940 F.3d 1082
9th Cir.2019Background:
- In June 1999 Zane Michael Floyd shot and killed four Albertsons employees; he was arrested, confessed, convicted of multiple charges including four counts of first-degree murder, and sentenced to death.
- Defense investigated extensive mitigation: ADHD/ADD, substance abuse, personality disorders, prenatal maternal alcohol use; multiple experts were consulted and some reports were disclosed or not called at trial.
- At sentencing the jury found three statutory aggravators (multiple murders, killings at random/without motive, creating great risk to more than one person) and rejected mitigating evidence, returning a death sentence.
- State postconviction relief and direct appeals failed; Floyd filed a federal habeas petition, which was stayed while he filed a second state habeas petition that the Nevada Supreme Court denied as untimely/successive.
- The federal district court denied habeas relief but issued a certificate of appealability on several claims (including ineffective assistance of trial counsel); this appeal followed and the Ninth Circuit affirms.
Issues:
| Issue | Floyd's Argument | Filson/State's Argument | Held |
|---|---|---|---|
| Ineffective assistance — failure to present FASD mitigation | Counsel failed to develop/present expert proof of fetal alcohol spectrum disorder which likely would have changed sentencing outcome | Defense presented overlapping mitigation (maternal alcohol use, ADHD, mental illness) and counsel’s choices were strategic; even if deficient, no prejudice given strong aggravators | No prejudice; habeas denied — FASD evidence would have been cumulative and unlikely to outweigh aggravators |
| Procedural default / state timeliness bar (Nev. Rev. Stat. §34.726) | Nevada’s application of the one‑year/successive petition rule was not consistently applied; Martinez excuse for default applies | State argues bar is adequate; Floyd’s new claims are defaulted and he cannot show cause/prejudice | Court avoids deciding adequacy; finds underlying ineffective-assistance claims meritless so no relief even if default excused |
| Disclosure/use of defense expert Dr. Schmidt’s report | Use of Schmidt’s testing by State violated work-product/privilege and deprived Floyd of due process | Report was disclosed under reciprocal discovery; defense had opportunity to withdraw expert; no federal right violated | No federal constitutional violation; state evidentiary rulings do not merit habeas relief |
| Jury selection / voir dire complaints (dismissed jurors, prosecutor-led voir dire) | Counsel ineffective for not preserving or remedying alleged voir dire errors and for wasting peremptories | Many court rulings were correct or strategic choices by counsel; counsel attempted rehabilitation and objected to procedures | No Strickland violation; counsel’s conduct was within strategic bounds |
| Prosecutorial misconduct and victim-impact testimony | Multiple prosecutor statements and victim testimony were improper and prejudicial (e.g., "worst massacre", victim’s unrelated trauma) | Some statements were improper but harmless in context of strong evidence and instructions; jury responsibility was preserved | Some comments improper but did not render trial fundamentally unfair under Darden/Payne; harmless error applies |
| Additional uncertified claims (LEI protocol / courtroom restraints) — motion to expand COA | Challenges to lethal-injection protocol and courtroom security merit appellate review | Lethal-injection claim unripe (no current protocol); restraints claim procedurally defaulted and, if reached, not prejudicial given overwhelming evidence | Motion to expand COA denied; claims dismissed as unripe or without prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (standards for ineffective assistance: deficient performance and prejudice)
- Coleman v. Thompson, 501 U.S. 722 (1991) (state-law procedural defaults bar federal habeas absent cause and prejudice)
- Martinez v. Ryan, 566 U.S. 1 (2012) (limited equitable exception to Coleman for ineffective assistance of initial state postconviction counsel)
- Harrington v. Richter, 562 U.S. 86 (2011) (high bar for showing prejudice under Strickland on habeas)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty must be submitted to jury beyond reasonable doubt)
- Ring v. Arizona, 536 U.S. 584 (2002) (Apprendi principle applied to capital sentencing factfinding)
- Ake v. Oklahoma, 470 U.S. 68 (1985) (due process requires access to psychiatric assistance when sanity is in issue)
- Payne v. Tennessee, 501 U.S. 808 (1991) (victim impact evidence admissible in penalty phase absent fundamental unfairness)
- Darden v. Wainwright, 477 U.S. 168 (1986) (prosecutorial misconduct standard under due process)
- Caldwell v. Mississippi, 472 U.S. 320 (1985) (impermissible to lead jury to believe responsibility for death sentence rests elsewhere)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless error standard for federal habeas review)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (AEDPA review generally limited to state-court record)
- Marshall v. Rodgers, 569 U.S. 58 (2013) (circuit precedent cannot superimpose new Supreme Court rule for AEDPA)
- Bible v. Ryan, 571 F.3d 860 (9th Cir. 2009) (mitigation evidence differing only in degree may not show prejudice)
- Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019) (counsel’s failure to present FASD mitigation can be prejudicial in different factual settings)
- Trevino v. Davis, 861 F.3d 545 (5th Cir. 2017) (rejection of FASD-based ineffective assistance where aggravating evidence overwhelming)
- Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017) (discussion of Apprendi/Ring issues in capital context)
- Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (Pinholster does not bar new evidence introduced to support a Martinez claim)