FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER M. CHAMBERS,  No. 07-15773

Petitioner-Appellant, D.C. No.

v.  CV-04-073-RCJVPC E.K. MCDANIEL,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the District of Nevada

Robert C. Jones, District Judge, Presiding

Argued and Submitted

June 10, 2008—San Francisco, California

Filed December 9, 2008

Before: J. Clifford Wallace and Susan P. Graber,

Circuit Judges, and Robert J. Timlin,* District Judge.

Opinion by Judge Timlin;

Dissent by Judge Wallace

*The Honorable Robert J. Timlin, United States District Judge for the

Central District of California, sitting by designation. 

16143
COUNSEL

Linda Marie Bell, Assistant Federal Public Defender, Las

Vegas, Nevada, for the petitioner-appellant. 

Robert E. Wieland, Senior Deputy Attorney General, Criminal Justice Division, Reno, Nevada, for the respondentappellee. 

OPINION

TIMLIN, District Judge: 

Roger Chambers appeals the district court’s denial of his

second amended petition for habeas corpus, under 28 U.S.C.

§ 2254, challenging his conviction for murder in the first

degree and his sentence of two consecutive sentences of life

without the possibility of parole by a Nevada state trial court.

We have jurisdiction pursuant to 28 U.S.C. § 2253. We hold

that Chambers’ federal constitutional right to due process was

violated because the instructions given at his trial permitted

the jury to convict him of first-degree murder without a finding of the essential element of deliberation. The error was not

harmless. Accordingly, we reverse and remand to the district

court to grant the writ unless the State elects to retry Chambers within a reasonable time. 

BACKGROUND

A. Factual Background 

In 1994, Chambers was convicted of first degree murder

with the use of a deadly weapon by a jury in a Nevada state

trial court, and Chambers was sentenced to death. 

The charges and conviction arose out of an altercation

between Chambers, a chef by profession, and Henry Chacon

CHAMBERS v. MCDANIEL 16147
on September 28, 1993. Chambers met Chacon while traveling by bus from San Francisco to Reno. While on the bus,

Chambers and Chacon became acquainted and ingested alcohol and cocaine together. Upon arriving in Reno, they rented

a hotel room to share in the Circus Circus casino and hotel.

Chambers and Chacon went to the room together, but Chambers subsequently went downstairs and played poker. When

he returned to the room, he found Chacon burning heroin to

smoke on Chamber’s set of professional chef knives. When

Chambers saw this, he became angry, and the two began to

fight. According to Chambers, Chacon initially stabbed

Chambers with a knife, but Chambers got the knife away

from Chacon. A struggle ensued, which resulted in Chacon’s

death. 

The morning after the fight, Chambers went to the Washoe

Medical Center. When asked why he was there, Chambers

responded, “There’s a dead body in the room.” He then stated

that he did not mean to do it. Hospital staff checked Chambers

into the hospital, noting that he appeared to be intoxicated, as

he was unsteady and his speech was rapid and disjointed. A

nurse administered a breathalyzer test, which showed a blood

alcohol level of 0.27. 

The police arrived to interview Chambers, who admitted

that he had killed someone and that the victim was in the

bathtub. Chambers told the police officers how he and Chacon

had met, and stated that he had got angry when he saw Chacon cooking heroin on one of the knives he used in his profession. Chambers asserted that Chacon had stabbed him first,

and that he wrestled the knife away from Chacon and stabbed

him back several times. He repeatedly told the police officers

that he stabbed Chacon in self-defense. 

Based on Chambers’ statement, the police went to Circus

Circus where they discovered Chacon’s body in the hotel

room’s bathtub. In the bathroom, they also located a black

canvas bag with several pockets holding knives and other

16148 CHAMBERS v. MCDANIEL
kitchen utensils. Also next to the sink the police found two

knives, with sooty deposit on the blades suggesting that they

were used to smoke heroin. 

Police subsequently took Chambers into custody, and he

was transported to the Reno Police Department. Chambers

was read his Miranda rights, which he waived. A drug recognition expert examined Chambers and concluded that he was

under the influence of a central nervous system stimulant.

After this determination, the officers questioned Chambers

again for four hours, with a video camera recording the interview. After Chambers was booked, blood and urine samples

were obtained. The urine sample contained amphetamine,

methamphetamine, a trace of morphine, and marijuana metabolites. No narcotics were found in his blood. 

At trial, the results of the autopsy of Chacon were presented into evidence. The coroner testified that Chacon had

seventeen stab wounds, most of which were superficial. However, two stab wounds were significant: one into the front

chest that passed through the lung and the sack covering the

heart, and the second in the back that also passed into the

chest and into a lung, causing the collapse of the lung. 

