- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 08-15-2014
- Case #: 12-15795
- Judge(s)/Court Below: Circuit Judge Tashima for the Court; Circuit Judges Farris and McKeown
- Full Text Opinion
Ray Oshun Moore participated in a robbery during which his co-defendant shot and killed a food delivery driver. Moore, along with his co-defendant waited outside of an apartment complex and planned to rob four individuals within the complex of money and drugs. After the robbery and killing, Moore admitted to police that he was involved with the murder but did not shoot the delivery driver. He was charged with first degree murder, robbery, and conspiracy to commit robbery. At his trial, the jury was given a Kazalyn instruction as to the premeditated and deliberate murder. On September 24, 1999, Moore was convicted of all three charges. In 2000, the Nevada Supreme Court issued a ruling that invalidated the Kazalyn instruction stating that the instruction “improperly blurred the distinction between first and second degree murder by failing to provide an independent definition of ‘deliberation’. . .”. Henceforth, there were new instructions set forth for first degree murder. The Nevada Supreme Court concluded that this new definition would be applied to cases pending direct appeal. Moore filed a petition for a writ of habeas corpus arguing that since his case was pending appeal, his murder conviction should be reversed because the trial court gave the old instruction. The district court granted the petition. The panel previously recognized that the two ways a petitioner could show an unreasonable application of federal law are: (1) if the state court identifies the correct legal rule but applies it incorrectly to the facts and, (2) if the court unreasonably extends the legal principle to a new context where it should not apply, or refused to extend the principle to a new context where it needs to apply. Here, the panel determined that the lower court did not unreasonably apply “clearly established federal law”, when it declined to retroactively apply the newly established law and reversed the district court’s grant of Moore’s petition. REVERSED and REMANDED.