Moore v. Helling, No. 12-15795 (9th Cir. 2014)
Annotate this CasePetitioner, convicted in Nevada state court of first degree murder, argued that his conviction was invalid due to the trial court's use of the Kazalyn instruction, which did not separately define the terms "willful," "deliberate," and "premeditated." After petitioner was convicted, but before his conviction became final, the Nevada Supreme Court invalidated the Kazlyn instruction and replaced it with an instruction separately defining the terms "willful," "deliberate," and "premeditated." The district court subsequently granted petitioner habeas corpus relief and the State appealed. The court held that White v. Woodall's clarification of the unreasonable-refusal-to-extend rule is "clearly irreconcilable" with Babb v. Lozowsky's conclusion that the Nevada Supreme Court unreasonably applied Supreme Court precedent by failing to apply a change in state law to Babb's pending conviction; Woodall thus "effectively overruled" Babb with respect to petitioners for whom, like Babb, the relevant state court decision pre-dated Bunkley v. Florida; and, for those convictions, the court was no longer bound by Babb. In this case, petitioner's conviction became final in 2001 upon the denial of his direct appeal. Because there can be fairminded disagreement regarding whether Griffith v. Kentucky and Fiore v. White (Fiore II) apply to post conviction changes in state law, the Nevada Supreme Court did not unreasonably apply clearly established federal law when it declined to apply the Byford v. State instruction to petitioner's case. Accordingly, the court reversed the district court's grant of the petition for a writ of habeas corpus and remanded with directions to enter judgment for the State, denying the petition.
Court Description: Habeas Corpus. The panel reversed the district court’s grant of Ray Oshun Moore’s habeas corpus petition challenging his Nevada conviction of first degree murder, and remanded with directions to enter judgment for the state, in a case in which the trial court gave a “Kazalyn instruction,” which did not separately define the terms “willful,” “deliberate,” and “premeditated.” After Moore was convicted, but before his conviction became final, the Nevada Supreme Court in Byford v. State, 994 P.2d 700, 713-15 (Nev. 2000), invalidated the Kazalyn instruction and replaced it with an instruction separately defining “willful,” “deliberate,” and “premeditated.” The Nevada Supreme Court subsequently determined that Byford represented a change in Nevada law and was applicable to cases pending on direct appeal when Byford was decided. In Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), which involved a habeas claim by a petitioner who was convicted of first degree murder under the Kazalyn instruction and whose conviction was not final when Byford was decided, this court held that the Nevada state court’s failure to apply the new Byford instruction was an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). After this court filed a Memorandum Disposition affirming the grant of Moore’s petition in substantial reliance on Babb, the Supreme Court decided White v. Woodall, 134 S. Ct. 1697 (2014), which clarified § 2254(d)(1)’s “unreasonable application” clause. The panel held that Woodall’s clarification of the unreasonable-refusal-to-extend rule is “clearly irreconcilable” with Babb’s conclusion that the Nevada Supreme Court unreasonably applied Supreme Court precedent by failing to apply a change in state law to Babb’s pending conviction, and that Woodall thus effectively overruled Babb with respect to petitioners for whom, like Babb, the relevant state court decision pre-dated Bunkley v. Florida, 538 U.S. 835 (2003) (directing the lower court to determine whether a potentially exonerating change in state law had occurred before the defendant’s conviction became final, and holding that the state court was required to apply that change to the defendant’s conviction if it found in the affirmative). Under Woodall, the panel concluded that the state court did not unreasonably apply clearly established federal law in denying Moore’s Byford claim, and for that reason reversed the district court’s grant of Moore’s petition.
This opinion or order relates to an opinion or order originally issued on March 24, 2014.
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