               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RYAN OSHUN MOORE,                        No. 12-15795
             Petitioner-Appellee,
                                            DC No.
                v.                       3:05 cv-0348
                                          KJD-VPC
DON HELLING; NEVADA ATTORNEY
GENERAL,
          Respondents-Appellants.         OPINION


     Appeal from the United States District Court
              for the District of Nevada
      Kent J. Dawson, District Judge, Presiding

                Argued and Submitted
      March 14, 2014—San Francisco, California

   Memorandum Disposition Filed: March 24, 2014
        Petition for Rehearing Granted and
  Memorandum Disposition Withdrawn: July 3, 2014
          Opinion Filed August 15, 2014

      Before: Jerome Farris, A. Wallace Tashima,
      and M. Margaret McKeown, Circuit Judges.

              Opinion by Judge Tashima
2                       MOORE V. HELLING

                           SUMMARY*


                         Habeas Corpus

    The panel reversed the district court’s grant of Ray Oshun
Moore’s habeas corpus petition challenging his Nevada
conviction of first degree murder, and remanded with
directions to enter judgment for the state, in a case in which
the trial court gave a “Kazalyn instruction,” which did not
separately define the terms “willful,” “deliberate,” and
“premeditated.”

     After Moore was convicted, but before his conviction
became final, the Nevada Supreme Court in Byford v. State,
994 P.2d 700, 713-15 (Nev. 2000), invalidated the Kazalyn
instruction and replaced it with an instruction separately
defining “willful,” “deliberate,” and “premeditated.” The
Nevada Supreme Court subsequently determined that Byford
represented a change in Nevada law and was applicable to
cases pending on direct appeal when Byford was decided. In
Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), which
involved a habeas claim by a petitioner who was convicted of
first degree murder under the Kazalyn instruction and whose
conviction was not final when Byford was decided, this court
held that the Nevada state court’s failure to apply the new
Byford instruction was an unreasonable application of clearly
established federal law under 28 U.S.C. § 2254(d)(1). After
this court filed a Memorandum Disposition affirming the
grant of Moore’s petition in substantial reliance on Babb, the
Supreme Court decided White v. Woodall, 134 S. Ct. 1697

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

(2014), which clarified § 2254(d)(1)’s “unreasonable
application” clause.

    The panel held that Woodall’s clarification of the
unreasonable-refusal-to-extend rule is “clearly irreconcilable”
with Babb’s conclusion that the Nevada Supreme Court
unreasonably applied Supreme Court precedent by failing to
apply a change in state law to Babb’s pending conviction, and
that Woodall thus effectively overruled Babb with respect to
petitioners for whom, like Babb, the relevant state court
decision pre-dated Bunkley v. Florida, 538 U.S. 835 (2003)
(directing the lower court to determine whether a potentially
exonerating change in state law had occurred before the
defendant’s conviction became final, and holding that the
state court was required to apply that change to the
defendant’s conviction if it found in the affirmative).

    Under Woodall, the panel concluded that the state court
did not unreasonably apply clearly established federal law in
denying Moore’s Byford claim, and for that reason reversed
the district court’s grant of Moore’s petition.


                         COUNSEL

Catherine Cortez Mastro, Attorney General of Nevada,
Robert E. Wieland (argued), Senior Deputy Attorney General,
Reno, Nevada, for Respondents-Appellants.

Rene L. Valladares, Federal Public Defender, Debra A.
Bookout and Ryan Norwood (argued), Assistant Federal
Public Defenders, Las Vegas, Nevada, for Petitioner-
Appellee.
4                           MOORE V. HELLING

                                 OPINION

TASHIMA, Circuit Judge:

    Petitioner-Appellee Ryan Oshun Moore was convicted in
Nevada state court of first degree murder, defined in relevant
part as a “willful, deliberate and premeditated killing.” Nev.
Rev. Stat. § 200.030(1)(a) (2013), and other crimes. The trial
court gave the first degree murder instruction commonly used
in Nevada at the time, known as the “Kazalyn instruction,”1
which did not separately define the terms “willful,”
“deliberate,” and “premeditated.” In 2000, after Moore was
convicted, but before his conviction became final, the Nevada
Supreme Court invalidated the Kazalyn instruction and
replaced it with an instruction separately defining the terms
“willful,” “deliberate,” and “premeditated.” See Byford v.
State, 994 P.2d 700, 713–15 (Nev. 2000). The Nevada
Supreme Court subsequently determined that Byford
represented a change in Nevada law and was applicable to
cases pending on direct appeal when Byford was decided.
See Nika v. State, 198 P.3d 839, 859 (Nev. 2008) (citing
Byford, 994 P.2d at 713–15).

