

13982 SECHREST v. IGNACIO

Sechrest’s seven-day jury trial began on September 12,

1983, in Nevada’s Second Judicial District Court. During his

voir dire of the jury, the prosecutor made two statements sug-

gesting that Sechrest would not actually serve a full term of

life imprisonment if he were sentenced to life in prison with-

out the possibility of parole:

Statement #1: The judge is going to give you an

instruction at the penalty phase, if we get there, that

he will impose the penalty that you say, but if you

say life in prison without parole, that doesn’t mean

that the pardons board can’t let him out. Now, would

you consider that when you arrive at your verdict?

Statement #2: Okay. Now, [defense counsel] has

talked a lot about the possible penalties if we get

there being life with possibility of parole, life with-

out possibility of parole and death. And His Honor

will, I imagine, because many times I have been in

front of His Honor, will give you a charge, a jury

instruction saying if you impose life without parole

that really doesn’t mean life forever. If he gives you

that charge, will you take that into consideration in

deciding what the verdict ought to be?

Defense counsel did not object to these statements.

On September 19, 1983, the jury convicted Sechrest of two

counts of first degree murder and two counts of first degree

kidnaping.

The penalty phrase of Sechrest’s trial began on September

26, 1983. The prosecution’s primary penalty phase witness

was Dr. Lynn M. Gerow. Dr. Gerow’s involvement in the

case began several months before trial when, at defense coun-

sel’s request, the trial judge appointed Dr. Gerow to conduct

a psychiatric evaluation of Sechrest. Using Dr. Gerow’s eval-

uation, defense counsel sought to determine whether Sechrest

SECHREST v. IGNACIO 13983

was fit to stand trial, and to investigate the possibility of an

insanity defense.

Dr. Gerow interviewed and evaluated Sechrest. He then

submitted a report addressed to defense counsel marked

“Confidential.” The report contained information about

Sechrest’s criminal history and past drug use. In the report,

Dr. Gerow stated that Sechrest had a “polymorphous perver-

sion.” After reviewing the report and speaking with Dr.

Gerow, defense counsel decided not to call Dr. Gerow as a

witness at the penalty phase and not to pursue an insanity

defense.

The prosecutor then asked defense counsel to permit the

use of Dr. Gerow’s report and to permit the prosecutor to call

Dr. Gerow as a prosecution witness during the penalty phase.

Defense counsel, who last communicated with Dr. Gerow

about two months before trial, stipulated to the prosecution’s

request and did not object when Dr. Gerow took the stand. Dr.

Gerow testified that he had evaluated Sechrest at defense

counsel’s request. He further testified that Sechrest was an

“incurable sociopath” with an extensive criminal record and

a history of drug use.

In front of the jury at the penalty phase, the prosecutor

made sure the record showed that defense counsel had acqui-

esced in the prosecution’s request to call Dr. Gerow as a pros-

ecution witness. The prosecutor frequently referred to Dr.

Gerow’s testimony when examining penalty phase witnesses

and when making his closing argument. Moreover, during

closing argument, the prosecutor made two additional state-

ments to the jury emphasizing that the Board of Pardon Com-

missioners could change Sechrest’s sentence and that

prisoners never serve their full life sentences, even when the

life sentence states that it is imposed without the possibility

of parole:

Statement #3: Now, the judge has told you that if

you return a verdict, whatever verdict you return, he

13984 SECHREST v. IGNACIO

will impose. He also told you, and it is very impor-

tant under the laws of this state, the State of Nevada,

any sentence imposed by the jury may be refused 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, the

Court has no way of knowing. Indeed, you don’t

either. The State Board of Pardon commissioners,

however, would have the power to modify any sen-

tence at a later date. And what that means is, let’s

say you fall — I am going to talk about his defense.

It was a fraud. And let’s say you fall for that fraud

and you say well, gee, I just can’t bring myself to do

what I should do, and I am going to impose life with-

out parole. You don’t die in prison of old age. People

get out. Now, are you prepared to risk the life of

some other person or child by giving him the oppor-

tunity to get out? That will be your risk. That will be

your burden.

Statement #4: Never getting out. As the judge has

instructed you, the pardons board has the ultimate

authority to review any sentence, to pardon anybody.

If you return a verdict of life without possibility of

parole, I represent to you as a lawyer, as an attorney

for the people of this county, that the pardons board

has the authority to commute that tomorrow if they

want to. They won’t, of course, but they have the

authority to. So don’t buy that he is going to go to

jail forever. It just doesn’t happen.

Defense counsel did not object to these statements.

After closing argument at the penalty phase, the trial judge

issued penalty phase jury instructions, which included the fol-

lowing:

SECHREST v. IGNACIO 13985

If the penalty is fixed at life imprisonment with the

possibility of parole, eligibility for parole begins

when a minimum of ten years has been served.

If the penalty is fixed at life imprisonment without

the possibility of parole, the defendant shall not be

eligible for 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 Par-

don 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.

On September 27, 1983, the jury returned its verdict,

imposing the death penalty for each of the two murders. The

jury found four aggravating factors for each murder: (1) that

the murder involved torture, depravity of the mind, or mutila-

tion of the victim; (2) that the murder was committed to pre-

vent or avoid a lawful arrest or to effect an escape from

custody; (3) that the murder was committed during the com-

mission or the attempted commission of a kidnaping; and (4)

that the murder was committed during the commission or

attempted commission of a sexual assault.

The trial judge, in accordance with the jury’s verdict, sen-

tenced Sechrest to the penalty of death for each of the two

murders. The trial judge also sentenced Sechrest to two terms

of life in prison without the possibility of parole for each of

the two kidnaping convictions.

PROCEDURAL BACKGROUND

Sechrest appealed his convictions and sentences on several

grounds to the Nevada Supreme Court. On August 27, 1985,

13986 SECHREST v. IGNACIO

the Nevada Supreme Court affirmed both his convictions and

his sentences. Sechrest v. State, 705 P.2d 626 (Nev. 1985).

On November 13, 1985, Sechrest filed a petition for post-

conviction relief in the Nevada state district court. Sechrest

argued that he was denied effective assistance of counsel dur-

ing the penalty phase of his trial because his attorney failed

to prevent Dr. Gerow from testifying for the prosecution.

After conducting an evidentiary hearing on Sechrest’s petition

on November 8, 1990, the Nevada state district court con-

cluded that counsel’s performance had been constitutionally

deficient. Nevertheless, the state district court held that Se-

chrest had failed to demonstrate prejudice and denied the peti-

tion. Sechrest appealed the state district court’s denial of post-

conviction relief to the Nevada Supreme Court, which

affirmed the state district court’s denial on February 20, 1992.

Sechrest v. State, 826 P.2d 564 (Nev. 1992).

On August 13, 1992, Sechrest filed a pro se federal petition

for a writ of habeas corpus. The district court appointed coun-

sel for Sechrest, and Sechrest filed an amended habeas peti-

tion on October 31, 1994. On September 25, 1995, the district

court dismissed the amended petition with leave to amend.

On October 27, 1995, Sechrest filed a second amended fed-

eral habeas petition raising thirty-five claims of various con-

stitutional violations that occurred during both the guilt and

penalty phases of his trial.2 The district court held that four of

Sechrest’s claims had been properly exhausted in state court,

but thirty-one had not. Accordingly, the district court ruled

that Sechrest’s second amended petition was a “mixed peti-

tion,” containing both exhausted and unexhausted claims.

Because federal law prohibits the consideration of mixed peti-

tions, Rose v. Lundy, 455 U.S. 509, 522 (1982), the district

2

Several of Sechrest’s ineffective assistance counsel claims contained

subparts. The district court counted each of these subparts as individual

habeas claims.

SECHREST v. IGNACIO 13987

court dismissed the second amended petition without preju-

dice to allow Sechrest to pursue his unexhausted claims in

state court.

