Order

ROBERT C. JONES, District Judge.

Introduction

This action is a petition for a writ of habeas corpus by William P. Castillo, a Nevada prisoner sentenced to death. The claims remaining in Castillo's second amended habeas petition are before the Court for adjudication on their merits. The Court will dismiss, without prejudice, part of one of Castillo's remaining claims, will deny Castillo habeas corpus relief on his other remaining claims, and will grant Castillo a certificate of appealability with respect to two claims.

Background Facts and Procedural History

In its order affirming the judgment of conviction in Castillo's case, the Nevada Supreme Court described the facts underlying this case, as follows:

Opinion, Respondents' Exh. 112, pp. 1-7 (ECF No. 91-14, pp. 2-8)) (published as Castillo v. State, 114 Nev. 271, 956 P.2d 103 (1998)).

Castillo was sentenced in Nevada's Eighth Judicial District Court (Clark County) on November 4, 1996, as follows: to 28 to 72 months in prison on Count I, conspiracy to commit burglary and/or robbery; to 48 to 120 months in prison on Count II, burglary; to 72 to 180 months in prison, plus a consecutive term of 72 to 180 months, for the elderly victim enhancement, on Count III, robbery, victim sixty-five years, or older; to death by lethal injection on Count IV, murder with use of a deadly weapon; to 28 to 72 months in prison on Count V, conspiracy to commit burglary and arson; to 48 to 120 months in prison on Count VI, burglary; and to 72 to 180 months in prison on Count VII, first-degree arson. See Judgment of Conviction, Respondents' Exh. 97 (ECF No. 90-31). All the sentences run consecutively. See id.

The Nevada Supreme Court affirmed the judgment of conviction on April 2, 1998. See Opinion, Respondents' Exh. 112 (ECF No. 91-14). The Nevada Supreme Court denied Castillo's petition for rehearing on November 25, 1998. See Order Denying Rehearing, Respondents' Exh. 122 (ECF No. 91-24). The United States Supreme Court denied Castillo's petition for writ of certiorari on March 22, 1999. See Castillo v. Nevada, 526 U.S. 1031 (1999); Letter Regarding Denial of Petition for Writ of Certiorari, Respondents' Exh. 129 (ECF No. 91-31). The Nevada Supreme Court's remittitur issued on April 28, 1999. See Remittitur, Respondents' Exh. 134 (ECF No. 92-5).

On April 2, 1999, Castillo filed a petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Respondents' Exh. 130 (ECF No. 92). The court appointed counsel to represent Castillo, and, with counsel, Castillo filed a supplemental brief in support of his petition. See Supplemental Brief in Support of Defendant's Petition for Writ of Habeas Corpus (Post-Conviction), Respondents' Exh. 155 (ECF Nos. 92-26, 92-27, 92-28). The court held an evidentiary hearing on August 2, 2002. See Recorder's Transcript, Respondents' Exh. 166 (ECF No. 93-7). Castillo then filed a second supplemental brief in support of his petition. See Second Supplemental Brief in Support of Defendant's Post Conviction Petition for Writ of Habeas Corpus, Respondents' Exh. 168 (ECF No. 93-9). On January 22, 2003, the court heard oral argument, and then denied Castillo's petition. See Recorder's Transcript, Respondents' Exh. 171 (ECF No. 93-12). The court filed its written order, denying Castillo's petition, on June 11, 2003. See Findings of Fact, Conclusions of Law and Order, Respondents' Exh. 183 (ECF No. 93-24). Castillo appealed. See Notice of Appeal, Respondents' Exh. 172 (ECF No. 93-13). The Nevada Supreme Court affirmed the denial of Castillo's petition on February 5, 2004. See Order of Affirmance, Respondents' Exh. 198 (ECF No. 94-15). The United States Supreme Court denied Castillo's petition for a writ of certiorari on October 4, 2004. See Letter Regarding Denial of Petition for Writ of Certiorari, Respondents' Exh. 208 (ECF No. 94-25); Order of the Supreme Court, Respondents' Exh. 209 (ECF No. 94-26).

This Court received Castillo's original pro se federal petition for writ of habeas corpus, initiating this case, on June 22, 2004. See Petition for Writ of Habeas Corpus (ECF No. 1).

The Court appointed counsel to represent Castillo. See Order entered July 7, 2004 (ECF No. 4); see also Notice of Acceptance of Appointment (ECF No. 7).

On November 15, 2005, Castillo filed a motion for leave to conduct discovery (ECF Nos. 22, 35). The Court granted that motion in part and denied in part. See Order entered June 15, 2006 (ECF No. 38). In particular, the Court denied Castillo leave to conduct discovery regarding claims not exhausted in state court. See id. Castillo moved for reconsideration, and the Court denied the motion for reconsideration (ECF No. 48). The discovery was concluded by March 2, 2007. See Order entered January 3, 2007 (ECF No. 48).

On July 30, 2007, Castillo filed, pro se, a notice (ECF No. 51) requesting that this action be dismissed and his death sentence carried out. The Court held a hearing regarding Castillo's request on August 13, 2007. See Minutes of Proceedings (ECF No. 55). The Court treated Castillo's notice as a request for voluntary dismissal, and granted that request, dismissing the case, without prejudice, on September 6, 2007. See Order entered September 4, 2007 (ECF Nos. 57, 58). After an apparent change of heart, Castillo moved to reinstate his federal habeas petition (ECF No. 59). The Court granted Castillo's motion, and vacated the judgment (ECF No. 62).

On December 15, 2008, Castillo filed a first amended petition for writ of habeas corpus (ECF No. 70). Respondents filed a motion to dismiss Castillo's first amended habeas petition (ECF No. 85). In response, Castillo moved for a stay of this action (ECF No. 98). On January 21, 2010, the Court granted Castillo's motion for stay, and stayed this action pending Castillo's further exhaustion of claims in state court (ECF No. 106).

On September 18, 2009, Castillo initiated his second state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Respondents' Exh. 222 (ECF Nos. 141-5, 141-6). On April 9, 2010, the state district court heard oral arguments, and denied Castillo's petition. See Recorder's Transcript, Respondents' Exh. 245 (ECF No. 143-6). The court filed its written ruling, denying Castillo's petition, on May 12, 2010. See Findings of Fact, Conclusions of Law and Order, Respondents' Exh. 247 (ECF No. 143-8). Castillo appealed. See Notice of Appeal, Respondents' Exh. 249 (ECF No. 143-10). On July 18, 2013, the Nevada Supreme Court affirmed the denial of Castillo's second state habeas petition. See Order of Affirmance, Respondents' Exh. 268 (ECF No. 144-12). The Nevada Supreme Court denied Castillo's petition for rehearing on November 22, 2013. See Order Denying Rehearing, Respondents' Exh. 270 (ECF No. 144-14).

Castillo then moved to lift the stay of this case, reporting that the state court proceedings had been completed (ECF No. 118). The Court granted that motion and lifted the stay on January 10, 2014 (ECF No. 120).

On May 19, 2014, Castillo filed a second amended petition for writ of habeas corpus (ECF No. 126), which is the operative petition in this case. Castillo's second amended petition sets forth the following claims:

Second Amended Petition (ECF No. 126), pp. 29-228.

The respondents filed a motion to dismiss Castillo's second amended petition (ECF No. 140), arguing that various claims in the second amended petition are barred by the statute of limitations, unexhausted, barred by the procedural default doctrine, and not cognizable in this federal habeas corpus action. The Court ruled on that motion, granting it in part and denying it in part, on March 2, 2016 (ECF No. 184). The following claims in Castillo's second amended petition were dismissed: Claims 1(I)(A), 1(II)(A), 1(II)(B), 1(II)(C), 3(I)(B), 3(I)(C), 3(II)(A), 3(II)(B), 4, 5, 6, 7(II)(A), 7(II)(B), 8(II)(A) (to the extent based on Hosking's testimony about the health and state of mind of the victim), 10, 11 (to the extent based on alleged ineffective assistance of counsel), 12, 14, 15, 17 and 18 (to the extent based on the prosecution's closing arguments). The Court also dismissed all petitioner's claims to the extent they are based on alleged ineffective assistance of counsel in his state habeas proceedings, and all petitioner's claims to the extent that they are based on alleged violation of the International Covenant on Civil and Political Rights. In all other respects, the motion to dismiss was denied.

