ZANE FLOYD, Petitioner-Appellant, v. TIMOTHY FILSON; ADAM PAUL LAXALT, Attorney General, Respondents-Appellees.
No. 14-99012
United States Court of Appeals for the Ninth Circuit
October 11, 2019
D.C. No. 2:06-cv-00471-PMP-CWH
Before: Marsha S. Berzon, John B. Owens, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland
OPINION
Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding
Argued and Submitted January 31,
Filed October 11, 2019
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court‘s denial of Zane Floyd‘s habeas corpus petition challenging his Nevada conviction and death sentence for four counts of first-degree murder.
As to Floyd‘s ineffective-assistance-of-trial-counsel claims raised for the first time in his second state petition, which the Nevada Supreme Court denied as untimely and successive, the panel held that because the claims would fail on the merits, it did not need to resolve whether section 34.726 of the Nevada Revised Statutes is adequate to bar federal review, or whether Floyd can overcome his procedural default. The panel held that Floyd‘s remaining ineffective-assistance-of-counsel claim that was raised and adjudicated in state court fails under AEDPA‘s deferential standards.
Regarding Floyd‘s claim that his constitutional rights were violated when the State‘s expert made reference during his testimony to test results that he had obtained from Floyd‘s expert, the panel held that the Nevada Supreme Court‘s conclusion on direct appeal that no constitutional error oсcurred was not contrary to or an unreasonable application of controlling Supreme Court case law.
Regarding Floyd‘s claim that the trial court violated his constitutional rights by failing to grant a change of venue, the panel held that the district court did not err when it reasoned that AEDPA limited its review to those materials before the state courts that had rejected the venue claim.
Regarding Floyd‘s claim that the trial court violated his constitutional rights by permitting the mother of a victim to testify extensively during the penalty phase about her son‘s difficult life and previous experiences with violent crime, the panel held that the Nevada Supreme Court‘s conclusion that the admission of the testimony did not unduly prejudice Floyd was not contrary to or an objectively unreasonable application of clearly established federal law.
Reviewing under AEDPA, the panel held that the Nevada Supreme Court‘s determination that the prosecutor‘s improper statement that Floyd had committed “the worst massacre in the history of Las Vegas” was harmless was neither contrary to nor an unreasonable application of Darden v. Wainwright, 477 U.S. 168 (1986). Reviewing de novo, the panel held that several of the prosecutor‘s other statements—suggesting that other decisionmakers might ultimately decide whether Floyd received the death рenalty, and implying that the jury could sentence Floyd to death to send a message to the community—were improper but did not so affect the fundamental fairness of the proceedings as to violate the Eighth Amendment or result in the denial of due process.
The panel declined to expand the certificate of appealability to include claims challenging Nevada‘s lethal injection protocol and courtroom security measures that caused certain jurors to see Floyd in prison garb and restraints.
COUNSEL
Brad D. Levenson (argued) and David Anthony, Assistant Federal Public Defenders; Rene Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.
Jeffrey M. Conner (argued), Deputy Assistant Attorney General; Heidi Parry Stern, Chief Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.
FRIEDLAND, Circuit Judge:
In 1999, Petitioner-Appellant Zane Michael Floyd shot and killed four people at a Las Vegas supermarket. A Nevada jury found Floyd guilty of four counts of first-degree murder, as well as several related offenses, and sentenced him to death. After the Nevada Supreme Court upheld his conviction and sentence on direct appeal and denied a petition for postconviction relief, Floyd sought a writ of habeas corpus in the United States District Court for the District of Nevada. Following a stay during which Floyd filed an unsuccessful second petition for postconviction relief in state court, the district court denied the federal habeas petition but issued a certificate of appealability as to various claims now before us. We affirm the district court‘s decision and deny Floyd‘s motion to expand the certificate of appealability.
I.
A.
Before dawn one morning in June 1999, Floyd called an escort service and asked
Floyd then walked about fifteen minutes to an Albertsons supermarket near his home. When he arrived at 5:15 am, he immediately began firing on store employees. He shot and killed four Albertsons employees and wounded another. The store‘s security cameras captured these events.
When Floyd exited the store, local police were waiting outside. Officers arrested him, and he quickly admitted to shooting the people in the Albertsons. Prosecutors charged Floyd with offenses that included multiple counts of first-degree murder and indicated that they would seek the death penalty.
B.
Numerous psychiatric experts examined Floyd and explored his background. On the day of his arrest, Floyd‘s public defenders retained Dr. Jakob Camp, a forensic psychiatrist who examined Floyd for three hours. Dr. Camp concluded that Floyd did not suffer from a mental illness
Shortly before trial, defense counsel also retained clinical neuropsychologist Dr. David L. Schmidt to conduct a full examination of Floyd. Dr. Schmidt concluded that Floyd suffered from ADHD and polysubstance abuse, but that he showed “[n]o clear evidence of chronic neuropsychological dysfunction.” He also diagnosed Floyd with a personality disorder that included “[p]aranoid, [s]chizoid, and [a]ntisocial [f]eatures.”
Discouraged by Dr. Schmidt‘s findings, which they worried would make Floyd unsympathetic to a jury, counsel turned to clinical neuropsychologist Dr. Thomas Kinsora. After reviewing Dr. Schmidt‘s report and a report from Floyd‘s childhood doctor, Dr. Kinsora was highly critical of Dr. Schmidt‘s work, questioning the validity of the tests that Dr. Schmidt had conducted. Dr. Kinsora advised Floyd‘s counsel that it was “not clear whether or not a more comprehensive assessment would have revealed ongoing deficits or not,” but that he “wouldn‘t be surprised to find some continued evidence of neurological problems” in light of the findings of one of the doctors who had examined Floyd as an adolescent. The defense subsequently unendorsed Dr. Schmidt as an expert, but not before the state trial court ordered it to provide the
Defense counsel also retained Dr. Frank E. Paul, a clinical psychologist and retired Navy officer, who investigated and described in detail Floyd‘s background and life history. Floyd‘s mother told Dr. Paul that she had used drugs and alcohol heavily earlier in her life, including when she was pregnant with her first child, but that she “stopped drinking and all drug use when she found herself pregnant with [Floyd] . . . but continued to smoke tobacco.” Dr. Paul also learned of an incident in which Floyd, at the age of eight, was accused of anally penetrating a three-year-old boy. Dr. Paul further learned that Floyd began using drugs and alcohol extensively in high school. Dr. Paul described Floyd‘s Marine Corps deployment to the U.S. base at Guantanamo Bay, Cuba as difficult, explaining that Floyd struggled with the stress and monotony of the deployment and drank extremely heavily during that period. Defense counsel originally named Dr. Paul as an expert but did not call him at trial and never disclosed Dr. Paul‘s report to the prosecution.
At the guilt phase of Floyd‘s trial, the jury convicted him of four counts of first-degree murder with use of a deadly weapon, one count of attempted murder with use of a deadly weapon, one count of burglary while in possession of a firearm, one count of first-degree kidnapping with use of a deadly weapon, and four counts of sexual assault with use of a deadly weapon.
During the penalty phase of Floyd‘s trial, the State argued that three statutory aggravating factors justified application of the death penalty: killing more than one person, killing people at random and without apparent motive, and knowingly creating
Dr. Dougherty diagnosed Floyd with ADHD and a mixed personality disorder with borderline paranoid and depressive features. He also discussed the “prenatal stage” of Floyd‘s development, and commented that his mother “drank alcohol, and she used drugs during her pregnancy,” including “during the first trimester.” In rebuttal, the prosecution called Dr. Louis Mortillaro, a psychologist with a clinical neuropsychology certificate, who had briefly examined Floyd and reached conclusions similar to Dr. Schmidt‘s based on Dr. Schmidt‘s testing. Abreu painted a detailed picture of Floyd‘s life, drawing on many of the same facts thаt Dr. Paul‘s report had mentioned. He particularly noted Floyd‘s mother‘s heavy drinking, including during her pregnancies.
During closing arguments, defense counsel urged the jury to refrain from finding that a death sentence was warranted. The mitigating factors defense counsel relied on in closing included Floyd‘s difficult childhood, his alcohol and substance abuse, his stressful military service, his ADD/ADHD, and his mother‘s substance abuse while she was pregnant with him.
After three days of deliberation, the jury sentenced Floyd to death. It found that all three statutory aggravating factors were present and that they outweighed Floyd‘s mitigating evidence.
C.
New counsel represented Floyd on his direct appeal, which the Nevada Supreme Court denied. Floyd v. State, 42 P.3d 249 (Nev. 2002) (per curiam). The U.S. Supreme Court then denied certiorari. Floyd v. Nevada, 537 U.S. 1196 (2003). Floyd filed a state petition for a writ of habeas corpus a little over a year later. The state trial court denied the petition on the merits, and the Nevada Supreme Court affirmed. Floyd v. State, No. 44868, 2006 Nev. LEXIS 851 (Nev. Feb. 16, 2006).
Floyd then filed a pro se habeas petition in the U.S. District Court for the District of Nevada. See
Floyd filed a second state habeas petition that included the new claims of ineffective assistance of trial counsel. The state trial court denied this petition on the merits and as untimely filed. The Nevada Supreme Court affirmed, holding that Floyd‘s second petition was untimely and successive. Floyd v. State, No. 51409, 2010 WL 4675234 (Nev. Nov. 17, 2010).
