FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM JAY GOLLEHON, No. 09-99011
Petitioner-Appellant,
v. D.C. No.
6:95-cv-00037-CCL
MICHAEL MAHONEY,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted
August 3, 2010—Portland, Oregon
Filed November 22, 2010
Before: Jerome Farris, Diarmuid F. O’Scannlain and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge O’Scannlain
18647
18650 GOLLEHON v. MAHONEY
COUNSEL
Michael Donahoe, Senior Litigator, Federal Defenders of
Montana, Helena, Montana, argued the cause for the
petitioner-appellant and filed briefs. With him on the briefs
was Anthony R. Gallagher, Federal Defender, Federal
Defenders of Montana, Helena, Montana.
John Paulson, Assistant Attorney General, Helena, Montana,
argued the cause for the respondent-appellee and filed a brief.
With him on the brief was Steve Bullock, Montana Attorney
General, Helena, Montana.
GOLLEHON v. MAHONEY 18651
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether a state court defen-
dant lacked fair notice as a matter of federal Constitutional
law that aiding and abetting a deliberate homicide would sub-
ject him to the death penalty in Montana.
I
A
On September 2, 1990, the badly beaten body of inmate
Gerald Pileggi was found lying in the exercise yard of the
Montana State Prison in Deer Lodge, Montana.1 Several wit-
nesses had seen inmates William Gollehon and Douglas Tur-
ner both strike Pileggi multiple times with baseball bats. An
autopsy revealed that Pileggi died from massive head injuries,
including a blow to the top of the head which had caved in
part of his skull, as well as a blow to the side of his face
which had collapsed his forehead, torn his brain, and ruptured
his eyeball.
Gollehon and Turner were jointly charged with deliberate
homicide for the beating death of Pileggi. The information
was later amended to add an alternative count of deliberate
homicide by accountability.2 The difference between these
counts, as explained by the Montana Supreme Court, is that
the “charge of deliberate homicide by accountability allowed
1
These facts are summarized from the Montana Supreme Court decision
affirming Gollehon’s conviction and sentence. See State v. Gollehon, 864
P.2d 249, 252-54 (Mont. 1993).
2
This second count alleged that “defendants, with the purpose to pro-
mote or facilitate the commission of the offense of deliberate homicide,
aided, abetted, or attempted to aid one another in the commission of the
offense of deliberate homicide of Gerald Pileggi by striking him on the
head with baseball bats.”
18652 GOLLEHON v. MAHONEY
the jury to convict both men involved in the deliberate homi-
cide without having to make the determination of who struck
the fatal blow.” State v. Gollehon, 864 P.2d 249, 261-62
(Mont. 1993) (“Gollehon I”). After a joint trial, the jury found
Gollehon and Turner guilty of deliberate homicide by
accountability. Both were sentenced to death.
B
On direct appeal, Gollehon argued that the trial court erred
by sentencing him to death for deliberate homicide by
accountability because no sentence for this crime was set by
statute. Id. at 264. A divided Montana Supreme Court rejected
this argument, holding that deliberate homicide by account-
ability is the same offense as deliberate homicide and there-
fore subject to the same penalties, including death. Id. at
264-65. The three dissenting justices contended that because
no statute explicitly makes death an available penalty for
deliberate homicide by accountability, the rule of lenity
required that a fallback sentencing provision for felonies with-
out a specified penalty should apply. Id. at 270-72 (Gray, J.,
dissenting).
After state post-conviction proceedings, Gollehon filed a
petition for a writ of habeas corpus in the federal district court
arguing that his right to due process was violated because he
lacked fair notice that deliberate homicide by accountability
is punishable by death in Montana. The district court held that
this claim was unexhausted and denied his petition on other
grounds. Although, on appeal to this court, we affirmed the
district court as to grounds it reached, we concluded that Gol-
lehon had “sufficiently presented the federal issue to the state
court.” Gollehon v. Mahoney, 259 F. App’x 1, 3 (9th Cir.
