Babb v. Lozowsky, 719 F.3d 1019

Babb was convicted in Nevada state court of first-degree murder with a deadly weapon and robbery with a deadly weapon, receiving consecutive life with no parole for murder and concurrent terms for robbery.
The jury was instructed with Kazalyn first-degree murder instruction merging premeditation and deliberation, and with a felony-murder theory instruction.
The district court granted habeas relief under AEDPA, concluding the Kazalyn instruction violated due process and that Byford v. State narrowed the law; the court found the error not harmless.
Nevada Supreme Court initially upheld the convictions; the federal district court then remanded to consider whether changes in state law (Byford) should apply retroactively to Babb’s case, given timing of finality.
The Ninth Circuit reversed, holding that Nika v. State (2008) changed the understanding of Byford as a change in law, not a clarification, and that retroactive application and harmless-error standards favored relief.
The panel concluded that applying Byford to Babb’s case was required and that the error was harmless only because the evidence supported a valid felony-murder theory, given the general verdict and the prosecutor’s emphasis on felony murder.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kazalyn violates due process as a misdefined first-degree murder instruction	Babb argues Kazalyn collapses premeditation and deliberation, violating due process.	State asserts Byford’s separate definitions were not required under pre-Byford Nevada law at the time of trial, so Kazalyn was valid.	No; the instruction violated due process under controlling retroactivity principles.
Whether Byford’s change should be applied to Babb’s finality status	Babb should receive Byford’s narrowed definition because the change predated finality.	Applied state-law change retroactively only if consistent with federal due process; Nika controls application.	Yes; Byford’s narrowing should apply to Babb, given timing and due-process concerns.
Whether the error was harmless given a general verdict	Harmless error should be tested under Brecht; error may have affected verdict.	Because felony-murder theory supported conviction, the Kazalyn error was harmless.	Harmless error; the conviction could rest on felony-murder theory, so no reversal for that issue.

Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007) (Kazalyn instruction unconstitutional under federal due process)
Byford v. State, 994 P.2d 700 (Nev. 2000) (separate definitions for willfulness, deliberation, and premeditation)
Nika v. State, 198 P.3d 839 (Nev. 2008) (Byford represented a change in law, not a mere clarification)
Gamer v. State, 6 P.3d 1081 (Nev. 2000) (pre-Byford case addressing Kazalyn instruction)
Garner v. State, 6 P.3d 1013 (Nev. 2000) (new murder instructions not applied to direct-review cases)
Bunkley v. Florida, 538 U.S. 835 (U.S. 2003) (retroactivity of changes in state law; pocketknife exception)
Griffith v. Kentucky, 479 U.S. 314 (U.S. 1987) (new rules apply to convictions not final at time of change)
Fiore v. White, 531 U.S. 225 (U.S. 2001) (clarification vs. change in state law for retroactivity)
Hedgpeth v. Pulido, 555 U.S. 57 (U.S. 2008) (harmless error review in general-verdict contexts)
United States v. Gaudin, 515 U.S. 506 (U.S. 1995) (elements vs. non-elements in jury instructions)
Neder v. United States, 527 U.S. 1 (U.S. 1999) (standard for reviewing instructional errors)
In re Winship, 397 U.S. 358 (U.S. 1970) (proof beyond a reasonable doubt required for elements)