Zane Floyd v. Timothy Filson ( 2020 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ZANE FLOYD,                              No. 14-99012
    Petitioner-Appellant,
    D.C. No.
    v.                     2:06-cv-00471-
    PMP-CWH
    TIMOTHY FILSON; ADAM PAUL
    LAXALT, Attorney General,               ORDER AND
    Respondents-Appellees.       AMENDED
    OPINION
    Appeal from the United States District Court
    for the District of Nevada
    Philip M. Pro, District Judge, Presiding
    Argued and Submitted January 31, 2019
    San Francisco, California
    Filed October 11, 2019
    Amended February 3, 2020
    Before: Marsha S. Berzon, John B. Owens,
    and Michelle T. Friedland, Circuit Judges.
    Order;
    Opinion by Judge Friedland
    2                        FLOYD V. FILSON
    SUMMARY *
    Habeas Corpus / Death Penalty
    The panel affirmed the district court’s denial of Zane
    Floyd’s habeas corpus petition challenging his Nevada
    conviction and death sentence for four counts of first-degree
    murder.
    As to Floyd’s ineffective-assistance-of-trial-counsel
    claims raised for the first time in his second state petition,
    which the Nevada Supreme Court denied as untimely and
    successive, the panel held that because the claims would fail
    on the merits, it did not need to resolve whether section
    34.726 of the Nevada Revised Statutes is adequate to bar
    federal review, or whether Floyd can overcome his
    procedural default. The panel held that Floyd’s remaining
    ineffective-assistance-of-counsel claim that was raised and
    adjudicated in state court fails under AEDPA’s deferential
    standards.
    Regarding Floyd’s claim that his constitutional rights
    were violated when the State’s expert made reference during
    his testimony to test results that he had obtained from
    Floyd’s expert, the panel held that the Nevada Supreme
    Court’s conclusion on direct appeal that no constitutional
    error occurred was not contrary to or an unreasonable
    application of controlling Supreme Court case law.
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    FLOYD V. FILSON                        3
    Regarding Floyd’s claim that the trial court violated his
    constitutional rights by failing to grant a change of venue,
    the panel held that the district court did not err when it
    reasoned that AEDPA limited its review to those materials
    before the state courts that had rejected the venue claim.
    Regarding Floyd’s claim that the trial court violated his
    constitutional rights by permitting the mother of a victim to
    testify extensively during the penalty phase about her son’s
    difficult life and previous experiences with violent crime, the
    panel held that the Nevada Supreme Court’s conclusion that
    the admission of the testimony did not unduly prejudice
    Floyd was not contrary to or an objectively unreasonable
    application of clearly established federal law.
    Reviewing under AEDPA, the panel held that the
    Nevada Supreme Court’s determination that the prosecutor’s
    improper statement that Floyd had committed “the worst
    massacre in the history of Las Vegas” was harmless was
    neither contrary to nor an unreasonable application of
    Darden v. Wainwright, 
    477 U.S. 168
    (1986). Reviewing de
    novo, the panel held that several of the prosecutor’s other
    statements—suggesting that other decisionmakers might
    ultimately decide whether Floyd received the death penalty,
    and implying that the jury could sentence Floyd to death to
    send a message to the community—were improper but did
    not so affect the fundamental fairness of the proceedings as
    to violate the Eighth Amendment or result in the denial of
    due process.
    The panel declined to expand the certificate of
    appealability to include claims challenging Nevada’s lethal
    injection protocol and courtroom security measures that
    caused certain jurors to see Floyd in prison garb and
    restraints.
    4                    FLOYD V. FILSON
    COUNSEL
    Brad D. Levenson (argued) and David Anthony, Assistant
    Federal Public Defenders; Rene Valladares, Federal Public
    Defender; Office of the Federal Public Defender, Las Vegas,
    Nevada; for Petitioner-Appellant.
    Jeffrey M. Conner (argued), Deputy Assistant Attorney
    General; Heidi Parry Stern, Chief Deputy Attorney General;
    Adam Paul Laxalt, Attorney General; Office of the Attorney
    General, Las Vegas, Nevada; for Respondents-Appellees.
    H. Louis Sirkin, Santen & Hughes, Cincinnati, Ohio, for
    Amicus Curiae National Association for Public Defense.
    Thomas C. Sand and Nicholas H. Pyle, Miller Nash Graham
    & Dunn LLP, Portland, Oregon, for Amicus Curiae The
    National Organization on Fetal Alcohol Syndrome.
    Elizabeth Ballart and William Leiner, Disability Rights
    California, Oakland, California, for Amici Curiae Disability
    Law Center of Alaska, Disability Rights California, National
    Disability Rights Network, and Nevada Disability Advocacy
    & Law Center.
    John L. Krieger, Dickinson Wright PLLC, Las Vegas,
    Nevada; Justin J. Bustos, Dickinson Wright PLLC, Reno,
    Nevada; for Amici Curiae Canadian Criminal Justice
    Professors, Litigators, and Expert Witnesses.
    Lisa Rasmussen, Law Office of Lisa Rasmussen, Las Vegas,
    Nevada, for Amici Curiae The Directors of the Three
    Research Centers of Birmingham City University’s School
    of Law.
    FLOYD V. FILSON                       5
    ORDER
    The opinion filed on October 11, 2019, reported at 
    940 F.3d 1082
    , is amended as follows.
    On page 12 of the slip opinion, following , insert the footnote 261 F.3d 912
    ,
    919 (9th Cir. 2001).>.
    On page 14 of the slip opinion, replace  with .
    On page 15 of the slip opinion, replace  with , and delete .
    On page 16 of the slip opinion, replace  with .
    6                     FLOYD V. FILSON
    On page 17 of the slip opinion, replace 
    with .
    On page 26 of the slip opinion, in the current footnote 5,
    replace 261
    F.3d 912
    , 919 (9th Cir. 2001)> with 
    261 F.3d at 919
    >.
    With these amendments, the panel has unanimously
    voted to deny Appellant’s petition for panel rehearing and
    rehearing en banc. The full court has been advised of the
    petition for rehearing en banc, and no judge has requested a
    vote on whether to rehear the matter en banc. Fed. R. App.
    P. 35. The petition for panel rehearing and rehearing en banc
    is accordingly DENIED. No further petitions for panel
    rehearing or rehearing en banc will be entertained.
    OPINION
    FRIEDLAND, Circuit Judge:
    In 1999, Petitioner-Appellant Zane Michael Floyd shot
    and killed four people at a Las Vegas supermarket. A
    Nevada jury found Floyd guilty of four counts of first-degree
    murder, as well as several related offenses, and sentenced
    him to death. After the Nevada Supreme Court upheld his
    conviction and sentence on direct appeal and denied a
    petition for postconviction relief, Floyd sought a writ of
    habeas corpus in the United States District Court for the
    District of Nevada. Following a stay during which Floyd
    filed an unsuccessful second petition for postconviction
    relief in state court, the district court denied the federal
    habeas petition but issued a certificate of appealability as to
    various claims now before us. We affirm the district court’s
    FLOYD V. FILSON                        7
    decision and deny Floyd’s motion to expand the certificate
    of appealability.
    I.
    A.
    Before dawn one morning in June 1999, Floyd called an
    escort service and asked the operator to send a female escort
    to his parents’ home in Las Vegas, where he had been living
    since his discharge from the U.S. Marine Corps the previous
    year. When a young woman sent by the service arrived,
    Floyd threatened her with a shotgun and forced her to engage
    in vaginal and anal intercourse, digital penetration, and oral
    sex. At one point he removed a shell from his shotgun and
    showed it to her, telling her that her name was on it. He later
    put on a Marine Corps camouflage uniform and told her that
    he planned to kill the first nineteen people he saw that
    morning. Commenting that he would have already shot her
    had he had a smaller gun on him, he told the woman she had
    one minute to run before he would shoot her. She escaped.
    Floyd then walked about fifteen minutes to an Albertsons
    supermarket near his home. When he arrived at 5:15 am, he
    immediately began firing on store employees. He shot and
    killed four Albertsons employees and wounded another. The
    store’s security cameras captured these events.
    When Floyd exited the store, local police were waiting
    outside. Officers arrested him, and he quickly admitted to
    shooting the people in the Albertsons. Prosecutors charged
    Floyd with offenses that included multiple counts of first-
    degree murder and indicated that they would seek the death
    penalty.
    8                     FLOYD V. FILSON
    B.
    Numerous psychiatric experts examined Floyd and
    explored his background. On the day of his arrest, Floyd’s
    public defenders retained Dr. Jakob Camp, a forensic
    psychiatrist who examined Floyd for three hours. Dr. Camp
    concluded that Floyd did not suffer from a mental illness that
    would impair his ability to stand trial, noted that Floyd’s
    experiences during and after his time in the Marines might
    have had a bearing on his actions that day, and suggested that
    counsel obtain Floyd’s adolescent health records to learn
    more about an attention deficit/hyperactivity disorder
    (“ADHD”) diagnosis for which Floyd had been previously
    treated with the drug Ritalin. Floyd’s counsel eventually
    obtained records from two doctors who had treated Floyd’s
    mental health issues as an adolescent that confirmed this
    type of diagnosis. Those doctors had diagnosed Floyd with
    attention deficit disorder (“ADD”), although they had also
    determined that Floyd did not have any significant cognitive
    deficits.