    Moore argued on direct appeal that his conviction was
invalid due to the trial court’s use of the Kazalyn instruction,
but his appeal was denied. Moore v. State, 27 P.3d 447, 450
n.16 (Nev. 2001). Moore then filed a petition for a writ of
habeas corpus in the U.S. District Court for the District of
Nevada, contending, among other things, that his due process
rights were violated by the trial court’s use of the Kazalyn
instruction. The district court granted Moore’s petition,
Moore v. Helling, 861 F. Supp. 2d 1195, 1207–08 (D. Nev.

    1
        Kazalyn v. State, 825 P.2d 578 (Nev. 1992).
                    MOORE V. HELLING                        5

2012), and Respondents-Appellants Don Helling, Warden,
and the Nevada Attorney General (the “State”) appealed.

     On March 24, 2014, we filed a Memorandum Disposition
affirming the district court’s grant of Moore’s petition.
Moore v. Helling, 2014 WL 1152588 (9th Cir. Mar. 24,
2014). In that disposition, we relied substantially on Babb v.
Lozowsky, 719 F.3d 1019 (9th Cir. 2013), which also
involved a habeas claim by a petitioner who was convicted of
first degree murder under the Kazalyn instruction and whose
conviction was not final when Byford was decided. Moore,
2014 WL 1152588, at *1 (citing Babb, 719 F.3d at 1032–33).
Babb held that the Nevada state court’s failure to apply the
new Byford instruction in such circumstances was an
unreasonable application of clearly established federal law
under 28 U.S.C. § 2254(d)(1). Babb, 719 F.3d at 1032–33.
We held in Moore, following Babb as controlling Circuit
authority, that the Nevada state court’s failure to apply the
new Byford instruction to Moore’s appeal was an
unreasonable application of clearly established federal law.
Moore, 2014 WL 1152588, at *1.

    On April 7, 2014, the State filed a petition for panel
rehearing and rehearing en banc. Dkt. # 50. While the
State’s petition for rehearing was pending, the U.S. Supreme
Court decided White v. Woodall, 134 S. Ct. 1697 (2014),
which clarified § 2254(d)(1)’s “unreasonable application”
clause. In light of Woodall, we granted the State’s petition
for panel rehearing and withdrew our March 24, 2014
Memorandum Disposition. Dkt. # 52. We now reverse the
district court’s judgment and remand. We hold that Babb’s
application of § 2254(d)(1) is “clearly irreconcilable” with
Woodall, as applied to petitioners in Moore’s position and is
therefore no longer controlling in this case. See Miller v.
6                    MOORE V. HELLING

Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc).
Under Woodall, we conclude that the state court did not
unreasonably apply clearly established federal law in denying
Moore’s Byford claim and, for that reason, reverse the district
court’s grant of Moore’s petition for a writ of habeas corpus.

                              I.

                              A.

    Moore participated in a robbery during which his co-
defendant, Charles Morris (“Morris”), shot and killed
Branson Clark (“Clark”). Moore, Morris, and two others
planned to rob the occupants of an apartment in Reno,
Nevada. The four planned to wait outside the apartment
building until someone entered the unit they intended to rob,
at which point they would enter the unit and steal money and
drugs that they believed the occupants of the unit possessed.

    While the four were waiting outside the apartment, one of
them observed Clark enter the unit carrying bags. At that
point, they decided to rob Clark when he left the unit. When
Clark exited the unit, Morris followed Clark around the
apartment building, and Moore followed Morris. While
Moore was following Morris, he saw Morris aim his gun and
then, apparently when Morris was no longer in view, heard
four gunshots. Moore then rounded the corner of the
building, saw Morris running, and took off running himself.

    Clark, who was a delivery driver at a local restaurant and
went to the apartment complex to deliver a food order, was
killed. His wounds were consistent with rifle shots, and there
were two weapons recovered at the scene, an assault rifle and
a semiautomatic pistol, both of which belonged to Moore.
                     MOORE V. HELLING                        7

After the robbery, Moore gave a lengthy statement to the
police, in which he admitted to his involvement in the
robbery and described the details explained above, but
claimed that he did not shoot Clark. The State charged
Moore with first degree murder, robbery, and conspiracy to
commit robbery.

    The prosecution asserted four theories of first degree
murder: premeditated and deliberate murder by means of
violence to a person; felony murder; aiding and abetting
another in premeditated and deliberate murder; and
premeditated and deliberate murder as a result of a conspiracy
to commit robbery. As to premeditated and deliberate murder
by means of violence to a person, the trial court gave the
Kazalyn instruction. On September 24, 1999, the jury
returned a general verdict in which it convicted him of first
degree murder, robbery, and conspiracy.

                              B.

    In 2000, after Moore was convicted but before his
conviction became final, the Nevada Supreme Court decided
Byford, which invalidated the Kazalyn instruction. The
Nevada Supreme Court concluded that the instruction
improperly blurred the distinction between first and second
degree murder by failing to provide an independent definition
of “deliberation,” which is required for first, but not second,
degree murder. Byford, 994 P.2d at 713. It therefore set forth
new instructions to be used for first degree murder based on
a willful, deliberate, and premeditated killing, which defined
each of those three terms separately. Id. at 714. Eight years
later, the Nevada Supreme Court determined that Byford
represented a change in Nevada law that narrowed the scope
of criminal conduct constituting first degree murder and, for
8                    MOORE V. HELLING

that reason, was applicable to cases pending on direct appeal
when Byford was decided. Nika, 198 P.3d at 849–50.

    Moore’s appeal was pending when Byford was decided.
In his direct appeal, he argued, in relevant part, that his first
degree murder conviction should be reversed due to the trial
court’s use of the Kazalyn instruction. The Nevada Supreme
Court rejected the Byford claim in a footnote. Moore, 27 P.3d
at 450 n.16. In his federal habeas petition, Moore again
raised the Byford claim, arguing that the use of the Kazalyn
instruction violated his due process rights as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments. The district
court granted Moore relief on this ground, Moore, 861 F.
Supp. 2d at 1207–08, and the State appealed.

                               II.

    This Court reviews a district court’s decision to grant or
deny a habeas petition de novo. Aguilar v. Woodford,
725 F.3d 970, 972 (9th Cir. 2013). Under 28 U.S.C.
§ 2254(d), a habeas petitioner whose claim was adjudicated
on the merits in state court may obtain relief in federal court
only if the state court’s adjudication of the claim:

        (1) resulted in a decision that was contrary to,
        or involved an unreasonable application of,
        clearly established Federal law, as determined
        by the Supreme Court of the United States; or
        (2) resulted in a decision that was based on an
        unreasonable determination of the facts in
        light of the evidence presented in the State
        court proceeding.
                     MOORE V. HELLING                        9

28 U.S.C. § 2254(d). “Section 2254(d)(1)’s clearly
established phrase 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) (citation and internal quotation marks omitted).

                             III.

     As we explained in the now-withdrawn memorandum
disposition, under Babb, Moore would have been entitled to
relief pursuant to § 2254(d)(1). We now hold, however, that
in light of the Supreme Court’s recent decision in Woodall,
Babb no longer controls the outcome of this case. After
Woodall, we can no longer conclude that the Nevada court’s
failure to apply Byford to Moore’s conviction was contrary to,
or an unreasonable application of, clearly established federal
law under § 2254(d)(1).

                              A.

    Before Woodall, this Circuit recognized two ways in
which a petitioner could show an unreasonable application of
federal law under § 2254(d)(1): first, “‘if the state court
identifie[d] the correct governing legal rule . . . but
unreasonably applie[d] it to the facts’” of the case; and
second,“‘if the state court either unreasonably extend[ed] a
legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuse[d]
to extend that principle to a new context where it should
apply.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013)
(quoting Williams v. Taylor, 529 U.S. 362, 407 (2000)
10                      MOORE V. HELLING

