Tracy Petrocelli v. Timothy Filson, et al.

Filing 273

ORDER granting Petitioner's ECF No. 162 Fourth Amended Petition with respect to Claim 12; directing Respondents, within 180 days, to either (1) grant Petitioner a new penalty-phase trial and initiate proceedings relative to that new pen alty-phase trial, or (2) vacate Petitioner's capital sentence and impose upon him a non-capital sentence, consistent with law; directing Clerk to enter judgment accordingly. Signed by Judge Robert C. Jones on 11/20/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRACY PETROCELLI,

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Petitioner,

3:94-cv-00459-RCJ-VPC
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vs.

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TIMOTHY FILSON, et al.,

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Respondents.

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ORDER

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In this capital habeas corpus action, in an order entered on October 9, 2013, the Court denied

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the petitioner, Tracy Petrocelli, habeas corpus relief (ECF No. 246). Judgment was entered on the

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same date (ECF No. 247). Petrocelli filed a “Motion to Alter or Amend Judgment Pursuant to Fed.

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R. Civ. Proc. 59(e)” (ECF No. 248), and the Court denied that motion on April 9, 2014 (ECF No.

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255). Petrocelli appealed, and the Ninth Circuit Court of Appeals ruled on July 5, 2017 (ECF No.

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264), and then filed an amended opinion on August 23, 2017 (ECF No. 265). The Court of Appeals

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filed its mandate on September 1, 2017 (ECF No. 266). On September 21, 2017, this Court ordered

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the mandate spread upon the record (ECF No. 268).

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The Court of Appeals affirmed this Court’s denial of relief with respect to Petrocelli’s

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conviction, but reversed this Court’s denial of relief with respect to his death sentence; the Court of

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Appeals remanded the case to this Court with the instruction that Petrocelli be granted relief with

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regard to his sentence. See Order and Amended Opinion (ECF No. 265). The instruction of the

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Court of Appeals is as follows:

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We affirm the district court’s denial of Petrocelli’s petition for a writ of
habeas corpus with respect to the conviction, but reverse with respect to the death
sentence. We remand with instructions to grant the writ as to the penalty unless,
within a reasonable time, the State grants a new penalty phase trial or imposes a lesser
sentence consistent with the law.
Id. at 40.
The Court has received briefing from the parties with respect to the form of this order (ECF
Nos. 270, 271, 272).
IT IS THEREFORE ORDERED that petitioner’s fourth amended petition for writ of

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habeas corpus (ECF No. 162) is GRANTED, with respect to Claim 12 of his fourth amended

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petition. The respondents shall, within 180 days of the date of entry of this order, either (1) grant

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petitioner a new penalty-phase trial, and initiate proceedings relative to that new penalty-phase trial,

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or (2) vacate petitioner’s capital sentence and impose upon him a non-capital sentence, consistent

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with law.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.

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20th day of _________________________, 2017.
Dated this _____ dayof November, 2017.

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UNITED STATES DISTRICT JUDGE
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