CLARENCE ELLIOT V. BRIAN WILLIAMS, No. 11-17435 (9th Cir. 2013)
Annotate this Case
Download PDF
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 21 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CLARENCE H. ELLIOT, Petitioner - Appellee, v. BRIAN WILLIAMS; ATTORNEY GENERAL FOR THE STATE OF NEVADA, Respondents - Appellants. ) ) ) ) ) ) ) ) ) ) ) ) No. 11-17435 D.C. No. 2:08-cv-00829-GMN-RJJ MEMORANDUM* Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Submitted November 4, 2013** San Francisco, California Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges. Brian Williams, Warden, Nevada Southern District Corrections Center, and the Nevada Attorney General (collectively the State ) appeal the district court s * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). grant of a writ of habeas corpus to Clarence Elliot. See 28 U.S.C. § 2254. We affirm. The State asserts that Elliot s right to due process under the Fourteenth Amendment to the United States Constitution was not violated when the jury at his trial was improperly instructed on the deliberation element of first degree murder. See Nev. Rev. Stat. § 200.030(1)(a). We disagree. At the time it decided Elliot s case, the Nevada Supreme Court had determined that the instruction regarding deliberation given at Elliot s trial was no longer proper, but that the new instructional requirements would not apply to defendants, like Elliot, even though their cases were not final when the new requirements were adopted. However, we later decided that a failure to apply the new requirements to those defendants violated their due process rights. See Babb v. Lozowksy, 719 F.3d 1019, 1030 33 (9th Cir. 2013).1 Of course, to be entitled to relief, Elliot was required to show that the error was not harmless,2 but the State 1 Incidentally, the Nevada Supreme Court agrees that its prior position was erroneous. See Nika v. State, 124 Nev. 1272, 1287, 198 P.3d 839, 850 (2008). 2 See Fry v. Pliler, 551 U.S. 112, 116, 127 S. Ct. 2321, 2325, 168 L. Ed. 2d 16 (2007); Brecht v. Abrahamson, 507 U.S. 619, 637 38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993). 2 does not argue that it was harmless.3 Moreover, on this record, we would be hard pressed to find harmless error; at the very least there is grave doubt that it was harmless. See O Neal v. McAninch, 513 U.S. 432, 437 38, 115 S. Ct. 992, 995, 130 L. Ed. 2d 947 (1995); Coleman v. Calderon, 210 F.3d 1047, 1051 (9th Cir. 2000). The State does briefly suggest that because after Elliot filed his petition for habeas corpus relief in the district court, the Nevada Supreme Court indicated that it would give relief in cases that were not final, he should have returned to the State courts. However, he had already invoked one complete round of the State s established appellate review process, 4 and he was not required to do more. AFFIRMED. 3 Arguments that are not raised in the opening brief are waived. See Brooks v. City of San Mateo, 229 F.3d 917, 922 n.1 (9th Cir. 2000); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). 4 See O Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999); see also Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
