                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TRACY PETROCELLI,                      No. 14-99006
          Petitioner-Appellant,
                                         D.C. No.
              v.                    3:94-cv-00459-RCJ

RENEE BAKER, Warden,                   ORDER AND
         Respondent-Appellee.           AMENDED
                                         OPINION


     Appeal from the United States District Court
               for the District of Nevada
  Robert Clive Jones, Senior District Judge, Presiding

      Argued and Submitted September 16, 2016
              San Francisco, California

                 Filed July 5, 2017
              Amended August 23, 2017

    Before: William A. Fletcher, Morgan Christen,
      and Michelle T. Friedland, Circuit Judges.

                       Order;
            Opinion by Judge W. Fletcher;
            Concurrence by Judge Christen
2                      PETROCELLI V. BAKER

                            SUMMARY*


                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

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    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.


                         COUNSEL

A. Richard Ellis (argued), Mill Valley, California, for
Petitioner-Appellant.
4                  PETROCELLI V. BAKER

Robert E. Wieland (argued), Senior Deputy Attorney
General; Jeffrey M. Conner, Assistant Solicitor General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Respondent-Appellee.


                         ORDER

   The majority opinion and concurrence filed on July 5,
2017, and appearing at 862 F.3d 809, are hereby amended.
An amended majority opinion and concurrence are filed
concurrently with this order.

    The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and rehearing en banc is
DENIED. No new Petition for Panel Rehearing or Petition
for Rehearing en Banc will be entertained.



                        OPINION

W. FLETCHER, Circuit Judge:

    In 1982, Tracy Petrocelli was convicted and sentenced to
death in Nevada state court for the robbery and first-degree
murder of James Wilson, a Nevada used car salesman.
Petrocelli filed a federal petition for writ of habeas corpus
before the effective date of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Petrocelli appeals the district
court’s denial of the writ.
                    PETROCELLI V. BAKER                       5

    We affirm the district court’s denial of the writ with
respect to Petrocelli’s conviction but reverse with respect to
his death sentence. We hold that admission of Dr. Lynn
Gerow’s psychiatric testimony during the penalty phase
violated Petrocelli’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. See Brecht v. Abrahamson,
507 U.S. 619 (1993).

                        I. Background

       A. Crime, Arrest, and Pre-Trial Interrogations

    On March 29, 1982, Petrocelli went on a test drive of a
Volkswagen pickup truck with James Wilson, a used car
salesman, in Reno, Nevada. At some point during that test
drive, Petrocelli shot and killed Wilson. Wilson’s body was
found buried in a crevice under some rocks and brush near
Pyramid Lake. The lake is about thirty-five miles north of
Reno. Wilson had been shot in the neck, chest, and back of
the head.

    Nearly a year before killing Wilson, in May 1981,
Petrocelli had pleaded guilty in Washington State to
kidnaping his girlfriend, Melanie Barker. He had received a
suspended sentence conditioned on his completion of a drug
treatment program. Petrocelli absconded from the treatment
program twice and never completed it. Petrocelli shot and
killed Barker in Washington State in October 1981, five
months before he killed Wilson in Nevada.

   Petrocelli was arrested for the Wilson murder in Las
Vegas on April 18, 1982. The following day, he was
6                   PETROCELLI V. BAKER

interrogated in Las Vegas. Petrocelli was advised of his
Miranda rights, and he signed a statement indicating that he
understood them. Petrocelli stated during the interrogation,
“I’d sort of like to know what my . . . lawyer wants me to
do.” (Ellipsis in original.) He nonetheless continued to
answer questions. Later in the interrogation, he admitted to
having previously stolen a car from a “Dub Peterson”
dealership in Oklahoma City after taking it for a test drive
with a salesman.

    Petrocelli was subsequently transported to Reno. On the
afternoon of April 20, he was interrogated by Sergeants Glen
Barnes and Abel Dickson, as well as two prosecutors from
the District Attorney’s Office of Washoe County, Bruce
Laxalt and Don Nomura. At the beginning of the
interrogation, Petrocelli made a variety of requests that he
characterized as “preconditions” to talking. They included
locating some of his property, facilitating a visit by his wife,
bringing him photographs of Barker, arranging a television
interview, and receiving psychiatric counseling. Dickson
testified at a hearing outside the presence of the jury that no
promises were made, but that Petrocelli was told that if his
requests “could be done they would be done.” After being
informed of his Miranda rights, Petrocelli confessed to
shooting both Wilson and Barker.

    On April 20, the Public Defender of Washoe County was
appointed as counsel for Petrocelli by order of the Reno
Justice Court. On April 21, Petrocelli personally appeared in
the Justice Court, where he was arraigned and bail was set.

   The visitors’ log for the Washoe County Jail shows that
Larry Wishart, an attorney from the Washoe County Public
Defender’s Office, and Tim Ford, an investigator from that
                    PETROCELLI V. BAKER                       7

office, visited Petrocelli on April 21, the day of his
arraignment, at about 1:50 pm. (A date and time stamp of
“82 APR 21 P 1 :5” appears on the photocopy of the log. The
number specifying the minute is cut off on the photocopy in
the trial court record.) A date and time stamp shows that their
visit lasted about half an hour (“82 APR 21 2 :2”). The log
shows a visit from Dr. Lynn Gerow later that day. Gerow
was a psychiatrist who had been asked by Chief Deputy
District Attorney Laxalt to evaluate Petrocelli’s competency
to stand trial.

    The relevant page of the visitors’ log is dedicated
exclusively to visitors to Petrocelli. Wishart and Ford’s
entry, with their signatures, is on line three of the page. They
wrote “WCPD/ATT” in the box asking for their
“relationship.” Dr. Gerow’s entry, with his signature, is on
line four, immediately below. He wrote “D.A.” in the box
asking for his “relationship.” The entry by Wishart and Ford,
stating their relationship to Petrocelli, would have been
apparent to Gerow when he signed the log. A date and time
stamp show that Gerow signed in at about 3:50 (“82 APR 21
P 3 :5”). There is no stamp showing when his visit ended.
Gerow testified at trial that he spent two hours interviewing
Petrocelli.

    Petrocelli testified that he believed that Dr. Gerow had
come to see him in response to his request for counseling.
During his April 20 interview in Reno, Petrocelli had
specified as one of his “preconditions” that he receive
psychiatric counseling. Petrocelli testified consistently at a
hearing outside the presence of the jury, saying that he had
stated as one of his preconditions: “I wanted to have
psychiatric counseling while I was in the jail.” He testified
that he “saw a doctor Gerow once.” When asked how long he
8                  PETROCELLI V. BAKER

spoke to Gerow, Petrocelli responded, “[I]t didn’t seem like
it was very long.” When asked to estimate the time,
Petrocelli responded, “Well, I never did even finish my
conversation. He just cut me off in the middle and left.”

    On April 27, Dr. Gerow sent a letter labeled
“confidential” to Prosecutor Laxalt in the District Attorney’s
office. He wrote:

           At your request I examined Mr. Maida
       [the name under which Petrocelli was then
       being held] at the Washoe County Jail on
       April 21, 1982. I had an opportunity to
       discuss his case with you prior to the
       psychiatric evaluation.

           ...

           Mr. Maida was abused as a child. He was
       adopted at three years of age. . . . He was in
       trouble at school and home at an early age.
       He developed a psychopathic personality
       which is complicated by a history of severe
       drug abuse. . . .

           In my opinion Mr. Maida is both
       competent for understanding the charges and
       assisting his attorney and responsible (mens
       rea) for any alleged offense.

           I have determined to see Mr. Maida in the
       future on an “as needed” basis. If you require
       my involvement as circumstances develop,
       please feel free to call me.
                   PETROCELLI V. BAKER                       9

Gerow testified in state post-conviction proceedings that
when he wrote “as needed,” he meant “as needed by Mr.
Laxalt.”

    Wishart testified in state post-conviction proceedings that
when he met with Petrocelli on April 21, he did not know that
Dr. Gerow was going to see his client later that afternoon.
Wishart testified that he would not have employed Gerow
because he “had a prosecution bias.”

    Petrocelli was interrogated again on April 27. After being
advised of his Miranda rights, Petrocelli made another
statement.

                    B. Guilt Phase Trial

    On April 28, 1982, Petrocelli was indicted on one count
of robbery with a deadly weapon and one count of first-
degree murder. The guilt phase of the trial began on July 27,
1982, and ran through August 5, 1982. At trial, the State
contended in support of the robbery count that Petrocelli went
on the test drive with Wilson in order to steal the truck, that
he used his gun to try to force Wilson out of the truck, and
that he shot Wilson when Wilson would not cooperate. To
bolster its theory, the State called Melvin Powell, an
Oklahoma car salesman, to testify that Petrocelli had stolen
a car in a similar manner (though without injuring Powell)
during a test drive in February 1982.

    The defense contended, based on Petrocelli’s testimony
at trial, that Petrocelli had been a bona fide prospective
purchaser with no intent to steal, and that Wilson was
accidentally shot in the midst of a heated argument and
struggle that resulted from haggling over the price of the
10                  PETROCELLI V. BAKER

truck. To impeach Petrocelli’s testimony, the State
introduced portions of the statements that Petrocelli had made
on April 20 and 27. To undermine Petrocelli’s contention
that the Wilson shooting was unintentional, the State
impeached Petrocelli with his statement on April 20 that his
earlier shooting of his girlfriend, Melanie Barker, was an
“accident.” The prosecutor also impeached Petrocelli by
confronting him with other inconsistencies between his trial
testimony and his statements to the detectives.

