FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZANE FLOYD,

Petitioner-Appellant,

v.

TIMOTHY FILSON; ADAM PAUL 

LAXALT, Attorney General,

Respondents-Appellees.

No. 14-99012

D.C. No.

2:06-cv-00471-

PMP-CWH

ORDER AND 

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 <whether 

Floyd can overcome his procedural default and obtain 

federal review of the merits of his ineffective assistance 

claims.>, insert the footnote <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).>.

On page 14 of the slip opinion, replace <Floyd’s counsel 

emphasized Floyd’s developmental problems and mental 

illness> with <Floyd’s counsel emphasized Floyd’s 

developmental problems and emotional instability>.

On page 15 of the slip opinion, replace <Floyd’s other 

mental illnesses> with <Floyd’s other developmental 

problems>, and delete <on his mental state>.

On page 16 of the slip opinion, replace <the jury already 

had evidence before it that Floyd suffered from some mental 

illness and that his illness might have been related to his 

mother’s alcohol use during pregnancy> with <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>.
6 FLOYD V. FILSON

On page 17 of the slip opinion, replace <mental illness> 

with <developmental problems>.

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

replace <Arpin v. Santa Clara Valley Transp. Agency, 261 

F.3d 912, 919 (9th Cir. 2001)> with <Arpin, 261 F.3d at 

919>.

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 firstdegree 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 unendorsed 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-yearold 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 alcoholrelated 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 crossexamination, 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 sentenceenhancing 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 argument6 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 rights8 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 stateprovided 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 methodof-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.