                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROGER M. CHAMBERS,                               No. 07-15773
            Petitioner-Appellant,                   D.C. No.
               v.                               CV-04-073-RCJ-
E.K. MCDANIEL,                                        VPC
            Respondent-Appellee.
                                                  OPINION

         Appeal from the United States District Court
                  for the District of Nevada
          Robert C. Jones, District Judge, Presiding

                    Argued and Submitted
           June 10, 2008—San Francisco, California

                     Filed December 9, 2008

      Before: J. Clifford Wallace and Susan P. Graber,
    Circuit Judges, and Robert J. Timlin,* District Judge.

                    Opinion by Judge Timlin;
                    Dissent by Judge Wallace




  *The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.

                                16143
                    CHAMBERS v. MCDANIEL                  16147
                          COUNSEL

Linda Marie Bell, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.

Robert E. Wieland, Senior Deputy Attorney General, Crimi-
nal Justice Division, Reno, Nevada, for the respondent-
appellee.


                          OPINION

TIMLIN, District Judge:

   Roger Chambers appeals the district court’s denial of his
second amended petition for habeas corpus, under 28 U.S.C.
§ 2254, challenging his conviction for murder in the first
degree and his sentence of two consecutive sentences of life
without the possibility of parole by a Nevada state trial court.
We have jurisdiction pursuant to 28 U.S.C. § 2253. We hold
that Chambers’ federal constitutional right to due process was
violated because the instructions given at his trial permitted
the jury to convict him of first-degree murder without a find-
ing of the essential element of deliberation. The error was not
harmless. Accordingly, we reverse and remand to the district
court to grant the writ unless the State elects to retry Cham-
bers within a reasonable time.

                      BACKGROUND

A.   Factual Background

   In 1994, Chambers was convicted of first degree murder
with the use of a deadly weapon by a jury in a Nevada state
trial court, and Chambers was sentenced to death.

  The charges and conviction arose out of an altercation
between Chambers, a chef by profession, and Henry Chacon
16148               CHAMBERS v. MCDANIEL
on September 28, 1993. Chambers met Chacon while travel-
ing by bus from San Francisco to Reno. While on the bus,
Chambers and Chacon became acquainted and ingested alco-
hol and cocaine together. Upon arriving in Reno, they rented
a hotel room to share in the Circus Circus casino and hotel.
Chambers and Chacon went to the room together, but Cham-
bers subsequently went downstairs and played poker. When
he returned to the room, he found Chacon burning heroin to
smoke on Chamber’s set of professional chef knives. When
Chambers saw this, he became angry, and the two began to
fight. According to Chambers, Chacon initially stabbed
Chambers with a knife, but Chambers got the knife away
from Chacon. A struggle ensued, which resulted in Chacon’s
death.

   The morning after the fight, Chambers went to the Washoe
Medical Center. When asked why he was there, Chambers
responded, “There’s a dead body in the room.” He then stated
that he did not mean to do it. Hospital staff checked Chambers
into the hospital, noting that he appeared to be intoxicated, as
he was unsteady and his speech was rapid and disjointed. A
nurse administered a breathalyzer test, which showed a blood
alcohol level of 0.27.

   The police arrived to interview Chambers, who admitted
that he had killed someone and that the victim was in the
bathtub. Chambers told the police officers how he and Chacon
had met, and stated that he had got angry when he saw Cha-
con cooking heroin on one of the knives he used in his profes-
sion. Chambers asserted that Chacon had stabbed him first,
and that he wrestled the knife away from Chacon and stabbed
him back several times. He repeatedly told the police officers
that he stabbed Chacon in self-defense.

  Based on Chambers’ statement, the police went to Circus
Circus where they discovered Chacon’s body in the hotel
room’s bathtub. In the bathroom, they also located a black
canvas bag with several pockets holding knives and other
                    CHAMBERS v. MCDANIEL                 16149
kitchen utensils. Also next to the sink the police found two
knives, with sooty deposit on the blades suggesting that they
were used to smoke heroin.

   Police subsequently took Chambers into custody, and he
was transported to the Reno Police Department. Chambers
was read his Miranda rights, which he waived. A drug recog-
nition expert examined Chambers and concluded that he was
under the influence of a central nervous system stimulant.
After this determination, the officers questioned Chambers
again for four hours, with a video camera recording the inter-
view. After Chambers was booked, blood and urine samples
were obtained. The urine sample contained amphetamine,
methamphetamine, a trace of morphine, and marijuana metab-
olites. No narcotics were found in his blood.

  At trial, the results of the autopsy of Chacon were pre-
sented into evidence. The coroner testified that Chacon had
seventeen stab wounds, most of which were superficial. How-
ever, two stab wounds were significant: one into the front
chest that passed through the lung and the sack covering the
heart, and the second in the back that also passed into the
chest and into a lung, causing the collapse of the lung.

