McKenna v. McDaniel

Citation65 F.3d 1483
Decision Date15 September 1995
Docket Number93-99002,Nos. 93-99001,s. 93-99001
Parties95 Cal. Daily Op. Serv. 7285, 95 Daily Journal D.A.R. 12,445 Patrick Charles McKENNA, Petitioner-Appellee-Cross-Appellant, v. Ed K. McDANIEL, * Warden of the State of Nevada, Respondent-Appellant-Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David F. Sarnowski, Chief Deputy Attorney General, Carson City, NV, for respondent-appellant-cross-appellee.

John J. Graves, Graves & Leavitt, Las Vegas, NV; Cal J. Potter, III, Potter Law Offices, Las Vegas, NV, for petitioner-appellee-cross-appellant.

Michael Pescetta, Nevada Appellate and Postconviction Project, Las Vegas, NV, for amicus curiae.

Appeals from the United States District Court for the District of Nevada.

Before: HUG, CYNTHIA HOLCOMB HALL, and TROTT, Circuit Judges.

HUG, Circuit Judge:

Petitioner, Patrick Charles McKenna, filed a petition for a writ of habeas corpus contesting the validity of his conviction for first-degree murder, a crime for which he was sentenced to death. The district court upheld the conviction but held that the jury

instruction regarding depravity of mind was unconstitutionally vague as given to the jury and, therefore, was an impermissible aggravating circumstance upon which to base a sentence of death. The State appealed the ruling on the sentence and McKenna cross-appealed, claiming constitutional errors relating to both his conviction and sentence. We affirm the district court's decision denying relief from the conviction but granting relief concerning the death sentence. We remand for the district court to enter an order granting the writ of habeas corpus with regard to the death sentence unless the State resentences McKenna within a reasonable period of time.

FACTS AND PROCEDURAL HISTORY

McKenna was imprisoned after conviction for rape at age 17 in 1964. In 1976, McKenna was paroled. Less than two years later, he was arrested for the rape and robbery of two women. McKenna was later charged and convicted of one count of robbery, two counts of second-degree kidnapping and using a weapon to commit the crimes, and three counts of sexual assault. See McKenna v. State of Nevada, 101 Nev. 338, 705 P.2d 614, 622 (1985), cert. denied, McKenna v. Nevada, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986). After the court announced the verdict, McKenna returned to his cell. The next morning another inmate, Jack Nobles, was found dead in cell 4A2. The cause of death was ligature strangulation.

Evidence was produced at trial that McKenna, Nobles, and two other inmates, David Denson and David Rossi, were locked down in cell 4A2 together that night. Rossi testified that while he was sleeping in the bottom bunk with Nobles in the top, he awoke and observed McKenna coming toward the bunk. He then heard McKenna and Nobles arguing in whispers. McKenna stood on the toilet at the bottom of Rossi's bunk, positioning himself over Nobles. Rossi stated that he heard grunting and wheezing and felt vibrations "like feet kicking." McKenna then partly pulled Nobles off the top bunk. Rossi observed blood running down McKenna's arm, which was wrapped around Nobles's neck. Rossi testified that McKenna turned Nobles loose three-to-five minutes later, placed him back in his bunk, and covered him with a blanket.

The testimony of another inmate, Michael Dennis Jones, who was in the cell directly across from cell 4A2 that night, was read into the record. 1 Jones's testimony stated that he saw McKenna and Nobles arguing and then saw McKenna choking him. Nobles's knees buckled and he dropped to the ground. Rossi helped McKenna place Nobles back in the top bunk.

Denson stated that the next morning, before leaving for breakfast and before Nobles's body was found, McKenna asked him to pass a homemade knife, the handle of which was wrapped with fabric ligature, to another inmate, Seebon Harris, who was in another cell. Harris testified that he did receive the knife from McKenna but, after learning Nobles had been murdered, handed it over to a guard. Harris further testified that during the day of January 5, McKenna was very upset and had struck another inmate without provocation. Harris had spoken with Nobles that day and testified that Nobles was upset and crying and believed McKenna was mad at him. Nobles stated, "Why don't them damn guys just leave me alone."