2007) (“Gollehon II”). Accordingly, we remanded this final
remaining claim to the district court for consideration on the
merits.
GOLLEHON v. MAHONEY 18653
On remand, the district court denied Gollehon’s motion for
summary judgment on the due process claim, dismissed the
habeas petition, and sua sponte denied a certificate of appeala-
bility (“COA”). See Gollehon v. Mahoney, 2009 WL 2148643
(D. Mont. July 15, 2009) (“Gollehon III”). Gollehon timely
applied to this court for a COA pursuant to 28 U.S.C.
§ 2253(c). After a round of briefing and argument, we now
GRANT Gollehon’s request for a COA as to the fair notice
claim3 and proceed to consider the merits.4 Slack v. McDaniel,
529 U.S. 473, 483 (2000).
Because Gollehon filed his habeas petition before the effec-
tive date of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), pre-AEDPA law applies. Lindh v. Murphy, 521
U.S. 320, 327 (1997). Accordingly, we review the district
court’s denial of habeas relief de novo and the district court’s
factual findings for clear error. Summerlin v. Schriro, 427
F.3d 623, 628 (9th Cir. 2005) (en banc). Under pre-AEDPA
law, we owe no deference to state-court rulings on questions
of constitutional law, since “we simply resolve the legal issue
on the merits, under the ordinary rules.” Id. at 628 (internal
quotation marks omitted). We presume the state court’s find-
ings of fact to be correct unless they are not fairly supported
by the record. Id. at 629.
II
[1] “Elementary notions of fairness enshrined in our con-
stitutional jurisprudence dictate that a person receive fair
3
We limit the COA to the question “[w]hether Petitioner’s right to due
process under the Fourteenth Amendment was violated since the relevant
Montana statutes and case law failed to provide sufficient notice that the
crime of homicide by accountability is punishable by the death penalty.”
Mot. for COA at 1.
4
Because the parties thoroughly argued the merits of the due process
claim in their briefing on the motion for a COA, as well as during the one-
hour oral argument we held on the motion, we agree that further briefing
and argument is unnecessary.
18654 GOLLEHON v. MAHONEY
notice not only of the conduct that will subject him to punish-
ment, but also of the severity of the penalty that a State may
impose.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574
(1996). To resolve Gollehon’s fair notice claim, we must
decide whether his death sentence for deliberate homicide by
accountability was so “unexpected and indefensible by refer-
ence to the law which had been expressed prior to the conduct
at issue” that it violated his right to due process under the
Fourteenth Amendment. Bouie v. City of Columbia, 378 U.S.
347, 354 (1964). “The beginning point for a Bouie analysis is
the statutory language at issue, its legislative history, and judi-
cial constructions of the statute.” Webster v. Woodford, 369
F.3d 1062, 1069 (9th Cir. 2004). Accordingly, we begin with
the text of the relevant statutes.5
[2] Section 45-2-301 of the Montana Code provides that
“[a] person is responsible for conduct that is an element of an
offense if the conduct is either that of the person himself or
that of another and he is legally accountable for the conduct
as provided in section 45-2-302, or both.” Mont. Code Ann.
§ 45-2-301 (1990).6 Section 45-2-302, in turn, provides that
“[a] person is legally accountable for the conduct of another
when . . . either before or during the commission of an offense
with the purpose to promote or facilitate the commission, the
person solicits, aids, abets, agrees, or attempts to aid the other
person in the planning or commission of the offense.” Id.
§ 45-2-302(3). Gollehon does not contest that because he
aided and abetted the killing of Gerald Pileggi, he is legally
accountable for deliberate homicide pursuant to section 45-2-
5
Although we are bound by the Montana Supreme Court’s interpretation
of Montana law, see Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per
curiam), our task is to determine whether its interpretation was so unex-
pected as to violate due process. As to this determination, we owe no def-
erence to the Montana Supreme Court. See McSherry v. Block, 880 F.2d
1049, 1053 (9th Cir. 1989).