Respondents then filed their answer (ECF No. 189), responding to the claims remaining in Castillo's second amended petition. Castillo filed a reply (ECF No. 195), and Respondents filed a response to the reply (ECF No. 215).

On December 23, 2016, Castillo filed a motion for reconsideration of certain aspects of the March 2, 2016, order (ECF No. 196), a motion for a stay (ECF No. 198), a motion for leave to supplement his second amended petition (ECF No. 199), and a motion for an evidentiary hearing (ECF No. 201). The Court denied those motions on September 18, 2017 (ECF No. 222).

On September 28, 2017, Castillo filed a motion for reconsideration of the Court's denial — in the order of September 18, 2017 — of his motion for a stay and his motion for leave to supplement his second amended petition (ECF No. 223). The Court denied that motion on January 29, 2018 (ECF No. 230).

The case is now before the Court for adjudication of the merits of the claims remaining in Castillo's second amended petition for writ of habeas corpus.

Discussion

Standard of Review

Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (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 (2003). 28 U.S.C. § 2254(d) sets forth the primary standard of review under the AEDPA:

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(d)(1), "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, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), "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 (quoting Williams, 529 U.S. at 413). 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).

The Supreme Court has 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, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has also instructed that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (AEDPA standard is "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 courts' "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 courts' 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 habeas relief only if "there was no reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98.

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 (2003).

In considering the petitioner's claims under section 2254(d), the federal court generally takes into account only the evidence presented in state court. Pinholster, 563 U.S. at 185-87.

If the petitioner meets the standard imposed by section 2254(d), the federal court may then allow factual development, possibly including an evidentiary hearing, and the federal court's review is then de novo. See Panetti v. Quarterman, 551 U.S. 930, 948 (2007); Wiggins, 539 U.S. at 528-29; Runningeagle v. Ryan, 686 F.3d 758, 786-88 (9th Cir. 2012).

Also, the federal court's review is de novo for claims not adjudicated on their merits by the state courts. See Cone v. Bell, 556 U.S. 449, 472 (2009); Porter v. McCollum, 558 U.S. 30, 39 (2009).

Claim 1(I)(B)

In Claim 1(I)(B), Castillo claims that his federal constitutional rights were violated because of ineffective assistance of counsel, as a result of his trial counsel's failure to present a psychological defense in the guilt phase of his trial. See Second Amended Petition (ECF No. 126), pp. 31-35.

Castillo asserted this claim in his first state habeas action. See Supplemental Brief in Support of Defendant's Petition for Writ of Habeas Corpus (Post-Conviction), Respondents' Exh. 155, pp. 40-43 (ECF Nos. 92-26, p. 42-ECF No. 92-27, p. 4); Second Supplemental Brief in Support of Defendant's Post Conviction Petition for Writ of Habeas Corpus, Respondents' Exh. 168, pp. 9-10 (ECF No. 93-9, pp. 10-11). The state district court held an evidentiary hearing. See Recorder's Transcript, Respondents' Exh. 166 (ECF No. 93-7). That court then denied relief on the claim, ruling as follows:

Findings of Fact, Conclusions of Law and Order, Respondents' Exh. 183, pp. 5-6 (ECF No. 93-24, pp. 6-7) (paragraph numbering omitted).

Castillo then asserted the claim on the appeal in his first state habeas action, and the Nevada Supreme Court affirmed the denial of relief on the claim, ruling as follows:

Order of Affirmance, Respondents' Exh. 198, pp. 7-9 (ECF No. 94-15, pp. 8-10).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. A court considering a claim of ineffective assistance of counsel must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id. at 689. The petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, the errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

Where a state court previously adjudicated the claim of ineffective assistance of counsel under Strickland, establishing that the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court instructed:

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994-95 (2010) (acknowledging double deference required with respect to state court adjudications of Strickland claims).

In analyzing a claim of ineffective assistance of counsel under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.

In light of the evidence relied upon by Castillo in his first state habeas action (see Pinholster, 563 U.S. at 181 ("[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.")), the Nevada Supreme Court's ruling, denying relief on this claim, was not unreasonable. In state court, Castillo focused his argument on the report and penalty-phase testimony of Dr. Lewis Etcoff, the psychologist retained by Castillo's trial counsel, and asserted that his trial counsel was ineffective for not presenting Dr. Etcoff as a witness in the guilt phase of the trial to attempt to show that Castillo could not have formed the intent required for first-degree murder. However, neither Dr. Etcoff's report (Petitioner's Exh. 26 (ECF No. 128-6, pp. 1-18)), nor Dr. Etcoff's testimony in the penalty phase of the trial (Respondents' Exh. 81, pp. 53-107 (ECF No. 90-12, p. 11-ECF No. 90-13, p. 20), provides any significant basis for argument that Castillo did not kill willfully, deliberately, and with premeditation. Dr. Etcoff determined that, as a child, at least in part as a result of neglect and abuse, Castillo suffered from Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder (ADHD), Conduct Disorder, and Personality Disorder; Dr. Etcoff opined that, as a child, Castillo had difficulty controlling his impulses. However, Dr. Etcoff's report and penalty phase testimony said little or nothing about Castillo's ability as an adult, when burglarizing Ms. Berndt's home, to form the intent necessary for first-degree murder.

At the evidentiary hearing in Castillo's first state habeas action, Castillo's trial counsel testified as follows:

Recorder's Transcript, Respondents' Exh. 166, pp. 9-11 (ECF No. 93-7, pp. 10-12). On cross-examination, Castillo's trial counsel testified further:

Id. at 16-17 (ECF No. 93-7, pp. 17-18).

Applying a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance, it was reasonable for Castillo's trial counsel to determine that Dr. Etcoff's testimony would not support a psychological defense, and that, on the contrary, it could well have undermined any defense Castillo might have pursued. Dr. Etcoff's testimony in the penalty phase of the trial included the following:

Q. Even despite any wishes he may have to live a proper life, you're saying that he would not be able to do so because of his background?

Reporter's Transcript, September 20, 1996, Respondents' Exh. 81, pp. 73-74, 79-80, 94-95 (ECF No. 90-12, pp. 31-32, 37-38; ECF No. 90-13, pp. 7-8) (last-quoted portion from cross-examination). Given Dr. Etcoff's opinions, it was reasonable for Castillo's counsel to decide not to call Dr. Etcoff as a witness in the guilt phase of the trial, and it was reasonable to not pursue a diminished capacity defense.

Even if the Court takes into consideration the new evidence proffered by Castillo in this action, but not before the state courts in his first state habeas action, the Court's conclusion in this regard is not changed. In this action, Castillo points to the reports of Rebekah G. Bradley, Ph.D. (Petitioner's Exh. 36 (ECF No. 128-7)) and Jonathan H. Mack, Psy.D. (Petitioner's Exh. 38 (ECF No. 128-9)), both of whom evaluated Castillo. Those reports were both produced in 2008, four years after Castillo's first state habeas action was completed. They were not before the state courts in Castillo's first state habeas case.

In her report, Dr. Bradley, a psychologist, reviews the abuse and violence to which Castillo was exposed as a child, and opines that, as a child, he suffered from Posttraumatic Stress Disorder (PTSD). See Report of Rebekah G. Bradley, Ph.D., Petitioner's Exh. 36 (ECF No. 128-7). Dr. Bradley explicitly states that she did not determine whether Castillo suffered from PTSD as an adult. See id. at 7, ¶30 (ECF No. 128-7, p. 8). Regarding the crimes underlying this case, Dr. Bradley states in her report:

Id. at 8 (ECF No. 128-7, p. 9). However, there, Dr. Bradley does nothing more than relate what Castillo told her; she does not state her own opinion regarding Castillo's mental state at the time of the killing. Furthermore, nowhere in her report does Dr. Bradley relate any of her findings regarding Castillo to the elements of first-degree murder. Dr. Bradley's report provides little support for Castillo's claim that his trial counsel was ineffective for not presenting a diminished capacity defense at trial.

