FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LATISHA MARIE BABB,

Petitioner-Appellee,

v.

JENNIFER LOZOWSKY and E. K.

MCDANIEL,

Respondents-Appellants.

No. 11-16784

D.C. No.

2:05-cv-00061-

PMP-RJJ

OPINION

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

July 20, 2012—San Francisco, California

Filed January 11, 2013

Before: A. Wallace Tashima, Richard R. Clifton,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
2 BABB V. LOZOWSKY

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

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Habeas Corpus

The panel reversed the district court’s grant of a

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

and robbery conviction, due to an unconstitutional jury

instruction given pursuant to Kazalyn v. State, 825 P.2d 578

(Nev. 1992).

While petitioner Babb’s direct appeal was pending, the

Nevada Supreme Court invalidated the Kazalyn instruction in

Byford v. State, 994 P.2d 700 (Nev. 2000), which held that

the Kazalyn instruction blurred the three elements of first

degree murder – willfulness, deliberation and premeditation –

and relieved the state of its burden of proving each element

of the crime. Although this Court granted habeas relief in

Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), based on a

Kazalyn instruction, theNevada SupremeCourt subsequently

clarified in Nika v. State, 198 P.3d 839 (Nev. 2008), that

Byford announced a new interpretation of the state murder

statute that changed the law, as opposed to clarifying it. The

district court determined that it was bound by this Court’s

decision in Polk and granted habeas relief to Babb.

The panel first held that the Nevada state court

unreasonably applied established federal law expressed in

Bunkley v. Florida, 538 U.S. 835 (2003) (per curiam), and

violated Babb’s due process rights by not applying Byford.

The panel explained that Polk did not control the outcome of
BABB V. LOZOWSKY 3

this case because Nika undermined this Court’s holding in

Polk as to the constitutionality of the Kazalyn instruction.

The panel further explained that Byford applied to Babb’s

case because newly declared constitutional rules must be

applied to convictions that were not yet final at the time the

change occurs.

The panel next held that the error was harmless because

the panel was reasonably certain that no juror convicted Babb

based on the theory of premeditation, given overwhelming

evidence supporting the felony murder theory and the

prosecutor’s focus on that theory during closing argument.

The panel remanded for the district court to consider

Babb’s other claims, which were not addressed when the

district court granted relief.

COUNSEL

Lisa A. Rasmussen, Las Vegas, Nevada, for PetitionerAppellee.

Adam L. Woodrum and Victor-Hugo Schulze, II, Office of

the Nevada Attorney General, Las Vegas, Nevada, for

Respondent-Appellant.
4 BABB V. LOZOWSKY

OPINION

MURGUIA, Circuit Judge:

Appellants–Respondents Jennifer Lozowsky, the Warden,

and the Nevada Attorney General (“the State”) appeal the

district court’s grant of a writ of habeas corpus to

Appellee–Petitioner Latisha M. Babb pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254. Babb was convicted of first

degree murder with a deadly weapon, and robbery with a

deadly weapon, by a jury in Nevada state court for the murder

of cab driver John Castro in connection with a robbery. The

district court granted habeas relief, concluding that one of the

instructions for first degree murder given in Babb’s case,

known as the Kazalyn instruction, violated her due process

rights and that the improper instruction did not constitute

harmless error.

We REVERSE.

Background

On October 26, 1997, cab driver John Castro was found

shot in the head in Washoe County, Nevada. He ultimately

died from the wound.

While investigating another shooting, police obtained

warrants to search the home and vehicle of Babb’s

codefendant and live-in boyfriend, Shawn Harte. At the time

the police stopped Harte in his car, Babb was with him. The

police found a .22 caliber pistol, a spotlight, a hand-held

radio, a magazine, and ammunition in the car. A shell casing

had been found inside the victim’s taxi cab. Forensic testing
BABB V. LOZOWSKY 5

revealed that the shell casing had been fired from the gun

found in Harte’s car.

Information obtained from Harte led police to question

Babb’s other co-defendant, Weston Sirex (“Sirex”), who

worked at a Reno taxi company. Sirex told the investigators:

that it started out as a robbery, that they were

northbound on Cold Springs Road, that he

[Sirex] was looking out the window, that he

[Sirex] turned around just in time to hear a

shot and see the flash of a weapon, and that it

wasn’t supposed to happen that way, or that

he [Sirex] didn’t know it was going to happen

that way.

Sirex also admitted to being party to discussions that a

robbery and a killing would take place, although he said that

the cab driver was not to be killed, unless absolutely

necessary. Babb, Harte, and Sirex were tried together, and

Sirex’s statements to police were read to the jury during the

trial.

Harte also eventually made statements to police, wherein

he admitted to shooting Castro in the head. In addition, he

confessed to being the shooter in a letter to a woman he had

dated. He wrote:

So this cab driver is just spurting off his

mouth about how he got ‘ripped off’ $1000

cash earlier, blah blah blah. Now what could

that all have been about? Drugs. . . . It’s

because of people like him that I don’t have a

son or daughter. . . .
6 BABB V. LOZOWSKY

I chambered a round. . . . Point blank. An

inch above the ear and two behind. Boom.

