NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DENNIS K. KIEREN, JR., No. 11-17915
Petitioner - Appellee, D.C. No. 3:07 cv-0341- LRH
v.
AMENDED MEMORANDUM*
STATE OF NEVADA ATTORNEY
GENERAL; ROBERT LeGRAND,
Warden,
Respondents - Appellants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted March 14, 2014
San Francisco, California
Memorandum Disposition Filed: March 25, 2014
Motion for Reconsideration Granted and
Memorandum Disposition Withdrawn: July 3, 2014
Amended Memorandum Disposition Filed: September 22, 2014
Before: FARRIS, TASHIMA, and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The State of Nevada appeals the judgment of the district court granting
Dennis Kieren’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 reverse and remand.
1. Kieren exhausted his Fifth and Fourteenth Amendments due process
claim. Neither of the State’s arguments to the contrary convinces us otherwise.
First, a claim may be exhausted even if it is cited in only a reply brief. Cf. Scott v.
Schriro, 567 F.3d 573, 582-83 (9th Cir. 2009) (per curiam) (holding exhausted a
claim raised only in an appendix to a petition for review). Although the state court
could have deemed Kieren’s claim waived under Nevada Rules of Appellate
Procedure 28(c), it did not. Second, Kieren fairly presented his fair trial due
process claim by citing “his right to a fair trial guaranteed by the Sixth
Amendment.” The due process fair trial right and the Sixth Amendment fair trial
right are closely intertwined. See Strickland v. Washington, 466 U.S. 668, 684-85
(1984). And, under the facts of this case, due process and Sixth Amendment fair
trial challenges are “substantial[ly] equivalent.” Picard v. Connor, 404 U.S. 270,
278 (1971). Kieren’s “fair trial” claim therefore allowed the state court an
adequate “opportunity to pass upon and correct” the constitutionally erroneous use
2
of the Kazalyn first degree murder jury instruction at Kieren’s trial. Id. at 275
(internal quotation marks omitted).
2. We filed our original Memorandum Disposition on March 25, 2014. See
Kieren v. Nev. Att’y Gen., 2014 WL 1202582 (9th Cir. Mar. 25, 2014). In that
Disposition, we affirmed the district court’s grant of Kieren’s petition, relying
substantially on our earlier decision in Babb v. Lozowsky, 719 F.3d 1019 (9th Cir.
2013). On July 3, 2014, we granted the State’s Motion for Reconsideration of our
denial of the State’s Petition for Panel Rehearing to consider the effect of the
Supreme Court’s intervening decision in White v. Woodall, 134 S. Ct. 1697 (2014).
We recently held that Woodall effectively overruled Babb. See Moore v. Helling,
No. 12-15795, 2014 WL 3973407, at *10 (9th Cir. Aug. 15, 2014). We further
held that, at least before 2003, it was not an unreasonable application of clearly
established federal law not to apply Byford v. State, 994 P.2d 700 (Nev. 2000), to
convictions pending at the time that Byford was decided. See Moore, 2014 WL
3973407, at *9-*10. Kieren’s conviction was pending at the time Byford was
decded, but his conviction became final – and the Nevada Supreme Court issued its
relevant decision – in 2002. We, therefore, hold that the Nevada Supreme Court
did not unreasonably apply clearly established federal law when it declined to
apply Byford in Kieren’s case. See id. The district court erred in relying on both
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Nika v. State, 198 P.3d 839 (Nev. 2008), and Polk v. Sandoval, 503 F.3d 903 (9th
Cir. 2007), to grant Kieren relief.1 See Woodall, 134 S. Ct. 1697; Moore, 2014 WL
3973407, at *10.
• ! •
For the reasons set forth above, we reverse the district court’s grant of Kieren’s petition
for a writ of habeas corpus and remand for consideration of Kieren’s remaining claims.
REVERSED and REMANDED.
Future petitions for rehearing will be entertained from this amended memorandum.
1
As we noted in Moore, 2014 WL 3973407, at *10, Babb remains good
law in all respects, other than its holding that clearly established federal law
required Byford’s application to pending cases in which the conviction became
final before Bunkley was decided.
4