A jury found Chambers guilty of first-degree murder and

also found two aggravating circumstances warranting a death

sentence. Chambers was sentenced to death. 

B. Procedural Background

Chambers appealed his conviction to the Nevada Supreme

Court, challenging the reasonable doubt jury instruction, the

admission of certain evidence, and the court’s failure to properly admonish the jury. He also argued that the death penalty

was excessive and should be set aside. The Nevada Supreme

Court affirmed the conviction, but set aside the death penalty,

directing the imposition of a life sentence without the possibility of parole. Following a petition for writ of mandamus by

CHAMBERS v. MCDANIEL 16149
the State arguing that the appropriate sentence was two life

sentences without the possibility of parole, the Nevada

Supreme Court granted the writ, and Chambers was resentenced to serve two consecutive life terms without the possibility of parole. 

Chambers then filed a petition styled as a “Notice of

Appeal; Writ of Habeas Corpus/Post-Conviction Petition” in

the Nevada state trial court. The court dismissed the petition,

but upon appeal the Nevada Supreme Court reversed the dismissal, finding that the trial court improperly construed this

document as a habeas corpus petition, when it was simply a

notice of Chambers’ future intent to file a habeas petition. 

During this time, Chambers filed in the state trial court a

habeas corpus petition asserting sixteen detailed claims for

relief. After the court appointed counsel to proceed with the

petition, an additional claim was added to the petition. The

state trial court denied the petition on April 18, 2000. Chambers appealed, and the Nevada Supreme Court affirmed the

denial of Chambers’ petition on July 12, 2001. 

On July 27, 2001, Chambers filed a habeas corpus petition

in federal district court. After the Federal Public Defender

was appointed, Chambers filed a first amended petition alleging ten grounds for relief. The government filed a motion to

dismiss, contending that Chambers had failed to exhaust his

state court remedies as to five grounds for relief asserted by

Chambers. The district court granted the motion to dismiss in

part, finding four grounds for relief had not been exhausted,

including Ground One of the Petition challenging the state

court’s jury instruction on premeditation and deliberation as

a violation of his constitutional right to due process. 

In its Order, the federal district court gave Chambers the

option of abandoning the unexhausted grounds and proceeding on those which remained, or voluntarily dismissing the

entire petition to return to state court to exhaust his state rem16150 CHAMBERS v. MCDANIEL
edies for the unexhausted grounds for relief. Chambers chose

to return to state court, and on November 3, 2003, the district

court ordered the case dismissed without prejudice and stated

that Chambers could return to the district court and move to

reopen the action once he had exhausted his state court remedies with respect to the unexhausted claims. 

On November 12, 2003, Chambers filed a Petition for

Extraordinary Writ with the Nevada Supreme Court, alleging

the four unexhausted grounds for relief. On December 3,

2003, the Nevada Supreme Court denied the petition, stating

that “[w]e have considered the petition on file herein, and we

are not satisfied that this court’s intervention by way of

extraordinary relief is warranted at this time.”

After Chambers’ case was reopened in federal district

court, Chambers refiled his second amended habeas petition

(“petition”) on March 22, 2004. The State filed a motion to

dismiss arguing that Chambers had failed to properly exhaust

his state remedies when he filed the Petition for Extraordinary

Writ in Nevada Supreme Court, and the district court denied

that motion. 

On December 13, 2006, after the State had answered

Chambers’ petition, the district court denied the petition.

Chambers filed this timely appeal. 

EXHAUSTION

The State first argues that Chambers’ constitutional due

process claim concerning the jury instruction on premeditation given at his trial is not properly brought to federal court

because Chambers failed to exhaust his state remedies as to

that claim. We review de novo whether a petitioner has

exhausted state remedies. Greene v. Lambert, 288 F.3d 1081,

1086 (9th Cir. 2002). 

[1] A state prisoner must exhaust a federal constitutional

claim in state court before a federal court may consider a

CHAMBERS v. MCDANIEL 16151
claim. 28 U.S.C. § 2254(b)(1)(A), (c). The exhaustion

requirement, first enunciated in Ex parte Royall, 117 U.S. 241

(1886), and subsequently codified in 28 U.S.C. § 2254, is

“grounded in principles of comity and reflects a desire to

‘protect the state courts’ role in the enforcement of federal

law.’ ” Castille v. Peoples, 489 U.S. 346, 349 (1989) (quoting

Rose v. Lundy, 455 U.S. 509, 518 (1982)). Pursuant to

§ 2254(c), exhaustion typically requires that “state prisoners

must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the

State’s established appellate review process.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). However, “exhaustion

does not require repeated assertions if a federal claim is actually considered at least once on the merits by the highest state

court.” Greene, 288 F.3d at 1086 (citing Castille, 489 U.S. at

350). 

Here, Chambers did not invoke one complete round of

Nevada’s “established appellate review process” with regard

to his due process claim concerning the premeditation jury

instruction. He did raise the issue in his original habeas corpus petition filed in state trial court but, as the district court

correctly found, he failed to identify the federal nature of the

claim when he appealed the lower court’s decision of denial

to the Nevada Supreme Court. 

[2] Subsequently, however, Chambers did raise his constitutional due process claim concerning the premeditation jury

instruction in a Petition for Extraordinary Writ filed with the

Nevada Supreme Court on November 12, 2003. Therefore,

because Chambers did in fact bring his claim to the attention

of the highest state court, “[o]ur decision hinges on what happened to his [writ]. If the [Nevada] Supreme Court declined

to apply the procedural bar that was available to it and adjudicated the claim on the merits, then the claim may proceed.”

Greene, 288 F.3d at 1086 (citing Castille, 489 U.S. at 351, as

recognizing exception where the state has actually passed on

the claim). 

16152 CHAMBERS v. MCDANIEL
The Nevada Supreme Court decided Chambers’ Petition for

an Extraordinary Writ when it denied the petition. The court’s

order is brief, stating simply: “This is a proper petition for an

extraordinary writ. Petitioner challenges the validity of his

judgment of conviction and sentence. We have considered the

petition on file herein, and we are not satisfied that this

court’s intervention by way of extraordinary relief is warranted at this time. Accordingly, we order the petition

denied.” A footnote to the order elaborates on the Nevada

Supreme Court’s rationale: “We have considered all proper

person documents filed or received in this matter, and we conclude that the relief requested is not warranted.” (emphasis

added). 

Article VI, section 4 of the Nevada Constitutions grants the

Nevada Supreme Court original jurisdiction to issue writs. See

Nev. Const. Art. VI, § 4 (“The [Nevada Supreme Court] shall

also have power to issue writs of mandamus . . . and habeas

corpus and also all writs necessary or proper to the complete

exercise of its appellate jurisdiction.”); see Blair v. Crawford,

275 F.3d 1156, 1158 (9th Cir. 2002). The Nevada Supreme

Court issues writ relief only “at the discretion of th[e] court,”

and the petitioner carries the burden of demonstrating that

extraordinary relief is warranted. See State v. Eighth Judicial

Dist. Court, 42 P.3d 233, 237 (Nev. 2002) (per curiam); Pan

v. Eighth Judicial Dist. Court, 88 P.3d 840, 844 (Nev. 2004)

(per curiam). Because Chambers’ federal claim regarding the

premeditation jury instruction was raised for the first time in

this discretionary context, the Nevada Supreme Court would

have been within its discretion to dismiss the petition on the

procedural grounds that it should have been filed in the district court or to deny it without comment. 

Had the Nevada Supreme Court denied the petition without

opinion, that denial would have brought Chambers’ claim

within the reach of the Supreme Court’s holding in Castille,

489 U.S. at 351, that exhaustion is not satisfied “where the

claim has been presented for the first and only time in a proCHAMBERS v. MCDANIEL 16153
cedural context in which its merits will not be considered

unless there are special and important reasons therefor.”

(Internal quotation marks omitted); see also Casey v. Moore,

386 F.3d 896, 916 (9th Cir. 2004). However, Castille does not

address the question presented here, as Castille involved only

a state court’s rejection without comment of a new claim in

an extraordinary motion and does not tell us what to do when

a court has in fact spoken on the issue. 

[3] Here, the Nevada Supreme Court did not deny without

comment or opinion. Instead, the court issued an order stating

that it had “considered the petition on file” and that its intervention “by way of extraordinary relief” was not warranted at

this time. Importantly, the court reiterated in the footnote that

it “had considered” all the documents filed and received in the

matter, and that it “concluded that the relief requested is not

warranted.” Pursuant to our reasoning in Greene, we must

therefore decide if the Nevada Supreme Court reached the

merits of Chambers’ claim or decided the petition on procedural grounds only. Whether Chambers’ due process claim is

exhausted turns on the outcome of this inquiry. 

[4] A fair and plausible reading of the Nevada Supreme

Court’s order of denial is that the court considered the merits

of Chambers’ claim, but was not persuaded as to its validity.

The court did not state that it would not consider the claim,

but rather that it would not “intervene.” In fact, in the footnote, the court explicitly stated that it had considered all the

documents filed with the court, and that it had reached the

conclusion that relief was not warranted. The most logical

reading of this sparse text is that the court considered the

arguments of the parties and the documentation filed by them

and came to a conclusion about their merits. For a court to

consider all the materials filed in conjunction with a petition

for a writ and to then “conclude” that relief is not warranted

strongly suggests that such a “conclusion” is on the merits.

This order “cannot be fairly characterized as merely procedural. The court understood the nature of the claim and took

16154 CHAMBERS v. MCDANIEL
pains to respond to it, albeit curtly and ambiguously.” Greene,

288 F.3d at 1087. 

Even if this order is curt and ambiguous, we have previously addressed how to resolve an ambiguity of this kind. See

id.; see Harris v. Superior Court, 500 F.2d 1124, 1128-29

(9th Cir. 1974) (en banc). As further elucidated in our opinion

in Greene, the reasoning in Harris guides the resolution of

such ambiguity: 

Harris involved a so-called “postcard denial” from

the California Supreme Court. We held in that case

that the state court’s denial of a habeas petition on

procedural grounds did not exhaust state remedies,

but (citing Brown, 344 U.S. at 449 n.3, 73 S.Ct. 397)

that the state court’s denial of a habeas petition on

the merits did exhaust state remedies. Harris, 500

F.2d at 1128-29. We construed a bare postcard

denial from the California Supreme Court as a decision on the merits, for purposes of the exhaustion

requirement, unless that court expressly relied on a

procedural bar. Id. In other words, although the

state supreme court’s response was ambiguous, we

adopted a plausible construction that it acted on the

merits of a claim presented to it. We have not overruled Harris. 

Greene, 288 F.3d at 1087 (emphasis added; footnote omitted);

see also Hunter v. Aispuro, 982 F.2d 344, 347-48 & n.2 (9th

Cir. 1992). 

[5] Therefore, unless a court expressly (not implicitly)

states that it is relying upon a procedural bar, we must construe an ambiguous state court response as acting on the merits of a claim, if such a construction is plausible. A

comparison of the language in Harris — which was found to

be a decision on the merits by the California Supreme Court

— to the language used by the Nevada Supreme Court in the

CHAMBERS v. MCDANIEL 16155
instant case is instructive. In Harris, the “postcard denial”

found to be a decision on the merits merely stated “Petition

for Writ of Habeas Corpus denied.” We noted in Harris that,

in cases where the California Supreme Court relied upon procedural deficiencies as a basis for denying the petition, the

court often included after the language of denial a “citation of

an authority which indicates that the petition was procedurally

deficient.” 500 F.2d at 1128. However, where the California

Supreme Court includes no citation and simply states that the

petition is denied, that absence of a citation coupled with the

cursory statement denying the petition satisfies the exhaustion

requirement. 

[6] In this case, even more than in Harris, it is appropriate

to construe the state court’s order of denial as having been

made on the merits. The Nevada Supreme Court here did

more than issue a postcard denial. It stated in its order that it

had “considered” all the materials filed by the parties, which

indicates that it not only read the materials, but ruminated as

to their merits. Then, the court stated it had “concluded” that

intervention was not necessary. A conclusion that intervention

is not necessary based on a consideration of all the documents

filed is not a decision based on a procedural irregularity, but

rather a decision on the merits. 

The Ninth Circuit’s analysis of another order denying a

petition for a writ of habeas corpus by the Nevada Supreme

Court is also instructive in construing the instant order. In

Alexander v. Fogliani, 375 F.2d 733, 735 (9th Cir. 1967), the

Ninth Circuit found a denial of a writ of habeas corpus petition filed directly with the Nevada Supreme Court to be

“clearly on the merits” and therefore also held that the petitioner had exhausted his state court remedies based on the following language by the Nevada Supreme Court: “The court

has read the petition for release on habeas corpus and finds

from the face of the petition and attached documents that petitioner’s present confinement is in all respects legal. Therefore,

it is ordered that the petition for habeas corpus be and the

16156 CHAMBERS v. MCDANIEL
same and is denied.” Two similarities exist in the Nevada

Supreme Court’s orders in the instant case and in Alexander:

1) in both, the court acknowledges that it has read and considered the petition and all the other materials filed by the parties, and 2) after such consideration, the courts find that relief

is not warranted based on the petitioner’s arguments. Again,

both orders may be ambiguous, but pursuant to Harris, we

must ascertain whether a plausible construction exists that

these were decisions on the merits. In both cases, they do. See

also Blair v. Crawford, 275 F.3d 1156, 1158 (9th Cir. 2002)

(holding, in the context of a discussion about AEDPA statute

of limitations, that a Nevada Supreme Court’s use of similar

language as in the instant case indicated that the court “construed and denied Blair’s petition”). 

Finally, the language used by the Nevada Supreme Court

in other cases involving petitions for extraordinary writs is

illuminating. In Hosier v. State, 117 P.3d 212, 213 (Nev.

2005) (per curiam), a decision filed two years after Chambers’

petition for an extraordinary writ was denied, the Nevada

Supreme Court held that “[a]lthough this court retains original

jurisdiction to issue writs, this court will not exercise its original jurisdiction to consider a writ petition in a criminal case

raising claims that could or should have been raised in an

appeal or in an appropriate post-conviction proceeding in the

district court.” The court then concludes: “we decline to exercise this court’s original jurisdiction to consider this original

petition challenging the validity of the judgment of conviction.” Id. What is clear from Hosier is that the Nevada

Supreme Court is capable of clearly and unambiguously denying a petition for an extraordinary writ on procedural grounds

and that, when it does so, the court will state that it “decline[s]

to exercise its original jurisdiction to consider” the petition. 

Here, the Nevada Supreme Court did not “decline to exercise its original jurisdiction to consider the petition.” Rather,

unlike in Hosier, the Nevada Supreme Court stated that it did

in fact consider the petition and all other filed documents and

CHAMBERS v. MCDANIEL 16157
that it reached a conclusion based on that consideration. The

contrast makes clear that the denial order in this case should

be construed as a decision on the merits. 

Further, Hosier’s discussion of policy reasons for denying

the petition in that case on procedural grounds rather than ruling on the merits actually weighs in favor of construing the

Nevada Supreme Court’s order here as on the merits. The

Nevada Supreme Court points out in Hosier that “[o]riginal

petitions are not accompanied by a complete record on appeal.

Thus, this court’s ability to review claims challenging the

judgment of conviction is seriously limited.” Id. at 213. Further, the Nevada Supreme Court’s appellate jurisdiction is

limited to questions of law alone, and its “consideration of

many petitions of this type would require this court to exceed

its appellate jurisdiction because the claims presented often

require evidentiary and factual determination.” Id.

Here, the question presented in this petition, whether the

premeditation jury instruction given at Chambers’ trial violated his due process rights, is one of law. No factual determinations are necessary. Furthermore, the Nevada Supreme

Court had all the materials it would have needed to consider

this constitutional claim and reach a conclusion on the merits,

as Chambers included the jury instruction at issue in the case.

Therefore, the reasons that Hosier offers for declining to

reach the merits of these petitions are not in play here. 

[7] In summary, we conclude that the Nevada Supreme

Court’s order denying Chambers’ petition for extraordinary

writ was made on the merits and that such denial satisfied the

exhaustion requirement. 

DUE PROCESS CLAIM

[8] On the merits, Chambers contends that the state court’s

rejection of his due process argument about the jury instruction on premeditation given at his trial “resulted in a decision

16158 CHAMBERS v. MCDANIEL
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)(1).

In Polk v. Sandoval, 503 F.3d 903, 911 (9th Cir. 2007), we

held that the same jury instruction on premeditation at issue

here was constitutionally defective, and the Nevada court’s

failure to correct the error “was contrary to clearly established

federal law, as determined by the Supreme Court.” As the parties acknowledge, we are bound by Polk.

1

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)(en banc)(holding that,

unless a case is overruled or becomes clearly irreconcilable

with a Supreme Court holding, a three-judge panel is bound

by the decisions of previous three-judge panels). 

[9] As we did in Polk, we look here at “whether the ailing

instruction by itself so infected the entire trial that the resulting conviction violates due process . . . [T]he instruction . . .

must be considered in the context of the instructions as a

whole and the trial record.” See Estelle v. McGuire, 502 U.S.

62, 72 (1991) (citations and internal quotation marks omitted).

Other instructions given at Chambers’ trial compounded the

error. For example, Instruction No. 26 provided that “[t]he

nature and extent of the injuries, coupled with repeated blows,

may constitute evidence of willfulness, premeditation, and

deliberation.” In this instruction, the three separate elements

are collapsed into one. Instruction No. 22 further confuses the

issue, when it defines second-degree murder as “all other

kinds of murder” and contains no discussion of the lesser

intent requirement for second-degree murder. 

[10] Finally, just as in Polk, the State exacerbated the problem in its closing rebuttal argument by emphasizing the premeditation instruction, as support for its argument that the

jury should find first-degree murder: “Premeditation can be

successive, instantaneous thoughts of the mind. Doesn’t

1We therefore do not address Respondent’s arguments that “Polk was

erroneously decided.” 

CHAMBERS v. MCDANIEL 16159
require it to be planned. Premeditation is pulling the knife,

lifting your arm, and stabbing. Instantaneous thoughts of the

mind to control movement. That’s all you need for premeditation. You read the law. That’s what it tells you.” 

[11] The State argues that the second-degree murder and

manslaughter instructions given in this case specified the correct definitions and therefore the jury would have relied on

those to clear up any confusion created by the instruction on

premeditation. It belies common sense, however, to believe

that a jury could have ascertained the correct standard for

first-degree murder from a jury instruction for second-degree

murder, when the actual instruction for first-degree murder is

defective. Moreover, a review of the jury instructions shows

that the jury was never instructed as to what the elements of

second-degree murder were, but only defined it as “all other

kinds of murder.” Such an instruction would not assist the

jury in ascertaining what the different levels of intent were for

first- and second-degree murder. Therefore, we find that the

instruction infected the entire trial so that the conviction of

Chambers violated due process. 

[12] Our inquiry does not end here. Even though a constitutional error occurred, Chambers is not entitled to relief unless

he can show that “the error had substantial and injurious

effect or influence in determining the jury’s verdict.”

2 Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993). “If we are in grave

doubt as to whether the error had such an effect, the petitioner

is entitled to the writ.” Coleman v. Calderon, 210 F.3d 1047,

1051 (9th Cir. 2000). The entire case here focused on Chambers’ state of mind when he got into an altercation with Chacon and stabbed him seventeen times. The fact that Chambers

2We are aware that the Supreme Court has granted certiorari in a recent

Ninth Circuit case concerning instructional error, Pulido v. Chrones, 487

F.3d 669 (9th Cir. 2007), cert. granted, 128 S.Ct. 1444 (2008). However,

we do not believe that the outcome of Pulido would affect the analysis of

instructional error in Chambers’ case. 

16160 CHAMBERS v. MCDANIEL
had killed Chacon by stabbing him was not an issue; instead,

Chambers was arguing that he acted in self-defense, while the

State was arguing that there was sufficient evidence to show

premeditation. The prosecutor emphasized the instruction in

its closing argument to demonstrate premeditation. Therefore,

the error here did not affect a minor issue at trial, but rather

went to the very heart of the case. 

[13] Further, “[t]he evidence against [Chambers] was not

so great that it precluded a verdict of second-degree murder.

The State’s evidence on deliberation was particularly weak.”

Polk, 503 F.3d at 912. The State cites three pieces of evidence

to support the finding of premeditation: that Chambers

stabbed Chacon seventeen times; that the wounds penetrated

three inches into the body and were located in two separate

clusters of wounds; and that Chambers was not mentally disturbed, but at the most merely drunk. However, this evidence

does not demonstrate the key feature of the element of deliberation: that of a “dispassionate weighing process and consideration of consequences before acting.” Byford, 994 P.2d at

714. Although “[a] deliberate determination may be arrived at

in a short period of time, . . . 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.” Id.

[14] If anything, the evidence presented at trial seems to

weigh in favor of second-degree murder committed while in

the throes of a heated argument. The Nevada Supreme Court’s

summary of the facts in Chambers’ trial amply demonstrates

the weak state of the evidence of deliberation: “Chambers

murdered the victim in a drunken state, which indicated no

advanced planning, during an emotionally charged confrontation in which Chambers was wounded and his professional

tools were being ruined.” Dennis v. State, 13 P.3d 434, 441

(Nev. 2000). In light of the weak evidence of deliberation, we

simply cannot conclude that the instructional error was harmless. “Since we are left ‘in grave doubt’ about whether the

CHAMBERS v. MCDANIEL 16161
jury would have found deliberation on [Chambers’] part if it

had been properly instructed, we conclude that the error had

a substantial and injurious effect or influence on the jury’s

verdict.” Polk, 503 F.3d at 913.

CONCLUSION

Chambers’ federal constitutional due process right was violated by the instructions given by the trial court at his murder

trial, as they permitted the jury to convict him of first-degree

murder without finding separately all three elements of that

crime: willfulness, deliberation, and premeditation. The error

was not harmless. The Nevada Supreme Court’s decision

denying Chambers’ petition for an extraordinary writ and

rejecting his due process claim was contrary to clearly established federal law. Thus, we reverse and remand to the district

court with instructions to grant the writ of habeas corpus and

order the State of Nevada to release Chambers, unless the

State elects to retry Chambers within a reasonable amount of

time.3

REVERSED AND REMANDED. 

WALLACE, Circuit Judge, dissenting: 

I respectfully dissent from the majority’s conclusion that

Chambers exhausted his state court remedies. Therefore, I

would deny Chambers’ petition for writ of habeas corpus and

would remand to the district court to direct the petitioner to

file his claims in the Nevada state courts. 

The majority correctly sets forth that, pursuant to 28 U.S.C.

3Chambers raised other issues on appeal. In light of our decision to

reverse based on the due process violation, we decline to reach those

issues. 

16162 CHAMBERS v. MCDANIEL
§ 2254(b)(1), a state prisoner must exhaust remedies available

in state courts before a federal court may consider a claim.

Exhaustion typically requires that “state prisoners . . . give the

state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999). The exhaustion doctrine is satisfied

“[i]f a petitioner presents his claim to the highest state court

and that court disposes of the claim on the merits.” Hayes v.

Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986). In this case,

neither exhaustion requirement was satisfied. 

First, Chambers did not fairly present his habeas claim

challenging the jury instruction on premeditation and deliberation to the Nevada Supreme Court. As we summarized in

Roettgen v. Copeland, “submitting a new claim to the state’s

highest court in a procedural context in which its merits will

not be considered absent special circumstances does not constitute fair presentation.” 33 F.3d 36, 38 (9th Cir. 1994). Here,

Chambers raised his jury instructions claim for the first time

in state court in a petition for extraordinary writ to the Nevada

Supreme Court. Extraordinary writs are a form of discretionary relief, and only granted in special circumstances. See

Gumm v. Nev. Dep’t of Educ., 113 P.3d 853, 856 (Nev. 2005)

(“[An] extraordinary writ will issue only when the right to the

relief requested is clear and the petitioners have no plain,

speedy and adequate remedy in the ordinary course of law”).

Thus, Chambers did not fairly present his habeas claim to the

state’s highest court. 

Second, the Nevada Supreme Court’s order denying Chambers’ petition for extraordinary writ did not dispose of his jury

instructions claim on the merits. As described above, the

Nevada Supreme Court may exercise its discretion to issue

extraordinary writs only where the petitioner has “no plain,

speedy and adequate remedy in the ordinary course of law.”

Id. In this case, Chambers had a plain, speedy and adequate

remedy: to follow the statutory procedures of filing an

CHAMBERS v. MCDANIEL 16163
amended writ of habeas corpus, stating federal constitutional

claims, in the state trial court, and then appealing any denial

to the Nevada Supreme Court. The Nevada Supreme Court

was thus not required to consider the merits of Chambers’

claim. Indeed, it would be surprising if the court had considered the merits, given that the traditional method of filing a

writ of habeas corpus provided adequate relief. Thus, not surprisingly, the language of the order denying the petition for

extraordinary writ does not state that the Nevada Supreme

Court considered the merits of Chambers’ jury instruction

claim. 

This, of course, is where I part with the majority. No words

in the order suggest that the Nevada Supreme Court decided

the case on the merits; in fact, some language in the order

suggests the opposite. Certainly the statement that the court

“considered the petition” does not indicate that the court

declined to issue the extraordinary writ on the merits of the

constitutional claims. It is fair to assume that the Nevada

Supreme Court carries out its judicial duty and considers each

petition that comes before it. That is, the court reads the petition and evaluates whether it should exercise its discretion to

issue the writ in cases where petitioners have no “plain,

speedy and adequate remedy in the ordinary course of law.”

Clearly, the words “considered the petition” alone do not indicate that the court evaluated the merits of petitioner’s claim.

Similarly, the majority construes the court’s use of the

word “conclude” in its statement that extraordinary relief was

not warranted as strongly suggesting that the court made its

conclusion on the merits. That is too great of a jump for me.

A more plausible reading is that the Nevada Supreme Court

concluded that extraordinary relief was not warranted because

petitioner could file an amended petition for writ of habeas

corpus and follow traditional appellate procedures to bring the

merits of the claim before the court. The language of the order

supports this view. The order reads “we are not satisfied that

this court’s intervention by way of extraordinary relief is war16164 CHAMBERS v. MCDANIEL
ranted at this time.” (emphasis added). Is not this the key?

The court’s statement that intervention was not “warranted at

[that] time” leaves open the possibility that the court could

grant relief at a later time, for example, after an appeal of a

denial of a writ of habeas corpus from the state trial court. If

the court had decided to deny the writ on the merits, there

would be no reason to leave open the option of relief on those

merits at a future date. 

The majority acknowledges that had the Nevada Supreme

Court denied the petition without opinion, Castille v. Peoples

would control and the claims presented for the first time to the

Nevada Supreme Court would not be exhausted. 489 U.S.

346, 351 (1989). The only distinction between the instant case

and Castille is the Nevada Supreme Court’s statement that

“[w]e have considered the petition . . . , and we are not satisfied that this court’s intervention by way of extraordinary

relief is warranted at this time,” along with a footnote indicating that the court had considered all the documents filed. 

Relying on Greene v. Lambert, the majority construes the

Nevada Supreme Court’s cursory statement as a decision on

the merits of Chambers’ claim, even though the circumstances

of Greene differ significantly from those of the instant case.

288 F.3d 1081, 1086-88 (9th Cir. 2002). In Greene, the Washington Supreme Court amended its opinion denying a petitioner’s state habeas petition to address a federal

constitutional claim raised for the first time in a motion to

reconsider. Id. at 1085. In the amended opinion, the Washington Supreme Court stated that it did not have to reach the

issue raised because it could decide the case on narrower

grounds. Id. We recognized that “the Washington Supreme

Court would have been within its discretion simply to deny

the motion or to dismiss it without comment,” instead of

amending the opinion to address the motion. Id. at 1087. Consequently, we were free to engage in analyzing the “cryptic”

amendment to the opinion and conclude that the state court’s

decision was made on the merits. Id. We were ultimately perCHAMBERS v. MCDANIEL 16165
suaded that the exhaustion requirement had been met because

the state court’s decision could not “be fairly characterized as

merely procedural. The court understood the nature of the

claim and took pains to respond to it, albeit curtly and ambiguously.” Id. 

Unlike Greene, the Nevada Supreme Court in this case did

no more than to deny the petition and to issue a summary

statement regarding the denial. There is no fair way to construe the state court’s decision as having been made on the

merits. The most natural characterization of the Nevada

Supreme Court’s dismissal of the claim is that it did so on

procedural grounds, given that the court explicitly held that

the situation did not warrant intervention by way of extraordinary relief. Additionally, nothing in the court’s decision gives

any indication of the “nature of the claim,” and the court’s

decision does not suggest that the court “took pains to respond

to [the claim].” Id. The court merely issued a short statement

denying the petition. 

The majority relies on the rule in Harris v. Superior Court

that unless a court expressly states that it is relying upon a

procedural bar, ambiguous responses should be construed to

mean that the court acted on the merits of a claim, if such a

construction is possible. 500 F.2d 1124, 1128-29 (1974). But

a critical distinction between Harris and the instant case is

apparent: Harris was an appeal from a denial of a writ of

habeas corpus; this case is an appeal from a denial of an

extraordinary writ. As explained above, the Nevada Supreme

Court is not even permitted to exercise its discretion to issue

an extraordinary writ except in special circumstances, as

where there is no other speedy and adequate relief. The rule

announced in Harris thus does not apply to this case. 

Similar reasoning distinguishes Alexander v. Fogliani, 375

F.2d 733, 735 (9th Cir. 1967). As in Harris, the habeas claim

in Alexander came to this court as an appeal from a denial of

a writ of habeas corpus, and not a denial of extraordinary

16166 CHAMBERS v. MCDANIEL
relief. Id. Moreover, the language of the Nevada Supreme

Court’s denial of relief in Alexander clearly evinced a disposition on the merits. As the majority recounts, the Nevada

Supreme Court’s order in that case stated that “the petitioner’s

present confinement is in all respects legal.” Id. No such discussion of the merits is present in the order denying the

extraordinary writ in this case. 

Finally, the majority cites Hosier v. State for the proposition that the Nevada Supreme Court is “capable of clearly and

unambiguously denying a petition for an extraordinary writ on

procedural grounds,” and that the ambiguous language in this

case must therefore be construed as a disposition on the merits. 117 P.3d 212, 213 (Nev. 2005) (per curiam). But the

Nevada Supreme Court is equally capable of clearly and

unambiguously indicating that is denial of an extraordinary

writ petition is on the merits. In Hickey v. Eighth Judicial District Court, the court explicitly stated that it would “exercise

[its] discretion to entertain the merits of the petition,” and

then proceeded to deny the petition. 782 P.2d 1336, 1338

(Nev. 1989). Why then should we construe the ambiguity in

this case as a merits denial, as the majority advocates? We

should not. Given that extraordinary writs are issued only in

special circumstances, I believe the most logical interpretation

of the Nevada Supreme Court’s curt order is a denial on procedural, rather than substantive grounds. 

While the history of Chambers’ appeals process has been

long and complex, the federal court should not shortchange

the state’s opportunity to evaluate all claims on their merits.

We do not respect the state court system when we construe an

order denying an extraordinary writ (where the court is only

expected to review cases on the merits where extraordinary

relief is necessary) as being a decision on the merits. The

Nevada court system must have the full opportunity to

address the merits of Chambers’ federal constitutional claims,

and the order denying the extraordinary writ does not indicate

that the Nevada Supreme Court has done so. There is, of

CHAMBERS v. MCDANIEL 16167
course, a virtue in bringing litigation to a conclusion as soon

as reasonably possible. But our system of federalism requires

that state courts rule on the merits first — especially when a

state crime involving a state-convicted criminal defendant is

challenged in a habeas corpus proceeding. Therefore, I

respectfully dissent. 

16168 CHAMBERS v. MCDANIEL