Petition for Writ of Certiorari — Robert J. Farmer v. George Sumner, Director, Nevada Department of Prisons

“Rp Fe te Fs

Rr eG San ws Ob 2

no.8R 53 43 i

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988 RECEIVED ‘

AUG 24 1988

“OFFICE OF THE CLERK

a SUPREME COURT, U. $.

ROBEPT J. FARMER, Petitioner, ~- cre

Vv.

DIRECTOR OF NEVADA DEPARTMENT OF nome

Su

Respondent. Sica =~

AUG 2 2 198°

PETITION FOR A WRIT OF CERTIORARI JOSEPH F. SPANIOL. JR

TO THE NEVADA SUPREME COURT CLERK

TERRI STEIK ROESER

Nevada State Public Defender

JEFFREY M. EVANS*

Appellate Deputy

308 N. Curry, Room 200

Carson City, Nevada 89710

Phone: (702) 885-4880

ATTORNEYS FOR PETITIONER

*Counsel of Record

QUESTION PRESENTED

Does this Court's decision in Booth v. Maryland,

482 U.S. (1987), barring the use of victim impact

statements at capital sentencings, apply retroactively to cases

pending on collateral review on the date Booth was decided?

-i-

TABLE OF CONTENTS

Question Presented

Table of Authorities

Opinion Below

Jurisdiction

Constitutional Provision Involved

Statement of the Case

Reasons for Granting the Writ

I.

II.

II!l.

IV.

THE NEVADA SUPREME COURT DECLINED TO APPLY

BOOTH V. MARYLAND TO THIS CASE EXPRESSLY

BECAUSE THIS COURT HAS NOT YET RULED

REGARDING BOOTH'S RETROACTIVE APPLICATION

TO PENDING HABEAS CORPUS CASES.

ALLOWING FARMER'S DEATH SENTENC= TO STAND,

PROCURED AS IT WAS THROUGH THE “USE OF

VICTIM IMPACT INFORMATION, CONFLICTS WITH

THE RULE OF BOOTH V. MARYLAND.

BOOTH V. MARYLAND SHOULD BE GIVEN COMPLETE

T, THAT IS, IT SHOULD

APPLY EVEN TO CASES PREVIOUSLY AFFIRMED

ON DIRECT APPEAL.

A. Booth v. ee Applies Retroactively

Because It D Not Announce A New

Constitutional Rule But Merely Applied

Settled Legal Principles To A

Particular Factual Setting.

B. Assuming Arguendo That Booth v. Maryland

Did Announce A New Rule, Then It Should

Still Be Fully Retroactive.

THE NEVADA COURT'S DECISION DID NOT REST ON

AN ADEQUATE AND INDEPENDENT STATE GROUND.

efie

ll

TABLE OF CONTENTS

ontinued

Conclusion

Appendix

Order Dismissing Appeal

Order Denying Rehearing

-iii-

Page

22

la

7a

TABLE OF AUTHORITIES

Page

CASES .

Allen v. Hardy, 3S, 3&9

478 U.S. 255 (1986)

Booth v. Maryland, passim

482 U.S. aoa , 96 L.Ed.2d 440,

107 S.Ct. 2529 (1987)

Caldwell v. Missi SSiEbey 22

U.S. )

Desist v. United States, 15

U.S. )

Enmund v. Florida, 3

458 U.S. 782 (1982)

Gre v. Georgia, 12, 13

428 U.S. 153 (1976)

Griffith v. Kentucky, ll, 14

479 U.S. , 93 L.Ed.2d 649, 107 S.Ct.

708 (1987)

Linkletter v. Walker, 14, i5.

o o 965) 16, 17

McCullogh v. State, 20, 21

99 Nev. 72, 657 P.2d 1157 (1983)

Michigan v. Long, 19

463 U.S. 1032 (1983)

Post v. Ohio, 9, 10

U.S. , 108 S.Ct. 1061 (1988)

Rogers v. Warden, 21

86 Nev. 359, 468 P.2d 993 (1970)

Solem v. Stumes, | te eee

465 U.S. 638 (1984) 16, 18

20

-iv-

TABLE OF AUTHORITIES

(continued)

State v. Post,

32 Ohio St.3d 380, 513 N.E.2d 754

(Ohio 1987), cert. denied sub nom.