Sechrest appealed the district court’s dismissal of his sec-

ond amended petition to this court. While that appeal was

pending, Sechrest filed a second post-conviction petition in

Nevada state court in an attempt to exhaust his unexhausted

claims. On September 4, 1996, the Nevada state district court

dismissed that petition under Nevada Revised Statute

§ 34.810 (“NRS 34.810”). NRS 34.810 provides that a peti-

tion shall be dismissed if the court determines that the

grounds for the petition could have been raised in an earlier

proceeding, unless the court finds both cause for the failure to

present the grounds earlier and actual prejudice to the peti-

tioner.

On November 20, 1997, the Nevada Supreme Court

affirmed the state district court, holding that Sechrest’s habeas

claims that had not been raised in the earlier state proceedings

were procedurally defaulted under NRS 34.810. Sechrest v.

State, No. 29170 (Nev. Nov. 20, 1997). The Nevada Supreme

Court ruled that Sechrest had failed to show good cause for

his failure to raise the claims earlier and had failed to demon-

strate that his unexhausted claims had any merit. The Nevada

Supreme Court concluded that only five of Sechrest’s claims

had been exhausted during the prior state proceedings: (1)

denial of a fair trial because of prosecutorial misconduct

regarding comments on executive clemency, (2) violation of

Sixth Amendment right to effective assistance of counsel

because of failure of trial court to appoint Sechrest a second

attorney, (3) violation of Fifth Amendment right against self-

incrimination by admission into evidence of petitioner’s state-

ments to police, (4) violation of Fifth Amendment right

against self-incrimination because of admission into evidence

of Dr. Gerow’s testimony, and (5) violation of Sixth Amend-

ment right to effective assistance of counsel because of trial

13988 SECHREST v. IGNACIO

counsel’s failure to prevent or prepare for Dr. Gerow’s testi-

mony.

Relying on the Nevada Supreme Court’s decision, we dis-

missed Sechrest’s appeal of his second amended federal

habeas petition. Sechrest v. Del Papa, 161 F.3d 14 (Table),

1998 WL 551984 at *2 (9th Cir. Aug. 27, 1998) (unpublished

memorandum disposition). Citing Wainwright v. Sykes, 433

U.S. 72, 87 (1977), we held that the claims deemed procedur-

ally defaulted by the Nevada Supreme Court under NRS

34.810 were outside federal habeas jurisdiction. Id. at *1. We

remanded Sechrest’s second federal petition to the district

court, instructing the district court to “vacate its order dis-

missing the petition, permit [Sechrest] to delete the claims

which are procedurally barred, and then proceed to determine

the merits of the five [ ]exhausted3 claims.” Id. at *2. We

noted that if Sechrest “[did] not delete the procedurally barred

claims, then the district court should deny the petition.” Id.

On remand, the district court ordered supplemental briefing

on the procedural default issue. The State objected, arguing

that this court had already ruled on that issue. Initially, the

district court disagreed with the State and reiterated its request

that the parties submit briefing on the procedural default

issue. Ultimately, however, the district court agreed with the

State and issued an order indicating that it would accept an

amended petition from Sechrest “in accordance with the order

of the Ninth Circuit Court of Appeals and the Nevada

Supreme Court.”

Complying with the district court’s order, Sechrest filed a

third amended federal habeas petition on May 20, 1999, omit-

ting the claims deemed procedurally barred and raising his

3

The original disposition inadvertently stated that the district court

should “proceed to determine the merits of the five unexhausted claims.”

On September 16, 1998, we filed an order amending our disposition to

correct that misstatement. We cite the corrected language above.

SECHREST v. IGNACIO 13989

five remaining claims. On April 19, 2004, the district court

issued an order denying on their merits all five claims con-

tained in the third amended habeas petition.

Sechrest filed a motion for reconsideration of the district

court’s order. In that motion, Sechrest asked the district court

to reconsider its ruling on his third amended petition, and to

re-evaluate those claims that had been deemed procedurally

defaulted. On June 3, 2004, the district court denied Se-

chrest’s motion for reconsideration.

Sechrest then filed an application for a certificate of

appealability with the district court. On December 3, 2004,

the district court granted the certificate of appealability on

four of the five claims raised in Sechrest’s third amended fed-

eral petition, and on the correctness of the procedural default

ruling. Those issues are before us now.

STANDARD OF REVIEW

Because Sechrest filed his original federal habeas petition

before April 24, 1996, AEDPA’s standard of review does not

apply. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir.

2005) (en banc). Accordingly, we “simply resolve the legal

issue[s] on the merits, under the ordinary rules.” Id. at 628

(internal quotation and citation omitted). We review the dis-

trict court’s denial of Sechrest’s habeas petition de novo and

its factual findings for clear error. Id. at 628.

DISCUSSION

I.

We begin by deciding whether the claims that the Nevada

Supreme Court dismissed under NRS 34.810 were properly

barred from federal habeas review. We hold that these claims

should not have been barred, and remand so that the district

court may consider them on their merits.

13990 SECHREST v. IGNACIO

A.

[1] Under the principles governing procedural default, a

federal district court cannot review a habeas petitioner’s

claimed denial of a constitutional right if the petitioner failed

to present the claim in state court because of a procedural

default in that court. Valerio v. Crawford, 306 F.3d 742, 773

(9th Cir. 2002) (en banc). “A default under an independent

and adequate state procedural rule operates as a bar in federal

court unless the petitioner can show cause for and prejudice

from the default.” Id. (citing Wainwright, 433 U.S. at 72;

Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994)). “[T]o

constitute adequate and independent [state] grounds sufficient

to support a finding of procedural default, a state rule must be

clear, consistently applied, and well-established at the time of

the petitioner’s purported default.” Wells, 28 F.3d at 1010.

Our 1998 memorandum disposition in this matter held that

the claims deemed procedurally defaulted under NRS 34.810

were barred from federal habeas review. 1998 WL 551984 at

*2. We recognize that we are generally precluded under the

“law of the case” doctrine from reconsidering an issue that

has already been decided by the same court in the identical

case. United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.

1998). However, we have discretion to depart from a prior

decision if “(1) the decision is clearly erroneous and its

enforcement would work a manifest injustice, (2) intervening

controlling authority makes reconsideration appropriate, or

(3) substantially different evidence was adduced at a subse-

quent trial.” Minidoka Irrigation Dist. v. U.S. Dep’t of Inte-

rior, 406 F.3d 567, 573 (9th Cir. 2005) (quoting Old Person

v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)). As we dis-

cuss below, this court’s 2002 en banc decision in Valerio was

intervening controlling authority that makes reconsideration

of our 1998 memorandum disposition appropriate here.

In Valerio, we examined the application of NRS 34.810

under circumstances almost identical to those present here.

SECHREST v. IGNACIO 13991

306 F.3d 742. After filing an unsuccessful petition for post-

conviction relief in Nevada state court in 1990, the petitioner

in Valerio filed a federal habeas petition in 1992, which the

federal district court dismissed as mixed under Rose. Id. at

748-49. The petitioner then filed a second state petition for

post-conviction relief in Nevada state district court in an

attempt to exhaust his unexhausted claims. Id. at 749. The

state district court dismissed the entire petition as procedur-

ally barred under NRS 34.810, and the Nevada Supreme

Court affirmed. Id.

The petitioner then returned to federal district court and

filed a second federal habeas petition. Id. In that petition, he

asserted the same claims for relief he had presented to the

Nevada state courts in his second petition for post-conviction

relief. Id. In 1998, the federal district court dismissed most of

the petitioner’s claims as barred from federal habeas review

under NRS 34.810, and the petitioner appealed. Id.

