                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LEVENRAL D. POLK,                      
               Petitioner-Appellant,         No. 06-15735
                 v.
                                              D.C. No.
                                           CV-03-00125-PMP
BRIAN SANDOVAL; STATE OF
NEVADA, et al.,                               OPINION
           Respondents-Appellees.
                                       
        Appeal from the United States District Court
                 for the District of Nevada
          Philip M. Pro, District Judge, Presiding

                  Argued and Submitted
          February 14, 2007—Berkeley, California

                 Filed September 11, 2007

     Before: Betty B. Fletcher, Richard R. Clifton, and
              Sandra S. Ikuta, Circuit Judges.

                Opinion by Judge B. Fletcher




                            12225
                      POLK v. SANDOVAL                   12227


                         COUNSEL

Lori C. Teicher, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.

George J. Chanos, Attorney General, Robert E. Weiland
(argued), Senior Deputy Attorney General, Criminal Justice
Division, Reno, Nevada, for the respondents-appellees.


                         OPINION

B. FLETCHER, Circuit Judge:

   Levenral Demarlo Polk, a Nevada state prisoner, appeals
the denial of his petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging his conviction for first-degree mur-
der with a deadly weapon and discharge of a firearm from a
motor vehicle. We have jurisdiction pursuant to 28 U.S.C.
§ 2253. We hold that Polk’s federal constitutional right to due
12228                  POLK v. SANDOVAL
process was violated because the instructions given at his trial
permitted the jury to convict him of first-degree murder with-
out a finding of the essential element of deliberation. The
error was not harmless. We reverse and remand to the district
court to grant the writ unless the State elects to retry Polk
within a reasonable time.

 I.   FACTUAL AND PROCEDURAL BACKGROUND

   On the night of December 14, 1998, Levenral Demarlo
Polk drove around Las Vegas in a car borrowed from his girl-
friend, Leslie Harris. Polk’s longtime friend, Walter (“Wattie”
or “Y.T.”) Hodges, was a passenger in the car. Near the inter-
section of Owens Avenue and Nellis Boulevard, witnesses
heard several gunshots and saw Hodges fall out of a car that
looked like Harris’s and into the street in front of a bus stop
as the car drove away.

   On March 16, 1999, the State of Nevada charged Polk in
the Clark County District Court with the first-degree murder
of Hodges with use of a deadly weapon and discharging a
firearm out of a motor vehicle. Nevada Revised Statutes
§ 200.010 defined murder as “the unlawful killing of a human
being, with malice aforethought, either express or implied.”
Nev. Rev. Stat. § 200.010 (1999). Murder of the first degree
is murder “[p]erpetrated by means of poison, lying in wait or
torture, or by any other kind of willful, deliberate and pre-
meditated killing.” Nev. Rev. Stat. § 200.030(1)(a) (1999)
(emphasis added). Murder of the second degree is “all other
kinds of murder.” Nev. Rev. Stat. § 200.030(2) (1999).

   A five-day jury trial was held. Most of the evidence went
to the issue of identity. The State presented the following evi-
dence regarding premeditation and deliberation: Donnette
Peach, Polk’s ex-girlfriend, testified that in September or
October 1998, she witnessed an argument between Polk and
Hodges over money related to their drug dealing. She testified
that Polk said to Hodges, “I won’t fight you. I’ll shoot you.
                       POLK v. SANDOVAL                    12229
I like to shoot people.” She also testified that she thought this
fight was not serious although it was different from previous
fights between Polk and Hodges.

   Thomas Tocco, a manager of a Checker Auto Parts store
located at the intersection of Owens Avenue and Nellis Bou-
levard, testified that he was at the store on the night of
December 14 when he heard male voices arguing shortly
before he heard gunshots. He did not see who was arguing.

   Earlier in the evening of December 14, Polk and Hodges
stopped by Roshandia Leatherwood’s apartment. While
Hodges waited in the car, Polk went inside to borrow a bullet-
proof vest from Renardy (“Buddha”) Neau, Roshandia’s boy-
friend. Neau testified that Polk wanted to borrow his vest for
protection because Polk had gotten into a “scuffle” with
“some dudes” and that he put on the vest before he left the
apartment. Neau also testified that he had wanted to sell the
vest, but Polk did not offer to sell the vest for him. Other wit-
nesses testified that they saw Polk wearing the vest. Polk
brought the vest back later that night.