    Shortly before trial, defense counsel also retained
    clinical neuropsychologist Dr. David L. Schmidt to conduct
    a full examination of Floyd. Dr. Schmidt concluded that
    Floyd suffered from ADHD and polysubstance abuse, but
    that he showed “[n]o clear evidence of chronic
    neuropsychological dysfunction.” He also diagnosed Floyd
    with a personality disorder that included “[p]aranoid,
    [s]chizoid, and [a]ntisocial [f]eatures.”
    Discouraged by Dr. Schmidt’s findings, which they
    worried would make Floyd unsympathetic to a jury, counsel
    turned to clinical neuropsychologist Dr. Thomas Kinsora.
    After reviewing Dr. Schmidt’s report and a report from
    Floyd’s childhood doctor, Dr. Kinsora was highly critical of
    Dr. Schmidt’s work, questioning the validity of the tests that
    FLOYD V. FILSON                        9
    Dr. Schmidt had conducted. Dr. Kinsora advised Floyd’s
    counsel that it was “not clear whether or not a more
    comprehensive assessment would have revealed ongoing
    deficits or not,” but that he “wouldn’t be surprised to find
    some continued evidence of neurological problems” in light
    of the findings of one of the doctors who had examined
    Floyd as an adolescent. The defense subsequently un-
    endorsed Dr. Schmidt as an expert, but not before the state
    trial court ordered it to provide the prosecution a copy of
    Dr. Schmidt’s report along with the associated raw testing
    data.
    Defense counsel also retained Dr. Frank E. Paul, a
    clinical psychologist and retired Navy officer, who
    investigated and described in detail Floyd’s background and
    life history. Floyd’s mother told Dr. Paul that she had used
    drugs and alcohol heavily earlier in her life, including when
    she was pregnant with her first child, but that she “stopped
    drinking and all drug use when she found herself pregnant
    with [Floyd] . . . but continued to smoke tobacco.” Dr. Paul
    also learned of an incident in which Floyd, at the age of
    eight, was accused of anally penetrating a three-year-old
    boy. Dr. Paul further learned that Floyd began using drugs
    and alcohol extensively in high school. Dr. Paul described
    Floyd’s Marine Corps deployment to the U.S. base at
    Guantanamo Bay, Cuba as difficult, explaining that Floyd
    struggled with the stress and monotony of the deployment
    and drank extremely heavily during that period. Defense
    counsel originally named Dr. Paul as an expert but did not
    call him at trial and never disclosed Dr. Paul’s report to the
    prosecution.
    At the guilt phase of Floyd’s trial, the jury convicted him
    of four counts of first-degree murder with use of a deadly
    weapon, one count of attempted murder with use of a deadly
    10                   FLOYD V. FILSON
    weapon, one count of burglary while in possession of a
    firearm, one count of first-degree kidnapping with use of a
    deadly weapon, and four counts of sexual assault with use of
    a deadly weapon.
    During the penalty phase of Floyd’s trial, the State
    argued that three statutory aggravating factors justified
    application of the death penalty: killing more than one
    person, killing people at random and without apparent
    motive, and knowingly creating a risk of death to more than
    one person. In arguing that mitigating circumstances
    weighed against imposition of the death penalty, the defense
    called (among other witnesses) two experts hired by defense
    counsel: Dr. Edward Dougherty, a psychologist specializing
    in learning disabilities and education; and Jorge Abreu, a
    consultant with an organization specializing in mitigation
    defense.
    Dr. Dougherty diagnosed Floyd with ADHD and a
    mixed personality disorder with borderline paranoid and
    depressive features. He also discussed the “prenatal stage”
    of Floyd’s development, and commented that his mother
    “drank alcohol, and she used drugs during her pregnancy,”
    including “during the first trimester.” In rebuttal, the
    prosecution called Dr. Louis Mortillaro, a psychologist with
    a clinical neuropsychology certificate, who had briefly
    examined Floyd and reached conclusions similar to
    Dr. Schmidt’s based on Dr. Schmidt’s testing. Abreu
    painted a detailed picture of Floyd’s life, drawing on many
    of the same facts that Dr. Paul’s report had mentioned. He
    particularly noted Floyd’s mother’s heavy drinking,
    including during her pregnancies.
    During closing arguments, defense counsel urged the
    jury to refrain from finding that a death sentence was
    warranted. The mitigating factors defense counsel relied on
    FLOYD V. FILSON                       11
    in closing included Floyd’s difficult childhood, his alcohol
    and substance abuse, his stressful military service, his
    ADD/ADHD, and his mother’s substance abuse while she
    was pregnant with him.
    After three days of deliberation, the jury sentenced Floyd
    to death. It found that all three statutory aggravating factors
    were present and that they outweighed Floyd’s mitigating
    evidence.
    C.
    New counsel represented Floyd on his direct appeal,
    which the Nevada Supreme Court denied. Floyd v. State,
    
    42 P.3d 249
    (Nev. 2002) (per curiam). The U.S. Supreme
    Court then denied certiorari. Floyd v. Nevada, 
    537 U.S. 1196
    (2003). Floyd filed a state petition for a writ of habeas
    corpus a little over a year later. The state trial court denied
    the petition on the merits, and the Nevada Supreme Court
    affirmed. Floyd v. State, No. 44868, 2006 Nev. LEXIS 851
    (Nev. Feb. 16, 2006).
    Floyd then filed a pro se habeas petition in the U.S.
    District Court for the District of Nevada. See 28 U.S.C.
    § 2254(a). The federal public defender was appointed as
    counsel and filed an amended petition with new allegations,
    including alleged ineffective assistance by Floyd’s trial
    counsel. The district court agreed with the State that Floyd
    had not exhausted these new claims in state court and stayed
    the federal proceedings so he could do so.
    Floyd filed a second state habeas petition that included
    the new claims of ineffective assistance of trial counsel. The
    state trial court denied this petition on the merits and as
    untimely filed. The Nevada Supreme Court affirmed,
    holding that Floyd’s second petition was untimely and
    12                    FLOYD V. FILSON
    successive. Floyd v. State, No. 51409, 
    2010 WL 4675234
    (Nev. Nov. 17, 2010).
    The federal district court then lifted the stay and
    reopened Floyd’s habeas proceedings. It ultimately granted
    in part the State’s motion to dismiss, concluding that Floyd’s
    new claims that the Nevada Supreme Court had denied as
    untimely—including his new ineffective assistance of trial
    counsel claims—were procedurally defaulted, and that
    Floyd had not shown cause and prejudice for failing to raise
    his ineffective assistance of trial counsel claims in his first
    petition. See Coleman v. Thompson, 
    501 U.S. 722
    , 750
    (1991). The district court went on to deny Floyd’s remaining
    claims on the merits, but it issued a certificate of
    appealability as to several issues, including whether Floyd
    could show cause and prejudice for the default of his
    ineffective assistance of trial counsel claims.
    Floyd appealed, pressing each of the certified issues and
    also arguing that we should expand the certificate of
    appealability to encompass two more. We evaluate each of
    his arguments in turn.
    II.
    We review a district court’s denial of habeas corpus de
    novo. Robinson v. Ignacio, 
    360 F.3d 1044
    , 1055 (9th Cir.
    2004).
    The Antiterrorism and Effective Death Penalty Act
    (“AEDPA”) applies to Floyd’s habeas petition. Under
    AEDPA, we may grant Floyd relief only if the Nevada
    Supreme Court’s rejection of his claims “(1) was contrary to
    or involved an unreasonable application of clearly
    established federal law, or (2) was based on an unreasonable
    determination of the facts.” Davis v. Ayala, 
    135 S. Ct. 2187
    ,
    FLOYD V. FILSON                       13
    2198 (2015). “[C]learly established federal law” in this
    context refers to law “as determined by the Supreme Court.”
    28 U.S.C. § 2254(d)(1). “Although an appellate panel may
    . . . look to circuit precedent to ascertain whether it has
    already held that the particular point in issue is clearly
    established by Supreme Court precedent,” that precedent
    cannot “refine or sharpen a general principle of Supreme
    Court jurisprudence into a specific legal rule that th[e] Court
    has not announced.” Marshall v. Rodgers, 
    569 U.S. 58
    , 64
    (2013) (per curiam).
    III.
    Floyd asserts numerous claims of ineffective assistance
    of trial counsel. He raised most of these claims for the first
    time in his second state petition, prompting the Nevada
    Supreme Court to deny them as untimely and successive.
    Floyd v. State, No. 51409, 
    2010 WL 4675234
    , at *1 (Nev.
    Nov. 17, 2010). The Nevada Supreme Court held that the
    ineffective assistance of counsel claims raised for the first
    time in Floyd’s second state habeas petition were
    procedurally barred under section 34.726 of the Nevada
    Revised Statutes, which states that absent “good cause
    shown for delay, a petition that challenges the validity of a
    judgment or sentence must be filed within 1 year” after
    conviction or remittitur of any denied appeal “taken from the
    judgment.” Nev. Rev. Stat. § 34.726(1).