On en banc review, we agreed with petitioner that his

claims should not have been barred as procedurally defaulted

under NRS 34.810 because the Nevada courts had not applied

NRS 34.810 “with sufficient clarity and regularity.” Id. at

773. We noted that NRS 34.810 authorizes the Nevada courts

to dismiss claims that could have been raised on direct appeal

or in a prior petition for post-conviction relief unless the court

finds both cause for the failure to present the grounds and

actual prejudice to the petitioner. Id. at 771. Had this rule

been regularly adhered to, the Nevada courts should have dis-

missed all claims for post-conviction relief that could have

been brought in an earlier petition. Our in-depth review of

Nevada case law, however, revealed that, when the petitioner

in Valerio filed his first petition for post-conviction relief in

1990, the Nevada Supreme Court had a policy in capital cases

of “exercising discretionary sua sponte power to overlook

failures to present constitutional claims in earlier proceed-

ings.” Id. at 776. Because the Nevada Supreme Court exer-

cised a “general discretionary power” to address defaulted

13992 SECHREST v. IGNACIO

constitutional claims in capital cases, the Nevada Supreme

Court did not “adhere regularly” to the requirements of NRS

34.810. Id. at 778.

[2] We therefore concluded that NRS 34.810 was an inade-

quate state procedural bar to federal habeas review. Id. We

explicitly noted that this conclusion comported with our deci-

sions in Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001),

and McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995),

which held that the Nevada courts had inconsistently applied

NRS 34.810 as early as 1985, in both direct appeal and habeas

proceedings. Id.

[3] Valerio controls the outcome of the procedural default

issue in this case. Here, Sechrest’s default occurred on

November 13, 1985, when he filed his first petition for post-

conviction relief in the Nevada state district court. See id. at

776 (explaining that default occurs at the time the first peti-

tion for post-conviction relief is filed). Valerio demonstrates

that, in 1985, there was no clear, consistently applied, and

well-established rule that barred Sechrest from asserting in a

later petition claims that he failed to assert in his first petition.

Id. at 778. Therefore, NRS 34.810 is inadequate to bar federal

habeas review of the claims deemed procedurally defaulted by

the district court.

[4] Because we conclude that our earlier procedural default

ruling, 1998 WL 551984 at *2, should not stand, we must

now decide whether “jurists of reason would find it debat-

able” whether the defaulted claims stated valid “denial[s] of

a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 478

(2000). To do so, we simply take a “quick look” at the face

of the petition. Petrocelli, 248 F.3d at 885 (citations omitted).

Here, our “quick look” reveals that all the defaulted claims

alleged the denial of a constitutional right. In his second

amended petition, Sechrest raised several Sixth Amendment

ineffective assistance of counsel claims for errors that

SECHREST v. IGNACIO 13993

occurred during the guilt and penalty phases of his trial. He

also argued that death by lethal injection violates the Eighth

Amendment’s prohibition against cruel and unusual punish-

ment. These claims clearly state potential constitutional viola-

tions.

Furthermore, Sechrest challenged the constitutionality of

the four aggravating factors that the jury considered when

sentencing him to death. We have already held in Valerio that

one of these aggravating factors—the “depravity of mind”

factor—is unconstitutionally vague. 306 F.3d at 750-51; see

also Deutscher v. Whitley, 884 F.2d 1152, 1161 (9th Cir.

1989), vacated on other grounds sum nom., Angelone v.

Deutscher, 500 U.S. 901 (1991). Moreover, the Nevada state

district court has since held that the two “felony-murder”

aggravating factors applied in Sechrest’s case—that the mur-

der was committed during the commission or the attempted

commission of a kidnaping, and that the murder was commit-

ted during the commission or attempted commission of a sex-

ual assault—“must be stricken as invalid” under McConnell

v. State, 102 P.3d 606 (Nev. 2004). Sechrest v. McDaniel,

Second Judicial Dist. Ct., Case No. C83-1014 (Apr. 5, 2007)

(unpublished order). Therefore, at least one (and possibly

three) of Sechrest’s dismissed claims is not only a constitu-

tional claim; it is meritorious.

[5] Sechrest has shown that the dismissed claims alleged

potential denials of his constitutional rights. Accordingly, we

conclude that those claims should not have been barred from

federal habeas review.

B.

The State does not dispute the application of Valerio to

Sechrest’s case. Instead, the State contends that Sechrest

waived the procedural default issue when he filed a third

amended federal habeas petition omitting the supposedly

defaulted claims.

13994 SECHREST v. IGNACIO

[6] Generally, amendment of a complaint or petition consti-

tutes waiver of any omitted arguments or claims from previ-

ous versions of the complaint or petition. See Forsyth v.

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). The filing

of a new petition cancels out and waives any claims from the

old petition. The cases establishing these rules, however, all

deal with voluntary waiver. See, e.g., London v. Coopers &

Lybrand, 644 F.2d 811, 814 (9th Cir. 1981); Loux v. Rhay,

375 F.2d 55, 57 (9th Cir. 1967). This is not such a case. In our

1998 memorandum disposition, we held that Sechrest’s

claims were procedurally barred from federal habeas review.

1998 WL 551984 at *2. We specifically stated that if Sechrest

failed to delete these claims, his entire petition should be

denied. Id. Complying with our mandate, the district court

required Sechrest to file a third amended federal habeas peti-

tion “in accordance with the order of the Ninth Circuit Court

of Appeals and the Nevada Supreme Court.” Thus, Sechrest

had to delete the defaulted claims, on pain of having his entire

habeas petition denied. Under such circumstances, we cannot

conclude that he voluntarily waived his claims.4 See, e.g., Wil-

son v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.

1978), vacated on other grounds, 444 U.S. 959 (1979) (“It . . .

is not logical to deny a party the right to appeal simply

because he decides to abide by the court’s order and amend

his pleading rather than allowing judgment to be entered

against him . . . .”).

[7] We also find that the doctrine of judicial estoppel pre-

vents the State from prevailing in its waiver argument. See

Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782

(9th Cir. 2001) (“Judicial estoppel is an equitable doctrine that

precludes a party from gaining an advantage by asserting one

position, and then later seeking an advantage by taking a

clearly inconsistent position.”). In district court, the State

4

We note that our ruling requiring the deletion of procedurally defaulted

claims was incorrect. Unexhausted claims must be deleted, not procedur-

ally defaulted claims. See Valerio, 306 F.3d at 770.

SECHREST v. IGNACIO 13995

successfully argued that Sechrest was bound by the terms of

our prior decision to delete the defaulted claims. The State

cannot now argue that Sechrest was at liberty to include those

same claims in his third amended federal habeas petition.

Finally, we reject the State’s argument that Sechrest did not

raise the procedural default issue in a timely manner because

he first addressed it in a motion for reconsideration. Sechrest

had already raised the procedural default issue in this court.

The State was well aware of the issue and suffered no preju-

dice when Sechrest raised it in his motion for reconsideration

[8] We conclude that the habeas claims the Nevada

Supreme Court dismissed under NRS 34.810 should not have

been barred from federal review. We reverse and remand to

the district court for consideration of those claims on the merits.5

II.

We next address Sechrest’s claims challenging the validity

of his conviction. Sechrest argues that the Reno police offi-

cers violated his Miranda right to remain silent and his

Miranda right to counsel when they questioned him at the

Sparks police station on July 14, 1983.6 Sechrest contends that

his confession was therefore the product of compulsion and

should not have been admitted into evidence at trial.

Miranda claims present mixed questions of law and fact

which we review de novo. See Thompson v. Keohane, 516

U.S. 99, 106-16 (1995). We hold that Sechrest’s Miranda

rights were not violated and affirm the district court on this

issue.

5

As we later conclude, for separate reasons, that there were due process

violations during the penalty phase of the trial, the claims that go to due

process violations in sentencing need not be revisited. We remand for con-

sideration of the other claims dismissed under NRS 34.810.

6

Sechrest concedes that he waived his Miranda rights when he chose to

speak with the Sparks officers about the grand larceny charge.

13996 SECHREST v. IGNACIO

A.