6
All statutory references are to the Montana Code as it existed in 1990,
the year of Gollehon’s offense.
GOLLEHON v. MAHONEY 18655
302.7 We therefore consider whether section 45-2-301 pro-
vided Gollehon with fair notice that a person “responsible”
for an offense by way of accountability is subject to the pen-
alty specified for that offense.
[3] To determine the plain meaning of a statute, we tradi-
tionally refer to dictionaries in use at the time of the statute’s
enactment. See Lamar v. United States, 241 U.S. 103, 113
(1916). Because Montana’s accountability statutes were
enacted in 1973, we turn to various contemporaneous defini-
tions. The version of Black’s Law Dictionary in effect at the
time defined “responsible” as “[l]iable, legally accountable or
answerable.” Black’s Law Dictionary 1060 (4th ed. 1951).
Webster’s New Collegiate Dictionary defined “responsible”
as “liable to legal review or in the case of fault to penalties,”
and “liable to be called on to answer.” Webster’s New Colle-
giate Dictionary 986-87 (1973). Section 45-2-301 thus made
clear that a person who is “responsible” for an offense by way
of accountability is liable for that offense and must answer for
it by way of a penalty.
[4] Gollehon contends that the only applicable penalty was
Montana’s default penalty for felonies for which “no penalty
is otherwise provided,” i.e., up to 10 years in the state prison,
a fine of up to $50,000, or both. Mont. Code Ann. § 46-18-
213. But no penalty was specified for accountability because
accountability is not a separate offense requiring a separate
penalty. Rather, it is a theory of liability for an offense for
which penalties were already provided by the legislature.8 In
the case of deliberate homicide, the legislature unambiguously
7
Here, the relevant offense is deliberate homicide, which is committed
when a person “purposely or knowingly causes the death of another
human being.” Mont. Code Ann. § 45-5-102(1).
8
As such, accountability differs from inchoate offenses, which are dis-
tinct from their target crimes and therefore require their own penalty pro-
visions. See Mont. Code Ann. § 45-4-101(2) (solicitation); id. § 45-4-
102(3) (conspiracy); id. § 45-4-103(3) (attempt).
18656 GOLLEHON v. MAHONEY
provided for a penalty of death, life imprisonment, or 10-100
years’ imprisonment. Id. § 45-5-102(2). Consequently, we
conclude that Montana’s accountability statutes, together with
the deliberate homicide statute, made it “reasonably clear at
the relevant time” that Gollehon’s conduct would subject him
to the death penalty. United States v. Lanier, 520 U.S. 259,
267 (1997).
III
Although we believe that Montana’s criminal statutes,
standing alone, supplied all the fair notice that the Due Pro-
cess Clause requires, we proceed to consider whether prior
judicial decisions also contributed to such notice. See id.
(holding that the “touchstone” of the due-process inquiry “is
whether the statute, either standing alone or as construed”
provided fair notice (emphasis added)).
As an initial matter, we address Gollehon’s contention that
he lacked fair notice because “no decision of the Montana
Supreme Court (up until [his] case) even considered whether
an offender convicted of deliberate homicide by accountabil-
ity could be sentenced to death.” Mot. for COA at 12. “Due
process is not, however, violated simply because the issue is
a matter of first impression.” Ponnapula v. Spitzer, 297 F.3d
172, 183 (2d Cir. 2002). So long as “prior decisions gave rea-
sonable warning” that the law would be applied in a certain
way, they need not present a “fundamentally similar” factual
scenario. Lanier, 520 U.S. at 269 (internal quotation marks
omitted); see also Rose v. Locke, 423 U.S. 48, 51 (1975) (per
curiam) (noting that “the existence of previous applications of
a particular statute to one set of facts” is not required to sur-
vive a “lack-of-fair-warning challenge”).
[5] Here, prior decisions gave Gollehon reasonable warn-
ing that aiding and abetting a deliberate homicide would sub-
ject him to the death penalty.9 For example, in Matter of
9
“Because the Bouie analysis focuses on notice to the defendant, we
look only to cases decided before the crime was committed.” Clark v.
Brown, 450 F.3d 898, 912 (9th Cir. 2006).
GOLLEHON v. MAHONEY 18657
B.D.C., 687 P.2d 655 (Mont. 1984), the Montana Supreme
Court explained that accountability “is merely a conduit by
which one is held criminally accountable for the acts of anoth-
er.” Id. at 657. As such, accountability is not a “separate
offense” from “the underlying offense which has been physi-
cally committed by another, but for which the defendant is
equally responsible.” Id.; accord State v. Zadick, 419 P.2d
749, 751 (Mont. 1966) (holding that aiding and abetting a
crime is merely a “different way[ ] of committing that
crime”). The Montana Supreme Court put Gollehon on notice
that a conviction of deliberate homicide by accountability
would make him “liable as a principal actor in that homicide”
and, accordingly, subject to the death penalty. Gollehon I, 864
P.2d at 266.
Moreover, prior to Gollehon’s offense, the Montana
Supreme Court had explicitly adopted the Illinois Supreme
Court’s construction of Illinois’s accountability provisions,
from which Montana’s provisions were adopted. See State v.
Oppelt, 580 P.2d 110, 114 (Mont. 1978); State v. Murphy, 570
P.2d 1103, 1105 (Mont. 1977). By 1983, the Illinois Supreme
Court “ha[d] already held that the death penalty may be con-
stitutionally imposed for murder convictions based on
accountability.” People v. Garcia, 454 N.E.2d 274, 284 (Ill.
1983); see also People v. Ruiz, 447 N.E.2d 148, 154 (Ill.
1983) (affirming death sentence for defendant convicted of
murder by accountability). These Illinois cases provided fur-
ther notice to Gollehon that a conviction under an account-
ability theory would not automatically immunize him from
the death penalty. See Locke, 423 U.S. at 52 (concluding that
“the Tennessee Supreme Court had given sufficiently clear
notice” that it would follow Maine’s construction of a statute
“which the Tennessee court had at that point twice equated
with its own”).
[6] Numerous Montana decisions also made clear that per-
sons convicted of felonies by accountability did not receive
the 10-year and/or $50,000 default penalty set forth in section
18658 GOLLEHON v. MAHONEY
46-18-213, which Gollehon claims was applicable. See, e.g.,
State v. Senn, 795 P.2d 973, 974 (Mont. 1990) (20 years for
forgery by accountability); State v. Randall, 772 P.2d 868,
869 (Mont. 1989) (15 years for robbery by accountability),
overruled on other grounds by State v. Ayers, 68 P.3d 768
(Mont. 2003); State v. Holzapfel, 748 P.2d 953, 954 (Mont.
1988) (20 years for sale of dangerous drugs by accountabil-
ity), overruled on other grounds by State v. Hardaway, 36
P.3d 900 (Mont. 2001); State v. Riley, 649 P.2d 1273, 1274
(Mont. 1982) (20 years suspended for deliberate homicide by
accountability); State v. Powers, 645 P.2d 1357, 1360 (Mont.
1982) (same).10 Furthermore, Gollehon can point to no pub-
lished case in which a defendant was sentenced to the default
penalty for any felony, let alone felonies by accountability.
We therefore reject the contention that Gollehon reasonably
expected to receive the default penalty for aiding and abetting
a deliberate homicide. See Free v. Peters, 12 F.3d 700,
702-03 (7th Cir. 1993) (rejecting a murderer’s fair-notice
challenge to his death sentence given that “there were no pub-
lished decisions supporting [his] interpretation” of the felony-
murder statute).
IV
We next consult the history of Montana’s treatment of aid-
ers and abettors to determine whether the death penalty was
an unfair surprise to Gollehon.
At common law, the participants in a felony were classified
into the following categories:
10
Gollehon attempts to distinguish Powers on the ground that the defen-
dants were also “charged directly with, and apparently convicted of, the
offense of deliberate homicide” rather than deliberate homicide by
accountability. Mot. for COA at 11. The dissent in Powers explains, how-
ever, that “the State, its counsel realizing that Jennifer Denise Gill did not
participate in the critical beatings that brought about the death, tried its
case . . . on the basis of accountability, sections 45-2-301 and -302.” 645
P.2d at 1364 (Sheehy, J., dissenting).
GOLLEHON v. MAHONEY 18659
(1) first-degree principals, those who actually com-
mitted the crime in question; (2) second-degree prin-
cipals, aiders and abettors present at the scene of the
crime; (3) accessories before the fact, aiders and
abettors who helped the principal before the basic
criminal event took place; and (4) accessories after
the fact, persons who helped the principal after the
basic criminal event took place.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007). Gen-
erally, “a person in any one of the four categories could be
convicted and subjected to the penalties authorized for com-
mission of the felony.” 2 Wayne R. LaFave & Austin W.
Scott, Substantive Criminal Law § 6.6 (1986); see also 4 Wil-
liam Blackstone, Commentaries *39 (explaining that “the
general rule” is “that accessories shall suffer the same punish-
ment as their principals: if one be liable to death, the other is
also liable”); United States v. Gooding, 25 U.S. 460, 469
(1827) (“[I]t is the known and familiar principle of criminal
jurisprudence, that he who commands, or procures a crime to
be done, if it is done, is guilty of the crime, and the act is his
act.”); State v. Geddes, 55 P. 919, 925 (Mont. 1899) (“[T]he
common law of crimes makes no distinction in the punish-
ment between a principal and an accessory; the offense of
each being felony, of which the penalty was originally
death.”).
[7] Montana, like “all States and the Federal Government,”
has “expressly abrogated the distinction among principals and
aiders and abettors in the second and third categories” and
“treats those who fall into the first three categories alike.”11
11
Accessories after the fact are now considered a separate category. See
LaFave & Scott, supra, § 6.6 (explaining that “the accessory after the fact,
by virtue of his involvement only after the felony was completed, [is] not
truly an accomplice in the felony,” and is therefore subjected “to different
and lesser penalties”); see also id. § 6.9 (“Unlike the principal in the sec-
ond degree and accessory before the fact, the accessory after the fact is
generally not treated as a party to the felony nor subject to the same pun-
ishment prescribed for the felony.”).
18660 GOLLEHON v. MAHONEY
Duenas-Alvarez, 549 U.S. at 189-90; see also id. at 195 App.
A (citing Mont. Code Ann. §§ 45-2-301, 45-2-302); Mont.
Code Ann. § 45-2-302 cmt. (noting that the precursors to sec-
tion 45-2-302 “had as their primary purpose the elimination
of the elaborate common law distinctions between principals
in the first degree, principals in the second degree, and the
accessories before the fact”). Cases spanning almost a century
before Gollehon’s offense provided ample warning that aiding
and abetting an offense is another way of committing that
offense, and is punished accordingly. See, e.g., In re
McMaster, 529 P.2d 1391, 1393 (Mont. 1974) (“[I]t is suffi-
cient to prove that appellant aided and abetted in the commis-
sion of the crime, thereby making appellant a principal and
guilty of that crime itself.”); Zadick, 419 P.2d at 751 (“[A]ll
persons concerned in the commission of a felony, whether
they directly commit the act constituting the offense, or aid
and abet its commission, . . . must be prosecuted, tried, and
punished as principals . . . .” (internal quotation marks omit-
ted)); State v. Simon, 247 P.2d 481, 485 (Mont. 1952) (“[I]t
is immaterial whether the proof shows that the accused actu-
ally was the perpetrator of the offense or whether he aided
and abetted. In either case he is a principal and may be tried
and convicted as such.”); State v. McClain, 246 P. 956,
958-59 (Mont. 1926) (“Our law provides that he who . . . aids,
assists, advises, or encourages shall be considered a principal,
and shall be punished accordingly.” (internal quotation marks
omitted)); State v. Gleim, 41 P. 998, 998 (Mont. 1895) (“Any
person who stands by, and aids, abets, or assists . . . shall be
deemed a principal offender, and shall be punished according-
ly.” (internal quotation marks omitted)).
[8] By “abandon[ing] completely the old common law ter-
minology and simply provid[ing] that a person is legally
accountable for the conduct of another when he is an accom-
plice of the other person in the commission of the crime,” sec-
tion 45-2-302 represents a “much more modern approach to
the entire subject of parties to crime.” LaFave & Scott, supra,
§ 6.6 & n.99 (citing Mont. Code Ann. § 45-2-302). This mod-
GOLLEHON v. MAHONEY 18661
ern approach does not purport, however, to alter the long-
standing rule that aiders and abettors are punishable to the
same extent as perpetrators. Indeed, the drafter’s comment to
section 45-2-302 explains that this provision “accepts the
approach of the existing law and endeavors to develop it in
full and systematic fashion.” Mont. Code Ann. § 45-2-302
cmt. The imposition of the death penalty in Gollehon’s case
thus comported with well-settled principles of accomplice lia-
bility.
V
The dissent in Gollehon I does not compel a contrary con-
clusion. The three dissenting justices contended that the
majority had erroneously focused on “the nature of ‘account-
ability’ rather than on Montana’s sentencing statutes.” Golle-
hon I, 864 P.2d at 270 (Gray, J., dissenting). Because these
statutes did not “clearly provide[ ] for the imposition of the
death penalty under these circumstances,” the dissent argued
that the rule of lenity required the application of the default
penalty. Id.
[9] The rule of lenity “is simply a canon of statutory con-
struction.” United States v. LeCoe, 936 F.2d 398, 402 (9th
Cir. 1991). As such, we have no power to apply it because we
are bound by the Montana Supreme Court’s determination
that there is no statutory ambiguity warranting its application.
See Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir. 1994). Fur-
thermore, even if we could apply it, we could do so only “if,
after considering text, structure, history, and purpose, there
remains a ‘grievous ambiguity or uncertainty in the statute.’ ”
Barber v. Thomas, 130 S. Ct. 2499, 2508 (2010) (quoting
Muscarello v. United States, 524 U.S. 125, 139 (1998)). We
cannot say, after “seizing every thing from which aid can be
derived,” that there remains any ambiguity, let alone grievous
ambiguity, as to the penalties applicable to aiders and abettors
in Montana. United States v. Nader, 542 F.3d 713, 721 (9th
Cir. 2008) (internal quotation marks omitted).
18662 GOLLEHON v. MAHONEY
Gollehon “has not pointed to anything in the federal
Constitution—other than, of course, the ‘fair notice’ guaranty,
which, we have just held, is satisfied here—that would
require a state court to apply the rule of lenity when interpret-
ing a state statute.” Sabetti, 16 F.3d at 19. Therefore, the dis-
sent in Gollehon I is of no assistance to him.
VI
[10] The relevant statutory text, decisional law, and centu-
ries of Anglo-American jurisprudence made it clear at the rel-
evant time that aiding and abetting an offense would subject
a person to the same penalty available for that offense, not a
separate and lesser penalty. Therefore, the Montana courts’
conclusion that deliberate homicide by accountability is a
death-eligible offense is far from a “radical and unforeseen
departure from former law,” but rather, a perfectly logical
extension of it. Webster, 369 F.3d at 1069 (internal quotation
marks omitted).
For the foregoing reasons, the judgment of the district court
denying Gollehon’s motion for summary judgment and dis-
missing Gollehon’s habeas petition is
AFFIRMED.