                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LATISHA MARIE BABB,                      No. 11-16784
              Petitioner-Appellee,
                                            D.C. No.
                v.                       2:05-cv-00061-
                                            PMP-RJJ
JENNIFER LOZOWSKY and E. K.
MCDANIEL,
           Respondents-Appellants.         OPINION


     Appeal from the United States District Court
              for the District of Nevada
       Philip M. Pro, District Judge, Presiding

                 Argued and Submitted
       July 20, 2012—San Francisco, California

                Filed January 11, 2013

    Before: A. Wallace Tashima, Richard R. Clifton,
         and Mary H. Murguia, Circuit Judges.

              Opinion by Judge Murguia
2                      BABB V . LOZOWSKY

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s grant of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
and robbery conviction, due to an unconstitutional jury
instruction given pursuant to Kazalyn v. State, 825 P.2d 578
(Nev. 1992).

    While petitioner Babb’s direct appeal was pending, the
Nevada Supreme Court invalidated the Kazalyn instruction in
Byford v. State, 994 P.2d 700 (Nev. 2000), which held that
the Kazalyn instruction blurred the three elements of first
degree murder – willfulness, deliberation and premeditation –
and relieved the state of its burden of proving each element
of the crime. Although this Court granted habeas relief in
Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), based on a
Kazalyn instruction, the Nevada Supreme Court subsequently
clarified in Nika v. State, 198 P.3d 839 (Nev. 2008), that
Byford announced a new interpretation of the state murder
statute that changed the law, as opposed to clarifying it. The
district court determined that it was bound by this Court’s
decision in Polk and granted habeas relief to Babb.

    The panel first held that the Nevada state court
unreasonably applied established federal law expressed in
Bunkley v. Florida, 538 U.S. 835 (2003) (per curiam), and
violated Babb’s due process rights by not applying Byford.
The panel explained that Polk did not control the outcome of

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    BABB V . LOZOWSKY                       3

this case because Nika undermined this Court’s holding in
Polk as to the constitutionality of the Kazalyn instruction.
The panel further explained that Byford applied to Babb’s
case because newly declared constitutional rules must be
applied to convictions that were not yet final at the time the
change occurs.

    The panel next held that the error was harmless because
the panel was reasonably certain that no juror convicted Babb
based on the theory of premeditation, given overwhelming
evidence supporting the felony murder theory and the
prosecutor’s focus on that theory during closing argument.

    The panel remanded for the district court to consider
Babb’s other claims, which were not addressed when the
district court granted relief.


                        COUNSEL

Lisa A. Rasmussen, Las Vegas, Nevada, for Petitioner-
Appellee.

Adam L. Woodrum and Victor-Hugo Schulze, II, Office of
the Nevada Attorney General, Las Vegas, Nevada, for
Respondent-Appellant.
4                    BABB V . LOZOWSKY

                          OPINION

MURGUIA, Circuit Judge:

    Appellants–Respondents Jennifer Lozowsky, the Warden,
and the Nevada Attorney General (“the State”) appeal the
district court’s grant of a writ of habeas corpus to
Appellee–Petitioner Latisha M. Babb pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254. Babb was convicted of first
degree murder with a deadly weapon, and robbery with a
deadly weapon, by a jury in Nevada state court for the murder
of cab driver John Castro in connection with a robbery. The
district court granted habeas relief, concluding that one of the
instructions for first degree murder given in Babb’s case,
known as the Kazalyn instruction, violated her due process
rights and that the improper instruction did not constitute
harmless error.

    We REVERSE.

                        Background

    On October 26, 1997, cab driver John Castro was found
shot in the head in Washoe County, Nevada. He ultimately
died from the wound.

    While investigating another shooting, police obtained
warrants to search the home and vehicle of Babb’s
codefendant and live-in boyfriend, Shawn Harte. At the time
the police stopped Harte in his car, Babb was with him. The
police found a .22 caliber pistol, a spotlight, a hand-held
radio, a magazine, and ammunition in the car. A shell casing
had been found inside the victim’s taxi cab. Forensic testing
                    BABB V . LOZOWSKY                      5

revealed that the shell casing had been fired from the gun
found in Harte’s car.

   Information obtained from Harte led police to question
Babb’s other co-defendant, Weston Sirex (“Sirex”), who
worked at a Reno taxi company. Sirex told the investigators:

       that it started out as a robbery, that they were
       northbound on Cold Springs Road, that he
       [Sirex] was looking out the window, that he
       [Sirex] turned around just in time to hear a
       shot and see the flash of a weapon, and that it
       wasn’t supposed to happen that way, or that
       he [Sirex] didn’t know it was going to happen
       that way.

Sirex also admitted to being party to discussions that a
robbery and a killing would take place, although he said that
the cab driver was not to be killed, unless absolutely
necessary. Babb, Harte, and Sirex were tried together, and
Sirex’s statements to police were read to the jury during the
trial.

    Harte also eventually made statements to police, wherein
he admitted to shooting Castro in the head. In addition, he
confessed to being the shooter in a letter to a woman he had
dated. He wrote:

       So this cab driver is just spurting off his
       mouth about how he got ‘ripped off’ $1000
       cash earlier, blah blah blah. Now what could
       that all have been about? Drugs. . . . It’s
       because of people like him that I don’t have a
       son or daughter. . . .
6                   BABB V . LOZOWSKY

       I chambered a round. . . . Point blank. An
       inch above the ear and two behind. Boom.
       That simple. That easy. No remorse.
       Honestly.

       I jumped up and let the cab coast right in front
       of a drug dealer’s house in Cold Springs.
       Perfect. Windows were up, so it was
       noiseless. . . . We left. Went to Circus Circus.
       Played some games, gambled – continued our
       good time. Went to Taco Bell. And ate.
       Went home. Simple. Nothing to it. Just
       another chore, like taking out the trash, except
       easier. And funner.

The letter and Harte’s statements to the police were also read
to the jury.

    Harte and Sirex did not testify at trial, and they did not
mention Babb’s involvement in their statements to the police.
When Babb was interviewed by a newspaper reporter after
her arrest, however, she made the following statements to the
reporter admitting her involvement in the robbery:

       I was the driver.

       It was maybe a 15-minute plan. We weren’t
       out to get this specific person.

       I jokingly said, “Let’s rob a cab. It’s easy
       enough.” So we did.
                    BABB V . LOZOWSKY                      7

       I didn’t hear the gunshot. I didn’t even know
       he was shot until I pulled up alongside the car
       and heard him [the driver] breathing.

       The cab stopped in Cold Springs, and I pulled
       in front of it.

       I looked and saw him in the front seat with his
       head rolled back.

       When I thought about it later, I kept hearing
       his breath.

       I thought maybe someone else would rob a
       cab and they’d think he did it. I was broke
       and I had just lost my job. I needed the
       money to pay my bills. I have a lot of debt.
       For the money we got, that man’s life wasn’t
       worth it.

       How do you tell people you were involved in
       a murder? How will I tell my mom?

       I acknowledge this happened and I feel bad.
       I have nothing to hide. What’s done is done.
       This is forever, nobody will forget. You see
       it on TV and you know that you did that. I
       didn’t want any of this.

Babb also did not testify at trial, but her statements to the
reporter were read to the jury.
8                   BABB V . LOZOWSKY

   Babb was charged with robbing and murdering John
Castro. The jury was given the following instruction for first
degree murder:

       As it applies to this case Murder of the First
       Degree is:

       a) Murder which is any kind of willful,
       deliberate and premeditated killing: or

       b) Murder which is committed in the
       perpetration of a Robbery. Murder in the
       Second Degree is all other kinds of Murder.

Instruction 18 (emphases added).

    The jury instructions also included the following
instruction for first degree murder, sometimes referred to as
the Kazalyn instruction, named for the Nevada Supreme
Court decision which approved it, Kazalyn v. State, 825 P.2d
578 (Nev. 1992):

       the unlawful killing must be accompanied
       with deliberate and clear intent to take life in
       order to constitute Murder of the First Degree.
       The intent to kill must be the result of
       deliberate premeditation.

       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 instantaneous as
                   BABB V . LOZOWSKY                    9

       successive 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
       premeditation, no matter how rapidly the
       premeditation is followed by the act
       constituting the killing, it is willful,
       deliberate and premeditated murder.

Instruction 23 (emphasis added). The judge also instructed
the jury to apply this definition of first degree murder
“[u]nless felony murder applies.”

   The jury was given the following instruction for felony
murder:

       Whenever death occurs during the
       perpetration of certain felonies, including
       Robbery, NRS 200.030 defines this as Murder
       in the First Degree. This is known as the
       “felony murder rule.”

       Therefore, an unlawful killing of a human
       being, whether intentional, unintentional or
       accidental, which is committed in the
       perpetration of a Robbery, is Murder in the
       First Degree if there was in the mind of the
       defendants the specific intent to commit the
       crime of Robbery.
10                      BABB V . LOZOWSKY

         The specific intent to commit Robbery must
         be proven by the state beyond a reasonable
         doubt.

Instruction 20.1

   The jury found Babb guilty of robbery with a deadly
weapon and first degree murder with a deadly weapon. This
was a general verdict, however, and did not specify under
which theory the jury found Babb guilty of first degree
murder. Babb was sentenced to two consecutive life



  1
    The jury was also instructed regarding first degree murder on an aiding
and abetting theory. This instruction permitted the jury to find Babb
guilty of first degree murder if she aided and abetted Harte in committing
first degree murder:

             In order to find Latisha Marie Babb . . . guilty of
         the crime of murder, as charged in Count I of the
         Indictment, you must be satisfied beyond a reasonable
         doubt that:

            1. The crimes of M urder and Robbery were
         committed;

             2. Latisha Marie Babb . . . aided and abetted such
         crimes.

            3. Shawn Russell Harte, a co-principal,
         committed the crimes of Murder and Robbery, and

             4. The crime of Murder was a natural and
         probable consequence of the commission of the crime
         of Robbery.

Instruction 22.
                         BABB V . LOZOWSKY                              11

sentences without parole for the murder conviction.2 She was
also sentenced to two consecutive terms of 72–180 months in
prison for the robbery conviction, running concurrently with
the murder sentence.

    The Nevada Supreme Court affirmed Babb’s conviction
and sentence on direct appeal. On May 27, 2009, Babb filed
a Second Amended Petition for Writ of Habeas Corpus in the
United States District Court, District of Nevada. Ground
twelve of the petition alleged that Babb was denied her Fifth
and Fourteenth Amendment rights to due process and trial by
an impartial jury because the state trial court failed to instruct
the jury properly regarding premeditation and deliberation.
In the last reasoned decision by the state court, the Nevada
Supreme Court held:

         Appellant[] also challenge[s] the giving of
         Instruction 23, the “Kazalyn instruction,”
         which was ultimately criticized in Byford v.
         State. Appellant[] argue[s] that the instruction
         improperly merges the concepts of
         premeditation and deliberation and, therefore,
         reduces the State’s burden of proof in
         violation of due process. . . . As we have
         recently held, the giving of the Kazalyn
         instruction in cases like this one, which
         preceded the Byford decision, constitutes
         neither plain nor constitutional error.



  2
     W hen Babb participated in Castro’s murder, Nevada law required
courts to impose a second, consecutive sentence on a defendant who used
a deadly weapon in the commission of a crime; the second sentence was
to be of the same length as the first. See Nev. Rev. Stat. § 193.165 (1997).
12                  BABB V . LOZOWSKY

Babb v. State, No. 34195 (Nev. July 10, 2001) (footnotes
omitted).

    The district court granted relief on Babb’s Fourteenth
Amendment claim on the basis that: 1) the Ninth Circuit held
in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), that the
Kazalyn instruction was unconstitutional because it blurred
the elements of premeditation and deliberation, thereby
relieving the State of the burden of proving each element of
a crime, as required by Supreme Court precedent; and 2) due
process required that Byford v. State, 994 P.2d 700 (Nev.
2000), which narrowed the category of cases that could be
considered murder, be applied to Babb, whose conviction was
not final when Byford was decided.

    The district court also conducted a harmless error
analysis. The court determined that, because the jury was
presented with multiple theories of first degree murder and
delivered a general verdict, the impact of the improper
instruction was unclear. Because the court had grave doubt
about whether all jurors agreed that felony murder was the
theory by which they found Babb guilty, the error was not
harmless. The district court did not reach any of Babb’s other
claims for relief.

    The State appeals the district court’s judgment granting
the writ.

                    Standard of Review

    This Court reviews de novo a district court’s decision to
grant or deny a petition for the writ of habeas corpus under
28 U.S.C. § 2254. Cooper v. Neven, 641 F.3d 322, 326 (9th
Cir. 2011). The Court reviews findings of fact for clear error.
                    BABB V . LOZOWSKY                       13

Id. Mixed questions of law and fact involving constitutional
issues are reviewed de novo. Id. Under AEDPA, a habeas
petitioner cannot obtain relief based on a claim adjudicated
on the merits in state court unless the adjudication of the
claim “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.” 28 U.S.C. § 2254(d). Under AEDPA, “clearly
established Federal law” refers to the holdings, as opposed to
the dicta, of the Supreme Court’s decisions as of the time of
the relevant state court decision. Lockyer v. Andrade,
538 U.S. 63, 71 (2003).

                          Analysis

   I. Background of Nevada’s Kazalyn Instruction

    The Nevada statutes define first degree murder, in
relevant part, as murder perpetrated by “willful, deliberate
and premeditated killing.” Nev. Rev. Stat. § 200.030(1)(a).
In Kazalyn, the Nevada Supreme Court approved the
instruction for first degree murder that is at the center of
Babb’s habeas claim:

       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 successive thoughts of the mind. If the
       jury believes from the evidence that the act
       constituting the killing has been preceded
       by and has been the result of
14                       BABB V . LOZOWSKY

          premeditation, no matter how rapidly the
          premeditation is followed by the act
          constituting the killing, it is willful,
          deliberate and premeditated murder.

825 P.2d at 583 (emphasis added).

    Eight years later, in Byford, the Nevada Supreme Court
determined that the Kazalyn instruction was deficient because
it defined only premeditation, and failed to provide an
independent definition for deliberation. 994 P.2d at 713. The
Nevada Supreme Court in Byford noted that in its prior
decisions, the terms premeditated, deliberate and willful were
considered a single phrase rather than independent elements
of the mens rea for first degree murder. Id. (citing Greene v.
State, 931 P.2d 54, 61 (Nev. 1997); Powell v. State, 838 P.2d
921, 926–27 (Nev. 1992), vacated on other grounds by
511 U.S. 79 (1994); and Scott v. State, 554 P.2d 735, 737 n.2
(Nev. 1976)). The court determined that, by failing to treat
the terms as independent elements, the Kazalyn instruction
improperly blurred the distinction between first and second
degree murder. Id. at 713. The Nevada Supreme Court also
noted that “[i]t is clear from the statute that all 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 713–14 (internal
citations and quotation marks omitted). Byford set out
instructions providing separate definitions for willfulness,
deliberation and premeditation.3 The Byford court did not


 3
     The new instructions provide:

              Murder of the first degree is murder which is
          perpetrated by means of any kind of willful, deliberate,
                BABB V . LOZOWSKY                            15


and premeditated killing.      All three elements –
willfulness, deliberation and premeditation – must be
proven beyond a reasonable doubt before an accused
can be convicted of first degree murder.

