# Opposition Brief — McDaniel v. Gallego

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1343%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 922

## Text

MAY
NO. 97-1632

Clerk

> 1998

In the
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

E.K. McDANIEL, Warden, Ely State Prison; ROBERT
BAYER, Director, Nevada Department of Prisons;
FRANKIE SUE DEL PAPA, Attorney General
of the State of Nevada

Cross-Petitioners,

¥.

GERALD ARMOND GALLEGO,

Cross-Respondent,

BRIEF OF CROSS-RESPONDENT IN OPPOSITION TO THE
CONDITIONAL CROSS-PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
NINTH CIRCUIT

LAW OFFICE OF RICHARD F. CORNELL
150 RIDGE ST., SECOND FLOOR
RENO, NEVADA 89501
702/329-1141
Counsel for Cross-Respondent
Per 21 U.S.C. § 848q(9)

sem -omat

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

' of

NO. 97-1632

In the
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

E.K. McDANIEL, Warden. Ely State Prison; ROBERT
BAYER, Director, Nevada Department of Prisons:
FRANKIE SUE DEL PAPA. Attorney General
of the State of Nevada

Cross-Petitioners,

=

GERALD ARMOND GALLEGO.

Cross-Respondent,

BRIEF OF CROSS-RESPONDENT IN OPPOSITION TO THE
CONDITIONAL CROSS-PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
NINTH CIRCUIT

LAW OFFICE OF RICHARD F. CORNELL
150 RIDGE ST., SECOND FLOOR
RENO, NEVADA 89501
702/329-1141
Counsel for Cross-Respondent
Per 21 U.S.C. § 848q(9)

RICHARD F. CORNELL, Esq.

150 Ridge St., Secoud Fleer, Ru

telephone (702) 329-1141 Facsimile |

0, Nevada 89501

702) 329-7651

b-mail/rcornlS0@aol.com

tu

I. QUESTIONS PRESENTED FOR REVIEW

I.

IV.

V.

A.

VIL.

TABLE OF CONTENTS

OPINIONS AND JUDGMENTS BELOW 2

JURISDICTIONAL STATEMENT/CONSTITUTIONAL AND STATUTORY

Kutt as Le 5. | RAS yes amare ease Sar ae aire trary rea a at 2
eee A SORE MR OMUNEE SS eS e 'e a 'e pp a ark dee ka a a ee as 2
eer: WAPUR ROEES CREED COUER WEMRC En 5 ka eds a ewes ee ole wl z
SE MUCAEURI IMU 2 Sao c 2k Sete oh ek ag fa, a We Oe a OR ge eee ews 2
i: A COMPARISON OF HOW CONDITIONAL CROSS-

PETITIONERS RAISE THE QUESTIONS PRESENTED
FOR REVIEW AGAINST HOW THEY PRESENTED
THE ISSUES TO THE UNITED STATES COURT

Ce Pare etka TAP Fates PORTE UEE GEMCUTE 6 a5 6 Ge ee ees 2
2. A BRIEF OVERVIEW OF NEVADA'S STATUTORY
PPL REe F CATIEL TT 0 GEES oe ae ew ae 5

B. A REVIEWING FEDERAL COURT SHOULD NEVER BE REQUIRED
TO CONDUCT A HARMLESS ERROR ANALYSIS UPON
FINDING THAT AN EXECUTIVE CLEMENCY
INSTRUCTION TO A NEVADA JURY IS
SEPP USNR EPO NOIRE bil Os a ee ee ee OR ae

C. THIS COURT SHOULD NOT GRANT CERTIORARI ON
_ CONDITIONAL CROSS-PETITIONER’S ASSERTION
THAT THE COURT OF APPEALS INCORRECTLY DETERMINED
THAT THE EXECUTIVE CLEMENCY INSTRUCTION GIVEN
HEREIN VIOLATED THE EIGHTH AMENDMENT ............ 12

Can agra Sa Na ie a aie gs te gillg alige pha Na laa lake 15

RICHARD F. CORNELL, Esq.
150 Ridge St.. Second Floor, Reno, Nevada 89501

lelephone (702) 329-1141 Facsunile (702) 329-7051

E-mail/rcornl 50@aol.com

tw

TABLE OF AUTHORITIES

Auer v. Robbins.
U wey See ee ee

Wn

1738-41,

Bean v. State,

Ee
gi @ re Me Bp ae. ts Saeeneencn ean pent

Gi Nev. 23, 236, 396 Pia £04. Zot CE os es ee ie eee ee 13

Bennett v. State,
106 Nev. 135, 144, 787 P.2d 797, 803,

cert. denied, 498 U.S. 925 (1990) .....