Post v. Ohio, U.S. , 108

S.Ct. 1061 (1988)

Teague v. Lane,

U.S. , 108 S.Ct. 1106 (1988)

United States v. Johnson,

U.S. 537 (1982

Warden v. Lischko,

90 Nev. 221, 523 P.2d 6 (1974)

Witherspoon v. Illinois,

391 U.S. 510 (1968)

Woodson v. North Carolina,

Yates v. Aiken,

484 U.S. , 98 L.Ed.2d 546,

108 S.ct. 534 (1988)

Zant v. Stephens,

462 U.S. 862 (1983)

STATUTES

28 U.S.C. § 1257 (3)

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Page

9

15

a2, a3

20

16, 17

16

12, 14,

17, 18

9, 10,

13

2

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

ROBERT J. FARMER, Petitioner,

Vv.

DIRECTOR OF NEVADA DEPARTMENT OF PRISONS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEVADA SUPREME COURT

The petitioner, Robert Jeffrey Farmer, respectfully

prays that a writ of certiorari issue to review the order of the

Nevada Supreme Court dismissing his appeal, entered in the

proceeding below on March 31, 1988, and the order denying

rehearing, which was entered on June 23, 1988.

OPINIONS BELOW

The written opinion of the Nevada Supreme Court, its

Order Dismissing Appeal, is unreported and is reproduced in the

appendix hereto, p. la, infra. The subsequent order denying

reconsideration is also unreported and is reproduced in the

appendix hereto, p. 7a, infra.

JURISDICTION You cannot talk to her about this case

to this day, -- this occurred two and-a-half

The Nevada Supreme Court's Order Dismissing Appeal was years ago. To this day when you talk to her

about it she will break down and cry. I

filed on March 3l, 1988, and its Order Denying Reconsideration mean each and every time. It has had an

extreme emotional impact on this woman.

was filed on June 23, 1988. The jurisdiction of this Court is '

Id. Again, in his final argument to the sentencing panel, the

invoked under 28 U.S.C. § 1257(3).

prosecutor stressed the impact of the murder on the victim's

CONSTITUTIONAL PROVISION INVOLVED

mother: 4

U.S. Const. amend. VIII:

It is not only the lives that he

Excessive bail shall not be required, nor excessive [Farmer] took. It is the very personality,

the profile of this particular individual

fines imposed, nor cruel and unusual punishments inflicted. that I am asking to terminate. I'm asking

that this Court terminate his life.

STATEMENT OF THE CASE

I did not call Greg Gelunas' mother, as

On March 26, 1984, petitioner Robert Farmer (hereafter I previously indicated. I spoke to her

just last night. But I can tell the Court

"Farmer") pleaded guilty to the murder of Greg Gelunas, which had that not only did he kill two human beings,

he certainly shattered some other lives

occurred in Las Vegas, Nevada on January 19, 1982. The State of psychologically. .

Nevada sought the death penalty, and a penalty hearing was held And, of course, that happens any time a

human being is killed, I suppose. And I

before a three-judge panel on May 10 and ll, 1984. can't isolate this case as being any

exception.

i At the hearing, the state prosecutor argued for

But it is an exception in the sense

imposition of the death penalty and, in support of his argument, that there were two killings. And so we

simply double the number of people, other

relied on two distinct items of “victim impact” information. people who were killed -- I'm sorry. Who

were injured as a result of Mr. Farmer's

The first item related to the impact of the Gelunas actions.

murder on the victim's mother. At the close of his evidence at Mrs. Gelunas, I can represent to the

Court, is an extremely emotionally

the penalty phase, the prosecutor indicated that he was not distraught woman, to this day. She, to

this date, she has doctor's help. To this

calling the victim's mother to testify "because of her mental date, she, at least reports to me, to have

repeated nightmares, crying, and I can see

state." Record on Appeal (Vol.II) at 513, Farmer v. Director, the crying for myself. Extremely

emotionally traumatic.