Dr. Mack is also a psychologist. His report, as well, reviews Castillo's personal history, as revealed by documents that he examined and an interview of Castillo. See Report of Jonathan H. Mack, Psy.D., Petitioner's Exh. 38 (ECF No. 128-9). Dr. Mack also reports the results of tests he administered to Castillo. See id. Dr. Mack's diagnosis includes: "Cognitive Disorder NOS," "Reactive Attachment Disorder of Early Childhood," "Posttraumatic Stress Disorder, Chronic," "Conduct Disorder, Childhood-Onset Type," "Antisocial Personality Features," "History of serial concussions," "Problems with primary support group," "Problems related to the social environment," and "Problems related to interactions with the legal system." See id. at 17/18 (ECF No. 128-9, p. 66). Dr. Mack concludes:

Id. As with Dr. Bradley, Dr. Mack does not relate his findings to the elements of first-degree murder — that is, he does not render any opinion as to whether Castillo was or was not able to form the intent necessary for first-degree murder.

The jury was presented overwhelming evidence in the guilt phase of the trial showing that Castillo planned and executed the burglary of Ms. Berndt's home using a key that he had found while working there; carried a tire iron into her home during the burglary, despite using the key to get in; savagely beat Ms. Berndt with the tire iron when she stirred from her sleep, and then smothered her with a pillow to kill her; stole several items from her home; and later returned to set her home on fire to destroy evidence. The evidence that Castillo's crimes were carried out in such a calculated manner far eclipses anything in the reports of Dr. Bradley and Dr. Mack that arguably supports the proposition that Castillo was incapable of forming the intent necessary for first-degree murder.

Moreover, the reports of Dr. Bradley and Dr. Mack would have presented trial counsel with the same dilemma that Dr. Etcoff's report did: any support that such expert opinions would have provided for a diminished capacity defense would have been outweighed by damage done to Castillo's defense.

Therefore, even taking into account the reports of Dr. Bradley and Dr. Mack, Castillo does not show that his trial counsel was ineffective for not pursuing a diminished capacity defense in the guilt phase of his trial.

Castillo argues that his reliance on the reports of Dr. Bradley and Dr. Mack fundamentally alter this claim, placing it in a "significantly different and stronger evidentiary posture than it was when the state courts considered it," such that it should be considered procedurally defaulted, and therefore subject to de novo review if he can show that his state post-conviction counsel was ineffective for not presenting such evidence in support of the claim in his first state habeas action. See Reply (ECF No. 195), pp. 22-27, citing Martinez v. Ryan, 566 U.S. 1 (2012), and Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014). That analytical approach does not alter the Court's conclusion that relief must be denied on this claim. As there is no showing that there was a viable diminished capacity defense available to Castillo's trial counsel, and because any attempt by trial counsel to substantiate such a defense would have exposed the jury to damaging information about Castillo, Castillo's state post-conviction counsel was not ineffective for not developing and producing evidence such as the reports of Dr. Bradley and Dr. Mack in support of this claim, and Castillo was not prejudiced by the decision not to do so. See Martinez, supra. Therefore, even accepting Castillo's contention, and treating this claim, as supported with the reports of Drs. Bradley and Mack, as procedurally defaulted, the Court would find this claim barred by the procedural default doctrine, and subject to denial on that ground.

The Court will deny habeas corpus relief with respect to Ground 1(I)(B).

Claim 2

In Claim 2, Castillo claims that his federal constitutional rights were violated because the prosecutors used the same acts to support a conviction for first-degree murder and to support one or more aggravating factors, and trial and appellate counsel were ineffective for failing to raise this issue. See Second Amended Petition (ECF No. 126), pp. 107-12. In this claim, Castillo points out that he was prosecuted for first-degree murder on theories of both premeditated murder and felony murder, with the felony murder theory based on allegations that Castillo killed Ms. Berndt in the course of a burglary and in the course of a robbery. Castillo also points out that the jury found him guilty of first-degree murder in a general verdict, without specifying which theory — premeditated murder or felony murder — the jury relied upon. Castillo goes on to point out that, in the penalty phase of his trial, the prosecution asserted as aggravating factors, making him eligible for the death penalty, that the murder was committed in the course of a burglary and in the course of a robbery, and those were two of the four aggravating factors found by the jury. Castillo goes on:

Id. at 110-11. Castillo's claim is grounded in part on McConnell v. State, 102 P.3d 606 (Nev. 2004), in which the Nevada Supreme Court held that it is "impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated." McConnell, 102 P.3d at 624.

In this case, in the order entered March 2, 2016, the Court ruled that this claim was untimely filed and procedurally defaulted, but that Castillo may be able to overcome those bars by showing that he is actually innocent of the death penalty. See Order entered March 2, 2016 (ECF No. 184), pp. 16, 26-27, 33, 44-47, 59. The Court declined to rule on those issues in that order, however, reserving its ruling until after Respondents filed an answer, and Castillo a reply. See id.

Castillo asserted this claim in his second state habeas action. The state district court ruled, as follows, that the claim was procedurally barred, and that Castillo did not show a fundamental miscarriage of justice — innocence of the death penalty — to overcome the procedural bar:

Findings of Fact, Conclusions of Law and Order, Respondents' Exh. 247, p. 3 (ECF No. 143-8, p. 4). The Nevada Supreme Court affirmed that ruling, holding that Castillo's claims, in his second state habeas action, were procedurally barred, and that he did not make a showing to overcome the procedural bars; however, the court did not, in that order, specifically discuss Castillo's argument that he was actually innocent of the death penalty and could therefore overcome the procedural default. See Order of Affirmance, Respondents' Exh. 268 (ECF No. 144-12). Castillo petitioned for rehearing, and, in its order denying rehearing, the Nevada Supreme Court ruled as follows:

Order Denying Rehearing, Respondents' Exh. 270, pp. 1-3 (ECF No. 144-14, pp. 2-4).

The Nevada Supreme Court's consideration of this issue was in the context of the question whether Castillo could overcome the procedural bar of the claim by showing that he was innocent of the death penalty, and that there would be a fundamental miscarriage of justice if the claim were not considered on its merits. Castillo's argument that the Nevada Supreme Court adjudicated this claim on its merits (see, e.g., Reply (ECF No. 195), pp. 29, 42-47) is without merit.

Similarly, in this order, this Court considers this claim purely within the context of Castillo's argument that he can overcome the procedural default and statute of limitations bars of the claim by showing his actual innocence of the death penalty. Therefore, the deference to the state-court ruling prescribed by 28 U.S.C. § 2254(d) does not apply. The Court considers these issues de novo.

To demonstrate actual innocence to overcome a procedural default or statute of limitations bar, the general rule is that the petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." McQuiggin v. Perkins, 569 U.S. 383, 399 (2013); Schlup v. Delo, 513 U.S. 298, 327 (1995); see also Schlup, 513 U.S. at 329 ("a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt"). "Based on this total record, the court must make a `probabilistic determination about what reasonable, properly instructed jurors would do.'" House v. Bell, 547 U.S. 518, 538 (2016), quoting Schlup, 513 U.S. at 329. "The Court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." House, 547 U.S. at 538. Meeting this standard "raise[s] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial without the assurance that the trial was untainted by constitutional error," warranting "a review of the merits of the constitutional claims[.]" Schlup, 513 U.S. at 317.

Respondents point out that Castillo does not cite any United States Supreme Court precedent, or other federal court precedent for that matter, directly supporting the proposition that the burglary and robbery aggravating factors are invalid. In other words, Respondents contend — accurately it appears — that there is no federal analog to the Nevada Supreme Court's McConnell decision. This, though, is not controlling. The question before the Court is "actual innocence," within the meaning of Schlup and McQuiggin. As Castillo is under sentence of death on a state-court conviction, the matter of his guilt or innocence with respect to the application of the death penalty is a matter of state law. As the Nevada courts have invalidated two aggravating factors, the question becomes whether that has rendered Castillo "innocent" of the death penalty — whether it is more likely than not that no reasonable juror would have sentenced him to death in light of the invalidation of the two aggravating factors. See McQuiggin, 569 U.S. at 399; Schlup, 513 U.S. at 327-29.

The jury found there to be two other aggravating factors, which were not in violation of McConnell, and which are, for purposes of this analysis, valid: the murder was committed by a person previously convicted of a prior violent felony, and the murder was committed to avoid or prevent a lawful arrest. The Nevada Supreme Court ruled that, with the two invalid aggravators taken out of the equation, the mitigating circumstances did not outweigh the two valid aggravators, Castillo remained eligible for the death penalty, and the jury would still have sentenced Castillo to death.

The Nevada Supreme Court, then, has ruled on the question that is now before this Court. A majority of that court determined that, without the invalid aggravators, Castillo was not innocent of the death penalty. As the standard to be applied under McQuiggin and Schlup is a matter of what reasonable jurors would find, the Nevada Supreme Court's ruling, which this Court finds to be reasonable, is a strong indicator that a reasonable juror could have sentenced Castillo to death absent the invalid aggravators.

Castillo does not show that the reweighing conducted by the Nevada Supreme Court was unreasonable. In its order denying Castillo rehearing, the Nevada Supreme Court explicitly weighed the two remaining valid aggravators — "Castillo was previously convicted of a felony involving the use or threat of use of violence and he committed the murder to avoid lawful arrest" — against the mitigating circumstances identified by the jury — "(1) Castillo's youth at the time of the crime, (2) he committed the murder under the influence of extreme emotion al distress or disturbance, and (3) `[a]ny other mitigating circumstances.'" Order Denying Rehearing, Respondents' Exh. 270, pp. 1-3 (ECF No. 144-14, pp. 2-4). The Nevada Supreme Court stated that "[b]ased on the record, the `other mitigating circumstances' found by the trial jurors may have included that Castillo admitted guilt, demonstrated remorse, cooperated with police, did not plan the murder, and had a difficult childhood." Id. at 2 (ECF No. 144-14, p. 3). That court, with one justice dissenting, ruled:

Id. at 2-3 (ECF No. 144-14, pp. 3-4).

Castillo does not identify any federal constitutional infirmity in the Nevada Supreme Court's analysis. As a general rule, when an aggravating factor is invalidated, a reviewing court may, short of remanding for re-sentencing, either reweigh the mitigating evidence against the remaining aggravating factors or determine whether the consideration of the invalid aggravating factor was harmless error. See Clemons v. Mississippi, 494 U.S. 738, 741 (1990). The reviewing court must closely scrutinize "the import and effect of invalid aggravating factors," by "determin[ing] what the sentencer would have done absent the factor[s]." Stringer v. Black, 503 U.S. 222, 230 (1992). Despite Castillo's extensive arguments to the contrary, the Nevada Supreme Court did not violate these constitutional directives in re-weighing the aggravating factors against the mitigating circumstances in this case. The Nevada Supreme Court conducted the "close appellate scrutiny" contemplated by Stringer.

This Court, then, finds that the Nevada Supreme Court's ruling, reweighing the mitigating circumstances against the aggravators in Castillo's case, was reasonable and not in violation of Castillo's federal constitutional rights. And, this Court agrees with the conclusion reached by the Nevada Supreme Court.

Castillo argues that the Nevada Supreme Court's analysis was flawed because that court did not, in its reweighing of aggravating and mitigating factors, consider mitigation evidence produced in his second state habeas action but not in the penalty phase of his trial. See Reply (ECF No. 195), pp. 31-32, 41. Castillo argues that federal law required the state supreme court to consider the mitigation evidence developed later, in his second state habeas action; for that proposition, he cites Williams v. Taylor, 529 U.S. 362, 397 (2000). In Williams, a capital habeas case, the petitioner's trial counsel was ruled ineffective for not sufficiently investigating and presenting mitigating evidence at trial; the part of Williams cited by Castillo stands for the unsurprising proposition that, in such a case, in considering the prejudice caused by the attorney's ineffectiveness, the reviewing court must take into consideration the mitigation evidence developed in the habeas action, i.e., the mitigation evidence that the trial attorney should have discovered and offered at trial. See Williams, 529 U.S. at 396-99. The issue here is not a claim of ineffective assistance of counsel; it is a reweighing of aggravating and mitigating factors after certain aggravating factors are invalidated. Williams does not support Castillo's contention that federal law required the Nevada courts to take into consideration mitigation evidence not presented at trial. Castillo also cites Parker v. Dugger, 498 U.S. 308, 313, 322 (1990), Richmond v. Lewis, 506 U.S. 40, 42-43, 48-49, 52 (1992), and Valerio v. Crawford, 306 F.3d 742, 759 (9th Cir. 2002) (see Reply (ECF No. 195), pp. 31-32), but none of those cases have any bearing on the question under consideration here. There was no issue in Parker, Richmond, or Valerio with respect to whether a reviewing court, in reweighing aggravating and mitigating circumstances, must take into consideration mitigation evidence not produced in the trial court's sentencing, but developed in a subsequent post-judgment proceeding. In fact, Castillo cites no precedent in which a reviewing court, conducting a reweighing, took such later-developed mitigating evidence into consideration, much less any federal precedent requiring that a reviewing court do so.

Moreover, even if this Court were to accept Castillo's position, that later-developed mitigation evidence must be taken into consideration in the reweighing, the Court's conclusion regarding this claim would not change. This Court, independently viewing the remaining aggravators and all the mitigating circumstances — taking into consideration all the mitigating circumstances asserted by Castillo in this case, including the reports of Dr. Bradley and Dr. Mack — would conclude that a reasonable juror could still have found that the mitigating circumstances did not outweigh the valid aggravators. The evidence at trial showed that Castillo, who was previously convicted of a violent crime, snuck into an elderly lady's house at night to steal possessions from her, and when she stirred in her sleep, he became concerned that he would be caught, beat her with a tire iron, and smothered her to death; then, later, he returned and set her house on fire in a further attempt to conceal his crimes. The valid aggravating factors, that Castillo was previously convicted of a felony involving the use or threat of use of violence and that he committed the murder to avoid lawful arrest, are weighty. The Court is cognizant of the evidence that Castillo's childhood was nightmarish, and does not consider his mitigation evidence to be insubstantial by any means, but still concludes that a reasonable juror could have found that the mitigating circumstances did not outweigh the valid aggravators.

Castillo does not make the sort of showing of actual innocence required under McQuiggen and Schlup to overcome the procedural default and statute of limitations bars of this claim. The Court, therefore, denies relief on Claim 2 on the ground that the claim is barred by the procedural default doctrine and the statute of limitations.

Claim 3(I)(A)

In Claim 3(I)(A), Castillo claims that his federal constitutional rights were violated because the trial court failed to properly instruct the jury regarding the elements of first-degree murder. See Second Amended Petition (ECF No. 126), pp. 113-18.

In this claim, Castillo places at issue the so-called "Kazalyn instruction," a jury instruction approved in Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), and disapproved by the same court eight years later in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). The Kazalyn instruction (so-called because it was discussed by the Nevada Supreme Court in Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992)), as given in the guilt phase of Castillo's trial, was as follows:

Instructions to the Jury, Respondents' Exh. 67, Instruction No. 17 (ECF No. 89-24, p. 21). Castillo argues that this instruction was unconstitutional because it collapsed three elements of first-degree murder — "willful, deliberate and premeditated" — into one element: "premeditation." See Second Amended Petition (ECF No. 126), pp. 113-18.

Castillo asserted this claim in his second state habeas action. The state district court ruled that the claim was procedurally barred, and that Castillo did not show good cause, such as to overcome the procedural bar. See Findings of Fact, Conclusions of Law and Order, Respondents' Exh. 247, pp. 3-4 (ECF No. 143-8, pp. 4-5). The Nevada Supreme Court affirmed that ruling as follows, holding that the claim was procedurally barred, and that Castillo did not make a showing that failure to consider the claim on the merits would result in a fundamental miscarriage of justice because he is actually innocent of first degree murder under the holding of Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000):

Order of Affirmance, Respondents' Exh. 268, pp. 6-8 (ECF No. 144-12, pp. 7-9). Castillo petitioned for rehearing, and, in its order denying rehearing, the Nevada Supreme Court did not further discuss this issue. Order Denying Rehearing, Respondents' Exh. 270 (ECF No. 144-14).

