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Riley v. Filson

United States District Court, D. Nevada

February 16, 2017

BILLY RAY RILEY, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

         In this capital habeas corpus action, on August 19, 2016, pursuant to the order of the Ninth Circuit Court of Appeals published as Riley v. McDaniel, 786 F.3d 719 (2015), this court ordered judgment entered in favor of the petitioner, Billy Ray Riley, and judgment was entered on that date. See Order entered August 19, 2016 (ECF No. 238); Judgment (ECF No. 239).

         On September 14, 2016, respondents filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) (ECF No. 240). Riley filed an opposition to that motion on October 28, 2016 (ECF No. 246). Respondents filed a reply on December 5, 2016 (ECF No. 248).

         Respondents argue in support of their motion that a series of unpublished orders of the Nevada Supreme Court has undermined the interpretation of Nevada law that was the premise for court of appeals' ruling.

         The portion of the court of appeals' ruling that is the subject of respondents' motion concerns the question of what the elements of first-degree murder were under Nevada law at the time of Riley's trial and when his conviction became final -- that is, whether “deliberation” was a separate and discrete element of the crime of first-degree murder. With respect to that issue, the court of appeals held:

It is clear ... that at the time Riley was tried in 1990, and at the time his conviction became final in 1991, deliberation was a discrete element of first-degree murder in Nevada. In Hern v. State, 635 P.2d 278, 280 (Nev. 1981), decided a decade earlier, the Nevada Supreme Court explained 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.” [Footnote 8: The Hern rule was by no means novel. See, e.g., State v. Hing, 16 Nev. 307, 308 (1881) (“[W]illfulness, deliberation, and premeditation ... are essential constituents of the crime of murder of the first degree.”).] Then, a year after Riley's conviction became final, the Nevada Supreme Court changed its mind in Powell v. State, 838 P.2d 921 (Nev. 1992), vacated on other grounds, 551 U.S. 79 (1994). In approving the use of the Kazalyn instruction, it held that “deliberate, premeditated and willful are a single phrase, meaning simply that the actor intended to commit the act and intended death to result.” Id. at 927. It called the three elements “redundan[t].” Id. Less than a decade later, in Byford v. State, 994 P.2d 700 (Nev. 2000), the Nevada Supreme Court again reversed course, abrogating Powell. It concluded that Powell -- and the Kazalyn instruction it approved -- had “confuse[d] ... premeditation and deliberation.” Id. at 713. The instruction, the court held, “blur[red] the distinction between first- and second-degree murder, ” and subsequent case law's “further reduction of premeditation and deliberation to simply ‘intent' unacceptably carrie[d] this blurring to a complete erasure.” Id.
In Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), we concluded that the use of the Kazalyn instruction violated the Due Process Clause of the United States Constitution. Polk held that the instruction “relieved the state of the burden of proof on whether the killing was deliberate as well as premeditated.” Id. at 910 (applying Sandstrom v. Montana, 442 U.S. 510, 521 (1979)). In Polk, the petitioner had been convicted after Powell but before Byford; we concluded that Nevada law during that time included deliberation as a distinct element because, we reasoned, Byford was not a change in Nevada law but rather a “reaffirm[ation]” that its first-degree murder statute contained three mens rea elements. Id. After Polk was decided, however, the Nevada Supreme Court clarified in Nika v. State, 198 P.3d 839, 849 (Nev. 2008), that “Byford announced a change in state law.” On that basis we partially overruled Polk, holding in Babb v. Lozowsky, 719 F.3d 1019, 1028-30 (9th Cir. 2013), that the use of the Kazalyn instruction between Powell and Byford did not constitute a due process violation because during that time, first-degree murder in Nevada included only one (merged) mens rea element, which the instruction accurately described. Babb did nothing, however, to disturb Polk's underlying analysis: Polk continues to dictate that the Kazalyn instruction violates due process if, at the time it was given, Nevada law required the state to prove deliberation as a discrete mens rea element.
As already noted, at the time of Riley's trial and at the time his conviction became final, Nevada's first-degree murder law did indeed contain three separate mens rea elements. In Byford and Nika, the Nevada Supreme Court reiterated that Powell, decided in 1992, after Riley's conviction became final, represented a departure from prior precedent holding that the state was required to prove deliberation separately from premeditation. Byford explained that it was a “rather recent phenomenon” that deliberation was “neglect[ed] ... as an independent element, ” and traced this trend to Powell, which overlooked earlier pronouncements [such as Hern] which recognized that ‘deliberate' and ‘premeditated' define distinct elements.” 994 P.2d at 713-14. Nika characterized Byford as abandon[ing] the line of cases starting with Powell.” 198 P.3d at 847 (emphasis added); see also id. at 849 (“Byford ‘abandoned' that precedent -- Powell and its progeny.”).
Because Nevada law treated deliberation as a distinct element of first-degree murder at the time Riley was convicted and at the time his conviction became final, the use of the Kazalyn instruction at his trial constituted a due process violation under the United State Constitution. Polk, 503 F.3d at 910.

Riley, 786 F.3d at 723-24 (emphasis in original) (footnote 7 omitted; footnote 8 included).

         Respondents argue that this analysis has been undermined by Adams v. State, Case No. 60606, 2016 WL 315171 (Nev. Jan. 22, 2016), Canape v. State, Case No. 62843, 2016 WL 2957130 (Nev. May 19, 2016), and Leavitt v. State, Case No. 69218, 2016 WL 5399785 (Nev. Sept. 16, 2016), three unpublished orders issued by the Nevada Supreme Court after the court of appeals' ruling in this case.

         In Adams, a murder case in which the trial was held, and the conviction became final, before the Nevada Supreme Court's Powell decision, the Nevada Supreme Court rejected an argument by the habeas petitioner that he was actually innocent of first-degree murder because the trial court gave the Kazalyn instruction; the Nevada Supreme Court found that argument to be flawed because, even assuming that the Kazalyn instruction was improper, “that deficiency would not establish that he is actually innocent of first-degree murder, which requires a showing that he is factually innocent.” Adams, 2016 WL 315171 at *2 (emphasis in original). In a footnote, the court added:

We also do not agree with the underlying premise of his argument. See Nika, 124 Nev. at 1280-87, 198 P.3d at 845-48 (discussing history of Nevada law on the phrase “willful, deliberate, and premeditated, ” including Hern, and explaining that prior to Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), this court had not required separate definitions of the terms and had instead viewed them as together conveying a meaning that was sufficiently described by the definition of “premeditation” eventually approved in Kazalyn and Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992)).

Id. at *2 n.3.

         In Canape, a Nevada murder case in which the trial occurred before the Powell decision, but the conviction became final after the Powell decision, the Nevada Supreme Court rejected the petitioner's argument that his ...


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