Sechrest first argues that the Reno officers violated his

right to remain silent. A suspect in police custody must be

informed of his right to remain silent before any interrogation

begins. See Miranda, 384 U.S. at 444. If the suspect indicates

in any manner, at any time prior to or during questioning, that

he wishes to invoke his right to remain silent, the interroga-

tion must cease. Id. at 474. Any statement taken after the sus-

pect’s invocation of this right constitutes the product of

compulsion and cannot be used as proof of guilt. Id.

However, “when a suspect makes an ambiguous or equivo-

cal statement it will often be good police practice for the

interviewing officers to clarify whether or not he actually

wants [to invoke the privilege].” Davis v. United States, 512

U.S. 452, 461 (1994). Clarifying questions “minimize the

chance of a confession being suppressed due to subsequent

judicial second-guessing as to the meaning of the suspect’s

statement.” Id. “If the suspect’s statement is not an [ ] unam-

biguous or unequivocal request for counsel, the officers have

no obligation to stop questioning.” Id. at 461-62.

[9] When the Sparks officers finished questioning Sechrest,

Sergeant Gonyo asked Sechrest if he would like to talk to

Reno Police Officer Bogison, and Sechrest answered that he

would. When Officer Bogison first approached Sechrest,

however, Sechrest told Officer Bogison that his lawyer had

advised him to “keep his mouth shut.” This statement was not

a clear invocation of the right to remain silent. Although

Sechrest was indicating what his lawyer had advised him to

do, it was not clear that Sechrest was explaining his own

intentions. An officer in Bogison’s position would not neces-

sarily have understood Sechrest’s statement to be an invoca-

tion of his right to remain silent.

After Sechrest announced that his lawyer had advised him

to “keep his mouth shut,” Officer Bogison asked a second

SECHREST v. IGNACIO 13997

time if Sechrest wanted to talk to him. Because Sechrest’s

statement about his attorney’s advice was sufficiently vague

to merit clarification, this question was permissible.

Sechrest responded to Officer Bogison’s question with an

ambiguous, convoluted statement. Sechrest said, “I will tell

you what, I will make a deal—no, I won’t make a deal. You

ask some questions, and if I want to answer them, I will

answer them, and if not, I won’t.” Once again, Sechrest’s

intentions were unclear. Officer Bogison asked again whether

Sechrest wished to speak with him, and Sechrest said “yes.”

This last statement constituted a clear indication that Sechrest

did not wish to invoke his right to remain silent.

[10] In sum, each of Officer Bogison’s questions merely

sought to clarify whether Sechrest was invoking his right to

remain silent, and Sechrest eventually made clear that he did

not wish to invoke that right. We therefore conclude that

Sechrest knowingly and voluntarily waived this right before

he agreed to speak with the Reno police officers.

B.

Sechrest also argues that the Reno officers violated his

right to counsel under Miranda. “The right to counsel recog-

nized in Miranda is sufficiently important to suspects in crim-

inal investigations . . . that it ‘requir[es] the special protection

of the knowing and intelligent waiver standard.’ ” Davis, 512

U.S. at 458 (quoting Edwards v. Arizona, 451 U.S. 477, 483

(1981)). If a suspect waives his right to counsel after receiv-

ing the Miranda warnings, law enforcement officers are free

to question him. Id. “But if a suspect requests counsel at any

time during the interview, he is not subject to further ques-

tioning until a lawyer has been made available or the suspect

himself reinitiates conversation.” Id. A suspect who invokes

his right to counsel cannot be questioned about any offense

unless an attorney is actually present. Id.

13998 SECHREST v. IGNACIO

Applying these rules, we begin by determining whether

Sechrest actually invoked his right to counsel. Smith v. Illi-

nois, 469 U.S. 91, 95 (1984). This is an objective inquiry.

Davis, 512 U.S. at 458-59. There must, at a minimum, be a

statement from the suspect that can “reasonably be construed

to be an expression of a desire for the assistance of an attor-

ney.” Id. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171,

178 (1991)). Where a suspect makes a reference to an attor-

ney that is ambiguous or equivocal, the officers may continue

with their questioning. The suspect “must articulate 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, 512 U.S. at

459.

[11] When Officer Bogison first began questioning Sechr-

est, Sechrest said that he had spoken with his attorney and had

been advised to “keep his mouth shut.” This mention of an

attorney and reference to advice from an attorney is not an

unambiguous request for counsel. In Davis, the Supreme

Court examined a case where the suspect said, “Maybe I

should talk to a lawyer.” Id. at 455. The Court found that this

reference to an attorney was not a clear invocation of a right

to an attorney. Id. at 462. We have also held that the state-

ments, “I think I would like to talk to a lawyer,” and, “maybe

[I] ought to see an attorney” were not clear and unambiguous

requests for counsel. Clark v. Murphy, 331 F.3d 1062, 1070-

71 (9th Cir. 2003); United States v. Doe, 60 F.3d 544, 546

(9th Cir. 1995). Because Sechrest’s reference to his attorney’s

advice was even less clear than these statements, it was insuf-

ficient to require that the officers stop their questioning.

Sechrest did make a later statement that was a request for

counsel. After Sechrest agreed to speak to Officer Bogison

and Detective Eubanks, Sechrest asked permission to tele-

phone his grandmother and his attorney. Sechrest decided to

call his grandmother first, however. After Sechrest’s conver-

sation with his grandmother, Officer Bogison asked Sechrest

SECHREST v. IGNACIO 13999

if he was going to call his attorney, but Sechrest said no. In

context, Officer Bogison’s question was simply an attempt to

follow up on and implement Sechrest’s earlier request, after

a delay instigated by Sechrest. Under these specific circum-

stances, we find Officer Bogison’s question permissible.

[12] Accordingly, we conclude that Sechrest’s right to

counsel was not violated when the Reno officers questioned

him at the Sparks police station.

III.

We now address Sechrest’s claims challenging the validity

of his death sentences. Sechrest raises three alternative claims

which, if meritorious, will require the State to resentence him.

We consider each claim in turn.

A.

First, Sechrest argues that the prosecutor’s statements

regarding the likelihood of Sechrest’s release from prison by

parole misled the jury and violated his Sixth and Fourteenth

Amendment due process right to a fair trial.

[13] A prosecutor’s misleading and inflammatory argu-

ments may violate a defendant’s due process right to a fair

trial. Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). On

federal habeas review, the narrow issue before us is whether

the prosecutor’s comments violated the defendant’s due pro-

cess right to a fair trial, not whether the prosecutor’s com-

ments constituted misconduct committed while the prosecutor

was under the court’s “exercise of supervisory power.” Id. at

181.

Thus, we must examine the “ ‘entire proceedings’ to deter-

mine whether the prosecutor’s remarks ‘so infected the trial

with unfairness as to make the resulting conviction a denial of

due process.’ ” Hall v. Whitley, 935 F.2d 164, 165 (9th Cir.

14000 SECHREST v. IGNACIO

1991) (per curiam) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). Before granting relief, we must also

determine that any constitutional error was not harmless. Spe-

cifically, we must find that the error “had substantial and inju-

rious effect or influence in determining the jury’s verdict.”7

Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Only

if the record demonstrates that the jury’s decision was sub-

stantially influenced by the error or there is “ ‘grave doubt’

about whether an error affected a jury” will Sechrest be enti-

tled to relief. Hegler v. Borg, 50 F.3d 1472, 1478 (9th Cir.

1995) (quoting O’Neal v. McAninch, 513 U.S. 432, 438

(1995)).

After examining the entire record, we hold that the prosecu-

tor’s repeated misstatements regarding the likelihood of

Sechrest’s release from prison by parole were he to be sen-

tenced to life without the possibility of parole violated Se-

chrest’s due process right to a fair trial, and that the violation

had substantial and injurious effect on the jury’s sentencing

decision, carried out by the trial judge, to impose the death

penalty. Accordingly, Sechrest must be resentenced.