     The jury found Petrocelli guilty of both charges.

                    C. Penalty Phase Trial

         1. Aggravating Factors and Lay Testimony

    In order to render Petrocelli death-eligible, the State had
to establish at least one aggravating factor. During the
penalty phase of Petrocelli’s trial, the State sought to
establish two such factors: (1) that the murder had been
committed in the course of a robbery, and (2) that Petrocelli
had previously been convicted of a violent felony, the
kidnaping of his girlfriend Melanie Barker. (The first factor
was later held by the Nevada Supreme Court to be invalid.
See McConnell v. State, 102 P.3d 606, 624 (Nev. 2004) (per
curiam). In reviewing Petrocelli’s third petition for post-
conviction relief, the Nevada Supreme Court held that use of
this factor had been improper.)

    To establish the first factor, Prosecutor Laxalt put John
Lucas on the stand. Lucas had been in the Washoe County
Jail with Petrocelli for about five weeks after Petrocelli’s
arrest for the Wilson murder. Lucas testified that Petrocelli
had told him that he had shot Wilson in order to steal the
                   PETROCELLI V. BAKER                      11

truck. He also testified that Petrocelli said he was “going to
get rid of” the district attorney as well as an unidentified
woman Petrocelli characterized as a “snitch.”

     The second factor was Petrocelli’s conviction for
kidnaping Barker. At trial, it was uncontested that he had
later killed her. However, at the time of trial he had not been
convicted of the killing. To establish the second factor,
Prosecutor Laxalt called Melanie Barker’s mother, Maureen
Lawler, to testify about the circumstances that had led to the
kidnaping. The jury had already learned during the guilt
phase, from Petrocelli’s testimony and from the testimony of
an eye-witness, that Petrocelli had killed Barker. Lawler
testified only as to the circumstances that had led to the
kidnaping conviction. Lawler, who had lived with her
daughter in the city of Kent, in western Washington, testified
that Barker had gone to eastern Washington with Petrocelli
for three days, that Barker had been “beaten on the face” and
was “hysterical” when she returned home, and that at some
point during the three days Barker had been told by Petrocelli
that his friends would “do away with her.” Lawler testified
that after Barker had told Petrocelli that her mother would
have the police looking for her, “He agreed to take her back.
. . . At that point, she got away from him.” Lawler also
described a phone conversation, prior to the kidnaping, when
Lawler had arranged for Petrocelli’s wallet to be taken to the
police station. Petrocelli objected to her having done so, and
she testified that Petrocelli said he “would blow me away.”
Laxalt also called Joan Bleeker, who testified that Barker had
come into a restroom during the time she was in eastern
Washington and had asked Bleeker to call the police because
she was being kidnaped.
12                 PETROCELLI V. BAKER

    Petrocelli testified, presenting his version of what had
happened during the three days in eastern Washington in an
attempt to show, despite his conviction, that he had not really
kidnaped Barker. According to Petrocelli, Barker went with
him voluntarily; they were accompanied by a friend of
Petrocelli; they went out in public, eating in restaurants and
going to stores together; and she and Petrocelli got in a fight
as they were driving back to western Washington.

     In the interval between the testimonies of Lawler and
Bleeker, Prosecutor Laxalt played a tape recording of a
portion of Petrocelli’s interrogation on April 20 in which
Petrocelli described the Wilson killing. Petrocelli had cried
during his in-court testimony when describing the Wilson
killing. The tape recording is not in the record, but it is
apparent from the transcript that Laxalt played the tape to
contrast Petrocelli’s tearful demeanor during trial to an
unemotional demeanor on April 20.

          2. Professional Mental Health Evidence

    Defense counsel Wishart submitted written reports by
three different mental health professionals—Dr. John Petrich,
a psychiatrist; Dr. Martin Gutride, a psychologist; and Dr.
John Chappel, a psychiatrist. Wishart called none of the three
to give live testimony.

    Dr. Petrich’s evaluation of Petrocelli’s mental health and
future dangerousness was the most favorable to Petrocelli, but
his evaluation was of limited use to the defense. Petrich had
evaluated Petrocelli in June 1981, when Petrocelli was in jail
in Washington State on the kidnaping charge, prior to killing
Barker and Wilson.
                    PETROCELLI V. BAKER                       13

    Drs. Gutride and Chappel evaluated Petrocelli in July
1982, after he had killed Barker and while he was in jail
waiting to stand trial for killing Wilson. Gutride reported that
Petrocelli was adopted at age two and a half, and had been
physically abused by his biological mother. Petrocelli’s
adoptive mother died when Petrocelli was seventeen, and
Petrocelli attempted suicide several months after the funeral.
After his adoptive mother’s death, he became close to his
adoptive father for a brief time, but fell out of touch after his
father remarried. Gutride reported that Petrocelli cried when
he spoke about having lost contact with his father. Petrocelli
was “placed in a military academy at age twelve because of
discipline problems,” and he joined the Marines at about age
seventeen. While in the Marines, Petrocelli was arrested for
fighting with policemen while drunk; shortly thereafter, he
began going AWOL. He was eventually given a dishonorable
discharge. Sometime around 1974, Petrocelli moved to
Washington State, began working in a steel mill, and became,
by his own admission, “increasingly unstable.” In 1976, he
attempted suicide. In 1977, he was arrested for theft but fled
before his trial. He became a professional gambler in Reno,
Nevada, and began abusing alcohol and drugs. He was
arrested in 1980 for kidnaping Barker.

    Dr. Gutride reported that Petrocelli “cried openly” during
the interview and that his “distraught behavior had the quality
of his practically begging for help.” “[H]e desperately wants
to know what is the matter with him and why he did the
things he is charged with. He doesn’t deny responsibility, but
says he can’t remember most of the circumstances
surrounding the various crimes.” According to Gutride,
Petrocelli told him he “ha[d] called crisis lines in every city,
but been unable to get any help” and “ha[d] talked with
psychiatrists while in other jails and been put off.”
14                 PETROCELLI V. BAKER

    Dr. Gutride reported that throughout the interview,
Petrocelli’s “thought processes were logical and coherent,
memory seemed good, but selective, and intelligence seemed
quite adequate.” However, “[o]nce formal testing began, the
client seemed to lose those qualities. The difference was so
striking that he appeared to be faking ‘bad.’” Gutride
concluded that Petrocelli was “clearly a lot brighter than his
test scores reflect.”

    Dr. Gutride concluded that Petrocelli is “very impulsive,”
has “a high potential for violence,” is “very mistrustful of
others,” and may be “a relatively high suicide risk.” Gutride
diagnosed Petrocelli with “antisocial personality with
paranoid features.” He noted that “[t]he personal distress he
exhibited during the interview seems genuine and the client
may truly desire some mental health treatment,” though his
“ability to profit from such treatment is questionable”
because of his distrust of others. Gutride concluded by noting
that Petrocelli “can be quite dangerous to others as well as
himself and treatment should be offered in a setting where the
client can be closely monitored.”

    Dr. Chappel reported some of the same family
background information that Dr. Gutride reported. Chappel
further reported that Petrocelli’s arrest for kidnaping was
“very traumatic” for him. Petrocelli “repeatedly asked for
help” while in jail in Seattle, was seen by Dr. Petrich, and
was put on an antipsychotic drug that helped him sleep.
Petrocelli apparently attempted to commit suicide shortly
afterwards, and was put in solitary confinement as a result.
Chappel reported that Petrocelli “viewed the experience as
one of asking for help and not getting it.” He recounted
Petrocelli’s description of shooting Barker. Petrocelli
asserted that “there were times when a ‘black box’ of control
                    PETROCELLI V. BAKER                      15

in his head opened and a voice or an impulse told him to kill
or do some other destructive act,” but that he still did not
“understand why his girlfriend had to die.” Petrocelli
“expresse[d] a wish for further evaluation or treatment so he
[could] find out whether or not he killed on purpose.”

    Dr. Chappel concluded that Petrocelli was both
“depressed and angry,” with the depression “expressed
through sobbing and tears,” as well as various suicide
attempts. His anger was directed “primarily at the police and
the district attorneys.” “He considers the Washoe County
District Attorney as premeditating his murder. When this
rage occurs [he] threatens to kill the prosecutor.” Chappel
diagnosed Petrocelli with impulse control disorder and
antisocial personality disorder. He wrote that “a more
extensive evaluation” would be useful in order for Petrocelli
“to have a better understanding of the reasons for his loss of
impulse control and his reason for killing someone who was
close to him.” Chappel observed that if Petrocelli were “not
sentenced to death and executed . . . in his current state of
mind he is very dangerous to those people to whom his rage
is directed. A period of evaluation and a trial of treatment
might serve a useful purpose in preventing any further
homicidal outbursts of rage on his part.”

    After these three written reports were admitted into
evidence, Prosecutor Laxalt called Dr. Gutride to the stand.
Gutride’s testimony was very short, filling just under two
pages of transcript. In an attempt to undermine Gutride’s
diagnosis and the portions of his report that were favorable to
Petrocelli, Laxalt drew Gutride’s attention to his conclusion
that Petrocelli had been “faking ‘bad.’” Laxalt asked Gutride,
“Despite the faking on the IQ test, et cetera, do you think this
is a valid diagnosis?” Gutride replied that he could
16                  PETROCELLI V. BAKER

substantiate his diagnosis of “unsocial with paranoid
tendencies” with a “long history.” Gutride stated that the
diagnosis “does not imply an individual is unable to think
properly or conduct themselves conventionally. It relates
mostly to a style of living.”

