                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 21 2010

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

DENISE DIANNA BUCHANAN,                          No. 09-16578

              Petitioner - Appellant,            D.C. No. 3:06-cv-00340-LRH-
                                                 RAM
  v.

SHERYL FOSTER, Warden; et al.,                   MEMORANDUM*

              Respondents - Appellees.


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

                       Argued and Submitted July 13, 2010
                           San Francisco, California

Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior
District Judge.**

       Denise Dianna Buchanan appeals the district court’s denial of her petition

for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253. The parties are familiar with the facts of the case, so we

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
repeat them here only to the extent necessary to explain our decision. We review

de novo the district court’s denial of the habeas petition, see Koerner v. Grigas,

328 F.3d 1039, 1045 (9th Cir. 2003), and we affirm.

      Buchanan’s petition is governed by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA). Under AEDPA, a state prisoner is entitled to relief

if the state court adjudication of a claim led to “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 “that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). “The relevant state court

determination for purposes of AEDPA review is the last reasoned state court

decision.” Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Here, we

review the Nevada Supreme Court’s decision to determine whether habeas relief is

available under AEDPA.

      Buchanan alleges that the state trial court’s jury instruction on the definition

of first-degree murder, which first appeared in Kazalyn v. State, 825 P.2d 578

(Nev. 1992), deprived Buchanan of due process by relieving the state of its burden

to prove that the killing of her sons was both deliberate and premeditated.

Assuming the jury instruction error constituted a violation of Buchanan’s due


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process rights, Buchanan is not entitled to relief unless she can show that “‘the

error had a substantial and injurious effect or influence in determining the jury’s

verdict.’” Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)). A “substantial and injurious effect”

exists when there is a “reasonable probability” that the jury would have arrived at a

different verdict had the proper instruction been given. See Clark v. Brown, 450

F.3d 898, 916 (9th Cir. 2006).

      In Nevada, the element of deliberation requires “a dispassionate weighing

process and consideration of consequences before acting.” Byford v. State, 994

P.2d 700, 714 (Nev. 2000). “Circumstantial evidence may be considered and

provide sufficient evidence to infer” the element of deliberation. Leonard v. State,

17 P.3d 397, 411 (Nev. 2001).

      The evidence of deliberation regarding these two crimes renders any jury

instruction error here harmless. Three of Buchanan’s very young children died

under similar circumstances over a five-year period, and the jury reasonably

rejected Buchanan’s defense in concluding that the latter two deaths were not

natural. The jury heard three different forensic pathologists testify that the

probable manner of death was asphyxiation by suffocation. The county coroner

testified of the statistical improbability or impossibility that John and Jacob died of


                                           3
SIDS. The jury heard testimony that the apnea monitors of both John and Jacob

were turned off when they died. There were inconsistencies in Buchanan’s

recitation of the events surrounding the deaths of John and Jacob. For example,

after Jacob’s death, Buchanan told the police that she had turned off Jacob’s

monitor around 7 a.m., but the monitor’s internal record indicated that it had been

turned off at 3:56 a.m. Numerous witnesses testified of Buchanan’s lack of

remorse in the aftermath of her children’s deaths. In light of the evidence

presented at trial, we conclude that the state court’s decision that the Kazalyn

instruction error was harmless was neither contrary to nor an unreasonable

application of Supreme Court harmless error precedent. See Inthavong v.

Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005).

      Buchanan also presented two uncertified issues in her opening brief, alleging

that there was insufficient evidence to sustain her conviction beyond a reasonable

doubt and that the prosecution in bad faith destroyed exculpatory evidence. We

deny Buchanan’s request to expand the certificate of appealability because she has

not made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2).

      AFFIRMED.




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