                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BILLY RAY RILEY,                      No. 11-99004
       Petitioner-Appellant,
                                        D.C. No.
             v.                 3:01-cv-00096-RCJ-VPC

E. K. MCDANIEL,
       Respondent-Appellee.             OPINION


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

                 Argued and Submitted
          April 8, 2015—Pasadena, California

                   Filed May 15, 2015

  Before: Stephen Reinhardt, M. Margaret McKeown,
       and Milan D. Smith, Jr., Circuit Judges.

              Opinion by Judge Reinhardt
2                      RILEY V. MCDANIEL

                           SUMMARY*


                          Habeas Corpus

     The panel reversed the district court’s denial of Billy Ray
Riley’s habeas corpus petition challenging his Nevada
conviction and death sentence for murder, and remanded with
instructions to grant the writ unless the State of Nevada elects
to pursue a new trial within a reasonable amount of time.

    Reviewing de novo, the panel held that because Nevada
law treated deliberation as a distinct element of first-degree
murder at the time Riley was convicted and at the time his
conviction became final, the district court’s use of an
instruction during the guilt phase of trial defining deliberation
as a part of premeditation, rather than as a separate element,
constituted a due process violation.

    The panel held that Riley was prejudiced because the jury
was presented with significant evidence of Riley’s cocaine
intoxication and emotional agitation – evidence which might
well have created a reasonable doubt as to whether the
murder was committed with deliberation as well as with
premeditation.




  *
    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. MCDANIEL                        3

                         COUNSEL

David S. Anthony (argued), Assistant Federal Public
Defender, Rene L. Valladares, Federal Public Defender, and
Sarah Hensley, Assistant Federal Public Defender, Las
Vegas, Nevada, for Petitioner-Appellant.

Robert E. Wieland (argued), Senior Deputy Attorney General,
Appellate Division; Adam Paul Laxalt, Attorney General,
Reno, Nevada, for Respondent-Appellee.


                          OPINION

REINHARDT, Circuit Judge:

                       I. Introduction

    Billy Ray Riley was convicted of the robbery and murder
of Albert “Ramrod” Bollin in 1990. With respect to the
robbery conviction, Riley was adjudicated to be an habitual
criminal and sentenced to life without the possibility of
parole. With respect to the murder conviction, Riley was
sentenced to death. Only the murder conviction and death
sentence are challenged here.

    Riley raises a number of ineffective assistance of trial
counsel and instructional error challenges to his murder
conviction and sentence. As pertinent here, Riley argues that
one of the guilt-phase instructions given at his trial violated
his due process rights by advising the jury that if it finds
“premeditation,” it has necessarily found “deliberation.” This
instruction, Riley contends, relieved the state of its burden to
prove every element of the offense. The district court found
4                          RILEY V. MCDANIEL

that the state trial court had committed constitutional error in
giving this instruction, but concluded that the error was
harmless.

    We agree that constitutional error occurred, but conclude
that Riley was prejudiced as a result, and that his murder
conviction and death sentence are therefore invalid. The
unchallenged robbery conviction and the accompanying
sentence of life without parole remain in effect.1

                                  II. Facts2

    Riley and his girlfriend, Kim Johnson, were guests at the
home of Leotis Gordon, where Bollin, a drug dealer, was
living. Darrell Lee Jackson – the only eyewitness to the
murder – testified as follows: Riley, Bollin, and Jackson were
together in a bedroom-lounge when Riley became “emotional
and angry about the treatment he had received from drug
dealers,” and suggested that he would “start robbing drug
dealers who did not treat him appropriately.” Jackson and
Bollin gave some cocaine to Riley, who smoked it as Bollin
took a shower. After Bollin finished his shower, the three
men moved to Bollin’s room. Riley told Bollin that his
cocaine was “mine now,” and Bollin replied, “you’re going
to have to kill me first”; Riley then asked Bollin whether he


    1
    Because we grant relief on this claim, we need not address the other
guilt- and penalty-phase claims that Riley raises in his petition. We note,
however, that the record reflects multiple instances of egregiously
deficient performance on the part of Riley’s trial counsel, with respect to
both the guilt and penalty phases, due at least in part to the seriously
inadequate public defense infrastructure in Clark County some quarter of
a century ago.
    2
        See Riley v. State, 808 P.2d 551, 552–54 (Nev. 1991).
                        RILEY V. MCDANIEL                                5

was “ready to die,” and Bollin requested permission to “finish
taking this hit.” After Bollin put down the pipe, he told Riley
that he was ready to die, and Riley shot him in the chest with
a shotgun.

     Johnson also testified: she was cooking in the kitchen
when she heard Bollin say to someone, “if you’re going to
kill me, just kill me,” and then she heard a gunshot. Johnson
found Riley holding the shotgun and Bollin clutching his
chest. She left the room and went to speak with Gordon in his
room across the hall when Riley entered and told her to get a
box of shotgun shells.

    Gordon, too, testified: he was awakened by a shotgun
blast, and was trying to climb out his window when Riley
appeared in the doorway, holding the shotgun, and told him
to “just hold it.” Riley told Jackson to take Bollin’s money
and drugs, and Gordon, who was afraid of Riley, then
suggested that Riley rob another drug dealer, “L.L.” Riley,
Jackson, Johnson, and Gordon looked for “L.L.” but did not
find him at his home, so they drove around in another
woman’s car for some time. Eventually, the group
disbanded.3

                     III. Standard of Review

    Riley’s challenge to the premeditation instruction given
at his trial was presented not in his first state habeas petition,
which was adjudicated on the merits, but in his second state


 3
    We do not discuss the other evidence presented at trial – specifically,
ballistics evidence presented by a coroner and the amateur forensic
measurements made by a defense investigator – because it is not relevant
to the claim on which we grant relief.
6                       RILEY V. MCDANIEL

habeas petition, which was denied on a procedural ground,
and not adjudicated on the merits. See Lambert v. Blodgett,
393 F.3d 943, 966 (9th Cir. 2004). Normally, procedural
default will preclude consideration of the claim on federal
habeas review. However, the procedural ground at issue here,
Nev. Rev. Stat. § 34.810, has been held to be inadequate to
bar federal review because the rule was not regularly and
consistently applied. Valerio v. Crawford, 306 F.3d 742, 778
(9th Cir. 2002).4

   Because no state court has adjudicated this claim on the
merits, and the state has established no procedural bar to its
consideration, the strictures of 28 U.S.C. § 2254(d) do not
apply, and our review is de novo.5 Pirtle v. Morgan, 313 F.3d
1160, 1167–68 (9th Cir. 2002).

                 IV. Premeditation Instruction

   Riley challenges a jury instruction given during the guilt
phase of his trial. This instruction is commonly referred to by


    4
    Valerio considered the application of § 34.810 at a time prior to the
denial of Riley’s second state habeas petition. However, as the district
court correctly concluded, the state bore – and failed to meet – the burden
of demonstrating that, since Valerio, state courts have begun to regularly
and consistently apply § 34.810 to habeas cases. See King v. Lamarque,
464 F.3d 963, 967 (9th Cir. 2006); Bennett v. Mueller, 322 F.3d 573,
585–86 (9th Cir. 2003).
    5
    Hence, we need not address Riley’s argument that the district court’s
dismissal of his first federal petition – filed before April 24, 1996 – for
failure to exhaust constituted an administrative closure with leave to
reopen, and that the Antiterrorism and Effective Death Penalty Act
therefore does not apply. See Riner v. Crawford, 415 F. Supp. 2d 1207,
1209 n.1 (D. Nev. 2006). Riley’s motion to take judicial notice of
documents in support of this argument is therefore denied as moot.
                        RILEY V. MCDANIEL                                 7

the name of the Nevada Supreme Court case in which it was
first discussed, Kazalyn v. State, 825 P.2d 578 (Nev. 1992),
but it was used by Nevada trial courts – as in Riley’s own
case – prior to that time. The instruction defined deliberation
as a part of premeditation, rather than as a separate element.

         Premeditation is a design, a determination to
         kill, distinctly formed in the mind at any
         moment before or at the time of the killing.

         Premeditation need not be for a day, an hour
         or even a minute. It may be as instantaneous
         as successive thoughts of the mind. For if the
         jury believes from the evidence that the act
         constituting the killing has been preceded by
         and has been the result of premeditation, no
         matter how rapidly the premeditation is
         followed by the act constituting the killing, it
         is willful, deliberate and premeditated murder.

No other instruction at Riley’s trial gave independent
meaning to “deliberate.”6

   It is clear, however, that at the time Riley was tried in
1990, and at the time his conviction became final in 1991,7


  6
    In fact, another instruction exacerbated the problem; it informed the
jury that the difference between first- and second-degree murder is that the
latter is committed “without the admixture of premeditation.” This
instruction made no reference to deliberation.
  7
   The Nevada Supreme Court now recognizes that defendants must be
afforded the benefit of changes in state law narrowing the scope of a
criminal statute that occur prior to their convictions becoming final. See
Nika v. State, 198 P.3d 839, 850 & nn.72–74 (Nev. 2008) (applying
8                       RILEY V. MCDANIEL

deliberation was a discrete element of first-degree murder in
Nevada. In Hern v. State, 635 P.2d 278, 280 (Nev. 1981),
decided a decade earlier,8 the Nevada Supreme Court
explained 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.” Then, a year after
Riley’s conviction became final, the Nevada Supreme Court
changed its mind in Powell v. State, 838 P.2d 921 (Nev.
1992), vacated on other grounds, 551 U.S. 79 (1994). In
approving the use of the Kazalyn instruction, it held that
“deliberate, premeditated and willful are a single phrase,
meaning simply that the actor intended to commit the act and
intended death to result.” Id. at 927. It called the three
elements “redundan[t].” Id. Less than a decade later, in
Byford v. State, 994 P.2d 700 (Nev. 2000), the Nevada
Supreme Court again reversed course, abrogating Powell. It
concluded that Powell – and the Kazalyn instruction it
approved – had “confus[ed] . . . premeditation and
deliberation,” and “underemphasized the element of
deliberation.” Id. at 713. The instruction, the court held,
“blur[red] the distinction between first- and second-degree
murder,” and subsequent case law’s “further reduction of
premeditation and deliberation to simply ‘intent’
unacceptably carrie[d] this blurring to a complete erasure.”
Id.


Bunkley v. Florida, 538 U.S. 835, 841–42 (2003)). At the time that Riley’s
conviction became final, however, Nevada courts gave such changes in
state law only prospective effect. See Garner v. State, 6 P.3d 1013, 1025
(Nev. 2000). The distinction is irrelevant for present purposes.
    8
   The Hern rule was by no means novel. See, e.g., State v. Hing, 16 Nev.
307, 308 (1881) (“[W]illfulness, deliberation, and premeditation . . . are
essential constituents of the crime of murder of the first degree.”).
                    RILEY V. MCDANIEL                        9

     In Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), we
concluded that the use of the Kazalyn instruction violated the
Due Process Clause of the United States Constitution. Polk
held that the instruction “relieved the state of the burden of
proof on whether the killing was deliberate as well as
premeditated.” Id. at 910 (applying Sandstrom v. Montana,
442 U.S. 510, 521 (1979)). In Polk, the petitioner had been
convicted after Powell but before Byford; we concluded that
Nevada law during that time included deliberation as a
distinct element because, we reasoned, Byford was not a
change in Nevada law but rather a “reaffirm[ation]” that its
first-degree murder statute contained three mens rea
elements. Id. After Polk was decided, however, the Nevada
Supreme Court clarified in Nika v. State, 198 P.3d 839, 849
(Nev. 2008), that “Byford announced a change in state law.”
On that basis we partially overruled Polk, holding in Babb v.
Lozowsky, 719 F.3d 1019, 1028–30 (9th Cir. 2013), that the
use of the Kazalyn instruction between Powell and Byford did
not constitute a due process violation because during that
time, first-degree murder in Nevada included only one
(merged) mens rea element, which the instruction accurately
described. Babb did nothing, however, to disturb Polk’s
underlying analysis: Polk continues to dictate that the
Kazalyn instruction violates due process if, at the time it was
given, Nevada law required the state to prove deliberation as
a discrete mens rea element.

    As already noted, at the time of Riley’s trial and at the
time his conviction became final, Nevada first-degree murder
law did indeed contain three separate mens rea elements. In
Byford and Nika, the Nevada Supreme Court reiterated that
Powell, decided in 1992, after Riley’s conviction became
final, represented a departure from prior precedent holding
that the state was required to prove deliberation separately
10                  RILEY V. MCDANIEL

from premeditation. Byford explained that it was a “rather
recent phenomenon” that deliberation was “neglect[ed] . . . as
an independent element,” and traced this trend to Powell,
which “overlooked earlier pronouncements [such as Hern]
which recognized that ‘deliberate’ and ‘premeditated’ define
distinct elements.” 994 P.2d at 713–14. Nika characterized
Byford as “abandon[ing] the line of cases starting with
Powell.” 198 P.3d at 847 (emphasis added); see also id. at
849 (“Byford ‘abandoned’ that precedent – Powell and its
progeny.”).

    Because Nevada law treated deliberation as a distinct
element of first-degree murder at the time Riley was
convicted and at the time his conviction became final, the use
of the Kazalyn instruction at his trial constituted a due
process violation under the United States Constitution. Polk,
503 F.3d at 910.

                       V. Prejudice

    To obtain relief, Riley must also show that this
instructional error “had a substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). As we held in Polk,
if “we are left in grave doubt about whether the jury would
have found deliberation on [Riley’s] part if it had been
properly instructed,” we must conclude that the error was not
harmless. 503 F.3d at 913 (internal quotation marks omitted).
We are indeed left in grave doubt. The jury was presented
with significant evidence of Riley’s cocaine intoxication and
emotional agitation – evidence which might well have created
a reasonable doubt as to whether the murder was committed
with deliberation as well as with premeditation.
                    RILEY V. MCDANIEL                       11

     To convict a defendant of first-degree murder under
Nevada law, a jury must find that he committed the murder
with “coolness and reflection.” Byford, 994 P.2d at 714. The
defendant must have engaged in a “dispassionate weighing
process and consideration of consequences before acting”; if
his decision to kill was “formed in passion,” and that passion
had not subsided by the time the murder was carried out, it
was not deliberate. Id. The element of deliberation has been
so understood by Nevada courts since well before Riley’s
trial. Ogden v. State, 607 P.2d 576, 579 (Nev. 1980),
reiterated that “deliberate” should be given its “ordinary
dictionary meaning[],” citing with approval People v.
Anderson, 447 P.2d 942, 948 (Cal. 1968) (holding that a
“verdict of murder in the first degree on a theory of a wilful,
deliberate, and premeditated killing is proper only if the
slayer killed as a result of careful thought and weighing of
considerations; as a [d]eliberate judgment or plan; carried on
coolly and steadily” (citations, internal quotation marks, and
alterations omitted)).

     Moreover, “it is well-recognized [under Nevada law] that
in a prosecution for murder evidence of the intoxication of the
accused is relevant for the purpose of a jury determination
whether the defendant lacked the capacity to deliberate and
premediate [sic] required of first degree murder.” Jackson v.
State, 438 P.2d 795, 797 (Nev. 1968) (citing a number of
cases from as early as 1877); see also Nev. Rev. Stat.
§ 193.220 (“[W]henever the actual existence of any particular
purpose, motive or intent is a necessary element to constitute
a particular species or degree of crime, the fact of the
person’s intoxication may be taken into consideration in
determining the purpose, motive or intent.”).
12                  RILEY V. MCDANIEL

    The jury learned at trial that at the time Riley committed
the murder, he was very upset – “he started crying, had tears
in his eyes, talking about he was tired of stupid shit and about
living with dope.” The jury also learned that Riley had been
smoking crack cocaine prior to the murder, including
smoking a rock almost immediately before forming the intent
to kill – and then shooting – Bollin. These uncontested facts
could easily have led the jury to have a reasonable doubt
whether Riley had acted with “coolness and reflection” or
undertaken a “dispassionate weighing process.”

     The state points out that there was some evidence that
could have supported a finding of deliberation – namely, that
after Bollin told Riley that he would have to kill him in order
to take his drugs, Riley asked Bollin whether he was ready to
die, and allowed him to take a final hit before shooting him.
It is true that this evidence, when viewed in the light most
favorable to the prosecution, would have permitted a rational
trier of fact to find deliberation. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). But the claim we consider here is
one of instructional error, not of insufficiency of the
evidence; a showing that evidence exists which could
rationally be viewed as reflecting deliberation is not enough
to establish that the error was harmless. “[W]e cannot say,
with fair assurance,” that the jury, if properly instructed,
would have concluded beyond a reasonable doubt that Riley’s
verbal exchange with Bollin, when considered alongside the
evidence that he was tearful and high, demonstrated not only
willfulness and premeditation, but also cool, reflective
deliberation. See Arnold v. Runnels, 421 F.3d 859, 868 (9th
Cir. 2005).

    Our conclusion that this error was not harmless is further
bolstered by the prosecutor’s heavy reliance on the instruction
                    RILEY V. MCDANIEL                       13

in his closing argument. He read the instruction aloud, and
erroneously reiterated that “[t]he difference between second-
degree murder and first-degree murder is that second-degree
murder is an intentional, malicious killing but without
premeditation.” The prosecutor repeatedly argued to the jury
that Riley had engaged in premeditation – the only mens rea
element that the instruction required it to find – through
“successive thoughts of the mind.” He informed the jury that
in Nevada, first-degree murder is

       just this: It may be as instantaneous as
       successive thoughts of the mind. . . . You have
       to aim the shotgun. That’s a thought. Pull the
       hammer all the way back through half cock.
       That’s a thought. Pull the trigger after you
       have pulled the hammer. That’s a thought.
       Those are successive thoughts of the mind.
       And that’s the reason this is first-degree
       murder.

    The state makes two arguments in its attempt to
undermine Riley’s showing of prejudice, but neither is
persuasive.

    First, the state argues that the error was harmless because
defense counsel did not argue that Riley was too upset or
intoxicated to deliberate, but rather asserted that another
person – namely, Jackson – had been the shooter. Regardless,
the state bore the burden of proving each and every mens rea
element of first-degree murder beyond a reasonable doubt,
even though the defense theory of the case did not
specifically put those elements at issue. This is presumably
why the prosecutor paid considerable attention to the question
14                      RILEY V. MCDANIEL

of Riley’s mental process and its bearing on the distinction
between first- and second-degree murder.

      Second, the state observes that the jury was instructed on,
and could have convicted Riley under, the felony-murder
rule, and argues that any instructional error regarding
deliberation – which the jury need not find to convict under
the felony-murder rule – was therefore harmless.9 Our
precedent makes clear, however, that the relevant question is
“not simply whether we can be reasonably certain that the
jury could have convicted [Riley] based on the valid theory
of felony murder,” but whether “we can be reasonably certain
. . . that the jury did convict [him] based on the valid felony
murder theory.” Babb, 719 F.3d at 1035 (citations omitted).

    The jury in Riley’s case was not asked to specify under
which theory it found Riley guilty of first-degree murder; it
completed only a general verdict form. “A conviction based
on a general verdict is subject to challenge if the jury was
instructed on alternative theories of guilt and may have relied
on an invalid one.” Hedgpeth v. Pulido, 555 U.S. 57, 58
(2008) (per curiam); see also Babb, 719 F.3d at 1035 (“When
reviewing convictions . . . this Court is limited in its ability to
decipher a verdict, and cannot simply substitute its judgment
for that of the fact finder. General verdict forms can further
blur an already opaque decisionmaking process, leaving us
with the sort of grave doubt that prevents us from concluding
an error was harmless.” (citations omitted)). In Babb, we
concluded that we could “discern with reasonable
probability” that the jury had in fact convicted Babb based on


 9
   Although we reject the state’s conclusion, we do not disagree with its
premise that the jury could have convicted Riley of first-degree murder
based on the felony-murder rule; the jury also found him guilty of robbery.
                    RILEY V. MCDANIEL                        15

a felony murder theory despite the absence of a special
verdict because “during closing argument, the prosecutor
focused almost exclusively on the felony murder theory,”
and, more important, because “the jury was specifically
instructed to only consider premeditated murder if felony
murder did not apply.” 719 F.3d at 1034. When such an
instruction is given, a reasonable certainty that the jury could
have convicted based on a felony-murder theory necessarily
implies a reasonable certainty that the jury did convict based
on that valid theory. Here, though, the prosecutor relied
heavily on the premeditated murder theory and instruction,
and the jury was not told to consider the alternate theories in
a particular order. Unlike in Babb, we have no reason to
believe that the jury in fact decided to convict Riley based on
a felony-murder theory rather than on the more traditional
first-degree murder charge.

    Riley clearly acted wilfully – he intended to kill Bollin –
and with premeditation – he formed that intent prior to
shooting him. However, the evidence of Riley’s cocaine
intoxication and emotional agitation might well have created
reasonable doubt as to the third element of first-degree
murder, the one the court’s instructions failed to identify as
an independent element: deliberation. Because the prosecutor
relied on that failure in his closing argument, repeatedly
returning to the language of the instruction itself in arguing
the premeditated murder theory, and because the general
verdict of guilt does not allow us to determine that the jury
based its conviction on a different theory, the error was not
harmless. As we are in “grave doubt,” we conclude that Riley
was prejudiced.
16                  RILEY V. MCDANIEL

                      VI. Conclusion

    The judgment of the district court is reversed. This case
is remanded with instructions to grant the writ unless the
State of Nevada elects to pursue a new trial within a
reasonable amount of time.

     REVERSED and REMANDED.