     Prosecutor Laxalt then called Dr. Gerow to the stand.
Defense counsel Wishart objected on the grounds of
psychiatrist-patient privilege, but the court overruled the
objection. Laxalt introduced no written report by Gerow.
Gerow testified that he had interviewed Petrocelli for two
hours on April 21, and that as a result of his interview he had
formed an opinion of Petrocelli’s “mental and emotional
personality traits.” Gerow said that he agreed with Drs.
Chappel and Gutride’s diagnosis of “antisocial personality.”
However, Gerow referred to it as a “psychopathic” rather than
an “antisocial” personality. Gerow described Petrocelli’s
personality as “rare,” and as the personality of someone “who
is very callous and selfish, someone unreliable and
irresponsible.”      He testified that individuals with
psychopathic personalities “are repeatedly in trouble with the
law,” because they “don’t believe in the rules that society set
up” and do not learn from punishment. He testified that
“[t]here is no treatment at all” for psychopathic personality,
that the condition worsens during adolescent years, and that
it “persists throughout life.” Gerow testified that the violence
potential of a psychopathic “varies,” but that the propensity
for further violence is “quite high” for individuals with a
history of violence.        Gerow testified that being “a
psychopathic” was an incurable “emotional disturbance.”
Gerow concluded his direct examination testimony by stating
unequivocally, “There is no cure.”
                   PETROCELLI V. BAKER                     17

     3. Jury Instructions, Final Argument, and Verdict

     Before final penalty-phase arguments, the judge
instructed the jury. Jury Instruction 5 provided, “If the
penalty is fixed at life imprisonment without the possibility
of parole, the defendant shall not be eligible for parole.”
However, the instruction continued, indicating that the State
Board of Pardon Commissioners had the power to release
Petrocelli from prison even if the jury returned a sentence of
life imprisonment without parole:

       Under the laws of the State of Nevada, any
       sentence imposed by the jury may be
       reviewed 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, this Court has no way of knowing.
       The State Board of Pardon Commissioners,
       however, would have the power to modify any
       sentence at a later date.

    In his closing argument, Prosecutor Laxalt emphasized
Dr. Gerow’s testimony, Petrocelli’s incurability, and the
possibility that the Board of Pardon Commissioners could
release Petrocelli from prison. Laxalt maintained that
Petrocelli “is, has been, and will forever remain a cool
unfeeling, callous, individual, and a cold-blooded thief and
killer.” “He will never change.” He continued, “Dr. Gerow
has said there is no treatment; he will be a psychopathic
personality, unfortunately.” “Extreme mental or emotional
disturbance” cannot be a mitigating circumstance because
18                 PETROCELLI V. BAKER

such disturbance implies that “there is treatment available for
this person. What psychopath means, essentially, is a mean,
bad person who has never changed and who will continue to
victimize.” “[N]o society, no community, no county, no city,
no state, should ever have to risk again Tracy Petrocelli on
the street.”

    In his rebuttal argument, Prosecutor Laxalt pointed to the
reports of Drs. Chappel and Gutride, noting that each had
discussed the possibility of treatment: “That a period of
evaluation and a time of treatment might serve a reasonable
purpose. . . . Do we take that chance?” He answered this
question by emphasizing Dr. Gerow’s testimony. “[H]e will
not learn from punishment. He will not learn, he cannot
learn.” Invoking the possibility of Petrocelli’s release from
prison, Laxalt concluded:

       I ask you to consider years down the road
       when the decisions are being made at the
       Pardons Board and the Parole Board and we
       have all gone our separate ways and Mr.
       Petrocelli is there, the sole person applying
       for the pardon or applying for parole crying
       tears of remorse and telling the people how it
       wasn’t he who was the murderer of Mr.
       Wilson it was an accident and he got
       railroaded, and telling people that it wasn’t he
       who was the murderer of Melanie it was an
       accident, and he was railroaded. . . . Because
       he will be there. He will be there. . . . That’s
       a sad fact, but it’s to be faced.
                   PETROCELLI V. BAKER                      19

Laxalt asked that the jury “return a verdict of death for Mr.
Tracy Petrocelli, a cold-blooded killer, who will always
remain so.”

   The jury returned a sentence of death.

              II. Post-trial Procedural History

    The Nevada Supreme Court affirmed Petrocelli’s
conviction and sentence. See Petrocelli v. State, 692 P.2d
503 (Nev. 1985). Petrocelli filed a timely state petition for
post-conviction relief, which was denied on the merits by the
state courts. He then filed a federal habeas petition, which
the district court dismissed without prejudice because it
contained unexhausted claims. Petrocelli returned to state
court to exhaust these claims, which the state courts
dismissed as procedurally defaulted.

     Petrocelli filed his second federal habeas petition pro se
on October 28, 1994, and then filed a counseled amended
petition in 1996. The amended petition raised various claims,
including two claims challenging the reference to the Pardon
Board in Jury Instruction 5. The first of those two claims,
labeled “Ground 4,” alleged that the instruction improperly
suggested that Petrocelli could receive “a pardon or parole”
if sentenced to life without the possibility of parole because
it allowed the jury to “inappropriately speculate.” The second
claim, labeled “Ground 6,” alleged that the jury instruction
“inaccurately led the jury to believe that Petitioner, under
Nevada law, could receive parole” even though Nev. Rev.
Stat. § 213.1099 prohibits the granting of parole to a prisoner
who has a history of “[f]ailure in parole, probation, work
release or similar programs.” The district court dismissed
Ground 6 and several other grounds as an “abuse of the writ”
20                  PETROCELLI V. BAKER

because they had not been raised in Petrocelli’s first federal
habeas petition. It then denied Petrocelli’s amended petition
in September 1997, finding all claims either unexhausted,
procedurally defaulted, or nonmeritorious.

    On appeal, we reversed in part and remanded for the
district court to consider various claims it had improperly
dismissed as an “abuse of the writ,” including Ground 6.
Petrocelli v. Angelone, 248 F.3d 877, 884–85, 887 (9th Cir.
2001). Because in his briefing to us Petrocelli had not made
any argument with respect to Ground 4, we deemed that
ground abandoned. Id. at 880 n.1. On remand, the district
court found various claims unexhausted and stayed
Petrocelli’s petition in order to permit him to return to state
court to exhaust them.

    Petrocelli filed his third state petition for post-conviction
relief on August 11, 2003, raising a number of claims. The
state district court denied Petrocelli’s petition, denying some
claims on the merits and holding some claims procedurally
barred. Petrocelli appealed from the state district court’s
denial, and the Nevada Supreme Court affirmed.

    Petrocelli then returned to federal court and filed his
fourth amended petition, the operative petition in this case.
In his petition, he challenged, inter alia, Jury Instruction 5, in
language similar to that used in the claim he had labeled
“Ground 6” in his earlier petition. In this petition, he labeled
the challenge “Claim 4.” The district court dismissed Claim
4 after concluding that it corresponded to Ground 4 of
Petrocelli’s earlier petition, which we had deemed abandoned
in our earlier decision. The district court required Petrocelli
to abandon various claims it deemed unexhausted, and
rejected the remaining claims on the merits.
                    PETROCELLI V. BAKER                         21

     The district court issued a certificate of appealability as to
three claims: (1) a claim that trial counsel was ineffective for
failing to object to the admission of Powell’s testimony; (2) a
claim that Petrocelli’s April 20 and 27 statements were
admitted in violation of the Fifth, Sixth, and Fourteenth
Amendments; and (3) a claim that introduction of Dr.
Gerow’s testimony violated Petrocelli’s Fifth and Sixth
Amendment rights. We issued a certificate of appealability
as to three additional claims, including a claim challenging
Jury Instruction 5.

          III. Jurisdiction and Standard of Review

    We have jurisdiction over the district court’s denial of
Petrocelli’s federal habeas petition pursuant to 28 U.S.C.
§§ 1291 and 2253(c).

    We review de novo a district court’s decision to grant or
deny a habeas petition. Curiel v. Miller, 830 F.3d 864, 868
(9th Cir. 2016). The petition at issue was filed in 1994, well
before the April 24, 1996, effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Thus,
AEDPA’s deferential standard of review does not apply. See
Woodford v. Garceau, 538 U.S. 202, 207 (2003); see also
Thomas v. Chappell, 678 F.3d 1086, 1100 (9th Cir. 2012)
(“We have consistently held that where . . . a petitioner filed
a habeas application before the effective date of AEDPA and
the district court retained jurisdiction over the case, AEDPA
does not apply even if the petitioner files an amended petition
after the effective date of AEDPA.”).

    Under pre-AEDPA law, “we review de novo questions of
law and mixed questions of law and fact, whether decided by
the district court or the state courts.” Thomas, 678 F.3d at
22                  PETROCELLI V. BAKER

1101 (alteration omitted) (quoting Sivak v. Hardison,
658 F.3d 898, 905 (9th Cir. 2011)). Whether a constitutional
error was harmless is a mixed question of law and fact that is
reviewed de novo. Ghent v. Woodford, 279 F.3d 1121, 1126
(9th Cir. 2002). State court findings of fact are “entitled to a
presumption of correctness unless they are ‘not fairly
supported by the record.’” Silva v. Woodford, 279 F.3d 825,
835 (9th Cir. 2002) (quoting former 28 U.S.C. § 2254(d)(8)).

