Babb v. Lozowsky

• Decision Date: 06 June 2013
• Docket Number: No. 11–16784.,11–16784.
• Citation: 719 F.3d 1019
• Parties: Latisha Marie BABB, Petitioner–Appellee, v. Jennifer LOZOWSKY and E.K. McDaniel, Respondents–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

719 F.3d 1019

Latisha Marie BABB, Petitioner–Appellee,

v.Jennifer LOZOWSKY and E.K. McDaniel, Respondents–Appellants.

No. 11–16784.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 20, 2012.

Filed Jan. 11, 2013.

Amended June 6, 2013.

Lisa A. Rasmussen, Las Vegas, NV, for Petitioner–Appellee.

Adam L. Woodrum and Victor–Hugo Schulze, II, Office of the Nevada Attorney General, Las Vegas, NV, for Respondent–Appellant.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding. D.C. No. 2:05–cv–00061–PMP–RJJ.

Before: A. WALLACE TASHIMA, RICHARD R. CLIFTON, and MARY H. MURGUIA, Circuit Judges.

ORDER

Nevada Attorneys for Criminal Justice's motion for leave to file an amicus curiae brief in support of Petitioner–Appellee is GRANTED (Doc. 41).

The Opinion filed January 11, 2013, appearing at 704 F.3d 1246, is amended as follows:

1. At slip op. 25, in the first sentence of the first full paragraph; 704 F.3d at 1258, in the first sentence of the first full paragraph, change “On federal habeas review, the Supreme Court certified a question to the Florida Supreme Court, asking whether, at the time Bunkley's conviction became final in 1989, his 2.5–3 inch pocketknife was a weapon under the law at that stage in its evolution” to “On federal habeas review, the Supreme Court remanded to the Florida Supreme Court to decide whether, at the time Bunkley's conviction became final in 1989, his 2.5–3 inch pocketknife was a weapon under the law at that stage in its evolution.”

2. At slip op. 25, in the third sentence in the first full paragraph; 704 F.3d at 1258, in the third sentence in the first full paragraph, change “The Supreme Court said that ‘If Bunkley's pocketknife fit ...’ ” to “The Supreme Court said that ‘[i]f Bunkley's pocketknife fit....’ ”

3. At slip op. 26, in the first sentence of the second full paragraph; 704 F.3d at 1259, in the first sentence of the first full paragraph, change “... but only certified a question to the Florida Supreme Court” to “... but only posed a question to the Florida Supreme Court.”

4. At slip op. 26, in the second sentence of the second full paragraph; 704 F.3d at 1259, in the second sentence of the first full paragraph, change “Although the Supreme Court stopped short of holding that changes in state law must be applied to convictions that are not yet final, Bunkley confirmed that failing to apply such changes would have the same effect as failing to give retroactive application to a clarification; it would permit the state to convict individuals who are not guilty of a crime under the applicable law” to “We disagree. Bunkley made clear that its remand to the Florida Supreme Court was necessary because the state court had to determine ‘ when the law changed,’ 538 U.S. at 842, 123 S.Ct. 2020. If the state courts' interpretation of an offense had evolved so as to exculpate the defendant of an element of the offense before the defendant's conviction became final, then the failure to apply state law as it existed at that time would violate the defendant's due process rights; it would permit the state to convict people of crimes of which they are not guilty under the applicable law. Id. at 840, 841, 123 S.Ct. 2020.”

5. At slip op. 27, in the first full sentence of the paragraph continuing from slip op. 26; 704 F.3d at 1259, in the fourth sentence of the first full paragraph, change “While it does not constitute an express holding, Bunkley made clear that Griffith 's holding, requiring new rules to apply to convictions that are not yet final, extends to changes in state law that narrow the category of conduct that can be considered criminal” to “Bunkley clarified that Griffith 's holding, requiring new rules to apply to convictions that are not yet final, extends to changes in state law that narrow the category of conduct that can be considered criminal.”

With these amendments, the panel has voted to deny Petitioner–Appellee Babb's and Respondent–Appellant Lozowsky's petitions for panel rehearing. Judge Clifton and Judge Murguia vote to deny the petitions for rehearing en banc and Judge Tashima so recommends.

The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for panel rehearing and the petitions for rehearing en banc are denied (Docs. 32, 33).

No further petitions for rehearing will be entertained in this case.

IT IS SO ORDERED.

OPINION

MURGUIA, Circuit Judge:

Appellants–Respondents Jennifer Lozowsky, the Warden, and the Nevada Attorney General (“the State”) appeal the district court's grant of a writ of habeas corpus to Appellee–Petitioner Latisha M. Babb pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Babb was convicted of first degree murder with a deadly weapon, and robbery with a deadly weapon, by a jury in Nevada state court for the murder of cab driver John Castro in connection with a robbery. The district court granted habeas relief, concluding that one of the instructions for first degree murder given in Babb's case, known as the Kazalyn instruction, violated her due process rights and that the improper instruction did not constitute harmless error.

We REVERSE.

Background

On October 26, 1997, cab driver John Castro was found shot in the head in Washoe County, Nevada. He ultimately died from the wound.

While investigating another shooting, police obtained warrants to search the home and vehicle of Babb's codefendant and live-in boyfriend, Shawn Harte. At the time the police stopped Harte in his car, Babb was with him. The police found a .22 caliber pistol, a spotlight, a hand-held radio, a magazine, and ammunition in the car. A shell casing had been found inside the victim's taxi cab. Forensic testing revealed that the shell casing had been fired from the gun found in Harte's car.

Information obtained from Harte led police to question Babb's other co-defendant, Weston Sirex (“Sirex”), who worked at a Reno taxi company. Sirex told the investigators:

that it started out as a robbery, that they were northbound on Cold Springs Road, that he [Sirex] was looking out the window, that he [Sirex] turned around just in time to hear a shot and see the flash of a weapon, and that it wasn't supposed to happen that way, or that he [Sirex] didn't know it was going to happen that way.

Sirex also admitted to being party to discussions that a robbery and a killing would take place, although he said that the cab driver was not to be killed, unless absolutely necessary. Babb, Harte, and Sirex were tried together, and Sirex's statements to police were read to the jury during the trial.

Harte also eventually made statements to police, wherein he admitted to shooting Castro in the head. In addition, he confessed to being the shooter in a letter to a woman he had dated. He wrote:

So this cab driver is just spurting off his mouth about how he got ‘ripped off’ $1000 cash earlier, blah blah blah. Now what could that all have been about? Drugs.... It's because of people like him that I don't have a son or daughter....

I chambered a round.... Point blank. An inch above the ear and two behind. Boom. That simple. That easy. No remorse. Honestly.

I jumped up and let the cab coast right in front of a drug dealer's house in Cold Springs. Perfect. Windows were up, so it was noiseless.... We left. Went to Circus Circus. Played some games, gambled—continued our good time. Went to Taco Bell. And ate. Went home. Simple. Nothing to it. Just another chore, like taking out the trash, except easier. And funner.

The letter and Harte's statements to the police were also read to the jury.

Harte and Sirex did not testify at trial, and they did not mention Babb's involvement in their statements to the police. When Babb was interviewed by a newspaper reporter after her arrest, however, she made the following statements to the reporter admitting her involvement in the robbery:

I was the driver.

It was maybe a 15–minute plan. We weren't out to get this specific person.

I jokingly said, “Let's rob a cab. It's easy enough.” So we did.

I didn't hear the gunshot. I didn't even know he was shot until I pulled up alongside the car and heard him [the driver] breathing.

The cab stopped in Cold Springs, and I pulled in front of it.

I looked and saw him in the front seat with his head rolled back.

When I thought about it later, I kept hearing his breath.

I thought maybe someone else would rob a cab and they'd think he did it. I was broke and I had just lost my job. I needed the money to pay my bills. I have a lot of debt.

For the money we got, that man's life wasn't worth it.

How do you tell people you were involved in a murder? How will I tell my mom?

I acknowledge this happened and I feel bad. I have nothing to hide. What's done is done. This is forever, nobody will forget. You see it on TV and you know that you did that. I didn't want any of this.

Babb also did not testify at trial, but her statements to the reporter were read to the jury.

Babb was charged with robbing and murdering John Castro. The jury was given the following instruction for first degree murder:

As it applies to this case Murder of the First Degree is:

a) Murder which is any kind of willful, deliberate and premeditated killing: or

b) Murder which is committed in the perpetration of a Robbery. Murder in the Second Degree is all other kinds of Murder.

Instruction 18 (emphases added).

The jury instructions also included the following instruction for first degree murder, sometimes referred to as the Kazalyn instruction, named for the Nevada Supreme Court decision which approved it, Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992):

the unlawful killing must be accompanied with deliberate and clear intent to take life in order to constitute Murder of the First Degree. The intent to kill must be the result of...