   A jury found Chambers guilty of first-degree murder and
also found two aggravating circumstances warranting a death
sentence. Chambers was sentenced to death.

B.   Procedural Background

   Chambers appealed his conviction to the Nevada Supreme
Court, challenging the reasonable doubt jury instruction, the
admission of certain evidence, and the court’s failure to prop-
erly admonish the jury. He also argued that the death penalty
was excessive and should be set aside. The Nevada Supreme
Court affirmed the conviction, but set aside the death penalty,
directing the imposition of a life sentence without the possi-
bility of parole. Following a petition for writ of mandamus by
16150                CHAMBERS v. MCDANIEL
the State arguing that the appropriate sentence was two life
sentences without the possibility of parole, the Nevada
Supreme Court granted the writ, and Chambers was resen-
tenced to serve two consecutive life terms without the possi-
bility of parole.

   Chambers then filed a petition styled as a “Notice of
Appeal; Writ of Habeas Corpus/Post-Conviction Petition” in
the Nevada state trial court. The court dismissed the petition,
but upon appeal the Nevada Supreme Court reversed the dis-
missal, finding that the trial court improperly construed this
document as a habeas corpus petition, when it was simply a
notice of Chambers’ future intent to file a habeas petition.

   During this time, Chambers filed in the state trial court a
habeas corpus petition asserting sixteen detailed claims for
relief. After the court appointed counsel to proceed with the
petition, an additional claim was added to the petition. The
state trial court denied the petition on April 18, 2000. Cham-
bers appealed, and the Nevada Supreme Court affirmed the
denial of Chambers’ petition on July 12, 2001.

   On July 27, 2001, Chambers filed a habeas corpus petition
in federal district court. After the Federal Public Defender
was appointed, Chambers filed a first amended petition alleg-
ing ten grounds for relief. The government filed a motion to
dismiss, contending that Chambers had failed to exhaust his
state court remedies as to five grounds for relief asserted by
Chambers. The district court granted the motion to dismiss in
part, finding four grounds for relief had not been exhausted,
including Ground One of the Petition challenging the state
court’s jury instruction on premeditation and deliberation as
a violation of his constitutional right to due process.

  In its Order, the federal district court gave Chambers the
option of abandoning the unexhausted grounds and proceed-
ing on those which remained, or voluntarily dismissing the
entire petition to return to state court to exhaust his state rem-
                    CHAMBERS v. MCDANIEL                  16151
edies for the unexhausted grounds for relief. Chambers chose
to return to state court, and on November 3, 2003, the district
court ordered the case dismissed without prejudice and stated
that Chambers could return to the district court and move to
reopen the action once he had exhausted his state court reme-
dies with respect to the unexhausted claims.

   On November 12, 2003, Chambers filed a Petition for
Extraordinary Writ with the Nevada Supreme Court, alleging
the four unexhausted grounds for relief. On December 3,
2003, the Nevada Supreme Court denied the petition, stating
that “[w]e have considered the petition on file herein, and we
are not satisfied that this court’s intervention by way of
extraordinary relief is warranted at this time.”

   After Chambers’ case was reopened in federal district
court, Chambers refiled his second amended habeas petition
(“petition”) on March 22, 2004. The State filed a motion to
dismiss arguing that Chambers had failed to properly exhaust
his state remedies when he filed the Petition for Extraordinary
Writ in Nevada Supreme Court, and the district court denied
that motion.

  On December 13, 2006, after the State had answered
Chambers’ petition, the district court denied the petition.
Chambers filed this timely appeal.

                       EXHAUSTION

   The State first argues that Chambers’ constitutional due
process claim concerning the jury instruction on premedita-
tion given at his trial is not properly brought to federal court
because Chambers failed to exhaust his state remedies as to
that claim. We review de novo whether a petitioner has
exhausted state remedies. Greene v. Lambert, 288 F.3d 1081,
1086 (9th Cir. 2002).

   [1] A state prisoner must exhaust a federal constitutional
claim in state court before a federal court may consider a
16152                CHAMBERS v. MCDANIEL
claim. 28 U.S.C. § 2254(b)(1)(A), (c). The exhaustion
requirement, first enunciated in Ex parte Royall, 117 U.S. 241
(1886), and subsequently codified in 28 U.S.C. § 2254, is
“grounded in principles of comity and reflects a desire to
‘protect the state courts’ role in the enforcement of federal
law.’ ” Castille v. Peoples, 489 U.S. 346, 349 (1989) (quoting
Rose v. Lundy, 455 U.S. 509, 518 (1982)). Pursuant to
§ 2254(c), exhaustion typically requires that “state prisoners
must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). However, “exhaustion
does not require repeated assertions if a federal claim is actu-
ally considered at least once on the merits by the highest state
court.” Greene, 288 F.3d at 1086 (citing Castille, 489 U.S. at
350).