1.

Sechrest argues that the prosecutor’s uncorrected assertions

that the Board of Pardon Commissioners would likely release

Sechrest if he did not receive the death penalty were constitu-

tionally impermissible. We agree.

During Sechrest’s trial, the prosecutor made four state-

ments indicating that the Board of Pardon Commissioners

could—and likely would—release Sechrest if the jury

returned a verdict that did not impose the death penalty. We

repeat the prosecutor’s statements:

7

Here, Sechrest argues that the improper statements affected not his

guilty verdict, but the jury’s decision to impose the death penalty. There-

fore, our review focuses on the jury’s sentencing decision.

SECHREST v. IGNACIO 14001

Statements Made During Voir Dire

Statement #1: The judge is going to give you an

instruction at the penalty phase, if we get there, that

he will impose the penalty that you say, but if you

say life in prison without parole, that doesn’t mean

that the pardons board can’t let him out. Now, would

you consider that when you arrive at your verdict?

Statement #2 : Okay. Now, [defense counsel] has

talked a lot about the possible penalties if we get

there being life with possibility of parole, life with-

out possibility of parole and death. And His Honor

will, I imagine, because many times I have been in

front of His Honor, will give you a charge, a jury

instruction saying if you impose life without parole

that really doesn’t mean life forever. If he gives you

that charge, will you take that into consideration in

deciding what the verdict ought to be?

Statements Made During Closing Argument

of the Penalty Phase

Statement #3: Now, the judge has told you that if

you return a verdict, whatever verdict you return, he

will impose. He also told you, and it is very impor-

tant under the laws of this state, the State of Nevada,

any sentence imposed by the jury may be refused 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 sen-

tence, the Court has no way of knowing. Indeed, you

don’t either. The State Board of Pardon commission-

ers, however, would have the power to modify any

sentence at a later date. And what that means is,

let’s say you fall — I am going to talk about his

14002 SECHREST v. IGNACIO

defense. It was a fraud. And let’s say you fall for that

fraud and you say well, gee, I just can’t bring myself

to do what I should do, and I am going to impose life

without parole. You don’t die in prison of old age.

People get out. Now, are you prepared to risk the life

of some other person or child by giving him the

opportunity to get out? That will be your risk. That

will be your burden.

Statement #4: Never getting out. As the judge has

instructed you, the pardons board has the ultimate

authority to review any sentence, to pardon anybody.

If you return a verdict of life without possibility of

parole, I represent to you as a lawyer, as an attorney

for the people of this county, that the pardons board

has the authority to commute that tomorrow if they

want to. They won’t, of course, but they have the

authority to. So don’t buy that he is going to go to

jail forever. It just doesn’t happen.

(Emphases added.)

In making these false, inflammatory statements, the prose-

cutor violated Sechrest’s due process right to a fair trial.

[14] First, the prosecutor repeatedly misled the jurors by

suggesting that a decision by the Board of Pardon Commis-

sioners could (and likely would) free Sechrest if the jury did

not return a verdict imposing the death sentence. The prosecu-

tor claimed that the Board of Pardon Commissioners had the

“ultimate authority” to commute a verdict of life in prison

without the possibility of parole “tomorrow.” The prosecutor

told the jury, “You don’t die in prison of old age. People get

out.” He then warned the jury not to “buy that [Sechrest] is

going to jail forever. It just doesn’t happen.”8

8

We note that the district court found that these false statements consti-

tuted error.

SECHREST v. IGNACIO 14003

[15] The prosecutor’s statement that no individual sen-

tenced to life imprisonment “is going to go to jail forever. It

just doesn’t happen,” is patently false. The prosecutor pres-

ented no evidence to back up this outlandish statement. Thus,

this statement constituted improper testimony. See, e.g.,

United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978)

(explaining that an attorney “may not inject into his argument

any extrinsic or prejudicial matter that has no basis in the evi-

dence” because such improper “testimony” will “increase the

apparent probative force of [the attorney’s argument] by vir-

tue of his personal influence, his presumably superior knowl-

edge of the facts and background of the case, and the

influence of his official position.”).

Moreover, the prosecutor’s assertion that the actions of the

Board of Pardon Commissioners could ultimately result in

Sechrest’s release was not true under existing Nevada law.

When Sechrest was tried in 1983 for committing the two mur-

ders, the power of the Board of Pardon Commissioners to

commute a sentence of life without the possibility of parole to

a sentence of life with the possibility of parole was severely

curtailed under Nevada Constitution Article 5, section 14(2).9

9

In 1982, article 5, section 14(2) was added to the Nevada Constitution.

Article 5, section 14(2) reads as follows:

Except as may be provided by law, a sentence of death or a sen-

tence of life imprisonment without possibility of parole may not

be commuted to a sentence which would allow parole.

Thus, the plain language of Article 5, section 14(2)—in effect at the time

of Sechrest’s trial in 1983—indicates that the Board of Pardon Commis-

sioners could not commute a sentence of life without the possibility of

parole.

Despite this plain language, the Nevada Supreme Court held in 1990

that the Board of Pardon Commissioners did retain limited power to make

such a commutation. See Smith v. State, 802 P.2d 628 (Nev. 1990).

Though the decision in Smith was issued seven years after Sechrest’s trial,

it does not appear to announce “new” law. Rather, it appears that Smith

merely clarified the law in effect at the time Article 5, section 14(2) was

enacted in 1982.

14004 SECHREST v. IGNACIO

Thus, the prosecutor’s suggestion that the Board of Pardon

Commissioners could easily commute a sentence of life

imprisonment without the possibility of parole was false.

More importantly, Sechrest was on probation at the time he

committed the two murders in 1983. Under Nevada law in

effect at the time of Sechrest’s offense (and still in effect

today), an individual who is on probation at the time he com-

mits another offense—here, the two murders—is not eligible

for parole by the Parole Board on that offense. See Nev. Rev.

Stat. § 213.1099(4)(e) (“NRS 213.1099(4)(e)”) (prohibiting

the reduction of a sentence to one allowing parole if the con-

victed individual had “[failed] in parole, probation, work

release or similar programs”). The Nevada Supreme Court has

held that NRS 213.1099(4)(e) applies even in situations where

the Board of Pardon Commissioners commutes a sentence of

life without the possibility of parole to a sentence allowing for

parole. See Smith v. State, 802 P.2d 628, 630 (Nev. 1990)

(explaining that while “the board of pardons retains the power

to commute a sentence of life without the possibility of parole

to a sentence allowing for parole,” the “parole board

[remains] subject to the restrictions of NRS 213.1099(4)(e),”

and therefore cannot grant parole to those who were on proba-

tion at the time of their offenses, even if their sentences have

been commuted by the Board of Pardon Commissioners).

[16] Thus, even if Sechrest had received sentences of life

without the possibility of parole for the two murders, and the

Board of Pardon Commissioners later commuted those sen-

tences to life with the possibility of parole, the Parole Board

would not have had the power to release Sechrest because he

For this reason, we cannot hold, as Sechrest argues, that the Board of

Pardon Commissioners entirely lacked the power under the plain language

of Article 5, section 14(2), to commute Sechrest’s sentence at the time of

his trial in 1983—although, as we next explain, it did lack that power for

a different reason.

SECHREST v. IGNACIO 14005

was on probation when he committed the two murders in 1983.10

That was the law in Nevada at the time of Sechrest’s trial, and

it is the law that remains in effect today. Accordingly, con-

trary to the prosecutor’s repeated assertions, the Board of Par-

don Commissioners did not have the power to parole

Sechrest.

The prosecutor compounded the damaging effect of his

erroneous assertions by “representing” to the jury that “as a

lawyer, as an attorney for the people of this county,” “the par-

dons board has the authority to commute [a sentence of life

without possibility of parole] tomorrow if they want to.” As

the Supreme Court has observed, a “prosecutor’s opinion car-

ries with it the imprimatur of the Government and may induce

the jury to trust the Government’s judgment rather than its

own view of the evidence.” United States v. Young, 470 U.S.