   According to Polk, he borrowed the vest in order to sell it
for Neau. Polk testified that because the vest was stolen, he
put it under his shirt as he walked out of the apartment com-
plex so that it would not be seen on the security cameras. He
did not tell detectives about the vest in his initial statement
because it was stolen. Polk testified that after he left Leather-
wood’s apartment, he dropped off Hodges at 28th Street,
where Hodges planned to sell drugs, and that he drove to
Oasis Ridge to sell the vest to someone named Mike. Polk tes-
tified that Mike did not have enough money to buy the vest,
so he gave it back to Neau later that night.

  The jury was instructed on the definitions of first- and
second-degree murder. See Instruction No. 13 (“Murder of the
First Degree is murder which is perpetrated by any kind of
willful, deliberate and premeditated killing.”); Instruction No.
12230                     POLK v. SANDOVAL
15 (“Murder of the second degree is murder with malice
aforethought, but without the admixture of premeditation. [¶]
All murder which is not murder of the first degree is murder
of the second degree.”). Instruction No. 14 defined premedita-
tion as follows:

         Premeditation is a design, a determination to kill,
      distinctly formed in the mind at any moment before
      or at the time of the killing.

         Premeditation need not be for a day, an hour or
      even a minute. It may be as instantaneous as succes-
      sive thoughts of the mind. For if the jury believes
      from the evidence that the act constituting the killing
      has been preceded by and has been the result of pre-
      meditation, no matter how rapidly the premeditation
      is followed by the act constituting the killing, it is
      willful, deliberate and premeditated murder.

Instruction No. 14 (emphasis added). Defense counsel
objected to this instruction, known as the Kazalyn instruction,1
on the ground that it defined willful, deliberate, and premedi-
tated as “the same thing,” violating Polk’s Sixth Amendment
right to a fair trial and his Fifth and Fourteenth Amendment
right to due process. Defense counsel requested the addition
of a definition for “deliberate” at the end of Instruction No.
14: “Deliberate means formed or arrived at or determined
upon as a result of careful thought and weighing of consider-
ations for and against the proposed cause of action.” The trial
court overruled the objection and declined to adopt the pro-
posed instruction.

  In closing, the prosecutor emphasized that “[p]remeditation
can be formed at the time of the killing as instantaneous as
successive thoughts of the mind,” and argued that both pre-
  1
   This instruction first appeared in Kazalyn v. State, 825 P.2d 578 (Nev.
1992).
                          POLK v. SANDOVAL                       12231
meditation and deliberation had been proven because “this
man borrows and puts on a bulletproof vest, takes out his
handgun, and shoots it into the body of this person not once,
but twice, and missing a couple other times . . . . So this is
first degree murder, ladies and gentlemen. This is not second
degree murder.” In response, defense counsel pointed to evi-
dence showing that Polk did not put on the vest and argued
that the fact that Polk picked up the vest did not show that he
intended to kill Hodges. The prosecutor argued in rebuttal that
first-degree murder required only “successive thoughts of the
mind”:

         Premeditation, you can talk about the vest all you
      want. It doesn’t matter if he had the vest or not.
      That’s just one fine nuance that we have, because it
      only takes successive thoughts of the mind. All it
      takes is pointing the weapon and pulling the trigger.
      That’s successive thoughts of the mind. Or the sec-
      ond shot or the third shot or the fourth shot. . . . [I]t’s
      the successive shots that helps you out in that regard.

(Emphasis added).

   The jury found Polk guilty of first-degree murder with a
deadly weapon and discharging a firearm out of a motor vehi-
cle. The trial court sentenced Polk to two consecutive life
terms in prison without the possibility of parole and a consec-
utive term of 40 to 180 months. Polk appealed to the Nevada
Supreme Court. Polk raised several arguments on appeal,
including the argument that the Kazalyn instruction deprived
him of a fair trial. He argued that the rule recently announced
by the Nevada Supreme Court in Byford v. State, 994 P.2d
700 (Nev. 2000), should be applied to him.2
  2
   Byford was decided after Polk’s judgment of conviction but before his
opening brief on appeal was filed.
12232                  POLK v. SANDOVAL
   In Byford, the Nevada Supreme Court identified a major
shortcoming in the Kazalyn instruction: it did not give effect
to all three elements of first-degree murder under Nevada
Revised Statutes § 200.030(1)(a)—willfulness, premeditation,
and deliberation. Byford, 994 P.2d at 712-14. As a result, the
court directed that the Kazalyn instruction should not be given
in future cases. Id. at 714-15. The court held:

       By defining only premeditation and failing to pro-
    vide deliberation with any independent definition,
    the Kazalyn instruction blurs the distinction between
    first- and second-degree murder.

      . . . “It is clear from the statute that all three ele-
    ments, willfulness, deliberation, and premeditation,
    must be proven beyond a reasonable doubt before an
    accused can be convicted of first degree murder.”

       In sum, the Kazalyn instruction and [related
    caselaw] do not do full justice to the phrase “willful,
    deliberate, and premeditated.” Deliberation remains
    a critical element of the mens rea necessary for first-
    degree murder, connoting a dispassionate weighing
    process and consideration of consequences before
    acting. “In order to establish first-degree murder, the
    premeditated killing must also have been done delib-
    erately, that is, with coolness and reflection.”

       Because deliberation is a distinct element of mens
    rea for first-degree murder, we direct the district
    courts to cease instructing juries that a killing result-
    ing from premeditation is “willful, deliberate, and
    premeditated murder.” Further, if a jury is instructed
    separately on the meaning of premeditation, it should
    also be instructed on the meaning of deliberation.

Byford, 994 P.2d at 713-14 (internal citations omitted). The
court provided a new instruction for district courts to use in
                             POLK v. SANDOVAL                          12233
first-degree murder cases. Id. at 714. This instruction clarifies
that “[a]ll three elements—willfulness, deliberation, and
premeditation—must be proven beyond a reasonable doubt
before an accused can be convicted of first-degree murder,”
id. at 714, and it includes separate definitions of willfulness,
deliberation, and premeditation, id. at 714-15.3

  While Polk’s appeal was pending, the Nevada Supreme
Court clarified that Byford “does not hold that giving the
  3
   “Deliberation” is defined as
      [T]he 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.
      A deliberate determination may be arrived at in a short period of
      time. . . . A mere unconsidered and rash impulse is not deliberate,
      even though it includes the intent to kill.
Byford, 994 P.2d at 714.
   “Premeditation” is defined in a similar way as in the Kazalyn instruction
—“a design, a determination to kill, distinctly formed in the mind by the
time of the killing” that “may be as instantaneous as successive thoughts
of the mind.” However, the new instruction adds the following,
         The law does not undertake to measure in units of time the
      length of the period during which the thought must be pondered
      before it can ripen into an intent to kill which is truly deliberate
      and premeditated.
         The time will vary with different individuals and under varying
      circumstances.
        The true test is not the duration of time, but rather the extent
      of the reflection. A cold, calculated judgment and decision may
      be arrived at in a short period of time, but a mere unconsidered
      and rash impulse, even though it includes an intent to kill, is not
      deliberation and premeditation as will fix an unlawful killing as
      murder of the first degree.
Id. at 714-15.
   “Willfulness” is defined as “the intent to kill. There need be no appre-
ciable space of time between formation of the intent to kill and the act of
killing.” Id. at 714.
12234                  POLK v. SANDOVAL
Kazalyn instruction was error or violated any constitutional
rights.” Garner v. State, 6 P.3d 1013, 1025 (Nev. 2000), over-
ruled on other grounds by Sharma v. State, 56 P.3d 868 (Nev.
2002). Like Polk, Garner received the Kazalyn instruction at
trial and argued that Byford required reversal of his convic-
tion, which had not yet become final. Id. at 1024-25. How-
ever, unlike Polk, Garner did not object at trial to the Kazalyn
instruction “and therefore failed to preserve this issue for
appeal absent a showing of plain or constitutional error. Use
of the Kazalyn instruction in trials which predate Byford does
not constitute plain or constitutional error.” Id. at 1025. More-
over, the court held that Griffith v. Kentucky, 479 U.S. 314,
322 (1987), did not require retroactive application because
“Byford does not invoke any constitutional mandate in direct-
ing that its new instructions be given in future cases, so there
is no constitutional requirement that this direction have any
retroactive effect.” Garner, 6 P.3d at 1025.

   The Nevada Supreme Court rejected each of Polk’s argu-
ments on appeal and affirmed his conviction. The following
is the court’s analysis of Polk’s due process claim:

    [A]ppellant contends that the district court erred in
    giving an instruction this court approved in Kazalyn
    v. State regarding premeditation and deliberation
    because the instruction is clearly erroneous under
    this court’s subsequent holding in Byford v. State.
    Appellant also argues that the district court errone-
    ously rejected a proposed premeditation instruction
    which separately defined premeditation and delibera-
    tion. We recently clarified Byford, as follows: “Our
    opinion in Byford concludes that the Kazalyn
    instruction does not fully define ‘willful, deliberate,
    and premeditated,’ and it provides other instructions
    for future use—but it does not hold that giving the
    Kazalyn instruction constituted error, nor does it
    articulate any constitutional grounds for its deci-
    sion.” [citing Garner, 6 P.3d at 1024] Further “[u]se
                       POLK v. SANDOVAL                    12235
    of the Kazalyn instruction in trials which predate
    Byford does not constitute plain or constitutional
    error. Nor do the new instructions required by
    Byford have any retroactive effect on convictions
    which are not yet final: the instructions are a new
    requirement with prospective force only.” [citing
    Garner, 6 P.3d at 1025.] Because appellant’s trial
    predated Byford, we conclude that the district court’s
    use of the Kazalyn instruction, rather than appel-
    lant’s proposed instruction, was not error. Accord-
    ingly, appellant’s argument lacks merit.

   Polk filed a pro se petition for writ of habeas corpus in the
Clark County District Court, raising several issues not raised
in his direct appeal. The district court denied his petition. Polk
appealed to the Nevada Supreme Court. The Nevada Supreme
Court denied his petition.

   On October 29, 2003, Polk filed a petition for writ of
habeas corpus in the United States District Court for the Dis-
trict of Nevada. He raised nine grounds for relief, each of
which had been presented to the Nevada Supreme Court
either on direct or collateral review: (1) his equal protection
and fair trial rights were violated by the state’s discriminatory
peremptory strike of an African-American prospective juror;
(2) his due process and fair trial rights were violated by erro-
neous admission of evidence that Polk had possessed a hand-
gun and made prior threats to Hodges; (3) his due process and
fair trial rights were violated by the prosecutor’s forcing him
to testify on cross-examination that other witnesses were
lying; (4) his due process right was violated by the Kazalyn
instruction, which improperly minimized the state’s burden of
proof; (5) his due process right was violated by the trial
court’s rejection of his proposed reasonable doubt instruction;
(6) his due process right was violated by the prosecution’s
knowing use of false testimony to obtain his conviction; (7)
his due process and fair trial rights were violated by the trial
court’s failure to grant his motion to voluntarily dismiss his
12236                     POLK v. SANDOVAL
habeas petition so that he could add additional claims; (8) his
right to effective assistance of trial counsel was violated; and
(9) his right to effective assistance of appellate counsel was
violated.

  The district court denied his petition. In rejecting Polk’s
due process claim, the court held that considering the evi-
dence presented at trial and the instructions as a whole, the
use of the Kazalyn instruction did not render Polk’s trial fun-
damentally unfair.

   On appeal, Polk raises each argument presented in his
habeas petition except for the issues of voluntary dismissal
and the rejection of his proposed reasonable doubt instruction.
We hold that Polk’s federal constitutional right to due process
was violated by the use of the Kazalyn instruction because it
relieved the State of its burden of proving every element of
first-degree murder beyond a reasonable doubt.4 The Nevada
Supreme Court’s decision to the contrary was “contrary to
clearly established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1). Since this error was not
harmless, we reverse and remand to the district court to grant
the writ unless the State elects to retry Polk within a reason-
able time.