Boulden v. Holman,
394 U.S. 478, 89 S.Ct. 1138,

oa 4.0. A SAS LI oS Ek ES Se

Brecht v. Abrahamson,

adE Ue RR AAPOR og ow ie woe Ro

Caldwell v. Mississippi,

472 U.S. 320, 342. 105 S.Ct. 2633, 2646,
OG 6. Ge. gO. ESE RA eee eae wa

Canape v. State,
109 Nev. 864, 859 P.2d 1023 (1993),

cert. denied, 115 S.Ct. 176 (1994) ....

Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691, 697-98, 104 S.Ct. 2694.

2699. 81 L.fd. 2d 380 (1964) . 2...

Clemons v. Mississippi,

ath ee i Ree are eae ee

Eddings v. Oklahoma,
455 U.S. 104, 102 S.Ct. 869,

FA nell Sees & LAD cd ee ee CS

Franklin v. Lynaugh,

487 U.S. 164, 184, 108 S.Ct. 2320, 2333,
Mek Socks de $00 (EP Med

1i

RICHARD F. CORNELL, Esq.
b-mail/ coral S0@aol.com

150 Ridge St., Second Floor, Reno, Nevada 89501

felephone (702) 329-1141 Facsimile (702) 329-7651

Gallego v. State,
LOL Nev. 782, 711 P.2d 856 (1985),

ue TW Na OTE RNOD yo0ou Liane ee irl eer ne 9, 12, 14
Gardner v. Florida.

RU EMUROD FO pie trad fee ge. 5 Mie eM cote os Wy one ltear Bi nd Mestad ty |3
Geary v. State,

Pie ees Seer Fae Pee FPP ANOOD, fre i gan ee Eee iT, a2

Hamilton v. Vasquez,
17 F.3d 1149.1161-64 (9th Cir.),
ai Gomied cee mae, S12 .S. 1220 (IGA) nc ce cc en : ie

Hoover v. Ronwin,
466 U.S. 558. 574. n. 25, 104 S.Ct. 1989, 1998 n. 25.
80 L.Ed 2d 590 (1984),

Ses re 00k, LEU CANO ke 8 ew he Sk he bck ele ce 4
Jones v. State,
a Pes Cae TE Eee MI AIOOEE, 5 iin's oR eke ee bee es Ll, 12. 14
Jurak v. Texas,
RUN As RI oS Bia eos Ga Wie Fe ee ee eg ee ee 13
See: OU Ah as. OUR RIN o's Nore Sky coke ale ei ee 8

McCleskey v. Kemp.
481 U.S. 279, 304... (1987)
cis Mdesciapictie wlio myc EO A aT aI er PI OP DD eee AA elt ie 7

Gallego v. McDaniel,
Eee Wine RU I a A i tly EN boy Rte ee De 2, 4, 12-14

Morgan v. Illinois,
$09 U.S.719, 112 S.Ct. 2222, 2235,
Beh Se A Eo Tei ag ORE EAD iil ear icy ae eee Be EL a A eer Sp) 9 10

O'Dell v.N land,

aa ee
FAR Ra RON sa a ep aes tee Miers ak ea 13, 14

iii

Cc Fe N Dn ee we Ne =

b-mail/reorn| W@ael.com

RICHARD F. CORNELL, Esq.
150 Ridge St., Second Fleer, Rene, Nevada 89501

telephoae (702) 329-1141 Facsumile (702) 329-7651

492 U.S. 302, 109 $.Ct. 2934,

OE es Oe PROD 6 ES Wh dia ndcb ok GA hicta Re ah eles army I a

Petrocelli v. State,

Pee Rs te eta g MEE Sa Ps PETE COE Fle vp ead os wince we ale wi

Ramos v. California,
463 U.S. 992 (1983)

Rogers v. State,
LOL Nev. 457, 705 P.2d 664 (1985),

ae ee i ee, ee oe oe ee ee oo a ee ee a a oe a oe a ee a ok oe ee oe an oe oe ey Gee fie ee

er NE, PNP AIO USNR RUUD on hob va a gic aha Neal a eG cas SES ee

Simmons v. South Carolina,

Dee OR ed ay te hoe Gg ce ee EL ON RE aD

Sochor v. Florida,
504 U.S. 527, 539-40, 112 S.Ct. 2114, 2123.

RUE ieee ein IED foi ern gl ose Are ae a eek ube ec wera kale eae po ae Te

Summers v. State,

Fea Oe ee, TORE. ee CO REO VE )

5
a «

‘sa

ited States ( OnStItULION

~ QNIEFCTIONC prre
& » ane ee rREioO

TED FOR REVIEW

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II. OPINIONS AND JUDGMENTS BELOW

, * ‘ , io
= _ - af car “aw eh a | eh “NY dition rr ee
aiid pF ac ALALOSL Soer LOrctcn in ~11e CiOoOnal -LUSS
a Fm ~ba Armond >. } mle Der rf 4 Y
StC.ta0 BL S 2 s@raia Armone saiiegGo S$ recition 13

III. JURISDICTIONAL STATEMENT /CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

I iditi ro. «the authority set forth by the Conditi ]
Tross-petitioners, Nevada Revised Statutes, Sections 2
20
4

lecessarily

tC @i3

y
4

lea

torney general a

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issue

rill

south Carolina, 512 U.S. 154 (1994), and that Simmon constituted
a “new rule" for purposes of Teague v. Lane, 489 U.S. 288 (1989
However in fairness, the court below did pass on that issue, even
though t raised in the brief See > ba® #36 AE GF
It is fundamental that this Court does not consider issues not
raised or inadequately preserved in the briefs to the court below,

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rehearing denied, 476 U.S. 1268 (1984); United States v. Ortiz, 422
u.S. 891, 895 93 &.Ct. 2585, 2599, 45 4.84: 24 623 {1975).; Auer v.
Pe, wt bd? SCC. L735, 1738-44, 128 L.A. 26. 352 (1997) :
citie rable, Inc. v. Crisp, 467 U.S. 691, 697-98, 104 S.Ct
2694, 2 S51 L.Ed. 2a 58 1984)

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shoulda not even Onsider Conditional Cross-petitioner’s first and
‘

Main issue presented, because not only was it inadequately raised

(at bes > he. court below, but the court below -— quite

understandably — did not even consider it at Gallego, 124 F.3d at
1074-765. Simply put, assu*iing arguendo that there is some viability
Co tne proposition that a federal appellate court can doa '"

i. on en pet HAPS psee F = trast hua? ' ¢ ee. 7 ho Ninth
Slt. review of a "deathworthy' issue, how can one blame the Nint

~-ircuit tor not engaging in such a "harmless error analysis" when

they were not specifically asked to do so relative to this issue?
Petitioners’ would suffer from the same problem,

insofar as their is concerned. However, the Ninth

Circui lid them the favor of raising the issue for them, and

reviewed.

e

of merit.

devoid

=> | J
elow

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SCHEME

Leal
4

‘S STATUTORY DEATH PENAL

A_ BRIEF OVERVIEW OF NEVADA

2.

Pees
derst

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Ahs

"aw,

Fairing
UU

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nowhere aa] + ed a KT “4 > 0) y
4 die de uc y + © aa IWNeLIZ — ment s yn ¢ d& 4s iV INO av }
ces + eae . me pce ! ; Tey
evel IRS 175.552 (3 Ex F provides that, at a penal
‘ - 2 ~ - - - “—~ar-
iri idence iy be presented oncerning aggravating and
- - )
- . “- - he - ~ a _
nitiga 1rcum stances relative tothe offense, defendant or victin

and on any other matter which the court deems relevant to the sentence

whether or not the evidence 1s ordinarily admissible. Thus, pursuant

to that statute, evidence regarding "executive clemency" is admissible
sn F y 1 a > = ox * - ae | De “met ¢
luring penalty phase of a Nevada capital murder trial. Petrocelli

1, , ‘ 1 whe tne s Ceimwre , ~ wr 7) 77 4 (7 - ar . = o
Thus, as the Nevada Supreme Court explained in Canape v. State,

{100A } “Away -“Anmastnsa ~ Fr ; ; _ oc : af yr + =sanroc
(1994), the court considers aggravating and mitigating circumstances

determining whether a capital defendant is death-eligible. See:

Canape, 109 Nev. at 877-83, 859 P.2d at 1031-35 However the

“ + — KT ~ : 7 ~ 1 wit}
"“weignin t goes on with a Nevada capital jury is only with respect
to the th-eligibility process; matters such as character evidence

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ER 34: 247-48; ER 36: 619; ER 33

101; ER 640-46; ER 36: 595; ER 35: 433, 437; and ER 36: 708
In Nevada, the "penalty jury" is the same 12 people as the "guilt

phase jury," and 1s picked at the beginning of the trial. NRS

175.552(1)'; 175.021. Pursuant to Morgan v. Illinois, 509 U.S.719,
112 S.Ct. 2222, 2235, 119 L.Ed. 2d 492 (1992), it was constitutional
error to all jurors to sit who were not inclined from the get-go
to retur > of the three available penalty verdicts. Although Morgan

was decided in 1992, Morgan is not a "new rule" to this case because

citing Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), this Court

Simun 394 9.5.. 470,: 88.6 .Ce. 4338; 22 Ue

2d 443 (1969) that prospective jurors must be willing to consider
all of the penalties provided by state law and that they may not be
irrevocably committed before the trial has begun to reject any one.

Boulden, 394 U.S. at 482-83, 89 S.Ct. at 1140. However, this jury

had over half of its members committed to returning either verdicts

of death or life without the possibility of parole, only, from the

jet-go The executive clemency instructions herein told this jury
tnat if it returned a verdict of life without the possibility of

bay
»

parole, such a judgment could be commuted by the Pardons’ Board,

ich a commutee could thereby be paroled and on the streets within

67)
pe
» ° 7 a e&easra Dliar FH ma srmlbartse
but, at 1S actuall che more appiicaD
=
na » 721] nredatres lleao’s CONnV1icty
Ana A? F* Drecadales yasa st TMU ~~ o Victi
‘=> }
: : m a
phate maertrayr mane wAare am +} vad Cr:
nat AC Cer, lany ears ago 1e@ Nevada ou
nroce 7) Ars a) YQ arr
jepe oc A Ji, 20d regqarc
t 3
.
opaneens > £40 22 aaa ete — nA rAnAY en
execucive Lemency, are not per so
*. r) " - Tn
nA}, = Daan «tr >} ra 4 XT,
na n 5b@an V. state, i NE
are sare ™ . >
. mmnNnoarc °F 7 ra -~ b
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po 4&1 F709 3 ; DULULE LS . otat ’ :
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And nie Ninth obh we &
oa ~ oe ehar 1s e¢¢ 17 — 2 hh
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rANI ST ap -}h | Criinromo
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- - mae) Inna a a nk oe .* -,
OL a MiSilieaagaindg semency instr

} satin
nandin

improper

. ate e art
7 oncale ee ™ Wie
enalty jury will erroneously believe

2 sh aii: ial i , ee “

ik f i ild |

wital fF [a i a ©: iM yYsi m1 iY ina xMuaisy is
“ae Sa ag Ane " ae oad iin
=“ . ie SEEN cea aaa
DO. > .~ cw . S Ts a . ‘ | ¥ a & P
cne Ai ent “ t tnat ( IME rz I was
tional. err I wa nitteda

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use sucn a sentence might be commuted and the defendan
t be released into society. Jones, 101 Nev. at 579-81

: we Say "“lronically," because NRS 213.1099 was i
sallego was decided, yet the Nevada Supreme Court

~ either that statute or Jones in its opinion

f is the reason that prosecutors seek to have "executive
ructions given; and equally as obviously, they n’t
em given so that the jury can ignore them and not think
may mean. And, in this case, what with over half

ted being in favor of no possibility of any rel
i first degree

jree murderer ever occurrin

uction given, and why the defense c

issue out of it Yo ignore this point ist 11
e reality of the situation

regoing reasons, if this Court should grant
ion for Writ of Certiorari in Case No. 97-8160

vertheless deny the Respondents and Conditio

.
—
sida

naer

Mse\sT a

w that that is exactly why this prose

pa!
oo)

: seBe F wien ms a fittest ¢
LAW OFFICES OF RICHARD FE CORNELL
a fae a oe
Ridge street
es a inne apa
Reno, Nevada 89501

tm
—™

Oorney for Petitioner and
onditional Cross-respondent

se ee ee

>

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 96-99006
D.C. No. CV-N-93-631-HDM
(Nevada, Reno)

GERALD ARMOND GALLEGO,
Petitioner-Appellant.
vs.

