Sechrest v. Baker (816 F. Supp. 2d 1017, 2011)

ORDER

EDWARD C. REED, District Judge. Introduction

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Ricky David Sechrest, a Nevada prisoner convicted of two counts of first degree murder and two counts of first degree kidnapping, and sentenced to two death sentences and two terms of life in prison without the possibility of parole. Sechrest’s convictions and death sentence are the result of his kidnapping and murder of two young girls near Reno, Nevada, on May 14,1983.

The case is before this court on remand from the Ninth Circuit Court of Appeals, with a mandate that this court resolve certain claims concerning the constitutionality of Sechrest’s convictions. See Sechrest v. Ignacio, 549 F.3d 789, 802-05 (9th Cir.2008). In addition, the court of appeals has mandated that this court is to grant habeas corpus relief to Sechrest, with respect to the death sentences imposed upon him. Id. at 807-18.

This court determines that habeas corpus relief is not warranted on the remanded claims concerning the constitutionality of Sechrest’s convictions, and the court, therefore, denies those claims. The court grants Sechrest habeas corpus relief with regard to his death sentences, as directed by the court of appeals.

Background Facts and Procedural History

In its August 27, 1985 decision affirming Sechrest’s convictions and sentence, the Nevada Supreme Court described, as follows, the facts of the case as revealed by the evidence:

In April of 1988, Doris Schindler hired Zella Weaver to babysit her ten-year old daughter, Maggie Schindler. In addition to caring for Maggie during weekday afternoons and evenings at the Schindler residence, Mrs. Weaver would pick Maggie up from the Meadowood Ice Arena when Maggie was through ice skating on Saturdays.

On May 14, 1983, a neighbor of the Schindlers’ drove Maggie and her friend, Carly Villa, to Meadowood and dropped them off to skate. Later that afternoon Mrs. Weaver went to Meadowood to pick up Maggie and Carly but could not find them. The police were notified, and an investigation was begun.

On June 7, 1983, the bodies of Maggie and Carly were found in Logomarsino Canyon, a remote area east of Reno, by two young men who were out shooting. The bodies, which had been covered with loose dirt, were found about 50 yards apart. A pair of ice skates and skate guards with the name “Maggie S.” on them were found near one of the gravesites.

Ricky David Sechrest is Zella Weaver’s grandson and lived at her home. Sechrest had been seen outside the Schindler home several times while waiting to pick up his grandmother when she finished babysitting there. The record establishes that Maggie had been at the Weaver residence before and that Sechrest knew that his grandmother routinely picked Maggie up at Meadowood Mall on Saturdays.

On June 14, 1983, Sechrest gave an inculpatory statement to Officer Bogison and Detective Eubanks of the Reno Police Department while he was being questioned at the Sparks Police Department by Sparks police on an unrelated grand larceny charge. He admitted that he had picked up Maggie and Carly from the Meadowood Mall Ice Arena. He said that he asked Maggie if she wanted to go for a ride and that she had agreed. They drove out to Logomarsino Canyon. Sechrest claimed that they were walking around the hills rock hunting when Carly fell over backward and hit her head. Sechrest said he thought the girl was dead because when he checked her pulse, she did not have one. He said Maggie began to “freak out on him” and was “between hysterical and crying.” Sechrest stated that he knew it was wrong to be up there with the girls to begin with, so when Maggie began to run he panicked, caught her and hit her over the back of the head with a rock. After hitting the girl three or four more times with the rock after she had fallen, Sechrest went to his car and got a shovel. He returned to where Carly was lying and thought she was still alive; so he hit her “once or twice” in the head with the edge of the shovel. He then buried the girls with loose dirt. In his statement Sechrest admitted that he performed an act of masturbation on Maggie’s body, but, according to him, at this time the girl was already dead. [Footnote: At trial a forensic pathologist testified that it was unlikely that Carly fell and killed herself. He also testified that the skull fractures in both children were probably caused by the shovel. He further testified that due to the decomposition of the bodies it would have been impossible to tell if a sexual assault had occurred.]

A jury convicted Sechrest of two counts of first degree murder and two counts of first degree kidnapping. At the penalty phase, the jury set the penalty at death on each murder conviction. In addition the trial judge sentenced Sechrest to life without possibility of parole on each of the two kidnapping counts.

Sechrest v. State, 101 Nev. 360, 362, 705 P.2d 626, 628 (1985).

Sechrest appealed to the Nevada Supreme Court. Exhibit 63. The Nevada Supreme Court affirmed on August 27, 1985. Exhibit 71; Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985), overruled in part, Harte v. State, 116 Nev. 1054, 13 P.3d 420 (2000).

On November 13, 1985, Sechrest filed a petition for post conviction relief in the state district court. Exhibits 80, 92. The state district court conducted an evidentiary hearing on November 8, 1990. Exhibit 95. On January 14, 1991, the state district court denied the petition. Exhibit 103. Sechrest appealed, and the Nevada Supreme Court affirmed on February 20, 1992. Exhibit 113; Sechrest v. State, 108 Nev. 158, 826 P.2d 564 (1992).

Sechrest filed a pro se habeas corpus petition, initiating this federal action on August 3, 1992 (docket # 1). The court appointed counsel for Sechrest (docket # 5, # 16). On October 31, 1994, counsel filed a first amended habeas petition (docket # 47) on Sechrest’s behalf.

On March 1, 1995, respondents filed a motion to dismiss, arguing that none of Sechrest’s claims for habeas corpus relief were exhausted in state court (docket # 62). On September 26, 1995, the court granted the motion to dismiss, with leave for Sechrest to amend to more specifically state where and when he exhausted his state-court remedies (docket # 69).

Sechrest filed a second amended habeas petition on October 27, 1995 (docket # 70). Respondents again moved to dismiss (docket # 74), arguing that Sechrest still had not shown exhaustion of his state-court remedies with respect to any of his claims. The court entered an order (docket # 81), on July 29, 1996, finding that Sechrest’s second amended habeas petition was mixed, in that it included both claims that were exhausted and claims that were not. The court dismissed Sechrest’s mixed second amended petition, and judgment was entered (docket # 81, # 82).