1, 18-19 (1985). By vouching for the truthfulness of his own

unsupported, inaccurate assertions, the prosecutor committed

flagrant misconduct. Cf. United States v. Molina, 934 F.2d

1440, 1444-45 (“As a general rule, a prosecutor may not

express . . . belief in the credibility of government witnesses.

Such prosecutorial vouching, which consists of either placing

the prestige of the government behind the witnesses through

personal assurances of their veracity or suggesting that infor-

mation not presented to the jury supports the witnesses’ testi-

mony, is improper.”) (citation omitted).

Additionally, the prosecutor inflamed the passions of the

jury by calling the defense a “fraud,” and telling the jurors

that if they “[fell] for that fraud,” they would be “risk[ing] the

life of some other person or child.” The prosecutor told the

jury, “[t]hat will be your risk. That will be your burden.” We

10

Though Sechrest presents his argument regarding NRS 213.1099(4)(e)

for the first time on appeal, the district court addressed it sua sponte

below. Because the district court decided the question on the merits, we

may review it. See Cadillac Fairview of Cal. Inc. v. United States, 41 F.3d

562, 565 n.3 (9th Cir. 1994).

14006 SECHREST v. IGNACIO

have held that similar inflammatory comments violate a crim-

inal defendant’s right to a fair trial. See United States v. San-

chez, 176 F.3d 1214, 1222 (9th Cir. 1999) (holding that the

prosecutor committed misconduct “denigrating the defense as

a sham”); Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975) (per

curiam) (describing the prosecutor’s statement that maybe

next time the victim “will be someone you know” as “highly

inflammatory and wholly impermissible”).

In short, the prosecutor’s statements were inflammatory,

unsupported, and inaccurate. Significantly, neither defense

counsel nor the trial judge did anything to stop the prosecutor

from making these statements.11

To make matters worse, the trial judge gave the jury an

instruction that increased the risk that the prosecutor’s mis-

conduct would affect the jury’s verdict. In relevant part, the

trial judge instructed the jury:

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 Par-

don Commissioners upon review, if requested by the

defendant, would change that sentence, this Court

11

The State cites Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (per

curiam) for the proposition that Sechrest’s due process claim is procedur-

ally barred under Nevada law from federal habeas review because defense

counsel failed to object during voir dire and during closing argument to

the prosecutor’s misleading assertions. But the Nevada Supreme Court

addressed Sechrest’s due process claim on the merits, not treating it as

procedurally barred, so we may do so as well. See Wood v. Alaska, 957

F.2d 1544, 1549 (9th Cir. 1992).

Additionally, as noted below, we hold that Sechrest’s counsel provided

him with ineffective assistance. It is therefore unsurprising that defense

counsel failed to object to the prosecutor’s blatantly inappropriate

remarks.

SECHREST v. IGNACIO 14007

has no way of knowing. The State Board of Pardon

Commissioners, however, would have the power to

modify any sentence at a later date.

(Emphasis added.)

Jury instructions that describe commutation may be appro-

priate where those instructions are accurate. California v.

Ramos, 463 U.S. 992, 1004 (1983). However, an instruction

that is accurate in the abstract can nonetheless violate the

Constitution if it inaccurately describes the possibility of

clemency on the facts of the defendant’s case. Coleman v.

Calderon, 210 F.3d 1047, 1050-51 (9th Cir. 2000) (noting

that the prosecutor’s argument on the necessity of imposing

a death sentence exacerbated the prejudice of a misleading

jury instruction on executive clemency); Gallego v. McDan-

iel, 124 F.3d 1065, 1074-77 (9th Cir. 1997) (finding that

Nevada’s instruction on the possibility of executive clemency

was misleading because the defendant was under the sentence

of death in another jurisdiction, yet Nevada’s instruction

implied that early parole was available for the defendant).

Furthermore, the need for accurate jury instructions is height-

ened where, as in this case, the prosecution argues the issue

of a defendant’s future dangerousness. E.g., Simmons v. South

Carolina, 512 U.S. 154, 163-66 (1994) (explaining that inac-

curate instructions about parole eligibility may deprive a

defendant of due process when the defendant’s future danger-

ousness is at issue).

Here, the jury instruction reinforced the prosecutor’s argu-

ment that the Board of Pardon Commissioners was the entity

responsible for deciding Sechrest’s term of imprisonment.

The jury instruction emphasized that the Board of Pardon

Commissioners had the “power to modify any sentence” and

that the court had “no way of knowing” whether the Board of

Pardon Commissioners would do so. When combined with

the prosecutor’s assertion that “the pardons board has the ulti-

mate authority to review any sentence, to pardon anybody,”

14008 SECHREST v. IGNACIO

the jury instruction contributed to the false impression that the

Board of Pardon Commissioners could free Sechrest if he

were not sentenced to death. Because the jury instruction

invited the jury to accept the prosecutor’s speculation “that

the only way [the jury] could be assured [that Sechrest] would

not be released would be to sentence him to death,” it exacer-

bated, rather than corrected, the inaccurate effect of the prose-

cutor’s arguments. Coleman, 210 F.3d at 1051.

[17] Bottom line: the prosecutor misled the jurors to

believe that if they did not impose the death penalty, Sechrest

could be released on parole and would kill again. In making

his erroneous assertions, the prosecutor gave improper testi-

mony, used his position as an attorney “for the people” to

vouch for that improper testimony, and most likely inflamed

the passions of the jury. The trial judge did nothing to stop the

prosecutor from making these erroneous assertions. Instead,

the trial judge gave a jury instruction that validated the prose-

cutor’s false and inflammatory statements. In these circum-

stances, we conclude that the prosecutor committed

misconduct rising to the level of constitutional error.

2.

We must now decide whether the constitutional error preju-

diced Sechrest. Our prejudice inquiry focuses on the totality

of the effect of the error. Williams v. Taylor, 529 U.S. 362,

398-99 (2000) (reviewing the “entire postconviction record”

in conducting a prejudice inquiry). We review the “entire pro-

ceedings” to determine whether the prosecutor’s misleading

remarks “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Hall, 935 F.2d

at 165 (quotation omitted). We hold that they did.

[18] A jury sitting in a capital case must be given a clear

choice between the death penalty and a life sentence. See

Coleman v. Calderon, 150 F.3d 1105, 1118 (9th Cir.), rev’d

on other grounds, 525 U.S. 141 (1998) (noting “the Supreme

SECHREST v. IGNACIO 14009

Court’s emphasis on the importance of accuracy in the

description of sentencing alternatives in a death penalty pro-

ceeding”). Here, the jury was not given that choice. The pros-

ecutor repeatedly told the jury that Sechrest would be released

if he did not receive the death penalty. The trial judge did

nothing to stop the prosecutor from making this false repre-

sentation, and gave a jury instruction that confirmed it.

Finally, the prosecutor told the jurors that they would be

“risk[ing] the life” of “some other child” if they did not sen-

tence Sechrest to death. Accordingly, we hold that the prose-

cutor’s misconduct, combined with the court’s inaccurate jury

instruction, had a substantial and injurious effect on the jury’s

decision to impose the death penalty on Sechrest.

[19] Though the prosecutor’s misconduct alone justifies

this holding, we note that Dr. Gerow’s testimony exacerbated

the prejudicial effect of the prosecutor’s remarks.12 Dr. Gerow

was the prosecution’s primary penalty phase witness. After

stating that he had examined Sechrest at defense counsel’s

request, Dr. Gerow testified that Sechrest had an extensive

criminal history that included burglary, possession of stolen

property, and possession of narcotics. Dr. Gerow further testi-

fied that Sechrest had a “callous disregard for human life” and

was an incurable sociopath who, if released, would pose a

danger to others, particularly to little girls. Dr. Gerow’s testi-

mony that Sechrest was extremely dangerous and could not be

rehabilitated likely had a substantial influence on the jury’s

decision to sentence Sechrest to death.