The federal district court then lifted the stay and reopened Floyd‘s habeas proceedings. It ultimately granted in part the State‘s motion to dismiss, concluding that Floyd‘s new claims that the Nevada Supreme Court had denied as untimely—including his new ineffective assistance of trial counsel claims—were procedurally defaulted, and that Floyd had not shown cause and prejudice for failing to raise his ineffective assistance of trial counsel claims in his first petition. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). The district court went on to deny Floyd‘s remaining claims on the merits, but it issued a certificate of appealability as to several issues, including whether Floyd could show cause and prejudice for the default of his ineffective assistance of trial counsel claims.
Floyd appealed, pressing each of the certified issues and also arguing that we should expand the certificate of appealability to encompass two more. We evaluate each of his arguments in turn.
II.
We review a district court‘s denial of habeas corpus de novo. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
The Antiterrorism and Effective Death Penalty Act (“AEDPA“) applies to Floyd‘s habeas petition. Under AEDPA, we may grant Floyd relief only if the Nevada Supreme Court‘s rejection of his claims “(1) was contrary to or involved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determination of the facts.” Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015). “[C]learly established federal law” in this context refers to law “as determined by the Supreme Court.”
III.
Floyd asserts numerous claims of ineffective assistance of trial counsel. He raised most of these claims for the first time in his second state petition, prompting the Nevada Supreme Court to deny
Unless a petitioner can show “cause and prejudice,” federal courts in habeas actions will not consider claims decided in state court on a state law ground that is independent of any federal question and adequate to support the state court‘s judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Floyd and the State disagree about whether section 34.726, as applied in his case, is adequate to bar federal review.1 Floyd contends that when he filed his second state habeas petition in 2007, Nevada did not clearly and consistently apply section
Given that Floyd‘s underlying ineffective assistance of trial counsel claims lack merit, we need not resolve whether the state law is adequate or, if it is, whether Floyd can overcome his procedural default and obtain federal review of the merits of his ineffective assistance claims. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). Even if we held in Floyd‘s favor on either of those questions and thus reached the merits of Floyd‘s ineffective assistance of trial counsel claims, we would affirm the district court‘s denial of relief.2
A.
To succeed on an ineffective assistance of counsel claim, Floyd must show that his counsel‘s performance “fell below an objective standard of reasonableness,” and that, if so, 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). With respect to the prejudice requirement, the Supreme Court has cautioned that “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). To determine the risk of such prejudice at the penalty phase of a capital trial, we consider whether it is reasonably probable that the jury otherwise “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death” in light of “the totality of the evidence” against the petitioner. Strickland, 466 U.S. at 695.
B.
Floyd‘s primary ineffective assistance of trial counsel claim is that his trial counsel failed to investigate and present mitigation evidence showing that Floyd suffers from fetal alcohol spectrum disorder (“FASD“) as a result of his mothеr‘s alcohol consumption while he was in utero. In support of this claim, Floyd offers a report from FASD expert Dr. Natalie Novick Brown. After reviewing the trial court record and other experts’ examinations of Floyd, Dr. Brown concluded that Floyd suffered from FASD and that the disorder could explain his actions on the day of the shooting. Floyd argues it is reasonably probable that had jurors been presented with evidence of FASD and its effects, they would have spared him a death sentence. Floyd acknowledges that trial counsel consulted seven experts, none of whom diagnosed Floyd with FASD, but he contends that those experts were inadequately prepared and lacked the expertise to present proper mitigating evidence regarding FASD.
We need not resolve whether Floyd‘s counsel‘s performance was deficient in failing to present expert testimony that Floyd suffers from FASD. Even assuming it was, there is no reasonable probability that, had the jury heard from an FASD expert, it would have concluded that
The State presented an extremely weighty set of aggravating factors at sentencing. First, the State charged that Floyd “created a great risk of death to more than one person by means of a weapon, device or course of action which would normally be hazardous to the lives of more than one person.”
In response, Floyd‘s counsel emphasized Floyd‘s developmental problems and mental illness, issues exacerbated by his early life experiences and military service. Counsel‘s mitigation arguments included multiple references to Floyd‘s mother‘s drinking while Floyd was in utero—a point that both mitigation consultant Abreu and Dr. Dougherty emphasized as well. Counsel and Dr. Dougherty both explicitly opined that Floyd‘s mother‘s substance abuse might be to blame for Floyd‘s mental condition. All in all, Floyd‘s counsel argued that Floyd acted “under the influence of extreme mental or emotional disturbance,” and that he “suffer[ed] from the effects, early effects of his mother‘s drinking, her ingested alcohol, drugs early on in her pregnancy.”