    Unless a petitioner can show “cause and prejudice,”
    federal courts in habeas actions will not consider claims
    decided in state court on a state law ground that is
    independent of any federal question and adequate to support
    the state court’s judgment. Coleman v. Thompson, 
    501 U.S. 722
    , 750 (1991). Floyd and the State disagree about whether
    section 34.726, as applied in his case, is adequate to bar
    14                        FLOYD V. FILSON
    federal review. 1 Floyd contends that when he filed his
    second state habeas petition in 2007, Nevada did not clearly
    and consistently apply section 34.726 to bar successive
    petitions alleging ineffective assistance of counsel in capital
    cases. He further argues that, even if the state law is
    adequate, he can establish cause and prejudice under
    Martinez v. Ryan, 
    566 U.S. 1
    (2012), based on ineffective
    assistance of initial state habeas counsel in failing to raise
    claims of ineffective assistance of trial counsel.
    Given that Floyd’s underlying ineffective assistance of
    trial counsel claims lack merit, we need not resolve whether
    the state law is adequate or, if it is, whether Floyd can
    overcome his procedural default and obtain federal review
    of the merits of his ineffective assistance claims. 2 See
    Franklin v. Johnson, 
    290 F.3d 1223
    , 1232 (9th Cir. 2002).
    Even if we held in Floyd’s favor on either of those questions
    and thus reached the merits of Floyd’s ineffective assistance
    1
    The Nevada Supreme Court also held that Floyd’s new claims were
    barred by section 34.810 of the Nevada Revised Statutes, which requires
    dismissal of claims that could have been raised in an earlier proceeding.
    Nev. Rev. Stat. § 34.810(1)(b)(3). On appeal, the State does not contest
    the district court’s determination that this application of section 34.810
    was inadequate, and so it does not bar federal review, because the rule
    was not consistently applied at the time of Floyd’s purported default.
    2
    The arguments in Floyd’s opening and reply briefs regarding
    section 34.726 of the Nevada Revised Statutes address the same
    ineffective assistance of counsel claims as do his Martinez arguments.
    In Floyd’s petition for rehearing, he argues that we should reach other
    constitutional claims that were also procedurally defaulted by section
    34.726. Floyd forfeited any such argument by failing to present it in his
    opening brief. See Arpin v. Santa Clara Valley Transp. Agency, 
    261 F.3d 912
    , 919 (9th Cir. 2001).
    FLOYD V. FILSON                            15
    of trial counsel claims, we would affirm the district court’s
    denial of relief. 3
    A.
    To succeed on an ineffective assistance of counsel claim,
    Floyd must show that his counsel’s performance “fell below
    an objective standard of reasonableness,” and that, if so,
    there is “a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would
    have been different.” Strickland v. Washington, 
    466 U.S. 668
    , 688, 694 (1984). With respect to the prejudice
    requirement, the Supreme Court has cautioned that “[t]he
    likelihood of a different result must be substantial, not just
    conceivable.” Harrington v. Richter, 
    562 U.S. 86
    , 112
    (2011). To determine the risk of such prejudice at the
    penalty phase of a capital trial, we consider whether it is
    reasonably probable that the jury otherwise “would have
    concluded that the balance of aggravating and mitigating
    circumstances did not warrant death” in light of “the totality
    of the evidence” against the petitioner. 
    Strickland, 466 U.S. at 695
    .
    B.
    Floyd’s primary ineffective assistance of trial counsel
    claim is that his trial counsel failed to investigate and present
    mitigation evidence showing that Floyd suffers from fetal
    alcohol spectrum disorder (“FASD”) as a result of his
    mother’s alcohol consumption while he was in utero. In
    3
    Nor is a remand to the district court for further evidentiary
    development appropriate because only “a habeas petitioner who asserts
    a colorable claim to relief . . . is entitled to an evidentiary hearing.”
    Siripongs v. Calderon, 
    35 F.3d 1308
    , 1310 (9th Cir. 1994) (emphasis
    added).
    16                    FLOYD V. FILSON
    support of this claim, Floyd offers a report from FASD
    expert Dr. Natalie Novick Brown. After reviewing the trial
    court record and other experts’ examinations of Floyd, Dr.
    Brown concluded that Floyd suffered from FASD and that
    the disorder could explain his actions on the day of the
    shooting. Floyd argues it is reasonably probable that had
    jurors been presented with evidence of FASD and its effects,
    they would have spared him a death sentence. Floyd
    acknowledges that trial counsel consulted seven experts,
    none of whom diagnosed Floyd with FASD, but he contends
    that those experts were inadequately prepared and lacked the
    expertise to present proper mitigating evidence regarding
    FASD.
    We need not resolve whether Floyd’s counsel’s
    performance was deficient in failing to present expert
    testimony that Floyd suffers from FASD. Even assuming it
    was, there is no reasonable probability that, had the jury
    heard from an FASD expert, it would have concluded that
    mitigating factors outweighed aggravating factors such that
    Floyd did not deserve a death sentence.
    The State presented an extremely weighty set of
    aggravating factors at sentencing. First, the State charged
    that Floyd “created a great risk of death to more than one
    person by means of a weapon, device or course of action
    which would normally be hazardous to the lives of more than
    one person.” Nev. Rev. Stat. § 200.033(3). Second, it
    alleged that Floyd killed more than one person (indeed, four)
    during the course of the offense that led to his conviction.
    See 
    id. § 200.033(12).
    Third, it alleged that the killings were
    at random and without apparent motive, because Floyd “just
    went to a place where he knew 18 people would be and shot
    everybody he could see.” See 
    id. § 200.033(9).
    The jury
    FLOYD V. FILSON                      17
    unanimously found that all three aggravating circumstances
    existed with regard to all four victims.
    In response, Floyd’s counsel emphasized Floyd’s
    developmental problems and emotional instability, issues
    exacerbated by his early life experiences and military
    service. Counsel’s mitigation arguments included multiple
    references to Floyd’s mother’s drinking while Floyd was in
    utero—a point that both mitigation consultant Abreu and
    Dr. Dougherty emphasized as well.               Counsel and
    Dr. Dougherty both explicitly opined that Floyd’s mother’s
    substance abuse might be to blame for Floyd’s mental
    condition. All in all, Floyd’s counsel argued that Floyd acted
    “under the influence of extreme mental or emotional
    disturbance,” and that he “suffer[ed] from the effects, early
    effects of his mother’s drinking, her ingested alcohol, drugs
    early on in her pregnancy.”
    Consistent with these defense arguments, the mitigation
    instructions submitted to the jury included that Floyd’s
    “[m]other use[d] alcohol and drugs during early pregnancy,”
    that Floyd had been born prematurely, that the murders were
    committed while Floyd was under the influence of
    “[e]xtreme [m]ental or [e]motional [d]isturbance,” and that
    Floyd had been “[i]nsufficiently [t]reated for ADHD [and]
    other [e]motional-[b]ehavioral [p]roblems including
    [d]epression.” Maternal alcohol and drug use was the first
    mitigating factor on the list.
    Given the defense’s focus on Floyd’s mother’s drinking
    during pregnancy and its effects, testimony by an FASD
    expert would likely not have changed any juror’s balancing
    of mitigating versus aggravating circumstances. For Floyd
    to have been prejudiced by the lack of testimony by an
    FASD expert, at least one juror would have had to have
    considered a formal FASD diagnosis more severe and
    18                   FLOYD V. FILSON
    debilitating than ADD/ADHD and Floyd’s other
    developmental problems, which the defense had suggested
    included effects of his mother’s drinking and drug use during
    pregnancy, but without using FASD terminology. In other
    words, at least one juror would have had to view a formal
    FASD diagnosis as a weightier mitigating factor than those
    presented. And that juror would have had to have placed so
    much additional weight on the FASD defense as to cause the
    mitigating circumstances to outweigh the State’s significant
    aggravating evidence, even though they did not on the record
    before the jury. Both the limited additional contribution of
    the FASD mitigating factor as compared with the mitigation
    evidence presented and the especially shocking nature of
    Floyd’s crime, during which he killed multiple unarmed
    people at close range, without provocation, and in their
    workplace, makes that switch in outcome unlikely. Given
    that the jury already had evidence before it that Floyd
    suffered from some developmental problems and that his
    issues might have been related to his mother’s alcohol use
    during pregnancy, and given the extreme aggravating
    circumstances, it seems very unlikely—and so not
    reasonably probable—that any juror would have had these
    reactions.
    This conclusion comports with our previous holdings
    that a capital petitioner is not necessarily prejudiced when
    counsel fails to introduce evidence that differs somewhat in
    degree, but not type, from that presented in mitigation. In
    Bible v. Ryan, 
    571 F.3d 860
    (9th Cir. 2009), for instance, we
    held that a capital petitioner was not prejudiced by his
    attorney’s failure to introduce medical evidence that he
    suffered from neurological damage. 
    Id. at 870.
    We reasoned
    that because counsel presented evidence that the petitioner
    might have had brain damage from persistent drug and
    alcohol abuse, along with evidence of childhood events that
    FLOYD V. FILSON                        19
    could have led to brain damage, medical evidence of
    neurological damage would have been different only in
    degree. 
