Sechrest v. Ignacio

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICKY DAVID SECHREST,  No. 04-99004
Petitioner-Appellant,
v.  D.C. No.
CV-N-92-0536-ECR
JOHN IGNACIO, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding

Argued and Submitted
February 15, 2007—Pasadena, California

Filed December 5, 2008

Before: Harry Pregerson, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

15975
 SECHREST v. IGNACIO 13979

COUNSEL

Franny A. Forsman, Tiffany R. Murphy, and Michael Pes-
cetta, Federal Public Defender’s Office, Las Vegas, Nevada,
for the petitioner-appellant.

George J. Chanos and David K. Neidert, Office of the Nevada
Attorney General, Reno, Nevada, for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge:

In this pre-AEDPA capital case, Ricky David Sechrest
appeals the denial of his third amended petition for a writ of
habeas corpus under 28 U.S.C. § 2254.1 We affirm in part,
reverse in part, and remand for further proceedings.
1
AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996,
altered the role of the federal habeas court in reviewing state prisoner
applications brought under 28 U.S.C. § 2254. See Bell v. Cone, 535 U.S.
685, 693 (2002). Under AEDPA, a federal court may reject a state court’s
13980 SECHREST v. IGNACIO
JURISDICTION

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

FACTUAL BACKGROUND

On May 14, 1983, twenty-two-year-old Ricky Sechrest kid-
napped and murdered ten-year-old Maggie Weaver and nine-
year-old Carly Villa. A few weeks later, two men found the
girls’ bodies in Logomarsino Canyon, a remote area east of
Reno, Nevada.

On June 14, 1983, Sechrest was arrested by the Sparks,
Nevada police on an unrelated grand larceny charge. Detec-
tive Wright of the Sparks police informed Sechrest of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966), and
asked Sechrest if he wanted to talk about the grand larceny
charge. Sechrest replied that he wished to speak with his
attorney. At that point, questioning ceased.

The Sparks police then took Sechrest to the station for
booking. While Sechrest was waiting to be booked, he turned
to Detective Wright and another officer, Sergeant Gonyo, and
said, “I like you two guys, I don’t want an attorney, I will talk
with you.” The officers finished booking Sechrest and gave
him a standard form for waiving his Miranda rights. Sechrest
read and signed this form in the presence of the officers.

judgment only if it was “contrary to” or “involved an unreasonable appli-
cation of” clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1). However, AEDPA does
not apply to the merits of petitions filed before April 24, 1996, the effec-
tive date of the Act. See Caswell v. Calderon, 363 F.3d 832, 836 n.3 (9th
Cir. 2004). Because Sechrest filed his first federal habeas petition before
AEDPA’s 1996 enactment, AEDPA does not affect our analysis in this
case.
 SECHREST v. IGNACIO 13981
The Sparks officers proceeded to question Sechrest about
the grand larceny charge. During questioning, Sechrest stated
that the Reno police were investigating him as a possible sus-
pect in a homicide. The Sparks officers, however, did not
question Sechrest about the homicide.

When the Sparks officers finished questioning Sechrest,
Sergeant Gonyo left the room. He returned to inform Sechrest
that Officer Bogison of the Reno Police Department was out-
side. Sergeant Gonyo asked Sechrest if he would like to talk
to Officer Bogison, with whom Sechrest had spoken over the
past few days. Sechrest replied, “Yes, I like Mr. Bogison, he
is the only one on my side, and [he] understands me.” Officer
Bogison then approached Sechrest and said, “I understand
you want to talk to me, is that right?” Sechrest replied, “Yes.”
Sechrest also stated that he had spoken with his attorney and
had been advised to “keep his mouth shut.” Officer Bogison
responded, “Well, there is nothing we can do to alter that . . .
do you want to talk to me?” Sechrest replied, “I will tell you
what, I will make a deal—no, I won’t make a deal. You ask
some questions, and if I want to answer them, I will answer
them, and if not, I won’t.” Bogison then asked again, “Does
this mean you want to talk to us?” Sechrest answered, “Yes.”

Sechrest entered an interrogation room with Officer Bogi-
son and another Reno officer, Detective Eubanks. Before the
interrogation began, Sechrest requested permission to call his
grandmother and his attorney. Sechrest first called his grand-
mother. When that call ended, Officer Bogison asked Sechrest
if he wished to call his attorney. Sechrest said, “No, I want to
get this off my chest.” Shortly thereafter, Sechrest confessed
to the two murders.

Before trial, Sechrest moved under Miranda to suppress the
confession he made to the Reno police officers. Following an
evidentiary hearing, the trial judge ruled that Sechrest’s
Miranda rights had not been violated and that Sechrest’s con-
fession could be admitted into evidence.
13982 SECHREST v. IGNACIO
Sechrest’s seven-day jury trial began on September 12,
1983, in Nevada’s Second Judicial District Court. During his
voir dire of the jury, the prosecutor made two statements sug-
gesting that Sechrest would not actually serve a full term of
life imprisonment if he were sentenced to life in prison with-
out the possibility of parole:

Statement #1: The judge is going to give you an
instruction at the penalty phase, if we get there, that
he will impose the penalty that you say, but if you
say life in prison without parole, that doesn’t mean
that the pardons board can’t let him out. Now, would
you consider that when you arrive at your verdict?

Statement #2: Okay. Now, [defense counsel] has
talked a lot about the possible penalties if we get
there being life with possibility of parole, life with-
out possibility of parole and death. And His Honor
will, I imagine, because many times I have been in
front of His Honor, will give you a charge, a jury
instruction saying if you impose life without parole
that really doesn’t mean life forever. If he gives you
that charge, will you take that into consideration in
deciding what the verdict ought to be?

Defense counsel did not object to these statements.

On September 19, 1983, the jury convicted Sechrest of two
counts of first degree murder and two counts of first degree
kidnaping.

The penalty phrase of Sechrest’s trial began on September
26, 1983. The prosecution’s primary penalty phase witness
was Dr. Lynn M. Gerow. Dr. Gerow’s involvement in the
case began several months before trial when, at defense coun-
sel’s request, the trial judge appointed Dr. Gerow to conduct
a psychiatric evaluation of Sechrest. Using Dr. Gerow’s eval-
uation, defense counsel sought to determine whether Sechrest
 SECHREST v. IGNACIO 13983
was fit to stand trial, and to investigate the possibility of an
insanity defense.

Dr. Gerow interviewed and evaluated Sechrest. He then
submitted a report addressed to defense counsel marked
“Confidential.” The report contained information about
Sechrest’s criminal history and past drug use. In the report,
Dr. Gerow stated that Sechrest had a “polymorphous perver-
sion.” After reviewing the report and speaking with Dr.
Gerow, defense counsel decided not to call Dr. Gerow as a
witness at the penalty phase and not to pursue an insanity
defense.

The prosecutor then asked defense counsel to permit the
use of Dr. Gerow’s report and to permit the prosecutor to call
Dr. Gerow as a prosecution witness during the penalty phase.
Defense counsel, who last communicated with Dr. Gerow
about two months before trial, stipulated to the prosecution’s
request and did not object when Dr. Gerow took the stand. Dr.
Gerow testified that he had evaluated Sechrest at defense
counsel’s request. He further testified that Sechrest was an
“incurable sociopath” with an extensive criminal record and
a history of drug use.

In front of the jury at the penalty phase, the prosecutor
made sure the record showed that defense counsel had acqui-
esced in the prosecution’s request to call Dr. Gerow as a pros-
ecution witness. The prosecutor frequently referred to Dr.
Gerow’s testimony when examining penalty phase witnesses
and when making his closing argument. Moreover, during
closing argument, the prosecutor made two additional state-
ments to the jury emphasizing that the Board of Pardon Com-
missioners could change Sechrest’s sentence and that
prisoners never serve their full life sentences, even when the
life sentence states that it is imposed without the possibility
of parole:

Statement #3: Now, the judge has told you that if
you return a verdict, whatever verdict you return, he
13984 SECHREST v. IGNACIO
will impose. He also told you, and it is very impor-
tant under the laws of this state, the State of Nevada,
any sentence imposed by the jury may be refused 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, the
Court has no way of knowing. Indeed, you don’t
either. The State Board of Pardon commissioners,
however, would have the power to modify any sen-
tence at a later date. And what that means is, let’s
say you fall — I am going to talk about his defense.
It was a fraud. And let’s say you fall for that fraud
and you say well, gee, I just can’t bring myself to do
what I should do, and I am going to impose life with-
out parole. You don’t die in prison of old age. People
get out. Now, are you prepared to risk the life of
some other person or child by giving him the oppor-
tunity to get out? That will be your risk. That will be
your burden.