That simple. That easy. No remorse.

Honestly.

I jumped up and let the cab coast right in front

of a drug dealer’s house in Cold Springs.

Perfect. Windows were up, so it was

noiseless. . . . We left. Went to Circus Circus.

Played some games, gambled – continued our

good time. Went to Taco Bell. And ate.

Went home. Simple. Nothing to it. Just

another chore, like taking out the trash, except

easier. And funner.

The letter and Harte’s statements to the police were also read

to the jury.

Harte and Sirex did not testify at trial, and they did not

mention Babb’s involvement in their statements to the police.

When Babb was interviewed by a newspaper reporter after

her arrest, however, she made the following statements to the

reporter admitting her involvement in the robbery:

I was the driver.

It was maybe a 15-minute plan. We weren’t

out to get this specific person.

I jokingly said, “Let’s rob a cab. It’s easy

enough.” So we did.
BABB V. LOZOWSKY 7

I didn’t hear the gunshot. I didn’t even know

he was shot until I pulled up alongside the car

and heard him [the driver] breathing.

The cab stopped in Cold Springs, and I pulled

in front of it.

I looked and saw him in the front seat with his

head rolled back.

When I thought about it later, I kept hearing

his breath.

I thought maybe someone else would rob a

cab and they’d think he did it. I was broke

and I had just lost my job. I needed the

money to pay my bills. I have a lot of debt.

For the money we got, that man’s life wasn’t

worth it.

How do you tell people you were involved in

a murder? How will I tell my mom?

I acknowledge this happened and I feel bad.

I have nothing to hide. What’s done is done.

This is forever, nobody will forget. You see

it on TV and you know that you did that. I

didn’t want any of this.

Babb also did not testify at trial, but her statements to the

reporter were read to the jury.
8 BABB V. LOZOWSKY

Babb was charged with robbing and murdering John

Castro. The jury was given the following instruction for first

degree murder:

As it applies to this case Murder of the First

Degree is:

a) Murder which is any kind of willful,

deliberate and premeditated killing: or

b) Murder which is committed in the

perpetration of a Robbery. Murder in the

Second Degree is all other kinds of Murder.

Instruction 18 (emphases added).

The jury instructions also included the following

instruction for first degree murder, sometimes referred to as

the Kazalyn instruction, named for the Nevada Supreme

Court decision which approved it, Kazalyn v. State, 825 P.2d

578 (Nev. 1992):

the unlawful killing must be accompanied

with deliberate and clear intent to take life in

order to constitute Murder of the First Degree.

The intent to kill must be the result of

deliberate premeditation.

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 instantaneous as
BABB V. LOZOWSKY 9

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.

Instruction 23 (emphasis added). The judge also instructed

the jury to apply this definition of first degree murder

“[u]nless felony murder applies.”

The jury was given the following instruction for felony

murder:

Whenever death occurs during the

perpetration of certain felonies, including

Robbery, NRS 200.030 defines this as Murder

in the First Degree. This is known as the

“felony murder rule.”

Therefore, an unlawful killing of a human

being, whether intentional, unintentional or

accidental, which is committed in the

perpetration of a Robbery, is Murder in the

First Degree if there was in the mind of the

defendants the specific intent to commit the

crime of Robbery.
10 BABB V. LOZOWSKY

 The jury was also instructed regarding first degree murder on an aiding 1

and abetting theory. This instruction permitted the jury to find Babb

guilty of first degree murder if she aided and abetted Harte in committing

first degree murder:

In order to find Latisha Marie Babb . . . guilty of

the crime of murder, as charged in Count I of the

Indictment, you must be satisfied beyond a reasonable

doubt that:

1. The crimes of Murder and Robbery were

committed;

2. Latisha Marie Babb . . . aided and abetted such

crimes.

3. Shawn Russell Harte, a co-principal,

committed the crimes of Murder and Robbery, and

4. The crime of Murder was a natural and

probable consequence of the commission of the crime

of Robbery.

Instruction 22.

The specific intent to commit Robbery must

be proven by the state beyond a reasonable

doubt.

Instruction 20.1

The jury found Babb guilty of robbery with a deadly

weapon and first degree murder with a deadly weapon. This

was a general verdict, however, and did not specify under

which theory the jury found Babb guilty of first degree

murder. Babb was sentenced to two consecutive life
BABB V. LOZOWSKY 11

 When Babb participated in Castro’s murder, Nevada law required 2

courts to impose a second, consecutive sentence on a defendant who used

a deadly weapon in the commission of a crime; the second sentence was

to be of the same length as the first. See Nev. Rev. Stat. § 193.165 (1997).

sentences without parole for the murder conviction. She was 2

also sentenced to two consecutive terms of 72–180 months in

prison for the robbery conviction, running concurrently with

the murder sentence.

The Nevada Supreme Court affirmed Babb’s conviction

and sentence on direct appeal. On May 27, 2009, Babb filed

a Second Amended Petition for Writ of Habeas Corpus in the

United States District Court, District of Nevada. Ground

twelve of the petition alleged that Babb was denied her Fifth

and Fourteenth Amendment rights to due process and trial by

an impartial jury because the state trial court failed to instruct

the jury properly regarding premeditation and deliberation.

In the last reasoned decision by the state court, the Nevada

Supreme Court held:

Appellant[] also challenge[s] the giving of

Instruction 23, the “Kazalyn instruction,”

which was ultimately criticized in Byford v.

State. Appellant[] argue[s] that the instruction

improperly merges the concepts of

premeditation and deliberation and, therefore,

reduces the State’s burden of proof in

violation of due process. . . . As we have

recently held, the giving of the Kazalyn

instruction in cases like this one, which

preceded the Byford decision, constitutes

neither plain nor constitutional error.
12 BABB V. LOZOWSKY

Babb v. State, No. 34195 (Nev. July 10, 2001) (footnotes

omitted).

The district court granted relief on Babb’s Fourteenth

Amendment claim on the basis that: 1) the Ninth Circuit held

in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), that the

Kazalyn instruction was unconstitutional because it blurred

the elements of premeditation and deliberation, thereby

relieving the State of the burden of proving each element of

a crime, as required by Supreme Court precedent; and 2) due

process required that Byford v. State, 994 P.2d 700 (Nev.

2000), which narrowed the category of cases that could be

considered murder, be applied to Babb, whose conviction was

not final when Byford was decided.

The district court also conducted a harmless error

analysis. The court determined that, because the jury was

presented with multiple theories of first degree murder and

delivered a general verdict, the impact of the improper

instruction was unclear. Because the court had grave doubt

about whether all jurors agreed that felony murder was the

theory by which they found Babb guilty, the error was not

harmless. The district court did not reach any of Babb’s other

claims for relief.

The State appeals the district court’s judgment granting

the writ.

Standard of Review

This Court reviews de novo a district court’s decision to

grant or deny a petition for the writ of habeas corpus under

28 U.S.C. § 2254. Cooper v. Neven, 641 F.3d 322, 326 (9th

Cir. 2011). The Court reviews findings of fact for clear error.
BABB V. LOZOWSKY 13

Id. Mixed questions of law and fact involving constitutional

issues are reviewed de novo. Id. Under AEDPA, a habeas

petitioner cannot obtain relief based on a claim adjudicated

on the merits in state court unless the adjudication of the

claim “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d). Under AEDPA, “clearly

established Federal law” refers to the holdings, as opposed to

the dicta, of the Supreme Court’s decisions as of the time of

the relevant state court decision. Lockyer v. Andrade,

538 U.S. 63, 71 (2003).

Analysis

I. Background of Nevada’s Kazalyn Instruction

The Nevada statutes define first degree murder, in

relevant part, as murder perpetrated by “willful, deliberate

and premeditated killing.” Nev. Rev. Stat. § 200.030(1)(a).

In Kazalyn, the Nevada Supreme Court approved the

instruction for first degree murder that is at the center of

Babb’s habeas claim:

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. If the

jury believes from the evidence that the act

constituting the killing has been preceded

by and has been the result of
14 BABB V. LOZOWSKY

 The new instructions provide: 3

Murder of the first degree is murder which is

perpetrated by means of any kind of willful, deliberate,

premeditation, no matter how rapidly the

premeditation is followed by the act

constituting the killing, it is willful,

deliberate and premeditated murder.

825 P.2d at 583 (emphasis added).

Eight years later, in Byford, the Nevada Supreme Court

determined that the Kazalyn instruction was deficient because

it defined only premeditation, and failed to provide an

independent definition for deliberation. 994 P.2d at 713. The

Nevada Supreme Court in Byford noted that in its prior

decisions, the terms premeditated, deliberate and willful were

considered a single phrase rather than independent elements

of the mens rea for first degree murder. Id. (citing Greene v.

State, 931 P.2d 54, 61 (Nev. 1997); Powell v. State, 838 P.2d

921, 926–27 (Nev. 1992), vacated on other grounds by

511 U.S. 79 (1994); and Scott v. State, 554 P.2d 735, 737 n.2

(Nev. 1976)). The court determined that, by failing to treat

the terms as independent elements, the Kazalyn instruction

improperly blurred the distinction between first and second

degree murder. Id. at 713. The Nevada Supreme Court also

noted 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.” Id. at 713–14 (internal

citations and quotation marks omitted). Byford set out

instructions providing separate definitions for willfulness,

deliberation and premeditation. The Byford court did not 3
BABB V. LOZOWSKY 15

and premeditated killing. All three elements –

willfulness, deliberation and premeditation – must be

proven beyond a reasonable doubt before an accused

can be convicted of first degree murder.

Wilfulness is the intent to kill. There need be no

appreciable space of time between formation of the

intent to kill and the act of killing.

Deliberation is the process of determining upon a

course of action to kill as a result of thought, including

weighing the reasons for and against the action and

considering the consequences of the action.

A deliberate determination may be arrived at in a

short period of time. But in all cases the determination

must not be formed in passion, or if formed in passion

it must be carried out after there has been time for the

passion to subside and deliberation to occur. A mere

unconsidered and rash impulse is not deliberate, even

though it includes the intent to kill.