Sechrest appealed from the dismissal of his second amended petition (docket # 84). The court of appeals ruled initially on August 27, 1998 (docket # 93), and then amended its decision on September 16, 1998 (docket # 94). The court of appeals noted that Sechrest had, after this court’s dismissal of his second amended petition, returned to state court to exhaust his unexhausted claims. Sechrest filed a petition for writ of habeas corpus in state court on August 29, 1996. Exhibit 1(104). On September 4, 1996, the state trial court dismissed the petition on procedural grounds. Exhibit 2(104)M. On November 20, 1997, the Nevada Supreme Court dismissed Sechrest’s appeal from that ruling. Exhibit 3(104).

In the order of the Ninth Circuit Court of Appeals, as amended, the court ruled that five of the claims in Sechrest’s second amended petition were exhausted; the court ruled that the other claims in that petition were procedurally barred. August 27, 1998 Order (docket # 93, # 94). The court dismissed the appeal and remanded, directing this court to vacate the order dismissing the petition, permit Sechrest to delete the claims held to be procedurally barred, and proceed to address the merits of the five exhausted claims. Id.

On May 20, 1999, Sechrest filed a third amended petition for writ of habeas corpus (docket # 115), including in it only the five claims held by the court of appeals to be exhausted and not procedurally barred. Respondents answered (docket # 120), Sechrest filed a traverse (docket # 126), and respondents then filed a notice of supplemental authority (docket # 131). On June 27, 2003, the court entered an order (docket # 131) expanding the record, and on July 21, 2003, respondents filed certain exhibits as ordered (docket # 135). On April 19, 2004, this court denied all five claims in Sechrest’s third amended petition, and entered judgment accordingly (docket # 136, # 137). On June 3, 2004, the court denied Sechrest’s motion for reconsideration (docket # 140).

Sechrest appealed (docket # 141), and on December 5, 2008, the court of appeals reversed and remanded. Sechrest v. Ignacio, 549 F.3d 789 (9th Cir.2008), cert. denied, — U.S. -, 130 S.Ct. 243, 175 L.Ed.2d 241 (2009). The court of appeals reversed this court’s rulings with respect to two of Sechrest’s claims, both concerning his death sentences, and ordered that, when this court enters a final judgement, it is to grant habeas corpus relief with regard to the death sentences. Id. at 807-18. The court of appeals affirmed this court’s rulings with respect to the claims asserted in petitioner’s third amended habeas petition regarding his convictions. Id. at 805-07. The court of appeals revived the claims that, on the prior appeal, it had ruled procedurally barred. Id. at 802-05. Based on intervening authority— Valerio v. Crawford, 306 F.3d 742 (9th Cir.2002) (en banc) — the court of appeals held that the state procedural rule that it had previously held to have barred the claims (NRS 34.810) was not adequate to support the procedural bar. Sechrest, 549 F.3d at 802-05. The court of appeals remanded, ordering that those revived claims are to be adjudicated on their merits. Id. at 802-05, 817-18. In a footnote, the court of appeals stated that, because its decision mandates relief with respect to Sechrest’s death sentences, this court need not adjudicate the remanded claims challenging the death sentences, as those claims are now moot. Id., p. 805 n. 5; see also id., p. 817 n. 16 (court of appeals declined to reach Sechrest’s claim that his Fifth Amendment rights were violated by certain testimony in the penalty phase of his trial, because it concluded that Sechrest was entitled to resentencing).

Meanwhile, while the appeal in this case was pending, on December 29, 2005, Sechrest filed a new post-conviction petition for a writ of habeas corpus in state court, asserting a claim pursuant to McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), in which the Nevada Supreme Court had held it impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on a felony upon which a felony murder theory is predicated. Exhibit 3(197). The state district court dismissed that petition, and Sechrest appealed to the Nevada Supreme Court. On July 20, 2010, the Nevada Supreme Court dismissed the appeal, determining that it was moot, in view of the ruling of the Ninth Circuit Court of Appeals, ordering that Sechrest is to be granted habeas corpus relief with respect to his death penalties. Exhibit 2(197).

Following the court of appeals’ remand, this court held a status conference, and set a schedule for Sechrest to file a fourth amended habeas petition, to reincorporate into his petition the claims that were previously held procedurally barred, for the respondents to answer, and for other proceedings regarding the fourth amended petition. See Minutes of Proceedings dated December 8, 2009 (docket # 174); Scheduling Order entered December 9, 2009 (docket # 175).

Sechrest filed his fourth amended petition (docket # 179) on March 29, 2010. Respondents answered on September 23, 2010 (docket # 187). Sechrest filed a reply on January 12, 2011 (docket # 197). Respondents filed a response to the reply on March 23, 2011 (docket # 203).

Respondents’ response to Sechrest reply is 28 pages long. Because that exceeds the page limit set forth in the court’s local rules (LR 7-4), respondents filed a motion (docket # 202) requesting leave to file the 28-page response to the reply. Sechrest did not respond to that motion. The court finds that there is good cause for respondents to file their 28-page response to the reply, and the court will, therefore, grant the motion for leave to file that document.

When he filed his reply, on January 12, 2011, Sechrest also filed a motion for evidentiary hearing (docket # 194). Respondents filed an opposition to that motion on March 23, 2011 (docket # 201). Sechrest filed a reply in support of the motion for evidentiary hearing on April 12, 2011 (docket # 204).

Standard of Review of the Merits of Sechrest’s Claims

Sechrest’s federal habeas corpus petition was filed prior to enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”); therefore, pre-AEDPA standards apply to his claims. Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059,138 L.Ed.2d 481 (1997).

Applying pre-AEDPA standards, the court presumes “that the state court’s findings of historical fact are correct and defer[s] to those findings ‘in the absence of convincing evidence to the contrary or a demonstrated lack of ‘fair support in the record.’ ” Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir.2001) (en banc). The court reviews questions of law, and mixed questions of law and fact, de novo, owing no deference to the state court’s legal conclusions. Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.2000) (en banc); McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994) (en banc). A petitioner “must convince the district court ‘by a preponderance of evidence’ of the facts underlying the alleged constitutional error.” McKenzie, 27 F.3d at 1418-19 (citing Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir.1976)).

The standard, pre-AEDPA, for determining whether an evidentiary hearing is warranted is: an evidentiary is to be granted if (1) petitioner’s allegations, if proven, would establish the right to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir.1995); Jeffries v. Blodgett, 5 F.3d 1180, 1187 (9th Cir. 1993).

Analysis of Claims in Sechrest’s Fourth Amended Petition

Ground 1

In Ground 1 of the Fourth Amended Petition, Sechrest claims that his constitutional rights were violated by the testimony, in the penalty phase of his trial, of a psychiatric expert, Dr. Lynn Gerow. Fourth Amended Petition (docket # 179), p. 7.

To the extent that Ground 1 includes a claim of ineffective assistance of counsel, for trial counsel allowing the prosecution to call Dr. Gerow as a penalty phase witness, this claim has been resolved, in Sechrest’s favor, by the court of appeals. See Sechrest, 549 F.3d at 815-17. The court will grant Sechrest habeas corpus relief with respect to his death sentences as directed by the court of appeals.

To the extent that Ground 1 includes the separate but related claim that the testimony of Dr. Gerow violated Sechrest’s constitutional rights, in view of the court of appeals’ ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, that claim is moot, and the court does not address it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach this claim, having already concluded that Sechrest is entitled to resentencing).

Ground 2

In Ground 2, which includes several sub-parts, Sechrest claims that his constitutional rights were violated “due to the ineffective assistance of defense counsel during his entire representation of Mr. Sechrest.” Fourth Amended Petition, p. 8. Each of the subparts of Ground 2 is addressed separately, below.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney’s representation “fell below an objective standard of reasonableness,” and (2) that the attorney’s deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052.

Regarding the first prong — the “effectiveness prong” — the Strickland Court expressly declined to articulate specific guidelines for attorney performance beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant’s cause, and the duty to communicate with the client over the course of the prosecution. Id. Defense counsel’s duties are not to be defined so exhaustively as to give rise to a “checklist for judicial evaluation ... [because] [a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Id. The Strickland Court also instructed that review of an attorney’s performance must be “highly deferential,” and must adopt counsel’s perspective at the time of the challenged conduct, in order to avoid the “distorting effects of hindsight.” Id. at 689, 104 S.Ct. 2052. A reviewing court must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ... [and] the [petitioner] must overcome the presumption that ... the challenged action might be considered sound trial strategy.” Id. (citation omitted).

Construing the Sixth Amendment to guarantee not effective counsel per se, but rather a fair proceeding with a reliable outcome, the Strickland Court concluded that demonstrating that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. In order to satisfy Strickland’s second prong, the petitioner must show that the attorney’s sub-par performance prejudiced the defense. Id. at 691-92, 104 S.Ct. 2052. The test is whether there is a reasonable probability that, but for the attorney’s challenged conduct, the result of the proceeding in question would have been different. Id. at 691-94, 104 S.Ct. 2052. The Court defined reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

If the petitioner makes an insufficient showing as to either one of the two Strickland components, the reviewing court need not address the other component. Id. at 697,104 S.Ct. 2052.

Ground 2A

In Ground 2A, Sechrest focuses on the admission at trial of Daniel Sportsman’s testimony that he and Sechrest had engaged in sexual acts involving bondage. Id. at 8-12.

Sechrest does not articulate any manner in which his counsel was ineffective with respect to the testimony of Sportsman regarding the their sexual activity. See id. Sechrest acknowledges that his counsel objected to that testimony. Id. Sechrest’s counsel’s objections were asserted in the following exchange, during the direct examination of Sportsman:

Q. How would you describe Ricky Sechrest?

MR. AIMAR [Sechrest’s counsel]: Objection, your Honor. I don’t see that that’s relevant, particularly, to this case. It has nothing to do with the crimes charged.

MR. HOWARD [prosecutor]: Well, your Honor, once again, I believe that there is an inference that this individual is a homosexual. The charges in reference to the kidnapping allege that, in fact, he picked up those girls from the Meadowood Ice Skating Arena with the intent to take them to the Lagomarsino Canyon and there to commit murder, lewd acts with a child under the age of 14, and/or sexual assault.

Now, obviously, if he is a homosexual, that is going to lead away from the inference that he, in fact, committed sexual assault with these young girls, so I think his sexual preference is, in fact, relevant to that issue.

THE COURT: It seems to me that during the selection of the jury reference was made along these lines, and I also feel that this is something that can and should be considered into evidence in this matter.

The objection is overruled.

BY MR. HOWARD:

Q. Would you describe the defendant, Rick Sechrest?

A. Bisexual.

Q. Bisexual?

A. Yes.

Q. And by that, you mean he had feelings for both men and women?

A. Yes. I don’t really know about men — I know — I know I was the only man that he — that I knew that he ever really had any feelings for.

Q. But you knew, also, that he had feelings for women?

A. Yes.

Q. Now, Danny, did you and the defendant ever engage in any acts of bondage?

MR. AIMAR: Objection, your Honor. That is not relevant, what their private life was. There isn’t any evidence in this case, at this point, going towards— showing other kinds of sexual acts.

The fact that he is bisexual is, perhaps, relevant at this point, based upon your recent ruling, but I don’t see any basis for that whatsoever, and I think the state should not be allowed to ask into that area.

MR. HOWARD: Your Honor, we have tentatively introduced a leash, which the state intends to show is, in fact, linked to the commission of the offense occurring on May 14,1983.

The state is going to link up that leash with this defendant, Rick Sechrest.

Further, we know that that leash was found by the unclothed body of Maggie Schindler. Maggie Schindler, we know, only had her panties, her underwear on.

And the state is also intending to show, through the statements that will come out in reference to Ricky Sechrest’s confession, that he did not use that leash for any purpose, had no knowledge of what that leash was there for.

I think that under Geary v. State that leash is relevant, because it is at the crime scene, it can be linked to the defendant, and so it is relevant and material on both of those issues.

Further, I think that the jury should be able to infer from the testimony why that leash was there, what was Ricky Sechrest doing with that leash.

THE COURT: Do you have anything further?

MR. AIMAR: Yes, your Honor. The entire argument is talking about something that this proposed exhibit, a leash — The question I objected to had to do with what was, perhaps, the personal life between the witness and Ricky Sechrest. I don’t see the connection.

I think getting into these things like that are extraneous matters, certainly ones that are going to make the jury think about things, not that he committed the crimes charged.

THE COURT: I think the possible relevance that the district attorney is talking about is in circumstances, which may give rise to an inference, which is the way some evidence does come in—

MR. AIMAR: Perhaps some questions are going in line of that proposed exhibit is one that would be in order. I don’t see as it is asked generally that it has any relevance.

We don’t know whether we are talking about over a period of years or a particular incident, if at all. I think the whole thing is irrelevant.

THE COURT: I can see some relevance to it.

The objection is overruled.

Exhibit 44, pp. 56-59. After the objection was overruled, Sportsman testified as follows:

Q. Did you and Rick Sechrest engage in any acts of bondage?

A. He tied me up a couple of times.

Q. He tied you up a couple of times?

A. Yes.

Q. How many times?

A. Twice.

Q. Would you describe how he tied you up?

A. Just my hands and my feet.

Q. What did he tie you up with?

A. Belts, a housecoat robe.

Q. He would tie you up?

A. Yes.

Q. Your arms and your legs?

A. Yes.

Q. And then what would he do? Would he engage in sex with you?

A. Ejaculation, that was usually it.

Id. at 59-60. And, on cross-examination, Sportsman testified as follows:

Q. There was some discussion about being tied up. Did you agree to do that?

A. Yes.

Q. How many times did you say it had occurred?

A. Twice.

Q. Did it happen here in Nevada?

A. Once.

Q. And the other time was—

A. California.

Q. How long ago?

A. A long, long time ago.

Q. Did this time in Nevada happen this year?

A. Yes, I am pretty sure it was this year, yes.

Q. Do you know when?

A. I cannot put a date on it or a month or anything, no.

Q. Did you ask him to do that?

A. I could have. I could have.

Q. Had you ever done that before?

A. I was into experimenting then.

Id. at 79.

Sechrest’s counsel attempted, by means of his objection, to prevent the testimony of Sportsman regarding his sexual activity with Sechrest. And, after the judge overruled his objection, counsel evidently attempted to limit the damage by establishing that those acts were consensual, and suggested by Sportsman. Sechrest does not specify what else his counsel should have done with regard to this testimony. Sechrest does not give any indication what facts he could show at an evidentiary hearing to support this claim of ineffective assistance of counsel. Sechrest’s claim of ineffective assistance of counsel, regarding Sportsman’s testimony, is therefore without merit, and an evidentiary hearing is not warranted.

The court also finds without merit Sechrest’s separate but related claim, in Ground 2A, that the admission of Sportsman’s testimony violated his constitutional rights. A state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir.2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir.1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). “[F]ailure to comply with the state’s rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief.” Jammal, 926 F.2d at 919. “A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.2005).

There was evidence presented at trial showing that, when found, Maggie’s body was disrobed, except for her underwear, and a leash was found nearby. See Exhibit 44, pp. 5, 9 (testimony of Don Means); id., pp. 23-24 (testimony of David Leland Keller). A hair was found on the leash, and there was testimony that the hair was similar to hairs found in Sechrest’s car. See Exhibit 42, pp. 20-25 (testimony of Robert Thompson). Sechrest admitted, in his statement to the police, that, after he killed Maggie, he removed all her clothing and attempted to have sexual intercourse with her, and, when he was unable to do that, he masturbated, and ejaculated onto her body. See Exhibit 147, pp. 38-43 (Sechrest’s statement to the police). In view of the evidence, indicating that there was a sexual component to the kidnappings and killings, the testimony indicating that Sechrest had previously engaged in acts of bondage for sexual pleasure was relevant; that testimony certainly was not fundamentally unfair.

The court, therefore, finds there to have been no constitutional error with respect to the testimony of Sportsman regarding the acts of sexual bondage that he and Sechrest engaged in, and the court will deny habeas corpus relief with respect to Ground 2A.

Ground 2B

In Ground 2B, Sechrest states his claim, in its entirety, as follows:

Defense counsel was ineffective for failing to investigate the hair found on the leash, object to and challenge the scientific validity of the testimony of state witness Robert Thompson ... that the hair found on the leash was similar to hair found in Mr. Sechrest’s car.

Fourth Amended Petition, p. 12. Sechrest asserts, in his reply, that his defense counsel “failed to call an expert witness to testify in Mr. Sechrest’s defense by disputing the indeterminate results the state’s expert’s proffered.” Reply, p. 17. He goes on in the reply: “By failing to consult with expert witnesses — much less proffer expert testimony that challenged the state’s experts — trial counsel rendered objectively unreasonable assistance.” Id. at 18. Sechrest asserts further in the reply: “Given the inconclusive physical evidence presented by the state, trial counsel’s failure to question the state’s proffer through its own experts clearly unconstitutionally prejudiced Mr. Sechrest.” Id.

Sechrest’s claim in Ground 2B is without substance. Sechrest does not allege, with any specificity, how the testimony of Robert Thompson, regarding the hair found on the leash, could have been challenged. Sechrest, does not explain any manner in which Thompson’s testimony was faulty. Sechrest has not proffered to this court any expert opinion contrary to Thompson’s. In short, Sechrest’s allegations in Ground 2B are unspecific, speculative, and wholly unsupported.

Sechrest makes a motion for an evidentiary hearing on Ground 2B. See Motion for Evidentiary Hearing (docket # 194); Reply in Support of Motion for Evidentiary Hearing (docket #204). In that motion, with regard to what he would show at an evidentiary hearing, Sechrest states only: “These claims merit an evidentiary hearing so that Mr. Sechrest may present expert testimony regarding the irrelevant and unreliable hair evidence found on the leash.” Reply in Support of Motion for Evidentiary Hearing, p. 2. Sechrest does not provide any detail regarding the evidence he would proffer at an evidentiary hearing. Sechrest does not show that, at an evidentiary hearing, he could possibly prove facts that would establish that habeas corpus relief is warranted. The court will deny Sechrest’s motion for an evidentiary hearing on this claim.

The court finds there to be no showing that Sechrest’s attorney performed in an objectively unreasonable manner with regard to his handling of the evidence regarding the hair found on the leash, and, therefore, the court finds there to be no constitutional error shown in Ground 2B. The court will deny habeas corpus relief with respect to Ground 2B.

Ground 2C

In Ground 2C, Sechrest claims that his counsel was ineffective with respect to the admission of five photographs of the bodies of Maggie and Carly, which were admitted at trial over defense objection. Fourth Amended Petition, pp. 12-13.

At trial, Sechrest’s counsel objected to admission of the photographs, in the following exchange:

MR. AIMAR [SECHREST’S COUNSEL]: Your Honor, once again, I object to the admission of these. I think the testimony of the doctor at this point has been sufficient to explain what his findings were, and that the pictures merely add to something that is unnecessary.

I feel, for the same reasons that I objected to the two photographs earlier, they are meant to inflame the passions of the jury in this case and don’t serve any purpose beyond which he has already testified or any other questions that may be asked.

Accordingly, I feel the addition of all these extra pictures just merely — sort of an overkill of the situation.

Accordingly, I don’t feel you should let them in at this time.

THE COURT: Let me see them.

MR. LANE [PROSECUTOR]: I will wait until the Court observes them before I make my response.

THE COURT: Go ahead.

MR. LANE: As a matter of fact, if it please the Court, they are not meant to be inflammatory at all. As a matter of fact, under the circumstances, they are quite ungruesome.

What they are are simply a way to depict to the naked eye that which the doctor has testified about.

And as I have been in front of your Honor many times before with facts created by myself, we are trying to demonstrate to the jury what happened. We don’t intend to ask the Court to admit anymore photographs of this particular character.

However, the doctor has testified as an expert, and he has testified in a technical manner and, certainly, the jury, I would submit, your Honor, is entitled to see by their naked eye that which it is the doctor has testified about. That is the purpose for the offer.

MR. AIMAR: Your Honor, if I may respond briefly. If the Court feels they are admissible, I think, perhaps, the Court should limit it to one of the pictures per each of the girls, rather than the necessity of having two of Carly Villa and three of Maggie Schindler. Perhaps they should pick one, if you are going to admit it.

MR. LANE: May I be heard on that?

THE COURT: Yes.

MR. LANE: If there was one fracture, that might be an argument. But, in fact, the doctor has testified there is more than one fracture.

These photographs, I think the Court has realized that when it saw the photographs, does not depict the same thing over and over. Indeed, it depicts different fractures and different marks. That is the whole purpose of the offer.

THE COURT: I think that the photographs meet the purpose of the offer, and I think that they are and will be helpful in establishing some of the things that have to be established.

They are not particularly gruesome. I don’t think they are inflammatory.

The objection is overruled. They are admitted.

Exhibit 43, pp. 85-86.

Sechrest does not articulate any manner in which his counsel could have done more in his attempt to exclude the photographs. This claim of ineffective assistance of counsel is wholly without merit.

In Ground 2C, Sechrest also asserts the separate but related claim that his constitutional rights were violated by the trial court’s admission of the photographs. See Reply, p. 12. However, that substantive claim — that the admission of the photographs, rather than counsel’s performance with respect to them, violated Sechrest’s federal constitutional rights — was not a claim remanded by the court of appeals for resolution by this court.

The court of appeals’ order, with regard to the claims to be considered by this court on remand, was as follows:

We conclude that the habeas claims the Nevada Supreme Court dismissed under NRS 34.810 should not have been barred from federal review. We reverse and remand to the district court for consideration of those claims on the merits. [Footnote: As we later conclude, for separate reasons, that there were due process violations during the penalty phase of the trial, the claims that go to due process violations in sentencing need not be revisited. We remand for consideration of the other claims dismissed under NRS 34.810.]

With respect to the guilt phase, we hold that Sechrest’s Miranda rights were not violated, and affirm the district court on this ground. We also hold, however, that Sechrest’s previously defaulted claims — which include both guilt and penalty phase claims — should not have been barred from federal habeas review. We remand these claims to the district court for appropriate consideration.

Sechrest, 549 F.3d at 805, 817. The claims that the court of appeals remanded to this court were in Sechrest’s second amended petition for writ of habeas corpus (docket # 70); upon the direction of the court of appeals, those claims were omitted when Sechrest filed his third amended petition. There was not, in Sechrest’s second amended petition, any claim that Sechrest’s constitutional rights were violated by the admission of the photographs of the victims. See Second Amended Petition (docket #70). In the second amended petition, Sechrest’s claim regarding the photographs was plainly and exclusively a claim of ineffective assistance of counsel. See id., pp. 31-33. Sechrest’s new claim, that the admission of the photographs, itself, violated his federal constitutional rights, is beyond the scope of the remand, and this court rejects it on that basis.

Moreover, even if the court were to address the merits of Sechrest’s claim that the admission of the photographs violated Sechrest’s federal constitutional rights, the court would find that claim to be without merit. A state court’s evidentiary ruling, even if erroneous, is grounds for federal habeas corpus relief only if it renders the state proceedings so fundamentally unfair as to violate the defendant’s constitutional right to due process of law. Drayden, 232 F.3d at 710; Spivey, 194 F.3d at 977-78; Jammal, 926 F.2d at 919. “[F]ailure to comply with the state’s rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief.” Jammal, 926 F.2d at 919. “A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde, 404 F.3d at 1172. It is beyond cavil that the photographs were relevant; they showed graphically that mortal wounds to the girls’ skulls could have been caused by blows with a shovel. See Exhibits 123, 124, 125, 126, 127; see also Exhibit 43, pp. 82-84 (testimony of Dr. Anton Paul Sohn). The admission of those photographs into evidence was not fundamentally unfair, and did not violate Sechrest’s right to due process of law.

The court will, therefore, deny habeas corpus relief with respect to Ground 2C.

Ground 2D

In Ground 2D, Sechrest claims ineffective assistance of counsel, by his trial counsel, as follows: “Given Mr. Aimar’s purported experience, and the reputation in the legal community of the prosecutor, Mr. Lane, for committing misconduct, Mr. Aimar should have moved in limine prior to trial to preclude Mr. Lane from making improper arguments to the jury.” Fourth Amended Petition, p. 13.

This claim is specious. Sechrest does not point to any particular sort of evidence or argument on the part of the prosecutor that his counsel should have sought, prospectively, to exclude; rather, his argument is that his counsel should have sought to exclude improper arguments by the prosecutor in general. Regardless of what the reputation of the prosecutor may allegedly have been at the time of the trial, this court cannot find that Sechrest’s counsel was reasonably expected to make such a motion in limine.

As Sechrest does not set forth a viable theory of ineffective assistance of counsel in Ground 2D, the court will deny Sechrest an evidentiary hearing, and will deny habeas relief, with respect to that claim.

Ground 2E

In Ground 2E, Sechrest claims that his trial counsel was ineffective for failing to object to the alleged aggravating circumstances, as overbroad, vague, and unsupported by the evidence. Fourth Amended Petition, pp. 14-17.

In view of the court of appeals’ ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to re-sentencing); see also Reply, p. 19 (Sechrest concedes claim is moot).

Ground 2F

In Ground 2F, Sechrest claims that his counsel was ineffective for his “[flailure to present a defense.” Fourth Amended Petition, p. 18. Sechrest argues that “[b]y admitting guilt, and informing the jury that Mr. Sechrest’s mental state at the time of the incident was at issue, but failing to investigate, develop or present testimony.to develop this defense, defense counsel was ineffective.” Id. Sechrest emphasizes in his reply that his counsel did not contact or call expert witnesses. Reply, p. 20. Sechrest argues: “The effect was the same as if Mr. Sechrest had no counsel, which is prejudicial per se.” Fourth Amended Petition, p. 18.

Sechrest’s claim is belied by the record. Sechrest’s counsel did not “admit guilt.” Rather, in both his opening statement and closing argument, counsel acknowledged that Sechrest took Maggie and Carly into the hills and killed them there, but counsel asserted that he did so without the requisite intent for first degree kidnapping or first degree murder. In his opening statement, Sechrest’s counsel stated:

The prosecutor has given you his version of the facts of the case. The defense disputes that version, and we feel that the deaths of Carly Villa and Maggie Schindler took place in a manner different than that.

Mr. Sechrest has made a statement to the police and explained at the time what happened. That statement will be admitted into evidence, and you will have a chance to hear it. The prosecutor, Mr. Lane, has indicated that, too.

In the statement, on the 14th of June, Ricky Sechrest stated to the police that he did, in fact, drive to Meadowood Mall after dropping Danny Sportsman, his roommate, off at work. He was there looking around when he ran into Maggie Schindler and Carly Villa. It will become clear he knew Maggie Schindler because Zella Weaver, his grandmother, in fact, babysat for Maggie, he had taken Maggie and his grandmother places on occasion.

The evidence will show he did not know Carly Villa prior to that day that she was with Maggie. They talked, and at that time Ricky and the girls discussed going up to the canyon, up rock hunting.

At that point, everybody, the three people, the two girls and Ricky, decided it was a good idea and decided to go. At that point, by his own statements, he did not intend to do more than go for a ride out in the desert to go look for rocks.

The evidence will not prove beyond a reasonable doubt that he enticed them to go for the purpose of sexual assault or the purpose of killing them.

The evidence will not prove that he kidnapped them in that regard.

The evidence will show that Maggie did make a phone call around 1:30 to call her mother. We can only speculate what that call was about.

But after that, she was unable to reach her mother. They went up for a ride in the canyon.

The evidence will show that Ricky has been up in the canyon and done rock hunting. There is evidence to show he lived up in the Lockwood area at some point.

Carly went with Maggie because they were Mends. They wanted to go along for the ride. They had never been up in the canyon.

After they got up in the canyon rock hunting, the evidence will show — and the statement from what Ricky said is that Carly fell and hit her head. The evidence will show that Ricky thought that she was dead, that Maggie thought she was dead. Apparently, she was unconscious, we don’t know.

Ricky will say in his statement that he tried to take her pulse. He is not a nurse, he is not an EMT or anything like that, but he did that and thought that she was dead.

At that point the evidence will show, from what Ricky is going to testify in his statement, that Maggie started to panic, started to get hysterical. Maggie started running away, and at that point Ricky did strike her on the head, did hit her with a rock and knocked her down.

Ricky was panicked, and he was hysterical, he lost control, and he did, without deliberation or premeditation, kill her.

Thereafter, in that same panic, the evidence is going to show that Ricky went back, got a shovel, thinking to bury them, still in this same panic, same period of time, saw that Carly had moved and, apparently, was not dead, and he went ahead and killed her. He had never recovered from the hysteria and panic.

He then buried them and he did leave. There will be testimony about the sexual conduct that has been indicated by Mr. Lane.

At the end of this evidence, you will be asked to make a decision on this, and I submit that the state will have proven some of the things that this prosecutor has indicated, but they will not have proven the crime of kidnapping. He did not intend to take them into the canyon to do anything.

The state will fail to prove that he committed premeditated and deliberate murder.

As a result, I feel that you should listen to each evidence as it comes in and not be swayed by the order in which it is presented, and that you should add each piece of evidence and help it fill in this total picture.

We are confident you will decide this case intelligently and give Ricky the presumption of innocence and will convict him of only the crimes that the state can prove.

And at the end of that, I submit the state will not be able to prove beyond a reasonable doubt kidnapping in either case or first degree murder.

Exhibit 43, pp. 13-16. Sechrest’s counsel returned to these same themes in his closing argument:

On behalf of my client, I want to tell you, as I did in the beginning, that Ricky Sechrest did commit the murder, that he did not kidnap Maggie Schindler and Carly Villa. Mr. Sechrest did strike Maggie, did strike Carly, but he didn’t premeditate and deliberate it. If he did not do so, then the murder is murder in the second degree. And as you read the instructions and consider the testimony at the end of this, I am going to ask that you return verdicts on Counts I and II, which are the murder counts as to second degree murder, and I am going to ask that you return verdicts of not guilty on either of the kidnapping charges.

Exhibit 42, p. 102. In his closing argument, Sechrest’s counsel argued further that the prosecution had not proven the kidnapping charge, and that Sechrest was only guilty of second degree murder, because there was no premeditation and deliberation. Id. at 112-16. Sechrest’s claim that his counsel “admitted guilt” is contradicted by the record.

