Floyd v. Baker

• Decision Date: 22 September 2014
• Docket Number: No. 2:06–cv–0471–PMP–CWH.,2:06–cv–0471–PMP–CWH.
• Citation: 47 F.Supp.3d 1148
• Court: U.S. District Court — District of Nevada
• Parties: Zane FLOYD, Petitioner, v. Renee BAKER, et al., Respondents.

47 F.Supp.3d 1148

Zane FLOYD, Petitioner

v.Renee BAKER, et al., Respondents.

No. 2:06–cv–0471–PMP–CWH.

United States District Court, D. Nevada.

Signed Sept. 22, 2014.

Jennifer Yim, Tiffani (Danielle) Hurst, Gerald Bierbaum, Federal Public Defender, Las Vegas, NV, for Plaintiff.

Thom Gover, Nevada Attorney General's Office, Las Vegas, NV, for Respondents.

ORDER

PHILIP M. PRO, District Judge.

Introduction

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Zane Floyd, a Nevada prisoner sentenced to death. The case is before the court for resolution of the merits of the claims remaining in Floyd's second amended petition for a writ of habeas corpus, and with respect to a motion for evidentiary hearing. The court denies the second amended petition. The court finds that an evidentiary hearing is not warranted, and denies the motion for evidentiary hearing. The court grants Floyd a certificate of appealability with respect to three of his claims.

Background Facts and Procedural History

In its March 13, 2002, decision on Floyd's direct appeal, the Nevada Supreme Court described, as follows, the factual background of the case, as revealed by the evidence at trial:

Early in the morning on June 3, 1999, Floyd telephoned an “outcall” service and asked that a young woman be dispatched to his apartment. As a result, a twenty-year-old woman came to Floyd's apartment around 3:30 a.m. As soon as she arrived, Floyd threatened her with a shotgun and forced her to engage in vaginal intercourse, anal intercourse, digital penetration, and fellatio. At one point he ejected a live shell from the gun, showed it to the woman, and said that her name was on it. Eventually Floyd put on Marine Corps camouflage clothing and said that he was going to go out and kill the first people that he saw. He told the woman that he had left his smaller gun in a friend's vehicle or he could have shot her. Eventually he told her she had 60 seconds to run or be killed. The woman ran from the apartment, and around 5:00 a.m. Floyd took his shotgun and began to walk to an Albertson's supermarket which was about fifteen minutes by foot from his apartment.

Floyd arrived at the supermarket at about 5:15 a.m. The store's security videotape showed that immediately after entering the store, he shot Thomas Michael Darnell in the back, killing him. After that, he shot and killed two more people, Carlos Chuck Leos and Dennis Troy Sargeant. Floyd then encountered Zachary T. Emenegger, who attempted to flee. Floyd chased him and shot him twice. Floyd then leaned over him and said, “Yeah, you're dead,” but Emenegger survived. Floyd then went to the rear of the store where he shot Lucille Alice Tarantino in the head and killed her.

As Floyd walked out the front of the store, Las Vegas Metropolitan Police Department (LVMPD) officers were waiting for him. He went back in the store for a few seconds and then came out again, pointing the shotgun at his own head. After a police officer spoke with him for several minutes, Floyd put the gun down, was taken into custody, and admitted to officers that he had shot the people in the store.

The jury found Floyd guilty of four counts of first-degree murder with use of a deadly weapon, one count of attempted murder with use of a deadly weapon, one count of burglary while in possession of a firearm, one count of first-degree kidnapping with use of a deadly weapon, and four counts of sexual assault with use of a deadly weapon.

The jury found the same three aggravating circumstances in regard to each of the murders: the murder was committed by a person who knowingly created a great risk of death to more than one person by means which would normally be hazardous to the lives of more than one person; the murder was committed at random and without apparent motive; and the defendant had, in the immediate proceeding, been convicted of more than one murder. For each murder, the jury imposed a death sentence, finding that the aggravating circumstances outweighed any mitigating circumstances.

For the other seven offenses, the district court imposed the maximum terms in prison, to be served consecutively. The court also ordered restitution totaling more than $180,000.00.

Floyd v. State, 118 Nev. 156, 161–63, 42 P.3d 249, 253–54 (2002), cert. denied, 537 U.S. 1196, 123 S.Ct. 1257, 154 L.Ed.2d 1033 (2003), overruled in part by Grey v. State, 124 Nev. 110, 178 P.3d 154 (2008) (copies of the opinion are in the record at Petitioner's Exhibit 6, and Respondents' Exhibit 7).¹ Floyd pursued a direct appeal to the Nevada Supreme Court, and that court affirmed Floyd's conviction and sentence on March 13, 2002. Id.

