Floyd v. Baker (47 F. Supp. 3d 1148, 2014)

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 circumstanees. 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). 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).

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, IB, 1C, ID (in part), IE, IF, 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.

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 Anti-terrorism 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 to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. at 75, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous; the state court’s application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495).

The Supreme Court has further instructed that “[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer, 538 U.S. at 75, 123 S.Ct. 1166); see also Cullen v. Pinholster, — U.S.-, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (describing the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal quotation marks and citations omitted)).

The state court’s “last reasoned decision” is the ruling subject to section 2254(d) review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir.2010). If the last reasoned state-court decision adopts or substantially incorporates the reasoning from a previous state-court decision, a federal habeas court may consider both decisions to ascertain the state court’s reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc).

If the state supreme court denies a claim but provides no explanation for its ruling, the federal court still affords the ruling the deference mandated by section 2254(d); in such a case, the petitioner is entitled to federal habeas corpus relief only if “there was no reasonable basis for the state court to deny relief.” Harrington, 131 S.Ct. at 784.

The analysis under section 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court’s decision. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Analysis

Claims 1D(1) and 10, and the Related Part of Claim 17A

In Claim 10, Floyd claims that his constitutional rights were violated by improper closing arguments of the prosecutors in both the guilt and penalty phages of his trial (Claim 10A), that his trial counsel was ineffective for failing to object to the provision of transcripts of the prosecutors’ closing arguments to the jurors to review during their deliberations (Claim 10B), and that the State wrongfully failed to preserve blood sample taken from him for drug and alcohol testing (Claim 10B). Second Amended Petition (ECF No. 66), pp. 195-204. In Claim 1D(1), Floyd claims that his trial counsel were ineffective for failing to object to the alleged improper closing arguments made by the prosecutors. Id. at 78. In Claim 17A, Floyd claims that his appellate counsel was ineffective for failing to raise on his direct appeal his claims regarding alleged prosecutorial misconduct. Amendment to Second Amended Petition (ECF No. 95), p. 264.

On Floyd’s direct appeal, the Nevada Supreme Court addressed the prosecutors’ alleged improper arguments, and ruled as follows:

Floyd asserts that several comments by the prosecution constituted misconduct. A prosecutor’s comments should be considered in context, and “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone.” [Footnote: United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).] Moreover, Floyd failed to object to some of the remarks. [Footnote: Riley v. State, 107 Nev. 205, 218, 808 P.2d 551, 559 (1991) (stating that generally this court will not consider whether a prosecutor’s remarks were improper unless the defendant objected to them at the time, allowing the district court to rule upon the objection, admonish the prosecutor, and instruct the jury); cf. NRS 178.602 (providing that despite lack of objection, this court may address an error if it was plain and affected a defendant’s substantial rights).] Most of the comments require no discussion because they all either were proper or did not amount to prejudicial error.

However, we will discuss one comment which was inappropriate. During closing argument in the guilt phase, the prosecutor told the jury that Floyd “perpetrated the worst massacre in the history of Las Vegas.” The jury began its deliberations soon after. Defense counsel then objected to the prosecutor’s remark as prejudicial and inflammatory. The district court responded: “I think [the remark] isn’t within the evidence. I also don’t think it is true. What remedy would you suggest, now that the jury is gone? If you wish, I’ll bring them back in and say that that wasn’t proper argument.” Defense counsel declined that proposal because he thought “an admonition would be moot and would raise more attention than the original comment.”

The district court was correct that the record contains nothing to support the prosecutor’s remark, and it is elementary that “a prosecutor may not make statements unsupported by evidence produced at trial.” [Footnote: Guy v. State, 108 Nev. 770, 780, 839 P.2d 578, 585 (1992); see also Leonard v. State, 114 Nev. 1196, 1212, 969 P.2d 288, 298 (1998); Collier v. State, 101 Nev. 473, 478, 705 P.2d 1126, 1129 (1985).] The remark was therefore improper. [Footnote: The State contends that the comment was “simply an accurate statement of fact known to anyone who has lived in Las Vegas any length of time, and akin to arguing in the Timothy McVeigh case that the Oklahoma bombing was the worst massacre in the history of the State of Oklahoma.” This extravagant comparison is neither apt nor persuasive. The multiple murders in this case were an exceptional occurrence, but even a quick look at this court’s case law shows that unfortunately they do not stand alone in Las Vegas history. In 1992, four people were shot to death in a Las Vegas apartment in the presence of two young children. See Evans v. State, 112 Nev. 1172, 926 P.2d 265 (1996).] We caution prosecutors to refrain from inflammatory rhetoric: “Any inclination to inject personal beliefs into arguments or to inflame the passions of the jury must be avoided. Such comments clearly exceed the boundaries of proper prosecutorial conduct.” [Footnote: Shannon v. State, 105 Nev. 782, 789, 783 P.2d 942, 946 (1989).] Here, given the overwhelming evidence of Floyd’s guilt, we conclude that the error was harmless. [Footnote: See NRS 178.598 (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).]

