ORDER

JAMES C. MAHAN, District Judge.

Petitioner Smith has filed a motion seeking relief from the order and judgment denying his petition for writ of habeas corpus. ECF No. 198. Relying on Fed. R. Civ. P. 59(e), he argues that this court should reconsider: (1) its ruling that alleged ineffective assistance of post-conviction counsel cannot overcome the default of his claims of ineffective assistance of appellate counsel; (2) its denial of Claims Eight, Ten, and Eleven on the merits; (3) its ruling that certain claims were unexhausted on direct appeal pursuant to Nevada's mandatory review statute; (4) its dismissal of Claim Twenty-five; (5) its treatment of his claims of ineffective assistance of trial counsel under Martinez v. Ryan, 132 S.Ct. 1309 (2012); and (6) its denial of claims regarding the state court's alleged lack of jurisdiction (Claims One and Two). In the alternative, Smith asks the court to grant a certificate of appealability for the foregoing issues.

I. Rule 59(e) standard.

Under Federal Rule of Civil Procedure 59(e), a party may move to have the court amend its judgment within twenty-eight days after entry of the judgment. "A motion for reconsideration under Rule 59(e) `should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999) (emphasis added)). "Since specific grounds for a motion to amend or alter are not listed in the rule, the district court enjoys considerable discretion in granting or denying the motion." Id. at 1255, n.1 (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed.1995)). Even so, amending a judgment after its entry remains "an extraordinary remedy which should be used sparingly." Id.

II. Discussion.

1. Ineffective assistance of appellate counsel claims

Smith argues that this court erred when it concluded that alleged ineffective assistance of postconviction counsel cannot serve as cause to excuse the default of claims of ineffective assistance of appellate counsel. He points to the decision in Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), which was issued subsequent to this court's procedural default ruling. In that case, the Ninth Circuit expanded the holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), to include claims of ineffective assistance of appellate counsel: "We therefore conclude that the Martinez standard for `cause' applies to all Sixth Amendment ineffective-assistance claims, both trial and appellate, that have been procedurally defaulted by ineffective counsel in the initial-review state-court collateral proceeding." Nguyen, 736 F.3d at 1295 (emphasis added).

Smith contends that, in light of Nguyen, this court must reconsider whether he can show cause and prejudice to excuse the default of certain ineffective assistance of appellate counsel claims — specifically, claims based on counsel's failure to raise on direct appeal the claims asserted in his federal petition as Claims Twelve and Thirteen, Claim Twenty, Claims Sixteen and Twenty-three, and Claim Twenty-seven. For the following reasons, this court does not agree.

To begin with, Smith did not allege in his federal petition that appellate counsel was ineffective for failing to raise Claims Twelve and Thirteen. ECF No. 40, p. 120-21. He cannot claim that this court should excuse the procedural default of a claim he did not include in his federal petition.

In Claim Twenty, Smith alleged that his constitutional rights were violated as a result of the trial court's failure to instruct the jury that it could not consider "other matter" evidence under Nev. Rev. Stat. § 175.552(3) before it first found Smith eligible for the death penalty — i.e., before it found the existence of an aggravating circumstance beyond a reasonable doubt and that the aggravating circumstance was not outweighed by mitigating evidence. According to Smith, the decision in Hollaway v. State, 6 P.3d 987 (Nev. 2000), demonstrates a reasonable probability that his direct appeal would have succeeded if his appellate counsel had raised the issue.

The facts in Hollaway, however, bear little resemblance to those in this case. The aggravating circumstance in Hollaway was the robbery of a gas station attendant at knife point that resulted in a conviction for second-degree armed robbery and false imprisonment (Hollaway, 6 P.3d at 990), whereas the aggravating circumstance in Smith's case was the mutilation of his daughter, with evidence establishing that he struck her in the head with a claw hammer at least 16 times prior to strangling her (ECF No. 109-4, pp. 21-30, 39-40, 8-10, 37-381). Moreover, the Nevada Supreme Court's reversal in Hollaway was based, in part, on the likely prejudice that resulted from "the unprovoked electric shocking of a capital defendant at his penalty hearing." Hollaway v. State, 6 P.3d at 997. The other case Smith relies upon — Butler v. State, 102 P.3d 71 (Nev. 2004) — is also distinguishable inasmuch as the Nevada Supreme Court, in concluding that there was a strong likelihood that Butler was prejudiced by a misleading "other matter" instruction, "stress[ed] that Butler presented compelling evidence of extreme neglect and abuse in his childhood, which the jurors obviously recognized in finding several mitigating circumstances, while the State alleged and the jury found only one aggravating circumstance." Butler, 102 P.3d at 83.