E. K. MCDANIEL, et al.,

Respondents~Appellees.

Appeal from the United States District Court
for the District of Nevada

ANSWERING BRIEF OF APPELLEES

RICHARD F. CORNELL, ESQ. FRANKIE SUE DEL PAPA

150 Ridge Street, 2nd Floor Attorney General

Reno, Nevada 89501 ROBERT E. WIELAND

Deputy Attorney General

Criminal Justice Division
Heroes’ Memorial Building
Capitol Complex

Carson City, Nevada 89710

ATTORNEY FOR PETITIONER- ATTORNEY FOR RESPONDENTS-
APPELLANT. ; APPELLEES.

At trial, GALLEGO did not show good cause in support of his:

| :
| / f
|
|

|
motion to continue his trial. As a result, there was not an abuse)

tl

we

, of discretion for the failure to grant his motion for continuance,

4 , nor was there a violation of due process. However, should this.
5 | court determine that the trial court abused its discretion, this
a error does not rise to the level of a federal due process error)
7 | because his trial was not arbitrary or fundamentally unfair vt
8 GALLEGO pointed to no witnesses below who, but for time
9 | limitations prior to and during trial, could have been produced.
10 | G. The Federal District Correctly Denied Federal Habeas Relief,

On The Claim Presented In Ground Ten Of The Instant Federal.

12 Petition.
13 | GALLEGO alleged in ground ten that:
14 | The trial court denied petitioner a fair
| penalty hearing and due process of law by
15 | instructing the jury at the penalty hearing
that executive clemency was available to a
16 person sentenced to life without possibility
I of parole.
17 |
18 | At the penalty phase of GALLEGO’s trial, the jury received
19 the following instructions:
20 . Instruction No. 5, in its entirety, states:
| ; The punishment of death may be imposed
only if one or more of the aggravating
2? circumstances are found and any mitigating
| circumstance or circumstances which are found
3 do not outweigh the aggravating circumstance
or circumstances.
24
Otherwise, the punishment imposed shall
25 be imprisonment in the state prison for life
with or without the possibility of parole.
26 ,
You are instructed that the sentence of
7 life imprisonment without the possibility of
parole does not exclude executive clemency.
28 :
aco: 84
NE bans

/ la

or creates the risk that the death penalty would be imposed

| despite evidence which may call for a life sentence," it violates

the eighth amendment. Id. (citations omitted). In Hamilton, the

Ninth Circuit found constitutional error in a lengthy instruction

'on commutation that was designed to correct a misleading

| instruction which was given concurrently. The court found the

| combination of instructions to be unacceptable because they were

confusing and forced the jury to speculate on the likelihood of|
commutation. Id. at 1163. GALLEGO did not argue below that the
executive clemency instruction given to the jury at the sentencing
phase of his trial misstated the law. Rather, he contended that
it was misleading because it failed to adequately and accurately)
explain how semote the possibility of parole would be in his case. |
CR 36 at 79-80. In Nevada, the parole board (as distinguished|
from the pardons board) may not release a prisoner who has his

life sentence commuted to include the possibility of parole

unless,

it finds that the prisoner has served at
least 20 consecutive years in the _ state
prison, is not under an order that he be
detained to answer for a crime or violation
of parole or probation in another
jurisdiction, and that he has no history of:

(a) Recent misconduct in the
institution, and that he has been recommended
for parole by the director of the department
of prisons;

(b) Repetitive criminal conduct;

(c) Criminal conduct related to the use
of alcohol or drugs;

(d) Repetitive sexual deviance,
violence or aggression; or

86

to

r

(e) Failure in parole, probation, work

release or similar programs.
NRS 213.1099-4 (provision enacted 1981 Nev. Stat. 873).
Although the Penalty Instruction No. 6 failed to explain the

intricate limitations on the parole of a prisoner with a commuted

' sentence, it was not so inaccurate or misleading that this court

finds it reasonably likely that the jury failed to consider

relevant mitigating factors. Each statement in the instructions

accurately stated the law. An instruction which contains all of

| the factors relevant to clemency and parole runs the risk of

unduly focusing the jury’s attention on those issues, thereby

encouraging the jurors to speculate on the likelihood that the

| defendant’s sentence would be commuted. And where a clemency

| instruction is allowed to inform the jury that a sentence of life

| without the possibility of parole is subject to executive

| clemency, brevity is valued. See generally Hamilton, 17 F.3d at

1160, 1162, 1163 (repeatedly noting the "two-sentence instruction"

| approved in California v. Ramos, 463 U.S. 992 (1983)).

Hamilton is distinguishable from this case. In that case,

the instruction at issue began with the two-sentence clemency)

| instruction approved by the United States Supreme Court in Ramos.

i}

|
1]
|
|

Hamilton, 17 F.3d at 1161-62. However, the instruction went on to

partially discuss a limitation on the commutation power for twice-
convicted felons. It also inaccurately suggested that the
imposition of any life sentence would cause Hamilton to be
eligible for parole in less than seventeen years. Id. Further, |
the disapproved instruction cautioned the jury not to speculate on

the likelihood that Hamilton would be pardoned or paroled. Id.

87

wa

~~

r

On these facts, the court found that the "jury .. . was diverted

from (the task of considering relevant mitigating evidence] by

‘having its attention focused on commutation procedures rather than

the significant mitigating evidence defense counsel introduced at

| the penalty phase." Id. at 1163.

Although Penalty Instruction No. 6 did discuss the.
composition of the Nevada State Board of Pardon Commissioners and_|
that a sentence can be changed cnly by a majority of the Pardons
Board which must include the governor, it did not urge the jury to
speculate on the possible votes. Neither did the instruction
inaccurately suggest that any life sentence would automatically
lead to parole eligibility. |

In addition to the objectionable contert of the instruction, |
the Hamilton court found that "[t]he probability of the saree

improper speculation was compounded by the prosecutor’s

_inappropriate assertion in closing argument that Hamilton, if

| sentenced to prison, would be conniving and devising ways to

| manipulate the system and get out." 17 F.3d at 1162. In closing

| argument, the prosecution relied on “inflammatory and largely

irrelevant letters written by Hamilton" to support its contention.
Id. The prosecutor in GALLEGO’s trial did not engage in such
conduct.

GALLEGO contends that Instruction No. 5 was inaccurate
because it stated that if the punishment is fixed at life
imprisonment with the possibility of parole, eligibility for
parole begins when a minimum of ten years has been served. |
GALLEGO- states that it is inaccurate because NRS 213.1099-4)

requires that GALLEGO serve @ minimum of 20 years. GALLEGO’ s|

88

C

statement is false and a deliberate attempt to mislead this Court.
Had the jury imposed a sentence of life with the possibility of!

parole as stated by the instruction, GALLEGO would have been

eligible for parole within ten years as stated by the instruction.

NRS 200.030, 1977 Statutes of Nevada 864. In his brief GALLEGO
has deliberately misinterpreted NRS 213.1099-4 to suggest that if]
the jury sentenced him to life with the possibility of parole, NRS|

nats |
213.1099-4 would apply and GALLEGO would have to serve 20 years)
before he was eligible for parole, contrary to the instruction.
That suggestion is false. NRS 213.1099-4 would apply only if
GALLEGO had been sentenced to life imprisonment without the
possibility of parole and the pardons board (as distinguished from
the parole board) and had commuted his sentence to a sentence’
allowing parole, i.e., life with the possibility of parole and the
parole board was going to consider parole.

H. The Federal District Court Correctly Denied Federal Habeas

Relief On His Claim Advanced In Ground Fourteen Of The Petition.

GALLEGO alleged in ground fourteen that:
Petitioner was deprived of [the]
effective assistance of counsel, in that
trial counsel failed to challenge the Wey
contingent, revocable plea bargain of the
alleged accomplice as violative of due
process of law.

Plea bargains are often contingent upon an agreement that the
beneficiary will testify against others. See United States v.
Moody, 778 F.2d 1380, 1385, amended 791 F.2d 707 (9th Cir. 1986).
Further, where a plea agreement requires the witness to testify

truthfully and completely, the agreement is not so coercive that

it violates due process simply because the benefit is contingent

89

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 9396-99006
D.C. No. CV-N-93-631-HDM
(Nevada, Reno)

GERALD ARMOND GALLEGO,
Petitioner-Appellant.
vs.