     W ilfulness is the intent to kill. T here need be no
appreciable space of time between formation of the
intent to kill and the act of killing.

    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.

    A deliberate determination may be arrived at in a
short period of time. But in all cases the determination
must not be formed in passion, or if formed in passion
it must be carried out after there has been time for the
passion to subside and deliberation to occur. A mere
unconsidered and rash impulse is not deliberate, even
though it includes the intent to kill.

     Premeditation is a design, a determination to kill,
distinctly formed in the mind by the time of the killing.

     Premeditation need not be for a day, an hour or
even a minute. It may be as instantaneous as
successive 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
premeditation, no matter how rapidly the act follows
the premeditation, it is premeditated.

     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.
16                     BABB V . LOZOWSKY

cite any constitutional basis for its ruling. Id. at 714–15.

    After Byford, the Nevada Supreme Court held in Garner
v. State, 6 P.3d 1013, 1025 (Nev. 2000), overruled on other
grounds by Sharma v. State, 56 P.3d (Nev. 2002), that the
new first degree murder instructions would not be applied to
cases whose appeals were pending on direct review at the
time Byford was decided. The Garner court noted that
although newly declared constitutional rules had to be applied
to cases pending on direct appeal, Byford had no
constitutional basis. Id. at 1025 (citing Griffith v. Kentucky,
479 U.S. 314 (1987)).

     In 2007, this Court granted habeas corpus relief under
28 U.S.C. § 2254 to a Nevada inmate who claimed that the
Kazalyn instruction violated his right to a fair trial under the
Fifth and Fourteenth Amendments. Polk, 503 F.3d at 913.
The Polk Court noted that, although the Nevada Supreme
Court in Byford had not addressed the constitutional
implications of its decision, the Kazalyn instruction violated
federal due process because it relieved the state of the burden
of proving all elements of the crime by permitting the jury to
find willful, deliberate, and premeditated murder so long as
it found premeditation. Id. at 910. The Court specifically
quoted language in Byford stating that it was clear from the


             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.

Byford, 994 P.2d at 714–15.
                    BABB V . LOZOWSKY                       17

statute that all three elements had to be proved beyond a
reasonable doubt. Id. This Court thus concluded that by
relieving the State of the burden of proving each element
beyond a reasonable doubt, the Kazalyn instruction violated
established federal law, including In re Winship, 397 U.S.
358, 364 (1970), Francis v. Franklin, 471 U.S. 307 (1985)
and Sandstrom v. Montana, 442 U.S. 510 (1979). Id. at 911.

    Subsequently, however, the Nevada Supreme Court held
in Nika v. State, 198 P.3d 839, 849 (Nev. 2008), that the
Byford decision was not a clarification of the murder statute
– that is, Byford had not righted prior decisions’ incorrect
interpretations of Nevada’s murder statute. Rather, the Nika
court explained, Byford had announced a new interpretation
of the murder statute, which changed the law. Id. The Nika
court declared that any language in Byford and Garner
suggesting that Byford was a clarification rather than a new
rule was dicta. Id. at 849–50. According to Nika, this Court
in Polk was wrong in concluding that the Kazalyn instruction
was a violation of due process because the instruction
accurately represented the elements of first degree murder up
until Byford was decided. Thus, before Byford was decided,
the Kazalyn instruction did not improperly relieve the State
of the burden of proving all the elements of first degree
murder. Id. at 850.

    The Nika court also determined, however, that its prior
decision in Garner wrongly held that the federal Constitution
did not require application of the new rule to convictions that
were not yet final at the time Byford was decided. The Nika
decision explained that because the change effected by Byford
narrowed the scope of the criminal statute, it should, as a
matter of due process, apply to anyone whose conviction was
18                   BABB V . LOZOWSKY

not final at the time Byford was decided. Id. (citing Bunkley
v. Florida, 538 U.S. 835, 841–42 (2003) (per curiam)).

     II. Babb’s claim for habeas relief

        A. Babb’s claim that the Kazalyn instruction is
           unconstitutional because it omits an element of
           premeditated murder.

    The district court held that because the Kazalyn
instruction failed to provide a definition of deliberation that
was independent of premeditation, the instruction was
unconstitutional. The district court thus concluded that it was
bound by this Court’s holding in Polk, despite the Nevada
Supreme Court’s subsequent holding in Nika that Byford
represented a change in, rather than a clarification of, the law.
On appeal, the State argues that after the Nika decision, Polk
does not control the outcome of this case. We agree with the
State.

    The Nevada Supreme Court’s decision in Nika made clear
that under pre-Byford law, premeditation, deliberation and
wilfulness were not distinct and independent elements of first
degree murder, and that Byford’s decision requiring separate
definitions for these terms represented a change in, rather
than a clarification of, the law. There is an important
distinction between decisions that clarify the law and
decisions that change the law. A clarification is essentially a
“correction” that provides the proper interpretation of a
statute, whereas a change in the law is a new court-created
rule. Fiore v. White, 531 U.S. 225, 228 (2001). Federal due
process requires that a state vacate a conviction, even a final
conviction that has been affirmed on appeal, where a
clarification reveals that a defendant was convicted “for
                     BABB V . LOZOWSKY                        19

conduct that [the state’s] criminal statute, as properly
interpreted, does not prohibit.” Id.

       There was language in Byford suggesting that the
decision represented a clarification of the law. The Byford
court stated, for instance, that “[i]t is clear from the statute
that all three elements, willfulness, 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). There are also portions of Byford, however, that
indicate that the terms premeditated and deliberate were not
distinct elements.        Id. (noting that “deliberate” and
“premeditated” were previously both included in jury
instructions without being individually defined and citing
Greene, 931 P.2d at 61, which said “the terms premeditated,
deliberate and willful were a single phrase, meaning simply
that the actor intended to commit the act and intended death
as a result of the act”). Nika made clear that Byford
represented a change in the law, and that any language in
Byford suggesting it was a clarification was dicta. 198 P.3d
at 850. Whether a particular decision represents a change in,
or clarification of, the law is a matter of state law. See Fiore,
531 U.S. at 228 (noting uncertainty regarding whether
decision represented clarification or change in law and
certifying question to Pennsylvania Supreme Court); see also
Bunkley, 538 U.S at 842 (noting state court decision
represented change in state law and certifying question to
Florida Supreme Court regarding when change occurred).

    The Nika decision explaining that Byford represented a
change in, rather than a clarification of, law undermines the
basis of this Court’s holding in Polk with regard to the
constitutionality of the Kazalyn instruction. Polk was
20                     BABB V . LOZOWSKY

premised on the understanding that the Nevada murder statute
mandated separate definitions of deliberation and
premeditation. 503 F.3d at 910 (citing portion of Nika
stating, “[i]t is clear from the statute that all three elements,
willfulness, deliberation, and premeditation, must be proven
beyond a reasonable doubt before an accused can be
convicted of first degree murder”). “[W]here the reasoning
or theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority,
a three-judge panel should consider itself bound by the later
and controlling authority, and should reject the prior circuit
opinion as having been effectively overruled.” Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
Because the Nevada Supreme Court, which is the ultimate
authority in interpreting and deciding questions of Nevada
state law, explained in Nika that Byford was a change in,
rather than a clarification of, the law concerning premeditated
murder, Polk’s holding has been disapproved (effectively
overruled by Nika) and therefore does not govern the
outcome of this case.4 Cf. United States v. Flores-Meja,
687 F.3d 1213, 1215 (9th Cir. 2012) (concluding that because
California Supreme Court decision did not change elements
of robbery, Ninth Circuit precedent still governed).

     Babb argues that Polk’s holding survives Nika and that by
failing to provide an independent definition of deliberation,
the Kazalyn instruction violated her due process rights even
if Byford was a change in the law. We disagree. The




 4
   Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008), which held that
the Kazalyn instruction was unconstitutional, citing Polk, was decided
before Nika, and so is also not controlling here.
                        BABB V . LOZOWSKY                             21

Kazalyn instruction did not treat deliberation and
premeditation as distinct elements of the mens rea for first
degree murder requiring independent definitions because, as
Nika explained, they were not separate elements under
Nevada law until Byford. Although the Supreme Court has
held that jury instructions omitting an element of the crime
unconstitutionally diminish the state’s burden, see, e.g.,
United States v. Gaudin, 515 U.S. 506, 509–10, 522–23
(1995); Neder v. United States, 527 U.S. 11–13 (1999),
whether a term in a statute constitutes a distinct element of
the crime with an independent definition is a question of state
law. See Schad v. Arizona, 501 U.S. 624, 636 (1991) (“In
cases, like this one, involving state criminal statutes . . . we
are not free to substitute our own interpretation of state
statutes for those of a State’s courts. If a State’s courts have
determined that certain statutory alternatives are mere means
of committing a single offense, rather than independent
elements of the crime, we simply are not at liberty to ignore
that determination and conclude that the alternatives are, in
fact, independent elements under state law.”); see also
Evanchyk v. Stewart, 340 F.3d 933, 936 (9th Cir. 2003)
(noting that the Arizona Supreme Court responded to certified
question that intent to kill is an essential element of the
offense of conspiracy to commit first degree murder). There
is no constitutionally mandated definition of premeditation or
deliberation, and whether these are independent elements
with distinct meanings is a question of state law.5

 5
    By way of example, federal law, like the Nevada murder statute, also
defines first degree murder as any killing that is “willful, deliberate,
malicious and premeditated.” 18 U.S.C. § 1111. Model federal jury
instructions, like the Kazalyn instruction, conflate the definitions of
premeditation and deliberation, stating “Premeditation means with
planning or deliberation.” Kevin F. O’Malley, et. al., Federal Jury Prac.
and Instr. § 45.03 (6th ed.); accord Ninth Cir. Model Criminal Jury
22                       BABB V . LOZOWSKY

    Polk did not hold, and could not have held, that where a
statute includes both premeditation and deliberation in its
definition of the mens rea for first degree murder, it is a
violation of due process if the jury instruction fails to provide
independent definitions for each of those terms. After Nika,
Babb’s claim that the Kazalyn instruction violated her due
process rights because it did not provide a distinct definition
for deliberation must fail.

         B. Babb’s claim that the change in Byford should
            be applied to her because it narrowed the
            definition of premeditated murder before
            Babb’s conviction became final.

    The district court also determined that, because the
change in the law announced in Byford occurred before
Babb’s conviction became final, it was a violation of her due
process rights not to apply the new instruction (which
narrowed the scope of conduct that could be defined as
premeditated murder) to her case. We agree with the district
court.

    The district court cited Fiore and Bunkley as the bases for
its decision.6 In Fiore, the Supreme Court invalidated a


Instructions 8.107 (M urder–First Degree); see also United States v.
Agofsky, 516 F.3d 280, 282 n. 2 (5th Cir. 2008) (“a killing is
‘premeditated’ when it is the result of planning or deliberation”).

 6
    The district court also cited Nika’s holding that the Byford instruction
for premeditated murder should be applied to cases whose appeals were
not final at the time Byford was decided. 198 P.3d at 850. Unless Nika’s
holding was premised on clearly established federal law, it would not form
a basis for habeas relief under AEDPA. See Bradley v. Duncan, 315 F.3d
1091, 1100 (9th Cir. 2002) (noting that it is a federal due process
                         BABB V . LOZOWSKY                              23

conviction based on a clarification of state law. 531 U.S. at
227. The petitioner in Fiore had been convicted under a
Pennsylvania statute that prohibited operating a hazardous
waste facility without a permit. Id. Although Fiore in fact
had a permit, he deviated so far from the permit’s terms that
he was found to have violated the statute. Id. at 226–27.
After his conviction became final, the Pennsylvania Supreme
Court held that one who deviates from his permit’s terms
does not lack a permit and could not be found to be in
violation of the statute. Id. at 227. Subsequently, Fiore
petitioned for federal habeas corpus relief.

    The Supreme Court granted certiorari, in part, to decide
when or whether the federal Due Process Clause requires the
retroactive application of a new interpretation of a state
criminal statute. Id. In order to determine if that question
was in fact presented, the Supreme Court certified a question
to the Pennsylvania Supreme Court, asking whether its
decision that someone with a permit could not violate the
statute prohibiting operating a machine without a permit was
a new interpretation (i.e. a change in the law) or a
clarification (i.e. a correct statement of the law at the time
Fiore’s conviction became final). Id. The Pennsylvania
Supreme Court responded that the interpretation “did not
announce a new rule of law” but rather “clarified the plain
language of the statute . . . furnish[ing] the proper statement


violation, “not the state law error,” that triggers habeas relief). The fact
that the Nevada Supreme Court held in Nika that the Byford instruction
should be applied to cases such as Babb’s involving convictions that were
not final at the time Byford was decided, is not dispositive under AEDPA
because Nevada law is not clearly established federal law. See Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764
(1990) (“[F]ederal habeas corpus relief does not lie for errors of state
law.”)).
24                   BABB V . LOZOWSKY

of law at the date Fiore’s conviction became final.” Id. at
228. The Supreme Court held that, given that Pennsylvania’s
new ruling was not new law, the question was “simply
whether Pennsylvania can, consistently with the federal Due
Process Clause, convict Fiore for conduct that its criminal
statute, as properly interpreted, does not prohibit.” Id. The
Supreme Court held that Fiore’s conviction and continued
incarceration violated due process, citing the rule that the
State must prove the elements of a crime beyond a reasonable
doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 316
(1979), and In re Winship, 397 U.S. at 364).

     Because there had been a clarification in the law, the
Supreme Court in Fiore did not decide whether or under what
circumstances a change in state law should be applied to
invalidate a prior conviction. The Supreme Court did
subsequently address this issue, however, in Bunkley. As in
Fiore, the Supreme Court in Bunkley considered the impact
of a change in the interpretation of a state statute on a
conviction. 538 U.S. at 838. The petitioner in Bunkley had
been convicted of burglary in the first degree. Bunkley
received a life sentence because he was carrying a
pocketknife with a 2.5 to 3-inch blade at the time of the
crime, which the jury concluded was a deadly weapon. Id. at
836–37. Although the statute created an exception for the
“common pocketknife,” the term was undefined. Id. at 837.
If the pocketknife exception had applied, Bunkley could only
have been convicted of burglary in the third degree, which
had a maximum sentence of five years. Id. After Bunkley’s
conviction became final, the Florida Supreme Court
determined that a knife with a blade of 3.75 inches plainly fell
within the exception. Id. Bunkley sought state habeas relief,
but the Florida Supreme Court declined, stating that its ruling
                         BABB V . LOZOWSKY                              25

was an “evolutionary refinement in the law,” id. at 838,
which did not apply retroactively under Florida law.

     On federal habeas review, the Supreme Court certified a
question to the Florida Supreme Court, asking whether, at the
time Bunkley’s conviction became final in 1989, his 2.5–3
inch pocketknife was a weapon under the law at that stage in
its evolution. The Court understood that the Florida ruling
represented a change in state law, and noted the importance
of when the change occurred. The Supreme Court said that
“If Bunkley’s pocketknife fit within the ‘common
pocketknife exception [] in 1989 [when his conviction
became final], then Bunkley was convicted of a crime for
which he cannot be guilty . . . .” Id. at 841 (emphasis added).
The Supreme Court thus indicated that failing to apply a
potentially exonerating change in the law to a conviction
which was not final at the time of the change would have the
same effect as failing to apply a clarification of the law; it
would permit the state to convict someone without proving
the elements of the crime in violation of the Due Process
Clause. Id.