                II.   STANDARD OF REVIEW

   A district court’s denial of habeas relief is reviewed de
novo. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.
2004). The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) applies because Polk filed his petition after
AEDPA’s effective date. Stevenson v. Lewis, 384 F.3d 1069,
1071 (9th Cir. 2004). Under AEDPA, a habeas petitioner can-
not obtain relief based on a claim adjudicated on the merits
in state court unless the adjudication of the claim
  4
   Polk’s other grounds for relief have no merit. We do not address them
here.
                       POLK v. SANDOVAL                    12237
    (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).

   To obtain relief under 28 U.S.C. § 2254(d)(1), there must
be clearly established Supreme Court law. Williams v. Taylor,
529 U.S. 362, 412 (2000) (“§ 2254(d)(1) restricts the source
of clearly established law to this Court’s jurisprudence.”);
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (“ ‘[C]learly
established Federal law’ under § 2254(d)(1) is the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.”). The state court
decision must be either “contrary to” or an “unreasonable
application of” that precedent. Id. at 405-09. A state court
decision is “contrary to” clearly established law “if the state
court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Id. at 413.

   In reviewing a state court decision under § 2254(d)(1), we
look to the last reasoned decision of the state court as the
basis of the state court’s judgment. Benson v. Terhune, 304
F.3d 874, 880 n.5 (9th Cir. 2002). Here, we review the
Nevada Supreme Court’s decision on direct appeal, since that
is the last reasoned state court decision on Polk’s claim that
the Kazalyn instruction violated his right to due process.
12238                   POLK v. SANDOVAL
                      III.   DISCUSSION

                       A.    Due Process

   [1] It is clearly established federal law, as determined by
the Supreme Court, that a defendant is deprived of due pro-
cess if a jury instruction “ha[s] the effect of relieving the State
of the burden of proof enunciated in Winship on the critical
question of petitioner’s state of mind.” Sandstrom v. Mon-
tana, 442 U.S. 510, 521 (1979); Francis v. Franklin, 471 U.S.
307, 326 (1985) (reaffirming “the rule of Sandstrom and the
wellspring due process principle from which it was drawn.”);
see also In re Winship, 397 U.S. 358, 364 (1970) (“the Due
Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.”).

   In reviewing a habeas petition, “[t]he only question . . . is
whether the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.”
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation
marks and citation omitted). “[T]he instruction . . . must be
considered in the context of the instructions as a whole and
the trial record.” Id. “If the charge as a whole is ambiguous,
the question is whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way that
violates the Constitution.” Middleton v. McNeil, 541 U.S. 433,
437 (2004) (per curiam) (quoting Estelle, 502 U.S. at 72)
(internal quotation marks omitted). A “reasonable likelihood”
is lower than the “more likely than not” standard but higher
than a mere “possibility.” See Boyde v. California, 494 U.S.
370, 380 (1990); see also Sarausad v. Porter, 479 F.3d 671,
692 (9th Cir. 2007).

   [2] Under Nevada Revised Statutes § 200.030(1)(a), first-
degree murder is a willful, deliberate, and premeditated kill-
ing. In Byford, the Nevada Supreme Court reaffirmed that
“[i]t is clear from the statute that all three elements, willful-
                       POLK v. SANDOVAL                    12239
ness, deliberation, and premeditation, must be proven beyond
a reasonable doubt before an accused can be convicted of first
degree murder.” 994 P.2d at 713-14 (internal quotation marks
and citation omitted). It is not sufficient for the killing simply
to be premeditated. The court held:

    Deliberation remains a critical element of the mens
    rea necessary for first-degree murder, connoting a
    dispassionate weighing process and consideration of
    consequences before acting. “In order to establish
    first-degree murder, the premeditated killing must
    also have been done deliberately, that is, with cool-
    ness and reflection.”

Id. at 714 (citation omitted).

   [3] Yet, Polk’s jury was instructed to find “willful, deliber-
ate, and premeditated murder” if it found premeditation: “For
if the jury believes from the evidence that the act constituting
the killing has been preceded by and has been the result of
premeditation, no matter how rapidly the premeditation is fol-
lowed by the act constituting the killing, it is willful, deliber-
ate and premeditated murder.” Instruction No. 14; see Byford,
994 P.2d at 714 (“direct[ing] the district courts to cease
instructing juries that a killing resulting from premeditation is
‘willful, deliberate, and premeditated murder.’ ”).

   [4] This instruction is clearly defective because it relieved
the state of the burden of proof on whether the killing was
deliberate as well as premeditated. See id. at 713 (“By defin-
ing only premeditation and failing to provide deliberation
with any independent definition, the Kazalyn instruction blurs
the distinction between first- and second-degree murder.”).
Considering the instructions as a whole, we conclude that
there is a reasonable likelihood that the jury applied the
instruction in a way that violated Polk’s right to due process.
See Estelle, 502 U.S. at 72. The jury was instructed that
“Murder of the First Degree is murder which is perpetrated by
12240                  POLK v. SANDOVAL
any kind of willful, deliberate and premeditated killing.”
Instruction No. 13. So far, the elements of first-degree murder
were clear. But Instruction No. 14 then defined away “will-
ful” and “deliberate” by equating them with “premeditated,”
and Instruction No. 15 reinforced this error by using the terms
“premeditation” and “deliberation” interchangeably. Instruc-
tion No. 15 provided, “Murder of the second degree is murder
with malice aforethought, but without the admixture of pre-
meditation. [¶] All murder which is not murder of the first
degree is murder of the second degree.” The State exacerbated
the problem in its rebuttal by emphasizing premeditation and
urging the jury to convict Polk of first-degree murder because
“it only takes successive thoughts of the mind. All it takes is
pointing the weapon and pulling the trigger.”

   [5] Instead of acknowledging the violation of Polk’s due
process right, the Nevada Supreme Court concluded that giv-
ing the Kazalyn instruction in cases predating Byford did not
constitute constitutional error. In doing so, the Nevada
Supreme Court erred by conceiving of the Kazalyn instruction
issue as purely a matter of state law. Rather, the question of
whether there is a reasonable likelihood that the jury applied
an instruction in an unconstitutional manner is a “federal con-
stitutional question.” See Francis, 471 U.S. at 316. The state
court failed to analyze its own observations from Byford
under the proper lens of Sandstrom, Franklin, and Winship,
and thus ignored the law the Supreme Court clearly estab-
lished in those decisions—that an instruction omitting an ele-
ment of the crime and relieving the state of its burden of proof
violates the federal Constitution. See Evanchyk v. Stewart,
340 F.3d 933, 939-40 (9th Cir. 2003). Since the Nevada
Supreme Court “fail[ed] to apply the correct controlling
authority,” its decision was contrary to clearly established
federal law, as determined by the Supreme Court. Clark v.
Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citing Williams
v. Taylor, 529 U.S. 362, 413-14 (2000)).
                          POLK v. SANDOVAL                 12241
                     B.     Harmless Error

   [6] Polk is not entitled to relief unless he can show that “the
error had a substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (internal quotation marks and citation
omitted); see also Fry v. Pliler, 127 S.Ct. 2321 (2007); Cali-
fornia v. Roy, 519 U.S. 2, 4-6 (1996) (per curiam) (applying
harmless error standard to jury instructions that omit an ele-
ment of the crime); Evanchyk, 340 F.3d at 940-41. “If we are
in grave doubt as to whether the error had such an effect, the
petitioner is entitled to the writ.” Coleman v. Calderon, 210
F.3d 1047, 1051 (9th Cir. 2000). We conclude that the Kaza-
lyn instruction did have a substantial and injurious effect or
influence in determining the jury’s verdict of first-degree
murder.

   As explained above, the instruction collapsed the three ele-
ments of first-degree murder (willfulness, deliberation, and
premeditation) into one: premeditation. Premeditation was
defined as being as “instantaneous as successive thoughts of
the mind.” This left no room for deliberation or “coolness and
reflection” and permitted the jury to convict Polk of first-
degree murder even if the determination to kill was a “mere
unconsidered and rash impulse” or “formed in passion.”
Byford, 994 P.2d at 714. The State further blurred the line by
arguing in closing that “[a]ll it takes is pointing the weapon
and pulling the trigger. That’s successive thoughts of the
mind.” It is reasonably probable that this error resulted in
Polk being convicted of first-degree murder without the jury
having first found the essential element of deliberation, or
“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,” Id. (emphasis added).