                        IV. Discussion

                    A. Guilt Phase Claims

     Petrocelli challenges his conviction on three grounds.
First, he contends that his trial counsel was ineffective for
failing to object to the testimony of Powell, the Oklahoma car
salesman, on the ground that Powell’s testimony was the fruit
of Petrocelli’s April 19 statement, which had been obtained
in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and
Edwards v. Arizona, 451 U.S. 477 (1981). Second, he
contends that the use at trial of his April 20 and 27 statements
violated the Fifth, Sixth, and Fourteenth Amendments. Third,
he contends that a guilt-phase jury instruction defining
premeditation and deliberation unconstitutionally relieved the
State of its burden of proving each element of the crime
beyond a reasonable doubt.

     For the reasons that follow, each contention fails.

                     1. Powell Testimony

     Petrocelli contends that trial counsel was ineffective for
failing to object to Powell’s testimony as fruit of a Miranda
and Edwards violation. As recounted above, Powell was a
                    PETROCELLI V. BAKER                       23

used car salesman from whom Petrocelli had stolen a car
during a test drive, in a manner similar to his theft of the
truck in Nevada. The prosecution learned of the prior vehicle
theft during the April 19 interrogation when Petrocelli
admitted he had stolen a vehicle from a “Dub Peterson”
dealership in Oklahoma City.

    To show ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), a defendant
must show that his counsel’s representation “fell below an
objective standard of reasonableness” and that he was
prejudiced by the deficient performance. Id. at 687–88. A
failure to make a motion to suppress that is unlikely to
succeed generally does not constitute ineffective assistance of
counsel. See Premo v. Moore, 562 U.S. 115, 124 (2011); see
also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994)
(holding that failure to make a motion to suppress which
would “be meritless on the facts and the law” does not
constitute ineffective assistance of counsel).

    Before beginning the interrogation on April 19, the police
officers advised Petrocelli of his Miranda rights, and
Petrocelli signed a statement indicating that he understood
them. The officers then began questioning Petrocelli. For
some time he answered questions freely. When he later
became evasive, one of the officers observed, “I thought . . .
you wanted to talk to us about this.” Petrocelli responded, “I
do,” and continued answering questions. Shortly afterwards,
Petrocelli stated, “I’d sort of like to know what my . . . lawyer
wants me to do.” (Ellipsis in original.) When the officer
asked if Petrocelli had understood his rights, he answered that
he did. Later in the questioning, Petrocelli stated, “I even
have a . . . part-time attorney and just to answer questions for
me.” (Ellipsis in original.) The officer then asked, “Is it . . .
24                 PETROCELLI V. BAKER

what you’re telling me is you don’t want to answer any
questions without an attorney?” (Ellipsis in original.)
Petrocelli responded, “No. I just need to have something
answered. That’s all.” The officer told him, “Well, we don’t
have an attorney . . . present with us right now. Like I
indicated before if at any time you don’t want to . . . answer
any questions or make any statements you don’t have to.”
(Ellipses in original.) The officer resumed questioning, and
Petrocelli confessed to stealing cars by going to car lots and
taking them for test drives. He mentioned one particular theft
from a “Dub Peterson” dealership in Oklahoma City. This
led the police to Powell, who testified at Petrocelli’s trial.

    When a suspect invokes his Fifth Amendment right to
have counsel present during a custodial interrogation, “the
interrogation must cease until an attorney is present.”
Miranda, 384 U.S. at 474. Police may not continue
questioning a suspect without counsel present “unless the
accused himself initiates further communication.” Edwards,
451 U.S. at 484–85. Only an unambiguous invocation of the
right to counsel triggers protection under Edwards. An
invocation is unambiguous if the accused “articulate[s] his
desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.”
Davis v. United States, 512 U.S. 452, 459 (1994). Applying
this test, the Supreme Court held in Davis that the statement,
“Maybe I should talk to a lawyer,” was ambiguous and did
not constitute a request for counsel. Id. at 462.

   Under Davis, Petrocelli’s language was insufficient to
constitute an unambiguous invocation of counsel. Because
Petrocelli failed to invoke his right to counsel
unambiguously, the April 19 interrogation was not conducted
                    PETROCELLI V. BAKER                      25

in violation of Miranda or Edwards. Petrocelli’s trial counsel
was therefore not ineffective in failing to move to suppress
Powell’s testimony as fruit of the interrogation.

            2. April 20 and April 27 Statements

    Petrocelli contends that the use at trial of his statements
to the detectives on April 20 and April 27 violated his Fifth,
Sixth, and Fourteenth Amendment rights. Prosecutor Laxalt
used Petrocelli’s statement that his killing of Barker was an
“accident” to impeach Petrocelli’s testimony that the Wilson
shooting was also an accident. Laxalt also impeached
Petrocelli by confronting him with various inconsistencies
between his statements and his trial testimony.

    Petrocelli contends that he invoked his right to counsel on
April 19, and that his statements taken on that date and
thereafter were therefore taken in violation of his Fifth and
Sixth Amendment rights. Petrocelli’s counsel was appointed
on April 20 but was not present at the interrogations on April
20 and 27. Assuming without deciding that Petrocelli’s Fifth
or Sixth Amendment right was violated, the rule is well
established that a voluntary statement taken in violation of the
Fifth or Sixth Amendment may be used for impeachment.
See Michigan v. Harvey, 494 U.S. 344, 345–46 (1990);
United States v. Gomez, 725 F.3d 1121, 1125–26 (9th Cir.
2013). Because the State used the statements at issue only for
impeachment, Petrocelli’s contention fails.

    Petrocelli next contends that his April 20 and 27
statements were involuntary and thus that their admission was
unconstitutional.     Statements are unconstitutionally
involuntary when a “‘defendant’s will was overborne’ by the
circumstances surrounding the giving of a confession.”
26                  PETROCELLI V. BAKER

Dickerson v. United States, 530 U.S. 428, 434 (2000)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973)).

    Petrocelli contends that his statements were involuntary
because they were “obtained by inducements.” “Inducements
to cooperate are not improper . . . unless under the total
circumstances it is plain that they have overborne the free
will of the suspect.” United States v. Okafor, 285 F.3d 842,
847 (9th Cir. 2002). Here, there is no indication that
Petrocelli’s will was overborne. Before making statements
on April 20, Petrocelli told officers he had several
“preconditions.” Sergeant Dickson testified that Petrocelli
was told that they would do what they could, but that no
promises were made. His interrogators’ partial compliance
with his preconditions, while perhaps an inducement to talk,
hardly constituted an overbearing of his will.

    Petrocelli also contends that his April 20 and 27
statements were involuntary because, on April 19, Sergeant
Barnes told him that he thought talking to the detectives
“could do . . . nothing but help.” In Henry v. Kernan,
197 F.3d 1021 (9th Cir. 1999), we held that a confession was
involuntary when the interrogating officer ignored a suspect’s
clear invocation of his right to counsel and stated, “Listen,
what you tell us we can’t use against you right now.” Id. at
1027. We noted that the officers’ refusal to cease questioning
in the face of repeated requests for counsel “generate[d] a
feeling of helplessness” and that the officers deliberately
violated Miranda in order to obtain a statement they could
use for impeachment purposes. Id. at 1028–29.

    The circumstances of the Henry interrogation are
significantly different from those of Petrocelli’s interrogation.
                   PETROCELLI V. BAKER                      27

As discussed above, Petrocelli never clearly invoked his right
to counsel on April 19. When Petrocelli was asked if he was
requesting a lawyer, he responded “no.” The officers’
attempts to clarify whether Petrocelli was invoking his rights
differentiate the April 19 interrogation from the Henry
interrogation, both because they likely reduced the feeling of
helplessness that concerned us in Henry and because they
suggest the detectives were not attempting deliberately to
violate Miranda.        Considering the totality of the
circumstances, Sergeant Barnes’ remark was not sufficiently
coercive to render Petrocelli’s April 20 and 27 statements
involuntary.

   3. Jury Instruction on Premeditation and Deliberation

    Petrocelli contends that the jury instruction defining
“premeditation” and “deliberation” violated due process by
collapsing the two requirements and relieving the State of its
burden of proving that the killing was both deliberate and
premeditated. See Byford v. State, 994 P.2d 700, 712–15
(Nev. 2000); Polk v. Sandoval, 503 F.3d 903, 910–11 (9th
Cir. 2007), overruled in part by Babb v. Lozowsky, 719 F.3d
1019, 1028–30 (9th Cir. 2013). The district court concluded
that Petrocelli had not exhausted this claim and required
Petrocelli either to abandon the claim or risk dismissal of his
petition. Faced with this choice, Petrocelli filed a notice of
abandonment “of all unexhausted claims.” Petrocelli
contends that the district court erroneously determined that
the claim was unexhausted.

    “Exhaustion requires the petitioner to ‘fairly present’ his
claims to the highest court of the state.” Cooper v. Neven,
641 F.3d 322, 326 (9th Cir. 2011) (quoting O’Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999)). Petrocelli raised this
28                  PETROCELLI V. BAKER

jury instruction claim in his third state habeas petition, but he
did not appeal the state district court’s denial of the claim to
the Nevada Supreme Court. Petrocelli argues that his failure
to appeal to the Nevada Supreme Court should be excused,
contending that he could not have raised the claim until our
decision in Polk in 2007, when we held that a jury instruction
collapsing the premeditation and deliberation elements of
first-degree murder violates the Due Process Clause. Polk,
503 F.3d at 904. This argument is unpersuasive in light of
Petrocelli’s having raised this claim in the state district court,
before we decided Polk, and in light of his assertion that this
claim was based “on clearly established and long existing
federal law, namely Sandstrom v. Montana, 442 U.S. 510
(1979) and Francis v. Franklin, 471 U.S. 307 (1985).”