    Id. at 871.
    Floyd’s FASD argument resembles that
    of the petitioner in Bible—the jury heard the evidence that
    would have supported the FASD diagnosis as well as the
    implication that the evidence explained Floyd’s behavior.
    And like the petitioner in Bible, who “murdered a nine-year-
    old child in an especially cruel manner,” Floyd “has a
    significant amount of aggravating circumstances that he
    would need to overcome,” 
    id. at 872,
    making it unlikely that
    the jury would have imposed a different sentence based on
    mitigating evidence that differed only in degree from that
    which Floyd presented at trial.
    Floyd urges us to follow the Fourth Circuit’s decision in
    Williams v. Stirling, 
    914 F.3d 302
    (4th Cir. 2019), petition
    for cert. docketed, No. 18-1495 (May 31, 2019), in which
    that court affirmed a district court’s conclusion that a capital
    petitioner’s counsel had performed constitutionally
    deficiently in failing to present evidence of fetal alcohol
    syndrome in mitigation, and that the petitioner was
    prejudiced by this failure. 
    Id. at 319.
    In some cases, FASD
    evidence might be sufficiently “different from . . . other
    evidence of mental illness and behavioral issues” to raise a
    reasonable probability that a juror would not have imposed
    the death penalty had it been presented. 
    Id. at 318.
    But much
    distinguishes Floyd’s case from that of the petitioner in
    Williams. Floyd’s lawyers and experts explicitly argued that
    his mother’s alcohol use while she was pregnant led to his
    developmental problems in some form and therefore helped
    explain his actions, whereas trial counsel in Williams
    investigated the petitioner’s mother’s drinking “as evidence
    of [the petitioner’s] difficult childhood, not of [fetal alcohol-
    related disorders]” and never offered evidence to the jury
    that the drinking could have caused Williams’s cognitive
    20                       FLOYD V. FILSON
    issues. 
    Id. at 309.
    The State submitted against Floyd three
    aggravating factors, all involving a multiple-victim
    shooting, whereas in Williams “the State only presented one
    aggravating factor: that the [single] murder occurred in the
    commission of a kidnapping.” 
    Id. at 318.
    The jury that
    imposed the death sentence on Floyd did not report difficulty
    reaching a verdict, whereas in Williams “the jury sent a note
    to the trial court stating it was deadlocked nine to three in
    favor of death.” 
    Id. at 308.
    In short, the petitioner in
    Williams was prejudiced because his lawyers presented a
    much weaker-than-available mitigation argument that was
    insufficient to overcome an also weak aggravating argument
    that clearly troubled some jurors. 4 That was not the situation
    here. We also note that our conclusion is consistent with the
    Fifth Circuit’s in Trevino v. Davis, 
    861 F.3d 545
    (5th Cir.
    2017), cert. denied, 
    138 S. Ct. 1793
    (2018), in which that
    court rejected an ineffective assistance of counsel claim
    relating to the failure to present mitigating evidence of an
    FASD diagnosis because the evidence would have been
    outweighed by what the court viewed as very substantial
    aggravating evidence. 
    Id. at 549–51.
    Floyd further argues that counsel provided deficient
    performance in the penalty phase by failing to call Dr. Paul,
    the consulting military and mental health expert, to testify
    about Floyd’s military service, early life, and other matters.
    We are skeptical that declining to call this expert was
    constitutionally deficient. See Hinton v. Alabama, 
    571 U.S. 4
           Floyd’s postconviction investigator interviewed one juror who
    stated that evidence of a “serious mental illness” would have “weighed
    heavily” in her sentencing-phase deliberations. It does not follow that
    this juror would have deemed FASD a sufficiently severe condition to
    mitigate Floyd’s offenses, especially because she appears to have
    considered insufficient the existing evidence of potential ties between
    maternal alcohol use and Floyd’s state of mind.
    FLOYD V. FILSON                        21
    263, 275 (2014) (“The selection of an expert witness is a
    paradigmatic example of the type of ‘strategic choic[e]’ that,
    when made ‘after thorough investigation of [the] law and
    facts,’ is ‘virtually unchallengeable.’” (alterations in
    original) (quoting 
    Strickland, 466 U.S. at 690
    )). Even
    assuming that counsel’s choice in this regard was deficient,
    it did not prejudice Floyd. Like Floyd’s FASD evidence,
    Dr. Paul’s testimony would have been largely cumulative of
    the evidence of Floyd’s substance abuse and mental health
    struggles actually presented at trial, and the testimony
    therefore would have done little to offset the weighty
    aggravating evidence against Floyd.
    C.
    Floyd argues that his trial counsel’s conduct during jury
    selection amounted to ineffective assistance of counsel. We
    disagree. Much of his argument supposes that various
    decisions by the trial court prejudiced him during jury
    selection, that those decisions were erroneous, and that his
    counsel was ineffective in failing to object to or otherwise
    remedy these errors. But most of the trial court decisions he
    challenges were not errors at all, and with respect to any that
    may have been errors, we conclude that his counsel acted
    within the bounds of professional competence in responding
    to the court’s decisions.
    For example, Floyd contends that his counsel erred in
    failing to successfully object to the trial court’s dismissal of
    two prospective jurors. Floyd first argues that the trial court
    improperly or pretextually removed one venireperson from
    the venire for cause. Even assuming that the trial court erred
    in doing so, this does not show that Floyd’s counsel was
    ineffective. On the contrary, Floyd’s counsel attempted to
    rehabilitate the prospective jurors who had expressed
    hesitation about the death penalty, including the juror in
    22                     FLOYD V. FILSON
    question, and to allay the court’s concerns. After the juror
    stated that she had scruples about the death penalty, counsel
    elicited a response from her that she “would have to follow
    the law.” But she then admitted that she would “invariably
    in all cases give a sentence less than death,” and the trial
    court dismissed her for cause.
    Floyd next argues that the court improperly dismissed a
    second venireperson for improper concerns about language
    ability. After it came to light that this prospective juror was
    not a native English speaker, defense counsel questioned
    him about his degree from an English-speaking university.
    Nonetheless, the court concluded that the juror’s English
    fluency was insufficient, stating that it could “not take a
    chance where the stakes [were] so high to both sides.”
    That the trial court dismissed these two potential jurors
    does not mean that counsel’s attempts to rehabilitate them
    were deficient and that competent counsel would have
    sufficiently rehabilitated the two to keep them on the jury,
    especially because the court appears to have had legitimate
    concerns about both.
    Floyd similarly argues that because the trial court refused
    to excuse allegedly biased venirepersons for cause, counsel
    wasted peremptory challenges on striking those individuals
    from the jury pool. It appears, however, that the trial court
    made no error by refusing to dismiss the prospective jurors
    in question. One of them, for instance, retracted her
    statement that she could not consider a sentence of life with
    parole after the trial court clarified that she was only required
    to “at least consider” it. And again, even if the trial court
    erred, Floyd’s counsel’s reaction was within the realm of
    permissible strategic choices: counsel chose between the two
    (admittedly unattractive) options of spending a peremptory
    challenge or taking the risk of seating a juror that counsel
    FLOYD V. FILSON                       23
    had concluded would be unfavorable to Floyd. In other
    words, Floyd’s counsel was not ineffective for attempting to
    make the best of the trial court’s alleged errors.
    Finally, Floyd contends in general terms that the voir dire
    format, in which the prosecution questioned all prospective
    jurors before the defense was permitted to question any, was
    prejudicial or caused his counsel to be ineffective. We
    struggle to discern precisely Floyd’s theory of deficient
    performance or of prejudice. Even assuming that the trial
    court’s format was prejudicial, counsel did object to it by
    moving for “attorney conducted, sequestered individual voir
    dire.” Trial counsel’s attempt to challenge the trial court’s
    procedures shows diligence, not ineffectiveness.
    Moreover, Floyd’s lawyers had the opportunity to
    individually question numerous prospective jurors, eliciting
    information about their views on topics including the death
    penalty, psychology, alcoholism, and how they would
    behave in a jury room. Counsel’s decision not to further
    question each venireperson about his or her exposure to
    media coverage of the shooting and ability to consider
    mitigating evidence was not deficient. The questionnaires
    that every prospective juror completed asked about these
    issues, and the trial court asked all prospective jurors if
    “there [is] anybody among you who feels unable to set aside
    what they’ve read, seen, or heard” about the case. Floyd’s
    counsel were entitled to rely on those responses, and their
    mere failure to inquire further does not render their
    performance deficient. See Fields v. Woodford, 
    309 F.3d 1095
    , 1108 (9th Cir. 2002) (“[W]e cannot say that failure to
    inquire beyond the court’s voir dire was outside the range of
    reasonable strategic choice or that it would have affected the
    outcome.”); Wilson v. Henry, 
    185 F.3d 986
    , 991 (9th Cir.
    1999) (rejecting argument “that trial counsel rendered
    24                   FLOYD V. FILSON
    ineffective assistance by failing to focus on his client’s
    criminal history during voir dire to discover potential juror
    prejudice and determine whether jurors could follow
    limiting instructions on such a history”).
