Lead Opinion
Opinion by Judge TIMLON; Dissent by Judge WALLACE.
Roger Chambers appeals the district court’s denial of his second amended petition for habeas corpus, under 28 U.S.C. § 2254, challenging his conviction for murder in the first degree and his sentence of two consecutive sentences of life without the possibility of parole by a Nevada state trial court. We have jurisdiction pursuant to 28 U.S.C. § 2253. We hold that Chambers’ federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation. The error was not harmless. Accordingly, we reverse and remand to the district court to grant the writ unless the State elects to retry Chambers within a reasonable time.
BACKGROUND
A. Factual Background
In 1994, Chambers was convicted of first degree murder with the use of a deadly weapon by a jury in a Nevada state trial court, and Chambers was sentenced to death.
The charges and conviction arose out of an altercation between Chambers, a chef by profession, and Henry Chacon on September 28, 1993. Chambers met Chacon while traveling by bus from San Francisco to Reno. While on the bus, Chambers and Chacon became acquainted and ingested alcohol and cocaine together. Upon arriving in Reno, they rented a hotel room to share in the Circus Circus casino and hotel. Chambers and Chacon went to the room together, but Chambers subsequently went downstairs and played poker. When he returned to the room, he found Chacon burning heroin to smoke on Chamber’s set of professional chef knives. When Chambers saw this, he became angry, and the two began to fight. According to Chambers, Chacon initially stabbed Chambers with a knife, but Chambers got the knife away from Chacon. A struggle ensued, which resulted in Chacon’s death.
The morning after the fight, Chambers went to the Washoe Medical Center. When asked why he was there, Chambers responded, “There’s a dead body in the room.” He then stated that he did not mean to do it. Hospital staff checked Chambers into the hospital, noting that he appeared to be intoxicated, as he was unsteady and his speech was rapid and disjointed. A nurse administered a breathalyzer test, which showed a blood alcohol level of 0.27.
The police arrived to interview Chambers, who admitted that he had killed someone and that the victim was in the bathtub. Chambers told the police officers how he and Chacon had met, and stated that he had got angry when he saw Cha-con cooking heroin on one of the knives he used in his profession. Chambers asserted that Chacon had stabbed him first, and that he wrestled the knife away from Cha-con and stabbed him back several times. He repeatedly told the police officers that he stabbed Chacon in self-defense.
Based on Chambers’ statement, the police went to Circus Circus where they discovered Chacon’s body in the hotel room’s bathtub. In the bathroom, they also located a black canvas bag with several pockets holding knives and other kitchen utensils. Also next to the sink the police found two knives, with sooty deposit on the blades suggesting that they were used to smoke heroin.
Police subsequently took Chambers into custody, and he was transported to the
At trial, the results of the autopsy of Chacon were presented into evidence. The coroner testified that Chacon had seventeen stab wounds, most of which were superficial. However, two stab wounds were significant: one into the front chest that passed through the lung and the sack covering the heart, and the second in the back that also passed into the chest and into a lung, causing the collapse of the lung.
A jury found Chambers guilty of first-degree murder and also found two aggravating circumstances warranting a death sentence. Chambers was sentenced to death.
B. Procedural Background
Chambers appealed his conviction to the Nevada Supreme Court, challenging the reasonable doubt jury instruction, the admission of certain evidence, and the court’s failure to properly admonish the jury. He also argued that the death penalty was excessive and should be set aside. The Nevada Supreme Court affirmed the conviction, but set aside the death penalty, directing the imposition of a life sentence without the possibility of parole. Following a petition for writ of mandamus by the State arguing that the appropriate sentence was two life sentences without the possibility of parole, the Nevada Supreme Court granted the writ, and Chambers was resentenced to serve two consecutive life terms without the possibility of parole.
Chambers then filed a petition styled as a “Notice of Appeal; Writ of Habeas Corpus/Post-Conviction Petition” in the Nevada state trial court. The court dismissed the petition, but upon appeal the Nevada Supreme Court reversed the dismissal, finding that the trial court improperly construed this document as a habeas corpus petition, when it was simply a notice of Chambers’ future intent to file a habeas petition.
During this time, Chambers filed in the state trial court a habeas corpus petition asserting sixteen detailed claims for relief. After the court appointed counsel to proceed with the petition, an additional claim was added to the petition. The state trial court denied the petition on April 18, 2000. Chambers appealed, and the Nevada Supreme Court affirmed the denial of Chambers’ petition on July 12, 2001.
On July 27, 2001, Chambers filed a ha-beas corpus petition in federal district court. After the Federal Public Defender was appointed, Chambers filed a first amended petition alleging ten grounds for relief. The government filed a motion to dismiss, contending that Chambers had failed to exhaust his state court remedies as to five grounds for relief asserted by Chambers. The district court granted the motion to dismiss in part, finding four grounds for relief had not been exhausted, including Ground One of the Petition challenging the state court’s jury instruction on premeditation and deliberation as a violation of his constitutional right to due process.
In its Order, the federal district court gave Chambers the option of abandoning the unexhausted grounds and proceeding
On November 12, 2003, Chambers filed a Petition for Extraordinary Writ with the Nevada Supreme Court, alleging the four unexhausted grounds for relief. On December 3, 2003, the Nevada Supreme Court denied the petition, stating that “[w]e have considered the petition on file herein, and we are not satisfied that this court’s intervention by way of extraordinary relief is warranted at this time.”
After Chambers’ case was reopened in federal district court, Chambers refiled his second amended habeas petition (“petition”) on March 22, 2004. The State filed a motion to dismiss arguing that Chambers had failed to properly exhaust his state remedies when he filed the Petition for Extraordinary Writ in Nevada Supreme Court, and the district court denied that motion.
On December 13, 2006, after the State had answered Chambers’ petition, the district court denied the petition. Chambers filed this timely appeal.
EXHAUSTION
The State first argues that Chambers’ constitutional due process claim concerning the jury instruction on premeditation given at his trial is not properly brought to federal court because Chambers failed to exhaust his state remedies as to that claim. We review de novo whether a petitioner has exhausted state remedies. Greene v. Lambert,
A state prisoner must exhaust a federal constitutional claim in state court before a federal court may consider a claim. 28 U.S.C. § 2254(b)(1)(A), (c). The exhaustion requirement, first enunciated in Ex parte Royall,
Here, Chambers did not invoke one complete round of Nevada’s “established appellate review process” with regard to his due process claim concerning the premeditation jury instruction. He did raise the issue in his original habeas corpus petition filed in state trial court but, as the district court correctly found, he failed to identify the federal nature of the claim when he appealed the lower court’s decision of denial to the Nevada Supreme Court.
Subsequently, however, Chambers did raise his constitutional due process
The Nevada Supreme Court decided Chambers’ Petition for an Extraordinary Writ when it denied the petition. The court’s order is brief, stating simply: “This is a proper petition for an extraordinary writ. Petitioner challenges the validity of his judgment of conviction and sentence. We have considered the petition on file herein, and we are not satisfied that this court’s intervention by way of extraordinary relief is warranted at this time. Accordingly, we order the petition denied.” A footnote to the order elaborates on the Nevada Supreme Court’s rationale: “We have considered all proper person documents filed or received in this matter, and we conclude that the relief requested is not warranted.” (emphasis added).
Article VI, section 4 of the Nevada Constitution grants the Nevada Supreme Court original jurisdiction to issue writs. See Nev. Const. Art. VI, § 4 (“The [Nevada Supreme Court] shall also have power to issue writs of mandamus ... and habe-as corpus and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.”); see Blair v. Crawford,
Had the Nevada Supreme Court denied the petition without opinion, that denial would have brought Chambers’ claim within the reach of the Supreme Court’s holding in Castille,
Here, the Nevada Supreme Court did not deny without comment or opinion. Instead, the court issued an order stating that it had “considered the petition on file” and that its intervention “by way of extraordinary relief’ was not warranted at this time. Importantly, the court reiterated in the footnote that it “had considered” all the documents filed and received in the matter, and that it “concluded that the relief requested is not warranted.” Pursu
A fair and plausible reading of the Nevada Supreme Court’s order of denial is that the court considered the merits of Chambers’ claim, but was not persuaded as to its validity. The court did not state that it would not consider the claim, but rather that it would not “intervene.” In fact, in the footnote, the court explicitly stated that it had considered all the documents filed with the court, and that it had reached the conclusion that relief was not warranted. The most logical reading of this sparse text is that the court considered the arguments of the parties and the documentation filed by them and came to a conclusion about their merits. For a court to consider all the materials filed in conjunction with a petition for a writ and to then “conclude” that relief is not warranted strongly suggests that such a “conclusion” is on the merits. This order “cannot be fairly characterized as merely procedural. The court understood the nature of the claim and took pains to respond to it, albeit curtly and ambiguously.” Greene,
Even if this order is curt and ambiguous, we have previously addressed how to resolve an ambiguity of this kind. See id.; see Harris v. Superior Court,
Harris involved a so-called “postcard denial” from the California Supreme Court. We held in that case that the state court’s denial of a habeas petition on procedural grounds did not exhaust state remedies, but (citing Brown,344 U.S. at 449 n. 3,73 S.Ct. 397 ,97 L.Ed. 469 ) that the state court’s denial of a habeas petition on the merits did exhaust state remedies. Harris,500 F.2d at 1128-29 . We construed a bare postcard denial from the California Supreme Court as a decision on the merits, for purposes of the exhaustion requirement, unless that court expressly relied on a procedural bar. Id. In other words, although the state supreme court’s response was ambiguous, we adopted a plausible construction that it acted on the merits of a claim presented to it. We have not overruled Harris.
Greene,
Therefore, unless a court expressly (not implicitly) states that it is relying upon a procedural bar, we must construe an ambiguous state court response as acting on the merits of a claim, if such a construction is plausible. A comparison of the language in Harris — which was found to be a decision on the merits by the California Supreme Court — to the language used by the Nevada Supreme Court in the instant case is instructive. In Harris, the “postcard denial” found to be a decision on the merits merely stated “Petition for Writ of Habeas Corpus denied.” We noted in Harris that, in cases where the California Supreme Court relied upon procedural deficiencies as a basis for denying the petition, the court often included after the language of denial a “citation of an authority which indicates that the petition was procedurally deficient.”
In this case, even more than in Harris, it is appropriate to construe the state court’s order of denial as having been made on the merits. The Nevada Supreme Court here did more than issue a postcard denial. It stated in its order that it had “considered” all the materials filed by the parties, which indicates that it not only read the materials, but ruminated as to their merits. Then, the court stated it had “concluded” that intervention was not necessary. A conclusion that intervention is not necessary based on a consideration of all the documents filed is not a decision based on a procedural irregularity, but rather a decision on the merits.
The Ninth Circuit’s analysis of another order denying a petition for a writ of habe-as corpus by the Nevada Supreme Court is also instructive in construing the instant order. In Alexander v. Fogliani,
Finally, the language used by the Nevada Supreme Court in other cases involving petitions for extraordinary writs is illuminating. In Hosier v. State,
Here, the Nevada Supreme Court did not “decline to exercise its original jurisdiction to consider the petition.” Rather, unlike in Hosier, the Nevada Supreme Court stated that it did in fact consider the petition and all other filed documents and that it reached a conclusion based on that consideration. The contrast makes clear
Further, Hosiers discussion of policy reasons for denying the petition in that case on procedural grounds rather than ruling on the merits actually weighs in favor of construing the Nevada Supreme Court’s order here as on the merits. The Nevada Supreme Court points out in Hosier that “[o]riginal petitions are not accompanied by a complete record on appeal. Thus, this court’s ability to review claims challenging the judgment of conviction is seriously limited.” Id. at 213. Further, the Nevada Supreme Court’s appellate jurisdiction is limited to questions of law alone, and its “consideration of many petitions of this type would require this court to exceed its appellate jurisdiction because the claims presented often require eviden-tiary and factual determination.” Id.
Here, the question presented in this petition, whether the premeditation jury instruction given at Chambers’ trial violated his due process rights, is one of law. No factual determinations are necessary. Furthermore, the Nevada Supreme Court had all the materials it would have needed to consider this constitutional claim and reach a conclusion on the merits, as Chambers included the jury instruction at issue in the case. Therefore, the reasons that Hosier offers for declining to reach the merits of these petitions are not in play here.
