Zane Floyd v. Timothy Filson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ZANE FLOYD, No. 14-99012
Petitioner-Appellant,
D.C. No.
v. 2:06-cv-00471-
PMP-CWH
TIMOTHY FILSON; ADAM PAUL
LAXALT, Attorney General, ORDER AND
Respondents-Appellees. AMENDED
OPINION

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

Argued and Submitted January 31, 2019
San Francisco, California

Filed October 11, 2019
Amended February 3, 2020

Before: Marsha S. Berzon, John B. Owens,
and Michelle T. Friedland, Circuit Judges.

Order;
Opinion by Judge Friedland
2 FLOYD V. FILSON

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 occurred was not contrary to or an unreasonable
application of controlling Supreme Court case law.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 FLOYD V. FILSON 3

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 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 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.
4 FLOYD V. FILSON

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.

H. Louis Sirkin, Santen & Hughes, Cincinnati, Ohio, for
Amicus Curiae National Association for Public Defense.

Thomas C. Sand and Nicholas H. Pyle, Miller Nash Graham
& Dunn LLP, Portland, Oregon, for Amicus Curiae The
National Organization on Fetal Alcohol Syndrome.

Elizabeth Ballart and William Leiner, Disability Rights
California, Oakland, California, for Amici Curiae Disability
Law Center of Alaska, Disability Rights California, National
Disability Rights Network, and Nevada Disability Advocacy
& Law Center.

John L. Krieger, Dickinson Wright PLLC, Las Vegas,
Nevada; Justin J. Bustos, Dickinson Wright PLLC, Reno,
Nevada; for Amici Curiae Canadian Criminal Justice
Professors, Litigators, and Expert Witnesses.

Lisa Rasmussen, Law Office of Lisa Rasmussen, Las Vegas,
Nevada, for Amici Curiae The Directors of the Three
Research Centers of Birmingham City University’s School
of Law.
 FLOYD V. FILSON 5

ORDER

The opinion filed on October 11, 2019, reported at 940
F.3d 1082, is amended as follows.

On page 12 of the slip opinion, following , insert the footnote .

On page 14 of the slip opinion, replace with .

On page 15 of the slip opinion, replace with , and delete .

On page 16 of the slip opinion, replace with .
6 FLOYD V. FILSON

On page 17 of the slip opinion, replace
with .

On page 26 of the slip opinion, in the current footnote 5,
replace with .

With these amendments, the panel has unanimously
voted to deny Appellant’s petition for panel rehearing and
rehearing en banc. The full court has been advised of the
petition for rehearing en banc, and no judge has requested a
vote on whether to rehear the matter en banc. Fed. R. App.
P. 35. The petition for panel rehearing and rehearing en banc
is accordingly DENIED. No further petitions for panel
rehearing or rehearing en banc will be entertained.

OPINION

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
 FLOYD V. FILSON 7

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 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.

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.
8 FLOYD V. FILSON

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 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.

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
 FLOYD V. FILSON 9

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
data.

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
10 FLOYD V. FILSON

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 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.

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 that 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
 FLOYD V. FILSON 11

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 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.

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
12 FLOYD V. FILSON

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,
 FLOYD V. FILSON 13

2198 (2015). “[C]learly established federal law” in this
context refers to law “as determined by the Supreme Court.”
28 U.S.C. § 2254(d)(1). “Although an appellate panel may
. . . look to circuit precedent to ascertain whether it has
already held that the particular point in issue is clearly
established by Supreme Court precedent,” that precedent
cannot “refine or sharpen a general principle of Supreme
Court jurisprudence into a specific legal rule that th[e] Court
has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64
(2013) (per curiam).