  The evidence against Polk was not so great that it precluded
a verdict of second-degree murder. The State’s evidence on
12242                  POLK v. SANDOVAL
deliberation was particularly weak. The State points to only
three pieces of evidence: (1) Polk had threatened and fought
with Hodges about two months before the murder, (2) there
was a loud argument at the scene of the murder shortly before
gunshots were heard; and (3) Polk borrowed a bulletproof
vest on the evening of the murder, which witnesses testified
that he wore.

   The first two items do not compel—or even strongly
support—a finding of deliberation. In context, Polk’s state-
ment to Hodges more than a month before the incident that
“I’ll shoot you[,] I like to shoot people,” does not show Polk
was coolly planning to kill his long-time friend. Witnesses
testified that Polk and Hodges, who had been friends since
childhood, had a history of fighting and making up. Even
Peach testified that she did not believe that the threat was seri-
ous. See United States v. Jimison, ___ F.3d ___, 2007 WL
2028131, at *2 (9th Cir. July 16, 2007) (“Most of us make
empty statements out of frustration from time to time . . . .
[T]hese exclamations . . . don’t generally connote any intent
to commit violence. This is especially true when the statement
is made as a result of agitation or emotional distress, as was
the case here.”).

   Second, witnesses heard arguing at the scene right before
gunshots were fired. This evidence actually weighs against a
finding of deliberation: it provides more support for the con-
clusion that Polk shot Hodges in the heat of the moment and
without “coolness and reflection.” Even the State argued,
“[t]he defendant killed, and he killed for one reason only:
anger.” Cf. Byford, 994 P.2d at 712-13 (holding that the “evi-
dence was sufficient for the jurors to reasonably find that
before acting to kill the victim Byford weighed the reasons for
and against his action, considered its consequences, distinctly
formed a design to kill, and did not act simply from a rash,
unconsidered impulse,” where Byford had discussed shooting
the victim with an accomplice beforehand, then participated
in “calmly and dispassionately sh[ooting] the victim in the
                       POLK v. SANDOVAL                    12243
absence of any provocation, confrontation, or stressful cir-
cumstances of any kind,” by following up his accomplice’s
gunfire by “sa[ying] that he would make sure she was dead,
and sh[ooting] her in the head twice.”).

   [7] In fact, there is only a single piece of evidence suggest-
ing that Polk engaged in a deliberate weighing process and
consideration of the consequences: the testimony that Polk
borrowed a bulletproof vest a few hours before the murder.
However, this evidence is weak support for a finding of delib-
eration. Donning a bulletproof vest is a defensive step.
Although the jury could conclude that by undertaking such
defensive planning, Polk was dispassionately weighing the
risks and considering the consequences of killing Hodges, the
defensive nature of this action more strongly suggests that
Polk anticipated a confrontation which could dangerously
escalate, and in which he might be a target. Moreover, the sig-
nificance of the bulletproof vest evidence was undercut by the
comments of the prosecutor, who told the jurors not to con-
sider the implication of this evidence in light of the overriding
importance of the erroneous Kazalyn instructions. The prose-
cutor told the jurors, “It doesn’t matter if he had the vest or
not. That’s just one fine nuance that we have, because it only
takes successive thoughts of the mind. All it takes is pointing
the weapon and pulling the trigger.”

   [8] In light of the State’s exceptionally weak evidence of
deliberation, we simply cannot conclude that the Kazalyn
error was harmless. Since we are left “in grave doubt” about
whether the jury would have found deliberation on Polk’s part
if it had been properly instructed, we conclude that the error
had a substantial and injurious effect or influence on the
jury’s verdict.

                    IV.   CONCLUSION

  The instructions given by the trial court permitted the jury
to convict Polk for first-degree murder without finding all
12244                  POLK v. SANDOVAL
three elements of the crime: willfulness, deliberation, and pre-
meditation. Polk’s federal constitutional due process right was
violated, and the error was not harmless. The Nevada
Supreme Court’s decision affirming Polk’s conviction and
rejecting his due process claim was contrary to clearly estab-
lished Supreme Court law. Thus, we reverse and remand to
the district court with instructions to grant the writ unless the
State elects to retry Polk within a reasonable time.

  REVERSED AND REMANDED.