   Here, Chambers did not invoke one complete round of
Nevada’s “established appellate review process” with regard
to his due process claim concerning the premeditation jury
instruction. He did raise the issue in his original habeas cor-
pus petition filed in state trial court but, as the district court
correctly found, he failed to identify the federal nature of the
claim when he appealed the lower court’s decision of denial
to the Nevada Supreme Court.

   [2] Subsequently, however, Chambers did raise his consti-
tutional due process claim concerning the premeditation jury
instruction in a Petition for Extraordinary Writ filed with the
Nevada Supreme Court on November 12, 2003. Therefore,
because Chambers did in fact bring his claim to the attention
of the highest state court, “[o]ur decision hinges on what hap-
pened to his [writ]. If the [Nevada] Supreme Court declined
to apply the procedural bar that was available to it and adjudi-
cated the claim on the merits, then the claim may proceed.”
Greene, 288 F.3d at 1086 (citing Castille, 489 U.S. at 351, as
recognizing exception where the state has actually passed on
the claim).
                    CHAMBERS v. MCDANIEL                   16153
   The Nevada Supreme Court decided Chambers’ Petition for
an Extraordinary Writ when it denied the petition. The court’s
order is brief, stating simply: “This is a proper petition for an
extraordinary writ. Petitioner challenges the validity of his
judgment of conviction and sentence. We have considered the
petition on file herein, and we are not satisfied that this
court’s intervention by way of extraordinary relief is war-
ranted at this time. Accordingly, we order the petition
denied.” A footnote to the order elaborates on the Nevada
Supreme Court’s rationale: “We have considered all proper
person documents filed or received in this matter, and we con-
clude that the relief requested is not warranted.” (emphasis
added).

   Article VI, section 4 of the Nevada Constitutions grants the
Nevada Supreme Court original jurisdiction to issue writs. See
Nev. Const. Art. VI, § 4 (“The [Nevada Supreme Court] shall
also have power to issue writs of mandamus . . . and habeas
corpus and also all writs necessary or proper to the complete
exercise of its appellate jurisdiction.”); see Blair v. Crawford,
275 F.3d 1156, 1158 (9th Cir. 2002). The Nevada Supreme
Court issues writ relief only “at the discretion of th[e] court,”
and the petitioner carries the burden of demonstrating that
extraordinary relief is warranted. See State v. Eighth Judicial
Dist. Court, 42 P.3d 233, 237 (Nev. 2002) (per curiam); Pan
v. Eighth Judicial Dist. Court, 88 P.3d 840, 844 (Nev. 2004)
(per curiam). Because Chambers’ federal claim regarding the
premeditation jury instruction was raised for the first time in
this discretionary context, the Nevada Supreme Court would
have been within its discretion to dismiss the petition on the
procedural grounds that it should have been filed in the dis-
trict court or to deny it without comment.

   Had the Nevada Supreme Court denied the petition without
opinion, that denial would have brought Chambers’ claim
within the reach of the Supreme Court’s holding in Castille,
489 U.S. at 351, that exhaustion is not satisfied “where the
claim has been presented for the first and only time in a pro-
16154               CHAMBERS v. MCDANIEL
cedural context in which its merits will not be considered
unless there are special and important reasons therefor.”
(Internal quotation marks omitted); see also Casey v. Moore,
386 F.3d 896, 916 (9th Cir. 2004). However, Castille does not
address the question presented here, as Castille involved only
a state court’s rejection without comment of a new claim in
an extraordinary motion and does not tell us what to do when
a court has in fact spoken on the issue.

   [3] Here, the Nevada Supreme Court did not deny without
comment or opinion. Instead, the court issued an order stating
that it had “considered the petition on file” and that its inter-
vention “by way of extraordinary relief” was not warranted at
this time. Importantly, the court reiterated in the footnote that
it “had considered” all the documents filed and received in the
matter, and that it “concluded that the relief requested is not
warranted.” Pursuant to our reasoning in Greene, we must
therefore decide if the Nevada Supreme Court reached the
merits of Chambers’ claim or decided the petition on proce-
dural grounds only. Whether Chambers’ due process claim is
exhausted turns on the outcome of this inquiry.

   [4] A fair and plausible reading of the Nevada Supreme
Court’s order of denial is that the court considered the merits
of Chambers’ claim, but was not persuaded as to its validity.
The court did not state that it would not consider the claim,
but rather that it would not “intervene.” In fact, in the foot-
note, the court explicitly stated that it had considered all the
documents filed with the court, and that it had reached the
conclusion that relief was not warranted. The most logical
reading of this sparse text is that the court considered the
arguments of the parties and the documentation filed by them
and came to a conclusion about their merits. For a court to
consider all the materials filed in conjunction with a petition
for a writ and to then “conclude” that relief is not warranted
strongly suggests that such a “conclusion” is on the merits.
This order “cannot be fairly characterized as merely proce-
dural. The court understood the nature of the claim and took
                    CHAMBERS v. MCDANIEL                 16155
pains to respond to it, albeit curtly and ambiguously.” Greene,
288 F.3d at 1087.