    D.
    Floyd’s counsel was not ineffective in cross-examining
    the State’s penalty-phase psychological expert witness,
    Dr. Mortillaro. Dr. Mortillaro reviewed the guilt-phase
    record materials and other psychological experts’ reports
    and data, including Dr. Schmidt’s unfavorable test results
    that the defense provided the prosecution in discovery before
    it un-endorsed Dr. Schmidt. Dr. Mortillaro also interviewed
    Floyd himself. Based on these materials, Dr. Mortillaro
    opined that—contrary to defense expert Dr. Dougherty’s
    testimony—Floyd had not suffered brain damage, was of
    average IQ, did not suffer delusions, could tell right from
    wrong, and was not mentally ill.
    On cross-examination, defense counsel elicited
    testimony from Dr. Mortillaro that he had only interviewed
    Floyd for about ninety minutes and that he had only received
    Dr. Dougherty’s report the day before. Counsel also
    attempted to undermine Dr. Mortillaro’s reliance on Floyd’s
    scores from tests administered by Dr. Schmidt as the basis
    for Dr. Mortillaro’s conclusion, arguing that the results
    should have been thrown out entirely. Counsel succeeded in
    getting Dr. Mortillaro to admit that any individual
    psychologist has significant discretion in deciding whether
    the test score was valid enough to allow reliance on the raw
    data. Counsel then pointed out that Dr. Dougherty had
    looked at the same data and diagnosed Floyd with
    dissociative personality disorder rather than borderline
    personality disorder, and he elicited an admission from
    FLOYD V. FILSON                      25
    Dr. Mortillaro that individuals with borderline personality
    disorder may show dissociative symptoms.
    Finally, counsel attempted to undermine Dr. Mortillaro’s
    minimization of Floyd’s ADD/ADHD. Counsel presented
    Dr. Mortillaro with his own prior testimony from another
    matter in which Dr. Mortillaro had stated “that 70 percent of
    those with attention deficit [disorder] still have it as an
    adult.” Dr. Mortillaro also conceded that even if a patient
    were to “outgrow” ADD or ADHD, the fallout from the
    childhood disorder “would stay with them.”
    Floyd generally faults counsel for choosing to rely on
    cross-examination of Dr. Mortillaro rather than calling
    Floyd’s other consulting expert, Dr. Kinsora, to rebut
    Dr. Mortillaro’s testimony. The caselaw does not support
    Floyd’s argument. In prior cases in which we and other
    circuits have recognized constitutionally deficient cross-
    examination, there were glaring failures to ask even basic
    questions, not—as here—a strategic choice between one
    means of undermining the witness and another. See, e.g.,
    Reynoso v. Giurbino, 
    462 F.3d 1099
    , 1112–13 (9th Cir.
    2006) (counsel ineffective for failing to ask any questions
    about a $25,000 reward that might have motivated key
    witnesses’ testimony against the defendant); Higgins v.
    Renico, 
    470 F.3d 624
    , 633 (6th Cir. 2006) (ineffective
    assistance where counsel did not cross-examine key
    prosecution witness at all because he felt unprepared to do
    so, even though he “had plenty of ammunition with which to
    impeach [the witness’s] testimony”).
    Floyd does not contend that counsel failed altogether to
    cross-examine Dr. Mortillaro about key issues, but rather
    that he failed to do so in a manner that Floyd now believes
    would have been more effective. But Floyd’s counsel did
    attempt to impeach Dr. Mortillaro’s testimony, including
    26                   FLOYD V. FILSON
    with information counsel obtained from experts he had
    hired. This was not constitutionally deficient performance.
    E.
    Floyd argues that his trial counsel was ineffective for
    failing to object to various jury instructions. Many of the
    arguments against the instructions Floyd now challenges
    would not have been legally supported or would have been
    foreclosed by then-governing law, so counsel was not
    ineffective for failing to raise them.
    First, we disagree with Floyd that the jury should have
    been instructed at the penalty phase that it could impose a
    death sentence only if it found that aggravating factors
    outweighed mitigating factors beyond a reasonable doubt.
    Floyd contends that the Supreme Court’s decision in
    Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), required that
    the jury instructions include such a statement about burden
    of proof. The Court in Apprendi held that, subject to an
    exception for prior convictions, “any fact that increases the
    penalty for a crime beyond the prescribed statutory
    maximum must be submitted to a jury, and proved beyond a
    reasonable doubt.” 
    Id. at 490
    (emphasis added). Floyd
    characterizes the balance of aggravating and mitigating
    circumstances as a “fact” governed by this rule.
    The federal courts of appeals that have considered this
    argument have uniformly rejected it, holding that a jury’s
    balancing inquiry in a capital case is a subjective and moral
    one, not a factual one. See United States v. Gabrion,
    
    719 F.3d 511
    , 532–33 (6th Cir. 2013) (en banc); United
    States v. Runyon, 
    707 F.3d 475
    , 516 (4th Cir. 2013); United
    States v. Barrett, 
    496 F.3d 1079
    , 1107–08 (10th Cir. 2007);
    United States v. Fields, 
    483 F.3d 313
    , 346 (5th Cir. 2007);
    United States v. Sampson, 
    486 F.3d 13
    , 31–32 (1st Cir.
    FLOYD V. FILSON                               27
    2007); United States v. Purkey, 
    428 F.3d 738
    , 749–50
    (8th Cir. 2005). 5 Floyd’s proposed instruction thus hardly
    flowed naturally from Apprendi, which did not involve a
    capital case and was decided just months before Floyd’s trial
    began. Floyd’s counsel was not deficient for failing to make
    an argument that was untested, an extension of newly minted
    law, and (judging from the weight of subsequent authority)
    likely to fail. See Engle v. Isaac, 
    456 U.S. 107
    , 134 (1982)
    (“[T]he Constitution guarantees criminal defendants only a
    fair trial and a competent attorney. It does not insure that
    defense counsel will recognize and raise every conceivable
    constitutional claim.”).
    Second, Floyd’s counsel was not ineffective for failing
    to challenge on constitutional grounds the penalty-phase jury
    instructions for the aggravating circumstance that “[t]he
    murder was committed upon one or more persons at random
    and without apparent motive.” At the time of Floyd’s trial,
    the Nevada Supreme Court had already rejected an identical
    constitutional challenge to this aggravating factor. See
    Geary v. State, 
    930 P.2d 719
    , 727 (Nev. 1996). Counsel was
    not ineffective for failing to raise this argument.
    5
    We have never directly ruled on this question—nor do we today—
    but we have at least twice expressed our skepticism of Floyd’s view. See
    Ybarra v. Filson, 
    869 F.3d 1016
    , 1030–31 (9th Cir. 2017); United States
    v. Mitchell, 
    502 F.3d 931
    , 993–94 (9th Cir. 2007). Floyd also argues that
    counsel should have requested a reasonable doubt instruction based on
    the Supreme Court’s decision in Ring v. Arizona, 
    536 U.S. 584
    (2002),
    which applied the principle from Apprendi to hold that every sentence-
    enhancing fact, “no matter how the State labels it,” must be found beyond
    reasonable doubt. 
    Id. at 602.
    Ring was decided two years after Floyd’s
    trial. In addition, Ybarra and Mitchell, as well as other circuits’ decisions
    rejecting that argument, post-date Ring and thus defeat this version of
    Floyd’s claim as well.
    28                    FLOYD V. FILSON
    Third, no Strickland violation occurred when Floyd’s
    counsel declined to challenge a guilt-phase jury instruction
    that premeditation, an element of first-degree murder, “may
    be as instantaneous as successive thoughts of the mind.”
    Even assuming that this instruction was improper and that
    counsel’s decision not to challenge it was unreasonable, no
    prejudice resulted from use of the instruction. The jury had
    before it significant evidence that Floyd’s premeditation
    occurred in more than an instant. Among other things, he
    told his sexual assault victim that he planned to kill the first
    nineteen people he saw, then walked for fifteen minutes
    carrying the shotgun that he used to perpetrate the murders.
    Even if counsel had succeeded in striking the “instantaneous
    premeditation” instruction, there is no reasonable probability
    that the jury would have found a lack of premeditation as a
    result. See 
    Strickland, 466 U.S. at 694
    .
    F.
    Floyd’s remaining claim of ineffective assistance—that
    his trial counsel should have objected to Nevada’s use of the
    “great risk of death” aggravating circumstance—was raised
    and adjudicated in state court, so we review it under
    AEDPA’s deferential standards. The claim fails under those
    standards.
    Floyd contends that his trial counsel should have
    objected to this aggravating circumstance as duplicative of
    another aggravating circumstance—the “multiple murders”
    factor—that the State charged. See Nev. Rev. Stat.