McKenna was charged, tried, and convicted for the murder of Jack Nobles. The Nevada Supreme Court overturned his initial conviction, however, because the trial court improperly allowed McKenna's psychiatrist to relate admissions made by McKenna. In August, 1982, McKenna was retried. At McKenna's request, the court appointed his brother, Ken McKenna, an attorney who had graduated from law school a year and a half prior to the appointment, as McKenna's counsel along with another attorney, Kent Robison. Robison withdrew from the case two days after trial started and sent Bruce Beesley, another attorney from his office, to replace him.

The jury again convicted McKenna of murder. The jury found two aggravating factors:

1) McKenna was previously convicted of felonies involving the use or threat of violence; and 2) the crime involved depravity of mind. The jury returned a form stating that it found no mitigating factors sufficient to outweigh the aggravating factors, and sentenced Mckenna to death. The Nevada Supreme Court affirmed McKenna's conviction and sentence on direct appeal. See McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985). The United States Supreme Court denied McKenna's petition for writ of certiorari. 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986).

McKenna then sought post-conviction relief in state court. The district court for the district of Clark County denied relief and McKenna appealed to the Nevada Supreme Court, which vacated McKenna's sentence with instructions to reconsider McKenna's petition. In February 1988, the trial court held an evidentiary hearing and again denied McKenna relief. The Nevada Supreme Court affirmed that decision and, later, denied McKenna's petition for rehearing. The United States Supreme Court again denied McKenna's petition for writ of certiorari. See McKenna v. Nevada, 498 U.S. 925, 111 S.Ct. 306, 112 L.Ed.2d 260 (1990).

In November 1990, McKenna filed a petition seeking a writ of habeas corpus in the Federal District Court for the District of Nevada. On February 20, 1992, the district court overturned McKenna's death sentence, holding that the depravity of mind instruction, which allowed the jury to find depravity of mind as an aggravating circumstance, was unconstitutionally vague. The district court vacated McKenna's sentence, but upheld his convictions. On appeal, we held it was unclear whether the district court had considered all of McKenna's claims for habeas relief, and we remanded for that purpose. The district court clarified its ruling, entering a new order vacating the death sentence on the ground that the depravity of mind instruction was unconstitutionally vague, but denying all of McKenna's other claims for habeas relief. The State of Nevada now appeals, and McKenna cross-appeals.

The appeals were timely, and we granted a certificate of probable cause. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253.

DISCUSSION

On appeal, the State of Nevada contends first that the district court erred in reaching the constitutionality of the depravity of mind instruction because McKenna had procedurally defaulted on that claim in the state court; and second, that because there remains one finding of a valid aggravating factor and no mitigating factors, no reweighing is required. McKenna cross-appeals, arguing that the district court improperly denied his other claims for habeas relief, contending that there were constitutional errors in both the guilt phase and the penalty phase of his trial.

I. Depravity of Mind Instruction
A. Procedural Default

At the penalty phase of McKenna's trial, the jury, in a special verdict, found two aggravating circumstances: 1) the murder was committed by a person who was previously convicted of another felony or felonies involving the use or threat of violence to the person of another; and 2) the murder was committed with depravity of mind. The verdict form further read: "We the Jury, state that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances stated." The jury left blank and unsigned a special verdict form that asked them to "designate that the mitigating circumstance or circumstances which have been checked below outweigh any aggravating circumstance or circumstances."

The following instruction was given to the jury on the depravity of mind aggravating circumstance:

You are instructed that an aggravating circumstance of murder in the first degree is where the murder involved depravity of mind.

The condition of mind described as depravity of mind is characterized by an inherent deficiency of moral sense and integrity. It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity and which is indifferent to human life. It is a state of mind outrageously horrible or inhuman.

The district court found this instruction to be unconstitutionally vague and granted McKenna's petition as to the death sentence. The State of Nevada now argues that the district court's decision to reach the merits of this issue was error because McKenna procedurally defaulted on this claim in state court.

McKenna's counsel did not object to the depravity of mind instruction at trial, and the issue was not raised on McKenna's direct appeal. McKenna's first challenge to the constitutionality of the depravity of mind instruction came in McKenna's state petition for post-conviction relief. In addressing the issue for the first time, the Nevada Supreme...

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