                                                                               FILED
                            NOT FOR PUBLICATION                                DEC 17 2009

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



                            FOR THE NINTH CIRCUIT


CHRISTOPHER GARTH WILLIAMS,                      No. 08-16644

             Petitioner - Appellant,             D.C. No. 2:03-CV-00298-RCJ-RJJ

  v.
                                                 MEMORANDUM *
JAMES SCHOMIG,

             Respondent - Appellee.


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

                     Argued and Submitted December 8, 2009
                            San Francisco, California

Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.

       Appellant Christopher Williams (Williams) challenges the district court’s

denial of his habeas petition, contending that his constitutional rights were violated

because the jury instructions on first-degree murder did not define “willful” and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
“deliberate.” Because Williams’s habeas petition was filed after 1996, his claim is

governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See

Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009).

      “Under AEDPA, [Williams’s] petition can be granted only if the state court

determination resolving his claims was contrary to, or involved an unreasonable

application of, clearly established Federal law . . .” Id. (citation and internal

quotation marks omitted). It is clearly established federal law as set forth by the

Supreme Court, that an instructional error on an element of the offense may

constitute a constitutional violation and that harmless error analysis is appropriate.

See Hedgpeth v. Pulido, — U.S. —, 129 S. Ct. 530, 532 (2008); Neder v. United

States, 527 U.S. 1, 8 (1999); In re Winship, 397 U.S. 358, 364 (1970). In

“determining whether a constitutional error is harmless,” the test “is whether it

appears beyond a reasonable doubt that the error complained of did not contribute

to the verdict obtained.” Neder, 527 U.S. at 15 (citations and internal quotation

marks omitted).

      The trial court erred in giving the Kazalyn1 instruction to the jury. Nika v.

State, 198 P.3d 839 (Nev. 2008). However, the Nevada Supreme Court’s denial of

      1
        The instruction given was derived from Kazalyn v. State, 825 P.2d 578
(Nev. 1992), and made no distinction among the first-degree murder elements of
premeditation, deliberation and willfulness.

                                           2
Williams’s instructional error claim was not contrary to or an unreasonable

application of governing Supreme Court precedent. Overwhelming evidence in the

record convinces us beyond a reasonable doubt that use of the Kazayln instruction

did not affect the verdict. See Neder, 527 U.S. at 19-20 (concluding that

instructional error is harmless where the record contained no evidence that could

rationally lead to a contrary finding).

      Because Williams is unable to make the requisite showing, we decline to

expand the certificate of appealability. See Mendez v. Knowles, 556 F.3d 757, 770-

71 (9th Cir. 2009).

      AFFIRMED.




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