FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDERIC K. DIXON,

Petitioner-Appellant,

v.

BRIAN E. WILLIAMS, SR.; ATTORNEY

GENERAL OF THE STATE OF NEVADA,

Respondents-Appellees.

No. 10-17145

D.C. No.

2:09-cv-00066-

PMP-PAL

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, Senior District Judge, Presiding

Argued and Submitted

March 10, 2014—San Francisco, California

Filed April 30, 2014

Amended June 11, 2014

Before: John T. Noonan, Sidney R. Thomas,

and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion
2 DIXON V. WILLIAMS

SUMMARY*

Habeas Corpus

The panel reversed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a jury

instruction on self-defense.

The trial court gave an inaccurate jury instruction that an

honest but “reasonable” (instead of “unreasonable”) belief in

the necessity for self-defense does not negate malice and does

not reduce the offense from murder to manslaughter. The

panel held that this error was not harmless, because the error

reduced the State’s burden for convicting petitioner of murder

instead of voluntarymanslaughter, and improperlylimited the

jury’s consideration of the kind of provocation that could give

rise to manslaughter, even if the other elements of

manslaughter were established.

COUNSEL

Randolph Fiedler (argued) and Debra A. Bookout, Assistant

Federal Public Defenders; Rene L. Valladares, Federal Public

Defender, Las Vegas, Nevada, for Petitioner-Appellant.

Michael J. Bongard (argued), Deputy Attorney General;

Catherine Cortez Masto, Nevada Attorney General, Ely,

Nevada, for Respondent-Appellee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DIXON V. WILLIAMS 3

ORDER

The Slip Opinion filed on April 30, 2014 is amended as

follows:

The last sentence of the first full paragraph on page 11 is

deleted and replaced with the following sentence:

But this “reasonable likelihood” inquiry does

not apply when the disputed instruction is

erroneous rather than ambiguous. See Boyde,

494 U.S. at 380 (distinguishing situations

when the test would apply from those where

the instruction at issue was “concededly

erroneous [or] found so by a court”); see also

Ho v. Carey, 332 F.3d 587, 592 (9th Cir.

2003).

With this amendment, the panel has unanimously voted

to deny the petition for rehearing. Judge Thomas and Judge

Berzon have voted to deny the petition for rehearing en banc,

and Judge Noonan so recommends.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the suggestion

for rehearing en banc is REJECTED.

No future petitions for rehearing or rehearing en banc will

be entertained.
4 DIXON V. WILLIAMS

OPINION

PER CURIAM:

Petitioner Frederic K. Dixon seeks federal habeas relief

on the basis that the state trial court improperly instructed the

jury on self-defense in violation of his Fourteenth

Amendment right to due process. We agree and reverse the

district court’s denial of habeas relief.

I

Dixon was charged in the district court of Clark County,

Nevada with murder with a deadly weapon for the shooting

death of Derrick Nunley on November 14, 2003.

The parties do not dispute most of the facts related to the

shooting, including the following: Early in the morning on

the day of the shooting, Dixon went to Club 7, a night club in

Las Vegas, with his two younger brothers, Gabriel and

Marcus Anderson. When Dixon’s girlfriend tried to leave,

Troy Nunley (also known as Fly) and his friends were

standing next to her vehicle in the parking lot. The Nunley

group was asked to move to allow her to leave. They refused,

and she hit Nunley in the arm as she backed up her car. 

Nunley became upset, kicked the woman’s car, and screamed

obscenities at her. When Dixon came out of the club, Nunley

began yelling at him as well, and, at some point, removed a

box cutter from his pocket. One of the club’s security

officers grabbed Nunley’s arm to prevent him from using the

box cutter.

Dixon and his brothers left the club’s parking lot, and

drove to the Palms Hotel and Casino. They were followed by
DIXON V. WILLIAMS 5

a group of Nunley’s friends, who made threatening gestures

through the windows of their vehicles. After Dixon and his

brothers reached the parking lot of the Palms, Nunley’s

friends arrived. Due to the loud commotion, the Palms

security personnel did not allow the groups to enter the

casino. In the parking lot, a fist fight began between

Nunley’s group and Dixon’s group. Someone in Nunley’s

group began throwing rocks at Dixon and his brothers. 

Nunley pulled out the box cutter again, and brandished it at

Dixon, repeatedlythreatening that “I’m going to cut your face

off,” and that he would kill Dixon.

At some point, Nunley returned to his car and entered it

from the passenger side, without closing the door. Dixon

returned to his vehicle, got a gun, ran to Nunley’s car, and

shot him four times. Nunley died at the scene.

At trial, Dixon did not deny shooting Nunley. Instead, he

argued that he shot Nunley in self-defense. Jury Instruction

19, which set forth the basic parameters of self-defense,

contained an error. The instruction stated in full:

The killing of another person in self-defense

is justified and not unlawful when the person

who does the killing actually and reasonably

believes:

1. That there is imminent danger that the

assailant will either kill him or cause him

great bodily injury; and

2. That it is absolutely necessary under

the circumstances for him to use in selfdefense force or means that might cause
6 DIXON V. WILLIAMS

the death of the other person, for the

purpose of avoiding death or great bodily

injury to himself and/or others.

A bare fear of death or great bodily injury is

not sufficient to justify a killing. To justify

taking the life of another in self-defense, the

circumstances must be sufficient to excite the

fears of a reasonable person placed in a

similar situation. The person killing must act

under the influence of those fears alone and

not in revenge.

An honest but reasonable belief in the

necessity for self-defense does not negate

malice and does not reduce the offense from

murder to manslaughter.

The right of self-defense is not available to an

original aggressor, that is a person who has

sought a quarrel with the design to force a

deadly issue and thus through his fraud,

contrivance or fault, to create a real or

apparent necessity for making a felonious

assault.

However, where a person, without voluntarily

seeking, provoking, inviting, or willingly

engaging in a difficulty of his own free will, is

attacked by an assailant, he has the right to

stand his ground and need not retreat when

faced with the threat of deadly force.
DIXON V. WILLIAMS 7

(emphasis added). It is undisputed that the italicized word

should have been “unreasonable.”1

The trial court instructed the jury on first-degree murder,

second-degree murder, voluntary manslaughter, and

involuntary manslaughter. “Murder” was defined as “the

unlawful killing of a human being, with malice aforethought,

either express or implied.” In contrast, Instruction 12

provided:

Voluntary Manslaughter is the unlawful

killing of a human being, without malice

aforethought and without deliberation or

premeditation. It is a killing upon a sudden

quarrel or heat of passion, caused by a

provocation sufficient to make the passion

irresistible.

The provocation required for Voluntary

Manslaughter must either consist of a serious

and highly provoking injury inflicted upon the

person killing, sufficient to excite an

irresistible passion in a reasonable person, or

an attempt by the person killed to commit a

serious personal injury on the person killing.

For the sudden, violent impulse of passion to

be irresistible resulting in a killing, which is

Voluntary Manslaughter, there must not have

1 The trial court noticed a spelling error in the same instruction — in the

last paragraph, “attacked” was misprinted as “attached” — made a

handwritten correction to the instruction, and informed the jurors of the

correction.
8 DIXON V. WILLIAMS

been an interval between the assault or

provocation and the killing sufficient for the

voice of reason and humanity to be heard; for,

if there should appear to have been sufficient

time for a cool head to prevail and the voice

of reason to be heard, the killing shall be

attributed to deliberate revenge and

determined by you to be murder. The law

assigns no fixed period of time for such an

interval but leaves its determination to the

jury under the facts and circumstances of the

case.

Instruction 13 further stated:

The heat of passion which will reduce a

homicide to Voluntary Manslaughter must be

such an irresistible passion as naturally would

be aroused in the mind of an ordinarily

reasonable person in the same circumstances. 

A defendant is not permitted to set up his own

standard of conduct and to justify or excuse

himself because his passions were aroused

unless the circumstances in which he was

placed and the facts that confronted him were

such as also would have aroused the

irresistible passion of the ordinarily

reasonable man if likewise situated. The basic

inquiry is whether or not, at the time of the

killing, the reason of the accused was

obscured or disturbed by passion to such an

extent as would cause the ordinarily

reasonable person of average disposition to

act rashly and without deliberation and
DIXON V. WILLIAMS 9

reflection and from such passion rather than

from judgment.

The jury found Dixon guilty of second-degree murder

with a deadly weapon.2 Dixon was sentenced to life with the

possibility of parole.

Dixon appealed, arguing, among other things, that the

self-defense instruction was clearly erroneous. The Nevada

Supreme Court affirmed the conviction. It agreed that the

jury instruction was erroneous:

Jury Instruction 19, which attempts to

describe[] the standard for self-defense, reads

in part: “An honest but reasonable belief in

the necessity for self-defense does not negate

malice and does not reduce the offense from

murder to manslaughter.” This is clearly an

incorrect statement of the law. The jury

instruction should read: “An honest but

unreasonable belief in the necessity for selfdefense does not negate malice and does not

reduce the offense from murder to

manslaughter.”

(emphasis in original). But, applying a harmless error

analysis, the Nevada Supreme Court held that the error did

not warrant a new trial. It stated,

 

2

 The jury began deliberating at about 7:10 p.m. on Thursday, October

28, 2004, and returned a verdict by 2:32 a.m. on Friday, October 29, 2004. 

It does not appear that the jurors asked the trial court any questions during

their deliberations.
10 DIXON V. WILLIAMS

We conclude that this error was harmless. 

The first four paragraphs of Jury Instruction

19 state correctly that a defendant who

reasonably believes there is imminent danger

of death or bodily harm may use deadly force

to defend himself. The instruction then

incorrectly states that an honest but

reasonable belief will not reduce a murder

charge to manslaughter.

Eyewitnesses testified that the altercation

between Dixon and Nunley was over before

Dixon shot him. Nunley had put away a knife

and was walking back toward his car. Dixon

had stepped back from the scene, and the

direct physical confrontation was over. The

jury heard testimony that Dixon then walked

deliberately back to his car, unlocked the

door, and grabbed a gun. Dixon then ran over

to Nunley’s vehicle and shot him repeatedly.

Although one statement in the instruction was

incorrect, we conclude beyond a reasonable

doubt that, given the totality of the jury

instructions and the evidence admitted at trial,

the error did not substantially prejudice the

jury’s deliberations and verdict.

Dixon filed a pro se state post-conviction petition, which

the state district court denied. Dixon timely appealed, and the

Nevada Supreme Court affirmed the district court’s decision.

Thereafter, Dixon filed a pro se federal habeas corpus

petition raising the erroneous jury instruction. The district
DIXON V. WILLIAMS 11

court denied the petition, holding that the state Supreme

Court’s denial of the claim on direct appeal was not contrary

to, or an unreasonable application of, federal law, and was not

based on an unreasonable finding of fact. A panel of this

court granted Dixon a certificate of appealability as to

“whether the trial court’s jury instruction on self-defense

deprived appellant of due process.” Thereafter, counsel was

appointed to represent Dixon on appeal.

II

A writ of habeas corpus may be issued for a state prisoner

only if “he is in custody in violation of the Constitution or

law or treaties of the United States.” 28 U.S.C.

§§ 2241(c)(3), 2254(a). Under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), which applies to

Dixon’s petition, a federal court may grant a habeas petition

with respect to a “claim that was adjudicated on the merits”

in state court only if the state’s decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). “A

district court’s decision to grant or deny a petition for habeas

corpus under 28 U.S.C. § 2254 is reviewed de novo.” Dows

v. Wood, 211 F.3d 480, 484 (9th Cir. 2000) (citation omitted).

A

“When considering an allegedly erroneous jury

instruction in a habeas proceeding, an appellate court first

considers whether the error in the challenged instruction, if

any, amounted to ‘constitutional error.’” Evanchyk v.
12 DIXON V. WILLIAMS

Stewart, 340 F.3d 933, 939 (9th Cir. 2003) (internal quotation

marks and citation omitted). “In a criminal trial, the State

must prove every element of the offense, and a jury

instruction violates due process if it fails to give effect to that

requirement.” Middleton v. McNeil, 541 U.S. 433, 437

(2004). But “not every ambiguity, inconsistency, or

deficiency in a jury instruction rises to the level of a due

process violation.” Id. The appropriate inquiry “is whether

the ailing instruction . . . so infected the entire trial that the

resulting conviction violates due process.” Id. (quoting

Estelle v. McGuire, 502 U.S. 62, 72 (1991)) (internal

quotation marks omitted). “[A] single instruction to a jury

may not be judged in artificial isolation, but must be viewed

in the context of the overall charge.” Id. (quoting Boyde v.

California, 494 U.S. 370, 378 (1990)) (internal quotation

marks omitted).

“If the charge as a whole is ambiguous, the question is

whether there is a ‘reasonable likelihood that the jury has

applied the challenged instruction in a way’ that violates the

Constitution.” Id. (quoting Estelle, 502 U.S. at 72). But this

“reasonable likelihood” inquiry does not apply when the

disputed instruction is erroneous rather than ambiguous. See

Boyde, 494 U.S. at 380 (distinguishing situations when the

test would apply from those where the instruction at issue was

“concededly erroneous [or] found so by a court”); see also Ho

v. Carey, 332 F.3d 587, 592 (9th Cir. 2003).

When the Nevada Supreme Court addressed the

instructional error on direct appeal, it held that the instruction

“incorrectly states that an honest but reasonable belief will

not reduce a murder charge to manslaughter,” and was an

“inaccurate statement of the law.” In other words, the

Nevada Supreme Court held that such a belief in fact could
DIXON V. WILLIAMS 13

contribute to reducing a murder charge to manslaughter under

state law. That statement of the Nevada Supreme Court is

binding on this court, Bradshaw v. Richey, 546 U.S. 74, 76

(2005) (“a state court’s interpretation of state law, including

one announced on direct appeal of the challenged conviction,

binds a federal court sitting in habeas corpus”), and correctly

reflects the underlying law of manslaughter in Nevada.3

The error did reduce the State’s burden for convicting

Dixon of murder instead of voluntary manslaughter. As

correctly noted in the other instructions, “[m]urder is the

unlawful killing of a human being, with malice aforethought,

either express or implied,” but “[v]oluntary manslaughter is

the unlawful killing of a human being, without malice

aforethought and without deliberation or premeditation.” The

instructions also properly explained that voluntary

manslaughter “is a killing upon a sudden quarrel or heat of

3 The State’s characterization of the Nevada Supreme Court’s holding

on direct appeal is incorrect. The State maintains that the Nevada

Supreme Court held that the portion of the jury instructions with the error

was intended to address the doctrine of imperfect self-defense, which

Dixon had not tried to invoke at trial, and the corrected version only tells

jurors that this defense is not available in Nevada, so Dixon could not

have benefitted from the defense if the jury had been properly instructed. 

See Runion v. State, 13 P.3d 52, 59 (Nev. 2000); Hill v. State, 647 P.2d

370, 370–71 (Nev. 1982). In states that recognize this defense, if a

defendant entertained an honest but unreasonable belief in the necessity

of self-defense, the greatest charge of which he can be convicted is

manslaughter, because such a belief would by itself negate malice, which

is a required element for murder. Hill, 647 P.2d at 371.

But the Nevada Supreme Court only made this observation

“[a]dditionally,” and in a footnote. Its primary holding was that the

instruction as actually given contained an incorrect statement of the law

regarding murder and manslaughter, as discussed in the text.
14 DIXON V. WILLIAMS

passion, caused by a provocation sufficient to make the

passion irresistible.” They further stated that the required

provocation “must either consist of a serious and highly

provoking injury inflicted upon the person killing, sufficient

to excite an irresistible passion in a reasonable person, or an

attempt by the person killed to commit a serious personal

injury on the person killing.” (emphasis added). But because

the jurors also were told that an “honest but reasonable belief

in the necessity for self-defense . . . does not reduce the

offense from murder to manslaughter,” the jurors were not

permitted to find the second, “serious personal injury”

provocation required for voluntary manslaughter even if they

determined that Dixon had honestly and reasonably believed

that Nunley had attempted or was attempting to kill or

seriously physically injure him.

Under state law, such a belief may contribute to reducing

the murder charge to manslaughter, by helping establish the

requisite provocation. The instruction was faciallyerroneous,

because it stated otherwise.4 As a result, the kind of

provocation that could give rise to manslaughter was

improperly limited, even if the other elements of

manslaughter were established. And the error 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 greater offense. See Cool v. United States,

4 The jury was given otherwise accurate instructions regarding selfdefense. But those instructions addressed self-defense as a complete

defense to the killing. The erroneous instruction, in contrast, dealt with

the reduction of the offense from murder to manslaughter by negating

malice. It is the only instruction that directly addressed the relationship

of self-defense to this reduction.
DIXON V. WILLIAMS 15

409 U.S. 100, 104 (1972); Mendez v. Knowles, 556 F.3d 757,

768 (9th Cir. 2009).

B

“Even where constitutional error is found, ‘in § 2254

proceedings a court must [also] assess the prejudicial impact

of constitutional error’ under the Brecht [v. Abrahamson,

507 U.S. 619 (1993)] standard.” Merolillo v. Yates, 663 F.3d

444, 454 (9th Cir. 2011) (quoting Fry v. Pliler, 551 U.S. 112,

121–22 (2007)) (first alteration in original). Under Brecht,

habeas petitioners are entitled to relief if “the error ‘had

substantial and injurious effect or influence in determining

the jury’s verdict.’” 507 U.S. at 637. As explained by the

Supreme Court,

[I]f one cannot say, with fair assurance, after

pondering all that happened without stripping

the erroneous action from the whole, that the

judgment was not substantially swayed by the

error, it is impossible to conclude that

substantial rights were not affected. The

inquiry cannot be merely whether there was

enough to support the result, apart from the

phase affected by the error. It is rather, even

so, whether the error itself had substantial

influence.

Merolillo, 663 F.3d at 454 (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)) (alteration in original). 

“Where the record is so evenly balanced that a judge ‘feels

himself in virtual equipoise as to the harmlessness of the

error’ and has ‘grave doubt’ about whether an error affected

a jury [substantially and injuriously], the judge must treat the
16 DIXON V. WILLIAMS

error as if it did so.’” Id. (quoting O’Neal v. McAninch,

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

The State suggests that Dixon must fulfill both the Brecht

test and also show “that the Nevada Supreme Court’s

application of United States Supreme Court law was

objectively unreasonable” under AEDPA. But the Supreme

Court has “explained that we need not conduct an analysis

under AEDPA of whether the state court’s harmlessness

determination on direct review — which is governed by the

‘harmless beyond a reasonable doubt’ test set forth in

Chapman v. California, 386 U.S. 18, 24 (1967) — was

contrary to or an unreasonable application of clearly

established federal law.” Pulido v. Chrones, 629 F.3d 1007,

1012 (9th Cir. 2010) (citing Fry, 551 U.S. at 119–20). “This

is because the Brecht test ‘obviously subsumes’ the ‘more

liberal AEDPA/Chapman standard which requires only that

the state court’s harmless-beyond-a-reasonable-doubt

determination be unreasonable.’” Id. (quoting Fry, 551 U.S.

at 120). Thus, “[w]e ‘apply the Brecht test without regard for

the state court’s harmlessness determination.’” Ayala v.

Wong, No. 09-99005, slip op. at 33–34 (9th Cir. Feb. 25,

2014) (quoting Pulido, 629 F.3d at 1012). Applying the

Brecht test, we conclude that the instructional error had

substantial and injurious influence on the jury’s verdict.

As the Nevada Supreme Court noted, there was testimony

that the confrontation between Dixon and Nunley was over

and Nunley had retreated to his car by the time Dixon went to

his own car, retrieved a gun, ran to Nunley’s car and shot him

while saying, “That’s what you get for pulling a knife on

me.” But there was other testimony that could have

supported a finding of adequate provocation for voluntary

manslaughter purposes, had the jury been properlyinstructed.
DIXON V. WILLIAMS 17

Among other evidence, Dixon’s younger brother, Gabriel

Anderson, who was present throughout the relevant events,

testified about dangerous confrontations in different settings,

in all of which Nunley, not Dixon, was the aggressor and

during all of which Dixon tried repeatedly to de-escalate the

situation, only to have Nunley continue his threats and

violence. Anderson described an atmosphere in which the

brothers were faced with Nunley and his threatening friends,

making him “scared for my life.” In the first parking lot, for

example, Anderson saw Nunley hold a box cutter and appear

to be ready to use it “to cut or stab” Dixon, a possibility that

dissipated only when a security guard intervened. Also at

that location, Anderson witnessed Nunley’s friends yelling

and screaming threats at Dixon.

In the second parking lot, Anderson heard several people

in Nunley’s group yelling at him and his brothers, “Going to

kill you mother fucker. You’re not getting out of Las Vegas

alive. You mother fuckers are going to die.” He described

trying to leave the parking lot for the safety of the casino,

only to be prevented from entering by security guards. 

Anderson then saw Nunley “jump[] out with a knife” and

swing it at Dixon, while telling Dixon repeatedly, “I’m going

to cut your mother fuckin’ face off.” Nunley also threatened

Dixon, “You can dodge this knife, but you can’t dodge these

bullets.” Anderson then saw Nunley “[take] off towards his

car.”

Dixon’s defense counsel argued that Dixon reasonably

believed that Nunley was going to his car to retrieve a gun, to

follow through on his threat that Dixon would not be able to

“dodge” his “bullets.” The defense also maintained that

Nunley was not about to leave the scene, based on the
18 DIXON V. WILLIAMS

testimony that he had entered the car’s passenger side door,

not the driver’s side, and had left the door open.

That Nunley was the aggressor, and that Dixon was

“frightened,” “not aggressive” and tried to end the

confrontations was corroborated byNunley’s friend, Jermaine

Clay. Clay further corroborated many of the threats that

Nunley made to Dixon and the intimidating actions taken by

Nunley’s friends, such as throwing rocks at Dixon and his

brothers. Clay also heard Nunley continue to say things to

Dixon as Dixon walked toward Nunley’s car.

At trial, a psychiatrist testified that, “to a reasonable

degree of medical probability, Mr. Dixon interpreted the

collective behavior of the victim as an authentic and

immediate threat to his life and to the lives of his . . .

brothers.” The psychiatrist also stated that “Mr. Dixon was

convinced that he . . . and his family were in acute danger,

vital danger, that he was going to be killed and he acted in

accordance with that perception.”

In short, although there was also evidence to the contrary,

there was considerable evidence the jury could have credited

that Dixon had acted with adequate provocation, even though

he could not establish the elements of the defense of selfdefense and thereby avoid conviction for the killing

altogether. In light of the other events, in which Nunley had

repeatedly brandished a knife and threatened Dixon, and was

the original aggressor, the jurors could have decided that

Dixon had an “honest but reasonable belief in the necessity

for self-defense,” because Nunley had attempted to commit

“a serious personal injury on” Dixon, and that insufficient

time had passed between the provocation and shooting for the

passion thereby provoked to pass and “a cool head to
DIXON V. WILLIAMS 19

prevail.” Jury Instr. No. 12. Thus, but for the erroneous jury

instruction, the jurors reasonably may have convicted on the

reduced charge of voluntary manslaughter instead of seconddegree murder. “[B]ecause we have ‘grave 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 original).

We note that the outcome is the same under the

AEDPA/Chapman standard. Chapman provides that “the test

for determining whether a constitutional error is harmless . . .

is whether it appears ‘beyond a reasonable doubt that the

error complained of did not contribute to the verdict

obtained.’” Neder v. United States, 527 U.S. 1, 15 (1999)

(quoting Chapman, 386 U.S. at 24). Here, the Nevada

Supreme Court “conclude[d] beyond a reasonable doubt that,

given the totality of the jury instructions and the evidence

admitted at trial, the error did not substantially prejudice the

jury’s deliberations and verdict.” Although the Nevada

Supreme Court stated that it considered in so concluding “the

totality of . . . the evidence admitted at trial,” it recited only

the testimony that supported the verdict and did not

acknowledge any of the testimony supporting provocation

through reasonable fear of serious injury. Proper application

of the Chapman standard requires consideration of “the trial

record as a whole.” Vasquez v. Hillery, 474 U.S. 254, 269

(1986) (internal quotation marks and citation omitted).

We reverse the district court’s denial of Dixon’s petition

for writ of habeas corpus, and remand with instructions to

grant a conditional writ as to the second-degree murder

conviction, requiring the State to release Dixon from custody

as to that conviction unless the State initiates new trial
20 DIXON V. WILLIAMS

proceedings within a reasonable period of time to be

determined by the district court.

REVERSED and REMANDED.