E. K. MCDANIEL, et al.,

Respondents-~Appellees.

Appeal from the United States District Court
for the District of Nevada

ANSWERING BRIEF OF APPELLEES

RICHARD F. CORNELL, ESQ. FRANKIE SUE DEL PAPA
150 Ridge Street, 2nd Floor Attorney General
Reno, Nevada 89501 ROBERT E. WIELAND

Deputy Attorney General
Criminal Justice Division
Heroes’ Memorial Building
Capitol Complex

Carson City, Nevada 89710

ATTORNEY FOR PETITIONER- ATTORNEY FOR RESPONDENTS~-
APPELLANT. APPELLEES.

C C

Cartwright, in light of the crimes and the nature of the crimes

and GALLEGO’s prior criminal record, would not have resulted ina
different sentence. Having failed to establish that presentation.
of such evidence probably would have resulted in a lesser
sentence, GALLEGO cannot establish that trial counsel was.
ineffective for failing to present such evidence, and, thus, |
cannot establish prejudice to overcome procedural default. The
federal district court properly found that ground 39 was”

procedurally barred.

M. If This Court Should Find Error, Such Error Is Harmless.

If this Court should find error, Respondents respectfully)

submit that any such error is harmless. Further, respondents.

|; submit that this court should apply the harmless-error standard

enunciated in Brecht v. Abrahamson, me , 333 Se. 5788!

(1993). In Brecht, the United States Supreme Court held that the

standard for determining whether habeas relief must be granted is |

| whether the Doyle error "had substantial and injurious effect or

influence in determining the jury’s verdict." If this Court.

| should find error, this Court should determine whether the error

| had a substantial and injurious effect or influence in determining

the jury’s verdict.

124

CRIMES AGAINST THE PERSON

200.035

aggravating circumstances sufficiently specific wo
render terms “torture.” “depravity of mind” and
“munlaton™” not unconsntnonally vague. Deut-
scher v. Whitey, 682 F. Supp. 1098 (D. Nev
1988)

Depravity instruction not equivalent to
insanity instruction and not constitutionally
improper. NRS 200.033 provides that first de
gree murder may be aggravated if jury finds that
murder involved torture, depravity of mind or
mutilanon of vicum. On pennon for wrt of ha
beas corpus, pehtioner contended that depravity
instruction unconsotunonally allowed jury to find
aggravating circumstance from fact that defendant
was unable to tell difference between mght and
wrong of to appreciate value of human life. Court
found that instructon was not equivalent to isan
ity instrucnon because msamity instrucnon requires
defendant w suffer from mental disease or defect
which prevented hum from understanding nght

NRS 200.035

Circumstances mitigating first degree murder.

and wrong. Depravity instrucnon merely requires
that there be condinon of mind that defendant
lacks moral sense and possesses evi or vile state
of mind. Therefore. there was no consttunonal
impropriety mM using petiponer's depraved state of
mind aS aggravating circumstance against him

Deutscher v. Whitley. 682 F. Supp. 1098 (D
Nev. 1988)
Jury instruction concerning aggravating

circumstance of depravity of mind was uncon-
stitutional. Jury instruction concerning aggravat
ing circumstance of depravity of mind see NRS
200.033) that failed to channel and lumu jury's
discrenon in imposing death penalty did not suffi
ciendy minimue msk of wholly arburary and
Capricious achon and was unconsntunhonal Deut
scher v. Whitley. 884 F.2d 1152 (Hh Cur 1989)
cited, Baal v State. 106 Nev 69. at 74. 787 P ld
391 (1990)

Murder of

the first degree may be mitigated by any of the following circumstances, even
though the mitigating circumstance is not sufficient to constitute a defense or re

duce the degree of the crime:

1. The defendant has no significant history of prior criminal activity
2. The murder was comunitted while the defendant was under the influence of

extreme mental or emotional disturbance

3. The victim was a participant in the defendant's criminal conduct or con

sented to the act.

4. The defendant was an accomplice in a murder committed by another person
and his participation in the murder was relatively minor
5S. The defendant acted under duress or under the domination of another per

son

6. The youth of the defendant at the time of the crime

7. Any other mitigating circumstance

(Added to NRS by 1977, 1543)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1343%3A2. Public record. Not legal advice.