12

Like the district court, we recognize the “interplay” between Se-

chrest’s due process claim and his ineffective assistance of counsel claim

concerning the admission of Dr. Gerow’s testimony. As discussed below,

we hold that Sechrest’s counsel provided him with ineffective assistance

by allowing the State to call Dr. Gerow as a penalty phase witness. We

note, however, that even if counsel’s performance was not ineffective in

this regard, we would still consider the impact of Dr. Gerow’s damaging

testimony in examining the entire proceedings to determine the totality of

the effect of the prosecutor’s misleading and inflammatory argument.

14010 SECHREST v. IGNACIO

[20] In reaching this conclusion, we depart from the state

post-conviction court’s and the district court’s analysis of Dr.

Gerow’s testimony. Both courts theorized that Dr. Gerow’s

testimony, though extremely harmful to Sechrest, was “cumu-

lative,” putting nothing new before the jurors that they did not

already know. In so theorizing, both courts neglected to rec-

ognize the significance of Dr. Gerow’s role as a mental health

expert. As the Supreme Court has explained:

[P]sychiatrists gather facts, through professional

examination, interviews, and elsewhere, that they

will share with the judge or jury; they analyze the

information gathered and from it draw plausible con-

clusions about the defendant’s mental condition, and

about the effects of any disorder or behavior; and

they offer opinions about how the defendant’s men-

tal condition might have affected his behavior at the

time in question. . . . Unlike lay witnesses, who

merely describe symptoms they believe might be rel-

evant to the defendant’s mental state, psychiatrists

can identify the “elusive and often deceptive” symp-

toms of insanity, and tell the jury why their observa-

tions are relevant. Further, where permitted by

evidentiary rules, psychiatrists can translate a medi-

cal diagnosis into language that will assist the trier

of fact, and therefore offer evidence in a form that

has meaning for the task at hand. Through this pro-

cess of investigation, interpretation, and testimony,

psychiatrists ideally assist lay jurors, who generally

have no training in psychiatric matters, to make a

sensible and educated determination about the men-

tal condition of the defendant at the time of the

offense.

Ake v. Oklahoma, 470 U.S. 68, 80-81 (1985) (citations omit-

ted). Dr. Gerow’s testimony cannot be considered merely “cu-

mulative” because of his role as the only medical doctor to

discuss Sechrest’s criminal past and pathology during the pen-

SECHREST v. IGNACIO 14011

alty phase. While other lay witnesses may have touched on

some of the same points that were presented by Dr. Gerow,

only Dr. Gerow had the education and experience necessary

to evaluate Sechrest’s dangerousness. Thus, his opinion car-

ried more credibility. Dr. Gerow’s connection with the

defense, and his inability to say anything positive or even mit-

igating about Sechrest, meant that the prosecutor’s misleading

remarks and the erroneous jury instruction likely had particu-

lar impact on the jury.

The State contends that the prosecutor’s misconduct did not

directly relate to one of the statutory aggravating and mitigat-

ing factors presented to the jury, and therefore played no role

in the jury’s sentencing decision. The State’s contention is

misguided: the question of prejudice focuses on the totality of

the effect of the error, Williams, 529 U.S. at 398, not whether

the error relates directly to an aggravating or mitigating fac-

tor. Moreover, under Nevada law, the jury has the power to

impose a sentence less than death regardless of the weight of

aggravation or the total lack of mitigation. Evans v. State, 28

P.3d 498, 515 (Nev. 2002); Bennett v. State, 787 P.2d 797,

803 (Nev. 1990), overruled on other grounds by Leslie v.

Warden, 59 P.3d 440 (Nev. 2002). Accordingly, the fact that

the prosecutor’s arguments did not directly relate to an aggra-

vating factor is not determinative of our prejudice inquiry.13

Furthermore, the only mitigating factor offered by the

defense—Sechrest’s lack of a violent criminal past, with the

13

In addition, we have already explained that three of the four aggravat-

ing factors have since been held unconstitutional. Supra at 15993. Thus,

it is virtually certain that on remand, the district court will strike some, if

not all, of the aggravating factors as invalid. Although we do not consider

the invalidity of those aggravating factors as part of our prejudice analysis,

we note that the aggravating factors undoubtedly had a substantial and

injurious effect on the jury’s imposition of the death penalty. Indeed, as

the district court conceded, “the most important considerations informing

the sentencing decision must have been the aggravating circumstances

relating to the nature of the crimes.”

14012 SECHREST v. IGNACIO

implication that he was unlikely to be dangerous in prison—

was in fact affected by the prosecutor’s misconduct. The pros-

ecutor argued and improperly vouched that Sechrest would be

released and would kill again if he was not sentenced to death.

The jury was more likely to believe that argument after hear-

ing Dr. Gerow testify that Sechrest had an extensive criminal

history and was an “incurable sociopath” who posed a danger

to little girls.

Finally, the State argues that because Sechrest’s crime was

one “of utter depravity—unthinkable by most people in the

abstract,” we would “demean both Brecht and the jury that

sentenced Sechrest to death” if we held that the constitutional

violation prejudiced Sechrest. This argument, however, is

analogous to the argument that the Supreme Court condemned

in Godfrey v. Georgia, 446 U.S. 420 (1980). In Godfrey, the

Supreme Court reviewed an affirmation of a death sentence

“based upon no more than a finding that the offense was ‘out-

rageously or wantonly vile, horrible and inhuman.’ ” 446 U.S.

at 428. The Supreme Court reversed, reasoning that “[t]here

is nothing in these few words, standing alone, that implies any

inherent restraint on the arbitrary and capricious infliction of

the death sentence. A person of ordinary sensibility could

fairly characterize almost every murder as ‘outrageously or

wantonly vile, horrible and inhuman.’ ” Id. at 428-29.

In short, all first degree murders can be described as “un-

thinkable.” Merely labeling them as such does not mean that

all jurors will find that they warrant the death penalty, nor

does the label relieve us of our duty to determine whether the

constitutional errors that occurred in this case deprived Se-

chrest of a fair trial.

[21] We conclude that, when viewed against the back-

ground of the entire proceedings, including Dr. Gerow’s testi-

mony and the misleading jury instruction, the prosecutor’s

erroneous and inflammatory assertions had a substantial and

injurious effect in determining the jury’s sentencing verdict.

SECHREST v. IGNACIO 14013

Because Sechrest was deprived of his due process right to a

fair penalty phase trial, he must be resentenced.

B.

Next, Sechrest argues that his trial counsel provided him

with ineffective assistance by allowing the prosecution to call

Dr. Gerow as a penalty phase witness. We address this issue

because it is connected to and throws additional light on the

prosecutorial misconduct question, and because it may be per-

tinent if the penalty phase is retried. We emphasize, however,

that our prosecutorial misconduct ruling is an independent

basis for reversing the penalty phase judgment.

A defendant’s Sixth Amendment right to representation in

a criminal trial includes the right to effective assistance of

counsel. Duncan v. Ornoski, 528 F.3d 1222, 1233 (9th Cir.

2008). Claims of ineffective assistance of counsel are mixed

questions of law and fact which we review de novo. Beards-

lee v. Woodford, 358 F.3d 560, 569 (9th Cir. 2004). Though

state court findings of fact are entitled to deference, we

reserve the right to give different legal weight to such facts.

See Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir.

1986).

To succeed on his ineffective assistance of counsel claim,

Sechrest must show that (1) his trial counsel’s performance

“fell below an objective standard of reasonableness” and (2)

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688,

694 (1984).14

We hold that Sechrest has met both Strickland require-

14

The requirements of Strickland apply to sentencing. See Gardner v.

Florida, 430 U.S. 349, 358 (1977).

