Doyle (Antonio) v. State (Death Penalty-Pc)

 "[Al petition that challenges the validity of a judgment or
sentence must be filed within 1 year after entry of the judgment of
conviction or, if an appeal has been taken from the judgment, within 1
year after the Supreme Court issues its remittitur." NRS 34.726(1). Doyle
filed his second post-conviction petition for a writ of habeas corpus in the
district court twelve years after this court issued its remittitur on his
direct appeal. Therefore, the petition was untimely. 2
In order to overcome the delay in filing his second petition,
Doyle had the burden of demonstrating: (a) good cause for his failure to
present the claims in a timely manner and (b) actual prejudice. See NRS
34.726(1). Good cause may be demonstrated by showing ineffective
assistance of counsel or an impediment external to the defense such as a
factual or legal basis for a claim that was not reasonably available or
interference by officials making compliance impracticable. Hathaway v.
State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2003). However, good-cause
arguments must be made in a timely fashion and are also subject to the
procedural default rules. Id. "Actual prejudice requires [petitioner] to
show not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional
dimensions." State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225,

2Although the district court did not dismiss Doyle's petition under
NRS 34.810, most of his claims could have been raised in a prior
proceeding to secure relief or do not allege new or different grounds for
relief. Therefore, those• claims are successive and also barred by NRS
34.810.

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 232, 112 P.3d 1070, 1075 (2005) (internal quotations marks omitted).
Where, as here, the State affirmatively pleaded laches, a petition may be
dismissed if the delay in filing the petition prejudices the State in its
ability to retry the petitioner "unless the petitioner demonstrates that a
fundamental miscarriage of justice has occurred." NRS 34.800(1)(b). A
period exceeding five years between the judgment or a decision on direct
appeal and the filing of a petition creates a rebuttable presumption of
prejudice to the State. NRS 34.800(2). In order to be entitled to an
evidentiary hearing, Doyle must raise claims that are supported by
specific factual allegations that are not belied by the record and, if true,
would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984). Because the specific factual allegations contained in
Doyle's petition would not have entitled him to relief on any of his claims
the district court did not err by denying him an evidentiary hearing.
Good-cause arguments
First, Doyle contends that the district court erred by denying
his petition because our decision on his Batson 3 claim on direct appeal,
Doyle v. State, 112 Nev. 879, 889 & n.2, 921 P.2d 901, 908 & n.2 (1996),
overruled in part by Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2004),
was contrary to clearly established federal constitutional law and amounts
to structural error. The fact that a Batson error amounts to structural
error, however, does not relieve Doyle of his obligation to demonstrate
good cause and prejudice. See, e.g., Thornburg v. Mullin, 422 F.3d 1113,
1141 (10th Cir. 2005) ("[E]ven structural errors are subject to state

3 Batson v. Kentucky, 476 U.S. 79 (1986).

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 procedural bars."). This court is prohibited by statute from addressing the
merits of Doyle's Batson claim unless he establishes good cause for his 12-
year delay and failure to raise this claim in his first post-conviction
petition which was filed in 1997, NRS 34.726(1); NRS 34.810(1)(b), and
explains why this claim should not be barred by the doctrine of the law of
the case, see generally Arizona v. California, 460 U.S. 605, 618-19 & n.8
(1983).
The most Doyle did to demonstrate good cause in his petition
for a writ of habeas corpus was to make two conclusory allegations in
separate sections of his petition that (1) his "conviction and death sentence
are invalid under the state and federal constitutional guarantees of . . .
effective assistance of counsel . . . because prosecutors excused prospective
jurors on the basis of race" and (2) "previous counsel failed to raise
substantial constitutional issues during state post-conviction proceedings."
Doyle does not specifically allege that post-conviction counsel was
ineffective for failing to raise this Batson claim in his first post-conviction
petition or identify which substantial constitutional issues he is referring
to. Even if he had claimed that post-conviction counsel was ineffective, he
would have to demonstrate that counsel's performance was deficient for
failing to raise the Batson claim for a third time after it had been
previously denied on direct appeal and in a separate petition for
rehearing. This would be exceedingly difficult because, at the relevant
time, this court's interpretation of the law-of-the-case doctrine indicated
that "Mlle supreme court has no power to review its own judgments in the
same case, except upon petition for rehearing, in accordance with the rules
established for that purpose," State v. Loveless, 62 Nev. 312, 318, 150 P.2d