   Even if this order is curt and ambiguous, we have previ-
ously addressed how to resolve an ambiguity of this kind. See
id.; see Harris v. Superior Court, 500 F.2d 1124, 1128-29
(9th Cir. 1974) (en banc). As further elucidated in our opinion
in Greene, the reasoning in Harris guides the resolution of
such ambiguity:

    Harris involved a so-called “postcard denial” from
    the California Supreme Court. We held in that case
    that the state court’s denial of a habeas petition on
    procedural grounds did not exhaust state remedies,
    but (citing Brown, 344 U.S. at 449 n.3, 73 S.Ct. 397)
    that the state court’s denial of a habeas petition on
    the merits did exhaust state remedies. Harris, 500
    F.2d at 1128-29. We construed a bare postcard
    denial from the California Supreme Court as a deci-
    sion on the merits, for purposes of the exhaustion
    requirement, unless that court expressly relied on a
    procedural bar. Id. In other words, although the
    state supreme court’s response was ambiguous, we
    adopted a plausible construction that it acted on the
    merits of a claim presented to it. We have not over-
    ruled Harris.

Greene, 288 F.3d at 1087 (emphasis added; footnote omitted);
see also Hunter v. Aispuro, 982 F.2d 344, 347-48 & n.2 (9th
Cir. 1992).

   [5] Therefore, unless a court expressly (not implicitly)
states that it is relying upon a procedural bar, we must con-
strue an ambiguous state court response as acting on the mer-
its of a claim, if such a construction is plausible. A
comparison of the language in Harris — which was found to
be a decision on the merits by the California Supreme Court
— to the language used by the Nevada Supreme Court in the
16156               CHAMBERS v. MCDANIEL
instant case is instructive. In Harris, the “postcard denial”
found to be a decision on the merits merely stated “Petition
for Writ of Habeas Corpus denied.” We noted in Harris that,
in cases where the California Supreme Court relied upon pro-
cedural deficiencies as a basis for denying the petition, the
court often included after the language of denial a “citation of
an authority which indicates that the petition was procedurally
deficient.” 500 F.2d at 1128. However, where the California
Supreme Court includes no citation and simply states that the
petition is denied, that absence of a citation coupled with the
cursory statement denying the petition satisfies the exhaustion
requirement.

   [6] In this case, even more than in Harris, it is appropriate
to construe the state court’s order of denial as having been
made on the merits. The Nevada Supreme Court here did
more than issue a postcard denial. It stated in its order that it
had “considered” all the materials filed by the parties, which
indicates that it not only read the materials, but ruminated as
to their merits. Then, the court stated it had “concluded” that
intervention was not necessary. A conclusion that intervention
is not necessary based on a consideration of all the documents
filed is not a decision based on a procedural irregularity, but
rather a decision on the merits.

   The Ninth Circuit’s analysis of another order denying a
petition for a writ of habeas corpus by the Nevada Supreme
Court is also instructive in construing the instant order. In
Alexander v. Fogliani, 375 F.2d 733, 735 (9th Cir. 1967), the
Ninth Circuit found a denial of a writ of habeas corpus peti-
tion filed directly with the Nevada Supreme Court to be
“clearly on the merits” and therefore also held that the peti-
tioner had exhausted his state court remedies based on the fol-
lowing language by the Nevada Supreme Court: “The court
has read the petition for release on habeas corpus and finds
from the face of the petition and attached documents that peti-
tioner’s present confinement is in all respects legal. Therefore,
it is ordered that the petition for habeas corpus be and the
                     CHAMBERS v. MCDANIEL                    16157
same and is denied.” Two similarities exist in the Nevada
Supreme Court’s orders in the instant case and in Alexander:
1) in both, the court acknowledges that it has read and consid-
ered the petition and all the other materials filed by the par-
ties, and 2) after such consideration, the courts find that relief
is not warranted based on the petitioner’s arguments. Again,
both orders may be ambiguous, but pursuant to Harris, we
must ascertain whether a plausible construction exists that
these were decisions on the merits. In both cases, they do. See
also Blair v. Crawford, 275 F.3d 1156, 1158 (9th Cir. 2002)
(holding, in the context of a discussion about AEDPA statute
of limitations, that a Nevada Supreme Court’s use of similar
language as in the instant case indicated that the court “con-
strued and denied Blair’s petition”).

   Finally, the language used by the Nevada Supreme Court
in other cases involving petitions for extraordinary writs is
illuminating. In Hosier v. State, 117 P.3d 212, 213 (Nev.
2005) (per curiam), a decision filed two years after Chambers’
petition for an extraordinary writ was denied, the Nevada
Supreme Court held that “[a]lthough this court retains original
jurisdiction to issue writs, this court will not exercise its origi-
nal jurisdiction to consider a writ petition in a criminal case
raising claims that could or should have been raised in an
appeal or in an appropriate post-conviction proceeding in the
district court.” The court then concludes: “we decline to exer-
cise this court’s original jurisdiction to consider this original
petition challenging the validity of the judgment of convic-
tion.” Id. What is clear from Hosier is that the Nevada
Supreme Court is capable of clearly and unambiguously deny-
ing a petition for an extraordinary writ on procedural grounds
and that, when it does so, the court will state that it “decline[s]
to exercise its original jurisdiction to consider” the petition.

   Here, the Nevada Supreme Court did not “decline to exer-
cise its original jurisdiction to consider the petition.” Rather,
unlike in Hosier, the Nevada Supreme Court stated that it did
in fact consider the petition and all other filed documents and
16158               CHAMBERS v. MCDANIEL
that it reached a conclusion based on that consideration. The
contrast makes clear that the denial order in this case should
be construed as a decision on the merits.

   Further, Hosier’s discussion of policy reasons for denying
the petition in that case on procedural grounds rather than rul-
ing on the merits actually weighs in favor of construing the
Nevada Supreme Court’s order here as on the merits. The
Nevada Supreme Court points out in Hosier that “[o]riginal
petitions are not accompanied by a complete record on appeal.
Thus, this court’s ability to review claims challenging the
judgment of conviction is seriously limited.” Id. at 213. Fur-
ther, the Nevada Supreme Court’s appellate jurisdiction is
limited to questions of law alone, and its “consideration of
many petitions of this type would require this court to exceed
its appellate jurisdiction because the claims presented often
require evidentiary and factual determination.” Id.

   Here, the question presented in this petition, whether the
premeditation jury instruction given at Chambers’ trial vio-
lated his due process rights, is one of law. No factual determi-
nations are necessary. Furthermore, the Nevada Supreme
Court had all the materials it would have needed to consider
this constitutional claim and reach a conclusion on the merits,
as Chambers included the jury instruction at issue in the case.
Therefore, the reasons that Hosier offers for declining to
reach the merits of these petitions are not in play here.

  [7] In summary, we conclude that the Nevada Supreme
Court’s order denying Chambers’ petition for extraordinary
writ was made on the merits and that such denial satisfied the
exhaustion requirement.

                  DUE PROCESS CLAIM

   [8] On the merits, Chambers contends that the state court’s
rejection of his due process argument about the jury instruc-
tion on premeditation given at his trial “resulted in a decision
                     CHAMBERS v. MCDANIEL                    16159
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)(1).
In Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007), we
held that the same jury instruction on premeditation at issue
here was constitutionally defective, and the Nevada court’s
failure to correct the error “was contrary to clearly established
federal law, as determined by the Supreme Court.” As the par-
ties acknowledge, we are bound by Polk.1 See Miller v. Gam-
mie, 335 F.3d 889, 900 (9th Cir. 2003)(en banc)(holding that,
unless a case is overruled or becomes clearly irreconcilable
with a Supreme Court holding, a three-judge panel is bound
by the decisions of previous three-judge panels).

   [9] As we did in Polk, we look here at “whether the ailing
instruction by itself so infected the entire trial that the result-
ing conviction violates due process . . . [T]he instruction . . .
must be considered in the context of the instructions as a
whole and the trial record.” See Estelle v. McGuire, 502 U.S.
62, 72 (1991) (citations and internal quotation marks omitted).
Other instructions given at Chambers’ trial compounded the
error. For example, Instruction No. 26 provided that “[t]he
nature and extent of the injuries, coupled with repeated blows,
may constitute evidence of willfulness, premeditation, and
deliberation.” In this instruction, the three separate elements
are collapsed into one. Instruction No. 22 further confuses the
issue, when it defines second-degree murder as “all other
kinds of murder” and contains no discussion of the lesser
intent requirement for second-degree murder.

   [10] Finally, just as in Polk, the State exacerbated the prob-
lem in its closing rebuttal argument by emphasizing the pre-
meditation instruction, as support for its argument that the
jury should find first-degree murder: “Premeditation can be
successive, instantaneous thoughts of the mind. Doesn’t
  1
   We therefore do not address Respondent’s arguments that “Polk was
erroneously decided.”
16160                  CHAMBERS v. MCDANIEL
require it to be planned. Premeditation is pulling the knife,
lifting your arm, and stabbing. Instantaneous thoughts of the
mind to control movement. That’s all you need for premedita-
tion. You read the law. That’s what it tells you.”