Statement #4: Never getting out. As the judge has
instructed you, the pardons board has the ultimate
authority to review any sentence, to pardon anybody.
If you return a verdict of life without possibility of
parole, I represent to you as a lawyer, as an attorney
for the people of this county, that the pardons board
has the authority to commute that tomorrow if they
want to. They won’t, of course, but they have the
authority to. So don’t buy that he is going to go to
jail forever. It just doesn’t happen.

Defense counsel did not object to these statements.

After closing argument at the penalty phase, the trial judge
issued penalty phase jury instructions, which included the fol-
lowing:
 SECHREST v. IGNACIO 13985
If the penalty is fixed at life imprisonment with the
possibility of parole, eligibility for parole begins
when a minimum of ten years has been served.

If the penalty is fixed at life imprisonment without
the possibility of parole, the defendant shall not be
eligible for 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 Par-
don 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.

On September 27, 1983, the jury returned its verdict,
imposing the death penalty for each of the two murders. The
jury found four aggravating factors for each murder: (1) that
the murder involved torture, depravity of the mind, or mutila-
tion of the victim; (2) that the murder was committed to pre-
vent or avoid a lawful arrest or to effect an escape from
custody; (3) that the murder was committed during the com-
mission or the attempted commission of a kidnaping; and (4)
that the murder was committed during the commission or
attempted commission of a sexual assault.

The trial judge, in accordance with the jury’s verdict, sen-
tenced Sechrest to the penalty of death for each of the two
murders. The trial judge also sentenced Sechrest to two terms
of life in prison without the possibility of parole for each of
the two kidnaping convictions.

PROCEDURAL BACKGROUND

Sechrest appealed his convictions and sentences on several
grounds to the Nevada Supreme Court. On August 27, 1985,
13986 SECHREST v. IGNACIO
the Nevada Supreme Court affirmed both his convictions and
his sentences. Sechrest v. State, 705 P.2d 626 (Nev. 1985).

On November 13, 1985, Sechrest filed a petition for post-
conviction relief in the Nevada state district court. Sechrest
argued that he was denied effective assistance of counsel dur-
ing the penalty phase of his trial because his attorney failed
to prevent Dr. Gerow from testifying for the prosecution.
After conducting an evidentiary hearing on Sechrest’s petition
on November 8, 1990, the Nevada state district court con-
cluded that counsel’s performance had been constitutionally
deficient. Nevertheless, the state district court held that Se-
chrest had failed to demonstrate prejudice and denied the peti-
tion. Sechrest appealed the state district court’s denial of post-
conviction relief to the Nevada Supreme Court, which
affirmed the state district court’s denial on February 20, 1992.
Sechrest v. State, 826 P.2d 564 (Nev. 1992).

On August 13, 1992, Sechrest filed a pro se federal petition
for a writ of habeas corpus. The district court appointed coun-
sel for Sechrest, and Sechrest filed an amended habeas peti-
tion on October 31, 1994. On September 25, 1995, the district
court dismissed the amended petition with leave to amend.

On October 27, 1995, Sechrest filed a second amended fed-
eral habeas petition raising thirty-five claims of various con-
stitutional violations that occurred during both the guilt and
penalty phases of his trial.2 The district court held that four of
Sechrest’s claims had been properly exhausted in state court,
but thirty-one had not. Accordingly, the district court ruled
that Sechrest’s second amended petition was a “mixed peti-
tion,” containing both exhausted and unexhausted claims.
Because federal law prohibits the consideration of mixed peti-
tions, Rose v. Lundy, 455 U.S. 509, 522 (1982), the district
2
Several of Sechrest’s ineffective assistance counsel claims contained
subparts. The district court counted each of these subparts as individual
habeas claims.
 SECHREST v. IGNACIO 13987
court dismissed the second amended petition without preju-
dice to allow Sechrest to pursue his unexhausted claims in
state court.

Sechrest appealed the district court’s dismissal of his sec-
ond amended petition to this court. While that appeal was
pending, Sechrest filed a second post-conviction petition in
Nevada state court in an attempt to exhaust his unexhausted
claims. On September 4, 1996, the Nevada state district court
dismissed that petition under Nevada Revised Statute
§ 34.810 (“NRS 34.810”). NRS 34.810 provides that a peti-
tion shall be dismissed if the court determines that the
grounds for the petition could have been raised in an earlier
proceeding, unless the court finds both cause for the failure to
present the grounds earlier and actual prejudice to the peti-
tioner.

On November 20, 1997, the Nevada Supreme Court
affirmed the state district court, holding that Sechrest’s habeas
claims that had not been raised in the earlier state proceedings
were procedurally defaulted under NRS 34.810. Sechrest v.
State, No. 29170 (Nev. Nov. 20, 1997). The Nevada Supreme
Court ruled that Sechrest had failed to show good cause for
his failure to raise the claims earlier and had failed to demon-
strate that his unexhausted claims had any merit. The Nevada
Supreme Court concluded that only five of Sechrest’s claims
had been exhausted during the prior state proceedings: (1)
denial of a fair trial because of prosecutorial misconduct
regarding comments on executive clemency, (2) violation of
Sixth Amendment right to effective assistance of counsel
because of failure of trial court to appoint Sechrest a second
attorney, (3) violation of Fifth Amendment right against self-
incrimination by admission into evidence of petitioner’s state-
ments to police, (4) violation of Fifth Amendment right
against self-incrimination because of admission into evidence
of Dr. Gerow’s testimony, and (5) violation of Sixth Amend-
ment right to effective assistance of counsel because of trial
13988 SECHREST v. IGNACIO
counsel’s failure to prevent or prepare for Dr. Gerow’s testi-
mony.

Relying on the Nevada Supreme Court’s decision, we dis-
missed Sechrest’s appeal of his second amended federal
habeas petition. Sechrest v. Del Papa, 161 F.3d 14 (Table),
1998 WL 551984 at *2 (9th Cir. Aug. 27, 1998) (unpublished
memorandum disposition). Citing Wainwright v. Sykes, 433
U.S. 72, 87 (1977), we held that the claims deemed procedur-
ally defaulted by the Nevada Supreme Court under NRS
34.810 were outside federal habeas jurisdiction. Id. at *1. We
remanded Sechrest’s second federal petition to the district
court, instructing the district court to “vacate its order dis-
missing the petition, permit [Sechrest] to delete the claims
which are procedurally barred, and then proceed to determine
the merits of the five [ ]exhausted3 claims.” Id. at *2. We
noted that if Sechrest “[did] not delete the procedurally barred
claims, then the district court should deny the petition.” Id.

On remand, the district court ordered supplemental briefing
on the procedural default issue. The State objected, arguing
that this court had already ruled on that issue. Initially, the
district court disagreed with the State and reiterated its request
that the parties submit briefing on the procedural default
issue. Ultimately, however, the district court agreed with the
State and issued an order indicating that it would accept an
amended petition from Sechrest “in accordance with the order
of the Ninth Circuit Court of Appeals and the Nevada
Supreme Court.”

Complying with the district court’s order, Sechrest filed a
third amended federal habeas petition on May 20, 1999, omit-
ting the claims deemed procedurally barred and raising his
3
The original disposition inadvertently stated that the district court
should “proceed to determine the merits of the five unexhausted claims.”
On September 16, 1998, we filed an order amending our disposition to
correct that misstatement. We cite the corrected language above.
 SECHREST v. IGNACIO 13989
five remaining claims. On April 19, 2004, the district court
issued an order denying on their merits all five claims con-
tained in the third amended habeas petition.

Sechrest filed a motion for reconsideration of the district
court’s order. In that motion, Sechrest asked the district court
to reconsider its ruling on his third amended petition, and to
re-evaluate those claims that had been deemed procedurally
defaulted. On June 3, 2004, the district court denied Se-
chrest’s motion for reconsideration.

Sechrest then filed an application for a certificate of
appealability with the district court. On December 3, 2004,
the district court granted the certificate of appealability on
four of the five claims raised in Sechrest’s third amended fed-
eral petition, and on the correctness of the procedural default
ruling. Those issues are before us now.

STANDARD OF REVIEW

Because Sechrest filed his original federal habeas petition
before April 24, 1996, AEDPA’s standard of review does not
apply. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir.
2005) (en banc). Accordingly, we “simply resolve the legal
issue[s] on the merits, under the ordinary rules.” Id. at 628
(internal quotation and citation omitted). We review the dis-
trict court’s denial of Sechrest’s habeas petition de novo and
its factual findings for clear error. Id. at 628.

DISCUSSION

I.

We begin by deciding whether the claims that the Nevada
Supreme Court dismissed under NRS 34.810 were properly
barred from federal habeas review. We hold that these claims
should not have been barred, and remand so that the district
court may consider them on their merits.
13990 SECHREST v. IGNACIO
A.

[1] Under the principles governing procedural default, a
federal district court cannot review a habeas petitioner’s
claimed denial of a constitutional right if the petitioner failed
to present the claim in state court because of a procedural
default in that court. Valerio v. Crawford, 306 F.3d 742, 773
(9th Cir. 2002) (en banc). “A default under an independent
and adequate state procedural rule operates as a bar in federal
court unless the petitioner can show cause for and prejudice
from the default.” Id. (citing Wainwright, 433 U.S. at 72;
Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994)). “[T]o
constitute adequate and independent [state] grounds sufficient
to support a finding of procedural default, a state rule must be
clear, consistently applied, and well-established at the time of
the petitioner’s purported default.” Wells, 28 F.3d at 1010.

Our 1998 memorandum disposition in this matter held that
the claims deemed procedurally defaulted under NRS 34.810
were barred from federal habeas review. 1998 WL 551984 at
*2. We recognize that we are generally precluded under the
“law of the case” doctrine from reconsidering an issue that
has already been decided by the same court in the identical
case. United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.
1998). However, we have discretion to depart from a prior
decision if “(1) the decision is clearly erroneous and its
enforcement would work a manifest injustice, (2) intervening
controlling authority makes reconsideration appropriate, or
(3) substantially different evidence was adduced at a subse-
quent trial.” Minidoka Irrigation Dist. v. U.S. Dep’t of Inte-
rior, 406 F.3d 567, 573 (9th Cir. 2005) (quoting Old Person
v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)). As we dis-
cuss below, this court’s 2002 en banc decision in Valerio was
intervening controlling authority that makes reconsideration
of our 1998 memorandum disposition appropriate here.

In Valerio, we examined the application of NRS 34.810
under circumstances almost identical to those present here.
 SECHREST v. IGNACIO 13991
306 F.3d 742. After filing an unsuccessful petition for post-
conviction relief in Nevada state court in 1990, the petitioner
in Valerio filed a federal habeas petition in 1992, which the
federal district court dismissed as mixed under Rose. Id. at
748-49. The petitioner then filed a second state petition for
post-conviction relief in Nevada state district court in an
attempt to exhaust his unexhausted claims. Id. at 749. The
state district court dismissed the entire petition as procedur-
ally barred under NRS 34.810, and the Nevada Supreme
Court affirmed. Id.

The petitioner then returned to federal district court and
filed a second federal habeas petition. Id. In that petition, he
asserted the same claims for relief he had presented to the
Nevada state courts in his second petition for post-conviction
relief. Id. In 1998, the federal district court dismissed most of
the petitioner’s claims as barred from federal habeas review
under NRS 34.810, and the petitioner appealed. Id.

On en banc review, we agreed with petitioner that his
claims should not have been barred as procedurally defaulted
under NRS 34.810 because the Nevada courts had not applied
NRS 34.810 “with sufficient clarity and regularity.” Id. at
773. We noted that NRS 34.810 authorizes the Nevada courts
to dismiss claims that could have been raised on direct appeal
or in a prior petition for post-conviction relief unless the court
finds both cause for the failure to present the grounds and
actual prejudice to the petitioner. Id. at 771. Had this rule
been regularly adhered to, the Nevada courts should have dis-
missed all claims for post-conviction relief that could have
been brought in an earlier petition. Our in-depth review of
Nevada case law, however, revealed that, when the petitioner
in Valerio filed his first petition for post-conviction relief in
1990, the Nevada Supreme Court had a policy in capital cases
of “exercising discretionary sua sponte power to overlook
failures to present constitutional claims in earlier proceed-
ings.” Id. at 776. Because the Nevada Supreme Court exer-
cised a “general discretionary power” to address defaulted
13992 SECHREST v. IGNACIO
constitutional claims in capital cases, the Nevada Supreme
Court did not “adhere regularly” to the requirements of NRS
34.810. Id. at 778.

[2] We therefore concluded that NRS 34.810 was an inade-
quate state procedural bar to federal habeas review. Id. We
explicitly noted that this conclusion comported with our deci-
sions in Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001),
and McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995),
which held that the Nevada courts had inconsistently applied
NRS 34.810 as early as 1985, in both direct appeal and habeas
proceedings. Id.

[3] Valerio controls the outcome of the procedural default
issue in this case. Here, Sechrest’s default occurred on
November 13, 1985, when he filed his first petition for post-
conviction relief in the Nevada state district court. See id. at
776 (explaining that default occurs at the time the first peti-
tion for post-conviction relief is filed). Valerio demonstrates
that, in 1985, there was no clear, consistently applied, and
well-established rule that barred Sechrest from asserting in a
later petition claims that he failed to assert in his first petition.
Id. at 778. Therefore, NRS 34.810 is inadequate to bar federal
habeas review of the claims deemed procedurally defaulted by
the district court.

[4] Because we conclude that our earlier procedural default
ruling, 1998 WL 551984 at *2, should not stand, we must
now decide whether “jurists of reason would find it debat-
able” whether the defaulted claims stated valid “denial[s] of
a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 478
(2000). To do so, we simply take a “quick look” at the face
of the petition. Petrocelli, 248 F.3d at 885 (citations omitted).

Here, our “quick look” reveals that all the defaulted claims
alleged the denial of a constitutional right. In his second
amended petition, Sechrest raised several Sixth Amendment
ineffective assistance of counsel claims for errors that
 SECHREST v. IGNACIO 13993
occurred during the guilt and penalty phases of his trial. He
also argued that death by lethal injection violates the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment. These claims clearly state potential constitutional viola-
tions.

Furthermore, Sechrest challenged the constitutionality of
the four aggravating factors that the jury considered when
sentencing him to death. We have already held in Valerio that
one of these aggravating factors—the “depravity of mind”
factor—is unconstitutionally vague. 306 F.3d at 750-51; see
also Deutscher v. Whitley, 884 F.2d 1152, 1161 (9th Cir.
1989), vacated on other grounds sum nom., Angelone v.
Deutscher, 500 U.S. 901 (1991). Moreover, the Nevada state
district court has since held that the two “felony-murder”
aggravating factors applied in Sechrest’s case—that the mur-
der was committed during the commission or the attempted
commission of a kidnaping, and that the murder was commit-
ted during the commission or attempted commission of a sex-
ual assault—“must be stricken as invalid” under McConnell
v. State, 102 P.3d 606 (Nev. 2004). Sechrest v. McDaniel,
Second Judicial Dist. Ct., Case No. C83-1014 (Apr. 5, 2007)
(unpublished order). Therefore, at least one (and possibly
three) of Sechrest’s dismissed claims is not only a constitu-
tional claim; it is meritorious.

[5] Sechrest has shown that the dismissed claims alleged
potential denials of his constitutional rights. Accordingly, we
conclude that those claims should not have been barred from
federal habeas review.

B.

The State does not dispute the application of Valerio to
Sechrest’s case. Instead, the State contends that Sechrest
waived the procedural default issue when he filed a third
amended federal habeas petition omitting the supposedly
defaulted claims.
13994 SECHREST v. IGNACIO
[6] Generally, amendment of a complaint or petition consti-
tutes waiver of any omitted arguments or claims from previ-
ous versions of the complaint or petition. See Forsyth v.
Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). The filing
of a new petition cancels out and waives any claims from the
old petition. The cases establishing these rules, however, all
deal with voluntary waiver. See, e.g., London v. Coopers &
Lybrand, 644 F.2d 811, 814 (9th Cir. 1981); Loux v. Rhay,
375 F.2d 55, 57 (9th Cir. 1967). This is not such a case. In our
1998 memorandum disposition, we held that Sechrest’s
claims were procedurally barred from federal habeas review.
1998 WL 551984 at *2. We specifically stated that if Sechrest
failed to delete these claims, his entire petition should be
denied. Id. Complying with our mandate, the district court
required Sechrest to file a third amended federal habeas peti-
tion “in accordance with the order of the Ninth Circuit Court
of Appeals and the Nevada Supreme Court.” Thus, Sechrest
had to delete the defaulted claims, on pain of having his entire
habeas petition denied. Under such circumstances, we cannot
conclude that he voluntarily waived his claims.4 See, e.g., Wil-
son v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.
1978), vacated on other grounds, 444 U.S. 959 (1979) (“It . . .
is not logical to deny a party the right to appeal simply
because he decides to abide by the court’s order and amend
his pleading rather than allowing judgment to be entered
against him . . . .”).

[7] We also find that the doctrine of judicial estoppel pre-
vents the State from prevailing in its waiver argument. See
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782
(9th Cir. 2001) (“Judicial estoppel is an equitable doctrine that
precludes a party from gaining an advantage by asserting one
position, and then later seeking an advantage by taking a
clearly inconsistent position.”). In district court, the State
4
We note that our ruling requiring the deletion of procedurally defaulted
claims was incorrect. Unexhausted claims must be deleted, not procedur-
ally defaulted claims. See Valerio, 306 F.3d at 770.
 SECHREST v. IGNACIO 13995
successfully argued that Sechrest was bound by the terms of
our prior decision to delete the defaulted claims. The State
cannot now argue that Sechrest was at liberty to include those
same claims in his third amended federal habeas petition.

Finally, we reject the State’s argument that Sechrest did not
raise the procedural default issue in a timely manner because
he first addressed it in a motion for reconsideration. Sechrest
had already raised the procedural default issue in this court.
The State was well aware of the issue and suffered no preju-
dice when Sechrest raised it in his motion for reconsideration

[8] We conclude that the habeas claims the Nevada
Supreme Court dismissed under NRS 34.810 should not have
been barred from federal review. We reverse and remand to
the district court for consideration of those claims on the merits.5

II.

We next address Sechrest’s claims challenging the validity
of his conviction. Sechrest argues that the Reno police offi-
cers violated his Miranda right to remain silent and his
Miranda right to counsel when they questioned him at the
Sparks police station on July 14, 1983.6 Sechrest contends that
his confession was therefore the product of compulsion and
should not have been admitted into evidence at trial.

Miranda claims present mixed questions of law and fact
which we review de novo. See Thompson v. Keohane, 516
U.S. 99, 106-16 (1995). We hold that Sechrest’s Miranda
rights were not violated and affirm the district court on this
issue.
5
As we later conclude, for separate reasons, that there were due process
violations during the penalty phase of the trial, the claims that go to due
process violations in sentencing need not be revisited. We remand for con-
sideration of the other claims dismissed under NRS 34.810.
6
Sechrest concedes that he waived his Miranda rights when he chose to
speak with the Sparks officers about the grand larceny charge.
13996 SECHREST v. IGNACIO
A.

Sechrest first argues that the Reno officers violated his
right to remain silent. A suspect in police custody must be
informed of his right to remain silent before any interrogation
begins. See Miranda, 384 U.S. at 444. If the suspect indicates
in any manner, at any time prior to or during questioning, that
he wishes to invoke his right to remain silent, the interroga-
tion must cease. Id. at 474. Any statement taken after the sus-
pect’s invocation of this right constitutes the product of
compulsion and cannot be used as proof of guilt. Id.

However, “when a suspect makes an ambiguous or equivo-
cal statement it will often be good police practice for the
interviewing officers to clarify whether or not he actually
wants [to invoke the privilege].” Davis v. United States, 512
U.S. 452, 461 (1994). Clarifying questions “minimize the
chance of a confession being suppressed due to subsequent
judicial second-guessing as to the meaning of the suspect’s
statement.” Id. “If the suspect’s statement is not an [ ] unam-
biguous or unequivocal request for counsel, the officers have
no obligation to stop questioning.” Id. at 461-62.

[9] When the Sparks officers finished questioning Sechrest,
Sergeant Gonyo asked Sechrest if he would like to talk to
Reno Police Officer Bogison, and Sechrest answered that he
would. When Officer Bogison first approached Sechrest,
however, Sechrest told Officer Bogison that his lawyer had
advised him to “keep his mouth shut.” This statement was not
a clear invocation of the right to remain silent. Although
Sechrest was indicating what his lawyer had advised him to
do, it was not clear that Sechrest was explaining his own
intentions. An officer in Bogison’s position would not neces-
sarily have understood Sechrest’s statement to be an invoca-
tion of his right to remain silent.

After Sechrest announced that his lawyer had advised him
to “keep his mouth shut,” Officer Bogison asked a second
 SECHREST v. IGNACIO 13997
time if Sechrest wanted to talk to him. Because Sechrest’s
statement about his attorney’s advice was sufficiently vague
to merit clarification, this question was permissible.

Sechrest responded to Officer Bogison’s question with an
ambiguous, convoluted statement. Sechrest said, “I will tell
you what, I will make a deal—no, I won’t make a deal. You
ask some questions, and if I want to answer them, I will
answer them, and if not, I won’t.” Once again, Sechrest’s
intentions were unclear. Officer Bogison asked again whether
Sechrest wished to speak with him, and Sechrest said “yes.”
This last statement constituted a clear indication that Sechrest
did not wish to invoke his right to remain silent.

[10] In sum, each of Officer Bogison’s questions merely
sought to clarify whether Sechrest was invoking his right to
remain silent, and Sechrest eventually made clear that he did
not wish to invoke that right. We therefore conclude that
Sechrest knowingly and voluntarily waived this right before
he agreed to speak with the Reno police officers.

B.

Sechrest also argues that the Reno officers violated his
right to counsel under Miranda. “The right to counsel recog-
nized in Miranda is sufficiently important to suspects in crim-
inal investigations . . . that it ‘requir[es] the special protection
of the knowing and intelligent waiver standard.’ ” Davis, 512
U.S. at 458 (quoting Edwards v. Arizona, 451 U.S. 477, 483
(1981)). If a suspect waives his right to counsel after receiv-
ing the Miranda warnings, law enforcement officers are free
to question him. Id. “But if a suspect requests counsel at any
time during the interview, he is not subject to further ques-
tioning until a lawyer has been made available or the suspect
himself reinitiates conversation.” Id. A suspect who invokes
his right to counsel cannot be questioned about any offense
unless an attorney is actually present. Id.
13998 SECHREST v. IGNACIO
Applying these rules, we begin by determining whether
Sechrest actually invoked his right to counsel. Smith v. Illi-
nois, 469 U.S. 91, 95 (1984). This is an objective inquiry.
Davis, 512 U.S. at 458-59. There must, at a minimum, be a
statement from the suspect that can “reasonably be construed
to be an expression of a desire for the assistance of an attor-
ney.” Id. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171,
178 (1991)). Where a suspect makes a reference to an attor-
ney that is ambiguous or equivocal, the officers may continue
with their questioning. The suspect “must articulate 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, 512 U.S. at
459.

[11] When Officer Bogison first began questioning Sechr-
est, Sechrest said that he had spoken with his attorney and had
been advised to “keep his mouth shut.” This mention of an
attorney and reference to advice from an attorney is not an
unambiguous request for counsel. In Davis, the Supreme
Court examined a case where the suspect said, “Maybe I
should talk to a lawyer.” Id. at 455. The Court found that this
reference to an attorney was not a clear invocation of a right
to an attorney. Id. at 462. We have also held that the state-
ments, “I think I would like to talk to a lawyer,” and, “maybe
[I] ought to see an attorney” were not clear and unambiguous
requests for counsel. Clark v. Murphy, 331 F.3d 1062, 1070-
71 (9th Cir. 2003); United States v. Doe, 60 F.3d 544, 546
(9th Cir. 1995). Because Sechrest’s reference to his attorney’s
advice was even less clear than these statements, it was insuf-
ficient to require that the officers stop their questioning.

Sechrest did make a later statement that was a request for
counsel. After Sechrest agreed to speak to Officer Bogison
and Detective Eubanks, Sechrest asked permission to tele-
phone his grandmother and his attorney. Sechrest decided to
call his grandmother first, however. After Sechrest’s conver-
sation with his grandmother, Officer Bogison asked Sechrest
 SECHREST v. IGNACIO 13999
if he was going to call his attorney, but Sechrest said no. In
context, Officer Bogison’s question was simply an attempt to
follow up on and implement Sechrest’s earlier request, after
a delay instigated by Sechrest. Under these specific circum-
stances, we find Officer Bogison’s question permissible.

[12] Accordingly, we conclude that Sechrest’s right to
counsel was not violated when the Reno officers questioned
him at the Sparks police station.

III.

We now address Sechrest’s claims challenging the validity
of his death sentences. Sechrest raises three alternative claims
which, if meritorious, will require the State to resentence him.
We consider each claim in turn.

A.

First, Sechrest argues that the prosecutor’s statements
regarding the likelihood of Sechrest’s release from prison by
parole misled the jury and violated his Sixth and Fourteenth
Amendment due process right to a fair trial.

[13] A prosecutor’s misleading and inflammatory argu-
ments may violate a defendant’s due process right to a fair
trial. Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). On
federal habeas review, the narrow issue before us is whether
the prosecutor’s comments violated the defendant’s due pro-
cess right to a fair trial, not whether the prosecutor’s com-
ments constituted misconduct committed while the prosecutor
was under the court’s “exercise of supervisory power.” Id. at
181.

Thus, we must examine the “ ‘entire proceedings’ to deter-
mine whether the prosecutor’s remarks ‘so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.’ ” Hall v. Whitley, 935 F.2d 164, 165 (9th Cir.
14000 SECHREST v. IGNACIO
1991) (per curiam) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). Before granting relief, we must also
determine that any constitutional error was not harmless. Spe-
cifically, we must find that the error “had substantial and inju-
rious effect or influence in determining the jury’s verdict.”7
Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Only
if the record demonstrates that the jury’s decision was sub-
stantially influenced by the error or there is “ ‘grave doubt’
about whether an error affected a jury” will Sechrest be enti-
tled to relief. Hegler v. Borg, 50 F.3d 1472, 1478 (9th Cir.
1995) (quoting O’Neal v. McAninch, 513 U.S. 432, 438
(1995)).

After examining the entire record, we hold that the prosecu-
tor’s repeated misstatements regarding the likelihood of
Sechrest’s release from prison by parole were he to be sen-
tenced to life without the possibility of parole violated Se-
chrest’s due process right to a fair trial, and that the violation
had substantial and injurious effect on the jury’s sentencing
decision, carried out by the trial judge, to impose the death
penalty. Accordingly, Sechrest must be resentenced.

1.

Sechrest argues that the prosecutor’s uncorrected assertions
that the Board of Pardon Commissioners would likely release
Sechrest if he did not receive the death penalty were constitu-
tionally impermissible. We agree.

During Sechrest’s trial, the prosecutor made four state-
ments indicating that the Board of Pardon Commissioners
could—and likely would—release Sechrest if the jury
returned a verdict that did not impose the death penalty. We
repeat the prosecutor’s statements:
7
Here, Sechrest argues that the improper statements affected not his
guilty verdict, but the jury’s decision to impose the death penalty. There-
fore, our review focuses on the jury’s sentencing decision.
 SECHREST v. IGNACIO 14001
Statements Made During Voir Dire

Statement #1: The judge is going to give you an
instruction at the penalty phase, if we get there, that
he will impose the penalty that you say, but if you
say life in prison without parole, that doesn’t mean
that the pardons board can’t let him out. Now, would
you consider that when you arrive at your verdict?

Statement #2 : Okay. Now, [defense counsel] has
talked a lot about the possible penalties if we get
there being life with possibility of parole, life with-
out possibility of parole and death. And His Honor
will, I imagine, because many times I have been in
front of His Honor, will give you a charge, a jury
instruction saying if you impose life without parole
that really doesn’t mean life forever. If he gives you
that charge, will you take that into consideration in
deciding what the verdict ought to be?

Statements Made During Closing Argument
of the Penalty Phase

Statement #3: Now, the judge has told you that if
you return a verdict, whatever verdict you return, he
will impose. He also told you, and it is very impor-
tant under the laws of this state, the State of Nevada,
any sentence imposed by the jury may be refused 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 sen-
tence, the Court has no way of knowing. Indeed, you
don’t either. The State Board of Pardon commission-
ers, however, would have the power to modify any
sentence at a later date. And what that means is,
let’s say you fall — I am going to talk about his
14002 SECHREST v. IGNACIO
defense. It was a fraud. And let’s say you fall for that
fraud and you say well, gee, I just can’t bring myself
to do what I should do, and I am going to impose life
without parole. You don’t die in prison of old age.
People get out. Now, are you prepared to risk the life
of some other person or child by giving him the
opportunity to get out? That will be your risk. That
will be your burden.

Statement #4: Never getting out. As the judge has
instructed you, the pardons board has the ultimate
authority to review any sentence, to pardon anybody.
If you return a verdict of life without possibility of
parole, I represent to you as a lawyer, as an attorney
for the people of this county, that the pardons board
has the authority to commute that tomorrow if they
want to. They won’t, of course, but they have the
authority to. So don’t buy that he is going to go to
jail forever. It just doesn’t happen.

(Emphases added.)

In making these false, inflammatory statements, the prose-
cutor violated Sechrest’s due process right to a fair trial.

[14] First, the prosecutor repeatedly misled the jurors by
suggesting that a decision by the Board of Pardon Commis-
sioners could (and likely would) free Sechrest if the jury did
not return a verdict imposing the death sentence. The prosecu-
tor claimed that the Board of Pardon Commissioners had the
“ultimate authority” to commute a verdict of life in prison
without the possibility of parole “tomorrow.” The prosecutor
told the jury, “You don’t die in prison of old age. People get
out.” He then warned the jury not to “buy that [Sechrest] is
going to jail forever. It just doesn’t happen.”8
8
We note that the district court found that these false statements consti-
tuted error.
 SECHREST v. IGNACIO 14003
[15] The prosecutor’s statement that no individual sen-
tenced to life imprisonment “is going to go to jail forever. It
just doesn’t happen,” is patently false. The prosecutor pres-
ented no evidence to back up this outlandish statement. Thus,
this statement constituted improper testimony. See, e.g.,
United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978)
(explaining that an attorney “may not inject into his argument
any extrinsic or prejudicial matter that has no basis in the evi-
dence” because such improper “testimony” will “increase the
apparent probative force of [the attorney’s argument] by vir-
tue of his personal influence, his presumably superior knowl-
edge of the facts and background of the case, and the
influence of his official position.”).

Moreover, the prosecutor’s assertion that the actions of the
Board of Pardon Commissioners could ultimately result in
Sechrest’s release was not true under existing Nevada law.
When Sechrest was tried in 1983 for committing the two mur-
ders, the power of the Board of Pardon Commissioners to
commute a sentence of life without the possibility of parole to
a sentence of life with the possibility of parole was severely
curtailed under Nevada Constitution Article 5, section 14(2).9
9
In 1982, article 5, section 14(2) was added to the Nevada Constitution.
Article 5, section 14(2) reads as follows:
Except as may be provided by law, a sentence of death or a sen-
tence of life imprisonment without possibility of parole may not
be commuted to a sentence which would allow parole.
Thus, the plain language of Article 5, section 14(2)—in effect at the time
of Sechrest’s trial in 1983—indicates that the Board of Pardon Commis-
sioners could not commute a sentence of life without the possibility of
parole.
Despite this plain language, the Nevada Supreme Court held in 1990
that the Board of Pardon Commissioners did retain limited power to make
such a commutation. See Smith v. State, 802 P.2d 628 (Nev. 1990).
Though the decision in Smith was issued seven years after Sechrest’s trial,
it does not appear to announce “new” law. Rather, it appears that Smith
merely clarified the law in effect at the time Article 5, section 14(2) was
enacted in 1982.
14004 SECHREST v. IGNACIO
Thus, the prosecutor’s suggestion that the Board of Pardon
Commissioners could easily commute a sentence of life
imprisonment without the possibility of parole was false.

More importantly, Sechrest was on probation at the time he
committed the two murders in 1983. Under Nevada law in
effect at the time of Sechrest’s offense (and still in effect
today), an individual who is on probation at the time he com-
mits another offense—here, the two murders—is not eligible
for parole by the Parole Board on that offense. See Nev. Rev.
Stat. § 213.1099(4)(e) (“NRS 213.1099(4)(e)”) (prohibiting
the reduction of a sentence to one allowing parole if the con-
victed individual had “[failed] in parole, probation, work
release or similar programs”). The Nevada Supreme Court has
held that NRS 213.1099(4)(e) applies even in situations where
the Board of Pardon Commissioners commutes a sentence of
life without the possibility of parole to a sentence allowing for
parole. See Smith v. State, 802 P.2d 628, 630 (Nev. 1990)
(explaining that while “the board of pardons retains the power
to commute a sentence of life without the possibility of parole
to a sentence allowing for parole,” the “parole board
[remains] subject to the restrictions of NRS 213.1099(4)(e),”
and therefore cannot grant parole to those who were on proba-
tion at the time of their offenses, even if their sentences have
been commuted by the Board of Pardon Commissioners).

[16] Thus, even if Sechrest had received sentences of life
without the possibility of parole for the two murders, and the
Board of Pardon Commissioners later commuted those sen-
tences to life with the possibility of parole, the Parole Board
would not have had the power to release Sechrest because he

For this reason, we cannot hold, as Sechrest argues, that the Board of
Pardon Commissioners entirely lacked the power under the plain language
of Article 5, section 14(2), to commute Sechrest’s sentence at the time of
his trial in 1983—although, as we next explain, it did lack that power for
a different reason.
 SECHREST v. IGNACIO 14005
was on probation when he committed the two murders in 1983.10
That was the law in Nevada at the time of Sechrest’s trial, and
it is the law that remains in effect today. Accordingly, con-
trary to the prosecutor’s repeated assertions, the Board of Par-
don Commissioners did not have the power to parole
Sechrest.

The prosecutor compounded the damaging effect of his
erroneous assertions by “representing” to the jury that “as a
lawyer, as an attorney for the people of this county,” “the par-
dons board has the authority to commute [a sentence of life
without possibility of parole] tomorrow if they want to.” As
the Supreme Court has observed, a “prosecutor’s opinion car-
ries with it the imprimatur of the Government and may induce
the jury to trust the Government’s judgment rather than its
own view of the evidence.” United States v. Young, 470 U.S.
1, 18-19 (1985). By vouching for the truthfulness of his own
unsupported, inaccurate assertions, the prosecutor committed
flagrant misconduct. Cf. United States v. Molina, 934 F.2d
1440, 1444-45 (“As a general rule, a prosecutor may not
express . . . belief in the credibility of government witnesses.
Such prosecutorial vouching, which consists of either placing
the prestige of the government behind the witnesses through
personal assurances of their veracity or suggesting that infor-
mation not presented to the jury supports the witnesses’ testi-
mony, is improper.”) (citation omitted).

Additionally, the prosecutor inflamed the passions of the
jury by calling the defense a “fraud,” and telling the jurors
that if they “[fell] for that fraud,” they would be “risk[ing] the
life of some other person or child.” The prosecutor told the
jury, “[t]hat will be your risk. That will be your burden.” We
10
Though Sechrest presents his argument regarding NRS 213.1099(4)(e)
for the first time on appeal, the district court addressed it sua sponte
below. Because the district court decided the question on the merits, we
may review it. See Cadillac Fairview of Cal. Inc. v. United States, 41 F.3d
562, 565 n.3 (9th Cir. 1994).
14006 SECHREST v. IGNACIO
have held that similar inflammatory comments violate a crim-
inal defendant’s right to a fair trial. See United States v. San-
chez, 176 F.3d 1214, 1222 (9th Cir. 1999) (holding that the
prosecutor committed misconduct “denigrating the defense as
a sham”); Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975) (per
curiam) (describing the prosecutor’s statement that maybe
next time the victim “will be someone you know” as “highly
inflammatory and wholly impermissible”).

In short, the prosecutor’s statements were inflammatory,
unsupported, and inaccurate. Significantly, neither defense
counsel nor the trial judge did anything to stop the prosecutor
from making these statements.11

To make matters worse, the trial judge gave the jury an
instruction that increased the risk that the prosecutor’s mis-
conduct would affect the jury’s verdict. In relevant part, the
trial judge instructed the jury:

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 Par-
don Commissioners upon review, if requested by the
defendant, would change that sentence, this Court
11
The State cites Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (per
curiam) for the proposition that Sechrest’s due process claim is procedur-
ally barred under Nevada law from federal habeas review because defense
counsel failed to object during voir dire and during closing argument to
the prosecutor’s misleading assertions. But the Nevada Supreme Court
addressed Sechrest’s due process claim on the merits, not treating it as
procedurally barred, so we may do so as well. See Wood v. Alaska, 957
F.2d 1544, 1549 (9th Cir. 1992).
Additionally, as noted below, we hold that Sechrest’s counsel provided
him with ineffective assistance. It is therefore unsurprising that defense
counsel failed to object to the prosecutor’s blatantly inappropriate
remarks.
 SECHREST v. IGNACIO 14007
has no way of knowing. The State Board of Pardon
Commissioners, however, would have the power to
modify any sentence at a later date.

(Emphasis added.)

Jury instructions that describe commutation may be appro-
priate where those instructions are accurate. California v.
Ramos, 463 U.S. 992, 1004 (1983). However, an instruction
that is accurate in the abstract can nonetheless violate the
Constitution if it inaccurately describes the possibility of
clemency on the facts of the defendant’s case. Coleman v.
Calderon, 210 F.3d 1047, 1050-51 (9th Cir. 2000) (noting
that the prosecutor’s argument on the necessity of imposing
a death sentence exacerbated the prejudice of a misleading
jury instruction on executive clemency); Gallego v. McDan-
iel, 124 F.3d 1065, 1074-77 (9th Cir. 1997) (finding that
Nevada’s instruction on the possibility of executive clemency
was misleading because the defendant was under the sentence
of death in another jurisdiction, yet Nevada’s instruction
implied that early parole was available for the defendant).
Furthermore, the need for accurate jury instructions is height-
ened where, as in this case, the prosecution argues the issue
of a defendant’s future dangerousness. E.g., Simmons v. South
Carolina, 512 U.S. 154, 163-66 (1994) (explaining that inac-
curate instructions about parole eligibility may deprive a
defendant of due process when the defendant’s future danger-
ousness is at issue).

Here, the jury instruction reinforced the prosecutor’s argu-
ment that the Board of Pardon Commissioners was the entity
responsible for deciding Sechrest’s term of imprisonment.
The jury instruction emphasized that the Board of Pardon
Commissioners had the “power to modify any sentence” and
that the court had “no way of knowing” whether the Board of
Pardon Commissioners would do so. When combined with
the prosecutor’s assertion that “the pardons board has the ulti-
mate authority to review any sentence, to pardon anybody,”
14008 SECHREST v. IGNACIO
the jury instruction contributed to the false impression that the
Board of Pardon Commissioners could free Sechrest if he
were not sentenced to death. Because the jury instruction
invited the jury to accept the prosecutor’s speculation “that
the only way [the jury] could be assured [that Sechrest] would
not be released would be to sentence him to death,” it exacer-
bated, rather than corrected, the inaccurate effect of the prose-
cutor’s arguments. Coleman, 210 F.3d at 1051.

[17] Bottom line: the prosecutor misled the jurors to
believe that if they did not impose the death penalty, Sechrest
could be released on parole and would kill again. In making
his erroneous assertions, the prosecutor gave improper testi-
mony, used his position as an attorney “for the people” to
vouch for that improper testimony, and most likely inflamed
the passions of the jury. The trial judge did nothing to stop the
prosecutor from making these erroneous assertions. Instead,
the trial judge gave a jury instruction that validated the prose-
cutor’s false and inflammatory statements. In these circum-
stances, we conclude that the prosecutor committed
misconduct rising to the level of constitutional error.

2.

We must now decide whether the constitutional error preju-
diced Sechrest. Our prejudice inquiry focuses on the totality
of the effect of the error. Williams v. Taylor, 529 U.S. 362,
398-99 (2000) (reviewing the “entire postconviction record”
in conducting a prejudice inquiry). We review the “entire pro-
ceedings” to determine whether the prosecutor’s misleading
remarks “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Hall, 935 F.2d
at 165 (quotation omitted). We hold that they did.

[18] A jury sitting in a capital case must be given a clear
choice between the death penalty and a life sentence. See
Coleman v. Calderon, 150 F.3d 1105, 1118 (9th Cir.), rev’d
on other grounds, 525 U.S. 141 (1998) (noting “the Supreme
 SECHREST v. IGNACIO 14009
Court’s emphasis on the importance of accuracy in the
description of sentencing alternatives in a death penalty pro-
ceeding”). Here, the jury was not given that choice. The pros-
ecutor repeatedly told the jury that Sechrest would be released
if he did not receive the death penalty. The trial judge did
nothing to stop the prosecutor from making this false repre-
sentation, and gave a jury instruction that confirmed it.
Finally, the prosecutor told the jurors that they would be
“risk[ing] the life” of “some other child” if they did not sen-
tence Sechrest to death. Accordingly, we hold that the prose-
cutor’s misconduct, combined with the court’s inaccurate jury
instruction, had a substantial and injurious effect on the jury’s
decision to impose the death penalty on Sechrest.

[19] Though the prosecutor’s misconduct alone justifies
this holding, we note that Dr. Gerow’s testimony exacerbated
the prejudicial effect of the prosecutor’s remarks.12 Dr. Gerow
was the prosecution’s primary penalty phase witness. After
stating that he had examined Sechrest at defense counsel’s
request, Dr. Gerow testified that Sechrest had an extensive
criminal history that included burglary, possession of stolen
property, and possession of narcotics. Dr. Gerow further testi-
fied that Sechrest had a “callous disregard for human life” and
was an incurable sociopath who, if released, would pose a
danger to others, particularly to little girls. Dr. Gerow’s testi-
mony that Sechrest was extremely dangerous and could not be
rehabilitated likely had a substantial influence on the jury’s
decision to sentence Sechrest to death.
12
Like the district court, we recognize the “interplay” between Se-
chrest’s due process claim and his ineffective assistance of counsel claim
concerning the admission of Dr. Gerow’s testimony. As discussed below,
we hold that Sechrest’s counsel provided him with ineffective assistance
by allowing the State to call Dr. Gerow as a penalty phase witness. We
note, however, that even if counsel’s performance was not ineffective in
this regard, we would still consider the impact of Dr. Gerow’s damaging
testimony in examining the entire proceedings to determine the totality of
the effect of the prosecutor’s misleading and inflammatory argument.
14010 SECHREST v. IGNACIO
[20] In reaching this conclusion, we depart from the state
post-conviction court’s and the district court’s analysis of Dr.
Gerow’s testimony. Both courts theorized that Dr. Gerow’s
testimony, though extremely harmful to Sechrest, was “cumu-
lative,” putting nothing new before the jurors that they did not
already know. In so theorizing, both courts neglected to rec-
ognize the significance of Dr. Gerow’s role as a mental health
expert. As the Supreme Court has explained:

[P]sychiatrists gather facts, through professional
examination, interviews, and elsewhere, that they
will share with the judge or jury; they analyze the
information gathered and from it draw plausible con-
clusions about the defendant’s mental condition, and
about the effects of any disorder or behavior; and
they offer opinions about how the defendant’s men-
tal condition might have affected his behavior at the
time in question. . . . Unlike lay witnesses, who
merely describe symptoms they believe might be rel-
evant to the defendant’s mental state, psychiatrists
can identify the “elusive and often deceptive” symp-
toms of insanity, and tell the jury why their observa-
tions are relevant. Further, where permitted by
evidentiary rules, psychiatrists can translate a medi-
cal diagnosis into language that will assist the trier
of fact, and therefore offer evidence in a form that
has meaning for the task at hand. Through this pro-
cess of investigation, interpretation, and testimony,
psychiatrists ideally assist lay jurors, who generally
have no training in psychiatric matters, to make a
sensible and educated determination about the men-
tal condition of the defendant at the time of the
offense.

Ake v. Oklahoma, 470 U.S. 68, 80-81 (1985) (citations omit-
ted). Dr. Gerow’s testimony cannot be considered merely “cu-
mulative” because of his role as the only medical doctor to
discuss Sechrest’s criminal past and pathology during the pen-
 SECHREST v. IGNACIO 14011
alty phase. While other lay witnesses may have touched on
some of the same points that were presented by Dr. Gerow,
only Dr. Gerow had the education and experience necessary
to evaluate Sechrest’s dangerousness. Thus, his opinion car-
ried more credibility. Dr. Gerow’s connection with the
defense, and his inability to say anything positive or even mit-
igating about Sechrest, meant that the prosecutor’s misleading
remarks and the erroneous jury instruction likely had particu-
lar impact on the jury.

The State contends that the prosecutor’s misconduct did not
directly relate to one of the statutory aggravating and mitigat-
ing factors presented to the jury, and therefore played no role
in the jury’s sentencing decision. The State’s contention is
misguided: the question of prejudice focuses on the totality of
the effect of the error, Williams, 529 U.S. at 398, not whether
the error relates directly to an aggravating or mitigating fac-
tor. Moreover, under Nevada law, the jury has the power to
impose a sentence less than death regardless of the weight of
aggravation or the total lack of mitigation. Evans v. State, 28
P.3d 498, 515 (Nev. 2002); Bennett v. State, 787 P.2d 797,
803 (Nev. 1990), overruled on other grounds by Leslie v.
Warden, 59 P.3d 440 (Nev. 2002). Accordingly, the fact that
the prosecutor’s arguments did not directly relate to an aggra-
vating factor is not determinative of our prejudice inquiry.13

Furthermore, the only mitigating factor offered by the
defense—Sechrest’s lack of a violent criminal past, with the
13
In addition, we have already explained that three of the four aggravat-
ing factors have since been held unconstitutional. Supra at 15993. Thus,
it is virtually certain that on remand, the district court will strike some, if
not all, of the aggravating factors as invalid. Although we do not consider
the invalidity of those aggravating factors as part of our prejudice analysis,
we note that the aggravating factors undoubtedly had a substantial and
injurious effect on the jury’s imposition of the death penalty. Indeed, as
the district court conceded, “the most important considerations informing
the sentencing decision must have been the aggravating circumstances
relating to the nature of the crimes.”
14012 SECHREST v. IGNACIO
implication that he was unlikely to be dangerous in prison—
was in fact affected by the prosecutor’s misconduct. The pros-
ecutor argued and improperly vouched that Sechrest would be
released and would kill again if he was not sentenced to death.
The jury was more likely to believe that argument after hear-
ing Dr. Gerow testify that Sechrest had an extensive criminal
history and was an “incurable sociopath” who posed a danger
to little girls.

Finally, the State argues that because Sechrest’s crime was
one “of utter depravity—unthinkable by most people in the
abstract,” we would “demean both Brecht and the jury that
sentenced Sechrest to death” if we held that the constitutional
violation prejudiced Sechrest. This argument, however, is
analogous to the argument that the Supreme Court condemned
in Godfrey v. Georgia, 446 U.S. 420 (1980). In Godfrey, the
Supreme Court reviewed an affirmation of a death sentence
“based upon no more than a finding that the offense was ‘out-
rageously or wantonly vile, horrible and inhuman.’ ” 446 U.S.
at 428. The Supreme Court reversed, reasoning that “[t]here
is nothing in these few words, standing alone, that implies any
inherent restraint on the arbitrary and capricious infliction of
the death sentence. A person of ordinary sensibility could
fairly characterize almost every murder as ‘outrageously or
wantonly vile, horrible and inhuman.’ ” Id. at 428-29.

In short, all first degree murders can be described as “un-
thinkable.” Merely labeling them as such does not mean that
all jurors will find that they warrant the death penalty, nor
does the label relieve us of our duty to determine whether the
constitutional errors that occurred in this case deprived Se-
chrest of a fair trial.

[21] We conclude that, when viewed against the back-
ground of the entire proceedings, including Dr. Gerow’s testi-
mony and the misleading jury instruction, the prosecutor’s
erroneous and inflammatory assertions had a substantial and
injurious effect in determining the jury’s sentencing verdict.
 SECHREST v. IGNACIO 14013
Because Sechrest was deprived of his due process right to a
fair penalty phase trial, he must be resentenced.

B.

Next, Sechrest argues that his trial counsel provided him
with ineffective assistance by allowing the prosecution to call
Dr. Gerow as a penalty phase witness. We address this issue
because it is connected to and throws additional light on the
prosecutorial misconduct question, and because it may be per-
tinent if the penalty phase is retried. We emphasize, however,
that our prosecutorial misconduct ruling is an independent
basis for reversing the penalty phase judgment.

A defendant’s Sixth Amendment right to representation in
a criminal trial includes the right to effective assistance of
counsel. Duncan v. Ornoski, 528 F.3d 1222, 1233 (9th Cir.
2008). Claims of ineffective assistance of counsel are mixed
questions of law and fact which we review de novo. Beards-
lee v. Woodford, 358 F.3d 560, 569 (9th Cir. 2004). Though
state court findings of fact are entitled to deference, we
reserve the right to give different legal weight to such facts.
See Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir.
1986).

To succeed on his ineffective assistance of counsel claim,
Sechrest must show that (1) his trial counsel’s performance
“fell below an objective standard of reasonableness” and (2)
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 688,
694 (1984).14

We hold that Sechrest has met both Strickland require-
14
The requirements of Strickland apply to sentencing. See Gardner v.
Florida, 430 U.S. 349, 358 (1977).
14014 SECHREST v. IGNACIO
ments. He is entitled to resentencing on this alternative
ground for relief.

1.

Under Strickland, counsel’s competence is presumed. Id. at
689. To rebut this presumption, Sechrest must demonstrate
that his counsel’s performance was unreasonable under pre-
vailing professional norms and was not the product of sound
strategy. Id. at 688-89. We consider counsel’s performance
deficient if it falls outside the range of competence demanded
of attorneys in criminal cases. Turner v. Calderon, 281 F.3d
851, 879 (9th Cir. 2002).

Here, for three main reasons, we hold that counsel’s repre-
sentation of Sechrest fell far outside the range of competence
demanded of an attorney representing a criminal defendant
who is facing the death penalty.

[22] First, counsel should not have allowed the prosecution
to review Dr. Gerow’s confidential report on Sechrest’s men-
tal health. Dr. Gerow evaluated Sechrest two months before
trial at defense counsel’s request. After reviewing Dr.
Gerow’s report and discussing it with Dr. Gerow, Sechrest’s
counsel decided not to call Dr. Gerow as witness for the
defense. Inexplicably, however, counsel disclosed Dr.
Gerow’s confidential and privileged report to the prosecution.
The report contained information about Sechrest’s criminal
history and his upbringing that Sechrest had revealed only to
Dr. Gerow. The report also contained Dr. Gerow’s diagnosis
that Sechrest had a “polymorphous perversion.”

Without Dr. Gerow’s report, the prosecution would not
have had access to this privileged information. More impor-
tantly, defense counsel had absolutely no obligation to dis-
close Dr. Gerow’s confidential report to the prosecution. By
allowing the prosecution to review and introduce into evi-
 SECHREST v. IGNACIO 14015
dence Dr. Gerow’s report on Sechrest, defense counsel per-
formed deficiently.

[23] Second, Sechrest’s counsel should not have stipulated
to the prosecutor calling Dr. Gerow as a witness for the prose-
cution. Counsel’s decision to so stipulate is indefensible. This
decision put counsel in the difficult position of having to
cross-examine the only mental health expert to testify during
the penalty phase of Sechrest’s trial, even though counsel
himself had chosen Gerow and supplied him with information
about Sechrest. Furthermore, the jury was told that Dr. Gerow
was hired by the defense to examine Sechrest and report on
his mental health. Given that the defense’s expert not only
had nothing favorable to say about Sechrest, but thought that
he was beyond all hope of rehabilitation, the jurors had even
less incentive to impose a sentence that they were told by the
prosecutor and the court might lead to Sechrest’s eventual
release.

At the November 8, 1990 state court evidentiary hearing on
this issue, Sechrest’s counsel took the stand and testified that
he did not object to the prosecutor calling Dr. Gerow as a wit-
ness because counsel believed that Dr. Gerow would provide
helpful information about Sechrest’s troubled background.
This explanation does not indicate a sound strategic decision.
Strickland, 466 U.S. at 688-89. If counsel truly believed that
Dr. Gerow’s testimony would be helpful, the appropriate
“strategic decision” would have been to call Dr. Gerow to tes-
tify on behalf of the defense. Instead, counsel did just the
opposite. Furthermore, counsel did not pursue or argue any
mitigating factors related to Sechrest’s troubled background.
Given these considerations, counsel cannot hide behind a
later, implausible assertion that his decision was “tactical”
given that his actions show that he had no intention of pre-
senting any mitigating evidence based on Sechrest’s mental
health.15
15
We are aware that the district court found that counsel’s decision to
allow the prosecution to call Dr. Gerow to the stand was “made with the
14016 SECHREST v. IGNACIO
[24] Third, counsel’s level of preparation for Dr. Gerow’s
testimony fell far below an objective standard of reasonable-
ness. Once counsel decided to allow the prosecution to call
Dr. Gerow as a witness, counsel had a duty to prepare for Dr.
Gerow’s testimony. “Preparing for the penalty phase of a cap-
ital trial is the equivalent of preparing for an entirely new
trial, and trial counsel must treat it as such.” Turner, 281 F.3d
at 891. Here, counsel did not speak with Dr. Gerow after
agreeing to let him testify for the prosecution. Counsel’s lack
of preparation for Dr. Gerow’s testimony is evident from
counsel’s lackluster performance at trial. During his cross-
examination of Dr. Gerow, counsel asked several questions
about whether Sechrest could be cured and whether counsel-
ing could help Sechrest. In response, Dr. Gerow described any
such efforts as “absolutely fruitless” and stated that Sechrest’s
case was a hopeless one.

In sum, some of the most damaging testimony presented
during the penalty phase of trial was elicited by Sechrest’s
own counsel, from a witness Sechrest’s counsel had originally
selected and could have prevented from testifying. Indeed, as
the state post-conviction court observed, “the ‘balance’ of Dr.
Gerow’s testimony [did] not favor Mr. Sechrest. It favor[ed]
the State.” Unsurprisingly, Sechrest’s counsel admitted at the
state court evidentiary hearing that Dr. Gerow’s testimony
was damaging and that counsel was unhappy with it. Had
counsel adequately prepared for his cross-examination of Dr.
Gerow, he would not have asked questions that elicited such
negative answers.

[25] For the foregoing reasons, we conclude that counsel’s
performance was deficient under prevailing professional

benefit of adequate information.” The district court’s finding, however, is
not supported by the record. Though the district court found that counsel
talked to Dr. Gerow on “at least three occasions,” the record reflects that
each of these conversations occurred nearly two months before counsel
decided to allow the prosecution to call Dr. Gerow as its witness.
 SECHREST v. IGNACIO 14017
norms and was not the product of sound strategy. Our conclu-
sion comports with that of the Nevada state post-conviction
court—the only court to conduct an evidentiary hearing on
this issue.

2.

[26] Because we have determined that counsel’s perfor-
mance was deficient, we must now decide whether “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Strickland, 466 U.S. at 694. It is clear that, if Sechrest’s
counsel had performed competently, Dr. Gerow would not
have been allowed to testify for the prosecution. Further, we
have already found that Dr. Gerow’s testimony, when consid-
ered in the context of the trial as a whole, likely played an
important role in the jury’s verdict imposing the death pen-
alty. Accordingly, we conclude that Sechrest has satisfied the
prejudice prong of Strickland. He is entitled to resentencing.16

CONCLUSION

With respect to the penalty phase, we hold that Sechrest’s
Sixth and Fourteenth Amendment right to a fair trial was vio-
lated by the prosecutor’s gross misconduct. We also hold that
Sechrest’s Sixth Amendment right to effective assistance of
counsel was violated when his trial attorney allowed Dr.
Gerow to testify for the prosecution. Because we do not find
either of these constitutional violations harmless, we reverse
the district court as to Sechrest’s sentence.

With respect to the guilt phase, we hold that Sechrest’s
Miranda rights were not violated, and affirm the district court
on this ground. We also hold, however, that Sechrest’s previ-
16
Because we conclude that Sechrest is constitutionally entitled to
resentencing for two reasons, we do not address the contention that Dr.
Gerow’s testimony violates Sechrest’s Fifth Amendment rights.
14018 SECHREST v. IGNACIO
ously defaulted claims—which include both guilt and penalty
phase claims—should not have been barred from federal
habeas review. We remand these claims to the district court
for appropriate consideration.

Should the district court deny or dismiss Sechrest’s guilt
phase claims after appropriate and timely consideration, we
instruct the district court to issue a writ of habeas corpus as
to the death sentences unless, within a reasonable time, the
State grants a new penalty phase trial or imposes a lesser sen-
tence consistent with the law. We also instruct the district
court to order Sechrest removed from death row during the
pendency of the proceedings. Finally, we instruct the district
court to order any other interim relief that it deems appropri-
ate.

AFFIRMED in part, REVERSED in part, and
REMANDED for proceedings consistent with this opinion.