Jack Getz v. Jack Palmer, 14-15816

Jack Getz was convicted by a Nevada jury of first-degree murder (Feb. 14, 2000) using the Nevada Kazalyn premeditation instruction.
Two weeks after his conviction, the Nevada Supreme Court decided Byford v. State, altering the law to treat premeditation and deliberation as separate elements for first-degree murder.
The U.S. Supreme Court in Bunkley v. Florida held that when a potentially exonerating change in state law occurs before a conviction is final, due process may require retroactive application.
The Ninth Circuit in Babb v. Lozowsky held that Byford had to be applied where a defendant’s conviction was not yet final when Byford issued; Getz’s conviction became final on June 11, 2002, after the Nevada Supreme Court affirmed it in March 2002.
After White v. Woodall, which allowed relief only where no fairminded disagreement exists about applying state-law changes on direct review, this court in Moore v. Helling concluded Woodall effectively overruled Babb.
Applying Moore, the panel held the Nevada Supreme Court did not unreasonably apply clearly established federal law by declining to apply Byford to Getz, so Getz’s due process challenge failed.

Issue	Getz's Argument	Nevada's Argument	Held
Whether Byford’s rule required retroactive application to Getz	Byford changed elements; under Bunkley and Babb, Getz’s nonfinal conviction required Byford’s application	After Woodall and Moore, fairminded disagreement exists; state court’s refusal was reasonable	Court reversed district court: Nevada did not unreasonably apply Supreme Court law; Getz not entitled to relief
Whether use of Kazalyn instruction violated due process	Kazalyn conflated premeditation/deliberation, violating due process once Byford issued	At the time of trial Kazalyn properly stated Nevada law; no due process violation shown	Use of Kazalyn did not violate due process in Getz’s procedural posture

Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014) (held White v. Woodall displaced Babb and declined retroactive application where conviction was final before Bunkley)
Bunkley v. Florida, 538 U.S. 835 (2003) (due process requires applying a state-law change that could be exonerating when it occurs before conviction is final)
White v. Woodall, 134 S. Ct. 1697 (2014) (§ 2254(d) bars relief where fairminded disagreement exists about applying state-law changes to cases pending on direct review)
Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013) (pre-White decision requiring application of Byford to convictions not yet final when Byford issued)
Byford v. State, 116 Nev. 215 (2000) (Nevada rule separating premeditation and deliberation as distinct elements)
Kazalyn v. State, 108 Nev. 67 (1992) (approved single-instruction formulation for premeditation in first-degree murder cases)