               B. Penalty Phase Estelle Claim

    Petrocelli makes several penalty phase claims. In one of
them, he contends that Dr. Gerow’s testimony violated his
Fifth and Sixth Amendment rights, articulated in Estelle v.
Smith, 451 U.S. 454 (1981). We agree with this contention,
and on that basis grant the writ as to the death penalty. We
therefore do not reach Petrocelli’s other penalty phase claims.

                           1. Waiver

    The district court held that Petrocelli’s Estelle claim was
neither unexhausted nor procedurally defaulted, and that the
Nevada Supreme Court denied it on the merits. On appeal to
us, the State does not contest this holding. See Robinson v.
Lewis, 795 F.3d 926, 934 (9th Cir. 2015) (holding that a
petitioner waived an argument by failing to dispute the
district court’s rejection of the argument in his briefing on
appeal).
                    PETROCELLI V. BAKER                      29

    Petrocelli spends six pages of his opening brief to us
arguing that the admission of Dr. Gerow’s testimony violated
Estelle. The State does not respond to Petrocelli’s Estelle
argument. In neither its answering brief nor its supplemental
brief does the State so much as cite Estelle, let alone respond
to Petrocelli’s argument. We therefore conclude that the
State has waived any defense to Petrocelli’s Estelle argument.

                          2. Estelle

    Even if the State had not waived its defense to Petrocelli’s
Estelle argument, we would hold that the admission of Dr.
Gerow’s testimony violated Estelle and that the violation was
not harmless.

                     a. Estelle Violation

     In Estelle, Dr. James Grigson was appointed by a Texas
trial court to examine capital defendant Ernest Smith to
determine his competency to stand trial. Grigson examined
Smith for about ninety minutes and determined that he was
competent. Grigson gave no Miranda warning to Smith
during the course of the examination. At the time of the
examination, Smith’s Sixth Amendment right to counsel had
attached. Grigson did not notify Smith’s attorney that he
would examine his client.

    Dr. Grigson testified, over objection, during the penalty
phase of Smith’s trial as to his future dangerousness. He
testified that Smith was “a very severe sociopath”; that Smith
“will continue his previous behavior”; that Smith’s
sociopathic condition will “only get worse”; and that there “is
no treatment, no medicine . . . that in any way at all modifies
or changes this behavior.” 451 U.S. at 459–60 (alteration in
30                  PETROCELLI V. BAKER

original) (internal quotation marks omitted).         The jury
returned a verdict of death.

     The Supreme Court held that Dr. Grigson’s testimony
violated the Fifth and Sixth Amendments. The Court held
that the Fifth Amendment privilege against self-incrimination
applied, and that Miranda warnings were required because
“Dr. Grigson’s prognosis as to future dangerousness rested on
statements [Smith] made . . . in reciting the details of the
crime.” Id. at 464. “When Dr. Grigson went beyond simply
reporting to the court on the issue of competence and testified
for the prosecution at the penalty phase on the crucial issue of
respondent’s future dangerousness, his role . . . became
essentially like that of an agent of the State.” Id. at 467. The
Court held that the Sixth Amendment right to counsel applied
because “adversary judicial proceedings” had been initiated
against Smith, and that Grigson’s interview was a “critical
stage” of the proceedings. Id. at 469–70. “[Smith] was
denied the assistance of his attorneys in making the
significant decision of whether to submit to the examination
and to what end the psychiatrists’s findings could be
employed.” Id. at 471.

    Estelle was decided in May 1981. Dr. Gerow interviewed
Petrocelli in Washoe County Jail almost a year later, in April
1982. Petrocelli’s trial took place during the last week of July
and first week of August 1982.

    In addressing Petrocelli’s third petition for post-
conviction relief, the state district court heard testimony from
Dr. Gerow and from defense counsel Wishart, and received
into evidence the Washoe County Jail visitors’ log and
Gerow’s April 27 letter to Prosecutor Laxalt. In rejecting a
claim of ineffective assistance of counsel, the court made
                    PETROCELLI V. BAKER                       31

factual findings directly relevant to Petrocelli’s Estelle claim.
The court wrote:

        The sequence of events appears to be as
        follows: Petitioner sought a psychiatrist on
        April 20, 1982. Laxalt briefed Gerow on
        April 21, and on that date, [Gerow]
        interviewed the Petitioner. Defense Attorney
        Wishart and Investigator Ford also
        interviewed Petitioner on April 21, 1982
        subsequent to an appointment in the justice
        court on that date. It is not clear as to whether
        the doctor or the lawyer arrived at the jail
        first.

The court wrote, further, “Dr. Gerow and Prosecutor Laxalt
are not entirely clear nor consistent about the purpose for
which the doctor was hired. However, Gerow makes it clear
that he informed Petitioner that the interview was not
confidential and that he would see Petitioner again on an as-
needed basis.” The court concluded:

        Dr. Gerow’s understanding of his engagement
        was to determine Petitioner’s competency and
        to render some further treatment. . . . No
        reasonably effective trial or appellate counsel
        would conclude from this record that Dr.
        Gerow was a court-authorized psychiatrist nor
        an agent for the prosecutor.

    The state district court’s findings are “not fairly supported
by the record” and thus are not entitled to a presumption of
correctness. Silva, 279 F.3d at 835 (quoting former 28 U.S.C.
32                  PETROCELLI V. BAKER

§ 2254(d)(8)). Indeed, its findings are demonstrably wrong
in nearly every particular.

    First, it is not true that counsel for Petrocelli was
appointed on April 21, the day of Dr. Gerow’s interview.
Rather, the appointment was made the day before, on April
20.

    Second, it not true that there is an ambiguity “as to
whether the doctor or the lawyer arrived at the jail first.” The
visitors’ log at the Washoe County Jail is unambiguous.
Defense attorney Wishart and investigator Ford signed the
visitors’ log at about 1:50 pm. They left at about 2:20 pm.
Dr. Gerow signed the visitors’ log at about 3:50 pm.

    Third, it is not true that “[n]o reasonably effective . . .
counsel would conclude . . . that Dr. Gerow was . . . an agent
for the prosecutor.”        Gerow wrote “D.A.” in the
“relationship” box of the visitors’ log. Wishart knew Gerow
well. He testified in post-conviction proceedings that Gerow
had a “prosecution bias,” and that he never would have hired
him.

    Fourth, it is not true that Dr. Gerow “ma[de] clear that he
informed Petitioner . . . that he would see Petitioner again on
an as-needed basis.” Gerow informed Prosecutor Laxalt in
his April 27 letter that he would see Petrocelli on an “‘as
needed’ basis.” Gerow testified in state court post-conviction
proceedings that he meant “as needed by Mr. Laxalt.”

    Fifth, it is not true that “Dr. Gerow’s understanding of his
engagement was . . . to render some further treatment.”
Gerow never had any understanding that he would provide
treatment to Petrocelli. Petrocelli was under the illusion that
                    PETROCELLI V. BAKER                       33

Gerow had come to see him in response to his request for
psychiatric counseling, but Gerow was under no such illusion.

    The facts are that Prosecutor Laxalt asked Dr. Gerow to
visit Petrocelli in the Washoe County Jail to determine his
competency to stand trial. Gerow interviewed Petrocelli in
the jail in the late afternoon of April 21, shortly after defense
attorney Wishart and investigator Ford had visited him. The
Reno Justice Court had appointed the Washoe County Public
Defender’s office as counsel for Petrocelli the day before, on
April 20. Wishart and Ford’s names and signatures were on
line three of the visitors’ log of the jail, with the notation
“WCPD/ATT.” Gerow signed in as a visitor on line four of
the same page with the notation “D.A.” Wishart’s name and
capacity would have been easily visible to Gerow when he
signed in. Gerow never sought permission from Wishart to
evaluate Petrocelli. Laxalt never asked Gerow to provide
treatment to Petrocelli, and Gerow never provided any. On
April 27, Gerow wrote a letter to Laxalt reporting that he
believed Petrocelli to be competent, and volunteered to
provide further assistance to Laxalt “as needed.” Gerow
testified during the penalty phase of Petrocelli’s capital trial.
He testified, based on his interview with Petrocelli on April
21, that Petrocelli was dangerous and not treatable. Gerow’s
final words during direct examination were, “There is no
cure.”

    The parallels between Estelle and this case are striking.
Dr. Grigson, like Dr. Gerow in this case, visited the defendant
in jail to determine his competency to stand trial. Grigson,
like Gerow, failed to provide Miranda warnings. Grigson,
like Gerow, was acting as an agent of the state. Indeed, the
case against Gerow’s testimony is even stronger than against
Grigson’s, for Grigson was appointed by the court, whereas
34                    PETROCELLI V. BAKER

Gerow was acting at the request of the prosecutor. The
defendant in Estelle, like Petrocelli, already had appointed
counsel. Grigson, like Gerow, did not seek or obtain
permission from defendant’s counsel to visit or evaluate his
client. Grigson, like Gerow, testified during the penalty
phase of defendant’s trial that the defendant was incurable.

