Christopher Williams v. James Schomig ( 2009 )

FILED
NOT FOR PUBLICATION DEC 17 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER GARTH WILLIAMS, No. 08-16644
Petitioner - Appellant, D.C. No. 2:03-CV-00298-RCJ-RJJ
v.
MEMORANDUM *
JAMES SCHOMIG,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted December 8, 2009
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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“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 (2008); Neder v. United
States, 527 U.S. 1, 8 (1999); In re Winship, 397 U.S. 358, 364 (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 (citations and internal quotation
marks omitted).
The trial court erred in giving the Kazalyn1 instruction to the jury. Nika v.
State, 198 P.3d 839 (Nev. 2008). However, the Nevada Supreme Court’s denial of
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The instruction given was derived from Kazalyn v. State, 825 P.2d 578
(Nev. 1992), and made no distinction among the first-degree murder elements of
premeditation, deliberation and willfulness.
2
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 Kazayln instruction
did not affect the verdict. See Neder, 527 U.S. at 19-20 (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 certificate of appealability. See Mendez v. Knowles, 556 F.3d 757, 770-
71 (9th Cir. 2009).
AFFIRMED.
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