Gollehon v. Mahoney
| Decision Date | 22 November 2010 |
| Docket Number | No. 09-99011,09-99011 |
| Citation | 626 F.3d 1019 |
| Parties | William Jay GOLLEHON, Petitioner-Appellant, v. Michael MAHONEY, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Donahoe, Senior Litigator, Federal Defenders of Montana, Helena, MT, argued the cause for the petitioner-appellant and filed briefs. With him on the briefs was Anthony R. Gallagher, Federal Defender, Federal Defenders of Montana, Helena, MT.
John Paulson, Assistant Attorney General, Helena, MT, argued the cause for the respondent-appellee and filed a brief. With him on the brief was Steve Bullock, Montana Attorney General, Helena, MT.
Appeal from the United States District Court for the District of Montana, Charles C. Lovell, District Judge, Presiding. D.C. No. 6:95-cv-00037-CCL.
Before: JEROME FARRIS, DIARMUID F. O'SCANNLAIN and KIM McLANE WARDLAW, Circuit Judges.
We are called upon to decide whether a state court defendant lacked fair notice as a matter of federal Constitutional law that aiding and abetting a deliberate homicide would subject him to the death penalty in Montana.
On September 2, 1990, the badly beaten body of inmate Gerald Pileggi was found lying in the exercise yard of the Montana State Prison in Deer Lodge, Montana. 1 Several witnesses had seen inmates William Gollehon and Douglas Turner both strike Pileggi multiple times with baseball bats. An autopsy revealed that Pileggi died from massive head injuries, including a blow to the top of the head which had caved in part of his skull, as well as a blow to the side of his face which had collapsed his forehead, torn his brain, and ruptured his eyeball.
Gollehon and Turner were jointly charged with deliberate homicide for the beating death of Pileggi. The information was later amended to add an alternative count of deliberate homicide by accountability.2 The difference between thesecounts, as explained by the Montana Supreme Court, is that the "charge of deliberate homicide by accountability allowed the jury to convict both men involved in the deliberate homicide without having to make the determination of who struck the fatal blow." State v. Gollehon, 262 Mont. 1, 864 P.2d 249, 261-62 (1993) (" Gollehon I "). After a joint trial, the jury found Gollehon and Turner guilty of deliberate homicide by accountability. Both were sentenced to death.
On direct appeal, Gollehon argued that the trial court erred by sentencing him to death for deliberate homicide by accountability because no sentence for this crime was set by statute. Id. at 264. A divided Montana Supreme Court rejected this argument, holding that deliberate homicide by accountability is the same offense as deliberate homicide and therefore subject to the same penalties, including death. Id. at 264-65. The three dissenting justices contended that because no statute explicitly makes death an available penalty for deliberate homicide by accountability, the rule of lenity required that a fallback sentencing provision for felonies without a specified penalty should apply. Id. at 270-72 (Gray, J., dissenting).
After state post-conviction proceedings, Gollehon filed a petition for a writ of habeas corpus in the federal district court arguing that his right to due process was violated because he lacked fair notice that deliberate homicide by accountability is punishable by death in Montana. The district court held that this claim was unexhausted and denied his petition on other grounds. Although, on appeal to this court, we affirmed the district court as to grounds it reached, we concluded that Gollehon had "sufficiently presented the federal issue to the state court." Gollehon v. Mahoney, 259 Fed.Appx. 1, 3 (9th Cir.2007) (" Gollehon II "). Accordingly, we remanded this final remaining claim to the district court for consideration on the merits.
