                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            MAR 24 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RYAN OSHUN MOORE,                                No. 12-15795

              Petitioner - Appellee              D.C. No. 3:05 cv-348-KJD

  v.

DON HELLING; STATE OF NEVADA                     MEMORANDUM*
ATTORNEY GENERAL,

              Respondents - Appellants.

                   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

Before:       FARRIS, TASHIMA, and McKEOWN, Circuit Judges.

       The State of Nevada appeals the judgment of the district court granting Ryan

Oshun Moore’s petition for a writ of habeas corpus. Reviewing the district court’s

grant of the petition de novo, see McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th

Cir. 2008), we affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The State initially raised two issues in its appeal: first, whether the use of

the Kazalyn instruction was constitutional error; and second, whether any error was

harmless. After the State filed its appeal, this Court decided Babb v. Lozowsky,

719 F.3d 1019 (9th Cir. 2013), which resolved the first question. Cf. Hart v.

Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves an issue

in a precedential opinion, the matter is deemed resolved, unless overruled by the

court itself sitting en banc, or by the Supreme Court.”). Moore’s case was pending

on direct appeal when the Nevada Supreme Court decided Byford v. State, 994

P.2d 700 (Nev. 2000). Therefore, under Babb, the failure to apply the new Byford

instruction in Moore’s case was an unreasonable application of clearly established

federal law. Babb, 719 F.3d at 1032–33; see also 28 U.S.C. § 2254(d)(1). After

Babb was decided, the State conceded that the giving of the Kazalyn instruction

was constitutional error.

      2. Therefore, the only remaining issue in this appeal is whether the

erroneous use of the Kazalyn instruction was harmless. We affirm the district

court’s determination that the error was not harmless. An instructional error is

harmless only if “it is reasonably probable that the jury would still have convicted

the petitioner on the proper instructions.” Babb, 719 F.3d at 1034. Based on the

particular facts and circumstances of this case, we cannot conclude that there is a


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reasonable probability that the jury would have convicted Moore of first degree

murder on the proper instructions.

      First, we cannot be reasonably certain that the jury would have convicted

Moore of first degree murder based on a premeditation theory if given the proper

instructions. “Deliberation is the process of determining upon a course of action

to kill as a result of thought, including weighing the reasons for and against the

action and considering the consequences of the action.” Byford, 994 P.2d at 714.

“Premeditation is a design, a determination to kill, distinctly formed in the mind by

the time of the killing.” Id. The evidence here falls far short of establishing

premeditation and deliberation. Moore did not confess to the crime, and in fact

repeatedly asserted in his statement to the police that he did not shoot Branson

Clark, did not intend to shoot Clark, did not go to the site of the robbery with the

intent of killing anyone, and was not carrying the gun that matched Clark’s

wounds. Further, no witness testified as to having seen Moore shoot Clark, and

there is no evidence of any kind that Moore fired the shot that killed Clark. Under

these circumstances, we cannot say that it is reasonably probable that a properly

instructed jury would have convicted Moore of premeditated and deliberate

murder. Cf. Chambers v. McDaniel, 549 F.3d 1191, 1200–01 (9th Cir. 2008); Polk




                                         -3-
v. Sandoval, 503 F.3d 903, 912–13 (9th Cir. 2007), abrogated on other grounds as

recognized in Babb, 719 F.3d at 1028–30.

      Second, we cannot be reasonably certain that the jury instead convicted

Moore based on a valid theory. Three of the four theories were affected by the

erroneous instruction, and nothing in the record indicates on which theory the jury

actually relied in convicting Moore. Neither the trial judge nor the attorneys

emphasized any particular theory. To the contrary, the trial judge told the jury that

it could convict on any theory and that the jurors need not all agree on which

theory to use; the prosecution emphasized that the jury could convict Moore on any

of the four theories; and the defense similarly focused equally on all theories,

arguing that the prosecution had met its burden on none. Under these

circumstances, we cannot “be reasonably certain that no juror convicted [Moore]

based on premeditation . . . .” Babb, 719 F.3d at 1034; cf. id. (finding the

erroneous use of the Kazalyn instruction harmless when the prosecution

emphasized the valid theory of felony murder in closing argument and the trial

judge instructed the jury to rely on premeditated murder only if it did not find the

defendant guilty of felony murder).

      The judgment of the district court is AFFIRMED.




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