Premeditation is a design, a determination to kill,

distinctly formed in the mind by 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 act follows

the premeditation, it is premeditated.

The law does not undertake to measure in units of

time the length of the period during which the thought

must be pondered before it can ripen into an intent to

kill which is truly deliberate and premeditated. The

time will vary with different individuals and under

varying circumstances.
16 BABB V. LOZOWSKY

The true test is not the duration of time, but rather

the extent of the reflection. A cold, calculated

judgment and decision may be arrived at in a short

period of time, but a mere unconsidered and rash

impulse, even though it includes an intent to kill, is not

deliberation and premeditation as will fix an unlawful

killing as murder of the first degree.

Byford, 994 P.2d at 714–15.

cite any constitutional basis for its ruling. Id. at 714–15.

After Byford, the Nevada Supreme Court held in Garner

v. State, 6 P.3d 1013, 1025 (Nev. 2000), overruled on other

grounds by Sharma v. State, 56 P.3d (Nev. 2002), that the

new first degree murder instructions would not be applied to

cases whose appeals were pending on direct review at the

time Byford was decided. The Garner court noted that

although newlydeclared constitutional rules had to be applied

to cases pending on direct appeal, Byford had no

constitutional basis. Id. at 1025 (citing Griffith v. Kentucky,

479 U.S. 314 (1987)).

In 2007, this Court granted habeas corpus relief under

28 U.S.C. § 2254 to a Nevada inmate who claimed that the

Kazalyn instruction violated his right to a fair trial under the

Fifth and Fourteenth Amendments. Polk, 503 F.3d at 913.

The Polk Court noted that, although the Nevada Supreme

Court in Byford had not addressed the constitutional

implications of its decision, the Kazalyn instruction violated

federal due process because it relieved the state of the burden

of proving all elements of the crime by permitting the jury to

find willful, deliberate, and premeditated murder so long as

it found premeditation. Id. at 910. The Court specifically

quoted language in Byford stating that it was clear from the
BABB V. LOZOWSKY 17

statute that all three elements had to be proved beyond a

reasonable doubt. Id. This Court thus concluded that by

relieving the State of the burden of proving each element

beyond a reasonable doubt, the Kazalyn instruction violated

established federal law, including In re Winship, 397 U.S.

358, 364 (1970), Francis v. Franklin, 471 U.S. 307 (1985)

and Sandstrom v. Montana, 442 U.S. 510 (1979). Id. at 911.

Subsequently, however, the Nevada Supreme Court held

in Nika v. State, 198 P.3d 839, 849 (Nev. 2008), that the

Byford decision was not a clarification of the murder statute

– that is, Byford had not righted prior decisions’ incorrect

interpretations of Nevada’s murder statute. Rather, the Nika

court explained, Byford had announced a new interpretation

of the murder statute, which changed the law. Id. The Nika

court declared that any language in Byford and Garner

suggesting that Byford was a clarification rather than a new

rule was dicta. Id. at 849–50. According to Nika, this Court

in Polk was wrong in concluding that the Kazalyn instruction

was a violation of due process because the instruction

accurately represented the elements of first degree murder up

until Byford was decided. Thus, before Byford was decided,

the Kazalyn instruction did not improperly relieve the State

of the burden of proving all the elements of first degree

murder. Id. at 850.

The Nika court also determined, however, that its prior

decision in Garner wrongly held that the federal Constitution

did not require application of the new rule to convictions that

were not yet final at the time Byford was decided. The Nika

decision explained that because the change effected by Byford

narrowed the scope of the criminal statute, it should, as a

matter of due process, apply to anyone whose conviction was
18 BABB V. LOZOWSKY

not final at the time Byford was decided. Id. (citing Bunkley

v. Florida, 538 U.S. 835, 841–42 (2003) (per curiam)).

II. Babb’s claim for habeas relief

A. Babb’s claim that the Kazalyn instruction is

unconstitutional because it omits an element of

premeditated murder.

The district court held that because the Kazalyn

instruction failed to provide a definition of deliberation that

was independent of premeditation, the instruction was

unconstitutional. The district court thus concluded that it was

bound by this Court’s holding in Polk, despite the Nevada

Supreme Court’s subsequent holding in Nika that Byford

represented a change in, rather than a clarification of, the law.

On appeal, the State argues that after the Nika decision, Polk

does not control the outcome of this case. We agree with the

State.

The Nevada Supreme Court’s decision in Nika made clear

that under pre-Byford law, premeditation, deliberation and

wilfulness were not distinct and independent elements of first

degree murder, and that Byford’s decision requiring separate

definitions for these terms represented a change in, rather

than a clarification of, the law. There is an important

distinction between decisions that clarify the law and

decisions that change the law. A clarification is essentially a

“correction” that provides the proper interpretation of a

statute, whereas a change in the law is a new court-created

rule. Fiore v. White, 531 U.S. 225, 228 (2001). Federal due

process requires that a state vacate a conviction, even a final

conviction that has been affirmed on appeal, where a

clarification reveals that a defendant was convicted “for
BABB V. LOZOWSKY 19

conduct that [the state’s] criminal statute, as properly

interpreted, does not prohibit.” Id.

 There was language in Byford suggesting that the

decision represented a clarification of the law. The Byford

court stated, for instance, 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.”

994 P.2d at 713–14 (internal quotation marks and citation

omitted). There are also portions of Byford, however, that

indicate that the terms premeditated and deliberate were not

distinct elements. Id. (noting that “deliberate” and

“premeditated” were previously both included in jury

instructions without being individually defined and citing

Greene, 931 P.2d at 61, which said “the terms premeditated,

deliberate and willful were a single phrase, meaning simply

that the actor intended to commit the act and intended death

as a result of the act”). Nika made clear that Byford

represented a change in the law, and that any language in

Byford suggesting it was a clarification was dicta. 198 P.3d

at 850. Whether a particular decision represents a change in,

or clarification of, the law is a matter of state law. See Fiore,

531 U.S. at 228 (noting uncertainty regarding whether

decision represented clarification or change in law and

certifying question to Pennsylvania Supreme Court);see also

Bunkley, 538 U.S at 842 (noting state court decision

represented change in state law and certifying question to

Florida Supreme Court regarding when change occurred).

The Nika decision explaining that Byford represented a

change in, rather than a clarification of, law undermines the

basis of this Court’s holding in Polk with regard to the

constitutionality of the Kazalyn instruction. Polk was
20 BABB V. LOZOWSKY

 Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008), which held that 4

the Kazalyn instruction was unconstitutional, citing Polk, was decided

before Nika, and so is also not controlling here.

premised on the understanding that theNevada murder statute

mandated separate definitions of deliberation and

premeditation. 503 F.3d at 910 (citing portion of Nika

stating, “[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”). “[W]here the reasoning

or theory of our prior circuit authority is clearly irreconcilable

with the reasoning or theory of intervening higher authority,

a three-judge panel should consider itself bound by the later

and controlling authority, and should reject the prior circuit

opinion as having been effectively overruled.” Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

Because the Nevada Supreme Court, which is the ultimate

authority in interpreting and deciding questions of Nevada

state law, explained in Nika that Byford was a change in,

rather than a clarification of, the law concerning premeditated

murder, Polk’s holding has been disapproved (effectively

overruled by Nika) and therefore does not govern the

outcome of this case. Cf. United States v. Flores-Meja,

4

687 F.3d 1213, 1215 (9th Cir. 2012) (concluding that because

California Supreme Court decision did not change elements

of robbery, Ninth Circuit precedent still governed).

Babb argues that Polk’s holding survives Nika and that by

failing to provide an independent definition of deliberation,

the Kazalyn instruction violated her due process rights even

if Byford was a change in the law. We disagree. The
BABB V. LOZOWSKY 21

 By way of example, federal law, like the Nevada murder statute, also 5

defines first degree murder as any killing that is “willful, deliberate,

malicious and premeditated.” 18 U.S.C. § 1111. Model federal jury

instructions, like the Kazalyn instruction, conflate the definitions of

premeditation and deliberation, stating “Premeditation means with

planning or deliberation.” Kevin F. O’Malley, et. al., Federal Jury Prac.

and Instr. § 45.03 (6th ed.); accord Ninth Cir. Model Criminal Jury

Kazalyn instruction did not treat deliberation and

premeditation as distinct elements of the mens rea for first

degree murder requiring independent definitions because, as

Nika explained, they were not separate elements under

Nevada law until Byford. Although the Supreme Court has

held that jury instructions omitting an element of the crime

unconstitutionally diminish the state’s burden, see, e.g.,

United States v. Gaudin, 515 U.S. 506, 509–10, 522–23

(1995); Neder v. United States, 527 U.S. 11–13 (1999),

whether a term in a statute constitutes a distinct element of

the crime with an independent definition is a question of state

law. See Schad v. Arizona, 501 U.S. 624, 636 (1991) (“In

cases, like this one, involving state criminal statutes . . . we

are not free to substitute our own interpretation of state

statutes for those of a State’s courts. If a State’s courts have

determined that certain statutory alternatives are mere means

of committing a single offense, rather than independent

elements of the crime, we simply are not at liberty to ignore

that determination and conclude that the alternatives are, in

fact, independent elements under state law.”); see also

Evanchyk v. Stewart, 340 F.3d 933, 936 (9th Cir. 2003)

(noting that the Arizona Supreme Court responded to certified

question that intent to kill is an essential element of the

offense of conspiracy to commit first degree murder). There

is no constitutionallymandated definition of premeditation or

deliberation, and whether these are independent elements

with distinct meanings is a question of state law.

5
22 BABB V. LOZOWSKY

Instructions 8.107 (Murder–First Degree); see also United States v.

Agofsky, 516 F.3d 280, 282 n. 2 (5th Cir. 2008) (“a killing is

‘premeditated’ when it is the result of planning or deliberation”).

 The district court also cited Nika’s holding that the Byford instruction 6

for premeditated murder should be applied to cases whose appeals were

not final at the time Byford was decided. 198 P.3d at 850. Unless Nika’s

holding was premised on clearly established federal law, it would not form

a basis for habeas relief under AEDPA. See Bradley v. Duncan, 315 F.3d

1091, 1100 (9th Cir. 2002) (noting that it is a federal due process

Polk did not hold, and could not have held, that where a

statute includes both premeditation and deliberation in its

definition of the mens rea for first degree murder, it is a

violation of due process if the jury instruction fails to provide

independent definitions for each of those terms. After Nika,

Babb’s claim that the Kazalyn instruction violated her due

process rights because it did not provide a distinct definition

for deliberation must fail.

B. Babb’s claim that the change in Byford should

be applied to her because it narrowed the

definition of premeditated murder before

Babb’s conviction became final.

The district court also determined that, because the

change in the law announced in Byford occurred before

Babb’s conviction became final, it was a violation of her due

process rights not to apply the new instruction (which

narrowed the scope of conduct that could be defined as

premeditated murder) to her case. We agree with the district

court.

The district court cited Fiore and Bunkley as the bases for

its decision. In Fiore, the Supreme Court invalidated a 6
BABB V. LOZOWSKY 23

violation, “not the state law error,” that triggers habeas relief). The fact

that the Nevada Supreme Court held in Nika that the Byford instruction

should be applied to cases such as Babb’s involving convictions that were

not final at the time Byford was decided, is not dispositive under AEDPA

because Nevada law is not clearly established federal law. See Estelle v.

McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764

(1990) (“[F]ederal habeas corpus relief does not lie for errors of state

law.”)). 

conviction based on a clarification of state law. 531 U.S. at

227. The petitioner in Fiore had been convicted under a

Pennsylvania statute that prohibited operating a hazardous

waste facility without a permit. Id. Although Fiore in fact

had a permit, he deviated so far from the permit’s terms that

he was found to have violated the statute. Id. at 226–27.

After his conviction became final, the Pennsylvania Supreme

Court held that one who deviates from his permit’s terms

does not lack a permit and could not be found to be in

violation of the statute. Id. at 227. Subsequently, Fiore

petitioned for federal habeas corpus relief.

The Supreme Court granted certiorari, in part, to decide

when or whether the federal Due Process Clause requires the

retroactive application of a new interpretation of a state

criminal statute. Id. In order to determine if that question

was in fact presented, the Supreme Court certified a question

to the Pennsylvania Supreme Court, asking whether its

decision that someone with a permit could not violate the

statute prohibiting operating a machine without a permit was

a new interpretation (i.e. a change in the law) or a

clarification (i.e. a correct statement of the law at the time

Fiore’s conviction became final). Id. The Pennsylvania

Supreme Court responded that the interpretation “did not

announce a new rule of law” but rather “clarified the plain

language of the statute . . . furnish[ing] the proper statement
24 BABB V. LOZOWSKY

of law at the date Fiore’s conviction became final.” Id. at

228. The Supreme Court held that, given that Pennsylvania’s

new ruling was not new law, the question was “simply

whether Pennsylvania can, consistently with the federal Due

Process Clause, convict Fiore for conduct that its criminal

statute, as properly interpreted, does not prohibit.” Id. The

Supreme Court held that Fiore’s conviction and continued

incarceration violated due process, citing the rule that the

State must prove the elements of a crime beyond a reasonable

doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 316

(1979), and In re Winship, 397 U.S. at 364).

Because there had been a clarification in the law, the

Supreme Court in Fiore did not decide whether or under what

circumstances a change in state law should be applied to

invalidate a prior conviction. The Supreme Court did

subsequently address this issue, however, in Bunkley. As in

Fiore, the Supreme Court in Bunkley considered the impact

of a change in the interpretation of a state statute on a

conviction. 538 U.S. at 838. The petitioner in Bunkley had

been convicted of burglary in the first degree. Bunkley

received a life sentence because he was carrying a

pocketknife with a 2.5 to 3-inch blade at the time of the

crime, which the jury concluded was a deadly weapon. Id. at

836–37. Although the statute created an exception for the

“common pocketknife,” the term was undefined. Id. at 837.

If the pocketknife exception had applied, Bunkley could only

have been convicted of burglary in the third degree, which

had a maximum sentence of five years. Id. After Bunkley’s

conviction became final, the Florida Supreme Court

determined that a knife with a blade of 3.75 inches plainly fell

within the exception. Id. Bunkley sought state habeas relief,

but the Florida Supreme Court declined, stating that its ruling
BABB V. LOZOWSKY 25

 The Supreme Court has also held that due process requires the 7

retroactive application of substantive changes in federal law that narrow

the scope of a criminal statute, and that this even extends to convictions

that are final at the time of the change. Bousley v. United States, 523 U.S.

614 (1998). Whether this principle of retroactivity extends to changes in

state law is the question that was explicitly left open in both Fiore and

Bunkley.

was an “evolutionary refinement in the law,” id. at 838,

which did not apply retroactively under Florida law.

On federal habeas review, the Supreme Court certified a

question to the Florida Supreme Court, asking whether, at the

time Bunkley’s conviction became final in 1989, his 2.5–3

inch pocketknife was a weapon under the law at that stage in

its evolution. The Court understood that the Florida ruling

represented a change in state law, and noted the importance

of when the change occurred. The Supreme Court said that

“If Bunkley’s pocketknife fit within the ‘common

pocketknife exception [] in 1989 [when his conviction

became final], then Bunkley was convicted of a crime for

which he cannot be guilty . . . .” Id. at 841 (emphasis added).

The Supreme Court thus indicated that failing to apply a

potentially exonerating change in the law to a conviction

which was not final at the time of the change would have the

same effect as failing to apply a clarification of the law; it

would permit the state to convict someone without proving

the elements of the crime in violation of the Due Process

Clause. Id.

The rulings in Bunkley and Fiore confirm that the

Supreme Court’s holding in Griffith v. Kentucky, 479 U.S.

314 (1987) – that newly declared constitutional rules must be

applied to convictions that were not yet final at the time the

change occurs – extends to some changes in state law. One 7
26 BABB V. LOZOWSKY

principle underlying Griffith is that it is a violation of due

process to affirm a conviction “when the new ruling was that

a trial court lacked authority to convict a criminal defendant

in the first place.” 479 U.S. at 324 (citing United States v.

Johnson, 457 U.S. 537, 550 (1982)). This principle would

necessarily apply to a change in the definition of the elements

of mens rea for first degree murder. “New elements alter the

range of conduct the statute punishes, rendering some

formerly unlawful conduct lawful or vice versa.” Schriro v.

Summerlin, 542 U.S. 348, 354 (2004).

While Griffith alone would not be sufficient to invalidate

Babb’s conviction because the change at issue was a change

in state law, see Murtishaw v. Woodford, 255 F.3d 926,

955–56 (9th Cir. 2001), Bunkley confirmed that it is a

violation of due process not to apply changes in state law to

a petitioner’s conviction that was not final at the time the

change occurred. 538 U.S. at 841 (“If Bunkley’s pocketknife

fit within the ‘common pocketknife’ exception [before his

conviction became final], then Bunkley was convicted of a

crime for which he cannot be guilty.”).

The State argues that Bunkley is merely persuasive

authority, because the Supreme Court in that case did not

actually hold that due process requires that changes in state

law be applied to convictions that are not yet final, but only

certified a question to the Florida Supreme Court. Although

the Supreme Court stopped short of holding that changes in

state law must be applied to convictions that are not yet final,

Bunkley confirmed that failing to apply such changes would

have the same effect as failing to give retroactive application

to a clarification; it would permit the state to convict

individuals who are not guilty of a crime under the applicable

law. Thus, after the Supreme Court’s decision in Bunkley, it
BABB V. LOZOWSKY 27

was an unreasonable application of established federal law

and a violation of Babb’s due process rights for the Nevada

court not to apply the change in Byford, which narrowed the

category conduct that can be considered criminal, to her case.

While it does not constitute an express holding, Bunkleymade

clear that Griffith’s holding, requiring new rules to apply to

convictions that are not yet final, extends to changes in state

law that narrow the category of conduct that can be

considered criminal. See Williams v. Taylor, 529 U.S. 362,

407 (2000) (noting that “a state-court decision also involves

an unreasonable application of [the Supreme Court’s]

precedent if the state court . . . unreasonably refuses to extend

that principle to a new context where it should apply”).

Byford, which narrowed the scope of conduct that could

qualify as first degree murder by expanding and separating

definitions of premeditation, deliberation and willfulness,

should be applied to Babb’s conviction, which was not final

at the time Byford was decided.

III. Harmless Error

Although the Nevada state court unreasonably applied

established federal law when it failed to apply the change in

Byford to Babb, “a court must assess the prejudicial impact of

constitutional error in a state court criminal trial.” Fry v.

Pliler, 551 U.S. 112, 121 (2007). We must ask whether there

is a reasonable probability the error “‘had substantial and

injurious effect or influence in determining the jury’s

verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)). “[W]here the record is so evenly balanced that a

conscientious judge is in grave doubt as to the harmlessness

of an error,” the petitioner must win. O’Neal v. McAninch,

513 U.S. 432, 437 (1995).
28 BABB V. LOZOWSKY

 Babb argues that the government waived the harmless error defense by 8

failing to raise it before the district court. Because the district court

addressed the issue, however, and because the parties thoroughly

addressed it in their briefs before this Court, we consider it. Selam v.

Warm Springs Tribal Corr. Facility, 134 F.3d 948, 952 (9th Cir. 1998)

(citing Willard v. California, 812 F.2d 461, 465 (9th Cir. 1987), and

addressing an issue not raised by parties because it was addressed by the

district court); see also Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002)

(noting that courts may address issues not raised before the district court

where “the issue presented is purely one of law and the opposing party

will suffer no prejudice as a result of the failure to raise the issue in the

trial court”).

The district court in this case concluded that the general

verdict prevented it from determining whether the erroneous

Kazalyn instruction had influenced the jury in Babb’s case,

and said that it harbored “grave doubts” concerning the

harmlessness of the error. The State claims that rather than 8

apply the Brecht standard to assess the effect and influence of

the erroneous instruction, the district court essentially treated

the error here as a structural error, thus violating the Supreme

Court’s recent holding in Hedgpeth v. Pulido, 555 U.S. 57

(2008), that instructional errors occurring in the context of a

general verdict must still be reviewed for harmless error.

Instructional errors are generally subject to harmless error

review. Neder, 527 U.S. at 7; California v. Roy, 519 U.S. 2,

5 (1996) (per curiam); Pope v. Illinois, 481 U.S. 497, 501

(1987). General verdicts, however, which permit a jury to

convict based on different possible theories – without

specifying the theory that forms the basis of the verdict – can

complicate this analysis. “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, 555 U.S. at 58 (citing Stromberg v.
BABB V. LOZOWSKY 29

California, 283 U.S. 359 (1931) and Yates v. United States,

354 U.S. 298 (1957)). Even in the context of a general

verdict, however, instructional errors must still be subjected

to harmless error review. Id.

In Hedgpeth, the Supreme Court reversed a decision by

this Court that a conviction based on a general verdict

constituted structural error. 555 U.S. at 62. The instructions

included an unconstitutional error that permitted the jury to

convict based on an invalid theory of guilt. This Court held

that because it could not be “absolutely certain” that the jury

had relied on a valid ground, such convictions were exempted

as a whole from harmless error review. Id. (quoting Pulido

v. Chrones, 487 F.3d 669, 676 (9th Cir. 2007)). The Supreme

Court explained that following its decision in Chapman v.

California, 386 US. 18 (1967), constitutional errors, such as

instructional errors occurring in the context of a general

verdict, should not be treated as structural errors. The Court

explained that substantial and injurious effects should not be

presumed simply because a general verdict form had been

used, and remanded the case for harmless error review.

555 U.S. at 62.

The Supreme Court in Hedgpeth provided no guidance

regarding how to assess the impact of an erroneous

instruction in the context of a general verdict. Generally,

however, when considering whether erroneous instructions

constitute harmless error, courts ask whether it is reasonably

probable that the jury would still have convicted the

petitioner on the proper instructions. Belmontes v. Brown,

414 F.3d 1094, 1139 (9th Cir. 2005) (construing Brecht to

require “a reasonable probability” that the jury would have

reached a different verdict), rev’d on other grounds sub nom.

Ayers v. Belmontes, 549 U.S. 7 (2006).
30 BABB V. LOZOWSKY

 There is, of course, no way to be absolutely certain what leads a juror 9

to a particular decision. As the Supreme Court emphasized in Hedgpeth,

“absolute certainty” is not the standard for a court considering whether an

Here, however, we need not inquire into the probability

that the jury, if given the proper instruction on premeditated

murder, would have convicted Babb on that theory, because

although the trial court gave an erroneous instruction on

premeditation, we can discern with reasonable probability

that the jury instead convicted Babb on a valid felony murder

theory. In order to convict Babb based on the felony murder

theory, the jury only had to find that she was guilty of

robbery, and that Castro was killed during the perpetration of

the robbery. The jury found Babb guilty of robbery, and the

facts in this case leave no doubt that Castro was killed in

perpetration of the robbery. In addition, during closing

argument, the prosecutor focused almost exclusively on the

felony murder theory with regard to Babb. In light of this

overwhelming evidence supporting the felony murder theory,

we can be reasonably certain that no juror convicted Babb

based on premeditation because the jury was specifically

instructed to only consider premeditated murder if felony

murder did not apply. See, e.g., United States v. Hastings,

134 F.3d 235, 242 (4th Cir. 1998) (if the evidence that the

jury “necessarily credited in order to convict the defendant

under the instructions given . . . is such that the jury must

have convicted the defendant on the legally adequate ground

. . . instead of the legally inadequate ground, the conviction

may be affirmed”). Under these circumstances, despite the

general verdict, the erroneous instructions constituted

harmless error, and the district court erred in concluding

otherwise.9
BABB V. LOZOWSKY 31

error was harmless, and employing such a standard is tantamount to

determining that all instructional errors occurring in the context of a

general verdict are structural errors. 555 U.S. at 62.

We emphasize that the issue is not simplywhether we can

be reasonably certain that the jury could have convicted Babb

based on the valid theory of felony murder. See Kotteakos,

328 U.S. at 765 (“The inquiry cannot be merely whether there

was enough to support the result.”). The Supreme Court’s

point in Hedgpeth, that a combination of good and bad

instructions should not be considered more pernicious than a

single improper instruction, 555 U.S. at 61, is well taken.

When reviewing convictions, however, 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. O’Neal, 513 U.S. at 437. Here, however, we can

be reasonably certain, based on the particular circumstances

and instructions in this case, that the jury did convict Babb

based on the valid felony murder theory and that the

premeditation instruction did not have a substantial impact on

the jury’s decision.

Babb raised other claims in her petition which were not

addressed by the district court. We thus remand the case to

give the district court the opportunity to consider these

claims.

REVERSED and REMANDED.