                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 25 2014

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

DENNIS K. KIEREN, JR.,                           No. 11-17915

              Petitioner - Appellee,             D.C. No. 3:07 cv-0341-LRH

  v.
                                                 MEMORANDUM*
STATE OF NEVADA ATTORNEY
GENERAL; ROBERT LeGRAND,
Warden,

              Respondents - Appellants.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, 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

Dennis Kieren’s petition for a writ of habeas corpus. Reviewing the district court’s




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
grant of the petition de novo, McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir.

2008), we affirm.

      1. Kieren exhausted his Fifth and Fourteenth Amendments due process

claim. Neither of the State’s arguments to the contrary convinces us otherwise.

First, a claim may be exhausted even if it is cited in only a reply brief. Cf. Scott v.

Schriro, 567 F.3d 573, 582-83 (9th Cir. 2009) (per curiam) (holding exhausted a

claim raised only in an appendix to a petition for review). Although the state court

could have deemed Kieren’s claim waived under Nevada Rules of Appellate

Procedure 28(c), it did not. Second, Kieren fairly presented his fair trial due

process claim by citing “his right to a fair trial guaranteed by the Sixth

Amendment.” The due process fair trial right and the Sixth Amendment fair trial

right are closely intertwined. See Strickland v. Washington, 466 U.S. 668, 684-85

(1984). And, under the facts of this case, due process and Sixth Amendment fair

trial challenges are “substantial[ly] equivalent.” Picard v. Connor, 404 U.S. 270,

278 (1971). Kieren’s “fair trial” claim therefore allowed the state court an

adequate “opportunity to pass upon and correct” the constitutionally erroneous use

of the Kazalyn first degree murder jury instruction at Kieren’s trial. Id. at 275

(internal quotation marks omitted).




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      2. Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), decided while this

appeal was pending, resolves the bulk of Kieren’s appeal. 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.”). Kieren’s case was still 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 Kieren’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).

      3. We cannot say that the error was harmless. Kieren argued two theories at

trial – provocation and self-defense – that plausibly undermine the conclusion that

Kieren acted “with coolness and reflection” after “a dispassionate weighing

process.” Byford, 994 P.2d at 714 (internal quotation marks omitted); see also id.

(“[A deliberate] determination must not be formed in passion, or if formed in

passion, it must be carried out after there has been time for the passion to subside

and deliberation to occur.”). As to provocation, we have declined to hold Kazalyn

errors to be harmless where killings followed “heated” arguments or physical

confrontations. Chambers v. McDaniel, 549 F.3d 1191, 1193, 1200-01 (9th Cir.

2008); see also Polk v. Sandoval, 503 F.3d 903, 912 (9th Cir. 2007), abrogated on


                                          3
other grounds as recognized in Babb, 719 F.3d at 1028-30. The evidence of

deliberation in this case is generally weaker than in other cases in which Kazalyn

errors were found harmless. See, e.g., Winfrey v. McDaniel, 487 F. App’x 331,

333 (9th Cir. 2012); Buchanan v. Foster, 388 F. App’x 723, 725 (9th Cir. 2010);

Evans v. State, 28 P.3d 498, 521 (Nev. 2001). And the violence of the

Kieren/Broyles confrontation, as well as evidence of Kieren’s continued passion,

suggests that Kieren had insufficient time to cool before killing Broyles. Cf.

Valdez v. State, 196 P.3d 465, 481 (Nev. 2008) (en banc); Allen v. State, 647 P.2d

389, 391 (Nev. 1982). As to self-defense, the jury could have plausibly credited

Kieren’s (albeit disputed) testimony that he acted in self-defense. Although the

jury rejected a complete self-defense theory, the theory could have negated or

mitigated elements of the first degree murder mens rea requirement, reducing the

degree of Kieren’s conviction. See Martin v. Ohio, 480 U.S. 228, 234 (1987);

Leonard v. State, 958 P.2d 1220, 1228 (Nev. 1998).

      The Kazalyn error “went to the very heart of the case,” because Kieren’s

state of mind was the main issue at trial. Chambers, 549 F.3d at 1200. Under

these facts, we, like the district court, are left in “grave doubt” as to the harmless of

the instructional error. Babb, 719 F.3d at 1033 (quoting O’Neal v. McAninch, 513

U.S. 432, 437 (1995)). There is a “reasonable probability” that the trial court’s use


                                           4
of the Kazalyn instruction “had [a] substantial and injurious effect or influence in

determining the jury’s verdict.” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619,

623 (1993)) (internal quotation marks omitted).

      The judgment of the district court is AFFIRMED.




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