In the order entered March 2, 2016, this Court ruled that this claim was untimely filed, and procedurally defaulted, but that Castillo may be able to overcome those bars by showing that he is actually innocent. See Order entered March 2, 2016 (ECF No. 184), pp. 16-17, 26-27, 33, 47-48, 59. The Court declined to rule on those issues in that order, however, reserving its ruling until after Respondents filed an answer, and Castillo a reply. See id.

In Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), the court of appeals held that the Kazalyn instruction is unconstitutional because it relieves the State "of its burden of proving every element of first-degree murder beyond a reasonable doubt." Polk, 503 F.3d at 909. Subsequently, however, in Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), the court determined that its holding in Polk was no longer good law in light of the intervening Nevada Supreme Court decision in Nika v. State, 198 P.3d 839 (Nev. 2008), in which the Nevada Supreme Court explained that "Byford represented a change in, rather than a clarification of, [Nevada] law." Babb, 719 F.3d at 1029. Thus, in cases in which the conviction was final after the Powell decision but prior to the Byford decision — like this case — the Kazalyn instruction did not violate the federal constitution. After Powell and prior to Byford, willfulness, deliberation, and premeditation were not separate elements of the mens rea necessary for first-degree murder, and the Kazalyn instruction accurately set forth Nevada law. See id.

Castillo's conviction became final on April 28, 1999, when the Nevada Supreme Court issued its remittitur after affirming his conviction on direct appeal. See Remittitur, Respondents' Exh. 134 (ECF No. 92-5). That was after Powell and before Byford. Castillo's claim is, therefore, foreclosed by the holding in Babb. The instruction he challenges was not unconstitutional.

Turning to the question whether Castillo has made a sufficient showing of actual innocence to overcome the procedural bars of this claim, the Court determines that there is no "new evidence," or more accurately, given the nature of Castillo's argument, no different jury instructions that should have been given, the effect of which on reasonable jurors must be considered. See McQuiggin, 569 U.S. at 399; Schlup, 513 U.S. at 327.

As the Court understands Castillo's argument, he claims that, even if the Kazalyn instruction properly stated the elements of first-degree murder under state law at the time of his conviction, the instruction violated his federal constitutional rights because it rendered ambiguous the Nevada statutes defining the degrees of murder, and blurred the distinction between first-degree and second-degree murder. This legal argument, however, does not suggest the sort of factual innocence required to overcome the procedural bars of this claim, under McQuiggin and Schlup. Castillo presents no new evidence, in the light of which it is more likely than not that no reasonable juror would have convicted him of first-degree murder, found him eligible for the death penalty or sentenced him to death.

Castillo's argument that he can overcome the statute of limitations and procedural default bars of this claim by a showing of actual innocence fails. The Court, therefore, denies relief on Claim 3(I)(A), on the ground that the claim is barred by the procedural default doctrine and the statute of limitations.

Claim 3(II)(C)

In Claim 3(II)(C), Castillo claims that his federal constitutional rights were violated, in the penalty phase of his trial, because the trial court failed to instruct the jury that it could consider other bad act evidence only after it found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, and appellate counsel was ineffective for failing to raise this issue. See Second Amended Petition (ECF No. 126), pp. 123-24.

Castillo asserted such a claim on the appeal in his first state habeas action, and the Nevada Supreme Court affirmed the denial of the claim, briefly discussing only the ineffective assistance of counsel part of the claim, as follows:

Order of Affirmance, Respondents' Exh. 198, pp. 6-7 (ECF No. 94-15, pp. 7-8).

This claim is without merit. Castillo cites no federal authority, much less United States Supreme Court precedent, remotely supporting the proposition that the suggested jury instruction is constitutionally mandated.

Castillo cites Arave v. Creech, 507 U.S. 463 (1993), and Lowenfeld v. Phelps, 484 U.S. 231 (1988), for the general proposition that a State's capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty; however, Castillo points to no authority supporting his contention that the suggested jury instruction is necessary in that regard. Castillo also cites Godfrey v. Georgia, 446 U.S. 420 (1980), but that case is wholly inapposite; Godfrey does not involve any issue regarding a jury instruction like the one Castillo contends should have been given.

Castillo makes no showing that the Nevada Supreme Court's denial of his claim — that his federal constitutional rights were violated, in the penalty phase of his trial, because the trial court failed to instruct the jury that it could consider other bad act evidence only after it found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt — was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

Furthermore, the part of the claim asserting that Castillo's federal constitutional rights were violated on account of ineffective assistance of his appellate counsel is also without merit. To the extent that Castillo argues that his appellate counsel was ineffective for not asserting on appeal that state law required the trial court to give the suggested jury instruction, that argument is foreclosed by the Nevada Supreme Court's ruling on this issue. The Nevada Supreme Court held that the lack of the suggested instruction was not error as a matter of state law. That ruling, based on the Nevada Supreme Court's construction of Nevada law, is authoritative, and is not subject to review in this federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). And, again, Castillo cites no federal precedent holding that the suggested jury instruction is constitutionally required. Castillo's appellate counsel was not ineffective, in violation of his constitutional rights, for not arguing on his direct appeal that the trial court erred in failing to instruct the jury that it could consider other bad act evidence only after it found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.

The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

The Court will deny Castillo relief on Claim 3(II)(C).

Claim 7(II)(C)

In Claim 7(II)(C), Castillo claims that his federal constitutional rights were violated as a result of prosecutorial misconduct in the penalty phase of his trial because the prosecutor forced jurors to choose between executing Castillo or an innocent future victim, and trial and appellate counsel were ineffective for failing to raise this claim. See Second Amended Petition (ECF No. 126), pp. 164-65.

This claim concerns the following exchange, which occurred during the prosecutor's closing argument in the penalty phase of Castillo's trial:

Trial Transcript, September 24, 1996, Afternoon Session, Respondents' Exh. 83, pp. 65-66 (ECF No. 90-17, pp. 32-33).

On his direct appeal, Castillo raised this issue, and the Nevada Supreme Court ruled as follows:

Opinion, Respondents' Exh. 112, pp. 10-13 (ECF No. 91-14, pp. 11-14). Castillo petitioned the Nevada Supreme Court for rehearing, and in the order denying rehearing, the court ruled, further, as follows:

Id. at [281], 956 P.2d at 109-10.

Order Denying Rehearing, Respondents' Exh. 122, pp. 1-2 (ECF No. 91-24, pp. 2-3).

Then, in his first state habeas action, Castillo raised his related ineffective assistance of counsel claims, and the state district court denied those claims, ruling as follows:

Findings of Fact, Conclusions of Law and Order, Respondents' Exh. 183, pp. 4-5 (ECF No. 93-24, pp. 5-6). On appeal, the Nevada Supreme Court affirmed the denial of the ineffective assistance of counsel claims, ruling as follows:

Order of Affirmance, Respondents' Exh. 198, pp. 4-6 (ECF No. 94-15, pp. 5-7).

To prevail on a claim of prosecutorial misconduct a habeas petitioner must show that the misconduct "so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process." Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986). The first issue is whether the prosecutor's remarks were improper; if so, the next issue is whether the remarks infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005) (citing Darden, 477 U.S. at 181). A prosecutorial misconduct claim is decided by "examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995) (internal quotation marks omitted).

This Court determines that the Nevada Supreme Court reasonably concluded that the argument of the prosecutor at issue here — asking the jurors to choose between executing Castillo or an innocent future victim, and suggesting that the jury had a moral duty to impose the death penalty — was improper but did not so infect the trial with unfairness as to render Castillo's sentence a denial of due process. The essence of the prosecutor's argument was that Castillo would pose a danger in the future, and there was ample evidence presented in the penalty phase of Castillo's trial to support that point. While the prosecutor's argument was improper, it did not mischaracterize evidence, and, in this Court's view, was not so egregious as to violate Castillo's constitutional right to due process of law.

With respect to the claim that trial counsel was ineffective, the record reflects that trial counsel did object, and the objection was ultimately overruled. Castillo does not make any showing that his trial counsel could have done more. The state courts reasonably denied the claim of ineffective assistance of trial counsel.