Floyd, 118 Nev. at 172-74, 42 P.3d at 260-61.

Floyd also made claims in his first state habeas action regarding alleged improper prosecution argument, and, on the appeal in that action, the Nevada Supreme Court ruled as follows:

Floyd asserts that his trial counsel was ineffective in failing to object to several instances of alleged prosecutorial misconduct. Although misconduct occurred, it was not prejudicial in this case.

Floyd’s counsel raised prosecutorial misconduct on direct appeal. This court addressed one instance specifically; in regard to the others, we stated: “Floyd asserts that several comments by the prosecution constituted misconduct.... Floyd failed to object to some of the remarks. Most of the comments require no discussion because they all either were proper or did not amount to prejudicial error.” [Footnote: Floyd, 118 Nev. at 172-73, 42 P.3d at 260 (footnote omitted).] Given this ruling, Floyd’s reliance in part on misconduct alleged on direct appeal fails to establish ány prejudice.

But Floyd newly raises three instances of misconduct .that his counsel failed to object to. All occurred during closing argument in the penalty phase as the prosecution rejected the mitigating circumstances proffered by Floyd.

So the defense has made a laundry list of red herrings to make it appear in this case that there is a whole lot of them and, therefore, they should have some weight. They’ve stacked wishes upon hopes upon dreams that you’ll count numbers, that you’ll count some things twice, and you’ll say “Well, wait a minute. There’s a lot of mitigation here.”

* * *

Now, it really doesn’t matter that Mr. Bell [defense counsel] took this entire box of paper clips and threw it on the table. You could have every one of these. How on earth could all of these reasons or excuses, whatever you want to call them, how could all of them put together possibly outweigh the fact that more than one person was killed in this case? How could that possibly outweigh a second murder? It can’t. None of these combined.

Cooperation with the police as a mitigating circumstance? Give me a break. How does that reduce his moral culpability?

You can throw the whole list away.

We have underlined the rhetoric that is misleading or excessively intemperate and derogatory toward the defense. First, as discussed above, mischaracterizing mitigating evidence as “excuses” could seriously mislead jurors. Second, rhetoric such as “Give me a break” and “red herrings” unfairly imply that the defense is trying something underhanded. This court has repeatedly warned prosecutors not to “disparage legitimate defense tactics” in this manner. [Footnote: See, e.g., Pickworth v. State, 95 Nev. 547, 550, 598 P.2d 626, 627 (1979); Barron v. State, 105 Nev. 767, 780, 783 P.2d 444, 452 (1989).] We considered it “highly improper” for a prosecutor to tell jurors that a defendant’s drug intoxication defense was a “red herring” aimed at gaming a compromise verdict of second-degree murder. [Footnote: Pickworth, 95 Nev. at 550, 598 P.2d at 627.] As we have explained, prosecutors have a “duty not to ridicule or belittle the defendant or his case. The appropriate way to comment, by the defense or the State, is simply to state that the prosecution’s case or the defendant is not credible and then to show how the evidence supports that conclusion.” [Footnote: Barron, 105 Nev. at 780, 783 P.2d at 452 (citation omitted).]

A defendant and his counsel have the right to introduce evidence and argue the existence of mitigating circumstances in a capital penalty phase. That is all Floyd and his counsel did here, and on direct appeal this court stated: “This mitigating evidence is not insignificant, but given the aggravating circumstances and the multiple, brutal, unprovoked murders in this case, we do not deem the death sentences excessive.” [Footnote: Floyd, 118 Nev. at 177, 42 P.3d at 263.] For their part, prosecutors are entitled to argue that the evidence presented by the defendant fails to establish any mitigating circumstances or that any mitigating circumstances lack weight in comparison to the aggravating circumstances. However, they violate their primary duty, which is to see that justice is done, when they suggest to the jury that the defendant’s case for a sentence less than death is somehow outrageous or illegitimate. [Footnote: See Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987).]

We assume that counsel had no sound strategy for not objecting to these remarks. Nevertheless, we conclude that there is no reasonable probability that Floyd would not have received a death sentence if his counsel had objected at trial or raised this issue on appeal.

Order of Affirmance, Petitioner’s Exhibit 12, pp. 9-12.

