Billy Riley v. E. McDaniel
786 F.3d 719
9th Cir.2015Background
- Riley shot and killed Albert "Ramrod" Bollin in 1990; he was convicted of robbery (life without parole) and first-degree murder (death sentence). Only the murder conviction and sentence were challenged on federal habeas.
- At trial, a Nevada jury heard eyewitness and corroborating testimony that Riley was tearful, emotionally agitated, and had smoked crack immediately before the shooting; the jury convicted on a general verdict form.
- The jury was instructed with the Nevada "Kazalyn" instruction, which defines deliberation as part of premeditation rather than as a separate element. No instruction gave independent meaning to "deliberate."
- At the time of Riley’s trial and finality (1990–1991), Nevada law treated deliberation as a distinct element of first-degree murder; the Kazalyn instruction therefore misstated the elements required to be proved beyond a reasonable doubt.
- The prosecutor relied heavily on the Kazalyn instruction in closing, arguing that successive thoughts satisfied first-degree murder; the jury was also instructed on felony-murder but returned a general verdict, so it is unclear on which theory the jury relied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Kazalyn instruction violated due process by collapsing deliberation into premeditation | Riley: instruction relieved state of proving deliberation as a separate element | State: at times Nevada law merged elements; instruction was acceptable and jury could have convicted on felony-murder | Court: Instruction violated due process because Nevada law at Riley's conviction required deliberation as distinct (constitutional error) |
| Standard of federal review for unadjudicated state claim | Riley: claim not adjudicated on merits in state court; federal review de novo | State: procedural default arguments (Nev. Rev. Stat. §34.810) | Court: de novo review; §34.810 not a consistent bar, so AEDPA §2254(d) inapplicable |
| Whether instructional error was harmless (prejudice) | Riley: evidence of intoxication and emotional agitation could create reasonable doubt as to deliberation; prosecutor emphasized flawed instruction | State: evidence could support deliberation; jury could have convicted under felony-murder; defense did not argue intoxication/deliberation | Court: Not harmless — grave doubt remains whether jury found deliberation; prosecutor’s reliance and general verdict require reversal |
| Remedy | Riley: seek relief (vacatur) | State: could retry | Court: Reverse and remand with instruction to grant writ unless State elects new trial within reasonable time |
Key Cases Cited
- Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007) (Kazalyn instruction relieves state of proving deliberation when deliberation is distinct)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard for federal habeas review: "substantial and injurious effect")
- Sandstrom v. Montana, 442 U.S. 510 (1979) (due process prohibits instructions that shift burden to defendant by presuming intent)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013) (Kazalyn instruction constitutional when state law had merged deliberation and premeditation)
- Byford v. State, 994 P.2d 700 (Nev. 2000) (Nevada Supreme Court held deliberation is a distinct element; abrogated Powell)
- Hern v. State, 635 P.2d 278 (Nev. 1981) (earlier Nevada precedent holding willfulness, deliberation, and premeditation are separate elements)