And, also with respect to the claim that Castillo's appellate counsel was ineffective vis-à-vis this claimed prosecutorial misconduct, the Court determines that the state courts reasonably denied relief. Castillo's appellate counsel did raise an issue regarding the prosecutor's argument on Castillo's direct appeal, albeit focusing on the prosecutor's argument that the jury must choose between executing Castillo or an innocent future victim, rather than the prosecutor's argument that the jury had a moral duty to impose the death penalty. The two arguments were closely related; indeed, the Nevada Supreme Court's decision on Castillo's direct appeal included a quotation of both arguments, in a single sentence. See Opinion, Respondents' Exh. 112, p. 10 (ECF No. 91-14, p. 11). This Court agrees with the Nevada Supreme Court, that there is no reasonable probability that the outcome of Castillo's direct appeal would have been different had his counsel on his direct appeal framed the argument differently. The state courts' denial of relief on the claim of ineffective assistance of appellate counsel was reasonable.

The Court will deny relief on Claim 7(II)(C).

Claim 8(II)(A)

In the remaining part of Claim 8(II)(A), Castillo claims that his federal constitutional rights were violated because the prosecution introduced irrelevant and prejudicial victim impact evidence — "a photograph of the victim and her granddaughter at the granddaughter's graduation" (ECF No. 126, p. 168) — during the guilt phase of his trial. See Second Amended Petition (ECF No. 126), pp. 167-69; Order entered March 2, 2016 (ECF No. 184), pp. 52-53.

Castillo asserted this claim on his direct appeal and the Nevada Supreme Court ruled as follows:

Opinion, Respondents' Exh. 112, pp. 8-9 (ECF No. 91-14, pp. 9-10).

"A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005). "`The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citations omitted); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). "Only if there are no permissible inferences the jury may draw from evidence can its admission violate due process." Alcala v. Woodford, 334 F.3d 862, 887 (9th Cir. 2003) (emphasis in original); Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999).

Castillo does not, in Claim 8(II)(A) (ECF No. 126, pp. 167-69) or in his argument in his reply regarding the claim (ECF No. 195, pp. 114-20), cite to a copy of the subject photograph in the record. For this reason alone, in the Court's view, Castillo fails to meet his burden on this claim.

Moreover, accepting Castillo's description of the photograph for purposes of analysis, this claim is without merit. Such evidence does not approach the standard for a due process violation. Castillo does not cite any federal precedent remotely supporting the proposition that the introduction of such evidence is a constitutional violation. The state courts' ruling, denying relief on this claim, was not unreasonable. The Court will deny habeas corpus relief with respect to Claim 8(II)(A).

Claim 8(IV)

In Claim 8(IV), Castillo claims that his federal constitutional rights were violated because the prosecution introduced unduly prejudicial victim impact testimony during the penalty phase of his trial. See Second Amended Petition (ECF No. 126), pp. 169-72. Specifically, Castillo challenges the admission of the penalty-phase testimony of Jean Marie Hosking, the victim's daughter, and Lisa Keimach and Ronda LaLicata, the victim's granddaughters. See id.

Regarding the testimony of Jean Marie Hosking, Castillo claims:

Id. at 170-71. Castillo also complains of Hosking's testimony regarding sympathy cards she received after her mother's murder. See id. at 171-72. Regarding the testimony of Lisa Keimach, who was Berndt's granddaughter, Castillo asserts:

Id. at 170. In his petition, Castillo does not make any specific claim regarding the testimony of Ronda LaLicata. See id. at 169-72.

Castillo asserted this claim on his direct appeal, and the Nevada Supreme ruled as follows:

Opinion, Respondents' Exh. 112, p. 13 (ECF No. 91-14, p. 14).

In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reconsidered its holdings in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), that the Eighth Amendment prohibited a capital sentencing jury from considering "victim impact" evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim's family. See Payne, 501 U.S. at 817. The Payne Court pointed out that "the assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment." Id. at 819. The Court commented as follows on victim impact evidence in capital sentencing proceedings:

Id. at 823. According to the Payne Court: "Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." Id. at 825. The Court continued:

Id. The Court concluded:

Id. at 827. The Payne Court cautioned, however: "In 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. See Darden v. Wainwright, 477 U.S. 168, 179-183, 106 S.Ct. 2464, 2470-2472, 91 L.Ed.2d 144 (1986)." Id. at 825.

The penalty-phase testimony of Jean Marie Hosking and Lisa Keimach was admissible victim-impact testimony, under Payne. It demonstrated that "the victim [was] an individual whose death represents a unique loss to society and in particular to his family," and it spoke to "the specific harm caused by the crime in question." See id. The testimony in question was not so unduly prejudicial as to render the trial fundamentally unfair, in violation of the Due Process Clause.

The Nevada Supreme Court's ruling on this claim, denying relief, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The Court will deny relief on Claim 8(IV).

Claim 9

In Claim 9, Castillo claims that his federal constitutional rights were violated because the trial judge allowed the prosecutor to elicit testimony regarding other criminal acts committed by Castillo. See Second Amended Petition (ECF No. 126), pp. 174-76.

Castillo points out, as background for this claim, that he filed a pre-trial motion to exclude evidence that at the time when he killed Berndt he needed money to pay attorneys' fees for representation in a separate criminal case, and the trial court granted the motion in part. See id. at 174. The trial court ruled as follows on the motion:

Reporter's Transcript, August 12,1996, Respondents' Exh. 47, p. 3 (ECF No. 88-18, p. 4).]

Castillo goes on to assert that the prosecution violated the trial court's order, and violated his federal constitutional rights, by eliciting the following testimony from Harry Kumma, Jr., who worked with Castillo:

Reporter's Transcript, August 29,1996, Respondents' Exh. 61, pp. 77-79 (ECF No. 89-14, pp. 32-34); see also Second Amended Petition (ECF No. 126), pp. 174-75. The defense moved for a mistrial based on his testimony, and the trial court denied that motion. See August 29,1996, Respondents' Exh. 61, pp. 93-95 (ECF No. 89-14, pp. 48-50).

Castillo goes on to point out that the prosecutor mentioned this testimony in closing argument, as follows:

Reporter's Transcript, September 4,1996, Respondents' Exh. 75, p. 61 (ECF No. 90-2, p. 17); see also Second Amended Petition (ECF No. 126), pp. 175-76.

Castillo contends that the witness' reference to "another case that he had ongoing," implied that Castillo had engaged in prior criminal conduct. See Second Amended Petition (ECF No. 126), p. 175. Castillo contends that that testimony, together with the prosecutor's mention of the testimony in closing argument, violated his federal constitutional rights.

Castillo raised this claim on his direct appeal, and the Nevada Supreme Court ruled as follows:

Opinion, Respondents' Exh. 112, pp. 9-10 (ECF No. 91-14, pp. 10-11).

The United States Supreme Court has not held that the introduction of evidence of prior bad acts, or other evidence to show propensity to commit a crime, violates due process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."). Citing the Supreme Court's express reservation of judgment on the issue, the Ninth Circuit Court of Appeals has held that federal habeas corpus relief is unavailable based on a state court's admission into evidence of prior bad acts or propensity evidence. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (rejecting habeas petitioner's challenge to introduction of propensity evidence because petitioner could point to no Supreme Court precedent establishing that admission of such evidence violated Constitution). Castillo does not point to any federal precedent supporting the proposition that the admission of prior bad acts or propensity evidence would be grounds for habeas corpus relief.

Approaching the claim more generally, as is discussed above regarding Claim 8(II)(A), "`[t]he admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley, 568 F.3d at 1101 (citations omitted); Gonzalez, 515 F.3d at 1011 (9th Cir. 2008). "Only if there are no permissible inferences the jury may draw from evidence can its admission violate due process." Alcala, 334 F.3d at 887 (emphasis in original); Houston, 177 F.3d at 910 n.6. The admission of the evidence at issue here does not approach this standard. The evidence was relevant. It suggested a motive for Castillo to rob Berndt; arguably, the nature of the legal proceeding — whether criminal or civil — had a bearing on the strength of Castillo's motivation. Furthermore, given that the evidence was ambiguous with respect to whether Castillo had previously committed any crime, it is questionable whether the evidence can even be considered prior bad acts or propensity evidence. The testimony in question did not render Castillo's trial so unfair as to violate his constitutional right to due process of law.