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 them as untimely and successive.
Floyd v. State, No. 51409, 2010 WL 4675234, at *1 (Nev.
Nov. 17, 2010). The Nevada Supreme Court held that the
ineffective assistance of counsel claims raised for the first
time in Floyd’s second state habeas petition were
procedurally barred under section 34.726 of the Nevada
Revised Statutes, which states that absent “good cause
shown for delay, a petition that challenges the validity of a
judgment or sentence must be filed within 1 year” after
conviction or remittitur of any denied appeal “taken from the
judgment.” Nev. Rev. Stat. § 34.726(1).

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
14 FLOYD V. FILSON

federal review. 1 Floyd contends that when he filed his
second state habeas petition in 2007, Nevada did not clearly
and consistently apply section 34.726 to bar successive
petitions alleging ineffective assistance of counsel in capital
cases. He further argues that, even if the state law is
adequate, he can establish cause and prejudice under
Martinez v. Ryan, 566 U.S. 1 (2012), based on ineffective
assistance of initial state habeas counsel in failing to raise
claims of ineffective assistance of trial counsel.

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. 2 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

1
The Nevada Supreme Court also held that Floyd’s new claims were
barred by section 34.810 of the Nevada Revised Statutes, which requires
dismissal of claims that could have been raised in an earlier proceeding.
Nev. Rev. Stat. § 34.810(1)(b)(3). On appeal, the State does not contest
the district court’s determination that this application of section 34.810
was inadequate, and so it does not bar federal review, because the rule
was not consistently applied at the time of Floyd’s purported default.
2
The arguments in Floyd’s opening and reply briefs regarding
section 34.726 of the Nevada Revised Statutes address the same
ineffective assistance of counsel claims as do his Martinez arguments.
In Floyd’s petition for rehearing, he argues that we should reach other
constitutional claims that were also procedurally defaulted by section
34.726. Floyd forfeited any such argument by failing to present it in his
opening brief. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d
912, 919 (9th Cir. 2001).
 FLOYD V. FILSON 15

of trial counsel claims, we would affirm the district court’s
denial of relief. 3

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
mother’s alcohol consumption while he was in utero. In

3
Nor is a remand to the district court for further evidentiary
development appropriate because only “a habeas petitioner who asserts
a colorable claim to relief . . . is entitled to an evidentiary hearing.”
Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir. 1994) (emphasis
added).
16 FLOYD V. FILSON

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
mitigating factors outweighed aggravating factors such that
Floyd did not deserve a death sentence.

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.” Nev. Rev. Stat. § 200.033(3). Second, it
alleged that Floyd killed more than one person (indeed, four)
during the course of the offense that led to his conviction.
See id. § 200.033(12). Third, it alleged that the killings were
at random and without apparent motive, because Floyd “just
went to a place where he knew 18 people would be and shot
everybody he could see.” See id. § 200.033(9). The jury
 FLOYD V. FILSON 17

unanimously found that all three aggravating circumstances
existed with regard to all four victims.

In response, Floyd’s counsel emphasized Floyd’s
developmental problems and emotional instability, 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 to the jury included that Floyd’s
“[m]other use[d] alcohol and drugs during early pregnancy,”
that Floyd had been born prematurely, that the murders were
committed while Floyd was under the influence of
“[e]xtreme [m]ental or [e]motional [d]isturbance,” and that
Floyd had been “[i]nsufficiently [t]reated for ADHD [and]
other [e]motional-[b]ehavioral [p]roblems including
[d]epression.” Maternal alcohol and drug use was the first
mitigating factor on the list.

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
18 FLOYD V. FILSON

debilitating than ADD/ADHD and Floyd’s other
developmental problems, which the defense had suggested
included effects 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 developmental problems and that his
issues might have been related to his mother’s alcohol use
during pregnancy, and given the extreme aggravating
circumstances, it seems very unlikely—and so not
reasonably probable—that any juror would have had these
reactions.

