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

F R E D E R I C K. D I X O N , Petitioner-Appellant

,

v

.

B R I A N E. W I L L I A M S , S R .; A T T O R N E Y G E N E R A L O F T H E S T A T E O F N E V A D A , Respondents-Appellees

. N o. 10-17145

D.C. No. 2:09-cv-00066- PMP-PAL

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the District of Nevada Philip M. Pro, Senior District J udg e, Presiding

Arg ued and Submitted March 10, 2014—San F rancisco, California

F iled April 30, 2014 Amended J une 11, 2014

B efore: J ohn T. Noonan, Sidney R. Thomas, and Marsha S. B erz on, Circuit J udg es.

Per Curiam OpinionD I X O N V

. W I L L I A M S 2

SUMMARY *

Habeas Corpus

The p anel reve r s ed the district c ourt’s denial of a 28 U.S.C. § 2254 habeas corpus petition challeng ing a jury instruction on self-defense.

The trial court g ave an inaccurate jury instruction that an honest but “reasonable” (instead of “unreasonable”) belief in the n e cessity for self-defense does not neg ate malice and does
not reduce the offense from murder to manslaug hter. The panel held that this error was not harmless, because the error reduced the State’s burden for convicting petitioner o f murder instead o f voluntary m a

n s laug hter, and improperly limited the jury ’s consideration of the k ind of p rovocation that could g ive rise to manslaug h t er, even if the other elements o f manslaug hter were established.

COUNSEL

Randolph F iedler (arg

ued) and Debra A. B ookout, Assistant F ederal Public Defenders; Rene L

. Valladares, F ederal Public Defender, L as Veg as, Nevada, for Petitioner-Appellant.

Michael J

. B o ng ard (arg ued), Deputy Attorney General; Catherine Cortez Masto, Nevada Attorney General, E ly

, Nevada, for Respondent-Appellee.

* 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 u rt staf

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

th e read er.D I X O N V

. W I L L I A M S 3

ORDER

The Slip Opinion filed on April 30, 2014 is a m e n ded a s follows:

The last sentence of the f

irst full parag raph on pag e 11 is deleted and replaced with the following sentence:

B u t this “reasonable likelihood” inquiry does
not apply when the disputed inst r u c t ion is

erroneous r ather than ambig uous. See Boyde

, 494 U.S. at 380 (disting uishing situations

w h en the test would apply from those wher e the instruct i o n a t issue was “concededly

erroneous [ or] found so by a court”); see also Ho v. Carey
, 3 32 F .3d 587, 592 (9th Cir. 2003).

W ith this a m e ndment, the panel has unanimously voted to deny the petition for rehearing

. J u dg e Thomas and J udg e B erz o n have voted to deny the p etition for rehearing en banc, and J udg e Noonan so recommends.

The full court has been advised of the sug g e stion for rehearing en banc and n o active judg e has requested a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.

The petition for rehearing is DENIED and the sug g estion for rehearing en banc is REJECTED

.

No future petitions for rehearing or rehearing en banc will be entertained.D I X O N V

. W I L L I A M S 4

OP INION

PER CURI AM:

P e t itioner F rederic K. Dix o n seeks federal habeas rel i e f

on the basis that the state trial court improperly instructed the jury on self-defense in violation of his F ourteenth Amendment rig ht to due proc e s s

. We ag ree and reverse the district court’s denial of habeas relief.

I

Dix on was charg e d in the district court of Clark County

, Nevada w ith murder with a d eadly weapon for the shooting death of Derrick Nunley on November 14, 2003.

The parties do not dispute most o f the facts related to the shooting

, including the following : Early in t h e morning on the day of the shooting

, Dix on went to Club 7, a n ig h t c lub in L as Veg as, w i t h his two y oung er b rothers, Gabriel a nd Marcus Anderson. W hen Dix on’s g irlfrien d t ri ed to leave, Troy Nunley (also known as F ly ) and his frie n d s we re standing n ex t to her v ehicl e i n t he p arking lot. The Nunley
g roup w as asked to move to allow her to leave. They refused, and she hit Nunle y i n t h e a rm as she backed up her car. Nunley became upset, kicked the woman’s car, and screamed obscenities at her. W hen Dix on came o ut of the club, Nunley beg an y elling a t h i m a s well, a nd, at some point, r e moved a box cutter f

rom his pocket. One o f t h e club’s security officers g rabbed Nunley ’ s a rm to prevent him from u sing the box cutter.

Dix on and his brothers left the club’s parking lot, a nd drove to the Palms Hotel and Casino. T h ey were followed b yD I X O N V

. W I L L I A M S 5

a gr o up of N unley ’s friends, who made threatening g esture s throug h the windows of their v ehic l e s

. After Dix on and his brothers reached t he parking lot of the Palms, Nunley ’s friends arrived. Due to the loud commotion, the P alms

s e c urity personnel did not allow the g roups to enter t h e casino. I n the parking lot, a f i s t fig ht beg an b etween Nunley ’ s g roup an d D ix on’s g roup. Someone in Nunley ’s
g roup be g a n throwing rocks at Dix on and his brothers. Nunley pulled out the b ox cutter ag ai n , and brandished it at Dix on, repeatedly threatening that “I ’m g oing to cut y our face off,” and that he would kill Dix on.

At some point, Nunley r e t u r ned to his car and entered it from the passeng er side, without c l o s i n g the door. Dix on returne d t o his vehicle, g ot a g u n, r an to Nunley ’s c ar, a nd shot him four times. Nunley died at the scene.

At trial, Dix on did n ot d eny shooting Nunley

. I nstead, he
arg ued that he shot Nunley in self-defense. J ury I nstruction 19, which set forth the basic parameter s o f self-defense, contained an error. The instruction stated in full:

The killing o f a

nother person in self-defense is justified and not unlawful when the person who does t he killing actually and reasonably believes:

1. That there is imminent dang er that the assailant will either kill him or cause him
g reat bodily

injury ; and

2. That it is absolutely necessary under the circumstances for him to use in selfde fense force or means that mig h t causeD I X O N V

. W I L L I A M S 6

the death o f the other person, fo r the

purpose of avoiding death or g reat bodily injury to himself and/or others.

A b are fear of d eath o r g r eat bodily injury is
not sufficient to justify a k i l l i ng

. To justify
t a k ing the life o f another in self-defense, t h e circumstances must be sufficient to e x cite the fears o f a reasonable p erson placed in a similar situation. The p erson k illing must act under the influence o f thos e fears alone a nd not in reveng e

.

An honest b ut r e a sonable belief in the necessity for self-defense does not neg ate malice and does n o t reduce the offense f rom murder to manslaug hter.

The r ig ht of self-defense is not available to an orig in al ag g ressor, that is a person who has
soug h t a quarrel with the desig n t o force a deadly issue a n d thus throug h his fraud, contrivance or f

ault, to c rea t e a real o r apparent necessity fo r making a felonious assault.

However, where a person, without voluntarily

se e k ing

, provoking

, inviting

, or w illing ly
eng ag ing in a difficulty of his own free will, is attacked by an assailant, he has the r i gh t to stand his ground and n eed n ot retreat when faced with the threat of deadly force.D I X O N V

. W I L L I A M S 7

(emphasis added). I t is undisputed that the italiciz ed word should have been “unreasonable.” 1

The trial court instructed the jury on first-deg r ee murder, second-degr e e m u r d e r , v o l u n t a r y m a n s l aug hter, a nd involuntary manslaug hter. “Murd e r ” was defined as “the unlawful killing of a human being

, with malice aforethoug ht, either e x p r ess or implied.” I n c ontrast, I n struction 12 provided:

Voluntary M a nslaug hter is the unlawful killing of a human bei n g , without malice aforethoug ht and without deliberation o r p r e meditation. I t is a killing upon a sud d e n quarrel or heat of passion, caused by a provocation sufficient to make the passion irresistible.

