549 F.3d 789 (9th Cir. 2008), 04-99004, Sechrest v. Ignacio

Docket Nº:04-99004.
Citation:549 F.3d 789
Party Name:Ricky David SECHREST, Petitioner-Appellant, v. John IGNACIO, Warden, Respondent-Appellee.
Case Date:December 05, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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549 F.3d 789 (9th Cir. 2008)

Ricky David SECHREST, Petitioner-Appellant,

v.

John IGNACIO, Warden, Respondent-Appellee.

No. 04-99004.

United States Court of Appeals, Ninth Circuit.

December 5, 2008

Argued and Submitted Feb. 15, 2007.

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Franny A. Forsman, Tiffany R. Murphy, and Michael Pescetta, Federal Public Defender's Office, Las Vegas, NV, for the petitioner-appellant.

George J. Chanos and David K. Neidert, Office of the Nevada Attorney General, Reno, NV, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada, Edward C. Reed, District Judge, Presiding. D.C. No. CV-N-92-0536-ECR.

Before: HARRY PREGERSON, W. FLETCHER, and MARSHA S. BERZON, Circuit Judges.

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.

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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 kidnapped 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. Detective Wright of the Sparks police informed Sechrest of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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.

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 suspect 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 outside. 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 Bogison and another Reno officer, Detective Eubanks. Before the interrogation began, Sechrest requested permission to call his grandmother and his attorney. Sechrest first called his grandmother. 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 confession could be admitted into evidence.

Sechrest's seven-day jury trial began on September 12, 1983, in Nevada's Second Judicial District Court. During his voir

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dire of the jury, the prosecutor made two statements suggesting that Sechrest would not actually serve a full term of life imprisonment if he were sentenced to life in prison without 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 without 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 kidnapping.

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 counsel's request, the trial judge appointed Dr. Gerow to conduct a psychiatric evaluation of Sechrest. Using Dr. Gerow's evaluation, defense counsel sought to determine whether Sechrest 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 perversion." 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 acquiesced in the prosecution's request to call Dr. Gerow as a prosecution 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 statements to the jury emphasizing that the Board of Pardon Commissioners 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

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verdict you return, he will impose. He also told you, and it is very important 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 sentence 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 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...

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