McConnell v. Gittere

• Court: District Court, D. Nevada
• Decided: July 24, 2022
• Docket: 3:10-cv-00021
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

5 ROBERT McCONNELL, Case No. 3:10-cv-00021-GMN-CSD

6 Petitioner, ORDER 7 v.

8 WILLIAM REUBART, et al.,

9 Respondents.

10 11 I. SUMMARY 12 This action is a petition for writ of habeas corpus by Robert McConnell, a Nevada 13 prisoner sentenced to death. The case is before the Court with respect to a motion to 14 dismiss filed by the respondents and a related motion for evidentiary hearing filed by 15 McConnell. In the motion to dismiss, Respondents assert that certain of McConnell’s 16 claims are barred by the statute of limitations, unexhausted and/or procedurally 17 defaulted, and/or not ripe for review. The Court will grant the motion to dismiss in part 18 and deny it in part. The Court will dismiss certain of McConnell’s claims, as explained 19 below. The Court will deny McConnell’s motion for evidentiary hearing, without prejudice 20 to McConnell making a new motion for an evidentiary hearing in conjunction with the 21 briefing of the merits of his remaining claims, as contemplated in the scheduling order in 22 this action. The Court will set a schedule for the respondents to file an answer. 23 II. BACKGROUND 24 The Nevada Supreme Court described the background of this case, as follows, in 25 its opinion on McConnell’s direct appeal:

26 On August 7, 2002, McConnell shot Brian Pierce to death. Pierce lived with and planned to marry April Robinson, McConnell’s former 27 girlfriend. McConnell broke into the couple’s home while they were at her with a knife, handcuffed her, and sexually assaulted her. He then 1 kidnapped her, forcing her to drive to California. Robinson was able to escape and alerted authorities. McConnell was later arrested in San 2 Francisco.

3 The State charged McConnell with first-degree murder, alleging theories of deliberate, premeditated murder and of felony murder during 4 the perpetration of a burglary. The State also charged him with sexual assault and first-degree kidnapping. After the preliminary hearing, the 5 State filed a Notice of Intent to Seek Death Penalty and alleged three aggravators: the murder was committed during the course of a burglary, 6 was committed during the course of a robbery, and involved mutilation. Before trial, McConnell successfully moved to represent himself; the 7 Public Defender served as standby counsel thereafter. McConnell then pleaded guilty, without benefit of a plea agreement, to sexual assault and 8 first-degree kidnapping; judgment was entered accordingly, and he was sentenced to consecutive terms of life imprisonment with the opportunity 9 of parole. He also pleaded guilty to first-degree murder, and a penalty hearing before a jury was set. 10 McConnell’s penalty hearing began on August 25, 2003, and lasted 11 four days. In his opening statement, McConnell said that he believed that the evidence would show four mitigating circumstances: he was acting 12 under extreme emotional distress at the time of the murder; he had accepted responsibility for the crimes by pleading guilty; he had no 13 significant prior criminal history in the way of violent felonies; and his behavior in custody was good. 14 The evidence at the hearing showed that Robinson met McConnell 15 in Reno in 2000, and the two began dating. She broke up with him in the spring of 2001 and about eight months later became engaged to Pierce. 16 Threats were exchanged between the couple and McConnell, and Robinson obtained a temporary protective order against McConnell. 17 [Footnote omitted.] After breaking up with Robinson, McConnell told another girlfriend, Lisa Rose, that he was going to murder Pierce. Rose 18 was so concerned that she twice notified the Secret Witness Program and also contacted Robinson. McConnell eventually left the Reno area. 19 About a year later, McConnell returned to the area. On August 4, 20 2002, he contacted his former roommate, Alejandro Monroy. When the two men met, Monroy noticed that McConnell was still fixated on Robinson 21 and displayed aggression toward her. Monroy tried to persuade McConnell to let his feelings for Robinson go and to grow up. 22 Three days later, when Robinson came home from work at around 23 4:30 p.m., she noticed some unusual things. The window blinds were closed, a golf-ball-sized hole was in the outside paneling, and a blanket 24 was lying in front of the door inside the house. Most unusual of all, however, was that her fiance, Brian Pierce, did not come outside to greet 25 her. A few seconds after entering her home, Robinson saw a man dressed in black holding a knife. It took her a moment to realize that the man was 26 McConnell, whom she had not heard from in months.

27 McConnell told Robinson, “Just shut the fuck up.” He grabbed her her. About 20 minutes later, McConnell cut Robinson's shirt and bra off 1 with the knife and took off her pants and panties. Placing her facedown on the bed again, he duct taped her arm to her leg, duct taped her eyes and 2 mouth, and placed a towel over her head. He then sexually assaulted her vaginally, anally, and orally with his finger and penis. 3 Afterwards, McConnell asked Robinson for money, and she gave 4 him seven dollars. Robinson then got dressed, and McConnell told her that if she made any wrong moves he was going to shoot her in front of 5 her neighbors. She saw that he had a gun in a holster with two magazine clips and believed him. She also saw that he had a wallet and car keys 6 that appeared to belong to Pierce. When she asked about Pierce, McConnell told her that Pierce was locked up in a U–Haul, being watched 7 by other people. McConnell said that she would have to take him to California if Pierce was ever going to be set free. 8 Robinson and McConnell drove to California in her car. He told her 9 that everything that was occurring was a part of his plan. She realized that McConnell “had been keeping track of ... when Brian and I went to work, 10 when we got home, the activity at the house, our cars, where they were parked, how many dogs we had, where we sat in the house.” As they 11 approached San Francisco, Robinson began suspecting that Pierce was not a hostage and that McConnell was eventually going to kill her. After 12 they stopped at a gas station, she was able to escape in the car. Robinson drove to a nearby hospital and contacted the police in San Mateo, 13 California. She gave the police McConnell's backpack, which contained items such as a 9–millimeter semiautomatic handgun, bullet magazines, 14 and handcuffs.

15 Early the next morning, on August 8, Washoe County Sheriff's Deputies responded to the reported kidnapping and sexual assault and 16 arrived at Robinson's home. After kicking in the door and entering, the deputies found Pierce dead. He had suffered several gunshot wounds, 17 and a knife was stuck in his torso. Underneath the knife was a videocassette entitled “Fear.” 18 Dr. Christine Elliot, a forensic pathologist, performed an autopsy on 19 Pierce’s body. Pierce had suffered nine gunshot wounds. One gunshot wound behind his ear “appeared to be very close range or contact in 20 nature.” He had also suffered three stab wounds. Two stab wounds were the “most superficial,” and a knife was still in the third wound. The lack of 21 bleeding into the stab wounds suggested that they occurred postmortem. Pierce died from massive blood loss from the gunshot wounds. 22 Before his arrest, McConnell called his brother, Darren Bakondi, 23 and asked him to send “money, things of that nature.” Bakondi testified that McConnell was “kind of rambling” during the conversation: “He told 24 me maybe he should kill himself. Or he said he might go out in a blaze of glory, maybe make the cops—maybe take a couple of them with him, or 25 hopefully some kind of shootout or something.”

26 Less than a week after the crimes, McConnell was arrested in San Francisco. He was extradited back to Nevada. While in custody, he made 27 a number of drawings, had some recorded telephone conversations, and preliminary hearing. The letter had a cover sheet with “Rest in peace” and 1 “1977–2002” (the years of Pierce’s birth and death) written on it. The letter read in part: 2 I hope this letter finds you before you kill yourself. 3 Just think. Now you can be with your mom and Brian forever. That was some performance last Thursday. You almost had 4 me feeling sorry for you.

5 You should thank me, you know. I could get into your house anytime I wanted. Just think. Brian would still be alive 6 if you had locked that window. How does that really make you feel, April? Late at night, alone, when you cry yourself to 7 sleep. Yes, it is a nightmare. And it won't end until you finish the job on your arm. 8 The last sentence referred to an earlier attempt by Robinson to commit 9 suicide. She, however, never received the letter. (Other items admitted into evidence will be discussed below.) 10 At the time of his murder, Pierce was 26 years old, attending 11 college and studying graphic design. His younger sister, Kristine Pierce, testified that he had many friends. She loved him and looked to him for 12 guidance. She described Pierce as “a brave person and a real man.” Pierce's mother, Pam McCoy, spoke of her pride for her only son and 13 stated, “He never spoke hurtful words. He was loyal. He was a loving son.”

14 Pierce’s stepmother, Sheryl Pierce, described Pierce as “a great kid” who held a Bible study class in his bedroom every week while growing 15 up. She thought of him every day. Mrs. Pierce also described two telephone calls she received one night at home after the murder. In the 16 first call, when she heard McConnell say his name on her answering machine, she broke the connection. McConnell called back about a minute 17 later and said on her machine, “Your son died like a coward.” Mrs. Pierce was “absolutely horrified” and “couldn't imagine why anyone would be so 18 cruel and mean as to call someone he doesn't even know just to cause that kind of pain.” 19 McConnell called three witnesses. His longtime best friend, Luis 20 Vasquez, who managed a Reno car dealership, described McConnell as one of the best car salesmen he ever had. Vasquez took family vacations 21 with McConnell and trusted him to baby-sit his children. Before the crimes, Vasquez told McConnell to “walk away” from his feelings for Robinson. He 22 described McConnell as being “very, very depressed,” and added that McConnell was crying and, at times, suicidal. 23 Misty Tackman, a receptionist at the car dealership where 24 McConnell had worked, testified that Robinson once cursed at her and threatened to kill her with a knife. 25 Cassandra Gunther, the mother of McConnell’s daughter, testified 26 that she became pregnant in 1999 when she was 19 years old. McConnell pressured her into keeping the child, once threatening her life. Gunther 27 ended the relationship, the child was born, and Gunther married another 1 McConnell testified on his own behalf. He declined to give specific details about his childhood but stated that he and his mother did not get 2 along. He said that he did not want to make excuses for his behavior because many people have bad experiences growing up. He added, 3 “Everything I'm saying now is for the benefit of the Robinson and Pierce family.” McConnell testified that initially his relationship with Robinson was 4 great, but after he caught her cheating, things went downhill. She started spending time with Pierce, and McConnell began to get jealous and 5 perceive Pierce as a threat. Threats between McConnell and Pierce were made “back and forth,” but Pierce “wouldn't fight.” 6 McConnell stated: 7 I attempted to leave town, get away, because there was an 8 instant where I was—I’m going to do something right now. I'm going to kill these people right now.... 9 .... 10 I should have got the counseling maybe to deal with some 11 other issues. I never did.

12 And, you know, at some point I just—I don't want to say snap. It wasn't instantaneous, you know. I came back with a 13 plan to murder. I did. When I crossed country, I came back, this is about revenge. I'm going to get these people, Brian, 14 April.... And in my mind the war is on. The words have been said. The threats on both sides. So I am justified in whatever 15 I do because, you know, they shouldn't have messed with me; they shouldn't have talked shit to me. 16 And but then there was the other side where, you know, 17 what the hell are you doing? And I would go back and forth.... 18 .... 19 At some point on August 7th I did all the things they said.... 20 You know, I was just kind of aimless, wandering around. But all of a sudden I became focused, and I did, and I just made 21 the decision I’m going to do this. I'm going to retaliate against the people that ruined my life. 22 McConnell also said that 23 I can’t believe that I killed a Christian.... And to find out that I 24 took the life of a person that goes to church and all this stuff that I find out, it hurts me now. 25 At the time, yeah, very lack of remorse. I was pissed off. I 26 admit to making those phone calls, the drawings on the wall. That was done absolutely, you know, on purpose .... 27 But in—with respect to this murder, ... I’m the coward. I 1 ambushed Brian. He had no chance. Because of perceived threats or whatever, whatever I told myself for justification, 2 you know, I took his life. You know, there's no excuse for that. And I have to answer to everybody. 3 He added, “I am sorry for what I did now. I really am.” 4 Under cross-examination, McConnell described Pierce’s murder on 5 August 7. He had been watching Robinson’s and Pierce’s house with binoculars for two days before the murder. The morning of the murder, 6 wearing a police-issue battle dress uniform, he broke into the house through an open window and took such things as bills, pictures, and notes 7 to see what Robinson and Pierce had been doing.

8 McConnell reentered the home at around 12:20 p.m. and waited, determined to kill Pierce when he came home. Once Pierce came in the 9 door, McConnell pointed his gun at him and said, “Give me your wallet.” Pierce threw his wallet toward McConnell and reached for the door. 10 McConnell fired his gun ten times. He approached Pierce because he wanted to look into his eyes to see him die. He then dragged Pierce’s 11 body into a bedroom and cut into it two or three times to dig out a “Black Talon” bullet to see what one looked like inside a body. McConnell then 12 stuck a knife into Pierce’s torso because he was “still mad.” He placed the videotape “Fear” that he found at the house on the body as a message for 13 Robinson. He also took credit cards out of Pierce’s wallet.

14 McConnell explained that his actions were the result of emotional duress. Because this duress continued even after he was in custody, he 15 boasted of murdering Pierce and took pleasure in making Pierce’s family suffer. McConnell said he had since had a change of heart, but he also 16 admitted that violence was still in his nature.

