Babb v. Lozowsky, et al, No. 11-16784 (9th Cir. 2013)
Annotate this CaseRespondents appealed the district court's grant of habeas corpus to petitioner pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 2254. Petitioner was convicted of first degree murder with a deadly weapon and robbery with a deadly weapon. The district court granted habeas relief, concluding that the Kazalyn instruction for first degree murder given in petitioner's case violated her due process rights and that the improper instruction did not constitute harmless error. The court held that, in light of Nika v. State, petitioner's claim that the Kazalyn instruction violated her due process rights because it did not provide a distinct definition for deliberation failed. Byford v. State, which narrowed the scope of conduct that could qualify as first degree murder by expanding and separating definitions of premeditation, deliberation, and willfulness, should be applied to petitioner's conviction, which was not final at the time Byford was decided. The court held that the erroneous instructions constituted harmless error. The court reversed and remanded for the district court to consider petitioner's other claims in her petition which were not addressed by the district court.
Court Description: Habeas Corpus. The panel reversed the district court’s grant of a 28 U.S.C. § 2254 habeas corpus petition challenging a murder and robbery conviction, due to an unconstitutional jury instruction given pursuant to Kazalyn v. State, 825 P.2d 578 (Nev. 1992). While petitioner Babb’s direct appeal was pending, the Nevada Supreme Court invalidated the Kazalyn instruction in Byford v. State, 994 P.2d 700 (Nev. 2000), which held that the Kazalyn instruction blurred the three elements of first degree murder – willfulness, deliberation and premeditation – and relieved the state of its burden of proving each element of the crime. Although this Court granted habeas relief in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), based on a Kazalyn instruction, the Nevada Supreme Court subsequently clarified in Nika v. State, 198 P.3d 839 (Nev. 2008), that Byford announced a new interpretation of the state murder statute that changed the law, as opposed to clarifying it. The district court determined that it was bound by this Court’s decision in Polk and granted habeas relief to Babb. The panel first held that the Nevada state court unreasonably applied established federal law expressed in Bunkley v. Florida, 538 U.S. 835 (2003) (per curiam), and violated Babb’s due process rights by not applying Byford. The panel explained that Polk did not control the outcome of this case because Nika undermined this Court’s holding in Polk as to the constitutionality of the Kazalyn instruction. The panel further explained that Byford applied to Babb’s case because newly declared constitutional rules must be applied to convictions that were not yet final at the time the change occurs. The panel next held that the error was harmless because the panel was reasonably certain that no juror convicted Babb based on the theory of premeditation, given overwhelming evidence supporting the felony murder theory and the prosecutor’s focus on that theory during closing argument. The panel remanded for the district court to consider Babb’s other claims, which were not addressed when the district court granted relief.
The court issued a subsequent related opinion or order on June 6, 2013.
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