The Nevada Supreme Court was not unreasonable in concluding that the evidence in question did not render Castillo's trial fundamentally unfair. The Nevada Supreme Court's denial of relief on this claim was reasonable. This Court will deny Castillo habeas corpus relief on Claim 9.

Claim 11

In the remaining part of Claim 11, Castillo claims that his federal constitutional rights were violated because Nevada's deadly weapon enhancement statute was vague and over-broad. See Second Amended Petition (ECF No. 126), pp. 179-81; Order entered March 2, 2016 (ECF No. 184), pp. 54-55.

In the March 2, 2016 order, the Court determined that Castillo asserted this claim in his first state habeas action and that the Nevada Supreme Court ruled the claim procedurally barred, but that the Nevada Supreme Court did so under a state procedural rule that was not adequate to support application of the procedural default doctrine in this federal habeas action. See Order entered March 2, 2016 (ECF No. 184), pp. 54-55. This claim, then, remains to be adjudicated. And, as the state courts did not rule on the claim on its merits, this claim is subject to de novo review in this action; the standard prescribed by 28 U.S.C. § 2254(d) does not apply. See Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016) ("Any federally reviewable claim that was not adjudicated on the merits in state court is reviewed de novo."); Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).

The Court determines that Castillo's claim is meritless. The claim is fundamentally flawed, because Castillo's sentence was not affected by the finding that he used a deadly weapon in the course of the crimes.

Castillo alleges in Claim 11: "Mr. Castillo was sentenced to death for the First-degree Murder conviction and the trial judge sentenced Mr. Castillo to 180 months incarceration for the robbery, with an equal and consecutive term of 180 months, for the use of a deadly weapon during the robbery." Second Amended Petition (ECF No. 126), p. 179. But that allegation is belied by the record. Castillo was charged with, among other crimes, robbery of a victim sixty-five years or older, and murder with the use of a deadly weapon. See Indictment, Respondents' Exh. 4 (ECF No. 87-8); Amended Indictment, Respondents' Exh. 25 (ECF No. 87-29). The only charge with alleged use of a deadly weapon was the murder charge. See id. However, because Castillo was sentenced to death for the murder, the deadly weapon enhancement was not applied and had no effect on his sentence for the murder. See Judgment of Conviction, Respondents' Exh. 97 (ECF No. 90-31). As for the robbery, Castillo was also convicted of that crime, and his sentenced was enhanced, but it was enhanced because the victim was older than 65 years (she was 86 years old when she was murdered). The sentence for the robbery was not enhanced because of the use of a deadly weapon. See id. Therefore, it is plain from the record that there simply was no deadly weapon enhancement applied in Castillo's sentencing. Castillo could not possibly have been prejudiced by the constitutional infirmity he alleges with respect to the deadly weapon sentence enhancement, and this claim is, consequently, wholly without merit.

The respondents made this point in their answer — explaining the flaw inherent in this claim. See Answer (ECF No. 189), pp. 59-61. Castillo did not reply to that argument in his reply; in fact, Castillo did not address Claim 11 at all in his reply. See Reply (ECF No. 195); see also Response to Reply (ECF No. 215), p. 41 ("Castillo does not address this ground in his reply.").

The Court will deny Castillo habeas corpus relief with respect to Claim 11.

Claim 13

In Claim 13, Castillo claims that his death sentence is invalid under the federal constitution because "Nevada's lethal injection scheme constitutes cruel and unusual punishment." See Second Amended Petition (ECF No. 126), pp. 179-81. As the court understands Claim 13, Castillo asserts both that lethal injection is unconstitutional in all cases — a general challenge — and that lethal injection, conducted in the manner in which Nevada authorities intend to conduct it in this case, would be unconstitutional — an as-applied challenge. See id.

In the March 2, 2016 order, the Court determined that Castillo asserted this claim in his first state habeas action and that the Nevada Supreme Court ruled the claim procedurally barred, but that the Nevada Supreme Court did so under a state procedural rule that was not adequate to support application of the procedural default doctrine in this federal habeas action. See Order entered March 2, 2016 (ECF No. 184), p. 56. This claim, then, remains to be adjudicated. And, as the state courts did not rule on the claim on its merits, this claim is subject to de novo review in this action; the standard prescribed by 28 U.S.C. § 2254(d) does not apply. See Runningeagle, 825 F.3d at 978; Chaker, 428 F.3d at 1221.

Castillo's general challenge to the constitutionality of lethal injection as a means of conducting his execution is a claim that lethal injection is in all cases unconstitutional, and that the respondents cannot possibly carry out his execution in a constitutional manner. This general challenge to lethal injection is meritless in view of United States Supreme Court precedent. In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court, on an appeal from a judgment in a civil rights action, ruled Kentucky's lethal injection protocol to be constitutional. The Baze holding forecloses the argument that lethal injection, no matter how administered, is necessarily unconstitutional. Baze demonstrates that lethal injection can be administered in a manner that does not constitute cruel and unusual punishment in violation of the Eighth Amendment. Castillo's general challenge to the constitutionality of lethal injection fails for this reason, and that part of Claim 13 will be denied.

Turning to Castillo's as-applied challenge, the Court determines that such a challenge to Nevada's execution protocol is not cognizable in this federal habeas corpus action.

In Nelson v. Campbell, 541 U.S. 637 (2004), a state prisoner sentenced to death filed a civil rights action, under 42 U.S.C. § 1983, alleging that the state's proposed use of a certain procedure, not mandated by state law, to access his veins during a lethal injection would constitute cruel and unusual punishment. The Supreme Court reversed the lower courts' ruling that the claim sounded in habeas corpus and could not be brought as a section 1983 action. The Supreme Court ruled that section 1983 was an appropriate vehicle for the prisoner to challenge the lethal injection procedure prescribed by state officials. Nelson, 541 U.S. at 645. The Court stated that the prisoner's suit challenging "a particular means of effectuating a sentence of death does not directly call into question the `fact' or `validity' of the sentence itself [because by altering the lethal injection procedure] the State can go forward with the sentence." Id. at 644. In Hill v. McDonough, 547 U.S. 573 (2006), the Court reaffirmed the principles articulated in Nelson, ruling that an as-applied challenge to lethal injection was properly brought by means of a section 1983 action. Hill, 547 U.S. at 580-83. Both Nelson and Hill suggest that a section 1983 claim is the more appropriate vehicle for an as-applied challenge to a method of execution. See also Glossip v. Gross, 135 S.Ct. 2726, 2738 (2015) ("In Hill, the issue was whether a challenge to a method of execution must be brought by means of an application for a writ of habeas corpus or a civil action under § 1983. We held that a method-of-execution claim must be brought under § 1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence.") (citations to Hill omitted).

Given the amount of time that passes, after the judgment of conviction becomes final, before a death sentence is carried out, it is certainly possible — and perhaps likely — that a state's execution protocol will change after the judgment is entered imposing the death sentence. In this Court's view, habeas corpus law and procedure have not developed, and are unsuited, for the adjudication of such an issue. This Court determines that an as-applied challenge to a method of execution is not in the nature of a challenge to the constitutionality of the petitioner's custody or sentence. See 28 U.S.C. § 2254. Rather, an as-applied challenge to a method of execution is more akin to a suit challenging the conditions of custody, which must be brought as a civil rights action under 42 U.S.C. § 1983. The Court rules, then, that the as-applied challenge in Claim 13 is subject to dismissal, without prejudice, as not cognizable in this federal habeas corpus action.

The Court will deny Claim 13 to the extent that it asserts a general challenge to the constitutionality of lethal injection as a means of capital punishment, and the Court will dismiss Claim 13, without prejudice, to the extent that it asserts an as-applied challenge, that is, a challenge to the specific lethal injection protocol that would be used to execute Castillo.

Claim 16

In Claim 16, Castillo claims that his federal constitutional rights were violated because of the arbitrariness of Nevada's capital sentencing scheme. See Second Amended Petition (ECF No. 126), p. 216. The only somewhat specific factual allegation in Claim 16 is the following:

Id.

The Court determines that Castillo's Claim 16, as set forth in his second amended petition, does not state a viable claim for habeas corpus relief. Castillo does not state sufficient factual detail to fairly enable the respondents to answer the claim. Rule 2(c) of the Rules Governing Habeas Corpus Cases requires the habeas petitioner to "specify all the grounds for relief available to [him]" and to "state the facts supporting each ground." "It is well-settled that `[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'" Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir.1994)).