   [11] The State argues that the second-degree murder and
manslaughter instructions given in this case specified the cor-
rect definitions and therefore the jury would have relied on
those to clear up any confusion created by the instruction on
premeditation. It belies common sense, however, to believe
that a jury could have ascertained the correct standard for
first-degree murder from a jury instruction for second-degree
murder, when the actual instruction for first-degree murder is
defective. Moreover, a review of the jury instructions shows
that the jury was never instructed as to what the elements of
second-degree murder were, but only defined it as “all other
kinds of murder.” Such an instruction would not assist the
jury in ascertaining what the different levels of intent were for
first- and second-degree murder. Therefore, we find that the
instruction infected the entire trial so that the conviction of
Chambers violated due process.

   [12] Our inquiry does not end here. Even though a constitu-
tional error occurred, Chambers is not entitled to relief unless
he can show that “the error had substantial and injurious
effect or influence in determining the jury’s verdict.”2 Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). “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). The entire case here focused on Cham-
bers’ state of mind when he got into an altercation with Cha-
con and stabbed him seventeen times. The fact that Chambers
  2
    We are aware that the Supreme Court has granted certiorari in a recent
Ninth Circuit case concerning instructional error, Pulido v. Chrones, 487
F.3d 669 (9th Cir. 2007), cert. granted, 128 S.Ct. 1444 (2008). However,
we do not believe that the outcome of Pulido would affect the analysis of
instructional error in Chambers’ case.
                    CHAMBERS v. MCDANIEL                  16161
had killed Chacon by stabbing him was not an issue; instead,
Chambers was arguing that he acted in self-defense, while the
State was arguing that there was sufficient evidence to show
premeditation. The prosecutor emphasized the instruction in
its closing argument to demonstrate premeditation. Therefore,
the error here did not affect a minor issue at trial, but rather
went to the very heart of the case.

   [13] Further, “[t]he evidence against [Chambers] was not
so great that it precluded a verdict of second-degree murder.
The State’s evidence on deliberation was particularly weak.”
Polk, 503 F.3d at 912. The State cites three pieces of evidence
to support the finding of premeditation: that Chambers
stabbed Chacon seventeen times; that the wounds penetrated
three inches into the body and were located in two separate
clusters of wounds; and that Chambers was not mentally dis-
turbed, but at the most merely drunk. However, this evidence
does not demonstrate the key feature of the element of delib-
eration: that of a “dispassionate weighing process and consid-
eration of consequences before acting.” Byford, 994 P.2d at
714. Although “[a] deliberate determination may be arrived at
in a short period of time, . . . 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.” Id.

   [14] If anything, the evidence presented at trial seems to
weigh in favor of second-degree murder committed while in
the throes of a heated argument. The Nevada Supreme Court’s
summary of the facts in Chambers’ trial amply demonstrates
the weak state of the evidence of deliberation: “Chambers
murdered the victim in a drunken state, which indicated no
advanced planning, during an emotionally charged confronta-
tion in which Chambers was wounded and his professional
tools were being ruined.” Dennis v. State, 13 P.3d 434, 441
(Nev. 2000). In light of the weak evidence of deliberation, we
simply cannot conclude that the instructional error was harm-
less. “Since we are left ‘in grave doubt’ about whether the
16162                 CHAMBERS v. MCDANIEL
jury would have found deliberation on [Chambers’] 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.” Polk, 503 F.3d at 913.

                         CONCLUSION

   Chambers’ federal constitutional due process right was vio-
lated by the instructions given by the trial court at his murder
trial, as they permitted the jury to convict him of first-degree
murder without finding separately all three elements of that
crime: willfulness, deliberation, and premeditation. The error
was not harmless. The Nevada Supreme Court’s decision
denying Chambers’ petition for an extraordinary writ and
rejecting his due process claim was contrary to clearly estab-
lished federal law. Thus, we reverse and remand to the district
court with instructions to grant the writ of habeas corpus and
order the State of Nevada to release Chambers, unless the
State elects to retry Chambers within a reasonable amount of
time.3

  REVERSED AND REMANDED.



WALLACE, Circuit Judge, dissenting:

   I respectfully dissent from the majority’s conclusion that
Chambers exhausted his state court remedies. Therefore, I
would deny Chambers’ petition for writ of habeas corpus and
would remand to the district court to direct the petitioner to
file his claims in the Nevada state courts.

