                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              NOV 21 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
CLARENCE H. ELLIOT,                    )     No. 11-17435
                                       )
      Petitioner - Appellee,           )     D.C. No. 2:08-cv-00829-GMN-RJJ
                                       )
      v.                               )     MEMORANDUM*
                                       )
BRIAN WILLIAMS; ATTORNEY               )
GENERAL FOR THE STATE OF               )
NEVADA,                                )
                                       )
      Respondents - Appellants.        )
                                       )

                   Appeal from the United States District Court
                            for the District of Nevada
                   Gloria M. Navarro, District Judge, Presiding

                          Submitted November 4, 2013**
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

      Brian Williams, Warden, Nevada Southern District Corrections Center, and

the Nevada Attorney General (collectively “the State”) appeal the district court’s

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
grant of a writ of habeas corpus to Clarence Elliot. See 28 U.S.C. § 2254. We

affirm.

      The State asserts that Elliot’s right to due process under the Fourteenth

Amendment to the United States Constitution was not violated when the jury at his

trial was improperly instructed on the deliberation element of first degree murder.

See Nev. Rev. Stat. § 200.030(1)(a). We disagree.

      At the time it decided Elliot’s case, the Nevada Supreme Court had

determined that the instruction regarding deliberation given at Elliot’s trial was no

longer proper, but that the new instructional requirements would not apply to

defendants, like Elliot, even though their cases were not final when the new

requirements were adopted. However, we later decided that a failure to apply the

new requirements to those defendants violated their due process rights. See Babb

v. Lozowksy, 719 F.3d 1019, 1030–33 (9th Cir. 2013).1 Of course, to be entitled to

relief, Elliot was required to show that the error was not harmless,2 but the State




      1
       Incidentally, the Nevada Supreme Court agrees that its prior position was
erroneous. See Nika v. State, 124 Nev. 1272, 1287, 198 P.3d 839, 850 (2008).
      2
       See Fry v. Pliler, 551 U.S. 112, 116, 127 S. Ct. 2321, 2325, 168 L. Ed. 2d
16 (2007); Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct. 1710, 1722,
123 L. Ed. 2d 353 (1993).

                                          2
does not argue that it was harmless.3 Moreover, on this record, we would be hard

pressed to find harmless error; at the very least there is grave doubt that it was

harmless. See O’Neal v. McAninch, 513 U.S. 432, 437–38, 115 S. Ct. 992, 995,

130 L. Ed. 2d 947 (1995); Coleman v. Calderon, 210 F.3d 1047, 1051 (9th Cir.

2000). The State does briefly suggest that because after Elliot filed his petition for

habeas corpus relief in the district court, the Nevada Supreme Court indicated that

it would give relief in cases that were not final, he should have returned to the State

courts. However, he had already invoked “one complete round of the State’s

established appellate review process,”4 and he was not required to do more.

      AFFIRMED.




      3
        Arguments that are not raised in the opening brief are waived. See Brooks
v. City of San Mateo, 229 F.3d 917, 922 n.1 (9th Cir. 2000); see also Greenwood
v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
      4
       See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144
L. Ed. 2d 1 (1999); see also Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir.
2002).

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