Furthermore, and at any rate, capital punishment schemes similar to Nevada's generally have been held to be constitutional. See Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). And, the Supreme Court has held that, absent a showing that a system operated in an arbitrary and capricious manner, a petitioner "cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987) (emphasis in original); see also Pulley v. Harris, 465 U.S. 37, 50-51 (1984) ("There is . . . no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it."); Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir.2004) (rejecting argument that "different sentences for equally culpable co-defendants violate the prohibition against arbitrary imposition of the death penalty"); Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir.1996) ("There is no federal right to proportionality review. . . ."); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1308 (9th Cir.1996) (same).

In his reply, Castillo adds new allegations to this claim, significantly changing the focus and nature of the claim. See Reply (ECF No. 195), pp. 126-35. In his reply, Castillo argues that Nevada's capital punishment scheme fails to sufficiently narrow the class of death eligible defendants, grants the Nevada Supreme Court unfettered discretion, and lacks a reliable clemency mechanism; these assertions are not found in the claim as stated in Castillo's second amended petition. See id. The Court does not consider the new allegations and arguments that Castillo seeks to add to this claim for the first time in his reply. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) ("Arguments raised for the first time in [habeas] petitioner's reply brief are deemed waived."); Moore v. Chrones, 687 F.Supp.2d 1005, 1033 (C.D. Cal. 2010) ("[i]t is improper to attempt to change the substance of a claim through a traverse and to assert . . . a new claim distinct from that alleged in the original petition") (citing Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)).

In the March 2, 2016 order, the Court determined that Castillo asserted this claim in his first state habeas action and that the Nevada Supreme Court ruled the claim procedurally barred, but that the Nevada Supreme Court did so under a state procedural rule that was not adequate to support application of the procedural default doctrine in this federal habeas action. See Order entered March 2, 2016 (ECF No. 184), p. 57. Therefore, as the state courts did not rule on this claim on its merits, it is subject to de novo review in this action; the standard prescribed by 28 U.S.C. § 2254(d) does not apply. See Runningeagle, 825 F.3d at 978; Chaker, 428 F.3d at 1221.

The Court determines that Claim 16 does not state a viable claim for habeas corpus relief and will, accordingly, deny Castillo relief on Claim 16.

Claim 18

In the remaining part of Claim 18, Castillo claims that his federal constitutional rights were violated because, in the penalty phase of his trial, the trial judge, in instructions to the jury, limited the jury's consideration of Castillo's theory of mitigating factors. See Second Amended Petition (ECF No. 126), pp. 225-27; Order entered March 2, 2016 (ECF No. 184), p. 58. In this claim, Castillo acknowledges that the trial court instructed the jury regarding relevant mitigating circumstances specifically recognized in NRS § 200.035, and also instructed the jury, pursuant to that statute, that it was to consider "any other mitigating circumstances." See id. at 225. Castillo contends, however, that the trial judge erred, and violated his constitutional rights, by not instructing the jury to consider certain non-statutory mitigating circumstances, those being that Castillo admitted his guilt of the offense, that he demonstrated remorse, that he cooperated with the police after he was identified as a suspect, that he did not plan to commit the murder, and that he had a difficult childhood. See id.

The trial court denied Castillo's request to instruct the jury regarding the non-statutory mitigating circumstances, finding that to do so would amount to improper commentary on the evidence, and that the catchall instruction — to consider "any other mitigating circumstances" — was sufficient, in that it allowed the defense to make argument regarding the non-statutory mitigating circumstances in closing argument. See Reporter's Transcript, September 24, 1996, Exh. 82, pp. 54-57 (ECF No. 90-15, pp. 26-29); see also Petitioner's Exh. 25 (ECF No. 128-5, p. 89) (Castillo's proposed instruction).

Castillo asserted this claim on his direct appeal, and the Nevada Supreme Court ruled on it as follows:

Opinion, Respondents' Exh. 112, pp. 14-15 (ECF No. 91-14, pp. 15-16).

Castillo argues that the Nevada Supreme Court's ruling was contrary to, or an unreasonable application of, Hitchcock v. Dugger, 481 U.S. 393 (1987). See Reply (ECF No. 195), pp. 142-43. In Hitchcock, the Supreme Court held there to be constitutional error where an advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of non-statutory mitigating circumstances. Hitchcock, 481 U.S. at 398-99. The Court stated:

Hitchcock, 481 U.S. at 394.

The Court finds Castillo's argument in this regard to be without merit. The jury instructions in this case did not preclude the jury from considering that non-statutory mitigating circumstances asserted by Castillo. The catchall provision adequately informed the jury that those alleged mitigating circumstances could be considered.

Moreover, the Supreme Court held a similar catchall provision, and a jury instruction given under it, to be constitutional in Boyde v. California, 494 U.S. 370 (1990). In that case, the defendant presented extensive testimony of favorable character despite childhood disadvantages. See Boyde, 494 U.S. at 380-83. It was understood that the jury could consider that evidence only under the catchall provision, and the question was whether an instruction to consider "[a]ny other circumstance which extenuates the gravity of the crime" adequately informed the jury that character could be considered such a circumstance. See id. The Court examined "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id. at 380. A majority of the Court concluded that there was no showing that any ambiguity in the instruction precluded the jury from considering the character evidence. See id. at 383-85. This issue, in this case, is controlled by Boyde. Castillo makes no showing that the instruction given by the trial court, regarding application of the catchall provision, was ambiguous, such that there is a reasonable likelihood that the jury was precluded from considering his non-statutory mitigating circumstances. There was no constitutional violation.

The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Hitchcock, or Boyde. The Court will deny Castillo habeas corpus relief on Claim 18.

Claim 19

In Claim 19, Castillo claims that his constitutional rights were violated "due to the cumulative errors in his trial, appeal and state post-conviction proceedings and the systematic deprivation of [his] right to the effective assistance of counsel." Second Amended Petition (ECF No. 126), p. 228.

As is discussed above, the Court finds no constitutional error. Therefore, Castillo's claim of cumulative error in Claim 19 is of no moment, and the Court will deny Castillo habeas corpus relief with respect to Claim 19.

Certificate of Appealability

The standard for the issuance of a certificate of appealability requires a "substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000).

The Court finds that, applying the standard articulated in Slack, a certificate of appealability is warranted with respect to Claim 1(I)(B), Castillo's claim that his federal constitutional rights were violated because of ineffective assistance of counsel as a result of his trial counsel's failure to present a psychological defense in the guilt phase of his trial, and with respect to the issue of the cognizability in this habeas action of the as-applied challenge to the constitutionality of lethal injection as a method of execution in Claim 13. The Court will grant Castillo a certificate of appealability on those two claims. Regarding the remainder of Castillo's claims, the Court will deny him a certificate of appealability.

Conclusion

IT IS THEREFORE ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of the Court shall substitute William Gittere, for Timothy Filson, on the docket for this case, as the respondent warden.

IT IS FURTHER ORDERED that Claim 13 of the petitioner's second amended habeas petition (ECF No. 126) is dismissed, without prejudice, to the extent the petitioner claims that execution by lethal injection, as it would be carried out by the respondents in his case, is unconstitutional.

IT IS FURTHER ORDERED that all the remaining claims in the petitioner's second amended habeas petition, which are Claims 1(I)(B), 2, 3(I)(A), 3(II)(C), 7(II)(C), Claim 8(II)A) (the remaining part), 8(IV), 9, 11 (the remaining part), 13 (the remaining part, which is a general constitutional challenge to lethal injection), 16, 18 (the remaining part), and 19, are DENIED.

IT IS FURTHER ORDERED that the petitioner is granted a certificate of appealability with respect to Claim 1(I)(B), his claim that his federal constitutional rights were violated because of ineffective assistance of counsel as a result of his trial counsel's failure to present a psychological defense in the guilt phase of his trial, and with respect to the issue of the cognizability in this habeas action of the as-applied challenge to the constitutionality of lethal injection as a method of execution in Claim 13. With respect to all other claims in Castillo's second amended habeas petition, the Court denies a certificate of appealability.

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.