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
 FLOYD V. FILSON 19

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 fetal alcohol
syndrome in mitigation, and that the petitioner was
prejudiced by this failure. Id. at 319. In some cases, FASD
evidence might be sufficiently “different from . . . other
evidence of mental illness and behavioral issues” to raise a
reasonable probability that a juror would not have imposed
the death penalty had it been presented. Id. at 318. But much
distinguishes Floyd’s case from that of the petitioner in
Williams. Floyd’s lawyers and experts explicitly argued that
his mother’s alcohol use while she was pregnant led to his
developmental problems in some form and therefore helped
explain his actions, whereas trial counsel in Williams
investigated the petitioner’s mother’s drinking “as evidence
of [the petitioner’s] difficult childhood, not of [fetal alcohol-
related disorders]” and never offered evidence to the jury
that the drinking could have caused Williams’s cognitive
20 FLOYD V. FILSON

issues. Id. at 309. The State submitted against Floyd three
aggravating factors, all involving a multiple-victim
shooting, whereas in Williams “the State only presented one
aggravating factor: that the [single] murder occurred in the
commission of a kidnapping.” Id. at 318. The jury that
imposed the death sentence on Floyd did not report difficulty
reaching a verdict, whereas in Williams “the jury sent a note
to the trial court stating it was deadlocked nine to three in
favor of death.” Id. at 308. In short, the petitioner in
Williams was prejudiced because his lawyers presented a
much weaker-than-available mitigation argument that was
insufficient to overcome an also weak aggravating argument
that clearly troubled some jurors. 4 That was not the situation
here. We also note that our conclusion is consistent with the
Fifth Circuit’s in Trevino v. Davis, 861 F.3d 545 (5th Cir.
2017), cert. denied, 138 S. Ct. 1793 (2018), in which that
court rejected an ineffective assistance of counsel claim
relating to the failure to present mitigating evidence of an
FASD diagnosis because the evidence would have been
outweighed by what the court viewed as very substantial
aggravating evidence. Id. at 549–51.

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.

4
Floyd’s postconviction investigator interviewed one juror who
stated that evidence of a “serious mental illness” would have “weighed
heavily” in her sentencing-phase deliberations. It does not follow that
this juror would have deemed FASD a sufficiently severe condition to
mitigate Floyd’s offenses, especially because she appears to have
considered insufficient the existing evidence of potential ties between
maternal alcohol use and Floyd’s state of mind.
 FLOYD V. FILSON 21

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 ineffective assistance of counsel. We
disagree. Much of his argument supposes that various
decisions by the trial court prejudiced him during jury
selection, that those decisions were erroneous, and that his
counsel was ineffective in failing to object to or otherwise
remedy these errors. But most of the trial court decisions he
challenges were not errors at all, and with respect to any that
may have been errors, we conclude that his counsel acted
within the bounds of professional competence in responding
to the court’s decisions.

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
22 FLOYD V. FILSON

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-speaking university.
Nonetheless, the court concluded that the juror’s English
fluency was insufficient, stating that it could “not take a
chance where the stakes [were] so high to both sides.”

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 counsel
 FLOYD V. FILSON 23

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.

Moreover, Floyd’s lawyers had the opportunity to
individually question numerous prospective jurors, eliciting
information about their views on topics including the death
penalty, psychology, alcoholism, and how they would
behave in a jury room. Counsel’s decision not to further
question each venireperson about his or her exposure to
media coverage of the shooting and ability to consider
mitigating evidence was not deficient. The questionnaires
that every prospective juror completed asked about these
issues, and the trial court asked all prospective jurors if
“there [is] anybody among you who feels unable to set aside
what they’ve read, seen, or heard” about the case. Floyd’s
counsel were entitled to rely on those responses, and their
mere failure to inquire further does not render their
performance deficient. See Fields v. Woodford, 309 F.3d
1095, 1108 (9th Cir. 2002) (“[W]e cannot say that failure to
inquire beyond the court’s voir dire was outside the range of
reasonable strategic choice or that it would have affected the
outcome.”); Wilson v. Henry, 185 F.3d 986, 991 (9th Cir.
1999) (rejecting argument “that trial counsel rendered
24 FLOYD V. FILSON

ineffective assistance by failing to focus on his client’s
criminal history during voir dire to discover potential juror
prejudice and determine whether jurors could follow
limiting instructions on such a history”).

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 results
that the defense provided the prosecution in discovery before
it un-endorsed Dr. Schmidt. Dr. Mortillaro also interviewed
Floyd himself. Based on these materials, Dr. Mortillaro
opined that—contrary to defense expert Dr. Dougherty’s
testimony—Floyd had not suffered brain damage, was of
average IQ, did not suffer delusions, could tell right from
wrong, and was not mentally ill.

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
 FLOYD V. FILSON 25

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 choosing 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 have recognized constitutionally deficient cross-
examination, there were glaring failures to ask even basic
questions, not—as here—a strategic choice between one
means of undermining the witness and another. See, e.g.,
Reynoso v. Giurbino, 462 F.3d 1099, 1112–13 (9th Cir.
2006) (counsel ineffective for failing to ask any questions
about a $25,000 reward that might have motivated key
witnesses’ testimony against the defendant); Higgins v.
Renico, 470 F.3d 624, 633 (6th Cir. 2006) (ineffective
assistance where counsel did not cross-examine key
prosecution witness at all because he felt unprepared to do
so, even though he “had plenty of ammunition with which to
impeach [the witness’s] testimony”).

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
26 FLOYD V. FILSON

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 penalty phase that it could impose a
death sentence only if it found that aggravating factors
outweighed mitigating factors beyond a reasonable doubt.
Floyd contends that the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), required that
the jury instructions include such a statement about burden
of proof. The Court in Apprendi held that, subject to an
exception for prior convictions, “any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490 (emphasis added). Floyd
characterizes the balance of aggravating and mitigating
circumstances as a “fact” governed by this rule.

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.
 FLOYD V. FILSON 27

2007); United States v. Purkey, 428 F.3d 738, 749–50
(8th Cir. 2005). 5 Floyd’s proposed instruction thus hardly
flowed naturally from Apprendi, which did not involve a
capital case and was decided just months before Floyd’s trial
began. Floyd’s counsel was not deficient for failing to make
an argument that was untested, an extension of newly minted
law, and (judging from the weight of subsequent authority)
likely to fail. See Engle v. Isaac, 456 U.S. 107, 134 (1982)
(“[T]he Constitution guarantees criminal defendants only a
fair trial and a competent attorney. It does not insure that
defense counsel will recognize and raise every conceivable
constitutional claim.”).

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.

5
We have never directly ruled on this question—nor do we today—
but we have at least twice expressed our skepticism of Floyd’s view. See
Ybarra v. Filson, 869 F.3d 1016, 1030–31 (9th Cir. 2017); United States
v. Mitchell, 502 F.3d 931, 993–94 (9th Cir. 2007). Floyd also argues that
counsel should have requested a reasonable doubt instruction based on
the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002),
which applied the principle from Apprendi to hold that every sentence-
enhancing fact, “no matter how the State labels it,” must be found beyond
reasonable doubt. Id. at 602. Ring was decided two years after Floyd’s
trial. In addition, Ybarra and Mitchell, as well as other circuits’ decisions
rejecting that argument, post-date Ring and thus defeat this version of
Floyd’s claim as well.
28 FLOYD V. FILSON

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 than an instant. Among other things, he
told his sexual assault victim that he planned to kill the first
nineteen people he saw, then walked for fifteen minutes
carrying the shotgun that he used to perpetrate the murders.
Even if counsel had succeeded in striking the “instantaneous
premeditation” instruction, there is no reasonable probability
that the jury would have found a lack of premeditation as a
result. See Strickland, 466 U.S. at 694.

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 Nev. Rev. Stat.
§ 200.033(3). Initial post-conviction counsel presented a
nearly identical argument 6 to the Nevada Supreme Court,

6
To the extent Floyd is now making a new argument that this
aggravating circumstance was impermissibly vague, we hold that
 FLOYD V. FILSON 29

which rejected it on the merits. The Nevada Supreme Court
held that the two aggravators were based on different facts
and served different state interests. It reasoned that “[o]ne is
directed against indiscriminately dangerous conduct by a
murderer, regardless of whether it causes more than one
death; the other is directed against murderers who kill more
than one victim, regardless of whether their conduct was
indiscriminate or precise.” Floyd v. State, No. 44868, 2006
Nev. LEXIS 851 (Nev. Feb. 16, 2006). Floyd argues in a
conclusory fashion that this decision was “arbitrary and
capricious” such that it was contrary to or an unreasonable
application of clearly established federal law, but he cites no
controlling Supreme Court precedent relevant to this
argument. His briefing focuses entirely on the legislative
history of Nevada’s aggravating factors and what he
contends are two conflicting strains of doctrine in that state’s
jurisprudence on the “great risk of death factor.” These state
law issues are not grounds for federal habeas relief, and we
are aware of no clearly established federal law that the
Nevada Supreme Court’s determination might have
contravened. See 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 412 (2000) (holding that “clearly established
Federal law” refers only to U.S. Supreme Court decisions at
time of alleged violation).

argument lacks merit. “[N]ot every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due process
violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam).
To the extent that Floyd is making a new argument in his reply brief that
substantial evidence did not support this jury instruction, we hold that
Floyd forfeited any such argument by failing to articulate it in his
opening brief. See Arpin, 261 F.3d at 919.
30 FLOYD V. FILSON

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
application of controlling Supreme Court caselaw.

Floyd argues at length that the Nevada Supreme Court
wrongly determined that Dr. Schmidt’s report was not
privileged work product. 7 Although the Nevada Supreme

7
Floyd argues that his counsel were ordered to turn over
Dr. Schmidt’s report “before defense counsel had even seen the report of
their expert.” That assertion is misleading. The court ordered the
defense to provide a copy of Dr. Schmidt’s report “before the close of
business on June 15, 2000.” Dr. Schmidt’s report is dated June 13, 2000.
In his declaration, Floyd’s counsel describes a phone call with Dr.
Schmidt on June 14 where Dr. Schmidt informed counsel that he was
“unable to find any neurological basis for Mr. Floyd’s actions.” “Upon
talking with Dr. Schmidt,” counsel “became skeptical about the quality
of his testing and decided to hire Dr. Kinsora” to review Dr. Schmidt’s
testing and analysis. So Floyd’s counsel knew basically what would be
in Dr. Schmidt’s report before they turned it over, whether or not they
had seen the actual report. Counsel had the opportunity to withdraw
Dr. Schmidt as an expert before turning over his report, as they
previously had done with Dr. Paul, but failed to do so. And Floyd’s
counsel admits that there was “no strategic reason to turn over a report
that [they] were not sure about using.” In light of this timeline, Floyd’s
argument that the prosecution’s use of Dr. Schmidt’s data violated the
work-product privilege might be more accurately framed as a result of a
poor strategic choice on defense counsel’s part not to withdraw
Dr. Schmidt as an expert, which could in turn be grounds for an
ineffective assistance of counsel claim. See McClure v. Thompson,
323 F.3d 1233, 1242–43 (9th Cir. 2003). But no such claim is before us.
 FLOYD V. FILSON 31

Court drew on federal authority in reaching that conclusion,
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
at the sentencing phase” of a capital case. Id. at 84. Floyd
received ample psychiatric evaluations and assistance prior
to sentencing, so Ake has little bearing here.

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 rights 8 were violated when, instead of
permitting an independent psychiatric evaluation, the trial
court ordered a psychiatrist to examine the defendant and

8
Floyd asserted in passing in his opening brief before this court that
the disclosure and use of Dr. Schmidt’s report violated his Fifth
Amendment rights against self-incrimination but provided no developed
argument supporting that assertion. We therefore express no view on
that issue. See e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)
(“We review only issues which are argued specifically and distinctly in
a party’s opening brief. We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim, particularly
when, as here, a host of other issues are presented for review.” (internal
citations omitted)).
32 FLOYD V. FILSON

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.

Floyd appears to argue that because, under Smith, a
defendant is entitled to a confidential assessment of the state-
provided psychiatric assessment and the chance to pursue
other strategies, he was entitled to claw back a document that
was disclosed in connection with designating an expert to
testify after he reversed course and removed the expert from
his witness list. The holding in Smith did not encompass
what Floyd seeks here, so the Nevada Supreme Court did not
act contrary to our precedent. And, in any event, Floyd’s
proposed rule is not clearly established by any Supreme
Court decision. Marshall v. Rodgers, 569 U.S. 58, 64 (2013)
(per curiam).

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 Nev. Rev. Stat. § 174.234
(1999).
 FLOYD V. FILSON 33

V.

Floyd next contends that the trial court violated his
constitutional rights by failing to grant a change of venue. 9
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 before
the state courts. Relying on Cullen v. Pinholster, 563 U.S.
170 (2011), the district court reasoned that AEDPA limited
its review to those materials before the state courts that had
rejected Floyd’s venue claim. See id. at 185 (“If a claim has
been adjudicated on the merits by a state court, a federal
habeas petitioner must overcome the limitation of
§ 2254(d)(1) on the record that was before that state court.”).

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

9
In Floyd’s opening brief, he asserts in a section heading that the
district court also erred by failing to consider his claim that the trial court
violated his rights by refusing to sever the sexual assault charges against
him from the murder charges. But he does not actually argue this point
or explain the alleged error, so we consider any such argument forfeited.
See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919
(9th Cir. 2001).
34 FLOYD V. FILSON

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 these documents—which we
conclude was not error—we need not consider whether the
Nevada Supreme Court’s denial of Floyd’s venue claim was
contrary to or unreasonably applied clearly established
federal law.

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. 28 U.S.C. § 2254(d).

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
 FLOYD V. FILSON 35

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 counsel
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
fundamentally unfair, the Due Process Clause of the
Fourteenth Amendment provides a mechanism for relief.”
Id. at 825 (citing Darden v. Wainwright, 477 U.S. 168, 179–
83 (1986)).

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 people close to and surviving them) and its potential risk
of prejudice. Eliciting extensive testimony about a horrible
36 FLOYD V. FILSON

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 not render Floyd’s trial fundamentally unfair.
Given the strength of the prosecution’s aggravating case
against Floyd, it seems unlikely that the jury was
substantially swayed by the irrelevant parts of Nall’s
testimony. The same characteristics that made Nall’s
testimony so objectionable—that it had nothing to do with
Floyd’s crimes or, at times, with Floyd’s victims—could
have diminished the testimony’s effect on the jury.

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 presented, 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.
 FLOYD V. FILSON 37

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. 10 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
the resulting conviction a denial of due process.’” Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Parker
v. Matthews, 567 U.S. 37, 45 (2012) (per curiam) (holding
that Darden provides relevant clearly established law on
habeas review of claims that statements by prosecutors
amounted to prosecutorial misconduct). In making that
determination, courts look to various

Darden factors—i.e., the weight of the
evidence, the prominence of the comment in
the 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

10
The district court determined that Floyd had exhausted all of these
claims, and the State does not challenge that ruling.
38 FLOYD V. FILSON

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 needs to be
evaluated in context. See United States v. Young, 470 U.S.
1, 17–20 (1985) (prosecutor’s exhortation that the jury “do
its job” and statements of personal belief were improper, but
they did not have prejudicial effect on the trial as a whole in
light of the comments’ context and overwhelming evidence
of guilt).

