                                                                             FILED
                            NOT FOR PUBLICATION                               NOV 21 2013

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



                           FOR THE NINTH CIRCUIT


JASON EVAN BROWNE,                     )     No. 10-17650
                                       )
      Petitioner - Appellant,          )     D.C. No. 3:07-cv-00290-RCJ-RAM
                                       )
      v.                               )     MEMORANDUM*
                                       )
RENEE BAKER; NEVADA                    )
ATTORNEY GENERAL,                      )
                                       )
      Respondents - Appellees.         )
                                       )

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

                          Submitted November 4, 2013**
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

      Jason Evan Browne appeals the district court’s denial of his petition for a

writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      (1)      Browne first argues that his right to due process under the Fourteenth

Amendment to the United States Constitution was violated when the jury was

improperly instructed on the deliberation element of first degree murder. See Nev.

Rev. Stat. § 200.030(1)(a). We disagree. The Nevada Supreme Court determined

that the instruction regarding deliberation was no longer proper, but that the new

instructional requirements would not apply to defendants whose cases were final

when the new requirements were adopted. See Nika v. State, 124 Nev. 1272,

1287–88, 198 P.3d 839, 850 (2008). We ultimately agreed with the Nevada

Supreme Court’s determination. See Babb v. Lozowksy, 719 F.3d 1019, 1028–30

(9th Cir. 2013). Browne has waived1 any argument that his conviction was not

final before 2000 when the law of Nevada changed.2 In any event, we agree with

the district court that on the facts of this case any error in failing to apply the new

instructional requirements was harmless. See Fry v. Pliler, 551 U.S. 112, 116, 127

S. Ct. 2321, 2325, 168 L. Ed. 2d 16 (2007); Brecht v. Abrahamson, 507 U.S. 619,

637–38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993). Therefore, the district

court did not err.


      1
       Arguments not raised in the opening brief are waived. See Brooks v. City
of San Mateo, 229 F.3d 917, 922 n.1 (9th Cir. 2000); see also Greenwood v. FAA,
28 F.3d 971, 977 (9th Cir. 1994).
      2
          See Byford v. State, 116 Nev. 215, 235–36, 994 P.2d 700, 713 (2000).

                                           2
      (2)    Browne next asserts that his right to confrontation under the Sixth

Amendment to the United States Constitution was violated when evidence

regarding statements by his victim were admitted at his trial. However, on this

record we are unable to say that the Nevada Supreme Court unreasonably

determined3 that certain statements were not hearsay at all,4 and to the extent that

Browne’s right to confrontation was violated by admission of any of the

statements, the error was harmless.5 Again, the district court did not err.

      (3)    Finally, Browne asserts that the Nevada Supreme Court unreasonably

determined that his counsel were not ineffective when they failed to present

evidence of his psychological and mental infirmities to the jury at the guilt phase

of his trial. Not so. Especially when we give the double deference6 we owe in this

area, we are unable to say that it was unreasonable to hold that counsels’ tactical


      3
       See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1174, 155 L. Ed.
2d 144 (2003); see also Williams v. Taylor, 529 U.S. 362, 405–06, 120 S. Ct.
1495, 1519–20, 146 L. Ed. 2d 389 (2000).
      4
       See Tennessee v. Street, 471 U.S. 409, 413–14, 105 S. Ct. 2078, 2081–82,
85 L. Ed. 2d 425 (1985); Winzer v. Hall, 494 F.3d 1192, 1194, 1198–99 (9th Cir.
2007); Shults v. State, 96 Nev. 742, 747–48, 616 P.2d 388, 392 (1980).
      5
       See Brecht, 507 U.S. at 623, 637–38, 113 S. Ct. at 1713–14, 1721–22;
Babb, 719 F.3d at 1033.
      6
       See Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388, 1403, 179 L. Ed.
557 (2011).

                                          3
decision “fell below an objective standard of reasonableness,”7 or, for that matter,

that “there is a reasonable probability that . . . the result of the proceeding would

have been different”8 if the evidence had been presented.

      AFFIRMED.




      7
       See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984).
      8
          Id. at 694, 104 S. Ct. at 2068.

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