George C. Gilmore v. Bill Armontrout, George C. Gilmore v. Bill Armontrout

LAY, Chief Judge,

with whom HEANEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge, join, specially dissenting.

I respectfully dissent.

The legal prejudice involved in the prosecutor’s misleading and inaccurate argument clearly undermined the accuracy of Gilmore’s sentencing process. The procedural bar of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is applicable only where the claim is “devoid of [constitutional deficiencies which] undermine[ ] the accuracy of the guilt or sentencing determination.” Smith v. Murray, 477 U.S. 527, 538-39, 106 S.Ct. 2661, 2668, 91…