On remand, the district court denied Gollehon's motion for summary judgment on the due process claim, dismissed the habeas petition, and sua sponte denied a certificate of appealability ("COA"). See Gollehon v. Mahoney, 2009 WL 2148643 (D.Mont. July 15, 2009) (" Gollehon III "). Gollehon timely applied to this court for a COA pursuant to 28 U.S.C. § 2253(c). After a round of briefing and argument, we now GRANT Gollehon's request for a COA as to the fair notice claim 3 and proceed to consider the merits.4 Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Because Gollehon filed his habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), pre-AEDPA law applies. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Accordingly,we review the district court's denial of habeas relief de novo and the district court's factual findings for clear error. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir.2005) (en banc). Under pre-AEDPA law, we owe no deference to state-court rulings on questions of constitutional law, since "we simply resolve the legal issue on the merits, under the ordinary rules." Id. at 628 (internal quotation marks omitted). We presume the state court's findings of fact to be correct unless they are not fairly supported by the record. Id. at 629.
"Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). To resolve Gollehon's fair notice claim, we must decide whether his death sentence for deliberate homicide by accountability was so "unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue" that it violated his right to due process under the Fourteenth Amendment. Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). "The beginning point for a Bouie analysis is the statutory language at issue, its legislative history, and judicial constructions of the statute." Webster v. Woodford, 369 F.3d 1062, 1069 (9th Cir.2004). Accordingly, we begin with the text of the relevant statutes.5
Section 45-2-301 of the Montana Code provides that "[a] person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for the conduct as provided in section 45-2-302, or both." Mont.Code Ann. § 45-2-301 (1990).6 Section 45-2-302, in turn, provides that "[a] person is legally accountable for the conduct of another when ... either before or during the commission of an offense with the purpose to promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense." Id. § 45-2-302(3). Gollehon does not contest that because he aided and abetted the killing of Gerald Pileggi, he is legally accountable for deliberate homicide pursuant to section 45-2-302.7 We therefore consider whether section 45-2-301 provided Gollehon with fair notice that a person "responsible" for an offense by way of accountability is subject to the penalty specified for that offense.
To determine the plain meaning of a statute, we traditionally refer to dictionaries in use at the time of the statute's enactment. See Lamar v. United States, 241 U.S. 103, 113, 36 S.Ct. 535, 60 L.Ed. 912 (1916). Because Montana's accountabilitystatutes were enacted in 1973, we turn to various contemporaneous definitions. The version of Black's Law Dictionary in effect at the time defined "responsible" as "[l]iable, legally accountable or answerable." Black's Law Dictionary 1060 (4th ed. 1951). Webster's New Collegiate Dictionary defined "responsible" as "liable to legal review or in the case of fault to penalties," and "liable to be called on to answer." Webster's New Collegiate Dictionary 986-87 (1973). Section 45-2-301 thus made clear that a person who is "responsible" for an offense by way of accountability is liable for that offense and must answer for it by way of a penalty.
Gollehon contends that the only applicable penalty was Montana's default penalty for felonies for which "no penalty is otherwise provided," i.e., up to 10 years in the state prison, a fine of up to $50,000, or both. Mont.Code Ann. § 46-18-213. But no penalty was specified for accountability because accountability is not a separate offense requiring a separate penalty. Rather, it is a theory of liability for an offense for which penalties were already provided by the legislature.8 In the case of deliberate homicide, the legislature unambiguously provided for a penalty of death, life imprisonment, or 10-100 years' imprisonment. Id. § 45-5-102(2). Consequently, we conclude that Montana's accountability statutes, together with the deliberate homicide statute, made it "reasonably clear at the relevant time" that Gollehon's conduct would subject him to the death penalty. United States v. Lanier, 520 U.S. 259, 267, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).
Although we believe that Montana's criminal statutes, standing alone, supplied all the fair notice that the Due Process Clause requires, we proceed to consider whether prior judicial decisions also contributed to such notice. See id. ().
As an initial matter, we address Gollehon's contention that he lacked fair notice because "no decision of the Montana Supreme Court (up until [his] case) even considered whether an offender convicted of deliberate homicide by accountability could be sentenced to death." Mot. for COA at 12. "Due process is not, however, violated simply because the issue is a matter of first impression." Ponnapula v. Spitzer, 297...
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