ORDER

EDWARD C. REED, District Judge.

Introduction

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

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

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

Background Facts and Procedural History

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

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

Sechrest appealed to the Nevada Supreme Court. Exhibit 63.2 The Nevada Supreme Court affirmed on August 27, 1985. Exhibit 71; Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985), overruled in part, Harte v. State, 116 Nev. 1054, 13 P.3d 420 (2000).

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

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

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

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

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

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

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

Sechrest appealed (docket #141), and on December 5, 2008, the court of appeals reversed and remanded. Sechrest v. Ignacio, 549 F.3d 789 (9th Cir.2008), cert. denied, ___ U.S. ___, 130 S.Ct. 243, 175 L.Ed.2d 241 (2009). The court of appeals reversed this court's rulings with respect to two of Sechrest's claims, both concerning his death sentences, and ordered that, when this court enters a final judgement, it is to grant habeas corpus relief with regard to the death sentences. Id. at 807-18. The court of appeals affirmed this court's rulings with respect to the claims asserted in petitioner's third amended habeas petition regarding his convictions. Id. at 805-07. The court of appeals revived the claims that, on the prior appeal, it had ruled procedurally barred. Id. at 802-05. Based on intervening authority— Valerio v. Crawford, 306 F.3d 742 (9th Cir.2002) (en banc)—the court of appeals held that the state procedural rule that it had previously held to have barred the claims (NRS 34.810) was not adequate to support the procedural bar. Sechrest, 549 F.3d at 802-05. The court of appeals remanded, ordering that those revived claims are to be adjudicated on their merits. Id. at 802-05, 817-18. In a footnote, the court of appeals stated that, because its decision mandates relief with respect to Sechrest's death sentences, this court need not adjudicate the remanded claims challenging the death sentences, as those claims are now moot. Id., p. 805 n. 5; see also id., p. 817 n. 16 (court of appeals declined to reach Sechrest's claim that his Fifth Amendment rights were violated by certain testimony in the penalty phase of his trial, because it concluded that Sechrest was entitled to resentencing).4

Meanwhile, while the appeal in this case was pending, on December 29, 2005, Sechrest filed a new post-conviction petition for a writ of habeas corpus in state court, asserting a claim pursuant to McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), in which the Nevada Supreme Court had held it impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on a felony upon which a felony murder theory is predicated. Exhibit 3(197).5 The state district court dismissed that petition, and Sechrest appealed to the Nevada Supreme Court. On July 20, 2010, the Nevada Supreme Court dismissed the appeal, determining that it was moot, in view of the ruling of the Ninth Circuit Court of Appeals, ordering that Sechrest is to be granted habeas corpus relief with respect to his death penalties. Exhibit 2(197).

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

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

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

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

Standard of Review of the Merits of Sechrest's Claims

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

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

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

Analysis of Claims in Sechrest's Fourth Amended Petition

Ground 1

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

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

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

Ground 2

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

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

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

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

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

Ground 2A

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

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

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

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

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

Id. at 79.

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

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

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

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

Ground 2B

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

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

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

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

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

Ground 2C

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

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

Exhibit 43, pp. 85-86.

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

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

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

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

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

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

Ground 2D

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

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

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

Ground 2E

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

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

Ground 2F

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

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

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

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

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

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

To say that this was a difficult case for Sechrest's counsel to defend is understatement. Sechrest's statement to the police was devastating to his defense, and that statement was in many respects corroborated by other evidence; in no respect was Sechrest's statement to the police significantly undermined by any other evidence. In short, the evidence of Sechrest's guilt was overwhelming. See discussion of Ground 4I, below. Even in hindsight, it is hard to imagine what other approach Sechrest's counsel could have taken to defend against the first degree kidnapping and first degree murder charges in the guilt phase of the trial. Sechrest does not make any specific suggestion in this regard. Sechrest does not indicate what other strategic approach his counsel could reasonably have taken. Sechrest does not identify any particular expert witness who would have helped his cause. Sechrest does not proffer any evidence to illustrate any sort of expert opinion that he contends should have been presented at trial by his counsel. Sechrest does not request an evidentiary hearing on this claim. See Motion for Evidentiary Hearing; Reply in Support of Evidentiary Hearing.

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

Ground 2G

In Ground 2G, Sechrest claims:

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

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

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

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

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

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

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

Grounds 2H and 2O

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

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

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

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

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

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

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

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

In summary, with respect to Sechrest's ineffective assistance of counsel claims in Grounds 2H and 2O, Sechrest has not articulated any manner in which his counsel performed unreasonably with respect to the voir dire of potential jurors Raymond, Jouhin, Azparren, and Wycoff. None of those potential jurors was seated on the jury. See Exhibit 41, p. 40 (challenge for cause of potential juror Raymond), p. 131 (peremptory challenge of potential juror Jouhin), p. 149 (peremptory challenge of potential juror Azparren), p. 185 (peremptory challenge of potential juror Wycoff). Sechrest does not make any allegation, in Grounds 2H and 2O, that any individual who was actually seated on the jury was biased. Therefore, Sechrest cannot show that any conceivable shortcoming of his counsel's performance with respect to juror voir dire caused him prejudice. See Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) ("Any claim that the jury was not impartial . . . must focus ... on the jurors who ultimately sat."); see also United States v. Martinez-Salazar, 528 U.S. 304, 317, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

Sechrest has—in a purely pro forma manner—requested an evidentiary hearing with respect to Grounds 2H and 2O. He does not state what facts he would seek to prove at an evidentiary hearing, and he does not give any indication of the sort of evidence he would offer. See Motion for Evidentiary Hearing; Reply in Support of Evidentiary Hearing. Sechrest does not show that if he were allowed to prove any particular fact at an evidentiary hearing, he could establish that habeas corpus relief is warranted on either Ground 2H or Ground 2O. The court will, therefore, deny Sechrest's request for an evidentiary hearing on Grounds 2H and 2O.

In Ground 2H, Sechrest appears to raise other claims besides the claims of ineffective assistance of counsel. See Fourth Amended Petition, p. 25 ("Petitioner was deprived of his constitutional rights to a fair trial and right to counsel in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments by virtue of trial court error and defense counsel's ineffective performance."). This is in contrast to the claim that was included in Sechrest's second amended petition, which is the claim remanded to this court for resolution; in the version of the claim in the second amended petition, Sechrest claimed only ineffective assistance of counsel. See Second Amended Petition, p. 37 ("Ricky David Sechrest was deprived of his Constitutional rights pursuant to the fifth and sixth amendments due to defense counsel's ineffective performance as to jury selection."). The new claims in Ground 2H are beyond the scope of the remand, and this court rejects those portions of Ground 2H on that basis. Moreover, even if the court were to address the new claims in Ground 2H, the court would deny relief on them. Sechrest does not show that he was denied a fair trial, or trial by an unbiased jury, on account of the manner in which jury voir dire was conducted.

The court will deny habeas corpus relief with respect to Grounds 2H and 2O.

Ground 2I

Sechrest's claim in Ground 2I is, in its entirety, as follows:

Fourth Amended Petition, p. 25 (citations to record omitted).