17 The jury found all three aggravating circumstances, determined that any mitigating circumstances were insufficient to outweigh the aggravating 18 circumstances, and returned a verdict of death. 19 McConnell v. State, 120 Nev. 1043, 1049–54, 102 P.3d 606, 611–15 (2004) (a copy of 20 the opinion is found in the record at ECF No. 25-3, pp. 19–34). 21 McConnell did not file a notice of appeal; however, an appeal was automatic 22 under to Nev. Rev. Stat. § 177.055. Counsel was appointed for McConnell on the 23 appeal. See Written Findings of Appellant’s Competence, Appointment of Counsel and 24 Stay of Death Sentence Pending Resolution of Appeal, Exh. 1 (ECF No. 106-1); 25 Appellant’s Opening Brief, Exh. 1 (ECF No. 25-2); Appellant’s Reply Brief, Exh. 2 (ECF 26 No. 25-3, pp. 1–17). On December 29, 2004, the Nevada Supreme Court affirmed 27 McConnell’s conviction and sentence. McConnell, 120 Nev. 1043, 102 P.3d 606. The 1 on March 24, 2005. McConnell v. State, 121 Nev. 25, 107 P.3d 1287 (2005) (a copy of 2 the opinion is found in the record at ECF No. 25-4). The Nevada Supreme Court issued 3 its remittitur on April 19, 2005. See Remittitur, Exh. 4 (ECF No. 106-4). 4 McConnell filed a petition for writ of habeas corpus in the state district court on 5 June 10, 2005. See Petition for Writ of Habeas Corpus, Exh. 5 (ECF No. 106-5). The 6 court appointed counsel for McConnell. See Order Appointing Counsel, Exh. 7 (ECF 7 No. 106-7). With counsel, McConnell filed a supplement to his petition on January 16, 8 2007. See Supplement to Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 10 9 (ECF No. 106-10). On June 11, 2007, the state district court ruled that McConnell’s 10 claims did not warrant post-conviction relief and dismissed his petition. See Order 11 Dismissing Petition for Writ of Habeas Corpus, Exh. 5 (ECF No. 25-5). McConnell 12 appealed. See Appellant’s Opening Brief, Exh. 6 (ECF No. 25-6, ECF No. 25-7, pp. 13 1–28); Appellant’s Reply Brief, Exh. 7 (ECF No. 25-7, pp. 29–76); Appellant’s 14 Supplemental Opening Brief, Exh. 8 (ECF No. 25-8, pp. 1–38). The Nevada Supreme 15 Court affirmed on July 23, 2009. McConnell v. State, 125 Nev. 243, 212 P.3d 307 16 (2009) (as corrected July 24, 2009) (a copy of the opinion (uncorrected) is found in the 17 record at ECF No. 25-8, pp. 39–63). The Nevada Supreme Court denied rehearing on 18 October 6, 2009, and the court’s remittitur was issued on November 3, 2009. See 19 Remittitur, Exh. 17 (ECF No. 106-17). 20 McConnell initiated this federal habeas corpus action by filing a pro se petition for 21 writ of habeas corpus on January 13, 2010 (ECF No. 1). After counsel was appointed 22 for McConnell (ECF No. 14), he filed a first amended habeas petition with the benefit of 23 counsel on October 6, 2010 (ECF No. 24). 24 On September 23, 2011, Respondents filed a motion to dismiss (ECF No. 53), 25 arguing that several claims in McConnell’s first amended petition were unexhausted in 26 state court. In response, on January 23, 2012, McConnell filed a motion to stay this 27 action (ECF No. 58), to allow him to exhaust his unexhausted claims. On July 27, 2012, 1 this action was stayed pending completion of McConnell’s further state court 2 proceedings. See Order entered July 27, 2012 (ECF No. 71). 3 Meanwhile, on November 1, 2010, McConnell had initiated a second habeas 4 action in state court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 493 5 (ECF No. 96-1). The state district court held an evidentiary hearing. See Transcript of 6 Evidentiary Hearing, September 29, 2014, Exh. 518 (ECF No. 129-2); Transcript of 7 Evidentiary Hearing, September 30, 2014, Exh. 519 (ECF No. 129-3); Transcript of 8 Evidentiary Hearing, December 1, 2015, Exh. 521 (ECF No. 129-5); Transcript of 9 Evidentiary Hearing, December 2, 2015, Exh. 522 (ECF No. 129-6). On June 27, 2016, 10 the state district court denied McConnell’s petition. See Order, Exh. 494 (ECF No. 96- 11 2). McConnell appealed. See Appellant’s Opening Brief, Exh. 484 (ECF No. 89-1); 12 Appellant’s Reply Brief, Exh. 486 (ECF No. 89-3). The Nevada Supreme Court affirmed 13 on September 21, 2018. See Order of Affirmance, Exh. 487 (ECF No. 89-4) (McConnell 14 v. Baker, 2018 WL 4613718 (2018) (unpublished)). The Nevada Supreme Court denied 15 McConnell’s petition for rehearing on December 21, 2018. See Petition for Rehearing, 16 Exh. 488 (ECF No. 89-5); Order Denying Rehearing, Exh. 489 (ECF No. 89-6). On 17 October 7, 2019, the United States Supreme Court denied McConnell’s petition for writ 18 of certiorari. See Petition for Writ of Certiorari, Exh. 490 (ECF No. 89-7); Letter Dated 19 October 7, 2019, Exh. 491 (ECF No. 89-8); McConnell v. Gittere, 140 S.Ct. 61 (2019). 20 The Nevada Supreme Court’s remittitur was issued on October 11, 2019. See 21 Remittitur, Exh. 492 (ECF No. 89-9). 22 The stay of this case was lifted, upon a motion by McConnell, on December 3, 23 2019. (ECF No. 91.) On May 6, 2020, McConnell filed a second amended petition for 24 writ of habeas corpus (ECF No. 95), which is now his operative petition. McConnell’s 25 second amended petition asserts the following claims:

26 1. McConnell’s federal constitutional rights were violated because of ineffective assistance of his trial counsel. 27 1 B. Trial counsel were ineffective in their communications with McConnell during the pre-trial period, 2 resulting in his unknowing, involuntary, and unintelligent decisions to represent himself, to plead guilty, and to harm 3 his own interest before and during the penalty hearing.

4 C. Trial counsel were ineffective in failing to adequately investigate mitigation evidence during the pre- 5 trial period.

6 D. Trial counsel were ineffective before and during the hearing on McConnell’s motion to represent 7 himself.

8 2. McConnell’s waiver of counsel was constitutionally invalid because the court’s canvass was inadequate, the court did not appoint 9 conflict-free counsel to advise him, and counsel was ineffective in pre-trial proceedings. 10 A. The trial court’s Faretta canvass was 11 insufficient.

12 B. McConnell lacked conflict-free counsel leading up to his waiver of counsel and his counsel was ineffective 13 during the pre-trial proceedings, including the Faretta hearing. 14 C. McConnell’s waiver of counsel was invalid 15 under the intervening United States Supreme Court case of Indiana v. Edwards, 554 U.S. 164 (2008). 16 D. The trial court improperly failed to appoint 17 counsel before the sentencing hearing when it was apparent that counsel was necessary. 18 E. The trial court failed to abide by its conditional 19 order to appoint counsel when McConnell made a proper request that counsel be appointed for the limited purpose of 20 allowing him to examine his ex-girlfriends.

21 F. The trial court’s failure to appoint counsel to examine McConnell’s ex-girlfriends reduced the proceedings 22 to a sham and a farce.

23 G. McConnell was incapable of eliciting mitigation evidence regarding his childhood and family background. 24 3 McConnell’s death sentence is constitutionally invalid 25 because the Nevada Supreme Court failed to strike the felony murder aggravating circumstances. 26 4. McConnell’s death sentence is unconstitutional because the 27 mutilation aggravating circumstance is unconstitutionally vague and 5. McConnell’s death sentence is unconstitutional because the 1 burglary aggravating circumstance is constitutionally invalid.

2 6. McConnell’s conviction and death sentence are unconstitutional because the trial court failed to adequately apprise 3 McConnell of the consequences of his guilty plea.

4 7. McConnell’s death sentence is unconstitutional because the trial court denied his request for April Robinson’s pre-sentence report and 5 curtailed his cross-examination of her.

6 8. McConnell’s death sentence is unconstitutional because the trial court gave the jury erroneous instructions. 7 A. The jury instructions failed to require that 8 mitigation be outweighed by statutory aggravation beyond a reasonable doubt. 9 B. The jury instructions improperly prohibited the 10 jury from considering sympathy.

11 C. The reasonable doubt instruction permitted the jury to convict McConnell based on a lesser standard of 12 proof than is constitutionally required.

13 D. The “equal and exact justice” instruction created a likelihood that the jury would not apply the 14 presumption of innocence and would convict McConnell based on a lesser standard of proof than is constitutionally 15 required.

16 9. McConnell’s death sentence is unconstitutional because of prosecutorial misconduct. 17 10. McConnell’s death sentence is unconstitutional because the 18 trial court erroneously allowed the prosecution to introduce unduly prejudicial, lengthy, and irrelevant victim impact statements. 19 11. McConnell’s death sentence is unconstitutional because he 20 was given inadequate notice of the prosecution’s case in aggravation.

21 12. McConnell’s death sentence is unconstitutional because the trial court failed to bifurcate the penalty hearing. 22 13. McConnell’s death sentence is unconstitutional because of 23 errors committed by the trial court and the prosecution in systemically removing all death scrupled jurors from the venire. 24 14. McConnell’s death sentence is unconstitutional because of 25 jury misconduct.

26 15. McConnell’s conviction and death sentence are unconstitutional because his Faretta hearing, plea hearing, sentencing, 27 and review on direct appeal were conducted before elected officials, and 1 A. The Nevada Supreme Court’s automatic review of capital sentences is inadequate. 2 B. McConnell’s Faretta hearing, plea hearing, 3 sentencing, and review on direct appeal were conducted before elected officials. 4 16. McConnell’s federal constitutional rights were violated 5 because of ineffective assistance of his appellate counsel because his appellate counsel was subject to conflicts of interest and failed to raise 6 issues on appeal.

7 17. McConnell’s conviction and death sentence are unconstitutional because of the cumulative effect of the errors alleged. 8 18. Nevada’s death penalty is unconstitutional. 9 A. Execution by lethal injection is unconstitutional. 10 1. Execution by lethal injection is 11 unconstitutional in all circumstances.

12 2. Execution by lethal injection as it would be carried out in Nevada is 13 unconstitutional.

14 B. Nevada’s death-penalty scheme does not narrow the class of persons eligible for the death penalty. 15 C. The death penalty is cruel and unusual. 16 D. Nevada’s death-penalty scheme is 17 unconstitutional because executive clemency is unavailable.

18 E. Nevada’s death-penalty scheme operates in an unconstitutionally arbitrary and capricious manner. 19 F. Trial and appellate counsel were ineffective for 20 failing to raise the claims in 18A, 18B, 18C, 18D and 18E. 21 Second Amended Petition (ECF No. 95). 22 On May 28, 2021, Respondents filed the motion to dismiss that is now before the 23 Court (ECF No. 122). In the motion to dismiss, Respondents argue that certain of 24 McConnell’s claims are barred by the statute of limitations, unexhausted and/or 25 procedurally defaulted, and/or not ripe for review. McConnell filed an opposition to the 26 motion to dismiss on October 18, 2021 (ECF No. 128), and Respondents filed a reply 27 on February 28, 2022 (ECF No. 145). 1 Along with his opposition to the motion to dismiss, McConnell filed a motion for 2 an evidentiary hearing (ECF No. 130). Respondents have filed an opposition to that 3 motion (ECF No. 146), and McConnell has filed a reply (ECF No. 150). 4 III. DISCUSSION 5 A. Statute of Limitations 6 1. General Legal Standards 7 The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, 8 established a one-year statute of limitations for federal habeas petitions filed by 9 prisoners challenging state convictions or sentences; the statue provides:

10 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of 11 a State court. The limitation period shall run from the latest of --

12 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time 13 for seeking such review;

14 (B) the date on which the impediment to filing an application created by State action in violation of the 15 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 16 (C) the date on which the constitutional right asserted 17 was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 18 retroactively applicable to cases on collateral review; or

