Petrocelli v. Baker, No. 14-99006 (9th Cir. 2017)
Annotate this Case
The Ninth Circuit filed an amended majority opinion and concurrence, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc in petitioner's appeal from the denial of his pre-AEDPA habeas corpus petition.
The panel affirmed the district court's denial of the writ with respect to petitioner's conviction; reversed with respect to petitioner's death sentence; and held that admission of Dr. Lynn Gerow's psychiatric testimony during the penalty phase violated petitioner's Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454 (1981), and that the violation had a substantial and injurious effect on the jury's decision to impose the death sentence. In this case, Gerow was acting at the request of the prosecutor when he went to visit petitioner in jail to determine petitioner's competency to stand trial, Gerow failed to give petitioner his Miranda warnings, and Gerow did not seek or obtain permission from defense counsel to visit or evaluate petitioner.
Court Description: Habeas Corpus / Death Penalty. The panel filed an amended majority opinion and concurrence, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc, in Tracy Petrocelli’s appeal from the denial of his pre-AEDPA habeas corpus petition challenging his Nevada state conviction and capital sentence for robbery and first-degree murder. In the amended opinion, the panel affirmed the district court’s denial of the petition with respect to the conviction, reversed the denial of the petition with respect to the death sentence, and remanded. The panel held that because Petrocelli failed to invoke his right to counsel unambiguously, his April 19 interrogation was not conducted in violation of Miranda v. Arizona, 384 U.S. 436 (1966), or Edwards v. Arizona, 451 U.S. 477 (1981), and trial counsel was therefore not ineffective in failing to move to suppress testimony as fruit of the interrogation. The panel rejected Petrocelli’s contention that use at trial of his statements to detectives on April 20 and 27 violated his Fifth, Sixth, and Fourteenth Amendment rights. Because the State used the statements only for impeachment, the panel rejected Petrocelli’s contention that his Fifth and Sixth Amendment rights were violated by the taking of his PETROCELLI V. BAKER 3 statements during interrogations at which his appointed counsel was not present. The panel rejected the defendant’s contention that his statements were involuntary. The panel affirmed the district court’s conclusion that Petrocelli failed to exhaust his challenge to the jury instruction defining premeditation and deliberation. The panel held that the State waived any defense to Petrocelli’s contention that the admission of psychiatric testimony during the penalty phase violated his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454 (1981). The panel held that even if the State had not waived its defense, admission of the testimony violated Estelle, where the psychiatrist, acting at the request of the prosecutor, visited Petrocelli in jail to determine his competency to stand trial, failed to provide Miranda warnings, did not seek or obtain permission from Petrocelli’s appointed counsel to visit or evaluate him, and testified that Petrocelli was dangerous and incurable. The panel concluded that the error was not harmless. Concurring, Judge Christen wrote separately because, in her view, even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief.
This opinion or order relates to an opinion or order originally issued on July 5, 2017.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.