F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B I L L Y RA Y R I L E Y , Petitioner-Appellant
,

v.

E. K. M C D A

N I E L , Respondent-Appellee

. No. 11-99004

D.C. No. 3 :01-cv-00096-RCJ -VPC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Robert Clive J ones, District J udg e, Presiding

Arg ued and Submitted April 8, 2015—Pasadena, California

F iled May

15, 2015

B e fore: Stephen Reinhardt, M. Marg aret McKeown, and Milan D. Smith, J r., Circuit J udg es.
Opinion by

J udg e ReinhardtR I L E Y V

. M C D A N I E L 2

SUMMARY *

Habeas Corpus

The panel reversed the district court’s denial of B illy Ray Riley ’ s habeas corpus petition challeng ing his Nevada conviction and death sentence for murder, and remanded with instructions to g rant 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 Neva d a l a w treated deliberation as a distinct element of first-deg ree

m u rder at the time Riley was convicted and at the t i m e h i s conviction became final, the d i s t r i ct court’s use of an instruction during the g uilt 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 p rejudiced because the jury

was p resented with sig nificant evidence of R i l e y ’ s cocaine intox ication and emotional ag itation – evidence which mig ht well h ave created a reasonab le doubt as to whether the murder w as committed with deliberat i o n a s well as with premeditation.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.R I L E Y V

. M C D A N I E L 3

COUNSEL

David S. Anthony ( a r g ued), Assistant F ederal Public Defender, Rene L

. Valladares, F ederal Public Defender, and Sarah Hensley
, Assistant F ederal Public Defender, L a s Veg as, Nevada, for Petitioner-Appellant.

Robert E. W ielan d ( a

r g u ed), Senior Deputy A ttorney General, Appellate Division; Adam Paul L ax a lt, Attorney General, Reno, Nevada, for Respondent-Appellee.

OP INION

REI NHARDT, Circuit J udg e:

I. Introduction

B illy Ray Riley was c onvicted of the robbery and murder of Albe r t “Ramrod” B ollin in 1990. W ith respect to the robbery conviction, Riley was adjudicated t o b e a n h abitual criminal and sentenced to life without the possi bility o f
pa ro le. W ith respect to the murder conviction, Riley was sente n ced to death. O nly the murder conviction a nd death sentence are challeng ed here.

Riley raises a n u mber of ineffective assistance of trial counsel and instr u c t i o nal error challeng es to his murder conviction and sentence. As pertinent here, Riley arg ues that

one of the g uilt-phase i n s t ructions g iven at his trial v iolated his due p rocess rig hts by advising the jury that if it finds “premeditation,” it h as n ecessarily f ound “deliberation.” This instruction, Riley c o ntends, relieved the state of its burden to prove every element of the offense. The district court f oundR I L E Y V

. M C D A N I E L 4

that the state trial court had committed constitutional error in
g iving this instructi o n , b ut concluded that the error was harmless.

W e ag ree that constitutional e r ror occurred, but conclude
t hat Riley w as p rejudiced as a result, and that his m u r d e r

con viction and death sentence are therefore invalid. The unchalleng ed robbery conviction and the accomp any ing sentence of life without parole remain in effect. 1

II. F acts 2

Riley and his g irlfriend, Kim J o hnson, were g uests at the home of L eotis Go rd o n , w here B o llin, a drug dealer, was living

. D arrell L ee J a ckson – the only ey ewitness to the murder – testified as follows: Riley
, B o llin, and J ackson were tog ether in a bedroom-loung e when Riley became “ emotional and ang ry a

bout the treatment he had received from d rug dealers,” and sug g e sted that h e would “ s t a r t robbing d rug dealers who did not treat him appropria t ely .” J ackson a nd B ollin g ave some cocaine to Riley , who smoked it a s B ollin took a shower. After B ollin finished h i s s h ower, the three

men moved to B ollin’s room. Riley told B ollin that his cocaine was “ mine n o w,” and B ollin replied, “y ou’re g oing
to have to k i l l me first”; Riley then asked B ollin whether he

1 B e c a u se w e g ran t relief o n th is claim
, w e n eed n o t ad d ress t h e o th er g u ilt- an d pen alty

- p h ase claim s th at R iley raises in h is p etitio n

. W e n o te, h o w ev er, th at t

h e r eco rd ref

lects m u ltip le in stan ces o f eg reg io u sly d ef icien t p erf

o rm an ce o n th e part o f Riley ’ s trial co u n sel, w ith resp ect to b o th th e g u ilt a n d pen alty p h ases, d u e at least in p art to th e s erio u sly in ad eq u ate p u

b lic d ef en se i n f rastru ctu re in Clark Co u n ty so m e q u arter of

a cen tury ag o

.

2 S ee Riley v. S ta te , 8 0 8 P .2 d 5 5 1 , 5 5 2

– 5 4 (Nev . 1 9 9 1 ).R I L E Y V

. M C D A N I E L 5

was “ready to die,” a

nd B ollin requested permission to “finish taking this hit.” After B ollin put down the pipe, h e told Riley that he was ready to die, and Riley shot h im in the chest with a shotg un.

J ohnson a l s o testified: she w as cooking in the k itchen when she h eard B ollin say t o s o meone, “if y ou’re g oing to kill me, just kill me,” and then she heard a g unshot. J ohnson found Riley h olding the shotg un and B ollin 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 g et a box of shotg un shells.

Gordon, too, testified: he was a wakened by a shotg un blast, and was try ing to cl i m b o u t his window when Riley appeared in the d oorway , holding the shotgu n , and told him
t o “ j ust h old it.” Riley told J a ckson to take B ollin’s mo n e y

a n d d rug s, and Gordon, who was afraid of Riley
, then
sug g ested that Riley rob another d rug deal e r , “L .L .” Riley
, J ackson, J ohnson, and Gordon looked for “L .L .” but did not find him at his hom e , s o t hey drove around in another woman’s c ar for some time. Eventually
, the g roup disbanded. 3

III. Standard of Review

Riley ’s c h alleng e to the premeditation instruction g iven
at his trial was presented not in his first state habeas petition, which w as adjudicated on the merits, but in his second st ate

3 W e d o n o t d i scu ss th e o th er ev i d en ce p resen ted at trial

– sp ecif ically
, b a l listics ev id en ce p resen ted by a co ro n er an d th e am ateu r f o ren sic

m easu rem en ts m ad e b y a d ef en se in v estig ato r

– b ecau se it is n o t relev an t to th e claim

o n w h ichw e g ran t relief

.R I L E Y V

. M C D A N I E L 6

habeas petition, which was denied on a procedural g round, and not adjudicated o n the merits. See Lambert v. Blodgett
, 393 F .3d 9 43, 966 ( 9 t h Cir. 2004). Normally
, procedural default will preclude consid e r ation of the claim o n federal habeas review. However, the procedural g round at issue h ere, Nev. Rev. Stat. § 34.8 1 0
, h a s been held to be inadequate to bar federal review because the rule was not reg ularly a nd consistently applied. Valerio v. Crawford
, 306 F .3d 7 42, 778 (9th Cir. 2002). 4

B e cause no stat e c o u rt has adjudicated this claim on the

me r i ts, and the state has established no procedural bar to its

c o n s i d eration, the strictures of 2 8 U.S.C. § 2254(d) d o not apply
, a nd our review is de novo

. 5 P irtle v. Morgan
, 313 F .3d 1160, 1167–68 (9th Cir. 2002).

IV. P rem editation Instruction

Riley challeng es a jury

instruction g iven during the g u ilt phase of his trial. This instruction is c ommonly referred to b y

4 Va lerio co n sid ered th e ap p licatio n o f § 3 4

. 8 1 0 at a tim e p rio r to th e d en ial o f Riley ’ s sec o n d state h ab eas p etitio n

. Ho w ev er, as th e d istrict

co u rt co rrectly co n clu ded
, th e state b o re – an d f ailed to m eet

– th e b u rd en

o f d em o n stratin g th at, sin ce Va lerio
, state co urts h av e b eg u n to reg u larly

an d co n sisten tly ap p ly § 34 .8 1 0 to h ab eas cases. S ee Kin g v. La ma rq u e , 4 6 4 F.3 d 9 6 3, 9 6 7 (9 th Cir. 2 0 0 6 ); Ben n ett v. Mu eller
, 32 2 F.3 d 5 7 3
, 5 8 5

– 8 6 (9 th

Cir. 2 0 0 3 ).

5 Hen ce, w e n eed n o t ad d ress Riley ’ s arg u m en t th at th e d istrict co u rt’ s d ism issal o f h is f

irst f ed eral p e t itio n

– f

iled b ef o re A p ril 2 4
, 1 9 96

– f

or f ailu re to e x h au st co n stitu ted an ad m in istrativ e clo su re w ith leav e to

reo p en , an d th at th e A n titerro rism an d Ef f ectiv e Death P en alty A ct t h e ref o re d oes n o t ap p ly

. S

ee Rin er v. Cra w

fo rd
, 4 1 5 F. Su

p p

. 2 d 1 2 0 7
, 1 2 0 9 n .1 (D. Nev

. 2 0 0 6). R iley ’ s m o t i o n t o tak e j u d icial n otice of d o cu m en ts in

su p p o rt o f th i s arg u m en t is th eref

o re d en ied as m o o t.R I L E Y V

. M C D A N I E L 7

the name of the Nevada Supreme Court case in which it was first d iscus s e d, Kazalyn v. State
, 825 P.2d 578 (Nev. 1992), b u t it was u sed by Nevada trial courts – as in Riley ’s o w n

case – prior to that time. T he instruction defined deliberation

as a part of premeditation, rather than as a separate element.

Premeditation is a d e sig n, a d etermination to kill, distinctly formed in the mind at any moment before or at the time of the killing

.

Premeditation n eed not be for a day
, an hour

or even a minute. I t may be as instantaneous

as successive thoug hts of the mind. F or if the jury believes from t h e e vidence that the act constituting the killing has been preceded b y and h as been the r esult o f pre m e d itation, no mat t e r how rapidly the p remeditation is followed by

the act constituting the killing
, it is willful, del i b e r ate and premeditated murder.

No othe r instruction at Riley ’s trial g ave independent meaning to “deliberate.” 6

I t is clear, however, that at the time Rile y was tried in 1990, and at the time his conviction became final in 1991, 7

6 In f act, an o th er i n s t r uc t i o n ex acerb ated th e p ro blem ; i t in f orm ed th e j u ry th at th e d i f

f eren ce b etw een f

irst- an d seco n d

- d eg ree m u rd er is th at th e latter i s co m

m itt e d “ w ith o u t th e ad m ix ture o f p rem ed itatio n .” T h is in stru ctio n

m ad e n o ref

eren ce to d elib eratio n

.

7 T h e Nev ad a Su

p rem e Co urt n ow re c o g n izes th at d ef en dan ts m

u st b e

a ffo rd ed th e ben ef

it of ch an g es in s tate law n arro w in g th e sco p e o f a crim in al s tatu te th at o ccu r p r i o r to th eir co n v ictio n s beco m in g f in al. S ee Nika v. S ta te , 1 9 8 P .3 d 8 39
, 85 0 & n n .7 2– 7 4 (Nev

. 2 0 0 8) (ap p ly in gR I L E Y V

. M C D A N I E L 8

deliberation was a discrete element o f first-deg ree murder in Nevada. I n Hern v. State
, 635 P.2d 278, 280 ( N ev. 1981), decided a d ecade e a rlier, 8 the Nevada Supreme Court

ex p lained that “[ i] t is clear from th e s t a t ute that all three elements, w illfulness, deliberation, and premeditation, must be proven bey o nd a reason a b l e doubt before an accused can be co n v i cted of first deg ree murder.” Then, a y ear a fter Riley ’s conviction became final, the Nevada Supreme Court chang ed its mind in Powell v. State
, 8 38 P.2d 9 2 1 (Nev. 1 9 9 2 )
, vacated o n other g rounds
, 551 U.S. 79 (1994). I n approving the use of the Kazalyn instruction, i t h e l d that “deliberate, premeditated and willful are a si n gle phrase, meaning simply that the a ctor intended to commit the act a nd intended death to result.” Id. at 927. I t ca l l e d t h e three elements “redundan[ t] .” Id. L e ss than a decade later, in Byford v. State
, 994 P.2d 7 0 0 (Nev. 2000), the Nevada Supreme Court ag ain reversed course, abro ga t ing Powell

. I t concluded that Powell – and the Kazalyn i nstruction it approved – had “confus[ e d]

. . . prem ed i t ation a nd de liberation,” and “underemphasiz ed the element o f deliberation.” Id. at 713. The instr u c t i o n , the court held, “blur[ red] the distinction betwee n first- and second-deg r ee

m urder,” and subsequent case law’s “further reducti o n o f
p r e m e d i t a t i o n a n d d e l i b e r a t i o n t o s i m p l y ‘ i n t e n t ’ unacceptably carr i e [ d ] this blurring to a complete erasure.” Id.

Bu n kley v. Flo rid

a , 5 3 8 U.S. 8 3 5
, 84 1

– 4 2 (2 0 03 )). A t th e tim e th at R i ley ’ s

co n v ictio n b ecam e f

in al, h o w ev er, Nev ad a co urts g av e su ch ch an g es in
state law o n ly pro sp ectiv e ef f ect. S ee Ga rn er v. S ta te , 6 P .3 d 1 0 1 3
, 1 0 2 5 (Nev . 2 0 00 ). T h e d istin ctio n is irrelev an t

f o r p resen t p u rp o ses.

8 T h e Hern ru le w as b y n o m ean s n o v el. S ee, e.g

. , S ta te v. Hin g , 1 6 Nev

. 3 0 7
, 3 0 8 (1 8 8 1 ) (“ [W ]illf u ln ess, d elib eratio n , an d p rem ed itatio n

. . . are

essen tial co n stitu en t s o f

th e crim e o f

m urd er o f th e f irst d eg ree.”).R I L E Y V

. M C D A N I E L 9

I n Polk v. Sandoval
, 503 F .3d 903 (9th Cir. 2 007), w e concluded that the use of the Kazalyn instruction violated the D u e Process Clause of the United States Constitution. Po l k held that th e instruction “relieved the state of the burden o f
pro o f o n w hether the k illing was deliberate as well a s premeditated.” Id. at 910 (applying Sandstrom v. Montana
, 442 U.S. 510, 521 ( 1 9 7 9 ) )

. I n Polk
, the petitioner had been convicted after Powell but before Byford ; we concluded that Nevada law during that time included deliberation as a distinct e lement because, we reasoned, Byford was n o t a chang e in Nevada law but ra ther a “reaffirm[ ation] ” that its first-deg ree murder statute contained three mens rea elements. Id. After Polk was dec i d ed, however, the Nevada S u p r e m e Court clarified in Nika v. State
, 198 P.3d 839, 8 4 9 (Nev. 2008), that “ Byford a nnounced a chang e in state law.” On that basis we partially o verruled 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 b e cause during that time, first-deg ree murder in N evada included only o ne (merg ed) mens rea element, w hich the instruction accurately de s cribed. Babb did nothing
, however, to disturb Polk ’s underly ing analy sis: P o lk continues to dictate that the Kazalyn instruction violates due process if, at the time it was g iven, Nevada law required the state to p rove deliberation a s a discrete mens rea element.

As already noted, a t the time of Riley ’s trial an d a t t h e time h is conviction became f inal, Nevada first-deg ree murder law did i ndeed contain three separate mens rea elements. I n Byford and Nika
, the Nevada Supreme Court reiterat e d that Powell
, decided in 1 99 2
, after Riley ’s conviction became f inal, represented a departure from prior precedent holding that the state w as required to p r o ve deliberation separatelyR I L E Y V

. M C D A N I E L 10

f r o m premeditation. Byford ex plained that it was a “rathe r recent phenomenon” that deliberation was “neg lect[ ed]

. . . a s

an independent element
, ” and traced this trend to Powell
, which “overlooked e arlier pronouncements [ such as Hern ] which recog niz ed that ‘ deliberate’ and ‘premeditated’ define distinct elements.” 994 P.2d a t 713–14. Nika charact e riz ed Byford as “abandon[ ing ] the line of c a ses starting with Powell .” 1 98 P.3d at 847 (emphasis added); see als o i d

. at 849 (“ B yf o r d ‘abandoned’ that precedent – Powell and its
prog e ny .”).

B e cause Nevada law treated deliberation a s a d istinct element of first-deg ree murder at the time Riley w a s convicted a

nd a t the time his conviction b ecame final, the use of the Kazalyn instruction a t his t r ial constituted a d ue process violation under the United States Constitution. Polk
, 503 F .3d at 910.

V. P rejudice

To obtain rel i e f, Riley must also show that this instructional e rror “ had a substanti a l a n d injurious effect o r influen c e in determining the jury ’s verdict.” B recht v

. Abrahamson
, 507 U.S. 619, 637 (1993). As w e held in Polk
, if “we are left in g rave d o u b t about whether the jury would have f ound d eliberation on [ Riley ’s] part if it had been properly instructed,” w e must conclude that the error was not harmless. 503 F .3d at 913 (internal quotation marks omitted). W e are indeed left in g rave doubt. The jury w as presented with sig nificant evidence of Riley ’s cocaine intox ication a nd emotional ag itation – evidence w hich mig ht well have created a reasonable doubt as to whether the murder was committed with deliberation as well as with premeditation.R I L E Y V

. M C D A N I E L 11

To convict a defendant of first-deg ree murde r under Nevada law, a jury mu s t f i n d that he committed the murder with “coolness and reflection.” Byford
, 994 P.2d a t 714. The defendant must h ave eng a g ed in a “dispassionate we ig hing
process and c onsideration 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 del i b e ration has been

so unders tood by Nevada courts since well before Riley ’s trial. Ogden v. State
, 607 P

. 2d 576, 579 (Nev. 1980), reiterated that “deliberate” should be g iven it s “ordinary dictionary meaning []
, ” citing with approval P e o ple v

. Anderson
, 44 7 P

. 2d 942, 948 (Cal. 1968) (holding that a “verdict o f murder in the first deg ree on a theory of a wilful, deliberate, and premeditated killing is pro p e r only if the sl a y e r k illed as a result of careful thoug ht and weig hing o f considerations; as a [ d] eliberate judg ment or plan; carried on coolly a nd steadily ” (citations, internal quotation marks, a nd alterations omitted)).

Moreover, “it is well-recog niz e d [ under N evada law] that in a prosecution for murder evidence of the intox ication of the accused is r elevant f

or the pu r

p o s e of a jury determination whether the defendant lacke d t h e capacity to deliberate a nd premediate [ sic] required of first deg ree murder.” Jackson v

. State
, 438 P.2d 795, 797 (Nev. 1 968) (citing a number o f

cases from as early as 1877); see also Nev. Rev. Stat. § 193.220 (“[ W ] henever the actual ex istence of any particular
purpose, motive or intent is a necessary element to constitute

a particular spe c i e s o r deg ree of crime, the fact o f the person’s intox icati o n may be taken into consideration in determining the purpose, motive or intent.”).R I L E Y V

. M C D A N I E L 12

The jury learned at trial that at the time Riley committed the murder, he was very u pset – “he started cry

ing
, had tears in h is ey e s, talking a

bout he w as tired of stupid shit and about li v i ng with dope.” The jury also learned that Riley had been smoking crack c o c aine prior to the murder, including smoking a rock almost immediately b efore forming the intent to kill – and then shooting – B ollin. These uncontested facts could easily have led the j u r y to have a reasonable doubt whether Riley had acted with “ c o olness and reflection” o r undertaken a “dispassionate weig h ing process.”

T h e state points out that there was some evidence th at could have supported a finding o f d eliberation – namely
, that after B ollin told Riley that he would have to kill him in order
to take his drug s, Riley asked B ollin whether he w as ready to die, and allowed him to take a final hit before shooting him. I t is true that this evidence, when v iewed in the lig ht most favorable to the prosecution, would have permitted a rational trier of fact to f

ind deliberation. See J

ackson v

. V

irginia
, 443 U.S. 307, 319 (1979). B ut the claim we consider here is

one of instructional error, not of insufficiency o f the evidence; a showing that evidence e x ists whi c h could rationally be viewed a s re f lecting deliberation is not enoug h
to establish that the error w a s harmless. “[ W ] e cannot say , with f air assuran c e , ” that the jury
, if properly instructed, would have c oncluded b ey ond a reasonable doubt that Riley ’s verbal ex chang e with B ollin, when considered along side the evidence that he was tearful and h ig h, demonstrated not only willfulness a n d premeditation, but also cool, reflective deliberat i o n

. S

ee Arnold v. R unnels
, 421 F .3d 859, 868 (9th Cir. 2005).

Our conclusion that this e r ror was not harmless is f

urther bolstered by the prosecutor’s h eavy r eliance on the instructionR I L E Y V

. M C D A N I E L 13

in his closing arg ument. He read the instruction aloud, a nd erroneously r e iterated that “[ t] he difference between seconddeg ree murder and first-deg ree murder is that second-deg r ee murder is an intention a l, malicious killing but without premeditation.” The prosecutor r epeatedly arg u ed to the jury that Riley h ad eng ag ed in premeditation – the only mens rea element that the instruction required it to find – throug h “successive thoug hts of the mind.” He informed the jury that in Nevada, first-deg

ree murder is

just th i s: I t may be as instantaneous a s successive thoug hts of the mind.

. . . You have
to aim the shotg un. That’s a thoug ht. Pull the hammer all the way back through h a lf cock. That’s a thoug ht. Pull the trig g er after y ou hav e pulled the h ammer. That’s a thoug ht. Those are successive thoug hts of the mind. And that’s the reason this is first-deg r ee murder.

The state makes two arg uments in its at t e m p t to undermine Rile y ’ s s howing of prejudice, but neither is persuasive.

F irst, the state arg ues that the error was harmless because defense counsel did not arg ue that Riley was t o o upset o r intox icated to deliberate, but r a ther asserted that another
person – namely
, J a ckson – h a d b een the shooter. Reg ardless, the state bore the burden of proving each and every mens rea element of first-deg ree murder bey ond a reasonabl e doubt,

even thoug h the d e f

e n se theory of the case did not specifically put those elements a t issue. T h i s is presumably why the prosecutor paid considerable attention to the questionR I L E Y V

. M C D A N I E L 14

of Riley ’s mental p r o c e s s and its bearing on the distinction between first- and second-deg ree murder.

Second, the state observes that the jury was instructed on, and could have convicted Ri l e y under, the felony -murder rule, and arg ues that any instru c t i o nal error reg arding deliberation – which the jury need not find to c o nvict under the f elony -murder rule – w as therefore har mless. 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 f elony murder,” but whether “we c an be reasonably c ertain

. . . that the j u r y d i d convict [ him] based on the valid felony murder theory .” B abb , 719 F .3d at 1035 (citations omitted).

The jury in Riley ’s case wa s not asked to specify under which t h e o ry it found Riley g u ilty of first-deg ree murder; it completed o nly a g eneral verdict f orm. “ A c onviction based

on a g eneral verdict is subject to challeng e if t h e j u ry was instructed o n alternative theories of g uilt and may h ave relied

on an invalid one.” Hedgpeth v

. Pulido
, 555 U.S. 57, 5 8 (2008) (per curiam); see also Babb
, 719 F .3d at 1035 (“W h en reviewing convictions

. . . this Court is limited in its ability to decipher a verdict, and cannot simply substitute its judg ment for that o f the fact finder. General verdict forms can f urther blur an already opaque decisionmaking process , l eaving us with the sort of g rave doubt that p revents us from concluding

an error was harmless.” (citations omitted)). I n B a bb
, we concluded that we cou l d “ discern with reasonable probability ” that the jury had in fact convicted B abb based on

9 A lth o u g h w e rej ect t

h e state’ s co n clu sio n , w e d o n o t d isag ree w i th its
p rem i se th at th e j u r y c o u ld h av e co n v icted Riley o f f irst- d eg ree m

u rd er b ased o n th e f

elo n y

- m urd er ru le; th e j ury also f

o un d h im g u ilty o f ro b b ery

.R I L E Y V

. M C D A N I E L 15

a f elon y m u r d e r theory despite the absence of a special verdict because “during closing arg ument, th e p rosecutor focused almost e x clusively on the felony murder theory
, ” and, more important, b e c a use “the jury was specifically instructed to only consi d e r p remeditated murder if felony murder did not apply

. ” 719 F .3d a t 1034. W h e n s uch an instruction is g iven, 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

. H ere, t h o u gh
, the prosecutor relied heavily on the premeditated murder theory and i n s t r uction, and the jury was not told to consider the alternate theories in

a particular order. U nlike in Babb
, w e have n o reason to believe that the jury in fact decided to convict Riley based on

a felony

- murder theory rather than on the m ore traditional first-deg ree murder charg e.
Riley clearly acted w ilfully – h e intended to kill B ollin – and with p r emeditation – he formed that intent prior to shooting him. However, the evidence of Riley ’s cocaine intox ication and emotional ag itation mig ht well h ave created reasonable doubt a s to the third element of firs t-deg r ee murder, the one the court’s i n s t ructions failed to identify a s

an independent element: d eliberation. B ecause the p rosecutor relied on that failure in his clo s i n g a rg ument, repeatedly

r eturning to the lang uag e of the instruction itself in arg uing the premeditated murder the o ry , and because the g eneral verdict of g uilt does not allow us to determine that t h e j u r y based its conviction on a different theory
, t h e error w as not harmless. As we are in “g rave doubt,” w e conclude that Riley was prejudiced.R I L E Y V

. M C D A N I E L 16

VI. Conclusion

The judg ment of the district court is reversed. This case i s remanded with instructions to g rant the writ unless t h e State o f Nevada e lects to p ursue a new trial within a reasonable amount of time.

REVERSED and REMANDED.