Petrocelli v. Baker, 3:94-cv-0459-RCJ-VPC

• Decision Date: 08 October 2013
• Docket Number: 3:94-cv-0459-RCJ-VPC
• Parties: TRACY PETROCELLI, Petitioner, v. RENEE BAKER, et al., Respondents.
• Court: U.S. District Court — District of Nevada

TRACY PETROCELLI, Petitioner, v. RENEE BAKER, et al., Respondents.

3:94-cv-0459-RCJ-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: October 8, 2013

ORDER

Introduction

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Tracy Petrocelli, a Nevada prisoner sentenced to death. The case is before the court for resolution of the merits of the claims remaining in Petrocelli's fourth amended petition for a writ of habeas corpus. The court will deny Petrocelli's petition and direct that judgment be entered accordingly.

Background Facts and Procedural History

In its January 4, 1985, decision on Petrocelli's direct appeal, the Nevada Supreme Court stated, as follows, the facts of the case as revealed by the evidence at trial:

Tracy Petrocelli's journey to Reno began in Washington where he killed his fiancee. He fled Washington and apparently drove to Colorado in a Corvette, to Oklahoma in a van and to Reno in a Datsun which he stole while "test driving" the vehicle. Upon arriving in Reno, Petrocelli decided he needed a four-wheel drive truck to get around in the snow. The next day, his search for a vehicle ultimately led to a local used car dealer. The dealer, James Wilson, acceded to Petrocelli's request for a test drive of a Volkswagen (VW) pickup, and the two drove off with the dealer at the wheel. At about 1:30 p.m., a Dodge dealer saw them driving north on Kietzke Lane.

Approximately forty-five minutes later, a Reno patrolman saw one person driving a truck matching the description of the VW speeding toward Pyramid Lake.

That evening, Petrocelli was picked up on the Pyramid Highway and given a ride to Sutcliffe. He told the driver that his motorcycle had broken down. In Sutcliffe, Petrocelli got a ride to Sparks with a local game warden. Petrocelli then took a cab to Reno and apparently paid his fare from a two-inch roll of bills.

The next day, the game warden and his partner looked for Petrocelli's motorcycle. Instead, they found the VW truck with bloodstains and bullet holes on the passenger side. The car dealer's body was found later that day in a crevice, covered with rocks, sagebrush and shrubbery. His back pockets were turned slightly inside out and empty; his wallet was missing. The victim, who usually carried large amounts of cash with him, had been shot three times with a .22 caliber weapon. One shot was to the neck; another shot was to the heart. The third shot was to the back of the head from a distance of two to three inches.

In the abandoned truck, .22 caliber bullet casings were found. When he was arrested, Petrocelli was carrying a .22 caliber semi-automatic pistol which he testified he always carried loaded and ready to fire. Ballistics tests on the casings found in the abandoned VW revealed that they had been fired from Petrocelli's pistol. Tests on the bullet found in Wilson's chest and a test bullet fired from Petrocelli's pistol also revealed similar markings.

At trial, Petrocelli provided his own account of the killing. After driving off the car lot, the car dealer stopped at a gas station and filled the truck. From the station, Petrocelli drove the truck. He and Wilson proceeded to argue about the price of the truck. Petrocelli laid $3,500.00 on the dashboard and offered a total of $5,000.00 cash. The car dealer was insulted and called him a "punk." Later, on the way back, Wilson twice grabbed for the steering wheel. Petrocelli then pulled out his pistol and said: "Now who is the punk." The victim laughed and said he had a gun also, although Petrocelli never saw one. The car dealer tried to take the pistol from Petrocelli as he continued to drive. As they struggled, the gun went off two or three times. Petrocelli testified, "I knew it was shooting, and I was just trying to pull it away from him.... It was an accident. It was an accident. I didn't do anything. I just tried to keep him from getting the gun." Petrocelli drove to a nearby doctor's office, went up to the door, but did not go in because he "didn't know how to tell him [doctor] there was someone hurt, shot in the car." Thereafter, Petrocelli went to a bowling alley and called the hospital, but "didn't know what to say." He then returned to the truck, drove to Pyramid Lake and hid the car dealer's body under some rocks. Petrocelli began walking after his truck bogged down, but then returned to the vehicle to retrieve his gloves and the gun. He also picked up the car dealer's wallet, took his money, threw the business and credit cards into the wind, and discarded the wallet. Petrocelli then walked to the highway where he obtained rides back to Reno.

Petrocetti v. State, 101 Nev. 46, 48-49, 692 P.2d 503, 505-06 (1985) (emendations in original).

Petrocelli was convicted by a jury of first degree murder and robbery with the use of a deadly weapon. See Exhibits 4, 5 (ECF No. 163-2, pp. 12-17).¹ He was sentenced to death for the murder, and to thirty years in prison for the robbery. See id.

Petrocelli appealed. See Exhibit Z (ECF No. 75-1, pp. 117-64) (opening brief); Exhibit AA (ECF No. 76, pp. 2-49) (answering brief); Exhibit BB (ECF No. 76, pp. 50-75) (reply brief). The Nevada Supreme Court affirmed on January 4, 1985. Petrocetti v. State, 101 Nev. 46, 692 P.2d 503 (1985); see also Exhibit 9 (ECF No. 163-3, pp. 1-27). Petrocelli's petition for rehearing was denied on March 19, 1985. Exhibit II (ECF No. 118-19).

On August 12, 1985, Petrocelli filed a petition for post-conviction relief in the state district court. Exhibit H (ECF No. 70-2, pp. 72-81). On March 20, 1985, the state district court held an evidentiary hearing. Exhibit Y (ECF No. 75, p. 133 - ECF No. 75-1, p. 115) (transcript). On December 31, 1986, the state district court denied the petition. Exhibit I (ECF No. 70-2, p. 138 -ECF No. 70-3, p. 8). Petrocelli appealed. Exhibit JJ (ECF No. 76, pp. 121-42 (opening brief); Exhibit KK (ECF No. 76, p. 143 - ECF No. 76-1, p. 31) (answering brief); Exhibit LL (ECF No. 76-1, pp. 32-49) (reply brief). On June 23, 1988, the Nevada Supreme Court dismissed the appeal. Exhibit NN (ECF No. 76-1, pp. 51-56).²

On August 24, 1988, Petrocelli filed a petition for writ of habeas corpus in this court, initiating the case of Petrocelli v. Whitley, CV-N-88-0446-HDM.³ Exhibit 16 (ECF No. 164, pp. 2-17). Counsel was appointed to represent petitioner. See Exhibits 2 and 5 to Respondents'February 7, 1997 Filing (ECF No. 55).⁴ On May 31, 1989, upon a motion by Petrocelli, the court ordered his first federal habeas action, case number CV-N-88-0446-HDM, dismissed without prejudice, to allow him to return to state court to further exhaust his claims. See Exhibits 6, 7, 8, 9, 10, and 11 to Respondents' February 7, 1997 Filing.

On March 10, 1989, Petrocelli filed a petition for writ of habeas corpus in state district court. Exhibit PP (ECF No. 36, pp. 19-26). The state district court dismissed that petition on January 22, 1992. Exhibit UU (ECF No. 36, pp. 109-23). Petrocelli appealed. See Exhibit WW (ECF No. 36, p. 125 - ECF No. 36-1, p. 38) (opening brief); Exhibit XX (ECF No. 36-1, pp. 40-94) (answering brief); Exhibit YY (ECF No. 36-1, pp. 95-104) (reply brief). The Nevada Supreme Court dismissed the appeal on December 22, 1993. Exhibit ZZ (ECF No. 36-1, p. 106 - ECF No. 36-2, p. 1).⁵

Petrocelli then initiated this, his second, federal habeas corpus action, on July 13, 1994. He filed the original petition for writ of habeas corpus in this action on October 28, 1994 (ECF No. 4). Counsel was appointed for Petrocelli (ECF Nos. 7, 8, 24). On February 9, 1996, Petrocelli filed a first amended habeas petition (ECF No. 28).

Respondents then filed a motion to dismiss, arguing that certain claims in the first amended petition were unexhausted, procedurally barred, and constituted an abuse of the writ (ECF No. 36). The court granted that motion, in part, and dismissed five claims from the first amended petition (ECF Nos. 46, 56). In a subsequent order, entered September 30, 1997, the court denied the first amended habeas petition, ruling that certain claims in it were an abuse of the writ and that certain claims were procedurally defaulted, and denying the remainder of the claims on their merits (ECF No. 78). Judgment was entered (ECF No. 79).

Petrocelli appealed (ECF No. 80). On March 8, 2001, the court of appeals affirmed in part, reversed in part, and remanded. Petrocelli v. Angelone, 248 F.3d 877 (9th Cir.2001) (copy of opinion in record at ECF No. 88). The court of appeals affirmed this court's denial, on the merits, of certain of Petrocelli's claims, and reversed this court's determinations that certain claims were an abuse of the writ and that certain claims were procedurally defaulted. Id. The court of appeals remanded for further proceedings. Id.

Following the remand, the district court heard from the parties regarding the status of the remanded claims, with respect to the exhaustion of those claims in state court (see ECF Nos. 92, 93, 94, 97, 98, 99, 101). In an order entered February 7, 2003 (ECF No. 100), the court ruled that the remanded claims were "mixed," meaning that some of them had been exhausted in state court and some had not. The court extended to Petrocelli the opportunity to amend his petition to remove the unexhausted claims, and exhaust those claims in state court during a stay of this action. Petrocelli opted to take that course: he filed a second amended petition (ECF No. 104), and then, to correct typographical errors, a third amended petition (ECF No. 108), and on May 28, 2003, the court ordered this action stayed pending Petrocelli's exhaustion of claims in state court (ECF No. 109).

On August 11, 2003, Petrocelli filed a petition for writ of habeas corpus in the state district court. Exhibit 26 (ECF No. 165, pp. 2-43). Petrocelli later filed a supplement to that petition. Exhibit 32 (ECF No. 165-3, pp. 80-93). The state district court held evidentiary hearings. Exhibits 29, 30, 31 (ECF No. 165-2,...