Jack David GETZ, Petitioner-Appellee, v. Jack PALMER and Attorney General of the State of Nevada, Respondents-Appellants, 700 F. App'x 571

ORDER The memorandum disposition, filed on May 26, 2017, is amended as follows: On page 3, line 18, replace the entire sentence beginning with “The use of the Kazalyn instruction...” with: “The use of the Ka-zalyn instruction at Getz’s trial did not do so, because at that time in Nevada, first-degree murder had only one, inclusive mens rea element, as it is described in the Kazalyn instruction.” With the foregoing amendment, Getz’s petition for panel rehearing, filed June 9, 2017, is DENIED. Judge Smith votes to deny the petition for rehearing en banc, and Judge Wallace and Judge Erickson so recommend.

The full court has been advised of the petition for rehearing en banc, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc, filed the same date, is DENIED. No further petitions shall be entertained. MEMORANDUM The State of Nevada appeals from the district court’s grant of Jack Getz’s petition for a writ of habeas corpus, seeking reversal in light of our court’s decision in Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014). We review de novo, McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008), and we reverse and remand.

On February 14, 2000, a jury found Getz guilty of first degree murder after receiving the state Kazalyn instruction regarding premeditation. See Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578 (1992) (premeditation instruction in first degree murder cases sufficiently distinguishes between “premeditation and malice aforethought”). Two weeks after his jury conviction, the Nevada Supreme Court decided in Byford v.

State, 116 Nev. 215, 235-36, 994 P.2d 700 (2000), that the Kazalyn instruction should no longer be given because premeditation and deliberation should be considered separate elements required to convict for first degree murder. Subsequently, the United States Supreme Court decided in Bunkley v. Florida, 538 U.S. 835, 841, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003), that where a potentially exonerating change in state law occurs before a defendant’s conviction is final, due process requires the state to apply the change to the defendant’s conviction. Relying on Bunkley, we decided in Babb v.

Lozowsky, 719 F.3d 1019, 1030-33 (9th Cir. 2013), that it was a violation of clearly established United States Supreme Court law not to apply the new Byford instruction in cases where a defendant’s conviction was not final when Byford issued. Getz’s conviction was affirmed by the Nevada Supreme Court on March 13, 2002, and became final on June 11, 2002. The district court therefore determined that Getz was entitled to habeas relief under Babb. One month later, the United States Supreme Court issued its opinion in White v. Woodall, — U.S. —, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014).

In Woodall, the Supreme Court held that relief under 28 U.S.C. § 2254(

d) is prohibited where there can be “fairminded disagreement” on the question of whether changes in state law apply to cases pending on direct review when the law is changed. Id. at 1702. Our court then determined in Moore v. Helling that Woodall effectively overruled Babb. Moore, 763 F.3d at 1021-22. Because Moore’s conviction was final before Bunk-ley was issued, we determined that the Nevada Supreme Court did not unreasonably apply clearly established Supreme Court law when it declined to apply the Byford instruction in his case. Id.

Therefore, we likewise hold that the Nevada' Supreme Court did not unreasonably apply clearly established Supreme Court law when it declined to apply Byford in Getz’s case, who is in the same procedural posture as defendant Moore: his conviction was final on June 11, 2002, prior to Bunkley. Getz has thus failed to show that the trial court’s use of the Kazalyn instruction violated his due process rights. The use of the Kazalyn instruction at Getz’s trial did not do so, because at that time in Nevada, first-degree'murder had only one, inclusive mens rea element, as it is described in the Kazalyn instruction.

REVERSED and REMANDED for consideration in accord with Moore v. Helling, 763 F.3d 1011 (9th Cir. 2014). This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.