  The majority correctly sets forth that, pursuant to 28 U.S.C.
  3
    Chambers raised other issues on appeal. In light of our decision to
reverse based on the due process violation, we decline to reach those
issues.
                     CHAMBERS v. MCDANIEL                  16163
§ 2254(b)(1), a state prisoner must exhaust remedies available
in state courts before a federal court may consider a claim.
Exhaustion typically requires that “state prisoners . . . give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s estab-
lished appellate review process.” O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). The exhaustion doctrine is satisfied
“[i]f a petitioner presents his claim to the highest state court
and that court disposes of the claim on the merits.” Hayes v.
Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986). In this case,
neither exhaustion requirement was satisfied.

   First, Chambers did not fairly present his habeas claim
challenging the jury instruction on premeditation and deliber-
ation to the Nevada Supreme Court. As we summarized in
Roettgen v. Copeland, “submitting a new claim to the state’s
highest court in a procedural context in which its merits will
not be considered absent special circumstances does not con-
stitute fair presentation.” 33 F.3d 36, 38 (9th Cir. 1994). Here,
Chambers raised his jury instructions claim for the first time
in state court in a petition for extraordinary writ to the Nevada
Supreme Court. Extraordinary writs are a form of discretion-
ary relief, and only granted in special circumstances. See
Gumm v. Nev. Dep’t of Educ., 113 P.3d 853, 856 (Nev. 2005)
(“[An] extraordinary writ will issue only when the right to the
relief requested is clear and the petitioners have no plain,
speedy and adequate remedy in the ordinary course of law”).
Thus, Chambers did not fairly present his habeas claim to the
state’s highest court.

   Second, the Nevada Supreme Court’s order denying Cham-
bers’ petition for extraordinary writ did not dispose of his jury
instructions claim on the merits. As described above, the
Nevada Supreme Court may exercise its discretion to issue
extraordinary writs only where the petitioner has “no plain,
speedy and adequate remedy in the ordinary course of law.”
Id. In this case, Chambers had a plain, speedy and adequate
remedy: to follow the statutory procedures of filing an
16164               CHAMBERS v. MCDANIEL
amended writ of habeas corpus, stating federal constitutional
claims, in the state trial court, and then appealing any denial
to the Nevada Supreme Court. The Nevada Supreme Court
was thus not required to consider the merits of Chambers’
claim. Indeed, it would be surprising if the court had consid-
ered the merits, given that the traditional method of filing a
writ of habeas corpus provided adequate relief. Thus, not sur-
prisingly, the language of the order denying the petition for
extraordinary writ does not state that the Nevada Supreme
Court considered the merits of Chambers’ jury instruction
claim.

   This, of course, is where I part with the majority. No words
in the order suggest that the Nevada Supreme Court decided
the case on the merits; in fact, some language in the order
suggests the opposite. Certainly the statement that the court
“considered the petition” does not indicate that the court
declined to issue the extraordinary writ on the merits of the
constitutional claims. It is fair to assume that the Nevada
Supreme Court carries out its judicial duty and considers each
petition that comes before it. That is, the court reads the peti-
tion and evaluates whether it should exercise its discretion to
issue the writ in cases where petitioners have no “plain,
speedy and adequate remedy in the ordinary course of law.”
Clearly, the words “considered the petition” alone do not indi-
cate that the court evaluated the merits of petitioner’s claim.

   Similarly, the majority construes the court’s use of the
word “conclude” in its statement that extraordinary relief was
not warranted as strongly suggesting that the court made its
conclusion on the merits. That is too great of a jump for me.
A more plausible reading is that the Nevada Supreme Court
concluded that extraordinary relief was not warranted because
petitioner could file an amended petition for writ of habeas
corpus and follow traditional appellate procedures to bring the
merits of the claim before the court. The language of the order
supports this view. The order reads “we are not satisfied that
this court’s intervention by way of extraordinary relief is war-
                    CHAMBERS v. MCDANIEL                   16165
ranted at this time.” (emphasis added). Is not this the key?
The court’s statement that intervention was not “warranted at
[that] time” leaves open the possibility that the court could
grant relief at a later time, for example, after an appeal of a
denial of a writ of habeas corpus from the state trial court. If
the court had decided to deny the writ on the merits, there
would be no reason to leave open the option of relief on those
merits at a future date.

   The majority acknowledges that had the Nevada Supreme
Court denied the petition without opinion, Castille v. Peoples
would control and the claims presented for the first time to the
Nevada Supreme Court would not be exhausted. 489 U.S.
346, 351 (1989). The only distinction between the instant case
and Castille is the Nevada Supreme Court’s statement that
“[w]e have considered the petition . . . , and we are not satis-
fied that this court’s intervention by way of extraordinary
relief is warranted at this time,” along with a footnote indicat-
ing that the court had considered all the documents filed.

   Relying on Greene v. Lambert, the majority construes the
Nevada Supreme Court’s cursory statement as a decision on
the merits of Chambers’ claim, even though the circumstances
of Greene differ significantly from those of the instant case.
288 F.3d 1081, 1086-88 (9th Cir. 2002). In Greene, the Wash-
ington Supreme Court amended its opinion denying a peti-
tioner’s state habeas petition to address a federal
constitutional claim raised for the first time in a motion to
reconsider. Id. at 1085. In the amended opinion, the Washing-
ton Supreme Court stated that it did not have to reach the
issue raised because it could decide the case on narrower
grounds. Id. We recognized that “the Washington Supreme
Court would have been within its discretion simply to deny
the motion or to dismiss it without comment,” instead of
amending the opinion to address the motion. Id. at 1087. Con-
sequently, we were free to engage in analyzing the “cryptic”
amendment to the opinion and conclude that the state court’s
decision was made on the merits. Id. We were ultimately per-
16166               CHAMBERS v. MCDANIEL
suaded that the exhaustion requirement had been met because
the state court’s decision could not “be fairly characterized as
merely procedural. The court understood the nature of the
claim and took pains to respond to it, albeit curtly and ambig-
uously.” Id.

   Unlike Greene, the Nevada Supreme Court in this case did
no more than to deny the petition and to issue a summary
statement regarding the denial. There is no fair way to con-
strue the state court’s decision as having been made on the
merits. The most natural characterization of the Nevada
Supreme Court’s dismissal of the claim is that it did so on
procedural grounds, given that the court explicitly held that
the situation did not warrant intervention by way of extraordi-
nary relief. Additionally, nothing in the court’s decision gives
any indication of the “nature of the claim,” and the court’s
decision does not suggest that the court “took pains to respond
to [the claim].” Id. The court merely issued a short statement
denying the petition.

   The majority relies on the rule in Harris v. Superior Court
that unless a court expressly states that it is relying upon a
procedural bar, ambiguous responses should be construed to
mean that the court acted on the merits of a claim, if such a
construction is possible. 500 F.2d 1124, 1128-29 (1974). But
a critical distinction between Harris and the instant case is
apparent: Harris was an appeal from a denial of a writ of
habeas corpus; this case is an appeal from a denial of an
extraordinary writ. As explained above, the Nevada Supreme
Court is not even permitted to exercise its discretion to issue
an extraordinary writ except in special circumstances, as
where there is no other speedy and adequate relief. The rule
announced in Harris thus does not apply to this case.

   Similar reasoning distinguishes Alexander v. Fogliani, 375
F.2d 733, 735 (9th Cir. 1967). As in Harris, the habeas claim
in Alexander came to this court as an appeal from a denial of
a writ of habeas corpus, and not a denial of extraordinary
                    CHAMBERS v. MCDANIEL                   16167
relief. Id. Moreover, the language of the Nevada Supreme
Court’s denial of relief in Alexander clearly evinced a disposi-
tion on the merits. As the majority recounts, the Nevada
Supreme Court’s order in that case stated that “the petitioner’s
present confinement is in all respects legal.” Id. No such dis-
cussion of the merits is present in the order denying the
extraordinary writ in this case.

   Finally, the majority cites Hosier v. State for the proposi-
tion that the Nevada Supreme Court is “capable of clearly and
unambiguously denying a petition for an extraordinary writ on
procedural grounds,” and that the ambiguous language in this
case must therefore be construed as a disposition on the mer-
its. 117 P.3d 212, 213 (Nev. 2005) (per curiam). But the
Nevada Supreme Court is equally capable of clearly and
unambiguously indicating that is denial of an extraordinary
writ petition is on the merits. In Hickey v. Eighth Judicial Dis-
trict Court, the court explicitly stated that it would “exercise
[its] discretion to entertain the merits of the petition,” and
then proceeded to deny the petition. 782 P.2d 1336, 1338
(Nev. 1989). Why then should we construe the ambiguity in
this case as a merits denial, as the majority advocates? We
should not. Given that extraordinary writs are issued only in
special circumstances, I believe the most logical interpretation
of the Nevada Supreme Court’s curt order is a denial on pro-
cedural, rather than substantive grounds.

   While the history of Chambers’ appeals process has been
long and complex, the federal court should not shortchange
the state’s opportunity to evaluate all claims on their merits.
We do not respect the state court system when we construe an
order denying an extraordinary writ (where the court is only
expected to review cases on the merits where extraordinary
relief is necessary) as being a decision on the merits. The
Nevada court system must have the full opportunity to
address the merits of Chambers’ federal constitutional claims,
and the order denying the extraordinary writ does not indicate
that the Nevada Supreme Court has done so. There is, of
16168               CHAMBERS v. MCDANIEL
course, a virtue in bringing litigation to a conclusion as soon
as reasonably possible. But our system of federalism requires
that state courts rule on the merits first — especially when a
state crime involving a state-convicted criminal defendant is
challenged in a habeas corpus proceeding. Therefore, I
respectfully dissent.
