                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 23 2013

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



                           FOR THE NINTH CIRCUIT


BARBARA A. PINKSTON,                             No. 11-15993

              Petitioner - Appellee,             D.C. No. 2:07-cv-01305-KJD-LRL

  v.
                                                 MEMORANDUM*
SHERYL FOSTER; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,

              Respondents - Appellants.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                        Argued and Submitted July 20, 2012
                            San Francisco, California

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

       The District Court granted Barbara Pinkston’s petition for a writ of habeas

corpus under 28 U.S.C. § 2254, based on Ground Three of her petition. The State




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of Nevada appeals. We reverse the district court’s judgment and remand the case

for consideration of Pinkston’s remaining claims.

      A petitioner generally must exhaust available state remedies before a federal

court may hear her habeas petition. 28 U.S.C. § 2254(b); see Smith v. Baldwin, 510

F.3d 1127, 1137-38 (9th Cir. 2007) (en banc). Pinkston did not present the Nevada

Supreme Court with the opportunity to decide her claim that the lack of distinction

between premeditation and deliberation in the jury instructions violated her federal

due process rights. Her direct appeal to that court on this instructional issue alleged

only a violation of state due process. Her state habeas petition argued that appellate

counsel’s failure to federalize the jury instruction claim and failure to seek

rehearing after Byford v. State, 994 P.2d 700 (Nev. 2000), constituted ineffective

assistance of counsel.

      Nonetheless, her claim is now technically exhausted because no state

remedies remain available. See Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

If Pinkston were to file for relief in state court, her claim would be denied as

untimely under well-established and consistently-applied Nevada state law.1 See



      1
        The state argues that the Nevada Supreme Court’s decision in Nika v. State,
198 P.3d 839 (Nev. 2008), reopened the state courts for one year to hear Pinkston’s
claim. Regardless of whether or not we agree, over a year has passed since Nika,
and any return to state court at this point would be untimely.

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Nev. Rev. Stat. § 34.726(1) (requiring that post-conviction petitions be filed within

one year of the later of the entry of the judgment of conviction or the remittitur

from the state Supreme Court after an appeal).

      When a federal habeas petitioner is procedurally barred from presenting her

claim in state court, as Pinkston is here, we consider the claim procedurally

defaulted for purposes of federal habeas review. See Baldwin, 510 F.3d at 1138. A

federal court can consider a procedurally-defaulted claim only if the petitioner

demonstrates cause for the default and prejudice resulting from the alleged

violation of federal law or establishes that failure to consider the claim would

result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.

722, 750 (1991). Pinkston can show neither.

      Pinkston argues that she can demonstrate cause and prejudice by means of

ineffective assistance of counsel, because her counsel on direct appeal did not

claim that the use of the Kazalyn instruction violated Pinkston’s federal due

process rights. See Kazalyn v. State, 825 P.2d 578 (Nev. 1992); Murray v. Carrier,

477 U.S. 478, 488 (1986) (holding that ineffective assistance of counsel can be

cause for procedural default). Under Strickland v. Washington, 466 U.S. 668, 687

(1984), a defendant’s right to counsel is violated if (1) counsel’s performance was

deficient and (2) the deficient performance prejudiced the defendant. To meet this


                                          3
test, the defendant must show that counsel’s performance “fell below an objective

standard of reasonableness . . . under prevailing professional norms,” id. at 688,

and that “counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable,” id. at 687.

       The Nevada Supreme Court ruled on Pinkston’s ineffective assistance of

counsel claim in her state post-conviction appeal. The court was not persuaded that

appellate counsel’s failure to federalize the jury instruction claim and failure to

seek rehearing after Byford rendered counsel ineffective.

              [T]he evidence supporting Pinkston’s first-degree murder
              charge was significant, as described above. Pinkston’s
              trial counsel adequately argued that the evidence did not
              indicate premeditation and deliberation. Pinkston failed
              to show a reasonable probability that we might have
              decided this issue differently had counsel argued it the
              way she now claims he should have.

       We review Pinkston’s ineffective assistance of counsel claim de novo

because both parties assumed the application of this standard, the issue was not

briefed, and Pinkston’s claim fails on even de novo review.

       The district court found ineffective assistance of counsel on the basis of our

decision in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007). It concluded that

Pinkston’s claim would have been a winning issue on federal habeas review

because, as Polk held, the Kazalyn instruction violated federal due process. Our


                                             4
decision in Babb v. Lozowsky, No. 11-16784, 2013 WL 136033, at *5, (9th Cir.

Jan. 11, 2013), however, recognizes that Polk has been abrogated by the Nevada

Supreme Court’s holding in Nika v. State, 198 P.3d 839 (Nev. 2008). In Nika, the

Nevada Supreme Court explained that Byford was a change in state law, rather than

a clarification, as the Polk court had assumed. Id. at 849. The holding in Polk that

the Kazalyn instruction violated federal due process no longer dictates a finding

that the claim would have won on these grounds. Babb, No. 11-16784 at *6.

      There is no established federal law requiring a state to construe willfulness,

premeditation, and deliberation as three separate elements of murder, in line with

Byford, as distinguished from one element of mens rea, as in Kazalyn. See Babb,

No. 11-16784 at *7. The instruction did not violate Pinkston’s federal due process

rights at the time the instruction was given at Pinkston’s trial. That remained true

when the briefs were filed in Pinkston’s appeal. It was not deficient performance

for her appellate counsel not to argue what was, at the time, a losing proposition.

See Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001) (failure to raise a

weak issue on appeal did not constitute ineffective assistance of counsel); Miller v.

Kenney, 882 F.2d 1428, 1434-35 (9th Cir. 1989) (same).

      To be sure, if Pinkston’s counsel had alleged that the instruction violated

Pinkston’s federal due process rights, her claim would have presumably been


                                          5
exhausted in state court and we could reach the merits here. Our decision in Babb

makes clear that the failure to apply the Byford instruction to cases that were not

final at the time Byford was decided violates a defendant’s federal due process

rights. See Babb, No. 11-16784 at *9-10 (citing Bunkley v. Florida, 538 U.S. 835

(2003), and Griffith v. Kentucky, 479 U.S. 314 (1987)). Were we to reach the

merits, we could apply our holding in Babb that the failure to apply the Byford

instruction to a pending case was, in fact, a violation of federal due process, though

for reasons different than those articulated by the Polk court. Thus, the failure to

federalize the claim could have prejudiced Pinkston, unless the error was held to be

harmless.

      Nonetheless, we cannot conclude that counsel’s failure to federalize a state

claim, when the state claim itself was not a winning one at the time the appeal was

taken, was deficient performance under Strickland. This is particularly true when

the underlying basis for the potentially-successful claim—the failure to apply

Byford to a pending case violated federal due process—differs from what the basis

for the original federalized claim would have been—the Kazalyn instruction

violated federal due process even prior to Byford. Counsel is not required to

anticipate that state law may change and that state courts will fail to apply that

change appropriately such that the defendant will have to seek a remedy through


                                           6
federal habeas proceedings. Because she cannot show her appellate counsel’s

performance was deficient under the Strickland standard, Pinkston’s attempt to

assert cause on the basis of ineffective assistance of counsel fails.

      We also cannot say that counsel’s failure to seek rehearing after Byford rose

to the level of deficiency required under Strickland. The Nevada Supreme Court

decided Pinkston’s direct appeal just days after it issued its opinion in Byford.

Pinkston’s direct appeal clearly raised the instructional issue as a matter of state

law, and the Supreme Court summarily dismissed that claim as one of many that

“lack merit or need not be addressed.” While it may have been prudent thereafter to

ask the Nevada Supreme Court to apply Byford explicitly to Pinkston’s case, it was

not unreasonable for counsel to have inferred from that court’s previous decision

that such action would be futile and that the change in instruction would make no

difference before that court. The Nevada Supreme Court subsequently confirmed

that this was its position when it denied Pinkston’s ineffective assistance of

counsel claim on post-conviction review.

      Pinkston offers no other argument for cause to overcome the default, nor

does she contend that failure to consider the petition would result in a fundamental

miscarriage of justice. We hold that Ground Three of her petition is procedurally

defaulted and therefore do not reach the merits of that claim. We reverse the


                                           7
district court’s judgment and remand for further consideration of the remaining

grounds of Pinkston’s petition.

      REVERSED and REMANDED.




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