     We conclude from the foregoing that the admission of Dr.
Gerow’s testimony during the penalty phase of Petrocelli’s
trial was a flagrant violation of his Fifth and Sixth
Amendment rights under Estelle.1

                        b. Harmless Error

    An “error of the trial type” is not harmless if it “had
substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). “There must be more than a ‘reasonable possibility’
that the error was harmful.” Davis v. Ayala, 135 S. Ct. 2187,
2198 (2015) (quoting Brecht, 507 U.S. at 637). “[R]elief is
appropriate only if the prosecution cannot demonstrate
harmlessness.” Id. at 2197. Where a judge “is in ‘grave
doubt as to the harmlessness of the error, the habeas
petitioner must win.’” Pensinger v. Chappell, 787 F.3d 1014,
1029 (9th Cir. 2015) (quoting California v. Roy, 519 U.S. 2,


     1
      Even if the introduction of Dr. Gerow’s testimony could be
understood as a rebuttal of Petrocelli’s psychological evidence that
suggested that Petrocelli would benefit from treatment, see Buchanan v.
Kentucky, 483 U.S. 402, 422–23 (1987), the admission of the testimony
would still violate the Sixth Amendment because Petrocelli’s counsel
never received notice of the examination, see Powell v. Texas, 492 U.S.
680, 685 (1989) (per curiam).
                   PETROCELLI V. BAKER                     35

5 (1996) (per curiam)). We conclude that the Estelle error
was not harmless.

    The jury knew that Petrocelli had committed two
murders. He was on trial for murdering James Wilson, and
the jury had been told that he had also murdered Melanie
Barker. Maureen Lawler, Barker’s mother, testified at the
penalty phase as to the circumstances of the three-day
kidnaping in Washington State. Petrocelli was death-eligible
because when he killed Wilson he had already been convicted
of kidnaping Barker. The jury had ample basis, both legal
and emotional, for imposing a capital sentence. The question
before us is whether it would have done so absent Dr.
Gerow’s testimony. The precise question is whether there
was “more than a ‘reasonable possibility’” that the jury would
have imposed a life sentence if it had not heard Gerow’s
testimony. Davis, 135 S. Ct. at 2198 (quoting Brecht,
507 U.S. at 637). The burden is on the State to demonstrate
that there was not such a possibility.

    In any capital case, particularly if a defendant might
eventually be released from prison, a central question at
sentencing is whether the defendant is likely to kill again.
We put to one side the report of Dr. Petrich, who evaluated
Petrocelli before he killed Wilson and Barker. Not counting
Petrich’s report, there was evidence from three medical
professionals who diagnosed Petrocelli, assessed his
dangerousness, and evaluated his amenability to treatment.

    Dr. Gutride reported that Petrocelli “cried openly” during
his interview, and that his “distraught behavior had the
quality of his practically begging for help.” He reported that
Petrocelli “desperately want[ed] to know what is the matter
with him” and told Gutride that he had “called crisis lines in
36                 PETROCELLI V. BAKER

every city, but [had] been unable to get any help.” Gutride
observed that “[t]he personal distress [Petrocelli] exhibited
during the interview seems genuine” and that Petrocelli “may
truly desire some mental health treatment.” Gutride wrote
that Petrocelli’s “ability to profit from such treatment is
questionable” because of his distrust of others, and he
concluded that “treatment should be offered in a setting
where the client can be closely monitored.” In his live
testimony, Gutride stated that his diagnosis did not “imply an
individual is unable to think properly or conduct themselves
conventionally. It relates mostly to a style of living.”

    Dr. Chappel reported that Petrocelli “repeatedly asked for
help” while in jail in Seattle and that Petrocelli attempted to
commit suicide while there. Chappel reported that Petrocelli
“viewed the experience as one of asking for help and not
getting it.” Petrocelli “expresse[d] a wish for further
evaluation or treatment so he [could] find out whether or not
he killed on purpose.” Chappel concluded that “a more
extensive evaluation” would be useful in order for Petrocelli
“to have a better understanding of the reasons for his loss of
impulse control and his reason for killing someone who was
close to him.” Chappel wrote that “[a] period of evaluation
and a trial of treatment might serve a useful purpose in
preventing any further homicidal outbursts of rage on his
part.”

    Both Dr. Gutride and Dr. Chappel concluded that
Petrocelli wanted mental health treatment, and that he felt
that he had sought and been denied such treatment. Both
doctors held out the possibility of treatment. Gutride
acknowledged that Petrocelli’s ability to profit from treatment
was “questionable” because of his distrust of others, but he
did not state that Petrocelli was untreatable. Rather, he
                   PETROCELLI V. BAKER                      37

recommended that Petrocelli be “closely monitored” during
treatment. Chappel stated that treatment could be useful both
for Petrocelli’s own understanding and in order to prevent
“further homicidal outbursts.”

    Dr. Gerow’s testimony was inconsistent with the reports
of Drs. Gutride and Chappel. Gerow stated unequivocally
that Petrocelli was dangerous and would always remain so.
He testified that Petrocelli had a psychopathic personality for
which there is “no treatment at all.” He elaborated, “A
psychiatrist doesn’t treat the condition because it’s not
treatable.” Gerow’s last words on direct examination were,
“There is no cure.”

    Dr. Gerow’s live testimony likely had a greater impact on
the jury than the analyses of Drs. Gutride and Chappel.
Defense counsel Wishart chose not to put Gutride and
Chappel on the stand, submitting only their written reports.
Prosecutor Laxalt called Gutride to the stand in an attempt to
undermine his diagnosis and assessment of dangerousness on
the ground that Petrocelli had “faked ‘bad’” when taking
formal intelligence tests. Gutride insisted that his diagnosis
was correct, and that the diagnosis did not “imply an
individual is unable to think properly or conduct themselves
conventionally.” Gutride’s live testimony was very short,
occupying not quite two pages of transcript. His testimony
was followed directly by Gerow’s more extensive live
testimony that conflicted with Gutride and Chappel’s written
reports and Gutride’s brief testimony. See Satterwhite v.
Texas, 486 U.S. 249, 259–60 (1988) (referring to a
psychiatrist’s testimony that defendant was “beyond . . .
rehabilitation” as his “most devastating” statement).
38                     PETROCELLI V. BAKER

    The effect of Dr. Gerow’s testimony was magnified by
Jury Instruction 5, quoted above. Jury Instruction 5 indicated
to the jury that even if it sentenced Petrocelli to life without
parole, he might nonetheless be released by the Nevada Board
of Pardon Commissioners.2 Prosecutor Laxalt made sure that
the jury understood the implications of Jury Instruction 5. In
closing argument he emphasized Dr. Gerow’s testimony that
Petrocelli was an incurable psychopath, and the possibility of
Petrocelli’s release on parole:

             He will never change. There is no cure for
         being a psychopath. . . . Should the
         community bear the risk of ever having this
         defendant on the street again, walking free, on
         the run?

              ...

            [N]o society, no community, no county,
         no city, no state, should ever have to risk
         again Tracy Petrocelli on the street.

              ...

            I ask you to consider years down the road
         when the decisions are being made at the
         Pardons Board and the Parole Board and we

     2
        In Sechrest v. Ignacio, 549 F.3d 789, 810 (9th Cir. 2008), we held
in a Nevada capital case that an instruction identical to Jury Instruction 5
was unconstitutional because it was inaccurate. At the time of Sechrest’s
trial, “an individual who [was] on probation at the time he commit[ed]
another offense . . . [was] not eligible for parole by the Parole Board on
that offense.” Id. at 810. We do not reach the question whether Jury
Instruction 5 was constitutional at the time of Petrocelli’s trial.
                    PETROCELLI V. BAKER                       39

        have all gone our separate ways and Mr.
        Petrocelli is there, the sole person applying
        for the pardon or applying for parole crying
        tears of remorse and telling the people how it
        wasn’t he who was the murderer of Mr.
        Wilson it was an accident and he got
        railroaded, and telling people that it wasn’t he
        who was the murderer of Melanie it was an
        accident, and he was railroaded. . . .
        Rehabilitation to be imposed in this case?
        That’s a sad fact, but it’s to be faced.

    It is possible that Petrocelli has not preserved, on appeal
to us, his ability to challenge the district court’s dismissal of
Claim 4, challenging Jury Instruction 5. But whether
Petrocelli may now challenge the instruction is irrelevant to
the harmlessness of the Estelle violation. In determining
harmlessness, the question before us is not the
constitutionality of the instruction but rather its effect on the
improper admission of Dr. Gerow’s testimony. Whether Jury
Instruction 5 is constitutional or not, its effect on Gerow’s
improperly admitted testimony is the same.

    We have encountered Dr. Gerow before. He testified for
the prosecution in Sechrest in very much the same manner he
testified for the prosecution in the case before us. Gerow
testified that Sechrest “was an incurable sociopath” who was
“extremely dangerous and could not be rehabilitated.”
Sechrest, 549 F.3d at 813. We held in Sechrest that the
combined effect of Gerow’s testimony and an instruction
identical to Instruction 5 “had a substantial influence on the
jury’s decision to sentence Sechrest to death.” Id. We
similarly conclude, in this case, that Gerow’s improperly
admitted testimony, understood in the light of Jury Instruction
40                  PETROCELLI V. BAKER

5, “had [a] substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 637
(quoting Kotteakos, 328 U.S. at 776). Because there was
“more than a ‘reasonable possibility’” that the jury would
have imposed a life sentence absent the Estelle error, the error
was not harmless. Davis, 135 S. Ct. at 2198 (quoting Brecht,
507 U.S. at 637).

                         Conclusion

    We affirm the district court’s denial of Petrocelli’s
petition for a writ of habeas corpus with respect to the
conviction, but reverse with respect to the death sentence.
We remand with instructions to grant the writ as to the
penalty unless, within a reasonable time, the State grants a
new penalty phase trial or imposes a lesser sentence
consistent with the law.

  AFFIRMED in part, REVERSED in part, and
REMANDED.



CHRISTEN, Circuit Judge, concurring:

    I agree that Petrocelli’s death sentence must be reversed.
I write separately because, in my 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. See Brecht v. Abrahamson,
507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and
especially egregious trial error, or one that is combined with
a pattern of prosecutorial misconduct, might warrant habeas
                    PETROCELLI V. BAKER                        41

relief, even if the jury’s verdict is not substantially
influenced). Brecht’s footnote nine is rarely employed, but
the Fifth and Seventh Circuits have each relied on it one time
in cases where an error (or errors) did not easily fit into either
the “structural error” or “trial error” category. The errors in
Petrocelli’s case were equally pervasive, flouted Supreme
Court authority, and undermined the integrity of the criminal
justice process.

    Tracy Petrocelli’s trial, from voir dire to the death penalty
verdict, lasted just ten days (July 26–30, 1982; August 2–6,
1982). The penalty phase took one day. The introduction of
evidence began at 11:30 AM on August 6, and the jury’s
verdict, a death sentence, was returned at 10:52 PM. The
defense introduced brief psychiatric reports but only called
Petrocelli to testify. The prosecution called Dr. Gerow, a
psychiatrist, to testify about Petrocelli’s mental condition.
The majority opinion thoroughly and persuasively explains
how the prosecutor procured Dr. Gerow’s testimony and why
the prosecutor’s conduct was a flagrant violation of Estelle v.
Smith, 451 U.S. 454 (1981) (holding that a psychiatrist’s
testimony about the defendant’s future dangerousness in a
capital felony trial violated the defendant’s Fifth and Sixth
Amendment rights where the defendant was not given
Miranda warnings before his psychiatric examination).

    A separate layer of error also infected this trial because
the State’s Estelle violation dovetailed with an inflammatory
jury instruction. Specifically, the trial court told the jury that
“[u]nder the laws of the State of Nevada, . . . [t]he State
Board of Pardon Commissioners . . . would have the power to
modify any sentence at a later date.” The prosecution told the
jury that Petrocelli might someday walk the streets “[a]mong
ordinary people” and “kill again” if the jury did not sentence
42                 PETROCELLI V. BAKER

him to death. The context and nature of these combined
errors and misconduct so infected the integrity of the
proceedings as to defy categorization and the typical
harmlessness analysis.

     Brecht’s harmless-error standard applies on collateral
review of federal constitutional trial errors. See Brecht,
507 U.S. at 622. Typically, “[t]rial error ‘occur[s] during the
presentation of the case to the jury,’ and is amenable to
harmless-error analysis because it ‘may . . . be quantitatively
assessed in the context of other evidence presented in order
to determine [the effect it had on the trial].’” Id. at 629
(alterations in original) (quoting Arizona v. Fulminante,
499 U.S. 279, 307–08 (1991)). Prosecutorial misconduct is
trial error. See Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.
2012). “At the other end of the spectrum of constitutional
errors lie ‘structural defects in the constitution of the trial
mechanism, which defy analysis by harmless-error
standards.’” Brecht, 507 U.S. at 629 (quoting Fulminante,
499 U.S. at 309). Structural errors, such as the deprivation of
the right to counsel, “infect the entire trial process” and
require automatic reversal of the conviction. Id. at 629–30;
see also Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir.
1994) (stating that unlike trial errors, structural errors “may
not be considered harmless”).

    “Not every error, however, is easily shoe-horned into one
of those neat categories.” United States v. Harbin, 250 F.3d
532, 544 (7th Cir. 2001). “The nature, context, and
significance of the violation, for instance, may determine
whether automatic reversal or the harmless error analysis is
appropriate.” Id. (internal quotation marks and citation
omitted). In footnote nine of Brecht, the Supreme Court left
open the possibility “that in an unusual case, a deliberate and
                    PETROCELLI V. BAKER                        43

especially egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as to warrant the
grant of habeas relief, even if it did not substantially influence
the jury’s verdict.” 507 U.S. at 638 n.9. “This hybrid,
[f]ootnote [n]ine error as we denominate it, is thus
assimilated to structural error and declared to be incapable of
redemption by actual prejudice analysis.” Hardnett, 25 F.3d
at 879. “The integrity of the trial, having been destroyed,
cannot be reconstituted by an appellate court.” Id.

    In Petrocelli’s case, the first error arose when the
prosecutor used a psychiatrist to interview Petrocelli without
informing his lawyer or advising him of his right to remain
silent. The Supreme Court held in Estelle that the
prosecution may not rely on statements made by a defendant
during a psychiatric examination to prove future
dangerousness if the defendant was not apprised of his
Miranda rights and was denied the assistance of his counsel
in deciding whether to submit to the examination. 451 U.S.
at 467–71 (“When Dr. Grigson went beyond simply reporting
to the court on the issue of competence and testified for the
prosecution at the penalty phase on the crucial issue of
respondent’s future dangerousness, his role changed and
became essentially like that of an agent of the State
recounting unwarned statements made in a postarrest
custodial setting.”). Decided in May of 1981, Estelle had
been on the books for about a year when the state prosecutor
enlisted Dr. Gerow to interview Petrocelli, and it had been
controlling law for about fifteen months by the time the
prosecutor called Dr. Gerow to testify. Despite Estelle’s clear
rule that the government may not circumvent Miranda by
using a health care professional as an agent to interview a
defendant without the benefit of defense counsel, the
44                  PETROCELLI V. BAKER

prosecutor responded to Petrocelli’s request for psychiatric
help by sending Dr. Gerow to the jail to interview Petrocelli
under the pretense of providing mental health counseling.
There is no question that the prosecutor’s goal was to use the
result of the interview to prosecute Petrocelli, not to respond
to Petrocelli’s request for mental health counseling. The
prosecutor later said as much, as did Dr. Gerow. It is equally
clear that Petrocelli could not have anticipated that the doctor
would testify for the prosecution.

    In state post-conviction proceedings, the prosecutor
testified and agreed that he asked Dr. Gerow to interview
Petrocelli because he was concerned about a possible
competency or insanity defense. The prosecutor testified that
he “want[ed] to see what ma[de] [Petrocelli] tick,” and also
candidly admitted that he sent Dr. Gerow to interview
Petrocelli for “a dual purpose.” According to the prosecutor,
“Mr. Petrocelli wanted to see a counselor, a psychiatrist. I
wanted him to be seen by one in order to make sure that we
had a competent defendant.” The prosecutor selected Dr.
Gerow, as opposed to another psychiatrist or psychologist,
because he “had a lot of trust in Dr. Gerow.” Despite the rule
from Estelle, the prosecutor recalled that he had not
instructed Dr. Gerow to tell Petrocelli that he was there at the
request of the prosecution, that he had not instructed Dr.
Gerow to advise Petrocelli of his Miranda rights, and that he
had not instructed Dr. Gerow about what to do if Petrocelli
mentioned that he was represented by counsel—all because
Dr. Gerow was supposedly seeing Petrocelli “jointly.”
Although the prosecutor described the interview as having a
“dual purpose,” defense counsel Lawrence Wishart denied
that there was any joint defense purpose for the interview. He
was not informed of the interview, nor consulted about the
selection of the expert. In fact, Wishart was familiar with this
                       PETROCELLI V. BAKER                              45

psychiatrist, and he testified that he would not have hired Dr.
Gerow because he thought Dr. Gerow had “a prosecution
bias.”

    Dr. Gerow also testified in the post-conviction
proceedings. He described conferring with the prosecutor by
telephone before meeting with Petrocelli, and acknowledged
that he met with Petrocelli on April 21, 1982, at the
prosecutor’s request, to determine whether Petrocelli was
competent to stand trial and to assess Petrocelli’s ability to
distinguish right from wrong. Dr. Gerow doubted very much
that the prosecutor instructed him to advise Petrocelli of his
Miranda rights, and he was definite in his testimony that he
did not do so. He also confirmed that when he wrote in his
one-page letter report to the prosecutor that he would see
Petrocelli again “as needed,” he meant as needed by the
prosecution, not as needed by Petrocelli.1 In short, the record
shows that Dr. Gerow’s interview with Petrocelli had no
therapeutic purpose; it was arranged to advance the
prosecution’s case in blatant violation of Estelle.




    1
       Dr. Gerow’s report verifies that he examined Petrocelli at the
prosecutor’s request, that Petrocelli was cooperative and an able historian,
and that a mental status examination was performed. In seven lines of
text, a single paragraph summarizes Petrocelli’s social history from
childhood, his mental health history from childhood, and the impression
that he was not psychotic when interviewed. The letter then deems
Petrocelli competent to stand trial, and states that Dr. Gerow will see
Petrocelli again on an “as needed” basis.
46                      PETROCELLI V. BAKER

    The prosecution exploited its Estelle violation to full
advantage at trial.2 Having interviewed Petrocelli without
informing him of his Miranda rights and without notifying
Petrocelli’s counsel, Dr. Gerow told the jury that he had
diagnosed Petrocelli as “a psychopathic.” He testified that
although the “violence potential” of psychopaths “varies,” the
most concerning traits associated with psychopaths
(incurability, callousness, a high propensity for violence)
“describe[] [Petrocelli] quite well.” Dr. Gerow’s last
statement on direct examination went to Petrocelli’s future
dangerousness. He told the jury: “There is no cure.” The
prosecution’s closing argument summarized the reports of the
doctors who had evaluated Petrocelli, but relied most heavily
on Dr. Gerow’s testimony. The prosecutor adopted Dr.
Gerow’s terminology, referring to Petrocelli as “a . . .
psychopathic,” and ended his remarks about Petrocelli’s
“psychopathic” diagnosis by saying: “And we can go to Dr.
Gerow. . . . [T]he sad and terrifying fact is [Petrocelli] will
continue to do this.”



