FILED
NOT FOR PUBLICATION
OCT 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER ELVIK, No. 13-17530
Petitioner-Appellee, D.C. No.
3:04-cv-00471-GMN-WGC
v.
RENEE BAKER, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA, ORDER
Respondents-Appellants.
PETER ELVIK, No. 14-15126
Petitioner-Appellant, D.C. No.
3:04-cv-00471-GMN-WGC
v.
RENEE BAKER, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents-Appellees.
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and KRONSTADT,*
District Judge.
The prior memorandum disposition and dissent filed on June 28, 2016, are
hereby amended concurrent with the filing of the amended disposition today. With
these amendments, Judge N.R. Smith has voted to deny the petition for rehearing
en banc, and Judges Schroeder and Kronstadt have so recommended.
The full court was advised of the petition 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 petition for rehearing en banc is DENIED. No further petitions for
rehearing or rehearing en banc may be filed in response to the amended
disposition.
*
The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
2
FILED
NOT FOR PUBLICATION
OCT 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER ELVIK, No. 13-17530
Petitioner - Appellee, D.C. No. 3:04-cv-00471-GMN-
WGC
v.
RENEE BAKER and ATTORNEY AMENDED MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellants.
PETER ELVIK, No. 14-15126
Petitioner - Appellant, D.C. No. 3:04-cv-00471-GMN-
WGC
v.
RENEE BAKER and ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
On Remand From the United States Supreme Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and KRONSTADT,**
District Judge.
The Nevada Attorney General appeals the district court’s order conditionally
granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus petition, arguing that (1) the
district court was obligated to develop alternative theories to support the Nevada
Supreme Court’s decision, and (2) the district court erred by concluding that the
trial court’s failure to provide a jury instruction was not a harmless error. We
affirm.
1. The district court was not obligated to develop alternative theories to
support the Nevada Supreme Court’s decision. The Nevada Supreme Court did not
provide a summary decision without reasoning, as in Harrington v. Richter, 562
U.S. 86, 96 (2011), or a decision that failed to address one of petitioner’s claims, as
in Johnson v. Williams, 133 S. Ct. 1088, 1096–97 (2013). Instead, the Nevada
Supreme Court provided a reasoned decision that addressed all of the key issues in
Elvik’s petition. Therefore, the district court did not err by analyzing the rationale
of the Nevada Supreme Court as presented in its reasoned opinion.
2. In Davis v. Ayala, the Supreme Court clarified that the Nevada Supreme
Court’s harmless error determination must be analyzed under the framework set
**
The Honorable John A. Kronstadt, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
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out in 28 U.S.C. § 2254(d). 135 S. Ct. 2187, 2198 (2015). Here, the Nevada
Supreme Court provided a reasoned decision on whether the error was harmless.
But the court analyzed the error under a more deferential state law standard rather
than Chapman v. California, 386 U.S. 18, 24 (1967), which is the required
standard for determining whether federal constitutional errors are harmless. This
was “contrary to . . . clearly established federal law,” and when a state court applies
the incorrect legal standard, we afford it no deference. See Shirley v. Yates, 807
F.3d 1090, 1101 (9th Cir. 2015). Instead, we proceed to analyze whether the error
was harmless de novo.
3. The trial court’s failure to provide the jury with an instruction regarding
Nevada Revised Statute section 194.010 was not a harmless error. On collateral
review, an error is not harmless if it “had [a] substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under
this standard, petitioners are not entitled to habeas relief “unless they can establish
that [the trial court’s error] resulted in ‘actual prejudice.’” Id. The Supreme Court
has explained:
[I]f one cannot say, with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error, it is impossible to conclude
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that substantial rights were not affected. The inquiry cannot be merely
whether there was enough [evidence] to support the result, apart from .
. . the error. It is rather . . . whether the error itself had substantial
influence. If so, or if one is left in grave doubt, the conviction cannot
stand.
Kotteakos, 328 U.S. at 765. Additionally, “[w]here the record is so evenly
balanced that a judge ‘feels himself in virtual equipoise as to the harmlessness of
the error’ and has ‘“grave doubt” about whether an error affected a jury
[substantially and injuriously], the judge must treat the error as if it did so.’”
