FILED
NOT FOR PUBLICATION
MAY 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK DAVID GETZ, No. 14-15816
Petitioner-Appellee, D.C. No.
3:06-cv-00320-MMD-VPC
v.
JACK PALMER and ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents-Appellants.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted January 10, 2017
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,** District
Judge.
The State of Nevada appeals from the district court’s grant of Jack Getz’s
petition for a writ of habeas corpus, seeking reversal in light of our court’s decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
in Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014). We review de novo,
McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008), and we reverse and
remand.
On February 14, 2000, a jury found Getz guilty of first degree murder after
receiving the state Kazalyn instruction regarding premeditation. See Kazalyn v.
State, 108 Nev. 67, 75-76 (1992) (premeditation instruction in first degree murder
cases sufficiently distinguishes between “premeditation and malice aforethought”).
Two weeks after his jury conviction, the Nevada Supreme Court decided in Byford
v. State, 116 Nev. 215, 235-36 (2000), that the Kazalyn instruction should no
longer be given because premeditation and deliberation should be considered
separate elements required to convict for first degree murder. Subsequently, the
United States Supreme Court decided in Bunkley v. Florida, 538 U.S. 835, 841
(2003), that where a potentially exonerating change in state law occurs before a
defendant's conviction is final, due process requires the state to apply the change to
the defendant's conviction.
Relying on Bunkley, we decided in Babb v. Lozowsky, 719 F.3d 1019, 1030-
33 (9th Cir. 2013), that it was a violation of clearly established United States
Supreme Court law not to apply the new Byford instruction in cases where a
defendant’s conviction was not final when Byford issued. Getz’s conviction was
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affirmed by the Nevada Supreme Court on March 13, 2002, and became final on
June 11, 2002. The district court therefore determined that Getz was entitled to
habeas relief under Babb.
One month later, the United States Supreme Court issued its opinion in
White v. Woodall, 134 S.Ct. 1697 (2014). In Woodall, the Supreme Court held that
relief under 28 U.S.C. § 2254(d) is prohibited where there can be “fairminded
disagreement” on the question of whether changes in state law apply to cases
pending on direct review when the law is changed. Id. at 1702. Our court then
determined in Moore v. Helling that Woodall effectively overruled Babb. Moore,
763 F.3d at 1021-22. Because Moore’s conviction was final before Bunkley was
issued, we determined that the Nevada Supreme Court did not unreasonably apply
clearly established Supreme Court law when it declined to apply the Byford
instruction in his case. Id. Therefore, we likewise hold that the Nevada Supreme
Court did not unreasonably apply clearly established Supreme Court law when it
declined to apply Byford in Getz’s case, who is in the same procedural posture as
defendant Moore: his conviction was final on June 11, 2002, prior to Bunkley.
Getz has thus failed to show that the trial court’s use of the Kazalyn
instruction violated his due process rights. The use of the Kazalyn instruction at
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Getz’s trial did not do so, because at that time in Nevada, first-degree murder
included only one mens rea instruction – the Kazalyn instruction.
REVERSED and REMANDED for consideration in accord with Moore v.
Helling, 763 F.3d 1011 (9th Cir. 2014).
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