                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BILLY RAY RILEY,                          No. 17-15335
               Petitioner-Appellee,
                                            D.C. No.
                 v.                      3:01-cv-00096-
                                            RCJ-VPC
TIMOTHY FILSON; AARON D. FORD;
STATE OF NEVADA,
           Respondents-Appellants.          OPINION

      Appeal from the United States District Court
               for the District of Nevada
      Robert Clive Jones, District Judge, Presiding

        Argued and Submitted February 8, 2019
          Arizona State University, Phoenix

                 Filed August 9, 2019

 Before: M. Margaret McKeown, Milan D. Smith, Jr.,
       and Andrew D. Hurwitz, Circuit Judges.

              Opinion by Judge McKeown
2                        RILEY V. FILSON

                          SUMMARY *


                         Habeas Corpus

    The panel affirmed the district court’s denial of the State
of Nevada’s motion pursuant to Fed. R. Civ. P. 60(b)(6) for
relief from the district court’s judgment granting—on
remand from this court’s decision in Riley v. McDaniel, 786
F.3d 719 (9th Cir. 2015) (“Riley I”)—Billy Ray Riley’s
habeas corpus petition challenging his first-degree murder
conviction.

    In the Rule 60(b) motion, the State argued that post-Riley
I decisions of the Nevada Supreme Court changed the
elements for first-degree murder in Nevada in 1991, when
Riley’s murder conviction became final, thus requiring this
court to eschew its earlier interpretation of Nevada law.

    The panel held that the recent Nevada Supreme Court
decisions do not disagree about the relevant state-law
question that was the basis for Riley I: whether, at the time
of Riley’s conviction, first-degree murder in Nevada
required three discrete elements for mens rea. The panel
wrote that the decisions simply disagree about whether these
elements need to be separately defined, and do not constitute
a change in the relevant law required to support the State’s
Rule 60(b)(6) motion.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      RILEY V. FILSON                      3

                        COUNSEL

Jeffrey M. Conner (argued), Assistant Solicitor General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Respondents-Appellants.

David Anthony (argued) and Benjamin H. McGee III,
Assistant Federal Public Defenders; Rene L. Valladares,
Federal Public Defender; Office of the Federal Public
Defender, Las Vegas, Nevada; for Petitioner-Appellee.


                        OPINION

McKEOWN, Circuit Judge:

    The straightforward question before us is whether the
Nevada Supreme Court has, since our prior decision in this
case, changed the elements for first-degree murder in
Nevada in 1991, when Billy Ray Riley’s murder conviction
became final. See Riley v. McDaniel, 786 F.3d 719, 723 (9th
Cir. 2015) (“Riley I”). The State of Nevada claims that later
Nevada Supreme Court decisions require us to eschew our
earlier interpretation of Nevada law. While those recent
Nevada Supreme Court decisions take issue with Riley I,
they do not disagree about the relevant state-law question
that was the basis for that decision: whether, at the time of
Riley’s conviction, first-degree murder in Nevada required
three discrete elements for mens rea. Rather, they simply
disagree about whether these elements needed to be
separately defined. See Adams v. State, No. 60606, 2016
WL 315171, at *2 (Nev. Jan. 22, 2016); Canape v. State, No.
62843, 2016 WL 2957130, at *2 n.5 (Nev. May 19, 2016);
Leavitt v. State, 383 P.2d 751 (Nev. 2016) (mem.),
subsequently published at 386 P.3d 620, 620–21 (Nev. 2016)
4                        RILEY V. FILSON

(per curiam). A close look at the relevant cases reveals that
no change in state law undermines Riley I’s interpretation of
these requisite mens rea elements. The district court did not
abuse its discretion by denying the State’s motion for relief
from the judgment under Federal Rule of Civil Procedure
60(b)(6), which was predicated on a purported change in
state law. We affirm.

                I. PROCEDURAL BACKGROUND

     Riley was tried in 1990 and his conviction for robbery
and first-degree murder became final a year later. Riley I,
786 F.3d at 721, 723. Riley was sentenced to death for the
first-degree murder conviction, which is defined in part as
“willful, deliberate and premeditated killing.” Nev. Rev.
Stat. § 200.030(1)(a); Riley I, 786 F.3d at 721. He
challenged the district court’s denial of his federal habeas
petition with respect to the murder conviction and death
sentence in Riley I

    In Riley I, this court reversed and remanded to the district
court to grant Riley’s petition.           We concluded the
premeditation instruction given during his trial, commonly
referred to as the Kazalyn instruction, 1 removed the statutory
element of deliberation from the jury’s consideration,
violating the Due Process Clause. Id. at 723–24 (citing
Sandstrom v. Montana, 442 U.S. 510, 521 (1979)). The
Kazalyn instruction “define[s] deliberation as a part of
premeditation, rather than as a separate element.” Id. at 723.
Although the Kazalyn instruction is not facially

    1
       The instruction is named for the Nevada Supreme Court case that
first discussed it, Kazalyn v. State, 825 P.2d 578 (Nev. 1992) (per
curiam), although the instruction had been used previously. Riley I,
786 F.3d at 723.
                          RILEY V. FILSON                              5

unconstitutional, it “violates due process if, at the time it was
given, Nevada law required the state to prove deliberation as
a discrete mens rea element.” Id. at 724. In 1991, the
Nevada Supreme Court required that “all three elements,
willfulness, deliberation, and premeditation, must be proven
beyond a reasonable doubt before an accused can be
convicted of first degree murder.” Id. at 723 (emphasis
added) (quoting Hern v. State, 635 P.2d 278, 280 (Nev.
1981)). Thus, when Riley’s conviction became final,
“deliberation was a discrete element of first-degree murder
in Nevada.” Id. Because the instruction at Riley’s trial
mandated a finding of “willful, deliberate and premeditated
murder” if the jury believed the killing was “the result of
premeditation,” the instruction impermissibly subsumed the
element of deliberation within premeditation. Id.

    Following the district court’s grant of Riley’s habeas
petition on August 19, 2016, the State filed a motion for
relief from the judgment pursuant to Rule 60(b)(6). The
State argued that three intervening unpublished decisions of
the Nevada Supreme Court undermined Riley I’s
interpretation of state law. 2 The district court denied the
State’s motion.

                            II. ANALYSIS

    A. Standard for Relief Under Rule 60(b)(6)

    We require “‘extraordinary circumstances’ justifying the
reopening of a final judgment” under Rule 60(b)(6) and have
outlined “six factors that may be considered, among others,
to evaluate whether extraordinary circumstances exist.”

    2
      Leavitt subsequently was published at the request of the State. See
Leavitt, 386 P.3d at 620 n.1.
6                     RILEY V. FILSON

Lopez v. Ryan, 678 F.3d 1131, 1135 (9th Cir. 2012) (quoting
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). We evaluate
the denial of Rule 60(b)(6) relief under the abuse of
discretion standard but, of course, an abuse of discretion
manifests where the decision rests “upon an erroneous view
of the law.” Phelps v. Alameida, 569 F.3d 1120, 1131 (9th
Cir. 2009); see also Buck v. Davis, 137 S. Ct. 759, 777
(2017).

    Here, the key issue is whether there was “a change in the
law,” and so we do not need to reach the other five factors if
there was no change. Jones v. Ryan, 733 F.3d 825, 839 (9th
Cir. 2013) (citing Phelps, 569 F.3d at 1135–36). Even
though a legal change may be persuasive if it is “clear and
authoritative,” Phelps, 569 F.3d at 1131 (quoting Polites v.
United States, 364 U.S. 426, 433 (1960)), a change in the
law does not always supply sufficient conditions for granting
the motion. Phelps, 569 F.3d at 1133 (citing Ritter v. Smith,
811 F.2d 1398, 1401 (11th Cir. 1987)).

    The standard for a Rule 60(b)(6) motion is high, and such
“relief should be granted ‘sparingly’ to avoid ‘manifest
injustice.’” Navajo Nation v. Dep’t of the Interior, 876 F.3d
1144, 1173 (9th Cir. 2017) (quoting United States v. Alpine
Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993)).
“Such circumstances ‘rarely occur in the habeas context.’”
Jones, 733 F.3d at 833 (quoting Gonzalez, 545 U.S. at 535).

    B. Intervening Nevada Supreme Court Cases Did
       Not Change the Law or Undermine Riley I

   The State’s motion is predicated on three Nevada
Supreme Court cases decided after Riley I that the State
argues reject this court’s interpretation of Nevada law. We
analyze this argument similarly to how we would assess a
change in the law. See, e.g., Ritter, 811 F.2d at 1401.
                     RILEY V. FILSON                      7

     Both before and after Riley’s conviction, the Nevada
Supreme Court explicitly held that the mens rea required for
first-degree murder includes three distinct elements—
willfulness, deliberation, and premeditation. Leavitt—the
only precedential opinion that the State asserts muddies the
waters—does not undermine that interpretation of Nevada
law. Nor does the Nevada Supreme Court’s temporary
change of heart after Riley’s conviction change the outcome
in his case.

    In Riley I, we relied on the Nevada Supreme Court’s
decision in Hern, decided in 1981, to conclude that
deliberation and premeditation are separate mens rea
elements of the crime of first-degree murder. Riley I,
786 F.3d at 723 (citing Hern, 635 P.2d at 280). Leavitt does
not offer anything new. Instead, it expressed disagreement
with Riley I by suggesting a case available at the time of
Riley I—Nika v. State, 198 P.3d 839 (Nev. 2008) (en banc)—
undermined Hern and our decision citing it. Leavitt,
386 P.3d at 620–21. To support this position, Leavitt cited
Nika because it

       discuss[es] the history of Nevada law on the
       phrase       “willful,     deliberate,    and
       premeditated,” including Hern v. State,
       635 P.2d 278 (Nev. 1981), and explain[s] that
       prior to Byford [v. State, 994 P.2d 700 (Nev.
       2000) (en banc),] this court had not required
       separate definitions of the terms and had
       instead viewed them as together conveying a
       meaning that was sufficiently described by
       the definition of “premeditation” eventually
       approved in Kazalyn and Powell [v. State,
       838 P.2d 921 (Nev. 1992) (per curiam)].
8                        RILEY V. FILSON

Id. (emphasis added) (citing Nika, 198 P.3d at 851). 3

    A close reading of Nika thus becomes a focal point of
our analysis. Nika is entirely in line with our understanding
of Nevada law in Hern and its assessment of the key state-
law question of the mens rea elements in 1991. What the
State’s argument misses is that Nika recognized that “the
Hern court stated that ‘[i]t is clear from the statute that all
three elements, willfulness, deliberation, and premeditation,
must be proven beyond a reasonable doubt before an accused
can be convicted of first degree murder.’” Nika, 198 P.3d
at 846 (alternation in original) (emphasis added) (quoting
Hern, 635 P.2d at 280).

    Additionally, Nika’s focus on whether Nevada law
requires separate definitions of the statutory terms
premeditation and deliberation is a separate state-law
question from whether these terms are distinct mens rea
elements of first-degree murder, which was at issue in Riley
I. See Nika, 198 P.3d at 842, 845; Riley I, 786 F.3d at 723–
24. Relevant here, Nika emphasized that “the Hern court did
not specifically define ‘premeditation’ and ‘deliberation.’”
Nika, 198 P.3d at 846. As the Nevada Supreme Court has
explained, “[b]efore Kazalyn, [decided in 1992,] it appears
that ‘deliberate’ and ‘premeditated’ were both included in
jury instructions without being individually defined but also
without ‘deliberate’ being reduced to a synonym of
‘premeditated.’” Byford, 994 P.2d at 713. Thus, at the time
of Riley’s trial and conviction, the three separate mens rea
elements did not need to be individually defined, although

    3
      Like Leavitt, the two unpublished, non-binding cases on which the
State relies provide nearly identical discussions of Nika, so the same
analysis applies. See Adams, 2016 WL 315171 at *2 & n.3; Canape,
2016 WL 2957130 at *2 n.5.
                      RILEY V. FILSON                        9

each element needed to be proven beyond a reasonable
doubt.

    Byford further emphasized the distinction between
definitions and elements. The Nevada Supreme Court
concluded there were two separate problems with the
Kazalyn instruction: it defined only premeditation without
defining deliberation and it mandated a finding of first-
degree murder if the jury found only premeditation, which
erased deliberation as a distinct mens rea element. Byford,
994 P.2d at 713–14. The court thus distinguished between
the need to articulate each of the elements and the need to
define those elements.

     However, the State argues that whether these statutory
terms are separate elements or require separate definitions is
functionally the same issue where the State defines those
elements as effectively encompassing each other. The thrust
of the State’s position is that, despite Hern’s conclusion that
first-degree murder consisted of three separate mens rea
elements and that “all three elements . . . must be proven
beyond a reasonable doubt,” Hern, 635 P.2d at 280, the
Nevada Supreme Court understood those elements to mean
functionally the same thing and merged the three into a
single concept of intent.

    The State’s position fails in light of the unequivocal
language in Hern and the principle that “a state court is not
free to define an element out of existence” because “every
element of a crime must be proven beyond a reasonable
doubt.” Goldyn v. Hayes, 444 F.3d 1062, 1070 (9th Cir.
2006). Applied here, the Nevada Supreme Court is not free
to define the established element of deliberation out of
existence by subsuming it within premeditation, which is the
effect of the Kazalyn instruction given during Riley’s trial.
10                        RILEY V. FILSON

    Ultimately, neither Leavitt nor the two non-precedential
cases undermine Riley I’s interpretation of 1991 Nevada law
as announced in Hern. These three cases’ reliance on Nika,
and its focus on the fact that the Nevada Supreme Court did
not require separate definitions of the statutory mens rea
elements when Hern was decided, are irrelevant to Riley I’s
interpretation of Nevada law concerning whether the mens
rea terms were separate elements. 4 Thus, these cases do not
constitute a change in the relevant law required to support
the State’s Rule 60(b)(6) motion. Because there has been no
change in the law, the central factor in this analysis, we do
not reach the other factors.

     C. Deference to the Nevada Supreme Court

     Our interpretation of Nevada’s first-degree murder
statute affords considered respect and deference to the
Nevada Supreme Court. Hern was good law when Riley’s
conviction became final in 1991 and clearly recognized that
all three mens rea elements of first-degree murder must be
proven beyond a reasonable doubt. Hern, 635 P.2d at 280.
The Nevada Supreme Court’s recent pronouncement about
the required elements for first-degree murder, Byford,
confirms the same elements recognized in Hern. Byford,
994 P.2d at 713–14; see also Riley I, 786 F.3d at 724.

    To be sure, the Nevada Supreme Court did take a short
detour in its thinking about mens rea. Along the way from
Hern in 1981 to Byford in 2000, the court “changed its mind”
and, in 1992 in Powell, held that there is one, unified mens
     4
       For the same reason, the State’s reliance on Babb v. Lozowsky,
719 F.3d 1019, 1030 (9th Cir. 2013), for the proposition that “this Court
recognized that the Constitution does not compel a state to discreetly
[sic] define the term ‘deliberate’ by giving it a different meaning than
the term ‘premeditated’” is inapposite.
                       RILEY V. FILSON                        11

rea element: “‘deliberate, premeditated and willful are a
single phrase, meaning simply that the actor intended to
commit the act and intended death to result.’” Riley I,
786 F.3d at 723–24 (quoting Powell, 838 P.2d at 927,
vacated on other grounds, 511 U.S. 79 (1994)). But, in
2000, “the Nevada Supreme Court again reversed course,
abrogating Powell” by holding in Byford that the first-degree
murder statute includes three separate mens rea elements.
Riley I, 786 F.3d at 724. Byford explained that “in Powell
we overlooked earlier pronouncements of this court which
recognized that ‘deliberate’ and ‘premeditated’ define
distinct elements.” Byford, 994 P.2d at 713–14 (citing Hern,
635 P.2d at 280). In interpreting Byford, Nika explained it
amounted to a “change in state law” that “abandoned the line
of cases starting with Powell.” Nika, 198 P.3d at 847, 849.
So for a short period—from 1992 to 2000—Nevada operated
under the principle that the three elements were merged.
However, this occurred after Riley’s conviction was final.
Thus, before and after Powell, the Nevada Supreme Court
interpreted its first-degree murder statute to include three
distinct mens rea elements—an interpretation to which we
defer.

    Because there was no change in Nevada law that affects
Riley I’s interpretation of the required elements for first-
degree murder in Nevada when Riley’s conviction became
final, the district court did not abuse its discretion by denying
the State’s motion under Rule 60(b)(6). The judgment of the
district court is AFFIRMED.