    § 200.033(3). Initial post-conviction counsel presented a
    nearly identical argument 6 to the Nevada Supreme Court,
    6
    To the extent Floyd is now making a new argument that this
    aggravating circumstance was impermissibly vague, we hold that
    FLOYD V. FILSON                            29
    which rejected it on the merits. The Nevada Supreme Court
    held that the two aggravators were based on different facts
    and served different state interests. It reasoned that “[o]ne is
    directed against indiscriminately dangerous conduct by a
    murderer, regardless of whether it causes more than one
    death; the other is directed against murderers who kill more
    than one victim, regardless of whether their conduct was
    indiscriminate or precise.” Floyd v. State, No. 44868, 2006
    Nev. LEXIS 851 (Nev. Feb. 16, 2006). Floyd argues in a
    conclusory fashion that this decision was “arbitrary and
    capricious” such that it was contrary to or an unreasonable
    application of clearly established federal law, but he cites no
    controlling Supreme Court precedent relevant to this
    argument. His briefing focuses entirely on the legislative
    history of Nevada’s aggravating factors and what he
    contends are two conflicting strains of doctrine in that state’s
    jurisprudence on the “great risk of death factor.” These state
    law issues are not grounds for federal habeas relief, and we
    are aware of no clearly established federal law that the
    Nevada Supreme Court’s determination might have
    contravened. See 28 U.S.C. § 2254(d); Williams v. Taylor,
    
    529 U.S. 362
    , 412 (2000) (holding that “clearly established
    Federal law” refers only to U.S. Supreme Court decisions at
    time of alleged violation).
    argument lacks merit. “[N]ot every ambiguity, inconsistency, or
    deficiency in a jury instruction rises to the level of a due process
    violation.” Middleton v. McNeil, 
    541 U.S. 433
    , 437 (2004) (per curiam).
    To the extent that Floyd is making a new argument in his reply brief that
    substantial evidence did not support this jury instruction, we hold that
    Floyd forfeited any such argument by failing to articulate it in his
    opening brief. See 
    Arpin, 261 F.3d at 919
    .
    30                        FLOYD V. FILSON
    IV.
    Floyd argues that his constitutional rights were violated
    when the State’s expert, Dr. Mortillaro, made reference
    during his testimony to test results that he had obtained from
    Floyd’s expert, Dr. Schmidt. The Nevada Supreme Court’s
    conclusion on direct appeal that no constitutional error
    occurred, Floyd v. State, 
    42 P.3d 249
    , 258–59 (Nev. 2002)
    (per curiam), was not contrary to or an unreasonable
    application of controlling Supreme Court caselaw.
    Floyd argues at length that the Nevada Supreme Court
    wrongly determined that Dr. Schmidt’s report was not
    privileged work product. 7 Although the Nevada Supreme
    7
    Floyd argues that his counsel were ordered to turn over
    Dr. Schmidt’s report “before defense counsel had even seen the report of
    their expert.” That assertion is misleading. The court ordered the
    defense to provide a copy of Dr. Schmidt’s report “before the close of
    business on June 15, 2000.” Dr. Schmidt’s report is dated June 13, 2000.
    In his declaration, Floyd’s counsel describes a phone call with Dr.
    Schmidt on June 14 where Dr. Schmidt informed counsel that he was
    “unable to find any neurological basis for Mr. Floyd’s actions.” “Upon
    talking with Dr. Schmidt,” counsel “became skeptical about the quality
    of his testing and decided to hire Dr. Kinsora” to review Dr. Schmidt’s
    testing and analysis. So Floyd’s counsel knew basically what would be
    in Dr. Schmidt’s report before they turned it over, whether or not they
    had seen the actual report. Counsel had the opportunity to withdraw
    Dr. Schmidt as an expert before turning over his report, as they
    previously had done with Dr. Paul, but failed to do so. And Floyd’s
    counsel admits that there was “no strategic reason to turn over a report
    that [they] were not sure about using.” In light of this timeline, Floyd’s
    argument that the prosecution’s use of Dr. Schmidt’s data violated the
    work-product privilege might be more accurately framed as a result of a
    poor strategic choice on defense counsel’s part not to withdraw
    Dr. Schmidt as an expert, which could in turn be grounds for an
    ineffective assistance of counsel claim. See McClure v. Thompson,
    
    323 F.3d 1233
    , 1242–43 (9th Cir. 2003). But no such claim is before us.
    FLOYD V. FILSON                              31
    Court drew on federal authority in reaching that conclusion,
    Floyd “simply challenges the correctness of the state
    evidentiary rulings,” and “he has alleged no deprivation of
    federal rights” that could entitle him to relief. Gutierrez v.
    Griggs, 
    695 F.2d 1195
    , 1197 (9th Cir. 1983). He similarly
    argues that the Nevada Supreme Court misapplied its own
    precedent, but a state court’s misreading of state law is not a
    ground for federal habeas relief.
    Ake v. Oklahoma, 
    470 U.S. 68
    (1985), does not support
    Floyd’s challenge to the use of Schmidt’s report either. The
    Supreme Court in Ake held that “due process requires access
    to a psychiatric examination on relevant issues, to the
    testimony of the psychiatrist, and to assistance in preparation
    at the sentencing phase” of a capital case. 
    Id. at 84.
    Floyd
    received ample psychiatric evaluations and assistance prior
    to sentencing, so Ake has little bearing here.
    Floyd further contends that our extension of Ake in Smith
    v. McCormick, 
    914 F.2d 1153
    , 1158–59 (9th Cir. 1990),
    should have compelled the Nevada Supreme Court to reach
    a different result. In Smith, we held that a capital defendant’s
    due process rights 8 were violated when, instead of
    permitting an independent psychiatric evaluation, the trial
    court ordered a psychiatrist to examine the defendant and
    8
    Floyd asserted in passing in his opening brief before this court that
    the disclosure and use of Dr. Schmidt’s report violated his Fifth
    Amendment rights against self-incrimination but provided no developed
    argument supporting that assertion. We therefore express no view on
    that issue. See e.g., Greenwood v. FAA, 
    28 F.3d 971
    , 977 (9th Cir. 1994)
    (“We review only issues which are argued specifically and distinctly in
    a party’s opening brief. We will not manufacture arguments for an
    appellant, and a bare assertion does not preserve a claim, particularly
    when, as here, a host of other issues are presented for review.” (internal
    citations omitted)).
    32                    FLOYD V. FILSON
    report directly to the court at a resentencing hearing. 
    Id. at 1159–60.
    We reasoned that the petitioner’s “counsel was
    entitled to a confidential assessment of such an evaluation,
    and the strategic opportunity to pursue other, more
    favorable, arguments for mitigation.” 
    Id. at 1160.
    Floyd appears to argue that because, under Smith, a
    defendant is entitled to a confidential assessment of the state-
    provided psychiatric assessment and the chance to pursue
    other strategies, he was entitled to claw back a document that
    was disclosed in connection with designating an expert to
    testify after he reversed course and removed the expert from
    his witness list. The holding in Smith did not encompass
    what Floyd seeks here, so the Nevada Supreme Court did not
    act contrary to our precedent. And, in any event, Floyd’s
    proposed rule is not clearly established by any Supreme
    Court decision. Marshall v. Rodgers, 
    569 U.S. 58
    , 64 (2013)
    (per curiam).
    Indeed, the Supreme Court has held that mandatory
    disclosure schemes are permissible in criminal trials as long
    as they do not structurally disadvantage the defendant. See
    Wardius v. Oregon, 
    412 U.S. 470
    , 472 (1973) (“We hold that
    the Due Process Clause of the Fourteenth Amendment
    forbids enforcement of alibi rules unless reciprocal
    discovery rights are given to criminal defendants.”
    (emphasis added)).        Nevada provides for reciprocal
    discovery, as it did at the time of Floyd’s trial, so Wardius
    was not contravened here. See Nev. Rev. Stat. § 174.234
    (1999).
    FLOYD V. FILSON                                33
    V.
    Floyd next contends that the trial court violated his
    constitutional rights by failing to grant a change of venue. 9
    He argues that the district court erred when it rejected this
    claim in part on the ground that, of the 115 news articles
    Floyd submitted with his federal habeas petition to attempt
    to show that the jury was exposed to prejudicial pretrial
    publicity about his case, only three were in the record before
    the state courts. Relying on Cullen v. Pinholster, 
    563 U.S. 170
    (2011), the district court reasoned that AEDPA limited
    its review to those materials before the state courts that had
    rejected Floyd’s venue claim. See 
    id. at 185
    (“If a claim has
    been adjudicated on the merits by a state court, a federal
    habeas petitioner must overcome the limitation of
    § 2254(d)(1) on the record that was before that state court.”).
    The district court did not err. Floyd argues that, under
    Dickens v. Ryan, 
    740 F.3d 1302
    (9th Cir. 2014) (en banc),
    the district court misapplied Pinholster to bar consideration
    of his 112 new articles. Floyd’s reliance on Dickens is
    misplaced. In Dickens, we held that AEDPA (as interpreted
    in Pinholster) did not bar a federal court from considering
    new evidence introduced to support a Martinez motion
    alleging ineffective assistance of trial and postconviction
    counsel as cause and prejudice for a procedural default.
    
    Dickens, 740 F.3d at 1319
    –20. Here, by contrast, Floyd
    faults the district court for failing to consider new evidence
    9
    In Floyd’s opening brief, he asserts in a section heading that the
    district court also erred by failing to consider his claim that the trial court
    violated his rights by refusing to sever the sexual assault charges against
    him from the murder charges. But he does not actually argue this point
    or explain the alleged error, so we consider any such argument forfeited.
