Peter Elvik v. Renee Baker

concurring in part and dissenting in part:

I concur with the conclusion of the majority that the district court “was not obligated to develop alternative theories to support the Nevada Supreme Court’s decision.” I also agree that defendant’s knowledge of wrongfulness is a prerequisite to punishment under Nev.Rev.Stat. § 194.010(2). I respectfully dissent, however, from the conclusion that “[t]he trial court’s failure to provide a jury instrüction regarding Nev.Rev.Stat. § 194.010 was not harmless.”

As the majority observes, “[t]he government argues that, even without the instruction, the record contains strong evidence indicating that Elvik understood the wrongfulness of his actions.” It goes on, however, to state that “[t]his record includes other evidence that could have led a jury to conclude that Elvik did not understand that what he did was wrong.” It is with this latter finding that I respectfully disagree.

In my view, the record evidence is not “so evenly balanced” that a judge could feel “in virtual equipoise as to the harmlessness of the error” or have “grave doubt about whether an error affected a jury [substantially and injuriously].... ” Merolillo, 668 F.3d at 454…

MEMORANDUM **

The Nevada Attorney General appeals the district court’s order conditionally granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus petition, challenging his conviction of open murder and robbery with the use of a deadly weapon.

On appeal, the government does not argue that the district court erred in determining that the Nevada Supreme Court was unreasonable in holding that the trial court not was required to give an instruction based on Nev.Rev.Stat. § 194.010(2). Instead, the government argues that (1) the district court was obligated to develop alternative theories to support the Nevada Supreme Court’s decision, and (2) the district court erred by concluding that the error was not harmless.

1. The district court was not obligated to develop alternative theories to support the Nevada Supreme Court’s decision. The Nevada Supreme Court did not provide a summary decision without reasoning, as in Harrington v. Richter, 562 U.S. 86, 96 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011), or a decision that failed to address one of the claims, as in Johnson v. Williams, —U.S.-, 133 S.Ct. 1088, 1096-97 , 185 L.Ed.2d 105 (2013). Instead, the Nevada Supreme Court provided a…

FILED

NOT FOR PUBLICATION MAY 06 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER ELVIK, No. 13-17530

Petitioner - Appellee, D.C. No. 3:04-cv-00471-GMN-

WGC

v.

RENEE BAKER and ATTORNEY MEMORANDUM*

GENERAL OF THE STATE OF

NEVADA,

Respondents - Appellants.

PETER ELVIK, No. 14-15126

Petitioner - Appellant, D.C. No. 3:04-cv-00471-GMN-

WGC

v.

RENEE BAKER and ATTORNEY

GENERAL OF THE STATE OF

NEVADA,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Gloria M. Navarro, Chief District Judge, Presiding

Argued and Submitted April 14, 2015 San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and KRONSTADT,** District Judge.

The Nevada Attorney General appeals the district court’s order conditionally

granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus…