NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RYAN OSHUN MOORE, No. 12-15795
Petitioner - Appellee D.C. No. 3:05 cv-348-KJD
v.
DON HELLING; STATE OF NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents - Appellants.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted March 14, 2014
San Francisco, California
Before: FARRIS, TASHIMA, and McKEOWN, Circuit Judges.
The State of Nevada appeals the judgment of the district court granting Ryan
Oshun Moore’s petition for a writ of habeas corpus. Reviewing the district court’s
grant of the petition de novo, see McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th
Cir. 2008), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The State initially raised two issues in its appeal: first, whether the use of
the Kazalyn instruction was constitutional error; and second, whether any error was
harmless. After the State filed its appeal, this Court decided Babb v. Lozowsky,
719 F.3d 1019 (9th Cir. 2013), which resolved the first question. Cf. Hart v.
Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves an issue
in a precedential opinion, the matter is deemed resolved, unless overruled by the
court itself sitting en banc, or by the Supreme Court.”). Moore’s case was pending
on direct appeal when the Nevada Supreme Court decided Byford v. State, 994
P.2d 700 (Nev. 2000). Therefore, under Babb, the failure to apply the new Byford
instruction in Moore’s case was an unreasonable application of clearly established
federal law. Babb, 719 F.3d at 1032–33; see also 28 U.S.C. § 2254(d)(1). After
Babb was decided, the State conceded that the giving of the Kazalyn instruction
was constitutional error.
2. Therefore, the only remaining issue in this appeal is whether the
erroneous use of the Kazalyn instruction was harmless. We affirm the district
court’s determination that the error was not harmless. An instructional error is
harmless only if “it is reasonably probable that the jury would still have convicted
the petitioner on the proper instructions.” Babb, 719 F.3d at 1034. Based on the
particular facts and circumstances of this case, we cannot conclude that there is a
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reasonable probability that the jury would have convicted Moore of first degree
murder on the proper instructions.
First, we cannot be reasonably certain that the jury would have convicted
Moore of first degree murder based on a premeditation theory if given the proper
instructions. “Deliberation is the process of determining upon a course of action
to kill as a result of thought, including weighing the reasons for and against the
action and considering the consequences of the action.” Byford, 994 P.2d at 714.
“Premeditation is a design, a determination to kill, distinctly formed in the mind by
the time of the killing.” Id. The evidence here falls far short of establishing
premeditation and deliberation. Moore did not confess to the crime, and in fact
repeatedly asserted in his statement to the police that he did not shoot Branson
Clark, did not intend to shoot Clark, did not go to the site of the robbery with the
intent of killing anyone, and was not carrying the gun that matched Clark’s
wounds. Further, no witness testified as to having seen Moore shoot Clark, and
there is no evidence of any kind that Moore fired the shot that killed Clark. Under
these circumstances, we cannot say that it is reasonably probable that a properly
instructed jury would have convicted Moore of premeditated and deliberate
murder. Cf. Chambers v. McDaniel, 549 F.3d 1191, 1200–01 (9th Cir. 2008); Polk
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v. Sandoval, 503 F.3d 903, 912–13 (9th Cir. 2007), abrogated on other grounds as
recognized in Babb, 719 F.3d at 1028–30.
Second, we cannot be reasonably certain that the jury instead convicted
Moore based on a valid theory. Three of the four theories were affected by the
erroneous instruction, and nothing in the record indicates on which theory the jury
actually relied in convicting Moore. Neither the trial judge nor the attorneys
emphasized any particular theory. To the contrary, the trial judge told the jury that
it could convict on any theory and that the jurors need not all agree on which
theory to use; the prosecution emphasized that the jury could convict Moore on any
of the four theories; and the defense similarly focused equally on all theories,
arguing that the prosecution had met its burden on none. Under these
circumstances, we cannot “be reasonably certain that no juror convicted [Moore]
based on premeditation . . . .” Babb, 719 F.3d at 1034; cf. id. (finding the
erroneous use of the Kazalyn instruction harmless when the prosecution
emphasized the valid theory of felony murder in closing argument and the trial
judge instructed the jury to rely on premeditated murder only if it did not find the
defendant guilty of felony murder).
The judgment of the district court is AFFIRMED.
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