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 1015, 1017 (1944) (quoting Wright v. Carson Water Co., 22 Nev. 304, 308,
39 P. 872, 874 (1895)). It therefore is unlikely that Doyle would have been
able to demonstrate that counsel was deficient for failing to raise this
claim in his first petition for a writ of habeas corpus, even if he had raised
the alleged ineffective assistance of prior post-conviction counsel in a
timely fashion, an issue that is addressed further below. In the absence of
any other argument establishing good cause for Doyle's failure to raise
this claim in his first petition, 4 he has failed to demonstrate that the
district court erred by denying his petition with respect to this claim. 5

4 Doyle cites Bejarano v. State, 122 Nev. 1066, 1074, 146 P.3d 265,
271 (2006), and notes that it mentions a narrow exception to the law-of-
the-case doctrine, but he did not specifically argue that Bejarano amounts
to good cause. To the extent that Doyle's opening appellate brief can be
construed as making such an argument, we decline to address that claim
in the first instance, see McNelton v. State, 115 Nev. 396, 416, 990 P.2d
1263, 1276 (1999), except to observe that the relevant language in
Bejarano was based on an earlier decision in Pellegrini v. State, 117 Nev.
860, 34 P.3d 519 (2001), and therefore this exception had been available
for some time before Doyle filed his second state habeas petition.

5 Even if we were to apply the exception to the law-of-the-case
doctrine suggested in Pellegrini and Bejarano and Doyle also overcame the
applicable procedural bars, we are not persuaded that he would be entitled
to relief. In particular, he has not identified any controlling authority that
clearly required the trial court to revisit its denial of a Batson objection at
step one with respect to one juror when it subsequently required a neutral
explanation under step two for a subsequent objection with regard to
another juror. Cf. Higgins v. Cain, 720 F.3d 255, 267 (5th Cir. 2013)
(concluding there was a "want of authority" addressing whether trial court
had to revisit prior Batson objections that had been rejected based on no
prima facie showing of discrimination where later Batson objections
regarding other jurors proceeded to step two of Batson analysis); Williams
v. Haviland, 394 Fed. Appx. 397 (9th Cir. 2010) (unpublished decision)
continued on next page...

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 Second, Doyle contends that he was denied his statutory right
to post-conviction counsel under NRS 34.820(1)(a) because "[n]o attorney
was ever appointed to represent [him] for the purposes of his state post-
conviction proceedings." Instead, he contends that his counsel was only
appointed pursuant to SCR 250(IV)(H) 6 to investigate whether trial
counsel was effective. We conclude that Doyle's claim is belied by the
record. According to the district court minutes, Scott L. Bindrup accepted
appointment as counsel during a proceeding involving Doyle's first post-
conviction petition for writ of habeas corpus and request for the
appointment of counsel. Following his appointment, counsel filed a
memorandum of points and authorities in support of Doyle's pro se
petition. Therefore, Doyle has not demonstrated that he was denied his
statutory right to post-conviction counsel and the district court did not err

...continued
("Contrary to Williams's suggestion, Batson's general requirement that the
trial court assess 'all relevant circumstances' in deciding whether a
defendant has made a prima facie case for discrimination does not
'squarely address' the specific question whether a court must reconsider
its denial of a Batson motion with regard to one juror if it subsequently
finds a prima facie case of discrimination with regard to a different
juror."); United States v. Bernal-Benitez, 594 F.3d 1303, 131243 (11th Cir.
2010) (observing that court had located no precedent holding that "before
ruling on a Batson objection based on race, a trial court has a duty sua
sponte to reconsider any ruling it previously may have made on a Batson
objection based on the same race"). Accordingly, he has not shown that
this court's prior decision on direct appeal was contrary to clearly
established and controlling federal law.

6 Thisrule was adopted by ADKT 109 on February 20, 1990, and
went into effect on June 1, 1990. The provision was later repealed by this
court. See Nika v. State, 120 Nev. 600, 606, 97 P.3d 1140, 1145 (2004).

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 by denying his petition with respect to this claim. Furthermore, even
crediting Doyle's claim for purposes of argument, he does not offer good
cause to overcome the bar his delay in raising the claim creates.
Third, Doyle contends that post-conviction counsel was
ineffective for numerous reasons. While post-conviction counsel's
ineffectiveness may constitute good cause to raise claims in a successive
petition, Crump v. Warden, 113 Nev. 293, 934 P.2d 247 (1997); McKague v.
Warden, 112 Nev. 159, 912 P.2d 255 (1996), those claims are subject to
NRS 34.726(1), Riker, 121 Nev. at 235, 112 P.3d at 1077; Pellegrini u.
State, 117 Nev. 860, 869-78, 34 P.3d 519, 525-31 (2001), and must be
raised within a reasonable time after they become available, Hathaway,
119 Nev. at 252-53, 71 P.3d at 506.
Doyle filed his second post-conviction petition for a writ of
habeas corpus in district court more than nine years after remittitur
issued on the appeal from his first post-conviction petition. Doyle's only
claim explaining this period of delay is that the State's failure to comply
with federal court-ordered discovery excuses his delay. Doyle's counsel
filed a motion for leave to conduct discovery in federal court, seeking
evidence in the possession of the Las Vegas Metropolitan Police
Department, North Las Vegas Police Department, and the Clark County
District Attorney's Office nine months after remittitur. Doyle does not
specifically disclose which documents and information were sought
through discovery in federal court, when each of the documents was
obtained, or how the documents relate to each of the claims in his
successive petition. But there is some indication that these documents
were related to an alleged due process violation, see Mazzan v. Warden,

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 116 Nev. 48, 67, 993 P.2d 25, 37 (2000), and not one of his ineffective-
assistance-of-counsel claims. During a hearing on Doyle's petition, he
argued that he should not be faulted for waiting for the discovery
litigation to be resolved in federal court before filing his successive petition
in state court because, if he had proceeded with claims unrelated to the
federal discovery litigation in state court, he would have been precluded
from bringing additional claims• in a subsequent petition under the
procedural default rules because Nevada law requires all claims to be
brought in the same petition. While it is true that the procedural default
rules apply when a petitioner fails to include an available claim in a prior
petition, NRS 34.810(1)(b)(2), a petitioner can still overcome those bars by
showing good cause and prejudice, NRS 34.810(3). Doyle did not explain
why he could not have raised his claims that were unrelated to the
discovery litigation in a timely fashion. If the State's failure to comply
with federal court-ordered discovery can establish good cause to overcome
the procedural default rules, as Doyle contended, logically this same
failure would also provide good cause in a subsequent state petition filed
after the resolution of his claims which were unrelated to the discovery
litigation. We hold that the federal discovery litigation does not provide
good cause for Doyle's delay in raising any claims unrelated to the
discovery. And, because Doyle does not explain how his ineffective-
assistance-of-counsel claims relate to the discovery litigation, he has not
established good cause for his failure to raise these claims within a
reasonable amount of time after they became available. Therefore, he is
not entitled to relief on any of those claims and the district court did not
err by denying his petition with respect to those claims.

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 Fourth, Doyle contends that the State violated his due process
rights by withholding impeachment evidence and evidence of quid pro quo
agreements and coercion involving the State and several witnesses who
testified against him. See Mazzan, 116 Nev. at 67, 993 P.2d at 37.
Withheld evidence can establish good cause to overcome the procedural
default rules if the petitioner raises the due process claims within a
reasonable time after discovery of the withheld evidence. See id.; State v.
Huebler, 128 Nev., Adv. Op. 19, 275 P.3d 91, 95 n.3 (2012); Hathaway, 119
Nev. at 254-55, 71 P.3d at 507-08. The claim based on documents Doyle
contends demonstrate quid pro quo agreements and coercion was not
raised within a reasonable time because those documents were discovered
at least seven years before he filed his successive petition. As for the
alleged impeachment evidence, this document is not dated and Doyle does
not disclose when he discovered it. Therefore, it is difficult to determine
whether this claim was raised within a reasonable time after discovery of
the evidence. Even if both due process claims had been raised within a
reasonable amount of time after discovery of the withheld evidence, Doyle
has also failed to demonstrate actual prejudice. See Mazzan, 116 Nev. at
67, 993 P.2d at 37 (requiring petitioner to demonstrate that the withheld
evidence was material to establish actual prejudice). Therefore, he is not
entitled to relief and the district court did not err by denying his petition
with respect to these claims.
Fifth, Doyle claims that this court's opinion in McConnell v.
State, 120 Nev. 1043, 1049, 102 P.3d 606, 611 (2004), provides good cause
for his failure to bring his challenge to the felony aggravating
circumstance based on first-degree kidnapping in his first post-conviction

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 petition. Although good cause may be demonstrated by showing an
impediment external to the defense such as a factual or legal basis for a
claim that was not reasonably available, Doyle did not raise this claim
within a reasonable amount of time after this claim became available. See
Hathaway, 119 Nev. at 252-53, 71 P.3d at 506 (good cause arguments
must be made in a timely fashion and are also subject to the procedural
default rules). Therefore, the district court did not err by denying his
petition with respect to this claim.
Sixth, Doyle claims that this court's opinion in Byford v. State,
116 Nev. 215, 994 P.2d 700 (2000), provides good cause for his failure to
bring his instructional-error claim in his first post-conviction petition.
This court's decision in Nika, 124 Nev. at 1288-89, 198 P.3d at 850-51,
clarifies that the premeditation instruction given—known as the Kazalyn 7
instruction—was an accepted instruction until Byford, 116 Nev. at 234-38,
994 P.2d at 713-15, announced a change in state law. This change applies
to murder convictions that were not final when Byford was decided. Id.
Because Doyle's conviction was final when Byford was decided, see Colwell
v. State, 118 Nev. 807, 820, 59 P.3d 463, 472 (2002), Byford does not apply
to his case and he does not have good cause to raise this claim. 8

7 Kazalyn v. State, 108 Nev. 67, 857 P.2d 578 (1992).

8 Doyle also contends that the procedural default rules cannot be
applied to bar his successive petition because they are not applied in a
consistent manner in violation of the equal protection and due process
clauses. This court has rejected similar arguments. Riker, 121 Nev. at
235-42, 112 P.3d at 1076-82. Furthermore, Doyle has not demonstrated
that this court applies the procedural default rules in a subjectively
discretionary fashion. Therefore, this claim lacks merit.

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 Fundamental-miscarriage-of-justice arguments
When a petitioner cannot demonstrate good cause, the district
court may nonetheless excuse a procedural bar if petitioner demonstrates
that failure to consider the petition would result in a fundamental
miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at 537. A
fundamental miscarriage of justice requires "a colorable showing" that
petitioner is "actually innocent of the crime or is ineligible for the death
penalty." Id.
Doyle argues he is actually innocent of first-degree murder
because he lacked the mens rea to commit the crime. However, "[w]ithout
any new evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the merits
of a barred claim." Schlup v. Delo, 513 U.S. 298, 316 (1995). Doyle did not
allege that there was insufficient evidence to support his first-degree
murder conviction on direct appeal and he has not presented any new
evidence indicating that he lacked the mens rea to commit first-degree
murder in his successive petition. In fact, Doyle provides little, if any,
analysis of the evidence presented at trial in support of this contention.
Therefore, he is not entitled to relief on this claim.
Doyle also argues that he is ineligible for the death penalty
because his felony aggravator is invalid under McConnell, 120 Nev. 1043,
102 P.3d 606 (2004), and his mitigation evidence is so strong that no
rational juror would have found him death eligible by determining that
the remaining aggravating circumstances were not outweighed by the
mitigating circumstances. "Where the petitioner has argued that the

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 procedural default should be ignored because he is actually ineligible for
the death penalty, he must show by clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have found him
death eligible." Pellegrini, 117 Nev. at 887 34 P.3d at 537 (citing Sawyer
v. Whitley, 505 U.S. 333, 336 (1992)).
Because Doyle's aggravating circumstance for committing
murder while he was engaged in the commission of or an attempt to
commit any first-degree kidnapping was also the predicate for felony
murder, that aggravating circumstance was impermissible under the
United States and Nevada constitutions as the jury verdict does not
indicate whether felony murder or premeditated and deliberate murder
formed the basis for the jury's finding of guilt. See McConnell, 120 Nev. at
1069, 102 P.3d at 624; Bejarano v. State, 122 Nev. 1066, 1078, 146 P.3d
265, 274 (2006) (applying McConnell retroactively). Therefore, this
aggravating circumstance should not have been considered by the jury.
Although two aggravating circumstances remain, this court must reweigh
the aggravating circumstances against the mitigating circumstances to
determine whether Doyle remains death eligible. See, e.g., Servin v. State,
117 Nev. 775, 786, 32 P.3d 1277, 1285 (2001). Doyle argues that this court
should also consider his new mitigation evidence in this analysis because
in State v. Haberstroh, 119 Nev. 173, 184, 69 P.3d 676, 684 (2003), this
court considered the mitigation evidence discovered during a post-
conviction evidentiary hearing in its analysis. Doyle is mistaken. As we
explained in our order denying the petition for rehearing in that case, "we
did not consider mitigating evidence not presented during the trial in
concluding that the invalid [aggravator] was not harmless beyond a

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 reasonable doubt." State v. Haberstroh, Docket No. 38600, at 2 n.1 (Order
Denying Rehearing, August 29, 2003).
The first aggravating circumstance found by the jury was that
the murder was committed by a person under a sentence of imprisonment.
See NRS 200.033(1). Two and one half years before the murder, Doyle
pleaded guilty to attempted burglary, was sentenced to three years in
prison, his sentence was suspended, and he was placed on probation for a
period not to exceed three years. Sixteen months later, Doyle's probation
was revoked and he was sentenced to prison. He was released on parole
on October 19, 1993, three months before the murder.
The second aggravating circumstance found by the jury was
that the murder was committed to avoid or prevent a lawful arrest or to
effect an escape from custody. See NRS 200.033(5). This is the most
serious of the aggravating circumstances found by the jury. The State
presented evidence that the murder victim threatened to call the police
and report Doyle and his codefendants for having raped her earlier that
night at their apartment. According to the State, the victim was
murdered to prevent her from reporting the incident to the police.
We conclude that these aggravating circumstances were not
outweighed by the mitigating circumstances and that Doyle has not
demonstrated by clear and convincing evidence that but for the McConnell
error "no reasonable juror would have found him death eligible."
Pellegrini, 117 Nev. at 887, 34 P.3d at 537 (citing Sawyer, 505 U.S. at
336). Therefore, the failure to consider the petition will not result in a
fundamental miscarriage of justice.

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 Having considered Doyle's contentions 9 and concluded that he
is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.H)

Parraguirre r
J.
Gibbons - Pickering

CHERRY, J., with whom SAITTA, J., agrees dissenting:
I would reverse the district court's order. This court's failure
to remedy the structural error raised by Doyle in his direct appeal and
petition for rehearing was an impediment external to the defense that
resulted in a manifest injustice. The court should have concluded that the
district court clearly erred by rejecting Doyle's Batson challenge in our
decision on direct appeal in 1996 because he demonstrated that it is more
likely than not that the State struck at least one prospective juror because
of race. The court erred by concluding that, "after accepting the State's

9 Doyle does not make any good cause or prejudice arguments with
respect to a number of claims in his opening brief. He merely argues that
the cumulative effect of these errors warrants reversal. Because all of
these claims are procedurally barred and Doyle did not demonstrate good
cause with respect to any of his claims, he is not entitled to relief.

mThe Honorable Michael L. Douglas, Justice, did not participate in
the decision of this matter.

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 explanation for the exclusion of [two African-American prospective jurors],
it was not error for the district court to refuse to require an explanation
for the exclusion of Ms. Velasquez," the first African-American struck by
the State after the conclusion of for-cause challenges. Doyle, 112 Nev. at
889 n.2, 921 P.2d at 908 n.2. This conclusion was contrary to clearly
established federal constitutional law. Batson required the State to
provide a race-neutral explanation for striking Velasquez after the district
court found a prima facie case of intentional discrimination. Batson v.
Kentucky, 476 U.S. 79, 98 (1986). The State's attempt to strike every
African American in the venire was certainly sufficient to establish a
prima facie case of intentional discrimination. The State's failure to
provide a race-neutral reason was also evidence of discrimination. See
Paulin° v. Harrison, 542 F.3d 692, 703 (9th Cir. 2008). Finally, there was
no circumstantial evidence in the record that explained why Velasquez
was struck and other similarly situated veniremembers were not struck.
Five of the twelve prospective jurors who were not struck and remained on
the jury, like Velasquez, had contact with the criminal justice system or a
close relative who had contact with the criminal justice system, as did two
of the three alternate jurors, one of whom served as a juror during the
penalty phase. This kind of disparate treatment is evidence of purposeful
discrimination. See Ford v. State, 122 Nev. 398, 405, 132 P.3d 574, 578-79
(2006). "Discriminatory jury selection is particularly concerning in capital
cases [such as this] where each juror has the power to decide whether the
defendant is deserving of the ultimate penalty, death." Conner u. State,
130 Nev., Adv. Op. 49, 327 P.3d 503, 507 (2014). The failure of this court
to remedy the Batson error on direct appeal resulted in a manifest

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 injustice. See United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003)
("There is. . . usually little question that any Batson error we find would
affect a defendant's substantial rights the violation of which would result
in manifest injustice." (internal quotation marks omitted)).
Additionally, we have the power to disregard the law-of-the-
case doctrine to correct a manifest injustice. Bejarano v. State, 122 Nev.
1066, 1074, 146 P.3d 265, 271 (2006) ("[T]he doctrine of the law of the case
is not absolute, and we have the discretion to revisit the wisdom of our
legal conclusions if we determine that such action is warranted."); Arizona
v. California, 460 U.S. 605, 618 n.8 (1983) ("Under law of the case
doctrine, as now most commonly understood, it is not improper for a court
to depart from a prior holding if convinced that it is clearly erroneous and
would work a manifest injustice."), decision supplemented, 466 U.S. 144
(1984); see also Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 630, 632, 173
P.3d 724, 729, 730 (2007) (suggesting an exception to the law-of-the-case
doctrine when "there has been an intervening change in controlling law").
Furthermore, Doyle can establish good cause for his failure to
raise this claim in his first post-conviction petition for a writ of habeas
corpus because there has been an intervening change in this court's
interpretation of the law-of-the-case doctrine between the time he filed his
first post-conviction petition for a writ of habeas corpus and his second
post-conviction petition. Compare Sherman Gardens Co. v. Longley, 87
Nev. 558, 563, 491 P.2d 48, 52 (1971); State v. Loveless, 62 Nev. 312, 318,
150 P.2d 1015, 1017 (1944); Wright v. Carson Water Co., 22 Nev. 304, 308,
39 P. 872, 874 (1895)), with Hsu, 123 Nev. at 630, 632, 173 P.3d at 729-30;
Befarano, 122 Nev. at 1074, 146 P.3d at 271. At the time Doyle filed his

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 first post-conviction petition, this court had declared that "[t]he supreme
court has no power to review its own judgments in the same case, except
upon petition for rehearing, in accordance with the rules established for
[that] purpose." Sherman Gardens Co., 87 Nev. at 563, 491 P.2d at 52;
Loveless, 62 Nev. at 318, 150 P.2d at 1017. Since Doyle filed his first post-
conviction petition, however, this court has recognized the narrow
exceptions discussed above. Thus, Doyle has good cause for raising this
claim in his second post-conviction petition because the legal basis for his
claim was not reasonably available in 1997 when he filed his first post-
conviction petition for relief. See Hathaway v. State, 119 Nev. 248, 252-53,
71 P.3d 503, 506 (2003).
In my opinion, Doyle need not establish actual prejudice. See,
e.g., Owens v. United States, 483 F.3d•48, 64 (1st Cir. 2007) ("[A]
defendant who is seeking to excuse a procedurally defaulted claim of
structural error need not establish actual prejudice."); see also Williams v.
Woodford, 396 F.3d 1059, 1069 (9th Cir. 2005) (Rawlinson, J., dissenting).
But even if such a showing is required, I believe that the structural error
is sufficient. A structural defect, such as the one which occurred in this
case, affects the framework within which the trial proceeds and,
lw]ithout these basic protections, a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence, and no
criminal punishment may be regarded as fundamentally fair." Arizona u.
Fulminante, 499 U.S. 279, 310 (1991) (quoting Rose v. Clark, 478 U.S. 570,
577-578 (1986)). Consequently, Doyle can demonstrate that the Batson
error worked "to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions." State v. Eighth

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 Judicial Dist. Court (Riker), 121 Nev. 225, 232, 112 P.3d 1070, 1075
(internal quotations omitted). For these reasons, I would conclude that
the district court erred by denying Doyle's petition as to the Batson claim.

J.

cc: Hon. Jennifer P. Togliatti, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
Antonio Lavon Doyle

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