    See Arpin v. Santa Clara Valley Transp. Agency, 
    261 F.3d 912
    , 919
    (9th Cir. 2001).
    34                   FLOYD V. FILSON
    in the context of a change of venue claim decided on its
    merits in the state court and so reviewed under AEDPA
    deference. Floyd’s theory about how the Nevada Supreme
    Court erred has nothing to do with trial counsel’s
    performance and therefore does not implicate the Dickens
    rule.
    Because Floyd makes no argument beyond the district
    court’s refusal to consider these documents—which we
    conclude was not error—we need not consider whether the
    Nevada Supreme Court’s denial of Floyd’s venue claim was
    contrary to or unreasonably applied clearly established
    federal law.
    VI.
    Floyd argues, as he did on direct appeal, that the trial
    court violated his constitutional rights by permitting the
    mother of victim Thomas Darnell to testify extensively
    during the penalty phase about her son’s difficult life and
    previous experiences with violent crime. The Nevada
    Supreme Court held that parts of Nall’s testimony “exceeded
    the scope of appropriate victim impact testimony” and
    should not have been admitted under state evidentiary law,
    but that their admission did not unduly prejudice Floyd such
    that it rendered the proceeding fundamentally unfair. Floyd
    v. State, 
    42 P.3d 249
    , 262 (Nev. 2002) (per curiam). The
    Nevada Supreme Court’s rejection of this claim was not
    contrary to or an objectively unreasonable application of
    clearly established federal law. 28 U.S.C. § 2254(d).
    The prosecution called Mona Nall, Darnell’s mother, to
    offer victim impact testimony during the penalty phase of
    trial. Nall told the jury how Darnell had thrived in the face
    of serious learning and developmental disabilities, going on
    to form close relationships with his family and members of
    FLOYD V. FILSON                      35
    the community. She testified that “the hurt has gone so
    deep” for those affected by his death. Nall also recounted an
    incident years earlier in which Darnell and his family had
    been kidnapped by two men who held the family hostage and
    sexually assaulted Nall’s daughter. Defense counsel
    objected twice to this testimony and the trial court
    admonished the prosecution to “get to th[e] point.”
    The Nevada Supreme Court did not unreasonably apply
    the relevant clearly established federal law in rejecting
    Floyd’s claim that this testimony violated his due process
    rights. In Payne v. Tennessee, 
    501 U.S. 808
    (1991), the
    Supreme Court held that in a penalty-phase capital trial, “if
    the State chooses to permit the admission of victim impact
    evidence and prosecutorial argument on that subject, the
    Eighth Amendment erects no per se bar.” 
    Id. at 827.
    The
    Court added that “[i]n the event that evidence is introduced
    that is so unduly prejudicial that it renders the trial
    fundamentally unfair, the Due Process Clause of the
    Fourteenth Amendment provides a mechanism for relief.”
    
    Id. at 825
    (citing Darden v. Wainwright, 
    477 U.S. 168
    , 179–
    83 (1986)).
    Like the Nevada Supreme Court, we are troubled by the
    admission of some of Nall’s testimony. That court
    determined that although Payne did not necessarily bar
    Nall’s testimony about the hostage-taking and kidnapping
    incident, those parts of her testimony should not have been
    admitted under state evidentiary law because of its limited
    relevance and high risk of prejudice. We are additionally
    concerned about the propriety of Nall’s testimony about
    Darnell’s early life and developmental difficulties because
    of its limited relevance to Floyd’s impact on the victims (or
    on people close to and surviving them) and its potential risk
    of prejudice. Eliciting extensive testimony about a horrible
    36                    FLOYD V. FILSON
    crime that had nothing to do with the defendant risks
    inappropriately affecting jurors who might feel that the
    victim’s family should be vindicated for all of its tragedies,
    not just for the one caused by Floyd.
    Nevertheless, it was not unreasonable for the Nevada
    Supreme Court to conclude that the admission of Nall’s
    testimony did not render Floyd’s trial fundamentally unfair.
    Given the strength of the prosecution’s aggravating case
    against Floyd, it seems unlikely that the jury was
    substantially swayed by the irrelevant parts of Nall’s
    testimony. The same characteristics that made Nall’s
    testimony so objectionable—that it had nothing to do with
    Floyd’s crimes or, at times, with Floyd’s victims—could
    have diminished the testimony’s effect on the jury.
    The prosecutor indirectly referenced the irrelevant
    portions of Nall’s testimony in closing argument when he
    commented on “the tremendous tragedies . . . that Mona has
    suffered and had suffered with her son over the years, so
    many tragedies, so many hardships.” But this comment
    lacked detail and was in the context of a long description of
    the victim impact of Floyd’s crime, so the prosecution does
    not appear to have relied extensively on the improper
    testimony. In the face of the robust aggravating evidence
    that the State presented, the Nevada Supreme Court did not
    unreasonably apply clearly established Supreme Court law
    by holding that Floyd was not prejudiced by Nall’s statement
    or by the prosecutor’s references to it, so there was no due
    process violation. See 
    Payne, 501 U.S. at 825
    . For the same
    reasons, any error in permitting Nall’s testimony about
    Darnell’s early life was harmless as there is no evidence that
    the testimony had “substantial and injurious effect or
    influence in determining the jury’s verdict.” Brecht v.
    FLOYD V. FILSON                             37
    Abrahamson, 
    507 U.S. 619
    , 638 (1993) (quotation marks
    omitted).
    VII.
    Floyd challenges numerous statements made by the
    prosecution as misconduct amounting to constitutional
    error. 10 We agree that a subset of these statements was
    improper, but we hold that the impropriety is not a ground
    for habeas relief under the relevant standards of review.
    The due process clause provides the constitutional
    framework against which we evaluate Floyd’s claims of
    prosecutorial misconduct. “The relevant question” under
    clearly established law “is whether the prosecutors’
    comments ‘so infected the trial with unfairness as to make
    the resulting conviction a denial of due process.’” Darden
    v. Wainwright, 
    477 U.S. 168
    , 181 (1986) (quoting Donnelly
    v. DeChristoforo, 
    416 U.S. 637
    , 643 (1974)); see also Parker
    v. Matthews, 
    567 U.S. 37
    , 45 (2012) (per curiam) (holding
    that Darden provides relevant clearly established law on
    habeas review of claims that statements by prosecutors
    amounted to prosecutorial misconduct). In making that
    determination, courts look to various
    Darden factors—i.e., the weight of the
    evidence, the prominence of the comment in
    the context of the entire trial, whether the
    prosecution misstated the evidence, whether
    the judge instructed the jury to disregard the
    comment, whether the comment was invited
    by defense counsel in its summation and
    10
    The district court determined that Floyd had exhausted all of these
    claims, and the State does not challenge that ruling.
    38                    FLOYD V. FILSON
    whether defense counsel had an adequate
    opportunity to rebut the comment.
    Hein v. Sullivan, 
    601 F.3d 897
    , 914 (9th Cir. 2010). As the
    Supreme Court emphasized in Darden, “it is not enough that
    the prosecutors’ remarks were undesirable or even
    universally 
    condemned,” 477 U.S. at 181
    (citation omitted),
    because the effect on the trial as a whole needs to be
    evaluated in context. See United States v. Young, 
    470 U.S. 1
    , 17–20 (1985) (prosecutor’s exhortation that the jury “do
    its job” and statements of personal belief were improper, but
    they did not have prejudicial effect on the trial as a whole in
    light of the comments’ context and overwhelming evidence
    of guilt).
    A.
    In his direct appeal and first habeas petition, Floyd
    presented several claims that the prosecutor’s statements
    amounted to misconduct; we review those adjudicated
    claims under AEDPA. We agree with the Nevada Supreme
    Court that the prosecutor’s contention that Floyd had
    committed “the worst massacre in the history of Las Vegas”
    was improper. Floyd v. State, 
    42 P.3d 249
    , 260–61 (Nev.
    2002) (per curiam). That court’s further determination that
    the comment was harmless, 
    id. at 261,
    was not unreasonable.
    Although the Nevada Supreme Court cited the state’s
    codified harmless error doctrine, see Nev. Rev. Stat.
    § 178.598, and not Darden, its reasoning can also be
    understood as concluding that Floyd had not shown that the
    misconduct “so infected the trial with unfairness” as to work
    a denial of his due process rights. 
    Darden, 477 U.S. at 181
    (quotation marks omitted).
    This conclusion was not objectively unreasonable under
    the Darden factors. Although the “worst massacre”
    FLOYD V. FILSON                            39
    comment came late in the trial and was not invited by the
    defense, the weight of the evidence against Floyd and the
    fact that the comment was not egregiously inflammatory
    make the Nevada Supreme Court’s determination
    reasonable. In Darden, for instance, the prosecutor made a
    series of comments far more inflammatory than this one. 11
    The Supreme Court nonetheless held that those comments
    did not render the petitioner’s trial fundamentally unfair in
    light of the defense’s response and the strong evidence
    against the petitioner. 
