* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Dale Todd, Senior United States District Judge for the Western District of Tennessee, sitting by designation. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
DENISE DIANNA BUCHANAN, Petitioner - Appellant,

v. SHERYL FOSTER, Warden; et al., Respondents - Appellees. No. 09-16578D.C. No. 3:06-cv-00340-LRHRAM
MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding Argued and Submitted July 13, 2010 San Francisco, California Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior District Judge. ** Denise Dianna Buchanan appeals the di strict court’s denial of her petition for a writ of habeas corpus under 28 U.S.C . § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. The parties are familiar with the facts of the case, so we 

# FILED
JUL 21 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 repeat them here only to the extent nece ssary to explain our decision. We review de novo the district court’s denial of the habeas petition, see Koerner v. Grigas , 328 F.3d 1039, 1045 (9th Cir. 2003), and we affirm. Buchanan’s petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDP A, a state prisoner is entitled to relief if the state court adjudication of a claim le d to “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” or “that 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)(1 ), (2). “The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision.” Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008). Here, we review the Nevada Supreme Court’s decisi on to determine whether habeas relief is available under AEDPA. Buchanan alleges that the state trial c ourt’s jury instruction on the definition of first-degree murder, which first appeared in Kazalyn v. State , 825 P.2d 578 (Nev. 1992), deprived Buchanan of due pr ocess by relieving the state of its burden to prove that the killing of her sons was both deliberate and premeditated. Assuming the jury instruction error constituted a violation of Buchanan’s due3 process rights, Buchanan is not entitled to relief unless she can show that “‘the error had a substantial and injurious effector influence in determining the jury’s verdict.’” Polk v. Sandoval , 503 F.3d 903, 911 (9th Cir. 2007) (quoting Brecht v. Abrahamson , 507 U.S. 619, 637 (1993)). A “substantial and injurious effect” exists when there is a “reasonable probability ” that the jury would have arrived at a different verdict had the prope r instruction been given. See Clark v. Brown , 450 F.3d 898, 916 (9th Cir. 2006). In Nevada, the element of deliberati on requires “a dispassionate weighing process and consideration of c onsequences before acting.” Byford v. State , 994 P.2d 700, 714 (Nev. 2000). “Circumstantial evidence may be considered and provide sufficient evidence to infer” the element of deliberation. Leonard v. State , 17 P.3d 397, 411 (Nev. 2001). The evidence of deliberation regardi ng these two crimes renders any jury instruction error here harmless. Thr ee of Buchanan’s very young children died under similar circumstances over a five-y ear period, and the jury reasonably rejected Buchanan’s defense in concl uding that the latter two deaths were not natural. The jury heard three differentforensic pathologists testify that the probable manner of death was asphyxiati on by suffocation. The county coroner testified of the statistical improbability or impossibility that John and Jacob died of4 SIDS. The jury heard testimony that the apnea monitors of both John and Jacob were turned off when they died. Th ere were inconsistencies in Buchanan’s recitation of the events surrounding the deaths of John and Jacob. For example, after Jacob’s death, Buchanan told the police that she had turned off Jacob’s monitor around 7 a.m., but the monitor’s inte rnal record indicated that it had been turned off at 3:56 a.m. Numerous witn esses testified of Buchanan’s lack of remorse in the aftermath of her childre n’s deaths. In light of the evidence presented at trial, we conclude thatthe state court’s decision that the Kazalyn instruction error was harmless was neith er contrary to nor an unreasonable application of Supreme Court harmless error precedent. See Inthavong v. Lamarque , 420 F.3d 1055, 1059 (9th Cir. 2005). Buchanan also presented two uncertified issues in her opening brief, alleging that there was insufficient evidence to sustain her conviction beyond a reasonable doubt and that the prosecution in bad faith destroyed exculpatory evidence. We deny Buchanan’s request to expand the cer tificate of appealability because she has not made a “substantial showing of the de nial of a constitutional right.” 28 U.S.C. § 2253(c)(2). AFFIRMED

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