Christopher Garth WILLIAMS, Petitioner-Appellant, v. James SCHOMIG, Respondent-Appellee, 358 F. App'x 992

MEMORANDUM Appellant Christopher Williams (Williams) challenges the district court’s denial of his habeas petition, contending that his constitutional rights were violated because the jury instructions on first-degree murder did not define “willful” and “deliberate.” Because Williams’s habeas petition was filed after 1996, his claim is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Byrd v.

Lewis, 566 F.3d 855, 859 (9th Cir.2009). “Under AEDPA, [Williams’s] petition can be granted only if the state court determination resolving his claims was contrary to, or involved an unreasonable application of, clearly established Federal law ...” Id. (citation and internal quotation marks omitted). It is clearly established federal law as set forth by the Supreme Court, that an instructional error on an element of the offense may constitute a constitutional violation and that harmless error analysis is appropriate. See Hedgpeth v. Pulido, — U.S. ---, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008); Neder v.

United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In “determining whether a constitutional error is harmless,” the test “is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder, 527 U.S. at 15, 119 S.Ct. 1827 (citations and internal quotation marks omitted). The trial court erred in giving the Kazalyn instruction to the jury. Nika v. State, 198 P.3d 839 (Nev.2008).

However, the Nevada Supreme Court’s denial of Williams’s instructional error claim was not contrary to or an unreasonable application of governing Supreme Court precedent. Overwhelming evidence in the record convinces us beyond a reasonable doubt that use of the Kazalyn instruction did not affect the verdict. See Neder, 527 U.S. at 19-20, 119 S.Ct. 1827 (concluding that instructional error is harmless where the record contained no evidence that could rationally lead to a contrary finding). Because Williams is unable to make the requisite showing, we decline to' expand the certifícate of appealability.

See Mendez v. Knowles, 556 F.3d 757, 770-71 (9th Cir.2009). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . The instruction given was derived from Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992), and made no distinction among the first-degree murder elements of premeditation, deliberation and willfulness.