No. 18052 (Nev. S.Ct.). He reported the following concerning the

impact of the crime on the victim's mother: -3-

~~

And Mr. Farmer, I'm certain in his mind,

never gave it a thought. Never thought

about the victims. Never gave the families

of the victims, a thought.

Id. at 620. Farmer's attorney made no objection to the

prosecutor's reference to the impact of the murder on Mrs.

Gelunas. Likewise, Farmer's attorney made no objection to the

above reference to two killings -- even though one of them was a

homicide unrelated to the Gelunas murder.

The second item of victim impact information the

prosecutor relied on concerned a kidnapping unrelated to the

Gelunas murder. One Linda Cobb testified that on Janvary 16,

1982, three days before the Gelunas murder in Las “egas, Farmer

stole her car and kidnapped her and her 13-year old son near

Reno, Nevada. The prosecutor asked Mrs. Cobb, "Has this episode

had any affect [sic] on you... . ? Mrs. Cobb replied that

Farmer “could have absolutely destroyed [her] life ...." She

reported changing her job, resiience, and automobile. Id. at

445. The prosecutor then asked about the effect of the

kidnapping on her son. Mrs. Cobb gave the following reply:

Well, I'm not a child psychology expert.

However I don't know if it's relatable to his

age or something that is a result of this

incident. But we are having problems with my

son and he is now living with my ex-husband

in an effort to try and find out what is

wrong.

Id. at 445-446. Farmer's attorney did not object to this

-4-

testimony.

The three-judge panel subsequently sentenced Farmer to

"be punished by death.” The Nevada Supreme Court affirmed his

conviction and sentence on direct appeal on August 27, 1985.

Farmer v. State, 101 Nev. 419, 705 P.2d 149 (1985). Farmer then

petitioned this Court for a writ of certiorari, which was denied

on May 19, 1986.

On September 19, 1986, Farmer filed a state petition

for a writ of habeas corpus challenging his conviction and

sentence. The state district court denied relief by an order

entered on March 20, 1987. Farmer filed a timely appeal to the

Nevada Supreme Court.

Between the filing of Farmer's notice of appeal

(April 6, 1987) and the filing of his opening brief in the Nevada

Supreme Court (July 22, 19°27), this Court decided Booth v.

Maryland, 482 U.S. __—_—s« (decided June 15, 1987) and forebade the

use of victim impact statements in capital sentencing

proceedings.

In his opening brief, filed about five weeks after

Booth, Farmer raised for the first time the question whether the

use of victim impact information at his sentencing violated the

eighth amendment. Appellant's Opening Brief at 21, Farmer v.

Director, No. 18052 (Nev. S.Ct.). In its answering brief,

Respondent candidly stated, "There is no question that some of

the statements and evidence presented to the three-judge panel at

the penalty hearing were inappropriate under the recent decision

-5-

a

in Booth v. Maryland.” Respondent's Answering Brief at 15,

Farrer v. Director, supra (filed September 9, 1987).

Noting that Farmer's sentence was affirmed on direct

appeal before Booth, the Nevada Supreme Court declined to apply

Booth retroactively. The court stated, "The United States

Supreme Court has not defined the limits of retroactive

application of the Booth decision, and absent the high court's

direction we will not extend the application of that decision to

the degree which reversal [of] this case would require.”

Farmer v. Director, No. 18052, Order Dismissing Appeal at 2-?

(March 31, 1988) (reproduced in appendix infra).

In the instant petition, Farmer seeks review of the

Nevada Supreme Court's refusal to apply Booth to his case absent

this Court's direction.

REASONS FOR GRANTING THE WRIT

I. THE NEVADA SUPREME COURT DECLINED TO APPLY BOOTH V. MARYLAND

TO THIS CASE EXPRESSLY BECAUSE THIS COURT HAS NOT YET RULED

REGARDING BOOTH'S RETROACTIVE APPLICATION TO PENDING HABEAS

CORPUS CASES.