     2
       The State relies heavily on the Nevada Supreme Court’s ruling that
even if Petrocelli had properly preserved his claim that Dr. Gerow’s
interview violated Miranda v. Arizona, Petrocelli failed to show that it
prejudiced him in light of other compelling testimony about future
dangerousness. The State also repeats the Nevada trial court’s factual
errors and raises most of the arguments that the majority opinion
addresses: (1) the incorrect statement that Petrocelli had not yet been
appointed counsel when Dr. Gerow interviewed him; (2) the incorrect
statement that Dr. Gerow informed Petrocelli that he would see him again
on an “‘as needed’ basis”; (3) that it is not entirely clear for what purpose
Dr. Gerow saw Petrocelli (perhaps not as an agent of the prosecutor); and
(4) that any error was harmless because “[t]he jury heard other compelling
evidence about Petrocelli’s violent propensities during the guilt phase of
his trial.” Like the majority, I conclude that the State has not raised any
persuasive defense to the alleged Estelle violation.
                   PETROCELLI V. BAKER                     47

    To make matters worse, the prosecutor emphatically,
repeatedly, and definitively emphasized that Petrocelli could
someday be released if the jury did not sentence him to death.
The prosecutor asked the jury: “Should the community bear
the risk of ever having this defendant on the street again,
walking free, on the run?” He elaborated:

       What psychopath means, essentially, is a
       mean, bad person who has never changed and
       who will continue to victimize. . . . [N]o
       society, no community, no county, no city, no
       state, should ever have to risk again Tracy
       Petrocelli on the street. They should not have
       to risk their fathers or daughters, or their
       brothers or themselves, that he might take a
       fancy to killing them as he has done, as you
       see from the people in this case . . . .

In his rebuttal, the prosecutor continued:

       But ladies and gentlemen, I ask you to
       consider years down the road when the
       decisions are being made at the Pardons
       Board and the Parole Board and we have all
       gone our separate ways and Mr. Petrocelli is
       there, the sole person applying for the pardon
       or applying for parole crying tears of remorse
       and telling the people how it wasn’t he who
       was the murderer of Mr. Wilson it was an
       accident and he got railroaded, and telling
       people that it wasn’t he who was the murderer
       of Melanie it was an accident, and he was
       railroaded.
48                      PETROCELLI V. BAKER

    Contrary to these statements, Petrocelli categorically was
ineligible for parole under a statute passed by the Nevada
legislature just months before his sentencing because he was
on probation when he murdered James Wilson. Had the jury
sentenced Petrocelli to life in prison without the possibility of
parole, the prosecutor could not have known whether the
State Board of Pardon Commissioners (Board) would have
had the power to release him. See Nev. Rev. Stat.
§ 213.1099(4)(e) (prohibiting the reduction of a sentence to
one allowing parole if the convicted individual had “[failed]
in parole, probation, work release or similar programs”).3

    There is no question the prosecutor was aware that
Petrocelli was on probation and had failed in “similar
programs” at the time of this crime. Petrocelli had been
convicted of kidnaping and he had twice left a drug treatment
program. The prosecutor argued that Petrocelli’s previous
conviction for kidnaping should be treated as an aggravating
factor, and he cross-examined Petrocelli about leaving the
drug treatment program.

    On appeal, the State’s defense of Jury Instruction 5 and
the prosecutor’s unequivocal statement that Petrocelli could
be granted parole if not sentenced to death, is that, before the
statutory amendment, Nevada’s Board generally had the
authority to commute a sentence of life without the possibility
of parole. But Petrocelli was on probation at the time of this
crime and had twice absconded from a drug rehabilitation
program. The Nevada Supreme Court declined to grant


     3
       The implementation of § 213.1099(4) was contingent upon passage
of a constitutional amendment that was put to the voters three months after
Petrocelli’s sentencing, and the retroactivity of the statute had not yet been
determined.
                    PETROCELLI V. BAKER                      49

Petrocelli relief on the basis of Jury Instruction 5, but it
directed trial courts to tell future juries: “Life imprisonment
without the possibility of parole means exactly what it says,
that the Defendant shall not be eligible for parole.” Petrocelli
v. State, 692 P.2d 503, 511 (1985), holding modified after
statutory amendment by Sonner v. State, 930 P.2d 707 (1996).

    The backdrop for the prosecutor’s egregious Estelle trial
error was this definitive statement of Nevada law suggesting
the possibility of parole, which the prosecutor hammered
during closing argument. If this combination does not put
Petrocelli’s case in Brecht’s footnote nine category, the scale
certainly tips when one considers that these were not isolated
incidents or inadvertent mistakes. In September 1983, the
same prosecutor’s office called Dr. Gerow to testify about a
defendant’s future dangerousness during the penalty phase of
another death penalty case, Sechrest v. Ignacio, 549 F.3d 789,
798–99 (9th Cir. 2008). In Sechrest, Dr. Gerow was
originally hired by defense counsel but he switched sides to
become a prosecution witness. See id. at 816. Our decision
in that case explains that Dr. Gerow interviewed Sechrest
without giving him Miranda warnings or otherwise informing
the defendant or his counsel that he might testify for the
prosecution. See id. at 798–99. We concluded in Sechrest
that “Dr. Gerow’s testimony that [the defendant] was
extremely dangerous and could not be rehabilitated likely had
a substantial influence on the jury’s decision to sentence [the
defendant] to death.” Id. at 813.

    Further, Petrocelli’s trial was not the last capital case in
which this prosecutor’s office inaccurately represented that
the defendant categorically would be eligible for parole if the
jury did not impose the death sentence. In Sechrest, decided
after § 213.1099(4) became effective, the prosecution told the
50                  PETROCELLI V. BAKER

jury that “the Board of Pardon Commissioners could change
[the defendant’s] sentence,” id. at 798, and warned that if it
did not impose a death sentence, it was “risk[ing] the life of
some other person or child,” id. at 811 (alteration in original).
As a matter of fact and law, that was not true. Sechrest was
ineligible for parole because he was on probation at the time
he committed his offense, but an inaccurate jury instruction
“reinforced the prosecutor’s argument that the Board of
Pardon Commissioners was the entity responsible for
deciding Sechrest’s term of imprisonment.” Id. at 812.

    In Sechrest we held: “Bottom line: the prosecutor misled
the jurors to believe that if they did not impose the death
penalty, [the defendant] could be released on parole and
would kill again. In making his erroneous assertions, the
prosecutor . . . most likely inflamed the passions of the jury.”
Id. at 812. Sechrest establishes that this prosecutor’s office
had a game plan to disingenuously scare the jury about the
likelihood that the defendant might be released to walk
Reno’s streets again.

    In my view, Petrocelli’s appeal presents “the unusual case
where the combination of misconduct and error infected the
entire proceeding.” Hardnett, 25 F.3d at 880 (internal
quotation marks omitted). The prosecution’s misuse of Dr.
Gerow, coupled with the inflammatory and misleading
statements of Nevada law it used in at least two capital cases,
pushes this case across the line into footnote nine error of the
sort that led two other appellate courts to grant habeas relief.
See United States v. Bowen, 799 F.3d 336 (5th Cir. 2015);
United States v. Harbin, 250 F.3d 532, 545 (7th Cir. 2001).

    Bowen arose from the prosecution of five former police
officers involved in the killing of two unarmed men after
                    PETROCELLI V. BAKER                      51

Hurricane Katrina (the “Danziger Bridge shootings”) and an
alleged cover-up. Bowen, 700 F.3d at 339–40. Federal
prosecutors in charge of the case engaged in a series of
“ethical lapses” during the high-profile trial. Id. at 339.
Although the Fifth Circuit could not conclude that the
prosecutorial misconduct was “outcome-determinative,” id.
at 356, the court held that footnote nine error occurred when
prosecutors leaked confidential information, anonymously
posted on online news sources, and withheld information
from the district court, id. at 339–46, 353–54. According to
the Fifth Circuit: “The [prosecutors’] online commenting
alone, which breached all standards of prosecutorial ethics,
gave the government a surreptitious advantage in influencing
public opinion, the venire panel, and the trial itself.” Id. at
353. “This case thus presents the unclassifiable and pervasive
errors to which the Supreme Court referred in Brecht when it
identified a category of errors capable of infecting the
integrity of the prosecution to a degree warranting a new trial
irrespective of prejudice.” Id.

     The Seventh Circuit considered an egregious error that
similarly tipped the scales in favor of the prosecution in
Harbin. There, the prosecution, but not the defense, was
allowed to “save” a peremptory juror challenge until the sixth
day of an eight-day trial. See 250 F.3d at 537–39. Although
no one argued that the alternate juror who replaced the
excused juror was biased, the Seventh Circuit held that the
error defied the typical harmless error analysis, should be
treated as structural, and required reversal, in accord with the
“footnote nine exception.” See id. at 544–48. The Seventh
Circuit reasoned: “[T]he error was serious enough to effect
a shift in the total balance of advantages in favor of the
prosecution, which . . . could deprive defendants of a fair
trial.” Id. at 547.
52                 PETROCELLI V. BAKER

    So too here. The prosecutor’s Estelle violation and other
misconduct shifted the total balance of the penalty phase.
This misconduct was deliberate, and egregious, and it
compromised the integrity of the trial to a degree warranting
a new sentencing trial with or without a showing that the
errors actually influenced the jury’s verdict.

   For these reasons, I respectfully concur in the majority
opinion, but I would also grant habeas relief based on
Brecht’s footnote nine.