19 (D) the date on which the factual predicate of the claim or claims presented could have been discovered 20 through the exercise of due diligence. 21 28 U.S.C. 2244(d)(1). The AEDPA statute of limitations is tolled during the time that a 22 properly filed application for state post-conviction or other collateral review is pending in 23 state court. See 28 U.S.C. § 2244(d)(2). 24 2. Application of the Statute of Limitations in this Case 25 McConnell’s conviction became final on June 22, 2005, which was 90 days after 26 the Nevada Supreme Court denied the State’s petition for rehearing of his direct appeal 27 on March 24, 2005. See McConnell, 121 Nev. 25, 107 P.3d 1287 (denying petition for 1 Cir. 1999) (“We hold that the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) 2 includes the period within which a petitioner can file for a writ of certiorari from the 3 United States Supreme Court, whether or not the petitioner actually files such a petition. 4 Therefore, when a petitioner fails to seek a writ of certiorari from the United States 5 Supreme Court, the AEDPA’s one-year limitations period begins to run on the date the 6 ninety-day period defined by Supreme Court Rule 13 expires.”). 7 McConnell filed his first state habeas petition on June 10, 2005. before his 8 conviction became final. See Petition for Writ of Habeas Corpus, Exh. 5 (ECF No. 106- 9 5). That tolled the AEDPA limitations period under 28 U.S.C. § 2244(d)(2). Therefore, 10 the AEDPA limitations period was tolled from the time McConnell’s conviction became 11 final on June 22, 2005, until the Nevada Supreme Court’s remittitur was issued on 12 November 3, 2009, concluding McConnell’s first state habeas action. See Remittitur, 13 Exh. 17 (ECF No. 106-17). 14 The AEDPA limitations period relative to McConnell’s federal habeas petition 15 began to run on November 3, 2009, and it ran out on November 3, 2010. Therefore, 16 McConnell’s original petition (ECF No. 1), filed on January 13, 2010, and his first 17 amended petition (ECF No. 24), filed October 6, 2010, were filed before the limitations 18 period expired, but his second amended petition (ECF No. 95), filed April 3, 2020, was 19 filed long after the limitations period expired. This much appears to be undisputed. See 20 Motion to Dismiss (ECF No. 122), p. 6 (Respondents’ assertion that the limitations 21 period ran out on November 3, 2010); Opposition to Motion to Dismiss (ECF No. 128), 22 pp. 6–33 (McConnell treating his original and first amended petitions as filed before 23 expiration of the limitations period and treating his second amended petition as filed 24 after expiration of the limitations period). 25 Therefore, absent a showing that the limitations period for a particular claim 26 commenced to run on a later date under 28 U.S.C. 2244(d)(1)(B), (C) or (D), the 27 application of the statute of limitations to the claims in McConnell’s second amended 1 or first amended petition. In Mayle v. Felix, 545 U.S. 644 (2005), the Supreme Court 2 held that “[s]o long as the original and amended petitions state claims that are tied to a 3 common core of operative facts, relation back will be in order,” but “[a]n amended 4 habeas petition ... does not relate back (and thereby escape AEDPA’s one-year time 5 limit) when it asserts a new ground for relief supported by facts that differ in both time 6 and type from those the original pleading set forth.” Mayle, 545 U.S. at 650, 664. 7 B. Exhaustion of State Court Remedies 8 1. General Legal Standards 9 A federal court may not grant relief on a habeas corpus claim not exhausted in 10 state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of 11 federal-state comity, and is designed to give state courts the initial opportunity to correct 12 alleged constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To 13 exhaust a claim, a petitioner must fairly present that claim to the State’s highest court 14 and must give that court the opportunity to address and resolve it. See Duncan v. 15 Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 16 10 (1992). The “fair presentation” requirement is satisfied when the claim has been 17 presented to the highest state court by describing the operative facts and the legal 18 theory upon which the federal claim is based. See Anderson v. Harless, 459 U.S. 4, 6 19 (1982); Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 20 1212 (1983). To fairly present a federal constitutional claim to the state court, the 21 petitioner must alert the court to the fact that he asserts a claim under the United States 22 Constitution. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), cert. denied, 529 23 U.S. 1009 (2000), citing Duncan, 513 U.S. at 365–66. 24 2. Anticipatory Default 25 The Supreme Court has recognized that under certain circumstances it may be 26 appropriate for a federal court to anticipate the state-law procedural bar of an 27 unexhausted claim, and to treat such a claim as subject to the procedural default 1 would now bar the petitioner from bringing the claim in state court.” Dickens v. Ryan, 2 740 F.3d 1302, 1317 (9th Cir. 2014) (citing Coleman v. Thompson, 501 U.S. 722, 731 3 (1991)). 4 In light of the procedural history of this case, and, in particular, the rulings of the 5 state courts in McConnell’s second state habeas action, it is plain that McConnell’s 6 unexhausted claims would be ruled procedurally barred in state court if McConnell were 7 to return to state court to exhaust those claims. Therefore, the anticipatory default 8 doctrine applies, and the Court considers McConnell’s unexhausted claims to be 9 technically exhausted, but subject to the procedural default doctrine. See Dickens, 740 10 F.3d at 1317. 11 C. Procedural Default 12 1. General Legal Standards 13 In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails 14 to comply with the State’s procedural requirements in presenting his claims is barred by 15 the adequate and independent state ground doctrine from obtaining a writ of habeas 16 corpus in federal court. Coleman, 501 U.S. at 731-32 ("Just as in those cases in which a 17 state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to 18 meet the State’s procedural requirements for presenting his federal claims has deprived 19 the state courts of an opportunity to address those claims in the first instance.”). Where 20 such a procedural default constitutes an adequate and independent state ground for 21 denial of habeas corpus, the default may be excused only if “a constitutional violation 22 has probably resulted in the conviction of one who is actually innocent,” or if the 23 prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. 24 Carrier, 477 U.S. 478, 496 (1986). 25 To demonstrate cause for a procedural default, the petitioner must “show that 26 some objective factor external to the defense impeded” his efforts to comply with the 27 state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external 1 v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner 2 bears “the burden of showing not merely that the errors [complained of] constituted a 3 possibility of prejudice, but that they worked to his actual and substantial disadvantage, 4 infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 5 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 6 (1982)). 7 In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective 8 assistance of post-conviction counsel may serve as cause, to overcome the procedural 9 default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme 10 Court noted that it had previously held, in Coleman, that “an attorney’s negligence in a 11 postconviction proceeding does not establish cause” to excuse a procedural default. 12 Martinez, 566 U.S. at 15 (citing Coleman, 501 U.S. at 746–47). The Martinez Court, 13 however, “qualif[ied] Coleman by recognizing a narrow exception: inadequate 14 assistance of counsel at initial-review collateral proceedings may establish cause for a 15 prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. The 16 Court described “initial-review collateral proceedings” as “collateral proceedings which 17 provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 8. 18 2. Adequacy of Nev. Rev. Stat. §§ 34.726 and 34.810 19 A state procedural rule is “adequate” if it was “clear, consistently applied, and 20 well-established at the time of the petitioner’s purported default.” Calderon v. United 21 States Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (citation and internal 22 quotation marks omitted); see also Ford v. Georgia, 498 U.S. 411, 424 (1991) (state 23 procedural rule adequate if “firmly established and regularly followed by the time as of 24 which it is to be applied” (citation and internal quotation marks omitted)); Lambright v. 25 Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001). 26 In Bennett v. Mueller, 322 F.3d 573, 585–86 (9th Cir. 2003), the Ninth Circuit 27 Court of Appeals established a burden-shifting test for analyzing adequacy. Under 1 and adequate state procedural ground as an affirmative defense.” Bennett, 322 F.3d at 2 586. The burden then shifts to the petitioner “to place that defense in issue,” which the 3 petitioner may do “by asserting specific factual allegations that demonstrate the 4 inadequacy of the state procedure, including citation to authority demonstrating 5 inconsistent application of the rule.” Id. If the petitioner meets this burden, “the ultimate 6 burden” of proving the adequacy of the procedural rule rests with the State, which must 7 demonstrate “that the state procedural rule has been regularly and consistently applied 8 in habeas actions.” Id.; see also King v. Lamarque, 464 F.3d 963, 966–67 (9th Cir. 9 2006). 10 With respect to Nev. Rev. Stat. § 34.810, Respondents meet their initial burden 11 under Bennett by asserting that the Nevada Supreme Court applied that statute to bar 12 certain of McConnell’s claims. See Motion to Dismiss (ECF No. 122), p. 19. 13 McConnell responds by citing Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008), 14 and Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002), and noting that in those cases 15 the Ninth Circuit Court of Appeals ruled Nev. Rev. Stat. § 34.810 to be inadequate to 16 support application of the procedural default doctrine. Opposition to Motion to Dismiss 17 (ECF No. 128), p. 66. McConnell’s argument is as follows:

18 The NSC [Nevada Supreme Court] applied Nev. Rev. Stat. § 34.810, Nevada’s successive petition bar to Mr. McConnell’s petition. See 19 generally ECF No. 89-4. However, the Ninth Circuit has concluded that Nev. Rev. Stat. § 34.810 is an inadequate state procedural bar to federal 20 habeas review in capital cases. See Sechrest v. Ignacio, 549 F.3d 789, 803 (9th Cir. 2008) (relying on Valerio v. Crawford, 306 F.3d 742, 778 (9th 21 Cir. 2002)). Thus, it cannot bar review here as applied to any of the claims in Mr. McConnell’s first or second post-conviction proceedings. 22 23 Ibid. 24 In Valerio, the Ninth Circuit Court of Appeals held that Nevada's successive 25 petition bar was inadequate to bar federal review in capital cases. Valerio, 306 F.3d at 26 777–78. In Sechrest, the court of appeals followed Valerio. Sechrest, 549 F.3d at 803 27 (“Valerio controls the outcome of the procedural default issue in this case.”). 1 Respondents argue that Valerio and Sechrest are irreconcilable with the 2 Supreme Court's subsequent decisions in Beard v. Kindler, 558 U.S. 53 (2009), and 3 Walker v. Martin, 562 U.S. 307 (2011), because the Supreme Court in those cases 4 rejected the notion that a state court’s discretionary application of a procedural rule 5 necessarily renders it inadequate to bar federal review. See Reply in Support of Motion 6 to Dismiss (ECF No. 145), pp. 24–25. In Valerio, the court noted a handful of capital 7 cases in which the Nevada Supreme Court bypassed Nev. Rev. Stat. § 34.810 to reach 8 the merits of a capital petitioner’s claim(s). See Valerio, 306 F.3d 776–77. Relying on 9 those cases, the court of appeals concluded that the Nevada Supreme Court “exercised 10 a general discretionary power” to address the merits of defaulted claims and on that 11 basis determined that Nev. Rev. Stat. § 34.810 was not an adequate bar to federal 12 review. Id. at 778. Valerio and Sechrest have been called into question by Beard and 13 Walker. See Beard, 558 U.S. at 60–61 (holding that “a discretionary state procedural 14 rule can serve as an adequate ground to bar federal habeas review,” because it can be 15 considered “firmly established” and “regularly followed”) and Walker, 562 U.S. at 320 16 (explaining that a rule is not automatically inadequate “upon a showing of seeming 17 inconsistencies” and that the state court must be allowed discretion “to avoid the harsh 18 results that sometimes attend consistent application of an unyielding rule”). 19 Furthermore, Valerio and Sechrest both addressed the adequacy of Nev. Rev. 20 Stat. § 34.810 during a time period that was long before the procedural default in this 21 case. The court in Valerio held that section 34.810 was inadequate in 1990. Valerio, 306 22 F.3d at 778. The court in Sechrest held that section 34.810 was inadequate in 1985. 23 Sechrest, 549 F.3d at 803. In this case, McConnell’s briefing on his direct appeal was 24 filed in 2004 (see Appellant’s Opening Brief, Exh. 1 (ECF No. 25-2); Appellant’s Reply 25 Brief, Exh. 2 (ECF No. 25-3, pp. 1–17)), and McConnell initiated his first state habeas 26 action in 2005 (see Petition for Writ of Habeas Corpus, Exh. 5 (ECF No. 106-5)). 27 1 Because Sechrest and Valerio concerned the adequacy of Nev. Rev. Stat. 2 § 34.810 during a much earlier time period than is relevant in this case, and because 3 those cases predated the Supreme Court cases of Beard and Walker, the Court 4 determines that McConnell’s mere citation of Sechrest and Valerio does not satisfy his 5 burden under Bennett “to place [the procedural default] defense in issue” by “asserting 6 specific factual allegations that demonstrate the inadequacy of the state procedure, 7 including citation to authority demonstrating inconsistent application of the rule.” See 8 Bennett, 322 F.3d at 585–86. The Court, therefore, determines that Nev. Rev. Stat. 9 § 34.810 is adequate to support application of the procedural default doctrine in this 10 case. 11 With respect to Nev. Rev. Stat. § 34.726, Respondents meet their initial burden 12 under Bennett by asserting that the Nevada Supreme Court applied that statute, as well, 13 to bar certain of McConnell’s claims. See Motion to Dismiss (ECF No. 122), p. 19. 14 McConnell responds by stating in a conclusory manner that Nev. Rev. Stat. § 34.726 is 15 inadequate, but he makes no argument supporting that assertion. See Opposition to 16 Motion to Dismiss (ECF No. 128), pp. 65–66. McConnell does not satisfy his burden 17 under Bennett with respect to section 34.726. The Court determines that Nev. Rev. Stat. 18 § 34.726 is adequate to support application of the procedural default doctrine in this 19 case. 20 3. Independence of Nev. Rev. Stat. §§ 34.726 and 34.810 21 On the appeal in McConnell’s second state habeas action, the Nevada Supreme 22 Court ruled McConnell’s entire petition to be procedurally barred under Nev. Rev. Stat. 23 §§ 34.726 (statute of limitations) and 34.810 (successive petitions). See Order of 24 Affirmance, Exh. 487 (ECF No. 89-4). 25 Citing Rippo v. Baker, 137 S.Ct. 905 (2017) (per curiam), McConnell argues that 26 the Nevada Supreme Court’s application of those statutes to bar his second state 27 habeas petition was not independent of federal law and, therefore, cannot support 1 application of the procedural default doctrine. See Opposition to Motion to Dismiss (ECF 2 No. 128), pp. 67–69. 3 “For a state procedural rule to be ‘independent,’ the state law basis for the 4 decision must not be interwoven with the federal law.” Park v. California, 202 F.3d 1146, 5 1152 (2000) (citing Michigan v. Long, 463 U.S. 1032, 1040–41 (1983)). The state 6 procedural rule is “so interwoven if ‘the state has made application of the procedural bar 7 depend on an antecedent ruling on federal law [such as] the determination of whether 8 federal constitutional error has been committed.’” Ibid (quoting Ake v. Oklahoma, 470 9 U.S. 68, 75 (1985)). 10 McConnell relies on a footnote in Rippo and argues that the state-law procedural 11 rules were not applied independently of federal law because the Nevada Supreme 12 Court considered the merits of his claims in determining that he did not show cause and 13 prejudice to overcome procedural bars. See Opposition to Motion to Dismiss (ECF No. 14 128), pp. 67–69. In Rippo, the Supreme Court reviewed, and overruled, the Nevada 15 Supreme Court's holding regarding a substantive federal-law claim in the case—a claim 16 of unconstitutional judicial bias. See Rippo, 137 S.Ct. at 906–07. In a footnote, the Court 17 stated:

18 The [Nevada Supreme Court] further relied on its bias holding to determine that Rippo had not established cause and prejudice to 19 overcome various state procedural bars. 132 Nev., at—, 368 P.3d, at 745. Because the court below did not invoke any state-law grounds 20 “independent of the merits of [Rippo’s] federal constitutional challenge,” we have jurisdiction to review its resolution of federal law. Foster v. 21 Chatman, 578 U.S.––––, —, 136 S.Ct. 1737, 1746, 195 L.Ed.2d 1 (2016). 22 Id. at 907 n.1. The Supreme Court recognized that in that case the Nevada Supreme 23 Court's analysis and ruling of the substantive federal claim was antecedent to its ruling 24 regarding the procedural bars. The Nevada Supreme Court had invoked the law of the 25 case doctrine and relied on an earlier ruling on the merits of the judicial bias claim in 26 ruling on the procedural bars. See Rippo v. State, 132 Nev. 95, 116–19, 368 P.3d 729, 27 743–45 (2016). That is not the case here. In this case, the Nevada Supreme Court first 1 barred absent a demonstration of good cause and prejudice, see NRS 34.726(1); NRS 2 34.810(1)-(3), or a showing that the procedural bars should be excused to prevent a 3 fundamental miscarriage of justice, see Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 4 519, 537 (2001).” Order of Affirmance, Exh. 487, pp. 1–2 (ECF No. 89-4, pp. 2–3). Only 5 then did the court go on to determine that McConnell failed to show cause and 6 prejudice. See id. at 2–9 (ECF No. 89-4, pp. 3–10). In this case, the Nevada Supreme 7 Court’s consideration of the merits of the federal claims was not antecedent to the ruling 8 regarding the procedural bars. 9 Where a state court considers the merits of a claim only to demonstrate that the 10 petitioner cannot overcome a state-law procedural bar of the claim, the procedural bar 11 remains independent of federal law, such that it supports application of the procedural 12 default doctrine. See Nitschke v. Belleque, 680 F.3d 1105, 1111–12 (9th Cir. 2012) 13 (holding that the Oregon Court of Appeals' application of the Oregon “plain error” rule to 14 the petitioner's federal law claim was independent of federal law); Moran v. McDaniel, 15 80 F.3d 1261, 1268–70 (1996) (holding a Nevada procedural rule independent where 16 the Nevada Supreme Court discussed the merits of the claim “strictly for the purpose of 17 demonstrating that [the petitioner could not] overcome his procedural defaults by a 18 showing of cause and prejudice”). 19 The Court finds that the Nevada Supreme Court considered the merits of 20 McConnell’s claims only to demonstrate that McConnell did not overcome the 21 procedural bars, and the consideration of the merits of the claims was not antecedent to 22 the cause-and-prejudice determination. The Nevada Supreme Court’s application of the 23 procedural bars was independent of federal law, such that it can support application of 24 the procedural default doctrine. 25 D. Claim-Specific Analysis 26 1. Claim 1A 27 In Claim 1A, McConnell claims that his federal constitutional rights were violated 1 subject to a conflict of interest. Second Amended Petition (ECF No. 95), pp. 6–28. (In 2 this order, the Court refers to the counsel who represented McConnell for a time in the 3 state district court, before trial, as his “trial counsel.”) 4 Respondents argue that Claim 1A is barred by the statute of limitations. See 5 Motion to Dismiss (ECF No. 122), pp. 6–7; Reply (ECF No. 145), pp. 13–16. The Court 6 disagrees. Claim 1A, as asserted in McConnell’s second amended petition, shares a 7 common core of operative fact with Claim 1A of McConnell’s first amended petition 8 (ECF No. 24 at 6–12), and, therefore, Claim 1A relates back to the first amended 9 petition and is not barred by the statute of limitations. The Court will deny Respondents’ 10 motion to dismiss Claim 1A on statute of limitations grounds. 11 Respondents also contend that Claim 1A is procedurally defaulted. See Motion to 12 Dismiss (ECF No. 122), pp. 20–21; Reply (ECF No. 145), pp. 28–30. McConnell argues 13 that, because Claim 1A is a claim of ineffective assistance of trial counsel, he can 14 overcome any procedural default of the claim by showing cause and prejudice, on 15 account of ineffective assistance of his state post-conviction counsel, under Martinez. 16 See Opposition to Motion to Dismiss (ECF No. 128), pp.106–15. This issue, though, is 17 intertwined with the merits of Claim 1A (as it involves the question whether the 18 underlying claim is substantial); therefore, the Court determines that it will be better 19 addressed in conjunction with the merits of the claim, after Respondents file an answer 20 and McConnell files a reply. Consequently, the Court will deny Respondents’ motion to 21 dismiss Claim 1A on procedural default grounds, without prejudice to Respondents 22 asserting the procedural default defense to Claim 1A in their answer. 23 2. Claim 1B 24 In Claim 1B, McConnell claims that his federal constitutional rights were violated 25 because of ineffective assistance of his trial counsel, because trial counsel were 26 ineffective in their communications with McConnell during the pre-trial period, resulting 27 in his unknowing, involuntary, and unintelligent decisions to represent himself, to plead 1 guilty, and to harm his own interest before and during the penalty hearing. Second 2 Amended Petition (ECF No. 95), pp. 6–8, 28–36. 3 Respondents argue that Claim 1B is barred by the statute of limitations. See 4 Motion to Dismiss (ECF No. 122), p. 7; Reply (ECF No. 145), p. 16. The Court, 5 however, determines that Claim 1B, as asserted in McConnell’s second amended 6 petition, shares a common core of operative fact with Claim 1B of McConnell’s first 7 amended petition (ECF No. 24 at 6–7, 12–17), and, therefore, Claim 1B relates back to 8 the first amended petition and is not barred by the statute of limitations. The Court will 9 deny Respondents’ motion to dismiss Claim 1B on statute of limitations grounds. 10 Respondents also contend that Claim 1B is procedurally defaulted. See Motion to 11 Dismiss (ECF No. 122), p. 21; Reply (ECF No. 145), pp. 30–31. McConnell argues that, 12 because Claim 1B is a claim of ineffective assistance of trial counsel, he can overcome 13 any procedural default of the claim by showing cause and prejudice, on account of 14 ineffective assistance of his state post-conviction counsel, under Martinez. See 15 Opposition to Motion to Dismiss (ECF No. 128), pp.106–12, 116–17. This issue, though, 16 is intertwined with the merits of Claim 1B; therefore, the Court determines that it will be 17 better addressed in conjunction with the merits of the claim, after Respondents file an 18 answer and McConnell files a reply. Consequently, the Court will deny Respondents’ 19 motion to dismiss Claim 1B on procedural default grounds, without prejudice to 20 Respondents asserting the procedural default defense to Claim 1B in their answer. 21 3. Claim 1C 22 In Claim 1C, McConnell claims that his federal constitutional rights were violated 23 because of ineffective assistance of his trial counsel, because trial counsel were 24 ineffective in failing to adequately investigate mitigation evidence during the pre-trial 25 period. Second Amended Petition (ECF No. 95), pp. 6–8, 36–152. 26 Respondents argue that Claim 1C is barred by the statute of limitations. See 27 Motion to Dismiss (ECF No. 122), pp. 7–8; Reply (ECF No. 145), pp. 16–17. The Court, 1 petition, shares a common core of operative fact with Claim 1C of McConnell’s first 2 amended petition (ECF No. 24 at 6–7, 18–95), and, therefore, Claim 1C relates back to 3 the first amended petition and is not barred by the statute of limitations. The Court will 4 deny Respondents’ motion to dismiss Claim 1C on statute of limitations grounds. 5 Respondents contend that Claim 1C is procedurally defaulted. See Motion to 6 Dismiss (ECF No. 122), p. 21; Reply (ECF No. 145), p. 31. McConnell argues that, 7 because Claim 1C is a claim of ineffective assistance of trial counsel, he can overcome 8 any procedural default of the claim by showing cause and prejudice, on account of 9 ineffective assistance of his state post-conviction counsel, under Martinez. See 10 Opposition to Motion to Dismiss (ECF No. 128), pp.106–12, 118–29. This issue, though, 11 is intertwined with the merits of Claim 1C; therefore, the Court determines that it will be 12 better addressed in conjunction with the merits of the claim, after Respondents file an 13 answer and McConnell files a reply. Consequently, the Court will deny Respondents’ 14 motion to dismiss Claim 1C on procedural default grounds, without prejudice to 15 Respondents asserting the procedural default defense to Claim 1C in their answer. 16 4. Claim 1D 17 In Claim 1D, McConnell claims that his federal constitutional rights were violated 18 because of ineffective assistance of his trial counsel, because trial counsel were 19 ineffective before and during the hearing on McConnell’s motion to represent himself. 20 Second Amended Petition (ECF No. 95), pp. 6–8, 152–58. 21 Respondents concede, and the Court finds, that Claim 1D of McConnell’s second 22 amended petition relates back to Claim 1D of his first amended petition, and, therefore, 23 is not barred by the statute of limitations. See Motion to Dismiss (ECF No. 122), p. 8; 24 Reply (ECF No. 145), p. 17; see also First Amended Petition (ECF No. 24), pp. 6–7, 25 95–99). The Court will deny Respondents’ motion to dismiss Claim 1D on statute of 26 limitations grounds. 27 Respondents contend that Claim 1D is, either in part or in its entirety, 1 No. 145), pp. 31–32. McConnell argues that, because Claim 1D is a claim of ineffective 2 assistance of trial counsel, he can overcome any procedural default of the claim by 3 showing cause and prejudice, on account of ineffective assistance of his state post- 4 conviction counsel, under Martinez. See Opposition to Motion to Dismiss (ECF No. 5 128), pp.106–12, 129–33. This issue, though, is intertwined with the merits of Claim 1D; 6 therefore, the Court determines that it will be better addressed in conjunction with the 7 merits of the claim, after Respondents file an answer and McConnell files a reply. 8 Consequently, the Court will deny Respondents’ motion to dismiss Claim 1D on 9 procedural default grounds, without prejudice to Respondents asserting the procedural 10 default defense to Claim 1D in their answer. 11 5. Claim 1E 12 Claim 1E of McConnell’s second amended petition is entitled “Prejudice.” See 13 Second Amended Petition (ECF No. 95), p. 158. There, McConnell asserts that he was 14 prejudiced by the ineffective assistance of trial counsel alleged in Claims 1A, 1B, 1C 15 and 1D. Id. at 158–60. The Court does not understand Claim 1E to set forth a separate 16 claim, but, rather, only to add to Claims 1A, 1B, 1C and 1D. The Court treats Claim 1E 17 as such in this order. The motion to dismiss will be denied with respect to what is 18 designated Claim 1E in the second amended petition. 19 6. Claim 2A 20 In Claim 2A, McConnell claims that his federal constitutional rights were violated 21 because the trial court’s canvass pursuant to Faretta v. California, 422 U.S. 806 (1975), 22 was insufficient. Second Amended Petition (ECF No. 95), pp. 161–67. 23 Respondents concede, and the Court finds, that Claim 2A of McConnell’s second 24 amended petition relates back to Claim 2A of his first amended petition, and, therefore, 25 is not barred by the statute of limitations. See Motion to Dismiss (ECF No. 122), p. 8; 26 Reply (ECF No. 145), p. 18; see also First Amended Petition (ECF No. 24), pp. 102–05. 27 The Court will deny Respondents’ motion to dismiss Claim 2A on statute of limitations 1 Respondents argue that Claim 2A is procedurally defaulted. See Motion to 2 Dismiss (ECF No. 122), pp. 23–24; Reply (ECF No. 145), p. 33. The Court agrees. 3 McConnell first asserted this claim in his second state habeas petition. See Petition for 4 Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 108–11 (ECF No. 96-1, pp. 5 109–12). The Nevada Supreme Court ruled McConnell’s entire second state habeas 6 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 7 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 8 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 9 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 10 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 11 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 12 and prejudice relative to the procedural default of this claim, or any other showing that 13 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 14 Claim 2A on the ground of procedural default. 15 7. Claim 2B 16 In Claim 2B, McConnell claims that his federal constitutional rights were violated 17 because he lacked conflict-free counsel leading up to his waiver of counsel and his 18 counsel was ineffective during the pre-trial proceedings, including the Faretta hearing. 19 Second Amended Petition (ECF No. 95), pp. 161–62, 167–71. 20 This claim reiterates claims made by McConnell in Claims 1A, 1B, 1C, 1D and 21 1E. As the Court will deny Respondents’ motion to dismiss with respect to those claims, 22 the Court will deny the motion to dismiss with respect to Claim 2B for the same reasons. 23 8. Claim 2C 24 In Claim 2C, McConnell claims that his waiver of counsel was invalid under the 25 intervening United States Supreme Court case of Indiana v. Edwards, 554 U.S. 164 26 (2008). Second Amended Petition (ECF No. 95), pp. 161–62, 171–73. 27 Claim 2C is essentially the same claim as Claim 2A, but with argument regarding 1 concede that Claim 2C of McConnell’s second amended petition relates back to his first 2 amended petition, and, therefore, is not barred by the statute of limitations. See Motion 3 to Dismiss (ECF No. 122), pp. 8–9; Reply (ECF No. 145), p. 19. The Court will deny 4 Respondents’ motion to dismiss Claim 2C on statute of limitations grounds. 5 Respondents argue that Claim 2C is procedurally defaulted. See Motion to 6 Dismiss (ECF No. 122), pp. 23–24; Reply (ECF No. 145), p. 33. The Court agrees. 7 McConnell first asserted a claim like Claim 2C on the appeal in his first state habeas 8 action, by moving for leave to present the claim in supplemental briefing, see 9 Appellant’s Supplemental Opening Brief, Exh. 8 (ECF No. 25-8, pp. 1–39), but the 10 Nevada Supreme Court denied that motion because McConnell had not raised the issue 11 in the state district court, and he did not make a showing of cause and prejudice relative 12 to his failure to do so. See Order Denying Motion to File Supplemental Opening Brief, 13 Exh. 463 (ECF No. 59-1, pp. 45–47). McConnell then asserted claims in his second 14 state habeas petition that encompassed what is Claim 2C in this case. See Petition for 15 Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 108–29 (ECF No. 96-1, pp. 16 109–30). The Nevada Supreme Court ruled McConnell’s entire second state habeas 17 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 18 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 19 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 20 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 21 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 22 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 23 and prejudice relative to the procedural default of this claim, or any other showing that 24 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 25 Claim 2C on the ground of procedural default. 26 9. Claim 2D 27 In Claim 2D, McConnell claims that his federal constitutional rights were violated 1 hearing when it was apparent that counsel was necessary. Second Amended Petition 2 (ECF No. 95), pp. 161–62, 173–75. 3 Respondents concede, and the Court finds, that Claim 2D of McConnell’s second 4 amended petition relates back to Claim 2B of his first amended petition, and, therefore, 5 is not barred by the statute of limitations. See Motion to Dismiss (ECF No. 122), p. 9; 6 Reply (ECF No. 145), p. 18; see also First Amended Petition (ECF No. 24), pp. 102, 7 105–06. The Court will deny Respondents’ motion to dismiss Claim 2D on statute of 8 limitations grounds. 9 Respondents argue that Claim 2D is procedurally defaulted. See Motion to 10 Dismiss (ECF No. 122), pp. 23–24; Reply (ECF No. 145), p. 33. The Court agrees. 11 McConnell first asserted this claim in his second state habeas petition. See Petition for 12 Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 111–13 (ECF No. 96-1, 13 pp. 112–14). The Nevada Supreme Court ruled McConnell’s entire second state habeas 14 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 15 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 16 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 17 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 18 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 19 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 20 and prejudice relative to the procedural default of this claim, or any other showing that 21 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 22 Claim 2D on the ground of procedural default. 23 10. Claim 2E 24 In Claim 2E, McConnell claims that his federal constitutional rights were violated 25 because the trial court failed to abide by its conditional order to appoint counsel when 26 McConnell made a proper request that counsel be appointed for the limited purpose of 27 allowing him to examine his ex-girlfriends. Second Amended Petition (ECF No. 95), pp. 1 Respondents concede, and the Court finds, that Claim 2E of McConnell’s second 2 amended petition relates back to Claim 2C of his first amended petition, and, therefore, 3 is not barred by the statute of limitations. See Motion to Dismiss (ECF No. 122), p. 9; 4 Reply (ECF No. 145), p. 18; see also First Amended Petition (ECF No. 24), pp. 102, 5 107–08. The Court will deny Respondents’ motion to dismiss Claim 2E on statute of 6 limitations grounds. 7 Respondents argue that Claim 2E is procedurally defaulted. See Motion to 8 Dismiss (ECF No. 122), pp. 23–24; Reply (ECF No. 145), p. 33. The Court agrees. 9 McConnell first asserted this claim in his second state habeas petition. See Petition for 10 Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 113–14 (ECF No. 96-1, 11 pp. 114–15). The Nevada Supreme Court ruled McConnell’s entire second state habeas 12 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 13 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 14 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 15 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 16 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 17 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 18 and prejudice relative to the procedural default of this claim, or any other showing that 19 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 20 Claim 2E on the ground of procedural default. 21 11. Claim 2F 22 In Claim 2F, McConnell claims that his federal constitutional rights were violated 23 because the trial court’s failure to appoint counsel to examine McConnell’s ex-girlfriends 24 reduced the proceedings to a sham and a farce. Second Amended Petition (ECF No. 25 95), pp. 161–62, 177–92. 26 Respondents concede, and the Court finds, that Claim 2F of McConnell’s second 27 amended petition relates back to Claim 2D of his first amended petition, and, therefore, 1 Reply (ECF No. 145), p. 18; see also First Amended Petition (ECF No. 24), pp. 102, 2 108–18. The Court will deny Respondents’ motion to dismiss Claim 2F on statute of 3 limitations grounds. 4 Respondents argue that Claim 2F is procedurally defaulted. See Motion to 5 Dismiss (ECF No. 122), pp. 23–24; Reply (ECF No. 145), p. 33. The Court agrees. 6 McConnell first asserted this claim in his second state habeas petition. See Petition for 7 Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 114–25 (ECF No. 96-1, 8 pp. 115–26). The Nevada Supreme Court ruled McConnell’s entire second state habeas 9 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 10 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 11 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 12 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 13 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 14 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 15 and prejudice relative to the procedural default of this claim, or any other showing that 16 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 17 Claim 2F on the ground of procedural default. 18 12. Claim 2G 19 In Claim 2G, McConnell claims that his federal constitutional rights were violated 20 because he was incapable of eliciting mitigation evidence regarding his childhood and 21 family background. Second Amended Petition (ECF No. 95), pp. 161–62, 192–97. 22 Respondents concede, and the Court finds, that Claim 2G of McConnell’s second 23 amended petition relates back to Claim 2E of his first amended petition, and, therefore, 24 is not barred by the statute of limitations. See Motion to Dismiss (ECF No. 122), p. 9; 25 Reply (ECF No. 145), p. 18; see also First Amended Petition (ECF No. 24), pp. 102, 26 118–22. The Court will deny Respondents’ motion to dismiss Claim 2G on statute of 27 limitations grounds. 1 Respondents argue that Claim 2G is procedurally defaulted. See Motion to 2 Dismiss (ECF No. 122), pp. 23–24; Reply (ECF No. 145), p. 33. The Court agrees. 3 McConnell first asserted this claim in his second state habeas petition. See Petition for 4 Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 125–28 (ECF No. 96-1, 5 pp. 126–29). The Nevada Supreme Court ruled McConnell’s entire second state habeas 6 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 7 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 8 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 9 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 10 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 11 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 12 and prejudice relative to the procedural default of this claim, or any other showing that 13 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 14 Claim 2G on the ground of procedural default. 15 13. Claim 2H 16 Claim 2H of McConnell’s second amended petition is entitled “Prejudice.” See 17 Second Amended Petition (ECF No. 95), p. 197. There, McConnell asserts that he was 18 prejudiced by the errors alleged in Claims 2A, 2B, 2C, 2D, 2E, 2F and 2G. Id. at 197– 19 98. The Court does not understand Claim 2H to set forth a separate claim, but, rather, 20 only to add to Claims 2A, 2B, 2C, 2D, 2E, 2F and 2G. The Court treats Claim 2H as 21 such in this order. The motion to dismiss will be denied with respect to what is 22 designated Claim 2H in the second amended petition. 23 14. Claim 3 24 In Claim 3, McConnell claims that his death sentence is constitutionally invalid 25 because the Nevada Supreme Court failed to strike the felony murder aggravating 26 circumstances. Second Amended Petition (ECF No. 95), pp. 199–204. 27 Respondents concede, and the Court finds, that Claim 3 of McConnell’s second 1 therefore, Claim 3 is not barred by the statute of limitations. See Motion to Dismiss 2 (ECF No. 122), p. 10; Reply (ECF No. 145), p. 19; see also First Amended Petition 3 (ECF No. 24), pp. 124–27. The Court will deny Respondents’ motion to dismiss Claim 3 4 on statute of limitations grounds. 5 Respondents argue that Claim 3 is procedurally defaulted. See Motion to Dismiss 6 (ECF No. 122), p. 24; Reply (ECF No. 145), pp. 33–38. The Court, however, determines 7 that McConnell raised this claim on his direct appeal. See Appellant’s Opening Brief, 8 Exh. 1, pp. 48–49 (ECF No. 25-2, pp. 54–55. The Nevada Supreme Court ruled on the 9 issue on its merits. See McConnell, 120 Nev. at 1049, 1062–70, 102 P.3d at 611, 620– 10 25. In particular, the Nevada Supreme Court ruled as follows with respect to the 11 contention that the felony murder aggravating circumstances should have been stricken:

12 In charging McConnell with first-degree murder, the State alleged two theories: deliberate, premeditated murder and felony murder during 13 the perpetration of a burglary. McConnell was advised of both theories when he pleaded guilty. During his testimony, McConnell admitted that he 14 had premeditated the murder: “Nothing justifies cold-blooded, premeditated, first-degree murder, which is what I did.” His other 15 testimony and the evidence as a whole overwhelmingly supported this admission. McConnell’s conviction for first-degree murder is therefore 16 soundly based on a theory of deliberate, premeditated murder. Consequently, our ensuing analysis and decision do not invalidate the use 17 of the felony aggravating circumstances in this case. 18 McConnell, 120 Nev. at 1062, 102 P.3d at 620. In his first state habeas petition, 19 McConnell raised a similar claim, focusing on the Nevada Supreme Court’s ruling that 20 the felony murder aggravating circumstances did not have to be stricken in McConnell’s 21 case. See Supplement to Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 10, 22 pp. 16–25 (ECF No. 106-10, pp. 17–26). On the appeal in that case, the Nevada 23 Supreme Court ruled that the claim was raised on McConnell’s direct appeal—that it 24 was, in fact, “the focus of [the court’s] decision on the direct appeal”—and the court 25 applied the law of the case doctrine and affirmed the denial of relief on the claim. 26 McConnell, 125 Nev. at 257, 212 P.3d at 317. Then, in McConnell’s second state 27 habeas petition, he again raised the claim, further focusing it and framing it like he does 1 493, pp. 130–33 (ECF No. 96-1, pp. 131–34). The Nevada Supreme Court ruled 2 McConnell’s entire second state habeas petition to be procedurally barred under Nev. 3 Rev. Stat. §§ 34.726 and 34.810. See Order of Affirmance, Exh. 487 (ECF No. 89-4). 4 But because the claim was asserted and addressed on its merits on McConnell’s direct 5 appeal, as was recognized by the Nevada Supreme Court on the appeal in McConnell’s 6 first state habeas action, it is not procedurally defaulted. The Court will, therefore, deny 7 Respondents’ motion to dismiss Claim 3 on procedural default grounds. 8 15. Claim 4 9 In Claim 4, McConnell claims that his death sentence is unconstitutional because 10 the mutilation aggravating circumstance is unconstitutionally vague and overbroad. 11 Second Amended Petition (ECF No. 95), pp. 205–15. 12 Respondents concede, and the Court finds, that Claim 4 of McConnell’s second 13 amended habeas petition relates back to Claim 4 of his first amended petition, and that, 14 therefore, Claim 4 is not barred by the statute of limitations. See Motion to Dismiss 15 (ECF No. 122), p. 10; Reply (ECF No. 145), p. 19; see also First Amended Petition 16 (ECF No. 24), pp. 128–34. The Court will deny Respondents’ motion to dismiss Claim 4 17 on statute of limitations grounds. 18 Respondents argue that Claim 4 is procedurally defaulted. See Motion to Dismiss 19 (ECF No. 122), pp. 24–25; Reply (ECF No. 145), pp. 38–39. This argument is well 20 taken. On his direct appeal, McConnell claimed that the evidence did not support 21 application of the mutilation aggravating circumstance (see Appellant’s Opening Brief, 22 Exh. 1, pp. 50–51 (ECF No. 25-2, pp. 56–57)); however, he did not on his direct appeal 23 claim that the mutilation aggravating circumstance is unconstitutionally vague and 24 overbroad. McConnell did make a claim such as that in Claim 4 in his second state 25 habeas petition (see Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 26 132–40 (ECF No. 96-1, pp. 133–41)), but The Nevada Supreme Court ruled 27 McConnell’s entire second state habeas petition to be procedurally barred under Nev. 1 The Court determines that Nev. Rev. Stat. §§ 34.726 and 34.810 are both adequate to 2 support application of the procedural default doctrine. See Part III.C.2., supra. The 3 Court also determines that the Nevada Supreme Court’s application of Nev. Rev. Stat. 4 §§ 34.726 and 34.810 was independent of federal law. See Part III.C.3., supra. 5 McConnell does not make any showing of cause and prejudice relative to the 6 procedural default of this claim, or any other showing that excuses the procedural 7 default. The Court will grant Respondents’ motion to dismiss Claim 4 on procedural 8 default grounds. 9 16. Claim 5 10 In Claim 5, McConnell claims that his death sentence is unconstitutional because 11 the burglary aggravating circumstance is constitutionally invalid. Second Amended 12 Petition (ECF No. 95), pp. 216–18. More specifically, McConnell claims that, because 13 premeditated murder and the burglary he was charged with require the same mens 14 rea—intent to commit murder—the burglary aggravating circumstance does not narrow 15 the class of murderers eligible for the death penalty. Ibid. 16 Respondents concede, and the Court finds, that Claim 5 of McConnell’s second 17 amended habeas petition relates back to Claim 5 of his first amended petition, and that, 18 therefore, Claim 5 is not barred by the statute of limitations. See Motion to Dismiss 19 (ECF No. 122), p. 11; Reply (ECF No. 145), p. 19; see also First Amended Petition 20 (ECF No. 24), pp. 135–37. The Court will deny Respondents’ motion to dismiss Claim 5 21 on statute of limitations grounds. 22 Respondents do not argue that Claim 5 is procedurally defaulted. 23 17. Claim 6 24 In Claim 6, McConnell claims that his conviction and death sentence are 25 unconstitutional because the trial court failed to adequately apprise him of the 26 consequences of his guilty plea. Second Amended Petition (ECF No. 95), pp. 219–22. 27 Respondents concede, and the Court finds, that Claim 6 of McConnell’s second 1 therefore, Claim 6 is not barred by the statute of limitations. See Motion to Dismiss 2 (ECF No. 122), p. 11; Reply (ECF No. 145), p. 19; see also First Amended Petition 3 (ECF No. 24), pp. 138–40. The Court will deny Respondents’ motion to dismiss Claim 6 4 on statute of limitations grounds. 5 Respondents do not argue that Claim 6 is procedurally defaulted. 6 18. Claim 7 7 In Claim 7, McConnell claims that his death sentence is unconstitutional because 8 the trial court denied his request for April Robinson’s pre-sentence report and curtailed 9 his cross-examination of her. Second Amended Petition (ECF No. 95), pp. 219–22. 10 Respondents concede, and the Court finds, that Claim 7 of McConnell’s second 11 amended habeas petition relates back to Claim 7 of his first amended petition, and that, 12 therefore, Claim 7 is not barred by the statute of limitations. See Motion to Dismiss 13 (ECF No. 122), pp. 11–12; Reply (ECF No. 145), p. 19; see also First Amended Petition 14 (ECF No. 24), pp. 141–44. The Court will deny Respondents’ motion to dismiss Claim 7 15 on statute of limitations grounds. 16 Respondents argue that Claim 7 is procedurally defaulted. See Motion to Dismiss 17 (ECF No. 122), p. 25; Reply (ECF No. 145), p. 39. The Court agrees. McConnell first 18 made a claim such as that in Claim 7 in his second state habeas petition. See Petition 19 for Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 146–49 (ECF No. 96-1, 20 pp. 147–50). The Nevada Supreme Court ruled McConnell’s entire second state habeas 21 petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See 22 Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines that Nev. Rev. 23 Stat. §§ 34.726 and 34.810 are both adequate to support application of the procedural 24 default doctrine. See Part III.C.2., supra. The Court also determines that the Nevada 25 Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent 26 of federal law. See Part III.C.3., supra. McConnell does not make any showing of cause 27 and prejudice relative to the procedural default of this claim, or any other showing that 1 excuses the procedural default. The Court will grant Respondents’ motion to dismiss 2 Claim 7 on procedural default grounds. 3 19. Claim 8A 4 In Claim 8A, McConnell claims that his death sentence is unconstitutional 5 because the jury instructions failed to require that mitigation be outweighed by statutory 6 aggravation beyond a reasonable doubt. Second Amended Petition (ECF No. 95), pp. 7 229–31. 8 Respondents concede, and the Court finds, that Claim 8A of McConnell’s second 9 amended habeas petition relates back to Claim 8A of his first amended petition, and 10 that, therefore, Claim 8A is not barred by the statute of limitations. See Motion to 11 Dismiss (ECF No. 122), p. 12; Reply (ECF No. 145), p. 19; see also First Amended 12 Petition (ECF No. 24), pp. 145–46. The Court will deny Respondents’ motion to dismiss 13 Claim 8A on statute of limitations grounds. 14 Respondents argue that Claim 8A is procedurally defaulted. See Motion to 15 Dismiss (ECF No. 122), pp. 25–26; Reply (ECF No. 145), pp. 39–40. In response, 16 McConnell argues that he can show cause and prejudice relative to the claim, such as 17 to overcome any procedural default of the claim, on account of ineffective assistance of 18 his appellate counsel for not raising the claim on his direct appeal. See Opposition to 19 Motion to Dismiss (ECF No. 128), pp. 75–76. In their reply, Respondents acknowledge 20 this argument by McConnell and state that, “because McConnell claims he can 21 overcome his default by showing appellate counsel was ineffective for failing to raise 22 this on appeal, this Court should defer ruling on the procedural default issue until 23 Respondents have had a chance to address the related ineffective assistance of 24 appellate counsel claims from Ground Sixteen on the merits in an answer.” Reply (ECF 25 No. 145), p. 40. The Court agrees with this approach. The Court will deny the motion to 26 dismiss Claim 8A on procedural default grounds, without prejudice to Respondents 27 asserting the procedural default defense to Claim 8A in their answer. 1 20. Claim 8B 2 In Claim 8B, McConnell claims that his death sentence is unconstitutional 3 because the jury instructions improperly prohibited the jury from considering sympathy. 4 Second Amended Petition (ECF No. 95), pp. 229, 231–32. 5 Respondents concede, and the Court finds, that Claim 8B of McConnell’s second 6 amended habeas petition relates back to Claim 8B of his first amended petition, and 7 that, therefore, Claim 8B is not barred by the statute of limitations. See Motion to 8 Dismiss (ECF No. 122), p. 12; Reply (ECF No. 145), p. 19; see also First Amended 9 Petition (ECF No. 24), pp. 145–47. The Court will deny Respondents’ motion to dismiss 10 Claim 8B on statute of limitations grounds. 11 Respondents argue that Claim 8B is procedurally defaulted. See Motion to 12 Dismiss (ECF No. 122), pp. 25–26; Reply (ECF No. 145), p. 40. The Court agrees. 13 McConnell first made a claim such as that in Claim 8B in his second state habeas 14 petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 150– 15 52 (ECF No. 96-1, pp. 152–53). The Nevada Supreme Court ruled McConnell’s entire 16 second state habeas petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 17 and 34.810. See Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines 18 that Nev. Rev. Stat. §§ 34.726 and 34.810 are both adequate to support application of 19 the procedural default doctrine. See Part III.C.2., supra. The Court also determines that 20 the Nevada Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was 21 independent of federal law. See Part III.C.3., supra. McConnell does not make any 22 showing of cause and prejudice relative to the procedural default of this claim, or any 23 other showing that excuses the procedural default. The Court will grant Respondents’ 24 motion to dismiss Claim 8B on procedural default grounds. 25 21. Claim 8C 26 In Claim 8C, McConnell claims that his death sentence is unconstitutional 27 because the reasonable doubt instruction permitted the jury to convict McConnell based 1 on a lesser standard of proof than is constitutionally required. Second Amended Petition 2 (ECF No. 95), pp. 229, 232–34. 3 Respondents concede, and the Court finds, that Claim 8C of McConnell’s second 4 amended habeas petition relates back to Claim 8C of his first amended petition, and 5 that, therefore, Claim 8C is not barred by the statute of limitations. See Motion to 6 Dismiss (ECF No. 122), p. 12; Reply (ECF No. 145), p. 19; see also First Amended 7 Petition (ECF No. 24), pp. 145, 147–48. The Court will deny Respondents’ motion to 8 dismiss Claim 8C on statute of limitations grounds. 9 Respondents argue that Claim 8C is procedurally defaulted. See Motion to 10 Dismiss (ECF No. 122), pp. 25–26; Reply (ECF No. 145), p. 40. The Court agrees. 11 McConnell first made a claim such as that in Claim 8C in his second state habeas 12 petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 150, 13 152–53 (ECF No. 96-1, pp. 151, 153–54). The Nevada Supreme Court ruled 14 McConnell’s entire second state habeas petition to be procedurally barred under Nev. 15 Rev. Stat. §§ 34.726 and 34.810. See Order of Affirmance, Exh. 487 (ECF No. 89-4). 16 The Court determines that Nev. Rev. Stat. §§ 34.726 and 34.810 are both adequate to 17 support application of the procedural default doctrine. See Part III.C.2., supra. The 18 Court also determines that the Nevada Supreme Court’s application of Nev. Rev. Stat. 19 §§ 34.726 and 34.810 was independent of federal law. See Part III.C.3., supra. 20 McConnell does not make any showing of cause and prejudice relative to the 21 procedural default of this claim, or any other showing that excuses the procedural 22 default. The Court will grant Respondents’ motion to dismiss Claim 8C on procedural 23 default grounds. 24 22. Claim 8D 25 In Claim 8D, McConnell claims that his death sentence is unconstitutional 26 because the “equal and exact justice” instruction created a likelihood that the jury would 27 not apply the presumption of innocence and would convict McConnell based on a lesser 1 standard of proof than is constitutionally required. Second Amended Petition (ECF No. 2 95), pp. 229, 234–35. 3 Respondents concede, and the Court finds, that Claim 8D of McConnell’s second 4 amended habeas petition relates back to Claim 8D of his first amended petition, and 5 that, therefore, Claim 8D is not barred by the statute of limitations. See Motion to 6 Dismiss (ECF No. 122), p. 12; Reply (ECF No. 145), p. 19; see also First Amended 7 Petition (ECF No. 24), pp. 145, 148–49. The Court will deny Respondents’ motion to 8 dismiss Claim 8D on statute of limitations grounds. 9 Respondents argue that Claim 8D is procedurally defaulted. See Motion to 10 Dismiss (ECF No. 122), pp. 25–26; Reply (ECF No. 145), p. 40. The Court agrees. 11 McConnell first made a claim such as that in Claim 8D in his second state habeas 12 petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 150, 13 153–54 (ECF No. 96-1, pp. 151, 154–55). The Nevada Supreme Court ruled 14 McConnell’s entire second state habeas petition to be procedurally barred under Nev. 15 Rev. Stat. §§ 34.726 and 34.810. See Order of Affirmance, Exh. 487 (ECF No. 89-4). 16 The Court determines that Nev. Rev. Stat. §§ 34.726 and 34.810 are both adequate to 17 support application of the procedural default doctrine. See Part III.C.2., supra. The 18 Court also determines that the Nevada Supreme Court’s application of Nev. Rev. Stat. 19 §§ 34.726 and 34.810 was independent of federal law. See Part III.C.3., supra. 20 McConnell does not make any showing of cause and prejudice relative to the 21 procedural default of this claim, or any other showing that excuses the procedural 22 default. The Court will grant Respondents’ motion to dismiss Claim 8D on procedural 23 default grounds. 24 23. Claim 9 25 In Claim 9, McConnell claims that his death sentence is unconstitutional because 26 of prosecutorial misconduct. Second Amended Petition (ECF No. 95), pp. 236–40. 27 Respondents concede, and the Court finds, that Claim 9 of McConnell’s second 1 therefore, Claim 9 is not barred by the statute of limitations. See Motion to Dismiss 2 (ECF No. 122), pp. 12–13; Reply (ECF No. 145), p. 19; see also First Amended Petition 3 (ECF No. 24), pp. 150–53. The Court will deny Respondents’ motion to dismiss Claim 9 4 on statute of limitations grounds. 5 Respondents argue that Claim 9 is procedurally defaulted in part. See Motion to 6 Dismiss (ECF No. 122), p. 26; Reply (ECF No. 145), p. 40. The Court agrees. 7 McConnell asserted a claim of prosecutorial misconduct on his direct appeal, but that 8 claim was less extensive than Claim 9 in this case. See Appellant’s Opening Brief, Exh. 9 1, pp. 33–42 (ECF No. 25-2, pp. 39–48). Comparing Claim 9 in this case to the claims 10 of prosecutorial misconduct made by McConnell on his direct appeal, the Court 11 determines that McConnell bases Claim 9, in part, on the following arguments allegedly 12 made by the prosecution, but he did not include these in his prosecutorial misconduct 13 claims on direct appeal:

14 - “When you cast a play in hell….” Second Amended Petition (ECF No. 95), p. 236, lines 14–20. 15 - “[T]hink of April … ‘April, I know your dad just lost your mom. I won’t 16 kill you.’” Id., p. 238, lines 1–4.

17 - “What do I agree with that [McConnell] said? Brian was a good man.” Id., p. 238, lines 10–12. 18 19 See Appellant’s Opening Brief, Exh. 1, pp. 33–42 (ECF No. 25-2, pp. 39–48). On 20 McConnell’s direct appeal, the Nevada Supreme Court ruled on his prosecutorial 21 misconduct claims on their merits. See McConnell, 120 Nev. at 1057–61, 102 P.3d at 22 616–19. In his second state habeas action, McConnell made a claim like that in Claim 9 23 in this case, and included the three allegations described above that were not asserted 24 on his direct appeal. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 25 493, pp. 155–58 (ECF No. 96-1, pp. 156–59). However, the Nevada Supreme Court 26 ruled McConnell’s entire second state habeas petition to be procedurally barred under 27 Nev. Rev. Stat. §§ 34.726 and 34.810. See Order of Affirmance, Exh. 487 (ECF No. 89- 1 to support application of the procedural default doctrine. See Part III.C.2., supra. The 2 Court also determines that the Nevada Supreme Court’s application of Nev. Rev. Stat. 3 §§ 34.726 and 34.810 was independent of federal law. See Part III.C.3., supra. 4 McConnell does not make any showing of cause and prejudice relative to the 5 procedural default of part of this claim, or any other showing that excuses the 6 procedural default. The Court will grant Respondents’ motion to dismiss Claim 9, on 7 procedural default grounds, with respect to the following comments of the prosecutor 8 alleged by McConnell to have been prosecutorial misconduct:

9 - “When you cast a play in hell….” Second Amended Petition (ECF No. 95), p. 236, lines 14–20. 10 - “[T]hink of April … ‘April, I know your dad just lost your mom. I won’t 11 kill you.’” Id., p. 238, lines 1–4.