In his argument regarding Ground 2I, Sechrest does not show what the standard was in Nevada courts in 1983 for a change of venue. See id.; see also Reply, pp. 23-24. It is that standard that would have applied to the motion for change of venue that Sechrest asserts his counsel should have made. Sechrest, instead, focuses on the federal constitutional standard, arguing that, as a result of his counsel's failure to move for a change of venue, his federal constitutional rights to due process of law and a fair trial were violated. See Reply, pp. 23-24.

Sechrest has submitted, as an exhibit to his reply, copies of newspaper articles about his case, which appeared in Reno newspapers between the time of the disappearance of Maggie and Carly and the conclusion of Sechrest's trial. Exhibit 1(197). The court has examined that exhibit, and takes it into consideration in analyzing this claim.

Sechrest requests an evidentiary hearing regarding Ground 2I, but that request is completely pro forma; Sechrest does not give any indication what facts he would seek to prove to show that habeas relief is warranted on Ground 2I, and he does not state what evidence he would offer at an evidentiary hearing on that claim. See Motion for Evidentiary Hearing; Reply in Support of Motion for Evidentiary Hearing. Sechrest does not show an evidentiary hearing on this claim to be warranted.

In Hayes v. Ayers, 632 F.3d 500 (9th Cir.2011), the court of appeals described the law governing a claimed due process violation resulting from a denial of a request for change of venue:

Hayes, 632 F.3d at 507-11.

Sechrest has not shown that any juror had actual partiality or hostility that could not be laid aside. See Harris, 885 F.2d at 1363-64. While nearly all the prospective jurors knew of the case, and had been exposed to media coverage of it, there is no indication in the record that the trial court had any unusual difficulty in selecting an impartial jury. See Exhibits 40 and 41. "[J]urors need not ... be totally ignorant of the facts and issues involved." Harris, 885 F.2d at 1363 (quoting Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975)). "The relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant." Id. at 1364 (quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)).

Furthermore, the court has examined the newspaper articles from the time submitted by Sechrest (Exhibit 1(197)), and concludes that, while there were a number of articles in Reno newspapers concerning Sechrest's case, that media attention was not so pervasive and inflammatory as to give rise to a presumption of prejudice. See Skilling, 130 S.Ct. at 2915; see also Harris, 885 F.2d at 1361. The newspaper articles were largely factual accounts of the crime and court proceedings, rather than opinion pieces containing inflammatory rhetoric. See Harris, 885 F.2d at 1362.

In sum, Sechrest has not demonstrated that there was ineffective assistance of counsel in failing to move for a change of venue, because there is no showing that a motion for change of venue would have had a reasonable chance of success, and there is no showing of a reasonable probability that the outcome of the proceedings would have been different had counsel made a motion for change of venue.

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

Ground 2J

Sechrest's claim, in Ground 2J, in its entirety, is as follows:

Fourth Amended Petition, p. 25 (paragraph numbering omitted). In his reply, Sechrest adds the following:

Reply, p. 24.

Sechrest's claim fails, for he has not set forth any allegations indicating—and has not proffered any evidence to show—what counsel would have learned from any particular witness interview. Sechrest's allegations that his "grandmother could potentially have supported counsel's theory that Mr. Sechrest's murder of the victims was not premeditated," and his statement that "[o]ther family members and friends could have provided evidence as to Mr. Sechrest's mental state," are insufficient in that they suggest only a possibility that those interviews might have been helpful, and they do not provide any information about what any witness would actually have said. As for his mother, Sechrest does not give any indication, even in general or hypothetical terms, what his mother would have said to help his case.

Sechrest requests an evidentiary hearing regarding Ground 2J, but, here again, he does not give any indication what facts he would seek to prove to show that habeas relief is warranted on Ground 2J, and he does not state what evidence he would offer at an evidentiary hearing on that claim. See Motion for Evidentiary Hearing; Reply in Support of Motion for Evidentiary Hearing. Sechrest does not show an evidentiary hearing on this claim to be warranted.

Sechrest does not demonstrate that his counsel performed in an objectively unreasonable manner with respect to his alleged failure to interview witnesses, and Sechrest does not demonstrate prejudice. The court will, therefore, deny habeas corpus relief with respect to Ground 2J.

Ground 2K

Ground 2K is a claim that Sechrest's counsel was ineffective for failing to renew a motion for appointment of second counsel. See Fourth Amended Petition, p. 25; Second Amended Petition, p. 41. In his fourth amended petition, Sechrest states: "This claim was rejected by this Court in its [previous] order," citing this court's order entered April 19, 2004 (docket # 136), and the judgment entered the same day (docket # 137).

The court decided a similar, but not identical, claim in its April 19, 2004 order. See Order entered April 19, 2004 (docket # 136). That was a claim that Sechrest's rights were violated by the trial court's denial of his motion for a second attorney. See id. The court denied that claim because there was no legal authority supporting a claim that there is a constitutional requirement that a defendant in a capital case be represented by two attorneys. See id. The court's ruling on that claim was unaffected by Sechrest's appeal. See Sechrest, 549 F.3d 789.

While the claim asserted in Ground 2K is not identical to the claim decided in 2004—the claim in Ground 2K is a claim of ineffective assistance of counsel—the reasoning of the court in its previous order applies as well to Ground 2K, and leads to the conclusion that renewing the motion for second counsel would not have been successful. Sechrest's counsel's performance was, therefore, not unreasonable, and Sechrest was not prejudiced.

At any rate, in light of the court's ruling in 2004 on the similar claim, Sechrest appears to abandon the claim in Ground 2K. See Fourth Amended Petition, p. 25; see also Reply (no argument regarding Ground 2K).

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

Ground 2L

In Ground 2L, Sechrest claims that his constitutional rights were denied as a result of trial counsel's failure to conduct a preliminary hearing. See Fourth Amended Petition, p. 25. Sechrest, however, withdraws this claim. See id. Accordingly, the court will deny relief on it.

Ground 2M

In Ground 2M, Sechrest claims that his trial counsel was ineffective for failing "to request notice of `other bad acts' evidence." Fourth Amended Petition, pp. 25-26.

This claim relates only to the penalty phase of Sechrest's trial. In view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 26 (Sechrest concedes claim is moot).

Ground 2N

In Ground 2N, Sechrest claims that his trial counsel was ineffective for failing "to exclude Mr. Sechrest's prior convictions during the penalty hearing." Fourth Amended Petition, pp. 25-26.

This claim, too, relates only to the penalty phase of Sechrest's trial. In view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 26 (Sechrest concedes claim is moot).

Ground 2P

In Ground 2P, Sechrest claims that his trial counsel was ineffective for failing to "life qualify" the jury. Fourth Amended Petition, p. 26.

Here again, this is purely a penalty phase claim. In view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 26 (Sechrest concedes claim is moot).

Ground 2Q

In Ground 2Q, Sechrest claims that his trial counsel was ineffective for failing to "inform Mr. Sechrest of his right to testify or to allocute." Fourth Amended Petition, p. 26. Sechrest, however, withdraws this claim. See id. at 27. Therefore, the court will deny relief on Ground 2Q.

Ground 2R

Ground 2R is a cumulative error claim, in which Sechrest claims that "each of the above identified incidents of ineffectiveness, when taken singly and cumulatively, indicate that prior counsel was ineffective throughout the guilt phase of Mr. Sechrest's trial" and that "[t]here is a reasonable probability that had defense counsel performed effectively, the results of the trial would have been different." Fourth Amended Petition, p. 27.