In Booth v. Maryland, 482 U.S. , 96 L.Ed 2d 440,

107 S.Ct. 2529 (1987), this Court held that the introduction of

victim impact information at the penalty phase of a capital trial

violates the eighth amendment. As discussed in the Statement of

the Case, supra, Farmer was sentenced to death after the

sentencing panel received victim impact information concerning

the Las Vegas murder for which he was being tried as well as

victim impact information concerning unrelated prior crimes.

Before the Nevada Supreme Court, on appeal from the denial of

post-conviction relief, Respondent conceded that “there is no

guestion that some of the statements anc evidence presented to

the three-judge panel at the penalty heaiing were inappropriate

under the recent decision in Booth v. Maryland.” Respondent's

Answering Biief at 15, Farmer v. Director, No. 18052 (Nev.

S.Ct.). Noting that Farmer's conviction was affirmed on direct

appeal before Booth was decided, the Nevada Supreme Court

nevertheless declined to apply Booth, saying as follows: "The

United States Supreme Court has not defined the limits of

retroactive applivation of the Booth decision, and absent the

high court's direction we will not extend the application of that

decision to the degree which reversal [of] this case would

require.” See Order Dismissing Appeal at 2-3 (reproduced in

appendix), citing Solem v. Stumes, 465 U.S. 638 (1983). The

Nevada Supreme Court in effect held that Booth would not apply

retroactively to a capital case where the conviction was affirmed

vn direct appeal before the date Booth was decided.

Neither in Booth nor in any subsequent case has this

Court decided whether Booth will Le given full retroactive

application. Farmer submits that this case merits review by this

Court so that the question of Booth's retroactive application can

oJo

be resolved. The Nevada Supreme Court has allowed Farmer's death

sentence to stand even though it was obtained in violation of the

eighth amendment, as explicated by Booth. Assuming Booth is

given full retroactive application, the Nevada Supreme Court's

decision upholding Farmer's sentence is in conflict with Booth.

The question of Booth's retroactivity is a question that has not,

but should be, settled by this Court.

II. ALLOWING FARMER'S DEATH SENTENCE TO STAND, PROCURED AS IT

WAS THROUGH THE USE OF VICTIM IMPACT INFORMATION, CONFLICTS

WITH THE RULE OF BOOTH V. MARYLAND,

As discussed in the Statement of the Case, supra,

Farmer was sentenced to death after the sentencing panel received

victim impact information. This information can be divided into

two categories: (1) the impact of the Gelunas murder on the

victim's mother; and (2) the impact of an unrelated prior

kidnapping and robbery on a different victim and her son.

Under Booth v. Meryland, a death sentence based on

victim impact information violates the eighth amendment. The

first category of victim impact information relied on here, the

impact of the crime on the murder victim's mother, is exactly the

type of information Booth forbids. In Booth, this Court held

that the “emotional impact of the crimes on the family" is

"irrelevant to a capital sentencing decision.” 96 L.Ed.2d at

448.

The second category of victim impact information, the

testimony regarding the impact of a prior and unrelated

kidnapping and robbery, is even more objectionable. The

principle underlying Booth is that a capital sentencing decision

must be based on the character of the accused and the

circumstances of the crime for which he is being sentenced.

Booth, 96 L.Ed.2d at 448, guoting Zant v. Stephens, 462 U.S. 862,

879 (1983). Any other factor considered by the sentencing body

must bear on the accused's "'personal responsibility and moral

guilt.'" Id., quoting Enmund v. Florida, 458 U.S. 782, 801

(1982). The victim impact of Farmer's unrelated prior offenses

is even less relevant than the victim impact of the crime for

which he was being sentenced. Since Booth forbids the latter

type of victim impact information, it must necessarily by

implication forbid the former: the impact of prior unrelated

crimes was wholly irrelevant to the decision whether to sentence

Farmer to death for the Gelunas murder. Farmer's death sentence

was, therefore, obtained in violation of Booth.

Although the Nevada Supreme Court did not reach the

issue, some lower courts have refused to apply Booth where, as

here, the sentencing decision was made by a judge, not a jury.

