Electronically Filed 6/3/2021 10:19 AM Steven D. Grierson CLERK OF THE COURT 1 APET RENE L. VALLADARES 2 Federal Public Defender Nevada Bar No. 11479 3 DAVID ANTHONY Assistant Federal Public Defender 4 Nevada Bar No. 7978 [email protected] 5 BRAD D. LEVENSON Assistant Federal Public Defender 6 Nevada Bar No. 13804C [email protected] 7 JOCELYN S. MURPHY Assistant Federal Public Defender 8 Nevada Bar No. 15292 [email protected] 9 411 E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 10 (702) 388-6577 (702) 388-5819 (Fax) 11 Attorneys for Zane Michael Floyd 12 13 DISTRICT COURT CLARK COUNTY, NEVADA 14 ZANE MICHAEL FLOYD, Case No. A-21-832952-W 15 Dept. No. 17 Petitioner, 16 SECOND AMENDED PETITION FOR v. WRIT OF HABEAS CORPUS (POST- 17 CONVICTION) 18 WILLIAM GITTERE, Warden, Ely State Date of Hearing: Prison; AARON FORD; Attorney General, Time of Hearing: 19 State of Nevada (DEATH PENALTY CASE) 20 Respondents. EXECUTION SOUGHT BY THE 21 STATE FOR THE WEEK OF JULY 26, 2021 22 23 Case Number: A-21-832952-W 1 Petitioner, Zane Michael Floyd, hereby files this Second Amended Petition for 2 Writ of Habeas Corpus pursuant to Nevada Revised Statutes sections 34.724 and 3 34.820. Floyd alleges that he is being held in custody in violation of the Fifth, Sixth, 4 Eighth, and Fourteenth Amendments of the Constitution of the United States of 5 America; Article 1, sections Three, Six, Eight, and Nine and Article Four, section 6 Twenty-one of the Constitution of the State of Nevada; and the rights afforded him 7 under international law enforced under the Supremacy Clause of the United States 8 Constitution, U.S. Const. art VI, cl.2. 9 DATED this 3rd day of June, 2021. Respectfully submitted 10 RENE L. VALLADARES Federal Public Defender 11 12 /s/ David Anthony DAVID ANTHONY 13 Assistant Federal Public Defender 14 /s/ Brad D. Levenson BRAD D. LEVENSON 15 Assistant Federal Public Defender 16 /s/ Jocelyn S. Murphy 17 JOCELYN S. MURPHY Assistant Federal Public Defender 18 19 20 21 22 23 2 1 PROCEDURAL HISTORY 2 Name of institution and county in which you are presently imprisoned or 3 where and how you are presently restrained of your liberty: Ely State Prison, 4 located in White Pine County. 5 Name and location of court which entered the judgment of conviction under 6 attack: Eighth Judicial District Court, 200 Lewis Avenue, Las Vegas, NV 89101. 7 Date of judgment of conviction: September 5, 2000 8 Case Number: C159897 9 (a) Length of Sentence: 10 Count I: 72 – 180 months 11 Counts II, III, IV, and V: death by lethal injection Count VI: 96 – 240 months plus equal and consecutive enhancement 12 Count VII: Life with parole eligibility after 60 months 13 Counts VIII, IX, X, and XI: Life with parole eligibility after 120 months 14 to run consecutively with an additional life sentence of 120 months 15 Counts VI and VII are served consecutive to Count VIII; Count IV 16 served consecutive to Count VIII; Count X served consecutive to Count IX; and Count XI served consecutive to count X. 17 (b) If sentence is death, state any date upon which execution is scheduled: 18 The week of July 26, 2021. 19 Are you presently serving a sentence for a conviction other than the 20 conviction under attack in this motion? Yes [ ] No [ × ] 21 If “yes”, list crime, case number and sentence being served at this time: 22 Nature of offense involved in conviction being challenged: N/A 23 3 1 Nature of offense involved in conviction being challenged: 2 Zane Floyd was charged by information with, on or about June 3, 1999: 3 (1) burglarizing Albertsons while in possession of a firearm; (2) four 4 counts of murder with use of a deadly weapon for shooting Thomas 5 Michael Darnell, Dennis Troy Sergeant, Carlos Chuck Leos, and 6 Lucille Alice Tarantino, who died as a result of their injuries; (3) 7 attempted murder with use of a deadly weapon for shooting Zachary 8 Emenegger; (4) first degree kidnapping of Tracie Rose Carter with use 9 of a deadly weapon; and (5) four counts of sexual assault upon Tracie 10 Rose Carter with use of a deadly weapon. 11 What was your plea? 12 (a) Not guilty × (c) Guilty but mentally ill 13 (b) Guilty (d) Nolo contendere 14 If you entered a plea of guilty or guilty but mentally ill to one count of an 15 indictment or information, and a plea of not guilty to another count of an indictment 16 or information, or if a plea of guilty or guilty but mentally ill was negotiated, give 17 details: N/A 18 If you were found guilty after a plea of not guilty, was the finding made by: 19 (a) Jury × (b) Judge without a jury 20 Did you testify at the trial? Yes No × 21 Did you appeal from the judgment of conviction? Yes × No 22 If you did appeal, answer the following: 23 4 1 (a) Name of Court: Nevada Supreme Court 2 (b) Case number or citation: Floyd v. State, 118 Nev. 156, 42 P.3d 3 249 (2002) 4 (c) Result: Conviction and sentence affirmed. 5 If you did not appeal, explain briefly why you did not: N/A 6 Other than a direct appeal from the judgment of conviction and sentence, 7 have you previously filed any petitions, applications or motions with respect to this 8 judgment in any court, state or federal? Yes × No 9 If your answer to No. 15 was “yes,” give the following information: 10 (a) (1) Name of Court: Eighth Judicial District Court 11 (2) Nature of proceeding: State post-conviction Petition for Writ 12 of Habeas Corpus 13 (3) Ground raised: 14 I. The trial court committed constitutional error in 15 denying Defendant’s motion to sever counts for trial. 16 II. The trial court committed constitutional error in 17 denying Defendant’s motion for a change of venue. 18 III. The trial court committed constitutional error in 19 denying Defendant’s motion to dismiss statutory 20 aggravators based on a failure to find probable cause 21 for existence of aggravating circumstances. 22 23 5 1 IV. The trial court committed constitutional error by 2 improperly requiring Defendant to disclose expert 3 witness test results and allowing the State to make 4 use of that data in presenting penalty phase rebuttal 5 evidence. 6 V. The trial court committed constitutional error in 7 denying Defendant’s motion to suppress Defendant’s 8 statements. 9 VI. Prosecutorial misconduct during closing argument 10 requires that a new trial be conducted. 11 VII. Prosecutorial misconduct during the presentation of 12 victim-impact testimony at the penalty hearing 13 requires that a new penalty hearing be conducted. 14 VIII. Floyd’s conviction and death sentence are invalid 15 under the State and Federal guarantee of effective 16 assistance of counsel, due process of law, equal 17 protection of the law, cross-examination and 18 confrontation and a reliable sentence due to the failure 19 of trial counsel to provide reasonably effective 20 assistance of counsel. 21 IX. Trial counsel failed to make contemporaneous 22 objections on valid issues during trial and appellate 23 6 1 counsel failed to raise these issues on direct appeal, 2 both failures being in violation of Floyd’s rights under 3 the Sixth Amendment to effective counsel and under 4 the Fifth and Fourteenth Amendments to due process 5 and a fundamentally fair trial. 6 X. Trial counsel failed to request an instruction during 7 the penalty phase that correctly defined the use of 8 character evidence for the jury. 9 XI. Trial counsel failed to object and move to strike 10 overlapping aggravating circumstances and appellate 11 counsel failed to raise the issue on direct appeal. 12 XII. The malice instruction given to the jury contained an 13 unconstitutional presumption that relieved the State 14 of its burden of proof and violated Floyd’s presumption 15 of innocence. 16 XIII. Floyd’s conviction and sentence are invalid under the 17 State and Federal Constitutional guarantee of due 18 process, equal protection of the laws, and reliable 19 sentence due to the failure of the Nevada Supreme 20 Court to conduct fair and adequate appellate review. 21 XIV. Floyd’s conviction and sentence is invalid under the 22 State and Federal Constitutional guarantees of due 23 7 1 process, equal protection, impartial jury from cross- 2 section of the community and reliable determination 3 due to the trial, conviction, and sentence being 4 imposed by a jury from which African Americans and 5 other minorities were systematically excluded and 6 under-represented. 7 (4) Did you receive an evidentiary hearing on your petition, 8 application or motion? Yes No × 9 (5) Result: Denial of the Writ for Habeas Corpus 10 (6) Date of Result: February 4, 2005 11 (7) If known, citations of any written opinion or date of orders 12 entered pursuant to such result: District Court entered an 13 order of denial on February 4, 2005; Nevada Supreme Court 14 affirmed the denial on February 16, 2006. Nevada v. Floyd, 15 Order of Affirmance (Feb. 16, 2006). 16 (b) As to any second petition, application or motion, give the same 17 information: 18 (1) Name of court: Eighth Judicial District Court 19 (2) Nature of proceeding: Successive Petition for Writ of Habeas 20 Corpus 21 (3) Grounds raised: 22 23 8 1 I. Floyd’s convictions and death sentence are invalid 2 under state and federal constitutional guarantees of 3 due process, equal protection, the effective assistance 4 of counsel, and a reliable sentence due to the 5 ineffective assistance of counsel.