Also, Sechrest does not accurately state the facts, as shown by the record, when he argues: “trial counsel did not contact or call expert witnesses.” Reply, p. 20. As the court of appeals has stated, Sechrest’s counsel did in fact contact an expert witness, Dr. Lynn Gerow, and counsel arranged for Dr. Gerow to examine Sechrest:

Dr. Gerow’s involvement in the case began several months before trial when, at defense counsel’s request, the trial judge appointed Dr. Gerow to conduct a psychiatric evaluation of Sechrest. Using Dr. Gerow’s evaluation, defense counsel sought to determine whether Sechrest was fit to stand trial, and to investigate the possibility of an insanity defense.

Dr. Gerow interviewed and evaluated Sechrest. He then submitted a report addressed to defense counsel marked “Confidential.” The report contained information about Sechrest’s criminal history and past drug use. In the report, Dr. Gerow stated that Sechrest had a “polymorphous perversion.” After reviewing the report and speaking with Dr. Gerow, defense counsel decided not to call Dr. Gerow as a witness at the penalty phase and not to pursue an insanity defense.

Sechrest, 549 F.3d at 798. Here, too, Sechrest’s claim is belied by the record.

To say that this was a difficult case for Sechrest’s counsel to defend is understatement. Sechrest’s statement to the police was devastating to his defense, and that statement was in many respects corroborated by other evidence; in no respect was Sechrest’s statement to the police significantly undermined by any other evidence. In short, the evidence of Sechrest’s guilt was overwhelming. See discussion of Ground 41, below. Even in hindsight, it is hard to imagine what other approach Sechrest’s counsel could have taken to defend against the first degree kidnapping and first degree murder charges in the guilt phase of the trial. Sechrest does not make any specific suggestion in this regard. Sechrest does not indicate what other strategic approach his counsel could reasonably have taken. Sechrest does not identify any particular expert witness who would have helped his cause. Sechrest does not proffer any evidence to illustrate any sort of expert opinion that he contends should have been presented at trial by his counsel. Sechrest does not request an evidentiary hearing on this claim. See Motion for Evidentiary Hearing; Reply in Support of Evidentiary Hearing.

Sechrest has not shown that his counsel failed to present a defense, or that his performance, with respect to the nature of the defense presented, was objectively unreasonable. The court will deny habeas corpus relief with respect to Ground 2F.

Ground 2G

In Ground 2G, Sechrest claims:

A seated juror, Mrs. Brooks, faded to acknowledge her bias against homosexuals when she was being voir dired by the judge and counsel, and did not disclose her bias until after defense counsel waived his last peremptory challenge. Based on Mrs. Brooks’s subsequent disclosure of bias, the trial court erred not only by failing to remove her for cause, but also by failing to reinstate defense counsel’s last peremptory challenge; and defense counsel was ineffective for failing to request that his last peremptory challenge be reinstated in light of Mrs. Brooks’s untimely disclosure.

Fourth Amended Petition, p. 18 (citation to record omitted).

This is a new claim, not previously pled in this action, and not remanded to this court for resolution. The claims that the court of appeals remanded were in Sechrest’s second amended petition for writ of habeas. The following is the entire claim, as stated in Sechrest’s second amended petition, regarding juror Brooks’ purported bias against homosexuals:

Defense counsel improperly informed the jury that Sechrest was a homosexual during jury selection and thereby violated he [sic] right to a fair trial and effective assistance of counsel in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.

Petitioner was deprived of his rights to due process and effective assistance of counsel due to defense counsel’s questioning of a potential juror regarding the possibility that evidence that Petitioner was homosexual might be introduced. Evidence of this type is extremely prejudicial and could cause the members of the jury to view Ricky David Sechrest as a deviant, one who might just be sick enough to do what the State alleged. It must have been apparent to defense counsel that if evidence of this nature was admitted it would be viewed by the jury as showing that Mr. Sechrest acted in conformity thereof. At this point in the trial no determination had been made by the Court as to whether evidence of Petitioner’s sexual preference would be admitted. The prejudice was substantial and at least one of the members of the jury panel was tainted. Just before the members of the jury were to be sworn, Mrs. Brooks stopped the proceedings to inform the Court that she did [not] feel that she could be a fair juror.

Although Mrs. Brooks did not feel that Petitioner was “guilty of something” because he might be homosexual ... she felt that because of her Christian beliefs she would have a problem with the issue.

The introduction of Ricky David Sechrest’s possible sexual orientation at a stage of the proceeding when it had not yet been determined as admissible could not possibly serve any useful purpose. On the contrary, it served to inflame and prejudice at least one juror.

Second Amended Petition, pp. 36-37. There was not, in Sechrest’s second amended petition, any claim that the trial court erred by failing to remove juror Brooks for cause, that the trial court erred by failing to reinstate defense counsel’s last peremptory challenge, or that trial counsel was ineffective for failing to request that his last peremptory challenge be reinstated. See Second Amended Petition (docket #70), pp. 36-37. Sechrest’s new claim, in Ground 2G of his fourth amended petition, is beyond the scope of the remand, and this court rejects it on that basis.

Moreover, even if the court were to address the merits of Ground 2G, the court would conclude that Sechrest has not shown habeas relief to be warranted. The trial court questioned juror Brooks extensively, and ultimately found that she could act as an unbiased juror. See Exhibit 41, pp. 246-58. The final exchange between the court and juror Brooks was as follows:

THE COURT: And you have been honest and you are not by any means the first person who has had trouble sitting on a jury. You may have some people sitting right there with you before this is over. You have got the decisions that have to be made in these cases and made by people who aren’t used to making these decisions. They can be very difficult, and I think you all know that. And I think you have accepted that. And I think that you have, as I say, some emotional feelings about the one subject of homosexuality that perhaps no one else has. But it seems to me that you have told us that you can proceed on this jury and do the job, am I right.

MRS. BROOKS: Yes.

Id. at 258. The trial court’s determination that juror Brooks could be impartial was a factual finding that this court presumes to be correct. See Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Hart v. Stagner, 935 F.2d 1007, 1013 (9th Cir.1991) (“The determination of whether an individual juror was biased against the defendant is a factual determination that we presume correct in habeas corpus proceedings, under 28 U.S.C. § 2254(d).”); Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990). Sechrest has not proffered any evidence to undermine the presumption that the trial court’s factual finding was correct.