Without any discussion, Sechrest requests an evidentiary hearing on Ground 2R. See Reply in Support of Motion for Evidentiary Hearing, p. 3. Sechrest does not indicate what factual issues would be at issue in such an evidentiary hearing, he does not show he would be entitled to relief on Ground 2R if he was allowed to prove any fact at an evidentiary hearing, and he does not state what evidence he would offer at such an evidentiary hearing. The court will deny Sechrest's request for an evidentiary hearing on Ground 2R.

As the court does not find that the performance of Sechrest's counsel fell below an objective standard of reasonableness, in any manner alleged by Sechrest in Grounds 2A through 2R, Sechrest's claim of cumulative error is unavailing. The court will deny habeas corpus relief on Ground 2R.

Ground 3

In Ground 3, Sechrest claims that his constitutional rights were violated because his counsel on his direct appeal was ineffective. Fourth Amended Petition, p. 28. Sechrest asserts that his appellate counsel was ineffective for not raising, on his direct appeal, the issues raised by Sechrest in his fourth amended petition. Id.

This claim is moot to the extent that it is based upon the alleged failure of Sechrest's appellate counsel to raise issues regarding his death sentences, as the court of appeals has ruled that Sechrest is entitled to habeas corpus relief with regard to those sentences. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing).

As for Sechrest's claims that his appellate counsel was ineffective for failing to raise, on his direct appeal, issues regarding his convictions, i.e., issues regarding the guilt phase of his trial, Sechrest has not shown any of those claims, as set forth in his fourth amended petition, to be meritorious. Therefore, Sechrest does not demonstrate that the performance of his appellate counsel, in failing to raise any claim, was objectively unreasonable, or that he was prejudiced by counsel's failure to raise any claim.

Sechrest requests an evidentiary hearing on Ground 3. See Reply in Support of Motion for Evidentiary Hearing, p. 4. However, here again, Sechrest does not indicate what factual issues would be at issue in such an evidentiary hearing, he does not show he would be entitled to relief on Ground 3 if he was allowed to prove any fact at an evidentiary hearing, and he does not state what evidence he would offer at such an evidentiary hearing. The court will deny Sechrest's request for an evidentiary hearing on Ground 3.

The court will deny Sechrest habeas relief with respect to Ground 3.

Ground 4

In Ground 4, Sechrest claims that his constitutional rights were violated "due to pervasive prosecutorial misconduct throughout the entirety of [his] trial." Fourth Amended Petition, p. 29. Sechrest alleges eight different kinds of misconduct on the part of the prosecution, and describes those in subparts 4A through 4H of Ground 4; he asserts a "cumulative impact" claim in subpart 4I. See id. at 29-36. In the following sections, regarding Grounds 4A through 4H, the court considers each species of prosecutorial misconduct alleged by Sechrest, and then, in the discussion regarding Ground 4I, the court considers the effect of the conduct on the part of the prosecutor that this court does find objectionable.

Respondents include, in their response to the claims in Ground 4, an argument that those claims are procedurally barred because, at trial, Sechrest's counsel did not object to the arguments that Sechrest claims were improper. See Answer, p. 46. Under the procedural default doctrine, a federal court will not review a claim for habeas corpus relief if a state court's rejection of the claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Respondents do not point to any state-court ruling that the claims of prosecutorial misconduct were procedurally defaulted because of defense counsel's failure to object at trial. Indeed, on Sechrest's appeal to the Ninth Circuit Court of Appeals, that court, based on intervening developments in the law, reversed its previous ruling that these prosecutorial misconduct claims were procedurally defaulted under NRS 34.810, and remanded them to this court for resolution on their merits. See Sechrest, 549 F.3d at 803-04, 817 ("Sechrest's previously defaulted claims ... should not have been barred from habeas review."). The claims of procedural misconduct in Grounds 4A to 4I are not procedurally barred, and are before this court for decision on their merits.

Ground 4A

In Ground 4A, Sechrest claims that the prosecutor "improperly aligned himself with the jurors, inducing them to trust the state's judgment rather than their own view of the evidence." Fourth Amended Petition, p. 29. In Ground 4A, Sechrest also complains that the prosecutor vouched for the State's witnesses. Id. Sechrest points to the following arguments made by the prosecutor:

Fourth Amended Petition, pp. 29-31.

Each of these statements and arguments by the prosecutor was indeed improper. See United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); United States v. Molina, 934 F.2d 1440, 1444-45 (9th Cir.1991) ("As a general rule, a prosecutor may not express ... belief in the credibility of government witnesses. Such prosecutorial vouching, which consists of either placing the prestige of the government behind the witnesses through personal assurances of their veracity or suggesting that information not presented to the jury supports the witnesses' testimony, is improper." (citation omitted)); Leavitt v. Arave, 383 F.3d 809, 834 (9th Cir.2004); Sechrest, 549 F.3d at 810-11.

However, as is explained, below, in the discussion of Ground 4I, in light of the strength of the evidence of Sechrest's guilt, the court finds that these improper arguments of the prosecutor did not have any effect on the outcome of the trial. Sechrest's trial clearly turned, in large part, on the statement that Sechrest, himself, gave to the police. There was no claim that Sechrest fabricated the inculpatory aspects of that statement, and, generally, there was no evidence to undermine that statement in any significant way. The prosecutor's improper statements, emphasizing his office and the time he had served in it, aligning himself with the jurors as "their attorney," and vouching for the prosecution's witnesses, had no effect on the key evidence against Sechrest, which was his own statement to the police. See discussion of Ground 4I, below. The improper arguments of the prosecutor, identified in Ground 4A, did not infect Sechrest's trial with unfairness, see Hall v. Whitley, 935 F.2d 164, 165-66 (9th Cir. 1991), and did not have "substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

The court will deny habeas corpus relief with respect to Ground 4A.

Ground 4B

In Ground 4B, Sechrest claims that the prosecutor improperly commented on his invocation of the right to remain silent. Fourth Amended Petition, p. 30. Sechrest points to the following, in the prosecutor's closing argument:

Id.; see also Exhibit 42, p. 82, lines 1-3. Sechrest asserts that the prosecutor's argument served as a comment on the fact that he did not take the stand to testify.

The Ninth Circuit Court of Appeals has ruled that "[a] prosecutor is entitled to comment on a defendant's failure to present witnesses so long as it is not phrased as to call attention to the defendant's own failure to testify." United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1991); see also United States v. Hill, 953 F.2d 452, 460 (9th Cir.1991). The prosecutor's argument, in this case, did not call attention to Sechrest's failure to testify. In fact, the prosecutor followed the statement quoted above with the following:

Exhibit 42, p. 82, lines 4-6. This plainly was not a reference to Sechrest's failure to testify; the defense would not have to subpoena the defendant. The prosecutor's comments cannot reasonably be interpreted as commentary on the defendant's failure to testify, especially in light of the prosecutor's mention of the subpoena power of the defense.

The court will deny habeas corpus relief with respect to Ground 4B.

Ground 4C

In Ground 4C, Sechrest claims that the prosecutor improperly disparaged him, and also his counsel. Fourth Amended Petition, pp. 30-31. Sechrest complains of the following arguments made by the prosecutor in his closing argument:

The claim in Ground 4C is not one remanded to this court for decision. This claim reaches beyond anything Sechrest included in his second amended petition, in the claims remanded to this court. In the second amended petition, of the statements of the prosecutor now challenged by Sechrest, Sechrest only complained of the last two quoted above, and as to those, the following is how Sechrest presented his claim in the second amended petition:

Second Amended Petition, pp. 50-51 (as in original). Those are not the claims that Sechrest asserts now; now he claims that the prosecutor's arguments improperly disparaged him, or his counsel. None of the other prosecution arguments complained of in Ground 4C was mentioned in the second amended petition at all. In short, the claims made by Sechrest in Ground 4C are not claims remanded to this court for resolution on their merits. The claims in Ground 4C are beyond the scope of the remand, and this court rejects them on that basis.

Moreover, even if the court were to address the merits of Ground 4C, the court has considered the arguments of the prosecutor that Sechrest complains of in Ground 4C, and determines that, taken in context, those arguments were commentary on the defendant's statements to the police, and on his theory of the case; those arguments were not improper ad hominem attacks on Sechrest or his counsel. See United States v. Birges, 723 F.2d 666, 672 (9th Cir.1984) ("It is neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant who has taken the stand. The prosecutor's interpretation of Birges' duress claim as a "fabrication" is also well within the bounds of acceptable comment.").

The court will deny habeas corpus relief with respect to Ground 4C.

Ground 4D

In Ground 4D, Sechrest claims that the prosecutor committed misconduct by characterizing him as a sexual deviant. Fourth Amended Petition, pp. 31-33. Sechrest complains of the following statements and arguments made by the prosecutor:

Fourth Amended Petition, pp. 31-32.

The claim in Ground 4D was not among the claims remanded to this court by the court of appeals. In his second amended petition, Sechrest did not complain of any of these arguments of the prosecutor. See Second Amended Petition, pp. 44-50; see also Fourth Amended Petition, p. 33, lines 1-2 ("[T]hese specific instances of misconduct were not specifically alleged in Mr. Sechrest's second amended petition.").

Sechrest argues that while these particular alleged instances of misconduct of the prosecutor were not specifically alleged in the second amended petition, "they are more instances of the same type of misconduct already alleged and this Court must consider them in the context of the cumulative nature of the state's pervasive misconduct during trial...." Fourth Amended Petition, p. 33, lines 2-4. However, there was no claim in the second amended petition that the prosecutor committed misconduct by characterizing Sechrest as a sexual deviant. See Second Amended Petition, pp. 44-50. This is a new claim, one not remanded to this court for resolution. The remand of claims of prosecutorial misconduct, in general, did not open the door for Sechrest to raise new claims, asserting kinds of prosecutorial misconduct not before alleged. The claim in Ground 4D is beyond the scope of the remand and the court rejects it on that basis.

Even if the court were to address this claim, however, the prosecutor's remarks regarding Sechrest's sexuality were not improper. The prosecution had reason to inform the jury that the evidence showed that Sportsman and Sechrest were lovers; Sportsman was a key witness, and it was important that the jury know their relationship.

Furthermore, the prosecution had reason to inform the jury that the evidence showed that Sechrest was bisexual. The murders obviously had a sexual component. When found, Maggie's body was disrobed except for her underwear. See Exhibit 44, pp. 23-24 (testimony of David Leland Keller). Sechrest admitted, in his statement to the police, that, after he killed Maggie, he removed her clothing and attempted to have sexual intercourse with her, and, when he was unable to do that, he masturbated, and ejaculated onto her body. See Exhibit 147, pp. 38-43. Given the sexual aspects of the killings, the prosecution had reason to inform the jury that the evidence indicated that Sechrest was bisexual, to show that he might have been sexually aroused by the female victims; if the jury were left to believe that Sechrest was purely homosexual, they might have been inclined to doubt that Sechrest could have been sexually aroused by either or both of the two girls.

Moreover, the court finds that the evidence regarding the acts of sexual bondage, engaged in by Sechrest and Sportsman, was relevant, and was a fair subject of comment and argument by the prosecutor. See discussion of Ground 2A, supra. There was evidence showing that a leash was found near Maggie's body. See Exhibit 44, pp. 5, 9 (testimony of Don Means). A hair was found on the leash, and that hair was similar to hairs found in Sechrest's car. See Exhibit 42, pp. 20-25 (testimony of Robert Thompson). Sechrest admitted, in his statement to the police, that he took off Maggie's clothing, and, after he killed her, attempted to have sexual intercourse with her, and that, when he was unable to do that, he masturbated, and ejaculated onto her body. See Exhibit 147, pp. 38-43 (Sechrest's statement to the police). In view of this evidence, testimony indicating that Sechrest had previously engaged in acts of bondage for sexual pleasure was relevant, and the prosecution's comments and arguments regarding that testimony were not improper.

On the other hand, the court does find that the prosecution's comments about Sportsman—that he was "a fish out of water," and "a woman in a man's body," and that he spoke in a "little effeminate way"—were improper. The court finds, though, that Sechrest was not prejudiced by those comments. Sportsman was subpoenaed and called as a witness by the prosecution. His testimony supported the prosecution's case, and tended to inculpate Sechrest. The prosecution's improper comments about Sportsman had no effect on the outcome of Sechrest's trial. In view of the strength of the evidence of Sechrest's guilt (see discussion of Ground 4I, below), the court finds that those improper comments did not infect Sechrest's trial with unfairness, see Hall, 935 F.2d at 165, and did not have "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 638, 113 S.Ct. 1710.

The court will deny habeas corpus relief with respect to Ground 4D.

Ground 4E

In Ground 4E, Sechrest claims that the prosecutor "improperly commented on the victim impact of this crime, and invented evidence to support his opinion." Fourth Amended Petition, p. 33. Specifically, Sechrest complains of the following arguments of the prosecutor:

The claim in Ground 4E is not a claim remanded to this court by the court of appeals. In his second amended petition, Sechrest did not complain of any of these arguments of the prosecutor. See Second Amended Petition, pp. 44-50; see also Fourth Amended Petition, p. 34, lines 3-4 ("[T]hese specific instances of misconduct were not alleged in the second amended petition.").

Sechrest argues that while these particular alleged instances of prosecutorial misconduct were not specifically alleged in the second amended petition, "they are more instances of the same type of misconduct already alleged and this Court must consider them in the context of the cumulative nature of the state's pervasive misconduct during trial." Fourth Amended Petition, p. 34, lines 4-6. However, there was no claim in the second amended petition that the prosecutor "improperly commented on the victim impact of this crime, and invented evidence to support his opinion." Id., p. 33, lines 7-8; see also Second Amended Petition, pp. 44-50. This is a new claim, one not remanded to this court for resolution. The remand of claims of prosecutorial misconduct was not an invitation to Sechrest to raise new claims, asserting kinds of prosecutorial misconduct not before alleged. The claim in Ground 4E is beyond the scope of the remand, and the court rejects it on that basis.

Even if the court were to address the merits of Ground 4E, however, the court would deny Sechrest's claim.

For the most part, the statements and argument of the prosecutor, complained of in Ground 4E, were not misconduct. It is well established that the prosecution is allowed to argue what inferences might reasonably be drawn from the evidence. See United States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir.2005) ("[W]e have recognized that prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence...." (citation and internal quotations omitted)); United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir.1995); United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993).

The prosecutor's arguments were, however, improper to the extent that he asked the jurors to imagine the terror experienced by Maggie and Carly. That argument appears to have been calculated to inflame the passions of the jury, and it had no proper place in the prosecutor's closing argument. However, in view of the strength of the evidence of Sechrest's guilt (see discussion, below, regarding Ground 4I), the court finds that these improper arguments of the prosecutor did not infect Sechrest's trial with unfairness, see Hall, 935 F.2d at 165, and did not have "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 638, 113 S.Ct. 1710.

The court will deny habeas corpus relief with respect to Ground 4E.

Ground 4F

In Ground 4F, Sechrest claims that the prosecutor committed misconduct by misstating the law in his closing argument. Fourth Amended Petition, p. 34.

In particular, Sechrest first claims that the prosecutor improperly "described reasonable doubt as having a feeling `in your heart that you know he did what he is accused of.'" Fourth Amended Petition, p. 34, citing Exhibit 42, p. 81.

The claim in Ground 4F is not a claim remanded to this court by the court of appeals. In his second amended petition, Sechrest did not complain of this argument by the prosecutor. See Second Amended Petition, pp. 44-50. There was no claim in the second amended petition that the prosecutor misstated the reasonable doubt standard. See id. This claim, then, is beyond the scope of the remand, and the court rejects it on that basis.

Even if the court were to consider this claim, however, the court finds that the prosecutor's argument, taken in context, did not misstate the reasonable doubt standard. In context, the prosecutor's argument was as follows:

Exhibit 42, p. 81, lines 5-15. While the prosecutor added to the definition of "reasonable doubt" in a way that this court does not condone, the prosecutor did, in the course of his argument, refer the jurors to the court's jury instruction. This argument by the prosecutor was not so misleading as to infect Sechrest's trial with unfairness. See Hall, 935 F.2d at 165.

Next, in Ground 4F, Sechrest claims that the prosecutor "omitted an element of proof from the jury's consideration by instructing the jury that the `state of mind of the defendant is not before you.'" Fourth Amended Petition, p. 34, citing Exhibit 34, p. 82. The court finds this claim to be without merit.

Again, Sechrest takes the prosecutor's argument out of context. The following is the argument of the prosecutor, in context:

Exhibit 42, p. 82, lines 6-15. While the language used by the prosecutor was arguably too broad, in context it is clear that his point was that there was no insanity defense. This statement by the prosecutor was not unconstitutional prosecutorial misconduct.

In his reply, regarding Ground 4F, Sechrest adds a further claim: that the prosecutor committed misconduct by arguing that the jury could find Sechrest guilty under a felony murder theory. This claim was not asserted in Sechrest's second amended petition, and is, therefore, beyond the scope of the remand. See Second Amended Petition, pp. 44-50. Furthermore, this claim is not even asserted in Sechrest's fourth amended petition, the petition now before the court. Compare Fourth Amended Petition, p. 34 ("Mr. Lane improperly stated the law to the jury in two specific instances.") and Reply, p. 38 ("Mr. Lane improperly stated the law to the jury in three specific instances."). Sechrest has improperly raised this additional ground for relief, for the first time, in his reply. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994) ("A Traverse is not the proper pleading to raise additional grounds for relief."); Rule 2(c)(1) of Rules Governing Section 2254 Cases (the habeas petition must "specify all the grounds for relief available to the petitioner"). The court will not address this claim on its merits.

The court will deny habeas corpus relief on Ground 4F.

Ground 4G

In Ground 4G, Sechrest claims that the prosecutor "improperly told the jury that they must send a message to the community and improperly pressured the jury to convict." Fourth Amended Petition, p. 34. Sechrest complains of the following arguments of the prosecutor, in his closing arguments:

Fourth Amended Petition, pp. 34-35.

There was no misconduct in the prosecutor asking the jurors to be honest to themselves, honest to their oath, and honest to their community. There also was no misconduct in the prosecutor asking the jurors to do their duty. Sechrest has not cited any authority holding any of these statements of the prosecutor to be improper.

However, the prosecutor's appeal to the jury to act as the "conscience of the community was improper." See United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984). The prosecutor's appeal to the jury to send a message was also improper. See People of Territory of Guam v. Quichocho, 973 F.2d 723, 727 (9th Cir.1992). Nevertheless, in view of the overwhelming evidence of Sechrest's guilt (see discussion, below, regarding Ground 4I), and the relatively limited nature of these improper arguments, the court finds that these improper arguments did not infect Sechrest's trial with unfairness, see Hall, 935 F.2d at 165, and did not have "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 638, 113 S.Ct. 1710.

The court will deny habeas corpus relief with respect to Ground 4G.

Ground 4H

In Ground 4H, Sechrest claims that the prosecutor "improperly invoked God and the Bible." Fourth Amended Petition, p. 35. Sechrest complains of the following, in the prosecutor's closing argument:

Fourth Amended Petition, pp. 35-36.

Sechrest cites Sandoval v. Calderon, 241 F.3d 765 (9th Cir.2000), in support of this claim. In Sandoval, the court of appeals affirmed the district court's grant of habeas corpus relief with respect to the petitioner's death sentence, on account of the prosecutor's improper invocation of religion. There is, however, no comparison between the forceful arguments made by the prosecutor in Sandoval, summoning religious authority as justification for imposition of the death penalty, and the passing, rather incidental, references to religion by the prosecutor in this case. In Sandoval, the court of appeals described the prosecutor's religious arguments as follows:

Sandoval, 241 F.3d at 770, 776. The court of appeals stated that the prosecutor's religious arguments undercut the principle that "the jury's decision is to be based upon the evidence presented at trial and the legal instructions given by the court," and violated "the Eighth Amendment principle that the death penalty may be constitutionally imposed only when the jury makes findings under a sentencing scheme that carefully focuses the jury on the specific factors it is to consider in reaching a verdict." Id. at 776. The court stated that "[a]rgument involving religious authority also undercuts the jury's own sense of responsibility for imposing the death penalty." Id. at 777. The court found there to be constitutional error, and went on: "To warrant habeas relief, Sandoval must show that the prosecutor's improper argument `had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Id. (quoting Brecht, 507 U.S. at 638, 113 S.Ct. 1710, and Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Noting that the prosecutor's argument, invoking religion, was "eloquent, powerful, and unmistakably Biblical in style," and that it "cloaked the State with God's authority," the court of appeals stated that "[t]here could be no clearer an invocation of divine authority to direct a jury's verdict." Id. at 778-79, 66 S.Ct. 1239. The court stated that, with respect to the issue of the death penalty, "[t]his [was] not a case where the evidence overwhelmingly supported the jury's verdict." Id. at 779, 66 S.Ct. 1239. The court held that it had "grave doubts about the harmlessness of the error," and therefore affirmed the grant of habeas corpus relief with respect to the death penalty. Id. at 780, 66 S.Ct. 1239.

The references to religion by the prosecutor in this case are not at all comparable to the arguments of the prosecutor in Sandoval. All three of the comments of the prosecutor put at issue by Sechrest— "thank the Good Lord;" "by God;" "out of the mouths of babes"—are figures of speech. While those figures of speech derive from religious sources, and while they include mention of God and the Bible, they actually carried little religious meaning. The prosecutor did not convey any religious doctrine to the jury, and he did not summon religious authority as support for his position. There was no unconstitutional prosecutorial misconduct in these inconsequential references to religion by the prosecutor in this case.

The court will deny habeas corpus relief with respect to Ground 4H.

Ground 4I

In Ground 4I, Sechrest asserts:

Fourth Amended Petition, p. 36.

Sechrest's claims of prosecutorial misconduct do not, in this court's view, come anywhere near describing "deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct" that could have so undermined the integrity of the trial as to warrant habeas relief whether or not it substantially influenced the jury's verdict. See Brecht, 507 U.S. at 638 n. 9, 113 S.Ct. 1710.

Sechrest's prosecutorial misconduct claims warrant a grant of habeas relief if, in light of the record as a whole, the alleged error "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 638, 113 S.Ct. 1710; Karis v. Calderon, 283 F.3d 1117, 1129 (9th Cir.2002) (prosecutorial misconduct subject to Brecht harmless error analysis).

The trial court gave the following jury instruction:

Exhibit 46, Instruction 22. In assessing the effect of the prosecutor's improper arguments, the court presumes that the jury followed this instruction. See Darden v. Wainwright, 477 U.S. 168, 182, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (holding under the Due Process Clause that defendant was not prejudiced by prosecutor's improper statements in closing argument, in part because "[t]he trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence"); Cheney v. Washington, 614 F.3d 987, 998 (9th Cir. 2010).

The most powerful evidence against Sechrest was his statement to the police, in which he admitted to murdering Carly and Maggie. See Exhibits 146, 147 (transcript). In that statement, Sechrest admitted that on May 14, 1983, he picked up Maggie and Carly at Meadowood. See Exhibit 146, pp. 1-7. He said he asked Maggie if she wanted to go for a ride, and she agreed. Id. He then drove to Lagomarsino Canyon, with Carly and Maggie. Id. According to Sechrest, the three of them were walking in the hills, rock hunting, when Carly fell backward and hit her head. Id. at 7-8; Exhibit 147, pp. 19-21. Sechrest said he thought Carly was dead. Exhibit 146, pp. 7-10; Exhibit 147, pp. 21-22. Sechrest said Maggie began to "freak out on him," and was "between hysterical and crying." Exhibit 147, pp. 23-24. Sechrest stated that he knew it was wrong to be up in the hills with the girls. Id. at 24. Sechrest said that Maggie began to run, and he panicked, caught her, and hit her on the back of the head with a rock. Exhibit 146, pp. 10-13; Exhibit 147, pp. 24-25. According to Sechrest, after hitting Maggie with the rock three or four more times after she fell, he went to his car and got a shovel to bury the girls. Exhibit 146, pp. 14-15; Exhibit 147, p. 29. Sechrest said he returned to where Carly was lying, and thought she was still alive because she had moved, so he killed her by striking her in the head with the edge of the shovel. Exhibit 147, pp. 30-31. Sechrest said that he then went to where Maggie was laying, and found that she, too, had moved; he said that he then might have hit her with the shovel. Exhibit 147, p. 35. Sechrest said that, after he killed Maggie, he took off her clothing and attempted to have sexual intercourse with her; according to Sechrest, when he was unable to do that, he masturbated, and ejaculated onto her stomach. Id. at 38-43. Sechrest said that he covered the bodies with loose dirt, and left the scene. Id. at 43-50.

A recording of Sechrest's statement was played for the jury, and a transcript of it was provided to the jury. See Testimony of Robert Bogison, Exhibit 42, pp. 45-55; see also Exhibits 146, 147. The court of appeals held that Sechrest's statement was not taken in violation of the rules established by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sechrest, 549 F.3d at 805-07.

A nine-year-old girl named Tanya Wagner testified that she skated with Maggie and Carly at Meadowood Mall on May 14, 1983. Testimony of Tanya Wagner, Exhibit 43, pp. 56-66. Tanya testified that after skating the three of them had lunch at a restaurant in the mall. Id. at 58-59. After eating lunch, on their way back to the rink, the girls saw a man that Maggie said was her babysitter. Id. at 59-60. The man said to Maggie that they had better be going. Id. at 60. Tanya went back to the rink to skate, and after she resumed skating, she saw Maggie come into the rink to get her ice skates and skate guards, and then she saw Maggie leave the rink in a hurry. Id. at 60, 66. Tanya identified Sechrest as the man she saw at the skating rink, whom Maggie described as her babysitter. Id. at 62.

Anton Paul Sohn, M.D., testified that he performed the autopsies of Maggie and Carly. Testimony of Anton Paul Sohn, M.D., Exhibit 43, pp. 73-100. Dr. Sohn testified that, in his opinion, Maggie and Carly both died of blunt force trauma to the head. Id. at 76. Dr. Sohn testified that, in his opinion, it was highly unlikely that Carly could have fallen and killed herself in the location where her body was found. Id. at 80. Dr. Sohn found that numerous blows were delivered to the right side of each girl's head. Id. at 76, 81-86. Dr. Sohn testified that each girl's skull had fractures that could have been caused by rocks, and also fractures that could have been caused by a shovel. Id.

Detective Don Means, of the Washoe County Sheriff's Department, testified that on June 14, 1983, he participated in a search, pursuant to a warrant, at Sechrest's residence. Testimony of Don Means, Exhibit 44, pp. 11-13. The searching officers found three shovels. Id. Robert Thompson, a technician from the Washoe County Crime Laboratory, testified that one of the shovels had human blood on it. Testimony of Robert Thompson, Exhibit 42, pp. 16-18.

Thompson also testified that he found human hair on a dog leash that was found near Maggie's body. Id. at 20. He testified that one of the hairs on the dog leash was similar to a number of hairs found in Sechrest's car, but was not similar to the hair of Maggie and Carly, and was not similar to the hair of Daniel Sportsman. Id. at 20-24, 31-34. Thompson testified that another hair found on the dog leash was similar to Carly's hair. Id. at 31-32.

Daniel Sportsman testified that he lived with Sechrest and his grandmother, Zella Weaver, and that he and Sechrest were lovers. See Testimony of Daniel Franklin Sportsman, Exhibit 44, p. 36. Sportsman testified that on May 14, 1983, Sechrest drove him to his work place and dropped him off at about 1:00 p.m. Id. at 44-45. He testified that Sechrest returned, and picked him up at around 4:00 or 4:30 p.m. Id. at 46. Sportsman testified that when he and Sechrest got home, Sechrest went into the bathroom and washed his pants in the sink, and then hung them out on a line to dry; Sportsman testified that this was highly unusual. Id. at 47-48. Sportsman testified that, later in the afternoon or evening on May 14, 1983, he learned that Zella had not been able to find Maggie when she went to pick her up at Meadowood. Id. at 50. Sportsman testified that on the following day, May 15, 1983, he and Sechrest went to the Schindlers' home and helped with the search for the missing girls. Id. at 50-51. Sportsman testified that, around the time of the disappearance of Carly and Maggie, Sechrest changed his appearance by cutting his hair and shaving. Id. at 51-55.

Sportsman described himself as homosexual; he described Sechrest as bisexual. Id. at 57-58. Sportsman testified that he and Sechrest had engaged in acts of bondage. Id. at 58-60. He said that on two occasions Sechrest had tied him up and had then masturbated and ejaculated. Id.

Sportsman testified that Sechrest sometimes kept in his car the shovel that was found at his residence with human blood on it. Id. at 60-61. Sportsman testified that after the disappearance of Maggie and Carly, he helped Sechrest clean Sechrest's car, and then Sechrest sold it. See id. at 60-63; see also Exhibit 42, p. 64. Sportsman testified that, around the time of the girls' disappearance, Sechrest changed his hair style—he cut off his shoulder-length hair, and shaved off some of his facial hair. Exhibit 44, pp. 51-53. Sportsman testified that on about June 13 or 14, 1983, Sechrest told him that he, Sechrest, "might have had something to do with" the disappearance of Maggie and Carly. Id. at 81-83.

Sechrest's stepfather testified that Sechrest had lived for a time in Lockwood, Nevada, and that Sechrest was very familiar with the hills in the area where the missing girls' bodies were found. Testimony of Jacob R. Presser, Exhibit 44, pp. 105-107.

Sechrest's position is that he did not have the requisite mental state for first degree murder, because he was in a panic after Carly fell and hurt herself, and he did not intend to kill Carly and Maggie. See Reply, pp. 5-7. The court finds that argument to be weak, in light of admissions made by Sechrest in his statement to the police.

In Sechrest's statement, he described how he killed Carly and Maggie, and spoke about his motivations, and about what he did immediately after killing the girls; in that statement, there is ample evidence that he did, in fact, intend to kill Carly and Maggie, and that he killed them intentionally, willfully, deliberately, and with premeditation.

The following is how Sechrest described his attack on Maggie, after Carly fell:

Exhibit 146, pp. 10, 13. Later Sechrest added the following:

Exhibit 147, p. 26. Sechrest admitted that he hit Maggie in the head because he had to keep her quiet and keep her from telling anybody what had happened, so he would not get in trouble for what happened to Carly. Sechrest spoke further about beating Maggie, making it quite clear that his intent was to kill her:

Id. at 12 (emphasis added). This is strong evidence that Sechrest did, in fact, intend to kill Maggie. Regardless of what his intent was when these events began, by this point, when Sechrest was beating Maggie on the head with a rock, according to his admission, he intended to kill her. Sechrest described in some detail how he beat Maggie:

Exhibit 147, pp. 27-28. The manner in which Sechrest beat Maggie speaks to his intent.

After he beat Maggie in the head with the rock, according to Sechrest, he returned to his vehicle to get a shovel to bury the girls. Exhibit 147, pp. 28-30. He then described what happened when he returned, with the shovel, to where Carly was laying on the ground:

Exhibit 147, pp. 30-31. So, here, Sechrest admitted that, because Carly had moved, and was apparently still alive, he struck her with the shovel; plainly, he intended to kill her.

But even more directly, later in his statement, Sechrest admitted outright that he intended to kill the girls:

Exhibit 147, pp. 57-58 (emphasis added). Sechrest's statement, then, contains not only admissions that he killed Carly and Maggie, and graphic descriptions of how he did so, but also unusually direct admissions that he intended to kill them.

Moreover, immediately after killing the two girls, Sechrest's actions were inconsistent with his claim that he killed in a panic, without intent. According to Sechrest, after killing the girls, he took the time to undress Maggie and attempt to have sexual intercourse with her dead body, and, when he could not do that, he masturbated, to the point of ejaculation, and ejaculated onto Maggie's bare stomach. Exhibit 147, pp. 38-43. It is unimaginable that reasonable jurors could find this to be the conduct of a person who just killed the two little girls in a panic, without intent.

In light of the detailed admissions in Sechrest's statement, regarding the manner in which he killed Carly and Maggie, regarding his intentions when he killed them, and regarding his actions immediately after killing them, the question of his guilt, including the question whether he had the intent to kill, was not a close question. The evidence was overwhelming that Sechrest killed Carly and Maggie intentionally, willfully, deliberately, and with premeditation.

Taking cumulatively the prosecutorial misconduct found by the court, in the discussions above regarding Grounds 4A, 4D, 4E, 4F, and 4G,6 the court finds that the prosecutorial misconduct did not have a substantial and injurious effect or influence in determining the jury's verdict. It light of the strong evidence of Sechrest's guilt, it is unimaginable that the guilty verdicts in this case could have been affected, in any substantial way, by the scattered, and relatively benign, improper arguments of the prosecutor described above.

Ground 5

In Ground 5, Sechrest claims that he "was denied a fair trial because of the Court's failure to sua sponte object to the prosecutor's inflammatory and improper comments regarding possible executive clemency after the imposition of the sentence." Fourth Amended Petition, p. 37.

This claim has been resolved, in Sechrest's favor, by the court of appeals. Sechrest, 549 F.3d at 807-15. The court will grant Sechrest habeas corpus relief, with respect to his death sentences, as directed by the court of appeals.

Ground 6

In Ground 6, Sechrest claims that the trial court's "denial of the motion to appoint second defense counsel for Mr. Sechrest was an abuse of discretion and denied Mr. Sechrest the effective assistance of counsel and a fair trial in violation of the Sixth Amendment of the constitution." Fourth Amended Petition, p. 38.

This claim, too, has been resolved. This court addressed this claim, previously, and denied it, see Order entered April 19, 2004 (docket #136), p. 23, and the court of appeals did not remand it for further consideration. See Sechrest, 549 F.3d 789; see also Fourth Amended Petition, p. 38.

Ground 7

Ground 7 has two parts. In Ground 7A, Sechrest claims that "[t]he trial court erred by allowing into evidence Mr. Sechrest's admissions." Fourth Amended Petition, p. 39. This claim was previously resolved by this court, in favor of the respondents. See Order entered April 19, 2004, pp. 23-35. The court of appeals affirmed that ruling. See Sechrest, 549 F.3d at 805-07; see also Fourth Amended Petition, p. 39.

In Ground 7B, Sechrest claims that "[t]he prosecutor committed misconduct by soliciting testimony regarding Mr. Sechrest's invocation of his Fifth Amendment rights." Fourth Amended Petition, p. 39. Sechrest has withdrawn this claim. Id. The court will, therefore, deny habeas corpus relief on Ground 7B.

Ground 8

In Ground 8, Sechrest claims that his constitutional rights were violated because the trial court gave the following jury instruction, regarding the meaning of "reasonable doubt," in the guilt phase of his trial:

Fourth Amended Petition, p. 40. Sechrest also makes this claim regarding the same instruction as given in the penalty phase of his trial, but, with respect to the penalty phase of his trial, Sechrest concedes that the claim is moot, in view of the ruling of the court of appeals in this case. Id. (citing Sechrest, 549 F.3d at 817).

The constitutionality of a reasonable doubt jury instruction depends on "`whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet' the requirements of due process." Ramirez v. Hatcher, 136 F.3d 1209, 1211 (9th Cir.1998) (quoting Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)). The instruction on reasonable doubt used at Sechrest's trial was the same instruction challenged in Ramirez. In Ramirez, the court of appeals criticized the instruction, but nonetheless upheld it as constitutional. Ramirez, 136 F.3d at 1214-15; see also Nevius v. McDaniel, 218 F.3d 940, 944-45 (9th Cir.2000). Therefore, the law in this circuit forecloses habeas relief based on that jury instruction. See Reply, p. 42 (Sechrest "recognizes that this Court is bound to follow Ramirez.").

In his reply, regarding Ground 8, Sechrest adds a further claim: that his constitutional rights were violated because the trial court gave a jury instruction defining first degree murder in a manner that allowed for his conviction on bases not charged in the information. See Reply, pp. 45-47. This claim was not asserted in Sechrest's second amended petition, and is, therefore, beyond the scope of the remand. See Second Amended Petition. Furthermore, this claim is not even asserted in Sechrest's fourth amended petition, the petition now before the court. See Fourth Amended Petition. Sechrest has improperly raised this additional ground for relief, for the first time, in his reply. See Cacoperdo, 37 F.3d at 507 ("A Traverse is not the proper pleading to raise additional grounds for relief."); Rule 2(c)(1) of Rules Governing Section 2254 Cases (the habeas petition must "specify all the grounds for relief available to the petitioner"). The court will not address this claim on its merits.

The court will deny habeas corpus relief on Ground 8.

Ground 9

In Ground 9, Sechrest claims that the trial court "failed to instruct the jury that mitigation did not have to be found unanimously by the jury." Fourth Amended Petition, p. 43.

This claim relates only to Sechrest's death sentences, and not to the guilt phase of his trial; therefore, in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 43 (Sechrest concedes claim is moot).

Ground 10

In Ground 10, Sechrest claims that "[t]he attorney general committed prosecutorial misconduct by failing to comply with this Court's order to deliver a copy of their entire file to counsel upon the filing of the initial district court habeas petition." Fourth Amended Petition, p. 44.

Sechrest withdraws this claim. See id. Therefore, the court will deny relief on it.

Ground 11

In Ground 11, Sechrest claims that his "constitutional rights were violated by the Nevada Supreme Court's ruling that there was sufficient evidence to support a jury verdict that Mr. Sechrest kidnaped the victims, a finding that was not supported by sufficient evidence at trial." Fourth Amended Petition, p. 45.

Sechrest withdraws this claim. See id. Therefore, the court will deny relief on it.

Ground 12

In Ground 12, Sechrest claims that he "was deprived of due process of the law, equal protection and a reliable sentence by the introduction of evidence during the penalty phase of trial that he had engaged in homosexuality." Fourth Amended Petition, p. 46.

This claim relates only to the penalty phase of Sechrest's trial, and not to the guilt phase of his trial; therefore, in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 46 (Sechrest concedes claim is moot).

Ground 13

In Ground 13, Sechrest claims that "[d]efense counsel's failure to effectively `life qualify' all jurors deprived Mr. Sechrest of a fair trial and effective assistance of counsel in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments." Fourth Amended Petition, p. 47.

This claim relates only to the penalty phase of Sechrest's trial, and not to the guilt phase of his trial; therefore, in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 t(court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 47 (Sechrest concedes claim is moot).

Ground 14

In Ground 14, Sechrest claims that his constitutional rights were violated because his "capital trial, sentencing and review on direct appeal were conducted before state judicial officers who failed to conduct fair and adequate appellate review." Fourth Amended Petition, p. 48.

The supporting facts alleged by Sechrest, in support of Ground 14, relate only to Sechrest's death sentences. Id. Therefore, this claim relates only to the penalty phase of Sechrest's trial, and not to the guilt phase of his trial; in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Reply, p. 47 (Sechrest concedes claim is moot, and withdraws it).

Ground 15

In Ground 15, Sechrest claims that his constitutional rights were violated by the "combined effect of all of the errors committed in the capital proceedings against Mr. Sechrest." Fourth Amended Petition, p. 49.

As the only error found by the court was prosecutorial misconduct, the analysis of this claim is the same as the analysis in the discussion of Ground 4I. Taking cumulatively the prosecutorial misconduct found by the court—see discussion of Grounds 4A, 4D, 4E, 4F, and 4G—the court finds that the prosecutorial misconduct did not have a substantial and injurious effect or influence in determining the jury's verdict, and that habeas corpus relief is not warranted. See discussion of Ground 4I, supra.

The court will deny habeas corpus relief with respect to Ground 15.

Ground 16

In Ground 16, Sechrest claims that his constitutional rights were violated "by the sentence of death imposed by the Nevada judicial process." Fourth Amended Petition, p. 50.

This claim relates only to the penalty phase of Sechrest's trial, and not to the guilt phase of his trial; therefore, in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 50 (Sechrest concedes claim is moot).

Ground 17

In Ground 17, Sechrest claims that execution by lethal injection "would violate the constitutional prohibition against cruel and unusual punishment." Fourth Amended Petition, p. 51.

This claim also relates only to the penalty phase of Sechrest's trial, and not to the guilt phase of his trial; therefore, in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 51 (Sechrest concedes claim is moot).

Ground 18

In Ground 18, Sechrest claims that he "was denied of his right to be free of cruel and unusual punishment by the imposition of the sentence of death." Fourth Amended Petition, p. 52.

This claim, too, relates only to the penalty phase of Sechrest's trial, and not to the guilt phase of his trial; therefore, in view of the court of appeals' ruling that Sechrest is entitled to habeas corpus relief with regard to his death sentences, this claim is moot, and the court will, for that reason, deny relief on it. See Sechrest, 549 F.3d at 805 n. 5; see also id. at 817 n. 16 (court of appeals declined to reach penalty phase claim, having already concluded that Sechrest is entitled to resentencing); see also Fourth Amended Petition, p. 52 (Sechrest concedes claim is moot).

Certificate of Appealability

The court has sua sponte evaluated Sechrest's claims, with regard to the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c); see also Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts; Fed. R.App. P. 22(b).

"A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir.2000).

Applying this standard, the court finds that reasonable jurists could debate the court's resolution of Ground 4A, and the court, therefore, grants Sechrest a certificate of appealability with respect to that claim.

IT IS THEREFORE ORDERED that respondents' "Motion to File a Pleading in Excess of Twenty Pages" (docket # 202) is GRANTED. The court grants respondents leave of court to file their 28-page response to petitioner's reply (docket # 203). As the response to reply has already been filed, the Clerk of the Court need take no action in this regard.

IT IS FURTHER ORDERED that petitioner's Motion for Evidentiary Hearing (docket # 194) is DENIED.

IT IS FURTHER ORDERED that petitioner's fourth amended petition for writ of habeas corpus (docket # 179) is DENIED with respect to Grounds 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I, 2J, 2K, 2L, 2M, 2N, 2O, 2P, 2Q, 2R, 3, 4A, 4B, 4C, 4D, 4E, 4F, 4G, 4H, 4I, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 of the fourth amended petition.

IT IS FURTHER ORDERED that petitioner's fourth amended petition for writ of habeas corpus (docket # 179) is GRANTED with respect to Grounds 1 and 5 of the fourth amended petition.

IT IS FURTHER ORDERED that within 120 days of the date of entry of this order the State of Nevada shall either (1) grant petitioner a new penalty phase trial, and initiate proceedings relative to that new penalty phase trial, or (2) vacate petitioner's death sentences and impose upon him non-capital sentences, consistent with law.

IT IS FURTHER ORDERED that petitioner is granted a certificate of appealability with respect to Ground 4A of his fourth amended petition for writ of habeas corpus.

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