Claim Sixteen and Twenty-three consist of allegations that the trial court's jury instructions on reasonable doubt (Claim Sixteen) and "equal and exact justice" (Claim Twenty-three) impermissibly lowered the State's burden of proof. Appellate counsel was not ineffective for not raising these claims because the instructions have been routinely upheld by state and federal courts. Leonard v. State, 969 P.2d 288, 296 (Nev. 1998) (upholding instruction on equal and exact justice); Buchanan v. State, 69 P.3d 694, 708 (Nev. 2003) ("This court has repeatedly reaffirmed the constitutionality of Nevada's reasonable doubt instruction."); Ramirez v. Hatcher, 136 F.3d 1209, 1215 (9th Cir. 1998) (holding that the questionable language in Nevada's reasonable doubt instruction "did not render the charge unconstitutional"). In like fashion, there is not a reasonable probability that the Nevada Supreme Court would have found merit in Smith's claim that appellate counsel was ineffective for failing to challenge his conviction and sentence because his proceedings were conducted before elected judges (i.e., Claim Twenty-seven). See Nika v. Baker, 59776, 2014 WL 3784142, *2 (Nev. July 30, 2014).

In light of the foregoing, this court did not error by not excusing the procedural default of Smith's ineffective assistance of appellate counsel claims.

2. Denial of Claims Eight, Ten, and Eleven

Smith argues that this court committed errors of law or made erroneous factual findings in the process of denying Claims Eight, Ten, and Eleven on the merits.2 For the most part, however, he merely repeats or elaborates upon his prior arguments with respect to these claims. He has not demonstrated the existence of clear error. See U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.Cal. 2001) (explaining that a party seeking reconsideration must do more than disagree with the court's decision or recapitulate that which the court has previously considered). Thus, Smith is not entitled to Rule 59(e) relief with respect to the court's denial of the claims.

3. Exhaustion pursuant to Nevada's mandatory review statute

Smith challenges this court's analysis as to whether some of his claims were exhausted on direct appeal by virtue of the Nevada Supreme Court's mandatory review of death sentences under Nev. Rev. Stat. § 177.055. Nev. Rev. Stat. § 177.055 requires the state supreme court to consider whether the evidence supported the finding of the aggravating circumstances; whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and whether the death sentence was excessive. Relying on Comer v. Schriro, 463 F.3d 934, 954-56 (9th Cir. 2006), and citing to Sechrest v. Ignacio, 943 F.Supp. 1245, 1250 (D.Nev. 1996), this court determined that Smith claims were not exhausted on direct appeal because (1) neither the statute itself nor Nevada case law obligates the Nevada Supreme Court to apply federal law standards in conducting its review under Nev. Rev. Stat. § 177.055 and (2) Smith had not shown that any of the claims at issue are "clearly encompassed" within the scope of Nev. Rev. Stat. § 177.055 and "readily apparent" in the record reviewed by the Nevada Supreme Court. ECF No. 162, p. 14.

According to Smith, the court's analysis was flawed because it does not offer "any rational reason why Arizona's mandatory review scheme serves to exhaust federal claims under Comer, and Idaho's mandatory review scheme serves to exhaust federal claims under Beam v. Paskett, 3 F.3d 1301, 1305-07 (9th Cir. 1993), but Nevada's mandatory review scheme, which is nearly identical to those in Arizona and Idaho, does not serve to exhaust federal claims." ECF No. 182, p. 5. While this argument addresses the first point above, Smith still has not demonstrated that the particular claims at issue3 were "clearly encompassed" within the scope of Nevada's mandatory review provision and "readily apparent" in the record before the Nevada Supreme Court.

In this regard, this court notes that it addressed three of the claims (Claims Eight, Ten, and Fourteen) on the merits, in any case. Of the remaining claims, a few are arguably within the scope of mandatory review, but this court is not convinced that any of them were obvious from the state court record. Cf. Comer, 463 F.3d at 955-56 (finding that claims based on petitioner's compromised physical and mental condition during sentencing and his absence from a competency hearing were readily apparent from transcripts and videotape before the Arizona Supreme Court). As such, the court did not commit clear error with respect to this issue.

4. Dismissal of Claim Twenty-five

Smith contends that this court should reconsider its decision to dismiss Claim Twenty-five, a claim in which Smith alleged that Nevada's death sentence by means of lethal injection violates the Eighth Amendment. The dismissal of the claim was based on a finding that it was barred by the doctrine of procedural default because Smith had not presented it to the state court until his second state post-conviction proceeding, in which the Nevada Supreme Court dismissed it as untimely-filed under Nevada law. ECF No.162, p. 12. This court rejected Smith's arguments that the procedural default should be excused because of the State's alleged suppression of execution protocols and the absence of a state forum to litigate the claim. Id., p. 24.

As to the latter point, the court cited Roberts v. Arave, 847 F.2d 528, 530 (9thCir. 1988), for the proposition that the apparent futility of presenting a claim to the state court does not constitute cause for procedural default. Smith argues that his was error because Roberts is not on point and the Nevada Supreme Court held, in McConnell v. State, 212 P.3d 307, 310-11 & n.5 (Nev. 2009), that challenges to the Nevada's lethal injection protocol and procedure are not cognizable in a state court. The correct approach, according to Smith, is that found in Harris v. Duckworth, 909 F.2d 1057 (7th Cir. 1990), where the Seventh Circuit held that a petitioner was excused from presenting to the state courts a federal constitutional claim that the Indiana Supreme Court "definitively decid[ed]" it would not entertain in any case. Harris, 909 F.2d.at 1058-59.

As an initial matter, the issue as to whether a claim challenging the constitutionality of Nevada's lethal injection procedures was cognizable in a state post-conviction habeas petition was far from "definitively decided" at the time Smith defaulted the claim. See, e.g., State v. Haberstroh, 69 P.3d 676, 686 (Nev. 2003) (rejecting petitioner's claim because he failed "to provide any facts demonstrating that pain inflicted during lethal injection is unnecessary or gratuitous"). Even if it was not procedurally defaulted in this court, however, the claim would not, for the reasons that follow, provide a basis for granting relief in this proceeding.

To the extent that it presents a general challenge to lethal injection as a method of execution, Claim Twenty-five is meritless in light of Baze v. Rees, 553 U.S. 35 (2008). In Baze, the Supreme Court, on an appeal from a judgment in a civil rights action, ruled Kentucky's lethal injection protocol to be constitutional. Baze, 553 U.S. at 62-63. The Baze holding essentially forecloses any argument that lethal injection, no matter how administered, is necessarily unconstitutional. It also demonstrates that lethal injection can be administered in a manner that does not constitute cruel and unusual punishment in violation of the Eighth Amendment.

To the extent that Smith challenges the specific protocol employed by the State of Nevada, such a challenge is not cognizable in this federal habeas corpus action. In Nelson v. Campbell, 541 U.S. 637 (2004), a state prisoner sentenced to death filed a civil rights action, under 42 U.S.C. § 1983, alleging that the state's proposed use of a certain procedure, not mandated by state law, to access his veins during a lethal injection would constitute cruel and unusual punishment. Nelson, 541 U.S. at 641. The Supreme Court reversed the lower courts' conclusion that the claim sounded in habeas corpus and could not be brought as a section 1983 action. The Supreme Court ruled that section 1983 was an appropriate vehicle for the prisoner to challenge the particular lethal-injection procedure prescribed by state officials. Nelson, 541 U.S. at 645. The Court stated that the prisoner's suit challenging "a particular means of effectuating a sentence of death does not directly call into question the `fact' or `validity' of the sentence itself [because by altering the lethal-injection procedure] the State can go forward with the sentence." Id. at 644.

In Hill v. McDonough, 547 U.S. 573 (2006), the Court reaffirmed the principles articulated in Nelson, ruling that an as-applied challenge to lethal injection was properly brought by means of a section 1983 action. Hill 547 U.S. at 580-83. Both Nelson and Hill suggest that a section 1983 claim is the more appropriate vehicle for an as-applied challenge to a method of execution. See also Beardslee v. Woodford, 395 F.3d 1064, 1068-69 (9th Cir. 2005) (holding that claim that California's lethal injection protocol violates the Eighth Amendment "is more properly considered as a `conditions of confinement' challenge, which is cognizable under § 1983, than as a challenge that would implicate the legality of his sentence and thus be appropriate for federal habeas review.").

Because an as-applied challenge to a method of execution is more akin to a suit challenging the conditions of custody rather than the constitutionality of the petitioner's custody or sentence, it must be brought as a civil rights action under 42 U.S.C. § 1983. Accordingly, Claim Twenty-five, to the extent that it challenges Nevada's specific execution procedures, is subject to dismissal as not cognizable in this federal habeas corpus action. Smith is not entitled to Rule 59(e) relief with respect to the court's dismissal of the claim.

5. Treatment of ineffective assistance of trial counsel claims under Martinez

In its decision on respondents' motion to dismiss, this court rejected Smith's arguments that Martinez provided cause and prejudice to overcome the procedural default of several of his claims. ECF No. 162, p. 17-24. Smith argues that this court's Martinez analysis was flawed because the court did not adhere to the then-recent holding in Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013), as to showing necessary to meet the substantiality requirement for defaulted ineffective assistance of trial counsel claims.4

In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the United States Supreme Court described the Martinez test as consisting of four requirements:

Trevino, 133 S.Ct. at 1918 (citing and quoting Martinez, 132 S.Ct. at 1318-19, 1320-21). The court of appeals in Detrich noted that, for a claim of ineffective assistance of trial counsel to be "substantial," the petitioner must only to show that the merit of the claim is debatable among reasonable jurists. Detrich, 740 F.3d at 1245 (noting that the Martinez court cited to Miller-El v. Cockrell, 537 U.S. 322 (2003), in discussing substantiality). A plurality of the court sitting en banc also held that "[a] prisoner need not show actual prejudice resulting from his PCR counsel's deficient performance, over and above his required showing that the trial-counsel IAC claim be `substantial' under the first Martinez requirement." Id. at 1245-46.

As to the latter holding, however, the court in Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014), noted that a majority of the Detrich panel rejected that view and concluded instead that, to demonstrate cause, "the petitioner must show that his post-conviction relief counsel was ineffective under Strickland. . . ." Clabourne, 745 F.3d at 376; see also Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). That is, the petitioner must "establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different." Id. at 377.

This was the exact standard that this court employed in its Martinez analysis of Smith's defaulted ineffective assistance of trial counsel claims. See ECF No. 162, p. 18. For all of those claims except for Claim Eighteen, the court determined that Smith could not establish cause and, therefore, it did not address the prejudice prong (i.e., the substantiality of the underlying trial IAC claim) of the Martinez test. With respect to Claim Eighteen, the court stands by its prior determination that the claim is wholly without merit — i.e., insubstantial. Accordingly, Smith is not entitled to Rule 59(e) relief with respect to the court's treatment of his ineffective assistance of trial counsel claims under Martinez.

6. Claims premised on the state court's alleged lack of jurisdiction

Claims One and Two of Smith's petition alleged that his constitutional rights were violated because the Nevada courts lacked jurisdiction over the criminal proceeding that resulted in his convictions and sentences. This court denied the claims because the determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary, and because merely alleging a due process violation does not transform a state law issue into a federal one. ECF No. 175, p. 10.

Smith argues that this court neglected to address whether the state court made an unreasonable determination of the facts for the purposes of 28 U.S.C. § 2254(d)(2) — specifically, the state court finding that the absence of a file stamp on his complaint did not mean that it was not properly filed before the issuance of the arrest warrant and the beginning of the preliminary hearing. The court did not reach that issue, however, because it was not relevant to its analysis of the two claims. A determination that a state court adjudication is based on an unreasonable determination of the facts under § 2254(d)(2) means only that the federal habeas court is not required to give deference to that adjudication. Because, the court denied the claims de novo, it did not delve into the question of deference under § 2254(d). See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) ("Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.").

Smith also claims that, in denying Claims One and Two, this court failed to recognize "the importance of subject matter jurisdiction as one of the oldest and most sacred purposes of the Great Writ." ECF No. 177, p. 40. He misses the point, however. This court did not suggest that a judgment rendered by a court lacking subject matter jurisdiction can nonetheless be valid. Rather, the court concluded that the question whether the state court possessed subject matter jurisdiction in this case was a matter of state law beyond the province of the federal habeas court. The following excerpt from an Eighth Circuit case is instructive:

Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994). See also Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) ("Determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary."). Smith cites to no authority that would permit a federal habeas court to set aside a state court determination regarding the existence of subject matter jurisdiction under state law. Thus, the court stands by its denial of Claim One and Two.

7. Certificate of appealability

Smith argues that, to the extent the court does not grant him relief from the order and judgment denying his petition, he is at least entitled to a certificate of appealability with respect to the issues presented above. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." With respect to claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" or that the issues were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.

Having revisited the rulings discussed above, the court agrees that its rejection of Smith's Martinez-based cause and prejudice claim in relation to Claim Four is at least debatable among reasonable jurists. In Claim Four, Smith alleged that trial counsel were ineffective for failing to present mitigating evidence of mental illness. In concluding that Smith had failed to make an adequate showing to excuse his procedural default of the claim, this court questioned the mitigatory value of the mental health evidence that he had proffered. It is at least arguable, however, that trial counsel were ineffective by not presenting the testimony of mental health experts at Smith's penalty hearing and that post-conviction counsel was ineffective by failing to present the issue in Smith's initial collateral proceeding. See Clabourne, 745 F.3d at 382-83 (discussing the history of petitioner's mitigation-based claim).

III. Conclusion

For the reasons discussed above, Smith is not entitled to relief under Rule 59(e) with respect to this court's order and judgment denying his habeas petition on the merits, except for the court's decision to deny a COA.

IT IS THEREFORE ORDERED that petitioner's motion to alter or amend judgment under Rule 59(e) (ECF No. 177) is GRANTED with respect to the court's decision to deny a COA. In all other respects, the motion is DENIED.

IT IS FURTHER ORDERED that the Certificate of Appealability is amended to include the following issue: