FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILLY RAY RILEY,

Petitioner-Appellant,

v.

E. K. MCDANIEL,

Respondent-Appellee.

No. 11-99004

D.C. No.

3:01-cv-00096-RCJ-VPC

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 BillyRay

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 DeputyAttorneyGeneral,

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 “readyto 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,8the 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 heavyreliance on the instruction
RILEY V. MCDANIEL 13

in his closing argument. He read the instruction aloud, and

erroneously reiterated that “[t]he difference between seconddegree 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

whythe 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 himguilty ofrobbery.
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.