E.g., State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754 (Ohio

1987), cert. denied sub nom. Post v. Ohio, ____—U.S. ___, - 108

S.Ct. 1061 (1988). These cases are wrongly decided. The

creation by these lower courts of a "judge's exception" is

-9-

inconsistent with Booth. The precise holding in Booth is stated

in the first paragraph of section III of the Opinion: "[T]he

introduction of a VIS at the sentencing phase of a capital murder

trial violates the eighth amendment ... ." 96 L.Ed.2d at 452.

The holding in Booth was unqualified and not limited to those

cases where the sentencing body is a jury. If victim impact

information is irrelevant to a capital sentencing decision, it

remains irrelevant regardless of whether the judge or jury makes

the decision. In this case, the prosecutor introduced

significant victim impact information and argued for the death

penalty based upon that information. Nothing in the record below

suggested that the three-judge panel sentencing Farmer to death

was immune to this type of appeal or that the panel assigned the

victim impact information no weight in its deliberations. As in

Booth, there is too great a risk that Farmer's death sentence is

"based on considerations that are ‘constitutionally impermissible

or totally irrelevant to the sentencing process.'" Booth, 96

L.Ed. at 448, quoting Zant v. Stephens, 462 U.S. at 885. See

also Post v. Ohio, ____—U-S.____, 108 S.Ct. 1061, 1062-1063

(1988) (Marshall, J., dissenting from the denial of certiorari).

Farmer's sentence of death cannot stand - if Booth

applies retroactively to his conviction. The question of Booth's

retroactivity is taken up next.

-10-

III. BOOTH V. MARYLAND SHOULD BE GIVEN COMPLETE RETROACTIVE

EFFECT, THAT IS, IT SHOULD APPLY EVEN TO CASES PREVIOUSLY

AFFIRMED ON DIRECT APPEAL.

This Court announced its decision in Booth on June 15,

1987. Had Farmer's case been pending on direct appeal at that

time, Booth would apply to this case as a matter of course. See

Griffith v. Kentucky, 479 U.S. __, 93 L.Ed.2d 649, 107 S.Ct.

708 (1987). The problem is that Farmer's conviction was affirmed

on direct appeal in August 1985. After losing his direct appeal,

Farmer filed a petition for writ of certiorari with this Court

which was denied on May 19, 1986. Subsequently, in September

1986, Farmer filed a petition for writ of habeas corpus in state

court. He did not receive a final decision on his petition until

March 1987. On April 6, 1987, Farmer filed a timely notice of

appeal to the Nevada Supreme Court. His opening brief in the

Nevada Supreme Court was filed on July 22, 1987.

Between the time Farmer filed his notice of appeal from

the denial of his habeas corpus petition (April 6, 1987) and the

time he filed his opening brief in the Nevada Supreme Court

(July 22, 1987), this Court announced its decision in Booth

(June 15, 1987). Farmer raised his claim under Booth for the

first time in his opening brief.

The Booth decision should be available to Farmer in

collaterally attacking his sentence for the reasons set forth

below.

-ll-

A. Booth v. Maryland Applies Retroactively

Because It Did Not Announce A New Constitutional

Rule But Merely Applied Settled Legal Principles

To A Particular Factual Setting. '

If the holding of a new decision of this Court merely

involves the application of “settled precedents” to a new and

different factual setting, it is a “foregone conclusion” that the

holding will apply retroactively. Unit States v. Johnson,

457 U.S. 537, 549 (1982). More precisely, in such a situation,

the holding will apply even to state habeas petitioners (like

Farmer) whose convictions were final before the decision in

question. Yates v. Aiken, 484 U.S. , 98 L.Ed.2d 546, 108

S.Ct. 534 (1988).

Booth did not announce a new ruie at all: it merely

involved the application of existing principles to the particular

facts presented in that case. In holding victim impact

information inadmissible in a capital sentencing proceeding, the

Court relied on the “well-settled” principle that the sentencing

body's discretion must be “suitably directed and limited so as to

minimize the risk of wholly arbitrary and capricious action."

Booth 96 L.Ed.2d at 448, guoting Gregg v. Georgia, 428 U.S. 153,

189 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).