14014 SECHREST v. IGNACIO

ments. He is entitled to resentencing on this alternative

ground for relief.

1.

Under Strickland, counsel’s competence is presumed. Id. at

689. To rebut this presumption, Sechrest must demonstrate

that his counsel’s performance was unreasonable under pre-

vailing professional norms and was not the product of sound

strategy. Id. at 688-89. We consider counsel’s performance

deficient if it falls outside the range of competence demanded

of attorneys in criminal cases. Turner v. Calderon, 281 F.3d

851, 879 (9th Cir. 2002).

Here, for three main reasons, we hold that counsel’s repre-

sentation of Sechrest fell far outside the range of competence

demanded of an attorney representing a criminal defendant

who is facing the death penalty.

[22] First, counsel should not have allowed the prosecution

to review Dr. Gerow’s confidential report on Sechrest’s men-

tal health. Dr. Gerow evaluated Sechrest two months before

trial at defense counsel’s request. After reviewing Dr.

Gerow’s report and discussing it with Dr. Gerow, Sechrest’s

counsel decided not to call Dr. Gerow as witness for the

defense. Inexplicably, however, counsel disclosed Dr.

Gerow’s confidential and privileged report to the prosecution.

The report contained information about Sechrest’s criminal

history and his upbringing that Sechrest had revealed only to

Dr. Gerow. The report also contained Dr. Gerow’s diagnosis

that Sechrest had a “polymorphous perversion.”

Without Dr. Gerow’s report, the prosecution would not

have had access to this privileged information. More impor-

tantly, defense counsel had absolutely no obligation to dis-

close Dr. Gerow’s confidential report to the prosecution. By

allowing the prosecution to review and introduce into evi-

SECHREST v. IGNACIO 14015

dence Dr. Gerow’s report on Sechrest, defense counsel per-

formed deficiently.

[23] Second, Sechrest’s counsel should not have stipulated

to the prosecutor calling Dr. Gerow as a witness for the prose-

cution. Counsel’s decision to so stipulate is indefensible. This

decision put counsel in the difficult position of having to

cross-examine the only mental health expert to testify during

the penalty phase of Sechrest’s trial, even though counsel

himself had chosen Gerow and supplied him with information

about Sechrest. Furthermore, the jury was told that Dr. Gerow

was hired by the defense to examine Sechrest and report on

his mental health. Given that the defense’s expert not only

had nothing favorable to say about Sechrest, but thought that

he was beyond all hope of rehabilitation, the jurors had even

less incentive to impose a sentence that they were told by the

prosecutor and the court might lead to Sechrest’s eventual

release.

At the November 8, 1990 state court evidentiary hearing on

this issue, Sechrest’s counsel took the stand and testified that

he did not object to the prosecutor calling Dr. Gerow as a wit-

ness because counsel believed that Dr. Gerow would provide

helpful information about Sechrest’s troubled background.

This explanation does not indicate a sound strategic decision.

Strickland, 466 U.S. at 688-89. If counsel truly believed that

Dr. Gerow’s testimony would be helpful, the appropriate

“strategic decision” would have been to call Dr. Gerow to tes-

tify on behalf of the defense. Instead, counsel did just the

opposite. Furthermore, counsel did not pursue or argue any

mitigating factors related to Sechrest’s troubled background.

Given these considerations, counsel cannot hide behind a

later, implausible assertion that his decision was “tactical”

given that his actions show that he had no intention of pre-

senting any mitigating evidence based on Sechrest’s mental

health.15

15

We are aware that the district court found that counsel’s decision to

allow the prosecution to call Dr. Gerow to the stand was “made with the

14016 SECHREST v. IGNACIO

[24] Third, counsel’s level of preparation for Dr. Gerow’s

testimony fell far below an objective standard of reasonable-

ness. Once counsel decided to allow the prosecution to call

Dr. Gerow as a witness, counsel had a duty to prepare for Dr.

Gerow’s testimony. “Preparing for the penalty phase of a cap-

ital trial is the equivalent of preparing for an entirely new

trial, and trial counsel must treat it as such.” Turner, 281 F.3d

at 891. Here, counsel did not speak with Dr. Gerow after

agreeing to let him testify for the prosecution. Counsel’s lack

of preparation for Dr. Gerow’s testimony is evident from

counsel’s lackluster performance at trial. During his cross-

examination of Dr. Gerow, counsel asked several questions

about whether Sechrest could be cured and whether counsel-

ing could help Sechrest. In response, Dr. Gerow described any

such efforts as “absolutely fruitless” and stated that Sechrest’s

case was a hopeless one.

In sum, some of the most damaging testimony presented

during the penalty phase of trial was elicited by Sechrest’s

own counsel, from a witness Sechrest’s counsel had originally

selected and could have prevented from testifying. Indeed, as

the state post-conviction court observed, “the ‘balance’ of Dr.

Gerow’s testimony [did] not favor Mr. Sechrest. It favor[ed]

the State.” Unsurprisingly, Sechrest’s counsel admitted at the

state court evidentiary hearing that Dr. Gerow’s testimony

was damaging and that counsel was unhappy with it. Had

counsel adequately prepared for his cross-examination of Dr.

Gerow, he would not have asked questions that elicited such

negative answers.

[25] For the foregoing reasons, we conclude that counsel’s

performance was deficient under prevailing professional

benefit of adequate information.” The district court’s finding, however, is

not supported by the record. Though the district court found that counsel

talked to Dr. Gerow on “at least three occasions,” the record reflects that

each of these conversations occurred nearly two months before counsel

decided to allow the prosecution to call Dr. Gerow as its witness.

SECHREST v. IGNACIO 14017

norms and was not the product of sound strategy. Our conclu-

sion comports with that of the Nevada state post-conviction

court—the only court to conduct an evidentiary hearing on

this issue.

2.

[26] Because we have determined that counsel’s perfor-

mance was deficient, we must now decide whether “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” Strickland, 466 U.S. at 694. It is clear that, if Sechrest’s

counsel had performed competently, Dr. Gerow would not

have been allowed to testify for the prosecution. Further, we

have already found that Dr. Gerow’s testimony, when consid-

ered in the context of the trial as a whole, likely played an

important role in the jury’s verdict imposing the death pen-

alty. Accordingly, we conclude that Sechrest has satisfied the

prejudice prong of Strickland. He is entitled to resentencing.16

CONCLUSION

With respect to the penalty phase, we hold that Sechrest’s

Sixth and Fourteenth Amendment right to a fair trial was vio-

lated by the prosecutor’s gross misconduct. We also hold that

Sechrest’s Sixth Amendment right to effective assistance of

counsel was violated when his trial attorney allowed Dr.

Gerow to testify for the prosecution. Because we do not find

either of these constitutional violations harmless, we reverse

the district court as to Sechrest’s sentence.

With respect to the guilt phase, we hold that Sechrest’s

Miranda rights were not violated, and affirm the district court

on this ground. We also hold, however, that Sechrest’s previ-

16

Because we conclude that Sechrest is constitutionally entitled to

resentencing for two reasons, we do not address the contention that Dr.

Gerow’s testimony violates Sechrest’s Fifth Amendment rights.

14018 SECHREST v. IGNACIO

ously defaulted claims—which include both guilt and penalty

phase claims—should not have been barred from federal

habeas review. We remand these claims to the district court

for appropriate consideration.

Should the district court deny or dismiss Sechrest’s guilt

phase claims after appropriate and timely consideration, we

instruct the district court to issue a writ of habeas corpus as

to the death sentences unless, within a reasonable time, the

State grants a new penalty phase trial or imposes a lesser sen-

tence consistent with the law. We also instruct the district

court to order Sechrest removed from death row during the

pendency of the proceedings. Finally, we instruct the district

court to order any other interim relief that it deems appropri-

ate.

AFFIRMED in part, REVERSED in part, and

REMANDED for proceedings consistent with this opinion.