Moore v. Helling

• Decision Date: 15 August 2014
• Docket Number: No. 12–15795.,12–15795.
• Citation: 763 F.3d 1011
• Parties: Ryan Oshun MOORE, Petitioner–Appellee, v. Don HELLING; Nevada Attorney General, Respondents–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1011

Ryan Oshun MOORE, Petitioner–Appellee,

v.Don HELLING; Nevada Attorney General, Respondents–Appellants.

No. 12–15795.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 14, 2014.

Memorandum Disposition Filed: March 24, 2014.

Petition for Rehearing Granted and Memorandum Disposition Withdrawn: July 3, 2014.

Opinion Filed Aug. 15, 2014.

Catherine Cortez Mastro, Attorney General of Nevada, Robert E. Wieland (argued), Senior Deputy Attorney General, Reno, NV, for Respondents–Appellants.

Rene L. Valladares, Federal Public Defender, Debra A. Bookout and Ryan Norwood (argued), Assistant Federal Public Defenders, Las Vegas, NV, for Petitioner–Appellee.

Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding. DC No. 3:05 cv–0348 KJD–VPC.

Before: JEROME FARRIS, A. WALLACE TASHIMA, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Petitioner–Appellee Ryan Oshun Moore was convicted in Nevada state court of first degree murder, defined in relevant part as a “willful, deliberate and premeditated killing.” Nev.Rev.Stat. § 200.030(1)(a) (2013), and other crimes. The trial court gave the first degree murder instruction commonly used in Nevada at the time, known as the “ Kazalyn instruction,”¹ which did not separately define the terms “willful,” “deliberate,” and “premeditated.” In 2000, after Moore was convicted, but before his conviction became final, the Nevada Supreme Court invalidated the Kazalyn instruction and replaced it with an instruction separately defining the terms “willful,” “deliberate,” and “premeditated.” See Byford v. State, 116 Nev. 215, 994 P.2d 700, 713–15 (2000). 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. See Nika v. State, 124 Nev. 1272, 198 P.3d 839, 859 (2008) (citing Byford, 994 P.2d at 713–15).

Moore argued on direct appeal that his conviction was invalid due to the trial court's use of the Kazalyn instruction, but his appeal was denied. Moore v. State, 117 Nev. 659, 27 P.3d 447, 450 n. 16 (2001). Moore then filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Nevada, contending, among other things, that his due process rights were violated by the trial court's use of the Kazalyn instruction. The district court granted Moore's petition, Moore v. Helling, 861 F.Supp.2d 1195, 1207–08 (D.Nev.2012), and Respondents–Appellants Don Helling, Warden, and the Nevada Attorney General (the “State”) appealed.

On March 24, 2014, we filed a Memorandum Disposition affirming the district court's grant of Moore's petition. Moore v. Helling, 2014 WL 1152588 (9th Cir. Mar. 24, 2014). In that disposition, we relied substantially on Babb v. Lozowsky, 719 F.3d 1019 (9th Cir.2013), which also 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. Moore, 2014 WL 1152588, at *1 (citing Babb, 719 F.3d at 1032–33). Babb held that the Nevada state court's failure to apply the new Byford instruction in such circumstances was an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). Babb, 719 F.3d at 1032–33. We held in Moore, following Babb as controlling Circuit authority, that the Nevada state court's failure to apply the new Byford instruction to Moore's appeal was an unreasonable application of clearly established federal law. Moore, 2014 WL 1152588, at *1.

On April 7, 2014, the State filed a petition for panel rehearing and rehearing en banc. Dkt. # 50. While the State's petition for rehearing was pending, the U.S. Supreme Court decided White v. Woodall, ––– U.S. ––––, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014), which clarified § 2254(d)(1)'s “unreasonable application” clause. In light of Woodall, we granted the State's petition for panel rehearing and withdrew our March 24, 2014 Memorandum Disposition. Dkt. # 52. We now reverse the district court's judgment and remand. We hold that Babb's application of § 2254(d)(1) is “clearly irreconcilable” with Woodall, as applied to petitioners in Moore's position and is therefore no longer controlling in this case. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.2003) (en banc). Under Woodall, we conclude that the state court did not unreasonably apply clearly established federal law in denying Moore's Byford claim and, for that reason, reverse the district court's grant of Moore's petition for a writ of habeas corpus.

I.

A.

Moore participated in a robbery during which his co-defendant, Charles Morris (“Morris”), shot and killed Branson Clark (“Clark”). Moore, Morris, and two others planned to rob the occupants of an apartment in Reno, Nevada. The four planned to wait outside the apartment building until someone entered the unit they intended to rob, at which point they would enter the unit and steal money and drugs that they believed the occupants of the unit possessed.

While the four were waiting outside the apartment, one of them observed Clark enter the unit carrying bags. At that point, they decided to rob Clark when he left the unit. When Clark exited the unit, Morris followed Clark around the apartment building, and Moore followed Morris. While Moore was following Morris, he saw Morris aim his gun and then, apparently when Morris was no longer in view, heard four gunshots. Moore then rounded the corner of the building, saw Morris running, and took off running himself.

Clark, who was a delivery driver at a local restaurant and went to the apartment complex to deliver a food order, was killed. His wounds were consistent with rifle shots, and there were two weapons recovered at the scene, an assault rifle and a semiautomatic pistol, both of which belonged to Moore. After the robbery, Moore gave a lengthy statement to the police, in which he admitted to his involvement in the robbery and described the details explained above, but claimed that he did not shoot Clark. The State charged Moore with first degree murder, robbery, and conspiracy to commit robbery.

The prosecution asserted four theories of first degree murder: premeditated and deliberate murder by means of violence to a person; felony murder; aiding and abetting another in premeditated and deliberate murder; and premeditated and deliberate murder as a result of a conspiracy to commit robbery. As to premeditated and deliberate murder by means of violence to a person, the trial court gave the Kazalyn instruction. On September 24, 1999, the jury returned a general verdict in which it convicted him of first degree murder, robbery, and conspiracy.

B.

In 2000, after Moore was convicted but before his conviction became final, the Nevada Supreme Court decided Byford, which invalidated the Kazalyn instruction. The Nevada Supreme Court concluded that the instruction improperly blurred the distinction between first and second degree murder by failing to provide an independent definition of “deliberation,” which is required for first, but not second, degree murder. Byford, 994 P.2d at 713. It therefore set forth new instructions to be used for first degree murder based on a willful, deliberate, and premeditated killing, which defined each of those three terms separately. Id. at 714. Eight years later, the Nevada Supreme Court determined that Byford represented a change in Nevada law that narrowed the scope of criminal conduct constituting first degree murder and, for that reason, was applicable to cases pending on direct appeal when Byford was decided. Nika, 198 P.3d at 849–50.

Moore's appeal was pending when Byford was decided. In his direct appeal, he argued, in relevant part, that his first degree murder conviction should be reversed due to the trial court's use of the Kazalyn instruction. The Nevada Supreme Court rejected the Byford claim in a footnote. Moore, 27 P.3d at 450 n. 16. In his federal habeas petition, Moore again raised the Byford claim, arguing that the use of the Kazalyn instruction violated his due process rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. The district court granted Moore relief on this ground, Moore, 861 F.Supp.2d at 1207–08, and the State appealed.

II.

This Court reviews a district court's decision to grant or deny a habeas petition de novo. Aguilar v. Woodford, 725 F.3d 970, 972 (9th Cir.2013). Under 28 U.S.C. § 2254(d), a habeas petitioner whose claim was adjudicated on the merits in state court may obtain relief in federal court only if the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “Section 2254(d)(1)'s clearly established phrase refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citation and internal quotation marks omitted).

III.

As we explained in the now-withdrawn memorandum disposition, under Babb, Moore would have been entitled to relief pursuant to § 2254(d)(1). We now hold, however, that in light of the Supreme Court's recent decision in Woodall, Babb no longer controls the outcome of this case. After Woodall, we can no longer conclude that the Nevada court's failure to apply Byford to Moore's conviction was contrary to, or an unreasonable application of, clearly established federal law under § 2254(d)(1).

A.

Before Woodall, this Circuit recognized two ways in which a petitioner could show an unreasonable...