Further, this Court relied on its more specific holding that the

sentencing body must make an “individualized determination” of

whether to impose death on the defendant based on "the character

of the individual and the circumstances of the crime.” Id.,

guoting Zant v. Stephens, supra (emphasis in original). In

Booth, this Court merely decided, for the reasons stated in that

opinion, that the principle announced in Gregg and amplified in

Zant and other cases prohibits the use of victim impact

information in a capital sentencing proceeding. These principles

were established well before Farmer's trial and conviction in

1984. Thus, Booth was not a novel holding and no "real question"

of retroactivity is raised. Johnson, 472 U.S. at 549. Asa

matter of course, the result reached in Booth is the result to be

reached in all cases, even those where the convictions were final

at the time Booth was decided.

B. Assuming Arguendo That Booth v. Maryland Did

Announce A New Rule, Then It Should Still Be

Fully Retroactive.

Even assuming that Booth did announce a new rule

raising a "real question" of retroactivity, Booth should still

apply retroactively to cases like Farmer's, where the death

sentence was affirmed on direct appeal before the date Booth was

decided.

The methodology «to be used to decide the retroactive

application of a new holding to such cases is unclear.

Traditionally, this Court has used a three-pronged analysis

-13-

ot

derived from Linkletter v. Walker, 381 U.S. 618 (1965) to decide

the scope of a holding's retroactivity In the very recent past,

individual Members of this Court have dad adoption of an

approach, identified with Justice Harlan, in lieu of the

Linkletter test. E.g., Griffith v. Kentucky, 93 L.Ed.2d at 662

(Powell, J., concurring). Last term, this Court left undecided

the question of which of these two approaches is the appropriate

one for deciding whether to apply a new holding to collateral

attacks on already final criminal convictions. See Yates v.

Aiken, 98 L.Ed.2d at 553.

Virtually every criminal law decision of this Court

raises a question regarding the extent of its retroactive

application. The Court has resolved this problem in part by

adopting a “bright line” rule that makes new holdings retroactive

in all cases pending on direct appeal. Griffith v. Kentucky,

93 L.Ed.2d. at 661. The motivating force behind this decision

was, apparently, the desire to avoid the troublesome and often

inquitable case-by-case approach of Linkletter. Id. at 658-659

and 661. With reference to applying a new decision to pending

habeas corpus cases, however, this Court has not resolved whether

to adhere to the Linkletter approach or to adopt "Justice

Harlan's theory.” Yates, 98 L.Ed.2d. at 553.

One of the important issues to be addressed in briefs

-14-

on the merits in this case would, therefore, be which of these

approaches should be used to determine the retroactivity of

Booth's application to a previously final conviction. See also

Teague v. Lane, U.S. , 108 S.Ct.1106 (1988) (granting

certiorari in case presenting question of retroactive application

to case pending on collateral review).

The Linkletter approach would militate in favor of

giving Booth full retroactive effect. Under that approach, this

Court would determine the scope of a new decision's retroactivity

by "weigh[ing] the merits and demerits in each case."

Linkletter, 381 U.S. at 629. Specifically, the Court evaluates

these three factors: "(a) the purpose to be served by the new

standards, (b) the extent of the reliance by law enforcement

authorities on the old standards, and (c) the effect on the

administration of justice of a retroactive application of the new

standards." Allen v. Hardy, 478 U.S. 255, 258 (1986) (preliminary

print). The first one, the purpose to be served by the new

constitutional rule, is the most important of the three. Desist

v. United States, 394 U.S. 244, 249 (1969). Thus, "[c]omplete

retroactive effect is most appropriate where a new constitutional

principle is designed to enhance the accuracy of criminal

trials." Solem v. Stumes, 465 U.S. 638, 643 (1984).

If this Court grants the requested writ, the parties in

o1S-<

this case as well as any amici can address each of the three

factors in detail. Preliminarily, Farmer contends that the first

factor would be particularly weighty here and, indeed, decisive

in favor of Booth's full retroactive application.

The purpose of the rule in Booth is to “enhance the

accuracy of criminal trials." See Solem, 465 U.S. at 643. More

specifically, Booth is designed to prevent arbitrary and

capricious imposition of the death penalty, that is, it is

designed to help prevent the ultimate penalty from being imposed

in violation of the eighth amendment. Death is a “punishment

different from all other sanctions." Woodson v. North Carolina,

428 U.S. 280, 303-304 (1976) (plurality opinion of Stewart,

Powell, and Stevens, JJ.). If a sentence of death is wrongly

imposed and executed, there is no remedy. It is therefore

critical that capital sentencing decisions be accompanied by the

highest safeguards to prevent an inappropriate sentence of death.

Given the paramount importance of the first Linkletter factor in

capital cases, the balance should tip in favor of giving Booth

full retroactive application.

Witherspoon v. Illinois, 391 U.S. 510 (1968) is

instructive on this point. There, this Court held that "a

sentence of death cannot be carried out if the jury that imposed

or recommended it was chosen by excluding veniremen for cause

simply because they voiced general objections to the death

-16-

penalty ... .” 391 U.S. at 522. Using the Linkletter

approach, this Court indicated its holding was to be given "fully

retroactive application." 391 U.S. at 523 n.22. The Court

reasoned that, notwithstanding the second and third Linkletter

factors, the forbidden jury selection practice "necessarily

undermined ‘the very integrity of the . . . process' that decided

the petitioner's fate . ..." Id. Similarly, introduction of

victim impact information necessarily undermined the integrity of

the process that decided Farmer's fate. Booth, 96 L.Ed.2d. at

448. Consistent with Witherspoon, Booth should be given complete

retroactive application under the Linkletter test.

Even were this Court to reject the Linkletter approach,

Booth should still apply retroactively to Farmer's case. At this

point in the development of retroactivity case law, the major

alternative approach to Linkletter is "Justice Harlan's theory."

See Yates, 98 L.Ed.2d. at 553. Under this approach, the general

rule is that a “newly-announced constitutional rule should not be

applied retroactively to cases pending on collateral review."

Id. Assuming arguendo that Booth announced a novel holding,

Farmer would be precluded from invoking Booth under Justice

Harlan's general rule because his case is pending on collateral

review rather than on direct appeal.

The general rule does admit of exceptions, however.

One exception is where the holding is “implicit in the concept of

ele

ordered liberty.” Yates, 98 L.Ed.2d. at 553. A new holding

within this exception will be given full retroactive effect

because fundamental fairness so requires. Solem v. Stumes, 465

U.S. at 653, esp. n.4 (Powell, J., concurring).

Fundamental fairness requires the full retroactive

application of the rule of Booth. At the foundation of any

civilized legal system is the tenet that similarly situated

persons should be treated alike. If Booth is not given full

retroactive effect, then a legally-drawn line divides persons

sentenced to death based on victim impact information. On one

side of that line would be the persons whose convictions were not

final when Booth was announced. These persons could claim

Booth's protection. On the other side of the line are those

whose convictions, like Farmer's, were final before the date

Booth was decided. Refusing to give Booth full retroactive

effect would deny this latter group Booth's protection - and it

would deny that protection, letting them be executed, for no

reason other than the fact that their convictions were final

before Booth was decided. The underlying constitutional problem

with using victim impact information remains the same, regardless

of the date on which a capital defendant's conviction became

final: a death sentence, regardless of the date of its entry or

the date on which it became final, remains infected with

"constitutionally unacceptable" error if it was based om victim

-18-

impact information. Booth, 96 L.Ed.2d. at 448.

If Booth announced a merely procedural rule having only

"some impact” on the truth finding process in capital litigation,

denying its benefit to persons based on the date their

convictions became final would be constitutionally acceptable and

less morally troublesome. See Allen v. Hardy, 92 L.Ed.2d at 205.

Because Booth has a “fundamental impact" on the integrity of

capital sentencing decisions, however, retroactive application is

appropriate. Id.

IV. THE NI ’ADA COURT'S DECISION DID NOT REST ON AN ADEQUATE OF

INDEPENDENT STATE GROUND.