    Id. at 180–83.
    And although the trial
    court here did not specifically direct jurors to ignore the
    prosecutor’s “worst massacre” comments, it did instruct
    them that “arguments and opinions of counsel are not
    evidence.” The Nevada Supreme Court’s determination was
    therefore neither contrary to nor an unreasonable application
    of Darden.
    B.
    Floyd raised additional claims in his second state habeas
    petition that statements by the prosecutor amounted to
    misconduct. The Nevada Supreme Court held that those
    claims were procedurally barred, Floyd v. State, No. 51409,
    
    2010 WL 4675234
    , at *1 (Nev. Nov. 17, 2010), but because
    11
    Darden enumerated a few of the prosecutor’s statements: “He
    shouldn’t be out of his cell unless he has a leash on him and a prison
    guard at the other end of that leash.” “I wish [the victim] had had a
    shotgun in his hand when he walked in the back door and blown [the
    petitioner’s] face off. I wish that I could see him sitting here with no
    face, blown away by a shotgun.” “I wish someone had walked in the
    back door and blown his head off at that point.” “He fired in the boy’s
    back, number five, saving one [round]. Didn’t get a chance to use it. I
    wish he had used it on himself.” “I wish he had been killed in the
    accident, but he wasn’t. Again, we are unlucky that 
    time.” 477 U.S. at 180
    n.12.
    40                    FLOYD V. FILSON
    the State has forfeited any objection to the district court’s
    decision to review them on the merits nonetheless, we
    consider them de novo.
    Most of these claims are meritless, but we note two
    troubling arguments made by the prosecution. We find
    improper one set of statements characterizing the jury’s role
    in imposing the death penalty. At the penalty phase, the
    prosecution told the jury that “you’re not killing him,” that
    “[y]ou are part of a shared process,” and that “even after you
    render your verdict, there’s a process that continues.” These
    comments suggested that other decisionmakers might
    ultimately decide whether Floyd received the death penalty.
    They therefore present concerns under Caldwell v.
    Mississippi, 
    472 U.S. 320
    , 328–29 (1985), which held that
    the Eighth Amendment makes it “constitutionally
    impermissible to rest a death sentence on a determination
    made by a sentencer who has been led to believe that the
    responsibility for determining the appropriateness of the
    defendant’s death rests elsewhere.”
    Nevertheless, these comments did not “so affect the
    fundamental fairness of the sentencing proceeding as to
    violate the Eighth Amendment.” 
    Id. at 340.
    The statements
    did not quite as clearly suggest to the jury that Floyd would
    not be executed as did the offending remark in Caldwell. See
    
    id. at 325–26
    (“[Y]our decision is not the final decision”;
    “[T]he decision you render is automatically reviewable by
    the Supreme Court.”). Defense counsel emphasized the
    jury’s responsibility during his closing argument, telling the
    jurors, “[w]e sit before you and we ask whether or not you’re
    going to kill somebody.” Moreover, the jury instructions
    clearly stated that the jurors “must assume that the sentence
    will be carried out.” This sufficiently avoided any
    “uncorrected suggestion that the responsibility for any
    FLOYD V. FILSON                        41
    ultimate determination of death will rest with others,” so as
    to not require reversal. 
    Id. at 333
    (emphasis added).
    The prosecution also argued during the penalty phase
    that the death penalty “sends a message to others in our
    community, not just that there is a punishment for a certain
    crime, but that there is justice.”           This statement
    inappropriately implies that the jury could sentence Floyd to
    death to send a message, rather than making “an
    individualized determination.” Zant v. Stephens, 
    462 U.S. 862
    , 879 (1983). The harm of this statement was mitigated
    in part by jury instructions that emphasized the jury’s
    responsibility to weigh the specific aggravating and
    mitigating circumstances of the case. Both the defense and
    the prosecution also repeatedly emphasized and relied on the
    specific details of the crime at hand, encouraging the jury to
    make a determination based on the individual facts of the
    case. Finally, we agree with the district court’s holding that,
    in context, these comments did not “incite the passions of the
    jurors” and “did not include any overt instruction to the jury
    to impose the death penalty . . . to send a message to the
    community.” In light of the other arguments made at trial,
    and the strong evidence against Floyd, the improper
    argument by the prosecution did not “so infect[] the trial with
    unfairness as to make the resulting conviction a denial of due
    process.” 
    Darden, 477 U.S. at 181
    (quotation marks
    omitted).
    VIII.
    Floyd advances on appeal two claims outside the
    certificate of appealability issued by the district court. These
    uncertified claims challenge Nevada’s lethal injection
    protocol and courtroom security measures that caused
    certain jurors to see Floyd in prison garb and restraints. We
    42                    FLOYD V. FILSON
    construe this portion of his briefing as a motion to expand
    the certificate of appealability. 9th Cir. R. 22-1(e).
    A petitioner meets his burden for a certificate of
    appealability if he can make “a ‘substantial showing of the
    denial of a constitutional right,’ accomplished by
    ‘demonstrating that jurists of reason could disagree with the
    district court’s resolution of his constitutional claims or that
    jurists could conclude the issues presented are adequate to
    deserve encouragement to proceed further.’” Turner v.
    McEwen, 
    819 F.3d 1171
    , 1178 n.2 (9th Cir. 2016) (first
    quoting 28 U.S.C. § 2253(c)(2); and then quoting Miller-El
    v. Cockrell, 
    537 U.S. 322
    , 327 (2003)). Floyd makes no such
    showing here, and we therefore deny his motion to expand
    the certificate of appealability.
    First, Floyd’s uncertified challenge to Nevada’s lethal
    injection protocol—a three-drug sequence of the anesthetic
    midazolam, the opioid fentanyl, and the paralytic
    cisactracurium—is not yet ripe. In 2018, the manufacturer
    of Nevada’s supply of midazolam brought an action to
    enjoin its product’s use in executions. The manufacturer
    won, obtaining a preliminary injunction, Alvogen v. Nevada,
    No. A-18-777312-B (Nev. Dist. Ct. Sept. 28, 2018), which
    is currently on appeal to the Nevada Supreme Court. See
    State v. Alvogen, Inc., Nos. 77100, 77365 (Nev. 2019). As a
    result, for all practical purposes, Nevada presently has no
    execution protocol that it could apply to Floyd. A method-
    of-execution challenge is not ripe when the respondent state
    has no protocol that can be implemented at the time of the
    challenge. See Payton v. Cullen, 
    658 F.3d 890
    , 893 (9th Cir.
    2011) (claim unripe because no protocol in place following
    state court invalidation of existing protocol). We cannot
    determine what drugs Nevada might attempt to use to
    execute Floyd, and we cannot adjudicate the
    FLOYD V. FILSON                      43
    constitutionality of an unknown protocol. Floyd’s claim is
    therefore unripe for federal review because “the injury is
    speculative and may never occur.” Portman v. County of
    Santa Clara, 
    995 F.2d 898
    , 902 (9th Cir. 1993) (citation
    omitted).
    Second, Floyd’s uncertified and procedurally defaulted
    argument that his trial counsel was ineffective for failing to
    challenge various courtroom security measures fails. In
    Floyd’s second state habeas petition and instant federal
    petition, he contended that his trial counsel failed to object
    to the trial court’s forcing him to appear at voir dire in a
    prison uniform and restraints. The Nevada Supreme Court
    dismissed this claim as untimely and successive because it
    was first raised in Floyd’s second state petition, Floyd v.
    State, No. 51409, 
    2010 WL 4675234
    , at *1 (Nev. Nov. 17,
    2010), and the district court dismissed it as procedurally
    defaulted. As with Floyd’s other defaulted ineffective
    assistance of counsel claims, because of the underlying
    claim’s weakness, we need not resolve whether the state law
    under which it was deemed defaulted is adequate or whether
    Floyd may show cause and prejudice under Martinez v.
    Ryan, 
    566 U.S. 1
    (2012).
    In light of the overwhelming evidence of Floyd’s guilt
    and the weight of the aggravating factors against him, any
    reasonable jurist would agree that the courtroom security
    measures had no substantial effect on the jury’s verdicts. See
    Walker v. Martel, 
    709 F.3d 925
    , 930–31 (9th Cir. 2013)
    (reversing the grant of habeas relief on a shackling-related
    ineffective assistance claim because the prejudicial effect of
    shackles was “trivial” compared to aggravating evidence
    against defendant who killed multiple victims during armed
    robberies); Larson v. Palmateer, 
    515 F.3d 1057
    , 1064
    (9th Cir. 2008) (holding that when evidence against the
    44                   FLOYD V. FILSON
    defendant is overwhelming, prejudice from shackling is
    mitigated). Even if trial counsel should have objected to the
    restraints, Floyd was not prejudiced by that failure. See
    Harrington v. Richter, 
    562 U.S. 86
    , 111 (2011) (explaining
    that Strickland’s prejudice prong “asks whether it is
    reasonably likely the result would have been different.”
    (quotation marks and citation omitted)).
    We therefore deny the motion to expand the certificate
    of appealability as to both uncertified claims.
    IX.
    For the foregoing reasons, we AFFIRM the district
    court’s denial of habeas relief.