Floyd v. Filson, No. 14-99012 (9th Cir. 2019)
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The Ninth Circuit affirmed the district court's denial of petitioner's habeas corpus petition challenging his Nevada conviction and death sentence for four counts of first degree murder. Given that petitioner's underlying ineffective assistance of counsel claims lack merit, the panel need not resolve whether the relevant Nevada law was adequate or if it is, whether petitioner can overcome his procedural default and obtain federal review of the merits of his ineffective assistance claims. Even if the panel held in petitioner's favor in either of those questions and reached the merits of the claims, the panel would affirm the district court's denial of relief.
The panel also held that the Nevada Supreme Court's determination -- that petitioner's constitutional rights were not violated when the state's expert made reference during his testimony to test results that he had obtained from petitioner's expert -- was not contrary to or an unreasonable application of controlling Supreme Court case law. Furthermore, the panel rejected petitioner's claim regarding change of venue, the testimony of the mother of the victim, and improper statements by the prosecutor. Finally, the panel declined to expand the certificate of appealability.
Court Description: 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. 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
The court issued a subsequent related opinion or order on February 3, 2020.
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