                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 26 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JACK DAVID GETZ,                                  No.    14-15816

              Petitioner-Appellee,                D.C. No.
                                                  3:06-cv-00320-MMD-VPC
 v.

JACK PALMER and ATTORNEY                          MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents-Appellants.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                      Argued and Submitted January 10, 2017
                            San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,** District
Judge.

      The State of Nevada appeals from the district court’s grant of Jack Getz’s

petition for a writ of habeas corpus, seeking reversal in light of our court’s decision

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
in Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014). We review de novo,

McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008), and we reverse and

remand.

       On February 14, 2000, a jury found Getz guilty of first degree murder after

receiving the state Kazalyn instruction regarding premeditation. See Kazalyn v.

State, 108 Nev. 67, 75-76 (1992) (premeditation instruction in first degree murder

cases sufficiently distinguishes between “premeditation and malice aforethought”).

Two weeks after his jury conviction, the Nevada Supreme Court decided in Byford

v. State, 116 Nev. 215, 235-36 (2000), that the Kazalyn instruction should no

longer be given because premeditation and deliberation should be considered

separate elements required to convict for first degree murder. Subsequently, the

United States Supreme Court decided in Bunkley v. Florida, 538 U.S. 835, 841

(2003), that where a potentially exonerating change in state law occurs before a

defendant's conviction is final, due process requires the state to apply the change to

the defendant's conviction.

      Relying on Bunkley, we decided in Babb v. Lozowsky, 719 F.3d 1019, 1030-

33 (9th Cir. 2013), that it was a violation of clearly established United States

Supreme Court law not to apply the new Byford instruction in cases where a

defendant’s conviction was not final when Byford issued. Getz’s conviction was


                                           2                                       14-15816
affirmed by the Nevada Supreme Court on March 13, 2002, and became final on

June 11, 2002. The district court therefore determined that Getz was entitled to

habeas relief under Babb.

      One month later, the United States Supreme Court issued its opinion in

White v. Woodall, 134 S.Ct. 1697 (2014). In Woodall, the Supreme Court held that

relief under 28 U.S.C. § 2254(d) is prohibited where there can be “fairminded

disagreement” on the question of whether changes in state law apply to cases

pending on direct review when the law is changed. Id. at 1702. Our court then

determined in Moore v. Helling that Woodall effectively overruled Babb. Moore,

763 F.3d at 1021-22. Because Moore’s conviction was final before Bunkley was

issued, we determined that the Nevada Supreme Court did not unreasonably apply

clearly established Supreme Court law when it declined to apply the Byford

instruction in his case. Id. Therefore, we likewise hold that the Nevada Supreme

Court did not unreasonably apply clearly established Supreme Court law when it

declined to apply Byford in Getz’s case, who is in the same procedural posture as

defendant Moore: his conviction was final on June 11, 2002, prior to Bunkley.

      Getz has thus failed to show that the trial court’s use of the Kazalyn

instruction violated his due process rights. The use of the Kazalyn instruction at




                                          3                                    14-15816
Getz’s trial did not do so, because at that time in Nevada, first-degree murder

included only one mens rea instruction – the Kazalyn instruction.

      REVERSED and REMANDED for consideration in accord with Moore v.

Helling, 763 F.3d 1011 (9th Cir. 2014).




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