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (second alteration in original)
(quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437–38 (1995)).
Nevada Revised Statute section 194.010 creates a presumption that children
(between the ages of eight years and fourteen years) lack the capacity to
distinguish right from wrong. See Winnerford Frank H. v. State, 915 P.2d 291,
293 (Nev. 1996). Accordingly, the prosecution bears the burden of rebutting this
presumption by establishing, through clear proof, “that at the time of committing
the act . . . [the child] knew its wrongfulness.” Nev. Rev. Stat. § 194.010. Elvik’s
proposed instruction (based on section 194.010) stated:
All persons are liable to punishment except those belonging to the
following class as it applies to this case:
Children between the ages of eight years and fourteen years, in the
absence of clear proof that at the time of committing the act charged
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against them they knew its wrongfulness. Peter Elvik was fourteen years
old on August 31, 1995.
The trial court rejected the instruction. Accordingly, the trial court did not instruct
the jury as to the applicability of section 194.010.
We have “grave doubts” as to whether the trial court’s error was harmless.
See Garcia v. Long, 808 F.3d 771, 781 (9th Cir. 2015) (“[The Brecht] standard is
satisfied if the record raises ‘grave doubts’ about whether the error influenced the
jury’s decision.”). Juries are presumed to follow the instructions given to them by
the trial court. Vitello v. United States, 425 F.2d 416, 422 (9th Cir. 1970). Thus,
had the trial court given the instruction, the jury would have been required to
presume that Elvik was not liable for his actions, unless the government proved by
clear evidence that Elvik knew (at the time he committed the crimes) that his
conduct was wrong. The trial court’s failure to give the instruction relieved the
government of its burden of proving an element of the crime.
The government contends that, even without the instruction, the record
contains sufficient evidence indicating that Elvik understood the wrongfulness of
his actions, and that he cannot meet the standard that there was “much more than a
‘reasonable possibility’ that the result of the [trial] would have been different.”
Davis, 135 S. Ct. at 2203 (citing Brecht, 507 U.S. at 637). The evidence in the
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record, however, is mixed. Some evidence suggests that Elvik may have known
that what he did was wrong. He fled from a motel when informed the police were
coming, he hid the victim’s handgun and money clip, he gave the police a false
name, and he testified at trial that he “didn’t want some little kid to find the
[handgun], or shoot, you know, or anything like that.” Other evidence, however,
suggests that Elvik was immature and childish, and did not understand the
wrongfulness of his actions. He remarked that he might not live long because of
“some big earthquake,” he referred to his mother with a crude expletive, he
believed he would be sent to juvenile detention, and he testified at trial that he was
scared and did not think anyone would believe him. Still more evidence could be
viewed by the jury to support either contention, such as Elvik’s made up story of
being under the influence of LSD. On the basis of the full record and given the
state’s burden of proof we are persuaded that had the jury been properly instructed,
there was a reasonable probability the jury would have acquitted him, not merely a
reasonable possibility that they could have. We agree with the district court and
conclude that the trial court’s failure to provide a jury instruction regarding section
194.010 was not harmless.
Because we affirm the district court’s conditional grant of Elvik’s habeas
petition, we do not reach the issues raised in Elvik’s cross appeal.
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AFFIRMED.
-7-
FILED
OCT 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KRONSTADT, District Judge, concurring in part and dissenting in part:
I concur with the conclusion of the majority that “[t]he district court was not
obligated to develop alternative theories to support the Nevada Supreme Court’s
decision.” I also agree with its statements that “Nevada Revised Statute section
194.010 creates a presumption that children (between the ages of eight years and
fourteen years) lack the capacity to distinguish right from wrong” and that as a
result, “the prosecution bears the burden of rebutting this presumption by
establishing, through clear proof, ‘that at the time of committing the act . . . [the
child] knew its wrongfulness.’” (quoting Nev. Rev. Stat. § 194.010). Finally, I
agree with the majority’s description of the Brecht standard, which on collateral
review governs the determination of whether an error is harmless, as clarified in
Davis v. Ayala, 135 S. Ct. 2187 (2015). I disagree, however, with the application of
the Brecht standard by the majority to the record evidence. Therefore, I
respectfully dissent from its conclusion that “[t]he trial court’s failure to provide
the jury with an instruction regarding Nevada Revised Statute section 194.010 was
not a harmless error.”
