                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            MAY 25 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRISTOPHER W. CONNORS,                          No. 15-15959

              Petitioner-Appellant,              D.C. No. 3:07-cv-00268-JCM-
                                                 VPC
 v.

BRIAN E. WILLIAMS, Sr. and NEVADA                MEMORANDUM*
ATTORNEY GENERAL,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted January 10, 2017
                            San Francisco, California

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

      This appeal involves a challenge to a jury instruction in a first-degree

murder case in Nevada, which defined deliberation as a part of premeditation,


      *
             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.
rather than as a separate element. The instruction is commonly referred to by the

name of the Nevada Supreme Court case that first discussed it, Kazalyn v. State,

108 Nev. 67, 825 P.2d 578 (1992).

      On December 14, 1990, Kelly Vanlandingham was shot in the head seven

times in a desert in Nevada. Christopher W. Connors (“Connors”) and his brother,

Tim Connors, were charged in two counts: murder with use of a deadly weapon

and robbery with use of a deadly weapon. The Connors were tried together in

1994. The jury was instructed that the case involved an open charge of murder,

which included and encompassed first-degree murder, second-degree murder,

voluntary manslaughter, and involuntary manslaughter.

      Tim Connors testified at trial that he shot Vanlandingham in self-defense.

He was convicted of first-degree murder with use of a deadly weapon and robbery

with use of a deadly weapon. The jury convicted Christopher Connors of first-

degree murder without use of a deadly weapon and robbery without use of a deadly

weapon. He was sentenced to a term of life in prison with the possibility of parole

on the murder conviction and a consecutive fifteen-year term of imprisonment on

the robbery conviction.

      Connors timely appealed his convictions to the Nevada Supreme Court. The

Nevada Supreme Court denied his claims and dismissed his appeal. Connors,


                                         2
acting pro se, filed a petition for writ of habeas corpus in 1997. His petition was

supplemented by counsel in 2005, which included a challenge to the Kazalyn

instruction. The Nevada district court denied Connors’ petition for post-conviction

relief, finding the allegations “are bare, belied by the record, or not entitled to relief

under any existing principle of law.” The Nevada Supreme Court affirmed the

district court’s decision on April 6, 2007.

      Connors timely submitted a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 to the United States District Court for the District of Nevada. The

district court denied Connors’ petition on May 19, 2010. This Court initially

denied Connors’ request for a certificate of appealability. Upon reconsideration,

the Court granted a certificate with respect to a single issue: “whether [Connors’]

trial counsel rendered ineffective assistance by failing to object to a jury instruction

that unconstitutionally blurred the distinction between first and second degree

murder.”

      Following briefing, counsel discovered that Connors’ trial counsel had

objected to the Kazalyn instruction at trial. Connors filed a motion to remand.

This Court remanded for the limited purpose of enabling the district court to

consider Connors’ motion for leave to amend his habeas petition. The district




                                              3
court granted Connors’ motion to amend his petition, and denied all claims

contained in the amended petition.

      Under 28 U.S.C. § 2254(d), we may not grant habeas relief on a claim

previously adjudicated on the merits in state court, unless 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.

      Connors asserts that use of the Kazalyn instruction violates his constitutional

right to due process because the offense conduct occurred before Kazalyn was

decided. Given the timing of the offense and Connors’ trial, we assume, without

deciding, that use of the Kazalyn instruction violated Connors’ due process rights.

      Notwithstanding, the assumed error is subject to harmless-error analysis.

Neder v. United States, 527 U.S. 1, 15 (1999). The test for whether a constitutional

error is harmless is whether it appears “beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Id. (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)).




                                           4
      The prosecution presented two alternate theories of first-degree murder to

the jury–felony murder in the perpetration of a robbery and murder perpetrated by

willful, deliberate, and premeditated killing. In addition to the challenged jury

instruction regarding premeditated murder, the jury was instructed on the felony-

murder rule. Instruction No. 10 stated:

      There is a type of murder which carries with it conclusive evidence of
      premeditation and malice aforethought. This class of murder is murder
      committed in the perpetration or attempted perpetration of Robbery.
      Therefore, a killing which is committed in the perpetration of the felony
      of Robbery is deemed to be Murder in the First Degree, whether the
      killing was intentional, unintentional or accidental. This is called the
      Felony-Murder rule.

      During closing arguments, the prosecutor first focused on the felony murder

rule, arguing that the case “crie[d] out for” and “could easily be disposed of” with

the felony-murder rule. The prosecutor then proceeded to explain the evidence he

believed supported a finding of premeditation.

      In order to convict on the felony murder theory, the jury only had to find

Connors guilty of robbery and that Vanlandingham was killed during the

perpetration of the robbery. Babb v. Lozowsky, 719 F.3d 1019, 1034 (9th Cir.

2013). The jury found both Tim and Christopher Connors guilty of robbery.

During the penalty phase, the jury returned a special verdict against Tim that found




                                          5
the murder was committed while he was engaged, alone, or with others in the

commission of a robbery.

      The evidence presented at trial established that Vanlandingham was killed,

robbed, and left dead in the desert. The convictions for robbery and the jury’s

special finding that Tim committed the murder during the commission of a robbery

are overwhelming evidence that the jury convicted both brothers pursuant to the

felony-murder rule. We hold that the evidence against Connors supporting the

conviction under the felony-murder rule was so overwhelming that the complained

of constitutional error would be harmless beyond a reasonable doubt.

      AFFIRMED.




                                          6