It is clearly established federal law within the meaning of § 2254(d)(1) that a prosecutor’s improper remarks violate the Constitution if they so infect the trial with unfairness as to make the resulting conviction a denial of due process. Parker v. Matthews, — U.S. -, 132 S.Ct. 2148, 2153, 183 L.Ed.2d 32 (2012) (per curiam); see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Comer v. Schriro, 480 F.3d 960, 988 (9th Cir.2007). The ultimate question is whether the alleged misconduct rendered the petitioner’s trial fundamentally unfair. Darden, 477 U.S. at 183, 106 S.Ct. 2464. In determining whether a prosecutor’s argument rendered a trial fundamentally unfair, a court must judge the remarks in the context of the entire proceeding to determine whether the argument influenced the jury’s decision. Boyde v. California, 494 U.S. 370, 385, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); Darden, 477 U.S. at 179-82, 106 S.Ct. 2464. In considering the effect of improper prosecutorial argument, the court may consider whether the argument manipulated or misstated the evidence; whether it implicated other specific rights of the accused, such as the right to counsel or the right to remain silent; whether the court instructed the jury that its decision is to be based solely upon the evidence; whether the court instructed that counsel’s remarks are not evidence; whether the defense objected; whether the comments were “invited” by the defense; and whether there was overwhelming evidence of guilt. See Darden, 477 U.S. at 181-82, 106 S.Ct. 2464. The standard is general, leaving courts leeway in case-by-case determinations. Parker, 132 S.Ct. at 2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). In a federal habeas corpus action, to grant habeas relief, the court must conclude that the state court’s rejection of the prosecutorial misconduct claim was objectively unreasonable, that is, that it “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Parker, 132 S.Ct. at 2155 (quoting Harrington, 131 S.Ct. at 786-87).

Applying these standards, the court finds that the rulings by the Nevada Supreme Court denying relief on the claims asserted by Floyd in Claims 1D(1) and 10, and the related portion of Claim 17A, were not objectively unreasonable. While some of the prosecutors’ comments in the State’s closing arguments in the guilt phase of the trial were improper, given the weight of the evidence against Floyd and the nature of those comments, the court concludes that those comments had no effect on the fairness of Floyd’s trial.

Regarding the prosecution’s guilt-phase closing arguments, Floyd highlights, as “[pjerhaps the most egregious comment,” the following:

The bottom line, ladies and gentlemen, is that Zane Floyd purposely, intentionally, premeditatedly, deliberately perpetrated the worst massacre in the history of Las Vegas.

Exhibit 43, p. 50; see Second Amended Petition, p. 198. The Nevada Supreme Court discussed this comment in its opinion on Floyd’s direct appeal, and found the comment to be improper, but concluded, reasonably in this court’s view, that the error was harmless. Floyd, 118 Nev. at 172-74, 42 P.3d at 260-61; see also id., 118 Nev. at 177, 42 P.3d at 263 (Maupin, C.J., and Agosti, J., concurring) (“I concur in the result reached by the'majority, but write separately to state my view that there was no prosecutorial misconduct at' trial in connection with the “massacre” argument.... While the rhetoric was not specifically accurate, the argument was a legitimate comment on the apparent random gunning down of five people, killing four of them.”). The comment did not go to any factual dispute in the case. While the comment was improperly inflammatory, this court finds that it did not have had any impact on the outcome of Floyd’s trial. The magnitude and brutality of Floyd’s shooting rampage was plain from the evidence; the prosecutor’s characterization of it added little. Moreover, the trial court properly instructed the jury that the evidence they were to consider consisted of the testimony of witnesses, exhibits, and any facts admitted or agreed to by counsel, and that “[statements, arguments and opinions of counsel are not evidence in the case.” Exhibit 44, Instruction No. 6.

Floyd also claims that certain remarks made by the prosecutors in their closing arguments in the guilt phase of the trial were improper expressions of personal opinion and referred to facts not in evidence, Floyd points to the following remarks of the prosecutors in this regard:

(1) “... I don’t think there’s much question about the facts in this case.” (Respondents’ Exhibit 43, p. 10);

(2) “There can be no doubt, of course, that she [the sexual assault victim] was in the presence of the defendant.” (Id. at 12);

(3) “I hope that you will understand her [the sexual assault victim’s] reluctance to get involved. I hope that you will understand the system that had her arrested in order to secure her testimony. We felt that the case was sufficiently important that we needed not just her as a victim for the counts charged, but also to have an accurate accounting of that one and a half or two hours that he intentionally omitted.” (Id. at 13) (objected to, and objection sustained);

(4) “It is difficult to understand, based on everything we’ve heard, how a man could forget an hour and a half activity with [the sexual assault victim], particularly when it preceded maybe by ten minutes, the homicides. Zane Floyd recalled walking from his house. He recalled putting on his boots. He recalled turning on the music. He recalled walking every step. Those were his words, every step through the store, even the direction he took. Yet for whatever reason, and I’m sure it has something to do with his idea of what a man is and what, how others are to view a man, killing is one thing, but raping or sexually assaulting a woman, that is a cowardly act, and so you don’t want to mention that.” (Id. at 14);

(5) “If you find not guilty as to Mr. Emenegger [the victim of the attempted murder], which seems rather rash, then I presume your logic would follow that you would find not guilty as to everybody else.” (Id. at 22);

(6) “The fact that no condom was used in this case is probably proof enough. A lady such as her has to use condoms, if they don’t want to die an early death of AIDS or some other sexually transmitted disease. She had one, but she had no opportunity to get it out.” (Id. at 25);

(7) “Devil whiskey made me do it. It wasn’t me, it was methamphetamine or cocaine or heroin or POP. This is what defendants would say for years when they had no real excuse for the conduct that they committed.” (Id. at 39) (objected to, and objection sustained);