Consistent with these defense arguments, the mitigation instructions submitted
Given the defense‘s focus on Floyd‘s mother‘s drinking during pregnancy and its effects, testimony by an FASD expert would likely not have changed any juror‘s balancing of mitigating versus aggravating circumstances. For Floyd to have been prejudiced by the lack of testimony by an FASD expert, at least one juror would have had to have considered a formal FASD diagnosis more severe and debilitating than ADD/ADHD and Floyd‘s other mental illnesses, which the defense had suggested included effects on his mental state of his mother‘s drinking and drug use during pregnancy, but without using FASD terminology. In other words, at least one juror would have had to view a formal FASD diagnosis as a weightier mitigating factor than those presented. And that juror would have had to have placed so much additional weight on the FASD defense as to cause the mitigating circumstances to outweigh the State‘s significant aggravating evidence, even though they did not on the record before the jury. Both the limited additional contribution of the FASD mitigating factor as compared with the mitigation evidence presented and the especially shocking nature of Floyd‘s crime, during which he killed multiple unarmed people at close range, without provocation, and in their workplace, makes that switch in outcome unlikely. Given that the jury already had evidence before it that Floyd suffered from some mental illness and that his illness might have been related
This conclusion comports with our previous holdings that a capital petitioner is not necessarily prejudiced when counsel fails to introduce evidence that differs somewhat in degree, but not type, from that presented in mitigation. In Bible v. Ryan, 571 F.3d 860 (9th Cir. 2009), for instance, we held that a capital petitioner was not prejudiced by his attorney‘s failure to introduce medical evidence that he suffered from neurological damage. Id. at 870. We reasoned that because counsel presented evidence that the petitioner might have had brain damage from persistent drug and alcohol abuse, along with evidence of childhood events that could have led to brain damage, medical evidence of neurological damage would have been different only in degree. Id. at 871. Floyd‘s FASD argument resembles that of the petitioner in Bible—the jury heard the evidence that would have supported the FASD diagnosis as well as the implication that the evidence explained Floyd‘s behavior. And like the petitioner in Bible, who “murdered a nine-year-old child in an especially cruel manner,” Floyd “has a significant amount of aggravating circumstances that he would need to overcome,” id. at 872, making it unlikely that the jury would have imposed a different sentence based on mitigating evidence that differed only in degree from that which Floyd presented at trial.
Floyd urges us to follow the Fourth Circuit‘s decision in Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019), petition for cert. docketed, No. 18-1495 (May 31, 2019), in which that court affirmed a district court‘s conclusion that a capital petitioner‘s counsel had performed constitutionally deficiently in failing to present evidence of
Floyd further argues that counsel provided deficient performance in the penalty phase by failing to call Dr. Paul, the consulting military and mental health expert, to testify about Floyd‘s military service, early life, and other matters. We are skeptical that declining to call this expert was constitutionally deficient. See Hinton v. Alabama, 571 U.S. 263, 275 (2014) (“The selection of an expert witness is a paradigmatic example of the type of ‘strategic choic[e]’ that, when made ‘after thorough investigation of [the] law and facts,’ is ‘virtually unchallengeable.‘” (alterations in original) (quoting Strickland, 466 U.S. at 690)). Even assuming that counsel‘s choice in this regard was deficient, it did not prejudice Floyd. Like Floyd‘s FASD evidence, Dr. Paul‘s testimony would have been largely cumulative of the evidence of Floyd‘s substance abuse and mental health struggles actually presented at trial, and the testimony
therefore would have done little to offset the weighty aggravating evidence against Floyd.
C.
Floyd argues that his trial counsel‘s conduct during jury selection amounted to
For example, Floyd contends that his counsel erred in failing to successfully object to the trial court‘s dismissal of two prospective jurors. Floyd first argues that the trial court improperly or pretextually removed one venireperson from the venire for cause. Even assuming that the trial court erred in doing so, this does not show that Floyd‘s counsel was ineffective. On the contrary, Floyd‘s counsel attempted to rehabilitate the prospective jurors who had expressed hesitation about the death penalty, including the juror in question, and to allay the court‘s concerns. After the juror stated that she had scruples about the death penalty, counsel elicited a response from her that she “would have to follow the law.” But she then admitted that she would “invariably in all cases give a sentence less than death,” and the trial court dismissed her for cause.
Floyd next argues that the court improperly dismissed a second venireperson for improper concerns about language ability. After it came to light that this prospective juror was not a native English speaker, defense counsel questioned him about his degree from an English-speаking university. Nonetheless, the court concluded that the juror‘s English fluency was insufficient,
That the trial court dismissed these two potential jurors does not mean that counsel‘s attempts to rehabilitate them were deficient and that competent counsel would have sufficiently rehabilitated the two to keep them on the jury, especially because the court appears to have had legitimate concerns about both.
Floyd similarly argues that because the trial court refused to excuse allegedly biased venirepersons for cause, counsel wasted peremptory challenges on striking those individuals from the jury pool. It appears, however, that the trial court made no error by refusing to dismiss the prospective jurors in question. One of them, for instance, retracted her statement that she could not consider a sentence of life with parole after the trial court clarified that she was only required to “at least consider” it. And again, even if the trial court erred, Floyd‘s counsel‘s reaction was within the realm of permissible strategic choices: counsel chose between the two (admittedly unattractive) options of spending a peremptory challenge or taking the risk of seating a juror that сounsel had concluded would be unfavorable to Floyd. In other words, Floyd‘s counsel was not ineffective for attempting to make the best of the trial court‘s alleged errors.
Finally, Floyd contends in general terms that the voir dire format, in which the prosecution questioned all prospective jurors before the defense was permitted to question any, was prejudicial or caused his counsel to be ineffective. We struggle to discern precisely Floyd‘s theory of deficient performance or of prejudice. Even assuming that the trial
court’s format was prejudicial, counsel did object to it by moving for “attorney conducted, sequestered individual voir dire.” Trial counsel’s attempt to challenge the trial court’s procedures shows diligence, not ineffectiveness.
D.
Floyd’s counsel was not ineffective in cross-examining the State’s penalty-phase psychological expert witness, Dr. Mortillaro. Dr. Mortillaro reviewed the guilt-phase record materials and other psychological experts’ reports and data, including Dr. Schmidt’s unfavorable test
On cross-examination, defense counsel elicited testimony from Dr. Mortillaro that he had only interviewed Floyd for about ninety minutes and that he had only received Dr. Dougherty’s report the day before. Counsel also attempted to undermine Dr. Mortillaro’s reliance on Floyd’s scores from tests administered by Dr. Schmidt as the basis for Dr. Mortillaro’s conclusion, arguing that the results should have been thrown out entirely. Counsel succeeded in getting Dr. Mortillaro to admit that any individual psychologist has significant discretion in deciding whether the test score was valid enough to allow reliance on the raw data. Counsel then pointed out that Dr. Dougherty had looked at the same data and diagnosed Floyd with dissociative personality disorder rather than borderline personality disorder, and he elicited an admission from Dr. Mortillaro that individuals with borderline personality disorder may show dissociative symptoms.
Finally, counsel attempted to undermine Dr. Mortillaro’s minimization of Floyd’s ADD/ADHD. Counsel presented Dr. Mortillaro with his own prior testimony from another matter in which Dr. Mortillaro had stated “that 70 percent of those with attention deficit [disorder] still have it as an adult.” Dr. Mortillaro also conceded that even if a patient were to “outgrow” ADD or ADHD, the fallout from the childhood disorder “would stay with them.”
Floyd generally faults counsel for сhoosing to rely on cross-examination of Dr. Mortillaro rather than calling Floyd’s other consulting expert, Dr. Kinsora, to rebut Dr. Mortillaro’s testimony. The caselaw does not support Floyd’s argument. In prior cases in which we and other circuits
Floyd does not contend that counsel failed altogether to cross-examine Dr. Mortillaro about key issues, but rather that he failed to do so in a manner that Floyd now believes would have been more effective. But Floyd’s counsel did attempt to impeach Dr. Mortillaro’s testimony, including with information counsel obtained from experts he had hired. This was not constitutionally deficient performance.
E.
Floyd argues that his trial counsel was ineffective for failing to object to various jury instructions. Many of the arguments against the instructions Floyd now challenges would not have been legally supported or would have been foreclosed by then-governing law, so counsel was not ineffective for failing to raise them.
First, we disagree with Floyd that the jury should have been instructed at the
The federal courts of appeals that have considered this argument have uniformly rejected it, holding that a jury’s balancing inquiry in a capital case is a subjective and moral one, not a factual one. See United States v. Gabrion, 719 F.3d 511, 532–33 (6th Cir. 2013) (en banc); United States v. Runyon, 707 F.3d 475, 516 (4th Cir. 2013); United States v. Barrett, 496 F.3d 1079, 1107–08 (10th Cir. 2007); United States v. Fields, 483 F.3d 313, 346 (5th Cir. 2007); United States v. Sampson, 486 F.3d 13, 31–32 (1st Cir. 2007); United States v. Purkey, 428 F.3d 738, 749–50 (8th Cir. 2005).4 Floyd’s proposed instruction thus hardly flowed naturally from Apprendi, which did not involve a capital case and
Second, Floyd’s counsel was not ineffective for failing to challenge on constitutional grounds the penalty-phase jury instructions for the aggravating circumstance that “[t]he murder was committed upon one or more persons at random and without apparent motive.” At the time of Floyd’s trial, the Nevada Supreme Court had already rejected an identical constitutional challenge to this aggravating factor. See Geary v. State, 930 P.2d 719, 727 (Nev. 1996). Counsel was not ineffective for failing to raise this argument.