As the majority observes, “[t]he government contends that, even without the
instruction, the record contains sufficient evidence indicating that Elvik understood
the wrongfulness of his actions.” The majority then states that the evidence in the
record is “mixed” and concludes that “[o]n the basis of the full record and given the
state’s burden of proof we are persuaded that had the jury been properly instructed,
there was a reasonable probability the jury would have acquitted him, not merely a
reasonable possibility that they could have.” It is with these conclusions that I
respectfully disagree.
In my view, the record evidence is not “so evenly balanced” that a judge
could feel “in virtual equipoise as to the harmlessness of the error” or have “grave
doubt about whether an error affected a jury [substantially and injuriously] . . . . ”
Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (alteration in original)(internal
quotation marks omitted) (citing O'Neal v. McAninch, 513 U.S. 432, 435, 437–38
(1995)). Instead, a consideration of the record evidence as a whole supports the
conclusion that the error did not have a substantial and injurious effect or influence
on the verdict. For these reasons, “on the record in this case, [defendant] cannot
establish actual prejudice . . . .” Davis, 135 S. Ct. at 2203.
The following record evidence, some of which is cited by the majority, in my
view shows that Elvik had a level of sophistication and understanding that would
cause any reasonable jury to conclude that, when he shot and killed the victim,
Elvik knew the difference between right and wrong:
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1. Elvik previously had been arrested for stealing a motor vehicle.
2. After the shooting, Elvik took the victim's briefcase and handgun. The
briefcase contained the victim's money clip and the keys to his vehicle. Elvik then
drove the victim's vehicle nearly five hundred miles from Carson City, Nevada to
Costa Mesa, California.
3. After arriving in California, Elvik contacted his 13-year-old girlfriend,
picked her up in the victim's vehicle, and checked into a motel with her for the
night. He took the victim's handgun and money clip into the motel room.
4. The day after the shooting, at approximately 3:00 a.m., California law
enforcement personnel, who had become aware of the events in Nevada, identified
the vehicle outside the motel as the one that belonged to the victim of the shooting.
They contacted the person working at the front desk of the motel from whom they
learned that Elvik was the guest associated with that vehicle. Shortly thereafter, the
person at the front desk called the room in which Elvik and his girlfriend were
staying and told him to flee. Elvik and his girlfriend left the room. Elvik jumped
from the balcony. Although his girlfriend was promptly apprehended, Elvik evaded
law enforcement personnel for the next 14 hours. During that time, he hid the
victim's handgun and money clip.
-3-
5. Elvik testified at trial that he later went back and retrieved the handgun
because he “didn't want nobody to find it. I didn't want some little kid to find it, or
shoot, you know, or anything like that.”
6. Upon being detained, but prior to his arrest, Elvik gave a false name to the
police. He later told them his actual name.
7. After being held, and given a Miranda warning, Elvik initially denied any
recollection of the shooting. He stated that he had taken LSD and that this likely
clouded his memory. Later in that interrogation, Elvik admitted to shooting the
victim. At trial, Elvik stipulated that a blood test showed that he was not under the
influence of LSD, and he testified that he had lied when he told the police
otherwise.
8. During the same interrogation, Elvik asked whether his actions in Nevada
would result in his confinement in a juvenile hall in Nevada or California. This
showed sophistication about the link between where a crime is committed and the
place of any resulting confinement.
9. During the same interrogation, Elvik stated that he had considered leaving
the victim's handgun with Elvik's friend Stephen. He stated, “I didn't want to give it
to [Stephen] because I guess he's like on probation for doing drugs or something. So
I didn't want him to get in trouble for it but, you know?” He stated that he then
-4-
decided to give the gun to Stephen with the expectation that Stephen would “take it
over to [Elvik's] mom's office or whatever or the police station or whatever he's
going to do with it.”