(8) “I think it is easy to look at what he did and what he said and make it absolutely clear that he knew exactly what he was doing when he raped [the sexual assault victim] and he knew exactly what he was doing and the consequences thereof when he shot everybody he could find in the Albertson’s store at about 5:15....” (Id. at 43);

(9) “He told [the sexual assault victim] if he had a smaller gun he could kill her and he told her he had a smaller gun, but he left it in a friend’s car. Didn’t that turn out to be true? He told the police he had a smaller gun. He left it in Mr. Godman’s car. We had the gun salesman who came on and said I sold him a pistol at the same time I sold him a rifle. And what’s the materiality? He .understood fully well that if he shot her with that shotgun it would make so much noise that people would hear, the police would be called, he would only be able to kill one person. But if he had a smaller gun, he could have killed her with the smaller gun and then still maybe gone down to Albertson’s and gone on a shooting spree with the shotgun. If he had that pistol, [the sexual assault victim] wouldn’t be alive today.” (Id. at 45); and

(10)“I mean if he was going to kill himself, then there was no accountability. ... But then when it came down to it, he didn’t have the courage to pull the trigger. And so there has to be some accountability.” (Id. at 51-52).

See Second Amended Petition, pp. 195-98. Regarding the second, sixth, and ninth remarks quoted above, the court finds them to be appropriate commentary on the evidence, without any expression of improper personal opinion. In the other seven, the prosecutor did speak in the first person, and did perhaps express personal opinion. However, with respect to the first, fourth, fifth, eighth, and tenth remarks quoted above, those remarks concerned inferences or conclusions that could arguably be drawn from the evidence; while it is improper for prosecutors to make arguments in terms of their personal beliefs, those remarks were essentially fair commentary on the evidence. The other two remarks — the third and seventh quoted above — were improper expressions of opinion regarding matters not in evidence. Defense counsel objected to those remarks, and the court sustained the objections, undermining their force. And, at any rate, none of the prosecutor’s improper expressions of personal opinion were anywhere near egregious enough to render Floyd’s trial unfair.

Floyd also claims that, in their closing arguments in the guilt phase of the trial, the prosecutors made remarks that misstated the law; in this regard, Floyd points to the following:

(1) “I’m going to get into, what I would ask you to do, you can approach deliberations any way you want, but we have so many different crimes. What you might wish to do is take it one crime at a time, and the verdict forms will probably be in that order: Burglary, murder, kidnapping, sexual assault.” (Respondents’ Exhibit 43, p. 14);

(2) “The burglary, the wording is a little different, but it also has the weapons enhancement. Now what is a burglary. The judge read the instructions. Some people confuse burglary with robbery. We have burglary in this case. Burglary occurs when someone crosses the threshold of your residence, a business, your automobile, puts their hand in your automobile, open window, let’s say, with the intention of committing any felony, stealing your purse out of it. If it has more than 250 bucks in it, that’s a felony, or with the intention of stealing. Reaching inside your car, if you can believe it, and there’s a nickel in there and somebody picks that nickel up off the seat of the car, that technically is a felony in the State of Nevada, felony burglary. We’re not there, obviously, and I don’t want to trivialize the offense of burglary, but I’m simply illustrating to you what the crime is. It doesn’t matter, as in this case, that the store is open for business. That doesn’t matter. You walk into Save-On Drug and with the intention — and that’s the key, what was your intention when you crossed that threshold— with the intention of stealing, you have committed the crime, whether you steal or not. Now, nobody can ever prove that crime, of course against you, but that is the crime of burglary. That’s how it is defined in the State of Nevada. We live in Nevada, so we’ll follow the law of the State of Nevada. Many people come from other state where it’s not quite the same way. If you have sat in juries elsewhere you might be surprised by what the law is in this state.” {Id. at 16-17);

(3)“Next I would like to discuss with you first degree murder, because that is what we have charged him with. After burglary we have four counts of first degree murder. First degree murder can be committed two ways, so that’s why I brought this out and it is really quite simple. Let’s just say first degree murder. The first way is premeditated and deliberate murder, premeditated deliberate intentional murder. Premeditated. I think that’s right. Deliberate. And the other element is willful. I want to make sure I spell that right. That’s the first way, and I would submit to you that we don’t even have to talk about the second one, but I’m going to talk about it anyway because it applies to this case because the law in the State of Nevada allows two different theories of first degree murder. And when you read the instructions you will conclude that only lawyers could draft these things because they sound so much alike that there’s hardly a distinction.” (Id. at 17-18); and

(4) “Sexual assault is simply sex with another person against that person’s will. That’s it. That’s it. You don’t have to beat them, you don’t have to threaten them with a gun, you don’t have to hurt them. It is simply sex that is against the will of the victim, or, or where the defendant should know that the victim is incapable of resisting. They are both applicable in this case. You can take your choice. You don’t need both, you can take your choice. A 115 pound lady versus a 200 pound man with a shotgun on his home turf, no one can resist that very successfully.” (Id. at 24-25) (objected to; trial judge stated: “I’m not sure that I agree with your example ... but the instruction will speak for itself.”).

See Second Amended Petition, pp. 196-97. As to none of these remarks has Floyd shown the prosecutor to have clearly misstated the law; where the remarks arguably include inaccurate statements of law, they are at best muddled and ambiguous. The law was properly and clearly set forth in jury instructions, and the jury was instructed to follow the law as stated in those instructions. See Exhibit 44, Instructions No. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 25, 26, and 28. Floyd has not shown how any arguable misstatement of law in these remarks could have affected his trial such as to render it unfair.

Floyd also contends that the prosecution improperly “attempted to shift the burden of proof’ in making the following remarks in the State’s closing argument in the guilt phase of his trial:

Murder of the second degree is a lesser included offense of murder of the first degree. You are allowed to consider murder of the second degree only, only if you have a reasonable doubt as to murder of the first degree. It is not one of these things where you have a choice, you know, you flip a coin and say hey, let’s give him murder of the second degree. No, no, only if Mr. Bell [the other prosecutor] and I have not proven to you beyond a reasonable doubt that he committed murder of the first degree. Only then do you even look at murder of the second degree....

Respondents’ Exhibit 43, p. 23; see Second Amended Petition, p. 197. Floyd does not explain how this argument might have shifted the burden of proof, or how it was improper in any other respect, such as to render his trial unfair. See Exhibit 44, Instruction No. 19 (“You may consider the lesser offense of murder of the second degree only if you have a reasonable doubt as to the offense of murder of the first degree.”).

Finally, with respect to the prosecutors’ closing arguments in the guilt phase of his trial, Floyd claims that, in the following comment, the prosecutor “improperly misstated the law, appealed to the community conscience, and then attempted to shift the burden of proof’:

When we started this case last Monday there was a presumption of innocence and he was clothed with that presumption of innocence at that time. Once Mr. Bell [the other prosecutor] and I present you with sufficient evidence to prove to you his guilt beyond a reasonable doubt, that presumption was removed and you as jurors in our system, the only way to let the judge and the community know that the presumption of innocence is no longer there is to return verdicts of guilty.

Respondents’ Exhibit 43, p. 29; see Second Amended Petition, pp. 197-98. Floyd argues that the prosecutor’s argument was incorrect and improper because “[t]he presumption of innocence persists until the jury deliberates and determines that guilt has been demonstrated beyond a reasonable doubt.” Id. át 198. The court finds that there was no misstatement of the law in this comment; certainly, there was no misstatement of law that could possibly have rendered Floyd’s trial unfair. The prosecutor’s point was essentially correct — only proof of guilt beyond a reasonable doubt could overcome the presumption of innocence. See Exhibit 44, Instruction No. 5 (“The Defendant is presumed innocent unless the contrary is proved.”). Moreover, the prosecutor did not minimize the importance of the presumption of innocence; on the contrary, the prosecutor went on from the contested comments to conclude his argument as follows:

That is how it’s done. It is called due process in this country. Whether you are a citizen or not, you are entitled to that due process and that’s what we have been through in this courtroom. As one gentleman said, we are not in Turkey, we are not in Iran, we are not wherever.

We are here in America. We have a due process clause that applies to everybody, no matter how heinous the crime. And it is because of that due process clause that we have gone through this week presenting the evidence to you so that when you do return the guilty verdicts, which I fully expect, based on the evidence, you can at least assure the world that we have provided him with the due process that our constitution demands that he be given. Thank you.

Respondents’ Exhibit 43, pp. 29-30.

Turning to the penalty phase of the trial, Floyd claims that the prosecutors improperly expressed personal opinion, and misstated the facts in evidence, in the State’s closing argument in the penalty phase of his trial, in the following remarks:

(1) “And the third mitigator is that the killing was random and without apparent motive. Nothing scares people more than the potential of random victimization. Let me repeat that. Nothing scares people more than the potential of random victimization.” (Respondents’ Exhibit 51, p. 45) (objected to, and objection overruled);

(2) “The victims were absolutely innocent. They were doing what we expected people to do. They were going to work, trying to feed their families, when they were brutally and senselessly killed. The defendant had no bone to pick with the victims. He had no bone to pick with Albertson’s. It wasn’t like he' was a fired employee and had some misguided thought that he wanted retribution. It was a thrill kill to kill whoever was available.” (Id. at 46);

(3) Four, how did the killings occur? These killings are so vicious and done so ugly. Tommy Darnell was shot in the back; no chance. Troy Sargent shot in the heart; no chance. Chuck Leos shot twice; both deadly wounds; no chance. But even worse than that, Zachary Emenegger was hunted down and gunned down. He was begging, “No, no, please,” as he was shot, knocked to the ground and shot again. The ruthlessness of this crime is beyond belief. And, of course, the most ruthless of all is poor Luci Tarantino, a grandmother, a lady in her 60s who wouldn’t hurt a fly. She’s begging for her life and this defendant calmly walks up within two feet of her face and pulls the trigger — full well knowing he had an expertise in guns and he told the police what was going to happen— that her head would just explode.” (Id. at 52-53);