In summary, we conclude that the Nevada Supreme Court’s order denying Chambers’ petition for extraordinary writ was made on the merits and that such denial satisfied the exhaustion requirement.
DUE PROCESS CLAIM
On the merits, Chambers contends that the state court’s rejection of his due process argument about the jury instruction on premeditation given at his trial “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Polk v. Sandoval,
As we did in Polk, we look here at “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process ... [T]he instruction ... must be considered in the context of the instructions as a whole and the trial record.” See Estelle v. McGuire,
Finally, just as in Polk, the State exacerbated the problem in its closing rebuttal argument by emphasizing the premeditation instruction, as support for its argument that the jury should find first-degree murder: “Premeditation can be successive, instantaneous thoughts of the mind. Doesn’t require it to be planned. Premeditation is pulling the knife, lifting your arm, and stabbing. Instantaneous thoughts of the mind to control movement. That’s all you need for premeditation. You read the law. That’s what it tells you.”
The State argues that the second-degree murder and manslaughter instructions given in this case specified the correct definitions and therefore the jury would have relied on those to clear up any confusion created by the instruction on premeditation. It belies common sense, however, to believe that a jury could have ascertained the correct standard for first-degree murder from a jury instruction for second-degree murder, when the actual instruction for first-degree murder is defective. Moreover, a review of the jury instructions shows that the jury was never instructed as to what the elements of second-degree murder were, but only defined it as “all other kinds of murder.” Such an instruction would not assist the jury in ascertaining what the different levels of intent were for first and second-degree murder. Therefore, we find that the instruction infected the entire trial so that the conviction of Chambers violated due process.
Our inquiry does not end here. Even though a constitutional error occurred, Chambers is not entitled to relief unless he can show that “the error had substantial and injurious effect or influence in determining the jury’s verdict.”
Further, “[t]he evidence against [Chambers] was not so great that it precluded a verdict of second-degree murder. The State’s evidence on deliberation was particularly weak.” Polk,
If anything, the evidence presented at trial seems to weigh in favor of second-degree murder committed while in the throes of a heated argument. The Nevada Supreme Court’s summary of the facts in Chambers’ trial amply demonstrates the weak state of the evidence of deliberation: “Chambers murdered the victim in a drunken state, which indicated no advanced planning, during an emotionally charged confrontation in which Chambers was wounded and his professional tools were being ruined.” Dennis v. State,
CONCLUSION
Chambers’ federal constitutional due process right was violated by the instructions given by the trial court at his murder trial, as they permitted the jury to convict him of first-degree murder without finding separately all three elements of that crime: willfulness, deliberation, and premeditation. The error was not harmless. The Nevada Supreme Court’s decision denying Chambers’ petition for an extraordinary writ and rejecting his due process claim was contrary to clearly established federal law. Thus, we reverse and remand to the district court with instructions to grant the writ of habeas corpus and order the State of Nevada to release Chambers, unless the State elects to retry Chambers within a reasonable amount of time.
REVERSED AND REMANDED.
Notes
. We therefore do not address Respondent’s arguments that “Polk was erroneously decided.”
. We are aware that the Supreme Court has granted certiorari in a recent Ninth Circuit case concerning instructional error, Pulido v. Chrones,
. Chambers raised other issues on appeal. In light of our decision to reverse based on the due process violation, we decline to reach those issues.
Dissenting Opinion
dissenting:
I respectfully dissent from the majority’s conclusion that Chambers exhausted his state court remedies. Therefore, I would deny Chambers’ petition for writ of habeas corpus and would remand to the district court to direct the petitioner to file his claims in the Nevada state courts.