10. At the time of the shooting, Elvik was 14 years and 11 months old. Thus,
within a month he no longer would have qualified for the instruction under
Nev.Rev.Stat. § 194.010(2).
In my view, a consideration of the other evidence in the record, some of
which is also mentioned by the majority, does not show that the totality of the
evidence was “equally balanced” such that a judge could be in equipoise as to the
issue of harmless error. Elvik relies on the following evidence to support his
contrary position:
1. During his interrogation, he referred to his mother, who had disowned him
and denied his request to return to her in California, by using a crude expletive;
2. He stated that he might not have a long life ahead of him because there
might be “some big earthquake” and he might “fall in the crack and then [ ]die”;
3. He answered some questions with “ah huh” instead of “yes” during his
interrogation;
-5-
4. He did not surrender to the police because he was “scared” and did not
“think anyone would believe” him, something consistent with the recognition that
he knew that his conduct was wrongful;
5. During the interrogation, after being told that “everybody's going to know
exactly what happened” and that this was Elvik's “chance to fill in, maybe, a couple
of little minor details,” Elvik asked “why does it matter, whatever I tell you?”
However, in context, these words demonstrate that Elvik was asking why he needed
to state what he had done given the evidence the police already had collected1; and
6. At the conclusion of the initial interrogation, Elvik asked if he would be
sent to juvenile hall in Nevada or California. As stated above, this reflects
sophistication. Moreover, even if this implied that Elvik misunderstood the
1
After being asked to “fill in the little details” because the police “d[id]n't
know exactly, you know, step by step what happened,” Elvik asked, “Well, what
does it matter anyway[?]” After being told that what happened was not “going to
be a real big mystery,” Elvik asked, “Yeah, I know, so why . . . why does it matter,
whatever I tell you?” Elvik later stated, “Well . . . well, you obviously already
know what happened, so what does it matter what I say?” Subsequently, after
being told that his girlfriend had stated that Elvik told her that he shot the victim,
Elvik responded, “It doesn't matter anyways.” Later, after being asked whether the
victim fell on his back or on his stomach after being shot, Elvik stated, “So, even if
I do know, what is it . . . who cares?” After being told that things were “f* * * * *
right now” and that they were “going to stay that way for awhile,” Elvik asked, “So
what's the difference if they're going to stay like that?”
-6-
seriousness of the punishment that might be imposed for killing the victim, it did
not imply that he did not know that his conduct was wrongful.
To make the determination of “whether a trial error of federal law had
substantial and injurious effect or influence in determining the jury's verdict” Davis,
135 S. Ct. at 2198 (internal quotation marks omitted) (quoting O'Neal, 513 U.S. at
436), it is necessary to consider the effect of the error in light of all the evidence
presented to the jury. The question is not whether the jury was “right in their
judgment” but is, instead, “what effect the error had or reasonably may be taken to
have had upon the jury's decision.” Kotteakos v. United States, 328 U.S. 750, 764
(1946). This analysis “must take account of what the error meant to [the jury], not
singled out and standing alone, but in relation to all else that happened.” Id. A
conviction may not be overturned on “mere speculation that the defendant was
prejudiced by trial error”; actual prejudice must be suffered. Calderon v. Coleman,
525 U.S. 141, 146 (1998); see also Fry v. Pliler, 551 U.S. 112, 119 (2007); Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). Thus, “[t]here must be more than a
‘reasonable possibility’ that the error was harmful.” Davis, 135 S. Ct. at 2198
(quoting Brecht, 507 U.S. at 637). In assessing actual prejudice to the defendant, all
relevant record evidence should be considered.
-7-
For these reasons, which are based on a review of the relevant record, I am
not persuaded that Elvik suffered actual prejudice because the instruction that he
requested was not read to the jury. Given the evidence at trial, I respectfully
disagree that a reasonable jury could have concluded that Elvik did not understand
the wrongfulness of his actions. That killing another person is wrongful is among
the oldest and best established rules of civilization. As such, “[t]here is no basis for
finding that [defendant] suffered actual prejudice . . . .” Davis, 135 S. Ct. at 2208.
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