(4) “The defendant has a hollow soul, ladies and gentlemen. He doesn’t care who he hurts, when he hurts, or how he hurts as long as he can satisfy his own basic desires. He plays by his own rules and he doesn’t care who suffers or how much. Make no mistake about that. You are in the presence of the most dangerous man you will ever encounter in ... your lifetime.” (Id. at 55) (objected to, and objection overruled);

(5) “Whereas this defendant has a heart bent on destruction. A hollow soul. And he still has a hollow soul today. When he gave his allocution, when he got up here to say he was sorry, he said the right words, but you could tell none of them came from the heart. He didn’t look at the jury. He didn’t look at the victims. He didn’t even look at his mother. He just kind of looked out. As he did on June the 3rd. Sort of a blank stare, a monotone, ladies and gentlemen. The Zane Floyd that sits here today is the same Zane Floyd that was raping and killing on June 3rd.” (Id. at 60-61);

(6) “... [T]his coward ... This man who committed these cowardly acts and set out to kill himself whimpered out in front of the store and, as Mr. Bell [the other prosecutor] said, he tried to get away.” (Id. at 127-28) (objected to, and objection overruled);

(7) “These mitigators pale, pale in comparison to what you could pile up. Remember that table they had up here with all those things piled up on top? Take the average burglar that’s in the Nevada State Prison. It would be a pile twice that high. Why? Because you would look into the background and truly see some depravity and some neglect and disadvantage. This is embarrassing.” (Id. at 129);

(8) “They mentioned a 10 by 15 cell block. Give me a break. He wants to be on the yard, he wants to play ball, he wants to watch television, have three meals a day — ” (Id. at 137) (objected to, and objection sustained); and

(9) “Many people do not kill even one person or rape a single human being and still receive life without parole. When I speak about ... When I speak about proportionality of sentence, surely a quadruple murderer deserves a greater punishment than those who have murdered only once, than those who have murdered only twice, or three times, or those who have not murdered at all or raped at all.” (Id. at 137-38) (objected toy and objection sustained).

See Second Amended Petition, pp. 199— 201. This court finds that with respect to first, second, third, fourth, fifth, and sixth comment quoted above, those remarks by the prosecutors were fair commentary on the evidence, and on the alleged aggravating circumstances, without any improper expression of personal opinion. In the other three comments above, the seventh, eighth, and ninth quoted comments, the prosecutor did express what were apparently opinions regarding facts not in evidence. With respect to the eighth and ninth quoted remarks, defense counsel objected and the court sustained the objections. At any rate, given the strength of the prosecution’s case in the penalty phase of the trial, none of the prosecutor’s expressions of personal opinion were so egregious as to render Floyd’s trial unfair.

Floyd claims that the following argument miseharacterized the defense’s argument:

I also rather expect we’ll hear the ridiculous phrase “structured setting.” The defense, I have no doubt, is going to come up and concede that he can’t ever. live in free society given what he did, but he’d be okay in a structured setting; i.e. prison. That’s hogwash, ladies and gentlemen. School’s a structured setting and he was constantly fighting in school, fighting other students, disruptive.

Respondents’ Exhibit 51, p. 58; see Second Amended Petition, pp. 199-200. The court finds that this argument was not improper. It was fair argument regarding the evidence, and regarding the weight of proffered mitigation. To the extent that, arguably, the prosecutor should not have used the terms “ridiculous phrase” or “hogwash” to express the State’s disagreement with the position of the defense, those remarks were not so egregious as to render Floyd’s trial unfair.

Floyd claims that in the following remarks, in the State’s closing arguments in the penalty phase of his trial, the prosecutor improperly expressed his personal opinion, “miseharacterized the mitigation evidence,” and “misstated the facts”:

Well, let’s talk about the mitigating circumstances that might conceivably be argued by the defense that are provided by law.

The defendant has no significant criminal history. Well, you know, the State would concede that’s probably a mitigating circumstance. Should it be considered? He has one DUI. I don’t think that’s significant. I think if I were a juror, I’d put that one on the scale of justice.

The defendant was under extreme mental or emotional disturbance. Now, understand this: It’s not clear whether that has to be simultaneously with the brutal killings at Albertson’s or a more general proposition. But we do know this: The defendant was not insane; he was not mentally ill; he was above average intelligence; he knew right from wrong; he acted lawfully when he felt like it and unlawfully when he felt like it; he played by his own rules and let others suffer the consequences.

Whether or not you believe that he was under significant emotional distress, it’s up to you. Keep in mind when you’re looking at that, by his own admission, any problems he had were of his own making. It was he who quit his job; it was he who chose to gamble; it was he who was frustrated with his girlfriend. But it may be that some people will think that should go on the scale.

And the last specifically provided is the youth of the defendant. Now, the law doesn’t define youth either. Some people may think 28 is young. Other people may think that this should be reserved for people that are 16, 17, or 18 who commit first-degree murder. But in any event, if one or more of you think that he’s young and maybe ought to get a little credit for that, put that one there too.