In opposing review by certiorari, Respondent will

undoubtedly argue that the Nevada Supreme Court's decision rested

on an “adequate and independent state ground" and that,

therefore, this Court lacks jurisdiction to review that decision.

See Michigan v. Long, 463 U.S. 1032 (1983). That argument should

be rejected.

In its written decision, the Nevada Supreme Court

addressed Farmer's claim under Booth v. Maryland and refused to

apply it to Farmer “absent direction from the high court” that

Booth applies retroactively. On the face of the opinion, the

sta*« ~ourt declined to apply the constitutional doctrine of

Booth and in effect held it non-retroactive to convictions final

“before Booth was decided. Order Dismissing Appeal at 2-3

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(reproduced in appendix). The question of Booth's retroactive

application is itself a federal question; and, in declining to

apply Booth, the only precedent relied on by the Nevada Supreme

Court was a federal one. Id. at 3, citing Solem v. Stumes,

Supra. The decision of that court turned on a question of

federal law, and this Court has jurisdiction to review it.

Admittedly, however, the Nevada Supreme Court's written

decision does suggest that the court might have also believed

that Farmer's claim under Booth was barred by a state “procedural

default." Order Dismissing Appeal at 2 (reproduced in appendix).

That possible default apparently consists of the fact that Farmer

Gid not raise the Booth issue at his original penalty hearing but

raised it for the first time on appeal from the denial of his

State habeas petition. Id.

Despite the arguable availability of a state ground for

its decision, the Nevada Supreme Court proceeded to address the

Booth issue. One possible explanation is that the court might

have overlooked the arguable default if it had agreed with Farmer

on the merits of the Booth issue. The Nevada Supreme Court has

discretion to allow an issue to be raised for the first time on

appeal. McCullogh v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158

(1983). And, Nevada courts generally have discretion to relieve

a petitioner in collateral proceedings of a procedural default so

that he or she can raise an otherwise barred claim. See, e.g.,

Warden v. Lischko, 90 Nev. 221, 222-223, 523 P.2d 6, 7 (1974),

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cathe

One of the considerations influencing a Nevada court to allow a

petitioner to raise an otherwise procedurally defaulted claim is

whether the claim is constitutional in nature. McCullogh, 90

Nev. at 222-223, 523 P.2d at 7; Rogers v. Warden, 86 Nev. 359,

362, 468 P.2d 993, 994 (1970). It is possible, therefore, that

the Nevada Supreme Court's holding on the federal claim under

Booth influenced its view of the state question of procedural

default. Had the court resolved the federal issue regarding

Booth's retroactivity in Farmer's favor, it might have exercised

its discretion to consider the claim notwithstanding the arguable

default. Under this view, the procedural default issue would be

intertwined with the question of Booth's retroactivity.

In any event, this Court need, not resolve the

troublesome issue whether the decision below rested on a state or

federal ground. The Nevada Supreme Court discussed both the

state issue of procedural default and the federal issue of

Booth's retroactivity. In this instance, the Court's

jurisdiction is presumed:

The mere existence of a basis for

a state procedural bar does not deprive

this Court of jurisdiction; the state

court must actually have relied on the

procedural bar as an independent basis

for its disposition of the case. More-

over, we will not assume that a state-

court decision rests on adequate and

independent state grounds when the

"state court decision fairly appears to

rest primarily on federal law, or to be

interwoven with the federal law, and

when the adequacy and independence of

any possible state law ground is not

clear from the face of the opinion.

Caldwell v. Mississippi, 472 U.S. 320, 327 (1985) (authorities

omitted). This Court has jurisdiction to review the Nevada

Supreme Court's decision.

CONCLUSION

For the above reasons, petitioner Farmer asks that the

petition for a writ of certiorari be granted and this matter set

for briefing on the merits.

RESPECTFULLY SUBMITTED,

TERRI STEIK ROESER

Nevada State Public De

puty Public Defender

308 N. Curry, Room 200

Carson City, Nevada 89710

Phone: (702) 885-4880

*Counsel of Record

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