The provocation r eq u ired f or Voluntary Manslaug hter must e ither consist of a serious and hig hly provoking injury inflicted upon the
person killing

, sufficient to ex cite an irresistible passion in a reasonable person, o r

an attempt by the person k illed to commit a serious personal injury

on the person killing

.

F or the sudden, violent impulse of passion to be irresistibl e r e s ulting in a killing

, which is Voluntary Manslaug hter, there must not have

1 T h e trial co u rt n o ticed a s p ellin g erro r in th e s am e in stru ctio n

— in th e last p arag rap h

, “ attack ed ” w a s m isp rin ted as “ attach ed ”

— m ad e a h an d w ritten co rrectio n t o t he in stru ctio n , an d in f o rm ed th e j u

ro rs o f th e

co rrectio n

.D I X O N V

. W I L L I A M S 8

been an interval between the assaul t o r provocation a

nd the k i lling sufficient for the voice of reason and humanity to b e heard; for, if there should appear to have been sufficient
t ime for a cool head to prevail a nd the vo i c e of reason to be heard, the k i l l i ng shall be

a t t r i b u t e d t o d e l i b e r a t e r e v e n g e a n d de t e rmined by y o u to be murder. The law assig ns no fix ed period of ti me for such an i n t erval b ut leaves its determination to the jury under t h e facts and c ircumstances o f the

case.

I nstruction 13 further stated:

The heat of passi o n which will reduce a homicide to Voluntary Manslaug hter must be such an irresistible p assion as naturally would b e aroused in the mind of an ordinaril y reasonable person in the same circumstances. A defendant is not p ermitted to set up his own standard of cond u ct and to justify or ex cuse himself because his passions w ere aroused

un l e s s the circumstances in which he was placed and the facts that confronted him were such as also w oul d h a ve aroused the i r r e s i s t i b l e p a s s i o n o f t h e o r d i n a r i l y reasonable man if likewise situated. The basic inquiry is wh e t h e r or not, at the time of the killing

, the reason o f the accused was obscured or d isturbed b y p assion to such an

ex tent a s would cause the ordinarily reasonable p erson of averag e disposit i o n to act rash l y a

nd without deliberation a ndD I X O N V

. W I L L I A M S 9

reflection and from s uch p assion rather than from judg ment.

The jury found Dix o n g uilty of s e c o n d-deg r ee murder with a deadly w eapon. 2 D ix on was sentenced to life w ith the possibility

of parole.

Dix on ap p ealed, arg uing

, among other thing s, that the self-defense i nstruction was clearly erroneous. The Nevada Supreme Court affirmed the c onviction. I t ag ree d t hat the jury instruction was erroneous:

J ury I nstruct i o n 19, which attempts to describe[ ] the standard for self-defense, reads in part: “ An honest b ut reasonable belief in the necessity for self-defense does not neg ate mal i ce and does not reduce the offense f rom murder to manslaug hter.” This is clearl y a n incorrect statement o f t he law. The jury instruction should read: “An honest but

u n r easonable belief in the necessity for self

defense does not ne gate malice and does not

r e d u c e t h e o f

f e n s e fr o m m u r d e r t o manslaug hter.”

(emphasis in orig inal)

. B ut, apply ing a harmless error analy sis, the Nevada Supreme Co u r t held that the error did not warrant a new trial. I t stated,

2 T h e j u ry b eg an d elib eratin g at ab o u t 7 :1 0 p .m . o n T h u rsd ay , Octo ber 2 8
, 2 0 0 4
, an d retu rn ed a v erd ict by 2 : 3 2 a.m

. o n Frid ay , Octo b er 29
, 2 0 0 4

. It d o es n o t ap p ear th at th e j u ro rs ask ed t h e trial co u rt an y q u estio n s d u rin g th eir d elib eratio n s.D I X O N V

. W I L L I A M S 10

W e conclude that this e rror w as harmless. The f irst four parag raphs of J ury I nstruction 19 state correctly that a defen d a n t who reasonably

believes there is imminent dang er of death o r b odily harm may use deadly force
to defend hi m s el f. The instruction then i n c orrectly states that a n h o n e s t b u t reasonable b elief will not reduce a murder charg e to manslaug hter.

Ey e w itnesses testified that the altercation between Dix on and Nunl e y was over before Dix on shot h im. Nunley h ad put away a knife and was walking

back toward his car. Dix on had ste p p e d back from the scene, and the direct phy sical confrontation was over. The jury heard testimony that Dix o n then walked deliberately back to his car , unlocked the door, and g rabbed a g un. Dix on then ran over to Nunley ’s vehicle and shot him repeatedly

. Althoug h one statement in the instruction was incorrect, w e c o n c lude bey ond a reasonable doub t t hat, g iven the totality of the jury instructions and the evidence admitted at trial, the error did not substanti a l l y p rejudice the jury ’s deliberations and verdict.

Dix on filed a pro se state post-conviction petition, which the state district court denied. D ix on timely appealed, a nd the Nevada Supreme Court affirmed the district court’s decision.

Thereafter, Dix on filed a pro se federal habeas corpus petition r a ising the erroneous jury instruction. The districtD I X O N V

. W I L L I A M S 11

court denied the p et ition, holding that the state Supreme Court’s denial of the claim on direct appeal w as not contrary to, or an unreasonable application of, federal law, and was not b a s ed on an u nreasonable f inding of fact. A panel of t h i s

c o u r t g ranted Dix on a certificate of appealability a s t o “whether the trial court’s jury instruction on self-defense deprived a

ppellant of due process.” Thereafter, counsel was appointed to represent Dix on on appeal.

I I

A writ of habeas corpus may be issued for a state prisoner only if “he is in custody in violat i o n of the Constitution o r law or treaties o f the U nited States.” 28 U .S.C. §§ 2241(c)(3), 2254(a). Under the Antiterrorism a nd Effective Death Penalty Act (“AEDPA”), which applies to Dix on’s petition, a federal court may g rant a habeas petition with respect to a “claim that was adjudicated o n the merits” in state court only

if the state’s decision “was contrary to, or involved an unreasonable a pplication of, c l e a rly e stablished F ederal l aw , as determined by the Supreme Court of the United States,” or “ w as based on a n unreasonable determination of the facts i n l i g ht of the evidence presented in the State court p roceeding .” 28 U.S.C. § 2254(d). “A district court’s decision to g rant or deny a petition for h abeas
corpus under 28 U.S.C. § 2254 is reviewed de novo.” Dows

v. W ood

, 211 F .3d 4 80, 484 (9th Cir. 2000) (citation omitted).

A

“W hen considering an alleg e dly erroneous jury instruction in a habeas proceeding

, an app e l l ate court first considers w hether the error in the challeng ed instruction, if
any , amounted to ‘ constitutional error.’” E v a n c h yk v

.D I X O N V

. W I L L I A M S 12

Stewart
, 340 F .3d 933, 939 (9th Cir. 2003) (internal quotation marks and c itation omitted). “I n a criminal trial, t h e S t ate must prove every el e m e n t o f the offense, and a jury instruction v iolates due process if it f ails to g ive effect to that requirement.” Middleton v

. McNeil

, 5 4 1 U.S. 433, 437 (2004). B ut “not every a mbig uity

, inconsistency

, o r deficiency in a jury instruction r ises to the l e v el of a d ue process v i o l a t i on.” I

d. T he appropriate inquiry “is whether the ailing instruction

. . . s o infected the entire trial that the resulting conviction violates d ue p rocess.” Id. (quoting Estelle v

. McGuire
, 502 U.S. 62, 72 ( 1 991)) (internal quotation marks omitte d )

. “[ A] sing le instruction to a jury
may not be judg ed in artificial isolation, but must b e viewed in the contex t of the overal l c h a r g e.” Id. (quoting Boyde v

. California

, 494 U.S. 3 70, 378 (199 0 )) (internal quotation marks omitted).

“I f the charg e as a whole is ambig uou s , t h e question is whether there is a ‘reasonable likelihood t h a t t h e jury has applied the challeng ed instruction in a way ’ that violates the Constitution.” Id. (quoting Estelle

, 5 02 U.S. a t 72). B ut this “r e a s onable likelihood” inquiry does not apply when the disputed instruction is erroneous rather than ambig uous. See Boyde

, 494 U.S. at 380 (disting uis h i n g s ituations w hen the
test would apply f

rom those where the instruction at issue was “concededly erroneous [ o r] found so by a court”); see also Ho v. Carey
, 332 F .3d 587, 592 (9th Cir. 2003).

W h en the Nevada Supreme Court addressed the instructional error on direct appeal, it held that the instruction “incorrectly states that an hon e s t b u t reasonable belief will
not reduce a murder charg e to manslaug hter,” and was an “i naccurate statement of the law.” I n other words, the Nevada Supreme Court h el d t h a t such a belief in fact couldD I X O N V

. W I L L I A M S 13

contribute to reducing a murder charg e to manslaug hter under
state law. T hat stat e m ent of the Nevada Supreme Court is b i n ding on this c ourt, Bradshaw v

. Richey

, 546 U.S. 7 4, 7 6 (2005) (“a state court’s interpretation of state law, including

one announced on d irect appeal of the c halleng ed conviction, binds a federal court sitting in habeas corpus”), and correctly reflects the underly

ing law of manslaug h ter in Nevada. 3

The error did reduce the State’ s b u rden for c onvicting Dix on of murder instead of v oluntary m a n s l a u g hter. A s correct l y n o ted in the other instructions, “[ m] urder is the unlawful killing of a human being

, with malice aforethoug ht, either ex press or implied,” but “[ v] oluntary manslaug hter is the unlaw f

u l killing o f a human being

, without malice aforethoug ht and with o u t deliberation or premeditation.” The i n structions also properly ex plaine d t h a t v o l u n t a r y manslaug hter “is a killing upon a sudden quarrel o r h eat o f

3 T h e State’ s ch aracterizatio n of th e Nev ad a Su p r e m e Co u rt’ s h o ld in g

o n d i rect ap p eal is in co rrect. T h e State m ain tain s th at th e Nev ad a Su p rem e Co u rt h eld th at t

h e p o rtio n o f th e j u ry in stru ctio n s w i th th e erro r

w as in t en d ed to ad dr e s s th e d o ctrin e o f im p erf ect self

- d ef en s e, w h ich Dix o n h ad n o t tried to in v o k e at trial, an d th e co rrected v ersio n o n l y tells j u ro rs t h at th is def

en se is n o t av ailab le in Nev ad a, so Dix o n co u ld n o t h av e b en ef

itted f ro m th e d ef

en se if t h e j u ry h ad b een p ro p erly in s tru cted

. S ee Ru n io n v. Sta te , 1 3 P

. 3 d 52
, 5 9 (Nev

. 2 0 0 0 ); Hill v. S ta te , 6 4 7 P .2 d 3 7 0
, 3 70

– 7 1 (N e v

. 1 9 8 2 ). In states th at reco g n ize th is d ef en se, i f a d e f en d an t en tertain ed an h o n est b u t u n reaso n ab le b elief in th e n ecessit y

o f self

- d ef en se, t h e g reatest ch arg e o f w h ich h e can b e co n v ic t e d is

m an slau g h ter, b ecau se su ch a b elief w o u ld by itself n eg ate m alice, w h ich is a req u ired elem en t f

o r m u rd er. Hill , 6 4 7 P .2 d at 3 7 1

.

B u t th e Nev a d a Su

p rem e Co u rt o n ly m ad e th is o bserv atio n

“ [a]d d itio n ally ,” an d in a f o otn o te. Its p rim ary h old in g w as th at th e in stru ctio n as actu ally g iv en co n tain ed an in co rrect statem en t o f th e law
reg ard in g m

u rd er an d m an slau g h ter, as d i scu ssed in th e tex t.D I X O N V

. W I L L I A M S 14

passion

, caused by a provocation sufficient to make the passion irresistible.” They further stated that th e r equired provocation “ must either consist of a serious a n d h ig hly provoking injury inflicted u pon the p erson killing , sufficient
to ex cite an irresistible passion in a r easonable person, or an attempt by the person kil l e d to commit a serious personal injury o n the person killing .” (emphasis added). B u t because the jurors also were told that an “honest but reasonable belief in the necess i t y for self-defense

. . . d oes not reduce the offense f rom murder to mansla u g hter,” the jurors were not pe rm itted to find the second, “ serious personal injury ” provocation required for voluntary manslaug hter even if they determined that Dix on had honestly and reasonably believed that Nunley h ad attempted or was attempting to kill o r seriously phy sically

injure him.

Under state law, such a belief may contribute to reducing the murder charg e to manslaug hter, by helping establish the requisite p r o v ocation. The instruction w as facially erroneous, because it stated otherwise. 4 A s a r e s u l t , the kind o f provocation that could g ive rise t o manslaug hter was improp e r l y limited, even if the other elements o f manslaug hter were establ i s hed. And the e rror was a constitutional one, as it made more onerous for the defendant, and less onerous for the prosecution, conviction for a lesser rather than a g reater offense. See Cool v. United States
,

4 T h e j u ry w as g i v en o th erw ise accu rate in stru ctio n s reg ar d i n g self

d ef en se. B ut th ose i n stru ctio n s ad dressed self

- d ef en se as a co mp l ete d ef en se to th e k i llin g

. T h e erro n eo u s in stru ctio n , in co n trast, d ealt w i t h
t h e red u ctio n o f th e o f

f en se f ro m m u rd er to m an slau g h ter b y n eg a t i ng

m alice. It is th e on l y in stru ctio n t h at d irectly ad d ressed th e relatio n sh ip

o f self

- d ef en s e to th is red u ctio n

.D I X O N V

. W I L L I A M S 15

409 U .S. 100, 1 04 (1972); Mendez v. Knowles

, 556 F .3d 757, 768 (9th Cir. 2009).

B

“Even where constitutional error is found, ‘i n § 2254 proceeding s a court must [also] assess the prejudicial impact of constitutional error’ un d e r the Brecht [ v

. Abrahamson

, 507 U.S. 6 19 (1993)] standard.” Merolillo v. Y ates , 663 F .3d 444, 4 5 4 (9th Cir. 2011) (quoting Fry v. Pliler

, 551 U .S. 112, 121–22 (2007)) ( first alteration in orig inal). U n d e r Brecht

, habeas petitioners are e n t itled to relief if “the error ‘had substantial and i njurious effect or influence in d etermining the jury ’s v e r dict.’” 507 U .S. at 6 37. As e x plained by the Supreme Court,

[ I ] f one c annot say , w ith fair assurance, a fter pondering all that h a

p pened without stripping the e rroneous action from the wh o le, that the judg ment was not substantially sway ed by the
error, it is impo s s i b le to conclude that substantial rig hts were not affected. The inquiry cannot be merely whether there was enoug h to support the result, a p art from the phase affected b y the error. I t is rather, even so, whether the error itself had sub s tantial influence.

Merolillo

, 6 63 F .3d at 454 (quoting K o t t e a kos v. United States
, 328 U.S. 7 5 0, 765 (1946)) (alteration in orig inal). “W h e re t h e record is so evenly b alanced that a judg e ‘feels himself in virtual equipoi s e as to the harmlessness of the error’ and has ‘g rave doubt’ about whether a n error affected

a jury [ substantially a

nd injuriously ]
, the judg e must treat theD I X O N V

. W I L L I A M S 16

e r r or as if it did so.’” Id. (quoting O’Neal v. McAninch

, 513 U.S. 432, 435-38 (1995)) (alteration in orig inal).

The State sug g ests that Dix on must fulfill both the Brecht
test and also show “that the Nevada Supreme C o u r t ’s application of United States Supreme Court l a w was objectively unreasonable” under AEDPA

. B u t the Supreme Court has “ex p lained that w e n e e d not conduct a n analy sis under AEDPA o f wh e t h e r the state court’s harmlessness determination on d irect revie w

— which is g overned by the ‘harmless bey ond a reasonable doubt’ test set fo r th in Chapman v. California

, 386 U.S. 18
, 24 (1967) — was

c o n t r ary to o r an unreasonable application of clearly established federal law.” P ulido v. Chrones

, 629 F .3d 1007, 1012 ( 9th Cir. 2010) (citing Fry
, 551 U.S. at 119–20). “This is because the Brecht test ‘obvious l y subsumes’ the ‘more liberal AEDPA/ Chapman standard w h i c h requires only that
t h e s t a t e c o u r t ’ s h a r m l e s s

- b e y o n d

- a

- r e a s o nable-doubt determination be unreasonable.’” Id. (quoting Fry
, 551 U.S.
at 1 2 0). T hus, “[ w] e ‘apply the Brecht test without reg ard for the state court’s harmlessness determina t i on.’” Ayala v

. W ong , No. 09-99005, slip op. a t 33–34 (9th Cir. Fe b

. 25, 2014) ( q u oting Pulido

, 629 F .3d at 1012). Apply ing the Brecht test, we conclude that the instructi onal error h ad substantial and injurious influence on the jury ’ s verdict.

As the Nevada Supreme Court noted, there was testimony that the c onfrontation between Dix on and Nunley was over and Nunley had retreated to his car by the time Dix o n went to his own car, r etrieved a g un, ran to Nunley ’s car and shot him while say ing

, “That’s what y o u g et for pulling a k n i fe o n me.” B u t there was other testimony tha t c o uld have supported a finding of a dequate provocation for volu n t a r y manslaug hter purposes, had the jury been properly instructed.D I X O N V

. W I L L I A M S 17

Among other evidence, Dix on’s y oung er brother, Gabriel Anderson, who was pre sent throug h out the relevant events, testified about dang erous confrontations in different setting s, in all of w hich N unley

, not Dix on, w as the ag g ress o r a nd during all of which Dix on tried repeatedly to de-escalate the situation, only to have Nunley c o n tinue his threats a nd vio l e n c e. Anderson described an atmosphere in which the brothers were faced with Nunley and his threatening friends, making him “scared for my life.” I n the first parking lot, for

ex a mple, Anderson saw N unley h old a box cutter and appear to be ready to use it “to cut or stab” Dix on, a possibility that dissipated only when a security g uard interven e d

. Also at that location, Anderson witnessed Nunley ’s fr i e nds y elling and screaming

threats at Dix on.

I n the second parking lot, A nderson heard several people in Nunley ’s g roup y elling at him and his brothers, “Going to kill y ou mother fucker. You’re not g etting out of L as Veg a s alive. You mother f

uckers are g oing to die.” He described try ing to leave the parking lot for the safety o f the casino, only to be prevented from entering b y security g uards. Anderson then saw N unley “jump[ ] out with a knife” a nd swing it at Dix on, while telling D ix on repeatedly

, “I ’m g oing
to cut y our mother fuckin’ face off.” Nunley also threatened Dix on, “You can dodg e this k nife, but y ou can’t dodg e these bullets.” Anderson then saw Nunley “[ take] off towards his car.”

Dix on’s defense c o unsel arg ued that Dix on reasonably believed that Nunley was g oing to his car to retrieve a g un, to follow throug h on his threat that Dix on would not be able to “dodg e” his “bullets.” T h e defense a lso maintained that Nunley was not a

b out t o l e a v e the scene, based o n theD I X O N V

. W I L L I A M S 18

testimony that he h a d en tered the c a r’s passeng er side door, not the driver’s side, and had left the door open.

That Nunley was the ag g ressor, and that D ix o n was “frig htened,” “not ag g ressive” and tried to e n d t he

c o n f r o n t ations was corroborated b y N unley ’s f riend, Je r m a i n e Clay

. Clay f

urther corrob o r at ed many of the threats that Nunley made to Dix on and the intimidating actions taken b y Nunley ’ s friends, such as th r o wing rocks at Dix on a nd his brothers. C l a y also h eard Nunley c ontinue to say thing s to Dix on as Dix on walked toward Nunley ’s car.

At trial, a psy chiatrist testifi ed t hat, “to a reasonable deg ree of medical probab i lity

, Mr. D ix on interpreted the collective behavio r of the v ictim as an authentic a nd immediate threat to his life and to the li v es of his

. . . b r o t hers.” T he psy chiatrist a lso stated that “Mr. Dix on w a s convinced that he

. . . a

n d h is family were in acute d a ng er, vital dang er, that he was g oing to be killed an d h e acted in accordance with that perception.”

I n short, althoug h there was also evidence to the contrary , there was considerable evidence the jury could have credited that Dix on had acted w ith adequate provocation, even thoug h he could not establish the elements of the defense of selfdefense and thereby avoid conviction for the k illing altog ether. I n lig ht of the other events, in which Nunley h ad repeatedly brandished a knife a nd threatened Dix on, and was the orig inal a g g ressor, the j u rors could have decided that Dix on had a

n “honest but reasonable belief in the necessity for self-defense,” because Nunley had attempted to c ommit “a s e r i o us p ersonal injury on” Dix o n, and that insufficient time h a d passed between the provocation and shooting for the passion thereby prov o k ed to p ass and “a cool h ead toD I X O N V

. W I L L I A M S 19

prevail.” J ury I nstr. No. 12. Thus, but for the erroneous jury instruction, the jurors reasonably may have convicted o n the reduced charg e of voluntary manslaug h ter instead of seconddeg ree murder. “[ B ] ecause we have ‘g rave doubt[ s] as to the harmlessness of [ this] error,’ we must rule for the Petitioner.” Cudjo v

. Ayers
, 698 F .3d 752, 770 (9th Cir. 2012) (alterations in orig inal).

W e note that the outc o m e is the same under the AEDPA/ Chapma n s t a

n dard. Chapman provides that “the test for determining whether a constitutional error is harmless

. . . is whether it appears ‘bey ond a r e a s o nable doubt that the

error complained of did not contribute to the verdict obtained.’” Neder v. United S tates , 527 U.S

. 1
, 15 (1999) (quoting Chapman

, 3 8 6 U.S. at 2 4). Here, the Nevada Supreme Court “conclude[ d ] bey ond a reasonable doubt that,
g iven the totality of the jury instructions and the evide n ce admitted at trial, the error did not substantially prejudice the jury ’s deliberations and verdict.” Althou gh the Nevada Supreme Court stated that it considered in so concluding “the totality of

. . . t h e ev i dence admitted at trial,” it recited only the testimony that supported the verdict and did not acknowl edg e any of the testimony supporting provocation throug h r easonable fear of serious injury

. Proper a pplication of the Chapman standard requires consideration of “the trial record as a whole.” Vasquez v. H illery

, 474 U.S. 254, 269 (1986) (internal quotation marks and citation omitted).

W e reverse the district court’s denial of Dix on’s petition for writ o f habeas corpus, a n d r e mand with instructions to g rant a conditional writ as to the second-deg re e m urder conviction, requiring the State to release Dix on from c ustody

as to that conviction unl ess the State initiates new trialD I X O N V

. W I L L I A M S 20

proceeding s within a r easonable period of time to be determined by

the district court.

REVERSED and REMANDED.