Now in addition to these three that are provided by the law, again, I told you that it was open ended. Any other mitigating circumstance. So the defense has made a laundry list of red herrings to make it appear in this case that there’s a whole lot of them and, therefore, they should have some weight. They’ve stacked wishes upon hopes upon dreams that you’ll count numbers, that you’ll count some things twice, and you’ll say, “Well, wait a minute. There’s a lot of mitigation here.”

Just give you an example. We know that the defendant was not intoxicated to the degree to affect his ability to formulate and carry out a plan of destruction. But there’s no question he’d had a couple of drinks. Somebody thinks alcohol is a mitigating factor. Throw that on the scale.

The State submits this isn’t even close, ladies and gentlemen. When you put that over her and you put it on the scales of justice, it’s a hundred to nothing. The aggravators far, far, far outweigh all of the mitigators this defendant could [ever] bring forth.

You can throw the whole list away.

Respondents’ Exhibit 51, pp. 47-51, 128; see Second Amended Petition, pp. 199-200. On the appeal in Floyd’s first state habeas action, the Nevada Supreme Court found the prosecutors’ description of mitigating factors proffered by the defendant as “red herrings,” and their argument that “you can throw the whole list away,” to be “misleading or excessively intemperate and derogatory toward the defense.” Order of Affirmance, Petitioner’s Exhibit 12, pp. 10-11. The Nevada Supreme Court also found that such arguments unfairly implied “that the defense is trying something underhanded.” Id. The court pointed out that prosecutors have a “duty not to ridicule or belittle the defendant or his case,” and that they “violate their primary duty, which is to see that justice is done, when they suggest to the jury that the defendant’s case for a sentence less than death is somehow outrageous or illegitimate.” Id. at 11-12. The Nevada Supreme Court “assume[d] that counsel had no sound strategy for not objecting to these remarks,” but, nevertheless, “conclude[d] that there is no reasonable probability that Floyd would not have received a death sentence if his counsel had objected at trial or raised this issue on appeal.” Id. at 12. This court finds reasonable the Nevada Supreme Court’s ruling with respect to the prosecutor’s use of the phrases “red herrings,” and “you can throw the whole list away.” Beyond that, regarding the argument quoted above, the court finds that it was fair commentary on the evidence and on the mitigating factors submitted by the defense.

Floyd claims that the prosecutor improperly expressed personal opinion, and “challeng[ed] the jurors to explain their decision not to give death to the victim’s families,” as follows:

MR. BELL [prosecutor]:.... If not this cáse, ladies and gentlemen, what case? If not this case, what case? If the conduct in this case is not sufficiently offensive or the loss not sufficiently devastating to merit the maximum penalty allowed by law, then come back and tell me, and while you’re at it, tell Leanne Leos, Mona Nall—

MR. BROWN [defense counsel]: Objection, your Honor.

THE COURT: Sustained.

MR. BELL: That there is a case that merits the maximum punishment because you’ve agreed to that when you were selected as jurors. But this is not the case. When you get back to the jury room with eight or ten or eleven of you and are convinced in your heart of hearts this is the case for the death penalty and two or three of you seem to have some difficulty on behalf of the citizens of this community, look at them and say, “If not this case, what case?”

Respondents’ Exhibit 51, pp. 40-41; see Second Amended Petition, p. 199. This court finds that this argument was improper and that the trial court correctly sustained defense counsel’s objection. The court does not, however, find the argument to be so egregious as to infect Floyd’s trial with unfairness. The strength of the aggravating factors in this case — the facts that Floyd murdered four people, and put many more at great risk of death, at random and with no apparent motive — was made plain by the evidence, and the prosecutors’ commentary added little force to that evidence.

Floyd claims that, in the following argument, the prosecutor “improperly attempted to bolster the credibility of government neuropsychologist Mortillaro” and improperly misstated the facts:

There were no questions of neuropsychologist Louis Mortillaro because he knew what he was talking about and the right tests were applied and they show that he has no brain damage, and now I’m talking about some mitigators they have here about his mental state. There was no brain damage, he has an average I.Q., no hallucinations, no delusions, not mentally ill.

Respondents’ Exhibit 51, p. 126; see Second Amended Petition, p. 200. The court finds, however, that this argument was fair commentary on the testimony of Dr. Mortillaro. See Testimony of Louis Mortillaro, Ph.D.,- Exhibit 51, pp. 3-8.

Floyd claims that the following arguments of the prosecutor concerning victim impact testimony were improper:

—“What wouldn’t Danielle and Gina and Lani and their father Joseph give to see Luci smile just one more time?” (Respondents’ Exhibit 51, p. 130); and

—“Thomas Darnell. I don’t know how Mona Nall has done it. You know, when you go through the tremendous tragedies together that Mona has suffered and had suffered with her son over the years, so many tragedies, so many hardships, there’s a bond that forms. It is just an unbelievable story of survival.” (Respondents’ Exhibit 51, p. 132).

See Second Amended Petition, p. 201. This commentary on the victim impact testimony was, in this court’s view, measured, in light of the force of the victim impact testimony, was not improper, and certainly did not approach a due process violation.

Floyd claims that in the following portion of his closing argument, in the penalty phase of the trial, the prosecutor improperly told the jury that one reason to impose the death penalty was to send a message to others in the community:

What are the reasons, ladies and gentlemen, for imposing the death penalty? [Penologists] generally come up with two separate reasons for the death penalty: deterrence and punishment.

Deterrence because somehow it sends a message to others in our community, not just that there is a punishment for a certain crime, but that there is justice, that there is a system that metes out punishment in a proportional manner, that we do not.

MR. BROWN [defense counsel]: I think it’s the message to the community argument, Judge.

THE COURT: I think he’s organizing a period of chronology, and on that basis it’s overrruled.

MR. KOOT [prosecutor]: There is a message to everyone out there that if the punishment fits the crime, then we have a system that works. And the public is entitled to have faith and confidence in their system. It has deterrence in the other way too. He won’t kill again no matter where he is, no matter what state of depression he suffers.

Respondents’ Exhibit 51, p. 136; see Second Amended Petition, p. 201. This court finds that this argument was improper. The decision whether to impose the death penalty must involve “an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (emphasis omitted). These comments by the prosecutor cut against that requirement. However, when taken in context, the prosecutor’s comments only purported to provide background information about the death penalty, and did not include any overt instruction to the jury to impose the death penalty in this case to send a message to the community. Nor did the comments include any attempt to incite the passions of the jurors. The court finds that these comments were unlikely to mislead the jury, and, at any rate, did not render Floyd’s trial unfair.

Finally, with regard to the prosecution’s penalty-phase closing arguments, Floyd complains that the prosecutors “improperly attempted to take away the jury’s sense of responsibility,” in the following comments:

MR. KOOT [prosecutor]: Lastly, ladies and gentlemen, and it is always the case, that defense counsel attempts to make this more difficult than it already is, more difficult than it has to be.

Mr. Hedger [defense counsel] suggested, as did Mr. Brown [defense counsel], that you can take the, quote, easy road and impose death. That is not the easy road. That is presumptuous on their part. They have, obviously, never sat where you’re sitting. It is never, ever easy to return this verdict. Never. And it’s not supposed to be.

But you’re not killing him. You are part of a shared process. MR. BROWN [defense counsel]: Objection, Judge.

THE COURT: What is the objection?

MR. BROWN: Trying to spread out the responsibility in individualized considerations of the jurors who can’t disburse that.

THE COURT: Overruled.

MR. KOOT: You are asked to render a verdict. The legislature through the people in the state decided that the ultimate punishment would be the death penalty. And even after you render your verdict, there’s a process that continues.

MR. BROWN: The responsibility or the jury’s duty is to render the verdict.

THE COURT: This is part of their duty.

Are you saying something other than that, Mr. Koot?

MR. KOOT: No, I’m not, your Honor.

Respondents’ Exhibit 51, pp. 138-39; see Second Amended Petition, p. 201. This court finds that these comments were improper to the extent that they minimized the jurors’ sense of responsibility for the death sentence. See Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (improper for prosecution in capital case to suggest that responsibility for determining the appropriateness of the death penalty rests elsewhere, with an appellate court, for example). The offending comments by the prosecutor, however, were somewhat ambiguous. Furthermore, reinforcing the weight of the jury’s responsibility, the prosecutor stated: “It is never, ever easy to return this verdict. Never. And it’s not supposed to be.” Respondents’ Exhibit 51, pp. 138-39. The court finds that while these comments were improper, they were not such as to render Floyd’s trial unfair.

Taking cumulatively the arguably improper prosecution arguments challenged by Floyd in Claim 10A, the court finds that they did not render Floyd’s trial fundamentally unfair, such as to give rise to a violation of his federal constitutional right to due process of law. See discussion, infra, pp. 1200-04. The Nevada Supreme Court’s denial of relief with respect to Claim 10A was not objectively unreasonable.

Regarding Claim 10B, given the court’s view of the alleged improper prosecution arguments—finding that some were improper, but not nearly enough to give rise to a due process violation—the court determines that there was no constitutional violation in the trial court’s provision of the transcript of the closing arguments to the jury for use during their deliberations. See Second Amended Petition, pp. 202-03. The state supreme court’s denial of relief with respect to Claim 10B was not objectively unreasonable.'

Regarding Claim 10C, Floyd’s claim that the State committed misconduct by failing to preserve his blood sample, the court finds that claim to be wholly unsupported and without merit. Claim 10C is, in its entirety, as follows:

The state had a responsibility to preserve evidence. The state cannot be allowed to benefit by its failure to preserve evidence, particularly when the state’s case is strengthened, and the defendant is unfairly prejudiced.

In this case, the state failed to preserve and process the sample of Mr. Floyd’s blood taken for the purpose of drug and alcohol testing. It is the belief of Michael Floyd, Mr. Floyd’s father, that the state contaminated the blood sample taken from Mr. Floyd thereby preventing him from utilizing his own