In a footnote, in his motion for evidentiary hearing, Sechrest requests an evidentiary hearing on the ineffective assistance of counsel portion of this claim. See Motion for Evidentiary Hearing, p. 3 n. 1. However, Sechrest does not indicate what factual issue would be the subject of the hearing, how the resolution of that factual issue in his favor would show him entitled to habeas relief, or what evidence he would offer at an evidentiary hearing. The court will deny Sechrest an evidentiary hearing on Ground 2G.

The court will deny habeas corpus relief with respect to Ground 2G.

Grounds 2H and 20

In Ground 2H, Sechrest claims that his trial counsel was ineffective with regard to his handling of the voir dire of certain potential jurors who had allegedly been exposed to information about the case and had allegedly formed opinions about it. Fourth Amended Petition, pp. 23-25. In Ground 20, Sechrest claims, more generally, that his trial counsel was ineffective for failing “to question the panel of prospective jurors during jury selection regarding the effect of the pre-trial publicity that all had admitted to experiencing.” Id. at 26. As the claims in Grounds 2H and 20 are similar and overlapping, the court handles them together.

Sechrest claims that his counsel was ineffective with respect to the voir dire of potential juror Azparren, in that, instead of challenging him for cause, counsel asked him questions that served to rehabilitate him as a potential juror, after he stated that he had already formed an opinion about the case, and would vote for the death penalty if Sechrest was convicted of first degree murder. Id. at 23. The transcript reveals that when Mr. Azparren was initially questioned by the court, his opinion was not firm; he said he wanted “to hear both sides.” Exhibit 41, pp. 21-22. And, during that questioning, Mr. Azparren also said that he would be able to approach the evidence with an open mind and decide the case based solely on the evidence and not on any opinions that he may already have had. Id. at 22. Sechrest’s claim focuses on the questioning of Mr. Azparren by counsel later in the day. See id. at 101-04. At the beginning of that questioning, Mr. Azparren seemed to indicate that he would automatically vote for the death penalty if Sechrest was found guilty of first degree murder, at least if all the other jurors did so. Id. at 101-02. However, after Sechrest’s counsel explored that with Mr. Azparren, and after the judge gave Mr. Azparren further explanation of the procedure by which any penalty in the case would be determined, it appeared that, previously, Mr. Azparren had not understood what he was being asked, and Mr. Azparren then made clear that he would consider the evidence presented in mitigation and would not automatically vote for the death penalty. Id. at 103-04. The court finds that counsel’s questioning of Mr. Azparren was appropriate. Counsel did not perform unreasonably in this regard. And, at any rate, Sechrest’s counsel used a peremptory challenge to remove Mr. Azparren from the jury. Id. at 149.

Next, Sechrest focuses on the voir dire of potential juror Wycoff. Fourth Amended Petition, pp. 23-24. With regard to Mr. Wycoff, Sechrest asserts:

Mr. Wycoff, when questioned, stated in open court that his wife knew the grandmother of the victims and that the grandmother, Ruby Brajkovich, told his wife that, “she just wished she could reach out and touch him.” [Exhibit 41, p. 28.] Clearly the reference to “he” was intended to refer to Mr. Sechrest and the sentiment that she wished that she could take the matter into her own hands, connoting vengeance. This statement was inflammatory and had the effect of serving as a victim impact statement given to the jurors before the start of the case. [Id. at 28-31.]

Fourth Amended Petition, pp. 23-24. In his reply, Sechrest states: “It is difficult to imagine how a juror who knew one of the victim’s close relatives could not be biased; nevertheless, trial counsel failed to challenge his impartiality.” Reply, p. 22. Sechrest does not explain, any further, what action he believes his counsel should have taken with respect to Mr. Wycoff. And, here again, at any rate, Sechrest’s counsel used a peremptory challenge to remove Mr. Wycoff from the jury. Exhibit 41, p. 185.

Sechrest next focuses on the voir dire of potential juror Raymond. Fourth Amended Petition, p. 24. According to Sechrest:

Mrs. Raymond candidly stated that she did not think that she could set aside what she had learned about the case through the media. [Exhibit 41, pp. 31-33.] Both the trial court and the prosecutor attempted to rehabilitate her. [Id. at 31-40.] The discussions with Mrs. Raymond sent a message to the other members of the panel that it was frowned upon to be honest and that it was wrong to admit that they could just not set aside their opinions. This exchange occurred in front of the entire panel and undoubtedly had the effect of instructing the panel as to which answers were acceptable and which answers they would be punished for. Even, though the prosecutor stipulated to her removal, the manner in which she was questioned and her comments had a chilling effect on the panel. [Id.]

Fourth Amended Petition, p. 24. Mrs. Raymond was removed from the jury for cause, with the stipulation of the prosecution. Exhibit 41, p. 40. Nowhere does Sechrest explain how his counsel allegedly performed ineffectively with respect to the voir dire of Mrs. Raymond.

Lastly, Sechrest focuses on the voir dire of potential juror Jouhin. Fourth Amended Petition, p. 24. Sechrest asserts:

Mrs. Mary Jouhin also admitted that she had been exposed to media coverage and that she had formed an opinion as to the innocence or guilt of Mr. Sechrest. [Exhibit 41, pp. 49, 52.] Although she stated that she thought that she could set aside all that she had been exposed to prior to the trial, she thought that if she were in Mr. Sechrest’s situation that she would not be satisfied to be tried by a juror having her frame of mind. [Id. at 53.] When the Court was trying to rehabilitate her, she stated that she thought that she could set her opinion aside if she was shown to be obviously wrong or if she was mistaken. [Id. at 54-56.] Her answer, despite the Court’s best efforts, demonstrated that she was in effect shifting the burden of proof and putting the Petitioner in the position of having to prove to Mrs. Jouhin that he was innocent. [Id. at 47-56.]

Current counsel acknowledges that defense counsel removed Mrs. Jouhin ... using a peremptory challenge and waived his final peremptory challenge.

Fourth Amended Petition, p. 24. Sechrest does not allege any theory regarding how his counsel’s performance was ineffective with respect to the voir dire of potential juror Jouhin. And, at any rate, Mrs. Jouhin was not seated on the jury; Sechrest’s counsel used a peremptory challenge to remove her. Exhibit 41, p. 131.

In summary, with respe