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 Nev. Rev. Stat.
§ 178.598, and not Darden, its reasoning can also be
understood as concluding that Floyd had not shown that the
misconduct “so infected the trial with unfairness” as to work
a denial of his due process rights. Darden, 477 U.S. at 181
(quotation marks omitted).

This conclusion was not objectively unreasonable under
the Darden factors. Although the “worst massacre”
 FLOYD V. FILSON 39

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. 11
The Supreme Court nonetheless held that those comments
did not render the petitioner’s trial fundamentally unfair in
light of the defense’s response and the strong evidence
against the petitioner. Id. at 180–83. And although the trial
court here did not specifically direct jurors to ignore the
prosecutor’s “worst massacre” comments, it did instruct
them that “arguments and opinions of counsel are not
evidence.” The Nevada Supreme Court’s determination was
therefore neither contrary to nor an unreasonable application
of Darden.

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

11
Darden enumerated a few of the prosecutor’s statements: “He
shouldn’t be out of his cell unless he has a leash on him and a prison
guard at the other end of that leash.” “I wish [the victim] had had a
shotgun in his hand when he walked in the back door and blown [the
petitioner’s] face off. I wish that I could see him sitting here with no
face, blown away by a shotgun.” “I wish someone had walked in the
back door and blown his head off at that point.” “He fired in the boy’s
back, number five, saving one [round]. Didn’t get a chance to use it. I
wish he had used it on himself.” “I wish he had been killed in the
accident, but he wasn’t. Again, we are unlucky that time.” 477 U.S.
at 180 n.12.
40 FLOYD V. FILSON

the State has forfeited any objection to the district court’s
decision 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 jury’s role
in imposing the death penalty. At the penalty phase, the
prosecution told the jury that “you’re not killing him,” that
“[y]ou are part of a shared process,” and that “even after you
render your verdict, there’s a process that continues.” These
comments suggested that other decisionmakers might
ultimately decide whether Floyd received the death penalty.
They therefore present concerns under Caldwell v.
Mississippi, 472 U.S. 320, 328–29 (1985), which held that
the Eighth Amendment makes it “constitutionally
impermissible to rest a death sentence on a determination
made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the
defendant’s death rests elsewhere.”

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
 FLOYD V. FILSON 41

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 context, these comments did not “incite the passions of the
jurors” and “did not include any overt instruction to the jury
to impose the death penalty . . . to send a message to the
community.” In light of the other arguments made at trial,
and the strong evidence against Floyd, the improper
argument by the prosecution did not “so infect[] the trial with
unfairness as to make the resulting conviction a denial of due
process.” Darden, 477 U.S. at 181 (quotation marks
omitted).

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
42 FLOYD V. FILSON

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 constitutional right,’ accomplished by
‘demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.’” Turner v.
McEwen, 819 F.3d 1171, 1178 n.2 (9th Cir. 2016) (first
quoting 28 U.S.C. § 2253(c)(2); and then quoting Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003)). Floyd makes no such
showing here, and we therefore deny his motion to expand
the certificate of appealability.

First, Floyd’s uncertified challenge to Nevada’s lethal
injection protocol—a three-drug sequence of the anesthetic
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
 FLOYD V. FILSON 43

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 weakness, we need not resolve whether the state law
under which it was deemed defaulted is adequate or whether
Floyd may show cause and prejudice under Martinez v.
Ryan, 566 U.S. 1 (2012).

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
44 FLOYD V. FILSON

defendant is overwhelming, prejudice from shackling is
mitigated). Even if trial counsel should have objected to the
restraints, Floyd was not prejudiced by that failure. See
Harrington v. Richter, 562 U.S. 86, 111 (2011) (explaining
that Strickland’s prejudice prong “asks whether it is
reasonably likely the result would have been different.”
(quotation marks and citation omitted)).

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.