   The rulings in Bunkley and Fiore confirm that the
Supreme Court’s holding in Griffith v. Kentucky, 479 U.S.
314 (1987) – that newly declared constitutional rules must be
applied to convictions that were not yet final at the time the
change occurs – extends to some changes in state law.7 One

   7
      The Supreme Court has also held that due process requires the
retroactive application of substantive changes in federal law that narrow
the scope of a criminal statute, and that this even extends to convictions
that are final at the time of the change. Bousley v. United States, 523 U.S.
614 (1998). W hether this principle of retroactivity extends to changes in
state law is the question that was explicitly left open in both Fiore and
Bunkley.
26                   BABB V . LOZOWSKY

principle underlying Griffith is that it is a violation of due
process to affirm a conviction “when the new ruling was that
a trial court lacked authority to convict a criminal defendant
in the first place.” 479 U.S. at 324 (citing United States v.
Johnson, 457 U.S. 537, 550 (1982)). This principle would
necessarily apply to a change in the definition of the elements
of mens rea for first degree murder. “New elements alter the
range of conduct the statute punishes, rendering some
formerly unlawful conduct lawful or vice versa.” Schriro v.
Summerlin, 542 U.S. 348, 354 (2004).

    While Griffith alone would not be sufficient to invalidate
Babb’s conviction because the change at issue was a change
in state law, see Murtishaw v. Woodford, 255 F.3d 926,
955–56 (9th Cir. 2001), Bunkley confirmed that it is a
violation of due process not to apply changes in state law to
a petitioner’s conviction that was not final at the time the
change occurred. 538 U.S. at 841 (“If Bunkley’s pocketknife
fit within the ‘common pocketknife’ exception [before his
conviction became final], then Bunkley was convicted of a
crime for which he cannot be guilty.”).

    The State argues that Bunkley is merely persuasive
authority, because the Supreme Court in that case did not
actually hold that due process requires that changes in state
law be applied to convictions that are not yet final, but only
certified a question to the Florida Supreme Court. Although
the Supreme Court stopped short of holding that changes in
state law must be applied to convictions that are not yet final,
Bunkley confirmed that failing to apply such changes would
have the same effect as failing to give retroactive application
to a clarification; it would permit the state to convict
individuals who are not guilty of a crime under the applicable
law. Thus, after the Supreme Court’s decision in Bunkley, it
                     BABB V . LOZOWSKY                        27

was an unreasonable application of established federal law
and a violation of Babb’s due process rights for the Nevada
court not to apply the change in Byford, which narrowed the
category conduct that can be considered criminal, to her case.
While it does not constitute an express holding, Bunkley made
clear that Griffith’s holding, requiring new rules to apply to
convictions that are not yet final, extends to changes in state
law that narrow the category of conduct that can be
considered criminal. See Williams v. Taylor, 529 U.S. 362,
407 (2000) (noting that “a state-court decision also involves
an unreasonable application of [the Supreme Court’s]
precedent if the state court . . . unreasonably refuses to extend
that principle to a new context where it should apply”).
Byford, which narrowed the scope of conduct that could
qualify as first degree murder by expanding and separating
definitions of premeditation, deliberation and willfulness,
should be applied to Babb’s conviction, which was not final
at the time Byford was decided.

    III.    Harmless Error

    Although the Nevada state court unreasonably applied
established federal law when it failed to apply the change in
Byford to Babb, “a court must assess the prejudicial impact of
constitutional error in a state court criminal trial.” Fry v.
Pliler, 551 U.S. 112, 121 (2007). We must ask whether there
is a reasonable probability the error “‘had substantial and
injurious effect or influence in determining the jury’s
verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). “[W]here the record is so evenly balanced that a
conscientious judge is in grave doubt as to the harmlessness
of an error,” the petitioner must win. O’Neal v. McAninch,
513 U.S. 432, 437 (1995).
28                       BABB V . LOZOWSKY

    The district court in this case concluded that the general
verdict prevented it from determining whether the erroneous
Kazalyn instruction had influenced the jury in Babb’s case,
and said that it harbored “grave doubts” concerning the
harmlessness of the error.8 The State claims that rather than
apply the Brecht standard to assess the effect and influence of
the erroneous instruction, the district court essentially treated
the error here as a structural error, thus violating the Supreme
Court’s recent holding in Hedgpeth v. Pulido, 555 U.S. 57
(2008), that instructional errors occurring in the context of a
general verdict must still be reviewed for harmless error.

    Instructional errors are generally subject to harmless error
review. Neder, 527 U.S. at 7; California v. Roy, 519 U.S. 2,
5 (1996) (per curiam); Pope v. Illinois, 481 U.S. 497, 501
(1987). General verdicts, however, which permit a jury to
convict based on different possible theories – without
specifying the theory that forms the basis of the verdict – can
complicate this analysis. “A conviction based on a general
verdict is subject to challenge if the jury was instructed on
alternative theories of guilt and may have relied on an invalid
one.” Hedgpeth, 555 U.S. at 58 (citing Stromberg v.


 8
   Babb argues that the government waived the harmless error defense by
failing to raise it before the district court. Because the district court
addressed the issue, however, and because the parties thoroughly
addressed it in their briefs before this Court, we consider it. Selam v.
Warm Springs Tribal Corr. Facility, 134 F.3d 948, 952 (9th Cir. 1998)
(citing Willard v. California, 812 F.2d 461, 465 (9th Cir. 1987), and
addressing an issue not raised by parties because it was addressed by the
district court); see also Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002)
(noting that courts may address issues not raised before the district court
where “the issue presented is purely one of law and the opposing party
will suffer no prejudice as a result of the failure to raise the issue in the
trial court”).
                    BABB V . LOZOWSKY                       29

California, 283 U.S. 359 (1931) and Yates v. United States,
354 U.S. 298 (1957)). Even in the context of a general
verdict, however, instructional errors must still be subjected
to harmless error review. Id.

    In Hedgpeth, the Supreme Court reversed a decision by
this Court that a conviction based on a general verdict
constituted structural error. 555 U.S. at 62. The instructions
included an unconstitutional error that permitted the jury to
convict based on an invalid theory of guilt. This Court held
that because it could not be “absolutely certain” that the jury
had relied on a valid ground, such convictions were exempted
as a whole from harmless error review. Id. (quoting Pulido
v. Chrones, 487 F.3d 669, 676 (9th Cir. 2007)). The Supreme
Court explained that following its decision in Chapman v.
California, 386 US. 18 (1967), constitutional errors, such as
instructional errors occurring in the context of a general
verdict, should not be treated as structural errors. The Court
explained that substantial and injurious effects should not be
presumed simply because a general verdict form had been
used, and remanded the case for harmless error review.
555 U.S. at 62.

    The Supreme Court in Hedgpeth provided no guidance
regarding how to assess the impact of an erroneous
instruction in the context of a general verdict. Generally,
however, when considering whether erroneous instructions
constitute harmless error, courts ask whether it is reasonably
probable that the jury would still have convicted the
petitioner on the proper instructions. Belmontes v. Brown,
414 F.3d 1094, 1139 (9th Cir. 2005) (construing Brecht to
require “a reasonable probability” that the jury would have
reached a different verdict), rev’d on other grounds sub nom.
Ayers v. Belmontes, 549 U.S. 7 (2006).
30                      BABB V . LOZOWSKY

      Here, however, we need not inquire into the probability
that the jury, if given the proper instruction on premeditated
murder, would have convicted Babb on that theory, because
although the trial court gave an erroneous instruction on
premeditation, we can discern with reasonable probability
that the jury instead convicted Babb on a valid felony murder
theory. In order to convict Babb based on the felony murder
theory, the jury only had to find that she was guilty of
robbery, and that Castro was killed during the perpetration of
the robbery. The jury found Babb guilty of robbery, and the
facts in this case leave no doubt that Castro was killed in
perpetration of the robbery. In addition, during closing
argument, the prosecutor focused almost exclusively on the
felony murder theory with regard to Babb. In light of this
overwhelming evidence supporting the felony murder theory,
we can be reasonably certain that no juror convicted Babb
based on premeditation because the jury was specifically
instructed to only consider premeditated murder if felony
murder did not apply. See, e.g., United States v. Hastings,
134 F.3d 235, 242 (4th Cir. 1998) (if the evidence that the
jury “necessarily credited in order to convict the defendant
under the instructions given . . . is such that the jury must
have convicted the defendant on the legally adequate ground
. . . instead of the legally inadequate ground, the conviction
may be affirmed”). Under these circumstances, despite the
general verdict, the erroneous instructions constituted
harmless error, and the district court erred in concluding
otherwise.9




 9
    There is, of course, no way to be absolutely certain what leads a juror
to a particular decision. As the Supreme Court emphasized in Hedgpeth,
“absolute certainty” is not the standard for a court considering whether an
                       BABB V . LOZOWSKY                            31

    We emphasize that the issue is not simply whether we can
be reasonably certain that the jury could have convicted Babb
based on the valid theory of felony murder. See Kotteakos,
328 U.S. at 765 (“The inquiry cannot be merely whether there
was enough to support the result.”). The Supreme Court’s
point in Hedgpeth, that a combination of good and bad
instructions should not be considered more pernicious than a
single improper instruction, 555 U.S. at 61, is well taken.
When reviewing convictions, however, this Court is limited
in its ability to decipher a verdict, and cannot simply
substitute its judgment for that of the fact finder. General
verdict forms can further blur an already opaque
decisionmaking process, leaving us with the sort of grave
doubt that prevents us from concluding an error was
harmless. O’Neal, 513 U.S. at 437. Here, however, we can
be reasonably certain, based on the particular circumstances
and instructions in this case, that the jury did convict Babb
based on the valid felony murder theory and that the
premeditation instruction did not have a substantial impact on
the jury’s decision.

    Babb raised other claims in her petition which were not
addressed by the district court. We thus remand the case to
give the district court the opportunity to consider these
claims.

    REVERSED and REMANDED.




error was harmless, and employing such a standard is tantamount to
determining that all instructional errors occurring in the context of a
general verdict are structural errors. 555 U.S. at 62.