Third, no Strickland violation occurred when Floyd’s counsel declined to challenge a guilt-phase jury instruction that premeditation, an element of first-degree murder, “may be as instantaneous as successive thoughts of the mind.” Even assuming that this instruction was improper and that counsel’s decision not to challenge it was unreasonable, no prejudice resulted from use of the instruction. The jury had before it significant evidence that Floyd’s premeditation occurred in more
F.
Floyd’s remaining claim of ineffective assistance—that his trial counsel should have objected to Nevada’s use of the “great risk of death” aggravating circumstance—was raised and adjudicated in state court, so we review it under AEDPA’s deferential standards. The claim fails under those standards.
Floyd contends that his trial counsel should have objected to this aggravating circumstance as duplicative of another aggravating circumstance—the “multiple murders” factor—that the State charged. See
IV.
Floyd argues that his constitutional rights were violated when the State’s expert, Dr. Mortillaro, made reference during his testimony to test results that he had obtained from Floyd’s expert, Dr. Schmidt. The Nevada Supreme Court’s conclusion on direct appeal that no constitutional error occurred, Floyd v. State, 42 P.3d 249, 258–59 (Nev. 2002) (per curiam), was not contrary to or an unreasonable
Floyd argues at length that the Nevada Supreme Court wrongly determined that Dr. Schmidt’s report was not privileged work product.6 Although the Nevada Supreme Court drew on federal authority in reaching that cоnclusion, Floyd “simply challenges the correctness of the state evidentiary rulings,” and “he has alleged no deprivation of federal rights” that could entitle him to relief. Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). He similarly argues that the Nevada Supreme Court misapplied its own precedent, but a state court’s misreading of state law is not a ground for federal habeas relief.
Ake v. Oklahoma, 470 U.S. 68 (1985), does not support Floyd’s challenge to the use of Schmidt’s report either. The Supreme Court in Ake held that “due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation
Floyd further contends that our extension of Ake in Smith v. McCormick, 914 F.2d 1153, 1158–59 (9th Cir. 1990), should have compelled the Nevada Supreme Court to reach a different result. In Smith, we held that a capital defendant’s due process rights7 were violated when, instead of permitting an independent psychiatric evaluation, the trial court ordered a psychiatrist to examine the defendant and report directly to the court at a resentencing hearing. Id. at 1159–60. We reasoned that the petitioner’s “counsel was entitled to a confidential assessment of such an evaluation, and the strategic opportunity to pursue other, more favorable, arguments for mitigation.” Id. at 1160.
Indeed, the Supreme Court has held that mandatory disclosure schemes are permissible in criminal trials as long as they do not structurally disadvantage the defendant. See Wardius v. Oregon, 412 U.S. 470, 472 (1973) (“We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.” (emphasis added)). Nevada provides for reciprocal discovery, as it did at the time of Floyd’s trial, so Wardius was not contravened here. See
V.
Floyd next contends that the trial court violated his constitutional rights by failing to grant a change of venue.8 He argues that the district court erred when it rejected this claim in part on the ground that, of the 115 news articles Floyd submitted with his federal habeas petition to attempt to show that the jury was exposed to prejudicial pretrial publicity about his case, only three were in the record bеfore the state courts. Relying on Cullen v. Pinholster, 563 U.S. 170 (2011), the district court reasoned that
The district court did not err. Floyd argues that, under Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), the district court misapplied Pinholster to bar consideration of his 112 new articles. Floyd’s reliance on Dickens is misplaced. In Dickens, we held that AEDPA (as interpreted in Pinholster) did not bar a federal court from considering new evidence introduced to support a Martinez motion alleging ineffective assistance of trial and postconviction counsel as cause and prejudice for a procedural default. Dickens, 740 F.3d at 1319–20. Here, by contrast, Floyd faults the district court for failing to consider new evidence in the context of a change of venue claim decided on its merits in the state court and so reviewed under AEDPA deference. Floyd’s theory about how the Nevada Supreme Court erred has nothing to do with trial counsel’s performance and therefore does not implicate the Dickens rule.
Because Floyd makes no argument beyond the district court’s refusal to consider
VI.
Floyd argues, as he did on direct appeal, that the trial court violated his constitutional rights by permitting the mother of victim Thomas Darnell to testify extensively during the penalty phase about her son’s difficult life and previous experiences with violent crime. The Nevada Supreme Court held that parts of Nall’s testimony “exceeded the scope of appropriate victim impact testimony” and should not have been admitted under state evidentiary law, but that their admission did not unduly prejudice Floyd such that it rendered the proceeding fundamentally unfair. Floyd v. State, 42 P.3d 249, 262 (Nev. 2002) (per curiam). The Nevada Supreme Court’s rejection of this claim was not contrary to or an objectively unreasonable application of clearly established federal law.