On June 19, 2003, Floyd filed a petition for writ of habeas corpus in the state district court, and he filed a supplement to that petition on October 6, 2004. Respondents' Exhibits 9, 11. That petition was denied in an order filed on February 4, 2005. Petitioner's Exhibit 9; Respondents' Exhibit 13. On appeal, on February 16, 2006, the Nevada Supreme Court affirmed the denial of the habeas petition. Petitioner's Exhibit 12; Respondents' Exhibit 18.

On April 16, 2006, this court received from Floyd a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, initiating this federal habeas corpus action (ECF No. 1). The court appointed the Federal Public Defender to represent Floyd, and counsel appeared on his behalf on May 22, 2006 (ECF Nos. 6, 8). Counsel filed a first amended habeas petition on Floyd's behalf on October 23, 2006 (ECF No. 18).

On January 25, 2007, respondents filed a motion to dismiss (ECF No. 27), contending that several claims in Floyd's first amended habeas petition were not exhausted in state court, and contending that certain of Floyd's claims were not cognizable in a federal habeas proceeding. While the motion to dismiss was pending, on March 29, 2007, Floyd filed a motion for leave to conduct discovery (ECF No. 35). On April 25, 2007, on account of the unexhausted claims in Floyd's first amended petition, the court stayed the action pending exhaustion of Floyd's claims in state court.See Order entered April 25, 2007 (ECF No. 47), 2007 WL 1231734. The court denied the motion to dismiss without prejudice, and denied the motion for leave to conduct discovery as moot. Id.

On June 8, 2007, Floyd filed a second state habeas petition in state district court. Petitioner's Exhibit 396; Respondents' Exhibit 20. On February 22, 2008, the state district court held an evidentiary hearing on one narrow issue: whether post-conviction counsel in Floyd's prior state proceeding was ineffective in failing to pursue relief based on Floyd's alleged organic brain damage. Respondents' Exhibit 25 (transcript). On April 2, 2009, the state district court entered an order denying relief. Respondents' Exhibit 26. Floyd appealed, and on November 17, 2010, the Nevada Supreme Court affirmed the lower court's ruling. Petitioner's Exhibit 386; Respondents' Exhibit 31.

On March 16, 2011, Floyd filed a motion (ECF No. 59) reporting that the further state-court proceedings had been completed, and requesting that the stay of this case be lifted. That motion was granted, and the stay of this action was lifted on March 22, 2011. See Order entered March 22, 2011 (ECF No. 61).

On June 13, 2011, Floyd filed a second amended petition for writ of habeas corpus (ECF No. 66), which is now the operative petition in this federal habeas corpus action.

Respondents filed a motion to dismiss Floyd's second amended petition, contending that several claims in that petition are barred by the doctrine of procedural default (ECF No. 77).

While the parties were briefing the motion to dismiss, Floyd filed a motion for leave of court to amend his second amended petition, to add a Claim 17 to the petition (ECF No. 91). The respondents did not oppose that motion (see ECF No. 93). The court granted the motion (ECF No. 94), and allowed Floyd to file a supplement to his second amended petition, adding Claim 17. Floyd filed that supplement, adding Claim 17, on January 30, 2012 (ECF No. 95).²

On August 20, 2012 (ECF No. 114), the court granted in part, and denied in part, respondents' motion to dismiss. The court order dismissed Claims 1A, 1B, 1C, 1D (in part), 1E, 1F, 1G, 2, 3, 4 (in part), 6, 8, 11, 12, 14, 15, and 17 (in part). See Order entered August 20, 2012 (ECF No. 114), 2012 WL 3598257. In all other respects, the court denied the motion to dismiss. Floyd filed a motion for reconsideration of the August 20, 2012 order (ECF No. 116), and the court denied that motion on February 22, 2013 (ECF No. 119), 2013 WL 686392.³

On June 19, 2013, respondents filed an answer (ECF No. 127), responding to the remaining claims in Floyd's second amended petition. On January 6, 2014, Floyd filed a reply (ECF No. 134). Respondents filed a response to Floyd's reply on March 6, 2014 (ECF No. 138).

Along with his reply, on January 6, 2014, Floyd filed a motion for evidentiary hearing (ECF No. 135). Respondents filed an opposition to that motion on March 17, 2014 (ECF No. 140). Floyd filed a reply on April 11, 2014 (ECF No. 144).

Standard of Review of the Merits of Floyd's Remaining Claims

Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) ; Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). 28 U.S.C. § 2254(d) sets forth the primary standard of review under AEDPA:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary

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