12 - “What do I agree with that [McConnell] said? Brian was a good man.” Id., p. 238, lines 10–12. 13 14 24. Claim 10 15 In Claim 10, McConnell claims that his death sentence is unconstitutional 16 because the trial court erroneously allowed the prosecution to introduce unduly 17 prejudicial, lengthy, and irrelevant victim impact statements. Second Amended Petition 18 (ECF No. 95), pp. 241–44. 19 Respondents concede, and the Court finds, that Claim 10 of McConnell’s second 20 amended habeas petition relates back to Claim 10 of his first amended petition, and 21 that, therefore, Claim 10 is not barred by the statute of limitations. See Motion to 22 Dismiss (ECF No. 122), p. 13; Reply (ECF No. 145), p. 19; see also First Amended 23 Petition (ECF No. 24), pp. 154–56. The Court will deny Respondents’ motion to dismiss 24 Claim 10 on statute of limitations grounds. 25 Respondents do not argue that Claim 10 is procedurally defaulted. 26 27 1 25. Claim 11 2 In Claim 11, McConnell claims that his death sentence is unconstitutional 3 because he was given inadequate notice of the prosecution’s case in aggravation. 4 Second Amended Petition (ECF No. 95), pp. 245–48. 5 Respondents concede, and the Court finds, that Claim 11 of McConnell’s second 6 amended habeas petition relates back to Claim 11 of his first amended petition, and 7 that, therefore, Claim 11 is not barred by the statute of limitations. See Motion to 8 Dismiss (ECF No. 122), pp. 13–14; Reply (ECF No. 145), p. 19; see also First Amended 9 Petition (ECF No. 24), pp. 157–59. The Court will deny Respondents’ motion to dismiss 10 Claim 11 on statute of limitations grounds. 11 Respondents do not argue that Claim 11 is procedurally defaulted. 12 26. Claim 12 13 In Claim 12, McConnell claims that his death sentence is unconstitutional 14 because the trial court failed to bifurcate the penalty hearing. Second Amended Petition 15 (ECF No. 95), pp. 249–53. 16 Respondents concede, and the Court finds, that Claim 12 of McConnell’s second 17 amended habeas petition relates back to Claim 12 of his first amended petition, and 18 that, therefore, Claim 12 is not barred by the statute of limitations. See Motion to 19 Dismiss (ECF No. 122), p. 14; Reply (ECF No. 145), p. 19; see also First Amended 20 Petition (ECF No. 24), pp. 160–63. The Court will deny Respondents’ motion to dismiss 21 Claim 12 on statute of limitations grounds. 22 Respondents do not argue that Claim 12 is procedurally defaulted. 23 27. Claim 13 24 In Claim 13, McConnell claims that his death sentence is unconstitutional 25 because of errors committed by the trial court and the prosecution in systemically 26 removing all death scrupled jurors from the venire. Second Amended Petition (ECF No. 27 95), pp. 254–58. 1 Respondents concede, and the Court finds, that Claim 13 of McConnell’s second 2 amended habeas petition relates back to Claim 13 of his first amended petition, and 3 that, therefore, Claim 13 is not barred by the statute of limitations. See Motion to 4 Dismiss (ECF No. 122), p. 14; Reply (ECF No. 145), p. 19; see also First Amended 5 Petition (ECF No. 24), pp. 164–66. The Court will deny Respondents’ motion to dismiss 6 Claim 13 on statute of limitations grounds. 7 Respondents argue that Claim 13 is procedurally defaulted. See Motion to 8 Dismiss (ECF No. 122), pp. 26–27; Reply (ECF No. 145), p. 41. McConnell asserted a 9 claim such as that in Claim 13, regarding some of the alleged death scrupled jurors, on 10 the appeal in his first state habeas petition. See Appellant’s Opening Brief, Exh. 6, pp. 11 18–20 (ECF No. 25-6, ECF No. 25-7, pp.38–40). The Nevada Supreme Court affirmed 12 the dismissal of this claim under Nev. Rev. Stat. § 34.810, ruling that the claim should 13 have been raised on direct appeal. McConnell, 125 Nev. at 258, 212 P.3d at 317. 14 McConnell subsequently asserted the claim, regarding all the alleged death scrupled 15 jurors, in his second state habeas petition. See Petition for Writ of Habeas Corpus 16 (Post-Conviction), Exh. 493, pp. 169–71 (ECF No. 96-1, pp. 170–73). The Nevada 17 Supreme Court ruled McConnell’s entire second state habeas petition to be 18 procedurally barred under Nev. Rev. Stat. §§ 34.726 and 34.810. See Order of 19 Affirmance, Exh. 487 (ECF No. 89-4). McConnell, though, argues that he can show 20 cause and prejudice, such as to overcome any procedural default of the claim, on 21 account of ineffective assistance of his appellate counsel for not raising the claim on his 22 direct appeal. See Opposition to Motion to Dismiss (ECF No. 128), pp. 76–77. 23 Therefore, because the resolution of this issue is intertwined with the merits of this claim 24 and the merits of the related claim of ineffective assistance of appellate counsel, the 25 Court will deny the motion to dismiss Claim 13 on procedural default grounds, without 26 prejudice to Respondents asserting the procedural default defense to Claim 13 their 27 answer. 1 28. Claim 14 2 In Claim 14, McConnell claims that his death sentence is unconstitutional 3 because of jury misconduct. Second Amended Petition (ECF No. 95), pp. 259–61. 4 Respondents concede, and the Court finds, that Claim 14 of McConnell’s second 5 amended habeas petition relates back to Claim 14 of his first amended petition, and 6 that, therefore, Claim 14 is not barred by the statute of limitations. See Motion to 7 Dismiss (ECF No. 122), pp. 14–15; Reply (ECF No. 145), p. 19; see also First Amended 8 Petition (ECF No. 24), pp. 167–68. The Court will deny Respondents’ motion to dismiss 9 Claim 14 on statute of limitations grounds. 10 Respondents argue that Claim 14 is procedurally defaulted. See Motion to 11 Dismiss (ECF No. 122), p. 27; Reply (ECF No. 145), p. 41. The Court agrees. 12 McConnell first made a claim such as that in Claim 14 in his second state habeas 13 petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 493, pp. 172– 14 73 (ECF No. 96-1, pp. 173–74). The Nevada Supreme Court ruled McConnell’s entire 15 second state habeas petition to be procedurally barred under Nev. Rev. Stat. §§ 34.726 16 and 34.810. See Order of Affirmance, Exh. 487 (ECF No. 89-4). The Court determines 17 that Nev. Rev. Stat. §§ 34.726 and 34.810 are both adequate to support application of 18 the procedural default doctrine. See Part III.C.2., supra. The Court also determines that 19 the Nevada Supreme Court’s application of Nev. Rev. Stat. §§ 34.726 and 34.810 was 20 independent of federal law. See Part III.C.3., supra. McConnell does not make any 21 showing of cause and prejudice relative to the procedural default of this claim, or any 22 other showing that excuses the procedural default. The Court will grant Respondents’ 23 motion to dismiss Claim 14 on procedural default grounds. 24 29. Claim 15A 25 In Claim 15A, McConnell claims that his conviction and death sentence are 26 unconstitutional because the Nevada Supreme Court’s automatic review of capital 27 sentences is inadequate. Second Amended Petition (ECF No. 95), pp. 262–64. 1 Respondents concede, and the Court finds, that Claim 15A of McConnell’s 2 second amended habeas petition relates back to Claim 15A of his first amended 3 petition, and that, therefore, Claim 15A is not barred by the statute of limitations. See 4 Motion to Dismiss (ECF No. 122), p. 15; Reply (ECF No. 145), p. 19; see also First 5 Amended Petition (ECF No. 24), pp. 169–70. The Court will deny Respondents’ motion 6 to dismiss Claim 15A on statute of limitations grounds. 7 Respondents argue that Claim 15A is procedurally defaulted. See Motion to 8 Dismiss (ECF No. 122), p. 27; Reply (ECF No. 145), pp. 41–42. In response, McConnell 9 argues that he can show cause and prejudice, such as to overcome any procedural 10 default of the claim, on account of ineffective assistance of his appellate counsel for not 11 raising the claim on his direct appeal. See Opposition to Motion to Dismiss (ECF No. 12 128), pp. 77–78. In their reply, Respondents acknowledge this argument by McConnell 13 and state that, “because McConnell claims he can overcome his defaults by showing 14 appellate counsel was ineffective for failing to raise them on appeal, this Court should 15 defer ruling on dismissal of Claim Fifteen until Respondents have had a chance to 16 address the related ineffective assistance of appellate counsel claims from Claim 17 Sixteen on the merits in an answer.” Reply (ECF No. 145), pp. 41–42. The Court agrees 18 with this approach. The Court will deny the motion to dismiss Claim 15A on procedural 19 default grounds, without prejudice to Respondents asserting the procedural default 20 defense to Claim 15A in their answer. 21 30. Claim 15B 22 In Claim 15B, McConnell claims that his conviction and death sentence are 23 unconstitutional because his Faretta hearing, plea hearing, sentencing, and review on 24 direct appeal were conducted before elected officials. Second Amended Petition (ECF 25 No. 95), pp. 262, 264–68. 26 Respondents concede, and the Court finds, that Claim 15B of McConnell’s 27 second amended habeas petition relates back to Claim 15B of his first amended 1 Motion to Dismiss (ECF No. 122), p. 15; Reply (ECF No. 145), p. 19; see also First 2 Amended Petition (ECF No. 24), pp. 170–73. The Court will deny Respondents’ motion 3 to dismiss Claim 15B on statute of limitations grounds. 4 Respondents argue that Claim 15B is procedurally defaulted. See Motion to 5 Dismiss (ECF No. 122), p. 27; Reply (ECF No. 145), pp. 41–42. In response, McConnell 6 argues that he can show cause and prejudice, such as to overcome any procedural 7 default of the claim, on account of ineffective assistance of his appellate counsel for not 8 raising the claim on his direct appeal. See Opposition to Motion to Dismiss (ECF No. 9 128), p. 79. In their reply, here again, Respondents acknowledge this argument by 10 McConnell and state that, “because McConnell claims he can overcome his defaults by 11 showing appellate counsel was ineffective for failing to raise them on appeal, this Court 12 should defer ruling on dismissal of Claim Fifteen until Respondents have had a chance 13 to address the related ineffective assistance of appellate counsel claims from Claim 14 Sixteen on the merits in an answer.” Reply (ECF No. 145), pp. 41–42. The Court agrees 15 with this approach. The Court will deny the motion to dismiss Claim 15B on procedural 16 default grounds, without prejudice to Respondents asserting the procedural default 17 defense to Claim 15B in their answer. 18 31. Claim 16 19 In Claim 16, McConnell claims that his conviction and death sentence are 20 unconstitutional because of ineffective assistance of his appellate counsel because his 21 appellate counsel was subject to conflicts of interest and failed to raise issues on 22 appeal. Second Amended Petition (ECF No. 95), pp. 269–80. 23 Respondents argue that Claim 16 is, in part, barred by the statute of limitations. 24 See Motion to Dismiss (ECF No. 122), pp. 15–16; Reply (ECF No. 145), p. 20. 25 Specifically, Respondents argue that in Claim 16 of his first amended petition 26 McConnell alleged only the conflict of interest caused by the Washoe County Public 27 Defender’s (“WCPD’s”) prior representation of April Robinson and a confidential 1 another conflict, the second being a conflict caused by the WCPD’s representation of 2 McConnell both before the trial court and the appellate court. In his second amended 3 petition, McConnell claims that, because of the two conflicts of interest, his appellate 4 counsel did not raise the claims asserted in Claims 1, 2 and 7. Those claims, though, 5 are related to the WCPD’s alleged conflict caused by prior representation of Robinson 6 and the informant. The Court determines that, with respect to the prejudice McConnell 7 alleges resulting from the WCPD’s conflicts of interest, Claim 16 cannot be parsed in 8 the manner suggested by Respondents. In other words, Claim 16 in the second 9 amended petition, to the extent based on conflicts of interest of the WCPD, arises from 10 the same core operative facts—including the failure to raise on appeal the claims in 11 Claims 1, 2 and 7—as the claims in Claim 16 in the first amended petition. The Court 12 determines that Claim 16 in the second amended petition, in its entirety, relates back to 13 Claim 16 in the first amended petition and is not barred by the statute of limitations. The 14 Court will deny Respondents’ motion to dismiss Claim 16 on statute of limitations 15 grounds. 16 Respondents argue that Claim 16 is, in part, procedurally defaulted. See Motion 17 to Dismiss (ECF No. 122), pp. 27–28; Reply (ECF No. 145), pp. 42–43. Here, 18 Respondents point out that McConnell did not, prior to his second state habeas petition, 19 claim in state court that his appellate counsel was ineffective for failing to assert the 20 claims in Claims 2, 4, 8B, 8C and 8D, and he argues that, therefore, Claim 16 is 21 procedurally defaulted to the extent of those claims. See id.; see also Petition for Writ of 22 Habeas Corpus, Exh. 5 (ECF No. 106-5); Supplement to Petition for Writ of Habeas 23 Corpus (Post-Conviction), Exh. 10 (ECF No. 106-10); Petition for Writ of Habeas 24 Corpus (Post-Conviction), Exh. 493 (ECF No. 96-1). This argument is well taken. 25 McConnell’s claims that his appellate counsel was ineffective for failing to assert, on his 26 direct appeal, the claims in Claims 2, 4, 8B, 8C and 8D, were first asserted in 27 McConnell’s second state habeas petition and were ruled procedurally barred under 1 (ECF No. 89-4). The Court determines that Nev. Rev. Stat. §§ 34.726 and 34.810 are 2 both adequate to support application of the procedural default doctrine. See Part 3 III.C.2., supra. The Court also determines that the Nevada Supreme Court’s application 4 of Nev. Rev. Stat. §§ 34.726 and 34.810 was independent of federal law. See Part 5 III.C.3., supra. McConnell does not make any showing of cause and prejudice relative to 6 the procedural default of these claims, or any other showing that excuses these 7 procedural defaults. The Court will grant Respondents’ motion to dismiss Claim 16, on 8 procedural default grounds, to the extent that McConnell claims that his appellate 9 counsel was ineffective for failing to assert, on his direct appeal, the claims in Claims 2, 10 4, 8B, 8C and 8D. 11 32. Claim 17 12 In Claim 17, McConnell claims that his federal constitutional rights were violated 13 because of the cumulative effect of the errors described in his second amended petition. 14 Second Amended Petition (ECF No. 95), p. 281. This cumulative error claim is 15 procedurally viable—not barred by the statute of limitations and not procedurally 16 defaulted—because there are underlying claims in McConnell’s second amended 17 petition that are not dismissed in this order. The Court will deny the motion to dismiss 18 with respect to Claim 17. 19 33. Claim 18A1 20 In Claim 18A1, McConnell claims that his death sentence is unconstitutional 21 because execution by lethal injection is unconstitutional in all circumstances. Second 22 Amended Petition (ECF No. 95), pp. 282–92. 23 Respondents concede, and the Court finds, that Claim 18A1 of McConnell’s 24 second amended habeas petition relates back to Claim 18 of his first amended petition, 25 and that, therefore, Claim 18A1 is not barred by the statute of limitations. See Motion to 26 Dismiss (ECF No. 122), p. 17; Reply (ECF No. 145), p. 21; see also First Amended 27 Petition (ECF No. 24), pp. 177–91. The Court will deny Respondents’ motion to dismiss 1 Respondents argue that Claim 18A1 is procedurally defaulted. See Motion to 2 Dismiss (ECF No. 122), p. 29; Reply (ECF No. 145), pp. 44–45. The Court agrees. 3 McConnell has never made a claim in state court that lethal injection is unconstitutional 4 in all circumstances. See Appellant’s Opening Brief, Exh. 1 (ECF No. 25-2); Petition for 5 Writ of Habeas Corpus, Exh. 5 (ECF No. 106-5); Supplement to Petition for Writ of 6 Habeas Corpus (Post-Conviction), Exh. 10 (ECF No. 106-10); Appellant’s Opening 7 Brief, Exh. 6 (ECF No. 25-6, ECF No. 25-7, pp. 1–28); Petition for Writ of Habeas 8 Corpus (Post-Conviction), Exh. 493 (ECF No. 96-1); Appellant’s Opening Brief, Exh. 9 484 (ECF No. 89-1). The Court determines, then, that this claim is unexhausted, but 10 that if McConnell were to return to state court to exhaust the claim it would be ruled 11 procedurally barred. See Part III.B.2., supra. Therefore, the anticipatory default doctrine 12 applies, and the Court considers this claim to be technically exhausted but procedurally 13 defaulted. See Dickens, 740 F.3d at 1317. McConnell makes no showing to overcome 14 this procedural default. The Court will grant Respondents’ motion to dismiss Claim 18A1 15 on procedural default grounds. 16 34. Claim 18A2 17 In Claim 18A2, McConnell claims that his death sentence is unconstitutional 18 because execution by lethal injection as it would be carried out in Nevada is 19 unconstitutional. Second Amended Petition (ECF No. 95), pp. 282, 292–301. 20 Respondents argue that this claim is time-barred, unexhausted in state court, 21 and not ripe. See Motion to Dismiss (ECF No. 122), pp. 17, 30–31; Reply (ECF No. 22 145), pp. 21, 44, 47. Respondents raise serious questions about the procedural viability 23 of this claim; however, as it is unclear whether the State has yet established the 24 protocol by which McConnell's execution would be conducted, the Court will deny 25 Respondents' motion to dismiss Claim 18A2 and will leave these questions, and any 26 other issues concerning the claim, to be determined after Respondents file an answer 27 and McConnell a reply. The denial of the motion to dismiss this claim is without 1 prejudice to Respondents raising the same arguments regarding the claim in their 2 answer. 3 35. Claim 18B 4 In Claim 18B, McConnell claims that his death sentence is unconstitutional 5 because Nevada’s death-penalty scheme does not narrow the class of persons eligible 6 for the death penalty. Second Amended Petition (ECF No. 95), pp. 282, 301–02. 7 Respondents argue that Claim 18B is barred by the statute of limitations. See 8 Motion to Dismiss (ECF No. 122), p. 17; Reply (ECF No. 145), p. 21. The Court 9 disagrees. Claim 18B of McConnell’s second amended petition shares a common core 10 of operative fact with Claim 19 in McConnell’s original petition. See Petition for Writ of 11 Habeas Corpus (ECF No. 1), pp. 136–42. Claim 18B therefore relates back to 12 McConnell’s original petition and is not barred by the statute of limitations. The Court will 13 deny Respondents’ motion to dismiss Claim 18B on statute of limitations grounds. 14 Respondents argue that Claim 18B is procedurally defaulted. See Motion to 15 Dismiss (ECF No. 122), p. 29; Reply (ECF No. 145), p. 45. Here again, the Court 16 disagrees. McConnell asserted such a claim on his direct appeal. See Appellant’s 17 Opening Brief, Exh. 1, pp. 46–47 (ECF No. 25-2, pp. 52–53). The Court will deny 18 Respondents’ motion to dismiss Claim 18B on procedural default grounds. 19 36. Claim 18C 20 In Claim 18C, McConnell claims that the death penalty is unconstitutional. 21 Second Amended Petition (ECF No. 95), pp. 282, 303–04. 22 Respondents argue that Claim 18C is barred by the statute of limitations. See 23 Motion to Dismiss (ECF No. 122), p. 17; Reply (ECF No. 145), p. 21. The Court 24 disagrees. Claim 18C of McConnell’s second amended petition shares a common core 25 of operative fact with Claim 18 in McConnell’s original petition. See Petition for Writ of 26 Habeas Corpus (ECF No. 1), pp. 122–34. Claim 18C therefore relates back to 27 McConnell’s original petition and is not barred by the statute of limitations. The Court will 1 Respondents argue that Claim 18C is procedurally defaulted. See Motion to 2 Dismiss (ECF No. 122), pp. 29–30; Reply (ECF No. 145), p. 45. The Court agrees. 3 McConnell did not assert this claim on his direct appeal. See Appellant’s Opening Brief, 4 Exh. 1 (ECF No. 25-2). McConnell did assert such a claim in his first state habeas 5 action (see Supplement to Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 6 10, pp. 34–73 (ECF No. 106-10, pp. 35–74)), but the Nevada Supreme Court ruled the 7 claim to be procedurally barred under Nev. Rev. Stat. § 34.810 because it was not 8 raised on direct appeal. McConnell, 125 Nev. at 258, 212 P.3d at 317. The Court 9 determines that Nev. Rev. Stat. § 34.810 is adequate to support application of the 10 procedural default doctrine. See Part III.C.2., supra. The Court also determines that the 11 Nevada Supreme Court’s application of Nev. Rev. Stat. § 34.810 was independent of 12 federal law. McConnell does not make any showing of cause and prejudice relative to 13 the procedural default of this claim, or any other showing that excuses the procedural 14 default. The Court will grant Respondents’ motion to dismiss Claim 18C on procedural 15 default grounds. 16 37. Claim 18D 17 In Claim 18D, McConnell claims that Nevada’s death-penalty scheme is 18 unconstitutional because executive clemency is unavailable. Second Amended Petition 19 (ECF No. 95), pp. 282, 304–05. 20 Respondents concede, and the Court finds, that Claim 18D of McConnell’s 21 second amended habeas petition relates back to Claim 18 of his first amended petition, 22 and that, therefore, Claim 18D is not barred by the statute of limitations. See Motion to 23 Dismiss (ECF No. 122), pp. 17–18; Reply (ECF No. 145), p. 22; see also First Amended 24 Petition (ECF No. 24), pp. 177–91. The Court will deny Respondents’ motion to dismiss 25 Claim 18D on statute of limitations grounds. 26 Respondents argue that Claim 18D is procedurally defaulted. See Motion to 27 Dismiss (ECF No. 122), pp. 29–30; Reply (ECF No. 145), pp. 45–46. The Court agrees. 1 unavailable. See Appellant’s Opening Brief, Exh. 1 (ECF No. 25-2); Petition for Writ of 2 Habeas Corpus, Exh. 5 (ECF No. 106-5); Supplement to Petition for Writ of Habeas 3 Corpus (Post-Conviction), Exh. 10 (ECF No. 106-10); Appellant’s Opening Brief, Exh. 6 4 (ECF No. 25-6, ECF No. 25-7, pp. 1–28); Petition for Writ of Habeas Corpus (Post- 5 Conviction), Exh. 493 (ECF No. 96-1); Appellant’s Opening Brief, Exh. 484 (ECF No. 6 89-1). The Court determines, then, that this claim is unexhausted, but that if McConnell 7 were to return to state court to exhaust the claim it would be ruled procedurally barred. 8 See Part III.B.2., supra. Therefore, the anticipatory default doctrine applies, and the 9 Court considers this claim to be technically exhausted but procedurally defaulted. See 10 Dickens, 740 F.3d at 1317. The Court will grant Respondents’ motion to dismiss Claim 11 18D on procedural default grounds. 12 38. Claim 18E 13 In Claim 18E, McConnell claims that Nevada’s death-penalty scheme operates in 14 an unconstitutionally arbitrary and capricious manner. Second Amended Petition (ECF 15 No. 95), pp. 282, 305. This claim is essentially the same as Claim 18B, albeit with less 16 detail. The Court will deny Respondents’ motion to dismiss this claim for the same 17 reasons it denies Respondents’ motion to dismiss Claim 18B. See Part III.D.35., supra. 18 39. Claim 18F 19 In Claim 18F, McConnell claims that his convictions and death sentence are 20 unconstitutional because his trial and appellate counsel were ineffective for failing to 21 assert the claims in Claims 18A, 18B, 18C, 18D and 18E. Second Amended Petition 22 (ECF No. 95), pp. 282, 305. 23 Respondents argue that Claim 18F is barred by the statute of limitations. See 24 Motion to Dismiss (ECF No. 122), p. 18; Reply (ECF No. 145), p. 22. The Court agrees 25 with respect to parts of Claim 18F. The Court finds that all of the substantive claims in 26 Claims 18A1, 18A2, 18B, 18C, 18D and 18E were asserted in either McConnell’s 27 original petition or his first amended petition, or both. See Parts III.D.33., III.D.35., 1 1), pp. 69–81, 122–34; 136–42; First Amended Petition (ECF No. 24), pp. 177–91. 2 However, in his original and first amended petitions, it was only as to some of those 3 substantive claims that McConnell asserted ineffective assistance of his trial or 4 appellate counsel for failure to raise the claims. In his original petition, McConnell 5 claimed ineffective assistance of trial counsel with respect to the claim in Claim 18A2 6 (the claim that execution by lethal injection as it would be carried out in Nevada is 7 unconstitutional). See Petition for Writ of Habeas Corpus (ECF No. 1), p. 81. Also in his 8 original petition, McConnell claimed ineffective assistance of appellate counsel with 9 respect to the claims in Claims 18A2, 18B (the claim that Nevada’s death-penalty 10 scheme does not narrow the class of persons eligible for the death penalty), 18C (the 11 claim that the death penalty is unconstitutional), and 18E (another claim that Nevada’s 12 death-penalty scheme does not narrow the class of persons eligible for the death 13 penalty). See Petition for Writ of Habeas Corpus (ECF No. 1), p. 157. In his first 14 amended petition, McConnell did not claim ineffective assistance of either trial or 15 appellate counsel regarding any of the claims in Claims 18A1, 18A2, 18B, 18C, 18D 16 and 18E. See First Amended Petition (ECF No. 24). Therefore, with respect to the 17 claims of ineffective assistance of trial counsel regarding Claim 18A2 and ineffective 18 assistance of appellate counsel regarding Claims 18A2, 18B, 18C and 18E, the Court 19 finds that McConnell’s claims in 18F relate back to his original petition and are not 20 barred by the statute of limitations; the remainder of the claims in Claim 18F do not 21 relate back and are barred by the statute of limitations, and the motion to dismiss will be 22 granted as to those claims on statute of limitations grounds. 23 Respondents argue that Claim 18F is procedurally defaulted. See Motion to 24 Dismiss (ECF No. 122), p. 30; Reply (ECF No. 145), pp. 45–46. The Court agrees with 25 respect to all but one claim in Claim 18F. Other than the claim of ineffective assistance 26 of appellate counsel for not raising Claim 18C on his direct appeal, McConnell has 27 never made any of the claims of ineffective assistance of counsel in Claim 18F in state 1 Corpus, Exh. 5 (ECF No. 106-5); Supplement to Petition for Writ of Habeas Corpus 2 (Post-Conviction), Exh. 10 (ECF No. 106-10); Appellant’s Opening Brief, Exh. 6 (ECF 3 No. 25-6, ECF No. 25-7, pp. 1–28); Petition for Writ of Habeas Corpus (Post- 4 Conviction), Exh. 493 (ECF No. 96-1); Appellant’s Opening Brief, Exh. 484 (ECF No. 5 89-1). In his first state habeas action, McConnell asserted a claim that his appellate 6 counsel was ineffective for not raising the claim in Claim 18C (the claim that the death 7 penalty is unconstitutional) on his direct appeal (see Supplement to Petition for Writ of 8 Habeas Corpus (Post-Conviction), Exh. 10, pp. 34–73, 113 (ECF No. 106-10, pp. 35– 9 74, 114)), and the Nevada Supreme Court appears to have affirmed the denial of relief 10 on that claim without discussion. See McConnell, 125 Nev. 243, 212 P.3d 307. The 11 remainder of the claims in Claim 18F are unexhausted in state court. The Court 12 determines, though, that if McConnell were to return to state court to exhaust those 13 claims they would be ruled procedurally barred. See Part III.B.2., supra. Therefore, the 14 anticipatory default doctrine applies, and the Court considers the claims in Claim 18F, 15 with the exception of the claim of ineffective assistance of appellate counsel with 16 respect to Claim 18C, to be technically exhausted but procedurally defaulted (see 17 Dickens, 740 F.3d at 1317), and the Court will grant the motion to dismiss Claim 18F on 18 procedural default grounds to that extent. 19 So, summarizing the Court’s rulings regarding Claim 18F:

20 - the claim of ineffective assistance of trial counsel, regarding Claim 18A1 is dismissed on both statute of limitations and 21 procedural default grounds;

22 - the claim of ineffective assistance of trial counsel, regarding Claim 18A2 is dismissed on procedural default grounds; 23 - the claim of ineffective assistance of trial counsel, regarding 24 Claim 18B is dismissed on both statute of limitations and procedural default grounds; 25 - the claim of ineffective assistance of trial counsel, regarding 26 Claim 18C is dismissed on both statute of limitations and procedural default grounds; 27 - the claim of ineffective assistance of trial counsel, regarding 1 Claim 18D is dismissed on both statute of limitations and procedural default grounds; 2 - the claim of ineffective assistance of trial counsel, regarding 3 Claim 18E is dismissed on both statute of limitations and procedural default grounds; 4 - the claim of ineffective assistance of appellate counsel, 5 regarding Claim 18A1 is dismissed on both statute of limitations and procedural default grounds; 6 - the claim of ineffective assistance of appellate counsel, 7 regarding Claim 18A2 is dismissed on procedural default grounds; 8 - the claim of ineffective assistance of appellate counsel, 9 regarding Claim 18B is dismissed on procedural default grounds; 10 - the motion to dismiss the claim of ineffective assistance of 11 appellate counsel regarding Claim 18C is denied;

12 - the claim of ineffective assistance of appellate counsel, regarding Claim 18D is dismissed on both statute of 13 limitations and procedural default grounds;

14 - the claim of ineffective assistance of appellate counsel, regarding Claim 18E is dismissed on procedural default 15 grounds. 16 E. Motion for Evidentiary Hearing 17 In his motion for evidentiary hearing (ECF No. 130), McConnell requests an 18 evidentiary hearing to establish that he received ineffective assistance of his appellate 19 and post-conviction counsel and can therefore show cause and prejudice with respect 20 to various of his claims. See Motion for Evidentiary Hearing (ECF No. 130). However, 21 with respect to the question whether McConnell can show cause and prejudice for any 22 procedural default on account of ineffective assistance of his appellate or post- 23 conviction counsel, the Court defers consideration of those issues until after the parties 24 file an answer and reply and the merits of McConnell’s claims are fully briefed. 25 Therefore, an evidentiary hearing on those issues is unwarranted at this time. 26 McConnell’s motion for an evidentiary hearing to support his opposition to the motion to 27 dismiss will be denied, without prejudice. McConnell may file a new motion for an 1 Respondents’ answer, as contemplated in the scheduling order entered December 4, 2 2019 (ECF No. 91). 3 IV. CONCLUSION 4 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 5 122) is GRANTED IN PART AND DENIED IN PART. The following claims in 6 Petitioner’s second amended habeas petition are dismissed: 7 - Claim 2A; 8 - Claim 2C; 9 - Claim 2D; 10 - Claim 2E; 11 - Claim 2F; 12 - Claim 2G; 13 - Claim 4; 14 - Claim 7; 15 - Claim 8B; 16 - Claim 8C; 17 - Claim 8D;

18 - Claim 9, to the extent the claim is based on the following comments alleged by McConnell to have been prosecutorial misconduct: 19 - “When you cast a play in hell….” Second Amended 20 Petition (ECF No. 95), p. 236, lines 14–20;

21 - “[T]hink of April … ‘April, I know your dad just lost your mom. I won’t kill you.’” Id., p. 238, lines 1–4; and 22 - “What do I agree with that [McConnell] said? Brian 23 was a good man.” Id., p. 238, lines 10–12; 24 - Claim 14;

25 - Claim 16, to the extent that McConnell claims that his appellate counsel was ineffective for failing to assert, on his direct appeal, 26 the claims in Claims 2, 4, 8B, 8C and 8D; 27 - Claim 18A1; 1 - Claim 18D;

2 - Claim 18F, except the claim that McConnell’s appellate counsel was ineffective for not raising the claim in Claim 18C on his direct 3 appeal. 4 In all other respects, the motion to dismiss is denied. 5 IT IS FURTHER ORDERED that Petitioner’s Motion for Evidentiary Hearing (ECF 6 No. 130) is DENIED. 7 IT IS FURTHER ORDERED that Respondents shall, within 180 days from the 8 date of this order, file an answer, responding to the remaining claims in Petitioner’s 9 Second Amended Petition for Writ of Habeas Corpus (ECF No. 95). The time for 10 Petitioner to file a reply to Respondents’ answer, as set forth in the December 4, 2019, 11 scheduling order (ECF No. 91), will be extended to 120 days. In all other respects, the 12 schedule for further proceedings set forth in the December 4, 2019, scheduling order 13 (ECF No. 91) will remain in effect. 14 IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 15 25(d), William Reubart is substituted for William Gittere as the respondent warden. The 16 Clerk of the Court is directed to update the docket to reflect this change. 17

18 DATED THIS _2_4_ day of _________J_u_l_y__________, 2022.

20 GLORIA M. NAVARRO 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27