The prosecution called Mona Nall, Darnell’s mother, to offer victim impact testimony during the penalty phase of trial. Nall told the jury how Darnell had thrived in the face of serious learning and developmental disabilities, going on to form close relationships with his family and members of the community. She testified that “the hurt has gone so deep” for those affected by his death. Nall also recounted an incident years earlier in which Darnell and his family had been kidnapped by two men who held the family hostage and sexually assaulted Nall’s daughter. Defense сounsel objected twice to this testimony and the trial court admonished the prosecution to “get to th[e] point.”
The Nevada Supreme Court did not unreasonably apply the relevant clearly established federal law in rejecting Floyd’s claim that this testimony violated his due process rights. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court held that in a penalty-phase capital trial, “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Id. at 827. The Court added that “[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial
Like the Nevada Supreme Court, we are troubled by the admission of some of Nall’s testimony. That court determined that although Payne did not necessarily bar Nall’s testimony about the hostage-taking and kidnapping incident, those parts of her testimony should not have been admitted under state evidentiary law because of its limited relevance and high risk of prejudice. We are additionally concerned about the propriety of Nall’s testimony about Darnell’s early life and developmental difficulties because of its limited relevance to Floyd’s impact on the victims (or on peoplе close to and surviving them) and its potential risk of prejudice. Eliciting extensive testimony about a horrible crime that had nothing to do with the defendant risks inappropriately affecting jurors who might feel that the victim’s family should be vindicated for all of its tragedies, not just for the one caused by Floyd.
Nevertheless, it was not unreasonable for the Nevada Supreme Court to conclude that the admission of Nall’s testimony did
The prosecutor indirectly referenced the irrelevant portions of Nall’s testimony in closing argument when he commented on “the tremendous tragedies . . . that Mona has suffered and had suffered with her son over the years, so many tragedies, so many hardships.” But this comment lacked detail and was in the context of a long description of the victim impact of Floyd’s crime, so the prosecution does not appear to have relied extensively on the improper testimony. In the face of the robust aggravating evidence that the State presentеd, the Nevada Supreme Court did not unreasonably apply clearly established Supreme Court law by holding that Floyd was not prejudiced by Nall’s statement or by the prosecutor’s references to it, so there was no due process violation. See Payne, 501 U.S. at 825. For the same reasons, any error in permitting Nall’s testimony about Darnell’s early life was harmless as there is no evidence that the testimony had “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (quotation marks omitted).
VII.
Floyd challenges numerous statements made by the prosecution as misconduct amounting to constitutional error.9 We agree that a subset of these statements was improper, but we hold that the impropriety is not a ground for habeas relief under the relevant standards of review.
The due process clause provides the constitutional framework against which we evaluate Floyd’s claims of prosecutorial misconduct. “The relevant question” under clearly established law “is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make
Darden factors—i.e., the weight of the evidence, the prominence of the comment in thе context of the entire trial, whether the prosecution misstated the evidence, whether the judge instructed the jury to disregard the comment, whether the comment was invited by defense counsel in its summation and whether defense counsel had an adequate opportunity to rebut the comment.
Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010). As the Supreme Court emphasized in Darden, “it is not enough that the prosecutors’ remarks were undesirable or even universally condemned,” 477 U.S. at 181 (citation omitted), because the effect on the trial as a whole
A.
In his direct appeal and first habeas petition, Floyd presented several claims that the prosecutor’s statements amounted to misconduct; we review those adjudicated claims under AEDPA. We agree with the Nevada Supreme Court that the prosecutor’s contention that Floyd had committed “the worst massacre in the history of Las Vegas” was improper. Floyd v. State, 42 P.3d 249, 260–61 (Nev. 2002) (per curiam). That court’s further determination that the comment was harmless, id. at 261, was not unreasonable. Although the Nevada Supreme Court cited the state’s codified harmless error doctrine, see
This conclusion was not objectively unreasonable under the Darden factors. Although the “worst massacre” comment came late in the trial and was not invited by the defense, the weight of the evidence against Floyd and the fact that the comment was not egregiously inflammatory make the Nevada Supreme Court’s determination reasonable. In Darden, for instance, the prosecutor made a series of comments far more inflammatory than this one.10 The Supreme Court nonetheless held that those comments did not render the petitioner’s trial fundamentally unfair
B.
