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Getz v. Palmer

United States District Court, D. Nevada

December 29, 2017

JACK DAVID GETZ, Petitioner,
v.
JACK PALMER, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         On July 17, 2017, the United States Court of Appeals for the Ninth Circuit entered an amended memorandum decision reversing and remanding this Court's final order and judgment in this case (ECF Nos. 92, 93) “for consideration in accord with Moore v. Helling, 763 F.3d 1011 (2014).” (ECF No. 112.)

         Entered March 28, 2014, the final order and judgment granted petitioner Getz habeas relief based on this Court's determination that the state court violated his constitutional right to due process by using an improper jury instruction - the Kazalyn instruction[1] - to define the elements of first degree murder. (ECF No. 92 at 11-16.) In granting relief, this Court relied on Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), which also involved a habeas claim by a petitioner who was convicted of first degree murder under the Kazalyn instruction. (Id. at 12-13.) The court in Babb had concluded that, because the defendant's conviction had yet to become final when the Nevada Supreme Court issued a decision invalidating the Kazalyn instruction (Byford v. State, 994 P.2d 700 (Nev. 2000)), [2] “it was an unreasonable application of established federal law [under 28 U.S.C. § 2254(d)(1)] 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.” Babb, 719 F.3d at 1032.

         The court in Moore held that, due to the Supreme Court's intervening decision in White v. Woodall, 134 S.Ct. 1697 (2014), Babb is no longer good law with respect to defendants whose convictions became final prior to Bunkley v. Florida, 538 U.S. 835 (2003).[3] Moore, 763 F.3d at 1021. The Moore court noted that Woodall rejected “the unreasonable-refusal-to-extend rule, ” which had allowed habeas petitioners in the Ninth Circuit to show unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1) in cases where the state court unreasonably refused to extend a legal principle from Supreme Court precedent to a new context where it should apply. Id. at 1015. The Moore court concluded that the decision in Babb could not survive Woodall because it relied on the unreasonable-refusal-to-extend rule - i.e., Babb used Bunkley to conclude that the Nevada Supreme Court unreasonably applied clearly established federal law even though Bunkley had yet to be decided when the state court issued its relevant decision. Id. at 1021.

         In the memorandum decision remanding this case, the Court of Appeals stated:

Because Moore's conviction was final before Bunkley was issued, we determined that the Nevada Supreme Court did not unreasonably apply clearly established Supreme Court law when it declined to apply the Byford instruction in his case. [Moore, 763 F.3d at 1021-22.] Therefore, we likewise hold that the Nevada Supreme Court did not unreasonably apply clearly established Supreme Court law when it declined to apply Byford in Getz's case, who is in the same procedural posture as defendant Moore: his conviction was final on June 11, 2002, prior to Bunkley.

(ECF No. 112 at 5.) In addition, the Court of Appeals also explicitly determined that use of the Kazalyn instruction at Getz's trial did not violate his constitutional rights:

Getz has . . . failed to show that the trial court's use of the Kazalyn instruction violated his due process rights. The use of the Kazalyn instruction at Getz's trial did not do so, because at that time in Nevada, first degree murder had only one, inclusive mens rea element, as it is described in the Kazalyn instruction.

(Id. at 5-6.)

         Based on the foregoing, this Court is precluded from granting habeas relief on Claim Two of Getz's amended petition (ECF No. 68) - i.e., the claim premised on the state court's use of the Kazalyn instruction. See Insurance Group Committee v. Denver & R. G. W. R. Co., 329 U.S. 607, 612 (1947) (“When matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court.”). The Court has disposed of the other two claims in the petition in previous orders. (ECF Nos. 77/92.) Thus, the amended petition will be denied.

         1. Motion for additional briefing.

         Getz has filed a motion for leave to file a supplemental brief on remand. (ECF No. 114.) Getz argues that Moore does not foreclose habeas relief for him because there is “a critical procedural difference between his case and the one that existed in Moore, ” that being “a reviewable state court post-conviction decision on the relevant due process issue that post-dates Bunkley.” (ECF No. 114 at 4.) He notes that, after Bunkley had been decided, he argued “in a properly filed post-conviction petition that due process required Byford be applied to his case, ” but the Nevada Supreme Court rejected the argument in a 2006 decision. (Id.)

         Getz's “critical procedural difference” argument is without merit. Notwithstanding Getz's assertion to the contrary, the relevant state court decision was the Nevada Supreme Court's March 2002 decision, in which the court adjudicated Getz's Byford claim on the merits and affirmed his conviction. (ECF No. 32-4.) The Nevada Supreme Court abstained from addressing Getz's Byford claim on the merits in its 2006 decision, stating as follows:

Getz contends the district court erred by denying his claims that the jury instruction merging premeditation and deliberation was improper in light of Byford v. State, and that Byford should have been applied retroactively. This court previously rejected these arguments in Getz's direct appeal. The doctrine of the law of the case barred further consideration of these claims, and Getz cannot avoid this doctrine by raising a “more ...

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