(emphasis added)).2 Woodall calls this last option the
“unreasonable-refusal-to-extend concept” and circumscribes
its use. See Woodall, 134 S. Ct. at 1705–07. According to
Woodall, the Court never adopted or endorsed the
unreasonable-refusal-to-extend rule (or at least never granted
habeas relief on that basis). The Court explained that,
correctly interpreted, “[s]ection 2254(d)(1) provides a remedy
for instances in which a state court unreasonably applies this
Court’s precedent; it does not require state courts to extend
that precedent or license federal courts to treat the failure to
do so as error.” Id. at 1706. The Court noted that “‘if a
habeas court must extend a rationale before it can apply to the
facts at hand,’ then by definition the rationale was not ‘clearly
established at the time of the state-court decision.’” Id.
(quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

    Woodall acknowledged that § 2254(d)(1) does not require
an “‘identical factual pattern before a legal rule must be
applied.’” Id. (quoting Panetti v. Quarterman, 551 U.S. 930,
953 (2007)). But, it explained, a state court violates clearly
established federal law by refusing to extend a principle to a
new set of facts only if it is “‘beyond doubt’” that the
principle applies to the new situation. Id. (quoting
Yarborough, 541 U.S. at 666). Therefore, “relief is available
under § 2254(d)(1)’s unreasonable-application clause if, and
only if, it is so obvious that a clearly established rule applies
to a given set of facts that there could be no ‘fairminded
disagreement’ on the question.” Id. at 1706–07 (quoting
Harrington v. Richter, 131 S. Ct. 770, 787 (2011)).



  2
   Other circuits were in accord. See, e.g., Allen v. Chandler, 555 F.3d
596, 602 (7th Cir. 2009); Green v. French, 143 F.3d 865, 869–70 (4th Cir.
1998).
                      MOORE V. HELLING                          11

     In Woodall, the Sixth Circuit had concluded that it was
clearly established under a trio of Supreme Court cases that
it was a violation of a defendant’s Fifth Amendment right to
fail to give a no-adverse-inference instruction at the penalty
phase of a capital trial. 134 S. Ct. at 1702 (citing Woodall v.
Simpson, 685 F.3d 574, 579 (6th Cir. 2012)). The Court
rejected this conclusion, however, because no case had
specifically held as much and the trio of cases on which the
Sixth Circuit relied was amenable to multiple, reasonable
interpretations. Id. at 1702–05. One case on which the Sixth
Circuit relied held that a no-adverse-inference instruction is
required at the guilt phase of a capital trial, id. at 1702 (citing
Carter v. Kentucky, 450 U.S. 288, 294–95, 300 (1981));
another held that a defendant’s Fifth Amendment right
against self-incrimination is violated by the penalty-phase
introduction of the results of an involuntary, un-Mirandized
pretrial psychiatric evaluation, id. (citing Estelle v. Smith,
451 U.S. 454, 456–57 & n.1 (1981)); and the third
disapproved of a trial judge drawing an “adverse inference
from the defendant’s silence at sentencing ‘with regard to
factual determinations respecting the circumstances and
details of the crime,’” id. (quoting Mitchell v. United States,
526 U.S. 314, 327–30 (1999)). None of these cases, however,
specifically held that the Fifth Amendment required a
penalty-phase no-adverse-inference instruction. Nonetheless,
the Sixth Circuit held that the principle was clearly
established because “‘reading Carter, Estelle, and Mitchell
together, the only reasonable conclusion is that’ a no-adverse-
inference instruction was required at the penalty phase.” Id.
(quoting Woodall, 685 F.3d at 579).

    The Court rejected this holding because, in its view, there
were other reasonable conclusions to be drawn from Carter,
Estelle, and Mitchell. Id. at 1702–03. The Woodall Court
12                   MOORE V. HELLING

specifically focused on Mitchell, because that was the case
that was the most directly relevant to the question before the
Court. It concluded that Mitchell left open the possibility that
some adverse inferences were permissible at the penalty
phase of a capital trial. The Court explained that while
Mitchell might preclude a penalty-phase adverse inference as
to guilt or the circumstances of the crime, it might be
permissible under this precedent to draw from the defendant’s
silence conclusions about his lack of remorse or acceptance
of responsibility. Id. at 1703 (noting that Mitchell separately
reserved the question of whether silence may be used to
assess remorse or acceptance of responsibility). The Court
held that the Sixth Circuit’s analysis “disregard[ed] perfectly
reasonable interpretations of Estelle and Mitchell and hence
contravene[d] § 2254(d)’s deferential standard of review.”
Id.

    Woodall thus limits federal courts’ ability to extend
Supreme Court rulings to new sets of facts on habeas review.
Under Woodall, courts may so extend Supreme Court rulings
only if it is “beyond doubt” that the rulings apply to the new
situation or set of facts. Id. at 1706. Woodall further held
that it is beyond doubt that a ruling applies to a new set of
facts only if there can be “no ‘fairminded disagreement’ on
the question,” id. (quoting Harrington, 131 S. Ct. at 787) – in
other words, when the one – the only – reasonable inference
to be drawn from the Court’s precedent is that the principle
applies to the new circumstance. According to Woodall, if
there are any other reasonable inferences that can be drawn
from the relevant precedent, the principle is not clearly
established under § 2254(d). See id. at 1702–05.
                     MOORE V. HELLING                        13

                              B.

    The issue is whether Babb relied on the unreasonable-
refusal-to-extend rule the Court rejected in Woodall. In
Babb, we were presented with the question of whether federal
law requires that a change in state law, namely, the rejection
of the Kazalyn instruction, must be applied to a conviction
pending on direct appeal at the time of the change. 719 F.3d
at 1023–25, 1032–33. There, we relied on § 2254(d)(1)’s
unreasonable-refusal-to-extend concept to hold that the
Nevada Supreme Court unreasonably applied clearly
established federal law when it failed to apply the change
announced in Byford to defendant Latisha Babb’s conviction,
which was pending on appeal when Byford was decided.
719 F.3d at 1032–33 (citing Williams, 529 U.S. at 407, for the
proposition that an unreasonable refusal to extend constitutes
an unreasonable application of Supreme Court precedent
under § 2254(d)(1)).

    When the state court ruled on Babb’s Byford claim in
2001, no Supreme Court case had yet directly addressed the
application of changes in state law to cases pending on
appeal. However, we found the principle that changes in state
law must be applied to convictions pending on direct appeal
when the law is changed clearly established based on a pair
of cases dealing with similar questions. The first of these,
Griffith v. Kentucky, 479 U.S. 314 (1987), held that newly
declared constitutional rules must be applied to convictions
that are not final when the new rule is announced. Id. at 328.

    We recognized in Babb that Griffith alone did not clearly
establish the principle that changes in state law apply to cases
pending on direct appeal, largely because Griffith dealt with
a change in federal constitutional law. See Babb, 719 F.3d at
14                   MOORE V. HELLING

1032 (“Griffith alone would not be sufficient to invalidate
Babb’s conviction because the change at issue was a change
in state law.” (citing Murtishaw v. Woodford, 255 F.3d 926,
955–56 (9th Cir. 2001) (holding that Griffith applies only to
new constitutional rules))). However, in Babb we found the
principle clearly established based on subsequent authority
that extended the Griffith principle to developments in state
law. See id. Specifically, in Fiore v. White, 531 U.S. 225
(2001) (“Fiore II”), the Court reversed a defendant’s
conviction when, after the conviction became final, the state
supreme court clarified that the conduct in which the
defendant engaged did not constitute a violation of the statute
under which he was convicted. Id. at 228–29. There, the
defendant, William Fiore, was convicted under a
Pennsylvania statute that prohibited operating a waste facility
without a permit. Although Fiore had a permit to operate a
waste facility, he was convicted based on evidence that he
deviated from the permit’s terms. Id. at 226–27.

    When Fiore’s conviction became final, lower courts in
Pennsylvania were divided over whether a defendant could be
convicted of operating a waste disposal facility under these
circumstances. Id.; see also Fiore v. White, 528 U.S. 23, 28
(1999) (“Fiore I”). After his conviction became final, the
Pennsylvania Supreme Court concluded that the statute did
not apply to defendants who, like Fiore, possessed a permit
but deviated from its terms. Fiore II, 531 U.S. at 227 (citing
Commonwealth v. Scarpone, 634 A.2d 1109, 1112 (Pa.
1993)). The Pennsylvania Supreme Court later stated, in
response to a certification of the question by the Court, see
Fiore I, 528 U.S. at 29, that this interpretation represented a
clarification of state law and described the law as it had
existed at the time Fiore’s conviction became final. Fiore II,
531 U.S. at 228. Fiore was thus convicted based on conduct
                     MOORE V. HELLING                        15

that the “criminal statute, as properly interpreted, [did] not
prohibit.” Id. Therefore, the Court concluded that the
conviction violated the federal Due Process Clause.

    We held in Babb that, after Griffith and Fiore II, it was
clearly established federal law that some changes to state law
are applicable to cases pending on appeal when the new state
law is announced. 719 F.3d at 1032–33. Babb thus
concluded that it was unreasonable under Griffith and Fiore
II for the state court to fail to apply Byford to Babb’s
conviction. Id. We were aided in reaching this conclusion by
Bunkley v. Florida, 538 U.S. 835 (2003), which was decided
after the state court ruled on Babb’s Byford claim. See id. at
836–37. Bunkley directed the lower court to determine
whether a potentially exonerating change in state law had
occurred before the defendant’s conviction became final, and
held that the state court was required to apply that change to
the defendant’s conviction if it found in the affirmative.

     Because Bunkley post-dated the Nevada Supreme Court’s
decision on Babb’s Byford claim, we did not (and could not)
rely on it as clearly establishing the principle that changes in
state law apply to cases pending on direct appeal when the
law is changed. See Andrade, 538 U.S. at 71. However, we
further concluded that Bunkley confirmed the principles
underlying Fiore II and Griffith. We concluded in Babb that
Bunkley “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.” 719 F.3d at
1031–32. We explained that “[o]ne 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.’”
16                  MOORE V. HELLING

Id. (quoting Griffith, 479 U.S. at 324). We held that “[t]his
principle would necessarily apply to a change in the
definition of the elements of mens rea for first degree
murder”; therefore, that the state court unreasonably applied
clearly established law when it failed to apply Byford to
Babb’s conviction. Id.

    We did not, however, have the benefit of Woodall when
we made that determination. Babb’s conclusion that Griffith
and Fiore II sufficiently established the rule we applied in
Babb cannot survive Woodall. Neither Griffith nor Fiore II
involved the application of a post-conviction change in state
law to a pending conviction: Griffith involved a change to a
constitutional rule, Griffith, 479 U.S. at 316, and Fiore II
involved a clarification that articulated state law as it had
always existed, Fiore II, 531 U.S. at 228. Woodall prohibits
relief under § 2254(d) if there can be “fairminded
disagreement” on the question of whether changes in state
law apply to cases pending on direct review when the law
was changed. Woodall, 134 S. Ct. at 1706–07 (quoting
Harrington, 131 S. Ct. at 787). We conclude that such
disagreement is possible.

    We have previously held that Griffith does not, by itself,
extend to changes in state law. Babb, 719 F.3d at 1032;
Murtishaw, 255 F.3d at 956 (“Griffith requires retroactive
application only of new constitutional rules of criminal
procedure[.] It does not require retroactive application of
every new state-declared common law rule.” (internal citation
and quotation marks omitted)). Combining Griffith and Fiore
II, as we did in Babb, does not eliminate fairminded
disagreement.
                     MOORE V. HELLING                       17

    It is reasonable to interpret Fiore II as establishing that
changes in state law must be applied to convictions that are
pending on appeal when the change is announced. The Court
in Fiore II considered whether the interpretation of the state
law at issue properly articulated the law “when Fiore’s
conviction became final.” 531 U.S. at 226 (emphasis added).
The Court certified a question to the Pennsylvania Supreme
Court that focused on the state of the law when Fiore’s
conviction became final:

       Does the interpretation of Pa. Stat. Ann., Tit.
       35, § 6018.401(a) (Purdon 1993), set forth in
       [Scarpone], state the correct interpretation of
       the law of Pennsylvania at the date Fiore’s
       conviction became final?

Fiore I, 528 U.S. at 29 (emphasis added). When the
Pennsylvania Supreme Court replied that the subsequent
interpretation articulated the state of the law when Fiore’s
conviction became final, the Court held that the state court
was required to apply the interpretation to his conviction.
Fiore II, 531 U.S. at 228–29.

     Significantly, Fiore II did not speak in terms of a change
or a clarification, but only in terms of the status of law when
Fiore’s conviction became final. Fiore II thus can be read as
standing for the simple proposition that the reviewing court
is required to apply the law as it existed when the defendant’s
conviction became final. Because Byford was the controlling
law when Babb’s conviction became final, the failure to use
the Byford instruction would be contrary to Fiore II and
entitle Babb to relief under § 2254(d)(1) – even though Fiore
II dealt with a clarification in law and Byford represented a
change in law.
18                    MOORE V. HELLING

     We cannot say, however, that this is the only reasonable
interpretation of Fiore II. The above analysis requires us to
look past Fiore II’s specific holding and consider the
principles underlying the Court’s decision, given that Fiore
II did not directly deal with the effect of a change in state law.
A fairminded jurist could conclude that this alone takes the
case outside of § 2254(d)(1)’s purview. See Andrade,
538 U.S. at 71. In other words, a fairminded jurist could
conclude that because Fiore II did not specifically hold that
changes in state law apply to convictions pending on appeal,
Fiore II cannot clearly establish the principle sufficient to
warrant relief under § 2254(d)(1), even if the principles
underlying Fiore II supported this conclusion. See id.

     Woodall drew just such a distinction between the holding
of a Supreme Court case and the principles underlying that
holding, noting that the holding of a case is the only aspect of
that decision relevant to relief under § 2254(d). See 134 S.
Ct. at 1704 n.4. In Woodall, the dissent interpreted the
holding of Estelle, on which the Sixth Circuit relied, more
broadly than did the majority. As noted above, Estelle dealt
with the penalty-phase introduction of an un-Mirandized
psychiatric evaluation. Estelle, 451 U.S. at 456. The
Woodall dissent concluded that in Estelle the Court “held that
‘so far as the protection of the Fifth Amendment privilege is
concerned,’ it could ‘discern no basis to distinguish between
the guilt and penalty phases’ of a defendant’s ‘capital murder
trial.’” Woodall, 134 S. Ct. at 1707 (Breyer, J., dissenting)
(quoting Estelle, 451U.S. at 462–63). The majority, however,
rejected this broader interpretation of Estelle’s holding. In
the majority’s view, Estelle held only “that the defendant’s
Fifth Amendment ‘rights were abridged by the State’s
introduction of’ a pretrial psychiatric evaluation that was
administered without the preliminary warning required by
                         MOORE V. HELLING                                19

Miranda[].” Id. at 1704 n.4 (quoting Estelle, 451 U.S. at
473).

    Here, a fairminded jurist could narrowly interpret Fiore
II’s holding to conclude that because Fiore II specifically
addressed only the effect of clarifications, its holding applied
only to clarifications in state law. After the Pennsylvania
Supreme Court replied to the Court’s certification in Fiore I,
stating that Scarpone represented a clarification to state law,
the only question before the Court was whether that
clarification applied to Fiore’s conviction. Fiore II, 531 U.S.
at 228. And the Court held that it did. Id. at 228–29. A
fairminded jurist could therefore conclude that Fiore II
narrowly held that clarifications in state law apply
retroactively to the date of the defendant’s conviction, to the
extent that clarification stated the correct interpretation of the
law at the date the conviction became final.3 Because Fiore
II only specifically addressed clarification of law, a
fairminded jurist could conclude that it applies only to
clarifications for purposes of § 2254(d)(1).




  3
     There is some ambiguity in the Court’s jurisprudence over whether
application of a new rule or interpretation of law to pending cases requires
giving that new rule or interpretation “retroactive” effect. Some decisions
suggest that retroactivity is at play. See, e.g., Griffith, 479 U.S. at 328
(“We therefore hold that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final . . . .” (emphasis added)). Others,
however, indicate otherwise. See, e.g., Bunkley, 538 U.S. at 840
(“‘[R]etroactivity is not at issue’ if the [new interpretation] . . . is ‘a
correct statement of the law when [a defendant’s] conviction became
final.” (emphasis added)). This ambiguity, however, only reinforces our
conclusion that Babb’s application of Fiore II to post-conviction changes
in state law is not beyond any “fairminded disagreement.”
20                   MOORE V. HELLING

    A fairminded jurist also could conclude that a change of
law might differ in substance from a clarification of law. In
other contexts, we treat changes in law differently than we
treat clarifications. See, e.g., ABKCO Music, Inc. v. LaVere,
217 F.3d 684, 691 (9th Cir. 2000) (Congressional acts that
change the law require a retroactivity analysis, but
Congressional acts that merely clarify existing law do not);
United States v. Johns, 5 F.3d 1267, 1269 (9th Cir. 1993)
(clarifications to the U.S. Sentencing Guidelines apply
retroactively to the date of sentencing, but changes might
not). A fairminded jurist could conclude that a change in
state law is not the same as a clarification to state law – or at
least that we cannot necessarily assume that the Court meant
to include changes in law when it discussed clarifications. It
would thus be reasonable to interpret Fiore II as addressing
only the effect of clarifications of state law. Under this
reasonable interpretation of Fiore II, the case does not clearly
establish that changes in state law apply to pending
convictions, even though clarifications of state law do.

    We therefore conclude that Babb’s reasoning “disregards
perfectly reasonable interpretations of [Griffith] and [Fiore II]
and hence contravenes § 2254(d)’s deferential standard of
review.” Woodall, 134 S. Ct. at 1704. We do not aim to
cover the universe of fairminded interpretations of Fiore II
and Griffith, nor do we comment on what we believe to be the
correct interpretation of these cases. See Woodall, 134 S. Ct.
at 1703 (noting that it was not necessary to determine the
correct interpretation of the cases on which the lower court
relied in granting habeas relief, but only to determine whether
there could be fairminded disagreement as to their proper
interpretation). Because there are multiple, reasonable
interpretations of Fiore II, the case cannot serve as the
foundation for the clearly established principle that changes
                     MOORE V. HELLING                       21

in state law apply to pending convictions under § 2254(d)(1).
See Woodall, 134 S. Ct. at 1705–06. And we have already
determined that Griffith cannot serve this function. See Babb,
719 F.3d at 1032.

    We note that we do not decide today whether Bunkley
clearly established that changes in state law apply to cases
pending on direct appeal. Bunkley might have demonstrated
that the logical next step from Griffith and Fiore II was to
hold that changes to state law apply to cases pending on
direct appeal when the law is changed, but, under Woodall,
that is insufficient to warrant federal habeas relief under
§ 2254(d)(1) because before Bunkley the Supreme Court had
not yet taken that step. See Woodall, 134 S. Ct. at 1707
(noting that even if the lower court’s interpretation was the
“logical next step” from existing precedent, a principle is not
clearly established under § 2254(d)(1) until the Court actually
takes that step). In any event, Bunkley is not relevant to Babb
because it post-dated the relevant state court decision in that
case.

    We express no opinion as to whether Babb remains good
law, after Woodall, with respect to defendants whose
convictions became final after Bunkley was decided. We
conclude only that Woodall overruled Babb only as to its
holding that the state court’s failure to apply the Byford
instruction to Babb’s conviction, which pre-dated Bunkley,
was contrary to clearly established federal law. Even after
Woodall, claims by defendants whose Byford claims post-
dated Bunkley might remain viable, and we express no
opinion on those claims.
22                   MOORE V. HELLING

                              C.

   In sum, we hold that Woodall’s clarification of the
unreasonable-refusal-to-extend rule is “clearly irreconcilable”
with Babb’s conclusion that the Nevada Supreme Court
unreasonably applied Supreme Court precedent by failing to
apply a change in state law to Babb’s pending conviction.
See Miller, 335 F.3d at 893. Woodall thus “effectively
overruled” Babb with respect to petitioners for whom, like
Babb, the relevant state court decision pre-dated Bunkley.
For those convictions, we are no longer bound by Babb. Id.

                              D.

    Moore was convicted in 1999. His conviction became
final – and the Nevada Supreme Court issued its relevant
decision – in 2001, upon the denial of his direct appeal.
Because there can be fairminded disagreement regarding
whether Griffith and Fiore II apply to post-conviction
changes in state law, the Nevada Supreme Court did not
unreasonably apply clearly established federal law when it
declined to apply the Byford instruction to Moore’s case. See
Woodall, 134 S. Ct. at 1706.

                             IV.

   For the reasons discussed above, we reverse the district
court’s grant of Moore’s petition for a writ of habeas corpus
and remand with directions to enter judgment for the State,
denying the petition.

     REVERSED and REMANDED.
