and Submitted January 31, 2019 San Francisco, California
from the United States District Court for the District of
Nevada D.C. No. 2:06-cv-00471-PMP-CWH Philip M. Pro, District
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
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.
Before: Marsha S. Berzon, John B. Owens, and Michelle T.
Friedland, Circuit Judges.
Corpus / Death Penalty
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
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
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 occurred was not contrary to or an
unreasonable application of controlling Supreme Court case
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.
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
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 penalty,
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
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.
FRIEDLAND, CIRCUIT JUDGE
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.
dawn one morning in June 1999, Floyd called an escort service
and asked the operator to send a female escort to his
parents' home in Las Vegas, where he had been living
since his discharge from the U.S. Marine Corps the previous
year. When a young woman sent by the service arrived, Floyd
threatened her with a shotgun and forced her to engage in
vaginal and anal intercourse, digital penetration, and oral
sex. At one point he removed a shell from his shotgun and
showed it to her, telling her that her name was on it. He
later put on a Marine Corps camouflage uniform and told her
that he planned to kill the first nineteen people he saw that
morning. Commenting that he would have already shot her had
he had a smaller gun on him, he told the woman she had one
minute to run before he would shoot her. She escaped.
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.
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.
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 that would impair
his ability to stand trial, noted that Floyd's
experiences during and after his time in the Marines might
have had a bearing on his actions that day, and suggested
that counsel obtain Floyd's adolescent health records to
learn more about an attention deficit/hyperactivity disorder
("ADHD") diagnosis for which Floyd had been
previously treated with the drug Ritalin. Floyd's counsel
eventually obtained records from two doctors who had treated
Floyd's mental health issues as an adolescent that
confirmed this type of diagnosis. Those doctors had diagnosed
Floyd with attention deficit disorder ("ADD"),
although they had also determined that Floyd did not have any
significant cognitive deficits.
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."
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 un-endorsed Dr.
Schmidt as an expert, but not before the state trial court
ordered it to provide the prosecution a copy of Dr.
Schmidt's report along with the associated raw testing
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
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.
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 a risk of death to more than one person. In arguing
that mitigating circumstances weighed against imposition of
the death penalty, the defense called (among other witnesses)
two experts hired by defense counsel: Dr. Edward Dougherty, a
psychologist specializing in learning disabilities and
education; and Jorge Abreu, a consultant with an organization
specializing in mitigation defense.
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 that Dr. Paul's report had
mentioned. He particularly noted Floyd's mother's
heavy drinking, including during her pregnancies.
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.
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
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).
then filed a pro se habeas petition in the U.S. District
Court for the District of Nevada. See 28 U.S.C.
§ 2254(a). The federal public defender was appointed as
counsel and filed an amended petition with new allegations,
including alleged ineffective assistance by Floyd's trial
counsel. The district court agreed with the State that Floyd
had not exhausted these new claims in state court and stayed
the federal proceedings so he could do so.
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).
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.
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.
review a district court's denial of habeas corpus de
novo. Robinson v. Ignacio, 360 ...