The majority correctly sets forth that, pursuant to 28 U.S.C. § 2254(b)(1), a state prisoner must exhaust remedies available in state courts before a federal court may consider a claim. Exhaustion typically requires that “state prisoners ... give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel,
Second, the Nevada Supreme Court’s order denying Chambers’ petition for extraordinary writ did not dispose of his jury instructions claim on the merits. As described above, the Nevada Supreme Court may exercise its discretion to issue extraordinary writs only where the petitioner has “no plain, speedy and adequate remedy in the ordinary course of law.” Id. In this case, Chambers had a plain, speedy and adequate remedy: to follow the statutory procedures of filing an amended writ of habeas corpus, stating federal constitutional claims, in the state trial court, and then appealing any denial to the Nevada Supreme Court. The Nevada Supreme Court was thus not required to consider the merits of Chambers’ claim. Indeed, it would be surprising if the court had considered the merits, given that the traditional method of filing a writ of habeas corpus provided adequate relief. Thus, not surprisingly, the language of the order denying the petition for extraordinary writ does not state that the Nevada Supreme Court considered the merits of Chambers’ jury instruction claim.
This, of course, is where I part with the majority. No words in the order suggest that the Nevada Supreme Court decided the case on the merits; in fact, some language in the order suggests the opposite. Certainly the statement that the court “considered the petition” does not indicate that the court declined to issue the extraordinary writ on the merits of the constitutional claims. It is fair to assume that the Nevada Supreme Court carries out its judicial duty and considers each petition that comes before it. That is, the court reads the petition and evaluates whether it should exercise its discretion to issue the writ in cases where petitioners have no “plain, speedy and adequate remedy in the ordinary course of law.” Clearly, the words “considered the petition” alone do not indicate that the court evaluated the merits of petitioner’s claim.
Similarly, the majority construes the court’s use of the word “conclude” in its statement that extraordinary relief was not warranted as strongly suggesting that the court made its conclusion on the merits. That is too great of a jump for me. A more plausible reading is that the Nevada Supreme Court concluded that extraordinary relief was not warranted because petitioner could file an amended petition for writ of habeas corpus and follow traditional appellate procedures to bring the merits of the claim before the court. The language of the order supports this view. The order reads “we are not satisfied that this court’s intervention by way of extraordinary relief is warranted at this time.” (emphasis added). Is not this the key? The court’s statement that intervention was not “warranted at [that] time” leaves
The majority acknowledges that had the Nevada Supreme Court denied the petition without opinion, Castille v. Peoples would control and the claims presented for the first time to the Nevada Supreme Court would not be exhausted.
Relying on Greene v. Lambert, the majority construes the Nevada Supreme Court’s cursory statement as a decision on the merits of Chambers’ claim, even though the circumstances of Greene differ significantly from those of the instant case.
Unlike Greene, the Nevada Supreme Court in this case did no more than to deny the petition and to issue a summary statement regarding the denial. There is no fair way to construe the state court’s decision as having been made on the merits. The most natural characterization of the Nevada Supreme Court’s dismissal of the claim is that it did so on procedural grounds, given that the court explicitly held that the situation did not warrant intervention by way of extraordinary relief. Additionally, nothing in the court’s decision gives any indication of the “nature of the claim,” and the court’s decision does not suggest that the court “took pains to respond to [the claim].” Id. The court merely issued a short statement denying the petition.
The majority relies on the rule in Harris v. Superior Court that unless a court expressly states that it is relying upon a procedural bar, ambiguous responses should be construed to mean that the court acted on the merits of a claim, if such a construction is possible.
Similar reasoning distinguishes Alexander v. Fogliani,
Finally, the majority cites Hosier v. State for the proposition that the Nevada Supreme Court is “capable of clearly and unambiguously denying a petition for an extraordinary writ on procedural grounds,” and that the ambiguous language in this case must therefore be construed as a disposition on the merits.
While the history of Chambers’ appeals process has been long and complex, the federal court should not shortchange the state’s opportunity to evaluate all claims on their merits. We do not respect the state court system when we construe an order denying an extraordinary writ (where the court is only expected to review cases on the merits where extraordinary relief is necessary) as being a decision on the merits. The Nevada court system must have the full opportunity to address the merits of Chambers’ federal constitutional claims, and the order denying the extraordinary writ does not indicate that the Nevada Supreme Court has done so. There is, of course, a virtue in bringing litigation to a conclusion as soon as reasonably possible. But our system of federalism requires that state courts rule on the merits first — especially when a state crime involving a state-convicted criminal defendant is challenged in a habeas corpus proceeding. Therefore, I respectfully dissent.