Floyd raised additional claims in his second state habeas petition that statements by the prosecutor amounted to misconduct. The Nevada Supreme Court held that those claims were procedurally barred, Floyd v. State, No. 51409, 2010 WL 4675234, at *1 (Nev. Nov. 17, 2010), but because the State has forfeited any objection to the district court’s deсision to review them on the merits nonetheless, we consider them de novo.
Most of these claims are meritless, but we note two troubling arguments made by the prosecution. We find improper one set of statements characterizing the
Nevertheless, these comments did not “so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment.” Id. at 340. The statements did not quite as clearly suggest to the jury that Floyd would not be executed as did the offending remark in Caldwell. See id. at 325–26 (“[Y]our decision is not the final decision”; “[T]he decision you render is automatically reviewable by the Supreme Court.”). Defense counsel emphasized the jury’s responsibility during his closing argument, telling the jurors, “[w]e sit before you and we ask whether or not you’re going to kill somebody.” Moreover, the jury instructions clearly stated that the jurors “must assume that the sentence will be carried out.” This sufficiently avoided any “uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others,” so as to not require reversal. Id. at 333 (emphasis added).
The prosecution also argued during the penalty phase that the death penalty “sends a message to others in our community, not just that there is a punishment for a certain crime, but that there is justice.” This statement inappropriately implies that the jury could sentence Floyd to death to send a message, rather than making “an individualized determination.” Zant v. Stephens, 462 U.S. 862, 879 (1983). The harm of this statement was mitigated in part by jury instructions that emphasized the jury’s responsibility to weigh the specific aggravating and mitigating circumstances of the case. Both the defense and the prosecution also repeatedly emphasized and relied on the specific details of the crime at hand, encouraging the jury to make a determination based on the individual facts of the case. Finally, we agree with the district court’s holding that, in
VIII.
Floyd advances on appeal two claims outside the certificate of appealability issued by the district court. These uncertified claims challenge Nevada’s lethal injection protocol and courtroom security measures that caused certain jurors to see Floyd in prison garb and restraints. We construe this portion of his briefing as a motion to expand the certificate of appealability. 9th Cir. R. 22-1(e).
A petitioner meets his burden for a certificate of appealability if he can make “a ‘substantial showing of the denial of a
First, Floyd’s uncertified challenge to Nevada’s lethal injection protocol—a three-drug sequence of the anеsthetic midazolam, the opioid fentanyl, and the paralytic cisactracurium—is not yet ripe. In 2018, the manufacturer of Nevada’s supply of midazolam brought an action to enjoin its product’s use in executions. The manufacturer won, obtaining a preliminary injunction, Alvogen v. Nevada, No. A-18-777312-B (Nev. Dist. Ct. Sept. 28, 2018), which is currently on appeal to the Nevada Supreme Court. See State v. Alvogen, Inc., Nos. 77100, 77365 (Nev. 2019). As a result, for all practical purposes, Nevada presently has no execution protocol that it could apply to Floyd. A method-of-execution challenge is not ripe when the respondent state has no protocol that can be implemented at the time of the challenge. See Payton v. Cullen, 658 F.3d 890, 893 (9th Cir. 2011) (claim unripe because no protocol in place following state court invalidation of existing protocol). We cannot determine what drugs Nevada might attempt to use to execute Floyd, and we cannot adjudicate the constitutionality of an unknown protocol. Floyd’s claim is therefore unripe for federal review because “the injury is speculative and may never occur.” Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993) (citation omitted).
Second, Floyd’s uncertified and procedurally defaulted argument that his trial counsel was ineffective for failing to challenge various courtroom security measures fails. In Floyd’s second state habeas petition and instant federal petition, he contended that his trial counsel failed to object to the trial court’s forcing him to appear at voir dire in a prison uniform and restraints. The Nevada Supreme Court dismissed this claim as untimely and successive because it was first raised in Floyd’s second state petition, Floyd v. State, No. 51409, 2010 WL 4675234, at *1 (Nev. Nov. 17, 2010), and the district court dismissed it as procedurally defaulted. As with Floyd’s other defaulted ineffective assistance of counsel claims, because of the underlying claim’s
In light of the overwhelming evidence of Floyd’s guilt and the weight of the aggravating factors against him, any reasonable jurist would agree that the courtroom security measures had no substantial effect on the jury’s verdicts. See Walker v. Martel, 709 F.3d 925, 930–31 (9th Cir. 2013) (reversing the grant of habeas relief on a shackling-related ineffective assistance claim because the prejudicial effect of shackles was “trivial” compared to aggravating evidence against defendant who killed multiple victims during armed robberies); Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008) (holding that when evidence against the defendant is overwhelming, prejudice from shackling is mitigated). Even if trial counsel should have objected to the restraints, Floyd was
We therefore deny the motion to expand the certificate of appealability as to both uncertified claims.
IX.
For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief.